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EXHIBIT 12C
MARKETING AND CONFIDENTIALITY AGREEMENT
This Marketing and Confidentiality Agreement ("Agreement") entered into
on the date shown below, by and between E-Commerce Exchange, LLC (hereinafter
referred to as "E-Commerce"), and Xxxxxxxxx00.xxx, Inc. (hereinafter referred to
as "Source"), shall set forth the terms and conditions under which E-Commerce
and Source shall market certain services of E-Commerce.
WHEREAS Source is in the business of providing websites and software
and as a part of its business it comes in contact with numerous persons and
businesses that could utilize the services marketed by E-Commerce; and
WHEREAS Source and E-Commerce wish to memorialize their agreement for
Source to provide E-Commerce with information, including, but not limited to,
phone numbers, addresses and e-mail addressees, and completed mini-applications
and on-line applications for all persons that Source comes in contact with as a
result of its business ("Leads") and for E-Commerce and Source to share any
income derived from the sale of E-Commerce products to the Leads.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1 - Term of Agreement.
1.01. This Agreement shall become effective July 2, 1999 and shall
continue in effect for one (1) year, unless sooner terminated as provided
herein. After the one (1) year time period has passed, this Agreement shall
continue to renew automatically on an annual basis. Each party shall have the
right to terminate the Agreement by providing the other party with at least
sixty (60) days written notice under the notice provisions of this Agreement.
Section 2 - Terms of the Agreement.
2.01. Source agrees to provide E-Commerce with Leads for the sole
purpose of soliciting them to provide them with merchant accounts, e-commerce
software and electronic processing equipment. During the term of this Agreement,
Source shall not provide Leads or any other information to any direct or
indirect competitor of E-Commerce that would allow any such competitor to
solicit, call on or sell any of the competitor's products to the Leads.
2.02. Source and E-Commerce will cooperate in joint marketing
activities including, but not limited to, opt-in e-mail listings, advertising
presence websites, presence in newsletter(s) and affiliate site marketing. The
intent of this section is, that in the event of any advertising by either party
here to, relating to the scope and purpose of this agreement that the other
party shall be included but not charged by the party initiating the advertising.
2.03. Nothing in this Agreement, with the exception of section 2.01,
shall be construed in any way to limit E-Commerce's or Source's ability to enter
into any kind of agreement or contract
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with any other person or entity. E-Commerce and Source may represent, perform
services for, and contract with as many additional persons or companies as they,
in their sole discretion, see fit as long as section 2.01 is not violated.
2.04. Both parties acknowledge that E-Commerce owns any rights in the
portfolio of business including, but not limited to, the merchant accounts and
lease rights, that result from the Leads submitted by Source to E-Commerce.
Source will provide all reasonable assistance to E-Commerce to perfect, protect
and transfer E-Commerce's right, title and interest in said items.
Section 3 - Payment
3.01. For each Lead that agrees to purchase a Services Package, as
defined below, E-Commerce shall pay Source the following:
For Leads provided to E-Commerce where E-Commerce must contact the
potential customer to sell the credit card processing goods and services (those
leads where no substantially filled out mini-application or on-line application
are submitted) two hundred and fifty dollars ($250.00) for each customer that
has A, B or C credit that purchases credit card processing services from
E-Commerce including, but not limited to, a fully funded lease at the rate of
forty-nine dollars and ninety-five cents ($49.95) per month for forty-eight (48)
months and a merchant account (the "Services Package") and one hundred
twenty-five dollars ($125.00) for each customer with D or lower credit that
purchases the Services Package.
For Leads provided to E-Commerce where Source provides a substantially
filled out mini-application or on-line application six hundred and twenty five
dollars ($625.00) for each customer that has A, B or C credit that purchases the
Services Package and three hundred dollars ($300.00) for each customer with D or
lower credit that purchases the Services Package.
If E-Commerce changes the package its offers to its customer to one different
than the lease at the rate of forty-nine dollars and ninety-five cents ($49.95)
per month for forty-eight (48) months E-Commerce and Source will negotiate in
good faith for a new payment schedule to pay Source for the Leads which will be
offered within one hundred twenty (120) days of the effective date of this
Agreement.
3.02. E-Commerce will provide Source with one free package per day,
with a retail value of fifteen hundred dollars ($1,500.00) consisting of the
Quickcommerce software and application fee, but not any statement fee, monthly
minimum fee or monthly gateway access fee, to be given away free as a promotion
by Source and E-Commerce.
3.03. Payments shall be made to Source for any amounts due under this
agreement on the first and the fifteenth of the month following the mutual
execution of this agreement.
Section 4 - Termination.
4.01. Notwithstanding any other provision or term in this Agreement,
either party may terminate this Agreement for a material breach of the terms of
this Agreement at any time by giving
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the other party written notice of termination. Said notice of termination and
the termination of this Agreement will be effective immediately upon delivery of
said notice of termination as set forth in this Agreement. Either party shall
have the option of rescinding the termination of this Agreement by taking
corrective action that cures the material breach, if such corrective action is
taken within thirty (30) days of the written notice of termination, and if there
are no other material breaches during such time period. Notwithstanding other
provision or term in this Agreement, upon the bankruptcy, insolvency or
dissolution proceedings of any party to this Agreement the other party shall
have the right to immediately cancel this Agreement by providing written notice.
Section 5 - Confidentiality
5.01. In reliance upon this agreement, each of the parties (acting as a
"Disclosing Party") may disclose to the other (acting as a "Receiving Party")
Confidential Information of the Disclosing Party. Receiving Party hereby
acknowledges and agrees that certain items of information currently in Receiving
Party's possession or later to come into Receiving Party's possession presently
constitute or shall constitute in the future valuable trade secrets or
proprietary business information of Disclosing Party. Such items of information,
which are herein collectively referred to as the "Confidential Information,"
shall include the following:
(i) Product formulae, customer requirements, and all other technical
data used or useful in Disclosing Party's business or related to any
research and development activities carried on by Disclosing Party.
(ii) All customer lists, accounting, costs, sales, and other
information relating to Disclosing Party's business.
(iii) All other information of any type or description whatsoever
which is protected by law as a trade secret or as proprietary
information of Disclosing Party, or which has been designated to
Receiving Party either orally or in writing as a trade secret or
proprietary information of Disclosing Party. For purposes of the
foregoing sentence, "trade secret" shall include, without limitation,
any formula, device, or compilation of information not generally known
in the industry which Disclosing Party uses in its business and which
gives Disclosing Party an opportunity to obtain an advantage over
competitors who do not know it.
(iv) All Confidential Information (as herein defined) of all
customers, contractors, and others with whom Disclosing Party had, has
or will have a business relationship learned or acquired by Receiving
Party during the course of or as a result of Receiving Party's
contractual relationship with Disclosing Party.
All of the foregoing information shall be deemed "Confidential
Information" until such time as it becomes generally known in the
industry by means other than improper disclosures or other improper
action or inaction made by Receiving Party.
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5.02. Receiving Party shall not, directly or indirectly, either during
the term of its relationship with Disclosing Party or thereafter, disclose or
use the Confidential Information other than in the business of or as directed
by, Disclosing Party without the prior written consent of Disclosing Party.
Receiving Party shall not, directly or indirectly, either during the term of its
relationship with Disclosing Party or thereafter, take, copy, or remove any of
the Confidential Information from Disclosing Party's premises, whether in the
form of manuals, printed sheets, reproductions, personal notes, or otherwise,
without the prior written consent of Disclosing Party.
5.03. Receiving Party shall at all times and forever safeguard and
protect all of the Confidential Information of Disclosing Party to prevent its
being exposed to, or taken by, unauthorized persons, and when entrusted to
Receiving Party will exercise its best efforts to assure its safekeeping.
5.04. Upon request of a Disclosing Party, Receiving Party will deliver
to Disclosing Party, within three (3) days of receiving such request, all
Confidential Information which is in the possession or control of the Receiving
Party.
5.05. The Receiving Party not shall provide any confidential
information to any third party without the prior written consent of the
Disclosing Party, which such consent shall be the sole discretion of the
Disclosing Party.
Section 6 - General Terms and Conditions
6.01. Assignment and Delegation. Neither party shall assign any rights
or delegate any duties hereunder unless permitted by this Agreement or by the
express prior written consent to the other which shall not be unreasonably
withheld.
6.02. Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, partner, employee or representative of any party
hereto.
6.03. Controlling Law. The validity, interpretation and performance of
this Agreement shall be controlled by and construed under the laws of the State
of Nevada.
6.04. Attorney's Fees. In any action arising from the alleged breach of
this Agreement, to enforce this Agreement, the final prevailing party will
recover its reasonable attorneys' fees, costs and expenses.
6.05. Failure to Object. The failure of either party to this Agreement
to object to or to take affirmative action with respect to any conduct of the
other which is in violation of the terms of this Agreement, shall not be
construed as a waiver of that conduct or any future breach or subsequent
wrongful conduct.
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6.06. No Partnership or Joint Venture. This Agreement does not
constitute and shall not be construed as constituting a partnership or joint
venture between Source and E-Commerce. Neither party shall have any right to
obligate or bind the other party in any manner whatsoever.
6.07. Validity of Provisions. If any part, term or provision of this
Agreement is declared and determined by any court or arbitrator to be illegal or
invalid, such declaration and determination shall not effect the validity of the
remaining parts, terms or provisions. Any illegal or invalid part, term or
revision shall be deemed not a part of this Agreement.
6.08 Notices. Each notice, request, demand or other communication by a
party to another party required or permitted by this Agreement ("Notice") shall
be in writing and shall be personally delivered, sent by U.S. certified mail,
return receipt requested (postage prepaid), by overnight commercial courier
(charges prepaid), or sent by facsimile transmission (but each such facsimile
transmission shall be confirmed by sending a copy thereof to the other party by
certified mail or commercial courier as provided herein no later than the
following business day), addressed to the address of the receiving party set
forth below or to such other address as such party shall have communicated to
the other parties in accordance with this Section. Any notice shall be deemed to
have been given when personally delivered, on the date of sending when sent by
facsimile transmission, on the second business day following the date of sending
when sent by certified mail or on the first business day following the date of
sending when sent by overnight commercial courier.
(a) If to E-Commerce, to:
E-Commerce Exchange, LLC
Attention Xxxxxx Xxxxxxxx
00000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax (000) 000-0000
(b) If to Source, to:
XxxXxxxxx00.xxx, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Fax (000) 000-0000
6.09. Representation. All parties have been advised and have had an
opportunity to consult with legal counsel of their choosing regarding the force
and effect of the terms set forth herein. This Agreement shall be deemed to be
jointly prepared by the parties and therefore any ambiguity or uncertainty shall
be interpreted accordingly.
6.10. Authority. Each individual executing this Agreement represents
that he/she is duly authorized to execute and deliver this Agreement on behalf
of the corporation or other entity which he/she represents. This document is
binding upon the representative corporation or other entity in accordance with
its terms.
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6.11. Headings. The various headings in this Agreement are inserted for
convenience only and shall not affect this Agreement or any portion thereof.
6.12. Counter-parts. This Agreement may be executed in two or more
counter-parts, each of which shall be deemed an original, all of which together
shall constitute one and the same instrument.
The parties have executed this Agreement on the dates indicated
opposite their signatures.
E-COMMERCE EXCHANGE, LLC
Dated: July 13, 1999 By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx, Chief Operating Officer
XXXXXXXXX00.XXX, INC.
Dated: By:
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J. Xxxxxx Xxx, President and Chief Executive Officer
XXXXXXXXX00.XXX, INC.
Dated: July 13, 1999 By: /s/ Xxxxxxx X. Law
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Xxxxxxx X. Law, Secretary and Treasurer
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