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EXHIBIT 10.33
AMERICAN VETERINARY MEDICAL FOUNDATION
This (this "Agreement") is executed effective as of
10/21/99 (the "Effective Date") by and between the American Veterinary Medical
Foundation (AVMF), a non-profit corporation located at 0000 X. Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and Xxxx.xxx ("Sponsor"), located at 000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000.
WHEREAS, AVMF is producing a fundraising campaign consisting of various
video-taped programs for the education of veterinary professionals and related
public relations materials for a national consumer education and information
program (the "Program"); and
WHEREAS, Sponsor wishes to support the campaign and have their company
and product(s) featured in the Program; and
WHEREAS, in consideration for the Sponsor's participation in the
Program, AVMF is willing to provide Sponsor with promotional messages to be
included within video, the consumer public relations materials and other parts
of the Program;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed by the parties
hereto, it is agreed as follows:
1. AVMF will produce a series of video programs, each approximately
one-half hour in length, to be entitled "Veterinary ClientLink" and containing
current industry news, topical veterinary features, and educational and
promotional materials targeted to practicing veterinarians and their staff
members. The series will consist of a minimum of four (4) video programs to be
distributed in each twelve (12) month period during the term of this Agreement.
The series is to be distributed, as each program is completed, to selected
members of the profession on VHS tapes for their information and continuing
education.
2. AVMF will distribute not less than ten thousand (10,000) tapes
of each Veterinary ClientLink video program (40,000 total minimum per year) to a
selected group of veterinary hospitals and other key industry professionals.
This distribution group shall be comprised of veterinarians and other AVMF
supporters contributing five hundred dollars ($500) or more per year to the AVMF
and participating in its Memorial program, as well as additional hospitals,
veterinarians or others as determined by AVMF.
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3. AVMF shall provide Sponsor with commercial placements and other
sponsorship benefits in Veterinary ClientLink videos produced and distributed
during the term of this Agreement as follows:
a. Sponsor's logo on the video jacket or packaging.
b. Recognition in the video's opening or closing credits,
such as "Produced through a grant from (Sponsor)"
c. A thirty (30) second commercial (or 2 fifteen (15)
second commercials) in each program, to be provided by
Sponsor on Beta SP tape and inserted by AVMF. The
commercial(s) may either feature a product related to
Sponsor's exclusive topic or another product of
Sponsor's choosing provided it has not been selected as
an exclusive topic by another sponsor.
d. Collaboration on one (1) feature story topic per year
related to Sponsor's specialty or product issue. This
topic shall be exclusive to Sponsor and may be renewed
annually.
e. Insertion of one (1) piece of Sponsor's literature in
the packaging of each video. Such material must conform
to AVMF's packaging specifications.
4. Sponsor may contribute detailed information, scientific studies,
video taped materials and other guidance to assist in the scripting of the video
feature related to Sponsor's specialty or product category. AVMF agrees to work
with Sponsor to develop a mutually acceptable video feature. Sponsor shall be
granted the right of approval for its video feature script and related media
releases to insure their accuracy and conformance with any regulatory
requirements. However, to maintain the Program's editorial integrity, all other
video content shall be determined solely by AVMF.
5. To assure timely delivery of all Program elements, Sponsor
agrees to provide all information and materials required in the production of
Sponsor's Veterinary ClientLink feature story and/or other public relations
materials in the time and manner as may be prescribed by AVMF and agreed to by
Sponsor. AVMF shall not be liable for delays or non-performance of this
Agreement as a result of Sponsor's failure to provide the required information
and materials as agreed upon.
6. Sponsor has sole responsibility for the content of the materials
and information it submits to AVMF for inclusion in the Program, and warrants to
AVMF that: (i) it is authorized to sell the products or services advertised and
to use any information or depiction submitted to AVMF; (ii) it has the right to
use any trademarks, service marks, trade names, images, logos and slogans
submitted; and (iii) to the best of its knowledge the information and materials
submitted to AVMF will be true and accurate and in compliance with all
applicable laws and regulations.
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7. AVMF warrants to Sponsor that it has obtained all necessary
approvals and authorizations to provide the information and materials contained
in the Program and that the Program, its contents and distribution are in
compliance with all applicable laws and regulations.
8. Each party shall indemnify and hold harmless the other party,
its officers, directors, employees, agents and subcontractors from and against
all third party claims, demands, actions and costs to which the other party is
or may become subject insofar as they arise out of or are alleged or claimed to
arise out of (i) any breach by a party of any of its obligations under this
Agreement, or (ii) any negligent or willful act or omission by a party or its
employees, agents or subcontractors.
9. For public education and promotional purposes, AVMF will also
prepare and distribute to the media the following news releases based on
Sponsor's Veterinary ClientLink feature story:
a. Production and distribution of a Video News Release
(VNR) package which will be offered to approximately
twelve hundred (1,200) broadcast news points and
distributed to television stations and networks by
satellite uplink.
b. Use of Sponsor's expert spokesperson in a one (1) to two
(2) hour Satellite Media Tour (SMT) and a similar Radio
Media Tour (RMT) providing television and radio news
interview opportunities on the same topic.
c. Production and distribution of a sixty (60) second
national Radio News Release (RNR) on the topic.
d. Production and distribution of a television Public
Service Announcement (PSA) on the topic.
e. Print releases delivering the story to major newspapers,
consumer and special interest magazines and the
veterinary trade press.
f. Publication of the feature story on the Veterinary
ClientLink's Internet web site and other specialty sites
used for media and veterinary access.
g. Hyper-linking the feature story on Veterinary
ClientLink's Internet web site to Sponsor's Internet
site, upon Sponsor's request.
AVMF will provide a non-binding written schedule of the proposed
dates and times of the above news releases, media tours and publications to
Sponsor no later than thirty (30) days prior to the scheduled news release media
tour or publication. AVMF will provide Sponsor with weekly updates to the
schedule. In addition, within sixty (60) days after the end of a program run,
AVMF will provide to Sponsor a listing of the media entities that picked up the
piece and the number of media impressions made for each piece.
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10. AVMF agrees that Sponsor may publicize and otherwise promote its
relationship with AVMF as an underwriter and Sponsor of the Program, provided,
however, that Sponsor shall have furnished advance copies of such materials
prior to their use. AVMF shall have a period of five (5) business days after
receipt of such materials (by overnight courier or by facsimile transmission) to
review them and to notify Sponsor of any objection to such use, stating with
reasonable specificity the nature of the objection and the reasons therefor.
Such objection shall be based only on a reasonable conclusion that the proposed
use is materially misleading to the proposed recipient or would imply to a
reasonable recipient thereof an endorsement by AVMF of specific Sponsor
product(s) in comparison to the product(s) of any other vendor. If Sponsor does
not receive a response within the five (5) business day period set forth above,
it will be presumed that there are no objections to the materials and Sponsor
will be free to make use of such materials. If, within such five (5) business
day period, Sponsor receives AVMF's objections, Sponsor will thereafter
cooperate in good faith with AVMF to respond to and resolve and such objections.
Sponsor may reproduce and use Sponsor's featured topic in the Veterinary
ClientLink video and all AVMF-associated media releases in its marketing and
public relations activities.
11. AVMF hereby acknowledges that it does not now have and shall not
hereafter acquire, any interest in any of Sponsor's trademarks, trade names,
service marks or logos.
12. Except for the usage provided herein for Sponsor's feature
story, AVMF and its assigns retain all copyrights to and control over use of the
Veterinary ClientLink materials and other Program materials. Any other
duplication or use, other than as has been specifically granted herein to
Sponsor, may be made only with AVM F's prior written approval. Upon request by
Sponsor, AVMF agrees to provide Sponsor with copies of Veterinary ClientLink
videos for Sponsor's use in connection with Sponsor's business, and not for
resale, at AVMF's cost (such cost may include a handling fee of up to 10% of the
cost of the video).
13. To produce and promote the Veterinary ClientLink and its
national consumer media campaign, AVMF has contracted with media specialists
experienced in video production and media relations for the veterinary
profession. Within the scope of this Agreement, these agents may act as a
representative of AVMF in communicating with the Sponsor and in the production
of Sponsor's features. Notwithstanding the foregoing, AVMF shall remain liable
for performance of its obligations under this Agreement.
14. This Agreement shall commence on the Effective Date and, unless
terminated earlier as provided for in herein, shall continue for a period of
three (3) years from the release date of the first Veterinary ClientLink video.
In the event that AVMF determines to continue the Program beyond three (3)
years, Sponsor shall be granted the option and right of first refusal to
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continue sponsorship, with exclusivity for the category of online or offline pet
retail companies which sell consumer pet products for the Internet, under the
terms and conditions then in effect.
15. AVMF agrees to feature Sponsor's exclusive category and
Sponsor's products in one (1) issue during the each year of this Agreement.
Sponsor shall pay AVMF the sum of one hundred sixty nine thousand seven hundred
and seventy dollars ($169,770) per issue sponsored during the (3) year term of
this Agreement as full and final consideration for its annual participation in
the Program and all related sponsorship benefits as described above. An initial
payment (the "Initial Payment") of eighty thousand dollars ($80,000) shall be
due upon execution of the Agreement to allow immediate production scheduling of
the Veterinary ClientLink video and other promotional materials. Additional
payments (the "Additional Payments") of eighty nine thousand seven hundred and
seventy dollars ($89,770) per issue shall be due upon notification of the
scheduling of Sponsor's feature story for production, anticipated to be November
15, in 1999. Sponsor will be notified by AVMF of the scheduling of the feature
date no later than sixty (60) days prior to production. In each subsequent year
during the term of this Agreement, the Initial Payments shall be due and payable
on the first day in June, and the Additional Payments shall be due upon
notification of the scheduling of Sponsor's feature story for production.
16. Sponsor shall be granted category exclusivity for its Veterinary
ClientLink feature story and related media releases for each year of this
Agreement. AVMF agrees not to produce, broadcast or otherwise publish within the
scope of this Program other feature stories on this same category in
collaboration with or promoting any other Sponsor. Sponsor's category issue of
exclusivity shall be online or offline pet retail companies.
17. In the event that either party defaults or breaches any of the
material provisions of this Agreement, the other party shall have the right to
terminate this Agreement by giving written notice to the defaulting party,
provided, however, that if said defaulting party cures said default or breach
within thirty (30) days after said notice shall have been given, this Agreement
shall continue in full force and effect. The failure on the part of either of
the parties to exercise or enforce any right conferred upon it hereunder shall
not be deemed to be a waiver of any such right nor operate to bar the exercise
or enforcement thereof at any time thereafter.
18. If either party shall go into liquidation, or if a receiver or
trustee shall be appointed for its property, or if a party makes an assignment
for the benefit of creditors, the other party may terminate this Agreement
forthwith by giving written notice to such effect. Termination of this Agreement
for any cause shall not release either party from any obligation theretofore
accrued.
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19. Neither party hereto shall be liable to the other for any
failure to perform or delay in performance of its obligations hereunder (other
than an obligation to pay monies) caused by (i) act of God, (ii) outbreak of
hostilities, riot, civil disturbance, acts of terrorism, (iii) the act of any
government or authority (including revocation or suspension of any license or
consent), (iv) fire, explosion, flood, fog or bad weather, (v) theft, malicious
damage, strike, lock out or industrial action of any kind (vi) any cause or
circumstance whatsoever beyond its reasonable control provided the party so
affected shall give prompt written notice to the other party. The party so
affected shall promptly notify the other party when the cause or causes
preventing restricting or interfering with its performance hereunder have been
eliminated. If the failure or delay occasioned by force majeure exists for more
than six months, either party can terminate this Agreement immediately by notice
in writing to the other party, and, save in respect of any payment due, neither
party shall have any liability to the other in respect of the termination of
this Agreement as a result of an event of force majeure.
20. This Agreement represents the entire understanding between the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements. No waiver, modification or additions shall be valid unless in
writing and signed by the parties hereto. If any provision of this Agreement
shall be declared invalid or unenforceable, the remaining provisions shall
remain in full force and effect.
21. This Agreement shall be construed in accordance with the laws of
the State of Illinois, without regard to its conflicts of law principles.
22. This Agreement and the rights and obligations hereunder shall
not be assignable by either of the parties without the previous written consent
of the other party, except that either party may assign this Agreement to an
affiliate or to any entity with which it may merge or consolidate, or which it
may transfer all or substantially all of its assets to which this Agreement
relates, without obtaining the consent of the other party.
23. Notices under this Agreement shall be in writing and shall be
deemed delivered when delivered in person or deposited in the United States
mail, postage prepaid, addressed to the applicable party at the address shown at
the beginning of this Agreement. Such address may be changed from time to time
by either party by providing written notice to the other in the manner
described.
24. Any dispute, claim or controversy of any kind arising in
connection with, or relating to, this Agreement shall be resolved exclusively by
binding arbitration in accordance with the rules of the American Arbitration
Association.
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IN WITNESS THEREOF, each of the parties has duly executed and delivered this
Agreement as of the Effective Date.
AMERICAN VETERINARY MEDICAL FOUNDATION:
By: /s/ X. X. Xxxxxxxxx, DVM Date: 10-15-99
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Name: X.X. Xxxxxxxxx, DVM
Title: Chairman
Xxxx.xxx:
By: /s/ Xxxxx Xxxx Date: 10/21/99
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Name: Xxxxx Xxxx
Title: President
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