Exhibit 10.25
[OPENAIR LOGO]
THIS AGREEMENT is made the 2nd day of April 2003
BETWEEN:
1. Easyair Limited (Registered No 4313723) whose registered office is at The
Chemistry Lab, 00 Xxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxx XX0X OLY ("OpenAir");
and
2. Swiftnet Limited (Registered No 2469394) whose registered office is at
Xxxxxxxxx Xxxxx, 000 Xxxx Xxxx, Xxxxxx X00 0XX ("the Company")
WHEREAS
(A) OpenAir supplies certain telecommunications goods and services
(B) The Company promotes and sells such goods and services to third parties
(C) OpenAir has agreed to supply such goods and services to the Company in
accordance with the terms and conditions of this Agreement
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement the following terms shall have the following meanings:
"Customer" means a person, partnership, limited Company or any
other third party to whom the Company promotes or sells
goods or services;
"Force Majeure" means in relation to either party any circumstances
beyond the reasonable control of that party (including
without limitation, any industrial action, act of God,
sabotage, riot, explosion, national emergency, war,
prohibitive government regulation or delay or failure in
manufacture, production or supply by third parties of
the Goods or network services), which prevents such
party from fully performing its obligations under
Agreement.
"Goods" means GSM cellular equipment including mobile telephones
and related accessories, which OpenAir is to supply to
the Company for re-sale to any Customer in accordance
with this Agreement;
Xxxx Xxxxx, Xxxxxx Xxxx, Xxxxx, Xxxxxxxx XX0 0XX Tel: 0000 000 0000
Website: xxx.xxxxxxx.xxx
OPENAIR is a subsidiary of EasyAir Limited Company
Reg. No. 4313723 VAT No. 795 4920 80
"Manual means" Openair's operations manual which incorporates Openair's
terms and conditions of trading. The Manual is attached
to this Agreement as Appendix A and comprises part of
this Agreement;
Payment Plan Means Openair's payments and schedules that
incorporate connection bonuses, loyalty bonuses, call
charge discounts, line rental discount, claw back and
payment terms. The Payment Plan is attached as Appendix
B and comprises part of this agreement:
Price List means the network's standard published tariff's
that are available for resell and provide by OpenAir.
The Price List is to be used in conjunction with the
Payment Plan. The Price List is attached to this
agreement as Appendix C and comprises part of this
agreement:
"Services" means the services described in the Price List, which
OpenAir will supply to the Company for re-sale by the
Company to the Customers;
"Network Agreement" means the agreement between OpenAir and any telephonic
network provider relating to the Goods and/or Services;
"Network Provider" means the telephonic network provider with
whom OpenAir has entered into the Network Agreement
relating to the Goods and/or Services
1.2 The headings in this Agreement are for convenience only and shall not
affect its interpretation
2. SUPPLY OF GOODS AND SERVICES
2.1 During the continuance of this Agreement OpenAir shall sell and the
Company shall purchase such quantities of the Goods and such Services as
may be ordered by the Company from time to time subject to the terms and
conditions of this Agreement.
2.2 All sales of the Goods and Services by OpenAir to the Company pursuant to
this Agreement shall be subject to the terms and conditions set out in the
Manual from time to time.
