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EXHIBIT 6.8
AUTHORIZED RESELLER AGREEMENT
This Agreement (the "Agreement") is made and entered into this 10th day
of June, 1999 ("Effective Date"), by and between Xxxxx.xxx, a Delaware
corporation with its principal place of business at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, 00000, ("QORUS") and Alpha Telecom
(UK) Ltd., a Limited Company, incorporated in the United Kingdom with
offices at Xxxxxxxx Xxxxx, Xxxxxxxxxx Xxxxx Xxxxxx XX000XX ("ALPHA").
QORUS and ALPHA may be referred to hereafter individually as a "Party"
or collectively as the "Parties."
RECITALS
A. QORUS is in the business of providing certain electronic
messaging services;
B. ALPHA desires to market and resell those services specified in
the attached Exhibit A (the "Services") to ALPHA's Customers
(as defined below); and
C. QORUS is willing to provide Services to ALPHA's Customers in
accordance with the terms of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties hereby agree as follows:
1. Definitions.
1.1. "Affiliate" of a Party shall mean a corporation, partnership,
joint venture or other entity directly or indirectly, through
one or more intermediaries, controlling, controlled by or
under common control with such Party.
1.2. "ALPHA Authorized Reseller" shall mean any current or future
entities that are agreed to in writing by both QORUS and
ALPHA; such agreement shall not be unreasonably withheld by
QORUS.
1.3. "ALPHA Customers" shall mean any person, entity, or ALPHA
Authorized Reseller that is a customer of ALPHA, or a customer
of an ALPHA Authorized Reseller.
1.4. "Documentation" shall mean any user guides, manuals, operator
guides, installation guides, technical reference guides and
other similar reference materials generally made available by
QORUS to its customers to facilitate use of the Services,
which QORUS shall offer to ALPHA.
1.5. "Services" shall be defined as used in Exhibit A.
1.6. "Operating Plan" shall be defined in Exhibit B.
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2. Agreement to Provide Services/Grant of Rights
2.1. QORUS shall provide the Services to ALPHA Customers in
accordance with the pricing set forth in the attached Exhibit
A and the Operating Plan.
2.2. QORUS hereby grants to ALPHA a non-exclusive, non-transferable
right to market, promote and resell the Services to current
and prospective ALPHA Customers in the United Kingdom,
Germany, and Switzerland (in addition to other European Union
countries which shall be added upon presentation to QORUS of
satisfactory marketing plans for each such additional country)
(the "Territory"); provided, however, that ALPHA may market,
promote and resell the Services through ALPHA Authorized
Resellers, provided that ALPHA shall be responsible for such
third parties' observance of the terms and conditions of this
Agreement.
2.3. QORUS hereby grants to ALPHA and ALPHA accepts the right to
re-brand the Services and Documentation for use in accordance
with the rights granted herein, the Documentation, and
branding guidelines as mutually agreed upon by the Parties;
provided, however, that (a): any such re-branding shall comply
with QORUS' published guidelines, and shall carry a notice
identifying the Service as "Powered by QORUS" or such other
name and/or copyright notices as may be designated by QORUS,
and in a style, color and reasonable size S, and (b): any
branding with trademarks other than ALPHA's trademarks is
subject to compliance with QORUS' published guidelines.
2.4. QORUS hereby grants to ALPHA the right to utilize QORUS's
trade name and any trademarks and service marks (the
"Trademarks") in connection with ALPHA's advertising and
promotional materials used for the sale of the Services
provided that such advertising and promotional materials
comply with QORUS' published guidelines. ALPHA has paid no
consideration for the use of the Trademarks, and nothing
contained in this Agreement shall give ALPHA any right, title
or interest in the Trademarks. ALPHA agrees that it will not
at any time during or after this Agreement assert or claim any
interest in or do anything which may adversely affect the
validity or enforceability of any Trademark. In order to
comply with QORUS's quality control standards, ALPHA shall:
(i) use the Trademarks in compliance with all relevant laws
and regulations; (ii) accord QORUS the right to inspect during
normal business hours, with prior advance notice, ALPHA's
facilities used in connection with efforts to sell the
Services in order to confirm that ALPHA's use of such
Trademarks is in compliance with this Section; and (iii) not
modify any of the Trademarks in any way and not use any of the
Trademarks on or in connection with any goods or services
other than the Services.
2.5. The grants made herein by QORUS to ALPHA are non-exclusive.
QORUS reserves the right in its discretion to use other
authorized resellers of the Services covered by this Agreement
within or outside of the Territory without obligation or
liability of any kind to ALPHA. QORUS also reserves the right
to sell the Services or similar products and services to any
person or entity, using its own personnel or third parties,
without obligation or liability or any kind to ALPHA;
provided, however, QORUS shall not, during the term of this
agreement or after termination thereof, knowingly contact
current ALPHA Customers for any purpose (other than through
general advertising programs) except in the performance of its
obligations hereunder. It is expressly understood that the
client list will at all times remain the exclusive property of
Alpha.
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2.6. ALPHA acknowledges that nothing in this Agreement grants ALPHA
any ownership interest in the Services, other than full
ownership of the customer list, including clients' email
addresses (based on ALPHA's registered domain name for the
Services), and Personal numbers for fax and voicemail access;
and that upon termination of this Agreement, ALPHA shall make
no claims of such ownership or of any further interest in the
Services other than those specified herein. If Alpha
terminates this agreement for any reason during the first six
months, except by reason of a breach by QORUS, then Alpha will
continue (for a period of six (6) months from date of that
Termination) to use the services provided by Qorus to
customers who had signed up to those services prior to the
date of Termination, unless the customer chooses to terminate
the services themselves.
2.7. No rights or licenses with respect to the Services or the
Trademarks (as defined below) are granted or deemed granted
hereunder or in connection herewith, other than those rights
expressly granted in this Agreement.
3. Additional Obligations of QORUS.
3.1. QORUS shall, at its own expense, provide and install within
ALPHA's premises a proprietary suite of equipment necessary to
provide local remote access communications (the "Equipment")
as detailed in Exhibit C. Such equipment will be the sole
property of QORUS and QORUS will be solely responsible for its
upkeep and maintenance.
3.2. QORUS shall provide ALPHA with a copy of the Documentation
within a timely period after execution of this Agreement, and
shall thereafter provide ALPHA on a timely basis any updates
or revisions thereto, for re-branding, reproduction and
distribution by ALPHA to ALPHA Customers in accordance with
this Agreement and in connection with the marketing and sale
of the Services. ALPHA shall maintain all copyright notices of
QORUS on the documentation.
3.3. QORUS shall provide ALPHA and ALPHA Authorized Resellers with
training as set forth in the Operating Plan.
3.4. QORUS shall provide the maintenance and support services for
ALPHA and ALPHA Customers, as set forth in the Operating Plan,
at no additional cost to ALPHA.
3.5. QORUS shall notify ALPHA at least 60 days in advance of new
products and services not described on Exhibit A and material
enhancements which substantially alter the functionality of
the Services and are available from QORUS after the Effective
Date (collectively, "New Services"). If QORUS and ALPHA agree
that any such New Services will be offered to ALPHA Customers,
such New Services will be added to Exhibit A.
4. Obligations of ALPHA.
4.1. ALPHA shall use diligent commercial efforts to market and sell
the Services to ALPHA Customers. ALPHA shall develop at its
own expense, all marketing, sales, and promotional materials
used in connection with ALPHA's marketing and sale of the
Services.
4.2. ALPHA shall accurately represent the Services to ALPHA
Customers or prospective ALPHA Customers and prospective ALPHA
Authorized Resellers and shall make no claims,
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representations or warranties on behalf of QORUS in connection
with the Services other than as set forth in QORUS's
Documentation, the forms or orders provided by QORUS, or as
otherwise expressly authorized by QORUS in writing.
4.3. ALPHA shall provide adequate, secure space with appropriate
cabling and electrical wiring to house the Equipment as
outlined in Exhibit C. ALPHA shall grant, subject to normal
landlord regulations, to QORUS unrestricted and immediate
access to the Equipment during normal business hours. ALPHA
shall make available a qualified telecom technician to be
trained as provided for in the Operating Plan and to be
available for on-site repair of Equipment at QORUS' request.
ALPHA also agrees to provide to QORUS access to the equipment
during times other than normal business hours upon 6 hours'
notice during the term of this agreement and immediately after
any termination in order to permit QORUS to remove the
Equipment.
4.4. ALPHA shall provide the maintenance and support services for
ALPHA and ALPHA Customers, as set forth in the Operating Plan.
5. Customer Registration and Payment.
5.1. ALPHA Customers shall register for the Services as described
in Exhibit B.
