Confidentiality Agreement
The undersigned readers acknowledges that certain information provided by
both parties is confidential; therefore, both parties agree not to disclose
it without the express written permission of the other party.
It is imperative for the success of this agreement that no third parties
are privy to the terms of this agreement. By signing here both parties
agree not to share this information with any third party.
It is acknowledged by reader that information to be furnished in this
agreement is in all respects confidential in nature, other than information
which is in the public domain through other means and that any disclosure
or use of same parties, may cause serious harm or damage to the other
party.
______________________ ______________
eWorldMedia, Inc. Date
Xxx Xxxxxxxx
Chief Executive Officer
______________________ ______________
Xquisite Enterprises, LLC Date
XX Xxxxxx
Chief Executive Officer
AGREEMENT FOR
TRAVEL SERVICES AND TECHNOLOGIES
This Agreement, entered into this 29th day of September 2005 is by and
between eWorldMedia, Inc., a Nevada corporation (the "Company"), and
Xquisite Enterprises, LLC ("XCorp.")
RECITALS:
A. Company desires to hire XCorp to build a travel search engine
that allows travel to be booked on.
B. XCorp has substantial knowledge and experience in the "Travel"
and "Technology" business.
C. Company and XCorp are 50/50 co-owners of, or have acquired rights
to, the Software and Documentation as defined in section 1.1 to 1.9 of this
Agreement.
D. Company has allocated shares of a combination of common and
Series B preferred stock to further compensate XCorp.
E. XCorp desires to grant the Company and Company desires to obtain
from XCorp a(n) exclusive service to build a travel search engine as
defined in Section 1.1 to 1.9 of this Agreement.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, the parties hereto agree as follows:
1. Services of XCorp
1.1. XCorp shall be in charge of developing travel technology jointly
with the Company. This includes the developing of relationships to offer to
the Company's clients online booking of travel, integrating special travel
packages, offering of a travel "discount" card, and anything else that will
make the travel product attractive for the company's agents, clients and
customers.
1.2. Some of what XCorp will be working on is an air, car, hotel
booking engine 3rd party licenses and implementation- an ITA (Independent
Travel Agent) Card Program, intense multimedia training & testing program,
ITA card fulfillment services, Travel Commission Generation Program, and
Custom Travel Booking Technology, (hereinafter "Software").
1.3. XCorp will invest a full time effort with the Company. This time
will be spent improving the product offering and developing relationships
with suppliers, technology partners and the technology staff.
1.4. XCorp shall invest a full time effort into the building of
eWorldMedia travel website presence.
1.5. XCorp will report to the Company staff member assigned by the
president of the Company.
1.6. XCorp performance will be based on a combination of customer
feedback, agent feedback, and sales of the Company's travel division.
1.7. XCorp employs a team of five programmers that will be investing a
full time effort in aiding him to fulfill this agreement. It is understood
that these individuals are not contracted by the Company and that it is the
responsibility of XCorp to compensate its team. XCorp is an independent
contractor and not employee of the Company.
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1.8. XCorp will provide a subcontracted fulfillment for ITA card
fulfillment services. XCorp will ensure the fulfillment center will
coordinate a total delivery package from product design to end-user
mailing. ITA Card Welcome Packet will include an ITA card, resource CD and
professional letter of accreditation. The subcontracted fulfillment center
will charge a processing fee of twenty-nine dollars and ninety-five cents
($29.95) per ITA card to cover all postage, transaction fees, labor and
printing services directly from the xXxxxxXxxxxx.xxx website. This fee
requires the Company's distributors and/or agents to process their payment
via website prior to accepting the policies and procedures and passing the
accreditation exam. XCorp does not make a profit on any of these services.
1.9. XCorp will provide a travel agency which meets all requirements,
sellers of travel licensing and registration in required states throughout
the United States. This includes general consumer disclosure and fraud
statutes, and refund policy requirements, some specifically addressing in
part travel services companies, which are applicable to any business that
arranges markets or sells travel services.
1.10. XCorp will charge a service fee per booking from
xXxxxxXxxxxx.xxx. This non-refundable service fee is charged at the time
of booking in order to offer the lowest prices, system maintenance and on-
going development. Applied Management Services, LLC (hereinafter "AMS")
has been subcontracted to handle communication and payment services to the
Company. AMS will be paid a commission of the service fee payable at the
end of accounting month. Fifty percent (50%) of the commissionable fees
paid to AMS will then be paid to the Company.
2. Stock Compensation. In addition to any cash commissions earned
through its sales efforts, or through any other agreement, the Company has
agreed to allow XCorp to earn stock.
2.1 Stock Compensation Consideration. In consideration for entering
into this Agreement, fifty thousand (50,000) of its shares of Series B
preferred stock will be immediately issued XCorp by the Company.
2.2 Stock Compensation for Launch General Travel Search Engine. On
October 10, 2005 XCorp will deliver to the Company a workable general
travel search engine based on the following:
2.2.1 A general travel search engine will provide over eighteen
thousand (18,000) special internet rates which are guaranteed the lowest
rates. Consumers will be able to search over fifty thousand (50,000)
properties from leading GDS booking systems, vacation packages (air, car &
hotel), car rental and airlines reservations. The general travel search
engine will provide a destination guide with content in over five thousand
(5,000) cities worldwide. Monthly specials will be featured. A separate
cruise booking engine will be linked to the general travel search engine
and provide rates from all major cruise lines.
2.2.2 The Company will issue to XCorp an additional one hundred
eighty thousand (180,000) of its shares in a combination of Series B
preferred stock.
2.3 Stock Compensation for Launch FAM Engine. On November 1, 2005
XCorp will deliver to the Company a workable FAM search engine based on the
following:
2.3.1 A search engine that is the one comprehensive source for
familiarization (FAMs) and Travel Agent Reduced Rate Travel. This search
engine will find the best FAM trips around the world - cruises, cruise
seminars, river cruises, and land trips to Europe, Australia, Asia, Africa,
Central & South America, the Caribbean, and certainly the USA. The search
engine will receive FAMs from over 700 cruise lines, tour operators,
wholesalers, hotels, etc. for travel agent travel throughout the world. The
search engine will provide month after month with over 2,000 FAMs on over
200 pages.
2.3.2 The Company will issue to XCorp an additional on hundred eighty
thousand (180,000) of its shares in common stock.
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2.4 Stock Compensation for Launch Consolidator Engine. On December 1,
2005 XCorp will deliver to the Company a workable travel consolidator
engine based on the following:
2.4.1 Consolidator search engine will provide multiple consolidator
fare comparisons along with real-time confirmed bookings, these mean more
options for your customer and agents. Powerful search and tracking features
combined with the most complete content result in an unparalleled tool that
will provide up to 70% discount on full published fares.
2.4.2 The Company will issue to XCorp an additional ninety thousand
(90,000) of its shares in common stock.
2.5 Additional Stock Compensation. The Company shall allow XCorp to
earn additional shares based on increasing the value of the travel division
and the company through technology innovations. Both sides are willing to
meet at the end of this agreement to discuss the potential to earn
additional shares.
2.6 Stock Compensation Issuance. The total amount of shares available to
be issued
to XCorp is five hundred thousand (500,000) shares of series B
preferred stock or common stock. The shares will be issued within seven
days of the request and confirmation of each production step.
3. Cash Compensation. Upon signing of agreement, the Company will
position each of XCorp staff in a prime position of eWorldMedia, Inc.
network marketing binary plan.
The Company will provide compensation to XCorp in the amount of
seventeen
thousand five hundred dollars ($15,500) per month for a period of four
(4) months as a non-recoupable guarantee. Each payment of seventeen
thousand five hundred dollars ($17,500) is due on the 25th of each month
commencing with the first payment due on September 30, 2005. From then on,
the remaining three (3) payments will be due on the 25th of each month.
Thereafter, cash compensation to XCorp staff shall derive from Company
provided prime positioning of each staff member into the eWorldMedia, Inc.
network marketing binary plan.
4. Travel.. The Company will provide airfare, hotel, and car rental if
needed and meeting room if necessary for out of town meetings. These
expenses must be approved in advance by vice-president of eWorldTravel by
email confirmation.
5. Confidentiality.
5.1. Confidential Information. Both parties recognizes and
acknowledges that certain information, including, but not limited to,
information pertaining to the financial condition of both parties, its
systems, methods of doing business, agreements with customers or suppliers,
or other aspects of the business of both parties or which are sufficiently
secret to derive economic value from not being disclosed (hereinafter
"Confidential Information") may be made available or otherwise come into
the possession of either party by reason of its engagement with the each
party. Accordingly, both parties agree that it will not (either during or
after the term of its Agreement with both parties) disclose any
Confidential Information to any person, firm, corporation, association, or
other entity for any reason or purpose whatsoever or make use to its
personal advantage or to the advantage of any third party, of any
Confidential Information, without the prior written consent of the Board of
Directors (the "Board"). Both parties shall, upon termination of this
Agreement, return to either party all documents, which reflect Confidential
Information (including copies thereof). Notwithstanding anything
heretofore stated in this subsection 5.1, both parties' obligations under
this subsection 5.1 shall not, after termination of this Agreement, apply
to information which has become generally available to the public without
any action or omission of XCorp (except that any Confidential Information
which is disclosed to any third party by either party or representative of
either party who is authorized to make such disclosure shall be deemed to
remain confidential and protectable under this subsection 5.1).
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5.2 Maintenance of Confidential Information. Each party agrees to
keep confidential all confidential information disclosed to it by the other
party in accordance herewith, and to protect the confidentiality thereof in
the same manner it protects the confidentiality of similar information and
data of its own (at all times exercising at least a reasonable degree of
care in the protection of confidential information); providing, however,
that neither party shall have any such obligation with respect to use of
disclosure to others not parties to this Agreement of such confidential
information as can be established to: (a) have been known publicly; (b)
have been known generally in the industry before communication by the
disclosing party to the recipient; (c) have become known publicly, without
fault on the part of the recipient, subsequent to disclosure by the
disclosing party; (d) have been known otherwise by the recipient before
communication by the disclosing party; or (e) have been received by the
recipient without any obligation of confidentiality from a source (other
than the disclosing party) lawfully having possession of such information.
5.3 Injunctive Relief. The Company acknowledges that the
unauthorized use, transfer of disclosure of the Software and Documentation
or copies thereof will (i) substantially diminish the value to XCorp of the
trade secrets and other proprietary interests that are the subject of this
Agreement; (ii) render XCorp's remedy at law for such unauthorized use,
disclosure or transfer inadequate; and (iii) cause irreparable injury in a
short period of time. If the Company breaches any of its obligations with
respect to the use or confidentiality of the Software or Documentation,
XCorp shall be entitled to equitable relief to protect its interests
therein, including, but not limited to, preliminary and permanent
injunctive relief.
5.4 Survival. The Company's and XCorp's obligations under this
Section 5 will survive the termination of this Agreement or of any license
granted under this Agreement for whatever reason.
5.5 Records. All files, records, memoranda, and other documents
regarding former,
existing, or prospective customers of the Company or relating
in any manner
whatsoever to Confidential Information or the business of the
Company
(collectively ""Records"), whether prepared by XCorp or
otherwise coming into
its possession, shall be the exclusive property of the Company.
All Records shall
be immediately placed in the physical possession of the Company
upon the
termination of this Agreement, or at any other time specified
by the Board. The
retention and use by the XCorp of duplicates in any form of
Records after
termination of this Agreement is prohibited. This provision
excludes any
information or records pertaining to XCorp's downline
organization(s). All Company agents and customers acquired through these
agents and through the Company directly is the property of the Company.
The Company's customers will not be solicited to for any reason by anyone
except the Company. These customer and agent lists will remain strictly
confidential and always the property of the company
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5.6 Remedies. XCorp hereby recognizes and acknowledges that
irreparable injury or damage shall result to the Company in the event of a
breach or threatened breach by XCorp of any of the terms or provisions of
this Section 5, and Xcorp therefore agrees that the Company shall be
entitled to an injunction restraining XCorp from engaging in any activity
constituting such breach or threatened breach. Nothing contained herein
shall be construed as prohibiting the Company from pursuing any other
remedies available to the Company at law or in equity for such breach or
threatened breach, including, but not limited to, the recovery of damages
from XCorp and the termination of this engagement with the Company in
accordance with the terms of this Agreement
6. Termination. This Agreement may be terminated by either party
for any reason upon thirty (30) days' prior written notice and shall not be
considered a breach of default of this Agreement. In the event of
termination of this Agreement, XCorp agrees to deliver promptly to the
Company all equipment, notebooks, documents, memoranda, reports, files,
samples, books, correspondence, lists, or other written or graphic records,
and the like, relating to the Company's business, which are or have been in
its possession or under its control. If terminated, the stock issued to
XCorp will remain in the possession and ownership of XCorp and all photo
identification credentials issued by CLIA, subcontracted travel agency and
business cards issued by subcontracted travel agency to the Company's
Independent Agents must be returned.
7. Modifications. The Company may, from time to time, request that XCorp
incorporate certain features, enhancements or modifications into the
Software. XCorp may, in its sole discretion, undertake to incorporate such
changes. Upon writing, all expenses from such error corrections, bug
fixes, patches, updates or other modifications shall be shared equally and
jointly owned between both parties.
8. Intellectual Property. Any and all inventions, discoveries,
developments, and innovations not included in the original Software for the
Company, whether patentable or not, conceived by XCorp, either solely or in
concert with others, which (a) relate in any manner to the business affairs
and interests of XCorp, (b) are suggested by or results from its work, or
(c) result from the use of XCorp's time, material or facilities, are the
lawful property of XCorp. Certain material and information which has or
will come into the Company's possession or knowledge in connection with
Xcorp's work together may be marked or noted as "confidential". Disclosure
to or use by third parties of any such material or information will not be
disclosed.
9. Exclusivity. It is understood that XCorp can never build a travel
search engine or compete with the Company's product as described in the
Agreement, unless the Company files bankruptcy or closes its business.
10. First Rights of Refusal on Purchase. It is understood that in the
unlikely event that the Company should go bankrupt, the Company will send
notification to XCorp and offer the first right of refusal to purchase the
co-ownership of the technology for a total of seventy thousand dollars
($70,000) and five hundred thousand shares (500,000) that were issued to
XCorp per this Agreement.
11. Sale of Travel Software. It is agreed that in the unlikely event
that either party sells their share of the travel software, it must be
agreed upon by both parties in this Agreement. Any proceeds earned on the
sale of travel software will be split evenly between the both parties.
12. Protection of Software.
12.1. Proprietary Notices. Company agrees to respect and not to
remove, obliterate, or cancel from view any copyright, trademark,
confidentiality or other proprietary notice, xxxx or legend appearing on
any of the Software or output generated by the Software, and to reproduce
and include same on each copy of the Software.
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12.1.1. No Reverse Engineering. Company agrees not to modify,
reverse
engineer, disassemble, or decompile the Software,or any
portion thereof.
12.2. Ownership. Company futher acknowledges that all copies of
the Software in any form provided by XCorp or made by Company is fifty
percent (50%) co-owned property of both parties. Both parties shall have
any right, title, or interest to any such Software or copies thereof except
as provided in this Agreement, and further shall secure and protect all
Software andDocumentation consistent with maintenance of both parties'
proprietary rights therein.
13. Warranties, Superior Rights, and Indemnification.
13.1 Limited Warranty. XCorp agrees to a "best effort" in
producing all deliverables proposed, but cannot warrant any deliverables to
be free of errors and/or omissions. If the Company discovers and reports
any errors and/or omissions in deliverables provided to the Company, XCorp
agrees to provide corrected deliverables in a timely manner and shall be
the sole remedy. The Company agrees that XCorp shall not be liable for any
lost profits, consequential damages, or any claim against the Company by
any person or entity arising out of the use, misuse, defect in or failure
of any deliverables provided or developed hereunder.
13.2 Disclaimer of Warranties. XCORP DOES NOT REPRESENT OR
WARRANTY THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE
CORRECTED. THE WARRANTIES STATED IN SECTION 11.1 ABOVE ARE THE SOLE AND
THE EXCLUSIVE WARRANTIES OFFERED BY XCORP. THERE ARE NO OTHER WARRANTIES
RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
DESIGN, MERCHANT ABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF
XCORP IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF XCORP AS
SET FORTH HEREIN.
13.3 Limitation of Liability. THE COMPANY ACKNOWLEDGES AND
AGREES THAT THE CONSIDERATION WHICH XCORP IS CHARGING HEREUNDER DOES NOT
INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY XCORP OF THE RISK OF THE
COMPANY'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION
WITH THE COMPANY'S USE OF THE SOFTWARE AND DOCUMENTATION. ACCORDINGLY, THE
COMPANY AGREES THAT XCORP SHALL NOT BE RESPONSIBLE TO THE COMPANY FOR ANY
LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any
provision herein to the contract notwithstanding, the maximum liability of
XCorp to any person, firm or corporation whatsoever arising out of or in
the connection with any license, use or other employment of any software
delivered to the Company hereunder, whether such liability arises from any
claim based on breach or repudiation of contract, warranty, tort or
otherwise, shall in no case exceed the actual price paid to XCorp by the
company for the Software whose license, use, or other employment give rise
to the liability. The essential purpose of this provision is to limit the
potential liability of XCorp arising out of this Agreement. The parties
acknowledge that the limitations set forth in this Section 13 are integral
to the amount of consideration levied in connection with the license of the
Software and Documentation and any services rendered hereunder and that,
were XCorp to assume any futher liability other than as set forth herein,
such consideration would of necessity be set substantially higher.