2.3 The Company shall be responsible to OpenAir for ensuring the accuracy and
completeness of the terms of any order pursuant to this Agreement, and for
giving OpenAir any necessary information relating to the Goods and
Services within a sufficient time to enable OpenAir to perform its
obligations under this Agreement
3. PRICE AND PAYMENT
3.1 The price of the Goods or Services shall be as set out in the Price List.
3.2 OpenAir reserves the right, by giving notice to the Company at any time
before delivery, to increase the price of Goods or Services to reflect any
increase in the cost to OpenAir which is due to any factor beyond the
control of OpenAir (such as, without limitation, any alteration of duties,
any significant increase in the costs of labour, materials or other costs
of purchase), or any changes in delivery dates or quantities of the Goods
or Services which is requested by the Company, or any delay caused by any
instructions of the Company or failure of the Company to give OpenAir
adequate information or instructions. OpenAir may also increase the price
of goods or services should there be some statutory provision, which
materially affects the provision of such goods or services
3.3 Unless otherwise agreed in writing by OpenAir, all prices given by OpenAir
for the Goods are on an ex works basis, and where OpenAir agrees to
deliver the Goods otherwise than at Openair's premises the Company shall
be liable to pay Openair's charges for transport, packaging and insurance
3.4 The price for the Goods or Services and all other sums due to OpenAir
under this Agreement shall be exclusive of any applicable value added tax,
which the Company shall be additionally liable to pay to OpenAir at the
appropriate rate
3.5 OpenAir shall be entitled to invoice the Company for the price of the
Goods or Services monthly as described in the Price List
3.6 In consideration of Openair's supply of the Goods and Services pursuant to
this Agreement, the Company shall pay the price (together with any
applicable Value added tax) within 45 days of the date of Openair's invoice or
as set out in the Payment Plan. The Company's payment obligation under this
clause 3.6 shall not be conditional on the receipt by the Company of amounts due
to it by Customers.
3.7 If the Company fails to pay on the due date any sum due under this
Agreement from the Company to OpenAir then, without prejudice to any other
right or remedy available to OpenAir, OpenAir shall be entitled to:-
3.7.1 If the Company fails to pay on the due date any sum due under this
Agreement from the Company to OpenAir then, without prejudice to any
other right or remedy available to OpenAir, OpenAir shall be
entitled to:-
3.7.2 Suspend deliveries of Goods and Services until payment of the full
amount (including any interest) has been received by OpenAir from
the Company; and
3.7.3 Offset any monies due from the Company against any monies due to the
Company. The Company shall similarly have the right to offset any
monies due from OpenAir against any monies due to OpenAir.
3.8 On termination of this Agreement due to breach by or insolvency of
the Company, as described in clauses 9.2.1, 9.2.3, 9.2.4 or 9.2.5,
OpenAir shall have the option to continue to provide Goods and
Services to the Customers. In such circumstances, the Company will
use its reasonable endeavours to assist with the transfer of the
Customers to OpenAir, including providing all relevant customer
information including copies of the original customer agreements.
4. COMMISSIONS
4.1 In consideration of the Company's performance of its obligations pursuant
to this Agreement, OpenAir shall pay the Company a commission on each new
Connection of a Customer in accordance with the provisions of the Payment Plan
at the date of Openair's acceptance of such order
4.2 The Company shall submit an invoice to OpenAir for the commission and
OpenAir shall make the payment as specified in the Payment Plan
4.3 No commission shall be payable or allowed by OpenAir in respect of any
order received by OpenAir after the termination of this Agreement for
whatever reason notwithstanding that quotations may have been submitted
during the term of this Agreement
4.4 Either party has the right to set-off any sums due under this Agreement
against any sums owing to the other party pursuant to this clause 4 or as
provided in the Payment Plan
4.5 The Company agrees that it will promptly repay to OpenAir any commissions
that become repayable subject to and in accordance with the clawback
provisions in the Payment Plan
5. DELIVERY OF GOODS
5.1 OpenAir shall use all reasonable endeavours to maintain sufficient
supplies of the Goods to fulfill its obligations under this Agreement
5.2 OpenAir shall use all reasonable endeavours to deliver each of the
Company's orders for the Goods on the date specified in the order, but the
time of delivery shall not be of the essence and if despite those
endeavours OpenAir is unable for any reason to fulfill any delivery of the
Goods on the specified date then OpenAir shall not be deemed to be in
breach of this Agreement or have any liability to the Company howsoever
arising
5.3 Delivery of the Goods shall take place at Openair's premises at Xxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx XX0 0XX, but OpenAir shall at the Company's
request arrange for suitable transport to the Company's premises, in which
case all costs incurred in connection with the transport, packing,
delivery and insurance of the Goods shall be borne by the Company.
5.4 Risk in and responsibility for the Goods shall pass to the Company:-
5.4.1 in the case of Goods to be delivered at Openair's premises, at the
time when OpenAri notifies the Company that the Goods are available
for collection; or
5.4.2 in the case of Goods to be delivered otherwise than at Openair's
premises, at the time of delivery
5.5 Notwithstanding delivery and the passing of risk in the Goods, the
property in the Goods shall not pass to the Company until OpenAir has
received in cleared funds payment in full of the price of the Goods and
all other Goods agreed to be sold by OpenAir to the Company for which
payment is then due. OpenAir may reasonably request the Company to store
and xxxx as being the property of OpenAir any Goods for which payment has
not been made, and to effect proper insurance cover in respect of such
Goods.
6. THE COMPANY'S RESPONSIBILITIES
6.1 The Company shall:
6.1.1 use its reasonable endeavours to promote the resale of Goods and
Services to Customers
6.1.2 conform and adhere to the manual for the soliciting and processing
of orders from Customers;
6.1.3 comply with the rules of the Mobile Communications Crime Prevention
Scheme established by the Federation of Communication Services
Limited as amended from time to time. These rules can be found in
the Manual;
6.1.4 inform OpenAir of any changes in the ownership or organization of
the Company or in the Company's methods of doing business which
might affect the performance of or financial ability to comply with
the Company's obligations under this Agreement;
6.1.5 comply with all applicable laws and regulations concerning the
marketing and sales of Goods and Services to the Customers;
6.1.6 maintain appropriate, full, proper and up-to-date records relating
to the operation of this Agreement and details of customers with a
suitable quality management systems to demonstrate proper control of
its activities in the provision of services to Customers.
6.1.7 ensure that its employees posses the necessary skills, experience
and qualifications to ensure that the Company complies with its
obligations under this Agreement;
6.1.8 submit any reports reasonably requested by OpenAir in a timely
manner; and
6.1.9 co-operate full with OpenAir to resolve any complaints from
Customers and afford customers the opportunity to resolve complaints
in respect of the services supplied by the Network Provider by means
of arbitration procedures if appropriate established by the Network
Provider and shall comply with such procedures. 6.1.10 not use the
Services for any immoral or illegal purposes
6.1.11not to act or omit to act in a way which will or may injure or
damage any persons (whether or not employees agents or
representatives of OpenAir or the Network Provider) or any property
involved in the provision of the Services or in any way cause the
quality of the Services to be impaired
7. WARRANTIES AND LIABILITY
7.1 The Company acknowledges that the Goods are manufactured by independent
third parties ("the Manufacturers") and the Company shall only be entitled
to the benefit of any warranty in respect of the Goods as is given by the
Manufacturers to OpenAir and which OpenAir is entitled to pass on to the
Company
7.2 OpenAir warrants that the Services will be provided using reasonable care
and skill but does not warrant that they will be available without
interruption or free from error
7.3 Subject as expressly provided in this Agreement, all warranties,
conditions, or other terms implied by statute or common law are excluded
to the fullest extent permitted by law
7.4 Except in respect of death or personal injury caused by the negligence of
OpenAir, its employees or agents, Open air's liability in contract, tort
or otherwise including any liability for negligence howsoever arising out
of or in connection with the performance of Openair's obligations under
this Agreement shall be limited to an amount not exceeding the recommended
retail price of all Goods and Services supplied to the Company in the
preceding three month period
7.5 The Company also agrees to indemnify OpenAir against all liability arising
out of any actions, proceedings and claims made by any Customer against
the Network Provider and/or OpenAir and all damage loss or expense in
connection therewith except liability for death or personal injury
resulting from the negligence of the Network Provider in the performance
of its obligation
7.6 For the avoidance of doubt, OpenAir shall not be liable for the acts,
omissions. Defaults, and negligence of the Company, its employees and
agents, and the Company hereby agrees to indemnify OpenAir against any
actions, proceedings, costs, claims, expenses and demands which may be
against OpenAir fully in respect thereof
8. FORCE MAJEURE
8.1 If either party is affected by an event of Force Majeure it shall promptly
notify the other party of the nature and extent of the circumstances in
question
8.2 Notwithstanding any other provision of this Agreement, neither party shall
be deemed to be in breach of this Agreement, or otherwise be liable to the
other, for any delay in performance of the non-performance of any of its
obligations under this Agreement, to the extent that the delay or
non-performance is due to any Force Majeure which it has notified to the
other party, and the time for performance of that obligation shall be
extended accordingly
8.3 If the Force Majeure prevails for a continuous period in excess of three
months, either party may by notice in writing to the other immediately
terminate this Agreement
9. DURATION AND TERMINATION
9.1 Subject to clauses 9.2 and 9.3 below, this Agreement shall come into force
on the date hereof and shall continue in force for a period of one year
and shall continue thereafter unless or until terminated by either party
giving to the other party at any time not less than twelve months' written
notice to expire on or at any time after the end of that period. For the
purposes of clarity OpenAir shall be entitled to decline any additional
business proposed by the Company after such notice of termination has been
given.
