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WINS LICENSE AND SERVICE BUREAU AGREEMENT
WINS License and Service Bureau Agreement (this "Agreement"), dated the
15th day of October, 1999, between WORLD INNOVATION NETCOMM SERVICES, INC.
("WINS") and GS TELECOM LIMITED or assignee (the "LICENSEE");
WITNESSETH
WHEREAS, WINS has developed proprietary systems of computer hardware
and software (the "Service Bureau") which supports a WINS's service know at the
ATTM Card. The ATTM Card will allow for LICENSEE's customers to purchase
products and services over the Internet and at locations where the ATTM Card is
accepted. A transaction fee will be charged to the LICENSEE's customers each
time one of the LICENSEE's customers utilizes the ATTM Card. The ATTM Card is a
work in progress and WINS will continually be adding additional functionality.
Each new function ("Program(s)") of the ATTM Card, if applicable, will be
licensed to LICENSEE pursuant to separate agreements).
WHEREAS, LICENSEE and WINS desire to enter into an arrangement to
provide Licensee's customers with access to the specified Programs on the
Service Bureau as outlined in the Application(s)/Exhibit(s) attached hereto;
NOW, THEREFORE, in consideration of the premises and mutual promises
and covenants contained herein, the receipt and sufficiency are hereby
acknowledged, the parties hereto agree as follows:
1. WINS Services. During, the term of this Agreement, WINS will make
the Service Bureau available to LICENSEE to be used for various purposes to be
mutually agreed upon by WINS and LICENSEE. Each new Program shall be described
in a written Application and attached as an Exhibit to this Agreement. Each
Application shall include all relevant terms and conditions governing such
Program and shall be governed by and subject to the terms of this Agreement. The
terms and provisions of the Application(s) are hereby incorporated herein by
reference for all purposes.
WINS will allow LICENSEE to use the Service Bureau, subject to current
capacity, WINS's technical requirements and limitations, scheduling commitments
and requirements to which WINS and its telecommunication and network providers
are subject, as well as to the availability of network services from WINS's
telecommunication and network providers, processors and other outsourced
vendors. All proposed Applications of the Service Bureau and all services to be
provided by WINS to LICENSEE pursuant to this Agreement will be subject to
approval by WINS, LICENSEE, telecommunication and network providers and any
standards or requirements, restrictions, regulations or other legal governing
body, laws, tariffs and regulations.
2. Application. Each Application shall be accompanied by a
non-refundable deposit as outlined in the Application which will be paid to WINS
by LICENSEE as a fee for the Program set-up and if necessary, submitting the
Pro-ram to the any Carrier(s) or network service provider for Program approval.
3. Obligations of WINS. WINS agrees to perform the following
obligations:
A. Access to the Service Bureau. Subject to the terms and
conditions of this Agreement, WINS will provide LICENSEE with a Limited License
to use the Service Bureau for the Pro-rams described in the Exhibit(s) attached
hereto.
B. Maintenance. WINS will use reasonable commercial efforts to
provide maintenance and technical support for the Service Bureau.
4. Obligations of LICENSEE. LICENSEE agrees to perform the following
obligations:
c,
A. Promotion. Due to all the factors, approval processes,
necessary testing, and other complexities involved with
adding, a Program to the Service Bureau, LICENSEE is
advised that LICENSEE should not start it's advertising
campaign until the Program is up and running, on the
Service Bureau and has been tested and approved by
LICENSEE.
B. Information/Programs. LICENSEE will provide all the
information to be entered into Service Bureau, consistent
with the Application(s). LICENSEE also acknowledges that
all information entered into the Service Bureau shall
conform to WINS's technical requirements and limitations. LICENSEE shall be
solely responsible for the information and content of all messages delivered to
customers and for all representations and other statements made. LICENSEE shall
be solely responsible for administering promotions, contests and sweepstakes
either indirectly or through third parties selected by LICENSEE; for providing
rules in accordance with legal compliance guidelines; the judging, and selecting
of winners; for the fulfillment of all promises and obligations made to
customers including, but not limited to, the award of prizes; for the quality of
products and services provided to customers and for the content and nature of
all promotions and advertising to induce customers or otherwise with respect to
the Program(s); the compliance with all federal, state and local laws and
regulations, including the assurance that LICENSEE's program does not violate
any copyrights, trademarks or servicemarks.
LICENSEE will not, without WINS's prior written consent,
indicate, represent or advertise with the Pro-ram, that WINS, its
telecommunication and/or network service providers endorse or verify the
service, products, or information made available through the Program. LICENSEE
shall not use any trademark or logo of WINS, its telecommunication and/or
network service providers without prior written permission.
C. Prohibited Acts. LICENSEE will not use the Service Bureau
for any of the following purposes:
(1) Any purpose prohibited by federal, state or local
laws of those countries where the service may be offered including but
not limited any federal, state, local laws, regulations or tariffs of
the United States; or
(2) The dissemination of any pornographic
communications or materials;
(3) The dissemination of messages containing
bigotry, racism, sexism or other forms of
discrimination;
(4) Any other uses which are objectionable to
WINS, its telecommunication and/or network
service providers.
D. LICENSEE's Costs and Payment for Services. LICENSEE agrees
to the licensing fees, charges and costs of WINS's services as set forth in the
Application.
E. Taxes and Tariffs. LICENSEE shall be liable for any and all
federal, state, and local taxes, tariffs or other assessments including any
interest and penalties in connection with the all services provided pursuant to
this Agreement, the Service Bureau, associated telecommunication and/or network
or service providers (collectively "Taxes").
F. Miscellaneous Expenses. WINS will charge, and LICENSEE
agrees to pay an additional fee for any services required by LICENSEE, to be
agreed upon in connection with each Program as outlined in the Application(s).
The non-refundable deposit, set-up fees, monthly fees, guarantee fees, revenue
sharing, and other miscellaneous services and expenses will be negotiated by the
parties as outlined and agreed to in the Application(s). Licensing and other
fees will be based on the length and complexity of the Program, special
software, storage and other special services required. WINS shall invoice
LICENSEE directly and LICENSEE agrees to pay such invoice upon receipt. For the
purposes of this Agreement the term "Miscellaneous Expenses" shall also include
but not be limited to transcription fees, consultation, unique software
development, script writing, production fees, and all similar direct third party
charges and expenses.
G. Monthly Minimums. LICENSEE Guarantees that the Program will
generate a minimum amount of revenues andlor transactions per month as set forth
in the Application. If the Pro-ram fails in any month to generate the minimum
Guaranteed revenues and/or transaction fees, LICENSEE shall pay to WINS a sum
equal to the amount specified therefore in the Application for the difference
between the number of transactions and/or revenue generated and the number of
transactions and/or revenues Guaranteed in the Application. In the alternative
or in addition to WINS charging LICENSEE the Guaranteed monthly minimum
transactions and/or revenues WINS may charge LICENSEE a monthly flat access fee
as set
H. Interest. All invoices sent by WINS to LICENSEE shall
accrue interest at the rate of ten percent (10%) per annum, or the highest legal
rate permitted by law, whichever is the lesser rate, if payment is not made in
accordance with the terms of this Agreement.
5. Operation of the Service Bureau.
A. Underlying Telecommunication and Network Service Providers.
This Agrcement is and shall be subordinate to the terms and
conditions of WINS underlying telecommunication and network
service providers and the parties hereto are bound by the
terms and conditions of all agreement between WINS and its
telecommunication and network service providers. WINS shall
be entitled to chance it telecommunication and/or network
service providers from time to time as WINS deems
appropriate and LICENSEE agrees to be bound by the terms of
any agreement reached by WINS with any telecommunication
and/or network service provider.
B. Approval of Programming Content. WINS shall have the right
to approve all information and transcripts which LICENSEE submits for
programming into the Service Bureau and to refuse to pro-ram material and c
information which is pornographic, racist, sexist, or otherwise discriminatory,
in violation of federal, state or local laws, inconsistent with the purposes of
this Agreement, in conflict with WINS's obligations to its Carriers or
incompatible with WINS's technical and functional capabilities.
WINS is under no obligation to make the Service Bureau
available or otherwise provide a License and/or services hereunder in connection
with any Program it considers to be, or if providing the Service Bureau or such
services would be, in violation of any federal, state, or local law or
regulation or any interpretation thereunder by a governmental or judicial
authority having jurisdiction.
LICENSEE agrees and acknowledges that the License and services
to be provided by WINS make use of common Carriers and ancillary services which
are subject to and governed by applicable Federal Communications Commission
(FCC) policies, rules, and regulations, tariffs filed with the FCC by common
carriers, and other governing judicial, legislative and regulatory authority, in
addition to all other obligations of WINS to its telecommunication carriers
and/or network service providers.
C. Tariffed Services. The services provided to LICENSEE
pursuant to this Agreement are subject to any and all tariff provisions related
to such services, to the extent tariffs and/or laws are imposed. Applicable
tariffs and/or laws shall control over any conflicting provisions of this
Agreement. 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.
D.Demand Capacity. The Service Bureau employs technology which
allows many Pro-rams to be accessed over the Internet or through the network.
THE EXACT CAPACITY AT ANY GIVEN TIME IS NOT PREDICTABLE BY WINS AND SUBJECT TO
PEAK DEMANDS CREATED BY EXTERNAL EVENTS. LICENSEE must contract/purchase from
WINS's installation of a special "dedicated" access if the Program(s) to be
Licensed by LICENSEE require Guaranteed minimum capacity. Dedicated capacity
arrangements are custom priced, and if applicable, will be outlined in the
Application(s).
6. Exclusivity. LICENSEE agrees that during the term of this
Agreement, WINS shall be the sole supplier of any Programs as
outlined in the Application/Exhibits. Furthermore, if LICENSEE
desire to implement any similar programs not outlined in the
Application/Exhibits and LICENSEE receives any written offers
from a third party which can provide the Programs to LICENSEE at
lower rates than LICENSEE would receive from WINS commensurate
with the quality of service, capacity, network size and features
and functional capability of the WINS Service Bureau, LICENSEE
will notify WINS of such offer in writing. WINS shall have
thirty (30) days to match the offer or decline to match such
offer. LICENSEE will not accept such third party offer until
WINS declines or fails to match the offer within the thirty (30)
day period. This provision shall survive termination of this
Agreement for a period of six (6) months.
7. Limitations of Liability. WINS will use reasonable commercial
efforts to maintain the Service Bureau equipment in working order. However, WINS
will not be liable for losses of revenue and/or other damages resulting from a
malfunction,
breakage, failure or disruption of the Service Bureau equipment, hardware and
software, or any act or omission of WINS in connection with the Service Bureau.
In the event of breakage or malfunction of hardware or software, WINS will use
reasonable commercial efforts to correct such breakage or malfunction in
reasonable time at WINS's expense during the term of this Agreement. In no event
however, shall WINS be liable to LICENSEE under this Agreement for any indirect,
special, incidental, consequential or punitive loss or damages of any kind,
including, without limitation, lost profits (whether or not such profits were
foreseeable), by reason of any act or omission by WINS in its performance of
this Agreement.
WINS shall have no liability whatsoever to LICENSEE (i) as a result of
any termination, suspension, delay or disruption of service by any
telecommunication and/or- network providers under color of compliance with
Governing tariffs, laws, rules, regulations, or agreements or (ii) as a result
of any failure, disruption or malfunction of an telecommunications and/or
network providers, facility or equipment beyond WINS's reasonable control,
whether or not attributable to one or more telecommunication and/or network
providers.
Force Majeure. WINS's delay in, or failure of, performance under this
Agreement shall be excused where such delay or failure is caused by an act of
God, fire or other catastrophe, electrical, computer or mechanical failure, work
stoppage, sabotage, delays, or failure to act of any telecommunication and/or
network provider or agent, regulatory restrictions or any other cause beyond
WINS' direct control.
WINS, ITS EQUITY OWNERS, SUBCONTRACTORS, AGENTS, SUPPLIERS AND
TELECOMMUNICATION AND NETWORK SERVICE PROVIDERS MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR SUITABILITY FOR ANY PROGRAM OR FOR THE USERS OF ITS SERVICES OR THE
SERVICE BUREAU.
8. Indemnification.
A. LICENSEE Indemnification. LICENSEE agrees to indemnify and
hold WINS harmless from and against any claims of any nature arising, or
relating to information or content provided by LICENSEE or WINS in connection
with this Agreement, the Service Bureau or any actions, omissions, activities or
statements of LICENSEE in connection with this Agreement, the Service Bureau,
WINS or the Pro-ram(s). Not in limitation of the foregoing, LICENSEE shall
indemnify WINS from persons claiming to have received inaccurate, illegal or
misleading information, or to have won a prize, or persons who claim to be
damaged in connection with a promotion, information that violates any federal,
state or local laws including copyright, service mark, oi. trademark violations,
any information or other activity initiated by or on behalf of LICENSEE.
LICENSEE agrees to defend and indemnify WINS and hold WINS harmless from any and
all claims, actions, damages, losses and expenses arising directly or indirectly
from, or primarily attributable to, LICENSEE's products, services, or other
information provided to customers, and any promotion, advertising or other sales
materials or events sponsored by LICENSEE including all libel and slander.
LICENSEE shall indemnify WINS from all claims and damages resulting from
LICENSEE's failure regarding disclosures or any other compliance of federal,
state, or local laws including any regulations promulgated by the Federal Trade
Commission.
B. Indemnification Costs. Indemnification shall include all
costs of defense, including attorney's fees, claims, damages or any other losses
or expenses incurred in connection with any claim covered.
9. Confidentiality. LICENSEE acknowledges that the Program(s),
flowcharts and specification material, intellectual property, enabling software,
reports, Scripts, programming and related information of the Service Bureau
(collectively "Confidential Information") is proprietary and Confidential
Information and tile sole property of WINS. LICENSEE agrees to keep the
Confidential Information confidential, and to restrict its use solely to the
purposes expressed in this Agreement.
10. Ownership of Intellectual Property. WINS shall retain title to all
applications), Program(s), WINS's Confidential Information, enabling software
and technology used or developed in connection with the Program(s) or Service
Bureau. This Agreement does not grant or confer to LICENSEE anything, more than
the Limited License to use the Service Bureau, as outlined in the Applications.
LICENSEE does not have any other right to use or to allow or permit third
parties to use WINS's proprietary technology, applications, Program(s),
Confidential Information, enabling, software, trademarks, servicemarks, or
patents developed in connection with the Service Bureau, any Program(s) or any
other intellectual property of WINS.
11. Term and Termination. This Agreement shall he valid for a term of
five (5) years from its date unless terminated as set forth below.
After the expiration of the original five (5) year term of this
Agreement, the Agreement will automatically be renewed on a year to
year basis until terminated by either party with ninety (90) days
written notice.
A. Cause. Each party shall have the right to terminate this
Agreement and/or any Exhibit to this Agreement upon
thirty (30) days written notice to the other party,
absent cure, for the following reasons:
(1) the other party breaches any material provision
of this Agreement or any Exhibit
(2) WINS determines, in its sole judgment, that
negative public controversy of a material
magnitude has resulted from LICENSEE's
information programmed into the Service
Bureau's ability to do business, and/or
(3) telecommunication and/or network services cease
for any reason to be available for such Program(s).
B. Application. If any representation contained in any
Application/Exhibit was untrue at the date made, or becomes untrue at a
subsequent time, WINS shall have the option to terminate this Agreement and/or
any Exhibit to this Agreement, immediately, upon written notice.
C. At Will. Either party may terminate this Agreement and/or
any Exhibit upon one hundred and eight days ( 180) days written notice.
12. Miscellaneous. The following provisions are hereby a-reed to:
A. Venue and Controlling Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Texas.
Venue for all purposes shall lie in Harris County, Texas.
B. Amendment. This Agreement with its executed Exhibit(s)
constitutes the entire agreement between the parties
concerning the subject matter herein. This Agreement
and the Exhibits may be modified only by written
instrument executed by all the parties hereto making
reference to this Agreement or a specific Exhibit.
C. Notice. All notices required hereunder shall be sent to the
following addresses:
To WINS: World Innovation Netcomm Services, Inc.
831 Lancaster Dr. NE, Suite 209
Salem, OR 97301
To LICENSEE: At the address set forth in the Application
Either party shall be entitled to chance their address for
notification purposes by written notice to the other party sent by certified
mail, return receipt requested.
Notice shall be deemed effective upon hand-delivery or after
three (3) days from deposit in the U.S. Mails, certified return receipt
requested, postage prepaid and properly addressed.
D. Headings. All headings herein are for ease of reference
only and shall not be construed to limit or modify any provisions hereof.
E. Assignment. Neither party can assign its rights or
obligations under this Agreement without the prior
written consent of the other party, except either party
may assign this Agreement to a present or future
subsidiary, parent or affiliate, or assign its right to
receive payment.
F. Attorney Fees. If any action, at law or in equity, is
necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall he entitled to reasonable attorney's
fees, court costs, investigation costs and other necessary disbursements in
addition to any other relief to which it may be entitled.
G. Severability. Any provision of this Agreement which is
found to be contrary to law, invalid or unenforceable by
a court of competent jurisdiction shall be ineffective to
the extent of such invalidity, and shall have no effect
on the remaining Sections of the Agreement.
H. Waiver. All waivers hereunder must be made in writing and
failure at any time to require the other party's
performance of any obligation under this Agreement shall
not affect the right subsequently to require performance
of that obligation.
1. Relationship Between The Parties. This Agreement is not
meant to be a joint venture, partnership, or franchise but the relationship
between the parties is that of independent contractors. It is clearly the
intention between the parties to structure this Agreement so that the granting
of the rights reflected therein will not constitute the granting of a
"franchise", "partnership", or "joint venture" as said terms are defined by any
federal or state law, rule, guideline or case law. LICENSEE expressly agrees
that it is not a franchises, fiduciary agent, partner, joint venturer of or with
WINS, or the like, and that LICENSEE is an independent contractor as to WINS.
LICENSEE represents to WINS that LICENSEE has sought legal counsel of its own
choice in seeking and actually receiving legal advice that supports the
agreement and representations of LICENSEE made herein.
IN WITNESS WHEREOF, the undersigned have hereunto set their respective
hands as of the date first set forth above.
Colin Peter Gervaise-Brazier
Chief Executive-Officer
Rider to WINS Application/Exhibit - WINS License and Service Bureau Agreement
For and in consideration of covenants outlined in the Agreement of which this
Rider is a part, including WINS receipt of three million five hundred thousand
(3,500,000) free trading shares in GS Telecom Limited, WINS agrees to provide a
License to the ATTM Card as follows:
The Program known as the ATTM Card will initially contain the following
functions and features. All future functions and features that may be added to
the ATTM Card, if applicable, will be addressed by separate agreement between
the parties.
ATTM/Asset Transfer Teleminute Manager. Universal Prepaid phone card
that converts telephone minutes into purchases and cash withdrawal and
utilizes the functions of the ATTM technology worldwide through one
central command center for the processing and accounting of all ATTM
transactions.
WINS will provide the following License:
1. The General Marketing Exclusive Rights to utilize the ATTM Card in Europe,
provided however, that WINS and it's other third party licensees will
maintain the ongoing unrestricted right to market and sell the ATTM Card
on a vertical market basis within Europe. By way of example, WINS and/or
its third party licensees will not have the right to market and promote the
ATTM Card to the general public through radio, TV, newspaper, outdoor or
the like, however, WINS and/or its third party licensees will have the
right to promote to vertical markets utilizing direct mail/email campaigns,
web sites or other vertical marketing means. Notwithstanding the forgoing,
LICENSEE will maintain the right to receive twenty percent (20%) of all
transactional revenues that may be produced through the ATTM Card from
all ATTM Cards that may be utilized within Europe.
2. A Non-Exclusive License to sell and market the ATTM Card worldwide,
provided however, LICENSEE agrees not to promote and market the ATTM Card
in any market area outside of Europe via television, radio, newspapers or
outdoor or the like. LICENSEE will have the right to market and promote
the ATTM Card to vertical markets worldwide by utilizing direct mail/email
campaigns or web sites. Notwithstanding the forgoing, LICENSEE understands
that LICENSEE will not receive any transactional revenues when any ATTM
Card is utilized outside of Europe. Notwithstanding the forgoing, LICENSEE
may receive the twenty percent (20%) of the transactional revenues, outside
of Europe, that LICENSEE may generate utilizing e-Commerce over the
Internet, provided however, that LICENSEE's right to receive said twenty
percent (20%) of the transactional revenues that LICENSEE may generate,
outside of Europe, utilizing e-Commerce over the Internet, is subject to
LICENSEE not infringing on any other rights granted by WINS, from time to
time, to third parties.
Should there become any marketing channel conflicts between the LICENSEE and
WINS (including its third party licensees), LICENSEE shall immediately notify
WINS in writing. WINS will investigate the circumstances and be the final judge
and arbitrator in all disputes concerning marketing channel conflicts and will
notify LICENSEE in writing of its final determination.
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Licensing Fees:
1. For ten dollars ($1 0) and other good and valuable consideration, the
receipt of which is hereby acknowledged, sufficient and confessed,
LICENSEE has hereby sold to WINS, three million five hundred thousand
(3,500,000) free trading shares of GS Telecom Limited. In this regards,
LICENSEE agrees to immediately instruct it's legal counsel and transfer
agent to cause to have said shares immediately delivered to WINS.
2. WINS will be permitted to retain eighty percent (80%) of all transaction
fees which may be generated through the use of the ATTM Card in Europe.
WORLD 1NobVATION NETCOMM SERVICES, INC.
By: ------------------------------
Marvin--Stadeli Date
Executive Vice President
Gerrvaise - Brazier Date
Chief Executive Officer
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