14. Force Majuere. Neither the Company or XCorp shall be responsible for
delays or failure in performance resulting from acts beyond control of such
party, such as (but not limited to) acts of God, strikes, lockouts, riots,
acts of war, epidemics, changes in governmental regulations, fire,
communication line failures, power failures, earthquakes or other
disasters.
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15. Miscellaneous.
15.1. Notices. All notices, requests, demands, and other
communications required to or permitted to be given under this Agreement
shall be in writing addressed to the other party at the address set forth
below and shall be conclusively deemed to have been duly given when:
(a) Hand-delivered to the other party;
(b) Received when sent by telex or facsimile at the address and
number set forth below;
(c) The next business day after same have been deposited with
a national overnight delivery service, shipping prepaid,
addressed to the parties as set forth below with next
business day delivery guaranteed, provided that the sending
party receives a confirmation of delivery from the delivery
service provider; or
(d) Three business days after mailing if mailed from within the
continental United States by registered or certified mail,
return receipt requested, addressed to the parties as set
forth below.
Company: 000 Xxxxxxx Xxxxxx Xx. Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Facsimile Number (000) 000-0000
Xxxxxxx X. Xxxxxxx, President
XCorp: 00-000 Xxxxxx Xxxxxx
Xxxx, Xxxxxx, 00000
Facsimile Number (000) 000-0000
Xxxxx X. Xxxxxx, President
15.2. Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between or among the parties pertaining to
the subject matter contained in it and supercedes all prior and
contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement will
be binding unless executed in writing by all the parties or the applicable
parties to be bound by such amendment. No waiver of any of the provisions
of this Agreement will constitute a waiver of any other provision, whether
or not similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making the
waiver.
15.3. Assignment. This Agreement is a personal contract for
XCorp, and the rights and interests of XCorp hereunder may not be sold,
transferred, assigned, pledged or hypothecated except as otherwise
expressly permitted by the Company. The Company shall have the right to
assign this Agreement to any successor of substantially all of its business
or assets, and any such successor shall be bound by all of the provisions
hereof. However, the company will allow XCorp to designate any stock
allocations to the person(s) or entities of his choice.
15.4. Timelines. Milestone delivery dates suggested in this
Agreement are for illustrative purposes only, and may be adjusted depending
upon factors beyond the control of XCorp. Application requirements
invariably change during the course of the design process, to create better
and more functional application. Changes in or clarifications of
application requirements are not considered "errors and/or omissions" but
changes that are a normal part of the development process and should be
expected.
15.5. Governing Law. This Agreement and the rights and duties of
the parties hereto shall be construed and determined in accordance with the
laws of the State of California, and any and all actions to enforce the
provisions of this Agreement shall be brought in a court of competent
jurisdiction in Orange County, in the State of California, and in no other
place.
15.6. Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of final jurisdiction, it is the
intent of the parties that all other provisions of this Agreement be
construed to remain fully valid, enforceable, and binding on the parties.
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15.7. Effect of Headings. The subject headings of the sections
and subsections of this Agreement are included for convenience only and
will not affect the construction of any of its provisions.
15.8. Counterparts; Facsimile Execution. This Agreement may be
executed in any number of counterparts and all such counterparts taken
together shall be deemed to constitute one instrument. Delivery of an
executed counterpart of this Agreement by facsimile shall be equally as
effective as delivery of a manually executed counterpart of this Agreement.
Any party delivering an executed counterpart of this Agreement by facsimile
also shall deliver a manually executed counterpart of this Agreement, but
the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, or binding effect of this Agreement.
15.9. Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms
and conditions of this Agreement, that each party has had the benefit of
counsel, or has been advised to obtain counsel, and that each party has
freely agreed to be bound by the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above written.
__________________________________________________
Xxx Xxxxxxxx
Chief Executive Officer, eWorldMedia Inc.
Its
__________________________________________________
Xxxxx X. Xxxxxx
President, XCorp , LLC
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