COGNIGEN - EMAXDIRECT
TRAINING SERVICES FRAMEWORK AGREEMENT
This Training Services Framework Agreement ("Agreement") is made
between Cognigen Networks, Inc. ("Cognigen"), a Colorado corporation with its
principal place of business at 0000 Xxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000, and eMaxDirect LLC ("eMaxDirect"), a Nevada limited
liability company with its principal place of business at 0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, XX 00000. Cognigen and eMaxDirect ("the parties") agree
as follows:
1. DEFINITIONS
(a) "Proprietary Marks" shall mean the xxxx "Cognigen," trade names,
service marks, and logos.
(b) "Proprietary Information" shall mean all confidential and proprietary
information of Cognigen, including but not limited to lists of Cognigen's
Independent Representatives and all identification thereof, including but not
limited to names, "dba" names, addresses, email addresses, and phone numbers;
Cognigen's Power Plan with its organizational structure and its vertical and
horizontal levels of compensation; Cognigen's list of Qualified
Representatives; and information about or contracts with Cognigen's providers
or vendors.
(c) "Licensed Materials" shall mean the materials licensed by Cognigen for
use by eMaxDirect hereunder as more fully described in Schedule A, which is
attached to and incorporated by reference in this Agreement.
(d) "eMaxDirect Work Product" means (collectively and individually)
technical information, training materials and aids and sales training tools,
that are developed, conceived, or acquired by eMaxDirect or by eMaxDirect's
authorized subcontractors or agents during the Term of this Agreement, and in
connection with the Services, including any derivative works. EMaxDirect
Work Product includes work that can be copyrighted but does not include
ideas, discoveries, or concepts.
(e) "Cognigen Work Product" means (collectively and individually) technical
information, training materials and aids and sales training tools, that have
been, heretofore, or are developed, conceived, or acquired by Cognigen or by
Cognigen's employees, officers, directors, authorized subcontractors or
agents during the Term of this Agreement, and in connection with the
Services, including any derivative works. Cognigen Work Product includes
work that can be copyrighted but does not include ideas, discoveries, or
concepts.
(f) "Joint Work Product" means (collectively and individually)
technical information, training materials and aids and sales training tools,
that are developed, conceived, or acquired jointly by Cognigen and eMaxDirect
or by Cognigen and eMaxDirect's authorized subcontractors or agents during
the Term of this Agreement, and in connection with the Services, including
any derivative works. Joint Work Product includes work that can be
copyrighted but does not include ideas, discoveries, or concepts.
2. SERVICES
eMaxDirect agrees to perform for Cognigen the services ("Services")
described in Schedule B, which is attached to and incorporated by reference
in this Agreement.
3. LICENSE
(a) Subject to the terms of this Agreement, Cognigen hereby grants
eMaxDirect an exclusive, personal, non-transferable, non-assignable limited
license to use the Proprietary Marks, Licensed Materials, and the Proprietary
Information for the sole purpose of training Cognigen Independent Sales
Agents during the Term. Cognigen reserves the right to utilize the
Proprietary Marks, Licensed Materials and Proprietary Information to conduct
its own training of Independent Sales Agents and for any other purpose at
Cognigen's sole discretion.
(b) Subject to the terms of this Agreement, Cognigen hereby grants
eMaxDirect a non-exclusive, personal, non-transferable, non-assignable
limited license to use the Cognigen Work Product for the sole purpose of
training Cognigen Independent Sales Agents. Cognigen reserves the right to
utilize the Cognigen Work Product for any purposes including the licensing of
third parties. This paragraph shall survive termination of this Agreement.
(c) Subject to the terms of this Agreement, eMaxDirect hereby grants
Cognigen a non-exclusive, personal, non-transferable, non-assignable limited
license to use the eMaxDirect Work Product for the sole purpose of training
Cognigen Independent Sales Agents. eMaxDirect reserves the right to utilize
the eMaxDirect Work Product for any purposes including the licensing of third
parties. This paragraph shall survive termination of this Agreement.
(d) Subject to the terms of this Agreement, Cognigen and eMaxDirect
hereby grant each other a non-exclusive, personal, non-transferable,
non-assignable limited license to use the Joint Work Product for the sole
purpose of training Cognigen Independent Sales Agents. This paragraph shall
survive termination of this Agreement.
4. USE OF LICENSED MATERIALS
Subject to Section 3 above, eMaxDirect shall have the right to use the
Proprietary Marks and Licensed Materials solely in connection with
eMaxDirect's training of Cognigen's Independent Sales Agents, only with
Cognigen's prior written approval of the training programs and materials, and
in strict compliance with the policies, instructions and guidelines of
Cognigen.
(a) eMaxDirect acknowledges Cognigen's exclusive right, title and interest
in and to the Proprietary Marks and the Licensed Materials and eMaxDirect
shall xxxx the Licensed Materials and any advertising or promotional material
utilizing or reproducing any Proprietary Marks or Licensed Materials in such
manner as to preserve and protect all rights of Cognigen therein. Nothing
contained in this Agreement shall be construed as conveying to eMaxDirect any
right, title or interest in or to any of the Proprietary Marks or Licensed
Materials other than an express right to a permissive use thereof in
connection with eMaxDirect's training of Cognigen's Independent Sales Agents.
(b) Cognigen and eMaxDirect each agree that eMaxDirect will not do any act
which it knows, or it is notified by Cognigen, may affect the validity of any
of the Proprietary Marks or the Licensed Materials.
(c) eMaxDirect shall not alter, obliterate, obscure or remove any copyright
notice or other designation of Cognigen's intellectual property rights
regarding the Proprietary Marks or Licensed Materials, and shall reproduce
such notices and designation on any media or product that uses the
Proprietary Marks or Licensed Materials.
(d) All advertising, promotional material, training materials, or any other
item or product utilizing the Proprietary Marks or Licensed Materials which
may be used by eMaxDirect utilizing or referencing the Proprietary Marks or
Licensed Materials herein shall be submitted by eMaxDirect to Cognigen for
Cognigen's approval or disapproval prior to any release or use thereof by
eMaxDirect. Cognigen's approval of same shall not be unreasonably withheld.
All advertising brochures and illustrations identifying Cognigen or the
Proprietary Marks, or the Licensed Materials, or direct quotations attributed
to Cognigen or its employees, shall likewise be subject to approval or
disapproval by Cognigen. Once approval has been obtained unless otherwise
notified, further approval of the same material need not be obtained for
future or repeat use, but all such material shall be consistent with the
maintenance of the excellent reputation of Cognigen. If Cognigen shall give
notice of disapproval of any such material or training materials, items or
products, eMaxDirect shall not use or distribute such items or materials
utilizing the Proprietary Marks or Licensed Materials.
(e) eMaxDirect shall cooperate to the fullest extent possible with Cognigen
in any actions that Cognigen, in its sole discretion, may consider necessary
to protect any of the Proprietary Marks or Licensed Materials. eMaxDirect
will fully cooperate with Cognigen in maintaining and defending the ownership
and validity of each of the Proprietary Marks or Licensed Materials against
infringement and claims of infringement. eMaxDirect will promptly notify
Cognigen of (i) any infringement or unauthorized use of any Proprietary Marks
or Licensed Materials by any third party of (ii) any assertion by any third
party that eMaxDirect's use of any Proprietary Marks or Licensed Materials
shall not be obligated to initiate or defend legal action with respect to any
Proprietary Marks or Licensed Materials, and eMaxDirect shall not initiate or
defend any such action itself without Cognigen's consent. The parties will
fully cooperate with and notify the other party in maintaining and defending
the ownership and validity of the Proprietary Marks or Licensed Materials
against infringement and claims of infringement by others, including but not
limited to Cognigen's past, present or future Independent Representatives or
third parties replicating or attempting to replicate any of said Proprietary
Marks or Licensed Materials of either party.
5. TERM
This Agreement is effective on April 24, 2002 (the "Effective Date")
and shall continue through April 23, 2005 unless otherwise extended or
terminated by the parties in accordance with the provisions of this Agreement
(the "Term").
6. PAYMENTS FOR SERVICES
eMaxDirect shall, subject to the terms and conditions of this Agreement
collect the stated fees in advance for its services directly from each
Cognigen Independent Sales Agent registering for sales training. Under no
circumstances shall Cognigen be liable for payment for any services rendered
by eMaxDirect. This paragraph does not relieve Cognigen of any obligations
it may have for the payment of commissions and bonuses to Cognigen agents.
7. ROYALTIES
In consideration of the grant by Cognigen to eMaxDirect of the
personal, exclusive, non-transferable, non-assignable limited license set
forth in Section 3, eMaxDirect shall pay Cognigen a royalty of 20% of the
gross revenues derived by eMaxDirect from its training services to Cognigen
Independent Sales Agents (the "Royalty" or "Royalties"). Revenues include
all sales of eMaxDirect's promotional and sales training tools, live training
seminars and business building materials, relating to Cognigen's services and
for Cognigen's entire independent agent network.
8. PAYMENT PROCEDURES
From the effective date of this Agreement, Royalty Payments are payable
to Cognigen at the close of each calendar month. Within thirty (30) days
after the close of each calendar month from the effective date of this
Agreement, eMaxDirect shall deliver to Cognigen a written or electronic
statement detailing all the revenues derived from the training of Cognigen
Independent Sales Agents by eMaxDirect on which Royalties are payable under
this Agreement for such calendar month. Each statement shall also contain
such other information as Cognigen may reasonably require. Concurrently with
the delivery of such statement covering each calendar month, eMaxDirect shall
pay in United States dollars to Cognigen at the address set forth elsewhere
in this Agreement all monies reported accrued and payable. eMaxDirect shall
keep at its principal place of business at all times, accurate and complete
records of its training activities in sufficient detail to enable Cognigen to
ascertain the Royalties accruing and due hereunder. eMaxDirect shall permit
Cognigen or its authorized audit agent to have access to said records and to
make such copies thereof as Cognigen may desire at reasonable intervals
during business hours.
9. PERFORMANCE WARRANTIES
eMaxDirect warrants that: (a) performance of the Services will not
violate any agreement or obligation between eMaxDirect and any third party;
and (b) the Services performed for or delivered to Cognigen will not infringe
on any copyright, patent, trade secret, or other proprietary rights of any
third party, known or unknown. Cognigen's remedy for a violation of the
warranty in this Section 9 shall be, in addition to termination of this
Agreement, for eMaxDirect to provide indemnification under Section 14
hereof. EXCEPT FOR THE WARRANTIES CONTAINED THIS SECTION 9, EMAXDIRECT MAKES
NO WARRANTIES, EXPRESS OR IMPLIED FOR DELIVERABLES OR SERVICES DEVELOPED OR
PROVIDED UNDER THE STATEMENT OF WORK OR OTHERWISE UNDER THIS AGREEMENT.
EMAXDIRECT SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SUCH DELIVERABLES AND
SERVICES.
10. WORK FOR HIRE
eMaxDirect and Cognigen agree and acknowledge that certain of the
Cognigen Work Product as more fully described in Schedule A is "work for
hire" and is the sole property of Cognigen, but that, eMaxDirect Work Product
is not "work made for hire," as that term is defined in Section 101 of Title
17 of the United States Code (the Copyright Act). Cognigen Work Product,
eMaxDirect Work Product and Joint Work Product are subject to the terms and
conditions of this Agreement and more specifically Sections 3(b), 3(c), and
3(d) of this Agreement.
If all or part of the Work Product is, for any reason, deemed not to be
a work made for hire, eMaxDirect agrees to execute all documents necessary to
transfer to Cognigen the ownership of any and all rights eMaxDirect may have
in the Work Product including but not limited to copyrights, trademarks or
patents. Each of the parties and its subcontractors and agents shall disclose
and furnish promptly to the other party any and all Joint Work Product,
Cognigen Work Product and eMaxDirect Work Product (jointly "Work Product")
arising in connection with the Services. Each of the parties shall keep the
Work Product in confidence, and shall use the Work Product only as
contemplated in this Agreement.
Each party shall assist and cooperate with the other party and execute
all appropriate documents necessary or convenient to perfect the other
party's rights in its own developed Work Product in order to ensure that such
party receives the rights provided for in this Section. This Section 10
shall survive termination of this Agreement.
11. OWNERSHIP, USE AND RETURN OF MATERIALS
eMaxDirect acknowledges that, in the course of performing the Services,
eMaxDirect will have access to and utilize Proprietary Information. All
information, records, documents, files, data, and other items relating to the
business of Cognigen or its customers, whether prepared by eMaxDirect or
otherwise coming into eMaxDirect's possession in connection with performing
the Services or otherwise during the term of this Agreement (including
Proprietary Information) shall remain the exclusive property of Cognigen, and
shall not be used by eMaxDirect other than in performing Services.
12. ASSIGNMENT AND SUBCONTRACTING
This Agreement shall be binding on the parties and each party's
successors and assigns. However, eMaxDirect may not assign or otherwise
transfer this Agreement or any rights, duties, or obligations under this
Agreement without the prior written consent of Cognigen. Cognigen may not
assign or otherwise transfer this Agreement or any rights, duties, or
obligations under this Agreement except to a corporate parent, subsidiary, or
affiliate of Cognigen. eMaxDirect shall not subcontract any portion of the
Services without prior written approval of Cognigen, which approval may be
withheld at Cognigen's sole discretion.
13. INDEMNIFICATION FOR TORT AND PROPERTY DAMAGE CLAIMS
Each party shall defend, indemnify, and hold harmless the other party
(including the successors, officers, directors, and employees of Cognigen)
from all third party claims to the extent arising from acts or omissions
which would amount to a breach of this Agreement. The indemnifying party
shall pay any final, unappealable judgment entered against the indemnified
party or agreed to in a settlement approved by the indemnifying party. The
indemnified party shall promptly notify the indemnifying party, in writing of
any such claim and shall reasonably cooperate with the indemnifying party in
the defense and settlement of the claim. This Section shall survive
termination of this Agreement.
