Exhibit 10.08
Exhibit 10.08 Agreement dated March 2, 0000 xxxxxxx Xxxxxxxx Xxxxxx
Inc. and ACS Communications Industry Services, Inc.
Contract:
THIS AGREEMENT is made between Innofone Canada Inc., whose principle place of
business is 000 Xxxxxxxxx Xxxxxxxx Xxxxx 0 Xxxxxxx, Xxxxxxx X0X 0X0
("Customer"), and ACS-Communications Industry Services, Inc., whose principle
place of business is 0000 X. Xxxxxxx, Xxxxxx Xxxxx 00000 ("ACS").
A. Customer has agreed to engage ACS, and ACS has agreed to be engaged, to
provide certain billing and related information technology services to Customer
in accordance with the terms of this Agreement.
B. ACS and Customer agree as follows:
1.01 General Overview: ACS, as a independent contractor agree to provide
access to certain software and perform certain services for the
Customer, at a defined cost as outlined in the following under the
terms herein set forth.
1.02 iCARS: ACS will make available to the Customer dial-in access to the
basic iCARS software at a cost outlined in "Attachment #1. Cost of
support and maintenance of the iCARS SQL tables is reflected within in
Attachment 1 accordingly.
1.03 Software: The Customer acknowledges that ACS is the sole owner of any
software, table structure and all related billing services and or
techniques, existing or developed in the future, and that the software
and or services / techniques are only made available to the Customer
through services performed as part of this agreement . The Customer
further acknowledges that it has no proprietary right or ownership,
either expressed or implied, to any existing or future developed
software, billing processes or techniques that ACS may develop or use,
in association with this particular application or project as agreed
upon by the parties.
1.04 Invoice Processing: ACS will provide the Customer invoic and all
additional processing at a cost outlined in "Attachment 1".
1.05 Minimum Monthly Service Bureau Fee: ACS will invoice the customer based
on the cost of service(s) provided within a given xxxx cycle as
outlined in Attachment #1 or $10,000.00 per month, which ever is the
greater.
1.06 Term: This agreement is for the term of 36 months and will be
automatically renewed for two years at the end of the term at the same
terms and conditions as outlined in this agreement and any other
mutually agreed upon terms or conditions that have been incorporated
into the agreement, unless written notice is given by either ACS or the
Customer at least 120 days prior to the date of termination.
Termination of this agreement by the Customer prior to the 36 month
anniversary date or the two year renewal date will be considered early
termination.
1.07 Early Termination: The Customer agrees that its early termination of
the contract must be
communicated in writing and that such notice will be subject to a one
time financial penalty. Such penalty will be based upon the greater of
the previous three months average billing or 10,000 dollars, times 50%
of the number of months remaining in the contract. The Customer
acknowledges that termination fees do not include any migration work
that may be involved in the transfer of information from ACS to the
Customer. ACS will provide the Customer a written release from the
contract at such time that all outstanding invoices including early
termination fees are paid in full.
1.08 Service Level and Operational Performance. ACS will use commercially
reasonable efforts with regards to meeting all performance and
operational measurements as outlined in Attachment 3. If performance
measurements are not met, ACS will pay Customer the penalty fees noted
within the Attachment 2. If ACS does not meet the performance
measurements for either four consecutive months, or does not meet the
performance objectives for any of the six out of 12 previous months,
then Customer has the right to terminate this service agreement without
payment of termination fees as outlined in section 7.
ACS and Customer agree to provide a final version of Attachment 2
within 14 calendar days after execution of this agreement.
1.09 Communication: ACS and the Customer recognize the desirability of
publicizing their relationship with the prior approval of both parties,
which approval shall not be unreasonably withheld or delayed, and shall
be in keeping with the timely disclosure rules of the SEC.
10. Payment of Services: The Customer agrees to pay ACS a security deposit
equivalent to one months average billing and further agrees that this
deposit will be reviewed quarterly to reflect the Customer growth /
decline in business. Payment of ACS invoice is due upon receipt. A 1.5%
finance charge per month or the highest legal rate, whichever is lower,
will be applied to all invoice amounts over 30 days, less consideration
for any disputed amounts identified through the provisions of the SLA.
The Customer acknowledges that ACS has the unconditional right, without
penalty or liability, to cease all work for the Customer if the
Customer has ACS invoice(s) that are more than 30 days past due of full
payment.
