EXHIBIT 10.24
AT&T PREPAID CARD CO-MARKETING FUND AGREEMENT
This Agreement is made this 16th day of January , 1998 ("Effective Date"),
by and between AT&T CORP., a corporation organized under the laws of New York
with a place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxxx
00000 ("AT&T") and DATAWAVE SYSTEMS INC. ("Company"), a corporation organized
under the laws of the province of British Columbia, with a principal place of
business at 000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, XX, Xxxxxx X0X 0X0.
RECITALS
WHEREAS, AT&T sells a tariffed prepaid card service pursuant to tariffs and/or
agreements which is available for purchase and resell; and
WHEREAS, Company separately agreed to purchase AT&T's branded prepaid card
service (the "AT&T Branded Prepaid Card" or "Cards"); and
WHEREAS, Company hereby agrees to provide certain promotional opportunities for
the Cards, including, but not limited to, displaying them in Company-authorized
locations and displaying promotional materials related to the Cards in Company-
authorized locations;
NOW, THEREFORE, in consideration of the foregoing, the covenants hereinafter set
forth, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. PURPOSE OF THIS AGREEMENT
1.1 AT&T and Company agree that there is a mutual benefit in creating and
implementing a joint program of marketing, publicity and customer education
within the 48 continental states of the United States of America and Hawaii (the
"Territory"). Each party, shall make and mintage its own resources to meet its
obligations set forth in this Agreement.
1.2 Each party agrees that except as provided in Sections 2 and 3 below
and as otherwise expressly provided in this Agreement, the obligations of each
party under this Agreement are nonexclusive and the other party may enter into
arrangements similar to this Agreement with third parties.
1.3 As provided in Attachment A and B to this Agreement, Company shall
provide certain marketing/promotional opportunities, for example; shelf space in
Company's authorized retail outlets and/or vending machines and counter space
for point-of-sale materials, for the Card and AT&T shall provide certain
marketing support, for example; vending machine graphics; point-of-sale material
and co-marketing dollars to help offset the cost of certain Company
advertisements, as described below to Company. Company agrees to use such
marketing support to promote the AT&T Branded Prepaid Card. The extent of AT&T's
commitment to provide
marketing support shall be measured in Co-Marketing Fund dollars. Company shall
be provided support as described in Attachments A and B to this Agreement.
1.4 Company understands that the prepaid card service offered to Company
is not governed by this Agreement, but instead is governed by separate tariffed
terms. This Co-Marketing Agreement is subject to Company maintaining the
provisions of the tariff subscribed to in good standing with AT&T.
2. COMPANY OBLIGATIONS
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2.1 Company will promote AT&T Branded Prepaid Card to consumers. The
nature and extent of Company promotion efforts will be mutually agreed between
the parties, but at a minimum, shall include, but not be limited to the
prominent display of the AT&T Branded Prepaid Card vending machine graphics and
point-of-purchase material where appropriate, at Company's sole discretion.
2.2 Except as specifically provided in this Agreement, Company shall be
responsible for the expenses and obligations it incurs in promoting AT&T Branded
Prepaid Card.
2.3 Company will obtain AT&T's prior written approval for any materials it
intends to use to promote AT&T Branded Prepaid Card such approval shall not be
unreasonably withheld.
2.4 Company will not make any representations or warranties relating to
AT&T Branded Prepaid Card, except as expressly permitted by AT&T in writing, or
as stated in the Tariff(s) or in current AT&T literature provided to Company by
AT&T.
2.5 Company shall refrain from using AT&T's name or holding itself out as
an authorized distributor, dealer, wholesaler or similar concept for AT&T.
2.6 For the Term of this Agreement, Company agrees that it will not sell,
promote or endorse any non-AT&T prepaid calling card in its vending machines
that include the AT&T Branded Prepaid Card graphics.
3. AT&T'S RESPONSIBILITIES:
3.1 AT&T agrees to provide to Company, for joint marketing purposes and
subject to the terms and conditions of this Agreement and the Tariffs, the
Redemption Options listed in Attachment B to this Agreement, to be paid for
using Co-Marketing Fund dollars earned by Company under the Contract Tariff.
3.2 AT&T will provide at least one toll free number for Company members to
call to request information and/or order Service.
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3. INDEPENDENT CONTRACTOR
The parties to this Agreement are independent contractors. Neither party will
have the authority to act for and or bind the other in any way, or to represent
that either is responsible for the acts of the other. Nothing in this Agreement
shall be construed as forming a partnership, joint venture, agency, employment,
franchise, distributorship or dealership relationship between the parties.
4. CONFIDENTIALITY
Company shall not disclose the terms or conditions of this Agreement to any
third party other than a Company member, nor issue any public statements
relating to this Agreement, without the written consent of AT&T, unless such
disclosure or statement is reasonably believed by Company to be compelled by
governmental authority. Company shall furnish reasonable prior notice to AT&T
before making the statement or disclosure. In addition, Company agrees (i) to
hold in confidence all information consisting of names and any long distance
usage information of Company members who subscribe to the Service in connection
with this Agreement ("AT&T/Company Information"), which information is
confidential or proprietary to AT&T, (ii) to use AT&T / Company Information
solely for the purpose of performing Company's obligations under this Agreement,
(iii) to reproduce AT&T / Company Information only to the extent necessary for
such purpose, (iv) to restrict disclosure of AT&T / Company Information to its
officers and employees with a need to know and to inform such officers and
employees of Company's obligations under this Agreement, and (v) not to disclose
AT&T / Company Information to any third party (including other Company
Retailers) without the prior written approval of AT&T.
5. TRADE NAMES, TRADEMARKS, SERVICE MARKS AND REGISTERED MARKS
No party shall use another party's trade names, trademarks or service marks
("Marks") without the prior written approval of the party owning the Marks. No
party shall display or use another's Marks, nor permit the same to be displayed
or used by third parties, except in connection with the performance of this
Agreement or as otherwise expressly permitted in writing. Nothing in this
Agreement creates in a party rights in the Marks of another party. Upon
termination of this Agreement, each party shall discontinue the use of the
others Marks.
Nothing in this Agreement shall give Company the right to offer any promotional
materials provided pursuant to this Agreement to any third parties.
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6. TERM; AUTOMATIC RENEWAL; TERMINATION
6.1 The term of this Agreement shall be for 2 years (24 months) commencing
on the Customer's Initial Order Date (CIOD) which shall be the date of the
Customer's first xxxx, unless otherwise modified or terminated as provided for
in this Agreement.
6.2 This Agreement may be terminated as follows:
6.2.1 AT&T may immediately terminate this Agreement as to itself and
the Company by written notice without liability if Company is not eligible
under the Tariff(s).
6.2.2 Any party may immediately terminate this Agreement by written
notice, if the other party breaches a material provision of this Agreement
or the Tariff(s).
6.3 The term of this Agreement may otherwise be modified only in writing
signed by all affected parties.
6.4 Upon expiration or termination of this Agreement, each party shall,
within sixty (60) days, return to the other party, or, if agreed to by the other
party, destroy all promotional materials and all Information supplied by the
other party hereunder, and shall immediately cease holding itself out, in any
manner, as a participant in the program contemplated by this Agreement.
Termination or expiration of this Agreement shall not relieve the parties of any
obligations due at the time of such termination or expiration, nor shall such
termination or expiration prejudice any claim of either party accrued on account
of any default or breach by the other.
7. INDEMNIFICATION
Each party shall indemnify, defend, and hold harmless the other and its
directors, officers, employees, agents, parent, subsidiaries, successors, and
assigns from and against any and all liabilities, claims, suits, actions,
demands, settlements, losses, judgments, costs, damages and expenses (including
reasonable attorneys' fees) arising out of or resulting from, in whole or in
pan, the acts or omissions of the indemnifying party, its employees, agents or
contractors and the indemnifying party's Company companies and their employees,
agents or contractors.
8. LIMITATION OF LIABILITY
8.1 EXCEPT FOR VIOLATIONS OF MARKS (SECTION 5), VIOLATIONS OF
CONFIDENTIALITY (SECTION 4), OR UNAUTHORIZED REPRESENTATIONS OR WARRANTIES,
NEITHER PARTY NOR ITS SUPPLIERS, SUBCONTRACTORS,
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AFFILIATES, SUBSIDIARIES, OR PARENT CORPORATION SHALL BE LIABLE FOR: ANY
INDIRECT, INCIDENTAL, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT; OR DAMAGES
DUE TO CAUSES BEYOND THE REASONABLE CONTROL OF THE PARTY TO BE CHARGED, OR
ATTRIBUTABLE TO ANY ACTS OR OMISSIONS OF ANY PERSON OTHER THAN THE PARTY TO BE
CHARGED.
8.2 AT&T SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT TO COMPANY ARISING
OUT OF AT&T'S REFUSAL, INABILITY OR FAILURE TO PROVIDE PREPAID CARD SERVICE TO
COMPANY OR THE DISCONTINUATION OF SUCH SERVICE. AT&T'S OBLIGATIONS AND
LIABILITIES RELATING TO PROVISION OF SERVICE ARE GOVERNED BY AT&T'S F.C.C.
TARIFFS.
8.3 THE LIMITATIONS OF LIABILITY SET FORTH 1N THIS SECTION 8 SHALL APPLY
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT; WHETHER OR NOT THE PARTY
TO BE CHARGED HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; REGARDLESS OF
THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND) OR OTHERWISE; AND WHETHER
OR NOT SUCH DAMAGES WERE FORESEEABLE.
8.4 THIS AGREEMENT DOES NOT PROVIDE THIRD PARTIES (INCLUDING WITHOUT
LIMITATION, COMPANY MEMBERS) WITH ANY REMEDY, CLAIM LIABILITY, REIMBURSEMENT,
CAUSE OF ACTION OR OTHER RIGHT OR PRIVILEGE.
9. ASSIGNMENT
No party may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party, except that AT&T may
assign this Agreement to its parent, any subsidiary or any affiliate.
10. SEVERABILITY, MODIFICATION
If any portion of this Agreement shall be found to be invalid or unenforceable,
such portion shall be void and of no effect, but the remainder of the Agreement
shall continue in full force and effect unless the Agreement fails of its
essential purpose without the voided portion. This Agreement may be modified
only by a writing signed by all parties.
11. CHOICE OF LAW
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THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND ALL
TRANSACTIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCLUDING ITS CHOICE OF LAW RULES.
12. LIMITATIONS OF ACTIONS; WAIVER
Any legal action arising from or in connection with this Agreement must be
brought within two years after the cause of action arises. Otherwise, the
failure of a party to enforce any right under this Agreement shall not
constitute a continuing waiver of any such right.
13. DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement or its breach and the
dispute cannot be settled through negotiation, the parties agree to submit the
dispute to a sole mediator selected by the parties or, at any time at the option
of a party, to mediation by the American Arbitration Association ("AAA"). If not
thus resolved, it shall be referred to a sole arbitrator selected by the parties
within thirty (30) days of the mediation or, in the absence of such selection,
to AA arbitration Which shall be governed by the United States Arbitration Act.
The award shall be made within six (6) months of selection of the arbitrator and
may be entered in any court having jurisdiction. The mediation and arbitration
shall be held in New York City. The arbitrator shall determine issues of
arbitrability but may not limit, expand or otherwise modify the terms of the
Agreement nor have authority to award punitive or other damages in excess of
compensatory damages and each party irrevocably waives any claim thereto. Each
party shall bear its own expenses but those related to the compensation of the
mediator and arbitrator shall be borne equally. The parties, their
representatives, other participants and the mediator and arbitrator shall hold
the existence, content and result of mediation and arbitration in confidence.
Invalidity or unenforceability of any part of this Agreement shall not affect
the remainder thereof.
14. FORCE MAJEURE
Neither party shall be liable for any failure to perform due to unforeseen
circumstances or causes beyond the party's reasonable control, including, but
not limited to, acts of God, war, riot, embargoes, acts of civil or military
authorities, fire, flood, accident, strikes, inability to secure transportation,
facilities, fuel, energy, labor or materials, or communication line failure not
the fault of the affected party. Time for performance shall be extended by the
amount of any such delay.
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15. SURVIVAL
The obligations of the parties under this Agreement that by their nature would
continue beyond expiration, termination or cancellation of this Agreement
(including without limitation Sections 4, 7 and 8) shall survive any such
expiration, termination or cancellation, for whatever reason.
16. NOTICES
All notices under this Agreement shall be in writing addressed as follows:
To AT&T: To Company:
Division Manager Vice President
AT&T PrePaid Card Services DataWave Services (US) Inc.
000 Xx. Xxxxxx Xxx. 000 Xxxx Xxxxxxx
Xxxx X000 Pompton Plains, NJ
Xxxxxxxxxx, XX 00000 XXX 07444
with a copy to:
AT&T Law Division Xxxxx Xxxxxx
General Attorney-CSB Datawave Systems Inc.
000 Xxxxx Xxxxx Xxxxxx 101 West 0/xx /Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxxxxxxxx, XX, Xxxxxx X0X 0X0
Each party may, by written notice, change the address to which its notices are
to be sent.
17. SECTION HEADINGS
The Section headings are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Agreement.
18. REPRESENTATIONS, WARRANTIES, AND UNDERTAKINGS
18.1 AT&T hereby warrants and represents that, during the Contract
Period:
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18.1.1 AT&T possesses the necessary, corporate authority to enter
into this Agreement and to execute its obligations hereunder, and, to AT&T's
knowledge, no governmental, judicial or third-party approvals, consents or
waivers are required for the performance by AT&T of its obligations hereunder,
except for any filings with the Federal Communications Commission that may be
required in connection with AT&T's provision of AT&T Prepaid Calling Card
Service.
18.1.2 The execution of this Agreement, the consummation of the
transactions contemplated hereunder and the performance by AT&T of this
Agreement in accordance with its terms and conditions will not conflict with or
result in the breach or violation of any terms or conditions of, or constitute
(and with notice or lapse of time or both would not constitute) a default under:
(A) the Certificate of Incorporation, by-laws or other constituent documents of
AT&T, (B) any instrument, contract or other agreement to which AT&T is a party
or by or to which it or its assets or properties are bound or subject, or (C)
any statute or any regulation, order, judgment or decree of any court or
governmental or regulatory body.
18.1.3 AT&T has the power and is authorized to grant the rights and
licenses granted to Company hereunder.
18.1.4 The use of the AT&T Marks in the United States pursuant to the
terms of this Agreement does not infringe any United States trademark of any
third party.
18.2 Company hereby warrants and represents that, during the Contract
Period:
18.2.1 Company possesses the necessary corporate authority to enter
into this Agreement and to execute its obligations hereunder, and, to Company's
knowledge, no governmental, judicial or third-party approvals, consents or
waivers are required for the performance by Company of its obligations
hereunder.
18.2.2 The execution of this Agreement, the consummation of the
transactions contemplated hereunder and the performance by Company of this
Agreement in accordance with its terms and conditions will not (1) conflict with
or result in the breach or violation of any terms or conditions of, or
constitute (and with notice or lapse of time or both would not constitute) a
default under: (A) the Certificate of Incorporation, by-laws or other
constituent documents of Company, 03) any instrument, contract or other
agreement to which Company is a party or by or to which it or its assets or
properties are bound or subject, or (C) any statute or any regulation, order,
judgment or decree of any court or governmental or regulatory body, or (2)
violate, infringe or misappropriate any other right of any third party.
18.2.3 Company has the power and is authorized to grant the rights
and licenses granted to AT&T hereunder.
18.3 The parties recognize that AT&T Prepaid Card Service may be subject
to
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regulation by the Federal Communications Commission and/or state regulatory
agencies. If any applicable regulation, whether now existing or hereafter
enacted, requires a modification of this Agreement or the waiver of any right
hereunder in order to market and offer the Cards as contemplated hereunder, the
parties agree to take such reasonable actions as are required under the
circumstances in order to accomplish the purposes of this Agreement. Each parry
shall comply with all requirements of applicable laws, ordinances,
administrative rules and regulations in the performance of this Agreement, and
shall take prompt action to remove or remedy any violation that occurs or is
discovered during the Contract Period.
19. ENTIRE AGREEMENT
The preamble to this Agreement is hereby incorporated and by this reference
shall hereby become part of this Agreement as if set forth herein word for word.
To the extent not inconsistent with any AT&T state or federal tariff, this
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior written or oral agreements,
proposals or understandings.
AT&T and Company, acting through their duly authorized representatives, hereby
agree to the terms set forth in this Agreement as of the date first above
written.
DATAWAVE SYSTEMS INC AT&T CORP.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxx
_________________________ ___________________________
Xxxxx Xxxxxx Xxxx X. Xxxxx
_______________________________ _________________________________
Printed or Typed Name Printed or Typed Name
President Director of PrePaid Card
_______________________________ _________________________________
Title Title
29 January 1999 January 30, 1998
_______________________________ _________________________________
Date Date
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