EXHIBIT 10(e)
CONTRACT OF DISTRIBUTION FOR TELECOR DE
UNEARNED TELETARJETAS DE GATHERED ITS
Of a part, D. Xxxxxxxx Xxxxx, bigger than age, of French nationality, with
residence card ny X-2095069-AND, neighbor of Marbella, acting in name and
representation of ITS, S.L. (from now on ITS), C.I.F.: B-29707585, with home
in Xxxxxx Xxxxxx Xxxxx 00, Xxxx. Marina Marbella, 3a, 29600 Marbella
(Malaga), in their condition of unique Administrator, as it credits by means
of writing of power granted before the Notary of Marbella, X. Xxxxx Maunicio
Xxxxxxx, in date December of 2000, 22 with the I number 5914 of their
protocol.
Of another part, D. Xxxx Xxxxxxx Xxxxxxx Xxxxxxxxx, bigger than age, neighbor
from Madrid, with D.N.I. 51.579.215, acting in name and representation of
Telecor CORP. (from now on The DISTRIBUTOR), cif a/80028731, with home in
Madrid, c / Hermosilla 112, in their quality of Managing Manager,
representation that credits with the seizure writing granted before the
Notary from Madrid D. Luis Colonel of Palm the day February of 1995, 28 with
the I number 888 of their protocol.
THEY MANIFEST
That ITS emits different types of cards prepago of telephone calls and he/she
wants to put in the market the varieties that you/they appear summed up in
the ANNEX I and in the additional ones that can incorporate but it advances
(from now on THE CARDS), through the DISTRIBUTOR that took charge of guarding
in I deposit and/or to buy the cards to ITS for its later commercialization.
That THE DISTRIBUTOR wants to carry out the necessary efforts in the market
to sell the CARDS, for that which will receive in I deposit and/or he/she
bought them to ITS and it marketed them later on using its own distribution
chain and its Points of Sale, keeping the terms and conditions contained in
this agreement.
For it and in consideration of the mutual promises and agreements here
contents, the parts grant the present contract according to the following
ones:
STIPULATIONS
FIRST - OBJECT OF THE CONTRACT
The present contract is bounded to the distribution and commercialization of
unearned phone cards. For it, ITS agrees him to be THE DISTRIBUTOR a non
exclusive distributor of cards call prepago in the whole Spanish Territory
and by means of the established conditions presently contract, as well as the
legal dispositions in vigor that you/they are of application. Nevertheless,
when being an agreement of collaboration, with rights and obligations for
both parts, be rotted to establish modifications in the clauses of the
present contract, as well as to enlarge the object and circumstances that
gave place to the same one.
These CARDS will be given to the DISTRIBUTOR by ITS, initially in I deposit,
and later on by virtue of you order them of order that he/she carries out,
and rot to be used by the final consumers starting from the moment of
beginning of the operability of the system.
The determination of the CARDS object of the present contract, as well as
their specifications, I. appears in the ANNEX The distribution of CARDS
different to the detailed ones in the ANNEX I it will be object of a new
agreement or Annex.
SECOND - TERRITORY OF DISTRIBUTION
THE DISTRIBUTOR, their agents, subdistribuidores or other distribution
channels, carry out their activity in the whole Spanish Territory, from now
on THE TERRITORY.
THIRD - OBLIGATIONS OF THE DISTRIBUTOR
a) THE DISTRIBUTOR will center its efforts in to promote the sale and to sell
CARDS to clients in the Points of Sale of the TERRITORY that both parts
agree, according to the terms and conditions described contract presently.
b) That prepared in this contract will be fully applicable to the
subdistributors, agents or any other form of distribution of THE DISTRIBUTOR.
c) THE DISTRIBUTOR will remit in writing (included facsimile) or through
e-mail to ITS the orders, specifying the I number of units and the
denomination of the CARDS that he/she wants to buy, as well as the prices to
pay for this order that you/they will be determined in the ANNEX I according
to the type of requested CARDS.
d) Neither the DISTRIBUTOR, neither their subdistributors, agents or anyone
of their distribution channels rots in any case to determine neither to alter
the sale price to the I publish of the CARDS. THE DISTRIBUTOR will be
responsible for the billing and of the payment, to the corresponding fiscal
authorities, of the taxes that are derived of any operation that he/she
carries out starting from the moment from the setting to disposition of this
CARDS.
e) THE DISTRIBUTOR doesn't rot in any case and under any concept to modify,
to alter or to add any element type, publicity, or logo to the CARDS that are
provided him for its sale, except for agreement among the parts. This
obligation will become expandable to potential subdistributors, agents and
other distribution channels.
f) THE DISTRIBUTOR will be responsible for all the expenses of publicity and
marketing that he/she carries out self-employed, I save in those that the
name of ITS is mentioned or appear its logo, in which case he/she will have
the expressed consent of ITS.
Nevertheless, the companas of publicity and marketing that carry out the
signatory parts jointly, will be paid according to punctual agreements.
g) THE DISTRIBUTOR adopted the necessary measures so that its personnel,
agents, subdistributors and how many third integrate its distribution channel
they fulfill the conditions picked up in this document, watching over its
execution and including them expressly in all the agreements that it signs
with the members of the distribution channel.
THE DISTRIBUTOR will be responsible of the possible nonfulfillments of its
distribution channel.
h) Without damage that ITS is the responsible from the service of attention
to the client, nevertheless, THE DISTRIBUTOR collaborated with ITS in the
works of attention of the consultations and its clients' reclamations,
putting in contact to the same ones with the service of attention to the
client of ITS and carrying out the tasks that to this end agree both parts.
i) THE DISTRIBUTOR will assume all the costs associated to the
commercialization of the Card in its Points of Sale.
FOURTH - OBLIGATIONS DE ITS.
a) ITS will carry out all the necessary efforts to fulfill the orders of
CARDS carried out by the DISTRIBUTOR in the time but brief possible and
inside the agreed term.
b) ITS will allow to the users of the CARDS with authorized validation
numbers and activated, to carry out telephone calls. Each call anger
accumulating the corresponding position based on the prices that he/she has
established ITS. Once the position of the calls carried out by a CARD has
equaled the value of the same one or have expired, the user doesn't rot to
carry out any call but with the mentioned CARD.
c) The disign of the cards and of the promotional material it will include
the logo or name of the card and the name of ITS.
d) ITS collaborated, in mutual accordance with THE DISTRIBUTOR, in its sale
personnel's formation.
e) ITS took charge of to design and to put in he/she practices all the
functionalities of the card, keeping in mind the situation of the market and
in accordance with THE DISTRIBUTOR.
f) ITS won't be responsible in the event of lost or robbery of sold cards,
for what won't be forced in any case to reimburse the positions consequence
of calls with the CARD that the I authenticate buyer he/she denies to have
carried out.
g) ITS won't have any obligation towards the employees, agents, or any other
distribution channel that the DISTRIBUTOR uses to complete the established
obligations presently contract.
h) ITS will respond of the damages, judicial or extrajudicial reclamations or
you complain that, due to the nonfulfillment of the obligations agreed
contract presently, be caused to the DISTRIBUTOR.
i) Dice the continuous changes for those that crosses the Spanish sector of
telecommunications in their trajectory toward the full liberalization, if for
legal, administrative or judicial decision it is impossible the execution of
the present contract, the parts will put an end to the same one,
extinguishing to the dates of the mentioned decision the obligations of both
parts and being annulled the pending orders. In the event of resolution:
i) THE DISTRIBUTOR paralyzed immediately all distribution activity and
it will return ITS all the CARDS that he/she had in its power in I
deposit and/or bought, as soon as it is he possible and as maximum in
the term of two months.
ii) ITS, on the other hand, reimbursed to the DISTRIBUTOR the sums that
this he/she had paid for the returned CARDS, and it paid the final
users that request it, according to the case, the quantities that had
not consumed of its CARDS. The resolution of the contract for the
previously exposed causes, won't give right to compensation for damages.
iii) The referred obligations will concern equally to potential agents
and other channels of distribution of the DISTRIBUTOR, should be
reflected in writing in all agreement or contract that the firm
DISTRIBUTOR with the same ones, be already physical or juridical people.
FIFTH - PAY OF THE CARDS.
a) The terms and payment conditions to carry out for THE DISTRIBUTOR are
determined in the ANNEX I that accompanies to this Contract.
b) THE DISTRIBUTOR carried out the payments by means of bank transfer in the
xxxx that ITS indicates.
c) The billed prices will be increased with the applicable taxes in vigor the
day of the billing.
d) ITS rots to modify the established rates, being necessary for the
beginning of its application a notice carried out with a minimum anteriority
of one month and of mutual agreement among the parts.
SIXTH - CONFIDENTIALITY
a) Each one of the signatory parts of the present agreement will consider
confidential all the relative information to the other parts, their main or
filial societies, of technical, economic, commercial character or of any
other nature including the existence and content of this contract, to which
has access by virtue of the activities or derived obligations of the present
contract, during the time of duration of this agreement and with posteriority
to their termination, until this information arrives to domain being I
publish or, for other reasons, lose its confidential consideration. Each one
of the parts commits to not revealing this confidential information without
the previous consent and in writing of the affected parts.
That same obligation will concern to the agents or any distribution channel
that the DISTRIBUTOR uses for the execution of its obligations, and he/she
will be reflected in writing in any agreement type or contract that the firm
DISTRIBUTOR with this people, be already physical or juridical.
b) Each part agrees to only use that confidential information in what is
until or necessary for the execution of the obligations that regulates the
present contract, and it will be restricted people in charge of the execution
of the same ones.
SEVENTH - INTELLECTUAL AND INDUSTRIAL PROPERTY
a) The present contract in any case implies the surrender or license of use
of the distinctive signs, patents or models of utility of ITS in favor of the
DISTRIBUTOR.
b) Any use of the distinctive signs, patents or models of utility of ITS for
parts of the DISTRIBUTOR will have the previous authorization and in writing
of ITS. Except for pact written in contrary, the DISTRIBUTOR doesn't rot to
use the distinctive signs of ITS or any part of them like part of its own
distinctive signs.
That same obligation will concern to the agents or any other distribution
channel that the DISTRIBUTOR uses for the execution of its obligations, and
he/she will be reflected in writing in any agreement type or contract that
the firm DISTRIBUTOR with this people, be already physical or juridical.
c) All the privileges and rights of use of the distinctive signs of ITS on
the part of the DISTRIBUTOR will conclude with the termination of the present
agreement.
d) nevertheless, those distinctive signs, marks, patents or models of utility
created jointly by both parts, will be property of both and don't rot to be
used unilaterally by none of the parts, without the previous consent and I
express of the other part.
e) The contracting parties recognize their respective rights of intellectual
and industrial property and they guarantee that in any moment they copied
neither they will make use of this property for their own ends neither it
stops ends unaware to the object of this contract. Each one of them commits
the protection of the rights that shows the other contracting party about its
products and services in a same way that he/she makes it with his to assure
own. Any use in the xxxx of the present contractual relationship will
require the previous authorization in writing of the regular contracting
party, making sure the respect of the rights for this acquired ones.
EIGHTH - DURATION AND TERMINATION OF THE CONTRACT.
a) The present contract settles down for the period of a year prorrogable for
successive years for reconduccion, unless it is denounced at least by anyone
of both parts with 60 days of advance of the date of its expiration or of the
successive ones you continue in its case. The contract entered in vigor in
the date of the signature.
b) in the event of nonfulfillment for one of the contracting parties of that
specified contract
presently, the other one leaves he/she reserves the right of to suspend the
execution of their contractual obligations and to begin the pertinent legal
actions if you persists in the nonfulfillment, previous communication in
writing and with the due advance in both suppositions.
c) Both parts will be entitled to solve the contract, previous communication
in writing with an advance of fifteen (15) days, if the other part became
insolvent or it was wrapped in crash procedures, suspension of payments, or I
compete of creditors.
NINTH - PENAL CLAUSE.
The resolution of the contract for anyone of the parts to that the other part
carried out any activity contrary to the law, the morals or the good customs
or any other activity anti-ethics that it xxxxx the informer's image will
give place to a consistent compensation in the quantity paid as stocking by
the DISTRIBUTOR to ITS during the last THREE months.
TENTH - IT FORCES BIGGER
None of the parts will respond for the nonfulfillment of their obligations
for causes of more force, among those that will be included to effects merely
enunciative fires, floods, catastrophes, emergencies, insurrections, wars,
acts of terrorism acts of Government, strikes, and employer closings.
ELEVENTH - RESOLUTION OF CONFLICTS.
The parts interveners agree that all litigation, discrepancy, question or
resulting reclamation of the execution or interpretation of the present
contract or related with the, direct or indirectly, they will be solved
definitively for the SERVICE OF ARBITRATION of the Chamber of Commerce of
Madrid, giving up any jurisdiction that can correspond them expressly.
TWELFTH - APPLICABLE LEGISLATION
The present contract will be governed by that settled down in the and,
supletoriamente, for the rest of the effective civil and mercantile
legislation in Spain.
THIRTEENTH - NOTIFICATIONS
The notifications or communications that you/they should carry out the parts
among if they will always be in writing and sent by fax or registered mail
with acknowledgment of receipt to the addresses signal to the beginning of
this contract.
FOURTEENTH - SEVERAL
a) None of the parts rots to give at a third the rights and obligations
established contract presently, without consent of the other one.
b) This contract won't suppose the creation of an association, xxxxx, joint
venture, or any other
form of commercial relationship among the parts.
c) In the supposition that any clause of this contract is inapplicable, in
its entirety or partly, this irrelevancy didn't affect to the validity of
other clauses of the same one, which will remain with full force and
effectiveness.
d) This contract together with its ANNEXES constitutes the result of the
negotiations carried out among the parts, and it absorbs all those agreements
or previous negotiations that had taken place among the parts, in an oral or
written way, about the object of the present contract.
And to the effect, both parts of mutual agreement, sign the present document
and their ANNEXES, for copy copy, in place and date indicated next
In Madrid, on the 15 of July, 2001
FOR THE DISTRIBUTOR FOR ITS J.
s/ J. Xxxxxxx Xxxxxxx s/ Xxxxxxxx Xxxxx
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J. Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxx
ANNEX 1
CARDS ITS: TYPES, PRICES, DATES OF EXPIRATION AND CONDITIONS
Next the general and economic conditions are specified (prices, rates,
commissions, you forms of delivery, expiration, orders, selections, etc.) for
those that the present contract will be governed:
* Cards en cuatricromia con diseno and logo ITS for consumption National
(calls of Espano to the foreigner and of Spain to Spain).
* The cards surrendered contained in packages of 10 cards, with unit of
having packed and selection in bags of 100 units
* Cards for the Peninsula and Balearic with delivery in Central Telecor
* In Canaries ITS gave the orders directly in each one of the Commercial
Centers. The cards ITS will be sold with the same PVP that in the peninsula
without including IVA. These orders were billed Central Telecor, indicating
in the invoice the delivery home
* First order in consignment (I deposit) of 5.000 units: 3.000 of 1.000
Ptas, 2.000 of 2.000 Ptas.
* I subtract according to Orders of Automatic Reinstatement in multiples of
100 units that will be accompanied by invoice, with payment to 90 days F/F
* Term of delivery maximum: 7 days
* The requested cards arrived to disabled Telecor. Telecor for fax will give
activation order to TIS, communicating the series of cards that you wants is
activades in lots of 100 units (complete batches). Activation for ITS in 24
hours gives working days with confirmation for fax to Telecor
* Date of expiration: 9 months from the first use of the card
* The card of 1.000 Pts the purchase Telecor to 517 Ptas but imposed
indrectos. The card of 2.000 Ptas the purchase Telecor to 1.034 Ptas but
taxes
* Exporitores and Publicity with position to ITS
* ITS sends to the sale Points directly the material PLV that remembers
* Tariffication in minutes * Telecor will receive 50% of the not consumed
amounts of each card from the moment that expires. IST informed monthly and
individually of those cards that have expired in the I finish month with
balance different from zero
* The rates to splicar to the calls of the users will be the effective ones
and published in each moment
In Madrid at 15 of Xxxxx 2001
FOR THE DISTRIBUTOR FOR ITS
s/ J. Xxxxxxx Xxxxxxx s/ Xxxxxxxx Xxxxx
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J. Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxx
