Exhibit 10.13
SUB-CONTRACT AGREEMENT FOR PROVISION OF MANAGEMENT AND TECHNICAL SERVICES
BETWEEN
NOSTRAD TELECOMMUNICATIONS INC.
AND
XXXXXXX ENTERPRISES L.L.C.
THIS SUB-CONTRACT AGREEMENT FOR PROVISION OF MANAGEMENT AND TECHNICAL SERVICES
("this Agreement") is made and entered into as of this 6th day of August 1999,
between Nostrad Telecommunications Inc. a Xxxxxxx established in Nevada, USA
("the NSTC "), and Xxxxxxx Enterprises, L.L.C., a Texas (IJSA) limited liability
Xxxxxxx ("Xxxxxxx ");
WHEREAS, Xxxxxxx has entered into an Equipment Supply Contract and a
Management and Technical Services Agreement for provision and management of an
MMDS wireless cable television distribution and reception system ("the System")
pursuant to the terms of that certain Comprehensive Supply Contract between with
the Zimbabwe Broadcasting and Xxxxxxx ("the Supply Contract") and ("Management
and Technical Services Agreement") hereto in attached as Exhibit "A" and forms
part of this agreement. For purposes of this Agreement, any and all business,
applications, operations or ancillary applications or uses of any equipment
constituting a part of the System, including the Equipment itself, throughout
the world shall be referred to herein as the "Business";
AND WHEREAS the parties hereto have signed an MOU on August 6 1999 and the
parties now wish to record the terms of their agreement;
AND WHEREAS, Xxxxxxx desires to engage NSTC as its exclusive agent to
operate the Business pursuant to the terms and conditions hereinafter set forth;
NOW, THEREFORE, these presents witness that the parties hereto hereby agree
as follows-
ARTICLE I
APPOINTMENT AND COMPENSATION OF NSTC
1.1 Appointment of the NSTC. Xxxxxxx hereby appoints the NSTC, and the NSTC
hereby accepts appointment, on the terms and conditions set forth herein, to
exclusively manage and operate the Business on Xxxxxxx'x behalf from and after
the Effective Date (as hereinafter defined) throughout the world. NSTC shall be
an independent contractor and not an agent of Xxxxxxx, except to the limited
extent and for those limited Purposes specifically set forth in this Agreement.
1.2 Delegations of Authority.
(a) To NSTC. Except as otherwise provided herein, and subject to the
management and operational policies that may be reasonably established from
time to time by ZBC or Xxxxxxx, Xxxxxxx delegates to the NSTC, and the NSTC
hereby assumes, the exclusive right and authority for the proper and
efficient day-to-day operation and management of the Business. Xxxxxxx and
the NSTC agree that each will cooperate with and assist the other in every
reasonable and proper way to permit the NSTC to carry out its duties under
this Agreement or otherwise
with respect to Business. The Business shall be operated completely
independently of the other operations of Xxxxxxx and Xxxxxxx shall take
such measures as are necessary to ensure that the operations of the
Business are not affected by the other operations of Xxxxxxx, including but
not limited to, any financial responsibility for the other operations of
Xxxxxxx other than as provided herein.
(b) Xxxxxxx'x Representatives. Xxxxxxx reserves the right to have a
person appointed to the Board of the Entity as hereinafter defined and to
delegate to any such party the authority to exercise or perform any right,
power, privilege, or duty that Xxxxxxx may have under this Agreement or
otherwise in connection with the Business; provided, however, such
representative shall not interfere with the operations of the Business by
NSTC; nor shall such party have the right to dictate or direct NSTC in
regard to the manner in which NSTC should execute its obligations and/or
operations. NSTC shall cooperate and deal with any such party as to any
matter so delegated just as if Xxxxxxx'x representative was Xxxxxxx under
the terms of this Agreement. No delegation by Xxxxxxx to any representative
shall diminish either the authority or the responsibility of the NSTC under
Section 1.2(a) or any other provision of this Agreement.
