Co-Marketing Agreement
This Co-Marketing Agreement ("Agreement") is entered into as of the
April, 1998 between Dynamic Imaging Group Inc., a Colorado Corporation, with its
principal place of business at 0000 Xxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000 ("Company") and Speedy Sign*A*Rama USA Inc., a Florida Corporation with
its principal place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx 000 Xxxx, Xxxx
Xxxx Xxxxx, Xxxxxxx 00000, ("Franchisor").
General Information
The Company and the Franchisor desire to work cooperatively to realize
the opportunities that exist in the Territory (defined below) for the Products
(defined below); and,
the Company and the Franchisor desire to co-market the Products to the
Franchisor's Franchisees within the defined Territory.
In consideration for the mutual promises, covenants, and Agreements
made below, the parties, intending to be legally bound, agree as follows:
1. Definitions
For purposes of this Agreement, the following terms will have the
indicated definitions:
"Agreement." This Agreement is by and between the Company and the
Franchisor.
"Products." Includes only those products listed on Exhibit A. The
Company may, at its option, modify the products listed on Exhibit A from time to
time by providing written notice to the Franchisor not less than thirty (30)
days prior to any such change.
"Territory." The geographical territory covered by this Agreement is
Worldwide.
"Term." The duration of this Agreement as provided in Section 2.
"Information." Any documentation, customer information or other
information disclosed by the party to the other that the disclosing party
considers proprietary. Such information may include, but is not limited to,
engineering, hardware, software, or other information that is not generally
known relating to the Products, and other information concerning financial,
accounting or marketing reports, analysis, forecasts, predictions or projections
relating to the Products and/or to the business of either the Company or the
Franchisor.
2. Term and Termination
2.1 Term. The initial term of this Agreement shall be for one (1) year
commencing on the date first set forth above. Thereafter, renewal of the term of
this Agreement will be automatic unless written notice of the termination is
received by either party at least thirty (30) days prior to expiration. This
Agreement shall continue in effect as set forth herein unless otherwise modified
or terminated.
2.2 Termination. Either party may terminate this Agreement with or without cause
upon thirty (30) days prior written notice without liability of any kind to the
other party.
3. Co-Marketing Agreement
3.1 Joint Cooperation. The Company and the Franchisor shall cooperate in the
areas of marketing, promotion, training and sales as follows:
3.2 Marketing. The Company and the Franchisor shall work cooperatively within
the Territory to assess viable market segments, applications, and potential
customers for trade show booth (display systems) needs, including planning to
meet future market needs. Franchisor will work with the Company to encourage
each of its Franchisees within the Sign*A*Rama Network to lease, sell and to
distribute the display systems. The Company hereby acknowledges that Franchisor
does not have the contractual right nor will it require any of its Franchisees
to lease, sell or to distribute the display systems.
3.3 Exclusivity. The Company's display systems shall be exclusively marketed
through and by Franchisor's Franchisees to the retail sign industry and with no
minimum requirements placed thereon. Franchisor shall exclusively co-market the
Products to Franchisor's Franchisees during the term of this Agreement and shall
not co-market with any other company the identical Products considered herein.
3.4 Promotion. The Company and the Franchisor shall plan and undertake joint
seminars, open houses, public relations events, press releases, testimonials,
demonstrations, and joint participation in trade shows, conventions and
conferences, when appropriate. The content of all promotional
materials/activities shall be subject to the advance written approval of both
parties. The Company will provide cobranded promotional marketing materials,
cobranded advertising in printed media as specified by Franchisor and institute
an active ongoing telemarketing effort to Franchisor's Franchisees and potential
customers. Cobranded is defined as baring the name and logo or trademark of
Franchisor and The Company. The Company shall solely bare the costs of all
marketing efforts contemplated in this Agreement. The Company shall dedicate
eight percent (8%) of all gross revenue received as a result of the activities
contemplated herein to an advertising fund for which these moneys will be used
to fund a National Advertising Campaign (National Advertising Campaign as used
herein shall refer exclusively to
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marketing to Sign*A*Rama Franchisees), the details for which shall be agreed to
by both parties prior to implementation. Of the National Advertising Campaign
fund, an amount to be later determined and agreed to at a later date shall be
used in a telemarketing effort for which there shall be dedicated employees. The
methods and operation of the telemarketing campaign as well as the National
Advertising Campaign shall be mutually agreed to in writing in advance of
implementation and the Company shall give to Franchisor a full accounting
quarterly of all revenues earned, moneys deposited in the National Advertising
Campaign fund and Moneys expended in the advertising effort as described herein.
