Joint Marketing and Warrant Agreement
Between XXXx.xxx and Qwest Xxxxx.Xxxxxxxxx
This Joint Marketing and Warrant Agreement (the "Agreement") is
made and entered into this 22nd day of May, 2000 by and between
XXXx.xxx, Inc., a Colorado corporation ("XXXx.xxx"), and Qwest
Xxxxx.Xxxxxxxxx LLC ("QC.S") a Delaware limited liability
company; hereafter collectively referred to herein as the
"parties" or individually and the "party."
Recitals
A. XXXx.xxx is engaged in the software development and sales of an
Internet based customer support and knowledge management product
known as KEWi. KEWi is sold through two primary business models:
First, as an Application Service delivered from the 3Si data
center in Denver CO; Second, by licensing the executable and
modules of the KEWi product directly to customers.
B. QC.S is an Application Service Provider ("ASP") providing
application management, application hosting, and full ASP
services to its customers.
C. QC.S and XXXx.xxx are currently negotiating and contemplate the
execution of a license to the KEWi product for use on the QC.S
corporate web site for community management, knowledge
management, and general Customer Relations Management (CRM)
capabilities.
D. QC.S has entered into a production agreement with BVP Media, Inc.
and XXXx.xxx to build a corporate web site unique to QC.S,
targeted at potential customers, current customers, and QC.S
employee communities.
E. QC.S and XXXx.xxx wish to create a relationship wherein QC.S will
use the KEWi product as a primary component of QC.S's internal
facing CRM architecture. Additionally, QC.S and XXXx.xxx will
begin exploration of the opportunities for QC.S to become a
channel partner of the KEWi product with the intent to enter a
further agreement for channel partnering.
Agreement
In consideration of the foregoing, the parties agree as follows:
1. Definitions. For the purposes of this Agreement:
1.1 "KEWi Product" means the Internet based customer support and
knowledge management product developed and owned by XXXx.xxx.
1.2 "Effective Date" is the date first indicated above.
1.3 "Confidential Information" refers to any and all technical and
non-technical information including any proprietary information,
techniques, algorithms, and software programs related to the
current, future and proposed products and services of each of the
parties, and includes, without limitation, the party's respective
information concerning research, engineering, financial
information, procurement requirements, purchasing, manufacturing,
customer lists, customer addresses (electronic or otherwise),
business forecasts, sales and merchandising, and marketing plans
and information. Confidential Information will not include
information to the extent that: (i) such information is or
becomes publicly available through authorized disclosure; (ii)
such information that was received by the receiving party without
restriction from a third party not under obligation not to
disclose it and otherwise not in violation of the disclosing
party's rights; or (iii) such information was in the possession
of the receiving party at the time of the disclosure or was
independently developed by employees or independent contractors
of the receiving party who did not have access to the
Confidential Information of the disclosing party.
2. Strategic Relationship.
2.1 QC.S agrees to use KEWi Product as its primary community
management and knowledge management software technology in the
implementation of the CRM architecture for the QC.S corporate web
site, so long as such product meets its technical and business
needs. The QC.S corporate web site is intended to serve
potential customers, customers and QC.S employee communities.
2.2 QC.S and XXXx.xxx agree to issue a joint press release announcing
the relationship described in this Agreement. The language of
the press release will be mutually agreed between the parties
prior to its issue. XXXx.xxx's parent corporation 3Si Holdings,
Inc. will file an 8K report with the SEC, as required by
applicable securities law.
2.3 QC.S agrees to act as a premier reference to other potential
customers and businesses for KEWi Product based solutions, so
long as the KEWi Product is performing in compliance with its
specifications and as reasonably expected by QC.S. As a premier
reference, QC.S will allow the use of mutually agreed quotes by
QC.S employees in connection with XXXx.xxx marketing and sales
materials, including but not limited to, audio, video, print,
Internet and other mediums as deemed appropriate by QC.S and
XXXx.xxx.
2.4 QC.S agrees to place XXXx.xxx on the QC.S corporate web site
through a "Powered By" logo for the KEWi Product, so long as QC.S
uses the KEWi Product. The "Powered By" logo will be displayed
on the web pages that utilize the KEWi Product technology in a
prominent fashion, provided that it shall not detract from the
artistic and navigation requirements of the web page and provided
further that it will be displayed according to the reasonable
standards promulgated by QC.S for its partner logos. The
"Powered By" logo will be an Internet link to the XXXx.xxx web
site. The XXXx.xxx web site will be maintained by XXXx.xxx in
compliance with all applicable laws and in a commercially
reasonable manner.
2.5 QC.S agrees to display XXXx.xxx as a partner in the partner
section of the QC.S corporate web site according to the standards
promulgated by QC.S.
2.6 At the request of QC.S, XXXx.xxx will include the QC.S logo and a
link to the QC.S web site according to the reasonable standards
promulgated by QC.S and in a mutually agreeable location at such
site.
3. Future Channel Partner Agreement. As part of this Agreement,
QC.S and XXXx.xxx agree to explore the opportunities for QC.S to
become a channel partner of XXXx.xxx for the purpose of
delivering KEWi Product based solutions through the QC.S sales
channels. This exploration will be undertaken in good faith with
a view towards the negotiation and execution of an agreement for
a channel partnering arrangement between the parties.
4. Warrants. XXXx.xxx hereby grants QC.S the irrevocable right to
acquire 211,212 shares of XXXx.xxx common stock at $1.89 per
share (the "Warrants"). The Warrants will be exercisable for 10
years from the Effective Date. At the Effective Date of the
Agreement XXXx.xxx had 2,112,128 shares of common stock issued.
4.1 QC.S has had a reasonable opportunity to ask questions of and
receive answers from XXXx.xxx concerning the Company, and all
such questions have been answered to the full satisfaction of
QC.S. No oral representations have been made or oral or written
information furnished to QC.S or its advisor(s) in connection
with the offering of the shares which were in any way
inconsistent with this Agreement, or inconsistent with
information which XXXx.xxx's parent corporation, 3Si Holdings
Inc. has filed with the SEC, as a publicly reporting company.
4.2 Because of QC.S's pre-existing business with the, XXXx.xxx and by
reason of QC.S's prior investment experience, QC.S has the
capacity to protect its own interests in connection with the
Warrants. The amount of the Warrants is not material as compared
with QC.S's total financial capacity. QC.S has had access to all
material and relevant information necessary to enable QC.S to
make an informed investment decision regarding the Warrants. All
information requested by QC.S from XXXx.xxx concerning the
business and financial condition of XXXx.xxx and the terms and
conditions of the acquisition of the Warrants has been furnished
to the extent XXXx.xxx possessed the information or could acquire
it without unreasonable effort or expense.
4.3 QC.S recognizes that the Warrants as an investment (if converted
to shares in XXXx.xxx) involve significant risks.
4.4 QC.S understands that it may not sell, offer for sale, assign,
pledge, hypothecate or otherwise transfer or encumber all or any
part of its interest in the Warrants except in compliance with
all applicable securities laws.
4.5 The Warrants are being issued to QC.S solely for QC.S's own
account for investment and not for the account of any other
person or entity, and not for distribution, assignment or resale
to others. No other person or entity has a direct or indirect
beneficial interest in the Warrants.
4.6 QCS is an Accredited Investor as that term is defined in
Regulation D promulgated pursuant to the Securities Act of 1933.
5. Confidential Information. Neither party will disclose any of the
other party's Confidential Information to any third party, or use
the other party's Confidential Information for its own benefit or
for the benefit of any third party, without the other party's
prior written consent. Both parties will disclose or make
available Confidential Information only to those of its employees
and consultants who have agreed to receive it under terms at
least as restrictive as those specified in this Agreement. Each
party commits to take reasonable measures to maintain the
confidentiality of the Confidential Information, but not less
than the measures it uses for its proprietary or confidential
information of similar type. Either party will immediately
notify the other of any unauthorized use or disclosure of the
other party's Confidential Information. The provisions of this
section shall survive for two (2) years after any termination of
this Agreement.
6. Term and Termination.
6.1 Term. This Agreement shall remain effective for two (2) years
following the Effective Date; provided however, that the
Agreement will automatically renew for subsequent one (1) year
periods unless terminated by written notice delivered to the
other party at least sixty days prior to the anniversary of the
Effective Date.
6.2 Default. Either party may terminate this Agreement for a
material breach by the other party that remains uncured for
thirty (30) days after the breaching party receives written
notice from the non-breaching party. In the case of any such
termination, rights to damages and other remedies for breach will
survive.
6.3 Effect of Termination. Upon termination of this Agreement both
parties will return all of the other party's Confidential
Information in its possession, or under its control.
7. Assignment. This Agreement and the rights and obligations
hereunder may not be assigned in whole or part by either party
without the prior written consent of the other, except that
either party may assign this Agreement to any person or entity
that buys or otherwise accedes to the ownership rights of fifty
percent (50%) or more of the assigning party's stock or all or
substantially all of the assigning party's assets.
8. Relationship of the Parties. The parties are independent
contractors. Nothing in this agreement is intended or will be
construed as making either party the partner, joint venturer, or
agent of the other. Each party will pay all expenses whatsoever
of its offices and activities and be responsible for the acts and
expenses of its employees and agents incurred in connection with
this Agreement.
9. Severability. If any part of this Agreement is found invalid or
unenforceable by a court or other tribunal, the remainder of this
Agreement will be given full force and effect and that part held
invalid or unenforceable will be amended so as to achieve as
nearly as possible the same legal and economic effect as the
original provision.
10. Notice. All notices and other communications required or
permitted under this Agreement must be in writing and will be
deemed as received upon personal delivery, upon receipt from a
courier service, or upon the fifth business day following mailing
by registered or certified mail. Notices for the parties shall
be addressed to:
For QC.S:
Xxxxxx Xxxxxxx
Qwest Xxxxx.Xxxxxxxxx LLC
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
For XXXx.xxx:
Xxxxx Xxxxxx
XXXx.xxx Inc.
0000 Xx. Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
11. Governing Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado
and the United States, including patent and copyright laws,
without reference to the conflict of law provisions of those
jurisdictions. The exclusive venue for all cases arising from or
related to this Agreement shall be the federal and state courts
in the State of Colorado.
12. Entire Agreement/Modification. This Agreement constitutes the
entire agreement between the parties and supersedes all prior
proposals, agreements, arrangements, and understandings between
the parties with respect to the subject matter hereof. Neither
this Agreement nor any provision hereof may be changed, waived,
discharged or terminated except in writing and signed by the
party against whom enforcement of same is sought. In the event
of any conflicts between the terms of this Agreement and those
appearing in any document incorporated herein by reference, the
terms and conditions of this Agreement shall take precedence.
The waiver or failure of either party to exercise in any respect
any right provided for in this Agreement shall not be deemed a
waiver of any further or future right of this Agreement.
IN WITNESS WHEREOF, the parties have executed this agreement to
be effective as of the Effective Date defined herein.
XXXx.xxx, Inc.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, President
Qwest Xxxxx.Xxxxxxxxx LLC
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Vice President
