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EXHIBIT 10.8
AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT (the "Agreement") is entered into as
of the _____ day of November, 1997, by and between REGISTRY MAGIC CORPORATION
(hereinafter "Registry"), a Florida corporation with its principal offices at
Xxx Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 and PHONE
INTERACTIVE CORP. (hereinafter "Phone Interactive"), a Florida corporation with
offices at 000 X. Xxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Phone Interactive is engaged in the telephone service bureau
business and possesses both the requisite technical capabilities and
telecommunications equipment that enables its customers, among other
communications services, the ability to call receive multiple inbound calls from
#800 and #900 lines, process responses to automated prompts and/or re-direct
such calls to other third parties through its switching system; and,
WHEREAS, Registry is engaged in automated speech recognition business
and possesses the requisite technical capabilities, personnel and equipment that
enables its customers, among other communications services, to provide automated
operator services through its Virtual Operator product, and automated voice
dialing services through its MagicDialing product; and,
WHEREAS, Phone Interactive and Registry desire, from time to time, to
refer marketing and sales leads to each other, and/or jointly cooperate in
offering certain industry solutions (hereinafter "Alliances") by combining their
respective services in accordance with the terms of this Agreement and the
supplements to this Agreement (hereinafter "Alliance Supplements") entered into
from time to time.
NOW, THEREFORE, in consideration of the foregoing premises and the
promises herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties,
Registry and Phone Interactive, intending to be legally bound, hereby agree as
follows:
SECTION 1. BUSINESS GOALS
(a) Establishing a flexible, reliable product development and
service delivery process to ensure timely delivery of
defect-free services in quantities consistent with the
up-to-the-minute needs of the marketplace.
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(b) Achieving continuous total-cost reductions through improved
production, management, staffing, and administrative
efficiencies and design improvements.
(c) Allowing a reasonable return for work done by both parties
while reducing both parties' costs and increasing value to the
customer. Cost savings achieved by improved design,
procedures, and materials will be reflected by price
adjustments.
(d) Establishing an aggressive lead-time reduction plan for
continuous reduction in engineering, production, and purchase
lead time.
(e) Adopting and using communication and documentation procedures
and formats (including fax and E-mail) compatible with each
company's development, logistics, and systems strategy to save
time and avoid unnecessary paperwork.
(f) Working with our suppliers and service contractors to obtain
constant improvement in their processes to meet our mutual
goals.
(g) Providing technical documentation and technical assistance as
reasonably required to assist each other to perform their
duties reliably and on time.
(h) Working together on long-term development and marketing
strategies to increase product and service sales volumes.
(i) Meeting at least once every month to review, on both a general
and a specific basis, the mutual progress and results against
these stated goals.
SECTION 2. PROCEDURES
2.1 The specific terms and conditions of each Alliance Supplement will
be in writing, signed by each party hereto or electronically transmitted with
authorized identification. A guideline for each Alliance Supplement is attached
hereto as Exhibit A. In the absence of conformity with Exhibit A, each Alliance
Supplement will contain at a minimum the following:
(a) Scope of work, including responsibilities of each party. Where
appropriate, the parties may agree to refer to Specifications
for work and deliverable content.
(b) Terms of reimbursement of materials and/or labor, if
applicable.
(c) Pricing of Alliance Offering.
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(d) Quantity and delivery commitments.
(e) Loans or sharing of equipment of facilities.
(f) Division of fixed and variable costs.
(g) Payment terms and division of revenues
(h) The lead party in the transaction (such as, but not limited
to, lead contracting party, focal point for billing and
collection, and lead support function).
2.2 Alliance Supplement, once issued and accepted, will represent the
binding commitment of both parties to perform the work indicated therein, unless
or until terminated or changed by mutual agreement. Both parties understand that
neither is obligated by this Agreement to issue or accept Alliance Supplements.
2.3 Except as specifically agreed and stated in a binding Alliance
Supplement, each party will be responsible for its own costs and expenses.
2.4 Each party will be responsible for obtaining from third parties any
Intellectual Property Rights necessary to complete its performance; to the
extent that products or services are required to be provided by either party,
that party shall be responsible for having and providing the Intellectual
Property Rights needed for the contemplated use or sale of those products or
services.
2.5 Intellectual Property Rights of the parties relating to any joint
works shall be defined in each Alliance Supplement.
2.6 Each party agrees to comply with all applicable federal, state, and
local laws, regulations, and ordinance, including, without limitation, U.S. laws
relating to the export of technical data, machines, and commodities insofar as
they relate to the activities to be performed under this Agreement.
SECTION 3. CONFIDENTIALITY
3.1 The term "Confidential Information" shall mean any and all
proprietary information belonging to any disclosing party, whether tangible or
intangible, written or oral, including, without limitation, any data, products,
inventions, patents, copyrights or trademarks (or any application therefor),
know how, process technique, marketing materials, layouts and campaigns, books
and records, financial information, computer software and files, and lists of
(and information concerning) customers, suppliers, vendors, contractors and
other business relationships. Each of the parties hereto is a "Disclosing Party"
to the extent it provides Confidential Information to the other, as well
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as a "Non-Disclosing Party" to the extent it receives Confidential Information
from the other.
3.2 The term "Trade Secret" shall mean any information, which may not
otherwise be considered Confidential Information, including a formula, pattern,
compilation, program, device, method, technique, or process that (i) derives
independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use; and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
3.3 Registry and Phone Interactive acknowledge that in performing their
respective obligations under this Agreement they may have access to the Trade
Secrets and Confidential Information of the other. Registry and Phone
Interactive each agree that (i) during the term of this Agreement and for so
long as the relevant information remains a Trade Secret of the disclosing party,
it will not use, copy of disclose, or permit any unauthorized person (which
includes any employee of Registry or Phone Interactive unless such use or
disclosure is for purposes specifically related to its respective obligations
hereunder and who is subject to the security and control of Registry or Phone
Interactive, as the case may be) access to, any Trade Secrets of the other party
except for that which is required in performing its obligations under this
Agreement, or (ii) during the term of this Agreement or for a period of three
years after the termination of this Agreement it will not use, copy, disclose,
or permit any unauthorized person access to, any Confidential Information of the
other except in connection with its obligations hereunder. Registry and Phone
Interactive shall take all appropriate action, whether by instruction, agreement
or otherwise to ensure the protection, security, and confidentiality of the
other's Trade Secrets and Confidential Information, and to satisfy their
respective obligations under this Section 3.3. Any data or other materials owned
by a Disclosing Party which it furnishes for use by the Non-Disclosing Party in
connection with the obligations under this Agreement, including other Trade
Secrets and Confidential Information, shall remain the sole property of the
Disclosing Party, shall be held in confidence by the Non-Disclosing Party in
accordance with the provisions of this Section 3.3, and shall be returned to the
Disclosing Party or destroyed by the Non-Disclosing Party and certified as
destroyed to the Disclosing Party upon termination of this Agreement.
3.4 For purposes of this Agreement, Confidential Information shall not
include, and the obligations provided hereunder shall not apply to, information
that: (a) is now or subsequently becomes generally available to the public
through no fault of the Non-Disclosing Party; (b) the Non-Disclosing Party can
demonstrate was rightfully in its possession prior to disclosure by the
Disclosing Party; (c) is independently developed by the Non-Disclosing Party
without the use of any Confidential Information provided by the Disclosing
Party; (d) Non-Disclosing Party rightfully obtained or obtains from a third
party who has the right, without obligation to the Disclosing Party, to transfer
or disclose
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such information; (e) is released or approved for release by the other
Disclosing Party without restriction.
3.5 In the event that either party is requested in any court or
governmental proceeding, or required in connection with any court or
governmental filing, to disclose any Confidential Information furnished to it by
the other party hereto, then the Non-Disclosing Party shall give the Disclosing
Party notice of such request as promptly and as reasonably feasible (but in any
event within three business days from the receipt by the non-disclosing party of
any such request for information), so that the Disclosing Party may seek an
appropriate protective order. If, in the absence of a protective order, the
non-disclosing party (or affiliate, employee, agent or representative thereof)
may nonetheless be compelled to disclose any Confidential Information, it may
disclose such Confidential Information without liability hereunder, and such
disclosure will not be deemed to constitute a breach or other violation of any
provision of this Agreement.
SECTION 4. NOTICES
Any notice under this Agreement shall be deemed given if sent by
courier, facsimile or mail, directed to the principal contact of the party being
notified. The contacts for purposes of all work and business between the parties
concerning this Agreement and all notices required or permitted hereunder shall
be:
For Registry:
Principal Contact: Xxxx Xxxxxxxx
Business Phone: 000-000-0000
(Fax: 000-000-0000)
Business Mailing Address: Registry Magic, Inc.
Xxx X. Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
For Phone Interactive:
Principal Contact: Xxxx Xxxxx
Business Phone: 000-000-0000
(Fax 000-000-0000)
Business Mailing Address: Phone Interactive, Inc.
000 X. Xxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
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SECTION 5. TERM AND TERMINATION
This Agreement is effective as of the date first set forth above, and
shall continue for a period of one (1) year (the "Initial Term"), or until:
(a) Expiration of Agreement Renewal. This Agreement shall
automatically renew for one (1) year terms upon expiration of
the Initial Term. In the event that either party determines
that it will not exercise its option to renew this Agreement
for any renewal term, such party shall provide the other with
no less than sixty (60) days prior written notice of such
non-renewal.
(b) Termination by Phone Interactive. Phone Interactive shall have
the right but not the obligation to terminate this Agreement
if Registry: (i) fails to pay, in full, when due any amounts
for which it is obligated to pay hereunder, provided that
Phone Interactive has given Registry thirty (30) days prior
written notice of such non-payment and the Registry has failed
to make such payment during said thirty (30) day period; or
(ii) fails, is unable or refuses to perform any of the
Registry's material obligations under this Agreement, unless
within thirty (30) days after receipt of written notice of
such default, Registry remedies the default; or (iii) becomes
insolvent or commits any act of bankruptcy, or a petition for
involuntary bankruptcy is filed against Registry, or Registry
makes a general assignment for the benefit of creditors under
the bankruptcy or insolvency laws.
(c) Termination by Registry. Registry shall have the right but not
the obligation to terminate this Agreement if Phone
Interactive: (i) fails to pay, in full, when due any amounts
for which it is obligated to pay hereunder, provided that
Registry has given Phone Interactive thirty (30) days prior
written notice of such non-payment and Phone Interactive has
failed to make such payment during said thirty (30) day
period; or (ii) fails, is unable or refuses to perform any of
Phone Interactive's material obligations under this Agreement,
unless within thirty (30) days after receipt of written notice
of such default, Phone Interactive remedies the default; or
(iii) becomes insolvent or commits any act of bankruptcy, or a
petition for involuntary bankruptcy is filed against Phone
Interactive, or Phone Interactive makes a general assignment
for the benefit of creditors under the bankruptcy or
insolvency laws.
SECTION 6. CONSEQUENCES OF TERMINATION
6.1 Upon any termination of this Agreement, payment shall remain
due for services rendered prior to the effective date of this Agreement's
termination, and
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thereafter all obligations of each party to the other shall cease; however,
notwithstanding any such termination, the provisions of Section 3 shall remain
in effect.
6.2 Alliance Supplements, if any, may contain addition terms relating
to termination and consequences of termination.
SECTION 7. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, OR INTERRUPTION OF BUSINESS, OR FOR ACTS
OF NEGLIGENCE THAT ARE NOT INTENTIONAL IN NATURE, WHETHER SUCH ALLEGED DAMAGES
ARE ALLEGED IN TORT, CONTRACT OR INDEMNITY, EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
SECTION 8. MISCELLANEOUS
8.1 Force Majeure. Either party shall be excused from delays in
performing or from its failure to perform hereunder to the extent that such
delays or failures result from causes beyond the reasonable control of such
party; provided that, in order to be excused from delay or failure to perform,
such party must act diligently to remedy the cause of such delay or failure.
8.2 Agency. No agency, partnership, or other joint relationship is
created by this Agreement. None of the parties hereto has any authority of any
kind to bind any other party hereto in any respect whatsoever, nor shall any
party hereto act or attempt to act, or represent itself, directly or by
implication, as an agent of the other party hereto or in any manner assume or
create, any obligation on the behalf of or in the name of any of the other
party.
8.3 Severability. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions hereof will
not in any way be affected or impaired, provided that the material terms and
intent of this Agreement remain unaffected or unimpaired.
8.4 Multiple Counterparts. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single Agreement
between the parties.
8.5 Section Headings. The section and subsection headings used herein
are for reference and convenience only, and shall not enter into the
interpretation hereof.
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8.6 No Waiver. No delay or omission by either party hereto to exercise
any right or power occurring upon any noncompliance or default by the other
party with respect to any of the terms of this Agreement shall impair any such
right or power or be construed to be a waiver thereof. A waiver by either of the
parties hereto of any of the covenants, conditions, or agreements to be
performed by the other shall not be construed to be a waiver of any succeeding
breach thereof or of any covenant, condition, or agreement herein contained.
8.7 Remedies. The remedies hereunder shall be cumulative and not
alternative and not alternatives; the election of one remedy for a breach shall
not preclude pursuit of other remedies.
8.8 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by and enforced in
accordance with the internal laws, and not the law of conflicts, of the State of
Florida applicable to all agreements made and to be performed in such state. The
parties hereto agree that all actions and proceedings relating directly or
indirectly hereto shall be litigated in any state court or federal court located
in Palm Beach County, and the parties hereto expressly consent to the
jurisdiction of any such courts and to venue therein. In the event of any
litigation arising out of a breach of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees and court costs.
8.9 Entire Agreement. This Agreement and the exhibits attached hereto,
constitute the entire agreement between the parties. No change, waiver, or
discharge hereof shall be valid unless it is in writing and is executed by the
party against whom such change, waiver, or discharge is sought to be enforced.
8.10 Third Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto.
8.11 No Assignment. Neither party shall assign or transfer this
Agreement or any obligation incurred hereunder, except by merger,
reorganization, consolidation, or sale of all or substantially all of such
party's assets. Any attempt to do so in contravention of this Section shall be
void and of no force and effect.
8.12 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the heirs, successors and assigns of the parties hereto.
8.13 Rule of Construction. Both parties acknowledge that the rule of
construction that ambiguities are to be construed against the draftsman is not
to apply to this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
and delivered by their duly authorized officers, all as of the date first
hereinabove written.
PHONE INTERACTIVE CORP. REGISTRY MAGIC, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxxx
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Printed Name: Xxxx Xxxxx Printed Name: Xxxx Xxxxxxxx
------------ -----------------
Title: VP Title: President and CEO
------------------- ------------------------
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EXHIBIT A
OUTLINE OF ALLIANCE SUPPLEMENTS
1. General
(a) Identification of parties and date of execution.
(b) Reference to Base Agreement.
2. Summary of Purpose for Alliance Supplement
(a) General description of required services and products.
3. Ownership of Work Product
(a) Agreement regarding relative rights of each party in the
\deliverables, including associated Intellectual Property
Rights.
(b) General description of preexisting works, if any.
4. Description of Equipment, Facilities, Programming, and Other Resources
to be Provided by Each Party
(a) If appropriate, identify personnel, by name or classification,
to be assigned to the work.
5. Description of Deliverables
(a) Include functional and technical specifications, as
applicable.
(b) Describe form of product to be delivered.
(c) Indicate whether documentation, such as reports, inspections,
and tests, are included as deliverables.
6. Protection of Confidential Materials
(a) Provide for treatment of source code or development
environment.
7. Special Terms (if any)
(a) Sharing of development expenses
(b) Payment terms and revenue sharing
(c) Method of customer delivery and support
(d) Roles of the parties (for customer contracting, billing and
collection, focal point for sales and support)
8. Payment Schedule, if applicable
Date Amount Deliverable/Milestones
---- ------ ----------------------
Statement of Work Executed
------- ------------- Project Management Plan Completed and Delivered
------- ------------- Specifications Accepted
------- ------------- Prototype Delivered
------- ------------- Testing and Debugging Completed
------- ------------- Code Delivered
------- ------------- Documentation Delivered
------- ------------- Acceptance
------- -------------
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9. Schedule and Performance Milestones
(a) This Schedule sets forth the target dates and performance
milestones for each party's responsibilities.
Performance Milestone Responsible Party Target Date
--------------------- ----------------- -----------
Company and Supplier meet
to prepare the Functional
Specifications and test
procedures ------------------ -----------, 19---
Project Management Plan
completed ------------------ -----------, 19---
Development Work to begin ------------------ -----------, 19---
Prototype to Company ------------------ -----------, 19---
Testing and Debugging ------------------ -----------, 19---
Acceptance and Final Delivery ------------------ -----------, 19---
10. Acceptance and Testing Procedures
11. Location of Work Facilities
(a) Where substantially all of the work will be conducted by the
Phone Interactive and Registry.
(b) Where on-going services are to be delivered from.
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