EXHIBIT 10.6
TELESERVICES AGREEMENT
THIS AGREEMENT, ("Agreement"), is made this 1st day of February, 2001, by
---------
and between e-commerce support centers, inc., a North Carolina corporation
("Vendor"), and Gibralter Publishing, Inc., a North Carolina corporation
------
("Customer").
--------
RECITALS
1. Vendor is in the business of, among other things, providing various
services including, but not limited to, outbound telemarketing and inbound
customer services to customers.
2. Customer wishes to use Vendor's services.
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein the parties agree to the following:
1. SERVICES
Vendor's methodology for the program will be as follows:
A. Outbound sales of publishing related products.
B. Inbound membership services.
C. Back office support to include Oracle Database and Financials and
credit card processing, Siebel systems front end and hosting of Customer
propriety database and publishing software.
D. Scripting provided by Vendor and approved by Customer.
E. Training provided by Vendor.
F. Vendor will provide Customer with reports to be mutually agreed upon.
G. All toll-free telephone numbers used by Vendor to provide service will
be the property of Customer.
2. PRICING FOR PROGRAM
Training/lead generation $14 per hour
Outbound Sales $22 per hour
Inbound Membership Services $22 per hour
Administration Personnel To be provided at Cost
Back Office $15k per week
Term 36 months
3. PAYMENT
Payment will be made bi-monthly via bank wire or transfer. Vendor will
charge a fee for late payment at the lesser of one and one-half percent (1.5%)
per month, or the highest rate permitted by law. Failure to remit payment on a
timely basis shall constitute a default.
Vendor may assign unpaid delinquent charges to a collection agency for
action. In the event Vendor resorts to legal action to recover monies due,
Customer agrees to reimburse Vendor for all expenses incurred to recover such
monies (including attorney's fees). Failure to remit payment on a timely basis
shall constitute a breach and default under this Agreement. Customer authorizes
Vendor to conduct a credit search, which Vendor will use to determine the credit
worthiness of Customer. Vendor may terminate this Agreement if, in the sole
opinion of Vendor, the results of such search are deemed unacceptable.
4. TERM AND TERMINATION
A. The term of this Agreement shall begin on the date the contract is
initiated by Customer and continue for a minimum duration of thirty six (36)
months. This Agreement shall thereafter continue on a month-to-month basis until
terminated by either party upon thirty (30) days written notice to the other.
All obligations of the parties under this Agreement which, by their nature,
would continue beyond the termination, cancellation or expiration of this
Agreement shall survive such termination, cancellation or expiration.
B. Vendor reserves the right to terminate its Services to Customer in the
event that Vendor ceases to offer telemarketing services to third parties upon
not less than thirty (30) days advance notice to Customer. Vendor undertakes to
continue to offer the Services provided in this Agreement for at least six (6)
months from the effective date of this Agreement.
C. Vendor randomly monitors inbound and outbound telephone calls of all
representatives. In the event Customer holds issue to the quality of the
services, or Vendor does not meet performance metrics identified in Program
Description upon notice and full description from Customer, Vendor will have
thirty (30) days to cure. In the event that Vendor does not cure the situation
with thirty (30) days Customer has the right to terminate this Agreement with
forty five (45) days written notice.
5. INDEMNIFICATION
A. Customer shall at all times defend, indemnify and hold harmless
Vendor, its affiliates, distributors and all officers, directors, shareholders,
successors and assignees of each of the foregoing from and against, and pay and
reimburse Vendor for, any and all liabilities, losses, damages, out-of-pocket
cost or expenses (including interest, penalties and reasonable attorneys fees
and expense incurred in the investigation or defense of any of the same or in
asserting their respective right hereunder) arising out of or relating to (1)
professional services provided by Vendor to Customer; (2) any alleged act or
omission of Vendor, its employees, subcontractors or agents in the performance
of the activities contemplated hereby; (3) any failure by Customer to abide by
2
any of the covenants set forth herein; and (4) from all costs, liabilities,
damages and attorneys' fees resulting from Vendor's performance of its
obligations under this Agreement.
