EXHIBIT 10.2
TOUCHSTAR SOFTWARE CORPORATION RESELLER AGREEMENT
DATED SEPTEMBER 14, 2005
TOUCHSTAR SOFTWARE CORPORATION
RESELLER AGREEMENT
This Reseller Agreement is made and entered into as of this 14 day of
SEPTEMBER, 200_ (the "Effective Date"), by and between TOUCHSTAR SOFTWARE
CORPORATION, a Delaware corporation with its principal place of business at 0000
Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx
("TouchStar"), and WORLDWIDE STRATEGIES, a NEVADA corporation, with its
principal place of business at 0000-X XXXXXXX XXX XXX 000 XXXXXX, XX 00000
("Reseller").
RECITALS
A. TouchStar produces and distributes the TouchStar Software and provides the
related Support Services.
B. Reseller has represented to TouchStar that it possesses experience,
knowledge, and skill in the calling service industry and has the capability to
effectively market and distribute the TouchStar Software and Support Services in
the Territory.
C. Reseller desires to market and distribute the TouchStar Software to Customers
as a non-exclusive value added reseller in the Territory pursuant to the terms
contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth in this Agreement, and intending legally to be bound hereby,
the parties agree as follows:
1. DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the meanings set forth below (such meanings to be
equally applicable to the singular as well as the plural forms of the terms
defined):
"AAA" has the meaning ascribed to that term in Section 10.12(b) of this
Agreement.
"AAA Rules" has the meaning ascribed to that term in Section 10.12(b)
of this Agreement.
"Affiliate" as used in this Agreement with respect to an Entity, means
any person controlling, controlled by or under common control with such Entity.
For the purpose of this definition, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of an Entity, whether
through the ownership of voting securities or otherwise.
"Agreement" means this Reseller Agreement and the Exhibits attached
hereto as the same may be amended from time to time in accordance with the terms
set forth herein.
Rev 3/05
"Ancillary Software" has the meaning ascribed to that term in Section
4.13 of this Agreement.
"Annual Marketing Plan" has the meaning ascribed to that term in
Section 4.3 of this Agreement.
"Assessment" has the meaning ascribed to that term in Section 6.2 of
this Agreement.
"Confidential Information" means any and all trade secrets and other
confidential information and know-how related directly or indirectly to
TouchStar's business or its products, including inventions, materials, formulae,
confidential research, technical information, technology, general know-how,
patterns, specifications, systems data, equipment, operating standards and
procedures, developments and improvements, computer programs, operating systems,
source code, object code, middleware, firmware, information regarding projects,
programs and sales, names and addresses of past and present customers, pricing
data, internal procedures, systems, methods forms, manuals, financial data,
price lists, customer service information, marketing information, and all other
information relating to TouchStar, the TouchStar Software, Support Services, or
other products or services of TouchStar that is not generally known to the
public.
"Copyrights" means all right, title, and interest of TouchStar in and
to all copyrights and rights and interests in copyrights and works protectible
by copyright, whether now owned or hereafter acquired or created by TouchStar
(in whole or in part) and all renewals and extensions thereof, throughout the
universe and in perpetuity, whether or not registered or recorded in the United
States Copyright Office or in the copyright office or agency of any other
country or jurisdiction and including all works based upon, incorporated in,
derived from, incorporating or relating to all works covered by copyright,
including copyrights or rights or interests in copyrights registered or recorded
in the United States Copyright Office or in the copyright office or agency of
any other country or jurisdiction.
"Customer" means a third party end-user with headquarter offices in the
Territory to whom or to which Reseller resells or causes the resale of the
TouchStar Software and Support Services.
"Dollars" or "US$" means the lawful currency of the United States.
"Effective Date" has the meaning ascribed to that term in the
introductory paragraph of this Agreement.
"Entity" means any general partnership (including a limited liability
partnership), limited partnership (including a limited liability limited
partnership), limited liability company, corporation, joint venture, trust,
business trust, cooperative, association or any foreign trust or foreign
business organization.
"Fees" means the installation fees, licensing fees and support service
fees owed by Reseller to TouchStar, as set forth on EXHIBIT A.
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"Government Controls" means economic and other sanctions instituted by
a Governmental Body related to certain transactions, such as the transfer of
technology and technical data, the transfer of funds, the provisions of goods
and services, and other dealings, including, but not limited to, sanctions
administered by the United States government pursuant to the United States
Export Administration Act, the United States Arms Export Control Act, the
International Emergency Economic Powers Act, the United States Foreign Corrupt
Practices Act of 1977, all as amended, and the USA PATRIOT Act, and the
regulations promulgated thereunder and certain regulations promulgated by the
United States Department of Treasury.
"Governmental Body" means any (a) nation, state, country, or other
jurisdiction of any nature, (b) national, federal, state, local, municipal,
foreign, or other government, governmental, or quasi-governmental authority of
any nature (including any governmental agency, branch, department, official, or
entity and any court or other tribunal), or (c) body exercising, or entitled to
exercise, any administrative, executive, judicial, legislative, police,
regulatory, or taxing authority or power of any nature.
"Intellectual Property Rights" means the Confidential Information of
TouchStar, the Copyrights, the Patents, and the Trademarks.
"Legal Requirements" means any national, federal, state, local,
municipal, foreign, international, multinational, or other administrative order,
law, constitutional law, ordinance, principle of law, regulation, statute,
treaty, directive or decree, including Government Controls.
"License Agreement" means the license agreement to be provided to each
Customer with regard to the use by such Customer of the TouchStar Software, in
the form of EXHIBIT B, attached to this Agreement.
"Licenses" means those software and other licenses from third parties
necessary lawfully to provide the Support Services.
"Marketing Materials" has the meaning ascribed to that term in Section
3.2 of this Agreement.
"Other Reseller" means any person or Entity acceptable to TouchStar in
its sole discretion with whom or with which Reseller enters into an Other
Reseller Agreement to promote, market, distribute, license and sell the
TouchStar Software and Support Services to Customers in the Territory; PROVIDED
that such person or Entity shall not be an end-user of either the TouchStar
Software or the Support Services.
"Other Reseller Agreement" has the meaning ascribed to that term in
Section 2.2(a)(i) of this Agreement.
"Patents" means (a) all right, title and interest of TouchStar in and
to all applicable Letters Patent and applications for Letters Patent and the
inventions described therein and any Letters Patent which may issue therefrom
and which have been or may have been filed in the United States or in any other
country for any such inventions or for any improvements, reissues, divisions,
continuations, renewals, additions, extensions, substitutes,
continuations-in-part which may be made, filed, or
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granted on any of them, including the rights to all benefits therefrom arising
under the International Convention for the Protection of Industrial Property or
any other international treaty affecting such rights; (b) any right, title and
interest of TouchStar in any utility model, design registration, trade secret,
confidential research, development and commercial information, know-how,
technical information, engineering, practical information, patterns,
specifications, formulae, manufacturing procedures, quality control, data and
procedures, systems' data, software programs, equipment, operating standards and
applications, developments, and improvements; and (c) any rights to licenses or
other benefits under any Letters Patent, applications for Letters Patent and/or
invention, utility model registration, design registration and inventor's
certificate anywhere in the world, whether or not patentable, which are obtained
by TouchStar or to which TouchStar becomes entitled during the term of this
Agreement.
"Private Label Software" has the meaning ascribed to that term in
Section 7.2 of this Agreement.
"Quotas" has the meaning ascribed to that term in Section 4.11 of this
Agreement.
"Registered Leads" has the meaning ascribed to that term in Section 2.6
of this Agreement.
"Reseller" has the meaning ascribed to that term in the introductory
paragraph of this Agreement, including its legal representatives, successors,
and assigns.
"Reseller Marks" has the meaning ascribed to that term in Section 7.2
of this Agreement.
"Reverse Engineer" means translate, disassemble, decompile, analyze,
reverse engineer or reverse program, or otherwise attempt to derive the code or
programming for the TouchStar Software or the Private Label Software.
"Specifications" has the meaning ascribed to that term in Section
3.4(a) of this Agreement.
"Support Services" means those support services related to the
TouchStar Software as described in the attached EXHIBIT C.
"Technical Prerequisites" has the meaning ascribed to that term in
Section 3.4(b) of this Agreement.
"Term" has the meaning ascribed to that term in Section 8.1 of this
Agreement.
"Territory" means the geographical region described in the attached
EXHIBIT D.
"TouchStar" has the meaning ascribed to that term in the introductory
paragraph of this Agreement, including its legal representatives, successors,
and assigns.
"TouchStar Intellectual Property Rights" means the Copyrights, the
Patents, and the Trademarks.
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"TouchStar Software" means the software necessary for the operation of
call center systems which is being licensed by TouchStar pursuant to this
Agreement. In the event that TouchStar develops Private Label Software for
Reseller, the term "TouchStar Software," when the context so requires, shall
include Private Label Software.
"Trademarks" means all right, title and interest of TouchStar in and to
(a) all trademarks, trade names, trade styles, service marks, logos, trade
dress, unpatentable designs, and designations and indicia of any kind, now
existing or hereafter adopted or acquired, and all registrations and recordings
thereof, including applications, registrations, and recordings in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof, any other country or jurisdiction or any
political subdivision thereof, all whether now owned or hereafter acquired by
TouchStar and all reissues, extensions, or renewals thereof, and (b) any
licenses of or licensing agreements (including registered user agreements)
pertaining to any of the foregoing, together with all amendments, supplements,
modifications or extensions thereof.
"United States" means the United States of America and its territories
and possessions.
2. APPOINTMENT OF RESELLER.
2.1 NONEXCLUSIVE RESELLER. Subject to applicable Legal Requirements:
(a) TouchStar hereby appoints Reseller as its nonexclusive value-
added reseller for the limited purposes of promoting, marketing,
distributing, licensing and selling the TouchStar Software and
Support Services in the Territory, and Reseller accepts the
appointment as such. Reseller shall have the right under this
Agreement to promote, market, distribute, license and sell the
TouchStar Software and Support Services to Customers in the
Territory. TouchStar reserves the right to provide the TouchStar
Software and Support Services to other customers in the
Territory and/or to appoint additional distributors or
representatives in all or any part of the Territory.
2.2 OTHER RESELLERS. Subject to applicable Legal Requirements and to the
provisions of this Section 2.2:
(a) Reseller may promote, market, distribute, license and sell
TouchStar Software and Support Services in the Territory through
Other Resellers; PROVIDED that:
(i) Reseller notifies TouchStar in writing in respect of
each Other Reseller that Reseller intends to use to
promote, market, distribute, license and sell TouchStar
Software and Support Services in the Territory;
(ii) TouchStar approves in writing each Other Reseller that
Reseller intends to use to promote, market, distribute,
license and sell TouchStar Software and Support Services
in the Territory, which approval TouchStar may grant in
its sole discretion;
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(iii) Reseller enters into a binding written agreement with
each Other Reseller (the "Other Reseller Agreement"),
which Other Reseller Agreement incorporates the terms,
conditions, duties, rights and obligations of this
Agreement;
(iv) Reseller provides to TouchStar a fully executed copy of
each Other Reseller Agreement;
(v) each Other Reseller shall promote, market, distribute,
license and sell the TouchStar Software and the Support
Services only in the Territory and only in accordance
with the provisions of this Agreement, including, but
not limited to, delivery of License Agreements to
Customers, and compliance with Legal Requirements and
Government Controls; and
(vi) Reseller shall terminate any Other Reseller Agreement in
the event that the Other Reseller to whom or to which
the Other Reseller Agreement relates fails to comply
with the terms and conditions of such Other Reseller
Agreement or this Agreement. Any Other Reseller shall
obtain the TouchStar Software and the Support Services
directly from the Reseller.
(b) Reseller shall be responsible for all actions of Other Resellers
with regard to the promotion, marketing, distribution, licensing
and sale of TouchStar Software. Reseller shall be liable for any
unauthorized or illegal use of the TouchStar Software by any
Other Reseller, including, but not limited to, any actions or
attempts to Reverse Engineer the TouchStar Software and any
promotion, marketing, distribution, licensing or sale of the
TouchStar Software in violation of Government Controls or other
Legal Requirements.
(c) No Other Reseller shall have the right to use, copy, modify,
alter or Reverse Engineer any TouchStar Software whatsoever, and
Reseller shall take all necessary steps to ensure that all acts
or any Other Reseller related in any way to the TouchStar
Software are consistent with the terms and conditions of this
Agreement.
2.3 RESELLER'S OBLIGATION NOT TO COMPETE. Reseller shall not obtain the
TouchStar Software or Support Services (or any software or services
which compete with the TouchStar Software) for sale from any Entity
other than TouchStar or its authorized agents. Nothing contained in
this Agreement is intended to limit Reseller from responding to
unsolicited requests from Customers from outside of the Territory;
PROVIDED, HOWEVER, that Reseller shall (a) immediately notify
TouchStar upon receipt of any such request and (b) not seek customers
of TouchStar Software or Support Services in any other location other
than in the Territory. Reseller shall not sell TouchStar Software or
Support Services to any person or Entity outside the Territory or
within the Territory if, to Reseller's knowledge, any such person or
Entity intends to resell the TouchStar Software or Support Services
outside of the Territory. Reseller shall not import, promote,
distribute, license, market or sell any products in
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the Territory which directly compete with the TouchStar Software or
Support Services.
2.4 CHANGES IN TOUCHSTAR SOFTWARE AND SUPPORT SERVICES. TouchStar shall
have the right at any time and from time to time, in its sole
discretion, (a) to change the TouchStar Software or Support Services
included within the scope of this Agreement by providing written
notice to Reseller at least thirty (30) days prior to the date the
change becomes effective and (b) to change the design, capabilities or
other characteristics of the TouchStar Software or Support Services,
or discontinue the production or marketing of all or any portion of
the TouchStar Software or Support Services, without prior notice of
any kind. Upgrades and enhancements to the TouchStar Software or
Support Services shall automatically be deemed included as TouchStar
Software or Support Services, as applicable, unless TouchStar notifies
Reseller otherwise.
2.5 USE OF TOUCHSTAR SOFTWARE.
(a) TouchStar hereby grants to Reseller, with the additional right
to grant to Other Resellers who or which enter into an Other
Reseller Agreement, the nontransferable and nonexclusive right
and license to use one copy of the TouchStar Software as
necessary to demonstrate the TouchStar Software to potential
Customers in the Territory. Reseller shall not copy, modify,
alter, Reverse Engineer or transfer, electronically or
otherwise, any TouchStar Software.
(b) TouchStar reserves the absolute right, without providing notice
to Reseller, to include software code or other markings in the
TouchStar Software (and the Private Label Software) to assist
TouchStar in monitoring the compliance by Reseller and Other
Resellers with their respective obligations not to copy, modify,
alter, modify or Reverse Engineer the TouchStar Software. In
addition, in order to protect TouchStar's rights in and to the
TouchStar Software, THE TOUCHSTAR SOFTWARE MAY CONTAIN A
PROPRIETARY SCHEME THAT ALLOWS TOUCHSTAR TO DISABLE USE OF THE
TOUCHSTAR SOFTWARE BY RESELLER, ANY OTHER RESELLER, OR CUSTOMER.
TOUCHSTAR MAY DISABLE THE TOUCHSTAR SOFTWARE IN THE EVENT THAT
TOUCHSTAR DISCOVERS THAT RESELLER OR ANY OTHER RESELLER HAS, OR
HAS ATTEMPTED TO, COPY, MODIFY, ALTER OR REVERSE ENGINEER THE
TOUCHSTAR SOFTWARE.
2.6 LEADS FOR TOUCHSTAR SOFTWARE. Reseller shall solicit orders for
TouchStar Software from potential Customers and shall submit such
leads in writing to TouchStar (the "Registered Leads"). No Registered
Leads shall be binding on TouchStar until accepted by TouchStar, and
TouchStar reserves the right to reject any order or to cancel the same
or any part of it after acceptance, for credit or for any other reason
whatsoever deemed by TouchStar to be sufficient. Each Registered Lead
shall include: (a) the name, address and telephone number of the
Customer; (b) a list of the TouchStar Software and Support Services to
be provided; (c) the delivery address for
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the TouchStar Software, whether to Reseller or Customer; (d) the
proposed shipment date; and (e) a reference to this Agreement.
2.7 LEAD TIMES. Registered Leads shall be submitted at least thirty (30)
days prior to the requested shipping date for any TouchStar Software
or Support Services.
3. TOUCHSTAR'S DUTIES.
3.1 AVAILABILITY OF SUPPORT SERVICES. TouchStar shall use reasonable
commercial efforts to maintain or cause to be maintained the
availability of the TouchStar Software and Support Services to
Customers in the Territory.
3.2 MARKETING AND PROMOTIONAL LITERATURE. TouchStar shall provide to
Reseller marketing presentations and other literature prepared by
TouchStar in the ordinary course of business describing the TouchStar
Software and Support Services in order to assist Reseller in the
marketing of the Support Services in the Territory (the "Marketing
Materials"). The Marketing Materials will contain some or all of the
Trademarks. Reseller may include its trademarks, service marks or
other logos on the Marketing Materials; provided that Reseller may not
remove, replace or otherwise modify the Trademarks included on such
Marketing Materials.
3.3 LICENSES. TouchStar shall grant to Reseller those Licenses necessary
for Reseller to provide Support Services to Customers. TouchStar shall
charge to Reseller the cost incurred by TouchStar to obtain such
Licenses.
3.4 INSTALLATION.
(a) At the request and on behalf of Reseller and any Other Reseller,
TouchStar will install call center systems at Customer
locations; PROVIDED that (i) TouchStar and Reseller or any Other
Reseller, as applicable, agree in writing on the configuration
of such call center systems (the "Specifications") and (ii)
Reseller and any Other Reseller informs the Customer that
TouchStar is installing the call center system on behalf of such
Reseller or any Other Reseller.
(b) TouchStar will use reasonable commercial efforts to install the
call center system on behalf of Reseller or any Other Reseller
in a timely fashion. However, TouchStar and Reseller or any
Other Reseller recognize and agree that the installation of the
call center system depends on (i) TouchStar receiving certain
information and data from Customer, (ii) Customer providing on a
timely basis the necessary technical prerequisites for the
installation of the call center system, such as T-1 lines,
cabling and workstations (the "Technical Prerequisites"), and
(iii) the number and type of any change orders requested by the
Customer during the installation of the call center system.
TouchStar will not be responsible for any delays in the
installation of the call center system based on whole or in part
on (i) delays by the Customer in providing information and data
to TouchStar required for the installation of the call center
system, (ii) the delay or failure by the Customer
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to provide the Technical prerequisites, and (iii) any change
orders requested with regard to the call center system.
4. RESELLER'S DUTIES.
4.1 TECHNICAL AND SALES CAPABILITIES. Reseller acknowledges that the
proper marketing and support of the TouchStar Software and Support
Services requires substantial expertise and commitment. Reseller shall
at all times during the term of this Agreement, at its expense,
maintain the ability (a) to provide competent and adequate technical
assistance, service and support, (b) to explain in detail to its
Customers the features and capabilities of the Support Services, (c)
to assist Customers in determining which configuration of the Support
Services will best meet their particular needs and desires, and (d)
otherwise to carry out its obligations under this Agreement.
4.2 DISTRIBUTION OF TOUCHSTAR SOFTWARE AND SUPPORT SERVICES. Reseller
shall use its best endeavors to vigorously promote and resell the
TouchStar Software and Support Services within the Territory.
4.3 MARKETING PLAN. Reseller shall be responsible for developing and
implementing an annual marketing plan and system for reselling the
TouchStar Software and the Support Services (the "Annual Marketing
Plan"), which Annual Marketing Plan shall, prior to any use by
Reseller, be approved by TouchStar. The Annual Marketing Plan shall be
submitted to TouchStar no later than thirty (30) days after the
Effective Date.
4.4 MARKETING PRACTICES. Reseller shall at all times conduct its business
in a manner that reflects favorably on the TouchStar Software, the
Support Services and upon TouchStar's name, goodwill, and reputation.
Reseller shall demonstrate and otherwise represent the TouchStar
Software and the Support Services fairly in comparison with
competitive products and shall not make any false or misleading
comparisons or representations regarding the TouchStar Software or the
Support Services or any representations relating to the TouchStar
Software or the Support Services that are inconsistent with
TouchStar's product literature, or warranties. Reseller shall not
engage in any illegal, deceptive, misleading, or unethical practices
that may be detrimental to TouchStar.
4.5 PRODUCT LITERATURE. Subject to the provisions of Section 3.2, Reseller
shall have the right to use and distribute the Marketing Literature to
Customers. In the event Reseller desires to use, in connection with
sales of the Support Services, any literature, technical data, price
lists, promotional materials, or similar materials (including, for
example, any materials written in any language other than English)
other than the Marketing Materials, Reseller shall prepare such
materials at its expense. All such materials shall be submitted to
TouchStar for approval, and Reseller shall not use, in connection with
the sale of the Support Services, any materials that have not been
prepared or approved by TouchStar.
4.6 CUSTOMER ASSISTANCE. Reseller, at its expense, shall provide
assistance to its Customers in connection with the TouchStar Software
and Support Services,
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including installation assistance, direction regarding the operation
of the TouchStar Software and Support Services, and other similar
assistance.
4.7 SOFTWARE LICENSE AGREEMENT. Reseller and each Other Reseller shall
deliver to each Customer a copy of the License Agreement. TouchStar
shall have the right to modify the terms and conditions of the License
Agreement from time to time, in the sole discretion of TouchStar. Upon
request from TouchStar, Reseller and each Other Reseller shall deliver
the License Agreement prior to delivery of the TouchStar Software and
Support Services. Reseller shall provide TouchStar with the name and
address of each Customer who or which receives a copy of the License
Agreement, whether from Reseller or from an Other Reseller.
4.8 REPORTS, FORECASTS. As frequently as TouchStar reasonably requests
(but in no event less than quarterly), Reseller shall provide to
TouchStar written reports showing (a) Reseller's current Customers for
TouchStar Software and Support Services, (b) forecasts of Reseller's
anticipated orders for TouchStar Software and Support Services, and
(c) any other information regarding the TouchStar Software and Support
Services and the resale of TouchStar Software and Support Services
that TouchStar reasonably requests. All expenses associated with such
written reports shall be borne by Reseller.
4.9 NOTIFICATION. Reseller shall report promptly to TouchStar concerning
any market information that comes to Reseller's attention regarding
TouchStar, the TouchStar Software or the Support Services, including
information regarding TouchStar's market position and the
competitiveness of the TouchStar Software or the Support Services in
the marketplace. Reseller shall report promptly to TouchStar all
claimed or suspected defects in the TouchStar Software or Support
Services and shall notify TouchStar in writing of any claim or
proceeding involving the TouchStar Software or Support Services within
five (5) days after Reseller learns of the claim or proceeding.
4.10 COMPLIANCE WITH LAWS. Reseller and each Other Reseller shall conduct
its business in compliance with all applicable laws and regulations in
any way related to the Support Services, and performance of Reseller's
duties under this Agreement. Without limiting the generality of the
foregoing, Reseller shall:
(a) Comply with all applicable international, national, regional and
local laws and rules in and of the Territory now in effect or
hereafter enacted or issued relating to the TouchStar Software
and the Support Services;
(b) Comply with any requirement for the registration or recording of
this Agreement with any Governmental Body in the Territory;
(c) Give proper weight and consideration to the interests of
TouchStar in all dealings;
(d) Comply at all times, and cause persons under its control to
comply at all times, with any and all Government Controls and
other Legal Requirements;
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(e) Refrain from any action or omission which will cause TouchStar
to be in violation of any law of any jurisdiction in the
Territory or of any other Legal Requirement, including
Government Controls.
4.11 PERFORMANCE QUOTAS. Each Annual Marketing Plan developed by Reseller
during the term of this Agreement and any extension thereof shall
contain quotas mutually agreed between TouchStar and Reseller for the
sale by Reseller of TouchStar Software and Support Services in the
Territory for the year to which such Annual Marketing Plan relates
(the "Quotas"). Reseller acknowledges that meeting the Quotas is an
essential element of this Agreement and that this Agreement may be
terminated by TouchStar if, in TouchStar's reasonable opinion,
Reseller will not meet the Quotas during the Term or any extension
thereof.
4.12 INSURANCE. At a minimum, Reseller will subscribe for and maintain
during the Term and for a period of two (2) years thereafter,
commercial general liability insurance and errors and omission
insurance in minimum amounts of Two Million Dollars (US$2,000,000) per
occurrence. Reseller will cause its insurance agent or broker to issue
and deliver to TouchStar certified copies of certificates evidencing
that insurance coverage of the required types and limits are in full
force and effect. Reseller will ensure that any persons or entities
engaged by or employed by it will carry and maintain such insurance
coverage. Each policy will include a provision requiring notice to the
other party at least thirty (30) days prior to any cancellation,
non-renewal, or material modification of the policy and will require
that each policy will name TouchStar as an additional insured.
4.13 ANCILLARY SOFTWARE. Reseller shall have the right to develop ancillary
software compatible with the TouchStar Software for the use of its
Customers, including, but not limited to translations of the TouchStar
Software for use in languages other than English (the "Ancillary
Software"). In the event Reseller decides to develop Ancillary
Software, Reseller shall give TouchStar thirty (30) days notice of its
intent to develop the Ancillary Software. TouchStar, at its sole
discretion may decide to assist with the development of the Ancillary
Software. TouchStar shall own all Ancillary Software.
4.14 TECHNICAL PREREQUISITES. In the event that TouchStar installs call
center systems on behalf of Reseller, Reseller shall provide to
TouchStar any and all information on Technical Prerequisites
reasonably requested by TouchStar in order to assist TouchStar in the
installation of the applicable call center system.
4.15 COVENANT NOT TO SOLICIT. During the Term, and for a period of one year
following the termination or expiration of this Agreement, Reseller
will not, directly or indirectly, make an offer of employment to any
current employee of TouchStar or otherwise encourage or solicit any
current employee of TouchStar to leave the employ of TouchStar for any
reason, or to devote less than all of such employee's efforts to the
affairs of TouchStar, without (a) the prior written agreement of
TouchStar, which TouchStar may grant in its sole discretion, and (b)
the payment by Reseller to TouchStar of a mutually agreeable severance
fee. Reseller will not make an offer of
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employment to any former employee of TouchStar for a period of four
(4) months after such employee leaves the employ of TouchStar. In the
event that a court of competent jurisdiction refuses to enforce all or
any portion of this Section 4.15, then such unenforceable portion will
be eliminated or modified, but only to the extent necessary to permit
the remaining portion of this Section 4.15 to be enforced. In the
event that any provisions of this Section 4.15 are deemed to exceed
the time, geographic or scope limitations permitted by applicable law,
such provisions will be reformed to the maximum time, geographic or
scope limitations, as the case may be, permitted by applicable law.
5. TECHNICAL ASSISTANCE.
5.1 TOUCHSTAR SOFTWARE INFORMATION. TouchStar shall make available to
Reseller in English such technical information relating to the
TouchStar Software as it makes available to its other Resellers
generally. Reseller is not entitled to receive any source code or
other technical information relating to the TouchStar Software.
5.2 UPGRADE OF RESELLER'S CUSTOMERS. Reseller shall use reasonable
commercial efforts to upgrade the software used by its Customers prior
to the Effective Date to the TouchStar Software. At Reseller's
request, TouchStar shall provide to Reseller and its employees
assistance relating to the upgrade of software used by Reseller's
Customers as of the Effective Date.
5.3 ADDITIONAL ASSISTANCE. TouchStar shall provide to Reseller, the Other
Resellers, and its and their employees assistance relating to the
TouchStar Software as reasonably requested by Reseller, but in any
event in an amount not to exceed twenty (20) hours of assistance per
month. In the event TouchStar provides assistance to Reseller related
to technical aspects of the TouchStar Software or related to the
preparation of literature, technical aspects of the TouchStar Software
or related to the preparation of literature, technical materials or
promotional materials, Reseller shall promptly reimburse TouchStar for
any out-of-pocket expenses incurred by TouchStar in connection with
rendering such assistance, including all travel expenses, lodging, and
meals. TouchStar may also charge reasonably hourly or per diem rates
for some or all of the services rendered under this provision,
provided that TouchStar notifies Reseller before the services are
rendered of the rates that will apply to the services. Nothing in this
Section 5.3 shall be construed to obligate TouchStar to provide
assistance of any kind to Reseller. In the event TouchStar agrees to
provide assistance, the assistance shall at all times be subject to
the availability of TouchStar's personnel.
6. TERMS AND CONDITIONS OF SALE.
6.1 PRICE AND PAYMENT.
(a) TouchStar shall sell the TouchStar Software and Support
Services, and provide for the installation of call center
systems, for the Fees. The Fees shall be valid only for
TouchStar Software and Support Services sold by Reseller or
Other Resellers to Customers, and the installation of call
center systems on
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behalf of Reseller and any Other Resellers at Customer
locations, in the Territory during the Term. TouchStar shall
have the right at any time and from time to time to change the
Fees by providing to Reseller written notice at least thirty
(30) days prior to the date the change becomes effective.
TouchStar may change the Fees from time to time in its sole
discretion; PROVIDED, HOWEVER, that new Fees shall not apply to
any agreement to provide Support Services accepted by TouchStar
before Reseller receives notice of the change.
(b) TouchStar will invoice Reseller for payment of the Fee incurred
within ten (10) days after the end of each billable month.
Payment of the Fees shall be due and payable within ten (10)
days of the date of the invoice. All or any portion of the Fees
not paid when due shall bear interest at the rate of one and
one-half (1.5%) per month, calculated from the date such payment
is due until the date on which such payment is made, inclusive;
PROVIDED, HOWEVER, that if such interest rate exceeds the amount
allowed by applicable law, then the interest rate shall be
adjusted to reflect the maximum amount allowed by such
applicable law.
6.2 ASSESSMENTS. Reseller shall pay when due, and indemnify and hold
TouchStar harmless from any and all taxes, value added taxes, general
service taxes, duties, assessments and other fees associated with the
providing by Reseller of the TouchStar Software and the Support
Services, and the installation of call center systems on behalf of
Reseller, to Customers in the Territory pursuant to this Agreement
("Assessments"). If Reseller fails to pay any Assessments when due,
and TouchStar receives any Assessment from any Governmental Body, then
TouchStar shall give written notice of the Assessment to Reseller.
Failure by Reseller immediately to pay such Assessment may, in
TouchStar's sole discretion, result in the immediate termination of
this Agreement.
6.3 OTHER TERMS AND CONDITIONS. The terms and conditions of this Agreement
and of the applicable TouchStar invoice or confirmation shall apply to
all TouchStar Software and Support Services, and the installation of
call center systems, provided by TouchStar under this Agreement. Terms
in Reseller's purchase orders and other printed forms shall not apply
to any order, notwithstanding TouchStar's acknowledgment or acceptance
of the order. In the event of any conflict between the terms of this
Agreement and any standard forms of either TouchStar or Reseller, the
terms of this Agreement shall govern. Reseller shall not, and is not
authorized to, make any warranties as to the TouchStar Software and
Support Services, or with regard to the installation of call center
systems by TouchStar, and any warranties exceeding the scope of
TouchStar warranties shall be null and void, subject only to contrary
legal requirements applicable to the Territory.
6.4 LIMITED WARRANTY. TouchStar warrants that (a) with regard to the
TouchStar Software, (i) TouchStar will convey good title to the
TouchStar Software free and clear of any claims, liens, security
agreements or other encumbrances and (ii) for a period of ninety (90)
days after delivery, the TouchStar Software will perform in all
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material respects with the specifications contained in TouchStar's
technical literature with regard to the TouchStar Software, (b) the
Support Services will be provided in a good and workmanlike manner
consistent with industry practices, and (c) with regard to call center
systems installed by TouchStar, (i) TouchStar will convey good title
to the call center system free and clear of any claims, liens,
security agreements or other encumbrances and (ii) the call center
system will be installed in a good and workmanlike manner
substantially in conformance with the Specifications. EXCEPT AS
PROVIDED IN THIS SECTION 6.4, TOUCHSTAR DOES NOT WARRANT THE TOUCHSTAR
SOFTWARE OR SUPPORT SERVICES, OR THE INSTALLATION OF ANY CALL CENTER
SYSTEM, TO RESELLER, ANY OTHER RESELLER OR ANY CUSTOMER. TOUCHSTAR
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATING THERETO.
TOUCHSTAR IS UNAWARE OF THE USE OF ANY CALL CENTER SYSTEM INSTALLED BY
TOUCHSTAR. TOUCHSTAR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND
WHATSOEVER WITH REGARD TO THE USE OF ANY CALL CENTER SYSTEM, INCLUIDNG
WHETHER THE USE OF THE CALL CENTER SYSTEM CONFORMS TO APPLICABLE
FEDERAL, STATE AND LOCAL LAWS. RESELLER BEARS SOLE RESPONSIBILITY TO
DETERMINE WHETHER THE USE OF A CALL CENTER SYSTEM BY A CUSTOMER
COMPLIES WITH APPLICABLE FEDERAL STATE AND LOCAL LAWS. SHOULD
APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR
IMPLIED WARRANTIES, THEN TOUCHSTAR HEREBY GRANTS THE MINIMUM EXPRESS
AND IMPLIED WARRANTIES REQUIRED BY SUCH APPLICABLE LAW.
6.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL TOUCHSTAR BE LIABLE TO
RESELLER, ANY OTHER RESELLER OR ANY CUSTOMER BY REASON OF ANY
REPRESENTATION OR IMPLIED WARRANTY, CONDITION, OTHER TERM, OR ANY DUTY
AT COMMON LAW, OR UNDER THE TERMS OF THIS AGREEMENT, FOR ANY DIRECT,
INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE (WHETHER
FOR LOSS OF PROFIT OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH
ANY ACT OR OMISSION OF TOUCHSTAR RELATING TO THE DEVELOPMENT,
MANUFACTURE, OR SUPPLY OF THE TOUCHSTAR SOFTWARE, THE SERVICES, OR THE
INSTALLATION OF ANY CALL CENTER SYSTEM, THEIR RESALE BY RESELLER, OR
THEIR USE BY ANY CUSTOMER OR OTHER END USER. TOUCHSTAR SHALL NOT BE
LIABLE FOR THE PROVISION OF SERVICES BY RESELLER OR ANY OTHER
RESELLER, OR ANY ALTERATIONS OR MODIFICATIONS BY RESELLER TO THE
TOUCHSTAR SOFTWARE OR ANY CALL CENTER SYSTEM. THE SOLE OBLIGATION OF
TOUCHSTAR, AND THE SOLE REMEDY OF RESELLER OR ANY OTHER RESELLER,
UNDER THIS AGREEMENT SHALL BE (A) WITH REGARD TO THE TOUCHSTAR
SOFTWARE OR ANY CALL CENTER SYSTEM, THE REPLACEMENT OR REPAIR OF THE
TOUCHSTAR SOFTWARE OR THE CALL CENTER SYSTEM OR, AT THE OPTION OF
TOUCHSTAR, THE RETURN OF THE PURCHASE PRICE PAID BY RESELLER
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FOR SUCH TOUCHSTAR SOFTWARE OR CALL CENTER SYSTEM AND (B) WITH REGARD
TO SERVICES, THE REPERFORMANCE OF THE SERVICES.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 OWNERSHIP OF INTELLECTUAL PROPERTY.
(a) Reseller acknowledges that TouchStar owns or has rights to
license the intellectual property and proprietary rights in, to,
and relating to the TouchStar Software and Support Services,
including, but not limited to, the Intellectual Property Rights.
(b) To the extent that Reseller or any Other Reseller is deemed to
be the owner of all or any portion of the TouchStar Software,
any Intellectual Property Rights of TouchStar or any Ancillary
Software, or any improvements or intellectual property rights
related thereto pursuant to applicable law, Reseller (i) hereby
assigns exclusively to TouchStar all rights of Reseller in and
to such Software and any improvements and intellectual property
rights related thereto royalty-free and exclusively and (ii)
shall include in any Other Reseller Agreement provision by which
any Other Reseller grants to TouchStar an exclusive, perpetual,
irrevocable, royalty-free assignment of all deemed rights of
such Other Reseller in and to such TouchStar Software, Ancillary
Software and Intellectual Property Rights. Reseller shall
execute, and shall cause any Other Reseller to execute, any such
documents and instruments necessary to vest in TouchStar the
deemed ownership rights of Reseller or Other Reseller in and to
any TouchStar Software, Ancillary Software or Intellectual
Property Rights, and any improvements or intellectual property
rights related thereto.
7.2 PRIVATE LABELING. At the request of Reseller, TouchStar shall use
reasonable commercial efforts to provide a private label version of
the TouchStar Software (the "Private Label Software") using logos,
trademarks, trade names or service marks owned by Reseller or to which
Reseller has exclusive rights (the "Reseller Marks"). Reseller
represents and warrants that Reseller has valid legal ownership and
other exclusive rights to the Reseller Marks. Reseller grants to
TouchStar a right and license to use the Reseller Marks in the
preparation of the Private Label Software. Reseller shall have the
right to promote, market, distribute and resell the Private Label
Software pursuant to the terms and conditions of this Agreement.
Reseller shall reimburse TouchStar for all costs and expenses incurred
by TouchStar in making the Private Label Software available to
Reseller. Except for the Reseller Marks, TouchStar shall retain all
right, title and interest in and to the Private Label Software.
Reseller shall indemnify, defend and hold harmless TouchStar, its
Affiliates, and its and their respective directors, officers,
employees, agents and representatives from and against any and all
claims, suits, proceedings, costs and expenses arising out of or
relating to the use by TouchStar of the Reseller Marks. TouchStar may
include in the Private Label Software a legend to the effect that
TouchStar owns the Private Label Software.
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7.3 USE OF TOUCHSTAR INTELLECTUAL PROPERTY RIGHTS. Reseller shall use the
Intellectual Property Rights only to refer to the TouchStar Software
in accordance with TouchStar's policies as announced from time to
time. In particular, and without limitation, Reseller shall not (a)
remove Trademarks from any Marketing Materials, (b) include any
Trademarks or other Intellectual Property Rights in any promotional
literature prepared by Reseller without the express written consent of
TouchStar; (c) dispute or deny the validity of any of the Intellectual
Property Rights (including any attempt to register or record the same
in any jurisdiction), (d) do any act or omit to do any act whereby
TouchStar's right, title, and interest in the Intellectual Property
Rights may become invalidated or otherwise adversely affected, (e)
alter, remove, destroy, conceal, or tamper with any Trademarks, (f)
use any Intellectual Property Rights in any way which might prejudice
their distinctiveness or validity or goodwill of TouchStar therein,
(g) use in relation to Support Services any patents, copyrights,
trademarks, or trade names other than the Intellectual Property Rights
without TouchStar's prior written consent, or (h) use in the Territory
any trademarks or trade names so resembling any Trademark of TouchStar
as to be likely to cause confusion or deception. Upon expiration or
termination of this Agreement, Reseller shall immediately cease all
use of the Intellectual Property Rights and shall not thereafter use
any of them or any intellectual property rights confusingly similar to
the Intellectual Property Rights.
7.4 USE OF CONFIDENTIAL INFORMATION. Reseller acknowledges that it may
receive, during the term of this Agreement, certain Confidential
Information belonging to TouchStar. Reseller recognizes that such
Confidential Information is proprietary to TouchStar and very
valuable, having involved the expenditure of substantial amounts of
money and the use of skilled experts over a long period of time.
Reseller shall hold TouchStar's Confidential Information in strict
confidence and shall not use or disclose any Confidential Information,
or permit any person to examine or copy any Confidential Information,
regardless of the manner in which Reseller gained access to it, except
as necessary for the performance of Reseller's obligations under this
Agreement.
7.5 PROTECTION OF CONFIDENTIAL INFORMATION. Reseller shall protect
TouchStar's Confidential Information with the utmost care and shall
cause its employees, agents, and independent contractors having access
to such Confidential Information to sign confidentiality agreements
requiring them to comply with all the terms of this Article 7.
7.6 INFRINGEMENT CLAIMS. Reseller shall promptly notify TouchStar of any
known or suspected breach of the Intellectual Property Rights and
shall cooperate (without charge for personal time incurred) in
TouchStar's efforts to protect such TouchStar Intellectual Property
Rights. TouchStar shall defend any action brought against Reseller
based on an allegation that any TouchStar Software infringes a United
States or foreign Patent, Copyright, or Trademark, and TouchStar shall
pay all costs and damages made in settlement or awarded as a result of
any such action. If a final injunction shall be obtained in any such
action restraining use of the TouchStar Software by any Customer, or
if TouchStar believes that any TouchStar Software is
16
likely to become the subject of a claim of infringement, TouchStar
shall, at its option and at its expense, (a) procure for Reseller's
Customer the right to continue using the TouchStar Software, (b)
replace or modify the TouchStar Software so that it becomes
non-infringing, or (c) repurchase the TouchStar Software on a
depreciated (five-year straight line) basis. Notwithstanding the
foregoing, TouchStar shall have no obligation with respect to any
action brought against Reseller based on an allegation of Patent,
Copyright, or Trademark infringement unless TouchStar is promptly
notified by Reseller in writing of such action and is allowed complete
control of the defense of such action and all negotiations for its
settlement or compromise. This Section 7.6 states TouchStar's entire
liability with respect to infringement of Patents, Copyrights, or
Trademarks.
7.7 EQUITABLE REMEDIES. Reseller acknowledges that TouchStar will be
irreparably harmed by any breach of the provisions of this Section 7.
Therefore, in addition to any other remedies that TouchStar may have,
TouchStar shall be entitled to an injunction, issued by any court of
competent jurisdiction, wherever located, restraining any violation of
this Section 7 or specified performance if applicable. Reseller hereby
waives, with respect to any future dispute related to this Section 7,
any defense based on the argument that TouchStar will not be
irreparably harmed by a breach or that TouchStar has available to it
an adequate remedy for damages.
7.8 RESELLER'S OBLIGATIONS AS TO CONFIDENTIAL INFORMATION AFTER
TERMINATION. All obligations of Reseller relating to TouchStar
Confidential Information shall survive the expiration or termination
of this Agreement. Promptly upon expiration or termination of this
Agreement, Reseller shall not have a right of retention with respect
to, and shall return to TouchStar, all materials in Reseller's
possession or control that represent or contain Confidential
Information, including all memoranda, computer programs, documents,
notes, and every other medium. Reseller shall not retain for its own
use or the use of any third party any such materials or any copies
thereof.
8. TERM AND TERMINATION.
8.1 TERM OF AGREEMENT. This Agreement shall continue in force for a term
of twelve (12) months from the Effective Date, unless terminated
earlier under the provisions of this Article 8 (the "Term"); PROVIDED
that TouchStar shall have the right to terminate this Agreement at any
time after the Effective Date upon not less than fifteen (15) days'
prior written notice to Reseller. Prior to the end of the Term, each
of TouchStar and Reseller may notify the other if it desires to
negotiate a further agreement by written request received at least
ninety (90) days in advance of the termination of this Agreement. If
both parties desire to negotiate a further agreement, they may
consider the terms of this Agreement in coming to an understanding.
Nothing in this Agreement shall be construed to obligate either party
to renew or extend the term of this Agreement. Renewals for additional
terms, if any, shall not cause this Agreement to be construed as an
agreement of indefinite duration.
8.2 TERMINATION AT TOUCHSTAR OPTION. TouchStar may terminate this
Agreement upon the occurrence and continuation of any of the following
events, with the understanding
17
that, if no cure period specifically is stated with regard to an
event, then no cure period for such event applies:
(a) Reseller fails to make any payment of Fees due to TouchStar
under this Agreement and such failure remains unremedied for a
period of ten (10) days;
(b) Reseller breaches any of its other obligations under this
Agreement and such breach remains unremedied for a period of
thirty (30) days;
(c) Reseller or any Other Reseller takes any action to Reverse
Engineer the TouchStar Software;
(d) Reseller fails to comply with applicable Legal Requirements,
including Government Controls;
(e) Reseller fails to reach the Quotas established by the parties;
(f) Reseller repeatedly breaches any of its obligations under this
Agreement, even though Reseller remedies each such breach within
the applicable time period specified above;
(g) Reseller fails to execute an Other Reseller Agreement with any
Other Reseller;
(h) Reseller or any Other Reseller fails to deliver a License
Agreement to a Customer;
(i) Reseller fails to indemnify TouchStar, its Affiliates and its
and their respective directors, officers, employees, agents and
representatives for any claims related to or arising under any
Other Reseller Agreement or the use by TouchStar of the Reseller
Marks;
(j) Reseller is negligent in the fulfillment of its obligations to
market and resell the TouchStar Software;
(k) Reseller breaches any of its obligations relating to the
Intellectual Property Rights or Confidential Information;
(l) Reseller, any of Reseller's officers, directors, or
shareholders, or any entity controlling, controlled by or under
common control with Reseller promotes, sells, or offers for sale
any product or other item that is, in TouchStar's reasonable
opinion, competitive with or capable of being substituted for
any of the TouchStar Software; or Reseller engages in overt or
subvert forms of boycott of the TouchStar Software, including
the offer for sale of any product or other item that is, in
TouchStar's reasonable opinion, competitive with or capable of
being substituted for any of the TouchStar Software;
(m) In the event of a sale, conveyance, transfer or other
disposition, in any transaction or series of transactions that
results, directly or indirectly, in a
18
change of fifty percent (50%) or more of the aggregate voting
power in Reseller as such existed on and as of the Effective
Date;
(n) Reseller is merged or consolidated with any other entity or
there is a substantial change in the management or control of
Reseller; or
(o) Reseller ceases to function as a going concern or ceases to
conduct its operations in the normal course of business or any
of its directors, shareholders, or officers is convicted of a
criminal offense or engages in any other act that in TouchStar's
opinion could have an adverse effect upon TouchStar's reputation
and goodwill.
8.3 SUSPENSION OF TOUCHSTAR OBLIGATIONS. Immediately upon the occurrence
of any breach by Reseller of any of its obligations under this
Agreement or upon the occurrence of any event or circumstance
identified in Section 7.3 of this Agreement, all of TouchStar's
obligations to provide Support Services shall be suspended and such
obligations shall remain suspended until the event or circumstance
giving rise to the suspension has been corrected to TouchStar's
satisfaction.
8.4 SURVIVAL OF RESELLER OBLIGATIONS. The termination of this Agreement
shall not terminate or affect the continuing binding obligations
imposed by Sections 4.4, 4.7, 4.10, 4.12, and 5, 6, 7, 8, 9 and 10
this Agreement. It is understood and agreed that the obligations of
Reseller set forth in such provisions may be specifically enforced by
TouchStar in any court of competent jurisdiction, wherever located,
notwithstanding the provisions of Section 10.12(b) hereof, since no
other adequate remedy may exist in the event of a breach or threatened
breach by Reseller of any such provisions.
9. DUTIES UPON TERMINATION.
In addition to any other provision of this Agreement which is
designated in Section 8.6 as a provision surviving termination, the following
shall apply:
9.1 CUSTOMER AGREEMENTS.
(a) In the event that (i) TouchStar terminates this Agreement in
accordance with any one or more of the provisions of Section 8.2
or (ii) Reseller elects not to enter into a new agreement with
TouchStar pursuant to Section 8.1, all Customer Agreements with
Customers shall be transferred by Reseller to TouchStar.
(b) In the event that (i) TouchStar elects not to enter into a new
agreement with Reseller pursuant to Section 8.2 or (ii) Reseller
terminates this Agreement in accordance with the provisions of
Section 8.3, Reseller shall retain all Customer Agreements with
Customers and TouchStar shall continue to provide Support
Services under such Customer Agreements for the remaining term
of such Customer Agreements.
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9.2 REFERRALS BY RESELLER. In the event that (a) TouchStar terminates this
Agreement in accordance with any one or more of the provisions of
Section 8.2 or (b) Reseller elects not to enter into a new agreement
with TouchStar pursuant to Section 8.1, Reseller shall refer to
TouchStar or TouchStar's designee all inquiries and orders received by
Reseller pertaining to the purchase of Support Services.
9.3 PAYMENT OF FEES.
(a) In the event that this Agreement terminates or expires pursuant
to Section 8.1(a), Reseller immediately shall pay to TouchStar
all Fees outstanding on and as of the date of termination or
expiration of this Agreement.
(b) In the event that this Agreement terminates or expires pursuant
to Section 8.1(b), Reseller shall continue to pay all Fees in
accordance with the provisions of Section 6.2.
9.4 INTELLECTUAL PROPERTY RIGHTS. Reseller immediately shall stop the use
of Marketing Materials and Intellectual Property Rights, and shall
return any unused Marketing Materials and all physical media upon
which Intellectual Property Rights are contained by TouchStar.
9.5 SHIPMENTS FOLLOWING NOTICE OF TERMINATION. The expiration or
termination of this Agreement shall not relieve TouchStar of its
continuing obligation to ship TouchStar Software pursuant to any
purchase orders accepted by TouchStar prior to the notice of
termination, nor shall it relieve Reseller of its continuing
obligation to accept and pay for such TouchStar Software; PROVIDED,
HOWEVER, that with respect to all TouchStar Software shipped after any
notice of termination, Reseller shall make payment prior to shipment
on terms and conditions and by means satisfactory to TouchStar,
notwithstanding any credit terms that may have been available to
Reseller prior to such notice of termination.
9.6 LIABILITY UPON TERMINATION. TouchStar shall have no liability to
Reseller or any Other Reseller by reason of the termination or
expiration of this Agreement for compensation, reimbursement, or
damages of any kind, including any loss of prospective profits on
anticipated sales, loss of goodwill, or investments made in reliance
on this Agreement. Reseller acknowledges that it has received no
assurances from TouchStar that its business relationship with
TouchStar will continue beyond the term established in this Agreement,
or that it will obtain any anticipated amounts of profits in
connection with this Agreement, or that it will recoup its investment
in the promotion of the TouchStar Software. Reseller also acknowledges
that Reseller's failure to reach the Quotas will have a significant
adverse impact on TouchStar's goodwill in the Territory, and that if
Reseller is terminated because of failure to meet the Quotas, then
Reseller will not be entitled to compensation of any kind (beyond the
notice period set forth in this Agreement), since the damage to
TouchStar's goodwill is likely to be at least as great as any losses
Reseller might incur as a result of the termination. However, these
provisions apply only to damages that are attributable to the
expiration or termination of this Agreement and shall not affect any
amount due
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under this Agreement or the right of either party to seek damages
directly attributable to any breach.
10. GENERAL PROVISIONS.
10.1 RELATIONSHIP BETWEEN THE PARTIES. Neither party to this Agreement and
none of their respective agents, employees, representatives or
independent contractors shall (a) be considered an agent, employee, or
representative of the other party for any purpose whatsoever, (b) have
any authority to make any agreement or commitment for the other party
or to incur liability or obligation in the other party's name or on
its behalf, or (c) represent to third parties that any of them has any
right so to bind the other party hereto, it being intended that each
party shall remain an independent contractor responsible only for its
own actions. Nothing contained in this Agreement shall be construed or
interpreted as creating an agency, partnership, or joint venture
relationship between the parties.
10.2 RESELLER REPRESENTATION, WARRANTY AND UNDERTAKING. Reseller (a)
represents and warrants that (i) it is a corporation duly organized
and existing under the laws of the jurisdiction of its incorporation
with all necessary corporate power and authority to execute, deliver,
and perform its obligations under this Agreement, and that the
execution, delivery, and performance of its obligations under this
Agreement have been duly authorized by all requisite corporate action
of Reseller and all Legal Requirements of Governmental Bodies, (ii) it
has the requisite skill and knowledge necessary to perform its
obligations under this Agreement, (iii) that it currently is not in
violation of any Legal Requirements, and (iv) no current employee or
shareholder of TouchStar has an ownership interest in Reseller or any
affiliate or related entity of Reseller; and (b) covenants that,
during the Term, it (i) shall use its best endeavors to maintain its
corporate identity and remain in existence under the organizing laws
of its jurisdiction and (ii) promptly notify TouchStar in the event
that any employee or shareholder of TouchStar obtains an ownership
interest in Reseller or any affiliate or related entity of Reseller.
10.3 NOTICES. Without precluding any other sufficient form of notice, all
notices, demands, or other communications under this Agreement shall
be deemed given if sent by registered airmail, facsimile, hand
delivery, or express courier to the address of the party as set out in
this Agreement or to another address specified by the party. All
notices, demands, and other communications in connection with this
Agreement shall be written in the English language.
10.4 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties pertaining to its subject matter, and it
supersedes any and all written or oral agreements previously existing
between the parties with respect to such subject matter. No
supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by both parties.
10.5 WAIVER. Either party's failure to insist on strict performance of any
provision of this Agreement shall not be deemed a waiver of any of its
rights or remedies, nor shall it relieve the other party from
performing any subsequent obligation strictly in
21
accordance with the terms of this Agreement. No waiver shall be
effective unless it is in writing and signed by the party against whom
enforcement is sought. Such waiver shall be limited to provisions of
this Agreement specifically referred to therein and shall not be
deemed a waiver of any other provision. No waiver shall constitute a
continuing waiver unless the writing states otherwise.
10.6 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of,
and shall be binding upon, the respective heirs, legal
representatives, successors, and assigns of each of the parties.
10.7 ASSIGNMENT.
(a) TouchStar may assign this Agreement and the rights and
responsibilities under this Agreement to an Affiliate upon
written notice to Reseller.
(b) Except for the rights of TouchStar under Section 10.7(a), this
Agreement may not be assigned by either party without the prior
written consent of the other. Any attempted assignment in
violation of this provision shall be void and shall be deemed a
breach of this Agreement.
10.8 INDEMNIFICATION. Reseller shall be solely responsible for, and shall
indemnify TouchStar, its officers, directors, employees, and agents
against, and hold each of them harmless from, any and all claims
(including without limitation, all damages (whether direct, indirect,
incidental, criminal, special, or punitive), losses, liabilities,
expenses, costs, and attorneys' fees related to such claims) resulting
from (a) the negligent or willful failure of Reseller to comply with
its obligations hereunder, (b) the acts or omissions of Reseller, its
officers, directors, employees, or agents during the term of this
Agreement or thereafter, (c) any express or implied representation or
warranty made by Reseller or any of its officers, directors, employees
or agents with regard to the TouchStar Software or the Support
Services not contained in written literature of TouchStar or
specifically authorized by TouchStar in writing, and (c) the
installation of a call center system by TouchStar on behalf of
Reseller or any Other Reseller and the use of the TouchStar Software
in the operation of a call center system, unless caused by the gross
negligence or willful misconduct of TouchStar.
10.9 SECTION HEADINGS; CONSTRUCTION. The section headings in this Agreement
are included for convenience only and shall not be deemed to limit or
otherwise affect the construction of any of its provisions. The word
"including" shall be ascribed a non-exclusive meaning unless followed
by the word "only."
10.10 SEVERABILITY. In the event that any of the provisions of this
Agreement shall be held by a court, arbitral panel, or tribunal of
competent jurisdiction to be unenforceable, such provision will be
enforced to the maximum extent permissible and the remaining portions
of this Agreement shall remain in full force and effect.
10.11 PARTIES IN INTEREST. Nothing in this Agreement is intended to confer
any rights or remedies on any persons other than the parties to it.
This Agreement shall not be construed to relieve or discharge any
obligations or liabilities of third persons, nor
22
shall it be construed to give third persons any right of subrogation
or action over against any party to this Agreement.
10.12 GOVERNING LAW AND ARBITRATION.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO,
UNITED STATES, WITHOUT REGARD TO ITS PRINCIPLES REGARDING
CONFLICT OF LAWS.
(b) ARBITRATION. Any dispute arising out of or relating to this
Agreement, including, without limitation, the interpretation of
any provision of this Agreement or the breach, termination or
invalidity of this Agreement that cannot reasonably be resolved
by the Parties shall be settled exclusively and finally by
binding arbitration under the International Arbitration Rules of
the American Arbitration Association in effect on and as of the
date of this Agreement (the "AAA Rules"), except as such AAA
Rules are modified pursuant to this Section 10.12(b).
(i) The arbitration shall be conducted before a panel of
three (3) arbitrators, each of whom shall be fluent in
English and shall have knowledge in the call center
industry. TouchStar shall appoint one (1) arbitrator,
Customer shall appoint one (1) arbitrator, and the third
arbitrator shall be selected by the two (2) arbitrators
so appointed; PROVIDED, HOWEVER, that if the two (2)
arbitrators appointed by the parties fail to select the
third arbitrator within thirty (30) days after the date
on which the last of such two (2) arbitrators are
appointed, then the third arbitrator shall be appointed
by the administrator in accordance with the AAA Rules.
The third arbitrator, regardless of how selected, shall
chair the arbitration panel.
(ii) Once the arbitrators are impaneled, if (A) an arbitrator
withdraws after a challenge, (B) the administrator
sustains a challenge and removes an arbitrator, (C) an
arbitrator dies, or (D) an arbitrator otherwise resigns
or is removed, then the party which appointed such
arbitrator shall appoint a replacement arbitrator within
thirty (30) days in accordance with the procedures set
forth in Section 10.12(b)(i).
(iii) The arbitration shall be conducted in Denver, Colorado,
United States. The arbitration shall be conducted in
English; PROVIDED, that either party, at its cost, may
provide for the simultaneous translation of the
arbitration into a language other than English.
(iv) No less than thirty (30) days prior to the date on which
the arbitration proceeding is to begin, each party shall
submit to the other party the documents, in English, and
list of witnesses it
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intends to use in the arbitration. At any oral hearing
of evidence in connection with the arbitration, each
party or its legal counsel shall have the right to
examine witnesses and to cross-examine the witnesses of
the opposing party.
(v) The arbitrators shall apply the substantive law of the
State of Colorado to any decision issued by the
arbitration panel, and the arbitrators shall be so
instructed. The arbitrators shall issue a written
opinion stating the findings of fact and the conclusions
of law upon which the decision is based. The decision of
the arbitrators shall be final and binding. Judgment on
such award may be entered in any court of appropriate
jurisdiction, or application may be made to that court
for a judicial acceptance of the award and an order of
enforcement, as the party seeking to enforce that award
may elect. Any arbitration award for money damages shall
be in Dollars. Other than pursuant to this Section
10.12(b)(v), the arbitration award shall not include any
indirect, incidental, special, consequential, or
punitive damages and the arbitrators shall be so
instructed.
(vi) Any arbitration award pursuant to this Section 10.12(b)
shall be subject to the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
of 1958.
(c) JURISDICTION AND VENUE FOR INTERIM RELIEF. Notwithstanding the
provisions of Section 10.12(b), each party shall have the right
to bring an action in a court of competent jurisdiction of any
equitable or other relief as may be necessary to protect the
rights of such party under this Agreement.
(d) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ITS INTERPRETATIONS.
10.13 GOVERNING LANGUAGE. The governing language of this Agreement shall be
English. If this Agreement is translated into a language other than
English, then the English version shall prevail.
10.14 EXCLUSION OF UNITED NATIONS CONVENTION. The United Nations Convention
on Contracts for the International Sale of Goods is hereby excluded
from application to this Agreement.
10.15 FORCE MAJEURE. Neither party shall be responsible for any failure to
perform due to unforeseen circumstances or to causes beyond that
party's control, including but not limited to acts of God, war, riot,
acts of terrorism, embargoes, acts of civil or military authorities,
compliance with governmental laws, rules or regulations, failure of
telecommunications connectivity beyond the reasonable control of the
parties,
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accidents, strikes, labor disputes, or shortages. Failure to perform
shall be excused during the continuance of such circumstances, but
this Agreement shall otherwise remain in effect.
10.16 PUBLICITY; DISCLOSURES. Except as expressly provided herein and except
to the extent required by applicable law, no news releases or other
public disclosures relating to this Agreement, its existence or its
subject matter, including without limitation, photographs, public
announcements or confirmation of the same, shall be made by either
party without the prior written approval of the other party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS OF THE FOREGOING, the parties have caused this Agreement to
be signed by their respective duly authorized representatives all as of the
Effective Date.
WORLDWIDE STRATEGIES INC. TOUCHSTAR SOFTWARE CORPORATION
By: /s/ XXXXX X.X. XXXXXXX By: /s/ XXXXX XXXXXXXXX
---------------------------- -----------------------------
Title: PRESIDENT Title: CFO
------------------------- ---------------------------
Date: SEPT 14-2005 Date: 9/15/5
-------------------------- ----------------------------
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