Exhibit 10.5
MEMORANDUM OF UNDERSTANDING
1. Parties. The parties to this Memorandum of Understanding ("MOU") are
Direct Card Services, LLC ("DCS") and ROI Media Solutions (Rose/X'Xxxxx, Inc.)
(collectively, "ROI").
2. Recitals. DCS and ROI wish to jointly work to offer a stored value
card and/or debit card solution through either Visa or MasterCard to various
independent radio stations and networks both within and outside the United
States. As part of this offering, the parties will tailor the debit cards to
make them custom branded for the particular radio station or network. Further,
the parties will jointly participate in revenue derivative of card sales,
transaction fees, upsell and later channel transactions, provided, however, any
revenue derivative of advertising sales, research, or other consulting services
provided by ROI to third parties shall be the sole and exclusive property of
ROI.
3. Business Entity. For the initial test program identified below the
parties will form a joint venture for this purpose. Should the initial test be
successful as determined by the mutual agreement of the parties, the parties
will then form a limited liability company (jurisdiction to be determined) owned
50% by DCS (or its parent company, Direct Response Financial Services, Inc.) and
50% by ROI. Each party will have at least one appointment as a managing member
for either the joint venture or the limited liability company. In decision
making matters, ROI shall have primary authority to make decisions involving
radio station partnerships and marketing, etc., although DCS will have the
opportunity for reasonable input, however, ROI shall have the final authority
with respect thereto. Likewise, DCS shall have primary authority to make
decisions involving bankcard and financial transaction matters, etc., although
ROI will have the opportunity for reasonable input, however, DCS shall have the
final authority with respect thereto.
4. Creation of Test Program. ROI has already conducted two focus groups
to test the feasibility of a custom branded debit card for Los Angeles based
radio stations. Based on the results ROI and DCS wish to organize a custom
branded debit card program for a three (3) radio station market test commencing
the first week of January, 2004. In connection with the test, DCS will, at its
expense, create a web site and deliver generic (or to the extent practicable a
custom branded) debit card for one or more test radio stations. ROI will, at its
expense, work to coordinate and instigate the radio station tests, radio station
programming, produce the radio station spots, and otherwise consult with the
radio station employees as needed to ensure the best chance of success for the
test. ROI will also obtain from the radio stations their commitment to provide
airtime to promote the program. DCS will make its employees available to assist
ROI in its obligations as needed. The parties acknowledge and agree that the
test period may be anywhere from two (2) months to twelve (12) months. The
parties acknowledge and agree that some markets will finish testing sooner than
others.
5. Program Roll-Out. Should a test program be successful, the parties
will introduce the debit card program on a regional or national basis, depending
upon the radio station or network, as soon as practicable. All costs advanced by
DCS for the debit cards, customer service, and pre-program production costs
shall be recouped by DCS as a priority before distribution of revenue between
the parties specifically as identified in Exhibit "A" appended hereto. Further,
all pre-program production costs advanced by ROI shall thereafter be recouped as
a second priority before distribution of revenue between the parties
specifically as identified in Exhibit "A" appended hereto. The parties
anticipate that the program will be priced in accordance with Exhibit "B"
appended hereto. Notwithstanding anything to the contrary contained herein, no
individual costs or expenses in excess of $250 shall be recouped without the
prior written consent of both ROI and DCS.
6. Coordination of Radio Station Negotiations. The parties agree that
they will work jointly and in good faith as needed in connection with radio
station negotiations for the debit card program. It is agreed that both parties
are needed in the negotiations to ensure the best chances of success for both
the test and the subsequent program rollout. This paragraph is subject to the
terms of paragraph 3, above.
7. Revenue and Rights to Revenue. Gross revenue shall be the property
of the parties through their joint venture or subsequent limited liability
company. The parties shall have the right to recoup priority costs as defined in
paragraph 5, above. After recoupment of costs, adjusted gross revenue shall be
divided equally between the parties or 50% to DCS (or Direct Response Financial
Services, Inc.) and 50% to ROI. For so long as revenue exists by reason of any
action of the parties or any subsequent entity hereunder based upon the business
activity contemplated herein (including from any source or by reason of any
ancillary activity related to this MOU), and notwithstanding any termination of
this MOU or subsequent agreement, revenue shall be distributed between the
parties in accordance herewith.
8. Confidential Information. All information, materials and documents
provided by ROI regarding the future business is confidential and/or proprietary
(collectively the "Confidential Information"). DCS agrees all Confidential
Information furnished to DCS in connection with this joint venture and the
discussions relating thereto, shall be deemed confidential and shall be kept in
strict confidence under appropriate safeguards by DCS. The term "Confidential
Information", as used herein, does not include information which (i) was
lawfully in DCS's possession prior to any disclosure by ROI, (ii) is or becomes
generally available to the public other than as a result of disclosure by DCS or
its affilaites or representatives, (iii) is obtained by DCS from a third party
who, to DCS's knowledge, has disclosed such information without breaching a
contractual or legal duty to ROI. All proprietary information directly relating
to the joint venture contemplated hereby shall remain ROI's sole and exclusive
property, provided, in the event that the parties agree to continue their
relationship beyond the initial program stage, ROI shall contribute such
proprietary information to the joint venture or limited liability company
contemplated hereby.
9. Exclusivity and Non-Competition. The parties agree that so long as
they are in relationship with one another concerning the context of this MOU or
subsequent agreements, neither party will compete with the other in connection
with the offering or distribution of stored value debit cards or credit cards
affiliated with an individual radio station or a radio network as contemplated
herein. Moreover, the parties agree that during their relationship they will
exclusively work with each other in connection with the radio station/debit card
program as defined herein. The parties further agree to work in good faith to
develop, as is practicable or reasonable, a like program and business
arrangement between themselves for television media however distributed.
10. Term of Agreement. The duration of the relationship between the
parties shall be for thirty-six (36) months subject to twelve (12) month
automatic renewals, provided, either party may terminate this agreement for an
uncured material breach or upon six (6) months' written notice given by one
party to the other. Any termination of this MOU will have no effect on any
earned residual income as defined in paragraph 7, above.
11. Sale of Portfolio or Income Stream. For the first twelve (12)
months following the date of this MOU neither party may sell its rights to
revenue hereunder. Both parties agree that they will enter into customary right
of first refusal and buy-sell agreements upon consummation of a comprehensive
written agreement.
12. Subsequent Agreement. The parties will work in good faith to
incorporate the terms hereof into a later comprehensive written agreement. The
same shall be accomplished on or before November 15, 2003. In the event that no
such agreement is obtained the terms hereof and this overall MOU shall be
binding upon the parties as a legally enforceable agreement.
13. Choice of Law. The validity of this MOU, 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.
14. Dispute Resolution. Every claim, dispute or controversy of whatever
nature, arising out of, in connection with, or in relation to this MOU (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 Section. 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.
IN WITNESS WHEREOF, this MOU is executed this ____ day of November,
2003, at Los Angeles, California.
Rose/X'Xxxxx, Inc.
By: __________________________
Xxxxx Xxxx
Direct Card Services, LLC
By: __________________________
X. Xxxxxxxx Xxxxxxxx
