Exhibit 10.11
(SLM LOGO)
000 Xxxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxx, XX 00000
Office: (000) 000-0000
Toll Free: (866) SLM-LEAD
Fax: (000) 000-0000
xxx.xxxxxx.xxx
TBeV PAYMENT AGREEMENT
BETWEEN
SALES LEAD MANAGEMENT INC.
AND
KENT FINANCIAL IN COSTA RICA
I Xxxx Xxxxxxxxxxx, acting as a Managing Representative of Kent Financial in
Costa Rica authorize Sales Lead Management to enter into an agreement with Kent
Financial for a total of 30 users on The Broker's e-Vantage web based software.
This is a 90 day commitment. After 90 days, the term will automatically renew
for a period of 1 year. The fee is $100.00 USD per month per user which equals
$3,000.00 USD each month. This represents the monthly licensing fee for
unlimited individual use of The Broker's e-Vantage for 30 users. Payment must be
wired into SLM's corporate bank account on or before the 1st of every month
commencing on August 1st 2005.
The dialer portion of TBeV is still under construction for Kent Financial and
will be completed once Kent Financials technical support department provides SLM
with the technical data they requested.
I acknowledge that any request to terminate these services must occur in writing
to SLM Inc., 000 Xxxxxxxx Xx. suite 130N Melville, NY 11747 at least 30 days in
advance of the termination date.
Sales Lead Management Inc. acknowledges that all proprietary information stored
on SLM servers or SLM databases are NOT property of SLM Inc., or any of its
subsidiaries or employees. SLM Inc. will utilize all security measures discussed
to protect all database information.
Please allow my signature along with the signature of Xxxxxxx Xxxxxxxxxx,
National Sales Manager at SLM as acknowledgement to allow Sales Lead Management
Inc. to start developing the Kent Financial Intro Flash and assign 30 user names
and passwords on TBeV. I agree with the amount stated and will wire the amount
to SLM's corporate account ON A monthly basis.
/s/ Xxxx Xxxxxxxxxxx PRESIDENT
--------------------------------- ------------
Xxxx Xxxxxxxxxxx - Xxxx Financial Date
---------------------------------
Xxxxxxx Xxxxxxxxxx - SLM
(C.R. OFFICE)
OFICENTRO LA SABANA, EDIFICIO 7 PISO 8 SAN XXXX, C.R.
-----------------------------------------------------
Kent Financial Office Address
PLEASE USE THE FOLLOWING CONTACT INFO FOR THE WEB INTERFACE AND FLASH:
SALES LEAD MANAGEMENT, INC.
SUBSCRIBER AGREEMENT
AGREEMENT made this 1st day of August, 2005 between SALES LEAD MANAGEMENT,
INC. ("SLM"), a Delaware corporation having offices located at 000 Xxxxxxxx
Xxxx, Xxxxx 000X, Xxxxxxxx, XX 00000 and KENT FINANCIAL ("Subscriber") with
offices at Oficentro La Sabana Edifico 7 PIS03 San Xxxx Xxxxx Rica.
WHEREAS, SLM owns and operates its proprietary "Broker's E-Vantage"
sales lead management system and related software and documentation accessible
by its customers via the Internet (the "System");
WHEREAS, Subscriber desires to contract with SLM, and SLM desires to
provide Subscriber with the use of and access to the System upon the terms and
conditions set forth herein;
NOW THEREFORE, the parties agree as follows:
1. SERVICES TO BE PROVIDED. Subject to the terms and conditions set
forth herein, SLM agrees to provide Subscriber with a non-exclusive limited
license to use and access the System. The System presently provides the
functions described on Schedule A annexed hereto and may be modified from time
to time by SLM, at SLM's sole and exclusive discretion.
2. CHARGES AND TERMS OF PAYMENT. In consideration of the use of and
access to the System, Subscriber agrees to pay SLM the license fees and charges
as set forth on Schedule B annexed hereto. In addition, Subscriber shall be
responsible for payment of all Federal, state, and local taxes, if any, other
than taxes assessed against SLM's income, and for telecommunication and
connectivity charges relating to Subscriber's use and access of the System, and
related equipment at Subscriber's premises. Invoices for Subscriber's use of and
access to the System shall be calculated in accordance with the scheduled
charges and shall be rendered monthly. Payment by Subscriber of applicable fees
and charges will be due upon issuance of the invoice for such fees and charges.
Additional fees, charges and other terms may apply in connection with the
provision of new products or services offered by SLM, which shall be mutually
agreed upon by the parties hereto.
