AGREEMENT FOR DIRECT RESPONSE SERVICES
Exhibit
4.5
InPulse
Response Group, Inc. - Amerelite Solutions
February
8, 2006
Page
1 of 5
InPulse
RESPONSE
GROUP
THIS
Agreement (Agreement") is made as of February 8, 2006, by and between InPulse
Response Group, Inc., an Arizona Corporation ("InPulse™") with offices at ▇▇▇ ▇.
▇▇. ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Amerelite Solutions ("Client"), located at
▇▇▇▇
▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ , for the development, administration
and
implementation of Direct Response Campaigns related to Client's products and
services.
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1.
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InPulse
Responsibilities -- InPulse will provide direct response services
to the best of its ability to client in the manner and method identified
in each addendum for services. Each addendum will outline the scope
of
work and the pricing associated with client's campaign. InPulse
responsibilities in providing services
include:
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A. Inbound
calls
Receive
telephone calls generated by Client advertising for the Product and promote
and
sell the product. InPulse shall not cross sell or up sell any products unless
first approved by Client. InPulse shall provide the services set forth herein
twenty-four (24) hours a day, seven (7) days a week, fifty-two (52) weeks a
year.
B. Outbound
calls
Generate
outbound telephone calls to Client's list(s) to promote and sell approved
products and/or services. InPulse shall not cross sell or up sell any products
unless first approved by Client. InPulse shall provide outbound telemarketing
services as set forth in each properly executed addendum to this
Agreement.
C. Scripts
Develop,
in conjunction with and subject to the approval of Client, sales scripts for
InPulse sales representatives to use in the selling of the product and
authorized cross sells and up sells. All sales scripts will be submitted to
client for review for substantive accuracy and will not be used unless client
has approved them in writing. InPulse sales representatives shall not deviate
materially from the scripts or make claims in addition to or different from
the
claims in the scripts.
D. Contact
Person
InPulse
shall designate one (1) primary contact to the client account who will be
available during regular business hours (9:00 a.m. to 5:00 p.m. Pacific time)
and InPulse will assign an alternate contact for the client account when the
primary contact is not present and readily accessible.
E. Monitoring
InPulse
will monitor its telephone operators' performance on a regular basis for quality
assurance purposes and for purposes of ensuring compliance with any and all
applicable laws and regulations, including without limitation, the Telemarketing
Sales Rule, Telephone Consumer Protection Act, Telephone Consumer Fraud and
Abuse Prevention Act and any applicable state telemarketing laws. Specifically,
InPulse will record and archive all sales verifications and shall keep all
such
recordings for a minimum of three years from the inception date of each
recording. For purposes of this provision, the sales verification portion of
the
call shall include disclosure of all material terms of the product offer and
the
customer's acceptance of the offer.
F. Data
Transmission
InPulse,
agrees to transmit all completed orders for Client's campaign to Client (or
Clients designee) in the format reasonably requested by Client. This format
shall
be
mutually agreed upon prior to beginning a campaign and will require Client
approval before campaign begins. InPulse will use its best efforts in ensuring
the accuracy and timeliness for data and reporting provided to the Client.
InPulse™ will
not be responsible or liable for any costs relating to any checking or credit
card accounts, or any related fees and taxes. Client shall be responsible for
establishing policies and rules for the collection and payment of shipping
charges, handling charges, insurance charges, and all state and local
sales/transaction privilege taxes and any other applicable taxes. Client shall
be responsible for the reporting and payment of all state and local
sales/transaction privilege taxes and any other applicable taxes.
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2.
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Client
Responsibilities - Client will assist and cooperate to the best
of its ability with InPulse™" to facilitate the provision of such
services. Client agrees to provide this assistance and cooperation
within
a 24-hour period for requests from InPulse™, Client also agrees to comply
with all the terms and conditions of this Agreement. If Client's
products,
programs, materials, goods and property are objectionable, misleading,
fraudulent, prohibited by law or sexually explicit as determined
by
InPulse™, InPulse™ may, upon notice to client, immediately terminate its
obligations under this Agreement without liability and Client shall
be
responsible for payments for services provided as outlined within
this
Agreement.
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3.
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Confidentiality -
Both parties recognize and mutually agree that all information regarding
each party's proprietary technologies, services, pricing and information
are confidential and proprietary, and as such, all confidential
information may not be disclosed or used for any purpose whatsoever
except
to perform under this Agreement. All consumer information captured
over
the telephone (including, but not limited to, names, addresses, telephone
numbers, ANI, credit card numbers) is confidential and is the property
of
client. This paragraph does not apply to (i) information known or
which
has become public through no fault of either party, including but
not
limited to, information either party already had in its possession
prior
to the date of disclosure of such information, (ii) information either
party obtains from a third party on a non-confidential basis; or
(iii) any
information that InPulse™
or Client
is required by law to disclose.
