EXHIBIT 10.2
** Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Rule 406 of the
Commission.
MARKETING SERVICES AGREEMENT
THIS MARKETING SERVICES AGREEMENT (this "Agreement") is made between
OWNERTEL, INC. ("OwnerTel") and TRANSNET CONNECT, INC. ("TransNet") on
September 21, 2001 (the "Effective Date"). In consideration of the premises and
the mutual covenants and agreements set forth herein and other good and
valuable consideration, the parties agree as follows:
SECTION 1. SERVICES.
(a) MARKETING SERVICES. Subject to the terms and
conditions of this Agreement, TransNet will exclusively retain
OwnerTel to provide marketing services with respect to TransNet's
reselling of local and long distance telephone and internet service.
Nothing contained in this agreement shall be construed to impose an
exclusivity obligation upon OwnerTel with regard to the provision of
services.
(b) MARKETING MATERIALS. No marketing materials shall be
used without the prior written approval of TransNet. TransNet also has
the right to provide to OwnerTel or approve guidelines regarding
marketing activities conducted on behalf of TransNet. OwnerTel shall
instruct and supervise its representatives in the use of such
marketing materials and in adherence to such guidelines. OwnerTel and
its representatives shall not deviate from the materials and
guidelines provided or approved by TransNet.
(c) QUALITY AND COMPLIANCE. OwnerTel shall (i) perform
its obligations hereunder with care, skill and diligence in accordance
with applicable standards recognized in OwnerTel's industry; (ii)
comply fully with the quality control standards provided by TransNet;
and (iii) obtain all necessary consents, licenses, releases or other
authorizations for the use of all materials in the work produced
hereunder.
(d) OWNERTEL RESPONSIBILITIES. OwnerTel: (i) will not
misrepresent its relationship with TransNet; (ii) is solely
responsible for its own costs and expenses of performance hereunder
except as specifically herein set forth herein; (iii) shall be solely
responsible for the acts and omissions of its employees and shall have
sole responsibility for their supervision, direction and control, as
appropriate; and (iv) shall conduct business in a manner that reflects
favorably at all times on the reputation of OwnerTel.
(e) LIMITATIONS OF LIABILITY AND INDEMNIFICATION.
(i) OwnerTel agrees to indemnify and hold
TransNet and its affiliates harmless from any and all claims
damages and liabilities (including reasonable attorneys fees
and costs) arising or resulting directly from any loss or
damage to TransNet due to a material breach by OwnerTel of
any representation, covenant or warranty contained in this
Agreement or the grossly negligent act or omission
or willful misconduct of OwnerTel, its officers, agents and
employees in performance of its duties under this Agreement.
(ii) TransNet agrees to indemnify and hold
OwnerTel, its parent and affiliates harmless from any and all
claims, damages and liabilities (including reasonable
attorneys fees and costs) arising or resulting directly from
any loss or damage to OwnerTel due to the material breach by
TransNet of any representation, covenant or warranty
contained in this Agreement or from the grossly negligent act
or omission of TransNet, its officers, agents and employees
in performance of its duties under this Agreement. TransNet
retains sole responsibility for customer satisfaction and
compliance with all applicable federal, state and local laws
and regulations regarding all products or services provided
to Recipients by TransNet. TransNet shall defend, indemnify,
and hold OwnerTel, its shareholders, officers and directors,
harmless from and against any and all losses, damages,
claims, liabilities, costs and expenses (including reasonable
attorneys' fees) arising out of or relating to the products
or services that TransNet provides.
SECTION 2. COMPENSATION.
(a) TransNet agrees to pay OwnerTel the following
amounts on all services sold by OwnerTel:
(i) ** of the difference between the buy rate
and the sell rate of long distance and local telephone service
**;
(ii) ** for Internet service.
TransNet will make all of the above payments on a monthly basis.
(b) During the term of this Agreement, OwnerTel agrees
that TransNet's current long distance telephone customer base, and all
new customers of TransNet, will participate in OwnerTel's Promotional
Stock Program (the "Program") on the same terms and conditions as
customers of OwnerTel; provided that, OwnerTel agrees to apply the
Program retroactively to TransNet's customers for purposes of
determining the number of shares they shall receive under the Program.
Prior to OwnerTel's registration statement on Form SB-2 (the
"Registration Statement") becoming effective, TransNet shall deliver
to OwnerTel a detailed schedule containing the name and address of
TransNet's customers and the number of OwnerTel shares each such
customer has earned under the Program. OwnerTel agrees to issue its
shares of common stock to TransNet's customers as soon as practicable
after its Registration Statement becomes effective. Notwithstanding
the foregoing, TransNet acknowledges that the Program is dependent
upon the Registration Statement becoming effective, and if the
Registration Statement shall not become effective, for any reason,
this provision of this Agreement shall be null and void; however, the
remainder of this Agreement shall remain in full force and effect.
SECTION 3. CONFIDENTIALITY.
(a) Each party agrees to maintain in confidence any
information that it may obtain from the other in the course of this
Agreement. Each party shall use such information solely for the
purposes contemplated by this Agreement and, except as
** Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Rule 406 of the
Commission.
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required by applicable law or regulation, shall not disclose such
information to any third party. The foregoing does not apply to
information that (i) is, at the time of disclosure to the recipient,
or thereafter becomes, through no act or omission of the recipient, a
part of the public domain; (ii) was in the recipient's lawful
possession without an accompanying secrecy obligation prior to the
disclosure; (iii) is hereafter lawfully disclosed to the recipient by
a third party without an accompanying secrecy obligation or breach of
any duty or agreement by which such third party is bound; or (iv) is
independently developed by the recipient. TransNet and OwnerTel shall
also be permitted to disclose information (A) to auditors, examiners
and professional advisors; and (B) as required by law, subpoena or
court order. Notwithstanding if such information is or becomes
lawfully in the public domain, the receiving party shall maintain the
confidentiality of any information which includes the identities of
the disclosing party's consumers according to this Section. Breach of
this section shall give rise to irreparable injury, inadequately
compensable in damages. Accordingly, either party may seek injunctive
relief against the breach or threatened breach by the other of either
such section, in addition to such legal remedies as may be available,
including the recovery of damages.
(b) To the extent that OwnerTel receives nonpublic
personal information concerning consumers, OwnerTel agrees: (i) to
maintain the confidentiality of such information; (ii) not to, in any
event, sell, rent or lease such information to any third party; (iii)
not to use or reproduce such information for any purpose other than as
contemplated by this Agreement or as otherwise permitted by applicable
regulation; and (iv) to return any such information to TransNet on
demand. Nonpublic personal information includes, without limitation,
all information consumers provide in an application for TransNet's
products or services.
(c) Section 3 shall survive termination of this
Agreement.
SECTION 4. TERM AND TERMINATION. The initial term of this
Agreement shall be for a period of one (1) year commencing on the Effective
Date. Thereafter, this Agreement shall be automatically renewed for successive
terms of one (1) year each unless either party shall give the other written
notice of non-renewal at least ninety (90) days prior to renewal.
Notwithstanding the foregoing, OwnerTel or TransNet may terminate this
Agreement in the event that:
(a) proceedings in bankruptcy are instituted by or
against the other party, or the other party terminates its business
activities for any other reason; or
(b) there is a material breach of, or material failure
to comply with, any of the terms or conditions of this Agreement by
the other party which breach or failure is not remedied within thirty
(30) days after notice of such breach or failure.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each Party
represents that it has full power to enter into and complete the transactions
required hereunder, and that this Agreement is enforceable against it in
accordance with its terms, and that the activities contemplated hereunder do
not conflict with or constitute a breach of or default under any contracts or
commitments to which it is a party.
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SECTION 6. RELATIONSHIP OF PARTIES. The relationship of the
parties hereunder shall be that of independent contractors. Neither Party shall
be deemed an employee, agent, joint venturer or partner of the other and
neither party shall have the power or authority to bind or obligate the other.
SECTION 7. NOTICES. Notices hereunder shall be given in writing
and will be deemed to have been given (a) on the date delivered in person, (b)
on the date indicated on the return receipt if mailed postage prepaid, by
certified or registered U.S. mail, with return receipt requested, (c) on the
date transmitted by facsimile, if sent by 5:00 p.m. Eastern Time, on a regular
business day and confirmation of receipt thereof is reflected or obtained, or
(d) if sent by overnight courier service, on the next business day after
delivery to the courier service (in time for and specifying next day delivery).
In each case such notices shall be sent to the address or facsimile number set
forth below. Either party may change such address by written notice to the
other party hereto.
If to OwnerTel: OwnerTel, Inc.
#176
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxx
If to TransNet: TransNet Connect, Inc.
Xxxxx 000
0000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxx
SECTION 8. ASSIGNABILITY. This Agreement and the rights and
obligations hereunder may not be assigned by either party without the prior
written consent of the other party.
SECTION 9. FORCE MAJEURE. Neither party will be liable for any
failure to perform any obligation (other than payment obligations) hereunder,
or from any delay in the performance thereof, due to causes beyond its control,
including without limitation disputes of whatever nature, acts of God, public
enemy, acts of government, failure of telecommunications or other calamity.
SECTION 10. AMENDMENT. This Agreement may be amended at any time
by mutual consent of the parties hereto, with any such amendment to be invalid
unless in writing and signed by Transnet and OwnerTel.
SECTION 11. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the state of Georgia.
SECTION 12. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding by and between Transnet and OwnerTel with respect
to the services to be provided, and no representations, promises, agreements or
understandings, written or oral,
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relating to the services to be provided by Transnet not contained or referenced
herein or therein shall be of any force or effect.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which shall be considered one and the same instrument.
[Remainder of page intentionally left blank]
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[Signature page to Marketing Services Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
TRANSNET CONNECT, INC.
By /s/ Xxxx Xxxxx
--------------------------------
Name Xxxx Xxxxx
----------------------------
Title President
---------------------------
OWNERTEL, INC.
By /s/ Xxxxxxx X. Head, III
--------------------------------
Name Xxxxxxx X. Head, III
----------------------------
Title President
---------------------------
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