EXHIBIT 10.7
REVENUE SHARING AGREEMENT
This Revenue Sharing Agreement (this "Agreement") is made as of this June
30, 2000, by and between I-Link Incorporated, a Florida corporation having its
principal office at 00000 X. Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000
("I-Link"), and Red Cube International AG (formerly known as Cyber Office
International AG), a Swiss corporation having its principal office at
Xxxxxxxxxxxxxxxxx 000, 0000 Xxxxxx, Xxxxxxxxxxx ("Red Cube").
RECITALS
WHEREAS, Red Cube and I-Link are each in the business of providing enhanced
communication services through an advanced IP network and application
architecture;
WHEREAS, the Parties (as defined below) entered into that certain
Cooperation and Framework Agreement dated as of May 8, 2000 (as amended, the
"FRAMEWORK AGREEMENT") pursuant to which the Parties agreed to interconnect
their IP networks to be able to offer seamless and transparent services to their
respective customers in the United States and Europe. To achieve such objective,
(i) I-Link has granted to Red Cube a nontransferable license to use the Licensed
Technology (as defined in the Framework Agreement) and to access the I-Link
Network (as defined in the Framework Agreement) and (ii) Red Cube has granted to
I-Link a nontransferable license to access the Red Cube Network (as defined in
the Framework Agreement), in each case subject to the terms and conditions set
forth in the Framework Agreement; and
WHEREAS, the Parties have agreed in the Framework Agreement to enter into
this Agreement to set forth the terms and conditions of the payment and revenue
sharing arrangements between the Parties relating to the licensing of Licensed
Technology, the I-Link Network and the Red Cube Network;
NOW, THEREFORE, in consideration of the above recitals and mutual
agreements set forth in this Agreement, the Parties intending to be legally
bound, agree as follows:
1. DEFINITIONS. Defined terms used in this Agreement but not expressly defined
herein shall have the meanings set forth in the Framework Agreement. As used in
this Agreement, each of I-Link and Red Cube shall be referred to as a "Party"and
together as "Parties".
2. FEES. With respect to any and all network usage, services, products and/or
applications provided by one Party to the other, the Parties agree to pay the
respective costs and fees (the "Fees") mutually agreed upon between the Parties
from time to time.
3. INSPECTION RIGHTS. Each Party shall have the right to examine the other
Party's books and records and to meet with, and ask questions of, the other
Party's auditors and employees, to the extent reasonably necessary to verify and
confirm the calculation of the Fees payable pursuant to this Agreement and that
all fees payable by the other Party have been promptly paid; PROVIDED, that the
requesting Party gives the other Party a reasonable prior notice and the
examination and meetings are conducted during regular business hours.
4. PAYMENT TERMS.
4.1 PRICING.
(a) [***}
(b) [***]
4.2 BILLING. (a) Each Party shall invoice the other Party on or before the
forty fifth (45) day following the last day of each month for all Fees due and
payable for all products and services provided to the other Party during such
month. The invoice shall be prepared in accordance with the terms and conditions
set forth herein. All invoices shall be due and payable in full by wire transfer
within thirty (30) days during the first six months of the term of this
Agreement and ten (10) days thereafter, subject to Sections 4.2(b) and 4.3, any
discount or credit of any kind. Any requests for credit, deduction or adjustment
shall be processed in the form of a separate adjustment request as set forth in
Section 4.2(b) below. In the event a Party fails to pay a monthly invoice in
full within thirty (30) or ten (10) days of the date of the invoice, as the case
may be, the other Party shall provide a written notice to such party that if the
monthly invoice is not paid within five (5) days of the notice, the further
provision of services and products maybe suspended until such invoice shall have
been paid in full. In any event, services and products may not be suspended
pursuant to this Section 4.2(a) unless and until such written notice has been
provided to the non-paying Party.
(b) In the event a Party disagrees with the other Party's calculation of
the Fees set forth in the invoice, it shall provide a written notice to the
other Party of such disagreement and request an adjustment to such invoice (the
"ADJUSTMENT REQUEST") within thirty days (30), during the first six months of
the term of this Agreement, and thereafter, ten (10) days of receipt of such
invoice. Failure to provide an Adjustment Request within thirty (30) or ten (10)
days after receipt of an invoice, as the case may be, shall constitute an
acceptance of all Fees set forth in such invoice. The Adjustment
Notice shall describe in reasonable detail the disputing Party's reasons for
disagreement, the requested amount of adjustment and how such amount was
calculated. If the Party receiving the Adjustment Notice agrees with the
adjustment requested in the Adjustment Request, it shall provide an
acknowledgment of such agreement to the requesting Party within fifteen (15)
days of receiving the Adjustment Request and reflect the adjustment by way of
credit or otherwise to the Fees payable by such Party in the immediately
following billable month's invoice. If the Party receiving the Adjustment
Request disagrees with the request, the Parties shall attempt to resolve the
dispute. In the event the Parties cannot resolve the dispute within thirty (30)
days from the date of the invoice, the Parties shall jointly select an
independent third party nationally recognized accounting firm with established
expertise in telecommunications companies to resolve the dispute. The
determinations made by such independent third party shall be final and binding
on the Parties and the proper adjustment shall be reflected in the immediately
following invoice. The independent third party shall make the determination
within ten (10) days of engagement to resolve the dispute. All fees and expenses
of the independent third party shall be borne by the Party to whom the terms of
the resolution of the dispute were less favorable.
4.3 PREPAYMENT FOR SERVICES. The Parties have agreed in Section 5.2 of the
Framework Agreement that upon I-Link's substantial completion of Milestone No. 1
as set forth in Schedule B of the Framework Agreement, Red Cube shall pay I-Link
the Service Prepayment as prepayment for the use of the I-Link Network and
Licensed Technology. Subject to the terms of that certain Side Letter Agreement
dated as of the date hereof between the parties, the Parties hereby agree that
upon Red Cube's payment of the Service Prepayment to I-Link, any and all Fees
payable by Red Cube to I-Link under this Agreement shall be credited against the
amount of the Service Prepayment until the earlier of (x) the total amount of
the Fees payable by Red Cube to I-Link (net of any Per User Fees owed by I-Link
to Red Cube (as designated in the pricing list)) on a cumulative basis under
this Agreement equal the Service Prepayment or (y) June 30, 2001. Until such
time, Red Cube shall not owe I-Link any amount under this Agreement.
4.4 CURRENCY. All payments due hereunder shall be denominated and payable in
U.S. Dollars.
5. REPRESENTATIONS AND WARRANTIES.
5.1 REPRESENTATIONS AND WARRANTIES OF I-LINK. I-Link represents and warrants to
Red Cube as follows:
(a) I-Link has full power and authority to execute and deliver this
Agreement, and to perform its obligations hereunder. The execution, delivery and
performance by I-Link of this Agreement have been duly and validly authorized
and no additional corporate authorization or consent is required in connection
with the execution, delivery and
performance by I-Link of this Agreement. This Agreement constitutes the valid
and legally binding obligation of I-Link, enforceable against I-Link in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles whether or not
considered in a court of law or equity.
(b) Entering into this Agreement by I-Link does not result in any material
breach of any agreement to which I-Link is a party.
(c) No action or proceeding is pending or, in so far as I-Link knows, is
threatened against I-Link before any court, administrative agency or other
tribunal which would be reasonably likely to impact I-Link's right, power and
authority to enter into this Agreement or to otherwise carry out its obligations
hereunder.
5.2 REPRESENTATIONS AND WARRANTIES OF RED CUBE. Red Cube represents and
warrants to I-Link as follows:
(a) Red Cube has full power and authority to execute and deliver this
Agreement, and to perform its obligations hereunder. The execution, delivery and
performance by Red Cube of this Agreement have been duly and validly authorized
and no additional corporate authorization or consent is required in connection
with the execution, delivery and performance by Red Cube of this Agreement. This
Agreement constitutes the valid and legally binding obligation of Red Cube,
enforceable against Red Cube in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles whether or not considered in a court of law or equity.
(b) Entering into this Agreement by Red Cube does not result in any
material breach of any agreement to which Red Cube is a party.
(c) No action or proceeding is pending or, in so far as Red Cube knows, is
threatened against Red Cube before any court, administrative agency or other
tribunal which would be reasonably likely to impact Red Cube's right, power and
authority to enter into this Agreement or to otherwise carry out its obligations
hereunder.
6. TERM AND TERMINATION.
6.1 TERM. This Agreement shall be effective during the term of the Framework
Agreement and after expiration or termination of the Framework Agreement to the
extent I-Link has obligations to Red Cube pursuant to Section 12.1 and/or 12.3
(a)(x). In the event Red Cube obtains the Source Code and the license for its
use pursuant to Section 12.3(a)(x) and uses the Source Code for provision of its
services to end users located in
any countries located outside of North America, then Red Cube shall not be
required to make any further payments to I-Link under this Agreement. If the
Source Code is used by Red Cube for provision of its services to end users
located in any countries located in North America, then to the extent that Red
Cube utilizes the Source Code for the provision of its services to end users in
any countries located in North America, Red Cube shall continue to pay I-Link
for such license solely for the per minute US network costs, per user product
fees and such other fees associated with end users located in North America
pursuant to this Agreement, which Agreement shall survive for as long as and to
the extent that Red Cube utilizes the Source Code for provision of its services
to end users in any countries located in North America.
7. GENERAL PROVISIONS
7.1 NOTICES. All notices, consents, waivers, and other communications under
this Agreement shall be in writing and shall be given in accordance with Section
14.3 of the Framework Agreement.
7.2 ARBITRATION. Except to the extent provided in Section 4.2(b), each of the
Parties agrees to submit to binding arbitration any and all differences and
disputes related to this Agreement which may arise between them in accordance
Section 14.4 of the Framework Agreement.
7.3 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking to
compel arbitration or enforce a judgment under an arbitration based on any right
arising out of this Agreement may be brought against any of the Parties in the
courts of the State of New York, and each of the Parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any Party anywhere in the world.
7.4 ARTICLE AND SECTION HEADINGS; CONSTRUCTION. The headings of sections in
this Agreement are provided for convenience only and shall not affect its
construction or interpretation. All references to "Article", "Articles",
"Section" or "Sections" refer to the corresponding Article, Articles, Section or
Sections of this Agreement unless otherwise indicated. All words used in this
Agreement shall be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
7.5 ENTIRE AGREEMENT; MODIFICATION. This Agreement supersedes all prior
agreements between the Parties with respect to its subject matter and
constitutes (along with the Framework Agreement and such other agreements
contemplated thereby) a complete statement of the terms of the agreement between
the Parties with respect to its subject matter; provided that if there is a
conflict between the terms set forth in this Agreement
and in the Framework Agreement, the terms of this Agreement shall govern. This
Agreement may not be amended except by a written agreement executed by the Party
to be charged with the amendment.
7.6 ASSIGNMENTS; SUCCESSORS; NO THIRD-PARTY RIGHTS. (a) Neither Party may
assign any of its rights and/or obligations under this Agreement to any other
Party, and any such attempted assignment or transfer shall be void; provided,
however, that Red Cube may assign or transfer any of its rights and/or
obligations under this Agreement to any Affiliate of Red Cube with the prior
consent of I-Link, which consent shall not be unreasonably withheld or delayed.
(b) This Agreement shall apply to, be binding in all respects upon, and
inure to the benefit of the successors and permitted assigns of the Parties.
Nothing expressed or referred to in this Agreement shall be construed to give
any Person other than the Parties to this Agreement any legal or equitable
right, remedy, or claim under or with respect to this Agreement or any provision
of this Agreement. This Agreement and all of its provisions and conditions are
for the sole and exclusive benefit of the Parties to this Agreement and their
successors and permitted assigns.
7.7 SEVERABILITY. If any provision of this Framework Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement shall remain in full force and effect. If any provision of this
Agreement, or the application thereof to any person or entity or any
circumstance, is invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision; and (ii) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
7.8 GOVERNING LAWS. This Agreement shall be governed by the laws of the State
of New York without regard to conflicts of laws principles.
7.9 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original copy of this Agreement and all
of which, when taken together, shall be deemed to constitute one and the same
agreement.
7.10 CONFIDENTIALITY. Each Party hereto shall keep the terms of this Agreement
and all ancillary agreements entered into in connection with this Agreement
confidential, and neither Party shall disclose any such terms to third parties
without obtaining a prior written consent of the other Party, except for
disclosures to employees, affiliates and
representatives as may be necessary to carry out the terms of this Agreement or
as required by law.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
I-LINK INCORPORATED
By:
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Name:
Title:
RED CUBE INTERNATIONAL AG
By:
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Name:
Title:
