EXHIBIT 10.17
This Marketing Agreement (Agreement) dated this 15th day of March, 1999 is
entered into between IPVoice Communications, Inc., a Nevada Corporation, known
as (IPVC) Xxxxxxx X. Xxxxx. residing at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000, known as TruePartner Master Agent (TPMA).
1. Non-Exclusive Territory grants to TPMA the non-exclusive right to market,
advertise and sell the Service as defined in Appendix A (if applicable). As
used in this Agreement, Service means domestic and international calling
services, programs such as TruePartners Master Distributors and Master
Agents offered through IPVC on the date of this Agreement, specifically,
TrueConnect Products, and Services and recruiting Distributors and Agents
to sell or use international and domestic origination and termination, 800
international service and International outbound service. TPMA shall also
have the non-exclusive right to market, advertise and sell the services to
be offered through IPVC in the future, the compensation for such activities
to be set by agreement of the parties when such services are made
available. It is acknowledged that although the TPMA is given a right to
market the Services within the Territory as an Agent of IPVC, TPMA also is
hereby granted the authority to market the Service with the Territory using
other Agents. The identical terms and conditions of this agreement will
apply to agents or partners of the TPMA.
2. TPMA's Obligations
TPMA shall diligently promote the Programs or Service within the Territory.
TPMA also is granted the authority to hire agents or employees to comply
with the obligation. TPMA shall supply documentation to Agents and
Distributors on approved promotional materials to be translated into the
major languages spoken within the Territory. TPMA agents or partners will
comply with the terms and limitations of this Agreement. TPMA's agents,
distributors or partners will comply with the terms and limitations of this
Agreement.
3. Compensation
In consideration for marketing, advertising, recruiting and selling the
Services and Programs as set above, the TPMA shall be paid a royalty as set
forth in Appendix B.
4. Billing and Collecting
A. Collecting will be by Pre-Payment or pre-approved Invoicing with terms
to be set forth at the time of contract. IPVC will grant the Agent prior
credit approval before extending terms to the customer. If it is determined
by IPVC that the customer is a credit risk, TPMA has the option of posting
a Letter of Credit with IPVC on behalf of the customer, or requiring the
customer to post a Letter of Credit directly with IPVC.
B. IPVC shall, at the end of a thirty-day period, provide TPMA with a
compilation of accrued charges. Depending on the cycle of payment, IPVC
will forward to TPMA a complete listing of all revenues credited to the
Agent with the associated calculation of TPMA's royalty. In no case shall
the royalty be held by IPVC for longer than thirty (30) days after either
the two weeks or month-ending account receivable cycle.
5. Letter of Credit
TPMA agrees to provide an Irrevocable Letter of Credit (LOC.) from a
mutually agreed upon financial institution for one and one-half times the
estimated monthly billing for those customers that IPVC will not extend
credit to. The LOC shall be adjusted periodically using IPVC procedures to
account for variations in the value of xxxxxxxx. In no case shall the LOC
be less than one and one-half times the estimated monthly billing. The LOC
shall state that if payment is not received by IPVC within 30 calendar
days, IPVC shall have the ability to draw against the LOC for the
outstanding amount due IPVC (usage charge less TPMA's royalty).
6. Third Party Infringements
TPMA shall have the sole right, in its discretion, to initiate, prosecute
or settle legal actions against any person infringing any intellectual
property rights to the Services within the Territory (except any
settlement, which would have the effect of denying to IPVC the benefits of
this Agreement). Each party shall promptly notify the other of any actual
or potential infringement, which becomes known to it. Should TPMA fail to
take appropriate and diligent action with respect to any such infringement
by a third person, then IPVC shall have the right to take such action, at
its own expense and in its own name or in the name of TPMA and the right to
enforce and collect any judgment thereon. Each party shall cooperate
(including appearance for testimony at trials and depositions) with the
other party as such party may reasonably request in regard to any legal
action brought by a party pursuant to this Section. The party requesting
such cooperation shall pay all out-of-pocket costs of the party providing
such cooperation.
7. Confidentiality
Neither party shall disclose any trade secrets (if it has been designated
as such in writing at the time of its original disclosure by one party to
the other) to persons other than those bound by the terms of this Agreement
or persons who have executed Confidentiality Agreements which require such
persons to maintain the confidentiality of such trade secrets to
substantially the same extent as required by this Section. Nothing in the
foregoing sentence shall prohibit disclosure of any information, which is
publicly known at or after the time of disclosure, which is already known
to the recipient, or which is required to be disclosed by law.
