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EXHIBIT 6.10
AUTHORIZED RESELLER AGREEMENT
This Agreement (the "Agreement") is made and entered into this 31st day
of August, 1999 ("Effective Date"), by and between Xxxxx.xxx, a Delaware
corporation with its principal place of business at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx, 00000 ("QORUS"), and CyberGate, with its principal
place of business at 000 XX 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, Xxxxxxx
00000 ("CYBERGATE"). QORUS and CYBERGATE may be referred to hereafter
individually as a "Party" or collectively as the "Parties."
RECITALS
A. QORUS is in the business of providing certain electronic
messaging services;
B. CYBERGATE desires to market and resell those services
specified in the attached Exhibit A ("Services") to
CYBERGATE's Customers (as defined below); and
C. QORUS is willing to provide Services to CYBERGATE's Customers
in accordance with the terms of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties hereby agree as follows:
1. Definitions.
1.1. "Affiliate" of a Party shall mean a corporation, partnership,
joint venture or other entity directly or indirectly, through
one or more intermediaries, controlling, controlled by or
under common control with such Party.
1.2. "CYBERGATE Authorized Reseller" shall mean any current or
future entities who are authorized by CYBERGATE to resell
QORUS services.
1.3. "CYBERGATE Customers" shall mean any person, entity, or
CYBERGATE Authorized Reseller that is a customer of CYBERGATE,
or a customer of a CYBERGATE Authorized Reseller.
1.4. "Documentation" shall mean any user guides, manuals, operator
guides, installation guides, technical reference guides and
other similar reference materials generally made available by
QORUS to its customers to facilitate use of the Services,
which QORUS shall offer to CYBERGATE.
1.5. "Services" shall be defined as used in Exhibit A.
1.6. "Operating Plan" shall be defined in Exhibit B.
1.7. "Contacts" shall be defined in Exhibit C.
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2. Agreement to Provide Services/Grant of Rights
2.1. QORUS shall provide the Services to CYBERGATE Customers in
accordance with the pricing set forth in the attached Exhibit
A and the Operating Plan set forth in the attached Exhibit B.
2.2. QORUS hereby grants to CYBERGATE a non-exclusive,
non-transferable right to market, promote and resell the
Services to current and prospective CYBERGATE Customers
provided, however, that CYBERGATE may market, promote and
resell the Services through CYBERGATE Authorized Resellers,
provided that CYBERGATE shall be responsible for such third
parties' observance of the terms and conditions of this
Agreement.
2.3. QORUS hereby grants to CYBERGATE and CYBERGATE accepts the
right to re-brand the Services and Documentation for use in
accordance with the rights granted herein, the Documentation,
and branding guidelines as mutually agreed upon by the
Parties; provided, however, that (a): any such re-branding
will be subject to QORUS' written approval, may include a
requirement that a notice be included identifying the Service
as "Powered by QORUS" or such other name and/or copyright
notices as may be designated by QORUS, and in a predetermined
style, color and size no less than 125x50 pixels, and (b): any
branding with trademarks other than CYBERGATE's trademarks
will be subject to prior approval of QORUS, which may not be
unreasonably withheld by QORUS's.
2.4. QORUS hereby grants to CYBERGATE the right to utilize QORUS's
trade name and any trademarks and service marks (the
"Trademarks") in CYBERGATES's advertising and promotional
materials used for the sale of the Services provided that if
CYBERGATE utilizes the QORUS trade name and any trade marks it
shall use QORUS's current style, color and minimum size of
125x50 pixels. After distribution, mailing or posting on the
web, CYBERGATE will then submit such advertising and
promotional materials to QORUS for review. CYBERGATE has paid
no consideration for the use of the Trademarks, and nothing
contained in this Agreement shall give CYBERGATE any right,
title or interest in the Trademarks. CYBERGATE agrees that it
will not at any time during or after this Agreement assert or
claim any interest in or do anything which may adversely
affect the validity or enforceability of any Trademark. In
order to comply with QORUS's quality control standards,
CYBERGATE shall: (i) use the Trademarks in compliance with all
relevant laws and regulations; (ii) accord QORUS the right to
inspect all CYBERGATE Products, Advertising and Promotional
material used in conjunction with this service in order to
confirm that CYBERGATE's use of such Trademarks is acceptable
to QORUS; and (iii) not modify any of the Trademarks in any
way and not use any of the Trademarks on or in connection with
any goods or services other than the Services.
