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Exhibit 10.14
PORTAL AGREEMENT
THIS AGREEMENT, made the 15th day of October, 2000 by and between RETURN
ASSURED, INC., a Nevada corporation with its principal place of business at 1901
Avenue of the Stars, Suite 1710, Los Angeles, CA 90067 (the "Company"); and
Liquor.com, Inc.
4205 W. Irving Park Road
Chicago, IL 60641
(the "Portal").
WHEREAS, the Company is engaged in the business of providing, on a fee basis to
be paid by the merchant, a refund guarantee program to electronic retail
purchasers of goods from subscribing merchants in accordance with each
merchant's refund policy (the "Return Assured Program"); and
WHEREAS, the Portal is in the business of operating a Direct Marketing Company
directed to consumers in the United States; and
WHEREAS, the Portal and the Company desire to enter into an agreement whereby
the Portal will co-market and sell the Company's services and program to their
Direct Marketer partners in exchange for a share of the Company's fees earned
from the retailers (merchants) obtained by the Portal.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, and for such 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,
the Company hereby engages the Portal, and the Portal hereby
accepts said engagement as the Company's non-exclusive sales
representative for the solicitation and sale of the Return Assured
Program to their partnered merchants.
1.2 In connection with the Portal's marketing and sale of the Return
Assured Program, the Portal agrees to utilize only the sales
materials, information and documents provided by the Company, and
to make only those representations regarding the Return Assured
Program as are provided and authorized by the Company.
Furthermore, the Portal agrees to recommend the Return Assured
Program to its merchants as the exclusive return policy assurance
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program and to post the Return Assured trademark/logo on its
website in a form and manner reasonably satisfactory to the
Company.
1.3 The Company and the Portal agree to mutually develop and implement
a co-marketing plan for the performance of the Portal's duties
hereunder prior to engaging in any sales activities.
1.4 The procedure for the Portal to consummate a sale of the Return
Assured Program is to first provide the prospective merchant with
the information package provided by the Company. This is important
since the package contains a detailed description of the Return
Assured Program as well as a legal disclaimer that the Company 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, the Portal 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 the Company along with any fees due
under the Merchant Agreement. The Company will then countersign
the Merchant Agreement and return a copy to both the Merchant and
the Portal.
ARTICLE 2 COMPENSATION
2.1 In consideration for the Portal's services hereunder, and subject
to Article 6.2 below, the Company shall pay to the Portal seven
and one half percent (7.5%) of all gross fees received by the
Company under the Merchant Agreements procured by the Portal
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 the Portal hereunder shall be accompanied by a
statement, certified to be true and accurate by an officer of the
Company, setting for the calculation of all amounts due to the
Portal hereunder.
2.4 Payments to the Portal 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.
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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 the
Company's products/services other than the Return
Assured Program as set forth in the Merchant Agreement.
(b) The Portal 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 the Company.
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 the Company. The Company 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.
4.4 Representations and Warranties of the Portal. The Portal hereby
represents and warrants that (i) it is a New York corporation
validly existing and in good standing in its
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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 the
Portal permit an uncured default to exist, the Company 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, the Portal shall immediately
discontinuing soliciting, selling, brokering or otherwise acting
on behalf of the Company and the Return Assured Program in any
manner whatsoever. In the event the Portal continues representing
the Return Assured Program after the expiration of the Term with
the knowledge and consent of the Company, 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 the Portal does not maintain at least 10
active, fee paying Merchant Agreements during any month during the
Term, the Company
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shall have the right to terminate this Agreement on twenty (20)
days written notice to the Portal.
6.2 For the six (6) month period following the expiration or sooner
termination of this Agreement, the Company shall continue to pay
the Portal its consideration set forth in Article 2 above on all
Merchant Agreements in effect during said time period. After said
six (6) month period, the Company will not have any obligation to
pay the Portal any compensation whatsoever on Merchant Agreements
(or any extensions or renewals thereof) procured by the Portal
during the Term hereof.
ARTICLE 7 MISCCELLANEOUS
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 and other communications required or
permitted by this Agreement to be given by a party to another
party shall be in writing, and until otherwise specified in a
written notice by the other party, shall be sent to the other
party by hand delivery, certified mail return receipt requested or
by commercial overnight courier at its notice addresses set forth
below:
If to the Company: Return Assured, Inc.
1901 Avenue of the Stars
Suite 1701
Los Angeles, CA
With a copy to: Steven M. Kaplan, Esq.
Kaplan Gottbetter & Levenson, LLP
630 Third Avenue
New York, NY 10017 USA
If to the Portal: Liquor.com, Inc.
4205 W. Irving Park Road
Chicago, IL 60641
Notices shall be deemed given as of the fifth business day following dispatch by
certified mail; or on the date of actual delivery by commercial messenger or
overnight carrier service.
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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 limited to 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 agreement 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
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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.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
RETURN ASSURED, INC. LIQUOR.COM, INC.
By: By:
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Print Name: Print Name:
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Title: Title:
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