EXHIBIT 10.5
AGREEMENT
This Agreement ("Agreement") entered into and effective this __12__day
of July, 2002 (the "Effective Date") is made by and between REZConnect
Technologies., a New Jersey corporation ("REZConnect") and 411 Web Directory,
Inc., a California corporation ("411web"), each being referred to as "Party" and
collectively as the "Parties".
WHEREAS, The territory covered by this Agreement is the United States
(the "Territory").The Parties' rights and obligations set forth herein relate
only to the Territory;
NOW THEREFORE, in consideration of their mutual promises made herein,
and for other good and valuable consideration, of which each Party hereby
acknowledges receipt, the Parties, Intending to be legally bound, hereby agree
as follows:
1. 411web shall provide the following under this Agreement:
a. 411web hereby grants to REZConnect and its affiliates a limited,
NONEXCLUSIVE License to the Services and Products as described in
Schedule A. 411web shall Private-label the Services and Products for
REZConnect.
b. 411web agrees to provide all web hosting necessary to provide the
services required Under this Agreement.
c. 411web shall provide REZConnect with real time web-based access to
the Accounting Enterprise System ("AES"), which will allow
REZConnect to see up to the minute transactions and revenues
generated from the sale of premium yellow page Listings, premium web
directory listings, website builder web sites, banner
Advertisements, domain name registrations and search engine
submissions on REZConnect sites.
d. 411web grants to REZConnect a limited, nonexclusive, royalty-free
license to use the Name, logo, and other trademarks or service marks
of 411web and/or MyCity (collectively the "411web Trademarks") in
connection with the sale and/or other Promotion of the Services
hereunder.
2. REZConnect shall provide the following under this Agreement:
a. REZConnect shall provide all the necessary first tier end-user
customer support Related, to the use of the REZConnect Programs for
clients referred to or enrolled in The REZConnect Programs.
b. REZConnect shall pay MyCity the fees outline in Schedule B of this
Agreement.
c. REZConnect shall provide all order processing and accounting for
sales of its Franchises and/or REZConnect Programs.
(1)
3. Warranties and Guarantees
a. Except for any limited warranties expressly set forth in this
Agreement, 411web makes no warranties hereunder, and expressly
disclaims all other warranties, express or implied, including
without limitation, warranties of merchantability and fitness for a
particular purpose, non-infringement, and implied warranties arising
from course of dealing or course of performance.
4. Term and Termination
a. The term of this Agreement is for five (5) years automatically
renewable for additional two-year terms, unless 411web or REZConnect
provides the other party with written notice, within ninety (90)
days of the annual anniversary of this Agreement.
b. This Agreement may be terminated by the mutual written agreement of
the Parties.
c. Either party shall have the right to terminate this Agreement if the
other party is in Material breach of this Agreement and fails after
thirty (30) days written notice to cure any such breach.
d. Either Party shall have the right to terminate this Agreement in
writing with at least 30 Days written notice to the other Party upon
the occurrence of: (i) an assignment by the other Party for the
benefit creditors; (ii) the filing by the other Party of a petition
to have it adjudged insolvent, bankrupt or seeking a reorganization
or liquidation under any law relating to bankruptcy, insolvency or
receivership; (iii) an appointment of a receiver or trustee for all
or substantially all of the assets of the other Party unless
appointed without the other Party's consent, in which case if after
120 days such appointment has not been vacated or stayed; or (iv)
the adoption of a plan of liquidation or dissolution by the Board of
Directors of the other Party;
e. If termination of this Agreement occurs pursuant to the terms set
forth in section 4(a) Of this Agreement, all licenses granted
hereunder shall immediately terminate and each Party shall return or
destroy all Confidential Information of the other Party in its
possession. Neither Party shall be liable to the other for damages
of any sort resulting solely from terminating this Agreement in
accordance with the terms of this paragraph. All unpaid and
outstanding revenue share payments due the Parties and all
licensing, maintenance or customization fees due the Parties as of
the date of the termination or expiration shall be paid as provided
herein. All provisions of this Agreement relating to proprietary
rights, confidentiality, and indemnification as provided herein or
otherwise, shall survive the termination or expiration of this
Agreement.
5. Assignment. Either party may assign this Agreement to an affiliate
so long as such Affiliate assumes the obligations hereunder, or, in
connection with a merger or consolidation involving either party or
a sale of all or substantially all of either party's assets to the
surviving company or purchaser as the case may be, so long as such
assignee assumes the obligations of the appropriate party hereunder.