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Proprietary
and
Confidential to InPulse™ Response Group
1
InPulse
Response Group, Inc. - Amerelite Solutions
February
8, 2006
Page 2
of 5
InPulse
RESPONSE
GROUP
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4.
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No
Hire - Client, or any successor in interest to Client or any
company, person or entity under control of Client, shall not employ
any
InPulse™ employee in any capacity, including subcontractor status, during
the term of this Agreement or for a period of six (6) months following
the
termination of this agreement unless authorized in writing by InPulse™,
Client agrees that such action without prior written authorization
from
InPulse™. would result in significant damage to InPulse™, and Client
agrees to pay one {1) times the annual compensation of the employee
and
any costs associated with replacing that employee as liquidated damages
for its breach of this provision.
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5.
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Telephone
Number Utilization - In the event that client utilizes inbound
telesales services InPulse™, will provide to Client inbound telephone
coverage via exclusive toll-free long distance telephone numbers
and
Client shall direct customers to call specific telephone numbers
as
assigned to Client by InPulse™. These telephone numbers shall be used by
Client only during the term of the Agreement and such telephone numbers
are and will remain the exclusive property of InPulse™. InPulse™ will be
responsible for completing the programming of such telephone numbers
as
agreed between the Client and InPulse™. Upon termination of this
Agreement, InPulse™ will terminate the Client's right to utilize such
telephone numbers. In the event that this agreement is terminated
per
Paragraph 9 InPulse™ may direct sales consultants to inform callers on a
particular telephone number that InPulse™ is not taking calls for such
program, service or product. In such event as InPulse™ continues to take
such calls for Client, Client shall pay InPulse™ a per-second charge for
InPulse™ operators handling such calls, a charge for informational
announcement time and commission per sale as defined in this or any
other
agreement between the parties. InPulse™ will not be liable to Client or
any other person for direct or indirect claim, loss, injury, damage
or
cost sustained in connection with the termination of the Client's
right to
utilize an telephone number.
In
the event Client utilizes outbound
teleservices, InPulse™ will utilize its own telecommunications services to
enable the calling campaign to proceed on Client's
behalf.
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6.
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Payment
for Services - InPulse™ will invoice client for services on a
weekly basis. Payment is due 14 days from invoice date. Any amount
not
paid within 14 days old shall be subject to a five percent (5%) late
fee.
Furthermore, any amount that is not paid within fourteen (14) days
will
accrue interest at 1.5% per month, or the maximum allowable by law,
Payment of InPulse™'s invoices is neither dependent upon Client's
collection from customers nor dependent on Client's customer returns.
It
is the responsibility of Client to charge and collect upon customer's
credit cards or other payment options, and to facilitate and fulfill
customer orders promptly. Based on the information provided by Client
and
InPulse™'s account analysis, InPulse™, will establish a credit limit for
Client. InPulse™ may require a security deposit prior to initiating
service. If client exceeds the established credit limit, the amount
above
the credit limit is immediately due and payable. If client is unable
to
resolve any credit issue within fourteen (14) days of our initial
written
notification to Client, InPulse, may immediately terminate services
for
Client and terminate Client's right to utilize any telephone number
belonging to InPulse, . At our option, InPulse™ may continue to take
orders but hold them from fulfillment until such time as the credit
condition is removed by mutual agreement. If there remain unencumbered
funds following completion of Client's projects and Client has paid
all
outstanding invoices, InPulse™ will refund any balance of the security
deposit within fourteen (14) days of request by
Client.
Client Shall be responsible for,
and shall
promptly pay, all sales taxes, service taxes, use taxes, fees or
charges
levied or assessed by any governmental authority or agency thereof
as a
result of this Agreement or the services to be provided to Client
there
under except taxes levied or assessed on the net income or profit
of
InPulse.
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7.
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Program
Pricing - InPulse™ shall provide to Client the specific charges
and fees for each requested service as defined in attached addendums.
InPulse™ reserves the right to modify these charges on the basis of a
requested change in services by
Client.
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8.
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Duration
and Termination - This agreement will be in effect for a period
of one (1) year from the date of this agreement, with an automatic
renewal
on an annual basis. Both parties reserve the right to terminate this
Agreement by providing thirty (30) days written notice to the other
party,
provided however, the terms and conditions of this agreement shall
remain
in full force and effect regarding any unfulfilled obligations of
either
party.
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9.
