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EXHIBIT 10.5
MASTER EXECUTIVE PROTECTION AGREEMENT
THIS AGREEMENT is made as of June 23, 1999, among PROACTIVE
TECHNOLOGIES, INC., a Delaware corporation ("PTE") and XXXXX EXECUTIVE
PROTECTION, INC. and its affiliate ASSET PROTECTION, INC., each Delaware
corporations (collectively "Xxxxx").
WHEREAS, PTE proposes to engage in the business of distributing through
its exclusive internet web site xxxxxxxxxx.xxx(SM) (the "Web Site"), a
comprehensive package of services to passengers, pilots and other participants
in the private aviation services marketplace and desires, subject to the terms
and conditions hereof, to include the services of Xxxxx in its offerings;
WHEREAS, Xxxxx is in the business of providing, among other services,
personal protection services and asset protection services (such protection
services as provided to pilots, passengers and other participants in the private
aviation services marketplace are hereinafter referred to as the "Services") and
desires for PTE, subject to the terms and conditions set forth herein to include
the Services in the services obtainable through the Web Site;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto, do
hereby agree as follows:
1. Inclusion on Web Site; Exclusivity. XXXXX HEREBY AUTHORIZES PTE, AND
PTE HEREBY AGREES, TO INCLUDE THE SERVICES IN THE PACKAGE OF SERVICES OFFERED
AND OBTAINABLE THROUGH THE WEB SITE. PTE AGREES FOR THE TERM HEREOF THAT XXXXX
SHALL BE THE EXCLUSIVE PROVIDER OF THE SERVICES TO THE PRIVATE AVIATION SERVICES
MARKETPLACE REPRESENTED ON, OR OTHERWISE INCLUDED IN THE SERVICES OBTAINABLE
THROUGH, THE WEB SITE. XXXXX AGREES THAT PTE SHALL BE, FOR THE TERM HEREOF, THE
EXCLUSIVE INTERNET DISTRIBUTOR OF THE SERVICES PROVIDED BY XXXXX.
2. Development. THE WEB SITE DEVELOPMENT TO INCLUDE THE SERVICES SHALL
BE THE RESPONSIBILITY OF PTE AND SHALL BE AT ITS SOLE COST AND EXPENSE. XXXXX,
AT ITS COST AND EXPENSE SHALL COOPERATE WITH PTE IN THE DEVELOPMENT THROUGH
ACCESS TO INFORMATION AND REPRESENTATIVES OF XXXXX NECESSARY OR USEFUL TO PTE IN
THE DEVELOPMENT PROCESS. XXXXX SHALL ADVISE PTE OF THE TYPE OF INFORMATION
CONCERNING THE CUSTOMER THAT XXXXX WOULD LIKE FOR PTE TO GATHER THROUGH THE WEB
SITE THAT WILL ASSIST XXXXX IN PROVIDING THE SERVICES IN A SATISFACTORY AND
LAWFUL MANNER.
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3. CUSTOMERS; PROVISION OF SERVICES. PTE shall include contractual
commitments for the Services on the part of the customer within the master
contract that PTE employs with its customers (the "Customer Contract"). The
Customer Contract shall contain provisions relating to the Services satisfactory
to Xxxxx, whose approval shall not be unreasonably withheld, and Xxxxx agrees to
be bound by the terms of the Customer Contract as approved by Xxxxx. The
provisions of the Customer Contract shall include exculpation and limitation of
liability for the benefit of Xxxxx and PTE and provisions pursuant to which
customers will agree to refrain soliciting Xxxxx employees for employment. Xxxxx
agrees to provide the Services to each customer accepted through the Web Site in
accordance with procedures mutually agreed upon from time to time. Xxxxx shall
have the right to accept or reject any customer in its discretion. The initially
agreed upon procedures shall be mutually agreed upon at the conclusion of the
Web Site development. From time to time the parties may amend by mutual
agreement such procedures.
4. COLLECTION AND BILLING. PTE shall be responsible for billing and
collection of (i) fees for the Services and (ii) amounts for reimbursement of
the reasonable expenses incurred in connection with the rendition of the
Services. Attached as Exhibit A is a schedule of fees to be paid Xxxxx for the
Services and fees to be collected by PTE. This fee schedule shall govern until
and unless the parties subsequently agree otherwise; provided, however, that
Xxxxx shall have the right to reasonably adjust its rates on an annual basis.
PTE is authorized to charge the customers of the Services the amount set forth
on the schedule of fees and to retain the difference between the amounts charged
and the amounts due Xxxxx. Once a month, Xxxxx shall xxxx PTE for the fees and
expenses for the Services incurred for the previous month identifying
specifically the charges by customer and service. PTE shall pay the amounts so
billed by Xxxxx within ten days of receipt by PTE of good funds from the
customer. It is anticipated that most Services shall be paid by charge or credit
card. The parties agree to bear all credit risks, including the risk of charge
backs, in proportion to their respective interest in the payments.
5. COMPLIANCE WITH LAW. Xxxxx represents that it is and will be fully
licensed to provide the Services in all applicable jurisdictions contracted
through the Web Site; provided, however, that the Services offered in any
jurisdiction may vary based on the applicable laws or regulations of such
jurisdiction and Xxxxx may not provide services in some jurisdictions. Xxxxx
will not engage in any illegal activity nor assist any customer in any illegal
activity. Xxxxx is authorized and expected to discontinue all Services to any
customer engaged in an illegal activity known to Xxxxx.
6. INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) The parties acknowledge that the purpose of Xxxxx'x personal
protection services is to reduce the risk of personal injury to the protectee
designated by the customer (the "Protectee"). Neither Xxxxx nor any of its
owners, directors, officers, employees, independent contractors or
subcontractors shall be deemed to have insured or guaranteed the personal safety
of the Protectee. Xxxxx neither warrants nor represents that the protective
services to be provided will, in fact, successfully protect the Protectee, from
personal injury. Xxxxx shall not
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be liable for any failure to perform under this Agreement or the Customer
Contract caused by any event or occurrence outside of its control, including,
without limitation, state action, orders or actions of law enforcement
authorities.
(b) Xxxxx shall indemnify, defend and hold PTE harmless against any and
all claims, liabilities, obligations, penalties, demands, causes of action,
suits, losses, damages, costs and expenses (hereinafter called "Customer
Claims") which they may suffer, incur, be responsible for or pay out as a result
of any bodily injuries (including death) to any person (other than other
providers of services through the Web Site), to the extent directly attributable
to the negligence or willful misconduct of Xxxxx or its employees; provided that
with respect to any Customer Claim by, from or through a customer of PTE, the
customer, in its engagement with PTE, has agreed to the standard limitation of
liability language approved by Xxxxx as set forth in the Customer Contract.
(c) XXXXX HEREBY INDEMNIFIES AND AGREES TO HOLD PTE HARMLESS FROM ANY
AND ALL LOSSES, COSTS, EXPENSES, DAMAGES (INCLUDING COMPENSATORY, CONSEQUENTIAL,
EXEMPLARY AND PUNITIVE DAMAGES) PENALTIES, FINES, CHARGES, DEMANDS, LIABILITIES
AND OBLIGATIONS OF ANY KIND (INCLUDING INTEREST, PENALTIES AND REASONABLE
ATTORNEYS' FEES AND CONSULTANTS' FEES, EXPENSES AND DISBURSEMENTS) INCURRED OR
SUFFERED BY PTE TO THE EXTENT DIRECTLY ATTRIBUTABLE TO A FAILURE OF XXXXX TO
COMPLY WITH ANY OF ITS OBLIGATIONS HEREUNDER, OR UNDER ANY APPLICABLE LAW OR
REGULATION OR OTHERWISE ARISING OUT OF THE NEGLIGENT PROVISION, OR FAILURE TO
PROVIDE, THE SERVICES (OTHER THAN A CLAIM BY OTHER PROVIDERS OF SERVICES THROUGH
THE WEB SITE AND OTHER THAN CUSTOMER CLAIMS WHICH SHALL BE SUBJECT TO THE
INDEMNIFICATION PROVISIONS OF SUBSECTION (B) HEREOF). IF A CLAIM BY A THIRD
PARTY IS MADE AGAINST PTE, PTE SHALL PROMPTLY GIVE NOTICE THEREOF TO XXXXX WHICH
SHALL HAVE THE RIGHT TO ASSUME THE DEFENSE OF SUCH CLAIM. NO FAILURE TO GIVE OR
PROMPTLY GIVE NOTICE OF A CLAIM SHALL EXCUSE XXXXX FROM ITS INDEMNIFICATION
OBLIGATIONS HEREUNDER EXCEPT TO THE EXTENT THAT XXXXX IS PREJUDICED THEREBY.
(d) With respect to any Customer Claim asserted against Xxxxx arising
from or related to this Agreement, or for any act or omission on the part of
Xxxxx or its personnel, Xxxxx'x liability shall be limited to the proceeds or
insurance obtained by Xxxxx, with respect to the incidents or occurrences
involved therein. Further, neither Xxxxx nor PTE shall be liable to the other
for any indirect, incidental, special or consequential damages arising from or
related to this Agreement, any act or omission in connection with the providing
of Services hereunder or any act or omission of their personnel. Xxxxx shall not
be liable to PTE for any claim against PTE by any other provider of Services
through the Web Site.
(e) PTE hereby indemnifies and agrees to hold Xxxxx harmless from any
and all losses, costs, expenses, damages (including compensatory, consequential,
exemplary and punitive damages) penalties, fines, charges, demands, liabilities
and obligations of any kind (including interest, penalties and reasonable
attorneys' fees and consultants' fees, expenses and disbursements incurred or
suffered by Xxxxx as a result of a breach of any of its obligations under this
Agreement by PTE (other than claims by Xxxxx against other providers of services
through the web site). If a claim by a third party is made against Xxxxx, Xxxxx
shall promptly give notice thereof to PTE which shall have the right to assume
the defense of such claim. No failure to give or promptly give notice of a claim
shall excuse PTE from its indemnification obligations hereunder except to the
extent that PTE is prejudiced thereby.
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7. INSURANCE. Xxxxx shall furnish at its expense, and keep in full
force and effect through the term of this Agreement, the following insurance
coverages which shall be underwritten by carriers reasonably acceptable to PTE:
(a) Worker's Compensation Insurance. As required by the laws
and regulations applicable to and covering employees of Xxxxx engaged in the
performance of the work under the Agreement.
(b) Employer's Liability Insurance. Protecting Xxxxx against
common law liability, in the absence of statutory liability, for employee bodily
injury with a limit of not less than $1,000,000.
(c) Commercial General Liability Insurance. With combined
single limits of liability of not less than $15,000,000 bodily injury and
property damage for each occurrence and aggregate. Such insurance shall include
provisions or an endorsement to the general liability policy naming PTE as an
additional insured with respect to the negligent acts, errors or omissions of
Xxxxx employees in the performance of the Services provided under this
Agreement.
8. CONFIDENTIALITY. Xxxxx and PTE acknowledge that in the performance
of their respective duties hereunder, each will come into possession
confidential information and trade secrets of the other, and each agree that
they and their respective officers, directors, employees and agents shall not
disclose and shall keep confidential any and all such confidential information
and trade secrets of the other except information that entered the public domain
otherwise then through a breach of this Section 8, unless Xxxxx or PTE,
respectively came into rightful possession of such information from an unrelated
third party or unless Xxxxx or PTE, as the case may be, independently developed
such information.
9. NON-SOLICITATION. PTE and Xxxxx, each agrees on its own behalf and
on behalf of each of its officers, directors, employees and agents that it will
not, without the express prior written consent of the other, either during the
term of this Agreement or for a period of twenty-four (24) months after the
termination hereof, hire, employ or otherwise engage the services of any
officer, director, employee or agent of the other. Each party hereto recognizes
that the employment relations protected by this Section 9 are unique, no
adequate remedy at law exists for a violation of this Section 9 and the other
party's right to specific performance is essential to protect such other party's
business interests.
10. ARBITRATION; VENUE. ANY DISPUTE, CONTROVERSY, CLAIM OR DEMAND
BETWEEN THE PARTIES HERETO RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE
SETTLED BY BINDING ARBITRATION CONDUCTED AT A LOCATION AGREED TO BY THE PARTIES
(PROVIDED THAT IF THE PARTIES DO NOT AGREE TO A LOCATION, THE LOCATION SHALL BE
DETERMINED BY THE PRESIDENT OF THE AMERICAN ARBITRATION ASSOCIATION (OR HIS
DESIGNEE) AFTER TAKING INTO ACCOUNT THE CONVENIENCE OF THE PARTIES), IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. IN THE EVENT
OF ANY SUCH DISPUTE, CONTROVERSY, CLAIM OR DEMAND EITHER PARTY MAY COMMENCE THE
ARBITRATION PROCESS BY GIVING WRITTEN NOTICE TO THE OTHER PARTY SETTING FOR THE
NAME OF AN ARBITRATOR. THE PARTY RECEIVING ANY SUCH NOTICE SHALL HAVE THIRTY
(30) DAYS FROM RECEIPT THEREOF TO NAME AN ADDITIONAL ARBITRATOR WRITTEN NOTICE
GIVEN TO THE OTHER PARTY HERETO. THE TWO ARBITRATORS SHALL THEN MEET AS PROMPTLY
AS PRACTICAL AND NAME A THIRD ARBITRATOR. IF THE TWO ARBITRATORS CANNOT AGREE
WITHIN THIRTY (30) DAYS ON THE THIRD ARBITRATION, THE THIRD ARBITRATOR SHALL BE
NAMED BY THE PRESIDENT OF THE AMERICAN ARBITRATION ASSOCIATION.
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11. NOTICES. ANY NOTICE REQUIRED OR PERMITTED UNDER THIS AGREEMENT
SHALL BE GIVEN IN WRITING AND SHALL BE DEEMED EFFECTIVELY GIVEN UPON PERSONAL
DELIVERY, UPON DELIVERY BY REPUTABLE OVERNIGHT COURIER OR THREE BUSINESS DAYS
AFTER DEPOSIT IN THE UNITED STATES MAIL, POSTAGE PRE-PAID, BY REGISTERED OR
CERTIFIED MAIL, ADDRESSED
(i) if to Proactive Technologies, Inc. to
Xxxxx 000, 0000 Xxxxxxxxx Xxxx, X.X.,
Xxxxxxx, XX 00000,
Facsimile 000-000-0000,
Telephone 000-000-0000,
Attention: C. Xxxxxxx Xxxxx, Chief Executive Officer;
With a copy to:
Xxxxxx X. Xxxxxx
XXXXXX & XXXXXX
2700 International Tower
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000
Facsimile 000-000-0000
TELEPHONE 000-000-0000
(ii) if to Xxxxx to
00000 Xxxxx Xxxxxxx Xxxxx,
Xxxxxx, XX 00000-0000,
Facsimile 000-000-0000,
TELEPHONE 000-000-0000
Attention: Xxxxx X. Xxxxxxx, President
12. TERM. This Agreement shall extend for an initial term of two (2)
years and shall continue from year to year thereafter until sixty (60) days
after either party gives written notice of the termination of the agreement to
the other party.
13. MISCELLANEOUS.
(a) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall together constitute one and the same
instrument.
(b) Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by any party hereto without the express written
consent of the other party. Neither a merger, sale of stock or other business
combination of PTE shall be considered an assignment hereof.
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14. THIRD PARTY BENEFICIARIES. This Agreement has been entered into for
the sole benefit of the parties who are signatories hereto. It is not intended
to benefit, or create any rights whatsoever in favor of, any persons other than
PTE or Xxxxx.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXX EXECUTIVE PROTECTION, INC.
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By: Xxxxxx X. Podolax, Director of Operations
ASSET PROTECTION TEAM, INC
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By: Xxxx X. Xxxxxxxx, Vice-President
PROACTIVE TECHNOLOGIES, INC.
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By C. Xxxxxxx Xxxxx, its Chief Executive Officer
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