COMARKETING AGREEMENT
BETWEEN
AT&T AND EVC
TABLE OF CONTENTS
ARTICLE PAGE
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1. PURPOSE OF AGREEMENT 4
2. TERM 4
3. REPRESENTATIVES OF THE PARTIES 4
4. AT&T RESPONSIBILITIES 5
5. EDUCATIONAL VIDEO CONFERENCING RESPONSIBILITIES 5
6. RELATIONSHIP OF THE PARTIES 7
7. PUBLICITY 7
8. USE OF INFORMATION 8
9. TRADEMARKS 9
10. TERMINATION 10
11. EFFECTS OF XXXXXXXXXXX 00
00. LIMITATION OF LIABILITY 12
13. INDEMNITY 13
14. FORCE MAJEURE 13
15. MISCELLANEOUS PROVISIONS 14
LIST OF APPENDICES
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APPENDIX 1 - CO-MARKETING PROGRAM
This Agreement, entered into as of with Educational Video Conferencing is
between the AT&T Corp. ("AT&T"), a New York corporation with offices at 32
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 through its Business
Communications Services business unit, and EDUCATIONAL VIDEO CONFERENCING,
INC. ("EDUCATIONAL VIDEO CONFERENCING") a corporation with offices at 00 Xxxx
Xxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000. For purposes of this Agreement, AT&T
shall include all of its affiliate companies and interests in which it has a
majority ownership and UNITEL, a Canadian based communications carrier.
RECITALS
1. AT&T seeks suppliers for communication products or system integration or
other professional services or installation and maintenance services of
equipment to be used with the domestic and international telecommunications
services provided by AT&T to meet customers' needs around the world; and
2. EDUCATIONAL VIDEO CONFERENCING has a product presence and the ability to
supply to AT&T customers and/or to AT&T such products or systems integration
capabilities;
THEREFORE, AT&T and EDUCATIONAL VIDEO CONFERENCING agree as follows:
1. Purpose of Agreement
To stimulate sales of AT&T domestic and international telecommunications
services ("Network Services") and sales of EDUCATIONAL VIDEO CONFERENCING's
products or systems integration services, the parties agree to undertake a
co-marketing program, as described in the Appendices.
2. Term
The term of this Agreement shall commence on the Effective Date and shall
continue in effect for a period of three (3) years unless terminated earlier
pursuant to Article 10 of this Agreement. Any extensions of the term of this
Agreement must be expressly agreed to by both parties in writing and neither
party shall have any obligation to agree to extend this Agreement.
3. Representatives of the Parties
Each party shall appoint a Manager to coordinate their respective
activities pursuant to this Agreement. Each Manager shall act as a single
point of contact through who all activities pursuant to this Agreement must be
directed.
4. AT&T Responsibilities
(a) AT&T will be responsible for all expenses it incurs in
connection with its performance of this Agreement, including, but not limited
to, expenses incurred in performing its responsibilities pursuant to this
Article 4 and Appendix 1.
(b) AT&T will not represent that it has any relationship with
EDUCATIONAL VIDEO CONFERENCING other than the relationship described in this
Agreement. AT&T shall have no authority to bind EDUCATIONAL VIDEO CONFERENCING
to any contract or otherwise make representations as to the policies and
procedures of EDUCATIONAL VIDEO CONFERENCING. AT&T assumes full responsibility
for the acts of its employees and for the payment of all unemployment, social
security and other payroll taxes, and will make its personnel aware of the
restrictions on the use of EDUCATIONAL VIDEO CONFERENCING's information set
forth in Article 8.
(c) AT&T will not use any materials referencing EDUCATIONAL VIDEO
CONFERENCING or EDUCATIONAL VIDEO CONFERENCING's products that have not been
prepared or approved by EDUCATIONAL VIDEO CONFERENCING and shall make no
representations or warranties relating to EDUCATIONAL VIDEO CONFERENCING's
Equipment.
(d) AT&T shall comply with all requirements of applicable laws,
ordinances, administrative rules and regulations.
5. EDUCATIONAL VIDEO CONFERENCING Responsibilities
(a) EDUCATIONAL VIDEO CONFERENCING will be responsible for all
expenses it incurs in connection with its performance of this Agreement,
including, but not limited to, expenses incurred in performing its
responsibilities pursuant to this Article 5 and Appendix 1.
(b) EDUCATIONAL VIDEO CONFERENCING will not represent that it has
any relationship with AT&T other than the relationship described in the
Agreement. EDUCATIONAL VIDEO CONFERENCING shall have no authority to bind AT&T
to any contract or other wise make representations as to the policies and
procedures of AT&T. EDUCATIONAL VIDEO CONFERENCING assumes full responsibility
for the acts of its employees and for the payment of all unemployment, other
payroll taxes, and will make its personnel aware of the restrictions on the
use of AT&T's information set forth in Article 8.
(c) EDUCATIONAL VIDEO CONFERENCING will not use any materials
referencing AT&T Network Services that have not been prepared by AT&T and
shall make no representations or warranties relating to Network Services.
(d) EDUCATIONAL VIDEO CONFERENCING shall comply with all
requirements of applicable laws, ordinances, administrative rules and
regulations of the countries designated in Appendix 5 hereto, and shall take
prompt action to remove or remedy any violation which occurs or is discovered
during the term of this Agreement.
(e) EDUCATIONAL VIDEO CONFERENCING represents that it intends to
continue to develop, enhance and market products as EDUCATIONAL VIDEO
CONFERENCING determines in its sole discretion, and EDUCATIONAL VIDEO
CONFERENCING shall provide technical information to AT&T regarding all
developments, enhancements or changes to its products as EDUCATIONAL VIDEO
CONFERENCING deems appropriate to this relationship.
6. Relationship of the Parties
The parties will have only the rights specifically granted in this
Agreement. The relationship between the parties shall be that of independent
contractors and not of principal and agent, employer and employee, franchisor
and franchisee, partners or joint venturers. Each party agrees that this
Agreement does not establish either party as a dealer, distributor or
franchisee of the other party and that no fee is being paid to either party by
the other party to enter into this Agreement. Each party agrees that the other
party has the right to enter into the same or similar arrangement with other
entities or individuals.
7. Publicity
(a) The parties may jointly prepare and issue a press release
announcing the execution of this Agreement. The particular terms and
conditions of this Agreement are confidential and shall not be disclosed to
any third party by AT&T or EDUCATIONAL VIDEO CONFERENCING without the prior
written consent of the other. No public statements or announcements relating
to this Agreement, other than either party publicly identifying the other as a
co-marketing vendor, shall be issued by either party without the prior,
written consent of the other. Nothing herein shall prevent AT&T or EDUCATIONAL
VIDEO CONFERENCING from making statements or disclosures relating to this
Agreement (or the terms and conditions thereof) as may be required by any
filings with or any proceedings before any competent governmental authority,
court or agency, if such party believes that such statements or disclosures
are necessary in order to satisfy its obligations under applicable laws or
regulations. Such party shall furnish prior notice thereof to the other party.
(b) This Agreement shall be considered Confidential Information as
defined in Article 8 of this Agreement and shall be treated by the parties
accordingly.
8. Use of Information
This Agreement and any information and data of any nature including,
but not limited to, proprietary, technical, marketing, operating, performance,
cost, know-how, business pricing policies, programs, data systems, inventions,
discoveries, trade secrets, techniques, process, computer programming
techniques and all record-bearing media containing or disclosing such
information and techniques furnished by one party to the other in connection
with this Agreement, which has either been stamped or otherwise identified as
confidential
or proprietary ("Confidential Information") and all copies of Confidential
Information made by the receiving party: (a) shall be held in confidence; (b)
shall be used by the receiving party and those of its employees with a need to
know the information only to perform their responsibilities pursuant to this
Agreement; (c) shall not be reproduced or copied, in whole or in part, except
as necessary for its authorized use; and (d) shall be returned to originating
party or destroyed, together with all copies, when it is no longer needed or
upon termination or expiration of this Agreement. Confidential Information
shall not include any information previously known to the receiving party free
of any obligation to keep it confidential, or is subsequently made public by
the disclosing party or a third party having a legal right to make such
disclosure, or is independently developed by the receiving party. Confidential
Information shall not be disclosed to third parties, including but not limited
to the receiving party's dealers or distributors except with written
permission of the other party, after executing an appropriate non-disclosure
agreement, and for the purpose of performing the obligations of an
end-customer sale. The parties agree to adhere to the requirements of this
Article for two (2) years following the termination or expiration of this
Agreement.
9. Trademarks and Trade Names
(a) Except as otherwise agreed, neither party will display or use,
in advertising or otherwise, any of the other party's trade names, logos,
trademarks, trade devices, service marks, symbols, abbreviations or registered
marks, or contractions or simulations thereof, (hereinafter referred to
collectively as "Marks") and will not authorize the same to be used or
displayed by third parties. Any use by a party of the other party's Xxxx shall
be subject to the other party's advance approval in writing. Neither party
shall claim ownership or any other rights in the other party's Marks. Upon
termination of this Agreement, any and all rights or privileges of either
party to use the other's Marks shall expire and each party shall immediately
discontinue the use of the other's Marks. For purposes of this Article, the
Marks of either party shall include those of the parent corporation, its
subsidiaries and affiliates.
(b) Upon receipt of a party's proposed materials containing the
other party's Marks, the receiving party's Manager will review the material
and will either approve the material as is, approve, subject to corrections
specified, or reject the material. The written decision of the review of such
material shall be communicated to the other party within twenty-one (21)
calendar days of the receipt of the material.
10. Termination
(a) Either party may terminate this Agreement without cause upon
thirty (30) day's prior written notice to the other party without liability of
any kind to the other party.
(b) Either party may terminate the Agreement effective immediately
by written notice if or when it is discovered that the other party has: (i)
intentionally, or in a willful, wanton or reckless manner, made any material
false representation, report or claim relative hereto; (ii) violated the
other's Marks; (iii) become insolvent, invoked as a debtor any laws relating
to the relief of debtor's or creditor's rights, or had such laws invoked
against it; (iv) become involved in any liquidation or termination of
business; (v) been adjudicated bankrupt; or (vi) made or executed an
assignment for the benefit of its creditors.
(c) Either party may terminate this Agreement upon thirty (30) day's
written notice with an opportunity for the other party to cure the situation
before the date of termination, if or when the other party shall:
(i) fail to fully comply with obligations to maintain the
confidentiality of any proprietary information; or
(ii) fail to perform the material responsibilities and
obligations of the Agreement.
(d) The termination of this agreement shall not affect any legal or
equitable rights that either party may have.
11. Effects of Terminations
(a) Expiration or termination of this Agreement shall not relieve
the parties of any obligations due at the time of such expiration or
termination, nor shall such expiration or termination prejudice any claim of
either party accrued on account of any default or breach by the other.
(b) Upon expiration or termination of this Agreement, each party
shall immediately return to the other party, or, if agreed to by the other
party,
destroy, all promotional materials and all confidential Information supplied by
the other party, and cease holding itself out, in any manner, as a participant
in the program contemplated by this Agreement.
12. Limitation of Liability
(a) THE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING FROM OR
RELATED TO THIS AGREEMENT (EXCEPTING CLAIMS FOR BODILY INJURY AND/OR DEATH, OR
CLAIMS FOR INFRINGEMENT, BREACH OF CONFIDENTIALITY, OR INDEMNITY) REGARDLESS
OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL IN NO
EVENT EXCEED THE LESSER OF THE DIRECT DAMAGES ACTUALLY PROVEN OR $10,000. IN
NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER OR ITS
AFFILIATES FOR INCIDENTAL, SPECIAL, RELIANCE, CONSEQUENTIAL OR ANY OTHER
INDIRECT LOSS OR DAMAGE OF ANY KIND WHATSOEVER INCLUDING LOST PROFITS OR
REVENUES ARISING OUT OF THIS AGREEMENT. THIS CLAUSE SHALL SURVIVE THE FAILURE
OF ANY EXCLUSIVE REMEDY.
(b) AT&T's tariffs, including limitations on AT&T's liabilities,
shall govern AT&T's entire obligations and liabilities for AT&T's tariffed
services, including any claims for failure to meet installation dates.
13. Indemnity
Each party ("Indemnifying Party") shall defend, indemnify and hold
the other party and its affiliates harmless from any and all claims, suits,
actions, demands, costs, settlements, losses, damages, expenses and all other
liabilities, including attorney's fees, arising out or resulting from the
intentional or negligent acts or omissions on the part of the Indemnifying
Party, its employees, officers, partners, contractors, agents or affiliated
companies in the performance of or failure to perform the activities
contemplated by this Agreement.
14. Force Majeure
Neither party shall be held responsible for any delay or failure in
performance of any part of this Agreement except a failure to make any
payments to the extent such delay or failure is caused by: fire, flood,
explosion, war, strike, power blackout, earthquake, volcanic action, water,
the elements, embargo, labor dispute, government requirement, civil or
military authority, acts of God, nature, public enemy, inability to secure raw
materials, products or transportation facilities; acts or omission or carriers
or suppliers, acts or failure to act of any governmental authority, or any
other causes beyond its reasonable control, whether or not similar to the
foregoing. Each party shall endeavor to give the other reasonable notice of
any such delay or failure.
