Exhibit 10.1
LEAD REFERRAL AGREEMENT
This Lead Referral Agreement (the "Agreement") is entered into as of December
29, 2005 (the "Effective Date"), by and between InPhonic, Inc., a Delaware
corporation with its principal place of business at 1010 Wisconsin Ave. NW Suite
600, Washington DC 20007 ("InPhonic"), and TelePlus Wireless, Corp., a Nevada
corporation with a place of business at 7575 Route Transcanada Suite 305 St.
Laurent QC H4T 1V6 Canada ("TelePlus").
RECITALS
A. The parties have entered into an Asset Purchase Agreement dated as of
December 29, 2005 (the "Purchase Agreement") and related Promissory Note (the
"Note") pursuant to which InPhonic is selling, and TelePlus is acquiring, the
certain assets of the Liberty Wireless Business (as defined below), the date and
time at which the closing of the Purchase Agreement is to occur being referred
to herein as the "Closing Date."
B. TelePlus and InPhonic's wholly-owned subsidiary, Mobile Technology Services
LLC ("MTS") have entered into a MVNE Services Agreement (as defined below).
C. In connection with, in consideration of, and as a condition precedent to the
closing of the transaction contemplated by the Purchase Agreement and execution
of the MVNE Services Agreement, InPhonic has agreed to provide TelePlus with
weekly Lead Lists (as defined below) under the terms and conditions described
below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and in the Purchase Agreement and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1 "Affiliates" means any corporation directly or indirectly controlling,
controlled by, or under common control with a party to this Agreement, but in
each case only for so long as such ownership or control shall continue to exist.
1.2 "Confidential Information" means all non-public information of either
party that is disclosed to the other party pursuant to this Agreement, in
written form and marked "Confidential," "Proprietary" or similar designation, or
if disclosed orally, the disclosing party shall indicate that such information
is confidential at the time of disclosure and send a written summary of such
information to the receiving party within thirty (30) days of disclosure and
mark such summary "Confidential," "Proprietary" or with a similar designation.
1.3 "Lead List" means a list of specific personal categories data for
United States customers, as set forth on Exhibit A, for customers of InPhonic
who place postpaid orders for wireless phone service through InPhonic's website
for a wireless subscription plan and then InPhonic suspends processing of the
order due to an exception during the risk assessment check.
1.4 "Liberty Wireless Business" means the business of offering wireless
phone accounts to individuals who pay for wireless phone usage.
1.5 "MVNE Services Agreement" means that certain agreement by and between
MTS and TelePlus dated of even date herewith.
2. DELIVERY OF LEAD LISTS.
2.1 Delivery. During the term of this Agreement, InPhonic shall deliver in
electronic format acceptable to TelePlus a Lead List to TelePlus on a weekly
basis in a format that is mutually agreed upon by the parties. The customers
included in each Lead List shall be chosen by InPhonic, in accordance with
mutually determined guidelines which are subject to change from time to time.
The combined Lead Lists for each week shall include information for at least
twenty-five thousand (25,000) customers. TelePlus reserves the right (i) to
advise InPhonic to deliver less than 25,000 leads in any week and (ii)
temporarily suspend delivery of daily leads at anytime during the Agreement.
Notwithstanding the foregoing, initial delivery of the first Lead List shall
occur on February 15, 2006 unless requested sooner by TelePlus. InPhonic agrees
it will migrate from weekly feeds to daily feeds of Lead Lists no later than 31
March 2006.
3. LICENSEE GRANT; OWNERSHIP.
3.1 License Grant, Exclusivity, Preference. Subject to the terms and
conditions of this Agreement, InPhonic hereby grants to TelePlus a non-exclusive
license to use and reproduce the Lead List to market to the listed individuals.
For greater clarity, the names, contact information and other information on the
Lead List are provided exclusively to TelePlus, though InPhonic retains the
right to sell other leads on a non-exclusive basis. InPhonic shall provide Lead
Lists to Teleplus on a preferred basis and in no case shall InPhonic provide
leads to a third party, including any Affiliate of InPhonic, which can
reasonably be considered leads that are preferential to those provided to
TelePlus under this Agreement although in no case shall InPhonic be obliged to
provide leads where a third-party agreement prohibits such activity.
3.2 Prohibitions. TelePlus shall not, directly or indirectly use the Lead
List for any purpose other than the purpose expressly authorized in Section 2.
TelePlus shall not disclose the Lead List to any third parties except third
parties which are subsidiaries of TelePlus Enterprises, Inc. and all such
parties shall only use the Lead List to offer wireless services.
3.3 Proprietary Notices. TelePlus shall not remove, efface or obscure any
copyright, trademark or other proprietary rights notices appearing on the Lead
List.
3.4 Pricing - TelePlus shall pay InPhonic $1.00 for each lead received.
4. PRIVACY.
4.1 Compliance with Laws. InPhonic represents and warrants that at all
times during the term of this Agreement in the delivery of Lead Lists to
TelePlus and the gathering of information contained therein that it (i) complies
with all applicable privacy laws and regulations and contractual obligations
regarding the collection, retention, use and disclosure of personal information
of individuals, (ii) that it has obtained from the customer the right to market
alternate wireless offers to the customer and (iii) that it retains auditable
records of such obtained right or non-restriction to sell the information
contained in the Lead Lists for the period of time mandated by law which may be
subject to change from time to time. InPhonic has customary, industry standard
technological and procedural measures in place to protect personal information
collected from individuals against loss, theft and unauthorized access or
disclosure and does not knowingly target children under the age of thirteen.
5. NO WARRANTY.
5.1 No Warranty. THE LEAD LISTS ARE PROVIDED "AS IS," AND INPHONIC MAKES
NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION OR
CONDUCT WITH TELEPLUS, OR OTHERWISE. INPHONIC SPECIFICALLY DISCLAIMS AND
EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT
LIMITATION OF THE ABOVE, INPHONIC DOES NOT WARRANT THAT THE SOFTWARE IS
ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ANY ERROR WILL BE
CORRECTED, AND MAKES NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM,
INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY.
6. TERM AND TERMINATION.
6.1 Term and Termination. This Agreement shall become effective on the
date first set forth above and shall remain in effect perpetually until
terminated as provided below. If TelePlus defaults in any obligation under this
Agreement or under the Note, and if the default is curable, also fails to cure
such default thirty (30) days after written notice of such default, InPhonic may
immediately terminate and cancel this Agreement and the licenses granted
hereunder upon ten (10) day written notice to TelePlus.
6.2 Automatic Termination. This Agreement shall automatically terminate
ninety (90) days following the termination or expiration of the MVNE Services
Agreement or renewal thereof or any Event of Default under the Note (as defined
therein) unless otherwise agreed upon by the parties
6.3 Effect of Termination. Upon the effective date of any termination of
this Agreement, each party shall return to the other party (or, if requested at
the time of termination, certify in writing to the other party that it has
destroyed) all documents and other tangible items that it or its employees,
contractors and agents have received or created hereunder pertaining, referring
or relating to the Confidential Information of the other party, and erase or
destroy all electronic or magnetic records in computer memory, tape or other
media containing any Confidential Information.
6.4 Survival. The definitions and the rights, duties and obligations of
the parties that by their nature continue and survive shall survive the
termination of this Agreement. The parties acknowledge and agree that all claims
for any breaches or alleged breaches of any covenants contained in this
Agreement shall be subject to the terms and conditions of this Agreement and not
be subject to the time periods, dollar and other limitations set forth in the
Purchase Agreement.
7. CONFIDENTIALITY.
7.1 Obligations. Each party acknowledges that in the course of the
performance of this Agreement, it may obtain the Confidential Information of the
other party. The Receiving Party shall, at all times, both during the Term and
at all times thereafter, to keep in confidence and trust all of the Disclosing
Party's Confidential Information received by it. The Receiving Party shall not
use the Confidential Information of the Disclosing Party other than as necessary
to fulfill the Receiving Party's obligations or to exercise the Receiving
Party's rights under the terms of this Agreement. The Receiving Party shall take
reasonable steps to prevent unauthorized disclosure or use of the Disclosing
Party's Confidential Information and to prevent it from falling into the public
domain or into the possession of unauthorized persons, but in no event shall the
Receiving Party use less care than it would in connection with its own
Confidential Information of like kind. The Receiving Party shall not disclose
Confidential Information of the Disclosing Party to any person or entity other
than its officers, employees and consultants who need access to such
Confidential Information in order to effect the intent of this Agreement and who
have entered into confidentiality agreements which protect the Confidential
Information of the Disclosing Party sufficient to enable the Receiving Party to
comply with this Section 5.1.
7.2 Exceptions. The obligations set forth in Section 7.1 shall not apply
to the extent that Confidential Information includes information which is: (a)
now or hereafter, through no unauthorized act or failure to act on the Receiving
Party's part, in the public domain; (b) known to the Receiving Party without an
obligation of confidentiality at the time the Receiving Party receives the same
from the Disclosing Party, as evidenced by written records; (c) hereafter
furnished to the Receiving Party by a third party as a matter of right and
without restriction on disclosure; (d) furnished to others by the Disclosing
Party without restriction on disclosure; or (e) independently developed by the
Receiving Party without use of the Disclosing Party's Confidential Information.
7.3 Permitted Disclosures. Nothing in this Agreement shall prevent the
Receiving Party from disclosing Confidential Information to the extent the
Receiving Party is legally compelled to do so by any court, governmental
investigative or judicial agency pursuant to proceedings over which such court
or agency has jurisdiction; provided, however, that prior to any such
disclosure, the Receiving Party shall (i) assert the confidential nature of the
Confidential Information; (ii) immediately notify the Disclosing Party in
writing of the order or request to disclose; and (iii) cooperate fully with the
Disclosing Party in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of the compelled disclosure and protecting
its confidentiality.
7.4 Other Permitted Disclosures. Either party may provide a copy of this
Agreement to the following persons and/or entities who are under obligations of
confidentiality substantially similar to those set forth in this Agreement:
potential acquirers, merger partners or investors and to their employees,
agents, attorneys, investment bankers, financial advisors and auditors in
connection with the due diligence review of such party. Either party also may
provide a copy of this Agreement to: (i) the party's accounting firm in
connection with the quarterly and annual financial or tax audits, and (ii) to
the party's outside legal advisors in connection with obtaining legal advice
relating to this Agreement, the relationship established by this Agreement or
any related matters.
8. LIMITATION OF LIABILITY.
8.1 Waiver of Consequential Damages. IN NO EVENT SHALL INPHONIC OR
TELEPLUS HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR
PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF REVENUE, LOSS OF
BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY
REPRESENTATIVE OF INPHONIC OR TELEPLUS HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
8.2 Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM INPHONIC'S
FAILURE TO COMPLY WITH SECTION 4 HEREOF, IN NO EVENT SHALL INPHONIC'S OR
TELEPLUS' LIABILITY UNDER THIS AGREEMENT EXCEED FIVE THOUSAND DOLLARS (USD
$5,000).
8.3 Failure of Essential Purpose. THE LIMITATIONS SPECIFIED IN THIS
AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF
THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
9. INDEMNITY.
Inphonic agrees to indemnity, defend and hold harmless TelePlus, its Affiliates,
officers, directors and employees from and against all claims, liabilities,
damages, costs and expenses (including reasonably attorneys' fees) arising from
or relating to any claim of any third party brought or threatened based on facts
that, if true, would constitute a breach of InPhonic's representations and
warranties in Section 4. Teleplus agrees to give InPhonic prompt written notice
of a claim and reasonably cooperate in the defense of the claim.
10. MISCELLANEOUS.
10.1 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, provided,
however, that TelePlus may not assign this Agreement or any rights or obligation
hereunder, directly or indirectly, by operation of law or otherwise, without the
prior written consent of InPhonic, such consent not to be unreasonably withheld,
and any such attempted assignment shall be void.
10.2 Notices. All notices between the parties shall be in writing and
shall be deemed to have been given if personally delivered or sent by certified
mail (return receipt requested), via a nationally recognized overnight delivery
service, or confirmed facsimile, to the other party's legal department at the
address set forth in this Agreement, or such other address as is provided by
notice as set forth herein. Notices shall be deemed effective upon receipt if
personally delivered, three (3) business days after it was sent if by certified
mail, or delivery service or one (1) business day after it was sent if by
facsimile, provided there is a confirmation of receipt.
10.3 Governing Law; Venue. This Agreement shall be governed by the laws of
the State of Delaware without regard to any conflict-of-laws rules, and the
United Nations Convention on Contracts for the International Sale of Goods is
hereby excluded. The sole jurisdiction and venue for actions related to the
subject matter hereof shall be the federal courts located in the State of
Delaware, and both parties hereby consent to such jurisdiction and venue.
Notwithstanding the foregoing, the parties shall have the right to bring any
action or claim for equitable remedies (including, but not limited to, specific
performance and injunctive relief) in any court having subject matter
jurisdiction throughout the world.
10.4 Severability. All terms and provisions of this Agreement shall, if
possible, be construed in a manner which makes them valid, but in the event any
term or provision of this Agreement is found by a court of competent
jurisdiction to be illegal or unenforceable, the validity or enforceability of
the remainder of this Agreement shall not be affected and the illegal or
unenforceable provision shall be amended to achieve the economic effect of the
original terms. If the illegal or unenforceable provision materially affects the
intent of the parties to this Agreement, this Agreement shall become terminated.
10.5 Waiver. The waiver of, or failure to enforce, any breach or default
hereunder shall not constitute the waiver of any other or subsequent breach or
default.
10.6 Entire Agreement. This Agreement, along with the Exhibits hereto,
sets forth the entire Agreement between the parties with respect to the subject
matter hereof, and supersedes any and all prior or contemporaneous
understandings, proposals, agreements and representations between the parties,
whether written or oral, with respect to such subject matter. This Agreement may
be changed only by written amendment to this agreement signed by the parties.
10.7 Construction. The titles and headings herein are for reference
purposes only and will not in any manner limit the construction of this
Agreement, which will be considered as a whole.
10.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
10.9 Relationship. The relationship between the parties will be that of
independent contractors. Nothing contained herein will be construed to imply a
joint venture, principal or agent relationship, or other joint relationship, and
neither party will have the rights, power or authority to create any obligation,
express or implied, on behalf of the other.
10.10 Attorneys' Fees. In the event any proceeding or lawsuit is brought
by either party in connection with this Agreement, the prevailing party in such
proceeding will be entitled to receive its costs, expert witness fees and
reasonable attorneys' fees, including costs and fees on appeal.
10.11 Recitals. The recitals to this Agreement are considered an integral
part of this Agreement and are hereby incorporated by this reference.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date.
INPHONIC, INC. TELEPLUS WIRELESS, CORP.
By: /s/ Frank C. Bennett III By: /s/ Marius Silvasan
Name: Frank C. Bennett III Name: Marius Silvasan
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Title: President MVNO Services Title: CEO
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EXHIBIT A
Lead List Data
1. Customer Name
2. Customer Address including ZIP Code
3. Customer Contact Information (including telephone numbers and email, if
available).
4. Carrier Choice
5. Rate Plan Selection
6. Handset Model Selection.
7. Accessory selection if applicable
8. Order Date