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EXHIBIT 6.b
INTERNET GIFT CARD(S) AGREEMENT
THIS INTERNET GIFT CARD(S) AGREEMENT ("Agreement") is made and entered into by
and between NBO, Inc., (hereinafter referred to as "NBO"), a Utah corporation,
with offices located at 0000 X. Xxxxxxxxxx Xxx., Xxxx. X, Xxxx Xxxx Xxxx, Xxxx
00000 and GMRI, Inc., with offices located at 0000 Xxxx Xxxxxxx Xx., Xxxxxxx, XX
00000.
WHEREAS, NBO and various affiliates operate gift certificate sales programs in
the United States; and
WHEREAS, GMRI desires NBO to sell GMRI, Inc., Internet gift cards (the "Cards")
to customers (the "Customers") consistent with Exhibit A (the "Promotion"),
during the dates specified in Exhibit A (the "Promotion Period"); and
WHEREAS, NBO is responsible to the customer for assuring that GMRI, Inc., honors
the Cards and NBO bears financial responsibility to its customers if GMRI, Inc.,
fails to properly honor the Cards; and
WHEREAS, GMRI, Inc. desires NBO to issue Cards as part of the Promotion whereby
Customers could then use the Cards in accordance with the terms and conditions
of the Cards as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and premises
hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. PURCHASE OF GIFT CARDS. [**]
2. RESALE OF GIFT CARDS. [**]
3. GIFT CARD(S). GMRI, Inc. will provide NBO, at no cost, blank, non-valued
gift cards for sales for each of the concepts mentioned in Section 1,
the "Purchase of Gift Cards". NBO will load the value of each purchase
on the Card at the time that NBO makes a sale to the Customer. A Card
represents an amount purchased by a Customer from NBO for use in paying
for food, beverage, and service at a GMRI, Inc., restaurant identified
in paragraph 1 and specified on the Card. [**]
a. VALUE LOAD - The load operation is defined as creating an electronic
record that associates the Serial, or ID, number of each gift card
and the dollar amount of the
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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purchase requested by the customer. Said record shall also contain
the name and address of the Purchaser and Receiver in addition to
the card type (OL, RL, BB, SB). Only upon request from GMRI, Inc,
will Value load records be provided and if requested, they will be
electronically transmitted to GMRI, Xxx.xx an e-mail attachment
within 3 business days from the date of request.
4. GIFT CARD HOLDERS - GMRI, Inc. shall provide NBO with gift card holder
inventory for each GMRI restaurant concept. NBO will neatly stamp or
write, on the inside of the gift card holder, the value of each gift
card. The To/From areas inside the gift card holder will remain blank.
5. CUSTOM PACKAGING - NBO will provide a custom envelope for each GMRI
restaurant concept, with each concept name and logo, for shipping GMRI,
Inc. gift cards and holders. Limited customizing of the envelope will be
available to customers due to laser printer configuration limitations on
small envelopes. GMRI, Inc. will assume all costs of custom packaging,
including, but not limited to, custom envelopes, printing, production,
shipping, etc., on net 30 terms.
a. ARTWORK - GMRI, Inc. shall provide NBO any and all relative artwork
concerning the appearance and design of the envelope(s). GMRI, Inc.
shall have final approval of envelopes and will approve all costs
prior to production. Such approval shall include any and all future
changes.
b. MESSAGING - Customers will have the ability to type a short message
to Card recipient. The message will be printed on the outside of the
custom envelope. Due to envelope size restrictions, messaging may be
limited to stock phrases such as; Happy Birthday, Congratulations,
Thank You, etc., mutually agreed upon by GMRI, Inc. and NBO.
6. SHIPPING - NBO will provide three (3) levels of shipping options for its
customers. NBO prohibits shipping to a third party shipping on all
orders over $100. All orders above $100 must be shipped 2 Day, or
Overnite service. Rates are subject to periodic review and change.
Service levels and shipping charges are as follows:
a. US MAIL - $2.95
b. 2 DAY - $8.95
c. OVERNITE - $14.95
NBO shall bear the risk of loss of the value-loaded cards during
shipping to customer.
7. FUNDS MANAGEMENT - NBO will manage all funds relative to the Promotion,
including, but not limited to the collection of payment from customers
on gift card purchases and shipping fees.
8. FRAUD - GMRI, Inc. and NBO agree to assume equal responsibility for any
and all costs associated with fraudulent claims, other than that
stipulated above in paragraph 6 of this agreement. Fraudulent issues may
include: Non-receipt from U.S. Mail, fraudulent use of the Cards, and
any other fraudulent issues, provided NBO has followed proper procedures
to load the Card(s) upon purchase by a customer and every effort has
been made to cancel the card prior to fraudulent use. In addition,
provided NBO records, on each order, the serial number of each card(s)
shipped via U.S. Mail, including, but not limited to, the following: Ex:
A customer receives a card, uses it, and then makes a claim of
non-receipt, requesting a replacement card. Issues will be mutually
resolved by NBO and GMRI, Inc. on a case-by-case basis. Any replacement
card(s) shall be considered reissues and not subject to the financial
terms and conditions of this agreement.
9. REPORTING - NBO will provide to GMRI, Inc. reports on gift card sales,
by concept, on a calendar weekly basis.
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10. WEB SITE/E-COMMERCE - Using HTML frame environment and Cascading Style
Sheets, NBO will provide GMRI with gift card e-commerce on each GMRI,
Inc. restaurant concept website, providing a seamless transaction for
the Customer.
a. IMAGING - NBO's graphic design team will work with GMRI, Inc.'s
technical staff to ensure that each GMRI, Inc.'s restaurant
concept's unique image is maintained throughout all electronic
transactions on each individual concept's website.
b. LAUNCH - NBO guarantees to meet deadlines associated with GMRI,
Inc.'s October 1, 2000 gift card program launch date.
11. EXCLUSIVITY - The terms of this Agreement are based upon an exclusive
relationship between NBO and GMRI, Inc. concepts identified in Paragraph
1, whereby NBO will be the sole and exclusive company to develop any
Internet HTML interlink connections from any GMRI, Inc. concept web
pages to be used for the purpose of selling GMRI, Inc. concept gift
cards.
12. TRADEMARKS. Both parties hereby grant non-exclusive permission to the
other party to use each others names, trademarks, and design logos
(collectively the "Marks") in the Promotions and any advertising and
promotion thereof for the term of this Agreement throughout the Unites
States only; provided, however, that such use shall be limited to the
use specified herein and only upon each party receiving prior approval
from the other party pursuant to Paragraph 14 below. Except as expressly
provided herein, no right, property, license, permission or interest of
any kind in or to the Marks owned or used by either party or its
affiliates is or is intended to be given or transferred to or acquired
by either party by the execution, performance or non-performance of this
Agreement or any part thereof. Both parties agree that they shall in no
way contest or deny the validity of, or the right or title of either
party or its affiliates in or to the Marks, and shall not encourage or
assist others directly or indirectly to do so, during the lifetime of
this Agreement and thereafter. Neither party shall utilize the Marks in
any manner that would diminish their value or harm the reputation of the
other party. Both parties shall use the other party's Marks in a manner
sufficient to indicate the Marks are owned by that other party and are
being used with permission.
13. APPROVALS. Both parties agree to submit to each other for prior consent,
which consent shall not be unreasonably withheld, samples of all related
advertising and Promotional Materials carrying each party's name, logo,
service marks and/or trademarks, to be used in the Promotion, a minimum
of ten (10) business days prior to being released to the public. Both
parties agree that they shall act in a timely manner in determining
whether or not the consent required will be granted. Upon receipt of a
submission, both parties shall have five (5) business days to approve or
disapprove such submission and if any party has not responded within an
additional five (5) business days, such submission shall be deemed
approved. Any changes in the Promotion must be approved by mutual
written agreement between GMRI, Inc. and NBO. Both parties acknowledge
and agree that participation in, or review or approval of, any part of
the Promotion by either party shall not include review of, or approval
for, conformity with applicable federal, state and local laws and
regulations. Any review by either party of any Promotional Material
shall not relieve either party of its responsibilities to ensure
compliance with all applicable laws and regulations.
14. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
a. Each party agrees that it is authorized to enter into and fully
perform this agreement.
b. Each party represents and warrants that: (i) the content of the
Promotion and the manner in which it is conducted shall be in
conformity with all applicable federal, state or local laws or
regulations governing the conduct of advertising and promotions
generally.
c. Each party agrees to, at all times, defend, indemnify and hold each
other, its parent company, their affiliates, subsidiaries and the
officers, directors, agent, employees, successors and assigns of
each, harmless from and against any and all claims, suits,
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damages, losses, liabilities, obligations, fines, penalties, costs and
expenses (whether based on libel, slander, invasion of privacy, unfair
competition, unfair or improper trade practices or other wrongful
business conduct, conduct in violation of the rules and regulations of
the Federal Trade Commission and analogous state agencies, tort, breach
of contract, product liability, patent, trademark, license or copyright
infringement or otherwise), including legal fees and expenses of
whatever kind or nature (collectively, "Loss"), arising out of or based
on:
i. Any failure by either party to perform any of the agreements,
terms, covenants or conditions of this Agreement to be
performed by each party or any breach of its representations
and warranties contained herein to the extent that such breach
is within the control of the offending party; or
ii. The use of each party's or third party's names, trade names,
trademarks, service marks, designs, logos, identification
symbols or other proprietary designations in the Promotion or
in any advertisement thereof; or
iii. Either party's performance of its obligations under this
Agreement, including without limitation: (i) the use, sale or
offering of any of either party's or third party's products
and/or services pursuant to the Promotion approved hereunder;
or (ii) any and all advertising and promotional activities
provided by either party pursuant to this Agreement,
including, but not limited to, any Loss arising out of or
based upon the broadcast, telecast or publication,
reproduction, distribution, or display of advertisements or
Promotional Materials or any part thereof furnished by either
party, or any third party in connection with this Agreement.
14.1 Either party seeking indemnification under this Agreement (the
"Indemnified Party") shall give written notice to the party required to
provide indemnification hereunder (the "Indemnifying Party") and upon
receipt of such written notice, the Indemnifying Party will promptly
assume and diligently conduct the entire defense of any suit or action,
or the making of any claim as to which indemnity may be sought
hereunder, including all settlements and appeals, at the Indemnifying
Party's sole cost and expense, and the Indemnifying Party shall pay and
discharge any and all settlement amounts, judgments or decrees which may
be rendered.
14.2 The Indemnifying Party shall not, except with the consent of the
Indemnified Party, consent to entry of any judgment or administrative
order or enter into any settlement that (i) could affect the
intellectual property rights or other business interest of the
Indemnified Party; or (ii) does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the Indemnified Party
of a release from all liability with respect to such claim or
litigation.
14.3 In the event that the Indemnifying Party does not accept the
defense of any matter as above provided, the Indemnified Party shall
have the full right to defend against any such claim or demand, and
shall be entitled to settle or agree to pay in full such claim or
demand, in its sole discretion without releasing any obligation or
liability of the Indemnifying Party.
14.4 The provisions of this Paragraph 15 shall survive the expiration or
sooner termination of this Agreement.
15. PRODUCT RECALLS. If a product or service of either party, or any third
party which is included in this Promotion shall be the subject of
material or significant adverse publicity, including without limitation,
market withdrawal, which in the reasonable judgment of either party is
or may be detrimental to the intended purpose of this Agreement, then
either party may elect to terminate this Agreement without liability and
thereafter neither party shall have further obligation under this
Agreement.
16. CONSUMER SERVICE. The parties mutually agree that they will cooperate
with each other in every reasonable manner to deal appropriately with
any customer complaints in connection
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with the Cards. The parties shall each, when necessary or appropriate,
or when reasonably requested by the other, undertake such factual
investigation of customer complaints arising out of loss, theft, damage,
misplacement, or use by the recipients of the Cards. GMRI, Inc. shall be
made aware of any and all Card replacements due to customer complaints
previously outlined in this paragraph and NBO shall assume
responsibility for reissuing, and shipping to customer . GMRI, Inc.
shall assume responsibility for card usage, database and restaurant
related issues. Customer service issues not specifically addressed will
be resolved through the mutual cooperation of NBO and GMRI, Inc.
17. TERM. The term of the Agreement shall commence as of the date written on
the first page hereof and shall continue for a period of [**] months
from such date unless terminated in accordance with the provisions
hereof, provided, however, that all the Cards issued by NBO in the
Promotion prior to any such termination will be valid for the terms
stated on the Cards and provided in Paragraph 14, Section 4. This
Agreement shall not be made effective until an authorized officer of
each party signs such Agreement.
18. ARBITRATION. All claims, disputes, and other matters in question between
the parties hereto arising out of the relationship created by this
Agreement shall be decided in Salt Lake City, Utah, if initiated by
GMRI, Inc. and Orlando, Florida if initiated by NBO, by arbitration in
accordance with the rules of the American Arbitration Association,
unless the parties hereto mutually agree otherwise. The award by the
arbitrator shall be final, and judgment may be entered upon such award
in accordance with applicable law in any Utah, Florida or federal court
having jurisdiction thereof.
19. TERMINATION. Either party may terminate this Agreement immediately if a
Default, as defined below, by the other party has occurred and is
continuing by giving written notice thereof to the defaulting party. The
term "Default" shall mean any of the following: (a) failure of a party
to pay when due any sum of money payable to the other party under this
Agreement; (b) failure by a party to comply with or perform any
provision or condition of this Agreement other than the payment of money
and continuance of such failure for thirty (30) days after written
notice thereof to such party; (c) a party becomes insolvent, is unable
to pay its debts as they mature or is the subject of a petition in
bankruptcy, whether voluntary or involuntary, or of any other proceeding
under bankruptcy, insolvency or similar laws; or makes an assignment for
the benefit of creditors; or is named in, or its property is subject to
a suit for appointment of a receiver; or is dissolved or liquidated; or
(d) any representation or warranty made in this Agreement is breached,
false or misleading in any material respect; or (e) GMRI, Inc.
discontinues their gift certificate and/or gift card programs; in such a
case GMRI, Inc. shall not contract a gift certificate/card program with
any other company for a period of twelve (12) months from the date of
termination of this agreement. In the event of such termination, the
non-defaulting party shall be entitled to pursue any remedy provided in
law or equity, including injunctive relief and the right to recover any
damages it may have suffered by reason of such default. Each party shall
return, to the other party, all materials, software, trademarks,
property, etc., belonging to that party.
20. MISCELLANEOUS.
20.1 FORCE MAJEURE. Neither party hereto shall be considered in default
of this Agreement or be liable for damages thereof, for any failure of
performance hereunder occasioned by an act of God, force of nature,
accident, war or warlike activity, insurrection or civil commotion,
labor dispute, transportation delay, governmental regulatory action
whether or not with proper authority, or other cause similar or
dissimilar to the foregoing and beyond its reasonable control, provided
the party so affected gives prompt notice to the other. In the event of
a suspension of any obligation by reason of this section, which extends
beyond thirty (30) days, the party not affected may, at its option,
elect to cancel those aspects of this Agreement, which are reasonably
feasible to terminate.
20.2 NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given if: (a)
delivered personally to an officer of the party to be
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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notified; or (b) sent by certified mail, postage prepaid, return receipt
requested, to the address set forth below:
If to NBO: NBO, Inc.
0000 X. Xxxxxxxxxx Xxx.
Xxxx. X
Xxxx Xxxx Xxxx, XX 00000
Attn: CEO
If to GMRI, Inc.: Address provided in Exhibit A
Or other such address as may be designated by either party hereto by
written notice to the other hereinabove provided.
20.3 ENTIRE AGREEMENT. This Agreement, together with all Exhibits
attached hereto, represents the entire agreement and understanding
between the two parties with respect to the subject matter of this
Agreement, and supercedes any other agreement or understanding, written
or oral, that the parties hereto may have had with respect hereto.
Specifically, this Agreement replaces in its entirety the agreement
between NBO and GMRI, Inc., signed by the parties on August 4, 2000, and
August 8, 2000, respectively, and this Agreement shall be deemed to have
been in effect from the date of April 1, 2001 and for all purposes,
clarifies the intent of such prior agreement, and does not change the
responsibilities of the parties set forth in the prior agreement. No
statement or inducement with respect to the subject matter by either
party or by any agent or representative of either party which is not
contained in this Agreement shall be valid or binding between the
parties.
20.4 RELATIONSHIP OF THE PARTIES. The parties hereto are independent
contractors, and nothing in this Agreement shall be deemed or construed
to create, or have been intended to create a partnership, joint venture,
employment or agency relationship between the two parties.
20.5 EFFECT OF HEADINGS. The headings and subheadings of the sections of
this Agreement are inserted for convenience of reference only and shall
not control or affect the meaning or construction of any of the
agreements, terms, covenants and conditions of this Agreement in any
manner.
20.6 CONSTRUCTION. This Agreement has been fully reviewed and negotiated
by the parties hereto and their respective legal counsel. Accordingly,
in interpreting this Agreement, no weight shall be placed upon which
party hereto or its counsel drafted the provision being interpreted.
20.7 SEVERABILITY. If any term or provision of this Agreement shall be
found to be void or contrary to law, such term or provision shall, but
only to the extent necessary to bring this Agreement within the
requirements of law, be deemed severable from the other terms and
provisions hereof, and the remainder of this Agreement shall be given
effect as if the parties had not concluded the severed term herein.
20.8 AMENDMENTS. No provision of this Agreement may be modified, waived
or amended except by a written instrument duly executed by each of the
parties hereto. Any such modifications, waivers or amendments shall not
require additional consideration to be effective.
20.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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20.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah, excepting conflict of
laws provisions that may require the application of the law of any other
jurisdiction.
20.11 NO IMPLIED WAIVER. Any failure on the part of either party to
insist upon the performance of this Agreement or any part thereof shall
not constitute a waiver of any right under this Agreement.
20.12 ASSIGNMENT. Neither party may assign its rights or delegate its
obligations under this Agreement without prior written consent from the
other party.
20.13 CONFIDENTIALITY. Each party shall keep the information regarding
the details of this Program confidential and restrict dissemination to
each of its own personnel and to third parties to only a "need to know"
basis, using the standard of care which each uses to protect its own
information from disclosure. The party disclosing confidential
information to its own personnel or third parties shall require that
these persons be bound by the confidentiality obligations set forth in
this Agreement. Notwithstanding the foregoing, such information shall
not be confidential if it is, or after disclosure becomes, part of the
public domain other than through breach of this confidentiality
provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
THIS AGREEMENT WILL NOT BE EFFECTIVE UNTIL SIGNED BY AN AUTHORIZED OFFICER OF
NBO AND GMRI, INC.
GMRI, Inc. NBO, Inc.
By: By:
---------------------------------- ----------------------------------
(Signature) (Signature)
---------------------------------- ----------------------------------
(Print Name) (Print Name)
Title: Title:
------------------------------- ---------------------------------
Date: As of August 4, 2000 Date: As of August 4, 2000
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INTERNET GIFT CERTIFICATES AGREEMENT
EXHIBIT A
Name of Company: GMRI, Inc.
Address of Company:
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State of Incorporation:
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Contact Person for Company:
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Nature of Company's business:
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PROMOTION: Purchases will be made through the GMRI, Inc. restaurant concept
websites (Olive Garden, Red Lobster, Bahama Breeze and Smokey Bones). NBO will
facilitate these purchases and ship the Cards to Customers from its fulfillment
center in Salt lake City, Utah.
PROMOTION PERIOD: Promotion will commence as of the date and year first above
written and continue for a period of [**] months.
Address and person to whom notices are to be sent:
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[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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ADDENDUM A
This document will serve as an addendum, forming an integral part of the
Internet Gift Card(s) Agreement Dated August 4, 2000 ("the Original Agreement")
by and between NBO, Inc., ("NBO"), and GMRI, Inc. ("Customer").
I. SERVICES PERFORMED OUTSIDE THE SCOPE OF THE ORIGINAL AGREEMENT: All
items performed by NBO that are not explicitly part of the Original
Agreement must be requested in written form by Customer. NBO will assess
the resource requirements it estimates are associated with the request
and provide Customer with a detailed scope of work necessary to meet
Customer's request. The scope of work will include related material
costs and man-hours. The estimate will be submitted to Customer for
written approval. Both parties agree that the estimate will serve as an
indication of the costs associated with the services performed outside
the Original Agreement and the Customer is obligated to assume and will
be billed an amount for the costs associated with the actual hours
worked and for the actual materials used, which NBO is obligated to
track and provide to Customer.
II. ASSOCIATED COSTS: NBO will provide Customer with the actual material
costs incurred in performing the work outside the Original Agreement as
contemplated in the estimates. NBO will xxxx Customer $125.00 per hour
for services NBO employees perform to fulfill requests from Customer.
Billing will be provided on a monthly basis and include a detailed
accounting of the charges Customer owes to NBO for services provided and
materials used in completing the Customer's request.
ACCEPTANCE AND ACKNOWLEDGEMENT:
Form GMRI, Inc. For NBO, Inc.
By By:
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(Print Name) (Print Name)
Title: Title:
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Date: Date:
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