AGREEMENT FOR DIRECT RESPONSE SERVICES
Exhibit
10.22
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InPulse
Response Group, Incorporated-Valcent Products Inc.
January
12, 2007
Page
1
of 6
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THIS
Agreement (“Agreement”) is made as of January
12, 2007,
by and
between InPulse Response Group, Inc., an Arizona corporation (“InPulse”), and
Valcent Products Inc. located at 0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxx X, Xx Xxxx,
Xxxxx 9922 the entity whose signature is below (“Client”), for the furnishing of
Services related to Client’s direct response marketing campaigns.
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1.
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InPulse
Responsibilities
--
InPulse will provide live operators and recorded telephone answering
services to third party consumers who are identified by Client through
Client’s direct response marketing campaign as set forth in this Agreement
and in the manner and method identified in separate addendums to
this
Agreement (the ”Services”). Each such addendum will outline the pricing
associated with Client’s campaign and may contain additional Services
detail. InPulse’s responsibilities in providing Services may
include:
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A.
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Inbound
calls
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Receive
telephone calls from consumers generated by Client’s advertising and promote and
sell the Client’s product and services by using scripts pre-approved by Client.
InPulse shall not cross sell or up sell any products unless first approved
by
Client. InPulse shall receive inbound calls twenty-four (24) hours a day, seven
(7) days a week, fifty-two (52) weeks a year.
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B.
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Outbound
calls
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Generate
outbound telephone calls to Client’s list(s) to promote and sell approved
products and/or services by using scripts pre-approved by Client. InPulse shall
not cross sell or up sell any products unless first approved by Client.
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C.
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Scripts
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Implement,
in conjunction with and subject to the approval of Client, sales scripts for
InPulse sales representatives to use in the selling of the product and
authorized cross sells and up sells. All sales scripts will be submitted to
Client for review for accuracy and completeness and will not be used unless
Client has approved them in writing.
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D.
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Contact
Person
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InPulse
shall designate one (1) primary contact to the Client account who will be
available during regular business hours (9:00 a.m. to 5:00 p.m. Pacific time)
and InPulse will assign an alternate contact for the Client account when the
primary contact is not present and readily accessible.
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E.
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Monitoring
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InPulse
will monitor its telephone operators’ performance on a regular basis for quality
assurance purposes. InPulse will record and archive all sales verifications
and
shall keep all such recordings for a minimum of two years from the inception
date of each recording. For purposes of this provision, the sales verification
portion of the call shall include disclosure of all material terms of the
product offer and the customer’s acceptance of the offer.
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F.
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Data
Transmission
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InPulse
agrees to transmit all completed orders for Client’s campaign to Client (or
Client’s designee) in the format reasonably requested by Client. This format
shall be mutually agreed upon prior to beginning a campaign and will require
Client approval before campaign begins. InPulse will not be responsible or
liable for any costs relating to any checking or credit card accounts, or any
related fees and taxes. Client shall be responsible for establishing policies
and rules for the collection and payment of shipping charges, handling charges,
insurance charges, and all state and local sales/transaction privilege taxes
and
any other applicable taxes. Client shall be responsible for the reporting and
payment of all state and local sales/transaction privilege taxes and any other
applicable taxes.
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2.
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Client
Responsibilities
-
Client will assist and cooperate to the best of its ability with
InPulse
to facilitate the provision of such Services and Client agrees to
provide
all materials reasonably required by InPulse to perform Services,
including as applicable, but not limited to: hiring profiles; scripts;
program content and materials; Client or third party databases; forecasts;
current process performance statistics; Client or third party software,
hardware, systems, routing and network addresses and configurations;
and
key contacts for problem escalation (collectively the “Client Materials”).
Client agrees to provide this assistance and cooperation within a
24-hour
period for requests from InPulse. If Client’s products, programs,
materials, goods and property are objectionable, misleading,
fraudulent, prohibited by law or sexually explicit as determined
by
InPulse, InPulse may, upon notice to Client, immediately terminate
its
rendering of further Services under this Agreement without liability
and
Client shall be responsible for payments for those Services already
provided as outlined within this Agreement.
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1
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InPulse
Response Group, Incorporated-Valcent Products Inc.
January
12, 2007
Page
2
of 6
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3.
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Confidentiality
- Both
parties recognize and mutually agree that all information regarding
the
other party’s proprietary technologies, services, pricing and information
are confidential and proprietary, and as such, all confidential
information may not be disclosed or used for any purpose whatsoever
except
to perform under this Agreement. All consumer information captured
over
the telephone (including, but not limited to, names, addresses, telephone
numbers, ANI, credit card numbers) is the confidential information
of
Client. InPulse’s confidential information shall include, but not be
limited to the trade secrets, business affairs, computer systems,
software, analytical procedures, techniques, phone numbers, skills,
ideas,
models, and research of InPulse, its Affiliates or their employees,
suppliers or agents and all technical, financial, business and analytical
marketing information derived from the performance of the Services.
Each
party shall exclusively own its confidential information and no rights
to
such information are transferred by this Agreement. The confidentiality
obligations of is paragraph does not apply to (i) information known
or
which has become public through no fault of either party, including
but
not limited to, information either party already had in its possession
prior to the date of disclosure of such information, (ii) information
either party obtains from a third party on a non-confidential basis;
or
(iii) any information that InPulse or Client is required by law rule
or
regulation to disclose(and then only after providing prior notice
to the
discloser).
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4.
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No
Hire-
Client, or any successor in interest to Client or any company, person
or
entity under control of Client, shall not employ any InPulse employee
in
any capacity, including subcontractor status, unless authorized in
writing
by InPulse. Client agrees that such action without prior written
authorization from InPulse would result in significant damage to
InPulse,
and Client agrees to pay one times the annual compensation of the
employee
and any costs associated with replacing that employee as liquidated
damages for its breach of this
provision.
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5.
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Telephone
Number Utilization
-
In the event that Client utilizes inbound telesales Services InPulse,
will
provide to Client inbound telephone coverage via exclusive toll-free
long
distance telephone numbers and Client shall direct customers to call
specific telephone numbers as assigned to Client by InPulse. Client
shall
use these telephone numbers only during the term of the Agreement
and such
telephone numbers are and will remain the exclusive property of InPulse.
InPulse will be responsible for completing the programming of such
telephone numbers as agreed between the Client and InPulse.
Upon
termination of this Agreement, InPulse will terminate the Client’s right
to utilize such telephone numbers. In the event that this Agreement
is
terminated per Paragraph 9 InPulse may direct sales consultants to
inform
callers on a particular telephone number that InPulse is not taking
calls
for such program, service or product. In such event as InPulse continues
to take such calls for Client, Client shall pay InPulse a per-second
charge for InPulse operators handling such calls, a charge for
informational announcement time and commission per sale as defined
in this
or any other agreement between the parties. InPulse will not be liable
to
Client or any other person for direct or indirect claim, loss, injury,
damage or cost sustained in connection with the termination of the
Client’s right to utilize an telephone
number.
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In
the
event Client utilizes outbound teleservices, InPulse will utilize its own
telecommunications services to enable the calling campaign to proceed on
Client’s behalf.
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6.
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Payment
for Services -
InPulse will invoice Client for Services on a weekly basis. Payment
is due
14 days from invoice date. Any amount not paid within 14 days old
shall be
subject to a five percent (5%) late fee. Furthermore, any amount
that is
not paid within fourteen (14) days will accrue interest at 1.5% per
month,
or the maximum allowable by law. Payment of InPulse’s invoices is neither
dependent upon Client’s collection from customers nor dependent on
Client’s customer returns. It is the responsibility of Client to charge
and collect upon customer’s credit cards or other payment options, and to
facilitate and fulfill customer orders promptly. Based on the information
provided by Client and InPulse’s account analysis, InPulse will establish
a credit limit for Client. InPulse may
require a security deposit prior to initiating Services. If Client
exceeds
the established credit limit, the amount above the credit limit is
immediately due and payable. If Client is unable to resolve any credit
issue to the satisfaction of InPulse, InPulse may
immediately terminate Services for Client and terminate Client’s right to
utilize any telephone number belonging to InPulse. At InPulse’s option,
InPulse may
continue to take orders but hold them from fulfillment until such
time as
the credit condition is removed by mutual agreement. If there remain
unencumbered funds following completion of Client’s projects and Client
has paid all outstanding invoices, InPulse will refund any balance
of the
security deposit within fourteen (14) days of request by
Client.
Client
Shall be responsible for, and shall
promptly pay, all sales taxes, service taxes, use taxes, fees or
charges
levied or assessed by any governmental authority or agency thereof
as a
result of this Agreement or the Services to be provided to Client
thereunder except taxes levied or assessed on the net income or profit
of
InPulse.
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2
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7.
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Program
Pricing - InPulse
shall provide to Client the specific charges and fees for each requested
Service as defined in attached addendums. InPulse reserves the right
to
modify these charges on the basis of a requested change in Services
by
Client.
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8.
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Duration
and Termination - This
Agreement will be in effect for a period of one (1) year from the
date of
this Agreement, with an automatic renewal on an annual basis. Both
parties
reserve the right to terminate this Agreement by providing thirty
(30)
days written notice to the other party, provided however, the terms
and
conditions of this Agreement shall remain in full force and effect
regarding any unfulfilled obligations of either
party.
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9.
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Representations
and Warranties -
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A.
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Each
party represents and warrants to the other that such party’s execution and
performance of this Agreement will not violate any provision of law,
rule,
regulation, order, permit or license to which such party is subject
or
pursuant to which such party conducts its business, and that each
party
will comply with all laws, rules, regulations, orders, permits or
licenses
pursuant to which such party conducts its business, including without
limitation compliance with all consumer protection laws applicable
to any
product or service offered by such
party.
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B.
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Client
represents and warrants: (i) that the Client Materials, all
representations to be made by InPulse to callers as a part of Client's
programs, and, if applicable, the content and nature of all promotions
and
advertising to induce calls to Client's programs will be in compliance
with laws, rules, regulations, orders, permits, agreements, or licenses;
and (ii) Client is solely responsible for the content and rights
to use
the Client Materials and InPulse’s use of the Client Materials shall not
violate the rights of any third party or any law, rule or regulation.
Client specifically acknowledges and agrees that InPulse has not
and is
not expected to provide Client with any analysis, interpretation
or advice
regarding the compliance of any aspect of Client's Materials or program
with any laws, regulations guidelines or third party
rights.
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10.
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Assignment
--
InPulse may delegate or assign this Agreement, any portion thereof,
or any
duties under this Agreement at its discretion, at any time. Any such
delegation or assignment shall provide that the assignees are subject
to
all the terms and conditions set forth in this
Agreement.
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11.
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Inability
to Perform - In
the event that, due to circumstances beyond InPulse’s control, (including
but not limited to labor disturbances, strikes, lockouts, failure
of a
carrier to provide lines of service, Government regulations or
interference, accidents, fires, explosions, acts of terrorism or
any
similar interruption beyond InPulse’s reasonable control) InPulse is
unable to provide Services, InPulse’s obligations under this Agreement
will be suspended until such time as Services can be restored. However,
that inability will not absolve Client of its responsibilities under
this
Agreement, including payment of any outstanding invoices as due.
In the
event of any interruption of Services, InPulse shall attempt to restore
such Services as soon as possible. InPulse will
work with Client to ensure there are adequate back up and contingency
plans to reroute projects to overflow telemarketing companies in
order to
minimize the possibility of Client losses and to maintain the program
for
the Client in the event of such emergencies. Client will be responsible
to
arrange for such overflow telemarketing companies, should Client
elect to
provide overflow facilities and disaster recovery in the event
InPulse is
unable to perform. This contingency overflow and disaster recovery
will be
arranged at the sole expense of the Client. Additionally, Alternative
Destination Routing features or any advanced telephone network routing
features requested by Client will be implemented and billed to Client
at
InPulse’s cost. If InPulse’s obligations are suspended pursuant to this
section, InPulse will
not be liable to the Client or any other person or entity for any
claims
or causes of action in any way arising out of or related to such
suspension.
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3
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InPulse
Response Group, Incorporated-Valcent Products Inc.
January
12, 2007
Page 4
of 6
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12.
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Limitation
of Liability - EXCEPT
AS EXPRESSLY PROVIDED HEREIN, INPULSE MAKES NO EXPRESS OR IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS
FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PROVIDER EXPRESSLY
DENIES
ANY REPRESENTATION
OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE
SERVICES
OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
CLIENT’S SOLE
AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT BY INPULSE
SHALL BE
THE RIGHT TO TERMINATE THE AGREEMENT. UNDER NO CIRCUMSTANCES
SHALL INPULSE
BE LIABLE TO CLIENT FOR ANY INDIRECT, EXEMPLARY, DIRECT, SPECIAL,
PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSS OF PROFITS
GOODWILL
OR DATA, OR COST OF COVER EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY
OF SUCH. InPulse and its suppliers do not warrant the performance
or
results Client may obtain by using InPulse’s Services. Results may vary
from time to time and neither payment for Services nor the
responsibilities of Client will be relieved by any changes in
the results
of Clients direct marketing programs. Any and all actions or
claims
brought against InPulse,
its
suppliers or successors for breach of Agreement must be commenced
within
six (6) months after Client becomes aware of such cause of action
or
claim, or such cause of action or claim shall be forever barred.
In the
event of differences between the terms and conditions of this
Agreement
and any other agreement between the parties, the terms and conditions
of
this Agreement shall
control.
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13.
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Indemnification
-
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A.
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Client
shall indemnify, defend and hold InPulse and its Affiliates and their
officers, directors and employees harmless from any and all third-party
claims, actions, suits, proceedings, costs, expenses, damages (including
punitive, treble and enhanced damages) and liabilities, including
reasonable attorneys’ fees arising out of, connected with or resulting
from: (i) a breach by Client of any term of this Agreement; (ii)
the
Client Materials; or (iii) a claim by any customer of Client or any
party
called on Client’s or its customer’s behalf relating to any defect in any
product or service offered by Client or any of its customers. InPulse
shall indemnify, defend and hold Client and its officers, directors
and
employees harmless from any and all third-party claims, actions,
suits,
proceedings, costs, expenses, damages (including punitive, treble
and
enhanced damages) and liabilities, including reasonable attorneys’ fees
which arise out of or result from a breach by InPulse of any term
of this
Agreement.
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B.
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The
party claiming indemnification shall: (i) promptly notify the indemnifying
party of any claim in respect of which the indemnity may apply; (ii)
relinquish control of the defense of the claim to the indemnifying
party;
and (iii) provide the indemnifying party with all assistance reasonably
requested in defense of the claim. The indemnifying party shall be
entitled to settle any claim without the written consent of the
indemnified party so long as such settlement only involves the payment
of
money by the indemnifying party and in no way affects any rights
of the
indemnified party.
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14.
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Entire
Agreement - This
Agreement constitutes the entire understanding between InPulse and
Client and supersedes all negotiations, representations, prior discussions
and preliminary agreements between the parties relating to the subject
matter hereof. Any modification or addenda must be in writing and
signed
by both parties.
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15.
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Controlling
Law
-
The validity, interpretation, and performance of this Agreement,
will be
controlled and construed under the laws of the State of Arizona.
Client
agrees to bring any litigation regarding this Agreement exclusively
in the
Maricopa County, Arizona Superior Court or the United States District
Court for the District of Arizona, Phoenix Division.
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16.
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Further
Action - InPulse
and Client shall execute and deliver all documents, provide all
information and take or forebear from all such action as may be necessary
or appropriate to achieve the purposes of this
Agreement.
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17.
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Severability
- In
the event that any provision contained herein is held to be invalid,
illegal or unenforceable by any court, such provision will be deemed
severable from the remainder of this Agreement, and shall not affect
the
remaining provisions of this
Agreement.
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18.
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Waiver
- The
failure of either InPulse or Client to take affirmative action, with
respect to any conduct of the other which is in violation of this
Agreement, shall not be construed as a waiver of the violation or
breach,
nor shall it be construed or deemed to be a waiver of any rights
of the
parties.
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4
| 19. |
Publicity
- Any
publicity concerning the relationship established by this Agreement
shall
be released only upon mutual consent of both InPulse and
Client. InPulse and
Client agree that InPulse and/or any of its authorized representatives
may
use Client’s name as a reference, or as part of InPulse’s Client list, in
any written or oral proposal which InPulse may make to prospective
Clients, provided Client is notified prior to disclosure and that
such use
of this information shall not constitute a disclosure of confidential
information.
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| 20. |
Counterparts;
Facsimiles
-
This Agreement may be executed in one or more counterparts, each
of which
shall be deemed to be an original, and all of which together shall
constitute one and the same Agreement. This Agreement may be executed
and
delivered by electronic facsimile transmission with the same force
and
effect as if it were executed and delivered by the parties simultaneously
in the presence of one another, and signatures on a facsimile copy
hereof
shall be deemed authorized original signatures.
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InPulse Response Group, Incorporated
0000 X Xxxxxxxx Xx. Xxxxx #000
Xxxxxxxxxx, XX 00000
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Valcent Products, Inc.
0000 Xxxxxxxx Xxxx Xxxxxx, Xxxxx X
Xx Xxxx, Xxxxx 00000
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By:
/s/ Xxxxx Xxxxxxxxxxx
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By:
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Xxxxx
Xxxxxxxxxxx
CEO
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January
12, 2007
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January
12, 2007
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Date
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Date
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5
Exhibit
A: Inbound Pricing Addendum
Campaign
Name: Nova Skincare System
Client
Name: Valcent Products, Inc.
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Administrative
Fees:
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Program
Set-Up Fee:
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$1,500
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Monthly
Service Minimum:
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$3,000
waived for 90 days
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Any
difference between actual Monthly xxxxxxxx (using media calendar)
and the
minimum will be billed to Client.
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Security
Deposit:
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If
required, after InPulse Credit Review
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If
required, must be paid before calls commence.
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*Telemarketing
Fees:
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Commission
per Order
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Commission
incentive will be 3% of the net sale, or $4.00 per basic offer, whichever
is greater. Also, a $.50 commission per continuity sale will be assessed,
if applicable.
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Talk
Time Charge
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$0.0133
per second
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Informational
Announcement Time
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$0.004
per second
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Training
Fees:
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Specialized
Training after Program Launch
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$15.00
per telesales consultant, per hour
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Subsequent
to initial agreed upon training
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Reporting/Data
Transmission Fees:
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Customized
Reporting
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$150
per customized programming hour
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As
requested by Client and agreed to in writing
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Additional
services are available upon
request
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*
Any material change to the original offer structure (e.g. additional products,
change in product pricing) may require a contract addendum defining additional
and/or different Telemarketing Fees.
| InPulse Response Group Inc. | Valcent Products Inc. | |
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By:
/s/ Xxxxx Xxxxxxxxxxx
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By:
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Xxxxx
Xxxxxxxxxxx
CEO
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January
12, 2007
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January
12, 2007
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Date
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Date
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6
