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EXHIBIT 10.15.3
TERMINATION AGREEMENT
This Termination Agreement is made as of the 30th day of November, 1998
(the "Effective Date"), but has been executed by the parties on the dates
written below the parties' signatures at the end of this Agreement) by and
between Paradigm Direct, Inc., a Delaware corporation, with offices located at 0
Xxxxxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx 00000 ("Paradigm") and Quintelcomm, Inc.,
a Delaware corporation, with offices at Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx
Xxxx ("Xxxxxxx").
WITNESSETH:
WHEREAS, Paradigm provided marketing services to Qwest Communications
Corporation ("Qwest") pursuant to that certain agreement dated as of April 15,
1998 by and between Qwest and Paradigm (the "Paradigm Qwest Agreement");
WHEREAS, Xxxxxxx agreed to provide Paradigm marketing services relating
to the Paradigm Qwest Agreement pursuant to the agreement dated as of May 6,
1998 by and between Paradigm and Xxxxxxx (the "Xxxxxxx/Paradigm Qwest Marketing
Agreement"); and
WHEREAS, Paradigm and Xxxxxxx now wish to (i) terminate the
Xxxxxxx/Paradigm Qwest Marketing Agreement, (ii) confirm the termination of
their joint marketing activities under the Xxxxxxx/Paradigm Qwest Marketing
Agreement, and (iii) settle amounts due to Xxxxxxx thereunder, all as set forth
herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
I. TERMINATION OF ACTIVITIES UNDER THE XXXXXXX/PARADIGM QWEST MARKETING
AGREEMENT. The Xxxxxxx/Paradigm Qwest Marketing Agreement is hereby terminated.
Xxxxxxx and Paradigm confirm that by mutual agreement Xxxxxxx ceased to provide
marketing services to Paradigm under the Xxxxxxx/Paradigm Qwest Marketing
Agreement as of August 1, 1998.
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(a) Subject to the payment by Paradigm to Xxxxxxx of the
Termination Payment, Xxxxxxx shall have no further claim for payment under the
Xxxxxxx/Paradigm Qwest Marketing Agreement, or otherwise with respect to the
activities conducted by Xxxxxxx and Paradigm with respect to the Paradigm Qwest
Agreement or the "new agreement" between Paradigm and Qwest dated as of October
1, 1998 referred to in clause (ii) below. Paradigm represents and warrants to
Xxxxxxx that (i) the Paradigm Qwest Agreement was terminated by consent of
Paradigm and Qwest as of October 1, 1998, and Paradigm did not receive any form
of payment or other consideration pursuant to Section 2(a)(3) of the Paradigm
Qwest Agreement, and (ii) Paradigm and Qwest entered into a new agreement as of
October 1, 1998 without a termination provision similar to Section 2(a)(3) of
the Paradigm Qwest Agreement, and (iii) Paradigm did not receive any payment or
other form of consideration in exchange for relinquishing the termination
payment provisions under or waiving any rights under Section 2(a)(3) of the
Paradigm Qwest Agreement.
(b) Notwithstanding the foregoing, Paradigm and Xxxxxxx agree that
each party must perform its respective obligations for fulfillment services
described in Section 3 of the Xxxxxxx/Paradigm Qwest Marketing Agreement.
2. PAYMENTS. At the Closing, Paradigm shall pay to Xxxxxxx by wire
transfer concurrently with the Closing the following amounts (collectively, the
"Termination Payment"): (i) $512,096.13 on account of amounts currently due
Xxxxxxx under the Xxxxxxx/Paradigm Qwest Marketing Agreement and (ii) $85,000.00
on account of Xxxxxxx'x interest in future payments respecting the $10 payment
tranche payable by Qwest under the Paradigm Qwest Agreement.
3. CLOSING
(a) This Agreement shall be effective contemporaneously with the
closing of the Purchase and Sale Agreement dated as of November 30, 1998 between
Paradigm and Xxxxxxx Communications, Inc. regarding the sale by Xxxxxxx and
purchase by Paradigm of Xxxxxxx Communications, Inc.'s interest in Paradigm
Cellular, L.L.C., a Delaware limited liability company.
(b) At the Closing, Xxxxxxx shall deliver to Paradigm the Mutual
Release, the form of which is attached hereto as Exhibit 3(b) (the "Release").
(c) At the Closing, Paradigm shall (i) pay to Xxxxxxx the
Termination Payment and (ii) deliver to Xxxxxxx the Release.
4. RETURN OF CERTAIN INFORMATION TO XXXXXXX. Paradigm acknowledges
that in the course of the activities conducted by Xxxxxxx and Paradigm under the
Xxxxxxx/Paradigm Qwest Marketing Agreement, Xxxxxxx made a computer-generated
database available to Paradigm containing names and/or telephone numbers
(collectively referred to as the "Xxxxxxx Information") for soliciting potential
customers under the Paradigm Qwest Agreement, all of which Xxxxxxx Information
Paradigm acknowledges is confidential and
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proprietary information belonging to Xxxxxxx. The term "Xxxxxxx Information"
does not include the names and telephone numbers of any actual or potential
customers obtained by Paradigm from any other source without breaching any
obligation of confidentiality owing to Xxxxxxx by Paradigm or such other source,
which or whose name or telephone number may also be included within the Xxxxxxx
Information. Paradigm agrees that all of the Xxxxxxx Information which is in
tangible form shall be returned to Xxxxxxx not later than thirty (30) days after
the date of this Agreement. Paradigm will not use, publish or disclose any of
the Xxxxxxx Information or authorize any other person or entity to make, use,
publish or disclose any of the Xxxxxxx Information for any purpose whatsoever;
provided, however, that to the extent that the current customers of Qwest are
persons disclosed as part of the Xxxxxxx Information, Paradigm shall continue to
have the right to use the name and telephone number of such customer in
Paradigm's performance under the Paradigm Qwest Agreement, but for no other
purpose.
Paradigm acknowledges and agrees that Xxxxxxx will be irreparably
damaged if the provisions of this Section 4 are not specifically enforced.
Accordingly, Xxxxxxx shall be entitled to an injunction restraining any breach
of this Section 4 by Paradigm (without being required to prove irreparable
injury), or any other appropriate decree of specific performance. Such remedy
shall not be exclusive and shall be in addition to any other remedy which
Xxxxxxx may have for such breach. As a condition precedent for the application
for any such injunction or any other form of equitable or extraordinary relief,
Xxxxxxx shall first notify Paradigm in writing of any such alleged breach. Such
notice shall contain the names and addresses of the persons for whom such a
breach is alleged to have occurred and such other information as may be
necessary to identify with specificity the cause of such breach. Paradigm shall
have five business days to respond to such notice of an alleged breach by
providing to Xxxxxxx written documentation demonstrating that Xxxxxxx and the
Company have not breached the provisions of Section 4. Xxxxxxx agrees to give
Paradigm and the Company at least two (2) business day's prior notice of any
application for injunctive or other extraordinary relief. The foregoing shall
not constitute a waiver of Paradigm's right to an undertaking or bond in
connection with such injunction or decree as provided under applicable law.
5. FURTHER ASSURANCES. If, at any time after the date hereof, either
party shall determine that any further assignments, conveyances, certificates,
filings, instruments or documents or any other things are reasonably necessary
or desirable to consummate any of the transactions contemplated by this
Agreement, the other party shall, upon request, promptly execute and deliver all
such proper instruments and do all things reasonably necessary and proper to
otherwise carry out the purposes of this Agreement.
6. MISCELLANEOUS.
(a) This Agreement and the exhibits hereto set forth the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersede any prior negotiations, agreements, letters
of intent, understandings or arrangements between the parties hereto with
respect to the subject matter hereof.
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(b) Each of Xxxxxxx and Paradigm represents and warrants to
the other that:
(i) It is a corporation duly organized, validity existing
and in good standing with the laws of the State of Delaware,
and has all requisite corporate power to own, operate and
lease its properties and carry on its business as the same is
now being conducted;
(ii) It has all requisite corporate power and authority to
execute, deliver and perform its obligations under this
Agreement and each agreement, document or instrument
contemplated hereby; the execution, delivery and performance
by Xxxxxxx of this Agreement and each such agreement,
document or instrument, and the consummation of the
transactions contemplated hereby and thereby, have been
authorized by all necessary action and (x) do not require the
consent, waiver, approval, license or authorization of any
person, entity, or public authority, (y) do not violate, with
or without the giving of notice and/or the passage of time,
any provision of law, and (z) will not conflict with or
result in a breach or termination of any provision of, or
constitute a default or give rise to a right of termination
or acceleration under, any corporate charter, by-law,
mortgage, deed of trust, indenture or other agreement or
instrument, or any order, judgment, decree, statute,
regulation or any other restriction of any kind or character,
to which Xxxxxxx is a party or by which any of its assets or
properties may be bound, or result in the creation of any
lien, charge or encumbrance upon any of the assets of the
Company;
(iii) it has duly executed and delivered this Agreement,
which constitutes, and each other agreement, document,
certificate or instrument contemplated by this Agreement when
executed and delivered shall constitute, its legal, valid and
binding obligation enforceable against it in accordance with
its terms.
(c) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto, or their respective successors, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
(d) In the event any provision of this Agreement or the
application thereof to any person or circumstances shall be adjudged to be
invalid or unenforceable according to any applicable laws, the remaining
provisions of this Agreement and the application thereof to any person or
circumstances shall not be affected thereby and shall be enforced to the fullest
extent permitted by law.
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(e) Unless some meaning and intent is apparent from the context of
the Agreement, the plurals shall include the singular and vice versa, and
masculine, feminine and neuter words shall be used interchangeably.
(f) The section and other headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
(g) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
PARADIGM DIRECT, INC.
By: /s/
--------------------------
Its: Chief Executive Officer
--------------------------
Date: January 25, 1999
--------------------------
QUINTELCOMM, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Its: Chief Executive Officer
--------------------------
Date: January 25, 1999
--------------------------
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EXHIBIT 3(b)
MUTUAL RELEASE
This Mutual Release is entered into this 25 day of January, 1999 by and
between PARADIGM DIRECT, INC., a Delaware corporation, with offices located at 0
Xxxxxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx ("Paradigm") and QUINTELCOMM, INC., a
Delaware corporation, with offices at Xxx Xxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx
("Xxxxxxx").
WITNESSETH:
WHEREAS, Paradigm has agreed to provide marketing services to Qwest
Communications Corporation ("Qwest") pursuant to that certain agreement dated as
of April 15, 1998 by and between Qwest and Paradigm (the "Qwest Agreement");
WHEREAS, Xxxxxxx agreed to provide Paradigm marketing services relating
to the Qwest Agreement pursuant to the agreement dated as of May 6, 1998 by and
between Paradigm and Xxxxxxx (the "Xxxxxxx/Paradigm Qwest Marketing Agreement");
WHEREAS, Paradigm and Xxxxxxx have confirmed the termination of their
joint marketing activities under the Xxxxxxx/Paradigm Qwest Marketing Agreement,
and settled amounts due to Xxxxxxx thereunder as of the date hereof as set forth
in an agreement between them of even date (the "Termination Agreement").
WHEREAS, Section 3 of the Termination Agreement requires each party to
release the other in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree:
1. Release. Xxxxxxx and Paradigm hereby release and discharge each
other, and their respective shareholders, directors, managers, members,
officers, employees, agents, attorneys, and their respective successors and
assigns, from all actions, causes of action, suits, debts, dues, accounts,
bonds, covenants, contracts, agreements, damages, judgments, claims, and demands
whatsoever, in law or in equity, which either party ever had, now has, or
hereafter can, shall or may have, for, upon, or by reason of any matter, causes
or things whatsoever from the beginning of the world to the date of this Mutual
Release arising out of the Xxxxxxx/Paradigm Qwest Marketing Agreement, except
for those obligations thereunder which survive pursuant to the Termination
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day near first above written:
QUINTELCOMM, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Its: Chief Executive Officer
--------------------------
PARADIGM DIRECT, INC.
By: /s /
--------------------------
Its: Chief Executive Officer
--------------------------
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AGREEMENT
AGREEMENT (this "Agreement"), dated as of April 15, 1998 by and between
Paradigm Direct, Inc., a corporation having offices at Two Executive Drive, Fort
Xxx, New Jersey 07024 ("Paradigm') and Qwest Communications Corporation, a
corporation having offices at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx.
00000 ("Qwest").
WITNESSETH
WHEREAS, Qwest is in the business of providing long distance
telecommunication services (the "Qwest Services'); and
WHEREAS, Paradigm is engaged in the business of providing marketing
services; and
WHEREAS, Qwest wishes to engage Paradigm to perform marketing services
(the "Marketing Services") with respect to the telecommunications services
offered by Qwest, and Paradigm wishes to accept such engagement, upon the terms
and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and conditions contained herein the parties, intending to be legally bound,
agree as follows:
1. PROVISION OF SERVICES.
(a) Qwest hereby engages Paradigm, and Paradigm hereby accepts
such engagement, to provide the Marketing Services on behalf of Qwest, upon the
terms and subject to the conditions contained herein.
(b) The parties agree that the appointment of Paradigm by Qwest is
not exclusive. Paradigm acknowledges and agrees that Qwest directly or through
other sales representatives may offer the Qwest Services to customers to whom
Paradigm may offer the Qwest Services. If a customer is solicited by Paradigm
and also by either another independent authorized sales representative or by an
employee of Qwest, the order shall be credited to Paradigm if the Paradigm order
is submitted at least 24 hours prior to the other representative's order. If the
orders are submitted on the same day, Qwest shall determine to which
representative or employee to credit such order, provided that Qwest will
alternate credits between Paradigm and other representatives to assure that
Paradigm receives credit for approximately one-half of all such orders.
2. COMPENSATION.
(a) AMOUNT OF COMPENSATION. As compensation for providing the
Marketing Services, Qwest shall pay Paradigm the following amounts with respect
to customers solicited by Paradigm:
1. Prior to January 1, 1999.
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(i) for each of the first 300,000 customers activated by
Qwest:
(a) the sum of _____ for each customer activated by
Qwest after 3rd party verification and PIC Freeze;
(b) the sum of _____ for each customer which has
remained a customer of Qwest for at least 30 days after initial
activation;
(ii) for each customer after the first 300,000 customers
activated by Qwest:
(a) the sum of _____ for each customer activated by
Qwest after 3rd party verification and PIC Freeze;
(b) the sum of _____ for each customer which has
remained a customer of Qwest for at least 30 days after initial
activation
(iii) the sum of $10 for each customer for which the average
monthly long distance billing in a consecutive six month period
equals or is greater than $10.00 and whose account balance is
current within 60 days; provided, that such fee shall be paid to
Paradigm for each time a customer meets such criteria in any six
month period; and provided further, that the xxxxxxxx of a
customer in any one month shall only be used one time in
calculating the foregoing amounts; and provided further, that such
payments shall only be made with respect to a customer for the 42
month period commencing on the date such customer was activated;
and
2. On and after January 1, 1999,
(i) the sum of _____ for each customer activated by Qwest
after 3rd party verification and PIC Freeze
(ii) the sum of _____ for each customer which has remained a
customer of Qwest for at least 30 days after initial activation;
(iii) the sum of $10 for each customer for which the average
monthly long distance billing in a consecutive six month period
following the initial 30 day period equals or is greater than $10 and
whose account balance is current within 60 days; provided, that such
fee shall be paid to Paradigm for each time a customer meets such
criteria in any six month period; and provided further, that the
xxxxxxxx of a customer in any one mouth shall only be used one time in
calculating the foregoing amounts; and provided further, that such
payments shall only be made with respect to a customer for the 42 month
period commencing on the date such customer was activated, and
3. If, prior to the date which is five years from the date
hereof, Qwest shall (a) terminate this Agreement in accordance with Section 4(a)
hereof, other than as a result of a material breach of this Agreement or the
commission of a fraudulent act by Paradigm, or (b) take
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or omit to take actions for a sixty (60) day period which, through no fault of
Paradigm, prevents Paradigm from attaining the criteria referenced in this
Section 2(a), then in either case Qwest shall pay Paradigm, on the effective
date of termination or the date which is the final date of the sixty day period
(the "Termination Date"), 75% of the Owed Amount for the greater of (i) each Ten
Plus Customer (each as defined below) on the Termination Date, or (ii) 500,000
customers, whether or not such customers are actual customers on the Termination
Date.
For purposes of this Section 2(a):
"Customer Term" shall mean the period commencing on the date a
customer is activated and ending 42 months after such date.
"Ten Plus Customer" shall mean a customer for which, on the
Termination Date, the average monthly long distance billing for such customer
equals or is greater than $10.00.
"Owed Amount" with respect to each Ten Plus Customer shall mean
the sum of $10 for each Six Month Period.
"Six Month Period" shall mean any consecutive six month period in
a Customer Term (provided that no one month shall be counted more than once),
other than a Period for :which a payment was made under Section 2(a)(iii).
(b) COMPENSATION ADJUSTMENT. At the end of the first 90 days
of the term of this Agreement, Qwest shall have the right to review the
compensation payable under paragraph (a) and make adjustments as deemed
appropriate and mutually agreed to by the parties.
(c) PAYMENT OF COMPENSATION. Amounts payable to Paradigm
under Section 2(a) hereof shall be billed weekly by Paradigm and shall be paid
by Qwest net thirty days. Each payment by Qwest shall be accompanied by all
documentation which supports the calculation by Qwest of amounts owed to
Paradigm and shall include, without limitation, third party verification
information, the names of activated and deactivated customers and the date on
which such activations and deactivations occurred. Paradigm will be paid
compensation only on amounts that are revenue to Qwest. Therefore, for purposes
of determining whether a customer account has satisfied the requirements of
paragraphs 2aliii and 2a2iii above, charges that Qwest pays as a result of
local, state or federal rules and regulations (including, but not limited to
taxes, access charges, universal service and high cost funds and PIC C charges)
shall not be included. Qwest shall also deduct any credits or discounts received
by the customer prior to determining whether the above referenced criteria have
been satisfied.
(d) CHARGE BACK. Qwest may charge back Paradigm for commissions
paid by mistake or on unauthorized PIC-changes.
(e) RESOLUTION OF DISCREPANCIES. Paradigm and Qwest shall
negotiate in good faith to resolve any discrepancies with respect to the payment
obligations of Qwest hereunder. In connection therewith Qwest shall promptly
provide Paradigm with all reasonably requested documentation and other
information with respect to such discrepancies. If the parties are unable to
resolve any such discrepancies within ten days after written notice thereof by
Paradigm, the
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parties shall submit such dispute to an independent accounting firm or other
third party to be mutually agreed upon, whose determination shall be final and
binding upon the parties. The expenses of such submission shall be borne equally
between the parties.
3. RELATIONSHIP OF PARTIES. Paradigm shall act as an independent
contractor and not an employee of Qwest for any purpose whatsoever. Paradigm
shall have no authority to execute any document on behalf of Qwest or bind Qwest
in any way whatsoever. Qwest shall not have any right to require Paradigm to
take any actions or devote any specific time or efforts whatsoever with respect
to the Marketing Services.
4. TERM; TERMINATION.
(a) This Agreement shall commence on the date hereof and be
effective for a period of five years from the date hereof; provided, however,
that either party may terminate this Agreement prior thereto upon ninety days'
written notice to the other.
(b) Qwest may terminate this Agreement for reasonable cause if
Paradigm or its employees, agents, subagents, representatives, vendors or other
affiliates has engaged in a pattern of the following conduct:
(i) makes any misrepresentation to a customer, prospective
customer, or to Qwest;
(ii) changes or attempts to change the primary interexchange
carrier ("PIC") of a customer to Qwest without the legal consent of the customer
("unauthorized "PIC-change");
(iii) takes any action or permits inaction which is
inconsistent with any rule, regulation, statute or law applicable to the
activities contemplated by this Agreement;
(iv) breaches any provision of this Agreement;
(v) is insolvent, commences a bankruptcy proceeding, is
placed in receivership or dissolves; or
(vi) assigns or attempts to assign this Agreement or any of
Paradigm's duties under this Agreement to another party without the prior
written consent of Qwest.
(c) Notwithstanding the payment terms set forth in Section 2
hereof, any and all amounts owing to any party hereunder through the Termination
Date shall be paid promptly upon termination of this Agreement.
5. OBLIGATIONS OF THE PARTIES.
(a) OBLIGATIONS OF PARADIGM.
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(i) Paradigm shall provide to such third party verification
agent as Qwest shall designate the customers which Paradigm has contacted and
which have agreed to purchase telecommunications services from Qwest.
(ii) Paradigm shall provide Qwest with a copy of proposed
scripts, storyboards, direct mail pieces and other information intended to be
used by Paradigm and its representatives in connection with the provisions of
the Marketing Services, which shall be approved by Qwest in writing prior to
Paradigm's use thereof.
(iii) Paradigm shall provide Qwest with monthly volume
projections; provided that such projections shall not in any way obligate
Paradigm to meet such projections.
(iv) Paradigm shall be responsible for all costs associated
with the Marketing Services (other than third party verification costs),
including costs of fulfillment of Affinity offers.
(v) Paradigm shall, at all times during the Term, permit
Qwest to monitor its telemarketing and promotional activities.
(b) OBLIGATIONS TO QWEST.
(i) Qwest shall be solely responsible for all
services required in connection with the activation and retention of customers,
including, without limitation, handling all inbound customer service calls,
billing and provisioning; provided, however, that Qwest shall not be responsible
for inbound inquiries relating to any premium or incentive, and shall instead
such customers' inquiries to Paradigm.
(ii) Qwest shall provide Paradigm with a daily data
file of all customers who have passed third Party verification, PICed and
canceled. Qwest shall provide Paradigm with such other information from time to
time as Paradigm shall reasonably request with respect to the obligations of the
parties hereunder.
(iii) Qwest shall be responsible for all third party
vendor costs including, without limitation, management thereof.
(iv) From time to time during the term hereof,
Paradigm may request that Qwest provide funding for customer support and
retention programs. Qwest may, but shall not be obligated to, provide any such
funding.
6. EXCLUSIVE REPRESENTATIVE.
(a) Qwest agrees that, during the Term hereof, no other person or
entity shall provide Qwest with Mass Direct Marketing Affinity Services (as
defined below); provided that Qwest shall not be so restricted if Qwest has not
activated at least 50,000 customers in the first six-month period of this
Agreement; and provided, further, that nothing contained herein shall prevent
Qwest from receiving Mass Direct Marketing Affinity Services
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from a third party as a result of a merger, acquisition or other business
combination of Qwest which may occur after the date hereof.
(b) For purposes hereof, "Mass Direct Marketing Affinity Services"
shall mean the direct marketing of services to consumers in which the offer
includes a gift, premium or other incentive based on some perceived interest of
the targeted customers which is communicated to the customer via outbound
telemarketing in excess of 2,000 telemarketing hours per month or direct mail in
excess of 50,000 pieces per month.
7. CONFIDENTIALITY.
(a) From and after the date hereof, the parties hereto shall keep
confidential and shall use all reasonable efforts to cause their respective
officers, directors, employees and agents to keep confidential, (i) the nature
and substance of this Agreement, and (ii) all Confidential Information (defined
below) of such other party, its affiliates and its clients, and shall not use or
disclose any such Confidential Information for any purposes other than those
contemplated by this Agreement; provided, however, that neither party shall be
subject to the obligations set forth in the preceding sentence with respect to
any such information provided to it by the other party which either (i)
subsequently enters the public domain through no act or failure to act on the
part of the receiving party, or (ii) is necessary or appropriate to disclose to
any regulatory or judicial authority having jurisdiction over any of the parties
hereto or as otherwise required by law.
(b) "Confidential Information" of a party shall mean any and all
material or information of any kind, whether tangible or intangible, relating to
the business and operations of such party including, without limitation,
business ideas and strategies, financial information and client identities, and
further including, without limitation, any information provided pursuant to
Section 5 hereof.
(c) The provisions of this Section 7 shall survive the termination
of this Agreement.
8. COMPETITION. Paradigm shall take all commercially reasonable steps
to protect the Confidential Information of Qwest including, without limitation,
the following:
(a) Paradigm shall not perform telemarketing services for any
other long distance or local carriers in the same physical location as that in
which any marketing services are being performed by Paradigm for Qwest;
(b) Paradigm shall not market services for any other long distance
or local carriers using any of the lists which Paradigm uses to perform the
Marketing Services for Qwest;
(c) Paradigm shall restrict access to Confidential Information
regarding Qwest including, but not limited to, data, software, plans and
marketing strategies, to those personnel actively involved in the performance of
Marketing Services for Qwest hereunder;
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(d) Paradigm shall not solicit customers or receive any
compensation for current customers of Qwest for whom/which Paradigm did not
receive compensation prior to the submission and acceptance of a service order;
(e) Paradigm shall for ninety (90) days from the date of
termination use its best efforts to not solicit customers who have Qwest
Services; and
(f) Paradigm agrees that, during the Term hereof, it shall not
provide marketing services for any long distance telecommunications provider,
other than those for which Paradigm is performing such services as of the date
hereof.
9. REPRESENTATIONS AND WARRANTIES. Each of the parties represents and
warrants to the other as follows:
(a) Such party has the full power and authority to execute and
deliver this Agreement, and this Agreement constitutes such party's legal, valid
and binding agreement, enforceable against such party in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and except that the availability of equitable
remedies, including specific performance, is subject to the equitable principles
and the discretion of the court before which any proceeding therefor may be
brought (whether at law or in equity).
(b) Such party is not a party to any contract or other agreement
which would restrict it from entering into this Agreement or performing its
obligations hereunder.
(c) COVENANTS. Paradigm hereby covenants and agrees during the
Term:
(i) to, at its own expense, operate in full compliance with
all laws, rules and regulations, including, but not limited to, all rules,
regulations, orders and opinions of the Federal Communications Commission, the
Federal Trade Commission, and regulatory and consumer agencies of the various
states;
(ii) to maintain the highest and most ethical standards of
sales and marketing prevailing in the telecommunications industry.
10. INDEMNIFICATION.
(a) Paradigm agrees to indemnify and hold harmless Qwest and
its officers, directors, employees and other affiliates from and against all
losses, claims, actions, suits, liabilities, damages, deficiencies, judgements,
settlements cost of investigation and other expenses, including but not limited
to interest, penalties and reasonable attorney's fees and disbursements incurred
(whether or not a third party is involved) in investigating, preparing for or
defending any litigation or other action commenced or threatened in connection
with the foregoing (collectively, "Losses"), based upon. or arising out of
breach of any representation, warranty, covenant or agreement of Paradigm
contained in this Agreement.
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(b) Qwest agrees to indemnify and hold harmless Paradigm and its
officers, directors, employees and other affiliates from and against all Losses
based upon or arising out of any breach of any representation, warranty,
covenant or agreement of Qwest contained in this Agreement.
11. TRADE NAMES AND TRADEMARKS.
(a) Paradigm may use only such Qwest trademarks, trade names and
service marks ("Marks") as may be authorized by Qwest in writing from time to
time and subject to any and all limitations contained in the grant of the right
of such use. Qwest may change Marks at any time and Paradigm agrees to abide by
any and all changes as directed by Qwest. Paradigm acknowledges that as between
the parties Qwest is the sole and exclusive owner of all Marks and Paradigm
agrees to use its continuing best efforts to:
(i) secure, protect and maintain the Marks,
(ii) assist Qwest in securing the Marks
(iii) and advise Qwest of any misuse or infringement of the
Marks that Paradigm has knowledge of during the Term.
(b) The effect of any termination of this Agreement on the Marks
shall be as follows:
(i) Upon termination of this Agreement, with no continuing
relationship between the parties, any permission or right to use the Marks
granted hereunder shall cease to exist. Upon such termination, Paradigm shall
immediately cease any use of such Marks and Paradigm shall immediately cease
referring to itself as an Authorized Sales Representative of Qwest.
(ii) Paradigm, or its designated agent, shall promptly, but
within thirty (30) days of the date of termination of this Agreement return to
Qwest all advertising, promotional and other materials which contain any of the
Marks. The parties hereto shall share equally in the cost of returning such
materials; provided, however, that if this Agreement is terminated by Qwest
pursuant to Section 4b. of this Agreement, Paradigm shall bear all of the costs
associated with the return of such materials.
12. MISCELLANEOUS.
(a) NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally by
hand, by telecopy or mail if mailed by registered or certified mail, postage
prepaid return receipt requested or by federal express or similar overnight
courier service as follows:
If to Paradigm, one copy to:
Xxxxx Xxxx
16
Paradigm Direct Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx, 00000
Telecopier: 000-000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
If to Qwest, one copy to:
Xxxx Xxxxx
Qwest Communications Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopier: 000-000-0000
with a copy to:
Xxxxxx Xxxxxx
Qwest Communications Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telecopier: 000-000-0000
Each such notice or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopier number specified
and a confirmation receipt is received by the sender; or (ii) if given by any
other means set forth above, when delivered at the address specified. Any party
by notice given in accordance herewith to the other party may designate another
address (or telecopier number) or person for receipt of notices hereunder.
(b) AMENDMENT-WAIVER. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties hereto or, in the case of a waiver, by
the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege. The rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies that any party may otherwise have at
law or in equity.
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(c) GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Colorado applicable to agreements
made and to be performed entirely within such State, without regard to the
conflict of laws rules thereof.
(d) ARBITRATION. Except as provided in Section 2(c) hereof, any
controversy arising in connection with or relating to this Agreement shall be
determined and settled by arbitration in the State of Colorado in accordance
with the rules of the American Arbitration Association. Any award rendered
therein shall be final and binding on each of the parties hereto and judgement
may be entered thereon in any court having jurisdiction.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by a party
without the express written consent of the other and any purported assignment,
unless so consented to, shall be void and without effect.
(f) SEVERABILITY. If any provisions of this Agreement for any
reason shall be held to be illegal, invalid or unenforceable, such illegality
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such illegal, invalid or unenforceable provision had never
been included herein.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
(i) STANDARD OF CONDUCT. In performing its duties under this
Agreement, Paradigm shall maintain the highest and most ethical standards of
sales and marketing prevailing in the telecommunications industry. Paradigm
shall do nothing which would tend to discredit, dishonor, reflect adversely on
or in any manner injure the reputation or brands of Qwest.
IN WITNESS WHEREOF, the PARTIES hereto have caused this Agreement to be
executed as of the date first above written.
PARADIGM DIRECT, INC.
By: /s/ Xxxxx Xxxx
----------------------------
Xxxxx Xxxx
President
QWEST COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
