CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
EXHIBIT 10.35
AGREEMENT
between
Bronnercom, LLC
and
General Motors Corporation
January 1, 2000
TABLE OF CONTENTS
1. Services
2. Cost Estimates; Authorization; Reports
3. Bronnercom Review Obligations; Approval for Publication
4. Invoices and Payment
5. Right of Audit
6. Term and Termination
7. Termination of Authorized Services
8. Ownership of Materials
9. Confidentiality
10. Insurance
11. Defense and Indemnity
12. Loaned Vehicles
13. Notices
14. Utilization of Minority Contracts
15. Relationship of Parties
16. General Provisions
16.1 Compliance with Laws
16.2 Waiver
16.3 Settoff/Recoupment
16.4 Governing Law
16.5 Non-Assignment
16.6 Severability
16.7 Modification
16.8 Entire Agreement
Exhibit A - Services and Compensation
Attachment 1 - General Conditions
Exhibit B - Authorizations and Approvals
Exhibit C - Reports
Exhibit D - Travel Guidelines
Exhibit E - Proof of Services
Exhibit F - Intellectual Property Rights Agreement
Exhibit G - Property Disposal
Exhibit H - Loan of Vehicle Receipt
Exhibit I - Notices
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MARKETING & ADVERTISING SERVICES AGREEMENT
THIS AGREEMENT is entered into this 1st day of January, 2000 by and between
Bronnercom, LLC and General Motors Corporation, and relates to the marketing
and/or advertising services identified on Exhibit A ("Services") which may
hereafter be furnished by Bronnercom to General Motors.
1. Services
1.1 Bronnercom will provide Services on a non-exclusive basis for General
Motors. It is expressly understood that General Motors is not obligated
under this Agreement to purchase any services from Bronnercom or to issue
to Bronnercom any "Authorization" (as defined in Exhibit B), nor is
Bronnercom obligated to accept any Authorization issued by General Motors.
1.2 Bronnercom will render Services to General Motors for the effectiveness of
advertising, merchandising, sales promotion and other such matters assigned
to Bronnercom pursuant to Authorizations which may be issued from time to
time by General Motors. Xxxxxxxxxx agrees to cooperate with General Motors
and to use its best skill and judgment in the performance of Services.
Bronnercom will perform Services timely, diligently and to the reasonable
satisfaction of General Motors, in an efficient and economical manner
consistent with the best interest of General Motors.
2. Cost Estimates; Authorization; Reports
2.1 Xxxxxxxxxx agrees to prepare and furnish, within ten (10) business days and
in such detail as may be reasonably required by General Motors, an itemized
cost estimate of all Services being requested by General Motors for which a
charge is to be made by Bronnercom. Such estimates will be in writing to
the extent reasonably possible, however, if because of time constraints, a
written estimate is not possible, a verbal estimate is acceptable, provided
that it is promptly forwarded to General Motors in writing. No fee for
Services will be payable by General Motors, unless an Authorization has
first been approved by an appropriate General Motors representative, or his
or her designee, as identified in Exhibit B. Such approvals will be in
writing to the extent possible, however, if time limitations make this
impossible, an oral approval is acceptable, provided that such oral
approval is promptly confirmed in writing by Bronnercom to General Motors.
When directed by General Motors, Xxxxxxxxxx will obtain input from a
production consultant before General Motors approval is requested.
2.2 No additions to, changes in or deletions from Services authorized under
this Section 2 will be made without the prior written approval of the
appropriate General Motors representative (or his or her designee);
provided, however, that a representative of Bronnercom may authorize an
emergency change in the field when such a change is deemed to be in the
best interest of General Motors and the appropriate General Motors
representative(s) is unavailable. Any such change made by Bronnercom will
be
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communicated to General Motors as soon as possible, and in any event within
two (2) business days, at which time written approval must be secured.
2.3 Bronnercom may obtain verbal approval from General Motors for amounts which
exceed the cost estimate(s) by the lesser of ten percent (10%) or ten
thousand dollars ($10,000). However, written confirmation of such verbal
approval must be obtained from General Motors within two (2) weeks.
Requests for written confirmation of verbal approval may be accumulated and
submitted on one revised cost estimate for each job number.
2.4 Bronnercom will provide General Motors with the reports identified in
Exhibit C, at the frequency indicated.
3. Bronnercom Review; Approval for Publication
3.1 No advertising, merchandising, sales promotion, research or other material
will be released, or in any manner placed or published in any medium,
unless (1) the material has been reviewed by appropriate Bronnercom
personnel, including Bronnercom legal counsel or legal compliance officer;
(2) the material has also been reviewed by appropriate General Motors legal
counsel; (3) the material in its to-be-released form has been provided to
General Motors and a written authorization obtained from the individual
identified in Exhibit B or such individual's designee. If, because of time
constraints, a written authorization cannot be obtained, a verbal
authorization is acceptable provided that such verbal authorization is
immediately confirmed in writing by Bronnercom to General Motors.
3.2 Bronnercom will establish and maintain a procedure to ensure (1) that an
appropriate level of legal review of claims and substantiation is available
at, or on behalf of, Bronnercom; (2) that adequate substantiation exists
for all claims; and (3) that all legal requirements (e.g., required
disclosures) applicable to the advertising, merchandising, or other
materials are met. Bronnercom will judge the adequacy of claim
substantiation in light of its internal policies and applicable laws,
rules, regulations and interpretations of them. General Motors will provide
Bronnercom with a copy of all current consent orders between GM and the
Federal Trade Commission and/or various states which apply to General
Motors' advertising.
3.3 General Motors, at the request of Bronnercom, will provide Bronnercom with
substantiation for claims and representations regarding its products or
services and industry made in all advertising and other materials. General
Motors will indemnify Bronnercom pursuant to Section 11.2 with respect to
the accuracy of any material or information furnished to Bronnercom to
substantiate claims or representations. Bronnercom will maintain adequate
substantiation of all claims and representations in all advertising and
other material published by Bronnercom on file until the end of the next
model year (current model year plus the next model year), except for
substantiation of comparative handling claims which must be retained until
the end of four model years (current model year plus three model years).
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3.4 Nothing in this Agreement will be deemed to require Bronnercom to undertake
any act or perform any services, which in its judgment, would be
misleading, false, libelous, unlawful or otherwise prejudicial to General
Motors' or Bronnercom's interests.
4. Invoices and Payment
4.1 Agency compensation is based on a fixed fee which shall be billed monthly
on a pro rata basis. Agency shall be paid a performance bonus, the criteria
of which shall be determined by the parties and set forth in Exhibit A or
any other subsequent General Motors Division compensation agreements. If
bonus criteria is not developed and agreed to by the parties, then a
performance bonus will not be paid and Bronnercom will continue to be paid
based on the fixed fee agreed to in Exhibit A or subsequent General Motors
Division compensation agreements.
4.2 Upon completion of Services or agreed upon segments thereof as set forth in
the estimates, and acceptance by General Motors, General Motors agrees to
pay Bronnercom those amounts, if any, set forth in Exhibit A for Service(s)
rendered by Bronnercom pursuant to General Motors' Authorization(s).
Bronnercom will issue invoices to the attention of General Motors'
department which authorized such Service(s). Unless otherwise agreed to in
the Authorization, remittances shall be paid as follows: Invoices for
media, pre-paid postage, and customer incentive redemptions received the
1st through 15th of the month will be paid by the 25th of the month. Such
invoices received the 16th through the 31st will be paid by the 10th of the
month following the month billed. All other invoices received during a
month will be paid in accordance with GM's Multilateral Netting System
(MNS-2) which provides, on average, that payment shall be made on the 2nd
day of the 2nd month.
4.3 Upon the request of General Motors, supporting subcontractor invoices, upon
which the charges of Bronnercom are based, will accompany any Bronnercom
invoice. If Xxxxxxxxxx's invoice includes allowable charges for travel and
subsistence, whether incurred by the subcontractor or by Bronnercom
personnel, these will also be included with such invoice documentation
fully supporting such charges, supplied in accordance with Exhibit A, and
be in accordance with the Travel Guidelines set forth in Exhibit D,
attached to and made a part of this Agreement.
4.4 Bronnercom will review all invoices from subcontractors to ensure that
appropriate supporting documentation has been received and verification of
performance has been completed, prior to submitting an invoice to General
Motors for the Services provided by the subcontractor.
