EXHIBIT 10.6 - Resale and Distribution Agreement
--------------------------------------------------------------------------------
PORTIONS OF THIS DOCUMENT CONTAINING "XXXXXX" IS MATERIAL
WHICH IDENTIFIES THE PARTY TO THIS AGREEMENT AND HAS
BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
--------------------------------------------------------------------------------
RESALE AND DISTRIBUTION AGREEMENT
PIPELINE TECHNOLOGIES, INC.
This PrePaid Long Distance Resale and Distribution Agreement ("Agreement") is
made by and between Pipeline Technologies, Inc., a Florida Corporation ("PLT"),
and XXXXXXXXXXXXXXXXX and XXXX XXXXXXXXXXXXXX ("Distributor"), a XXXXXXX
Corporation. In consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the Parties agree as
follows.
1. Definitions.
(a) "Dealer" means a Person authorized by the Distributor to distribute
the Service in conjunction with or on behalf of the PLT.
(b) "Effective Date" shall mean the date this Agreement is executed by the
Parities.
(c) "Person" shall mean any individual, company, corporation, firm,
partnership, joint venture, association, organization, or trust, in
each case whether or not having a separate legal identity.
(d) "PrePaid Packages" shall have the meaning assigned to such term in
Exhibit A attached hereto.
(e) "PrePaid Services" or "Services" shall mean the Prepaid Card PIN
programs offered by PLT, under its brand name, such PrePaid Services
are further defined and limited by the PrePaid Package and
descriptions set forth in Exhibit A attached hereto.
(f) "Consumer" means any Person who has purchased the PrePaid as a result
of the Company's efforts under this Agreement.
2. Scope.
(a) PLT, hereby appoints the Distributor to serve as an exclusive
electronic terminal distributor of the Service in the United States
and its territories in accordance with the terms and conditions of
this Agreement in Attachment (B). It is understood that all Agreements
in place as of the date of this Agreement are excluded from this
Agreement and PLT reserves the right to sell the Service or similar
products thru its properitory web site. The Distributor shall purchase
Services in its own name and account for resale to Dealers and/or
Subscribers within the United States.
(b) It is acknowledged that the Distributor may enlist the services of
Dealers to assist the Distributor in its efforts and obligations
hereunder; provided, however, that in connection therewith, the
Distributor shall (i) be such Dealers, and (ii) secure the execution
of any and all agreements necessary or appropriate to ensure the
compliance by such Dealers with the applicable provisions of this
Agreement. Neither PLT, nor its affiliates shall have any obligation
or responsibility, monetary or otherwise, with respect to any such
Dealers. A list of all distribution points are outlined in Attachment
E. This list will be expanded over the term of the Agreement.
(c) PLT, shall provide Consumers access to the PLT network in accordance
with the terms and conditions contained in the description of the
Product.
-80-
(d) PLT, further grants full exclusive distribution rights of its Service
and network to XXXXXXXXXXXXXXXXX for prepaid cards through Electronic
Distribution throughout its current customer base.
3. Order, Forecasting and Shipping Procedures.
(a) The terms and conditions set forth in this Agreement shall apply to
any purchase made hereunder and shall supersede the terms and
conditions contained in any purchase order or other document furnished
in connection with such order, except to the extent necessary to set
forth the specific Service being procured, the quantity of Service to
be delivered and the place and requested date of delivery.
(b) PLT, shall fulfill Long Distance Services on behalf of the Distributor
in accordance with orders received from the Company, subject, however,
to availability and any applicable producer lead time requirements.
Subject to foregoing PLT, will deliver all Services to the Consumer at
the address designated in the applicable order via standard industry
methods of PLT's choice. PLT, shall bear all installation costs for
service requests made in accordance with the foregoing.
(c) Pipeline Technologies's "Customer Service Satisfaction Guarantee"
shall apply to all orders and PLT, will make all efforts necessary to
fulfill this guarantee to end user customer. All merchantability
representations are the responsibility of the PLT.
(d) PLT agrees to supply on a regular basis the PINs necessary to support
the electronic transmissions of such PIN's through XXXXX's retail
network.
(e) These PINs shall be provided in a format as outlined in Attachment D.
4. Price and Payment.
(a) The Distributor shall compensate PLT, for the Pin's in accordance with
the pricing set forth in Exhibit A attached hereto, as Exhibit A may
be modified by PLT, form time to time upon at least thirty (30) days
advance notice to the Company. Prices charged by the Distributor to
Dealers and Subscribers for the Service shall be determined solely by
the Company. Consistent with the PLT tariffs as they are set by each
State PUC.
(b) PLT, shall invoice the Distributor for all fees and charges accruing
hereunder. Such fees and charges shall be due and payable by the
Distributor within ten (10) days following the date of PLT's invoice
or sooner by ACH Settlement. Distributor shall provide to PLT daily
sales reports, and make payments through ACH in a manner consistent
with all Distributors ACH Agreements. A reconciliation will be
provided with any such payment on an every two week basis. If required
PLT can go "online" with Distributor's web site to evaluate sales. PLT
reserves the right to audit Distributor's records with notice at PLT's
sole cost. For the purposes of this Agreement, distributor shall be
billed on the (1st) first and the (15th) fifteenth of each month of
the preceding period. All use and other such governmentally imposed or
authorized taxes, fees, assessments and surcharges relating to this
Agreement and/or the PrePaid Services, except income taxes based upon
the income of PLT, shall be paid by the PLT.
-81-
5. Representations and Warranties.
Each Party represents and warrants to the other that (a) it is duly
organized, validly existing, and in good standing under the laws of the
state of its organization; (b) it has all requisite power and authority to
enter into this Agreement and to carry out and perform its obligations
under the terms of this Agreement; (c) this Agreement has been duly
authorized, executed and delivered and constitutes a valid and binding
obligation of such party enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency, moratorium and other
laws of general application affecting the enforcement of creditors' rights;
and (d) the execution, delivery and performance of and compliance with this
Agreement does not and will not conflict with, constitute a default under,
or result in the creation of any mortgage, pledge, lien, encumbrance or
charge upon any of the properties or assets of such party, nor result in
any violation of (i) any term of its certificate of incorporation, bylaws
or other governing documents, (ii) any term or provision of any mortgage,
indenture, contract, agreement, instrument, judgment of decree, or (iii)
any order, statute, rule or regulation.
6. Disclaimer of Warranties and Limitation of Liability.
PLT, AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING
THE SERVICES, THE SERVICE OR THE PLT, NETWORK, AND HEREBY EXPRESSLY
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE OR PURPOSE. Under no circumstances shall PLT,
or its affiliates be liable to the Distributor or any other Person,
including, without limitation, Consumers, for any loss, injury or damage,
of whatever kind or nature, resulting from or arising out of any mistakes,
errors, omissions, delays or interruptions in the receipt, transmission or
storage of any messages, signals or information arising out of or in
connection with the Services of us of the PLT, network. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL PLT, BE LIABLE TO THE
DISTRIBUTOR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, CONSUMERS, FOR
INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY
OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN
IF PLT, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER
RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE.
7. Indemnity and Insurance.
(a) Indemnity. The Parties shall defend, indemnify and hold each other and
its affiliates harmless from and against any and all liabilities,
losses, damages, and costs, including reasonable attorney's fees,
resulting from, arising out of , or in any way connected with (i) any
breach by either Party of any warranty, representation, covenant or
agreement contained herein, (ii) the performance of the Parties duties
and obligations hereunder, or (iii) the unauthorized use by the
Parties of any PLT, marks of the Parties. The Company's obligations
under this Section shall survive the termination of this Agreement.
(b) Insurance. The Parties shall maintain comprehensive general liability
insurance in a combined single limit of not less than $1,000,000.00.
Purchase and maintenance of this insurance shall not relieve the
Parties of any of its responsibilities hereunder, and the Distributor
may carry, at its expense, such additional insurance amounts and
coverage as it deems necessary.
-82-
8. Audit & Records.
From time to time Distributor may require an audit of the customer records
on file. PLT will maintain on a separate computer file all Distributor
customer records. Such file will be accessible to Distributor upon
reasonable demand and or by Internet Access. All such files and customer
records will be maintained by PLT. Further, it is understood and
acknowledged that these records and customer base are the sole property of
the Distributor.
9. Term and Termination.
(a) The term of this Agreement shall commence as of the Effective Date and
shall continue in effect for a two (2) year period or until terminated
as set forth below.
(b) Either Party may terminate this Agreement without cause upon at least
three (3) months prior written notice to either Party.
(c) Upon the occurrence of an event or default, the Party not in default
shall have the right to terminate this Agreement upon written notice
to the other Party and the failure of the other Party to cure such
default within thirty (30) days of receiving such written notice. As
used herein, the term "event of default" shall mean (i) failure by a
Party to observe or perform in any material respect any of the
covenants or agreements contained in this Agreement or (ii) a Party's
insolvency, assignment for the benefit of creditors, appointment or
sufferance of appointment of a trustee, a receiver or similar officer,
or commencement of a proceeding seeking reorganization,
rehabilitation, liquidation or similar relief under the bankruptcy,
insolvency or similar debtor-relief status.
(d) Upon any termination of this Agreement, the Parties shall be released
from all obligations and liabilities to the other occurring or arising
after the date of such termination or the transactions contemplated
hereby, except with respect to those obligations which by their nature
are designed to survive termination as provided herein; provided that
no such termination will relieve either Party from any amount due and
owing hereunder or from any liability arising from any breach of this
Agreement.
10. Notices.
Any notice or other communication herein required or permitted to be given
shall be in writing and may be personally served, telecopied or sent by a
recognized overnight courier or United States mail, and shall be deemed to
have received when (a) delivered in person or received by telecopy, (b) one
(1) business day after delivery to the office of such overnight courier
service, or (c) three (3) business days after depositing the notice in the
United States mail with postage prepaid and properly addressed to the other
Party, at the following respective addresses.
-83-
To: Pipeline Technologies, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
Attention: Xxx Xxxxxxxx, Chief Executive Officer
To: Company
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
Telephone: XXX-XXX-XXXX
Facsimile: XXX-XXX-XXXX
or to such other address or addresses as either Party may from time to time
designate as to itself by like notice.
11. Miscellaneous.
(a) Neither party will be liable for any nonperformance under this
Agreement due to causes beyond its reasonable control that control
that could not have been reasonably anticipated by the non-performing
Party as of the Effective Date and that cannot be reasonably avoided
or overcome; provided that the non-performing Party gives the other
prompt written notice of such cause, and in any event within fifteen
(15) calendar days of discovery thereof.
(b) None of the provisions of this Agreement shall be deemed to constitute
a partnership, joint venture or any other such relationship between
the Parties hereto, and neither Party shall have any authority to bind
the other in any manner.
(c) If any action shall be brought on account of any breach of or to
enforce or interpret any of the terms, covenants or conditions of this
Agreement, the prevailing Party shall be entitled to recover from the
other, as part of the prevailing party's costs, a reasonable
attorneys' fee.
(d) This Agreement shall be governed by and construed in accordance with
the laws of the Sate of Florida, without regard to the principles of
conflict of laws.
(e) Any provisions of this Agreement shall be held to be illegal, invalid
or unenforceable, such provision will be enforced to the maximum
extent permissible so as to effect the intent of the Parities, and the
validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby.
(f) No delay or failure by either Party in exercising any right under this
Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right.
(g) This Agreement, including all exhibits and documents directly
referenced, constitutes the entire Agreement between the Parties with
respect to the subject matter hereof, and supersedes and replaces all
prior or contemporaneous understandings or agreements, written or
oral, regarding such subject matter. No amendment to or modification
of this Agreement will be binding unless in writing and signed by a
duly authorized representative of both Parties.
-84-
In Witness Whereof, the Distributor and ATC, have executed this Agreement
on the dates noted below.
PIPELINE TECHNOLOGIES CORPORATION "Distributor"
By: Xxx Xxxxxxxx By: XXXXXXXXXXXXXXXXXXXXXXX
------------------------ ------------------------
Title: President Title: Vice President
------------------------ ------------------------
Date: April 24, 2000 Date: April 24, 2000
------------------------ ------------------------
-85-
Attachment A
Product Description, Discount, Rebates
Voice over Internet
Protocol Long Distance Services
The pricing is as follows:
Retail to Consumer:
Long Distance Product(s) Plus Discounts %
------------------------ ----------------
AT COST PLUS 12%
-86-
Attachment B
Terms and Conditions
1. Effective April 1st, 2000, Distributor shall offer through its distribution
network the Pipeline Technologies product line as developed for
Distributor.
2. Pipeline Technologies, Inc., will grant exclusive rights to Distributor
program for the exclusive electronic terminal distribution nationally for a
(24) twenty-four month period.
3. Distributor shall have the rights to market exclusively to its current
distribution network the standard Pipeline Technologies product developed
in a private label format for Distributor. Such packaging and POS to
support same shall be provided to Distributor by PLT at its sole cost.
4. PLT agrees to provide Distributor support in the recruitment, development
and training of current and new distributors for PLT's products. Such
expense to be borne solely by PLT.
5. Distributor understands that PLT does not currently have a national
footprint of service. Distributor shall seek prior approval from PLT before
marketing uncovered territories.
-87-
Attachment D
XXXXXXXXXXXXXXXXXX
Vendors Information Form
And PIN Generation Instructions
Business Name:________________________ Contact Person Name:_____________________
Address:__________________________ City:_______________ State:______ Zip:_______
Phone # with area code:_________________ Fax # with area code:________________
E-mail Address:______________________________
Product Information:____________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Product goes to which Terminal
Server?_________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Reference # of Product if any:________________________________________
1. The preferred method of gathering and storing information will be on a 3
1/2" x 5" floppy disk. The vendor will label the floppy as follows: Vendor
Name, Person sending the information, Product ID or Name of Product,
Reference of a Purchase Order if any, and the Date the info was placed on
the disk.
2. When saving the file to the disk please save as follows: save to the "a"
dive with a path referencing as an abbreviation; the vendor name, product
type and date. For example, a:\vfcl040799, which would mean saved to "a"
drive, Verifone, Cellular and saved on April 7, 1999. When we get to Y2K
you may use 2K in that case. For this purpose it is not necessary to use
the entire four digits for the year. If there is YN number in the
information that needs to be saved please shorten the date so you can add
YN to the file name. For example, a:\vfclyn0407 (note leave off year).
3. Please send the floppy disk via Federal Express as it is the most secure
way of sending it. Send it attention:
Mr. XXXXXXXXXXXXX XXX-XXX-XXXX xxx.XXX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
-88-
