FRANCHISE AGREEMENT
EXHIBIT 4.100
THIS FRANCHISE AGREEMENT is made the 7th day ofFebruary 2002 by and between
| (1) | PACIFIC INTERNET LIMITED whose registered office is at 00 Xxxxxxx
Xxxx Xxxxx # 00-00/00, Xxx Xxxxxxxxxx, Xxxxxxxxx 000000 ("Franchisor");
and |
| (2) | PACIFIC INTERNET (THAILAND) LIMITED whose registered office is at 333 Xxx Xxxx Xxxxx Xxxxx 0 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxx Xxxxxxx Road, Ladyao, Chatuchak, Xxxxxxx 00000, Xxxxxxxx ("Franchisee") |
WHEREAS:
| (A) | The Franchisor is the sole licensee of the Intellectual Property (defined
below) in the Territory (defined below). |
| (B) | The Franchisee recognises the benefits of being identified with and licensed by the Franchisor and is desirous of acquiring from the Franchisor the exclusive right and franchise to operate the Business (defined below) in the Territory in accordance with terms of this Agreement. |
NOW IT IS HEREBY AGREED as follows:
| 1. | DEFINITIONS In this Agreement, unless there is something in the subject or context
inconsistent therewith : |
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| (a) | the following expressions bear the following meanings, namely : "Business" means : |
|
| (i) | establishing and undertaking the business of local Internet access providers
throughout the Territory; and |
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| (ii) | other activities and businesses which are directly or indirectly for the
attainment of any of the foregoing businesses; |
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| according to the System and using the Intellectual Property; |
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| "Franchised Centre" means the centre which
operates the Business or any part of the Business at the Location pursuant
to this Agreement; |
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| "Intellectual Property" means all or any
of the following : |
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| (i) | Trade Marks; |
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| (ii) | Trade Name; |
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| (iii) | the System; |
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| (iv) | patents of which the Franchisor is patentee or licensee in the Territory
and which relate to the Products, Services and/or the System; |
|
| (v) | copyright and design rights held by the Franchisor in any written material
plans designs or other work relating to the Products, Services and/or the
System; and |
|
| (vi) | designs whether or not registered or protected by copyright devised or
acquired by the Franchisor and applied in relation to the Products, Services
and/or the System. |
|
| "Location" means such location
or locations within the Territory as may be approved from time to time by
the Franchisor; |
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| "Products" means the products
sold or retailed by the Franchisor in the Business; |
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| "Services" means the services
forming part of the Business, which may include the services set out in
Schedule A hereto (as may from time to time be amended in writing by the
Franchisor); |
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| "System" means any information
of the Franchisor on the management and operation of the Business using
the Intellectual Property and any necessary know-how trade secrets methods
of operation insignia identifying materials methods of advertising style
and character or equipment and arrangements; |
||
| "Territory" means the Kingdom
of Thailand; |
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| "Trade Marks" means the trade
marks and/or service marks set out in Schedule B hereto (as may from time
to time be amended in writing by the Franchisor); and |
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| "Trade Name" means the business
name "Pacific Internet" and its corresponding logo(s) (as may
be amended in writing from time to time by the Franchisor); |
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| (b) | any reference to a statutory provision, shall
include such provision as from time to time modified or re-enacted and any
regulations made in pursuance thereof as from time to time modified or re-enacted
whether before or after the date of this Agreement so far as such modification
or re-enactment applies or is capable of applying to any transactions entered
prior to completion and (so far as liability thereunder may exist or arise)
shall include also any past statutory provision or regulations (as from
time to time modified or re-enacted) which such provision or regulations
have directly or indirectly replaced; |
|
| (c) | references to Recitals, Clauses, Schedules and
Appendices are to recitals, clauses of and schedules and appendices to this
Agreement; |
|
| (d) | the headings are for convenience only and shall
not affect the interpretation hereof; |
|
| (e) | unless the context otherwise requires or permits,
references to the singular number shall include references to the plural
number and vice versa and references to natural persons shall include bodies
corporate; |
|
| (f) | for the avoidance of doubt, termination of this
Agreement shall include without limitation the expiry hereof by affluxion
of time; |
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| (g) | reference to any "agreement" or "notice"
shall mean an agreement or notice in writing and "writing" includes
all means of reproducing words in a tangible and permanently legible form. |
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| 2. | GRANT OF FRANCHISE |
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| 2.1 | For the consideration herein provided, the Franchisor
hereby grants to the Franchisee an exclusive right, subject to the terms
and conditions contained in this Agreement; |
|
| (a) | to operate the Business at the Location in accordance with
the System; |
|
| (b) | to use solely in conjunction with the Business; the Intellectual
Property and such other related or ancillary trademarks, trade names, copyrights,
emblems, designs, labels, signs and symbols belonging to the Franchisor
and appearing in connection with the Business or on products or services
arranged or provided by the Franchisor as the Franchisor may from time to
time make available to the Franchisee. |
|
| 2.2 | The Franchisor's System used in the operation
of the Business is included in this license. All improvements to the System
and other systems developed by, or to be developed by the Franchisor and/or
its affiliates to the extent permitted by applicable law are not included
in this license, but may be licensed separately by the Franchisor, in its
sole and absolute discretion. |
|
| 2.3 | Upon the Franchisor's request, the Franchisee
shall take reasonable steps which are required to obtain registration of
the Franchisee as a registered user of the Trade Marks and the Franchisor
shall use its reasonable endeavours towards registration of the same; Provided
Always that such registration is necessary for the Franchisee's use
of the Trade Marks and the Franchisee shall, if required by the Franchisor,
enter into a registered user agreement in respect of the Trade Marks upon
terms satisfactory to the Franchisor. Each such registered user agreement
shall contain appropriate provisions relating to the products and/or services
in respect of which the Franchisee is to be become registered as the user
of the Trade Marks concerned in the Territory, the terms and conditions
upon and subject to which the Trade Marks are to be used by the Franchisee,
and shall be in such form as required to give effect to this clause. The
Franchisee shall at the cost of the Franchisor render to the Franchisor
all reasonable assistance to enable the Franchisor to obtain and/or maintain
registration of the Trade Marks. In no circumstances will the Franchisee
apply for registration as proprietor of any of the Trade Marks whether in
the form of service marks or trade marks applications. In the event such
rights at any time accrue to the Franchisee, the Franchisee will forthwith
on demand do all such acts and things and execute all documents as the Franchisor
shall deem necessary to vest such rights of the Franchisor. |
|
| 3. | TERM AND RENEWAL |
|
| 3.1 | This Agreement shall be deemed to have commenced
on 10 May 2000 and shall remain in force for a period of ten (10) years
("Term") thereafter. Except as otherwise provided herein, this
Agreement shall continue in full force and effect during the Term until
the earlier of the following events: |
|
| (a) | the termination of this Agreement by the Franchisor by thirty
(30) days' notice in writing to the Franchisee; |
|
| (b) | an effective resolution is passed or a binding order is
made for the winding up of the Franchisee; or |
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| (c) | this Agreement is terminated pursuant to Clause 11. |
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| 4. | FEE AND EXPENSES |
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| 4.1 | In consideration of the licence granted by the
Franchisor to the Franchisee under Clause 2 of this Agreement, and of the
services provided by the Franchisor to the Franchisee under Clause 5 of
this Agreement, the Franchisee shall pay to the Franchisor a fee of one
United States dollar (US$1)and shall further reimburse the Franchisor in
the manner as provided hereinafter. Notwithstanding the foregoing, the Franchisee
agrees to pay for the actual costs in respect of the airfare, accommodation
and all other reasonable expenses relating thereto incurred by the Franchisor
in sending its staff members to Thailand up to four times each year, for
the review and observance of the Franchisee's operations. |
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| 4.2 | All payments to be made by the Franchisee to
the Franchisor under this Agreement shall be made : |
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| (a) | without any demand, set-off, counterclaim or deduction whatsoever; |
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| (b) | free and clear of and without any deduction or withholding
on account of any tax (including VAT); and |
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| (c) | in such currency and to such bank account as the Franchisor
may from time to time specify. |
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| 4.3 | If the Franchisee is required by law to make
any deduction or withholding on account of any such tax (including VAT)
or other amount from any sum paid or payable by the Franchisee (save for
royalty payments) to the Franchisor under this Agreement, the sum payable
by the Franchisee in respect of which the relevant withholding, deduction
or payment is required shall be increased to the extent necessary to ensure
that, after the making of that deduction, withholding or payment, the Franchisor
receives on the due date and retains (free from any liability in respect
of any such deduction, withholding or payment) a net sum equal to what it
would have received and so retained had no such deduction, withholding or
payment been required or made. The Thailand taxes on all payments relating
to the technology transfer arrangement shall be borne by the Franchisor. |
|
| 4.4 | Any monetary obligation not paid by the Franchisee
on its due date shall bear interest at a rate of 2% per annum above the
prevailing London Inter Bank Offered Rate on the due date calculated on
a daily rest from the date payment became due to the date of actual receipt
of payment by the Franchisor inclusive. The Franchisee shall pay all the
Franchisor's costs, charges and expenses directly or indirectly incurred
in obtaining or otherwise enforcing payment of the same. |
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| 5. | FRANCHISOR'S OBLIGATIONS |
|
| 5.1 | The Franchisor may provide training for such
number of personnel of the Franchisee at the Franchisee's expense
and on such terms and conditions as the Franchisee and the Franchisor may
mutually agree. The Franchisor shall have the right to require the Franchisee's
employees to attend further training courses at any time during the term
of this Agreement if it reasonably considers that such further training
is necessary. The time and place of any such training shall be at the absolute
discretion of the Franchisor but the Franchisor shall try to accommodate
the Franchisee's reasonable requirements. |
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| 5.2 | The Franchisor may make available to the Franchisee,
on terms and conditions to be mutually agreed, promotional and point-of-sale
materials and advise the Franchisee on promotional programmes relating to
the Business. |
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| 5A | CONSULTANCY SERVICES |
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| 5A.1 | Upon request of the Franchisee, the Franchisor
may provide the Franchisee with consultancy or advisory or such other support
services relating to the operations of the Business, in accordance with
such terms and for payment of such fees as may be mutually agreed upon between
the parties. |
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| 6. | FRANCHISEE'S OPERATING OBLIGATIONS |
|
| 6.1 | The Franchisee acknowledges and agrees that
every detail of the System and the Franchised Center is important to the
Franchisee, the Franchisor and other franchisees in order to develop and
maintain high operating standards, to increase demand for the Products and
Services sold by all franchisees and to protect the Franchisor's reputation
and goodwill. The Franchisee further acknowledges and agrees that it will,
in a good and prudent business manner, do all things necessary to facilitate
the acquiring, opening and operating of the Franchised Centre and the conduct
of the Business in conformity with the System and in accordance with the
aforesaid understanding and the terms and conditions hereunder. |
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| 6.2 | The Franchisee shall utilise its best efforts
in good faith to operate and develop the Business of the Franchised Centre.
The Franchised Centre and the premises thereof shall, if not already established,
be established and improve at the expense of the Franchisee in accordance
with plans approved by the Franchisor, such approval not to be unreasonably
withheld. The Franchisee shall promptly apply for and diligently do all
things necessary to obtain all necessary consents for the construction works
or improvements to the premises for the carrying on of the Business from
all relevant authorities. |
|
| 6.3 | In order to maintain the highest standard of
service to be provided by the Franchisee and the Franchisor's other
franchisees operating under the System and to sustain and protect the goodwill
and prestige the Business, the Trade Name and the Trade Marks enjoy with
the public, the Franchisee agrees that : |
|
| (a) | The Franchised Centre will maintain sufficient resources
and employ sufficient staff to meet all likely demand of the Products and
Services from customers of the Franchisee. All the Products and Services
used or provided by the Franchisee under this Agreement will be of substantially
equivalent type, quantity, quality and variety as those used or provided
by the Franchisor and consistent with the business image of the Business.
The Franchisee shall not advertise or charge customers prices in excess
of or below the prices specified by the Franchisor from time to time. |
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| (b) | All the Products used, sold or distributed by the Franchisee
will be supplied directly through the Franchisor or its approved nominated
suppliers. The Franchisee shall sell the Products supplied to it in the
same condition as that in which it receives them and will not alter or remove
or tamper with them or any markings or name plates or indications of the
source of origin on them or any packaging supplied save as required for
compliance with applicable laws. |
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| (c) | No Products to be sold by the Franchisee under this Agreement
will have any of the Trade Marks imprinted thereon, attached thereto or
associated therewith without the Franchisor's prior written consent
unless the Products are supplied by the Franchisor with the Trade Marks
already imprinted thereon or attached thereto, and any such usage with the
Franchisor's consent will inure to the benefit of the Franchisor. |
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| (d) | It shall at times maintain the Franchised Centre and the
physical premises thereof in a first class manner and in accordance with
the highest business standards of the Franchisor and it shall not undertake
or allow any change or alteration in the size or appearance of the Franchised
Centre without the prior written consent of the Franchisor such consent
not to be unreasonably withheld. |
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| (e) | The Franchisee shall maintain the equipment, whether manufactured
by the Franchisor or its principal or by a source approved by the Franchisor,
in excellent working condition. |
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| (f) | In order to protect the reputation of the Franchisor and
to maintain satisfactory public relations, the Franchisor reserves the right
to communicate with any of the Franchisee's customers at any time
during the term of this Agreement to ascertain the quality of the Products
sold or the Services rendered by the Franchisee and/or its employees and
the Franchisee shall upon request furnish the Franchisor with such particulars
of its customers as the Franchisor may reasonably require. |
|
| (g) | The Franchisee will not delegate any duties or obligations
arising under this Agreement otherwise than may be expressly permitted under
its terms. The Franchisee will not grant any sub-license of the franchise
granted by Clause 2 above or any other right contained in this Agreement. |
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| (h) | The Franchisee shall promptly pay all suppliers of the Business
in accordance with their usual terms and conditions. Where the Franchisee
has purchased goods from the Franchisor, the Franchisee shall pay for the
same within thirty (30) days of the date of the relevant invoice and in
the event of default of payment, the Franchisor shall be entitled to charge
interest on the sum outstanding at the rate specified in the relevant invoice
from the date the sum was due to the date of receipt of payment by the Franchisor. |
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| (i) | The Franchisee will not claim or represent directly or indirectly
that the Products or Services supplied to the Franchisee (whether by the
Franchisor or its nominated suppliers) have any characteristics or qualities
or are suitable for any purposes other than those claimed or represented
for them by the Franchisor from time to time and undertakes (in addition
to and not in substitution for its other obligations) to indemnify and hold
the Franchisor harmless from all claims and liabilities arising out of or
consequent upon any unauthorised claims or representations made by the Franchisee
in respect of the Products or the Services. |
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| 6.4 | (a) | The Franchisee shall not undertake any advertising and promotion
in relation to the Trade Marks, Trade Name or the Business without the prior
consent in writing of the Franchisor. |
| (b) | To assure the integrity and protection of the Franchisor's
rights in the Trade Marks, the first usage thereof on signs, displays and
all advertising and promotion of any sort which the Franchisee intends to
use will be subject to the Franchisor's written consent prior to any
public use, publication or display. The Franchisee will immediately cease
the use of any advertising or promotional materials upon receipt of a request
from the Franchisor so to do. |
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| The Franchisee will participate in and comply
with the terms of any special advertising, promotion or other activity as
the Franchisor may reasonably direct. |
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| 6.5 | The Franchisee agrees to take out and maintain
with a reputable insurance company an all risks insurance coverage, (including
without limitation personal injury coverage, fire, burglary and public liability
coverage) sufficient for the nature of the Franchisee's operation
to protect against any and all claims of personal injury, death or property
damage arising out of the Franchisee's operation in amounts sufficient
to fully protect the Franchisor as above stated. At all times during the
existence of this Agreement, the Franchisee shall have such coverage in
place. The Franchisee shall deliver to the Franchisor a certified true
copy of any renewal policy or policies thereof within ten (10) days of issuance.
The Franchisee shall promptly pay all premiums on the insurance coverage
and shall upon request furnish the Franchisor with proof of payment. All
such policies shall provide for thirty (30) days minimum written notice
of cancellation to the Franchisor. |
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| 6.6 | (a) | The Franchisee shall keep complete records of its business
in accordance with the standard accounting methods established by the Franchisor.
Such records and all supporting data shall be kept and maintained for a
period of five years. |
| (b) | The Franchisee shall furnish to the Franchisor within fifteen
(15) days after the end of each month a statement of its gross receipts
for services for the preceding calendar month in accordance with the Franchisor's
standard accounting form for reporting gross receipts and other financial
information. For purpose of consolidation the Franchisor reserves the right
to show all gross receipts of the Franchisee as gross receipts of the Franchisor. |
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| (c) | The Franchisee shall submit to the Franchisor, in the form
and on the dates to be agreed upon by the Franchisor in writing, a projected
operating budget for the Franchised Centre for the following fiscal year
of the Franchisor including without limitation, projected sales of Products
and Services under this Agreement. |
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| (d) | The Franchisee shall also arrange at the Franchisee's
expense and submit to the Franchisor a copy of its audited annual financial
statements and the report of its independent public accountants within 180
days after the close of the fiscal year. |
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| (e) | The Franchisor or its agents shall, at all reasonable times,
have the right to examine, access via modem, photocopy or audit the books
and accounts of the Franchisee and to request and receive copies of purchase
invoices to verify the gross receipts and other financial information as
reported by the Franchisee to the Franchisor. |
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| 6.7 | The Franchisee shall : |
|
| (a) | not make use other than exclusively for the purposes of
the Business of any information relating to the business of the Franchisor
and ensure that none of its employees makes use of such information other
than for such purpose; |
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| (b) | only use the Intellectual Property in connection with the
Business and not register any company name or trade xxxx use of any business
name incorporating the Trade Name or Trade Xxxx or incorporating any name
of xxxx which is similar to or a colourable imitation of the Trade Name
or Trade Marks; and |
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| (c) | the Franchisee shall disclose, in all public records including,
but not limited to, all business name registrations, and in all dealings
and transactions with other persons, that it is a franchisee of the Franchisor.
The Franchisee shall contract all of its obligations in its own name and
not in the name of the Franchisor and in all correspondence relating directly
or indirectly to the business clearly indicate that it is acting as principal. |
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| 6.8 | The Franchisee shall : |
|
| (a) | obtain a signed contract of service from all persons employed
by the Franchisee prior to their employment and shall disclose confidential
information supplied by the Franchisor only to such persons who have previously
signed such an agreement of confidentiality in the form stipulated by the
Franchisor; |
|
| (b) | on taking on an employee at a level of management position
immediately inform the Franchisor thereof; and |
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| (c) | procure that the persons responsible for managing the Franchised
Centre and all senior employees required by the Franchisor shall attend
such further periods of training as may from time to time be reasonably
required by the Franchisor and bear any travel and other expenses and the
salaries of such persons. |
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| 6.9 | (a) | The Franchisee shall without delay introduce any improvement
or modification to the System into the Business at the time and in the manner
specified by the Franchisor in writing. The Franchisee shall make such
changes in its operations as may be reasonably necessary to keep its operations
up to date with the System. |
| (b) | The Franchisee shall notify the Franchisor or any improvement,
or modification of or to the System which may be beneficial to the operation
of the Business and shall irrevocably grant to the Franchisor and to other
franchisees of the Franchisor on such terms as shall be agreed a non exclusive
licence to use any such improvement or modification for a nominal sum of
one United States dollar (US$ 1). The Franchisee shall not introduce any
improvement or modification of or to the System without the prior written
consent of the Franchisor. |
|
| 6.10 | The Franchisee shall implement and thereafter
continue to operate the billing system and accounting system which have
been devised by the Franchisor and which form part of the System. |
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| 6.11 | In the event the Franchised Centre or premises
shall be damaged or destroyed by fire or other casualty, the Franchisee
shall at its expense insofar as the Franchised Centre or premises can reasonably
by repaired or restored, repair or reconstruct the Franchised Centre or
premises to at least the condition which existed just prior to the casualty
within a reasonable time in light of the circumstances and in any event
to the standards then currently applicable to other locations franchised
or operated by the Franchisor. If the Franchised Centre or premises cannot
reasonably be repaired or restored having considered all the circumstances
including the amount of insurance moneys received, then the Franchisee shall
consult with the Franchisor for the identification of an alternative Location
provided always that in the event the Franchised Centre does not recommence
operations of the Business at the new Location within six (6) months of
damage or destruction of the old Franchised Centre or premises, then an
event of force majeure shall, notwithstanding Clause 14.6 below, be deemed
to have occurred and the Franchisor shall be entitled to terminate this
Agreement by thirty (30) days' notice to the Franchisee. |
|
| 6.12 | The Franchisee shall make timely filings of all
tax returns and shall pay when due all taxes levied or assessed in connection
with the possession, ownership or operation of the Franchised Centre provided
that the Franchisee may contest the validity or the amount of tax in accordance
with applicable procedures in the Territory. The Franchisee shall use its
best endeavours and efforts to ensure that there shall not be any tax sale
or seizure of the Franchised Centre, the Location or any equipment. |
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| 6.13 | The Franchisee shall : |
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| (a) | ensure that the Business is effectively managed; |
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| (b) | carry on the operations of the Business to the highest standards
of service; |
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| (c) | use its best endeavours to promote and extend the Business; |
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| (d) | not do anything which may bring the Business into disrepute
or may have a detrimental effect on the Business; |
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| (e) | comply with all statutes, by laws and other legal requirements
relating to the Business and obtain all licenses, consents and approvals
(if any) that may be required; |
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| (f) | permit the Franchisor and any person authorised by the Franchisor,
with prior notice to be given to the Franchisee, to enter during normal
business hours into the Franchised Centre or elsewhere to inspect the same
and take copies of any documents relating to the Business. The Franchisee
shall immediately correct any deficiencies reported by the Franchisor during
the inspection of the said premises; |
|
| (g) | maintain and display such signs as are required from time
to time by the Franchisor; and |
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| (h) | comply with the terms of any default notice specifying a
breach of the provisions of this Agreement and requiring the breach to be
remedied so far as it may be capable of remedy. |
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| 7. | INTELLECTUAL PROPERTY |
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| 7.1 | The Franchisee hereby acknowledges that:- |
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| (a) | the Franchisor is the sole licensee of the Intellectual Property
and valuable goodwill attached thereto; |
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| (b) | it will hold any additional goodwill generated by the Franchisee
for the Intellectual Property or the Business as agent for the Franchisor; |
|
| (c) | the Franchisor's rights in the Trade Marks and to
the System and the Trade Name include all configurations of the marks as
indicated in all present registrations and applications as well as all configurations
of the marks as indicated in future registrations and applications and shall
extend to all representations of the said registrations and applications
in any language and combination when used in any way as a trade or product
identification or indicia of origin or sponsorship; |
|
| (d) | Insofar as allowed by the laws of Thailand, the Franchisor's
rights are not limited to the aforesaid registrations or applications, but
are additional to all other rights including common law rights which are
vested in the Franchisor as a result of its long continuing, widespread
and successful use of the Intellectual Property in Singapore, Thailand
and elsewhere; |
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| (e) | the Franchisor has by this Agreement licensed to the Franchisee
the use of the Intellectual Property only in accordance with the terms and
conditions of this Agreement; |
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| (f) | no title to the Trade Marks or the Trade Name will pass hereunder
to or through the Franchisee, and only the rights expressly granted in or
pursuant to this Agreement are provided to the Franchisee; |
|
| (g) | the Franchisee does not have the right to use and will not
use any of the Trade Marks as indicated in the present registrations and
applications or as indicated in any modified representation thereof or as
may be indicated in future registrations and applications either individually
or any combination as part of the Franchisee's corporate name, business
name or in any other way, except as specifically licensed hereunder; |
|
| (h) | any usage of the Intellectual Property by the Franchisee
(or otherwise, even though such action is a breach of this Agreement), will
enure to the benefit of the Franchisor; |
|
| (i) | the System and business system information which it obtains
pursuant to this Agreement is in addition to any skills it and its personnel
currently have and is in addition to customary or usual skills generally
possessed in the business and retail community; |
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| (j) | the System is a constantly evolving system and that the Franchisee
may be required to make significant changes to the operation of the Business
to keep its operations up to date with the System. |
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| 7.2 | The Franchisee undertakes that it will not use
and will not permit or cause the use of, the Intellectual Property except
in the manner and to the extent specifically licensed to the Franchisee
by this Agreement. Such use hereunder will accurately portray the Trade
Marks and will not jeopardise or adversely affect the goodwill attached
thereto or to the System. In the adoption of a corporation or partnership
or business name, the Franchisee shall not use any of the Trade Marks, Trade
Name or any translations, variations or abbreviations thereof, or any other
words deemed by the Franchisor to be confusingly similar to the Trade Marks
or Trade Name except for the use of "Pacific Internet" as a
business name. |
|
| 7.3 | The Franchisee shall not do anything which may
adversely affect the goodwill associated with the Franchisor and the Intellectual
Property. |
|
| 7.4 | The Franchisee shall, at the Franchisor's
expense, do all such acts and things and execute and deliver such documents
as the Franchisor reasonably deems necessary to protect the Franchisor's
rights in the Intellectual Property. |
|
| 7.5 | The Franchisee agrees that:- |
|
| (a) | As a result of this Agreement, the Franchisee or its successors
will be provided by the Franchisor in confidence with documents and other
materials which are restricted information and proprietary property, belonging
to and exclusively for the benefit of the Franchisor and constitute valuable
"trade secrets" of the Franchisor which are fully protected
by the Franchisor's copyrights. |
|
| (b) | The Franchisee will use and permit the use of the Intellectual
Property solely in connection with the Franchised Centre and for the benefit
of the Franchisee and that the Franchisee will not permit, directly or indirectly,
at any time, any disclosure or delivery of any document or other item concerning
any of the Intellectual Property or any copies or excerpts thereof, to any
person, except authorised employees of the Franchisee, or as specifically
directed by the Franchisor; nor will the Franchisee copy or imitate or aid
anyone else to copy or imitate same, either for the Franchisee's benefit
or for the benefit of any other person, firm or corporation, as principal,
agent, employee, or in any other capacity. All materials used shall correctly
reflect the parties' ownership and control of the Business. |
|
| 7.6 | The grant of the franchise to the Franchisee
to use the Intellectual Property is subject to the conditions and limitations
set forth herein, and is granted only to the extent that the Franchisor
could itself use the Intellectual Property were it not for the license being
granted herein. The parties recognise that others may have acquired or
attempted to acquire rights in or to colourable variations or copies of
the Trade Marks. The Franchisee shall promptly notify the Franchisor if
it becomes aware of it that the use of any Trade Marks pursuant to this
Agreement would violate the rights of any other third party, in which case
the Franchisor may require the Franchisee to adopt a trade name, service
xxxx or trademark other than the Trade Name or any of the Trade Marks, and
the Franchisee specifically acknowledges that such event shall not constitute
a failure or partial failure of consideration. However, the Franchisor
agrees to indemnify and hold the Franchisee harmless from and against any
claims, damages, losses, costs and expenses suffered or incurred by the
Franchisee and arising out of such violation. |
|
| 7.7 | The Franchisee will immediately notify the Franchisor
of all circumstances coming to the attention of the Franchisee which may
constitute an infringement of any of the Intellectual Property or other
intellectual property of the Franchisor or may constitute passing off in
respect of the Trade Name and any unregistered trademarks and shall take
such reasonable action in connection therewith as the Franchisor may direct
at the expense of the Franchisor to assist the Franchisor in the protection
of the Intellectual Property or other intellectual property of the Franchisor.
The Franchisee will, no later than fifteen (15) days after receiving notice
of the same, notify the Franchisor in writing of any claim, demand or suit
based upon or arising from the use of, or of any attempt by any other person,
firm or corporation to use, any of the Intellectual Property or other intellectual
property of the Franchisor. The Franchisee will also promptly notify the
Franchisor in writing of any litigation relating to this Agreement or the
Franchisee's operations hereunder instituted by the Franchisee or
by any person, firm, corporation or governmental agency against the Franchisee. |
|
| 7.8 | (a) | The Franchisor, at its expense, shall have the right in its
sole discretion to undertake the defense or prosecution, as the case may
be, of any and all claims or causes of action arising from the Franchisee's
use, under and pursuant to this Agreement, of the Intellectual Property.
