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EXHIBIT 10.15
AGENT AGREEMENT
THIS AGENT AGREEMENT (this "Agreement"), made this 13th day of March,
1996, by and between Target Marketing Systems, Inc., a Georgia corporation
having its principal place of business at 3525 Piedmont Road, Six Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("TMS"), and EduTrek Systems, Inc.,
a Georgia corporation having its principal place of business at One Buckhead
Plaza, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 ("AGENT"),
W I T N E S S E T H:
WHEREAS, Target Marketing International, Inc., a Georgia corporation
("TMI") is the owner of certain proprietary materials; and
WHEREAS, TMS has represented to AGENT that it is the exclusive North
American agent of TMI and desires to increase the sales of such materials; and
WHEREAS, AGENT desires to market, sell and otherwise distribute such
materials and conduct certain training and other services related to such
materials; and
WHEREAS, TMS is willing to appoint AGENT and AGENT is willing to accept
such appointment as TMS's agent upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following words, terms and phrases
shall have the meanings assigned to them in this Article 1 unless the context
otherwise requires:
1.1 Affiliate. "Affiliate" shall mean any Person or entity that
directly or indirectly controls or is controlled by, or is under common control
with, such Person. As used in this definition of "Affiliate," the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity whether through ownership
of voting securities, by contract or otherwise.
1.2 Agent's Customers. "Agent's Customers" shall mean the customers of
Agent within the "Agent's Protected Industries" or part of the "Protected
Accounts" of Agent as set forth
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on Exhibit A, attached hereto and made a part hereof, as amended from time to
time as contemplated therein.
1.3 Agent Information. "Agent Information" shall mean all information
which is directly or indirectly disclosed to TMS regardless of the form in which
it is disclosed or whether such information was or is disclosed prior to, on or
after the date of this Agreement, relating in any way to AGENT's markets,
customers, materials, patents, inventions, procedures, methods, designs,
strategies, plans, assets, liabilities, costs, revenues, profits, organization,
employees, agents, distributors or business in general. Agent Information shall
not include information (a) already or subsequently in the public domain through
no breach of this Agreement, (b) TMS can demonstrate was within its possession
prior to the time of disclosure by TMS, (c) developed independently by TMS
(and/or a third party) without any reliance upon confidential proprietary
information of AGENT disclosed hereunder, (d) disclosed under requirement of
law, after notice to AGENT, (e) which TMS, after due inquiry, receives or
acquires from a third party without restriction as to use or (f) expressly
designated by AGENT as non-confidential.
1.4 Recommended Customer Price List. "Recommended Customer Price List"
shall mean the current list of prices that TMS publishes as set forth on Exhibit
B, attached hereto and made a part hereof, as amended from time to time.
1.5 Person. "Person" shall mean any natural person, corporation,
general or limited partnership, limited liability company, joint venture, trust,
association, unincorporated entity of any kind or a government or any department
or agency thereof.
1.6 Materials. "Materials" shall mean those materials owned by TMI and
described on Exhibit C, attached hereto and made a part hereof, as that exhibit
may be amended from time to time by mutual agreement of the parties, and all
enhancements, improvements and other alterations thereto, including, without
limitation, the addition of New Materials (as defined below) pursuant to Section
2.2 hereof.
1.7 Quota. "Quota" shall mean the minimum xxxxxxxx for Materials and
the Agent's Services which AGENT shall be required to sell in accordance with
the terms and conditions of Article 6 of this Agreement.
1.8 TMS Information. "TMS Information" shall mean all information which
is directly or indirectly disclosed to AGENT or embodied in the Materials
provided hereunder, regardless of the form in which it is disclosed or whether
such information was or is disclosed prior to, on or after the date of this
Agreement, relating in any way to TMS's markets, customers, materials, patents,
inventions, procedures, methods, designs, strategies, plans, assets,
liabilities, costs, revenues, profits, organization, employees, agents,
distributors or business in general. TMS Information shall not include
information (a) already or subsequently in the public domain through no breach
of this Agreement, (b) AGENT can demonstrate was within its possession prior to
the time of disclosure by AGENT, (c) developed independently by AGENT (and/or a
third party) without any reliance upon confidential proprietary information of
TMS disclosed hereunder, (d)
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disclosed under requirement of law, after notice to TMS, (e) which AGENT, after
due inquiry, receives or acquires from a third party without restriction as to
use or (f) expressly designated by TMS as non-confidential.
1.9 Term. "Term" shall mean the term of this Agreement pursuant to
Section 12.1 hereof.
