AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of November 1, 1999,
between IMAGING TECHNOLOGY SOLUTIONS, L.L.C. (d/b/a NetEx) ("NetEx") and the
POSTAL BUSINESS CENTER NETWORK, INC. ("xxxxxxxxxx.xxx) (the "PBC Network").
RECITALS
A. NetEx is engaged in the business of providing a secured Internet document
delivery service (the "Program").
B. The PBC Network, on behalf of its present and future member stores, wishes to
provide for the exclusive use of the Program in the Western Hemisphere by such
members.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound, hereby agree as follows:
1. GRANT.
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NetEx shall provide, exclusively, the Program to present and future postal store
members of the PBC Network located in the Western Hemisphere during the term of
this Agreement. "Postal store members" shall mean retail, mail, parcel and
shipping centers, and is hereinafter collectively referred to as "Member" or
"Members."
2. TERM.
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The initial term of this Agreement shall be for a period of ten (10) years
commencing on November 1, 1999 and ending on November 1, 2009. Thereafter, this
Agreement shall automatically renew for successive five-year periods, unless
either party notifies the other of desired contract modifications no later than
six (6) months prior to the end of the then-current term. Upon such
notification, the parties shall agree to modify terms within three (3) months or
else this Agreement will terminate at the end of the then-current term.
3. PROMOTIONS.
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The PBC Network and its parent corporation, Universal Express, Inc. ("USXP"),
will use their best efforts to promote the Program with its Members,
exclusively, and with subsidiaries and business affiliates of USXP
("Affiliates"), including without limitation, the members of the SkyNet
International Courier Network (USXP, the PBC Network, Members and Affiliates
hereinafter sometimes collectively referred to as "Customers"). USXP and the PBC
Network shall not promote or offer to its Members and Affiliates any other
product or service in competition with the Program.
4. PRICING AND CONSIDERATION.
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a) USXP and the PBC Network will use their best efforts to raise from present
and future investment sources available to them and make available to
NetEx, depending upon the roll-out schedule for the Program to the Members
as determined by USXP and PBC Network, a total amount over a 24 month
period of $1,700,000.00 (specific payment terms are attached hereto as
Exhibit A).
b) Amount. Each Member receiving the Program will pay to NetEx additional
charges based upon the monthly volume of use of the Program by such member
("Monthly Charges") as set forth on the pricing model attached hereto as
Exhibit B.
c) Invoices. NetEx shall invoice Customers on a monthly basis. All invoices
remaining unpaid after ninety (90) days shall accrue interest at the rate
of eighteen (18%) percent per annum
5. TRADEMARKS.
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The Customers may display NetEx's trademarks to identify, promote and market the
Program on their business cards, stationery and other promotional materials
indicating that the party is an authorized dealer of the Program. No other use
of NetEx's trademarks is authorized, without NetEx's prior written consent.
6. USER SUPPORT.
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NetEx will provide customer dealer support for the Program to all authorized
customers for so long as this Agreement is in force.
7. COPYRIGHT RESTRICTIONS.
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This Agreement shall not be construed to grant any right, title, or interest in
any intellectual property rights embodied in or associated with the Program.
Unauthorized copying of the Program, including modifications of the Program or
the creation of programs in which the Program has been merged or included with
other data products, for distribution to third parties, whether gratuitously or
for sale, is expressly forbidden.
8. PATENT AND COPYRIGHT ACTIONS AND INDEMNIFICATION.
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a) Obligation to Defend. NetEx will, at NetEx's expense, defend any
action brought against a Customer, as defined in Section 3, that is
based on a claim of U.S. copyright or patent infringement by the
Program used within the scope of the license granted under this
Agreement. The Customer must promptly inform NetEx, in writing, of any
claim and allow NetEx to control the defense of such action and agree
to any settlement of claims.
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b) Liability. NetEx will pay all damages and costs awarded, or that
result from NetEx's settlement of claims, in any such action.
c) Right to Replace or Alter. If the Program, in NetEx's opinion, is
likely to be the subject of a copyright or patent infringement claim,
NetEx may:
i. obtain the right to continue using the Program; or
ii. replace or alter the Program to make it non-infringing,
provided that the new Program is equal to or better than the
existing Program.
9. LIMITATION OF LIABILITY.
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a) Amount. NetEx's liability for damages with respect to this Agreement
and the license provided, except for liability for patent or copyright
infringement, will not exceed the lesser of the subject Customer's
actual damage or $100 (or equivalent in local currency).
b) Type. NetEx in no event will be liable for:
i) lost profits or for other special, indirect, incidental or
consequential damages;
ii) acts or omissions of a Customer, including but not limited to
improper or insufficient addressing or instructions for proper
transmission or delivery;
iii) a Customer or recipient violating any of the terms of this
Agreement; or
iv) for loss, damage or delay caused by an event beyond NetEx's
control, including but not limited to acts of God, weather
conditions, acts of public enemies, war, strikes, civil
commotion, or acts of public authorities with actual or
apparent authority.
10. FORCE MAJEURE AND EXCUSABLE DELAYS.
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a) Neither party shall be liable for any costs or damages attributable to
non-performance arising out of any event of force majeure, which shall consists
of any cause not within its reasonable control or not reasonably foreseeable and
not due to its fault or negligence.
b) Each party shall give the other party prompt notice of the occurrence of any
event of force majeure that is expected to cause delay hereunder, and the date
of performance by any such party shall be extended for a period not exceeding
the period of delay caused by the event of force majeure identified in such
notice.
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c) Unless the performance by either party of its obligations under this
Agreement is delayed by the occurrence of an event of force majeure for a period
of more than one (1) month (and such delay is excused under the foregoing
provisions), no event of force majeure shall excuse permanent nonperformance,
but shall excuse only delays in performance and only to the extent that such
delays are directly attributable to such cause.
d) Neither party shall be liable for any delay or failure in the performance of
its obligations under this Agreement that directly results from any failure of
the other party to perform its obligations as set forth in this Agreement.
11. EARLY TERMINATION OF AGREEMENT
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This Agreement may be terminated by a party when the other party does or fails
to do any of the following:
a) FAILURE TO PAY. Fails to pay amounts due hereunder within 60 days
after notice that same is due.
b) BANKRUPTCY. Is adjudicated as a bankrupt.
c) INSOLVENCY. Insolvency, the appointment of a receiver, the making of
an assignment for the benefit of creditors or entering into a
composition with a creditor.
d) ASSIGNMENT. Assigns or transfers this Agreement, except as provided
herein.
e) BREACH OF THE CONDITIONS OF AGREEMENT. The breach of any of the
other material terms and conditions of this Agreement and fails to
cure such breach within sixty (60) days after such breach.
12. CUSTOMER'S REMEDIES.
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Customer's remedies, as provided in this Agreement, are exclusive.
13. Notices.
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All notices hereunder shall be in writing and shall be deemed to have been duly
given when sent by certified mail, return receipt requested or by private
overnight mail service providing evidence of delivery (e.g. Federal Express) to
the following addresses until such time as a party hereto shall give the other
parties hereto not less than ten (10) days' prior written notice of a change of
address in accordance with the provisions hereof:
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If to NetEx: Mr. Xxxx Xxxxxxx, President
Imaging Technology Solutions, LLC
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
With copy to: X. Xxxxxx Xxxxxx, Esq.
Chaffe, McCall, Xxxxxxxx, Xxxxx & Sarpy, L.L.P.
2300 Energy Centre, 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
If to the PBC Network: Xx. Xxxxxxx X. Xxxxxxxx, Chairman
Postal Business Center Network, Inc.
00 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to USXP: Xx. Xxxxxxx X. Xxxxxxxx, President & CEO
Universal Express, Inc.
00 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
14. DISPUTE RESOLUTION.
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The parties hereto shall use all reasonable efforts to amicably resolve all
disputes arising under this Agreement. If despite such efforts any matter cannot
be amicably resolved, the matter shall be referred to the Presidents of NetEx
and USXP and the Chairman of the PBC Network, who shall promptly meet for the
purpose of resolving such dispute.
15. CONFIDENTIALITY.
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The parties hereto will hold and will use its best efforts to cause its
officers, directors, employees and other agents (collectively, its "Agents") to
hold, in confidence, all confidential documents and information concerning the
other parties hereto furnished to such party in connection with this Agreement,
except to the extent that such information can be shown to have been (a)
previously known by such on a non-confidential basis, (b) in the public domain
through no fault of such party or (c) later lawfully acquired by such party on a
non-confidential basis from a source other than the parties hereto; provided
that the parties may disclose such information in connection with this Agreement
to their Agents so long as such persons are informed by the parties of the
confidential nature of such information and are directed by the parties to keep
such information confidential and not use it for any purpose other than its
intended use. Notwithstanding the foregoing, the parties hereto may disclose
such information if (i) compelled to disclose by judicial or administrative
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process or by other requirements of law or (ii) necessary to establish such
party's position in any litigation or any arbitration or other proceeding based
upon or in connection with the subject matter of this Agreement. Prior to any
disclosure pursuant to the preceding sentence, a party shall give reasonable
prior notice to the other party of such intended disclosure, and if requested by
the notified party, the disclosing party shall use all reasonable efforts to
obtain a protective order or similar protection for such information and shall
other disclose only such information as is legally required. If the Agreement is
terminated, the parties hereto will use their best efforts to cause its Agents
to, destroy or deliver to the other party, upon request, all documents and other
materials, and all copies thereof, containing confidential information obtained
from such party in connection with the Agreement.
16. MISCELLANEOUS.
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a) The parties hereto are independent contractors. Nothing contained in this
Agreement is intended or shall be deemed to constitute a partnership, joint
venture, franchise, or agency relationship between the parties hereto. Neither
party shall incur any debts or make any commitments upon the other, except to
the extent specifically provided herein.
b) Each party represents and warrants that it has full power and authority to
undertake the obligations set forth in this Agreement and that it has not
entered into any other agreements nor will it enter into any agreements that
would render it incapable of satisfactorily performing its obligations
hereunder.
c) Each party agrees that it will comply with all applicable laws and
regulations of governmental bodies or agencies in its performance under this
Agreement.
d) All questions concerning the validity, operation, interpretation, and
construction of this Agreement will be governed by and determined in accordance
with the laws of New York.
e) Each party hereto shall bear its own expenses in the negotiation and
execution of this Agreement.
f) Neither party shall by mere lapse of time, without giving notice or taking
other action hereunder, be deemed to have waived any breach by the other party
of any of the provisions of this Agreement. Further, the waiver by either party
of a particular breach of this Agreement by the other shall not be construed as
or constitute a continuing waiver of such breach or of other breaches of the
same or other provisions of this Agreement.
g) The captions in this Agreement are for reference purposes only and shall not
in any way affect the meaning or interpretation of this Agreement.
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h) The parties hereto acknowledge that this Agreement is the complete and
exclusive statement of agreement respecting the subject matter hereto and
supersedes all proposals, oral or written, understandings, representations,
conditions, and other communications between the parties relating hereto. This
Agreement may be amended only by a subsequent writing that specifically refers
to this Agreement and is signed by both parties, and no other act, document,
usage, or customer shall be deemed to amend this Agreement.
i) None of the parties shall sell, assign, transfer, convey, delegate or
encumber its duties and obligations hereunder, or any rights or interest
hereunder, and shall not suffer or permit any voluntary assignment or transfer
or encumbrance thereof, by operation of law or otherwise, without the prior
written consent of the other parties.
j) This Agreement may be signed in two or more counterparts, all of which taken
together shall constitute one and the same Agreement, binding on all of the
parties hereto.
k) If any portion of this Agreement is declared to be invalid by any court of
competent jurisdiction, such determination shall not affect the remainder hereof
and the same shall remain in full force and effect.
WHEREBY, the parties have caused this Agreement to be executed by their
duly authorized officers as set forth below effective as of November 1, 1999.
IMAGING TECHNOLOGY SOLUCTIONS
/s/XXXX XXXXXXX
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Xxxx Xxxxxxx, President
POSTAL BUSINESS CENTER NETWORK, INC.
/s/XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, President & CEO
UNIVERSAL EXPRESS, INC.
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, Chairman
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EXHIBIT A
Specific payment terms and actions based on payments are as follows:
$200,000 raised by USXP or outside funding sources in accordance with the
roll-out schedule.
$10,000 due and payable for each 100 members who prepay for the NetEx service
and are eligible for a free flatbed scanner.
Balance due and payable in accordance with the roll-out schedule.
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EXHIBIT B
The NetEx service charges its customers based on the size of the documents that
are transmitted.
Below is the NetEx pricing schedule:
$9.95 per month for between 0 and 5 megabytes
$17.95 per month for between 5 and 10 megabytes
$32.95 per month for between 10 and 20 megabytes
$74.95 per month for between 20 and 50 megabytes
$129.95 per month for between 50 and 100 megabytes
$219.95 per month for between 100 and 200 megabytes
Additional usage above 200 are $1.00 per megabyte.
In order for PBC Network members to receive a flatbed scanner at no charge,
again it will depend on the rollout, they must prepay for two years. In return,
the PBC Network members will be paid the following:
-- of revenue generated from the document transmissions below the first 5
megabytes of data transmission.
-- of the revenue generated from the NetEx subscriptions to other individuals
or businesses.
-- of the revenue generated by resellers that are introduced to NetEx for the
purpose of reselling the NetEx product.
-- The remaining of the charge to the PBC Network customer after a $1.00 per
transaction charge is paid to NetEx.
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