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Exhibit 10.2.4
AGREEMENT REGARDING MARKETING OF ASTROLOGY CLUB
AGREEMENT entered into as of the 1st day of February 1998 by and between XXXXXXX
ENTERTAINMENT, INC., a corporation organized under the laws of Delaware with
offices at One Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000
(hereafter referred to as "Xxxxxxx") and ACCESS RESOURCE SERVICES, INC., a
Delaware corporation with offices at 0000 X. Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000 (hereafter referred to as "Access").
RECITALS:
X. Xxxxxxx and each of Psychic Readers Network, Inc., a Florida
corporation ("PRN") and Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxxxx Xxxxx (PRN and
the foregoing individuals are referred to as the "PRN Parties") are parties to
certain Non-Competition and Right of First Refusal Agreements dated September
10, 1996 (collectively referred to as the "Non-Compete Agreements"),
restricting, among other things, the right of the PRN Parties to engage in
certain businesses which compete with Xxxxxxx'x business, including, but not
limited to, membership clubs relating to astrology.
B. Access is controlled by one or more of the PRN Parties, and Access
and the PRN Parties have requested Xxxxxxx'x consent to Access marketing a
premium telephone psychic astrology club service billed on a monthly recurring
format.
X. Xxxxxxx is willing to consent to Access's marketing and providing to
its customers the Astrology Club using a 4250 Xxxx Record on the terms described
in this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
acknowledged by the parties, it is hereby agreed as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth below
when used in this Agreement:
i. The term "active member" means an Astrology Club customer
which is eligible for billing on a 4250 Record as a club
member.
ii. The term "Astrology Club" refers to a premium billed telephone
psychic astrology club service billed on a 4250 Xxxx Record.
iii. The term "4250 Xxxx Record" means a monthly recurring xxxx
format used to xxxx premium telephone services.
iv. The term "Xxxxxxx Fee" refers to the amounts due to Xxxxxxx
under this Section 2.
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2. CONSENT BY XXXXXXX. Xxxxxxx consents to Access marketing an Astrology Club
or Clubs and providing the services of such Astrology Clubs to Access's
customers using a 4250 Xxxx Record. Xxxxxxx shall have the right to terminate
this Agreement on thirty (30) days prior written notice to Access, and Access
shall cease the marketing of the Astrology Clubs on the date of termination
stated in Xxxxxxx'x notice (the "Termination Date"), provided, however, that
after the Termination Date, Access may continue to xxxx all 4250 Xxxx Records
generated by the Astrology Club on or prior to the Termination Date for amounts
due from customers of the Access Astrology Club as of the Termination Date, and
Access will continue to pay the Xxxxxxx Fee due with respect to active members
of the Astrology Club obtained by Access prior to the Termination Date.
3. XXXXXXX FEE. In consideration for Xxxxxxx'x consent, Access will pay
Xxxxxxx {Confidential portion omitted and filed separately with the Commission}
per month (commencing with February 1998) for each other active member of an
Astrology Club.
a. Access will pay the Xxxxxxx Fee to Xxxxxxx on a monthly basis,
within ten (10) business days after the end of each month in which
its Astrology Clubs have one or more active members. The first
monthly payment, which shall be due on June 15, 1998, shall cover
the months of February-May, 1998. Access will provide Xxxxxxx with a
monthly statement setting forth the calculation of the Xxxxxxx Fee,
and with copies of such billing records and other documents
reasonably requested by Xxxxxxx as supporting documentation for the
calculation of the Xxxxxxx Fee.
4. MISCELLANEOUS.
a. Access may not assign its rights and obligations under this
Agreement without the consent of Xxxxxxx.
b. Access represents and warrants to Xxxxxxx that Access is a
corporation, duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and has the
corporate power and authority to execute and deliver this Agreement,
to consummate the transactions hereby contemplated and to take all
other actions required to be taken by its pursuant to the provisions
hereof, and is not subject to, or a party to, any contract,
agreement, instrument, order, judgment or decree, or any other
restriction of any kind or character, which would prevent its entry
into the performance under this Agreement, and no consent of or
other action by or notice to any third party is required in
connection with Access's entering into and performing under this
Agreement.
c. Any notice or other communications required or permitted hereunder
shall be in writing and shall be deemed effective (a) upon personal
delivery, if delivered by hand and followed by notice by mail or
facsimile transmission; (b) one day after the date of delivery by
Federal Express or other nationally recognized courier service, if
delivered by priority overnight delivery between any two points
within
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the United States; or (c) five days after deposit in the mails, if
mailed by certified or registered mail (return receipt requested)
between any two points within the United States, and in each case of
mailing, postage prepaid, addressed to a party at its address first
set forth above, or such other address as shall be furnished in
writing by like notice by any such party.
d. No waiver by a party of any breach of this Agreement by the other
shall be deemed to be a waiver of any preceding or subsequent
breach.
e. This Agreement contains the entire understanding of the parties
hereto with respect to the subject matter contained herein.
f. Each party hereto intends that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person
other than the parties hereto and the other persons executing this
Agreement.
g. This Agreement may not be changed orally, but only by an agreement
in writing signed by the party or parties to be charged thereby.
h. This Agreement shall be governed by and construed in accordance with
the law of New York, including its choice of law rules. Any judicial
proceeding brought against any of the parties to this Agreement on
any dispute arising out of this Agreement or any matter related
hereto shall be brought in the courts of the State of New York in
New York County or in the United States District Court for the
Southern District of New York, and, by execution and delivery of
this Agreement, each of the parties to this Agreement accepts for
itself the jurisdiction of the aforesaid courts, irrevocably
consents to the service of any and all process in any action or
proceeding by the mailing of copies of such process to such party at
its address provided for the giving of notices under Section 6(b)
above, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. Each party hereto
irrevocably waives to the fullest extent permitted by law any
objection that it may now or hereafter have to the laying of the
venue of any judicial proceeding brought in such courts and any
claim that any such judicial proceeding has been brought in an
inconvenient forum.
i. This agreement does not constitute a joint venture or partnership by
the parties, and each party is entering into this Agreement as a
principal and not as an agent of the other.
j. This Agreement is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. In case any one or more of the provisions
contained in this Agreement or any application thereof shall be
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein
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and any other application thereof shall not in any way be affected
or impaired thereby, and the extent of such invalidity or
unenforceability shall not be deemed to destroy the basis of the
bargain among the parties as expressed herein, and the remainder of
this Agreement and the application of such provision to other
Persons or circumstances shall not be affected thereby, but rather
shall be enforced to the greatest extent permitted by law.
k. The section headings appearing in this Agreement are for convenience
of reference only and are not intended, to any extent or for any
purpose, to limit or define the text of any section.
l. This Agreement may be executed in several counterparts and all
counterparts so executed shall constitute one agreement binding on
all the parties hereto, notwithstanding that all the parties are not
signatory to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXX ENTERTAINMENT, INC.
By: /s/ Xxxxxxx Xxxxxxxx, Chairman 6/14/98
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ACCESS RESOURCE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
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