SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB/A (No. 1)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1995
Commission File No.: 0-25764
MarketLink, Inc.
Minnesota 41-1675041
(State of Incorporation) (IRS Employer Identification Number)
10340 Viking Drive, Suite 150
Minneapolis, MN 55344
(612) 996-9000
Securities registered pursuant to Section 12(g) of the Exchange Act:
Common Stock, Par Value $.01
Check whether the Issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the Registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
Check if disclosure of delinquent filers in response to Item 405 of Regulation
S-B is not contained herein, and will not be contained, to the best of
Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [X]
The Company's revenues for the fiscal year ended December 31, 1995 totaled
$704,068.
The aggregate market value of the Common Stock held by nonaffiliates of the
Registrant as of February 29, 1996 was approximately $3,319,000 based upon the
closing bid price on the Nasdaq SmallCap Market on that date. The number of
shares outstanding of the registrant's $.01 par value common stock, as of
February 29, 1996 was 2,931,415.
Transitional Small Business Disclosure Format (Check One):
Yes No X
Portions of the registrant's Annual report to Shareholders for the
fiscal year ended December 31, 1995, which will be filed by April 8, 1996, are
incorporated by reference in Part II. Portions of the registrant's Proxy
Statement for its May 13, 1996 Annual Meeting, which will be filed by April 8,
1996, are incorporated by reference in Part III.
<PAGE>
PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons;
Compliance With Section 16(a) of the Exchange Act
The information required by Item 9 is incorporated by reference to the
sections entitled "Election of Five Directors to the Board of Directors" in the
Company's Proxy Statement for its fiscal year 1995 Annual Meeting of
Shareholders, which will be filed with the Securities and Exchange Commission
pursuant to Regulation 14A within 120 days of the Company's fiscal year ended
December 31, 1995.
Item 10. Executive Compensation
The information required by Item 10 is incorporated by reference to the
section entitled "Executive Compensation " and "Compensation of Directors" in
the Company's Proxy Statement for its fiscal year 1995 Annual Meeting of
Shareholders, which will be filed with the Securities and Exchange Commission
pursuant to Regulation 14A within 120 days of the Company's fiscal year ended
December 31, 1995.
Item 11. Security Ownership of Certain Beneficial Owners and Management
The information required by Item 11 is incorporated by reference to the
section entitled "Security Ownership of Certain Beneficial Owners and
Management" in the Company's Proxy Statement for its fiscal year 1995 Annual
Meeting of Shareholders, which will be filed with the Securities and Exchange
Commission pursuant to Regulation 14A within 120 days of the Company's fiscal
year ended December 31, 1995.
Item 12. Certain relationships and Related Transactions
The information required by Item 12 is incorporated by reference to the
section entitled "Certain relationships and Related Transactions" in the
Company's Proxy Statement for its fiscal year 1995 Annual Meeting of
Shareholders, which will be filed with the Securities and Exchange Commission
pursuant to Regulation 14A within 120 days of the Company's fiscal year ended
December 31, 1995.
Item 13. Exhibits and Reports on Form 8-K
(a) Exhibits
See Exhibit Index on page following Signatures.
(b) Reports on Form 8-K
The Company filed a report on Form 8-K (File No. 0-25764) on October 4,
1995. Such Form reported a change in the Company's certifying accountants.
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<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, MarketLink, Inc., has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
Dated: August 21, 1996 MarketLink, Inc.
By: /s/ Gregory H. Mohn
Gregory H. Mohn, Vice President
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<PAGE>
Exhibit Index
Exhibit Number Description
3.1 Amended Articles of Incorporation of the Company (a)
3.2 Bylaws of the Company as amended to date
4.1 Specimen form of the Company's Common Stock Certificate (a)
4.2 1994 Stock Option Plan (a)
10.1 Service Agreement Between The Hunstville Times Co. and
MarketLink, Inc. (a)
10.2 Service Agreement Between The Mobile Press Register, Inc. and
MarketLink, Inc. (a)
10.3 Service Agreement Between The Birmingham News Co. and
MarketLink, Inc. (a)
10.4 Master Agreement Between Pioneer Newspapers and MarketLink,
Inc. (a)
10.5 Master Agreement Between Yakima Newspapers, Inc. and
MarketLink, Inc. (a)
10.6 Master Agreement Between Pioneer Newspapers and MarketLink,
Inc. (a)
10.7 Agreement Between Data Management Services Division of Moore
Business Forms, Inc. and MarketLink, Inc. (a)
10.8 Agreement Between MarketLink, Inc. and Edina Realty, Inc. (a)
10.9 MarketLink, Inc. One Call System Agreement dated July 1, 1993
(a)
10.10 MarketLink, Inc. One Call System Services Agreement dated
October 22, 1992 (a)
10.11 Agreement Between Pizza Hut of St. Louis, Inc. and MarketLink,
Inc. (a)
10.12 MarketLink, Inc. One Call System Services Agreement dated
August 31, 1992 (a)
10.13 MarketLink, Inc. One Call System and Non-Compete Agreement (a)
10.14 MarketLink, Inc. One Call System Services Agreement dated
March 25, 1993 (a)
10.15 MarketLink, Inc. One Call System Agreement dated January 1,
1993 (a)
10.16 MarketLink, Inc. One Call System Rental and Non-Compete
Agreement (a)
10.17 MarketLink, Inc. One Call System Services Agreement dated
January 1, 1993 (a)
10.18 Agreement Between Pizza Hut of America, Inc. and MarketLink,
Inc. (a)
10.19 Agreement Between Pizza Hut of America, Inc. and MarketLink,
Inc. dated October 19 1994 (a)
10.20 Mapping Service Contract between Southwestern Bell Telephone
Company and MarketLink, Inc. (a)
10.21 Agreement Between Noble Roman's, Inc. and MarketLink, Inc.
covering Bloomington, IN dated May 10, 1995
10.22 Agreement Between Noble Roman's, Inc. and MarketLink, Inc.
covering South Bend, IN dated May 10, 1995
10.23 Agreement Between Noble Roman's, Inc. and MarketLink, Inc.
covering Evansville, IN dated May 10, 1995
10.24 Master Agreement Between Pioneer Newspapers and MarketLink,
Inc. dated may 15, 1995 (d)
10.25 Agreement Between The Hearst Corporation and MarketLink, Inc.
dated July 20, 1995 (d)
13 Annual Report to Shareholders for Fiscal Year 1995, dated
April 8, 1996 (c)
16 Letter from Boulay, Heutmaker, Zibell & Co. P.L.L.P., dated
October 3, 1995 (b)
20 Item 4 to the Company's Current Report on Form 8-K (b)
24 Power of Attorney (included on signature page) (c)
(a) Incorporated by reference to the Company's Registration Statement on
Form SB-2 (File No. 33-90084C) filed March 7, 1995
(b) Incorporated by reference to the Company's Current Report on Form 8-K
(File No. 0-25764), filed October 4, 1995
(c) Filed as an Exhibit to Company's initial filing on Form 10-KSB for the
fiscal year ended December 31, 1995 and incorporated herein by
reference (File No. 0-25764)
(d) Confidential treatment has been granted for certain information
contained in this exhibit, which information was filed with the
Securities and Exchange Commission with the Company's confidential
treatment request.
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BYLAWS
OF
MARKETLINK, INC.
(the "Corporation")
(as amended through March 8, 1996)
ARTICLE I.
Offices
Section 1. Registered Office. The registered office of the Corporation
required by Chapter 302A of the Minnesota Statutes to be maintained in the State
of Minnesota is as designated in the Articles of Incorporation. The Board of
Directors of the Corporation may, from time to time, change the location of the
registered office. On or before the day that such change is to become effective,
a certificate of such change and of the new address of the new registered office
shall be filed with the Secretary of State of the State of Minnesota.
Section 2. Other Offices. The Corporation may establish and maintain
such other offices, within or without the State of Minnesota, as are from time
to time authorized by the Board of Directors.
ARTICLE II.
Meetings of Shareholders
Section 1. Place of Meeting. All meetings of the shareholders shall be
held at the registered office of the Corporation in the State of Minnesota or at
such place within or without the state as may be fixed from time to time by the
Board of Directors, provided that a meeting called by or at the demand of a
shareholder shall be held in the county where the principal executive office of
the Corporation is located.
Section 2. Date of Meeting. A regular meeting of shareholders may be
held for the purpose of electing directors or for the transaction of any other
business as may come before the meeting. It shall be the duty of the President
or Treasurer, upon demand of any shareholder holding three percent (3%) or more
of the voting power of all shares entitled to vote to call such meeting if a
regular meeting of shareholders has not been held during the immediately
preceding fifteen (15) months. If said officers fail to call and hold such
meeting within ninety (90) days after receipt of the demand, the shareholder
making the demand shall have the right and power to call such meeting.
Section 3. Notice of Regular Meetings. Written notice of the time and
place of each regular shareholder meeting shall be mailed, postage prepaid, at
least ten (10) but not more than sixty (60) days before such meeting, to each
shareholder entitled to vote thereat at his address as the same appears upon the
books of the Corporation.
<PAGE>
Section 4. Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the President or Treasurer and shall
be called by the President or Treasurer at the request in writing of two or more
members of the Board of Directors, or at the request in writing of shareholders
owning ten percent (10%) or more of the voting power of all shares entitled to
vote. Such request, which shall be by registered mail or delivered in person to
the President or Treasurer, shall state the purpose or purposes of the proposed
meeting.
Section 5. Notice Of Special Meetings. Written notice of the time,
place and purpose or purposes of a special meeting shall be mailed, postage
prepaid, at least five (5) but not more than sixty (60) days before such
meeting, to each shareholder entitled to vote at such meeting at his address as
the same appears upon the books of the Corporation.
Section 6. Business to be Transacted. No business shall be transacted
at any special meeting of shareholders except that stated in the notice of the
meeting.
Section 7. Waiver of Notice. A shareholder may waive notice of a
meeting of shareholders. A waiver of notice by a shareholder entitled to notice
is effective whether given before, at, or after the meeting, and whether given
in writing, orally, or by attendance. Attendance by a shareholder at a meeting
is a waiver of notice of that meeting, except where the shareholder objects at
the beginning of the meeting to the transaction of business because the meeting
is not lawfully called or convened, or objects before a vote on an item of
business because the item may not lawfully be considered at that meeting and
does not participate in the consideration of the item at that meeting.
Section 8. Quorum and Adjournment. The holders of a majority of the
voting power of the shares entitled to vote at a meeting shall constitute a
quorum at all meetings of the shareholders for the transaction of business,
except as otherwise provided by statute or by the Articles of Incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
shareholders, the holders of a majority of the voting power of the shares
entitled to vote thereat, and present in person or represented by proxy, shall
have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally noticed. The shareholders present at a duly called or
held meeting at which a quorum is present may continue to transact business
until adjournment, even though the withdrawal of a number of shareholders
originally present leaves less than the proportion or number otherwise required
for a quorum.
Section 9. Voting Rights. A shareholder may cast his vote in person or
by proxy. When a quorum is present at the time a meeting is convened, the vote
of the holders of a majority of the shares entitled to vote on any question
present in person or by proxy shall decide such question unless the question is
one upon which, by express provision of the applicable statute or the Articles
of Incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
<PAGE>
Section 10. Manner of Voting. Each shareholder shall at every meeting
of the shareholders be entitled to one vote in person or by proxy for each share
of the capital stock having voting power held by such shareholder, but no proxy
shall be valid after eleven (11) months from its date, unless the proxy
expressly provides for a longer period, and, except where the transfer books of
the Corporation have been closed or a date has been fixed as a record date for
the determination of its shareholders entitled to vote, no share of stock that
has been transferred on the books of the Corporation within twenty (20) days
next preceding any election of directors shall be voted on at such election for
directors.
Section 11. Record Date. The Board of Directors may fix a date, not
exceeding sixty (60) days preceding the date of any meeting of shareholders, as
a record date for the determination of the shareholders entitled to notice of
and to vote at such meeting, and in such case only shareholders of record on the
date so fixed, or their legal representatives, shall be entitled to notice of
and to vote at such meeting, notwithstanding any transfer of any shares on the
books of the Corporation after any record date so fixed. The Board of Directors
may close the books of the Corporation against transfers of shares during the
whole or any part of such period.
Section 12. Organization of Meetings. The President shall preside at
all meetings of the shareholders, and in his or her absence the Treasurer shall
act as Chairman. The secretary shall act as secretary of all meetings of the
shareholders, or in his or her absence any person appointed by the Chairman
shall act as secretary.
Section 13. Action Without a Meeting. Any action required or permitted
to be taken at a shareholders' meeting may be taken without a meeting if
authorized by a writing or writings signed by all of the holders of shares who
would be entitled to vote on that action. Such action shall be effective at the
time the last signature is placed on such writing or writings, unless a
different effective time is provided in the written action. If any action so
taken requires a certificate to be filed in the office of the Secretary of
State, the officer signing such certificate shall state therein that the action
was effected in the manner aforesaid.
ARTICLE III.
Board of Directors
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under its Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Articles of Incorporation or by these Bylaws required to be
exercised or done by the shareholders.
Section 2. Number and Term of Office. The number of directors which
shall constitute the whole board shall be at least one (1), but not more than
five (5). Except as otherwise permitted by statute, the directors shall be
elected at each regular meeting of the Corporation's shareholders (or at any
special meeting of the shareholders called for that purpose) by a majority of
the voting power of all shares entitled to vote and present in person or by
proxy, and each director shall be elected to serve until the next regular
meeting of the shareholders or until his or her successor shall have been duly
elected and qualified.
<PAGE>
Section 3. Resignation and Removal. Any director may resign at any time
by giving written notice to the Corporation. Such resignation shall take effect
at the date of the receipt of such notice, or at any later lime specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any director may be
removed at any time, with or without cause, by the affirmative vote of the
holders of a majority of the voting shares entitled to elect such director.
Section 4. Vacancies. If the office of any director becomes vacant by
reason of death, resignation, removal, disqualification, or otherwise, the
directors then in office, although less than a quorum, by a majority vote, may
choose a successor who shall hold office for the unexpired term in respect of
which such vacancy occurred. With respect to the initial election of a director
to fill a newly created directorship resulting from an increase in the number of
directors by action of the Board of Directors in the manner permitted by
statute, such vacancy shall be filled by the affirmative vote of a majority of
the directors serving at the time of the increase.
Section 5. Meetings of Directors. The Board of Directors of the
Corporation may hold meetings, from time to time, either within or without the
State of Minnesota, at such place as a majority of the members of the Board of
Directors may from time to time appoint. If the Board of Directors fails to
select a place for the meeting, the meeting shall be held at the principal
executive office of the Corporation.
Section 6. Calling Meetings. Meetings of the Board of Directors may be
called by (i) the President on two (2) days' notice or (ii) any director on ten
(10) days' notice, to each director, either personally, by telephone or by mail
or telegram. Every such notice shall state the date, time and place of the
meeting. Notice of a meeting called by a person other than the President shall
state the purpose of the meeting.
Section 7. Participation by Conference Telephone. Directors of the
Corporation may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which
persons participating in the meeting can hear each other, and participation in a
meeting by that means shall constitute presence in person at the meeting.
Section 8. Waiver of Notice. A director may waive notice of a meeting
of the Board of Directors. A waiver of notice by a director entitled to notice
is effective whether given before, at, or after the meeting, and whether given
in writing, orally, or by attendance. Attendance by a director at a meeting is a
waiver of notice of that meeting, except where the director objects at the
beginning of the meeting to the transaction of business because the meeting was
not lawfully called or convened and does not participate thereafter in the
meeting.
<PAGE>
Section 9. Absent Directors. A director may give advance written
consent or opposition to a proposal to be acted on at a meeting of the Board of
Directors by actual delivery prior to the meeting of such advance written
consent or opposition to the President or Treasurer or a director who is present
at the meeting. If the director is not present at the meeting, advance written
consent or opposition to a proposal shall not constitute presence for purposes
of determining the existence of a quorum, but consent or opposition shall be
counted as a vote in favor of or against the proposal and shall be entered in
the minutes or other record of action at the meeting, if the proposal acted on
at the meeting is substantially the same or has substantially the same effect as
the proposal to which the director has consented or objected.
Section 10. Quorum. At all meetings of the Board of Directors a
majority of the directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by applicable statute or by the Articles
of Incorporation. If a quorum shall not be present at any meeting of the Board
of Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present. If a quorum is present at the call of a meeting, the directors may
continue to transact business until adjournment notwithstanding the withdrawal
of enough directors to leave less than a quorum.
Section 11. Organization of Meetings. The President shall preside at
all meetings of the Board of Directors, and in his or her absence the Treasurer
shall act as Chairman. The Secretary shall act as secretary of all meetings of
the Board of Directors, and in his or her absence any person appointed by the
Chairman shall act as secretary.
Section 12. Action Without Meeting. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a
meeting, if a written consent thereto is signed by all members of the Board of
Directors and such written consent is filed with the minutes of proceedings of
the Board of Directors. If the proposed action need not be approved by the
shareholders and the Articles of Incorporation so provide, action may be taken
by written consent signed by the number of directors that would be required to
take the same action at a meeting of the Board of Directors at which all
directors were present. Such action shall be effective on the date on which the
last signature is placed on such writing or writings, or such other effective
date as is set forth therein.
Section 13. Compensation of Directors. By resolution of the Board of
Directors, each director may be paid his or her expenses, if any, of attendance
at each meeting of the Board of Directors, and may be paid a stated amount as a
director or a fixed sum for attendance at each meeting of the Board of
Directors, or both. No such payment shall preclude a director from serving the
Corporation in any other capacity and receiving compensation therefor.
<PAGE>
Section 14. Committees. The Board of Directors by resolution adopted by
the affirmative vote of a majority of the directors present at any meeting at
which there is a quorum may designate one or more committees, each committee to
consist of one or more directors elected by the Board of Directors, which to the
extent provided in said resolution as initially adopted, and as thereafter
supplemented or amended by further resolution adopted by a like vote, shall have
and may exercise, when the Board of Directors is not in session, the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, except action in respect to dividends to shareholders, election of
the principal officers or the filing of vacancies in the Board of Directors or
committees created pursuant to this section. The Board of Directors may elect
one or more of its members as alternate members of any such committee who may
take the place of any absent member or members at any meeting of such committee,
urn request by the President or upon request by the chairman of such meeting.
Each such committee shall fix its own rules, consistent with applicable statutes
and these Bylaws, governing the conduct of its activities and shall make such
reports to the Board of Directors of its activities as the Board of Directors
may request. The Board of Directors shall establish and maintain an Audit
Committee and a Compensation Committee, each of which shall consist of four (4)
members of the Board of Directors.
ARTICLE IV.
Officers
Section 1. Number. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
and one or more Assistant Secretaries and Assistant Treasurers. Any number of
offices or functions of those offices may be held or exercised by the same
person.
Section 2. Election. The Board of Directors at its first meeting after
each regular meeting of shareholders shall choose a President, a Secretary and a
Treasurer.
Section 3. Other Officers and Agents. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
Section 4. Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors.
Section 5. Term of Office. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed with or without cause at any
time by the affirmative vote of a majority of the Board of Directors. Any
officer may resign at any time by giving written notice to the President or the
Secretary of the Corporation. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
<PAGE>
Section 6. The President. Powers and Duties. The President shall be the
chief executive officer of the Corporation, shall preside, when present, at all
meetings of the Board of Directors and the shareholders, shall have general
active management of the business of the Corporation, shall see that all orders
and resolutions of the Board of Directors are carried into effect, and shall
perform such other duties prescribed by the Board of Directors. He or she shall
execute and deliver in the name of the Corporation any deeds, mortgages, bonds,
contracts or other instruments pertaining to the business of the Corporation,
except in cases in which the authority to sign and deliver is required by law to
be exercised by another person or is expressly delegated by the Articles or the
By-laws or the Board of Directors to some other officer or agent of the
Corporation, and shall maintain records of and, whenever necessary, certify all
proceedings of the Board of Directors and the shareholders.
Section 7. The Vice President. Powers and Duties. The Vice President,
if any, or if there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President and shall
perform such other duties and have such other powers as the Board of Directors
or the President may from time to time prescribe.
Section 8. The Secretary. Powers and Duties. The Secretary shall attend
all meetings of the Board of Directors and all meetings of the shareholders and
record all the proceedings of the meetings of the Corporation and of the Board
of Directors in a book to be kept for that purpose. He or she shall give, or
cause to be given, notice of all meetings of the shareholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or President, under whose supervision he
or she shall be.
Section 9. Assistant Secretary. Powers and Duties. The Assistant
Secretary or, if there be more than one, the Assistant Secretaries, in the order
determined by the Board of Directors, shall, in the absence or disability of the
Secretary, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board of Directors
or the President may from time to time prescribe.
Section 10. The Treasurer. Powers and Duties. The Treasurer shall be
the chief financial officer of the Corporation. He or she shall keep accurate
financial records for the Corporation; deposit all money, drafts and checks in
the name of and to the credit of the Corporation in the banks and depositories
designated by the Board of Directors; endorse for deposit all notes, checks and
drafts received by the Board of Directors, making proper vouchers therefore;
disburse corporate funds and issue checks and drafts in the name of the
Corporation, as ordered by the Board of Directors; and perform other duties as
prescribed by the President or the Board of Directors.
The Treasurer shall render to the President and the Board of Directors,
whenever requested, an account of all his or her transactions and of the
financial condition of the Corporation.
Section 11. Treasurer's Bond. If required by the Board of Directors, he
or she shall give the Corporation a bond (which shall be renewed every six (6)
years) in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his or her
office and for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
<PAGE>
Section 12. Assistant Treasurer. Powers and Duties. The Assistant
Treasurer or, if there shall be more than one, the Assistant Treasurers, in the
order determined by the Board of Directors, shall, in the absence or disability
of the Treasurer, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board of
Directors or the President may from time to time prescribe.
ARTICLE V.
Certificates of Stock
Section 1. Certificates of Stock. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by the President and
the Secretary or an Assistant Secretary of the Corporation, if there be one,
certifying the number of shares owned by him or her in the Corporation. The
certificates of stock of each class shall be numbered in the order of their
issue.
Section 2. Facsimile Signatures. Where a certificate is signed (1) by a
transfer agent or an assistant transfer agent, or (2) by a transfer clerk acting
on behalf of the Corporation and a registrar, the signature of any such
President, Secretary or Assistant Secretary may be facsimile. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used on any such certificate or certificates shall cease to be such
officer or officers of the Corporation before such certificate or certificates
have been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the Corporation.
Section 3. Lost or Destroyed Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his or her legal representative, to advertise the same in such
manner as it shall require and/or to give the Corporation a bond in such sum as
it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
Section 4. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
<PAGE>
Section 5. Registered Shareholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall be
entitled to hold liable for calls and assessments a person so registered on its
books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by applicable statute.
ARTICLE VI.
