EFFECTNET
UNIFIED COMMUNICATIONS
SERVICES
GENERAL AGREEMENT
FOR TELQUEST TECHNOLOGIES INC.
LEGEND: CERTAIN INFORMATION IN THIS PUBLICLY FILED DOCUMENT HAS BEEN DELETED,
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED WITH THE SEC. DELETED
INFORMATION IS MARKED "****". THE COMPLETE DOCUMENT, INCLUDING INFORMATION
DELETED IN THIS PUBLICLY FILED DOCUMENT, HAS BEEN FILED SEPARATELY WITH THE SEC
IN CONNECTION WITH VERB EXCHANGE INC.'S REQUEST FOR CONFIDENTIAL TREATMENT OF
THE INFORMATION.
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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
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.
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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.
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 be the same version of the
EffectNet Services generally made commercially available, unless telQuest
"****", 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.
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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 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-7 day 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.
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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.
2.12 Minimum Commitment. telQuest hereby agrees to deliver a minimum
"****" then current active Subscribers on or before three (3) months after
the Launch Date (Ramp Date); and an additional "****" then current active
Subscribers on or before six (6) months after the Launch Date (Ramp Date);
and and additional "****" then current active Subscribers on or before nine
(9) months after the Launch Date (Ramp Date). telQuest shall maintain
"****" current active Subscribers at the end of each calendar month
thereafter (the "minimum commitment") for the term of the agreement.
Minimum Commitment levels shall relate to the CommuniKate "unlimited"
pricing account equaling one (1) Subscriber. Two (2) "Basic" priced
accounts shall be equal to one (1) Subscriber and three (3) "Special"
accounts shall be equal to one (1) Subscriber in relation to contribution
towards the "minimum commitment".
2.13 Reconciliation Payment. On the Ramp Dates and at the end of each
calendar month thereafter, EffectNet will calculate telQuest actual number
of then current active Subscribers on the last day of such calendar month
and compare it to the Minimum Commitment. If telQuest does not meet or
exceed the Minimum Commitment for the month in question, telQuest will have
a Volume Shortfall, and telQuest shall pay EffectNet a Reconciliation
Payment associated with that Volume Shortfall. Each month is measured
independently; there is no carry back or forward of surpluses or
deficiencies. The Reconciliation Payment is equal to the Volume Shortfall
multiplied by the base monthly price applicable to the UC Service per
Subscriber, based on a total number of Subscribers equal to the Minimum
Commitment level (the Base Monthly Fee).
3. MARKETING AND BRANDING.
3.1 Web Presence. At no additional charge, EffectNet will provide
telQuest with a private label website, URL links and related branding as
reasonably directed by telQuest.
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
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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. telQuest as the buyer of the
wholesale services from EffectNet, is responsible for all expenses and
obligations incurred by telQuest as a result of its efforts to attract and
solicit customers for telQuest UC Services. telQuest expressly acknowledges
that it is not entitled to any reimbursement by EffectNet for such expenses
unless, and only to the extent that, both parties hereto agree in writing
prior to the incursion of such expenses, as set forth in this agreement.
4. CHARGES AND BILLING STATEMENTS.
4.1 Traffic- or usage-sensitive rates shall be computed in "****"
increments "Special" priced accounts, and at "****" increments for all
other accounts.
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.
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
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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 within seven (7)
calendar days 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. telQuest will provide EffectNet with a deposit
upon execution of this agreement in the amount of "****". In the event
that active UC Services are not available to telQuest, by fault of
EffectNet for at least "****" 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 "****". At
each month end, telQuest and EffectNet shall adjust the deposit so
that it equals $"****" for each "****" active Subscribers at that time
(the number of Subscribers being calculated in accordance with section
2.12). telQuest shall deliver any shortfall in the deposit required to
EffectNet within three (3) business days of adjustment. In any event,
the telQuest's deposit shall not exceed "****" dollars.
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 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.
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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.
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7.1 Each party agrees to use the Proprietary Information received from
the 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.
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7.5.5 is independently developed by the receiving party without
reference to or reliance upon the confidential information
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
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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.
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.
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12.1 Monetary Values. All monetary values in the Agreement refer to U.S.
dollars.
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
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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 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.
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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: Signature:
Printed Name: Xxxx Xxxxxxxxxx Printed Name: Xxx Xxxxxxx
Title: Vice President Title: President
Date: November 7, 2000 Date: November 7, 2000
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APPENDIX P (PRICING)
EffectNet shall offer the following products to telQuest at the prices
attached thereto as follows:
1.BASIC
$"****" per month for each basic account with all platform usage and
inbound call time on the EffectNet platform an additional $"****"per
minute. The basic account includes "****" . Outbound calling will be
$"****" per minute. This package includes customer service and
technical support.
2.UNLIMITED
$ "****" per month for each unlimited account with unlimited free
platform usage and inbound call time included. Outbound calling will
be $"****" per minute. The unlimited account includes "****" .
3.SPECIAL
$"****" per month for each special account with "****" . Inbound
calls/platform usage will be $"****" per minute and outbound calling
will be an additional $"****" per minute. Technical support is not
included in special subscription package; however, if desired, there
will be a flat fee of $"****" per incident. The per minute rates on the
special account refer solely to domestic United States (48 contiguous).
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LEGEND: CERTAIN INFORMATION IN THIS PUBLICLY FILED DOCUMENT HAS BEEN DELETED,
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED WITH THE SEC. DELETED
INFORMATION IS MARKED "****". THE COMPLETE DOCUMENT, INCLUDING INFORMATION
DELETED IN THIS PUBLICLY FILED DOCUMENT, HAS BEEN FILED SEPARATELY WITH THE SEC
IN CONNECTION WITH VERB EXCHANGE INC.'S REQUEST FOR CONFIDENTIAL TREATMENT OF
THE INFORMATION.
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 fo 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 it equal $"****" for each additional "****" then active
Subscribers above the Initial Deposit hereinabove mentioned (the number of
Subscribers being calculated in accordance with section 2.12). telQuest
shall deliver any shortfall in the deposit required to EffectNet within
three (3) business days of adjustment. EffecNet shall return or apply a
credit equal to any excess within three (3) business days of adjustment. In
any event, the telQuest's deposit shall not exceed "****" dollars.
telQuest Technologies, Inc.
By: __________________________
Title: __________________________
Date: __________________________
EffectNet, L.L.C.
By: __________________________
Title: __________________________
Date: __________________________
CONFIDENTIAL
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SECOND AMENDMENT TO
UNIFIED COMMUNICATIONS SERVICES GENERAL AGREEMENT
LEGEND: CERTAIN INFORMATION IN THIS PUBLICLY FILED DOCUMENT HAS BEEN DELETED,
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED WITH THE SEC. DELETED
INFORMATION IS MARKED "****". THE COMPLETE DOCUMENT, INCLUDING INFORMATION
DELETED IN THIS PUBLICLY FILED DOCUMENT, HAS BEEN FILED SEPARATELY WITH THE SEC
IN CONNECTION WITH VERB EXCHANGE INC.'S REQUEST FOR CONFIDENTIAL TREATMENT OF
THE INFORMATION. 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:
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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:
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.
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.
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 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.
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
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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
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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.
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.
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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 a Monthly Fee and a
Usage Charge. In addition, Webley shall also invoice Verbx on a calendar
monthly basis for a Usage Surcharge if applicable.
4.3.1 MONTHLY FEE. The Monthly Fee shall be for each calendar month
"****" adjusted on a pro-rata basis for end user accounts that are
activated for less than a full calendar month.
4.3.2 USAGE CHARGE. The Usage Charge shall be for each calendar month
"****" per minute, determined using "****"-second increments, of
inbound and outbound connectivity to the EffectNet UC Service
platform.
4.3.3 CUSTOMER SUPPORT FEE. The Customer Support Fee shall be, for
each calendar month, "****" adjusted on a pro-rata basis for end user
accounts that are activated for less than a full calendar month;
provided, however, that the Customer Support Fee shall increase to
"****" for those end user accounts for which, and for so long as,
Verbx fails to comply with the requirements of Section 2.11; and
provided, finally, that there shall be no Customer Support Fee on and
after the date Verbx assumes responsibility for Tier One and Tier Two
customer support in accordance with Subsection 2.10.2.
4.3.4 USAGE SURCHARGE. The Usage Charge shall be for each calendar
month a positive number equal to (a) the sum of all minutes Page 3 of
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for all end user accounts on which the Usage Charge is based, less
"****" minutes times (b) "****".
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.
Delete APPENDIX P.
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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:___________________ By:__________________
Name: Name:
Title: Title:
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