2.5. The grants made herein by QORUS to CYBERGATE are
non-exclusive. QORUS reserves the right in its discretion to
use other authorized resellers of the Services covered by this
Agreement within or outside of the Territory without
obligation or liability of any kind to CYBERGATE. QORUS also
reserves the right to sell the Services or similar products
and services to any person or entity not currently obtaining
the Services through CYBERGATE, using its own personnel or
third parties, without obligation or liability of any kind to
CYBERGATE; provided, however, QORUS shall not, during the term
of this agreement, knowingly contact
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current CYBERGATE Customers for any purpose (other than
through general advertising programs) except in the
performance of its obligations hereunder.
2.6. CYBERGATE acknowledges that nothing in this Agreement grants
CYBERGATE any ownership interest in the Services and that upon
termination of this Agreement, CYBERGATE shall make no claims
of such ownership or of any further interest in the Services.
2.7. No rights or licenses with respect to the Services or the
Trademarks (as defined below) are granted or deemed granted
hereunder or in connection herewith, other than those rights
expressly granted in this Agreement.
3. Additional Obligations of QORUS.
3.1. QORUS shall, at its own expense, provide software and
equipment necessary to provide remote access communications
(the "Equipment"). Such Equipment will be the sole property of
QORUS and QORUS will be solely responsible for its upkeep and
maintenance.
3.2. QORUS grants to CYBERGATE the right to reproduce the
Documentation solely for the purpose of distributing it to
CYBERGATE's customers using the Services. QORUS shall provide
CYBERGATE with a copy of the Documentation within a timely
period after execution of this Agreement, and shall thereafter
provide CYBERGATE on a timely basis any updates or revisions
thereto, for re-branding, reproduction and distribution by
CYBERGATE to CYBERGATE Customers in accordance with this
Agreement and in connection with the marketing and sale of the
Services. CYBERGATE shall maintain all copyright notices of
QORUS on the documentation.
3.3. QORUS shall provide CYBERGATE and CYBERGATE Authorized
Resellers with training as set forth in the Operating Plan.
3.4. QORUS shall provide the maintenance and support services for
CYBERGATE , as set forth in the Operating Plan, at no
additional cost to CYBERGATE.
3.5. QORUS shall notify CYBERGATE of new products and services not
described on Exhibit A and material enhancements which
substantially alter the functionality of the Services and are
available from QORUS after the Effective Date (collectively,
"New Services"). If QORUS and CYBERGATE agree that any such
New Services will be offered to CYBERGATE Customers, such New
Services will be added to Exhibit A.
4. Obligations of CYBERGATE.
4.1. CYBERGATE shall market and sell the Services to CYBERGATE
Customers and fulfill its obligations as described on Exhibit
B. CYBERGATE shall develop at its own expense, all marketing,
sales, and promotional materials used in connection with
CYBERGATE's marketing and sale of the Services. CYBERGATE
shall provide to CYBERGATE customers, at its expense, the
Documentation.
4.2. CYBERGATE shall accurately represent the Services to CYBERGATE
Customers or prospective CYBERGATE Customers and prospective
CYBERGATE Authorized Resellers
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and shall make no claims, representations or warranties on
behalf of QORUS in connection with the Services other than as
set forth in QORUS's Documentation, the forms or orders
provided by QORUS, or as otherwise expressly authorized by
QORUS in writing. CYBERGATE shall provide the Services to
CYBERGATE customers subject to the warranty limitations and
liability limitations set forth in Sections 10 and 11 below
and shall assure that all CYBERGATE Customers receive and
accept such warranty limitations and liability limitations.
4.3. CYBERGATE shall provide the first and second line maintenance
and support services for CYBERGATE Customers, as set forth in
the Operating Plan.
5. Customer Registration and Payment.
5.1. CYBERGATE Customers shall register for the Services as
described in Exhibit B.
5.2. QORUS's description and pricing of Services to CYBERGATE is
set forth in Exhibit A. Pricing to CYBERGATE Customers shall
be determined by CYBERGATE in its sole discretion. QORUS may
not increase the pricing of Services to CYBERGATE during the
term of this Agreement without CYBERGATE's prior written
consent. In the event that telecommunications expenses
incurred by QORUS increase, QORUS shall inform CYBERGATE of
said increase. CYBERGATE shall have the option of accepting or
rejecting said increase, but in the event of a rejection,
QORUS will have the option of terminating this Agreement.
5.3. QORUS shall be responsible for providing a single,
standardized daily electronic billing feed (format to be
determined and agreed upon between the Parties) to CYBERGATE
via electronic file transfer, which includes all service usage
and billing information, by CYBERGATE Customer, for the
previous month. Payment terms will be Net 30 days. Such
payments will be made by CYBERGATE to QORUS regardless of
CYBERGATE's ability to collect its charges from CYBERGATE
Customers.
5.4. CYBERGATE shall be responsible for and pay all taxes
applicable to amounts billed to CYBERGATE Customers under this
Agreement (excluding taxes based on QORUS's income, net worth
or capital).
5.5. All amounts due and owing to QORUS hereunder but not paid
by CYBERGATE on the due date thereof shall bear interest at
the rate of the lesser of: (i) one and one-half per cent (1
1/2%) per month; and (ii) the maximum lawful interest rate
permitted under applicable law. Such interest shall accrue on
the balance of unpaid amounts from time to time outstanding
from the date on which portions of such amounts become due and
owing until payment thereof in full.
6. Term and Termination.
6.1. The initial term of this Agreement shall commence as of the
Effective Date and will continue for a period of one (1) year
(the "Initial Term"). At the conclusion of the Initial Term
and any subsequent term, this Agreement shall automatically be
extended for an additional one (1) year term unless either
Party provides the other Party with written notice of its
intention not to renew this Agreement at least ninety (90)
days prior to the expiration of the then current term.
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6.2. This Agreement may also be terminated as follows:
a. At any time upon the mutual written agreement of the
Parties; or
b. By either Party immediately if the other Party fails
to cure any material breach within thirty days
following receipt of written notice thereof; or
c. By either Party immediately upon giving written
notice to the other Party if the other Party has a
receiver, administrator, administrative receiver or
liquidator appointed; if the other Party passes a
resolution liquidating the Party, if any court of
competent jurisdiction issues an order to that
effect, or if the other Party enters into any
arrangement with its creditors, becomes insolvent or
ceases to carry on business;
6.3. Upon termination or expiration of this Agreement, the Parties
agree to cooperate in good faith to effect an orderly wind-up
of the relationship created under this Agreement. QORUS shall
complete all orders, which it has accepted and CYBERGATE shall
remain obligated to pay all amounts owing to QORUS hereunder.
Termination of this Agreement shall not limit either party
from pursuing any other remedies otherwise available to it.
6.4. In the event of a termination of this Agreement pursuant to
its terms or upon expiration of this Agreement, QORUS shall
not have any obligation to CYBERGATE, or to any employee of
CYBERGATE or - CYBERGATE Authorized Reseller, for compensation
or for damages of any kind, whether on account of the loss by
CYBERGATE or such employee or CYBERGATE Authorized Reseller of
present or prospective sales, investments, compensation or
goodwill. CYBERGATE hereby indemnifies and holds QORUS
harmless from and against (i) any and all claims, costs,
damages and liabilities whatsoever asserted by any employee or
independent contractor of CYBERGATE; (ii) any claim of any
CYBERGATE Authorized Reseller under any applicable
termination, labor, social security or other similar laws or
regulations, except to the extent such claim arises out of the
breach by QORUS of this agreement or due to the negligence of
Qorus.
7. Confidentiality.
7.1. The Parties agree that the following provisions shall govern
the anticipated mutual disclosure and use of confidential and
proprietary information under this Agreement.
As used in this Agreement, the term "Proprietary
Information" shall mean information that is
transmitted or otherwise provided by or on behalf of
either party to the other Party related to this
Agreement and the services to be performed hereunder,
and that may be reasonably understood from legends,
the circumstances of disclosure or the nature of the
information itself, to be proprietary and/or
confidential to the disclosing party. Proprietary
Information may be disclosed in written or other
tangible form (including on magnetic media) or by
oral, visual or other means. Proprietary Information
shall include, without limitation, a Party's business
plan, customer names and information relating to the
customers, information regarding other material third
party relationships which a Party may obtain in the
course of performance under this Agreement, and
scientific or technical data, design or process.
Notwithstanding the foregoing, Proprietary
Information shall not include any information that:
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(i) was publicly known at the time of the
discloser's communication thereof to the
recipient;
(ii) becomes publicly known through no fault of
recipient subsequent to the time of the
discloser's communication thereof to the
recipient;
(iii) was in recipient's possession free of any
obligation of confidence at the time of the
discloser's communication thereof to the
recipient;
(iv) is developed by the recipient independently
of and without reference to any of the
discloser's Proprietary Information or other
information that discloser disclosed in
confidence to any third party;
(v) is rightfully obtained by recipient from
third parties which made such disclosure
without restriction; or
(vi) is identified in writing by the discloser as
no longer proprietary or confidential.
