STRATIGIC PARTNERSHIP - JOINT EFFORT AGREEMENT
This Agreement is made on September 30, 1997 by and between American ATM Corp
("ATM") a Florida corporation having a principal place of business at 0000 X.
Xxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx, and Atlantic International Entertainment,
Ltd., ("Atlantic") a Delaware corporation having a principal place of business
at 000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
WHEREAS, ATM is in the business of providing ATM terminals and service to retail
and other establishments;
WHEREAS, Atlantic is in the business of developing and licensing interactive
Internet software and business applications and services products intended for
use by commercial interests including but not limited to webSports, ICE and
ecashLink; and
WHEREAS, ATM and Atlantic wish to cooperate jointly to facilitate the marketing
and sale of each others' products and services.
NOW, THEREFORE, in consideration of the promises and covenants recited below, it
is hereby agreed by and between ATM and Atlantic as follows:
1. Definitions.
1.1. Product and Services. "Product and Services" as used herein shall mean the
products and services of Atlantic and ATM as described above.
1.2. Joint Effort. "Joint Effort" as used herein shall mean the cooperative,
joint effort of ATM and Atlantic, subject to the terms and conditions of this
Agreement, to jointly market, sell or otherwise exploit the Products and
Services of each other.
1.3. Term "Term" as used herein shall mean the period beginning on the date
hereof and ending on the date that is Two (2) years from the date thereof,
unless terminated earlier, or renewed as specified below. Either party may
terminate this Agreement by providing written notice of its desire to terminate
at least 60 days prior to the end of the Term. Unless so terminated, the
Agreement shall be automatically renewed for additional and successive periods
of one year.
1.4 Territory. "Territory" as used herein shall mean the world.
2. Responsibilities.
2.1 ATM's Responsibilities; Disclaimer. ATM shall also provide to Atlantic,
sales leads for potential customers of their Products and services, which become
known to ATM.
2.2. Atlantic's Responsibilities. Atlantic, shall develop, market and sell their
Products to its customers in the Territory at it discretion. When proposing an
ATM service to a customer in the territory, Atlantic shall notify ATM in writing
of the identity and location of the customer, and such other details as are
requested by ATM in order to facilitate the timely pricing and provision of the
Services required.
2.3. Expenses. Each party shall be solely responsible for all of the expenses of
carrying out its own obligations hereunder. The foregoing includes without
limitation, staffing needs, office space, travel expenses, lodging, document
production, and costs of producing marketing materials.
3. Trademarks.
3.1 Ownership. Each party acknowledges that the trademarks owned by the other
are their sole property and agrees not to use or authorize any third party to
use the trademarks, except as approved in advance in writing by the other party.
3.2. Quality Standards. Where approved each party shall use the trademarks only
in the logotype specified by the other.
4. Covenant Not To Compete.
In recognition of the promises and convenants set forth in this Agreement and
considering that this Agreement is a condition to the marketing and sale of
Products from which the parties will derive substantial benefits, each party
covenants and agrees that for the Term of this Agreement, and for a period of
one year thereafter, it shall not, and shall cause its employees, officers and
shareholders not to, directly or indirectly:
(a) engage in, hold any interest in, or provide advice, act as a consultant or
render any services to, any person, corporation, partnership or other business
entity which is currently engaged in or has plans to engage in (including
without limitation any promotional or marketing activities) the business of
developing, marketing, promoting or otherwise exploiting products which are
directly competitive with any Products produced hereunder; or
(b) solicit a business relationship with any person, corporation, partnership or
other business entity which is, at the time of such solicitation, currently
engaged in or currently has plans to engage in (including without limitation,
any promotional or marketing activities), the business of developing, promoting
or otherwise exploiting products which are directly competitive with any
Products produced hereunder.
5. New and Other Initiatives; Confidentiality.
5.1 New Initiatives. The Parties anticipate that during the Term of the
Agreement, they will, from time to time, discuss and exchange with each other
ideas, concepts or information to be used in connection with the creation or
development of possible future Products or other new initiatives, ventures or
products not contemplated by this Agreement. The Parties agree that this
Agreement is in no way intended to limit such discussions or exchanges and that
such ideas, concepts or information referred to in the previous sentence shall,
without limitation, except as set forth in Section 5.2, constitute Confidential
Information (as defined herein). Current discussions include:
(a) Internet ATM transactions and parties agree to revenue sharing
of 50-50 less the actual coats paid to outside sources for
transaction charges.
(b) Parties agree to a tax free exchange of $250,000 unregistered
common stock at today's closing price.