8. Agreement Not to Compete
A. TPMA agrees that during the period commencing on the date of this
Agreement and continuing until the date three (3) years after this
Agreement is terminated, it will not directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, investor, or financier or in any other
individual or representative capacity, engage or participate in any
business which competes with the business of IPVC or any TPMA supplying the
Services to IPVC within any country being serviced by IPVC or any TPMA
supplying the Service to IPVC at the time this Agreement is terminated.
TPMA covenants that during the term referenced above, it will not, either
for itself or for any other person or entity, except as may be required by
the terms of this Agreement either directly or indirectly: (1) call on,
solicit, take away or hire any of customers, employees principals, lessors,
distributor or suppliers of IPVC or any TPMA supplying the Services to
IPVC, (2) acquire or attempt to acquire rights for providing any product or
services in competition with IPVC or any TPMA supplying the Services to
IPVC, or (3) engage in any act which would interfere with or harm any
business relationship with any customer, lessor, employee, principal or
supplier of IPVC or any TPMA supplying the Services to IPVC.
B. TPMA and IPVC agree that a breach of the covenants described in this
Section will result in substantial damages to IPVC, which would be
difficult, if not impossible to ascertain. TPMA agrees that in the event of
such a breach or threatened breach, IPVC shall have the right to a
Restraining Order and Injunction, both temporary and permanent, enjoining
and restraining any such breach or threatened breach. Such injunctive
relief shall be in addition to any other remedies available to IPVC at law
or in equity. Nothing in this Agreement shall be construed to prohibit or
prevent IPVC from initiating an action or otherwise recovering any damages
as may be sustained as a result of the breach or threatened breach by the
Company. TPMA also agrees that IPVC may pursue any remedy available to it,
and the pursuit of any one such remedy at any time will not be deemed an
election of remedies or waiver of right to pursue any other remedy.
C. Should TPMA breach or violate any term of this Agreement at any time
when monies are due and owing to it from IPVC, then all unpaid Monies due
TPMA shall be subject to offset by the amount of any damages incurred by
IPVC, the amount of any attorney fees and other related expenses incurred
by IPVC in enforcing this Agreement, and by the amount of any other claims
IPVC may have against TPMA.
9. Independent Contractor
The parties to this Agreement are independent contractors only and nothing
in this Agreement shall be construed as establishing any other relationship
between the parties.
10. Warranty
Each party represents and warrants that it has the power and authority to
execute and deliver, and to perform its obligations under this Agreement,
and that neither the execution or delivery of this Agreement nor the
performance of its obligations hereunder will constitute a breach of the
terms or provisions of any contract or violate any law or the rights of any
third party.
11. Term and Termination
The term of this Agreement will commence as of the date first above written
and shall continue until the third anniversary of the date of its
execution. If either TPMA or IPVC commits a material breach of any material
provision of this Agreement, and such breach is not cured within ninety
(90) days after the date of which notice of breach is provided to the
breaching party, the non- breaching party shall have the right to terminate
this Agreement upon further thirty (30) day written notice.
12. Governing Law
This Agreement shall be governed and construed in accordance with the laws
of Florida, USA (excluding any conflicts with laws or rules) and each party
submits to the jurisdiction of any state, country or federal court in the
state of Florida, USA.
13. Entire Agreement
This Agreement sets forth the entire Agreement or any understanding between
the parties as to its subject matter and supersedes all other documents,
verbal commitments or understandings made before the conclusion of this
Agreement, and none of the terms of this Agreement may be amended or
modified except in writing signed by all the parties.
14. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party except that any party may assign this
Agreement to any successor corporation (including the surviving corporation
in any consolidation or merger) or assignee of all or substantially all of
its business. In the event of such an assignment, the assigning party shall
remain jointly and severally liable with the assignee for the full and
and timely performance by such assignee of the assigning party's
obligations hereunder.
15. Notices
Any notice, consent or approval required or permitted under this Agreement
shall be in writing and shall be delivered to the following addresses (i)
personally by hand (ii) by certified mail, postage prepaid with return
receipt requested, or (iii) by fax confirmed by such certified mail:
If to TPMA: Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
E-mail address
Phone number: 000.000.0000
Fax number: 000.000.0000
If to: IPVoice Communications, Inc.
0000 Xxxxx Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
E-mail Address: xxxx@xxxxxxx.xxx
Phone Number: 000.000.0000
Fax Number: 000.000.0000
All notices shall be deemed effective upon the date delivered by hand or
sent by fax, or if mailed, as of the date which is five (5) days after the
date of mailing. Either party may change its address for notice purposes by
notifying the other party of such changes of address in accordance with the
foregoing.
16. Waivers
No waiver of any term or condition of this Agreement shall be valid except
when made by an instrument in writing expressly waiving such term or
condition signed by the waiving party. A waiver by any party of any term or
condition of this Agreement in one instance shall not be deemed a waiver of
such term or condition for any similar instance in the future or of any
subsequent breach. All rights, remedies obligations and agreements
contained in this Agreement shall be cumulative and not in limitation of
any other remedy, right, obligation or agreement of any other party.
17. Severability
If any part of this Agreement is contrary to, prohibited by or deemed
invalid under the laws of any jurisdiction, such provision shall, as to
such jurisdiction be inapplicable and deemed omitted to the extent so
contrary, prohibited or invalid, without invalidation or otherwise
affecting the validity or enforceability of such provision in any other
jurisdiction.
18. Specific Performance
The parties acknowledge that there may be no adequate remedy at law for any
violation of Sections 1, 7 and 8 of this Agreement, and that in addition to
any other remedies which might be available, such Sections shall be
specifically enforceable in accordance with their terms.
19. Headings
Headings contained in this Agreement are for convenience of reference only
and shall not affect the meaning or construction under the provision of
this Agreement.
20. Voluntary Agreement
Each party warrants that before signing this Agreement such party has been
fully advised of its contents and meaning, has had legal counsel explain
the meaning and legal significance of each and every provision therein, and
executes this Agreement freely and voluntarily with full knowledge and
understanding of its contents.
21. Cumulative Remedies
No remedies or election hereunder shall be deemed exclusive, but shall,
whenever possible, be cumulative with all other remedies at law or in
equity.
22. Attorney Fees
In the event any action, proceeding or litigation, judicial or
non-judicial, arises out of the subject matter of this Agreement the
prevailing party shall be entitled to payment of all costs, expenses and
attorney fees incurred.
23. Successor/Assigns
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, personal
representative and assigns. The parties each agree to take such further
action and deliver such ancillary document as may be reasonable or
necessary in order to carry out the terms and provision of this Agreement.
24. Authority
Each individual executing this Agreement in a representative capacity
warrants to the other party that such person has sufficient authority to
bind the party on behalf of whom they are executing this document.
25. Duplicate Originals
Any fully executed copy of this Agreement shall be deemed for all purposes
as a duplicate original. All originals and duplicate must be signed before
a notary or will be considered invalid.
EXECUTED by the parties effective as of the date first written above.
IPVoice Communications, Inc.
By: /s/ Xxxxxxx X. Will
-------------------------
President and COO
State of )
County of ) ss.
Country of )
Subscribed and sworn to under oath before me on this _____day of ___________,
_______.
------------------------
Notary Public
My Commission Expires:
By:/s/Xxxxxxx X. Xxxxx
-----------------------
Title:
State of )
County of ) ss.
Country of )
Subscribed and sworn to under oath before me on this _____day of ___________,
_______.
------------------------
Notary Public
My Commission Expires
Appendix A
Non-Exclusivity of Territory
Or
Exclusivity of Territory
1. IPVoice Communications Inc. and TPMA have agreed that IPVC grants
non-exclusivity of territory to TPMA.
INIT _______INIT _______
2. IPVoice Communications Inc. and TPMA have agreed that IPVC grants
exclusivity to TPMA in the Following Territory. TPMA does hereby purchase
the exclusive right to market IPVC services in the chosen country. All
originating traffic, regardless of who is responsible for the sale, will
roll to the TPMA revenue stream with exclusivity for its country, state or
city. The fee set forth will entitle TPMA to:
-Exclusive
-A Dedicated Sales and Service Contact
-On-site training for sales and service
-Training Manuals, changes and updates as they become available
-Updates on IPVC competitive advantage
-Market Overview and updates
-Detailed information on IPVC products and services
-Wholesale Pricing
-Billing and Collection guidelines
-News Latter and future product development charts
-Technical Assist
-New Letters and future product development changes
-Commission on terminating traffic from other Agents
-Yearly Agent meetings
The purchase of the exclusive territory will vary by country and market and has
been determined as follows:
1.) Exclusive Territory is granted to the TPMA and is as follows:
Territory Signing Fee
a) ________ $________
b) ________ $________
For the right to market and advertise the Services and set up an office. As
used in this Agreement, "Service" shall mean domestic, intra-country and
international calling services offered through the date of this Agreement,
specifically origination and termination in designated calling patterns,
international and calling card. TPMA shall also have the exclusive right to
market, advertise, and sell the services to be offered through IPVC in the
Appendix A (Continued)
Non-Exclusivity of Territory
Or
Exclusivity of Territory
future, the compensation for such activities to be set by agreement of the
parties as set forth in Appendix B.
It is acknowledged that although TPMA is granted (a) the right to market a
geographic territory (b) Product and Services, as an Agent on behalf of
IPVC, IPVC also grants authority to TPMA to market said Territory by using
TPMA's own agents or direct sales staff.
TPMA Obligations
TPMA shall diligently promote the Service within the Territory. TPMA has
the authority to hire agents or employees to comply with the obligations at
the sole expense of TPMA. TPMA shall have pre-approved promotional
materials which must be translated into the major languages spoken within
the Territory at the cost of TPMA. TPMA's agents or partners will comply
with the terms and limitations of this agreement. TPMA is responsible for
setting up an office conclusive to where customer calls can be answered,
"IPVoice Communications (country name)," and that sales and service can be
handled in a professional manner.
TPMA understands and agrees that Purchase price is due and payable at the
signing of this contract.
INIT _______INIT _______
Appendix B
Agent Compensation
This Appendix B, dated March 15, 1999, by and between IPVoice Communications,
Inc. ("IPVC"), a Nevada Corporation, and Xxxxxxx X. Xxxxx (Agent), is made part
of the Agreement between IPVC and TPMA dated March 15, 1999 (the "Agreement:).
IPVC agrees to pay the following royalties, fees, and stocks for the country(s)
listed in Appendix A and only to the TPMA, at the times set forth in the
Agreement.
A. Pre-Sale and Recruiting TruePartners Master Distributors and Agents.
Monthly Draw
None
EQUIPMENT SALES
A. TrueConnect Gateway Sales for Domestic and International
TPMA Rate Commission
Per Gateway 2% of Equipment Sales
Added Gateways 1%
T/1 and/or E/1 Cards 2%
B. TrueConnect Gateway or TrueWeb Sales No Network applications
TPMA Rate: Commission
Per Site 5% of IPVC's charges per call record
This Commission will not be paid on clients, agents, customer, partners,
and distributors when network is used.and/or per minute commissions are
paid. This commission is only applicable on TrueConnect Gateway equipment
and Software licensing contracts apply.
C. Internet Origination and Terminations
Rate
For all minutes (originating and terminating) of IPVC's Internet Network
and on all clients, sub-agents and Master Distributors signed by TPMA on
behalf of IPVC, TPMA will be paid on a per minute basis (to be determined
by location).
D. International and Domestic Carrier Network
Rate:
For all calls originating and/or terminating over any network
other than IPVC's Internet network, and for all clients,
sub-agents and TPMDs signed by TPMA on behalf of IPVC, TPMA
will receive a percentage on a per minute basis.
Commission percentages paid for Agent Services sold (if applicable) in countries
other than those in Paragraph A, B and C above are country specific and will be
added on a country by country basis to this Agreement as deemed appropriate by
Agent and IPVC.
Should market conditions change IPVC reserves the right to change the commission
structure.
"Net Revenues" mean gross revenues actually received by IPVC or the Agent in
respect of sales of the services defined in the Agreement, services less IPVC's
cost of, but not limited to, taxes, duties, discounts, license fees, equipment,
network, labor, refunds and administrative. Both IPVC and Agent shall determine
rates for the Service switching the Territory.
In order to stay competitive and maximize return, IPVC requires in the event of
an 800-toll free access number being used, the number be changed periodically.
Agent specifically agrees to contact customers and make the required number
changes within two weeks of notice by IPVC. IPVC will give a minimum of two
weeks notice after which number change is required. IPVC may invalidate this
Agreement if Agent fails to make the required changes without agreed written
notice from Agent for delays.
IPVoice Communications, Inc.
By:/s/ Xxxxxxx X. Will
------------------------
Name: Xxxxxxx X. Will
Title: President and C.O.O
By: /s/Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title:
