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EXHIBIT 6.9
AUTHORIZED RESELLER AGREEMENT
This Agreement (the "Agreement") is made and entered into this 21st day
of September, 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 C2C Telecom, Inc., Delaware
corporation, with its principal place of business at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000. QORUS and C2C TELECOM 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. C2C TELECOM desires to market and resell those services
specified in the attached Exhibit A ("Services") to C2C
Telecom's Customers (as defined below); and
C. QORUS is willing to provide Services to C2C Telecom'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. "C2C TELECOM Authorized Reseller" shall mean any current or
future entities that are agreed to in writing by both QORUS
and C2C Telecom; such agreement shall not be unreasonably
withheld by either party.
1.3. "C2C Telecom Customers" shall mean any person, entity, or C2C
Telecom Authorized Reseller that is a customer of C2C Telecom,
or a customer of a C2C Telecom 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 C2C TELECOM.
1.5. "Services" shall be defined as used in Exhibit A.
1.6. "Operating Plan" shall be defined in Exhibit B.
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1.7. "Contacts" shall be defined in Exhibit C.
2. Agreement to Provide Services/Grant of Rights
2.1. QORUS shall provide the Services to C2C TELECOM 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 C2C TELECOM a non-exclusive,
non-transferable right to market, promote and resell the
Services to current and prospective C2C TELECOM Customers in
the United States (the "Territory") provided, however, that
C2C TELECOM may market, promote and resell the Services
through C2C TELECOM Authorized Resellers, provided that C2C
TELECOM shall be responsible for such third parties'
observance of the terms and conditions of this Agreement.
2.3. QORUS hereby grants to C2C TELECOM and C2C TELECOM 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
shall be subject to QORUS' written approval, may carry a
notice identifying the Service as "Powered by QORUS" or such
other name and/or copyright notices as may be designated by
QORUS, and in a style, color and reasonable size to be
designated by QORUS, and (b): any branding with trademarks
other than C2C TELECOM's trademarks may be subject to prior
approval of QORUS, which may be withheld in QORUS's absolute
discretion.
2.4. QORUS hereby grants to C2C TELECOM the right to utilize
QORUS's trade name and any trademarks and service marks (the
"Trademarks") in connection with C2C TELECOM's advertising and
promotional materials used for the sale of the Services
provided that if C2C TELECOM utilizes the QORUS trade name and
any trade marks it shall first submit such advertising and
promotional materials to QORUS for review and approval, not to
be unreasonably withheld. C2C TELECOM has paid no
consideration for the use of the Trademarks, and nothing
contained in this Agreement shall give C2C TELECOM any right,
title or interest in the Trademarks. C2C TELECOM 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, C2C
TELECOM shall: (i) use the Trademarks in compliance with all
relevant laws and regulations; (ii) accord QORUS the right to
inspect all C2C TELECOM Products, Advertising and Promotional
material used in conjunction with this service in order to
confirm that C2C TELECOM's use of such Trademarks is in
compliance with this Section; 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.
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2.5. The grants made herein by QORUS to C2C TELECOM 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 C2C TELECOM. QORUS also
reserves the right to sell the Services or similar products
and services to any person or entity not currently a customer
of any C2C TELECOM-provided service, using its own personnel
or third parties, without obligation or liability of any kind
to C2C TELECOM; provided, however, QORUS shall not, during the
term of this agreement, knowingly contact current C2C TELECOM
Customers for any purpose (other than through general
advertising programs) except in the performance of its
obligations hereunder.
2.6. C2C TELECOM acknowledges that nothing in this Agreement grants
C2C TELECOM any ownership interest in the Services and that
upon termination of this Agreement, C2C TELECOM 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 a proprietary suite
of 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 shall provide C2C TELECOM with a copy of the
Documentation within a timely period after execution of this
Agreement, and shall thereafter provide C2C TELECOM on a
timely basis any updates or revisions thereto, for
re-branding, reproduction and distribution by C2C TELECOM to
C2C TELECOM Customers in accordance with this Agreement and in
connection with the marketing and sale of the Services. C2C
TELECOM shall maintain all copyright notices of QORUS on the
documentation.
3.3. QORUS shall provide C2C TELECOM and C2C TELECOM Authorized
Resellers with training as set forth in the Operating Plan.
3.4. QORUS shall provide the maintenance and support services for
C2C TELECOM and C2C TELECOM Customers, as set forth in the
Operating Plan, at no additional cost to C2C TELECOM.
3.5. QORUS shall notify C2C TELECOM at least 60 days in advance 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
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Services"). If QORUS and C2C TELECOM agree that any such New
Services will be offered to C2C TELECOM Customers, such New
Services will be added to Exhibit A.
4. Obligations of C2C TELECOM.
4.1. C2C TELECOM shall use diligent commercial efforts to market
and sell the Services to C2C TELECOM Customers and other
prospective customers. C2C TELECOM shall not sell or market,
to its customers, services that are in direct competition to
the Services. If C2C TELECOM C2C intends to offer
complementary services in conjunction with similar service
offerings to QORUS Services, then QORUS has the first right of
refusal to offer such services within a reasonable time frame
to be not less than 90 days. C2C TELECOM shall develop at its
own expense, all marketing, sales, and promotional materials
used in connection with C2C TELECOM's marketing and sale of
the Services.
4.2. C2C TELECOM shall accurately represent the Services to C2C
TELECOM Customers or prospective C2C TELECOM Customers and
prospective C2C TELECOM Authorized Resellers and shall make no
claims, representations or warranties 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.
4.3. C2C TELECOM shall provide the first and second line
maintenance and support services for C2C TELECOM and C2C
TELECOM Customers, as set forth in the Operating Plan.
5. Customer Registration and Payment.
5.1. C2C TELECOM Customers shall register for the Services as
described in Exhibit B.
5.2. QORUS's description and pricing of Services to C2C TELECOM and
its suggested pricing for the Services to distributors and at
retail is set forth in Exhibit A, provided however that
pricing to C2C TELECOM Customers shall be determined by C2C
TELECOM in its sole discretion.
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 within 7 days
of the date hereof) to C2C TELECOM via electronic file
transfer, which includes all service usage and billing
information, by C2C TELECOM Customer, for the previous month.
Payment terms will be Net 30 days. Such payments will be made
by C2C TELECOM to QORUS regardless of C2C TELECOM's ability to
collect its charges from C2C TELECOM Customers.
5.4. C2C TELECOM, and its C2C TELECOM Authorized Reseller, shall be
responsible for and pay all taxes applicable to amounts billed
to C2C TELECOM 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
C2C TELECOM on the due date thereof shall bear interest at the
rate of the lesser of: (i) one and one-half per cent
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(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 three (3)
months prior to the expiration of the then current term.
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 fifteen 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 C2C TELECOM
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. After the termination of the contract, Qorus
will provide services to any accounts still open for a period
of six months, for which C2C Telecom, Inc. will pay Qorus a
flat fee of $8.00 (no more and no less) per month per account
for maintenance and service, until the account is closed or
transferred.
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 C2C TELECOM, or to any employee of
C2C TELECOM or C2C TELECOM Authorized Reseller, for
compensation or for damages of any kind, whether on account of
the loss by C2C TELECOM or such employee or C2C TELECOM
Authorized Reseller of present or prospective sales,
investments, compensation or goodwill. C2C TELECOM hereby
waives any rights, which may be granted to it under the laws
and regulations of the Territory or otherwise, which are not
granted to it by this Agreement. C2C TELECOM hereby
indemnifies and holds
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QORUS harmless from and against any and all claims, costs,
damages and liabilities whatsoever asserted by any employee,
agent or representative of C2C TELECOM or a C2C TELECOM
Authorized Reseller under any applicable termination, labor,
social security or other similar laws or regulations.
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 or 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:
(i) was publicly known at the time of
discloser's communication thereof to
recipient;
(ii) becomes publicly known through no fault of
recipient subsequent to the time of
discloser's communication thereof to
recipient;
(iii) was in recipient's possession free of any
obligation of confidence at the time of
discloser's communication thereof to
recipient;
(iv) is developed by recipient independently of
and without reference to any of 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 discloser as no
longer proprietary or confidential.
7.2. In the event recipient is required by law, regulation or court
order to disclose any of discloser's Proprietary Information,
recipient will promptly notify discloser in writing prior to
making any such disclosure in order to facilitate discloser
seeking a protective order or other appropriate
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remedy from the proper authority. Recipient agrees to
cooperate with discloser in seeking such order or other
remedy. Recipient further agrees that if 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 breach 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. 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
recipient shall remain liable for breaches by any such 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.
Each party shall comply, in all material respects, with all applicable
statutes, laws, regulations, tariffs and orders adopted or issued by
any governmental authority governing its performance under this
agreement 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. Each party
shall cooperate with the other 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 C2C TELECOM, its Authorized
Resellers and no other person or entity that:
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a. the Services will perform substantially as described
in the Documentation. C2C TELECOM'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 warrants that QORUS's provision of
Licensed Product to C2C TELECOM, and any related deliverables
provided to C2C TELECOM under this Agreement, 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"). Any deliverables (including any
software, hardware or firmware product(s) delivered by QORUS
to C2C TELECOM) will without error or omission, create,
receive, store, process and output (collectively, "Compute")
information related to Millennial Dates. This warranty
includes, without limitation, that the deliverables will
accurately, and without performance degradation, compute
Millennial Dates, date-dependent data, date-related
interfaces, or other date-related functions (including,
without limitation, calculating, comparing, and sequencing
such functions). At C2C TELECOM's request, QORUS will provide
written evidence sufficient to demonstrate adequate testing
and conversion of the deliverable to meet the foregoing
requirements. In all cases, the parties agree that Year 2000
compliance of Services will be dependent upon Year 2000
compliance of C2C TELECOM Customers' email systems and other
software and hardware. QORUS shall not be responsible for the
failure of its vendors and their services and products to be
Year 2000 compliant.
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 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
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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 BELOW) SHALL QORUS's LIABILITY TO C2C TELECOM IN CONNECTION
WITH THIS AGREEMENT EXCEED AMOUNTS PAID TO QORUS BY C2C
TELECOM UNDER THIS AGREEMENT. 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.
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
gross negligence or willful misconduct of the other Party.
QORUS agrees to indemnify C2C TELECOM, 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 C2C
TELECOM or any C2C TELECOM 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 C2C
TELECOM the right to continue using and reselling such
Service, or (ii) modify such Service so that it becomes
non-infringing.
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(b) QORUS shall have no obligation for any claim of
infringement arising from: (i) any combination of Services
with products or services not supplied or approved in writing
by QORUS, where such infringement may 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 C2C TELECOM or any of
its Affiliates.
(c) This Section 11.1 states C2C TELECOM's sole and exclusive
remedy in the event that a Service infringes on the
intellectual property right of any third party.
11.2. In the event a claim which is covered by the terms of this
Section is made by a third party against either C2C TELECOM 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 for 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.
11.3 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 C2C TELECOM 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.
12. Arbitration Clause.
Any dispute or disagreement arising between the Parties in connection
with this Agreement, which is not settled to the mutual satisfaction of
the Parties within thirty (30) days (or such longer period as may be
mutually agreed upon in writing) from the date that either Party
informs the other in writing that such dispute or disagreement exists,
shall be settled by arbitration in Los Angeles County, California, in
accordance with the American Arbitration Association Commercial
Arbitration Rules and Procedures. The cost of the arbitration,
including the fees and expenses of the arbitrator(s) and legal counsel,
will be shared equally by the parties unless the award otherwise
provides. Each Party will be responsible for its own legal fees;
provided, however, that the prevailing party in any arbitration
proceeding shall be entitled to reimbursement of its legal fees and
costs by the non-prevailing party.
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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 C2C
TELECOM. 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. Applicable Law. This Agreement shall be interpreted construed
and governed in accordance with the laws of the State of
California, without regard to its conflict of law provisions.
15.5. 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.
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15.6. 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.
15.7. 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. E-mail notices shall be effective upon receipt
provided that a confirmation copy thereof is posted as
provided above on the date of transmission.
QORUS: Chief Financial Officer
XXXXX.XXX
0000 Xxxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Fax (000) 000-0000
Xxxxxxx X. Xxxxx, Esq.
JEFFER, MANGELS, XXXXXX & XXXXXXX LLP
0000 Xxxxxx Xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax (000) 000-0000
C2C TELECOM: Xxxx Xxx
Chief Executive Officer
C2C Telecom
0000 Xxxxxxxx Xxx. Xxx 0000
Xxxxxxxx, XX 00000
15.8. 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.
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15.9. Entire Agreement. This Agreement, including Exhibit A, Exhibit
B and Exhibit C 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.
15.10 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.
C2C TELECOM, INC. XXXXX.XXX
By: By:
--------------------------------- --------------------------------
Name: Xxxx Xxx Name:
Title: President Title:
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EXHIBIT A
SERVICES AND PRICING
SERVICE DESCRIPTION
o GENERAL:
- 5 MB allocated disk space for message storage
- Personal email address
- Personal direct DID or 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 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
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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
- 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
o Qorus normally provides services on a flat monthly fee basis, but in this
agreement, the fee paid to QORUS shall be based upon the revenues and/or
profits generated by online advertising (sponsors, etc) and any minutes
driven through the combined Qorus and C2C systems.
o C2C Telecom, Inc will provide to Qorus on a monthly basis, 20% of the
advertising revenue from its website, xxxxxxx.xxx.
o C2C Telecom, Inc. will provide 50% of the gross margins earned through the
unified messaging accounts. (including minutes to call mailbox, to call
international or domestic long distance for the purpose of faxing or
leaving a voice-mail and retrieving messages via the calling card). Gross
margins shall mean all revenues less operating costs, but excluding
interest, depreciation, amortization and payments or distributions to the
owners of C2C (whether or not paid as salaries or dividends).
o Qorus shall have the right to examine the books and records of C2C Telecom
from time to time to determine C2C's compliance with this Agreement. In the
event of any shortfall, in addition to the shortfall, C2C shall promptly
pay the cost of the review.
o In its sales agreements for unified messaging, C2C will require its
customers to incur at least $1 monthly usage payments within the first
three (3) months. Should its customers fail to meet the usage requirement
in that period, C2C will either terminate their services or charge them a
monthly service fee. For the accounts which pay a monthly service fee, C2C
will pay Qorus seven(7) dollars per account per month.
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ADDITIONAL PRICING:
Pricing for additional features such as additional allocated disk space in 5MB
increments beyond 5 MB will be $.75 per month per subscriber.
Telco revenues for fax and pages sent from the UM platform and any
800/888/877-toll usage by subscribers for accessing an individual 8xx number,
will be shared by Qorus at a 50/50 gross margin split. C2C Telecom will xxxx
subscribers at no less than $.10 USD per minute billed at 60-second increments.
Qorus agrees to change all Qorus branding to xxxxxxx.xxx brand, including e-mail
address accounts, fax cover sheets, etc.
Any additional consulting, programming and/or development 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 C2C Telecom.
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EXHIBIT B
OPERATING PLAN
MARKETING AND SALES
C2C Telecom will make best efforts to identify target customers, create
appropriate collateral, advertising and other specific sales efforts to secure
commitments from C2C Telecom's customers to buy Qorus services. Such activities
will be directed toward prospective market segments, which are known to have
clear need for Qorus services.
Initially, C2C Telecom will target its existing customer base. There after, it
will concentrate its marketing focus on the following:
MARKETING:
1. Media
a. Radio
b. Newspapers
c. Business wires
2. Internet
a. Banner Ads - Business / Travel sites
b. Search Engine Registration
c. Link Exchange
d. Targeted marketing - direct mail
3. Promotions
a. give away
b. referral program
c. special events
DISTRIBUTION CHANNELS:
1. Individuals - sign-up right on the web, hassle free.
2. Small Businesses - Allow to setup home or small offices anywhere
3. Corporations - customized services according each company's needs
Qorus will help C2C TELECOM secure customers through any or all of the following
means:
- Supply existing marketing materials to C2C TELECOM for distribution or
original work for incorporation into C2C Telecom -developed materials.
- Periodic visits to C2C TELECOM by Qorus personnel to assist with
presentation and explanation of Qorus services.
- Promotional programs as mutually agreed by the parties.
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ACCOUNT CREATION/CLOSURE
C2C TELECOM customers will sign-up directly with C2C TELECOM by calling a
toll-free number or through a C2C Telecom-branded registration web page. In
either case, the customer may supply a pre-assigned reference number identifying
them as a C2C TELECOM 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 C2C Telecom's discretion.
BILLING
C2C TELECOM at the end of each month will provide to QORUS all Call Detail
Records from C2C's platform to assure compliance with the revenue/profit share
program.
Qorus will work with C2C Telecom in capturing usage of the system by subscribers
in order for C2C Telecom to xxxx their customers for additional storage, minutes
of usage, long distance faxes, etc. The rate table will contain agreed upon
minimum pricing between the Parties on a per minute charge and additional
storage will be billed at agreed upon minimum pricing between the Parties on a
per month for each additional 5MB.
CUSTOMER SUPPORT
C2C TELECOM 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, which includes system failures only.
TRAINING
A. Qorus will provide customer service/technical support training to C2C
TELECOM service support technicians in order for C2C TELECOM to be able to
provide first and second tier support to C2C TELECOM Customers, and to
document escalation procedures. Estimated length of this training - 2 days.
C2C Telecom 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 C2C TELECOM and its customers as well. If
Qorus adds significant functionality, which results in a retail price list
change, C2C TELECOM will be given the option to offer these services at a
revised pricing schedule to reflect such new services.
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OPERATIONS
o C2C Telecom will provide and provision all Telco circuits, Internet
bandwidth, co-location facility and backup power for QORUS communication
servers required to support C2C Telecom subscribers
o Upon QORUS request, C2C Telecom will also provide rack space for a monthly
fee of $300.00 to Qorus for other QORUS communication servers
o All UM accounts will be opened with a credit card and only accessible
through the C2C platform (or direct dial individual 8xx numbers to the
Qorus system) to allow usage of minutes and drive revenues for both
parties. At no time will accounts be opened that have UM account access
without driving Telco minutes that drive shared revenue for both parties.
If accounts are determined to be used with web access only and from a phone
that does not drive minutes on C2Cs network, then those accounts will have
the option to change to direct dial 8xx numbers to the Qorus platform
and/or pay a monthly fee (at a flat rate o f $7.00 for Qorus) for use of
the account. Any UM accounts that have been established for access through
the C2C platform may have inactive periods that do not drive revenue. These
accounts will be reviewed monthly by both parties to determine if they will
be closed or temporarily disabled.
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EXHIBIT C
Contacts
Contacts for Project Management
Qorus - Xxxx Xxxx
C2C Telecom - Xxxxx Xxxx
Contacts for Marketing Support
Qorus - Xxxx Xxxxxxxx, Senior Director of Marketing
C2C Telecom - Xxxxxxxxx Xxxxx
Contacts for Third Tier Support
Qorus - Xxxx Xxxxx -
Authorized C2C Telecom personnel for access to Qorus support - Xxx Xxxxx
Contacts for Development and customization
Qorus - Xxxx Xxxx
C2C Telecom - Xxxxx Xxxx
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