7.2. In the event the recipient is required by law, regulation or
court order to disclose any of the discloser's Proprietary
Information, the recipient shall promptly notify the discloser
in writing prior to making any such disclosure in order to
enable the discloser to seek a protective order or other
appropriate remedy from the proper authority. The recipient
agrees to cooperate with the discloser in seeking such order
or other remedy. The recipient further agrees that if the
discloser is not successful in precluding the requesting legal
body from requiring the disclosure of the Proprietary
Information, it will furnish only that portion of the
Proprietary Information which is legally required and will
exercise all reasonable efforts to obtain reliable assurances
that confidential treatment will be accorded the Proprietary
Information.
7.3. The Parties acknowledge that their respective Proprietary
Information, as well as their respective intellectual property
rights pursuant to this Agreement, are unique and valuable,
and that breach by either Party of the obligations of this
Agreement regarding such Proprietary Information and
intellectual property rights will result in irreparable injury
to the affected Party for which monetary damages alone would
not be an adequate remedy. Therefore, the Parties agree that
in the event of a breach or threatened breach of such
provisions, the affected Party shall be entitled to specific
performance and injunctive or other equitable relief as a
remedy for any such beach or anticipated breach without the
necessity of posting a bond. Any such relief shall be in
addition to and not in lieu of any appropriate relief in the
way of monetary damages.
7.4. Each Party receiving Proprietary Information shall, as to any
Proprietary Information that may be disclosed to it by the
other Party hereunder: (i) use the Proprietary Information
only in the performance of this Agreement and (ii) protect
such Proprietary Information from disclosure to others, using
the same degree of care used to protect its own confidential
or proprietary information of like importance, but in any case
using no less than a reasonable degree of care. The recipient
may disclose Proprietary Information received hereunder to its
Affiliates and its employees and subcontractors, who have a
need to know, for the purpose of this Agreement, and who are
bound to protect the received Proprietary Information from
unauthorized use and disclosure provided that in any event the
recipient shall remain liable for breaches by any such
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third parties of the provisions of this Section. Proprietary
Information shall not otherwise be disclosed to any third
party without the prior written consent of the discloser.
8. Compliance with Regulations.
QORUS shall comply, in all material respects, with all applicable
statutes, laws, regulations, tariffs and orders adopted or issued by
any governmental authority governing the provisioning of the Services
by QORUS to CYBERGATE Customers including, but not limited to, all
relevant export and re-export controls under the U.S. Export
Administration Regulations and/or similar regulations of the U.S. or
any other country. CYBERGATE shall cooperate with QORUS as reasonably
necessary to permit QORUS to comply with such laws and administrative
regulations.
9. Representations and Warranties.
9.1. QORUS represents and warrants to CYBERGATE, its Authorized
Resellers (and no other person or entity) that:
a. the Services will perform substantially as described
in the Documentation. CYBERGATE's exclusive remedy
for breach of this warranty is QORUS re-performing
the Services for no additional charge;
b. it has not incorporated in the Services, and, to
QORUS's knowledge, the Services do not contain any
"time bomb", "worms", viruses, locks, drop dead
devices or other routines or components to permit
unauthorized access, disable the software or data,
harm the system on which the software is run or
performance and other actions which would impair the
value or operation of the Services;
c. to QORUS's knowledge, the Services do not infringe
upon or violate any patent, copyright, trademark, or
other intellectual property or proprietary right of
any third party and do not constitute a
misappropriation of trade secrets of any third party.
9.2. Year 2000 Compliance. QORUS represents and warrants to
CYBERGATE, its Authorized Resellers (and no other person or
entity) that the software which it has created or owns and
uses to deliver the Services CYBERGATE, will not be adversely
affected by the occurrence or use of dates before, on, or
after January 1, 2000 A.D., including dates and leap years
between the twentieth and twenty-first centuries ("Millennial
Dates"). QORUS additionally represents and warrants that it
has or will make commercially reasonable efforts to obtain
from third party vendors providing hardware or software used
by it in the delivery of the Services or otherwise satisfy
itself that such hardware or software will not be adversely
affected by the occurrence or use of the Millennial Dates. In
all cases, the parties agree that Year 2000 compliance of
Services will be dependent upon Year 2000 compliance of
CYBERGATE Customers' email systems and other software and
hardware.
10. Disclaimer on Warranties; Limitation of Liability.
10.1. EXCEPT AS SPECIFICALLY MADE IN THIS AGREEMENT, QORUS MAKES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY
WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A
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PARTICULAR PURPOSE AS TO THE PRODUCTS AND SERVICES PROVIDED
UNDER THIS AGREEMENT.
