EXHIBIT 10.3
ISO 14000 MARKETING AND PROMOTION AGREEMENT
THIS AGREEMENT is being entered into as of this 6th day of September, 1996,
between REALITY INTERACTIVE, INC., a Minnesota corporation with its principal
office at Suite 300, 00000 Xxxx 00xx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000
("RII") and GLOBAL ENVIRONMENT AND TECHNOLOGY FOUNDATION, a non-profit Virginia
corporation, with its principal place of business at 0000 Xxxxxx Xxxxx Xxxxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 ("GETF").
RECITALS
WHEREAS, RII is the producer and publisher of a certain environmental
standards product published in electronic digital format and known as the ISO
14000 EMS Conformance Series (the "Series");
WHEREAS, the Series will be comprised of five separate titles
(individually, the "Title") as follows:
UNDERSTANDING ISO 14000
GETTING STARTED WITH ISO 14000
BUILDING AND IMPLEMENTING AN EMS FOR ISO 14000
INTERNAL AUDITING AND MANAGEMENT REVIEW FOR ISO 14000
PROJECT PLANNING FOR ISO 14000
The Titles and Series are collectively referred to herein as the "Product";
WHEREAS, GETF desires to market and promote ISO 14000 information including
environmental training and education materials such as interactive multimedia
products;
WHEREAS, GETF and the American National Standards Institute (ANSI) have
formed "ISO 14000 Integrated Solutions" (IIS), which includes an on-line website
that provides education, training and information to American industry and
government about the changing dynamics of international environmental management
standards;
WHEREAS, RII is willing to grant GETF the right to market and promote the
Product and to allow GETF to earn a Promotion Royalty in accordance with the
terms and conditions as set forth herein;
WHEREAS, GETF has determined that the RII Product meets GETF's criteria for
products that GETF is willing to be associated with and this assiciation is
granted to RII on the basis of the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the recitals and the mutual
agreements and acknowledgments made herein, the parties agree as follows:
1. APPOINTMENT. RII grants to GETF the nonexclusive right, under
the terms of this Agreement, to market and promote the Product on a worldwide
basis (the "Territory") employing such marketing and promotion programs as
identified in EXHIBIT A, or employing other programs as deemed appropriate by
the parties.
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2. PROMOTION ROYALTY. GETF shall be entitled to a Promotion Royalty
of (***)% on each unit of the product sold by RII up to Net Receipts of $(***).
Thereafter, GETF shall be entitled to a Promotion Royalty of (***)% on each unit
of the product sold by RII in excess of $(***) of Net Receipts. In addition to
the above terms, GETF shall be entitled to a Promotion Royalty of (***)% on Net
Receipts realized as a direct result of its sales efforts in which Xxx Xxxxxx or
another GETF employee actively participates in a sale closed by RII. As used
herein, "Net Receipts" means the net revenues that RII receives from sale of the
Product by any means or distribution channels, exclusive of demonstration or
promotional copies, sales discounts, returns, postage, freight or other actual
shipping charges.
(***)
3. PAYMENT. On or before the 30th day after the end of each month
during the term of this Agreement, RII shall submit to GETF a report of the Net
Receipts for the Product during the previous month along with a payment of the
Promotion Royalty for such Net Receipts if such Production Royalty is in excess
of the amounts paid in connection with clause 2 of this Agreement. All payments
will be made in U.S. dollars.
4. TERM AND TERMINATION. The term of this Agreement is three years
from the date of its execution. The term may be extended by mutual consent of
the parties. This Agreement may not be terminated by either party during its
term except for good cause. Good cause shall mean a material breach of this
Agreement. Neither party may terminate for cause unless it notifies the other
party of any alleged material breach in writing and the breach has not been
cured within 30 calendar days from the mailing date of such notice. This
Agreement will terminate automatically in the event either party ceases to do
business, in the event of either party's bankruptcy, insolvency, or assignment
for the benefit of creditors.
Upon termination of this Agreement, GETF shall return any Product, as well as
copies of promotional materials, marketing literature, written information and
reports pertaining to the Product that have been supplied by RII. At the same
time, RII shall cease using any references to or selling any products with the
GETF/IIS logos, including packaging and any collateral marketing materials.
Within ten (10) business days of notice of termination, RII shall gather and
destroy, from its own stock as well as from all of its distribution channels,
all copies of the product, its packaging, and all collateral marketing materials
which may contain any information referring or related to GETF and/or IIS.
5. PRICE OF PRODUCT. RII retains the right to establish the retail
price of any Title and of the Series (the "Retail Price") and to adjust the
Retail Price from time to time.
6. MARKETING POLICIES; PRODUCT SUPPORT. GETF agrees to use its
reasonable best efforts to market and promote the Products as defined in EXHIBIT
A. GETF will promptly respond to any inquiries that it receives on the Product.
RII agrees to maintain a responsive customer support function. RII also agrees
to provide GETF with a starter package of all materials necessary to market the
Product including Demo CD's, advertising flyers etc. GETF agrees to purchase
additional marketing materials, if necessary, at a price equal to RII's cost to
produce such materials.
*** Denotes confidential information that has been omitted from the exhibit and
filed seperately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
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7. QUALITY AND WARRANTIES. RII warrants that the digital media on
which the Product is distributed is free from defects in materials and
workmanship. EXCEPT AS SPECIFICALLY PROVIDED IN THE PRECEDING SENTENCE, RII
MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO
THE PRODUCT, INCLUDING ITS CONTENT, QUALITY, PERFORMANCE, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. This section shall not limit RII's liability
with respect to intellectual property rights and indemnification. RII shall
extend its standard warranty to purchasers of the Product, a copy of which is
attached as EXHIBIT E, in the form in which it appears on the Product
Registration Card packaged with the Product. GETF shall not represent that RII
makes any warranty other than this standard warranty.
8. USE OF TRADEMARKS AND ADVERTISING. With their prior review and
written approval, GETF and RII agree to allow each other to advertise and use
the trade names, trademarks, images, likenesses or other information of each
other ("Approved Materials") for product packaging, normal advertising and
promotion. Upon reasonable notice, each party may withdraw or modify such
authorization. The respective use of these trademarks are identified as EXHIBIT
C AND D.
9. OWNERSHIP AND PROPRIETARY RIGHTS. RII represents and warrants
that (i) it has all rights in and to copyrights, trade secrets and trademarks
associated with the Product under this Agreement, (ii) the use of the literary
and artistic materials and ideas contained or embodied in the Product,
containers and advertising materials, if any, furnished to GETF by RII in
accordance with the terms of this Agreement, will not violate any law, or
infringe upon, or violate any rights of any person, firm or corporation, and
(iii) RII has no knowledge of any litigation, proceeding or claim pending or
threatened against RII which may materially affect RII's rights in and to the
Product, or the works and performances embodied thereon, the copyrights
pertaining thereto, or the rights, licenses and privileges granted to GETF
hereunder.
10. INDEMNIFICATION. Each party (in the case of GETF, "Party"
refers to IIS as well as to GETF) shall defend, indemnify and hold the other
Party and its officers, agents and employees harmless against any liability,
claim, damage, suit or expense (including reasonable attorney's fees) caused by
the first Party's acts or omissions, including without limitation, claims based
on: (I) the first Party's infringement of a patent, copyright, trademark or any
other intellectual property right; (ii) bodily injury, death or damage to
property caused by the first Party; (iii) the first Party's conflicts of
interests, fraud or criminal conduct; (iv) the first Party's non-compliance with
applicable laws or regulations; (v) the first Party's failure to compensate or
comply with any applicable labor standards with respect to the first Party's
employees, agents or independent contractors; and (vi) the first Party's breach
of this Agreement, or any representation or warranty contained in this
Agreement.
11. RELATIONSHIP OF PARTIES. During the term of this Agreement, the
relationship between RII and GETF is that of independent contractors. Under no
circumstances shall any of the employees of one party be deemed the employees of
the other for any purpose.
12. CONFIDENTIALITY AND NONDISCLOSURE. Any specifications,
samples, computer programs, technical information, lists of customers or
potential customers, business plans or other proprietary business information or
data disclosed by one party to the other during the term of this Agreement,
whether written, oral or otherwise, ("Confidential Information") shall remain
the property of the disclosing party. The parties agree to hold all such
Confidential Information in strict confidence and not to disclose same to any
third party, with the exception of IIS issues being discussed with ANSI, without
the disclosing party's prior written consent. Upon expiration or termination of
this Agreement, each party shall return to the other all such Confidential
Information in its possession.
13. NOTICE. All notices shall be in writing and will be delivered
personally, by confirmed facsimile transmission, by certified mail, or
overnight courier, to the addresses specified on the following page:
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If to GETF: GETF If to RII: Reality Interactive, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxx, 00000 Xxxx 00xx Xxxxxx,
Xxxxx 000 Xxxxx 000
Xxxxxxxxx, XX 00000-0000 Xxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxx Xxxxxxxxx, CFO
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Notice will be effective only upon receipt.
14. MISCELLANEOUS.
(a) ASSIGNMENT, AMENDMENT AND SEVERABILITY. Neither this Agreement
nor any rights hereunder or interest herein may be assigned by either party
without the prior consent of the other, except to a parent, subsidiary or
affiliate of the assigning party. This Agreement and the Exhibits hereto
constitute the entire agreement between RII and GETF. In the event any
provision of this Agreement is found to be void or unenforceable, all
remaining provisions of this Agreement will remain in full force and effect.
(b) GOVERNING LAW. This Agreement and the relationship between the
parties hereto will be governed by and construed in accordance with the laws
of the State of Minnesota.
(c). MODIFICATION. No modification, amendment, supplement to or
waiver of any provision of this Agreement shall be binding upon the parties
hereto unless made in writing and duly signed by all parties.
(d) ARBITRATION. All disputes arising out of this Agreement and
relating to any relationships created hereby will be subject to binding
arbitration. The party seeking arbitration must serve the other party by
certified mail with a written demand for arbitration setting forth the
question for arbitration. Arbitration will be held before a single
arbitrator in the State of Virginia, if arbitration is sought by RII or in
the State of Minnesota if arbitration is sought by GETF. Arbitration will be
pursuant to the rules of the American Arbitration Association, except as
modified by this Agreement. In no event may the arbitrator award punitive
damages. The prevailing party will be entitled to reimbursement from the
other party for all expenses, costs and attorneys' fees incurred in the
arbitration. The parties consent to the jurisdiction of the state and
federal courts in Virginia and the state and federal courts in Minnesota, as
the case may be, for any action to enforce the award of the arbitrator.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed as of
the date written above.
REALITY INTERACTIVE, INC. GLOBAL ENVIRONMENTAL
TECHNOLOGY FOUNDATION
BY /s/ Xxxxxx X. Xxxxxxxxx BY /s/ Xxxxxxx X. Xxxxx
-------------------------------- --------------------------------
ITS Chief Financial Officer ITS Chief Financial Officer
-------------------------------- --------------------------------
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EXHIBIT A
GETF MARKETING, PROMOTION AND ENDORSEMENT COMMITMENTS
1. GETF/IIS will include RII materials in all of its information packages and
will present and demonstrate the Product to appropriate audiences.
2. GETF/IIS will endorse the Product and agree to put both logos on the CD-ROM
and Product packaging.
3. GETF/IIS agree to include video segments of Xxx Xxxxxx into the Product and
demo CD.
4. GETF/IIS agree to allow Xxx Xxxxxx quotations in RII developed marketing and
advertising materials.
5. GETF/IIS agree to work with RII's public relations firm regarding the
marketing, promotion and endorsement of the Product.
6. GETF/IIS agree to provide prominent links to RII, IIS and GNET websites.
7. RII will be kept informed of Xxx Xxxxxx'x (and other GETF employees) travel
schedules and, when possible, RII may schedule a sales call or seminar for
Xxx Xxxxxx or other GETF employees to participate in. GETF agrees to allow
Xxx Xxxxxx to participate in a minimum of 7 such sales calls during the
course of each year.
8. RII will have access to GETF's database for direct mail and other marketing
programs.
9. RII materials will be featured at all GETF conferences and seminars.
10. GETF agrees to make Xxx Xxxxxx available for 3 international sales calls.
RII will make every effort to schedule these calls in conjunction with
GETF's ongoing activities.
RII agrees to pay all of GETF travel costs and related expenses providing
that such travel was not previously scheduled for other GETF activities and
is specifically requested by RII.
During the term of this Agreement, GETF and RII may modify the aforementioned
activities at the agreement of both parties.
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EXHIBIT B (NOT USED)
EXHIBIT C
GETF TRADEMARKS
[LOGO] Global Environment & Technology Foundation
[LOGO]
ANSI/GETF ISO 14000 Integrated Solutions (IIS) (TM)
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EXHIBIT D
RII TRADEMARKS
[LOGO] REALITY INTERACTIVE (TM)
REAL TOOLS FOR ACCELERATED LEARNING (TM)
[LOGO] REALITY INTERACTIVE (TM)
REAL TOOLS FOR ACCELERATED LEARNING (TM)
00
XXXXXXX X
XXXXXXXX XXXXXXXX
Licensor warrants that the optical media on which the Product is
distributed is free from defects in materials and workmanship. Licensor will
replace defective media at no charge, provided you return the defective item
with dated proof of payment to Licensor within ninety (90) days of the date
of delivery. This is your sole and exclusive remedy for any breach of
warranty. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, LICENSOR MAKES NO WARRANTY
OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PRODUCT,
INCLUDING ITS CONTENT, QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE. IN NO EVENT WILL LICENSOR BE LIABLE FOR DIRECT,
INDIRECT, SPECIAL; INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE
OR INABILITY TO USE THE PRODUCT OR DOCUMENTATION. EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL LICENSOR'S LIABILITY EXCEED
THE AMOUNT OF THE LICENSE FEE PAID. THE WARRANTY AND REMEDIES SET FORTH
ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR
IMPLIED. Some states do not allow the exclusion or limitation of implied
warranties or limitation of liability for incidental or consequential
damages, so that the above limitation or exclusion may not apply to you.
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