5.2 Confidentiality. The Parties will each regard and preserve as strictly
confidential all information and material, including without limitation,
customer or client Information, provided to one another in connection with the
Joint Effort (hereinafter, "Confidential Information"). The Parties agree that,
except as provided in this Agreement or as otherwise agreed between them in
writing, they shall not use the Confidential Information for their own benefit
or for the benefit of any third party. The Parties further acknowledge and agree
that, in the event of a breach or threatened breach of this Section 5.2, the
non-breaching party may have no adequate remedy in money damages, and
accordingly, may be entitled to appropriate injunctive relief against such
breach. The Parties agree that they each will have no obligation in connection
with specific Confidential Information of the other to the extent, but only to
the extent that such Confidential Information is already known to them, free
from any obligation to keep such Confidential Information confidential at the
time it is obtained from the other party; such Confidential Information is or
becomes publicly known in the trade or otherwise through no wrongful act of the
receiving party; or such Confidential Information is rightfully received by the
receiving party from a third party without restriction and without breach of
this Agreement. Upon the request of either of the Parties following the
completion of the Joint Effort, or upon termination or expiration of this
Agreement as otherwise provided herein, all tangible copies of any Confidential
Information of the Parties will be returned to one another.
6. Warranties and Representations.
6.1 Atlantic Warranties and Representations. Atlantic warrants and
represents to ATM that:
a) Atlantic has the right, power and authority to enter into this Agreement, to
fully perform all of its obligations hereunder;
b) no aspect of the Products shall contain any libelous material or any material
which constitutes an invasion of any right of privacy or publicity or infringes
upon any trademark, copyright, trade secret or other intellectual property
right;
c) Atlantic has not entered into any separate agreement or arrangement with any
third party that is inconsistent with any of the rights herein granted to ATM;
and
d) Atlantic will not, during the Term of this Agreement or at any time
thereafter, attach, dispute, or contest, directly or indirectly, the validity of
ATM'S copyrights, trademarks, and service marks or design patents, nor will
Atlantic assist or aid others to do so.
6.2 ATM Warranties and Representations. OzEmail warrants and represents to
Atlantic that:
a) ATM has the right, power and authority to enter into this Agreement, and to
fully perform all of its obligations hereunder;
b) ATM has not entered into any separate agreement or arrangement with any third
party that is inconsistent with any of the rights herein granted to Atlantic;
and
c) ATM1 will not, during the Term of this Agreement or at any time thereafter,
attach, dispute, or contest, directly or indirectly Atlantic's exclusive right
and title to the Products or the validity of Atlantic's copyrights, nor will ATM
assist or aid others to do so.
7. Indemnification.
7.1 Indemnification by ATM. ATM shall indemnify, defend and hold Atlantic
harmless from any claims, demands, liabilities, losses, damages, judgements or
settlements, including all reasonable costs and expenses related thereto
including attorney's fees, directly or indirectly resulting from any claimed
infringement or violation of any copyright, patent or other intellectual
property right with respect to their Products and Services, so long as the are
used in accordance with this Agreement and any documentation or specifications
provided by ATM.
7.2 Indemnification by Atlantic. Atlantic shall indemnify, defend and hold ATM
harmless from any claims, demands, liabilities, losses, damages, judgments or
settlements, including all reasonable costs and expenses related thereto
including attorney's fees, directly or indirectly resulting from any claimed
infringement or violation of any copyright, patent or other intellectual
property right with respect to their Products and Services, so long as the are
used in accordance with this Agreement and any documentation or specifications
provided by Atlantic.
8. Limitations of Liability.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER OF THE PARTIES SHALL IN ANY
CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, OR OTHER THAN AS SET
FORTH HEREIN, FOR CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY FOR ANY CAUSE
WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT,
INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, WITH THE EXCEPTION OF INDEMNIFICATION
OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S LIABILITY HEREUNDER EXCEED
$5,000.00 DOLLARS.
9. Termination
9.1 Termination in the Event of Material Breach. In the event of a material
breach of this Agreement, the non-breaching party may terminate this Agreement
by giving thirty (30) days after the breaching party receives such notice if the
breaching party has cured the breach before the end of such thirty (30) day cure
period.
9.2 Additional Termination Rights. In addition to other termination rights set
forth herein, either party may terminate this Agreement.
(a) if the other party is declared insolvent or bankrupt;
(b) if a petition is filed in any court and not dismissed in ninety (90) days to
declare the other party bankrupt or for a reorganization under the Bankruptcy
Law or any similar statute; or
(c) if a trustee in bankruptcy or a receiver or similar entity is appointed for
the other party.