1.10 Territory. "Territory" shall mean the geographical areas
specifically described in Exhibit D, attached hereto and made a part hereof, as
that exhibit may be amended from time to time by mutual agreement of the
parties.
ARTICLE 2
APPOINTMENT AND ACCEPTANCE
2.1 Scope. TMS hereby appoints AGENT, and AGENT hereby accepts
appointment, as TMS's agent during the Term with the exclusive right to market,
sell and otherwise distribute the Materials in the Territory to Agent's
Customers and conduct training seminars and other related services as set forth
on Exhibit E, attached hereto and made a part hereof, as amended from time to
time (the "Agent's Services"), using TMS's name, logos, service marks,
trademarks and other similar intellectual property, subject to the terms and
conditions of this Agreement.
2.2 New Materials. TMS and AGENT hereby covenant and agree that, in
connection with new materials or other products of TMS which are similar in
nature to the Materials, but not merely enhancements, improvements or
alterations thereto (the "New Materials"), TMS shall notify AGENT of their
availability and, upon the request of AGENT, shall appoint AGENT as TMS's agent
during the Term with the exclusive right to sell or otherwise distribute the New
Materials in the Territory to Agent's Customers, using TMS's name, logos,
service marks, trademarks and other similar intellectual property, subject to
all the terms and conditions of this Agreement. "Materials" shall be deemed to
include any "New Materials" for which AGENT receives the exclusive right to sell
or otherwise distribute in accordance with this Section 2.2.
2.3 Representatives. TMS acknowledges and agrees that AGENT may
directly or indirectly fulfill its duties and obligations hereunder through its
employees, Affiliates, agents and other representatives; provided, however, that
any such representative, other than an employee of AGENT, must be approved by
TMS, which approval shall not be unreasonably withheld or delayed.
2.4 Warranty and Indemnification. Each party to this Agreement
warrants and represents that it is free to enter into and fully perform this
Agreement, and neither party hereto has entered into another agreement, its
obligations under which would conflict with its performance under this
Agreement. Each party hereto shall indemnify and hold the other, its successors
and permitted assigns and the officers, directors, employees and agents of each
of them harmless, from and against any and all claims, damages, liabilities,
costs and expenses of any kind, including, without limitation, reasonable
attorneys' fees and expenses, arising out of the breach by the indemnifying
party of any representation, warranty or other term or provision of this
Agreement.
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The warranties, representations and indemnification obligations herein shall
survive the expiration or termination of this Agreement.
2.5 Instructors. AGENT acknowledges and agrees that the Materials may
only be distributed for use in training seminars that are conducted by an
instructor that is certified by TMS pursuant to an Instructor Agreement,
substantially in the form attached hereto as Exhibit F and made a part hereof.
AGENT may not train or certify any Person as an instructor in the use of the
Materials or the conduct of the Agent's Services, unless specifically authorized
in writing by TMS.
ARTICLE 3
GENERAL OBLIGATIONS OF AGENT
3.1 Marketing. AGENT shall have the following obligations with
respect to the marketing, sales and distribution of the Materials and delivery
of the Agent's Services:
(a) To use its reasonable best efforts to further the marketing, sale
and other distribution of the Materials and delivery of the
Agent's Services in the Territory to the Agent's Customers;
(b) To represent TMS in a professional and ethical manner, as
described in TMS's published Code of Professional Conduct, a copy
of which is attached hereto as Exhibit G and made a part hereof
(the "Code of Professional Conduct");
(c) To market and promote the Materials and the Agent's Services in a
manner consistent with TMS's standard marketing practices;
(d) To enter into TMS's standard customer contract (or a written
approved alternative) with all of the Agent's Customers placing
orders for the Materials and the Agent's Services, which standard
contract forms shall be provided by TMS in reasonable quantities
to AGENT upon AGENT's request at no expense to AGENT; and
(e) To provide to TMS a copy of the roster listing each of the
Agent's Customers and the number of participants in each Agent's
Customer's program conducted by AGENT using the Materials and,
within seven business days of the completion of such training
program, an original of a program evaluation, in a form mutually
agreeable to TMS and AGENT from time to time, of each participant
in such training program which complies with AGENT's request to
complete such evaluation (the "Program Evaluations").
3.2 Marketing or Distribution of Competitive Materials or Services.
AGENT shall not market or distribute in the Territory any materials or services
which infringe upon TMS processes, tools or intellectual property or which are
substantially similar to TMS processes, tools
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or intellectual property during the Term without prior written consent of TMS.
In addition, AGENT shall not market or sell in the Territory any competitive
products (i) the content of which can be substituted for the Materials or the
Agent's Services or (ii) which are developed, marketed and distributed by the
companies listed on Exhibit H during the Term and for a one-year period after
the termination of this Agreement, unless such termination is caused by the
bankruptcy of TMS or a material breach of this Agreement by TMS, as provided for
in Section 12.2.
3.3 Expenses. Unless otherwise expressly stated to the contrary
herein, AGENT assumes full responsibility for all costs, fees and other expenses
which it incurs in carrying out its obligations under this Agreement, including
but not limited to all business license, advertising, demonstration, travel and
accommodation expenses, without the right to reimbursement for any portion
thereof from TMS.
ARTICLE 4
GENERAL OBLIGATIONS OF TMS
4.1 Provision, Enhancement, Support and Development of Materials. TMS
will provide adequate supplies of the Materials to AGENT pursuant to the terms
and conditions of this Agreement, and TMS will use its reasonable best efforts
to enhance and support the Materials, and/or to develop New Materials, so that
TMS's products are and remain competitive in the marketplace. For purposes of
this Agreement, TMS and AGENT acknowledge and agree that TMS's failure to supply
the Materials to AGENT pursuant to the terms and conditions of this Agreement
would constitute a material breach of this Agreement by TMS.
4.2 Customization of Materials. Upon the reasonable request of AGENT,
TMS will provide certain customization services in connection with the Materials
pursuant to customer specifications, for which services TMS will be reimbursed
in full, based upon the reasonable cost of all time and materials necessary to
perform such services, as approved by the parties in advance.
4.3 Sales Support. TMS will provide AGENT with marketing, sales and
distribution support, at no cost to AGENT, in the manner provided to TMS's other
agents, including, without limitation, the provision of reasonable, ongoing
quantities of TMS's sales brochures, pamphlets and other collateral materials.
In addition, TMS will use its reasonable best efforts to provide AGENT with
customized marketing, sales and distribution support relating to Agent's
Customers at the hourly rate reflected on the Recommended Customer Price List.
4.4 Sales Training. Upon reasonable request of AGENT, TMS will
provide to AGENT and its employees, agents and other representatives training in
connection with the sale and other distribution of the Materials and the Agent's
Services at no cost to AGENT.
4.5 Qualified Leads. TMS will provide qualified leads developed or
received by TMS to AGENT for accounts in the Agent's Protected Industries (as
defined below), at no cost to AGENT.
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4.6 Protection of Materials. TMS will diligently protect the goodwill
and commercial reputation of the Materials and, in furtherance thereof, will use
its reasonable best efforts to cause its employees, agents and other
distributors to adhere to the Code of Professional Conduct.
4.7 Program Evaluation Summaries. TMS will provide AGENT with
written summaries of the Program Evaluations within 21 days of receipt of such
Program Evaluations from AGENT pursuant to Section 3.1.
ARTICLE 5
ORDERS FOR MATERIALS
5.1 Orders. AGENT shall submit orders for Materials by Agent's
Customers to TMS in writing by mail, confirmed facsimile transmission or express
courier in accordance with TMS's standard ordering processes. AGENT shall ensure
that orders relating to Agent's Customers are received by TMS at least ten days
prior to the delivery dates requested in such orders, and TMS shall ensure
delivery of the ordered Materials upon the requested delivery dates.
5.2 Delivery Terms. All delivery charges relating to the Materials
shall be invoiced to Agent's Customers.
5.3 Modification of Orders. AGENT may request in writing, and TMS
shall acknowledge, changes in orders placed with TMS if such changes are
received by TMS no later than two days prior to the requested delivery dates in
the case of a decrease in ordered Materials and no fewer than five days in all
other cases. Except as set forth in the foregoing sentence, no order shall be
modified or canceled except upon the mutual agreement of the parties. AGENT's
change orders shall be subject to all provisions of this Agreement, whether or
not such change orders so state.
5.4 Changes to Materials. TMS reserves the right, in its reasonable
discretion, to:
(a) Alter the form of any of the Materials; or
(b) Commence the production and sale of New Materials.
Notwithstanding the above, TMS shall use its reasonable best efforts to provide
AGENT with prompt, written notice of such decisions and shall fill all orders
from AGENT for any such altered or discontinued Materials, deliveries of which
have been commenced.
5.5 Sales Activities Reports. AGENT agrees to use its reasonable
good faith efforts to provide TMS with a written forecast of monthly sales of
the Materials and the Agent's Services for the subsequent three-month period in
a mutually agreed upon format within 15 business days after the end of each
month during the Term; provided, however, that TMS acknowledges and
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agrees that such forecasts are only AGENT's estimate of such monthly sales and
that AGENT does not represent or warrant as to the accuracy of such forecasts.
ARTICLE 6
MINIMUM SALES REQUIREMENT
The first six months of the Term will be AGENT's start up phase (the
"Initial Phase"), and AGENT will not be required to meet a Quota. After the
Initial Phase, AGENT will be required to meet the following Quotas:
(a) For the first 12-month period after the Initial Phase,
$3,000,000 in total xxxxxxxx to Agent's Customers based upon
annualized, quarterly xxxxxxxx during the final quarter of
such 12-month period (the "Initial Quota");
(b) For the second 12-month period after the Initial Phase,
$4,500,000 in total xxxxxxxx to Agent's Customers based upon
annualized, quarterly xxxxxxxx during the final quarter of
such 12-month period or actual xxxxxxxx during such 12-month
period; and
(c) For subsequent periods, such amount as may be mutually agreed
upon by the parties following the second 12-month period.
If TMS and AGENT cannot agree upon a Quota for subsequent periods, as provided
in (c) above, then the Quota for the subsequent five 12-month periods of the
Term shall be no more than $5,400,000, unless otherwise mutually agreed. If (a)
AGENT does not fulfill its Quota during any given 12-month period, or (b) AGENT
does not have, as of September 30, 1996, a minimum of five representatives to
market and sell the Materials and the Agent's Services related to the "Target
Account Selling" program described in Section B of Exhibit B, at least three of
which are certified to deliver such program, then, upon 90 days written notice
to AGENT from TMS, unless AGENT shall have cured any such failure within such
90-day period, AGENT will no longer have the exclusive right to market and
distribute the Materials and the Agent's Services to the Agent's Protected
Industries, and thereafter all customer accounts of AGENT within the Agent's
Protected Industries shall be treated as Protected Accounts (as defined in
Exhibit A).
ARTICLE 7
PRICES AND COMMISSIONS
7.1 Prices. The prices recommended by TMS to be charged for the
Materials and the Agent's Services purchased pursuant to this Agreement shall be
the applicable price reflected on the Recommended Customer Price List. AGENT,
however, will set, in its discretion, the prices to be charged to Agent's
Customers for the Materials and the Agent's Services. TMS's recommended prices
for the Materials and the Agent's Services as reflected on the Recommended
Customer Price List shall not exceed the prices offered by TMS to others for the
Materials and similar services. If while this Agreement is in effect, TMS offers
lower prices for the Materials and similar services,
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then the Recommended Customer Price List will be amended to reflect such lower
prices as of the date such prices were offered to other similarly situated
agents of TMS.
7.2 Commissions. In consideration of the Agent's Services pursuant
to this Agreement, AGENT will earn the following commissions for xxxxxxxx in
connection with the sale of the Materials and the Agent's Services:
(a) For the first 12 months of the Term (or until AGENT reaches
the Initial Quota, whichever occurs first), TMS will be
responsible for invoicing and receiving payments from Agent's
Customers for the TMS products and services described in
Exhibit B and will pay to AGENT the following sums within five
business days of receipt by TMS of such sums from Agent's
Customers:
(i) 75% of all receipts from $0-$2,999,999;
(ii) 80% of all receipts from $3,000,000-$5,999,999; and
(iii) 85% of all receipts from $6,000,000 and above.
In addition, during the time period that TMS is responsible
for invoicing and receiving payments from Agent's Customers,
AGENT will be responsible for collection efforts required in
connection with all xxxxxxxx to Agent's Customers.
Accordingly, TMS will forward to AGENT copies of all invoices
and other records relating to Agent's Customers required by
AGENT in connection with its collection efforts.
(b) After the first 12 months of the Term, pending the agreement
of TMS, which shall not be unreasonably withheld, for the
balance of the Term, AGENT will be responsible for
invoicing, receiving and collecting all xxxxxxxx to Agent's
Customers. For purposes of this subsection (b), TMS and
AGENT agree that it would be unreasonable for TMS to
withhold its agreement if AGENT has fulfilled the Initial
Quota and, accordingly, that it would be reasonable for TMS
to withhold its agreement if AGENT has not fulfilled the
Initial Quota. Notwithstanding anything to the contrary
contained herein, if AGENT fulfills the Initial Quota prior
to the expiration of the first 12 months of the Term, then
AGENT will be responsible for invoicing, receiving and
collecting all xxxxxxxx to Agent's Customers at such time.
AGENT will retain its commission from such collections and
will pay to TMS the following sums within five business days
of receipt by AGENT of such sums from Agent's Customers:
(i) 25% of all receipts from $0-$2,999,999;
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(ii) 20% of all receipts from $3,000,000-$5,999,999; and
(iii) 15% of all receipts from $6,000,000 and above.
Notwithstanding anything to the contrary contained herein, AGENT shall retain at
all times during the Term, 100% of all xxxxxxxx to Agent's Customers which
relate to any customized consulting services provided by AGENT (the "Non-TMS
Matters"), and AGENT shall be responsible, at all times during the Term, for
invoicing, receiving and collecting all xxxxxxxx to the Agent's Customers for
any Non-TMS Matters.
7.3 Collections. AGENT will make commercially reasonable efforts
to collect xxxxxxxx from Agent's Customers. AGENT shall not be obligated to use
any extraordinary efforts to collect any of such xxxxxxxx. AGENT shall not incur
liability to TMS or any other Person for any uncollected xxxxxxxx, unless AGENT
shall have engaged in willful misconduct or gross negligence in the collection
of such xxxxxxxx. So long as AGENT is performing such collection services, TMS
will not make any direct solicitation of Agent's Customers for collection
purposes.
7.4 Instructor Training Fees. AGENT will pay TMS a $7,500 per
Person fee, with the first Person being free (the "Training Fee"), for leader
certification training of AGENT's employees, Affiliates, agents and other
representatives as instructors certified to conduct the Agent's Services related
to the Materials. During any period during the Term that TMS is responsible for
the invoicing and collection of xxxxxxxx pursuant to Section 7.2, TMS shall not
invoice AGENT for any Training Fees due TMS hereunder, but shall deduct such
Training Fees from TMS's payments to AGENT of its commissions pursuant to
Section 7.2, which deductions shall be made at the end of the third month
following the accrual of such Training Fees. During each 12-month period that
AGENT meets its Quota as set forth in Section 6, TMS will refund to AGENT any
Training Fees paid to TMS during such 12-month period.
ARTICLE 8
LIMITATION OF WARRANTY AND LIABILITY
BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE MATERIALS, BY THEIR NATURE,
CANNOT BE WARRANTED AS TO EFFECTIVENESS. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT
IN NO EVENT SHALL THE OTHER PARTY'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF SUCH PARTY
SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
ARTICLE 9
CONFIDENTIALITY
AGENT acknowledges and agrees that TMS Information is confidential and
proprietary to TMS. AGENT agrees not to use any TMS Information for any purposes
other than as permitted or required for performance by AGENT hereunder. AGENT
further agrees not to
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disclose or provide any TMS Information to any third party and to take
all commercially reasonable measures to prevent any such disclosure by its
employees, agents, contractors or consultants. TMS acknowledges and agrees that
Agent Information is confidential and proprietary to AGENT. TMS agrees not to
use any Agent Information for any purposes other than as permitted or required
for performance by TMS hereunder. TMS further agrees not to disclose or provide
any Agent Information to any third party and to take all commercially reasonable
measures to prevent any such disclosure by its employees, agents, contractors or
consultants. TMS Information and Agent Information that does not constitute a
trade secret, as defined under applicable law, shall not be considered
confidential and proprietary information for purposes of this Agreement after
one year from the date of the termination of this Agreement. The obligations of
AGENT and TMS with regard to TMS Information and Agent Information,
respectively, that constitutes a trade secret, as defined under applicable law,
shall survive the termination of this Agreement.
ARTICLE 10
TRADEMARKS AND COPYRIGHTED MATERIALS
10.1 Property Rights of TMS. TMS represents and warrants that (a)
it is the exclusive North American agent of TMI with regard to the Materials and
all related intellectual property rights, (b) TMI is the exclusive owner of the
Materials, (c) TMI possesses all copyright, trade secret and other similar
property rights in the Materials, (d) TMS has all necessary rights to grant the
rights and license granted to AGENT in Section 10.2 and (e) TMS will use its
reasonable best efforts to protect TMS's and TMI's trademarks and copyrighted
materials relating to the Materials.
10.2 Use of Trademarks and Copyrighted Materials of TMS. TMS hereby
grants to AGENT a non-exclusive, non-transferable, and royalty-free right and
license to use TMS's and TMI's trademarks and copyrighted materials (the "TMS
Intellectual Property") that are specified in Exhibit I attached hereto and made
a part hereof, as such exhibit may be modified from time to time during the Term
by mutual agreement of the parties, in connection with the marketing, sale and
other distribution, promotion and advertising of the Materials for so long as
such trademarks and copyrighted materials are used by AGENT in accordance with
the terms and conditions of this Agreement and the Standard Marketing Practices,
but in no event beyond the Term. AGENT shall afford TMS, upon prior notice to
AGENT by TMS and without interfering with AGENT's business, reasonable
opportunities during the Term to inspect the activities of AGENT in order to
ensure that AGENT's use of the trademarks and copyrighted materials is in
accordance with the terms and conditions of this Agreement and the Standard
Marketing Practices. AGENT shall acquire no right, title or interest in TMS's or
TMI's trademarks or copyrighted materials other than the foregoing limited
license, and AGENT shall at all times recognize TMS's and TMI's right to total
ownership of any and all trademarks and copyrighted materials in connection with
the Materials. AGENT shall not use any of TMS's or TMI's trademarks or
copyrighted materials as part of AGENT's corporate or trade name or permit any
third party to do so without the prior written consent of TMS.
10.3 Indemnification. TMS agrees to indemnify and hold AGENT and
its successors and permitted assigns and the officers, directors, employees and
agents of each of them
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harmless from and against any and all claims, damages, liabilities, costs and
expenses of any kind, including, without limitation, reasonable attorneys' fees
and expenses, in connection with or relating to any claim that the Materials
infringe a copyright, trade secret or similar proprietary right of a third
party. If any such claim is asserted, or in TMS's reasonable judgment is likely
to be asserted, with respect to any of the Materials, AGENT agrees to allow TMS,
at TMS's reasonable option, to (a) procure the right for AGENT to continue to
sell such Materials or (b) replace or modify them in a functionally similar
manner so they become noninfringing. If neither of the foregoing remedies is
available on terms that are reasonable in TMS's judgment, AGENT, upon written
request by TMS, shall return all copies, if any, of the Materials held by AGENT
or under AGENT's control to TMS.
10.4 Markings. AGENT shall not, without the prior written consent
of TMS, remove or alter any trade names, trademarks, notices, serial numbers,
labels or other identifying marks, symbols or legends affixed to any of the
Materials or packages containing the Materials.
10.5 Infringements. AGENT shall notify TMS as soon as practicable
of any use by any third party of TMS's trademarks or copyrighted material of
which AGENT's officers, directors, employees or agents have actual knowledge.
TMS reserves the right in its sole discretion to institute and defend any
litigation or other legal proceedings involving infringement of TMS Intellectual
Property. AGENT agrees to cooperate fully with TMS in any action taken by TMS
against such third parties; provided, however, that all expenses of AGENT
relating to or arising from such action shall be borne by TMS.
10.6 Termination of Use. Upon termination of this Agreement, AGENT
shall cease and desist from use of TMS's trademarks or unauthorized use of its
copyrighted materials in any manner.
10.7 Use of Trademarks and Copyrighted Materials of AGENT. AGENT
does not hereby grant to TMS a license or any other right to use, now or in the
future, any of AGENT's current or future trademarks or copyrighted materials,
including, without limitation, "Revenue Operating System," "Quality Revenue
Process," "Chief Revenue Officer" or "CRO."
ARTICLE 11
TAXES
11.1 AGENT's Taxes. AGENT shall be solely responsible for and shall
pay, or reimburse TMS for, all taxes, assessments and other governmental
charges, however designated, which are now or hereafter imposed under or by any
governmental authority or agency of the Territory, that are associated with the
performance by AGENT of its obligations hereunder or the payment of any amount
by TMS to AGENT pursuant to the terms and conditions of this Agreement. AGENT
shall remit promptly any and all taxes, duties, import deposits, assessments and
other governmental charges collected from TMS or Agent's Customers to the
appropriate taxing authorities.
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11.2 TMS's Taxes. TMS shall be solely responsible for and shall
pay, or reimburse AGENT for, all taxes, assessments and other governmental
charges, however designated, which are now or hereafter imposed under or by any
governmental authority or agency, that are associated with the performance by
TMS of its obligations hereunder or the payment of any amount by AGENT to TMS
pursuant to the terms and conditions of this Agreement. TMS shall remit promptly
any and all taxes, duties, import deposits, assessments and other governmental
charges collected from AGENT or Agent's Customers to the appropriate taxing
authorities.
11.3 Agent's Customers' Taxes. Any and all taxes, duties, import
deposits, assessments and other governmental charges, however designated, which
are now or hereafter imposed under or by any governmental authority or agency,
that are associated with the ordering of Materials on behalf of Agent's
Customers shall be invoiced to and paid by Agent's Customers.
ARTICLE 12
TERM AND TERMINATION
12.1 Term. This Agreement shall take effect with respect to each
geographical area comprising the Territory (as set forth in Exhibit D) as of the
date first above written and shall continue in force until terminated pursuant
to Section 12.2.
12.2 Termination. This Agreement may be terminated in accordance
with the following provisions:
(a) The parties hereto may terminate this Agreement upon the
mutual written agreement of the parties;
(b) Either party hereto may terminate this Agreement at any time
by giving notice in writing to the other party, which notice
shall be effective upon dispatch upon the insolvency of either
party or any action causing such party to avail itself of laws
for the protection of debtors including, without limitation,
the appointment of a receiver or the like, a complete or
partial moratorium on the payment of debt, a petition in
bankruptcy or the like filed by or against such party, or an
assignment of all or any substantial portion of the assets of
such party for the benefit of its creditors;
(c) Unless a specific alternative remedy is set forth herein for
any such material breach, either party may terminate this
Agreement by giving notice in writing to the other party in
the event that the other party is in material breach of this
Agreement and shall have failed to cure such breach within 30
days of receipt of written notice thereof from the
nonbreaching party; or
(d) This Agreement will automatically terminate and all rights and
obligations of TMS and AGENT hereunder shall cease if AGENT
enters into any transaction in the Territory with any company
listed on Exhibit H.
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12.3 Rights and Obligations on Termination. In the event of the
termination of this Agreement pursuant to Section 12.2, neither party shall be
released from the obligation to make payment of all amounts then or thereafter
due and payable pursuant to the terms and conditions of this Agreement with
respect to performance by the parties prior to the effective date of
termination.
12.4 No Compensation. If either party terminates this Agreement for
any reason in accordance with the terms and conditions hereof, the parties
hereby agree that, subject to the provisions of Section 12.3(a) hereof and
without prejudice to any other remedies which either party may have in respect
of any breach of this Agreement, neither party shall be entitled to any
compensation or like payment from the other as a result of such termination.
ARTICLE 13
FORCE MAJEURE
13.1 Definition. "Force Majeure" shall mean any event or
condition, not existing as of the date of signature of this Agreement, not
reasonably foreseeable as of such date and not reasonably within the control
of either party, which prevents in whole or in material part the performance by
one of the parties of its obligations hereunder or which renders the
performance of such obligations so difficult or costly as to make such
performance commercially unreasonable. Without limiting the foregoing, the
following shall constitute events or conditions of Force Majeure: acts of State
or other governmental action, riots, civil disturbance, war, strikes, lockouts,
slowdowns, prolonged shortage of energy supplies, epidemics, fire, flood,
hurricane, typhoon, earthquake, lightning and explosion.
13.2 Notice. Upon giving notice to the other party, a party
affected by an event of Force Majeure shall be released without any liability on
its part from the performance of its obligations under this Agreement, except
for the obligation to pay any amounts due and payable pursuant to the terms and
conditions hereof, but only to the extent and only for the period that its
performance of such obligations is prevented by the event of Force Majeure. Such
notice shall include a description of the nature of the event of Force Majeure,
and its cause and possible consequences. The party claiming Force Majeure shall
promptly notify the other party of the termination of such event.
13.3 Suspension of Performance. During the period that the
performance by one of the parties of its obligations under this Agreement has
been suspended by reason of an event of Force Majeure, the other party may
likewise suspend the performance of all or part of its obligations hereunder to
the extent that such suspension is commercially reasonable.
ARTICLE 14
MISCELLANEOUS
14.1 Governing Law. This Agreement shall be governed by, and
interpreted and construed in accordance with, the laws of the State of Georgia,
without regard to its conflict of laws provisions.
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14.2 Assignment. Neither party shall have the right to assign or
otherwise transfer its rights and obligations under this Agreement except with
the prior written consent of the other party; provided, however, either party
shall be entitled to assign any or all of its rights and obligations hereunder
to any of its Affiliates, as long as such Affiliate agrees in writing to be
fully liable for the performance of all of the assigning party's obligations
hereunder. Any dissolution, merger, consolidation or other reorganization of
either party, the sale or other transfer of all or substantially all of the
assets of either party or the sale or other transfer of a controlling percentage
of the capital stock of either party (either in one or a series of sales to the
same or related Persons), shall constitute an assignment of this Agreement for
all purposes of this Section 14.2. Any prohibited assignment shall be null and
void.
14.3 Notices. Notices permitted or required to be given hereunder
shall be deemed sufficient if pre-paid and delivered personally or by express
mail, confirmed facsimile transmission or certified mail, return receipt
requested, addressed to the respective addresses of the parties as first above
written or at such other addresses as the respective parties may designate by
like notice from time to time. Notices so given shall be effective upon (a)
receipt by the party to which notice is given or (b) on the third day following
the date such notice was mailed, whichever occurs first.
14.4 ENTIRE AGREEMENT. THIS AGREEMENT, INCLUDING EXHIBITS A THROUGH
J ATTACHED HERETO AND INCORPORATED AS AN INTEGRAL PART OF THIS AGREEMENT,
CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF, AND SUPERSEDES ALL PREVIOUS AGREEMENTS BY AND BETWEEN TMS AND
AGENT, AS WELL AS ALL PROPOSALS, ORAL OR WRITTEN, AND ALL NEGOTIATIONS,
CONVERSATIONS OR DISCUSSIONS HERETOFORE HAD BETWEEN THE PARTIES RELATED TO THIS
AGREEMENT.
14.5 Amendment. This Agreement shall not be deemed or construed to
be modified, amended, rescinded, canceled or waived, in whole or in part, except
by written amendment signed by the parties hereto.
14.6 Severability. If any of the terms of this Agreement are in
conflict with any rule of law or statutory provision or are otherwise
unenforceable under the laws or regulations of any applicable government or
subdivision thereof, such terms shall be deemed stricken from this Agreement,
but such invalidity or unenforceability shall not invalidate any of the other
terms of this Agreement, and this Agreement shall continue in force, unless the
invalidity or unenforceability of any such provisions hereof does substantial
violence to, or where the invalid or unenforceable provisions comprise an
integral part of, or are otherwise inseparable from, the remainder of this
Agreement.
14.7 Counterparts. This Agreement may be executed in one or more
counterparts, and each such counterpart shall be deemed an original hereof.
14.8 Waiver. No failure by either party to take any action or
assert any right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition
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of the circumstances giving rise to such right, and no waiver shall be construed
as a continuing waiver.
14.9 Approvals. Whenever under the provisions of this Agreement any
approval or consent is required, such approval or consent shall not be
unreasonably withheld (unless otherwise expressly provided herein) or delayed
and shall be deemed granted (a) unless the party requested to grant its approval
or consent gives written notice of its disapproval or the withholding of its
approval or consent, and the reasons therefor, within five business days after
receipt of a written request for such approval or consent or (b) unless
otherwise expressly provided.
14.10 Non-Solicitation. During the Term, the parties agree not to
solicit any employee or other representative of the other party (or any of its
Affiliates) without the written consent of such party, for a period of one year
from the date such employee, agent or other representative ends its employment
or affiliation with the other party. Neither party shall induce or recommend to
any employee or other representative of the other party that such employee or
other representative should end its employment or affiliation with the other
party. This provision shall survive the termination of this Agreement for a
period of six months.
14.11 Construction of Agreement. Both parties acknowledge and agree
that they have been represented by legal counsel in connection with the
preparation of this Agreement. Accordingly, it is the intention and agreement of
the parties that the language, terms and conditions of this Agreement are not to
be construed in any way against or in favor of any party by reason of the
responsibilities in connection with the preparation of this Agreement.
14.12 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
14.13 Access to Information. Each party hereto covenants and agrees
to allow the other party and its authorized representatives reasonable access at
such other party's expense during normal business hours to the employees and
staff of the other party and its books, accounts, records, files and other
documents relating to the Materials and the Agent's Services for the purpose of
audit and inspection, and each party will furnish or cause to be furnished all
information with respect to the Materials and the Agent's Services as the other
party may reasonably request and agrees to cooperate fully with the other party
and its representatives in connection with such audit and inspection.
14.14 Attorneys' Fees. If any litigation is initiated by either
party against the other relating to this Agreement or the subject matter hereof,
the party prevailing in such litigation shall be entitled to recover, in
addition to all damages allowed by law and other relief, all court costs and
reasonable attorneys' fees incurred in connection therewith.
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14.15 No Third-Party Beneficiaries. The parties hereto do not, by
executing this Agreement, confer any benefit upon any Person other than the
parties hereto and their permitted successors and assigns.
14.16 Relationship of the Parties. The relationship between TMS and
AGENT shall be solely as described herein. AGENT shall have no authority to act
on behalf of TMS in any manner except in the manner and to the extent set forth
herein or as TMS may expressly agree in writing. Persons retained by AGENT as
dealers, employees, representatives or agents shall not by reason thereof be
deemed to be employees or agents of TMS.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
hereby cause this Agreement to be executed on the date first above written.
TARGET MARKETING SYSTEMS, INC. EDUTREK SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxx By:/s/R. Xxxxxx Xxxxxx
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Xxxxxx Xxxxxxx, Chief Executive Officer R. Xxxxxx Xxxxxx, President
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