[GRAPHIC
OMITTED] MEDIA SERVICES AGREEMENT
CHIEF
MEDIA CHIEF MEDIA, LLC.
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This Media Services Agreement (this "Agreement") is made and
entered into as of March 10, 2004, by and between CHIEF MEDIA, LLC a Limited
Liability Company ("Agency"), with its principal offices at 00 Xxxx 00xx Xxxxxx,
00xx Xxxxx, XX, XX 00000 , and THE RIGHT SOLUTION ("Advertiser") with its
principal offices at 0000 X. Xxxxxxx Xxxx, Xxxxx 00, Xxx Xxxxx, XX 00000
(collectively Agency and Advertiser are referred to as the "Parties" or
individually, each is referred to as a "Party").
RECITALS
WHEREAS Agency is in the business of planning, managing and procuring
advertising media time (on television and radio) and space (in newspapers,
magazines, and other published media) and other initial "pre-rollout" services
outlined in Section 5 herein; on behalf of businesses seeking to advertise their
products and services; and
WHEREAS Advertiser desires to engage Agency and to have Agency plan, manage and
procure media time and/or space for the purpose of advertising various direct
marketing campaigns (collectively, the "Project");
NOW, THEREFORE, in consideration of the agreements set forth below and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. ENGAGEMENT OF AGENCY. Advertiser hereby engages Agency as its exclusive agent
to book and purchase advertising media time or space on behalf of and for the
use of Advertiser for the purpose of advertising the Project (Rollout Phase)
Subject to the provisions of Section 2, Advertiser hereby authorizes Agency to
enter into contracts (in the name and on behalf of Advertiser) with third
parties for the purchase of media time or space.
2. RESPONSIBILITIES OF AGENCY.
(A) Upon being advised by Advertiser of its proposed budgets thereof, Agency
shall prepare detailed media plans consistent with such budgets. Such plans
shall consist of a listing of day parts, date spans, and such other criteria as
Advertiser may reasonably specify for each media type purchased.
Following Advertiser's approval of the media buy plans, Agency shall buy the
advertising time or space on behalf of Advertiser and implement such approved
plans.
(B) Upon completion of media buys, Agency will provide a summary comparison of
planned media to purchased media. Agency will endeavor to prepare and forward to
Advertiser such summary comparisons on a weekly basis.
(C) Agency will assist the Advertiser's chosen tape duplication and
customization vendor ("Vendor") by providing the Vendor with the station's
requirements for airing including the size of tape, trafficking instructions,
and the time prior to airing in which the station must receive the tape.
(D) Agency will provide ongoing analysis setting forth recommended adjustments
to the existing media buy based on interim telemarketing sales results and
Advertiser direction.
(E) Agency will reconcile any discrepancies, subject to Advertiser's approval,
and obtain make-goods, credits or other compensating adjustments from the media
suppliers.
(F) Agency will work directly with Advertiser's telemarketing service provider
to assess order results and assist in problems involving sourcing of all data
points captured. Upon advertiser's requested schedule as defined during
operational set up, Agency shall provide written estimates of orders, cleared
dollars, and cost-per-order. The estimates shall be based on analysis of order
"bursts" received from the telemarketer. On an ongoing basis, Agency will
provide Advertiser with reports containing similar information based upon air
times received from media vendors, and Agency will use best efforts to insure
the accuracy of such reports. The reports will provide Advertiser a listing of
the orders, cleared dollars, cost-per-order, cost per call, cost per thousand,
up-sell ratios, order ratios and media efficiency ratios for each media spot
individually and in the aggregate.
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3. ADVERTISER AUTHORIZATIONS AND APPROVALS. Within the reasonable requirements
and parameters established by Advertiser and of which Agency is given written
notice, Advertiser hereby authorizes Agency to purchase and book media
advertising availabilities ("Availabilities") without Advertiser's prior
approval. Notwithstanding the foregoing, Advertiser reserves its right to serve
advance written notice upon Agency requiring Agency to obtain prior approval to
purchase and book future Availabilities. Said notice shall only be effective as
to future bookings, and shall not affect those bookings which Agency cannot
cancel in compliance with the media supplier's cancellation policy. Agency, upon
receiving such written notice, shall submit to Advertiser suggested media
advertising availabilities with costs for its use ("Suggested Availabilities"),
and Advertiser within a reasonable time prior to the date and time such
availabilities must be booked shall select and approve, via email, those
Suggested Availabilities that it desires to purchase ("Approved
Availabilities"). During the term of this Agreement, Advertiser shall not book
the Suggested or Approved Availabilities other than through Agency. Agency shall
use all reasonable efforts to book the Approved Availabilities for Advertiser's
use. Agency shall not be liable or responsible for any failure to obtain
Approved Availabilities due to Advertiser's delay in selecting and approving the
media. (Approved Availabilities booked for Advertiser's use are hereinafter
referred to collectively as the "Media Contracts" or individually as a "Media
Contract").
4. ADVERTISER'S LIABILITY. Advertiser shall be liable for and shall pay Agency
all incidental costs and expenses related to each Media Contract, and all
commissions owed to Agency for each such Media Contract as specified in Section
5.
5. COMPENSATION. (A) Advertiser shall be liable for and shall pay to Agency a
commission equal to Fifteen Percent (15%) of the "Gross Media" dollars spent or
as scheduled per the Media Contract. The parties agree that Gross Media shall
mean the total cost of media purchased inclusive of agency commission.
(B) Agency, upon undertaking any of the initial "pre-rollout" services mentioned
below, with and on behalf of Advertiser, shall xxxx Advertiser per the following
fee schedule: (See Section 5C for waiver clause):
Commercial Production Assistance/Scripting - $500 per hour
Vendor setup - $400 per hour
Call center script writing - $500 per hour
Call Center Training - $3,000 per day + out of pocket expenses
(C) In the event Advertiser and Agency proceed to the Rollout Phase the above
fees will be waived by Agency and applied against future commissions per 5(A).
The parties agree that Rollout shall mean gross media spend of at least $300
thousand dollars spent per week for a consecutive four week period.
6. BILLING AND PAYMENT. Agency shall regularly invoice Advertiser for the costs
and expenses of all Media Contracts and Agency's commission for such contracts.
Agency will invoice Advertiser not less than four (4) weeks in advance of the
first scheduled airdate for all media types ("First Scheduled Airdate") and
Advertiser shall make payment not later than three (3) weeks prior to the First
Scheduled Airdate. Advertiser shall remit funds to Agency by wire transfer to
the following account:
X.X. XXXXXX XXXXX
CHIEF MEDIA
ACCOUNT # 891-502399665
ROUTING # 000-0000-00
000 XXXX XXXXXX
XXXXXXXXXX, XX 00000
000-000-0000
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7. CANCELLATIONS. (A) In the event that Advertiser cancels any Media Contract
such that Agency is unable to cancel its contract with the media outlet
including, but not limited to, print, broadcast stations, cable stations, radio
stations and online media, Advertiser shall remain liable for and shall pay
Agency the following:
(i) All actual costs incurred in connection with such canceled Media Contract;
and
(ii) Agency's commission for such canceled contract.
In the event of cancellation by Advertiser pursuant to this Subsection 7(A),
Agency shall use its reasonable best efforts to mitigate Advertiser's liability
to Agency for costs and commissions. If Agency is able to resell the Media
Contract, Advertiser will be liable to Agency only for an amount equal to the
cost and commission which Agency would receive under the relevant Media Contract
less the cost and commission, if any, actually received by Agency upon resale.
(B) If Advertiser fails to make timely payments, for the costs, expenses and
commissions for any Media Contract, as required by Sections 4, 5 and 6 hereof,
Advertiser will be charged a fee equal to one half of one percent (.50%) per
week of any balance outstanding and Agency reserves the right, in its sole
discretion, but shall not be obliged to, deem the unpaid Media Contract as
having been canceled by the Advertiser.
(C) Except as provided in Subsection 7(B), cancellations of Media Contracts by
Advertiser may only be made in writing signed by Advertiser and delivered to
Agency.
8. CONFIDENTIALITY.
(A) Agency agrees that all confidential proprietary information, materials, and
knowledge acquired or learned by Agency from Advertiser or developed or obtained
by Agency in connection with its services hereunder, including but not limited
to, ordering information, strategy, sales results, data, media information,
financial results, customer lists, trade secrets, costs, and other information,
which if disclosed could be of assistance to Advertiser's competitors, will be
held by Agency in confidence. Except as may otherwise be required by applicable
law or judicial or administrative order, such information may not be disclosed
or used by Agency for any purpose whatsoever except solely by Agency personnel,
its advisors and representatives or otherwise in furtherance of Agency's
obligation's and responsibilities to Advertiser under this Agreement. The
obligations of this paragraph do not apply to information which is or later
becomes part of the public domain through no fault of Agency.
(B) Advertiser agrees that all confidential proprietary information, materials,
and knowledge acquired or learned from Agency or developed or obtained in
connections with Agency's services hereunder, including but not limited to,
Suggested Availabilities, stations, unit costs for the time slots, scripting,
buying strategies, analytical strategies and other information which if
disclosed could be of assistance to Agency's competitors will be held by
Advertiser in confidence. Except as may otherwise be required by applicable law
or judicial or administrative order, such information may not be disclosed or
used for any purpose whatsoever except solely by Advertiser's personnel in
furtherance of Advertiser's obligation's and responsibilities to Agency under
this Agreement. The obligations of this paragraph do not apply to information
which is or later becomes part of the public domain through no fault of
Advertiser.
9. INDEMNIFICATION. Each party shall indemnify and hold the other party harmless
from and against all claims, liabilities, loss and damages arising from or
relating to any and all Media Contracts, and any and all claims, liabilities,
losses or damages arising from or relating to any advertising for which Media
Contracts are used and the products or services advertised, including the costs
of litigation and attorney's fees, unless the claim, liability, loss or damages
arise solely from the negligence of the party against which such claim is made.
In addition, notwithstanding the foregoing, Agency and Advertiser agree that
Agency is not responsible or liable to Advertiser or Advertiser's Client, if
any, for any claims or damages arising from or relating to the sales performance
of any product or service advertised, without regard to whether or not
Advertiser or Advertiser's Client approved the Availability. Both party's
liability hereunder shall not exceed the amounts paid by Client to Agency
hereunder, and in no event shall either party be liable for consequential
damages.
10. EFFECTIVE DATE. This Agreement shall be effective as of the date of this
Agreement first set forth above.
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11. TERMINATION. Either party may terminate this Agreement by giving the other
party sixty (60) days advance written notice thereof. All rights and duties of
the parties shall continue during such notice period; provided, however, that
Agency shall not obtain any additional Media Contracts for Advertiser' account
during such notice period unless Advertiser provides Agency with written consent
to do so, in which case Advertiser shall be liable for all costs, expenses and
commissions owed to Agency in accordance with the terms hereof. Notwithstanding
any termination of this Agreement, Advertiser shall remain liable to Agency, as
provided by this Agreement for all costs, expenses and commissions for Media
Contracts that have Air Dates prior to, during, or after either the notice
period or the termination of this Agreement.
12. MODIFICATIONS. Advertiser reserves the right to modify, reject, cancel, or
stop any and all plans, schedules, or media purchases. In such event, Agency
shall promptly take all reasonable steps to carry out Advertiser's instructions.
Advertiser agrees to reimburse Agency for all expenses incurred and to indemnify
Agency for all claims and actions by third parties for damages and expenses that
result from carrying out Advertiser's instructions.
13. RECORD INSPECTION. Agency's records relating to ordering and payment of
media and other services hereunder which are billed to Advertiser shall be open
to inspection by Advertiser's authorized representatives during normal business
hours following reasonable notice to Agency for a period of one year.
14. PUBLICITY. Any public announcement or publicity concerning the relationship
established by this Agreement or the services provided hereunder shall be
released only upon mutual written consent of both of the Parties.
15. CONTROLLING LAW. The validity, interpretation, and performance of this
agreement shall be controlled by and construed under the laws of the State of
New York, excluding any conflicts of law principles which would apply the law of
any other jurisdiction. It is hereby agreed that any matter arising under this
Agreement (subject to the arbitration provisions below) and including, without
limitation, any suit to enforce and award under the arbitration provisions
hereof, must be finally adjudged or determined in any court or courts of the
State of New York or of the United States of America, in New York County, New
York, and the parties hereto hereby submit generally and unconditionally to the
jurisdiction of such courts and of any of them in respect to any such matter and
consent to service of process by any means authorized by New York law.
16. ARBITRATION. Any controversy or claim between the parties, including, but
not limited to, those arising out of or relating to this Agreement or any
agreements or instruments relating hereto or delivered in connection herewith
shall be determined by arbitration. The arbitration shall be conducted in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Agreement, and under the
Commercial Rules of the American Arbitration Association. The arbitration shall
commence at a location in New York County, New York to be chosen by the
arbitrators. The arbitrators shall give effect to statutes of limitation in
determining any claim. Any controversy concerning whether an issue is arbitrable
shall be determined by the arbitrators. Judgment upon the arbitration award may
be entered in any court having jurisdiction. The institution and maintenance of
an action for judicial relief or pursuit of a provisional or ancillary remedy
shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief. No provision of this paragraph shall
limit the right of any party to this Agreement to obtain provisional or
ancillary remedies from a court of competent jurisdiction before, after or
during the pendency of any arbitration.
17. ATTORNEY'S FEES. The prevailing Party in any action brought to enforce this
Agreement or any provision hereof, to rescind the same, or to collect damages
for an alleged breach thereof shall be entitled to recover its reasonable
attorney's fees and court costs from the non- prevailing Party.
18. INTEGRATION AND MODIFICATION. This Agreement contains the entire agreement
of the Parties and supersedes any prior understandings and agreements between
them respecting the subject matter of this Agreement. No representations were
made or relied upon by either Party, other than those that are expressly set
forth herein. No agent, employee, or other representative of either Party is
empowered to alter any term of this Agreement, unless done in writing and signed
by an appropriate officer of Advertiser and an executive officer of Agency.
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19. ASSIGNMENT UPON TERMINATION. Upon termination of this Agreement and upon
payment of all amounts due to Agency hereunder, Agency shall assign to
Advertiser all Media Contracts and all Agency's rights and contracts,
agreements, arrangements, or other transactions made with third parties for
Advertiser's account effective on the date of termination or on such other date
as may be agreed upon by the Parties. Advertiser shall assume all obligations
and indemnify and hold Agency harmless from all liability thereunder. If any
contract is not assignable, or consent to assignment is refused, or Agency
cannot obtain a release from its obligations, Agency shall continue performance,
and Advertiser shall meet its obligations, as to the unassigned or unreleased
contracts to Agency as though this Agreement had not been terminated.
20. WAIVER. The failure of either Party to this Agreement to object to or to
take affirmative action with respect to any conduct of the other which is in
violation of the terms of this Agreement shall not be construed as a waiver of
the violation or breach or of any future violation, breach or wrongful conduct.
21. NOTICES. All notices pertaining to this Agreement shall be in writing and
given at the addresses indicated set forth below, or at such other address as
may be designated by the Parties.
ADVERTISER NAME
ADDRESS
CONTACT
PHONE
FAX
EMAIL
CHIEF MEDIA, LLC
00 XXXX 00XX XXXXXX
00XX XXXXX
XXX XXXX, XX 00000
ATTN: XXX XXXXX
212-300-8977-P
212-629-9505-F
XXXXXX@XXXXXXXXXX.XXX
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22. HEADINGS. Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
23. PRESUMPTION. This Agreement, having been fully negotiated and drafted by
both Parties, shall not be strictly construed against either Party.
24. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one in the same instrument.
25. BINDING EFFECT. The provisions of this Agreement shall be binding upon and
inure to the benefit of each of the Parties and their respective successors and
assigns.
IN WITNESS WHEREOF, intending to be legally bound, the Parties have executed
this Agreement as of the day first above written.
CHIEF MEDIA, LLC. ADVERTISER
By:_______________________________ By:_______________________________
Xxx Xxxxx Name
Executive Vice President Title
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