EXHIBIT 10.13
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
This Marketing Agreement (Agreement) is entered into this 19th day of July,
1999, between XXXxxxx.xxx, Inc., a Nevada Corporation, known as (AIPVC@) and
MetroPlus Communication Technology, Inc., of 0000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX X0X 0X0, the TruePartner Master Distributor, known as (TPMD).
1. Exclusive Territory
IPVC grants to TPMD the exclusive right to market, advertise and sell IPVC
network and equipment (TrueConnect Gateways) or TrueWeb access (Services)
as defined in Appendix A and A-2 for wholesale TrueConnect Gateway pricing.
TPMD shall also have the exclusive right to market, advertise and sell
Services to be offered through IPVC in the future, the compensation for
such activities to be set by agreement of the parties when such services
are made available. It is acknowledged that although TPMD is granted a
right to market Services within the Territory as Master Distributor of
IPVC, TPMD may also market the Service in the Territory using other agents.
The identical terms and conditions of this agreement will apply to agents
or partners of TPMD.
2. Equipment Testing Period (Beta) Terms and Conditions
Gateways
GatewaysGatewaysA period of thirty (30) days from time of installation is
set aside for the customer to test TrueConnect Gateway features and
functions that were sold at the time of Beta installation. During this
period of time customer and TPMD agree to work and consult with IPVC staff
on any questions, concerns or issues that might arise to ensure that the
TrueConnect Gateways meet or exceed Customer's reasonable performance
requirements. Should the TrueConnect Gateways not meet TPMD=s requirements
and should IPVC be unable to correct the problem, the customer shall be
allowed to return the Gateway (at the expense of TPMD) to IPVC and IPVC
will refund customer=s Posted Letter of Credit less a 10% restocking fee.
Furthermore should the TrueConnect Gateway fail to be reasonably acceptable
under the Beta test requirements (setforth in that document) the customer
agreement shall be null and void.
Should TrueConnect Gateways perform and pass Beta Test requirements, IPVC
shall have the right to draw against the entire Letter of Credit and apply
it as payment in full for the tested Gateway(s) on the Customer's site.
Customer further agrees that all TrueConnect Gateways must be paid for in
full prior to shipping and installation.
Voice Quality
IPVC does not guarantee voice quality to the customer because it is not a
function of the Gateway itself but the capabilities of the chosen Internet
Provider in that area. Should customer not have access to IPVC recommended
Site and Internet requirements, IPVC agrees to work with customer on
alternative routes, providers and carriers.
Page 1
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
A. TPMD's Obligations
TPMD shall work diligently with IPVC staff during the installation and
testing period to ensure that the Services are sold within the Territory as
described. TPMD has the authority to hire Technicians or employees to
comply with its obligations. TPMD shall have approved technical,
installation and user manuals and Beta Testing reports and is responsible
for having materials translated into the major languages spoken within the
Territory. TPMD's agents or partners will comply with the terms and
limitations of this Agreement. IPVC shall have the right to require TPMD=s
agents and partners to sign an Addendum to this Agreement to that effect.
TPMD shall diligently promote the Services within the Territory. TPMD has
the authority to hire agents or employees on its own behalf and not on
behalf of IPVC to comply with TPMD=s obligations under this Agreement. TPMD
shall have approved promotional materials translated into the major
languages spoken within the Territory. TPMD's agents or partners will
comply with the terms and limitations of this Agreement.
B. IPVC's Obligations
An IPVC technical representative will travel to customer's location to
install a Gateway and to train customer's staff on the use of TrueConnect.
IPVC will supply TPMD and customer with what reporting will be required
during the testing period. IPVC will pay the cost of travel and lodging for
the IPVC technical personnel for a maximum of two (2) travel days and a
five- (5) business day stay. Should the customer desire that the IPVC
technical person stay longer, the additional expenses will be billed to the
customer unless otherwise approved by IPVC in advance.
3. Compensation
In consideration for marketing, advertising and selling the Services as set
forth above, TPMD shall be entitled to purchase Services at a wholesale
rate as set forth in Appendix B.
4. Billing and Collecting
A. Collecting will be prepaid based on estimated usage. Licensing fees will
be with terms of Net 30 days. IPVC must accept TPMD's prior credit approval
before credit approval is extended to the customer. TPMD agrees that all
items will be made payable to a Lock box, (Appendix C) or shall be required
to post a Letter or of Credit with IPVC on behalf of the customer, or the
customer shall post a Letter of Credit directly with IPVC for the full
purchase price including shipping and handling of the TrueConnect Gateway
prior to shipping and installation.
B. IPVC will, at the end of a thirty-day period, provide TPMD with a
detailed invoice. IPVC will also forward to TPMD a complete listing of all
revenues credited to TPMD with the associated calculation of TPMD's
commission and/or revenues owed TPMD. Every effort will be made as it
pertains to processing daily ban lock box activity for the purpose of
crediting the TPMD. Funds held by IPVC at the end of the month, the Bank=s
regular statement covering the deposits to and withdrawals from the TPMD=s
accounts is to be mailed to the TPMD.
5. Letter of Credit
TPMD agrees to provide an Irrevocable Letter of Credit (LOC) from a
mutually acceptable financial institution for the full amount of each
TrueConnect Gateway order prior to shipment of any TrueConnect Gateway.
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TruePartner Master Distributor Agreement
Lock Box described in (Appendix C) will be used on TPMD=s customer usage in
all products. Should TPMD or the TPMD=s customer default in any way the
IPVC would still have the options to require the TPMD to post a Letter of
Credit in that amount of one and one-half times the estimated monthly
billing for those customers that IPVC will not extend credit to. The LOC
shall be adjusted periodically using IPVC procedures to account for
variations in the value of xxxxxxxx. In no case shall the LOC be less than
one and one-half times the estimated monthly billing. The LOC shall state
that if payment is not received by IPVC within 30 calendar days after
billing. IPVC shall have the ability to draw against the LOC for the
outstanding amount due IPVC.
6. Third Party Infringements
TPMD shall have the sole right, in its discretion, to initiate, prosecute
or settle legal actions against any person infringing on any intellectual
property rights to the Services within the Territory (except any settlement
which would have the effect of denying to IPVC the benefits of this
Agreement). Each party shall promptly notify the other of any actual or
potential infringement, which becomes known to it. Should TPMD fail to take
appropriate and diligent action with respect to any such infringement by a
third person, in the sole and absolute discretion of IPVC, IPVC shall have
the right to take such action, at its own expense and in its own name, and
including the right to enforce and collect any judgment thereon. Each party
shall cooperate (including appearance for testimony at trials and
depositions) with the other party as such party may reasonably request with
regard to any legal action brought by a party pursuant to this Section. The
party requesting such cooperation shall pay all out-of-pocket costs of the
party providing such cooperation.
7. Confidentiality
Neither party shall disclose any trade secrets (if it has been designated
as such in writing at the time of its original disclosure by one party to
the other) to persons other than those bound by the terms of this Agreement
or persons who have executed Confidentiality Agreements which require such
persons to maintain the confidentiality of such trade secrets to
substantially the same extent as required by this Section. Nothing in the
foregoing sentence shall prohibit disclosure of any information, which is
publicly known at or after the time of disclosure, which is already known
to the recipient, or which is required to be disclosed by law.
8. Agreement Not to Compete
A. TPMD agrees that during the period commencing on the date of this
Agreement and continuing until the date two (2) years after this Agreement
is terminated, it will not directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, stockholder, corporate
officer, director, investor, or financier or in any other individual or
representative capacity, or otherwise, engage or participate in any
business which directly or indirectly competes with the business of IPVC or
any TPMD supplying services to IPVC within any country being serviced by
IPVC or any TPMD supplying the service to IPVC at the time this Agreement
is terminated. TPMD covenants that during the term referenced above, it
will not, either for itself or for any other person or entity, except as
may be required by the terms of this Agreement either directly or
indirectly: (1) call on, solicit, take away or hire any customers,
employees, principals, lessors, distributors or suppliers or other
personnel or independent contractors, of IPVC or any TPMD supplying the
Services to IPVC, (2) acquire or attempt to acquire rights for providing
any product or services in competition with IPVC or any TPMD supplying the
Services to IPVC, or (3) engage in any act which would interfere with or
harm any business relationship with any customer, lessor, employee,
principal or supplier of IPVC or any TPMD supplying the Services to IPVC.
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TruePartner Master Distributor Agreement
B. IPVC and TPMD agree that a breach of the covenants described in this
Section will result in substantial damages to IPVC, which would be
difficult, if not impossible to ascertain. TPMD agrees that in the event of
such a breach or threatened breach, IPVC shall have the right to a
Restraining Order and an Injunction, without bond or other security (all of
which is waived) both temporary and permanent, enjoining and restraining
any such breach or threatened breach. Such injunctive relief shall be in
addition to any other remedy available to IPVC at law or in equity. Nothing
in this Agreement shall be construed to prohibit or prevent IPVC from
initiating an action or otherwise recovering any damages that may be
sustained as a result of the breach or threatened breach by TPMD. TPMD also
agrees that IPVC may pursue any remedy available to it, and the pursuit of
any one such remedy at any time will not be deemed an election of remedies
or waiver of right to pursue any other remedy.
C. Should TPMD breach or violate any term of this Agreement at any time
when monies are due and owing to it from IPVC, then all unpaid monies due
TPMD shall be subject to offset by the amount of any damages incurred by
IPVC, the amount of any attorney fees and other related expenses incurred
by IPVC in enforcing this Agreement, and by the amount of any other claims
IPVC may have against TPMD.
9. No Relationship
The parties to this Agreement are independent contractors only and nothing
in this Agreement shall be construed as establishing any agency, joint
venture, partnership, fiduciary or other relationship between the parties.
10. Warranty
Each party represents and warrants to the other that it has the power and
authority to execute and deliver, and to perform its obligations under this
Agreement, and that neither the execution or delivery of this Agreement nor
the performance of its obligations hereunder will constitute a breach of
the terms or provisions of any contract or violate any law or the rights of
any third party.
11. Term and Termination
The term of this Agreement will commence as of the date first above written
and shall continue until the third anniversary of the date of its
execution. If either TPMD or IPVC commits a material breach of any material
provision of this Agreement, and such breach is not cured within ninety
(90) days after the date which notice of breach is provided to the
breaching party in writing, the non-breaching party shall have the right to
terminate this Agreement upon further thirty (30) day written notice.
12. Governing Law
This Agreement shall be governed and construed in accordance with the laws
of Florida, USA (excluding any conflicts with laws or rules) and each party
submits to the jurisdiction of any state, county or federal court in the
state of Florida, USA.
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
13. Entire Agreement
This Agreement sets forth the entire Agreement or any understanding between
the parties as to its subject matter and supersedes all other documents,
verbal commitments or understandings made before conclusion of this
Agreement, and none of the terms of this Agreement may be amended or
modified except in writing signed by both parties.
14. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party except that any party may assign this
Agreement to any successor corporation (including the surviving corporation
in any consolidation or merger) or assignee of all or substantially all of
its business. In the event of such an assignment, the assigning party shall
remain jointly and severally liable with the assignee for the full and
timely performance by such assignee of the assigning party's obligations
hereunder.
15. Notices
Any notice, consent or approval required or permitted under this Agreement
shall be in writing and shall be delivered to the following addresses (i)
personally by hand (ii) by certified mail, postage prepaid with return
receipt requested, or (iii) by fax confirmed by such certified mail:
If to TPMD:
MetroPlus CommunicationTechnology, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
E-mail address xxxxx@xxxxxxxxxxx.xxx
Phone number: 000 000 0000
Fax number: 604.687 0151
If to: IPVoice Communications, Inc.
0000 Xxxxx Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
E-mail Address: xxxx@xxxxxxx.xxx
Phone Number: 303.738 1266
Fax Number: 303.738 1295
All notices shall be deemed effective upon the date delivered by hand or
sent by fax, or if mailed, as of the date which is five (5) days after the
date of mailing. Either party may change its address for notice purposes by
notifying the other party of such changes of address in accordance with the
foregoing.
16. Waivers
No waiver of any term or condition of this Agreement shall be valid except
when made by an instrument in writing expressly waiving such term or
condition signed by the waiving party. A waiver by any party of any term or
condition of this Agreement in one instance shall not be deemed a waiver of
such term or condition for any similar instance in the future or of any
subsequent breach. All rights, remedies obligations and agreements
contained in this Agreement shall be cumulative and not in limitation of
any other remedy, right, obligation or agreement of any other party.
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
17. Severability
If any part of this Agreement is contrary to, prohibited by or deemed
invalid under the laws of any jurisdiction, such provision shall, as to
such jurisdiction be inapplicable and deemed omitted to the extent so
contrary, prohibited or invalid, without invalidation or affecting the
validity or enforceability of such provision in any other jurisdiction.
18. Specific Performance
The parties acknowledge that there may be no adequate remedy at law for any
violation of sections of this Agreement, and that in addition to any other
remedies which might be available, such Sections shall be specifically
enforceable in accordance with their terms.
19. Headings
Headings contained in this Agreement are for convenience of reference only
and shall not affect the meaning or construction under the provision of
this Agreement.
20. Voluntary Agreement
Each party warrants that before signing this Agreement such party has been
fully advised of its contents and meaning, has had legal counsel explain
the meaning and legal significance of each and every provision therein, and
executes this Agreement freely and voluntarily with full knowledge and
understanding of its contents.
21. Cumulative Remedies
No remedies or election hereunder shall be deemed exclusive, but shall,
whenever possible, be cumulative with all other remedies at law or in
equity.
22. Attorney Fees
In the event any action, proceeding or litigation, judicial or
non-judicial, arises out of the subject matter of this Agreement the
prevailing party shall be entitled to payment of all costs, expenses and
attorney fees incurred.
23. Successor/Assigns
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, personal
representative and assigns. The parties each agree to take such further
action and deliver such ancillary document as may be reasonable or
necessary in order to carry out the terms and provision of this Agreement.
24. Authority
Each individual executing this Agreement in a representative capacity
warrants to the other party that such person has sufficient authority to
bind the party on behalf of whom they are executing this document.
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25. Duplicate Originals
Any fully executed copy of this Agreement shall be deemed for all purposes
as a duplicate original. All originals and duplicate must be signed before
a notary or will be considered invalid.
26. Intellectual Property and or Proprietary Rights
The Software. TPMD acknowledges that the Software is protected by trade
xxxx and trade secret interests of IPVC and that TPMD has no rights to
transfer or reproduce the TrueConnect Software, MultiCom Software or
TrueConnect Gateway or prepare any derivative works with respect to or
disclose confidential information pertaining to, the software or any part
thereof. Under no circumstances shall TPMD be deemed to receive title to
any portion of the Software, title to which at all times shall vest
exclusively to IPVC. IPVC represents to TPMD that it owns and has the right
and authority to grant TPMD the license granted herein to the Software
without infringing the propriety rights of other. IPVC hereby agrees to
indemnify TPMD against any claim of infringement relating to TrueConnect
and MultiCom, provided that TPMD gives IPVC prompt notice of any such claim
and agrees to immediately terminate any use alleged to be the basis of
infringement.
EXECUTED by the parties effective as of the date first written above.
XXXxxxx.xxx, Inc.
By: /s/ Xxxxxxx X. Will
Name: Xxxxxxx X. Will
Title: President and COO
State of )
County of ) ss.
Country of )
Subscribed and sworn to under oath before me on this _____day of
_____________, _______.
--------------------------
Notary Public
My Commission Expires:
Metroplus Communication Technology, Inc.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Marketing Director
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
State of )
County of British Columbia ) ss.
Country of Canada )
Subscribed and sworn to under oath before me on this _____day of
_____________, _______.
----------------------------
Notary Public
My Commission Expires:
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix A
Non-Exclusivity of Territory
Or
Exclusivity of Territory
IPVoice .com, Inc. and TPMD have agreed that IPVC gives non-exclusivity of
territory to TPMD.
INIT _______INIT _______
XX IPVoice .com, Inc. and TPMD have agreed that IPVC grants exclusivity to TPMD
in the following Territory. TPMD shall purchase the exclusive to market IPVC
services in the chosen country. All originating traffic, regardless of who is
responsible for the sale, will roll to TPMD revenue stream with exclusivity for
the territory. The fee set forth will entitle TPMD to:
_ Exclusivity.
_ A Dedicated Sales and Service Contact.
_ On-site training for sales and service.
_ Training Manuals changes and updates, as they become available.
_ Updates on IPVC competitive advantage.
_ Market Overview and updates.
_ Detailed information on IPVC products and services.
_ Wholesale Pricing or Commission payments
_ Monthly Fees for use of IPVoice Software.
_ Billing and Collection guidelines.
_ Newsletter and future product development charts.
_ Technical Assistance.
_ Future product development changes.
_ Regular Agent and TruePartners meetings.
The purchase of the exclusive territory will vary by country and market and has
been determined as follows:
1.) Exclusive Territory is granted to TPMD and is as follows:
Territory Signing Fee
----------- --------------
a) Canada $ 100,000.00
- Vancouver, Calgary, Edmonton, Winnipeg, Toronto,
Montreal, Halifax
b) Washington State $ 50,000
- Seattle, Tacoma, Spokane, Tri Cities, Vancouver
a) Oregon $ 50,000
- Albany, Beaverton, Eugene, Portland
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TruePartner Master Distributor Agreement
This is for the right to market and advertise the services and to establish
an office. As used in this Agreement, AService@ shall mean domestic,
intra-country and international calling services offered through the date
of this Agreement, specifically origination and termination in designated
calling patterns, international and calling card. Agent shall also have the
exclusive right to market, advertise, and sell the services to be offered
through IPVC in the future, the compensation for such activities to be set
by agreement of the parties as set forth in Appendix B.
It is acknowledged that although TPMD is given (a) the right to market a
geographic territory, and (b) Product and Services; as an Agent on behalf
of IPVC, IPVC also grants authority to TPMD to market said Territory by
using TPMD's own agents or direct sales staff.
TPMD agrees and understands that the IPVC product offering "Flat25" must be
sold and supported in its exclusive cites and that our Target cites must be
installed first to support that product offering. "Flat25" will be an IPVC
offering and IPVC will split signing fees as well as revenues with the TPMD
in consideration for its contribution on all Flat25 customers sold by TPMD.
For customers sold by IPVC marketing partners IPVC will pay TPMD a
percentage per month to be agreed to.
Signing fees will be waved if signed before July 31, 1999.
TPMD Obligations under Exclusive Territory
TPMD shall diligently promote the Service within the Territory. TPMD has
the authority to hire agents or employees to comply with the obligations of
this Agreement at the sole expense of TPMD. TPMD shall have IPVC
pre-approved promotional materials, which must be translated into the major
languages spoken within the Territory at the sole cost of TPMD. TPMD's
agents or partners will comply with the terms and limitations of this
agreement and will sign documentation to that effect. TPMD is responsible
for setting up an office, where customer calls can be answered, AIPVoice
Communications (country name), and that sales and service can be handled
in a professional manner.
TPMD understands and agrees that IPVC has the right, in its sole and
absolute discretion, should the following quota not be met to terminate
and/or change TPMD Country Exclusivity.
Quota: A minimum of $250,000.00 per month, per City must meet or exceeds in
Exclusive Territory after a Six month ramp from installation. Should
revenues not be met then signing fees that were original waved will be due
and payable to IPVC. Total fees do $200,000.00
Quota: A minimum of 20 Gateway must be deployed and installed to support
customer's Exclusive Territory. This installation need to be done within
One year
TPMD understands and agrees that Purchase price is due and payable at conclusion
of the Beta Test period.
INIT _______INIT _______
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix B
TPMD Wholesale Pricing
This Appendix B, dated July 19, 1999 by and between XXXxxxx.xxx, Inc. ("IPVC"),
a Nevada Corporation, and Metroplus Communication Technology, Inc., TruePartner
Master Distributor (TPMD), is attached to and made a part of the Agreement
between IPVC and TPMD dated July 19, 1999 (the Agreement").
As set forth in this Schedule hereto, payment for Services shall be determined
by the destination and duration of the calls, and at the per minute rates listed
in the following Schedules. IPVC in its sole discretion and upon five (5) days
advance written notice, may change such rates as it deems necessary; unless such
changes are required by law, order, rule or regulation, whereupon IPVC will
promptly notify TPMD of such changes and notice shall not act as a condition
precedent thereto. TPMD agrees to prepay for all services and understands that
no equipment will be shipped prior to payment. An estimated monthly amount will
be posted each month for usage and finally determined at the end of each billing
cycle.
Equipment Descriptions listed in Appendices D and E
A. TrueConnect Gateway Wholesale Pricing for Domestic and International
Product Sold Pricing under this Agreement Price for One (1)
------------- --------------------------------------------------
TrueConnect Gateway
Domestic (T/1) $49,894.82 $59,894.82
International (E/1) $53,718.22 $63,718.22
Added Gateways (Pricing does not include install or travel)
Domestic $39,894.82 $44,894.82
International $43,718.22 $48,718.22
T-1 Cards $ 6,300.00 $ 6,500.00
E-1 Cards $ 6,500.00 $ 6,700.00
B. TrueConnect Gateway=s using MultiCom software but no network applications
or resale of minutes:
Per Customer Location: (Pricing not available under this agreement.)
Should market conditions change IPVC reserves the right to modify the pricing
structure.
"Net Revenues" shall mean gross revenues actually received by IPVC or TPMD for
sales of the services defined in this Agreement, less IPVC's cost of, including
but not limited to, taxes, duties, discounts, license fees, equipment, network,
labor, refunds and administrative costs. Both IPVC and TPMD shall determine
rates and commissions for any IPVC network used by TPMD customer switching in
TPMD's Territory.
In order to stay competitive and in order to maximize return, IPVC shall require
that in the event of an 800-toll free access number being used, that the number
be changed periodically. TPMD specifically agrees to contact customers to make
the required number changes within receipt of two weeks notice by IPVC.
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Appendix B (Continued)
IPVC will give a minimum of two weeks notice after which toll free number change
is required. IPVC may invalidate this Agreement if TPMD fails to make the
required changes without agreed written notice from IPVC for delays.
XXXxxxx.xxx, Inc.
By: /s/ Xxxxxxx X. Will
-------------------------
Xxxxxxx X. Will, President and C.O.O.
Metroplus Communication Technology, Inc.
By: /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx, Marketing Director
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Contact Form
This contact form must be filled out, dated and submitted to IPVoice by mail,
fax or e-mail for every potential customer, distributor, sub-agent or client
that the TPMD proposes to list in its base of working accounts. TPMD understands
and agrees that should submitted contact not sign an agreement after one-year
from the time it was submitted to IPVoice, IPVoice shall have the right to
contact and sell directly. (Unless otherwise agreed to in writing)
DATE SUBMITTED_______________________________________
SUBMITTED BY: ______________________ RECEIVED BY: ______________________
CUSTOMER'S NAME: _______________________________________________________
CONTACTS NAME: _________________________________________________________
DAYTIME OR OFFICE PHONE NUMBER: ________________________________________
AFTER HOURS NUMBER: ____________________________________________________
FAX NUMBER: _________________________E-MAIL ADDRESS: ___________________
ADDRESS:________________________________________________________________
________________________________________________________________________
CITY: _______________STATE/COUNTRY: ____________________ZIP_____________
COMMENTS: ______________________________________________________________
________________________________________________________________________
PROGRAMS/SERVICES OR PRODCTS ARE UNDER NEGOTIATIONS:
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
APPENDIX C
Lock Box Agreement
This Agreement dated July 19, 1999 is Between XXXxxxx.xxx, Inc/Independent
network Srvices and its affiliated entities ("IPVC/INS") with business offices
at 0000 Xxxxx Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and MetroPlus
Communication Technology, Inc. ("Customer") with offices at 0000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX X0X-0X0, and sets out the processing requirements to be
performed by the Bank for IPVC/INS and the Customer. The parties hereto agree
as follows:
1. Customer and IPVC/INS entered into a Business Service Agreement dated July
19, 1999 ("IPVC/INS Agreement") under which IPVC/INS provides Customer with
certain telecommunications services.
2. The Bank maintains a lock box into which checks for the customer are to be
processed. The Customer shall advise all its customers to send checks,
drafts, or other orders for the payment of money (Aitems@) to the lock box
addressed by the Bank.
3. The Bank shall endorse all items contained in such mail in the following
manner:
"Credit to the Account of the Within Named Payee Telecommunications
Corporation"
Should any items be returned to Purchaser by the drawee bank with a request
for a personal endorsement, Purchaser authorizes Bank to endorse the item:
"Pay to the Order of (Customer Name as indicated above)"
The Bank shall exercise due care and caution in handling these items, but
shall not be liable due to the special endorsement and handling.
4. It is understood by Customer that all items will be made payable to it;
however, all items shall be sole and exclusive property of Customer and
will immediately processed, endorsed and the funds credited to Customer's
account at the Bank (the "Account") pursuant to the instructions which
shall be in accordance with the applicable provisions of this Agreement.
Items which are made payable other than as stated, with the exception that
some items may be payable to an abbreviation of the foregoing name, will be
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
returned to Customer, unprocessed. The credit and collection of items shall
be further subject to the same terms and conditions as would apply to
deposits received by the Bank directly from the Customer.
5. The Bank shall maintain a microfilm record of all items deposited in
processing sequence in order to reconstruct any specific deposit by means
of duplicate photstats should the need arise and request be made by any
party. Customer or IPVC/INS may receive photocopies of the microfilmed
items at the Bank's customary rates by providing the deposit date and the
deposit total.
6. Due care shall be taken by the Bank to guard processing of items where
there exists an obvious dispute between Customer and end user. Such
situations are anticipated to be rare and would be directed generally by
notations on an item indicating "Payment in Full" or other such qualifying
statements. Should such statements be typed or handwritten, the bank will
exercise reasonable care to ensure the item will not be processed and will
be returned to Customer.
7. IPVC/INS or its affiliated entities shall act on behalf of Customer as its
pertains to processing daily bank lock box activity for the purpose of
crediting its end user accounts.
8. The Bank will exercise reasonable care to ensure items which are postdated
in excess of two (2) days shall be returned to Customer, unprocessed. All
other postdated items shall be handled in the regular manner by the Bank.
9. The Bank will exercise reasonable care to ensure items which do not bear
the drawer=s signature will not be deposited and shall be returned to
Customer, unprocessed.
10. Items with discrepancies between written and numerical amounts will be
guaranteed for the written amount whenever possible. Items which appear to
the Bank to have been materially altered will not be deposited.
11. Items denominated in foreign currencies and drawn on foreign banks may be
immediately credited at face value with foreign exchange settlement on the
next business day.
12. At the end of each month, the Bank's regular statement covering the
deposits to and withdrawals from the Customer's account is to be mailed to
the Customer at the address provided herein.
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
13. The Bank shall mail IPVC/INS or an affiliated entity on behalf of Customer
a copy o the deposit slip for deposits that were made into the account each
business day. The Bank shall mail IPVC/INS for an affiliated entity any
envelopes, remittance papers and other detail which might be included in
the remittance envelope.
14. All returned items shall be handled in the following manner:
a) Any dishonored items for an amount less than $1,000.00 which is returned
because of insufficient funds will be automatically redeposited a second
time.
b) Any dishonored item which has been returned for the second time or any
item which has been returned for reasons other than insufficent funds, such
as but not limited to, account closed or payment stopped, shall be charged
back to the Account
c) Any dishonored items for an amount equal to or greater than $1,000.00
shall be charged back to the Account.
d) The Bank shall give Customer reasonable notice of any returned items to
be charged back to the Account.
e) Customer shall at all times maintain a minimum balance in the Account of
$1,000.00 to cover any chargebacks. Although Customer is ultimately
responsible for the paymant of any chargebacks, the Bank reserves the right
to charge the Account if there is insufficient funds in the Account to
cover the chargebscks.
15. IPVC/INS's interest in the items arises out of its performance of services
for the Customer's end users and IPVC/INS's security interest in account
receivable from such customers. The Bank recognizes IPVC/INS's continuing
security interest in all items deposited in the Account, and the proceeds
thereof, Customer agrees to indemnify and hold the Bank harmless against
loss to the Bank as the result of the dishonor of any item and chargeback
of items to the Account in accordance with Section 14. Further, Customer
agrees to pay within thirty (30) days of receipt thereof, any documented
invoice from the Bank under this indemnity.
16. Any contact with Purchaser and.or IPVC/INS or its affiliated entities
regarding operational matters should be directed to Xxxxx X. Xxxxxxxx at
000-000-0000, ext. 306; oor 1-800-388- 4542, ext. 306.
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
17. All Bank maintenance charges and fees relating to the arrangements under
this Agreement shall be charged directly to Customer on a monthly basis.
Bank maintenance charges and fees will be charged directly to Customer=s
operating account managed by the Bank.
18. The Bank shall have the right to credit or debit the Account to correct
processing mistakes which are capable of correction. Copies of credit cards
or debit items shall be sent to IPVC/INS or its affiliated entities on
behalf of Customer. Any discrepancies in the Account statement or involving
items identified on said statement must be reported to the Bank within
sixty (60) days from the date of mailing, delivery or availability of the
first item and statement.
19. Deposits/Withdrawals
All funds collected on behalf of the Customer shall be automatically
deposited to the Customer's account as follows:
Bank
Account No.
ABA Routing
20. Notices. Any Notice, instrument or other communication required or
permitted to be given by one of the parties hereto to any other party under
this Agreement is considered as properly given if (I) delivered in person,
(ii) sent by facsimile transmission with the original then mailed by
first-class mail, or (iii) mailed by first class, registered or certified,
with return receipt requested and postage prepaid, to the following
addresses, which may be changed by giving the other parties thirty (30)
days advance written notice:
If to IPVC/INS: XXXxxxx.xxx, Inc.
0000 Xxxxx Xxxxxxxxxxx Xxxx, #000
Xxxxxxxxx, XX 00000
If to Customer: MetroPlus Communication Technology, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X-0X0 Xxxxxx
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
21. This Agreement cannot be modified, altered or amended except by written
agreement specifically referring to this Agreement and signed by all
parties hereto:
22. Either party may terminate this Agreement by written notice delivered by
Customer and IPVC/INS thirty (30) days prior to the effective date of such
termination. Notices shall be personally delivered or sent by overnight
courier to the persons specified in Section 24. No such termination shall
impair the rights or obligations of any party with respect to items
received or processed prior to the effective date of the termination.
23. Relationship of parties. This Agreement does not constitute any of the
parties as agent or principal of any other party.
24. Entire Agreement. This Agreement (and any documents referenced specifically
herein) evidence the entire agreement between the parties in connection
with the operation of the lock box and the Collected Funds, and no other
agreements may be considered or adopted or binding, in whole or in part, by
or upon any of the parties and no additional obligations of the Escrow
Agent may be inferred from the terms of This Agreement or any other
Agreement. This Agreement may only be amended in writing signed by all of
the parties.
25. Captions. Paragraph headings and captions have been inserted for
convenience only and do not in any way limit the provisions set out in
these various paragraphs hereof.
26. Choice of Law. This Agreement shall be construed under the laws of the
state of Arizona without regard to choice of law principles.
27. Assignment. This Agreement may not be assigned or transferred without the
prior written consent of the other parties. This Agreement inures to the
benefit of each of the parties, their successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives to be effective as of the date and year
first written above.
CUSTOMER: XXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxx By: /s/Xxxxxxx X. Will
---------------------- ------------------------------
Printed Name: Xxxx Xxxxxx Printed Name: Xxxxxxx X. Will
Title: Marketing Director Title: President & CEO
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix D
TrueConnect Gateway
T-1 Applications Sale and Price Sheet
T-1 Applications Sale and Price Sheet
Description
USA Domestic and some International Locations
USA Domestic and some International LocationsEach TrueConnect Gateway
is set up with (2) T-1 Cards and has the capacity to hold (4) T-1
Cards. Each card should be able to handle 250,000 minutes per month.
Each TrueConnect Gateway is set up with (2) T-1 Cards and has the
capacity to hold (4) T-1 Cards. Each card should be able to handle
250,000 minutes per month.IPVoice does not recommend that you operate
your Gateways with (4) Cards to insure optimum performance. IPVoice
does not recommend that you operate your Gateways with (4) Cards to
insure optimum xxxxxxxxxxx.Xx minutes grow, Gateway can be added to
support growth.
Sales Price:
First TrueConnect Gateway
TrueConnect Gateway Adds
TrueConnect Gateway Adds
T-1 Cards
Licensing Fees for MultiCom
Set up Fee of $50,000.00
Monthly Fee of $5000.00 or $0.0025 per call record
(which is ever greater
Equipment
One each of the following:
Computer with Keyboard, Sound Card, Monitor, Network Card, Windows,
NT Server, Network Hub, Surge Protection, Cable, Modem, Manual
Hardware
One each of the following:
XXXX0X, XX0000, Fusion 2.0 for NT, G.723.1, H.323 Stack
Other Hardware and Qty
2 AG-T1+RT2 Cards
48 G.723.1 runtime
48 H.323 runtime
Software
MultiCom Software
TrueConnect Switch Software
PCAnywhere Software
Shipping and handling
Cost will vary.
Page 13 Confidential
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix E
TrueConnect Gateway
E-1 Applications Sale and Price Sheet
Description
For use in most International Locations
Each TrueConnect Gateway is set up with (2) E-1 Cards and has
capacity to hold (4) E-1 Cards.Each card should be able to handle
250,000 minutes per month.
IPVoice does not recommend that you operate your Gateways with (4)
Cards to insure optimum performance.
As minutes grow Gateway, can be added to support growth.
Sales Price:
First TrueConnect Gateway
TrueConnect Gateway Adds
E-1 Cards
Licensing Fees for MultiCom
Set up Fee of $50,000
Monthly Fee of $5000.00 or $0.0025 per call record
(which is ever greater
Equipment
One each of the following:
Computer with Keyboard, Sound Card, Monitor, Network Card, Windows, NT
Server, Network Hub, Surge Protection, Cable, Modem, Manual
Hardware One each of the following:
XXXX0X, XX0000, Fusion 2.0 for NT, G.723.1, H.323 Stack
Other Hardware and Qty
2 AG-E1+RT2 Cards
60 G.723.1 runtime
60 H.323 runtime
Software
MultiCom Software
TrueConnect Switch Software
PCAnywhere Software
Shipping and handling
Cost will vary.
Page 14 Confidential
February 9, 1999
XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix F
TrueConnect System/Site Requirements
Last Revised: 10/23/98
This document outlines the system and site requirements needed to install
and operate a TrueConnect Internet Telephony Gateway.
Primary Gateway Hardware (Provided by IPVoice):
Chassis: 19" Rack Mountable
CPU: Intel 266Mhz CPU with 64 MB Ram
Disks: 3-5GB Hard Disk with CD-ROM
PSTN: IPVoice T1/E1/ Analog Interface Card
VoIP: IPVoice PSTN/VoIP Translator Card
Software Configuration (Provided by IPVoice):
Windows NT 4.0 Server
TrueConnect Call Control v1.0
MultiCom Billing v3.3 Access Included
Optional Components:
Additional IPVoice T1/E1/PSTN Interface cards
Site Requirements (Provided by TruePartner):
T1/E1 to the local PSTN for local termination/origination (bi-directional)
Dedicated connection to the Internet Backbone (High Bandwidth)
10/100Base-T Ethernet connection Cable
Dedicated IP Address for the TrueConnect Gateway
Dedicated Phone Line at Install Site (for emergency access to gateway)
8-Port 10-Base-T Hub (If required by ISP)
Uninterruptable Power Supply (UPS)
Page 15 Confidential
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix G
Pre Installation Testing Procedures
_1. Customer must acquire a facility providing both Internet connectivity and
PSTN connectivity
_2. Customer must obtain a unique IP Address for the TrueConnect Gateway
_3. Customer must provide the IP Address of the Gateway to IPVoice
_4. Customer must provide the IP Address of the router that will be used for
the gateway
_5. Customer must conduct latency testing and transmit this data to IPVoice
_6. Customer must obtain Internet access from their office. (Dial-Up or LAN)
Latency Testing
_1. Customer must set up a computer at the facility using the IP address for
the Gateway
_2. Run the "ping" utility continuously for a period no less than 72 hours.
(Target IP Address for the ping is: 204.181.36.24)
_3. Send the output to IPVoice
Page 16 Confidential
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XXXxxxx.xxx, Inc.
TruePartner Master Distributor Agreement
Appendix H
Beta Testing Functionality Checklist
MultiCom
1. Remote Access via ProComm 3.+ (Requires Internet Connection from Office
Site)
2. Customer Management
3. Customer Invoicing
4. Agent Management
5. Account Management
6. System Reports (printing requires HP III compatible Laser Printer)
7. Real-Time Traffic Information
8. Debit Card Creation and Management
9. Rate Table Management
TrueConnect Gateway
1. Receive and Authorize Inbound Customer Calls
2. Terminate Customer Calls
3. Rate Calls and Debit Customer Accounts
4. Basic Voice Prompts (English)
Page 17 Confidential
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TruePartner Master Distributor Agreement
Appendix I
Prepaid Calling Cards
Page 18 Confidential
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