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EXHIBIT NO. 6.12
CO-MARKETING AGREEMENT BETWEEN INTEGRATED
SYSTEMS INTERNATIONAL, INC. AND ACCESS POWER, INC.
DATED APRIL 28, 2000.
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ACCESS POWER, INC. & INTEGRATED SYSTEMS INTERNATIONAL, INC.
CO-MARKETING AGREEMENT
THIS AGREEMENT is made as of this 28th day of April 2000, by and between
ACCESS POWER, INC., a Florida corporation located at 10033 Sawgrass Drive West,
suite 100, Ponte Vedra Beach, Florida 32082 ("Access Power"); and
INTEGRATED SYSTEMS INTERNATIONAL, Inc., located at 570 Lexington Ave. 45 Fl, New
York, New York 10022 (Integrated Systems).
WHEREAS, Access Power sells certain Internet Telephony services and
products, including those listed in Exhibit A (this Agreement pertains
only to products and/or services as listed in Exhibit A and not to any
other products and/or services provided by Access Power); and
WHEREAS, Integrated Systems sells and distributes proprietary internet
related software, including those listed in Exhibit B and desires to be
compensated for Revenue Collected from customers generated directly
from this agreement on behalf of Access Power; and
WHEREAS, Access Power and Integrated Systems desires to expand and
strengthen the Internet, communications, and multimedia related
businesses of both companies,
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
AGREEMENT - unless otherwise clearly stated herein, refers to this
co-marketing Agreement.
ACCESS POWER CUSTOMER(S) - As used herein, this means any customer of
Access Power who signed up for service having been referred to Access
Power via Integrated Systems through either a web link from the
Integrated Systems software or another agreed upon, in writing,
referral mechanism.
REVENUE COLLECTED - Any amounts which Access Power collects for
products sold and/or services delivered (as specified in Exhibit A) to
Access Power Customers.
2. INTEGRATED SYSTEMS SERVICES
Integrated Systems shall be responsible for their proprietary software
listed in Exhibit B and the marketing and distribution of such
software. Integrated Systems will include the Free Net.Caller service
in all approved software distributions, allow for automatic
registration of service, and promote other Net.Caller services. The
software in Exhibit B may also change from time to time based upon
written agreements between Access Power and Integrated Systems.
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Integrated Systems can place advertisements within their software to
promote Access Power products and services. Integrated Systems shall
either use website-advertising materials prepared by Access Power or
advertising materials, which have been approved for use by Access
Power.
Access Power will not be required to service Integrated Systems
customers concerning Integrated Systems software.
3. ACCESS POWER SERVICES
Access Power will identify and track customers who were referred to
Access Power by Integrated Systems, and provide commissions to
Integrated Systems as a result of purchases by such customers in
accordance with the commission schedule which is attached as Exhibit A.
Exhibit A may change from time to time with the introduction of
additional Access Power products and/or services. The commission
amounts in Exhibit A may also change from time to time based upon
written agreements between Access Power and Integrated Systems.
Access Power shall maintain adequate facilities to provide after sale
service to the purchasers of the products and services sold. Integrated
Systems will not be required to service Access Power customers
concerning their Access Power purchases.
4. TERM
The initial term of this Agreement shall be for one year beginning on
the date first written above. It shall renew automatically for
consecutive one-year periods for as long as neither party provides
notice of non-renewal to the other party at least 30 days prior to the
anniversary date of the Agreement.
5. TERMINATION
Either party may cancel this Agreement for any reason upon 60 days
written notice to the other party.
In the event Integrated Systems cancels the Agreement, their rights to
receive payments hereunder are terminated ninety (90) days after the
date established by its cancellation notice.
In the event Access Power cancels the Agreement, Integrated Systems
will continue to receive commission payments in accordance with the
terms of this Agreement until what would have been the next automatic
renewal date.
Upon termination of the agreement, each party shall cease to use any
trade names, trademarks, or promotional items provided by the other
party. In addition, Integrated Systems shall cease all of its marketing
activities for Access Power products and services, unless otherwise
agreed upon in writing.
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6. COMPENSATION
Access Power will pay Integrated Systems commissions, in accordance
with exhibit A, by the 20th of each month in an amount determined based
upon Revenue Collected for the prior month.
All references herein to dollars, cents, costs, or monetary amounts
shall be in U.S. Currency.
7. ADVERTISING AND TRADEMARKS
Neither party shall contest the other party's trademarks or trade names
or do anything that would jeopardize or diminish their value or the
owning party's rights thereto, including the registration of any
trademark or trade name that is confusingly similar to or otherwise
incorporate the other party's trademarks or trade names.
Integrated Systems is authorized by Access Power, during the term of
this Agreement, to use trademarks, trade names, logos and designations
that Access Power uses for products and services to identify such
products and services in connection with Integrated Systems
advertisement and promotion of such products and services.
Integrated Systems gains no rights or ownership in and shall take all
reasonable steps to protect the trademarks and other intellectual
property rights of Access Power.
Access Power gains no rights or ownership in and shall take all
reasonable steps to protect the trademarks and other intellectual
property rights of Integrated Systems.
8. PRODUCTS AND SERVICES AVAILABILITY AND PRICING
Access Power may make such changes in the design, production, content
and/or pricing of the products and services as Access Power decides.
Access Power, at any time, may remove a product and/or service from
availability for further purchase. Access Power will provide notice to
Integrated Systems of any change in availability of products and/or
services.
Access Power and Integrated Systems may from time to time agree, in a
signed, written agreement, to certain promotional arrangements
providing Access Power Customers with unique pricing in terms of
products and/or services.
9. CONFIDENTIALITY
Integrated Systems and Access Power recognizes and agrees that the
terms of this Agreement and any information furnished by Integrated
Systems or Access Power under this Agreement, with the exception of
information previously disclosed to the public, shall be considered
confidential and shall not be used for competitive purposes, nor
disclosed to third parties by Integrated Systems, except to the extent
that: (a) such information is required to be disclosed in carrying out
this
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Agreement; or (b) is required to be disclosed to appropriate
governmental or regulatory authorities or in a judicial proceeding.
10. DISPUTE RESOLUTION
Any disputes arising out of this Agreement shall be arbitrated under
the rules established by the American Arbitration Association before a
single arbiter. The decision of the arbiter shall be final and may be
entered as a judgment by either party in any competent court of law.
11. PROPRIETARY INFORMATION
The Free Net.Caller service includes the use of client software
(Software). This Software contains proprietary technology. No ownership
or title to the Software is granted to Integrated Systems or the
customers thereof. The software shall at all times be distributed in a
manner that includes the Software License Agreement and each user of
the software must agree to its terms. Under no circumstances is this
Agreement to be interpreted as a sale or rental of the software. In
addition, Integrated Systems agrees not to sell, use or market in any
way the Software to incur revenue.
12. INDEMNIFICATION AND WARRANTIES
Each party agrees to conduct business in a manner that reflects
favorably at all times on products, services and the good name, good
will and reputation of the other party and avoid activities or
practices which are or might be detrimental to such party.
Integrated Systems agrees to indemnify Access Power (including paying
all reasonable attorneys fees and costs of litigation) against and hold
Access Power harmless from any and all claims by another party
resulting from Integrated Systems acts, omissions or
misrepresentations, regardless of the form of action.
Access Power agrees to indemnify Integrated Systems (including paying
all reasonable attorneys fees and costs of litigation) against and hold
Integrated Systems harmless from any and all claims by another party
resulting from Access Power's acts, omissions or misrepresentations,
regardless of the form of action.
Each party agrees to indemnify the other party against any and all
claims by it for incidental, consequential, indirect, or special
damages of any nature, including, without limitation, lost business
profits or opportunities.
Neither party shall be liable to the other for damages caused which
result from events beyond its control, including, but not limited to,
governmental order or regulation (unless such event occurs as a result
of an actions of such party or subsidiaries), war, terrorism, inability
to acquire or access third party services, fire, flood, earthquake,
hurricane, or tornado.
Access Power makes no warranties or representations as to the
performance of the products or services to Integrated Systems or to any
other person. To the extent
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permitted by applicable law, all implied warranties are hereby excluded
by Access Power.
13. NOTICES
Except as otherwise provided in this Agreement, all notices required
under this Agreement shall be sent by certified or registered mail,
overnight courier, or hand delivery, and shall be addressed as
specified below:
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IF TO ACCESS POWER IF TO INTEGRATED SYSTEMS INTERNATIONAL
Access Power Integrated Systems International
Suite 100 570 Lexington Ave, 45 Fl
10033 Sawgrass Drive West New York
Ponte Vedra Beach, FL 32082 New York 10022
Attn: Chief Operating Officer Attn: Terrence Tierney
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Changes in these addresses shall be valid if notice of such change is
given in writing to the other parties pursuant to this paragraph.
14. GENERAL PROVISIONS
This Agreement, inclusive of the Exhibit(s) hereto and any document(s)
incorporated by specific reference, constitutes the entire Agreement
between the parties as to the subject matter hereof. No amendment or
modification of this Agreement will be valid unless set forth in
writing referencing this Agreement and executed by an authorized
representative of each party.
In the event that any provision of this Agreement is held unenforceable
by a court or tribunal of competent jurisdiction, such provision will
be enforced to the maximum extent permissible and the remaining
portions of this Agreement shall remain in full force and effect.
The failure by either party on any occasion to enforce any provision of
this Agreement will in no way prevent the enforcement of that provision
or any provision on any future occasion.
Nothing contained herein shall be deemed to constitute a partnership,
agency, joint venture or employer/employee relationship between the
parties hereto, and the common enterprise of the parties shall be
limited to the express provisions of this Agreement.
Neither party is authorized or empowered to create any contract or
obligation on behalf of, binding upon, or in the name of the other
party, unless the other party specifically consents thereto in writing.
Neither party shall transfer or assign this Agreement or any part
hereof without the other party's prior written consent.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Florida.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year below written.
ACCESS POWER INTEGRATED SYSTEMS INTERNATIONAL
/s/ Douglas Bottomley
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Douglas Bottomley, Senior Vice President Tierrence Tierney, President
4/28/00
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Date Date
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ACCESS POWER, INC. & INTEGRATED SYSTEMS INTERNATIONAL, INC.
CO-MARKETING AGREEMENT
EXHIBIT A
COMMISSION COMPENSATION SCHEDULE
Dated: April 28, 2000
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Net.Caller Services:
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Free 25 minute Net.Caller 0% of Revenue Collected
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Net.Caller, North American Plan and 10% of Monthly Revenue Collected between $1 and
Net.Caller European Plus $499,999
12% of Monthly Revenue Collected between
$500,000 and $999,999
14% of Monthly Revenue Collected between
$1,000,000 and $1,999,999
15% of Monthly Revenue Collected over
$2,000,000
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This exhibit is an attachment to the Access Power & Integrated Systems
Co-marketing Agreement dated April 28 2000.
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EXHIBIT B
Integrated System Software / Applications
Dated: April 28, 2000
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SOFTWARE:
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ISys Web Console Interface
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This exhibit is an attachment to the Access Power & Integrated Systems
Co-marketing Agreement dated April 28, 2000.
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