INDEPENDENT SALES REPRESENTATIVE AGREEMENT
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THIS INDEPENDENT SALES REPRESENTATIVE AGREEMENT (the "Agreement") is dated
as of August 8, 2001 and is between INTERNATIONAL COMMERCIAL TELEVISION, INC., a
Nevada corporation ("ICTV"), and DIMENSIONAL MARKETING CONCEPTS, INC., a Florida
corporation ("DMC").
ICTV is engaged in the marketing and distribution of various consumer
products, and DMC has expertise in managing the promotion, marketing and sale
(collectively, "Promotion" and grammatical variants thereof) of consumer
products into retail channels of trade. The parties wish to set forth herein the
terms and conditions under which ICTV will engage DMC to perform certain
services in connection with the Promotion of consumer products into retail
channels of trade in the territory specified herein.
Accordingly, in consideration of the mutual promises and undertakings set
forth herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Engagement.
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(a) Services. ICTV hereby engages DMC to serve as its exclusive
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independent sales representative for all Contract Products to Retail Accounts in
the Territory (as those terms are defined in Section 1(b) hereof). Except as
otherwise expressly provided herein, the services to be performed by DMC
hereunder (collectively, the "Services") shall consist of all activities
customarily associated with Promoting goods to Retail Accounts including,
without limitation, the following:
(1) Marketing Activities. Engaging in marketing activities to
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stimulate sales of Contract Products to Retail Accounts, including, without
limitation, preparing a business plan for each Contract Product, assisting in
developing marketing strategies, sales goals, retail packaging and trade show
presentations, and establishing and administering a network of sales
representatives;
(2) Soliciting Orders. Soliciting orders for Contract Products
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from Retail Accounts;
(3) Warehousing and Fulfillment. Making arrangements satisfactory
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to ICTV for warehousing and fulfillment of all Contract Products sold to Retail
Accounts in the Territory hereunder;
(4) Back-End Assistance. Rendering such additional "back end"
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assistance as ICTV may reasonably require, including, without limitation,
customer service, order entry, EDI/ASN, warehouse administration, inventory
control, sales and financial reporting, accounts payable/receivable, customer
billing and collection and coordinating authorized returns;
(5) Insurance Requirements. Assisting ICTV to evaluate product
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liability insurance requirements with respect to each Contract Product; and
(6) Additional Services. Otherwise facilitating sales to and
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servicing the needs of Retail Accounts.
(b) Definitions.
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(1) Contract Products. For purposes of this Agreement, "Contract
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Products" shall mean those consumer products to which ICTV has rights of retail
distribution which DMC elects to market and distribute hereunder. ICTV shall not
market or distribute or license or otherwise grant to any other person or entity
the right to market or distribute any goods to Retail Accounts in the Territory
unless ICTV first offers to DMC the right to so market and distribute such goods
pursuant to the terms of this Agreement. DMC shall have a period of 30 days from
the date of its receipt of such offer to accept or reject the rights so offered.
If DMC rejects such offer or does not accept such offer for such rights within
such 30-day period, then ICTV shall be free to exercise such rights itself or
grant such rights to any third person.
(2) Retail Accounts. For purposes of this Agreement, "Retail
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Accounts" shall mean operators of traditional retail stores, price clubs and
convenience stores and wholesalers to such retail institutions. "Retail
Accounts" shall expressly exclude (i) resellers that sell via television home
shopping, the Internet, catalog, mail order, credit card syndication and (ii)
resellers in the educational market (including, without limitation, all levels
of schools, preschools and daycare).
(3) Territory. For purposes of this Agreement, the "Territory"
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shall consist of the United States and Puerto Rico.
(c) Limitations. The Services shall be limited to those expressly
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enumerated herein and such other services (and only such other services) to
which ICTV and DMC may hereafter expressly agree in writing. DMC shall not
perform any services not authorized by this Agreement without the prior written
approval of such services by ICTV.
(d) Third-Party Rights. DMC acknowledges that ICTV's rights with
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respect to any given Contract Product may be (i) derived from and subject to the
terms, conditions and limitations set forth in a third-party agreement with
respect thereto (a "Marketing Agreement") and (ii) subject to termination
concurrently with the termination of ICTV's rights in such product under such
Marketing Agreement. DMC shall have no claim against ICTV arising from any such
termination (including, without limitation, any claim based on delay, lost
profits, or loss of opportunity), all such claims having been deemed waived.
ICTV shall advise DMC of all Marketing Agreements pursuant to which ICTV derives
rights to Contract Products and shall use commercially reasonable efforts to
notify DMC as promptly as practicable of the termination of any such Marketing
Agreements.
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(e) Obligations of DMC. DMC shall use is best efforts to perform the
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Services and maximize its sales of Contract Products to Retail Accounts in the
Territory.
2. Operational Matters.
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(a) Pricing and Marketing Strategy. ICTV and DMC will consult with one
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another to mutually determine retail pricing and marketing strategy for all
Contract Products.
(b) Solicitation, Transmission and Acceptance of Orders. DMC will
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solicit orders for Contract Products from Retail Accounts in the name of ICTV,
which shall be and remain vendor of record with respect to all such orders. All
such orders shall be subject to the pricing determined under Section 2(a) hereof
and ICTV's terms and conditions of sale in effect at the time of solicitation.
Any variance from such prices, terms and conditions is subject to ICTV's advance
written approval. DMC shall transmit to ICTV all such orders promptly following
DMC's receipt thereof. All such orders shall be subject to acceptance by ICTV.
ICTV may, in its sole discretion, decline or cancel any order, in whole or in
part, without incurring any liability to DMC. All accepted orders shall be
considered to be a contract directly between the Retail Account and ICTV.
(c) Fulfillment of Accepted Orders. ICTV shall be solely responsible
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for fulfillment, invoicing and collections with respect to all orders from
Retail Accounts accepted by ICTV. DMC shall deposit all such collections into
such ICTV account(s) as ICTV may designate from time to time.
(d) Returns. DMC shall assist ICTV in coordinating returns of Contract
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Products that are defective or that ICTV otherwise authorizes to be returned.
Title and risk of loss with respect to Contract Products which are authorized to
be returned shall not transfer to ICTV until such goods are received at ICTV's
designated warehouse.
(e) Warehousing. ICTV shall be responsible for all warehousing charges
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incurred with respect to Contract Products pending shipment of such goods to
Retail Accounts. ICTV shall further be responsible for the costs of installing
such warehousing information technology systems as ICTV, in its sole discretion,
deems necessary to facilitate EDI exchange with Retail Accounts.
(f) Projections. Every four weeks during the term of this Agreement,
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DMC shall submit to ICTV a rolling projection of anticipated orders for Contract
Products from Retail Accounts over the next 90 days. Such forecasts shall be for
the sole purpose of assisting ICTV in its planning and shall not constitute an
obligation of DMC to procure orders for the quantities of Contract Products so
forecasted.
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3. Compensation.
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(a) Commission.
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(1) Generally. In consideration of the performance of the Services
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and the observance and performance of all of DMC's covenants, agreements,
representations and warranties under this Agreement, ICTV shall pay DMC a
commission on all sales of Contract Products to Retail Accounts directly
procured by DMC ("Sales to DMC Accounts"). Except as otherwise provided in
Section 3(a)(2) hereof, such commission shall be paid at the rate of 15% of
ICTV's Net Sales. For purposes of this Agreement, "Net Sales" shall mean the
aggregate proceeds actually received by ICTV from Sales to DMC Accounts, less
(i) markdowns, discounts, advertising allowances, freight allowances, returns,
refunds, rejections, repurchased goods, chargebacks and all other credits and
allowances to Retail Accounts on account of return or rejection of goods or
otherwise granted in the ordinary course of business and (ii) sales, excise and
other taxes, customer duties, tariffs and other similar charges.
(2) Exception. Notwithstanding the provisions of Section 3(a)(1)
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hereof, for all Sales to DMC Accounts as to which ICTV's Profit is less than 15%
of its Net Sales, the commission payable on such sales shall be 50% of ICTV's
Profit. For purposes of this Agreement, "ICTV's Profit" with respect to each
Contract Product sold to a Retail Account shall consist of the gross proceeds of
such sale less (i) ICTV's cost of goods, (ii) all packaging and handling charges
incurred by ICTV to prepare such goods for delivery to Retail Accounts, (iii)
royalties and fees payable to third parties with respect to sale of such goods,
(iv) all amounts deductible hereunder from the gross proceeds of such sale for
purposes of calculating Net Sales and (v) DMC's commission on such sale at the
rate set forth in Section 3(a)(1) hereof.
(3) Reserve. ICTV may withhold an amount equal to ten percent
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(10%) of all commissions payable to DMC hereunder as a reserve against amounts
which are deductible from ICTV's gross revenues for purposes of calculating Net
Sales. ICTV shall apply funds so reserved to offset overpayments of commissions
actually due to DMC hereunder. Within 60 days after the end of each calendar
quarter, ICTV shall render to DMC an interim accounting with respect to amounts
so reserved during such calendar quarter and shall remit to DMC all reserved
funds not applied against overpayments of commissions during such period. As
promptly as practicable following the termination of this Agreement, ICTV shall
render to DMC a final accounting with respect to amounts so reserved and shall
at that time remit to DMC any remaining amounts so reserved and not applied
against overpayments of commissions; provided, however, that all orders for
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Contract Products have been fulfilled at least 60 days prior to such accounting.
(b) Remittance and Reporting. ICTV shall remit all commissions payable
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hereunder to DMC within 14 days following ICTV's collection of the proceeds of
Sales to DMC Accounts. Each such payment shall be accompanied by a written
statement setting forth ICTV's calculations determining such commissions.
(c) Records and Inspection. Each party shall keep complete and accurate
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records of all sales which are subject to payment of commissions hereunder and
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all other activities for which it is responsible under this Agreement. Each
party and its duly authorized representatives shall have the right, once per
calendar year during the term of this Agreement and once during the subsequent
year, to audit such records as are maintained by the other party to verify the
commissions and other costs payable hereunder and otherwise assure compliance
herewith. Each such audit shall require at least ten business days prior written
notice and shall take place during the hours of 9:00 a.m. to 5:00 p.m., Monday
through Friday, at the offices of the party whose records are being audited.
(d) No Other Compensation. ICTV shall have no obligation to compensate
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DMC except to the extent expressly set forth in this Agreement. The commissions
payable by ICTV hereunder shall be inclusive of all fees, commissions and other
amounts which may be payable to or for the benefit of all agents,
representatives and other third parties acting for or on behalf of DMC.
4. Equity Participation. In consideration of the Services to be performed
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hereunder, ICTV shall issue options to Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxx (DMC's
principals) to purchase a total of 100,000 shares of ICTV's common stock in the
aggregate at the price of $0.50 per share. Such options shall be exercisable
only as to all such shares and only for a period of three days following the
execution of this Agreement. Upon the exercise of such options and payment of
such amount, ICTV shall appoint Messrs. Basenese and Xxxxxx as directors of ICTV
and shall issue to each of them an option to purchase 40,000 additional shares
of ICTV's common stock at the price of $2.00 per share. All of the foregoing
options shall be issued pursuant to separate stock option agreements to be made
under and subject to the terms of ICTV's corporate stock option plan.
5. Trademark License.
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(a) Grant. Solely to the extent necessary in order to facilitate DMC's
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performance of the Services as contemplated hereby, ICTV grants DMC a limited
license (or sublicense, as the case may be) to use all trademarks associated
with the Contract Products and their packaging which ICTV owns or to which it
otherwise has rights of use (the "Marks").
(b) Parties' Rights in Marks. As between DMC and ICTV, all right, title
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and interest in the Marks shall belong exclusively to ICTV and all uses of each
Xxxx shall inure to the benefit of ICTV (or its designee or licensor, as the
case may be) for all purposes. DMC shall take no actions inconsistent with the
rights of ICTV, its designees and licensors in the Marks. Without limiting the
preceding sentence, DMC shall not file any application for registration of any
of the Marks, but shall fully cooperate with ICTV (or its designee or licensor,
as the case may be) in maintaining and defending the validity and ownership of,
and prosecuting any applications to register each such Xxxx. If DMC becomes
aware of any unlicensed or unauthorized use by any third party of any Xxxx, DMC
shall promptly so notify ICTV in writing. ICTV may take, at its sole discretion
and expense, such action regarding such third party use as ICTV, in its sole
discretion, deems appropriate, including, without limitation, initiating
litigation. DMC shall cooperate with ICTV in every reasonable way (and at ICTV's
expense) in taking such actions as ICTV deems necessary to protect its rights
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(and those of its designees and licensors) in the Marks. ICTV shall retain full
control over all such actions, including, without limitation, the settlement
thereof. In consideration of DMC's performance of the Services, ICTV shall pay
DMC 15% of any and all funds actually recovered in connection therewith during
the term of this Agreement.
(c) Quality Control. ICTV shall control the quality of all goods
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Promoted under the Marks through control of the supply of such goods as
contemplated by this Agreement. All Contract Products shall be Promoted without
modification in any way by DMC. ICTV shall retain the right to inspect and
approve, in its sole discretion, all advertising and promotional materials
utilizing the Marks, and DMC shall provide ICTV with its initial advertising and
promotional materials prior to their first use for review and approval. ICTV
shall have five business days from its receipt of such materials to review such
materials. If ICTV does not provide comments or fails to respond within such
five business day period, ICTV shall be deemed to have approved such materials.
(d) Third-Party Rights. DMC acknowledges that (i) ICTV's rights in any
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given Xxxx xxx be derived from and subject to all of the terms, conditions and
limitations set forth in the Marketing Agreement or other instrument(s) by which
ICTV acquired rights therein and (ii) DMC's rights hereunder as to each such
Xxxx are subject to termination concurrently with the termination of ICTV's
rights in such Xxxx. DMC shall have no claim against ICTV arising from any such
termination (including, without limitation, any claim based on delay, lost
profits, or loss of opportunity), all such claims having been deemed waived.
ICTV shall advise DMC of all Marketing Agreements pursuant to which ICTV derives
rights to Marks and shall use commercially reasonable efforts to notify DMC as
promptly as practicable of the termination of any such Marketing Agreements.
6. Competing Goods.
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(a) Restrictions on Competing Goods. During the term of this Agreement
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and for three months after its termination or expiration, DMC may not advertise,
promote, market, sell or otherwise distribute in the Territory any product which
is substantially similar to any Contract Product.
(b) Enforceability. If any of the restrictions set forth in Section
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6(a) hereof is determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too long a period of time or over
too large a geographical area or by reason of its being too extensive in any
other respect, it shall be interpreted to extend only over the longest period of
time for which it may be enforceable, and/or over the largest geographical area
as to which it may be enforceable and/or to the maximum extent in all other
aspects as to which it may be enforceable, all as determined by such court in
such action. The duration of the foregoing restriction shall be tolled during
any period of violation thereof.
7. Right of First Refusal. DMC shall advise ICTV of all consumer products to
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which it obtains rights of retail distribution or of which it otherwise becomes
apprised to which Direct Response Marketing rights are or may be available. For
purposes of this Agreement, "Direct Response Marketing" shall mean Promotion of
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consumer goods via direct response means and media, including, without
limitation, television infomercials and spots, radio spots, direct mail and
other print advertisements, package inserts, credit card syndication and online
solicitations. DMC shall not, directly or indirectly, either by itself or in
participation with any other person or entity, market or distribute or license
or otherwise grant to any other person or entity the right to market or
distribute any goods via Direct Response Marketing unless DMC first offers to
ICTV the right to so market and distribute such goods in a writing setting forth
the terms on which DMC is willing to grant such rights. ICTV shall have a period
of 30 days from the date of its receipt of such offer and sample or description
to accept or reject the rights so offered (the "Right of First Refusal"). If
ICTV rejects such offer or does not accept such offer for such rights within
such 30-day period, then DMC shall be free to exercise such rights itself or
grant such rights to any third person on terms no more favorable than those
offered to ICTV; provided, however, that if, within 90 days after ICTV's
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rejection (or deemed rejection) of such offer, DMC neither exercises such rights
itself nor enters into a binding contract with any third party for the exercise
of such rights, then such rights shall once again be subject to the Right of
First Refusal.
8. Term and Termination.
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(a) Term. The term of this Agreement shall commence on the date hereof
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and, unless sooner terminated in accordance with the provisions of Section 8(b)
or (c) hereof, shall run for an initial period ending December 31, 2002 (the
"Initial Term"). Upon the expiration of the Initial period, this Agreement shall
automatically and continually renew for additional and successive 36-month
periods, in perpetuity (each, a "Renewal Term"), unless either party notifies
the other, at least 30 days before the end of the then current Renewal Term, of
its intent to terminate this Agreement at the end of such Renewal Term.
(b) Termination for Convenience. Either party may terminate this
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Agreement without cause at any time during the period between September 1, 2002
and December 31, 2002 upon not less than 60 days prior notice to the other. In
such case, neither party shall have any claim as against the other arising from
such termination (including, without limitation, any claim based on delay, lost
profits, or loss of opportunity), all such claims having been deemed waived.
(c) Termination for Material Breach. Upon the material breach by either
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party of any of its representations, warranties, covenants or agreements
contained in this Agreement, the other party may terminate this Agreement upon
30 days written notice setting forth the particulars of such breach. Upon the
expiration of such notice period (and any extension thereof to which the parties
may mutually agree), this Agreement shall terminate without the need for further
action by either party; provided, however, that if the breach upon which such
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notice of termination is based shall have been fully cured to the reasonable
satisfaction of the nonbreaching party within such 30-day period, then such
notice of termination shall be deemed rescinded, and this Agreement shall be
deemed reinstated and in full force and effect. Such right of termination shall
be in addition to such other rights and remedies as the terminating party may
have under applicable law.
(d) Rights and Duties Upon Termination. ICTV shall remain obligated to
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pay commissions to DMC with respect to all Sales to DMC Accounts made during the
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term of, and for a period of 60 days following the date of termination of, this
Agreement. The parties shall have no further rights or obligations hereunder
upon termination of this Agreement except pursuant to those provisions hereof
which expressly survive the termination of this Agreement.
9. Representations and Warranties. Each party represents and warrants to the
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other as follows:
(a) Power and Authorization. It has all requisite power and authority
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(corporate and otherwise) to enter into this Agreement, and has duly authorized
by all necessary action the execution and delivery hereof by the officer or
individual whose name is signed on its behalf below.
(b) No Conflict. Its execution and delivery of this Agreement and the
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performance of its obligations hereunder, do not and will not conflict with or
result in a breach of or a default under its organizational instruments or any
other agreement, instrument, order, law or regulation applicable to it or by
which it may be bound.
(c) Enforceability. This Agreement has been duly and validly executed
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and delivered by it and constitutes its valid and legally binding obligation,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency or other laws of general application relating to or
affecting the enforcement of creditors' rights and except as enforcement is
subject to general equitable principles.
10. Indemnification.
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(a) Generally. Each party shall defend, indemnify and hold harmless the
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other, its affiliates and their respective officers, directors, shareholders,
employees, licensees, agents, successors and assigns from and against any and
all Liabilities (as defined herein) arising in connection with or resulting from
the indemnifying party's breach of any of its representations, warranties,
covenants, obligations, agreements or duties under this Agreement or negligence,
recklessness or intentional misconduct.
(b) Exceptions. Notwithstanding anything to the contrary contained
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herein, neither party shall have any obligation to indemnify, defend or hold
harmless hereunder with respect to any Liabilities arising out of or resulting
from the breach by the other party of any of its representations, warranties,
covenants, obligations, agreements or duties under this Agreement or any
negligence, recklessness or intentional misconduct by the other party.
(c) "Liabilities" Defined. For purposes of this Agreement,
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"Liabilities" shall mean any and all liabilities to third parties and expenses
incurred in connection therewith, including, without limitation, claims,
adversary proceedings (whether before a court, administrative agency or any
other tribunal), damages (whether compensatory, multiple, exemplary or
punitive), judgments, awards, fines, penalties, settlements, investigations,
costs, and attorneys fees and disbursements.
(d) Procedure. Promptly after learning of the occurrence of any event
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which may give rise to its rights under the provisions of this section, each
indemnitee hereunder shall give written notice of such matter to the indemnitor.
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The indemnitee shall cooperate with the indemnitor in the negotiation,
compromise and defense of any such matter. The indemnitor shall be in charge of
and control such negotiations, compromise and defense and shall have the right
to select counsel with respect thereto, provided that the indemnitor shall
promptly notify the indemnitee of all developments in the matter. Except as
otherwise expressly provided below, neither the indemnitee nor the indemnitor
may compromise or settle any such matter without the prior consent of the other,
and neither shall be bound by any such compromise or settlement absent its prior
consent (which shall not be unreasonably withheld or delayed). The preceding
sentence shall not apply in any case in which the indemnitor fails or refuses to
assume the defense of any matter as to which its indemnity obligations applies
(whether or not litigation has formally been instituted). In any such case, the
indemnitor shall be responsible for any compromise or settlement thereof reached
by the indemnitee and all Liabilities attendant thereto. Without the prior
written consent of the affected party, no such compromise settlement shall
implicate rights, obligations or property beyond the subject matter of this
Agreement.
11. Confidentiality.
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(a) Limitations on Disclosure. DMC shall hold all Confidential
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Information disclosed to or otherwise obtained by it in the strictest confidence
and shall protect all such Confidential Information with at least the same
degree of care that it exercises with respect to its own proprietary information
(which, in any event, shall not be less than a reasonable degree of care under
the circumstances). DMC shall take all reasonable steps to prevent (i)
unauthorized disclosure and duplication of Confidential Information, (ii) its
officers, employees and agents from violating this Agreement, and (iii)
competitors from gaining access to Confidential Information. DMC agrees (i) not
to disclose Confidential Information to any third party without first obtaining
the express written permission of ICTV and (ii) to limit disclosure of
Confidential Information to its officers, employees or agents on a need-to-know
basis for purposes of fulfilling its obligations under and achieving the
purposes of this Agreement, provided that such persons are bound by obligations
of confidentiality at least as restrictive as those set forth in this Agreement.
(b) "Confidential Information" Defined. For purposes of this Agreement,
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"Confidential Information" shall mean all nonpublic proprietary information of
ICTV, whether or not written or otherwise fixed in any form or medium,
regardless of the media on which contained and whether or not patentable or
copyrightable, which is designated as (or which, by its nature, is inherently)
confidential, including, without limitation, trade secrets, technical
specifications, customer or client lists, business information, marketing
programs, plans and strategies, financial information, memoranda, work papers,
notes, reports and sales information.
(c) Exceptions. Notwithstanding Section 11(a) hereof, DMC shall have no
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obligations with respect to any information which (i) is or becomes within the
public domain through no act of DMC in breach of this Agreement, (ii) was
lawfully in DMC's possession without any restriction on disclosure prior to its
disclosure hereunder, (iii) is lawfully received from another source subsequent
to the date of this Agreement without any restriction on disclosure, (iv) is
deemed in writing by ICTV no longer to be Confidential Information, or (v) is
required to be disclosed by order of any court of competent jurisdiction or
other governmental authority (provided in such latter case, however, that DMC
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shall timely inform ICTV of all such legal or governmental proceedings so that
ICTV may attempt by appropriate legal means to limit such disclosure, and DMC
shall further use its best efforts to limit the disclosure and maintain
confidentiality to the maximum extent possible).
(d) Effect of Termination. Promptly after the termination of this
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Agreement, DMC shall return to ICTV all Confidential Information in its
possession and provide a written verification of such return. DMC's attorney may
retain a copy of such information in a sealed file. DMC's confidentiality
obligations with respect to Confidential Information shall survive for a period
of five years following the termination of this Agreement.
12. Injunction. The parties acknowledge that any breach of the obligations
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under Section 6 or 11 hereof will result in immediate irreparable and continuing
injury to ICTV for which there is no adequate remedy at law. Accordingly, in the
event of any such breach (or threatened breach), ICTV shall be entitled to seek
from any court of competent jurisdiction, preliminary and permanent injunctive
relief, without bond, with respect to such breach. DMC shall not oppose such
relief on the grounds that there is an adequate remedy at law, and such right
shall be cumulative and in addition to any other remedies at law or in equity
(including monetary damages) which ICTV may have upon any such breach.
13. Taxes. Each party shall be responsible for its own income and other
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taxes required under applicable laws arising from activities or proceeds
pursuant to this Agreement.
14. Relationship of the Parties.
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(a) Generally. The relationship created by this Agreement shall be that
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of independent contractor, and neither DMC nor any of its affiliates or their
respective officers, agents or employees shall be considered a partner,
employee, franchisee, agent or other legal representative of ICTV or any of its
affiliated companies for any purpose whatsoever.
(b) Power to Bind. Without ICTV's prior written consent, DMC shall not
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have, nor shall it hold itself out at as having, any right, power or authority
to make any unauthorized representations on behalf of ICTV or create any
contract or obligation, either express or implied, on behalf of, in the name of,
or binding upon ICTV. By way of illustration and not limitation, DMC shall not
use the corporate name, logo or other identifying information of ICTV or any of
its affiliated companies on its business cards, stationery or other printed
materials, except as expressly consented to by ICTV (such consent not to be
unreasonably withheld or delayed).
(c) Exclusive Direction and Control. DMC and all its officers, agents
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and employees shall at all times be under DMC's exclusive direction and control.
ICTV shall have no right to control the specific manner, means, or method by
which DMC and its employees and subcontractors exercise the Retail Marketing
Rights.
(d) No Benefits. Amounts payable by ICTV hereunder shall not be
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considered salary for pension and incentive compensation purposes. Furthermore,
no DMC officers, employees or agents shall be entitled to any fringe or
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supplemental benefits of regular employees of ICTV or any of its affiliated
companies. DMC shall bear all responsibility and liability for the payment of
all federal, state and local income taxes due on money received from ICTV
hereunder and filing all appropriate tax returns and other forms with respect
thereto. Moreover, DMC shall be solely responsible for (i) payment of all
compensation to its officers, employees and agents, (ii) all health and/or
disability insurance, retirement benefits, and other welfare or pension benefits
to which such personnel may be entitled and (iii) all employment taxes and
withholding with respect to such personnel.
15. Force Majeure. Neither DMC nor ICTV shall be responsible for any delay
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or failure to perform any part of this Agreement to the extent that such delay
or failure is caused by fire, flood, explosion, war, strike, labor unrest, riot,
embargo, act of governmental, civil or military authority, accident, inability
to obtain raw materials or supplies of Contract Products, acts or omissions of
carriers, act of God, or other such contingencies beyond its control. Notice
with full details of any such event shall be given to the other party as
promptly as practicable after its occurrence. The affected party shall use due
diligence, where practicable, to minimize the effects of or end any such event
so as to facilitate the resumption of full performance hereunder.
16. Miscellaneous.
(a) Notices. All notices, requests, instructions, consents and other
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communications to be given pursuant to this Agreement shall be in writing and
shall be delivered either in person or by U.S. Postal Service or reliable
overnight courier service. Notices may also be transmitted by facsimile or
electronic mail, provided that proper arrangements are made in advance to
facilitate such communications and provide for their security and verification.
Notices shall be sent to the following addresses:
If to ICTV: If to DMC:
------------ -----------
International Commercial Television, Dimensional Marketing Concepts,
Inc. Inc.
000 X.X. 0xx Xxxxxx, Xxxxx 000 0000 X.X. Xxxxxxx Xxxxxxx #00
Xxxxxx Xxxxx, XX 00000-0000 Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxx Xxxxxxxx
FAX: (000) 000-0000 FAX: _________________________
Each party may by written notice given to the other(s) in accordance with this
Agreement change the address to which notices to such party are to be delivered.
Notices shall be deemed received (i) on the same day if delivered in person or
by same-day courier, facsimile or electronic mail, (ii) on the next business day
if delivered by overnight mail or courier, or (iii) on the date indicated on the
return receipt, or if there is no such receipt, on the seventh business day if
delivered by postal service, postage prepaid.
(b) Entire Agreement. This Agreement contains the entire understanding
-----------------
of the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether written or oral, between them with
respect to the subject matter hereof. Each party has executed this Agreement
11
without reliance upon any promise, representation or warranty other than those
expressly set forth herein.
(c) Amendment. No amendment of this Agreement shall be effective unless
---------
embodied in a written instrument executed by all of the parties.
(d) Waiver of Breach. The failure of any party at any time to enforce
------------------
any of the provisions of this Agreement shall not be deemed or construed to be a
waiver of any such provision, nor in any way to affect the validity of this
Agreement or any provisions hereof or the right of any party hereto to
thereafter enforce each and every provision of this Agreement. No waiver of any
breach of any of the provisions of this Agreement shall be effective unless set
forth in a written instrument executed by the party against whom or which
enforcement of such waiver is sought; and no waiver of any such breach shall be
construed or deemed to be a waiver of any other or subsequent breach.
(e) Assignment. This Agreement involves the performance of specialized
----------
services. Accordingly, DMC may not assign or otherwise transfer any of its
rights and obligations hereunder without the prior written consent of ICTV, and
any such attempted assignment without prior written consent shall be void and
ineffective. This Agreement shall be binding upon and inure to the benefit of
the parties, their successors and permitted assigns.
(f) Governing Law; Jurisdiction. This Agreement shall be governed by
-----------------------------
and construed in accordance with the internal substantive and procedural laws of
the State of Florida without regard to conflict of laws principles. The sole and
exclusive venue for all disputes arising out of or relating in any way to this
Agreement shall be the federal and state courts of Florida. The parties consent
to the personal jurisdiction and venue of such courts and further consent that
any process, notice of motion or other application to either such court or a
judge thereof may be served outside the State of Florida by registered or
certified mail or by personal service, provided that a reasonable time for
appearance is allowed.
(g) Severability. All of the provisions of this Agreement are intended
------------
to be distinct and severable. If any provision of this Agreement is or is
declared to be invalid or unenforceable in any jurisdiction, it shall be
ineffective in such jurisdiction only to the extent of such invalidity or
unenforceability. Such invalidity or unenforceability shall not affect either
the balance of such provision, to the extent it is not invalid or unenforceable,
or the remaining provisions hereof, nor render invalid or unenforceable such
provision in any other jurisdiction.
(h) Survival. The following provisions shall survive the termination of
--------
this Agreement: Sections 3, 6, 8(d), 10, 11, 12, 13 and 16.
(i) Interpretation and Construction. This Agreement has been fully and
--------------------------------
freely negotiated by the parties hereto, shall be considered as having been
drafted jointly by the parties hereto, and shall be interpreted and construed as
if so drafted, without construction in favor of or against any party on account
of its participation in the drafting hereof.
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(j) Headings. The headings of sections and subsections have been
--------
included for convenience only and shall not be considered in interpreting this
Agreement.
(k) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same Agreement. This Agreement may be
executed and delivered via electronic facsimile transmission with the same force
and effect as if it were executed and delivered by the parties simultaneously in
the presence of one another.
(l) Further Actions. Each party shall, without further consideration,
----------------
execute and deliver such additional documents and instruments and perform all
such other and further actions as may be necessary or reasonably requested in
order to carry out the purposes and intents of this Agreement.
(m) U.S. Dollars. Except as otherwise expressly set forth herein, all
-------------
monetary amounts stated in this Agreement shall be deemed to be in United States
Dollars.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have executed this Agreement as of the date first above written
INTERNATIONAL COMMERCIAL DIMENSIONAL MARKETING
TELEVISION, INC. CONCEPTS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ------------------------------
Name: Xxxxxx Xxxxxx Name Xxxxx X. Xxxxxxxx
------------------------------- -----------------------------
Title: Chief Executive Officer Title: CEO
------------------------------ --------------------------
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