WHOLESALE AGREEMENT MADE AND ENTERED INTO IN THE CITY OF MONTREAL, PROVINCE OF QUÉBEC WITH AN EFFECTIVE DATE OF
WHOLESALE
AGREEMENT MADE AND ENTERED INTO IN THE CITY OF MONTREAL, PROVINCE OF QUÉBEC WITH
AN EFFECTIVE DATE OF
_____________________________
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BY
AND BETWEEN:
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TÉLIPHONE
INC., a
body politic and corporate, duly incorporated according to law,
having a
place of business at 0000 Xxxx xx Xxxxxx Xxxx, xxxxx 0000, Xxxxxxxx,
Xxxxxx, X0X 0X0, herein represented by Xxxxxx
Xxxxxxxx,
President, duly authorized as he so declares,
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hereinafter
referred to as “TÉLIPHONE”
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AND:
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0000-0000
Xxxxxx Inc., also known as “Dialek Telecom”., a
body politic and corporate duly incorporated according to law,
having a
place of business at 0 Xxxxxxxxxx Xxx, xxxxx 000, Xxxxxxxxxx,
XX, Xxxxxx
X0X 0X0, herein represented by Xxxxx
Xxxxxxx, President,
duly authorized as he so declares,
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hereinafter
referred to as “Wholesaler”
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PREAMBLE
WHEREAS
Téliphone
is in the business of providing Voice Over Internet Protocol (VoIP) service
such
that telephone communications may be effected through the use of wireless or
wired high speed Internet and is an importer of the hardware devices required
for delivery of the service (the “Product”)
WHEREAS
Wholesaler
wishes to obtain the right to distribute a White Label VoIP version of the
Product known as “Dialek” (“White
Label Product”)
throughout Canada and the United States (the“Territory”)
on the
terms and subject to the conditions herein contained.
Whereas
the parties wish to set forth their rights and obligations pertaining to the
right of distribution of the White Label Product in the Territory and have
agreed to cause the product to be marketed in conformity with the terms and
conditions as provided herein;
WHEREFORE
THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
1. The
Preamble hereinabove stated shall form an integral part of the present Agreement
as if recited herein at length;
2. Definitions
2.1.
END
USER: These
are
members of the public who elect to gain access to a device for telephone
communication through the use of VoIP who are charged for the use of the
product;
2.2.
RECURRING REVENUES: This is the revenue being received by the Wholesaler from
their White Label Subscriber payable to the Wholesaler based on the services
purchased from Wholesaler.
2.3.
RECURRING COSTS: This is the cost being paid to Teliphone by wholesaler based
on
the services purchased from Wholesaler by their White Label
Subscribers.
2.4.
RE-SELLER: a Re-Seller is a company or individual who will sell the White Label
Product in The Territory pursuant to authorization emanating from the
Wholesaler.
2.5.
RETAIL OUTLETS: Means a commercial place of business selling electronic,
computer, telecommunications and related accessories and services with permanent
retail store frontage serving commercial enterprises and the consumer public
whose purposes is to invite the general public to enter their premises in order
to demonstrate and offer for sale products and services such that the Product
and the White Label Product may be promoted in the Territory.
2.6.
SERVICES: Services include but is not limited to the following items that can
be
purchased by the White Label Subscriber in order to make and receive calls
from
the various White Label Products:
| · |
Monthly
Single Point of Contact (SPC)
services
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| · |
Monthly
Basic VoIP calling services
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| · |
Monthly
Unlimited VoIP long distance calling
packages
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| · |
Monthly
Limited VoIP long distance calling
packages
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| · |
Long
distance calling on a per minute charge
basis
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| · |
Monthly
Cellular phone (iPCS) local air time calling
services
|
| · |
Additional
local air time calling services on a per minute
basis
|
| · |
Cellular
phone (iPCS) long distance air time calling
services
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2
2.7.
SUB-TERRITORY: Shall mean a region as defined by its telephone area code located
within the Territory.
2.8.
TERRITORY: Shall mean the countries of Canada and The United States of
America.
2.9.
VoIP: Voice
Over Internet Protocol consists of a form of voice communication through the
use
of high speed internet, wireless internet (wi-fi), router, gateway, portable
and
desktop communication devices
2.10.
WHITE LABEL BACK-OFFICE: means an internet portal supplied by Teliphone where
White Label Product Subscribers may gain access to all of their private records
through the use of internet, such records emanating from Teliphone’s central
serving system which would allow Wholesaler to determine what amounts and or
information to determine whatever information that they’re entitled to get
within the agreements made with Teliphone.
2.11.
WHITE LABEL SUBSCRIBER: This is any End User of the White Label version of
the
Téliphone VoIP or Cellular service in good payment standing who elects to
complete or receive a telephone call using a telephone device which is being
made available by Wholesaler.
3.
APPOINTMENT OF WHOLESALER
3.1.
Teliphone appoints the Wholesaler as a White Label Product Wholesaler in
the
Territory upon the terms and conditions herein set out and Wholesaler hereby
accepts such appointment.
3.2.
Wholesaler may promote and sell its White Label Product in The Territory
to
their existing client base. Wholesaler may also look to sell outside its
existing client base. This is permissible provided that Wholesaler does not
promote and sell its White Label Product through Retail Outlets without prior
written consent of Teliphone whose consent will not be unreasonably withheld.
Teliphone reserves the right to disallow Wholesaler to sell or promote its
White
Label Products to Retail Outlets should Teliphone feel that its presence
may in
any way negatively impact Teliphone’s own sales and promotional
activities.
4.
DETAILS OF SALES ACTIVITIES WITHIN THE TERRITORY
3
4.1.
Wholesaler acknowledges that on a prior date, Teliphone has entered into
agreement with Distribution Car-Tel Inc. (“Car-Tel”) in order to provide VoIP
services in the Territory to Business and Residential Clients and as a
consequence thereof renounces to any claim or beneficial interest and or right
with respect to any revenues derived from the activities of Teliphone and
Car-Tel.
4.2.
Wholesaler cannot sell their White Label Product in the Sub-Territory of the
city of St-Hyacinthe, Province of Quebec through Retail Outlets until October
1,
2005.
4.3.
Wholesaler cannot sell their White Label Product in the Sub-Territory of the
city of Laval, Province of Quebec to Business customers until November 1,
2005.
4.4.
Wholesaler shall be granted the exclusive right to sell their White Label
Product in the Sub-Territory of Sherbrooke, Quebec for a period of 6 months
upon
the signing of this agreement. This means that Teliphone will not promote its
Teliphone brand of products and services in the Sub-Territory of Sherbrooke
during this time.
4.5.
Wholesaler is entitled to sell their White Label Product to any Retail Outlets
only within the Sub-Territory of Sherbrooke, Province of Quebec, Canada. This
includes the geographic territory encompassing cities that are considered local
to Sherbrooke, including the cities found in Schedule “A”.
4.6.
Wholesaler may purchase all inventories of hardware devices for the White Label
Product from Teliphone at Teliphone’s landed cost. Payment will be made as per
the terms and conditions outlined in section 7. The current pricing of White
Label Product hardware devices can be found in Schedule “A”. Consequently,
Teliphone reserves the right to decline to accept any orders from Wholesaler
if;
a)
if the
credit worthiness of the Wholesaler is not considered to be appropriate,
Teliphone reserving in its sole discretion to determine the appropriate credit
credentials or;
b)
For
any other commercial reason arising out of current market
circumstances.
4.7.
Wholesaler reserves the right to purchase other hardware devices for its White
Label product, upon written approval from Teliphone, once Teliphone has been
provided a reasonable amount of time to fully evaluate said hardware.
Teliphone’s consent for use of different hardware for Wholesaler’s White Label
product will not be unreasonably withheld.
5.
RE-SELLERS / ASSIGNMENT
4
5.1.
Teliphone hereby grants to the Wholesaler the right to appoint persons or
companies as its Re-Sellers of the White Label Product, provided however that
the appointment by the Wholesaler of one or more Re-Sellers shall not relieve
the Wholesaler of its obligations hereunder. Teliphone shall be requested in
writing for its consent for such appointment, which consent will not be
unreasonably withheld.
6.
REQUIRED TELIPHONE SUBSCRIBER SALES
6.1.
Wholesaler shall purchase directly from Teliphone the minimum quantities of
the
Product intended for Sherbrooke, Quebec and hereby warrants and represents
that
it shall cause sales to occur to Sherbrooke White Label Product Subscribers
by
achieving activations of Business Clients and or End Users of a White Label
Product activation with the following minimum quantities provided
for:
| a) |
100
by upon the signing of this
agreement
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| b) |
500
within 3 months of the signing of this
agreement
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| c) |
1000
within 5 months of the signing of this
agreement
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6.2.
Should Wholesaler not achieve activations of the required number of White Label
Product Subscribers within the minimum quantities provided for in 6.1 above,
the
Wholesaler shall forfeit its right to the exclusivity of Sherbrooke, Quebec
as
outlined in 4.3. above.
6.3.
Teliphone agrees to provide the Wholesaler the product as ordered subject to
the
terms of this agreement and will use its best efforts to cause the Product
to
meet all End User and Business client requirements.
6.4.
Wholesaler hereby warrants and represents that it hereby agrees to the pricing
as set by Teliphone under schedule “C” which pricing may be modified from time
to time at the sole discretion of Teliphone.
7.
SHIPPING AND PAYMENT ARRANGEMENTS
7.1.
White Label Products will be shipped to one destination supplied by the
Wholesaler upon receipt by Teliphone of the Wholesaler’s purchase order. The
product shall be sold F.O.B. Teliphone’s warehouse.
7.1.1.
Terms of payment will pre-paid upon receipt of order.
7.2.
Teliphone will invoice Wholesaler for the number of activated accounts and
their
respective services at the end of each month payable upon receipt of invoice.
Wholesaler will maintain a pre-paid bank for all long distance minutes used
by
their End Users, which Wholesaler shall monitor in order to ensure that there
always remains a credit balance.
5
8.
RESPONSIBILITIES OF THE WHOLESALER
The
Wholesaler agrees that during the term of this Agreement, it shall:
8.1.
Comply and cause all its Re-Sellers or parties appointed by it to comply with
all applicable laws in the Territory relating to the advertising, distribution
and sale of Products and with the terms and conditions of this
Agreement.
8.2.
Devote its best efforts to the performance of its obligations under this
Agreement.
8.3.
Make
every reasonable effort and use proper means to develop the market potential
for
trade in the White Label Product and actively solicit the activation by End
Users.
8.4.
Teliphone shall provide Wholesaler with their White Label Product End User
account access, through the transfer of all required user names and passwords
such that Wholesaler can properly support its White Label Product End
Users.
9.
TERM AND TERMINATION
9.1
TERM.
This
Agreement shall commence on the date hereinabove and remain in effect for an
initial period of one (1) year from the effective date. This agreement shall
automatically renew successive one-year terms, unless either party provides
written notice to the other party not less than ninety (30) days prior to the
end of the Initial Term, or end of successive renewal terms. In
the
case of dissolution of this contract, Wholesaler will be entitled to commissions
on recurring revenues for as long as the White Label Subscriber that existed
prior to the dissolution of this contract remains a client in good standing
on a
continuous basis of Teliphone.
9.2
TERMINATION BY EITHER
PARTY. Either
party (the “Non-Defaulting Party”) may terminate this Agreement by providing at
least thirty (30) days prior written notice to the other party (the “Defaulting
Party”) upon the occurrence of any of the following events:
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(a)
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the
Defaulting Party is in default in the performance of any of its
obligations under this Agreement or breaches any provision hereof
and such
default or breach continues after at least ten (10) following receipt
of
written notice of such default or breach from the Non-Defaulting
Party to
the Defaulting Party.
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(b)
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the
conviction in any court of competent jurisdiction of either party
or any
employee, shareholder, director or officer of either party for any
crime
or violation of law if, such conviction is likely to adversely affect
the
operation or business of the other party or tend to be harmful to
the
goodwill or reputation of the other
party.
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6
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(c)
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Any
conduct or practice by either party, its directors, officers, employees
or
shareholders, which is injurious to the goodwill or reputation of
the
other party.
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(d)
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Either
party commits, participates or acquiesces in any fraudulent or improper
actions in regards to this agreement;
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10.
CONFIDENTIALITY.
10.1.
"Confidential
Information"
means
any business and technical information disclosed by either party to the other
party, either directly or indirectly, in writing, orally or by inspection of
tangible objects (including without limitation concepts, designs, documents,
prototypes or samples), which is designated as "Confidential," "Proprietary"
or
some similar designation or is disclosed under circumstances which indicate
its
confidential nature. Confidential Information may also include third party
confidential information. Confidential Information will not include any
information which
(i) was
publicly known and made generally available in the public domain prior to the
time of disclosure by the disclosing party;
(ii) becomes
publicly known and made generally available after disclosure by the disclosing
party to the receiving party through no action or inaction of the receiving
party;
(iii) is
already in the possession of the receiving party at the time of disclosure
by
the disclosing party as shown by the receiving party's files and records
immediately prior to the time of disclosure;
(iv) is
obtained by the receiving party from a third party without a breach of such
third party's obligations of confidentiality; or
(v) is
independently developed by the receiving party without use of or reference
to
the disclosing party's Confidential Information, as shown by documents and
other
competent evidence in the receiving party's possession.
10.2.
Non-use and Nondisclosure.
Each
party agrees not to use any Confidential Information of the other party for
any
purpose except to perform its obligations or exercise its rights under this
Agreement. Each party agrees not to disclose any Confidential Information of
the
other party to third parties or to such party's employees, except to those
employees or consultants of the receiving party who are required to have the
information. Nothing in this Section precludes either party from disclosing
the
other party’s Confidential Information as required by law or a legal
process.
7
10.3.
Maintenance of Confidentiality.
Each
party agrees that it will take reasonable measures to protect the secrecy of
and
avoid disclosure and unauthorized use of the Confidential Information of the
other party. Without limiting the foregoing, each party will take at least
those
measures that it takes to protect its own most highly confidential information
and will ensure that its employees and independent contractors who have access
to Confidential Information of the other party have signed a non-use and
non-disclosure agreement in content similar to the provisions hereof. Each
party
will reproduce the other party's proprietary rights notices on any such approved
copies, in the same manner in which such notices were set forth in or on the
original.
11.
GENERAL AND CONCLUDING PROVISIONS
11.1.
This agreement shall ensure to the benefit of and be binding upon the parties
hereto, and their respective heirs, legatees, executors, legal representatives,
successors and assigns.
11.2.
This Agreement contains the entire agreement among the parties with respect
to
the transactions contemplated herein, and supersedes all prior negotiations,
agreements and undertakings.
11.3.
This Agreement may be executed in two or more counterparts each
of
which shall be deemed an original and all of which together shall constitute
one
and the same Agreement. Faxed
signatures of the parties shall be valid and binding, however, the parties
hereto agree to provide the original of their signature to this Agreement to
each of the other parties thereafter.
11.4.
All
notices in connection with this Agreement shall be in writing and either
hand-delivered or mailed by registered or certified mail and shall be sent
to
all of the parties hereto. Any such notice shall be deemed to have
been
received on the earlier of the date of the hand-delivery or on the fifth (5th)
business day following the date indicated on the proof of mailing.
The
respective addresses for such notices are:
Téliphone
Inc
0000
Xxxx
xx Xxxxxx Xxxx, xxxxx 0000
Xxxxxxxx,
Xxxxxx X0X 0X0
Attention:
Xxxxxx Xxxxxxxx
Telephone
(000) 000-0000
Fax
(000)
000-0000
E-mail:
xxxxxxxxx@xxxxxxxxx.xx
8
Wholesaler
0000-0000
Xxxxxx Inc., Dialek
Telecom
0,
Xxxxxxxxxx Xxx, xxxxx 000
Xxxxxxxxxx,
Xxxxxx X0X 0X0
Attention :
Xxxxx Xxxxxxx
Telephone
(000) 000-0000
Fax
(000)
000-0000
E-mail :
xxxxxxxx@xxxxxxxxxxxxx.xx
11.5.
This Agreement shall be construed in accordance with the laws of the Province
of
Quebec and Canada.
11.6.
This Agreement may be amended only by written agreement duly executed by all
parties hereto.
11.7.
The
parties shall furnish and deliver from time to time such documents, and writings
as may reasonably be required as necessary or desirable to complete this
Agreement and to give effect to its provisions.
11.8.
The
parties agree to do and cause to be done such acts, deeds, documents and/or
corporate proceedings as maybe necessary or desirable to complete this
Agreement, and to give effect to its provisions.
11.9.
In
the event the majority control of the shares in Teliphone is sold to a third
party and or in the event that the sale of the assets of Teliphone occurs,
it is
understood and agreed that the rights and obligations provided for the benefit
of the Wholesaler under this agreement shall form the subject of a specific
clause under such future agreements whereby the new controlling shareholders
and
or the purchaser of the assets assumes all financial obligations of Teliphone
as
provided for herein.
11.10.
The parties hereto have requested that the present Agreement be drafted in
the
English language. Les parties déclarent qu’ils ont requis que la présente
entente soit rédigée dans la langue anglaise.
9
WHEREFORE
THE PARTIES HERETO HAVE SIGNED WITH DATE EFFECTIVE ON THE DATE AND PLACE FIRST
MENTIONED HEREINABOVE.
TÉLIPHONE
INC Wholesaler:
Dialek Telecom
per: per:
/s/
Xxxxxx
Xxxxxxxx
/s/ Xxxxx XxXxxxx
_________________________ __________________________
Xxxxxx
Xxxxxxxx, President Xxxxx
Xxxxxxx, President
10
SCHEDULE
“A” - Local cities to Sherbrooke, Quebec
|
Asbestos,
QC
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Xxxx'x
Xxxxx, QC
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Bishopton,
QC
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Bromptonville,
QC
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Bury,
QC
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Chartierville,
QC
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Coaticook,
QC
|
|
Xxxxxxx,
QC
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Cookshire,
QC
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Danville,
QC
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Deauville,
QC
|
|
East
Angus, QC
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East
Hereford, QC
|
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Eastman,
QC
|
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La
Xxxxxx, QC
|
|
Lawrenceville,
QC
|
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Magog,
QC
|
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Mansonville,
QC
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|
North
Xxxxxx, QC
|
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Richmond,
QC
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Rock
Island, QC
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Sawyerville,
QC
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Scotstown,
QC
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St-Adolphe-de-Dudswell,
QC
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St-Malo,
QC
|
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Stoke,
QC
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Stratford,
QC
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Xxxxxxxx,
QC
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Waterville,
QC
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Weedon,
QC
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Windsor,
QC
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Wotton,
QC
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11
SCHEDULE
“B”
Teliphone’s
landed costs for White Label Product hardware devices effective March 20,
2005:
| Teliphone wi-fi: | US$135.00 |
| TeliphoneLine single port: | US$68.00 |
| TeliphoneLine dual port: | US$85.00 |
12
SCHEDULE “C”
Effective
February 6, 2005
|
Item
|
Residential
/ SOHO
|
Commercial
/ Enterprise
|
|
Rate
Plan
|
||
| Single Point of Contact** |
$5.00/mth
|
$5.00/mth
|
|
Basic
VoIP
Service
Unlimited
within Teliphone local area***
|
$14.95/mth
|
$14.95/mth
|
| Unlimited Quebec |
$4.95/mth
|
$9.95/mth
|
| Unlimited North America**** |
$9.95/mth
|
$19.95/mth
|
|
Additional
Services
|
||
| Extra handset attributed to same number | ||
| Additional monthly charge |
$4.95/mth
|
$4.95/mth
|
| Extra phone number on same handset |
$4.95/mth
|
$4.95/mth
|
| Activation charge per line |
Currently
Free
|
$19.95
|
*
Includes a $30 long distance credit upon activation.
**PC,
Single Point of Contact, includes a phone number, FollowMe Call forwarding
and
Voice Mail.
***
Local
area includes Montreal, Sherbrooke, St-Hyacinth, Toronto and New York. Future
Canadian cities will be added to the local coverage area.
****
Includes Continental US and Canada.
13
SCHEDULE
“D”
Teliphone
will provide VoIP services to Wholesaler for the following prices:
Basic
VoIP line, within Teliphone’s local calling area (Montreal, New York and
Toronto), including Single Point of Contact for Cdn$12.97.
Basic
VoIP line as above, including unlimited calling within the Province of Quebec
or
Province of Ontario for Cdn$16.19.
Basic
VoIP line as above, including unlimited calling within the Continental US &
Canada for Cdn$19.44.
Teliphone
will provide to Wholesaler its long distance services at a discount of 10%
off
of Teliphone’s posted retail rates.
WHOLESALER
will also acknowledge that if Teliphone services are sold to a Call Center
customer, then WHOLESALER’s Call Center customers cannot subscribe to unlimited
long distance packages and must negotiate a per minute Long Distance rate with
Teliphone.
