EXHIBIT 10.15
TRUCKERSB2B VENDOR AGREEMENT
This Business to Business Vendor Agreement (the "Agreement") is entered
into this 15th day of April, 2004 (the "Effective Date") by and between
TruckersB2B, Inc., a Delaware corporation having its principal office
located at 0000 X. 00xx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("B2B") and
Power2ship, a Nevada corporation having its principal office located at 000
Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Vendor").
WHEREAS, B2B is an internet-based business-to-business program (the
"Program") for purposes of providing volume purchasing and savings to
company owned fleets and owner operator members ("Members") within the
transportation industry (the "Industry"); and
WHEREAS, Vendor is engaged in the business of providing logistic
applications, among other things, to businesses in the Industry; and
WHEREAS, the parties desire to enter into an agreement whereby Vendor
shall, among other things, offer certain of its goods and services to B2B's
Members through the Program;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
made herein, the parties agree as follows:
1. SERVICES. The services to be provided hereunder by B2B and Vendor
shall be as described on Exhibit "A" attached hereto and
incorporated herein (the "Services").
2. FINANCIAL TERMS. The financial terms agreed to between the parties
shall be as described on Exhibit "B" attached hereto and
incorporated herein (the "Financial Terms").
3. TERM. The term of this Agreement shall be for a period of one year
commencing on the Effective Date (the "Term"), subject to earlier
termination as herein provided. The Term will be automatically
extended for additional one year renewal periods, subject to
earlier termination as herein provided, provided that either party
may prevent such automatic renewal by delivery of written notice
to the other party at least 60 days prior to the end of the Term
or then current renewal period.
4. EVENTS OF DEFAULT; BREACH.
a. EVENTS OF DEFAULT. The occurrence of any of the following events
(individually, an "Event of Default" shall constitute an Event of
Default under this Agreement:
i. PAYMENT OF OBLIGATIONS UNDER THIS AGREEMENT. The failure by either
party to make any payment due to the other when such payment is
due and owing pursuant to the terms and conditions of this
Agreement.
ii. FAILURE TO PERFORM. The failure of any party to perform any term,
covenant or agreement contained in this Agreement in any material
respect.
iii. BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty of any party hereto made in this Agreement shall prove to
be false, or have been false in any material respect upon the date
when made.
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iv. INSOLVENCY, BANKRUPTCY, ETC.
(a). If any party hereto shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay or shall
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of such party or of any substantial part of the
assets of such party or shall commence any case or other proceeding
relating to such party under any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or shall
take any action to authorize or in furtherance of any of the
foregoing, or any such petition or application shall be filed or any
such case or other proceeding shall be commenced against such party
and such party shall indicate its approval thereof, consent thereto,
or acquiescence therein.
(b). If a decree or order shall be entered appointing any such trustee,
custodian, liquidator, or receiver, or adjudicating either party
hereto bankrupt or insolvent, or approving a petition in any such case
or other proceeding, or a decree or order for relief shall be entered
in respect of a party hereto in an involuntary case under Federal
bankruptcy laws as now or hereafter in effect.
B. NOTICE OF BREACH; RIGHT TO TERMINATE. If any Event of Default shall have
occurred, the non-defaulting party may notify the defaulting party in
writing (the "Notice of Default") of such Event of Default. If such Event
of Default has not been cured or waived in writing within 15 days of the
date of the defaulting party's receipt of the Notice of Default, the
non-defaulting party may, in its discretion, immediately terminate this
Agreement. The foregoing right to terminate is not intended to be exclusive
of any other remedy given hereunder or now or hereafter existing at law or
in equity or by statute or any other provision of law.
C. EFFECT OF TERMINATION. All rights and obligations of each party hereunder
with respect to transactions occurring prior to the effective date of any
termination of this Agreement shall survive any termination or expiration
of this Agreement for a period of 12 months, including, but not limited to,
any termination resulting from the material breach hereof by either party.
5. ARBITRATION. Any controversy, dispute or question arising out of, or in
connection with, or in relation to this Agreement or the interpretation,
performance or non-performance or breach thereof will be determined by
arbitration conducted in Delaware and pursuant to the laws of the State of
Delaware in accordance with the then existing commercial rules of the
American Arbitration Association. B2B and Vendor will each select one
arbitrator, and the two arbitrators will mutually select a third. Any such
arbitration shall be conducted within 60 days following either party's
notice of the commencement of arbitration proceedings. Any decision
rendered will be binding upon the parties, however, the arbitrators will
have no authority to grant any relief that is inconsistent with this
Agreement. The expenses of arbitration, including reasonable attorneys'
fees, will be borne by the non-prevailing party thereto. In the event any
party appeals the arbitrators' decision, the party who ultimately loses
shall pay all expenses of arbitration, including reasonable attorneys'
fees.
6. Indemnity. Each party hereto ("Indemnifying Party") hereby agrees to
indemnify and hold harmless the other party hereto, its employees,
subsidiaries, affiliates, directors, officers and agents (collectively, an
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"Indemnified Party"), from and against and in respect of any and all
charges, claims, damages, costs, judgments, expenses (including reasonable
attorneys' fees, costs, and disbursements), penalties, and liabilities of
any kind or nature which may be sustained or suffered by the Indemnified
Party by reason of, based upon, relating to, or arising out of the sale of
goods or services hereunder by the Indemnifying Party, or any breach of any
of the covenants, agreements, representations or warranties contained in
this Agreement by the Indemnifying Party. All rights and remedies hereunder
shall be cumulative and shall not interfere with or prevent the exercise of
any other right or remedy which may be available to the Indemnified Party.
The Indemnified Party shall promptly notify the Indemnifying Party in
writing of any claim, demand, suit, or proceeding with respect to which it
seeks indemnification, provided, however, that any failure by the
Indemnified Party to provide such notification to the Indemnifying Party
shall discharge the Indemnifying Party of its indemnification obligation
hereunder only to the extent that such failure prejudices the Indemnifying
Party, and the Indemnifying Party shall at all times have the sole right
and authority to control, defend, settle, or compromise such claim, demand,
suit, or proceeding with counsel of its own choosing which is reasonably
acceptable to the Indemnified Party and in such manner as it may deem
advisable; provided, however, that: (i) such settlement or compromise does
not contain any finding or admission of any violation of laws or any fault
on the part of the Indemnified Party, and has no effect on any other claims
that may be made by the Indemnified Party, and (ii) the sole relief
provided in such settlement or compromise is monetary damages that are paid
in full by the Indemnifying Party.
7. CONFIDENTIALITY. Vendor and B2B agree and covenant to each other that they
shall not, during the term of this Agreement or at any time after the
termination or expiration hereof, (i) disclose to any third party or (ii)
use other than during the proper performance of their duties hereunder, any
of the procedures, practices, dealings, or other information concerning the
business, finances, transactions, customer lists, or affairs of the other
party hereto which is disclosed by one party (the "Disclosing Party") to
the other party (the "Receiving Party"), (collectively, "Confidential
Information"), including any written information or other documentation
thereof. The provisions of this Section 7 shall not apply to (i)
information already in the possession of the Receiving Party as of the time
of the disclosure which was not given to the Receiving Party under a
then-existing obligation of confidentiality, (ii) information developed
independently by the Receiving Party without reference to, or use of, any
Confidential Information, (iii) information obtained by the Receiving Party
from a source other than the Disclosing Party not known by the Receiving
Party to be under any obligation of confidentiality to the Disclosing
Party, (iv) information which is publicly available when received, or which
thereafter becomes publicly available other than through any unauthorized
disclosure by, through, or on behalf of, the Receiving Party; (v)
disclosures required by law; and/or (vi) disclosures required to be made by
the Receiving Party in the ordinary course of business to attorneys,
accountants, and similar professionals retained to perform services for
either Vendor or B2B; provided, however, that all such disclosures shall be
made only on a "need to know" basis, shall be subject to the
confidentiality restrictions contained herein, and any such recipient shall
recognize such restrictions and agree to be bound by the terms hereof in
respect thereof, or otherwise be legally obligated to the Receiving Party
to maintain the confidentiality thereof. The parties hereto agree that in
the event of any breach or threatened breach by the Receiving Party of this
Section 7, the Disclosing Party shall be entitled to injunctive relief
against the Receiving Party to restrain and redress such breach or
threatened breach, which relief shall be in addition to any other relief
(including, but not limited to, monetary damages) available to the
Disclosing Party under this Agreement, at law, or in equity; it being
agreed that any such breach or threatened breach by the Receiving Party
shall cause the Disclosing Party irreparable harm for which the Disclosing
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Party shall have no adequate legal remedy.
8. USE OF TRADENAMES, SERVICEMARKS, ETC.
A. GENERAL. Neither party hereto is given nor will any party hereto claim in
any way any right to or in the servicemarks, logos, trademarks, or
tradenames (the "Marks") belonging to the other party or any affiliate,
except for the limited license provided hereunder.
