DEALER/PROMOTER AGREEMENT
Whereas, Click 0-0-0.XXX Inc. (hereinafter "Click"), a Florida corporation whose
address is 00000 X.X. 00xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 is engaged in
the business of designing, developing, producing, supplying and distributing
various Internet-related services, including telephony services initiated by the
Internet (hereinafter "Services"); and Whereas, Click utilizes the services of
independent contractors (hereinafter "Promoters") to resell said Services to end
users; and Whereas the below signed independent contractor desires to become a
Promoter of Click's services in accordance with the terms and compensation basis
outlined herein, and for such other and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Click and Promoter hereby agree as
follows:
1. Duties and Rights of Promoter
1.1 Promoter shall use its best efforts to cause end-users to purchase Click's
services in accordance with the Click Service Agreement provided in the
Click 1-2-1 Guide.
1.2 Any additional products or services offered or sold to Promoters
accounts will be commissionable to Promoter. This applies to any new
products and services provided by Click and offered to Promoter's customer
base. Promoter shall be Click's non exclusive dealer for selling "Internet
related services".
1.3 In selling the Service, Promoter shall use only marketing materials and
forms approved by Click, which together with materials supplied by Click,
remain the property of Click. Promoter shall not make any changes to such
forms or materials without the prior express written consent of Click.
1.4 Promoter shall assist in collection of fees from end user.
1.5 Promoter represents that it is authorized to do business where-ever its
solicits end users, and that, Promoter will conduct business in full
compliance with all applicable laws, rules, regulations and orders, and in
a manner consistent with such procedures as Click may adopt from time to
time, including those currently set forth in the Click 1-2-1 Guide.
1.6 Promoter agrees to defend and forever indemnify and hold Click harmless
from and against all claims, loss, damages and expenses incurred by Click
resulting from the breach by Promoter of any of its representations,
warranties or undertakings set forth in this Agreement or otherwise arising
from the acts or omissions of Promoter.
1.7 Promoter is an independent contractor and as such shall be fully
responsible for the application of the Social Security Act, the Federal
Unemployment Tax Act, the Fair Labor Standards Act, the Minimum Wage and
Overtime Provisions, the Internal revenue Code Provisions and other
federal, state and local laws and regulations.
1.8 Promoter shall have no authority, and shall not purport to have authority,
to enter into any contract or commitment on behalf of Click.
2. Duties/Rights of Click
2.1 Click agrees to make payments due to Promoter under this Agreement.
2.2 Click agrees to provide and/or make available to Promoter documents and
information normally provided by Click and necessary to fulfill Promoter's
duties hereunder, including, but not limited to, Application Documents,
Service Agreements, marketing materials and documents and information
regarding practices to configure the Service and
support the Services.
2.3 Click reserves unto itself final approval to accept or reject all
Application Documents presented by Promoter to Click. Upon determination of
whether to enter a Service Agreement with a prospective end-user, Click
shall endeavor to immediately i8nform Promoter of its decision.
2.4 Click may in its discretion amend, withdraw, substitute, or modify the
Services, the area in which the Services are offered, and/or the rates and
charges applicable to the Services. Click shall have the right to refuse to
provide Services to any prospective end-user or any existing end-user
without incurring liability to Promoter.
2.5 Click reserves the right to engage an unlimited number of entities or
individuals other than Promoter to perform the same or similar Services on
behalf of Click and to engage in direct selling of such Services anywhere
that Click offers Services.
2.6 Click has the right to set off from any amount that would otherwise be
payable to Promoter the full amount of any damages and attorney fees to
which Click is entitled due to the breach of this Agreement. Promoter
consents to the attachment of Promoter's commissions to be held in escrow
during the pendency of litigation.
3. Compensation
3.1 Click shall pay Promoter a commission for accounts in accordance with the
Compensation Schedule set forth as Appendix A (and Incorporated herein) and
as further set forth in this paragraph. Promoter shall only receive
commission from those accounts resulting from Promoter's efforts as
evidenced by a duly executed original Service Agreement during the term of
this Agreement and at times when neither Promoter nor end-user is in breach
or default of this Agreement and/or the Service Agreement. The amount upon
which commissions are calculated, as outlined in "Appendix A", shall be all
payments made by end-user to Click for usage of the Services during the
term of the Service Agreement, less taxes, penalties for late payment or
improper use, set offs as set forth in 2.6 above, adjustments,
charge-backs, credits in favor of end-users, and costs of collection
(including attorney's fees). Click shall not reimburse Promoter for any
costs or expenses incurred by Promoter pursuant to its performance of
Duties under this Agreement.
3.2 Commissions will be payable to Promoter not later than the latest day of
each month following the month of Click's receipt.
3.3 BOTH PARTIES UNDERSTAND AND AGREE THAT IT IS THE CUSTOMERS RESPONSIBILITY
TO CHECK THEIR ACCOUNT ON THE INTERNET, SINCE NO BILLS ARE MAILED, TO
INSURE THAT THEIR ACCOUNT HAS A SUFFICIENT CREDIT BALANCE TO PAY ALL
CHARGES AS THEY OCCUR, INCLUDING MONTHLY ACCESS FEES, OR THE SERVICE WILL
BE TERMINATED.
4. Terms and Termination
4.1 This Agreement is effective upon execution by the last party to sign, and
expires the sooner of six (6) months or the sale of 2000 Chat Licenses.
This Agreement may thereafter renew on terms mutually agreeable to both
parties. This Agreement may be terminated by either party at any time upon
30 days written notice or by a new term Agreement is executed, which shall
supercede this Agreement.
4.2 This Agreement can be terminated by Click, with no less than 30 days
notice, of the Promoter fails to meet performance requirements as outlined
in "Appendix A".
4.3 This Agreement may be terminated by either party in the event of a material
breach by the other party which is not cured within 30 days of receipt of
written notice. In addition, this Agreement shall terminate 30 days after
the filing, against either Parties assets, of a petition in bankruptcy or
insolvency, or for reorganization or for the appointment of a receiver or
trustee, of all or a portion of such Party's property, pursuant to a
statute of the United States or any State, where such filing is not
discharged or withdrawn within said 30 day period.
4.4 This Agreement may be terminated upon 30 days written notice for conduct by
Promoter that Click deems injurious to Click's reputation.
4.5 This Agreement shall terminate immediately upon the death or disability of
Promoter, or if Promoter is unable to perform its Duties for any
consecutive 30 day period for any reason.
4.6 After termination of this Agreement, Promoter shall cease use of materials
provided by and approved by Click as set forth in paragraphs 1.3 and 2.2
herein, and shall immediately return to Click all originals and copies of
customers lists and other proprietary information as set forth in
paragraphs 5.1 and 5.2 below.
4.7 Promoter may not assign or transfer its interest, rights or obligations
under this Agreement without the prior written consent of Click.
4.8 This Agreement may be terminated by Click if Promoter uses Click products
in the process of "Spamming" customers or potential customers on the
Internet. Promoter acknowledges and consents to the termination of
end-users who use Click products in the process of "Spamming" on the
Internet.
5. Confidential Information and Intellectual Property
5.1 Any compilation, including databases, lists and/or agreement, containing
any and all active customer (end-user) information gathered by Click or by
Promoter during the term of this Agreement, including but not limited to
name and address, pricing/purchasing information, financial information,
and the like is the proprietary, trade secret information of Click and
shall be turned to Click upon request or termination of this Agreement.
5.2 Further confidential/proprietary information of Click is to be returned to
Click upon request or termination of this Agreement, includes but is not
limited to any and all documents, compensation schedules, records,
techniques, marketing program materials, computer software programs,
database, code files, Reseller Guide, computer files containing images or
graphic designs and any other information in any form or computer data
relating to the business of Click.
5.3 Upon termination of this Agreement, Promoter will not use proprietary
information of Click for any purpose. At no time during the term of this
Agreement will Promoter make use of the proprietary information of Click as
defined above other than for the express purposes set forth int this
Agreement.
5.4 This Section shall not in any way limit Click's breadth of protection under
applicable trade secret and unfair competition laws.
5.5 During the term of this Agreement, Promoter shall use certain trademarks,
trade names, service marks, copyrights, common law marks, logos and other
intellectual property
assets owned by Click, as expressly approved in advance, in writing, by
Click. Promoter's usage of the above-described intellectual property shall
be in connection with resale/promotion of the Click Services. Promoter
shall not use any trade names, copyright, trademarks, service marks, logos
or the like, which are confusingly similiar to any intellectual properties
of Click. The intellectual property assets and the good will associated
therewith remain the sole property of Click. Promoter shall use applicable
notice by all Click intellectual property as set forth int eh Click Guide.
6. Miscellaneous Provisions
6.1 Each party represents that it has the right to enter into this Agreement,
that its signatories have the authority to bind and that the performance of
the terms of this Agreement do not violate confidentially, non-compete or
other agreement by which the party is bound.
6.2 Click makes no representation that is intellectual property assets do not
infringe on the rights of any person anywhere in the world, that the goods
will beof a specified quality or that they will not be interrupted, that
the Services comply with the laws of any country other than the U.S.A., or
that value added, excise or other taxes, or equipment surcharges are not
payable on the Services.
6.3 CLICK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WITHOUT LIMITING THE FOREGOING, PROMOTER
FULLY RELEASES AND RELIEVES CLICK FORM ALL LIABILITY FOR ALL DAMAGES,
COSTS, EXPENSES AND LIABILITIES OF EVERY KIND AND NATURE, INCLUDING WITHOUT
LIMITATION, LOST PROFITS, DAMAGE TO GOODWILL AND ALL CONSEQUENTIAL SPECIAL,
INDIRECT, PUNITIVE AND OTHER DAMAGES WHATSOEVER, ARISING OUT OF THE
PERFORMANCE OR NONPERFORMANCE OF THE SERVICE.
6.4 In the event any of the provisions of this Agreement are deemed to be
invalid or unenforceable by Court order, or otherwise, the unenforceable
provision shall be deemed serverable from the remainder of this Agreement
and the remaining provisions shall remain binding.
6.5 The terms and provisions of this Agreement shall be governed and enforced
pursuant to the laws of the state of Florida. Promoter hereby submits to
the jurisdiction of the courts of Miami, Dade County and/or the Southern
District of Florida to resolve any dispute relating to the terms of this
Agreement or the Services addressed in this Agreement.
6.6 Neither Party shall be liable to the other Party for any delay in
performing obligations under this Agreement, if such delay is caused by
circumstances beyond the non- performing Party's reasonable control,
including, but not limited to, any delay caused by any act or omission of
the other Party, acts of God, war, floods, windstorm, labor disputes or
delay of essential materials or services.
6.7 This Agreement constitutes the sole and entire Agreement among the Parties
pertaining to the subject matter contained herein and supercedes and
cancels any and all contemporaneous agreements or understandings, whether
oral or written, among the parties with respect to the subject matter
contained herein.
PROMOTER: STARTCALL CORP.
ADDRESS: 0000 XXXXXXXX XXX XX.
XXXXX 0000, XXXXX XX
PHONE: 000-000-0000
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: President Title C.O.O.
Signature /s/ Xxxxxxx Xxxxxxxx Signature /s/ Xxxxxxx Xxxxxxxx
6/9/00
CLICK INTERCONNECT DEALER/PROMOTER AGREEMENT
APPENDIX "B" Co-Branding
Click And Call Corporation ("Click And Call") and Click Interconnect, Inc. now
known as Click 0-0-0.XXX, Inc ("Click") entered into a Delaer/Promotion
Agreement on March , 2000 and wish to amend that Agreement as follows:
1. Click hereby agrees to Co-Branding with Click And Call, the
Visitor Pop-Up Screen known as the "Chat Login Operator Login"
and the "Back Office" on Click's Live Chat Service, subject to
certain restrictions. Co-Branding is limited to those areas
and specifications designated in the "Screen/Logo
Customization Guidelines" which is attached as "Exhibit 1". In
addition, these creens which will be prepared by Click, shall
contain the following text, "Powered by Click 1-2- 0.XXX Inc."
2. All other provisions of the Agreement remain the same.
Appendix "B" amend and merges into the Agreement dated March , 2000 and becomes
effective upon the last party to sign. It expires upon the expiration of the
underlying Agreement.
Click And Call Corporation Click 0-0-0.XXX Inc.
By: /s/ Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
Its' President Its' C.O.O.
(X) XXXXXXXX XXXXXXXX (X) /s/ Xxxxxxx Xxxxxxxx
Date: 3/16/00 Date: 3/16/00
Amendment to Agreement
between
Click 0-0-0.XXX Inc.
and
Xxxxxxxxx.xxx, Inc.
WHEREAS Click 0-0-0.XXX Inc. ("Click") and Xxxxxxxxx.xxx, Inc. ("Start Call"),
taken together (the "Parties"), entered into a DEALER/PROMOTER AGREEMENT March
10, 2000 (the "Agreement"), and now wish to extend and modify that Agreement,
effective on the date the last party executes this Amendment.
AND WHEREAS the Parties have exchanged mutual promises, as well as other good
and valuable consideration, the sufficiency of which is hereby acknowledge.
NOW THEREFORE, the Parties have agreed to that the term of the Agreement shall
be extended for an additional twelve (12) months from the effective date of this
Amendment, and
A. Click hereby agrees to permit Start Call to:
1. Promote its' ChatLive service with a thirty (30) day free trial
offer to mutually agreed upon data bases of customers and through
its' normal sales channels, until Start Call acquires three
thousand (3000) paying customers for Click's ChatLive service,
and
2. Sell ChatLive with other services, as a package, provided Start
Call obtains Click's advance approval for the package, and
3. Invoice and collect from customers directly in the situation
detailed in Item A.2, above, provided Click and Start Call
mutually agreement that an adequate billing, audit and customer
management system is provided for these customer. All other
customers will be billed by Click.
B. Start Call agrees:
1. To pay Click upon the execution of the Amendment a Refundable
Deposit of twenty-five thousand dollars ($25,000), to be applied
against Click's shares of Revenue from customers described in
Item A, 3 above, and
2. To pay Click an additional Deposit of twenty-five thousand
dollars ($25,000), upon the sooner of: Click, or
a) Start Call acquiring one thousand (1,000) ChatLive customers
for Click, or
b) Start Call reaching a zero ($0.00) balance on their original
twenty-five thousand dollar ($25,000) Deposit detailed in
Item B.1. above.
AGREED:
Click 0-0-0.XXX Inc. Xxxxxxxxx.xxx, Inc.
/s/ Xxxxxx X. Stripe /s/ Xxxxxxx Xxxxxxxx
------------------------- --------------------
By: Xxxxxx X. Stripe By: Xxxxxxx Xxxxxxxx
Title: CEO Title: President
Dated: 11/6/00 Nov. 1/00