1.3 Funding. Subject to the provisions hereof regarding the authority for
expenditures by NSTC and within limits established by any approved
budgets, Xxxxxxx through ZBC agrees to pay for all costs of equipping
and operating the Business and to advance any funds necessary for such
purpose; provided, however, NSTC shall have the exclusive right to
collect all funds generated from the Business and to pay all expenses
attendant thereto. To the extent of any shortfall, NSTC shall notify
Xxxxxxx in writing. Notwithstanding anything contained herein, NSTC
shall have the right to deduct all and any expenses incurred by it,
whether or not the funds for which expense or expenses should have
been advanced by Xxxxxxx, from any funds that may be due or to become
due to Xxxxxxx.
1.4 Comprehensive Supply Contract between with the Zimbabwe Broadcasting
and Xxxxxxx: Xxxxxxx hereby agrees to grant NSTC the right of first
refusal to provide equipment and services on a lump sum basis as per
the "Supply Contract" on Terms and Conditions acceptable to both
party's. In this regard Xxxxxxx agrees to provide NSTC with any
engineering studies, specification and bills of materials in order for
NSTC to provide a competitive proposal.
ARTICLE II
DUTIES OF NSTC
2.1 General Statement of NSTC's Duties and Authority. NSTC agrees to manage
and operate the Business in a manner that is consistent with business
operations similar to the Business of Xxxxxxx and shall use diligent efforts to
operate the Business so as to maximize net operating income to ZBC, consistent
with the support and maintenance of the long-term prospects of the Business.
NSTC will also perform its duties in a reasonable and professional manner and to
minimize expenses and losses to ZBC, consistent with the support and maintenance
of the long-term prospects of the Business. NSTC will make available to ZBC
through Xxxxxxx the full benefit of the judgment, experience and advice of
members of the NSTC's organization and shall be responsible for the operation of
the Business throughout the world. The NSTC will at all times act in good faith
and in a commercially reasonable manner with respect to the proper operation and
protection of and accounting for ZBC's assets. In this connection, and subject
to the terms and conditions of this Agreement, the NSTC shall have the exclusive
right to do the following:
(a) Hire employees and discharge, maintain and supervise an adequate
staff to operate the Business at wages and salary rates for various jobs
from time to time by ZBC.
(b) Recommend and institute appropriate employee benefits.
(c) Design and maintain accounting and any and all other reasonably
necessary or desirable reports. The NSTC shall institute procedures and
file reports and applications under any applicable statutes, regulations or
ordinances.
(d) Maintain accounting and management information systems for the
Business in accordance with generally accepted accounting principles.
(e) Collect all revenue and provide for the orderly payment of bills,
accounts payable, employee payroll, taxes, insurance premiums and other
debts of ZBC, including but not limited to, all Management Fees and all
amounts owed with respect to the loan obtained by Xxxxxxx to purchase the
System (the "Loan"); provided, that the NSTC's responsibility under this
section shall be limited to the exercise of reasonable diligence and care
to apply the funds collected in the operation of the Business to its
obligations in a timely and prudent manner, and the NSTC shall have no
separate liability with respect to any obligation of the Business. It is
recorded for the avoidance of doubt that ZBC under the terms of ZBC's and
Xxxxxxx'x Agreements attached as Exhibit "A" is and shall at all times
remain the party liable to repay the Loan and that the NSTC assumes nothing
more than the administrative function of repaying the Loan to the extent
sufficient funds exist. Should there be insufficient funds to effect the
repayment when due of any installment of the Loan, NSTC will advise ZBC and
Xxxxxxx as soon as practicable and ZBC and Xxxxxxx undertakes to provide
NSTC such funds requested immediately upon notification by NSTC.
(f) Advise and assist ZBC in obtaining and maintaining customary
insurance coverage, with ZBC, NSTC and such other persons as requested by
ZBC named as insureds. The NSTC shall advise the ZBC with regard to the
availability, nature and
desirable policy limits of insurance coverage and shall request and receive
bids for such coverage.
(g) Negotiate with any labor union or other organization lawfully
entitled to represent employees of the Business, provided, however, that
any collective bargaining agreement or labor contract must be submitted to
ZBC for its approval and execution.
(h) Make periodic evaluations of the performance of the Business and
attempt to expand the business beyond the borders of Zimbabwe.
(i) Establish and maintain charts of accounts, accounting systems, and
internal controls.
Design and implement a product and services marketing plan.
(k) Advise and assist ZBC in maintaining all necessary and desirable
licenses and permits.
(1) Supervise the maintenance of the System.
(m) Obtain satellite transponder space in so far as NSTC is able.
(n) Provide all programming to be broadcast on the System.
(o) Obtain and sell all decoders, replacement, and additional
equipment for the System.
(p) Negotiate with other countries for any use of the System.
(q) Negotiate and implement any ancillary use of the System.
(r) To formulate a budget for its obligations in terms of this
Agreement and forward it to Xxxxxxx for its approval before such budget is
implemented.
Except for the purchase of normal quantities or amounts of goods, services
and supplies reasonably required in the ordinary course of Business' normal
operation and maintenance, the NSTC shall not pledge the credit of ZBC or
incur any other liabilities or obligations in ZBC's name without ZBC's
prior written consent. Notwithstanding anything else contained herein,
those of the NSTC's obligations hereunder that require the expenditure of
funds shall be and are conditioned on there being sufficient funds
available therefor in the bank accounts of the Business provided for
herein. In no event shall the NSTC
be in default for not performing, its obligations hereunder that require
the expenditure of funds if there are not funds available in the accounts
of the Business. In no event or circumstance is NSTC obligated to advance
any funds in order to enable it to perform any of its obligations
hereunder.
2.2 The ZBC's Rights Regarding Management NSTC agrees that its
representatives will consult with and advise ZBC and its representatives with
reasonable frequency, and the NSTC shall make no significant policy changes
without ZBC's prior written consent, The NSTC shall make no decisions of any
substantive or long-term consequence which are not either specifically reflected
in an approved budget or marketing and management plan, which shall be updated
biannually, or otherwise approved in writing by the board of directors of ZBC
(the "Board of Directors"). For purposes of this Agreement, "long-term" shall
mean having an effect over a period of three years or more.
2.3 Access to Records and Facilities. The books and records of the
Business, for which the NSTC is responsible, shall be maintained at the
principal offices of the Business, although the NSTC shall have the right to
maintain copies of such records at its office for the purpose of providing
services under this Agreement. NSTC shall make available to ZBC and Xxxxxxx, its
agents, accountants and attorneys during normal business hours, all books and
records pertaining to the Business subject to ZBC or Xxxxxxx giving NSTC
reasonable written notice of its intention so to do and NSTC shall respond to
any questions of ZBC or Xxxxxxx with respect to such books and records and shall
confer with ZBC and Xxxxxxx at all reasonable times, upon written request,
concerning, operation of the Business, and the NSTC shall assist and cooperate
with ZBC's auditors in the conduct of any audit of the financial condition and
results of operations of the Business. Further, within thirty (30) days of the
expiration of each quarter, NSTC shall provide ZBC and Xxxxxxx financial reports
regarding the operations of the Business.
2.4 Laws Regulations and Licenses.
(a) NSTC shall comply on behalf of ZBC with all material and
applicable laws, rules and regulations relating to the Business and shall
operate the Business so that it shall maintain all necessary and material
licenses, permits, consents and approvals from all Governmental agencies
which have jurisdiction over the operations of the Business.
(b) Neither ZBC/Xxxxxxx nor the NSTC shall knowingly or purposefully
take any action which shall cause any governmental authority having
Jurisdiction over the operation of the Business to institute any proceeding
for the rescission or revocation of any necessary license, permit, consent
or approval.
2.5 Taxes. Any taxes or other governmental obligations lawfully imposed on
the Business are the obligations of ZBC, nor of NSTC, and shall be paid out of
the operating accounts of the Business. With the written consent of ZBC, NSTC
may contest the validity or amount of any such material tax or imposition or the
validity or application of any law, ordinance, rule, ruling, regulation, order
or requirement of any governmental
agency having jurisdiction by appropriate legal proceedings, diligently
conducted in good faith, in the name of ZBC. ZBC shall cooperate with NSTC with
regard to the contest, and ZBC shall pay the reasonable attorney's fees incurred
with regard to the contest. Counsel for any such contest shall be selected by
NSTC.
2.6 Additional Rights of NSTC. The NSTC shall, in addition to the rights
set forth herein, have the following specific rights:
(a) To market the Business and cause it to be advertised anywhere in
the world;
(b) To market, Sell and install decoders or subscriber packages enable
subscribers and such other equipment as may be necessary to anywhere in
the, world to access programs, information of any other service transmitted
by or through the System;
(c) To negotiate and collect all and any revenue, generated directly
or indirectly from the Business and, in particular, the collection from
subscribers and/or consumers of subscriptions and charges levied by the
NSTC for the use of all or any of the Equipment referred to in the Supply
Contract;
(d) To establish such accounting and/or billing systems as may be
necessary to enable subscriber to be billed for services rendered by the
Business anywhere in the world;
(e) To incorporate or establish such company or companies and/or such
other legal entity (the "Entity") as NSTC deems fit to facilitate the
collection of revenue from subscribers to effect payment of expenses
related to the provision of services of the Business and to carry out all
or any of the functions that NSTC is obligated to perform under and the
terms of this Agreement,
(f) The specific right to delegate all and any of its functions to the
Entity or such other party as NSTC deems fit.
2.7 Ancillary Uses of the System, It is acknowledged by the parties that
the Equipment forming the subject matter of the Supply Contract is capable of
being utilized for functions other than pay television, such as, but not limited
to internet access provider uses and paging and is also capable of transmitting
pay television to countries other than Zimbabwe (hereinafter referred to the
"Ancillary 'Uses"). Xxxxxxx hereby irrevocably appoints NSTC as its agent to
secure subscribers, users and/or operators for the Ancillary Uses and hereby
undertakes to ratify any agreement that the NSTC may conclude with any third
party or parties with respect to such Ancillary Uses; provided, however that the
parties hereto shall thereafter conclude an agreement relating to the additional
revenue realized as a result of the employment of the Ancillary Uses as between
themselves, but pending such agreement it is agreed that
(a) NSTC shall be entitled at all times to be paid directly by such
third party
or parties all and any dues in terms of any agreement concluded by the NSTC
on behalf of ZBC and such third party or parties-,
(b) NSTC shall be entitled to form such company or companies or other
legal entity for the proper delivery of any service in respect of the
Ancillary uses;
(c) NSTC shall be entitled to no less than thirty (35%) percent of the
Net Profit realized as a result of the employment of the Ancillary Uses by
such third party or parties;
(d) NSTC shall be entitled to retain and utilize all revenue resulting
from the employment of the Ancillary Uses until such time as an agreement
has been concluded between NSTC and ZBC relating to the employment of the
Ancillary Uses.
ARTCLE III
TERM
3.1 Term. Subject to early termination pursuant to any of the provisions of
Article III the initial term of this Agreement shall commence on the Effective
Date and expire at midnight on the twenty (20) year anniversary of the Effective
Date, and unless this Agreement is terminated pursuant to any of the provisions
of Article III, the term of this Agreement shall thereafter automatically be
renewed and extended on each anniversary of the Effective Date for additional
ten (10) year terms, subject to early termination pursuant to any of the
provisions of Article III.
3.2 Termination by Either Party for Cause. In the event of either party
committing a breach of any of the terms of this agreement and failing, to remedy
same within thirty days of the posting of a letter by prepaid registered post
specifically describing the breach, the aggrieved party shall have, in addition
to any other right it may have at law, the right to terminate this Agreement.
3.3 Additional grounds for termination. In any event either party may
terminate this Agreement by written notice of termination if any of the
following occurs to the other party
(a) The other party dissolves or is placed in provisional liquidation
or admits that it is unable to pay its debts as and when they fall due; or
(b) A judgment is entered against the other party or the other party
undergoes a restructuring in terms of which there is a change in control,
shareholding or management of that other party.
3.4 Effect of Termination. The termination of this Agreement for any reason
shall not affect (a) any right, obligation or liability which has accrued under
this Agreement on or before the effective date of such termination, or (b) the
indemnification obligations described in Section 5.5. Upon termination of this
Agreement for any reason, NSTC shall cooperate with ZBC and Xxxxxxx in an effort
to achieve an efficient transition, and before receiving, final payment of the
Management Fee, shall promptly deliver to ZBC and Xxxxxxx or such other person
or persons as ZBC or Xxxxxxx may direct in accordance with ZBC's instructions,
and take all steps necessary or desirable to ZBC in full control of, all
Business funds, accounts, original contracts, monies, books, insurance policies,
records, file, and folios of every kind and description, whether relating to
past, current or prospective customers, contracts, maintenance, repairs or
otherwise, and all other things, items or information reasonably necessary or
appropriate to the continuing management, operation and maintenance of the
Business.
.). 4 Payment of Management Fee Upon Termination.
(a) If this Agreement is properly terminated by NTSC for cause under
Section 3.2 or 3.3, then:
(1) any accrued unpaid Base Management Fee (as hereinafter
defined) installments with respect to any period prior to the date of
such termination shall be paid as provided in Section 4. 1; and
(2) as soon as the audited financial report is completed for the
fractional fiscal year in which such termination occurs, the
Additional Management Fee (as hereinafter defined) prorated for the
then current year, prorated for the period during which this Agreement
was in effect (collectively, the "Prorated Fee"), shall be paid to
NSTC as provided in Section 4. 1.
(b) If this Agreement is terminated by ZBC for cause in strict
compliance with Section 3.2, then:
(1) unpaid accrued Base Management Fees will be paid;
(2) as soon as the audited financial report is completed for the
fractional fiscal year in which such termination occurs, the
Additional Management Fee, prorated for the period during which this
Agreement was in effect, shall be paid and/or granted to NSTC as
provided in Section 4. 1.
3.5 Break-up Fee Upon Termination.
(a) Notwithstanding anything contained herein if the Agreement between
ZBC and Xxxxxxx herein attached as Exhibit "A" is terminated by ZBC for any
reason other than the natural expiration of the term of this Agreement, in
recognition and in compensation of NSTC for its large capital expenditures
and uncompensated time incurred in connection with the establishment of the
Business, Xxxxxxx shall pay NSTC a break-up fee
of US $3,000,000 from the proceeds received by Xxxxxxx from ZBC within
seven (7) days from receipt of such funds.
ARTICLE IV
MANAGEMENT FEES
4.1 Management Fees.
(a) Base Management Fee. During the term of this Agreement NSTC shall
pay itself from the revenue generated by the Business as compensation for
performing the duties set forth herein a Base Management Fee ("Base
Management Fee") payable monthly in advance in an amount equal to US
$10,000 per month on the first day of each and every month;
(b) Additional Management Fee. The NSTC shall be entitled to an
additional management fee (the "Additional Management Fee") equal to
fifteen (15%) percent of the Net Profit (as hereinafter defined) generated
by sources within Zimbabwe until all amounts owed with respect to the Loan
have been paid, and thirty (30%) percent thereafter. All Business generated
from Sources outside Zimbabwe shall be subject to separate agreement but in
no event shall NSTC receive less than forty (40%) percent of the Net Profit
from sources outside Zimbabwe. For purposes of this Agreement, Net Profit
shall mean the sum of all revenue of the Business less the actual costs of
operating the Business with generally accepted accounting principles, be
determined once each quarter and shall be payable as soon thereafter as
sufficient funds exist after taking into account adequate reserves for the
operation of the Business. At the time that NSTC pays itself the Additional
Management Fee, it shall pay to ZBC and Xxxxxxx its share of the profits of
the Business.
(c) Notwithstanding anything contained in this agreement, the parties
specifically agree that in defining the Net Profit, NSTC shall be entitled
to first provide for and pay to itself the Base Management Fee, then
provide for and pay all the expenses of the Business and/or the Entity and
only thereafter will NSTC be obliged to account to ZBC and or Xxxxxxx for
any monies; PROVIDED that the NSTC shall be entitled in so accounting to
ZBC and Xxxxxxx to withhold that portion of the net profit that represents
monies due to it by way of the Additional Management Fee or such other
monies that may be due to it by way of the Additional Management for such
monies that may be due.
ARTICLE V
GENERAL PROVISIONS
5.1 Relationship. NSTC is an independent contractor and not an agent of ZBC
or Xxxxxxx, except to the limited extent and for those limited purposes
specifically set forth herein; accordingly, NSTC shall not have the power to
(and shall not purport to) bind or obligate ZBC or Xxxxxxx except to the extent
and as specifically set forth in this Agreement or as otherwise agreed upon and
approved by ZBC or Xxxxxxx in writing. NSTC shall not be deemed or construed to
be, and shall not be, under any circumstance or for any purpose a partner or
joint venture of or with ZBC or Xxxxxxx by virtue of or under this Agreement or
otherwise in respect of the Business.
5.2 Assignment. This Agreement shall be binding upon Xxxxxxx and NSTC and
their respective successors and permitted assigns and shall inure to the benefit
of Xxxxxxx and NSTC. Save as specifically provided herein, neither Xxxxxxx nor
the NSTC may assign or transfer any of its obligations under this Agreement
without the prior written consent of the other party, which may be withheld
without cause in the other party's sole discretion; provided, however, the NSTC
may assign this Agreement to an affiliate who expressly assumes and agrees to be
bound by the terms of this Agreement and NSTC may subcontract any and all of its
duties hereunder provided NSTC shall in all instances remain liable to Xxxxxxx
for all ditties performed by NSTC or its subcontractors hereunder. This
Agreement is not intended for the benefit of any third party, and no such third
party may enforce any rights or obligations arising under this Agreement against
Xxxxxxx or NSTC as a third party beneficiary.
5.3 Indemnification.
(a) Indemnification of the NSTC. Xxxxxxx agrees to indemnify and hold
the NSTC free and harmless from any loss, liability or cost (including
legal costs) which is not covered by insurance proceeds and which the NSTC
may sustain, incur or assume as a result of, or relative to, any
allegation, claim, civil or criminal action, proceeding, charge or
prosecution (collectively "Claims") which may be alleged, made, instituted
or maintained against the NSTC or Xxxxxxx, jointly or severally, which
results from negligence, fraud or willful misconduct of Xxxxxxx, its
agents, affiliates or employees, The provisions of this paragraph shall not
constitute a release of any rights of Xxxxxxx arising as a result of any
breach or default by the NSTC of a provision of this Agreement and shall
not supersede any right of termination belonging to Xxxxxxx.
(b) Survival. The provisions of this Article shall survive any
Cancellation, termination or expiration of this Agreement for a period of
two (2) years.
5.4 Notice. Any notices required to be given under this Agreement to the
other party shall be in writing and shall be sent to the other party by personal
service or registered or certified mail, postage prepaid, addressed as follows:
If to Xxxxxxx:
Xxxxxxx Enterprises, L.L.C.
000 Xxxx Xxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000 (USA)
If to the NSTC:
Nostrad Telecommunications Inc.
Xxxxx 0000 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
Deliveries by fax shall be acceptable. To the extent a party mails its notice,
such notice shall be deemed effective only upon receipt by the other party.
Either party may change its address by notice to the other party.
5.5 Amendments Waiver. None of the covenants, terms of conditions of this
Agreement to be kept and performed by the NSTC or Xxxxxxx may be amended or
modified except by a written instrument signed by both parties. Any consent to
or acquiescence in any breach of this Agreement shall not constitute a waiver of
any other or later breach of the same or of any other covenants, agreements or
conditions thereof
5.6 Severability. In the event any term or provisions of this Agreement or
any application thereto to any person or circumstance shall be declared
prohibited, valid, or unenforceable to any extent in any Jurisdiction, as
determined by a court of competent jurisdiction, such term or provision shall,
in that jurisdiction, be ineffective only to the extent of such prohibition,
invalidity, or unenforceability, or as applied to such persons or circumstances,
without invalidating or rendering unenforceable the remaining terms or
provisions hereof or affecting the validity or enforceability of such ten-n or
provision in- any other jurisdiction or as to other persons or circumstances in
such jurisdiction, unless such would effect a substantial deviation from the
general intent and purpose of the parties or made a significant change in the
economic effect of the Agreement on the party benefited by such term or
provision.
5.7 Force Majeure. Neither party hereto shall be in default for failure to
perform any of its obligations pursuant to this Agreement if and to the extent
that it can establish that such failure was occasioned by circumstance which
were acts of God and beyond control and which by the exercise of reasonable due
diligence and foresight it could not have prevented or overcome,
5.8 Governing Law and Disputes. This Agreement shall be construed and
enforced in accordance with the internal laws of USA without regard to conflict
of law principles. Any dispute arising between the parties to this
Agreement, whether involving the Entity or not shall be settled in the following
manner:
5.8.1. In the case of a disagreement between ZBC and NSTC acting as an
Agent of Xxxxxxx the aggrieved party in the case of shall refer the dispute to
the Minister of Information, Posts and Telecommunications who shall attempt to
mediate the dispute within 14 days of the referral to him/her of the dispute,
but any decision made by the Minister shall not be binding on the parties;
5.8.2. In the event that the dispute is not mediated within the time period
set out herein above or if either party is dissatisfied with the decision of the
Minister then such dissatisfied party shall have the right to take such action
as it may deem fit in order to enforce and/or safeguard its rights as may be
permitted at law.
5.9 Entire Agreement. This Agreement constitutes all of the understandings
and agreements between the Xxxxxxx and the NSTC with respect to the NSTC's
management, operation and maintenance of the Business and supersedes all prior
understandings and agreements, commitments, representations, and warranties,
whether oral or written, of every kind and description whatsoever and however
characterized.
5.10 Headings. The article, section and paragraph headings contained herein
are for convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provisions of this Agreement.
5.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
5.12 Confidential Information. The NSTC and the Xxxxxxx'x employees shall
use their best efforts to hold Confidential Information in trust and confidence
and, except as may be authorized by Xxxxxxx in writing, shall not disclose any
Confidential Information to any person or party. "Confidential Information"
means the provisions of this Agreement any other agreements or financial,
marketing, or other similar information relating to the Business, as disclosed
to the NSTC by Xxxxxxx, or obtained by NSTC in the performance of its duties and
obligations under this Agreement, which relate to the real estate or business
activities of Xxxxxxx or its affiliates. Without limitation, all contracts
hereunder between NSTC and other persons or parties, which relate to Xxxxxxx or
its Business shall include this provision to insure nondisclosure of
Confidential Information by them.
5.13 Affiliates. The NSTC may employ or otherwise retain or contract with
any affiliate of the NSTC to furnish any goods or services for the Business of
Xxxxxxx without the prior written consent of Xxxxxxx; Provided, however, that
all such goods and services shall be furnished at a fair, reasonable, and
competitive cost, quality, and
timeliness. Further, in order to protect the liability of Xxxxxxx and NSTC, NSTC
shall have the right to form new companies under the laws of any country in
which it intends to market the System to perform the NSTC's duties hereunder,
the costs and expenses of which shall constitute expenses of the Business.
5.14 Authority/Representations. Xxxxxxx and NSTC warrant and represent, one
to the other, that: (1) all approvals and resolutions necessary to enter into
and perform this Agreement has been obtained as of the execution of this
Agreement, including but not limited to, the approval of all parties within the
Government of Zimbabwe necessary for the execution of this Agreement to
constitute an act of Government of Zimbabwe, (ii) entering into and performing
this Agreement will not violate or breach any other agreement, law or ordinance
to which the party is subject to, and (iii) the person executing this Agreement
on their behalf is fully vested with authority to execute this Agreement. Other
than as stated in this Section 5.14, the parties have not relied on any
representation or warranty of the other, whether written or oral. The
representations and warranties contained in this Section 5.14 shall survive any
cancellation, expiration, or termination of this Agreement for a period of two
(2) years.
WITNESS WHEREOF, NSTC and Xxxxxxx have caused this Agreement to be executed
as of the day and year first above written.
Nostrad Telecommunications Inc. Sealed
By: ______________________
Xxxxx Xxxxxxxxx, Director & Senior Vice President
WITNESS:
By: ______________________
Name:
Xxxxxxx Enterprises L.L.C. Sealed
By: ______________________
WITNESS:
By: ______________________
Name:
