Exhibit 10.13
[QCOMM LOGO]
Q Comm, Inc. Services Agreement
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This Agreement (the "Agreement") is entered into this 29th day of June, 2000
(the "Execution Date") between Q Comm, Inc. ("Q Comm") with offices at 0000
Xxxxx 0000 Xxxx Xxxx, XX 00000-0000 and CellCards of Illinois, LLC ("Broker")
with offices at 0000 Xxxxx Xxxx Xxxxx 00 Xxx Xxxxxxx, XX 00000.
WITNESSETH:
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WHEREAS, Q Comm offers a comprehensive prepaid management system
through the Qxpress(TM) Point-of-Sale activation terminal ("Qxpress(TM)") and
the Q Comm telecommunications network ("Qxpress Services"); and
WHEREAS, Broker desires to purchase Q Comm services, including
activated calling cards in the form of personal identification numbers
(collectively the "PINs") as will be generated on-demand by Qxpress(TM); and
WHEREAS, Q Comm desires to obtain Broker as an independent agent to
market and promote Qxpress(TM) and Qxpress(TM) Services and Broker desires to
provide such services to Q Comm, subject to the terms, conditions and
specifications set forth in this Agreement; and
WHEREAS, the parties acknowledge that this Agreement is binding and
enforceable and agree to abide by the promises and covenants contained herein;
and
NOW, THEREFORE, in consideration of the premises, covenants and mutual
promises hereinafter set forth and intending to be legally bound thereby, the
parties agree to the following terms, conditions and specifications:
I. SERVICES PROVIDED:
Q Comm will provide the Qxpress(TM) terminal to organizations
("Merchants") contracted by Broker in accordance with the terms specified in
Schedule "A"
Q Comm agrees to sell to Broker and Broker agrees to purchase
Qxpress(TM) PINs in accordance with the terms and conditions set forth herein.
Qxpress(TM) provides access to prepaid calling and enhanced card services,
including network provisioning for interstate, international and, where
permitted by applicable regulations, intrastate transmission, as well as
switching facilities needed to originate, transmit, and terminate Card traffic.
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II. TERM:
The term of this agreement is One (1) year. If, at the end of this
term, both Q Comm and Broker wish to renew the agreement, they may do so. This
agreement may only be terminated if the terms of this agreement are not being
met. If terminated by the Broker, a thirty (30) day prior written notice to the
other party is required. Broker shall, upon termination of this Agreement, and
at the request of Q Comm, Inc. arrange for the return of all Qxpress(TM)
terminals in Brokers possession at the expense to the Broker unless the client
using the Qxpress(TM) terminal has been contracted under the Q Comm Inc,
"SERVICES AND RENTAL AGREEMENT" and ACH Agreement. If return is requested by Q
Comm, Inc., all Qxpress(TM) terminals must be returned within twenty-five (25)
days of the date of termination. If the terminals are not received within that
time frame the Broker agrees to pay $318.00 per unit payable upon demand. Broker
shall indemnify and hold Q Comm harmless from any and all claims, actions,
losses and damages arising from the attempted use by third parties or end-users.
The terms and conditions of this Agreement shall remain in full force and effect
after the termination date for all Qxpress(TM) terminals contracted by Broker
and activated by Q Comm before the termination date.
III. COMPENSATION:
Q Comm shall pay Broker, and Broker shall be entitled to receive,
commissions and compensations as outlined in "SCHEDULE D" attached to this
agreement. Broker will receive it's agreed upon percentage, based upon the
customer retail volume, each week following the ACH. Broker agrees to all fees,
commissions, and minimum performance requirements in accordance with schedules
"A" and "B" which are subject to change with five (5) day notice to the Broker.
IV. DEPOSIT/CANCELLATION:
No Deposit is required with the "SERVICES AND RENTAL AGREEMENT" and ACH
Agreement. However, a minimum performance of $150.00 gross card revenue per
terminal per week is required, and if not a service fee will be assessed through
the ACH agreement. In addition, a Qxpress(TM) restocking fee of $25.00 applies
to all returned terminals except for performance recalls by Q Comm, Inc.. If the
merchant fails to maintain such average sales volume Q Comm Inc. may, at its
sole discretion and without liability, immediately terminate the "SERVICES AND
RENTAL AGREEMENT".
V. RATE CHANGES:
The Service rates shall be subject to all applicable carrier tariffs. Q
Comm shall have the right to change the Service rates at any time for any reason
in Q Comm's sole discretion with five (5) day prior written notification of the
change to Broker. Broker acknowledges that a rate change will modify the minute
availability on the prepaid calling card.
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VI. ORDERS:
The original, signed copies of the "SERVICES AND RENTAL AGREEMENT" and
ACH Agreement are required from the Broker for all Merchant orders prior to
shipping and/or activating a Q Comm Qxpress(TM) terminal. All orders shall be
subject to Q Comm's approval, as well as Q Comm's "SERVICES AND RENTAL
AGREEMENT" and ACH Agreement, unless otherwise established; a copy of which is
attached hereto as Schedule "B".
VII. RETURN GOODS POLICY:
All returned goods must be authorized by Q Comm Inc. using the Request
for Return Goods Authorization "RGA" Request form found in SCHEDULE "E". All
returned goods commissions, Broker and Merchant, will be charged back to the
appropriate commissioned party on the next ACH cycle. The Broker will be
responsible for the Merchant interface on all claims. This policy does not apply
to phone cards or airtime cards as there is a no refund-no return policy on all
cards generated by Qxpress(TM). A restocking fee of 15% will be applied to all
returned goods. This fee will be deducted from the ACH credit on the cycle
following the receipt of goods. The RGA # must be visible on all returned goods
in order to be accepted.
VIII. ACTIVATION:
Broker and/or Merchant shall pay for all activated calling cards via
ACH program, which will debit the designated merchant account every week for the
previous week's sales.
VIX. OBLIGATIONS OF Q Comm:
A. Q Comm shall provide the Qxpress(TM) terminal to Broker's Merchants
subject to the Q Comm, Inc. acceptance of the "SERVICES AND RENTAL AGREEMENT"
and the ACH Agreement.
B. Q Comm may use multiple carriers to provide the telecom prepaid
services.
C. Q Comm shall approve in writing all point of purchase materials and
prepaid calling card language and artwork used by Broker.
D. Q Comm shall be solely responsible for developing and implementing
the terms and conditions for use of Qxpress(TM).
X. OBLIGATIONS OF BROKER:
A. Broker is required to adhere to the following performance minimums:
1) Minimum performances, outlined in the "SERVICES AND RENTAL
AGREEMENT," must be maintained quarterly by 75 percent of the
Qxpress(TM) terminals placed by Q Comm, Inc. in Broker's
behalf.
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2) Broker must place a minimum of sixty (60) Qxpress(TM)terminals
in each twelve (12) month period.
3) If these performance minimums are not met, Q Comm, Inc. may
terminate the Broker Agreement at any time.
B. If this Agreement is terminated by either party, Q Comm, Inc. will
continue to support the existing Qxpress(TM) terminals under all existing
contract terms for a period of 180 days from the date of notice as defined in
paragraph XVIII ("Notices").
C. Broker accepts the "SERVICES AND RENTAL AGREEMENT" and ACH Agreement
in effect at the time of this Agreement. (Schedule "B"). Q Comm's "SERVICES AND
RENTAL AGREEMENT" and ACH Agreement are subject to change with five (5) day
notice to Broker.
D. Broker must obtain Q Comm's written approval of all content and
artwork for any prepaid calling cards, packaging and point-of-purchase materials
as a condition to activation of PINs. Q Comm shall have the right to change,
add, or modify the copy in any way. All modifications by Broker to pre-approved
content or artwork must also be approved in writing by Q Comm.
E. Q Comm Prepaid Phone Card "Custom/Private Label Card Terms &
Conditions" (Schedule "C") must be clearly disclosed on the back of each custom
prepaid calling card, insert or point-of-purchase material.
XI. DELIVERY, TITLE, RISK OF LOSS, SECURITY AND FRAUD CONTROL:
A. Broker, upon taking delivery of the Qxpress(TM) terminal from Q
Comm, shall bear the risk of loss (unless contracted under the Q Comm, Inc.
"SERVICES AND RENTAL AGREEMENT") and be solely responsible for all losses,
damages, claims and liabilities caused by:
1. PINs, active cards, and inactive cards which are
mishandled, damaged or stolen;
B. Q Comm shall collect all revenues from retailers as per the ACH
agreement enclosed in Schedule "B".
C. Broker shall bear the risk of loss for fraud, theft or misuse of the
Qxpress(TM) terminal by Broker's employees.
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D. The parties agree that, upon activation and authorization of sale by
the Qxpress(TM) terminal, the Merchant shall be responsible for the following as
per the "SERVICES AND RENTAL AGREEMENT":
1. all lost and/or stolen cards, for which no refunds or credits
will be issued by Q Comm;
2. use of activated Calling Cards generated by Qxpress(TM)
(including calls to wrong numbers), regardless of whether such
use occurred by the Merchant, a person authorized by the end
user to use the Qxpress(TM) terminal, or by a person not
authorized by end user; and
3. improper activation by Merchant of incorrect unit amounts,
improper decrementation by Q Comm or transmission difficulty.
E. Q Comm shall, in its sole discretion, have the right to immediately
deactivate any particular Qxpress(TM) terminal, PIN or batches of PINs in the
event Q Comm reasonably believes that same have been improperly or fraudulently
activated.
F. All shipments are F.O.B. Utah.
XII. FORCE MAJEURE:
Q Comm shall not be liable for any delay or nonperformance under the
terms of this Agreement due to causes beyond its control, including but not
limited to, acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections,
fires, explosions, earthquakes, nuclear accidents, floods, strikes, power
blackouts, severe weather conditions, failure by Broker to fulfill any of its
obligations under this Agreement, acts of third parties, or acts or omissions of
common carriers (collectively referred to as "Force Majeure Conditions")
XIII. INDEMNIFICATION AND LIMITATIONS OF LIABILITY
A. Q Comm shall exercise its best efforts to avoid network service
interruption. However, in the event of a network service interruption or
equipment failure, Q Comm's liability hereunder shall be limited to the retail
cost of the PIN subject to the interruption, provided that such interruption was
caused solely by Q Comm's willful act or omission or its negligence. Q Comm
shall not be liable for any interruption caused by the negligence or any act or
omission of Broker, the Card user, carrier, switch provider or any third party.
B. Except as otherwise stated herein each party will defend, indemnify
and hold harmless the other party, its owners, parents, affiliates,
subsidiaries, brokers, directors, officers, shareholders, and employees from and
against any and all losses, costs, claims, awards, liabilities, damages, and
expenses (including reasonable attorneys fees) brought or claimed by third
parties, relating to or arising out of the negligence or willful misconduct of
either party in the performance of this Agreement.
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C. Q COMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE OR OTHER WARRANTY OF QUALITY, EXCEPT AS EXPRESSLY PROVIDED IN THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IN NO EVENT SHALL Q Comm BE LIABLE TO BROKER
OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS.
XIV. INTELLECTUAL PROPERTY; USE OF MARKS:
A. Broker acknowledges Q Comm's exclusive ownership of all Q Comm
designated trademarks, service marks and other symbols (the "Marks") relating to
the PIN and agrees not to assume any rights in the Marks.
B. It is understood and agreed by both parties that nothing in this
agreement is intended to grant to Broker the right to engage in the business of
offering goods or services using Q Comm's trade name, trademark, service xxxx,
logotype, advertising, or other commercial symbol or related characteristics.
XV. CONFIDENTIALITY:
Both parties agree that all of the terms and conditions of this
Agreement are confidential. Press releases or other public announcements
("Public Releases") by either party concerning the existence of this Agreement,
terms of this Agreement, or the services to be provided under this Agreement may
not be disclosed publicly, other than to service vendors for the purpose of
effectuating this Agreement, without the prior written consent of both Q Comm
and Broker.
XVI. ASSIGNMENT:
Q Comm may at any time assign its rights, obligations or duties, in
whole or in part, or any other interest hereunder without Broker's approval.
Broker may not assign its rights, obligations or duties, in whole or in part, or
any other interest hereunder without the prior written consent of Q Comm.
XVII. INJUNCTIVE RELIEF:
Broker hereby agrees that the remedy at law for any breach or
threatened breach by it of the covenants in this Agreement may be inadequate and
that Q Comm would suffer irreparable harm; therefore, it is mutually agreed and
stipulated by the parties hereto, that in addition to any other remedies at law
or in equity which Q Comm may have, Q Comm shall be entitled to obtain in a
court of law and/or equity a temporary and/or permanent injunction restraining
Broker from a further violation or breach of such covenants.
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XVIII. ATTORNEY'S FEES:
In the event that an action at law or in equity is brought by Q Comm to
enforce the terms and conditions of this Agreement, or to prevent a breach
thereof, and Q Comm is the prevailing party, Broker shall be liable for Q Comm's
reasonable attorneys fees and costs in addition to any other relief awarded to Q
Comm pursuant to such action.
XVIX. NOTICES:
Notices required to be given under this Agreement shall be effective
when mailed by prepaid certified mail return receipt requested to:
Q Comm International, Inc.
0000 Xxxxx 0000 Xxxx
Xxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxxx, President
CellCards of Illinois, LLC
0000 Xxxxx Xxxx, Xxxxx 00
Xxx Xxxxxxx, XX 00000
Xxxxxxx Xxxxxx
XX. GENERAL:
A. This Agreement constitutes the entire understanding between Q Comm
and Broker and supersedes any and all prior or contemporaneous oral or written
statements and representations made by either party to the other.
B. Failure on the part of either party to enforce any provision of this
Agreement in any one instance shall not be construed as a general waiver or
relinquishment of the right to enforce such provision.
C. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected thereby.
D. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts shall have been signed by each party and delivered
to the other party. The undersigned represent and warrant that they are duly
authorized by the parties to enter into and sign this Agreement and by such
signatures do bind the parties to the terms of this Agreement.
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E. This Agreement shall be governed by Utah law, without giving effect
to its choice of law provisions.
XXI. NON-DISCLOSURE
A. During the course of this Agreement, Broker shall become aware of
certain methods, practices, and procedures with which Q Comm conducts its
business, all of which Broker and Q Comm agree are proprietary information and
as such are trade secrets.
B. Broker will not at any time, either during this Agreement or
thereafter divulge, furnish, or make available, either directly or indirectly,
to any person, firm, corporation or other entity any proprietary information
used by Q Comm. Broker agrees that all such matters and information shall be
kept strictly and absolutely confidential.
C. Broker acknowledges that a breach of any of the provisions of this
Agreement may result in continuing and irreparable damages to Q Comm for which
there may be no adequate remedy at law and that Q Comm in addition to other
relief available to Q Comm shall be entitled to the issuance of an injunction
restraining Broker from committing or continuing and breach of this Agreement.
IN WITNESS WHEREOF, the parties agree that this Agreement sets forth the
complete understanding of the parties and may not be modified except in writing
signed by both parties.
CellCards of Illinois, L.L.C. Q Comm International, Inc.
By:/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------- ----------------------------------------------------------
Its: President Its: President
-------------------------------- ----------------------------------------------------------
Date: June 29, 2000 Date: June 29, 2000
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Phone #: Phone #: (000) 000-0000
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SCHEDULE "A"
1. Broker will contract each Merchant location to be installed with
Qxpress(TM).
2. Broker will receive its agreed upon percentage each Friday following the
Monday ACH. Percentage based on schedule "D".
3. Q Comm will provide the Qxpress(TM) terminal at its expense.
4. Q Comm will provide installation and training support for each approved
location.
5. Q Comm will arrange for Internet access for activity reporting on all
locations installed under this agreement.
6. Each location (where a Qxpress(TM) terminal has been installed) must
maintain a $150/week minimum. If these minimums are not met each week, a
weekly service fee of $6.95 will be deducted from the Merchants ACH
account. This service fee will commence the second Monday following
shipment of the Qxpress(TM) terminal.
7. For product rates and commissions see Schedule "D".
8. Q COMM, Inc. will provide generic blank phone cards at the rate of $.10
each. A credit of $.10 per sale will be given to the Merchant on each
billing to offset the cost of the cards. Private labeled cards can be
provided to the Merchant at actual cost. All cards are non-refundable.
9. All Qxpress(TM) terminals remain the sole property of Q Comm Inc.
10. All products and shipments are FOB Utah.
11. Qxpress(TM) demonstration terminals are available for a fee of $35 per
month (paid in advance).
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SCHEDULE "B"
SERVICES AND RENTAL AGREEMENT
This Agreement is made this _____day of ________________ ,2000 by and between
__________________________________ (the "Merchant") and Q COMM, Inc. Q COMM Inc.
is a wholly owned subsidiary of Q COMM International, Inc. Qxpress Management
System ("Qxpress(TM)") is a point-of-sale printing device for prepaid service.
The Merchant wishes to utilize the Qxpress(TM) Device for their phone card,
wireless, and any additional prepaid services as available for sales at their
designated location(s). A list of the locations is attached to this Agreement
and incorporated herein by reference.
IN THE EVENT OF A DISPUTE, THIS AGREEMENT IS SUBJECT TO ARBITRATION AND
MEDIATION.
1. Q COMM, Inc. will provide Qxpress(TM) to the Merchant at no charge. The
Merchant is required to produce a weekly minimum of $150.00 in gross prepaid
card revenue. If this minimum is not met, a service fee of $6.95 will apply.
This service fee will be included in the ACH accounting each week that
performance falls below the minimum. The service fee will commence the second
Monday following the shipment of the Qxpress(TM) terminal.
2. Q COMM, Inc. will provide blank Qxpress(TM) phone cards at the rate of $.10
each. A credit of $.10 per sale will be given to The Merchant on each billing to
offset the cost of the cards. All blank cards are non-refundable. Private
labeled cards may be provided at an additional fee with no offset credit by Q
Comm, Inc..
3. Compensation: Q COMM, Inc. will compensate the Business for prepaid telecom
revenues per month as per the following:
Product Description Percentage Product Description Percentage
------------------- ---------- ------------------- ----------
--------------- -------% --------------- -------%
--------------- -------% --------------- -------%
--------------- -------% --------------- -------%
4. Qxpress(TM) is and shall remain the sole property of Q COMM, Inc., and shall
be surrendered on demand.
5. Q COMM, Inc. reserves the right to remove a Qxpress(TM) from a location if
sales in that location do not warrant the Qxpress(TM) placement.
6. The Merchant shall provide the following: 1) a safe and secure place for the
Qxpress(TM) to be located, 2) a grounded power outlet, 3) phone line access, and
4) a point-of-sale material location.
Merchant:
The Merchant's store name: ___________________________________________________
The Merchant's store address: ________________________________________________
City/State/Zip: ________________________________________
Owner/Officer: (print): ______________________________________________________
Owner/Officer: (signature): __________________________________________________
The Merchant's store telephone number: ________________________________________
Q COMM, Inc.
Sales Representative: ________________________________________________________
I.D. Number: _________________________________________________________________
Q Comm Officer: ______________________________________________________________
ORIGINALS MUST BE SENT TO Q COMM, INC.
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7. Q COMM, Inc. will provide standard point-of-sale materials at it's own
expense. Private labeled point of sale material can be provided by Q COMM, Inc.
at the Merchant's expense. The Merchant can provide their own point of sale
materials subject to approval by Q COMM, Inc. (Q COMM, Inc. must assure that any
advertising meets FCC or Public Service or Utility Commission Guide lines).
8. Qxpress(TM) shall remain at the location it is initially located in and shall
not be moved without prior approval from Q COMM, Inc. (a fax or E-mail with
receipt confirmed shall also serve as notice).
9. PAYMENT: Every Monday, an agreed upon account will be debited by Automated
Clearing House (ACH) or Electronic Funds Transfer (EFT) (herein after referred
to as the "debit"). The debit will be initiated by Q COMM, Inc. If debit is
refused by The Merchant's bank, Qxpress(TM) will be turned off until the debit
is honored and a service fee of $25.00 for insufficient funds will be assessed
before Qxpress(TM) is reactivated. Two refused debits will cause this Agreement
to be terminated immediately without notice.
10. In the event Qxpress(TM) malfunctions, the store clerk or manager will call
Qxpress Client Services at (000) 000-0000. If the Qxpress cannot be repaired
with instructions over the phone or by phone updates, Q COMM, Inc. will send a
replacement unit via overnight delivery.
11. Any disputes between The Merchant and Q COMM, Inc. that cannot be resolved
will be submitted to arbitration under the rules and regulations of the American
Arbitration Association. Either party may invoke this paragraph after providing
10 days written notice to the other party. All cost of arbitration shall be
divided equally between the parties. Any award may be enforced by a court of
law. Dispute mediation, or arbitration will be handled at the specific court
located in the county of Utah, State of Utah.
12. ENTIRE AGREEMENT: This is our entire agreement and cannot be changed unless
agreed to in writing by both parties.
13. FORCE MAJEURE: If any part of this agreement is invalidated by local,
county, state or federal rules or regulations, or a court of law, the balance of
this agreement will remain valid.
14. TAXES: Q COMM, Inc.'s carriers are responsible for collection and payment of
Federal excise and applicable State taxes unless the local, county or State
laws, rules, and regulations require that the taxes be collected at the time of
sale and reported to the taxing authorities by the Merchant. Taxes may be
collected from the card user on a per call or per minute basis. There may be
taxes that Q COMM, Inc. will collect and pass through to The Merchant. Any
additional taxes levied by Federal, State, or local entities will be passed on
to The Merchant. Any taxes collected by The Merchant will be their sole
responsibility to remit to proper taxing authorities. This statement is not
advice on the collection or reporting of taxes and we suggest that each Merchant
contact their CPA, Accountant or taxing authority in their states for the
correct taxes or reporting of same from the sale of any Prepaid
Telecommunication Product.
15. DIAL AROUND: The FCC in October 1997 mandated that all 800 or 888 calls from
a pay phone be compensated to the pay phone owner. A surcharge ($.49) may be
added to each call for toll free access from a pay phone. The Merchant is not
responsible for collecting and paying these dial around charges.
16. RETURN GOODS POLICY: All returned goods must be authorized by Q Comm, Inc.
using a Return Goods Authorization "RGA" form. All returned goods commissions,
Broker and Merchant, will be charged back to the appropriate commissioned party
on the next ACH cycle. The Broker will be responsible for the Merchant interface
on all claims. This policy does not apply to phone cards or airtime cards as
there is a no refund-no return policy on all cards generated by Qxpress(TM). A
restocking fee of 15% will be applied to all returned goods. This fee will be
deducted from the ACH credit on the cycle following the receipt of goods. The
RGA # must be visible on all returned good shipments in order to be accepted.
17. TRANSFER OF RIGHTS OR ASSIGNMENT: This agreement shall be binding on any
successors of the parties. Neither party shall have the right to assign its
interests in this Agreement to any other party, unless the prior written consent
of the other is obtained.
18. WARRANTIES: Neither party makes any warranties with respect to the use of
Qxpress(TM) by either party or by any third party. In no event will Q COMM, Inc.
be liable for direct, indirect, incidental, or consequential damaged, that are
in any way related to Qxpress(TM) or its carriers.
19. TERMINATION: This Agreement can only be terminated by Q COMM, Inc. by
providing a five (5) day advance written notice. The Merchant can terminate with
30 days advance written notice if the terms of this agreement are not being met.
20. GOVERNING LAWS: This Agreement is governed by the laws, rules and
regulations of the State of Utah.
21. EXCLUSIVITY: The Merchant agrees that during the term of this agreement Q
COMM, Inc. shall be the sole provider of phone cards and Prepaid Wireless to all
their retail locations.
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[QCOMM LOGO]
ACH AGREEMENT
Authorization and Agreement for Automated Clearing House (ACH) Debits
and Credits
Company:
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I (we) authorize: Q COMM International, Inc. herein after called "Company", to
initiate credit and or debit entries and adjustments for any credit entries in
error to my (our) checking account indicated below and the depository named
below, herein after called "Depositor", and to credit and/or debit the same such
account.
Depositor name (Bank
name):
------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
City, State and Zip or Postal Code:
---------------------------------------------
Phone Number: Fax Number:
-------------------------- -----------------------------
Bank Service Representative:
---------------------------------------------------
Transit Number/ABA Number:
-----------------------------------------------------
Account Number:
----------------------------------------------------------------
This authority is to remain in full force and effect until Company has received
written notification from me (us).
By: By: Q COMM Inc.
--------------------------------- -
(Please Print)
Its: Client Mgr:
-------------------------------- ---------------------------
(Title)
Signed: H O:
----------------------------- ----------------------------------
PLEASE ATTACH A VOIDED CHECK OR DEPOSIT SLIP TO THIS FORM.
WE NEED THIS TO GET THE ACTUAL ROUTING AND ACCOUNT NUMBERS.
Any errors and/or disputes must be corrected within two banking days of the
initiating transaction. Thank you for your confidence and trust.
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SCHEDULE "C"
CUSTOM/PRIVATE LABEL CARD TERMS AND CONDITIONS
GENERAL ARTISTIC AND CONTENT GUIDELINES FOR WHOLESALE PIN'S AND CUSTOM PRIVATE
LABEL CARDS
CARDS
-----
All card backs must disclose the following with regulatory requirements:
1. Made in the USA
2. Non-refundable
3. Rates subject to change without notice
4. The expiration date must appear on the card back.
5. Network Services provided by a specialized phone card network
6. The specific account access PIN must be printed on the card
7. Toll free access number must be printed on the card
8. The customer service number or instructions on how to reach customer service
must be printed on the card
9. Any applicable surcharges i.e. Payphone surcharge, Domestic surcharge and
International surcharge MUST BE FULLY DISCLOSED on the card back and
packaging back.
10. Any applicable minute rounding increment must be disclosed on the card back
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SCHEDULE "D"
PRODUCT PRICE LIST AND BROKER COMMISSION SCHEDULE
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Product Discounts* Price Notes
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Calling Card - 2.5(cent)/ Min U.S. 35% 2.5(cent)/ min U.S. 49(cent)connect fee /
79(cent) Monthly Mtc.
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Calling Card - 5.9(cent)/ Min U.S. 45% 5.9(cent)/ min U.S. 59(cent)connect fee /
59(cent) Monthly Mtc.
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Calling Card - 9.9(cent)/ Min U.S. 35% 9.9(cent)/ min U.S. Flat rate, no connect
fee / no Monthly Mtc.
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Intl. Rates, All Cards 35% Call for Rate Variable connect fee - see
Schedule respective international
2.5(cent)cards / 9.9(cent)flat rate cards rate schedule
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Wireless Airtime 20% .29(cent)- .65(cent)/ Additional fee for roaming
min.
Wireless Phone Denominations:$30-$50 - $100 Phone cost is $44; 10
bonus minutes and a $100
$49.95 airtime rebate included
----------------------------------------- -------------------------- ---------------------------- ----------------------------
Verizon Cellular Program (call for terms and availability)
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Home Dial Tone (call for terms and availability)
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*Discount is the total percentage paid to Broker less any commission
percentage(s) set forth in the Merchant's "SERVICES AND RENTAL AGREEMENT".
*All products and shipments are FOB Utah.
*Additional rate programs available.
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SCHEDULE "E"
Request for Return Goods Authorization
(RGA Request)
(Q COMM cannot accept any returned merchandise without a RGA #)
Procedure: 1. Call (or FAX) Q Comm with the information listed below
2. Q Comm will research the request and call back within 24 hours
3. If approved, Q Comm will fax a RGA containing
1) a RGA # and 2) a mailing label or Q Comm will call
with a RGA # and address.
Date______ Company ____________________________________________________
Street ___________________________________________
City, State, zip ___________________________________________
Telephone _________________________ FAX ____________
Contact Person ___________________________________
Description of Merchandise
____________________________________________________
____________________________________________________
Number of items being returned ___________________
Reason for RGA Request
____________________________________________________
____________________________________________________
____________________________________________________
15
[QCOMM LOGO]
Q Comm, Inc. Services Agreement
-------------------------------
This Agreement (the "Agreement") is made and entered into this 15th day
of January, 2002 (the "Execution Date") between Q Comm, Inc. ("Q Comm") with
offices at 0000 Xxxxx 0000 Xxxx Xxxx, XX 00000-0000 and Iowa Wireless Services
LP ("Broker") with offices at 00000 Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Q Comm offers a comprehensive prepaid management system
through the Qxpress(TM) Point-of-Sale activation terminal ("Qxpress(TM)") and
the Q Comm telecommunications network ("Qxpress Services"); and
WHEREAS, Broker desires to purchase Q Comm services, including
activated calling cards in the form of personal identification numbers
(collectively the "PINs") as will be generated on-demand by Qxpress(TM); and
WHEREAS, Q Comm desires to obtain Broker as an independent agent to
market and promote Qxpress(TM) and Qxpress(TM) Services and Broker desires to
provide such services to Q Comm, subject to the terms, conditions and
specifications set forth in this Agreement; and
WHEREAS, the parties acknowledge that this Agreement is binding and
enforceable and agree to abide by the promises and covenants contained herein;
and
NOW, THEREFORE, in consideration of the premises, covenants and mutual
promises hereinafter set forth and intending to be legally bound thereby, the
parties agree to the following terms, conditions and specifications:
I. SERVICES PROVIDED:
Q Comm will provide the Qxpress(TM) terminal to organizations
("Merchants") contracted by Broker in accordance with the terms specified in
Schedule "A"
Q Comm agrees to sell to Broker and Broker agrees to purchase
Qxpress(TM) PINs in accordance with the terms and conditions set forth herein.
Qxpress(TM) provides access to prepaid calling and enhanced card services,
including network provisioning for interstate, international and, where
permitted by applicable regulations, intrastate transmission, as well as
switching facilities needed to originate, transmit, and terminate Card traffic.
1
II. TERM:
The term of this agreement is two (2) years. If, at the end of this
term, both Q Comm and Broker wish to renew the agreement, they may do so. IN THE
EVENT OF NON-PERFORMANCE, THIS AGREEMENT MAY BE CANCELLED WITH A THIRTY (30) DAY
NOTICE. This agreement may be terminated by either party if the terms of this
agreement are not being fulfilled. If terminated by the Broker, a thirty (30)
day prior written notice to the other party is required. Broker shall, upon
termination of this Agreement, and at the request of Q Comm, Inc. arrange for
the return of all Qxpress(TM) terminals in Brokers possession at the expense to
the Broker unless the client using the Qxpress(TM) terminal has been contracted
under the Q Comm Inc, "SERVICES AND RENTAL AGREEMENT" and ACH Agreement. If
return is requested by Q Comm, Inc., all Qxpress(TM) terminals must be returned
within twenty-five (25) days of the date of termination. If the terminals are
not received within that time frame the Broker agrees to pay $350.00 per unit
payable upon demand. Broker shall indemnify and hold Q Comm harmless from any
and all claims, actions, losses and damages arising from the attempted use by
third parties or end-users. The terms and conditions of this Agreement shall
remain in full force and effect after the termination date for all Qxpress(TM)
terminals contracted by Broker and activated by Q Comm before the termination
date.
III. COMPENSATION:
Q Comm shall pay Broker, and Broker shall be entitled to receive,
commissions and compensations as outlined in "SCHEDULE D" attached to this
agreement. Broker will receive it's agreed upon percentage, based upon the
customer retail volume, each week following the ACH. Broker agrees to all fees,
commissions, and minimum performance requirements in accordance with schedules
"A" and "B" which are subject to change with five (5) day notice to the Broker.
