EXHIBIT 10.18
AGREEMENT
THIS AGREEMENT made and entered into this 1st day of April 1999, by and
between IPVoice Communications, Inc., a Nevada corporation ("IPVC") and
Xxxxxxxx.xxx, LLC, an Arizona corporation ("NC").
WHEREAS, IPVC is a provider of telephony services and NC is desirous of
implementing such telephony services in the United States;
WHEREAS, IPVC and NC have agreed upon a basis upon which NC shall
provide a list of thirty (30) cities in the United States within twelve (12)
months hereafter where IPVC will provide telephony services. NC will assist IPVC
to secure telephone lines, Internet connections and co-location facilities in
those cities. However; IPVC is responsible for implementing the equipment,
telephone lines, internet facilities, collocation space, costs and contracts and
so forth needed to ensure that the service is delivered in that city.
NOW THEREFORE, for and in consideration of the mutual promises,
convenience and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. The forgoing recitals and statements are true and correct and are
incorporated herein by reference.
2. NC shall market the telephony services set forth on Exhibit A hereto
(incorporated herein by reference) in those specific 30 cities with twelve
months from the date of this agreement, with a minimum of seventy five thousand
preregistered customers in said cities for the prescribed services within a
twelve month period to receive the compensation as described in section 9 (c)
and 9 (d). IPVC is responsible to "qualify" the pre-registered customers via a
live telephone call or Internet message to the customer of IPVC may choose to
use a third-party verification company. This must be completed within 30 days
from the date that the customer has pre-registered for the service. If this is
not completed within thirty days, the customer will be deemed as qualified. The
format as to what is considered "qualified" will be determined and agreed to by
both parties. IPVC has the option not to "qualify" the customer.
3. NC and IPVC shall each use its best efforts to establish and
facilitate the location and allocation of the necessary internet facilities in
each designated city.
4. NC shall pay all expenses with respect to marketing and advertising
as necessary to establish the base of pre-registered customers.
5. NC shall spend any and all time necessary to market IPVC telephony
services as set forth herein necessary to meet the terms of this agreement.
6. IPVC shall deliver the products set forth in Exhibit B (incorporated
herein by reference) so as to enable NC to market a flat rate product upon the
terms and conditions specified in Exhibit C (incorporated herein by reference).
7. NC shall be responsible for preparing and accurately presenting
telephony product information to the customer base to be established. This
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information must be supplied by IPVC within 30 days of the execution of this
agreement. Under the performance terms of this Agreement, a City shall be
considered delivered by NC, when NC has fulfilled the terms and conditions set
forth in paragraph 3 & 4 of this agreement and NC has also provided one hundred
pre-registered customers as defined in paragraph two above. IPVC shall indemnify
NC against all claims, suits, civil or administrative court proceedings or
actions arising out of IPVC's performance and obligations to customers for its
telephony services arising from this Agreement. NC shall only be liable to IPVC
for the amount of the consideration transferred to NC of the value at the date
of transfer from this Agreement, and neither shall be liable to the other under
any circumstances for punitive, special or exemplary damages arising from its
performance under the terms of this Agreement.
8. IPVC in consultation with NC shall determine the actual pricing of
the product and modification thereof as required. In the event IPVC and NC are
unable to agree on such pricing issues, the decision of IPVC shall be final.
IPVC's pricing decision must be reasonable under prevailing market, technical
and economic conditions at that time.
9. IPVC shall compensate NC for its services to the forgoing,
compensation will be paid as follows:
(a..) An activation/setup fee and a monthly flat rate fee per
customer is contemplated to be established, and in the event such fees are
charged and paid by customers NC shall receive 50% of the activation/setup fee
and 15% of monthly flat rate fees charged and paid by customers, all of such
fees to be paid only for customers signed as a result of NC marketing efforts.
This fee is to be paid to NC only during the time the customer is active up to a
maximum of two (2) years from the initial activation month. IPVC shall pay NC
within thirty (30) days of actual receipt of payment by customers for the
activation/setup fee and within thirty (30) days of actual receipt of payment by
customer for the monthly fees as paid by its customers under the terms of this
Agreement. IPVC will provide a written monthly statement accounting to NC for
all such charges received and setting forth NC's fees herein.
(b.) Upon the execution of this agreement NC shall receive
from IPVC a total of 100,000 shares of restricted common stock of IPVC; provided
however, should NC fail to deliver a minimum of eight (8) cities before December
31 1999, such consideration shall be fully refunded to IPVC without delay. IN
the event that NC fails to meet these performance goals, NC shall either return
the stock shares or their equivalent value at the time of their transfer. NC's
performance, under the terms of this Agreement, is fully contingent upon the
Contract between Benae International and IPVC. In the event that the Benae
International contract is void, NC shall have the option to return these shares
to IPVC thereby returning the parties to their status quo ante with NC's further
obligations pursuant to the terms of this Agreement fully extinguished, without
legal penalty.
(c) IPVC will issue to NC the following restricted shares of
IPVC stock based on the following performance levels to be reached by NC:
1) 8 cities delivered within 90 days of execution of the
agreement = 50,000 shares
2) 15 cities delivered within 150 days of execution of the
agreement = 50,000 + shares from #1 above
3) Each additional city above the 15 delivered (from #2
above) before December 31 1999 = 10,000 shares per city
up to a total of 30 cities.
These shares will be issued within 10 business days from the time the
performance level is reached.
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(d) NC will be issued the following Warrants and Options for
issuance of IPVC shares for two years at $2.50 per share based on the following
customer levels as delivered through the efforts of NC on behalf of IPVC as
follows:
(1) NC shall be issued a year $2.50 per share
warrants to purchase 30,000 (thirty
thousand) shares for every block of 5,000 (five thousand) pre-registered
customers up to achieving the goal of 75,000 pre-registered customers within a
12 month period. These warrants will be issued within 10 business days from the
time the performance level is reached.
(e) IPVC should cause an attorney's opinion letter to be sent
via facsimile to NC which outlines the terms contained herein by no later than
Thursday, April 1, 1999, 5pm. If not, this signed agreement shall become null
and void and unenforceable.
(f) Any shares issued in connection herewith shall be adjusted
for and subject to any common stock reorganization conducted by IPVC.
10. Term and Termination: This agreement shall commence on
execution date and shall be effective for a period of one calendar year. Except
as otherwise provided herein, in the event that either party hereto fails to
perform its material obligation hereunder or breaches the terms or conditions
hereof, the other Party, may at its option, give written notice to the party
which has failed to perform or has a material breach of this Agreement of its
intention to terminate this Agreement unless such material breach or failure of
performance is remedied within fifteen (15) days of such notice. Should the
breaching party fail to cure such breach within that time period, the noticing
party may terminate this agreement.
11. Dispute Resolution Policy: Binding Arbitration: The sole
and exclusive venue and jurisdiction for resolving any controversy, dispute or
claim between or involving the parties to this Agreement shall be Phoenix,
Arizona, pursuant to the Netgenie dispute resolution policy, a copy of which is
attached hereto an Exhibit "D" and incorporated herein by this reference, or, if
appropriate under the Netgenie Dispute Resolution procedures, a court of
competent jurisdiction located in the State of Arizona, Maricopa County.
IN TESTIMONY WHEREOF, witness the signatures of the parties hereto.
IPVoice COMMUNICATIONS, INC. Xxxxxxxx.xxx, LLC
/s/ Xxxxxxx X. Will /s/ Xxxxx Xxxxxxxx
-------------------- ---------------------
Xxxxxxx X. Will Xxxxx Xxxxxxxx
President/COO/Chairperson President/CEO
Xxxxxxx X. Xxxxx
an authorized representative
Executive Vice President/Secretary
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Exhibit A
Subject cities to be included:
1. Seattle
2. San Francisco
3. San Xxxx
4. Los Angeles
5. San Diego
6. Denver
7. Phoenix
8. Dallas
9. Houston
10. Chicago
11. Detroit
12. Atlanta
13. Washington, D.C.
14. Philadelphia
15. New York City
16. Boston
17. Salt Lake City
18. Las Vegas
19. Baltimore
20. St. Louis
21. Cincinnati
22. Orlando
23. Tampa
24. Miami
25. Newark
26. Long Island
27. Toronto
28. Vancouver
29. Calgary
30. Montreal
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Exhibit B
The TrueChoice products are all prepaid. Customer may elect to pay 30 days in
advance or IPVoice and deducted the payment from their charge card.
IPVoice TrueChoice I
Residential calling prepaid
$50.00 sign up
$25.00 per month
User may call any domestic city in the USA on the IPVoice network for a
flat rate of $25.00
All cities off the network will be billed at $0.10 per minute
IPVoice TrueChoice II
Business that have average billing of $1.00 to $5000.00
Small Business Pre Paid
$250.00 sign up
$100.00 per month
User may call any domestic city in the USA on the IPVoice network for a
flat rate of $100.00
All cities off the network will be billed at $0.09 per min
IPVoice TrueChoice Calling Card
If used in conjunction with any of the above programs
$10.00 sign up fee
$10.00 per month
User may call any domestic city in the USA on the IPVoice network for a
flat rate of $10.00
All cities off the network will be billed at $0.15 per min
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Exhibit C
NC will be compensated for sales under the following terms and conditions:
A. Any charge-backs or customer disputes and non-payments will be withheld from
the following month's commissions. NC will have 30 days to assist IPVC with any
customer disputes.
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Exhibit D
Xxxxxxxx.xxx, LLC
DISPUTE RESOLUTION POLICY
If a dispute arises relating to any relationship between xxxxxxxx.xxx
LLC and IPVC arising out of the duties or obligations contained in the parties'
agreement, it is expected that the parties will attempt in good faith to resolve
any such dispute in an amicable and mutually satisfactory manner.
In the event such efforts are unsuccessful, either Party may serve a notice
of mediation/arbitration ("Notice of Mediation/Arbitration") on the other Party.
Notice of Mediation/Arbitration shall be personally delivered or sent by prepaid
registered airmail or air courier, and shall be effective on receipt thereof by
the Party to whom it is addressed. Proof of receipt shall be a receipt signed by
any officer or responsible official of the Party to whom it is addressed. The
Notice of Mediation/Arbitration shall be dated, and without prejudice to any
right under the Rules permitting subsequent modifications, shall specify the
claims or issues which are to be subjected to mediation/arbitration.
IF DIFFERENCES CANNOT BE RESOLVED BY MEDIATION THE PARTIES AGREE THAT IN ORDER
TO PROMOTE TO THE FULLEST EXTENT REASONABLY POSSIBLE A MUTUALLY AMICABLE
RESOLUTION OF THE DISPUTE IN A TIMELY, EFFICIENT AND COST-EFFECTIVE MANNER, THEY
WILL WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AND SETTLE THEIR DISPUTE
BY SUBMITTING THE CONTROVERSY TO ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
RULES OF THE AMERICAN ARBITRATION ASSOCIATION (AA.A.A.@) EXCEPT THAT ALL PARTIES
SHALL BE ENTITLED TO ALL DISCOVERY RIGHTS ALLOWED UNDER THE FEDERAL RULES OF
CIVIL PROCEDURE AS THOSE RULES EXIST IN THE UNITED STATES FEDERAL COURT FOR THE
DISTRICT OF ARIZONA.
The Parties shall attempt to select a mutually agreeable
mediator/arbitrator from A.A.A.'s Panel of Mediators/Arbitrators. If no
agreement is reached within fifteen (15) days of the first written notice of
intent to mediate/arbitrate, the current Director of Professional Services for
A.A.A. in Arizona shall serve as the mediator/arbitrator.
The Arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C.
'1 et. seq., and the judgment upon the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. Either Party may elect to
participate in the arbitration telephonically. Any substantive or procedural
rights other than the enforceability of the arbitration agreement shall be
governed by Arizona law, without regards to Arizona's conflict of laws
principles.
The Parties further expressly agree that (i) the arbitrator shall only
reach his decision by applying strict rules of law to the facts, (ii) the
arbitration shall be conducted in the English language, in Maricopa County,
Arizona, (iii) the Party in whose favor the arbitration award is rendered shall
be entitled to recover costs and expenses of the arbitration including, but not
limited to, attorneys' fees and the cost and expense of administration of the
arbitration proceedings, and any costs and attorney's fees incurred in executing
on or enforcing the arbitration award, and (iv) the arbitral award shall be
issued in Maricopa County, Arizona, U.S.A.
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Except as provided in the following sentences, no party shall be entitled
to commence or maintain any action in a court of law upon any matter in dispute
until such matter shall have been submitted and determined as provided herein
and then only for the enforcement of such arbitration award. Provided that,
notwithstanding this dispute resolution policy, either party may apply to a
court of competent jurisdiction in Maricopa County, Arizona, to seek injunctive
relief before or after the pendency of any arbitration proceeding. The
institution of any action for injunctive relief shall not constitute a waiver of
the right or obligation of any party to submit any claim seeking relief other
than injunctive relief to arbitration. Judgment upon the award may be entered by
the United States Federal District Court or Maricopa County Superior Court
located in the State of Arizona, or application may be made to such court for
the judicial acceptance of the award and order of enforcement, as the case may
be, if the Arbitrator's award or decision is not complied with within seven (7)
days of the Arbitrator's decision.
Arbitration shall be the sole and exclusive procedure for resolution of
disputes between the parties, including any disputes that might arise after
termination of this Agreement.
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