Exhibit 10.17
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
MOVER'S GUIDE-TM-
I. PARTIES
This agreement, including all attachments (the "Agreement"), sets forth the sole
and exclusive terms and conditions governing the relationship between
▇▇▇▇▇▇▇▇▇.▇▇▇ ("Sponsor" or "Advertiser") and Targeted Marketing Solutions, Inc.
d/b/a Imagitas ("'Imagitas"), regarding Sponsor's participation in the official
United States Postal Service Mover's Guide-TM- (-C- 1998 Targeted Marketing
Solutions, Inc.), as defined below for the product Category (the "Category") of:
Household Furniture.
II. BACKGROUND
Imagitas has developed a booklet called the Mover's Guide-TM- (the "MG"), for
reaching people that are moving and Imagitas owns all copyrights and trademarks
associated with the MG other than any copyrights or trademarks associated with
the advertisements placed by the advertisers in the MG.
The MG contains the United States Postal Service ("USPS") change of address
forms, certain editorial information that may be helpful to people changing
residences, and moving-related advertisements.
Imagitas will produce the MG and distribute copies of it primarily through post
offices and/or through other USPS distribution channels (i.e. letter carriers,
USPS Material Distribution Centers).
Imagitas will use reasonable commercial efforts to print and distribute the MG
with Sponsor's advertisement through United States Post Offices, subject to the
terms and conditions of this Agreement.
III. CATEGORY DEFINITION; EXCLUSIVITY
One category(s) is being solicited for The Mover's Guide: Household Furniture.
The following category rights and product features are included in the
solicitation:
A. HOUSEHOLD FURNITURE CATEGORY
CATEGORY RIGHTS
The exclusive right to advertise Household Furniture, which includes the
following:
- tables, chairs, beds, sofas, china cabinets, desks, dressers,
bureaus, armoires, credenzas, wall units, shelving units,
sideboards, toy chests, lamps, mirrors
The non-exclusive right to advertise the sub-categories listed below are
guaranteed, though potentially shared (other retailers or manufacturers may also
have rights to advertise items in these sub-categories):
- wall decor
- area rugs and other floor coverings
The Household Furniture category EXCLUDES, but not limited to, the
sub-categories listed below:
- Linens (bed, including pillows; and bath)
- Home Accessories (window coverings, kitchenware, tabletop)
- Appliances (large and small kitchen appliances)
- Electronics (TV, VCR, stereo, computers)
- Light fixtures
The conditional right to advertise:
- Mattresses
- Box Springs.
(The conditional ability to advertise the sub-categories listed above,
along with other sponsors that may have this conditional right, until
these sub-categories have been awarded to another advertiser in
accordance with the Fair Solicitation Policy. When these conditional
sub-categories are ready to be sold, Sponsor will have an opportunity
to purchase these categories in accordance with the Fair Solicitation
Process.)
Competing furniture retailers will not be solicited for other categories. Based
on Imagitas' due diligence, this would exclude any potential sponsors whose core
business is Household Furniture (as defined by the exclusive rights granted in
this solicitation) and that Household Furniture (as defined by the exclusive
rights granted in this solicitation) accounts for 50% or more of their revenue.
MG FEATURES:
- one page of advertising in the Mover's Guide
NOTE: Only one creative execution per print run is possible within a purchased
geography (currently three print runs per year).
2
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
B. EXCLUSIVITY RIGHTS
A Sponsor that elects to participate in the Sponsorship program and that is
awarded a Category(s) shall be entitled to those exclusive rights within the
Category(s) awarded as are specified above in those MGs in which Sponsor's
advertisement appears.
C. CO-OPERATIVE ADVERTISING
Subject to Imagitas' prior written consent, which shall not be unreasonably
withheld, Sponsor shall have the right to include other Household Furniture
manufacturers or retailers as part of its advertisement that does not conflict
with another Mover's Guide category, as determined by Imagitas.
D. RESEARCH
Subject to its reasonable approval, Imagitas will include a Sponsor question
quarterly in Imagitas monthly Usage and Attitude tracking study.
IV. PURCHASE TERMS AND CONDITIONS
Imagitas hereby agrees to sell to Sponsor, and Sponsor hereby agrees to purchase
from Imagitas advertising space in the MG for the term of this Agreement,
subject to the terms and conditions set forth in this Agreement. Sponsor agrees
to the following purchase terms and conditions:
QUANTITY: Dependent upon Sponsor's selection below (see "Estimated Households
Reached Per Year" now in Bidding Chart for estimated quantity). Sponsor's
advertisement to be included in one (1) year of print runs (there are currently
three print runs per year). Please see Attachment A for further information
concerning distribution of the MG.
TIMING: Beginning approximately December 1, 1999, this date may shift at
Imagitas' discretion if the signed contract is not received forty-five (45) days
prior to the start date.
PAYMENT SCHEDULE: [**] deposit due with executed Agreement; 33% due 12/1/99; 33%
due 4/1/00, and remaining balance due 8/l/00.
In addition to the other terms, conditions and limitations set forth herein,
Imagitas' obligation to sell Sponsor the requested advertising space is
conditioned upon receipt by Imagitas of a copy of this Agreement executed by
Sponsor and a deposit as specified above. Imagitas will invoice Sponsor for the
remaining payment or payments 30 days in advance of payment due date. If upon
the expiration of
3
this Agreement, Sponsor's payments (including deposit) exceed the purchase
price, Imagitas will refund the amount of overpayment within forty-five days of
the expiration of this Agreement.
Final Specifications for the product are included in Attachments C and D of this
Agreement, which shall supersede all other specifications previously stated.
Imagitas reserves the right to amend and supplement the specifications set forth
in Attachment D during the term of this Agreement based upon Imagitas'
reasonable commercial needs.
Any competing bids will be dealt with by Imagitas in a manner consistent with
the Fair Solicitation Policy mandated by the USPS contained in Attachment B of
this Agreement.
V. TERM
This Agreement shall terminate (i) on the date at which all MGs containing
Sponsor's advertising (i.e. one (1) year of print runs, approximate quantity
depending upon the territory selected, as specified in chart below) have been
distributed pursuant to the terms herein, or (ii) upon thirty (30) days prior
written notice from Imagitas due to a material change in or termination of
Imagitas' Agreement with the USPS governing the MG program.
VI. STANDARD LEGAL TERMS AND CONDITIONS
Sponsor agrees to be bound by the Standard Legal Terms and Conditions
(Attachment A to this Agreement and incorporated in this Agreement by this
reference).
VII. SPONSOR PARTICIPATION
REGIONAL ZONES:
/ / ALL ZONES LISTED BELOW Approximately 7,998,000 copies; estimated
2,674,000 households per year
/ / BOSTON ZONE Approximately 1,379,000 copies;
Counties: estimated 460,000 households per year
(MA) Barnstable, Bristol, Dukes, Essex,
Middlesex, Nantucket, Norfolk,
Plymouth, Suffolk, Worcester
(NH) Hillsboro, Rockingham
(RI) Bristol, Kent, Newport,
Providence, Washington
4
/ / CHICAGO ZONE Approximately 1,625,000 copies;
Counties: estimated 547,000 households per year
(IL) ▇▇▇▇, DeKalb, DuPage, Grundy,
Iroquois, ▇▇▇▇, Kankakee, Kendall,
LaSalle, Lake, McHenry, Will
(IN) Jasper, LaPorte, Lake, Newton,
Porter
/ / DALLAS ZONE Approximately 1,372,000 copies;
Counties: estimated 458,000 households per year
(TX) Anderson, Bosque, Collin,
Comanche, ▇▇▇▇▇, ▇▇▇▇▇▇, Delta,
Denton, Ellis, Erath, Fannin, Freestone,
Hamilton, Henderson, Hill,
Hood, Hopkins, ▇▇▇▇, ▇▇▇▇, Johnson,
Kaufman, Lamar, Navarro, Palo Pinto,
Parker, Rains, Rockwell, Somervell,
Tarrant, VanZands, Wise
/X/ SAN FRANCISCO ZONE Approximately 1,391,000 copies;
Counties: estimated 464,000 households per year
(CA) Alameda, Contra Costa, Lake,
Marin, Naps, San Francisco, San
Mateo, Santa ▇▇▇▇▇, ▇▇▇▇▇▇ West,
Sonoma
/X/ SEATTLE ZONE Approximately 1,101,000 copies;
Counties: estimated 367,000 households per year
(WA) Island King, Kitsop, Mason,
Pierce, Skagit, Sachomish, ▇▇▇▇▇▇▇▇,
Whatcom
/ / WASHINGTON DC ZONE Approximately 1,130,000 copies; estimated
Counties: 378,000 households per year
(MD) Allegany, Calvert, Charles,
Frederick, Montgomery, Prince ▇▇▇▇▇▇,
St. Marys, Washington DC
(PA) Franklin
(VA) Arlington, Berkeley, Clarke,
Culpeper, Fairfax, Fauquiot, ▇▇▇▇▇▇▇▇▇,
Hampshire, Hardy, King ▇▇▇▇▇▇,
Loudoun, Mineral, ▇▇▇▇▇▇, ▇▇▇▇,
Prince ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇-▇▇▇▇▇▇▇, Shenandoah,
Spotsylvania, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇
5
Bidding Chart:
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Estimated Households
Regional Zone Reached Per Year Minimum Bid per HH Sponsor's Bid
All Zones Listed Below 2,674,000 $0.075 $____________HH
Boston 460,000 $0.085* $____________HH
Chicago 460,000 $0.085* $____________HH
Dallas 458,000 $0.085* $____________HH
San Francisco 464,000 $0.085* [**]/HH
Seattle 367,000 $0.085 [**]/HH
Washington DC 378,000 $0.085* $____________HH
* The base minimum bid is $0.085 per estimated household reached. Discount
may apply based on total move volume of zones won by the bidder as per the
chart to the right. Please note that discounts will not apply to the
extent they result in a net price below the base minimum bid price less
the volume discount.
Est. HH's Reached Volume
(in millions) Discount
LESS THAN 1.5 0%
1.5 - 3.0 10%
Once Imagitas receives a signed copy of this Agreement and the required deposit
(via registered mail, overnight delivery, fax (▇▇▇-▇▇▇-▇▇▇▇) or hand delivery to
▇▇▇▇▇ ▇▇▇▇▇, CFO, Imagitas, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
02464-1440) constituting Sponsor's offer to participate in the MG program for
the specified category, Imagitas will notify Sponsor whether Imagitas is able to
countersign the Agreement (see Attachment B, "Advertising Fair Solicitation
Policy," for additional information and Sponsor obligations regarding space
availability and the fair solicitation process).
6
Agreed and Accepted by: Agreed and Accepted by:
Targeted Marketing Solutions, Inc.
Company: ▇▇▇▇▇▇▇▇▇.▇▇▇ d/b/a Imagitas
Signature: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Signature: /s/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------- -----------------------------------
Title: VP MARKETING Title: VICE PRESIDENT, CFO
---------------------------------------- -----------------------------------
Date: 8/20/99 Date: 8/25/99
---------------------------------------- --------------------------------------------
ATTACHMENT A: STANDARD LEGAL TERMS FOR THE MOVER'S GUIDE
I. CONFIDENTIALITY
Imagitas agrees not to disclose to third parties, other than its own authorized
agents and representatives on a strict need to know basis, any information or
data provided by Sponsor that is marked or otherwise explicitly designated as
confidential. Sponsor agrees not to disclose to third parties, other than its
own authorized agents and representatives on a strict need to know basis, any
information regarding this Agreement, the MG or any aspects of its production
and distribution including, without limitation, economic, competitive, marketing
or business information. Notwithstanding the foregoing, information that is or
becomes publicly available without breach of this Agreement shall not be deemed
confidential. Sponsor further agrees not to promote the MG to the public in any
way without the prior written approval of Imagitas, which approval shall not be
unreasonably withheld.
Each party will submit to the other party, for its prior written approval, which
shall not be unreasonably withheld or delayed, any marketing, advertising, press
releases, and all other promotional materials related to the Mover's Guide that
reference the other Party and/or its trade names, trademarks, and service marks
(the "Materials"). In addition to the approval rights specified in the preceding
sentence, each party shall solicit and reasonably consider the views of the
other Party in designing and implementing such Materials. Once approved, the
Materials (other than press releases) may be used by either the Sponsor or
Imagitas for the purpose of promoting the program and re-used for such purpose
until such approval is withdrawn with reasonable prior notice.
Neither party to this Agreement shall be entitled to obtain access from the USPS
to the names of movers who are to receive or have received the MG.
II. RESTRICTIONS
Neither party may assign any of its rights under this Agreement without the
prior written approval of the other party. Sponsor acknowledges that it has read
and hereby agrees to be bound by the policies,
7
standards, specifications, due dates and other requirements (collectively, the
"Rules") set forth herein and in the Attachments to this Agreement, as amended
or supplemented in writing from time to time by Imagitas. Sponsor agrees that
(i) Imagitas shall have the right to reject any advertisement that does not
comply with the Rules, and (ii) Sponsor is not entitled to any refund or order
cancellation if it is unable to use any portion of its advertising space due to
its failure to timely submit advertisements and data in compliance with the
Rules.
III. INDEMNIFICATION
Imagitas agrees to indemnify, hold harmless and defend both the USPS and
Sponsor, their officers, directors, agents, employees and authorized
representatives from and against any and all damages, loss, cost, liability,
expense, claims, demands, causes of action and judgments, arising from: (1) the
negligence or willful misconduct of Imagitas; or (2) Imagitas' breach of any
representation or warranty contained in this Agreement.
Sponsor agrees to indemnify, hold harmless and defend both the USPS and
Imagitas, their officers, directors, agents, employees, affiliates and
authorized representatives from and against any and all damages, loss, costs,
liability, expense (including reasonable attorney's fees and costs), claims,
demands, causes of action and judgments, arising from or relating to: (1)
Sponsor's advertisement or promotion of any product or service in the MG; (2)
Sponsor's breach of any representation or warranty contained in this Agreement;
or (3) Sponsor's participation in the MG program, including, without limitation,
any claims of false or misleading advertising, unfair competition, copyright
violation, trademark infringement or dilution, libel or slander, invasion of
privacy/publicity and product liability (including both product liability claims
relating to delivery and/or recall of Sponsor's products to consumers or any
other product liability claim related to Sponsor's participation in the MG
program).
IV. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
Sponsor hereby represents and warrants to Imagitas that Sponsor has the full
power to enter into this Agreement; that all corporate actions and approvals
have been taken which are necessary to make this Agreement a binding and
enforceable obligation of Sponsor; and that Sponsor's execution, delivery and
performance of this Agreement is not in conflict with, and will not cause an
event of default under, any agreement or instrument to which Sponsor is bound.
Sponsor further represents and warrants that any materials or data that Sponsor
provides to Imagitas for inclusion in the advertising space purchased by Sponsor
shall be material that Sponsor has the full right to publish/include and have
published/included in the MG, and Imagitas' publishing of such material shall
not constitute an infringement of any other party's personal or proprietary
rights, including, but not limited to, any rights under patent, copyright and
trademark laws and any rights of privacy or publicity. No materials provided by
Sponsor for inclusion in the MG shall be in violation of any law, rule or
regulation. To the extent that any Sponsor materials are factual in nature, such
materials will be factually accurate; to the extent that Sponsor
8
makes any promises or representations in its materials, Sponsor will fully
perform such promises and representations.