IV. DEPOSIT/CANCELLATION:
No Deposit is required with the "SERVICES AND RENTAL AGREEMENT" and ACH
Agreement. A minimum performance per terminal per week is required and outlined
in "SCHEDULE A". If this minimum is not met, a service fee will be assessed
through the ACH agreement. In addition, a Qxpress(TM) restocking fee of $25.00
applies to all returned terminals except for performance recalls by Q Comm,
Inc.. If the merchant fails to maintain such average sales volume Q Comm Inc.
may, at its sole discretion and without liability, immediately terminate the
"SERVICES AND RENTAL AGREEMENT".
V. RATE CHANGES:
The Service rates shall be subject to all applicable carrier tariffs. Q
Comm shall have the right to change the Service rates at any time for any reason
in Q Comm's sole discretion with five (5) day prior written notification of the
change to Broker. Broker acknowledges that a rate change will modify the minute
availability on the prepaid calling card.
VI. ORDERS:
The original, signed copies of the "SERVICES AND RENTAL AGREEMENT" and
ACH Agreement are required from the Broker for all Merchant orders prior to
shipping and/or activating a Q Comm Qxpress(TM) terminal. All orders shall be
subject to Q Comm's approval, as well as Q Comm's "SERVICES AND RENTAL
AGREEMENT" and ACH Agreement, unless otherwise established; a copy of which is
attached hereto as "SCHEDULE B& C". Merchants must call Q Comm Customer Service
to activate their terminal once the Merchant has received the terminal.
2
VII. RETURN GOODS POLICY:
All returned goods must be authorized by Q Comm Inc. using a Request
for Return Goods Authorization "RGA" Request form. All returned goods
commissions, Broker and Merchant, will be charged back to the appropriate
commissioned party on the next ACH cycle. The Broker will be responsible for the
Merchant interface on all claims. This policy does not apply to phone cards or
airtime cards as there is a no refund-no return policy on all cards generated by
Qxpress(TM). A restocking fee of 15% will be applied to all returned goods. This
fee will be deducted from the ACH credit on the cycle following the receipt of
goods. The RGA # must be visible on all returned goods in order to be accepted.
VIII. IN-SERVICE TRAINING:
A. Obligations of Q Comm:
1) Q Comm will provide one (1) Train-the-Trainer session for
Broker at agreed upon location.
2) Q Comm will provide English only in-service training for the
first five (5) locations, as part of the Train-the-Trainer
program.
3) See "SCHEDULE A" for pricing on Q Comm-provided training for
additional locations.
B. Obligations of Broker:
1) Broker will schedule a time for Q Comm to do the
Train-the-Trainer program.
2) Any additional training provided by Q Comm for Broker accounts
will be charged to the Broker through the ACH, according the
pricing on "SCHEDULE A".
IX. ACTIVATION:
Broker and/or Merchant shall pay for all activated calling cards via
ACH program, which will debit the designated merchant account every week for the
previous week's sales.
3
X. OBLIGATIONS OF Q COMM:
A. Q Comm shall provide the Qxpress(TM) terminal to Broker's Merchants
subject to the Q Comm, Inc. acceptance of the "SERVICES AND RENTAL AGREEMENT"
and the ACH Agreement.
B. Q Comm may use multiple carriers to provide the telecom prepaid
services.
C. Q Comm shall approve in writing all point of purchase materials and
prepaid calling card language and artwork used by Broker.
D. Q Comm shall be solely responsible for developing and implementing
the terms and conditions for use of Qxpress(TM).
XI. OBLIGATIONS OF BROKER:
A. Broker is required to adhere to the following performance minimums
for each Qxpress(TM) unit installed:
1) Minimum performances, outlined in the "SERVICES AND RENTAL
AGREEMENT," must be maintained monthly by 90 percent of the
Qxpress(TM) terminals placed by Q Comm, Inc. in Broker's behalf.
2) Broker must place a minimum of one hundred and fifty (150)
Qxpress(TM) terminals in the first six (6) months of this agreement.
it is understood by the parties that there is no maximum number of
terminals that could be deployed.
3) If these performance minimums are not met, Q Comm, Inc. may
terminate the Broker Agreement at any time.
B. If this Agreement is terminated by either party, Q Comm, Inc. will
continue to support the existing Qxpress(TM) terminals and pay Broker the agreed
upon percentages under all existing contract terms for a period of 180 days from
the date of notice as defined in paragraph XX ("Notices").
C. Broker accepts the "SERVICES AND RENTAL AGREEMENT" and ACH Agreement
in effect at the time of this Agreement. ("SCHEDULE B & C"). Q Comm's "SERVICES
AND RENTAL AGREEMENT" and ACH Agreement are subject to change with five (5) day
notice to Broker.
D. Broker must obtain Q Comm's written approval of all content and
artwork for any prepaid calling cards, packaging and point-of-purchase materials
as a condition to activation of PINs. Q Comm shall have the right to change,
add, or modify the copy in any way. All modifications by Broker to pre-approved
content or artwork must also be approved in writing by Q Comm.
4
XII. DELIVERY, TITLE, RISK OF LOSS, SECURITY AND FRAUD CONTROL:
A. Broker, upon taking delivery of the Qxpress(TM) terminal from Q
Comm, shall bear the risk of loss (unless contracted under the Q Comm, Inc.
"SERVICES AND RENTAL AGREEMENT") and be solely responsible for all losses,
damages, claims and liabilities caused by:
1. PINs, active cards, and inactive cards which are mishandled,
damaged or stolen;
B. Q Comm shall collect all revenues from retailers as per the ACH
agreement enclosed in Schedule "B".
C. Broker shall bear the risk of loss for fraud, theft, non-sufficient
funds, or misuse of the Qxpress(TM) terminal by Broker's customers.
D. The parties agree that, upon activation and authorization of sale by
the Qxpress(TM) terminal, the Merchant shall be responsible for the following as
per the "SERVICES AND RENTAL AGREEMENT":
1. all lost and/or stolen cards, for which no refunds or credits will
be issued by Q Comm;
2. use of activated Calling Cards generated by Qxpress(TM) (including
calls to wrong numbers), regardless of whether such use occurred by
the Merchant, a person authorized by the end user to use the
Qxpress(TM) terminal, or by a person not authorized by end user; and
3. improper activation by Merchant of incorrect unit amounts, improper
decrementation by Q Comm or transmission difficulty.
E. Q Comm shall, in its sole discretion, have the right to immediately
deactivate any particular Qxpress(TM) terminal, PIN or batches of PINs in the
event Q Comm reasonably believes that same have been improperly or fraudulently
activated.
F. All shipments are X.X.X. Xxxx.
0
XXXX. XXXXX XXXXXXX:
Q Comm shall not be liable for any delay or nonperformance under the
terms of this Agreement due to causes beyond its control, including but not
limited to, acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections,
fires, explosions, earthquakes, nuclear accidents, floods, strikes, power
blackouts, severe weather conditions, failure by Broker to fulfill any of its
obligations under this Agreement, acts of third parties, or acts or omissions of
common carriers (collectively referred to as "Force Majeure Conditions")
XIV. INDEMNIFICATION AND LIMITATIONS OF LIABILITY
A. Q Comm shall exercise its best efforts to avoid network service
interruption. However, in the event of a network service interruption or
equipment failure, Q Comm's liability hereunder shall be limited to the retail
cost of the PIN subject to the interruption, provided that such interruption was
caused solely by Q Comm's willful act or omission or its negligence. Q Comm
shall not be liable for any interruption caused by the negligence or any act or
omission of Broker, the Card user, carrier, switch provider or any third party.
B. Except as otherwise stated herein each party will defend, indemnify
and hold harmless the other party, its owners, parents, affiliates,
subsidiaries, brokers, directors, officers, shareholders, and employees from and
against any and all losses, costs, claims, awards, liabilities, damages, and
expenses (including reasonable attorneys fees) brought or claimed by third
parties, relating to or arising out of the negligence or willful misconduct of
either party in the performance of this Agreement.
C. Q COMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE OR OTHER WARRANTY OF QUALITY, EXCEPT AS EXPRESSLY PROVIDED IN THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IN NO EVENT SHALL Q Comm BE LIABLE TO BROKER
OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS.
XV. INTELLECTUAL PROPERTY; USE OF MARKS:
A. Broker acknowledges Q Comm's exclusive ownership of all Q Comm
designated trademarks, service marks and other symbols (the "Marks") relating to
the PIN and agrees not to assume any rights in the Marks.
B. It is understood and agreed by both parties that nothing in this
agreement is intended to grant to Broker the right to engage in the business of
offering goods or services using Q Comm's trade name, trademark, service xxxx,
logotype, advertising, or other commercial symbol or related characteristics.
6
XVI. CONFIDENTIALITY:
Both parties agree that all of the terms and conditions of this
Agreement are confidential. Press releases or other public announcements
("Public Releases") by either party concerning the existence of this Agreement,
terms of this Agreement, or the services to be provided under this Agreement may
not be disclosed publicly, other than to service vendors for the purpose of
effectuating this Agreement, without the prior written consent of both Q Comm
and Broker.
XVII. ASSIGNMENT:
Q Comm may at any time assign its rights, obligations or duties, in
whole or in part, or any other interest hereunder without Broker's approval.
Broker may not assign its rights, obligations or duties, in whole or in part, or
any other interest hereunder without the prior written consent of Q Comm.
XVIII. INJUNCTIVE RELIEF:
Broker hereby agrees that the remedy at law for any breach or
threatened breach by it of the covenants in this Agreement may be inadequate and
that Q Comm would suffer irreparable harm; therefore, it is mutually agreed and
stipulated by the parties hereto, that in addition to any other remedies at law
or in equity which Q Comm may have, Q Comm shall be entitled to obtain in a
court of law and/or equity a temporary and/or permanent injunction restraining
Broker from a further violation or breach of such covenants.
XIX. ATTORNEY'S FEES:
In the event that an action at law or in equity is brought by Q Comm to
enforce the terms and conditions of this Agreement, or to prevent a breach
thereof, and Q Comm is the prevailing party, Broker shall be liable for Q Comm's
reasonable attorneys fees and costs in addition to any other relief awarded to Q
Comm pursuant to such action.
7
XX. NOTICES:
Notices required to be given under this Agreement shall be effective
when mailed by prepaid certified mail return receipt requested to:
Q Comm International, Inc.
0000 Xxxxx 0000 Xxxx
Xxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxxx, President
Iowa Wireless Service LP
00000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000.
Xxxxxx X. Xxxxxxx
(000) 000-0000
XXI. GENERAL:
A. This Agreement constitutes the entire understanding between Q Comm
and Broker and supersedes any and all prior or contemporaneous oral or written
statements and representations made by either party to the other.
B. Failure on the part of either party to enforce any provision of this
Agreement in any one instance shall not be construed as a general waiver or
relinquishment of the right to enforce such provision.
C. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected thereby.
D. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts shall have been signed by each party and delivered
to the other party. The undersigned represent and warrant that they are duly
authorized by the parties to enter into and sign this Agreement and by such
signatures do bind the parties to the terms of this Agreement.
E. This Agreement shall be governed by Utah law, without giving effect
to its choice of law provisions.
8
XXII. NON-DISCLOSURE
A. During the course of this Agreement, Broker shall become aware of
certain methods, practices, and procedures with which Q Comm conducts its
business, all of which Broker and Q Comm agree are proprietary information and
as such are trade secrets.
B. Broker will not at any time, either during this Agreement or
thereafter divulge, furnish, or make available, either directly or indirectly,
to any person, firm, corporation or other entity any proprietary information
used by Q Comm. Broker agrees that all such matters and information shall be
kept strictly and absolutely confidential.
C. Broker acknowledges that a breach of any of the provisions of this
Agreement may result in continuing and irreparable damages to Q Comm for which
there may be no adequate remedy at law and that Q Comm in addition to other
relief available to Q Comm shall be entitled to the issuance of an injunction
restraining Broker from committing or continuing and breach of this Agreement.
IN WITNESS WHEREOF, the parties agree that this Agreement sets forth the
complete understanding of the parties and may not be modified except in writing
signed by both parties.
Iowa Wireless Q Comm International, Inc.
By:/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------- --------------------------------
Its: Chief Financial Officer Its: President
-------------------------------- --------------------------------
Date: January 15, 2002 Date: January 15, 2002
------------------------------ -------------------------------
Phone #: Phone #: (000) 000-0000
--------------
9
SCHEDULE "A"
Payment:
1. Broker will receive its agreed upon percentage daily or weekly
corresponding with the merchants ach schedule and based on the transaction
fees listed below.
2. Q Comm will deduct the Q Comm percentage (%) from each ACH.
3. Payment in U.S. Dollars.
4. Q Comm will collect funds from Merchants on a weekly or daily basis through
an ACH. Each account will be placed on a weekly ACH initially. Once sales
for an individual unit exceeds $500/day in gross revenue, the client will
be automatically switched to a daily ACH.
Training:
5. Q Comm will provide English speaking telephonic training for Qxpress(TM) as
follows:
a) The first five (5) approved locations are trained at no charge.
b) Each additional in-service training is $22.50.
Terminal:
6. Broker will contract each Merchant location to be installed with
Qxpress(TM) using a Q Comm Services & Rental Agreement and an ACH Agreement
(Schedule "B" and "C").
7. Qxpress(tm)blank cards for use in terminals may be provided by Q Comm; $25
per box (250 cards in a box). Private label cards are available.
8. Q Comm will waive the initial $35.00 set-up fee for each Qxpress(TM) unit
requested by the BrokeR. However, if Broker collects a set-up fee from its
customers, Q Comm will immediately begin charging the Broker $35 per
terminal.
9. Q Comm will arrange for Internet access for Broker and selected key
accounts.
10. All Qxpress(TM) terminals remain the sole property of Q Comm Inc.
11. All products and shipments are FOB Utah.
12. Qxpress(TM) demonstration terminals are available for the following fees:
1-2 demo terminals - $35 each per month (paid in advance)
3-6 demo terminals - $50 each per month (paid in advance)
7+ demo terminals - $100 each per month (paid in advance)
10
13. Terminals will be configured to have screen display in language of choice
(English plus one).
14. Terminals will display the name and logo of q comm unless a private label
agreement is reached between the parties. The terminals may display both
the name of q comm and iowa wireless.
15. The relationship will originate with the use of the older version of Q Comm
terminals and that the newer terminals will be utilized as soon as they
become available. The newer terminals will be in place no later than june
30, 2002.
16. Minimum Performance:
a) Each location (where a Qxpress(TM) terminal has been installed) must
maintain a $200.00/week minimuM.
b) If these minimums are not met each week, a weekly service fee of $8.95
will be deducted from the Merchants ACH account.
c) This service fee will commence the second Monday following shipment of
the Qxpress(TM) terminal.
d) Each Qxpress(tm) terminal (Merchant location) is responsible for
meeting the performance minimum for the location.
If products are being provided by Broker, the following deal points apply:
17. Broker may add additional products on Qxpress(TM) if they desire. Up to
five (5) products can be added At no charge. Each additional product is
$325.
18. Q Comm will provide one (1) download of pins per month at no charge. Each
additional download is $250.
19. The price and terms of this Agreement are good for 30 days without a
signature.
Transaction Fees:
20. Q Comm will receive a 1% commission on all gross revenue sold through
Qxpress(TM).
21. Q Comm will receive a eighty-five cent (85(cent)) per week account
management and ach fee per qxpress(tm) location. this fee starts concurrent
with the minimum performance fee listed in #16c.
11
22. Q Comm will receive a twenty-five cent (25(cent)) per week hardware
maintenance fee per Qxpress(Tm) location. This fee starts concurrent with
the minimum performance fee listed in #16c.
23. Minimum gross revenue (Face Value) per week must exceed $20,000 after the
initial six (6) month rollout.
Reports:
24. Three standard reports will be provided by Q Comm; Merchant, Broker,
Operator/Carrier.
25. Custom report creation available.
26. Pin management reports also available.
12
SCHEDULE "B"
SERVICES AND RENTAL AGREEMENT
This Agreement is made this _____day of ________________ ,2002 by and between
__________________________________ (the "Merchant") and Q COMM, Inc. Q COMM Inc.
is a wholly owned subsidiary of Q COMM International, Inc. Qxpress Management
System ("Qxpress(TM)") is a point-of-sale printing device for prepaid service.
The MerchaNT wishes to utilize the Qxpress(TM) Device for their phone card,
wireless, and any additional prepaid services AS available for sales at their
designated location(s). A list of the locations is attached to this Agreement
and incorporated herein by reference.
IN THE EVENT OF A DISPUTE, THIS AGREEMENT IS SUBJECT TO ARBITRATION
AND MEDIATION.
1. The term of this agreement is two (2) years during which Q COMM, Inc. will
provide Qxpress(TM) to the MerchaNT at no charge. The Merchant is required to
produce a weekly minimum of $200.00 in gross prepaid card revenue. If this
minimum is not met, a service fee of $8.95 will apply. This service fee will be
included in the ACH accounting each week that performance falls below the
minimum. The service fee will commence the second Monday following the shipment
of the Qxpress(TM) terminal. Optional weekly ACH reports are available to the
Merchant upON request for a $2.00 weekly charge. Blank cards will be provided by
Q Comm at a cost of $0.10 per card ($25 per box of 250 cards).
2. Q Comm will collect funds from Merchants on a weekly or daily basis through
an ACH. Each account will be placed on a weekly ACH initially. Once sales for an
individual unit exceeds $500/day in gross revenue, the client will be
automatically switched to a daily ACH.
3. Compensation: Q COMM, Inc. will compensate the Business for prepaid telecom
revenues as per the following:
Product Description Percentage Product Description Percentage
------------------- ---------- ------------------- ----------
--------------- -------% ---------------- -------%
--------------- -------% ---------------- -------%
--------------- -------% ---------------- -------%
4. Qxpress(TM) is and shall remain the sole property of Q COMM, Inc., and shall
be surrendered on demand if the terms of this agreement are violated.
5. Q COMM, Inc. reserves the right to remove a Qxpress(TM) from a location if
sales in that location do not warrant the Qxpress(TM) placement.
6. The Merchant shall provide the following: 1) a safe and secure place for the
Qxpress(TM) to be located, 2) a grounded power outlet, 3) phone line access, and
4) a point-of-sale material location.
Merchant:
The Merchant's store name: ___________________________________________________
The Merchant's store address: ________________________________________________
City/State/Zip: ________________________________________
The Merchant's store telephone number: ________________________________________
The Merchant's store fax number: ______________________________________________
The Merchant's store Email address: ___________________________________________
Owner/Officer: (print): ______________________________________________________
Owner/Officer: (signature): __________________________________________________
Q COMM, Inc.
Representative: ______________________________________________________________
White Copy: Q Comm, Inc.
Yellow Copy: Merchant
Pink Copy: Broker
ORIGINALS MUST BE SENT TO Q COMM, INC.
13
7. Q COMM, Inc. will provide standard point-of-sale materials at it's own
expense. Private labeled point of sale material can be provided by Q COMM, Inc.
at the Merchant's expense. The Merchant can provide their own point of sale
materials subject to approval by Q COMM, Inc. (Q COMM, Inc. must assure that any
advertising meets FCC or Public Service or Utility Commission Guide lines).
8. Qxpress(TM) shall remain at the location it is initially located in and shall
not be moved without prior approval from Q COMM, Inc. (a fax or E-mail with
receipt confirmed shall also serve as notice).
9. PAYMENT: Weekly or daily, an agreed upon account will be debited by Automated
ClearingHouse (ACH) or Electronic Funds Transfer (EFT) (herein after referred to
as the "debit"). The debit will be initiated by Q COMM, Inc. If debit is refused
by The Merchant's bank, Qxpress(TM) will be turned off until the debit is
honored and a service fee of $25.00 for insufficient funds will be assessed
before Qxpress(TM) is reactivated. Two refused debits will cause this Agreement
to be terminated immediately without notice. Any fees incurred by Q Comm in
order to collect unpaid debits, including but not limited to collection agency
fees, attorney's fees and court costs, will be added to the amount Q Comm is
entitled to receive from The Merchant. Interest at 18% per annum will also be
added to unpaid debits.
10. In the event Qxpress(TM) malfunctions, the store clerk or manager will call
Qxpress Client Services at (000) 000-0000. If the Qxpress cannot be repaired
with instructions over the phone or by phone updates, Q COMM, Inc. will send a
replacement unit via overnight delivery.
11. Any disputes between The Merchant and Q COMM, Inc. that cannot be resolved
will be submitted to arbitration under the rules and regulations of the American
Arbitration Association. Either party may invoke this paragraph after providing
10 days written notice to the other party. All cost of arbitration shall be
divided equally between the parties. Any award may be enforced by a court of
law. Dispute mediation, or arbitration will be handled at the specific court
located in the county of Utah, State of Utah.
12. ENTIRE AGREEMENT: This is our entire agreement and cannot be changed unless
agreed to in writing by both parties.
13. FORCE MAJEURE: If any part of this agreement is invalidated by local,
county, state or federal rules or regulations, or a court of law, the balance of
this agreement will remain valid.
14. TAXES: Q COMM, Inc.'s carriers are responsible for collection and payment of
Federal excise and applicable State taxes unless the local, county or State
laws, rules, and regulations require that the taxes be collected at the time of
sale and reported to the taxing authorities by the Merchant. Taxes may be
collected from the card user on a per call or per minute basis. There may be
taxes that Q COMM, Inc. will collect and pass through to The Merchant. Any
additional taxes levied by Federal, State, or local entities will be passed on
to The Merchant. Any taxes collected by The Merchant will be their sole
responsibility to remit to proper taxing authorities. This statement is not
advice on the collection or reporting of taxes and we suggest that each Merchant
contact their CPA, Accountant or taxing authority in their states for the
correct taxes or reporting of same from the sale of any Prepaid
Telecommunication Product.
15. DIAL AROUND: The FCC in October 1997 mandated that all 800 or 888 calls from
a pay phone be compensated to the pay phone owner. A surcharge ($.49) may be
added to each call for toll free access from a pay phone. The Merchant is not
responsible for collecting and paying these dial around charges.
16. RETURN GOODS POLICY: All returned goods must be authorized by Q Comm, Inc.
using a Return Goods Authorization "RGA" form. All returned goods commissions,
Broker and Merchant, will be charged back to the appropriate commissioned party
on the next ACH cycle. The Broker will be responsible for the Merchant interface
on all claims. This policy does not apply to phone cards or airtime cards, as
there is a no refund-no return policy on all cards generated by Qxpress(TM). A
restocking fee of 15% will be applied to all returned goods. ThIS fee will be
deducted from the ACH credit on the cycle following the receipt of goods. The
RGA # must be visible on all returned good shipments in order to be accepted.
17. TRANSFER OF RIGHTS OR ASSIGNMENT: This agreement shall be binding on any
successors of the parties. Neither party shall have the right to assign its
interests in this Agreement to any other party, unless the prior written consent
of the other is obtained.
18. WARRANTIES: Neither party makes any warranties with respect to the use of
Qxpress(TM) by either party or by any third party. In no event will Q COMM, Inc.
be liable for direct, indirect, incidental, or consequential damaged, that are
in any way related to Qxpress(TM) or its carriers.
19. TERMINATION: This Agreement can be terminated by Q COMM, Inc. by providing a
thirty (30) day advance written notice. The Merchant can terminate with 30 days
advance written notice if the terms of this agreement are not being met.
20. GOVERNING LAWS: This Agreement is governed by the laws, rules and
regulations of the State of Utah.
21. EXCLUSIVITY: The Merchant agrees that during the term of this agreement Q
COMM, Inc. shall be the sole provider of phone cards and Prepaid Wireless to all
their retail locations.
14
[Q COMM LOGO]
SCHEDULE "C"
------------
ACH AGREEMENT
Authorization and Agreement for Automated Clearing House (ACH) Debits
and Credits
Company Name: _________________________________________________________________
Company Address: ______________________________________________________________
I (we) authorize: Q COMM International, Inc. herein after called "Company", to
initiate credit and or debit entries and adjustments for any credit entries in
error to my (our) checking account indicated below and the depository named
below, herein after called "Depositor", and to credit and/or debit the same such
account.
Depositor name (Bank name): ___________________________________________________
Address: ______________________________________________________________________
City, State and Zip or Postal Code: ___________________________________________
Phone Number: ____________________________ Fax Number: _______________________
Bank Service Representative: __________________________________________________
ACH Routing/Transit/ABA # (9 digits): _________________________________________
Account Number: _______________________________________________________________
This authority is to remain in full force and effect until Company has received
written notification from me (us).
By: By: Q COMM Inc.
------------------------------
(Please Print)
Its: __________________________________ Client Mgr: ________________________
(Title)
Signed: ______________________________ H O: _______________________________
Date: ___________________________ Date: ______________________________
PLEASE VERIFY YOUR ACCOUNT NUMBER AND ACH ROUTING NUMBER WITH YOUR BANK.
ATTACH A VOIDED CHECK TO THIS FORM. NO DEPOSIT SLIP.
Any errors and/or disputes must be corrected within two banking days of the
initiating transaction. Thank you for your confidence and trust.
15
SCHEDULE "D"
PRODUCT PRICE LIST AND BROKER COMMISSION SCHEDULE
IOWA WIRELESS PROVIDES ALL PRODUCTS
(all products are PIN-based)
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[Q COMM LOGO]
Q Comm, Inc. Services Agreement
-------------------------------
This Agreement (the "Agreement") is entered into this 11th day of
October, 2000 (the "Execution Date") between Q Comm, Inc. ("Q Comm") with
offices at 0000 Xxxxx 0000 Xxxx Xxxx, XX 00000-0000 and Hargray Wireless
("Broker") with offices at 000 Xxxxxxx Xxxxxx Xxxx. Xxxx. X Xxxxxx Xxxx, XX
00000.
WITNESSETH:
WHEREAS, Q Comm offers a comprehensive prepaid management system
through the Qxpress(TM) Point-of-Sale activation terminal ("Qxpress(TM)") and
the Q Comm telecommunications network ("Qxpress Services"); and
WHEREAS, Broker desires to purchase Q Comm services, including
activated calling cards in the form of personal identification numbers
(collectively the "PINs") as will be generated on-demand by Qxpress(TM); and
WHEREAS, Q Comm desires to obtain Broker as an independent agent to
market and promote Qxpress(TM) and Qxpress(TM) Services and Broker desires to
provide such services to Q Comm, subject to the terms, conditions and
specifications set forth in this Agreement; and
WHEREAS, the parties acknowledge that this Agreement is binding and
enforceable and agree to abide by the promises and covenants contained herein;
and
NOW, THEREFORE, in consideration of the premises, covenants and mutual
promises hereinafter set forth and intending to be legally bound thereby, the
parties agree to the following terms, conditions and specifications:
I. SERVICES PROVIDED:
Q Comm will provide the Qxpress(TM) terminal to organizations
("Merchants") contracted by Broker in accordance with the terms specified in
Schedule "A"
Q Comm agrees to sell to Broker and Broker agrees to purchase
Qxpress(TM) PINs in accordance with the terms and conditions set forth herein.
Qxpress(TM) provides access to prepaid calling and enhanced card services,
including network provisioning for interstate, international and, where
permitted by applicable regulations, intrastate transmission, as well as
switching facilities needed to originate, transmit, and terminate Card traffic.
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II. TERM:
The term of this non-exclusive agreement is two (2) years. If, at the
end of this term, both Q Comm and Broker wish to renew the agreement, they may
do so. This agreement may be terminated at any time for "no cause." If
terminated by the Broker, a ninety (90) day prior written notice to the other
party is required. Broker shall, upon termination of this Agreement, and at the
request of Q Comm, Inc. arrange for the return of all Qxpress(TM) terminals in
Brokers possession at the expense to the Broker unless the client using the
Qxpress(TM) terminal has been contracted under the Q Comm Inc, "SERVICES AND
RENTAL AGREEMENT" and ACH Agreement. If return is requested by Q Comm, Inc., all
Qxpress(TM) terminals must be returned within twenty-five (25) days of the date
of termination. If the terminals are not received within that time frame the
Broker agrees to pay $350.00 per unit payable upon demand. Broker shall
indemnify and hold Q Comm harmless from any and all claims, actions, losses and
damages arising from the attempted use by third parties or end-users. The terms
and conditions of this Agreement shall remain in full force and effect after the
termination date for all Qxpress(TM) terminals contracted by Broker and
activated by Q Comm before the termination date.
III. COMPENSATION:
Q Comm shall pay Broker, and Broker shall be entitled to receive,
commissions and compensations as outlined in "SCHEDULE D" attached to this
agreement. Broker will receive it's agreed upon percentage, based upon the
customer retail volume, each week following the ACH. Broker agrees to all fees,
commissions, and minimum performance requirements in accordance with schedules
"A" and "B" which are subject to change with five (5) day notice to the Broker.
IV. DEPOSIT/CANCELLATION:
No Deposit is required with the "SERVICES AND RENTAL AGREEMENT" and ACH
Agreement. A minimum performance per terminal per week is required and outlined
in "SCHEDULE A". If this minimum is not met, a service fee will be assessed
through the ACH agreement. In addition, a Qxpress(TM) restocking fee of $25.00
applies to all returned terminals except for performance recalls by Q Comm,
Inc.. If the merchant fails to maintain such average sales volume Q Comm Inc.
may, at its sole discretion and without liability, immediately terminate the
"SERVICES AND RENTAL AGREEMENT".
V. RATE CHANGES:
The Service rates shall be subject to all applicable carrier tariffs. Q
Comm shall have the right to change the Service rates at any time for any reason
in Q Comm's sole discretion with five (5) day prior written notification of the
change to Broker. Broker acknowledges that a rate change will modify the minute
availability on the prepaid calling card.
VI. ORDERS:
The original, signed copies of the "SERVICES AND RENTAL AGREEMENT" and
ACH Agreement are required from the Broker for all Merchant orders prior to
shipping and/or activating a Q Comm Qxpress(TM) terminal. All orders shall be
subject to Q Comm's approval, as well as Q Comm's "SERVICES AND RENTAL
AGREEMENT" and ACH Agreement, unless otherwise established; a copy of which is
attached hereto as Schedule "B".
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VII. RETURN GOODS POLICY:
All returned goods must be authorized by Q Comm Inc. using the Request
for Return Goods Authorization "RGA" Request form found in SCHEDULE "E". All
returned goods commissions, Broker and Merchant, will be charged back to the
appropriate commissioned party on the next ACH cycle. The Broker will be
responsible for the Merchant interface on all claims. This policy does not apply
to phone cards or airtime cards as there is a no refund-no return policy on all
cards generated by Qxpress(TM). A restocking fee of 15% will be applied to all
returned goods. This fee will be deducted from the ACH credit on the cycle
following the receipt of goods. The RGA # must be visible on all returned goods
in order to be accepted.
VIII. ACTIVATION:
Broker and/or Merchant shall pay for all activated calling cards via
ACH program, which will debit the designated merchant account every week for the
previous week's sales.
IX. OBLIGATIONS OF Q Comm:
A. Q Comm shall provide the Qxpress(TM) terminal to Broker's Merchants
subject to the Q Comm, Inc. acceptance of the "SERVICES AND RENTAL AGREEMENT"
and the ACH Agreement.
X. Xxxxxxx will be the sole provider of its own prepaid products.
C. Q Comm shall be solely responsible for developing and implementing
the terms and conditions for use of Qxpress(TM).
X. OBLIGATIONS OF BROKER:
A. Broker is required to adhere to the following performance
minimums:
1) Minimum performances, outlined in the "SERVICES AND RENTAL
AGREEMENT," must be maintained quarterly by 75 percent of the
Qxpress(TM) terminals placed by Q Comm, Inc. in Broker's behalf.
2) Broker must place a minimum of sixty (60) Qxpress(TM)terminals in
each twelve (12) month period.
3) If these performance minimums are not met, Q Comm, Inc. may
terminate the Broker Agreement at any time.
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B. If this Agreement is terminated by either party, Q Comm, Inc. will
continue to support the existing Qxpress(TM) terminals under all existing
contract terms for a period of 180 days from the date of notice as defined in
paragraph XVIII ("Notices").
C. Broker accepts the "SERVICES AND RENTAL AGREEMENT" and ACH Agreement
in effect at the time of this Agreement. (Schedule "B"). Q Comm's "SERVICES AND
RENTAL AGREEMENT" and ACH Agreement are subject to change with five (5) day
notice to Broker. Hargray may terminate upon ten (10) day notice if the terms of
this change are undesirable to Hargray.
D. Broker must obtain Q Comm's written approval of all content and
artwork for any prepaid calling cards, packaging and point-of-purchase materials
as a condition to activation of PINs. Q Comm shall have the right to change,
add, or modify the copy in any way. All modifications by Broker to pre-approved
content or artwork must also be approved in writing by Q Comm.
E. Q Comm Prepaid Phone Card "Custom/Private Label Card Terms &
Conditions" (Schedule "C") must be clearly disclosed on the back of each custom
prepaid calling card, insert or point-of-purchase material.
XI. DELIVERY, TITLE, RISK OF LOSS, SECURITY AND FRAUD CONTROL:
A. Broker, upon taking delivery of the Qxpress(TM) terminal from Q
Comm, shall bear the risk of loss (unless contracted under the Q Comm, Inc.
"SERVICES AND RENTAL AGREEMENT") and be solely responsible for all losses,
damages, claims and liabilities caused by:
1. PINs, active cards, and inactive cards which are mishandled, damaged
or stolen;
B. Q Comm shall collect all revenues from retailers as per the ACH
agreement enclosed in Schedule "B".
C. Broker shall bear the risk of loss for fraud, theft or misuse of the
Qxpress(TM) terminal by Broker's employees. Q Comm will use its best efforts to
inform Hargray of any fraud or misuse as and if Q Comm becomes aware.
D. The parties agree that, upon activation and authorization of sale by
the Qxpress(TM) terminal, the Merchant shall be responsible for the following as
per the "SERVICES AND RENTAL AGREEMENT":
1. all lost and/or stolen cards, for which no refunds or credits will
be issued by Q Comm;
4
2. use of activated Calling Cards generated by Qxpress(TM) (including
calls to wrong numbers), regardless of whether such use occurred by
the Merchant, a person authorized by the end user to use the
Qxpress(TM) terminal, or by a person not authorized by end user; and
3. improper activation by Merchant of incorrect unit amounts, improper
decrementation by Q Comm or transmission difficulty.
E. Q Comm shall, in its sole discretion, have the right to immediately
deactivate any particular Qxpress(TM) terminal, PIN or batches of PINs in the
event Q Comm reasonably believes that same have been improperly or fraudulently
activated.
F. All shipments are F.O.B. Utah.
XII. FORCE MAJEURE:
Q Comm shall not be liable for any delay or nonperformance under the
terms of this Agreement due to causes beyond its control, including but not
limited to, acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections,
fires, explosions, earthquakes, nuclear accidents, floods, strikes, power
blackouts, severe weather conditions, failure by Broker to fulfill any of its
obligations under this Agreement, acts of third parties, or acts or omissions of
common carriers (collectively referred to as "Force Majeure Conditions")
XIII. INDEMNIFICATION AND LIMITATIONS OF LIABILITY
A. Q Comm shall exercise its best efforts to avoid network service
interruption. However, in the event of a network service interruption or
equipment failure, Q Comm's liability hereunder shall be limited to the retail
cost of the PIN subject to the interruption, provided that such interruption was
caused solely by Q Comm's willful act or omission or its negligence. Q Comm
shall not be liable for any interruption caused by the negligence or any act or
omission of Broker, the Card user, carrier, switch provider or any third party.
B. Except as otherwise stated herein each party will defend, indemnify
and hold harmless the other party, its owners, parents, affiliates,
subsidiaries, brokers, directors, officers, shareholders, and employees from and
against any and all losses, costs, claims, awards, liabilities, damages, and
expenses (including reasonable attorneys fees) brought or claimed by third
parties, relating to or arising out of the negligence or willful misconduct of
either party in the performance of this Agreement.
C. Q COMM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR USE OR OTHER WARRANTY OF QUALITY, EXCEPT AS EXPRESSLY PROVIDED IN THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IN NO EVENT SHALL Q Comm BE LIABLE TO BROKER
OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS.
5
XIV. INTELLECTUAL PROPERTY; USE OF MARKS:
A. Broker acknowledges Q Comm's exclusive ownership of all Q Comm
designated trademarks, service marks and other symbols (the "Marks") relating to
the PIN and agrees not to assume any rights in the Marks.
B. It is understood and agreed by both parties that nothing in this
agreement is intended to grant to Broker the right to engage in the business of
offering goods or services using Q Comm's trade name, trademark, service xxxx,
logotype, advertising, or other commercial symbol or related characteristics.
XV. CONFIDENTIALITY:
Both parties agree that all of the terms and conditions of this
Agreement are confidential. Press releases or other public announcements
("Public Releases") by either party concerning the existence of this Agreement,
terms of this Agreement, or the services to be provided under this Agreement may
not be disclosed publicly, other than to service vendors for the purpose of
effectuating this Agreement, without the prior written consent of both Q Comm
and Broker.
XVI. ASSIGNMENT:
Q Comm may at any time assign its rights, obligations or duties, in
whole or in part, or any other interest hereunder without Broker's approval.
Broker may not assign its rights, obligations or duties, in whole or in part, or
any other interest hereunder without the prior written consent of Q Comm. In the
event of assignment by Q Comm to another entity, Hargray will have the right to
terminate the agreement upon ten (10) day notice.
XVII. INJUNCTIVE RELIEF:
Broker hereby agrees that the remedy at law for any breach or
threatened breach by it of the covenants in this Agreement may be inadequate and
that Q Comm would suffer irreparable harm; therefore, it is mutually agreed and
stipulated by the parties hereto, that in addition to any other remedies at law
or in equity which Q Comm may have, Q Comm shall be entitled to obtain in a
court of law and/or equity a temporary and/or permanent injunction restraining
Broker from a further violation or breach of such covenants.
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XVIII. ATTORNEY'S FEES:
In the event that an action at law or in equity is brought by Q Comm to
enforce the terms and conditions of this Agreement, or to prevent a breach
thereof, and Q Comm is the prevailing party, Broker shall be liable for Q Comm's
reasonable attorneys fees and costs in addition to any other relief awarded to Q
Comm pursuant to such action.
XVIX. NOTICES:
Notices required to be given under this Agreement shall be effective
when mailed by prepaid certified mail return receipt requested to:
Q Comm International, Inc.
0000 Xxxxx 0000 Xxxx
Xxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxxx, President
Hargray Wireless
856 Xxxxxxx Xxxxxx Pkwy, Bldg. A
Xxxxxx Xxxx, XX 00000
Xxxx Xxxxxxxx, Director of Operations
XX. GENERAL:
A. This Agreement constitutes the entire understanding between Q Comm
and Broker and supersedes any and all prior or contemporaneous oral or written
statements and representations made by either party to the other.
B. Failure on the part of either party to enforce any provision of this
Agreement in any one instance shall not be construed as a general waiver or
relinquishment of the right to enforce such provision.
C. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected thereby.
D. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more counterparts shall have been signed by each party and delivered
to the other party. The undersigned represent and warrant that they are duly
authorized by the parties to enter into and sign this Agreement and by such
signatures do bind the parties to the terms of this Agreement.
7
E. The parties agree: (i) this Agreement shall be construed in
accordance with the internal laws of the State of Delaware; (ii) if any dispute
arises concerning this Agreement, venue shall be laid in the local, state or
federal courts of the original defendant in such action.
XXI. NON-DISCLOSURE
A. During the course of this Agreement, both parties shall become aware
of certain methods, practices, and procedures concerning the practice of
business, all of which Broker and Q Comm agree are proprietary information and
as such are trade secrets.
B. Both parties will not at any time, either during this Agreement or
thereafter divulge, furnish, or make available, either directly or indirectly,
to any person, firm, corporation or other entity any proprietary information
used either party. Both parties agree that all such matters and information
shall be kept strictly and absolutely confidential.
IN WITNESS WHEREOF, the parties agree that this Agreement sets forth the
complete understanding of the parties and may not be modified except in writing
signed by both parties.
Hargray Wireless Q Comm International, Inc.
By:/s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------- ------------------------------
Its: Director of Operations Its: President
-------------------------------- ------------------------------
Date: October 11, 2000 Date: October 11, 2000
------------------------------ -----------------------------
Phone #: Phone #: (000) 000-0000
----------------------------- --------------------------
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AMENDED SCHEDULE "A"
1. Q Comm will provide the Qxpress(TM) terminal at its expense.
2. Q Comm will provide installation and training support for each approved
location.
3. Q Comm will arrange for Internet access for activity reporting on all
locations installed under this agreement.
4. Q COMM, Inc. will provide generic blank phone cards at the rate of $.10
each. A credit of $.10 per sale will be given to the Merchant on each
billing to offset the cost of the cards. Private labeled cards can be
provided to the Merchant at actual cost. All cards are non-refundable.
5. All Qxpress(TM) terminals remain the sole property of Q Comm Inc.
6. Execute an approved Q Comm Inc. agreement for all Qxpress(TM) placements.
7. Provide a 30 day sales forecast of Qxpress(TM) units.
8. Maintain responsibility for collection from the individual client. Hargray
Wireless will pay Q Comm the following percentages on gross revenue for all
Qxpress(TM) services and Qxpress(TM) terminals:
o 4% on all gross revenue from Qxpress(TM).......$0 < $25,000 / week
o 3% on all gross revenue from Qxpress(TM).......>$25,000 < $50,000 / week
o 2.5% on all gross revenue from Qxpress(TM).......>$50,000 / week
9. Provide Q Comm Inc. with the appropriate documentation for an ACH of each
Hargray Wireless client.
10. A Qxpress(TM) service charge will be assessed based on the gross revenue
schedule below:
Less than $150 gross revenue per week............................$14.25
Greater than $150 gross revenue per week........................No Charge
11. Q Comm Inc will process all Hargray Wireless orders in a timely fashion and
drop ship directly to the designated location.
12. All products and shipments are FOB Utah.
13. Q Comm Inc. will ACH Hargray Wireless clients every week (Monday) for all
activity for the prior seven days. The ACH will clear all monies except the
agreed upon commissions.
9
14. Offer 800 number customer service for all Qxpress(TM) products.
15. Q Comm will launch all pin numbers provided by Hargray Wireless to only
those Hargray Wireless clients. One download of pins per month is provided
at no charge. Each additional download is $250.
16. Q Comm will create one cardback for each Hargray Wireless product at no
charge. Any additional cardback changes are $75.00 each.