B. USES BY THE PARTIES. Each party will use the Marks only in the manner and
to the extent specifically permitted in writing. All advertising,
publicity, signs or other materials employing in any way whatsoever the
Marks shall be submitted in writing to the parties hereto prior to such
use. Upon termination of this Agreement, each party shall, upon written
request, execute and deliver a written certification acknowledging that it
has ceased to use the Marks of the other party and that it has no further
interest or right therein.
9. NEWS RELEASES. Neither party shall make any news release or public
announcements, confirmations, or denials with respect to the terms and
conditions of all or any part of this Agreement without the prior review
and consent of the other party (such review to be promptly conducted and
such consent not to be unreasonably withheld), provided that either party
may make such disclosure of this Agreement and its terms as its legal
counsel deems necessary in connection with regulatory disclosure
requirements.
10. STATUS OF PARTIES. None of the provisions of this Agreement is intended to
create nor shall be deemed or construed to create any relationship between
the parties hereto other than that of independent entities contracting with
each other hereunder solely for the purpose of effecting the provisions of
this Agreement. Neither of the parties, nor any of their respective
employees, shall be construed to be the employer of the other.
11. LIMITATION OF LIABILITY. The liability of the parties hereto, and their
affiliates, under this Agreement shall be limited to direct damages proven.
12. GENERAL PROVISIONS.
A. WARRANTIES. B2B and Vendor respectively warrant that B2B and Vendor have
taken all necessary corporate action to approve this Agreement and to
authorize their respective officers to execute this Agreement and such
further documents as are necessary and proper to consummate the terms and
provisions of this Agreement; upon the execution hereof, this Agreement
will constitute the valid and legally binding obligation of B2B and Vendor,
enforceable in accordance with its terms. Vendor warrants that its products
shall comply with their functional specifications.
B. NOTICES. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next
business day, or (c) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification
of receipt. All communications shall be sent:
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If to B2B:
TruckersB2B, Inc.
Xxx Xxxxxxx President
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Vendor:
Power2Ship, Inc.
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000 Xxxxx Xxxxx Xx.
--------------------------------------
Xxxx Xxxxx, XX 00000
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Attn: Xxxxxxx Xxxxxx
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or such other address(es) as either party may hereafter designate in
writing from time to time. Any party may change its address for purposes of
this Agreement by giving notice of such change to the other party pursuant
to the terms of this Section.
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C. WAIVER. Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right
or power hereunder at any time or times be deemed a waiver or
relinquishment of such right or power at any time or times.
D. COMPLIANCE WITH LAWS. Each party agrees that all actions taken by it under
this Agreement will comply in all material respects with all applicable
laws, rules and regulations having the force and effect of law.
E. HEADINGS. 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.
F. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the local laws of the State of Delaware, without regard to
its choice of law rules of such State. The parties stipulate to the
jurisdiction and venue of the courts of Delaware.
G. COUNTERPARTS. 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.
H. ENTIRE AGREEMENT. This Agreement, including Exhibits A and B, constitutes
the entire agreement between the parties with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, oral or written, between the parties with respect to such
subject matter.
I. SEVERABILITY. In case one or more of the provisions contained in this
Agreement or any application thereof shall be invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of
the remaining provisions contained herein and any other application thereof
shall not in any way be affected or impaired thereby.
J. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Neither party shall assign this
Agreement, or delegate or transfer any right, interest, or obligation
hereunder, without the prior written consent of the other party hereto
(which consent shall not be unreasonably withheld), and any attempt to make
any such assignment, delegation, or transfer without the other party's
prior written consent shall be null and void. The rights and obligations of
each party hereto under this Agreement shall inure to the benefit of and
shall be binding upon the respective successors and assigns of each party
hereto.
K. AMENDMENT. This Agreement may be amended at any time and from time to time
by an instrument in writing signed by each party hereto, or their
respective successors or assigns.
L. DRAFT AGREEMENT NOT AN OFFER. This agreement shall be considered in draft
form only, and shall not be binding upon B2B unless and until it has been
executed by Xxx Xxxxxxx, President of B2B.
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IN WITNESS WHEREOF, B2B and Vendor have caused this Agreement to be executed
pursuant to appropriate authority duly given as of the day and year first
written above.
Company Name: Power2Ship, Inc. TRUCKERSB2B, INC.
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By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxx Xxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxx Name: Xxx Xxxxxxx
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Printed Title: President Title: President
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EXHIBIT "A"
SERVICES
Commencing the Effective Date,
1. DEFINITIONS: B2B agrees, on a non-exclusive basis, to refer prospective B2B
members with available power units to Vendor. For purposes of this
Agreement, each referral of a B2B member that Vendor has not independently
contacted or identified prior to receipt of such referral, shall be deemed
a Qualified referral.
2. VENDOR WILL:
A. Receive and process applications and may, in its sole discretion,
offer its services to B2B members.
B. Respond, within a mutually agreed upon amount of time, directly to all
B2B members whom are presented as sales leads by B2B.
C. Assign a point of contact whose function is to manage, coordinate, and
promote the B2B/Vendor relationship for the mutual benefit of both
parties.
D. Provide the resources required to develop the programming necessary to
integrate, launch, operate, and maintain Vendor's Web site link with
B2B's Web site so that Vendor's products are, or information as to how
to access Vendor's products is, immediately available to B2B's members
at B2B's Web site.
3. B2B will:
A. Assign a point of contact whose function is to manage, coordinate, and
promote the B2B/Vendor relationship for the mutual benefit of both
parties.
B. Provide the resources required to develop the programming necessary to
integrate, launch, operate, and maintain B2B's Web site link with
Vendor's Web site so that Vendor's products are, or information as to
how to access Vendor's products is, immediately available to B2B's
members at B2B's Web site.
C. In consideration of the payments and commissions described in Exhibit
B herein, B2B will actively promote and market Vendor's products and
services at an equivalent level to that of B2B's existing vendors at
no additional cost. These promotional and marketing activities will
include, but not be limited to Web promotion, Member newsletters,
direct mail, email, fax marketing, and inside sales representation to
B2B members.
D. Mention Vendor at least once a quarter in a blast email/fax to B2B
Members (including the initial product launch email/fax). e. Include a
description of Vendor's products and services within the B2B Web site
and the B2B Member booklet, which is distributed to all new members
and existing members after each communication with B2B sales.
4. SPECIAL MARKETING AND PROMOTIONAL PROGRAMS:
B2B and Vendor may jointly agree to create additional marketing and
promotional programs to increase the use of Vendor's products and services.
B2B and Vendor will jointly agree in advance, and in writing, as to the
type of programs to be offered including their character, timing, frequency
and expense.
EXHIBIT "B"
FINANCIAL TERMS
1. Credit Responsibility of Vendor: Vendor shall be responsible for review and
processing of any applications tendered by B2B members. Vendor shall be
responsible for all costs arising by way of the services provided hereunder
to B2B and its members, and assume responsibility for collection and
payment from B2B's members for all services sold or transactions processed
by Vendor. In this regard, all decisions by Vendor to provide goods and
services to any B2B member shall be made by Vendor in its sole discretion
and its sole credit risk.
2. COMMISSIONS ON VENDOR SERVICES:
a. For the term of this agreement, on a monthly basis, Vendor will pay to B2B
the greater of either 1) the Marketing Fee described in section 2.b. below
or 2) the Commissions net of any rebates paid to B2B Members described in
section 2.c. below.
b. Vendor will pay B2B a monthly fee ("Marketing Fee") based on the following:
i) For the term of this agreement, starting on the date B2B members receive
information about Vendor, the Marketing Fee will be $[*].
c. Vendor agrees to pay B2B on a monthly basis after being paid by the
shipper, a commission equal to [*]% of the net margin generated by
Qualified B2B members. i) B2B agrees to rebate to its Members, [*]% of the
income.
d. Should Vendor begin charging carriers for membership, Vendor agrees to pay
B2B, on a monthly basis, [*] % of the membership fees that Vendor receives
from Qualified B2B members.
3. Payment Terms: Vendor shall pay the amounts due, pursuant to section 3
above, to B2B not later than (15) days following the close of each month,
in available U.S. funds. A late charge of the lesser of 1.5% per month or
the maximum amount permitted by law will be added to past due accounts. All
reasonable costs and expenses, including but not limited to attorneys'
fees, court costs, and service charges incurred by B2B in collecting
payment will be an expense of and a charge to Vendor. Vendor waives any
existing and future claims and offsets against payments due hereunder, and
agrees to pay the amounts due.
4. Other Terms: Vendor agrees to account to B2B on a monthly basis or such
other regular periodic basis as hereinafter agreed to by the parties for
all gross revenue generated by B2B members. At a minimum, such monthly or
other regular periodic accounting shall indicate all commissions generated
by each B2B member.
*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24(b)-2.
