Marketing Alliance Agreement - Futuredontics Inc. and Attorneys.com Inc.
MARKETING ALLIANCE AGREEMENT
This marketing alliance agreement ("Agreement") is entered into as of
October 19, 2000, by and between Futuredontics, Inc., a California corporation
with its principal offices at 6060 Center Drive, 7th Floor, Los Angeles,
California 90045 ("Futuredontics") and Attorneys.com, Inc., a Florida
corporation with its principal office at 186 Attorneys.com Court, Lake Helen,
Florida 32744-0280 ("Attorneys").
Futuredontics operates a business in the dental industry, which
includes the operation of the 1-800-DENTIST(R) cooperative marketing program for
dentists. Futuredontics has developed substantial expertise in the operation of
direct response marketing programs for professionals, including, without
limitation, expertise in marketing and selling memberships in such programs to
professionals and in promoting such services to the public. Attorneys operates a
business in the legal industry, primarily publishing directories for bar
associations. Attorneys is in the process of launching a new marketing program
for lawyers, modeled closely on the business model established and developed by
Futuredontics. Therefore, Attorneys wishes to engage Futuredontics to provide
consultative services pursuant to the following terms and conditions, and
Futuredontics wishes to be so engaged.
NOW, THEREFORE, the Parties agree as follows ("Agreement"):
TERMS AND CONDITIONS
1 TERM. The Term of this Agreement is 1 year commencing on November 1,
2 DUTIES OF FUTUREDONTICS. Futuredontics will provide marketing and
selling advice to Attorneys, including, without limitation, advice on
the design and production of collateral marketing materials, sales
scripts, television, radio, print and other advertisements and
compensation programs for sales personnel. Futuredontics will provide
such services primarily at Futuredontics's own offices in Los Angeles,
California; provided, however, that Futuredontics will provide some
services at Attorneys' offices in Lake Helen, Florida as the parties
mutually agree is necessary for the effectuation of this Agreement. In
its sole discretion, Futuredontics will determine which of its
personnel will provide services under this Agreement. The Parties
anticipate that the amount of services provided by Futuredontics will
vary substantially from month to month, but agree that over the Term of
the Agreement, the average amount of services provided will be at least
25 person-hours per month. In addition, subject to the terms and
conditions specified in Section 6 below, Futuredontics will allow
Attorneys to state that Futuredontics operates the 1-800-DENTIST(R)
referral service in Attorneys' marketing materials in a format approved
by, and pursuant to the prior written consent of, Futuredontics.
Following expiration of the Term, Attorneys may continue to use the
pre-approved marketing materials for an additional 18 months.
3.1 SIGNING BONUS. Futuredontics will receive 50,000 shares of Attorneys'
unregistered, common stock (the "Shares") as a material inducement to
enter into this Agreement. The Shares will be issued subject to a
registration rights agreement , which will be negotiated by the Parties
in connection with a proposed merger or similar reorganization being
discussed by the Parties. In the event that the proposed merger or
reorganization does not occur, the Shares will not be subject to any
registration rights agreement. Attorneys agrees to deliver the Shares
to Futuredontics within 10 business days after this Agreement is fully
executed by the Parties.
3.2 FEE. Attorneys will compensate Futuredontics $10.00 per month for the
services rendered pursuant to this Agreement.
3.3 EXPENSES. Except for payroll to Futuredontics' personnel and routine
office expenses including, without limitation, faxes and copies,
Attorneys will pay all costs arising from the performance of this
Agreement. Such expenses will include, without limitation, delivery
expenses and travel and lodging expenses incurred when Futuredontics
personnel travel to Attorneys' offices; provided, however, that
Futuredontics will apprise Attorneys of estimated travel and lodging
expenses before they are incurred. To the extent reasonably possible,
Attorneys will pay all expenses directly to vendors; provided, however,
that when necessary, Futuredontics will advance such expenses and
submit invoices to Attorneys for reimbursement accompanied by
supporting documentation. Attorneys will reimburse Futuredontics for
such expenses within 10 days after receipt of invoices and
4 NO RIGHT TO ASSIGN. Neither Party may assign this Agreement without the
prior written consent of the other, which consent shall be given solely
in the discretion of the Party from whom consent is sought.
5 PROPRIETARY COVENANTS.
5.1 COVENANT NOT TO USE OR DISCLOSE TRADE SECRETS. Attorneys agrees that in
the course of performing this Agreement, Futuredontics may reveal
confidential information and trade secrets to Attorneys. During the
Term of this Agreement and after the termination of Futuredontics's
Engagement hereunder, Attorneys shall regard and preserve as
confidential Confidential Information as defined in paragraph 5.1.1
below pertaining to Futuredontics and its affiliates that has been or
may be obtained by Attorneys in any way by reason of Futuredontics's
engagement by Attorneys. Attorneys shall not, without the prior and
specific written consent of Futuredontics, (i) use, publicize, release
or disclose to others, either during or after the Term, any trade
secrets or other Confidential Information or (ii) take or retain or
copy any of Futuredontics specifications, drawings, reproductions,
customer lists, or other documents or things. This provision shall not
apply to any Futuredontics information that has been voluntarily
disclosed to the public by Futuredontics, independently developed and
disclosed by others, or otherwise enters the public domain through
lawful means. The foregoing shall not be construed to (A) limit
Attorneys' right to use Confidential Information in the operation of
their 800-Attorneys telephone-based attorney referral service; and (B)
Disclose the Confidential Information if required to do so by a court
of competent jurisdiction or in response to a subpoena; provided that
in such a case, Attorneys will give Futuredontics 10 days written
notice of the order of the court or subpoena that requires such
disclosure, to the extent that giving such notice is practical under
5.1.1 DEFINITION. For purposes of this Agreement, the term "Confidential
Information" shall mean: (A) all and any trade secrets of
Futuredontics, including without limitation, information encompassed in
all drawings, designs, plans, proposals, marketing and sales plans,
customer lists, financial information, costs, pricing information; and
(B) all concepts or ideas, in or reasonably related to the business of
Futuredontics that have not previously been publicly released by duly
authorized representatives of Futuredontics.
5.2 UNFAIR COMPETITION. During the Term, and for a period of one year
thereafter ("Non-competition Period"), neither Party shall compete,
promote, participate in or engage in any activity or other business,
either directly or indirectly, whether as a partner, contractor,
shareholder, or otherwise in competition with the business engaged in
by the other Party at the time this Agreement is executed. Thus,
Futuredontics agrees to forbear from engaging in the attorney referral
service and the bar association directory service and Attorneys agrees
to forbear from engaging in the dentist referral service during the
Non-competition Period. Each Party agrees to disclose to the other
Party any and all competitive plans which the disclosing Party may have
under consideration whether or not the disclosing Party intends to act
5.3 COVENANT NOT TO DIVERT. So long as Futuredontics is engaged hereunder
and for one year thereafter, the Parties shall not directly or
indirectly solicit, induce, attempt to induce or endeavor to entice
away any employee of the other Party, whether for their own account or
for the account of a third-party.
6.1 WARRANTY OF ATTORNEYS. With regard to the name and service mark
"1-800-DENTIST(R)" (the "Mark"), Attorneys acknowledges that
Futuredontics holds a license to use the Mark with respect to the
operation of a cooperative advertising service for dentists under
license from Applied Anagramics, Inc. Attorneys further acknowledges
that the unauthorized use of the Mark will cause irreparable damage to
Futuredontics, which could include the loss of the license. Attorneys
therefore warrants that it will not use the Mark nor authorize others
to use the Mark without the prior written consent of Futuredontics.
Because of the irreparable nature of the harm that may arise from a
breach of the warranty contained in this paragraph, Attorneys agrees
that, in addition to all other remedies Futuredontics may have at law
under this Agreement, Futuredontics will be entitled to obtain
injunctive relief to restrain a breach or threatened breach of this
6.2 WARRANTY OF FUTUREDONTICS. With regard to the name and service mark
"1-800Attorneys(R)" and similar names and marks (the "Attorneys Mark"),
Futuredontics acknowledges that Attorneys owns all right, title and
interest in and to the Attorneys Mark and that the unauthorized use of
the Attorneys Mark will cause irreparable damage to Attorneys.
Futuredontics therefore warrants that it will not use the Attorneys
Mark nor authorize others to use the Attorneys Mark without the prior
written consent of Attorneys. Because of the irreparable nature of the
harm that may arise from a breach of the warranty contained in this
paragraph, Futuredontics agrees that, in addition to all other remedies
Attorneys may have at law under this Agreement, Attorneys will be
entitled to obtain injunctive relief to restrain a breach or threatened
breach of this warranty.
6.3 INDEMNIFICATIONS BY THE PARTIES. Each Party agrees to indemnify, hold
harmless and defend the other against and from claims arising out of
any breach or alleged breach of the indemnifying Party's obligations
under Section 6.
7 INDEPENDENT CONTRACTOR. Futuredontics acknowledges and agrees that its
relationship to Attorneys is exclusively that of an independent
contractor, and that Attorneys' obligations to Futuredontics are
exclusively contractual in nature.
8 NOTICES. All notices, statements and other documents that any party is
required or desires to give to the other party hereunder shall be given
in writing and shall be served in person, by express mail, by certified
mail, by overnight delivery or by facsimile at the respective addresses
of the parties as set forth below, or at such other addresses as may be
designated in writing by such party in accordance with the terms of
this Section 8.
IF TO FUTUREDONTICS: Futuredontics, Inc.
6060 Center Drive, 7th Floor
Los Angeles, California 90045
Attention: Susan Keenberg, Senior VP
IF TO ATTORNEYS: Attorneys.com, Inc.
186 Attorneys.com Court
Lake Helen, Florida 32744-0280
Attention: Peter S. Balise, President
Delivery shall be deemed conclusively made (i) at the time of service, if
personally served, (ii) when deposited in the United States mail, properly
addressed and postage prepaid, if delivered by express mail or certified
mail, (iii) upon deposit with the private overnight deliverer, if served
by overnight delivery, and (iv) at the time of electronic transmission (as
confirmed in writing), provided a copy is mailed within twenty-four (24)
hours after such transmission. The time to respond to any notice shall run
from the time the notice is actually delivered to the person to whom the
notice is addressed.
9 GENERAL TERMS AND CONDITIONS.
9.1 APPLICABLE LAW AND JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of California
(without regard to conflicts of laws principles), and the parties
hereby consent to the jurisdiction of the courts of competent
jurisdiction in Los Angeles County, California over all matters
relating to this Agreement.
9.2 BINDING EFFECT. All the terms and conditions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
9.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one agreement.
9.4 DESCRIPTIVE HEADINGS. The paragraph and section headings in this
Agreement are for convenience only and shall not control or affect the
meaning or construction of any provision of this Agreement.
9.5 ENFORCEABILITY; SEVERABILITY. If any provision of this Agreement shall
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 the 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 may be.
9.6 FAXED SIGNATURES. The signature on this Agreement of any party that is
faxed to the other party, shall be deemed an original signature for the
purpose of enforcement of this Agreement.
9.7 INTEGRATION; MODIFICATION. This Agreement constitutes the entire
understanding and agreement between the Parties regarding its
subject-matter and supersedes all prior negotiations and agreements,
whether oral or written, between them with respect to its
subject-matter. This Agreement may not be modified except by a written
agreement signed by the Parties.
9.8 INTEREST AND COSTS; ATTORNEYS' FEES. In the event of any legal
proceeding, litigation or alternative dispute resolution between the
parties respecting or arising out of this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and
other costs in connection therewith, including, without limitation, any
attorneys' fees incurred after a judgment has been entered by a court
of competent jurisdiction.
9.9 WAIVER. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any
prior or subsequent breach; provided, however, that either party to
this Agreement may waive any obligation owed to such party, if such
waiver is in writing signed by an authorized signer.
IN WITNESS WHEREOF, the Parties have executed this Agreement.
By: /s/ Alfred J. Joyal 10/19/00
Alfred J. Joyal, Chairman Date
By: /s/ Peter S. Balise 10/19/00
Peter S. Balise, President Date