Indemnification
The Corporation shall indemnify to the fullest extent permissible under
the provisions of Chapter 302A of the Minnesota Statutes, as amended, (as now or
hereafter in effect) any person made or threatened to be made a party to or
witness in any threatened, pending, or completed civil, criminal,
administrative, arbitration, or investigative proceeding, including a proceeding
by or in the right of the Corporation by reason of the fact that he, his
testator or intestate, is or was a director, officer or employee of the
Corporation, or by reason of the fact that such director, officer or employee,
while a director, officer or employee of the Corporation, is or was serving at
the request of the Corporation, or whose duties in that position involved
service as a director, officer, partner, trustee or agent of another
organization or employee benefit plan, against all judgments, penalties, fines,
including, without limitation, excise taxes assessed against the person with
respect to an employee benefit plan, settlements, and reasonable expenses,
including attorneys' fees and disbursements. Nothing contained herein shall
affect any rights to indemnification to which employees or agents of the
Corporation other than directors and officers may be entitled under the
provisions of Chapter 302A of the Minnesota Statutes, as amended. Any repeal or
modification of this Article VI shall be prospective only, and shall not
adversely affect any right to indemnification or protection of a director or
officer of the Corporation existing at the time of such repeal or modification.
ARTICLE VII.
General Provisions
Section 1. Dividends. Subject to the provisions of the applicable
statute and the Articles of Incorporation, dividends upon the capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the
capital stock.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purposes as the directors shall think conducive to the interest
of the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
<PAGE>
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 5. Seal. The Corporation shall not have a corporate seal.
ARTICLE VIII.
Books and Records, Fiscal Year
Section 1. Share Register. The Board of Directors of the corporation
shall cause to be kept at its principal executive office, or at another place or
places within the United States determined by the board:
(1) a share register not more than one year old, containing the
names and addresses of the shareholders and the number and
classes of shares held by each shareholder; and
(2) a record of the dates on which certificates or transaction
statements representing shares were issued.
Section 2. Other Books and Records. The Board of Directors shall cause
to be kept at its principal executive office, or if its principal executive
office is not in Minnesota, shall make available at its Minnesota registered
office within ten days after receipt by an officer of the corporation of a
written demand for them made by a shareholder or other person authorized by the
Minnesota Business Corporation Act, section 302A.46 1, originals or copies of:
(1) records of all proceedings of shareholders for the last three
years;
(2) records of all proceedings of the board for the last three
years;
(3) its articles and all amendments currently in effect;
(4) its bylaws and all amendments currently in effect;
(5) financial statements required by the Minnesota Business
Corporation Act, section 302A.463 and the financial statements
for the most recent interim period prepared in the course of
the operation of the corporation for distribution to the
shareholders or to a governmental agency as a matter of public
record;
(6) reports made to shareholders generally within the last three
years;
<PAGE>
(7) a statement of the names and usual business addresses of its
directors and principal officers; and
(8) any shareholder voting or control agreements of which the
corporation is aware.
Section 3. Fiscal Year. The fiscal year of the corporation shall be
determined by the Board of Directors.
ARTICLE IX.
Amendment to Bylaws
The Board of Directors may adopt, amend or repeal Bylaws for the
Corporation; provided, however, that such power shall be subject to the
applicable provisions of Minnesota Statutes, Chapters 302A and the Articles of
Incorporation.
ARTICLE X.
Indemnification
The Corporation shall indemnify any person made or threatened to be
made a party to a proceeding by reason of such person's present or former
official capacity as director, officer, employee or agent of the Corporation, or
any other organization which such person serves or has served at the request of
the Corporation, against judgments, penalties, fines, settlements, and expenses
incurred in connection with the proceeding, in the manner and under the
conditions specified in Minnesota Statutes, Section 302A.521.
ARTICLE XI.
Amendments
Section 1. Amendments. The power to make, alter, amend or rescind these
Bylaws is vested in the Board of Directors, subject to the power of the
shareholders to adopt, amend or repeal these Bylaws, as permitted by applicable
statute.
<PAGE>
SECRETARY'S CERTIFICATE
I, Steve Vollmer , Secretary of MarketLink, Inc., a Minnesota
corporation (the "Company"), do hereby represent and certify that the Bylaws
attached hereto are the Company Bylaws in effect as of the date hereof and there
are no revisions or amendments thereto other than as set forth therein.
Dated: Sept. 1, 1990 /s/ Steve Vollmer
Secretary
AGREEMENT BETWEEN
NOBLE ROMAN'S, INC. AND MARKETLINK, INC.
THIS AGREEMENT (the "Agreement") is made this 10th day of May 1995,
between Noble Roman's, Inc., an Indiana corporation ("Roman's") and MarketLink,
Inc., a Minnesota corporation ("MarketLink")
WHEREAS, Roman's is in the business of providing, among other things,
prepared food items delivered direct to the location specified by the consumer
in the Bloomington, Indiana metropolitan area; and
WHEREAS, MarketLink is in the business of providing, among other
things, single number telephone routing systems, interactive telephone systems,
tracking of telephone calls and mapping of telephone activity; and
WHEREAS, Roman's and MarketLink wish to provide a method for handling
telephone calls made to a single number in the Bloomington area to direct the
calls to the appropriate Roman's delivery location and produce reports to assist
in the management of Roman's in operations.
THEREFORE, it is agreed as follows:
1. DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the following meanings assigned:
a. Confidential Information: Confidential Information shall
consist of terms and conditions of this Agreement, the System,
MarketLink software and hardware, the Database, plus any
information furnished by one party to the other party which is
clearly marked as confidential.
b. Database: The Database shall consist of the census data
loaded at the time of System installation plus all information
derived from calls made to the System.
c. Enhancements: Enhancements shall include, but not be
limited to, increasing hardware capacity, and modifying,
upgrading, improving, altering or adding software to the
System.
d. System: The System is made up of the hardware, software and
database which, when combined, will perform the functions
described in Exhibit A to this Agreement.
2. INSTALLATION. The single number telephone routing System, with
caller ID will be installed and operational no later than June 15, 1995, unless
the parties agree on a later date.
<PAGE>
3. RESPONSIBILITIES AND REPRESENTATIONS. During the term of this
Agreement, the parties shall have the responsibilities and representations
outlined below;
a. MarketLink shall, at its own expense;
i. Provide and maintain in proper working order all
necessary hardware and software required for the
operation of the System.
ii. Provide a 24-hour-a-day telephone number for
Roman's to report any hardware or software failure
and investigate and seek to correct such problems as
soon as possible.
b. Roman's shall pay for all telephone and related charges,
including system site rental, if applicable.
4. CONSIDERATION. As consideration for the products and services being
provided by MarketLink hereunder (the "Consideration") Roman's shall pay
quarterly in advance, to MarketLink;
a. For the first three years following installation, Three
Thousand Seven Hundred Fifty Dollars ($3,750.00) per calendar
quarter commencing upon completion of the installations of the
System.
b. For the period following the first three years after
installation and terminating eight years after installation,
Nine Hundred Dollars ($900.00) per calendar quarter.
c. Payment for the first period shall be prorated from the
date of installation to the end of the next calendar quarter.
5. ENHANCEMENTS. Roman's and MarketLink will mutually agree on the
definition, timing and pricing for any Enhancements to be included in the
System, except that Roman's may, upon providing MarketLink with three weeks
prior notice and payment of Five Hundred Dollars ($500.00), increase the
capacity of the System from six to eight telephone ports.
6. TERM. The term of this Agreement shall be for eight (8) years.
7. CONFIDENTIALITY. Confidential Information shall not be disclosed by
either party to third persons without the other party's prior written consent.
The parties shall exercise at least the same degree of care with the
Confidential Information obtained from the other as they normally exercise in
preserving their own Confidential Information of the same or similar nature.
Upon termination of this Agreement, each party shall, upon the request of the
other, return without change all copies of any Confidential Information
disclosed or provided to it by the other party. The obligations under this
paragraph shall indefinitely survive the termination or cancellation of this
Agreement.
<PAGE>
8. OWNERSHIP. During the initial three years of this Agreement,
MarketLink shall retain all right, title and interest to the hardware and any
Enhancements, inventions, discoveries, improvements, upgrades and alterations,
the software, and all other intellectual property developed in connection with
the development, trial or implementation of the System. At the conclusion of the
initial three year period ownership of the System in use at that time shall
transfer from MarketLink to Roman's. Notwithstanding the foregoing, during the
term of this Agreement and thereafter, Roman's and MarketLink jointly retain all
right, title and interest to the Database and any improvements, upgrades and
alterations thereof.
9. ASSIGNMENT. Either party may assign this Agreement to a wholly-owned
subsidiary parent corporation or any of its parent's wholly-owned subsidiaries
without the consent of the other party, provided that the assigning party shall
remain liable for and will guarantee its assignee's performance, including
payment of all monies, under this Agreement. Subject to these restrictions, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their permitted assigns. No other assignment of this Agreement
shall be permitted without the express written consent of the non-assigning
party.
10. FORCE MAJEURE. Neither party nor its affiliates, subsidiaries,
subcontractors, parent corporation or any of its parent's affiliates or
subsidiaries shall be liable in any way for delay, failure in performance, loss
or damage due to force majeure conditions beyond such parties' reasonable
control, including but not limited to fire, strike, embargo, explosion, power
blackout, earthquake, volcanic action, flood, war, water, the elements, labor
disputes, civil or military authority, acts of God, public enemy, inability to
secure raw materials, inability to secure products, or acts or omissions of
carriers.
11. OTHER EVENTS OUTSIDE PARTIES CONTROL. Neither party nor its
affiliates, subsidiaries, subcontractors, parent corporation or any of its
parent's affiliates or subsidiaries, if any, shall be liable in any way for
delay, failure, in performance, loss or damage due to other conditions beyond
such parties' reasonable control, including, but not limited to, telephone line
outage or any acts or omissions of telephone companies or public utilities
commissions.
12. DEFAULT. Upon any breach or default by a party to this Agreement
the other party shall notify such party of the breach or default in writing.
Failure of the party in breach or default to cure such breach or default within
thirty (30) days after the effective date of such notice shall entitle the other
party to terminate its own performance of this Agreement and exercise any or all
remedies available to it at law or in equity.
13. NOTICES. All notices required by this Agreement shall be in writing
and shall be sent by overnight delivery or certified mail, return receipt
requested, prepaid and addressed as follows
To MarketLink: MarketLink, Inc.
Attn: President & CEO
10340 Viking Drive, Suite 150
Eden Prairie, MN 55344
<PAGE>
To Roman's: Noble Roman's, Inc.
Attn: Scott Mobley
1 Virginia Avenue, Suite 800
Indianapolis, IN 46204
Notices shall be effective upon receipt or three (3) days after mailing,
whichever occurs earlier. Each party is responsible for reporting, in writing,
any change of address.
15. WAIVER. No consent or waiver by either party of any breach or
default by the other party under this Agreement shall be effective unless such
consent or waiver is set forth in a written instrument signed by the
non-breaching party. The failure of a party to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a waiver of any
such provision, nor in any way shall it affect the validity of this Agreement,
or any part hereof, or the right of any party to enforce each and every
provision hereof. No waiver of any breach of this Agreement shall be held to be
a waiver of any other or subsequent breach hereunder.
16. SURVIVAL. The provisions of Sections 7, 8, 22, 23, 24 and 25
hereunder, and any other provision of this Agreement which, by its sense and
context, is intended to survive performance by either or both parties shall so
survive the completion, termination, or cancellation of this Agreement.
17. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall, for any reason, be held by a court of competent jurisdiction to
be invalid, illegal, or unenforceable in any response, such invalidity,
illegality, or unenforceability shall not affect any other provision of this
Agreement. Such provision or provisions shall be ineffective only to the extent
of such invalidity, illegality, or unenforceability without invalidating the
remainder of such provision or provisions or any of the remaining provisions of
this Agreement. This Agreement shall he construed as if such invalid, illegal,
or unenforceable provision or provisions had never been contained herein, unless
the deletion of such provision or provisions would result in such a material
change as to cause performance by a party to be unreasonable, in which case the
parties shall negotiate a reasonable replacement.
18. SECTION HEADINGS. The headings of the sections hereunder are for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
19. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. Amendments,
modifications, supplements or changes to this Agreement must be in writing and
signed by a duly authorized representative of the party against whom such
amendments, modifications supplements or changes are being enforced.
20. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Minnesota.
<PAGE>
21. ENTIRE AGREEMENT. The terms and conditions of this Agreement
constitute the entire agreement and understanding between the parties with
respect to the subject matter hereof. Prior written or oral agreements,
proposals or understandings between the parties on the same or related subjects
are hereby superseded and replaced in all respects by the terms contained
herein.
22. WARRANTY. MARKETLINK'S OBLIGATIONS UNDER THIS AGREEMENT SHALL DE
VALID AND ENFORCEABLE ONLY IF THE SYSTEM IS USED IN THE WAY AND FOR THE PURPOSE
CONTEMPLATED BY THE PARTIES HERETO. ROMAN'S SHALL BE SOLELY RESPONSIBLE FOR ANY
AND ALL COSTS MADE NECESSARY BY ANY OTHER USE OF THE SYSTEM, INCLUDING COSTS OF
MAINTENANCE OR REPAIRS RESULTING THEREFROM, UNLESS SAID USE AND ASSOCIATED COSTS
ARE MUTUALLY AGREED TO IN WRITING BY ROMAN'S AND MARKETLINK, IN WHICH CASE SAID
COSTS SHALL BE SHARED EQUALLY.
23. OTHER WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, NO EXPRESS
OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PROGRAM OR GOODS OR SERVICES TO
BE SUPPLIED BY MARKETLINK OR ITS SUBSIDIARIES, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY NOR FITNESS FOR A PARTICULAR PURPOSE.
MARKETLINK DOES NOT WARRANT THE ECONOMIC RESULTS OF ANY PROGRAM OR SERVICES
IMPLEMENTED BY ROMAN'S HEREUNDER.
24. LIMITATION ON LIABILITIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE
TOTAL LIABILITY, IF ANY, OF MARKETLINK AND ITS SUBSIDIARIES, INCLUDING, BUT NOT
LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY,
INFRINGEMENT OR OTHERWISE SHALL NOT IN ANY EVENT EXCEED FORTY-FIVE THOUSAND
DOLLARS ($45,000). NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFITS, LOSS OR
INACCURACY OF DATA OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS
THE DAMAGE ARISES OUT OF MARKETLINK'S INTENTIONAL OR WILLFUL ACTS.
25. INDEMNIFICATION. Each party (the "Indemnifier") shall indemnify and
hold harmless the other party (the "Indemnifiee") from and against (and shall
reimburse the Indemnifiee on demand for) any and all actual expenses, damages,
costs, losses and obligations, and liabilities incurred by the Indemnifiee, or
any of its affiliated companies agents, employees or other related parties,
incurred by the indemnifiee as a result of the acts or omissions of the
indemnifier under this Agreement, including, but not limited to actions arising
out of the use of any information, and any and all claims, actions, suits,
proceedings, demands, assessments, penalties, obligations, judgments, costs, and
reasonable legal and other expenses incident to any of the foregoing or incurred
in investigating, defending or attempting to avoid the same, opposing the
imposition thereof or in enforcing this indemnity.
<PAGE>
26. AUTHORITY. Roman's and MarketLink hereby agree that this Agreement
when executed and delivered by the parties hereto, will constitute a valid and
legally binding obligation of such parties, enforceable in accordance with its
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. Furthermore, each of the parties
hereto hereby represent that they have the due and valid authority required to
execute and carry out the terms and conditions contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives the day and year
above written.
MARKETLINK, INC.
By
Its
NOBLE ROMAN'S
By
Its
AGREEMENT BETWEEN
NOBLE ROMAN'S, INC. AND MARKETLINK, INC.
THIS AGREEMENT (the "Agreement") is made this 10th day of May, 1995
between Noble Roman's, Inc., an Indiana corporation ("Roman's") and MarketLink,
Inc., a Minnesota corporation ("MarketLink").
WHEREAS, Roman's is in the business of providing, among other things,
prepared food items delivered direct to the location specified by the consumer
in the South Bend, Indiana metropolitan area; and
WHEREAS, MarketLink is in the business of providing, among other
things, single number telephone routing systems, interactive telephone systems,
tracking of telephone calls and mapping of telephone activity; and
WHEREAS, Roman's and MarketLink wish to provide a method for handling
telephone calls made to a single number in the South Bend area to direct the
calls to the appropriate Roman's delivery location and produce reports to assist
in the management of Roman's in operations.
THEREFORE, it is agreed as follows:
1. DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the following meanings assigned:
a. Confidential Information: Confidential Information shall
consist of terms and conditions of this Agreement, the System,
MarketLink software and hardware, the Database, plus any
information furnished by one party to the other party which is
clearly marked as confidential.
b. Database: The Database shall consist of the census data
loaded at the time of System installation plus all information
derived from calls made to the System.
c. Enhancements: Enhancements shall include, but not be
limited to, increasing hardware capacity, and modifying,
upgrading, improving, altering or adding software to the
System.
d. System: The System is made up of the hardware, software and
database which, when combined, will perform the functions
described in Exhibit A to this Agreement.
2. INSTALLATION. The single number telephone routing System, with
caller ID will be installed and operational no later than June 15, 1995, unless
the parties agree on a later date.
<PAGE>
3. RESPONSIBILITIES AND REPRESENTATIONS. During the term of this
Agreement, the parties shall have the responsibilities and representations
outlined below
a. MarketLink shall, at its own expense.
i. Provide and maintain in proper working order all
necessary hardware and software required for the
operation of the System
ii. Provide a 24-hour-a-day telephone number for
Roman's to report any hardware or software failure
and investigate and seek to correct such problems as
soon as possible
b. Roman's shall pay for all telephone and related charges,
including system site rental, if applicable
4. CONSIDERATION. As consideration for the products and services being
provided by MarketLink hereunder (the "Consideration") Roman's shall pay
quarterly, in advance, to MarketLink;
a. For the first three years following installation, Three
Thousand Seven Hundred Fifty Dollars ($3,750.00) per calendar
quarter commencing upon completion of the installations of the
System.
b. For the period following the first three years after
installation and terminating eight years after installation,
Nine Hundred Dollars ($900.00) per calendar quarter.
c. Payment for the first period shall be prorated from the
date of installation to the end of the next calendar quarter.
5. ENHANCEMENTS. Roman's and MarketLink will mutually agree on the
definition, timing and pricing for any Enhancements to be included in the
System, except that Roman's may, upon providing MarketLink with three weeks
prior notice and payment of Five Hundred Dollars ($500.00), increase the
capacity of the System from six to eight telephone ports.
6. TERM. The term of this Agreement shall be for eight (8) years.
7. CONFIDENTIALITY. Confidential Information shall not be disclosed by
either party to third persons without the other party's prior written consent.
The parties shall exercise at least the same degree of care with the
Confidential Information obtained from the other as they normally exercise in
preserving their own Confidential Information of the same or similar nature.
Upon termination of this Agreement, each party shall upon the request of the
other return without change all copies of any Confidential Information disclosed
or provided to it by the other party. The obligations under this paragraph shall
indefinitely survive the termination or cancellation of this Agreement.
<PAGE>
8. OWNERSHIP. During the initial three years of this Agreement,
MarketLink shall retain all right, title and interest to the hardware, and any
Enhancements, inventions discoveries, improvements, upgrades and alterations,
the software, and all other intellectual property developed in connection with
the development, trial or implementation of the System at the conclusion of the
initial three year period ownership of the System in use at that time shall
transfer from MarketLink to Roman's. Notwithstanding the foregoing, during the
term of this Agreement and thereafter. Roman's and MarketLink jointly retain all
right, title and interest to the Database and any improvements, upgrades and
alterations thereof
9. ASSIGNMENT. Either party may assign this Agreement to a wholly-owned
subsidiary, parent corporation or any of its parent's wholly-owned subsidiaries
without the consent of the other party, provided that the assigning party shall
remain liable for and will guarantee its assignee's performance, including
payment of all monies, under this Agreement. Subject to these restrictions, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their permitted assigns. No other assignment of this Agreement
shall be permitted without the express written consent of the non-assigning
party.
10. FORCE MAJEURE. Neither party nor its affiliates, subsidiaries,
subcontractors, parent corporation or any of its parent's affiliates or
subsidiaries shall be liable in any way for delay, failure in performance, loss
or damage due to Force majeure conditions beyond such parties' reasonable
control, including but not limited to fire, strike, embargo, explosion, power
blackout, earthquake, volcanic action, flood, war, water, the elements, labor
disputes, civil or military authority, acts of God, public enemy, inability to
secure raw materials, inability to secure products, or acts or omissions of
carriers.
11. OTHER EVENTS OUTSIDE PARTIES CONTROL. Neither party nor its
affiliates, subsidiaries, subcontractors, parent corporation or any of its
parent's affiliates or subsidiaries, if any, shall be liable in any way for
delay, failure, in performance, loss or damage due to other conditions beyond
such parties' reasonable control, including, but not limited to, telephone line
outage or any acts or omissions of telephone companies or public utilities
commissions.
12. DEFAULT. Upon any breach or default by a party to this Agreement,
the other party shall notify such party of the breach or default in writing.
Failure of the party in breach or default to cure such breach or default within
thirty (30) days after the effective date of such notice shall entitle the other
party to terminate its own performance of this Agreement and exercise any or all
remedies available to it at law or equity.
<PAGE>
13. NOTICES. All notices required by this Agreement shall be writing
and shall be sent by overnight delivery or certified mail, return receipt
requested prepaid and addressed as follows:
To MarketLink: MarketLink, Inc
Att: President & CEO
10340 Viking Drive, Suite 150
Eden Prairie, MN 55344
To Roman's: Noble Roman's, Inc
Att: Scott Mobley
1 Virginia Avenue, Suite 800
Indianapolis, IN 46204
Notices shall be effective upon receipt or three (3) days after mailing,
whichever occurs earlier. Each party is responsible for reporting, in writing,
any change of address.
15. WAIVER. No consent or waiver by either party of any breach or
default by the other party under this Agreement shall be effective unless such
consent or waiver is set forth in a written instrument signed by the
non-breaching party. The failure of a party to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a waiver of any
such provision, nor in any way shall it affect the validity of this Agreement,
or any part hereof, or the right of any party to enforce each and every
provision hereof. No waiver of any breach of this Agreement shall be held to be
a waiver of any other or subsequent breach hereunder.
16. SURVIVAL. The provisions of Sections 7, 8, 22, 23, 24 and 25
hereunder, and any other provision of this Agreement which, by its sense and
context, is intended to survive performance by either or both parties shall so
survive the completion, termination, or cancellation of this Agreement.
17. Severability. In case any one or more of the provisions of this
Agreement shall, for any reason, be held by a court of competent jurisdiction to
be invalid, illegal, or unenforceable in any response, such invalidity,
illegality, or unenforceability shall not affect any other provision of this
Agreement. Such provision or provisions shall be ineffective only to the extent
of such invalidity, illegality, or unenforceability without invalidating the
remainder of such provision or provisions or ally of the remaining provisions of
this Agreement. This Agreement shall be construed as if such invalid, illegal,
or unenforceable provision or provisions had never been contained herein, unless
the deletion of such provision or provisions would result in such a material
change as to cause performance by a party to be unreasonable, in which case the
parties shall negotiate a reasonable replacement.
18. SECTION HEADINGS. The headings of the sections hereunder are for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
<PAGE>
19. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. Amendments,
modifications, supplements or changes to this Agreement must be in writing and
signed by a duly authorized representative of the party against whom such
amendments, modifications, supplements or changes are being enforced.
20. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Minnesota.
21. ENTIRE AGREEMENT. The terms and conditions of this Agreement
constitute the entire agreement and understanding between the parties with
respect to the subject matter hereof. Prior written or oral agreements,
proposals or understandings between the parties on the same or related subjects
are hereby superseded and replaced in all respects by the terms contained
herein.
