Solicitation Partnership Agreement - CHG Allied Inc. and EBG Consulting Inc.
Solicitation Partnership Agreement
This Solicitation Partnership Agreement, effectively dated August 4,
2003, is entered into by and between CHG Allied, Inc., a Delaware corporation
(CHGA, or the "Solicitation Partner" or "SP"), whose address is 3081 Holcomb
Bridge Road, C-2, Norcross, GA 30071, and EBG Consulting, Inc., a Nevada
Corporation, (the EBG"), who address is 5080 N. 40th Street, #105, Phoenix,
Arizona 85018, and Telco Billing, Inc., a wholly owned subsidiary of YP Net,
Inc., both Nevada corporations (the "YPNET") whose address is 4840 E. Jasmine
#110, Mesa, AZ 85205 with reference to the following:
1. YPNT is engaged in the provision of internet yellow pages and access,
pursuant to which YPNT mails to potential clients a solicitation in the form of
a solicitation check, which, if cashed or deposited, signs that entity up for
Internet Yellow Page / internet services / telephony services provided by YPNT.
2. SP is engaged in business as a marketer of access to various types of
medical practioners, and as such maintains accurate lists of its [associates,
member/shareholders/clients, etc. (the "Recipients") which SP regularly mails to
and believes would be interested in and would benefit from YPNT services.
3. EBG is engaged in the non-exclusive business of procuring clients for
such services. EBG has introduced the SP to YPNT, and YPNT and SP have agreed as
provided pursuant to the terms of this Solicitation Partnership Agreement, to
include with SP's regular mailings and or to mail YPNT's client solicitation
material to Recipients, substantially in the form of "Exhibit A" hereto (the
"Solicitation Material"), which material included a solicitation check (the
"Solicitation Check"), (collectively the Co-Mailing") which, once cashed or
deposited converts a Recipient to a "Subscriber" by documenting that Recipient's
agreement to as well as subscription for Internet Yellow Page/internet
services/telephony services provided by YPNT, all as more fully set forth in the
Solicitation Material.
In consideration of the mutual premises and covenants herein contained, the
parties hereto agree as follows:
I. Obligations of SP:
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a. the SP agrees to provide YPNT with a database of the intended Recipients
of the Co-Mailing, including relevant contact information so that YPNT can
print, clear and reconcile cashed solicitations checks in order to identify and
sign up new customers for YPNT services. YPNT will not otherwise use or disclose
such database to third parties except as required to perform its duties
according to this agreement or as otherwise authorized by the SP in writing.
b. SP may provide endorsements for the YPNT and or YPNT's service, as
reasonable requested by YPNT, which may or may not be included in any Co-Mailing
at YPNT's sole discretion.
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c. SP may include the Solicitation Material and endorsement if any in SP's
regular mailings to Recipients or as a separate mailer as mutually agreed to in
writing.
d. The SP shall bear all costs of mailings ("COM") for Co-Mailing except as
noted in section II (a) below.
II. Obligations of YPNT:
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a. YPNT shall only be responsible for (i) the payment of all the printing
of Solicitation Material, (ii) the payment of all amounts necessary to clear the
Solicitation Checks as they are presented, and (iii) any increase in postage
caused by the additional weight of the inclusion of Solicitation Material in the
Co-Mailing.
b. YPNT agrees to provide to the SP, on a monthly basis no later than the
15th day of each month, a written statement (the "Monthly Report") indicating
all Recipients who have cashed and/or presented such YPNT checks for payment and
who have become subscribers for services of YPNT (hereinafter, a "Subscriber"),
canceled service, received refunds or adjustments from YPNT as well as the funds
collected by YPNT from Subscribers during the previous month.
c. YPNT agrees to pay the SP on a monthly basis, a total of seventy-five
cents ($0.75)_____ (the "Override Fee") per each individual paying Subscriber
who from which YPNT has collected funds as set forth in the Monthly Report. Any
payments required to be made to EBG shall be borne by YPNT and is subject to a
separate agreement.
d. YPNT has the right to reject any database or portion thereof of
Recipients, as well as t6o terminate any relationship with any Subscriber, as
well as to refund any amount to any Subscriber at YPNT's sole and absolute
discretion, and shall deduct such Override Fees already paid pertaining to such
refund from the Override Fees then due or that may become due to SP and or EBG.
e. YPNT shall be required to pay an Override Fee on any funds collected from
a Subscriber for up to a maximum of 36 months per subscriber.
