Exhibit 10.7
REIMBURSEMENT -- OUTSOURCING AGREEMENT
AGREEMENT made as of April 1, 2003 by and between Trans Voice L.L.C.
(Trans Voice): a Florida limited liability company, having an office at 00000
Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxx 00000 and Epixtar Corp., a Florida corporation
(The "Company" or "Epixtar") having an office at 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxx, 00000.
WITNESSETH
WHEREAS, The Company is engaged through subsidiaries in the business of
telemarketing of its goods and services; through domestic and international
Telemarketers
WHEREAS The Company has acquired expertise in marketing in general with
specific experience in telemarketing, especially international
Telemarketing and product development;
Whereas, the Company desires to (1) offer marketing services to third
parties ranging from the planning and operation of a direct marketing campaign
to the performance of specific marketing functions and (2) develop its own
international telemarketing network for the forgoing and its existing business.
WHEREAS the Company has determined that outsourcing the development of
these functions would be substantially less costly and more effective that doing
so internally,
WHEREAS the Company therefore desires to outsource the services as
described in schedule A;
WHEREAS Trans Voice is a principal shareholder of Epixtar, and desires
for no consideration to assist the Company in outsourcing these services
including the retention and supervision of a subcontractor to perform these
services.
WHEREAS the Trans Voice with the approval of the Company has already
obtained an independent third party ("Subcontractor") to perform these services
and has been paying the Subcontractors charges and supervising the performance
of these services.
WHEREAS the parties desire to finalize their agreement,
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings hereinafter set forth, it is agreed:
1. Definitions
The following words shall have the definitions set forth below:
(a) The "Company" shall mean Epixtar Corp. and each Subsidiary of
the Company.
(b) "Services" shall refer to the services set forth in Schedule I
hereto.
(c) "Subsidiary" shall refer to any entity which is majority owned
(directly or through one or more entities) or otherwise
controlled by the Company whether in existence on the date
hereof or formed hereinafter.
2. Appointment. The Company hereby appoints Trans Voice to retain and
supervise the Subcontractor to perform the Services and Trans Voice accepts the
appointment. During the term of this Agreement Trans Voice shall provide the
Subcontractor and cause the Subcontractor to provide the Services.
3. Trans Voice shall receive no compensation for its services however
it shall be reimbursed for all expenses and payments to the Subcontractor The
Company shall pay in advance or reimburse Trans Voice the amounts due or paid
Subcontractor as set forth in Schedule II as the same may be revised from time
to time, with the Company's approval.
4. Term. This Agreement shall continue for a period of three years
commencing as of the date hereof and ending on Match 31, 2006; provided this
Agreement shall be renewed annually thereafter unless terminated by either party
upon no less than thirty days notice.
Notwithstanding the foregoing, this Agreement shall terminate in
the event Trans Voice's agreement with Subcontractor terminates
for any reason and Trans Voice is unable to find a successor
within sixty days of such termination. Such termination of this
Agreement shall be without liability to either party, except for
amounts accrued prior to termination.
5. Agency. Trans Voice and its Subcontractor and their employees and
representatives shall have no authority to enter into any agreement or binding
commitment on behalf of the Company. Nor shall Trans Voice or its Subcontractor
or any of their employees or representatives represent or hold themselves out as
having such authority. In addition, neither Trans Voice or Subcontractor or any
of their representatives or agents make any representation or warranty relating
to this the Company or its products or make any statement inconsistent with
Company's public announcements, its literature, or any explicit instruction
given to Trans Voice or Subcontractor
6. Independent Contractor. Neither Trans Voice or Subcontractor will be
deemed to be, a co-venturer or partner or an employee of Epixtar, and nothing in
this Agreement will be construed so as to make them, a co-venturer or partner or
employee of the Epixtar. Trans Voice agrees to perform its duties hereto as an
independent contractor and will cause Subcontractor to do so. Nothing contained
herein shall be considered to create the relationship of employer-employee
between the parties to this Agreement.
7. Subcontractor Responsibilities. Provided payments have been made
hereunder, Trans Voice and Subcontractor shall at their expense be responsible
for the payment of salary or fees of all persons required to perform its
services hereunder and for the payment of all other expenses incurred in
performing its obligation hereunder, including but not limited to payment of all
required withholding taxes and benefits for their personal.
8. Reports and Coordination. Trans voice shall report to management of
the Company upon all aspects of the Subcontractor's services and render such
reports as requested by the Company. Periodically, the Company may request
meetings to discuss its services and coordinate its efforts with management
Specifically, Trans Voice shall keep the Company advised of the
progress of all potential agreements, which may be presented as a result of
Subcontractor's Services.
9. No Liability. Except for its gross negligence for failure to
supervise the Subcontractor, Trans Voice shall have no liability the Company for
any liability arising from the acts of Subcontractor. Except for the gross
negligence of Trans Voice or its failure to pay any amount due Subcontractor
which were advanced to the Company to Trans Voice, the Company shall indemnify
and hold Trans Voice harmless from all liability arising out of this agreement
or any arrangement with the Subcontractor.
10. Notices. All notices, demands, requests, consents, approvals or
other communications (each of the foregoing, a "Notice") required or permitted
to be given hereunder or pursuant hereto or that are given with respect to this
Agreement to either/any party hereto shall be in writing and shall be (a)
personally delivered, (b) sent by both registered or certified mail, postage
prepaid and return receipt requested, and regular first class mail, (b) sent
both by facsimile transmission with receipt of transmission confirmed
electronically or by telephone and by regular first class mail, (c) sent by
telegram or telex or (d) sent by reputable overnight courier service with
charges prepaid and delivery confirmed, to the intended recipient at its
respective address as set forth below or such other address given by notice
hereby:
if to Trans Voice:
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
if to Epixtar:
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Any Notice delivered or sent as provided above shall be deemed given when so
delivered or sent and shall be deemed received (a) when personally delivered,
(b) three (3) business days after being mailed as above provided, (c) when sent
by facsimile transmission as above provided, (d) when sent by telex or telegram
as above provided or (e) one (1) Business Day after being sent by courier as
above.
11. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein, constitutes the entire agreement
of the parties with respect to the subject matter hereof and supersedes, and
merges herein, all prior and contemporaneous negotiations, discussions,
representations, understandings and agreements between the parties whether oral
or written, with respect such subject matter. No representation, warranty,
restriction, promise, undertaking or other agreement with respect to such
subject matter has been made or given by any party hereto other than those set
forth in this Agreement.
12. Amendment and Waiver. This Agreement may be amended, modified or
supplemented only to the extent expressly set forth in writing that is signed by
the party to be charged therewith and that sets forth therein that its purpose
is to amend, modify or supplement this Agreement or some term, condition or
provision hereof. No waiver of any term, condition or provision of this
Agreement or of any breach or violation of this Agreement or any provision
hereof shall be effective except to the extent expressly set forth in writing
that is signed by the party to be charged therewith.
13. Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations hereunder may not be assigned or delegated by a
party without the prior written consent of the other party, provided that Trans
Voice may assign or delegate its rights, duties and obligations hereunder to any
of its affiliates. Except as provided in the immediately preceding sentence, any
purported assignment or delegation made without the prior written consent of
each of the other parties hereto shall be null and void and of no effect. This
Agreement and the provisions hereof shall be binding upon and enforceable by or
against each of the parties hereto and its respective estate, heirs, executors,
administrators, legal representatives, successors and assigns. Except as
expressly provided for in this Agreement, this Agreement is not intended to
confer my rights or benefits on any Persons other than the parties hereto and
their respective estate, heirs, executors, administrators, legal
representatives, successors and permitted assigns.
14. Severability. It is the parties' intent that this Agreement and
each term and provision hereof be enforceable in accordance with its terms and
to the fullest extent permitted by law. Accordingly, to the extent any term or
provision of this Agreement shall be determined or deemed to be valid or
unenforceable, such provision shall be deemed amended or modified to the minimum
extent necessary to make such provision, as so amended or modified, valid and
enforceable.
17. Survival. Notwithstanding anything to the contrary contained
herein, this Section 3, 7 and 9 of this Agreement shall survive the expiration
or earlier termination (for any reason whatsoever) of this Agreement or any
breach of this Agreement.
18. Further Assurances. Each party hereto, upon the [reasonable]
request of any [the] other party hereto, shall do and perform all such further
acts (including, without limitation, applying for and obtaining such licenses,
permits, consents, approvals, exemptions and authorizations by or from, and
giving such notices to, and making such filings with, any Governmental Authority
or any other Person as may be necessary or appropriate to facilitate the
consummation of the transactions contemplated hereby and executing, and
delivering all such further instruments and documents as may be necessary or
desirable to carry out, evidence and reflect the transactions contemplated
hereby or otherwise carry out and perform the provisions of this Agreement
19. Titles and Headings; Rules of Interpretation. Titles, captions and
headings of the sections, articles and other subdivisions of this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement. References to Sections and
Articles refer to sections and articles of this Agreement unless otherwise
stated. Words such as "herein," "hereinafter," "hereof," "hereto," "hereby" and
"hereunder," and words of like import, unless the context requires otherwise,
refer to this Agreement including attachments hereto taken as a whole and not to
any particular Section, Article or other provision hereof. As used in this
Agreement, the masculine, feminine and neuter genders shall be deemed to include
the others if the context requires, and if the context requires, the use of the
singular shall include the plural and visa versa.
20. Consent to Jurisdiction. This Agreement shall be governed by,
interpreted under and construed in accordance with the internal laws of the
State of Florida applicable to contracts executed and to be performed wholly in
that State without giving effect to the choice or conflict of laws principles or
provisions thereof. Each of the parties hereto agrees that any dispute under or
with respect to this Agreement shall be determined before the state or federal
courts situated in the City of Miami, County of Dade and State of Florida, which
courts shall have exclusive jurisdiction over and with respect to any such
dispute, and each of the parties hereto hereby irrevocably submits to
the jurisdiction of such courts.
IN WITNESS WHEREOF, Trans Voice and Epixtar have executed this Agreement
as of the day and year first above written.
TRANS VOICE L.L.C.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President
EPIXTAR CORP.
By. /s/ XXXXXXX XXXXXXXXXX
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Name: XXXXXXXX XXXXXXXXXX
-----------------------------
Title: CFO
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Schedule I
A. Subject to the supervision of Epixtar
1. Manage existing vendor relationships for stability of Internet sales
campaigns
2. Grow existing vendor relationships for capacity scaling of Epixtar's BPO
business
3. Manage site selection, lease negotiations, design and build-out of
Epixtar's offshore call centers
4. Negotiate favorable incentive and financial assistance packages with
government ministries and agencies on behalf of Epixtar
5. Identify commercial opportunities for Epixtar to sell BPO services
6. Develop new products for Epixtar to market through in house and outsourced
telemarketing
7. Identify and negotiate opportunistic merger and acquisition situations for
Epixtar
B. Participate in the (i) review and editing of Epixtar's written business plan
and (ii) presentation of Epixtar's business plan to brokers and investors as
required by Epixtar's chairman
C. Assign qualified person acceptable to to Epixtars chief executive officer to
perform duties of Principal Corporate Strategist for Epixtar
