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Exhibit 10.11
TELEMARKETING SERVICES AGREEMENT
THIS TELEMARKETING SERVICES AGREEMENT (this "Agreement") is made as of
the 1st day of December, 1998, by and between AmeriVision Communications, Inc.,
an Oklahoma corporation ("AmeriVision"), and VisionQuest Marketing Services,
Inc., an Oklahoma corporation ("Marketer").
RECITALS
WHEREAS, AmeriVision sells certain products and services including
long distance services, and would like to contract with Marketer to provide
certain telemarketing services for these products and services on the terms and
conditions set forth herein; and
WHEREAS, Marketer is in the business of providing telephone marketing
services and wishes to provide the services referenced above and further
detailed herein.
AGREEMENT
NOW THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SERVICE; REPORTS.
A. Marketer shall perform and provide the outbound
telemarketing campaign, programs and services as set forth in any Service
Request given by AmeriVision to Marketer identifying the desired programs and
services, and any other information or limitations deemed appropriate by
AmeriVision. Service Requests will be sent to Marketer at least ninety (90)
days prior to the date on which the requested services are to commence.
Marketer can decline a Service Request within ten (10) days of receipt of the
Service Request from AmeriVision. Marketer shall conduct each campaign and
provide information to callers about the things or services being promoted in
accordance with the applicable script(s) and call standards and individual
program goals of AmeriVision. Any change to scripting is conditioned upon
receipt of prior written approval by AmeriVision. Marketer agrees to utilize
its facilities, expertise, knowledge, experience and skill in providing these
services to AmeriVision and shall use its best efforts in providing such
services.
B. Marketer shall provide to AmeriVision monthly reports of
services provided hereunder including such information as is consistent with
accepted industry standards and past business practice. In addition to
information provided in accordance with the previous sentence, Marketer shall
provide such additional information and reports as are, in AmeriVision's
reasonable opinion, necessary or appropriate.
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2. CONFIDENTIALITY.
A. Each party hereto agrees to keep strictly confidential all
the Confidential Information (defined below) as further set forth herein.
B. The term "Confidential Information" shall mean any
information disclosed by or on behalf of one party (the "Disclosing Party") to
the other party (the "Receiving Party"), including but not limited to any
information appearing on credit applications, information relating to either
party's businesses, services, products, processes, formulas, designs, formats,
marketing plans, analyses, strategies, forecasts, research, underwriting
criteria, and names, telephone numbers, addresses, and any other
characteristics, identifying information or aspects of the Disclosing Party's
existing or potential businesses, customers or prospects, and including without
limitation names acquired in performance of this Agreement. Confidential
Information shall not include any information which (i) is or becomes available
to the public other than as a consequence of a breach of any obligation of
confidentiality; or (ii) is disclosed to a final order of a court of competent
jurisdiction.
C. The Receiving Party agrees to hold in strict confidence
and trust all Confidential Information and not to disclose, sell, rent or
otherwise provide, directly or indirectly, any Confidential Information or any
other thing relating to the Confidential Information without the prior written
consent of the Disclosing Party. The Receiving Party shall take all necessary
precautions to prevent the disclosure of the aforesaid information to third
parties, including (at a minimum) by using such procedures as the Receiving
Party uses with its own proprietary or confidential information or any other
information to which it has access in the course of its business. The Receiving
Party may disclose Confidential Information to its employees or agents so long
as such persons agree to be bound by the terms of this Agreement, and in such
case Confidential Information shall only be disclosed to the extent necessary
to fulfill its obligations under this Agreement. The Receiving Party further
agrees that it will use the Confidential Information only in connection with
this Agreement and not for the Receiving Party's own purposes or for the
benefit of anyone not party hereto. The Receiving Party agrees to require any
of its employees or agents who receive Confidential Information to comply with
this Agreement and the Receiving Party agrees to be responsible for any breach
hereof by its agents or employees.
D. When requested by the Disclosing Party, the Receiving
Party hereby agrees to return to the Disclosing Party all Confidential
Information received by the Receiving Party from the Disclosing Party or from a
third party on behalf of the Disclosing Party, together with all copies,
duplicates, summaries, compilations or analyses of such Confidential
Information.
E. In addition to the understanding set forth herein with
respect to the Confidential Information, each party agrees to keep strictly
confidential and not to disclose to any third party, the existence or any
aspect of this Agreement, or of any ongoing or completed negotiations or
business dealings between the parties. Each party agrees that it will not use
or disclose the other party's name, trade name, or any other proprietary
designation(s) except as
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necessary to perform its obligations to or on behalf of such party, without
such party's prior written consent.
F. Each party acknowledges and agrees that in the event it
fails to comply with this Agreement, the other party may suffer irreparable
harm which may not be adequately compensated by monetary damages. Therefore,
each party agrees that, in the event of breach or threatened breach of this
Agreement, the other party shall be entitled to injunctive and/or other
preliminary or equitable relief, in addition to any other remedies available
for such breach or threatened breach.
G. The parties hereto acknowledge and agree that nothing
contained in this Agreement shall be construed as granting to any Receiving
Party any license or other rights to any Confidential Information.
3. OWNERSHIP OF AND RIGHTS TO USE INFORMATION. All information which
is created, obtained or arises as a result of Marketer providing services
pursuant to this Agreement including, without limitation, all of the
information supplied to Marketer by AmeriVision, and any and all rights to use
the same, are and shall remain the property of AmeriVision and may be used and
disposed of as it in its sole discretion sees fit. All such information shall
be considered Confidential Information and shall be treated in accordance with
the terms set forth in Section 2 hereof. Marketer shall have no right, title or
interest whatsoever in the Confidential Information, nor shall it have any
right to use the Confidential Information for any purpose other than as set
forth herein or disclose it to any other party without the prior written
consent of AmeriVision.
4. REPRESENTATIONS AND WARRANTIES. Marketer represents and warrants
that the performance of services pursuant to this Agreement will not violate
any provision of any agreement, undertaking or order to which it is a party or
by which it is bound. Marketer agrees to comply with all applicable local,
state and federal laws, regulations and rules in its performance of this
Agreement. Marketer agrees to comply fully with all scripts and call standards
provided by AmeriVision for each campaign.
5. RETURN OF MATERIAL. Upon completion of work or termination of this
Agreement, Marketer shall promptly return to AmeriVision any and all materials
including, but not limited to, all Confidential Information as set forth in
Section 2 above, which were provided to it by AmeriVision or created by
Marketer in performance of its duties hereunder.
6. INDEMNIFICATION.
A. By AmeriVision. AmeriVision shall indemnify, defend and
hold harmless Marketer, its officers, agents and employees from and against any
and all losses, liabilities, claims, suits, judgments, settlements, damages,
costs and expenses, including reasonable attorneys' fees and related costs,
which may accrue against, be charged to, incurred by or recoverable from
Marketer, its officers, agents or employees as a result of (i) a material
breach by AmeriVision of any representations, warranties, covenants,
undertakings or
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obligations hereunder, or (ii) the negligence or the intentional misconduct of
any director, officer, employee, agent or affiliate of AmeriVision.
B. By Marketer. Marketer shall indemnify, defend and hold
harmless AmeriVision, its officers, agents and employees from and against any
and all losses, liabilities, claims, suits, judgments, settlements, damages,
costs and expenses, including reasonable attorneys' fees and related costs,
which may accrue against, be charged to, incurred by or recoverable from
AmeriVision, its officers, agents or employees as a result of (i) a material
breach by Marketer of any representations, warranties, covenants, undertakings
or obligations hereunder, (ii) the negligence or intentional misconduct of any
director, officer, employee, agent or affiliate of Marketer; or (iii) the
infringement of any third party's patent, trade or service xxxx or other
proprietary rights.
