Exhibit 10.7
RECIPROCAL REFERRAL AGREEMENT
BETWEEN
PresiNET
SYSTEMS
[GRAPHIC OMITTED][GRAPHIC OMITTED]
AND
Digital Commerce International, Inc.
(xxxxxxxx.xxx)
Reciprocal Referral Agreement
THIS AGREEMENT made as of the ____day of December, 2000
AMONG:
PresiNET Systems Corp., a body corporate, incorporated under
the laws of the Province of British Columbia, having offices at:
X000 - 000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxxx
XxxxxxX0X 0X0
("PresiNET")
AND:
Digital Commerce International, Inc., a body corporate, incorporated
under the laws of the State of Delaware having offices at:
300 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
and
0000 Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx
X.X.X. 00000-0000
("THATBANK")
THIS RECIPROCAL REFERRAL AGREEMENT ("Agreement") is made effective as of the
Closing Date by and between PresiNET and THATBANK ("Parties").
WHEREAS, PresiNET is in the business of providing managed Internet firewall
security services including, but not limited to, 7 day x 24 hour firewall
monitoring and response, and
WHEREAS, THATBANK is in the business of providing Internet e-commerce and
transaction processing services, including, but not limited to, web-site design
and hosting, creation of on-line shopping catalogues, merchant account issuance,
and payment gateway services, and
WHEREAS, PresiNET and THATBANK wish to grant each other a non-exclusive, but
preferential right to refer services and participate in co-marketing activities
("Preferred Referral Partner") according to the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants
hereinafter set forth, the Parties hereto hereby agree as follows:
Definitions
"Acknowledged Referral" means a Proposed Referral for which a Referral Recipient
either provides notice of acceptance to Referral Provider, or fails to give
notice of Rejection, within fifteen (15) days from the Referral Recipient's
receipt of the Proposed Referral.
"Change in Control" means any transaction or series of transactions in which a
party merges with another entity or in which more than fifty percent (50%) of
the voting stock or other voting securities or interests of a party are acquired
by another entity (alone or in combination with its affiliates), provided that
an underwritten public offering of common stock shall not be a Change of
Control.
"Closing" means the date of reference appearing in the caption of this
Agreement.
"Confidential Information" means all files, lists, records, documents, drawings,
specifications, equipment, ideas, methods of operation, business processes
information, customer files and other intellectual property of any form and
computer programs that incorporate or refer to any records and documents.
"THATBANK Services" means web-site design and hosting, creation of on-line
shopping catalogues, merchant account issuance, and payment gateway services.
THATBANK's Services are described as and offered as part of the subscription or
consulting service including:
3 Optional services and any additional future offerings
THATBANK Service means any of the THATBANK Services.
"Potential Customer" means a third party that the Referral Provider has
identified, pre-qualified as requiring the services of the other Party (a
PresiNET Service or a THATBANK Service, as the case may be), made a positive
recommendation to respecting those services, and believes will be likely to
enter into a contractual relationship with Referral Recipient for those
services.
"PresiNET's Services" means the managed Internet firewall services and
associated services provided by PresiNET. PresiNET Services are described as and
offered as part of the subscription service including:
4 PresiNET's managed Internet firewall services including its
appliances and/or third party appliances, monitoring, event
management, firewall service policy development, and reporting.
5 Optional services including DMZ, VPN, Proxy, security scanning,
and any additional future offerings
PresiNET Service means any of the PresiNET Services.
"Proposed Referral" means a written or electronic document provided to Referral
Recipient by the Referral Provider containing all of the following:
a. the Referral Provider's corporate name,
b. the date of submission,
c. the corporate name address and phone number of the Potential
Customer,
d. the division name of the Potential Customer,
e. the name and phone number of Referral Provider's employee who
made the recommendation to the Potential Customer,
f. the name and phone number of Referral Provider's contact at the
Potential Customer,
g. the specific service that Referral Provider has recommended to
the Potential Customer and
h. the specific activities that Referral Provider has conducted
regarding their recommendation of the services.
"Referral Provider" means the Party that delivers a Proposed Referral.
"Referral Recipient" means the Party that receives a Proposed Referral.
"Referred Miscellaneous Sale" means a purchase of services by a Potential
Customer occurring within ninety (90) days from an Acknowledged Referral, other
than the purchase of the specific service described in point (g) of a Proposed
Referral.
