EXHIBIT 10.48
CAMPAIGN MANAGEMENT AGREEMENT
THIS AGREEMENT is entered as of the 1st day of May, 1999 ("May 1st, 1999") by
and between M2 MARKETING AND MANAGEMENT SERVICES, INC., 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxx, Xxxxxxxxxx 00000, a California Corporation (herein after
referred to as Campaign Manager) and, NATIONAL BOSTON MEDICAL, 00 Xxxxxxx Xxxxx,
Xxxxx 0, Xxxxxxx, Xxxxxxxxxxxxx 00000 (herein after referred to as Client).
RECITALS
WHEREAS, Campaign Manager is in the Direct Response Television ("DRTV")
production management business.
WHEREAS, Client desires to utilize the services of Campaign Manager to manage
the DRTV Campaigns for short form and long form DRTV Commercials "Infomercial"
and produced for Client.
NOW THEREFORE, in consideration of the mutual promises, and upon the terms and
subject to the conditions set forth herein, the parties hereto agree as follows:
AGREEMENT
(A) Definitions.
1. "Infomercial" shall mean the infomercial/commercial produced for the
Backstroke Massager, manufactured or distributed by Client.
2. "Vendors" shall mean vendors in the following businesses:
a. Telemarketing (inbound) and/or outbound
b. Media Buying
c. All Home Shopping Opportunities
d. Fulfillment
3. "Term" of this agreement shall mean the period commencing on the Effective
Date, and continuing until either party notifies the other party of its
intent to terminate this agreement pursuant to Section 5 herein.
4. "DRTV Campaigns" shall mean Direct response Television Campaigns to be
utilized in connection with the infomercial.
5. "Territory" shall mean the United States and Canada.
(B) Project.
Client hereby retains Campaign Manager and Campaign Manager agrees that it is
responsible to manage Client's DRTV Campaign utilizing the Infomercial and
to identify and select Vendors, negotiate fees in the best interest of the
Client, (subject to section3), manage Vendors, and report progress and results
to Client.
(C) Testing of Infomercial.
Client retains the right to determine the final telemarketing, fulfillment, and
media agency selection, including the right to select agencies or vendors, other
than those recommended by Campaign Manager herein. Client is under no obligation
to rollout the mass-market airing following the conclusion of the initial
testing) the Infomercial if it is not satisfied with the results of the test
broadcast of the infomercial. Client shall have exclusive control over the
broadcast, performance and transmission of the Infomercial after completion of
the initial testing thereof.
(D) Project Fees.
Client agrees to pay Campaign Manager the fee of $5,000 per month, payable on or
before the first business day of each month, during each month of the Term of
this Agreement, commencing with the month that Campaign Manager initiates its
performance on connection with the project.
In addition to monthly management fee, Client shall pay all hard costs that
Campaign Manager must pay outside Vendors in association with the project.
Campaign Manager shall not incur such costs without prior written consent of
Client.
Campaign Manager acknowledges that Client retains the right to select Vendors
hereunder and to approve the terms and conditions of any agreements or proposals
with such Vendors. Campaign Manager shall not be constituted the agent or legal
representative of Client for any purpose whatsoever. Campaign Manager is not
granted any express or implied right or authority to assume or create any
obligation or responsibility on behalf of or in the name of Client or to bind
Client in any manner. All persons employed or otherwise engaged by Campaign
Manager shall be deemed to be agents, employees, or representatives of Campaign
Manager and Campaign Manager shall be solely responsible for the acts or
omissions of such persons.
(E) Termination and Damages.
Either party may cancel by providing a thirty (30) day written notice to the
other party consistent with the method as described in Paragraph 11, "Notices"
which notice may be sent with or without cause. It shall be a breach of this
Agreement if Client unreasonably prevents completion of the Project. If such
breach occurs, Client shall pay Campaign Manager's actual damages, including,
but not limited to, compensation for time and effort expended, and the actual
amount of any expenses incurred.
(F) Indemnification.
1. Client agrees to indemnify, defend and hold harmless Campaign Manager, its
principals, officers, directors, employees, independent contractors,
agents, successors, assigns and licensees from all suits, claims, demands,
damages, debt, liability, account reckoning, obligation, cost, expense,
lien, action or cause of action, (including, but not limited to, actual
damages, punitive damages, fines and attorneys' fees, whether or not
litigation is commenced) arising out of (i) the product that is to be
managed, (ii) the information, data and material provided by Client to
Campaign Manager and all claims made by Client with respect to the Product,
and (iii) any act or omission by Client in breach by Client of it s
warranties, representations, obligations and/or duties hereunder including,
but not limited to, those related to the Product, including, but not
limited to, the safety and efficacy of the Product , compliance with the
rules, regulations and guidelines of the Federal Trade Commission regarding
false and deceptive advertising practices.
2. Each party notify the other of any demand, suit or claim promptly after the
first party has been formally advised thereof. Campaign Manager and Client
shall each have the right to participate in the defense thereof with an
attorney of their choice at their sole expense.
3. The provisions of this paragraph 6 shall survive the expiration or other
termination of the Term of this Agreement.
(G) Insurance.
Client will obtain and maintain at its sole expense during the Term hereof and
for a period of one (1) year thereafter a comprehensive general liability and
product liability insurance policy with minimum limits of One Million Dollars
($1,000,000.00) per incident and Two Million Dollars ($2,000,000.00) in the
aggregate, with no deductible, naming Campaign Manager, and its respective
officers, directors, and employees as additional insured. Such insurance policy
shall provide that it cannot be canceled or modified subject to insures term.
Client will furnish Campaign Manager with a true and legible copy of the
insurance certificate upon execution of this agreement.
(H) Further Documentation.
The parties hereto agree to take all actions and execute all documents
reasonably necessary to effectuate the terms and intent of this Agreement.
(I) Binding Effect/Assignment.
This Agreement shall be binding upon and insure to the benefit of the parties
and their successors and assigns. This agreement is not assignable without the
prior written consent of the parties.
(J) Invalidity of Provisions.
If any provision of this Agreement shall be adjudged by a court to be void and
unenforceable, the same shall in no way affect any other provision of this
Agreement, or the validity or enforce ability of this Agreement as a whole.
(K) Notices.
All notices permitted or required under this Agreement shall be sent and deemed
given upon (i) personal delivery, (ii) 48 hours after having been dispatched by
telegram, or (iii) five (5) days after having been deposited in the United
States mail, certified, postage prepaid, return receipt requested, and addressed
to the respective parties as follows (or at such other address as may hereafter
be given by one party to the other party as provided by this Paragraph 11):
If to Client: NATIONAL BOSTON MEDICAL
00 Xxxxxxx Xxxxx, Xxxxx 0
Xxxxxxx, Xxxxxxxxxxxxx 00000
If to Campaign Manager: M2 MARKETING AND MANAGEMENT SERVICES, INC.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
(L) Modification.
All modifications to this Agreement must be in writing and signed by each of the
parties.
(M) Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original Agreement, and all of which shall constitute one Agreement to
be effective as of the Effective Date.
(N) Attorney's Fees.
Should any dispute arise as a result of this Agreement, each party hereby agrees
to have the matter settled by the "under the rules" of American Arbitration
Association, without the necessity of a court order. All rights of discovery
allowed by law may be utilized and the prevailing party shall be entitled to an
award of reasonable attorneys' fees and costs in addition to any other relief.
Any decision by arbitration shall be final and binding upon the parties hereto.
(O) Miscellaneous.
All negotiations are merged into this Agreement. This Agreement constitutes the
entire understanding of the parties. There are no oral or other written
agreements between the parties concerning the subject of this Agreement.. This
Agreement shall constitute a binding obligation between the parties and shall be
applicable beyond the term of this Agreement. The agreement is established upon
execution.
