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Exhibit 10.18
MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is entered into by and between
1-800-FLOWERS (the "Company"), a New York corporation with its principle offices
at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, X.X. 00000, and Intelligent Information
Incorporated (the "Marketer"), a Delaware corporation with its principle offices
at Xxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000.
1. Definitions
a. Tag. The term "Tag" means a text reference to the name and/or
trademarks of the Company when included as part of the Service to Users and in
marketing materials distributed by the Marketer and its Business Partners.
b. Impressions. The term "Impressions" refers to the number of times a
User is exposed to the Tag.
c. Sales. The term "Sales" means the sales generated by the Company as
a result of a User making a purchase of Product.
d. Product. The term "Product" means the products or goods offered for
sale by the Company.
e. Business Partners. The term "Business Partners" means third parties
through which Marketer distributes the Services to Users, subject to the terms
of this Agreement.
f. Users. The term "Users" means those consumers who receive the
Service or who are prompted to use the Product.
g. Trademark. The term "Trademark" means the 1-800-FLOWERS name and
logo as such logo appears on marketing materials and in advertising by the
Company.
h. Service. The term "Service" means the information products and
services created by the Marketer and delivered to the User in such a manner that
provides or encourages access to order the Product, e.g., a Tag, an automatic
call feature, etc.
i. Incentives. Promotions offered or provided by the Company designed
to stimulate Sales.
2. Distribution
x. Xxxxx of Rights. Subject to the terms and conditions of this
Agreement, Company grants Marketer a nonexclusive license, as provided for in
this Agreement, to (i) promote the Product to its Business Partners, who shall
have the right to market the Product and distribute it as part of the Service to
Users and (ii) to use the Trademark to market the Product provided the Company
gives its prior written consent to any such uses.
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THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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3. Marketing
a. Promotion. Marketer agrees to promote and market the Product to
prospective Business Partners and Users. The Company will use commercially
reasonable efforts to promote and market the wireless availability of the
Product to its Business Partners.
b. Tags. Marketer shall be responsible for including Tags in accordance
with its production schedule.
c. Use of Trademark. Marketer shall name Company in its formal
promotional and marketing materials relating to the Service. Company agrees that
Marketer has the right, during the term of this Agreement, to use the Trademark
in Marketer and its Business Partner marketing and advertising materials,
subject to the terms of this Agreement, provided Marketer and its Business
Partners include notice that the Trademarks are registered trademarks of
1-800-FLOWERS, Inc. used with permission and provided the Company gives prior
written approval to any such uses. Such use of the brand identification shall be
solely in a manner as previously approved by Company as set forth in
subparagraph d. below.
d. Prior Approval. Marketer agrees to submit to Company for prior
written approval all press releases, advertising or other promotional materials
that use Company names not less than twenty (20) days before the proposed use.
Company shall not unreasonably withhold its approval. Company may grant or
withhold its approval in its sole discretion, but agrees to notify the Marketer
within ten (10) days of any withholds.
e. Incentives. The Company agrees to extend its customary Incentives to
the Marketer and its Business Partners in order to stimulate Users to call for
Product and thereby increase Sales.
4. Provisioning
a. Provision of the Service. Subject to the terms and conditions of
this Agreement, Company shall make available to Marketer substantially all
Products. Company will provide to the Marketer: (i) toll free accesses to its
national customer call center(s), and (ii) call management that allows Company
customer service to acknowledge the User by Business Partner. Such functions
will be provided in conformance with the Technical Specifications set forth in
Exhibit C.
b. Audit. Both Marketer and Company may, during business hours and upon
reasonable notice, inspect and audit the relevant books and records of the other
party for the sole purpose of verifying all information related to payments
under this Agreement. Such inspection and audit shall be at the expense of the
inspecting party.
5. Reporting and Payment
a. Reporting. Company will provide to the Marketer by the 30th of each
month a report indicating the total number of Sales and gross revenues generated
from activity related to the Marketer and its Business Partners for the prior
calendar month.
