EXHIBIT 10.3
XXXXX BUSINESS COMMUNICATION SERVICES AGREEMENT
This Agreement, dated June, 12, 2000 is by and between XXXXX BUSINESS
COMMUNICATION SERVICES, a division of XXXXX NORTH AMERICA, INC., a Delaware
corporation, with offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx
00000-0000 ("Xxxxx"), and iTract, LLC, a Delaware limited liability company,with
offices at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 ("Client").
1. PRODUCTS AND SERVICES. Upon the terms and conditions of this Agreement,
Xxxxx shall provide to Client, and Client shall purchase from Xxxxx,
those Products and Services referenced in the attached Schedule B. Any
additional Services or Products will be furnished subject to
availability of facilities and/or personnel at Xxxxx'x standard rates
in effect at the time and in accordance with any special terms that may
be applicable.
2. TERM. This Agreement is effective upon execution by both parties and
shall continue for two (2) years from the date hereof, unless earlier
terminated pursuant to any applicable provisions herein. Thereafter,
this Agreement shall automatically be renewed for one-year periods
unless either party elects to terminate this Agreement by giving
written notice to the other party at least ninety (90) days prior to
the expiration of the initial or any renewal term.
3. PRICING; INVOICING.
(a) The prices for the Products and Services are set forth in
Schedule X. Xxxxx reserves the right to adjust all prices in
as set forth in the attached Schedule B. Any price adjustment
provided herein or in Schedule B shall be mutually agreed upon
a quarterly basis (90 days), and shall be effective upon
thirty (30) days prior written notice to Client.
(b) Client shall reimburse Xxxxx for the cost of all sales taxes
and other taxes or fees applicable to the production, sale,
use, storage, delivery or transportation of the Products and
Services .
(c) In case of a shipment of Products, the delivery will be F.O.B.
Xxxxx'x facility.
(d) Payment terms are "Due upon Receipt" of the invoice. Monthly
Summary Billing Terms are "Due upon Receipt" of the invoice.
(e) Whenever any payment is not made when due, Client shall pay
interest at the rate of one (1) percent per month. Client
shall reimburse Xxxxx for all costs incurred by Xxxxx
(including reasonable attorney's fees) if Xxxxx commences
collection efforts with respect to this Agreement, provided
that Xxxxx has delivered written notice to Client of
non-payment and, following 30 days of receipt of notice,
Client has neither cured, nor taken reasonable steps to cure,
such non-payment.
4. TIME OF PERFORMANCE AND DELIVERY.
(a) All dates for performance by Xxxxx, including the mailing,
shipment or delivery of Products are based upon Xxxxx'x best
estimates. In no event shall Xxxxx be liable for any delay in
the performance or delivery of any Service or Product or any
other default due to the failure by Client to timely provide
information and any other items as are required by Xxxxx to
perform its obligations or also due
to occurrences or contingencies, considered "force majeure"
including but not limited to war, acts of God, natural
disasters, flooding, fire; or any other circumstances beyond
Xxxxx'x reasonable control which shall prevent Xxxxx from
performing in the normal and usual course of its business.
(b) If Client fails to provide correct and complete data in
accordance with mutually agreed time schedules, if any, Xxxxx
will use its reasonable efforts to reschedule and process
Client's work as promptly as possible and shall notify Client
of the new estimated schedule. Client agrees to extend such
time schedules for this purpose and to pay all expenses of
Xxxxx which resulted from Client's failure to timely provide
data.
(c) Project management and technical support of services provided
will be further defined in the "postal solution" Statement Of
Work(SOW)to be mutually agreed upon and developed in
conjuction with version 1.1 of the Client's website.
5. CLIENT DATA; PROPRIETARY RIGHTS.
(a) All data furnished by Client pursuant to this Agreement shall
at all times remain the property of Client, and be in the form
requested by Xxxxx. Xxxxx shall not be responsible for loss or
destruction of Client data, or material unless due to the
negligence of Xxxxx, and Xxxxx'x liability is limited to
restoring same provided such restoration can be reasonably
performed by Xxxxx and Client provides Xxxxx with all source
data in readable form for such restoration, it being presumed
conclusively that any data delivered to Xxxxx has been backed
up by duplicate material retained by Client. Xxxxx shall have
the right to copy and retain all such material for its files
as it deems necessary for internal processing use only.
(b) Client accepts sole responsibility for the accuracy and
adequacy of all data, and other items provided by it to Xxxxx.
Client specifically accepts sole responsibility for the
accuracy and adequacy of all changes to recorded data which
are requested or directed by Client, whether in writing or by
telephone. Xxxxx shall not be responsible for errors or
omissions resulting from the inaccuracy or defect in any
Client-supplied data or materials. Client will pay Xxxxx, at
its standard rates in effect at the time, for any processing
reruns or any other additional work performed by Xxxxx due to
Client submitting improper data or materials which are
incorrect or incomplete. All data and materials supplied by
Client shall be returned by Xxxxx upon completion of use by
Xxxxx and all copies of such data and materials, in whatever
form or medium contained, shall be destroyed or deleted.
(c) All information, programs, software, artwork, films, molds,
plates, dyes, negatives, positives and all other items,
machinery or materials furnished, developed, or created by
Xxxxx in providing the Products and Services shall remain
Xxxxx'x exclusive property. All material provided to Xxxxx by
the Client shall remain the property of the Client.
6. CONFIDENTIAL INFORMATION.
(a) Xxxxx shall not permit unauthorized access to and to take
reasonable steps to protect the confidentiality of Client's
data and resultant output . Xxxxx shall not provide, and it
shall prevent its affiliates and other subsidiaries and
divisions of its parent (collectively, "Related Parties") from
providing, such data and output to any other parties,
including, without limitation, other clients of Xxxxx or
clients of Related Parties. Client shall treat as confidential
information all processes and machinery observed at Xxxxx'x
facilities. All lists provided to Xxxxx by Client are the sole
property of Client. All materials and data used or furnished
by Xxxxx pursuant to this Agreement are the sole
property of Xxxxx and shall be kept confidential by Client.
Such materials and data have been developed at great expense
and contain trade secrets of Xxxxx. Neither party shall be
required to keep confidential any information or data which is
or becomes publicly available, is already known or is
independently developed by such party outside the scope of
this Agreement, or is rightfully obtained by third parties.
(b) Client acknowledges that Xxxxx is not obligated to provide
printing, mailing and other Xxxxx services to Client hereunder
on an exclusive basis and that nothing contained in this
Agreement shall be construed to prohibit Xxxxx from providing
printing, mailing and other services to any other party,
including without limitation, competitors of Client.
Furthermore, Client acknowledges that Xxxxx, alone or in
conjunction with one or more third parties, may be developing
(or in the future may develop) business initiatives that may
potentially be similar to or competitive with the business
initiatives of Client and that nothing contained in this
Agreement shall be construed to prohibit Xxxxx from so
developing such business initiatives. The foregoing shall not
relieve Xxxxx of any of its confidentiality obligations set
forth in this Agreement.
7. WARRANTIES.
(a) Xxxxx warrants that the Products are free from defect in
material and workmanship and conform substantially to any
specifications provided to Client. Xxxxx does not warrant that
its Products are fit, legally or otherwise, for their intended
purpose or use. Xxxxx at its option, shall replace or rework
any defective Products or return the portion of the purchase
price applicable to the defective Products.
(b) Xxxxx shall use due care in processing all data submitted to
it and in performing and providing the Services. Data will be
processed in accordance with the statemment of work and
mutually agreed upon work flow. If computer services are
interrupted or delayed for any reason, Xxxxx will resume the
computer services as soon as reasonably practical. In the
event that errors or omissions in computer services are the
direct fault of Xxxxx, Xxxxx will correct any errors of which
Xxxxx receives timely notice following detection of such error
or omission. Where correction is impossible or impractical,
Client shall be entitled to a refund for that portion of the
computer services or Products which contain the errors.
(c) Xxxxx warrants that to the best of its knowledge no portion of
the proprietary hardware or software that it uses to provide
the Services and Products contains either any programs that
self-replicate without manual intervention, instructions
programmed to activate at a pre-determined time or upon a
specified event, and/or programs purported to do a meaningful
function but designed for a different function (i.e.,
malicious or disabling code) so that, as a result of the
Services and Products provided by Xxxxx pursuant to this
Agreement, such malicious or disabling code can migrate to
Client's computer software programs.
(d) THE FOREGOING COMPRISES XXXXX'X SOLE AND ENTIRE WARRANTY. ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND INCLUDING BUT NOT
LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
8. INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) Subject to the limitations set forth in paragraph (b) below,
each party hereby indemnifies and holds the other party
harmless from and against any and all claims, demands, causes
of action, or suits of any kind or nature, including
reasonable attorneys' fees and cost of litigation, solely and
directly based on or arising from actions, failure to act,
representations or omissions, of the indemnifying party, and
its employees, agents, or authorized assigns.
(b) Xxxxx'x maximum liability for any and all claims arising
directly or indirectly from the performance of its obligations
herein, whether resulting from Xxxxx'x negligence or
otherwise, shall not in the aggregate exceed the purchase
price of the Products and Servicesaffected. Xxxxx shall be
without liability to Client with respect to anything done or
omitted to be done, in accordance with the terms of this
Agreement or instructions properly received pursuant hereto,
if done in good faith and without negligence or willful or
wanton misconduct. UNDER NO CIRCUMSTANCES SHALL XXXXX BE
LIABLE TO CLIENT OR ANY THIRD PARTY FOR A LOSS OF BUSINESS OR
PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES.
9. TERMINATION. Xxxxx shall have the right to immediately suspend
performance by it or otherwise terminate all or any part of this
Agreement in the event the Client fails to pay any amount to Xxxxx when
due. Either party shall have the right to terminate this Agreement: (a)
In the event of the failure by either party to perform any of its
obligations herein (excluding payment obligations described in Section
3(e) hereof) if such failure is not corrected after written notice by
the non-breaching party providing the other party with thirty (30) days
to cure such default; or (b) In the event the other party is declared
insolvent or bankrupt or makes an assignment for the benefit of
creditors or a receiver is appointed or any proceeding is demanded for
or against the other under any provisions of applicable bankruptcy law;
Client also agrees to pay for uninvoiced work and Services performed
through termination of the Agreement, provided such work is not
performed following receipt by Xxxxx of a written request by Client to
stop work.
Upon the expiration or earlier termination of this Agreement, Xxxxx
shall deliver to Client any and all remaining Products, completed or in
process, in Xxxxx'x possession and any raw materials specifically
produced or acquired in connection with this Agreement. Xxxxx shall
issue a final invoice for all such items which shall be paid by Client
in accordance with this Agreement.
10. DISPUTES RESOLUTION. In the event a dispute arises between Xxxxx and
Client relating to this Agreement, prior to either party pursuing other
available remedies: (a) a meeting regarding the dispute shall be held
promptly by the parties, to be attended by representatives with
decision-making authority, to attempt in good faith to negotiate a
mutually acceptable resolution of the dispute; (b) if, within thirty
(30) days after the first day of such meeting the parties have not
successfully concluded a resolution, then the parties shall promptly
use their best efforts to select or devise an alternate dispute
resolution procedure ("ADR") to resolve the dispute; (c) if the parties
are unable to agree upon a form of ADR within fifteen (15) days of
commencement of discussions on the subject, then either party may
pursue other remedies available to it upon seven (7) days written
notice to the other party of its intent to do so. If the parties are
able to agree upon a form of ADR, they shall pursue implementation of
the ADR in good faith and in a timely manner. Should the ADR not result
in a final resolution of the dispute then either party may pursue other
available remedies upon seven (7) days written notice to the other
party.
11. ADDITIONAL PROVISIONS. (a) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. Neither party shall assign or otherwise
transfer this Agreement without the prior express written consent of
the other party, such consent not to be unreasonably withheld, delayed
or
conditioned. Xxxxx hereby reserves the right, in its sole discretion,
to subcontract any portion or all of this Agreement; (b) All notices
and requests in connection with this Agreement shall be in writing and
deemed given as of the day deposited in the U.S. mails, postage
pre-paid, certified or registered, return receipt requested; (c) This
Agreement and the Confidentiality Agreement dated March 28, 2000
between the parties hereto, supersedes and merges all prior proposals,
understandings and agreements, oral and written, between the parties
relating to the subject matter of this Agreement and may not be
modified or altered except by written instrument duly executed by both
parties. By signing this Agreement, Client agrees that this Agreement
exclusively governs and controls the rights of the parties so that any
purchase order or other writing (excluding a legal notice delivered by
the Client pursuant to the terms hereof) Client may submit to Xxxxx
shall only be for Client's convenience. If any provision of this
Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall
in no way be affected or impaired thereby; (d) Subject to the
provisions of Section 3(e) hereof, Xxxxx reserves the right at any time
to alter or suspend credit or to change any credit terms when, in its
sole discretion, the financial condition of Client so warrants. In any
such case, Xxxxx may require cash payment or additional security from
Client before further production or shipment, may accelerate the date
of any payment, and may suspend production, withhold any shipment, or
cancel any further production in addition to any other rights or
remedies it may have pursuant to applicable law; (e) This Agreement
shall be governed by the internal laws of the State of Illinois.
(Signatures on following page)
IN WITNESS WHEREOF, the parties hereto have signed this Agreement the day and
year first above written by their duly authorized representative.
XXXXX BUSINESS COMMUNICATION SERVICES Client: ITRACT, LLC
A DIVISION OF XXXXX NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxx Xxxxxxx
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(Print) (Print)
Title: Vice - Pres. Finance Title: EVP
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Date: June 30, 2000 Date: 6/26/2000
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