7. FORCE MAJEURE. Performance under this Agreement shall be excused if
rendered impossible or unreasonably difficult by a force or event which cannot
be foreseen, controlled or prevented by the exercise of ordinary prudence,
diligence and care, regardless of the source, origin, identity or character of
the force or event, including, but not limited to, interruptions of electrical
power, heat, light, telecommunication lines or telephones, acts of God, or
governmental intervention resulting from the necessities of war. If performance
of all or any part of this Agreement is prevented by any such force or event,
then performance of this Agreement shall be suspended without penalty to either
party only as to such unperformable portions. Notwithstanding the foregoing
sentence, Marketer shall have a disaster recovery plan in place that will allow
for the continuity of business within 72 hours of any such disruption of
service. In addition, Marketer will practice restoring its system from back-up
tapes at least quarterly.
8. TERM; TERMINATION.
A. This Agreement shall remain in effect for a term of twelve
(12) months from the date hereof unless sooner terminated as set forth herein,
and may be renewed on the same terms and conditions if both parties so elect at
least thirty (30) days prior to the conclusion of the term.
B. Either party shall have the right to terminate this
Agreement if the other party hereto:
(i) breaches any material representation,
warranty, covenant or other obligation under this Agreement and fails to cure
the same to the reasonable satisfaction of the other party within thirty (30)
days after the date of written notice of such breach; or
(ii) becomes insolvent or bankrupt, however
evidenced, including, without limitation, by filing or having filed against it
a petition under the U.S. Bankruptcy Code (11 U.S.C. Section 101, et seq.)
provided, however, that a petition filed under 11 U.S.C. Section 303 shall not
create a right to terminate hereunder unless it remains undismissed for sixty
(60) days after filing.
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C. Rights, obligations or liabilities which arise prior to
the termination of this Agreement shall survive the termination of the
Agreement notwithstanding the provisions of this Section.
9. PAYMENT TERMS.
A. AmeriVision agrees to pay Marketer the fees set forth on
Exhibit A hereto for hours incurred pursuant to the Service Request, which
Exhibit may be modified from time-to-time by written agreement signed by both
parties. AmeriVision shall not be liable for any charges or expenses that
exceed the hours specified in any Service Request multiplied by the applicable
rates set forth on Exhibit A, unless it has first given its written approval
therefor.
B. Payment shall be due within fifteen (15) days from the
date AmeriVision receives the invoice. All invoices shall be in sufficient
detail to permit AmeriVision to determine the amount of time and the nature of
services and expenses for which compensation is sought. Marketer will, upon
request, provide a detailed accounting of all hours incurred and services
provided.
10. RECIPROCITY OF TERMS FOR MARKETER. In the event that Marketer
should wish to have AmeriVision provide telemarketing services to Marketer,
AmeriVision agrees to provide such services, subject to the availability of
reasonably sufficient excess capacity, on the same terms and conditions as
Marketer is providing services to AmeriVision hereunder.
11. NOTICES. Any notice required or permitted to be given pursuant to
this Agreement shall be sufficiently given if delivered by hand or sent by
registered or certified mail, return receipt requested, and if to AmeriVision,
to:
AmeriVision Communications, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Fax: 000-000-0000
and if to Marketer, delivered or sent to:
VisionQuest Marketing Services, Inc.
0000 Xxxxx Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: 000-000-0000
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12. ADVERTISING. Marketer shall not use AmeriVision's name, xxxx,
logo, or any Confidential Information or work as part of any marketing or
promotional endeavor, however styled, without AmeriVision's prior written
consent.
13. SUCCESSOR AND ASSIGNS. All terms and provisions of this Agreement
shall be binding on and inure to the benefit of the parties hereto and their
respective transferees, successors and permitted assigns; provided, however,
that neither party may assign its rights or delegate its duties hereunder
without the prior written consent of the other, and any attempted assignment or
delegation without such consent shall be void.
14. REMEDIES. In the event that a party breaches any of its
obligations set forth in this Agreement, the other party shall be entitled to
exercise any right or remedy available to it either at law or in equity. The
exercise of any particular right or remedy shall not preclude the exercise of
any other right or remedy.
15. WAIVER. The failure by a party hereto at any time or times to
require strict performance of any provision of this Agreement shall in no
manner be construed as a waiver of such party's right at a later time to
enforce the same, nor shall the waiver by any party of a breach of any
provision hereof constitute a waiver of any succeeding breach of the same or
any other provision or constitute a waiver of the provision itself.
16. SURVIVAL. The provisions of Sections 2, 3 and 6 of this Agreement
shall survive termination of this Agreement. The provisions of any other
Section of this Agreement shall survive as stated therein.
17. HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not in any way limit or otherwise affect the meaning
or interpretation of any of the terms hereof.
18. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter hereof and supersedes
any prior oral or written agreements with respect thereto. There are no
representations, covenants, conditions, warranties or agreements between the
parties except those expressed in this Agreement.
19. GOVERNING LAW. This Agreement shall be construed, and the legal
relations between the parties determined, in accordance with the substantive
law of the State of Oklahoma without regard to any conflict of laws provisions
thereof.
20. DISPUTE RESOLUTION. Any controversy, dispute or claim arising out
of or relating to this contract or the performance, construction, enforcement,
breach, termination or validity thereof shall be decided by binding arbitration
held in Oklahoma City, Oklahoma, conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA") as set
forth in this section. Judgment upon the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. An arbitration
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proceeding shall be initiated by any party giving written notice to arbitrate
to the other party, which shall contain a statement setting forth the nature of
the dispute, the amount involved, if any, the remedy sought and the name of the
arbitrator appointed by that party (the "Arbitration Notice"). Within ten (10)
days after the date of the Arbitration Notice, the other party shall appoint an
arbitrator and shall identify its arbitrator in writing to the arbitrator
already appointed and to the other party. The two arbitrators thus appointed
shall appoint a third within ten (10) days of the date of the appointment of
the last of the two arbitrators. If either party shall fail to appoint an
arbitrator within (10) days after the other party shall have appointed first
arbitrator, the party failing to timely make the appointment shall be deemed to
have waived its right to appoint an arbitrator and the arbitrator already
appointed shall be the sole arbitrator. The hearing on the arbitration shall
commence no later than twenty (20) days after the date of the appointment of
the third arbitrator or, if there shall be only one arbitrator as set forth in
the previous sentence, the date of the expiration of the right of the other
party to appointment the second arbitrator. The arbitrator(s) shall render a
decision as rapidly as possible, but in no event later than twenty (20) days
after the commencement of the hearing. In the event of the resignation, death,
or disability of an arbitrator appointed hereunder, the remaining arbitrator(s)
shall continue the arbitration to final conclusion; if the last remaining
arbitrator shall thus be unable to serve, the parties shall appoint new
arbitrators within the time frames set forth above. In addition to monetary
awards, the arbitrator(s) shall have the power to grant appropriate relief
including without limitation specific performance and injunctive relief. The
party against which the award is made shall pay all costs and expenses of the
arbitration, including without limitation costs, expenses, and reasonable
counsel fees.
21. RIGHT TO AUDIT. Marketer's performance, premises and records
relating to this Agreement may be audited by AmeriVision's representatives upon
reasonable notice at reasonable times to ensure compliance with the terms
hereof. Marketer agrees to maintain such books and records as are necessary to
substantiate xxxxxxxx rendered to AmeriVision, which books and records shall be
true, complete and correct and shall be kept in accordance with generally
accepted accounting principles. Marketer further agrees to preserve such
records for a period of at least two (2) years after the date of termination of
this Agreement.
SIGNATURE PAGE FOLLOWS
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[SIGNATURE PAGE FOR TELEMARKETING SERVICES AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized representatives as
of the date first written above.
AMERIVISION COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and CEO
VISIONQUEST MARKETING SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President and CEO
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EXHIBIT A
Hourly Rates for Service Requests
Hours per Month Hourly Rate
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0 - 999 $ 35.00
1000 - 2999 32.50
3000 and higher 30.00
