Exhibit 10.7
RADIO MARKETING AGREEMENT
THIS RADIO MARKETING AGREEMENT (the "Agreement") is entered into as of
February ___, 2004 (the "Effective Date") by and between Direct Card Services,
LLC, a Delaware limited liability company (hereinafter "DCS"), ROI Media
Solutions, LLC, a California limited liability company (hereinafter "ROI") each
of which are hereinafter sometimes referred to collectively as "Card Provider"
and Emmis Communications, an Indiana corporation (hereinafter sometimes "Emmis"
or "Radio Provider").
RECITALS
A. Card Provider has an approved stored value card program through a
federally chartered bank which program is also approved by the bank association
known as "MasterCard";
B. Radio Provider owns and operates an FM radio station in Phoenix,
Arizona, known as "Power 92" with call letters KKFR FM;
C. Card Provider desires to offer a custom-branded stored value
MasterCard to Radio Provider's listeners and to engage in separate advertiser
promotion involving such bankcard program; and,
D. Radio Provider also desires to offer a custom-branded stored value
MasterCard to its listeners and to engage in separate advertiser promotions for
the bankcard program.
AGREEMENT
1. DEFINITIONS. Capitalized terms used and not otherwise defined in
this Agreement shall have the following meanings, respectively:
1.1. "CONFIDENTIAL INFORMATION" means any information of a party
disclosed to the other party in the course of this Agreement, which is
identified as, or should be reasonably understood to be, confidential to the
disclosing party, including, but not limited to, know-how, trade secrets, data,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans,
projections, marketing data and this Agreement and all exhibits hereto.
"Confidential Information" shall not include information which: (i) is known or
becomes known to the recipient directly or indirectly from a third-party source
other than one having an obligation of confidentiality to the providing party;
(ii) is or becomes publicly available or otherwise ceases to be secret or
confidential, except through a breach of this Agreement by the recipient; or
(iii) is or was independently developed by the recipient without use of or
reference to the providing party's Confidential Information, as shown by
evidence in the recipient's possession.
1.2. "INTELLECTUAL PROPERTY RIGHTS" means all intellectual property
rights arising under statutory or common law, whether or not perfected,
including, without limitation, all (a) United States and foreign patents, patent
applications, and other patent rights, including, without limitation, divisions,
continuations, renewals, reissues, and extensions of any of the foregoing, (b)
rights associated with works of authorship including copyrights, copyright
applications, copyright registrations, and moral rights, (c) Confidential
Information, (d) any right analogous to those set forth in this definition, and
(e) any other proprietary rights relating to intangible property.
1.3 "STORED VALUE CARD PROGRAM OR SVC" means an approved custom-branded
MasterCard stored value debit card. It will either be custom-branded using logo
materials from the Radio Provider or it will be the Direct Card Services Media
Card (an existing approved MasterCard stored value debit card offered by Card
Provider).
1.4. "TERM" means the term of this Agreement as provided in Paragraph
10.
2. STORED VALUE CARD PROGRAM.
2.1. Card Provider at its expense will provide the SVC for use by Radio
Provider. The approved sales program ("ASP") for Radio Provider is attached
hereto as Schedule "1." Card Provider will be responsible for interfacing with
the bank issuer, card processor, call center and other customer service related
services and to otherwise provide for the issuance and delivery of the SVC.
Radio Provider agrees that it shall not contact the bank issuer or card
processor used by Card Provider and that should Radio Provider do so, the same
shall be grounds for Card Provider to terminate this Agreement at its election.
2.2. Radio Provider shall act reasonably and with commercial diligence
to provide Card Provider any artwork, programming schedule, and business
information regarding the station's general programming and its target audience
to assist Card Provider in obtaining bank approval for the SVC. The parties
agree that this covenant of Radio Provider is time sensitive as time is of the
essence in any approval from the bank issuer.
2.3. At such time as Card Provider receives written approval from the
bank issuer for the SVC, Card Provider shall give Radio Provider written
notification that the SVC has been approved. Such approval notice shall also
include delivery of the approved radio script and other approved promotional
spots.
2.4. Card Provider will provide a sufficient inventory of SVC cards for
the initial roll-out of the card program. In addition to delivery of the SVC,
Card Provider will also manage and work with the bank issuer and the processor
for appropriate and timely delivery of PIN numbers to customers, organize and
deliver a co-branded monthly statement, organize and provide an on-line Internet
based monthly statement and other financial information and also provide a
custom-branded SVC membership kit for each cardholder. Card Provider will
furthermore continue to provide an inventory of SVC cards as the card program is
later marketed should the initial roll-out prove successful. Both Card Provider
and Radio Provider shall act in good faith and with commercial diligence to
ensure the successful roll-out and later marketing of the SVC via Radio
Provider's FM radio station.
