CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
EXHIBIT 10.33
Contract No. _______
Page 1 of 15
DIRECT MARKETING AGREEMENT
WITNESSETH:
That in consideration of the agreements expressed herein, Cellular Telephone
Company d/b/a AT&T Wireless Services, Northeast Region, ("AWS") having an office
at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 and Xxxxxxx Xxxxxxxx
Xxxxxxxx Inc., a corporation of the Commonwealth of Massachusetts ("Agency"),
having an office at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 02199, do hereby agree as follows:
ARTICLE 1 - AGENCY SERVICES
The Agency shall act as AWS's direct marketing agency in the planning,
preparing, and placing of such direct communication programs (i.e. business to
business retention, consumer acquisition, marketing consulting, database
consulting and special projects) and marketing, as may be requested by AWS. The
Agency shall perform other services as AWS may request, as outlined in Article
30, subject to mutual written agreement of the parties.
Agency shall devote its best efforts, on behalf of AWS to further AWS's
interests and shall reasonably endeavor in every proper way to make AWS's direct
marketing and associated efforts, for which the Agency is herein responsible,
successful. To accomplish the foregoing, Agency specifically agrees that its
services shall include but not be limited to the following:
X. Xxxxxxxxx and maintaining, with AWS's consent executive strategic input
and review, an account management group, creative, systems and
fulfillment, research and analysis, teleservices marketing, partnership
marketing, production, media and traffic teams necessary to service the
AWS account;
B. Provide direct marketing services, including the creation, production
and placement, insertion or distribution of direct mail and other direct
communication programs;
C. Attending meetings, as requested by AWS, with AWS's staff and periodic
meetings with AWS's top management;
D. Familiarizing itself with the business of AWS, its products and
services, and the industry in which AWS operates; and analyzing the
present and potential direct marketing opportunities for such products
and services so as to provide AWS with direct marketing counsel,
including specific direct marketing objectives, strategies and plans for
reaching AWS's business objectives;
E. Preparing layouts, copy, artwork, scripts and storyboards and furnishing
other elements and materials to be used in finished advertisements for
all media and promotions to be used by AWS;
F. If requested, advising AWS of the availability of all broadcast,
publication and out-of-home media which can appropriately be used to
advertise AWS products and services; and developing media plans suitable
for AWS;
G. Supervising the production of all finished direct marketing material;
Contract No.________
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X. Xxxxxxxxxxx, arranging and contracting for any special talent required,
with AWS's approval, and for all photography, models, special effects,
layout, artwork and for all printing for use in the direct marketing
promotions program; and making appropriate arrangements for tax
withholdings from talent;
I. Analyzing direct marketing, marketing and consumer research to aid AWS
in developing advertising strategy and developing and evaluating AWS's
direct marketing and media;
J. Conducting and analyzing competitive direct marketing tracking.
The above services shall be performed to the satisfaction of AWS, shall be
performed in accordance with the highest professional standards and shall be in
accordance with such requirements or restrictions as may be lawfully imposed by
governmental authority. Services not completed to the reasonable satisfaction of
AWS shall be reperformed at no cost to AWS.
ARTICLE 2 - APPROVALS BEFORE COMMITMENT
No commitment of any kind shall be made by the Agency on behalf of AWS unless
specifically authorized in writing by AWS, except as provided in Article 3
(Estimates).
The Agency shall submit concepts, scripts, print copy and other materials as
early as possible to AWS for internal review and required legal and technical
approval.
ARTICLE 3 - ESTIMATES
The Agency shall furnish to AWS, in writing and in advance, labor fee and a cost
estimate of all expenditures in connection with all services and projects
recommended by Agency or requested by AWS. Prior to undertaking such projects or
committing AWS's funds, Agency shall obtain written authorization from AWS.
Agency shall furnish revisions of these estimates when changes in costs are
anticipated in excess of ten percent (10%), plus or minus. Each estimate as
approved by AWS shall be executed by both parties. Approved estimates shall
constitute the only authorization for the Agency to take any action, make any
commitments or expend any money. In those situations where time or circumstances
will not permit specific prior written authorization, commitments to exceed
$10,000.00 may be made with oral approval, provided such approval shall be
confirmed by an approved written estimate no later than ten (10) working days
thereafter.
ARTICLE 4 - DISCOUNTS
Agency shall obtain all prompt payment or other similar discounts available to
it from media and other suppliers from which it makes purchases in the
performance of the services hereunder. When Agency receives a cash discount,
rebate, frequency discount, volume discount, promotional consideration, or other
similar credit from such media or other suppliers, AWS shall receive full
allowance for each such amount, provided Agency, after timely notification,
receives payment from AWS within the applicable discount period.
ARTICLE 5 - ANNUAL REVIEW
An annual review shall take place during the first quarter (January - March) of
each calendar year for the review of the previous year's performance, to be
attended by appropriate AWS management representatives and by Agency management
and senior members of the AWS agency group. The purpose of this review will be
to determine the appropriate Agency bonus based on previous year's business
results. There will also be a mid-year review that addresses the quality of
Agency
Contract No.________
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services and account management. AWS and the Agency will mutually agree on
any corrective actions needed.
ARTICLE 6. DEFINITIONS
A. "Gross Revenue" as used herein shall mean the total amount of
compensation, exclusive of pass-through costs, the Agency receives from
AWS for direct marketing services performed after reconciliation and any
rebates or supplementary fees are paid.
B. "Annual Salary" as used herein shall mean annual base salary, excluding
bonuses. It does not include employer paid FICA, insurance and medical
benefits or payments into retirement plans.
C. "Direct Salaries" as used herein shall mean the [***] of [***] (including
[***]) in [***], [***] (including [***] and [***]), [***], [***]
(including [***]) and [***], [***] and [***], [***], [***] and [***] on
the [***] which are [***] to the [***].
1. [***] for an individual who works on the AWS account is to be computed
as follows:
[***] multiplied by the [***] of [***] on the [***] divided by the
[***] of [***] on any [***].
[***] on Agency business means [***] on any [***] and on [***] and
other [***]. It does not include [***], [***] or [***].
2. At AWS's option, such option to be obtained by the Agency in writing
from AWS, AWS may elect to "buy-out" designated individuals. For those
individuals bought out by AWS, AWS shall be responsible for that
person's total annual base salary, excluding bonuses.
D. "Profit Before Taxes" as used herein shall mean [***] minus [***], where
[***] equals [***] X [***].
ARTICLE 7 - AGENCY COMPENSATION
A. Agency compensation for the calendar year shall be computed as follows:
1. During the last quarter of the previous calendar year, AWS and the
Agency shall meet to determine:
a. The account staffing (including all functions as defined in Article
6, Paragraph C) for the AWS account for the next calendar year.
b. The aggregate Direct Salaries, as defined herein, of the agreed
upon account staff.
2. The fee for the calendar year is then [***] X [***] X [***].
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Contract No.________
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3. For 1997 the yearly fee is estimated at [***]. Any increase or
decrease in the estimated fee will require AWS approval. For each
subsequent year, the yearly fee shall be mutually agreed upon by the
parties in writing and attached as an amendment hereto.
4. For 1997 the Agency's average rates range between [***] and [***]
per hour for marketing communications and planning. There will be
additional projects that will fall outside of this range that involve
operational enablement work beyond marketing communications (i.e.
database support, customer care assessments, etc.).
B. [***] (expressed as a [***] of [***]) as herein defined shall be based on
[***] of [***] for the [***] based on [***] in [***] to [***] its [***].
The specific criteria for evaluation shall be mutually agreed upon by the
parties.
Based on the Agency's performance in assisting AWS to meet its stated
goals, the Agency shall be allowed a bonus based on an agreed upon formula
attached hereto as Schedule I.
C. AWS shall pay the Agency on dates to be mutually agreed upon by the
parties.
D. If for any reason Agency anticipates exceptional increases in Direct
Salaries during any quarter of the year, a meeting between Agency and AWS
shall be called by the Agency to discuss what action should be taken while
still providing AWS with needed services.
E. If for any reason AWS expects the direct marketing budget to decline or
increase significantly above or below the anticipated budget for the year,
AWS will notify Agency of this change as soon as possible.
F. AWS agrees to reimburse the Agency directly for reasonable direct client
service expenses (i.e. out of pocket expenses of Agency related to the AWS
account), including travel and living expenses authorized by AWS and
incurred in connection with this Agreement. Reimbursement for travel and
living expenses shall be in accordance with the following guidelines:
1. Transportation
a. Airline Tickets - Agency will be reimbursed for air fare that has
been purchased at coach fare for domestic travel (business class is
allowed for international flights over six (6) hours in duration).
Agency employees may not request specific flights/carriers or
arrange/alter travel plans to obtain airline promotional benefits.
Agency employees traveling under first class status will be
responsible for the expense difference incurred. The ticket stub
must be presented and relate directly to the AWS assignment. Agency
employees must account for all business related tickets whether
used, partially used, or unused. Unused tickets should be promptly
returned to the licensing travel agency for credit. Reimbursement
will not be made for the purchase of travel insurance.
b. Reasonable taxi, bus, rail or car rental expenses will be
reimbursed along with associated receipts from tolls, tips, and
parking fees will be reimbursed by AWS. For groups traveling to the
same destination, special group fares should be utilized when
available. Reimbursement for car rental expenses will be made upon
presentation of a car rental agreement/receipt. Car rentals must be
contracted at the lowest available rate and in the
compact/subcompact category
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Contract No.________
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where possible, unless special requirements dictate otherwise, in which
cases AWS prior approval is required. For more than two people, a mid-
size rental is acceptable, however, names of the people must be indicated
on the car rental receipt. Taxis, shuttles and other available forms of
transportation should be used where it is more practical or less
expensive.
AWS will not reimburse car rental refueling charges.
Cab fares for "late nights" (after 8 PM) are billable.
c. A mileage allowance, as approved yearly by the IRS, will be reimbursed to
Agency employees who use their own personal automobiles for services
provided on behalf of AWS. Allowable mileage is determined by deducting
the normal commuting mileage.
When traveling, use public transportation as a first choice, personal car as
a second choice, and car rental as the last choice.
2. Lodging - Business class hotels should be utilized by Agency employees unless
another kind of hotel better meets the Agency employees needs at a lower
rate. Agency shall only invoice hotel expenses that are directly related to
the work performed under this Agreement. Expenses incurred at hotels for AWS
business related services (fax, typing, photocopying) are reimbursable. If
accommodations are not needed, it is the responsibility of the Agency
employee to ensure that the hotel is notified. "No show" bills will not be
reimbursed.
3. Meals and Entertainment - Reasonable expenses for business meals and/or
entertainment are reimbursable it the activities are directly related to AWS
related services. Business entertainment must be directly related and
conducive to the transaction of AWS related business and may precede or
follow the conducting of AWS business related activities or discussion. The
senior AWS representative must approve all such business entertainment in
writing and in advance.
Receipts for meal expenditures should be submitted for meal reimbursement.
However, per diem meal allowances may be charged for meals, with no
requirement for submitting receipts. The per diem meal allowances (including
gratuities) are as follows:
Breakfast $ 5.00
Lunch $ 7.00
Dinner $25.00
Daily Total $37.00
Normal reasonable and necessary gratuities up to 20% are reimbursable to the
Agency employee. This would include, but is not limited to, tips for Airport
Sky Caps, Hotel Bellboys, etc. Tips for meals should be listed individually
for reimbursement.
Overtime meals are not billable.
Contract No.________
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4. Business Calls - Business calls and faxes made on AWS's behalf while
staying overnight are billable. Agency employees are encouraged to use a
calling card whenever possible. Calls must list reason and person called
and be on the AT&T Network. Personal calls are not billable.
5. Personal Expenses - AWS will not reimburse personal expenses of Agency
employees. If expenses of a personal nature (i.e., hotel/ship purchases,
alcoholic beverages, telephone and long-distance charges, in-room movies,
sundry items, etc.) are charged against the room, the amount will be
deducted from the invoice presented to AWS. Personal expenses for
laundry/valets, tips, etc. will be reimbursed where reasonable; up to a
maximum of $10.00 per day.
6. Magazines/Newspapers/Books are not billable unless specifically requested,
in writing, by AWS.
7. Services provided by Agency employees - For services requested by AWS, the
Agency shall provide, as a maximum, the following number of people:
Maximum Number of People
a. Location Shoots 3
b. Press Runs 1
c. Strategy Meetings *
d. Review Meetings *
e. Research Meetings (Focus Groups) *
* Agency shall obtain prior approval from AWS regarding the number of
people to attend.
The Agency shall submit copies of all hotel bills and other reimbursable
expenses along with the associated charge receipt(s). Expenses shall be billed
at cost and invoices for all reimbursable expenses shall list the date(s),
company, person(s) visited and business purpose for the expense.
ARTICLE 8 - DURATION
The term of this Agreement shall begin on January 1, 1997 and shall continue
until terminated by either party for their convenience by giving ninety (90)
days written notice or as otherwise provided herein.
After expiration of the period of notice, no rights or liabilities shall arise
out of this relationship, regardless of any plans which may have been made for
future direct marketing promotions, except that: (1) if AWS terminates, any non-
cancelable contracts made on AWS's authorization (or any uncompleted work
previously approved by AWS either specifically or as part of a plan, and still
existing at the expiration of the period of notice), which contracts were not or
could not be assigned by the Agency to AWS or AWS's assignee, shall be carried
to completion by the Agency and paid for by AWS; and (2) if Agency terminates,
it shall be similarly responsible for any non-cancelable contracts unless AWS
chooses to assume such contracts. Upon termination of this Agreement, the Agency
shall transfer, assign, and make available to AWS, all property and materials in
the Agency's possession or control belonging to and paid for by AWS, and all
information regarding AWS's direct marketing. The Agency also agrees to give all
reasonable cooperation towards transferring, with the approval of third parties
in interest, all assignable reservations, contracts and agreements with direct
marketing media, or others, for advertising
Contract No.________
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space, broadcast time or materials yet to be used and all rights and claims
thereto and therein, upon being duly released from the obligation thereof.
Upon termination, unused direct marketing/promotional plans and ideas
prepared by the Agency for AWS prior to the date of termination shall remain
AWS's property.
Except as otherwise specifically set forth, all the rights and liabilities of
the parties arising out of this Agreement shall cease on the date of
termination.
ARTICLE 9. BILLING AND PAYMENT
A. Agency's bills for space in publications, outdoor and carcard
advertising, and radio and TV time and talent shall be rendered to AWS in
sufficient time to afford AWS a reasonable opportunity to remit funds to
enable Agency to pay charges incurred for AWS's account on their due
dates, and AWS agrees to pay such bills within the time herein specified
for payment. Agency's bills for other items will be rendered to AWS from
time to time; unless otherwise specified, AWS shall pay Agency 100% of
all estimated Agency fee prior to the commencement of each project. AWS
shall pay 70% of all reimbursable expenses in advance of project work and
the remaining 30% of reimbursable expenses shall be invoiced upon
completion of the particular project. Such bills will be due and payable
within thirty (30) days from date thereof. Agency shall submit all media
and other invoices in time for AWS to obtain customary cash discounts.
All bills submitted to AWS by Agency shall be net of all commissions
and/or markups.
On a quarterly basis and again within ninety (90) days after the close of
each project, Agency will prepare for review by AWS a fee and pass-
through reconciliation for each project with appropriate credit/payment
adjustments made. Agency will provide AWS with credits in the amount of
any overpayment made by AWS for fee and reimbursable expenses.
(i) Fee reconciliations for direct marketing will reflect actual hours
worked at each billing rate, by position, by department;
(ii) Fee reconciliations for advertising materials and deliverables will
be supported by advertising and production summaries, including
number of advertisements placed and number of units actually
produced and shipped; and
(iii) Pass-through reconciliations will be supported by vendor invoices
(except summary compilations in the case of courier charges) and
travel expense summary reports.
All non-media billing charges shall be in accordance with Schedule II,
attached hereto and made a part hereof. In no event shall AWS be liable
for media or non-media bills unless the Agency submits such bills to AWS
within three (3) months from the date in which costs were incurred.