15. Miscellaneous Provisions
(a) The validity, interpretation and performance of this Agreement
shall be governed by the law of the State of New Jersey, excluding its choice
of law rules. Any legal action arising from or in connection with this
Agreement must be brought within two (2) years after the cause of action
arises.
(b) All notices or other communications provided for under this
Agreement shall be in writing and delivered or sent by telegram, telex,
facsimile or similar same day confirmed communication and shall be addressed
as follows:
To: AT&T To: EDUCATIONAL VIDEO CONFERENCING
Xxxx Xxxxx
Room 3A120V
000 Xxxxxx 000/000 Xxxxx
Xxxxxxxxxx, XX 00000-0000
FAX: 000-000-0000
PHONE: 000-000-0000
In the event of change of address or representation, written notice of such
change shall be given to the other party. A notice shall be deemed to have
been given on the date it is sent.
(c) Neither party shall assign any right or interest, or delegate
any obligation, under this Agreement without the prior, written consent of the
other except that either party shall have the right to assign its rights and
delegate its duties under this Agreement in whole or in part, at any time upon
thirty (30) days' prior, written notice to the other, and without the other
party's consent, to any present or future Affiliate of such party.
(d) A waiver of any claim, demand or right based on the breach of
any provision of this Agreement shall not be construed as a waiver of any
other claim, demand or right based on a subsequent breach of the same or any
other provision. No waiver by a party of any breach by the other party under
this Agreement shall be effective unless such waiver is set forth in a written
instrument signed by the non-breaching party. The failure of a party to
enforce at any time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way affect the
validity of this Agreement, or any part, or the right of any party hereafter
to enforce each and every provision hereof.
(e) Neither party shall require waivers or releases of any personal
rights from representatives of the other in connection with visits to its
premises and both parties agree that no such releases or waivers shall be
pleaded by them in any action or proceeding.
(f) The obligations of the parties under Articles 7, 8, 9, 12, 13
and 15(i) and Appendix 1, Section II.D.8 in this Agreement shall a survive any
expiration, termination or cancellation of this Agreement.
(g) If any part, term or provision of this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining parts, terms or provisions shall
not be affected. Such part, term or provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability without invalidating
the remainder of such part, term or provision or the remaining portions of
this Agreement. The rights and obligations of the parties shall be construed
as if the Agreement did not contain the particular invalid, illegal or
unenforceable part, term or provision, unless such invalid or unenforceable
part, term or provision is material and essential to either one or the
parties, in which event the parties shall immediately negotiate a replacement
therefore.
(h) The Article headings are inserted for convenience only and are
not intended to affect the meaning or interpretation of this Agreement.
(i) The terms and conditions of this Agreement, including its
Appendices, represent the entire understanding and agreement between the
parties as to its subject matter, supersede any prior writing, and merge all
discussions, proposals, understandings and negotiations between the parties
prior to, or contemporaneous with, their signature. In the event of
inconsistency or conflict between the Agreement and the Appendices, the
Appendices shall control.
(j) This Agreement shall not be modified, altered, changed or
amended in any respect, except by a writing signed by the authorized
representatives of both parties. No course of dealing or usage of trade shall
be invoked to modify the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representatives.
AT&T EDUCATIONAL VIDEO CONFERENCING
By: /s/ By: /s/
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Xxxxx X. Lunga Xx. Xxxx X. Xxxxxxxx
(Name Printed or Typed) (Name Printed or Typed)
Title: GISDN Division MGR Title: Chairman and CEO
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Date: September 16, 1998 Date: July 9, 1998
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AT&T Co-Marketing Agreement
Exhibit A
1998
AT&T will print and distribute the first direct marketing mailer to all AT&T
corporate & residential customers in the United States in Late November or
early December.
EVC will distribute AT&T Global ISDN brochures at the mini RIMS conference in
Chicago in November.
AT&T and EVC will jointly participate in the Superintendents conference in
January in New York.
1999
AT&T and EVC will mutually agree in early December 1998 or early January 1999
on the list of shows and conferences to attend and the number and timing of
direct marketing mailings for 1999.
/s/ /s/
