EXHIBIT 10.1
BSP Rewards Network
0000 X. Xxxxxx Xx. Xxxxx 000 Xxxxxxx, XX 000000
Phone 000-000-0000 Fax 000-000-0000
xxx.XXXxxxxxxx.xxx
MEMBER PROVIDER WITH SITE AGREEMENT
THIS AGREEMENT (the "AGREEMENT") entered into as of the 16 day of November 2008
(the "EFFECTIVE DATE") provides the terms and conditions under which BSP
Rewards, Inc. a Florida corporation having an address at 0000 X. Xxxxxx Xxxx
Xxxxx 000 Xxxxxxx, XX 00000 XXX ("BSP REWARDS"), authorizes GIFT CARD DIGEST
CORP. (GCD) an Independent Contractor having an address at: 0000 Xxxx Xxxxxx
Xxxx, xxxxx 000, Xxxxxxx, XX 00000, ("MEMBER PROVIDER") to be its true and
lawful Marketing Representative for the purpose of marketing licenses of the BSP
Rewards Portals ("PORTALS") and other BSP Rewards products and services in
accordance with the terms and conditions contained in this Agreement. This
Agreement, together with the other agreements and schedules referenced in it,
contains the complete terms and conditions between the parties.
BSP REWARDS AND MEMBER PROVIDER AGREE AS FOLLOWS:
1. LICENSE
Member Provider is hereby given a non-exclusive license ("LICENSE" or "LICENSE
AGREEMENT"), permitting it to use and market BSP Rewards portals ("PORTALS") and
to resell BSP Rewards products and services for compensation in accordance with
BSP standard terms. The License also permits the Member Provider to offer
Portals at a retail market in accordance with the then latest BSP Rewards
pricing schedule. This Agreement does not modify the terms and conditions of any
Portal License Agreement, if applicable, which remain in full force and effect,
except as expressly modified by this Agreement.
2. RESELLING
The Member Provider intends to market the Portals to companies and various
businesses and individuals ("BUYERS") who may include companies, corporations,
charities, organizations and other entities that would have a use for the BSP
loyalty Rewards programs. Member Provider shall have the right to remarket BSP
Rewards, subject to the terms contained herein and as approved by BSP Rewards.
3. COMPENSATION
In addition to any compensation payable under the License, whenever a Buyer of a
Portal or of BSP Rewards products and services, whether sold directly by the
Member Provider or through sub-Member Providers and approved by BSP Rewards, BSP
Rewards shall pay Member Provider a fee in accordance with the included Fee
Schedule. BSP Rewards will remit payment as directed by Member Provider in the
time frames noted on the Compensation Schedule attached hereto.
4. PUBLICITY
Subject to Section 7, Member Provider and BSP Rewards agree that broad publicity
with respect to the relationship developed by this Agreement, and the advantages
of such relationship, will be permitted and actively encouraged and supported by
both parties. This publicity initiative will include, but is not limited to a
press releases issued by Member Provider and BSP Rewards, publicizing the
alliance between the parties, on site promotion and email campaigns. In this
regard, Member Provider and BSP Rewards shall agree on the form and content of
the press release prior to its release.
5. PROPRIETARY RIGHTS
5.1 OWNERSHIP. MEMBER PROVIDER understands and agrees that BSP Rewards is the
exclusive holder of and shall retain, all right, title and interest in and to
the Platform, Portal, Content and Engine and All Pages of the rewards site
including without limitation all intellectual Property provided by BSP
Rewards or any affiliated BSP company (EXCLUDING PROPRIETARY PAGES PROVIDED
BY MEMBER PROVIDER OR BUYERS).
5.2 INTELLECTUAL PROPERTY. Nothing herein shall grant a party any right,
title or interest in the other party's Intellectual Property, except as
explicitly set forth herein. At no time during or after the Term of this
Agreement shall a party challenge or assist others to challenge the other
party's Intellectual Property or the registration thereof or attempt to
register any trademarks, marks or trade names confusingly similar to those of
the other party.
5.3 INTELLECTUAL PROPERTY WARRANTY. The BSP Rewards and BSP Rewards Services
and the operation of the site(s) and co-branded site(s) as currently operated
by BSP Rewards, Inc. is designed to provide a link taking the end-user to
it's originating website. Other than claims arising out of the use of the
BrandAPort services, BSP Rewards shall not be responsible for unauthorized
use of the Co-branded sites by Member Provider, users of Member Provider's or
Buyers' Sites.
6. CONFIDENTIALITY
6.1 CONFIDENTIALITY INFORMATION. Each party (the "RECEIVING PARTY")
acknowledges that by reason of its relationship to the other party (the
"DISCLOSING PARTY") hereunder, the Receiving Party will have access to
certain information and materials, including the terms of this Agreement,
concerning the Disclosing Party's business, plans, technology, products and
services that are confidential and of substantial value to the Disclosing
Party, which value would be impaired if such information were disclosed to
third parties ("CONFIDENTIAL INFORMATION"). The Receiving Party agrees that
it shall not use in any way for its own account or the account of any third
party, nor disclose to any third party, any such Confidential Information
revealed to it by the Disclosing Party. The Receiving Party shall take every
reasonable precaution to protect the confidentiality of Confidential
Information. Upon request by the Receiving Party, the Disclosing Party shall
advise whether or not it considers any particular information to be
Confidential Information. The Receiving Party shall not publish any technical
description of the Disclosing Party's Confidential Information beyond any
descriptions published by the Disclosing party. In the event of expiration or
termination of this Agreement, there shall be no use or disclosure by the
Receiving Party of any Confidential Information of the Disclosing Party, and
the Receiving Party shall not develop any software, devices, components or
assemblies utilizing the Disclosing Party's Intellectual Property. Both
parties agree that the terms and conditions of this Agreement are
confidential and shall not be disclosed to any third party, unless disclosure
is compelled by final, non-appeal able order of a court of competent
jurisdiction. Member Provider agrees not to circumvent BSP in any manner
relative to service providers and clients of BSP or to utilize the
information gathered to circumvent and sell against BSP.
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6.2 EXCLUSIONS. Confidential Information does not include information
permitted to be disclosed under section 5 and any information that the
Receiving Party can demonstrate by written records: (a) was known to the
Receiving Party prior to its disclosure hereunder by the disclosing party;
(b) is independently developed by the Receiving Party; (c) is or becomes
publicly known through no wrongful act of the Receiving Party; (d) has been
rightfully received from a third party whom the Receiving party has
reasonable grounds to believe is authorized to make such disclosure without
restriction; (e) has been approved for public release by the Disclosing
Party's prior written authorization, or (f) must be produced or disclosed
pursuant to applicable law, regulation or court order, provided that the
receiving party provides prompt advance notice thereof to enable the
disclosing party to seek a protective order or otherwise prevent such
disclosure. In addition, Member Provider and BSP Rewards may disclose the
existence and terms of this Agreement in connection with a potential
acquisition of substantially the entire business of the other party, or a
private or public offering of securities of either party.
7. LIMITATION OF LIABILITY
Neither Member Provider Nor BSP Rewards Makes Any Warranty Whatsoever With
Regard To The Features, Functions, Performance, Quality Or Other Characteristics
Of The Service Each Company Provides. In No Event Shall Either Party Be Liable
To Each Other Or Any Other Entity For Any Special, Consequential, Incidental Or
Indirect Damages, However Caused, On Any Theory Of Liability, And
Notwithstanding Any Failure Of Essential Purpose Of Any Limited Remedy. Member
Provider Shall Not Be Liable To BSP Rewards Or Any Other Party For Any Damages
Arising From Third Party Unauthorized Access Or Use Of The BSP Rewards Service
Or Any Images Obtained By Using Any Of The BSP Rewards Services. BSP Rewards
Shall Not Be Liable To Member Provider Or Any Other Party For Any Damages
Arising From Third Party Unauthorized Access Or Use Of The BSP Rewards Service
Or Any Images Obtained By Using The BSP Rewards Services.
8. DISCLAIMERS
BSP Disclaimers. BSP Makes No Other Warranties Of Any Kind, Either Express Or
Implied, Statutory Or Otherwise, Regarding The BSP, MediaNet, Brand-A-Port
Service, Rewards Or Any Other Service Offered By Them And BSP Specifically
Disclaims Any Implied Warranties Of Non-infringement, Merchantability, Or
Fitness For A Particular Purpose. BSP Does Not Warrant That The Operation Of The
BSP Service Will Be Uninterrupted Or Error-Free. Furthermore, BSP Does Not Make
Any Representations Regarding The Use Of The Results Of The Use Of The BSP Site
In Terms Of Their Correctness, Accuracy, Reliability Or Otherwise.
9. TERMS AND TERMINATION
9.1 TERM. The term of this Agreement shall commence on the Effective Date and
continue for a period of 3 year after the Effective Date, unless earlier
terminated as set forth herein (the "TERM"). This Agreement shall renew for
successive 1-year periods, after the initial 3 Year Term, if agreed by both
parties within 30 days of license expiration. Either party may terminate the
Agreement on 60-days written notice during a renewed term. However, in no
event shall termination of this Agreement by BSP Rewards relieve it of the
obligation to remit payment to Member Provider for sales of Portals, Hosting
Services or other products and services to or through Buyers introduced by
Member Provider prior to such termination. The obligation to remit payment
shall survive termination of this Agreement and be enforceable so long as BSP
Rewards continues benefiting, directly or indirectly from the introduction.
9.2 TERMINATION FOR BREACH OR INSOLVENCY. A party shall have the right to
terminate this Agreement on written notice if (a) the other party ceases to
do business in the ordinary course or is insolvent (i.e., unable to pay its
debts in the ordinary course as they come due), or is declared bankrupt, or
is the subject of any liquidation or insolvency proceeding which is not
dismissed within 90 days, or makes any assignment for the benefit of
creditors, or (b) the other party breaches any material term of this
Agreement, including timely payments, and fails to cure such breach within 30
days after written notice thereof (collectively referred to herein as
"TERMINATING EVENTS"). In the event of a Terminating Event, involving Member
Provider, other than for an event involving fraud or dishonesty by Member
Provider, BSP Rewards shall be entitled to offset payments due under this
Agreement against its costs incurred as a result of the Terminating Event,
but shall remain obligated to remit all payments due under this agreement as
a direct or indirect result of the activities of Member Provider prior to the
effective date of termination.
10. EFFECT OF TERMINATION. Upon the expiration or termination of this Agreement:
10.1 Each party shall, within 30 days of such expiration or termination
return to other party or destroy all Confidential Information and all other
material received from such other party.
10.2 All rights granted by Member Provider hereunder to BSP Rewards shall
terminate. All rights granted by BSP Rewards hereunder to Member Provider
shall terminate, subject to the continuing obligation of BSP Rewards to remit
payment pursuant to the provisions of Compensation Addendum attached.
10.3 Sections 5, 6, 7, 9.2 10, 11, 12 and 13 shall survive the expiration or
termination of this Agreement for any reason.
11. REMEDIES
11.1 INDEMNIFICATION. Member Provider and BSP Rewards shall indemnify and
hold harmless each other, and their respective directors, officers,
employees, and agents, from and against all claims, losses, damages and
expenses (including reasonable attorney's fees) resulting from the breach of
any agreement, representation or warranty set forth herein; provided the
indemnified party provides the indemnifying party with (i) prompt written
notice of such claim or action, (ii) sole control and authority over the
defense or settlement of such claim or action and (iii) proper and full
information and reasonable assistance to defend and/or settle any such claim
or action.
11.2 INJUNCTIVE RELIEF. The parties acknowledge that the breach or threatened
breach of Sections 6 and 7 would cause irreparable harm to the non-breaching
party, the extent of which would be difficult to ascertain. Accordingly, each
party agrees that, in addition to any other remedies to which a party may be
legally entitled, a party may seek immediate injunctive relief in the event
of a breach or threatened breach of such sections by the other party or any
of the other party's employees or subcontractors.
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12. MISCELLANEOUS
12.1 ASSIGNMENT. This Agreement will be binding upon and inure to the
benefits of the parties hereto and their permitted successors and assigns.
Neither party may assign or otherwise transfer this Agreement without the
other party's prior written consent except to a successor.
12.2 WAIVER AND AMENDMENT. No modifications, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. No failure or delay by either party in exercising
any right, power, or remedy under this Agreement shall operate as a waiver of
any such right, power or remedy.
12.3 GOVERNING LAW. The laws of the State of Florida shall govern this
Agreement, without reference to conflicts of law provisions.
12.4 NOTICES, ETC. Any notice required or permitted by this Agreement shall
be deemed given if delivered by registered mail, postage prepaid, addressed
to the other party at the address shown at the beginning of this Agreement or
at such other address for which such party gives notice hereunder. Delivery
shall be deemed effective 3 days after deposit with postal authorities.
Email, facsimile or other form of transmission pursuant to which BSP Rewards
receives actual notice of the accounts into which the funds are to be wired
may give notices of the accounts into which payment is to be wired shall be
effective and BSP Rewards shall be entitled to rely upon them as if they were
sent in accordance with the notice provisions of this paragraph.
12.5 INDEPENDENT CONTRACTORS. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be an
employees, agent, joint venture Member Provider or legal representative of
the other for any purpose and shall not have any right, power, or authority
to create any obligation or responsibility on behalf of the other.
12.6 SEVERABILITY. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law, such provision shall
be changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the remaining
provisions of this Agreement shall remain in full force and effect.
12.7 COMPLETE UNDERSTANDING. This Agreement constitutes the final, complete
and exclusive agreement between the parties with respect to the subject
matter hereof, and supersedes any prior or contemporaneous agreement, either
written or oral.
12.8 FORCE MAJEURE. Except with respect to obligations to make payments
hereunder, neither party shall be deemed in default hereunder, nor shall it
hold the other party responsible for, any cessation, interruption or delay in
the performance of its obligations hereunder due to causes beyond its
reasonable control including, but not limited to: earthquake, flood, fire,
storm or other natural disaster, act of God, labor controversy or threat
thereof, civil disturbance or commotion, disruption of the public markets,
war or armed conflict or the inability to obtain sufficient material,
supplies, labor, transportation, power or other essential commodity or
service required in the conduct of its business, including internet access,
or any change in or the adoption of any law, ordinance, rule, regulation,
order, judgment or decree.
12.9 NO DISPARAGEMENT. Each party agrees that, during the Term of this
Agreement and for a period of five (5) years thereafter, neither will make
written or oral comments regarding the other that are negative, disparaging,
tend to bring the other into disrepute or call into question the business
acumen, character, honesty or integrity of the other.
13 BRANDED REWARDS SITE BSP Rewards, Inc. will provide Member Provider or their
designated Organization a Branded BSP Rewards site under BSP's standard terms
and conditions NOTED ON THE ATTACHED ADDENDUM
BRANDED REWARDS SITE BSP Rewards, Inc. will provide Member Provider or their
designated Organization a Branded BSP Rewards site under BSP's standard terms
and conditions, to be known as:
Member Provider or the designated Organization shall pay the following to BSP,
as compensation for same.
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SPECIAL MEMBER PROVIDER | Site Management and Maintenance fee:
Branded BSP Site | $ 10 (1) per. Mo.
$ 250 (1) set up fee (if standard) | (paid quarterly in advance)
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PAYABLE WITH AGREEMENT: $ 0 MAKE CHECK PAYABLE TO: BSP REWARDS
(1) Said fees commence 90 days after site is completed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the day and year last set forth below.
BSP REWARDS, INC. GIFT CARD DIGEST CORP.
/s/ Xxxxxx X. Xxxxx /s/ Xxxxx Xxxxxxx
------------------- -----------------
Signature Signature
By: Xxxxxx X. Xxxxx By: Xxxxx Xxxxxxx
Title: Chief Executive Officer Title: President
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Member Provider Compensation Schedule
Member Providers are licensed to market the BSP Rewards and Brand-A-Port
applications and receive commission on all product sales plus residual income on
hosting/maintenance fees as outlined on the Compensation Schedule outlined
below.
MARKETING AND PROMOTION
Member Providers are expected to actively market and promote BSP Rewards
Application to their existing customer base, business contacts and visitors to
their web site. Promotion by newsletters and e-mail to customers is encouraged,
but we do not encourage spam e-mail and hence specifically ask Member Providers
not to promote BSP Rewards Program or Applications via unsolicited e-mail.
MEMBER PROVIDER TRACKING
Clients are identified as coming from Member Provider and sub-Member Providers
(if applicable) by Member Provider registering prospects in accordance with the
procedure outlined below.
COMMISSION
Commissions due Member Provider are as outlined in herein. Commissions are only
paid each month if the amount owing exceeds $100 US. BSP Rewards reserves the
right to change the level of commission with out notice. (Pricing and products
subject to change without notice).
BSP Rewards shall also remit to Member Provider ( 50 %) of the net revenue
earned, received and collected by BSP Rewards from Dealers, Merchants,
Companies, Organizations, Groups for which it brought to BSP and has a signed
BSP Rewards Agreement that has been accepted by BSP Rewards and who have been
approved in writing by BSP Rewards. (Including gift cards)
NET REVENUE shall be defined as the revenue received by BSP Rewards less the
amount given to members and other participating fee and/or organizations who
receive payment from said revenue.
BASIC COMPENSATION:
Member Provider shall receive a commission statement within 15 days of the end
of each calendar month and be issued a check for commissions earned in
accordance with the Pricing Structure and Details schedule attached hereto.
RECORDS
BSP Rewards shall maintain books and records and, if practicable, shall provide
for online confirmation of sales and payments. BSP Rewards shall permit Member
Provider or its designee's reasonable access during normal business hours and,
upon request, to verify funds and payments due pursuant to this Agreement.
CUSTOMER CONTACT
Once a customer has come from the Member Provider to BSP Rewards, BSP Rewards
deals with the customer directly, issuing the software application from the BSP
Rewards server and billing the customer. BSP Rewards handles all technical
support and refund issues.
REFUNDS
If a refund is issued to a customer who came from a Member Provider, the Member
Provider's commission account is adjusted and the commission is subtracted
accordingly.
TERMINATION
The Marketing Partner Agreement can be terminated at any time at the discretion
of either party with the understanding that all terms that survive said
termination as noted, shall remain in force and effect as outlined. IF MARKETING
PARTNER IS NOT IN DEFAULT OF ANY OF THE TERMS OF THIS AGREEMENT, THEN IN THAT
EVENT MARKETING PARTNER SHALL CONTINUE TO RECEIVE COMMISSIONS ON SALES
EFFECTUATED BY THEM AND ACCEPTED BY BSP SUBJECT TO CLIENTS REMAINING IN THE BSP
PROGRAM AND BSP'S RECEIPT OF FUNDS FROM SAID CLIENT AND SUBJECT TO MARKETING
PARTNER ACTIVELY SERVICING SAID CLIENT RELATIVE TO THE BSP PROGRAM.
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