Exhibit 10.1
FULFILLMENT SERVICES AGREEMENT
THIS FULFILLMENT SERVICES AGREEMENT (this "Agreement") is made as of
June 4, 2003, by and between .com Distribution Corp., a Delaware corporation
with offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("DOTCOM"), and
TELE-V, INC, a New York Corporation with offices located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("TELE-V").
RECITALS
WHEREAS, DOTCOM desires to provide to TELE-V, and TELE-V desires to
receive from DOTCOM, fulfillment services under the terms and conditions of this
Agreement and the Schedules (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, DOTCOM and TELE-V hereby agree as follows:
ARTCILE I
SCHEDULES AND FULFILLMENT SERVICE FEES
Section 1.1 Schedules.
(a) The parties acknowledge and agree that the terms and conditions
pursuant to which any and all fulfillment services to be provided by DOTCOM
pursuant to this Agreement shall be set forth in the schedule of even date
herewith and attached hereto as Schedule One, which schedule is incorporated in
and made a part of this Agreement (the "Original Schedule").
(b) From time to time during the term of this Agreement, TELE-V may
request that DOTCOM provide additional services. Any such request shall be in
writing. DOTCOM reserves the right to accept or decline the request to provide
additional services for any reason; provided, however, that DOTCOM shall in good
faith give any such request due and fair consideration. In the event DOTCOM
agrees to provide additional services, the parties shall acknowledge and agree
on terms and conditions pursuant to which the additional services shall be
provided which shall be set forth in an additional schedule (an "Additional
Schedule" and collectively with the Original Schedule, the Schedules"). DOTCOM
shall not commence providing the additional services until the Additional
Schedule has been executed by the parties whereupon it shall be attached to and
incorporated in and made a part of this Agreement.
(c) Commencing as of the date this agreement has been executed and
continuing during the term of this Agreement, subject to the terms and
conditions of this Agreement and any Schedules, DOTCOM shall provide to TELE-V
the services set forth on any such Schedules.
(d) If there shall be a conflict between the terms and conditions set
forth in any Schedule and those set forth in this Agreement, the terms and
conditions of any such Schedule shall control.
Section 1.2 Fulfillment Services Fees. The fees payable to DOTCOM for
the Fulfillment Services provided pursuant to this Agreement shall be set forth
in Schedule One. DOTCOM reserves the right, after the Initial Term (as defined
below) and any Additional Term (as defined below), upon sixty (60) days prior
written notice to TELE-V, to increase the fees for Fulfillment Services provided
on a recurring basis to TELE-V provided that, such annual increase(s) shall not
exceed ten percent (10%) of the price for the applicable fees in effect during
the prior year.
Section 1.3 Call Center Services Fees. The fees payable to DOTCOM for
the Call Center Services provided pursuant this Agreement shall be set forth in
Schedule One. DOTCOM reserves the right, after the initial twelve months and any
additional twelve-month period, upon sixty (60) days prior written notice to
TELE-V, to increase the fees for Call Center Services provided on a recurring
basis to TELE-V, provided that, such annual increase(s) shall not exceed ten
percent (10%) of the price for the applicable fees in effect during the prior
year.
Section 1.4 Postage and Freight. TELE-V shall be responsible to pay
directly required postage, freight and ground shipping costs incurred in
connection with the provision of any services pursuant to this Agreement
pursuant to TELE-V's ongoing arrangements with carriers. If in the discretion of
TELE-V, inventory is shipped pursuant to DOTCOM's ongoing arrangements with
carriers, TELE-V shall be charged and obligated to pay postage, freight and
ground shipping rates at DOTCOM's cost plus fifteen percent (15%). DOTCOM
considers all postage, freight and shipping cost information to be Confidential
Information (as defined in Section 10.1). TELE-V may, at DOTCOM's discretion, be
required to maintain an advanced freight deposit equivalent to an average of
thirty (30 days) freight charges.
Section 1.5 Tax Matters. TELE-V shall pay all state and local sales,
use, property or other taxes (except taxes on DOTCOM's property or net income)
that may be assessed against DOTCOM and TELE-V with respect to this agreement or
the services provided hereby. TELE-V acknowledges that it or its agent is solely
responsible for identifying and resolving sales and use tax collection issues
for product orders, including the necessity of charging, collecting and
remitting such Taxes.
Section 1.6 Reports. The parties agree to provide each other such
reports as are mutually agreed upon, or as either party shall reasonably request
during the performance of all services. TELE-V acknowledges that customized
reports requested may incur computer-programming charges as outlined in Schedule
One. DOTCOM agrees to provide a written estimate of any such charges prior to
developing any requested reports and TELE-V agrees that no development work
shall commence prior to providing written authorization.
ARTCILE II
PAYMENT TERMS
Section 2.1 Fulfillment and All Other Services. DOTCOM shall invoice
TELE-V for services every seven (7) days for all services and postage and
freight if applicable, setting forth (i) a detailed list of all services
provided to TELE-V during the prior seven (7) days (e.g.,
quantity/rate/extension) and (ii) associated charges for the services. TELE-V
shall pay all invoices within fourteen (14) days of receipt.
Section 2.2 Billing Disputes. TELE-V and DOTCOM shall in good faith use
best efforts to expediently resolve any disputed invoice through discussion
between each party's representatives; provided, however, that if the dispute
with respect to the invoice is not resolved within ninety (90) calendar days of
TELE-V's receipt of the invoice, the disputed invoice shall become immediately
due and payable.
Section 2.3 Interest. DOTCOM shall charge interest at a rate of 1% per
month on all receivables not paid within the time periods set forth in Section
2.1. Interest shall accrue commencing on the 45th day after the date of invoice,
and shall continue to accrue until all overdue payments, plus interest charges,
are paid in full.
ARTCILE III
BOOKS AND RECORDS
Section 3.1 Record Keeping. Both parties agree to keep complete and
accurate books of account, records, and other documents with respect to this
Agreement and any Schedule ("Books and Records"). Such Books and Records shall
be kept by both parties for the longer of (i) a period of time consistent with
DOTCOM's general books and records retention policy, or (ii) three (3) years
following expiration or termination of the Agreement.
ARTCILE IV
TERM AND TERMINATION
Section 4.1 Term and Renewal Option.
(a) The initial term of this Agreement shall commence on the date
hereof and shall expire on the third anniversary thereof, unless earlier
terminated in accordance with this Article or elsewhere in this Agreement (the
"Initial Term").
(b) This Agreement shall automatically renew for three (3) additional
one (1) year terms ("Renewal Terms") commencing after the expiration of the
Initial Term and, thereafter, after the expiration of any Renewal Term, unless
either party elects not to renew by written notice to the other party no later
than thirty (30) days prior to the expiration of the Initial Term or any Renewal
Term, as the case may be. During any Renewal Term, this Agreement may be earlier
terminated in accordance with this Article or elsewhere in the Agreement. If
renewed, the terms and conditions in effect under this Agreement and any
Schedule during the prior year shall apply, except for increases in fees
pursuant to Section 1.2.
Section 4.2 Termination. This Agreement may be terminated as follows:
(a) Either party may terminate this contract upon 60 days written
notice.
(b) Breach. By either party, upon thirty (30) days prior written notice
to the other party, in the event of a material breach of this Agreement by the
other party. The written notice shall specify the precise nature of the breach.
In the event the breaching party cures the breach within the 30-day notice
period, this Agreement shall not terminate.
(c) Insolvency. By either party, immediately upon written notice to the
other party, in the event the other party voluntarily files or has filed
involuntarily against it a petition under the United States Bankruptcy Code,
including a petition for Chapter 11 reorganization thereunder, or for the
appointment of a receiver or a trustee of all or substantially all of such
party's property or makes an assignment or petitions for or enters into an
arrangement for the benefit of creditors.
Section 4.3 Other Rights. The rights of the parties to terminate this
Agreement or any Schedule is not exclusive of any other rights and remedies
available at law or in equity, and such rights shall be cumulative. The exercise
of any such right or remedy shall not preclude the exercise of any other rights
and remedies.
Section 4.4 Post-Termination Performance. Notwithstanding any
termination by either party of this Agreement or any Schedule, DOTCOM shall
continue to fulfill all orders from TELE-V's, and TELE-V shall continue to remit
amounts due to DOTCOM under this Agreement or any Schedule, in connection with
any product orders made prior to the effective date of such termination.
Section 4.5 Return Of Proprietary Information. Upon termination of this
Agreement for any reason, each party shall immediately return to the other all
property (including without limitation, Confidential Information and all
material related to any TELE-V's) that it has received from the other party in
connection with the performance of its obligations hereunder except to the
extent such property is needed to fulfill its continuing obligations under
Section 4.4. In such event, such property shall be returned immediately upon the
party's fulfillment of its obligations under such Section 4.4.
Section 4.6 Survival. Sections 3.1, 4.4, 4.5 and 4.6 and Articles VII,
VIII, X and XI shall survive any expiration or termination of this Agreement or
any Schedule.
ARTCILE V
RELATIONSHIP OF THE PARTIES
Section 5.1 Independent Contractors. The relationship created hereunder
between DOTCOM and TELE-V shall be solely that of independent contractors
entering into an agreement. No representations or assertions shall be made or
actions taken by either party which could imply or establish any agency, joint
venture, partnership, employment or trust relationship between the parties with
respect to the subject matter of this Agreement or any Schedule. Neither DOTCOM
nor TELE-V shall have any authority or power whatsoever to enter into any
agreement, contract or commitment on behalf of the other, or to create any
liability or obligation whatsoever on behalf of the other, to any person or
entity.
Section 5.2 Subcontractors. DOTCOM reserves the right to subcontract
with other individuals and businesses for any and all services required to be
performed pursuant to this Agreement and any Schedule. Use of any subcontractor
shall be subject to receipt of the prior consent of TELE-V, which consent shall
not be unreasonably withheld. DOTCOM shall be responsible for all payments to,
as well as the direction and control of the work to be performed by its
subcontractors, if any. Subject to and solely in accordance with the provisions
of Section 1.2, DOTCOM reserves the right to increase its fees upon sixty (60)
days written notice in accordance with any rate increases by subcontractors.
ARTCILE VI
INVENTORY, FACILITIES AND RISK OF LOSS
Section 6.1 General. TELE-V shall provide DOTCOM with sufficient
inventory (the "Inventory") to meet the fulfillment requirements under this
Agreement. DOTCOM shall have no liability to TELE-V or third parties for losses
caused directly or indirectly by TELE-V failure to provide sufficient inventory.
Section 6.2 Title. DOTCOM acknowledges that TELE-V shall retain all
right and title to all inventory and packaging materials, which TELE-V causes to
be delivered to DOTCOM under this Agreement. TELE-V reserves the right to
physically inspect or remove any and all inventory from DOTCOM's possession and
control. TELE-V will maintain all insurance coverages deemed necessary while
goods are stored on location at DOTCOM warehouse(s). DOTCOM will require a copy
of a certificate of insurance from TELE-V reflecting all coverages are in force.
Section 6.3 Risk Of Loss. DOTCOM shall be responsible for all risk of
direct physical loss of the inventory while it is in DOTCOM's possession or
control during the term of this Agreement subject to the limitation contained in
the next sentence. TELE-V waives its right to recover damages from DOTCOM for
any loss of use of the Inventory or loss of income therefore, except to the
extent provided pursuant to Section 8.1 of this Agreement, to the extent any
such loss is covered under any existing warehouseman's legal liability insurance
policy and to the extent of $.15 per pound of the inventory subject to loss.
DOTCOM shall maintain the same levels of insurance coverage on the Inventory as
it maintains with respect to the inventory of other TELE-Vs in the same
warehouse(s).
ARTCILE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Representations and Warranties of DOTCOM. With the
knowledge that TELE-V is relying thereon in entering into this Agreement and any
Schedule hereto, DOTCOM hereby represents, warrants and covenants as follows:
(a) DOTCOM is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware and has the full power and
authority to enter into and carry out the terms of this Agreement.
(b) This Agreement and any and all Schedules constitute the legal,
valid, and binding obligation of DOTCOM, enforceable against DOTCOM in
accordance with its terms except as enforcement may be limited by any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and except as enforcement may be limited by general principles
of equity. DOTCOM has taken or will have taken all corporate action necessary
for the authorization, execution and delivery of this Agreement and any
Schedule, and for the performance by DOTCOM of its obligations under this
Agreement and any Schedule.
(c) Neither the execution and delivery of this Agreement (including the
Original Schedule) nor the consummation or performance of any obligations
hereunder shall, directly or indirectly (with or without notice or lapse of
time) in any material respect, contravene, conflict with, or result in a
violation or breach of any provision have, or give any person the right to
declare or default or exercise any remedy under, or to accelerate the maturity
or performance of, or to cancel, terminate, or modify, or material contract to
which DOTCOM is a party.
(d) DOTCOM is not and shall not be required to give any notice to or
obtain any consent from any person in connection with the execution and delivery
of this Agreement or any Schedule or the consummation or performance of any of
its obligations hereunder.
(e) DOTCOM is not currently in default under any material contract or
agreement.
Section 7.2 Representations and Warranties of TELE-V. With the
knowledge that DOTCOM is relying thereon in entering into this Agreement and any
Schedule hereto, TELE-V hereby represents, warrants and covenants as follows:
(a) TELE-V is a Limited Liability Corporation duly organized, validly
existing, and in good standing under the laws of the State of New York and has
the full power and authority to enter into and carry out the terms of this
Agreement.
(b) This Agreement and the Original Schedule constitute the legal,
valid, and binding obligation of TELE-V, enforceable against TELE-V in
accordance with its terms except as enforcement may be limited by any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and except as enforcement may be limited by general principles
of equity. TELE-V has taken or will have taken all corporate action necessary
for the authorization, execution and delivery of this Agreement and any
Schedule, and for the performance by TELE-V of its obligations under this
Agreement and any Schedule.
(c) Neither the execution and delivery of this Agreement and any
Schedule nor the consummation or performance of any obligations hereunder shall,
with or without notice or lapse of time, in any material respect, contravene,
conflict with, or result in a violation or breach of any provision of, or give
any person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate, or modify,
any material contract to which TELE-V is a party.
(d) TELE-V is not and shall not be required to give any notice to or
obtain any consent from any person in connection with the execution and delivery
of this Agreement or any Schedule or the consummation or performance of any of
its obligations hereunder.
(e) TELE-V is to its knowledge, and at all times during the term of
this Agreement, will remain in material compliance with all applicable laws and
regulations, including, but not limited to, the laws, rules and regulations of
the Federal Trade Commission and the Direct Marketing Association.
(f) TELE-V is not currently in default under any material contract or
agreement.
Section 7.3 Survival. The representations and warranties under this
Section shall survive the termination of this Agreement and any Schedule.
ARTCILE VIII
INDEMNIFICATION, INSURANCE AND LIMITATIONS ON LIABILITY
Section 8.1 Indemnification by DOTCOM. Subject to the limitations
specified in this Article VIII, DOTCOM shall indemnify, hold harmless and defend
TELE-V and each person or entity that is a stockholder, officer, director,
partner, employee, affiliate or agent of TELE-V from and against any and all
losses, claims, damages, liabilities, whether joint or several, expenses
(including reasonable legal fees and expenses), judgments, fines and other
amounts paid in settlement, incurred or suffered by any such person or entity
arising out of or in connection with (i) the accuracy of any representation or
warranty made by DOTCOM hereunder, (ii) any breach of this Agreement by DOTCOM,
or (iii) any negligent act or omission by DOTCOM or its employees or agents in
connection with the performance by DOTCOM or its employees or agents of the
services hereunder, provided such negligent act or omission was not done or
omitted at the direction of TELE-V.
Section 8.2 Indemnification by TELE-V. Subject to the limitations
specified in this Article VIII, TELE-V shall indemnify, hold harmless and defend
DOTCOM and each person or entity that is a stockholder, officer, director,
partner, employee, affiliate or agent of DOTCOM from and against any and all
losses, claims, damages, liabilities, whether joint or several, expenses
(including reasonable legal fees and expenses), judgments, fines and other
amounts paid in settlement, incurred, or suffered by any such person arising out
of or in connection with (i) the inaccuracy of any representation or warranty
made by TELE-V hereunder, (ii) any breach of this Agreement by TELE-V, (iii) any
negligent act or omission by TELE-V or its Employees or agents in connection
with the performance by TELE-V or its employees or agents required of TELE-V
hereunder provided such negligent act or omission was not done or omitted at the
direction of TELE-V, or (iv) any claim or action for personal injury, death,
property damage or other cause of action (A) involving a product liability claim
arising from or relating to products for which services are provided to TELE-V
hereunder, or (B) resulting from alleged defects in, or the inherently dangerous
nature of, TELE-V products that are the subject of this Agreement and any
Schedule.
Section 8.3 Notice And Defense Of Third-Party Claims. If a claim for
indemnification hereunder arises from a claim or demand from a third party, the
rights of the indemnified parties to be indemnified pursuant to this Agreement
and any Schedule shall be governed by the following:
(a) Promptly after receipt by an indemnified party of notice of any
claim, allegation or facts, which may result in a claim for indemnification
hereunder, an indemnified party shall give the indemnifying party prompt notice
thereof. The failure to give such notice shall not affect the indemnified
party's ability to seek reimbursement unless such failure has materially and
adversely affected the indemnifying party's ability to defend the claims.
(b) An indemnified party shall have the right (i) to employ separate
counsel in any action as to which indemnification may be sought under any
provision of this Agreement and to participate in the defense thereof, or (ii)
to the extent that it may wish, jointly with any other indemnified party, to
assume the defense of any such action with counsel reasonably satisfactory to
the indemnifying party but the fees and expenses of such counsel shall be the
expense of such indemnified party unless (x) the indemnifying party has agreed
in writing to pay such fees and expenses, (y) the indemnifying party has failed
to assume the defense thereof without reservation and employ counsel within a
reasonable period of time after being given the notice required above, and as a
consequence thereof the indemnified party has employed separate counsel to
protect its rights, or (z) the named parties to any such action (including any
impeded parties) include both such indemnified party and indemnifying party and
such indemnified party shall have been advised by its counsel that
representation of such indemnified party and the indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them. It is
understood, however, that the indemnifying party shall, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at an time for all such indemnified
parties having actual or potential differing interest with the indemnifying
party.
(c) The indemnifying party shall not be liable for any settlement of
any such action effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such written consent, or if there be
a final judgment against any indemnified party in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified parties
to the extent provided above from and against any loss, claim, damage, liability
or expense by reason of such settlement or judgment.
Section 8.4 Insurance. During the term of this Agreement, DOTCOM will
maintain, with a financially sound insurance company having an A.M. Best rating
of A or better, the following insurance coverage:
(a) commercial general liability insurance with a combined single limit
of $2 million per occurrence for bodily injury, including death and property
damage;
(b) umbrella excess liability insurance with a combined single limit of
$10 million per occurrence for bodily injury, including death, and property
damage;
(c) worker's compensation, occupational disease, employer's liability
with limits of not less than $500,000 per accident for bodily injury and
$500,000 per employee for bodily injury by disease, disability benefit and
similar employee benefit insurance required under the laws of the states where
DOTCOM will perform the services provided for hereunder;
(d) third party fidelity insurance with limits no less than $500,000
per occurrence;
(e) warehouseman's legal liability insurance with a per occurrence
limit of $1,000,000.
(f) DOTCOM will furnish TELE-V with certificates of insurance
evidencing this coverage upon written request.
Section 8.5 Limitation on Liability.
(a) In no event shall either party's liability hereunder include any
special, indirect, incidental or consequential losses or damages, even if such
party shall have been advised of the possibility of such potential loss or
damage.
Section 8.6 Dispute Resolution. To be selected jointly by two mediators
selected by the parties.
(a) If there is any controversy, dispute or claim arising out of or
relating to interpretation or breach of this Agreement, the parties will
endeavor to settle it promptly.
(b) If such a dispute cannot be resolved, the parties will promptly
initiate and participate in good faith mediation of the dispute, with the
mediator to be selected jointly by the parties or, if the parties cannot agree
upon a mediator, by a mediator to be selected jointly by the two mediators
selected by the parties.
(c) If the dispute is not resolved through mediation, the parties will
promptly submit such dispute to binding arbitration in accordance with the
Commercial Arbitration Rules and regulations of The American Arbitration
Association ("AAA") in the City of New York, unless the parties mutually agree
otherwise. The arbitration shall be before a panel of three (3) arbitrators. One
arbitrator shall be appointed by each party to serve on the panel. One neutral
arbitrator shall be appointed by the arbitrators selected by the parties. In the
event of an impasse, the neutral arbitrator shall be appointed by the AAA, and,
if possible, shall have experience handling disputes relating to the fulfillment
industry. Judgment upon the award rendered by the arbitrator(s) may be entered
in any court of competent jurisdiction.
(d) Nothing shall prevent either party from directly seeking injunctive
or other equitable relief from any court or competent jurisdiction in situations
where damages would not adequately compensate for an alleged breach of this
Agreement. By way of illustration and not limitation, such relief would be
appropriate in the case of either party's need to: obtain cooperation of the
other party in litigation; secure the timely delivery of information or
services; or, prevent the disclosure of Confidential Information.
(e) The prevailing party in any mediation, arbitration or legal action
to enforce or interpret this Agreement shall be entitled to recover from the
non-prevailing party all costs and expenses, including reasonable attorneys'
fees, incurred in such action or proceeding.
Section 8.7 Government Actions. TELE-V hereby agrees to promptly
provide DOTCOM copies of all complaints or inquiries received by it from any
governmental agency that in any way relate to or have potential effect on the
services provided hereunder. In the event DOTCOM is required, as a result of any
such action, to change the manner in which it does business in any material
respect, DOTCOM shall have the option to terminate as soon as practicable the
availability of such services hereunder. DOTCOM hereby agrees that it will
promptly forward to TELE-V copies of all written complaints or written inquiries
addressed to DOTCOM from any governmental agency in any way relating to or
having a potential effect on the services provided hereunder.
Section 8.8 Survival. The provisions of this Section shall survive the
termination of this Agreement and any Schedule.
ARTCILE IX
MARKETING MATERIALS
Section 9.1 Both parties agree to act as TELE-V reference for the other
in regard to the subject matter of this Agreement during the term hereof. The
written consent of the other party shall be obtained before the party is used as
a reference in any particular instance.
ARTCILE X
CONFIDENTIALITY
Section 10.1 General. As used herein, "Confidential Information" means
(i) the terms and provisions of this Agreement and any related documents
delivered concurrently herewith, and (ii) all computer hardware, all software,
all data, reports, analyses, compilations, studies, interpretations, forecasts,
records and other materials (in whatever form maintained, whether documentary,
computer storage or otherwise) that contain or otherwise reflect information
concerning TELE-V, DOTCOM, any of their subsidiaries or affiliates, or any
portion thereof, that one party or its Agents may provide to the Receiving Party
or its Agents (as defined below) in connection with this Agreement ("Provided
Information"), together with all data, reports, analysis, compilations, studies,
interpretations, forecasts, records or other materials (in whatever form
maintained, whether documentary, computer storage or otherwise) prepared by the
Disclosing Party. As used herein, "Agents" means, collectively, the respective
directors, employees, controlling persons or attorneys of TELE-V or DOTCOM. As
used herein, the term "person" shall be broadly interpreted to include, without
limitation, any corporation, partnership, trust or individual; the term
"Receiving Party" shall mean the person receiving Provided Information; and the
term "Disclosing Party" shall mean the person providing Provided Information.
Section 10.2 Acknowledgment. The parties hereby agree that all
Confidential Information shall be kept confidential and shall not, without the
prior written consent of the Disclosing Party, be disclosed by the Receiving
Party in any manner whatsoever, in whole or in part, other than to the Receiving
Party's Agents, and shall not be used, directly or indirectly, for any purpose
other than in connection with this Agreement and not in any way inherently
detrimental to the other party. Moreover, TELE-V and DOTCOM agree to reveal
Confidential Information only to their Agents if and to the extent that such
Agents, have a strict need to know such Confidential Information for the purpose
of the Receiving Party satisfying its obligations under this Agreement and are
informed of the confidential nature of the Confidential Information and agree to
be bound by the terms and conditions of this Agreement. TELE-V and DOTCOM shall
each be responsible for any breach of this Agreement by their respective Agents
(including Agents who, subsequent to the first date of disclosure of
Confidential Information hereunder, become former Agents). Moreover, TELE-V and
DOTCOM shall take all reasonably necessary measures to restrain their respective
Agents (and former Agents) from unauthorized disclosure or use of the
Confidential Information.
Section 10.3 Exceptions. Notwithstanding anything in this Agreement to
the contrary, Confidential Information shall not include any information which:
(a) at the time of disclosure to the Receiving Party is generally
available to and known by the public (other than as a result of any disclosure
made directly or indirectly or other action or inaction by the Receiving Party
or anyone to whom the Receiving Party or any of its Agents transmit or
transmitted any Confidential Information);
(b) become publicly available in the future (other than as a result of
a disclosure made directly or indirectly or other action or inaction by the
Receiving Party or anyone to whom the Receiving Party or any of its Agents
transmit or have transmitted any Confidential Information);
(c) was available to the Receiving Party or its Agents on a
non-confidential basis from a source other than the Disclosing Party or any of
its Subsidiaries or affiliates or any of their respective Agents providing such
information (provided that to the best of the Receiving Party's knowledge, after
due inquiry, such source is not or was not bound to maintain the confidentiality
of such information); or
(d) has been independently acquired or developed by the Receiving Party
without violating any of its obligations under this Agreement, provided such
independent development can reasonably be proven by the Receiving Party upon
written request.
Section 10.4 In the event that a party or any of such party's Agents
become legally compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process) to disclose any of the
Confidential Information of the other party, that party or person under the
legal compulsion (the "Compelled Party") from whom such information is being
sought shall, unless prohibited by law, provided the party to whom such
confidential Information belongs with prompt prior written notice of such
requirement so that it may seek a protective order or other appropriate remedy,
or both, or waive compliance with the terms of this Agreement. In the event that
such protective order or other remedy is not obtained, or the other party waives
compliance with the provisions hereof, the Compelled Party agrees to furnish
only such portion of the Confidential Information that the Compelled Party is
advised by opinion of its counsel is legally required to be furnished by it and
shall exercise its reasonable best efforts to obtain reliable assurance that
confidential treatment shall be accorded such Confidential Information.
Notwithstanding the foregoing, to the extent required under applicable state and
federal securities laws, either party may file this Agreement as an exhibit with
federal and state securities filings, provided that each party shall use its
best efforts to obtain confidential treatment of the portions of this Agreement
that contain Confidential Information. In this regard, the party making such
filing shall obtain the prior written consent of the other party, which consent
shall not be unreasonably withheld.
Section 10.5 Use of Confidential Information. Each party shall be
subject to the obligations under this Article X until the expiration of three
(3) years following the termination of this Agreement. Other than as
specifically provided in this Agreement, neither party shall duplicate the
Disclosing Party's Confidential Information for any purpose other than for the
performance of its obligations under this Agreement and for the benefit of the
Disclosing Party; or use the Disclosing Party's Confidential Information for any
reason or purpose other than as expressly permitted in this Agreement.
Section 10.6 Return of Confidential Information.
(a) Upon termination of this Agreement or if either party so requests,
the Receiving Party shall return to the Disclosing Party or destroy all copies
of the Confidential Information in its possession and the possession of its
Agents and will destroy all copies of any Derived Information; provided,
however, that this Agreement will continue to apply to the Confidential
Information and/or Derived Information contained or reflected in such copies.
(b) The Parties agree that TELE-V and DOTCOM would be irreparably
injured by a breach of this Agreement by the other party or its Agents and that
the other party shall be entitled to seek equitable relief, including injunctive
relief and specific performance, in the event of any breach of the provisions of
this Section 10.6. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Section 10.6 by either party or their Agents, but
shall be in addition to all other remedies available at law or in equity.
ARTCILE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Warehouseman's Lien. DOTCOM shall have an enforceable
warehouseman's lien against any and all TELE-v inventory in DOTCOM's
warehouse(s) to secure payment of any and all outstanding obligations of TELE-V
to DOTCOM for the fulfillment Services provided by DOTCOM pursuant to this
Agreement.
Section 11.2 Notices. All notices, demands, requests, approvals,
consents or other communications to be given or delivered under this Agreement
("Notices") will be in writing and will be deemed to have been given (i) when
delivered in person or by courier or confirmed facsimile; (ii) upon confirmation
of receipt when sent by certified mail, return receipt requested; or (iii) five
(5) days after deposit in first class U.S. mail, as the case may be to the
addresses indicated below:
-------------------------------- ----------------------------------
If to DOTCOM: If to TELE-V:
.com Distribution Corp. TELE-V
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Suite 4019
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Executive Vice President & CFO Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Vice President of Marketing
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------- ----------------------------------
or such other addresses as a party may designate from time to time by written
notice to the other party.
Section 11.3 Severability. Whenever possible, each provision of this
Agreement and any Schedule shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or any Schedule is held to be prohibited by or invalid under applicable law,
such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement and any Schedule.
Section 11.4 Amendment and Waiver. This Agreement and any Schedule may
be amended, and any provision of this Agreement and any Schedule may be waived;
provided that any such amendment or waiver will be binding upon any party hereto
only if such amendment or waiver is set forth in writing executed by such party.
No course of dealing between or among any persons having any interest in this
Agreement and any Schedule will be deemed effective to modify or amend any part
of this Agreement and any Schedule or any rights or obligations of any person
under or by reason of this Agreement or any Schedule. The waiver of any default,
or the remedying of any default in any manner, shall not operate as a waiver of
any other prior or subsequent default. No extension of time for the performance
of any obligation or act shall be deemed to be an extension of time for the
performance of any other obligation or act hereunder. No delay or omission by a
party to exercise rights hereunder shall impair any such rights or shall be
construed to be a waiver of any such default or any acquiescence therein.
Section 11.5 Complete Agreement. This Agreement, all Schedules and
exhibits hereto any related documents delivered concurrently herewith, contain
the complete agreement between the parties relating to the services and
supersede any prior understandings, agreements or representations by or between
the parties, written or oral, which may be related to the subject matter hereof
in any way.
Section 11.6 Further Assurances. TELE-V and DOTCOM will each execute
such other documents and take such actions as the other may reasonably request
in order to effect the relationships, services and activities contemplated by
this Agreement and any Schedule and to account for and document those
activities.
Section 11.7 Headings. Section headings contained in this Agreement and
any Schedule are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement and Schedule, respectively, or any purpose, and
shall not in any way define or affect the meaning, construction or scope of any
of the provisions hereof.
Section 11.8 Governing Law. This Agreement and any Schedule shall be
governed by and construed in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of laws thereof.
Section 11.9 Assignment. Neither this Agreement, any Schedule nor any
of the rights, interest or obligations set forth in each may be assigned by any
party hereto without the prior written consent of the other party hereto, which
shall not be unreasonably withheld. Notwithstanding the foregoing, TELE-V shall
have the right to assign this Agreement to any wholly owned subsidiary of
TELE-V, provided that TELE-V guarantees the obligations of any such subsidiary
hereunder. Subject to the foregoing, this Agreement and any Schedule and all of
the provisions thereof will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.10 Interpretation. Each party acknowledges it has
participated in the negotiation and preparation of this Agreement, and has
reviewed this Agreement and had the opportunity to consult with its counsel and
accountants with respect to its terms. Therefore, each party agrees that the
rule of construction to the effect that any ambiguities in a document shall be
interpreted against the drafting party, will not be utilized in the
interpretation, construction, or enforcement of this Agreement, and no
consideration shall be given to the issue of which party hereto actually
prepared, drafted or requested any term or condition of this Agreement or any
Schedule or other instrument subject hereto.
Section 11.11 Force Majeure. Neither party shall be liable for any
failure of or delay in the performance of this Agreement or any Schedule for the
period that such failure or delay is due to act of God, public enemy, war,
strikes or labor disputes, or any other cause beyond the parties' reasonable
control (each "Force Majeure"), it being understood that lack of financial
resources shall not be deemed a cause beyond a party's control. Each party shall
notify the other party promptly of the occurrence of any Force Majeure and carry
out this Agreement and any Schedule as promptly as practicable after such Force
Majeure is terminated. The existence of any Force Majeure shall not extend the
term of this Agreement or any Schedule.
Section 11.12 Counterparts. This Agreement may be signed in any number
of counterparts.
IN WITNESS WHEREOF, the parties hereto executed this Agreement
effective as of the date first set forth above.
COM DISTRIBUTION CORP. TELE-V
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
--------------------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇
Title President & Chief Financial Officer Title Chief Operating Officer
ATTACHMENTS:
Schedule One
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SERVICE RATE UNIT OF MEASURE
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RECEIVING $.33 Per Carton
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DIRECT TO CONSUMER (DR) FULFILLMENT $3.10 Per Order
Includes
Order Processing, Packaging, Returns, Customer Service,
Pick Pack and Ship
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RETAIL SHIPMENT
Includes
Order Processing Pick Pack & Ship $ 1.05+ Per Carton
Storage 12.90
Master Packs
Cartons
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RETAIL WORK ORDERS $23.50 Per Hour
Breaking master packs and assembling displays (each work
order will be quoted separately and approved by Tele-v)
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RETAIL RETURNS $23.50 Per hour
Including QA
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Bundled pricing provided within this schedule is based upon volume and service
requirements as outlined by TELE-V. Any material changes to these specifications
may result in the revision of the current bundled cost.
VOLUME REBATE
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ANNUAL SERVICE REBATE REBATE
REVENUE BILLING % $
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Between $4,000,000 and $4,999,999 1.0% $40,000 to $50,000
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Between $5,000,000 and $5,999,999 1.5% $75,000 to $90,000
--------------------------------------------------------------------------------
Between $6,000,000 and $6,999,999 2.0% $120,000 to $140,000
--------------------------------------------------------------------------------
Greater than $7,000,000 2.5% $175,000+
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