CONSULTATION AGREEMENT
AGREEMENT made as of the 6 day of June , 1997 by and between AUDIO BOOK
CLUB, INC. (hereinafter referred to as "ABC") and XXXXXX DIRECT MARKETING
(hereinafter referred to as the "Consultant").
WHEREAS, Consultant is an independent marketing consultant with
expertise in the direct marketing business; and
WHEREAS, ABC is involved in the direct marketing business, including
without limitation, operating a negative option audio book club and selling
audio books via the Internet.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration and the mutual covenants contained herein, the
undersigned agree to the following:
1. The Whereas clauses recited above are hereby incorporated by
reference as though they were fully set forth herein.
2. The Consultant agrees to assist ABC, on an as-needed basis, with
respect to the following matters:
A. Designing and implementing direct marketing campaigns.
B. Assisting in the selection of direct marketing lists.
C. Reviewing the results of the direct marketing campaign.
D. Recommending and giving advice as to the future growth
and development of ABC's business.
E. Any other matters which ABC may reasonably request, provided
that Consultant has the necessary expertise to provide
such advice.
Any work that the Consultant does for ABC, must be done either pursuant
to a written request Consultant has received from ABC or pursuant to a written
accepted purchase order which is submitted from Consultant to ABC and accepted
in writing by ABC.
3. For the services rendered by Consultant hereunder, ABC agrees to pay
the Consultant on an hourly basis at the rate of Two Hundred Fifty and 00/100
U.S. Dollars ($250.00) per hour (hereinafter the "Consulting Fee"). The
Consultant agrees to provide ABC bi-weekly detailed bills reflecting the time
worked and the matters worked on. Payment will be required within thirty (30)
days of the invoice date and will be made by check made payable to Xxx Xxxxxx.
4. Consultant will also be reimbursed for all expenses incurred by it
on behalf of ABC, provided such expenses are fully documented by Consultant with
appropriate back-up and were pre-approved, in writing, by ABC. Pre-approved
travel time in excess of ninety (90) minutes daily, will be billed at the same
rate as the Consulting Fee.
5. The Consultant acknowledges that the Consulting Fee shall be the
only remuneration or consideration which Consultant receives in connection with
this Agreement and that Consultant will not be entitled to participate in any
fashion in connection with the profits, if any, resulting from Consultants
advice.
6. ABC assumes the risk of reliance upon any advice given by the
Consultant and agrees not to look to the Consultant in the event ABC suffers any
loss, cost or expense as a result of relying upon Consultant's advice, except in
the event of the Consultant's fraud, gross negligence or willful misconduct.
7. It is understood and agreed by the parties hereto, that the
Consultant shall, at all times, and for all intents and purposes under this
Agreement, be deemed to act as an independent contractor and not as an agent,
employee or subcontractor of ABC. The terms of this Agreement shall commence on
the date set forth above and may be terminated by ABC or Consultant at any time;
provided, that Consultant may not terminate this Agreement if Consultant has
been given an assignment which Consultant has commenced, but not yet completed
until such assignment is completed.
8. This Agreement supersedes, in the entirety, all other agreements
which may exist between the parties with respect to the Consultant's services
(other than any agreements which may exist with respect to Xxx Xxxxxx acting as
a director of ABC and confidentiality agreements, including without limitation,
the March 11, 1997 confidentiality agreement from Consultant and Xxx Xxxxxx in
favor of ABC, which agreement is hereby acknowledged to remain in full force and
effect), and all such other agreements, if any, are now null and void and of no
force and effect.
9. This Agreement does not cover nor is it intended to cover services
which Xxx Xxxxxx may provide to ABC as a result of or in connection with being a
director of ABC.
10. This Agreement shall be construed in accordance with the laws of
the State of New Jersey and any action brought by either party shall be
commenced in the courts of the State of New Jersey. The Consultant and the
Company hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of the State of New Jersey located in
Xxxxxx County and the courts of the United States of America located in Essex
County, New Jersey for any and all actions, suits or proceedings arising out of
or resulting from or relating to this Agreement and the transactions
contemplated hereby and the parties agree not to commence any action, suit or
proceeding relating thereto except in such courts. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any such action, suit or proceeding arising out of, resulting from or relating
to this Agreement or the transactions contemplated hereby in such courts and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that such action, suit or
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proceeding brought in any such court has been brought in an inconvenient forum.
11. This Agreement cannot be modified except by written instrument
signed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
"CONSULTANT"
XXXXXX DIRECT MARKETING
By: /s/ Xxx Xxxxxx
---------------------------------
Xxx Xxxxxx
President
/s/ Xxx Xxxxxx
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XXX XXXXXX, Individually
AGREED TO:
AUDIO BOOK CLUB, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Vice Chairman
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