Agreement - American Society for Psychoprophylaxis in Obstetrics Inc. (ASPO/Lamaze) and Medical Communications Corp.
AN AGREEMENT BETWEEN ASPO/LAMAZE
AND
MEDICAL COMMUNICATIONS CORPORATION
This is an agreement between The American Society for Psychoprophylaxis in
Obstetrics, Inc. (ASPO/Lamaze) and Medical Communications Corporation (MCC).
Intent
1. The intent of this agreement is for ASPO/Lamaze to: (a) permit MCC, to
develop pre-natal and post-natal educational video cassettes for
distribution to ASPO/Lamaze students by ASPO/Lamaze instructors, and to
Lamaze Family members under the name of LAMAZE FAMILY PRODUCTIONS, and
(b) provide educational consultation to MCC in the development of such
educational video cassettes.
2. The videos, in a format similar to the MCC production entitled Your
Healthy Baby, will be financially underwritten by private industry who,
in return for their funding, will be permitted appropriate and
documentary style in-use exposures of their products in the videos, the
inclusion of printed informational/education advertorials in booklet
form, and, possibly, coupons redeemable for their products.
The Programs
3. The video programs will focus on pre-natal and post-natal subjects
which MCC will develop with consultation from ASPO/Lamaze instructors
and staff, discussion with healthcare experts, and study of current
pre-natal/post-natal issues.
4. MCC will create videos in three different categories. [Others may be
added if both parties agree that they are appropriate; of educational
value and a financially sound undertaking.] The three categories,
though not in order or priority of production, are:
A. Pre-Natal Program(s)
Intended for the ASPO/Lamaze mother in her 7th month. Offered by
ASPO/Lamaze instructors (at no charge) as an added benefit to the
course itself.
B. Caring for the Baby During the First Three Months
Intended for distribution to the ASPO/Lamaze mother just before
the birth of her baby. Will be presented by the instructor as a
special graduation- from-course gift and as an expression of
ASPO/Lamaze concern for helping mothers learn more about the
health and well-being and basic care of their babies.
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C. A Program Addressing the Next Twelve Months
These will be programs targeted at The Lamaze Family as currently
presented by ASPO/Lamaze. While the precise content is yet to be
determined, the general intent is to create programs that deal
with the first twelve to eighteen months of an infant's life.
Content may well include tips for infant accident prevention,
labor and time-saying tips, health issues and other parenting
concerns.
D. The Lamaze Family Series
In addition to the above three categories, once the first program
categories have been developed, MCC - with ASPO/Lamaze guidance
and input - will explore developing an on-going series, aimed at
The Lamaze Family members, on parenting and wellness subjects,
although neither party at this time commits itself to such a
series. These programs will carry all the appropriate Lamaze
Family identification. MCC and ASPO/Lamaze will determine whether
the programs may be distributed free or sold to Lamaze Family
members based on the economic viability of free vs. paid
distribution.
5. The production and program introduction schedules will be determined by
MCC and approved by ASPO/Lamaze based on the availability of sponsors,
educational needs and/or demand, financial viability and the time
needed to complete all phases of production, duplication, distribution
arrangements and order fulfillment.
6. It is understood that each of the program described above will, unless
otherwise dictated by ASPO/Lamaze:
- Bear ASPO/Lamaze identification on the cassette box, the cassette
label and the video itself in the form of head and end-title
credits.
- Each cassette will, if ASPO/Lamaze so desires, include a special
message from ASPO/Lamaze, e.g. a Lamaze Family promo explaining
the benefits of membership.
- Each cassette will, if ASPO/Lamaze desires, be packaged with
printed information provided by ASPO/Lamaze to MCC in the
necessary quantities, e.g. Lamaze Family membership applications,
etc.
ASPO/Lamaze Responsibilities and Approvals
7. Educational Consultation
ASPO/Lamaze will provide MCC with consultation, input and direction on
the content of all videos as well as input and approval of all research
questionnaires. ASPO/Lamaze will review and suggest revisions as
necessary, and approve all editorial content according to the approval
schedule outlined below. In providing such consultation,
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ASPO/Lamaze shall draw upon the resources of its staff, childbirth
instructors, and other member experts for both their substantive
knowledge of the video subject matter and their understanding of the
educational needs of the parent audience. It is understood that
ASPO/Lamaze will indemnify MCC against any claims resulting from the
presentation of information either in video or printed form that
ASPO/Lamaze has approved for inclusion in the program. MCC will
indemnify ASPO/Lamaze against any claims arising from the people who
appear in the video - e.g. doctors, Lamaze instructors, and laymen - as
well as any claims arising from license violations and copyright
infringements on any materials including text, art work, video footage,
and music supplied by MCC.
8. ASPO/Lamaze Name, Goodwill, and Copyright
ASPO/Lamaze will provide its name, goodwill, and use of the copyrighted
videos produced hereunder, subject to ASPO/Lamaze approval as to
content and form, in support of developing distribution through its
instructors.
9. Cooperation
ASPO/Lamaze will permit MCC and the Lamaze Parent's Magazine
advertising representative to develop a sales strategy that will
benefit both the magazine and Lamaze Family Productions. That strategy
may call for any of several levels of participation of the advertising
representative based on the size of the task and the ultimate sales
strategy. Where the advertising representative participates in the sale
of space on the video, a mutually agreed upon sales plan will be drawn
up for each program. A plan to coordinate the sales effort will be
developed by both parties. The advertising representative will contract
with and be compensated by MCC for those video sales which the
representative closes, on a commission arrangement. The commission will
be approved by ASPO/Lamaze. If, for any reason, the advertising
representative can not or does not perform these sales responsibilities
and/or can not or does not meet the sales objectives, or if it is
determined by ASPO/Lamaze and MCC that a different sales strategy is in
the best financial interests of Lamaze Family Productions, ASPO/Lamaze
and MCC agree to develop an alternate sales plan.
10. Mailing List
ASPO/Lamaze will provide MCC with the names of ASPO/Lamaze instructors
so that MCC can coordinate and carry out the distribution of the
programs; and MCC shall use such names for no other purpose.
ASPO/Lamaze and MCC recognize that communications - e.g. announcement
of program content, cassette delivery schedules, distribution
verification, etc. with the ASPO/Lamaze instructors will be necessary
to carry out the successful distribution of the programs. At the same
time, both MCC and ASPO/Lamaze recognize that in order to avoid
over-saturating the instructors with mail, the frequency, timing and
content of all communications with ASPO/Lamaze instructors may not be
sent without prior approval by ASPO/Lamaze. ASPO/Lamaze agrees to
respond with rejection, approvals or changes in the planned
communication within 10 days of receipt of the communication content,
plan, and time schedule from MCC. The parties anticipate that there
will be no more than four (4) uses of the ASPO/Lamaze
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mailing list per year hereunder. All costs of these mailings including
printing/duplication, stuffing, envelopes and postage will be paid for
by MCC. MCC shall use the ASPO/Lamaze mailing list only for the
purposes set forth herein, and shall not reproduce or distribute such
list. At the termination of this Agreement, MCC shall immediately
return to ASPO/Lamaze all copies of such list in whatever form, which
may be in its or its agent's possession, and shall refrain from any
further use of such list.
Video and Printed Promotion Material Consultation and Approval Process
11. ASPO/Lamaze will, prior to each video, consult with MCC as to the
desired educational content. Thereafter the consultation and approval
process for each video production and printed piece will be as follows:
a. MCC will submit program content outlines to ASPO/Lamaze.
b. ASPO/Lamaze will review and return comments and changes to MCC
within 10 days of receipt.
c. MCC will incorporate any changes into a first draft script which
will be sent to ASPO/Lamaze for review.
d. ASPO/Lamaze will review the scripts and return comments and
changes to MCC within 15 days of receipt.
e. MCC will make any revisions or changes called for by ASPO/Lamaze
and the final script will be sent to ASPO/Lamaze. If during the
actual production there are any changes to the script, these
changes will be subject to the same consultation and approval
process as noted above. Whenever possible, MCC and ASPO/Lamaze
agree to expedite the approval process with one-on-one meetings or
by phone. All changes resulting from these meetings will be so
noted in the scripts.
f. ASPO/Lamaze will provide MCC with experts, any one of which will,
at MCC expense, be on location during the shooting of the video
demonstrations and mother/baby segments. Their role will be to
advise MCC on educational content such as proper baby-care
procedures, techniques, etc.
g. MCC will produce a "first draft" of the video and a copy or copies
on VHS cassette will be sent or taken to ASPO/Lamaze for review.
ASPO/Lamaze will return comments and changes to be made to MCC
within 10 days of receipt.
h. MCC will send a revised copy of the video in question to
ASPO/Lamaze for final approval. Final approval, or corrections
necessary for final approval, will be submitted to MCC within 10
days. The changes will then be made and re-submitted to
ASPO/Lamaze so that ASPO/Lamaze can verify that the changes have
been made.
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i. While the basic content of any video produced by MCC under the
Lamaze Family Productions name will probably require little change
during the course of the year, the participating sponsors may
change. This will necessitate visual changes in the video in order
to remove the "product-in-use exposures" of those sponsors who do
not choose to participate in subsequent editions. Visual of the
new sponsor will have to be added. Any such changes will be
subject to the same approval process as outlined above.
12. ASPO/Lamaze will retain the right to approve or reject all the sponsors
participating in each program. The approval process will be as follows:
a. Prior to finalizing the production or revision of any program, MCC
will submit to ASPO/Lamaze a list of potential sponsors and
underwriters who MCC feels are appropriate for inclusion in the
program. MCC will use, as a guide, the types of sponsors who have
been and are now acceptable to Lamaze Parent's Magazine. Additions
to this list may be made any time prior to the finalization of the
program in question.
b. ASPO/Lamaze agrees to respond with approvals or deletions within
10 days. ASPO/Lamaze agrees to use essentially the same criteria
used for judging the acceptability of a Lamaze Parent's Magazine
sponsor.
c. ASPO/Lamaze will have the right to review and approve any
statements, claims or implications made by the sponsors in the
video or in the accompanying booklet which may be in conflict with
ASPO/Lamaze principles and philosophy. MCC will present all video
segments and materials for print to ASPO/Lamaze prior to the
finalization of the program in question. ASPO/Lamaze will respond
to these submissions within 10 days of receipt.
d. Until December 31, 1991, ASPO/Lamaze shall have the right, within
its sole discretion, to prohibit inclusion of coupons or any
similar items, merely on the basis that such items are coupons or
are similar thereto.
13. ASPO/Lamaze agrees to do everything possible to maintain all the above
mentioned approval schedules. Should disagreements re content and
approvals arise within ASPO/Lamaze and those staff or board members
concerned with the approval process, it is agreed that a decision by
ASPO/Lamaze to revise, compromise, delete or ignore the change or
suggestion will be made within the scheduled approval period and
forwarded to MCC.
Sponsor/Advertiser Negotiations and Rates
14. MCC retains the right to set and negotiate all terms and rates for the
participating sponsors and to change these terms and rates as the
market dictates or as MCC feels is appropriate to the successful
development, maintenance and growth of the business.
Distribution Plan
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15. MCC plans to distribute each program in four month intervals to help
instructors control inventory and to assure sponsors that programs
bearing their products will, in all likelihood, be distributed within a
three to four month time frame. The total number of cassettes
distributed will be determined both by instructor demands (needs) and
by sponsor participation.
MCC Responsibilities
16. MCC will provide and pay for all the necessary elements of production and
duplication of the cassettes.
a. This includes research, scripting, production, editing, creation
of the cassette box and labels, printing, duplications, packaging
and shipping, and insertion of ASPO/Lamaze copyright notice.
b. MCC will also pay participants in the videos according to Screen
Actor's Guild fee schedules or customary educational video
honoraria.
c. MCC will bring in three experts selected by ASPO/Lamaze to a
mutually convenient meeting city, at MCC expense, for yearly
program planning and development sessions. ASPO/Lamaze will
designate the staff and board members to attend.
17. With prior ASPO/Lamaze approvals relating to content, frequency and
timing, MCC may conduct research related to the content of the
programs, their use, distribution and the markets served by Lamaze
Family Productions, and research designed to help verify the value and
marketing effectiveness of the programs to current and prospective
sponsors and underwriters.
Funding and Expenses
18. MCC will absorb all its start-up and on-going expenses related to its
contribution to sponsor sales, plus all its cost associated with the
production, duplication, and distribution of the programs.
Reimbursement to ASPO/Lamaze
19. a. Sale of Use of Mailing List - For each use of the ASPO/Lamaze
Mailing List, MCC shall pay ASPO/Lamaze $700.00, it being anticipated
that such use will be purchased approximately four times per year. Such
fee shall be paid twice each calendar year, on June 30 and December 31,
to the extent then owed.
b. Use of ASPO/Lamaze Name, Goodwill and Copyright - For the use of
ASPO/Lamaze's name, goodwill, and copyright as allowed hereunder, MCC
shall pay to ASPO/Lamaze a royalty equal to three percent (3%) of Gross
Revenue per cassette (i.e., total advertiser and/or sales revenue
generated).
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[(Example: If eight manufacturers buy Sponsorship space in a program
and each pays $.65 per cassette, the gross income is $5.20. This would
entitle ASPO/Lamaze to a royalty of $.156 per cassette. If the number
of cassettes underwritten by sponsors and distributed by MCC totals
200,000, ASPO/Lamaze would receive a $31,200 royalty.)]
c. Educational Consulting Fee - As compensation for its educational
consultation services provided hereunder in the areas of childbirth
education, wellness and parenting, ASPO/Lamaze shall be paid an
educational consulting fee equal to five percent (5%) of Gross Revenue
per cassette (i.e., total advertiser and/or sales revenue generated).
d. Payment of royalty fees and educational consultation for a
particular video, will be made to ASPO/Lamaze within 15 days of MCC's
receipt of payments from sponsors for such video. MCC will provide a
full accounting with full verification of sponsor and sales revenue;
and ASPO/Lamaze shall have the right on reasonable notice at reasonable
times to inspect MCC records related to such sponsor and sales revenue.
Exclusivity and Term of the Agreement
20. ASPO/Lamaze agrees to give MCC, for a term commencing with the date of
this agreement and ending on December 31, 1994, the exclusive right to
produce and distribute, per the terms outlined in this document,
pre-natal, post-natal and parenting videos to Lamaze students, Lamaze
Family members and others who both parities agree should be included in
the target audiences. This exclusivity excludes any ASPO/Lamaze films
or videos currently in existence, under development or in production as
of the date of this contract. If this Agreement continues into calendar
year 1994, then MCC shall have during such calendar year 1994 only, the
following right of first refusal: if during calendar year 1994
ASPO/Lamaze receives any bona fide offer from a third party to develop
pre-natal or postnatal video cassettes or films for distribution to
ASPO/Lamaze instructors, their students and/or ASPO/Lamaze family
members under ASPO/Lamaze's name, approval or aegis, ASPO/Lamaze shall,
prior to accepting such offer, relay such offer to MCC, whereupon MCC
shall have the right (in lieu of such third party) to enter the same
Agreement with ASPO/Lamaze on terms at least as favorable to
ASPO/Lamaze, as are contained in such third-party offer. MCC must
notify ASPO/Lamaze of its intent to exercise such right within two (2)
weeks of MCC's receiving a copy of such third-party offer to
ASPO/Lamaze.
Termination of Agreement
21. Either ASPO/Lamaze or MCC may terminate the entire agreement after
December 31, 1990, 1991, 1992, or 1993 if it becomes evident that
during the year just ended the venture is not and, in all likelihood,
will not achieve its objective and remain a "self-sustaining financial
enterprise" able to cover and absorb all the attendant expenses and
cost associated with the enterprise.
22. The sole measure of whether the venture is a self-sustaining financial
enterprise, is its having met during the year just ended the following
minimum objectives:
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a. Medical Communications Corporation distributes a minimum of
100,000 programs by December 31, 1990, through ASPO/Lamaze
instructors, and an additional 500,000 cassettes in calendar year
1991, an additional 500,000 cassettes in calendar year 1992 and an
additional 600,000 cassettes in calendar year 1993. (These can be
the same or different programs.) Each cassette must have generated
at least one/half of the target sponsor revenue of $6.20 ($3.10)
in 1990, and two/thirds of the target sponsor revenue of $6.20
($4.13) during each of 1991, 1992 and 1993.
b. In addition, either party can terminate this agreement at once
upon written notice if it has previously given 60 days prior
written notice to the other party of such other party's breach of
contract specifying the breach of the contract that has not been
cured. Termination is the sole remedy for breach: under no
circumstances shall there be liability by either party for any
direct, indirect, special considerations or punitive damages.
Other Considerations
23. For as long as this or subsequent agreements between MCC and
ASPO/Lamaze are in effect, all copyright to the video programs produced
under the Lamaze Family Productions will be held by ASPO/Lamaze. Upon
termination of this or subsequent agreements, the copyright to the
video programs revert to Medical Communications Corporation.
24. Only modifications in writing and signed by both parties can amend this
agreement.
25. Neither party will make any assignment of this agreement or the rights
or obligations herein without the express written consent of the other
party; except that ASPO/Lamaze may assign to a controlled subsidiary
thereof for tax purposes.
26. This agreement is the sole understanding between both parties.
27. The laws of the State of Connecticut shall govern this agreement.
28. MCC anticipates devoting reasonable time and resources (financial and
otherwise) to membership development for general membership in
ASPO/Lamaze and Lamaze Family.
29. Any disputes under this Agreement shall be submitted to arbitration in
Philadelphia, Pennsylvania in accordance with the rules of the American
Arbitration Association.
An Understanding
30. This agreement is based on the understanding and belief that as people
of goodwill, dedicated to building a mutually beneficial enterprise,
both parties can and will cooperate fully to resolve any issues not
covered in this agreement on the basis of what is in the best interest
of the audience, the ASPO/Lamaze instructors, the ASPO/Lamaze name, and
the financial health and viability of Lamaze Family Productions.
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SIGNED AND AGREED TO BY:
For American Society For For Medical Communications
Psychoprophylaxis in Corporation
Obstetrics, Inc.
By: /s/ Francine Nichols By: /s/ Robert C. Ford
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Dr. Francine Nichols Robert C. Ford
Title: President Title: President
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Date: 10/14/89 Date: 10/18/89
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ATTACHMENT
Amendment to the Agreement Between ASPO/Lamaze and Medical Communications
Corporation.
It is agreed that the following addition to paragraph 21 is to be considered a
part of the attached contract:
In the event that at the end of calendar year 1994, there has been no
bona fide third-party offer, and that no breach of contract exists, and
assuming that both parties desire to continue their participation in
Lamaze Family Productions as herein described, then both parties agree
to negotiate a new contract in good faith.
This amendment to the contact signed and agreed to by:
For ASPO/Lamaze For Medical Communications
Corporation
By: /s/ Francine Nichols By: /s/ Robert C. Ford
--------------------------------- --------------------------------
Dr. Francine Nichols Robert C. Ford
Title: President Title: President
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Date: 10/20/89 Date: 10/18/89
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