B. Notwithstanding this provision, Customer shall not be liable to Vendor
for any costs, liabilities, damages and attorneys fees arising from the willful
and/or intentional acts of Vendor's employees, agents, and/or representatives.
6. ASSIGNMENT
Neither party may, without the prior written consent of the other party,
assign or transfer this Agreement or any obligation incurred hereunder, except
that Vendor upon written notice to Customer may assign this Agreement to any
affiliated entity, or to a successor entity upon the merger, reorganization,
consolidation, or sale of all or substantially all of Vendor's assets. Any
attempt to assign this Agreement in contravention of this Section shall be void
and of no force and effect.
7. CONTINGENCIES
Vendor will not be liable for delays, damages or failures in performance
due to causes beyond its reasonable control, including, but not limited to:
embargoes, wars, the elements, labor disputes, government requirements, acts of
a governmental body, acts of God, acts of third parties, fires, floods, labor
strikes or related disputes, or an inability to obtain necessary Equipment or
Services, inability to secure raw materials or transportation facilities, acts
or omissions of carriers or suppliers or other causes beyond its control whether
or not similar to the foregoing; provided, however, that performance of each
party's obligations hereunder shall not be excused by reason of an act of a
government authority in the exercise of its enforcement powers against a party
for the alleged violation of any law, rule or regulation. Any event that
prevents Vendor from performing its obligations hereunder and that is beyond its
reasonable control, and without the fault or negligence of Vendor, shall
constitute an excusable delay.
8. USE OF INFORMATION
This Agreement and all technical and business information, including
customer lists, customer data and all other customer information, in whatever
form recorded or furnished to Customer under or in contemplation of this
Agreement and identified as proprietary by Vendor shall remain the property of
Vendor. Unless Vendor otherwise agrees in writing, such information: (1) shall
be treated in confidence by Customer and used by Customer only for the purposes
of performing the obligations under this Agreement; (2) shall not be reproduced
or copied in whole or in part, except as necessary for use as authorized in this
Agreement; (3) shall be made available only to such employees of Customer who
have a need to have access to such information and have been obligated to comply
with the terms of this Article; and (4) shall, together with any copies thereof,
be returned, be destroyed, or, if in the form of software recorded on an
erasable storage medium, be erased when no longer needed or this Agreement
terminates, whichever occurs first. The above conditions do not apply to any
part of the information that is known to Customer free of any obligation to keep
3
in confidence. Customer agrees to adhere to the requirements of this Article for
two (2) years following the termination or expiration of this Agreement.
Notwithstanding any provision of the preceding paragraph to the contrary,
all data and information provided by Customer, or which Vendor was paid to
produce specifically for Customer, or which is otherwise acquired by Vendor on
Customer's behalf (collectively, "Customer Data"), shall at all times be owned
exclusively by Customer. Vendor shall treat Customer Data in confidence
consistent with the provisions regarding the treatment of Vendor confidential
information in the preceding paragraph, and shall use such Customer Data only in
order to carry out its rights and obligations hereunder. Vendor shall return all
Customer Data to Customer at the termination or expiration of this Agreement.
9. APPLICABLE LAW
The construction, interpretation and performance of this Agreement is a
contract under the laws of the State of North Carolina, U.S.A., excluding its
choice of law provisions, which shall be the exclusive place of jurisdiction and
venue. Litigation concerning this Agreement may be commenced in either the North
Carolina State Courts or the U.S. Federal Courts located in North Carolina. In
the event of litigation between the parties over this Agreement or any of its
terms, the prevailing party shall be entitled to recover its attorneys' fees and
costs from the non-prevailing party in addition to any and all other remedies to
which it may be entitled.
10. NOTICES
Any notices or demands or other communications which under the terms of
this Agreement or under any statute must or may be given or made by Customer or
Vendor shall be in writing and to the respective parties as set forth herein.
Notices to Vendor shall be addressed to:
e-commerce support centers, inc.
0000X Xxx Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Legal Department, General Counsel
Telecopier: 509.692.6949
Notices to Customer shall be addressed to:
Gibralter Publishing, Inc.
0000X Xxx Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Legal Department, General Counsel
Telecopier: 509.692.6949
Either party may change the notice address or addressee by giving notice
thereof to the other party. Notices may be given by first class U.S. mail
(postage pre-paid, registered and with return receipt requested), nationally
recognized express courier, confirmed facsimile, or personally. Notices shall be
4
deemed to have been given on the date of delivery when delivered personally or
by facsimile, on receipt if delivered by express courier or by hand, and three
(3) days after delivery to the United States Postal Service if mailed.
11. NON-WAIVER
Vendor's failure at any time to enforce any of the provisions of this
Agreement or any right or remedy available hereunder or at law or equity, or to
exercise any option herein provided shall in no way be construed to be a waiver
of such provisions, rights, remedies of options or in any way to affect the
validity of this Agreement. The exercise by Vendor of any rights, remedies or
options provided hereunder or at law or equity shall not preclude or prejudice
Vendor from exercising thereafter of the same or any other rights, remedies or
options.
12. COMPLIANCE WITH LEGAL REQUIREMENTS
Both parties shall comply with all applicable federal, state, and local
laws and executive orders and regulations issued pursuant thereto. Both parties
warrant and represent that they are empowered to enter into this Agreement and
that the signatories hereto can bind the parties to this Agreement.
13. CONSEQUENTIAL DAMAGES
Neither party shall be entitled to indirect, incidental or consequential
damages including, without limitation, lost profits, based on any breach or
default of this Agreement by the other party, regardless of the foreseeability
of such damages and/or the knowledge of the other party.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts and all such
counterparts shall be treated as the same binding agreement. In any litigation
between the parties, a photocopy of this Agreement shall be accepted into
evidence.
15. INDEPENDENT CONTRACTORS
The relationship of the parties under this Agreement shall be, and shall at
all times remain, one of independent contractors and not that of employer and
employee, franchiser and franchisee or joint venture. This Agreement does not
establish or constitute Customer as Vendor's agent for any purposes whatsoever.
Nothing contained in this Agreement shall be deemed to create or construed as
creating a joint venture or partnership between the parties. Each party is an
independent contractor and may not create any obligation on the other party,
express or implied.
16. CONFIDENTIALITY
The parties shall keep the provisions of this Agreement and any order
issued hereunder confidential, except as reasonably necessary for the
performance thereunder and except to the extent that applicable laws or
regulations may require disclosure. In the latter case, the party required to
5
make such disclosure shall promptly inform the other party prior to making such
disclosure in sufficient time to enable that party to make known any objections
it may have to such disclosure.
17. RELEASES VOID
Neither party shall require releases or waivers of any personal rights from
representatives of the other in connection with visits to its premises and both
parties agree that no such releases or waivers shall be pleaded by them in any
action or proceeding.
18. HEADINGS
All headings contained in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this Agreement
or any clause.
19. SEVERABILITY
If any of the terms or conditions in this Agreement are properly found to
be invalid or unenforceable by a government body, the remaining terms or
conditions of this Agreement shall not be affected by the finding and shall
continue to apply.
20. ENTIRE AGREEMENT
This Agreement is the entire agreement between Customer and Vendor on the
subject matter, and it supersedes all prior oral or written representations,
express or implied, understandings or agreements, without limitation, any
marketing or promotional material that may be supplied by Vendor. This shall
constitute the entire agreement between the parties concerning the subject
matter of this Agreement and shall not be contradicted, explained or
supplemented by any course of dealing between them or their affiliates. In the
event of a conflict between this Agreement and the Attachments, this Agreement
shall prevail. This Agreement may not be changed or waived except as permitted
by this Agreement or by a written document that is signed by both parties.
21. SURVIVAL OF OBLIGATIONS
This section and the sections referenced herein and the sections entitled
INDEMNIFICATION, USE OF INFORMATION, TERM AND TERMINATION, NOTICES,
SEVERABILITY, APPLICABLE LAW, CONFIDENTIALITY, and CONSEQUENTIAL DAMAGES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above set forth, to be effective as of February 1,
2001.
E-COMMERCE SUPPORT CENTERS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxxx, President
GIBRALTER PUBLISHING, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxxx, President
7