(P) Direct Response Industry.
Client acknowledges and agrees that it is well-informed about the financial
risks associated with the Direct Response television advertising industry and
that Campaign Manager makes no warranty, expressed or implied, as to the degree
of success to be achieved by reason of the televising of the Infomercial, nor
shall Client seek to hold Campaign Manager liable with the respect thereto.
Campaign Manager has not made, and does not hereby make, any representation or
warranty with respect to the level of sales and revenue to be derived as a
result of the televising of the Infomercial. Client recognizes and acknowledges
that the level of revenues from sales of the Products of any kind contemplated
by this Agreement is speculative. Client agrees that it shall not make any claim
, nor shall it seek to impose any liability upon Campaign Manager based upon any
claim that more sales, revenues, media exposure, or customers could have been
obtained or better business could have been done than was actually made or done
by Campaign Manager or its successors, licensees and assigns, or that better
business terms, prices or opportunities could have been obtained.
(Q) Representation by Counsel.
Each party hereby represents that it has consulted, or has knowingly waived
consulting, its own legal and tax counsel, accountants, or advisors concerning
the tax and legal consequences of this transaction contemplated by this
Agreement. Each party represents that it has relied solely upon the advice of
its own advisors and not on any representations or warranties of the other party
in connection with such consequences.
(R) Confidentiality.
Campaign Manager agrees that all financial marketing, sales, operation and other
commercially sensitive information, materials and knowledge acquired or learned
from Client in connection with this Agreement will be held as confidential, not
disclosed and preserved by Campaign Manager in strictest confidence. Campaign
Manager further agree that such information will be imparted to its employees,
agents, or third parties only on a "need to know" basis and that Campaign
Manager will inform each such employee, agents, or third parties of his or her
confidentiality obligations hereunder. Campaign Manager will return all
information provided by Client upon Completion/Termination of this Agreement.
The obligations of this paragraph do not apply to information which:
1. At the time of disclosure was previously known or in the public domain;
2. Subsequent to the time of disclosure became part of the public domain
through no fault of Campaign Manager, its agents, third parties, or
employee;
3. Is obtained by Campaign Manager from a third party not under obligation to
Client; or
4. Client, in writing, authorized Campaign Manager to release it.
Each party represents and warrants the authority of the undersigned to enter
into this Agreement and bind the respective parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
M2 MARKETING AND
MANAGEMENT SERVICES, INC. By: /s/ Xxxx X. XxxXxxxxx
A California Corporation Title: Senior Vice President
Date: 7/10/99
NATIONAL BOSTON MEDICAL By: /s/ Xxxxxx Xxxxx
A Nevada Corporation Title: CEO
Date: 7/13/99
Addendum to M2 Marketing and Management Services, Inc.
Contract with National Boston Medical, Inc.
National Boston Medical, Inc. agrees to give and M2 agrees to accept the
following shares of National Boston Medical, Inc Common stock if the following
criteria are met:
Infomercial Period Unit # of shares
July '99 to Sept. '99 50,000 25,000
75,000 27,500
Sept. '99 to Dec. '99 60,000 30,000
90,000 45,000
Jan. 2000 to March 2000 60,000 30,000
90,000 45,000
April 2000 to June 2000 50,000 25,000
75,000 37,500
Retail: M2 will receive a bonus of 20% of NBM, Inc. Common stock of the actual
number of retail units sold. Example 100,000 retail units will result in the
awarding of 20,000 shares of NBM, Inc. stock.
Term of the agreement are strictly confidential and this agreement can be
terminated if shared with any third party without the express written consent of
National Boston Medical, Inc.
/s/ Xxxxxx Xxxxx /s/ Xxxx X. XxxXxxxxx
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Xxxxxx Xxxxx for National Xxxx XxxXxxxxx for M2
Boston Medical, Inc.
June 19, 1999 6/17/99
Date Date