III. Miscellaneous:
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a. As between YPNT and the SP, this Solicitation Partnership Agreement may
be terminated at any time by YPNT or the SP, it being acknowledged and agreed
however, that such termination shall not alter or amend the obligation to pay
the Override Fee as provided for in herein.
b. This agreement terminates in its entirety sixty (60) months after its
effective date, except as described in number 2.e above.
c. Each party hereto warrants and represents that:
(i) They are authorized, empowered and able to enter into and fully
perform the obligations hereunder; and
(ii) Neither this Agreement nor the fulfillment thereof shall infringe
upon the personal or property rights of any person, firm or corporation;
(iii) The services to be rendered hereunder shall not be in violation
of any law, regulation or third party agreement
d. The following additional provisions shall apply:
(i) This Agreement shall be governed by and construed in accordance
with the laws in force in Arizona and the parties hereby agree to submit to the
courts located in the County of Phoenix, Arizona.
(ii) All notices and other communication required or permitted to be
given under this Agreement shall be in writing and shall be effective (a) when
delivered personally; (b) when transmitted by electronic facsimile device or
electronic mail; (c) upon receipt of such notice by Federal Express or other
overnight delivery services; or (d) upon deposit in the U.S. Mail, certified or
registered mail, postage prepaid and return receipt requested, addressed to the
other party at its address set forth below, unless by notice a different address
shall have been designated for giving notice hereunder.
For YPNT:
Licensee: YP Net, Inc.
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Address: 4840 E. Jasmine #110
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City: Mesa
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State/Zip Code: AZ, 85205
Attn: Greg Crane - Director
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And to
Licensee: Law Offices of Lewis & Rocca, LLP
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Address: 40 N. Central Ave.
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City: Phoenix
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State/Zip Code: AZ, 85004
Attn: Randy Papetti
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For EBG:
EBG Consulting, Inc.
5080 N. 40th Street, #105
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Phoenix, Arizona 85018
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Attn: Brad Edson
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And to
Kelly Lytton & Varm
1900 AVE OF THE STARS, Suite 1450
Los Angeles, CA 90067
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Attn: Bruce Varm, Esq.
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For the SP:
CHG Allied, Inc.
3081 Holcomb Bridge Road, C-2
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Norcross, GA 30071
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Attn: G E Spalding
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(iii) This Agreement contains the entire understanding of the parties. This
Agreement may not be changed orally but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification,
amendment, extension or discharge is sought.
(iv) All parties shall defend, indemnify and hold the other parties, their
licenses and assigns and the directors, officers, employees and agents of the
foregoing, harmless from all claims, liabilities, damages and costs (including
reasonable legal feels and court costs) arising form any breach or alleged
breach by such party of any representation, warranty or agreement made by such
party hereunder or from any use of the materials supplied by such party
hereunder.
(v) All parties warrant to the other that they will not be responsible for
representations, warranties or statements made to other third parties whether as
part of this agreement or in reference to the other in any matter.
(vi) Nothing in this agreement shall be construed as to make any other
party an agent of any other party. The SP acknowledges and agrees that EBG is
not responsible for, and has no obligation, whether express or implied, for the
performance of YPNT under this agreement, including but not limited to, the
payment by YPNT of the Solicitation Checks, or the payment of the Override Fee.
YPNT agrees to indemnify and hold harmless both the SP and EBG from any claims
from any third parties, including any Recipients, relative to any of the matters
covered by this Sponsorship Partnership Agreement caused by a direct result of
YPNT's negligence.
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If any provision of this Agreement is determined to be invalid or unenforceable,
the remaining portions hereof shall not be affected thereby and shall be binding
upon the parties hereto and shall be enforceable as though said invalid or
unenforceable provision were not contained herein.
(vii) Any party may terminate this Agreement immediately upon notice in the
event that another party (a) makes a general assignment for the benefit of
creditors, (b) files a voluntary petition of bankruptcy, suffers or permits the
appointment of a bankruptcy receiver for its business or assets, (c) becomes
subject to any proceedings under any bankruptcy or insolvency law where such
proceeding has not been dismissed within sixty (60) days or (d) has wound up or
liquidated, voluntarily or otherwise.
(viii) The parties acknowledge that it will be necessary to provide access
to confidential and/or proprietary information ("Proprietary Information") to
each other in connection with this Agreement. Proprietary Information shall be
clearly identified or labeled as such by the disclosing party at the time of
disclosure. Each party shall protect the confidentiality of the Proprietary
Information of the other party in the same manner as it protects its own
proprietary information of like kind. The parties shall return all Proprietary
Information of the other upon the earlier of a request by the disclosing party
or upon termination of the Agreement. Neither party shall reproduce, disclose or
use the Proprietary Information of the other without written authorization of
the other except in performing its obligations under this Agreement or as
required by law. The terms and conditions of this Agreement shall be considered
Proprietary Information and shall not be disclosed by either party to any third
party. The limitations on reproduction, disclosure, or use of Proprietary
Information shall not apply to Proprietary Information which (a) was develop3ed
independently by the party receiving it; (b) was lawfully received from other
sources without an obligation of confidence; (c) is published or otherwise
disclosed to others by the disclosing party without restriction, or otherwise
comes within the public knowledge or becomes generally known to the public
without breach of this Agreement. CHGA's networks of providers, comprising a
part of CHGA's Proprietary Information, as disclosed to YPNET and EGB from time
to time includes, for EGB and YPNET's befit and use, providers in each of the
States of the United States and in Puerto Rico. They are national networks, and
thus the scope of the restrictions contained in this paragraph are national in
scope, including Puerto Rico. YPNET and EGB agree that these restrictions are
reasonable as to territory and subject matter addressed give the networks of
providers and pricing structure it and its Members will receive as a result of
this agreement.
(ix) All parties hereto acknowledge that, in the event of a breach of the
provisions contained in either of the two preceding paragraph, the amount and
extent of any resulting damage to the other party would be difficult, if not
impossible, to ascertain. Accordingly, the offended party may enforce its
rights under such paragraph by seeking from any court of competent jurisdiction
an injunction that prohibits the alleged offending party from engaging in any of
the activities or practices which are deemed a breach of such provisions. The
parties agree that, in any such proceeding, the offended party shall not be
required to establish any irreparable harm in order to be entitled to
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injunctive relief. Upon finding that a party has breached the applicable of the
foregoing two paragraphs of this Agreement, the court shall conclusively presume
that the other party has suffered irreparable harm sufficient for the entry of
an injunction, and subsequent to such injunction either party may audit the
books and records of the other party if necessary as part of a determination of
monetary damages. In the event that an unsupported action is brought hereunder,
the party bringing the action is liable for payment of the legal costs of
defense incurred by the party improperly charged. The terms of this paragraph
shall survive the termination of this Agreement, regardless of the reason for
such termination.
(x) It is expressly understood and agreed that, notwithstanding the title
of this agreement, the relationship of each party to each other is that of an
independent contractor and that neither this Agreement nor the services to be
rendered hereunder shall for any purpose whatsoever or in any way or manner
create, expressly or by implication, any employer-employee relationship,
partnership, joint venture or other relationship other than that of independent
parties contracting with each other solely for the purpose of carrying out the
provisions of the Agreement. Accordingly, each party hereto acknowledges and
agrees that he shall not be entitled to any benefits provided by any other party
to their respective employees or affiliates (including, without limitation, such
items as health and disability benefits). In addition, each party hereto shall
have sole and exclusive responsibility for the payment of all federal, state and
local income taxes, for all employment and disability insurance and for Social
Security and other similar taxes with respect to any compensation provided by
hereunder. Each party further agrees that if such party pays or becomes liable
for such taxes or related civil penalties or interest as a result of a failure
another party to pay taxes or report same, the party failing to pay such taxes
shall indemnify and hold the party or parties paying such taxes harmless for any
such liability. Each party hereto expressly assumes and accepts all
responsibilities that are imposed on independent contractors by any statute,
regulation, rule of law or otherwise. No party hereto is authorized to bind any
other party hereto, or to incur any obligation or liability on behalf of any
other party, except as expressly set forth in writing.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
9/22/03
YP Net, Inc., By /s/ DeVal Johnson, Director
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EBG Consulting Inc., By /s/ Stuart Benson, President
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CHG Allied, Inc., By /s/ G E Spalding, CEO
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