9.2 OpenAir shall be entitled forthwith to terminate this Agreement by written
notice to the Company if:
9.2.1 the Company commits any continuing or material breach of its
obligations under this Agreement and in the case of such a
breach which is capable of remedy fails to remedy the same within
thirty days of the receipt of a written notice requiring it to be
remedied; or
9.2.2 The Company breaches the rules of the Mobile Communications Crime
Prevention Scheme; or
9.2.3 an emcumbrancer takes possession or a receiver is appointed over any
of the property or assets of the Company; or
9.2.4 the Company makes any voluntary arrangement with its creditors or
becomes subject to an Administration Order; or
9.2.5 the Company goes into liquidation (except for the purposes of an
amalgamation, reconstruction, or other re-organisation and in such
manner that the Company resulting from the re-organisation
effectively agrees to be bound by or to assume the obligations
imposed on the Company under this Agreement); or
9.2.6 the Company ceases or threatens to cease, to carry on business
9.3 This Agreement shall terminate forthwith upon the termination or
expiry of the Network Agreement
9.4 For the purposes of clause 9.2.1 a breach shall be considered
capable of remedy if the Company can comply with the provision in
question in all respects other than as to the time of performance
(provided that time of performance is not of the essence)
9.5 Any failure by OpenAir to enforce at any time or for any period any
provision of this Agreement shall not be considered as a waiver of
such provision or of the right at any time subsequently to enforce
all terms and conditions of this Agreement
9.6 The right to terminate this Agreement given by this clause shall not
prejudice any other right or remedy of OpenAir in respect of the
breach concerned (if any) or any other breach
9.7 Upon the termination of this Agreement for any reason, subject as
otherwise provided in this Agreement and to any other rights or
obligations which have accrued prior to termination, neither party
shall have any further obligation to the other under this Agreement
10. CONFIDENTIALITY
10.1 Subject to clause 10.3 each party undertakes to the other that it
shall at all times during the continuance of this Agreement and
after this termination:
10.1.1Use its best endeavours to keep secret and confidential all
confidential information disclosed to it by the other party
(whether written or oral) in connection with this Agreement
and the Goods and Services and accordingly not to disclose any
such confidential information to any third party; and
10.1.2Not to use any such confidential information for any purpose
other than the performance of its obligations under this
Agreement
10.1.3ensure that its employees, agents and sub-contractors are made
aware of its obligations under this clause 10.1 and agree to be
bound by its provisions
10.1.3As and when so requested by the other party, return to it
and/or destroy and/or (in the case of confidential information
held in electronic form) expunge or cause to be expunged all
confidential information disclosed by such other party to the
party receiving such request and shall certify to such other
party, by signature of two directors of the certifying party,
that it has complied in all respects with the requirements of
this paragraph 10.1.4.
10.2 The undertakings in clause 10.1 shall not apply to any information,
which is already in the possession of the receiving party, or
already in the public domain other than as a result of a breach of
this clause
10.3 Notwithstanding clause 10.1 OpenAir shall be permitted to provide to the
Network Provider, upon reasonable demand by the Network Provider, the name
address and subscriber number together with all other relevant information
relating to the directory entry for each subscriber
10.4 It is acknowledged by OpenAir that the identity of each Customer is
confidential to the Company and will only be or has been disclosed to
Openair to enable it to provide the Services and perform its other
obligations hereunder. Openair accordingly acknowledges to the Company
that the list of Customers and every part thereof, as well as every other
reference to or other item
of information about Customers in Openair's possession or under its
control or to which it has access which identifies Customers' name or
other personal details, comprise confidential information of the Company.
All of the provisions of clause 10.1 will apply to such list and every
such item of information.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The Company shall comply with all guidelines and directions issued
from time to time by the Network Provider in connection with the
trademark and promotion and protection of the same
11.2 The Company shall not use or apply to register any name or trademark
similar to the name or trade xxxx of the Network Provider or of
OpenAir except promotion of the Services provided by the Network
Provider
11.3 All intellectual property rights in or relating to the systems and
services provided by the Network Provider shall be retained by the
Network Provider and all other intellectual property rights in or
relating to the Services shall be retained by OpenAir and the
Company shall acquire no such rights by reason of providing the
Services to Customers
12. GENERAL
12.1 The parties to this Agreement shall perform their obligations as
independent contractors and nothing in this Agreement shall create,
or be deemed to create a partnership, joint venture or agency
between the parties.
12.2 Neither party shall be entitled to assign or novate its rights and
obligations under this Agreement to a third party without the other
party's prior written consent (such consent not to be unreasonably
withheld) and in the event that the Company assigns or transfers all
its Customers to a Network Provider other than applied through
OpenAir then OpenAir shall have the right to terminate this
Agreement forthwith by notice to the Company
12.3 This Agreement contains the entire Agreement between the parties
with respect to its subject matter, supersedes all previous
Agreements and understanding between the parties, and may not be
modified except by an instrument in writing signed by the duly
authorized representatives of the parties.
12.4 If any provision of this Agreement is declared by any Court or any
other competent authority to be void, voidable , illegal or
otherwise unenforceable in whole or part (or if indications to the
effect are received by OpenAir from any competent authority), the
other provisions of this Agreement and the remainder of the affected
provisions of this Agreement and the remainder of the affected
provision shall continue to be valid
12.5 The Company confirms that it is registered under the Data Protection
Act 1998 and that is has in place an implemented data protection act
policy. The Company will indemnify OpenAir against any loss or
claim, including costs and/or damages and/or fines, suffered by
OpenAir resulting from a breach by the Company or any of its
servants or agents of that Act or the orders or regulations made
under or in pursuance of it
12.6 The Contracts (Rights of Third Parties) Act 1999 is excluded from
this Agreement
13. NOTICES
13.1 Any notice or other communication required or authorized by this
Agreement may be given by hand or sent by first class pre-paid
recorded delivery or registered post to the address specified for
the relevant party in this Agreement or to such other address as may
be notified by either party to the other or by facsimile
transmission to the other party
13.2 Any notice given by hand shall be deemed to be served on delivery,
and any notice sent by post pursuant to clause 12.1 shall be deemed
to be serviced 48 hours after posting. Any notice sent by facsimile
transmission shall be deemed to be served on the date of
transmission provided that there is proof of the transmission
13.3 The address of OpenAir for service of notices unless otherwise
advised shall be:
OpenAir
Xxxx Xxxxx
Xxxxxx Xxxx
Xxxxx
XX0 0XX
14. GOVERNING LAW AND JURISICTION
14.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of England, and the parties hereby submit to the
non-exclusive jurisdiction of the English Courts
SIGNED by ) illegible
For and on behalf of ) illegible
EASYAIR LIMITED ) illegible
SIGNED by )
For and on behalf of )illegible
SWIFTNET LIMITED )Xxxxx Xxxxxx 2-4-03