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2.5. Card Provider will provide consulting and business support to
Radio Provider in connection with the SVC. This includes, but is not limited to,
sales assistance, marketing expertise and program consultation as it
specifically relates to the implementation of the SVC.
2.6. Card Provider will provide Radio Provider monthly statements
showing SVC issuance and transaction activity related to Radio Provider's
identification and calculation of commissions payable to Radio Provider as set
forth in Section 5, below. Such statements will be given by Card Provider to
Radio Provider within five (5) business days after the same are made available
to Card Provider by the issuing bank and/or the card processor.
2.7. Card Provider will additionally deliver monthly reports to Radio
Provider in accordance with the DirecTrac System (operated by DCS) showing
detailed information related to the SVC. Such report will include the following
information: number of bankcards issued, how much gross dollars were spent under
the SVC for both new and existing cards, and identification of where monies were
spent in general categories such as restaurants, retail merchants, airline
fares, rental cars, hotel accommodations, and the like. Card Provider will, in
addition to the above, provide the basic monthly report provided by DirecTrac
System to Radio Provider.
3. RADIO MARKETING.
3.1. Radio Provider will market the SVC under this Agreement to its
listeners in the metro survey area as defined by Arbitron.
3.2. Radio Provider shall market and promote the SVC on a regular and
consistent basis during the term of this Agreement. This includes, but is not
limited to, doing so in accordance with the media schedule attached hereto as
Schedule "2." Nothing herein shall preclude Radio Provider from promoting the
SVC over and above the media schedule. Further, such promotion may include a
series of on-air promotional announcements, on-air giveaways, personality
endorsements, on-site field promotions and Internet web site promotion. Such
promotion may in all cases include reference to Card Provider's toll-free 1-800
telephone number for sign-up for SVC and reference to SVC reload partners. Radio
Provider shall, as part of such promotion, provide prominent space on its
Internet web site promoting the SVC, including signup links and using its
existing e-mail database, if any, to promote the SVC. In addition, Radio
Provider grants Card Provider an exclusive and irrevocable license during the
term hereof to use its logo on the written monthly statements provided customers
of the SVC. Any advertising space provided by Card Provider to Radio Provider
and sold by Radio Provider for insertion in the written monthly statements with
its derivative income shall be the sole property of Radio Provider in accordance
with Section 3.7, below.
3.2.1. Radio Provider shall, on a monthly basis, issue a certified
affidavit to Card Provider confirming the actual delivery of media pursuant to
Schedule "2." If a deviation exists between the affidavit and Schedule "2"
whereby less media was used than committed, then within thirty (30) days
following the shortfall of media Radio Provider shall "make good" on the
shortfall of media and replace the same with the same or similar media.
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3.3. Radio Provider shall offer a minimum of 100 SVC giveaway items for
each week during the first two (2) months of the SVC marketing program as
defined herein. Radio Provider, at its expense, shall pre-load the SVC giveaway
items. The giveaway load for the SVC is identified in Schedule 3" appended
hereto. Card Provider at its own expense will provide and deliver to listeners
the SVCs to be given away.
3.4. Radio Provider shall further cooperate with Card Provider in
obtaining and maintaining SVC reload partnerships. Such partners shall include
but not be limited to, a major bank, convenience/grocery store chain and check
cashing retail store chain. Such cooperation includes Radio Partner mentioning
such reload partners in all SVC promotions set forth in Sections 3.1 and 3.2,
above.
3.5. As part of the promises given by Radio Provider in Sections 3.1
and 3.2, above, Radio Provider may further make available at no cost to Card
Provider promotional items and giveaways otherwise available and used by Radio
Provider to promote its radio station and to create listener loyalty. The
aforesaid may include any reward or loyalty programs used by Radio Provider.
Card Provider will track and report Loyalty Points accumulation and redemption
to Radio Provider.
3.6. Radio Provider further agrees that in signing this Agreement it is
acknowledging and consenting to all of the rules and restrictions applicable to
Card Provider by the issuing bank and MasterCard.
3.7. Any advertising income paid to Radio Provider derived from reload
partners for the SVC or from participating discount partners (retail outlets,
merchants or services) shall be the exclusive property of Radio Provider.
4. EXCLUSIVE RELATIONSHIP. During the term of this Agreement Radio
Provider agrees it will not offer any other co-branded credit card, debit card,
gift card or any other type of bank card or non-bank card (ATM card) or SVC
using or in relationship with any other bank or card provider. Absent prior
written approval from Radio Provider, Card Provider agrees that during the term
of this Agreement it will not offer an SVC to a "competitor" of Radio Provider
in the metro survey area as defined by Arbitron. For purposes of this section
"competitor" shall mean an existing English language radio station licensed to
the Phoenix, Arizona market, unless it is commonly owned by Emmis.
5. RADIO PROVIDER COMMISSIONS. Radio Provider shall be paid commissions
pursuant to Schedule "4" appended hereto.
6. AUDIT RIGHTS.
6.1. Radio Provider shall have the right, at its own expense, to direct
an independent certified public accounting firm to inspect and audit the
relevant accounting and sales books and records of Card Provider limited to
those books and records needed to calculate commissions payable by Card Provider
hereunder pursuant to Schedule "4" provided, that (a) any such inspection and
audit shall be conducted during regular business hours in such a manner as not
to interfere with normal business activities; (b) in no event shall audits be
made hereunder more frequently than once each calendar year; (c) if any audit
should disclose an underpayment, Card Provider shall immediately pay such amount
to Radio Provider; and (d) the reasonable fees and expenses relating to any
audit which reveals an underpayment in excess of ten percent (10%) of the amount
owing for the reporting period in question shall be borne entirely by Card
Provider.
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6.2. Card Provider shall have the right, at its own expense, to direct
an independent certified public accounting firm to inspect and audit of all the
accounting and sales books and records of Radio Provider that are relevant to
radio marketing of the SVC by Radio Provider hereunder; provided that (a) any
such inspection and audit shall be conducted during regular business hours in
such a manner as not to interfere with normal business activities; (b) in no
event shall audits be made hereunder more frequently than once each calendar
year; (c) if any audit should disclose insufficient media, Radio Provider shall
immediately commit additional media; and (d) the reasonable fees and expenses
relating to any audit which reveals a shortfall of media in excess of ten
percent (10%) from Schedule "2" subject to the provisions of Section 6.2, above.
Meaning, so long as Radio Provider makes good on the media shortfall no
additional media hereunder shall be required.
7. CONFIDENTIALITY AND NON-COMPETITION.
7.1. PROTECTION OF CONFIDENTIAL INFORMATION. The parties recognize
that, in connection with the performance of this Agreement, each of them may
disclose to the other its Confidential Information. The party receiving any
Confidential Information agrees to maintain the confidential status of such
Confidential Information and not to use any such Confidential Information for
any purpose other than the purpose for which it was originally disclosed to the
receiving Party, and not to disclose any of such Confidential Information to any
third party.
7.2. PERMITTED DISCLOSURE. The parties acknowledge and agree that each
may disclose Confidential Information: (a) as required by law, provided that
each party will use commercially reasonable efforts to obtain confidential
treatment of any Confidential Information so disclosed; (b) to their respective
directors, officers. employees, attorneys, accountants and other advisors, who
are under an obligation of confidentiality, on a "need-to-know" basis; (c) to
investors who are under an obligation of confidentiality, on a "need-to-know"
basis; or (d) in connection with disputes or litigation between the parties
involving such Confidential Information; and each Party will use commercially
reasonable efforts to limit disclosure to that purpose and to ensure maximum
application of all appropriate judicial safeguards (such as placing documents
under seal).
7.3. APPLICABILITY. The foregoing obligations of confidentiality shall
apply to directors, officers, employees and representatives of the parties and
any other person to whom the Parties have delivered copies of, or permitted
access to, such Confidential Information in connection with the performance of
this Agreement, and each party shall advise each of the above of the obligations
set forth in this Paragraph 7.
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7.4. THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential Information
of a third party disclosed to either party shall be treated by such party in
accordance with the terms under which such third party Confidential Information
was disclosed; provided, that the party disclosing such third party Confidential
Information shall first notify the other party that such information constitutes
third party Confidential Information and the terms applicable to such third
party Confidential Information; and provided further, that either party may
decline, in its sole discretion, to accept all or any portion of such third
party Confidential Information.
7.5. NON-COMPETITION. The parties agree that so long as they are in
relationship with one another concerning the context of this Agreement, neither
party will compete with the other in connection with the offering or
distribution of co-branded stored value debit cards or credit cards affiliated
with an individual radio station as contemplated herein subject to and in
accordance with Section 4, above.
7.6. NON-DISCLOSURE AGREEMENT. The confidentiality provisions contained
in this Paragraph 7 supersede any prior Non-Disclosure Agreement between the
parties; provided, that no party shall be relieved of liability for any breach
of' such Non-Disclosure Agreement prior to the Effective Date.
8. REPRESENTATIONS AND WARRANTIES.
8.1. AUTHORITY. Each party represents and warrants to the other party
that:
8.1.1. CORPORATE AUTHORITY; NO CONFLICT; BINDING AGREEMENT.
Such party has the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; and the execution of
this Agreement by such party, and the performance by such party of its
obligations and duties hereunder, do not and will not violate any agreement to
which such party is a party or by which it is otherwise bound; and when executed
and delivered by such party, this Agreement will constitute the legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms.
8.1.2. NO IMPLIED REPRESENTATIONS OR WARRANTIES. Such party
acknowledges that the other party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement.
9. LIMITATION OF LIABILITY AND INDEMNITY.
9.1. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN THIS PARAGRAPH 9,
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY
PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS.
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9.2. NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN PARAGRAPH 8 OF
THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE
OF PERFORMANCE.
9.3. EXCLUSIVE REMEDIES. THE RIGHTS AND REMEDIES SET FORTH IN THIS
PARAGRAPH 9 CONSTITUTE THE ENTIRE OBLIGATIONS AND THE EXCLUSIVE REMEDIES OF THE
PARTIES CONCERNING INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES OR THIRD PARTY CLAIMS.
10. TERM AND TERMINATION.
10.1. TERM. This Agreement shall commence on the Effective Date and
shall remain in force for a term of thirty-six (36) months subject to twelve
(12) month automatic renewals, provided, either party may terminate this
Agreement for an uncured material breach which exists for thirty (30) days or
more. Should this Agreement end by its own terms (i.e., expiration of its term
without renewal) or by reason of an uncured material breach by Radio Provider,
then in such case, Radio Provider shall be entitled to no further commissions
pursuant to Section 5, above. Either party may terminate this Agreement after
the first twelve (12) months with six (6) months' written notice.
10.2. TERMINATION FOR BANKRUPTCY. Either party may terminate this
Agreement upon giving written notice to the other party in the event that the
other party files a petition in bankruptcy, or in the event that all or part of
the other party's assets are assigned to a trustee or receiver, or if an
involuntary petition is filed by a third party against the other party and the
other party does not resolve such petition in its favor within sixty (60) days
after the filing thereof.
10.3. SURVIVAL. Any expiration or termination of this Agreement shall
not relieve any party from any obligations hereunder which have accrued on or
before the effective date of such expiration or termination, nor affect the
provisions set forth in Section 7, all of which are intended by the parties to
survive such expiration or termination.
10.4. RETURN OF CONFIDENTIAL INFORMATION. Upon expiration or
termination of this Agreement, each party shall promptly return to the other all
Confidential Information of the other party, including all of the physical
embodiments thereof in its possession, including all copies thereof, and shall
cease using the same. Each party shall certify to the other party in writing
compliance with this Paragraph upon the return of such materials.
10.5 INJUNCTIVE RELIEF. The parties agree that any material breach of
the exclusivity or confidentiality provisions of this Agreement, or the
infringement of either party's intellectual property rights will cause
irreparable injury and that injunctive relief in a court of competent
jurisdiction will be appropriate to prevent an initial breach or enjoin a
continuing breach in addition to any other relief to which the aggrieved party
may be entitled.
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11. ARBITRATION. Every claim, dispute or controversy of whatever
nature, arising out of, in connection with, or in relation to this Agreement (an
"Arbitrable Claim"), shall be settled by final and binding arbitration conducted
in Los Angeles, California. Judgment upon any award may be entered by any state
or federal court having jurisdiction thereof. Except as provided in this
Agreement, the Federal Arbitration Act shall govern the interpretation,
enforcement and all proceedings pursuant to this Paragraph. Adherence to this
dispute resolution process shall not limit the right of the parties hereto to
obtain any provisional remedy, including injunctive or similar relief, from any
court of competent jurisdiction as may be necessary to protect their respective
rights and interests pending arbitration. Notwithstanding the foregoing
sentence, this dispute resolution procedure is intended to be the exclusive
method of resolving any Arbitrable Claims arising out of or relating to this
Agreement. The arbitration procedures shall follow the substantive law of the
State of California, including the provisions of statutory law dealing with
arbitration, as it may exist at the time of the demand for arbitration, insofar
as said provisions are not in conflict with this Agreement and specifically
excepting therefrom sections of any such statute dealing with discovery and
sections requiring notice of the hearing date by registered or certified mail.
