EXHIBIT 10.13
COHN & WOLFE
November 19, 1999
Mr. Tom McMurrain
CEO & Founder
GlobaleTutor.com
3340 Peachtree Road
Suite 1800
Atlanta, GA 30326
Dear Mr. McMurrain:
This letter constitutes the agreement between GlobaleTutor.com ("Client"), and
Cohn & Wolfe ("C&W"), regarding communications services provided to Client by
C&W.
1. SERVICES
a. PROFESSIONAL SERVICES. As requested by Client, C&W will provide
professional services, including but not limited to:
- counseling;
- developing public relations plans;
- preparing news releases, feature articles, public
- announcements and background information for
- distribution to communications media;
- representing the Client before legislative and regulatory
- organizations and other publics;
- writing and producing films, videotapes, flip charts, direct
- mail materials, and;
- staging and conducting meetings and other events.
b. SPECIAL SERVICES. In addition to the professional services specified
in Section 1(a) above, C&W may provide additional services for projects
and products as requested by Client. Before special services are
undertaken, Client and C&W will agree on how C&W will be compensated.
2. COMPENSATION
Client agrees to pay C&W for all costs incurred by C&W in providing
services requested by Client, as set forth in this section and
according to the billing procedures in Section 3.
a. MONTHLY BILLING CYCLE. C&W will base its invoices on a monthly
billing cycle.
b. TIME CHARGES. Services rendered by C&W employees for Client will
be applied at C&W's standard hourly rates in effect at the time in
which services are rendered.
c. OUT-OF-POCKET EXPENSES. Client will reimburse C&W without markup
for out-of-pocket expenses, including travel-related expenses and
the entertainment of editorial and other parties whom Client has
requested C&W to entertain.
If C&W uses services of an outside supplier in providing
production-related services to Client, Client will pay C&W the
cost of such services plus a 17.65 percent markup.
Production-related services are items such as mechanical and art
costs for printing, including typography and comprehensive
layouts, and audio visual production costs, including talent,
props, scenery, sound and lighting, rights, license fees and
producers' fees.
d. INTERNAL EXPENSES. Client agrees to pay C&W for internal expenses
incurred in servicing Client's account. Such expenses include, but
are not limited to, photocopies, long distance telephone, bulk
mailings, supplies, and faxes.
e. SUPPORT SERVICE EXPENSES. Support services rendered by C&W
employees for Client will be billed at the hourly rates in effect
during the Billing Month in which services are rendered. Such
services include, but are not limited to, word processing and
secretarial.
f. ADMINISTRATIVE CHARGE. Client will pay C&W three percent (3%) of
time charges incurred during the previous Billing Month to cover
certain administrative costs, such as local telephone and routine
postage, that are necessarily incurred in providing services to
Client.
3. BILLING PROCEDURES
a. PAYMENT OF MONTHLY CHARGES. For the services rendered under
Section 1(a) of this Agreement, on or about the beginning of each
month, C&W will send Client an invoice for the agreed upon monthly
charges.
b. MONTHLY RECONCILIATION. At or about the end of each month, C&W
will send Client a statement reconciling actual costs incurred
during the month with the charges paid by Client. If the payments
of monthly charges exceed actual costs, the statement will show a
credit due Client which Client may apply to reduce the next
monthly invoice.
If actual costs exceed the payments of monthly charges made by
Client, the statement will invoice Client for the amount due C&W
and Client will pay such amount on or before the due date
specified on the invoice.
c. PAYMENT DUE DATE. Client will pay C&W the amount of each invoice
on or before the due date specified on each invoice, unless
advance and/or significant payments to third parties are required.
In the case of advance and/or significant payments to third
parties, Client will pay C&W immediately upon presentation to
Client of any third party invoice.
d. LATE CHARGES. If Client fails to make any payment due under this
Agreement within thirty (30) days after it is due, Client will pay
interest on the amount due at the prime rate of interest charged
by The Chase Manhattan Bank, N.A., as of the day the payment is
due.
4. OWNERSHIP OF MATERIALS
All slogans and publicity materials submitted to Client by C&W while
this Agreement is in effect are as between C&W and Client, the Client's
property exclusively (subject to certain third party limited rights,
such as licenses), provided that the Client pays for the materials and,
before this Agreement is terminated, the Client either uses the
materials at least once or indicates in writing to C&W its intention to
use them. Otherwise, these materials are as between C&W and Client,
C&W's property exclusively.
5. INDEMNIFICATION
a. CLIENT'S RESPONSIBILITY. Client is responsible for the accuracy,
completeness and propriety of information that it provides to C&W
concerning Client's products, services, organization and industry.
Client is responsible for reviewing all publicity or other
materials prepared by C&W under this Agreement to confirm that all
representations, direct or implied, are supportable by objective
data then possessed by Client, and to confirm the accuracy and
legality of the descriptions and depictions of the products and
services of Client and its competitors.
Client will indemnify and hold C&W harmless from and against all
losses, damages, liabilities, claims, demands, lawsuits and
expenses, including reasonable attorney's fees, that C&W may incur
or be liable for arising out of or in connection with any of the
following:
- any publicity or other materials prepared or placed by C&W for
Client, or other service performed by C&W for Client;
- any alleged or actual defects in Client's products or services
(including, without limitation, any claim for bodily injury or
death); or
- allegations that Client's activities violate or infringe upon
the copyright, trademark, patent or other rights of any third
party, or that Client's activities induce, promote or encourage
the violation of or infringement upon the rights of any third
party.
Client's obligations under this section 5 include payment for all
time charges and expenses (including reasonable attorney's fees)
incurred by C&W in connection with any subpoena, discovery demand
or other directive having the force of law or governmental inquiry
the response to which Client does not object, served upon C&W or
any of its affiliates that relate to Client, its business or its
industry that arises out of any litigation, proceedings or
investigations involving Client.
The terms and conditions of this section shall survive the
termination of this Agreement.
b. COHN & WOLFE'S RESPONSIBILITIES. It will be the responsibility
of C&W to make certain that the necessary contracts or releases
have been obtained with or from those whose name and likenesses,
testimonials, scripts, musical compositions, or similar materials
or rights are used in the materials prepared under this Agreement,
and C&W agrees to indemnify the Client against any liabilities and
expense the Client may incur as a result of C&W's failure to
obtain the above-mentioned contracts or releases. It is expressly
understood that the foregoing indemnification by C&W shall not
apply in situations where the Client directly arranges or signs
such contracts or release or agreements with third parties nor
shall it apply where the
claim arises from matters as to which C&W has advised Client of
the risks involved and Client has agreed to accept those risks in
which cases Client shall indemnify C&W.
c. USE OF INFORMATION BY THIRD PARTIES. C&W has no control over
information once it has been issued to the media or another third
party. C&W cannot assure the use of any material by any medium
print or electronic, nor the accuracy of what any third party
publishes.
6. CONFIDENTIALITY
C&W, on behalf of itself and its employees, hereby covenants and agrees
that it:
a. shall exercise reasonable care and caution to keep confidential
any and all proprietary information concerning Client's business
and operation which becomes known to C&W by reason of the
performance of its services on Client's behalf, and which
information is clearly marked "confidential" or specifically
identified in writing as confidential. Proprietary information
includes, but is not limited to, corporate plans and strategies,
new product samples, specifications, formulations, and pricing
information;
b. shall not disclose any marked or identified information to any
person outside of the employ of C&W, unless to do so is required
in connection with the performance of its services, and in such
event C&W hereby agrees to advise said third parties of the
confidential nature of said material; and
c. shall return to Client all such information then in its possession
at the termination of C&W's services, except that C&W shall be
entitled to keep evidence of its work product.
It is further agreed that none of the above shall apply to the
following:
a. information that is in the public domain at the time of disclosure
to C&W or that enters the public domain through no fault of C&W,
or its employees;
b. information that is in the possession of C&W or its employees at
the time of disclosure to C&W;
c. information that C&W, or its employees, receive from a third party
under no obligation of confidentiality to Client; and
d. information required to be released by C&W in compliance with any
court order or other directive having the force of law.
7. OTHER RULES GOVERNING THIS AGREEMENT
a. DURATION. This Agreement begins as of December 1, 1999, and
continues until terminated by either Client or C&W. To terminate,
written notice must be given at least 60 days before the effective
date of termination. Client will pay for all charges incurred
under this Agreement up to the effective date of termination. On
that date, C&W will give or otherwise transfer to Client all
property in C&W's possession that belongs to Client, as provided
by Section 4, and all contracts for materials and services entered
into by C&W for Client.
b. AGENT/CLIENT RELATIONSHIP. In purchasing materials or services on
Client's behalf, C&W acts as Client's agent, and may state this
relationship in contracts and orders.
c. JURISDICTION. This Agreement is governed by the laws of the
State of New York and will be construed accordingly.
d. HEADINGS. Headings in this Agreement are for reference only. In
case of a conflict between a heading and the content of a section,
the content controls the meaning.
e. ENTIRE AGREEMENT. This letter constitutes the entire agreement
with respect to the matters it contains. It can be modified or
amended only by a written document, which is enforceable only if
signed by the party against whom enforcement is sought.
C&W and Client indicate their acceptance of this Agreement by having their
respective duly authorized representatives sign in the spaces provided below.
Sincerely yours,
COHN & WOLFE
By: /s/ Kim Hardy Date: 11-19-99
Vice President, Business Manager
AGREED:
By: /s/ Thomas McMurrain Date: 11-29-99