Prepared by MerrillDirect





 


Exhibit 10.38


 


MARKETING AGREEMENT


            This
MARKETING AGREEMENT  (the “Agreement”)
is entered into on this 27th day of September 2001, by and between
Speech Design International Inc. (“SDI” or the "Company") and
2.T-Telematik Venture Beteiligungsgesellschaft mbh individually and together
with any affiliate, ”T-Venture”) 


            WHEREAS, the Company and its
subsidiary, Speech Design GmbH, is in the business, of providing unified
messaging services and products, and


            WHEREAS, T-Venture is desirous of
using its relationships and experience to further the Company’s marketing
efforts for the sale of unified messaging service, and in particular, the sale
of such services to customers that would provide substantial market impact for
the Company’s reputation and industry visibility: and 


            WHEREAS, the Company has agreed that
to recognize a successful marketing effort by T-Venture, the Company would
issue as compensation to T-Venture an aggregate of 100,000 shares of its
authorized but unissued common stock, $.001 par value per share (the
"Common Stock);


            NOW THEREFORE, it is agreed, that;


            1.         Retention.  SDI hereby retains T-Venture, and T-Venture
hereby accepts such retention by SDI in accordance with the terms and
conditions set forth in this Agreement.


            2.         Services.  (a) T-Venture shall use its reasonable
efforts, determined in its sole discretion, to market and arrange for the sale
of Unified Messaging Services to any mobile carrier entity affiliated with
Deutsche Telekom AG, in particular T-Mobile International and any of its
controlled affiliates (the “Prospects”), on such terms and conditions as the
Company shall advise it are available for such transaction. 


 


                        (b)        T-Venture will perform such services
when and as determined solely by it as an independent contractor to, and not as
an agent or employee of SDI, and T-Venture will not have authority to bind SDI
or any of its subsidiaries in respect of any potential sale of Unified
Messaging Services to the Prospects or otherwise.


                        (c)        SDI shall cooperate in the marketing of
the Unified Messaging Services to the Prospects, including the preparation of
marketing, due diligence and pricing-related information about the Unified
Messaging Services and letters of intent and definitive sale agreements
concerning the Unified Messaging Services. 
T-Venture and SDI will share information with each other about potential
purchases by the Prospects and T-Venture will inform SDI of the requests and
proposals of the Prospects for purchase of the Unified Messaging Services.





                        (d)        SDI shall have sole and
absolute discretion with respect to the terms of any letter of intent and
definitive agreement with respect to the sale of Unified Messaging Services,
and may elect to approve or disapprove of any terms of any proposed sale in its
sole discretion.


                        (e)        Prior to
disclosing any confidential information concerning SDI or its subsidiaries or
the SDI Unified Messaging Services, T-Venture shall ensure that the recipient
of such information has signed any confidentiality agreement required by SDI.      


            3.         Term.  The term of this Agreement shall expire on December 31, 2001 (the
"Term"). Notwithstanding the provisions of Section 3, this Agreement
may be terminated at any time by either party immediately upon written notice
to the other party; provided, however that any such termination by SDI shall
not relieve it of the obligation to pay the Marketing Fee set forth below in
the case of a Sales Event.  


            4.         Compensation.  In consideration of the performance by
T-Venture of all its services in connection with this Agreement and the sale of
the SDI Unified Messaging Services, SDI shall pay T-Venture a fee (the
"Marketing Fee") in the event, and only in the event, of a “Sales
Event” (as defined below) in the form of the issuance to T-Venture of an aggregate
of One Hundred Thousand (100,000) fully paid and non-assessable shares of
common stock, $.001 par value per share, of SDI, payable within thirty days of
a Sales Event. . For purposes hereof, a “Sales Event” shall mean the
acceptance, on or before December 31, 2001, by the Company of non-revocable,
non-cancelable orders from the Prospects for unified messaging services which
in the aggregate provide for the purchase of services for which such customers
will pay the Company not less than 2,500,000 Euros. In the event that a
contract or order calls for the Company to provide multiple services or
products, such contract, as nearly as possible will be apportioned by the
Company reasonably and in good faith to calculate for the purpose of this
Agreement, the portion of revenue which is attributable to the purchase of
unified messaging services.


            5.         Non-Exclusive
Arrangement.  T-Venture will
provide the services described herein on a non-exclusive basis and nothing
herein contained shall be construed as prohibiting SDI from engaging other
individuals or entities to market and arrange for the sale of the SDI Unified
Messaging Services, nor shall it be construed as preventing SDI from selling
the SDI Unified Messaging Services independently.  


            6.         Confidentiality.  SDI and T-Venture understand and agree that
in the performance of this Agreement each party may have access to
confidential, nonpublic and/or proprietary information of the other party
(“Confidential Information”).  Confidential
Information does not include information that the recipient can demonstrate (a)
was in recipient’s possession prior to its being furnished under the terms of
this Agreement or is rightfully obtained by recipient from a third party,
provided that the source of that information is not bound by a confidentiality
agreement with or other legal or fiduciary obligation of confidentiality to the
disclosing party, (b) is now, or hereafter becomes, through no act or failure
to act on the part of the recipient, generally known to the public, or (c) is
independently developed by recipient without use of or reference to the
Confidential Information.  Each party
agrees that it will not disclose the Confidential Information to any third
party and will take all necessary steps to maintain the confidentiality and
secrecy of the Confidential Information except as otherwise permitted in this
Agreement.


            7.         Arbitration.  The parties agree that any and all disputes
related to or stemming from this Agreement shall be finally settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association.  The decision
of the arbitrators shall be final and binding and any court with proper
jurisdiction shall be entitled to issue a decree enforcing the arbital award.





 


            8.         Miscellaneous.  This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of both T-Venture and SDI.  If any term or provision of this Agreement
shall be invalid or unenforceable to any extent or in any application, then the
remainder of this Agreement, and any such term or provision except to such
extent or in such application, shall not be affected thereby, and each and
every term and provision of this Agreement shall be valid and enforceable to
the fullest extent and in the broadest application permitted by law.  No waiver of any terms hereof shall be
binding unless and until agreed to in writing by the party to be charged.  This Agreement supersedes all prior
agreements, oral or written, between T-Venture and SDI relating to the subject
matter hereof.  This Agreement shall be
construed and enforced in accordance with the laws of the state of New Jersey.


 


                        The undersigned have
executed this Agreement as of the day and year first written above.


 


	 	SPEECH DESIGN
  INTERNATIONAL INC.
	 	 
	 	By: Kasimir Arciszewski
	 	 
	 	Chief Executive Officer
	 	 
	 	 
	 	2.T-Telematik
  Venture Beteiligungsgesellschaft mbh:
	 	 
	 	/s/