EXHIBIT 10.5
Confidential
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FRANKLIN 800 CORP. 000 XXXXXXXXX XXXX. - XXXXXXXX XXXXXXX, XX 00000
a Division of FNet Corp.
------------------------- 805/000-0000; FAX 805/000-0000
Internet
xx@xxxxxxxx000.xxx xxxx://xxx.xxxxxxxx0XX.xxx
CONFIDENTIAL
SUBSCRIBER AGREEMENT
This Subscriber Agreement "agreement", made and entered into this 2nd day of
January, 1997, by and between FRANKLIN 800 CORP. a California Corporation.
(hereinafter "Company", having principal offices at 000 Xxxxxxxxx Xxxx, Xxxxxxxx
Xxxxxxx XX 00000, and LASERVEND, INC. (hereinafter "Subscriber", a UTAH Corp.,
having principal offices at 0000 XXXXX XXXXX XXXXXX, XXXX, XXXX 00000.
WHEREAS, Company will cause a standard 800 or 888 toll free dial up number or
numbers to be directed to a number or numbers defined by the subscriber for flat
rate pricing based upon the number of accounts or customers utilizing the 800 or
888 number(s).
WHEREAS, Company will only direct the 800 or 888 number(s) to an existing dial
up, data modem access telephone number terminating within the confines of the 50
United States of America.
WHEREAS, Subscriber warrants that they are the responsible party for, or have
written authorization from the responsible party to allow the termination of the
800 or 888 number(s) to the Subscriber defined telephone number(s).
WHEREAS, Subscriber understands and agrees that this offer requires a minimum
subscription block of 4,000 accounts per month.
1. PRICING.
Each block will be charged according to the following table: ("800
Number" Service).
Subscriber is to have three (3) 800/888 numbers to be pointed at the
telephone numbers of Subscribers choice which may change from time to
time. FNet hereby agrees to cause these numbers to `point' to the
numbers of Subscribers choice. Commencing on 1-15-97
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These three numbers will cost Subscriber as follows:
1st Block 4,000 accounts (Minimum) $5.00 per account, per month
2nd Block 4,000 accounts (8,000 cumulative) $4.50 per account, per month
3rd Block 4,000 accounts (12,000 cumulative) $4.00 per account, per month
The above monthly fee is payable in advance each month. In addition a set up fee
of $1,500 is also due in advance. Rates are by the Block with each Block
independently priced.
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2. SCOPE
Company agrees that this Agreement should not be construed to limit in any
way the type and manner of business activities that Subscriber may choose
to conduct on its own behalf Subscriber acknowledges that Company may
choose at any time to engage in business activities that compete directly
or indirectly with the business activities generally conducted by
Subscriber, including the development and distribution of communications
equipment computer programs and related support services and activities.
3. DUTIES AND RESPONSIBILITIES OF SUBSCRIBER
3.1 The Subscriber must pay for each month of service such that the funds
are received on or before the due date, beginning with the date of
this agreement. Company, at its sole discretion, may discontinue
service if the amount due if not paid on time or the funds to honor
payment instruments are not sound.
3.2 The Subscriber shall permit and assist the Company to establish a
direct, password protected, link to it's facilities which the 800
service is connected such that the Company can monitor, from time to
time the number of customers using the 800 facility.
3.3 In addition, the Subscriber shall permit and assist the Company or
it's designee, to review, during regular business hours, all billing
records which relate to the 800 service. It is Subscriber's
responsibility to separate the billing records to facilitate the
review by the Company.
3.4 The Subscriber shall use best efforts to ensure "Normal Acceptable Use
Policy" such that no "Nailed Up" users are permitted to continually
abuse the service and the Subscriber will report all 800 services
outages to Company ASAP.
3.5 The Subscriber hereby verifies the telephone numbers furnished to
Company are legally his to use and re-direct.
4. DUTIES AND RESPONSIBILITIES OF COMPANY
4.1 Company's sole responsibility is to cause to have up to three 800
numbers to be directed to the Subscribers telephone numbers.
4.2 This Agreement is nonexclusive and shall not limit the right of the
Company to conduct marketing for its own benefit or appoint or engage
other persons to conduct marketing activities on behalf of the Company
involving the same or other Products.
4.3 A finder's fee of $1,000 for each NEW Subscriber Agreement found or
procured by the Subscriber for the 800 service which the Company
enters into will be paid to Subscriber.
4.4 Also - the Products which the Company manufactures sold by the
Subscriber will be bear a commission or discounts. The commission or
discount rate will be that commission then being used by the Company.
4.5 Reports and Payment. Within 10 days after the close of each month
during the Term of this
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Agreement, Subscriber shall provide Company with information
concerning of the total number of customers that used or had access to
the 800 facility during the preceding calendar month.
5. TERM AND TERMINATION
5.1 TERM. The term of this Agreement shall commence on the date hereof
and shall continue thereafter, until terminated as provided herein.
This agreement will be automatically renewed each year provided the
Subscriber has paid the amounts due.
5.2 TERMINATION. This is a 2 month contract.
Either party may terminate this Agreement at any time by giving the
other party at least 60 prior written days notice but not before 2
months.
5.3 SURVIVAL. Upon termination of this Agreement, both Subscriber and
Company shall be discharged from any and all remaining obligations
arising in connection with this Agreement; provided, however, that,
notwithstanding the termination of this Agreement, for whatever
reason, Company and Subscriber shall remain liable for all obligations
that have accrued.
6. INDEMNIFICATION
6.1 INDEMNIFICATION BY SUBSCRIBER. Subscriber shall defend, indemnify,
and hold harmless Company and all personnel of Company from and
against any and all damage, cost, liability, and expense whatsoever
(including court costs and actual attorney fees) incurred by reason of
(1) any failure by Subscriber to comply with any covenant or agreement
set forth herein; (2) any claim brought by any customer of Subscriber
as a result of or in connection with any other arrangement for the
acquisition of Subscriber Products; or (3) any claim brought by any
person or entity based on the condition, quality, or character of
Subscriber Products or any promise, representation, or warranty given
with respect to Subscriber Products.
6.2 CONDITIONS OF INDEMNIFICATION. It shall be a condition of any such
indemnification hereunder that the party seeking indemnification (1)
give the indemnifying party prompt written notice of any claim,
demand, or action for which such indemnification is sought; (2) allow
the indemnifying party to control the defense and/or settlement of any
such claim, demand, or action; and (3) cooperate fully with the
indemnifying party with respect to the investigation, defense, or
settlement of any such claim, demand, or action.
7. MERCHANTABILITY.
Warranty Disclaimer. Except as otherwise provide herein, Company makes no
other warranties, express or implied, including the implied warranties of
merchantability and fitness for a particular purpose.
8. INDEPENDENT STATUS OF SUBSCRIBER.
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This Agreement alone establishes the rights, duties, and obligations of
Company and Subscriber with respect to the subject matter hereof. Company
shall have no right, title, or interest, nor shall Company assert any such
claim whatsoever, in any Subscriber Product, whether conceived or developed
by Subscriber or Subscriber Personnel before, during, or after either the
Term of this Agreement or the course of Agent's performance of any
particular Assignment hereunder.
9. TERMS HELD IN CONFIDENCE
Subscriber and Company shall hold in confidence the terms of compensation
and reimbursement set forth herein, and neither party hereto shall disclose
such terms to any other person or entity without the prior written consent
of the other.
10. GOVERNING LAW
This Agreement shall be governed by, and its terms and conditions shall be
construed in accordance with, the laws of the State of CA.
11. NO ASSIGNMENT
Neither this Agreement, nor any right or that may arise hereunder, may be
assigned, in whole or in part, voluntarily, involuntarily, or by operation
of law, by either party hereto without the prior written consent of the
other party, which consent may be granted only in writing by an authorized
representative of such other party.
12. NOTICES
All notices or other communications required or permitted to be given
hereunder shall be, as elected by the person giving such notice, (1)
personally delivered or (2) transmitted by postage-prepaid registered mail
to the parties as listed at the top of this agreement. Except as otherwise
specified herein, all notices and other communications shall be deemed to
have been given on (1) the date of receipt if delivered personally or (2)
five days after posting if transmitted by mail. Any party hereto may change
its address for purposes hereof by notice to the other party.
13. MISCELLANEOUS
13.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties and supersedes all prior agreements and
understandings of the parties of any kind whatsoever and pertaining to
any subject matter, whether written, oral, or otherwise, and may be
altered or amended only in a writing signed by both parties.
13.2 WAIVER. Except as otherwise expressly provided herein, no purported
waiver by any party of any breach by the other party of its
obligations, agreements, or covenants hereunder shall be effective
unless made in a writing subscribed by the party sought to be bound
thereby, and no failure to pursue or elect any remedy with respect to
any default under or breach of any
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provision of this Agreement shall be deemed to be a waiver of any
subsequent similar or different default or breach.
13.3 FORUM. Company and Subscriber hereby consent and agree that the
courts of the State of California are the exclusive forum for
litigation of any claim by Subscriber arising under this Agreement,
and hereby irrevocably waive and relinquish any right to bring, or
cause to be brought, any such action, or to have any such action
brought, in any judicial or administrative forum outside of the State
of California.
13.4 LIMITATION OF LIABILITY. Company shall not be responsible for any
damages arising from this agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FRANKLIN 800 CORP.
/s/ Xxxxx X. Xxxxxx 1/7/97
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Xxxxx X. Xxxxxx, CEO Date
SUBSCRIBER
By:/s/ Xxxxx X. Xxxxxxxxx 1-2-97
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Date
Print Name Xxxxx X. XXXXXXXXX
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Title: CEO/PRESIDENT
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Must be a Corporate Officer
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