3. SUBSCRIBER DATA. In connection with Subscriber's use of the System,
the parties acknowledge that SLM will collect from Subscriber certain data and
information and maintain that data on its database (the "Data"). SUBJECT TO
SECTION 11(d) BELOW, ALL DATA AND RIGHTS THEREIN SHALL BE THE EXCLUSIVE PROPERTY
OF SUBSCRIBER.
4. ACCOUNT NUMBERS, USER I.D. CODES AND PASSWORDS. Subscriber will be
assigned an account number to be used for billing purposes. User ID codes and
associated passwords will be assigned to Subscriber and/or Subscriber's
employees who Subscriber notifies SLM in writing are authorized to access the
System. Subscriber and its employees may gain on-line access, via
secure point-to-point connections, to the System by utilizing their User ID
codes and passwords. If an authorized user ("User") becomes ineligible to access
the system by virtue of the termination of such User's employment or for any
other reason, Subscriber shall (i) promptly notify SLM of such termination; and
(ii) terminate such employee's User ID code and password. SLM shall not be
responsible for access to and/or reports ordered utilizing User ID codes and
passwords by unauthorized Users. User ID codes and passwords may be changed in
the sole discretion of SLM at any time.
5. CERTIFICATION BY SUBSCRIBER. Subscriber expressly agrees and
acknowledges the following:
(a) In using any data, information, content or reports received by
it as the result of the use of and access to the System, Subscriber expressly
assumes all risks, known and unknown, relating thereto.
(b) Subscriber will utilize all data, information, content and
reports provided by SLM hereunder solely in connection with its lawful
operations (including, without limitation, e-mail usage) and will not request or
use such information for any purpose which may be prohibited by applicable law,
rule or regulation. All such information shall be utilized and maintained by
Subscriber in such manner as may be required by applicable laws, rules or
regulations.
(c) The System is designed to operate in conjunction with the
hardware and connectivity specifications designated by SLM, which Subscriber
acknowledges it is solely responsible to procure and maintain. The terminals or
other equipment used to access the System will be operated only by authorized
employees of Subscriber who have received sufficient training in the use and
operation thereof and who are aware of the limitations and other provisions
contained in this Agreement. Subscriber agrees to (i) take all reasonable
measures to prevent unauthorized use of such terminal(s) or equipment and access
to the System by any person other than authorized and designated operators, and
(ii) to establish, and enforce policies whereby its employees are forbidden to
access the System except as provided for herein.
(d) Each attempt by Subscriber or its employees to access the
System shall constitute a reaffirmation of the representations and agreements
set forth in this Agreement.
(e) The System and all proprietary rights and intellectual
property rights relating to the System are the sole and exclusive property of
SLM, and Subscriber shall have no claim relating thereto. Subscriber expressly
acknowledges and agrees that SLM is and shall remain the exclusive owner of the
System and all source code, object code, machine language, software, and all
intellectual property rights, patent rights, trademarks, copyrights and trade
secrets therein and associated therewith, and as may be associated with any
other business owned or operated by SLM or its principals (collectively, the
"SLM Intellectual Property").
6. REPRESENTATIONS AND WARRANTIES OF SLM. SLM hereby represents and
warrants to Subscriber as follows:
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(a) SLM is the owner of the System and has full right, power and
authority to execute, deliver and perform its obligations under this Agreement.
(b) The Intellectual Property rights utilized in connection with
the System and performance of the Services hereunder do not violate any rights
of any third party, and there is currently no actual or threatened suit by any
such third party based on an alleged violation of such rights by SLM.
(c) The System shall function substantially in accordance with the
specifications set forth on Schedule A annexed hereto.
7. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber hereby
represents and warrants to SLM as follows:
(a) The execution, delivery and performance of this Agreement has
been duly authorized by all necessary action on the part of Subscriber and does
not violate any provision of applicable law, rule or regulation.
(b) Subscriber shall make no claim nor assert any interest or
right in the SLM Intellectual Property.
8. CONFIDENTIAL INFORMATION.
(a) Each party undertakes to retain in confidence the non-public
terms of this Agreement and all other non-public information and know-how
disclosed pursuant to this Agreement which is either designated as proprietary
and/or confidential or by nature of the circumstances surrounding disclosure,
ought in good faith to be treated as proprietary and/or confidential, and all
copies thereof and notes relating thereto ("Confidential Information");
provided, however, that each party hereto may disclose the terms and conditions
of this Agreement to its immediate legal and financial consultants. The term
"Confidential Information" does not include any information which (i) at the
time of disclosure or thereafter is generally available to the public (other
than as a result of a disclosure directly or indirectly by a party or its
representatives in violation of this Agreement), (ii) is or becomes available to
a party on a non-confidential basis from a source other than the other party or
its representatives, provided that, to the receiving party's knowledge, such
source was not prohibited from disclosing such information to such receiving
party by a legal, contractual or fiduciary obligation owed to the other party,
(iii) was in a party's possession or knowledge prior to its being furnished by
or on behalf of the party, prohibited from disclosing such information to such
party by a legal, contractual or fiduciary obligation owed to the other party,
(iv) is developed by the receiving party independently of any disclosure of such
Confidential Information by the disclosing party; or (v) whose disclosure is
required by applicable law, rule or regulation. Each party agrees not to
disclose the other party's Confidential Information to any third party without
the prior written consent of the disclosing party. A party's disclosure of
Confidential Information as required by government or judicial order is not
prohibited by this Agreement, provided that the disclosing party gives the other
party prompt notice of such order and assists in the procurement of appropriate
protective order (or equivalent) imposed on such disclosure. Nothing contained
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herein limits either party's right to develop products independently without the
use of the other party's Confidential Information. Except as may otherwise be
specified in a duly countersigned rider or amendment hereto, to the extent not
inconsistent with this Section 8, the terms of any non-disclosure agreement(s)
entered into between the parties prior to this Agreement expressly survive the
execution of this Agreement and are deemed incorporated herein by reference.
(b) Each party agrees that money damages would not be a sufficient
remedy for any breach or threatened breach of this Section 8 by it and that the
other party shall be entitled to equitable relief, including an injunction and
specific performance, in the event of any such breach or threatened breach, in
addition to all other remedies available at law or in equity without the
necessity of posting any bond or other security or proving that monetary damages
would be an inadequate remedy. Such remedies shall not be deemed to be the
exclusive remedies for a breach of this Agreement but shall be in addition to
all other remedies available at law or in equity.
9. DISCLAIMERS AND LIMITATION OF LIABILITY
(a) Subscriber expressly agrees that use of and access to the
System is at Subscriber's sole risk. Neither SLM nor its affiliates, officers,
directors, shareholders, employees or agents warrant that the System or any
services rendered by SLM will be uninterrupted or error-free, nor do they make
any warranty as to the results (including cost savings) that may be obtained
from the use of the System or Services or as to the accuracy, reliability or
currency of any data, information or content provided therefrom. THE PARTIES
EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE WARRANTIES, LIMITATIONS AND EXCLUSIONS
SET FORTH IN THIS AGREEMENT (I) REPRESENT THE PARTIES' AGREEMENT AS TO THE
ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT THE AMOUNTS PAYABLE BY
SUBSCRIBER TO SLM PURSUANT TO THIS AGREEMENT REFLECT SUCH ALLOCATION OF RISK,
WITHOUT WHICH NEITHER PARTY WOULD HAVE BEEN WILLING TO ENTER INTO THIS
AGREEMENT; AND (II) FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
(b) THE SYSTEM AND ANY SERVICES ARE PROVIDED BY SLM ON AN "AS IS"
AND "AS AVAILABLE" BASIS. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, SLM MAKES
NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE
OPERATION OF THE SYSTEM AND SERVICES OR THE DATA, INFORMATION, CONTENT,
MATERIALS OR PRODUCTS OBTAINED THEREFROM. TO THE FULLEST EXTENT PERMISSIBLE BY
APPLICABLE LAW, RULE, OR REGULATION, SLM DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL SLM, ITS
AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE
LIABLE TO SUBSCRIBER OR ANY THIRD-PARTY FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST
PROFITS AND BUSINESS INTERRUPTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING
NEGLIGENCE, ARISING IN ANY WAY FROM ANY PRODUCT OR SERVICE SOLD OR
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PROVIDED ON THE SLM SYSTEM, EVEN IF SLM IS EXPRESSLY ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL SLM'S LIABILITY EXCEED THE PRICE PAID BY
SUBSCRIBER FOR THE USE OF AND ACCESS TO THE SYSTEM OR THE SERVICES. NO ORAL
ADVICE OR WRITTEN INFORMATION GIVEN BY SLM OR ITS AFFILIATES, NOR ANY OF THEIR
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, OR THE LIKE, SHALL CREATE A
WARRANTY; NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE.
(c) Under no circumstances shall SLM be liable for any direct,
indirect, incidental, special, or consequential damages that result from the use
of or inability to use the System or any data, information or content obtained
from the System that results from mistakes, omissions, interruptions, deletion
of files or e-mail, errors, defects, viruses, delays in operation or
transmission, or any failure of performance, whether or not resulting from acts
of God, communications failure, theft, destruction, or unauthorized access to
SLM's records, programs, or services. Subscriber hereby acknowledges that this
paragraph shall apply to all data, information content, reports, and services
available through the System.
10. INDEMNIFICATION.
(a) Each party agrees to indemnify, defend, and hold harmless the
other party, and its officers, directors, shareholders, employees, successors
and assigns, from and against any and all actions, causes of action, claims,
demands, costs, liabilities, expenses and damages (including, without
limitation, reasonable attorneys' fees) arising out of or in connection with any
breach of any representation, warranty or covenant set forth herein. In
addition, Subscriber hereby agrees to indemnify, defend and hold SLM, its
officers, directors, shareholders, employees, successors and assigns, harmless
from and against any and all actions, causes of action, claims, demands, costs,
liabilities, expenses and damages (including, without limitation, reasonable
attorneys' fees) arising out of or in connection with the use and operation of
the System, including, without limitation, the provision or transmission of any
data, content, reports or services.
(b) If either party requests indemnification hereunder
("Indemnified Party"), it will give notice to the party from which
indemnification is requested ("Indemnifying Party") promptly after the receipt
of any claim that may be indemnifiable hereunder and afford the Indemnifying
Party the opportunity to control the defense and approve any compromise,
settlement, litigation or other resolution or other disposition of such claim
except that the Indemnifying Party will have reasonable approval as to any
settlement, and if the Indemnifying Party unreasonably fails to approve any
settlement, it will be responsible for any and all losses, liabilities, damages,
costs and expenses (including without limitation reasonable outside attorneys'
fees and expenses) in excess of and after the time of the proposed settlement.
If the Indemnifying Party assumes control over an indemnified claim, the
Indemnified Party may participate in such defense at its sole cost and expense
and shall provide the Indemnifying Party with such reasonable cooperation and
assistance as may be required in the defense of any such claim.
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11. TERM AND TERMINATION.
(a) TERM. This Agreement shall become effective as of the date
first written above ("Effective Date") and shall continue for a period of 90
days from the date hereof (the "Term") unless terminated earlier as provided
below. Each consecutive twelve (12) month period commencing on the Effective
Date and continuing through the expiration of the Term shall be referred to
herein as a "Contract Year." The Term of the Agreement may be extended upon the
mutual written agreement of the parties.
(b) TERMINATION FOR CAUSE. Notwithstanding the Term of this
Agreement as provided in Section 11(a) above, this Agreement may be terminated
at any time by either party in the event either party breaches any material
provision of this Agreement, and such breach is not cured within ten (10) days
following the breaching party's receipt of written notice of such breach from
the non-breaching party. The termination right provided in this Section 11 is
not exclusive of any remedies to which either party may otherwise be entitled in
law or in equity in the event of a breach of this Agreement.
(c) TERMINATION WITHOUT CAUSE. Following the completion of the
first Contract Year of this Agreement, notwithstanding the foregoing, either
party may terminate this Agreement with or without cause, at any time upon three
(3) months' prior written notice.
(d) RETURN OF CONFIDENTIAL INFORMATION. Upon the termination of
this Agreement by either party for any reason, each party shall promptly return
all Confidential Information belonging to the other party provided that,
notwithstanding anything contained herein to the contrary, in the event of
termination by SLM due to non-payment by Subscriber of any monies owed
hereunder, SLM shall have the right to retain and use for its benefit any Data
and all rights related thereto.
12. NOTICES. All notices and statements to be given under this Agreement
shall be given in writing, derived by hand, overnight express or similar service
(fee prepaid), or first class United States registered or certified mail with
return receipt requested (postage prepaid), or facsimile to the following
addresses (which may be changed by written notice according to the terms of this
paragraph):
IF TO SLM: Sales Lead Management, Inc.
000 Xxxxxxxx Xxxx
Xxxxx 000X
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx - National Sales Manager
Fax No.: (000)000-0000
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IF TO SUBSCRIBER: KENT FINANCIAL
OFICENTRO LA SABANA
EDIFICO 7 PIS03 SAN XXXX, COSTA RICA
ATTN: XXXX XXXXXXXXXXX
FAX NO.: 000-000-0000
All written notices and statements shall be deemed given, delivered, received
and effective upon personal delivery, the same day of sending by facsimile once
confirmed, one calendar day after sending by overnight express or similar
service, or three calendar days after mailing by first class United States mail.
13. HEADINGS. The paragraph and section headings used in this Agreement
are for purposes of convenience only and shall not be deemed a part of this
Agreement for purposes of construction or interpretation.
14. ENTIRE AGREEMENT, AMENDMENT. This Agreement constitutes the entire
agreement and understanding between the parties relating to the subject matter
hereof, and all other prior agreements or understandings, written or verbal, are
hereby superseded. This Agreement cannot be amended, waived or modified unless
the parties so agree in writing signed by both of the parties hereto.
15. ASSIGNMENT. This Agreement and the rights and duties hereunder may
not be assigned or delegated by either party without the prior written consent
of the non-assigning party, except by SLM, in connection with a sale of it's
entire business, whether such sale is accomplished by a transfer of
substantially all of its assets, by merger or otherwise provided that any such
assignee agrees in writing to be bound by the terms of this Agreement.
16. NO PARTNERSHIP. Nothing contained herein shall constitute this
arrangement to be a joint venture or a partnership between SLM and Subscriber.
17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.
18. NO WAIVER. Failure on the part of either party to complain of any
action or non-action of the other party shall not be deemed to be a waiver of
any rights under this Agreement. No waiver of any of the provisions of this
Agreement shall be deemed to be a waiver of other provisions of this Agreement,
and a waiver at any time of the provisions of this Agreement shall not be
construed as a wavier at any subsequent time of the same provisions.
19. SEVERABILITY. If any term of this Agreement is held to be invalid or
unenforceable, this Agreement shall be construed without such invalid or
unenforceable term.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts. Each counterpart
so executed shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
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21. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York, without regard to its conflicts of laws
principles. Any and all actions arising out of the performance of this Agreement
shall only be maintained in the appropriate Federal or State courts located in
the State of New York, Counties of Nassau or Suffolk and the parties irrevocably
consent to the exclusive jurisdiction of such courts. Subscriber expressly
acknowledges and agrees that the pricing and other terms herein have been
negotiated, set and calculated in reliance on Subscriber's agreement and
willingness to be exclusively and irrevocably subject to the personal
jurisdiction of the state and federal courts located in New York State, Counties
of Nassau or Suffolk and that SLM would not enter into this Agreement absent
such agreement by Subscriber.
[SUBSCRIBER] SALES LEAD MANAGEMENT, INC.
Kent Financial By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------- --------------------------------
(Print Business Name) (Signature of Authorized
Representative)
By: /s/ Xxxx Xxxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx
------------------------------------- ------------------------------
(Signature of Authorized Representative) (Print Name of Authorized
Representative)
NAME: Xxxx Xxxxxxxxxxx Title: National Sales Manager
----------------------------------- -----------------------------
(Print Name of Authorized Representative) (Title of Authorized Representative)
TITLE:
----------------------------------
(Title of Authorized Representative)
DATE DATE
------------------------------------ -------------------------------
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SCHEDULE A
SERVICES
o Custom Registered Representative Set-up
o Login Registration and password assignment
o Introductory Custom Flash campaign
o Two digital photographs captured and uploaded
o Custom digital resume' preparation and upload
o On-site or Web based introductory tutorial and workshop
o Unlimited customer service
o 100mb storage (approximately 50,000 leads) per user
o Complete security through Verisign 128bit encrypted SSL.
o 100% Redundancy via failover co-location at Globix Inc
SCHEDULE B
FEES AND TERMS
1. PERIOD OF CONTRACT
(a) This contract is for a period of 90 days. After the 90 days the
contract will automatically renew into a 1 year term.
2. MONTHLY SUBSCRIPTION FEE AND SET-UP FEE
(a) $100.00 USD based on cost associated with current terminals needed
by Subscriber, and will be kept at this level up to and including 30
terminals of usage. Payment of monthly subscription fee to commence
August 1st 2005 from the date hereof.
(b) A $200 per user set-up fee will be waived for the first 30 users.
(c) The above fees do include a FlashPro customization. Additional
charges for FlashPro customization will be assessed at a price to be
mutually agreed upon between Subscriber and SLM.
3. SECURITY DEPOSIT
(a) A security deposit in an amount equal to 0 months of subscription
fees is due upon execution of this Agreement.
4. RENEWAL OF CONTRACT
(a) Subscriber shall have the right to renew this Agreement upon at
least six (6) months prior written notice to SLM, for a period of
either one (1), two (2) or three (3) years (at Subscriber's option)
provided, that the subscription fees and other costs to be charged
to Subscriber shall be at SLM's then published rates for the System
(or any comparable system then being used). The original term and
any renewal terms shall be subject to SLM's right of termination as
provided for hereinabove.