5.2. QORUS's description of Services and Pricing to ALPHA is set
forth in Exhibit A, provided however that pricing to ALPHA
Customers shall be determined by ALPHA in its sole discretion.
QORUS may, decrease, where market conditions dictate, or
increase as market conditions allow, the pricing of Services
to ALPHA at any time upon written mutual agreement.
5.3. QORUS shall be responsible for providing a single,
standardized monthly electronic billing feed to ALPHA, on or
about the 5th of every month, which includes all service usage
and billing information, by ALPHA Customer, for the previous
month. Payment terms will be Net 30 days. Such payments will
be made by ALPHA to QORUS regardless of ALPHA's ability to
collect its charges from ALPHA Customers.
5.4. ALPHA, or its ALPHA Authorized Reseller, shall be responsible
for and pay all taxes applicable to amounts billed to ALPHA
Customers under this Agreement (excluding taxes based on
QORUS's income, net worth or capital).
5.5. All amounts due and owing to QORUS hereunder but not paid by
ALPHA on the due date thereof shall bear interest at the rate
of the lesser of: (i) one and one-half per cent (1 1/2%) per
month; and (ii) the maximum lawful interest rate permitted
under applicable law. Such interest shall accrue on the
balance of unpaid amounts from time to time outstanding from
the date on which portions of such amounts become due and
owing until payment thereof in full.
6. Term and Termination.
6.1. The initial term of this Agreement shall commence as of the
Effective Date and will continue for a period of three (3)
years (the "Initial Term"). At the conclusion of the Initial
Term and any subsequent term, this Agreement shall
automatically be extended for an additional one (1) year term
unless either Party provides the other Party with written
notice of its intention not to renew this Agreement at least
six (6) months prior to the expiration of the then current
term. The
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Agreement shall automatically be renewed for an additional one
(1) year term on the same basis as above, on an ongoing basis
until one party elects not to renew it.
6.2. This Agreement may also be terminated as follows:
a. At any time upon the mutual written agreement of the
Parties; or
b. By either Party immediately if the other Party fails
to cure any material breach within thirty days
following receipt of written notice thereof; or
c. By either Party immediately upon giving written
notice to the other Party if the other Party has a
receiver, administrator, administrative receiver or
liquidator appointed; if the other Party passes a
resolution liquidating the Party, if any court of
competent jurisdiction issues an order to that
effect, or if the other Party enters into any
arrangement with its creditors, becomes insolvent or
ceases to carry on business;
6.3. Upon termination or expiration of this Agreement, the Parties
agree to cooperate in good faith to effect an orderly wind-up
of the relationship created under this Agreement. QORUS shall
complete all orders, which it has accepted and ALPHA shall
remain obligated to pay all amounts owing to QORUS hereunder.
Termination of this Agreement shall not limit either party
from pursuing any other remedies otherwise available to it.
6.4. In the event of a termination of this Agreement pursuant to
its terms or upon expiration of this Agreement, QORUS shall
not have any obligation to ALPHA, or to any employee of ALPHA
or ALPHA Authorized Reseller, for compensation or for damages
of any kind, whether on account of the loss by ALPHA or such
employee or ALPHA Authorized Reseller of present or
prospective sales, investments, compensation or goodwill.
ALPHA hereby indemnifies and holds QORUS harmless from and
against any and all claims, costs, damages and liabilities
whatsoever asserted by any employee, agent or representative
of ALPHA or a ALPHA Authorized Reseller under any applicable
termination, labor, social security or other similar laws or
regulations.
6.5 It is expressly agreed and understood that in the event of
Termination of the agreement, QORUS may not in any way contact
Alpha Customers, except in the course of general advertising
programs unless given written confirmation, signed by two
Alpha directors, that they may do so.
7. Confidentiality.
7.1. The Parties agree that the following provisions shall govern
the anticipated mutual disclosure and use of confidential and
proprietary information under this Agreement.
a. as used in this Agreement, the term "Proprietary
Information" shall mean information that is
transmitted or otherwise provided by or on behalf of
either Party to the other Party related to this
Agreement and the services to be performed hereunder,
and that may be reasonably understood from legends,
the circumstances of disclosure or the nature or the
information itself, to be proprietary and/or
confidential to the disclosing party. Proprietary
Information may be disclosed in written or other
tangible form
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(including on magnetic media) or by oral, visual or
other means. Proprietary Information shall include,
without limitation, a Party's business plan, customer
names and information relating to the customers,
information regarding other material third party
relationships which a Party may obtain in the course
of performance under this Agreement, and scientific
or technical data, design or process. Notwithstanding
the foregoing, Proprietary Information shall not
include any information that:
(i) was publicly known at the time of
discloser's communication thereof to
recipient;
(ii) becomes publicly known through no fault of
recipient subsequent to the time of
discloser's communication thereof to
recipient;
(iii) was in recipient's possession free of any
obligation of confidence at the time of
discloser's communication thereof to
recipient;
(iv) is developed by recipient independently of
and without reference to any of discloser's
Proprietary Information or other information
that discloser disclosed in confidence to
any third party;
(v) is rightfully obtained by recipient from
third parties which made such disclosure
without restriction; or
(vi) is identified in writing by discloser as no
longer proprietary or confidential.
7.2. In the event recipient is required by law, regulation or court
order to disclose any of discloser's Proprietary Information,
recipient will, where reasonably possible, promptly notify
discloser in writing prior to making any such disclosure in
order to facilitate discloser seeking a protective order or
other appropriate remedy from the proper authority. Recipient
agrees to cooperate with discloser in seeking such order or
other remedy. Recipient further agrees that if discloser is
not successful in precluding the requesting legal body from
requiring the disclosure of the Proprietary Information, it
will furnish only that portion of the Proprietary Information
which is legally required and will exercise all reasonable
efforts to obtain reliable assurances that confidential
treatment will be accorded the Proprietary Information.
7.3. The Parties acknowledge that their respective Proprietary
Information, as well as their respective intellectual property
rights pursuant to this Agreement, are unique and valuable,
and that breach by either Party of the obligations of this
Agreement regarding such Proprietary Information and
intellectual property rights will result in irreparable injury
to the affected Party for which monetary damages alone would
not be an adequate remedy. Therefore, the Parties agree that
in the event of a breach or threatened breach of such
provisions, the affected Party shall be entitled to specific
performance and injunctive or other equitable relief as a
remedy for any such beach or anticipated breach without the
necessity of posting a bond. Any such relief shall be in
addition to and not in lieu of any appropriate relief in the
way of monetary damages.
7.4. Each Party receiving Proprietary Information shall, as to any
Proprietary Information that may be disclosed to it by the
other Party hereunder: (i) use the Proprietary Information
only in the performance of this Agreement and (ii) protect
such Proprietary Information from disclosure to others, using
the same degree of care used to protect its own confidential
or proprietary
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information of like importance, but in any case using no less
than a reasonable degree of care. Recipient may disclose
Proprietary Information received hereunder to its Affiliates
and its employees and subcontractors, who have a need to know,
for the purpose of this Agreement, and who are bound to
protect the received Proprietary Information from unauthorized
use and disclosure provided that in any event recipient shall
remain liable for breaches by any such third parties of the
provisions of this Section. Proprietary Information shall not
otherwise be disclosed to any third party without the prior
written consent of the discloser.
8. Compliance with Regulations.
QORUS shall comply, in all material respects, with all applicable
statutes, laws, regulations, tariffs and orders adopted or issued by
any governmental authority governing the provisioning of the Services
by QORUS to ALPHA Customers including, but not limited to, all relevant
export and re-export controls under the U.S. Export Administration
Regulations and/or similar regulations of the U.S. or any other
country. ALPHA shall cooperate with QORUS as reasonably necessary to
permit QORUS to comply with such laws and administrative regulations.
9. Representations and Warranties.
9.1. QORUS represents and warrants to ALPHA (and no other person or
entity) that:
a. the Services will perform substantially as described
in the Documentation. ALPHA's exclusive remedy for
breach of this warranty is QORUS re-performing the
Services for no additional charge;
b. it has not incorporated in the Services, and, to
QORUS's knowledge, the Services do not contain any
"time bomb", "worms", viruses, locks, drop dead
devices or other routines or components to permit
unauthorized access, disable the software or data,
harm the system on which the software is run or
performance and other actions which would impair the
value or operation of the Services;
c. to QORUS's knowledge, the Services do not infringe
upon or violate any patent, copyright, trademark, or
other intellectual property or proprietary right of
any third party and do not constitute a
misappropriation of trade secrets of any third party.
9.2. Year 2000 Compliance. QORUS warrants that QORUS's provision of
Licensed Product to ALPHA, and any related deliverables
provided to ALPHA under this Agreement, will not be adversely
affected by the occurrence or use of dates before, on, or
after January 1, 2000 A.D., including dates and leap years
between the twentieth and twenty-first centuries ("Millennial
Dates"). Any deliverables (including any software, hardware or
firmware product(s) delivered by QORUS to ALPHA) will without
error or omission, create, receive, store, process and output
(collectively, "Compute") information related to Millennial
Dates. This warranty includes, without limitation, that the
deliverables will accurately, and without performance
degradation, compute Millennial Dates, date-dependent data,
date-related interfaces, or other date-related functions
(including, without limitation, calculating, comparing, and
sequencing such functions). At ALPHA's request, QORUS will
provide written evidence sufficient to demonstrate adequate
testing and conversion of the deliverable to meet the
foregoing requirements. In all cases, the parties agree that
Year 2000 compliance of Services will be dependent upon Year
2000
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compliance of ALPHA Customers' email systems and other
software and hardware.
10. Disclaimer on Warranties; Limitation of Liability.
10.1. EXCEPT AS SPECIFICALLY MADE IN THIS AGREEMENT, QORUS MAKES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY
WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AS TO THE PRODUCTS AND
SERVICES PROVIDED UNDER THIS AGREEMENT.
10.2. EXCEPT AS IS PROVIDED IN ARTICLE 11 BELOW, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY, OR ANY AFFILIATE THEREOF BE
LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, STATUTORY OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS OR
OTHER LOST ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR BREACH HEREOF, WHETHER SUCH CLAIMS ARE BASED
ON BREACH OF CONTRACT, STRICT LIABILITY, TORT, OR ANY OTHER
LEGAL THEORY AND EVEN IF THE OTHER PARTY KNEW, SHOULD HAVE
KNOWN, OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PARTIES HAVE AGREED THAT THE LIMITATION SPECIFIED IN THIS
SECTION WILL SURVIVE AND APPLY IF ANY LIMITED REMEDY SPECIFIED
IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE.
10.3. Limited Damages. IN NO EVENT (EXCEPT AS IS PROVIDED IN ARTICLE
11 BELOW) SHALL QORUS's LIABILITY TO ALPHA IN CONNECTION WITH
THIS AGREEMENT EXCEED AMOUNTS PAID TO QORUS BY ALPHA UNDER
THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION ANY
ACTION FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE,
STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
11. Indemnification
11.1. Each Party agrees to indemnify the other and its directors,
officers, agents and employees harmless from and against any
and all losses, liabilities, judgements, damages, costs and
expense, including reasonable attorneys' fees and court costs,
resulting from or arising out of any charges, claims, suits,
actions, causes of action, of any kind and description,
brought by any third party as a result of or in connection
with a breach of or default by a Party of any provision of, or
representations or warranties set forth in this Agreement,
except to the extent any of the foregoing is caused by the
negligence or willful misconduct of the other Party.
QORUS agrees to indemnify ALPHA, its directors, officers,
agents and employees harmless from and against any and all
losses, liabilities, judgments, damages, costs and expense,
including reasonable attorneys' fees and court costs,
resulting from or arising out of any charges, claims, suits,
actions, causes of action, of any kind and description,
brought by any third party as a result of or in connection
with any claim that the use or sale of the Services by ALPHA
or any ALPHA Customer infringes on the intellectual property
rights of any third party or constitutes a misappropriation of
a trade secret of any third party; provided, however, that:
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(a) In the event that any Service is held in a suit or
proceeding to infringe any intellectual property rights of a
third party and the use or reselling of such Service is
enjoined, or QORUS reasonably believes that it is likely to be
found to infringe or likely to be enjoined, then QORUS shall,
at its sole cost and expense, either (i) procure for ALPHA the
right to continue using and reselling such Service, or (ii)
modify such Service so that it becomes non-infringing.
(b) QORUS shall have no obligation for any claim of
infringement arising from: (i) any combination of Services
with products or services not supplied or approved in writing
by QORUS, where such infringement would not have occurred but
for such combination; (ii) the adaptation or modification of
Services not performed by QORUS, where such infringement would
not have occurred but for such adaptation or modification;
(iii) the use of Services in an application for which it was
not designed or intended, where such infringement would not
have occurred but for such use; or (iv) a claim based on
intellectual property rights claimed by ALPHA or any of its
Affiliates.
(c) This Section 11.1 states ALPHA's sole and exclusive remedy
in the event that a Service infringes on the intellectual
property right of any third party.
11.2. In the event a claim which is covered by the terms of this
Section is made by a third party against either ALPHA or
QORUS, the party receiving the claim and entitled to
indemnification hereunder (the "Indemnified Party") shall
promptly notify the other party (the "Indemnifying Party") of
the claim and the indemnification obligation arising
thereunder. The Indemnifying Party shall be accorded control
of the defense and of all negotiations for settlement or
compromise of such claim and the Indemnified Party shall
cooperate with the Indemnifying Party in the defense and
settlement of such claim. The Indemnified Party may at its own
expense, be represented in such defense. The Indemnifying
Party shall promptly adjust, settle for defend or otherwise
dispose of the claim at its sole cost and expense. The
Indemnifying Party may not agree to any settlement, which
imposes liability on the Indemnified Party without the prior
written consent of the Indemnified Party.
11.3 In the event a claim is based partially on an indemnified
claim described in Section 11.1 above and partially on a
non-indemnified claim, or is based partially on a claim
indemnified by QORUS pursuant to Section 11.1 above and
partially on a claim indemnified by ALPHA pursuant to Section
11.1 above, any payments and reasonable attorney fees incurred
in connection with such claims are to be apportioned between
the Parties in accordance with the degree of cause
attributable to each Party.
12. Arbitration Clause.
Any dispute or disagreement arising between the Parties in connection
with this Agreement, which is not settled to the mutual satisfaction of
the Parties within thirty (30) days (or such longer period as may be
mutually agreed upon in writing) from the date that either Party
informs the other in writing that such dispute or disagreement exists,
shall be settled by arbitration in London, United Kingdom, in
accordance
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with The Arbitration Xxx 0000. The cost of the arbitration, including
the fees and expenses of the arbitrator(s) and legal counsel, will be
shared equally by the parties unless the award otherwise provides. Each
Party will be responsible for its own legal fees; provided, however,
that the prevailing party in any arbitration proceeding shall be
entitled to reimbursement of its legal fees and costs by the
non-prevailing party.
13. Publicity.
No news, media or other informational releases public announcements,
public disclosures, advertising or marketing materials concerning or
referencing any part of the terms and conditions of this Agreement,
including exhibits hereto, either Party's performance hereunder, or any
other aspect of the Agreement shall be made or distributed without the
express prior written approval of the other Party.
14. Force Majeure.
Neither Party will be liable for any failure to perform (other than
payment obligations) due to unforeseen circumstances or causes beyond
its reasonable control, including, but not limited to, acts of God,
war, riot, embargoes, acts or civil or military authorities, fire,
flood, accident, shortages of fuel, raw materials or equipment,
provided that the delayed Party has taken reasonable measure to notify
the other in writing of the delay.
15. Miscellaneous.
15.1. Non Waiver. The failure of either Party to insist upon the
strict performance of any terms, covenants and conditions of
this Agreement at any time, or in any one or more instances,
or its failure to take advantage of any of its rights
hereunder, or any course of conduct or dealing, shall not be
construed as a waiver or relinquishment of any such rights or
conditions at any future time and shall in no way affect the
continuance in full force and effect of all the provisions of
this Agreement.
15.2. Relationship of Parties/Independent Contractors. Nothing
contained in this Agreement shall be deemed or construed as
creating a joint venture or partnership between QORUS and
ALPHA. Neither Party is by virtue of this Agreement authorized
as an agent, employee or legal representative of the other.
Neither Party shall have the power to control the activities
and operations of the other and their status is, and at all
times will continue to be, that of independent contractors.
Neither Party shall have any authority to bind or commit the
other. Except as expressly agreed in writing each Party shall
bear its own costs and expenses incurred under or in
conjunction with performance of this Agreement.
15.3. Headings. Headings used in this Agreement are for convenience
and reference only and shall not be construed as altering the
meaning of this Agreement or any of its parts.
15.4. Applicable Law. This Agreement shall be interpreted construed
and governed in accordance with the laws of England, without
regard to its conflict of law provisions.
15.5. Survival. The Parties agree that Section 6.3, 6.4, and
Articles 7, 10, 11, 12, 13, 14 and 15 shall survive the
expiration or any earlier termination of this Agreement.
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15.6. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, the remaining terms shall
not be affected. The Agreement shall be interpreted as if the
illegal, invalid or unenforceable provision had not been
included in it, and the invalid or unenforceable provision
shall be replaced by a mutually acceptable provision which,
being valid and enforceable, comes closes to the intention of
the Parties underlying the invalid or unenforceable provision.
15.7. Notices. All notices, request, demands, or communications
required or permitted hereunder shall be in writing, delivered
personally, by registered mail with return receipt, by
overnight delivery service, by electronic mail (with confirmed
receipt), or facsimile (with confirmed receipt), at the
respective addresses set forth below (or at such other
addresses as shall be given in writing by either Party to the
other). All notices, requests, demands or communications shall
be deemed effective upon receipt for personal delivery, on the
business day following the date of sending by electronic mail,
facsimile or overnight delivery service, or three days after
mailing.
QORUS: Chief Financial Officer
XXXXX.XXX
0000 Xxxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Fax (000) 000 0000
ALPHA: Managing Director
ALPHA Telecom (UK) Ltd.
Xxxxxxxx Xxxxx, Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx
15.8. Assignment. This Agreement shall be binding on and inure to
the benefit of the Parties hereto and their respective
successors and assigns. Neither Party may assign this
Agreement without the prior express written consent of the
other Party, which consent shall not be unreasonably withheld
or delayed; provided, however, either Party, without the
consent of the other, assign its rights and obligations
hereunder to an Affiliate, or to a successor in interest or to
a purchaser of all or substantially all of its assets or of
the assets of that portion of its business as to which this
Agreement pertains. Any prohibited assignment shall be null
and void.
15.9. Entire Agreement. This Agreement, including Exhibit A and
Exhibit B hereto constitutes the entire understanding of the
Parties, and supersedes all prior or contemporaneous written
and oral agreements, representations or negotiations with
respect to the subject matter hereof. This Agreement may not
be modified or amended except in writing signed by both
Parties.
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15.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
ALPHA TELECOM (UK) LTD. XXXXX.XXX
Signature Signature
Name Name
Date Date
Title Title
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EXHIBIT A
SERVICES AND PRICING
SERVICE DESCRIPTION
o GENERAL:
- 10MB allocated disk space for message storage
- Personal email address
- Personal phone number for voice mail access
o FAX CAPABILITIES:
- Fax to any fax number at local call charges
- Receive notice of incoming fax via QORUS telephone access
- Send or forward fax to any fax number from telephone or
browser interface
- View faxes similarly to viewing e-mail
- Broadcast fax capabilities
- Fax to e-mail addresses
o E-MAIL CAPABILITIES:
- Send to and receive from all standard e-mail systems
- Send to multiple e-mail addresses
- Attach multiple files to e-mail messages
- Send to any combination of e-mail, faxes, pagers, voice mail
- Listen to e-mail on telephone in same fashion as listening to
voice mail
- Use QORUS features with existing e-mail clients
- Send to any fax number
- Send to multiple fax numbers
- Notification of e-mail arrival via voice mail
- Send to multiple pagers
o VOICE MAIL CAPABILITIES:
- Leave voice mail in QORUS via telephone access
- Retrieve voice mail from QORUS telephone access
- Retrieve voice mail from computer with voice medium
- Notification by fax if a voice mail is received
- Send, reply, or forward voice mail to e-mail using the
telephone interface
- Notification by page if a voice mail is received
o PAGING CAPABILITIES
- Page from telephone interface with address book option
- Send pages from browser interface with address book option
- Supports multiple paging providers: numeric, alphanumeric and
page enabled cellular phones
o OTHER SERVICES
- Remote access to mailbox using the Internet or touch-tone
phone
- Platform/operating system independent
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- Full service e-mail/phone/fax/pager address book accessible
from both the Internet and the telephone interfaces
- Full scheduling features which allow user to create a unique
set of instructions for QORUS to handle, forward or hold
incoming and outgoing messages
- Message transmission events can be pre-set based on any
combination of:
- Type of message(e-mail, fax, voice, page)
- Start and end date and/or start and end time
- Day of week
- Filter an incoming message
- Address message to any type or individual
PRICING
QORUS will be paid as per Sections 5.2 and 5.3 of the Agreement an amount equal
to 50% of the prices charged by Alpha to its customers provided that Qorus shall
not receive less than 50% of the amount agreed to per user per month.
Alpha and Qorus will agree, in writing, to any price changes.
The agreed monthly charge shall be (pound)9.95/month and may only be changed by
the written consent of both parties. Upon any such change, the revenue sharing
arrangement shall continue to be 50% of the amount agreed to per user per month.
Qorus further agrees that this consent will not be unreasonably withheld and
that Qorus will support Alpha's efforts to maintain the most competitive pricing
within its market.
ADDITIONAL PRICING:
Pricing for additional features such as additional allocated disk space in 5MB
increments beyond 10MB, Teleco charges for fax and pages outside of area, and
other features tbd, will be determined by mutual agreement between the Parties
and revenues will be shared 50%/50 % between the Parties.
ALPHA TELECOM SERVICES TO QORUS
Termination services will be purchased by Qorus at the RACS installation site in
UK from Alpha Telecom and may include outbound faxes and pages for any Qorus
customer. Further discussion and finalization of this arrangement is required.
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EXHIBIT B
OPERATING PLAN
MARKETING AND SALES
Alpha will make best efforts to identify target customers, create appropriate
collateral, advertising and other specific sales efforts to secure commitments
from some portion of those customers to buy Qorus services. Such activities will
be directed toward prospective market segments which are known to have clear
need for Qorus services. Any card-based activities must be at Alpha's own
expense.
Qorus will help Alpha secure customers through any or all of the following
means:
- Supply existing marketing materials to Alpha for distribution or
original work for incorporation into Alpha-developed materials.
- Periodic visits to Alpha and Alpha prospective customers by Qorus
personnel to assist with presentation and explanation of Qorus
services.
- Start-up discount on Qorus services as proposed in Exhibit A Pricing
- Promotional programs as warranted (further discussion required)
ACCOUNT CREATION/CLOSURE
Alpha customers will sign-up directly through the Alpha-branded registration
web-page. The customer may supply a pre-assigned reference number identifying
them as an Alpha customer and the appropriate account configuration.
The customer will be assigned appropriate telephone access numbers and email id.
The account will be available for immediate usage.
Upon creation, a notice will be sent to the appropriate Alpha representative
advising of the account creation.
Customers may discontinue services at any time via web or telephone access.
Alpha will be notified by email upon account closure of such activity.
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BILLING
Qorus will xxxx Alpha at the end of each month the flat rate for all accounts
active at the end of the month and for associated additional charges (telco,
additional storage, etc.)
CUSTOMER SUPPORT
Alpha will supply the first and second line of support to its users on a 24 x 7
basis. This includes telephone and email based questions and problems. Training
for this support will be provided by Qorus as outlined below.
Qorus will provide third tier support.
TRAINING
A. Qorus will provide at its location in Southern California technical support
training designed to familiarize a qualified Alpha telcom technician with
the operation capabilities of the Equipment, to enable the technician to
install the Equipment in the UK and to provide ongoing rebooting services
as directed by Qorus. Estimated length of this training - 1 day.
B. Qorus will provide customer service/technical support training to an Alpha
service support technician at the Southern California location in order for
Alpha to be able to provide first and second tier support to Alpha
Customers, and to document escalation procedures.
MAINTENANCE
The costs associated with maintenance of the Equipment will be borne by Qorus.
Systems management to monitor availability of systems and applications will be
provided remotely.
SERVICE ENHANCEMENTS
Qorus will, from time to time, add features to the services. These additional
features will be made available to Alpha and its customers as well. If Qorus
adds significant functionality which results in a retail price list change,
Alpha will be given the option to revise pricing to reflect such new services.
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EXHIBIT C
EQUIPMENT:
QORUS will provide and cause to be installed a Remote Access Communications
System ("RACS") at a mutually agreeable secure location within ALPHA's premises.
QORUS will retain title to, provide risk of loss insurance, and be solely
responsible for maintenance of the equipment.
QORUS/ALPHA CO-LOCATION SPECIFICATION:
ALPHA Provisioning:
Access Requirements:
o Internet connection with a minimum bandwidth of 3 mbs. Minimum 1.5 mbs
for each RACS.
o Minimum of 8 internet addresses.
o Required circuits for RACS:
o 4 (Four) E1's
o 30 digital channels each E1
o E1 Line Type - Framing Formats - CRC-4 Multiframing
o Line Coding - HDB3
o Clock Source - MVIP bus master clock signals
o Line Impedance - 120 ohm terminations
o 1000 DID numbers both trunks.
o DID rollover from trunk A to C; B to D.
o Services: DNIS, DID, CallerID, (ANI).
Space Requirements:
o One 19 inch rack containing:
o 1 Cisco PIX Firewall
o 1 Cisco 2900 100base T Switch
o 2 RACS
Service Requirements:
o 24/7 Reboot Support
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