SUPPLY AGREEMENT
This Supply Agreement for EUGRO Mobile Prepaid Services pursuant to the
Terms and Conditions attached hereto and incorporated herein (the "Agreement")
is by and between EUROPHONE USA, LLC ("EUROPHONE"), a New York limited
liability company, with offices at 000 Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx
Xxxx and GLOBE STAR LLC ("Purchaser"), a New Jersey limited liability company,
whose principal place of business is 000 Xxxxx 00 Xxxxx, Xxxxx, 0X, Xxxxxxxxx
Xxxxxxx, XX 00000 is entered into on this 6th day of September, 2007.
(EUROPHONE and the Purchaser are hereinafter sometimes referred to as the
"Parties" and individually as a "Party").
RECITALS
WHEREAS, EUROPHONE is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New York; and
WHEREAS, EUROPHONE is a service entity providing a wide range of
telecommunications products and services, including prepaid wireless
telecommunication services (the "Service") under the brand name EUGRO Mobile
and desires to sell to Purchaser the specified products, and;
WHEREAS, Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of New Jersey and desires to
purchase Eugro Mobile product as specified herein; and
WHEREAS, It is hereby understood and agreed by the parties hereto that
the RECITALS to this agreement are inseparable parts of this agreement.
NOW, therefore, in consideration of these promises and of the mutual
representations, warranties and covenants contained in this Agreement, the
parties agree as follows:
1. TERM
The term of this agreement shall be 2 (two) years from the date of last
signature. This agreement will automatically be renewable for an additional
one year unless (i) either party sends notice to the contrary at least
ninety (90) days prior to the expiration of the initial or any consecutive
period (the initial and consecutive periods shall hereinafter collectively
be referred to as "Term") or (ii) either party is in default of this
agreement.
2. PURCHASER OBLIGATIONS
A. Neither Purchaser nor any of its affiliates will enter into an agreement
with another reseller of CDMA and GSM prepaid wireless services.
B. Purchaser agrees to purchase Eugro Mobile products (handsets and airtime)
from EUROPHONE to distribute to their customer base thru their marketing
campaigns.
C. Purchaser will be responsible for its tax liabilities related to the sales
and/or distribution of all products and services offered by EUROPHONE.
D. Purchaser will be responsible for all shipping charges.
E. Purchaser agrees to abide by the return authorization policy set forth in
Appendix B.
F. Purchaser shall be responsible for providing customer service to its end
users for any hardware issues pertaining to handsets not obtained from
EUROPHONE. This may include, but is not limited to, customer problems
and inquiries related to handsets, airtime cards or other related
services and provisions. EUROPHONE shall be responsible for providing
customer support to end-users concerning, but not limited to, activation
and time usage issues. It shall be the Purchaser's responsibility to
make best efforts to maintain its customers' satisfaction.
3. EUROPHONE POLICIES
A. EUROPHONE's obligation to provide Service shall be binding to the extent
provided in this Agreement, conditioned upon receipt by EUROPHONE of
orders in a format acceptable to EUROPHONE.
B. EUROPHONE shall provision and ship within a mutually agreeable time frame
after receipt by EUROPHONE of a complete and accurate order form provided
that
1) Purchaser is not in breach of any covenants of this Agreement; and
2) EUROPHONE receives payment in accordance with this Agreement and
the attached Exhibits attached hereto and made part hereof by this
reference; and
C. EUROPHONE reserves the right to modify any of its telecommunications
services and/or its provisions including, but not limited to, adjustments
in rates to customers and handset pricing without notice.
1. All sales of airtime cards and handsets are final. EUROPHONE will
only accept returns that are in accordance with the return policy
in Appendix B.
2. Any disputes concerning but not limited to credits, returns,
payments and charges must be addressed in writing to EUROPHONE
within 30 days of the occurrence.
4. PRICING
Pricing provided to Purchaser is based on minimum purchase of 10,000 units
during the life of this Agreement.
5. PAYMENT TERMS
Payment due within 30 calendar days from receipt of invoice by EUROPHONE
for all Services and products delivered to Purchaser.
