Exhibit 10.7
AGREEMENT
This Agreement ("Agreement") is made and entered into as of this 6th
day of June, 2007, in Boca Raton, Florida by and between China Voice Holding
Corp. with its principal office located at 000 Xxxxx Xxxx, Xxxxx 000 Xxxx Xxxxx,
Xxxxxxx 00000 doing business through Vastland Holdings (Beijing) Co. Ltd. with
its principal office located at 00 Xxx Xx Xxxx Xx Xx, Xxxx 000X Xxxxxx Xxxx Da
Sha, Hai Xxxx District, Beijing, People's Republic of China ("VH"), and
InterEdge Technologies, LLC a Florida Corporation whose principal commercial
office is located at 00000-X X.X. Xxxxxxx 00 Xxxxx, Xxxxx 000 Xxxxxxxxxx Xxxxxxx
00000 ("Partner").
WHEREAS VH operates through its subsidiaries in the People's Republic
of China ("PRC") in the specialized fields of Telecommunication, Office
Automation and Voice over IP Services, collectively referred to herein as the
"Services"; and
WHEREAS Partner is a manufacturer and supplier of specialized Internet
Telephony telecommunications hardware and technology, collectively referred to
herein as the "Hardware"; and
WHEREAS Partner has agreed to be appointed as VH's supplier of
Intelligent Telephone Adapters (ITAs), IP Telephones and other peripheral
hardware to support IP telecommunications services for Chinese Government
Contracts. Furthermore, Partner is appointed as VH's exclusive supplier of
Internet Telephony hardware so long as Partners's technical requirements,
competitive pricing and the revenue sharing terms and conditions hereinafter set
forth are met.
NOW, THEREFORE, in consideration of the representations, warranties and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Incorporation of Recitals. The foregoing recitals are hereby
incorporated into this Agreement and made a part hereof.
2. Appointment.
(a) VH hereby appoints Partner as an exclusive partner of VH to
supply telecommunications equipment hardware, associated software and support
set forth in the attached Exhibit "A".
(b) Partner hereby acknowledges and agrees that its appointment
hereunder is exclusive under the conditions hereinafter set forth.
3. Term of Appointment. The term of Partner's appointment under this
Agreement shall commence as of the date hereof and shall continue until
terminated in accordance with Section 8 below (the "Term").
4. Obligations of Partner. Partner shall have the following obligations
under this Agreement:
(a) Partner shall perform all of its activities under this
Agreement in a competent, timely and professional manner. Partner shall comply
with all industry standards, laws, statutes, tariffs, ordinances, regulations,
rules and other legal requirements applicable to the Hardware supplied and
supported by Partner.
(b) Partner shall hold and treat as confidential all information
known or acquired by Partner with respect to VH's arrangements with third
parties, contracts, and technology except where otherwise permitted by VH or
required for the Partner to fulfill its obligations under this Agreement.
(c) Partner shall refrain from engaging in any unethical,
deceptive, misleading or inappropriate conduct in promoting, marketing,
offering, and soliciting orders for the Hardware.
(d) Partner shall not use the name, trademarks, trade names,
service marks, goodwill and other proprietary rights of VH and/or its parent
company China Voice Holding Corp ("CHVC") without the prior written consent of
an authorized officer of CHVC.
(e) Partner shall deliver hardware in a timely manner in
accordance with mutually acceptable delivery schedules and VH Government
Contract requirements to VH designated locations.
(f) Partner shall provide a sufficient quantity of hardware for
each site or to VH designated warehouse location for defective or non-working
unit replacements. In addition, Partner will provide replacement units either
new or refurbished directly to VH customers under VH name so that VH customer
does not experience any interruption to VH telephony services provided. Partner
shall be fully responsible for keeping telephony equipment operational, in good
working order and will provide VH customer with detailed instructions and
support for returning defective equipment to a location within China.
(g) Partner shall provide technical assistance to CA for the
integration of hardware and software into VH's Candidsoft O/A platform. In
addition, Partner shall provide private labeling to VH as well as device
configuration that supports true "Plug and Play" auto provisioning.
(h) All costs associated with the shipping delivery of equipment
to VH designated location shall be the responsibility of the Partner. Monthly
shipments shall be made to designated VH location.
5. Eligibility for Payment.
(a) During the Term, Partner shall be eligible for an agreed upon
percentage of VH profits to be applied towards the payment of all of its
legitimate and appropriate invoices for its Hardware provided, installed and
made active by VH in accordance with the prevailing terms and conditions that
have been mutually agreed and are in place at the material time. VH will serve
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as a Guarantor for the prompt and full payment at all times and under all normal
commercial circumstances.
(b) Upon the termination of the Term for any reason other than
Partner's breach of this Agreement, Partner shall continue to be eligible to
receive payment for active Hardware during the term of VH's Government Contracts
in the revenue sharing percentages outlined in Exhibit "A".
(c) Revenue sharing percentages and monthly payment as agreed is
attached herein as Exhibit "B".
6. Independent Contractor Status.
(a) For all purposes relating to this Agreement, Partner shall be
deemed an independent contractor of VH, not a joint venturer, employee or agent
of VH. Partner shall have no authority to make any statement, representation,
warranty or agreement on behalf of VH without the prior written consent of an
authorized officer of VH, and Partner shall refrain, and cause Partner's
employees, representatives and agents to refrain, from purporting to have such
authority.
(b) Partner shall determine the means and methods by which Partner
conducts its business, subject only to the express terms of this Agreement.
Partner shall be responsible for any employees, representatives or agents whom
it elects to hire or otherwise retain, and neither Partner nor any of its
employees, representatives or agents shall be entitled to participate in or
receive any rights or benefits under VH's employee benefit programs.
7. Indemnification. To the full extent permitted by law, Partner shall
defend, indemnify and hold harmless VH, its affiliated companies, and each of
their respective shareholders, directors, officers, employees, representatives
and agents from any and all claims, demands, causes of action, liabilities,
judgments, damages, losses, fines, penalties, expenses and costs (including
reasonable attorneys' fees and court costs) arising from or relating to any
breach of this Agreement by, or any other act or omission of, Partner, its
shareholders, employees, representatives and agents.
8. Termination.
(a) This Agreement is intended to last for the duration of the
length of time measured in calendar months that the said contracts issued by VH
and accepted by Partner shall require for complete fulfillment of hardware
ordered by VH for Government Contracts in PRC and for so long as equipment is
being utilized and considered "active". This complete time frame is referred to
herein as the "Term".
(b) VH shall have the right to terminate the Term upon written
notice to Partner upon any material breach by Partner of any of its obligations
under this Agreement.
(c) If Partner does not agree with any material amendment to this
Agreement, including without limitation, any VH amendment made pursuant to
Section 3 or Section 8(a) above, Partner shall have the right to terminate the
Term during the thirty (30) days following VH's notice to Partner of such
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amendment. During such 30-day period, Partner must give VH notice of its
rejection of such amendment and its wish to terminate or Partner shall be deemed
to have accepted such amendment, and this Agreement shall continue in effect as
so amended.
(d) The termination of the Term shall not relieve either party of
any liabilities previously accrued hereunder or any covenant, obligation or
liability which is to survive or be performed after such termination. Neither
party shall, by reason of the termination of the term, be liable to the other
party for damages, compensation or reimbursement of any kind or nature on
account of lost revenues, lost profits, or prior expenditures, investments or
commitments made in connection herewith.
9. Non-Competition and Non-Solicitation.
(a) During the Term and for a period of twelve (12) months
thereafter, neither party shall, without the prior written consent of an
authorized officer of the other party, solicit, induce, offer to employ, or hire
or otherwise retain any employee of the other.
(b) The parties herein shall execute a Non-Disclosure and
Non-Circumvention Agreement in the form as attached herein as Exhibit "C"
10. Disclaimer of Warranties; Limitation on Liability.
(a) Partner hereby acknowledges and agrees that, except as
expressly set forth herein, VH has not made and makes no representations or
warranties of any kind or nature concerning the services, and specifically
disclaims any and all representations and warranties concerning the services,
both express and implied, including, without limitation, all warranties of
merchantability and fitness for a particular purpose or use.
(b) VH shall not, under any circumstance, be liable for
consequential, incidental, indirect or special damages, including, without
limitation, loss of anticipated revenues or profits or damages resulting from
claims brought by customers or other third parties against partner.
11. Miscellaneous Provisions.
(a) VH shall not be deemed in breach of this Agreement or liable
for any failure or delay in its performance under this Agreement if such failure
or delay is due in whole or part to act of God, war, riot, act of terrorism,
government action, fire, explosion, accident, flood, storm, mechanical
breakdown, failure of power, civil disturbance, labor trouble, acts or omissions
of Carriers, other contractors, vendors or suppliers of VH, Partner, its
employees, representatives or agents, or any other circumstance beyond the
reasonable control of VH.
(b) All notices required or permitted by this Agreement shall be
made in writing and delivered personally, by overnight carrier, or by certified
mail, return receipt requested, to the recipient at its principal office address
which is set forth in the first paragraph of this Agreement, or to such other
address provided to the party providing notice in the same manner as set forth
in this paragraph for notice. A notice delivered personally or by overnight
carrier shall be deemed delivered when received or the next business day,
whichever is earlier. A notice sent by certified mail, return receipt requested
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shall be deemed delivered when deposited in the depository of the U.S. Postal
Service.
(c) This Agreement shall be interpreted and enforced in accordance
with the laws of the State of Florida, USA without giving effect to principles
of conflict of laws. The section headings contained herein are for the
convenience of the parties only, and shall not be considered in interpreting
this Agreement. The provisions of this Agreement are intended to be interpreted
and enforced in a manner which renders them valid and enforceable. If any
provision of this Agreement is found invalid or unenforceable, such provision
shall be deemed excised from this Agreement without affecting the validity or
enforceability of the balance of this Agreement.
(d) This Agreement is deemed to have been made in the United
States. All of VH's rights and remedies stated in this Agreement are in addition
to, and not in substitution of, all other rights and remedies available at law
or in equity. Partner agrees that its violation of this Agreement will cause
irreparable and substantial damage to VH for which no adequate remedy may be
available at law. In addition to any other right or remedy available, VH shall
have the right to an injunction enjoining any violation of this Agreement, or
threat thereof, without need of a bond or a showing of actual damages.
(e) No waiver of any breach of this Agreement shall be considered
valid unless in writing and signed by the party against which such waiver is
being asserted, and no such waiver shall be deemed a waiver of any subsequent
breach of the same or any other provision of this Agreement.
(f) This Agreement may be executed in any number of counterparts,
all of which when taken together shall constitute one and the same original.
This Agreement may be executed via facsimile, and a facsimile signature shall be
deemed an original signature for all purposes relating to this Agreement.
(g) Each party represents that it is fully authorized and
empowered to enter into and perform this Agreement, and that this Agreement
constitutes a valid and binding obligation of such party fully enforceable in
accordance with its terms.
(h) This Agreement shall inure to the benefit of and be binding
upon VH and its successors and assigns. The rights and benefits of Partner under
this Agreement are personal to Partner and may not be assigned or transferred to
any other person or entity without the prior written consent of VH and such
consent will not reasonably be withheld. Any attempted assignment or transfer
without such consent shall be null and void.
(i) This Agreement contains the entire agreement of the parties
and supersedes all prior representations, negotiations, commitments and
agreements between the parties with respect to the subject matter hereof.
Subject to the foregoing provisions of this Agreement, no modification or
rescission of this Agreement shall be deemed valid unless in writing and signed
by Partner and an authorized officer of VH.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date appearing above.
China Voice Holding Corp. InterEdge Technologies, LLC
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
----------------------- ---------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxx
Title: President and CEO Title: Executive Vice President
Witness: /s/ Xxxx Xxxxxxxxx Witness: /s/ Xxxx Xxxxxxx
------------------ ----------------------
Xxxx Xxxxxxxxx Xxxx Xxxxxxx
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Exhibit A
Equipment: "Plug and Play" Intelligent Telephone Adapters (ITAs) or 2 line (VOIP
and PSTN) IP Telephones. Private labeled per VH/Candidsoft instructions.
Labeling for current contracts will be SKY O/A logo with a model number to be
determined.
Other hardware items shall be added upon request. The cost basis and revenue
sharing percentage shall be mutually agreed upon and determined on a
case-by-case basis.
Exhibit B
Partner Revenue Sharing Percentages:
Partner shall receive 60% of telephony usage profits until Partner has received
$46.00 (cost basis) for each active ITA or IP Telephone. After Partner has
received its cost basis, Partner shall receive 20% of telephony usage profit for
as long as the device is active under a VH contract. After Partner has received
2 times the amount of the cost basis, title of hardware transfers to China Voice
Holding Corp. and hardware is considered paid in full.
Billing and Payment: Per existing Government agreements, VH is working with each
Government Agency on a prepaid basis. VH will receive payment from each agency
for completed department installations. Typical Department size is as follows
and may be fully installed within one week: Town level-10 to 15 users, City
level- 50 to 60 users, Provincial level- 120 to 150 users. VH will pay Partner
the revenue share percentage of profit received for the period from 25th of the
preceding month to through the 24th of the current month. Payments will be made
on the 1st business of each month for this period via wire transfer to a Bank
within China. The O/A system shall track each device by MAC address. VH will
provide a detailed accounting of usage per MAC address to Partner via secure web
address.
Current CPAD and XXXX Contracts with initial delivery requirements:
1) The CPAD contract indicates a total of 35,000 seats. 650 IP
Telephones or ITAs are required to be installed in July 2007.
a. Revenue per seat is estimated at USD30 average per month with the
profit at USD20
2) The XXXX contract indicates a total of 50,000 seats. 250 IP
Telephones or ITAs are required to be installed in July 2007.
a. Revenue per seat is estimated at USD30 average per month with the
profit at USD20
3) The XXXX Loan Application contract indicates a total of 5000
commercial business locations and 1200 Government office
locations. The initial installation period calls for up to 3 IP
telephones to be installed in each location between July to
November 2007.
*A complete and refined forecast of hardware needs will be provided within 10
days from the execution on this agreement. It is the responsibility of VH to
provide updated equipment forecasts each month.