22. WARRANTY. MARKETLINK'S OBLIGATIONS UNDER THIS AGREEMENT SHALL BE
VALID AND ENFORCEABLE ONLY IF THE SYSTEM IS USED IN THE WAY AND FOR THE PURPOSE
CONTEMPLATED BY THE PARTIES HERETO. ROMAN'S SHALL BE SOLELY RESPONSIBLE FOR ANY
AND ALL COSTS MADE NECESSARY BY ANY OTHER USE OF THE SYSTEM, INCLUDING COSTS OF
MAINTENANCE OR REPAIRS RESULTING THEREFROM. UNLESS SAID USE AND ASSOCIATED COSTS
ARE MUTUALLY AGREED TO IN WRITING BY ROMAN'S AND MARKETLINK, IN WHICH CASE SAID
COSTS SHALL BE SHARED EQUALLY.
23. OTHER WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN. NO EXPRESS
OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PROGRAM OR GOODS OR SERVICES TO
BE SUPPLIED BY MARKETLINK OR ITS SUBSIDIARIES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTY OF MERCHANTABILITY NOR FITNESS FOR A PARTICULAR PURPOSE.
MARKETLINK DOES NOT WARRANT THE ECONOMIC RESULTS OF ANY PROGRAM OR SERVICES
IMPLEMENTED BY ROMAN'S HEREUNDER.
24. LIMITATION ON LIABILITIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE
TOTAL LIABILITY, IF ANY, OF MARKETLINK AND ITS SUBSIDIARIES, INCLUDING BUT NOT
LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY.
INFRINGEMENT OR OTHERWISE SHALL NOT IN ANY EVENT EXCEED FORTY-FIVE THOUSAND
DOLLARS ($45,000). NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFITS, LOSS OR
INACCURACY OF DATA, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS
THE DAMAGE ARISES OUT OF MARKETLINK'S BREACH OF CONFIDENTIALITY OBLIGATIONS
HEREIN OR MARKETLINK'S INTENTIONAL OR WILLFUL ACTS.
<PAGE>
25. INDEMNIFICATION. Each party (the "Indemnifier") shall indemnify and
hold harmless the other party (the "Indemnifiee") from and against (and shall
reimburse the Indemnifiee on demand for) any and all actual expenses, damages,
costs, losses, obligations, and liabilities incurred by the Indemnifiee, or any
of its affiliated companies, agents, employees or other related parties,
incurred by the indemnifiee as a result of the acts or omissions of the
indemnifier under this Agreement, including, but not limited to, actions arising
out of the use of any information and any and all claims, actions, suits,
proceedings, demands, assessments, penalties, obligations, judgments, costs, and
reasonable legal and other expenses incident to any of the foregoing or incurred
in investigating, defending or attempting to avoid the same, opposing the
imposition thereof or in enforcing this indemnity.
26. AUTHORITY. Roman's and MarketLink hereby agree that this Agreement,
when executed and delivered by the parties hereto, will constitute a valid and
legally binding obligation of such parties, enforceable in accordance with its
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance
injunctive relief or other equitable remedies. Furthermore, each of the parties
hereto hereby represent that they have the due and valid authority required to
execute and carry out the terms and conditions contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives the day and year
above written.
MARKETLINK, INC.
By:
Its:
NOBLE ROMAN'S
By:
Its:
AGREEMENT BETWEEN
NOBLE ROMAN'S, INC. AND MARKETLINK, INC.
THIS AGREEMENT (the "Agreement") is made this 10th day of May 1995,
between Noble Roman's, Inc., an Indiana corporation ("Roman's") and Market Link,
Inc., a Minnesota corporation ("MarketLink")
WHEREAS, Roman's is in the business of providing, among other things.
prepared food items delivered direct to the location specified by the consumer
in the Evansville, Indiana metropolitan area; and
WHEREAS, MarketLink is in the business of providing, among other
things, single number telephone routing systems, interactive telephone systems,
tracking of telephone calls and mapping of telephone activity; and
WHEREAS, Roman's and MarketLink wish to provide a method for handling
telephone calls made to a single number in the Evansville area to direct the
calls to the appropriate Roman's delivery location and produce reports to assist
in the management of Roman's in operations.
THEREFORE, it is agreed as follows:
1. DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the following meanings assigned:
a. Confidential Information: Confidential Information shall
consist of terms and conditions of this Agreement, the System,
MarketLink software and hardware, the Database, plus any
information furnished by one party to the other party which is
clearly marked as confidential.
b. Database: The Database shall consist of the census data
loaded at the time of System installation plus all information
derived from calls made to the System.
c. Enhancements: Enhancements shall include, but not be
limited to. increasing hardware capacity. and modifying.
upgrading. improving. altering or adding software to the
System.
d. System: The System is made up of the hardware, software and
database which, when combined, will perform the functions
described in Exhibit A to this Agreement.
2. INSTALLATION. The single number telephone routing System, with
caller ID will be installed and operational no later than June 15, 1995 unless
the parties agree on a later date.
<PAGE>
3. RESPONSIBILITIES AND REPRESENTATIONS. During the term of this
Agreement the parties shall have the responsibilities and representations
outlined below.
a. MarketLink shall, at its own expense.
i. Provide and maintain in proper working order all
necessary hardware and software required for the
operation of the System
ii. Provide a 24-hour-a-day telephone number for
Roman's to report any hardware or software failure
and investigate and seek to correct such problems as
soon as possible.
b. Roman's shall pay for all telephone and related charges,
including system site rental if applicable.
4. CONSIDERATION. As consideration for the products and services being
provided by MarketLink hereunder (the "Consideration") Roman's shall pay
quarterly. in advance, to MarketLink;
a. For the first three years following installation, Three
Thousand Seven Hundred Fifty Dollars ($3,750.00) per calendar
quarter commencing upon completion of the installations of the
System.
b. For the period following the first three years after
installation and terminating eight years after installation,
Nine Hundred Dollars ($900.00) per calendar quarter.
c. Payment for the first period shall be prorated from the
date of installation to the end of the next calendar quarter.
5. ENHANCEMENTS. Roman's and MarketLink will mutually agree on the
definition, timing and pricing for any Enhancements to be included in the
System, except that Roman's may, upon providing MarketLink with three weeks
prior notice and payment of Five Hundred Dollars ($500.00), increase the
capacity of the System from six to eight telephone ports.
6. TERM. The term of this Agreement shall be for eight (8) years.
7. CONFIDENTIALITY. Confidential Information shall not be disclosed by
either party to third persons without the other party's prior written consent.
The parties shall exercise at least the same degree of care with the
Confidential Information obtained from the other as they normally exercise in
preserving their own Confidential Information of the same or similar nature.
Upon termination of this Agreement, each party shall upon the request of the
other, return without change all copies of any Confidential Information
disclosed or provided to it by the other party. The obligations under this
paragraph shall indefinitely survive the termination or cancellation of this
Agreement.
<PAGE>
8. OWNERSHIP. During the initial three years of this Agreement,
MarketLink shall retain all right, title and interest to the hardware, and any
Enhancements, inventions, discoveries, improvements, upgrades and alterations,
the software, and all other intellectual property developed in connection with
the development, trial or implementation of the System. At the conclusion of the
initial three year period ownership of the System in use at that time shall
transfer from MarketLink to Roman's. Notwithstanding the foregoing, during the
term of this Agreement and thereafter, Roman's and MarketLink jointly retain all
right, title and interest to the Database and any improvements, upgrades and
alterations thereof.
9 ASSIGNMENT. Either party may assign this Agreement to a wholly-owned
subsidiary, parent corporation or any of its parent's wholly-owned subsidiaries
without the consent of the other party, provided that the assigning party shall
remain liable for and will guarantee its assignee's performance, including
payment of all monies, under this Agreement. Subject to these restrictions, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their permitted assigns. No other assignment of this Agreement
shall be permitted without the express written consent of the non-assigning
party.
1O FORCE MAJEURE. Neither party nor its affiliates, subsidiaries,
subcontractors, parent corporation or any of its parent's affiliates or
subsidiaries shall be liable in any way for delay, failure in performance, loss
or damage due to force majeure conditions beyond such parties' reasonable
control, including but not limited to fire, strike, embargo, explosion, power
blackout, earthquake, volcanic action, flood, war, water, the elements, labor
disputes, civil or military authority, acts of God, public enemy, inability to
secure raw materials, inability to secure products, or acts or omissions of
carriers.
11. OTHER EVENTS OUTSIDE PARTIES CONTROL. Neither party nor its
affiliates, subsidiaries, subcontractors, parent corporation or any of its
parent's affiliates or subsidiaries, if any, shall be liable in any way for
delay, failure, in performance, loss or damage due to other conditions beyond
such parties' reasonable control, including, but not limited to, telephone line
outage or any acts or omissions of telephone companies or public utilities
commissions.
12. DEFAULT. Upon any breach or default by a party to this Agreement,
the other party shall notify such party of the breach or default in writing.
Failure of the party in breach or default to cure such breach or default within
thirty (30) days after the effective date of such notice shall entitle the other
party to terminate its own performance of this Agreement and exercise any or all
remedies available to it at law or in equity.
13. NOTICES. All notices required by this Agreement shall be in writing
and shall be sent by overnight delivery or certified mail, return receipt
requested prepaid and addressed as follows:
To MarketLink: MarketLink, Inc
Att: President & CEO
10340 Viking Drive, Suite 150
Eden Prairie, MN 55344
<PAGE>
To Roman's: Noble Roman's, Inc
Att: Scott Mobley
1 Virginia Avenue, Suite 800
Indianapolis, IN 46204
Notices shall be effective upon receipt or three (3) days after mailing,
whichever occurs earlier. Each party is responsible for reporting, in writing,
any change of address.
15. WAIVER. No consent or waiver by either party of any breach or
default by the other party under this Agreement shall be effective unless such
consent or waiver is set forth in a written instrument signed by the
non-breaching party. The failure of a party to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a waiver of any
such provision, nor in any way shall it affect the validity of this Agreement,
or any part hereof or the right of any party to enforce each and every provision
hereof. No waiver of any breach of this Agreement shall be held to be a waiver
of any other or subsequent breach hereunder.
16. SURVIVAL. The provisions of Sections 7, 8, 22, 23, 24 and 25
hereunder, and any other provision of this Agreement which, by its sense and
context, is intended to survive performance by either or both parties shall so
survive the completion, termination, or cancellation of this Agreement.
17. SEVERABILITY. In case any one or more of the provisions of this
Agreement shall, for any reason, be held by a court of competent jurisdiction to
be invalid, illegal, or unenforceable in any response, such invalidity,
illegality, or unenforceability shall not affect any other provision of this
Agreement. Such provision or provisions shall be ineffective only to the extent
of such invalidity, illegality, or unenforceability without invalidating the
remainder of such provision or provisions or any of the remaining provisions of
this Agreement. This Agreement shall be construed as if such invalid, illegal,
or unenforceable provision or provisions had never been contained herein, unless
the deletion of such provision or provisions would result in such a material
change as to cause performance by a party to be unreasonable, in which case the
parties shall negotiate a reasonable replacement.
18. SECTION HEADINGS. The headings of the sections hereunder are for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
19. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. Amendments,
modifications, supplements or changes to this Agreement must be in writing and
signed by a duly authorized representative of the party against whom such
amendments, modifications, supplements or changes are being enforced.
20. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Minnesota.
<PAGE>
2l. ENTIRE AGREEMENT. The terms and conditions of this Agreement
constitute the entire agreement and understanding between the parties with
respect to the subject matter hereof. Prior written or oral agreements,
proposals or understandings between the parties on the same or related subjects
are hereby superseded and replaced in all respects by the terms contained
herein.