"Referred Service Sale" means a service contract, not less than 12 months in
duration, between the Referral Recipient and a Potential Customer, for the
specific service described in point (g) of the Proposed Referral, entered into
within ninety (90) days from an Acknowledged Referral.
"Rejection" means the provision of notice from the Referral Recipient to
Referral Provider, confirming that the Referral Recipient has either:
a. previously received a referral regarding the same third party
referenced in the Proposed Referral,
6 has already developed a relationship with the third party
referenced in the Proposed Referral, or
7 is unable to pursue a relationship with the third party
referenced in the Proposed Referral.
Referral and Payment
PresiNET will treat THATBANK as its Preferred Referral Partner and will use
reasonable efforts to provide Proposed Referrals to THATBANK, respecting:
a. any PresiNET client, originating through the direct marketing
efforts of PresiNET, which requires a service similar to the
THATBANK Services, and
b. any PresiNET client, originating through the marketing efforts of
a PresiNET channel partner, which requires services similar to
the THATBANK Service that cannot be provided by the PresiNET
channel partner.
THATBANK will treat PresiNET as its Preferred Referral Partner and will use
reasonable efforts to provide Proposed Referrals to PresiNET, respecting clients
of THATBANK requiring services similar to the PresiNET Services, at a price
point in the range charged by PresiNET for those PresiNET Services.
PresiNET and THATBANK will consider coordinated marketing activities designed to
facilitate and increase the frequency of mutual and reciprocal referrals
described in Articles 2.1 and 2.2. In particular, the Parties agree to consider
co-marketing activities including:
b. a jointly approved process of public announcements and publicly
disseminate information regarding the existence of this
Agreement, featuring coordinated press releases,
8 the creation of a hypertext link between agreed upon areas of the
corporate web sites maintained by the Parties,
9 facilitated interaction between THATBANK personnel and
corresponding PresiNET personnel designed to promote the
reciprocal offering of THATBANK Services and PresiNET Services,
and
10 other co-marketing activities that are mutually approved by the
Parties, in advance.
PresiNET will pay to THATBANK the following fee for each Referred Service Sale
where THATBANK acted as the Referral Provider:
For a period of twelve (12) months, starting from an Acknowledged Referral,
PresiNET will pay THATBANK $ 150 USD per individual Referred Sale.
THATBANK will pay to PresiNET the following fee for each Referred Service Sale
where PresiNET acted as the Referral Provider:
c. For a period of twelve (12) months, starting from an Acknowledged
Referral, THATBANK will pay PresiNET $ 150 USD per individual
Referred Sale.
All referral fees earned in accordance with the terms of this Agreement shall be
paid to Referral Provider, in US Dollars, within thirty (30) days after Referral
Recipient receives payment from the referral customer for the Referred Service
Sale or the Referred Miscellaneous Sale.
Proprietary Rights
Parties agrees that all PresiNET Services including ideas, methods of operation,
documentation and other information contained in the PresiNET products, and all
adaptations thereto are proprietary intellectual properties of PresiNET or its
suppliers and are protected by civil and criminal law, and by the law of
copyright, trade secret, trademark and patent of Canada and other countries.
Parties agrees that all THATBANK Services including ideas, methods of operation,
documentation and other information contained in the THATBANK products, and all
adaptations thereto are proprietary intellectual properties of THATBANK or its
suppliers and are protected by civil and criminal law, and by the law of
copyright, trade secret, trademark and patent of Canada and other countries.
Term and Termination
This Agreement will commence as of the Closing Date and will continue unless
earlier terminated as provided below.
Either party may terminate this Agreement upon thirty (30) days written notice.
Confidential Information
During the course of performance of this Agreement,
d. PresiNET may disclose certain of its Confidential Information to
THATBANK to permit THATBANK to perform its obligations under this
Agreement, and
e. THATBANK may disclose certain of its Confidential Information to
PresiNET to permit PresiNET to perform its obligations under this
Agreement.
PresiNET agree to maintain the secrecy of all Confidential Information received
from THATBANK, utilizing the same level of effort PresiNET utilizes to maintain
its own secrets or Confidential Information.
THATBANK agree to maintain the secrecy of all Confidential Information received
from PresiNET, utilizing the same level of effort THATBANK utilizes to maintain
its own secrets or Confidential Information.
PresiNET shall refrain from using, disclosing, or otherwise exploiting any
Confidential Information, provided by THATBANK, for any purpose not specifically
authorized by THATBANK. PresiNET undertakes, upon termination of this Agreement,
to either return or destroy all Confidential Information received from THATBANK.
THATBANK shall refrain from using, disclosing, or otherwise exploiting any
Confidential Information, provided by PresiNET, for any purpose not specifically
authorized by PresiNET. THATBANK undertakes, upon termination of this Agreement,
to either return or destroy all Confidential Information received from PresiNET.
PresiNET agrees not allow any Confidential Information received from THATBANK to
be made available to any third party, without prior written approval of
THATBANK.
THATBANK agrees not allow any Confidential Information received from PresiNET to
be made available to any third party, without prior written approval of
PresiNET.
PresiNET retains title to all proprietary rights, including patent, trademark,
copyright and trade secret rights, related to the PresiNET Services.
THATBANK retains title to all proprietary rights, including patent, trademark,
copyright and trade secret rights, related to the THATBANK Services.
To the extent that disclosure of Confidential Information is authorized by this
Agreement:
f. PresiNET will obtain prior agreement from its employees, agents or
consultants to whom disclosure of THATBANK Confidential Information is
to be made, to hold in confidence and not make use of such
Confidential Information for any purpose other than those permitted by
this Agreement. PresiNET will promptly notify THATBANK upon discovery
of any unauthorized use or disclosure of the Confidential Information
received from THATBANK.
11 THATBANK will obtain prior agreement from its employees, agents or
consultants to whom disclosure of PresiNET Confidential Information is
to be made, to hold in confidence and not make use of such
Confidential Information for any purpose other than those permitted by
this Agreement. THATBANK will promptly notify PresiNET upon discovery
of any unauthorized use or disclosure of the Confidential Information
received from PresiNET.
Disclaimer of Warranties
PresiNET and THATBANK specifically disclaim all expressed and implied warranties
to the fullest extent allowed by law.
No oral or written information or advice given by PresiNET, its agents or
employees shall create a warranty or in any way increase the scope of this
warranty. Parties shall not make, or authorize any other person or entity to
make, any representation or warranty whatsoever with regard to the PresiNET
Services, including, without limitation, to any users and resellers.
No oral or written information or advice given by THATBANK, its agents or
employees shall create a warranty or in any way increase the scope of this
warranty. Parties shall not make, or authorize any other person or entity to
make, any representation or warranty whatsoever with regard to the THATBANK
Services, including, without limitation, to any users and resellers.
THATBANK shall indemnify, defend and hold PresiNET harmless from and against any
liabilities, claims, lawsuits, proceedings, losses, damages, costs, expenses
damages, settlements or judgments, including without limitation PresiNET's
reasonable attorneys' fees and costs incurred in defending against such a claim,
resulting from or arising out of THATBANK's actions; provided that PresiNET
gives THATBANK prompt written notice of any such claim, tenders to THATBANK the
defense of settlement of any such claim at THATBANK's sole expense (provided
that THATBANK shall not settle or compromise any such claim in a manner that
does not unconditionally release PresiNET, without PresiNET's prior written
consent) and cooperates with THATBANK, at THATBANK's expense, in defending and
settling such claim.
PresiNET shall indemnify, defend and hold THATBANK harmless from and against any
liabilities, claims, lawsuits, proceedings, losses, damages, costs, expenses
damages, settlements or judgments, including without limitation THATBANK's
reasonable attorneys' fees and costs incurred in defending against such a claim,
resulting from or arising out of PresiNET's actions; provided that THATBANK
gives PresiNET prompt written notice of any such claim, tenders to PresiNET the
defense of settlement of any such claim at PresiNET's sole expense (provided
that PresiNET shall not settle or compromise any such claim in a manner that
does not unconditionally release THATBANK, without THATBANK's prior written
consent) and cooperates with PresiNET, at PresiNET's expense, in defending and
settling such claim.
PRESINET SHALL NOT BE LIABLE TO THATBANK FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
BUSINESS, LOSS OF DATA, LOSS OF PROFITS OR THE LIKE) REGARDLESS OF THE FORM OF
ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR OTHERWISE, EVEN IF PRESINET OR ITS REPRESENTATIVES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT ANY LIABILITY IS
IMPOSED ON PRESINET FOR ANY REASON WHATSOEVER, THE AGGREGATE AMOUNTS PAYABLE BY
PRESINET BY REASON THEREOF SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THATBANK
TO PRESINET FOR THE PRESINET SERVICES. Parties acknowledges that the foregoing
limitations are an essential element of the Agreement between the parties and
that in the absence of such limitations the pricing and other terms set forth in
this Agreement would be substantially different.
THATBANK SHALL NOT BE LIABLE TO PRESINET FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF
BUSINESS, LOSS OF DATA, LOSS OF PROFITS OR THE LIKE) REGARDLESS OF THE FORM OF
ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR OTHERWISE, EVEN IF THATBANK OR ITS REPRESENTATIVES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT ANY LIABILITY IS
IMPOSED ON THATBANK FOR ANY REASON WHATSOEVER, THE AGGREGATE AMOUNTS PAYABLE BY
THATBANK BY REASON THEREOF SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY PRESINET
TO THATBANK FOR THE THATBANK SERVICES. Parties acknowledges that the foregoing
limitations are an essential element of the Agreement between the parties and
that in the absence of such limitations the pricing and other terms set forth in
this Agreement would be substantially different.
General.
Any notice under this Agreement must be written, in English, and sent to the
address of such Party specified in this Agreement (or to such other address as
either Party may specify by notice given to the other Party). Any notice will be
deemed to have been effectively given (i) upon the lapse of ten (10) days
following mailing by registered mail, (ii) upon the lapse of three (3) days
after dispatch by courier, or (iii) upon receipt by personal delivery, which may
be by cable, telegram, facsimile transmission or telex.
The Parties shall attempt in good faith to resolve any dispute arising under
this agreement informally according to the following procedure. Upon written
request either Party identifying a dispute to be resolved, each Party will
designate a management representative with the responsibility and authority to
resolve the dispute. The designated management representatives shall meet within
fifteen (15) days after the request is received from the requesting Party to
attempt to resolve such dispute, or within a time as mutually agreed by the
Parties.
This Agreement and its terms and conditions are governed exclusively by and
construed according to the laws of the Province of British Columbia and of
Canada. Both Parties agree to submit to the exclusive jurisdiction and venue of
and agree that any cause of action arising under this Agreement shall be brought
in a court in Victoria, British Columbia.
The Parties each represent and warrant that there are no existing impediments to
their compliance with each and every term and condition of this Agreement and
that it has all right, power and authority to enter into this Agreement.
Parties may not assign, in whole or in part, this Agreement or its rights and
obligations under it without the prior written consent of the other Party. Any
attempted assignment by a Party in violation of the foregoing shall be void and
of no effect. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their successors and permitted
assigns. Any Change in Control of Parties shall be considered an assignment for
the purpose of this provision.
The Parties are independent contractors, not employees, agents, or legal
representatives of each other. PresiNET and THATBANK shall each be responsible
for appointing and compensating their own employees, agents and representatives.
Each Party will indemnify the other for any liabilities arising out of any
unauthorized actions or omissions of its employees, agents or representatives.
Neither PresiNET nor THATBANK shall be liable for damages for any delay or
failure of delivery arising out of causes beyond their reasonable control and
without their fault or negligence, including, but not limited to, acts of civil
or military authority, fires, riots, wars or embargoes.
Failure to enforce any rights under this Agreement, irrespective of the duration
of such failure, shall not constitute a waiver of those or any other rights.
If a court judges any provision of this Agreement to be void or unenforceable,
such a judgment shall in no way affect any other provisions of this Agreement,
or the validity or enforceability of this Agreement. Any invalid provision shall
be deemed to be replaced by a lawful provision most nearly embodying the
original intention of the Parties.
All rights and remedies provided herein are cumulative and in addition to all
other rights and remedies available at law or equity.
This Agreement constitutes the final, complete and exclusive agreement of the
Parties with regard to this subject matter and supersedes all prior agreements
and understandings, oral or written, relating to the subject matter of this
Agreement. Any changes to this Agreement must be in writing and be executed by
the Parties
IN WITNESS WHEREOF, the Parties hereto, by their authorized representatives,
have affixed their signatures as of the date first set forth above.
PRESINET SYSTEMS CORP. Digital Commerce International, Inc.
(THATBANK)
By: By:
Name: Xxxx Pothroin Name:
Title: Chief Executive Officer Title:
