EXHIBIT 10.63
MARKETING AGENT AGREEMENT
THIS AGREEMENT is entered into as of this 1st day of June, 2001 by and between
K-12 MICROMEDIA PUBLISHING, INC., a ______________________ corporation, and
HEARTSOFT, INC., a Delaware corporation as follows:
WHEREAS, Heartsoft, Inc.(Heartsoft) wishes to appoint K-12 MicroMedia,
Publishing, Inc. (K-12 MicroMedia) an educational reseller based in Mahwah,
New Jersey, to serve as a marketing agent to New York City Board of Education
(NYC BOE) for Heartsoft products covered under the New York City Board of
Education contract OMA number 1Z729, item class number 6, effective March 20,
2001 through July 31, 2003, the following terms and conditions have been
mutually agreed upon:
1. K-12 MicroMedia will provide the following marketing services to New
York City Board of Education schools:
A. Distribute Heartsoft NYC BOE Price Lists and product
information to school and district contacts on a regular
basis, but no less than twice per school year.
B. Feature Heartsoft products, promotions and pricing in a
predominate place in K-12 MicroMedia newsletter and catalogs
distributed to NYC BOE schools.
C. Feature and demonstrate Heartsoft products in a predominate
location within the K-12 MicroMedia booth at regional
technology conferences held by the NYC BOE, at no less than
four conferences per school year.
D. Conduct product demonstration to district and school personnel
for qualified purchase opportunities.
E. Provide a link from the K-12 MicroMedia website to Heartsoft
website, including a link to promote Internet Safari
demonstration version download.
F. Other marketing activities as necessary to adequately
represent Heartsoft products and mutually agreed upon by both
parties.
G. Submit an outline of planned marketing activities for the year
at the beginning of each contract year. This report shall be
received by the 30th of the first full month of the contract
for each year of the contract.
H. Provide a quarterly report of marketing actitivies conducted
by K-12 MicroMedia in support of the NYC BOE/Heartsoft
contract. This report shall be received by the 20th of the
month following the end of the quarter. For example, for the
quarter ending June 30, 2001, the report will be received by
July 20, 2001.
2. Heartsoft, Inc will provide the following compensation and services to
K-12 MicroMedia in support of their marketing activities to NYC BOE:
A. Pay K-12 MicroMedia a marketing commission of % of sales
based on cash collections to Heartsoft from NYC BOE. This
commission shall be paid quarterly on the 30th of the month
following the end of the quarter. For example, commissions
for the quarter ending June 30, 2001 will be paid on
July 30, 2001. Any outstanding balance (i.e. sales where cash
has not been collected during the month) for products will be
deducted from amount due to K-12 MicroMedia prior to payment
of marketing commissions.
B. Provide K-12 MicroMedia with monthly reports for sales to the
NYC BOE and K-12 Micromedia. These reports will be provided by
the 20th of the month following the sales month. For example,
the monthly report for April 2001 will be provided by May 20,
2001.
C. Provide product literature and demo CDs as needed to support
marketing efforts in NYC BOE schools.
D. Provide training for the staff of K-12 MicroMedia on Heartsoft
product line and selling strategies.
E. Provide personnel, as available, to support K-12 MicroMedia
staff in demonstrating Heartsoft products at technology
conferences.
F. Develop joint sales and marketing efforts to close large sales
opportunities, this may include activities such as joint sales
calls and inside sales call campaigns.
G. Provide a co-branded Internet Safari demonstration version
download web page and share all leads obtained from the
co-branded web page during the term of the contract.
H. Provide creative design service and/or electronic files of
Heartsoft products, logos, etc. as needed and mutually agreed
upon for the creation of marketing materials in support of
this contract.
3. K-12 MicroMedia, as an extension of this contract, may on occasion
accept purchase orders directly from NYC BOE at the contract price and
these sales will be included in the calculation of both marketing
commissions and performance incentives, provided these purchase orders
meet the following criteria:
A. Contain orders for products from multiple publishers;
B. Contain orders for only Heartsoft products at a limited time
special promotion pricing not covered by the NYC BOE contract
or for Heartsoft products not on covered by the NYC BOE
contract.
C. Other mutually agreed upon conditions that are beneficial to
NYC BOE, K-12 MicroMedia and Heartsoft.
For these orders, K-12 MicroMedia will order the product at
their standard reseller discount. Heartsoft will drop ship the
product directly to the customer or to K-12 MicroMedia as
stated on the K-12 MicroMedia purchase order to Heartsoft.
K-12 MicroMedia will be responsible for payment of these
purchase orders under their normal reseller terms and
conditions.
4. TERM OF CONTRACT: The agreement shall be valid until July 31, 2002.
This agreement shall be eligible for automatic extension in 12 month
periods provided K-12 MicroMedia provides proof of meeting the
marketing criteria stipulated above through submission of monthly
marketing reports and sales of Heartsoft products to NYC BOE meets or
exceeds the following sales objectives: First contract period -
$ in sales. Each additional contract period the sales objective
shall be to meet or exceed % of the previous 12 month period. Should
the above stipulated criteria for automatic extension not be met, this
contract may be extended for a period of 12 months upon mutual
agreement of both parties.
5. REPRESENTATIONS: Should K-12 MicroMedia Publishing fail to meet the
marketing terms as specified in this Agreement, Heartsoft shall provide
notification in writing of the specific contract points in question and
K-12 MicroMedia shall have 60 days to come into full contract
compliance. In the event that K-12 MicroMedia does not meet the 60 day
deadline, Heartsoft may terminate the Agreement by providing
notification of contract dissolution in writing, delivered to K-12
MicroMedia via certified mail or other trackable delivery service.
6. ENTIRE AGREEMENT: This agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and there
are no representations, understanding or agreement that are not fully
expressed in this Agreement. The interpretation and enforcement of this
Agreement shall be governed by the laws of the State of Oklahoma. In
the event that any portion of this agreement shall be held by a court
or other tribunal of competent jurisdiction to be unenforceable, such
provision will be enforced to the maximum extent permissible and the
remaining portions of this Agreement shall remain in full force and
effect. Recipient may not sell, transfer, assign, sublicense or
subcontract any right or obligation hereunder without the prior written
consent of Heartsoft, Inc.
7. ARBITRATION: Any controversy or claim arising out of or relation to
this Agreement, or the breach thereof, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court of competent jurisdiction.
The prevailing Party in such arbitration shall be entitled to recover
reasonable attorneys' feed and arbitration costs, unless otherwise
decided by the arbitrators.
IN WITNESS HEREOF, the parties hereto have executed the Agreement as of the
1st day of June, 2001.
K-12 MicroMedia Publishing, Inc. Heartsoft, Inc.
By: /s/ A. G. Schweikez By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Schweikez Name: Xxxxxxx X. Xxxx
Title: President Title: Vice President, Sales