B. Receipt or acceptance by AWS of any statement or invoice furnished
pursuant hereto or any sums paid by AWS hereunder shall not preclude AWS
from questioning the correctness thereof within two (2) years of the year
in question, and if any inconsistencies or mistakes are discovered in
such statements or payments, they shall be immediately rectified and
prompt adjustments and corresponding payments shall be made to compensate
thereof.
C. AWS agrees to pay any "short rates" with which AWS is justly charged by
the media placed on AWS's behalf by Agency for any premature termination
of a contract that is caused by AWS. Agency shall pay any "short rates"
with which AWS is charged by media for any premature termination of a
contract that is caused by Agency.
Contract No.________
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The Agency shall submit invoices for all work performed under this Agreement.
Invoices against this Agreement shall indicate the work performed for which
billing is rendered, shall be in accordance with approved estimates and shall
be submitted in duplicate.
ARTICLE 10 - NOTICES
Any notice or demand which under the terms of this Agreement or under any
statute must or may be given or made by Agency or AWS shall be in writing and
shall be given or made by telegram, telex, confirmed facsimile or by
certified or registered mail to the addresses noted in the first paragraph of
this Agreement.
Such notice or demand shall be deemed to have been given or made when sent by
telegram, telex, or facsimile or when deposited, postage prepaid in the U.S.
mail.
ARTICLE 11 - TITLE
A. Except as set forth in Paragraph C below, all creative work and work
products, including, but not limited to, direct marketing and/or
marketing plans, media plans, ideas, and direct marketing materials
developed by the Agency, or on Agency's behalf, for AWS in connection
with this Agreement, and any and all copyrights therein are hereby
assigned and agreed to be assigned by Agency to AWS and shall be and will
remain the exclusive property of AWS, which may use any of such as it
deems appropriate. All such work and work products shall be considered
"works made for hire" to the extent allowed by law. Agency shall acquire
for AWS from Agency subcontractors or others all such assignments, rights
and covenants, and will furnish AWS with all such documentation, as, any
of them, are needed in AWS's reasonable opinion to assure vesting in it
of title to, and unrestricted ownership rights in, such work, work
products and copyrights, and to perfect the enforceability of such
copyrights.
Should the Agency desire to use material developed for AWS for another
client or for other business reasons it may request AWS's permission to
do so. Granting of any such permission shall be at AWS's sole discretion.
B. If Agency furnishes AWS with materials previously copyrighted by Agency
and not originally prepared hereunder, Agency hereby grants and agrees to
grant to AWS unrestricted, non-exclusive, royalty-free licenses for all
purposes under any and all copyrights in such materials, with the
unrestricted right to grant such sublicenses under those licenses as AWS
may see fit, to the extent that such materials are used in conjunction
with any of the work and work products referred to in Paragraph A of this
Article.
C. If AWS has consented to the inclusion of materials owned or copyrighted
by others, or in which other rights may be claimed by others (and there
shall be no such inclusion without AWS's prior consent), then the Agency
shall notify AWS of the scope of the rights and permissions the Agency
intends to obtain with respect to such materials and shall modify the
scope of same as requested by AWS. Copies of all rights and permissions
clearly identifying the included works to which they apply shall be
supplied to AWS prior to program completion.
D. Agency warrants the originality of the work prepared for AWS hereunder
(except if such work is in the public domain) and its disclosure to AWS
exclusively and that, except as provided in Paragraphs B and C above, no
portion of the material prepared for AWS under this Agreement is derived
from copyrighted material.
Contract No._______
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E. Agency undertakes that no part of the creative work or work products
developed for AWS in connection with this Agreement, whether or not
copyrightable, shall be disclosed to any persons or used by the Agency to
produce creative materials for any persons other than AWS without the
express written permission of AWS.
F. Agency shall retain all materials for two years or for such longer period
as is necessary for purposes of carrying out Agency's obligations
hereunder after which time they will be returned to AWS, placed in
public storage at AWS's expense, or destroyed as requested by AWS.
Agency shall safeguard and be responsible for all materials entrusted to
it by or on behalf of AWS and shall return such materials to AWS upon
request of AWS, and, in any event, as soon as practicable upon
termination of this Agreement. Agency shall provide copies of materials
requested by AWS to the extent necessary for AWS to litigate or negate
claims or to handle proceedings before regulatory agencies.
ARTICLE 12 - USE OF INFORMATION
Except under the conditions stated in the next sentence, any materials and/or
information furnished or disclosed by AWS or developed by the Agency
hereunder is the property of and shall be deemed proprietary and confidential
to AWS and shall be surrendered to AWS at the conclusion of this Agreement,
or shall be destroyed if AWS shall so direct in writing. Unless such
information or materials were previously known to the Agency free of any
obligation to keep it confidential as agreed to by both parties, or is
subsequently made public by AWS or by a third party having a legal right to
make such disclosure, it shall be held in confidence by the Agency for a
period of twenty (20) years, shall be used only for the purposes hereunder,
and may be used for other purposes only upon such terms and conditions as
may be mutually agreed upon in writing.
ARTICLE 13 - EXCLUSIVITY AND RESERVATION OF RIGHTS -
A. For the duration of this Agreement, including the period of notice prior
to its effectiveness of termination, Agency and any of its constituent
companies anywhere in the world shall not undertake any work for any of
the following companies or their wireless subsidiaries or partnerships:
Ameritech, Bell Atlantic, Bell South, British Telecom, IBM, MCI, NYNEX,
Pacific Telesis, Southwestern Bell, Sprint or US West.
B. Further, Agency and any of its constituent companies shall not work for
other companies that compete with any AWS unit unless at AWS sole
discretion the Agency receives written approval from AWS and the
following three (3) conditions are met:
1. The non-AWS business is not competitive with the AWS account handled
by the Agency.
2. A "virtual wall" is erected so that none of the people working on
AWS's business share any information with people working on the
competitive account.
3. The Agency understand that if the competitive company shifts its
focus and strategy to become a strategic competitor, the Agency must
then choose to work only for AWS or the competitor.
ARTICLE 14 - AGENCY'S INFORMATION
No specifications, drawings, sketches, models, samples, tools, computer or
other apparatus programs, technical or business information or data, written,
oral or otherwise, furnished by Agency to AWS under this Agreement, or in
contemplation of this Agreement, shall be considered
Contract No.________
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by Agency to be confidential or proprietary unless subject matter so
furnished is owned by AWS as defined and provided under the Article 11
(Title) or Article 12 (Use of Information), contained herein.
ARTICLE 15 - INDEMNIFICATION/INFRINGEMENT
The Agency agrees to indemnify and save harmless AWS, its subsidiaries,
affiliates and its customers and their officers, directors, employees
successors and assigns (collectively referred to as "AWS") from and
against the following claims, losses, suits, demands, or liens:
A. Any tortious act, omission, or statement of the Agency or any person
employed by or under contract with the Agency that results in injury
(including death), loss or damage to any person or property, including
libel, slander, and defamation;
B. Injuries or death to persons or damage to property, including theft, in
any way arising out of or occasioned by, caused or alleged to have been
caused by or on account of the performance of the work or services
performed by Agency or persons furnished by Agency, except to the
extent such injury or damages are caused by AWS's sole negligence or
willful misconduct;
C. Any failure on the part of the Agency to satisfy all claims for labor,
equipment, materials and other obligations relating to the performance
of the work hereunder;
X. Xxxxxx, unfair competition, plagiarism, idea misappropriation under
implied contract;
E. Assertions under Worker's Compensation or similar acts made by persons
furnished by Agency or by any subcontractor, or by reason of any
injuries to such persons for which AWS would be responsible under
Worker's Compensation or similar acts if the persons were employed by
AWS;
F. Any failure by the Agency to perform Agency's obligations under this
clause or, Article 16 (Insurance); and
G. Any act of infringement of any patent, trademark, or copyright; any
title, slogan, or other trademark; or any unauthorized use of trade
secret or other proprietary interest, except where such infringement or
unauthorized use arises solely from Agency's adherence to AWS's written
instructions which are so specific as to directly cause said
infringement or unauthorized use, in which case AWS shall so indemnify
Agency; provided however, if such instructions specify (1) commercial
material which is available on the open market or is the same as such
material or (2) material of Agency's origin, design or selection, and
the adherence to such instructions results in the infringement or
unauthorized use, then Agency shall indemnify AWS for any such
infringement or unauthorized use.
However, the indemnification in (A) shall not apply to claims for loss or
damage to property arising solely from Agency's reasonable reliance upon
the accuracy, completeness and propriety of information furnished by AWS
concerning its and its competitors organization, products, industry and
services in developing or producing work or work products under this
Agreement.
Each party shall defend or settle, at its own expense, any action or suit
against the other for which it is responsible hereunder and shall
reimburse the other for reasonable attorneys' fees, interest, costs of
suit and all other expenses incurred by the other in connection therewith.
Each party shall notify the other promptly of any claim for which the
other is responsible hereunder and shall cooperate with the other in every
reasonable way to facilitate the defense of any such claim.
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ARTICLE 16. INSURANCE
Agency shall maintain during the term of this Agreement (1) Worker's
Compensation insurance as prescribed by the law of the state or nation in
which the work is performed; (2) employer's liability insurance with limits
of at least $300,000 for each occurrence; (3) comprehensive automobile
liability insurance if the use of motor vehicles is required, with limits of
at least $1,000,000 combined single limit for bodily injury and property
damage for each occurrence; (4) Comprehensive General Liability ("CGL")
insurance, including Advertiser's Liability and Blanket Contractual Liability
and Broad Form Property damage, with limits of at least $5,000,000 combined
single limit for personal injury and property damage for each occurrence. All
CGL insurance shall designate AWS as an additional insured for work Agency
performs for AWS. Agency shall cause its subcontractors to maintain insurance
similar in form and amount as AWS shall approve, which approval shall not be
reasonably withheld. All such insurance must be primary and required to
respond and pay prior to any other available coverage.
Agency agrees that Agency, Agency's insurer(s) and anyone claiming by,
through, under or in Agency's behalf shall have no claim, right of action or
right of subrogation against AWS and its customers based on any loss or
liability insured against under the foregoing insurance. Agency shall furnish
prior to the start of work certificates or adequate proof of the foregoing
insurance. AWS shall be notified in writing at least thirty (30) days prior
to cancellation of or any change in the policy.
ARTICLE 17 - RELATIONSHIP
The Agency shall exercise full control and direction over the employees of
the Agency performing the work covered by this Agreement. Any changes in
personnel performing services for AWS that may be reasonably requested by AWS
through its authorized representative shall be made promptly.
Neither the Agency nor its employees or agents shall be deemed to be AWS's
employees or agents, it being fully understood that Agency employees are
entitled to no benefits or compensation from AWS. It is understood that the
Agency is an independent contractor for all purposes and at all times. The
Agency is wholly responsible for withholding and payment of all applicable
federal, state and local income and other payroll taxes with respect to its
employees, including contributions from them as required by law. Agency
agrees to indemnify, defend and hold AWS harmless from any claims made by
Agency employees or former Agency employees, their heirs or assigns, against
AWS for direct compensation, including salaries and bonuses, or for any
benefits such as medical, dental, life insurance or pension benefits.
ARTICLE 18 - SUBCONTRACTS
The Agency shall be responsible for informing subcontractors of their
responsibility to protect any confidential and proprietary information
included in any work subcontracted hereunder, and Agency shall undertake all
necessary precautions to insure that each subcontractor is in compliance with
this Article. This Agreement is not intended to create any legal rights or
interests as to persons not directly a party hereto. In accordance with this
understanding, Agency shall remain fully, directly and solely responsible for
all expenses it incurs of any nature whatsoever and shall indemnify, defend
and hold AWS harmless from any and all claims made against AWS by persons not
a party to this Agreement for non-payment of such expenses (except those
incurred as an authorized and disclosed direct marketing agent for AWS in
connection with approved work or services performed or purchases made
hereunder).
Contract No.________
Page l2 of 15
If Agency elects to subcontract out any work, then the Agency shall request
competitive quotations from a minimum of three vendors when the subcontracted
work is estimated to exceed $20,000. The quotation process shall be administered
by the Agency and contracts awarded by the Agency, but only with the prior
concurrence of AWS. Copies of the quotations shall be submitted to AWS for
review and approval prior to the award of a contract. In the event a selected
vendor cannot perform, the Agency shall select another vendor upon notification
to and approval by AWS. The Agency shall not fragment any subcontracted work to
avoid the obligation to obtain quotations.
ARTICLE 19 - USE OF AWS'S NAME, LOGO, AND MARKS
All use of AWS's name, logo and marks shall be in strict conformance with any
written AWS, Corporate or other guidelines provided by AWS and shall be
approved in advance by AWS. AWS retains all rights to restrict or terminate any
use of its trademark and marks at anytime.
ARTICLE 20 - AUDIT
Agency shall maintain accurate and complete records including a physical
inventory, if applicable, of all costs incurred under this Agreement in
performing the services covered by this Agreement, including the costs of labor
(other than individual salaries and bonuses of agency employees), equipment,
materials, and other disbursements for purposes of certifying that the bills to
AWS and actual Direct Salaries and Profit computations are accurate and in
accordance with the definitions set forth in this Agreement. Discrepancies in
the bills shall be remedied by Agency within a reasonable period of time after
they are discovered, by either crediting or debiting AWS or by issuing a check
to AWS. These records shall be maintained in accordance with recognized
commercial accounting practices so they may be readily audited and shall be held
until costs have been finally determined under this Agreement and payment or
final adjustment of payment, as the case may be, has been made. Agency shall
permit AWS or AWS's representative to examine and audit these records on
reasonable notice. Audits shall be made not later than two (2) calendar years
after the end of the year in question.
ARTICLE 21 - ASSIGNMENT
The Agency shall not assign any right under this Agreement (excepting monies due
or to become due), subcontract any work or delegate any other obligations to be
performed or owed under this Agreement without the prior written consent of
AWS. Any attempted assignment or delegation in contravention of the above
provisions shall be void and ineffective. Any assignment of monies shall be void
and ineffective to the extent that (1) Agency shall not have given AWS at least
thirty (30) days prior written notice of such assignment or (2) such assignment
attempts to impose upon AWS obligations to the assignee additional to the
payment of such monies, or to preclude AWS from dealing solely and directly with
Agency in all matters pertaining to this Agreement including the negotiation of
amendments or settlements of charges due. All work performed by Agency's
subcontractor(s) at any time shall be deemed work performed by the Agency.
ARTICLE 22 - TAXES
AWS shall reimburse Agency only for the following tax payments with respect to
transactions under this Agreement unless an exemption applies: state and local
sales and use taxes, as applicable. Taxes payable by AWS shall be billed as
separate items on Agency's invoices and shall not be included in Agency's
prices. AWS shall have the right to have Agency contest any such taxes that AWS
reasonably deems improperly levied, at AWS's expense and subject to its
direction and control.
Contract No.________
Page 13 of 15
ARTICLE 23 - COMPLIANCE WITH LAWS
Agency and all persons furnished by Agency shall comply at their own expense
with all applicable federal, state and local laws, ordinances, regulations and
codes, including identification and procurement of required permits,
certificates, licenses, insurance approvals and inspections, in performance
under this Agreement. Agency agrees to indemnify AWS and its customers for any
loss or damage that may be sustained by reason of any failure to do so.
ARTICLE 24 - PUBLICITY, ADVERTISING
The Agency agrees not to advertise, promote, make use of any identification of
AWS or publicity matters relating to the services performed under this Agreement
or to mention or imply any relationship or connection with AWS in such direct
marketing, promotion or publicity without the prior written consent of AWS. The
term "identification" includes any trade name, trademark, service mark,
insignia, symbol, or any simulation thereof, and any code, drawing,
specification, or evidence of AWS's inspection. This article does not modify
Article 12 (Use of Information).
ARTICLE 25 - WAIVER
The failure of either party at any time to enforce any right or remedy available
to it under this Agreement with respect to any breach or failure by the other
party shall not be construed to be a waiver of such right or remedy with respect
to any other breach or failure by the other party.
ARTICLE 26 - SEVERABILITY
In the event that any one or more of the provisions contained herein shall for
any reason be held to be unenforceable in any respect under the laws of any
state, or of the United States of America, such unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall then be
construed as if such unenforceable provision or provisions had never been
contained herein.