The Company shall further provide and audited accounting annually within three
months of the end of the Company's fiscal year.
3.5 Training. As part of the sales and marketing effort established in this
Agreement, both the Company and the Franchisor shall provide training and
information to each party's assigned work force as well as to Franchisor's
Franchisees, to provide an understanding of its services/products, applications,
organization, and procedures that are relevant. The Management of each party
shall each have the sole discretion to determine the numbers, levels and skills
of its personnel assigned to the Co-Marketing program described in this
Agreement, and the types of support resources it shall make available. Expenses
for this program will be borne by the party incurring the expense unless
otherwise agreed.
3.6 Referrals and Presentations. The Company and the Franchisor shall engage in
the exchange of customer leads, joint demonstrations and joint customer visits,
presentations, and proposals, when appropriate.
4. Company responsibilities
4.1 Products. The Company shall sell or lease the Products to the Franchisor's
Franchisees pursuant to orders placed with the Company pursuant to the
Co-Marketing efforts of the parties under this Agreement in accordance with the
Company's standard documentation applicable to such a transaction, or any
special contracts agreed to by both parties in advance and in accordance with
the additional terms contemplated in. Exhibit B to this Co-Marketing Agreement
and attached hereto;
4.2 Information. The Company shall provide reasonable information and backup as
agreed to by the Company and the Franchisor in support of the customer
proposals, trials, pilot programs inquiries and service requests;
4.3 Maintain Products. The Company shall provide maintenance for Products sold
or leased as a result of the Franchisor's activities under this Agreement at the
Company's standard prices, if requested by the Franchisor;
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4.4 Demo Equipment. The Company shall provide the Products on a purchase or
lease basis to be used in customer demonstrations and pilot programs as part of
the marketing/sales process;
4.5 Training. The Company shall provide reasonable technical training on the
Products to the Franchisor's employees working with the Company at the Company's
facility at mutually agreed upon times;
4.6 Collateral Materials. The Company shall provide sample quantities of
collateral materials as identified and agreed to by the Company and the
Franchisor in writing, in advance in support of the sales/marketing process;
4.7 Additional Collateral Materials. The Company shall provide additional
quantities of collateral materials to the Franchisor and to Franchisor's
Franchisees, in excess of quantities agreed to by the parties in advance, at
cost, as reasonably requested.
5. Franchisor's Responsibilities
5.1 Support Obligation. The Franchisor shall train, deploy and otherwise
maintain a technical and marketing support group for display systems products
and services covered under this Agreement as appropriate to respond to the
Franchisor's Franchisee's requirements.
5.2 Market Services. The Franchisor shall market to its Franchisees:
(See Exhibit A)
to meet the Franchisor's Franchisees' requirements.
6. Non-Disclosure of Proprietary Information
6.1 Proprietary. Each party to this Agreement may find it beneficial to disclose
to the other party certain information. The parties understand and agree that
information disclosed pursuant to this Agreement shall be considered proprietary
because (1) it has been developed internally by the disclosing party, or (2) it
has been received by the disclosing party subject to a continuing obligation to
a third party to maintain the confidentiality of the information. Information
disclosed pursuant to this Agreement that either party considers proprietary and
that is provided in tangible form shall be marked confidential, proprietary or
private. If such information is orally disclosed, it shall be identified by the
disclosing party as being proprietary to that party in a writing sent to the
receiving party no more than five (5) days after disclosure.
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6.2 Confidentiality. With respect to such information, the party to whom the
information is disclosed and its employees, consultants and other agents shall:
(1) hold the information in confidence and protect it in accordance with the
security measures with which it protects its own proprietary or confidential
information, which it does not wish to disclose; (2) restrict disclosure of the
information solely to those employees, consultants and other agents with a need
to know, and not disclose such information to any other persons; (3) advise its
employees, consultants and other agents with access to the information of their
obligations with respect to the information; and (4) use the information only in
connection with the terms of this Agreement, except as may otherwise be agreed
to by the parties in writing.
6.3 Non-Proprietary Information. The party to whom information is disclosed
shall have no obligation to treat as proprietary any information that (1) was
previously known to the receiving party free of any confidentiality obligation;
(2) is disclosed to third parties by the disclosing party without restriction;
(3) is or becomes publicly available other than by the receiving party's breach
of its obligations; or (4) is independently developed by the receiving party.
6.4 Disclosure of Information. In the event a party to whom information has been
disclosed proposes to disclose that information to an outside consultant or
agent, it shall obtain the consent of the party from whom the information was
originally received and arrange for the execution by the consultant or agent of
a nondisclosure Agreement which has been approved by the party from whom the
information was originally received. Such approval shall not be unreasonably
withheld.
6.5 Return of Information. The information shall be deemed the property of the
disclosing party and, upon request, the other party will return all information
that is in tangible form to the disclosing party or destroy all such
information.
6.6 Disclosure to Affiliates. Except as specifically provided in this Agreement,
the parties agree not to provide information to any of their affiliated
companies, without the prior written consent of the party disclosing the
information.
7. General Provisions
7.1 Severability. If any provision of this Agreement is found invalid or
unenforceable under judicial decree or decision, the remainder shall remain
valid and enforceable according to its terms. Without limiting the previous, it
is expressly understood and agreed that each and every provision of this
Agreement that provides for a limitation of liability, disclaimer of warranties,
or exclusion of damages is intended by the parties to be severable and
independent of any other provision and to be enforced as such. Further, it is
expressly understood and agreed that if any remedy under this Agreement is
determined to have failed of its essential purpose, all other limitations of
liability and exclusion of damages set forth in this section shall remain in
full force and effect.
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7.2 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing and shall be delivered or mailed certified return
receipt requested to the respective parties at the addresses set forth above or
at such other address as such party shall specify to the other party in writing.
Any notice required or permitted to be given by the provisions of this Agreement
shall be conclusively deemed to have been received on the day it is delivered to
that party by U.S. Mail with Acknowledgment of Receipt or by any commercial
courier providing equivalent acknowledgment of receipt.
7.3 Trademarks and Trade Names. Neither party shall use the name of the other
party in any news release, public announcement, advertisement or other form of
publicity without the prior written consent of the other party. The Company is
hereby granted permission to use the Franchisor's name in the Company's
promotional materials for the sole purpose of identifying the Franchisor as a
customer of the Company, with prior written approval. The Franchisor is hereby
granted permission to use during the term of this Agreement the trademarks and
trade names used by the Company in connection with the Products and services
covered by this Agreement. Such permission is expressly limited to uses by the
Franchisor necessary to the performance of the Franchisor's obligations under
this Agreement. The Franchisor hereby acknowledges the Company's exclusive
ownership of such marks and names and that the Company's marks and names are
renowned both worldwide and specifically in the Territory. The Franchisor agrees
not to take any action inconsistent with such ownership and further agrees to
take any action, including without limitation the conduct of legal proceedings
at the Company's expense, which the Company reasonably deems necessary to
establish and preserve the Company's exclusive rights in and to its trademarks
and trade names. Reproductions of the Company's trademarks, logos, symbols,
etc., shall be true photographic reproductions.
7.4 Labels. The Franchisor will not remove, make or permit any alterations in
any labels or other identifying markings placed by the Company on any of its
Products covered by this Agreement.
7.5 Waiver, Amendment, Modification. No waiver, amendment or modification,
including those by custom, usage of trade, or course of dealing, of any
provision of this Agreement will be effective unless in writing and signed by
the party against whom such waiver, amendment or modification is sought to be
enforced. No waiver by any party of any default in performance by the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement shall constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent breach of any terms or conditions of that Agreement. Performance of
any obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver shall be effective only with respect to the specific obligation described
in that waiver.
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7.6 No Warranties. The Franchisor hereby acknowledges that it has not entered
into this Agreement in reliance upon any warranty or representation by any
person or entity.
7.7 Entire Agreement. The parties acknowledge that this Agreement expresses
their entire understanding and Agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except expressly set forth in this section. The parties further
acknowledge that this Agreement supersedes, terminates and otherwise renders
null and void any and all prior Agreements or contracts, whether written or
oral, entered into between the Company and the Franchisor with respect to the
matters expressly set forth in this Agreement.
7.8 Attorney Fees. If either party is required to retain the services of any
attorney to enforce or otherwise litigate or defend any matter or claim arising
out of or in connection with this Agreement, then the prevailing party shall be
entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorney fees)
incurred in the proceeding.
7.9 No joint Venture. This Agreement is not intended to create, nor shall it be
construed as, a joint venture, association, partnership, franchise or other form
of business or relationship. Neither party shall have nor hold itself out as
having any right or power or authority to assume, create, or incur any expense,
liability or obligation, expressed or implied, on behalf of the other party,
except as expressly provided herein.
7.10 Governing Law. This Agreement shall be governed by the laws of the State of
Florida.
7.11 Limitation of Liability. Neither the Company nor the Franchisor shall be
liable to each other or any third party claiming under them for incidental,
special, consequential, or other damages, including but not limited to lost
profits arising from an alleged breach or actual breach of this Agreement.
We have carefully reviewed this contract and agree to and accept its
terms and conditions. We are executing this Agreement as of the day and year
first written above.
Company Franchisor
By: By:
----------------------------- ----------------------------------
Name: Name:
----------------------------- ---------------------------------
Title: Title:
----------------------------- --------------------------------
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Exhibit A
DESCRIPTION OF THE PRODUCTS
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9 foot Curve Arise Units with Podiums
8 Panel Outline Units
6 foot Curve Table Top Units
Lights 10 foot by 10 foot Floor kits with Case
Arise 12 Section Arches
Sails
Arise Panel Set - 3 panels, 2 End-caps
Outline Panel Set, 8 Panels, 4 Headers
Adjustable Brochure Racks
Arise Shelves (Straight)
Arise Shelves (Curved)
Standards
Brackets
Outline Shelves
Outline Standards
Outline Brackets
Table with Front Panel
Arise Table
Chairs
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Exhibit B
ADDITIONAL TERMS CONTEMPLATED BETWEEN COMPANY AND FRANCHISOR'S FRANCHISEES
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Summary:
o Dynamic Imaging Group, Inc. will supply Sign*A*Rama franchisees with trade
show booths, digital imaging (Graphics) and all products that are currently
in inventory and others that may be added in future. These products will be
rented and/or sold by Sign*A*Rama franchisees to their customers.
o Dynamic Imaging Group, Inc. will provide Sign*A*Rama franchisees with
marketing materials and instructional manuals free of charge upon the
franchisee's purchase or lease of a display unit.
o Dynamic Imaging Group, Inc. will provide all products as listed in Exhibit
"A" attached hereto to franchisee on a discounted or wholesale basis.
o Participating Sign*A*Rama franchisees will act as sales or rental agents
for all products inventoried by Dynamic Imaging Group, Inc.
o Sign*A*Rama franchisees will receive 25% off the gross receipt of all
rentals and sales of all products in Dynamic Imaging Group, Inc. inventory.
o Dynamic Imaging Group, Inc. has agreed to sell a sample package of display
systems at an additional discount for the "tour stores" as designated
periodically by Sign*A*Rama corporate.
o Sign*A*Rama franchisees will receive 25% off the gross on all insurance
purchased at the time of rental.
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