Promotion Agreement Between
PageMaster Corporation and Go Call, Inc.
AGREEMENT
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This Promotion Agreement (herein "Agreement") dated March 12,1999, by
and between Go Call, Inc. (herein "Go Call") located at 00 Xxxxx Xxxxxx Xxxx,
Xxxxxxxxx Xxxxxxx, Xxxxxx X0X0X0 and PageMaster Corporation located at 000 X.
Xxxxxxxx Xxxx Xxxx. Xxxxx 000, Xxxxxxxx Xxxx, XX 00000, shall set forth the
Terms and conditions pursuant to which Go Call and PageMaster Corporation shall
create a promotion as more fully described below.
WHEREAS, Go Call seeks to increase its sales and website activity; and
WHEREAS. PageMaster Corporation seeks to promote the contracting of
paging service to clients;
NOW THEREFORE, Go Call and PageMaster Corporation in consideration of
the mutual obligations set forth herein and other good and valuable
consideration, the receipt and sufficiency of which the parties
acknowledge, hereby agree as follows:
1. Description of the Promotion
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PageMaster Corporation in conjunction with Go Call, shall offer free new
Motorola "Wordline Alphanumeric" (or equal) pagers with no activation fee to all
customers responding to this promotion who purchase twelve (12) months of
numeric paging and airtime products and services from PageMaster Corporation
("Purchase Customers").
2. Consumer Cost Description
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Each Purchase Customer will be required to purchase twelve months of
local numeric airtime at a rate of $10.33 per month through a designated
nationwide airtime provider, prepaid in advance. The purchased airtime shall be
non-refundable to the consumer. Additionally, Purchase Customers will be
required to pay for shipping and handling costs and applicable sales taxes based
on their locations.
3. Term
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This promotion shall begin on June 1,1999 and shall terminate June 1,
2000 (herein "Term") This term shall be extended for a 1 year period provided
3000 pagers per month are distributed to Purchase customers.
4. Responsibilities of PageMaster Corporation
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PageMaster Corporation shall be responsible for providing the following:
a. For Purchase Customers to participate in the promotion,
PageMaster Corporation shall establish and maintain a toll-free
telephone number for this promotion beginning June 1,1999 and
continuing until September 1, 2000 unless otherwise requested by
Go Call and agreed upon by PageMaster Corporation.
b. PageMaster Corporation shall provide a minimum of 100,000 up to
500,000 pagers for the fulfillment of this promotion to all
Purchase Customers who prepay their annual airtime.
c. PageMaster Corporation shall be responsible for all fulfillment
obligations of this promotion relating to paging services,
including, but not limited to, timely delivery of pagers, paging
services, defective goods handling, subcontracting, deadlines,
and handling of consumer and regulatory inquiries and complaints.
d. PageMaster Corporation will contract with a nationwide airtime
service provider to fulfill and to ship Purchasing Customer
orders direct to the Purchase Customers to fulfill this promotion
in a timely manner. PageMaster Corporation has chosen for the
purpose of this promotion, MetroCall Inc. to provide pager and
airtime services where the nationwide airtime service provider
has the facilities and the requisite governmental authority to
provide such services. All Purchase Customers shall become
customers of the nationwide airtime service provider. The
nationwide airtime service provider shall be allowed to market
additional pagers arid enhanced services to all Purchase
Customers, and to charge for over-calls with respect to any
account with a Purchase Customer. The nationwide airtime service
provider shall be able to discontinue or terminate service to any
Purchase Customer in accordance with the terms of the contract
between the nationwide airtime service provider and the Purchase
Customer. Notwithstanding the foregoing, PageMaster Corporation
shall remain solely responsible for the fulfillment of all
services and obligations set forth in this Agreement.
e. PageMaster Corporation shall not engage in the same or similar
promotion with any other On-Line Casinos from June 1, 1999
through June 1, 2000.
f. PageMaster Corporation will provide at no charge programming
software that will allow Go Call to broadcast any and all
messages of 125 characters or less to all Go Call consumers who
have redeemed pagers on this promotion.
5. Responsibilities of Go Call
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a. Go Call shall prepare and distribute at its own expense, all
advertising materials to be used for this promotion.
b. Go Call, shall submit in advance, all artwork and advertising to
PageMaster Corporation for approval as provided in Paragraph 8.
c. Go Call shall not engage in the same or similar promotions during
the Term of this Agreement with any other entity providing paging
services, equipment or other related products and services.
6. Payment Made As Deposit On Pagers
---------------------------------
Upon the execution of this Agreement, Go Call shall forward to
PageMaster Corporation a deposit in the sum of $100,000.00 to secure the
availability of 100,000 pagers to all Purchase Customers who prepay their annual
airtime for this promotion. The deposit is non-refundable except as follows:
a. PageMaster Corporation shall refund to Go Call, $1.00 per pager
on all pagers delivered to Purchase Customers pursuant to this
promotion (net return) up to the maximum refund of $100,000.00.
b. On the last day of each month, the refund of Go Call's portion of
the deposit shall be calculated by PageMaster Corporation for the
prior month and will be forwarded to Go Call by check, along with
an extended accounting of all pagers and customers until
September 1, 2000, unless otherwise instructed by Go Call. Go
Call, upon ten (10) days written notice, shall have the right to
examine the books and records of PageMaster Corporation to verify
the sales resulting from this promotion. Such examination shall
be made at the regular place of business of PageMaster
Corporation where such books and records are maintained during
normal business hours and shall be conducted at Go Call's expense
by a certified public accountant or other Go Call executive so
designated by Go Call.
7. Co-Op Marketing Funds
---------------------
PageMaster Corporation shall pay to Go Call, Co-Op Marketing funds for
the promotion. PageMaster Corporation will pay Go Call $3.00 per pager
(beginning with pager # 1) and 5% of all airtime renewal revenue for each pager
redeemed for this promotion consistent with the terms of paragraph 6b of this
Agreement.
8. Representation and Warranties
-----------------------------
PageMaster Corporation warrants and represents that it has a license to
advertise and use the trademarks, logos, etc. of Motorola, Inc., PageMaster
Promotions and such other third parties as may be necessary to advertise this
promotion. At least sixty (60) days prior to the commencement of the promotion,
PageMaster Corporation in its sole discretion shall have the unconditional right
to approve the accuracy of the description of the pager promotion and use of
corporate logos and photographs and descriptions of products and services
provided by designated airtime carriers or any third parties participating in
the promotion; in the event of disapproval, Go Call shall not proceed with the
promotion until the revised artwork or presentation is subsequently approved by
PageMaster Corporation in writing. Upon termination or expiration of this
Agreement, Go Call agrees not to use or advertise any trademarks, logos or other
property rights of PageMaster Corporation or any third parties participating in
the promotion. Any advertising, artwork, presentation, or other promotional
activities (collectively "Advertising") concerning the pager Promotion not
pre-approved in writing by PageMaster Corporation shall be deemed to be
unauthorized by PageMaster Corporation and shall constitute a breach of this
Agreement. In addition to the duty to indemnify PageMaster Corporation as
provided in Paragraph 9 hereof, Go Call shall also have the duty to indemnify
Motorola, Inc. or any affiliated entity from and against any and all claims,
expense, suits or demands arising from such unauthorized Advertising by Go Call,
or its agent, affiliate, licensee, franchisee or any other third party.
9. Indemnity
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Each party shall indemnify and hold harmless the other from any loss or
damages, including reasonable attorneys' fees incurred by the other because of
claims, suits or demands based on personal injury, death or property damage or
third party claims, suits or demands of any kind to the extent such loss or
damage is caused by or results from the negligent or willful acts or omissions
of the other or its employees or agents, including but not limited to the
unauthorized use of the trademark, logos, or other property of third parties
without the consent and approval of PageMaster Corporation. PageMaster
Corporation's participation in the promotion does not constitute an endorsement
of the products or services of Go Call nor does Go Call's participation in the
promotion constitute an endorsement of PageMaster Corporations or any third
party's products or services.
