Advertising Production, Media-Buying and Call Center Agreement - Futuredontics Inc. and Attorneys.com Inc.
ADVERTISING PRODUCTION, MEDIA-BUYING AND CALL CENTER AGREEMENT
This advertising production, media-buying and call center agreement
("Agreement") is entered into as of March 28, 2001, by and between
Futuredontics, Inc., a California corporation with its principal offices at 6060
Center Drive, 7th Floor, Los Angeles, California 90045 ("Futuredontics") and
Attorneys.com, Inc., a Florida corporation with its principal office at 186
Attorneys.com Court, Lake Helen, Florida 32744-0280 ("Attorneys"). Futuredontics
and Attorneys jointly will be referred to in this Agreement as the "Parties".
RECITALS
Futuredontics has substantial experience in (1) the production of
television advertisements designed to elicit direct response from consumers
("Advertisements"); (2) the placement of Advertisements and buying the media
time to run the Advertisements through Futuredontics' affiliate 1-800-Marketing,
Inc.; and (3) the operation of a telephone call center to handle the consumer
calls generated by the Advertisements. Attorneys is in the process of launching
a new marketing program for lawyers, modeled closely on the business model
established and developed by Futuredontics.
In October, 2000, the Parties entered into an agreement for
Futuredontics to provide consultative services to Attorneys in the areas of (1)
the operation of direct response marketing programs for professionals; (2)
marketing and selling memberships in such programs to professionals; and (3)
promoting such services to the public. Attorneys now wishes to engage
Futuredontics to produce Advertisements, buy the media time to air those
Advertisements, and assist Attorneys in the formation of a call center for
Attorneys pursuant to the following terms and conditions. Futuredontics wishes
to be so engaged.
NOW, THEREFORE, the Parties agree as follows ("Agreement"):
TERMS AND CONDITIONS
1 DUTIES OF FUTUREDONTICS. Futuredontics will not be obligated to devote
any specific amount of time or effort under this Agreement, but will
devote as much time, effort and skill in carrying out its duties as
necessary to achieve the Parties' goals in entering into this
Agreement; provided, however, that Futuredontics will act with all
possible speed in order to help Attorneys meet their deadlines.
2 CREATION AND PRODUCTION OF ADVERTISEMENTS. Futuredontics will create
scripts for Attorneys ("Scripts"), which Attorneys will submit to the
Florida Bar (the "Bar") for approval. From whatever Scripts are
approved by the Bar, Futuredontics will produce 7 English-language
Advertisements for Attorneys, 3 of which will also be produced in
Spanish ("Advertisements"). The fee to Attorneys will be
Futuredontics' cost to produce the Advertisements plus 10% mark-up
("Production Costs"). The Production Costs will include, without
limitation, Futuredontics' out-of-pocket expenses incurred in the
production of the Advertisements; the cost of time spent by
Futuredontics personnel in producing the Advertisements and meeting
with Attorneys
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personnel; travel expenses related to the production; Federal Express
costs; and the cost of tape reproduction. The Parties anticipate that
the Production Costs will be approximately $100,000.00. Futuredontics
will not spend more than $125,000.00 on the Production Costs, however,
without first obtaining Attorneys' written authorization to exceed
that amount.
2.1 APPROVAL BY ATTORNEYS. Futuredontics will submit the Scripts to
Attorneys, which Attorneys will approve or disapprove within 5
business days after receipt. Once Attorneys has approved the
Scripts, Attorneys will submit the Scripts to the Bar for
approval. Upon receipt of approval from the Bar, Attorneys will
select 7 scripts from those approved by the Bar for production
by Futuredontics in English ("Chosen Scripts"). In addition,
Attorneys will designate 3 of the Chosen Scripts to be produced
in Spanish. Futuredontics will provide Attorneys with
storyboards for the Chosen Scripts ("Storyboards"), which
Attorneys will approve or disapprove. Attorneys failure to
disapprove of the Storyboards in writing within 5 days after
receipt will be deemed approval.
2.2 LIABILITY FOR ILLEGALITY OF ADVERTISEMENTS. Attorneys will
provide Futuredontics with a detailed description of the legal
requirements for advertising by lawyers in the jurisdictions in
which Attorneys wishes to air the Advertisements ("Legal
Requirements"). While Futuredontics will use its best efforts
to ensure that the Advertisements comply with the Legal
Requirements, after Attorneys' approval of the Scripts under
Section 2.1 Futuredontics will have no liability arising from
the failure of the Advertisements to comply with the Legal
Requirements and Attorneys alone will bear any and all such
liability.
2.3 DEPOSIT FOR PRODUCTION COSTS. Upon execution of this Agreement,
Attorneys will deposit $100,000.00 with Futuredontics, which
Futuredontics will dispense as necessary during the production
of the Advertisements (the "Deposit"). If the Deposit in its
entirety is dispensed before the Advertisements are completed,
Futuredontics will provide Attorneys with a monthly accounting
of how the Deposit was spent, and Attorneys will make an
additional deposit with Futuredontics. The amount of the
additional deposit will be determined by the Parties at such
time as the additional deposit becomes necessary.
2.4 FINAL ACCOUNTING. When the Advertisements have been completed,
Futuredontics will provide Attorneys with a final accounting of
the Production Costs ("Final Accounting"). If any balance is
owed to Futuredontics in excess of the Deposit, Attorneys will
remit such balance to Futuredontics within 30 days after
receipt of the final accounting. If any balance is owed by
Futuredontics to Attorneys, Futuredontics will remit said
balance to Attorneys along with the Final Accounting.
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3 MEDIA-BUYING.
3.1 TERM OF EXCLUSIVE ENGAGEMENT. Attorneys hereby engages
Futuredontics as its exclusive media-buying agency for a period
of two years beginning on the first day of the first month for
which Futuredontics first buys media for Attorneys ("Exclusive
Engagement Term"). By way of example but not limitation, if
time is first bought for Attorneys' Advertisements to run in
June of 2001, the Exclusive Engagement Term will begin on June
1, 2001 and terminate on May 31, 2003, unless the media-buying
relationship is terminated sooner for cause pursuant to Section
3.8 below.
3.2 MEDIA-BUYING DUTIES OF FUTUREDONTICS. On behalf of Attorneys,
Futuredontics will purchase air time for the running of the
Advertisements in accordance with a monthly media-buying plan
to be agreed upon by the parties monthly in advance
("Media-buying Services"). The Parties will agree on the gross
monthly budget no less than thirty-five days preceding the
month concerned ("Gross Media Budget"). The cost to Attorneys
will be 95% of the Gross Media Budget and Attorneys will
deposit with Futuredontics 95% of the Gross Media Budget no
less than 30 days prior to the start of that month in which the
media is to be broadcast ("Advertising Month"). Futuredontics
will have no obligation to buy the media unless Attorneys'
deposit is received at least 30 days prior to the start of the
Advertising Month. In addition to Media-buying Services,
Futuredontics will (1) traffic copies of the Advertisements to
the various media outlets that are chosen in the Gross Media
Budget; (2) provide Attorneys with weekly reports based on the
call center data available to Futuredontics; and (3) provide
Attorneys with copies of all gross invoices from media outlets
for which Attorneys has been charged.
3.3 AUTHORIZATION TO ACT; APPROVALS. Upon the written authorization
of Attorneys' Chief Executive Officer or Chief Operating
Officer, Futuredontics is authorized to act on behalf of
Attorneys in the purchasing of advertising and other forms of
communications. Attorneys agrees to be responsible for
non-cancelable contracts and incidental charges related to such
advertising and communications.
3.4 CHANGES AND CANCELLATIONS. Attorneys may request changes or
cancellations or require that a work in progress be stopped;
provided, however, that Attorneys will reimburse Futuredontics
for any unrecoverable expense(s). In general, the notice
required to cancel or change a media buy is three weeks prior
to the broadcast date.
3.5 INDEMNIFICATION OF FUTUREDONTICS BY ATTORNEYS. Futuredontics is
acting solely as Attorneys' agent in the placement of Attorneys
Advertisements. As such, it is authorized by Attorneys to
purchase advertising space within budget and Attorneys agrees
to indemnify, hold harmless and defend Futuredontics from and
against any liability incurred by Futuredontics while acting as
Attorneys' agent. By way of example, but not limitation,
Attorneys will indemnify Futuredontics against any loss
incurred as a result of claims or proceedings brought against
Futuredontics based on advertising approved by Attorneys for
publication or broadcast.
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3.6 FEE. Futuredontics will retain 10% of the Gross Media Budget as
compensation for its services in connection with media-buying
("Media-buying Fee"). In the event that media outlet(s) offer
to run the Advertisements and pay a commission in excess of 15%
to Futuredontics, Attorneys and Futuredontics will split the
commission to the extent that it exceeds 15% of the Gross Media
Budget.
3.7 EXPENSES. In addition to paying Futuredontics the Media-buying
Fee, Attorneys will reimburse Futuredontics for all
out-of-pocket costs arising in connection with media-buying.
Such expenses will include, without limitation, Federal Express
charges for trafficking Advertisements to media outlets and
paying media invoices on Attorneys' behalf. Futuredontics will
advance such expenses and submit invoices to Attorneys for
reimbursement accompanied by supporting documentation.
Attorneys will reimburse Futuredontics for such expenses within
10 days after receipt of invoices and documentation.
Futuredontics will not incur any single expense in excess of
$1,000.00 without obtaining prior written approval from
Attorneys.
3.8 TERMINATION OF MEDIA-BUYING. As a material inducement for
Futuredontics to provide services under this Agreement in the
areas of creation and production of advertisements and call
center incubation, Attorneys agrees not to cancel the
media-buying agreement before the expiration of the Exclusive
Engagement Term, except for cause as defined herein ("Cause").
For the purpose of this Section 3.8, Cause is defined as
Futuredontics' gross negligence or willful misconduct in the
performance of its obligations under this Agreement ("Default")
and failure to cure such Default within 30 days after receiving
written notice of Default from Attorneys.
3.8.1 Except in the case of a Termination for Cause under
Section 3.8, in the event Attorneys engages another
agency to buy its media during the Exclusive
Engagement Term, Attorneys agrees to pay Futuredontics
a fee of 10% of the amount they spend on media buys
made by the other agency, regardless of the commission
Attorneys is required to pay the other agency.
4 CALL CENTER INCUBATION. Futuredontics agrees to incubate a call
center for Attorneys as follows:
4.1 TERM FOR CALL CENTER SERVICES. Futuredontics will provide
services under this Section 4 for an initial term of 6 months
beginning on June 1, 2001, ("Initial Call Center Term"), and
thereafter on a month-to-month basis ("Renewal Call Center
Term"). Either party may terminate the Call Center Incubation
portion of this Agreement after the expiration of the Initial
Call Center Term by giving 90 days' written notice.
4.1.1 Attorneys acknowledges that Futuredontics will hire
and train Call Center personnel prior to the official
launch date, and that Attorneys will be responsible
for expenses related to hiring and training. Attorneys
will pre-approve the number of personnel to be hired
and the time frames for hiring. While Futuredontics
will endeavor to limit the training period to three
weeks, Attorney
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acknowledges and agrees that the training period may
last for up to five weeks prior to the official launch
date. Attorneys agrees to notify Futuredontics of the
Official Launch Date no less than six weeks prior to
that date.
4.2 SERVICES. It is anticipated by the Parties that following the
Initial Call Center Term and any Renewal Call Center Term(s),
Attorneys will establish its own call center in Florida. During
the Initial Call Center Term and any Renewal Call Center
Term(s), Futuredontics will:
4.2.1 Provide call handling services for the 1-800-ATTORNEYS
telephone number at Futuredontics' call center in Los
Angeles; provided, however, that if the call volume
generated by the Attorneys Advertisements exceeds that
which can be handled by 25 call center operators at
any one time, it may become necessary for
Futuredontics to outsource some portion of the
Attorneys call handling. Attorneys acknowledges that
Futuredontics currently operates its call center
during the following Pacific Standard Time hours:
Monday and Tuesday from 5:00 AM until 8:00 PM;
Wednesday and Thursday from 5:00 AM until 7:00 PM;
Friday from 5:00 AM until 6:00 PM; and Saturday from
6:00 AM until Noon. Attorneys further acknowledges
that Futuredontics does not operate its call center at
night and, therefore, with regard to call center
operations during the nighttime hours, the Parties
will jointly decide exactly what the hours of
operation of the Futuredontics call center will be
after the Attorneys Advertisements begin to run and
the call volume can be analyzed.
4.2.2 At Attorneys' request, train one or more call center
supervisors for Attorneys ("Trainee(s)") at
Futuredontics' call center; provided, however, that
Trainee(s) will be hired and employed by Attorneys and
Attorneys will be responsible for all expenses
associated with the employment and training of
Trainee(s).
4.2.3 Assist Attorneys in the preparation of call-handling
scripts;
4.2.4 Advise Attorneys with respect to staffing guidelines
based on call-handling volume;
4.2.5 Advise Attorneys with respect to purchase of telephony
equipment, computer hardware, computer software and
other purchases necessary for Attorneys to operate its
own call center; and
4.2.6 To the extent that it is commercially reasonable for
both Parties, Futuredontics will adapt its proprietary
software (Futuredontics' Software) for use in the
1-800-Attorneys referral system. In the event it is
deemed by either Party not to be commercially
reasonable to adapt the Futuredontics' Software,
Futuredontics will advise Attorneys on the purchase of
third party software that has been designed for
attorney referral services. If Futuredontics is able
to adapt the Futuredontics' Software for Attorneys'
use, then at such time as Attorneys operates its own
call center, Futuredontics will license the
Futuredontics' Software to Attorneys at a reasonable,
market price that will be negotiated by the Parties at
that time.
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4.2.7 Such other miscellaneous services as the Parties agree
is necessary for the successful incubation of
Attorneys' own call center.
4.3 CALL CENTER COSTS. Futuredontics will provide services under
this Section 4 at its cost plus 10% mark-up. Attorneys agrees
to bear each and every expense associated with Futuredontics'
performance of its duties under this Section 4. Attorneys will
reimburse Futuredontics for all costs that are incurred in the
performance of Futuredontics' duties under this Section 4
("Call Center Costs") upon receipt of billing from
Futuredontics; provided, however, that Futuredontics will
obtain Attorneys written authorization before incurring any
single expense in excess of $1,000.00. Call Center Costs will
include, without limitation, all out-of-pocket expenses
incurred by Futuredontics as well as the cost of staff time
spent by Futuredontics' employees in the course of fulfilling
Futuredontics' duties under this Section 4.
4.3.1 ESTIMATION OF COSTS. The Parties agree and acknowledge
that, due to the large number of variables involved,
it is not possible to predict the Call Center Costs
with great accuracy. Nevertheless, as a planning tool,
Futuredontics will provide to Attorneys a computerized
Call Center Costing Tool in the form of an Excel
spreadsheet.
5 NO RIGHT TO ASSIGN. Neither Party may assign this Agreement without
the prior written consent of the other, which consent shall be given
solely in the discretion of the Party from whom consent is sought;
provided, however, that this provision shall not be construed to
prevent either Party from entering into a bona fide merger, or from
selling or assigning this contract along with substantially all of its
assets to a third party.
6 PROPRIETARY COVENANTS.
6.1 COVENANT NOT TO USE OR DISCLOSE TRADE SECRETS. In the course of
performing this Agreement, a party hereto may reveal
confidential information and trade secrets to the other party.
During the Term of this Agreement and for a period of 2 years
thereafter, each party will regard and preserve as confidential
Confidential Information as defined in paragraph 6.1.1 below
pertaining to a party and its affiliates that has been or may
be obtained by the other party in any way by reason of the
parties agreement hereunder. Neither party will, without the
prior and specific written consent of the other party (i) use,
publicize, release or disclose to others, either during or
after the Term (as set forth above), any trade secrets or other
Confidential Information or (ii) take or retain or copy any of
a party's specifications, drawings, reproductions, customer
lists, or other documents or things. This provision will not
apply to any information that has been publicly disclosed by
the party to which such Confidential Information relates,
independently developed and disclosed by others, or otherwise
enters the public domain through lawful means. The foregoing
will not be construed to (A) limit Attorneys' right to use
Confidential Information in the operation of their
800-Attorneys telephone-based attorney referral service; and
(B) information required to be disclosed in a judicial or
administrative proceeding, or as otherwise required to be
disclosed by law, in any such case after all reasonable legal
remedies for maintaining such information in confidence have
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been exhausted, including, but not limited to, giving a party
not less than 10 days prior written notice of the possibility
of such disclosure so that the non-disclosing party may attempt
to stop such disclosure or obtain a protective order concerning
such disclosure.
6.1.1 DEFINITION. For purposes of this Agreement, the term
"Confidential Information" will mean: (A) all and any
trade secrets of a party hereto, including without
limitation, information encompassed in all drawings,
designs, plans, proposals, marketing and sales plans,
customer lists, financial information, costs, pricing
information; and (B) all concepts or ideas, in or
reasonably related to the business of a party hereto
that has not previously been publicly released by its
duly authorized representative.
6.2 UNFAIR COMPETITION. During the Term, and for a period of two
years thereafter ("Non-competition Period"), the Parties agree
not to compete, promote, participate in or engage in any
activity or other business, either directly or indirectly,
whether as a partner, contractor, shareholder, or otherwise in
competition with the business engaged in by the other Party at
the time this Agreement is executed. Thus, Futuredontics agrees
to forbear from engaging in the attorney referral service and
the bar association directory service and Attorneys agrees to
forbear from engaging in the dentist referral service during
the Non-competition Period. Each Party agrees to disclose to
the other Party any and all competitive plans which the
disclosing Party may have under consideration whether or not
the disclosing Party intends to act upon them. In addition,
during the Term of this Agreement, Futuredontics shall not
perform any work of a substantially similar nature for any
competitor of Attorneys. Breach of this provision shall
constitute a material breach of this Agreement.
6.3 COVENANT NOT TO DIVERT. During the term of this Agreement and
for a period of two years thereafter, the Parties will not
directly or indirectly solicit, induce, attempt to induce or
endeavor to entice away any employee of the other Party,
whether for their own account or for the account of a
third-party.
6.4 To the extent that Futuredontics has transferable rights
therein, the parties acknowledge and agree that the services
are being performed and that any programs, photographic
materials, documentation and other written materials, prepared
or edited by Futuredontics under this Agreement (the "Work")
are being created at the request of Attorneys, that the Work
will be deemed a work made for hire under the United States
copyright laws, and that Attorneys will have the unlimited
right to supervise, control and direct Futuredontics as to all
aspects of the creation of the Work. Attorneys will have the
right to use the whole Work, or any parts thereof, or none of
the Work, as it sees fit. Attorneys may alter the Work, add to
it, or combine it with any other work or works, in its sole
discretion. All rights in and to the Work and all material
submitted by Futuredontics to Attorneys as part of the Work or
part of the process of creating the Work, including but not
limited to programs, listings, electronic files, printouts,
reports, documentation, and notes will be the property of
Attorneys whether or not it uses such material. No rights are
reserved to Futuredontics.
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7 WARRANTIES
7.1 WARRANTY OF ATTORNEYS. With regard to the name and service mark
"1-800-DENTIST(R)" (the "Mark"), Attorneys acknowledges that
Futuredontics holds a license to use the Mark with respect to
the operation of a cooperative advertising service for dentists
under license from Applied Anagramics, Inc. Attorneys further
acknowledges that the unauthorized use of the Mark will cause
irreparable damage to Futuredontics, which could include the
loss of the license. Attorneys therefore warrants that it will
not use the Mark nor authorize others to use the Mark without
the prior written consent of Futuredontics. Because of the
irreparable nature of the harm that may arise from a breach of
the warranty contained in this paragraph, Attorneys agrees
that, in addition to all other remedies Futuredontics may have
at law under this Agreement, Futuredontics will be entitled to
obtain injunctive relief to restrain a breach or threatened
breach of this warranty.
7.2 WARRANTY OF FUTUREDONTICS. With regard to the name and service
mark "1-800Attorneys(R)" and similar names and marks (the
"Attorneys Mark"), Futuredontics acknowledges that Attorneys
owns all right, title and interest in and to the Attorneys Mark
and that the unauthorized use of the Attorneys Mark will cause
irreparable damage to Attorneys. Futuredontics therefore
warrants that it will not use the Attorneys Mark nor authorize
others to use the Attorneys Mark without the prior written
consent of Attorneys. Because of the irreparable nature of the
harm that may arise from a breach of the warranty contained in
this paragraph, Futuredontics agrees that, in addition to all
other remedies Attorneys may have at law under this Agreement,
Attorneys will be entitled to obtain injunctive relief to
restrain a breach or threatened breach of this warranty. In
addition, Futuredontics also warrants that all Work provided or
performed by Futuredontics hereunder by it or its
subcontractors shall be original work or duly licensed work and
shall not infringe in any manner the intellectual property
rights of any third parties including without limitation any
trademarks, trade secrets, copyright rights or other
intellectual property rights, except as otherwise disclosed by
Futuredontics in writing to Attorneys and provided that
Futuredontics is authorized in writing by Attorneys to proceed
with the publication and/or use thereof notwithstanding such
disclosure.
7.3 INDEMNIFICATION.
7.3.1 Futuredontics shall defend, indemnify and hold
harmless Attorneys from any claims, demands, losses,
fees and expenses (excluding attorney's fees) incurred
by Attorneys arising out of Futuredontics gross
negligence or willful misconduct in the creation or
promulgation of any Work or services provided
hereunder; provided Attorney's gives Futuredontics
prompt notice of any such claim, Futuredontics has the
sole right to defend or settle each such claim and
Attorneys shall fully cooperate with Futuredontics.
Attorneys may be represented by its own counsel at its
own expense.
7.3.2 It shall be Futuredontic's responsibility to obtain
necessary consents, licenses, releases or other
authorization for the use of all materials, properties
or services in connection with the Work or services
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provided hereunder; provided, however, that Attorneys
alone shall be responsible for obtaining all
governmental or regulatory approvals that are required
before the Advertisements can be aired.
7.3.3 Futuredontics will use its best efforts to protect
Attorneys against any claims for the unauthorized use
of name or likeness of any person; libel; slander;
defamation; disparagement; piracy; plagiarism; idea
misappropriation; infringement of copyright title,
slogan or other property right; and any invasion of
the right of privacy.
7.3.4 It will be Attorney's responsibility to (i) provide
truthful information and/or data relevant to claims or
representations made with respect to its products or
services, (ii) review all public relations or other
materials prepared under this Agreement and submitted
by Futuredontics to Attorneys in writing in order to
confirm that such claims or representations, whether
direct or implied, are accurate, and are not deceptive
or misleading of the descriptions and depictions of
its products and services and/or any competitive
products, (iii) defend, indemnify and hold harmless
Futuredontics from any claims, demands, losses, fees,
and expenses, (excluding attorney's fees) incurred by
Futuredontics arising out of any product claims or
product representations of Attorneys products or
services or those of its competitors approved in
advance in writing by Attorneys; provided
Futuredontics gives Attorneys prompt written notice of
any such claim, Attorneys has the sole right to defend
or settle on such claim and Futuredontics shall fully
cooperate with Attorneys. Futuredontics may be
represented by its own counsel at its own expense.
8 LIMITATION OF LIABILITY; INSURANCE.
NEITHER PARTY SHALL BE LIABLE FOR: (i) SPECIAL, DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, TORT OR COVER DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES RESULTING FROM DELAY OF DELIVERY OR LOSS OF
PROFITS, DATA, BUSINESS OR GOODWILL, WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii)
ANY CLAIM THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION
OF SUIT THEREON.
9 INDEPENDENT CONTRACTOR. Futuredontics acknowledges and agrees that its
relationship to Attorneys is exclusively that of an independent
contractor, and that Attorneys' obligations to Futuredontics are
exclusively contractual in nature.
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10 TERMINATION.
10.1 Attorneys may terminate this Agreement upon material breach by
Futuredontics if such breach is not cured within thirty (30)
days notice from Attorneys. In the event of such termination,
neither party shall have any further liability to the other
except for Attorneys obligation to Futuredontics to pay
pursuant to Sections 2, 3.6 and 4.3 for actual time and
expenses and mark-up incurred prior to the termination. In the
event of termination, all right, title and interest in and to
the Work shall belong to Attorneys.
10.2 Material breach of this Agreement shall consist of the material
failure of Futuredontics to carry out the Work or to provide
the services contemplated herein after being given 30 days
written notice thereof, (ii) breach of the confidentiality
provisions of Section 6, or (iii) violation of Sections 6.2 and
6.3
10.3 Upon any termination of this Agreement, Futuredontics shall
immediately deliver to Attorneys all materials in any medium
received from Attorneys or developed by Futuredontics (or any
part thereof) in connection with performing any services
hereunder, or the Work.
11 NOTICES. All notices, statements and other documents that any party is
required or desires to give to the other party hereunder will be given
in writing and will be served in person, by express mail, by certified
mail, by overnight delivery or by facsimile at the respective
addresses of the parties as set forth below, or at such other
addresses as may be designated in writing by such party in accordance
with the terms of this Section 11.
IF TO FUTUREDONTICS: Futuredontics, Inc.
6060 Center Drive, 7th Floor
Los Angeles, California 90045
Attention: Susan Keenberg, General Counsel
Facsimile: 310-215-6623
IF TO ATTORNEYS: Attorneys.com, Inc.
186 Attorneys.com Court
Lake Helen, Florida 32744
Attention: Peter S. Balise, President
Bill Wrigley, COO
Facsimile: 904-228-0276
Delivery will be deemed conclusively made (i) at the time of
service, if personally served, (ii) when deposited in the United
States mail, properly addressed and postage prepaid, if delivered by
express mail or certified mail, (iii) upon deposit with the private
overnight deliverer, if served by overnight delivery, and (iv) at
the time of electronic transmission (as confirmed in writing),
provided a copy is mailed within twenty-four (24) hours after such
transmission. The time to respond to any notice will run from the
time the notice is actually delivered to the person to whom the
notice is addressed.
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12 GENERAL TERMS AND CONDITIONS.
12.1 APPLICABLE LAW AND JURISDICTION. This Agreement will be
governed by and construed in accordance with the laws of the
State of California (without regard to conflicts of laws
principles), and the parties hereby consent to the jurisdiction
of the courts of competent jurisdiction in Los Angeles County,
California over all matters relating to this Agreement.
12.2 BINDING EFFECT. All the terms and conditions of this Agreement
will be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
12.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, and all
such counterparts together will constitute but one agreement.
12.4 DESCRIPTIVE HEADINGS. The paragraph and section headings in
this Agreement are for convenience only and will not control or
affect the meaning or construction of any provision of this
Agreement.
12.5 ENFORCEABILITY; SEVERABILITY. If any provision of this
Agreement is deemed to be invalid or unenforceable, in whole or
in part, such provision will be deemed to be modified or
restricted to the extent and in the manner necessary to render
the same valid and enforceable, or will be deemed excised from
this Agreement, as the case may require, and this Agreement
will be construed and enforced to the maximum extent permitted
by law as if such provision had been originally incorporated
herein as so modified or restricted, or as if such provision
had not been originally incorporated herein, as the case may
be.
12.6 FACSIMILE SIGNATURES. The signature on this Agreement of any
party that is faxed to the other party, will be deemed an
original signature for the purpose of enforcement of this
Agreement.
12.7 INTEGRATION; MODIFICATION. This Agreement constitutes the
entire understanding and agreement between the Parties
regarding its subject-matter and supersedes all prior
negotiations and agreements, whether oral or written, between
them with respect to its subject-matter. This Agreement may not
be modified except by a written agreement signed by the
Parties.
12.8 INTEREST AND COSTS; ATTORNEYS' FEES. In the event of any legal
proceeding, litigation or alternative dispute resolution
between the parties respecting or arising out of this
Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees and other costs in connection
therewith, including, without limitation, any attorneys' fees
incurred after a judgment has been entered by a court of
competent jurisdiction.
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12.9 WAIVER. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as
a waiver of any prior or subsequent breach; provided, however,
that either party to this Agreement may waive any obligation
owed to such party, if such waiver is in writing signed by an
authorized signer.
13 FORCE MAJEURE. In the event of substantial or total inoperability of
Futuredontics' equipment, site, and personnel due to an event of force
majeure, Futuredontics promises to use the same efforts to maintain a
continuous supply of Work and services to Attorneys that it uses to
maintain Futuredontics' own business activities. To the extent that
additional costs arise from the provision of services under this
Agreement following an event of force majeure, Attorneys will have the
right to approve or disapprove any such additional costs, which costs
shall be itemized by Futuredontics and not subject to the 10% mark-up
specified in Section 4.3. If Attorneys disapproves such additional
costs, Futuredontics will be absolved from any obligation to maintain
Work and services to Attorneys. Events of force majeure include, but
are not limited to, earthquake, devastation from floods, power
failures and fire. Futuredontics shall verbally notify Attorneys of
any event of force majeure as soon as is practical. A written
notification of the event of force majeure ("Event") and how Attorneys
will be serviced following the Event will be submitted to Attorneys as
soon as commercially practical following the Event.
In Witness Whereof, the Parties have executed this Agreement.
Futuredontics, Inc. Attorneys.com, Inc.
By: /s/ Alfred J. Joyal 3/28/01 By: /s/ Peter S. Balise 3/28/01
------------------------------- -----------------------------
Alfred J. Joyal Date Peter S. Balise Date
Chief Executive Officer President
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