Mail Marketing Management Agreement - Business Executive Services Inc. and Telco Billing Inc.
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BUSINESS EXECUTIVE SERVICE, INC.
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BUSINESS INCUBATION & LEASING SPECIALIST
MAIL MARKETING MANAGEMENT AGREEMENT
THIS MAIL MARKETING MANAGEMENT AGREEMENT (the "Agreement") is made this 1th
day of November, 2001 (the "Effective Date"), by and between Business Executive
Services, Inc., a Arizona corporation whose address is 4840 E. Jasmine Street,
Suite 110, Mesa, Arizona 85205 ("Consultant") and Telco Billing, Inc., an
Nevada corporation with its offices located at 4840 East Jasmine Street, Suite
105, Mesa, Arizona 85205 (the "Company").
WHEREAS, Consultant has experience in mail marketing, invoicing and
compliance mailing.
WHEREAS, the Company desires to retain Consultant to advise and assist the
Company in such matters on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Consultant agree as follows:
1. ENGAGEMENT.
The Company hereby retains Consultant, effective as of the date first
written above (the "Effective Date") and continuing until termination, as
provided herein, to provide the Company with the following services:
Consultant will provide scheduling and completion of all outgoing mail.
Company will provide Consultant with all of the hardware necessary for
Consultant to perform Consultant's duties.
2. TERM.
This Agreement shall have an initial term of one (1) year (the "Primary
Term"), commencing with the Effective Date. At the conclusion of the Primary
Term, this Agreement will automatically be extended on an annual basis (the
"Extension Period") unless Consultant or the Company shall deliver to the other
party written notice terminating the Agreement. Any notice to terminate given
hereunder shall be in writing and shall be delivered at least thirty (30) days
before the end of the Primary Term or any subsequent Extension Period.
3. TIME AND EFFORT OF CONSULTANT.
Consultant shall allocate time, as it deems necessary to provide the
Services. The particular amount of time may vary from day to day or week to
week. However, it is expressly understood that
Mail Marketing Agreement between
Business Executive Service, Inc. & Telco Billing, Inc.
November 1, 2001
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Consultant is not billing Company for the time performed but rather is billing
Company based on the number of mail pieces sent each year. Additionally, in the
absence of willful misfeasance, bad faith, or reckless disregard for the
obligations or duties hereunder by Consultant, Consultant shall not be liable to
the Company or any of its shareholders for any act or omission in the course of
or connected with rendering the Services, including but not limited to losses
that may be sustained in any corporate act in any subsequent Business
Opportunity (as defined herein) undertaken by the Company as a result of advice
provided by Consultant.
4. COMPENSATION.
The Company agrees to pay Consultant a fee for the Services ("Consulting Fee")
as follows:
Consultant shall be paid by Company monthly on the 1st of the month. The rate
shall be $.015 per mail piece sent based off the yearly forecast.
Fee based on the projected mailings attached & provided by company. Company
shall be billed based on the 12-month average in all cases not to be below a fee
of $15,750. Consultant shall provide a quarterly accounting of usage to
company.
A late fee of 1.5% will be charged on any payments more than 10 days late.
Failure to pay the payment and/or late payments when due can subject the Company
to cancellation by Consultant hereunder. If this contract is canceled due to
non-payment then Consultant will be eligible for expenses equal to 33% of the
amount outstanding for collection costs as well as a termination fee equal to
one months billing (at the pervious month's rate).
5. COSTS AND EXPENSES.
All third party and out-of-pocket expenses incurred by Consultant in the
performance of the Services shall be paid by the Company, or Consultant shall be
reimbursed if paid by Consultant on behalf of the Company, within ten (10) days
of receipt of written notice by Consultant, provided that the Company must
approve in advance all such expenses in excess of $1,000 per month.
6. PLACE OF SERVICES.
The Services provided by Consultant hereunder will be performed at
Consultant's offices except as otherwise mutually agreed by Consultant and the
Company.
7. INDEPENDENT CONTRACTOR.
Consultant will act as an independent contractor in the performance of its
duties under this Agreement. Accordingly, Consultant will be responsible for
payment of all federal, state, and local taxes on compensation paid under this
Agreement, including income and social security taxes, unemployment insurance,
and any other taxes due relative to Consultant's Personnel, and any and all
business license fees as may be required. This Agreement neither expressly not
impliedly creates a relationship of principal and agent, or employee and
employer, between Consultant's Personnel and the Company Neither Consultant nor
Consultant's Personnel are authorized to enter into any agreements on behalf of
the Company. The Company expressly retains the right to approve, in its sole
discretion, each Asset Opportunity or Business
Opportunity introduced by Consultant, and to make all final decisions with
respect to effecting a
Mail Marketing Agreement between
Business Executive Service, Inc. & Telco Billing, Inc.
November 1, 2001
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transaction on any Business Opportunity.
8. NO AGENCY EXPRESS OR IMPLIED.
This Agreement neither expressly nor impliedly creates a relationship of
principal and agent between the Company and Consultant, or employee and employer
as between Consultant's Personnel and the Company.
9. TERMINATION.
The Company and Consultant may terminate this Agreement before the
expiration of the Primary Term upon thirty (30) days written notice, so long as
termination is with mutual written consent. Absent mutual consent, and without
prejudice to any other remedy to which the terminating party may be entitled (if
any), either party may terminate this Agreement with thirty (30) days written
notice under the following conditions:
A. By the Company.
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(i). If during the Primary Term of this Agreement or any Extension
Period, Consultant is unable to provide the Services as set
forth herein for thirty (30) consecutive business days because
of illness, accident, or other incapacity of Consultant's
Personnel; or,
(ii) If Consultant willfully breaches the duties required to be
performed hereunder, or,
B. By Consultant.
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(i). If the Company breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii). If the Company ceases business or, other than in an Initial
Merger, sells a controlling interest to a third party, or
agrees to a consolidation or merger of itself with or into
another corporation, or enters into such a transaction outside
of the scope of this Agreement, or sells substantially all of
its assets to another corporation, entity or individual
outside of the scope of this Agreement; or,
(iii). If the Company, subsequent to the execution hereof, has a
receiver appointed for its business or assets, or otherwise
becomes insolvent or unable to timely satisfy its obligations
in the ordinary course of business, including but not limited
to the obligation to pay the Consulting Fee; or,
(iv). If the Company, subsequent to the execution hereof; institutes
or makes a general assignment for the benefit of creditors,
has instituted against it any bankruptcy proceeding for
reorganization or rearrangement of its financial affairs,
files a petition in a court of bankruptcy, or is adjudicated a
bankrupt; or,
(v). If any of the disclosures made herein or subsequent hereto by
the Company to Consultant are determined to be materially
false or misleading.
Mail Marketing Agreement between
Business Executive Service, Inc. & Telco Billing, Inc.
November 1, 2001
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12. INDEMNIFICATION.
Subject to the provisions herein, the Company and Consultant agree to
indemnify, defend and hold each other harmless from and against all demands,
claims, actions, losses, damages, liabilities, costs and expenses (including
without limitation, interest, penalties and attorneys' fees and expenses)
asserted against or imposed or incurred by either party by reason of or
resulting from any action by (or the breach of any representation, warranty,
covenant, condition, or agreement by) the other party to this Agreement
13. REMEDIES
Consultant and the Company acknowledge that in the event of a breach of
this Agreement by either party, money damages would be inadequate, and the
non-breaching party would have no adequate remedy at law. Accordingly, in the
event of any controversy concerning the rights or obligations under this
Agreement, such rights or obligations shall be enforceable in a court of equity
by a decree of specific performance. Such remedy, however, shall be cumulative
and nonexclusive, and shall be in addition to any other remedy to which the
parties may be entitled.
14. MISCELLANEOUS.
A. Subsequent Events Consultant and the Company each agree to notify the
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other party if, subsequent to the date of this Agreement, either party
incurs obligations which could compromise its' efforts and obligations
under this Agreement.
B. Amendment This Agreement may be amended or modified at any time and in
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any manner only by an instrument in writing executed by the parties
hereto.
C Further Actions and Assurances. At any time and from time to time,
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each party agrees, at its or their expense, to take actions and to
execute and deliver documents as may be reasonably necessary to
effectuate the purposes of this Agreement.
D. Waiver. Any failure of any party to this Agreement to comply with any
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of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed. The failure
of any party to this Agreement to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a
waiver of any such provision or a waiver of the right of such party
thereafter to enforce each and every such provision. No waiver of any
breach of or noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance
E. Assignment Neither this Agreement nor any right created by it shall be
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assignable by either party without the prior written consent of the
other.
F. Notices. Any notice or other communication required or permitted by
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this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party, when
deposited in the United States mail for transmittal by certified or
registered mail, postage prepaid; when deposited with a public
telegraph company for transmittal; or when sent by facsimile
transmission, provided that the communication is addressed:
Mail Marketing Agreement between
Business Executive Service, Inc. & Telco Billing, Inc.
November 1, 2001
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(i) In the case of the Consultant:
Business Executive Services, Inc.
4840 East Jasmine Street, Suite 110
Mesa, Arizona 85205
Telephone: (480) 860-0011
Facsimile: (480) 860-0800
Attention President
(ii) In the case of the Company:
Telco Billing, Inc.
4840 East Jasmine Street, Suite 105
Mesa, Arizona 85205
Telephone: (480) 654-9646
Facsimile: (480) 654-9727
Attention: President
or to such other person or address designated in writing by the
Company or Consultant to receive notice.
G Headings The section and subsection headings in this Agreement are
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inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
H Governing Law This Agreement was negotiated in and is being contracted
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for in Arizona, and shall be governed by the laws of the State of
Arizona, and the United States of America, notwithstanding any
conflict-of-law provision to the contrary. The parties hereby consent
to the personal jurisdiction of the courts located in the State of
Arizona.
I. Binding Effect. This Agreement shall be binding upon the parties
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hereto and inure to the benefit of the parties, their respective
heirs, administrator, executors, successors, and assigns.
J. Entire Agreement. This Agreement contains the entire agreement between
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the parties hereto and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the
subject matter of this Agreement. No oral understandings, statements,
promises, or inducements contrary to the terms of this Agreement
exist. No representations, warranties, covenants, or conditions,
express or implied, other than as set forth herein, have been made by
any party.
K. Severability. If any part of this Agreement is deemed unenforceable,
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the balance of the Agreement shall remain in full force and effect.
L. Counterparts. A facsimile, telecopy, or other reproduction of this
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Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument, by one or more parties
hereto and such executed copy may be delivered by facsimile or similar
Mail Marketing Agreement between
Business Executive Service, Inc. & Telco Billing, Inc.
November 1, 2001
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instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen. In this event,
such execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any party hereto, all
parties agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
M. Time is of the Essence. Time is of the essence of this Agreement and
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of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date above
written.
THE "CONSULTANT" THE "COMPANY"
BUSINESS EXECUTIVE SERVICES, INC. TELCO BILLING, INC.
BY: BY:
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Joe Susco, President Angelo Tullo, CEO/President
Mail Marketing Agreement between
Business Executive Service, Inc. & Telco Billing, Inc.
November 1, 2001
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