10. Force Majeure
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Neither party will be responsible for any delay or failure in
performance of any part of this Agreement to the extent that such delay or
failure is caused by any event beyond its control, which may include, but not be
limited to, fire, flood, explosion, war, strike, embargo, government
requirement, civil or military authority, and acts of God ("Conditions"). If any
such Condition occurs, the party delayed or unable to perform shall promptly
give notice to the other party and, if such Condition remains at the end of
thirty (30) days thereafter, the party affected by the other party's delay or
inability to perform may elect to terminate or suspend this Agreement or part
thereof, and resume performance of this Agreement once the Condition ceases,
with an option for the affected party to extend the period of this Agreement up
to the length of time the Condition endured. PageMaster Corporation make no
warranties, either express or implied, concerning the pagers or the transmission
of pages by the airtime service provider, including warranties of
merchantability or fitness for particular purpose. The parties agree that
PageMaster Corporation shall not be liable for service interruptions in the
telecommunications industry, capacity constraints or related problems, or for
any act or omission of any other entity furnishing products or services to
PageMaster Corporation. PageMaster Corporations' liability shall in no event
exceed an amount equivalent to the amounts received by PageMaster Corporation
hereunder.
11. Choice Of Law
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This Agreement will be governed by and construed in accordance with the
laws of the State of California, exclusive of conflicts of law principles, and
will, to the maximum extent practicable, be deemed to call for performance in
Los Angeles County, California. Los Angeles County, California shall be the sole
and exclusive venue for any litigation or dispute resolution relating to or
arising out of the Agreement. To seek or receive indemnification hereunder (i)
the party seeking indemnification must have properly notified the other party of
any claim or litigation of which it is aware to which the indemnification
relates; and the party seeking indemnification must have afforded the other the
opportunity to participate in any compromise, settlement, litigation or other
resolution or disposition of such claim or litigation.
12. Dispute Resolution
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a. The parties desire to resolve disputes arising out of this
Agreement without litigation. Accordingly, except for an action
seeking a temporary restraining order or injunction related to
the purposes of this Agreement, or a suit to compel compliance
with this dispute resolution process, the parties agree to use
the following alternative dispute resolution procedure as their
sole remedy with respect to any controversy or claim arising out
of or relating to this Agreement or its breach.
b. At the written request of a party, each party shall appoint a
knowledgeable, responsible representative to meet and negotiate
in good faith to resolve any dispute arising under this
Agreement. The parties intend that these negotiations be
conducted by non-lawyer, business representatives. The
discussions shall be left to the discretion of the
representatives. Upon agreement, the representatives may utilize
other alternative dispute resolution procedures such as mediation
to assist in the negotiations. Discussions and correspondence
among the representatives for purposes of these negotiations
shall be treated as confidential information developed for
purposes of settlement, exempt from discovery and production,
which shall not be admissible in the arbitration described below
or in any lawsuit without the concurrence of all parties.
Documents identified in or provided with such communications,
which are not prepared for purposes of the negotiations, are not
so exempted and may, if otherwise admissible, be admitted in
evidence in the arbitration or lawsuit.
c. If the negotiations do not resolve the dispute within sixty (60)
days of the initial written request, the dispute shall be
submitted to binding arbitration by a single arbitrator pursuant
to the Commercial Arbitration Rules of the American Arbitration
Association. A party may demand such arbitration in accordance
with the procedures set out in those rules. Discovery shall be
controlled by the arbitrator and shall be permitted to the extent
set out in this Section. Each party may submit in writing to a
party, and that party shall so respond, to a maximum of any
combination of thirty-five (35) (none of which may have subparts)
of the following: interrogatories, demands to produce documents
and requests for admission. Each party is also entitled to take
the oral deposition of one (1) individual of another party.