ARTICLE 27 - SURVIVAL OF OBLIGATION
The obligations of the parties under this Agreement that by their nature would
continue beyond the termination, cancellation or expiration of this Agreement,
including by way of illustration only and not limitation, those in the clauses
in Article 23 (Compliance With Laws), Article 16 (Insurance), Article 15
(Indemnification/Infringement), Article 12 (Use of Information), shall survive
termination, cancellation or expiration of this Agreement.
ARTICLE 28 - CHOICE OF LAW AND VENUE
The construction, interpretation and performance of this Agreement shall be
governed by the laws of the State of New Jersey, excluding its choice of law
rules, and any action on this Agreement will be in the state or federal courts
of the state of New Jersey.
ARTICLE 29 - RELEASES VOID
Neither party shall require (1) waivers or releases of any personal rights or
(2) execution of documents, which conflict with the terms of this Agreement from
employees, representatives or customers of the other in connection with visits
to its premises and both parties agree that no such releases, waivers or
documents shall be pleaded by them or third persons in any action or proceeding.
Contract No.________
Page l4 of 15
ARTICLE 30 - SPECIAL SERVICES
At the request of AWS, Agency may be asked to perform the following special
marketing communications services:
A. Create and produce sales promotion and collateral material.
B. Develop new product or service concepts and test marketing of new products
and services.
C. Conduct market research.
D. Design services including packaging, trademarks and corporate identity
programs.
E. Stage and conduct sales, marketing positioning, sporting or other events
and meetings.
F. Design and prepare exhibits for trade shows or other venues.
G. Prepare visual presentation materials.
H. Other services outside of the scope of direct marketing.
For any special services requested by AWS and performed by Agency, compensation
shall be mutually agreed upon in writing prior to the start of work.
ARTICLE 31 - NON-EXCLUSIVE RIGHTS
It is expressly understood and agreed that this Agreement does not grant to
the Agency an exclusive right or privilege to provide any and all of the
services described in this Agreement which AWS may require. It is, therefore,
understood that AWS may contract with other agencies for the procurement of the
same or comparable services.
ARTICLE 32 - CHANGES IN, TERMINATION, OR SUSPENSION OF PARTICULAR WORK
AWS may, at any time, by written notice, advise the Agency of AWS's intent to
make changes in, additions to, or deductions from, the work on any specific
program under an approved estimate. If such intended changes cause an increase
or decrease in the amount or character of the services to be rendered under
this Agreement, or in the time required for its performance, the Agency shall
promptly so advise AWS, specifying the impact of such change on the approved
estimates. Thereafter, if AWS elects to make such change, an equitable
adjustment to all appropriate terms and conditions, including the amount to be
paid to the Agency and the time for performance shall be made and this
Agreement shall be modified accordingly in writing. Notwithstanding anything
contained in this Article 32 to the contrary no change shall have the effect of
reducing the required ninety (90) days notice of termination.
ARTICLE 33 - ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Agency and AWS
relating to the subject matter hereof and shall not be modified or rescinded in
any manner except by a writing
Contract No.________
Page 15 of 15
executed by both parties. Other than as expressly provided herein, both the
Agency and AWS agree that no prior or contemporaneous oral representations form
a part of their agreement. Additional or different terms inserted in this
Agreement by Agency, or deletions thereto, whether by alterations, addenda, or
otherwise, shall be of no force and effect, unless expressly consented to by AWS
in writing. The provisions of this Agreement supersede all contemporaneous oral
agreements and all prior oral and written quotations, communications, agreements
and understandings of the parties with respect to the subject matter of this
Agreement.
WITNESS WHEREOF, the Agency and AWS have executed this Agreement in duplicate on
the day and year below written.
CELLULAR TELEPHONE COMPANY
XXXXXXX XXXXXXXX XXXXXXXX, INC. d/b/a AT&T Wireless Services
------------------------------- ----------------------------
By: Xxxxxx X. Xxxxxxx By: Xxxxxxx X. Xxxxxxx
____________________________ ________________________
(Signature) (Signature)
Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx
SVP & Chief Financial Officer Vice President
_______________________________ __________________________________
(Name & Title Typed or Printed) (Name & Title Typed or Printed)
7/24/97 7/16/97
_______________________________ __________________________________
(Date) (Date)
SCHEDULE I
1997 BSH Agency Bonus Structure -
AWS NY/NJ
7/97
OBJECTIVE: Reward BSH with bonus when company-wide annual business goals are met
or exceeded across three program areas: [***], [***], and [***]. Bonus based on
% of total year fees by program (all bonus fees to be paid in 1998). Note:
research and data fees are not included in 1997.
[***]
[***]
Business Goal
Low to Medium to High
--- ------ ----
Response Rate Range* [***] to [***] to [***]
Bonus % [***] to [***] to [***]
* Response rate / associated bonus to be determined after each [***] for
[***] (Data not included).
[***]
Low to Medium to High
--- ------ ----
Response Rate * [***] to [***] to [***]
Bonus % [***] to [***] to [***]
* Response rate / associated bonus to be
determined after each [***].
[***]
Above Churn Target to Target to Below Target
------------------ ------ ------------
End of Year Total [***] to [***] to [***]
Voluntary Churn [***] of target* to [***] of target * to [***] of target
Bonus % [***]
[***] = x [***] = x [***]
* For every % point below target of voluntary churn BSH will receive [***] of
the bonus pool with a maximum of [***] bonus (below target bonus based (x) =
target [***] dollars).
Note: To receive any payout, churn must reach a minimum of [***] of the target.
After [***] payout is incremental based on delivery (e g. if [***] of target
churn is achieved,
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Xxxxxxx Bonus Fees Opportunity
7/97
[***]
Business Goal
Response Rate [***]
Low Medium High
--- ------ ----
[***] to [***] to [***]
Bonus % [***] [***] [***]
CALCULATION
Bonus % [***] [***] [***]
X X X
Est. Fee Total [***] [***] [***]
= = =
Bonus $ Opportunity [***] to [***] [***]
Range
[***] Fees *
[***] $[***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
------
[***]
* Note: Actual fees will be calculated after program completion.
(2)
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
[***]
7/97
Business Goal
Response Rate [***]
Low Medium High
--- ------ ----
Response Rate [***] to [***] to [***]
Bonus % [***] [***] [***]
CALCULATION
Bonus % [***] to [***] to [***]
X X X
Est. Fee Total [***] [***] [***]
= = =
Bonus $ Opportunity [***] [***] [***]
Range
Estimated Fees (Fees to be actualized at year-end)
[***] [***]
[***] [***]
[***] [***]
[***] 2B Control [***]
[***] 2B [***]
[***] III [***]
-----
[***]
Brainstorming [***]
[***] [***]
-----
[***]
(3)
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
[***]
7/97
Above Churn Target Target Below Target
End of Year Total [***] [***] [***]
Voluntary Churn
Bonus % of Total [***] of target to [***] of target to [***] of target
Retention Fees [***] [***] = x plus up to [***]
increase of x
CALCULATION
Est. Bonus % [***] of [***] [***] of [***] [***] of [***]
X X X
Est. Fee Total [***] [***] [***]
= = =
Bonus $ Opportunity Range [***] to [***] to [***]
Estimated Retention Fees *
[***] $ [***] $
----- - --- -
Jan. Rate [***] [***] Auto [***] [***]
Feb. Rate [***] [***] Ed. Mailing [***]
[***] [***] Life Cycle [***]
Bond [***] [***] Predictive Churn [***]
Bond 15/24 [***] [***] [***]
March Rate [***] [***] Lifecycle [***]
April Rate [***] [***] [***] [***]
May Rate [***] [***] Creative Platform [***]
June Rate [***] [***] [***] [***]
July Rate [***] [***] [***] [***]
Bond [***] [***] -----
June Remail [***] [***]
August Rate [***] [***]
Rate [***] Sept.-Dec [***]
[***] 1Q [***]
[***] [***]
Rate [***] [***]
Consumer 1997 DPCS [***] [***]
Deact Research March [***]
Rate Elimination [***]
[***] [***]
DPCS [***] [***]
[***] 2Q [***]
KAR Meeting 4/16 [***]
2Q [***] [***] * Actual as of 5/23.
-----
[***]
(4)
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
1997 Total BSH Bonus
Opportunity Range
7/97
Low High
--- ----
$ $
- -
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
------ ------
Total [***] [***]
NOTE: The fees listed for each of the projects herein are rough figures. The
bonus calculation will be done based on actual fees for each program.
In addition, as a point of clarification, the "Below Target" portion of the
bonus calculation for [***] should be interpreted to be [***]. This calculation
should not be interpreted to mean that BSH gets [***]
(5)
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Contract No._______
Schedule II
Page l of 2
SCHEDULE II
NON-MEDIA BILLING SCHEDULE
Net out-of-pocket ("Net O-O-P") as used in this Schedule II shall mean the
amount of money the Agency pays to outside suppliers on behalf of AWS based on
an authorized estimate.
X. Xxxxxxx for Publication Advertising and Outdoor Advertising
1. Preparation of rough layouts and copy No Charge
2. Production of comprehensive layouts:
- purchased from outside suppliers Net O-O-P
- produced by Agency personnel Quoted in advance
3. Type composition, printing, engraving;
electrotypes, finished art, photographs,
photostats and other reproduction mats,
stereotypes, quantity proofs:
- purchased from outside suppliers Net O-O-P
- produced by Agency personnel Quoted in advance
4. Endorsement fees, testimonials, etc. Net O-O-P
5. Fashion Coordination performed by:
- studio and/or stylist Net O-O-P
- Agency personnel (Competitive Fee Schedule) Net O-O-P
6. Travel expenses of Agency personnel to
supervise production, obtain testimonials
and otherwise directly attributable to
specific publication and outdoor advertising Net O-O-P
7. Supervision and checking No Charge
Contract No.________
Schedule II
Page 2 of 2
8. Talent for use in test and/or finished Net O-O-P
advertising
9. Production of test advertisements Net O-O-P
10. Research and licensing costs for stock Net O-O-P
photography
11. Location scouting Net O-O-P
12. All other elements required to produce Net O-O-P
publications and outdoor advertising
not referred to above
B. Postage, Express and Freight, and Sales Taxes
1. Incidental to normal business routine No Charge
between Agency and client home office
2. Shipment of advertising materials to Net O-O-P
suppliers, media, etc.
3. Sales Taxes Net O-O-P
D. Telephone, Teletype, Telegraph and Facsimile
1. Incidental to normal business routine No Charge
between Agency and client home office
2. Attributable to unusual service or to the Net O-O-P
production of specific advertising
projects
E. Research
1. All research conducted by Agency unless No Charge
authorized by client
2. All media research normally provided by No Charge
agencies
3. Test materials Net O-O-P
4. Travel for Agency personnel to supervise, Net O-O-P
participate in and observe the research
F. Free-Xxxxx Creative/Technical Talent Net O-O-P