EXHIBIT 10.14
FIRST NATIONAL COMMUNICATIONS NETWORK, INC.
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TELEPHONE MARKETING NETWORK
MASTER AGREEMENT
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Agreement made this 18th day of April 2001 between FIRST NATIONAL COMMUNICATIONS
Network, Inc. ("FNC") with principal offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Intercallnet, Inc. ("NETWORK SITE") with
principal offices at ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
(collectively referred to as the "parties").
WHEREAS FNC is interested in the continued existence of a Telephone
Marketing relationship with NETWORK SITE for the processing of telemarketing
calls at a NETWORK SITE production facility for an assigned FNC client
("Client"); and
WHEREAS NETWORK SITE, an established telemarketing business, is
interested in providing the necessary facilities, equipment, maintenance,
service and personnel for each assigned FNC Client campaign.
NOW THEREFORE, in consideration of the mutual promises and obligations
of FNC and NETWORK SITE, as set forth herein, and other good and valuable
consideration, the sufficiency of which is acknowledged by the execution of this
Agreement, the parties agree as follows:
1. As part of the FNC Telephone Marketing Network, NETWORK SITE shall provide
facilities, equipment, maintenance, service and personnel required to establish,
maintain and operate the Telephone Marketing location, all in accordance with
the day to day operating procedures, telemarketing techniques, training, quality
assurance, and control measures and such other specific instructions
(collectively the "Operating Procedures") as established by FNC, in an
attachment to this Agreement accepted by NETWORK SITE . These Operating
Procedures may from time to time be modified in writing by FNC, and accepted by
NETWORK SITE and NETWORK SITE shall comply with such updated and/or modified
Operating Procedures. The Operating Procedures shall be reasonable in nature and
shall be used exclusively for the performance of this Agreement.
2. FNC will provide records with phone numbers to NETWORK SITE in an agreed upon
format as specified in each project-specific attachment ("Project Attachment").
This Master Agreement will be modified by executed Project Attachments, which
will be a part of this Agreement. FNC will also provide approved script/order
forms and report formats to be used exclusively for each program. NETWORK SITE
will not make any changes to the materials or scripts without the consent of
FNC. At the termination of a specific Client campaign, NETWORK SITE must return
all prospect name lists, completed call records and Client-provided materials
and all copies of material relating to the specified program within 48 hours, by
delivery service of FNC's choice to FNC at FNC's expense provided NETWORK SITE
has been paid in full for all work performed under this Agreement.
3. NETWORK SITE acknowledges FNC's responsibility to assure maximum program
performance for each Client campaign. To that end, NETWORK SITE shall use its
commercially reasonable efforts to:
A. Provide feedback and consult with FNC on ways to improve the script
and other calling materials;
B. Manage the list and call traffic to ensure maximum performance from
each phone agent;
C. Provide FNC with the names and/or identification numbers of all
phone agents and supervisors working on FNC programs prior to the start
of each program and as changes occur;
D. Respect FNC's criteria and promptly adhere to FNC's instructions
concerning the selection and removal of phone agents placing calls on
any FNC program;
E. Allow FNC to conduct training of phone agents and supervisors on the
Client's behalf;
F. Provide sufficient supervision and monitoring daily so that each
agent on each FNC program is silent monitored once per shift;
G. If FNC Client demands stoppage, FNC will provide NETWORK SITE 24
hour prior written notice to stop production on any assigned Client
campaign;
H. Notify and receive FNC approval of each phone agent, assigned to a
FNC program, when such phone agent has no prior calling experience;
I. Not subcontract the production of any FNC program.
4. NETWORK SITE will provide FNC with complete daily call report information by
8 AM PST each business day in the format requested by FNC and shall provide
weekly deliveries of all non-order written reports, call records or other
program specific information. NETWORK SITE shall not contact the Client at any
time, without the prior written approval of FNC.
5. FNC MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR GUARANTEES AS TO THE
VOLUME OF TELEMARKETING SERVICES THAT FNC MAY REQUIRE UNDER THIS AGREEMENT.
NETWORK SITE MAKES NO EXPRESS OR IMPLIED GUARANTEE AS TO THE RESULTS OF ITS
EFFORTS UNDER THIS AGREEMENT OR THE SUCCESS OF ANY CAMPAIGN.
6. NETWORK SITE will provide remote monitoring of all phone agents assigned to
FNC program pursuant to the following conditions:
A. FNC may monitor at its discretion any agent on any FNC program
during any scheduled monitoring session.
