EXHIBIT 14.11
MTEL COMMUNICATIONS INC. AGENT AGREEMENT
THIS AGREEMENT (hereinafter the "Agreement") is made this 19th day of
October 2004, by and between Mtel Communications, a Florida corporation
(hereinafter referred to as "Company"), with its principal place of business at
0000 XX 000xx Xxxxx, Xxxxx, XX 00000, and XXXXXX BEAUMONT, INC. (hereinafter
referred to as "Agent"), with its principal place of at 0000 Xxxxxxxxx xxxxx,
Xxxxx 000 Xxxxxxxx, XX 00000 Tel: 000-000-0000 Fax: 000-000-0000.
1. COMMENCEMENT DATE & TERM.
-------------------------
The term of this agreement shall be for one year commencing on October
4, 2004, the commencement date.
2. SCOPE AND PURPOSE OF THE AGENT AGREEMENT.
-----------------------------------------
Company and Agent hereby agree to undertake a agent arrangement for the
purpose of pursuing and developing telecommunications business to and for
business entities having a principal place of business within the Territory. In
this regard it is specifically contemplated that Agent may purchase the Services
of the Company for resale by Agent to other brokers/distributors and/or end
users.
3. PAYMENT TERMS.
--------------
3.1 Payment to Agent for the services sold will be made monthly on
collected revenue. The commissions will be determined on a case by case. See
exhibit A
3.2. The charges and amounts payable to Agent by the company for the
Services, equipment, products, and goods to be provided by Company to Agent are
set forth in Schedule A, which by this reference are made a part hereto.
If Agent, in good faith, disputes any amount charged by Company, it shall submit
to Company within thirty (30) days of payment of any such disputed amount a
detailed written description of the nature of the dispute together with any
written documentation supporting Agent's position. Such documentation shall
include the detailed Call Detail Records (CDRs) analysis of various calls
identifying and substantiating the disputed amount.
4. PROVIDING OF SERVICES BY COMPANY.
---------------------------------
Upon the Receipt of Payment by Company, Company shall provide the
Services, and such other services, products, equipment and/or goods described in
Schedule A.
5. NONEXCLUSIVE AGREEMENT
----------------------
This Agreement is a non-exclusive agent contract between the parties
hereto. Accordingly, Company shall have the right, and hereby reserves the
right, to enter into agent agreements and/or Customer Contracts with parties
other than the Agent, within or outside the Territory, for the sale of its
Services, products, equipment and goods. Similarly, except as otherwise
1
specifically provided in Schedule A, which by this reference is made a part
hereto, agent shall have the right, and hereby reserves the right, within or
outside the Territory, to enter into agreements with parties other than the
Company for the purchase, sale, and/or resale of telecommunications services,
products, equipment and goods similar to the Services offered by Company.
6. CONFIDENTIALITY OF INFORMATION AND PUBLIC DISCLOSURE.
-----------------------------------------------------
6.1 The Non-Disclosure Agreement of even date herewith, by and between
the Parties hereto, is hereby made a part of this Agreement with full force and
effect and is appended hereto as Attachment 1. The aforesaid Non-Disclosure
Agreement shall survive the termination of this Agreement for any reason.
6.2. Each Party agrees not to disclose any of the terms and conditions
of this Agreement to any third party without the express written consent of the
other Party first had and received, except as may be required by Law or
governmental rule or regulation, or to establish either Party's rights under
this Agreement; provided, however, that if one Party seeks to disclose for
reasons not requiring the other Party's prior written consent, the disclosing
Party shall limit the disclosure to the extent required, will allow the other
Party the opportunity to review the information disclosed, and will apply where
available, for confidentiality, protective orders and the like. Any review of
this section will not be construed to make the disclosing Party responsible for
the content of any disclosure.
7. MUTUAL NON-DISCLOSURE OF TRADE SECRETS.
---------------------------------------
7.1. For purposes of this section "trade secret" shall mean
information, including a formula, pattern, compilation, program, device,
technique, or process that derives independent economic value, actual or
potential, from not being generally known to the public or to other persons who
can obtain economic value from its disclosure or use and is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
7.2. Each Party hereto agrees to preserve and protect, and not to
exploit for its own financial gain, the trade secrets of the other Party. This
provision shall survive the termination of this Agreement by either Party for
whatever reason.
8. DEFAULT AND TERMINATION.
------------------------
8.1. This Agreement may be terminated at any time during the term
hereof by the written agreement of the Parties.
9. NO WARRANTIES.
--------------
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, AND/OR IN SCHEDULE A
ATTACHED HERETO, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE PROVIDED FOR UNDER THE FLORIDA COMMERCIAL CODE, WITH RESPECT
TO ANY OF THE SERVICES, EQUIPMENT, PRODUCTS AND GOODS PROVIDED BY, OR TO BE
2
PROVIDED BY, COMPANY TO AGENT AND CUSTOMER PURSUANT TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT. COMPANY WILL USE REASONABLE EFFORTS UNDER THE CIRCUMSTANCES
TO MAINTAIN ITS OVERALL NETWORK. QUALITY. THE QUALITY OF SERVICES PROVIDED
HEREUNDER SHALL BE CONSISTENT WITH OTHER COMMON CARRIER INDUSTRY STANDARDS,
GOVERNMENT REGULATIONS AND SOUND BUSINESS PRACTICES.
10. INDEMNITY AND HOLD HARMLESS.
----------------------------
Each Party hereby agrees to defend, indemnify and hold harmless the
other Party, its officers, director, employees, and authorized agents against
and from any and all losses, claims, damages, costs, expenses, and liabilities,
joint or several, including reimbursement for attorneys' fees, under any
federal, state or local law, statute, code, or regulation to which a Party may
become subject as the result of acts of misfeasance, malfeasance or nonfeasance
by the other Party in connection with any of the transactions contemplated by
this Agreement; provided, however, the offending Party shall be liable in any
such case only to the extent that any such loss, claim, damage, or liability is
(i) found in a final judgment by a court or other tribunal to have resulted from
a violation of law by the offending Party in connection with the performance of
its duties hereunder; (ii) results from that Party's negligent, gross negligent
or intentional conduct in performance of its duties under this Agreement or
under any Customer Contract; or (iii) results from the offending Party's
material breach of any representation, warranty, covenant, or agreement
pertinent to this Agreement or to any Customer Contract. The provisions of this
section shall survive the termination of this Agreement for whatever reason.
11. ARBITRATION.
------------
The Party's may, but SHALL not be compelled to as a predicate to the
initiation of a lawsuit by either Party, submit any dispute, controversy or
claim between the Parties hereto arising out of or in any way relating to this
Agreement, its interpretation, or the alleged breach, termination or VALIDITY
thereof to an arbitrator or panel of arbitrators as the Parties may agree. Any
such arbitration, however, shall be conducted in Miami-Dade County, Florida.
12. WAIVER OF BREACH.
-----------------
No claim arising out of a breach of this Agreement can be discharged in
full, or in part, by a waiver or renunciation of the claim or right, unless the
waiver or renunciation is supported by consideration and is in writing signed by
the aggrieved party. Moreover, the failure of a Party to this agreement to
exercise any right or remedy provided by this Agreement, or by law, shall not be
a waiver of any obligation or right under this Agreement, or a waiver of any
similar default, nor shall it constitute a modification of this Agreement. No
3
delay or omission by either Party in the exercise of any right or power
hereunder shall impair such right or power or be construed to be a waiver
thereof. A waiver by either Party hereto of any of the conditions, covenants
and/or promises to be performed by the other Party or any breach thereof shall
not be construed to be a waiver of any subsequent breach thereof or of any other
condition, covenant or promise contained herein. All remedies provided for in
this Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either Party at law, in equity, or otherwise.
13. FORCE MAJEURE.
--------------
Neither Party shall be liable for any breach of this Agreement or delay
in performance, except for the failure to pay money due, resulting from a
strike, lockout, or other labor dispute, fire, earthquake, flood, civil
commotion, war, riot, act of God, casualty, accident, shortage of transportation
facilities, detention of goods by custom authorities, loss of goods in public or
private warehouse, delay in the delivery of energy, raw or finished materials,
parts, or completed merchandise by suppliers, or other cause beyond the
reasonable control of or occurring without the fault of such Party ("FORCE
MAJEURE "). Any deadline or time within which a Party must perform under this
Agreement shall automatically be extended upon the occurrence of any such FORCE
MAJEURE FOR A period of time equal TO the time lost because of such event, but
not for more than ninety (90) days. If such FORCE MAJEURE continues for more
than ninety (90) days, then the Party not in breach of contract as a result of
the FORCE MAJEURE, Or either Party if both are in breach of contract as a result
of the FORCE MAJEURE, may terminate this Agreement immediately upon written
notice to the other.
14. WRITTEN NOTICES.
----------------
Except as otherwise specifically provided elsewhere in this Agreement,
any and all notices provided for herein shall be in writing. Each such written
notice shall be delivered either (a) personally by personal service, in which
case the notice is effective upon delivery, (b) by facsimile transmission
followed by mailing (first class, postage prepaid) of the original written
notice the same day, in which case the notice is effective on the day of the
facsimile transmission, (c) by overnight carrier (such as Federal Express, DHL,
and UPS), in which case the notice is effective upon delivery, or (d) by regular
United States mail, postage prepaid, in which case the notice is effective on
the third day after the notice is mailed. The following addresses and facsimile
numbers shall apply to the parties herein:
4
COMPANY AGENT
MTEL COMMUNICATIONS, INC XXXXXX BEAUMONT INC
----------------------------- --------------------------------
0000 XX 000XX XXXXX 0000 XXXXXXXXX XXXXX, XXXXX 000
----------------------------- --------------------------------
XXXXX, XXXXXXX 00000 XXXXXXXX, XXXXXXX 00000
----------------------------- --------------------------------
FACSIMILE: 305-908-9368 FACSIMILE: 000-000-0000
----------------------------- --------------------------------
15. AUTHORITY TO EXECUTE AGREEMENT.
-------------------------------
Each Party hereby represents and warrants that the individuals
executing this agreement on behalf of such Party have the actual, implied and
ostensible authority to execute this Agreement on behalf of said. Party, and
that the other Party may rely, and will rely, absolutely on such authority.
IN WITNESS WHEREOF, the Parties, below, executed this Agreement.
COMPANY: AGENT:
MTEL COMMUNICATIONS INC XXXXXX BEAUMONT INC
/S/ /S/
---------------------------- --------------------------
Signature Signature
President CFO
---------------------------- --------------------------
Position Position
5
SCHEDULE "A"
6
