EXHIBIT 10.5
EFFECTNET
UNIFIED COMMUNICATIONS
SERVICES
GENERAL AGREEMENT
FOR TELQUEST TECHNOLOGIES INC.
UNIFIED COMMUNICATIONS SERVICES GENERAL AGREEMENT
This Unified Communications General Agreement ("Agreement") is entered
into as of the 7th day of November 2000, ("Effective Date") by and between
EffectNet LLC, a Nevada Limited Liability Company ("EffectNet") and telQuest
Technologies Inc., organized under the laws of British Columbia, Canada, with a
business address at 0000 Xxxxxxx Xx, Xxxxx 000 Xxxxxxxxx, XX, Xxxxxx, X0X0X0
("telQuest Technologies Inc.") (collectively "Parties" or individually a
"Party").
WHEREAS, telQuest Technologies Inc. is a voice convergents company.
WHEREAS, EffectNet is a unified communications application service
provider that offers private label Internet and telecommunications products and
services, including unified communications and other value-added services,
in-house customer services, billing and technical support (the "EffectNet
Services").
WHEREAS, EffectNet desires to provide telQuest with a customized
telQuest.-branded wholesale communications service ("Private Label") for sale by
telQuest (the services collectively hereinafter described as "telQuest UC
Services" or "UC Services"); and
WHEREAS, EffectNet and telQuest recognize that the telQuest UC Service
they jointly work to, market and manage is a highly innovative service requiring
Parties to closely work together to meet telQuest Customer needs, implement and
ensure the commercial viability of the telQuest UC Services; and,
NOW THEREFORE, in consideration of the premises and mutual agreements
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which the Parties acknowledge, the Parties agree as
follows:
1. GENERAL PROVISIONS.
1.1 Both Parties agree that EffectNet shall offer telQuest UC Services
for telQuest as described in this Agreement. telQuest will market the UC
Services to telQuest customers and end-users. For purposes of this
Agreement, the term "customers" shall include, but not be limited to
wholesale and retail customers of telQuest UC Services.
1.2 EffectNet may make changes to the EffectNet Services from time to
time in order to improve, modify or extend the EffectNet Services
("EffectNet Changes"), but in no event shall such changes materially
decrease the quality of the EffectNet Services provided to telQuest.
EffectNet will use commercially reasonable efforts to provide telQuest with
notice ninety (90) days in advance of the commercial release date of such
changes. In the event that said improvements or modifications require a
change in pricing, both parties agree to use best efforts to renegotiate
pricing in a timely manner.
1.3 The Parties shall use their best efforts to accomplish the initial
launch of the telQuest UC Services ("Initial Launch Date") by January 1st ,
2000.
1.4 Each Party shall promptly notify the other in writing of any
event, which might result in such Party's inability to continue to meet its
obligations under this Agreement. Such even shall specifically include, but
not be limited to, a materially adverse change in a Party's financial
situation.
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2. OBLIGATIONS OF THE PARTIES.
2.1 Product Coordinator: EffectNet and telQuest will each designate
their own Product Coordinator to coordinate the process described below.
2.1.1 The designated Product Coordinators will be the principal
points of contact between the parties on product issues (the "Product
Advisory Process"). Each party may rely on the authority and technical
competence of the other Party's Product Coordinator to represent its
respective company in connection with the priorities, needs and
progress of their company's product issues.
2.1.2 The Product Advisory Process will include in-person/
telephonic/electronic communication between representatives, which
should be ongoing, or occur not less than once a month.
2.1.3 The EffectNet Product Coordinator will be solely responsible
for all final decisions for EffectNet Services.
2.2 EffectNet Materials. EffectNet will provide telQuest with regular
access to and copies of the following:
2.2.1 Plans for current and future enhancements to the EffectNet
services which by their nature apply to the telQuest Services; and
2.2.2 Functional descriptions, development plans, schedules and
periodic status for enhancements to the EffectNet Services under
development, as soon as such materials exist.
2.3 Product Development. telQuest and EffectNet agree that the
EffectNet Services provided to telQuest will [Omitted Confidential Portion
- Omitted portion has been filed separately with the SEC with request for
confidential treatment of the omitted portion pursuant to the Freedom of
Information Act and SEC rule 24b-2]; provided, however, that EffectNet
shall have no obligation to support telQuest modification not previously
agreed to by EffectNet. telQuest customers will need ample time to
integrate new versions into daily use.
2.3.1 telQuest will implement new versions within 30 days with
call avoidance measures built into the process, including but not
limited to adequate customer notification of new features, benefits
and the availability of training timed to coincide with the release of
any new versions.
2.3.2 EffectNet will use commercially reasonable efforts to
provide telQuest with at least ninety (90) days advance notice of an
expected new release or version of EffectNet Services.
2.4 Forecasts. telQuest shall provide EffectNet with forecasts for expected
mailbox activations, at minimum of sixty (60) day intervals. telQuest will
also provide EffectNet with quarterly and annual forecasts of expected
mailbox activations, with the availability of platform capacity to be
provided by EffectNet to telQuest conditioned on the platform capacity
demand not exceeding the forecasts provided by telQuest for any period
addressed by such respective forecast. With respect to timely provided
sixty (60) day forecasts only, EffectNet will use reasonable efforts to
meet telQuest's forecast demand. However, EffectNet reserves the right to
request additional guarantees from telQuest when the forecasts provided by
telQuest require significant or unusual capital and cost
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by EffectNet. telQuest is to provide the first such forecasts to EffectNet
prior to this General Agreement coming into effect. For purposes of this
section EffectNet must allocate constrained capacity to telQuest on terms
at least as favorable as offered to other customers of EffectNet. In the
event that EffectNet declines orders because of capacity constraints, then
EffectNet shall notify telQuest and the Parties shall use commercially
reasonable efforts to develop a solution that will provide telQuest with a
method of ensuring that the needs of telQuest's existing and potential end
users are met while ensuring that EffectNet is permitted to increase
capacity in an orderly fashion.
2.5 Billing Cycle. On an every 30-day basis EffectNet will invoice
telQuest for account fees for each account active during the previous
month. telQuest will be charged a daily pro rated amount for start-up and
terminated accounts.
2.6 Payment. telQuest will pay EffectNet in then available U.S. funds
on a net [Omitted Confidential Portion - Omitted portion has been filed
separately with the SEC with request for confidential treatment of the
omitted portion pursuant to the Freedom of Information Act and SEC rule
24b-2] basis. EffectNet may attach penalties for late payment.
2.7 Call Detail Records for Billing. Each day, EffectNet will provide
to telQuest Calling Detail Records ("CDR") on a timely basis, in a mutually
agreed-upon electronic format.
2.8 Xxxxxxxx and Collections. telQuest shall be responsible, at its
sole expense, for all invoicing and collections with its customers,
end-users, agents, subagents or resellers. EffectNet will not be
responsible for any collections or bad debt by telQuest's customers,
end-users, agents, subagents or resellers.
2.9 Fraud. telQuest will be solely responsible for fraudulent misuse
of (a) United States and Canadian UC Services due to credit fraud,
fraudulently established accounts, stolen accounts, and (b) all other
accounts provided to any customers located outside the United States and
Canada, regardless of the method of fraud. EffectNet shall notify telQuest
of fraud as soon as practicable, upon EffectNet's becoming aware of such
fraud. EffectNet will use commercially reasonable efforts to cooperate with
telQuest to arrive at fraud control means and measures.
2.10 Customer Service Call Center and Technical Support. EffectNet
shall maintain a customer service call center for its telQuest customers
and end-users, as appropriate. This call center will be responsible for all
customer support.
2.10.1 Call items outside the scope of EffectNet support services
are: non-EffectNet related software problems, call forwarding issues,
non-EffectNet related product inquiries, as well as non-EffectNet
related billing issues e.g. credit card problems.
2.11 Customer Fulfillment Process. telQuest, when taking orders for
new customers or end users, or taking orders to modify or update a
customer's order, will use the EffectNet Customer Fulfillment Process or
compatible process to gather the information required and to provide the
customer information to EffectNet. telQuest is responsible for providing to
EffectNet such new mailbox account information reasonably required by
EffectNet in order to activate a new mailbox. EffectNet shall provide
documentation and training, in accordance with the training provision of
this Agreement, to telQuest on the EffectNet Customer Fulfillment Process.
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2.13 [Omitted Confidential Portion - Omitted portion has been filed
separately with the SEC with request for confidential treatment of the
omitted portion pursuant to the Freedom of Information Act and SEC rule
24b-2]
3. MARKETING AND BRANDING.
3.1 Web Presence. [Omitted Confidential Portion - Omitted portion has
been filed separately with the SEC with request for confidential treatment
of the omitted portion pursuant to the Freedom of Information Act and SEC
rule 24b-2]
3.2 Use of Trademarks, Service Marks and Trade names. The Parties
agree not to display or use any of the trade names, service marks, brands
or trademarks of the other Party, and shall not permit the same to be
displayed or used by third parties, other than in connection with the sale,
distribution or promotion of the brand(s) used for the telQuest UC Services
covered by this Agreement and subject to the prior written approval of the
other or a third Party owning such trademark, service xxxx or trade name
(except where such approval between the Parties is contained in this
Agreement). In the absence of specific prior written consent from the other
Party, a Party shall not use any part of any of the other Party's trade
names, service marks, brands or trademarks as part of its own name, service
marks or trademarks or in any other manner not so approved by the other
Party. It is expressly understood by both Parties that trade names, service
marks and trademarks of the other party are proprietary and that nothing in
this Agreement constitutes the grant of a general license to use said trade
names, service marks and trademarks. Upon termination of this Agreement,
any and all rights or privileges of a Party to use the other Party's trade
names, service marks, brands or trademarks shall expire, and each Party
shall discontinue the use of the other Party's trade names, service marks,
brands. The provisions of this section shall also apply to third party
branding incidental to this Agreement.
3.3 Business Conduct. In conformity with this Agreement, neither party
shall make any representation with respect to the other party that is
inconsistent with the terms and conditions of this Agreement.
3.4 telQuest Marketing Expenses. [Omitted Confidential Portion -
Omitted portion has been filed separately with the SEC with request for
confidential treatment of the omitted portion pursuant to the Freedom of
Information Act and SEC rule 24b-2]
4. CHARGES AND BILLING STATEMENTS.
4.1 Traffic- or usage-sensitive rates shall be computed [Omitted
Confidential Portion - Omitted portion has been filed separately with the
SEC with request for confidential treatment of the omitted portion pursuant
to the Freedom of Information Act and SEC rule 24b-2]
4.2 telQuest shall be responsible for all applicable taxes, including
but not limited to sales or valued-added taxes, utility or excise taxes,
fees and/or surcharges that are imposed by federal, state, or local
governments on the telQuest UC Services or business generated by telQuest
through the sale of telQuest UC Services as a result of long distance or
services bundled within the telQuest UC Services. telQuest shall pay or
reimburse EffectNet for all taxes collected or imposed on these services
provided by EffectNet. The Prices quotes in the following sections are
exclusive of any and all taxes. Excluded from this responsibility are taxes
from EffectNet net income. EffectNet shall comply with all federal and
state regulations with respect to employee withholding taxes.
4.3 Pricing. Pricing shall be as indicated by Appendix "P" attached
hereto.
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4.4 Seven (7) working days post the close of the month, EffectNet
shall provide to telQuest a settlement statement ("Settlement Statement")
providing a summary of charges for the previous month's billing cycle in an
industry standard format. The settlement statement, unless specified
elsewhere in this Agreement, shall contain the following:
4.4.1 A listing of monthly recurring charges for the current or
prior month's billing cycle.
4.4.2 For calls or traffic originated by telQuest or any
customers, agents, sub-agents and/or end-users during the previous
month, the individual call detail and the aggregate usage charge
payable broken down by termination location.
4.4.3 For calls or traffic terminated by telQuest or any
customers, agents, sub-agents and/or end-users during the previous
month, the individual call detail and the aggregate usage charge
payable broken down by termination location.
4.4.4 Any taxes, fees and/or charges that are imposed by federal,
state, and/or local governments.
4.4.5 The net amount payable by telQuest to EffectNet or payable
to telQuest by EffectNet.
4.4.6 When applicable, any mutually negotiated additional fees.
4.5 Payment of the Settlement Statement shall be made [Omitted
Confidential Portion - Omitted portion has been filed separately with the
SEC with request for confidential treatment of the omitted portion pursuant
to the Freedom of Information Act and SEC rule 24b-2] after the Settlement
Statement and invoice were sent (the "Due Date"). Payments to EffectNet
shall be in United States dollars and are to be made via wire transfer for
credit to an account of EffectNet to be determined by EffectNet and
provided to telQuest within three (3) days of the date of execution of this
Agreement by the later signing party. If payment is not received by the Due
Date, a late fee of the lesser of (a) one and one-half (1 1/2) percent per
month or (b) the maximum percentage permitted by law shall be assessed on
the delinquent balance of undisputed usage not paid by the Due Date.
4.5.1 Deposit. [Omitted Confidential Portion - Omitted portion has
been filed separately with the SEC with request for confidential
treatment of the omitted portion pursuant to the Freedom of
Information Act and SEC rule 24b-2]
4.5.2 In the event that payment is received late for two (2)
consecutive months, telQuest shall furnish to EffectNet a deposit
("Late Payment Deposit") equal to one half (1/2) of the previous
month's billing. The Late Payment Deposit shall provide for security
and will be made within five (5) days of request the EffectNet.
telQuest's failure to make deposit of any additional funds called for
in this paragraph within the timeframe specified, or to pay the
required shortfall within five (5) days after the issuance of a
statement of shortfall, shall be deemed a breach of this Agreement.
EffectNet will retain the late payment deposit until such time that
telQuest has demonstrated six (6) consecutive months of on-time
payment history. After said period, the late payment deposit shall be
refunded or applied as a credit.
4.5.3 In the event that telQuest disputes any charge assessed by
EffectNet, the Parties agree to cooperate to resolve the dispute at
the earliest
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practicable date. The late charges set forth in Section of this
Agreement shall not apply to payments that are the subject of a good
faith dispute between EffectNet and telQuest. If there is a good faith
dispute, EffectNet cannot demand a late payment deposit.
5. TERM AND TERMINATION.
5.1 Term. Unless otherwise terminated as provided herein, this
Agreement shall be in force for an initial term of five years after the
Effective Date (the "Initial Term). Absent 90 day written notice prior to
the end of the term of intent to discontinue parties' relationship this
agreement shall continue automatically for successive one year terms under
the same terms and conditions contained herein together with any subsequent
amendments hereto.
5.2 Termination. Either Party may terminate this Agreement: (a) if the
other Party fails to fulfill any of its material obligations under this
Agreement; (b) if the other Party is in breach of Section 7
(Confidentiality); (c) if the other Party becomes insolvent or admits in
writing its inability to pay debts as they mature, or makes an assignment
for the benefit of creditors; or (d) if a petition under any foreign, state
or United States bankruptcy act, receivership statute, or the like is filed
by the other Party and is not dismissed within sixty (60) days after such
filing. Termination due to default under this Section shall be effective
thirty (30) days after written notice to the defaulting Party if the
default has not been cured within such thirty (30) day period.
5.3 Effect of Termination. Upon termination of this Agreement for any
reason, each Party shall remain liable for those obligations that accrued
prior to the date of such termination; provided, however, that nothing
herein shall be construed to obligate EffectNet to offer Services to
telQuest after the termination of this Agreement.
5.4 Early Termination. If prior to the end of the Initial Term this
Agreement is terminated for any reason by telQuest other than if EffectNet
fails to fulfill any of its material obligations under this Agreement then,
telQuest shall pay EffectNet a one-time early termination dollar fee equal
to the amount of the unfulfilled obligation to be calculated by the number
of Minimum Commitment accounts or then active subscribers (as outlined in
section 2.12) multiplied by the lessor of 9 months or the remaining months
of the contract multiplied by the hereinabove agreed price per account.
6. SURVIVAL. The following provisions shall survive the expiration or
termination, for any reason, of this Agreement: (Subscriber Information),
(Charges and Billing Statements); (Term and Termination);
(Confidentiality); (Warranties); (Intellectual Property);
(Indemnification); (Limitation of Liability); (General Provisions).
7. CONFIDENTIALITY. All information disclosed to the other party shall
be deemed confidential and proprietary (hereinafter referred to as
"Proprietary Information"). Such information includes, but is not limited
to, trade secrets, know-how, technical specifications, processes,
functional descriptions, architectural specifications, development plans,
schedules, design information, customer lists, pricing and financial
information concerning the parties' products or services, or other
information relating to business development, operations, marketing, sales,
performance, and any other information disclosed hereunder, which, by its
nature, might reasonably be presumed to be proprietary in nature.
7.1 Each party agrees to use the Proprietary Information received from
the
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other party only for the purposes of analyzing the business arrangement
between the parties, and in accordance with this Agreement. No patent,
copyright, trademark, invention, service xxxx, or other proprietary rights
are implied or granted under this Agreement.
7.2 Proprietary information supplied pursuant to this Agreement shall
not be reproduced in any form by the receiving party except as required to
accomplish the intent of this Agreement.
7.3 The receiving party shall provide, at a minimum, the same care to
avoid disclosure or unauthorized use of the Proprietary Information as is
provided to protect its own similar Proprietary Information, but in no
event less than a reasonable standard of care. It is agreed that all
Proprietary Information shall be retained by the receiving party in a
secure place with access limited to the receiving party's employees or
agents who need to know such information for purposes of this Agreement.
The receiving party shall be fully responsible for any breach of this
Agreement by its employees or agents. The receiving party will promptly
report to the disclosing party any actual or suspected violation of the
terms of this Agreement, and will take all reasonable steps requested by
the disclosing party to prevent, control or remedy any such violation.
7.4 All Proprietary Information, unless otherwise specified in
writing, shall remain the property of the disclosing party. Such
information shall be used by the receiving party only for the purpose set
forth in this Agreement. In addition, such Proprietary Information,
including all copies thereof, shall be returned to the disclosing party or,
at the request of the disclosing party, may be destroyed by the receiving
party and certified as destroyed by an officer of the receiving party after
the Receiving party's need for it has expired, upon request of the
disclosing party; and, in any event, upon termination of the Agreement.
7.5 Exceptions to confidentiality: It is understood that the parties
have no obligation to maintain the confidentiality of Proprietary
Information which:
7.5.1 has been published or is now otherwise in the public domain
through no fault of the receiving party.
7.5.2 prior to disclosure hereunder is within the legitimate
possession of the receiving party without obligation of
confidentiality as can be demonstrated by written documentation.
7.5.3 subsequent to disclosure hereunder is lawfully received from
a third party having rights to such Proprietary Information without
restriction of the third party's right to disseminate the Proprietary
Information and without notice of any restriction against its further
disclosure, is disclosed with the written approval of the other party
as can be proven by documentation.
7.5.4 a Party is obligated to be produced under order of a court
of competent jurisdiction or other government authority; provided
however, that the receiving party shall immediately provide notice to
the disclosing party such that the disclosing party may seek
injunctive relief; and further provided that the disclosing party
shall use best efforts to ensure that the information shall be treated
as confidential by the party to whom it is disclosed.
7.5.5 is independently developed by the receiving party without
reference to or reliance upon the confidential information
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In the event of a disputed disclosure, the receiving party shall
bear the burden of proof of demonstrating that the information falls
under one of the above exceptions.
7.6 EffectNet will not use telQuest's customer information or other
proprietary
8. WARRANTIES.
8.1. Authorization. Each Party represents and warrants to the other
Party that the execution and delivery of this Agreement and the performance
of such Party's obligations under this Agreement have been duly authorized,
and that the Agreement is a valid and binding agreement, enforceable in
accordance with its terms.
8.2. Legal Compliance. Each Party represents and warrants that it has
obtained, or will obtain prior to offering the Services hereunder, all
licenses, approvals and/or regulatory authority necessary to provide the
Services described herein. This Agreement is made expressly subject to all
present and future valid orders and regulations of any regulatory body
having jurisdiction over the subject matter of this Agreement.
8.3 No Other Warranties. With respect to the UC Services to be
provided in, and to users accessing these services from the United States
and Canada, EffectNet warrants that it will exercise commercially
reasonable care in the performance of its obligations under this Agreement
EFFECTNET DOES NOT WARRANT THAT THE EFFECTNET SERVICES OR THE
PLATFORM THAT IT PROVIDES TO TELQUEST IS ERROR-FREE. IN ADDITION, THE
EFFECTNET SERVICES OR TELQUEST PLATFORM IS PROVIDED "AS IS" AND WITHOUT ANY
WARRANTY OF ANY KIND. EFFECTNET DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR ANY
DAMAGES ARISING FROM THE OTHER PARTY'S OR ANY THIRD PARTY'S USE OF THE
EQUIPMENT, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF
SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK SET
FORTH IN THIS SECTION. THIS LIMITATION ON LIABILITY IS INTENDED ITO APPLY
WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS CONTRACT HAVE BEEN
BREACHED OR PROVEN INEFFECTIVE. "AS IS" means the As Is condition of the
EffectNet Services to be provided as telQuest UC Services, including such
customer support, software and hardware as required in the condition as of
the Initial Launch Date agreed upon between the Parties and including any
planned enhancement as well as any other changes mutually agreed upon.
These products may as of the Initial Launch Date include works for hire for
the benefit of telQuest as further described in Section 9.2.
9. INTELLECTUAL PROPERTY.
9.1 General. Except as otherwise agreed in writing between the
Parties, EffectNet shall own any Patent applications and Patents issued on
inventions under this Agreement. All Inventions that are not the subject of
patents or applications will be considered Confidential Information of
EffectNet. Nothing in this Agreement shall be construed to transfer any
right title or interest in EffectNet's designs, inventions, copyrights,
trade secrets, trade names or other intellectual property.
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9.2 telQuest shall retain ownership rights to all DID and Toll-free
numbers associated with active subscriber accounts.
10. INDEMNIFICATION. Each Party ("Indemnitor") will defend, indemnify and
hold harmless the other Party and such Party's affiliates, directors,
officers, employees, proprietors, independent contractors, consultants,
partners, shareholders, representatives, customers, other telQuest, agents,
predecessors, successors, and permitted assigns (collectively,
"Indemnitees") from and against any claim, suit, demand, loss, damage,
expense (including reasonable attorneys' fees and costs) or liability that
may result from, arise out of or relate to: (a) acts or omissions arising
out of or in connection with this Agreement resulting in property damage;
by Indemnitor and (b) intentional or negligent violations by Indemnitor of
any applicable laws or governmental regulation.
telQuest shall indemnify and hold harmless EffectNet from and against
any and all claims, expenses judgments, liabilities, damages or losses,
including reasonable attorney's fees and expenses, and shall defend all
third-party actions and proceedings arising from any patent, copyright,
trade secret, mask work, trade marks or service marks to the extent such
claims are caused by telQuest. EffectNet shall indemnify and hold harmless
telQuest from and against any and all claims, expenses, judgments,
liabilities, damages or losses, including reasonable attorneys' fees and
expenses, and shall defend all third-party actions and proceedings arising
from any use, infringement or alleged infringement by the EffectNet UC
Services of any patent, copyright, trade secret, mask work or other
intellectual property right of any third party, to the extent such
infringement or alleged infringement is caused solely by the EffectNet UC
services. In the event that an injunction or restraining order is obtained
against the use or distribution of any product or deliverable pursuant to
this Agreement because of any infringement or alleged infringement of any
patent, copyright, trade secret, mask work or other intellectual property
right or any proprietary, contract or other right of any third party, or in
an EffectNet's reasonable judgment any product or deliverable is likely to
become the subject of a successful claim of such infringement, the
EffectNet's sole obligation to telQuest shall, shall be to, within a
reasonable time period: (i) procure for telQuest the right to use the
product or deliverable as provided in this Agreement, (ii) replace or
modify the EffectNet product or deliverable so it becomes non-infringing
without materially affecting the performance thereof, or if options (i) and
(ii) are not available despite commercially reasonable efforts, (iii)
terminate the licenses granted hereunder, accept the return of all copies
of all products.
11. LIMITATION OF LIABILITY. Except for damages arising under SECTION
(CONFIDENTIALITY) or SECTION (indemnification), in no event shall EITHER
PARTY be liable TO THE OTHER PARTY for any incidental, indirect, special,
punitive, consequential or similar damages of any kind including without
limitation, loss of profits, loss oF business or interruption of business,
whether sUCh liability is predicated on contract, strict liability or any
other theory WIthout regard to whether sUCh party has been advised of the
possibility of sUCh damages.
12. GENERAL PROVISIONS.
12.1 Monetary Values. All monetary values in the Agreement refer to
U.S. dollars.
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12.2 Assignment. EffectNet may assign its rights or obligations under
this Agreement.
12.4 Governing Law. This Agreement will be interpreted in accordance
with the laws of the state of Arizona, excluding its conflict of law rules.
The Parties agree that the federal and state courts located in Arizona
shall be the proper forum for any action brought against the other Party,
and each Party shall take all necessary actions to consent to the
jurisdiction of such courts.
12.5 Arbitration. All disputes arising out of or in connection with
this Agreement will be referred to and finally resolved by arbitration in
accordance with the rules of the International Chamber of Commerce; except
that either Party may, upon breach of this Agreement, seek an injunction to
protect any information sought to be disclosed by the other. The
arbitration proceedings will be conducted in Arizona. and the language of
the arbitration proceedings will be in English. All arbitration will be
conducted before a three (3) person panel, consisting of one (1) arbitrator
selected by telQuest, one (1) arbitrator selected by EffectNet and one (1)
arbitrator selected by the foregoing two (2) arbitrators. Each arbitrator
will be experienced in conducting international arbitration involving the
U.S. industry. The cost of the arbitration, including the fees and expenses
of the arbitrator(s), shall be shared equally by the parties unless that
award provided otherwise.
12.6 Notices. All notices or other between EffectNet and telQuest
under this Agreement shall be in writing and delivered personally, sent by
confirmed facsimile, by confirmed e-mail, by certified mail, postage
prepaid and return receipt requested, or by a nationally recognized express
delivery service addressed to the Parties at the addresses first set forth
below or at such other addresses, facsimile numbers or e-mail addresses or
to such individuals as either Party may specify by notice to the other
Party pursuant to this Section. All notices shall be in English and shall
be effective upon receipt. As a courtesy, Parties are encouraged to send
duplicate copies of notice, demands, or other by facsimile. Issuance of a
facsimile copy of a notice, request, demand or other communication shall
not replace the requirements for delivery by mail or overnight courier in
the manner provided in this Section, nor shall the date the facsimile
received constitute the official receipt date. Any Party may change the
address to which notices, requests, demands or other to such Party shall be
delivered or mailed by giving notice of the change to the other Party in
the manner provided in this Section. The addresses for the Parties for the
purposes of this Agreement are:
FOR EFFECTNET: FOR TELQUEST, INC.
XXX XXXXXX XXX XXXXXXX
CHIEF EXECUTIVE OFFICER PRESIDENT
EFFECTNET TELQUEST
PHONE: 000.000.0000 PHONE: 000-000-0000
FAX: 000.000.0000 FAX: 000-000-0000
12.7 Independent Contractors. This Agreement and the relations hereby
established do not constitute a partnership, joint venture, franchise or
agency between the Parties. Both parties are independent contractors acting
for their own accounts and neither is authorized to bind, or attempt to
bind, the other to any contract, general warranty, covenant or undertaking
of any nature whatsoever unless authorized in writing. Neither party shall
have the authority to accept delivery, collect or otherwise take possession
of any funds or other property of the other party, and if done so
inadvertently, shall
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immediately notify the other party, shall hold same in trust and shall
immediately deliver same to the other party. In all matters relating to
this Agreement neither party nor such party's employees or agents are, or
will act, as employees of the other party within the meaning of any federal
or state laws.
12.8 Severability. If any provision of this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term
or provision hereof. The Parties agree that they will negotiate in good
faith or will permit a court or arbitrator to replace any provision hereof
so held invalid, illegal or unenforceable with a valid provision, which is
as similar as possible in substance to the invalid, illegal or
unenforceable provision.
12.9 Entire Agreement And Modifications. This Agreement together with
any appendices, exhibits and attachments constitute the entire agreement
between the Parties with regard to the subject matter hereof and supersedes
all prior, agreements and understandings, whether written or oral, relating
to the subject matter hereof. This Agreement may only be modified by a
written instrument duly executed by each Party, making specific reference
to this Agreement and to the clause to be modified.
12.10 Captions. Where provided, captions of the sections and
subsections of this Agreement are for reference purposes only and do not
constitute terms or conditions of this Agreement, and shall not limit or
affect the terms and conditions hereof.
12.11 Waiver. No provision of, right, power or privilege under this
Agreement shall be deemed to have been waived by any act, delay, omission
or acquiescence on the part of either Party, its agents, or employees, but
only by an instrument in writing signed by an authorized officer of each
Party. No waiver by either Party of any breach or default of any provision
of this Agreement by the other Party shall be effective as to any other
breach or default, whether of the same or any other provision and whether
occurring prior to, concurrent with, or subsequent to the date of such
waiver.
12.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In making proof of
this Agreement, it shall not be necessary to produce or account for more
than one such counterpart.
12.13 Force Majeure. EffectNet shall have no liability to telQuest for
delays resulting from any event of Force Majeure or from any act or
omission of the telQuest. An Event of Force Majeure shall include without
limitation any delay or failure in performance due to acts of God,
earthquake, labor disputes, changes in law, regulation or government
policy, riots, war, fire, epidemic, acts or omissions of vendors or
suppliers, equipment failures, transportation difficulties, or other
occurrences which are beyond EffectNet's reasonable control.
12.14 Conflicts. To the extent the terms of this Agreement and the MOU
conflict, the terms of this Agreement shall be controlling.
Page 11
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first
written above.
EFFECTNET, L.L.C. TELQUEST, INC.
Signature: /s/ Xxxx Xxxxxxxxxx Signature: /s/ Xxx Xxxxxxx
----------------------------- --------------------------
Printed Name: Xxxx Xxxxxxxxxx Printed Name: Xxx Xxxxxxx
Title: Vice President Title: President
Date: November 7, 2000 Date: November 7, 2000
Page 12
APPENDIX P (PRICING)
EffectNet shall offer the following products to telQuest at the prices
attached thereto as follows:
[Omitted Confidential Portion - Omitted portion has been filed separately with
the SEC with request for confidential treatment of the omitted portion pursuant
to the Freedom of Information Act and SEC rule 24b-2]
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FIRST AMENDMENT TO
UNIFIED MESSAGING SERVICES AGREEMENT
Upon further consideration by the Parties, Section 4.5.1 of the Unified
Messaging Services Agreement dated November 7, 2000 shall be amended to read as
follows:
4.5.1 Deposit. telQuest will provide EffectNet with an
Initial Deposit upon execution of this agreement in the amount of
twenty-five thousand dollars $25,000.00. In the event that active UC
Services are not available to telQuest, by fault of EffectNet for at
least 10,000 Subscribers on the Initial Launch Date, (i) the deposit
will be immediately refunded to telQuest; (ii) telQuest shall not be
obligated to deliver deposit hereunder until such time as active UC
Services are available for at least 10,000 Subscribers; and (iii) the
Ramp Date will be extended for an amount of time commensurate with the
delay in providing active UC Service for 10,000 Subscribers. At the
end of each month, telQuest and EffectNet shall adjust the deposit so
that [Omitted Confidential Portion - Omitted portion has been filed
separately with the SEC with request for confidential treatment of the
omitted portion pursuant to the Freedom of Information Act and SEC
rule 24b-2.]
telQuest Technologies, Inc.
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Title: President
--------------------------------
Date: November 20, 2001
--------------------------------
EffectNet, L.L.C.
By: /s/ Xxx Xxxxxx
--------------------------------
Title: President & CEO
--------------------------------
Date: November 20, 2001
--------------------------------
Confidential
SECOND AMENDMENT TO
UNIFIED COMMUNICATIONS SERVICES GENERAL AGREEMENT
All references to EffectNet Inc., should be taken to mean Webley Systems Inc.
This Second Amendment to the Agreement, as previously amended, is entered into
effective November 1, 2001 ("Effective Date"), by and between EffectNet, Inc.
("EffectNet") and Verb Exchange, Inc. (formerly, telQuest Technologies, Inc.)
("Verbx"). This Second Amendment only modifies the Agreement, as previously
amended, to the extent specifically set forth below and neither Party shall be
deemed to hereby waive compliance by the other Party of any covenant, obligation
or condition contained therein. Any capitalized terms not specifically defined
in the Second Amendment shall have the same meaning as defined in the Agreement.
The Agreement, as previously amended, is modified as follows:
1. Delete SECTION 1.1 and add the following as the new SECTION 1.1:
1.1 Verbx hereby appoints EffectNet as its sole and exclusive provider
of UC Services to Verbx and its customers and end users. During the
Term of this Agreement, Verbx shall not develop, distribute, sell,
license or market goods, products or services that compete with the UC
Services other than existing excluding current and future development
of the Verbx MyMessenger and Echo platform to the extent that they, or
either of them, do not directly compete with the UC Services. Verbx
represents and warrants that it is not as of the Effective Date
developing, distributing, selling, licensing or marketing goods,
products or services that compete with the UC Services, other than the
Verbx MyMessenger and Echo platform as limited above. For purposes of
this Agreement, the word "customers" when used in relation to Verbx
and/or the UC Services shall include, but not be limited to, wholesale
and retail customers of Verbx.
2. Delete SECTION 1.3 and add the following as the new SECTION 1.3:
1.3 The Parties shall use their best efforts to launch the commercial
sales and marketing by Verbx of the UC Services on or before November
1, 2001 (the "Initial Launch Date").
3. Delete SECTION 2.3 and add the following as the new SECTION 2.3:
3.3 2.3 Product Development. The Parties agree that the UC Service
shall be upgraded for new Releases and Versions of the EffectNet
Service as commercially made available by EffectNet and as
further provided by this Section 2.3.
3.3.1 2.3.1 Upon at least thirty (30) days prior written
notice to Verbx, (which written notice is to include a
reasonable description of new features, functionality,
fixes, etc.), EffectNet shall have the right to place
new Releases into commercial service under the UC
Service brand. New Releases shall be incorporated into
the UC Service brand at no additional charge. "Release"
shall mean a modification to the UC Service usually
intended to correct Errors (as defined at Section 3.3)
and that may not include additional features, levels of
performance or functionalities. Typically, a Release is
identified by the numeral(s) one or more places from the
left of the designation for such Release with a newer
Release having the larger numeral.
3.3.2 2.3.2 Upon at least ninety (90) days prior written
notice to Verbx, (which written notice is to include a
reasonable description of new features, functionality,
fixes, etc.), EffectNet shall have the right to place
new Versions into commercial service under the UC
Service brand. New Versions shall be incorporated into
the UC Service brand at such additional charge(s) as
EffectNet shall include in its written notice to Verbx
announcing the new Version. "Version" means a new
version of the
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Confidential
UC Service that contains a significant new functionality
or level of performance or features. Typically, a
Version is identified by the numeral(s) one or more
places from the left of the first decimal point from the
left in the designation with the newer Version having
the larger numeral.
3.3.3 2.3.3 EffectNet shall promptly notify Verbx of updates
containing modifications, enhancements, extensions and
corrections related to Errors. "Error" means any failure
of the UC Service to conform in all material respects to
the specifications therefor, other than any
nonconformity resulting from end user misuse, improper
use, alteration or damage to the UC Service or the
combining or merging of the UC Service with any hardware
or software not supplied or identified as compatible by
EffectNet or the failure by Verbx to produce and deliver
accurate fulfillment materials and supplemental
amendments thereto. EffectNet shall follow its standard
procedures in the classification and response to Errors.
EffectNet shall use commercially reasonable efforts in
the application of such procedures to correct all
Errors, taking into account the severity of the Error
and the seriousness of its impact, if any, on end users.
Verbx shall promptly notify EffectNet of any reports of
Errors received by Verbx from its customers or end
users.
4. Delete SECTION 2.9 and add the following as the new SECTION 2.9:
2.9 Fraud. Verbx assumes only the risk of liability associated with fraud
arising from end users' use of the UC Services, and only in the event that
EffectNet has provided daily call detail in accordance with Section 2.7 above.
In such event, Verbx will defend and hold EffectNet harmless from any and all
claims arising therefrom. In the event that EffectNet has failed to provide
daily call detail in accordance with Section 2.7 above, then EffectNet assumes
the risk of liability associated with any fraud arising from end users' use of
the UC Services during the period of time in which it failed to provide the
required call detail. EffectNet further assumes the risk of liability associated
with any and all fraud or misuse: (i) by EffectNet's customer service
representatives and other EffectNet employees and agents relating to end user
account information; and (ii) arising from third party fraud against, intrusion
into, or "hacking" of, applications hosted on the EffectNet platform. EffectNet
shall defend and hold Verbx harmless from any and all claims arising therefrom.
5. Delete SECTION 2.10 and add the following as the new SECTION 2.10:
2.10 End User Support. EffectNet shall provide customer support to end
users, including, but not limited to, provisioning, questions
related to features and functionalities of the UC Services, and
billing inquiries ("Tier One"). EffectNet shall provide 24 by 7
technical support to end users, including, but not limited to, the
use of specific features of the UC Services, and interoperability
with EffectNet-supported systems, devices and communications
transport ("Tier Two").
2.10.1 Verbx may assume the responsibility for Tier One and Tier Two
customer support upon written notice to EffectNet specifying
the date that Verbx shall assume such responsibility and
specifically referencing this Section 2.10. Any such notice
by Verbx shall be irrevocable and final and EffectNet's
obligations to provide Tier One and Tier Two customer support
in accordance with Section 2.10 shall thence forth cease as
of, and after, the date so specified by Verbx in such notice
thereof.
2.10.2 Notwithstanding anything to the contrary herein, EffectNet
shall provide 24 by 7 network operations center support for
power outages and systems and network outages ("Tier Three")
at no additional charge.
2.10.3 Call items outside the scope of Effectnet support services
include, but are not limited to, non-EffectNet related
software problems, call forwarding issues and any
non-EffectNet products, services or billing issues as
relating to non-EffectNet products and services.
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Confidential
6. Delete SECTION 2.11 and add the following as the new SECTION 2.11:
2.11 Orders and Acceptance. Customer is responsible for providing to Webley
account information for each End User as required by Webley to activate and
maintain End User accounts ("Orders"). Verbx shall be responsible for the
production and delivery of such customer or end user fulfillment materials as
Verbx deems necessary and appropriate; provided, however, that Verbx shall
update all such materials, including notices to customers and end users of
updates to previously delivered materials, to incorporate Revisions and Versions
of the UC Service in a timely and accurate manner provided that EffectNet
delivers product or service version updates in a timely and accurate manner.
EffectNet reserves the right to decline or delay acceptance, or to reject, any
Order in its absolute discretion. An Order shall be deemed accepted by
EffectNet's activation of the end user account for the UC Service requested in
such Order.
7. Delete SECTION "2.13 2.12 Minimum Commitment."
8. Delete the last sentence of SECTION 5.1 and add the following sentence:
This Agreement shall be automatically renewed for succeeding twelve (12) month
terms unless written notice of termination is delivered by either Party not less
than one hundred and eighty (180) and not more than two hundred and ten (210)
days prior to the expiration of the then current term of the Agreement.
9. Delete SECTION 4.3 and add the following as the new SECTION 4.3:
4.3 Pricing. Pricing for each end user UC Service account activated by
Webley in accordance with Section 2.11 shall include [Omitted
Confidential Portion - Omitted portion has been filed separately with
the SEC with request for confidential treatment of the omitted portion
pursuant to the Freedom of Information Act and SEC rule 24b-2.]
10. Delete SECTION 5.2 and add the following as the new SECTION 5.2:
5.2 Events of Default. Either Party may terminate this Agreement: (a) if,
upon written notice of payment default, the other Party fails to pay any such
payment on or before the tenth (10th) calendar day next succeeding the date of
such written notice; (b) if the other Party fails to perform or commits a breach
of its material obligations (other than payment obligations) under this
Agreement and the breaching Party fails to either (i) cure the breach within
seven (7) calendar days of written notice of such breach by the other Party, or
(ii) if such breach is incapable of cure within seven (7) calendar days, the
breaching Party commences efforts to cure within seven (7) calendar days of the
date of such written notice of breach and thereafter uses its best efforts to
effect a cure until such breach is cured, but in no event shall such breach
remain uncured longer than ninety (90) days after the date of written notice
thereof; (c) if the other Party is in breach of Section 7 (Confidentiality); (d)
if the other Party becomes insolvent or admits in writing its inability to pay
debts as they mature, or makes an assignment for the benefit of creditors; or
(e) if a petition under any foreign, state or United States bankruptcy act,
receivership statute, or the like is filed by the other Party and is not
dismissed within sixty (60) days after such filing. Termination due to default
under this Section shall be effective immediately upon receipt of written notice
to the defaulting Party.
11. Delete SECTION 9.2 and add the following as the new SECTION 9.2:
9.2 Ownership of DID and Toll Free Numbers. Although EffectNet is the owner of
record with the carrier that provides telephone numbers to Verbx customers and
end users (the "Verbx Numbers"), EffectNet acknowledges that EffectNet's
ownership and control of the Verbx Numbers shall be on behalf of Verbx and upon
expiration or termination of this Agreement, other than by EffectNet in
accordance with Section 5.2, EffectNet shall use commercially reasonable
efforts, at the sole cost and expense of Verbx, to cooperate with Verbx to port
Verbx Numbers to the carrier(s) designated by Verbx.
12. Delete APPENDIX P.
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Confidential
IN WITNESS WHEREOF, the Parties have caused this Agreement, as previously
amended, to be executed by their duly authorized representatives as of the
Effective Date.
EffectNet, Inc. Verb Exchange, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------- --------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxxx
Title: Senior VP Sales Title: President
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