Rockwell Electronic Commerce Corporation
And
Virtual Xxxxxxx.xxx
Cooperative Marketing Agreement
This AGREEMENT is made and entered into, effective 3/15, 2000, by and between
ROCKWELL ELECTRONIC COMMERCE CORPORATION having an office at 000 Xxxxxx Xx.,
Xxxx Xxxx, Xxxxxxxx 00000, (hereinafter "Rockwell") and Virtual Xxxxxxx.xxx, a
corporation having an office at 0000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx, XX 00000
(hereinafter "COMPANY") for the purpose of defining the relationship, rights and
obligations of Rockwell and COMPANY (collectively the "Parties") as concerns the
development of a cooperative marketing strategy for the offering of solutions
involving Rockwell products and COMPANY Services to certain customers with
respect to current or prospective call center operations.
RECITALS
WHEREAS, Rockwell is a corporation engaged in, among other things, the
design, development, manufacture and support of call center systems, electronic
commerce centers and related telephony products, equipment, and systems;
WHEREAS, COMPANY is a corporation engaged in the business of marketing,
distributing, integrating, servicing and supporting call center systems,
electronic commerce centers and related telephony products, equipment, and
systems.
WHEREAS, Rockwell and COMPANY agree herein to establish processes and
procedures for meeting their respective customers' desires to use Rockwell and
COMPANY products and services;
WHEREAS, Rockwell and COMPANY desire to enter into non-exclusive
discussions working together to discover, develop, define and pursue potential
opportunities for the marketing and sale of the parties specific products and
services related to telephone call center operations, and
NOW THEREFORE, Rockwell and COMPANY hereby agree as follows:
NOW, THEREFORE, and in consideration of the mutual promises and benefits
flowing from each Party to the other, and the terms and covenants, agreements
and conditions hereinafter specified, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto, intending to be legally bound, have agreed and by these presents
do agree as more fully set forth in the following General Provisions.
GENERAL PROVISIONS
Article 1. Cooperative Marketing Program
1.1 Proposed Business Activities. Rockwell and COMPANY agree to enter into
non-exclusive discussions working together to discover, develop, define and
pursue potential opportunities for the marketing and sale of the parties'
specific products and services related to telephone call center operations.
Such development and marketing activities will be conducted on a
project-by-project basis, and any proposals developed by the parties with regard
to any opportunity will address such issues as the scope, structure, timing and
price of the equipment to be provided, the services to be performed and the
perspective responsibilities of the parties. With respect to each opportunity,
Rockwell and COMPANY will work together to prioritize the opportunities and to
determine from time to time the continued feasibility of engaging in any of
them.
1.2 Marketing Plan. Rockwell and COMPANY will cooperate to establish a
marketing plan to market the parties' products and services (the "Marketing
Plan"). The Marketing Plan will list and describe possible opportunities
identified by either Rockwell or COMPANY and set forth a marketing and sales
strategy with respect to such opportunities with a goal of promoting
effectiveness and avoiding duplication of sales efforts in the marketplace
between Rockwell and COMPANY.
1.3 Teaming Agreement. If Rockwell and COMPANY deem it appropriate, they
may enter into one or more teaming agreements, subcontracts or other written
agreements relating to defined opportunities with identified potential
customers, pursuant to which the parties will cooperate in submitting bids or
completing performance for identifiable projects and in which the roles of the
parties with respect to the products and services to be provided will be agreed
upon, such as designation of the prime contractor and subcontractor for the
project and pricing. It is anticipated that the parties may vary their roles
depending upon the particular opportunity to be pursued.
1.4 Publicity, use of Name and Trademarks.
1.4.1 While from time to time the parties anticipate efforts to jointly
develop media releases, public announcements or disclosures relating to mutual
business opportunities, all such releases shall be coordinated with and approved
by each Rockwell and COMPANY in writing prior to the release thereof.
1.4.2 The parties agree that the terms and conditions of this Agreement are
confidential, and that neither party shall disclose the contents of this
Agreement without the prior written consent of the other party, provided,
however, that the general existence of this Agreement shall not be treated as
confidential information. Moreover, the parties agree that they shall issue a
mutually acceptable (approved by each party in writing) joint press release
announcing the relationship established by this Agreement within ten (10)
business days following the Effective Date.
1.4.3 Nothing in this Agreement grants to either Party the right to use or
display the names, trademarks, trade names, logos or service marks of the other
party. Each party agrees to submit to the other party for written
prepublication approval, any materials, which may use or display any name,
trademark names, logos or service xxxx of the other party.
1.5 Forthcoming Opportunities. The execution of any definitive written
agreement between the Parties relating to one or more opportunity is subject to
the satisfactory completion of each of the following, which satisfactory
completion will be within the subjective discretion of each party: (1)
negotiation of mutually satisfactory terms and conditions in the agreement,
including without limitation provision relating to proprietary rights; (b)
receipt of any required third party consents, including all necessary regulatory
approvals; (c) resolution of all issues relating to staffing and other labor
matters involved in the transaction contemplated by the agreement; and (d)
receipt of all necessary corporate approvals.
Article 2. Confidentiality of Information
2.1 For the purpose of this Agreement, "Confidential Information" shall mean
technical or business information exchanged by the parties which is in
documentary or electronic form, prominently marked as confidential (or the like)
to the Disclosing Party. No document shall be marked as confidential unless it
is believed in good faith to contain Confidential Information. Any information
that is marked "proprietary" will be considered to be Confidential Information
under this Agreement.
2.2 Orally or visually disclosed information which otherwise satisfied the
requirements of the preceding paragraph will be Confidential Information only if
it is identified as confidential at the time or oral or visual disclosure and
within 21 days thereafter it is reduced to documentary form and prominently
marked as confidential (or the like).
2.3 For the period of five (5) years from the receipt of Confidential
Information from the Disclosing Party, the Receiving Party agrees (a) to use it
only as permitted in this Agreement, (b) to hold it in confidence and, except as
provided herein, to disclose it to no one other than the employees of the
parties having a need to know for the purpose of performing this agreement, and
(c) to safeguard it from unauthorized use or disclosure using the same degree of
care with which the receiving party safeguards its own Confidential Information.
2.4 A party receiving Confidential Information hereunder shall have no
obligation to safeguard information: (a) which was in the possession of the
Receiving Party with no restriction on its disclosure prior to its receipt from
the Disclosing Party under this Agreement; (b) after the same information
becomes publicly known or available through no breach of this Agreement by the
Receiving Party; (c) after the same information is rightfully acquired by the
Receiving Party without notice of its confidentiality or restrictions on its
disclosure; or (d) after the same information is independently developed by
personnel of the Receiving Party who have not had access to such information, as
can be established in writing.
2.5 The obligations to safeguard Confidential Information disclosed prior to
expiration or termination of this Agreement shall survive such expiration or
termination. The obligations of this Article 2 shall supersede the restrictions
of any stamps or legends that may be contained on Confidential Information
disclosed hereunder.
Article 3. Miscellaneous
3.1 Notice. Routine correspondence between the parties to this Agreement
shall be in writing and shall be appropriate mail, telegram, or courier service
mans to such addresses as the parties may, from time to time, specify. Notice
shall be given whenever required by a provision of this Agreement. Notice shall
be by personal delivery or may be made by facsimile or telex which is confirmed
in writing, sent by express mail with package tracking capability, sent by
certified or registered US mail, postage prepaid, return receipt requested, all
to the address listed below. When provided by facsimile or telex, Notice shall
be deemed given as of midnight, Eastern Standard Time, on the date the
confirmation is mailed.
(a) ADDRESS FOR ROCKWELL:
Rockwell Electronic Commerce Corporation
000 Xxxxxx Xx.
Xxxx Xxxx, Xxxxxxxx 00000
Attn: Contact Manager
(b) ADDRESS FOR COMPANY:
XxxxxxxXxxxxxx.xxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attn. Xxxxx Xxxxxxx
3.2 Term and Termination. This Agreement shall become effective upon both
parties signature having been affixed to this Agreement and shall remain in
effect for an initial period of twenty-four (24) months from the execution date
set forth above, and will automatically renew and continue in full force and
effect for three additional one year periods. Notwithstanding the foregoing,
this agreement may be terminated by either party at any time with or without
cause, by giving thirty (3) days notice of such termination.
3.2.1 Either party shall have the right to terminate this Agreement upon
thirty (30) days prior written notice to the other party.
3.2.2. The following conditions shall apply upon termination:
A. Each party shall discontinue all use of the other party's Confidential
Information and any copies thereof and, upon the written instruction of the
other party, shall delivery to the disclosing party, or destroy, all previously
delivered Confidential Information furnished by the other party and any copies
thereof in the possession of or under the control of the receiving party; and
B. Each party shall also erase or destroy all of the other party's
Confidential Information or copies thereof contained or stored in any form or
media, including the memory of a computer or computer system, and shall remove
the Confidential Information from any updated work. Each party shall certify
such to the other within fifteen (15) days of termination.
