EXHIBIT 10.2
ISO 14000 MARKETING AND PROMOTION AGREEMENT
THIS AGREEMENT is being entered into as of this 20th day of September,
1996, between REALITY INTERACTIVE, INC., a Minnesota corporation with its
principal office at Suite 300, 00000 Xxxx 00xx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxx 00000 ("RII") and AMERICAN NATIONAL STANDARDS INSTITUTE, a New York
corporation, with its principal place of business at 00 XXXX 00XX XXXXXX, XXX
XXXX, XX 00000 ("ANSI").
RECITALS
WHEREAS, RII is the producer and publisher of a certain environmental
standards product published in electronic digital format and known as the ISO
14000 EMS Conformance Series (the "Series");
WHEREAS, the Series will be comprised of five separate titles
(individually, the "Title") as follows:
UNDERSTANDING ISO 14000
GETTING STARTED WITH ISO 14000
BUILDING AND IMPLEMENTING AN EMS FOR ISO 14000
INTERNAL AUDITING AND MANAGEMENT REVIEW FOR ISO 14000
PROJECT PLANNING FOR ISO 14000
The Titles and Series are collectively referred to herein as the "Product";
WHEREAS, ANSI desires to market and promote environmental training and
education materials including interactive multimedia products;
WHEREAS, RII is willing to grant ANSI the right to market and promote the
Product and to allow ANSI to earn a Promotion Royalty in accordance with the
terms and conditions as set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the recitals and the mutual
agreements and acknowledgments made herein, the parties agree as follows:
1. APPOINTMENT. RII grants to ANSI the nonexclusive right, under
the terms of this Agreement, to market and promote the Product in the United
States (the "Territory") employing such marketing and promotion programs as
identified in EXHIBIT A, or employing other programs as deemed appropriate by
the parties.
2. USE OF TRADEMARKS AND ADVERTISING. ANSI and RII agree to allow
each other to advertise and use the trade names, trademarks, images,
likenesses or other information of each other ("Approved Materials") for
product packaging, normal advertising and promotion in the Territory. In
connection with the use of ANSI's Approved Materials, RII will only use such
Approved Materials when preceded with the wording "In association with".
ANSI and RII will have the right to review and approve each others initial
use of its Approved Materials, and any future changes thereof, prior to
marketing and selling the Product. Upon reasonable notice, each party may
withdraw or modify such authorization. The respective use of these
trademarks are identified as EXHIBIT B AND C.
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3. PROMOTION ROYALTY. ANSI shall be entitled to a Promotion
Royalty of (***)% on each unit of the Product sold by RII up to $(***).
Thereafter, ANSI shall be entitled to a Promotion Royalty of (***)% on each
unit of the Product sold by RII. The amount of the Promotion Royalty shall
be calculated based on Net Receipts. As used herein, "Net Receipts" means
the gross revenues that RII receives from sales of the Product by any means
or distribution channels, less sales discounts, returns, postage, freight or
other actual shipping charges.
4. PAYMENT. The Promotion Royalty payment required to be made by
RII pursuant to section 3 herein shall be made quarterly by the 30th day of
each April, July, October and January for the preceding calendar quarter in
which such Promotion Royalty accrued. All payments will be made in U.S.
dollars and shall be accompanied by a statement, certified to by an officer
of RII, setting forth (a) the total Promotion Royalty payable to ANSI and how
it was computed, and (b) the total Net Receipts and number of copies of the
Product distributed, sold and/or leased by RII during the quarter. Further,
RII agrees at its expense to have its independent public accountants certify
(and make any necessary adjustments) to ANSI, every fiscal year-end of RII
from the date hereof, the Net Receipts derived by RII and the accuracy of the
payments made to ANSI. In the event that ANSI requires the certification
more frequently, upon request by ANSI, and with reasonable notice, RII shall
make available to ANSI the books and records of RII necessary to verify the
data supplied.
