Exhibit 10.4
Execution Copy
Confidential
Marketing Agreement
This Marketing Agreement (the "Agreement") is entered into as of the date
identified below (the "Effective Date") by and between AOL Canada Inc. ("AOL"),
a Canada corporation with its principal place of business at 00 Xx. Xxxxx Xxxxxx
Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0, and the marketing partner ("MP")
identified below (each, a "Party" and collectively, the "Parties").
Name of Marketing Partner ("MP"): The Buck a Day Company Inc
Corporate Address: 000 Xxxxx Xxxxx Xxxxx 000 Xxxxxxxxx Xxxxxxx X0X 0X0
MP Contact Person: Xxxxxx LaBuick Title: President and Chief Operating Officer
Contact Phone: 000-000-0000 x 000 Fax: 000-000-0000 E-mail: Xxxxxx@xxxxxxxxx.xxx
Designated Product(s): Computer Products and other Consumer Electronics
Distribution Start Date: February 28, 2002 Total Subscription $70 (12 months of unlimited AOL
Charge: access consumer offer)
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
Distribution
1. In the Box CD-ROM. During the Term, MP shall at its own cost insert a package
containing a CD-ROM with AOL Software and related documentation (the "AOL
Deliverables") into each box for shipment or delivery of a Designated Product
(described above). AOL shall manufacture and deliver the AOL Deliverables to no
more than four (4) MP distribution centres, at AOL's own cost. MP hereby
requests, and AOL hereby agrees to supply, an initial order of a minimum of
1,500 AOL Deliverables. After delivery of the initial order to MP, AOL will
fulfill future orders of the AOL Deliverables within 90 days of AOL receiving
the Monthly Report (as defined below). AOL may elect to limit quantities of
excess AOL Deliverables in MP's inventory from time to time, consistent with
commercially reasonable inventory practices. MP covenants to distribute a
minimum of 1,000 AOL Deliverables in each calendar month of the Term.
2. Preferred Status. MP hereby agrees that the AOL Software and the AOL-brand
Interactive service (the "Service") shall be the exclusive ISP and Internet
service to be promoted and bundled with the Designated Products. "Exclusive"
herein means that the AOL Service is be only ISP software/service to be bundled
with Designated Products, except for ISP software or services that are factory
installed, or otherwise shipped with a pre-loaded operating system. In addition
MP shall prominently feature the AOL Service in all advertising, packaging other
promotion of the Designated Products.
3. Product Feature List. MP agrees to include the "AOL Included" logo and/or
"Twelve Months of AOL Membership Included" messaging (or other applicable
messaging) in the Product Feature List. The "Product Feature List" is any
statement (or sticker) on the outside of the packaging of the Designated
Products describing, for example, the MP website product descriptions, or
product features. AOL agrees to provide required artwork or text copy for such
Product Feature List.
4. Consumer Offers Available for Marketing by MP. During the Term of the
Agreement, the Parties shall discuss from time to time special programs and
consumer offers for MP's use, to market and promote the AOL Service as well as
to encourage sales of Designated Products. The Parties will mutually agree upon
the scope and nature of such offers and the appropriate sales and distribution
channels for each different promotional offering. As of the Effective Date, the
Parties agree that a "12 Months Included" AOL Service offer shall be the
predominantly promoted offer on the Designated Product. No advertising,
packaging or other promotional materials using the AOL brand or referencing the
AOL Service may be publicly circulated without AOL's prior written approval
thereof.
5. New Releases of AOL Software. AOL further agrees to provide MP with
deployment schedules for upgrades or new releases of AOL Software sufficiently
in advance for MP to facilitate MP's inclusion of such AOL Software into new
builds of the Designated Products.
Payments and Terms
6. Total Subscription Charge. MP shall pay AOL the Total Subscription Charge
referenced above for each AOL Deliverable that MP requests in the Monthly Report
and which AOL supplies to MP for distribution pursuant to this Agreement,
regardless of whether MP has or will actually distribute such AOL Deliverable to
a consumer. The Parties acknowledge that the Total Subscription Charge
referenced herein of seventy Canadian dollars (C$70.00) is a wholesale price
negotiated by the Parties in reference to the specific "12 months of unlimited
AOL Service" consumer offer, which MP shall offer to each consumer who acquires
a Designated Product. In the event that a different consumer offer is made
available to MP, a different Total Subscription Charge may apply.
7. Payment Terms. All invoices are due and payable to AOL by MP forty-five (45)
days from date of each shipment of AOL Deliverables. MP acknowledges that AOL
shall be
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entitled to discontinue the shipment of AOL Deliverables to MP when any MP
payment obligation to AOL has aged past 60 days, until MP makes payment of all
such obligations in full. In the event that MP defaults in its payments to AOL
such that AOL terminates this Agreement pursuant to Section 11 below, MP shall
reimburse AOL for the production cost of any AOL Deliverables ordered by AOL in
good faith pursuant to a Monthly Report (defined below) provided by MP prior to
such termination by AOL.
Monthly Reporting
8. Forecasting. MP shall provide to AOL a monthly report containing (a) a
forecast of the number of AOL Deliverables MP reasonably expects will be
required for the next-following 120 days; (b) a statement of the number of AOL
Deliverables distributed in the previous month; (c) an accounting of the number
of AOL Deliverables remaining in MP's inventory; and (d) such other information
as AOL may reasonably request (the "Monthly Report").
Miscellaneous
9. Future Activities. MP and AOL agree to discuss in good faith additional and
further opportunities to exploit each other's marketing channels on terms to be
agreed, including online promotion of MP and its products on the AOL Service,
and additional Software distribution activities. In addition, the Parties wi11
explore and develop, if technically feasible, alternative registration methods
for the AOL Service such that MP's customers would not be required to meet AOL's
existing credit-card requirements.
10. Term. Unless earlier terminated as set forth herein, the term of this
Agreement will begin on the Effective Date and continue for a period of three
(3) years (the "Term").
11. Termination. Except as expressly provided elsewhere herein, either Party may
terminate this Agreement at any time (a) in the event of a material breach
hereof by either Party which remains uncured after thirty (30) days written
notice thereof to the other Party; or (b) immediately following written notice
to the other Party if the other Party (i) ceases to do business in the normal
course, (ii) is the subject of any proceeding related to the liquidation or
insolvency (whether voluntary or involuntary) which is not dismissed within
ninety (90) calendar days, or (iii) makes an assignment for the benefit of
creditors. Upon expiration or termination, the Parties shall each use all
reasonable efforts to return the other Party's materials as soon as is
reasonably practical, and settle undisputed accounts in accordance with the
provisions of this Agreement.
12. Renewal. This Agreement may be extended for subsequent one-year terms only
by mutual written agreement of the Parties.
13. Notices. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes: (i) on the delivery date if
delivered through a confirmed facsimile or if delivered personally to the Party
to whom the same is directed; (ii) one (1) business day after deposit with a
commercial overnight carrier, with written verification of receipt, or (iii)
five (5) business days after the mailing date, whether or not actually received,
if sent by regular mail, return receipt requested, postage and charges prepaid,
to the Party at the address specified above. Notice to AOL shall be to the
attention of the Vice President, Marketing (Fax No. 000-000-0000) with a copy to
to General Counsel (Fax No. 000-000-0000).
Legal Terms and Conditions
14. This Distribution Agreement hereby incorporates those Standard Legal Terms
and Conditions located at the URL
xxxx://xxx.xxx.xx/xxxx/xxxxx_xxxxxxx_xxxxx.xxx. MP confirms that it has has
read, understands, and agrees to the adoption and incorporation by reference
herein of such Standard Legal Terms and Conditions.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of:
February 25, 2002.
AOL CANADA INC. THE BUCK A DAY COMPANY INC.
By: Xxxxxxxxx X. Xxxxxx /s/ Xxxxxxxxx X. Xxxxxx
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25/2/02
Title: Vice President, Marketing
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By: Xxxxxx LaBuick /s/ Xxxxxx LaBuick
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Title: President & Chief Operating Officer
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