B. FNC shall have the right to schedule regular monitoring
sessions on a schedule that is mutually agreed upon with the
NETWORK SITE. NETWORK SITE shall not cancel scheduled sessions
for any reason. FNC's scheduled sessions shall have priority
over conflicts in the monitoring schedule due to equipment
limitations or other NETWORK programs. Should NETWORK SITE
have an equipment failure that results in a cancellation of
scheduled monitoring sessions more than three times during the
Term of this Agreement, FNC shall have the right to cancel
this Agreement.
C. Appropriate floor supervisor or other decision-making
individual at NETWORK SITE production facility shall be
available to discuss and implement proposed changes during
each scheduled monitoring session.
7. The Confidentiality Agreement between FNC and NETWORK SITE will become part
of this Agreement as Addendum A. NETWORK SITE will safeguard and hold as
confidential its relationship with FNC, this Agreement and all information
relating to Client programs including but not limited to, all name lists,
reports, response data, scripts, direct mail materials, and any other FNC or
Client written materials, strategies and marketing plans which could reasonably
be expected to be confidential information ("Confidential Information"). NETWORK
SITE will use the Confidential Information for the purposes contemplated by this
Agreement and will not disclose, copy or make such Confidential Information
available to any third party, individual, organization or business without the
prior written consent of FNC. NETWORK SITE shall require each phone agent and/or
employee working on FNC campaigns to adhere to the terms of this paragraph by a
written agreement. NETWORK SITE will maintain such phone agent agreements and
shall provide copies of the agreements to FNC upon request. The obligations
created hereby as to the Confidential Information shall not extend to any of
such data, samples, materials and/or other information which (i) can be shown by
NETWORK SITE to have been in its possession prior to the time same was disclosed
or made available to NETWORK SITE; or (ii) is now, or hereafter becomes,
information in the public domain through no act or failure to act by NETWORK
SITE or by any of its employees, or (iii) can be shown by NETWORK SITE to have
been received on a nonconfidential basis from a third party.
8. NETWORK SITE will indemnify, hold harmless and defend FNC against any claim,
loss or judgement (including reasonable attorney fees) which FNC may sustain as
a result of any claim, suit or proceedings made or brought against FNC based
upon any acts of gross negligence by NETWORK SITE and/or NETWORK SITE's phone
agents, or any unauthorized assertions by NETWORK SITE and/or NETWORK SITE's
phone agents on behalf of FNC or FNC's Client, or any illegal practices or
misuse of Confidential Information by NETWORK SITE or NETWORK SITE's phone
agents. FNC will indemnify, hold harmless and defend NETWORK SITE against any
claim, loss or judgement including (reasonable attorneys' fees) which NETWORK
SITE may sustain as a result of any claim, suit or proceedings made or brought
against NETWORK SITE based upon any acts of gross negligence by FNC, or NETWORK
SITE's use of any Client approved script provided such use is in accordance with
FNC instructions. In no event will either party be liable for special,
incidental, or consequential damages, including lost profits, regardless of
whether such party was advised of the possibility thereof.
9. NETWORK SITE warrants that fees presented in each Project Attachment shall
represent the only fees that NETWORK SITE will charge FNC for telemarketing and
attendant support services. Any changes in price or fee structure must be
approved by FNC in writing.
10. It is specifically understood that FNC is a project management company and
is to receive payment for services directly from the CLIENT. FNC shall remit to
NETWORK SITE payments of amounts due for services described in the Program
Attachment within 3 days of receipt of Client's corresponding payment. Payment
from the Client is an express condition precedent to FNC payments to NETWORK
SITE. In addition, FNC agrees that in the event of non-payment by CLIENT, FNC
shall, if requested, assign all rights, related to NETWORK SITE, it may have
against said CLIENT to NETWORK SITE in a manner and on terms determined by FNC.
In the event of such an assignment, any amount obtained by NETWORK SITE in
excess of the amount owed by FNC to NETWORK SITE, plus costs incurred to collect
from CLIENT, including reasonable attorney's fees shall be remitted to FNC.
Should any item on an invoice be disputed, the undisputed amount shall be paid
while the disputed items are being resolved. FNC shall incur no finance or late
charges. In the event NETWORK SITE makes any demand directly on Client, it
waives and releases any claim against FNC.
11. The parties do not have and are not to be deemed to have the relationship of
principal/agent/joint venture, employer-employee, or partnership. Except as
expressly provided for in this Agreement, neither party is authorized to act for
the other in any way. The parties are acting only as independent contractors.
12. Neither party shall be liable for any delay or failure in performance under
this Agreement or for any interruption of services rendered hereunder, which
result directly or indirectly from acts of God, civil or military authority,
acts of public enemies, war, accidents, fires, earthquakes, the elements or any
other cause beyond the direct and reasonable control of the parties to this
Agreement.
13. NETWORK SITE agrees not to conduct telemarketing programs for any Client of
FNC for which NETWORK SITE has performed services on behalf of FNC, for a period
of one year from the termination of this Agreement, without FNC's written
consent, which shall not be unreasonably withheld. Should NETWORK SITE conduct
telemarketing on behalf of Client within one year of the termination of this
Agreement without FNC's consent, FNC will receive a commission of 20 percent of
the gross sales within one week of NETWORK SITE's receipt of each payment from
Client, unless commission is waived or altered by FNC, in writing.
14. This Agreement supersedes any previous written or oral Agreement between FNC
and NETWORK SITE. Any previously executed program-specific attachments for
current Client campaigns will become Program Attachments to this Agreement.
15. All notices, demands or communications which are required under this
Agreement, shall be transferred via United States and shall be sent to the
address listed below or such other address as either party may designate in
writing from time to time:
If to FNC: First National Communications Network, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
If to NETWORK SITE: Intercallnet, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
16. The parties agree that any controversy or claim arising out of or relating
to this Agreement, or any dispute arising out of the interpretation or
application of this Agreement, which the parties hereto are unable to resolve,
first by mandatory mediation with a mediator selected by the parties. If the
dispute is not resolved by mediation, the parties agree that the next exclusive
remedy would be non-binding arbitration. If the parties cannot agree upon an
arbitrator, then each party shall choose its own independent representative and
those independent representatives shall, in turn, choose the single arbitrator
within fifteen days of the date of the selection of the first independent
representative. The cost of mediation or arbitration shall be divided equally
between the parties. If the parties cannot resolve the matter within 45 days
after the non-binding arbitration, the final remedy would be litigation. In the
case of any mediation, arbitration and/or litigation entered into by the parties
pursuant to the foregoing provisions, the parties agree that any such mediation,
arbitration and/or litigation brought by FNC shall be conducted exclusively in
the appropriate forum in the State of Florida and any such mediation,
arbitration and/or litigation brought by NETWORK SITE shall be conducted
exclusively in the appropriate forum in the State of California. For that
purpose FNC and NETWORK SITE each hereby submit to the jurisdiction of the
Federal Courts in the States of Florida and California for all purposes relating
to this Agreement, and agree to service if processed by registered mail to the
address given in Section 15.
17. Except as otherwise provided by this Agreement, this Agreement shall
continue for a period of three (3) years from the date identified in the
signature section and shall be automatically renewed for additional periods of
one (1) year unless terminated by either party, provided the party notifies the
other party, in writing, of its intent to terminate at least 120 days prior to
the anniversary date of this Agreement.
18. Failure to comply with any material term or condition of this Agreement for
a period of thirty (30) days following written notice of noncompliance may
result in immediate termination of this Agreement at the discretion of the party
providing notice of such noncompliance.
19. The rights, remedies, and benefits provided by this Agreement shall be
cumulative, not exclusive. Any waiver of the right to object to noncompliance of
this Agreement shall not be construed as a waiver of further violations. This
Agreement constitutes the entire and complete Agreement between the parties and
shall supersede all prior correspondence, discussions, agreements and
understandings, unless mutually agreed in writing subsequent to the execution of
this Agreement.
20. Any sales or use, employment tax, workers compensation, insurance or other
related expense which may be due and owing as a result of the use of the
facilities, equipment, maintenance, service and personnel at NETWORK SITE's
facility, shall be the sole responsibility of NETWORK SITE.
21. AUTHORIZATION. The parties signing this Agreement individually represent,
warrant and guarantee that the entities for which they are signing this
Agreement have taken all steps necessary and proper to authorize this Agreement
and the execution thereof by the parties signing for them.
For NETWORK SITE: Company Name Intercallnet, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ April 18, 2001
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Signed Date
Name &Title ▇▇▇▇ ▇▇▇▇▇▇▇, COO
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For: First National Communications Network, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ April 18, 2001
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▇▇▇▇▇▇ ▇▇▇▇▇ Date
Senior Vice President
