Exhibit 10.6
EXCLUSIVE SUPPLIER AGREEMENT
This Exclusive Supplier Agreement (the "Agreement") is made and entered
into as of this 10th day of January, 2008 (the "Effective Date"), by and between
Power Prepaid Phone Card Distribution, a California corporation, having its
principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. - ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Customer"), and StarCom Alliance, Inc. having a corporate office at ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Supplier"), with reference to
the following facts:
A. Supplier is a Master Distributor of discount prepaid calling cards,
prepaid and postpaid cellular/wireless products and services, and other
telephony related products and services--STARCOM ALLIANCE PRODUCTS AND SERVICES
(hereinafter "SAPS") that enable users to call anywhere in the world at
significant savings.
B. Customer desires to purchase SAPS from Supplier on the terms and
conditions set forth herein.
Based upon the foregoing, and in consideration of the mutual promises
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Customer and Supplier
(collectively, the "Parties") hereby agree as follows,
1. Term and Renewal. Customer and Supplier agree that for an initial
period of one (1) year from the Effective Date of this Agreement, Customer shall
purchase exclusively from Supplier all SAPS necessary for Customer to sell to
their customer base. During the term of this Agreement, Customer agrees that it
will not purchase SAPS from any vendor, other than Supplier, unless Supplier
consents in writing to such purchase. Upon the expiration of the original term,
this Agreement shall renew automatically for successive renewal terms, each for
a period of one year, unless either Party serves the other Party with written
notice of such Party's intent not to renew the Agreement at least sixty (60)
days prior to the expiration of the then current Term.
2. Compensation.
a. Purchase Price. The purchase price for the SAPS is set
forth on Exhibit "A" attached hereto.
b. Payment Terms. The payment terms for SAPS is set forth on
Exhibit "B" attached hereto.
c. Additional Compensation. Upon the execution of this
Agreement, Customer shall receive 100,000 shares of China Voice Holding
Corp. Rule 144-restricted common stock. Customer shall receive an
additional 10,000 shares of China Voice Holding Corp. Rule
144-restricted common stock for each $1,000,000 of business that
Customer provides to Supplier. Shares will be issued to Customer
quarterly on collected sales receipts.
d. Restriction on Shares. All common shares of China Voice
Holding Corp. described in this Agreement are restricted pursuant to
Rule 144 of The Federal Securities Act of 1933. Pursuant to Rule 144,
such shares are restricted from sale for a period of two (2) years. If
Supplier experiences a "change of control," then Customer has the right
to sell its shares after a one-year holding period.
3. Representations by Customer. Customer agrees that prior to or
concurrently with the execution of this Agreement, it will provide Supplier with
a list of its current suppliers, the respective costs paid to each supplier and
the payment terms of the supplier. Additionally, Customer agrees to facilitate
introductions between Supplier and manufacturers to keep relationships intact.
Failing to provide such information and assistance to Supplier shall be deemed a
material breach of this Agreement.
4. Representations by Supplier. Supplier agrees to provide Customer
with the same or more favorable price and terms as the Customer's existing
suppliers.
5. Market Research Assistance. Customer agrees to assist Supplier in
analyzing the current calling card products and services Customer provided prior
to the execution of this Agreement. This research is to assist Supplier in
maintaining its position as a leader in the industry.
6. Promotional Assistance. Customer agrees to use its best efforts to
promote SAPS, as well as Supplier's recommended products and services. Customer
agrees and grants Supplier a license to use its name in press releases,
marketing materials and website.
7. Confidential Information.
a. At all times during and subsequent to this Agreement,
Customer agrees to keep in the strictest confidence and trust the
Supplier's Confidential Information (as defined at Section 6(c) herein)
to which the Customer has or had access. Customer will not use or
disclose such Company Confidential Information without the written
consent of Supplier, except as may be necessary in the ordinary course
of performing its obligations pursuant to this Agreement. Customer
shall not be required to treat as confidential any information that was
in its possession or was known to Customer prior to receipt from the
Supplier or becomes public knowledge without Customer's fault.
b. Upon termination of this Agreement, for whatever reason,
Customer shall promptly surrender to Supplier all of the Supplier's
Confidential Information in its possession, custody or control, and
will not retain or take any of the Supplier's Confidential Information
in any form.
c. "Confidential Information" of the Supplier shall include,
but not be limited to, business plans, marketing procedures, marketing
programs, suppliers, SAPS costs and payment terms, appointments,
assignments, contracts, breakdowns, plans, photographs, and trade
secrets protected under the law which may not be used by Customer for
any purpose except for performance of its obligations pursuant to this
Agreement.
8. Noncompetition. Customer agrees it will not, directly or indirectly,
during the term of this Agreement engage in any management, employment or
business that is competitive with the Supplier, including, but not limited to,
providing the same or similar services offered by the Supplier during Customer's
relationship with the Supplier, within any geographic region of the United
States in which the Company offers services.
9. Permits and Approvals. Customer acknowledges that it has procured
all necessary permits, licenses, consents, and approvals in connection with the
purchase and sale of SAPS.
10. Warranty. Supplier does not warrant that the operation of SAPS will
be error free. However, Supplier will use reasonable efforts to correct any
Manufacturer defects reported by Customer in writing or by verbal notification
to Supplier following the date of shipment. THIS PROVISION CONSTITUTES
SUPPLIER'S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY
FOR DEFECTIVE OR NON-CONFORMING SOFTWARE AND IS IN LIEU OF ANY OTHER WARRANTY,
EXPRESS, IMPLIED OR STATUTORY INCLUDING THE WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
11. Delivery and Risk of Loss.
a. Date of Delivery. Delivery of the SAPS shall be deemed
complete when Customer acknowledges receipt of the SAPS by signature at
time of delivery. Risk of loss for, the SAPS under this Agreement shall
pass to Customer upon delivery as defined herein.
b. Security Interest. As security for the full and prompt
payment and performance when due of all obligations of Customer to
Supplier under this Agreement, Customer hereby grants to Supplier a
security interest in all SAPS supplied to Customer hereunder. Customer
shall execute any notice or other documentation as may be reasonably
requested by Supplier at any time in order to accomplish the intentions
of this section. This obligation shall include an obligation to execute
any and all necessary financing statements to perfect the security
interest herein granted to Supplier as well as its ownership interest,
if any, herein evidenced in order to perfect Supplier's interest in the
SAPS and its rights to payment and performance by Customer under this
Agreement. Supplier shall pay all expenses of filing any necessary
financial statements and documents with the appropriate public offices.
c. Supply. Customer hereby acknowledges and agrees that
Supplier has not made and makes no representations of any kind or
nature concerning the availability of Manufacturer products and
services. Supplier shall not be deemed in breach of this Agreement or
liable for any failure or delay in its performance under this Agreement
if such failure or delay is due in whole or part to act of God, war,
riot, act of terrorism, government action, fire, explosion, accident,
flood, storm, mechanical breakdown, failure of power, civil
disturbance, labor trouble, acts or omissions of Carriers, other
contractors, vendors or Manufacturers of SAPS or any other circumstance
beyond the reasonable control of Supplier.
d. Past Due Payment. Any payment received by Supplier on or
after the Due Date shall be subject to an interest charge on delinquent
amounts at the rate of 1.50% of the late payment per month or the
maximum lawful rate allowable under applicable state law, whichever is
lower. Such interest charge shall be applied on any late payments,
commencing upon the Past Due Date through the actual date of receipt of
payment. Any and all applicable national, federal, state and local
taxes, including, without limitation, all use, sales, value-added,
surcharges, excise, franchise, property, commercial, gross receipts,
license, privilege or other similar taxes, levies, surcharges, duties,
fees, or other tax-related surcharges whether charged to or against
SAPS or Supplier, with respect to the services or underlying facilities
provided by Supplier, as well as any other imposition by any
governmental authority which has the effect of increasing Supplier's
cost of providing the services or the underlying facilities, shall be
payable by the Customer in addition to the other charges set forth in
this Agreement. If full payment is not made when due, the Supplier, in
its sole discretion, shall have the right, after giving written notice
to the Customer, to suspend all or any part of the delivery of SAPS
until such time as the Customer owing money has paid all unpaid
balances (including interest). Furthermore, the Customer acknowledges
that it may not withhold any sums invoiced by the Supplier for any
reason except documented shortages.
12. Indemnification. Customer specifically agrees to indemnify and hold
Supplier harmless from all liability and costs arising from Customer and its
contractors, subcontractors, buyers and employees for consequential, incidental,
indirect or special damages, including, without limitation, loss of anticipated
revenues or profits or damages resulting from claims brought by its contractors,
subcontractors, buyers and employees or other third parties against the
Supplier.
13. Cancellation and Termination.
a. Breach of Agreement. In the event that either Party
breaches any provision of this Agreement, and fails to cure such breach
within thirty (30) days after written notice from the other Party, the
breaching Party shall be in default.
b. Liability of Customer. If Customer breaches this Agreement
and fails to cure such breach during the first 90 day period, then
Customer shall forfeit all shares of China Voice Holding Corp. common
stock that was provided to Customer pursuant to this Agreement. All
shares that are earned for obtaining sales revenues represented within
this document shall not be forfeited.
14. Sale or Cessation of Customer's Business; Change in Control. In the
event of a liquidation or other cessation of Customer's business (without sale
or transfer of the business), Customer shall give Supplier at least one (1)
month of prior written notice of its intention to discontinue its business. In
the event of a Change of Control, Customer agrees that it will cause the
transferee of the business to assume Customer's obligations under this Agreement
and no such transfer or assignment shall operate to release Customer from
Customer's obligations under this Agreement without the prior written consent of
Supplier in Supplier's sole and absolute discretion.
For purposes of this Agreement, a "Change in Control" of Supplier or Customer
means any one of the following events:
a. The acquisition, at any time during any term of this
Agreement, by any person, group, or entity of beneficial ownership of
50% or more of the outstanding shares of common stock or the combined
voting power of the Supplier's or Customer's then outstanding voting
securities entitled to vote generally in election of directors; or
b. All or any of the individuals who, as the first business
day following signature of this Agreement by all parties, constitute
the full Board of Directors (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any persona becoming a director subsequent to this Agreement whose
election, or nomination for election by the Supplier's or Customer's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be, for purposes of
this Agreement, considered as though such person were a member of the
Incumbent Board; or
c. Approval by the shareholders of the Supplier's or Customer
of (i) a reorganization, merger, or consolidation with respect to which
persons who were the shareholders of Supplier's or Customer immediately
prior to such reorganization thereafter, own more than 50% of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated Supplier's or
Customer's then outstanding voting securities; (ii) a liquidation or
dissolution of Supplier or Customer; or (iii) the sale of all or
substantially all of the assets of Supplier or Customer, unless the
approved reorganization, merger, consolidation, liquidation,
dissolution or sale is subsequently abandoned.
Failure to comply with this Section 14 shall constitute a material
breach of this Agreement by Customer.
15. Assignment. Customer shall not assign this Agreement in whole or in
part without the prior written consent of Supplier. It shall not be considered
an "assignment" if Customer applies the Agreement to wholly owned subsidiaries,
or, to other ventures in which they remain the controlling entity, provided,
however that the forgoing shall not release Customer from or affect Customer's
obligations under this Agreement.
16. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire
agreement between Customer and Supplier with respect to the subject
matter hereof and there are no representations, understandings or
agreements which are not fully expressed in this Agreement.
b. Cooperation. The Parties acknowledge and agree that
successful completion of this Agreement shall require the full and
mutual good faith cooperation of each of the Parties.
c. Attachments and Exhibits. All Attachments and Exhibits
annexed to this Agreement are expressly made a part of this Agreement
as fully as though completely set forth in it. All references to this
Agreement shall be deemed to refer to and include this Agreement and
all such Attachments and Exhibits.
d. Amendments. No amendment, change, waiver, or discharge
hereof shall be valid unless in writing and signed by the Party against
which such amendment, change, waiver, or discharge is sought to be
enforced.
e. Florida Law; Exclusive Jurisdiction; and Venue. This
Agreement shall be governed in all respects by the laws of the State of
Florida without regard to its conflict of laws provisions, and Customer
and Supplier agree that the sole and exclusive venue and jurisdiction
for disputes arising from this Agreement shall be the appropriate state
or federal court located within Palm Beach County, Florida, and
Customer and Supplier hereby submit to the venue and jurisdiction of
such courts.
f. Notice. Any notice provided pursuant to this Agreement, if
specified to be in writing, shall be in writing and shall be deemed
given (i) if by hand delivery, upon receipt thereof, (ii) if by mail,
three (3) business days after deposit in the United States mails,
postage prepaid, certified mail, return receipt requested, (iii) if by
facsimile transmission, upon electronic confirmation thereof, (iv) if
by electronic mail (e-mail), upon electronic confirmation thereof or
(v) if by next day delivery service, upon such delivery. All notices
shall be addressed as follows (or such other address as either Party
may in the future specify in writing to the other):
In the case of Supplier: In the case of Customer:
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, President Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
StarCom Alliance, Inc. Power Prepaid Phone Card Dist.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. - Suite 209
Boca Raton, FL 33432 ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Email: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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g. Waiver. The wavier or failure of either Party to exercise
any right in any respect provided for herein shall not be deemed a
waiver of any further right hereunder.
h. Interpretations. All references to "Business Days" shall
mean all days excluding Saturdays, Sundays and legal holidays. All
references to the masculine, feminine, neuter or singular shall also
refer to the masculine, feminine, neuter or plural, where applicable.
i. Severability. If any section, portion, provision,
paragraph, clause, sentence, language or word of this Agreement is
determined to be invalid, illegal, void, voidable or unenforceable for
any reason whatsoever, this Agreement shall be read as if it did not
contain such section, portion, provision, paragraph, clause, sentence,
language or word, it is to that extent to be deemed omitted, and the
balance of this Agreement shall remain enforceable.
j. Counterparts. This Agreement may be executed in several
counterparts, including by means of facsimile signatures, all of which
taken together shall constitute the entire agreement between the
Parties hereto.
k. Headings. The section headings used herein are for
reference and convenience only and shall not enter into the
interpretation hereof.
l. Approvals and Similar Actions. Unless otherwise provided
herein, where agreement, approval, acceptance, consent or similar
action by either Party hereto is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld.
m. Attorneys' Fees. Each Party hereto shall be responsible for
and shall pay for their own costs and attorneys' fees. Notwithstanding
the foregoing, if either Party brings any action or proceeding,
subsequent to the execution of this Agreement, to interpret or enforce
any provision hereof, the prevailing Party shall be entitled to
reasonable fees and costs, including attorneys' fees.
n. Further Documents. Each Party agrees to perform any further
acts and to execute and deliver any additional documents which may be
reasonably necessary to effectuate the provisions of this Agreement.
CUSTOMER: SUPPLIER:
POWER PREPAID PHONE CARD STARCOM ALLIANCE, INC.
DISTRIBUTION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President Title: President