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Compliance
- The parties agree that InPulse™ shall be acting solely as Client's agent
when performing services and obligations under this Agreement. InPulse™
and Client shall comply with all federal and state laws and regulations
governing telemarketing activities including, without limitation,
the
Telemarketing and Consumer Fraud and Abuse Prevent Act of 1993 and
all
regulations promulgated there under, and the parties agree to provide
each
other, upon written request, with written evidence of
compliance.
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Proprietary
and Confidential to InPulse™ Response Group
2
InPulse
Response Group, Inc. - Amerelite Solutions
February
8, 2006
Page 3
of 5
InPulse
RESPONSE
GROUP
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10.
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Assignment
-- Except as outlined in section 11 below, InPulse may delegate
or assign any duties under this agreement to "remote agents' and/or
agents
supplied by temporary employment agency(ies) working or contracted
by
InPulse, or to any subsidiary or company under common ownership,
to
provide similar services, at its discretion, at any time. Inpulse
may
delegate or assign any duties under this contract to any company
not under
common ownership with the Client's prior written consent. Any such
delegation or assignment shall provide that the assignees are subject
to
all the terms and conditions set forth in this
agreement.
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11.
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Inability
to Perform - In the event that, due to circumstances beyond our
control, (including but not limited to labor disturbances, strikes,
lockouts, failure of a carrier to provide lines of service, Government
regulations or interference, accidents, fires, explosions, acts of
terrorism or any similar interruption beyond our reasonable control)
InPulse™ is unable to provide service, our obligations under this contract
will be suspended until such time as services can be restored. However,
that inability will not absolve Client of its responsibilities under
this
contract, including payment of any outstanding invoices as due. In
the
event of any interruption of services, InPulse™ shall use its best efforts
to cause the restoration of such services as soon as possible. InPulse™
will work with Client to ensure there are adequate back up and contingency
plans to reroute projects to overflow telemarketing companies in
order to
minimize the possibility of Client losses and to maintain the program
for
the Client in the event of such emergencies. Client will be responsible
to
arrange for such overflow telemarketing companies, should Client
elect to
provide overflow facilities and disaster recovery in the event InPulse™ is
unable to perform. This contingency overflow and disaster recovery
will be
arranged at the sole expense of the Client. Additionally, Alternative
Destination Routing features or any advanced telephone network routing
features requested by Client will be implemented and billed to Client
at
InPulse™'s cost. It InPulse™'s obligations are suspended pursuant to this
section, InPulse™ will not be liable to the Client or any other person or
entity for any claims or causes of action in any way arising out
of or
related to such suspension.
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12.
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Limitation
of Liability - InPulse™ will not be liable to Client for any lost
profits, any lost business, or any indirect, consequential, incidental
or
special losses or damages arising under this Agreement or any additional
agreements between the parties. InPulse and its suppliers do not
warrant
the performance or results you may obtain by using its services.
Results
may vary from time to time and neither payment for services nor the
responsibilities of client will be relieved by any changes in the
results
of clients direct marketing programs. Any and all actions or claims
brought against InPulse™, its suppliers or successors for breach of
Agreement must be commenced within six (0) months after Client becomes
aware of such cause of action or claim, or such cause of action or
claim
shall be forever barred. In the event of differences between the
terms and
conditions of this Agreement and any other agreement between the
parties,
the terms and conditions of this Agreement shall
control.
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13.
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Indemnification
- The Client and InPulse™ mutually agree to indemnify, defend and hold
harmless each other and their respective directors, officers, employees
and agents from and against all liabilities and expenses whatsoever,
including without limitation, claims, damages, judgments, awards,
settlements, investigations, cost and reasonable attorney fees, which
either party may incur or become obligated to pay arising out of,
resulting from, or relating to (i) any products or services marketed
under
the terms of this Agreement, or (ii) breach by either party of any
of its
representations, obligations, agreements or duties under this
Agreement.
The aggrieved party will immediately
(within seven (7) days) notify the aggrieving party in writing of
any
claims threatened or asserted against the aggrieved party. The aggrieved
party shall have the right to satisfy and discharge the same by suit
or
settlement or otherwise. The amount of any claim determined to be
due by
way of suit, settlement, or otherwise shall immediately become due
and
payable by the aggrieving party to the aggrieved party upon
demand.
Under this Agreement both parties
agree to
promptly notify (within seven (7) days) the other party in writing
of any
and all claims threatened or asserted against them. Each party reserves
the right, at its own expense, to contest such claims. If either
party is
actively contesting a claim, the contesting party shall not settle
with
claimant without the other party to this Agreement's written
consent.
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14.
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AttorneyFees
- In the event of legal action or other proceedings brought
because of an alleged dispute, breach, default or misrepresentation
in
connection with this Agreement, the prevailing party shall be entitled
to
recover reasonable attorney's fees, expenses and costs incurred,
in
addition to any other relief to which they may be entitled by
law.
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15.
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Entire
Agreement - This Agreement and its attached Exhibits, constitutes
the entire understanding between InPulse™ and Client and supersedes all
negotiations, representations, prior discussions and preliminary
agreements between the parties relating to the subject matter hereof.
Any
modification or addenda must be in writing and signed by both
parties.
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Proprietary
and Confidential to InPulse™ Response Group
3
InPulse
Response Group, Inc. - Amerelite Solutions
February
8, 2006
Page 4
of 5
InPulse
RESPONSE
GROUP
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16.
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Controlling
Law - The validity, interpretation, and performance of this
Agreement, will be controlled and construed under the laws of the
County
of Maricopa, State of Arizona, in the United States of America. Exclusive
jurisdiction and venue for any litigation regarding this Agreement
shall
be in the Maricopa County, Arizona Superior Court or the United States
District Court for the District of Arizona, Phoenix
Division.
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17.
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Further
Action - InPulse™ and Client shall execute and deliver all
documents, provide all information and take or forebear from all
such
action as may be necessary or appropriate to achieve the purposes
of this
Agreement.
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18.
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Severability
- In the event that any provision contained herein is held to be
invalid,
illegal or unenforceable by any court, such provision will be deemed
severable from the remainder of this Agreement, and shall not affect
the
remaining provisions of this
Agreement.
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19.
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Presumptions
- InPulse™, and Client jointly prepared this Agreement so any
interpretation herein shall not be strictly construed against either
party.
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20.
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Waiver
- The failure of either InPulse™ or Client to take affirmative action,
with respect to any conduct of the other which is in violation of
this
Agreement, shall not be construed as a waiver of the violation or
breach,
nor shall it be construed or deemed to be a waiver of any rights
of the
parties.
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21.
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Publicity
- Any publicity concerning the relationship established by this Agreement
shall be released only upon mutual consent of both InPulse™ and Client.
InPulse™ and Client agree that InPulse, and/or any of its authorized
representatives may use Client's name as a reference, or as part
of
InPulse™'s Client list, in any written or oral proposal which InPulse™ may
make to prospective Clients, provided Client is notified prior to
disclosure and that such use of this information shall not constitute
a
disclosure of confidential
information.
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22.
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Authorization
- Both parties represent and warrant that they are duly organized
and in
good standing and are authorized to enter into this Agreement. The
person
executing this Agreement on behalf of either party is authorized
to
execute and deliver the same on behalf of that party and to bind
that
party. Further, the person executing this Agreement on behalf of
either
party agrees to indemnity each other from and against any damages
that the
other party may sustain in the event that it is determined that such
person was not authorized to sign this
Agreement.
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23.
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Notices
- Notices for this Agreement must be in writing and shall
be
delivered by hand or by postage prepaid, registered or certified
U.S. mail
with return receipt requested, or by Federal Express or UPS, to the
parties at the following addresses:
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| For
InPulse Response Group, Inc.
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▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
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For
AMERELITE SOLUTIONS
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| By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ |
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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President
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3/1/06
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2/23/06
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Date
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Date
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Proprietary
and Confidential to InPulse™ Response Group
4
InPulse
Response Group, Inc. - Amerelite Solutions
February
8, 2006
Page 5
of 5
InPulse
RESPONSE
GROUP
Exhibit
A: Inbound Pricing Agreement
Program
Name: Collagen Fusion
Client
Name: Amerelite Solutions
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Administrative
Fees:
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Program
Set-Up Fee:
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$1,500
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Must
be paid before calls commence
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Monthly
Service Minimum:
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$5,000
waived for 60 days
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Any
difference between actual Monthly ▇▇▇▇▇▇▇▇ (using
media
calendar) and the minimum will be billed to client.
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Security
Deposit:
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If
required, after InPulse Credit Review
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If
required, must be paid before calls commence.
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Telemarketing
Fees:
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Commission
per Order
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3%
or $3.00 whichever is greater. Also, there will be a
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$0.50
per unique read, negative option, continuity sale.
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Talk
Time Charge
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$0.0150
per second
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Informational
Announcement Time
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$0.004
per second
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Customer
Service
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Training
Fees:
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Specialized
Training after Program Launch
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$15.00
per telesales consultant, per hour
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Subsequent
to initial agreed upon training
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Reporting/Data
Transmission Fees:
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Customized
Reporting
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$150
per customized programming hour
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As
requested by client and agreed to in writing
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Additional
services are available upon request
| InPulse Response Group, Inc. |
Amerelite
Solutions
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President
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3/1/06
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2/23/06
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Date
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Date
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