Exhibit 10.8
INDEPENDENT SALES AGREEMENT
BETWEEN
THE CHILDREN'S INTERNET, INC.
AND
INFOLINK COMMUNICATIONS, LTD.
This Agreement ("Agreement") is made and entered into on this 14th day of
August 2003, by and between INFOLINK COMMUNICATIONS, LTD., an Illinois
corporation ("INFOLINK"), whose principal business address is 0000 Xxxx Xxxxxx,
Xxxxx #0X, Xxxxxxx, XX 00000 and THE CHILDREN'S INTERNET, INC., a Nevada
Corporation, ("TCI") whose mailing address is 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, XX 00000. This Agreement (Agreement) is made with reference to the
following facts:
X.XXX is the owner of all right, title, and interest in and to
children's oriented material and programming disseminated over the global
computer network and a secured Internet service currently being used and sold
as The Children's Internet{reg-trade-xxxx} including, but not limited to a
search engine, browser, secure e-mail system, education and entertainment
portals, and all its proprietary characters and content, web pages, and home
rooms (the "Product").
B. INFOLINK is a sales organization in the Internet Infrastructure
industry, and desires to sell and market the product and services of TCI to its
customers as parts of its product offering.
C. TCI will compensate INFOLINK on a commission basis to the extent
provided in this agreement.
D. INFOLINK and TCI declare their intention that nothing in this
Agreement shall make either party an employee, partner, or agent of the other
party and that the relationship of TCI to INFOLINK shall be that of an
independent contractor.
NOW THEREFORE, in consideration of the mutual covenants and premises
contained herein, the parties agree as follows:
1. RELATIONSHIP OF PARTIES. The parties agree and intend that the
relationship between them created by this Agreement is that of
principal and independent contractor. Neither party is an employee of
the other party, and is not entitled to the benefits normally provided
to employees, including, but not limited to, medical insurance and/or
participation in any pension or profit-sharing plan. TCI shall not
represent INFOLINK. The conduct and control of the work to be
performed by INFOLINK under this Agreement rests exclusively with
INFOLINK. TCI and INFOLINK shall perform its respective services in
accordance with workmanlike and ethical standards applicable and
customary to the industry and profession. Except as otherwise
provided in this Agreement, either party shall be free to provide its
services for others in any manner whatsoever during those periods when
it is not performing services under this Agreement.
2. SALES PROCESS. TCI hereby authorizes INFOLINK to perform the
functions allowed under this Agreement on a continuing basis, which
functions are generally described as follows:
0.0.Xxxxxxxx Products. INFOLINK shall be authorized to market the
products and services of TCI as provided herein. Except as
specifically provided herein, TCI shall handle all pricing and
contract management. This shall include the sale of software
products for which INFOLINK will be compensated by TCI as provided
in this agreement.
2.2.Pricing. TCI shall set the rates and charges for their products
and services.
2.3.Paperwork. TCI shall submit original required paperwork to
INFOLINK with each new order of services. TCI shall ensure that at
all times INFOLINK has the most recent and current paperwork for
all products and services.
0.0.Xxxxxxx Materials. TCI agrees, with its best efforts, to provide
the following support materials and/or services to INFOLINK:
2.4.1 TCI shall provide, with its best efforts, any technical data,
descriptions, or other information, concerning the products
and/or services of TCI to be marketed by INFOLINK. TCI shall
inform INFOLINK of any and all additions, modifications or
changes to the products and/or services of TCI on a recurring
monthly basis during the term of this Agreement. This shall
include any updates and enhancements of the software.
2.4.2 TCI and INFOLINK shall mutually agree and define in a separate
addendum Tier 1 and Tier 2 technical support. In general TCI
shall process service requests for Tier 2 Support from
INFOLINK for the use of the services and/or products of TCI.
The various internet service providers ISP to whom the
services or products are sold ("ISP") shall provide the first
response to any and all inquiries from such customers
concerning the products and/or services of TCI. TCI agrees
that the various ISP may forward all Tier 2 calls placed to
the various ISP by its customers for Tier 2 Support to TCI for
the purposes of TCI answering any questions or service
concerns. In no event shall TCI be required to provide Tier 1
Support. The failure of the ISP to so perform shall not
constitute a default by TCI or INFOLINK.
2.4.3 TCI shall provide, with its best efforts and at ISP's cost,
marketing materials including, but not limited to
demonstration disks for free trial and promotional purposes
only, infomercial VHS dubs, sales brochures and procedures to
enable the ISP to perform the obligations contemplated under
this Agreement.
2.4.4 TCI shall provide, with its best efforts, Tier 2 Technical
Support for the software of TCI. The ISP shall provide the
remaining support.
2.4.5 TCI shall provide training to the sales and support staff of
INFOLINK free of charge at TCI headquarters at a mutually
agreed upon time by the parties. This shall include
familiarization of the software of TCI and shall include
training as to software updates
2.5.Operations by TCI. TCI represents that it will maintain a mutually
agreed upon written service level for the service provided under
this agreement. TCI represents that it will maintain the necessary
enhancements and updates needed for the software to maintain the
level of service for services provided under this agreement.
3. COMPENSATION.
3.1.INFOLINK Compensation. In the event that TCI is compensated on a
monthly basis INFOLINK shall receive $0.95 per application per
month. Such amounts shall be paid to INFOLINK on the 31st day of
each month for all amounts received in the one-month period
beginning one month prior to such payment date. Such commissions
shall be paid for all amounts received for the life of each
contract (including any renewals). The rate of INFOLINK is based
on a wholesale rate of $5.00 per application per month. In the
event that TCI raises the wholesale rate, the rate of INFOLINK's
compensation shall be increased accordingly in the same percentage
as the percentage increase in the wholesale rate. In no event
shall the rate of INFOLINK decrease unless otherwise agreed in
advance in writing by XXX XXXXXXX. The obligations of TCI shall
survive the sale of TCI or substantially all of the assets of TCI
and TCI shall make adequate provision for the survival of this
section in any such transaction.
0.0.XXX Compensation. TCI hereby acknowledges that it receives all of
its consideration under this Agreement through its contracts with
its customers. INFOLINK shall not be responsible for any payment
to TCI for any service provided hereunder, regardless of whether
TCI has received any payment from a customer.
3.3.Reports. TCI shall provide monthly reports of all application
fees earned by INFOLINK in the prior month. Such reports shall be
in a form determined by TCI and reasonably acceptable to INFOLINK.
INFOLINK shall have the right to audit payments received by TCI
(upon seven (7) days prior notice) for all accounts for which a fee
is due once every 12 months to verify TCI's compliance with this
Agreement.
3.4. Advance Xxxxxxx.Xx the event that TCI is compensated (as defined
in Section 3.1 of the agreement) on a lump sum basis (as opposed to
a monthly basis) with an advance payment from any customer or ISP,
INFOLINK shall receive advance payment in a lump sum for TCI's
product, whether sold as TCI software only, or as part of a bundled
package. For example if TCI is loaded onto 1,000 computers that is
sold as part of a bundled packaged that includes a 3 year
subscription for TCI services, then TCI would be entitled to an
advance payment of $34,200 (1,000 x $0.95 x 36= $34,200).
4. TERM; TERMINATION.
4.1.Term. The services to be provided by TCI shall commence
concurrently with the date of this Agreement, and shall continue
for a period of three (3) years. This Agreement shall
automatically renew for three (3) additional one (1) year terms
unless a party gives the other party at least thirty (30) days
notice prior to the expiration of the then current term of its
intention to terminate this contract.
4.2.Termination for Breach. Either party may terminate this Agreement
on thirty (30) days prior written notice for material breach of
this Agreement that is not cured during such notice period. For
purposes of this Agreement, termination for "breach" shall include,
but shall not be limited to, making misrepresentations to
prospective customers, criminal acts, disclosing confidential
information, willful misconduct, gross negligence, fraud,
unethical, any other illegal conduct, or non-payment of
compensation under this agreement.
4.3.Bankruptcy. Either party may terminate this Agreement upon written
notice to the other party, if such party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors or becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
4.4.Effect of Termination. In the event that this agreement is
terminated for any reason, other than a breach by INFOLINK and
except as provided in Section 4.2 of this agreement, TCI shall
continue to pay INFOLINK all amounts otherwise due to TCI until the
expiration of each contract signed by or its customer hereunder
even if the term of these contract extends beyond the term of this
agreement. In addition, INFOLINK will continue to provide all
services to TCI that it provides under this agreement until such
time as TCI notifies INFOLINK that no such services are necessary.
In the event INFOLINK continues to provide such services, the
compensation above shall not be adjusted.
4.5.Termination of Payment Obligation to INFOLINK. If this section is
inconsistent with any other section of this agreement, this section
shall apply. In the event that payment from any customer of TCI
ceases for any reason, no further compensation will be owed by TCI
to INFOLINK except to the extent that TCI has been,in fact, paid by
the customer. In the event that INFOLINK terminates this agreement
under Section 4.2 and TCI is not being compensated by the customer,
no further compensation will be owed by TCI to INFOLINK except of
the extent that TCI has been, in fact, paid by the customer.
5. INDEPENDENT ACTIVITIES.
5.1.Other Activities. Nothing contained in this Agreement (except as
provided in Section 5.2 of the agreement) shall prevent either
party from participating in activities not directly required for
the performance of its obligations pursuant to this Agreement.
Such participation or activities, whether in the telecommunications
field/industry or any other business activity engaged in for profit
or personal or professional advantage, shall be conducted
independently and without reference to the relationship between
INFOLINK and TCI.
0.0.XXX Exclusivity. Not Applicable.
5.3.INFOLINK Exclusivity. Not Applicable. This shall not affect
the rights provided under a separate agreement between the
companies as to INFOLINK's exclusivity as to government contracts
and corporate sponsors as defined under that separate agreement.
6. EXPENSES. INFOLINK and TCI shall not be reimbursed by the other party
for expenses incurred in connection with providing the services
hereunder, including, but not limited to, all automobile-related
expenses, travel and entertainment expenses, and any other amounts
expended by the parties in order to provide the services required by
this Agreement.
7. TAXES. INFOLINK shall not deduct any state or federal income tax or
FICA contributions from payments made to TCI. TCI agrees to make all
necessary FICA contributions and to pay any and all taxes in
accordance with applicable law and will hold INFOLINK harmless from
any liability or expense arising from or in connection with any
failure by TCI to pay such taxes, including interest and penalties.
TCI acknowledges that INFOLINK shall not make employment and SDI
deductions from payments made to TCI. INFOLINK shall not be required
to include TCI under any applicable workers' compensation insurance
program and/or policy, and TCI acknowledges that in the event of any
injury of any kind, TCI will not be entitled to any medical or other
disability benefits. Notwithstanding the foregoing, the fact that the
parties, at their own cost, may carry workers' compensation insurance
for its own benefit or for the mutual benefit of itself and those
contractors which are individuals providing the services as described
in this Agreement, shall not create any inference of employment,
partnership, or other agency relationship.
8. OTHER DEDUCTIONS. TCI shall have the right to deduct from any
compensation payable to INFOLINK, any debts, loans, advances,
expenses, or other charges incurred by TCI at the request and on
behalf of INFOLINK. Said request by INFOLINK must be in writing prior
to the debt, loan, advance, expense or other charge being incurred.
9. INDEMNIFICATION.
0.0.XXX Indemnity. TCI agrees to indemnify, defend and hold harmless
INFOLINK, from any and all claims, actions, judgments, demands,
costs, expenses, and/or liabilities, including, without limitation,
attorneys fees, which INFOLINK may incur or become liable for by
reason of any action by TCI arising out TCI's willful misconduct,
gross negligence, fraud, intentional misrepresentation, unethical
or illegal conduct, or any failure to abide by TCI's established
policy and procedures in effect from time to time, or applicable
rules and regulations of any governmental agency or authority
having jurisdiction over TCI's activities on behalf of INFOLINK as
provided in this Agreement.
9.2.INFOLINK Indemnity. INFOLINK agrees to indemnify, defend and hold
harmless TCI, from any and all claims, actions, judgments, demands,
costs, expenses, and/or liabilities, including, without limitation,
attorneys fees, which TCI may incur or become liable for by reason
of any action by INFOLINK arising out INFOLINK's willful
misconduct, gross negligence, fraud, intentional misrepresentation,
unethical or illegal conduct, or any failure to abide by TCI's
established policies and procedures in effect from time to time, or
applicable rules and regulations of any governmental agency or
authority having jurisdiction over INFOLINK's activities on behalf
of TCI as provided in this Agreement.
10. PROPRIETARY INFORMATION AND NON-DISCLOSURE.
10.1.Confidential Information. TCI and INFOLINK acknowledge that they
may have access to and become aware of certain competitive
confidential information of the other, including personnel
information, rates and rate tables, secret processes, know-how,
customer lists, receipts, formulas, software, or other technical
data created and applied in connection with the services and/or
products provided and sold by the other.
10.2.Non Use. TCI and INFOLINK shall not use to their own advantage or
the advantage of any other person, business or entity, except as
specifically provided in this Agreement, either during their
association or at any time thereafter, any information gained for
or from the business, files, and/or records of the other. TCI and
INFOLINK acknowledge that such information is proprietary,
constitutes a trade secret, and shall not be disclosed to any third
party and that in the event of an unauthorized disclosure and/or
use of such information, significant damages will be incurred or
suffered by the other.
10.3.Breach. TCI and INFOLINK acknowledge that in the event of a
breach of this covenant of non-disclosure, in addition to any other
remedy, which may be available to the other, injunctive relief from
a court of competent jurisdiction is appropriate.
11. WARRANTY.
11.1.Warranty of INFOLINK. INFOLINK represents and warrants that it
has the full power and authority to enter into this Agreement and
to grant the rights contained herein to TCI. INFOLINK represents
and warrants that it shall perform all services described herein
in a professional and workmanlike manner and in accordance with
industry standards.
11.2.Warranty of TCI. TCI represents and warrants that: it has the full
power and authority to enter into this Agreement and to grant the
rights contained herein to INFOLINK. TCI represents and warrants
that it shall perform all services described herein in a
professional and workmanlike manner and in accordance with industry
standards.
12. ARBITRATION. All disputes or claims between TCI and INFOLINK arising
from, in connection with, or in any way related to this Agreement,
which cannot be informally resolved between the parties, shall be
submitted to binding arbitration in the County of Contra Costa,
California, for disposition in accordance with the rules and
regulations of the American Arbitration Association, as may be amended
from time to time.
13. ATTORNEY'S FEES. In the event of any controversy related to,
concerning or arising out of this Agreement, or any facts based upon
or involving this Agreement or the parties hereto, the prevailing
party, whether in court, arbitration, or by way of out of court
settlement, shall be entitled to recover from the non-prevailing party
attorneys fees, court costs, and other expenses relating to such
controversy, if any.
14. NOTICES. Any notices, consent, requests, approvals, demands, or other
communications required or permitted by this Agreement or by law shall
be in writing and shall be deemed sufficient if deposited in the
United States mail, certified or registered postage prepaid, addressed
to the parties at the address stated below or at such other address as
may hereafter be designated in writing by any party to the other
party:
If to INFOLINK: Infolink Communications, Ltd.
ATTN: Xxxxxxx Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxx Xxxxxx, Attorney
000 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
If to TCI: CHILDREN'S INTERNET, INC.
ATTN: Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
15. NON DISCRIMINATION. No discrimination shall be made of persons under
this Agreement because of race, color, national origin, age, ancestry,
religion, or sex of such person.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and correctly sets forth the rights, duties, and
obligations of all of the parties as of its date. Any prior
agreement, promises, negotiations or representations not expressly set
forth in this Agreement are of no force and effect.
17. AMENDMENTS. No provision of this Agreement shall be modified, waived,
or otherwise amended except by written instrument signed by each of
the parties hereto.
18. ASSIGNMENT. The rights, duties and obligations of either party
hereunder shall not be assigned without the express written consent of
other party, which consent shall not be unreasonably withheld.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
20. AUTHORIZATION. By execution below, each of the parties hereto
represent and warrant that it is duly authorized by its Board of
Directors or pursuant to any applicable provisions of its charter, to
enter into and fully perform the terms and provisions of this
Agreement.
INFOLINK TCI
INFOLINK COMMUNCATIONS, LTD. CHILDREN'S INTERNET, INC.
An Illinois Corporation A Nevada Corporation
By: /S/ Xxxxxxx Xxxxxxx By: /S/ Xxxxxx Xxxxxxxx
-------------------------- -----------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Title: President Title: President
Dated: August 14, 2003 Dated: August 14, 2003
Confidential & Proprietary INFOLINK ___ TCI ___