5. TERM AND TERMINATION. The term of this Agreement is three years
from the date of its execution. The term may be extended by mutual consent
of the parties. This Agreement may not be terminated by either party during
its term except for good cause. Good cause shall mean a material breach of
this Agreement. Neither party may terminate for cause unless it notifies the
other party of any alleged material breach in writing and the breach has not
been cured within 30 calendar days from the mailing date of such notice.
This Agreement will terminate automatically in the event either party ceases
to do business, in the event of either party's bankruptcy, insolvency, or
assignment for the benefit of creditors.
Upon termination of this Agreement, ANSI shall return any Product, as well as
copies of promotional materials, marketing literature, written information
and reports pertaining to the Product that have been supplied by RII. At the
same time, RII shall cease using any references to or selling any products
with the ANSI Approved Materials, including packaging and any collateral
marketing materials. Within ten (10) business days of notice of termination,
RII shall gather and destroy, from its own stock as well as from all of its
distribution channels, all copies of the product, its packaging, and all
collateral marketing materials which may contain any information referring or
related to ANSI.
6. PRICE OF PRODUCT. RII retains the right to establish the
retail price of any Title and of the Series (the "Retail Price") and to
adjust the Retail Price from time to time.
7. QUALITY AND WARRANTIES. RII warrants that the digital media on
which the Product is distributed is free from defects in materials and
workmanship. EXCEPT AS SPECIFICALLY PROVIDED IN THE PRECEDING SENTENCE, RII
MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT
TO THE PRODUCT, INCLUDING ITS CONTENT, QUALITY, PERFORMANCE, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. This section shall not limit RII's
liability with respect to intellectual property rights and indemnification.
RII shall extend its standard warranty to purchasers of the Product, a copy
of which is attached as EXHIBIT D, in the form in which it appears on the
Product Registration Card packaged with the Product. ANSI shall not
represent that RII makes any warranty other than this standard warranty.
*** Denotes confidential information that has been omitted from the exhibit and
filed seperately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
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8. OWNERSHIP AND PROPRIETARY RIGHTS. RII represents and warrants
that (i) it has all rights in and to copyrights, trade secrets and trademarks
associated with the Product under this Agreement, (ii) the use of the
literary and artistic materials and ideas contained or embodied in the
Product, containers and advertising materials, if any, furnished to ANSI by
RII in accordance with the terms of this Agreement, will not violate any law,
or infringe upon, or violate any rights of any person, firm or corporation,
and (iii) RII has no knowledge of any litigation, proceeding or claim pending
or threatened against RII which may materially affect RII's rights in and to
the Product, or the works and performances embodied thereon, the copyrights
pertaining thereto, or the rights, licenses and privileges granted to ANSI
hereunder.
9. INDEMNIFICATION. Each party shall defend, indemnify and hold
the other party and its officers, agents and employees harmless against any
liability, claim, damage, suit or expense (including reasonable attorney's
fees) caused by the first party's acts or omissions, including without
limitation, claims based on: (i) the first party's infringement of a patent,
copyright, trademark or any other intellectual property right; (ii) bodily
injury, death or damage to property caused by the first party; (iii) the
first party's conflicts of interests, fraud or criminal conduct; (iv) the
first party's non-compliance with applicable laws or regulations; (v) the
first party's failure to compensate or comply with any applicable labor
standards with respect to the first party's employees, agents or independent
contractors; and (vi) the first party's breach of this Agreement, or any
representation or warranty contained in this Agreement.
10. RELATIONSHIP OF PARTIES. During the term of this Agreement,
the relationship between RII and ANSI is that of independent contractors.
Under no circumstances shall any of the employees of one party be deemed the
employees, agents or partners of the other for any purpose.
11. CONFIDENTIALITY. Any proprietary business information or data,
written, oral or otherwise, disclosed by one party to the other
("Confidential Information") shall remain the property of the disclosing
party. The parties agree to hold all such Confidential Information in strict
confidence and not to disclose same to any third party without the disclosing
party's prior written consent. Upon expiration or termination of this
Agreement, each party shall return to the other all such Confidential
Information in its possession. RII shall permit ANSI to share such
Confidential Information with GETF only during the term of their mutual
partnership, as well as during the term of ANSI's and GETF's relationship
with RII in connection with the marketing and promotion of the Product.
12. NOTICE. All notices shall be in writing and will be delivered
personally, by confirmed facsimile transmission, by certified mail, or
overnight courier, to the addresses specified below:
If to ANSI: ANSI If to RII: Reality Interactive, Inc.
00 Xxxx 00xx Xxxxxx Xxxxx 000
Xxx Xxxx, XX 00000 00000 Xxxx 00xx Xxxxxx
Attn: VP of Finance and Admin Xxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Attn: Xxx Xxxxxxxxx, CFO
Fax: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000
Notice will be effective only upon receipt.
13. MISCELLANEOUS.
(a) ASSIGNMENT, AMENDMENT AND SEVERABILITY. Neither this
Agreement nor any rights hereunder or interest herein may be assigned by
either party without the prior written consent of the other. This Agreement
and the Exhibits hereto constitute the entire agreement between RII and ANSI.
In the event any provision of this Agreement is found to be void or
unenforceable, all remaining provisions of this Agreement will remain in full
force and effect.
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(b) GOVERNING LAW. This Agreement and the relationship between
the parties hereto will be governed by and construed in accordance with the
laws of the State of Minnesota.
(c) MODIFICATION. No modification, amendment, supplement to or
waiver of any provision of this Agreement shall be binding upon the parties
hereto unless made in writing and duly signed by all parties.
(d) ARBITRATION. All disputes arising out of or relating to
this Agreement shall be submitted to arbitration by the American Arbitration
Association ("AAA") in the City of Minneapolis, Minnesota, or the AAA in the
City and State of New York, at the option of the petitioner. In no event
shall the arbitrator have the power to include any element of punitive,
incidental or consequential damages in the arbitration award. Judgment on
the arbitration award in accordance with this Agreement may be entered in any
state or federal court of competent jurisdiction.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed as
of the date written above.
REALITY INTERACTIVE, INC. AMERICAN NATIONAL STANDARDS
INSTITUTE
BY /s/ Xxxxxx X. Xxxxxxxxx BY /s/ Xxxxxx Xxxxx
----------------------------- -----------------------------
ITS Chief Financial Officer ITS President and Chief Executive Officer
--------------------------- --------------------------------------
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EXHIBIT A
ANSI/RII PARTNERING OPPORTUNITIES
PRODUCT OPPORTUNITIES
---------------------
Web links between our respective Internet locations
MARKETING OPPORTUNITIES
-----------------------
ANSI featured in Reality PR efforts with Xxxxxxxx Communications
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EXHIBIT B
ANSI TRADEMARKS
In Association with [LOGO] ANSI
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EXHIBIT C
RII TRADEMARKS
(APPROVED MATERIALS)
[LOGO] REALITY INTERACTIVE (TM)
REAL TOOLS FOR ACCELERATED LEARNING (TM)
[LOGO] REALITY INTERACTIVE (TM)
REAL TOOLS FOR ACCELERATED LEARNING (TM)
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XXXXXXX X
XXXXXXXX XXXXXXXX
Licensor warrants that the optical media on which the Product is
distributed is free from defects in materials and workmanship. Licensor will
replace defective media at no charge, provided you return the defective item
with dated proof of payment to Licensor within ninety (90) days of the date
of delivery. This is your sole and exclusive remedy for any breach of
warranty. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, LICENSOR MAKES NO WARRANTY
OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PRODUCT,
INCLUDING ITS CONTENT, QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE. IN NO EVENT WILL LICENSOR BE LIABLE FOR DIRECT,
INDIRECT, SPECIAL; INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE
OR INABILITY TO USE THE PRODUCT OR DOCUMENTATION. EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL LICENSOR'S LIABILITY EXCEED
THE AMOUNT OF THE LICENSE FEE PAID. THE WARRANTY AND REMEDIES SET FORTH
ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESS OR
IMPLIED. Some states do not allow the exclusion or limitation of implied
warranties or limitation of liability for incidental or consequential
damages, so that the above limitation or exclusion may not apply to you.
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