3.3 Force Majeure. Neither party shall be responsible for delays or
failures in performance of this Agreement resulting from: (a) acts or
occurrences beyond the reasonable control of such party (including, without
limitation thereto, fire, explosion, power failure, lightning, severe weather,
earthquakes, acts of God, war, revolution, civil commotion, any law, order,
regulation, ordinance, or requirement of any government or legal body or any
representative of any such government or legal body); (b) labour unrest
(including, without limitation thereto, strikes, slow-downs, picket-lines and
boycotts, whether such labor unrest could have been settled by acceding to the
demands of a labor organization). In such event, the party whose performance is
directly affected shall be excused from such performance on a day-for-day basis
to the extent of the interference. If such excuse in the performance of the
directly affected party affects the other party, then the performance by the
other party shall also be excused on a day-for-day basis to the extent of the
indirect interference. In the event that any such event of force majeure shall
continue for more than sixty days, then the parties shall enter into good faith
negotiations directed toward a mutually acceptable resolution of outstanding
obligations.
3.4 Governing Law. The validity, construction and effect of this Agreement
and of the Appendices and the respective rights and obligations of the parties
hereunder and thereunder, shall be governed and determined by and in accordance
with the laws of the State of Illinois without reference to principles of
conflicts of laws.
3.5 Waivers or Amendments. No failure to enforce any provision, assert any
right, or insist on performance of any obligation under this Agreement, in any
instance shall be deemed a waiver of the ability to enforce such provision,
assert such right, or insist on the performance of such obligation in the
future. No course of dealing, or information communication of any kind shall be
deemed to amend this Agreement. This Agreement may be amended only by a formal
written amendment signed by duly authorized representatives of both parties.
3.6 Relation of the Parties. This Agreement shall not be construed to
establish any form of partnership, agency or joint venture of any kind between
Rockwell and COMPANY, nor to constitute either party as the agent, employee, or
legal representative of the other. Neither COMPANY nor Rockwell has any
authority to make any representation on behalf of the other or otherwise to bind
or commit the other to any obligation without the prior written agreement of
such party. This Agreement shall not be construed to provide for any sharing of
profits or losses between the parties. The parties shall not, during the term
of this Agreement, use the terms: joint venturer, co-venturer, partner,
marketing partner, or partnership to describe the relationship between the
parties under this Agreement.
3.7 Severability. If any provision of the Agreement shall be found by a
court of competent jurisdiction to be invalid or unenforceable, such finding
shall not affect the validity and/or enforceability of the Agreement as a whole
or of any other part of the Agreement. In such case, this Agreement shall be
construed and enforced as if it did not contain the invalid and/or unenforceable
provision.
3.8 Survival of Obligations. Any respective obligations of COMPANY and
Rockwell in this Agreement which, by their nature, would continue beyond the
termination, or expiration of this Agreement, including by way of example, but
not limited to, the obligations provided in Article 2, shall survive such
termination, or expiration.
3.9 Assignment and Delegation. Neither party may assign any rights against
the other arising out of this Agreement without the prior written consent of the
other. Any such assignment attempted shall be void without the prior written
consent of Rockwell. However, this Agreement may be assigned by a party to its
parent or subsidiary. In the event of an assignment to a subsidiary, the parent
shall continue to be bound to all obligations hereunder. Neither party may
delegate any of its duties under this Agreement without permission from the
other party. If permission is given, no such delegation shall relieve the
delegating party of its responsibilities to the other party under this
Agreement.
3.10 Limitation of Liabilities. Notwithstanding any other provision herein
to the contrary, neither party shall be liable to the other party for any
consequential, indirect, punitive, special or incidental damages, or direct
damages in excess of $25,000, whether foreseeable or unforeseeable, based on
claims of the other party or its end-customer (including, but not limited to,
claims for loss of data, goodwill, profits, use of information provided by
either party, interruption in use or availability of data, stoppage of other
work) arising out of breach of express or implied warranty, breach of contract,
misrepresentation, negligence, strict liability in tort or otherwise.
3.11 Solicitation of Employment. The parties, during the term of this
Agreement, agree not to hire, solicit for employment or otherwise enter into a
contract with any employee(s) of the other party during this Agreement and for
six (6) months thereafter unless expressly agreed to in writing by the other
party.
3.12 No Implied Rights or Licenses. No right or license in or to any
intellectual property which is not expressly stated in this Agreement shall be
created from the terms of this Agreement or from the conduct in this performance
of this Agreement.
3.13 Similar Products and Services. Nothing in this Agreement shall be
construed as prohibiting or restricting either party from independently
developing or acquiring any marketing materials and/or programs which are
competitive, irrespective of their similarity with the other party's products.
3.14 No Endorsement. Execution of this Agreement does not, and shall not be
construed to be, an endorsement by either party of the products or services of
the other party.
3.15 Entire Agreement. This Agreement and the attached Exhibits constitute
the entire agreement between the parties with respect to the relationship, and
supersedes all previous and concurrent communications related to the
relationship.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the last date and year written
below.
XxxxxxxXxxxxxx.xxx Rockwell Electronic Commerce Corporation
Per: /s/ signed Per: /s/ signed
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Title: VP of Operations Title: Contractor
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Date: 3/17/00 Date: 3/16/00
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