Imagitas hereby represents and warrants to Sponsor that Imagitas has the full
power to enter into this Agreement; that all corporate actions and approvals
have been taken which are necessary to make this Agreement a binding and
enforceable obligation of Imagitas; that by entering into this Agreement
Imagitas is not in default of any obligation to any third party; and that
Imagitas' execution, delivery and performance of this Agreement is not in
conflict with, and will not cause an event of default under any agreement or
instrument to which Imagitas is bound. Imagitas further represents and warrants
that it has an agreement with the USPS pursuant to which Imagitas has the right
to administer the MG program as set forth in this Agreement. Unless otherwise
explicitly stated in this Agreement, Imagitas disclaims all warranties, whether
express or implied, written or oral, with respect to any goods or services to be
provided hereunder or any component or part thereof, including any implied
warranty of merchantability or fitness for a particular purpose.
V. ARBITRATION
Any claim, controversy, or dispute ("dispute") arising out of or relating to
this Agreement or any aspect whatsoever of the relationship between Sponsor and
Imagitas shall be settled by binding arbitration before the American Arbitration
Association ("AAA") in accordance with its then prevailing Commercial
Arbitration Rules. The arbitration shall take place at the AAA offices in New
York City before a single arbitrator chosen pursuant to normal AAA procedures.
Arbitration is the sole and exclusive method by which any dispute arising out of
or relating to this Agreement or any aspect whatsoever of the relationship
between Sponsor and Imagitas may be resolved. In any such arbitration, all
disputes between Sponsor and Imagitas arising out of or relating to this
Agreement will be resolved in accordance with the law of the State of New York,
without regard to its conflicts of law principles. The arbitrator is not
authorized to award exemplary or punitive damages. Without limiting any other
indemnity obligation set forth herein, Sponsor specifically agrees that it will
indemnify Imagitas for all costs and expenses (including attorney's fees and
expenses) arising from Sponsor's breach of this paragraph.
VI. LIMITATION OF LIABILITY
In no event will either Imagitas or the USPS, their officers, directors,
affiliates, employees, representatives, agents or shareholders be liable (either
in contract, warranty, tort, or otherwise) to Sponsor or any of its officers,
directors, affiliates, employees, representatives or shareholders for any
consequential, incidental or indirect damages, including cost, profits, costs
savings or for any exemplary or punitive damages.
VII. PRINTING AND DISTRIBUTION
9
Imagitas uses reasonable commercial efforts to print and distribute sufficient
the MG copies to serve the moving population and the needs of the USPS. On a
national basis, approximately 9,800 post offices receive the MGs via direct
shipment (automatic shipments following each print run) and approximately 28,200
post offices order the MG booklets through two USPS Material Distribution
Centers (on an as-needed basis). The direct shipment post offices represent
approximately 80% of annual move volume. Sponsor agrees and acknowledges that
Imagitas has the right to reduce or increase the MG volume direct shipped to
individual regions based upon the availability of direct shipment post offices
or based upon any reasonable commercial need. In the event such an adjustment is
made, the Purchase Price to be paid by Sponsor shall be adjusted pro rata.
10
The MG is printed three times annually. Print runs begin April 1, August 1, and
December 1 (Imagitas reserves the right to revise the printing schedule in its
sole discretion). During each print run of the MG, approximately 25,000,000
booklets are printed (approximately 75,000,000 annually). Printing lasts
approximately 30 days. Delivery of booklets to direct ship post offices begins
approximately 15 days following the first day of the print run, and is complete
approximately 60 days following the first day of print run. The MG booklets are
delivered to the Material Distribution Center beginning approximately 15 days
following the first day of the print run.
The MG is very different from traditional print media that are distributed on a
daily, weekly, or monthly basis. In executing this Agreement, Sponsor recognizes
that Imagitas does not have ultimate control over the acts or omissions of the
USPS, including, control of the lobbies or storage rooms of post offices, or the
satchels or delivery vehicles used by over 350,000 Postal carriers. Sponsor
further acknowledges that Imagitas makes no representation or warranty as to the
MG turnover velocity, (i.e., the rate at which new MGs are introduced or
distributed and/or old MGs are replaced at post offices) and that Imagitas will
not be held liable in any manner for any claim based upon the MG turnover
velocity. Imagitas and the USPS require lengthy expiration dates and encourage
advertisers to develop unique, move-related advertising appropriate for at least
a yearly cycle in view of the uncertainty of turnover velocity.
The MG does not target groups of movers (e.g., businesses or homeowners) or
types of households (e.g., single dwelling unit (SDU), multi-dwelling unit
(MDU), or apartment). Neither Imagitas nor the USPS makes any representation,
warranty, or guarantee as to whether or when Households may choose to file a
change of address card with the USPS or whether a household is owned or rented
by the occupant.
VIII. MISCELLANEOUS
Paragraph headings contained herein are solely for the purpose of aiding the
reader and are not in any sense to be given weight in the construction of this
Agreement. This Agreement (including the attached letter and all other
Attachments hereto) constitutes the entire Agreement between the parties hereof
and, except as explicitly set forth herein, may not be changed or modified
except by a writing signed by the party or parties to be charged thereby. The
failure of Imagitas to enforce or the delay by Imagitas in enforcing rights
hereunder shall not be deemed a continuing waiver or modification of this
Agreement. In the event that any term or provision of this Agreement shall be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or provision
hereof, and the parties agree thereafter to use their best efforts to substitute
a provision of similar economic intent and effect.
11
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original but all of which together shall constitute one and
the same instrument.
The terms and conditions contained in Section I (Confidentiality), Section III
(Indemnification), Section IV (Representations, Warranties and Disclaimers),
Section V (Arbitration), Section VI (Limitation of Liability) and Section IX
(Miscellaneous), as well as all payment obligations of Sponsor contained herein
shall survive and remain fully enforceable upon termination of this Agreement.
The parties agree that neither party nor the USPS will be liable in any manner
whatsoever for acts of God, fires, strikes, accidents or other occurrences
beyond their control (whether like or unlike any of those enumerated herein)
which prevent either party and/or the USPS from partially or completely
producing, publishing or distributing the MG.
12
ATTACHMENT B: ADVERTISING FAIR SOLICITATION POLICY
ADVERTISING FAIR SOLICITATION START DATE: AUGUST 3, 1999
ADVERTISING FAIR SOLICITATION END DATE: AUGUST 16, 1999 - 5:30 P.M. EASTERN
TIME
PROCESS FOR FAIR TREATMENT OF POTENTIAL SPONSORS
Imagitas is offering category exclusivity for the Category specified in this
Agreement (the "Category") to advertisers that purchase space in the MG. Sponsor
and other competing companies are being offered the opportunity to participate
in the MG for the Category according to the process for fair treatment of
potential Sponsors, as described below:
Imagitas shall undertake reasonable commercial efforts to ensure that all
companies offering services in the Category and having national distribution or
substantial regional distribution will be sent written notification on the same
day and by the same method (the "Fair Start Date") of the program description
and the opportunity to secure category exclusive advertising space in the MG.
The companies will then have ten (10) business days from the Fair Start Date
(the "Response Period") in which to offer to purchase space in the MG for the
purchase price described in the ("Purchase Price"), by
returning to Imagitas an executed copy of the and a deposit as
specified in the (the "deposit").
ONE ADVERTISER RESPONSE WITHIN THE RESPONSE PERIOD
Should only one advertiser in the Category provide Imagitas with an executed
copy of the and the deposit within the Response Period, that
advertiser will secure the advertising space for the term of the (category exclusivity is offered only in those MGs containing the
advertiser's message).
NO RESPONSE AFTER THE RESPONSE PERIOD
Should no advertiser move to secure the advertising space in the Category during
the Response Period, Imagitas is free to accept any bid or all bids received
after the Response Period. Imagitas reserves the right, however, to move to a
Tie Breaking Process (described below) if, after the Response Period, two or
more companies provide Imagitas with the and the deposit for
participation at the same level on the same business day.
MULTIPLE ADVERTISER RESPONSE WITHIN THE RESPONSE PERIOD
In the event that Imagitas receives an executed copy of the
from two or more potential advertisers for the Category within the Response
Period and Imagitas determines in its sole discretion that each such is of the same approximate value, then the Category will
13
move to the Tie Breaking Process described below and all potential advertisers
that provided Imagitas with signed s and deposits shall be
permitted to participate in the Tie Breaking Process. In determining value,
Imagitas may consider any changes made to the Sponsor Agreement whether such
changes are made to economic, business or legal terms - as reducing the value of
such Agreement.
TIE BREAKING PROCESS
In the event that the procedures set forth above require that companies
participate in the Tie Breaking Process described herein, and Imagitas
determines that it is unable to redefine the Category so as to avoid conflict
between the advertisers, Imagitas will send such companies a notice ("Tie
Breaking Notice"), which will state that such companies shall have five (5)
business days from receipt of Tie Breaking Notice to deliver to Imagitas an
Agreement selecting participation in the MG at a value greater than that
specified in such company's previously executed Sponsor Agreement. The company
whose bid provides the greatest value as determined by Imagitas in its sole
discretion shall be awarded the Category. If no company submits a bid or if the
Tie Breaking Process results in another tie, then Imagitas shall be free to go
on to subsequent rounds as necessary, or accept any current or previous offer.
Sponsor acknowledges that any bid or offers previously made shall constitute
irrevocable offers to purchase space in the amount and at the price specified
therein until a company is awarded the Category.
Notwithstanding any of the foregoing, Imagitas reserves the absolute right to
reject at any time any executed Sponsor Agreement that has been altered or
amended by Sponsor or to request that an executed Sponsor Agreement be
resubmitted without alterations.
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ATTACHMENT C: UNITED STATES POSTAL SERVICE MOVER'S GUIDE-TM- ("MG")
ADVERTISING AND COPY STANDARDS
ADVERTISING STANDARDS: All advertising copy and products or services are subject
to review by Imagitas and the USPS. Specific requirements contained herein have
been developed and must be met by all advertisers. These include truthfulness,
safety, efficacy and financial responsibility.
It is not encouraged for any MG Advertiser to make any claims against
competitors in advertising placed in the MG. Advertisers are prohibited from
making any references that disparage other companies or providers of
moving-related products and services, regardless of whether such companies are
advertising in the MG.
COPY REGULATIONS:
1) Imagitas will not accept advertising for the MG that features non-moving
related products or services as defined by Imagitas. Furthermore, advertising
creative must clearly reflect the moving-related benefit. Copy should not use
the term "new mover" to describe the Postal customer receiving this mailing.
Further, neither Imagitas nor any advertising sponsor has access to names and
address of the Postal Service's moving customers, and these programs must not be
confused with industry "new mover" programs that distribute solicitations to
compiled lists.
Testimonials and endorsements should be used only if they are: 1) authorized by
the person(s) quoted; 2) genuine and related to the experience of the person who
has given them both at the time made and at the time of promotion; and 3) not
taken out of context so as to distort the endorser's opinion or experience with
the product or service.
The use of sweepstakes as part of a sponsor's promotional offer is prohibited.
Sweepstakes promotions are currently under scrutiny by the US Congress, and
there is legislation pending that would require copy notifications on the
external envelope of any sweepstakes mailing. Sweepstakes offers will not be
approved.
2) Advertising will not be accepted that includes editorial or graphics for
products or services outside of the category secured by Sponsor as defined in
the body of the Agreement unless Sponsor receives written approval from
Imagitas.
3) The Advertiser represents and warrants that it will not use the names or
logos of the USPS in their MG advertisement or other promotional or
informational material for the advertised product or service without the express
written consent of the USPS. USPS Express Mail -Registered Trademark- and
Priority Mail -Registered Trademark- services are exceptions to this policy.
Advertisers offering expedited delivery of any materials or products are
encouraged to use either of these USPS delivery vehicles and should either
service be offered through the advertisement, use of the Express Mail and
Priority Mail logos will be authorized.
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4) Any form(s) included in the MG for the purpose of address collection or any
addresses portrayed in Sponsor's advertisements must adhere to the ADDRESS
STANDARDIZATION REQUIREMENTS in Attachment D.
5) All advertisements must be submitted to Imagitas for pre-approval at least 15
days prior established film due date listed in print specifications. Sponsor
bears complete and total responsibility for ensuring any proposed advertisements
sent are received by Imagitas. Failure to meet specified advertising submission
deadlines may result in missing insertion. Imagitas is not responsible for
failure to meet deadline(s) and no refunds will be made. Sponsor must provide
Imagitas with a color comp of its advertisement 5 days prior to the Final Film
Date.
6) It is expected that all advertising materials (and, if applicable, data)
submitted to Imagitas be before scheduled deadlines, 100% accurate in content
and per specifications. In the event errors exist in submitted materials and
revisions are required, Imagitas assumes no responsibility for revisions.
Accordingly, Sponsor agrees and acknowledges that in no event will Imagitas be
liable to Sponsor in any manner or for any form of damages, whether direct or
indirect, for any revisions or modifications in submitted materials or for the
creation of new materials that are authorized by Sponsor or required per
specifications, regardless of whether such revisions/new materials are made in
whole or in part by Sponsor or Imagitas. Without limiting any other indemnity
obligation of Sponsor, Sponsor further agrees that it shall indemnify, defend
and hold harmless Imagitas and its agents against any claims, damages or
expenses (including reasonable attorney's fees) arising from or relating to
revisions of submitted materials/creation of new materials pursuant to this
paragraph.
7) All advertising must be clearly identified by the trade name, trademark or
signature of the advertiser.
8) Words such as "advertisement" will be placed with copy which in Imagitas'
opinion resembles editorial matter.
9) Advertisers are encouraged to have lengthy expiration dates on their
product/service offers: minimum expiration date is nine (9) months from print
run, twelve (12) months or more is encouraged.
10) In the event of any conflict or dispute of any kind regarding category
definition or any conflict of any kind as to the scope of an exclusivity right,
Imagitas shall have the right to make the final determination in its sole
discretion.
11) Sponsor agrees to conform to the specification guidelines determined by
Imagitas as contained in this Agreement and its Attachments. Sponsor
acknowledges that in the event it fails to conform to the specifications or due
dates mandated by Imagitas, Imagitas may not be able to perform in whole or in
part under this Agreement. Sponsor further acknowledges that Sponsor shall not
be entitled to any reduction in purchase price or any remedy whatsoever if
Imagitas' performance under this Agreement is
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deficient in any manner due to Sponsor's failure to conform to these
specifications or due dates, including but not limited to, if applicable,
inaccuracies in the data provided by the Sponsor.
12) Imagitas reserves the right to reject at any time, advertising for any
reasonable reason (such as, but not limited to, advertisements that conflict in
any way, with a goal, product, or policy of the USPS, conflict with another
advertiser's exclusive rights, or do not meet the Advertising and Copy Standards
set forth herein and as interpreted by Imagitas).
13) Film (and, if applicable, data) is due 45 days prior to start date of
program for all advertising ("Final Film Date").
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ATTACHMENT D: PRINT SPECIFICATIONS
FAILURE TO CONFORM TO SPECS
Sponsor acknowledges that in the event it fails to conform to these
specifications, Imagitas may not be able to perform in whole or in part under
this Agreement. Sponsor further acknowledges that Sponsor shall not be entitled
to any reduction in Purchase Price or any remedy whatsoever if Imagitas'
performance under this Agreement is deficient in any manner due to Sponsor's
failure to conform to these specifications, including but not limited to, if
applicable, inaccuracies in the data provided by the Sponsor.
SHIPPING INSTRUCTIONS:
Send all advertising materials to: ▇▇▇▇▇ ▇▇▇▇▇
Print Manager
Imagitas
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Ext. 1276
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Final specifications shall be provided in a separate letter forwarded to Sponsor
by Imagitas in conjunction with this Agreement. Such specifications shall be
deemed incorporated into this Agreement by this reference. These specifications
are subject to change based on Imagitas' reasonable commercial needs. Imagitas
also reserves the right to change the dates and/or number of print runs
specified based upon reasonable commercial needs. Please contact ▇▇▇▇▇ ▇▇▇▇▇ for
current specifications.
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