10.2. EXCEPT AS IS PROVIDED IN ARTICLE 11 BELOW, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY, OR ANY AFFILIATE THEREOF BE
LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, STATUTORY OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS OR
OTHER LOST ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR BREACH HEREOF, WHETHER SUCH CLAIMS ARE BASED
ON BREACH OF CONTRACT, STRICT LIABILITY, TORT, OR ANY OTHER
LEGAL THEORY AND EVEN IF THE OTHER PARTY KNEW, SHOULD HAVE
KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PARTIES HAVE AGREED THAT THE LIMITATION SPECIFIED IN THIS
SECTION WILL SURVIVE AND APPLY IF ANY LIMITED REMEDY SPECIFIED
IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE.
10.3. Limited Damages. IN NO EVENT (EXCEPT AS IS PROVIDED IN ARTICLE
11.2 BELOW) SHALL QORUS's LIABILITY TO CYBERGATE AND
CYBERGATE's CUSTOMERS IN CONNECTION WITH THIS AGREEMENT EXCEED
IN THE AGGREGATE THE AMOUNTS PAID TO QORUS BY CYBERGATE UNDER
THIS AGREEMENT DURING THE PRIOR (12) TWELVE MONTHS. IN NO
EVENT (EXCEPT AS IS PROVIDED IN ARTICLE 11.2 BELOW) SHALL
QORUS's LIABILITY TO ANY CYBERGATE CUSTOMER IN CONNECTION WITH
THIS AGREEMENT EXCEED AMOUNTS PAID BY SUCH CUSTOMER FOR
SERVICERS PROVIDED UNDER THIS AGREEMENT DURING THE PRIOR
TWELVE (12) MONTHS. THIS LIMITATION APPLIES TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION ANY
ACTION FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO
EVENT SHALL QORUS's LIABILITY TO EITHER CYBERGATE OR ANY
CYBERGATE CUSTOMER FOR ANY FAILURE OF THE SYSTEM/SERVICES TO
BE AVAILABLE DURING ANY MONTH EXCEED THE AMOUNT PAID BY SUCH
CUSTOMER FOR THE SERVICES FOR SUCH MONTH
11. Indemnification
11.1. Each Party agrees to indemnify the other and its directors,
officers, agents and employees harmless from and against any
and all losses, liabilities, judgments, damages, costs and
expense, including reasonable attorneys' fees and court costs,
resulting from or arising out of any charges, claims, suits,
actions, causes of action, of any kind and description,
brought by any third party as a result of or in connection
with a breach of or default by a Party of any provision of, or
representations or warranties set forth in this Agreement,
except to the extent any of the foregoing is caused by the
negligence or willful misconduct of the other party.
11.2 QORUS agrees to indemnify CYBERGATE, its directors, officers,
agents and employees harmless from and against any and all
losses, liabilities, judgments, damages, costs and expense,
including reasonable attorneys' fees and court costs,
resulting from or arising out of any charges, claims, suits,
actions, causes of action, of any kind and description,
brought by any third party as a result of or in connection
with any claim that the use or sale of the Services by
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CYBERGATE or any CYBERGATE Customer infringes on the
intellectual property rights of any third party or constitutes
a misappropriation of a trade secret of any third party;
provided, however, that:
(a) In the event that any Service is held in a suit or
proceeding to infringe any intellectual property rights of a
third party and the use or reselling of such Service is
enjoined, or QORUS reasonably believes that it is likely to be
found to infringe or likely to be enjoined, then QORUS shall,
at its sole cost and expense, either (i) procure for CYBERGATE
the right to continue using and reselling such Service, or
(ii) modify such Service so that it becomes non-infringing.
(b) QORUS shall have no obligation for any claim of
infringement arising from: (i) any combination of Services
with products or services not supplied by QORUS, where such
infringement would not have occurred but for such combination;
(ii) the adaptation or modification of Services not performed
by QORUS, where such infringement would not have occurred but
for such adaptation or modification; (iii) the use of Services
in an application for which it was not designed or intended,
where such infringement would not have occurred but for such
use; or (iv) a claim based on intellectual property rights
claimed by CYBERGATE or any of its Affiliates, nor shall QORUS
have any obligation or liability where such claim is based
upon content transmitted through the Services.
(c) This Section 11.1 states CYBERGATE's sole and exclusive
remedy in the event that a Service infringes on the
intellectual property right of any third party.
