EXHIBIT 10.6
COOPERATIVE MARKETING AGREEMENT
This Cooperation Agreement ("Agreement") is made effective as of this 11
day of November 1999, by and between Phonoscope Ltd. ("Phonoscope"), a Texas
Limited Partnership, and ebaseOne Corporation ("ebaseOne"), a "_________"
corporation.
WHEREAS, Phonoscope is a telecommunications service provider which utilizes
its own extensive fiber optic cable network in the greater Houston area
("Phonoscope Network") to provide various telecommunications services, including
but not limited to private fiber networks, alternate access, and
videoconferencing,
WHEREAS, ebaseOne is an Application Service Provider ("ASP") servicing
business customers, and
WHEREAS, Phonoscope and ebaseOne are interested in cooperating to jointly
market and support the selling of application services.
NOW, THEREFORE, in consideration of the premises and the mutual promises
made herein, and in consideration of the representations, warranties, and
covenants contained herein, the parties agree as follows:
I. DEFINITIONS
1.1 Common Customer. A Common Customer is any end user who receives
application services supported by both Phonoscope and ebaseOne.
1.2 Common Services. Common Services are those services which Phonoscope
and ebaseOne agree to sell on a cooperative basis under the terms of
this Agreement, to specifically include communications transport links
between an ebaseOne Enterprise Application Center (EAC) and end user
locations.
1.3 Competitive Services. All services provided by Phonoscope to any
person, entity or group, directly or indirectly, that are provided to
any Service Provider.
1.4 Phonoscope Services. The transport link between the customer site and
the demarcation interface, which shall be located at the ebaseOne EAC
("Demarc"), plus any other telecommunications services provided by
Phonoscope, now or in the future, to the extent that such services are
not necessary for and included in, and are outside of, the scope of
the Common Services.
1.5 ebaseOne Services. Any application-related services including, but not
limited to application access, database management and storage, e-
mail, web sites, programming, etc. which are outside of the scope of
the Common Services.
1.6 Service Provider. Any person, group or entity that provides services
that are similar to or are in competition with ebaseOne Services.
II. TERM
2.1 Term. The Agreement will remain in effect for a term (the "initial
term") of three (3) years commencing on the date executed herein,
unless earlier terminated pursuant to the provision of this Agreement,
and shall be extended thereafter for one year periods ("Renewal
Term(s)") unless either party gives written notice of intent not to
renew at least ninety (90) days prior to the expiration of the Initial
Term or the Renewal term(s), as applicable.
2.2 Termination. If either party shall breach a material obligation under
this Agreement, the other party may give written notice of its
intention to terminate this Agreement, describing in reasonable detail
the breach. If the party charged with breach fails to cure the breach
within thirty (30) days after written notice of such breach, or if
such breach (other than one to pay money) is not capable of cure
within thirty (30) days and the party charged with breach fails to
commence cure procedures within such thirty (30) day period and
diligently prosecutes such procedures until the breach is cured, which
cure shall be completed no later than ninety (90) days following the
notice, then the noticing party may, while such failure continues and
in addition to all other remedies at law or in equity, terminate this
Agreement upon written notice.
III. RIGHTS AND OBLIGATIONS
3.1 Phonoscope will provide ebaseOne with full access to Simple Network
Management Protocol (SNMP) interfaces on all routers, gateways,
bridges, switches, and any other SNMP manageable equipment ebaseOne
requires to monitor the network for purposes of identifying problems
on the Phonoscope Network between the Demarc and the premises of the
customer. To the extent that Phonoscope alters, enhances or modifies
any of its network systems, Phonoscope will provide ebaseOne with such
technical information and support for ebaseOne to continue to perform
these activities on the Phonoscope Network between the Demarc and the
premises of the customer.
3.2 Phonoscope will provide all network facilities necessary to provide
the Common Services to the Common Customer from the Common Customer's
site to the Demarc.
3.3 (a) Phonoscope reserves the right to market, service and provide
without any limitations, any Phonoscope Services to any Common
Customer.
(b) Unless specifically required by law or regulation, Phonoscope may
not service or provide (including marketing, whether by solicitation,
promotion or otherwise) Competitive Services to any person, entity or
group to the extent, and if required, only to the extent that a law or
regulation specifically requires Phonoscope to
service and provide such services and precludes Phonoscope from
entering into an exclusive arrangement with respect thereto. However,
if required by law or regulation, Phonoscope will use its best efforts
not to enter into any direct or indirect arrangement with any Service
Provider or any other person, entity or group pursuant to which it
would (i) offer or sell Competitive Services on terms more favorable
than, or at rates lower than, those provided to ebaseOne under this
Agreement, (ii) receive from or under or by reason of any arrangement
with any Service Provider any revenue sharing, commissions, payment or
other benefits, or (iii) enter into any arrangement that would
preclude ebaseOne from contacting and soliciting any person, entity or
group. Phonoscope shall provide ebaseOne with a list of all persons,
entities and groups to whom it supplies Competitive Services on a
weekly basis, and shall not enter into any agreement that will
preclude it from doing so.
3.4 Customer Billing. For all Phonoscope Services provided to Common
Customers, Phonoscope will provide billing services directly to
ebaseOne, unless those Common Customers were customers actively doing
business with Phonoscope at the time that they became Common Customers
under this agreement. For customers already actively doing business
with Phonoscope at the time of becoming Common Customers, Phonoscope
will provide billing services directly to the Common Customers. If a
Common Customer being billed by both ebaseOne and Phonoscope requests
one billing entity, and if Phonoscope provides approval to ebaseOne in
writing, then ebaseOne will provide all billing services to the Common
Customer and Phonscope will provide billing services only to ebaseOne.
Notwithstanding the above, ebaseOne will provide billing services for
all ebaseOne Services directly to all Common Customers.
3.5 Phonoscope is responsible for all costs associated with performing its
obligations under this Agreement, including (without limitation) any
building use fees necessary to gain access to Common Customers'
premises.
3.6 Phonoscope is responsible for all trouble shooting on the Phonoscope
Network to the Demarc, when and as provided in Section 3.11.
3.7 Phonoscope and ebaseOne will conduct such joint marketing programs
relating to the Common Services, agree to allow the use of their names
and marks in connection therewith, and consult with each other
relating to marketing strategies as may be requested in good faith
from time to time.
3.8 ebaseOne will provide all software support and network management for
systems running within the ebaseOne EAC.
3.9 ebaseOne reserves the right to market, service and provide without any
limitations, any ebaseOne Services to any Common Customer.
3.10 ebaseOne is responsible for all costs associated with performing its
obligations under this Agreement.
3.11 ebaseOne is responsible for providing customer service and
troubleshooting directly to all Common Customers not being billed by
Phonoscope under the provisions of paragraph 3.4 above. This customer
service is to include the initial customer call, as it relates to the
ebaseOne provided services, a determination about the nature of the
problem, and a commitment to direct the call to the appropriate
personnel at ebaseOne or Phonoscope based on the initial
determination. For those Common Customers being billed by Phonoscope,
ebaseOne will be responsible for all customer service and
troubleshooting not related to the Phonoscope Network up to the
Demarc. Phonoscope will be responsible for all customer service and
troubleshooting related to the Phonoscope Network up to the Demarc,
after the initial determination is made by ebaseOne and the initial
customer call has been routed to Phonoscope.
IV. SEVERABILITY & WAIVER
4.1 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future law
effective during the term hereof, such provision shall be fully
severable. This Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a
part hereof, and the remaining portions hereof shall remain in full
force and effect, and shall not be affected by the illegal, invalid,
or unenforceable provision or by its severance herefrom.
4.2 Waiver. No failure to enforce any rights hereunder shall constitute a
waiver of such right.
V. ASSIGNABILITY
5.1 Assignability. Neither party may transfer or assign this Agreement
without the prior written consent of the other party, which shall not
be unreasonably withheld, and then only when such transfer can be
accomplished without interruption of services, except as provided
herein. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors and
assigns, it being expressly understood that Phonoscope's interest
herein may be pledged and mortgaged by Phonoscope without ebaseOne's
consent, and that any such lender or assignee shall have the right to
exercise all rights and remedies of Phonoscope herein.
VI. ARBITRATION
6.1 Arbitration. Except for the right of either party to this Agreement
to seek injunctive relief in a court competent jurisdiction, any
dispute or claim under this Agreement shall be settled by arbitration
in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, which
decision shall be final, conclusive, and binding on both parties. The
judgement on the award determined by the arbitrator(s) may be entered
in any court having jurisdiction thereof. The decision of the
arbitrator(s) must be based on and consistent with the Texas
substantive internal law without regard for the Texas Arbitration Act
or the Federal Arbitration Act. The arbitrator(s) shall award the
recovery of all costs and fees (including reasonable attorney's fees,
administrative fees and arbitrator's(s') fees) to the prevailing party
in any arbitration. This agreement to arbitrate shall be enforceable
only in the District Court of Xxxxxx County, Texas.
VII. NOTICE
7.1 Notice. All notices permitted or required hereunder shall be in
writing and shall be deemed to have been duly given on the earlier of
(i) the date received, or (ii) the third Business Day (meaning dates
when banks in Xxxxxx County, Texas are generally open for business)
after the same shall have been mailed by United States registered or
certified mail, return receipt requested, adequate postage prepaid,
addressed as follows:
If to ebaseOne: If to PHONOSCOPE:
EbaseOne Corporation Phonoscope Ltd.
0000 Xxxxxxxx Xxx. 0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxxx Xxxxxxx
Notice given by any other method (including facsimile, electronic
mail, etc.) shall be effective when actually received. Either party
may change its address for notice by notice to the other party in the
manner herein set forth.
VIII. ENTIRE AGREEMENT
8.1 Entire Agreement and Amendments. This Agreement contains the entire
Agreement between the parties respecting the matters set forth and it
shall be construed and enforced in accordance with the law of the
State of Texas. Each party warrants to the other that there is no
other agreement relating to the subject matter hereof. No
modification or amendment of this Agreement may be made except in
writing signed by both parties.
EXECUTED IN MULTIPLE COUNTERPARTS, each of which shall have the force and
effect of an original, by each party on the date set forth beside the signature
of each, the latter of which dates shall be the date of this Agreement.
PHONOSCOPE LTD.
11/12/99 By: /s/ Xx. Xxxxxxx X. Xxxxxxx
---------------------- -------------------------------------
(Date Signed) Xx. Xxxxxxx X. Xxxxxxx
General Manager
Phonescope Communications, Ltd.
EBASEONE CORPORATION
By: /s/ Xxxxxx Xxxx
______________________ -------------------------------------
(Date Signed) Name: Xxxxxx Xxxx
Title: Chief Financial Officer
