ECHARGE(TM) CORPORATION
MERCHANT SERVICES AGREEMENT
Proprietary and Confidential
This Agreement is entered into as of this ____th day of __________, 199__ (the
"Effective Date") by and between eCHARGE(TM) Corporation (hereinafter referred
to as "eCHARGE(TM)"), a Washington based corporation with a place of business at
Suite 745, 500 Union Street, Seattle, WA, 98101, and Suite 401, 1770 West 7th
Street, Vancouver, BC, V614Y6, and
Merchant Name: Nettaxi Online Communities, Inc.
Street Address: 2165 S. Bascom Ave., Campbell, CA 95008
Mailing/Billing Address: _______________________________________
Federal Tax ID Number (Social Security Number)___________________
Contact: _____________________________________________
Telephone: ____________________ Fax:__________________________
Program Name: ________________ Program Start Date:___________
eCHARGE(TM) and Merchant hereby agree that the following terms and conditions
apply to the services specified herein and in any Exhibit(s) or Amendments(s)
attached hereto, or as may be mutually agreed upon in writing at some future
date. This Agreement shall not be effective until executed by the Merchant and
accepted by eCHARGE(TM) at its principal place of business. This Agreement will
be binding upon the successors, assignees and legal representatives of the
parties. The terms of this Agreement and the Program it authorizes are subject
to all applicable state, local and federal laws, and the rules of the CARRIER.
1. SERVICES
eCHARGE(TM) agrees to provide to Merchant those services specified on the
attached Exhibit BB (the "Services"). The parties acknowledge that Merchant
intends to use the Services in connection with its information offerings, web
pages and programs (the Program"(s)).
2. PRICING
eCHARGE(TM) shall perform the Services for the prices described on attached
Exhibit A. eCHARGE(TM) reserves the right to pass on any price increases from
the CARRIER, including but not limited to line fees, transport charges, and
billing and collection fees. In addition, upon thirty (30) days notice, the
prices set forth on Exhibit A may be adjusted by eCHARGE(TM) to the then
standard of eCHARGE(TM) rates.
3. TERM
The term of this Agreement shall be for a period of ____ months ("Primary Term")
from the Effective Date. Following completion of the Primary Term, this
Agreement will be extended automatically indefinitely until written notice of
termination is received by either party at least thirty (30) days in advance of
the effective date of termination. The term of this Agreement shall be a
minimum of ninety (90) days after the starting date of program. Subject to
completion of the ninety (90) day minimum period, this Agreement or any Program
Scheduled hereto, may be terminated according to the terms set out in Section 6
(Termination).
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY THE CUSTOMER AND
ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF eCHARGE(TM) .
eCHARGE(TM) Corporation
By:______________________________________________
Authorized Signature
MERCHANT
_________________________________________________
By:______________________________________________
Name (Print):____________________________________
(Title) ____________________________________
1. DEFINITIONS
A. Definitions: For purposes of thus document, "eCHARGE(TM)" shall be
deemed to include eCHARGE(TM) Corporation, its subsidiaries, and their
affiliates and the directors, officers, employees, agents, representative,
subcontractors and suppliers of all of them, and "damages" shall be doomed to
refer collectively to all injury, loss or expenses incurred.
In addition to the terms defined in the Agreement(s), the following terms will
have the meanings set forth below:
The words "eCHARGE(TM)", "we", "our", and "as" mean eCHARGE(TM)" Corporation and
the words "you" and "your" mean the Merchant and its employees and Agents, if
any.
Billing Month-Each billing cycle, consisting of approximately 30 days and ending
on the last Friday of each month, used by eCHARGE(TM) to bill its Subscribers
for the Service.
2. AGREEMENT
A. Billing Services: eCHARGE(TM) will secure bill processing, bill
rendering, inquiry, collection and remittance services ("Billing Services") for
all numbers from the CARRIER of choice. This Agreement is expressly contingent
upon the ability of the CARRIER to secure necessary Billing Services from Local
Exchange CARRIER, ("LECs"), eCHARGE(TM) has no control over the CARRIER's
ability or willingness to provide call detail information.
B. Intellectual Property:
i. General. All right, title and interest in and to any original works of
authorship, inventories, discoveries, patents, ideas, concepts or any
improvements relating to the Program(s) or Services which are created by or
conceived, first reduced to practice, made or developed by eCHARGE(TM) prior to
the Effective Date or in anticipation of, in the course of or as a result of
design and development work pursuant to this Agreement, including without
limitations any source code (collectively, the "Intellectual Property"), shall
be solely owned by eCHARGE(TM). Source code. In any application in which
eCHARGE(TM) develops the programming, unless otherwise agreed in writing,
eCHARGE(TM) is the sole owner of the Source code.
ii. Trademarks. Neither party shall publish or use or change the other
party's names, logos, trademarks or service marks (collectively, "Marks") in any
manner inconsistent with the functional use of the eCHARGE(TM) application
without mutual prior written consent. Merchant agrees to prominently display
the eCHARGE(TM) "ICON" and other materials provided while this Agreement is in
effect or until notified by eCHARGE(TM) it cease its display or use.
iii. Restriction on Use and Disclosure. All documentation regarding
Intellectual Property, technical information, software, confidential business
information or other materials, in written form and clearly marked as
"proprietary" or "Confidential" ("Proprietary Information"), furnished by either
party in connection with this Agreement and all copies of such Proprietary
Information shall remain the property of the disclosing party and shall be held
in confidence and safeguarded by the receiving party.
C. Telephone Numbers: Merchant shall not have ownership of the telephone
number(s) assigned in connection with the Program(s).
D. Tariffed Services: Merchant's use of the Services is subject to any and
all tariff provisions related to said Services, to the extend that the Services
are tariffed. Charges under this Agreement will not be abated or refunded in
the event of outages or degradation in tariffed services, and charges for
tariffed services will not be abated or refunded in the event of delay or
failure of performance of this Agreement.
E. Merchant Obligations: Payment of any amounts billed for CARRIER charges,
service bureau fees, Billing Services, taxes, etc. Which are in excess of the
monthly CARRIER remittance for a dedicated 900 or other number, shall be paid by
the Merchant no later than the 20th day after the invoice date. In the event
payment is not received by the 20th day after the invoice date, then eCHARGE(TM)
may, in its discretion and without notice, require the placement of a deposit to
secure future payment, disconnect the Service, or undertake any action necessary
to secure payment in full. Late payments will be charged a $15 late fee, and
shall accrue interest at the rate of 1.5% per month (18% per annum) or the
maximum amount allowed by law. Merchant will be liable to eCHARGE(TM) for any
collection or attorney feels that are incurred in the event action is taken by
eCHARGE(TM) to collect any past due balance.
F. "900" or other Number Services: Under all applications, eCHARGE(TM)
accepts remittance payment directly from the network provider (the "CARRIER").
The following provisions apply on all applications:
i. The CARRIER will bill the Merchant's customers ("Callers") for the
charges associated with the Program(s).
ii. The CARRIER will make payments to eCHARGE(TM) . These payments are
established in an agreement between the CARRIER and eCHARGE(TM) and are, in
essence, the charges collected from Callers less the Carrier's charges for
network service including taxes, any adjustments resulting from Caller inquiry,
the billing fee of the CARRIER, including taxes and any applicable billing
surcharges, and any other charges ("Net Carrier Payments").
iii. The CARRIER reserves the rights to remove from a Caller's bill any
amounts associated with the Services that a Caller disputes or refuses to pay.
Where amounts have been removed the Caller's bill, Merchant will remain
obligated to eCHARGE(TM) and will be billed eCHARGE(TM)'s service bureau fees
for the respective call, as well any billing, transport or other related charges
for network services and services features that eCHARGE(TM) may incur.
iv. eCHARGE(TM) may establish a reserve fund subsequent billing adjustments
through a "Merchant Reserve Program" (MRP) from _________ to Merchant.
eCHARGE(TM) may require Merchant to deposit funds for this purpose as security.
In the event there is less than six months history of Merchant billings, the
Holdback MRP will generally be fifteen percent (15%) of the gross premiums
charged to callers. If Merchant breaches this agreement, eCHARGE(TM) reserves
the right to offset against the MRP Holdback any damages sustained by
eCHARGE(TM) as a result of the Merchant's breach, provided, however, that such
an offset shall not limit eCHARGE(TM)'s other remedies for breach of this
Agreement by Merchant. eCHARGE(TM) will not be liable to Merchant for any losses
or damages resulting from any charge back or collection of any charge back or
other amounts due under this agreement.
v. Merchant agrees to grant eCHARGE(TM) a security interest in all
receivables, and any other Merchant property maintained or in eCHARGE(TM)
possession as security for the performance of Merchant obligations and our right
of charge back under this Agreement.
vi. The Net CARRIER Payments shall further be adjusted by eCHARGE(TM) by the
service charges set forth herein and by the MRP Holdback(s). Remittance of the
new payment after service charges and MRP Holdback(s) will be made by
eCHARGE(TM) to Merchant within fifteen (15) days after receipt by eCHARGE(TM) of
payment from CARRIER.
vii. The CARRIER may implement a chargeback and refund system wherein
chargebacks of payments made to eCHARGE(TM) and Merchant will occur if the
Caller(s) do not pay, either by denying all knowledge of the call or for other
reasons. All chargebacks will be for the account and responsibility of the
Merchant. Such chargebacks will be satisfied out of current revenue amounts
and, if necessary, the MRP Holdback account will be charged. In the event that
these totals do not satisfy the chargeback liability, Merchant agrees to pay all
CARRIER documented chargebacks until liability is satisfied. This obligation
survives termination of the Agreement. eCHARGE(TM) will provide to Merchant any
refund reports which are received from the CARRIER.
viii. eCHARGE(TM) reserves the right to modify the amount of the MRP Holdback in
its sole discretion. In addition eCHARGE(TM), may establish additional
reserves. Upon termination of this Agreement, eCHARGE(TM) will refund any
funds remaining in the reserve account after fourteen months from the
termination date.
ix. In the event of any dispute regarding the number of calls received in
any billing period, the CARRIER shall control.
G. Credit Checks: eCHARGE(TM) may, at its option, perform a credit check on
all new or existing Merchants.
3. OBLIGATIONS OF MERCHANT
A. Merchant Costs: Merchant is responsible for all costs and management
related to the production, updating and promotion of all information used in its
Program(s), and for expenses incurred to obtain order.
B. Disclosure: Merchant shall fully disclose the following in a clear and
understandable manner in all internet, print, broadcast or telephone advertising
and any announcements promoting Merchant's Program(s): (i) the charges for the
Program(s) offering, (ii) any geographic time of day, or other limitations upon
the availability of the Program(s) (iii) that Merchant is solely responsible for
the content of all messages, products or services delivered and all
representations made during contact with Callers; and (vi) any other information
required by CARRIERs or regulators.
C. Endorsement: Merchant shall not indicate in its Program(s) or in any
advertising or announcements promoting its Program(s) that the CARRIER or
eCHARGE(TM) endorses the Program(s), or Merchant's products or services offered
through the Program(s), in any way.
D. Content Notification: Merchant will provide eCHARGE(TM) the web address
and a complete and accurate written description of is Program describing the
products and/or services comprising each Program and an outline of the
advertising of the Program, prior to the commencement of each Program and will
provide a new written description of the Program in the event of any changes in
such Program or Advertising. Merchant understands that eCHARGE(TM) will not
provide services for any Program that eCHARGE(TM), in its sole discretion,
determines is objectionable or is advertised in an objectionable manner.
Merchant acknowledges that it shall be solely responsible for (i) its
Program(s); (ii) the Program content;; (iii) all representations made during the
Program; (iv) the content and nature of all promotions and advertising; and (v)
the quality of products and/or services covered by the Program(s).
E. Legal Compliance: Merchant warrants that its Program(s) will at all
times comply in full with any and all requirements of federal, state and local
laws, including but not limited to any gaming statutes or the solicitation of
charitable or political contributions that apply to the Program(s).
F. Price Changes: In order for Merchant to charge the charge to Callers for
a Program, Merchant must notify eCHARGE(TM) at least thirty (30) days, or the
number of days notice required by the CARRIER if greater, in advance of the
change.
G. Traffic Increases: Merchant is required to provide forty-eight (48)
hours notice to eCHARGE(TM) before stimulating any Program inn a manner which
might be expected to result insignificant traffic surges.
H. Caller Tax Responsibility: eCHARGE(TM) is not responsible for the
determination, application, collection or remittance of any taxes due or which
may become due with respect to fees charged to Callers for the Services.
I. Honor all transactions: (i) Merchant agrees to honor all transactions
presented in connection with sales or service transactions via eCHARGE(TM)
without discrimination, subject to the procedures set forth in this Agreement.
(ii) Merchant agrees to honor these transactions unconditionally and not to
discriminate against a transaction in favor of a transaction completed with
cash, check, credit card or other form of payment.
J. Fraudulent transactions: Merchant agrees not to create a transaction
that Merchant knows or should have known to be fraudulent.
K. Performance: The access, merchandise or services described for sale by
the Merchant must actually be delivered or performed immediately or in fully
disclosed time frame otherwise specified to all users.
L. Cash advances: Merchant agrees not to engage in any transactions
involving cash advances or extensions of credit for any purpose, unless
specifically authorized in writing by eCHARGE(TM) to do so.
M. Uncollectible replacement: Merchant agrees not to encourage a
transaction to replace uncollected funds from another payment method, such as to
cover a returned check.
N. Privacy: Merchant agrees not to require personal information about the
customer, such as the home or work address, telephone or driver's license number
or Social Security number, as a condition of sale.
O. Customer Contact: Merchant agrees that eCHARGE(TM) may contract or
directly communicate with any customer concerning any sale or transaction
submitted to or through eCHARGE(TM).
4. RETURNS AND EXCHANGES
A. Merchant agrees to establish and maintain a fair and uniform policy for
the exchange and return of products or services sold.
B. Merchant agrees to give only non-cash credit, upon caller request for
return, and not to refund cash unless otherwise provided for by the CARRIER.
C. All disputes involving the goods or services purchased via eCHARGE(TM)
will be settled between the Merchant, the CARRIER and the caller. Merchant
agrees to indemnify and hold eCHARGE(TM) harmless from any claim or liability
relating to any such dispute.
D. Merchant agrees to provide eCHARGE(TM), upon demand, with any
information, evidence, assignments or other assistance eCHARGE(TM) may need to
help resolve any customer billing disputes regarding the nature, quality or
performance of the goods or services, or in connection with any return or
rejections of such goods and services.
5. WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION
A. No Warranty: eCHARGE(TM) MAKES NO WARRANTY, EXPRESSED OR IMPLIED, WITH
RESPECT TO CALL VOLUMES OR TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR SUITABILITY OF CALLERS FOR CUSTOMER'S APPLICATION,
PRODUCTS OR SERVICES.
B. Limitation of Liability: eCHARGE(TM)'S ENTIRE LIABILITY RESULTING FROM
eCHARGE(TM)'S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT
SHALL BE CUSTOMER'S ACTUAL, DIRECT DAMAGES AS MIGHT BE PROVABLE IN A COURT OF
LAW, BUT NOT TO EXCEED THE AMOUNT PAID TO eCHARGE(TM) BY CUSTOMER FOR SERVICES
PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL eCHARGE(TM) BE LIABLE FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL, EXEMPLLARY OR PUNITIVE
DAMAGES OR FOR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT
eCHARGE(TM) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 5 SHALL APPLY (i) REGARDLESS
OF THE FORM OF CLAIM OR ACTION, AND (ii) WHETHER ORN OT DAMAGES WERE
FORESEEABLE. IN NO EVENT SHALL eCHARGE(TM) BE LIABLE FOR: (i) ANY BILLING,
COLLECTION, TECHNICAL, OR OTHER MISTAKES, ERRORS, OR OMISSIONS OF CARRIER; OR
(ii) CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY OTHER PARTY.
C. Indemnification/Hold Harmless: Merchant shall indemnify and hold
harmless eCHARGE(TM) , its agents, employees, officers and directors from and
against any and all fines, penalties, losses, damages, injuries, claims,
(including attorney's fees) or other liabilities arising out of or in connection
with this Agreement or the performance of this Agreement and caused by the acts
of omission, negligent or otherwise, of Merchant or a subcontractor employee or
an agent of Merchant indicating but not limited to claims of third parties
resulting from or in connection with the Merchant's products, services, messages
or Program(s). Caller contracts, promotions and advertising disseminated,
broadcast, furnished or supplied by Merchant or any employee or customer or any
one of them or any claims for trademark or patent infringement or any claim for
libel or slander or any failure of the Program(s) t comply with applicable law.
Non-payment of remittance: eCHARGE(TM) will not be liable for payment of any
remittance or portion thereof which result from: (i) transactions that are
ineligible, fraudulent or illegal, or that violate the rules of the CARRIER,
(ii) transactions the consumer claims to have been performed without their
consent, (iii) transactions in which the Consumer disputes any liability because
the merchandise or services were not received or were returned, rejected, or
defection, or because you have failed to perform any obligation in connection
which such merchandise or services.
6. TERMINATION
A. By eCHARGE(TM): eCHARGE(TM)" may terminate this Agreement seize any
incoming funds and disconnect Merchant's Program immediately if: (i) Merchant
fails to pay any charge when due; (ii) Merchant significantly changes the scope
or focus of the program/application without the prior written consent of
eCHARGE(TM) and the CARRIER (where required); (iii) breaches any part of this
Agreement and such condition continues un-remedied for ten (10) days after
receipt of written notice; (iv) your insolvency, bankruptcy, receivership, or
dissolution; (v) your actual or attempted assignment of the Agreement or any of
you duties under this Agreement to another party, except as specified in section
7(B) of this Agreement; (vi) your making gross misrepresentations to actual or
prospective customer that have not been remedied within 30 days; (vii) your
death or incapacity if you are a natural person; or (viii) if the Merchant
terminates service due to (1)adverse affect of Merchant's Program on CARRIER's
tariffed services, public image or goodwill, (2) a LEC's failure to provide
necessary Billing Services at reasonable rates, or (3) receipt of complaints
regarding Merchant messages, representations, promotions, advertising, products
or services or if claims are made arising from them.
B. Effect of Termination: Upon termination by eCHARGE(TM), Merchant shall
be liable for any applicable charges, including termination charges. In
addition, eCHARGE(TM) may terminate this Agreement without cause with at least
thirty (30) days prior written notice to Merchant specifying the exact date and
time of such termination. Notwithstanding any Notice of Termination under
Agreement, this Agreement shall remain effective with respect to any transaction
occurring prior to such termination for a period of one year.
C. BY Merchant: If eCHARGE(TM) fails to perform or observe any material
term or condition of this agreement and such failure continues un-remedied for
thirty (30) days after receipt of written notice, Merchant may cancel this
Agreement without liability for cancellation or termination charges.
D. Failure to Activate 900 or other Number Service(s): This Agreement will
automatically terminate if Merchant does not activate the service within sixty
(60) days of original 900 or other number(s) assignment unless mutually extended
in writing by both parties hereto.
7. MISCELLANEOUS
A. Force Majeure: Neither party nor their respective affiliates,
subsidiaries, or subcontractors shall have liability for delays or damages due
to: fire, explosion, lightning, pest damage, power surges or failures, strikes
or labor disputes, water, acts of God, the elements, war, civil disturbances,
acts of civil or military authorities or the public enemy, inability to obtain
parts or supplies or network access, transportation (acillities, fuel or energy
shortages, acts or omissions of any common CARRIER or its Agent (including the
local exchange companies), or other causes beyond a party's control whether or
not similar to the foregoing.
B. Neither party may assign this Agreement without the prior written consent
of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, eCHARGE(TM) may assign this Agreement, without
consent to: (i) a subsidiary, affiliate, or parent company; (ii) any firm,
corporation or entity which eCHARGE(TM) controls, is controlled by, or under
common control with; (iii) any partnership in which eCHARGE(TM) has a majority
interest; or (iv) to any entity which succeeds to all or substantially all of
eCHARGE(TM) assets whether by merger, sale or otherwise.
C. Merchant Investigations: Merchant acknowledges and agrees that it is
entering into the Agreement based upon its own independent decision and
investigation.
D. Severability: If any portion of the Agreement is found to be invalid or
unenforceable, the parties agree that the remaining portions shall remain in
effect. The parties further agree that in the event such invalid or
unenforceable portion is an essential part if this Agreement, they will
immediately begin negotiations for a replacement.
E. Modification and Waiver: This Agreement shall not be modified, altered,
changed or amended in any respect, except where initialed by both parties.
F. Notices: Any notice required by this Agreement will be effective and
deemed delivered three (3) business days after posting with the United States
Postal Service when mailed by certified mail, return receipt requested, properly
addressed and with the correct postage, one (1) business day after pick-up by
the courier service when sent by overnight courier, properly addressed and
prepaid on one (1) business day after the date of the sender's electronic
confirmation or receipt when sent by facsimile transmission. Notices will be
sent to the address or FAX numbers set forth in this Agreement, unless either
party notifies the other in writing of an address or FAX number change.
G. Limitation of Actions: Any legal action brought by Merchant against
eCHARGE(TM) with respect to this Agreement must being within two years after the
cause of action arises.
H. Governing Law/Versus Interpretation: This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. Any
litigation relative to this Agreement shall be litigated in the appropriate
legal forum in Seattle, Washington, or the U.S. District Court for the District
of Washington.
EXHIBIT B
DESCRIPTION OF SERVICES
-------------------------
eCHARGE(TM) will provide to merchant the following services:
1) Contracted billing and collection via the CARRIER as specified in the
Merchant Services Agreement
2) Transaction processing through the eCHARGE(TM) Secure Billing System
3) eCHARGE(TM)/Merchant web page interface
4) Known Uncollectible/Recharge Blocking
5) Transaction documentation
6) Customer support services
ECHARGE(TM) CORPORATION
MERCHANT SERVICES AGREEMENT
Proprietary and Confidential
EXHIBIT A
PRICES
For Services provided for in this agreement:
1) Merchant agrees to pay eCHARGE(TM) the following amounts upon execution
of this agreement:
(a) Registration Fee $ 50.00
(b) Security Deposit: $_____________
(c) Programming: $_____________
(d) Interface: $_____________
2) Merchant agrees to pay eCHARGE(TM) the following amounts monthly:
(a) Fixed Monthly Service Fee $25.00
This fee is refundable if the total transaction volume exceeds $500.00 per
month.
3) Merchant agrees to pay eCHARGE(TM) the following amounts on a per
transaction basis:
1-499 transactions 9% per Transaction
500-999 transactions 8.25% per Transaction
1000+ transactions 7.50% per Transaction
4) Merchant acknowledges and understands that additional fees will be levied
by eCHARGE(TM) to their customers according to the following schedule:
For transactions $10.00 or less $0.50 per transaction
For transactions from $10.01 to $35.00 $1.00 per transaction
For transactions from $35.01 to $50.00 $2.00 per transaction
Attached to and made part of that certain Merchant Services Agreement dated:
__________ _________ ____________
Month Day Year
______________________________________ ____________________________________
Approved by Merchant Approved by eCHARGE(TM)
ECHARGE(TM) CORPORATION
AGENT SERVICES AGREEMENT
Proprietary and Confidential
This Agent Agreement (this "Agreement"), dated as of 07-29-98, is between
eCHARGE(TM) Corporation, a Washington corporation (eCHARGE) and
Net Taxi, 2165 S. Bascom Avenue, Campbell, CA 95009 ("Agent").
Whereas, eCHARGE(TM) is a financial transaction company specializing in
Internet billing and collections and the Agent wishes to act as an agent for
eCHARGE(TM) in the sale of the eCHARGE(TM) system to third parties,
Now, therefore, the parties agree to the following:
1. APPOINTMENT. eCHARGE(TM) hereby appoints the Agent as its
non-exclusive agent to incorporate eCHARGE(TM) Billing System within Agents
commerce products on the terms and conditions contained herein.
1.1 Agent will develop a modified version of its commerce products or
technologies that will integrate the eCHARGE(TM) Billing System. The
development will result in a version of the product that can be offered as
optional functionality for Merchants or end-users who can install the
eCHARGE(TM) Billing option in an intuitive and/or prompted manner.
1.2 Upon completion of the development of the modified product, Agent will
produce a demonstration, either scripted and live, or self-running, that
illustrates the functionality and interoperation of the product incorporating
the eCHARGE(TM) System.
1.3 Agent shall designate a contact who is knowledgeable about the
functionality and interoperation of its products with the eCHARGE(TM) Billing
System and who is accessible to respond to inquiries.
2. ORDERS.
2.1 Agent will submit orders from potential eCHARGE(TM) Merchant customers
to eCHARGE(TM) at its address or fax number set forth on the signature page
hereof, on completed order forms provided by eCHARGE(TM), eCHARGE(TM) may change
order submission procedures and forms at any time upon reasonable written
notice.
2.2 All orders are subject to the final approval of eCHARGE(TM) and its
telephone carrier(s), and either eCHARGE(TM) or any carrier may reject any
order in its sole discretion.
2.3 Agent acknowledges that eCHARGE(TM) shall be under no obligation to
provide any services to any customer (including without limitation Agent, in the
event that Agent wishes to become a customer of eCHARGE(TM)) until such customer
has executed eCHARGE(TM)'s standard forms of Master Agreement and Merchant
Services Agreement, or some variation thereof which is satisfactory to
eCHARGE(TM).
3. COMMISSIONS.
3.1 Subject to Section 3.3, during the term of this Agreement and for a
period of one year after the expiration or termination hereof, eCHARGE(TM) will
pay Agent commissions on the accounts of eCHARGE(TM) customers introduced to
eCHARGE(TM) by Agent in accordance with the Agent Fee Schedule set forth in
Exhibit A. Such fees may be revised annually by eCHARGE(TM) upon written notice
to the Agent, provided that in no event may they be reduced more than 10%
without Agent's prior written consent.
3.2 Commissions shall be paid on the fifteenth day of each month for all
transactions occurring during the previous calendar month. In the event that
any amount payable to Agent is not paid within 30 days of is due date, then
interest at the rate of 10% per annum (or such lesser amount as constitutes the
maximum rate allowed by law) will accrue on the unpaid amount until it is paid.
3.3 eCHARGE(TM) may cease to pay commissions to Agent in the event that
Agent violates its covenant set forth in section 4.
4. NON-COMPETITION. During the term of, or during the one year period after
the expiration or termination of, this Agreement, Agent shall not contact any of
the eCHARGE(TM) customers procured pursuant hereto for the purpose of inducing
them to switch to another provider of Internet billing services.
5. TRADE NAMES AND MARKS. eCHARGE(TM) grants Agent a limited license to use
its name and federally registered marks only in connection with obtaining orders
under this Agreement. This limited license will terminate upon the earlier of
(a) the expiration or termination of this Agreement and (b) eCHARGE(TM)'s giving
Agent written notice to stop using its trade names and service marks.
6. TERMS AND TERMINATION.
6.1 The Term of this Agreement shall be for a period of one year from the
date hereof. Thereafter, it will continue on a month-to-month basis until it is
terminated by either party upon at least thirty days prior written notice to the
other party or by eCHARGE(TM) in accordance with Section 6.2 below.
6.2 eCHARGE(TM) may terminate this Agreement upon written notice to Agent in
the event that Agent violates the covenant set forth in Section 4.
7. INDEPENDENT CONTRACTOR. The Agent is an independent contractor
hereunder. This Agreement does not create any partnership or agency
relationship between the parties, and neither party will have the right, nor
will it attempt, to bind, act for, or otherwise make representations on behalf
of the other party, unless expressly agreed to in a writing signed by the
parties.
8. eCHARGE(TM) will allocate a Marketing Flex Fund in the amount of Thirty
Thousand Dollars ($30,000) to Agent upon the signing of the Agent Agreement. The
fund can be used for mutually agreed upon payments or credits in the following
manner:
- Buy down of Transaction charges for Merchants
- Purchase of Banner Advertising on and/or of the placement of the
eCHARGE(TM) logo on the front page of Agent web site for a period of at least
six months or purchase Co-op Advertising in Trade Magazines.
- Payment for a third party software Integration technical team to
accelerate the implementation of the eCHARGE(TM) billing option.
- Joint promotional programs such as Trade Shows, Seminars, International
Marketing programs or other items as jointly agreed upon between Agent and
eCHARGE(TM) .
- This agreement must be signed and returned to eCHARGE(TM) before July 28,
1998 to take advantage of the Marketing Flex Fund.
- Upon execution of this Agreement, eCHARGE(TM) agrees to allocate $30,000
to advertising on the nettaxi.com website. Payments of the $30,000 will be as
follows:
a. first installment of $10,000 upon signing will be paid to Nettaxi.
b. balance of $20,000 paid out over next four months, as monthly
installments of $5,000 each.
9. MISCELLANEOUS
9.1 eCHARGE(TM) reserves the right to review and approve all marketing
programs designed to promote eCHARGE(TM) or the Agent's relationship with
eCHARGE(TM) .
9.2 Agent agrees to prominently display the eCHARGE(TM) logo on its site,
and to provide eCHARGE(TM) with a banner ad on their home page.
9.3 No failure of any party to exercise any right or remedy hereunder shall
constitute a waiver of such or any other right or remedy on any subsequent
occasion.
9.4 This Agreement inures to the benefit of and binds the parties and their
successors and assigns.
9.5 This Agreement may be amended only by an instrument in writing signed by
both parties.
9.6 If any provision hereof is determined to be invalid or unenforceable,
such provision shall be deemed to be severably from the remainder of this
Agreement and shall not cause the invalidity or unenforceability of the
remainder of this Agreement.
9.7 This Agreement contains the entire understanding between the parties
concerning the subject matter hereof.
10. NOTICES. All notices delivered pursuant to the provisions hereof shall
be deemed delivered when (a) actually delivered by hand, (b) ten days after
being sent postage prepaid by United States first class mail, postage prepaid,
(c) or two days after being sent via a nationally recognized courier service, or
(d) one day after being sent by facsimile, to the recipient's address or
facsimile number set forth on the signature page hereof, or to such other
address or facsimile number of which the recipient last shall have notified the
other party in writing.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to sign this Agreement as of the date first above written.
eCHARGE(TM) Corporation AGENT
______________________________ _________________________________
Authorized Signature Authorized Signature
______________________________ _________________________________
Title Title
______________________________ _________________________________
Date Date
EXHIBIT A - AGENT FEE SCHEDULE
MERCHANT FEES (PAID BY MERCHANT)
------------------------------------
PRICING SCHEDULE
AGENT AGENT ECHARGE
CHARGES RECEIVES RECEIVES
1) REGISTRATION FEE $50.00 $35.00 $15.00
2) MONTHLY RECURRING (IF
UNDER $500 PER CYCLE) $25.00 $ 5.00 $20.00
3) BILLING FEE (PERCENT OF
GROSS TRANSACTIONS)
0-500 TRANSACTIONS PER MONTH 9%
501-1000 8.25%
1001+ 7.50%
CONSUMER FEES (PAID BY CONSUMER)
------------------------------------
TRANSACTION VALUE PRICING SCHEDULE
SECURE TRANSACTION FEES AGENT ECHARGE
(0-10000 TRANSACTIONS) FEE RECEIVES RECEIVES
$0-$10 $0.50 $0.10 $0.40
$10.01-35 $1.00 $0.15 $0.85
$35.01- $2.00 $0.20 $1.80
SECURE TRANSACTION FEES
(10001-20000 TRANSACTIONS)
$0-$10 $0.50 $0.11 $0.39
$10.01-35 $1.00 $0.16 $0.84
$35.01- $2.00 $0.22 $1.78
SECURE TRANSACTION FEES
(20001+ TRANSACTIONS)
$0-$10 $0.50 $0.12 $0.38
$10.01-35 $1.00 $0.17 $0.83
$35.01- $2.00 $0.24 $1.75
TYPE: EX-10.47
SEQUENCE: 7
CONVERSION AGREEMENT
--------------------
This Agreement is made and entered Into by and between NETTAXI ONLINE
COMMUNITIES INC, a Delaware corporation ("NeTTaxi"), and SSN Properties, LLC, a
California limited liability company (SSN'), with respect to that certain Asset
Purchase Agreement dated as of October 1. 1997, by and between the parties
hereto and that certain Convertible Secured Promissory Note of the same date and
in the form of Exhibit D to the Asset Purchase Agreement.
RECITALS:
WHEREAS, under the terms of the Asset Purchase Agreement and under the
Convertible Secured Promissory Note, SSN has the right to convert up to fifty
percent (50%) of the amount of the Convertible Secured Promissory Note into
common stock of NeTTaxi at $1.00 per share, and
WHEREAS, NeTTaxi is additionally indebted to SSN in the amount of $70,000 net of
the legal fees payable by reason of the Proskaur Rose litigation; and
WHEREAS, the parties hereto desire to dispose of and conclude any and all
outstanding matters and issues I between them respecting the Asset Purchase
Agreement and the Convertible Secured Promissory Note;
NOW, THEREFORE, in consideration of the premises and mutual representations,
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which Is hereby acknowledged, the
parties hereto agree as follows:
Section 1. CONVERSION OF THE CONVERTIBLE SECURED PROMISSORY NOTE. The
principal of the Convertible , Secured Promissory Note, $1,020,000, and accrued
. interest, through 307 days to September 4, 1998 of $85,792 is hereby agreed to
be; converted into 1,105,792 shares of the common stock of NeTTaxi.
Section 2. PAYMENT OF $70,000. Additionally, SSN agrees to accept in
full payment for the outstanding account. receivable in the amount of $70,000 an
additional 70,000 shares of the common stock of NeTTaxi, for an aggregate amount
of 1,175,792.
Section 3. RELEASE OF ALL CLAIMS AND SECURITY INTERESTS. In
consideration of the conversion and payment set forth in Sections I and 2
hereinabove, SSN hereby accepts such payments In stock in lieu of cash and
hereby releases and discharges NeTTaxi from any and all claims, causes of action
or other obligations respecting said Convertible Secured Promissory Note and
account'. receivable.
Section 4. INDEMNIFICATION. SSN agrees to indemnify and hold harmless
NeTTaxi and its respective employees, directors, officers, agents or affiliates
from and against any losses, claims, damages, liabilities, joint and several,
including all legal and other expenses reasonably incurred in connection with
any and all obligations or claims for payment or causes of action against
NeTTaxi arising out of the assets or the transaction represented by the Asset
Purchase Agreement to the extent of the indemnification contained in the Asset
Purchase Agreement
Section 5. SEVERABILITY. If any provision of this Agreement shall be
held or made invalid by a statute, rile, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby and. to
this extent, the provisions of this Agreement shall be deemed to be severable,
Section 6. AUTHORIZATION / ADDITIONAL AGREEMENTS. SSN and NeTTaxi represent
and warrant that each has all requisite power and authority, and all necessary
authorizations, to enter into and carry out the terms and provisions of this
Agreement. SSN hereby undertakes and
agrees to execute and deliver any additional agreements required to carry out
the terms of this Agreement
SECTION 7. SUCCESSORS. This Agreement and all rights, liabilities and
obligations hereunder shall be binding upon and inure to the benefit of each
party's successors but may not be assigned without the prior written approval of
the other party. Any such approval shall not be unreasonably withheld.
Section 8. HEADINGS. The descriptive headings of the sections of this
Agreement are inserted for convenience only, do not constitute a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 9. NOTICES. Any notice or other communication to be given to NeTTaxi
hereunder may be given by delivering the same in writing to 2165 South Bascom
Avenue, Campbell, California 95008, and any notice or other communication to be
given to SSN may be given by delivering the same to SSN Properties, LC, 14836
Three Oaks Court, Saratoga, California 95070, or in each case, such other
address of which a party shall have received notice. Any notice or other
communication hereunder shall be deemed given three days after deposit in the
mail if mailed by certified mail, return receipt requested, or on the day after
deposit with an overnight courier service for next day delivery, or on the date
personally delivered.
EXECUTE this 4th day of September, 1998.
NETTAXI ONLINE COMMUNITES, INC. SSN PROPERTIES, LLC
By: /s/ Robert A. Rositano, Jr. By: /s/ Robert A. Rositano, Sr.
------------------------------- ----------------------------
Robert A. Rositano, Jr. Robert A. Rositano, Sr.
Chairman and Chief Executive Officer Manager
2
Merchant Services Agreement - eCharge Corp. and Nettaxi Online Communities Inc.
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