11.3. In the event a claim which is covered by the terms of this
Section is made by a third party against either CYBERGATE or
QORUS, the party receiving the claim and entitled to
indemnification hereunder (the "Indemnified Party") shall
promptly notify the other party (the "Indemnifying Party") of
the claim and the indemnification obligation arising
thereunder. The Indemnifying Party shall be accorded control
of the defense and of all negotiations for settlement or
compromise of such claim and the Indemnified Party shall
cooperate with the Indemnifying Party in the defense and
settlement of such claim. The Indemnified Party may at its own
expense, be represented in such defense. The Indemnifying
Party shall promptly adjust, settle, defend or otherwise
dispose of the claim at its sole cost and expense. The
Indemnifying Party may not agree to any settlement, which
imposes liability on the Indemnified Party without the prior
written consent of the Indemnified Party.
11.4 In the event a claim is based partially on an indemnified
claim described in Section 11.1 above and partially on a
non-indemnified claim, or is based partially on a claim
indemnified by QORUS pursuant to Section 11.1 above and
partially on a claim indemnified by CYBERGATE pursuant to
Section 11.1 above, any payments and reasonable attorney fees
incurred in connection with such claims are to be apportioned
between the Parties in accordance with the degree of cause
attributable to each Party.
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12. Governing Law.
The laws of the State of Florida shall govern this Agreement and the
parties consent to the exclusive jurisdiction and venue in the state
and federal courts sitting Broward County, Florida, USA. Each party
will be responsible for its own attorneys' fees.
13. Publicity.
No news, media or other informational releases public announcements,
public disclosures, advertising or marketing materials concerning or
referencing any part of the terms and conditions of this Agreement,
including exhibits hereto, either Party's performance hereunder, or any
other aspect of the Agreement shall be made or distributed without the
express prior written approval of the other Party.
14. Force Majeure.
Neither Party will be liable for any failure to perform (other than
payment obligations) due to unforeseen circumstances or causes beyond
its reasonable control, including, but not limited to, acts of God,
war, riot, embargoes, acts or civil or military authorities, fire,
flood, accident, shortages of fuel, raw materials or equipment,
provided that the delayed Party has taken reasonable measure to notify
the other in writing of the delay.
15. Miscellaneous.
15.1. Non Waiver. The failure of either Party to insist upon the
strict performance of any terms, covenants and conditions of
this Agreement at any time, or in any one or more instances,
or its failure to take advantage of any of its rights
hereunder, or any course of conduct or dealing, shall not be
construed as a waiver or relinquishment of any such rights or
conditions at any future time and shall in no way affect the
continuance in full force and effect of all the provisions of
this Agreement.
15.2. Relationship of Parties/Independent Contractors. Nothing
contained in this Agreement shall be deemed or construed as
creating a joint venture or partnership between QORUS and
CYBERGATE. Neither Party is by virtue of this Agreement
authorized as an agent, employee or legal representative of
the other. Neither Party shall have the power to control the
activities and operations of the other and their status is,
and at all times will continue to be, that of independent
contractors. Neither Party shall have any authority to bind or
commit the other. Except as expressly agreed in writing each
Party shall bear its own costs and expenses incurred under or
in conjunction with performance of this Agreement.
15.3. Headings. Headings used in this Agreement are for convenience
and reference only and shall not be construed as altering the
meaning of this Agreement or any of its parts.
15.4. Survival. The Parties agree that Section 6.3, 6.4, and
Articles 7, 10, 11, 12, 13, 14 and 15 shall survive the
expiration or any earlier termination of this Agreement.
15.5. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, the remaining terms shall
not be affected. The Agreement shall be interpreted as if the
illegal, invalid or unenforceable provision had not been
included in it, and the invalid or unenforceable provision
shall be replaced by a mutually acceptable provision which,
being valid and enforceable, comes closes to the intention of
the Parties underlying the invalid or unenforceable provision.
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15.6. Notices. All notices, request, demands, or communications
required or permitted hereunder shall be in writing, delivered
personally, by registered mail with return receipt, by
overnight delivery service, by electronic mail (with confirmed
receipt), or facsimile (with confirmed receipt), at the
respective addresses set forth below (or at such other
addresses as shall be given in writing by either Party to the
other). All notices, requests, demands or communications shall
be deemed effective upon receipt for personal delivery, on the
business day following the date of sending by electronic mail,
facsimile or overnight delivery service, or three days after
mailing.
QORUS: Chief Financial Officer
XXXXX.XXX
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax (000) 000-0000
CYBERGATE: COO, Xxxx Xxxxxxxxxx
CYBERGATE
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, XX 00000
Fax (000) 000-0000
15.7. Assignment. This Agreement shall be binding on and inure to
the benefit of the Parties hereto and their respective
successors and assigns. Neither Party may assign this
Agreement without the prior express written consent of the
other Party, which consent shall not be unreasonably withheld
or delayed; provided, however, either Party, without the
consent of the other, assign its rights and obligations
hereunder to an Affiliate, or to a successor in interest or to
a purchaser of all or substantially all of its assets or of
the assets of that portion of its business as to which this
Agreement pertains. Any prohibited assignment shall be null
and void.
15.8. Entire Agreement. This Agreement, including the Exhibits
attached hereto, constitutes the entire understanding of the
Parties, and supersedes all prior or contemporaneous written
and oral agreements, representations or negotiations with
respect to the subject matter hereof. This Agreement may not
be modified or amended except in writing signed by both
Parties.
15.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
CYBERGATE XXXXX.XXX
Signature: Signature:
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Esq. Name: Xxxxxxx X. Xxxxxx
Date: August 30, 1999 Date: August ____, 1999
Title: Chief Operating Officer Title: President
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EXHIBIT A
SERVICES AND PRICING
SERVICE DESCRIPTION
o GENERAL:
- 20MB allocated disk space for message storage
- Personal email address
- Personal direct DID and 800 (or 888/877) phone number for voice and
fax deposit and retrieval
o FAX CAPABILITIES:
- Fax to any fax number from web interface, Internet email client or
phone (retrieve existing fax from inbox via phone)
- Receive notice of incoming fax via pager or cell phone
- Send or forward fax to any fax number from telephone or browser
interface
- View faxes similarly to viewing e-mail
- Broadcast fax capabilities
- Forward fax to e-mail addresses
o E-MAIL CAPABILITIES:
- Send to and receive from all standard e-mail systems
- Send to multiple e-mail addresses
- Attach files to e-mail messages
- Send to any combination of e-mail, faxes, pagers
- Listen to e-mail on telephone in same fashion as listening to voice
mail
- Use QORUS features with existing POP3 e-mail clients
- Send to any fax number
- Send to multiple fax numbers
- Notification of e-mail arrival via pager or cell phone
- Consolidation of multiple email addresses into QORUS account - color
coded by address
o VOICE MAIL CAPABILITIES:
- Leave voice mail in QORUS via telephone
- Retrieve voice mail from QORUS telephone access
- Retrieve voice mail from computer with multimedia PC
- Notification by fax if a voice mail is received
- Send, reply, or forward voice mail to e-mail using the telephone
interface
- Notification by page or cell phone if a voice mail is received
o PAGING CAPABILITIES
- Page from telephone interface with address book option
- Send pages from browser interface with address book option
- Supports multiple paging providers: numeric, alphanumeric and pager
enabled cellular phones
o OTHER SERVICES
- Remote access to mailbox using the Internet or touch-tone phone
- Platform/operating system independent
- Full service e-mail/phone/fax/pager address book accessible from both
the Internet and the telephone interfaces
- Full scheduling features which allow user to create a unique set of
instructions for QORUS to handle, forward or hold incoming and
outgoing messages
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- Message transmission events can be pre-set based on any combination
of:
- Type of message(e-mail, fax, voice, page)
- Start and end date and/or start and end time
- Day of week
- Filter an incoming message by email address
- Address message to any type or individual
PRICING
QORUS provides services on a flat monthly fee basis. QORUS will xxxx CYBERGATE
USD $8.00 per month/per subscriber. QORUS' suggested standard retail price for
standard full service: US$16/mo
ADDITIONAL PRICING:
Pricing for additional features such as additional allocated disk space in 5MB
increments beyond 20MB will be billed to CYBERGATE at $.75 per 5MB increment per
month per subscriber.
Telco revenues for fax and pages outside of local California DID area code and
any 800/888/877-toll usage by subscribers, will be billed to CYBERGATE at $.075
USD per minute billed at 6 second increments.
Private labeling of the system to reflect CYBERGATE logos/brand is usually a
one-time fee of US $10,000.00 but waived for CYBERGATE.
Any additional consulting, programming and/or development (excluding repair to
the existing Services) will be billed at normal QORUS rates of US $110.00 per
hour. Any out of pocket expenses, including on-site visits, will be paid for by
CYBERGATE. Qorus must obtain prior written approval before commencing activities
for which CYBERGATE will incur the types of expenses described in this
paragraph.
START-UP PROGRAM:
Upon presentation of satisfactory incentive plans to accelerate market
penetration, QORUS will participate with CYBERGATE in developing and
implementing appropriate start-up programs. CYBERGATE and QORUS will each
provide $25,000.00 USD for marketing funds to be used in driving take-up of the
service. These funds will be used in programs jointly developed by QORUS and
CYBERGATE.
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EXHIBIT B
OPERATING PLAN
MARKETING AND SALES
CYBERGATE will make reasonable efforts to identify target customers, create
appropriate collateral, advertising and other specific sales efforts to secure
commitments from CYBERGATE's customers to buy QORUS services. Such activities
will be directed toward prospective market segments, which are known to have a
clear need for QORUS services.
QORUS will help CYBERGATE secure customers through any or all of the following
means:
- Supply existing marketing materials to CYBERGATE for distribution or
original work for incorporation into CYBERGATE -developed materials.
- Periodic visits to CYBERGATE by QORUS personnel to assist with presentation
and explanation of QORUS services.
- Promotional programs as warranted (further discussion required)
ACCOUNT CREATION/CLOSURE
CYBERGATE customers will sign-up directly with CYBERGATE by calling a toll-free
number or through a CYBERGATE-branded registration web page. In either case, the
customer may supply a pre-assigned reference number identifying them as a
CYBERGATE customer and the appropriate account configuration.
The customer will be assigned appropriate telephone access numbers and email id.
The account will be available for usage at CYBERGATE's discretion within a
reasonable amount of time.
QORUS will work with CYBERGATE in providing an electronic means to interface
with CYBERGATE's existing account creation process. This interface detail will
be outlined in further discussion between the Parties.
The electronic means will allow CYBERGATE to disable or temporarily disable the
account for non-payment.
BILLING
QORUS will xxxx CYBERGATE at the end of each day electronically for those users
whose 30-day signup anniversary falls on that day. This includes the flat
monthly fee of $8.00 USD and for associated additional charges (additional
storage, minutes of toll usage, long distance faxes, etc.)
QORUS will provide to CYBERGATE an electronic means to allow CYBERGATE to xxxx
their customers for additional storage, minutes of toll usage, long distance
faxes, etc. The rate table will contain $.10 (or whatever pricing CYBERGATE
sets) per minute for these charges and additional storage will be billed $1.00
(or whatever pricing CYBERGATE sets) per month for each additional 5MB.
CyberGate will be provided an electronic means of imposing credit limits on any
Customer.
CUSTOMER SUPPORT
CYBERGATE will supply the first and second line of support to its users. This
includes telephone and email-based questions and problems. QORUS will provide
third tier support that includes system failures only.
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TRAINING
A. QORUS will provide customer service/technical support training to CYBERGATE
service support technicians at the CYBERGATE facility in Deerfield Beach,
FL in order for CYBERGATE to be able to provide first and second tier
support to CYBERGATE Customers, and to document escalation procedures.
Estimated length of this training - 2 days. CYBERGATE will pay out of
pocket expenses but not for training.
SERVICE ENHANCEMENTS
QORUS will, from time to time, add features to the services. These additional
features will be made available to CYBERGATE and its customers as well. If QORUS
adds significant functionality, which results in a retail price list change,
CYBERGATE will be given the option to offer these services at a revised pricing
schedule to reflect such new services.
PROJECT PLAN ESTIMATES
1. Contract execution - Aug. 31
2. Begin working on development and implementation of project plan to include
interface to billing and provisioning APIs, branding, minor changes based
on requests - Aug 30 - 4 to 6 weeks completion
3. Provisioning of 800#s and circuits at QORUS selected site - Begin Aug 30 -
4 to 6 weeks to completion
4. Testing of system for acceptance and any minor configuration updates -
appx. two weeks from the completion of number three
5. Full production launch between Oct 7 - 10, 1999
6. All marketing and advertising developed and implemented parallel to these
other projects
7. Aug. 30 -31- gather all CyberGate's requirements for branding and changes
to determine feasibility and timeframes.
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EXHIBIT C
Contacts
Contacts for Marketing Development
QORUS - Xxxx Xxxx, VP of Marketing, xxxxx@xxxxx.xxx
CYBERGATE - Xxx Xxxxxx Xx, VP of Marketing and Product Development
Contacts for Third Tier Support
QORUS - Xxxx Xxxxx - mobile phone number 000-000-0000
Authorized CYBERGATE personnel for access to QORUS support - Xxxxxxx Xxxxxxx,
VP, Engineering - others to be added
Contacts for Development and Customization
Branding, API support contact QORUS - Xxxx Xxxx, xxxxx@xxxxx.xxx
CYBERGATE - Xxxx Xxxxxxx, VP of IS, 954.429.8110
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