The Franchisor shall have the option of conducting the defence or prosecution
(as the case may be) in the Territory in the name of the Franchisee at the
cost of the Franchisor. |
| (b) | The Franchisor, at its option, shall also have the right
in its sole discretion to advise, assist or undertake the defense or prosecution,
as the case may be, of any hearings or conferences before any governmental
agencies or litigation directly or indirectly concerning the Intellectual
Property, and the Franchisee shall promptly notify the Franchisor of any
such matters in writing. |
|
| (c) | In the event the Franchisor, pursuant to the terms of this
Clause, undertakes the defense or prosecution of any litigation, at the
request of the Franchisor, the Franchisee shall execute any and all documents
and render all such assistance and do such acts and things as may, in the
reasonable opinion of the Franchisor or legal counsel for the Franchisor,
be necessary to carry out such defense or prosecution, either in the name
of the Franchisor or in the name of the Franchisee, as the Franchisor shall
elect. |
|
| (d) | Any damage or monies recovered from third parties in any
action or proceedings regarding the Intellectual Property (excluding improvements
made by the Franchisee) shall belong to the Franchisor. |
|
| 8. | REPRESENTATIONS AND NON-OPERATING OBLIGATIONS |
|
| 8.1 | The Franchisee represents and warrants to the
Franchisor, with the intention that the Franchisor will rely thereon in
entering into this Agreement, that:- |
|
| (a) | The Franchisee is a corporation duly organised, in good standing,
and qualified to do business under the laws of the Territory. |
|
| (b) | There will not be any issue of any shares by or any change in
the share capital of the Franchisee or any transfer of any shares in the Franchisee
other than with the prior written consent of the Franchisor. |
|
| (c) | The execution, delivery, consummation or performance of this Agreement
does not conflict with, or constitute a material breach of any contract, agreement,
mortgage, bylaw provision, lease or restriction of any nature to which the
Franchisee is a party. So long as this Agreement is in effect, the Franchisee
will not undertake any obligations the performance of which would constitute
a material breach hereunder or would materially affect the Franchisee's performance
hereunder. |
|
| (d) | The Franchisee has all necessary corporate power and authority
to execute, deliver, consummate, and perform this Agreement,
and it shall be a binding agreement upon the Franchisee
and its successors and assigns when executed. |
|
| (e) | The Franchisee has no material liabilities, adverse
claims, commitments or obligations of any nature whether accrued, unliquidated,
absolute, contingent or otherwise which are not reflected as liabilities on
the balance sheets of the Franchisee as contained in the financial statements
or otherwise disclosed therein. |
|
| (f) | The Franchisee will obtain all governmental approvals necessary for
the execution of this Agreement and the payments to be made by the Franchisee
to the Franchisor hereunder, and shall furnish true and complete copies of
such approvals upon request to the Franchisor. The Franchisee shall use its
best efforts to assist the Franchisor in obtaining any rulings or approvals
from any government or any agency thereof which the Franchisor believes are
necessary to effectuate the intent of this Agreement. |
|
| (g) | There are no actions, suites, proceedings, or investigations pending,
or to the knowledge of any of the officers or directors of the Franchisee,
threatened in any court or before any governmental agency or institution,
or any basis for any claim, action, suit, proceedings or investigation, which
affects or could affect, directly or indirectly, any of the assets, properties,
rights or business of the Franchisee, or the right of the Franchisee
to operate and use its assets, properties or rights and carry on its business. |
|
| 8.2 | All representations and warranties of the Franchisee contained in
this Agreement shall be complete, correct and accurate on the date hereof,
shall remain in effect thereafter so long as this Agreement is in effect and
shall survive any termination of this Agreement. The Franchisee
shall inform the Franchisor in writing immediately if any of the representations
and warranties of the Franchisee contained herein shall become incomplete,
incorrect or inaccurate for any reason whatsoever, and the Franchisee shall immediately make efforts to cure
such situation. The Franchisee's failure to immediately
inform the Franchisor of such situation or to correct such situation shall
be a material breach of this Agreement. |
|
| 8.3 | The Franchisee will make and maintain full, accurate and adequate
records in a permanent form and pursuant to generally accepted accounting
principles consistently applied, pertaining to its business, pursuant to this
Agreement, which records shall be, at a minimum, those required by and shall
be maintained for the period prescribed by applicable tax regulations. All
such records shall be made available to the Franchisor at all reasonable times
for such inspection and audit as the Franchisor deems necessary. The Franchisee
hereby grants the Franchisor and its agents, designees and employees with
prior notice to be given to the Franchisee access at all times during normal
business hours to all such records, including without limitation invoices
and any other documents of any nature relating to financial
statements of the Franchisee which the Franchisor may require to be
furnished and the right to inspect, test, copy, sample and audit such records
at the Franchisor's expense and to observe the operations of the Franchisee
at the office of the Franchisee and at the location of the Franchised Centre
operated pursuant to this Agreement. |
|
| 8.4 | The Franchisee shall upon request furnish the Franchisor with copies
of its most recent financial statements relating to the Business and such
other statements to be delivered hereunder. These statements are and shall
be prepared in accordance with generally accepted accounting principals consistently
applied and are and shall be complete, accurate, correct and shall present
fairly the financial condition of the Franchisee as of the dates of such statements
and the results of operations for the most recent periods then ended. The
Franchisee agrees that it will at all times during the term of this Agreement
maintain sufficient working capital to faithfully fulfil its obligations under
this Agreement. |
|
| 8.5 | The Franchisee will operate the Business in compliance with the System
and all applicable ordinances, laws, regulations and
other requirements of any governmental authority,
including agencies thereof, and will obtain and pay for all necessary licenses,
permits or consents of whatsoever kind or character, and the Franchisee will
pay or cause to be paid prior to delinquency all taxes, fines, fees or assessments
arising out of or in connection with the operation of its business hereunder.
The Franchisee recognises that there are or may be registration and disclosure
franchise laws and regulations, and the Franchisee specifically agrees (without
limiting the general applications of this sub-Clause) to comply with such
laws and regulations. Anything herein to the contrary notwithstanding, the
Franchisee may contest the applicability of any such law or ordinance so long
as the Franchisee continues to comply with, such law or ordinance pending
such contest. |
|
| 9. | NON-COMPETITION |
|
| 9.1 | The Franchisee shall devote its best efforts to the conduct of the Business hereunder, and the Franchisee will not during the currency of this Agreement in the Territory and elsewhere : |
|
| (a) | be engaged in Internet related businesses and the provision of computer on line services in a manner and style similar to or resembling the System or use the Intellectual Property; |
|
| (b) | be directly or indirectly engaged or concerned in, whether as employee, proprietor, partner, director, shareholder, officer or otherwise, the conduct of any business offering the same or similar Products or Services which competes with the Business; |
|
| (c) | carry on for its own account either alone or in partnership or be concerned in any company engaged in any business competing with the Business; |
|
| (d) | solicit, interfere with or endeavour to entice away or employ in any capacity, any employee or agent of the Franchisor or of the Franchisor's other franchisees without the prior written consent of the Franchisor or such other franchisees (as the case may be); |
|
| (e) | assist any person, firm or company with technical advice in relation to any business competing with the Business; |
|
| (f) | otherwise be interested, directly or indirectly, in any business competing with the Business. |
|
| 9.2 | The restrictions aforesaid in Clause 9.1 shall continue to apply for a period of two (2) years from the expiry or earlier termination of this Agreement. |
|
| 9.3 | While the restrictions aforesaid in Clause 9.1 are considered by the parties to be reasonable in all the circumstances it is agreed that if any one or more of such restrictions shall either taken by itself or themselves together be adjudged to go beyond what is reasonable in all the circumstances for the protection of the Franchisor's legitimate interest but would be adjudged reasonable if any particular restriction or restrictions were deleted or if any part or parts of the wording thereof were deleted, restricted or limited in a particular manner then the restrictions shall apply with such deletions, restrictions or limitations, as the case may be. |
|
| 9.4 | The provisions of this Clause shall continue to be valid and binding upon the Franchisee notwithstanding the termination of this Agreement pursuant to Clause 11 below or otherwise. |
|
| 10. | INDEMNITY |
|
| The Franchisee hereby indemnifies and agrees to defend and hold the Franchisor harmless from any and all claims, causes of action, fines, penalties, liabilities (including statutory and other liability under worker's compensation, professional negligence matters and other employer's liability laws), damages, suits or judgments, including costs of investigation, court costs and reasonable attorney's fees, arising as a result of, or in connection with the operation of the Business by the Franchisee pursuant to this Agreement unless the same arises substantially or materially from the Franchisor's wilful default or negligence or in connection with claims for damages as the result of injury or death of any person or damage to property sustained by the Franchisee and all other persons which either arise from or in any manner grow out of any statutory basis of liability or from an act, error, omission or neglect by the Franchisee, its agents, employees, licensees, invitees and contractors appointed by the Franchisee, and the Franchisor shall have no obligation or liability in connection therewith or arising therefrom. The Franchisor shall have the right to approve the attorney to defend any such claim or cause of action against which the Franchisor is indemnified hereby at the Franchisee's expense if such action is brought against the Franchisor. |
||
| 11. | TERMINATION |
|
| 11.1 | If the Franchisee fails to make any payment when due hereunder and the default continues for a period of thirty (30) days following written notice thereof to the Franchisee by the Franchisor, the Franchisor shall have the right to terminate this Agreement without further notice or action by the Franchisor. |
|
| 11.2 | The Franchisor shall also have the right to terminate this Agreement forthwith upon the occurrence of any one of the following:- |
|
| (a) | the Franchisee fails to operate and/or maintain the Franchised Centre in accordance with this Agreement and the Franchisor's reasonable instructions and to remedy such failure within thirty (30) days after receipt by the Franchisee of the Franchisor's notice in this regard; |
|
| (b) | conduct of the Franchisee which in reasonable opinion of the Franchisor has a detrimental effect on the operation, reputation and goodwill of the Franchisor or the Business, and the Franchisee fails to remedy the effect within thirty (30) days from receipt of the Franchisor's notice in this regard; |
|
| (c) | the Franchisee transfers any rights, licences, obligations contained in this Agreement other than in accordance with the terms hereof; |
|
| (d) | the Franchisee fails to submit to the Franchisor any of the accounting or management information required to be submitted within the stipulated time periods or, in the case of a genuine delay, within the grace period of thirty (30) days after the end of such time period. |
|
| (e) | the Franchisee discloses or allows disclosure of trade secrets or other confidential information relating to the Business or the System otherwise than in accordance with the terms of this Agreement; |
|
| (f) | the Franchisee fails to obtain prior written approval or consent of the Franchisor expressly required by this Agreement; |
|
| (g) | in the event of the Franchisee ceasing or threatening to cease to carry on business in the Territory or voluntarily abandons the operations of the Business (other than with the consent of the Franchisor); |
|
| (h) | in the event of the Franchisee going into bankruptcy or liquidation (whether voluntarily or involuntarily) or being unable to pay its debts or suffering a distress or execution to be levied on or a receiver appointed over any property used in connection with the Business or if the Franchisee makes any arrangements with its creditors; |
|
| (i) | in the event of any complaint to the Franchisor as to quality of service given by the Franchisee and the cause of such complaint is not rectified or remedied within thirty (30) days from receipt by the Franchisee of the Franchisor's notice; |
|
| (j) | without prejudice to Clause 11.1, if the Franchisee is in breach of any terms of this Agreement and the Franchisor shall have notified the Franchisee in writing of such breach and the Franchisee shall not have rectified such breach within 30 days (for the avoidance of doubt, it is expressly acknowledged that no notice to rectify a breach need be delivered to the Franchisee prior to exercise by the Franchisor of its right to immediately terminate this Agreement upon the occurrence of any other event specifically listed in this Clause 11.2); |
|
| (k) | in the event of any repeated breach of any of the Franchisee's obligations under this Agreement. For the purpose of this sub-Clause a repeated breach shall be interpreted as two or more breaches of any of the Franchisee's obligations in any twelve month period; |
|
| (l) | the inability, in the Franchisor's opinion, of the Franchisee to meet any of its debts as they mature or within such grace period as the third party creditor may grant, or occurrences similar to the foregoing; |
|
| (m) | the Franchisee failing to comply with any governmental laws or regulations in the Territory and, where remediable, not remedied within thirty (30) days of such default; |
|
| (n) | where the Franchisee owns the Location, the Franchisee transfers, sells, parts with possession, mortgages or otherwise encumbers the Location without the prior consent of the Franchisor; |
|
| (o) | the Franchisee commits an act which would constitute a breach of the provisions of Clause 9 of this Agreement; |
|
| (p) | any government or agency thereof in the Territory fails to approve the remittance out of the Territory (other than arising by default of the Franchisor) of any payment due from the Franchisee to the Franchisor hereunder (during which time the Franchisee shall deposit the payments due hereunder into a bank account designated by the Franchisor for its own benefit), and where remediable, the Franchisee fails to so remedy within thirty (30) days of such failure; |
|
| (q) | if any invalidation of the Trade Marks by the government of the Territory is caused by acts or omissions of the Franchisee which, if remediable, is not so remedied within thirty (30) days of such invalidation or notice of such act or omission is given (whichever is earlier), the Franchisor may, at its option, terminate this Agreement as provided herein; |
|
| (r) | the submission by the Franchisee of any information to the Franchisor, to any governmental authority, or to any financial institution which contains any inaccurate, incomplete or misleading statements, or omits any material fact necessary in order to make the statements made not misleading, and where remediable, is not remedied within thirty (30) days of notice of such default; or |
|
| (s) | to the extent permitted by law, in the event of the Franchisor ceasing for any reason whatsoever to carry on the Business or to be a licensee of the Trade Marks. |
|
| Upon the occurrence of any of the events aforesaid, the Franchisor, at its option, may deliver to the Franchisee a notice of termination, and this Agreement will immediately wholly terminate. |
||
| 11.3 | The Franchisee will have the right to terminate this Agreement in the event that the Franchisor materially defaults in the performance of any term, covenant or condition provided in this Agreement, and such default continues for a period of thirty (30) days following notice thereof to the Franchisor. In any such event, the Franchisee at its option, may deliver to the Franchisor a notice of termination, and this Agreement will wholly terminate. |
|
| 11.4 | Save as provided in Clause 11.3 above, the Franchisee shall not be entitled to terminate this Agreement. |
|
| 11.5 | The termination of this Agreement (for whatever reason) shall not terminate any provision which is expressly or by implication provided to come into or continue in force after such termination and shall be without prejudice to the rights of either party against the other in respect of any antecedent breach of any of the terms and conditions of this Agreement. In the event of any termination by the Franchisor the Franchisee shall not be entitled to recover any part of the fees paid to the Franchisor including without limitation the Licence Fee. |
|
| 12. | OBLIGATIONS OF THE FRANCHISEE UPON TERMINATION |
|
| 12.1 | Upon the termination or expiration of this Agreement for any reason whatsoever:- |
|
| (a) | the Franchisee's right to use in any manner whatsoever the Intellectual Property, including but not limited to the Trade Name, Trade Marks or any other xxxx or name associated with the Franchisor or used in connection with the operation of the Franchised Centre shall terminate forthwith. The Franchisee shall not thereafter, directly or indirectly, identify itself in any manner as a franchisee of the Franchisor or publicly identify itself as a former franchisee of the Franchisor and the Franchisee will immediately sign all the necessary forms and documents and do all the necessary acts in order to de-register the Franchisee as the registered user of the Trade Marks with the relevant authorities in the Territory. If the Franchisee fails or refuses to execute any document necessary to cause the discontinuance of the Franchisee's use of and deregistration of the Franchisee's interest in the Trade Marks, the Franchisee irrevocably appoints the Franchisor as its attorney to do so for and on behalf of the Franchisee; |
|
| (b) | the Franchisee shall forthwith cease to carry on the Business and to use the Intellectual Property (the Franchisee's licence to use which is terminated) and to sign such confirmation of cessation of use of the Intellectual Property as is required by the Franchisor; |
|
| (c) | the Franchisee will destroy all signs used in relation to the Business and other documents and other printed matter whatsoever relating to the System. The Franchisee shall bear all costs incurred in compliance with this Clause; and |
|
| (d) | the Franchisee shall return to the Franchisor:- |
|
| (i) | all samples and publicity promotional and advertising material used in the Business; and |
|
| (ii) | all originals and copies of all documents and information containing or covering in any way any part of the Intellectual Property. |
|
| 12.2 | Upon the termination of this Agreement for any reason whatsoever, the Franchisor or its nominee or designee shall have the option, exercisable within sixty (60) days after such termination becomes effective, to purchase as soon as practicable thereafter (the date of which such purchase is completed being hereinafter referred to as "the Closing Date") any or all of the following operating assets of the Franchisee relating to the Franchise under this Agreement upon the terms and conditions set out below: |
|
| (a) | all saleable inventory will be purchased at the original cost price provided by the Franchisor. For the purpose of this Clause, the term "saleable" is defined to mean all items of merchandise which have been paid for by and belong to the Franchisee and are in a condition proper for current sale and specifically excludes items which require reconditioning or reworking, items which are not usable or saleable through normal distribution channels, items which are obsolete, damaged, or deteriorated, and consigned merchandise; and |
|
| (b) | all equipment owned by the Franchisee, acquired from the Franchisor and used in the Business may be purchased by the Franchisor or its nominee or designee at the depreciated book value or, where there is an agreement, on such value or price that is mutually agreed between the Franchisor and the Franchisee. |
|
| 12.3 | In the event the Franchisor decides not to exercise its option to purchase the operating assets of the Franchisee relating to the Business, the Franchisee shall be entitled within a period of thirty (30) days from the expiry of such option to sell off its remaining inventory of the Products upon such terms and conditions as it may deem fit. |
|
| 13. | ASSIGNMENT |
|
| 13.1 | This Agreement and all rights of the Franchisor hereunder may be assigned, transferred or otherwise dealt with by the Franchisor and shall enure for the benefit of the successors and assigns of the Franchisor. This Agreement will not be assigned, transferred or otherwise dealt with by the Franchisee in whole or in part, directly or indirectly without the prior written consent of the Franchisor. Any such assignment or attempted assignment without the prior written consent of the Franchisor shall be a material breach of this Agreement. The direct or indirect sale of a controlling interest in the Franchisee shall be deemed to be an assignment. |
|
| 13.2 | If the Franchisor consents to the assignment of this Agreement, the Franchisee shall pay all costs and expenses incurred by the Franchisor associated with the request for assignment. |
|
| 14. | GENERAL |
|
| 14.1 | This Agreement is the complete and only agreement between the parties, and supersedes all prior negotiations, representations and prior written or oral understandings. No variation, modification or alteration of any of the terms of this Agreement shall be of any effect unless evidenced in writing signed by or on behalf of each of the parties hereto by a duly authorised representative. |
|
| 14.2 | This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. |
|
| 14.3 | Either party hereto will have the right to require specific performance of the other party. |
|
| 14.4 | The failure of either party to enforce at any time or for any period of time any provision of this Agreement will not be construed to be a waiver of such provision or of the right of such party thereafter to enforce each such provision. |
|
| 14.5 | (a) | The Franchisee acknowledges that it has been advised to seek other appropriate independent advice and that the decision to enter into this Agreement has been taken solely on the basis of personal judgement and experience of the Franchisee having taken such independent advice. Accordingly, the Franchisee acknowledges that no inducement or promise express or implied had been made by the Franchisor or relied upon by the Franchisee in entering into this Agreement. |
| (b) | The Franchisee acknowledges that in giving advice to the Franchisee, assisting the Franchisee to establish the Business, recommending equipment and materials and assessing the suitability of sites for the Franchised Centre, the Franchisor has based its recommendations on experience actually obtained in practice (in Singapore) but that the Franchisor does not give any guarantee or warranty with regard to such matters or generally in connection with the sales volume, profitability or other aspects of the Business. |
|
| 14.6 | Notwithstanding anything herein to the contrary, and except in respect of payments due ereunder, the Franchisor and/or the Franchisee shall not be responsible in damages to the other for any failure or delay in performance hereunder due to:- |
|
| (a) | any governmental act or regulation; |
|
| (b) | war, civil commotion, earthquake, fire, flood or other disaster or similar event; or |
|
| (c) | any other event beyond such party's control; |
|
| provided, however, such party shall take all steps reasonably possible to mitigate damages caused by such failure or delay. Notwithstanding the foregoing, if such failure or delay shall continue for more than one hundred and eighty (180) days, either party shall have the right at any time thereafter during the continuance of such failure or delay, to terminate this Agreement by giving thirty (30) days prior notice thereof to the other party. |
||
| 14.7 | Neither the Franchisor nor the Franchisee shall issue or cause to be issued any press release, publicity or other public statement concerning this Agreement without the prior written consent of the other party except where such disclosure is required by applicable laws or regulations including without limitation the regulations of any stock exchange. |
|
| 14.8 | If any provision of this Agreement, in whole or in part, is held by a court of competent jurisdiction to be invalid, the remainder hereof will not be affected thereby. |
|
| 14.9 | (a) | The Franchisee is an independent contractor, and neither the Franchisee nor its employees shall be construed to be either legal or implied agents, servants or employees of the Franchisor and have no authority whatsoever to act for or on behalf of the Franchisor. The Franchisee will have no right or authority and will not attempt to negotiate, enter into, permit or cause its employees to negotiate or attempt to or enter into contracts or commitments of any nature in name of or on behalf of the Franchisor that purport to bind the Franchisor in any respect whatsoever. |
| (b) | The Franchisee shall control the manner and means of the operation of the Business and the Franchised Centre and exercise complete control over and responsibility for all labour relations and the conduct of the Franchisee's agents and employees, including, but not limited to, the day-to-day operations of the Franchised Centre and its employees. The Franchisee's agents and employees shall not be considered or held out to be agents or employees of the Franchisor and shall not negotiate or enter any agreement or incur any liability in the name of or on behalf of, or that purports to bind, the Franchisor. |
|
| (c) | The parties hereto expressly agree that nothing contained or implied in this Agreement shall constitute or be deemed to constitute a partnership between the parties nor constitute nor be deemed to constitute any party as an agent or an affiliate of the other party for any purpose whatsoever. |
|
| 14.10 | Notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid first class post with recorded delivery, or by telex, or legible telefax addressed to the intended recipient at its address set out in this Agreement or to such other address or telex and telefax number as any party may from time to time duly notify to the others. Any such notice, demand or communication shall, unless the contrary is proved, be deemed to have been duly served (if given or made by telefax or telex on the next following business day in the place of receipt or (if given or made by first class letter) 72 hours after posting and in proving the same it shall be sufficient to show in the case of a letter, that the envelope containing the same was duly addressed, correctly stamped and posted and, in the case of a telex or telefax, that such telex or telefax was duly dispatched to a current telex or telefax number of the addressee. |
|
| 14.11 | Each party to this Agreement shall bear all its own legal and other costs and expenses incurred in the preparation and execution of this Agreement provided that all stamp duties payable shall be borne by the Franchisee. |
|
| 14.12 | (a) | This Agreement shall be governed by and construed in accordance with the laws of Thailand. |
| (b) | All disputes between the parties as to any matter arising out of or in connection with this Agreement shall be referred to the arbitration in London of a single arbitrator to be appointed by agreement between the parties or, if such agreement is not reached within 14 days of the date on which the name of a proposed arbitrator shall have been submitted by either party to the other, to be appointed by the Chairman of the International Chamber of Commerce and provided that such arbitration shall be conducted in accordance with its rules. |
|
| 15. | COUNTERPART |
|
| This Agreement may be signed in any number of counterparts, all of which when taken together and delivered to the Franchisor and the Franchisee shall constitute one and the same instrument. Any party may enter into this Agreement by signing such counterpart. |
||
SCHEDULE A
LIST OF SERVICES
INDIVIDUAL DIAL-UP SERVICE
The individual dial-up service offers users a full PPP connection to the Internet using a modem and a regular phone line. In addition to a full PPP connection, every user will be given an email account and a complimentary 1 MB disk space for their personal home page. There are 3 different access service, namely Easy Lite, Easy Plus and Easy Pro.
PREPAID SERVICES
The prepaid services consist of Easy Start and Easy Surf packages.
BUSINESS CLASS DIAL-UP SERVICE
Business class dial-up is a dial up access service that comes with a personalised corporate email address (in the form of ‘xxxx@xxx.xxx.xx') without having to run their own mail server. Users can access the Internet through the same dial-up PPP connections as other basic analog dial-up users at the same rates. Depending on the number of free hours and user access accounts provided, the access service provided are called Corporate Group Dial-ups 5, 10, 15 and 20.
PERSONAL ISDN DIAL-UP SERVICE
Personal ISDN dial-up service gives users a full PPP connection at 64Kbps. Every personal ISDN account is also analog enabled, meaning that they can also use a regular modem and phone line to dial in to the Internet. Personal ISDN users are provided with an email account and a complimentary 1 MB disk space for their personal home page. A number of access plans with different free hours would be provided.
NETWORK ISDN DIAL-UP SERVICE
Network ISDN service is a dial-up service using ISDN. It is catered for companies who already have their internal LAN and want to be able to share a common Internet connection with minimum set up and running cost. The choice of 64Kbps or 128Kbps bandwidth is on a dial-on-demand basis. The service includes free rental of an ISDN router at the customer's premise.
LEASED LINE SERVICE
A leased line connection provides a 24-hour link to the Internet at speeds ranging from 19.2Kbps to 2Mbs. A company can use this bandwidth to set up its own website, to provide product information, corporate news, and support to users, and at the same time provide Internet facilities to its own employees. In addition, a leased line's high speed connection makes it possible to run bandwidth extensive applications such as video conferencing, live video broadcasting and many others.
IP SHARER
The IP sharer consists of dial-up account with an MPP connection of up to 4 concurrent connection.
DNS HOSTING
A domain name is an unique, personalized address that represents a given location (such as a web site) on the Internet. Domain names make it easy for visitors to find a user's web site and remember email addresses. DNS hosting refers to the ability of one system to host multiple domains. The DNS will either be used for domain parking or modification.
WEB HOSTING
Web hosting allows a customer to host their web pages on Pacific Internet's backbone, with an URL address provided (xxx.xxxxxxxxxxx.xxx). It could either be on Unix or NT server. A space is provided either on a shared server or dedicated servers.
SERVER COLOCATION
Server co-location refers to the placement of customer's server at Pacific Internet's premises, with a 24 hours manned and environmentally-controlled rack space, electrical power and Internet connectivity to house the server.
WEB ADVERTISING
With web advertising, customers can have their banners posted on Pacific Internet's home page and advertisements placed on their products.
WEB SECRETARY
Web secretary is a virtual online secretary, which helps a user to remember appointments, meetings, birthdays, anniversaries and sends reminders either through emails or pagers. With web secretary, one can now access schedule anytime. Besides being organised, it also helps the user to update events or happenings around the town.
MILLENIUM MANAGER
An online tool for all the user's account management including Account Manager, Email Manager, Billing Manager, Homepage Manager and Usage Manager.
FAMILY DIAL-UP SERVICE
This is similar to Singapore's Family Dial-up Service with up to five (5) supplement email account. In addition, a filtering proxy facility called CyberGuard is provided to filter undesirable content.
TIME PLUS
A value added service which allows users to carry forward their unused hours to the following month
SCHEDULE B
SERVICE MARKS
| SERVICE XXXX NO. | CLASS | SERVICE XXXX DETAILS | STATUS | COUNTRY |
| 316548 | 35 | Business information provided by means of a global computer network | Registered | Thailand |
| 316549 | 38 | Telecommunications by means of a global computer network; provision of information services relating to telecommunications by means of a global computer network; advisory services relating to telecommunications by means of a global computer network; electronic mail services by means of a global computer network; provision of information services relating to electronic mail services by means of a global computer network; electronic transmission of messages and data between remote users of a global computer network; advisory services relating to electronic mail services by means of a global computer network; provision of information services relating to electronic transmission of messages and data between remote users of global computer network; advisory services relating to electronic transmission of messages and data between remote users of a global computer network; electronic data interchange services; provision of information relating to electronic data interchange services; advisory services relating to electronic data interchanges services; computer aided transmission of message and images; provision of information services relating to computer aided transmission of message and images; advisory services relating to computer aided transmission of messages and images. | Registered | Thailand |
IN WITNESS WHEREOF, the Franchisor and the Franchisee have executed this Agreement this 7th day of February 2002.
| Franchisor | ||
| SIGNED by TAN TONG HAI for and on behalf of PACIFIC INTERNET LIMITED |
) ) ) ) |
/s/ Tan Tong Hai |
in the presence of /s/ Mah Swee Keong |
||
| Franchisee | ||
| SIGNED by PRITHAYUTH NIVASABUTR for and on behalf of PACIFIC INTERNET (THAILAND) LTD in the presence of: |
) ) ) ) ) |
/s/ Prithayuth Nivasabutr |