(2)
6. Confidentiality and Proprietary Interests
a. Each Party agrees that during the course of the negotiations for,
and performance under, this Agreement, information that is
confidential or proprietary may be disclosed to the other Party,
including, but not limited to, software, technical processes and
formulas, source codes, product designs, ideas, sales, cost, and
other unpublished financial information, product and business plans,
advertising revenues, usage rates, advertising relationships,
projections, and marketing data ("Confidential Information"). Except
as provided in this Agreement, the Parties shall not make any
disclosure of the Confidential Information to anyone other than its
employees who have a need to know in connection with this Agreement.
Neither Party shall make any other use of such information and upon
the termination or expiration of this Agreement each Party will
return or destroy all such Confidential Information and material
(and all copies thereof) in its possession or control. This covenant
will extend beyond the termination or expiration of this Agreement
and shall remain effective for two years from the termination or
expiration date.
b. 411web agrees that during the term of this Agreement and any time
thereafter, REZConnect's customer lists shall remain the sole
property of REZConnect and cannot be utilized for any 411web's
internal promotions, list enhancements or other promotions by other
companies without the written permission of REZConnect.
7. Intellectual Property. Each Party shall retain all right, title and
interest in and to all of its Works, materials, information or
inventions (whether or not used in connection with the activities
contemplated by this Agreement) and all copyrights, patents, trade
secrets and other intellectual property rights (the "Intellectual
Property) with respect thereto. Except as otherwise expressly
provided for herein, no license or other rights shall be granted
with respect to any Intellectual Property.
8. Indemnification
a. Each Party agrees to indemnify, defend, and hold harmless the other
Party, its directors, officers, employees and agents, and defend any
action brought against same by a third party with respect to any
claim, demand, cause of action, debt, liability, or settlement,
including court costs, reasonable expenses, and reasonable
attorneys' fees, to the extent that such action is based upon or
arises out of a claim that(I) if true, would constitute a breach of
any of that Party's obligations under this Agreement; or (ii) arises
out of the negligence or willful misconduct of that Party; or (iii)
conduct of the Party infringed or violated any rights of third
parties, including without limitation, rights of publicity, rights
of privacy, patents, copyrights, trademarks, trade secrets, and/or
licenses.
b. If either Party entitles to indemnification hereunder (an
"Indemnified Party) makes an indemnification request to the other,
the Indemnified Party shall permit the other Party (the
"Indemnifying Party" to control the defense, disposition or
settlement of the matter at its own expense; provided that the
Indemnifying Party shall not, without the consent of the Indemnified
Party enter into any settlement or agree to any disposition that
imposes an obligation on the Indemnified Party that is not wholly
discharged or dischargeable by the Indemnifying Party or imposes any
conditions or obligations on the Indemnified Party other than the
payment of monies that are readily measurable for purposes of
determining the monetary indemnification or reimbursement
obligations of Indemnifying Party.
(3)
The Indemnified Party shall notify Indemnifying Party within 30 days
of any claim for which Indemnifying party is responsible and shall
cooperate with Indemnifying Party in every commercially reasonable
way to facilitate defense of any such claim; provided that the
Indemnified Party's failure to notify Indemnifying Party shall not
diminish Indemnifying Party's obligations under this Section 9,
except to the extent that Indemnifying Party is materially
prejudiced as a result of such failure. An Indemnified Party shall
at all times have the option to participate in any matter or
litigation through counsel of its own selection and at its own
expense.
9. Interpretation of Agreement. This Agreement, together with the
Schedules attached, constitutes the entire agreement between the
Parties and supersedes all previous communications between the
Parties, and may not be released, discharged or modified except by
an instrument in writing signed by the parties. This Agreement is
made in, and shall be governed by the laws of the State of
California, regardless of its conflicts of laws provisions. Nothing
contained in this Agreement shall be deemed or construed as creating
a joint venture or partnership between the Parties. Neither Party,by
virtue of this Agreement, is authorized to act as an agent,
employee, or legal representative of the other. Neither Party shall
have the power to control the activities and operation so the other
and their status is, and at all times will continue to be that of
independent contractors.
