Exhibit 10.1
Agreement Between the Newspaper National Network and
Global Network Incorporated
This agreement is entered into on this 27th day of March, 2001, between the
Newspaper National Network ("NNN"), a for-profit affiliate of the Newspaper
Association of America located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Global Network Incorporated, a public company located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, hereinafter ("GNI").
RECITALS
1. NNN is in the business of soliciting certain categories of advertising
from advertisers and agencies for insertion as ROP advertising in over one
thousand newspapers participating in its program. When NNN's solicitations are
successful, NNN arranges for the advertising to be placed in accordance with the
customer's wishes, for xxxxxxxx to be made, and for the proceeds, net of NNN's
fees and costs, to be distributed to participating newspapers.
2. GNI is in the business of soliciting advertising from advertisers and
their agencies for insertion on newspaper web-sites in about three hundred
newspapers participating in its program. When GNI's solicitations are
successful, GNI arranges for the advertising to be placed in accordance with the
customer's wishes, for xxxxxxxx to be made, and for the proceeds, net of GNI's
fees and costs, to be distributed to participating newspapers.
3. GNI has expertise in Web site advertising but does not have an adequate
sales force to call upon the advertiser and agency prospects solicited by NNN
and wishes to retain NNN to offer such prospects GNI's web-site coverage in
conjunction with NNN's own solicitations. NNN is willing to make such offers in
return for a commission based on sales of web-site advertising to such
prospects. To provide NNN with the technical expertise needed to make such
offers, GNI is willing to train NNN personnel, prepare research and presentation
materials for their use and undertake the further obligations set out herein.
In consideration of this Agreement and the payments provided herein, the
parties agree as follows:
1. Duties of GNI:
GNI shall provide the following professional services by assignment for
NNN.
Training
GNI will provide sales training to NNN's individual sales people and
prepare presentation materials for their use in dealing with prospects in
the NNN categories.
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Such materials will document the benefits of advertising on newspaper
web-sites and use of GNI software for placing and tracking such
advertising.
Selling
GNI will, upon request from NNN, assist representatives of NNN in
developing sales materials specific to the web-site portion of ROP-web-site
proposals. Such assistance shall include preparing research and
presentations. GNI will accompany NNN staff on sales calls at the sole
discretion of NNN sales executives and will not engage in direct
negotiations with NNN sales contacts.
Ordering and Processing
At the discretion of the NNN sales person, who will be responsible for
directing negotiations, GNI will prepare the portion of any advertising
order dealing with the web-site advertising, as either a stand-alone
proposal or integrated with the NNN submission. Once the client has
approved, GNI will issue the order for the web-site portion to its
newspapers, process the order, handle the billing in a timely manner and
ensure that the client is given any/all documentation that the client
requests to assure compliance with the order. GNI will use reasonable
efforts to resolve any disputes as to compliance to the mutual satisfaction
of the client and the Web site.
Materials
The materials provided by GNI pursuant to this Agreement will be revised as
needed to meet with NNN's approval.
2. Duties and Compensation of NNN:
In conjunction with its ROP solicitations NNN will offer prospective
clients advertising on the GNI newspapers' web-sites using pricing and
terms of sale authorized by GNI. GNI represents and warrants that the
pricing and terms GNI will authorize NNN to quote to prospects are the
prices and terms GNI's newspaper web-sites have established for their
services, augmented by the amount GNI has established, independently or by
agreement with particular newspapers, as compensation for GNI's services.
It is understood that NNN will act strictly as a messenger in transmitting
the total of such prices and terms to prospective clients. NNN will be
under no obligation to solicit advertising outside its categories, or to
solicit advertising for single markets or single newspapers, or engage in
other solicitation outside its normal course of business. NNN will be paid
a commission of 5% of GNI's gross billing to clients for the web-site
advertising. GNI will remit payment directly to NNN within ten days of
GNI's having received payment from the client.
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3. Independence of GNI:
The parties agree that GNI is an independent contractor, not an employee or
agent of NNN for federal, state or local tax purposes. Thus GNI is free to
perform services for a multiple number of unrelated companies at the same
time. It is expressly understood that GNI is not entitled to and
irrevocably waives any rights to participate in any employee benefit
program, including but not limited to salary, pension, severance, insurance
or retirement plan, flexible spending accounts, or leave provided by NNN to
its employees.
4. Subcontractors:
GNI shall have the right to engage one or more subcontractor(s) of its
choosing to perform the services set forth in paragraph 1. Subject to the
provisions of paragraph 7, NNN shall have no right to control the method or
manner by which GNI performs its obligations under this Agreement. Any
subcontractors used by GNI after the effective date of this Agreement shall
be subject to the terms of the Agreement, and GNI will obtain a written
acknowledgment from such subcontractors that they agree to be bound by this
Agreement. GNI shall provide NNN with copies of such written
acknowledgments.
5. Costs:
GNI shall be solely responsible for the costs of providing its services to
NNN, including but not limited to all costs of transportation, tools,
equipment, materials, and all of GNI's other costs in performing the
services. Likewise, NNN will be responsible for the costs of providing its
service.
6. Benefits:
GNI shall be responsible for providing all insurance, retirement plans, and
other benefits, including without limitation personal health and liability
insurance, that may be provided to its employees.
7. Performance of GNI:
GNI shall also bear all risks and expenses associated with or resulting
from GNI's performance under this Agreement. Each of GNI and NNN will
indemnify and hold the other harmless against all claims, losses, damages,
liabilities, expenses and costs, including reasonable attorneys' fees and
disbursements, that GNI or NNN, as the case may be, incur as a result of
the other's breach of its representations, warranties and obligations in
this Agreement. Neither GNI nor NNN will be liable for any indirect,
special, incidental or consequential damages, including lost profits, loss
of business information and the like, even if GNI or NNN, as the case may
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be, has been advised of the possibility of such damages. GNI shall perform
its obligations under this agreement in a manner consistent with the level
of care and skill ordinarily exercised by members of the same profession
under similar conditions. The parties agree that if, after a reasonable
period of time, not to exceed 20 days after GNI is paid by the client, if
NNN has not been paid by GNI, NNN shall have the right to treat such
default as a material breach of this Agreement by GNI entitling NNN to
terminate this Agreement pursuant to paragraph 11.
8. Presentation Materials, Trademark License:
(a) NNN acknowledges and agrees that GNI shall own the exclusive
rights, including but not limited to copyright rights, title, and
proprietary interests in the presentation materials prepared for NNN by
GNI. However, subject to the scope of the license set forth in the next
sentence, GNI hereby grants to NNN a nonexclusive worldwide license to use,
reproduce, prepare derivative works, display, transmit or distribute the
materials or any portion thereof, through any means and in any form now
known or hereafter crafted or invented including, by way of example,
phonographic records, film, microfilm, microfiche, slides, filmstrips,
transparencies, magnetic tape, video cassettes, video discs, floppy discs,
computers, CD-ROM, or any other human or machine-readable medium. The scope
of the license granted is limited to NNN's use of the materials in
accordance with its obligations under this Agreement, and the license will
terminate on the date this Agreement is terminated or expires. GNI warrants
and represents that the materials provided by it or by any subcontractors
that it engages under this Agreement will not violate or infringe any
intellectual property, trade secret, or any other rights of any third
party. GNI further warrants and represents that these materials will not
contain any defamatory, disparaging, or unlawful matter. Upon termination
of this Agreement, NNN will return to GNI any such materials yet to be
delivered to clients, which are still in NNN's possession.
(b) During the term of this Agreement, GNI hereby grants to NNN a
non-exclusive, non-transferable license to use the corporate name "Global
Network, Inc.," and trademarks "Global Network, Inc.," "GNI," "the GNI
System" and brand names and logotypes (now or during the term) associated
with such corporate name and trademarks (collectively, the "GNI
Trademarks") solely in connection with the offering and selling to
prospective advertisers of advertising on GNI newspaper websites in
accordance with the terms of this Agreement. NNN shall not use, directly or
indirectly, the GNI Trademarks in any way other than as expressly permitted
herein and shall protect GNI's rights to the trademark by applying the
symbol(R), TM or SM, as the case may be, to all materials used pursuant to
this Agreement, including advertising and promotional materials. NNN shall
not use the GNI Trademarks as part of its corporate name. NNN acknowledges
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that the GNI Trademarks are the sole and exclusive property of GNI and that
NNN has no rights or claims of any type to the GNI Trademarks except such
rights as are created by this Section 8(b). NNN irrevocably waives and
releases any claim to title and ownership rights in the GNI Trademarks
licensed hereunder.
(c) Both parties recognize and understand the importance of the
other's exercise of control over the quality of the use of NNN and GNI
Trademarks so as to preserve the continued validity of the Trademarks and
to protect the goodwill associated therewith, and shall obtain the prior
approval of the owner of said Trademarks with respect to any utilization.
Both parties agree to discontinue immediately any use of the Trademarks (x)
in any manner that has not been approved by the owner of said Trademarks,
or (y) upon termination of this Agreement. Neither party will knowingly (i)
use Trademarks in any manner or commit any other act that would be likely
to materially jeopardize NNN's or GNI's rights in their respective
Trademarks, (ii) do any act that would invalidate or be likely to
invalidate or impair NNN or GNI Trademarks, or (iii) use, suffer or permit
the use of the Trademarks in any manner that would devalue, injure, demean
or dilute the goodwill or reputation of NNN or GNI or the NNN or GNI
Trademarks in any material respect.
9. Right of First Refusal:
(a) In the event GNI receives from any third party a bona fide offer
(the "Offer") to purchase all or part of GNI's Intellectual Property Rights
(defined below), and GNI wishes to sell such Intellectual Property Rights
pursuant to the Offer, GNI shall promptly furnish to NNN a written notice
(the "Offer Notice") setting forth in reasonable detail the terms and
conditions of the Offer.
(b) The Offer Notice shall be deemed to be an offer to NNN to purchase
the same Intellectual Property Rights proposed to be purchased in the Offer
on the same terms and conditions as the Offer, and NNN shall have the right
for thirty days from the date it receives the Offer Notice to elect to
purchase the same Intellectual Property Rights proposed to be purchased in
the Offer by delivering to GNI, within such period, a notice accepting the
Offer Notice (the "Notice of Acceptance").
(c) In the event that any Notice of Acceptance is timely delivered,
GNI and NNN shall proceed to consummate the transaction in accordance with
the terms of the Offer and this Agreement.
(d) The closing of any purchase of such Intellectual Property Rights
shall take place not more than thirty days after the date of the Notice of
Acceptance or on other date as may be mutually agreed to between GNI and
NNN.
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(e) In the event that a Notice of Acceptance is not timely delivered,
then GNI may proceed to sell such Intellectual Property Rights to the
offeror pursuant to the terms of the Offer. In the event that the sale is
not consummated within sixty days after the last day on which a Notice of
Acceptance could have been delivered, then the provisions of this Section 9
shall again apply to such Intellectual Property Rights.
For purposes of this Section 9, Intellectual Property Rights shall be
defined as all inventions, trademarks, patents, trade names, copyrights,
software, licenses, designs, technology, trade secrets, test procedures,
processes, route lists, computer programs, computer discs, computer tapes,
and other confidential information, and similar intangible property rights,
that are patentable or copyrightable (or otherwise subject to legally
enforceable restrictions or protections against unauthorized third party
usage), and any and all applications for such registrations or renewals and
reissuance of, any of the foregoing.
10. Term:
This Agreement will cover the period commencing on March 27, 2001, and
ending on March 26, 2002, and may be renewed on mutual consent of both NNN
and GNI. Either party may cancel this agreement with 60 days written notice
to the other party.
11. Termination:
Upon a material breach of this Agreement that remains uncured for a period
of ten days after written notice by the non-breaching party to the
breaching party of such breach, the non-breaching party may terminate the
Agreement by providing the breaching party written notice of its intent to
treat the Agreement as terminated. Upon termination, the non-breaching
party may exercise any other legal rights it may possess. Further, the
failure of the non-breaching party to exercise its right to terminate may
not be construed as a waiver of any legal rights or remedies to which it is
entitled.
12. Entire Agreement:
This agreement states the entire agreement and understanding of the parties
concerning the subject matter of this Agreement, and cannot be modified or
amended except in writing signed by the parties.
13. Notice:
Any notice to be given under this Agreement by either party to the other
may be effected by personal delivery or by registered or certified mail
(effective upon receipt) as follows:
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If to GNI: Xxxxx X. Xxxxx
Chief Executive Officer
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
If to NNN: Xxxx X. Xxxxx
Assistant to General Counsel and
Director, Legal Affairs
Newspaper Association of America
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
14. Force Majeure:
Neither party shall be deemed in breach or default of this Agreement or any
provision hereunder to the extent that any delay or failure in the
performance of its obligations results from an act of God or public enemy,
civil unrest, fire, flood, earthquake or unusually severe weather beyond
its reasonable control and without its fault or negligence.
15. Separability:
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
nevertheless will continue in full force without being impaired or
invalidated in any way.
16. Arbitration:
(a) General. Any controversy or claim arising out of or relating to
this Agreement shall be finally resolved by arbitration pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. Any
such arbitration shall take place in New York, New York, before three
arbitrators, one of which shall be appointed by NNN and one by GNI, and the
third by the arbitrators so appointed; provided, however, that the parties
may by mutual agreement designate a single arbitrator. The parties further
agree that (i) the arbitrators shall be empowered, and the parties hereby
request the arbitrators to, include arbitration costs and attorney fees in
the award to the prevailing party in such proceedings and (ii) the award in
such proceedings shall be final and binding on the parties. The arbitrators
shall apply the law of the State of New York, exclusive of conflict of laws
principles, to any dispute. Judgment on the arbitrators' award may be
entered in any court having the requisite jurisdiction. Nothing in this
Agreement shall require the arbitration of disputes between the parties
that arise from actions, suits or proceedings instituted by third parties.
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(b) Consent to Jurisdiction; Service of Process. Each party submits to
the jurisdiction and venue of the arbitration described in Section 16 and
to the jurisdiction and venue of the federal and state courts sitting in
New York, New York, for the enforcement of any judgment on the arbitrators'
award, and waives any objection it may have with respect to the
jurisdiction of such arbitrations or courts or the inconvenience of such
forums or venues. Service of any demands for, or any notice with respect
to, arbitration hereunder or any service of process may be made by
registered or certified mail or by personal delivery, in any case return
receipt requested. Nothing herein shall be deemed to affect any right to
serve any such demand, notice or process in any other manner permitted
under applicable law.
17. Confidentiality:
Any materials delivered by one party to the other pursuant to this
Agreement that the delivering party reasonably determines to be
confidential shall be reduced to writing and marked conspicuously as
"Confidential" with a cover page containing a brief description of the
contents to enable the receiving party to decide whether it wishes to
accept the delivery.
(a) As to any such information, for a period of five years, (i) all
parties agree that such information may constitute trade secret and
proprietary and confidential information; (ii) each party will keep the
other party's information confidential and not disclose it to anyone other
than its employees and agents who need to know it in order to perform their
respective obligations under this Agreement; (iii) each party will only use
such information to perform its obligations under this Agreement; (iv) each
party will return the information and any copies, abstracts or summaries
back to the other party upon the termination or expiration of this
Agreement, or earlier if the other party asks for them; and (iv) each party
will take steps to maintain the confidentiality of the information
comparable to those the party takes with regard to its own confidential
information.
(b) A party will not be required to keep such information confidential
if (i) it is or becomes publicly available other than as a result of such
party's conduct; (ii) it becomes available to such party from a source
other than the would-be disclosing party, and that source was not bound by
a confidentiality agreement with the would-be disclosing party; (iii) such
party can show that it already knew the information before the disclosing
party disclosed it; or (iv) such party is required to disclose the
information by law, legal process or court order, and in that case, the
other party will notify the other promptly to permit the party a reasonable
opportunity to seek to limit the disclosure. NNN acknowledges that GNI may
be required to disclose the terms of this Agreement in its filings with the
Securities and Exchange Commission, and that this Agreement may have to be
filed publicly with such filings.
18. Applicable Law:
The terms of this Agreement shall be governed by the applicable Federal
laws of the United States and by the laws of the State of New York without
giving effect to any conflicts of law principles.
19. Prior Agreements:
This agreement supersedes all prior agreements of the parties.
Newspaper National Network
GNI
By: /s/ Xxxxxxxx Xxxxxxxxxxx Xx. By: /s/ Xxxxx X. Xxxxx
---------------------------- ------------------------------
Xxxxxxxx Xxxxxxxxxxx Xx. Xxxxx X. Xxxxx
President & GM President/CEO
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