4.5 Bronnercom will prepare and furnish to General Motors with each invoice, a
written explanation of amounts which exceed the approved cost estimate(s)
by the lesser of ten percent (10%) or ten thousand dollars ($10,000).
General Motors is liable for amounts which exceed the approved cost
estimate(s) only if Xxxxxxxxxx has complied with the
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procedures of Section 2.2 or 2.3 above, or if such overages are due to
causes beyond the control of Bronnercom and its subcontractors or suppliers
and without their fault or negligence.
4.6 Provided that the "Proof of Services" requirements set forth in Exhibit E
have been fulfilled, General Motors will pay Bronnercom's invoices in
accordance with the payment terms set forth on the Authorization, or if no
such payment terms are stated on the Authorization, then as stated in
Exhibit A.
5. Right of Audit
Bronnercom will keep a separate account of the cost of Services based on
its customary accounting procedures. This account is subject to audit by
General Motors during Bronnercom's normal business hours and upon
reasonable advance notice to Bronnercom, at any time during the progress of
and after completion of all Services. Bronnercom will keep such account and
maintain its records in a manner to facilitate such audit and agrees that
such audit may be used as a basis for settlement of disputes which might
arise regarding the propriety of charges, if any. For this purpose,
Xxxxxxxxxx agrees to preserve all pertinent ledgers, payroll data (confined
to timekeeping records for projects billed on an hourly basis), books,
vouchers, audit reports and all other relevant documents for the purpose of
auditing charges and/or all allocations related to this Agreement, for a
period from the final payment of invoice to the longer of either (i) the
current year plus three (3) calendar years, or (ii) the last closed GM tax
year. Notwithstanding the above, Bronnercom is not required to provide or
make available to client for such audit personnel records, individual
payroll or salary data or information that could be used to calculate
individual payroll or salary data. In addition, Xxxxxxxxxx shall have the
right to redact the names of other clients from the records. Xxxxxxxxxx
also agrees to use reasonable efforts to include a provision in each
contract it enters into with others relating to Services that requires the
foregoing retention of records by such subcontractors and grants to
Bronnercom, its agents and representatives, and to General Motors, a
similar right to audit such charges. In the event Bronnercom is unable to
secure the inclusion of such audit rights and record retention by its
subcontractors, prior to entering into any contract with others relating to
Services, Xxxxxxxxxx will promptly obtain and follow General Motors' advice
with respect thereto.
6. Term and Termination
6.1 The term of this Agreement will commence as of the date first above written
and will continue in effect thereafter until terminated, with or without
cause, by either party by giving the other party at least ninety (90) days
prior written notice of the date of such termination. Notwithstanding the
foregoing, the terms and provisions of this Agreement will govern all
Authorizations issued by General Motors and accepted by Bronnercom prior to
the termination of this Agreement, provided that such Authorizations are
not terminated in accordance with Section 7 below.
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6.2 On or before December 31 of each year during the term of this Agreement,
General Motors and Bronnercom will review the services provided by
Xxxxxxxxxx and the compensation received by it as set forth in Exhibit A
and will, as agreed to by the parties, prepare, date and execute an amended
Exhibit A for the following year.
7. Termination of Authorized Services
7.1 Notwithstanding anything to the contrary contained in this Agreement or in
any Authorization, and in addition to General Motors' right to terminate in
Section 6.1, General Motors may terminate, at any time, with or without
cause, any portion of Services under any Authorization by giving Xxxxxxxxxx
written notice, which notice will state the portion of the Services to be
terminated and the effective date of such termination. If the termination
by General Motors, in whole or in part, of any General Motors' Division
scope(s) of work represents a majority of the Services for such Division
and requires Bronnercom to re-assign personnel or reduce overhead for such
Division, General Motors will allow at least a 90 day period for Bronnercom
to make an orderly transition for redeploying or terminating personnel and
reducing overhead. During this 90 day period, Bronnercom will transition
resources in good faith to minimize fee compensation. Upon receipt of such
notice of termination, and except as otherwise directed by General Motors,
Bronnercom will:
(a) stop all work on the Services on the date(s) and to the extent
specified in the notice;
(b) place no further orders or enter into contracts for materials,
services, facilities, media time or space or otherwise, except as may
be necessary for the completion of such portion of the Services that
have not been terminated;
(c) immediately advise General Motors of all material orders or contracts
that in any way relate to the performance of the Services terminated
by the notice;
(d) terminate all orders or contracts as may be requested by General
Motors and, with the prior approval of General Motors, use its best
efforts to settle all outstanding liabilities or claims arising out of
the termination of such orders or contracts;
(e) assign to General Motors, or persons designated by General Motors, all
rights, title and interest of Bronnercom in and to such orders or
contracts as may be requested by General Motors, including all fees
and commissions to be received by Bronnercom pursuant to the terms of
any such order or contract; provided, however, that, with respect to
any Services which would normally have been performed by Xxxxxxxxxx,
all fees commissioned on any audio or audio/visual advertising (e.g.,
radio, TV, cable, etc.) placed up to the effective date of termination
and run during such period, or on any print advertising whose closing
dates are prior to the effective date of termination, will be paid to
Bronnercom, regardless of who may have planned, prepared or placed
such advertising;
7
(f) subject to the rights of third parties permitted under Section 8
below, and subject to payment of amounts specified in Section 7.2, as
directed by General Motors and at General Motors' sole expense,
transfer title and deliver to General Motors, (1) all work in process,
completed work, supplies and other items produced as part of, or
acquired in connection with, the performance of the Services
terminated by such notice and (2) completed or partially completed
drawings, films, photographs, information or other tangible property
which, had the Authorization been fulfilled, would have been furnished
to General Motors;
(g) complete performance of Services, or portions thereof, which have not
been terminated by the notice; and
(h) take such further action, and execute such further instruments, as may
be reasonably necessary or as General Motors may reasonably direct,
for the protection and preservation of all work performed by or for
Bronnercom for General Motors or property in the possession of
Bronnercom and in which General Motors has or may be entitled to
acquire an interest.
7.2 If General Motors terminates all or any portion of an Authorization
pursuant to Section 7.1, or this entire Agreement pursuant to Section 6.1,
except with respect to Bronnercom's breach of such Authorization or this
Agreement, if any, General Motors will pay to Bronnercom the following
amounts:
(a) compensation pursuant to Section 4 of this Agreement for all Services
completed and accepted by General Motors as of the effective date
specified in the notice of such termination, recognizing that if the
termination by General Motors, in whole or in part, of any General
Motors' Division scope(s) of work represents a majority of the
Services for such Division and requires Bronnercom to re-assign
personnel or reduce overhead for such Division, General Motors will
allow at least a 90 day period for Bronnercom to make an orderly
transition for redeploying or terminating personnel and reducing
overhead. During this 90 day period, Bronnercom will reallocate
resources in good faith to minimize applicable fees.
(b) reimbursement for all non-cancelable commitments or contract
cancellation charges and settlement costs, if any, actually paid by
Bronnercom to supplier(s), contractor(s) and/or subcontractor(s) with
the prior approval of General Motors; and General Motors will hold
Bronnercom harmless from any further liability to third party
suppliers (including all reasonable legal fees and costs) arising from
the termination of Services; and
(c) reimbursement for all necessary and documented expenses or costs
incurred and actually paid by Bronnercom pursuant to sub-paragraphs
(f) and (h) of Section 7.1 above for the transfer and the protection
and preservation of all work performed by or for Bronnercom for
General Motors.
8
7.3 In no event will General Motors be liable for, and General Motors will make
no payment to Bronnercom or its subcontractors with respect to loss of
anticipated profit or commission and unabsorbed overhead on any Services
terminated under this Section.
7.4 Within ninety (90) days from the effective date of termination,
Bronnercom will submit a comprehensive termination claim to General Motors,
with sufficient supporting data to permit General Motors to audit such
claim within days, and Bronnercom will promptly furnish such
supplemental and supporting information as General Motors may reasonably
request. General Motors, or its authorized agents, will have the right to
audit as permitted under section 5, and examine all books, records,
facilities, work, material, inventories and other items relating to any
termination claim of Bronnercom. Upon final settlement of any such
termination claim, Bronnercom will furnish General Motors with an
appropriate release of all claims arising from termination of an
Authorization or this Agreement.
8. Ownership of Materials
The following are applicable to all materials, services, ideas and concepts
adopted and paid for by General Motors.
(a) Subject to Subsection (e) and (i) below, Xxxxxxxxxx agrees that all
software, reports, manuals, names, logos, programs, compositions,
photographs, illustrations, tapes and any other material prepared by
Bronnercom employees under this Agreement and all other work products
of Bronnercom employees made or created under this Agreement belong
exclusively to General Motors.
(b) Subject to Subsection (e) and (i) below, Xxxxxxxxxx agrees that all
software, writings, compositions, photographs, illustrations,
discoveries, designs, ideas, inventions and improvements whether
copyrightable, patentable or not, that are written, conceived,
created, discovered or made by Bronnercom employees or subcontractors
in the course of the work done under this Agreement will be promptly
disclosed to General Motors and will become General Motors' sole
property.
(c) Xxxxxxxxxx agrees to sign and execute, require employees to sign and
execute, and make best efforts to have subcontractors sign and
execute, all assignments (including waiver of moral rights), and other
papers necessary to vest the entire right, title and interest in such
software, writings, compositions, photographs, illustrations, names,
logos, music, lyrics designs, ideas, inventions, improvements or
discoveries in General Motors, and do all lawful acts and sign all
assignments and other papers General Motors may reasonably request
relating to applications for patents, trademarks and copyrights, both
United States and foreign, or relating to the conduct of any
opposition, litigation or other controversy in connection therewith,
provided all expenses incident to the filing of such applications, the
prosecution such applications, and the conduct of any opposition,
litigation or other controversy will be borne by General Motors.
9
(d) Xxxxxxxxxx agrees to require Bronnercom employees, and make best efforts to
have all subcontractors assigned to perform work for General Motors, sign
an Intellectual Property Rights Agreement or an equivalent document,
subject to General Motors approval. Such approval has been granted for the
documents attached as Exhibit X. Xxxxxxxxxx further agrees to maintain such
signed documents on file throughout the term of this Agreement and upon
request of General Motors to deliver them to General Motors upon
termination of this Agreement.
(e) In exceptional instances, Xxxxxxxxxx may not recommend or be able to secure
an assignment to General Motors of exclusive ownership in the rights to a
work, which encompasses all original works or authorship, literary,
dramatic, musical, artistic and certain other intellectual works. Those
instances will be mutually agreed upon in writing by General Motors and
Bronnercom prior to any contractual arrangements being implied or entered
into by Bronnercom and General Motors, or Bronnercom on behalf of General
Motors. General Motors and Bronnercom together, or Bronnercom on behalf of
General Motors, will execute a contract containing all final terms and
conditions of the limited license interest or restricted usage on such
works accorded to General Motors.
(f) Xxxxxxxxxx agrees to submit copies of all photographs and transparencies as
well as submitting copies of any other works as directed by General Motors
which are created or acquired for purposes of performing this Agreement to
the GM Media Archives along with the name, address and telephone number of
the copyright owner and any restrictions on future use by General Motors as
provided for in Paragraph 8(e) above.
(g) Any material or ideas prepared for or submitted to General Motors, but not
adopted and paid for by General Motors (regardless of whether the physical
embodiment of the creative work is in General Motors' possession in the
form of copy, artwork, plates, recording, films, tapes, etc.), remain the
property of Bronnercom and may be submitted by Bronnercom to other clients
for their use, provided that such submission or use does not involve the
release of any confidential information regarding General Motors' business
or methods of operations.
(h) At the conclusion of each job, Bronnercom will advise General Motors of any
remaining special equipment, props or wardrobe material and will dispose of
such items in accordance with Exhibit G.
(i) Notwithstanding provisions contained in this agreement to the contrary,
General Motors acknowledges that Xxxxxxxxxx possesses general knowledge,
experience, skill, talent, ideas, concepts, know-how, algorithms, libraries
of code and other information the field in which it will provide the
Services and that such
10
information was or will be developed or acquired by Bronnercom other than
on the account of General Motors, including without limitation,
Bronnercom's Customer Base Management (CBM) model and ancillary Behavior
Optimization Process (BOP) (all the foregoing, whether developed or
acquired prior to or concurrent with the Services and Deliverables,
referred to as "Agency Information"). General Motors further acknowledges
and agrees that such Agency Information may be incorporated, in whole or in
part, into the General Motors' work, and that, notwithstanding any other
provision of this Agreement, Bronnercom retains all rights in and to the
Agency Information subject only to a non-exclusive, non-transferable
license granted to General Motors to use such Agency Information, but only
to the extent that Agency Information may be embodied in the General Motors
work as contemplated by this agreement. To the extent that General Motors'
work or Agency Information has entered the public domain (due to, for
example, publication) through no breach by Bronnercom of its obligations to
General Motors, Bronnercom shall have the same rights to such General
Motors' work as it would have under the law, absent this Agreement and the
relationship described in this Agreement.
9. Confidentiality
9.1 Bronnercom covenants and agrees that, both during the term and after the
termination of this Agreement, Bronnercom will not disseminate, reveal or
otherwise make available to any person, or use for its own purposes, any of
General Motors non-public information learned by it during the term of this
Agreement regarding, but not limited to, trade secrets and confidential
information, advertising matters, ideas, plans, techniques, accounts,
products, business, customers or methods of operation, except as otherwise
required in the performance of its obligations under Authorizations, or
except as may be required by any law, court, legal process or other
regulatory or examining authorities (whether governmental or otherwise), or
except information that becomes public through no fault of Bronnercom.
Bronnercom will use its best efforts to include a confidentiality provision
in each contract it enters into with others relating to Services which is
substantially similar to the foregoing sentence. Any exception to this
Section will be at the direction of General Motors and must be documented
in writing.
9.2 The provisions of this Section 9 will survive the termination of this
Agreement for a period of three (3) years from the effective date of any
such termination. Upon termination of this Agreement, all documents in
Bronnercom's possession containing such information will be returned to
General Motors or destroyed, as General Motors may elect. Notwithstanding
the foregoing, Bronnercom may retain a copy of the documents for archival
purposes.
10. Insurance
10.1 During the term of this Agreement, Bronnercom will maintain policies of
insurance in the following types and amounts:
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(a) Workers compensation in an amount not less than the statutory limits
for the state(s) in which Services are to be performed, including
employer's liability insurance in an amount not less than $1,000,000.
If Bronnercom is self-insured, a certificate of the state in which
the Services are to be performed must be furnished by such state
agency directly to General Motors.
(b) Commercial general liability insurance, including contractual
liability coverage, with minimum limits of liability of not less than
$10,000,000 per occurrence.
(c) Automobile liability insurance (including owned, non-owned, and hired
vehicles), with minimum limits of not less than $10,000,000 per
occurrence.
(d) Advertiser's liability insurance, including contractual liability
coverage, with minimum limits of not less than $10,000,000 per
occurrence.
10.2 All insurance policies will be issued by reputable insurance companies
satisfactory to General Motors. If such policies do not contain a
separation of insureds provision, they will be endorsed to provide cross-
liability coverage. Bronnercom will maintain all such required insurance
in force unless agreed to in writing by General Motors.
10.3 Before Services are started, Bronnercom will furnish to General Motors
certificates(s) of insurance evidencing compliance with the insurance
requirements. Each certificate will: (1) set forth the amount of coverage,
policy number and date of expiration, (2) name General Motors as an
additional insured under all of the above policies, except those listed in
Section 10.1(a) but only with respect to operations performed by
Bronnercom for General Motors under this Agreement, (3) provide that such
insurance carrier will not terminate, cancel, or materially modify such
insurance coverage without thirty (30) days prior written notice to
General Motors, and (4) state that such insurance is primary in coverage
to any other insurance or self-insurance programs which may be available
to General Motors Corporation.
10.4 The purchase of insurance coverage and furnishing of certificate(s) will
neither modify Bronnercom's obligation to indemnify General Motors under
Section 11.1 nor be in satisfaction of Bronnercom's liability under this
Agreement or any Authorization.
11. Defense and Indemnity
11.1 Xxxxxxxxxx agrees to indemnify and save harmless General Motors
Corporation, its officers, directors and/or employees from and against any
and all claims, demands, and/or causes of action, and all damages,
liabilities, judgments, costs (including reasonable settlement costs) and
expenses associated therewith (including reasonable attorneys' fees and
costs), arising from:
(i) any act or omission by Bronnercom, or its employees or agents or
subcontractors
12
in the course of performing Services pursuant to this Agreement,
whether or not within the scope of performing this Agreement;
(ii) any material breach by Bronnercom of any of the representations, terms
or conditions of this Agreement;
(iii) except to the extent covered by Section 11.2, any advertising,
merchandising, publicity or other materials prepared by or on behalf
of Bronnercom which result in any alleged or actual:
(a) libel, slander, defamation or product disparagement;
(b) infringement of trademark, copyright, title, slogan or other
property rights with respect to materials created by Xxxxxxxxxx
or obtained by Bronnercom from third parties;
(c) piracy, plagiarism, unfair competition or idea misappropriation
with respect to materials created by Xxxxxxxxxx or obtained by
Bronnercom from third parties; or
(d) invasion of the right of privacy or publicity;
(iv) any claim by a third party based upon an actual or alleged contractual
relationship with Xxxxxxxxxx when acting as an independent contractor,
or when acting as General Motors' agent if Xxxxxxxxxx has exceeded the
authority granted to it by General Motors.
11.2 General Motors agrees to indemnify and save harmless Bronnercom, its
officers, directors and/or employees from and against all claims, demands,
and/or causes of action, and all damages, liabilities, judgments, costs
(including reasonable settlement costs) or expenses associated therewith
(including reasonable attorneys' fees and costs) arising from any
information or material directly or indirectly supplied by GM, or which is
based on material or information relating to General Motors' products, or
products of its competitors used by Bronnercom for the provision of its
Services and which General Motors reviewed and approved before the public
dissemination of such information or material, including any product's
liability claims. Approval obtained from General Motors based upon
statements or representations made by Bronnercom as to the accuracy or
truthfulness of advertising content will be deemed to have been published
without General Motors' approval.
11.3 With respect to the defense of any claim or litigation to which these
indemnification provisions apply, the indemnifying party, at its own
expense, will have the right to select counsel of its own choice and direct
defense of the action and any settlement as it deems proper. Upon request
of the indemnified party, the other party will allow the indemnified party,
at its own expense, to participate in the defense.
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11.4 Each party will give the other party prompt written notice in the event of
the receipt of knowledge of any claim against either of the parties to
which these indemnification provisions apply, and will cooperate with the
other and assist in the defense of such claim.
11.5 The obligations contained in this Section 11 will continue in full force
and effect notwithstanding termination of this Agreement or any
Authorization for any reason.
12. Loaned Vehicles
The following provisions apply in the event vehicles are furnished to
Bronnercom by General Motors ("Loaned Vehicles"):
(a) Xxxxxxxxxx agrees to obtain from each individual permitted to drive a
Loaned Vehicle, a signed copy of (1) the Vehicle Terms and Conditions
and Vehicle Receipt and (2) General Motors Safe Driving Conduct
Requirements (attached as Exhibit H). Xxxxxxxxxx will retain the
executed copy for a period of three (3) years and will provide it to
General Motors at General Motors' request.
(b) Xxxxxxxxxx agrees to obtain and maintain, at its own expense, the
automobile liability insurance required in Section 10.1(c). Bronnercom
will also provide comprehensive (fire and theft) and collision
coverage on Loaned Vehicles (other than prototype vehicles).
(c) Bronnercom will return Loaned Vehicle in the same condition as
delivered, reasonable wear and tear excepted, to the location
designated by General Motors. All repairs necessary to restore Loaned
Vehicles to such condition will be performed at a facility approved by
General Motors, at the expense of Bronnercom. If, in General Motors'
opinion, a Loaned Vehicle cannot or should not be repaired based upon
General Motors Corporation's policy for repairing/scrapping damaged
vehicles, then the Loaned Vehicle must be returned to General Motors
and Bronnercom will pay General Motors the Loaned Vehicle's value,
based upon the following formula: The amount General Motors
Corporation would have received if the Loaned Vehicle had been sold at
auction the month the Loaned Vehicle was damaged based on a similar
make and model year vehicle with similar mileage, as determined by GM
NAO Fleet Operations Auction Results' Report, less $4,000.
13. Notices
Except as otherwise specifically provided for in this Agreement, all
notices required or permitted to be given by either party under or in
connection with this Agreement will be in writing and will be deemed duly
given when personally delivered or sent by registered or certified mail,
return receipt requested, postage prepaid, or by prepaid recognized
14
overnight delivery service, or by facsimile confirmed by letter, to the
other party at the address set forth in Exhibit I, or such other address
as may be requested by either party by like notice.
14. Utilization of Minority Contractors
14.1 It is the policy of General Motors Corporation that minority business
enterprises will have the opportunity to participate in the performance of
General Motors Corporation contracts. As a provision of this Agreement and
any Authorization issued to Bronnercom under this Agreement, Xxxxxxxxxx
agrees to use reasonable efforts to carry out this policy. For the
purposes of this Agreement, minority business enterprises will be as
stated in U.S. Executive Order 11625 dated October 13, 1971. Bronnercom
may rely upon written representations by subcontractors regarding their
status as minority business enterprises in lieu of an independent
investigation.
14.2 Upon award and as a provision of such Authorization, Bronnercom will
identify the minority subcontractors who will be utilized by stating the
subcontract bid amount, description of the work, subcontractor name and
address and the principal person to contact. Bronnercom will also include
a copy of the written representation received by Bronnercom from the
minority business enterprise concerning minority ownership.
15. Relationship of Parties
15.1 Bronnercom expressly acknowledges that it is and in the performance of
this Agreement or any Authorization that it will act as an independent
contractor. When acting as an independent contractor, Xxxxxxxxxx will
enter into, and assume the liability for, contracts made or placed with a
third party required for performing the services included in this
Agreement. However, General Motors specifically reserves the right to
approve any and all subcontractors employed by Bronnercom. All contracts
made or placed by Xxxxxxxxxx with a third party, when Xxxxxxxxxx is acting
as an independent contractor, will include a provision that states that
the third party agrees that it will hold Bronnercom solely liable for the
fulfillment of all obligations under the contract.
15.2 Commitments or agreements will include General Motors only if General
Motors determines that there would be a specific benefit to be gained by
being a party to the contract or permitting Bronnercom to act as General
Motors' limited agent. In such instances, Bronnercom will provide General
Motors with written estimates of all costs and charges to be incurred by
third-party suppliers and will obtain General Motors' approval prior to
such costs and charges being incurred. Bronnercom will notify all such
third-party suppliers of General Motors' identity as principal. In
addition, such third-party suppliers will be required to bill separately
for all materials supplied on General Motors' behalf and will charge sales
tax as appropriate. The costs and charges of third-party suppliers
incurred by Bronnercom on General Motors' behalf will be paid by General
Motors with the commission or markup, if any, as set forth in Exhibit A.
Title to all materials purchased from third-party suppliers will pass to
General Motors upon
15
payment by General Motors to Bronnercom for such materials as set forth in
Section 8.
16. General Provisions
16.1 Compliance with Laws. Xxxxxxxxxx agrees to comply with the applicable
provisions of any federal, state or local law or ordinance and all lawful
orders, rules and regulations issued thereunder and any provisions,
representations or agreements, or contractual clauses required thereby to
be included or incorporated by reference or by operation of law in this
Agreement. Without limiting the foregoing, Xxxxxxxxxx will be responsible
for complying with all requirements of federal and state social security,
unemployment compensation and tax withholding laws, and all applicable
federal, state and local laws and regulations pertaining to (1)
immigration, (2) occupational health and safety of its employees, (3) wages
and hours of employment, and (4) equal employment opportunity and
employment practices, and in this connection, agrees that it will not
discriminate in its employment practices due to age, disability, sex, race,
color, religion, creed or national origin.
16.2 Waiver. Waiver by either party of any breach or failure to comply with any
provision of this Agreement by the other party will not be construed as, or
constitute, a continuing waiver of such provision, or a waiver of any other
breach of or failure to comply with any other provision of this Agreement.
16.3 Setoff/Recoupment - In addition to any right of setoff or recoupment
provided by law, all amounts due to Bronnercom shall be considered net of
indebtedness of Bronnercom and its affiliates/subsidiaries to General
Motors and its affiliates/subsidiaries; and General Motors shall have the
right to setoff against or to recoup from any amounts due to Agency and its
affiliates/subsidiaries from General Motors and its
affiliates/subsidiaries.
16.4 Governing Law. This Agreement will be construed and enforced in accordance
with, and governed by, the laws of the State of Michigan, without reference
to its choice of law rules.
16.5 Non-assignment - Neither party may assign this Agreement without the prior
written consent of the other party.
16.6 Severability - If any term(s) of this Agreement is invalid or unenforceable
under any statute, regulation, ordinance, executive order or other rule of
law, such term(s) shall be deemed reformed or deleted, as the case may be,
but only to the extent necessary to comply with such statute, regulation,
ordinance, order or rule, and the remaining provisions of this Agreement
shall remain in full force and effect.
16.7 Modification. No waiver, alteration or modification of any of the
provisions of this Agreement will be binding upon either party unless in
writing, signed by a duly authorized representative of each, and
conspicuously states that it amends this Agreement.
16
16.8 Entire Agreement. This Agreement, together with all attachments and
exhibits to this Agreement, constitutes the entire agreement between
General Motors and Bronnercom with respect to the subject matter of this
Agreement and will supersede all prior oral or written representations and
agreements.
IN WITNESS WHEREOF, this Agreement has been executed in multiple counter-parts
as of the day and year first above written by Xxxxxxxxxx and General Motors by
their duly authorized representatives.
Bronnercom, LLC General Motors Corporation
By By
-------------------------------- ------------------------------
Title: Title:
Exhibits:
Exhibit A - Services and Compensation
Attachment 1 - General Conditions
Exhibit B - Authorizations and Approvals
Exhibit C - Reports
Exhibit D - Travel Guidelines
Exhibit E - Proof of Services
Exhibit F - Intellectual Property Rights Agreement
Exhibit G - Property Disposal
Exhibit H - Loan of Vehicle Receipt
Exhibit I - Notices
17
Exhibit A
Services and Compensation - Pontiac - GMC (Commercial)
This Exhibit A sets forth the compensation which will be paid by Pontiac - GMC
to Bronnercom; it is the intent of the parties that this Exhibit A be attached
to and become part of the Advertising Bronnercom Agreement between General
Motors and Bronnercom dated as of January 1, 1999.
Bronnercom will be compensated on a fixed-fee basis for the agreed upon services
as outlined in the Scope of Services as provided. Bronnercom is prepared to
render services to Pontiac - GMC with the understanding that no advertising
media shall be placed and no chargeable services performed without Pontiac - GMC
authorization as defined in Exhibit B.
Bronnercom compensation is fixed at [***] per month, not to exceed [***]
for the agreed to scope of services, unless otherwise agreed to by Pontiac -
GMC. If Bronnercom services terminate on a date other than the last day of the
month, a pro-rated share of the fixed fee will be due for the final month.
Media/production/travel expenditures will be billed separately. Pontiac - GMC
will be billed at net cost for these expenditures on a monthly basis.
Attachment 1 - General Conditions, details payment provisions for miscellaneous
business expenses. All cash discounts will be passed on to Pontiac - GMC.
Bronnercom shall bill Pontiac - GMC for all sales tax and other itemized taxes
at cost. Bronnercom travel associated with General Motors' activities will not
exceed [***] without prior Pontiac - GMC approval.
It is the responsibility of Bronnercom to manage its costs against the above
fee. As a result there will be no reconciliation of the agreed upon fee at year-
end. However, if there is a material change in the Scope of Services, the fee
will be adjusted as agreed upon by both parties.
ACCEPTED AND AGREED TO:
Pontiac - GMC Bronnercom, LLC
By: By:
-------------------------------- ------------------------------
Date: Date:
-------------------------------- ------------------------------
18
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Exhibit A
Services and Compensation - Pontiac - GMC
This Exhibit A sets forth the compensation which will be paid by Pontiac - GMC
to Bronnercom; it is the intent of the parties that this Exhibit A be attached
to and become part of the Advertising Bronnercom Agreement between General
Motors and Bronnercom dated as of January 1, 1999.
Bronnercom will be compensated on a fixed-fee basis for the agreed upon services
as outlined in the Scope of Services as provided. Bronnercom is prepared to
render services to Pontiac - GMC with the understanding that no advertising
media shall be placed and no chargeable services performed without Pontiac - GMC
authorization as defined in Exhibit B.
Bronnercom compensation is fixed at [***] per month, not to exceed
[***] for the agreed to scope of services, unless otherwise agreed to by
Pontiac - GMC. If Bronnercom services terminate on a date other than the last
day of the month, a pro-rated share of the fixed fee will be due for the final
month. Media/production/travel expenditures will be billed separately. Pontiac -
GMC will be billed at net cost for these expenditures on a monthly basis.
Attachment 1 - General Conditions, details payment provisions for miscellaneous
business expenses. All cash discounts will be passed on to Pontiac - GMC.
Bronnercom shall bill Pontiac - GMC for all sales tax and other itemized taxes
at cost. Bronnercom travel associated with General Motors' activities will not
exceed [***] without prior Pontiac - GMC approval.
It is the responsibility of Bronnercom to manage its costs against the above
fee. As a result there will be no reconciliation of the agreed upon fee at year-
end. However, if there is a material change in the Scope of Services, the fee
will be adjusted as agreed upon by both parties.
ACCEPTED AND AGREED TO:
Pontiac - GMC Bronnercom, LLC
By: By:
-------------------------------- ------------------------------
Date: Date:
-------------------------------- ------------------------------
19
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Exhibit A
Services and Compensation - Enterprise Customer Management
This Exhibit A sets forth the compensation which will be paid by General Motors
to Bronnercom; it is the intent of the parties that this Exhibit A be attached
to and become part of the Advertising Bronnercom Agreement between General
Motors and Bronnercom dated as of January 1, 1999.
Bronnercom will be compensated on a fixed-fee basis for the agreed upon services
as outlined in the Scope of Services as provided. Bronnercom is prepared to
render services to General Motors with the understanding that no advertising
media shall be placed and no chargeable services performed without General
Motors authorization as defined in Exhibit B.
Bronnercom compensation is fixed at [***] per month, not to exceed
[***] for the agreed to scope of services, unless otherwise agreed to by
General Motors. If Bronnercom services terminate on a date other than the last
day of the month, a pro-rated share of the fixed fee will be due for the final
month. Media/production/travel expenditures will be billed separately. General
Motors will be billed at net cost for these expenditures on a monthly basis.
Attachment 1 - General Conditions, details payment provisions for miscellaneous
business expenses. All cash discounts will be passed on to General Motors.
Bronnercom shall bill General Motors for all sales tax and other itemized taxes
at cost. Bronnercom travel associated with General Motors' activities will not
exceed [***] without prior General Motors approval.
It is the responsibility of Bronnercom to manage its costs against the above
fee. As a result there will be no reconciliation of the agreed upon fee at year-
end. However, if there is a material change in the Scope of Services, the fee
will be adjusted as agreed upon by both parties.
ACCEPTED AND AGREED TO:
General Motors Corporation Bronnercom, LLC
By: By:
-------------------------------- ------------------------------
Date: Date:
-------------------------------- ------------------------------
20
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Attachment 1
GENERAL CONDITIONS
Communication Charges:
Bronnercom will assume cost of telephone, facsimile and other like communication
charges incurred in the normal conduct of business, including communications to
General Motors, media owners, and material suppliers.
Bronnercom will assume cost of calls or communications giving instructions to
Bronnercom' branch offices, field representatives, or traveling staff members.
Bronnercom will also assume cost of calls or communications regarding xxxxxxxx,
as well as those made necessary by delays or oversight on the part of the
Bronnercom.
General Motors will pay net costs for communication charges incurred upon
request to provide General Motors with special or unusual service or to meet
special emergencies above and beyond the normal range of Bronnercom service.
These charges must be approved in advance by General Motors. General Motors will
also assume net cost of calls or communications:
. When General Motors changes copy or schedules after original instructions have
been issued, and when time does not permit revising instructions by regular
mail;
. When General Motors delays release of copy, tapes, or schedules until it is
too late to issue instructions by regular mail;
. When it is necessary to obtain information for the preparation of special
advertisements requested (General Motors will first be advised that
information is needed);
. When it is necessary to make a market analysis in completing research
requested;
. When it is necessary to give instructions to media or suppliers regarding
publicity material;
. When General Motors' field organization requests information regarding
campaign (such requests will be referred to General Motors, unless General
Motors asks Xxxxxxxxxx to supply information).
Mailing and Shipping
Xxxxxxxxxx will pay all mailing and shipping charges incident to the routine
conduct of business. This includes correspondence between the Bronnercom' and
the General Motors' representatives, publishers, broadcasters, outdoor plant
owners, and suppliers of materials/services. This includes postage on the
mailing of orders, revisions, cancellations, etc., sent by regular mail.
21
General Motors will pay net cost for mailing and shipping of:
. Advertising materials to publications or suppliers;
. All shipments of publicity material;
. Direct mail or sales promotion literature;
. General letters sent by Bronnercom over General Motors' signature, or at
General Motors' request, over Bronnercom' signature;
. Advertising material or instructions to General Motors' field organization
(field offices, dealers, or dealer marketing association), special research or
market analysis materials, at the request of General Motors;
. Expediting or special delivery of mail or shipment upon request of General
Motors.
Outside Packing and Handling
Bronnercom shall charge net cost on the purchase of outside packaging and
handling.
Duplicating and Copying
Bronnercom shall charge net cost on the purchase of outside goods and services
as previously authorized by General Motors:
1. Audio and video duplicates;
2. Slides, transparencies, prints;
3. Xerox copies, Photostats.
When duplicated or prepared internally, audio tapes, video tapes, Xerox copies,
and Photostats will be billed at net cost.
Overtime and Premium Service
In recognition of the need for photography during the quality sun up and
twilight hours and the desire to compress costly shoots into the least number of
days, General Motors accepts the probability of overtime work on the part of
various suppliers and is prepared to pay for such work. It is, therefore, the
responsibility of Bronnercom to include such overtime in production estimates
for General Motors' evaluation and approval before commitments are made.
However, it is not to be assumed that overtime is a necessary element in the
production of every ad or commercial, nor should provision for overtime be
provided in every production estimate.
22
Bronnercom assumes responsibility to so plan production requirements as to
minimize the cost penalties associated with overtime.
When necessary overtime is occasioned and provision has not been made,
Bronnercom has responsibility of securing written General Motors' approval in
advance of the commitment. If an approved General Motors representative is not
available, Bronnercom may authorize a supplier to proceed with overtime work,
securing approval as soon as possible and, in any event, within 48 hours.
Premium service, whether identified as special service, overnight processing,
lab or studio rental overtime, or similar descriptive phrases, is not recognized
as the normal way of doing business. Therefore, premium service should not be
built into all production estimates. If and when premium service is required, it
must be identified on the production estimate for General Motors' approval.
Applied Graphics Technology Preferred Supplier Status
General Motors has entered into an agreement with Applied Graphics Technology
(AGT), for AGT to provide the following services:
1. Complete pre-press production for all catalogs, print ads, and collateral
material.
2. Broadcast duplication and distribution services for radio and television
advertising, including a plan to transition toward digital distribution
for radio and television spots.
3. Digital archive development and implementation for print and broadcast
materials.
Pre-press is defined as the point at which General Motors artwork is complete
and prepared for a printer or processed for dub and ship to television or
radio stations.
The rates for the above services have been negotiated by General Motors with
AGT and will be billed at net cost through Bronnercom to General Motors.
Work performed in the above categories by other suppliers and all cost in
excess of the GM rates must be pre-approved by General Motors. However, an
officer of Bronnercom may authorize emergency work to other suppliers when
such work is deemed to be in the best interest of General Motors and the
appropriate General Motors' representative(s) is unavailable. Any such work
authorized by Xxxxxxxxxx shall be communicated to General Motors as soon as
possible, and in any event within two (2) business days, at which time
written approval must be secured.
23
Exhibit B
Authorizations and Approvals - Oldsmobile
All authorizations and approvals with respect to any Services performed in
Exhibit A shall be authorized with the proper submission of an expense
authorization in the following manner:
Total Cost of Project
General Motors Signature Required
$ 0 - $ 500,000
Advertising Budget Coordinator, MARCOM Manager
Xxxx Xxxxx, Xxxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxx Xxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxx
In excess of $ 500,000
Advertising Director, General Manager
Xxxx Xxxxx, Xxxxx Xxxxxxx
AUTHORIZED SIGNATURES:
---------------------------------------
Xxxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxxxxxx
---------------------------------------
Xxxx Xxxx
---------------------------------------
Xxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
---------------------------------------
Schryse Xxxxxxxx
---------------------------------------
Xxxx Xxxxx
---------------------------------------
Xxxxx Xxxxxxx
24
Exhibit B
Authorizations and Approvals - Pontiac - GMC (Commercial)
All authorizations and approvals with respect to any Services performed in
Exhibit A shall be authorized with the proper submission of an expense
authorization in the following manner:
Total Cost of Project
General Motors Signature Required
$0 - $100,000
Budget Coordinator
Xxxxx Xxxxxxx
$0 - $500,000
Advertising Manager
Xxxx Xxxxxxx
In excess of $500,000
Advertising Director
Xxxxxx Xxxxx
AUTHORIZED SIGNATURES:
---------------------------------------
Xxxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxx
25
Exhibit B
Authorizations and Approvals - Pontiac - GMC
All authorizations and approvals with respect to any Services performed in
Exhibit A shall be authorized with the proper submission of an expense
authorization in the following manner:
Total Cost of Project
General Motors Signature Required
$0 - $500,000
Brand Relationship Manager, Interactive Marketing Manager, Advertising Manager
Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxx
In excess of $500,000
Advertising Director
Xxxxxx Xxxxx
AUTHORIZED SIGNATURES:
---------------------------------------
Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxx
26
Exhibit B
Authorizations and Approvals - Enterprise Customer Management
All authorizations and approvals with respect to any Services performed in
Exhibit A shall be authorized with the proper submission of an expense
authorization in the following manner:
Total Cost of Project
General Motors Signature Required
$ 0 - $ 500,000
Manager
In excess of $ 500,000
Director
Xxxxx Xxxxx, Xxxxx Xxxx
AUTHORIZED SIGNATURES:
---------------------------------------
Xxxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxx
---------------------------------------
Xxxxxx Xxxxx
27
Exhibit C
Reports
Xxxxxxxxxx agrees to supply status and other reports as General Motors may
require from time to time. Such reports shall include, but not be limited to:
1. Quantitative Business Management System (QBMS). This report should
detail Bronnercom staff hours and direct payroll by department/function
and Bronnercom overhead. It should be provided on a forecast basis at
the time the scope of work is finalized and on an actual basis at the
end of the year if an annual contract or at the end of the contracted
project.
2. Monthly Commitment Report of Consumer Influence Expense. This report
shall indicate, by medium, the total dollars committed in the respective
month's General Motors advertising schedule.
3. Monthly Forecast of Consumer Influence Expense. This report shall
indicate, by medium, by month, committed and forecast General Motors
advertising expense for the full calendar year.
4. Expenditures with Minority Contractors. This report shall be a summation
of the information required in Section 14, and may be substituted for
individual Authorization reporting if deemed appropriate by General
Motors.
5. Bronnercom will notify responsible General Motors when determination
must be made to exercise bonus spots.
Copies of the above reports shall be provided to the appropriate Advertising
Manager for General Motors.
28
Exhibit D
Travel Guidelines
The following are guidelines for reporting and reimbursement of business-related
travel/incidental expenses:
1. Xxxxxxxxxx's travel on behalf of General Motors, which has been previously
approved by General Motors, will be reimbursed at actual cost not to exceed
General Motors' "Preferred Supplier" rates. Bronnercom is responsible for
making travel reservations, hotel/motel accommodations, and reserving rental
cars.
2. Original copies of receipts are required for all airfare, hotel, car rental,
and transportation expenditures, plus any individual expenditure, such as
parking, gasoline purchases, highway tolls, etc. If applicable, the last copy
of the airline ticket must be included. All travel and per diem for which
Xxxxxxxxxx seeks reimbursement will be submitted to General Motors on an
expense report form acceptable by General Motors, along with substantiating
documentation, and will accompany the regular invoices. The Bronnercom'
employee, his or her immediate supervisor, and an authorized representative
of General Motors must sign the expense report form.
3. General Motors will provide Bronnercom with the current version (and future
revisions) of the General Motors Travel Policy and Guidelines Manual for
detailed acceptable reimbursable travel/incidental expense parameters (as
applicable).
4. All expenses must be reasonable and are subject to audit.
29
Exhibit E
Proof of Services
Vendor invoices must be accompanied by the following substantiation/proof of
service and Bronnercom must keep on file for Section 5 audits:
TV/Radio Network....
Network billing with program, program date, program time slot, commercial code,
cost per announcement
TV/Radio Spot....
Station billing with city and state, date, air time, commercial code, cost per
announcement
TV/Cable....
Date, air time, commercial code, cost per announcement
TV/Syndication....
Program, date (by "week of"), commercial code, cost per announcement
Print (Magazine)....
Publication Insertion Order with issue, date, ad number, space/inches, rate,
cost per insertion, cash discount, right to audit valid tearsheet per magazine
or for each magazine
Print (Newspaper)....
Publication Insertion Order with issue, date, space/inches, rate, cost per
insertion, cash discount (Tearsheets may be obtained from ad checking bureau for
two months.)
Outdoor....
Name of outdoor company, market, cost by location or cost by number of
locations, gross costs, commission adjustment, amount payable
Production....
Invoice number, date of invoice due date, estimate/job number, job description
noncommissionable items listed separately, total cost due (including vendor
invoices, and expense reports when applicable)
30
Exhibit F
EMPLOYEE CONFIDENTIAL INFORMATION,
NONCOMPETITION AND OWNERSHIP AGREEMENT
As a condition of my continuing employment with Bronnercom, LLC (the
"Company" which term shall include Sansome, Inc. and Bronnercom (UK), Inc.) to
hire me as an employee, I hereby agree as follows:
1. When used in this Agreement "Confidential Information" shall mean all
information which has not been made public concerning the Company's
business, including but not limited to: names of clients or prospective
clients, participant lists, marketing strategies, mailing lists, personnel
information, billing rates, accounting procedures, income information,
financial data, advertising ideas, other information or knowledge which a
reasonable person would believe to be of a confidential or secretive
nature, writings (whether or not copyrightable), "know-how", ideas and
concepts, whether patentable or not, and whether conceived or developed by
me on behalf of the Company or made known to me by the Company. The term
"Confidential Material" shall mean all physical embodiments of such
Confidential Information, including, without limitation, drawings,
training manuals, decks (proposals), cassettes, filmstrips, customer
lists, contracts, reports, financial reports, manuals and correspondence.
References in this Agreement to the "Company" shall include all parent,
affiliated subsidiary, assigns and successor corporations or entities of
the Company.
2. I recognize that in the performance of my services for the Company I may
gain knowledge of Confidential Information and may have access to
Confidential Materials, both of which I acknowledge are valuable and
protectable assets, and the exclusive property, of the Company. I also
recognize that I may work directly with the Company's customers and
clients, and develop good will on behalf of the Company with such
customers and clients, and that the Company has a vital business interest
in protecting such good will.
3. I agree that during and following my employment with the Company I shall
not use, divulge, disclose, communicate, copy or make accessible any
Confidential Information or Confidential Materials to or for anyone except
as authorized in writing by the Company.
4. I agree not to remove from the Company's facilities any Confidential
Materials whether created or produced by me or obtained from the Company,
except as directed by the Company, and I agree to return all originals and
copies such Confidential Materials to the Company upon request, and in any
event upon the termination of my employment with the Company.
5. (a) The following shall be the exclusive property of the Company to which
the Company shall have the entire right, title and interest: all computer
software, writings
31
(including reports, source and object codes, manuals and other
documentation), discoveries, inventions, improvements, ideas, names, models
trademarks, innovations and contributions (including all data and records
pertaining thereto), regardless of what form they may take, and whether or
not patentable or copyrightable, and whether or not reduced to writing (or
other copyrightable form), drawings, practice, or recordation in any form
readable or accessible by any person or machine, (i) which I may produce,
develop, write, invent, discover, originate, make or conceive during the term
of my employment or during the one year period following termination of such
employment, either alone or with others and whether or not during working or
business hours or by or with the use of facilities, materials or proprietary
information or rights of the Company, and (ii) which relate to, or are or may
likely be useful in connection with, any of the Company's businesses or
products; the foregoing are collectively referred to as "Writings and
Inventions". I shall promptly and fully disclose all Writings and Inventions
to the Company, and shall promptly record all Writings and Inventions in such
form as the Company may request. All Writings and Inventions reduced to
copyrightable form shall be considered a "work made for hire" for the sole
benefit of the Company. The Company shall own all rights in my Writings and
Inventions, including the right to use or not to use any of such Writings and
Inventions, and the right to change, alter, supplement, edit, translate or
improve any Writings and Inventions as the Company sees fit.
(b) I hereby assign to the Company my entire right, title and interest in and
to all Writings and Inventions. I shall execute and deliver, upon the
Company's request at any time (including any time after termination of my
employment by the Company), and at the Company's expense, any and all legal
instruments or applications, assignments and other documents or papers that
the Company may deem necessary or desirable to obtain, establish, maintain,
protect and perfect or enjoy its rights, including any patent or copyright
rights, in the Writings and Inventions, and shall assist the Company, at the
Company's expense, in obtaining, defending, and enforcing the Company's
rights therein, all without further compensation or royalty payments to me.
6. In order to protect the Company's Confidential Information and good will, I
agree that, for as long as I am employed by the Company and for one year
following completion of such employment, I shall not, directly or indirectly
(whether as an employee, agent, consultant or otherwise), solicit or accept
work from, or perform work for, or have an ownership interest in, or other
connection with: (a) any client or prospective client of the Company for
which I performed services while employed by the Company; or (b) any entity
which solicits or accepts work from, or performs work for, any client or
prospective client of the Company for which I performed services while an
employee of the Company; nor for such period of time will I take any action
which might disturb the existing business relationship of the Company with
any of its clients. During my employment with the Company and for one year
following completion of such employment, I shall not participate or engage
directly or indirectly in the solicitation or persuasion of any employee of,
or consultant to, the Company to terminate his or her relationship with the
Company or in hiring of such employee or consultant by any other
32
person or entity.
7. I acknowledge that the Confidential Information and Confidential Materials
and good will referred to above are of a special, unique and extraordinary
character and that any violation of this Agreement would cause the Company
irreparable harm which could not be reasonably or adequately compensated
by damages in an action of law, and I agree that this Agreement shall
therefore be enforceable both at law and in equity, by injunction or
otherwise, and I agree that if the Company prevails in any legal
proceedings arising out of its attempt to enforce this Agreement, in
addition to any damages and/or injunctive relief which may be ordered, the
Company shall be entitled to all costs, including reasonable attorneys
fees, incurred by the Company in such proceedings.
8. I agree that this Agreement does not constitute an agreement by the
Company to employ me for any particular term, but that my employment is
at-will, and may be terminated by me or the Company at any time, with or
without cause.
9. I represent and warrant to the Company that I am not now under any
obligations to any person, firm or corporation or have any other interest
which is inconsistent or in conflict with this Agreement or which would
prevent, limit or impair in any way the performance by me of any of the
covenants hereunder or of my duties of my said performance of services
contemplated hereby.
10. The Company may assign this Agreement to any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company.
11. I acknowledge and agree that the terms and conditions of this Agreement
shall survive the termination of my providing services for the Company.
12. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts as an instrument under seal.
Employee: Witness:
Signature: Signature:
---------------------------- ---------------------------
Printed Name: Printed Name:
------------------------- -------------------------
Date: Date:
--------------------------------- ---------------------------------
33
Exhibit F, Part II
CONFIDENTIAL INFORMATION AGREEMENT
This Confidential Information Agreement is entered into this ___ day of_______
____, by and between ____________________, a __________ corporation with a place
of business at ______________ ("Company") and Bronnercom, LLC, a Delaware
limited liability company with a place of business at The Prudential Tower, 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Bronnercom").
WHEREAS, Company and Bronnercom contemplate entering into discussions concerning
a possible business transaction between the Company and Bronnercom (the
"Transaction"); and
WHEREAS, in connection with such discussions the parties may disclose to each
other certain confidential and proprietary information, and that neither party
would make such disclosures without the other's agreement to maintain
confidential the treatment of such information in accordance with the terms
hereof; and
WHEREAS, the parties desire to proceed with discussions and negotiations, and to
be provided with such information, on the terms and conditions herein set forth,
NOW THEREFORE, the parties agree as follows:
1. If during the course of discussions between Bronnercom and the Company, one
party should have cause to deliver any information ("Disclosing Party") to
the other party ("Receiving Party"), then the Receiving Party shall not
disclose or use any such information of the Disclosing Party to the extent
that:
a. it has been designated orally or in writing as "Confidential" or
"Proprietary" or in like words;
b. it contains certain information which is generally treated as proprietary,
such as information regarding its business, finances or operations; or
c. it contains certain information, whether or not in written form and
whether or not designated as confidential, which the Receiving Party knows
or should have known is treated as confidential by the Disclosing Party.
(all such information to be referred to as "Confidential Information")
without the prior written consent of the Disclosing Party and then only to
the extent specified in such consent. Confidential Information may be used
and disseminated within the Receiving Party's own organization only to the
extent reasonably required for the purposes hereof.
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2. The Receiving Party shall exercise the same degree of care in safeguarding
the Confidential Information of the Disclosing Party that the Receiving Party
would exercise for its own information of the same type. The Receiving Party
shall authorize access to the Disclosing Party's Confidential Information
only by its employees who have entered into appropriate confidentiality
agreements (and shall ensure compliance with the terms of such agreements) or
the Receiving Party's attorneys or other appropriately authorized agents and
representatives.
3. The restrictions on use or disclosure described in Paragraphs 1 and 2 above
do not extend to any item of information which:
a. is publicly known at the time of its disclosure;
b. is lawfully received from a third party not bound in a confidential
relationship to the Disclosing Party;
c. is published or otherwise made known to the public by the Disclosing
Party;
d. was generated independently before its receipt from the Disclosing Party;
or
e. is required by law to be disclosed, provided that the Receiving Party
gives the Disclosing Party prior notice of the required disclosure to
provide the Disclosing Party the opportunity to obtain appropriate
protective orders.
4. Each party acknowledges that a violation of this Agreement would cause
irreparable harm to the Disclosing Party for which no adequate remedy at law
exists and each party therefore agrees that, in addition to any other
remedies available, the Disclosing Party shall be entitled to injunctive
relief to enforce the terms of this Agreement. The prevailing party shall be
entitled to recover all costs and expenses, including reasonable attorney's
fees, incurred because of any legal action arising in relation to this
Agreement.
5. Upon demand by the Disclosing Party, the Receiving Party shall return any
written Confidential Information of the other and all physical media on which
Confidential Information was received, including any copies thereof, with a
letter confirming that the Confidential Information has in no way been
reproduced or copied or that all copies have been returned.
6. Company agrees that during this Agreement and for one (1) year following
Company shall not participate or engage directly or indirectly in the
solicitation or persuasion of any employee of, or consultant to, Xxxxxxxxxx
to terminate his or her relationship with Xxxxxxxxxx or in hiring of such
employee or consultant by any other person or entity.
7. The parties have entered into this Agreement only for the purposes of
facilitating discussions regarding the potential Transaction, and neither
Bronnercom nor the Company shall be under any further obligation to
consummate the Transaction merely by executing this Agreement.
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8. This Agreement shall be binding on the parties, their successors and assigns,
and shall be governed by the laws of the Commonwealth of Massachusetts as an
instrument under seal.
[Name] Bronnercom, LLC
Signature: Signature:
---------------------------- ----------------------------
Printed Name: Printed Name: Xxxxx X. Xxxxxxxxxx
------------------------- ------------------------
Title: Title: EVP/Chief Financial Officer
-------------------------------- --------------------------------
Date: Date:
--------------------------------- ---------------------------------
36
Exhibit G
Property Disposal
The preferred disposition of special equipment, props and wardrobe material is
(in declining order) as follows:
1. Return of materials to their original supplier for the full purchase price.
(No authorization required).
2. Sale of non-returnable materials at a price greater than 50% of the
purchase price.
3. Donation of materials to a nondenominational charitable organization
approved by General Motors Corporation. Approved organizations are as
follows: American Red Cross, Focus Hope, Goodwill Industries and Salvation
Army.
4. Scrapping of all materials which cannot be disposed of or where shipping or
other additional costs prohibit cost-effective disposition.
On most jobs, the materials can be disposed of more effectively at the job site
immediately following the conclusion of the job, and in these instances
disposition will be included on the approved Authorization. However, if no
previous Authorization has been provided for, verbal authorization from General
Motors in accordance with Exhibit B, must be obtained before disposing of the
material. The verbal authorization must be confirmed in writing by the
authorizing individual.
Upon final disposition of said material, Xxxxxxxxxx will make available to
General Motors the following as applicable:
1. Credit to General Motors for the full value of material returned, or
selling price of material sold, or
2. Proof of contribution to a charitable organization in a form suitable for
IRS reporting requirements, or
3. Proof that materials have been scrapped in the form of an affidavit signed
by the manager responsible for verifying that the material was scrapped.
37
Exhibit H
Loan of Vehicle Terms and Conditions
and Vehicle Receipt
General Motors Corporation agrees to loan the following Vehicle to the
undersigned from approximately __________________ to ____________, upon the
terms set forth below:
MAKE:______________
MODEL:_____________
VIN: ______________
PARTICIPANT'S NAME:
------------------------------------------------------------
Last First M.I.
ADDRESS:
-----------------------------------------------------------------------
Street City State
PHONE: ( ) (home) ( ) (work)
-------------------------- ---------------------------------
DRIVER'S LICENSE No.: State:
---------------------------- ---------------------------
Terms:
1. The Vehicle is, and shall remain, the property of General Motors.
2. The undersigned agrees that: (a) the Vehicle will not be utilized illegally,
improperly, for hire, as a public conveyance or in any manner for any
political purpose whatsoever; (b) the Vehicle shall be driven in a safe and
prudent manner by insured, licensed drivers, twenty-one (21) years of age or
older; (c) the undersigned shall not modify, disconnect, or otherwise
interfere with the operation of the odometer, emission control equipment, or
any other equipment; (d) the undersigned will comply with the Driver Conduct
Requirements on the reverse side of this form, and (e) the undersigned shall
be responsible for all fines, forfeitures and penalties incurred by reason
of the use of the Vehicle.
3. GENERAL MOTORS MAKES NO WARRANTY OTHER THAN THAT EXPRESSED IN ITS NEW
VEHICLE LIMITED WARRANTY, A PRINTED COPY OF WHICH IS FURNISHED WITH THE
VEHICLE. General Motors authorizes the undersigned to obtain, on General
Motors behalf as owner of the Vehicle, such warranty service as is necessary
and provided for under the new vehicle limited warranty. Ordinary operating
expenses such as gas, oil, grease, tire repair and other incidentals are the
responsibility of the undersigned.
4. At the end of the term of this loan, or earlier if requested by General
Motors, the undersigned shall return the Vehicle in the same condition as
delivered, reasonable wear and tear excepted, to the nearest General Motors
office or such other location as designated by General Motors. All repairs
necessary to restore the Vehicle to such condition shall be performed at a
General Motors approved facility, at the expense of the undersigned.
Driver's Signature: Date:
------------------------------ ---------------
38
General Motors Safe Driver Program
Driver Conduct Requirements
I understand that the loan of this Vehicle is subject to the following terms,
and verify that I am 21 years of age or older:
1. Possess a valid operator's license, display such license to the vehicle
key issuer at each vehicle exchange, and comply with all license
restrictions.
2. Never drive while impaired by alcohol, drugs, medication, illness,
fatigue, or injury.
3. Ensure the proper use of safety belts and child safety restraints for
all occupants.
4. Obey all applicable motor vehicle laws, codes, and regulations.
5. Drive in a defensive manner, anticipating situations where incidents are
likely to occur.
6. Refrain, at all times, from using radar/laser detection devices.
7. Plan trips by selecting the safest route, depart early enough to observe
posted speed and traffic regulations, and will be mindful of current and
forecasted weather conditions.
8. Report all incidents/crashes involving damage to the vehicle, including
reporting incident/crash to ESIS (a subsidiary of CIGNA Insurance) at
0-000-000-0000 and to the vehicle key issuer. (Direction is provided in
the glove compartment of the vehicle.)
9. Prohibit use of the vehicle by other parties, including family members.
Furthermore, by signing this receipt and acknowledgment, I verify that I have
not been convicted within the past 36 months of any of the following motor
vehicle violations:
1. Driving while operator's license is suspended, revoked, or denied.
2. Vehicular manslaughter, negligent homicide, felonious driving or felony
with a vehicle.
3. Operating a vehicle while impaired, under the influence of alcohol or
illegal drugs, or refusing a sobriety test.
4. Failure to stop or identify under a crash (includes leaving the scene
of a crash; hit and run; giving false information to an officer).
5. Eluding or attempting to elude a law enforcement officer.
6. Traffic violation resulting in death or serious injury.
7. Any other significant violation warranting suspension of license.
Driver's Signature: Date:
------------------------------ ---------------
39
Exhibit I
Notices
If to Bronnercom: Bronnercom, LLC
The Prudential Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, EVP & CFO
If to General Motors: General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-2000
Attention:
Director of Advertising
M.C.
with a copy to: General Motors Corporation
Office of the General Counsel
0000 X. Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
M.C. 000-000-000
40