EXHIBIT 10.21
SERVICES AGREEMENT
This Services Agreement (this "Agreement"), dated as of December ___, 2003,
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is by and between FoneFriend, Inc., a Delaware corporation having offices
located at 0000 Xxxxx Xxxxxx X., Xxxxx X, Xxxxxxxx, Xxxxxxxxxx 00000 (the
"Company"), and Winsonic Holdings Ltd., a California corporation having offices
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located at 0000 Xxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the
"Supplier").
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1. SERVICES.
1.1 Supplier agrees to perform and provide to Company services
consisting of internet, co-location, hardware, software, trunking, integration,
engineering and consulting services (collectively, the "Services"), which
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Services shall include those services required by the Company to establish and
maintain its own global network, including the provisioning of all related
computer equipment and appurtenances, that will enable the Company's customers
to initiate and complete both "FoneFriend-to-FoneFriend" calls and
"FoneFriend-to-Gateway" calls. Additionally, Supplier will work with company to
provide billing and customer relationship management software systems that will
enable the Company to efficiently invoice and manage its customers.
1.2 Supplier agrees to immediately commence performance of the
following specific services:
(i) Supplier will provide and maintain co-location facilities and
internet connectivity with Level3 for FoneFriend servers, a radius server, least
call routing equipment, all related database maintenance and host and maintain
the Company's website; and
(ii) Supplier will clone existing Company servers and make
functional for call completion within the time it takes level 3 to cross connect
voice trunks and gateway trunks; and
(iii) Supplier will prepare a "scope of work" outline for the
functional, scaleable operations of the FoneFriend VoIP telephony system with
integration of peripheral services, customer billing and customer service
software; and
(iv) Supplier will install and integrate new hardware and software
facilitating the expansion of the Company's telephony business with peripheral
services which will efficiently provide service for an initial base of 10,000
customers, as well as additional customers as required by the Company's growth,
in a timely fashion.
1.3 Subject to the terms and conditions of this Agreement, Supplier
shall endeavor with good commercial efforts to provide the Services for
twenty-four (24) hours a day, seven (7) days a week throughout the term of this
Agreement. Company agrees that from time to time the Services may be
inaccessible or inoperable for any reason, including, without limitation: (i)
equipment malfunctions; (ii) periodic maintenance procedures or repairs which
Supplier may undertake from time to time; or (iii) causes beyond the control of
Supplier or which are not reasonably foreseeable by Supplier, including, without
limitation, interruption or failure of telecommunication or digital transmission
links, hostile network attacks, network congestion or other failures. Company
agrees that Supplier has no control of availability of Services on a continuous
or uninterrupted basis.
1.4 Throughout the term of this Agreement, Supplier shall provide the
officers, employees or designees of the Company with verbal and /or written
reports concerning its activities as are reasonably requested by the Company.
2. PAYMENT.
2.1 In consideration of Supplier's agreement to provide the Services,
the Company shall pay supplier a base fee no less that $5,000,00 ("Base Fee")
and shall not be obligated for any amounts due Supplier that are greater than
$10,000.00 per month. Additional costs above the Base Fee must be approved in
advance by both parties.
2.2 Company and Supplier each represent and warrant to the other that
their respective corporations are duly organized, validly existing, and in good
standing under the laws of their respective states of incorporation, and that
each party hereto has all requisite power and full legal right to execute and
deliver this Agreement and to perform all of their respective obligations
hereunder in accordance with the terms hereof.
2.3 Supplier represents and warrants that it is an "accredited
investor" as defined in Rule 501(a) promulgated under the Securities Act of
1933, as amended (the "Securities Act"), was not organized for the specific
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purpose of acquiring the securities offered hereby, and has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of the transactions contemplated under this Agreement.
Supplier's financial condition is such that it is able to bear all economic
risks of investment in the Shares, including a complete loss of its investment
therein. Company has provided Supplier with adequate access to financial and
other information concerning Company as requested and Supplier has had the
opportunity to ask questions of and receive answers from Company concerning the
transactions contemplated by this Agreement and to obtain there from any
additional information necessary to make an informed decision regarding an
investment in Company. Supplier is acquiring the Shares solely for investment
purposes, with no present intention of distributing or reselling any of the
Shares or any interest therein. Supplier is aware that the Shares will not be
registered under the Securities Act, and that neither the Shares nor any
interest therein may be sold, pledged, or otherwise transferred unless the
Shares are registered under the Securities Act or qualify for an exemption under
the Securities Act. Notwithstanding that fact, the Company shall use its best
efforts to include the Shares in any registration statement filed by the Company
which becomes effective within one year from the date hereof.
3. TERM.
3.1 The term of this Agreement shall commence upon execution and
delivery hereof by the parties and continue thereafter for a term of five (5)
years; provided however, the Company shall have the right to terminate this
agreement without cause upon thirty (30) days written notice, in the event that
the Supplier fails to provide services hereunder to the satisfaction of the
Company, in its sole determination.
4. MISCELLANEOUS.
4.1 Independent Contractors. The parties and their respective personnel
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are and shall be independent contractors and neither party by virtue of this
Agreement shall have any right, power or authority to act or create any
obligation, express or implied, on behalf of the other party.
4.2 Assignment. Neither party may assign any of its rights, duties or
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obligations under this Agreement to any person or entity, in whole or in part,
and any attempt to do so shall be deemed void and/or a material breach of this
Agreement.
4.3 Waiver. No waiver of any provision hereof or of any right or remedy
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hereunder shall be effective unless in writing and signed by the party against
whom such waiver is sought to be enforced. No delay in exercising, no course of
dealing with respect to, or no partial exercise of any right or remedy hereunder
shall constitute a waiver of any other right or remedy, or future exercise
thereof.
4.4 Severability. If any provision of this Agreement is determined to
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be invalid under any applicable statute or rule of law, it is to that extent to
be deemed omitted, and the balance of the Agreement shall remain enforceable.
4.5 Notice. All notices shall be in writing and shall be deemed to be
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delivered when received by certified mail, postage prepaid, return receipt
requested, or when sent by facsimile or e-mail confirmed by call back. All
notices shall be directed to the parties at the respective addresses given above
or to such other address as either party may, from time to time, designated by
notice to the other party.
4.6 Amendment. No amendment, change, waiver, or discharge hereof shall
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be valid unless in writing and signed by both parties.
4.7 Law. This Agreement shall be governed in all respects by the laws
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of the State of California without regard to its conflict of laws provisions.
4.8 Force Majeure. If the performance of any part of this Agreement by
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either party is prevented, hindered, delayed or otherwise made impracticable by
reason of any flood, riot, fire, judicial or governmental action, labor
disputes, act of God or any other causes beyond the control of either party,
that party shall be excused from such to the extent that it is prevented,
hindered or delayed by such causes.
4.9 Entire Agreement. This Agreement constitutes the complete and
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exclusive statement of all mutual understandings between the parties with
respect to the subject matter hereof, superseding all prior or contemporaneous
proposals, communications and understandings, oral or written.
4.10 Confidentiality; Intellectual Property. Supplier acknowledges
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that any and all knowledge or information concerning the Company, its affairs
and business activity obtained by Supplier, its principals, employees and/or
contractors in the course of its engagement hereunder is strictly confidential,
and Supplier solemnly promises not to reveal same to any other persons and/or
entities, including, but not limited to, competitors of the Company and that it
will not impart any such knowledge to anyone whosoever during the term hereof or
anytime thereafter. Further, Supplier agrees not to partake, either itself or
in conjunction with other third parties, in any activities or dealings that
would circumvent the business or best interests of the Company. Any technology
enhancements, improvements or revisions paid for by the Company shall become and
remain the intellectual property of the Company and shall not be disclosed to or
utilized by third parties without the Company's prior written consent and
approval allowing such usage. Further, all information, including but not
limited to business operations, software and other intellectual property rights,
pertaining to the Company which is forwarded to, or otherwise obtained by
Supplier hereunder, is to be received in strict confidence and used only for the
purposes of this Agreement and not in circumvention of any economic opportunity
or business relationship of the Company. The provisions of this Section 4.10
shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties, by their duly authorized representatives,
have executed this Agreement.
FONEFRIEND. WINSONIC HOLDINGS, LTD.
By: /S/ Xxxxxxxx Xxxxxx By: /S/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxx
Title: President Title: Chairman