6. INDUSTRIAL PROPERTY RIGHTS
A. The Purchaser acknowledges that all trademarks, trade names, container
designs and other trade dress appearing on or used by EUROPHONE in
connection with any of the products or services and any other trade and
service marks owned or licensed by EUROPHONE or any Affiliates
(collectively the "Trademarks") are good and valid and are exclusively
owned by EUROPHONE or an Affiliate, as the case may be. The benefit of
any use of the Trademarks by the Purchaser pursuant hereto shall inure
to the benefit of EUROPHONE or the Affiliate that owns the involved
Trademark. If, as a result of the Purchaser's use, the Purchaser is
deemed, by operation of law or otherwise, to have acquired any title
or other rights to any of the Trademarks or any of their components,
the Purchaser shall forthwith assign the same to EUROPHONE or an
Affiliate designated by it without consideration.
B. The Purchaser shall not at any time do, or knowingly suffer to be done,
any act or thing which will impair the ownership and rights of
EUROPHONE or any of its Affiliates in and to the Trade names or
Trademarks. The Purchaser shall immediately report to EUROPHONE any
infringement by third parties of any Trade names or Trademarks whenever
any such infringement shall have become known to the Purchaser and will
fully cooperate with EUROPHONE and/or the owner thereof in connection
with the prosecution of any infringement action or other proceeding for
the protection of the Trade names and Trademarks.
C. Purchaser agrees to submit to EUROPHONE for review and pre-approval all
advertisements, business cards, signage and any other use of EUROPHONE's
and EUGRO MOBILE'S names or marks.
D. EUROPHONE acknowledges that all trademarks, trade names, container
designs and other trade dress appearing on or used by Purchaser in
connection with any of the products or services and any other trade and
service marks owned or licensed by Purchaser or any Affiliates
(collectively the "Trademarks") are good and valid and are exclusively
owned by Purchaser or an Affiliate, as the case may be. The benefit of
any use of the Trademarks by EUROPHONE pursuant hereto shall inure to
the benefit of Purchaser or the Affiliate that owns the involved
Trademark. If, as a result of the EUROPHONE's use, EUROPHONE is deemed,
by operation of law or otherwise, to have acquired any title or other
rights to any of the Trademarks or any of their components, EUROPHONE
shall forthwith assign the same to Purchaser or an Affiliate designated
by it without consideration.
E. EUROPHONE shall not at any time do, or knowingly suffer to be done, any
act or thing which will impair the ownership and rights of Purchaser or
any of its Affiliates in and to the Trade names or Trademarks. EUROPHONE
shall immediately report to Purchaser any infringement by third parties
of any Trade names or Trademarks whenever any such infringement shall
have become known to the EUROPHONE and will fully cooperate with
Purchaser and/or the owner thereof in connection with the prosecution of
any infringement action or other proceeding for the protection of the
Trade names and Trademarks.
7. BREACH
A. Breach of Purchaser is defined, but not limited to, any circumstances
where
1. Purchaser fails to make payments or replenish inadequate receipts of
payment, or
2. Purchaser is suspected of abuse or fraudulent use of any product or
service provided by EUROPHONE.
B. If Purchaser commits breach other than 9.A.1 above, Purchaser will have
10 days to remedy the said breach. If the remedy is unresolved,
EUROPHONE reserves the right to immediately terminate this Agreement
after remedy period is expired. Purchaser shall be liable for all
charges or other costs or damages resulting from said breach. EUROPHONE
reserves the right to immediately suspend order processing for breach of
9.A.1 above notice or liability to Purchaser.
8. TERMINATION
A. Either party may terminate this agreement upon 90 days written notice.
B. EUROPHONE may terminate this Agreement immediately upon notice via
telephone call, facsimile transmission, or courier to Purchaser in the
event of any of the following:
1. Purchaser's failure to maintain its open account in good standing or
to make payment under the terms of this Agreement as set forth herein,
or
2. If Purchaser purchases handsets from EUROPHONE and either
1) activates the handsets through another carrier, Purchaser,
reseller or other entity that would prohibit EUROPHONE from
being credited with the activation, or
2) ships handsets overseas, or
3) sells handsets to a market not approved by EUROPHONE in
Appendix A.
C. Either party may terminate this Agreement, upon five (5) days written
notice to the other party, for any of the reasons below.
1. A breach by the other party of any covenant, term, or condition
of this Agreement and the failure to cure such breach within five
(5) days after receipt of written notice of such breach from the
non-breaching party, or within fifteen (15) days in the event
Purchaser's agents are in violation of this Agreement.
2. Purchaser misrepresents EUROPHONE business products or Services,
fails to achieve 80% of minimum Purchaser Sales Level in any ninety
day period during initial term or during any subsequent six (6)
month renewal period, or engages in any fraudulent activity
relating thereto; or
3. Purchaser institutes any proceeding for relief under the
Bankruptcy Code, or if Purchaser becomes insolvent, or if a
receiver (permanent or temporary) is appointed by court of
competent authority, or if Purchaser makes general assignment
for benefit of creditors, or if execution is levied against
Purchaser's benefits or property, or suit to foreclose any lien
or mortgage against Purchaser's assets is instituted and such levy
or suit is not dismissed within thirty (30) days thereafter; or
4. EUROPHONE's Underlying Transport Providers or any carrier for
whom EUROPHONE resells services modifies or changes Tariff(s) or
contract(s) that make it unreasonable for EUROPHONE to offer the
Services contemplated herein.
D. EUROPHONE may terminate this Agreement in its entirety without
liability by giving Purchaser 14 days notice if EUROPHONE's service
provider exercises its clause for early termination to EUROPHONE.
Notwithstanding, if this agreement is terminated between Purchaser and
EUROPHONE for reasons other than breach or default as defined hereafter,
EUROPHONE agrees to offer a phase out period to Purchaser of one hundred
eighty days (180) days, starting on the date of termination, to continue
to service end users that have not disconnected service prior to
termination date. Purchaser will not be able to add any additional end
users from the date of termination. If EUROPHONE and service provider
terminate their agreement, either during or after agreement with
Purchaser terminates, the phase out period will be reduced to thirty
(30) days upon written notice to Purchaser.
E. EUROPHONE may terminate this Agreement immediately and without notice in
order to prevent damage to or degradation of its network, or to comply
with any law, regulation, court order, or other governmental request or
order which requires immediate action, for behavior that in EUROPHONE's
sole discretion may be deemed illegal, or as otherwise necessary to
protect EUROPHONE from legal liability. EUROPHONE will endeavor to give
Purchaser notice regarding the reason(s) for termination as soon as is
reasonably practicable after such termination.
F. Termination of this Agreement shall become effective upon receipt of
written notice via facsimile transmission, electronic mail, or courier
or upon expiration of the applicable cure period if said breaching party
fails to cure such breach.
G. All obligations to make payments for charges incurred prior to the
termination of this Agreement hereunder shall survive termination and,
immediately upon receipt of invoice, any and all amounts owed through
the Termination date shall be paid. EUROPHONE, at its sole option and
discretion, will immediately suspend Service for all products that has
been delivered but not paid within twenty-four hours of notice to
Purchaser that this agreement has or will be terminated.
9. CONFIDENTIAL INFORMATION
A. "Confidential Information" shall mean any competitively sensitive or
secret business, marketing, or technical information of EUROPHONE or
Purchaser, including the terms of this Agreement. Confidential
Information shall not include information which is (i) generally known
to the public or readily ascertainable from public sources (other than as
a result of a breach of confidentiality hereunder), (ii) independently
developed by the receiving party without reference to or reliance on any
Confidential Information of the disclosing party, as demonstrated by
written records of the receiving party, or (iii) obtained from an
independent third party who created or acquired such information without
reference to or reliance on Confidential Information.
B. Confidentiality. Each party agrees to maintain the complete
confidentiality of the Confidential Information of the other. Neither
party shall disclose or supply the Confidential Information of the other
to any non-employee third party without the prior written approval of
the other party. Either party may disclose portions of the Confidential
Information of the other to governmental regulatory authorities if such
disclosure is required by applicable laws, provided the party required
to make such disclosure notifies the other party of the applicable
legal requirements before such disclosure occurs and assists the other
party to obtain such protection as may be available to preserve the
confidentiality of such information.
C. Disposal. Prior to disposal of any media or materials that contain any
part of the Confidential Information of the other, each party shall
obliterate or otherwise destroy all Confidential Information, for
example, by erasing, incinerating, or shredding such materials.
D. Upon termination of this agreement, each party will cease use of the
other party's trademarks for advertising and promotional purposes. All
advertising and promotional materials utilizing said trademarks must be
returned to each respective company within 10 days.
10. WARRANTIES
A. EUROPHONE makes no warranties, expressed or implied, concerning the
services offered by EUROPHONE including network issues and hereby
expressly disclaims all implied warranties, including warranties of
merchantability or fitness for a particular use or purpose. Under no
circumstances shall EUROPHONE be liable to the Purchaser or any other
Person, including, without limitation, Subscribers, for any loss,
injury or damage, of whatever kind or nature, resulting from or arising
out of any mistakes, errors, omissions, delays or interruptions in the
receipt, transmission or storage of any messages, signals or information
arising out of or in connection with the Services or use of EUROPHONE's
network.
B. Without limiting the generality of the foregoing, in no event shall
EUROPHONE be liable to the Purchaser or any other person including,
without limitation, subscribers, for indirect, incidental or special
damages, lost profits, lost savings or any other form of consequential
damages, regardless of the form of action, even if EUROPHONE has been
advised of the possibility of such damages, whether resulting from
breach of its obligations under this agreement or otherwise.
11. NOTICE
Any notice or demand which, by any provision of this Agreement or any
agreement, document or instrument pursuant hereto or thereto, except
as otherwise provided therein, is required or provided to be given
shall be deemed to have been sufficiently given or served and received
for all purposes when delivered by hand, telecopy, or other method of
receipt confirmed facsimile or five (5) days after being sent by
certified or registered mail, postage and charges prepaid, return
receipt requested, or two (2) days after being sent by overnight
delivery providing receipt of delivery, to the following addresses:
if to EUROPHONE, at the address stated above, or at any other address
designated by EUROPHONE to Purchaser in writing; and if to Purchaser,
at the address stated above or any other address so designated in
writing to EUROPHONE.
12. FORCE MAJEURE
EUROPHONE shall not be responsible for any damages sustained by
Purchaser for any failure to deliver or perform, or any delay in the
delivery which shall be caused, directly or indirectly, in whole or in
part, by any carrier event; fire, flood, rain or windstorm; civil
disturbances; voluntary or mandatory compliance with law or a
regulation, policy or requirement of an governmental department or
agency, or the order of any court; Act of God; or any other cause of
similar or dissimilar nature beyond the reasonable control of
EUROPHONE.
13. INDEMNIFICATION
In the event EUROPHONE shall, without fault on its part, be made or
become a party to any suit, claim or demand directly as a result of any
act or omission of Purchaser, its stockholders, officers, directors,
employees, and agents, Purchaser shall hold EUROPHONE harmless from and
against any and all damages, claims, losses, costs, expenses, or
liabilities, including, without limitation, court costs and reasonable
attorney's fees, incurred by or imposed on EUROPHONE or in connection
with any such suit, claim or demand.
14. ARBITRATION
Any controversy, claim or dispute arising out of or relating to the
Agreement, or any breach, termination or invalidity thereof, shall be
settled by binding arbitration at the American Arbitration Association
in accordance with its then applicable rules, and judgment upon any
award rendered may be entered in any court having jurisdiction. In
accordance with such Rules, each party shall designate one arbitrator,
and these two arbitrators shall designate a third arbitrator. The
place of arbitration shall be Port Chester, NY, USA.
15. MISCELLANEOUS
A. Each party hereby represents and warrants that each has the right
to enter into this Agreement and that neither is a party to any
agreement, arrangement or understanding with any third party which
would inhibit or prohibit a right and/or ability to perform the
services called for by this Agreement. All warranties, covenants,
representations and guarantees shall survive the execution of this
document.
B. Applicable Laws. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
C. Waiver. No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused unless such
waiver or consent shall be in writing and signed by the Party to be
charged. No consent by any Party to, or waiver of, a breach or
default by the other, whether express or implied, shall constitute
a consent to waiver of, or excuse for any different or subsequent
breach or default.
D. Entire Agreement. This Agreement represents the entire agreement
between the parties with respect to the transactions contemplated
herein and may be modified only by a subsequent written document
signed by the parties. This Agreement may be executed in one or
more duplicate originals, all of which shall constitute but one
agreement between the parties hereto. This Agreement supercedes
any previous agreement between the parties.
E. Partial Invalidity. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were
omitted.
F. Assignment. This either party without the other party's prior
written approval, which shall not be unreasonably withheld, may not
assign Agreement and any rights or obligations arising under it.
G. Benefit. This Agreement shall be binding upon and inure to the
benefit of each party to this Agreement and their successors and
assigns (to the extent permitted herein).
IN WITNESS WHEREOF, the parties have executed this Agreement as of this the
6th day of September, 2007.
By: EUROPHONE USA, LLC. By: GLOBE STAR LLC.
Signature: /s/ Xxxxxxxx Xxxxxxxxxxx Signature: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxxxxxxxx Name: Xxxxxxx Xxxxx
Title: CEO Title: VP OPERATIONS
Date: September 6th, 2007 Date: September 6th, 2007
APPENDIX A
TERRITORIES AVAILABLE FOR DISTRIBUTION
ALL OF UNITED STATES
Initial ________
APPENDIX B
Return Policy - Terms & Conditions
1. The Purchaser has the discretion of accepting returns from the
end-user. If the Purchaser accepts returns, then the return policy
must be followed in order for EUROPHONE USA, LLC. ("EUROPHONE") to
recognize the return.
2. EUROPHONE will allow returns on defective merchandise only.
Purchaser will have 120 Days from the invoice date of handsets. The
invoice date is the date EUROPHONE sold the handsets to the Purchaser.
The Purchaser must contact EUROPHONE and receive a return
authorization number. (RA#). Purchaser must fill out the RA form
completely including an explanation of the problem or defect.
After 120 Days no RA# will be issued.
3. If the product is deemed defective by EUROPHONE, then EUROPHONE will
repair or replace the product. In this scenario, EUROPHONE will pay
for shipping back to customer. If the defective product is returned
with full promotional minutes, then EUROPHONE will not charge for
resetting the Service. If the defective product is returned without
full promotional minutes, then EUROPHONE will charge the standard
airtime rate for replacement minutes, minus the discount margin.
4. If the product returned is deemed not defective by EUROPHONE, then
EUROPHONE will send back the product with a new MDN and minutes back
to full promotional value. In this scenario, Customer pays for all
shipping charges. If the non-defective product is returned with
full promotional minutes, then EUROPHONE will not charge for unused
minutes, but will apply a re-processing fee of $5.00 (for each
handset). If the non-defective product is returned without full
promotional minutes, then EUROPHONE will charge the standard airtime
rate for replacement minutes, minus the discount margin and apply a
re-processing fee of $5.00 (for each handset).
5. There are no returns or exchanges on Airtime cards.
6. EUROPHONE must receive the defective product within 14 days of the
issuance of the RA #. EUROPHONE will not accept any additional
handsets once the RA# has been issued. After 14 days no returns
will be accepted.
7. If this product fails to operate under normal use and service, due
to improper materials or workmanship, EUROPHONE will, at its option
repair or replace the product in accordance with the terms and
conditions stipulated herein.
8. This return policy does not cover any failure of the product due to
misuse and/or normal wear and tear (including but not limited to use
in other than the normal and customary manner in accordance with the
manufacturer's instructions for use and maintenance of the product,
accident, modification or adjustment, acts of God, improper
ventilation and damages resulting from liquid).
9. This return policy does not cover product failures due to repair
installations, modifications or improper service performed by any
workshop other than the manufacturer's authorized service center,
opening of the product by unauthorized persons, or use of
generic-brand accessories that are not provided by EUROPHONE.
10. Purchaser is responsible for all shipping charges when returning
products to EUROPHONE. Additional shipping charges may apply.
(Please see points 3 & 4)
11. All returns must be in original packaging and with all accessories.
(Charger, User Guide, etc.)
12. Any changes or modifications to the return authorization form must
be communicated back to EUROPHONE after the RA # is issued or
EUROPHONE will have the right to reject the return.
Initial ________