17. Qxpress(TM) demonstration terminals are available for a fee of $35 per
month (paid in advance).
18. Prices and terms are good for 30 days from date of this agreement. Subject
to change without notice.
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SCHEDULE "B"
SERVICES AND RENTAL AGREEMENT
This Agreement is made this _____day of ________________ ,2000 by and between
__________________________________ (the "Merchant") and Q COMM, Inc. Q COMM Inc.
is a wholly owned subsidiary of Q COMM International, Inc. Qxpress Management
System ("Qxpress(TM)") is a point-of-sale printing device for prepaid service.
The Merchant wishes to utilize the Qxpress(TM) Device for their phone card,
wireless, and any additional prepaid services as available for sales at their
designated location(s). A list of the locations is attached to this Agreement
and incorporated herein by reference.
IN THE EVENT OF A DISPUTE, THIS AGREEMENT IS SUBJECT
TO ARBITRATION AND MEDIATION.
1. Q COMM, Inc. will provide Qxpress(TM) to the Merchant at no charge. The
Merchant is required to produce a weekly minimum of $______ in gross
prepaid card revenue. If this minimum is not met, a service fee of $_______
will apply. This service fee will be included in the ACH accounting each
week that performance falls below the minimum. The service fee will
commence the fourth Monday following the shipment of the Qxpress(TM)
terminal. Optional weekly ACH reports are available to the Merchant upon
request for a $2.00 weekly charge.
2. Q COMM, Inc. will provide blank Qxpress(TM) phone cards at the rate of $.10
each. A credit of $.10 per sale will be given to The Merchant on each
billing to offset the cost of the cards. All blank cards are
non-refundable. Private labeled cards may be provided at an additional fee
with no offset credit by Q Comm, Inc..
3. Compensation: Q COMM, Inc. will compensate the Business for prepaid telecom
revenues per month as per the following:
Product Product
Description Percentage Description Percentage
--------------- -------% --------------- -------%
--------------- -------% --------------- -------%
--------------- -------% --------------- -------%
----------------------------------------------------
Initial wireless phone order: Send ________ phones.
----------------------------------------------------
4. Qxpress(TM) is and shall remain the sole property of Q COMM, Inc., and
shall be surrendered on demand.
5. Q COMM, Inc. reserves the right to remove a Qxpress(TM) from a location if
sales in that location do not warrant the Qxpress(TM) placement.
6. The Merchant shall provide the following: 1) a safe and secure place for
the Qxpress(TM) to be located, 2) a grounded power outlet, 3) phone line
access, and 4) a point-of-sale material location.
Merchant:
The Merchant's store name: _________________________________________________
The Merchant's store address: ______________________________________________
City/State/Zip: ______________________________________
Owner/Officer: (print): ____________________________________________________
Owner/Officer: (signature): ________________________________________________
The Merchant's store telephone number: ______________________________________
Q COMM, Inc.
Representative: ____________________________________________________________
Q Comm home office: ________________________________________________________
ORIGINALS MUST BE SENT TO Q COMM, INC.
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7. Q COMM, Inc. will provide standard point-of-sale materials at it's own
expense. Private labeled point of sale material can be provided by Q COMM, Inc.
at the Merchant's expense. The Merchant can provide their own point of sale
materials subject to approval by Q COMM, Inc. (Q COMM, Inc. must assure that any
advertising meets FCC or Public Service or Utility Commission Guide lines).
8. Qxpress(TM) shall remain at the location it is initially located in and shall
not be moved without prior approval from Q COMM, Inc. (a fax or E-mail with
receipt confirmed shall also serve as notice).
9. PAYMENT: Every Monday, an agreed upon account will be debited by Automated
Clearing House (ACH) or Electronic Funds Transfer (EFT) (herein after referred
to as the "debit"). The debit will be initiated by Q COMM, Inc. If debit is
refused by The Merchant's bank, Qxpress(TM) will be turned off until the debit
is honored and a service fee of $25.00 for insufficient funds will be assessed
before Qxpress(TM) is reactivated. Two refused debits will cause this Agreement
to be terminated immediately without notice.
10. In the event Qxpress(TM) malfunctions, the store clerk or manager will call
Qxpress Client Services at (000) 000-0000. If the Qxpress cannot be repaired
with instructions over the phone or by phone updates, Q COMM, Inc. will send a
replacement unit via overnight delivery.
11. Any disputes between The Merchant and Q COMM, Inc. that cannot be resolved
will be submitted to arbitration under the rules and regulations of the American
Arbitration Association. Either party may invoke this paragraph after providing
10 days written notice to the other party. All cost of arbitration shall be
divided equally between the parties. Any award may be enforced by a court of
law. Dispute mediation, or arbitration will be handled at the specific court
located in the county of Utah, State of Utah.
12. ENTIRE AGREEMENT: This is our entire agreement and cannot be changed unless
agreed to in writing by both parties.
13. FORCE MAJEURE: If any part of this agreement is invalidated by local,
county, state or federal rules or regulations, or a court of law, the balance of
this agreement will remain valid.
14. TAXES: Q COMM, Inc.'s carriers are responsible for collection and payment of
Federal excise and applicable State taxes unless the local, county or State
laws, rules, and regulations require that the taxes be collected at the time of
sale and reported to the taxing authorities by the Merchant. Taxes may be
collected from the card user on a per call or per minute basis. There may be
taxes that Q COMM, Inc. will collect and pass through to The Merchant. Any
additional taxes levied by Federal, State, or local entities will be passed on
to The Merchant. Any taxes collected by The Merchant will be their sole
responsibility to remit to proper taxing authorities. This statement is not
advice on the collection or reporting of taxes and we suggest that each Merchant
contact their CPA, Accountant or taxing authority in their states for the
correct taxes or reporting of same from the sale of any Prepaid
Telecommunication Product.
15. DIAL AROUND: The FCC in October 1997 mandated that all 800 or 888 calls from
a pay phone be compensated to the pay phone owner. A surcharge ($.49) may be
added to each call for toll free access from a pay phone. The Merchant is not
responsible for collecting and paying these dial around charges.
16. RETURN GOODS POLICY: All returned goods must be authorized by Q Comm, Inc.
using a Return Goods Authorization "RGA" form. All returned goods commissions,
Broker and Merchant, will be charged back to the appropriate commissioned party
on the next ACH cycle. The Broker will be responsible for the Merchant interface
on all claims. This policy does not apply to phone cards or airtime cards as
there is a no refund-no return policy on all cards generated by Qxpress(TM). A
restocking fee of 15% will be applied to all returned goods. This fee will be
deducted from the ACH credit on the cycle following the receipt of goods. The
RGA # must be visible on all returned good shipments in order to be accepted.
17. TRANSFER OF RIGHTS OR ASSIGNMENT: This agreement shall be binding on any
successors of the parties. Neither party shall have the right to assign its
interests in this Agreement to any other party, unless the prior written consent
of the other is obtained.
18. WARRANTIES: Neither party makes any warranties with respect to the use of
Qxpress(TM) by either party or by any third party. In no event will Q COMM, Inc.
be liable for direct, indirect, incidental, or consequential damaged, that are
in any way related to Qxpress(TM) or its carriers.
19. TERMINATION: This Agreement can only be terminated by Q COMM, Inc. by
providing a five (5) day advance written notice. The Merchant can terminate with
30 days advance written notice if the terms of this agreement are not being met.
20. GOVERNING LAWS: This Agreement is governed by the laws, rules and
regulations of the State of Utah.
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[QCOMM LOGO]
ACH AGREEMENT
Authorization and Agreement for Automated Clearing House (ACH)
Debits and Credits
Company:
-----------------------------------------------------------------------
I (we) authorize: Q COMM International, Inc. herein after called "Company", to
initiate credit and or debit entries and adjustments for any credit entries in
error to my (our) checking account indicated below and the depository named
below, herein after called "Depositor", and to credit and/or debit the same such
account.
Depositor name (Bank name):
----------------------------------------------------
Address:
-----------------------------------------------------------------------
City, State and Zip or Postal Code:
------------------------------------------
Phone Number: Fax Number:
--------------------------- -------------------------
Bank Service Representative:
---------------------------------------------------
Transit Number/ABA Number:
-----------------------------------------------------
Account Number:
----------------------------------------------------------------
This authority is to remain in full force and effect until Company has received
written notification from me (us).
By: By: Q COMM Inc.
-------------------------------------
(Please Print)
Its: Client Mgr:
----------------------------------- -----------------------
(Title)
Signed: H O:
-------------------------------- ----------------------------
Date: Date:
-------------------------------- ----------------------------
PLEASE ATTACH A VOIDED CHECK OR DEPOSIT SLIP TO THIS FORM. WE NEED THIS TO GET
THE ACTUAL ROUTING AND ACCOUNT NUMBERS.
Any errors and/or disputes must be corrected within two banking days of the
initiating transaction. Thank you for your confidence and trust.
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SCHEDULE "C"
CUSTOM/PRIVATE LABEL CARD TERMS AND CONDITIONS
GENERAL ARTISTIC AND CONTENT GUIDELINES FOR WHOLESALE PIN'S AND CUSTOM PRIVATE
LABEL CARDS
CARDS
All card backs must disclose the following with regulatory requirements:
1. Made in the USA
2. Non-refundable
3. Rates subject to change without notice
4. The expiration date must appear on the card back.
5. Network Services provided by a specialized phone card network
6. The specific account access PIN must be printed on the card
7. Toll free access number must be printed on the card
8. The customer service number or instructions on how to reach customer
service must be printed on the card
9. Any applicable surcharges i.e. Payphone surcharge, Domestic surcharge and
International surcharge MUST BE FULLY DISCLOSED on the card back and
packaging back.
10. Any applicable minute rounding increment must be disclosed on the card back
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AMENDED SCHEDULE "D"
PRODUCT PRICE LIST AND BROKER COMMISSION SCHEDULE
HARGRAY WIRELESS PRODUCTS ONLY
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SCHEDULE "E"
Request for Return Goods Authorization
(RGA Request)
(Q COMM cannot accept any returned merchandise without a RGA #)
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Procedure: 1. Call (or FAX) Q Comm with the information listed below
2. Q Comm will research the request and call back within 24 hours
3. If approved, Q Comm will fax a RGA containing
1) a RGA # and 2) a mailing label or Q Comm will call
with a RGA # and address.
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Date Company
------------ -------------------------------------------
Street
-------------------------------------------
City, State, zip
-------------------------------------------
Telephone FAX
--------------------- --------------
Contact Person
-------------------------------------------
Description of Merchandise
-------------------------------------------------------------------
-------------------------------------------------------------------
Number of items being returned
-------------------
Reason for RGA Request
-------------------------------------------------------------------
-------------------------------------------------------------------
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