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BRACKETS HAVE BEEN USED TO IDENTIFY INFORMATION WHICH HAS BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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b. Payment Schedule. Company shall pay Marketer the Fees set forth in
the Payment Schedule in Exhibit B.
6. Term and Termination
a. Term. This Agreement commences on the date last signed (the
"Effective Date"), and shall remain in effect for an Initial Term of three (3)
years. Thereafter this Agreement will automatically renew for one year terms,
unless terminated in writing ninety days prior to any term renewal date by
either party.
b. Insolvency. Either party may terminate this Agreement by written
notice to the other if the other party becomes insolvent, makes a general
assignment for the benefit of creditors, permits the appointment of a receiver
for its business or assets, or takes steps to wind up or terminate its business.
c. Notwithstanding anything to the contrary contained herein, the
Company shall have the right to terminate this Agreement at any time upon 90
days prior written notice to the Marketer.
7. Trademarks
Marketer acknowledges that Company trademarks are claimed to be the
sole and exclusive property of Company. Pursuant to Paragraph 3.d., Company
shall have the right to approve in writing in advance the use of its trademarks
by Marketer for all purposes, including, without limitation, for which approval
given to identify and promote use of the Service. Upon compliance with this
provision and Paragraph 3.d., use of such marks by Marketer for such purposes
shall be deemed approved during the term of this Agreement unless Company
specifically notifies Marketer to the contrary.
8. Limitation of Liability
In no event shall one party be liable to the other for any direct,
indirect, special, exemplary or consequential damages, sustained by a party,
including lost profits, whether or not foreseeable or alleged to be based on
breach of warranty, contract, negligence or strict liability, arising under this
Agreement or any performance under this Agreement.
9. Force Majeure
Neither party shall be liable for any delay or failure to perform under
this Agreement if caused by conditions beyond its control, including but not
limited to fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts; provided, however, no such event shall excuse
any delay or failure to perform by Company of its obligations to make payment to
Marketer under Paragraph 5 of this Agreement. The affected performing party
shall promptly notify the other party of the nature and anticipated length of
continuance of such force Majeure. Should any such failure or suspension of
performance by Company continue for more than one (1) month, then either party
shall have the right to terminate this Agreement without further liability or
obligation on the part of either party.
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BRACKETS HAVE BEEN USED TO IDENTIFY INFORMATION WHICH HAS BEEN OMITTED FROM
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10. Notices
All notices and demands hereunder shall be in writing and delivered by
hand delivery, certified or registered mail, return receipt requested, or
confirmed facsimile transmission at the addresses set forth below (or at such
different address as may be designated by either party by written notice to the
other party). Delivery shall be deemed to occur (i) if by hand deliver, upon
such delivery, (ii) if by mail, four (4) days after deposit with the U.S. Postal
Service, and (iii) if by facsimile transmission, upon receipt.
If to Company:
1-800-FLOWERS
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxx
If to Marketer:
Intelligent Information Incorporated
Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
11. General Terms and Conditions
a. Not Agent. Neither party shall be considered an agent of the other
party, nor shall either party have the authority to bind the other party.
b. No Assignment. Neither party may assign this Agreement without the
written consent of the other party; provided, however, that either party may
assign this Agreement as part of a transaction in which substantially all of the
assets related to its rights and obligations under this Agreement are assigned
to a third party.
c. Governing Law. This Agreement and performance hereunder shall be
construed and governed by the laws of the State of New York. Any dispute agreed
hereunder shall be resolved before the courts of the State of New York of the
USDC in and for the Eastern District of New York.
d. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, and this Agreement shall be construed as
if such provision(s) had never been contained herein, provided that such
provision(s) shall be curtailed, limited or eliminated only to the extent
necessary to remove the invalidity, illegality or unenforceability.
e. Waiver. No waiver of any breach of any of the provisions of this
Agreement shall be deemed a waiver of any preceding or succeeding breach of the
same or any other provisions
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BRACKETS HAVE BEEN USED TO IDENTIFY INFORMATION WHICH HAS BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED
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hereof. No such waiver shall be effective unless in writing and then only to the
extent expressly set forth in writing.
f. Complete Agreement. The parties agree that this Agreement is the
complete and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings and other agreements,
oral or written, between the parties relating to this Agreement.
g. Amendment. This Agreement may not be modified, altered or amended
except by written instrument duly executed by both parties.
h. Not Inference Against Author. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
i. Headings. The headings used in this Agreement are for convenience
only and are not to be construed to have a legal significance.
j. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.
Marketer, by: Company, by:
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxx
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Signature Signature
Xxxxxxx X. Xxxxxxx Xxxxx Xxxx
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Printed Name Printed Name
President VP
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Title Title
Date: 5-6-97 Date: 5-2-97
EXHIBIT A
Description of Product
a) Product shall include a complete set of current products for sale by 1-
800-FLOWERS. b) Marketer intends to include the Product of the Company in its
Service offerings to its Business Partners. A User will be afforded a convenient
and seamless means of connecting from the Business Partner to the Company. In
addition, the Marketer will be providing Service to Users and, under terms of
this Agreement, providing Tags highlighting the Company and/or its Product.
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BRACKETS HAVE BEEN USED TO IDENTIFY INFORMATION WHICH HAS BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED
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EXHIBIT B
Payment Schedule
a) Sales Fees. The Company shall pay Marketer [*], based upon the following
schedule, [*] as a part of the Service. This [*] will be [*]. b) Payment.
Marketer will receive payment by check monthly, by the 30th day of the month
following the month in which the sales were made. Revenue is defined as price of
merchandise net of service, shipping and handling charges, applicable taxes,
discounts, credits and appropriate chargebacks.
EXHIBIT C
Technical Specifications
a) Company will install and maintain toll free number(s) for Marketer to provide
to Users and will maintain the customer service center necessary to offer the
Service via such toll free number. b) Both parties further agree to discuss the
development of an automated interface that would provide the User with the
opportunity to place an order directly with the Company without accessing the
Company's call center.
EXHIBIT D
Addendum
1) Marketer shall operate the Service in compliance with all applicable
laws and regulations. Marketer is solely responsible for obtaining all
required governmental authorizations necessary for the full performance
of its Service as provided for under this Agreement.
2) Marketer hereby represents and warrants that:
a) It is a corporation duly organized and validly existing and in
good standing under the laws of Delaware.
b) It has the full power and authority to enter this Agreement and to
perform its obligations hereunder.
c) The Service and no service to be rendered by Marketer under this
Agreement knowingly infringes or violates any patent, copyright,
trade secret, trademark or other proprietary right of any third
party.
3) The Company shall have the right to treat any customers who purchase
from the Company as its permanent customers for any and all purposes
and that any such customers may be added to its customer lists; which
lists are periodically sold or leased. The Company agrees that it will
make reasonable efforts not to sell or lease such lists to competitors
of the Marketer.
4) That should there be any conflict between the terms of this Addendum
and the form Agreement, then the terms of this Addendum shall prevail.
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5) Marketer will monitor and periodically test the general availability
and operation of the Service and its compliance with the terms of this
Agreement.
6) Company and Marketer agree to keep confidential all information and
materials supplied by the other party and limit access to such
information and materials to those who need to know in order to
implement and carry out the terms of this Agreement.
7) Marketer, its agents, servants and/or employees, agree to defend,
indemnify and hold the Company, is subsidiaries, affiliates and their
respective officers, directors and employees free and harmless from any
and all claims, expenses, costs and liabilities, whatsoever, including
reasonable attorneys fees, arising from the representations made by the
Marketer herein and arising from any acts and/or omissions of Marketer
in carrying out the terms of this Agreement.
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BRACKETS HAVE BEEN USED TO IDENTIFY INFORMATION WHICH HAS BEEN OMITTED FROM
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