22. WARRANTY. MARKETLINK'S OBLIGATIONS UNDER THIS AGREEMENT SHALL BE
VALID AND ENFORCEABLE ONLY IF THE SYSTEM IS USED IN THE WAY AND FOR THE PURPOSE
CONTEMPLATED BY THE PARTIES HERETO. ROMAN'S SHALL BE SOLELY RESPONSIBLE FOR ANY
AND ALL COSTS MADE NECESSARY BY ANY OTHER USE OF THE SYSTEM, INCLUDING COSTS OF
MAINTENANCE OR REPAIRS RESULTING THEREFROM, UNLESS SAID USE AND ASSOCIATED COSTS
ARE MUTUALLY AGREED TO IN WRITING BY ROMAN'S AND MARKETLINK, IN WHICH CASE SAID
COSTS SHALL BE SHARED EQUALLY.
23. OTHER WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, NO EXPRESS
OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PROGRAM OR GOODS OR SERVICES TO
BE SUPPLIED BY MARKETLINK OR ITS SUBSIDIARIES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTY OF MERCHANTABILITY NOR FITNESS FOR A PARTICULAR PURPOSE.
MARKETLINK DOES NOT WARRANT THE ECONOMIC RESULTS OF ANY PROGRAM OR SERVICES
IMPLEMENTED BY ROMAN'S HEREUNDER.
24. LIMITATION ON LIABILITIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE
TOTAL LIABILITY, IF ANY, OF MARKETLINK AND ITS SUBSIDIARIES, INCLUDING BUT NOT
LIMITED TO LIABILITY ARISING 0UT OF CONTRACT, TORT, BREACH OF WARRANTY,
INFRINGEMENT OR OTHERWISE SHALL NOT IN ANY EVENT EXCEED FORTY-FIVE THOUSAND
DOLLARS ($45,000). NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFITS, LOSS OR
INACCURACY OF DATA, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY SUCH DAMAGES, UNLESS THE
DAMAGE ARISES OUT OF MARKETLINK'S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREIN
OR MARKETLINK'S INTENTIONAL OR WILLFUL ACTS.
25. INDEMNIFICATION. Each party (the "Indemnifier" shall indemnify and
hold harmless the other party (the "Indemnifiee") from and against (and shall
reimburse the Indemnifiee on demand for any and all actual expenses, damages,
costs, losses, obligations and liabilities incurred by the Indemnifiee, or any
of its affiliated companies, agents, employees or other related parties,
incurred by the indemnifiee as a result of the acts or omissions of the
indemnifier under this Agreement, including, but not limited to, actions arising
out of the use of any information, and any and all claims, actions, suits,
proceedings, demands, assessments, penalties, obligations, judgements, costs,
and reasonable legal and other expenses incident to any of the foregoing or
incurred in investigating, defending or attempting to avoid the same, opposing
the imposition thereof or in enforcing this indemnity.
<PAGE>
26. AUTHORITY. Roman's and MarketLink hereby agree that this Agreement,
when executed and delivered by the parties hereto, will constitute a valid and
legally binding obligation of such parties, enforceable in accordance with its
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies Furthermore, each of the parties
hereto hereby represent that they have the due and valid authority required to
execute and carry out the terms and conditions contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives the day and year
above written.
MARKETLINK, INC.
By:
Its:
NOBLE ROMAN'S
By:
Its:
MASTER AGREEMENT
BETWEEN
PIONEER NEWSPAPERS
AND
MARKETLINK, INC.
THIS AGREEMENT is made this 15 day of May, 1995, between the Pioneer
Newspapers, Inc., a Washington corporation ("Pioneer") and MarketLink, Inc., a
Minnesota corporation ("MarketLink").
WHEREAS, MarketLink is in the business of providing interactive
multimedia systems for a variety of industries; and
WHEREAS, Pioneer is in the communications business, including the
publishing and printing of daily newspapers; and
WHEREAS, MarketLink and Pioneer would like to establish an interactive
audiotext system for the purposes of providing information over telephone lines
to the general public.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS.
a. Confidential Information. Confidential Information shall
consist of all information disclosed by the parties to each
other, including, but not limited to, the terms and conditions
of this Agreement, the System, MarketLink software and
hardware, the Database and sales, marketing and promotional
information.
b. Database. The Database shall consist of all startup
information and information collected by the System.
c. Enhancements. Enhancements shall include, but not be limited,
to modifying, upgrading, improving, altering or adding
software and or hardware, to the System.
d. Gross Revenues. The term "Gross Revenues" shall mean any and
all agreed upon remuneration for any use, direct or indirect,
of the System or its byproducts and any other revenues derived
from the System by Pioneer, including, but not limited to, any
and all consideration for sponsorships, access charges, call
fees, facsimile fees, contest fees and revenues generated by
the System's database. Gross Revenues shall be exclusive of
revenues generated by way of run of paper advertising, print
classified, niche publication or circulation. All sales
commissions paid by Pioneer for the sale of audiotext
advertising and sponsorship sales shall be subtracted from the
calculation of Gross Revenues, provided, however, that such
Commissions shall in no event exceed ten percent (10%) during
the first year of this Agreement and fifteen percent (15%)
thereafter. In addition, Gross Revenues shall be exclusive of
sales, use or other excise takes.
<PAGE>
e. System. The System shall mean MarketLink's software, hardware
and any accessories associated with providing the multimedia
service as contemplated hereunder.
2. INSTALLATION. The System will be installed at a mutually agreeable site to be
provided by Pioneer. The initial installation will consist of but not be limited
to, twelve (12) lines. At the time of the initial installation, and except as
otherwise provided on Exhibit A to this Agreement, MarketLink will make
available those System applications listed in Exhibit A.
3. TIMETABLE. Except as otherwise provided herein, the System will be installed
no later than ninety (90) days from the date of this Agreement, or such later
date as the parties may mutually agree.
4. RESPONSIBILITIES. During the term of this Agreement the parties shall have
the responsibilities outlined below:
a. MarketLink shall at its own expense:
i. Provide and maintain in proper working order all
necessary hardware and software required for the
operation of the System.
ii. Provide a 24 hour-a-day, toll free telephone number
for Pioneer to report any hardware or software
failure and investigate and seek to correct such
problems as soon as possible.
iii. Provide 24 hour on-line monitoring.
iv. Provide reasonable training for one or two System
operators.
v. Provide Pioneer access to a customer service
representative.
vi. Provide System Enhancements as necessary or
available.
vii. Provide reasonable marketing assistance in the
initial sale of sponsorships.
viii. Provide basic psychographic and demographic data
purchased from third parties. Provided, however, that
the cost of any other demographic or psychographic
information purchased from third parties shall be
subtracted from the calculation of Gross Revenues
under this Agreement.
ix. Provide Pioneer access to the System's basic mapping
capabilities.
b. Pioneer shall at its own expense:
i. Provide all marketing and sales services in
connection with the System and any advertising
available thereon, subject to paragraph 1(d) of this
Agreement.
ii Provide full administrative services in connection
with the System including, but not limited to, system
operators, billing and credit/collection.
iii Pay all telephone related expenses.
5. CONSIDERATION. As consideration for the products and services being provided
by MarketLink hereunder, Pioneer shall pay to MarketLink the sum of the
following (the "Consideration"):
<PAGE>
a. The greater of
i. XXXXXXXX of Gross Revenues or
ii. XXXXXXXX per month
b. In the event that the System is used for applications not
designed to produce specifically attributable revenues,
Pioneer shall pay MarketLink an amount which is reasonable and
which is mutually agreed upon by both of the parties to this
Agreement.
MarketLink shall have the right, itself or through its authorized
representatives upon at least twenty (20) days' prior written notice, to inspect
and copy the records of Pioneer related to the System during normal business
hours not more frequently than twice per year. If such inspections reveal an
underpayment to MarketLink of four percent (4%) or more, then the reasonable
cost associated with such inspection shall be borne by Pioneer. All information
gained by MarketLink or its authorized representatives from such inspection
shall be treated as Confidential Information under this Agreement.
6. PAYMENT TERMS. Payments of the Consideration shall be made by the 30th day of
each month for the Consideration owed to MarketLink for the previous month and
collected by Pioneer. Payments not received by the 30th day of each month shall
be considered late and subject to late fee equal to ten percent (10%) per annum
on any outstanding late balance.
7. ENHANCEMENTS. MarketLink shall provide all technological Enhancements to the
System as mutually agreed by MarketLink and the Pioneer. Any upgrades in
technology and the installation thereof, must meet with the satisfaction of
MarketLink, in its sole discretion.
8. TERM. The initial term (the "Initial Term") of this Agreement shall be for
three (3) years from the date hereof. The Agreement will be automatically
renewed for an additional one (1) year term unless either party provides written
notice of termination to the other party not less than 90 days prior to the
termination of the then current term.
9. EXCLUSIVITY. During the term of this Agreement, MarketLink agrees that it
will not, within Canyon County, Idaho or any of the immediately contiguous
counties of Idaho, sell or operate another newspaper interactive audiotext
system. For a period of one year from June 23, 1994, MarketLink agrees that it
will not, within each of the counties listed below, (the "Counties") and any
immediately contiguous counties within their respective states, sell or operate
a newspaper interactive audiotext system. The Counties are: Klamath County,
Oregon; Cache County, Utah; and Hill County, Montana. For a period of one year
from June 23, 1994, Pioneer operating locations within the Counties shall have
the exclusive option of entering into this same Agreement with MarketLink with
regard to their operating locations.
<PAGE>
10. CONFIDENTIALITY. Confidential Information shall not be disclosed by either
party to third persons without the other party's prior written consent. The
parties shall exercise at least the same degree of care with the Confidential
Information obtained from the other party as they normally exercise in
preserving their own Confidential Information of a similar nature. Upon
termination of this Agreement, each party shall, upon the request of the other,
return without change or destroy all copies of any Confidential Information
disclosed or provided to it by the other party. The obligations under this
paragraph shall indefinitely survive the termination or cancellation of this
Agreement. Obligations hereunder shall terminate with respect to any particular
portion of the Confidential Information.
a. when the receiving party can document that
i. it was in the public domain at the time of the
disclosing party's communication thereof to the
receiving party, or
ii. it entered the public domain through no action of the
receiving party or its employees subsequent to the
time of the disclosing party's communication thereof
to the receiving party, or
b. when it is communicated by the disclosing party to a third
party free of any obligation of confidence; or
c. upon obtaining the prior consent of the disclosing party.
11. CONFIDENTIAL MATERIALS. All materials, including without limitation,
documents, drawings, models, apparatus, sketches, designs, and lists, furnished
to the receiving party by the disclosing party shall remain the sole and
exclusive property of the disclosing party and nothing contained herein shall be
construed as giving the receiving party any license or rights with respect to
any information or materials which may be disclosed to the receiving party
including Confidential Information. The receiving party shall make no copies of
any Confidential Information without the prior written consent of the disclosing
party and the receiving party shall return to the disclosing party promptly at
its request all Confidential Information along with all copies made thereof and
all documents or things containing any portion of any Confidential Information.
12. INTELLECTUAL PROPERTY. During the term of this Agreement and thereafter,
MarketLink shall retain all right, title and interest to the System and any
Enhancements, inventions, discoveries, improvements, upgrades or alterations
thereof and all software developed in connection with the development, trial or
implementation of the services provided pursuant to this Agreement. During the
term of this Agreement and thereafter, MarketLink and Pioneer will jointly
retain all right, title and interest to the Database, and neither party may
disclose the database to any third party without the express approval of the
other party.
13. TANGIBLE PROPERTY. During the term of this Agreement and thereafter,
MarketLink shall retain all right, title, and interest to all tangible property
installed by MarketLink as part of the System, including but not limited to, all
hardware and any accessories associated with providing the multimedia service as
contemplated herein. During the term of this Agreement and thereafter,
MarketLink and Pioneer will jointly retain all right, title and interest to the
Database.
<PAGE>
14. WARRANTY. MARKETLINK'S OBLIGATIONS UNDER THIS AGREEMENT SHALL BE VALID AND
ENFORCEABLE ONLY IF THE SYSTEM IS USED IN THE WAY AND FOR THE PURPOSE
CONTEMPLATED BY THE PARTIES HERETO. PIONEER SHALL BE SOLELY RESPONSIBLE FOR ANY
AND ALL COSTS MADE NECESSARY BY ANY MISUSE OF THE SYSTEM, INCLUDING COSTS OF
MAINTENANCE OR REPAIRS RESULTING THEREFROM.
15. OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED ABOVE, NO EXPRESS OR IMPLIED
WARRANTY IS MADE WITH RESPECT TO THE PROGRAM OR GOODS OR SERVICES TO BE SUPPLIED
BY MARKETLINK OR ITS SUBSIDIARIES, IF ANY, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER
MARKETLINK NOR ANY OF ITS SUBSIDIARIES, IF ANY, WARRANTS THE RESULTS OF ANY
PROGRAM OR SERVICES OR THAT ALL ERRORS IN THE PROGRAM WILL BE CORRECTED, OR THAT
THE FUNCTIONALITY CONTAINED IN THE PROGRAM WILL MEET PIONEER'S REQUIREMENTS. IN
THE EVENT THAT THE PROGRAM OR SERVICES PROVIDED BY MARKETLINK DO NOT MATERIALLY
MEET THE SPECIFICATIONS LISTED IN EXHIBIT A, AND MARKETLINK CANNOT BRING THE
SYSTEM INTO COMPLIANCE WITH THE SPECIFICATIONS WITHIN SIXTY (60) DAYS OF
RECEIVING WRITTEN NOTICE OF MATERIAL NONCOMPLIANCE FROM PIONEER, PIONEER SHALL
HAVE THE OPTION TO TERMINATE THIS AGREEMENT IMMEDIATELY BUT NOT CLAIM FOR ANY
DAMAGES. ANY DISPUTES, CONTROVERSIES, OR DISAGREEMENTS UNDER THIS AGREEMENT
SHALL BE RESOLVED BY ARBITRATION TO BE CONDUCTED UNDER THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION ("ARBITRATION").
Such Arbitration shall be commenced by the sending of a written notice by the
aggrieved party to the other party, setting forth a statement of grievance. The
mailing of such notice shall commence arbitration, and the award or decision in
such arbitration shall be binding on all parties and not subject to appeal. Such
award or decision shall be entered as a judgment in such Court or Courts as may
have jurisdiction in that matter. Any controversy arising under this Agreement
shall be determined solely by such Arbitration procedure.
16. LIMITATION ON LIABILITIES. THE TOTAL LIABILITY, IF ANY, OF MARKETLINK AND
ITS SUBSIDIARIES, IF ANY, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT OF
CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT, OR OTHERWISE, SHALL BE
DETERMINED BY ARBITRATION AS DEFINED IN SECTION 15 ABOVE.
17. INDEMNIFICATION. Both parties to this Agreement shall indemnify and hold the
other harmless from and against any and all actual expenses, damages, costs,
losses, obligations and liabilities incurred by the party for any action arising
out of or relating to the acts of the other party, or any of said other party's
affiliated companies, agents, employees or other related parties under this
Agreement including but not limited to any and all claims, actions, suits,
proceedings, demands, assessments, penalties, obligations, judgments, costs and
reasonable legal and other expenses incident to any of the foregoing incurred
and investigating, defending or attempting to avoid the same, opposing the
imposition thereof or in enforcing this indemnity.
<PAGE>
18. ASSIGNMENT. Either party may assign this Agreement to any wholly-owned
subsidiary, parent corporation or any of its parent's wholly-owned subsidiaries
without the consent of the other party, provided that the assigning party shall
remain liable for and will guarantee its assignee's performance, including
payment of all monies, under this Agreement. Subject to these restrictions, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their permitted assigns. No other assignment of this Agreement
shall be permitted without the express prior written consent of the
non-assigning party.
19. FORCE MAJEURE. Neither party nor its affiliates, subsidiaries,
subcontractors, parent corporation, if any, or any of its parent's affiliates or
subsidiaries, if any, shall be liable in any way for delay, failure in
performance, loss or damage due to force majeure conditions beyond such parties'
reasonable control, including but not limited to: Fire, strike, embargo,
explosion, power blackout, earthquake, volcanic action, flood, war, water, the
elements, labor disputes, civil or military authority, acts of God, public
enemy, inability to secure raw materials, inability to secure products, or acts
or omissions of carriers.
20. OTHER EVENTS OUTSIDE PARTIES CONTROL. Neither party nor its affiliates,
subsidiaries, subcontractors, parent corporation or any of its parent's
affiliates or subsidiaries, if any, shall be liable in any way for delay,
failure in performance, loss or damage due to conditions beyond such parties'
reasonable control, including but not limited to telephone line outage or any
acts or omissions of telephone companies.
21. DEFAULT. Upon any breach or default by a party to this Agreement, the other
party may notify such partY of the breach or default in writing. Failure of the
other partY to cure any breach or default within thirty (30) days after the
effective date hereunder of such notice shall entitle the other party to
terminate its own performance of this Agreement and exercise any or all legal
remedies available to it at law or in equity.
22. NOTICES. All notices required by this Agreement shall be in writing and
shall be sent by overnight delivery or certified mail, return receipt requested,
prepaid and addressed as follows:
To MarketLink: President/CEO
MarketLink, Inc
10340 Viking Drive, Suite 150
Eden Prairie, MN 55344
To Pioneer David R. Lord
Pioneer Newspapers
221 First Avenue West, Suite 405
Seattle, WA 98119
<PAGE>
Notices shall be effective upon receipt or three (3) days after mailing,
whichever occurs earlier. Each party is responsible for reporting, in writing,
any change of address.
23. WAIVER. No consent or waiver by either party of any breach or default by the
other party under this Agreement shall be effective unless such consent or
waiver is set forth in a written instrument signed by the non-breaching party.
The failure of a party to enforce at any time any of the provisions of this
Agreement shall in no way be construed to be a waiver of any such provision, nor
in any way shall it affect the validity of this Agreement, or any part hereof or
the right of any party to enforce each and every provision hereof. No waiver of
any breach of this Agreement shall be held to be a waiver of any other or
subsequent breach hereunder.
24. SURVIVAL. The provisions of sections 10, 11, 12, 13, 14, 15, 16 and 17
hereunder and any other provision of this Agreement, which by its sense and
context, is intended to survive performance by either or both parties shall so
survive the termination or cancellation of this Agreement.
25. SEVERABILITY. In case any one or more of the provisions of this Agreement
shall, for any reason, be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any response, such invalidity, illegality
or unenforceability shall not affect any other provision of this Agreement. Such
provision or provisions shall be ineffective only to the extent of such
invalidity, illegality or unenforceability without invalidating the remainder of
such provision or provisions or the remaining provisions of this Agreement. This
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein, unless the deletion of
such provision or provisions would result in such a material change as to cause
performance by a party to be unreasonable, in which case, the parties shall
negotiate a replacement.
26. SECTION HEADINGS. The headings of the sections hereunder are for convenience
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
27. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. Amendments, modifications,
supplements or changes to this Agreement, including extensions or cancellations
of the term, must be in writing and signed by a duly authorized representative
of the party against whom such amendments, modifications and supplements are
sought to be enforced.
28. FINANCIAL STATEMENTS. MarketLink shall provide Pioneer with a copy of its
annual audited financial statements in a timely manner following their
completion.
29. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Minnesota.
30. ENTIRE AGREEMENT. The terms and conditions of this Agreement constitute the
entire Agreement and understanding between the parties with respect to the
subject matter hereof. Prior written or oral agreements, proposals or
understandings between the parties on the same or related subject are hereby
superseded and replaced in all respects by the terms contained herein.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers or representatives the day and year above
written.
PIONEER NEWSPAPERS, INC.
By:
Its:
MARKETLINK, INC.
By:
Its:
<PAGE>
EXHIBIT A
INITIAL SYSTEM APPLICATIONS
Basic System Features
* Information Categories and Feeds as provided by a National Feed Service
* Broadcast Facsimile
* Facsimile on Demand
* Direct Call Transfer to Internal Voice Mail
* Direct Call Transfer to Third Party
* Credit Card Fulfillment Capability
* Edit Station for Local Programming
* Called Identification (WHEN AVAILABLE)
Interactive Classified Applications which will be delivered pending final design
development scheduling.
* Employment
* Real Estate
* Used Automobiles
<PAGE>
AMENDMENT 1
to
AGREEMENT BETWEEN PIONEER NEWSPAPERS, INC.
and
MARKETLINK, INC.
This Amendment 1 to the Agreement between Pioneer Newspapers ("Pioneer") and
MarketLink, Inc. ("MarketLink") dated May 15, 1995, which provided for the
installation and use of a MarketLink system at the Idaho Press Tribune at Nampa,
ID, is being made to incorporate the understanding of the parties for the
addition of two VNN Spanish language categories requested by Pioneer. The
additional cost for the requested categories is One Hundred Dollars ($100.00)
per month.
Section 5.a. of the Agreement, "Consideration", states, Pioneer shall pay
MarketLink:
The greater of
i. XXXXXXXX of Gross Revenues or
ii. XXXXXXXX per month.
To reflect the addition of the requested categories Section 5.a. of the
Agreement is changed to read:
The greater of
i. XXXXXXXX of Gross Revenues or
ii. XXXXXXXX per month.
This change to Section 5.a. is effective November 1, 1995.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 1 to be
executed by their duly authorized officers or representatives.
PIONEER NEWSPAPERS, INC. MARKETLINK, INC.
By: By:
Its: Its:
Date: Date:
AGREEMENT
BETWEEN
THE HEARST CORPORATION
AND
MARKETLINK, INC.
THIS AGREEMENT made this 20th day of July, 1995, (the "Agreement") is
between The Hearst Corporation, a Delaware corporation d/b/a Houston Chronicle
Publishing Co. ("Chronicle"), and Marketlink, Inc., a Minnesota corporation
("MarketLink").
WHEREAS, Chronicle is in the business of publishing and printing a
daily newspaper for the greater Houston metropolitan area; and
WHEREAS, MarketLink is in the business of providing interactive
multimedia systems for a variety of industries; and
WHEREAS, Chronicle wishes to lease from MarketLink an interactive
audiotext system for the purposes of providing information over telephone lines
to the general public.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS.
a. Confidential Information. Confidential Information shall consist of
all information disclosed by the parties to each other, including, but
not limited to, the terms and conditions of this Agreement and the
System.
b. Enhancements. Enhancements shall include, but not be limited to,
modifications, upgrades, improvements, alterations or additions to
software and/or hardware to the System which have been mutually agreed
upon in writing by the parties to this Agreement.
c. System. The System shall mean the 96 line UNIX based system
including, but not limited to, the software, hardware and any
associated accessories furnished by MarketLink, which provides the
service as contemplated hereunder. The System shall include the 48 line
UNIX based system acquired by Chronicle from The Houston Post and a
further 48 lines added by MarketLink. Upon installation MarketLink
shall hold title to the entire System.
2. MARKETLINK RESPONSIBILITIES. During the term of this Agreement MarketLink
shall have the responsibilities outlined below.
a. Perform covered maintenance which shall consist of (i) the periodic
maintenance MarketLink deems reasonably appropriate and necessary to
keep the System operating and, (ii) all on-call remedial maintenance
performed by MarketLink or a designated service provider, including,
but not limited to, the following:
i. Parts and labor for the hardware.
<PAGE>
ii. Twenty-four (24) hours a day, seven (7) days a week
on-site service, if required.
iii. Twenty-four (24) hours a day, seven (7) days a week
telephone number to report problems.
iv. Use of best efforts to have a response time of not more
than four (4) hours from the time a problem is reported to
MarketLink.
b. Exclusions from Covered Maintenance include:
i. Maintenance of accessories, attachments, supplies or other
devices which are not part of the System.
ii. Repair of damage not caused by MarketLink, including
without limitation, power, air conditioning or humidity
control, telephone equipment or communication lines failure or
causes resulting from other than ordinary use.
iii. Maintenance resulting from uses of the System other than
those contemplated by the parties hereto.
c. Provide three (3) hours per month of help desk service to Chronicle
during normal business hours.
d. Provide Enhancements as agreed upon by Chronicle and MarketLink.
e. Maintain the performance of the System to meet the reasonable
expectations of the parties.
3. INSTALLATION. Installation of the System will be completed within Ninety (90)
days of the date of the execution of this Agreement or receipt by MarketLink at
its headquarters of the 48 line UNIX based system acquired by Chronicle from The
Houston Post.
4. TERM. The initial term of this Agreement shall be for thirty-six months from
the date of installation of the System at a location designated by Chronicle. If
notice of intent to cancel this Agreement at the end of the initial, or any
subsequent terms, is not given by either party to the other, in writing, not
less than One Hundred Twenty (120) days prior to the end of the term, this
Agreement would renew automatically for up to three additional one year terms.
5. CONSIDERATION. As consideration for the lease of the System and related
services Chronicle shall pay to MarketLink the sum of the following (the
"Consideration").
a. As consideration for the lease of the System and related services
Chronicle shall pay MarketLink the sum of the following (the
"Consideration"):
i. XXXXXXXXXXX per calendar quarter.
<PAGE>
ii. XXXXXXXXXXXXX per calendar quarter for the maintenance and
help desk service as specified in Sections 2.a and 2.c.
iii. XXXXXXXXXXXXXXX per hour for hours of service in excess
of the three per month or outside of normal business hours
provided under Section 2.c.
iv. XXXXXXXXXXXXXXXX per hour for all development,
programming, testing and installation provided under Section
2.d., plus directly related out of pocket costs.
v. Additional or replacement hardware associated with the
implementation of Enhancements provided under Section 2.d.
will be invoiced either in amounts previously agreed upon or
at MarketLink's standard pricing.
b. If the System is unable to process calls for a period of more than
forty eight hours in any calendar month within the term of this
Agreement, the Consideration to be paid pursuant to Sections 5.a.i. and
5.a.ii. shall be reduced by XXXXXXXXXXXXX per hour for each hour it is
unable to process calls.
6. PAYMENT TERMS. Upon the execution of this Agreement, Chronicle shall pay to
MarketLink a deposit of Sixteen Thousand Five Hundred Dollars ($16,500.00). This
deposit shall be applied to the Consideration due for the first calendar quarter
of this Agreement under Section 5.a.i. Payments due under Sections 5.a.i. and
5.a.ii. shall be received by MarketLink on or before the first day of each
calendar quarter. Payments under Sections 5.a.iii., 5.a.iv. and 5.a.v. shall be
made to MarketLink within Fifteen (15) days of Chronicle receiving an invoice
from MarketLink. If the programming, testing and installation provided under
Section 2.a.iv. is estimated to be in excess of Twenty Five (25) hours
MarketLink will invoice one half of the estimated total cost following the
agreement to proceed with the Enhancement and the balance will be invoiced upon
completion of the Enhancement. Payments due, but not received within ten days of
the dates specified in this Section, shall be considered late and subject to a
late fee equal to one and one half percent (1.5%) per month, or such lower rate
imposed by law, on any outstanding late balance.
7. CONFIDENTIALITY. Confidential Information shall not be disclosed by either
party to third persons without the other party's prior written consent. The
parties shall exercise at least the same degree of care with the Confidential
Information obtained from the other party as they normally exercise in
preserving their own Confidential Information of a similar nature. Upon
expiration or termination of this Agreement, each party shall, upon the request
of the other, return, without charge, or destroy all copies of any Confidential
Information disclosed or provided to it by the other party. The obligations
under this paragraph shall indefinitely survive the termination or cancellation
of this Agreement. Obligations hereunder shall terminate with respect to any
particular portion of the Confidential Information:
<PAGE>
a. when the receiving party can document that:
i. it was in the public domain at the time of the disclosing
party's communication thereof to the receiving party; or
ii. it entered the public domain through no action of the
receiving party or its employees subsequent to the time of the
disclosing party's communication thereof to the receiving
party; or
b. when it is communicated by the disclosing party to a third party
free of any obligation of confidence; or
c. upon obtaining the prior consent of the disclosing party.
8. CONFIDENTIAL MATERIALS. All materials, including without limitation,
documents, drawings, models, apparatus, sketches, designs, and lists, furnished
to one party by another party shall remain the sole and exclusive property of
the disclosing party and nothing contained herein shall be construed as giving
the receiving party any license or rights with respect to any information or
materials which may be disclosed to the receiving party including Confidential
Information. The receiving party shall make no copies of any Confidential
Information without the prior written consent of the disclosing party and the
receiving party shall return to the disclosing party promptly at its request all
Confidential Information along with all copies made thereof and all documents or
things containing any portion of any Confidential Information.
9. OWNERSHIP. During the term of this Agreement and thereafter, MarketLink shall
retain all right, title and interest to the System. Notwithstanding the
foregoing, the rights to software developments and enhancements paid for by
Chronicle hereunder may be used by either party.
10. WARRANTY. MarketLink's obligations under this Agreement shall be valid and
enforceable only if the system is used in the way and for the purpose
contemplated by the parties hereto. The Chronicle shall be solely responsible
for any and all costs made necessary by any use or misuse of the system,
including costs of maintenance or repairs resulting therefrom.
11. OTHER WARRANTIES. Except as expressly provided herein, no express or implied
warranty is made with respect to the program or goods or services to be supplied
by MarketLink or its subsidiaries, if any, including without limitation, any
implied warranty of merchantability or fitness for a particular purpose. Neither
MarketLink nor any of its subsidiaries, if any, warrants the results of any
program or services or that all errors in the program will be corrected or that
the functionality contained in the program will meet Chronicle's requirements.
The total liability for any breach of warranty by MarketLink shall not in any
event exceed Ten Thousand Dollars ($10,000.00).
<PAGE>
12. LIMITATION ON LIABILITIES. Except as otherwise provided herein, the total
liability, if any, of MarketLink and its subsidiaries, if any, under this
Agreement, including, but not limited to, liability arising out of contract,
tort, infringement or otherwise shall not in any event exceed Fifty Thousand
Dollars ($50,000.00). Notwithstanding the foregoing, this limitation on
liabilities shall not limit Chronicle's ability to recover payments made to
MarketLink under Section 5.a.iv.
13. INDEMNIFICATION. Each party (the "Indemnifier") shall indemnify and hold
harmless the other party (the "Indemnifiee") from and against (and shall
reimburse the Indemnifiee on demand for) any and all actual expenses, damages,
costs, losses, obligations, and liabilities incurred by the Indemnifiee, for any
actions arising out of or related to the acts of the Indemnifier or any of its
affiliated companies, agents, employees or other related parties under this
Agreement, including, but not limited to, actions arising out of the use of any
information, and any and all claims, actions, suits, proceedings, demands,
assessments, penalties, obligations, judgments, costs, and reasonable legal and
other expenses incident to any of the foregoing or incurred in investigating,
defending or attempting to avoid the same, opposing the imposition thereof or in
enforcing this indemnity.
14. ASSIGNMENT. Either party may assign this Agreement to any wholly-owned
subsidiary, parent corporation or any of its parent's wholly-owned subsidiaries
without the consent of the other party, provided that such assigning party shall
remain liable for and will guarantee its assignee's performance, including
payment of all monies, under this Agreement. Subject to these restrictions, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties and their permitted assigns. No other assignment of this Agreement
shall be permitted without the express prior written consent of the
non-assigning party.
15. FORCE MAJEURE. Neither party nor its affiliates, subsidiaries,
subcontractors, parent corporation, if any, or any of its parent's affiliates or
subsidiaries, if any, shall be liable in any way for delay, failure in
performance, loss or damage due to force majeure conditions beyond such parties'
reasonable control, including but not limited to: Fire, strike, embargo,
explosion, power blackout, earthquake, volcanic action, flood, war, water, the
elements, labor disputes, civil or military authority, acts of God, public
enemy, inability to secure raw materials, inability to secure products, or acts
or omissions of carriers.
16. OTHER EVENTS OUTSIDE PARTIES CONTROL. Neither party nor its affiliates,
subsidiaries, subcontractors, parent corporation or any of its parent's
affiliates or subsidiaries, if any, shall be liable in any way for delay,
failure in performance, loss or damage due to conditions beyond such parties'
reasonable control, including but not limited to telephone line outage or any
acts or omissions of telephone companies.
17. DEFAULT. Upon any breach or default by a party to this Agreement, the other
party may notify the breaching or defaulting party of the breach or default in
writing. Failure of the breaching or defaulting party to cure any breach or
default within Thirty (30) days after the effective date hereunder of such
notice shall entitle the other party to terminate its own performance of this
Agreement and exercise any or all remedies available to it at law or in equity.
Notwithstanding the foregoing, Chronicle shall provide MarketLink with Sixty
(60) days additional notice prior to terminating this Agreement as a result of
MarketLink's failure to meet its responsibilities required under Section 2.e.
above.
<PAGE>
18. NOTICES. All notices required by this Agreement shall be in writing and
shall be sent by overnight delivery or certified mail, return receipt requested,
prepaid and addressed as follows:
To Chronicle: Ms. Joycelyn Marek
Houston Chronicle Publishing Co.
801 Texas Avenue
Houston, Texas 77002
To MarketLink: President/CEO
MarketLink, Inc.
10340 Viking Drive, Suite 150
Eden Prairie, MN 55344
Notices shall be effective upon receipt or three (3) days after mailing,
whichever occurs earlier. Each party is responsible for reporting, in writing,
any change of address.
19. WAIVER. No consent or waiver by either party of any breach or default by the
other party under this Agreement shall be effective unless such consent or
waiver is set forth in a written instrument signed by the non-breaching party.
The failure of a party to enforce at any time any of the provisions of this
Agreement shall in no way be construed to be a waiver of any such provision, nor
in any way shall it affect the validity of this Agreement, or any part hereof,
or the right of any party to enforce each and every provision hereof. No waiver
of any breach of this Agreement shall be held to be a waiver of any other or
subsequent breach hereunder.
20. SURVIVAL. The provisions of Sections 7, 8, 9, 10, 11, 12 and 13 herein and
any other provision of this Agreement, which by its sense and context, is
intended to survive performance by either or both parties shall so survive the
termination or cancellation of this Agreement.
21. SEVERABILITY. In case any one or more of the provisions of this Agreement
shall, for any reason, be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement. Such
provision or provisions shall be ineffective only to the extent of such
invalidity, illegality or unenforceability without invalidating the remainder of
such provision or provisions or the remaining provisions of this Agreement. This
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein, unless the deletion of
such provision or provisions would result in such a material change as to cause
performance by a party to be unreasonable, in which case, the parties shall
negotiate a replacement.
22. SECTION HEADINGS. The headings of the sections hereunder are for convenience
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
<PAGE>
23. AMENDMENTS, MODIFICATIONS AND SUPPLEMENTS. Amendments, modifications,
supplements or changes to this Agreement, including extensions of the term, must
be in writing and signed by a duly authorized representative of the party
against whom such amendments, modifications and supplements are sought to be
enforced.
24. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Minnesota.
25. ENTIRE AGREEMENT. The terms and conditions of this Agreement constitute the
entire Agreement and understanding between the parties with respect to the
subject matter hereof. Prior written or oral agreements, proposals or
understandings between the parties on the same or related subject including, but
not limited to, the Prior Agreement are hereby superseded and replaced in all
respects by the terms contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers or representatives the day and year above
written.
THE HEARST CORPORATION D/B/A MARKETLINK, INC.
HOUSTON CHRONICLE PUBLISHING CO.
By: By:
Its: Its:
