CONSULTING AGREEMENT
Agreement dated as of November 30, 1998, between Guibert Englebienne
("Englebienne") and Axiom Communications Group, Inc., a New York Corporation
(the "Company").
WHEREAS, Englebienne is a consultant for the Company; and
WHEREAS, the Company is compensating Englebienne from time to time;
NOW THEREFORE, the parties hereto agree as follows:
1. Acknowledgement. Englebienne understands and acknowledges that:
(a) The Company is engaged in a continuous program of research, design,
development, production, publishing, marketing and servicing with respect to its
business;
(b) Englebienne's consultancy creates a relationship of confidence and
trust between Englebienne and the Company with respect to certain information
applicable to the business of the Company or the business of any client,
customer, or business partner of the Company, which may be made known to
Englebienne by the Company or by any client, customer, or business partner of
the Company, or learned by Englebienne during his period of employment.
(c) The Company possesses and will continue to possess information that
has been created, discovered or may be assigned or otherwise conveyed to the
Company, which information has commercial value in the Business in which the
Company is engaged and is treated by the Company as confidential.
(d) As used herein, the period of Englebienne employment includes any
time during which Englebienne is retained by the Company as a consultant
pursuant to the terms of this Agreement.
2. Commitment to Company. During the period of Englebienne's consultancy
with the Company, Englebienne will devote all of his business time, energy and
attention to the business
and affairs of the Company and is reasonably necessary to fulfill his
obligations hereunder.
3. Work for Hire. Englebienne acknowledges that all right, title and
interest he obtains in all works of authorship, designs, computer programs,
copyrights and copyright applications, inventions, discoveries, developments,
know-how, systems, processes, formulae, patent and patent applications, trade
secrets, new products, internal reports and memoranda, strategies, and marketing
plans conceived, devised, developed, written, reduced to practice, or otherwise
created or obtained by Englebienne pursuant to this consultancy agreement for
the Company (the "Intellectual Property") are regarded as "works for hire."
Englebienne hereby transfers and assigns to the Company all right, title, and
interest to the Intellectual Property. Promptly after Englebienne obtains
knowledge of any Intellectual Property, he will disclose it to the Company. Upon
request of the Company, Englebienne will execute and deliver all documents or
instruments and take all other action as to the Company may deem reasonably
necessary to transfer all right, title, and interest in any Intellectual
Property to the Company; to vest in the Company good, valid and marketable title
such Intellectual Property; to perfect, by registration or otherwise, trademark,
copyright and patent protection of the company with respect to such Intellectual
Property; and otherwise to protect the Company's trade secrets and proprietary
interest in such Intellectual Property.
4. Xxxxxxxxxxxxx.Xx the event of the termination of Englebienne's
consultancy herein for any reason, Englebienne will deliver to the Company all
documents, notes, drawings, blueprints, formulae, specifications, computer
programs, data and other materials of any nature pertaining to any Intellectual
Property covered by the sale of Technology Agreement and this agreement or to
Englebienne's work with the Company, and will not take any of the foregoing or
any reproduction of any of the foregoing that is embodied in a tangible medium
of expression.
5. Confidentiality. At all times, both during Englebienne's consultancy with
the Company and after its termination, Englebienne will keep in strict
confidence and will not disclose any confidential or proprietary information
relating to the business of the Company, or any client, customer, or business
partner of the Company, to any person or entity, or make use of any such
confidential or proprietary information for my own purpose or for the benefit of
any person or entity, except as may be necessary in the ordinary course of
performing the duties as an employee of the Company.
6. Restrictive Covenant. Englebienne hereby acknowledges and recognizes his
possession of confidential information and highly competitive nature of the
business of the Company. Accordingly, Englebinne hereby agrees that he will not,
during the period of this agreement, and as long as Axiom is not in breach
hereunder (i) directly or indirectly engage in any Competitive Business (as
defined below), whether such engagement shall be as an employer, officer,
director, owner, employee, partner or other participant, (ii) assist others in
engaging in any Competitive Business in the manner described in the Company or
its affiliates or subsidiaries to terminate their employment with the Company or
such affiliate or subsidiary or engage in any Competitive Business. "Competitive
Business" means and includes the business of providing telecommunications
services.
Englebienne understands that the foregoing obligation is not meant to
prevent him from earning a living or fostering his career. It does intend,
however, to prevent any Competitive Business from gaining any unfair advantage
from Englebienne's knowledge of confidential information.
7. Other Agreements. Englebienne represents and warrants that his execution
and delivery of this Agreement and performance of all the terms of this
Agreement do not and will not breach any agreement to keep in confidence
proprietary information acquired by him in confidence or trust. Englebienne has
not entered into and shall not enter into any agreement, either written or oral,
in
conflict with this Agreement. Englebienne represents that he has not brought
and will not bring with him to the Company or use at the Company any materials
or documents of an employer or a former employer that are not generally
available to the public, unless express written authorization from such employer
for their possession and use has been obtained. Englebienne also understands
that he is not to breach any obligation of confidentiality that he has to any
employer or former employer and agrees to fulfill all such obligations during
the period of his affiliation with the Company.
8. Obligations. Englebienne will consult for the Company for a period of two
(2) years from the date of this agreement or until May 1, 2000, whichever is
later (the "Term"). During the Term, the parties agree to use the following
procedures and timetable.
(a) The Company will send via facsimile transmission, telephone, beeper
or email (collectively referred to herein as, "Acceptable Channels") a request
to Englebienne relating to (i) the correction of a defect in the Software (as
the term is defined in the Sale of Technology Agreement signed between Axiom and
Englebienne), (ii) the maintenance of the Software, (iii) the improvement or
enhancement of the Software, (iv) the expansion of the Software, and/or (v) any
other task relating to the Software (collectively referred to herein as
"Tasks"). In the event that there is no response within one-half hour, Axiom
shall send another request via an alternate mode of Acceptable Channels.
(b) Within 45 minutes of sending through Acceptable Channels a Task,
Monday through Friday, between the hours of 9 a.m. to 5 p.m. New York time,
Englebienne will acknowledge receipt of said Task using any of the Acceptable
Channels (the "Acknowledgement").
(c) Within (1) business day (business day is defined as working week
days excluding US banking holidays) Englebienne will make all reasonable efforts
to forward to Axiom a completion schedule (the "Completion Schedule") in
accordance with the following guidelines:
Level 1 Task
------------
A function or subsystem of the Software is defective and severely
restricts the ability of the company to perform its activities.
Englebienne will provide corrective action or a permanent solution
within two (2) business days from the date of Acknowledgement, or as
soon thereafter as reasonably feasible in light of the complexity and
the impact of the problem on the Company's business.
Level 2 Task
------------
A function or subsystem of the Software is defective but normal
activities may be performed by using an alternative solution.
Englebienne will provide corrective action or a solution within three
(3) business days from the date of Acknowledgement, or as soon
thereafter as reasonably feasible.
Level 3 Task
------------
Any task that is not a level 1 Task or level 2 Task will be completed
within fifteen (15) business days, taking into account the priority of
other Tasks already assigned to Englebienne and taking into
consideration the fact that Englebienne can set aside up to eight (8)
hours a week to complete the Manuals (as defined below). When
Englebienne submits the Completion Schedule, he should take into
account the scheduled completion date for prior submitted level 3 Tasks
whose scheduled completion dates have been shifted due to a
reprioritization of level 3 Tasks
Level 4 Task
------------
Anytime Englebienne is not working on a Level 1 through 3 Task, he will
work on the completion of the Manuals (as the term is defined in
paragraph 9 herein) or on the addendum's to be completed Manuals, to
ensure that the Manuals are fully updated and provide detailed
explanations for all enhancements, additions, changes made to the
Software during the term. Such Manuals shall be deemed up to date if
they contain all such items as of thirty (30) days prior to delivery of
the Manuals. If the Company does not respond to Englebienne's
Completion Schedule within six (6) hours of its submission, it will be
deemed accepted by the Company
9. Manuals. Englebienne acknowledges that part of the compensation paid to
him by the Company from March, 1997 through February, 1998 was to develop an
Administrative System Manual detailing every aspect of the billing system,
corporate database in SQL, and rate and customer accounts tables. Englebienne
agrees and understands that he must complete the following manuals (the
"Manuals") by the dates specified.
(a) On or before November 1, 1998, and English version Software Manual
(the "Software Manual") reasonably understandable by an entry level programmer
or engineer and setting forth in detail, every aspect of the Software through
October 1, 1998.
(b) On or before January 1, 1989, an Administrative System Manual, (the
"Software Manual", detailing the modifications up to 30 days prior to January 1,
1999;
(c) Englebienne agrees to keep the manuals fully updated by the 1st day
of every quarter (i.e, January 1, April 1, June 1, September 1) through the Term
of this agreement.
(d) If the completion or updating of either Manual is delayed, at any
time, by more than 30 (thirty) days, Englebienne's compensation under this
agreement will be withheld until the Manual(s) is/are completed.
10. Technical Support. Englebienne will provide electronic mail and voice
mail support to the Company to respond to any questions regarding the Software.
Englebienne will receive, and respond via acceptable channels) to, such
questions Monday through Friday (excluding National Argentina Holidays) from
9:00 a.m. to 5:00 p.m., New York time. There is no limit to the number of such
questions. Englebienne agrees to respond to all such questions within 45 minutes
(excluding weekends and national Argentine holidays) after Englebienne's receipt
of the same. Furthermore,
Englebienne agrees to make reasonable efforts to notify the Company of any
technology upgrades or new technologies that may enhance or in anyway improve
the software, and in the event the Company should purchase such software or
technologies, Englebienne agrees to install said software or technologies,
pursuant to paragraph 8 (c) herein.
11. Fees and Costs.
(a) For services provided during the Term, the Company agrees to pay
Englebienne the sum of $5,000.00 per month.
(b) Englebienne's compensation hereunder is based upon an estimated 40
hours per week required to perform the services hereunder and in completing the
Manuals. The parties agree that completion of the Manuals will encompass the
equivalent of one full working day per week.
(c) Notwithstanding anything to the contrary herein, Englebienne shall
be entitled to take 60 days unpaid vacation at his own expense and at his own
discretion. During such vacations and at all other times, the Company agrees to
make available to Englebienne at the Company's expense, international call back
services to enable Englebienne to respond to emergencies and Englebienne agrees
to provide a telephone number or other means of communication, at the Company's
expense, so the Company can reach Englebienne while on vacation. Englebienne
agress to give the Company no less than 45 days written notice of vacations or
holidays. Englebienne further agrees not to take more than thirty (30)
consecutive days, holidays or vacation;
(d) The Company may terminate this agreement within 15 days notice if
Englebinenne defaults on any of his obligations herein and fails to cure such
default within 10 days of Company's notice of default to Englebienne. In the
event of early termination of Englebienne's agreement herein, the parties herein
will have no further obligations to each other, except as set forth in the Sale
of Technology Agreement.
12. Survivability. Paragraphs 1-7 and 13 & 14 of this Agreement will survive
the expiration or any termination of this Agreement.
13. Warranty Disclaimer. Englebienne will use all reasonable commercial
efforts to provide the maintenance and consulting services requested by the
Company under this Agreement in a professional and workmanlike manner, but
Englebienne cannot guarantee that every enhancement or modification requested by
the Company, that is beyond the basic functions of the Software, will be
completed. Englebienne warrants that for a period of twelve (12) months from May
1, 2000, the Software's enhancement and changes made during the Term of this
agreement, are free of defects in programming and operation, shall function, if
applicable, as generally set forth in Schedule A attached hereto, and are
merchantable and fit for the sale, provisioning, invoicing and charging of
communication services on-line.
In the event that the Software's enhancements made during the Term of this
agreement fail to perform in accordance with this warranty, the Company shall
inform Englebienne of such fact and Englebienne shall provide such programming,
design, and installation services as may be necessary to correct such errors,
free of charge. In the event that the Software and Englebienne will return all
monthly payments made up to the date the Software is returned, and neither party
will have any further obligation to the other party.
14. Limitation of Liability. The Company agrees that Englebienne's liability
under this Agreement is limited to the fees paid hereunder by the Company. IN NO
EVENT SHALL ENGLEBIENNE BE LIABLE TO THE COMPANY FOR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR FOR ANY LOSS OR INJURY TO EARNINGS, PROFITS OR
GOODWILL, OR FOR INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED
BY THE COMPANY CAUSED DIRECTLY OR INDIRECTLY BY ANY
BREACH OF THIS AGREEMENT OR THE PROVISION OF ANY MATERIALS OR SERVICES
HEREUNDER. THIS LIMITATION SHALL APPLY EVEN IF ENGLEBIENNE KNOWS OR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. General Provisions.
15.1 This Agreement shall be governed by and interpreted under the laws of
the State of New York without regard to its conflict of laws provisions.
15.2 Any dispute arising out of or relating to this Agreement shall be
resolved pursuant to the rules of the American Arbitration Association in New
York City. The parties shall each bear equally the fees of the arbitrator.
Nothing herein shall preclude either party from seeking or obtaining injunctive
relief in aid or arbitration.
15.3 No modification of this Agreement, nor any waiver of any rights, shall
be effective unless assented to in writing to the party to be charged.
15.4 The waiver of any breach or default shall not constitute a waiver of
any other right hereunder or any subsequent breach of default.
15.5 Any required notices shall be given in writing, and shall be delivered
personally, electronically or by mail. Notices shall be deemed served when
personally delivered or, if delivery is by mail, five (5) days after being post
marked or, if delivery is electronically, when a response is received from the
recipient. Notices should be sent to:
If to Buyer:
Xxxxxxxxx Xxxxxxxxxxx
C/o Axiom Communications Group, Inc.
00 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
If to Seller:
Guibert Englebienne
Xx. Xxxxx 0000, 0xx Xxxxx
Xxx xxx XXXXX 0000
Xxxxxxxxx
15.6 Neither party shall be liable for any loss, damage, delay or penalty
resulting from acts of God or other causes beyond such party's reasonable
control.
15.7 This Agreement constitutes the entire and exclusive agreement between
the parties hereto with respect to the subject matter hereof.
15.8 Neither this Agreement nor any rights under this Agreement may be
assigned or otherwise transferred by the Company or Englebienne, in whole or in
part, whether voluntarily or by operation of law, including by way of sale of
assets, merger or consolidation, without the prior written consent of
Englebienne, which consent will not be unreasonably withheld, except that
Englebienne may assign his rights hereunder to a corporation or limited
liability company in which he holds a controlling interest.
This Agreement is accepted and made effective as of the date first written
above.
AXIOM, INC.
By: s/ Xxxxxxxxx Xxxxxxxxxxx By: s/ Xxxxxx Xxxxxxx
----------------------------- -----------------------------
Xxxxxxxxx Xxxxxxxxxxx Xxxxxx Xxxxxxx
s/ Xxxxxxxx Xxxxxxxxxxx
-----------------------------
Guibert Englebienne
Schedule A
The software consists of a set of scripts and programs that enable customers and
the Company to perform a set of tasks in real time.
The software allows customers on-line to:
o Survey country specific rates
o Sign up new customers in real time and use the call back services
immediately
o Review call detail reports upon hanging up. (Once direct connection to
the switch is established using third party software Solaris. Until
then, within 24 hrs.)
o Automatically send monthly modification of invoices to customer's via
e-mail and automatically send invoices from Company's web site.
o Create an account for callback services, including:
o Validating information inputted by Customer
-------------------------------------------
The script includes several restrictions in order to ensure that
the information provided by each new customer is valid and that it
is submitted in a manner that is consistent with the standards set
in the corporate database. For internal usage, the script also
allows for the creation of a demonstration (demo or test) account.
o Obtaining credit card authorization
-----------------------------------
To verify each new credit card, the company uses a third party
program called PCHub by Tellan Software. This program uses a
conventional modem an regular telephone line to connect with the
credit card bureau currently in use by the Company. PCHub
currently verifies cards form Visa, MasterCard and American
Express. PCHub obtains an instant authorization code, which allows
the Company to charge the customer at the end of every billing
cycle. The time required to obtain an authorization depends upon
the availability of the line, modem and network. The system can
handle multiple authorizations simultaneously by submitting the
request to PCHub. These requests are managed by the PCHub.
o Creating customer accounts on the corporate database
----------------------------------------------------
Using a third party software, Jconnect libraries form Sybase, the
script, which is written in Java, seamlessly connects to the
administrative database and creates a record on each new customer
based upon the password, personal ad payment information provided
by each customer at sign-up. Multiple users can sign-up at the
same time. At the request of the Company, currently the customer
is able to activate call back services for a maximum of three
separate telephone numbers, however, the software is capable of
being altered to activate as many separate telephone numbers as
desired. Each telephone number is stored separately in the DID
table in the administrative/corporate database under the
customer's account number. Only the first telephone number
requested by a new customer is automatically activated with a
US$ 20 credit limit, (set in the credit table within the
administrative/corporate
database) until the customer sends signed photocopy of the credit
card. When the company receives the new customer's confirmation
fax and credit card identification has been established, an
operator activates the remaining accounts on the
administrative/corporate database and the switch, and brings the
credit limit to the authorized level.
o Activating the account on the switch to enable immediate
access to the service
---------------------
The communications switch and corporate database that is being
used by the Company stores all the information relating to the
customer's account number, password, return numbers and credit
limits on text files and tables. This enables customers to have
immediate access to the call back service. The third party switch
is currently running under Unix on a different server than the Web
server. In order for the script to update the switch's table with
new information, it is necessary for the web server to have access
via a network drive to an NFS exported subdirectory on the switch.
The seller has configured the software to access the switch tables
in the format and location currently in use at the Company. This
format and location must remain the same in order for the system
to run without further modifications. The script updated the DID
table on the switch to enable the use of the first return number
for which the customer required service and immediately updates
the customer's credit table to include the 20 US$ credit limit.
o OBTAIN A CALL DETAIL REPORT
Using a DID number and the customer's password, the software
immediately initiates a Connection to the administrative/corporate
database and generates within minutes a report of all calls recorded
onto the database between the dates specified. The requested report
is shown on the customer's Internet browser.
o VIEW THE MONTHLY INVOICE ONLINE
Every four weeks, the Software automatically e-mails customers
requesting to visit the Company's secure site by hyperlink. Once on
this site, customers are asked to input their account number and
password, and within minutes the customer can retrieve invoices in a
readable format.
o TRIGGER A CALLBACK SERVICE THROUGH THE INTERNET
The switch can initiate a call back session by receiving an e-mail
from an existing customer, which includes in the subject the
customer's DID and the number to call. Within minutes, the third
party switch initiates both calls. For customers without e-mail, a
page permanently resides on the Company's web site which is capable
of sending the requisite e-mail on behalf of the customer after
instantly verifying the customer's password and related DID.
The Software requires the following third party software components
that must be installed and correctly configured so that the software
can efficiently and effectively handle signups within 3 minutes of
submitted. The seller shall provide the Company with information on
the hardware and software upgrades required to maintain this response
time as traffic grows and the Company agrees to provide those
resources.
o Windows NT Server 4.0 with Internet Information Server version 4.
o Perl 5.0 for Win32
o Java 1.1.6
o Jconnect libraries from Sybase
o NFS client mapping the S: drive to the directory where the switch
tables resides with full access permissions.
o PCHub software properly configured according to manufacturer
specifications and merchant account, running all the time. The web
server must have permission to get authorizations on this PCHub.
The parties agree that processing times may vary negatively as a
result of random external factors and that any standards specified
herein can not be guaranteed to be valid at all times but in most
instances.
