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Effective Date: January 2, 2001
[LOGO]
COOPERATIVE MARKETING AGREEMENT
THIS AGREEMENT is between:
In4Structures LLC ("In4Structures")
One Bala Avenue
Bala Cynwyd, PA 19004
and Celerity Systems, Inc., a Delaware corporation, with offices 122 Perimeter
Park Drive, Knoxville, Tennessee 37922 ("Celerity").
I. Scope of this Agreement
Celerity is engaged in the business of developing and supplying
application/service products including but not limited to Cable TV,
Interactive TV, High-Speed Internet, and customized Web-based services
to apartment tenants and management ("Products") in the tenant service
environments throughout the world directly and through its network of
marketing subsidiaries and joint ventures;
Celerity has entered into Service agreements (the "Service Agreements")
with In4Structures for the provision of the Celerity products and
services at properties supported by In4Structures.
The parties believe that cooperative marketing operations utilizing
Celerity products, services and each party's marketing organizations in
a complementary and integrated approach with the aforementioned
industry customers will work to their mutual benefit and create larger
market opportunities for each party to the Service Agreements for their
respective products and services;
II. Entire Agreement
With respect to its subject matter, this Agreement constitutes the
entire agreement of the parties and supersedes all prior proposals and
agreements, both written and oral, and all other written and oral
communications between the parties, except that provisions of prior
agreements between the parties which survive termination, cancellation
or expiration of such agreements will not be superseded by this
Agreement, unless specifically agreed to by the parties in writing.
This Agreement may be modified only in writing, signed by an authorized
representative of each party.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS
AGREEMENT, WHICH TOTALS SIX (6) PAGES AND ALL ATTACHED SCHEDULES, AND
THAT IT IS NOT ENTERING INTO THIS AGREEMENT ON THE BASIS OF ANY
REPRESENTATIONS NOT EXPRESSLY SET FORTH HEREIN.
ACCEPTED for:
CELERITY CORPORATION IN4STRUCTURES LLC
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By: /s/ Kenneth D. Van Meter Date January 5, 2001 By: /s/ Skip Gosnell Date January 5, 2001
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Name: Kenneth D. Van Meter Name: Skip Gosnell
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Title: President Title: President
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1. Parties and Products; Scope.
This Agreement is entered into on behalf of and for the benefit of Celerity and
its subsidiary companies, distributors or resellers, which market Celerity
products and services worldwide (hereafter, the "Celerity Distribution
Channel"). Each party shall cause its subsidiaries, distributors or resellers to
observe and perform its respective commitments and obligations set forth in this
Agreement in their respective marketing territories throughout the world
provided such subsidiaries, distributors or resellers agree to be bound by the
agreement.
In4Structures shall observe and perform the commitments and obligations of
In4Structures set forth in this Agreement hereunder. In those instances where
In4Structures causes its sales agents to participate in any cooperative
marketing arrangement, In4Structures shall guarantee to Celerity that such sales
agents shall perform in a manner consistent with the terms of In4Structures'
obligations under this Agreement.
2. Cooperative Marketing Arrangement
Celerity and In4Structures will cooperatively market to customers under the
specifications below:
2.1 Celerity Prime Contractor. Celerity will contract directly with the customer
for the supply of services to support the concept testing, pilot, or
installation of Celerity products and services and associated software,
including Celerity subcontracted services to such customer. Celerity will
negotiate directly with the customer for its products, services and maintenance
agreements subject to provisions 2.2 below.
2.2 Joint Marketing. Each party will compensate the other for its support by
payment of a marketing fee to be calculated as a percentage of the revenue
received by that party from the sale of certain products, services or software
license net of customer discounts as follows:
a. Electronic commerce - Electronic commerce (e-Commerce) is defined as
the conduct of financial transactions by electronic means over an Intranet or
the Internet. In this Agreement, e-Commerce refers to any and all electronic
transactions where Celerity or In4Structures has a specific e-Commerce contract
to provide online transactions over an Intranet or the Internet via Celerity
products or services and under which commissions are payable. Where Celerity is
the contracting party, Celerity will share with In Structures [... a percentage]
of said gross commissions from cash collected net of transaction based taxes
collected for any e-commerce transaction conducted via Celerity products or
services at any In4Structures supported property. Where In4structures is the
contracting agent, they shall share [... a percentage] of said gross commissions
from cash collected net of transaction based taxes collected with Celerity.
Gross commissions from cash collected net of transaction based taxes collected
shall be defined as all amounts paid to or received by either party for any
e-commerce transaction conducted over an Intranet or the Internet via Celerity
products or service at any In4Structures supported property.
b. Advertising revenue sharing - Advertising is defined as the display
of any content or logo of any firm or enterprise on the Celerity portal.
Celerity and In4Structures will share net advertising revenue equally for
advertisements displayed at an In4Structures supported property. The amounts
paid will be based on actual cash collected net of transaction based taxes
collected.
c. Celerity products or services reseller agreement -
Celerity shall compensate In4Structures for its sales and marketing efforts
regarding Celerity products or services as follows:
(i) Where In4Structures provides Celerity with a Celerity products or services
sales lead (e.g., name and telephone number of a prospective customer), Celerity
has not already made any personal contact (e.g., telephone or person-to-person
meeting), with such lead regarding Celerity products or services, and Celerity
enters into a contract for the sale of Celerity products or services with the
organization represented by such lead, then Celerity shall pay In4Structures a
commission [...] of the yearly cash collected net of transaction based taxes
collected for the term of the negotiated contract. In4Structures agrees to do
the actual introduction to such parties, or would waive any commission due.
(ii) Where In4Structures provides Celerity with sales and/or marketing
assistance in connection
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with a customer-specific Celerity products or services sales effort, where
In4Structures is the originator of the sale, makes first customer contact, and
such effort results in the sale of Celerity products or services (a "Celerity
product or services Contract"), then Celerity shall pay In4Structures a monthly
commission equal to [... a percentage] of the monthly cash collected net of
transaction taxes collected under the Celerity products or services Contract for
the term of the Celerity products or services Contract.
Exclusivity - During the term of the Celerity products or services contract at
each In4Structures supported property, Celerity will not solicit additional
Celerity products or services properties within a 5 (five) mile radius of the
contracted property or as otherwise agreed to by the Parties on an opportunity
by opportunity basis, except where Celerity provides to In4Structures a
reasonable opportunity to lead a specific potential sale and In4Structures
declines such opportunity. This provision shall not apply to any properties
under contract with Celerity prior to this agreement.
The marketing fees and discounts set forth in 2.2 above may be adjusted in
specific cases to reflect specific requirements, provided that the adjustment
has been mutually agreed to in writing prior to the initiation of marketing
activities with the specific customer account. The parties shall agree in
writing on a payment schedule with respect to marketing fees payable in
connection with each customer account if different from section 2.2. All
recurring marketing payments due under (I), or (ii) shall be paid on a monthly
basis by the end of the month following the collection of the net cash amounts.
3. Warranties
Celerity warrants that it has no knowledge of any intellectual property rights
of third parties that may be misappropriated or violated by using, making,
copying, licensing or distributing the Products.
Each party warrants that it has agreements with its employees and contractors
that are sufficient for the fulfillment of its obligations pursuant to this
Agreement.
EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY HAS MADE ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE,
CONCERNING THE SOFTWARE, THE SCOPE OR DURATION OF ANY MARKETING EFFORT, OR THE
SUCCESS OF ANY SUCH MARKETING EFFORT. NEITHER PARTY HAS RELIED ON ANY EXPRESS OR
IMPLIED REPRESENTATION OF THE OTHER PARTY, WRITTEN OR ORAL, AS AN INDUCEMENT TO
ENTERING INTO THIS AGREEMENT.
4. Indemnification
Celerity, at its own expense, will defend, indemnify, and hold harmless
In4Structures and End-Users against any claim, liability, damage or expense
(including attorneys fees) that the Products infringe a patent or copyright or
are subject to claims of misappropriation of trade secrets protected under law,
provided In4Structures: (1) gives Celerity prompt written notice of such claim,
(2) permits Celerity to defend or settle the claims, and (3) provides all
reasonable assistance to Celerity in defending or settling the claims.
If the Products are held to be an infringement or misappropriation for which
In4Structures is indemnified by Celerity, and their use is enjoined, Celerity
shall, at its option and expense, either (1) procure for End User the right to
continue to utilize the Products, or (2) modify the Products or in such a way
that they shall not continue to constitute such infringement or
misappropriation.
Celerity shall not be liable under this Article 4 if the Products have been
modified by any of the parties indemnified hereunder and such modification is
solely the cause of any such infringement or misappropriation unless such
modifications were made in accordance with Celerity' written instructions.
Subject to the limitation of liability in this Agreement, to the same extent
Celerity or In4Structures would otherwise be legally obligated to a claimant
directly, each agrees to indemnify and hold the other harmless for claims of
damage to the tangible personal property of a claimant and claims of personal
injury to a claimant proximately caused by it or its authorized employees or
agents within the scope of their employment and during the performance of this
Agreement provided the party seeking indemnification gives the other: (a) prompt
written notice of the claim, (b) its cooperation
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and assistance in the settlement or defense of the claim, and (c) the full
authority to settle or defend the matter. This provision shall survive after the
expiration or termination of this Agreement.
6. Notices
All notices hereunder shall be in writing and shall be deemed properly delivered
when duly mailed by registered letter to the other party at its address as first
written above, or to such other address as either party may, by written notice,
designate to the other.
For Celerity:
President
Celerity Systems Inc.
122 Perimeter Park Drive
Knoxville, Tennessee 37922
with copy to Celerity Office of the General Counsel.
For In4Structures:
Skip Gosnell
In4Structures LLC
One Bala Avenue
Bala Cynwyd, PA 19004
5. Confidentiality
Any information which either party may disclose to the other party shall not be
deemed to be confidential and shall be acquired free from any restriction,
unless the information is proprietary to the disclosing party and, if it is
disclosed in tangible form, the disclosing party marks such information as being
confidential to it by marking such information as "Proprietary", "Restricted",
or "Confidential". Any confidential information disclosed orally shall be
identified as confidential at the time of disclosure and thereafter reduced to
tangible form with a copy, prominently marked as aforesaid, delivered to the
receiving party within ten (10) days of the verbal disclosure. When a writing
contains both confidential and non-confidential information, the disclosing
party shall specifically note the information that is confidential.
Each party shall exercise the same degree of care, in no event less than
reasonable care, to avoid the publication or dissemination of the confidential
information of the other party, as it affords to its own confidential
information of a similar nature which it desires not to be published or
disseminated.
Confidential information disclosed under this Agreement shall only be used by
the receiving party in the furtherance of this Agreement or the performance of
its obligations hereunder.
The obligation of the parties not to disclose confidential information shall
survive the termination or cancellation of this Agreement. The obligations
stated in this Article do not apply to Confidential Information: (a) already
known to the recipient at the time of disclosure; (b) independently generated by
the recipient and not derived from the Confidential Information supplied by the
disclosing party; (c) publicly known or available, except where such knowledge
or availability is the result of unauthorized disclosure by the recipient of the
Confidential Information; (d) disclosed to the recipient without a similar
restriction by a third party who has the right to make such disclosure; or (e)
required to be disclosed by the recipient by law, regulation, Court order, or
other legal process.
The obligation not to use or disclose said confidential information shall end
three (3) years after the date of receipt of said confidential information,
except with respect to software for which the obligation shall continue until
the occurrence of any of the events listed above.
Celerity shall be permitted to disclose said confidential information to members
of its Distribution Channel for their use in the furtherance of this Agreement
in accordance with the rights and licenses granted; provided, however, that
members of Celerity Distribution Channel agree to protect such information to
the extent provided herein.
Nothing contained in this Article 7, or elsewhere, shall be construed as
preventing Celerity from marketing or sublicensing the Products in the same
manner as it may then market or sublicense its other products.
6. Limitation of Liability
Except as expressly stated in this Agreement, no party hereto has made or relied
on any warranties or representations (express or implied, by operation of law or
otherwise)
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regarding the scope, duration or success of any marketing effort which any party
may undertake.
In no event will any party be liable to another party for any incidental,
indirect, special or consequential damages, including, but not limited to, loss
of use, loss of goodwill or other diminution in the value of the other's
business, revenues, profits or savings, even if such party knew or should have
known of the possibility of such damages.
7. Term and Termination
This Agreement will begin on the date specified above and will continue in
effect for a period of ten (10) years, unless extended by the parties in writing
within 90 days of the end of the current term.
If either party breaches this Agreement, the other may cancel it upon 30 days
written notice, unless the breach is cured within the notice period, provided
however, that any outstanding contract concluded with a customer during the term
of an agreed cooperative marketing period under Section 2.1 shall be subject to
the terms of this Agreement and its payment obligations, notwithstanding a
party's notice of cancellation.
A party may terminate this Agreement at any time upon written notice, without
providing an opportunity to cure, if (i) there is a change in control or
ownership of the other party (or its parent, subsidiaries or any affiliated
companies) or if all or substantially all of the assets of the other party are
sold, (ii) a receiver is appointed for the other party or its property, or (iii)
the other party is liquidated or dissolved.
With the exception of any earned commission amounts still to be paid pursuant to
the terms of this Agreement, no damages (whether direct, consequential, special
or incidental and including expenditures and loss of profit), indemnities or
other compensation will be due or payable to a party by reason of termination or
cancellation of this Agreement.
8. Dispute Resolution
Celerity and In4Structures agree that any claim or controversy ("Dispute")
between the parties arising out of this Agreement shall be resolved through the
following procedures, which either party may initiate by written demand
describing their claim(s) and the amount(s) of such claims(s) (the "Demand")
delivered to the other party:
Step 1. The parties shall first attempt to resolve the Dispute through
good-faith consultation and negotiation between management representatives of
the parties possessing full authority to resolve the matter for their respective
organizations. Such representatives shall meet promptly after delivery by either
party to the other of a Demand for a dispute resolution meeting. After such
meeting, either party may start mandatory non-binding mediation before a single
arbitrator, under the commercial mediation rules of the American Arbitration
Association (AAA).
Step 2. If the dispute remains unresolved 45 days after the receipt of the
demand, either party may start binding arbitration before a single arbitrator,
under the commercial arbitration rules of the AAA. No statements by, or
communications between, the parties during negotiation or mediation, or both,
will be admissible for any purpose in arbitration. The arbitrator(s) will have
no authority to award punitive damages, and their decision must be consistent
with this Agreement. Each party will pay its own expenses and attorney's fees.
Either party may use a court of competent jurisdiction to (a) enforce an
arbitration award; (b) seek temporary equitable relief to protect its interests;
or (c) recover specific property, including an action in replevin. To the extent
permitted by law, no action related to this Agreement may be brought more than
two years after the cause of action first accrued, except if a demand is made
within 45 days before the end of this two (2) year period, the parties shall
have an additional 60 days from the demand to start mediation under this
Agreement.
9. Force Majeure
Neither In4Structures nor Celerity shall be liable to the other for delays in
the performance of or completion of this Agreement if notice of such delay is
provided as required herein and if such delay is caused by strikes, riots, wars,
government regulations, acts of God, fire, flood or other similar causes beyond
its control; provided, however, if such delay exceeds thirty (30) days, the
other party shall have the option, exercisable by written notice, to cancel this
Agreement pursuant to Article 7. Whenever any occurrence (e.g., an event of
Force Majeure or a
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filing under a bankruptcy law) is delaying or threatens to delay either party's
timely performance under this Agreement, that party shall promptly give notice
thereof pursuant to Article 4, including all relevant information with respect
thereto, to the other party.
10. Waiver
The failure of either party to insist, in any one or more instances, upon the
performance of any of the terms, covenants or conditions of this Agreement or to
exercise any right hereunder, shall not be construed as a waiver of the future
performance of any such term, covenant or condition or the future exercise of
such right.
11. Severability
If any court should find any particular provision of this Agreement void,
illegal, or unenforceable, then that provision shall be regarded as stricken
from this Agreement and the remainder of this Agreement shall remain in full
force and effect.
12. Conflict of Interest
Any commissions or e-commerce revenue shares under 2.2(a) and 2.2(c),
respectively, earned for outstanding contracts concluded with a customer during
the term of this Agreement shall be subject to the terms of this Agreement and
its payment obligations, notwithstanding termination of this Agreement.
13. Publicity
Neither party shall, except as may be required by law or federal regulation, or
except with the prior written permission of the other party, publicly advertise
this Agreement or disclose its contents.
14. Miscellaneous
The relationship of the parties under this Agreement is that of independent
contractors only, and neither is authorized to act as the agent or legal
representative of the other or to make representations or commitments on behalf
of the other. No provision of this Agreement or any act by either party in
furtherance of the intent of this Agreement will create a joint venture
relationship between the parties for any purpose whatsoever. This agreement does
not impose any obligation of exclusivity upon either party.
No party is authorized to use the trade name or any trademark of the other party
except in promotional material supplied or agreed by the party owning the name
or mark.
The Agreement or any performance due under it may not be assigned by either
party without the written consent of the other party. Any purported assignment
will be void and of no effect.
This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania, United States of America. The parties hereby consent to
jurisdiction and venue in the state and federal courts of the Commonwealth of
Pennsylvania.
The rights and obligations of the parties under sections 4, 5 and 6 will survive
any termination or cancellation of the Agreement.
This Agreement in its entirety is specific to In4Structures and Celerity, and
may only be extended to other prospects/opportunities by mutual agreement in
writing. [. . .]
