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EXHIBIT 10.12
PROGRAM AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into on this 14 day
of March, 1997 and effective as set forth in Section I below, by and between PC
Flowers & Gifts, Inc., a Virginia Corporation (PC), whose principal place of
business is located at 0000 Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx,
00000, and Four Farmers, Inc., a Nevada Corporation (FF), whose principal place
of business is located at 0000 XX 00xx Xxxxxx, Xxxxx, Xxxxxxx, 00000.
WITNESSETH:
WHEREAS, FF desires to offer a selection of its product line to consumers
through the PC interactive service;
WHEREAS, PC and FF desire to implement a gift ordering system for
interactive networks which will allow consumers to purchase FF products
(selected by PC and FF) as gifts after viewing a graphic reproduction of these
products through PC's service on interactive networks.
WHEREAS, the parties hereto desire to set forth the terms and conditions
pursuant to which they will cooperate with each other in connection with the
development of a gift service to be offered to consumers through interactive
networks.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other goods and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. TERM
This Agreement shall remain binding upon FF and PC for a two (2)
year period commencing June 1, 1997. Either party will have the option to
terminate this Agreement with a ninety (90) day written notice to the other
party. It is understood by both parties that PC will use its best efforts to
remove the FF products from the service, however, FF agrees to fulfill all
orders secured through the service for ninety (90) days after this Agreement is
terminated by either party, for any reason.
2. OBLIGATIONS OF THE PARTIES
(a) PC's sole obligations under the Agreement hereby shall be to FF
and PC shall have no obligations to any other entity.
(b) FF's sole obligations under the Agreement hereby shall be to PC
and FF shall have no obligations to any other entity.
3. OBLIGATIONS OF FF
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(a) FF will use its reasonable commercial efforts to maintain the
lowest error rate possible for all orders sold through the PC service on
interactive networks. FF will offer a 100% customer satisfaction guarantee to
all PC consumers against delivery of poor quality products or products not
delivered within 24 hours after the confirmed delivery date. In fulfillment of
that guarantee, FF will replace all orders reported by the online consumer as
being of poor quality or un-delivered, which FF confirms was not delivered
within 24 hours of the date delivery was promised. However, FF is not
responsible if the delivery was refused or could not be accomplished because of
an undeliverable or wrong address entered by the online consumer.
(b) FF shall not actively and directly, or through an affiliate,
solicit business from any consumer who purchases an FF product through the PC
service on interactive networks, provided that such consumer is not at the time
of delivery an FF customer. PC hereby acknowledges and understands that FF
provides flowers on a wholesale and retail basis to consumers and other
customers and through program agreements similar to this agreement, by catalog,
brochures, computer on-line networks, through discount buying clubs, direct
advertising, television, telemarketing and other promotional means ('TF's
Business"). PC also understands and agrees that some of the consumer and
recipients of FF's products under this Agreement may also receive FF products
through FF's Business. FF shall not be in default of the provisions of this
agreement if it provides its services to other customers, clients, consumers and
other recipients of FF's Business.
(c) FF should be prepared to spend a reasonable amount of
promotional funds throughout the year in order to participate in promotions to
gain customer awareness for both the PC service and the FF products offered
through the PC service on interactive networks. However, it is understood by
both parties that the amount to be designated for promotional funds is totally
at the discretion of FF.
(d) FF shall determine the pricing of its products and provide PC
the price at which the products will be sold to PC by FF. FF may change the
pricing of its products from time to time upon 30 day notice to PC.
4. OBLIGATIONS OF PC
(a) PC shall develop an interactive service and will offer FF
products as well as other product offerings in various product categories. The
FF products shall be graphically displayed through the PC service on interactive
networks. It is understood by PC that FF may change the photographic
reproductions periodically at its option. All photographic reproductions of FF
products will be supplied by FF to PC on a CD ROM.
(b) PC shall pay all FF invoices net 30 days. All past due amounts
shall bear per them interest at the rate of 1.5% per month after the due date.
(c) PC will use its best efforts to provide the graphic displays of
FF products
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to PC's customers and clients.
5. INDEMNIFICATION
(a) FF hereby agrees to indemnify and hold PC harmless from and
against any and all costs, expenses, claims, suits, actions, damages, or losses,
including reasonable attorney's fees, resulting from any breach by FF of this
Agreement. In connection therewith, FF hereby agrees to indemnify and hold PC
harmless from any claims, suits or other actions alleging that the services or
products provided by FF to PC infringe the patent, copyright, trademark or other
proprietary rights of any third parties and FF will pay all costs, damages and
reasonable attorney's fees finally awarded to any such third party in any
resulting infringement action (or such amounts as may be agreed upon by FF in
any settlement), provided that PC provides prompt written notice to FF of such a
claim, allows FF sole control of the defense of such claim or actions, and fully
cooperates with FF (at FF's expense), in the defense and all related
negotiations.
(b) FF represents to PC that there are no existing contractual
agreements legally prohibiting FF from entering into this Agreement. PC is
relying on this assurance as an inducement to enter into this Agreement.
(c) PC hereby agrees to indemnify and hold FF harmless from and
against any and all costs, expenses, claims, suits, actions, damages or losses,
including reasonable attorney's fees arising from any breach by PC of this
Agreement. In connection therewith, PC hereby agrees to indemnify and hold FF
harmless from any claims, suits or other actions alleging that the services
provided by PC to FF hereunder infringe the copyright, trademark or other
proprietary rights of any third parties and PC will pay all cost, damages and
reasonable attorney's fees finally awarded to such third party in any resulting
infringement action (or such amounts as may be agreed by upon by PC in any
settlement), provided that FF provides prompt written notice to PC of such
claim, allows PC sole control of the defense of such claims or actions, and
fully cooperates with PC (at PC expense), in the defense and all related
negotiation.
(d) PC represents to FF that there are no existing contractual
agreements legally prohibiting PC from entering into this Agreement. FF is
relying on this assurance as an inducement to enter into this Agreement.
6. INSURANCE
(a) FF shall keep in full force and effect at its own cost and
expense during the full term of this Agreement, public liability and property
damage insurance in an amount of not less than three million dollars
($3,000,000.00).
(b) PC shall keep in full force and effect at its own cost and
expense during the full term of this Agreement, public liability and property
damage insurance in an amount of not less than three million dollars
($3,000,000.00).
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7. MISCELLANEOUS
(a) Nothing herein contained shall obligate PC or its
customers to purchase any specific quantity of goods s from FF during the term
of this Agreement.
(b) This Agreement and the Agreement for the Exchange of
Confidential Information set forth the entire Agreement among the parties and
supersedes all prior oral or written agreements, commitments or understandings
with respect to the matters provided for herein, and no modification shall be
binding unless set forth in writing and duly executed by the parties hereto.
This Agreement shall inure to the benefit of and be binding upon both parties
hereto and their respective successors and permitted assigns.
(c) All notices and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given (i) when
delivered in person, (ii) on the third (3rd) business day after being mailed by
first class, certified mail, postage prepaid, or (iii) on the first (1st)
business day after being transmitted by cable, telex, telegram or facsimile and
addressed to the party for whom it is intended, as follows (provided that with
respect to facsimile transmission, notice shall not be effective until written
notice is effectively delivered to the receiving party in the manner provided
for in this section):
i. if to PC Flowers & Gifts, Inc.:
PC Flowers & Gifts, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx XxxXxxxxx
Fax:(000) 000-0000
with a copy (which shall not constitute notice) to:
PC Flowers & Gifts, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxx
Fax: (000) 000-0000
ii. if to Four Farmers:
Four Farmers
0000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: /s/ Xxx XxXxxxxxx
-----------------
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Fax: (000) 000-0000
The foregoing names and addresses may be changed from time to time
by written notice given in accordance with section 7(c).
(d) This Agreement may not be assigned by either party hereto
without the prior written consent of the other party hereto, which consent shall
not unreasonably be withheld.
(e) This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by the laws of the State
of New York.
(f) In the event that one or more of the provisions of this
Agreement shall be deemed invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected of impaired thereby.
(g) Nothing contained in this Agreement shall be deemed to create or
cause either party to be the employee, agent or representative of the other
party or have any other relationships with the other party except as set forth
herein.
(h) This Agreement may be executed in counterparts, each of which
shall be an original, but all of which shall together constitute one (1)
document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by its appropriate offices on the day and year first above written.
PC Flowers & Gifts, Inc.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Its: President
Here unto duly authorized
Four Farmers
By: /s/ Xxxxxxx XxXxXxxxx
---------------------------------
Its: President
Here unto duly authorized
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AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
PC Flowers & Gifts, Inc. (hereinafter "PC") and Four Farmers, Inc. (hereinafter
"FF") agree that the following terms and conditions apply when one of the
parties ("Discloser") discloses confidential information ("Information') to the
other ("Recipient") under this Agreement in connection with a possible
transaction between the parties ("Transaction"). The terms PC and FF shall
include the respective party's affiliates and subsidiaries, if any. The rights
and obligations of the parties hereto therefore also shall inure to such
affiliates and subsidiaries and may be enforced directly by or against such
affiliates and subsidiaries. PC and FF agree that our mutual objective under
this Agreement is to provide appropriate protection for the Information.
1. DISCLOSURE
The Discloser's and the Recipient's Points of Contact will coordinate and
control the disclosure of the Information. Information will consist of certain
confidential and proprietary information and material, including without
limitation data, reports, interpretations, forecasts and records, containing or
otherwise reflecting information concerning the Discloser and its affiliates and
subsidiaries, which is not available to the general public, and may be in
written, visual, oral, encoded, graphic, magnetic, electronic or in any other
tangible or intangible form.
Information should be marked with a restrictive legend of the Discloser. If
Information is disclosed orally, the Information will be identified as
confidential at the time of disclosure. A Point of Contact may be changed by any
party at any time upon written notice to the other. However, if the discloser
fails to identify the information as confidential, that will not preclude the
information from being confidential.
Points of Contact: PC Xxxxxxx X. Xxxxx
FF Xxxxxxx XxXxXxxxx
2. OBLIGATION OF CONFIDENTIALITY
The Recipient will use commercially accepted standards of care, which shall at a
minimum be at least the same level of care and discretion to avoid disclosure,
publication, or dissemination of Information as it uses with its own similar
information that it does not wish to disclose, publish or disseminate. The
Recipient may use Information only for the purpose of evaluating the
transaction. The Recipient may disclose Information to: a) its officers,
directors and employees and officers, directors and employees of its parent and
subsidiary companies who have a need to know; b) its legal and financial
advisors; and c) with the Discloser's prior written consent, any other party.
Before disclosure to any of the above parties, such party shall be made aware by
Recipient of the obligation of confidentiality with respect to Information in
accordance with this Agreement and such party shall agree to comply with such
obligations. The Recipient may disclose Information where Recipient shall be
compelled by force of law. However, where Recipient shall be compelled by force
of law to
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disclose such information, the Recipient, if so requested by Discloser and at
Discloser's expense, must first give the Discloser prompt written notice and
make a reasonable effort to obtain a protective order.
3. CONFIDENTIALITY PERIOD
Disclosed Information continues to be subject to this Agreement for two years
following the date hereof
4. EXCEPTIONS
No obligation of confidentiality applies to any Information that the Recipient:
a) already possesses without obligation of confidentiality; b) develops
independently; or c) rightfully receives without obligation of confidentiality
from a third party.
No obligation of confidentiality applies to any Information that is, or become,
publicly available without breach of this Agreement.
Discloser retains title to the Information and each party hereby acknowledges
that the Information is proprietary to the Discloser. Neither this Agreement nor
any disclosure of Information grants the Recipient any license under any patents
or copyrights.
5. DISCLAIMERS
THE DISCLOSER PROVIDES INFORMATION ON AN "AS IS" BASIS.
Disclosure of Information containing business plans is for planning purposes
only. The Discloser may change or cancel its plans at any time. Therefore, use
of such Information is at the Recipient's own risk. The Discloser will not be
liable for any damages arising out of use of Information.
6. INJUNCTIVE RELIEF
The parties recognizes that disclosure of Information by Recipient contrary to
the provisions hereof will give rise to irreparable injury to the Discloser,
inadequately compensable in damages, and that, accordingly, Discloser may seek
and obtain injunctive relief against the breach of the within undertakings, in
addition to any other legal remedies which may be available.
7. GENERAL
This Agreement does not require either party to disclose or to receive
Information. You may not assign your rights or delegate your duties or
obligations under this Agreement without prior written consent. Any attempt to
do so is void.
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The Recipient will comply with all applicable United States and foreign export
laws and regulations.
Either party may terminate this Agreement by providing one month's written
notice to the other. Any provisions of this Agreement which by their nature
extend beyond its termination will remain in effect beyond such termination
until fulfilled and will apply to either party's successors and assigns.
If there is conflict between the terms and conditions of this Agreement and any
subsequent amendment those of the amendment prevail. Except as modified by a
written amendment signed by the duly authorized representative of the parties,
the terms and conditions of this Agreement remain in full force and effect.
The laws of the State of New York, without giving effect to the conflicts of
laws and principles thereof govern this Agreement.
The parties acknowledge that they have read this Agreement, understand it, and
agree to be bound by its terms and conditions. Further, they agree that the
complete and exclusive statement of the agreement between the parties relating
to this subject shall consist of this Agreement and any amendments. This
statement of the agreement supersedes all proposals or other prior agreements,
oral or written, and all other communication between the parties relating to
this subject. This Agreement may be executed in separate counterparts, each of
which shall be an original, but all of which taken together shall constitute one
and the same instrument. Any reproduction of this Agreement by reliable means
and signed by all parties will be considered an original of this document.
PC Flowers & Gifts, Inc. Four Farmers, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000 0000 XX 00"' Xxxxxx
Xxxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxx 00000
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx XxXxXxxxx
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Name: Xxxxxxx X. Xxxxx Xxxxxxx XxXxXxxxx
Title: President President
Hereunto duly authorized Hereunto duly authorized
Date: 4/14/97 4/14/97