The arbitrators shall determine the prevailing party and shall include in their
award that party's reasonable attorneys' fees and costs.
12. MISCELLANEOUS PROVISIONS.
12.1. NOTICES. Any notice, demand, or request with respect to this
Agreement shall be in writing and shall be effective only if it is delivered in
the manner prescribed herein, addressed to the appropriate party at its address
set forth below. Such communications shall be effective (a) when they are
received by the addressee if personally delivered or transmitted by confirmed
fax or electronic mail; or (b) two (2) days after deposit in the U.S. mail, if
sent by certified or registered mail or (c) one (1) day after deposit with a
nationally recognized overnight courier service. Any party may change its
address for such communications by giving notice to the other party in
conformity with this Paragraph.
For: Direct Card Services, LLC
Attn: T. Xxxxxxxx Xxxxxxxx
00000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
For: ROI Media Solutions, LLC
Attn: Xxxxx Xxxx
0000 Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
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For: Emmis Communications
Attn: Xxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
12.2. ASSIGNMENT. No right may be assigned, and no duty may be
delegated, by either party under this Agreement except upon the written consent
of the other party, and any attempted assignment and delegation without such
consent shall be void. Notwithstanding the foregoing, however, either party
shall be entitled to assign this Agreement, and all rights and obligations
hereunder, to a successor to all or substantially all of such party's assets or
voting securities, whether by sale, merger, or otherwise; provided that either
party indicating such assignment shall provide the other party with at least
thirty (30) days' prior written notice and cause such assignee to be bound by
this Agreement. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective representatives,
administrators, successors and permitted assigns except as otherwise provided
herein.
12.3. RELATIONSHIP OF PARTIES. Each party is an independent contractor
of the other, and neither shall be deemed an employee, agent, or partner of the
other. Neither party shall make any commitment, by contract or otherwise,
binding upon the other nor represent that it has any authority to do so.
12.4. FORCE MAJEURE. Neither party shall be responsible or liable to
the other party for nonperformance or delay in performance of any terms or
conditions of this Agreement due to acts of God, acts of governments, wars, acts
of terrorists, riots, or other causes beyond the reasonable control of the
nonperforming or delayed party.
12.5. GOVERNING LAWS. The validity of this Agreement, the construction,
interpretation, and enforcement hereof and the rights of the parties hereto with
respect to all matters arising hereunder or related hereto shall be determined
under, governed by, and construed in accordance with the internal laws of the
State of California, without regard for principles of conflicts of laws.
12.6. SEVERABILITY. If any provision of this Agreement is found to be
invalid or unenforceable, the remainder of this Agreement shall be interpreted
so as best to reasonably effect the intent of the parties hereto.
12.7. ENTIRE AGREEMENT. This Agreement and the exhibits hereto
constitute the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations and understandings between the parties.
12.8. AMENDMENT AND WAIVERS. Any term or provision of this Agreement
may be amended, and the observance of any term of this Agreement may be waived,
only by a writing signed by the party to be bound.
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12.9. ATTORNEYS' FEES. The prevailing party in any action or proceeding
to enforce or interpret any part of this Agreement shall be entitled to recover
its reasonable attorneys' fees.
12.10. EXPENSES. Each party shall bear all expenses associated with
negotiation and preparation of this Agreement and the completion of the
transaction contemplated hereby.
12.11. ADVERTISING AND PUBLICLY. Card Provider and Radio Provider each
hereby agree that any press, marketing or advertising releases, of either party
that refer to the other party or the other party's products or services shall
not be released or disseminated without the prior written approval of the other
party. Requests for such approval will not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written at Los Angeles, California.
Emmis Communications
By: _____________________________________
Xxxx Xxxxx, V.P. / Market Manager
ROI Media Solutions, LLC
By: _____________________________________
Xxxxx Xxxx, Managing Member
Direct Card Services, LLC
By: _____________________________________
T. Xxxxxxxx Xxxxxxxx, Managing Member
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