11. Confidentiality: All information which the parties may exchange from
time to time may be considered by the party disclosing such information
to be confidential and proprietary in nature, including but not limited
to: (1) any information provided by Customer to ACS or processed by ACS
on behalf of Customer, (2) any ACS proprietary software made available
to Customer, (3) formats, techniques or any other technologies
developed or used by ACS on behalf of Customer and (4) any and all such
other information that the disclosing party specifies as confidential
and provides to the receiving party ("Confidential Information"). The
parties hereby agree to treat any and all Confidential Information,
which may be exchanged hereunder with the same degree of care with
which they treat their own similar information, which they consider to
be confidential or proprietary in nature.
The obligations of confidentiality set forth herein will not apply to
any Confidential
Information that is (1) publicly available or becomes so in the future
without restriction, (2) rightfully received by either party from a
third party and not accompanied by confidentiality obligations, (3)
already in the receiving party's possession and lawfully received from
sources other than the disclosing party, (4) independently developed by
the receiving party, (5) approved in writing for release or disclosure
without restriction by the disclosing party.
The terms of this Section will not preclude the disclosure of
Confidential Information by either party if such disclosure is (1) in
response to a valid order of a court or other governmental body of the
United States or Canada or any political subdivision thereof, (2)
otherwise required by law or (3) necessary to establish rights under
this Agreement, provided however, that the parties will limit the
disclosure to the extent required for such purposes.
12. Warranty ACS services will be performed in accordance with generally
accepted consultant/contract business principals and practices. This
warranty is in lieu of all other warranties either expressed or
implied. Customer's remedyes under this Agreement shall be to require
ACS to rerun or rework any services incorrectly performed by ACS. The
parties' agree that ACS' cumulative liability, whether in contract or
in tort, for any and all cause of action arising out of or relating to
this Agreement shall be limited to the lesser of: (i) the actual amount
of damages incurred by the injured party as a result of the event(s)
giving rise to any cause of action or (ii) the Fees paid by Customer
for the Services under the applicable Services Schedule for the three
(3) month period immediately preceding any cause(s) of action. In no
event shall ACS be liable for any incidental, consequential or indirect
damages.
13. Applicable Law: This agreement in and schedule / attachments of cost hereto
shall be interpreted in accordance with the laws of the Province of Ontario,
Canada.
14. Severability: The invalidity of any particular provision of the agreement
shall not affect any other provision thereof, but the agreement shall be
continued as if such invalid provision were omitted.
15. Taxes: The Customer acknowledges that all quoted charges contained in this
agreement are net of taxes and that all invoices from ACS to the Customer will
include applicable taxes, customs, duties, levies, and similar charges payable
to any jurisdiction or authority.
16. Assignment. This Agreement will be binding on the parties and their
respective successors and assigns, except that no party may assign or
transfer its rights or obligations under this Agreement without the
prior written consent of the other party which consent will not be
unreasonably withheld; provided that the merger of either party with
another company or the assignment of this Agreement to the purchaser of
all or substantially all the assets of a party will not be deemed an
assignment in violation of this Section 22.0 Furthermore, either party
may assign its rights and obligations under this Agreement to any
parent, subsidiary or affiliate, provided that the assignee agrees in
writing to be bound by the terms and conditions of this Agreement;
provided that no such assignment will affect the liability of the
assignor, nor release
such party from its obligations under the terms of this Agreement.
17. Exclusivity: Provided the billing service annual revenues generated
from this Agreement meet or exceed the schedule Attachment A, Customer
will have sole and exclusive rights to the rate and compare
functionality provided by ACS billing services which will facilitate
the customers Rate and Compare (TM) service as follows:
A) In support of marketing programs offered in Canada to Canadian
subscribers;
B) Rights are limited to the current Customer program structure, (i.e.
percent discounted from lowest cost provider);
18. Force Majeure. Each party to this Agreement will be excused (other than
obligations with respect to payments or credits) from performance, and
will not be liable, for any period and to the extent that such party is
prevented, hindered or delayed from performing any Services or other
obligations under this Agreement, in whole or in part, as a result of
acts, omissions, events, causes or conditions beyond the control of
such party, which include, by way of illustration and not limitation,
acts of God or public enemy; acts or omissions of Customer; acts of
government; civil disobedience or insurrection; lock-outs; freight
embargoes; acts of civil or military authority; national emergencies;
labor strikes or disputes; fire, flood or catastrophe; war or riots.
Notwithstanding the foregoing provisions of this Section, it is
expressly agreed that each party's performance and liability will only
be excused for such period of time that such party is exercising
commercially reasonable efforts to remedy the cause of such
nonperformance.
19. ALTERNATIVE DISPUTE RESOLUTION
a) Resolution By Parties. Prior to the initiation of any action or
proceeding under this Agreement to resolve disputes between the
parties, the parties will make a good faith effort to resolve any such
disputes by negotiation between representatives with decision-making
power, who will not have had substantive involvement in the matters
involved in the dispute, unless the parties otherwise agree.
b) Arbitration. Failing resolution pursuant to Section 25.0 (a) above,
all disputes, controversies, or differences arising out of this Agreement or any
breach thereof will be finally settled pursuant to arbitration in accordance
with the prevailing laws of the Province of Ontario, Canada or such other
jurisdiction as the parties may mutually agree upon.
The arbitration will take place in Dallas, Texas and will apply the governing
law of this Agreement. The decision of the arbitrators will be final and binding
and judgment on the award may be entered in any court of competent jurisdiction.
20. Entire Agreement: This agreement supersedes any prior written or oral
agreements and constitutes the entire agreement between ACS and the
Customer which shall not be varied by any oral agreement or
representation of otherwise, except in writing and duly executed by
both parties. This agreement shall be governed by the laws of the
Province of Ontario, Canada.
IN THE WITNESS WHEROF the parties have hereunto set their hands the date first
written above.
--------------------------------- ---------------------------------
Customer Name and Title
Xxxxx Xxxx, CEO
--------------------------------- ---------------------------------
Witness - Customer Name and Telephone
Accepted by ACS Communications Industry Services, Inc. this 2nd day of
March, 2000.
--------------------------------- ---------------------------------
ACS Communications Industry Services, Inc. Name and Title
Xxxx Xxxxx, President
--------------------------------- ---------------------------------
Witness - Name and Telephone
ACS Communications Industry Services, Inc.
Xxxxxx Xxxxxx (000) 000-0000
Attachment 1
Monthly Access Fees
Fee
iCARS Base Access(1)
o First Product (i.e.., Equal Access,
long distance) $ 500.00 per month per product
o Additional Products $ 300.00 per month per product
iCARS Additional Users(2)
o Three (3) concurrent user access $ 100.00 per user
iCARS Invoice Viewing(3)
o Additional 0.5 GB invoice data $ 50.00 each 0.5 GB per month
ICARS access and SQL table maintenance
(1) Includes three (3) concurrent user access Includes 0.25 GB data storage for
invoice viewing (Adobe required to view PDF file format)
(2) Software access and SQL table maintenance
(3) Approximatly 50k impressions - actual number of print images dependent on
graphic intensity
Attachment 1 continued
Xxxx-Cycle Processing Fees
Fee
Data Preparation(1)
o First Product (e.g., Equal Access, long
distance) $ 1,000.00 per xxxx-cycle
o Additional Products $ 600.00 per xxxx-cycle
Invoice Preparation(2)
Standard invoice
All invoices $ 0.75 per invoice
Invoice Processing(2)
o Call Records (CDRs) All CDRs $
$ 0.003 each
o Products
All products $ 0.030 each
Xxxx-Cycle Printing(2),(3)
o Paper, 20lb Bond $ 0.0125 each
o Toner (600 DPI) $ 0.05 per impression
Invoice Fulfillment
o Envelop #2 Booklet(4) $ 0.10 each
9x12 or larger(5) TBD, but not to exceed $1.00
each.
o Third Party Collateral Inserts
TBD
(1) Product fee based 300 product codes.
(2) Includes basic set-up and processing, additional fees may be
applicable, does not include initial account set-up fees. Includes quality
control sampling checks and measures.
(3) Includes invoices and reports.
(4) Includes set-up, labor and machine time.
(5) Includes labor.
Attachment 1 continued
Additional Processing Fees
Fee
Data Preparation(1)
o data stream(1) $ 250.00 each per xxxx-cycle
o New or revised rate table $ 300.00 minimum Set up(2)
$ 100.00 each per xxxx-cycle
o Product codes $ 3.00 each
o Exception rates $ 1.00 per line of data entry
Invoice Viewing and Data Output
o Invoice PDF print file format on CD-ROM(3) $ 75.00 each
o CallView basic software (single site $ 125.00 per site
access)(4)
Rated CDRs on diskette to view in CallView $ 10.00 each
(1) Includes basic processing, additional fees may be applicable for initial set
up
(2) Separate quotation will be provided at point of request
(3) Required for online invoice viewing in iCARS.
(4) On premise software for users to view, manipulate and export call record
data from their invoice
