EXHIBT 10.13
Intercallnet, Inc.
and
Informed Communications Systems, Inc.
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MASTER SERVICES AGREEMENT
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This Agreement made this 20th day of August 2001 between Informed
Communication Systems, Inc. ("ICS") with principal offices located at 0000 Xxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx, 00000 and Intercallnet,
Inc., ("ICN") with principal offices at 0000 X.X. 0xx Xxx, Xxxx Xxxxxxxxxx, XX
00000 (collectively referred to as the "Parties").
WHEREAS ICS is interested in the continued existence of a Telemarketing
and Client Business Development Services relationship with ICN for the
processing of telemarketing calls and Database Management at a ICN production
facility for an assigned ICS client ("Client"); and
WHEREAS ICN, an established telemarketing business, is interested in
providing the necessary facilities, equipment, maintenance, service and
personnel for each assigned ICS Client campaign.
NOW THEREFORE, in consideration of the mutual promises and obligations
of ICS and ICN, as set forth herein, and other good and valuable consideration,
the sufficiency of which is acknowledged by the execution of this Agreement, the
parties agree as follows:
1. As part of the ICS Telemarketing Master Services Agreement, ICN shall
provide facilities, equipment, maintenance, service and personnel
required to establish, maintain and operate the Telemarketing location,
all in accordance with the day to day operating procedures,
telemarketing techniques, training, quality assurance, and control
measures and such other specific instructions (collectively the
"Operating Procedures") as approved by ICS, in an attachment to this
Agreement accepted by ICN. These Operating Procedures may from time to
time be modified in writing by ICS, and accepted by ICN and ICN shall
comply with such updated and/or modified Operating Procedures. The
Operating Procedures shall be reasonable in nature and shall be used
exclusively for the performance of this Agreement. Nothing herein shall
be construed to obligate ICS to generate Operating Procedures. ICS
shall only be obligated to pay ICN under the terms and conditions of
fully executed Operating Procedures attached hereto and made a part
hereof.
2. When ICS or it's client provides records with phone numbers to ICN it
would be in the agreed upon format as specified in each
project-specific attachment ("Project Attachment"). This Master
Agreement will be modified by executed Project Attachments, which will
be a part of this Agreement. ICS will also assist with the development
of mutually approved scripts, order forms and report formats to be used
exclusively for each program. ICN will not make any changes to the
materials or scripts without the consent of ICS. At the termination of
a specific Client campaign, ICN must return all prospect name lists,
completed call records and Client-provided materials and all copies of
material relating to the specified program within 48 hours, by delivery
service of ICS's choice to ICS at ICS's expense provided ICN has been
paid in full for all work performed under this Agreement.
3. ICN acknowledges ICS's responsibility to assure maximum program
performance for each Client campaign. To that end, ICN shall use its
commercially reasonable efforts to:
A. Provide feedback and consult with ICS on ways to improve the script
and other calling materials;
B. Manage the list and call traffic to ensure maximum performance from
each phone agent;
C. Provide ICS with the names and/or identification numbers of all
phone agents and supervisors working on ICS programs prior to the start
of each program and as changes occur;
D. Respect ICS's criteria and promptly adhere to ICS's instructions
concerning the selection and removal of phone agents placing calls on
any ICS program;
E. Allow ICS to conduct training of phone agents and supervisors on the
Client's behalf;
F. Provide sufficient supervision and monitoring daily so that each
agent on each ICS program is silently monitored once per shift;
G. If ICS Client demands stoppage, ICS will provide ICN 24 hour prior
written notice to stop ICS production on any assigned Client campaign;
H. Not subcontract the production of any ICS program.
4. ICN will provide ICS with complete daily call report information by 10
AM EST each business day in the format requested by ICS and shall
provide weekly deliveries of all written reports, call records or other
program specific information. ICN may contact the Client at any time so
long as any such contact is done and identified as a being made as part
of the ICS organization.
5. ICS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR GUARANTEES AS TO THE
VOLUME OF TELEMARKETING SERVICES THAT ICS MAY REQUIRE UNDER THIS
AGREEMENT. ICN MAKES NO EXPRESS OR IMPLIED GUARANTEE AS TO THE RESULTS
OF ITS EFFORTS UNDER THIS AGREEMENT OR THE SUCCESS OF ANY CAMPAIGN.
6. ICN will provide remote monitoring of all phone agents assigned to ICS
program pursuant to the following conditions:
A. ICS may monitor at its discretion any agent on any ICS program
during any scheduled monitoring session.
B. ICS shall have the right to schedule regular monitoring sessions on
a schedule that is mutually agreed upon with the ICN. ICN shall not
cancel scheduled sessions for any reason. ICS's scheduled sessions
shall have priority over conflicts in the monitoring schedule due to
equipment limitations or other NETWORK programs. Should ICN have an
equipment failure that results in a cancellation of scheduled
monitoring sessions more than three times during the Term of this
Agreement, ICS shall have the right to cancel this Agreement.
C. Appropriate floor supervisor or other decision-making individual at
ICN production facility shall be available to discuss and implement
proposed changes during each scheduled monitoring session.
7. The Confidentiality Agreement between ICS and ICN will become part of
this Agreement as Addendum A.
8. ICN will indemnify, hold harmless and defend ICS against any claim,
loss or judgment (including reasonable attorney fees) which ICS may
sustain as a result of any claim, suit or proceedings made or brought
against ICS based upon any acts of gross negligence by ICN and/or ICN's
phone agents, or any unauthorized assertions by ICN and/or ICN's phone
agents on behalf of ICS or ICS's Client, or any illegal practices or
misuse of Confidential Information by ICN or ICN's phone agents. ICS
will indemnify, hold harmless and defend ICN against any claim, loss or
judgment including (reasonable attorneys' fees) which ICN may sustain
as a result of any claim, suit or proceedings made or brought against
ICN based upon any acts of gross negligence by ICS, or ICN's use of any
2
Client approved script provided such use is in accordance with ICS
instructions. In no event will either party be liable for special,
incidental, or consequential damages, including lost profits,
regardless of whether such party was advised of the possibility
thereof.
9. ICN warrants that fees presented in each Project Attachment shall
represent the only fees that ICN will charge ICS for telemarketing and
attendant support services. Any changes in price or fee structure must
be approved by ICS in writing.
10. It is specifically understood that ICS is a project management company
and has the sole right to xxxx and receive payment for services
directly from the CLIENT. ICS shall remit to ICN payments of amounts
due for services described in the Program Attachment within 30 days of
receipt by ICS of ICN's invoice. All past due amounts will bear
interest at the lesser of one and one-half percent (1 1/2%) per month
or the highest interest rate allowable under applicable law. In the
event of such any nonpayment of an invoice, ICS shall be liable to ICN
for the full amount of the invoice plus any and all costs incurred by
ICN in obtaining payment thereof, including, without limitation,
reasonable attorney's fees.
11. The parties hereto agree that at no time during the term of this
Agreement and thereafter after the termination of this Agreement will
either party advise a CLIENT of the nature of the relationship between
the parties hereto in their interaction with the CLIENT during the term
of this Agreement as being anything other than ICN being a member of
the ICS organization.
12. The parties do not have and are not to be deemed to have the
relationship of principal/agent/joint venture, employer-employee, or
partnership. Except as expressly provided for in this Agreement,
neither party is authorized to act for the other in any way. The
parties are acting only as independent contractors, however, in any
representations made by ICN to CLIENT, ICN must represent itself as a
subcontractor of ICS for the purposes of contracted, and negotiated
telemarketing, database management, and business development
activities.
13. Neither party shall be liable for any delay or failure in performance
under this Agreement or for any interruption of services rendered
hereunder, which result directly or indirectly from acts of God, civil
or military authority, acts of public enemies, war, accidents, fires,
earthquakes, the elements or any other cause beyond the direct and
reasonable control of the parties to this Agreement.
14. ICN agrees not to conduct telemarketing programs for any Client of ICS
for which ICN has performed services on behalf of ICS, for a period of
one year from the termination of this Agreement, without ICS's written
consent.
15. This Agreement supersedes any previous written or oral Agreement
between ICS and ICN. Any previously executed program-specific
attachments for current Client campaigns will become Program
Attachments to this Agreement.
16. All notices, demands or communications which are required under this
Agreement, shall be transferred via United States and shall be sent to
the address listed below or such other address as either party may
designate in writing from time to time:
If to ICS: Informed Communication Systems, Inc.
0000 Xxxx Xxxxxxxxxx Xxxx.
Suite: 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx
3
If to ICN: Intercallnet, Inc.
0000 Xxxxxxxxx 0xx Xxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
17. The parties agree that any litigation, controversy or claim arising out
of or relating to this Agreement, or any dispute arising out of the
interpretation or application of this Agreement, shall be conducted
exclusively by a court of competent jurisdiction in Broward County,
Florida. This agreement shall be construed under Florida law. If the
parties mutually agree, the parties may enter into non-binding
mediation of any dispute hereunder.
18. Except as otherwise provided by this Agreement, this Agreement shall
continue for a period of three (3) years from the date identified in
the signature section and shall be automatically renewed for additional
periods of one (1) year unless terminated by either party, provided the
party notifies the other party, in writing, of its intent to terminate
at least 60 days prior to the anniversary date of this Agreement.
19. Failure to comply with any material term or condition of this Agreement
for a period of thirty (30) days following written notice of
noncompliance may result in immediate termination of this Agreement at
the discretion of the party providing notice of such noncompliance.
20. The rights, remedies, and benefits provided by this Agreement shall be
cumulative, not exclusive. Any waiver of the right to object to
noncompliance of this Agreement shall not be construed as a waiver of
further violations. This Agreement constitutes the entire and complete
Agreement between the parties and shall supersede all prior
correspondence, discussions, agreements and understandings, unless
mutually agreed in writing subsequent to the execution of this
Agreement.
21. Any sales or use, employment tax, workers compensation, insurance or
other related expense which may be due and owing as a result of the use
of the facilities, equipment, maintenance, service and personnel at
ICN's facility, shall be the sole responsibility of ICN.
22. AUTHORIZATION. The parties signing this Agreement individually
represent, warrant and guarantee that the entities for which they are
signing this Agreement have taken all steps necessary and proper to
authorize this Agreement and the execution thereof by the parties
signing for them.
For: Intercallnet, Inc.
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/s/ Xxxxxx X. Xxxxxxxxx August 20, 2001
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Signed Date
Name & Title XXXXXX X. XXXXXXXXX, PRESIDENT
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For: Informed Communication Systems, Inc.
/s/ Xxxxx Xxxx August 20, 2001
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Signed Date
Name & Title XXXXX XXXX, VICE PRESIDENT
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