Exhibit 10.12
AGREEMENT FOR THE APPOINTMENT
OF A
RESELLER
THIS AGREEMENT FOR THE APPOINTMENT OF A RESELLER ("Agreement") is made as of
this 8th day of June , 2006 by and between Texas Digital Systems, Inc., a Texas
corporation, with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, (hereinafter referred to as "Texas Digital", and Data Call Technologies ,
a Nevada corporation, with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
(hereinafter referred to as the "Reseller").
1. APPOINTMENT: Texas Digital does hereby appoint and by the execution of this
Agreement the Reseller does hereby accept the appointment as a
non-exclusive reseller of Texas Digital for the solicitation of the sale of
the products and services as described below in "PRODUCTS" hereto to
end-users in the territory designated hereinafter, all upon the terms and
conditions of this Agreement.
PRODUCTS
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VitalCAST Broadcast Solution (including both software and hardware)
2. TERRITORY: The Reseller shall solicit sales of the Products only in the
territory set forth below in "TERRITORY" hereto (hereinafter the
"Territory"). The Reseller acknowledges that this Agreement does not confer
on Reseller exclusive rights in any Territory.
TERRITORY
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The United States of America
No solicitation for the sale of the Products shall be undertaken by
the Reseller either directly or indirectly outside the boundaries of the
Territory without the prior written consent of Texas Digital.
3. TERM: Upon acceptance by both parties, this appointment shall commence as
of June 8, 2006, and continue through June 8, 2007, unless sooner
terminated as herein provided.
4. COMPENSATION / PRICING / MAINTENANCE & SUPPORT: The Reseller shall not be
compensated by Texas Digital, but rather is responsible for purchasing the
equipment/services from Texas Digital at a pre-determined discounted price
and then marking up the components up at the percentage the Reseller
desires.
DISCOUNTED PRICING OFF LIST (MASTER for ▇▇▇▇▇▇)
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Software Discount X
Texas Digital Hardware Discount X
3rd Party Hardware Discount X
Extenders & Unint. Power Supplies X
Texas Digital will provide the Reseller with a complete Price List.
Texas Digital reserves the right to refuse any order submitted by the
Reseller and no order shall be deemed accepted until executed by a duly
authorized representative of Texas Digital.
All solutions typically include an annual maintenance agreement of 18%
of the total software price and 12% of the total Texas Digital hardware
price based on Texas Digital's then current Price List (these 18% and 12%
maintenance amounts are paid to Texas Digital). 3rd party hardware usually
constitutes a pass-along of the manufacturer's warranty to the end
customer.
5. RESELLER COMMITMENTS: Reseller commitments include:
A. Reseller shall use its best efforts to promote the sale and the
support of Texas Digital's product and shall promptly report to Texas
Digital all orders taken and shall pay its own expenses in connection
with the sale, promotion and first level support of products. The
Reseller's efforts shall include but not be limited to the following.
o Generating prospects
o Follow-up on leads
o Preparing quotes and proposals
o Securing firm orders
o Providing after sale follow-up
B. Texas Digital will supply the Reseller with electronic copies of
its existing sales collateral. The Reseller is responsible for
printing costs of the literature for distribution. The Reseller may
disseminate the materials as needed for the purpose of enhancing the
sales potential of the Products. The Reseller may not use Texas
Digital's name, trade names, trademarks, or logos in connection with
business or activities other than in the manner expressly authorized
in Texas Digital's advertising and promotional guidelines.
C. Reseller shall not, during the period that this Agreement is in
effect, sell or handle products that are competitive with those which
Texas Digital provides. However, if Texas Digital shall hereafter
offer a new product competitive with any product then being handled by
Reseller, Reseller shall not be obligated to handle such products of
Texas Digital. Reseller shall have the option, within 60 days, of
determining either to handle the competitive product or to handle
Texas Digital's product. If Reseller chooses to handle the competitive
product, Reseller shall have the right to terminate this Agreement
without prejudice.
D. Reseller shall have all orders taken directly from the customer
made out to Reseller. Such orders shall be subject to acceptance by
Texas Digital at Texas Digital's standard billing prices and terms
then in effect. Billing will be done by the Reseller. Texas Digital
may, at its discretion, accept orders made out to Texas Digital from
Reseller providing a line of credit and terms have been established by
Texas Digital for Reseller. All purchase orders to Texas Digital are
to show amounts and be payable in US Dollars.
6. TEXAS DIGITAL COMMITMENTS: Texas Digital commitments include:
A. Texas Digital shall furnish Reseller with descriptive
information, specifications, and sales aids as may be necessary for
the purpose of Reseller's service hereunder. Texas Digital will also
train Reseller's salespeople, and technicians for maintenance support,
provide demonstration equipment and assist in competitive situations
when it deems necessary.
B. Texas Digital will make available to the Reseller such limited
quantities of the Product and demonstration tools to be used as
samples as Texas Digital may from time to time deem appropriate. Such
sample Products may only be used for demonstrations and activities
related to the solicitation of sale of the Products and may not be
sold, transferred or placed into production or use by the Reseller or
any other parties without the express written consent of Texas
Digital. The Products are trade secrets and/or confidential
information of Texas Digital. The Reseller shall take appropriate
action to protect the confidentiality of the Products and to ensure
that any person permitted to access the Products does not
reverse-assemble, reverse-compile or otherwise reverse-engineer the
Products, in whole or in part.
C. Texas Digital warrants that to the best of its knowledge Texas
Digital's products sold by Reseller are free and clear of
infringements of any valid and enforceable patents in their normal use
and Texas Digital agrees to save Reseller harmless from material loss,
expense and liability on account of any such proven infringements.
D. Texas Digital warrants that its products shall conform to the
specifications of such product in place as of the date of shipment and
shall be free from material defects in materials and workmanship for
the warranty period stated on Texas Digital's price list. Texas
Digital's warranty is in lieu of any and all the warranties expressed
or implied and SPECIFICALLY EXCLUDES ANY LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND.
E. Texas Digital shall use its good faith efforts to protect
Reseller from any interference by another Texas Digital representative
in currently active accounts.
9. SALES MEETINGS: Texas Digital may from time to time designate the time,
location and expense reimbursement conditions of sales meetings to be
attended by the Reseller.
10. SERVICES PERSONAL IN NATURE: The services being rendered by the Reseller to
Texas Digital are personal in nature and therefore the appointment made
herein and the rights and duties associated therewith may not be sold,
assigned or in any manner transferred without the prior written consent of
Texas Digital. Should the Reseller attempt any transfer, sale or assignment
of the appointment or associated rights and duties without such consent,
the same shall be null and void, without force or effect, and the
appointment made by this Agreement shall, at the option of Texas Digital,
terminate forthwith. The Reseller hereby assumes to conduct themselves in a
businesslike manner and not to commit any act which could adversely affect
the reputation of the Reseller, Texas Digital or any of Texas Digital's
other Resellers.
11. REPRESENTATIONS AND WARRANTIES TO CUSTOMERS; INDEMNIFICATION: Reseller
shall make no representations, warranties or promises to Texas Digital's
customers other than those which may appear in any contract, sales, or
promotional materials provided by Texas Digital. Reseller shall be an
independent agent and not an employee of Texas Digital and shall not imply
or represent anything to the contrary to any other parties. Reseller cannot
bind Texas Digital in any way. The potential liability of Texas Digital
should Reseller violate such prohibition is obvious and therefore Reseller
hereby indemnifies and holds Texas Digital, and Texas Digital's officers,
directors, employees, shareholders, and agents (collectively referred to
herein as the "Indemnified Parties") harmless from and against any loss,
including but not limited to reasonable attorney's fees, sustained by
Indemnified Parties as a result of a representation, warranty, or promise
made by the Reseller other than those specifically authorized in writing by
Texas Digital. Likewise, any representations, warranties or promises
appearing in any contract, or sales or promotional materials provided by
Texas Digital are strictly the responsibility of Texas Digital or the
manufacturer of the Products and Texas Digital hereby indemnifies and holds
the Reseller harmless from and against any loss, including but not limited
to reasonable attorney's fees, sustained by the Reseller as a result of a
false representation, warranty, or promise made by Texas Digital.
Texas Digital warrants that the Products will substantially comply
with their written specifications during the applicable warranty period. In
the event errors occur Texas Digital will take reasonable actions to bring
software up to specification and add to a subsequent point release in
accordance with Texas Digital's written warranty. The warranty period and
other warranty information is available from Texas DIGITAL'S Customer
Service department. EXCEPT AS STATED HEREIN, THERE ARE NO WARRANTIES, ORAL
OR WRITTEN EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
Texas Digital indemnifies Reseller against any loss or damage incurred
as a result of bodily injury or death to any person, to the extent that
such loss, injury or death is caused by the willful or negligent acts or
omissions of Texas Digital in connection with the design, manufacturer,
installation, or servicing of the Products.
Neither Reseller nor Texas Digital will, by reason of the change to or
discontinuance of any Product or the termination of this Agreement, be
liable to the other for compensation, reimbursement, or damages on account
of the loss of prospective profits on anticipated sales or on account of
expenditures, investments, leases, or commitments made in connection with
the business or goodwill of the other.
THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE; RESELLER AND
TEXAS DIGITAL WAIVING ALL OTHER LEGAL AND EQUITABLE REMEDIES.
12. TERMINATION: Either Texas Digital or Reseller may terminate this Agreement
at any time without cause by giving the other party thirty (30) days
written notice.
This Agreement will be immediately terminated for cause:
o Upon failure to perform any of its material obligations or
covenants provided herein. The other party may terminate and cancel
this Agreement effective immediately upon providing written notice of
such termination to the other party. Such notice shall specify the
cause of termination;
o Upon reason of fraud or willful or negligent violation of any
federal or state statute or other directive issued by Texas Digital;
o If Reseller is prohibited from acting as an independent Reseller
in the Territory due to covenants or restrictions executed with third
parties; or
o If Reseller is otherwise acted to prejudice materially the
interests of Texas Digital in breach of this Agreement.
Except as otherwise provided elsewhere herein, notice of termination
shall be sent by Texas Digital or Reseller and shall be effective upon its
deposit in the United States mail, or other such method as provided in
Section 18 hereof. Any order placed through the Reseller and accepted by
Texas Digital as of the effective date of any termination shall be
compensated according to the terms set forth in Section 4. Immediately upon
termination, all sales manuals, price lists, customer/prospect account
lists, samples or demonstration equipment, and any other Texas Digital
property shall be promptly returned by the Reseller to Texas Digital.
13. EFFECT AND MODIFICATION: This instrument contains the entire and only
agreement between the parties respecting the rights, duties and obligations
of the parties hereto and supersedes all prior agreements made by the
parties with respect thereto.
14. DISPUTES: In the event any controversy or claim arises between the parties
to this Agreement, they will attempt in good faith to negotiate a solution
to their differences and, if negotiation does not result in a resolution,
the parties agree to try and resolve the dispute with the help of a
mutually agreed-upon mediator in College Station, Texas. Any costs and fees
of the mediation (each party's respective attorney's fees which shall be
paid by the party retaining such attorney) shall be shared equally by the
parties. In the event of threatened or actual irreparable harm, the
mediator may grant temporary or permanent injunctive or other equitable
relief.
If the dispute is not resolved within thirty (30) days after it is
referred to the mediator, any party may take the matter to court. In the
event either party resorts to legal action (including the mediation
referenced above) to enforce the terms and provisions of this Agreement,
the prevailing party shall be entitled to recover the costs of such action
so incurred, including, without limitation, reasonable attorney's fees.
15. NOTICES: All communications and notices, except those specifically
described to be served in a different manner elsewhere herein, shall be in
writing and shall become effective when deposited in the United States
mail, with proper postage for first-class mail prepaid, or deposited
prepaid with an appropriate next business day delivery service, addressed
to the respective addresses set forth below, or such address as Texas
Digital and the Reseller may from time to time give the other in writing.
If to Reseller: Data Call Technologies
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Attn:
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If to Texas Digital: Texas Digital Systems, Inc.
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Attn: Director of Channel Partnerships
16. LAW: This Agreement is to be construed and interpreted according to the
laws of the State of Texas, United States of America.
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17. CONFIDENTIALITY: The Reseller shall keep strictly confidential all the
terms and conditions, including amounts, in this Agreement and shall not
disclose them unless compelled by law to do so.
18. GENERAL: This Agreement supersedes and replaces any previous oral or
written discussions, proposals or agreements previously entered into
between Reseller and Texas Digital. This Agreement, together with all
Exhibits attached hereto and all writings incorporated herein by reference,
constitutes the entire agreement between Reseller and Texas Digital with
respect to the subject matter of this Agreement. The parties have not
relied on any previous written or oral statements that are not included in
this Agreement. Any modifications to this Agreement must be in writing and
signed by the Reseller and the Senior VP of Sales of Texas Digital.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
TEXAS DIGITAL:
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Director New Business Development
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By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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RESELLER:
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President & CEO
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By:/s/ ▇▇▇ ▇▇▇▇▇▇
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