10. General
10.1 Independent Contractor. The parties agree that each is an independent
contractor and will not be entitled to compensation for its services except as
provided herein. Nothing contained herein will be construed to constitute the
parties as partners or join ventures or constitute either party as agent of the
other, nor will any similar relationship be deemed to exist between them.
10.2 Entire Agreement. This Agreement, including any attachments, sets for
the entire agreement between the parties in connection with the subject matter
hereof and it incorporates, replaces, and supersedes all prior agreements,
promises, proposals, representations, understandings and negotiations, written
or not, between the Parties. The making, execution and delivery of this
Agreement have been induced by no representations, statements, warranties or
agreements other than those expressed herein.
10.3 Force Majeure. Neither party will be liable for any delay or failure
to perform under this Agreement if, and to the extent, such failure is
reasonably beyond the control excusable delay must promptly notify the other
party of such delay. The party claiming excusable delay must promptly notify the
other party of such delay. Except as set forth herein, if the delay continues
for more than thirty (30) days and involves a material obligation, the party not
claiming excusable delay may terminate this Agreement by giving fourteen (14)
calendar days written notice to the other party provided that the Agreement will
not terminate if the party claiming excusable delay substantially performs the
obligation which has been delayed within fourteen (14) days after receipt of
such termination.
10.4 Notice. All notices will be in writing and will be delivered
personally or sent by confirmed facsimile transmission, overnight letter or
United States certified mail, proper postage prepaid at the addresses specified
below:
If to ATM at: American ATM Corp
0000 X. Xxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx
Attention: Mori Xxxxx Xxxxxxxxxx, President
Fax: 0-000-000-0000
If to Atlantic at: Atlantic International Entertainment, Ltd.
000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax:0-000-000-0000
Either party may change the person or the addresses to which notices are
directed by giving written notice to the other party. Personally delivered or
confirmed facsimile notices will be deemed given when delivered. Notices sent by
United States certified mail, return receipt requested, will be deemed given
four (4) business days after dispatch. Notices sent by overnight letter will be
deemed given on the next business day after dispatch. Notwithstanding the
foregoing, notices of change of address will be deemed given only upon receipt
by the party to whom it is directed.
10.5 Choice of Law. This Agreement has been entered into in the State of Florida
and will be governed by those laws of the State of Florida, which are applicable
to contracts entered into and performed entirely within the State of Florida
without regard to conflict of law principles. Any disputes, which arise under
this Agreement, even after the determination of this Agreement, that cannot be
resolved through good faith discussions, will be heard only In the State or
Federal Courts located in Palm Beach County, Florida, jurisdiction, venue or
authority of any court sitting in the State of Florida.
10.6 Modification. No modification, amendment, supplement to or waiver of any
provision of this Agreement shall be binding upon the Parties hereto unless made
in writing and duly signed by both Parties.
10.7 Waiver. A failure of either Party to exercise any right provided for herein
shall not be deemed to be a waiver of any right hereunder.
10.8 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement. Any unenforceable provision will
be replaced by a mutually acceptable provision, which comes closest to the
intention of the Parties at the time the original provision was agreed upon.
10.9 Headings. The headings in this Agreement are for the purpose of reference
only.
10.10 Attorneys' Fees. In the event of the bringing of any action, insolvency
proceedings or bankruptcy suit by a party hereto against the other party
hereunder, or by reason of any breach of any representation, warranty or
condition on the part of the other party, arising out of or relating to this
Agreement, then the party whose favor the final judgment or award shall be
entered shall be entitled to have and recover from the other party the costs and
expenses incurred in connection therewith, in addition to its reasonable
attorneys' fees, at all trial and appellate levels.
10.11. Non-Solicitation. Neither party shall solicit for employment, or hire the
other's current or future employees, either directly or indirectly, during the
Term of this Agreement, without obtaining the other's prior written consent.
10.12.Non Assignment. This Agreement is non-assignable by either party.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of
_____________________.
Atlantic International Entertainment, Ltd. American ATM Corp.
By: By: /s/ Mori Xxxxx Xxxxxxxxxx
--------------------------------------- -------------------------------
Xxxxxxx Xxxxxxx, President Mori Xxxxx Xxxxxxxxxx, President
Xxxxxx X. [ILLEGIBLE]
Xxxxxx X. [ILLEGIBLE]
Sec/Treasurer
