<PAGE>
Exhibit 10.12
PORTAL AGREEMENT
----------------
This Return Assured Portal Agreement (this "Agreement") is made as of the 27th
day of September, 2000 by and between
Return Assured, Inc.
1901 Avenue of the Stars, Suite 1710
Los Angeles, CA 90067
("Return Assured")
and
eBrick, Inc.
306 W 38th Street, Suite 1600
New York, NY. 60641
("the Merchant")
W I T N E S S E T H :
WHEREAS, Return Assured is in the business of providing a purchase
guarantee to retail purchasers of goods over the Internet from merchants who
subscribe to Return Assured's service for a fee (the Return Assured Program);
WHEREAS, eBrick is in the business of operating an Internet portal
directed to consumers in the USA with the URL of www.ebrick.com; and
WHEREAS, eBrick and Return Assured desire to enter into an agreement
whereby eBrick will co-market and sell Return Assured's services and program to
Internet retailers in USA, and certain other countries in exchange for a share
of Return Assured's fees earned from the Internet retailers obtained by eBrick.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows.
ARTICLE 1
ENGAGEMENT OF SERVICES
1.1_ Pursuant to the terms and conditions set forth in this
Agreement, Return Assured hereby engages eBrick, and eBrick
hereby accepts said engagement as Return Assured's
non-exclusive sales representative for the solicitation and
sale of the
<PAGE>
Return Assured Program to their partnered merchants.
1.2_ In connection with eBrick's marketing and sale of the Return
Assured Program, eBrick agrees to utilize only the sales
materials, information and documents provided by Return
Assured, and to make only those representations regarding the
Return Assured Program as are provided and authorized by
Return Assured. Furthermore, eBrick agrees to recommend the
Return Assured Program to its merchants as the exclusive
return policy assurance program and to post the Return Assured
trademark/logo on its website in a form and manner reasonably
satisfactory to Return Assured.
1.3_ Return Assured and eBrick agree to mutually develop and
implement a co-marketing plan for the performance of eBrick's
duties hereunder prior to engaging in any sales activities.
1.4_ The procedure for eBrick to consummate a sale of the Return
Assured Program is to first provide the prospective merchant
with the information package provided by Return Assured. This
is important since the package contains a detailed description
of the Return Assured Program as well as a legal disclaimer
that Return Assured is in no way acting as a guarantor or
insurer of the quality, performance, merchantability, fitness
for any particular purpose, design or standards of the
products/services sold by such merchants. Once a merchant
expresses a desire to subscribe to the Return Assured Program,
eBrick shall provide a Merchant Agreement in the form annexed
hereto as Exhibit A (the Merchant Agreement) to the
prospective Merchant with instructions for the merchant to
review same and, if applicable, to execute and deliver the
Merchant Agreement to Return Assured along with any fees due
under the Merchant Agreement. Return Assured will then
countersign the Merchant Agreement and return a copy to both
the Merchant and eBrick.
ARTICLE 2
COMPENSATION
2.1 In consideration for eBrick's services hereunder, and subject
to Article 6.2 below, Return Assured shall pay to eBrick seven
and one half percent (7.5%) of all gross fees received by
Return Assured under the Merchant Agreements procured by
eBrick during the Term hereof.
2.2 Payment of all amounts hereunder shall be made within
forty-five (45) days following the end of each calendar
quarter and shall be for the amounts due and accruing during
the preceding calendar quarter.
2.3 Payments to eBrick hereunder shall be accompanied by a
statement, certified to be true and accurate by an officer of
Return Assured, setting for the calculation of all
<PAGE>
amounts due to eBrick hereunder.
2.4 Payments to eBrick hereunder shall be made in United States
Dollars and, if applicable, shall be made using the exchange
rates in effect for any foreign currencies on the date payment
is due to be made.
ARTICLE 3
SCOPE OF SERVICES
3.1 Scope.
(a) The scope of the engagement hereunder is limited to marketing
and soliciting the sale of the Return Assured Program to
prospective Internet merchants in the Territory. It does not
include the right to sell or solicit any sales beyond the
Territory or to make sales to the general public or to market
or sell any of Return Assured's products/services other than
the Return Assured Program as set forth in the Merchant
Agreement.
(b) eBrick represents and warrants that it shall make
representations regarding the Return Assured Program that are
true, accurate and in accordance with the product information
provided to it by Return Assured.
ARTICLE 4
INDEMNIFICATION, NO PARTNERSHIP, REPRESENTATIONS/WARRANTIES
4.1 Indemnifications. Each party hereby indemnifies and holds
harmless the other, their officers, directors, employees,
agents, heirs and successors from and against any and all
loss, damage, expense, liability (including reasonable
attorney's fees) which arise as the result of the breach of
any provision or warranty contained herein.
4.2 No Partnership or Authority. Neither party shall have the
right, power or authority to contract in the name of the
other, or to otherwise bind or pledge the assets of the other.
This Agreement does not create a partnership, joint venture or
franchise agreement.
4.3. Representations and Warranties of Return Assured. Return
Assured hereby represents and warrants that (i) it is a Nevada
corporation validly existing and in good standing; (ii) that
it has the power and all necessary authorization and board
resolutions to enter into and perform this Agreement; and
(iii) that by entering into this Agreement and performing its
terms, it will not be violating or breaching any (x) third
parties rights or agreements; (y) any court order, judgment or
decree; or (z) any applicable law, statute, rule, regulation,
ordinance or otherwise of any jurisdiction.
<PAGE>
4.4 Representations and Warranties of eBrick. eBrick hereby
represents and warrants that (i) it is a New York corporation
validly existing and in good standing in its jurisdiction;
(ii) that it has the power and all necessary authorization and
board resolutions to enter into and perform this Agreement;
and (iii) that by entering into this Agreement and performing
its terms, it will not be violating or breaching any (x) third
parties rights or agreements; (y) any court order, judgment or
decree; or (z) any applicable law, statute, rule, regulation,
ordinance or otherwise of any jurisdiction.
ARTICLE 5
DEFAULT
5.1 Default. In the event either party defaults in any of its
obligations under this Agreement, the non-defaulting party
shall send written notice to the defaulting party setting for
the nature of the alleged default and the provision of this
Agreement allegedly violated. In the event the defaulting
party has not cured the default within thirty (30) days from
receipt of notice of default, then the non-defaulting party
may pursue any remedies at law or equity it deems appropriate.
In this regard, should eBrick permit an uncured default to
exist, Return Assured may, among other things, terminate this
Agreement. Both parties hereby acknowledge and agree that a
breach of this Agreement will likely result in irreparable
harm to the other and, as such, agrees to the issuance of
injunctive relief (including preliminary injunction and
temporary restraining orders) to prevent further breaches
and/or damages.
ARTICLE 6
TERM
6.1 Term: Subject to Article 5.1, this Agreement shall endure for
a period of five (5) years from the date first written above.
At the expiration of said Term, this Agreement shall
automatically renew for one additional five (5) year term
unless within sixty (60) days prior to the end of the original
term, either party sends written notice to the other of its
intention not to renew. In the event notice of non-renewal is
sent or this Agreement is sooner terminated as provided
herein, eBrick shall immediately discontinuing soliciting,
selling, brokering or otherwise acting on behalf of Return
Assured and the Return Assured Program in any manner
whatsoever. In the event eBrick continues representing the
Return Assured Program after the expiration of the Term with
the knowledge and consent of Return Assured, it shall not be
construed as a renewal of this Agreement, but shall be
considered a day to day contract under the same remaining
terms and conditions herein. Notwithstanding anything herein
to the contrary, in the event eBrick does not maintain at
least 10 active, fee paying Merchant Agreements during any
month during the Term, Return Assured shall have the right to
terminate this Agreement on twenty (20) days written notice to
eBrick.
<PAGE>
6.2 For the six (6) month period following the expiration or
sooner termination of this Agreement, Return Assured shall
continue to pay eBrick its consideration set forth in Article
2 above on all Merchant Agreements in effect during said time
period. After said six(6) month period, Return Assured will
not have any obligation to pay eBrick any compensation
whatsoever on Merchant Agreements (or any extensions or
renewals thereof) procured by eBrick during the Term hereof.
ARTICLE 7
MISCELLANEOUS
7.1 Force Majeure: It is understood and agreed that in the event
of an act of the government, war, fire, flood or other natural
disaster, or labor or manufacturing strikes which prevent the
performance of this Agreement, such nonperformance will not be
considered a breach of this Agreement, and such nonperformance
shall be excused while, but not longer than, the conditions
described herein prevail. The period of Force Majeure shall
not exceed eighteen (18) months.
7.2 Notices: All notices, whenever required in this Agreement,
will be in writing and sent by certified mail, return receipt
requested, or such other method as permits the verification of
delivery. Notices will be deemed to have been given when
mailed. A copy of all notices to Return Assured shall be sent
via regular mail to: Steven M. Kaplan, Esq., Kaplan &
Gottbetter, 630 Third Avenue, New York, NY 10017.
7.3 Controlling Law: This Agreement shall be construed in
accordance with the laws of the State of New York, United
States of America and jurisdiction over the parties and
subject matter over any controversy arising hereunder shall be
in the Courts of the State and County of New York, County or
the Federal courts therein. Both parties hereby irrevocably
consent to said jurisdiction and venue.
7.4 Assignment: This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement,
nor any of the rights, interests or obligations hereunder
shall be assigned by either party without the prior written
consent of the other party, and any attempts to do so without
the consent of the other party shall be void and of no effect.
7.5 Confidentiality. Both parties acknowledge that in the
performance of the terms of this Agreement, each party will
disclose to the other certain confidential and proprietary
information, including but not business plans and practices,
trade secrets, customer and employee files and lists, computer
software/hardware, and marketing/advertising/promotional plans
and practices. Each party agrees not to disclose, disseminate
or to utilize any of the other's Confidential Information
without the prior written consent of the other. Each party
acknowledges that any breach or threatened breach of the
provisions of this paragraph, or paragraph 1.5
<PAGE>
above will cause irreparable harm to the other and as a
result, each party is entitled to obtain preliminary,
temporary and permanent injunctive relief, in addition to all
other remedies and damages, in the event of a breach or
threatened breach thereof, without the need or obligation to
post any bond or undertaking, which requirement is hereby
waived.
7.6 Entire Agreement: This writing constitutes the entire
agreement and understanding between the parties. No other oral
or written agreements or representations exist or are being
relied upon by either party. Any modifications or additions
hereto must be made in writing and signed by both parties.
7.7 Other Miscellaneous: (a) The paragraph headings used herein
are for reference purposes only and do not effect the meaning
or interpretation of this Agreement. If any provisions of this
Agreement are for any reason declared to be invalid or
illegal, the remaining provisions shall not be affected
thereby.
(b) The failure of either party to enforce any or all of its
rights hereunder as they accrue shall not be deemed a waiver
of those rights, all of which are expressly reserved.
(c) This Agreement may be executed in more than one
counterpart, all of which shall be deemed to be originals.
(d) This Agreement shall not be binding unless a fully
executed counterpart has been delivered to all parties.
(e) In the event of a breach of any provision of this
Agreement, the non-breaching party shall be entitled to
recover, in addition to all other remedies and damages, all of
its reasonable attorney's fees and costs incurred in enforcing
its rights hereunder.
WHEREAS, the parties have set their hand and executed this Agreement of
five (5) pages with the intention of being fully bound hereby.
RETURN ASSURED, INC EBRICK, INC
By: By:
------------------------- -------------------------
