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EXHIBIT 10.22
iPULSE AGENCY AGREEMENT
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iPULSE AGENCY AGREEMENT
This Agreement is made and entered into between
A. Ericsson Radio Systems AB, a company duly incorporated
under the laws of Sweden, with its principal office at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ 80 Stockholm, (hereinafter
"Ericsson")
and
B. ▇▇.▇▇▇, a company duly incorporated under the laws of
California, with its principal office at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter the "Agent").
Initial Term: Two (2) years (hereinafter the "Initial
Term").
PREAMBLE (BACKGROUND)
WHEREAS, Ericsson is the owner of the iPulse application
described in Appendix 1 ("iPulse");
WHEREAS, Agent is in the business of providing to network
operators and Internet businesses mPresence, a hosting and
managed care communication and service framework that includes a
number of applications and services developed by Agent and
licensed from third parties ("mPresence"). iPulse is one example
of a third-party licensed application to be included in the
mPresence framework.
WHEREAS, As Agent, while marketing and selling its mPresence
services, including iPulse as a hosted and managed care
solution, is likely to receive orders for a standard iPulse
licenses, without the mPresence services, Agent wishes to be
able to grant such licenses; and
WHEREAS, Ericsson desires to grant an agency to Agent, and Agent
desires to act as Ercisson's agent for the purpose of promoting
and selling standard iPulse licenses, separate from and in
addition to the mPresence services; .
NOW THEREFORE, the parties agree as follows:
1 SCOPE OF AGREEMENT
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1.1 Subject to the terms and conditions of this Agreement, Ericsson
hereby appoints the Agent, on a non-exclusive basis, to canvass
and solicit inquiries and orders for delivery in the whole world
(the "Territory") for iPulse.
1.2 Ericsson reserves the right to refrain from offering iPulse if,
in its reasonable judgment, the circumstances so require. All
orders procured by the Agent shall be subject to written
acceptance by Ericsson.
1.3 Ericsson may at any time, without any liability to the Agent,
discontinue the marketing or sale of all or part of iPulse.
2 ERICSSON'S OBLIGATIONS
Ericsson agrees to provide the Agent with such:
(a) assistance as the Agent reasonably requires and Ericsson
deems necessary for promoting the licensing of iPulse;
and
(b) iPulse information and documentation as the Agent
reasonably requires and Ericsson deems necessary.
Ericsson will furnish the Agent reasonable quantities of
catalogues, price lists, technical instructions and
other printed material that are available to Ericsson.
All such material will be shipped FCA Stockholm
(INCOTERMS 1990).
3 AGENT'S OBLIGATIONS
3.1 The Agent shall:
(a) assist Ericsson in the execution of sales (licensing)
contracts in respect thereto;
(b) report, from time to time, through the LINK VC on all
matters of interest to Ericsson that directly affect the
sale of iPulse in the Territory, including the
activities, products and prices of competitors, the
financial standing of customers and tariffs, duties,
taxes, laws and changes thereof which may affect sales
of iPulse;
(c) protect and promote Ericsson's goodwill and reputation;
(d) comply with all reasonable instructions, policies and
guidelines given by Ericsson;
(e) promptly transmit to Ericsson any inquiry from
prospective customers for a standard iPulse license,
i.e., an iPulse license that is not part of a hosting
service that is offered by Agent, together with
available information which may help Ericsson in
evaluating and attending to the business;
(f) immediately notify Ericsson upon knowledge of any
infringement of its copyrights, patents, trademarks or
other intellectual property
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rights and assist Ericsson in safeguarding such rights,
provided Ericsson compensates the Agent for its
reasonable out of pocket expenses for such assistance;
(g) immediately notify Ericsson of any change in the
management, control or ownership of the Agent; and
(h) act dutifully, in good faith and generally look after
the interests of Ericsson.
3.2 The Agent shall indemnify Ericsson against all claims by a third
party arising out of acts, omissions or misrepresentations of
the Agent.
4 COSTS AND EXPENSES
The Agent shall defray all costs and expenses of and incidental
to the agency.
5 GENERAL RESTRICTIONS
5.1 The Agent has no authority to make any commitment whatsoever or
to receive any money on behalf of Ericsson, nor can it forgive
any debt, security or obligation due Ericsson on account of
iPulse or otherwise.
5.2 Provided any applicable mandatory law does not stipulate
otherwise, during the validity of this Agreement and for two (2)
years thereafter the Agent shall not directly nor indirectly
engage in any business that competes or interferes with the
licensing of iPulse.
6 CONFIDENTIAL TREATMENT
The Agent shall not disclose or make any unauthorized use of any
information concerning Ericsson's business, affairs or iPulse
received by the Agent in the course of its activities under this
Agreement, except to the extent necessary for the Agent's
activities in accordance with this Agreement. The Agent's
obligations under this Article shall survive the termination or
expiration of this Agreement.
7 COMMISSION
7.1 Ericsson shall pay to Agent a commission based on the net amount
of payments (after deduction of taxes, insurance and other
similar costs) actually received by Ericsson under a licensing
contract for iPulse concluded through Ericsson's acceptance of
orders procured by the Agent, as set forth in Section ERROR
REFERENCE SOURCE NOT FOUND. The rate of commission and any
special conditions regarding the method of its calculation or
payment shall be agreed upon in writing between the parties from
time to time, prior to Ericsson's price quotation to a customer.
In the absence of such agreement, the rate of commission shall
be fifteen percent (15%) of the above net payment.
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7.2 The commission set out in 7.1 above is based on that the Agent
fully performs all of its obligations according to this
Agreement. If the Agent only introduce a potential customer to
Ericsson no commission shall be payable. However, in such a
case Agent shall instead receive a Finders Fee corresponding to
five percent (5%) of the net payment (as defined in 7.1 above)
or five percent (5%) of the Ericsson internal transfer price
whichever is the greatest.
7.3 The Agent shall have no claim because of any failure or delay by
Ericsson to collect payments.
7.4 The Agent shall be entitled to commissions only on sales
contracts for Products concluded during the term of this
Agreement.
7.5 The Agent shall not be entitled to any compensation, other than
the commission mentioned above, for costs and expenses of and
incidental to the agency, unless Ericsson agrees to such costs
and expenses in advance.
7.6 Any commission that becomes due to Agent shall be promptly paid
following receipt by Ericsson of the payments from the customer.
8 ERICSSON'S TRADEMARKS AND TRADE NAMES
8.1 The Agent acknowledges that "ERICSSON ///" is the corporate
trademark of Telefonaktiebolaget LM Ericsson and that both
"Ericsson" and "///" are important features of the corporate
trademark.
The Agent is authorized, and shall in its promotion of iPulse,
utilize such trademarks and trade names and other proprietary
words or symbols (collectively the "Trademarks", which term
shall include the corporate trademark "ERICSSON ///") as
Ericsson may from time to time use in association with iPulse
and which are notified in writing to the Agent.
Any use by the Agent of any of the Trademarks shall be in strict
accordance with Ericsson's usage rules prevailing from time to
time (including Ericsson Corporate Visual Identity Manual) and
Ericsson's instructions.
8.2 Nothing in this Agreement shall be deemed to grant to the Agent
any right, title or interest in any of the Trademarks or the
word "Ericsson" or the symbol "///", except the right to use the
Trademarks as permitted in this Article 8. Except as provided
herein, the Agent shall not have any right to use the word
"Ericsson", the symbol "///", the Trademarks or any derivative
thereof or any combination of trade names, trademarks and
company names including said word, symbol and Trademarks, and
further, the Agent will refrain from using or registering any
trade name or trademark confusingly similar thereto.
8.3 The Agent shall not publish, encourage or approve any
advertising or practice that might be detrimental to the good
name, Trademarks, goodwill or reputation of Ericsson or its
products (including iPulse), nor will it act in a manner that
may have such an effect.
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8.4 Upon receipt of written notice from Ericsson, or the expiration
or termination of the agency created under this Agreement, all
of the Agent's rights concerning use of the Trademarks shall
automatically terminate as of the date of such receipt,
expiration or termination and the Agent shall then immediately
cease to use the Trademarks.
8.5 Any use of the Trademarks, whether in their entirety or in part,
shall be for the benefit of Ericsson only. Any right to the
Trademarks which may have been acquired by the Agent through its
use thereof shall, as soon as they come into existence,
automatically be transferred to Ericsson without any
compensation to the Agent; the Agent shall forthwith sign all
documents deemed necessary by Ericsson to confirm such transfer.
This Subarticle 8.5 shall survive the termination this
Agreement.
8.6 Ericsson may, where registered user provisions exist and subject
to registration of the Trademarks, apply for registration of the
Agent as a permitted user of the Trademarks within the
Territory. If this Agreement is insufficient for such
registration, the parties will sign a short form supplementary
agreement in form satisfactory to registrar of trademarks in the
Territory.
9 TERM AND TERMINATION
9.1 This Agreement shall become effective upon the date of signing
by both parties and shall remain in force until the final date
of the Initial Term. Unless terminated as provided herein, upon
expiration of the Initial Term the agency shall be automatically
extended for an indefinite period. Either party may terminate
this Agreement without cause by giving not less than six (6)
months notice in writing prior to expiration of the Initial Term
and thereafter upon giving six (6) months written notice of
termination.
9.2 Notwithstanding Subarticle 9.1, each party is entitled to
immediately terminate this Agreement if the other party should
commit a breach hereof that is not insignificant and such party
does not remedy such breach within thirty (30) days from written
notice by the other party requiring the defaulting party to
remedy the same.
9.3 In addition to Subarticles 9.1 and 9.2, Ericsson shall have the
right to immediately terminate this Agreement if:
(a) the Agent's financial situation or commercial ability
deteriorates to the extent that Ericsson reasonably
believes that the Agent is or will be unable to fulfil
its obligations under this Agreement; or
(b) there is a change in the management, control or
ownership of the Agent or of any fundamental reason
(possibly mentioned in the Preamble) for Ericsson's
appointment of the Agent that could, in Ericsson's sole
discretion, adversely affect Ericsson.
9.4 On termination of this Agreement, neither party shall be
entitled to any compensation or damages for or on account of
such termination, except where such claim is based on a breach
of this Agreement.
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9.5 The Agent shall return to Ericsson all material furnished the
Agent, including catalogues and price-lists, forthwith upon any
termination of this Agreement.
9.6 The provisions of this Agreement, which by their nature are
continuing, shall survive the termination or expiration of this
Agreement.
10 GENERAL PROVISIONS
10.1 This Agreement contains the entire agreement of the parties on
the subject matter hereof and supersedes all prior agreements
between them relating to any matter covered by this Agreement.
No agreement hereafter modifying or supplementing this Agreement
(an "Amendment") shall be binding unless confirmed in writing by
the parties. In the event of a conflict between an Amendment and
this Agreement, the Amendment shall prevail provided it
expressly states the subarticle of this Agreement, which it
modifies.
10.2 This Agreement is not assignable by the Agent. Ericsson shall
have the right to transfer or assign this Agreement in whole or
in part to any of its subsidiaries or affiliates.
10.3 Neither party shall be liable to the other for any indirect,
incidental, special or consequential damages of any nature or
kind whatsoever, including loss of profit, except with respect
to claims by Ericsson for breach by the Agent of its obligations
under Subarticle 5.2 and Articles 6 or 8.
10.4 All notices under this Agreement shall be effective upon receipt
and shall be sent by hand delivery, registered mail or telefax
to the party to be served at its address as stated herein. A
party may change its address by a notice in the manner set forth
above.
10.5 If any provision of this Agreement is held invalid or
unenforceable, then, to the extent permitted by law, the
remainder of this Agreement shall be fully enforceable without
such provision.
10.6 Nothing contained in this Agreement shall be construed as
constituting the Agent and Ericsson as partners or joint
venturers, or as creating the relationship of employer and
employee between them or otherwise create any other relationship
than that of a principal and an agent as set forth in this
Agreement.
11 DISPUTES
11.1 Any dispute arising out of or in connection with this Agreement
which cannot be resolved by good faith negotiations shall be
finally settled in accordance with the Rules of Arbitration of
the International Chamber of Commerce, by a panel of three
arbitrators. The place of arbitration shall be Stockholm,
Sweden, and the language of the proceedings shall be English.
Notwithstanding this, Ericsson may at any time apply to a court
of competent jurisdiction for injunctive or other equitable
relief or corre-
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sponding remedy, in case of any breach, or threatening breach,
of Article 6 or 8.
11.2 Swedish substantive law shall govern this Agreement.
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This Agreement has been executed in two (2) originals, of which
the parties have received one (1) each.
Place Stockholm Place Stockholm
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Date 2000/11/01 Date 2000/11/01
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ERICSSON RADIO SYSTEMS AB ▇▇.▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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