EXHIBIT (E)(3)
AGREEMENT FOR SERVICES
DATED JANUARY 1, 1992
THIS AGREEMENT is made as of this 1/st/ day of January, 1992, by and
between Compania Anonima Nacional Telefonos de Venezuela ("CANTV"), located at
Edificio Administrativo, Av. Libertador, Caracas, Venezuela, and GTE Service
Corporation ("Vendor"), located at 600 Hidden Ridge, Post Office Box 152092,
Xxxxxx, Xxxxx 00000, X.X.X.
In consideration of the mutual promises expressed in this Agreement,
the parties agree as follows:
ARTICLE 1
SERVICES TO BE PROVIDED
1.1 The Services to be provided by Vendor to CANTV are technical
assistance services described in Schedule A and technological services described
in Schedule B (collectively the "Proposal") attached hereto and by this
reference specifically made a part hereof.
ARTICLE 2
COMPENSATION AND EXPENSES FOR SERVICES
2.1 CANTV agrees to pay Vendor for technical assistance performed and
technological services provided under this Agreement, in accordance with the
schedule of charges set forth in Schedule C attached hereto.
2.2 In addition to the compensation specified above, CANTV agrees to
reimburse Vendor for expenses incurred for travel, lodging, and subsistence of
Vendor personnel while they are away from Vendor offices performing work called
for under this Agreement.
2.3 Compensation pursuant to this Article shall include all
Venezuelan taxes thereon.
2.4 Vendor shall invoice CANTV on a monthly basis for the
compensation and expenses. CANTV shall have the right to review itemized details
as to all expenses. Payment shall be due in thirty (30) days and shall be
subject to a finance charge of one percent (1%) per month on invoices
outstanding beyond thirty (30) days.
ARTICLE 3
CONTRACT TERM AND TERMINATION
3.1 This Agreement shall become effective upon its execution by both
parties and, except as otherwise provided in this Agreement, shall continue in
full force and effect thereafter for twelve months after the date hereof. If
notice has not been given to terminate this Agreement as provided in paragraph
3.2, the term shall automatically be extended for another twelve months.
3.2 This Agreement may be terminated by either party upon thirty
days' notice to the other party. In the event of termination, CANTV shall be
liable for all compensation and expenses owed to Vendor for services provided
prior to the date of termination, but not thereafter.
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ARTICLE 4
CONFIDENTIALITY
4.1 To effectuate this Agreement, it may be necessary for Vendor to
disclose to CANTV or for CANTV to disclose to Vendor, proprietary or
confidential customer, technical and business information in written, graphic,
oral or other tangible or intangible forms ("Information"). In order to protect
such Information from improper disclosure, both parties agree:
(a) That all such Information shall be and shall remain
confidential;
(b) To limit access to such Information to authorized
employees who have a need to know the Information in order for Vendor to perform
the services set out in this Agreement;
(c) To keep such Information confidential and to use the
same level of care to prevent disclosure or unauthorized use of the received
Information as the disclosing party exercises in protecting its Information of a
similar nature;
(d) For a period of one (1) year following any disclosure
by either party, not to copy or publish or disclose such Information to others
or authorize anyone else to copy or publish or disclose such Information to
others without the prior written approval of the disclosing party;
(e) To use such Information only for purposes of fulfilling
work or services performed hereunder and for other purposes only upon such terms
as may be agreed upon between the parties in writing.
4.2 The above-stated obligations shall not apply to any Information
which was legally in the possession of the other party prior to receipt, or was
received in good faith from a third party not subject to a confidential
obligation, or now is or later becomes publicly known through no breach of
confidential obligation by the receiving party, or was developed by the
receiving party without the developing person(s) having access to any of the
Information received in confidence from the other party.
4.3 The obligation of confidentiality and non-use with respect to
Information disclosed by either party to the other shall survive any termination
of this Agreement for a period of two (2) years from the date of the initial
disclosure of the Information.
ARTICLE 5
OWNERSHIP OF WORK PRODUCT
5.1 All inventions, improvements, discoveries, computer software
(including firmware), and other forms of technology or intellectual property
made or conceived or actually or constructively reduced to practice during the
term of this Agreement, result from any work which Vendor may do pursuant to
this Agreement, shall be and remain the property of both CANTV and Vendor, and
both shall have the rights to use such for any purpose.
5.2 All notes, designs, models, prototypes, drawings, data storage
media, listings, deliverables, technical data, and other work product developed
in connection with or pursuant to the terms and conditions of this Agreement,
including any reports to be prepared by Vendor for CANTV under this Agreement,
shall become and remain the property of both CANTV and Vendor, and both shall
have the rights to use such for any purpose without any additional compensation.
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ARTICLE 6
CANTV RIGHT TO AUDIT
6.1 CANTV shall have the right to examine Vendor's books and records
for the purpose of auditing all amounts billed to CANTV pursuant to this
Agreement.
6.2 CANTV may request to examine Vendor's books and records pertinent
to the provision of services at any time, and the parties shall thereupon agree
to a date and location for the review. Vendor shall make available to CANTV its
books and records reflecting all services provided to CANTV.
6.3 Each party shall bear its own expenses in connection with an
audit by CANTV of Vendor's records.
6.4 Materials reviewed by CANTV in the course of the audit shall be
deemed confidential information.
ARTICLE 7
MISCELLANEOUS
7.1 Amendments, Modifications and Supplements. Amendments,
modifications and supplements to this Agreement are allowed and will be binding
on the parties after the effective date, provided such amendments, modifications
and supplements (1) are in writing, signed by an authorized representative of
both parties, and (2) by reference incorporate this Agreement and identify the
specific sections or clauses contained herein which are amended, modified or
supplemented or indicate that the material is new. The term, "this Agreement"
shall be deemed to include any future amendments, modifications and supplements.
7.2 Assignment. Neither party may assign or delegate its obligations
under this Agreement without the prior written consent of the other.
7.3 Attorneys' Fees. In the event any party to this Agreement shall
be required to initiate legal proceedings (i) to interpret or to enforce
performance of any term or condition of this Agreement; (ii) to enjoin any
action prohibited hereunder; or (iii) to gain any other form of relief
whatsoever, the prevailing party shall be entitled to recover such sums, in
addition to any other damages or compensation received, as will reimburse the
prevailing party for reasonable attorneys' fees and court costs incurred on
account thereof notwithstanding the nature of the claim or cause of action
asserted by the prevailing party.
7.4 Compliance with Laws and Regulations. The parties shall comply
with all federal, state and local laws and regulations applicable to their
performance as described in this Agreement.
7.5 Consent. Where consent, approval or mutual agreement is required
of a party, it shall not be unreasonably withheld or delayed.
7.6 Default. If either party refuses or fails in any material respect
properly to perform its obligations under this Agreement, or violates any of the
material terms or conditions of this Agreement, such refusal, failure or
violation shall constitute a default. In such event, the non-defaulting party
may so notify the other party in writing of the default and allow that party a
period of thirty (30) calendar days to cure such default. If the defaulting
party does not cure such default within said thirty (30) calendar days, the
non-defaulting party shall have the right to terminate this Agreement upon
written notice to the other party.
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7.7 Entire Agreement. Except for written amendments, supplements or
modifications made after the execution of this Agreement, this Agreement
represents the entire agreement between the parties hereto with respect to the
subject matter of this Agreement and supersedes all prior negotiations,
representations and agreements, either oral or written.
7.8 Force Majeure. In the event performance of this Agreement, or any
obligation hereunder, is prevented, restricted or interfered with by reason of
acts of God, wars, revolution, civil commotion, acts of public enemy, embargo,
acts of the Government in its sovereign capacity, labor difficulties, including
without limitation, strikes, slowdowns, picketing, or boycotts, unavailability
of equipment from Vendor, changes requested by Customer, or any other
circumstances beyond the reasonable control and without the fault or negligence
of the party affected, the party affected, upon giving prompt notice to the
other party, shall be excused from such performance on a day-to-day basis to the
extent of such prevention, restriction, or interference (and the other party
shall likewise be excused from performance of its obligations on a day-to-day
basis until the delay, restriction or interference has ceased); provided,
however, that the party so affected shall use its best reasonable efforts to
avoid or remove such causes of nonperformance and both parties shall proceed
whenever such causes are removed or cease.
7.9 Governing Law. This Agreement shall be governed by and
interpreted or construed in accordance with the laws of Venezuela and shall be
subject to the exclusive jurisdiction of the courts therein.
7.10 Headings. The headings in this Agreement are inserted for
convenience and identification only and are in no way intended to define or
limit the scope, extent or intent of this Agreement or any of the provisions
hereof.
7.11 Independent Contractor Relationship. The persons provided by
each party to the other party on a part-time basis within each year shall be
solely that party's employees and shall be under the sole and exclusive
direction and control of that party. They shall not be considered employees of
the other party for any purpose. Each party shall remain an independent
contractor with respect to the other and shall be responsible for compliance
with all laws, rules and regulations involving, but not limited to, employment
of labor, hours of labor, health and safety, working conditions and payment of
wages. Each party shall also be responsible for payment of taxes, including
federal, state and municipal taxes, chargeable or assessed with respect to its
employees, such as, Social Security, unemployment, Workers' Compensation,
disability insurance, and federal and state withholding. Each party shall
indemnify the other for any loss, damage, liability, claim, demand or penalty
that may be sustained by reason of its failure to comply with this provision.
Persons provided to the party for a period in excess of six (6) months may
become employees of the other party.
7.12 Insolvency. Either party may terminate this Agreement by notice,
in writing, if the other party admits insolvency, makes an assignment for the
benefit of creditors, or has a trustee or receiver appointed over all or any
substantial part of its assets.
7.13 Limitation of Liability. It is expressly understood that neither
party makes any warranty to the other with respect to the performance or fitness
for any purpose of the products or services contemplated by this Agreement. Each
party's liability to the other for any loss, cost, claim, injury, liability or
expense, including reasonable attorney's fees, relating to or arising out of any
negligent act or omission in its performance of obligations arising out of this
Agreement, shall be limited to the amount of direct damage actually incurred.
Absent gross negligence or knowing and willful misconduct which causes a loss,
neither party shall be liable to the other for any indirect, special or
consequential damage of any kind whatsoever.
7.14 Notices. Any notice to any of the parties required or permitted
under this Agreement shall be deemed to have been received on the date of
service if served personally on the party to whom notice is to be given, on the
date receipt is acknowledged in writing by the recipient if delivered by regular
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mail, or on the date stated on the receipt if delivered by certified or
registered mail or by a courier service which obtains a written receipt. Any
notice shall be delivered using one of the alternatives mentioned in this
section.
For the purposes of this Agreement, notices and communications to the
parties hereunder shall be directed to the addresses indicated below and such
addresses shall be deemed to be the most recent address of the addressee and
shall remain so until written notice of a change of address is provided to the
other party by the party whose address has changed:
If to CANTV: Compania Anonima Nacional Telefonos de Venezuela
Attention: Xxxxx X. Xxxxxx, President
Edificio Administrativo
Av. Libertador
Caracas, Venezuela Fax: 000-000-0000
If to Vendor: GTE Telephone Operations
Attention: Xxxxxx X. Xxxxx, Xx. Vice President
000 Xxxxxx Xxxxx
Post Office Box 152092
Xxxxxx, Xxxxx 00000 XXX Fax: 000-000-0000
7.15 Severability. If any term, provision, covenant, or condition of
this Agreement is held by a court or regulatory body of competent jurisdiction
to be invalid, void, or unenforceable, the rest of the Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
7.16 Successors. This Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the parties.
7.17 Waiver. Any waiver of the terms and conditions of this Agreement
may be made by either party if reduced to writing and signed by both parties. No
waiver of the terms of this Agreement or failure by either party to this
Agreement to exercise any option, right or privilege on any occasion or through
the course of dealing, shall be construed to be a waiver of any subsequent
breach or of any option, right or privilege on any subsequent occasion.
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AMENDMENT NO. 1 TO
AGREEMENT FOR SERVICES
DATED JANUARY 1, 1992
This first Amendment to the Agreement for Services dated January 1,
1992, by and between Compania Anonima Nacional Telefonos de Venezuela ("CANTV")
and GTE Service Corporation ("Vendor") is agreed to by CANTV and Vendor, and
provides as follows:
1. Schedule C, Technical Assistance, is hereby amended to insert, following the
table of Billing Rates for technical assistance, the following:
"Technical assistance provided to CANTV by Vendor through
personnel assigned to work in Venezuela for more than six
months may be billed by Vendor to CANTV in an amount equal
to the cost to the GTE company providing such personnel to
CANTV, in lieu of the above hourly rates."
2. This Amendment shall be effective as of the date of the Agreement being
amended hereby.
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AMENDMENT
Pursuant to Article 7.1 Amendments, Modifications and Supplements of
the Agreement for Services dated January 1, 1992 (the "Agreement"), GTE Service
Corporation (Vendor) and Compania Anonima Nacional Telefonos de Venezuela
(CANTV) hereby amend said Agreement effective October 1, 1994, by adding the
following words at the end of paragraph 2.1:
No more than once annually, Vendor may revise Schedule C to
reflect changes in Vendor's fully allocated costs by
following the procedures set forth in Paragraph 7.14
Notices. The revised Schedule C shall be effective upon
receipt by CANTV and shall be substituted for the prior
Schedule C and made a part of this Agreement. In no event
shall Vendor's charges exceed the lowest price charged by
Vendor to any third party for the same or similar services.
The amendment shall apply to paragraph 2.1 of Schedule C only and the remaining
provisions of this Agreement shall remain in full force and effect.
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AMENDMENT NO. 3
AGREEMENT FOR SERVICES
DATED JANUARY 1, 1992
This AMENDMENT is made as of this 1st day of August, 1996, by and
between COMPANIA ANONIMA NACIONAL TELEFONOS DE VENEZUELA ("CANTV"), located at
Edificio Administrativo, Avenida Libertador, Caracas, Venezuela, and GTE Service
Corporation ("VENDOR"), located at 600 Hidden Ridge, Post Office Box 152092,
Xxxxxx, Xxxxx 00000, XXX.
WHEREAS, CANTV and the VENDOR executed the Agreement for Services as
of January 1, 1992.
WHEREAS, CANTV and the VENDOR have executed and delivered Amendment
No. 1 to the Agreement dated as of January 1, 1992.
WHEREAS, CANTV and the VENDOR have executed and delivered Amendment
No. 2 to the Agreement dated as of October 1, 1994.
WHEREAS, CANTV has failed to make all payments due to the VENDOR in
accordance with the terms of the Agreement.
WHEREAS, CANTV and the VENDOR desire to amend such Agreement.
NOW, therefore, in consideration of the mutual promises expressed in
this Agreement and for other consideration, the receipt and sufficiency of which
is hereby acknowledged, the VENDOR and CANTV agree that pursuant to Article 7.1
Amendments, Modifications and Supplements of the Agreement for Services dated
January 1, 1992 (the "Agreement"), GTE Service Corporation and COMPANIA ANONIMA
NACIONAL TELEFONOS DE VENEZUELA hereby amend said Agreement as follows:
1. Section 2.4 of the Agreement is hereby amended by adding at the end thereof
the following paragraph:
"Any and all amounts due to VENDOR under the Agreement on
the date of Amendment No. 3 to this Agreement which have
not been paid shall be payable 30 days after the date
hereof."
2. Section 3.1 of the Agreement is hereby amended by substituting for the second
paragraph thereof the following paragraph:
"If notice has not been given to terminate this Agreement
as provided in Section 3.2 prior to the end of the initial
12-month term, the term shall automatically be extended for
an additional 12-month term and if notice has not been
given to terminate the Agreement as provided in Section 3.2
prior to the end of each successive term, the term shall
automatically be extended for an additional 12-month term."
The Amendment shall apply to Sections 2.4 and 3.1 of the Agreement and remaining
provisions of said Agreement shall remain in full force and effect, and the
Agreement is hereby ratified by the VENDOR and CANTV.
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AMENDMENT NO. 4 TO
AGREEMENT FOR SERVICES
DATED JANUARY 1, 0000
XXXXXX XXXXXXXXX (this "Amendment") is made as of November __, 2000
by and between COMPANIA ANONIMA NACIONAL TELEFONOS DE VENEZUELA (CANTV)
("CANTV"), located at Edificio Administrativo, Av. Libertador, Caracas,
Venezuela and GTE Service Corporation located at 600 Hidden Ridge, Post Office
Box 152092, Xxxxxx, Xxxxx 00000, XXX (the "Vendor").
WITNESSETH
WHEREAS, CANTV and the Vendor have entered into the Agreement for
Services dated as of January 1, 1992 (as amended by Amendment No. 1 to Agreement
for Services dated as of January 1, 1992, Amendment No. 2 to Agreement for
Services dated as of October 1, 1994 and Amendment No. 3 to Agreement for
Services dated as of August 1, 1996, the "Agreement"), in respect of certain
technical assistance and technological services (as further described in the
Agreement) being rendered to CANTV by the Vendor (the "Services");
WHEREAS, in addition to the Services provided by the Vendor to CANTV
pursuant to the terms hereof, certain additional services and products have been
provided by the Vendor (and certain affiliates of the Vendor) to CANTV pursuant
to the terms of Section 4.1.1 of the Stock Purchase and Sale Agreement (the
"Stock Purchase Agreement") dated among Fondo de Inversiones de Venezuela,
Venworld Telecom, C.A. ("Venworld") and GTE Corporation ("GTE") requiring
Venworld, subject to certain exceptions, to use its best efforts (including,
without limitation, making available to CANTV, and applying in the management
and operation of CANTV, the managerial, technical and marketing expertise and
experience of GTE and the Consortium Participants (as defined in the Stock
Purchase Agreement) and their respective affiliates) to cause CANTV to comply
completely with all the terms and conditions of the Concession Agreement (as
defined in the Stock Purchase Agreement);
WHEREAS, the obligation of the Vendor to provide CANTV such
additional services pursuant to the terms of Section 4.1.1 of the Stock Purchase
Agreement terminates on January 1, 2001; and
WHEREAS, CANTV desires to continue to obtain from the Vendor, and the
Vendor desires to continue to provide to CANTV certain of these additional
services on the terms and conditions set forth in the Agreement (as amended,
modified and supplemented by this Amendment) until such time as CANTV and the
Vendor may enter into a more definitive agreement.
NOW, THEREFORE, in consideration of the mutual promises expressed in
this Amendment and for other consideration, the receipt and sufficiency of which
is hereby acknowledged, CANTV and the Vendor wish to amend and modify certain of
the terms of the Agreement pursuant to Article 7.1 of the Agreement and
accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Terms used but not defined herein
shall have the respective meanings ascribed to such terms in the
Agreement.
Section 2. Amendments. Article 1 of the Agreement is hereby
amended by inserting a new Section 1.2, following Section 1.1, to
read as follows:
Section 1.2. In addition to the technical assistance and
the technological services provided by the Vendor to CANTV
under Section 1.1 hereof, the Vendor shall provide to CANTV
such additional services and products (including providing
CANTV with certain rights and access to, and use of,
technology owned by and/or licensed to the Vendor and
trademarks and service marks now or hereafter owned by the
Vendor in Venezuela) at such negotiated rates as the Vendor
and CANTV may agree from time to time. Invoices for
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requested services and products shall reflect in reasonable
detail, the nature and quantity of the requested services
and products rendered during the immediately preceding
calendar quarter and the fee will be payable by CANTV
within thirty (30) days of the invoice date.
Section 3. Documents Otherwise Unchanged. Except as herein
provided, the Agreement shall remain unchanged and in full force and
effect, and each reference to the Agreement shall be a reference to
the Agreement as amended hereby and as the same may be further
amended, supplemented and otherwise modified and in effect from time
to time.
Section 4. Counterparts. This Amendment may be executed in
any number of counterparts, each of which shall be identical and all
of which, when taken together, shall constitute one and the same
instrument, and any of the parties hereto may execute this Amendment
by signing any such counterpart.
Section 5. Binding Effect. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 6. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of Venezuela and shall
be subject to the exclusive jurisdiction of the courts therein.
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