Additional discovery may be permitted upon mutual agreement of
the parties. The arbitration hearing shall be commenced within
sixty (60) days of the demand for arbitration and the arbitration
shall be held in Los Angeles, CA. The arbitrator shall control
the scheduling so as to process the matter expeditiously. The
parties may submit written briefs. The arbitrator shall rule on
the dispute by issuing a written opinion within thirty (30) days
after the close of hearings. The times specified in this
paragraph may be extended upon mutual agreement of the parties or
by the arbitrator upon a showing of good cause. Judgment upon the
award rendered by the arbitrator may be entered in any court
having jurisdiction.
d. Each party shall bear its own cost of these procedures. A party
seeking discovery shall reimburse the responding party the cost
of production of the documents (to include search time and
reproduction time costs). The parties shall equally share the
fees of the arbitration and the arbitrator.
13. Notices
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Any notice or demand given to either party under the Terms of this
Agreement or pursuant to statute shall be in writing and shall be given or made
by telegram, facsimile transmission, certified or registered mail, express mail
or other overnight delivery service or hand delivery, proper postage or other
charges prepaid and addressed or directed to the respective parties as follows:
PAGEMASTER CORPORATION
000 X. Xxxxxxxx Xxxx Xxxx. Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
ATTN: Xxxx Xxxxxxx, CEO
GO CALL, INC.
00 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, Xxxxxx X0X0X0
ATTN: Xxx Xxxxx, President
Such notice or demand shall be deemed to have been given or made when
actually received or seventy-two (72) hours after being sent, whichever occurs
first. The address for notice set out above may be changed at any time by giving
thirty (30) days prior written notice in the manner above.
14. Agreement Expiration
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Unless this Agreement is signed by an authorized representative of Go
Call and a signed copy delivered in person by mail or facsimile and personally
received by an authorized representative of PageMaster Corporation by 12:01 p.m.
PST, on or before March 26, 1999, this Agreement shall be deemed terminated and
shall be of no further force or effect and the parties shall have no liability
to one another. At PageMaster Corporation's option, an additional agreement(s)
may be prepared to further negotiate this or similar promotions with Go Call.
15. Entire Agreement
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This Agreement represents the entire agreement and understanding of the
parties hereto with respect to its subject matter hereof, and supersedes all
previous representations, understandings or agreements between the parties
hereto. No waiver, modification or cancellation of any term or condition of this
Agreement shall be effective unless executed in writing by the party charged
therewith.
16. Nonwaiver
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Either parties failure to enforce any of the provisions of this
Agreement shall in no way be deemed to affect the validity of this Agreement.
17. Counterparts
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This Agreement may be executed in duplicate counterparts, all of which
together shall constitute a single instrument, and each of which shall be deemed
an original of this Agreement for all purposes.
18. Successors and Assigns
----------------------
This Agreement shall be binding upon, and shall inure to the benefit of
the successors, heirs, administrators, trustees and assigns of the parties.
19. Confidentiality
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The parties acknowledge that preparation for and execution of the
promotion necessitates the exchange of confidential and proprietary information
relating and belonging to the parties to this Agreement, as well as to other
third parties integral to the promotion, including, without limitation, the
pager manufacturer and the airtime supplier (herein "Information"). Each party
agrees (1) to review, examine, inspect, obtain or utilize the information only
for the purpose of this promotion, (2) to otherwise hold such Information
strictly confidential, (3) to prevent the disclosure of such Information to
nonessential third parties without a "need to know", and (4) to insure that
each party's employees, agents and representatives and those of any integral
third party understand and are bound by the confidentiality obligations of this
Agreement. Each party shall indemnify the other party with respect to any loss
or damage arising from the unauthorized disclosure or use of the Information by
their respective employees, agents and representatives, or by those of any third
party to whom such Information was disclosed. The agreements contained in this
Paragraph shall survive the expiration, or termination of this Agreement. The
panics hereby agree that subsequent to the expiration or termination of this
Agreement, each party consents to the other party's use of its name only in
connection with advertising to their respective trade or industry.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date set forth below.
GO CALL, Inc.
Dated: 3/13/99 By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
PAGEMASTER CORPORATION
Dated: 3/13/99 By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
CE0