14. INTELLECTUAL PROPERTY INDEMNITY
eMaxDirect agrees to indemnify, defend, and hold Cognigen (and its
successors, officers, directors, and employees) harmless from all third-party
claims which allege that the Services of eMaxDirect Work Product furnished by
eMaxDirect under this Agreement constitutes an infringement or
misappropriation of any confidential information, trade secret, patent,
copyright, trademark, trade name, or other legal intellectual property right
of any third party. As conditions of granting such indemnity, Cognigen shall
(i) promptly inform eMaxDirect of a claim of infringement, (ii) give
eMaxDirect the right to defend against and settle such claim, and (iii) at
eMaxDirect's sole expense, provide reasonable assistance to eMaxDirect in the
defense against such claim. This Section shall survive termination of this
Agreement.
15. LIMITATION OF LIABILITY
Except as provide herein, NEITHER PARTY SHALL BE LIABLE, UNDER ANY
CIRCUMSTANCES FOR ANY ANTICIPATORY OR LOST PROFIT, SPECIAL, CONSEQUENTIAL,
PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND RESULTING
FROM THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS UNDER THIS AGREEMENT
EVEN IF THOSE DAMAGES ARE ATTRIBUTED TO BREACH OF THIS AGREEMENT, TORT,
NEGLIGENCE, OR OTHER CAUSE OF ACTION. THE PARTIES AGREE THAT THIS LIMITATION
SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF NON-DIRECT
DAMAGES OR IF, UNDER APPLICABLE LAW, NON-DIRECT DAMAGES ARE CONSIDERED TO BE
DIRECT DAMAGES.
16. VIOLATION OF LAWS AND REGULATIONS
eMaxDirect acknowledges that certain local, state, and federal laws and
regulations apply to eMaxDirect as an independent contractor. eMaxDirect
agrees to comply with all applicable federal, state, and local laws.
Further, eMaxDirect agrees to defend, indemnify, and hold Cognigen harmless
(including Cognigen's affiliates, subsidiaries, agents, directors, officers,
and employees) against all claims, damages, losses, causes of action,
liabilities, and expenses of any kind or nature, including reasonable
attorney fees, which arise out of or relate to the failure of eMaxDirect to
comply with all applicable local, state, and federal laws and regulations in
the performance of eMaxDirect's obligations under this Agreement. This
Section shall survive termination of this Agreement.
17. RELATIONSHIP OF THE PARTIES
This Agreement shall not constitute, create, give effect to, or
otherwise imply a joint venture, partnership, or business organization of any
kind. Cognigen and eMaxDirect are independent parties, and neither party
shall act as an agent for or partner of the other for any purpose. Nothing
in this Agreement shall grant to either party any right to make any
commitments of any kind for or on behalf of the other without the prior
written consent of the other party. eMaxDirect is an independent contractor,
and it is the expressed intent of the parties that nothing in this Agreement
shall establish an employer-employee relationship between Cognigen and
eMaxDirect. To that end, eMaxDirect shall not act under the direct
supervision of any Cognigen employee and shall not supervise any Cognigen
employee(s). Except as provided for in Xxxxxxx 0, Xxxxxxxx shall not control
or determine the manner in which Services are performed or set hours of work
for eMaxDirect. eMaxDirect shall not be restricted from performing services
for others and shall not be bound to Cognigen except as provided under this
Agreement. eMaxDirect shall be solely responsible for payment of all taxes,
insurance, and other expenses of doing business.
It is hereby acknowledged that that one or more persons may be or may
become an officer or director of Cognigen and may serve in a similar capacity
with eMaxDirect or might have an equity interest in eMaxDirect. Inasmuch as
there exists this potential overlapping connection between Cognigen and
eMaxDirect, it does not and shall not constitute, create, give effect to, or
otherwise imply a joint venture, partnership, or business organization of any
kind by and between Cognigen and eMaxDirect. In no way and under no
circumstances shall any such person be permitted to exercise any authority or
execute any binding agreement, written or oral, on behalf of Cognigen that is
between Cognigen and eMaxDirect during the time in which such person is an
officer or director in both entities or has an equity interest in
eMaxDirect. Specifically, nothing in this Agreement shall grant to any such
person any right to make any commitments of any kind for or on behalf of
Cognigen to eMaxDirect so long as such person holds such capacity or interest
described herein. Any such purported activity by any such person shall be
invalid and not binding on Cognigen.
18. EMPLOYEES OF EMAXDIRECT
If eMaxDirect hires any employee(s) or engages any person(s) or firm(s)
to perform work for eMaxDirect in connection with the Services, eMaxDirect
shall be solely responsible for payment to those persons or firms, including
payment of any taxes related to employment and workers' compensation
insurance. eMaxDirect's employees are not eligible for any fringe benefits
(including health insurance, paid vacation, sick leave, or other employment
benefits) that may be provided to employees of Cognigen and will not be a
participant in any Cognigen qualified benefit plan. Neither party shall,
without the prior written consent of the other party, knowingly solicit,
recruit, hire, or otherwise employ or retain any employee of the other party
who is performing under this Agreement during the Term of this Agreement.
This restriction shall survive the termination or expiration of this
Agreement for a period of one (1) year. The provisions of this Section shall
not restrict in any way the right of either party to solicit or recruit
generally in the media, and shall not prohibit either party from hiring an
employee of the other who answers any advertisement or who otherwise
voluntarily applies for hire without having been personally solicited or
recruited by the hiring party.
19. TERMINATION
A. This Agreement may, at the option of Cognigen, be immediately
terminated upon the occurrence of any of the following events:
(a) failure by eMaxDirect to pay royalties or fees as and when due
hereunder;
(b) failure by eMaxDirect to follow the training specifications and
guidelines established jointly by the parties;
(c) unauthorized or unlawful use of any of the Proprietary Marks,
Proprietary Information, Licensed Materials or Work Product;
(d) unauthorized disclosure of Cognigen's Proprietary Information, Cognigen
Work Product or Licensed Materials by eMaxDirect, its subsidiaries,
affiliates, sub-contractors, or any of its officers, directors or employees;
(e) without the prior consent of Cognigen, sale by eMaxDirect of
substantially all of its assets or sale or other transfer of controlling
interest in the ownership of eMaxDirect;
(f) if eMaxDirect becomes or is declared insolvent or bankrupt; is the
subject of any proceedings related to its liquidation, insolvency, or for the
appointment of a receiver or similar officer for it; makes an assignment for
the benefit of all or substantially all of its creditors; or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations;
(g) if eMaxDirect fails to perform the Services required under this
Agreement and does not cure the failure within ten (10) calendar days (or
other reasonable period stated in the notice) of receipt of written notice
from Cognigen of the failure to perform, Cognigen may terminate this
Agreement for default; or
(h) if eMaxDirect materially breaches any of the terms and conditions set
forth in this Agreement.
B. This Agreement may, at the option of eMaxDirect, be immediately
terminated upon the occurrence of any of the following events:
(a) failure by Cognigen to provide all necessary agent information to
enable eMaxDirect to adequately provide training and coaching to interested
agents;
(b) unauthorized or unlawful use of eMaxDirect Work Product;
(c) if Cognigen becomes or is declared insolvent or bankrupt; is the
subject of any proceedings related to its liquidation, insolvency, or for the
appointment of a receiver or similar officer for it; makes an assignment for
the benefit of all or substantially all of its creditors; or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations;
(d) if Cognigen materially breaches any of the terms and conditions set
forth in this Agreement; or
(e) failure by Cognigen to compensate its Independent Agents with the
commissions derived from sales for the Services provided by eMaxDirect.
20. TERMINATION WITH NOTICE
Notwithstanding any other provision or requirement of this Agreement,
Cognigen may terminate this Agreement at any time without cause by giving
ninety (90) days prior written notice to eMaxDirect, and eMaxDirect may
terminate this Agreement at any time without cause by giving ninety (90) days
prior written notice to Cognigen.
21. EFFECT OF TERMINATION
(a) Upon termination or expiration of this Agreement for whatever reason,
eMaxDirect waives the applicability and protection of all laws, regardless of
jurisdiction, giving to eMaxDirect any rights of indemnity or other
compensation in lieu of notice or otherwise arising upon termination of this
Agreement or any other relationship between Cognigen and eMaxDirect.
Cognigen will not be required to indemnify or pay any amount to eMaxDirect,
whether as compensation, balancing, relief or otherwise, as a result of the
termination of this Agreement.
(b) Upon the expiration or termination of this Agreement for whatever
reason, eMaxDirect shall promptly return to Cognigen all Proprietary
Information and any other materials in eMaxDirect possession, including but
not limited to all copies made therefrom and shall not retain them thereafter.
(c) Upon the expiration or termination of this Agreement for whatever
reason, eMaxDirect will immediately cease all use of the Proprietary Marks
and Licensed Materials and deliver to Cognigen all the Licensed Materials.
eMaxDirect shall also take all action necessary to transfer and assign to
Cognigen or its nominee any right, title or interest to any of the Licensed
Materials which eMaxDirect may have acquired in any manner as a result of its
activities under this Agreement.
(d) Upon the expiration or termination of this Agreement for whatever
reason, eMaxDirect will immediately cease all contacts and communications,
directly or indirectly, with the Cognigen Independent Sales Agents or
Cognigen's agent organization. This shall not prevent the normal contact that
equity holders in eMaxDirect would have with the Cognigen Independent Sales
Agents in the downlines of the equity holders.
(e) Upon the expiration or termination of this Agreement for whatever
reason, eMaxDirect shall promptly pay all commission monies payable to
Cognigen, pursuant to Section 8. hereinabove, notwithstanding the fact that
eMaxDirect may not have collected all of the same.
(f) Notwithstanding any termination in accordance with the foregoing,
Cognigen shall have, and hereby reserves all the rights and remedies which it
has or which are granted to it by operation of law, for damages or breach of
this Agreement on the part of the eMaxDirect. This Section 21 survives the
termination of this Agreement.
22. NON CIRCUMVENTION
During the Term and for a period of one year, inclusive of any period
provided by notice of termination by either party, eMaxDirect and each and
every individual involved (currently or in the future) as an officer,
director or shareholder shall not circumvent Cognigen, directly or
indirectly, by negotiating with or entering into any agreement or alternative
arrangements with any of Cognigen's Independent Representatives, providers or
vendors. This Section shall survive termination of this Agreement.
23. NON COMPETITION COVENANT
(a) During the Term and for a period of one year,
inclusive of any period provided by notice of termination by either party,
after the termination of the Agreement (whether such termination is with or
without cause, or whether such termination is occasioned by the eMaxDirect or
Cognigen), eMaxDirect and each and every individual involved (currently or in
the future) as an officer, director or shareholder shall not, as provided by
applicable law, directly or indirectly or otherwise provide or sponsor
assistance to any third party who may attempt to or does circumvent or become
involved in competition (gratuitously or deriving revenue or other benefit
therefrom) within the telecommunication industry, including but not limited
to:
(i) engage in competition with Cognigen in any manner or capacity (e.g., as
an advisor, principal, agent, partner, officer, director, stockholder,
employee, member of any association or otherwise) in any phase of the
training of telecommunications industry sales agents;
(ii) assist or encourage any other person in carrying out, directly or
indirectly, any activity that would be prohibited by the above
provisions of this Section 23 if such activity were carried out by the
eMaxDirect, either directly or indirectly. In particular the
eMaxDirect agrees that he will not, directly or indirectly, induce any
employee of Cognigen to carry out, directly or indirectly, any such
activity; and
(iii) after termination of the Agreement, solicit any Cognigen Independent
Sales Agent to offer training services, other than in accordance the
provisions of any agreement the eMaxDirect equity holders might have
with Cognigen.
(b) Ownership by the eMaxDirect, as a passive investment, of less than 5%
of the outstanding shares of capital stock of any corporation listed on a
national securities exchange or publicly traded on Nasdaq shall not
constitute a breach of this Section 23.
(c) eMaxDirect agrees that the restrictions and agreements contained in
this Section 23 are reasonable and necessary to protect the legitimate
interests of Cognigen and that any violation of this Section 23 will cause
substantial and irreparable harm to Cognigen that would not be quantifiable
and for which no adequate remedy would exist at law and accordingly
injunctive relief shall be available for any violation of this Section 23.
(d) If the business activities covered by, this Section 23 are in excess of
what is valid and enforceable under applicable law, then such provision shall
be construed to cover only that duration, geographical extent or activities
that are valid and enforceable. eMaxDirect acknowledges the uncertainty of
the law in this respect and expressly stipulates that this Agreement be given
the construction which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable
law. This Section 23 survives the termination of this Agreement.
24. DISPUTE RESOLUTION
During and after the term or any extension of the term of this
Agreement, any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach thereof between the Cognigen and eMaxDirect
("Arbitral Claims") shall be settled by binding arbitration in Seattle,
Washington, USA, according to the Federal Arbitration Act, 9 U.S.C.ss.1, et
seq., inasmuch as this Agreement concerns transactions involving interstate
commerce and the corporation laws of the State of Colorado. Arbitral
Claims shall include, but are not limited to, contract (express or implied)
and tort claims of all kinds, as well as all claims based on any federal,
state, or local law, statute, or regulation. The parties hereby waive any
rights they may have to trial by jury in regard to arbitrable claims. This
clause shall not be construed to limit Cognigen from bringing any action for
injunctive or other provisional relief as Cognigen deems necessary or
appropriate to compel eMaxDirect to comply with its obligations hereunder or
to protect Cognigen's intellectual property rights in any court of competent
jurisdiction in the State of Washington and agree that in the event Cognigen
elects to bring an action for injunctive or other provisional relief in a
court of competent jurisdiction, such court(s) shall have exclusive
jurisdiction over any such action. Notwithstanding the foregoing and in its
sole discretion, Cognigen may seek and obtain such injunctive or other
provisional remedies to prevent an anticipatory, threatened or continued
breach of this Agreement, through the arbitration procedure stated herein.
Each of the parties hereby submits to the jurisdiction of the state and
federal courts in Seattle, Washington, for these purposes.
Pending the final disposition of a dispute other than a dispute arising
out of the termination of this Agreement by Cognigen, the parties shall, at
all times, proceed diligently with the performance of this Agreement.
The arbitrator(s) shall be selected as follows: The parties shall
jointly select one impartial arbitrator in the event the dispute is less than
$50,000. In the event the parties cannot agree on one arbitrator within ten
(10) days, or the dispute is $50,000 or greater, then each party shall select
an impartial arbitrator within the following twenty (20) days, and those two
selected arbitrators shall select the third arbitrator who will comprise a
three-person panel for arbitration. All arbitration matters shall be held
and decided in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"), but without the administration,
cost or supervision of AAA. In any arbitration, the burden of proof shall be
allocated as provided in applicable law, and the arbitrator(s) shall have the
authority to award or grant legal, equitable, and declaratory relief only to
the same extent as if the case were brought in a civil court.
The arbitrator(s), in addition to declaratory relief, preliminary and
permanent injunctive relief and compensatory damages, shall award reasonable
attorneys' fees and costs to the prevailing party.
Confirmation and enforcement of the decision and award rendered by the
arbitrator or panel of arbitrators shall be binding and may be entered in any
court having jurisdiction thereof for confirmation and enforcement of the
arbitration decision and award.
25. SEVERABILITY
If all or part of any term or condition of this Agreement, or the
application of any term or condition of this Agreement, is determined by any
court of competent jurisdiction to be invalid or unenforceable to any extent,
the remainder of the terms and conditions of this Agreement (other than those
portions determined to be invalid or unenforceable) shall not be affected,
and the remaining terms and conditions (or portions of terms or conditions)
shall be valid and enforceable to the fullest extent permitted by law. If a
judicial determination prevents the accomplishment of the purpose of this
Agreement, the invalid term or condition (or portions of terms or conditions)
shall be restated to conform with applicable law and to reflect as nearly as
possible the original intention of the parties.
26. HEADINGS
The headings used in this Agreement are merely for reference. The
headings have no independent legal meaning and impose no obligations or
conditions on the parties.
27. WAIVER OR FORBEARANCE
Any delay or failure of either party to insist upon strict performance
of any obligation under this Agreement or to exercise any right or remedy
provided under this Agreement shall not be a waiver of that party's right to
demand strict compliance, irrespective of the number or duration of any
delay(s) or failure(s). No term or condition imposed on either party under
this Agreement shall be waived and no breach by either party shall be excused
unless that waiver or excuse of a breach has been put in writing and signed
by both parties. No waiver in any instance of any right or remedy shall
constitute waiver of any other right or remedy under this Agreement. No
consent to or forbearance of any breach or substandard performance of any
obligation under this Agreement shall constitute consent to modification or
reduction of the other obligations or forbearance of any other breach.
28. INJUNCTIVE RELIEF
The parties recognize that a remedy at law for a breach of the
provisions of this Agreement relating to Confidential Information, use of
Cognigen's trademark, copyright, and other intellectual property rights, as
well as solicitation of Cognigen business, will not be adequate for
Cognigen's protection, and accordingly Cognigen shall have the right to
injunctive relief to enforce the provisions of this Agreement, in addition to
any other relief and remedies available.
29. CUMULATIVE REMEDIES
All remedies available to either party for breach of this Agreement by
the other party are and shall be deemed cumulative and may be exercised
separately or concurrently. The exercise of a remedy shall not be an
election of that remedy to the exclusion of other remedies available at law
or in equity.
30. NOTICES TO PARTIES
Unless otherwise specified in this Agreement, all notices, requests, or
consents required under this Agreement to be given in writing shall be
transmitted by facsimile, hand delivered, or mailed ( Certified Mail postage
prepaid) to the person indicated below. Each party shall notify the other,
in writing, of any change in the designated addressee:
To Cognigen: Cognigen Networks, Inc.
0000 Xxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx, President and CEO
Facsimile: (000) 000-0000
To eMaxDirect: eMaxDirect LLC
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx III
Facsimile: (000) 000-0000
31. GOVERNING LAW
This Agreement shall be governed by, interpreted, construed, and
enforced in accordance with the laws of the State of Colorado, without
reference to the principles of conflict of laws. Suits solely for injunctive
relief may be brought in any court of competent jurisdiction. All other
suits brought by either party under this Agreement shall only be brought in a
court of competent jurisdiction in the State of Colorado.
32. ENTIRE AGREEMENT
The contents of this Agreement (including any other schedules or
attachments to this Agreement that are referred to and incorporated in this
Agreement by reference) constitute the entire understanding and agreement
between the Parties and supersede any prior agreements, written or oral, that
are not specifically referenced and incorporated in this Agreement. The
terms and conditions of this Agreement shall not be amended except by written
agreement signed by both parties.
IN WITNESS WHEREOF, the undersigned eMaxDirect and authorized
representative of Cognigen have executed this Agreement.
COGNIGEN NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President and CEO
Dated: 5/17/02
eMaxDirect LLC
By: /s/ Xxxx X. Xxxx
Xxxx X. Xxxx, authorized Officer
Dated: 5/17/02
By: /s/ Xxxxxxx X. Xxxxxxxx III
Xxxxxxx X. Xxxxxxxx III, authorized
Officer
Dated: 5/17/02
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, authorized Officer
Dated: 5/17/02
SCHEDULE A
LICENSED MATERIALS
1. Potential Trademarks
COGNIGEN (Stylized)
COGNICONFERENCE (word and stylized)
COGNIGEN SELECT
COGNICLICK
C Logo
COGNICALL
COGNIDIAL
COGNITALK
COGNIBOX
PLATINUM PACKAGES/ PLATINUM COGNIGEN
FOUNDERS CLUB
COGNIGEN POWER PLAN
COGNIGEN SWITCHING TECHNOLOGIES
BIGSUBMIT
BOTTOM LINE
2. Copyright Materials
(a) In the Beginning There Was Cognigen . . .
(b) The Best Rate Calculator
(c) Cognigen Commission and Powerplan Software and programming
(d) Cognigen Commission Structure
(e) Cognigen Agent Database
(f) Cognigen Commission Technology
(g) Cogni-Click
(h) Cognigen's Web-based Services
(i) Cognigen Marketing Materials
(j) Cognigen Training by Phone
(k) All contents of xx.xxx and Xxxxxxxx.xxx web sites
Authorized signatories' Initials:
/s/ DHH /s/TDC /s/WAB /s/PO
DHH TDC WAB PO
3. Online Audio Courses
(a) Gathering Commercial Accounts
(b) Take Advantage of your Upline
(c) Managing and Making Business Contacts
(d) The Cow Trail
4. Online Video Courses
(a) Updating the Asian Profile
(b) Getting Started Right - Series 1 and 2
(c) The Truth About Flat Rate Scams
5. Training Workbooks
(a) Personal Approach to Building the Business
(b) Internet Approach to Building the Business
(c) Basics of Selling Business Accounts
(d) Personal Approach to Commercial Sales
7. Other Materials: Any and all materials, tools or documentation that
Cognigen has used or gratuitously obtained from contributing Cognigen
employees or independent agents that the origin, ownership or first use
pre-dates the incorporation of eMaxDirect.
Authorized signatories' Initials:
/s/ DHH /s/TDC /s/WAB /s/PO
DHH TDC WAB PO
SCHEDULE B
SERVICES
eMaxDirect shall provide Cognigen Networks, Inc. independent agents,
as it expands from time to time, with promotional and sales training tools,
live training seminars and business building materials, relating to
Cognigen's Services, for its entire independent agent base network and
specifically for "Next Level Leaders" of Cognigen, including but not limited
to;
o Downloadable basic customer gathering audio and video training - no
cost to the agent
o Downloadable basic sponsoring audio and video training - no cost to the
agent
o Downloadable basic business building e-books and brochures -no cost to
the agent
o Online basic live audio/video training - no cost to the agent
o Downloadable advanced customer gathering audio and video - fee based
o Downloadable advanced sponsoring audio and video - fee based
o Downloadable leadership audio and video - fee based
o Downloadable building strategy audio and video - fee based
o Downloadable advanced e-books - fee based
o Online advanced audio/video training - fee based
o Advanced Internet Marketing Strategies Seminars - fee based
o Advanced Business Building Strategies Seminars - fee based
o Advanced Leadership Seminars - fee based
o Sales and Recruiting Leads - fee based
o Downline communications tools - fee based
o Additional programs, materials or tools, whether audio, video or
printed, developed and prepared from time to time for "Next Level
Leaders" promotion and sales training tools as the industry changes.
Authorized signatories' Initials:
/s/ DHH /s/TDC /s/WAB /s/PO
DHH TDC WAB PO
