CONSULTING AGREEMENTCONSULTING CONTRACT
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THIS CONSULTING CONTRACT (the "Contract") is made and entered into as of
this 30 day of September, 2001 by and between TRANSMEDIA NETWORK INC., a
Delaware corporation with its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and TRANSMEDIA SERVICE COMPANY, INC., a Delaware
corporation with its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (collectively, the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, LTD., a
New Jersey corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Consultant") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, an employee of ▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, LTD.
W I T N E S S E T H:
WHEREAS, the Company has previously engaged the Consultant to perform the
services identified in Exhibits A and B, attached hereto and incorporated herein
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(the "Prior Work");
WHEREAS, the Company has provided the Consultant with valuable proprietary,
confidential, and trade secret information, has allowed the Consultant to
interact with prospective and existing customers and clients, and has allowed
the Consultant to maintain possession and control of certain computer middleware
and software owned by the Company and the Consultant has purchased certain
computer hardware, operating systems, middleware and software for the use and
benefit of the Company;
WHEREAS, the Company has provided ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with valuable proprietary,
confidential, and trade secret information and has allowed ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to
interact with prospective and existing customers and clients and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
has developed a close relationship with the Company;
WHEREAS, the Company and the Consultant desire to confirm and reaffirm the
terms of the prior engagement and relationship; and
WHEREAS, the Company desires to continue to engage the Consultant, and the
Consultant desires to continue to be engaged by the Company, to perform the
services described in Exhibit C, attached hereto and incorporated herein (the
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"Work"), and to perform other services for the Company on the terms and
conditions set forth herein; and
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Engagement. The Company hereby engages the Consultant, and the
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Consultant hereby accepts such engagement, to develop the Work and to perform
such other services for the Company as are mutually agreed upon between the
parties hereto from time to time (collectively, the "Services"). The Company
may revise the scope of the Work and the Services as it sees fit from time to
time.
Section 2. Responsibilities of the Consultant.
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(a) During the term of this Contract, the Consultant shall:
(i) to the greatest extent possible, faithfully and diligently
develop the Work and perform the Services using only
employees, not independent contractors;
(ii) to the extent that the Consultant develops the Work and
performs the Services using independent contractors, obtain
assignments of all rights to the Company including, without
limitation, copyright, moral rights, and intellectual
property rights or obtain transferable perpetual licenses of
all rights for the Company including, without limitation,
copyright rights, moral rights, and intellectual property
rights;
(iii) provide to the Company computer files on a monthly basis at
the same time as the Consultant's invoice is tendered, or at
such other times as is requested by the Company, wherein
such files shall report the Consultant's progress with
respect to the Work and the Services, including a
description of the work performed (including persons
performing the work, time and date on which the work was
performed) and the estimated time to complete the Work and
the Services; and
(iv) at the Company's request, hold status meetings with the
Company to review the status of the Work and the Services
and to discuss the development of the Work and the Services
using the Project Authorization and Approval Process as
described in Exhibit D.
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(b) In performing the Services, the Consultant shall at all times: (i) conduct
itself in a manner which is consistent with the policies and procedures of
the Company in effect from time to time and in a manner which will promote
and further the business, operations and reputation of the Company; (ii)
comply with all applicable federal, state and local laws in effect at the
time the Services are performed; and (iii) perform the Services in an
expeditious and economical manner consistent with professional standards
and practices.
Section 3. Acceptance of the Work and the Services.
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(a) The Consultant shall transfer continuously to the Company
copies of all materials designed or developed by the Consultant with respect to
the Work and the Services, including, without limitation, all completed portions
of the Work and the Services and all work in process (collectively, "Work
Product"), for purposes of the Company's evaluation and acceptance by the Chief
Technology Officer or his designee and shall retain copies to create further
Work Product. Such transfer may occur electronically.
(b) The Consultant has transferred to the Company certain aspects
of the Work Product related to the Prior Work and, at the Company's request, has
retained certain aspects of the Work Product related to the Prior Work.
(c) All Work Product shall be subject to evaluation and acceptance
testing by the Company to verify that such Work Product meets with the Company's
approval, in the Company's sole discretion. The Company shall provide to the
Consultant results of its evaluation and acceptance testing of all Work Product
provided to it and shall identify any aspect of such Work Product which fails to
meet with the Company's approval.
Section 4. Assignment of the Work Product and Inventions.
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(a) Except for certain expressly-designated computer software
identified in Exhibit E, attached hereto and incorporated herein (the "Generic
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Software"), and certain expressly-designated computer hardware, operating
systems, middleware, and software identified in Exhibit F, attached hereto and
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incorporated herein (the "Equipment"), the Consultant, in consideration of
payment, to the Company all of its right, title and interest, including, without
limitation, copyright, moral rights, and intellectual property rights,
throughout the world, in and to the Prior Work, including, without limitation,
all previously developed Prior Work and Work Product and all developments,
ideas, notes, designs, drawings, models, specifications, memoranda, video work,
audio work, methods, systems, computer software or programs, creations,
inventions, trade secrets, patents, patent applications (whether pending or not)
or any other intellectual proprietary information and know-how, whether or not
patentable, copyrightable or subject to other legal protection, developed in
relation to the Consultant's work performed for the Company with respect to the
Prior Work and any Services previously provided herein. The Consultant hereby
provides to the Company at no cost to the Company a non-exclusive transferable
perpetual license of all of its right, title and interest, if any, including,
without limitation, copyright, moral rights, and intellectual property rights,
throughout the world, whether or not patentable, copyrightable or subject to
other legal protection in the Generic Software and the Equipment.
(b) Except for the Generic Software and the Equipment, the
Consultant hereby assigns to the Company all of its right, title and interest,
including, without limitation,
copyright, moral rights, and intellectual property rights, throughout the world,
in and to all previously developed Work Product and all developments, ideas,
notes, designs, drawings, models, specifications, memoranda, video work, audio
work, methods, systems, computer software or programs, creations, inventions,
trade secrets, patents, patent applications (whether pending or not) or any
other intellectual proprietary information and know-how, whether or not
patentable, copyrightable or subject to other legal protection, developed in
relation to the Consultant's work (including any rights held by the Consultant's
employees) performed for the Company in association with the Previous Work, the
Work, and the Services.
(c) Except for the Generic Software and the Equipment, the
Consultant hereby assigns to the Company all of its right, title and interest,
including, without limitation, copyright, moral rights, and intellectual
property rights, throughout the world, in and to all Work Product and all
developments, ideas, notes, designs, drawings, models, specifications,
memoranda, video work, audio work, methods, systems, computer software or
programs, creations, inventions, trade secrets, patents, patent applications
(whether pending or not) or any other intellectual proprietary information and
know-how, whether or not patentable, copyrightable or subject to other legal
protection, developed in relation to the Consultant's work (including any rights
held by the Consultant's employees) performed for the Company in association
with the Work and the Services.
(d) The Consultant shall promptly disclose to the Company all
material and information developed, conceived or first reduced to practice by
the Consultant (or its employees) in connection with the Prior Work, Work,
and/or the Services, including, without limitation, all Work Product and all
developments, ideas, notes, designs, drawings, models, specifications,
memoranda, video work, audio work, methods, systems, computer software or
programs, creations, inventions, trade secrets, patents, patent applications
(whether pending or not) or any other intellectual proprietary information and
know-how, whether or not patentable, copyrightable or subject to other legal
protection, which, directly or indirectly, relate to the Prior Work, Work, Work
Product, or the Services (collectively, "Inventions").
(e) All Inventions shall belong exclusively to the Company. Except
as provided in Section 4(a), the Consultant hereby acknowledges that all
Inventions are works which have been specially ordered or commissioned by the
Company and that all such services, results and proceeds shall be considered
"works made for hire," as defined under Section 101 of the Copyright Act of
1976, and the Company shall own all right, title and interest therein. The
Company shall be considered the author for purposes of copyright and shall own
all the rights in and to the copyright of all Inventions and only the Company
shall have the right to register the copyright to any Invention, which the
Company may do in its name or in any other name. To the extent that any
Invention may not be deemed a "work made for hire" under Section 101 of the
Copyright Act, or, for any reason, intellectual property rights may not vest in
the Company, the Consultant hereby grants, assigns, and conveys to the Company
all of its right, title and interest now existing or that may exist in the
future in and to any intellectual property rights, including any copyrights, in
the Inventions. Neither the Consultant nor ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall attempt to
register any Invention created by the Consultant pursuant to this Contract at
the U.S. Copyright Office or in any foreign counterparts of that office.
Section 5. Fees.
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(a) In consideration of the consulting services to be performed by
the Consultant hereunder, the Company shall pay to the Consultant monthly fees
according to the monthly fixed fee and staffing schedule in Exhibit G, attached
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hereto and incorporated herein (the "Fee and Staffing Schedule"). The Consultant
shall staff its operation in accordance with the Fee and Staffing Schedule. The
Consultant shall maintain computer files of consulting services with such
information as is agreed upon between the parties hereto from time to time and
provide monthly status reports to the Company regarding the consulting services
provided and staffing levels. The Consultant shall provide a written invoices to
the Company reflecting the monthly fixed fee as required pursuant to the Fee and
Staffing Schedule for consulting services, expenses, back up services, and
standby processor services to the Company's Chief Technology Officer or his
designee. The Company shall pay any undisputed amounts on such invoices within
twenty (20) calendar days of receipt.. In the event payment is not made within
such period, then a late charge of 18% per annum shall apply to unpaid portions,
and Consultant shall be entitled to its reasonable cost of collection, including
counsel fees.
(b) In additional consideration for the limitations on ▇▇▇▇▇
▇▇▇▇▇▇▇▇'▇ actions after the termination of this Contract and in addition to the
Company's disclosure of trade secrets and valuable confidential business and
professional information to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and provision of access to the
Company's substantial relationships with prospective and existing customers and
clients to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Company shall pay to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ten ($10.00)
dollars per year, in addition to any other compensation ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may
receive from the Consultant.
Section 6. Equipment and Expenses.
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(a) The Consultant has purchased or otherwise obtained the
Equipment on behalf of the Company to be utilized by the Company in connection
with performing the services to be performed by the Consultant hereunder for the
use and benefit of the Company. Upon termination of this Contract, the
Consultant will continue perpetually to provide the Equipment for the use and
benefit of the Company at no cost , except for the expense, if any, of
relocating such Equipment, to the Company, regardless of the Consultant's
ownership of the Equipment.
(b) The Company shall be responsible for all reasonable expenses
incurred by the Consultant in connection with performing the services to be
performed by the
Consultant hereunder consistent with past practice as it relates to expense and
frequency, provided however, that the Consultant shall follow the Company's
policies, as such policies exist and may be amended from time to time, for
approval of expenses.
Section 7. Covenants of the Consultant.
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(a) The Consultant shall:
(i) take all reasonable steps necessary to ensure that no
person or entity will have unauthorized access to the
Work or any other Work Product or any portion thereof and
in accordance with the Company's security and privacy
policies, as such policies exist and may be amended from
time to time;
(ii) promptly notify the Company if the Consultant becomes
aware of any infringement of the Company's proprietary
rights in or to the Work or any other Work Product or any
portion thereof;
(iii) take all reasonable steps necessary to ensure that no
person or entity will have unauthorized access to other
information provided by the Company and that such
information shall be maintained securely and in
accordance with the Company's security and privacy
policies, as such policies exist and may be amended from
time to time; and
(iv) take all steps necessary to maintain securely all
hardware, middleware, and software purchased on behalf of
the Company to be utilized by the Consultant.
(b) The Consultant shall not:
(i) except for the Generic Software and as otherwise provided
in Section 4 hereof, assign, sublicense, lease, encumber
or otherwise transfer or attempt to transfer the Work or
any other Work Product or any portion thereof;
(ii) except for the Generic Software, permit any third party
to use or have access to the Work or any other Work
Product or any portion thereof without the prior written
consent of the Company;
(iii) permit any third party to use or have access to the
information provided by the Company without the prior
written consent of the Company; or
(iv) use the services of any independent contractor in such a
manner that the independent contractor would have a
claim of right to the Inventions.
Section 8. Representations and Warranties. The Consultant hereby
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represents and warrants to the Company that: (i) the Company shall receive good
title to all Inventions, free and clear of all liens, claims and encumbrances
whatsoever; (ii) the Prior Work, Work and any other Work Product and all
portions thereof shall conform to the specifications and requirements agreed
upon between the parties hereto; (iii) no Prior Work, Work, Services, or Work
Product has, does, or will infringe or violate any patents, copyrights,
trademarks, trade secrets or other proprietary rights of any third party; and
(iv) the media on which any Work Product is contained shall contain no computer
instructions whose purpose is to disrupt, damage or interfere with the Company's
use of its computers or telecommunications facilities for its commercial
purposes, or to perform functions which are not an appropriate part of the
functionality of such Work Product and whose result is to disrupt the use or
operation of such Work Product.
Section 9. Confidentiality.
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(a) The Consultant and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually acknowledge that,
during the course of performing the Work and the Services to be performed by the
Consultant hereunder, the Consultant and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually have been
and may be exposed to and have access to confidential and/or proprietary
information of the Company. No express or implied license to use such
confidential and/or proprietary information is granted to the Consultant or
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually other than to use such information to the extent
necessary to perform the services to be performed by the Consultant hereunder.
(b) Neither the Consultant nor ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually shall,
without the prior express written permission of the Company, during the term of
this Contract or subsequent to its termination or expiration, disclose to any
other person or entity or use in any way any confidential and/or proprietary
information of the Company which the Consultant or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually
may now have or may hereafter obtain during the term of this Contract. By this
Contract, the Company revokes any prior express written permission (except to
the extent that the Company subsequently grants such permission in writing) for
the Consultant to disclose any confidential and/or proprietary information of
the Company to any other person or entity..
(c) For purposes of this Contract, "confidential information" shall
mean the Work and the Services and all portions thereof, and all computer
software, manuals,
quotations, specifications, designs, plans, ideas, concepts, theories,
technology, know-how, methods, customer lists and other technical or non-
technical data and business information of Company (whether or not reduced to
writing or to practice by the Company) which are not generally known to the
public.
(d) For purposes of this Contract, "proprietary information" shall
mean all technology, know-how, methods, customer lists and other technical or
non-technical data and business information of Company (whether or not reduced
to writing or to practice by the Company).
Section 10. Non-Competition.
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(a) In order to protect the Company's legitimate business interests in
the form of trade secrets, valuable confidential business and professional
information, substantial relationships with prospective and existing customers
and clients, and customer and client goodwill, the Consultant and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
individually agree that, during the term of this Contract and up to a period of
twenty-four (24) months after the date of the termination of this Contract (the
length of time to be determined at the Company's sole discretion), the
Consultant and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually will not, directly or indirectly, as
a partner, joint venturer, employer, employee, consultant, shareholder,
principal, agent, or otherwise: (i) own, manage, operate, render services to,
become interested in or associated with, join in, control, participate in, or
otherwise carry on any "Competing Business" (as hereinafter defined); or (ii)
take any action that is adverse to the Company's interests, product market,
goodwill or reputation. For purposes of this Contract, the term "Competing
Business" shall mean and include any entity or business which is engaged in
developing, marketing, advertising, distributing, licensing, sublicensing,
selling or providing products or services similar to or competitive with the
Work or the Services or the Company. Competing business include, but are not
limited to, other loyalty rewards providers or back end processors, alternate
currency redemption schemes, dining programs such as IGT or Gusto, and/or
processor based capital or marketing programs. This provision shall not be
enforceable if the Company is in breach of its payment requirements hereunder.
(b) It is agreed among the parties hereto that the foregoing
restrictions, as well as the time period of the restrictive covenants set forth
in this Section 10, are reasonable and acceptable in light of the information
and other valuable benefits the Consultant will receive from the Company in
connection with this Contract.
(c) Should a court of competent jurisdiction declare any of the
covenants contained in this Section 10 unenforceable due to an unreasonable
restriction upon engaging in a Competing Business or the duration of non-
competition, such court shall have the express authority of the parties to this
Contract to reform the covenants to the maximum term and geographic area found
by such arbitrator reasonably necessary to protect the Company's interests. The
Consultant and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually expressly recognize and agree
that the covenants set forth herein are for the purpose of restricting the
Consultant's and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ individual activities only to the extent
necessary for the protection of the legitimate business interests of the
Company, and the parties hereto agree that said covenants are reasonable for
that purpose and that such covenants do not and will not preclude the
Consultant, its employees, or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually from engaging in
activities sufficient for the purpose of earning a living.
(d) Company agrees to not solicit for employment, consulting or any
provision of services any member of the Consultant's staff without the consent
of Consultant. This provision shall remain in effect so long as the Contract
and/or its non- compete provisions remain in effect.
Section 11. Term and Termination.
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(a) Subject to the provisions of this Contract, and unless extended or
earlier terminated, the term of this Contract shall commence on October 1, 2001
or on such other date as shall be mutually agreed upon in writing between the
parties hereto and shall continue thereafter until September 30, 2004. The
Consultant shall perform the Work and the Services in accordance with a
development schedule mutually agreed upon in writing by the parties hereto, it
being understood and agreed that time is of the essence for the completion of
such services.
(b) This Contract is automatically renewable for two successive one
(1) year periods on the anniversary of the commencement date described in
Section 11(a). Written notice of intention to not renew this Contract must be
provided one hundred and eighty (180) calendar days ahead of the anniversary of
the commencement date described in Section 11(a).
(c) This Contract may be terminated by written agreement signed by
representatives of both parties upon six (6) months notice. If the parties
exercise their joint right to terminate this Contract set forth in this Section
11(b), the Consultant shall make its best efforts to complete all uncompleted
portions of the Work, the Services, and all other Work Product prior to the
termination of this Contract. Prior to the termination of this Contract as set
forth in this Section 11(b), the Company shall provide written notice to the
Consultant of whether it intends to exercise its right to enforce the provisions
of Section 10(a) hereunder and, if so, the length of time for which it will
enforce the provisions of Section 10(a) hereunder with regard to the Consultant
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ individually.
(d) Notwithstanding anything to the contrary contained herein, the
Company may terminate this Contract in sixty (60) calendar days upon written
notice to the Consultant in the event: (i) of a uncured material default by the
Consultant of the Consultant's obligations hereunder under Section 9 hereof
provided that Consultant has received thirty (30) days' calendar notice of such
default ; or (ii) immediately in the event of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ termination by or
disassociation from the Consultant. Any such terminations shall not be deemed
waivers by the Company of its rights and remedies as a result of such breach.
(f) In the event this Contract is terminated pursuant to this Section
11, the Company's sole obligation and liability to the Consultant shall be to
pay the Consultant for services performed prior to the date of termination.
(g) Within thirty (30) days following the date of the notice of
termination of this Contract, the Consultant shall deliver to the Company all
Work Product and all materials and information remaining in its possession
relating to the Work or the Services and shall destroy (unless otherwise
requested by the Company) any and all portions of the
Work and other Work Product contained in any computer storage device in the
possession or under the control of the Consultant.
Section 12. Indemnification. The Consultant agrees to defend, indemnify
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and save harmless the Company and its officers, directors, shareholders,
employees, licensees, and franchisees from and against all losses, costs,
claims, demands, actions, liabilities, suits or damages that in the aggregate
for that claim exceed $10,000.00, including without limitation, reasonable
counsel fees, costs and expenses, arising out of any allegation or claim of a
breach of any representation or warranty made by the Consultant in Section 8
hereunder. The Consultant does not agree to defend, indemnify and save harmless
the Company and its officers, directors, shareholders, employees, licensees, and
franchisees from and against any losses, costs, claims, demands, actions,
liabilities, suits or damages, arising solely from the actions of the Company or
its employees.
Section 13. Status of the Consultant.
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(a) Without the prior approval of the Company, the Consultant is not,
nor shall the Consultant be deemed to be, the legal representative or agent of
the Company. The Consultant is not authorized to transact business, accept
orders, incur obligations (expressed or implied), ▇▇▇▇ for goods or other
services, establish prices, or otherwise act in any manner in the name of or on
behalf of the Company, or make any promise to any third with respect to the
Work, the Services, or any other matter of the Company.
(b) The Consultant is and shall at all times act as an independent
contractor. The Consultant acknowledges and agrees that: (i) the Consultant is
engaged in an independently established trade, occupation or business; (ii) the
Company shall not withhold on behalf of the Consultant any sums for income tax,
unemployment insurance, social security, or any other withholding pursuant to
any law or requirement of any governmental authority relating to the Consultant
or make available to the Consultant any of the benefits afforded to employees of
Company, if any; and (iii) all of such payments and withholdings are the sole
responsibility of the Consultant who covenants that the Consultant shall make
all such payments as required by law. In the event the Internal Revenue Service
or any other governmental authority questions or challenges the independent
contractor status of the Consultant, the parties hereto agree that the
Consultant and the Company shall have the right to participate in any discussion
or negotiation occurring with such governmental authority, irrespective with
whom or by whom such discussions or negotiations are initiated. The Consultant
shall defend, indemnify and hold harmless the Company from and against any loss,
expense, claims, liability or cost, arising from or in connection with a
determination by any governmental, administrative or judicial authority that the
Consultant is a subsidiary or affiliate of the Company.
(c) Nothing in this Contract shall be construed as affecting or
altering the Consultant's role as an on-line back up site for the Company's
information. Upon termination of this Contract and at the Company's sole
discretion, the Consultant will continue to serve as an on-line back up site for
the Company's information or will return all such information to the Company.
Should the Company choose for the Consultant to continue to serve as an on-line
back up site for the Company's information, the Company shall pay to the
Consultant a reasonable fee agreed to by the parties. Should the Company choose
for the Consultant to continue to serve as an on-line back up site for the
Company's information, the Consultant will continue to provide such service
during the negotiation of the reasonable fee agreed to by the parties.
(d) Nothing in this Contract shall be construed as affecting or
altering the Consultant's role as the back up servicer with regard to the
Company's securitization. The Company and the Consultant hereby confirm and
reaffirm the Consultant's role as the back up servicer with regard to the
Company's securitization. Upon termination of this Contract and at the
Company's sole discretion, the Consultant will continue to serve as the back up
servicer with regard to the Company's securitization. Should the Company choose
for the Consultant to continue to serve as the back up servicer with regard to
the Company's securitization, the Company shall pay to the Consultant a
reasonable fee agreed to by the parties. Should the Company choose for the
Consultant to continue to serve as the back up servicer with regard to the
Company's securitization, the Consultant will continue to provide such service
during the negotiation of the reasonable fee agreed to by the parties.
Section 14. Non-Waiver and Amendment. No failure by any party to enforce
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or take advantage of any provision hereof shall constitute a waiver of any
subsequent right to enforce or take advantage of such provision, and no rights
of any party shall be deemed waived, nor shall this Contract or any of the terms
or provisions thereof be changed or amended or waived, in any way whatsoever,
except by a written Contract executed by a duly authorized officer of each party
hereto.
Section 15. Assignability. This Contract shall not be assignable or
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transferable by any Party, by operation of law or otherwise, without the other
Party's prior written consent.
Section 16. Governing Law; Submission to Jurisdiction; Severability.
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Except as otherwise provided herein, this Contract shall be construed and
enforced in accordance with the internal laws of the State of New York. Both
parties agree that they are subject to the jurisdiction of the courts of the
State of New York and agree that any dispute over the construction or
enforcement of this Contract shall be brought in a court of competent
jurisdiction (either state or federal) in the State of New York. If any
provision of this Contract is in violation of any applicable law, such provision
shall to such extent be deemed null and void, and the remainder of the Contract
shall remain in full force and effect.
Section 17. Notices. Any notices or other communications required or
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permitted to be given or delivered under this Contract shall be in writing and
shall be sufficiently given if delivered personally or mailed by registered or
certified mail, postage prepaid, return receipt requested, or by overnight
delivery by a nationally-recognized courier, or by facsimile (if confirmed by
registered or certified mail, postage pre-paid, return receipt requested) to:
To Company at:
TRANSMEDIA NETWORK INC.
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Consultant at:
▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES LTD.
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Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address, person or facsimile number as either party may from
time to time designate to the other in writing. Any such notice or other
communication shall be deemed to be given as of the date it is personally
delivered, five (5) days after being deposited in the United States mail, one
(1) day after being deposited with a nationally recognized courier for overnight
delivery, or upon facsimile transmission.
Section 18. Entire Contract. This Contract and the Exhibits attached
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hereto evidence the entire Contract of the parties hereto, and supersede all
prior Contracts and understandings relating to the subject matter of this
Contract. The parties hereto represent and warrant to each other that no
representation or promise not otherwise expressly set forth herein has been made
to any party in connection with the negotiation and execution of this Contract
and was immaterial if made, and that no party has relied upon any representation
or promise of any other party in executing this Contract.
Section 19. Survival. Upon termination of this Contract, all rights and
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obligations of the parties shall cease, except as expressly stated otherwise in
the Contract and except for the obligations of the parties under Sections 4,
6(a), 8, 9, 10, 11(d) and (e), and 12 through 24, which obligations shall
survive the termination of this Contract.
Section 20. Limitation of Remedies. NO PARTY SHALL BE LIABLE TO THE
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OTHER FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES,
OR FOR EXEMPLARY DAMAGES, RESULTING FROM THIS
CONTRACT OR THE SERVICES PERFORMED HEREUNDER, EVEN IF THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
Section 21. [Intentionally omitted.]
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Section 22. Successors. This Contract shall enure to the benefit of the
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parties hereto and their respective affiliates, purchasors, predecessors,
successors, assigns, officers, directors and employees.
Section 23. Free and Voluntary Act. This Consultant has executed and
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delivered this Contract as the Consultant's free and voluntary act, after having
determined that the provisions contained herein are of a material benefit to the
Consultant, and that the duties and obligations imposed on the Consultant
hereunder are fair and reasonable.
Section 24. Opportunity to Employ Counsel. The Consultant has read and
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fully understands the terms and conditions set forth herein, has had time to
reflect on and consider the benefits and consequences of entering into this
Contract, and has had the opportunity to review the terms hereof with his or her
attorney.
Section 25. Captions: Authorship. Captions are for convenience only and
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shall not be used to interpret or change the substance of this Contract. This
Contract shall not be construed for or against any party on account of
authorship.
* * * * *
IN WITNESS WHEREOF, the parties have entered into this Contract as of the
day and year first above written.
THE COMPANY:
TRANSMEDIA NETWORK INC.
By: _______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
THE CONSULTANT:
▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, LTD.
By: _______________________________________
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By: _______________________________________
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