1
EXHIBIT 10.7
mPRESENCE AGENCY AGREEMENT
2
mPRESENCE AGENCY AGREEMENT
This Agreement is made and entered into between
A. XX.XXX, a company duly incorporated under the laws of
California, with its principal office at Xxxxxxxxxxx 00,
XX-000 Xxxxxxxxx, Xxxxxxx (hereinafter "OZ")
and
B. Ericsson Radio Systems AB, a company duly incorporated
under the laws of Sweden, with its principal office at
Xxxxxxxxxxxxxx 00, XX-000 00 Xxxxxxxxx (hereinafter the
"Agent").
Initial Term: Two (2) years (hereinafter the "Initial Term").
PREAMBLE (BACKGROUND)
WHEREAS, OZ is in the business of providing to network operators
and Internet businesses mPresence, a hosting and managed care
communication and service framework that includes a number of
applications and services developed by OZ and licensed from
third parties. iPulse is one example of a third-party licensed
application to be included in the mPresence framework;
WHEREAS, Agent is the owner of the iPulse application and, as
such, is active in promoting and licensing iPulse to network
operators and others who may desire to purchase mPresence
services in addition to or in lieu of acquiring a commercial
iPulse license;
WHEREAS, OZ desires to grant an agency to Agent, and Agent
desires to act as OZ's agent for the purpose of promoting and
selling mPresence services to Agent's actual and prospective
customers.
NOW THEREFORE, the parties agree as follows:
1 SCOPE OF AGREEMENT
1.1 Subject to the terms and conditions of this Agreement, OZ hereby
appoints the Agent, on a non-exclusive basis, to canvass and
solicit inquiries and orders for delivery in the whole world
(the "Territory") for mPresence Services described in Appendix 1
("mPresence Services").
3
1.2 OZ reserves the right to refrain from offering mPresence
Services if, in its reasonable judgment, the circumstances so
require. All orders procured by the Agent shall be subject to
written acceptance by OZ.
1.3 OZ may at any time, without any liability to the Agent,
discontinue the marketing or sale of all or part of mPresence
Services.
2 OZ'S OBLIGATIONS
OZ agrees to provide the Agent with such:
(a) assistance as the Agent reasonably requires and OZ deems
necessary for promoting the licensing of mPresence
Services; and
(b) mPresence Services information and documentation as the
Agent reasonably requires and OZ deems necessary. OZ
will furnish the Agent reasonable quantities of
catalogues, price lists, technical instructions and
other printed material that are available to OZ. All
such material will be shipped FCA Stockholm (INCOTERMS
1990).
3 AGENT'S OBLIGATIONS
3.1 The Agent shall:
(a) assist OZ in the execution of service sales contracts in
respect of mPresence Services;
(b) report on all matters of interest to OZ that directly or
indirectly affect the sale of mPresence Services in the
Territory, including the activities, products and prices
of competitors, the financial standing of customers and
tariffs, duties, taxes, laws and changes thereof which
may affect sales of mPresence Services;
(c) protect and promote OZ's goodwill and reputation;
(d) comply with all reasonable instructions, policies and
guidelines given by OZ;
(e) immediately transmit to OZ any inquiry from prospective
customers together with available information which may
help OZ in evaluating and attending to the business;
(f) immediately notify OZ upon knowledge of any infringement
of its copyrights, patents, trademarks or other
intellectual property rights and assist OZ in
safeguarding such rights, provided OZ compensates the
Agent for its reasonable out of pocket expenses for such
assistance;
(g) immediately notify OZ of any change in the management,
control or ownership of the Agent; and
(h) act dutifully, in good faith and generally look after
the interests of OZ.
4
3.2 The Agent shall indemnify OZ against all claims by a third party
arising out of acts, omissions or misrepresentations of the
Agent.
4 COSTS AND EXPENSES
The Agent shall defray all costs and expenses of and incidental
to the agency.
5 GENERAL RESTRICTIONS
5.1 The Agent has no authority to make any commitment whatsoever or
to receive any money on behalf of OZ, nor can it forgive any
debt, security or obligation due OZ on account of mPresence
Services or otherwise.
5.2 Provided any applicable mandatory law does not stipulate
otherwise, during the validity of this Agreement and for two (2)
years thereafter the Agent shall not directly nor indirectly
engage in any business which competes or interferes with the
licensing of mPresence Services.
6 CONFIDENTIAL TREATMENT
The Agent shall not disclose or make any unauthorized use of any
information concerning OZ's business, affairs or mPresence
Services received by the Agent in the course of its activities
under this Agreement, except to the extent necessary for the
Agent's activities in accordance with this Agreement. The
Agent's obligations under this Article shall survive the
termination or expiration of this Agreement.
7 COMMISSION
7.1 The Agent shall only be entitled to a commission based on the
net amount of payments (after deduction of taxes, hosting
expenses, third-party licensing costs, insurance and other
similar costs) actually received by OZ under a licensing
contract for mPresence Services concluded through OZ's
acceptance of orders procured by the Agent. The rate of
commission and any special conditions regarding the method of
its calculation or payment shall be agreed upon in writing
between the parties from time to time, prior to OZ's price
quotation to a customer. In the absence of such agreement, the
rate of commission shall be fifteen percent (15%) of the above
net payment.
7.2 The commission set out in 7.1 above is based on that the Agent
fully perform all of its obligations according to this
Agreement. If the Agent only introduce a potential customer to
OZ, no commission shall be payable. However, in such case Agent
shall instead receive Finders Fee corresponding to five percent
(5%) of the net Payment (as defined in 7.1 above).
5
7.3 The Agent shall have no claim because of any failure or delay by
OZ to collect payments.
7.4 The Agent shall be entitled to commissions only on sales
contracts for Products concluded during the term of this
Agreement.
7.5 The Agent shall not be entitled to any compensation, other than
the commission mentioned above, for costs and expenses of and
incidental to the agency.
8 OZ'S TRADEMARKS AND TRADE NAMES
8.1 The Agent is authorized, and shall in its promotion of
mPresence, utilize such trademarks and trade names and other
proprietary words or symbols (collectively the "Trademarks", as
OZ may from time to time use in association with mPresence and
which are notified in writing to the Agent.
Any use by the Agent of any of the Trademarks shall be in strict
accordance with OZ's usage rules prevailing from time to time
and OZ's instructions.
8.2 Nothing in this Agreement shall be deemed to grant to the Agent
any right, title or interest in any of the Trademarks or the
word "XX.XXX," except the right to use the Trademarks as
permitted in this Article 8. Except as provided herein, the
Agent shall not have any right to use the word "XX.XXX," the
Trademarks or any derivative thereof or any combination of trade
names, trademarks and company names including said word, symbol
and Trademarks, and further, the Agent will refrain from using
or registering any trade name or trademark confusingly similar
thereto.
8.3 The Agent shall not publish, encourage or approve any
advertising or practice that might be detrimental to the good
name, Trademarks, goodwill or reputation of OZ or its products
(including mPresence), nor will it act in a manner that may have
such an effect.
8.4 Upon receipt of written notice from OZ, or the expiration or
termination of the agency created under this Agreement, all of
the Agent's rights concerning use of the Trademarks shall
automatically terminate as of the date of such receipt,
expiration or termination and the Agent shall then immediately
cease to use the Trademarks.
8.5 Any use of the Trademarks, whether in their entirety or in part,
shall be for the benefit of OZ only. Any right to the Trademarks
which may have been acquired by the Agent through its use
thereof shall, as soon as they come into existence,
automatically be transferred to OZ without any compensation to
the Agent; the Agent shall forthwith sign all documents deemed
necessary by OZ to confirm such transfer. This Subarticle 8.5
shall survive the termination this Agreement.
OZ may, where registered user provisions exist and subject to
registration of the Trademarks, apply for registration of the
Agent as a permitted user of the Trademarks within the
Territory. If this Agreement is insufficient for
6
such registration, the parties will sign a short form
supplementary agreement in form satisfactory to registrar of
trademarks in the Territory.
9 TERM AND TERMINATION
9.1 This Agreement shall become effective upon the date of signing
by both parties and shall remain in force until the final date
of the Initial Term. Unless terminated as provided herein, upon
expiration of the Initial Term the agency shall be automatically
extended for an indefinite period. Either party may terminate
this Agreement without cause by giving not less than six (6)
months notice in writing prior to expiration of the Initial Term
and thereafter upon giving six (6) months written notice of
termination.
9.2 Notwithstanding Subarticle 9.1, each party is entitled to
immediately terminate this Agreement if the other party should
commit a breach hereof that is not insignificant and such party
does not remedy such breach within thirty (30) days from written
notice by the other party requiring the defaulting party to
remedy the same.
9.3 In addition to Subarticles 9.1 and 9.2, OZ shall have the right
to immediately terminate this Agreement if:
(a) the Agent's financial situation or commercial ability
deteriorates to the extent that OZ reasonably believes
that the Agent is or will be unable to fulfil its
obligations under this Agreement; or
(b) there is a change in the management, control or
ownership of the Agent or of any fundamental reason
(possibly mentioned in the Preamble) for OZ's
appointment of the Agent that could, in OZ's sole
discretion, adversely affect OZ.
9.4 On termination of this Agreement, neither party shall be
entitled to any compensation or damages for or on account of
such termination, except where such claim is based on a breach
of this Agreement.
9.5 The Agent shall return to OZ all material furnished the Agent,
including catalogues and price-lists, forthwith upon any
termination of this Agreement.
9.6 The provisions of this Agreement that by their nature are
continuing, shall survive the termination or expiration of this
Agreement.
10 GENERAL PROVISIONS
10.1 This Agreement contains the entire agreement of the parties on
the subject matter hereof and supersedes all prior agreements
between them relating to any matter covered by this Agreement.
No agreement hereafter modifying or supplementing this Agreement
(an "Amendment") shall be binding unless confirmed in writing by
the parties. In the event of a conflict between an Amendment and
this Agreement, the Amendment shall prevail provided it
expressly states the subarticle of this Agreement that it
modifies.
7
10.2 This Agreement is not assignable by the Agent. OZ shall have the
right to transfer or assign this Agreement in whole or in part
to any of its subsidiaries or affiliates.
10.3 Neither party shall be liable to the other for any indirect,
incidental, special or consequential damages of any nature or
kind whatsoever, including loss of profit, except with respect
to claims by OZ for breach by the Agent of its obligations under
Subarticle 5.2 and Articles 6 or 8.
10.4 All notices under this Agreement shall be effective upon receipt
and shall be sent by hand delivery, registered mail or telefax
to the party to be served at its address as stated herein. A
party may change its address by a notice in the manner set forth
above.
10.5 If any provision of this Agreement is held invalid or
unenforceable, then, to the extent permitted by law, the
remainder of this Agreement shall be fully enforceable without
such provision.
10.6 Nothing contained in this Agreement shall be construed as
constituting the Agent and OZ as partners or joint venturers, or
as creating the relationship of employer and employee between
them or otherwise create any other relationship than that of a
principal and an agent as set forth in this Agreement.
11 DISPUTES
11.1 Any dispute arising out of or in connection with this Agreement
that cannot be resolved by good faith negotiations shall be
finally settled in accordance with the Rules of Arbitration of
the International Chamber of Commerce, by a panel of three
arbitrators. The place of arbitration shall be Stockholm,
Sweden, and the language of the proceedings shall be English.
Notwithstanding this, OZ may at any time apply to a court of
competent jurisdiction for injunctive or other equitable relief
or corresponding remedy, in case of any breach, or threatening
breach, of Article 6 or 8.
8
11.2 Swedish substantive law shall govern this Agreement.
* * * * * * * * * * *
This Agreement has been executed in two (2) originals, of which
the parties have received one (1) each.
Place Stockholm Place Stockholm
-------------------- --------------------
Date 2000/11/01 Date 2000/11/01
--------------------- --------------------
ERICSSON RADIO SYSTEMS AB XX.XXX
By: /s/ XXXX XXXXX By: /s/ XXXXX XXXXXXXX
--------------------- ---------------------
XXXX XXXXX XXXXX XXXXXXXX
