Exhibit 10.2
AGREEMENT
AGREEMENT made this 5th day of January, 1999 by and between The Xxxxxxxx
Group, with its principal offices located at 000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX
(hereinafter "Xxxxxxxx Group") and NetWolves Corporation, with its principal
offices located at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter
"NetWolves").
W I T N E S S E T H :
Whereas, The Xxxxxxxx Group Group is a leading consulting organization
serving the needs of the automotive aftermarket, convenience store and oil
industry and, through its wholly-owned business education subsidiary, The
Xxxxx-Xxxxx Institute, maintains an extensive library of training modules
available to its clients customer base; and
Whereas, during the past eleven (11) years, Xxxxxxxx Group has established
a primary client list as set forth in Exhibit A annexed hereto, which includes
Amoco Oil, British Petroleum, Chevron, Chrysler, Circle K Marketing, Exxon,
Ford, General Motors, Irving Oil Ltd., Mobil Oil, NAPA, X.X. Power, Shell,
Southland, Sunoco, Texaco/Star Enterprise, Tosco, and Unocal; and
Whereas, Xxxxxxxx Group has concluded a contract and obtained further
commitments from several client companies, samples of which are set forth in
Exhibit B annexed hereto, to expand training at retail sites which will rely
upon certain Internet technology developed by NetWolves; and
Whereas, NetWolves specializes in the development of multi-services
Internet gateway products; and
Whereas, the parties are desirous that NetWolves be appointed as the
exclusive provider of the delivery system which will enable Xxxxxxxx Group and
its subsidiaries to sell its proprietary training programs to approximately
40,000 retail locations throughout the United States, thereby facilitating
simultaneous interactive distance learning at all sites.
NOW, THEREFORE, in consideration of the mutual premises and the covenants
contained herein, the parties hereby agree as follows:
1. Appointment. Xxxxxxxx Group hereby appoints NetWolves as its exclusive
provider in the United States of a delivery system whereby Xxxxxxxx Group and
its subsidiaries will sell its proprietary training programs to approximately
40,000 retail locations in the United States, thereby facilitating simultaneous
interactive distance learning at the sites. NetWolves accepts such appointment
in accordance with the terms of this Agreement.
2. Product. To accommodate the needs of Xxxxxxxx Group's customers,
NetWolves agrees to customize its FoxBox multi-services Internet gateway product
(the "Product") in the form of Exhibit C annexed hereto.
3. Delivery Schedule. NetWolves agrees to deliver the Product substantially
in accordance with the following schedule:
350 units June - December 1999
4,150 units January - December 2000
9,500 units January - December 2001
12,500 units January - December 2002
14,000 units January - December 2003
Xxxxxxxx Group agrees to provide continuous ninety (90) day forecasts
to assist NetWolves in its production schedule.
4. Term of Agreement. This Agreement shall continue for a period of five
(5) years and thereafter shall be automatically renewed for an additional five
(5) year term unless written notice is provided by either party on or prior to
six (6) months from the expiration date of this Agreement that the Agreement
will not be renewed.
5. Transfer Pricing. Each unit shall be paid for by the end user retail
site (or its corporate parent) at a rate of $200 per month exclusive of any tax.
All monthly payments shall be made directly to Supplier at a lockbox as
prescribed by NetWolves. In the event Xxxxxxxx Group seeks to have one monthly
invoice for the retail site to pay both content and the technology, NetWolves
and Xxxxxxxx Group will direct that all payments be sent to a receiving bank
which will deposit the appropriate amount to each of their accounts.
6. NetWolves Responsiblity. Subject to the end user being in compliance
with the terms of the rental agreement, NetWolves, at its discretion, will
repair and/or replace the product should the product fail to perform its
intended purpose and provide free software upgrades within the base product
platform during the term of the rental agreement. It will be NetWolves
responsibility to arrange installation of the product at the site upon
instructions of Xxxxxxxx Group and receipt of a properly executed agreement by
the end user.
7. Xxxxxxxx Group Responsibility. Xxxxxxxx Group will be responsible for
the payment of all marketing, sales and contents expense in order to secure the
retail site. Xxxxxxxx Group will arrange to invoice the customer and obtain any
and all approvals required from the Parent/Supplier company of the retail outlet
and shall be responsible for providing all the content which is viewed by the
end user. Xxxxxxxx Group will provide NetWolves via e-mail to the attention of
NetWoves' Director of Sales and Installation, an ongoing weekly list of sites
which require installation. Xxxxxxxx Group further agrees not to provide content
to the retail sites during the term of this Agreement other than through the
NetWolves product.
8. Rental Agreement. NetWolves and Xxxxxxxx Group shall, within ten (10)
days of this Agreement, approve the final form of a rental agreement which
contains the following terms and conditions:
(a) The rental agreement shall be for a four (4) year period.
(b) Monthly rental payments are $200. During the term of the rental
agreement, NetWolves will not increase the monthly rental payment.
(c) NetWolves will, at its discretion, repair or replace and upgrade
software functionality provided the end user is in compliance with the
terms and conditions of the rental agreement.
(d) All right, title and interest in the Product vests exclusively
with NetWolves.
(e) The monthly fee payable to Xxxxxxxx Group for training content is
in addition to this fee.
(f) The end user agrees to use due care when using the product and not
to allow the product to be removed from the installed location without
the written permission of NetWolves.
(g) The agreement is non-cancellable for the term and the end
user-client end user is responsible for the monthly payments.
(h) The agreement automatically renews for a successive term unless
cancelled in writing six (6) months prior to the expiration of the rental
agreement.
(i) At the expiration of the rental agreement, NetWolves may reclaim
the product.
(j) The obligations under the rental agreement may be required to be
personal due to credit requirements in the case of an independent
franchise.
(k) At the execution of the rental agreement, payment for the first
month, last month and one month's security is required.
(l) An electrical outlet and a POTS line at the site of installation
is required.
(m) A one time set up fee for installation may be required.
(n) A service fee of 14% of the price per year ($28) per month may be
charged beginning year two. Should the service program not be subscribed
to, any and all service calls will be billed to the end user retail site.
9. Termination. The exclusivity to NetWolves set forth herein shall
terminate in the event NetWolves breaches the mutual terms of this Agreement and
such breach continues after sixty (60) days written notice specifying such
breach. Upon such termination, NetWolves shall continue to be fully paid for all
products sold and services performed for the duration of all rental agreements.
10. Intellectual Property Rights. All right, title and interest in the
Product shall be the exclusive property of NetWolves and all right, title and
interest in the content shall be the exclusive property of Xxxxxxxx Group.
11. Public Announcements. Each party agrees that during the term of this
Agreement, prior to making any public announcement of any nature whatsoever
relating to this Agreement, or the relationship between the parties generally,
it first will consult with and obtain the approval of the other party with
respect to the content, timing and method(s) of such announcement.
Notwithstanding the foregoing, each party may make such public announcements or
disclosures with respect to this Agreement and the transactions contemplated
hereby as it deems in good faith to be required by applicable law.
12. Force Majeure. Any delays in or failure of performance by either party
under this Agreement shall not be considered a breach hereof if such delay or
failure is occasioned by an event beyond the reasonable control of the party
affected ("force majeure"); provided that any party whose performance is so
delayed shall give prompt notice thereof to the other party and shall use all
reasonable endeavors to comply with the terms of this Agreement as soon as
possible.
13. Binding Agreement; Assignability. This Agreement shall be binding upon
and inure to the benefit of the respective parties hereto and thereto and their
respective heirs, executors, administrators, legal representatives, successors
and assigns.
14. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties in respect of the subject matter hereof and thereof
and supersede all prior agreements, arrangements and understandings relating to
the subject matter hereof and thereof. This Agreement may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no oral unwritten agreements between the parties.
15. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provisions hereof or thereof, and the
remainder of the Agreement shall be construed as if such invalid or
unenforceable provision were modified to the extent necessary to make it valid
or enforceable but remain within the spirit of this Agreement, or if that is not
possible, then omitted.
17. Amendment or Cancellation; Waiver. This Agreement hereto may be
amended, modified, superseded or cancelled, and any of the terms hereof or
thereof may be waived, only by a written instrument executed by each party
hereto or thereto, as the case may be, or, in the case of a waiver, by the party
or parties waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the rights
at a later time to enforce the same. No waiver by any party of any condition or
of the breach of any term contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be construed as a
further or continuing waiver of any such breach or the breach of any other terms
of this Agreement.
18. Notices. Any notice to a party hereto pursuant to this Agreement shall
be given by certified or overnight mail or by facsimile addressed as follows (or
to such other address as any party shall designate by written notice to the
other parties);
If to the NetWolves: 000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Copy to: Xxxxx X. Xxxxxxxxx, Esq.
Blau, Kramer, Wactlar & Xxxxxxxxx, P. C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 0x0000
If to Xxxxxxxx Group: 000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Copy to: Xxxxx Xxxxxxxxx, Esq.
Xxxxx Xxxxxxxxx & Associates
00 Xxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000
Notices given by hand shall be deemed given as of the date when they are
delivered. Notices given by Federal Express shall be deemed given as of the
business day next following the date on which they are delivered to Federal
Express in time for and marked and prepaid for next business day delivery.
19. Governing Law. This Agreement shall be construed and interpreted
according to the laws of the State of New York without regard to its conflicts
of laws provisions. Any suit, action or proceeding arising out of this Agreement
shall be instituted in the state or federal courts in the State of New York.
20. Arbitration. All disputes or controversies (whether of law or fact) of
any nature whatsoever arising from or relating to this Agreement and the
transactions contemplated hereby shall be decided by the American Arbitration
Association (the "Association") in accordance with the rules and regulations of
the Association, except that either party shall have the right in accordance
with Section 18 hereof to seek equitable relief independently, including, but
not limited to, temporary restraining orders, provisional and/or permanent
injunctive relief, specific performance or any other equitable remedy as may be
appropriate to enforce or prevent the violation of, any of the terms and
conditions of this Agreement.
In the event a dispute or controversy arises, either party may submit
the dispute to the American Arbitration Association in Garden City, New York for
arbitration in accordance with and subject to the rules of the American
Arbitration Association then in effect, and specifically, the Supplementary
Procedures for Large, Complex Disputes (the "Procedures"). The parties agree
that the arbitration shall be conducted before three arbitrators. Additionally,
the parties agree that prior to the conduct of hearings, they will cooperate in
the exchange of documents, exhibits and information pursuant to detailed demands
therefor, and such other discovery as they may agree upon or the arbitrators may
deem appropriate in the circumstances after the Preliminary Hearing described in
Section 4 of the Procedures is held. The decision of a majority of the
arbitrators shall be binding upon all parties, and a judgment or decree upon the
decision rendered by the arbitrators may be entered in any court of competent
jurisdiction. Each party required to participate shall be responsible for its or
his pro rata share of the fees and costs of arbitration, including, but not
limited to, the cost of a full stenographic record of the proceedings which the
parties hereby agree in advance will be required; provided, however, that the
arbitrators shall be authorized to award legal fees and costs to the prevailing
party, based upon their consideration of the merits of the claims, the merits of
the defenses, and the results obtained from the arbitration.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on the day first above written.
The Xxxxxxxx Group
By: /s/ Xxxxxx X. Xxxxxxxxxx
NetWolves Corporation
By: /s/ Xxxxxx X. Xxxxxxx
