EXHIBIT 10(JJ)
I-LINK WORLDWIDE INC.
WEALTHNET INCORPORATED
STRATEGIC MEMBER RESELLER AGREEMENT
THIS STRATEGIC MEMBER RESELLER AGREEMENT is made and entered into this 31st
day of January, 1997, to be effective as of the 1st day of January, by and
between I-LINK WORLDWIDE INC. ("I-Link"), a Utah corporation located at ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and WEALTHNET INCORPORATED
("WealthNet"), a Utah corporation located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, I-Link is a provider of telecommunications services (the
"Services") and products (the "Products"); and
WHEREAS, WealthNet is an organization that seeks to provide various
services and products to people who join its organization as members (the
"Members"); and
WHEREAS, WealthNet desires to secure the right to market and sell to its
Members I-Link's Services and Products; and
WHEREAS, I-Link is willing to appoint WealthNet a Strategic Member Reseller
for such purpose upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. LICENSE AND APPOINTMENT. Subject to the terms and conditions herein set
forth, I-Link hereby grants WealthNet the non-exclusive right and license
to market and sell, as an authorized Strategic Member Reseller the I-Link
Services and Products.
2. DIVISION OF RESPONSIBILITIES. WealthNet shall provide all data entry
services and shall timely provide the same to I-Link. I-Link shall provide
all provisioning, tariffing, negotiating and securing LEC agreements,
billing and collection services, status tracking, accounting and reporting,
and, at the expense of WealthNet as set forth below, customer service and
support. I-Link shall dedicate and train a team of its employees to
uniquely work with WealthNet and its Members on all issues of provisioning,
customer service, billing and collecting (the "I-Link WealthCom Team"). To
cover these services, I-Link shall be entitled to receive the sum of $2.00
per month per provisioned Member (the "MRC Fee") from the monthly recurring
charge that will be billed to each Member on behalf of WealthNet. The
staffing, performance and quality of the I-Link WealthCom Team shall be
reviewed on a monthly basis by the parties. As the number of Members
grows, additional I-Link personnel and resources shall be added to the I-
Link WealthCom Team as reasonably required to adequately perform the
WealthCom services. WealthNet shall, at its expense, designate one of its
employees as a supervisor to work with the I-Link WealthCom Team, and I-
Link shall make office facilities
available to such supervisor. In order to facilitate "real-time"
communication between the I-Link WealthCom Team and WealthNet, I-Link
shall, at WealthNet's expense and subject to WealthNet's approval, install
and maintain a high-speed telecommunications line linking I-Link and
WealthNet. The parties shall agree upon mutually acceptable policies and
procedures relating to billing adjustments.
3. TERMS AND CONDITIONS OF SALE. It is agreed that I-Link shall sell the
Services and Products to WealthNet solely upon the following terms and
conditions:
3.1 SERVICE RATES/PRODUCT PRICES. I-Link shall sell to WealthNet its
Services and Products at the rates and prices set forth on Exhibit 3.1
attached hereto and made a part of this Agreement. In the event I-Link
deems it necessary to increase the rates and/or prices set forth on
Exhibit 3.1, I-Link shall provide WealthNet written notice of such
intended price increase. During the ninety (90) day period following
such written notice, I-Link and WealthNet shall negotiate new rates
and/or pricing. In the event the parties shall be unable to reach
agreement on the new rates and/or pricing at the end of such ninety
(90) day period, each party shall have the right to terminate this
Agreement.
3.2 RESALE OF SERVICES AND PRODUCTS. WealthNet shall be free to determine
the price, terms, and conditions of sale surrounding the resale of the
Services and Products to WealthNet's Members, provided that WealthNet
shall not undertake any activities that would result in harmful
pricing practices to the market.
3.3 APPLICATIONS FOR SERVICES AND PRODUCTS. WealthNet shall submit
Applications for Services and/or Products ("Applications") to I-Link
for the Services and Products needed for WealthNet's Members. All
Applications for Services and Products shall be sent by electronic
transmission, fax or mail directly to I-Link, and shall include all
relevant information necessary to process the Application and
provision the Member. Applications shall be subject to acceptance by
I-Link and shall not be binding on I-Link until so accepted. I-Link
shall have the right to reject the provision of Services and/or
Products to any Member that fails to meet I-Link's established written
creditworthiness requirements provided to WealthNet. Notwithstanding
the exclusivity provisions contained in Section 5 below, WealthNet
shall be permitted to provision any Member whose Application is
rejected by I-Link with another long-distance carrier. In the event
of a conflict between the terms of this Agreement and any Application
submitted to I-Link, the terms of this Agreement shall govern.
3.4 SHIPMENT OF PRODUCTS. All Products shall be sold to WealthNet F.O.B. I
Link's facility and shall be shipped directly to WealthNet's Members,
as designated in the purchase orders. Upon the placement of the
Products with a common carrier,
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the title and all risk shall pass to WealthNet. WealthNet acknowledges
that it is the Members' responsibility to pay to I-Link all and any
tariffs, taxes, duties, levies, and any other fee or charge associated
with the transportation of the Products. Although the Members shall
pay to I-Link for all costs associated with the transportation and
insurance of the Products, I-Link shall arrange for such
transportation and insurance of the Products. I-Link shall, at the
Members' expense, take such steps as may be required to satisfy any
laws or requirements with respect to declaring, filing, recording, or
otherwise rendering this Agreement valid.
3.5 INVOICING AND COLLECTION. WealthNet shall require each of the Members
to secure payment for Services and Products by means of a credit card
authorization, automatic bank account withdrawal authorization, and/or
a cash deposit in an amount to be determined by the parties. I-Link
shall invoice and collect payment from the Members purchasing the
Services and Products. All invoices sent by I-Link to the Members for
Services and Products shall be due net twenty (20) days from the date
of invoice. Unpaid invoices over twenty (20) days may be assessed a
late fee equal to 1.5% per month (18% APR). Invoices unpaid after
thirty (30) days may be submitted for collection seven (7) days after
notice to the Member, and I-Link may terminate a Member's subscription
in accordance with the provisions governing termination in the Member
subscription agreement. Members shall be responsible for any costs
incurred by I-Link in collecting any amount payable, including costs
of court and reasonable attorneys' fees. Notwithstanding the
exclusivity provisions contained in Section 5 below, WealthNet shall
be permitted to provision any Member terminated by I-Link with another
long-distance carrier.
3.6 ALLOCATION OF MEMBER REVENUES. All revenues collected from the Members
arising from the Services and Products shall be paid into a lock-box
account maintained by a third-party financial institution acceptable
by both parties (the "Bank"). The parties shall jointly instruct and
authorize the Bank to make disbursements from the lock-box account as
often as practicable based upon billing cycles and collections
received. All such disbursements shall be made according to the
following allocation:
(a) to I-Link in the amount of all amounts payable for taxes to
local, state and federal authorities arising from the collected
Member revenues, and any PIC fees arising under Section 4 below,
(b) the balance according to the Schedules set forth in Exhibit
3.6(b) attached hereto and made a part of this Agreement.
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In the event I-Link is required either (i) as a result of non-payment
by Members of accounts receivable in a timely manner, or (ii) by an
independent third-party provider (such as, but not limited to, MCI) to
direct the collection and disbursement of Member revenues through a
factoring provider or other collection facilitator (a "Collector"), I-
Link shall cause such Collector to distribute directly to WealthNet,
at such times as funds are distributable from the Collector to I-Link,
the portions payable to WealthNet set forth above, subject to the
percentage discount payable to such Collector on a pro-rata basis.
3.7 CHANGES OR DISCONTINUANCE. I-Link reserves the right during the term
of this Agreement either to vary or to discontinue the production,
sale, or distribution of any of its Services or Products upon ninety
(90) days prior written notice to WealthNet. During such ninety (90)
day notice period, WealthNet shall be entitled to terminate the
Agreement if the variance or discontinuation of the production, sale
or distribution of the Service or Product constitutes a material
alteration of the Services and/or Products. I-Link shall incur no
liability to WealthNet or the Members by reason of any such change
and/or termination.
3.8 LONG-DISTANCE CARRIER. I-Link shall be entitled to provide its
Services to the Members by means of whichever long-distance carrier or
carriers as it shall determine are best suited for the provision of
its Services; provided, however, that I-Link shall comply with all
applicable federal and state regulations governing the establishment
or switching of long-distance carrier service when and where required.
3.9 MEMBER COMMUNICATIONS. Because of WealthNet's status as a member
organization, and because of I-Link's designation as the Members'
long-distance carrier, both WealthNet and I-Link shall be entitled to
make use of all lists of Members and to communicate with Members with
respect to the Services and Products, both during the term of this
Agreement and thereafter; however, it is agreed that during the
duration of this Agreement all primary communications with the Members
shall be either through the I-Link WealthCom Team or WealthNet and any
communication with the Members by I-Link during the term of this
Agreement shall be limited to the fulfillment of I-Link's
responsibilities under this Agreement.
4. PROVISIONING. I-Link shall use all diligence to provision the Members in a
timely manner. I-Link shall provide WealthNet real-time access to all
provisioning status information. Attached to this Agreement as Exhibit 4
is a listing of the geographic areas the parties agree I-Link (through FTI
Communications, Inc.) is currently unable to adequately provision Members.
Until such time as I-Link is able to provision within a given Exhibit 4
geographic area, WealthNet shall be permitted to provision Members
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within such non-provisionable Exhibit 4 geographic area with other long-
distance carriers. At such time as I-Link is able to adequately provision
Members within a given Exhibit 4 geographic area, WealthNet shall no longer
provision new Members with other carriers within such area, and shall cause
all Members provisioned with other carriers within such area to be re-
provisioned to I-Link or its designated long-distance carrier. At such time
as I-Link's proprietary telecommunications network (the "I-Link Network")
is operational, the Members shall bear the cost and be invoiced for any PIC
fees required to be paid in switching the Members from the then current
long-distance carrier to the I-Link Network.
5. EXCLUSIVITY. Other than as provided in Section 4 above, for a period of
one (1) year from the date of this Agreement WealthNet shall cause all of
its Members utilizing a long-distance carrier through WealthNet/WealthCom
to be provisioned with I-Link or its designated long-distance carrier. If,
during this one-year exclusivity period, I-Link is unable to provision any
Member within four (4) weeks from the date of initial submission to I-Link
of the Member Application, WealthNet shall be entitled to provision such
Member with another long-distance carrier, regardless of the geographic
area. Except as provided above, during the exclusivity period, WealthNet
shall not cause any of the Members to be diverted to another long-distance
carrier.
6. MARKETING AND PROMOTION. During the 1-year exclusivity period, WealthNet
shall use reasonable and good faith efforts to promote and market the
Services to its Members and solicit Members as subscribers for the Services
and Products. WealthNet shall at all times identify I-Link (or its
designated long-distance carrier) as the service provider with respect to
the Members utilizing the Services. WealthNet shall use only I-Link
approved subscription agreements and forms, and enrollment or activation
procedures in soliciting Member Applications. WealthNet shall offer the
Services and Products only to those Members who meet I-Link written
creditworthiness requirements. WealthNet shall take all reasonable steps to
confirm the accuracy of information obtained from Members pursuant to such
forms and procedures. WealthNet shall have no right, power, or authority
to make any representations or warranties regarding the Services and
Products except as expressly approved by I-Link.
7. BUSINESS CONDUCT. In all dealings related to this Agreement and the
providing, marketing and sale to the Members of the Services and Products,
the parties and their principals, employees and Members shall be governed
by the highest standards of honesty, integrity, fair dealing, and ethical
conduct. The parties and their principals, employees and Members shall not
engage in any form of business practice or advertising that is unethical or
inconsistent with high community standards or that would reflect negatively
upon the other party or the Services and Products. Conduct amounting to a
breach hereof includes, but is not limited to: (i) business practices,
promotions, and advertising which may be injurious to the business goodwill
of the other party, (ii)
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falsification of any business records, or (iii) misrepresentations to the
other party or to any actual or potential subscriber. Each party shall be
fully responsible for all acts and omissions of its principals, employees
and Members, and shall require that such persons comply with all terms of
this Agreement. A breach by any of either party's principals or employees
of any of the terms of this Agreement shall be considered a breach by that
party and shall entitle the other party to pursue all such rights and
remedies it may have under the Agreement or under the law. A breach by any
Member of the terms of this Agreement such that the damage to I-Link
resulting from such breach cannot adequately be remedied within a sixty
(60) day cure period shall be considered a breach by WealthNet and shall
entitle I-Link to pursue all such rights and remedies it may have under
Section 12 of the Agreement. I-Link shall have the right to terminate the
subscription of any Member who materially breaches any term of this
Agreement. Each party shall promptly report to the other party in writing
all violations of the Agreement by any of its principals, employees or
Members.
8. CONFIDENTIALITY. As used in this Agreement, "Confidential Information"
means all information, not generally known to the public, that relates to
the business, technology, subscribers, finances, plans, proposals, or
practices of I-Link or WealthNet, respectively, and it includes, without
limitation, the identities of all subscribers and prospects, all business
plans and proposals, all marketing plans and proposals, all technical plans
and proposals, all research and development, all budgets and projections,
all non-public financial information, and all information I-Link or
WealthNet designates as "confidential." All Confidential Information will
be considered trade secrets of I-Link and WealthNet, respectively, and
shall be entitled to all protections given by law to trade secrets.
"Confidential Information" shall apply to every form in which information
shall exist, whether written, film, tape, computer disk, or other form of
media. The parties covenant and agree that, both during the term of this
Agreement and at all times thereafter, each of them and their principals
and employees and any successor entity, shall not use or disclose to any
person, firm, corporation or other business entity any Confidential
Information of the other, shall not in any other way publicly or privately
disseminate any Confidential Information of the other, and shall not help
anyone else to do any of these things. Upon termination of this Agreement,
all Confidential Information of the other party in the possession of a
party, its principals or employees or any successor entity (originals and
all copies) shall be promptly returned to the other party. Each party shall
be responsible for ensuring compliance with this paragraph by its
principals, employees and agents.
9. RECORDS. Both parties agree to maintain at their principal place of
business, for four years or for the period legally required from the date
of their preparation, whichever is longer, complete and accurate records of
their business conducted pursuant to this Agreement. Upon reasonable
notice, I-Link shall be entitled to full access to all records
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of WealthNet, and WealthNet shall be entitled to full access to all records
of I-Link pertaining to the Services and Products provided to the Members.
10. SERVICE MARKS, TRADEMARKS AND TRADENAMES. I-Link shall immediately cause
FTI Communications, Inc. ("FTI") to amend all federal and state tariff and
long-distance carrier applications and filings it has made to change the
name "WealthCom" to another name not incorporating the word "Wealth." Upon
completion and effectiveness of these amendments, I-Link shall cause FTI to
assign to WealthNet all d/b/a filings of the name "WealthCom", together
with all state and/or federal trademark/tradename/service name applications
and registrations. It is the intent of the parties that once the name
"WealthCom" becomes disassociated with FTI by virtue of the amendment of
federal and state tariff and long-distance applications and filings, the
name and ▇▇▇▇ "WealthCom" shall be wholly owned and controlled by
WealthNet. Subject to the foregoing, the parties understand and
acknowledge that the rights to use all service marks, trademarks and trade
names of each party (collectively, the "Marks") are the property of that
party, and the other party shall not use any of the other party's Marks
without the other party's specific prior written approval. Each party
shall comply with all rules and procedures pertaining to use of the other
party's Marks. Any unauthorized use of the Marks of one party, by the
other party or its principals or employees, shall constitute infringement
of the first party's rights and shall constitute a material breach of this
Agreement. Each party acknowledges that it has no rights in or to the
Marks of the other party except as provided herein and shall not acquire
any rights in the other party's Marks or expectancy to their use as a
result of any use of the Marks. Following the termination of this
Agreement, each party shall immediately discontinue use of any of the other
party's Marks.
11. DEFAULT. The following events and occurrences shall constitute "defaults"
of this Agreement:
(a) Any material breach by either party of this Agreement which is not
fully cured within sixty (60) days after written notice of default is
sent by the other party.
(b) The conviction or a plea of guilty or nolo contendere to any felony
offense or to any misdemeanor offense involving dishonesty,
embezzlement or theft by either party or their respective executive
officers; or
(c) Subject to a ninety (90) day cure period, the insolvency of either
party, either party becoming the subject of a petition in bankruptcy,
the appointment of a receiver for either party's business, or the
entry by either party into any arrangement with or assignment for the
benefit of creditors.
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12. TERM AND TERMINATION. Subject to the termination of the exclusivity
obligation as provided in Section 5 above, this Agreement shall remain in
force for a three (3) year term commencing as of the date stated on the
first page of this Agreement, unless sooner terminated under the terms
herein. The Agreement shall automatically renew for additional one-year
terms unless either party gives the other party written notice of its
intent not to renew at least One Hundred Twenty (120) days prior to the
termination of the then current term. In the event of a default (as
defined in Section 11 above) by a party, this Agreement may be immediately
terminated by the non-defaulting party upon the sending of a written notice
of termination. In the event I-Link's acquisition of FTI is either not
ultimately consummated or rescinded, I-Link shall have the right to
identify another long-distance carrier to provision the Members and
renegotiate new pricing of the Services with WealthNet. In the event the
parties are unable to agree on new pricing within ninety (90) days, either
party shall be able to terminate this Agreement without liability to the
other party, other than for collected Member revenues to be allocated as
provided in Exhibit 3.6; provided, however, that no such termination shall
relieve I-Link and/or FTI from their obligations under Section 10 with
respect to the "WealthCom" name, so long as WealthNet shall take no action
to hinder the collection by I-Link and/or FTI of any bona-fide accounts
receivable owed by the Members.
13. CROSS INDEMNIFICATION. In the event any willful misconduct or negligent
act or omission of either party or its principals employees, agents or
authorized representatives causes or results in (a) loss, damage to, or
destruction of property of the other party or third parties, and/or (b)
death or injury to persons including, but not limited to, employees or
invitees of either party, then such party shall indemnify, defend, and hold
the other party harmless from and against any and all claims, actions,
damages, demands, liabilities, costs, and expenses, including reasonable
attorney's fees and expenses, resulting therefrom. The indemnifying party
shall pay or reimburse the other party promptly for all such loss, damage,
destruction, or injury.
14. LIMITATION ON LIABILITY.
14.1 IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE)
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR
FOR LOSS OF REVENUE OR PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR
OTHER FINANCIAL LOSS OR COSTS ARISING OUT OF OR IN CONNECTION WITH THE
SALE, INSTALLATION, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE
PRODUCTS AND/OR SERVICES PURCHASED AND PROVIDED PURSUANT TO THIS
AGREEMENT.
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14.2 I-Link's liability to any person whatsoever, other than WealthNet, its
principals, employees, agents or authorized representatives, arising
out of or in connection with any sale, use or other employment of any
Products or Services provided to WealthNet and/or its Member
hereunder, whether such liability arises from any claim based upon any
contract, warranty, tort or otherwise, shall in no case exceed the
actual amount paid to I-Link for Services and Products delivered
pursuant to this Agreement.
15. NOTICES. All notices given pursuant to this Agreement shall be in writing
and addressed as set forth below. Addresses may be modified at any time by
written notification to the other party. Any such notice or other
communication shall be deemed given and effective when delivered personally
or by fax or three (3) days after the postmark dated if mailed by certified
or registered mail, postage prepaid, return receipt requested.
If to WealthNet If to I-LINK
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▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
16. INDEPENDENT CONTRACTOR STATUS. This Agreement is intended to secure the
marketing and promotional activities of WealthNet as an independent
contractor. This Agreement shall in no way be construed as, nor is it
intended to appoint WealthNet as a legal representative of I-Link or to
create a partnership, joint venture, or other joint interest between
WealthNet and I-Link. Except as expressly provided herein, neither party
has any right or authority to act for or on behalf of the other, or to
assume or to create any obligation or responsibility, express or implied,
on behalf of or in the name of the other in any manner whatsoever without
the express written approval of the other.
17. FORCE MAJEURE. Any delay in or failure of performance by either party
under this Agreement (other than payment obligations) shall not be
considered a breach of this Agreement and shall be excused if and to the
extent it is caused by any occurrence beyond the reasonable control of the
party affected, including, but not limited to: acts of God or the public
enemy; fire; flood; embargoes; governmental restrictions; strikes or labor
difficulties; riots; wars or other military action; civil disorders;
shortages of labor, fuel, power, materials, supplies or transportation; or
delays in deliveries by suppliers. The affected party shall use reasonable
commercial efforts to mitigate or eliminate the cause of such delay or its
effects. The affected party shall notify the other
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in writing promptly of any failure or delay in, and the effect on, its
performance under this Agreement.
18. ADMINISTRATIVE PROVISIONS.
18.1 AMENDMENTS. The provisions of this Agreement may not be amended,
altered, or waived, in whole or in part, except by the written consent
of both parties.
18.2 ASSIGNMENT; SUCCESSORS AND ASSIGNS. It is hereby agreed that this
Agreement is personal to each party and that neither party shall
assign, sell, license, or otherwise transfer to any person or entity,
any of the obligations, responsibilities, rights, privileges, and
interests which are set forth and established by this Agreement
without obtaining the prior written consent of the other party, which
consent shall not be unreasonably withheld. In the event of a
permitted assignment hereunder, this Agreement shall be binding on,
and shall inure to the benefit of, the parties to it and their
respective successors, and assigns.
18.3 WAIVER. The failure of either party at any time to require performance
by the other party of any provision hereof, shall in no way affect the
full right to require such performance at any time thereafter. Nor
shall the waiver by either party of a breach of any provision hereof
be taken or held to be a waiver of any succeeding breach of such
provision or as a waiver of such provision itself.
18.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah.
18.5 ARBITRATION OF DISPUTES. Should the parties hereto be unable to
amicably resolve between themselves any disagreements relating to or
arising from any one or more of the provisions of this Agreement,
neither party shall seek redress against the other in any country or
tribunal in any part of the world, but instead both parties shall
submit such disagreement to binding arbitration in accordance with the
rules of and under the auspices of the American Arbitration
Association. Neither party shall have the right to further appeal or
redress in any other court or tribunal except solely for the purpose
of obtaining execution of the judgment rendered by such arbitration.
The prevailing party shall be entitled to all costs incurred in
obtaining such award, including reasonable attorneys' fees, together
with all costs incurred in the collection process including attorneys'
fees relating thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
I-LINK WORLDWIDE INC. WEALTHNET INCORPORATED
By: ________________________ By: _________________________________
Print Name: ________________ Print Name:__________________________
Title: _____________________ Title:_______________________________
Date: ______________________ Date:________________________________
ACKNOWLEDGED AND AGREED TO:
FAMILY TELECOMMUNICATIONS INCORPORATED
By: _______________________
Print Name: _______________
Title: ____________________
Date: _____________________
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