Marketing Agreement
This Agreement made this 15th day of June, 2000 by and between Big Wheel
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Promotions, Inc. ("BWP") of 8300 Bissonnet, Suite 525, Houston, Texas 77074 and
Bentley Telcom ("Bentley Tel") of 4675 MacArthur Court, Suite 420, Newport
Beach, California 92660.
Whereas Bentley Tel is the owner, supplier and designer of the Bentley Tel
Global Links Card and the Bentley Tel Smart E-Card, providing services
including, but not limited to, money wire transfer, international and long
distance telephone calling, international E-commerce and purchasing,
international ATM debit card, and international Mastercard, throughout the
United States and the world;
And whereas BWP is a corporation doing business throughout the world that
specializes in marketing, promotions and advertising and desires to market and
prompts the Bentley Tel Global Links Card and the Bentley Tel Smart E-Card, and
all other products and/or services of Bentley Tel;
And whereas the Parties hereto, desire to enter into this agreement to set
forth the mutual understanding of the terms and conditions upon which their
relationship shall continue.
Now, therefore, this agreement witnesseth that in consideration of the
mutual promises and covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows:
1. (a) "Exclusive Territory" shall mean exclusive in Texas, California, New
Mexico, Florida, Louisiana, Arizona, Nevada, Mississippi, and
Missouri, Mexico and Canada.
(b) "Products" shall mean the Bentley Tel Global Links Card, Bentley Tel
Smart E-Card, Message Pilot and all services contained therein or
any goods or services sold by Bentley Tel to be marketed,
advertised and promoted by BWP.
(c) A mutually agreeable Marketing, Advertising, and Promotional budget
will be added to this Agreement as "Exhibit A".
(d) Mutually agreeable "Benchmarks" will be drawn up, approved in writing
and added to this Agreement as "Exhibit B".
2. Appointment
Bentley Tel hereby grants to BWP and BWP hereby accepts the right to act as
Bentley Tel's sole marketing, advertising and promotional agent for their
Products in BWP's exclusive territory. In consideration of the
exclusivity evidence by this appointment, BWP agrees to use its best
efforts to promote, market and Bentley Tel's products.
Big Wheel Promotions, Inc Marketing Agreement with BENTLEYTEL, Inc.
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3. Obligations of BWP
(a) BWP agrees to market. promote and advertise in every reasonable
manner, the product throughout the territory.
(b) BWP agrees that within 12 months after signing this agreement it shall
establish and maintain reasonable representation in respect of
the product throughout the exclusive territory.
(c) BWP will provide to Bentley Tel such form, reports, estimates and
other information regarding sales, customer visits, future
requirements, financial position, financial results and other matters
Bentley Tel may reasonably request from time to time.
(d) BWP agrees not to market, advertise,, sell, or resale, promote or
assist others in the marketing sales or promotion of products or
services that compete with the products or services of Bentley
Tel unless Bentley Tel approves in writing.
(e) BWP agrees to submit to Bentley Tel immediately any and all complaints
or comments from purchasers of products.
(f) BWP agrees to conduct its businesses in its own name and in a manner
that will reflect favorably at all times on Bentley Tel and the
services and the good name, good will and reputation of Bentley
Tel and avoid any deceptive, misleading or unethical practice or
advertising that might have a commercially detrimental effect on
Bentley Tel or their services.
(g) BWP agrees to refrain from holding itself out as an employee of
Bentley Tel
(h) BWP will refrain from making any representations with respect to their
services or others terms that are consistent with Bentley Tel's
written policies with respect to such matters.
(i) BWP will prepare all advertising, marketing, and promotioal budgets
for Bentley Tel products.
4. Obligations of Bentley Tel
(a) Bentley Tel agrees and undertakes that for the duration of this
agreement and subject to any terms hereof to the contrary, it will
not appoint another marketing and promotions agent, company or
individual, subsidiary or any related entities for the purpose of
marketing and promoting its product in BWP's "exclusive territory".
(b) Bentley Tel shall supply to BWP all products upon demand and as
necessary for BWP to meet its obligations to customers.
(c) Bentley Tel shall design and provide all marketing and/or promotional
materials in BWP's "exclusive territory".
(d) Bentley Tel agrees to bear the expenses of marketing, manufacturing
costs, printing expenses, promotional material, advertisement, etc.
packing and shipping to BWP or customer's location.
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(e) Bentley Tel agrees to inform BWP of any changes in material,
products, sales information. rate changes, etc.
(f) Bentley Tel agrees to inform BWP of any new marketing and promotional
agents it takes and all details of their relationship Bentley
Tel.
(g) Bentley Tel agrees that they will uphold a good name, good will and
reputation and avoid any deceptive, misleading or unethical
practice or advertising that might have a commercially
detrimental effect of BWP.
(h) Bentley Tel agrees to forward exclusive accounts' information (leads,
telephone calls, correspondence) to BWP that is outside to
"exclusive territory".
(i) Bentley Tel agrees that Bentley Tel and BWP will jointly sign off on
all marketing, advertising, and promotional budgets.
(j) Bentley Tel shall pay for all marketing, advertising, and promotions
in the form of a wire transfer or check to BWP.
5. Compensation & Expenses
(a) Bentley Tel acknowledges that BWP will be paid an agency fee
("Commission") for all gross marketing, advertising, and promotional
budgets for Bentley Tel products. The commission will either be
paid back to BWP by the media outlets or withheld by BWP and BWP
will pay media outlets the "net advertising cost".
(b) Bentley Tel agrees to a minimum deposit of fifty thousand dollars
($50,000.00) payable to BWP to be used towards the initial consulting,
marketing, advertising and promotional efforts. Said deposit will
be paid via wire transfer on the following schedule:
1. $15,000.00 paid on June 16, 2000
2. $15,000.00 paid on June 23, 2000
3. $10,000.00 paid on June 30, 2000
4. $10.000.00 paid on July 6, 2000
BWP's wire transfer information will be added to this Agreement as
"Exhibit C".
(c) Once BWP has submitted marketing, advertising, and promotional budgets
to Bentley Tel, Bentley Tel shall fund said budgets within 10 business
days of their receipt and not more than 5 business days from the
date that BWP commits to an advertising schedule with media
outlets. Bentley Tel understands that Bentley Tel is liable to
pay all schedules as agreed in Exhibit A.
(d) Bentley Tel agrees to pay the following expenses of BWP as they relate
to BWP's marketing, advertising, and promoting of Bentley Tel's
products and/or services which Bentley Tel must approved in writing
if not included in the "Gross Marketing, Advertising and Promotional
Budget":
1. All airline and ground travel, room and board
2. Equipment (i.e. tables and chairs for on-site promotions)
3. Additional employees needed to implement marketing, advertising,
and promotional plans (employees to work the on-site promotions).
4. The cost of all gross marketing, advertising, and promotional
packages purchased by BWP for Bentley Tel.
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6. Terms of Agreement
This agreement shall be in full force and effect for a time period of three
years and two automatically renewable two-year options therafter at the
sole option of BWP based upon BWP meeting all budgets and financial
projections that ..are prepared by BWP and agreed to by Bentley Tel
7. Relationship between Parties
(a) This agreement does not in any way create an employer/employee
relationship between Bentley Tel and BWP.
(b) During the terms of this agreement, BPW may represent itself to be a
representative of Bentley Tel provided that BWP shall not have any
authority, power or ability to enter into contractual arrangements on
behalf of ordering the name of Bentley Tel unless prior specific
written authority to do so has been granted by Bentley Tel to BWP.
(c) BWP shall be solely responsible for hiring, compensating, terminating
and other matters relating to any persons. companies or corporations
employed or engaged by BWP for any reasons whatsoever in connection
with this agreement.
8. Product Liability and Warranty
(a) Bentley Tel shall be wholly responsible for any and all product and/or
service liability claims made with respect to any and all of
their product(s) and/or service(s) sold to customers and Bentley
Tel shall be responsible for all warranty claims and obligations
in respect of warranty on products and/or services.
(b) BWP will not be held liable for Bentley Tel's errors and omissions
with respect to their product(s) and/or service(s).
(c) BWP agrees that it shall not represent warranty, coverage,
specifications, performance or any other information pertaining to
product save and except as is specifically approved by Bentley Tel,
BWP acknowledges that Bentley Tel shall have the exclusive and sole
right to determine and set product specifications and warranty.
(d) Notwithstanding the foregoing BWP agrees that it shall immediately
report to Bentley Tel any Claims or complaints in respect of which
it becomes aware of pertaining to product, product performance
or potential liability claims relating to the product.
9. Goodwill, Trademarks and Copyright
BWP shall not acquire any rights to or under any goodwill, trademarks,
copyrights or any other form of industrial or commercial property of
Bentley Tel and, if during the term of this agreement, any such
rights should become vested in BWP by operation of law or otherwise BWP
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agrees that it will upon the request of Bentley Tel and in any case on
termination or other expiration of this agreement, forthwith assign any
and all such rights, together with the goodwill appurtenant thereto,
to Bentley Tel.
10. Confidential Information
Bentley Tel shall not, during the term of this agreement or at any time,
divulge, furnish or make accessible to anyone or a third party
the secret knowledge of BWP, clients' secret knowledge, marketing,
advertising, and promotional information, trademarks, information,
etc. All shall be kept confidential by both parties during and after
the term of this agreement. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is not
published or which subsequently became general publicly known, other
than as a direct or indirect result of the breach of this agreement
by both parties.
Upon termination of this agreement, both parties will deliver, within 30
days, to each other all records, manuals, books, blank forms.
documents. letters, memoranda, notes, notebooks, reports, data tables,
calculations or copies therof which are the property of either party
and which relates in any way to business products, practices or
techniques of either party and all other property, trade secrets and
confidential information of either party, including but not limited
to all documents which in whole or in part contain any trade secrets
or confidential information of both parties.
11. Termination
(a) Termination of this agreement for any reason shall be without
prejudice to the rights and obligations of the parties hereto
which accrued prior to the effective date of termination.
Upon termination hereof BWP's right to market, advertise
and promote products and/or services and receive commissions
theron shall run in respect to orders accepted by Bentley
Tel and renewals by customers until customers discontinue their
products and/or services with Bentley Tel
(b) If any representation or warranty contained herein or made by or
furnished on behalf of BWP or Bentley Tel shall be false
or misleading to either party or BWP or Bentley Tel shall fail
to perform or observe any covenant or agreement contained in this
agreement. The Party of Parties at fault will be given 30 days
after they have been notified of a fault to remedy the situation.
12. General
(a) This agreement may not be assigned or otherwise transferred without
the prior written approval of Bentley Tel. All rights and
obligations under the terms of this agreement shall ensure to
and be binding upon any successors or assigns or permitted assigns
to the parties hereto.
(b) This agreement supersedes all prior agreements and understandings
between BWP and Bentley Tel and constitutes the entire agreement
between the parties.
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(c) No amendment or modification of agreement shall be effective unless
in writing and signed by the parties hereto.
(d) Provisions hereof shall be construed in accordance with the laws of
the State Of Texas and the parties hereby attorn to the
jurisdiction of the state district courts of the State of
Texas.
13. Subagencies
(a) BWP map appoint Sub-marketing and promotions agencies under this
agreement ("Subagency") subject to the following terms and
conditions:
1. BWP will contract any and all Subagencies.
2. Each Subagency shall execute an agreement regarding
confidentiality with BWP.
3. Each such Subagency shall execute a Subagency agreement with
BWP.
4. Bentley Tel and/or any Subagencies shall not circumvent BWP in
marketing, advertising, and promoting Bentley Tel products(s) and/or
service(s).
It is agreed between the parties venue to any such action shall lie in the state
district courts of Harris County, Houston, Texas.
In witness whereof, the parties hereto gave executed this agreement on the date
and year first written above.
AGREED:
Bentley Telcom:
BY: /s/ John Walsh, COO
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John Walsh, COO
Big Wheel Promotions, Inc.:
By: /s/ Jimmie D. Wheeler
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Jimmie D. Wheeler, President/CEO
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