Campaign Management Services Agreement - Frederiksen Television Inc. and And Justice for All Inc.
CAMPAIGN MANAGEMENT SERVICES AGREEMENT
This Agreement, dated the 19th day of March, 1999, is made between
Frederiksen Television, Inc., a Virginia corporation, (hereinafter referred to
as 'FTV') and And Justice For All, Inc., a Florida corporation (hereinafter
referred to as 'Client').
The parties wish to set forth herein the terms pursuant to which FTV
will perform certain management services for Client. Accordingly, in
consideration of the mutual promises and undertakings set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
1. ENGAGEMENT AND DUTIES OF FTV. Subject to the terms and conditions of
this Agreement, Client engages FTV to provide the following services in support
of Client's direct response marketing campaigns. Client may elect to have FTV
provide one or more or the services set forth below. The selection of any one
service phase below does not obligate Client to any other of the following
services set forth herein.
(a) PHASE 1 SERVICES.
(i) Evaluate the infrastructure support required and
recommend an appropriate inbound telemarketing and fulfillment structure;
(ii) Following approval by Client of the proposed
inbound telemarketing and fulfillment structure, FTV will solicit and evaluate
bids from appropriate inbound telemarketing and fulfillment companies; and
(iii) Recommend to Client a service provider for
inbound telemarketing and fulfillment services.
(b) PHASE 2 SERVICES.
(i) Following approval by Client of the inbound
telemarketing and fulfillment service providers, FTV will work with those
parties to implement the approved supporting infrastructure and communication
(ii) Arrange for the inbound telemarketing scripts.
Client shall have final approval for all telemarketing scripts and all marketing
materials prior to use;
(iii) Arrange for order fulfillment; and
(iv) Arrange for the electronic download of orders
and other information to Client on a regular basis.
(c) PHASE 3 SERVICES. Following the set-up of the
telemarketing and fulfillment support and the commencement of the media airings,
FTV will provide on-going management services of these support functions. These
services will include routine contact with
the inbound telemarketing and fulfillment centers as well as Client to evaluate
the results of time marketing efforts and address operational issues as they may
arise. Without limiting the scope of FTV's services hereunder, such
administrative and management actions include, but are not limited to:
(i) Day-to-day management of inbound telemarketing
services, including the writing of appropriate inbound telemarketing script(s).
Client shall have final approval for all telemarketing scripts and all marketing
materials prior to use;
(ii) Coordinate the fulfillment of consumer orders
with the appropriate service providers;
(iii) Coordinate the processing of credit cards and
checks orders from and refunds to consumers.
(iv) Coordinate the reporting of orders, customer
names and addresses, and other information to Client on a regular basis;
(v) Analyze operational information for trends,
profitability, etc. and make recommend appropriate actions or modifications to
the project based on the results of such analyses; and
(vi) Coordinate customer service for products sold to
(vii) Address operational issues as they may arise.
2. LIMITS ON FTV AUTHORITY. FTV shall have no authority to:
(a) Perform any act in violation of any applicable law or
(b) Make, execute, or deliver any assignment for the benefit
of creditors, or any bond, confession of judgment, guarantee, indemnity bond or
surety bond, except for bonds delivered in the ordinary course of business or
bonds delivered in connection with disputed claims by or against Client or its
assets, with the written advice of counsel to Client, without the prior written
consent of a majority of Client's shareholders;
(c) Borrow from Client; or
(d) On behalf of Client, become a surety, guarantor or
accommodation party to any obligation, except for the deposit of items for
collection in the ordinary course of business.
3. INTELLECTUAL PROPERTY RIGHTS / PRODUCT OWNERSHIP. Any and all audio
or video productions of marketing materials (regardless of the technique or
format used) created, edited, marketed or produced in accordance with this
Agreement and all rights in connection therewith shall be the exclusive property
of the Client. Client owns all said property and rights thereto and has the sole
and exclusive right to copyright protection of the materials. Any published work
performed in accordance with this Agreement shall be considered 'work for hire'
and shall be exclusive property of Client. Nothing in this Agreement shall be
construed to confer or transfer any intellectual property rights to FTV.
4. TERM OF AGREEMENT. This Agreement is effective upon execution by
both parties and will continue in full force and effect until terminated by
either party upon thirty (30) day written notice to the other. Client shall
remain financially obligated for services and costs through the effective date
of the termination.
5. COMPENSATION. FTV shall receive reimbursement for costs and expenses
reasonably incurred in performing its duties upon submission of documentation
supporting such expenses. In consideration of FTV's rendition of services to
Client and the performance and observance by FTV of its representations,
warranties, covenants and other obligations under this Agreement, Client shall
pay to FTV the compensation as set forth on the attached Schedule 1.
6. INDEPENDENT CONTRACTOR. FTV is not and shall not be an employee or
agent of Client for any purpose whatsoever. Rather, FTV is and shall at all
times remain an independent contractor. As such, FTV is solely responsible for
the time, manner and place of performance of its duties hereunder.
7. CONFIDENTIAL INFORMATION. Client and FTV acknowledge that in the
course of performing management services hereunder, FTV may review and become
privy to proprietary, confidential and competitively sensitive information
concerning Client's business, including, without limitation: (i) marketing and
promotional plans and strategies, (ii) information relating to contractual
arrangements with licensors, suppliers, producers performers and program
providers, (iv) information relating to the purchase and placement of media,
results of media deployment and media monitoring and tracking systems, (v)
information relating to rates, costs and facilities for telemarketing, order
processing fulfillment and credit card processing services, (vi) financial
information beyond that which is publicly reported by Client, and (vii) other
proprietary and competitively sensitive information (collectively, 'Confidential
Information'). FTV agrees to receive and hold all Confidential Information in
confidence and will not, without the prior written consent of Client, make any
use of Confidential Information for purposes unrelated to rendering the Services
or disclose any of the Confidential Information to any person or entity except
as may be necessary in ordinary course of rendering the Services. The duty of
confidentiality shall indefinitely survive the term of this Agreement.
8. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by the
laws of the Commonwealth of Virginia without regard to the conflict of law
(a) NOTICES. All notices, requests, instructions, consents and
other communications to be given pursuant to this Agreement shall be in writing
and shall be deemed received (i) on the same day if delivered in person, by
same-day courier or by telegraph, telex or facsimile transmission; (ii) on the
next day if delivered by overnight mail or courier, or (iii) on the day
indicated on the return receipt, or if there is no such receipt, on the third
(excluding Sundays) if delivered by certified or registered mail, postage
prepaid, to the party for whom intended to the following addresses:
If to Client: And Justice For All, Inc.
1500 N.W. 62nd Street, Suite 404
Ft. Lauderdale, FL 33309
Attention: Brett Merl, Chief Executive Officer
Fax: (954) 267-0401
If to FTV: Frederiksen Television
2735 Hartland Road, Suite 300
Falls Church, VA 22043
Attention: Lee Frederiksen, President
Fax: (703) 560-8292
Any party may, by written notice to the other in accordance with this Agreement,
change the address to which notices to such party are to be delivered.
(b) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings between them.
(c) WAIVER OF BREACH. Any waiver by any party of any breach or
default of any provision of this Agreement shall not constitute a waiver of such
provision or any subsequent breach or default hereof.
(d) ASSIGNABILITY. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns, provided, however, that FTV may not
assign this Agreement or any rights hereunder to any person or entity without
the prior written consent of Client, and any attempted assignment without such
consent shall be void.
(e) SEVERABILITY; REFORMATION. All of the provisions of this
Agreement are distinct and severable, and any provision of this Agreement that
is deemed inoperative, unenforceable, void or invalid shall not affect the
operation, enforceability, legality or validity of any other part of this
Agreement. In the event that any of the provisions of this Agreement should be
determined to be invalid or unenforceable, in whole or in part, such provision
shall be deemed to be modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement, as time case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law as if such
provision had been originally incorporated herein as so modified or restricted,
or as if such provision had not been originally incorporated herein, as the case
(f) HEADINGS. The headings of sections and subsections have
been included for convenience only and shall not be considered in interpreting
(g) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be original, and all of
which together shall constitute one and the same Agreement. A signature
delivered by facsimile shall be deemed to be an original signature and shall be
effective upon receipt thereof by the other party.
(h) The parties hereby agree that in the event a suit is
initiated with reference to this Agreement by any party, the prevailing party
shall be entitled to an award of reasonable attorneys fees and disbursements
incurred by such party in connection with and including but not limited to fees
and disbursements in administrative, regulatory, bankruptcy and appellate
In witness whereof, the parties have caused this Agreement to be duly
executed on the first date written above.
For Frederiksen Television, Inc. For And Justice For All, Inc.
By: /S/ THOMAS K. REDDING By: /S/ BRETT MERL
Name: THOMAS K. REDDING Name: BRETT MERL
Title: VICE PRESIDENT Title: CEO
MANAGEMENT SERVICES AGREEMENT
COMPENSATION TO FTV
Phase I Services $1,000.00. Payable at commencement of
services by FTV.
Phase 2 Services $1,500.00. Payable at commencement of
services by FTV.
Phase 3 Services These services are billed at the rate
of five percent (5%) of Net Sales. For
the purposes of this Agreement, Net
Sales shall mean the gross receipts
from sales of the product or service
less refunds and chargebacks. These are
billed monthly with payment due to FTV
within fifteen (15) days from date of
Monthly minimum for Phase 3 Services $1,000.00
Out-of pocket expenses These will be billed separately as
incurred. Examples include overnight
courier charges; travel costs; costs
associated with creating product
literature; and costs for shipping
product samples and other materials to