DISTRIBUTION AGREEMENT
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This Distribution Agreement ("Agreement") is made this 8th day of
September 1999, by and between XXXX-XXX.XXX, Inc., a Florida corporation
("PHON-NET"), and Wazzu Corporation. ("Distributor").
RECITALS
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WHEREAS, PHON-NET is the owner of a software program called DIRECT
CONNECT ("Software").
WHEREAS, the Software permits calls to be made, using a modem and
single touch tone phone line, from the Internet, by causing a temporary
interruption of the Internet connection, and placing a call to a designated
number, determined by a limited license account, allowing the computer user to
engage in conversation while viewing their (business) web page, using a phone
and regular phone call, with a sales or marketing agent or any designate of the
web site owner or agent, and to re-establish connection by clicking an icon on a
web page or by whatever means currently exist within the Software, now or later,
and to allow computer user to utilize an e-coupon/information feature, a voice
mail feature, and any other feature that may be available now or later.
WHEREAS, the management of Distributor has sales and marketing
expertise.
WHEREAS, PHON-NET desires to engage Distributor as the non-exclusive
value added reseller/distributor of the Software throughout only the U.S.A.. All
other countries need prior written approval from PHON-NET to Distributor.
NOW, THEREFORE, the parties have agreed as follows:
1. APPOINTMENT. PHON-NET grants Distributor the non-exclusive right to
distribute, market and license the Software throughout the U.S.A. only, in
accordance with the terms and conditions of this Agreement.
2. OBLIGATIONS OF XXXX-XXX.XXX
A) PROMOTIONAL MATERIAL. PHON-NET will provide Distributor with draft
marketing materials for use in marketing, installing and using the
Software, without charge to Distributor.
B) BUG FIXES. PHON-NET will provide and handle all bug fixes for the
Software, without charge to Distributor or any of its customers.
C) ENHANCEMENTS. PHON-NET, at its sole discretion, may provide
Distributor with enhancements for the Software, without cost to
Distributor or any of its customers.
D) TRAINING. PHON-NET will provide Distributor with technical training
without charge as requested from time to time by Distributor. All
technical support provided by PHON-NET to all customers.
E) RESERVED RIGHTS. PHON-NET reserves the right to substantially modify
the Software for the purpose of eliminating any code, which infringes
any third party's proprietary rights. In such event that a
modification is made by PHON-NET, PHON-NET agrees to provide such
number of free limited license units of Software that Distributor can
provide copies to all customers who currently hold a limited license
unit of Software that has not expired prior to the date the Software
is modified.
F) TECHNICAL REQUIREMENTS. PHON-NET shall ensure the technical
requirements for installing and running the Software and all technical
support for each customer are performed and provided by PHON-NET.
G) SOFTWARE SUPPORT. PHON-NET will provide full and complete Software
Support to all customers of the Software by providing a toll free
telephone number that will be staffed for a minimum of eight (8) hours
per day, seven days per week.
3. OBLIGATIONS OF DISTRIBUTOR. Distributor will bear all expenses for its
operation and staff. Distributor will use best efforts to advertise and
promote the Software, including but not limited to the method of promotion
as set out in EXHIBIT "C", at Distributor's expense, and to license the
Software. Distributor may prepare marketing materials, which PHON-NET and
Distributor jointly shall review and approve prior to use. Any and all
marketing materials created and prepared by or for Distributor shall be
exclusively owned by PHON-NET, and any of its other value added resellers
or any third party shall have rights to those materials developed and owned
by PHON-NET, including, but not limited to, intellectual property rights
such as copyrights.
4. DEMONSTRATION COPIES. PHON-NET will provide 5 samples licenses for
demonstration purposes for the term of this agreement.
5. PRICE AND PAYMENT. PHON-NET will sell to Distributor and Distributor will
purchase from PHON-NET, Software on the following terms and conditions:
a) Orders and payment for the Software shall be as follows:
i) Distributor shall acquire limited use license for the Software as
set forth in EXHIBIT "A" attached hereto.
ii) The parties to this Agreement contemplate that the customer of
Distributor shall be charged an installation charge, monthly
charge and transaction charge as set forth in EXHIBIT "B".
Distributor shall pay PHON-NET the amounts set forth in EXHIBIT
"B" for each limited license unit of Software electronically
activated by PHON-NET, there being no charge for any monthly
charge or transaction fee, if any, that Distributor may charge
its customers. Distributor shall make payment for the Software by
check within ten (10) days of the end of the month for the
installation charges on new sales of Software licenses activated
by PHON-NET made in the prior calendar month. For example,
Distributor shall make payment on October 10, 1999 for charges
invoiced by each party in the month of September 1999. PHON-NET
may change the charges set forth on EXHIBIT "B" upon thirty (30)
days prior written notice. Distributor must disclose all final
sale figures and revenues to PHON-NET.
b) PHON-NET may add or delete Products from EXHIBIT "A" from time to
time; provided, however, Distributor shall be given fifteen (15) days
notice of any Software added or deleted, or changes in the license
thereto.
c) PHON-NET shall electronically activate the Software in the form of
blank license accounts, as required by Distributor's sales, and that
means to distribute, electronically by e-mail and manually by phone or
fax or mail or any other applicable means, all purchased accounts will
be provided to Distributor by PHON-NET. Orders may be placed by the
Distributor for any quantities at any time, provided such orders are
set forth in writing. PHON-NET shall confirm the orders with
Distributor prior to electronically activating the customer's license.
Distributor shall have the right to cancel all or any portion of any
order prior to electronic activation of the customer Software
license(s). PHON-NET shall use its best efforts to electronically
activate each customer's license account as soon as practicable, but
in all cases within 72 hours of date of order provided PHON-NET has
the appropriate client information. In the event that PHON-NET does
not have the ability to electronically activate the Software license
within 72 hours, it shall immediately inform Distributor in writing,
and Distributor shall pay the license fee to PHON-NET when such
Software is electronically activated.
6. PRODUCT PROMOTION; COSTS OF PROMOTION. Distributor agrees to take all steps
reasonably necessary to continue to protect the corporate image of the
Software and of the name of PHON-NET. Distributor agrees to provide
PHON-NET with all promotional and advertising materials that Distributor
may produce for the advertisement, promotion or sale of the Software prior
to the use thereof. PHON-NET has the right, in its sole discretion, to
approve or disapprove of the use of the promotional and advertising
materials. Distributor agrees to use no other promotional and advertising
materials relating to the Software unless it has first obtained the consent
to use such promotional and advertising materials from PHON-NET.
Distributor agrees to bear all costs and expenses related to the
promotional and advertising materials.
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7. LIMITATION OF LIABILITY. In no event shall either party be liable for any
indirect, special or consequential damages (including but not limited to
loss of anticipated profits) in connection with or arising out of this
Agreement or the furnishing, functioning, use, distribution or marketing of
the Software or any related item or service provided by PHON-NET or
Distributor.
8. TERM AND TERMINATION. This Agreement shall not be terminated or subject to
cancellation by either party for before September 8th, 2000, except as
provided for herein below.
a) Either party has materially defaulted on or breached any section of
this Agreement which has not been cured within ten (10) business days
of notice of the material default or breach alleged by the notifying
party;
b) Either party becomes insolvent, bankrupt or the subject of a
receivership;
c) Either party makes a general assignment for the benefit of creditors;
d) Mutual consent of the parties;
9. RELATIONSHIP OF PARTIES. Neither PHON-NET nor Distributor is authorized to
oblige the other party or act in the name of the other party other than as
stated in this Agreement. The Agreement does not create a joint venture,
partnership or association.
10. PROPRIETARY RIGHTS.
a) OWNERSHIP BY PHON-NET. The parties agree that PHON-NET owns all
proprietary rights, including copyrights, patents and trade secrets,
in and to the Software and that this Agreement does not transfer
ownership of any of these rights.
b) LIMITATION ON USE OF SOFTWARE. Distributor will use all computer
programs, documentation and information consisting of or containing
proprietary information related to the Software solely for the purpose
of performing under this Agreement if provided by PHON-NET.
Distributor will not modify or cause others to modify the Software,
without the prior written consent of PHON-NET.
11. INDEMNIFICATION. PHON-NET shall indemnify and hold harmless Distributor
against any and all liability, suits, claims, losses, damages and
judgements, and shall pay all costs (including reasonable attorney's fees)
and damages to the extent that such liability, costs or damages arise from
a claim that the Software infringes any third party's United States patent
or copyright. PHON-NET, at its option, may defend or settle any such
action, or any part thereof brought against Distributor arising from a
claim that such infringement as described herein has occurred. PHON-NET's
obligations under this Section are conditioned upon its being given (i)
prompt notice of each such claim received in writing by Distributor and
(ii) the right to control and direct the investigation, defense and
settlement of each such claim. The provisions of this Section shall survive
any termination of this Agreement.
12. NO WARRANTY TO DISTRIBUTOR. PHON-NET PROVIDES DISTRIBUTOR NO WARRANTIES,
CONDITIONS, GUARANTEES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES, CONDITIONS, GUARANTEES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR IN WRITING, REGARDING THE
SOFTWARE, ITS PERFORMANCE OR OTHERWISE RELATED TO THIS AGREEMENT.
13. ATTORNEY'S FEES. The parties will bear their own legal fees and costs in
connection with the disputed, negotiations and document preparation leading
up to and covered by this Agreement. If any party institutes any action or
proceeding in connection with this Agreement, the prevailing party shall be
entitled, in addition to such other relief as may be granted, to be
reimbursed by the losing party for all costs and expenses incurred thereby,
including, but not limited to, reasonable attorney's fees (including
pre-judgement and post-judgement) and costs.
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14. ENTIRE AGREEMENT. Except as provided herein, this Agreement is the entire
agreement between the parties, and all prior negotiations, representations
or agreements between the parties are merged into this Agreement.
15. SEVERABILITY. The invalidity, in whole or in part, of any provision of this
Agreement shall not affect the validity or enforceability of any other of
its provisions.
16. HEADINGS. The paragraph or section headings in this Agreement are used for
convenience only. They form no part of this Agreement and are in no way
intended to alter or affect the meaning of this Agreement.
17. APPLICABLE LAW; VENUE. This Agreement shall be construed in accordance with
and all disputes hereunder shall be governed by the laws of the State of
Florida and the United States of America. All actions or proceedings
connected with this Agreement shall be brought only in the Federal court of
the United States of America. The parties, including any assignee of this
Agreement, hereby consent to the jurisdiction and venue of such courts.
18. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be an original, but all of which shall constitute one
and the same instrument.
19. BINDING EFFECT. This Agreement shall bind and inure to the benefit of the
heirs, personal representatives, successors and permitted assigns of the
parties.
20. NOTICES.
a) COMMUNICATION. All notices, requests, demands, or other communications
under the Agreement shall be in writing. Notice shall be sufficiently
given for all purposes as follows:
i) PERSONAL DELIVERY. When personally delivered to the recipient.
Notice is effective on delivery.
ii) FIRST-CLASS MAIL. When mailed first class to the last address of
the recipient known to the party giving notice. Notice is
effective three (3) mail delivery days after deposit in a United
States Postal Service office or mailbox.
iii) CERTIFIED MAIL. When mailed certified mail, return receipt
requested. Notice is effective on receipt, if delivery is
confirmed by a return receipt.
iv) OVERNIGHT DELIVERY. When delivered by overnight delivery Federal
Express/Airborne/United Parcel Service/DHL WorldWide Express,
charges prepaid or charged to the sender's account. Notice is
effective on delivery, if delivery is confirmed by the delivery
service.
v) TELEX OR FACSIMILE TRANSMISSION. When sent by telex or fax to the
last telex or fax number of the recipient known to the party
giving notice. Notice is effective on receipt, provided that (a)
a duplicate copy of the notice is promptly given by first-class
or certified mail or by overnight delivery, or (b) the receiving
party delivers a written confirmation of receipt. Any notice
given by telex or fax shall be deemed received on the next
business day if it is received after 5:00 p.m. (recipient's time)
or on a nonbusiness day. Addresses for purposes of giving notice
are as follows:
Distributor: WILL GET THIS INFORMATION
PHON-NET: Mr. Xxxxx Xxxxxxx, President
XXXX-XXX.XXX
000-000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Facsimile (000) 000-0000
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b) Any correctly addressed notice that is refused, unclaimed, or
undeliverable because of an act or omission of the party to be notified
shall be deemed effective as of the first date that said notice was
refused, unclaimed, or deemed undeliverable by the postal authorities,
messenger, or overnight delivery service.
c) Any party may change its address or telex or fax number by giving the
other party notice of the change in any manner permitted by this
Agreement.
21. AMENDMENT. This Agreement and the exhibits set forth the entire
understanding of the parties with respect to the subject matter of this
Agreement and supersede all prior agreements, understandings and
negotiations with respect to the subject matter hereof. Any amendment to
this Agreement must be in writing and signed by both parties.
22. WAIVER. Failure by either party to enforce at any time or for any period of
time the provisions of this Agreement shall not be construed as a waiver of
such provisions, and shall in no way affect such party's right to later
enforce such provisions.
23. EXHIBITS. Each of the Exhibits described in this Agreement shall be deemed
to be incorporated herein by this reference as if fully set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
to be effective as of the date and year first above written.
"PHON-NET"
XXXX-XXX.XXX, Inc.,
A Florida Corporation
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President and CEO
"Distributor"
WILL GET THIS INFORMATION
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, CEO
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EXHIBIT A
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SOFTWARE LICENSE
XXXX-XXX.XXX DIRECT CONNECT SOFTWARE LICENSE AGREEMENT
BY INSTALLING OR USING DIRECT CONNECT SOFTWARE (THE "PRODUCT"), THE INDIVIDUAL
OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS
BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE
TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE.
1. LICENSE AGREEMENT. As used in this Agreement "Licensor" shall mean
XXXX-XXX.XXX except under the following circumstance: if Licensee acquired the
Product through an authorized Distributor or as a bundled component of a third
party product or service, then such third party and/or Distributor shall be
Licensor.
2. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, or
in another XXXX-XXX.XXX agreement to which Licensee is a party, Licensee may
not: (i) modify or create any derivative works of the Product or documentation,
including translation or localization; (ii) decompose, disassemble, reverse
engineer, or otherwise attempt to derive the source code for the Product; (iii)
redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer
rights to the Product; (iv) remove or alter any trademark, logo, copyright or
other proprietary notices, legends, symbols or labels in the Product; or (v)
publish any results of benchmark tests run on the Product to a third party
without XXXX-XXX.XXX's prior written consent.
3. FEES. Purchase of the Product is for 12 months. Licensee will be notified of
expiry after 11 months with option to renew at whatever current market price is.
4. TERMINATION. Without prejudice to any other rights, Licensor may terminate
this Agreement if Licensee breaches any of its terms and conditions. Upon
termination, Licensor may delete license account.
5. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights
in the Product shall remain in XXXX-XXX.XXX and/or its suppliers. Licensee
acknowledges such ownership and intellectual property rights and will not take
any action to jeopardize, limit or interfere in any manner with XXXX-XXX.XXX's
or its suppliers' ownership of or rights with respect to the Product. The
Product is protected by copyright and other intellectual property laws and by
international treaties. Title and related rights in the content accessed through
the Product is the property of the applicable content owner and is protected by
applicable law. The license granted under this Agreement gives Licensee no
rights to such content.
6. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED WITH A 365 DAY LICENSE, AND
WITH WARRANTIES THAT IT IS FREE OF DEFECTS, AS OUTLINED IN THE OWNER/TECHNICAL
MANUAL. MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. SHOULD THE
PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSOR SHALL ASSUME THE RESPONSIBLITY
OF CORRECTING ANY SUCH DEFECT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER
EXCEPT UNDER THIS DISCLAIMER.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF
OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS
OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL
OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF,
AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER
ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE
FEES LICENSEE PAID FOR THIS LICENSE (IF ANY).
8. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof. (b) This Agreement may be
amended only by a writing signed by both parties. (c) Except to the extent
applicable law, if any, provides otherwise, this Agreement shall be governed by
the laws of the U.S.A. and CANADA, excluding its conflict of law provisions.
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EXHIBIT B
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Limited (one year) software license unit - $99.00 U.S. Dollars /each
Installation Charge - $0.00 U.S. Dollars
Monthly Charge - $0.00 U.S. Dollars
Per Transaction Charge $0.00 U.S. Dollars
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EXHIBIT C
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Distributor being a source of web page development and e-commerce solutions
for small and medium businesses in the U.S.A., Distributor agrees to
add the DIRECT CONNECT icon software limited license to all business
customer web pages (main index page) in Distributor's database for a
period of six months and to market for sale to said businesses for
continued limited license service of the Software.
XXXX-XXX.XXX agrees to supply required number of limited licenses,
numbering approximately 20,000 (not to exceed 25,000), for a period of
six months, to Distributor's customers, to aid in promotion and sale of
the Software.
XXXX-XXX.XXX and Distributor agrees to share and use the list of businesses
that receive the six month limited license Software for use in
promotion of the Software.
Thisagreement is based on providing limited license service to all members
of Distributor's database for an initial six months. Distributor agrees
to invoice all businesses that receive the limited license service,
within 30 days of the limited license service installation.
Promotion is not a six-month free limited license, but constitutes an
opportunity for businesses to receive 18 months of service for the cost
of twelve months of service. However businesses will not be obligated
to purchase a Software limited license for the installation and use of
the Software limited license in the first six months.
Any limited license issued to businesses and not purchase after the elapse
of six months, under the terms of this contract will be terminated. The
license issues under the terms of "EXHIBIT C" may be terminated at any
time it is determine that Distributor is unable to invoice businesses
or properly promote the sale of the software.