10. Waiver of Jury Trial and Dispute Resolution. Each of the Parties to
this Agreement hereby agrees to waive its respective rights to a
jury trial of any disputes, claims or causes of action based upon or
arising out of this agreement. All disputes arising from or relating
to this Agreement, including disputes with respect to the validity
of this Agreement itself will be resolved pursuant to the procedures
and rules of this section 11. With the exception of disputes
involving breach of confidentiality, infringement of a Party's
intellectual property, or other types of claims that cause
irreparable harm for which injunctive relief through the courts is
sought by either Party, any dispute, controversy, or claim arising
under the terms of this Agreement shall be resolved as follows:
following a written notice by a Party requesting escalation of a
dispute for resolution, the senior management of both Parties shall
meet to attempt to resolve such disputes. Following such attempts,
if senior management cannot resolve the dispute within 30 days, then
either Party may resort to mediation under the Commercial Mediation
Rules of the American Arbitration Association (:AAA"). Each Party
agrees to pay its own fees and costs in connection with the
mediation and agrees to pay its proportionate share of fees owed to
AAA in connection with the mediation. If the matter is not resolved
by mediation within 30 days, either Party may only pursue a remedy
through binding arbitration in the jurisdiction of Los Angeles,
California in accordance with the Commercial Arbitration Rules of
the AAA (the "Rules"). Unless both Parties agree otherwise, the
arbitrator(s) will render the award within 90-days of appointment.
Such award will be final when rendered. Judgment on any award
rendered by the arbitrators under this Section 11 may be entered in
any court having jurisdiction thereof. Any court having jurisdiction
will enforce as a binding and final arbitral award any interim
measures ordered by the arbitrator(s). In the event that any matter
results in arbitration or legal proceeding, the prevailing Party in
such arbitration or legal proceeding shall be entitled to recover
from the other Party all reasonable fees, costs and expenses
incurred by the prevailing Party in connection with the arbitration
or legal proceeding, including without limitation, reasonable
attorneys; fees and expenses.
(4)
11. Publicity. If either Party makes any news release or public
announcement concerning this Agreement or the subject matter of this
Agreement, then it must get the other Party's prior permission in
writing. Notwithstanding the foregoing, either Party may, at any
time, make announcements which are required by applicable law,
regulatory bodies, or stock exchange or stock association rules, so
long as the Party required to make the announcement, promptly upon
learning of such requirement, n notifies the other Party of such
requirement and discusses with the other Party, in good faith, the
exact wording of any such announcement.
12. Force Xxxxxx. Neither Party will be liable for any failure to
perform any obligations (other than payment obligations) 1.
hereunder, or from any delay in the performance thereof, due to
causes beyond its control, including labor disputes, flood, riot,
fire, acts of God, acts of public enemy, acts of government
(including judicial), failure of telecommunications or similar
technical failures, or other casualty.
13. Severability. Should any provision of this Agreement be determined to
be void, invalid, or otherwise unenforceable by any court of
competent jurisdiction, such determination shall not affect the
remaining provisions hereof, which shall remain in full force and
effect.
14. Waiver. The waiver by either Party of any breach of any
pr9ovision of the Agreement by the
other Party s hall not be construed to be either a waiver of
that Party's rights regarding any succeeding breach of any
such provision or a waiver of the provision itself.
15. Execution of this Agreement. This Agreement may be executed in several
counterparts, each of which will be deemed any original but all of
which will constitute one and the same. Faxed signatures shall have
the same force and effect as original manual signatures. In the
event of any discrepancies, difference, or conflicts between the
counterparts, a counterpart signed by an office of 411 web shall
prevail.
16. Entire Agreement. This Agreement together with the schedules attached,
represents the entire understanding of the parties with respect to
its subject matter and supersedes all previous discussion and
correspondence with respect thereto, and no representations,
warranties or Agreement express or implied of any kind with respect
to such subject matter have been made by either party to the other.
(5)
17. Notices. Any notice to be given to REZConnect and 411web shall be in
writing and shall be deemed to have been given on the same day as
mailed by certified mail, postage pre-paid, return receipt requested,
addressed to the respective parties as follows, unless and until
either party notifies the other in writing of a different address:
If to REZConnect: REZConnect Technologies, Inc
000 Xxxxxx Xxx.
Xxxxxxxxx Xxxxxx, XX 00000
If to 411web: 411 Web Directory, Inc.
00000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement the day
and year first above written.
Witness REZConnect Technologies, Inc.
___________________ By____/s/ Xxxxxxx Y Brent________________________
____Michael Y Xxxxx, Pres_______________
Name & Title (Print)
Witness 411web Directory, Inc.
____________________ By____/s/ Xxxxx X. Buchanan___________
____David L Xxxxxxxx, VP________________
Name & Title (Print)
(6)
Schedule A
411web grants to REZConnect and its affiliates a limited, NONEXCLUSIVE
license to the following Services and Products:
A private-label version of the MyCity portal ("RezCity Portal") using
xxx.xxxxxx.xxx as a baseline. This includes the following 411web
eMarketplace Services:
o Website Builder - a template-based online website solution. Small
businesses buy, build and edit their website via the RezCity
portal.
o Banner Factory - a template-based online advertising solution.
Small businesses buy, build, edit and schedule their banner
advertisements via the RezCity portal.
o Premium Yellow Pages Listing - a web-based engine that allows
advertisers to move their business listing to the top portion of
its industry category within the local RezCity Internet Yellow
Pages.
o Local Website Directory - a web-based engine that allows
advertisers to move their directory listing to the top portion of
its industry category within the local RezCity Local Web
Directory.
o Search Engine Submission Service - a service that registers
businesses' websites with top search engines.
o Domain Name Registration Service - allows businesses to register
their domain name via the RezCity Portal.
All franchise materials created to solicit franchisees and train them in
the sales of the above-mentioned eMarketplace Services.
The creation of RezCity Portal will be done in stages. Stage One will take
care of the simplest and most immediate needs. Additional development will
follow and will be billed on a per-project basis.
STAGE ONE
BRANDING: search and replace every instance of "MyCity" with "RezCity" -
every logo, every text link. This includes the SPLASH PAGE, which first
time visitors see. RezConnect will be providing the RezCity logo to
411web.
HOME PAGE: make the "Visitors" tab the first page visitors see once they
get past the splash page. Change the text "Visitor's Guide" to "Home". On
the original Home page, change the text "Home: to"Local Info".
NAVIGATION: on the left nav, "Home" should link to
xxxx://xxx.xxxxxx.xxx/xxx/xxx/xxxxxx/xxxxxxxxx/xxxxxx/xx.xxxx/xxxxxx/
st.xxxx/channels/visitors_guide/
and the text"Visitor's Guide" should change to "Local Info" and link to
xxxx://xxx.xxxxxx.xxx/xxx/xxx/xxxxxx/xxxxxxxxx/xxxxxx/xx.xxxx/xxxxxx
/st.xxxx/home
(7)
YOUR TRAVEL (box on visitors guide): this will be replaced with creative
and links from Rezconnect.
RezConnect technology: any links to OneTravel - such as the Hotels link at
the top of the RezCity Portal home page - will be replaced with links to
RezConnect. Any banner ads for OneTravel, such as on
xxxx://xxx.xxxxxx.xxx/xxx/xxx/xxxxxx/xxxxxxxxx/xxxxxx/xx.xxxx/xxxxxx
/st.xxxx/channels/visitors_guide/lodging
should be removed.
ESTIMATE for Stage One work described above:
10 hours of HTML at $95/hr = $950
10 hours of Web Dev/DB engineering at $145/hr = $1450
Total: $2400
(8)
Schedule B
Setup Fee: Licensee shall pay 411web a one-time setup fee of $2,400 (the
"Setup Fee") for the Stage One creation of the RezCity Portal as described
in Schedule A. It is understood that the final Setup Fee may be more, or
less, than the $2,400 quoted and that 411web will xxxx REZConnect only for
the actual hours used during setup. 50% of the Setup Fee is due upon
acceptance of the estimate for Stage One work. The remainder is due upon
completion of Stage One work. Additional customization is available at any
time for an additional fee.
Hosting & Maintenance Fee: As of November 1, 2002, Licensee shall pay
411web a hosting and maintenance fee according to the following schedule:
0-500,000 pvs/month - $0.00
500,001-1,500,00 pvs/month - $1.50 CPM on all pvs over 500,000
1,500,001-2,500.00 pvs/month - $1.25 CPM on all pvs over 500,000
2,500,001-5,000,000 pvs/month - $0.75 CPM on all pvs over 500,000
5,000,001 and higher - $0.50 on all pvs over 500,000
Once RezCity averages at least 5,000,000 pageviews/month, we agree to
review hosting fees and renegotiate in the best interest of both parties.
License Fee: The annual license fee for 411web Products and Services as
described in Schedule A is $24,000 less a $15,000 credit in exchange for
REZConnect technology and revenue share as described below. 50% of the
annual license fee, representing the first 6 months of this agreement, is
due upon acceptance of this agreement; license fee will be billed monthly
thereafter starting with the 7th month of this agreement.
RezConnect Technology: in exchange for a partial credit on the
annual license fee, Licensee shall allow the integration of
REZConnect technology on 411web's network of directories and
portals, including the MyCity portal network.
Revenue Share: in exchange for partial credit on the annual license
fee, Licensee shall pay 411web 25% of all REZConnect technology and
411web eMarketplace services sold through the RezCity Portal.
Licensee shall also pay 411web 50% of all REZConnect sales made by
411web's direct sales initiatives via 411web's network of
directories, portals and modules. Should monthly revenue share paid
to 411web exceed $3,000, the annual license fee, pro-rated for that
month, will be waived.
(9)
