EXHIBIT 10.35
BLITZ MARKETING
AGREEMENT
THIS AGREEMENT made this November 19th, 1998, by and between Blitz Marketing,
inc. and FLEX MARKETING, INC., a National Boston Medical Co. ("Client").
WHEREAS, Client is in the business of selling its products and/or services via
direct marketing to consumers who respond to television or print advertising
using toll-free telephone numbers ("Customers"); and
WHEREAS, Blitz Marketing is engaged in the business of marketing discount buying
club memberships; and
WHEREAS, Client desires to make available the discount buying club memberships
offered by Blitz Marketing to its Customers; and
WHEREAS, Some Customers will elect to purchase Blitz Marketing discount club
memberships ("Members").
NOW, THEREFORE, in consideration of the mutual undertakings hereinafter set
forth and other good and valuable consideration, the parties agree as follows:
1. Client's Duties.
(a) Client shall, at its sole expense, market the discount buying
club memberships listed in Schedule A attached hereto ("Services") to all
Customers. The parties understand and agree that the products and services
included in the Services may change at the sole discretion of Blitz Marketing.
In such a case, Blitz Marketing shall provide to Client an amended Schedule A,
and those products and services shall be included under the definition of
"Services" as used herein and subject to the terms and conditions of this
Agreement.
(b) Client will cause its inbound telemarketing service to read to
every Customer at the end of the inbound script Client provides to its service,
the script attached hereto as Schedule B (or as amended from time to time at
Blitz Marketing's sole discretion), or other marketing materials provided by
Blitz Marketing ("Offer"). Client shall not amend, alter or edit such script or
other marketing materials without Blitz Marketing's prior written approval.
Client will not offer or market Services to any person or entity other than its
Customers without the prior written consent of Blitz Marketing.
(c) Client shall cause its inbound telemarketing service to provide
to Blitz Marketing (or its designee) daily, except on weekends and holidays, via
electronic medium the following information for those Customers who purchase
Services ("Memberships"): (i) name; (ii) address; (iii) telephone number; and
(iv) credit card type, number and expiration date. Blitz Marketing acknowledges
and agrees that Client will have no obligation to provide to blitz Marketing
information about sales of Client's products via direct response advertisement.
(d) Client shall provide to Blitz Marketing by facsimile transmission
a daily report showing the number of Offers made and Memberships sold for each
of Client's products.
2. Blitz Marketing's Duties.
(a) Blitz Marketing will provide to Client a telemarketing script
and./or other marketing materials for use with in marketing the Services.
(b) Blitz Marketing, at its sole expense, will perform all
fulfillment activities in connection with the Memberships, including providing
the buying club services, customer service, processing cancellations, issuing
refunds and collecting membership fees.
(c) Blitz Marketing shall pay to Client a $12.50 fee (the "Signup
Fee") for each new membership generated by Client. Client is responsible for all
telemarketing charges incurred for the reading of the script to its Customers.
Blitz Marketing shall Reimburse client, from the Signup Fee for
Telemarketing Fees to include: per read charges by Answering Service plus any
additional fees charged by the Answering Service for including the Script and
providing reports to Blitz Marketing.
Client Shall invoice Blitz Marketing bi-weekly for the prior two
weeks activities for Telemarketing Fees as specified above. Blitz Marketing
shall pay client for the Telemarketing Fees within 15 days of receipt of
invoice.
Client Payment for the balance of the Signup Fee of Memberships shall
be made on a monthly basis 45 days after the end of each month.
(d) Blitz Marketing shall pay to Client $10.00 per renewed Membership
("Renewal Fee") that is renewed annually. Payment of the Renewal Fees will be
made 45 days after the completion of each renewal year for each Membership.
3. Indemnities.
(a) Blitz Marketing shall indemnify and hold harmless Client, as well
as the employees, officers, directors and agents of Client from and against any
actual or threatened claims, damages, charges, judgments, liabilities and
expenses actually and reasonably incurred by or imposed against Client,
including Client's actual attorneys' fees arising from a breach by Blitz
Marketing of its warranties and representations contained in this Agreement.
(b) Client shall indemnify and hold harmless Blitz Marketing, as well
as the employees, officers, directors and agents of Blitz Marketing from and
against any actual or threatened claims, damages, charges, judgments,
liabilities and expenses actually and reasonably incurred by or imposed against
Blitz Marketing, including Blitz Marketing's actual attorneys' fees arising from
a breach by Client of its warranties and representations contained in this
Agreement.
4. Non-compete.
During the term of this Agreement and for one year thereafter,
neither Client nor any of its affiliates or subsidiaries shall, directly or
indirectly, alone or in connection with others, purchase market, administer,
permit the marketing of or otherwise make available to Members or Customers any
products, programs or consumer membership services similar to those listed in
Exhibit A hereto.
5. Confidentiality.
The parties shall hold in strict confidence and will not use
otherwise than in connection with this Agreement all non-public, proprietary,
and other confidential information with regard to the business operations of the
other party, including, but not limited to, pricing, scripts, vendor networks,
financial information, plans and strategies furnished to the other party or
which become known to such party because of this Agreement. Nothing herein shall
apply to information that is publicly available, acquired form any third-party
without any obligation to maintain confidentiality, or is independently
developed by the receiving party without use of any confidential information of
the disclosing party. Nothing herein shall prohibit the receiving party from
disclosing any confidential information to its auditors, tax consultants, or
attorneys or the filing of documents as required by law.
6. Intellectual Property.
This Agreement shall not convey any license to Blitz Marketing or
Client to use the other party's trademarks or copyrights, other than in
connection with the performance of the obligations hereunder. All right, title
and interest in and to any trademarks or copyrights owned by Blitz Marketing is
and shall remain the sole property of Blitz Marketing and neither Client, nor
any third party shall acquire any right, title or interest in such trademarks or
copyrights. Client agrees not to dispute or challenge the validity of or contest
the rights of Blitz Marketing in or to any of its trademark or copyrights.
7. Term.
The term of this Agreement shall be one year from the date of
execution and shall automatically renew for successive one-year periods unless
either party gives written notice of termination 30 days prior to the end of any
one-year period. Upon notice of termination by either party, Client shall
immediately stop reading Blitz Marketing's script, and Blitz Marketing shall not
be responsible for further payment of fees hereunder.
8. General Provisions.
(a) Neither party is the employee, partner, joint venture, agent or
legal representative of the other party for any purpose, nor shall either party
have the authority to enter into any contracts in the name or on behalf of the
other party.
(b) This Agreement may be assigned only upon the written agreement of
both parties. This Agreement and the rights and obligations herein shall bind
and inure to the benefit of the successors and permitted assigns of the parties.
(c) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and shall supersede all
previous proposals both oral and written and all other communication between the
parties.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the state of California (without regard to conflicts of law
principles) and the parties hereby consent to the jurisdiction of the California
state or federal courts located in Los Angeles Country, California over all
matters relating to this Agreement.
(e) This Agreement may not be amended, modified or supplemented
except by written agreement signed by each party. The waiver of any party hereto
of a breach of any provision of this Agreement shall not operate as a waiver of
any subsequent breach.
(f) The provisions of paragraph 3, 4, 5 and 6 shall survive the ter-
mination or expiration of this Agreement.
(g) Should any part of this Agreement be held invalid, such decision
shall not affect the validity of any remaining portion, all remaining portions
shall remain in effect as if this Agreement has been executed without the
invalid portion.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
BLITZ MARKETING, LLC
By: /s/ Xxxxxx Xxxxxxx By: /s/Xxxxx XxXxxxxx
----------------------- -------------------------
FLEX MARKETING, INC.
11-13-98
Schedule A
The CONNECTIONS Discount Buying Service currently includes significant discounts
on the following products/services:
Movie Tickets
New Cars
Travel
Mortgage Reduction
Home Purchases/Sales
prescriptions, Contact Lens, Vitamins, Eye Wear
Video Rentals and Purchases
Books
Music CDs and Cassettes
Toys and Games
Restaurants
Theme Parks
Activities Information Hotline
Discount Shopping Service for Electronics, Computers, Appliances,
Home Office, Furniture and Home Entertainment Products
Among other products/services.
