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EXHIBIT 10.15
CORPORATE PROGRAM AGREEMENT
This Corporate Program Agreement (the "Agreement") made this ____, day
of March, 2001, between Transmedia Network Inc., a Delaware corporation, having
its principal place of business at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxx 00000 and Xxxxxxxxx.xxx, Inc., having its principal place of business at
0000 X. Xxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX 00000 (collectively, the "Parties")
in consideration of the representations, warranties, covenants and agreements
set forth in the Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
Definitions, Construction, and Effective Date:
1.1 The terms used in the Agreement have the respective meanings indicated
below:
(a) "iDine" shall mean Transmedia Network Inc., its successors,
assigns, affiliates, and subsidiaries;
(b) "Responsys" shall mean Xxxxxxxxx.xxx, Inc., its successors,
assigns, affiliates, and subsidiaries;
(c) "Corporate Credit Card" shall mean a MasterCard, American
Express, Discover or VISA credit card provided by Responsys for use by its
Employees to settle business expenses;
(d) "Employee" shall mean any employee, or any such person
regardless of formal employment status, associated with Responsys who is
entitled to use the Corporate Credit Card.
(e) "Rewards Program" shall mean iDine's proprietary rewards
program described in detail in Exhibit A attached hereto and made a part hereof;
(f) "Expense Management Program" shall mean iDine's proprietary
corporate expense management program described in detail in Exhibit A attached
hereto and made a part hereof;
(g) "Intellectual Property" shall mean all assumed business names,
trade names, d/b/a names, logos, Internet domain names and other Internet
addresses, trademarks, service marks, trade dress and any and all federal,
state, local and foreign applications, registrations and renewals therefore, and
all the goodwill and going concern value associated therewith; all patents
(including but not limited to all continuations, extensions, and reissues),
patent applications, and inventions and discoveries that may be patentable; all
copyrights subsisting in any marketing materials, Employees data, and data, and
in online works such as Internet web sites, (including the software underlying
such web sites), and any federal or foreign applications, registrations and
renewals therefore; all rights in any and all licensed or proprietary computer
software, firmware, middleware, programs, applications, databases, and files (in
whatever form or medium) including all documentation relating thereto, and all
source and object codes relating thereto; all know-how, trade secrets,
confidential information, competitively sensitive and proprietary information
including but not limited to pricing information, supplier information,
telephone and telefax numbers, and e-mail addresses, technical information,
data, process technology, business
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plans, drawings, and blue prints; and the right to xxx for past infringement, if
any, in connection with any of the foregoing; in each case.
(h) "Marks" shall mean service marks, trademarks, trade names,
service dress, and all other commercially typical designations intended to
distinguish a Party's goods and services from others' goods and services.
1.2 Unless the context of this Agreement otherwise requires:
(a) Words of gender include each other gender;
(b) Words using the singular or plural number also include the
plural or singular, respectively; and
(c) The terms "hereof, "herein", "hereby" and derivative or
similar words refer to this entire Agreement.
1.3 This Agreement shall be effective as of the date first executed by
Responsys and iDine.
Representations and Warranties:
2.1 The Parties represent, warrant, and covenant that on the date of this
Agreement that:
(a) They are duly organized and validly existing and in good
standing under the laws of their respective state of incorporation and that they
have the requisite corporate power and authority to carry on their business as
it is now being conducted;
(b) They are qualified or licensed as a foreign corporation, where
by the nature of their operations qualification or licensure is necessary, in
all jurisdictions where they operate, or intend to operate; and
(c) To the Parties' respective knowledge, the Rewards Program and
the Expense Management Program and all of their attendant warranties, statements
and claims concerning the Rewards Program shall comply in all material respects
with all applicable Federal and State and local laws, rulings, regulations and
ordinances, and that such statements and claims will be truthful; and there are
no actions, suits, claims, proceedings, or governmental investigations or
inquiries pending, or threatened against the Parties seeking to prevent or that,
if successful, would prevent the Parties from complying with the terms of the
Agreement.
The Rewards Program and the Expense Management Program:
3.1 The Rewards Program and the Expense Management Program (together,
sometimes the "Corporate Programs") are defined and described in Exhibit A
attached hereto and made a part hereof.
3.2 iDine may at its sole discretion offer additional or different loyalty
rewards programs other than those described in Exhibit A.
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3.3 The Parties recognize that Employees may already be enrolled or may be
solicited before, during, and after termination of the Agreement to register
individually in other programs that iDine may offer in the ordinary course of
business, and iDine is obligated to continue to service the Employee or process
any acceptable enrollment, provided however, in no event may such Employees be
contacted via means of information contained in the Agreement or provided
hereunder.
Roles and Responsibilities of Responsys:
4.1 For each Employee, Responsys shall use commercially reasonable efforts
to promote frequency of usage of the Rewards Program by all Employees, by means
of, but not by way of limitation, monthly newsletters, web sites, communications
directed to Employees, and other advertising and fulfillment materials approved
by iDine, such approval to not be unreasonably withheld.
4.2 Provide iDine, via mutually agreeable electronic means with appropriate
security, all credit card account numbers, expiration dates, Employees' names,
Email addresses, and whatever other information is reasonably necessary in order
for iDine to enroll Employees in the Corporate Programs by registering
Employees' data in iDine's proprietary system.
4.3 Responsys shall make reasonable efforts to promptly update the same
information in the same fashion as described in Paragraph 4.2 at least every
ninety (90) days whenever Employees are added or deleted from the Corporate
Programs.
Roles and Responsibilities of iDine:
4.4 iDine agrees to administer and provide the services as described
herein, as the same may be amended from time to time, to all Employees of the
Corporate Programs.
4.5 Dine shall provide Responsys with electronic monthly activity reports
concerning current usage by its Employees in the Corporate Programs as well as
updated lists of Rewards Providers and remit payment to Responsys.
4.6 iDine agrees to offer and maintain, at its expense, fax-back and audio
Rewards Providers locator toll-free services with hours of operation convenient
to all time zones in the continental United States of America.
4.7 iDine may provide a link on the Responsys website, and when available
Responsys's intranet, describing the Corporate Programs, provided however, that
nothing in the Agreement shall be construed to require iDine to place on its
website any material it deems, in its sole discretion, to be:
(a) Illegal, false, misleading;
(b) Promoting bigotry, racism, hatred, or harm against any person
or group of people;
(c) Harassing or libelous or otherwise objectionable; and
(d) Involving the electronic transmission of mass distribution
messages, junk mail, or so-called spam.
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Term and Termination:
5.1 The Agreement shall be effective as of the date of execution by the
Parties and shall, unless sooner terminated or extended in accordance with the
succeeding sentence, be in full force and effect through the one year from the
date of this agreement (the "Initial Term"). The Agreement shall renew for
successive one-year periods (a "Renewal Term") if mutually agreed by the Parties
at least thirty (30) days prior to the end of the Initial Term or a Renewal
Term.
5.2 The Agreement may be terminated by either Party prior to the
expiration of the Initial Term or the Renewal Term upon written notice to the
other Party in accordance with the provisions of this Agreement hereof in the
event of a material breach by the other Party of its covenants and obligations
hereunder that is continuing and is not effectively cured within thirty (30)
days notice thereof from the non-breaching Party.
5.3 Either Party may terminate the Agreement for any reason upon sixty
(60)-calendar days written notice to the other Party in accordance with the
notice provisions of the Agreement.
Effect of Termination:
6.1 Upon the expiration of the term or early termination of this Agreement,
Responsys shall immediately return to iDine any and all confidential or
proprietary information and data it received or developed in connection with
this Agreement or the functions to be performed by it hereunder, and iDine shall
immediately return to Responsys any and all confidential or proprietary
information it received in connection with this Agreement.
6.2 Termination of this Agreement shall not relieve the Parties of any
liability which accrued hereunder prior to the effective date of such
termination nor prejudice either Party's right to obtain performance of any
obligation provided for in this Agreement which by its terms and the action
contemplated therein, survives termination or expiration.
6.3 Upon the expiration or termination of this Agreement, either Party
shall, at the other Party's election, destroy or return to the other Party all
Promotion Materials relating to the Corporate Programs then in its possession.
Confidential Information, Intellectual Property, and Trade Secrets:
7.1 iDine is the sole and exclusive owner of iDine's Intellectual Property
and shall own any and all rights in intellectual property developed by iDine for
use in any Corporate Program, or any other programs offering rewards during the
term of this Agreement. Nothing herein shall be interpreted or construed to
grant to Responsys or any other party any rights, license of interest in the
iDine's Intellectual Property. Except as specifically provided herein, no rights
or licenses with respect to iDine's Intellectual Property, other technical
information or other proprietary rights (including licenses or rights in
confidential information, Employee data and information, marketing plans,
surveys, research, Employee information), are granted or deemed granted by iDine
to Responsys hereunder or in connection herewith.
7.2 The Parties agree, during the term of the Agreement, to treat as
confidential and not to disclose to any person (other than to the Parties'
Employees who have a need to know the same for purposes of
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the Party's performing its obligations hereunder) or use the same for its own
benefit or for any purpose other than performing its obligations hereunder, all
confidential or proprietary information, data, plans strategies, projections,
budgets, reports, research, financial information, files, Responsys' employees'
personal information, agreements and other materials and information it
receives, obtains, or learns about the other Party, any Corporate Program, or
any other program, service, or product iDine and/or Responsys develops in
connection with the Agreement [Our preference is to keep this provision as it
relates to developments which must necessarily relate to our programs - is there
another concern?]. Each Party shall notify those of its Employees who perform
services pursuant to this Agreement of this covenant and shall secure their
agreement to abide by its terms.
Pursuant to this Agreement, either Party may be an Owner or a Recipient of
Confidential Information.
The restrictions of this Agreement on use and disclosure of Confidential
Information shall not apply to information that:
(a) Was publicly known at the time of Owner's communication thereof to
Recipient;
(b) Becomes publicly known through no fault of Recipient subsequent to the time
of Owner's communication thereof to Recipient;
(c) Was in Recipient's possession free of any obligation of confidence at the
time of Owner's communication thereof to Recipient;
(d) Is developed by Recipient independently of and without reference to any of
Owner's Confidential Information or other information that Owner disclosed in
confidence to any third party;
(e) Is rightfully obtained by Recipient from third parties authorized to make
such disclosure without restriction; or
(f) Is identified by Owner as no longer proprietary or confidential.
7.3 Each Party agrees that prior to releasing any media or press announcement
with respect to the Agreement or the functions to be performed hereunder, it
shall submit the text to the other Party for review and approval (which approval
shall not be unreasonably withheld).
7.4 iDine shall have the right of prior approval of promotional materials to be
used by Responsys which contain iDine's Marks or the endorsement of iDine.
7.5 iDine hereby grants Responsys a limited, non-exclusive, non-assignable
license to use any iDine Marks solely in conjunction with the Corporate
Programs, including the promotion thereof. This license shall remain in effect
for the duration of the Agreement and shall apply to the iDine Marks by
operation of law or otherwise to any permitted successor, corporation,
organization, or individual.
7.6 Responsys hereby grants iDine a limited, non-exclusive, non-assignable
license to use any Xxxxxxxxx Xxxxx solely in conjunction with the Corporate
Programs, including the promotion thereof. This license shall remain in effect
for the duration of this Agreement and shall apply to the Xxxxxxxxx Xxxxx by
operation of law or otherwise to any permitted successor, corporation,
organization, or individual.
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Indemnification:
8.1 The Parties shall indemnify, defend, and hold harmless each other from and
against any and all liability, loss, damage, cost, tax, penalty, fine, and
expense (including, without limitation, reasonable attorneys' fees) which a
Party may incur, suffer or be required to pay resulting from or arising from a
third party claim in connection with (i) the breach by the other Party of any
covenant, representation, or warranty contained in the Agreement, or (ii) any
negligent or wrongful act or omission of the other Party (including, without
limitation, fraud) in the performance of its obligations hereunder.
8.2 Except for the indemnification obligations set forth above, neither Party
shall be liable to the other Party for any indirect, special, incidental,
punitive, or exemplary damages of any kind, including without limitation, lost
revenues, loss of profits, or loss of business, arising from this Agreement or
relating to the obligations hereunder.
8.3 iDine will defend and settle at its own expense, and will indemnify
Responsys for any damages or expenses including reasonable attorneys' fees
resulting from, any action brought against Responsys to the extent that it is
based on the Corporate Programs infringement of any patent or any copyright or
trade secret of a third party in any jurisdiction in which Responsys is licensed
to use the Corporate Programs, provided that: (i) iDine is promptly notified in
writing of the claim; (ii) iDine has sole control of the defense and any
negotiations for the settlement of such claim; and (iii) Responsys provides
iDine, at iDine's expense, with all reasonable assistance, information, and
authority necessary to perform the above. Should the Corporate Programs become
the subject of any such claim of infringement, then Responsys will permit iDine,
at iDine's option and expense, either: (i) to procure for Responsys the right to
continue using the Corporate Programs; (ii) replace or modify the Corporate
Programs so that the use thereof becomes non-infringing; or (iii) refund any
fees for Corporate Services paid in advance by Responsys that are unused as of
the date of notice provided by Responsys in accordance with this Section 8.3.
Other Provisions:
9.1 The Agreement shall be deemed to have been made in the State of Florida and
its form, execution, validity, construction, and effect shall be determined in
accordance with the laws of the State of Florida, without giving effect to the
principles of conflicts of law thereof.
9.2 Notwithstanding the provisions of paragraph 9.4 below, the Parties
acknowledge that damages at law may be an inadequate remedy for the breach of
any of the covenants and obligations of the Parties contained in the Agreement,
accordingly, each Party shall be entitled, without the need of establishing
actual damages, to such injunctive relief as may be necessary to prevent, or to
enjoin the continuation of, any such breach.
9.3 The Parties shall provide each other's authorized employees, auditors, and
attorneys with access at reasonable times during regular business hours and upon
reasonable prior notice, and subject to the confidentiality undertakings
contained in the Agreement, to such Party's books and records relating to the
Corporate Program for purposes of reviewing the calculations thereof; provided,
however, any audits performed hereunder will be at the expense of the Party
requesting the audit.
9.4 Any dispute, claim or controversy between the parties arising under this
Agreement shall be resolved as follows: (i) within 10 days of receipt of notice
from either Party, senior management of the
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Parties shall confer and shall use good faith efforts to resolve the dispute;
(ii) if the dispute is not resolved within 30 days of such notice, such dispute
shall be resolved by binding arbitration in New York, New York under the
then-current rules of the American Arbitration Association. The decision and
award of the arbitrator shall be final, binding and non-appealable and may be
enforced in any court having jurisdiction thereof.
9.5 If any of the terms or provisions of the Agreement are in conflict with any
applicable statute or rule of law in any jurisdiction, then such term or
provision shall be deemed inoperative in such jurisdiction to the extent of such
conflict and the parties will renegotiate the affected terms and conditions of
the Agreement to resolve any inequities.
9.6 Any notice required or permitted to be given under the Agreement shall be
delivered in person or sent by courier service, charges pre-paid, or by
facsimile transmission, to the address or facsimile number specified below:
If to iDine: Transmedia Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn.: Xxxxx X. Xxxxx, Vice President
and Corporate Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000)000-0000
Fax: (000)000-0000
If to Responsys: Responsys Inc.
0000 X. Xxx Xxxxx Xx.
Xxxx Xxxx, XX 00000
Attn:
Telephone:
Fax:
or to such other address or facsimile number as the person may specify in a
notice duly given to the sender as provided herein. A notice will be deemed to
have been given when received.
9.7 Except as provided in the following sentence, this Agreement and the rights
and obligations of the Parties hereto and their respective interests hereunder
shall not be assignable or delegable (other than by operation of law) without
the prior written consent of the other Party, except that iDine may assign any
or all of its rights and interests and delegate any or all of its obligations
under the Agreement to any one or more of its Affiliates without the prior
written consent of Responsys, in which event the relevant rights and obligations
of iDine and remedies available to it hereunder shall extend to and be
enforceable
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by such Affiliate. In addition, this Agreement may be assigned by either Party
without consent in the event of that Party's merger or acquisition of all or
substantially all of that Party's assets.
9.8 All Article headings contained in the Agreement are for convenience of
reference only and shall not affect the meaning or interpretation of this
Agreement. Unless the context requires otherwise, all references in the
Agreement to any article or section shall be deemed and construed as references
to an article or section of the Agreement.
9.9 It is understood and agreed that each Party shall have the status of an
independent contractor under the Agreement and that nothing in the Agreement
shall be construed as authorization for either Party to act as agent for the
other. The relationship between the Parties as set forth herein shall not be
construed as a partnership or joint venture and neither Party shall have
fiduciary duties to the other.
9.10 The Agreement is deemed to have been jointly drafted into by the Parties,
and any uncertainty or ambiguity shall not be construed for or against either
Party as an attribution by either Party.
9.11 The Agreement may not be amended or modified, nor may compliance with any
condition or covenant set forth herein be waived, except by a writing duly and
validly executed by the Parties. No delay on the part of any Party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any Party of any such right, power or privilege,
or any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege.
9.12 The Agreement, together with Exhibit A hereto, constitutes the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes and cancels any and all prior or contemporaneous arrangements,
understandings and agreements between them relating to the subject matter
hereof.
9.13 In the event that any provision or any portion of any provision of the
Agreement shall be held to be void or unenforceable, then the remaining
provisions of the Agreement (and the remaining portion of any provision held to
be void or unenforceable in part only) shall continue in full force and effect.
9.14 The Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which shall constitute the same
instrument.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties, through their authorized officers, have duly
executed this Agreement intending it to be effective and binding as of the date
first written above.
Transmedia Network Inc. Xxxxxxxxx.xxx, Inc.
By: __________________________________ By: _____________________________
Name: Xxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxx
Title: President and Title: Director, Business Ops
Chief Executive Officer
Date: 9 Mar 01 Date: 3/14/01
Exhibit A to Corporate Program Agreement
A.1.1 Definitions:
(a) "Dine" shall mean a distinct dining event at a restaurant, the expense
of which may reflect charges for some or all of the following: Food, beverage,
tax and gratuity.
(b) "Participating Restaurant" shall mean a restaurant contractually
obligated to iDine to provide rewards dining.
(c) All other terms shall have the same definitions as set forth in the
Corporate Program Agreement in Paragraph 1.1 (a) through (h).
A.2.1. The Rewards Program:
iDine maintains a network of Participating Restaurants, which offer
discounts (sometimes, the "benefit") on dining (food, beverage, tax and tip) to
certain people, enrolled by iDine in certain programs.
(a) Employee Rewards.
(i) There are three restaurant networks with distinct benefits for
Employees:
(A) The Restricted Restaurant Network. Provides a 20% discount for all
first time Dines in any one calendar month with a maximum discount of $120.00
per that first Dine in a calendar month (if the price of the Dine exceeds
$600.00, there is no additional benefit beyond the maximum of $120.00). All
subsequent Dines in the same calendar month at that Restricted Restaurant do not
receive a benefit.
(B) The Unrestricted Restaurant Network. Provides a 20% discount for an
unlimited number of Dines in a calendar month provided:
(I) The total cumulative expense of Dines at the Unrestricted
Participating Restaurant does not exceed $600.00 per any one calendar month; and
(II) In the event the cumulative expense of Dines at the
Unrestricted Participating Restaurant exceeds $600.00 per any one calendar
month, then the benefit will not exceed $120.00 for that month.
(C) The Yield Management Network. Provides a dynamic, variable incentive
to Employees at a number of restaurants ("Yield Management Participating
Restaurants") which may be accessed by Employees on specific days of the week or
times of day, or both (the "Incentive Period").
(ii) A Dine in a Participating Restaurant by an Employee that does not
exceed the limits for a Restricted Participating Restaurant or the limits for a
Unrestricted Participating Restaurant or which occurs during the Incentive
Period for a Yield Management Restaurant, paid through means of the Responsys
Corporate Credit Card, is a Qualified Dine. Provided, however, in no event will
the concurrent use of discounts, coupons, or the like by an Employee at a
Participating Restaurant for a Dine qualify as Qualified Dine or count towards
the Usage Level described in Section A.3.1 (a) below.
A.3.1 The Expense Management Program:
The Expense Management Program provides that:
Once a Employee accumulates Qualified Dines generating $50.00 total in
discounts in any one calendar year starting from the date of this Agreement and
subsequently on the anniversary of the Agreement (the "Usage Level"), then
Responsys shall receive a sum equaling subsequent earned benefits beyond the
Usage Level described in the Rewards Program, such sum will be remitted to
Responsys by means of monthly check, payable in arrears on the fifteenth of each
month.
A.4.1 Other Information:
The Parties acknowledge that from time to time the list of Participating
Restaurants changes.
The Parties acknowledge that iDine may at its sole discretion offer
additional loyalty rewards programs which may be different from the Dining
Program which may also be included in the Expense Management Program.
Transmedia Network Inc.
/s/ Xxxx X. Xxxxxxxxx Date: Mar 9, 2001
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Xxxxxxxxx.xxx
Illegible Date: 3/14, 2001
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