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EXHIBIT 10.35
SALES REPRESENTATION AGREEMENT
This SALES REPRESENTATION AGREEMENT (this "Agreement") is entered into this
7th day of July, 2000 (the "EFFECTIVE DATE"), by and between SystemsFusion US,
Inc., a Delaware corporation ("SYSTEMSFUSION") and [Qorus.com,Inc. d/b/a Aelix],
a Florida corporation (the "VENDOR").
RECITALS
WHEREAS, the Vendor develops and/or distributes computer software products
and applications which are licensed to and utilized by end users; and
WHEREAS, SystemsFusion has developed Software that enables the ISPs to
access computer software products and applications via the Internet and to make
such products and applications available to End Users; and
WHEREAS, SystemsFusion and the Vendor desire to make the Products
accessible to the ISPs and, ultimately, End Users via the Software.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, SystemsFusion and the Vendor hereby agree as
follows:
TERMS OF AGREEMENT
1. Definitions. The following terms when used in this Agreement, including its
preamble and recitals, shall have the following meanings, such meanings to be
equally applicable to the singular and plural forms thereof:
1.1 "CUSTOMIZED" shall mean the explicit approval by both parties that a
Product functions to specification and is permitted to be offered for sale
pursuant to the terms of this Agreement.
1.2 "END USER" shall mean any customer of an ISP.
1.3 "ISP" shall mean an Internet service provider that has entered into the
ISP Licensing Agreement with SystemsFusion.
1.4 "ISP LICENSING AGREEMENT" shall mean the agreement entered into by and
between an ISP and SystemsFusion, pursuant to which the ISP obtains a license to
use the Software.
1.5 "PRODUCT" shall mean the computer software programs and any upgrades or
enhancements thereto listed on the Product Price List that are proprietary or
under license to the Vendor, compatible with and capable of being administered
by the Software, and thus accessible to End Users' computers or computer devices
via their ISP.
1.6 "PRODUCT PRICE LIST" shall mean the list attached hereto as Exhibit A,
as may be updated from time to time by the Vendor, deliverable by the Vendor to
SystemsFusion and
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containing (i) the names of the Products that have been Customized and (ii) the
prices at which such Products can be purchased by the ISPs for resale to End
Users.
1.7 "PRODUCT SITE" shall mean an Internet website developed and maintained
by the Vendor, which can be accessed by End Users from links on the ISPs'
websites and which provides End Users with information concerning the Products.
1.8 "REFERRAL FEE" shall mean the fee paid by the Vendor to SystemsFusion
for SystemsFusion's marketing, tracking, and billing of the Products, as
detailed in Schedule I as may be amended from time to time.
1.9 "SOFTWARE" shall mean the computer programs and applications, including
any upgrades or enhancements thereto, making up the Evolutionware automated
Internet website administration computer software that is owned, developed, and
distributed from time to time by SystemsFusion.
1.10 "UMS" shall mean one month of service for a unified messaging service
account sold by the Vendor through SystemsFusion for re-sale to ISP and/or End
Users.
2. APPOINTMENT AND ACCEPTANCE
2.1 The Vendor hereby appoints SystemsFusion as a nonexclusive sales
representative. with respect to the Products and authorizes SystemsFusion to
make the Products available for purchase by the ISPs for resale to End Users via
the Software.
2.2 SystemsFusion hereby accepts the appointment referenced in Section 2.1.
3. CUSTOMIZATION OF PRODUCTS
3.1 As soon as reasonably practical after the Effective Date, the Vendor
shall customize each Product, at its own cost, to be compatible with and
administratable by the Software.
3.2 To assist the Vendor in Customizing the Products, SystemsFusion shall
provide the Vendor with sufficient instruction, information, specifications, and
technical assistance to allow the Vendor to familiarize itself with the
Software.
3.3 No Product shall be available to the ISPs or End Users until it has
been customized.
4. MARKETING OF THE PRODUCTS
4.1 No later than three days after the first Products have been Customized,
the Vendor shall deliver the Product Price List to SystemsFusion. The Vendor
shall continually update the Product Price List to reflect each new Product that
is Customized and deliver the same to SystemsFusion.
4.2 Upon receipt of the Product Price List and any subsequent update
thereto, SystemsFusion shall post the Product Price List on its website for
access by the ISPs.
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4.3 The price charged by the Vendor to the ISP for each Product, as
reflected in the Product Price List, shall not exceed the price charged for each
Product by the Vendor to the Vendor's other Product resellers.
4.4 SystemsFusion shall use its best efforts to market the Software to ISPs
so as to increase the total number of End Users with access to the Products. In
addition, SystemsFusion shall place the Vendor's logos and trademarks on
SystemsFusion's website.
4.5 As soon as reasonably practical after the Effective Date, the Vendor,
at its cost, shall develop and maintain a Product Site, as more fully described
in Section 5.
5. PRODUCT SITE
5.1 As soon as reasonably practical after the Effective Date, the Vendor,
at its cost, shall develop and maintain the Product Site in accordance with this
Section and in the format requested by SystemsFusion.
5.2 The Product Site shall be accessible by the ISPs and End Users via
links established on SystemsFusion's and the ISPs' websites. The Product Site
shall contain information, documentation, marketing, and training materials for
each Product available pursuant to this Agreement.
5.3 The Product Site shall prominently display SystemsFusion's name and
logo.
6. TRACKING AND BILLING
6.1 Initial Payment. Upon mutual execution of this Agreement by the parties
hereto, SystemsFusion shall pay to the Vendor a sum of $35,000 towards the
pre-purchase of 5000 UMS, at an initial price per UMS of $7 ("Per Unit Cost").
The Vendor shall record such $35,000 as a credit balance on the amount owed to
the Vendor for the sale of UMS (the "Positive Balance"). Thereafter,
SystemsFusion shall be entitled to re-sell the pre-purchased 5000 UMS without
the payment of any additional sum to the Vendor, and for each such re-sale the
Vendor shall deduct an amount equal to $7 from the Positive Balance until such
Positive Balance is exhausted. For each UMS purchased and resold through the
Software after exhausting the Positive Balance, SystemsFusion shall pay to the
Vendor, pursuant to Section 6.4 hereof, a sum equal to the Per Unit Cost then in
effect as specified in the Product Price List.
6.2 Tracking and Billing. The Software shall enable SystemsFusion to track
(i) the total number of each Product licensed to End Users and (ii) the total
amount owed by the ISP for each Product licensed. On or before the seventh (7th)
day of each month (beginning on the seventh (7th) day of the first month after
the month in which this Agreement becomes effective), SystemsFusion shall
deliver to each ISP an invoice listing, (i) the total number of each Products
purchased by such ISPs' End Users in the preceding month (ii) the cost charged
by the Vendor to such ISP for each Product purchased based on the prices listed
in the Product Price List, and (iii) the total amount due for the preceding
month from such ISP to the Vendor, to be collected by SystemsFusion.
Notwithstanding anything in this Section 6.2, SystemsFusion shall require each
ISP to remit payment as and when due pursuant to Section 6.4 hereof.
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6.3 Collection by ISP. SystemsFusion shall require that, concurrently with
the purchase of a UMS by an End User, the ISP bill such End User (i) an amount
determined by the ISP as an appropriate charge for an UMS, which amount shall
equal at least the Per Unit Cost then effect, and (ii) a security deposit for
payment of any telephone company charges that the End User may incur during the
monthlong duration of the UMS (the "Security Deposit").
6.4 Remittance. SystemsFusion shall require the ISP, within 30 days of
billing the End User, to remit to SystemsFusion an amount equal to [the sum of
the Per Unit Cost then in effect and the Security Deposit]. Any remittance
received by SystemsFusion after such date shall be deemed late and shall be
subject to interest at a rate equal to the lower of 10% per year or the highest
applicable rate allowed by law. Within fifteen (15) days after SystemsFusion
receives payment from the ISPs, SystemsFusion shall retain its Referral Fee and
remit to the Vendor the balance of all amounts it received from the ISPs related
to the Products.
6.5 Upon the expiration or termination of this Agreement, SystemsFusion
shall continue to:
6.5.1 track, in accordance with Section 6.1, the continued use of the
Products by End Users who had used such Products prior to the expiration or
termination date;
6.5.2 deliver to the ISPs an invoice consistent with the requirements
of Section 6.2 for any amounts that remain outstanding; and
6.5.3 remit to the Vendor amounts received from the ISPs for the
Products less Referral Fee in a manner consistent with Section 6.4.
6.6 Audit Right.
6.6.1 In the event that the Vendor disputes the amount of any of the
items listed in this Section 6, the Vendor shall have a right to retain a "Big
Four" nationally recognized accounting firm to audit the records used by
SystemsFusion to compile such amounts; provided, that the Vendor shall only be
entitled to exercise such audit right once per calendar year.
6.6.2 Vendor shall pay all costs associated with the audit unless the
results of the audit indicate that the aggregate amounts of the disputed amounts
differ from those originally calculated by SystemsFusion by more than 10%, in
which case SystemsFusion shall pay all costs associated with the audit.
7. COMPENSATION AND PAYMENT TERMS. As compensation for SystemsFusion's
marketing, tracking, billing, and other obligations under this Agreement, the
Vendor shall pay to SystemsFusion a Referral Fee in accordance with this Section
7.
7.1 The Vendor shall pay to SystemsFusion a Referral Fee for each Referral
Fee Period. The initial Referral Fee Period shall begin on the Effective Date
and shall end on the last day of the first month after the Effective Date. Each
subsequent Referral Fee Period shall begin on the first day of each month and
shall end on the last day of each month thereafter.
7.2 The amount of the Referral Fee shall be equal to a percentage (which
percentage shall increase as the number of Products sold by the Vendor
increases) of the gross sales of the
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Products sold to End Users from and after the Effective Date, in accordance with
Schedule I of this Agreement.
8. ADDITIONAL OBLIGATIONS OF THE VENDOR. During the term of this Agreement, the
Vendor shall:
8.1 Make all new versions of the Products and any updates or enhancements
thereto available to the ISPs and End Users via the Software, as soon as such
new versions, updates, and enhancements are sold or licensed to any third party.
8.2 Be the sole provider of 3rd level technical support to the ISPs with
respect to the functionality and operation of the Products, unless the Vendor
transfers such obligations via a written agreement to SystemsFusion or a third
party approved by SystemsFusion.
8.3 Fix any problems associated with the Products within thirty (30) days
after receiving notice thereof. In the event that such problems are not fixed
within the thirty (30) day period, SystemsFusion shall, at its option, suspend
offering the Products to the ISPs until such time as the problems have been
remedied.
8.4 Permit one or more links to the Product Site to be established on each
ISP's web page.
8.5 The Vendor shall use its best efforts and negotiate in good faith
towards reaching an agreement to limit the amount of telephone company charges
that each ISP may incur through the use of UMS by such ISP's End Users.
9. Non-Solicitation.
9.1 The Vendor shall not directly or indirectly sell, attempt to sell, or
otherwise make available the Products to the ISPs or End Users, other than
pursuant to this Agreement, during the term of this Agreement and for a period
of one year from the date of termination or expiration.
9.2 Notwithstanding Section 9.1, upon the termination or expiration of this
Agreement, the Vendor shall be permitted to sell or make the Products available
to the ISPs or End Users immediately if it delivers payment to SystemsFusion in
an amount equal to the aggregate amount of SystemsFusion's Referral Fee for the
six months prior to the date of termination or expiration.
9.3 If any of the ISP Licensing Agreements are terminated or expire and
with the exception of the continued use of Products by End Users who purchased
such Products prior to the termination or expiration date, the Vendor shall not
sell, attempt to sell, or otherwise make available the Products directly or
indirectly to such ISP for a period of one (1) year from the date of termination
or expiration without SystemsFusion's prior written consent.
10. OWNERSHIP OF INTELLECTUAL PROPERTY. Notwithstanding any other provision of
this Agreement, at all times SystemsFusion shall own and retain all right,
title, and interest in and to the Software and all intellectual property rights
associated therewith, and the Vendor shall own
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and retain all right, title, and interest in and to the Products and all
intellectual property rights associated therewith.
11. LICENSE TO USE TRADEMARKS AND LOGOS. Each party (the "Granting Party")
grants the other party (the "Receiving Party") a nonexclusive right to display
the Granting Party's trademarks and copyrights for the purpose of marketing the
Products during the period of this Agreement; provided that:
11.1.1 the Receiving Party will use the Granting Party's trademarks and
copyrights in accordance with such reasonable guidelines as may be provided by
the Granting Party from time to time;
11.2 the Granting Party may inspect the Receiving Party's use of the
Granting Party's trademarks and copyrights and require the Receiving Party to
modify such use to a form acceptable to the Granting Party or immediately remove
the Granting Party's trademarks and copyrights at issue;
11.3 such licenses do not and will not confer to the Receiving Party any
right of ownership in, or to, the Granting Party's trademarks or copyrights; and
11.4 the use by Receiving Party of the Granting Party's trademarks and
copyrights will inure to the benefit of the Granting Party.
12. REPRESENTATIONS AND WARRANTIES OF SYSTEMSFUSION. SystemsFusion represents
and warrants that:
12.1 It has full authority and all necessary consents to enter into and to
perform this Agreement.
12.2 It holds all legal rights to the Software and that the use of the
Software, as contemplated in this Agreement, does not violate the legal rights
of any other natural person or legal entity. No third party has claimed any
right, title, or ownership interest in the Software or alleged or notified
SystemsFusion that the Software infringes the rights of any third party.
12.3 It will use the Vendor's trademarks and logos only in the manner
contemplated in this Agreement.,
12.4 At no time shall it own or retain any right, title, or interest in or
to the Products, nor shall it be a licensor or sub-licensor of the Products.
13. REPRESENTATIONS AND WARRANTIES OF THE VENDOR. The Vendor represents and
warrants that:
13.1 It has full authority and all necessary consents to enter into and to
perform this Agreement.
13.2 It holds all the legal rights to the Products and that the use and
sale of the Products, as contemplated in this Agreement, does not violate the
rights of any other natural person or legal entity. No third party has claimed
any right, title, or ownership interest in any
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Product or alleged or notified the Vendor that any of the Products infringe the
rights of any third party.
13.3 It shall make the Products, including all updates and enhancements
thereto, compatible with the Software as soon as reasonably practical after the
Effective Date and shall continue to ensure that the Products remain compatible
with the Software throughout the term of this Agreement.
13.4 The prices charged to ISPs for the Products shall be equal to or lower
than the prices offered to the Vendor's other retailers.
13.5 At no time shall it own or retain any right, title, or interest in or
to the Software.
14. CONFIDENTIAL INFORMATION
14.1 Pursuant to this Agreement, each party will receive confidential
information (as defined in Section 14.4) belonging to the other party (the
"Confidential Information"). Each party shall hold the Confidential Information
of the other party in strict confidence and shall return such Confidential
Information to the other party immediately after the termination or expiration
of this Agreement.
14.2 Notwithstanding Section 14.1, neither party shall be required to
maintain the confidentiality of any of the following information:
14.2.1 information that becomes part of the public domain by
publication or otherwise, except by breach of this Agreement;
14.2.2 information that was in the receiving party's possession prior
to the time of disclosure (as reflected in its written records) and which was
not acquired, directly or indirectly, from the disclosing party;
14.2.3 information that the receiving party receives from third
parties, provided, that such information was not obtained by such third parties
on a confidential basis; or
14.2.4 information that is produced in compliance with applicable law
or court order, provided, that the other party is given reasonable notice of
such law or order and an opportunity to attempt to preclude or limit such
production.
14.3 The parties acknowledge and agree that the Confidential Information
constitutes valuable trade secret of the disclosing party and that any
unauthorized disclosure or unauthorized use of such information by the receiving
party, or any of its employees, or agents would cause irreparable harm for which
the other party's remedies at law shall be inadequate. The parties agree that in
addition to any other remedies available, each shall have the right to seek the
issuance of immediate injunctive relief, without bond, enjoining the breach or
threatened breach of the other party's obligations set forth in this Section 14.
14.4 As used in this Agreement, the term "Confidential Information" shall
mean trade secrets, proprietary information, and all other knowledge,
information, documents, or materials, owned, developed, or possessed by the
disclosing party, whether in tangible or intangible form,
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which relate to the disclosing party's research, business operations, customers,
business relationships, products, financial information, marketing information,
data bases, and computer programs, designs, models, and operating procedures.
15. INDEMNIFICATION
15.1 Each party, at its own expense, shall indemnify, defend, and hold
harmless the other party and the other party's parent companies, officers,
directors, employees, representatives, and agents, and each of them, against any
third party claim, demand, suit, action, or other proceeding brought against
such entity and/or person, and all damages, awards, settlements, liabilities,
losses, costs, and expenses related thereto (including, without limitation,
attorney's fees) to the extent that such claim, suit, action, or proceeding is
based on or arises from its breach of any of its representations and warranties
set forth in Sections 12 or 13, respectively, of this Agreement.
15.2 The Vendor, at its own expense, shall indemnify, defend, and hold
harmless SystemsFusion and SystemsFusion's parent companies, officers,
directors, employees, representatives, and agents, and each of them, against any
third-party claim, demand, suit, action, or other proceeding brought against
SystemsFusion or such entity and/or person, and all damages, awards,
settlements, liabilities, losses, costs, and expenses related thereto
(including, without limitation, attorney's fees) to the extent that such claim,
suit, action, or proceeding is based on or arises from:
15.2.1 the non-operation or malfunction of the Products;
15.2.2 any personal injury caused by the Products;
15.2.3 any damage to an ISP's administration server, network, or
website caused by the Products;
15.2.4 any damage to an End User's computers or computer devices caused
by the Products, including any damage caused by a virus that is downloaded to
the End Users' computers or computer devices in connection with the Products;
and
15.2.5 any claim that the Products infringe upon the rights of any
third party.
16. TERM
16.1 This Agreement shall begin on the Effective Date and shall continue in
effect unless terminated by either party giving ninety (90) days written notice
of such termination to the other party or unless otherwise terminated in
accordance with this Section.
16.2 In the event either party commits a breach of any of its material
obligations under this Agreement, the non-breaching party may give written
notice of such breach to the breaching party. If the breach is not cured within
thirty (30) days after receipt of the notice thereof, the non-breaching party,
at its option, may terminate this Agreement by providing written notice of such
election to the breaching party.
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16.3 Notwithstanding the foregoing, if the Vendor breaches any of its
obligations under Sections 4.3, 8, 9, or 13, SystemsFusion, at its option, may
terminate this Agreement by giving written notice to the Vendor and such
termination shall be effective on the date received by the Vendor.
16.4 Sections 6.4, 7, 8.2, 8.3, 9, 14, 15, and 17 shall survive the
termination or expiration of this Agreement.
17. GENERAL PROVISIONS
17.1 Limitation of Liability. Neither party shall be liable to the other
party for, any incidental, consequential, special, or punitive damages of any
kind or nature, including for the breach of this Agreement or any termination of
this Agreement, whether such liability is asserted on the basis of contract,
tort (including negligence and strict liability) or otherwise, even if the
non-damaged party has been warned of the possibility of such loss or damages.
All remedies hereunder, including for the breach of this Agreement, and all
other remedies provided at law or in equity (and not excluded pursuant to the
foregoing sentence) shall be deemed cumulative and not exclusive.
17.2 Limitations on Actions. No action of any kind arising out of or in
connection with this Agreement may be brought more than one (1) year after the
first to occur of (i) the termination or expiration of this Agreement or (ii)
the event giving rise to such action.
17.3 Notices. Any notice required or permitted by this Agreement shall be
in writing and shall be sent by facsimile or electronic mail (both to be
confirmed by first class mail), or sent by a recognized commercial overnight
courier, or mailed by United States registered or certified mail, return receipt
requested, addressed to the other party as set forth below or to such other
contact, address, facsimile, or electronic mail address as may be provided in
writing by either party hereunder:
Address for notices to SystemsFusion:
SystemsFusion US, Inc.
1735 Technology Drive, Suite 820
San Jose, California 95110
Telephone: (408) 441-9840
Facsimile: (408) 946-5815
Attention: Nevo Hadas
With a copy to:
Paul, Hastings, Janofsky & Walker
345 California Street, 29th Floor
San Francisco, California 94104
Telephone: (415) 835-1616
Facsimile: (415) 217-5333.
Attention: Keith Sutton, Esq.
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Address for notice to the Vendor:
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Address for notice to the Vendor:
17.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California and of the United States of
America, excluding that body of law related to choice of law.
17.5 Force Majeure. Neither party shall be deemed in default of this
Agreement to the extent that performance of its respective obligations or
attempts to cure any breach are delayed or prevented by reason of any act of
God, fire, natural disaster, accident, act of government, shortages of materials
or supplies, or any other cause beyond the reasonable control of such party;
provided, that such party gives the other party written notice within ten (10)
business days of the discovery of such event. Time for performance shall be
extended by the period of the force majeure delay.
17.6 Waiver. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement shall operate as a waiver of any such
right, power, or remedy. No waiver of any provision of this Agreement shall be
effective unless in writing and signed by the party against whom such waiver is
sought to be enforced. Any waiver by either party of any provision of this
Agreement shall not be construed as a waiver of any other provision of this
Agreement, nor shall such waiver operate or be construed as a waiver of such
provision respecting any future event or circumstance.
17.7 Modification. No modification of any provision hereof shall be
effective unless in writing and signed by both of the parties.
17.8 Independent Contractors. Each party agrees that in performing its
duties under this Agreement it shall be operating as an independent contractor.
Nothing contained herein shall in any way constitute an association,
partnership, or joint venture between the parties, nor be construed to evidence
the intention of the parties to establish any such relationship. Neither party
shall have any right, power, or authority to make any representation or to
assume or create any obligation, whether express or implied, on behalf of the
other party, or to bind the other party in any manner whatsoever. Both of the
parties agree, respectively, that they shall not hold themselves out in any
manner that would be contrary to the terms of this sub-section.
17.9 Arbitration. Any dispute or controversy arising between the parties
regarding the terms of this Agreement shall be submitted to binding arbitration
in the city of San Francisco, California pursuant to the rules and procedures of
the American Arbitration Association. All fees and costs concerning the
arbitration, including the arbitrator's fees and expenses and
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attorneys fees and witness fees shall be borne by the parties in the proportion
determined by the arbitrator.
17.10 Assignment. Neither party shall assign this Agreement or delegate any
of its rights or obligations hereunder to any third party without the prior
written consent of the other party; provided, however, that no consent shall be
required in connection with a sale of all or substantially all of the
outstanding stock or all or substantially all of the assets of either party,
whether pursuant to a merger, sale, business combination, or otherwise. Any
attempted or purported assignment or delegation without such required consent
shall be void and a material breach of this Agreement. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of the parties and their
respective successors and permitted assigns.
17.11 Third-Party Beneficiaries. There are no intended third-party
beneficiaries to this Agreement.
17.12 Severability. In the event that any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or otherwise
unenforceable, such provision shall be enforced to the extent possible
consistent with the stated intention of the parties, or, if incapable of such
enforcement, shall be deemed to be deleted from this Agreement and the remainder
of this Agreement shall continue in full force and effect according to its
stated terms and conditions.
17.13 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof and
supersedes all prior and contemporaneous agreements, negotiations, and
understandings between the parties, both oral and written.
17.14 Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original and all of which,
together, shall be deemed to be one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SYSTEMSFUSION US, INC.
By: /s/ Nero Hadas
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Name: Nero Hadas
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Title: Vice President, Marketing
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"VENDOR"
By: /s/ Chris Matteisen
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Name: Chris Mattheisen
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Title: Senior Vice President, Marketing and Sales
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SCHEDULE I
Referral Fees
[INTENTIONALLY OMITTED. SCHEDULE I WILL BE PROVIDED TO THE STAFF UPON REQUEST.]
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EXHIBIT A
List of the Products Available to the ISPs Pursuant to this Agreement
[INTENTIONALLY OMITTED. EXHIBIT A WILL BE PROVIDED TO THE STAFF UPON REQUEST.]
