Exhibit 10.6
Portions of this Exhibit were omitted and have been filed
separately with the Secretary of the Commission pursuant to
the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act.
AGREEMENT FOR PROMOTION OF TRAFFIC IN REGION I OF THE GENERAL
PLAN OF GRANTING (GPG) AND OTHER COVENANTS
AOL DO BRASIL LTDA, a Brazilian limited liability company with its main place of
business at Xx. Xxxxxxxx xx Xxx Xxxxxxxxx, 0000 - American Business Park - Bloco
B - 2.(degree) floor, enrolled in the National Registry for Legal Entities
(CNPJ/MF) under n(0) 03.032.579 /0001-62, in this act represented pursuant to
its Articles of Association, hereinafter individually called "AOL";
and
TNL.Acesso S.A. a corporation with its main place of business at Xxxxxxx Xxxx,
0000 - xxxx, Xxxx de Barueri - SP, enrolled in the National Registry for Legal
Entities (CNPJ/MF) under n.(0) 00.000.000/0001-58, in this act represented
pursuant to its Articles of Association, hereinafter individually called "TAC";
TAC and AOL are also individually called as a "Party" and jointly as "Parties".
When used in this Agreement, the terms below shall have the following meanings:
a) "Dialed Access to the Internet" means the User's access to the
Internet through telephone calls by means of an infrastructure of
Connection to the Internet.
b) "Agreement" means the present Agreement of Promotion of Traffic in
Region I of the GPG [General Plan of Granting] and Other Covenants.
c) "ANATEL" means National Agency of Telecommunications.
d) "Infrastructure of Connection to the Internet" or "Infrastructure"
means each and every system made available and/or that may become
available by the Operator, being the ISDN accesses excluded, so as to
provide connection and access to the Internet through the Commuted
Fixed Telephone Service in the modality Local, including the IP Dial
Ports, IP Ports and Access circuits, as it may eventually be specified
in hiring of its own, which shall include, among others:
(i) the necessary telecommunications Infrastructure to provide access
of AOL's users, in narrow band (i.e. through dialed access, also
called "dial-up"), through the installation and continued availability
of the IP Dial Port in the modality exclusive for AOL's specific
applications.
(ii) the interconnection dedicated access channel(s) of AOL Network's
users or not, to the Internet.
e) "Internet" means a world net which gathers, connects and interconnects
several computer nets, making use of TCP/IP protocol, controlled in
Brazil by the Management Committee and abroad by ICANN.
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f) "Confidential Information" means all information and documents of any
kind, necessary to allow the attainment of the object of this
Agreement, which are delivered to one of the Parties by the other, or
by its advisors, auditors, accountants, attorneys, representatives,
managers or employees, who related to the Parties's business or to
the businesses of its clients, suppliers and associates, including,
but not limiting to management data, financial data and market
strategies.
g) "GPG" means the General Plan of Granting approved by Decree n(0)2.534
of April 2, 1998.
h) "Pulses" means the chargeable telephone pulses, generated by AOL's
users in the Operator's Network of the Commuted Fixed Access Service
and finished in the ports made available by the Operator.
i) "CFAS" means the Commuted Fixed Access Service.
j) "Users" means all AOL's users who, making use of the CFAS, connect to
the Internet, through the ports made available by the Operator for
Dial-up Access to the Internet.
k) "Taxes" means each and every tax, fees, compulsory loans and
contributions to PIS [Program of Social Integration], COFINS
[Contribution for Financing Social Security], among other taxes,
related to this Agreement and imposed by the applicable legislation.
l) "IP Dial Port" means the set of equipment (accesses and others) or the
necessary resources to receive telephone calls and to provide access
to the Internet through the CFAS, through Remote Access Servers (RAS)
which make interface between the CFAS network and the IP/Internet
network.
m) "IP Port" means the interface in the router connected to the IP
Network of any supplier for IP bi-directional traffic to the Internet,
which may eventually allow AOL's connection to the Internet.
n) "Operator(s)" means/mean the CFAS companies chosen by TAC and
expressly accepted by AOL, which will supply AOL with Infrastructure
of Connection to the Internet.
o) "CFAS Operator" means the CFAS Operator chosen by TAC and expressly
accepted by AOL, which will be the source for the calls of AOL's
users in Region I of the GPG.
p) "ISDN" means Internet Services Digital Network.
q) "ICANN" means Internet Corporation for Assigned Names and Numbers.
r) "Significant Modification of the Rules Referring to the Dialed Access
Traffic to the Internet" means any change in the present
interconnection procedure, which gives rise to the exclusion of the
dialed access traffic to the Internet of Class I interconnections, as
defined in the General Regulations of Interconnections, approved by
Resolution n(0)40 of July 23, 1998.
3
s) "IP Network" means the Operator's IP network, an integrant part of the
Internet network.
t) "Limit of Pulses" means [**] ([**]) pulses per 30 days, from the sign
to this Agreement until 90 days before; [**] ([**]) pulses per 30
days, from to 91st day until the 180th day to this Agreement; [**]
([**]) pulses per 30 days, from to 181st until 270th day to this
Agreement and [**] ([**]) pulses in periods from 30 days, remaining to
this Agreement.
u) "AOL's Network" means the servers' network which processes AOL
services and products, that of its Affiliates and of its suppliers of
content and applications and their respective equipment for data
communication.
v) "Affiliate" means, concerning one of the Parties, a partnership that
is controlled or is the controlling company or which is under a common
control with such Party.
w) CFAS Operating of Traffic Telephone Termination Means the operating of
CFAS choose from TAC and expressly accept to AOL, whom finished the
calls from AOL users, at Region I of the GPG.
Whenever demanded by the context, definitions contained in this Agreement shall
apply both in the singular and in the plural and vice-versa, and the masculine
gender shall include the feminine and vice-versa.
1. The Object
1.1.The object of the present Agreement is the promotion of telephone
traffic in Region I of the GPG, through the calls that have their source in
the terminals of the CFAS Operator and finish in the Infrastructure of
Connection to the Internet, made available by the Operator for dialed
access to the Internet on the part of the Users, in Region I of the GPG,
through payment by TAC to AOL of commission, as defined in this Agreement.
2. Interpretation of the Agreement
2.1. The headings and titles of these instruments serve only the
convenience of reference and will not limit or affect the meaning of the
provisions of this Agreement.
2.2. References to any document or other instruments include all its
modifications, replacements, consolidations and respective complements,
except if expressly otherwise set forth
2.3. Except if otherwise expressly determined in this instrument, reference
to Items or Exhibits apply to the Items and Exhibits of this Agreement.
3. Compensation
3.1. Subject to the terms and conditions of the present Agreement, as
compensation for the payment of commission for promotion of traffic in
Region I of the GPG, AOL commits to
4
hire, with exclusivity, for the period of time this Agreement is in force,
the Infrastructure of Connection to the Internet of the Operator(s) in
Region I of the GPG.
3.1.1. During a transition period, when the Infrastructure will be
implemented and which shall last for the term of three (03) months,
counted as of the execution of this Agreement, AOL will exert all the
necessary efforts for the migration to the Infrastructure of
Connection to the Internet of the Operator(s) in Region I of the GPG,
being forthwith agreed that during such transition period AOL will not
practice the exclusivity set forth in 3.1 above. The above period of
time will be extended in the localities where the delivery of Ports
does not occur due to responsibility attributable to the Operator(s)
in Region I of the GPG, related to the Ports which were not delivered.
3.1.2. It is herein agreed that AOL will be automatically freed from
the duty referred to in item 3.1. above in the localities that may
eventually provide access to the Internet to its Users and whereto the
Operator has expressly refused to offer the Infrastructure, as well as
in the localities where the Operator evidently does not comply with
the minimum quality standards and other necessary technical
conditions, pursuant to the terms of specific hiring.
3.1.2.1.The exemption set forth in item 3.1 above will not apply
to the exclusivity duty of the CFAS Operator. In this case, AOL
shall forward its telephone traffic, with exclusivity to the CFAS
Operator.
3.1.3. The exclusivity set forth in item 3.1 above, shall be extended
to the IP Ports, needed for the national traffic flow to the Internet
generated by the IP Dial Ports hired for Region I of the GPG,
independently of the GPG Region where the installation of the said
Ports will take place in the following way: AOL will filter IP route
advertisements arisen from the operators that do not allow IP traffic
exchange through non-paid peering with the Operator(s) in Region I of
the GPG.
4. General Conditions
4.1. From the execution date of the present Agreement until now (a) six
(06) months after the entry date in force for the new rules, which contain
Significant Modification in the Rules Related to Dialed Access Traffic, or
(b) the date of December 31, 2005, what happens first, TAC shall monthly
pay, as commission, to AOL the amounts described hereinbelow:
4.1.1. From the First Pulse until the Limit of Pulses:
4.1.1.1. The amount of R$[**] ([**] reais) per Pulse, for the
period of July 1, 2003 until September 30, 2003.
4.1.1.2. The amount of R$[**] ([**] reais) above comprises two
portions, being one in the amount of R$[**] ([**] reais) called
"Basic Portion" and the other in the amount of R$[**] ([**]
reais) called "Extended Portion".
4.1.1.3. The amount of R$[**] ([**] reais) per Pulse, for the
period of the 91st day until the 180th after the date of this
Agreement.
5
4.1.1.4. The amount of R$[**] ([**] reais) above comprises
portions, being one in the amount of R$[**] ([**] reais) called
"Basic Portion" and the other in the amount of R$[**] ([**]
reais), called "Extended Portion".
4.1.1.5. The amount of R$[**] ([**] reais) per Pulse, for the
period of the 180th day until the 270th day after the date of
this Agreement.
4.1.1.6. The amount of R$[**] ([**] reais) above comprises
portions, being one in the amount of R$[**] ([**] reais) called
"Basic Portion" and the other in the amount of R$[**] ([**]
reais), called "Extended Portion".
4.1.1.7. The amount of R$[**] ([**] reais) per Pulse, for the
period from the 271st day after the date of this Agreement until
December 31, 2005.
4.1.1.8. The amount of R$[**] ([**] reais) above comprises
portions, being one in the amount of R$[**] ([**] reais) called
"Basic Portion" and the other in the amount of R$[**] ([**]
reais), called "Extended Portion".
4.1.2. From the Limit of Pulses plus 1 (one) on:
4.1.2.1. The amount of R$[**] ([**] reais) per Pulse, comprised
exclusively by the "Extended Portion" for the period from 90 days
after the date of this Agreement.
4.1.2.2. The amount of R$[**] ([**] reais) per Pulse, comprised
exclusively by the "Extended Portion" for the period from the
91st day until the 180th day after the date of this Agreement.
4.1.2.3. The amount of R$[**] ([**] reais) per Pulse, comprised
exclusively by the "Extended Portion" for the period from the
181st day until the 270th day after the date of this Agreement.
4.1.2.4. The amount of R$[**] ([**] reais) per Pulse, comprised
exclusively by the "Extended Portion" from the 271st day after
the date of this Agreement until December 31, 2005.
4.1.3. The Limit of Pulses should be re-adjust in a period for three
and three months by the Parties, to adjust, in a common agree, the
higher or the minor, in function for the amplification or reduction,
of the Infrastructure hiring by the Operator.
4.2. The payment amounts per Pulse shall be yearly re-adjusted as of the
date of this Agreement execution, by applying the variation for the period
of the General Index of Prices - Internal Availability (IGP-DI), verified
by the Xxxxxxx Xxxxxx Foundation, with no loss of the application of a
lower variation, in accordance with the negotiation between the Parties. In
case such index is extinguished, the official index that replaces it shall
be applied. In case the legislation eventually allows re-adjustments in
different yearly periods, the least periodicity for adjustment will be
automatically applied to the aforementioned amounts, through previous
written notice by TAC or AOL.
6
4.3. TAC shall furnish AOL, until the tenth day of the second subsequent
month when the Pulses were produced, with a monthly report containing the
total description of the produced Pulses, report which can be audited by
AOL, at its own exclusive discretion.
4.3.1. TAC states and guarantees that it has the right to audit the
verification of the number of Pulses with the Operator of the Commuted
Fixed Access Service Operator (CFAS).
4.3.2. In case there is discrepancy higher than [**]% ([**] per cent)
amongst the Pulses stated in the monthly report delivered by TAC and
the well-grounded verification performed by AOL, AOL can audit the
verification process used, with no loss of AOL's possibility for
issuing the respective collection document.
4.3.3. For the purposes of the auditing set forth in the above item,
AOL shall appoint independent auditors, selected among the five major
auditing firms in the market (the "big five") to perform such
auditing.
4.3.4. TAC shall, in up to thirty (30) days, counted as of the
auditors appointment by AOL, allow the outset of the auditing process
with the CFAS Operator and endeavor for such necessary information to
be promptly provided.
4.3.5. Eventual discrepancy verified by the auditing shall be paid or
refunded by the benefited Party to the damaged Party within a (30)
thirty-day term counted as of the request for such purpose.
4.4. In case ANATEL or the CFAS's Operator set forth alternative payment
plans for the Dialed Access Traffic to the Internet, not taking into
consideration the pulses arisen from the traffic ended in the
Infrastructure of Connection to the Internet, TAC shall commit to pay
monthly to AOL, exclusively in the period of time set forth in the above
item 4.1, the equivalent to [**] ([**]) monthly Pulses per AOL User who
chooses the alternative plan, being such pulses added to the pulses
effectively measured, as described in items 4.1. above, complying with the
Limit of Pulses.
4.5. By the end of the term set forth in item 4.1.above, TAC and AOL will
not owe any amount related to the commission for traffic promotion. All the
other duties hired by the Parties shall remain valid and efficient
throughout the validity of the present Agreement, its Addendums and
respective Exhibits, particularly the exclusivity regime for hiring the
Operator's Infrastructure of Connection to the Internet.
4.6. The portions owed by TAC to AOL, pursuant to items 4.1.above, shall be
monthly paid until the twenty-fifth day of the second subsequent month when
the Pulses were produced in the CFAS Operator of Region I of the GPG, by
AOL's Users. The payment shall be effected through a collection instrument
to be delivered to TAC at least ten (10) days before the maturity date.
There being no banking work on the established date, the payment shall be
effected in the first subsequent weekday. The deposit slips in favor of AOL
will be considered as valid documents for the evidencing of the receipt of
the due payments by TAC.
7
4.6.1. In the assumption of delay in the delivery of the monthly
report to AOL, within the term set forth in item 4.2 above, AOL shall
issue a collection document in amount equal to that verified in the
month immediately previous to the month in question. Eventual
differences between the amounts thus paid and those effectively due
shall be compensated when issuing the collection document of the
subsequent month.
4.7. The amount described in items 4.1.above is gross, being therein
already included all the taxes, liens and contributions that AOL is
responsible for collecting, no xxxxxx whatsoever being allowed, including
in what refers to the creation of new levying taxes or to the modification
of the levying rules (whether modification of the calculation basis or of
aliquots). The payments by TAC to AOL shall be effected with no retention,
except for those mandatory by law, of AOL's responsibility.
4.8. Non-payment, on maturity date, subjects TAC to the following
sanctions: (a) fine on arrears of 2% or the maximum percentage allowed by
the legislation in force which may eventually replace it, applied over the
overall amount of the non-paid debit, on the day following the maturity;
(b) interest on arrears per month (or fraction of the month) of 1% or the
maximum percentage allowed by the legislation in force, which may
eventually replace it, counted as of the first (1st) day subsequent to the
maturity and applied over the overall amount of the non-paid debit; and (c)
updated debit until the date of the effective payment, in accordance with
the IGP-DI [FGV] variation or by the index that eventually officially
replaces it.
4.9.TAC shall exert its best efforts, complying with the good faith
principle, aiming at maintaining the conditions of the present Agreement,
its Addendums and respective Exhibits, equally to those offered by TAC to
any server of access to the Internet equivalent to AOL, for similar hiring,
avoiding hiring which may affect the balance of the present Agreement.
5. Validity
5.1. This Agreement shall be in force as of the date of its execution,
remaining in force until the date of December 31, 2005.
6. Termination
6.1. The present Agreement can be legally terminated by any of the Parties,
with no liens, independently of any judicial or extra-judicial procedure or
notification and through a simple written notification to the other Party,
in case the other Party:
6.1.1. Transfers to third parties, wholly or partially, its rights and
duties arisen from this Agreement, without the previous written
authorization of the other Party;
6.1.2. Does not comply with any duty set forth in this Agreement,
fault which is not corrected within a (60) sixty-day term subsequent
to the notification of the other Party;
6.1.3. By concord between the Parties, with no penalty whatsoever for
any of the Parties;
8
6.1.4. In case of adjudication of bankruptcy or concordata or
liquidation or corporate dissolution of any of the Parties.
6.2. Contractual termination by virtue of initiative or fault of any of the
Parties, before the term agreed upon, in item 5.1 above, except for the
provisions of item 6.1 above, shall imply the payment of compensatory fine
to the other Party, in the amount of [**] reais (R$ [**]), amount to be
re-adjusted every twelve (12) months, counted as of this Agreement's
execution date, by applying the variation of the IGP-DI of Xxxxxxx Xxxxxx
Foundation.
7. Confidentiality.
7.1. Due to the access they have had and shall have to Confidential
Information of the other Party, the Parties reciprocally commit:
a) Not to allow access to the other Party's Confidential Information
to third parties who are not their managers, employees,
representatives, agents and advisors, and to them just in the
necessary extent to allow the attainment of the object of this
Agreement;
b) Not to make use of the Confidential Information, except for the
aims set forth in this Agreement and/or in other agreements
entered into between the Parties; to keep the greatest
confidentiality possible related to the received Confidential
Information, inclusive rigorously watching over it so that there
is no circulation of counterparts, e-mails, faxes and other forms
of private or public communication of the Confidential
Information, besides the strictly necessary for complying with
this Agreement.
7.2.The Parties acknowledge that it is not considered infraction to the
provisions of item 7 of this Agreement, the assumptions when:
a) The information is made available to the public in general
through means that do not arise form its conveyance by the
Parties or their respective shareholders/quotaholders, controlled
or controlling companies of their respective
shareholders/quotaholders, representatives, employees or
advisors;
b) The disclosure is demanded by a Governmental Authority, under the
penalty of featuring non-compliance and other penalty. In such
assumptions, the material to be disclosed shall be the object of
all applicable governmental or judicial protection, and the Party
which has to disclose such information shall notify the other
Party previously to the disclosure;
c) The disclosure is previously authorized by the other Party, in
writing;
7.3. The Parties shall instruct all those to whom they supply access to
Confidential Information from the other Party about the secrecy duty and
about the need not to disclose the obtained information.
7.4. The Parties will be kept under the duty to maintain the strictest
secrecy regarding the Confidential or Privileged Information, obtained by
virtue of the execution of this
9
Agreement, for a (3) three-year term, counted as of its expiration and its
eventual extensions.
7.5. Violation of the duties set forth in this item or the non-compliance
with the confidentiality duties set forth in this instrument, shall subject
the infringing Party to refund all the losses incurred by the damaged Party
due to such violation, being such indemnification duty exclusively limited
to the direct damages duly evidenced that the damaged Party may eventually
incur, by virtue of the non-compliance with the confidentiality duties
herein agreed upon.
8. Communications
8.1. Any notice, notification, request or communication related to the
present Agreement shall be sent to the addresses stated below through: (i)
registered letter, assumption where the terms shall be counted as of the
third weekday subsequent to the mailing date; (ii) telegram, (ii) fax, with
transmission evidencing, being pointed out that, in such a situation, the
original document must be delivered to the addressed Party via copied and
docketed mail within five (5) weekdays, or (iv) personal delivery, with
docket signed by the addressee or, in his absence, by a legal
representative appointed by him:
TNL.Acesso S.A.
Gerente TAC:A/C Sr. Xxxxxx Xxxxxx Passos [ Manager]
xxxxxx.xxxxxx@xxxxxxx.xxx.xx
Fax: (00) 0000-0000
Phone: (00) 0000-0000
AOL
Diretor de Operacoes [Operations Director]
Xx. Xxxxxxxxxx 000 - 0. andar
Xxxxx Xxxxx - SP
Fax: (00) 0000-0000
Phone: (00) 0000-0000
9. Miscellaneous
9.1. The current Agreement commits the Parties and their successors, at any
title.
9.2. Any modification to this Agreement shall be valid only through written
instrument, duly signed by the Parties.
9.3. The unenforceability or the invalidity of any clause or provision to
this Agreement will not affect the enforceability and the validity of the
other clauses and provisions, except if the joint provisions give rise to
the matter that the Parties' wishes would not have been that of hiring
without the unenforceable or invalid provisions.
9.4.None of the Parties can, by no means, assign, transfer, either fully or
partially, the present Agreement or any rights stemming from it, without
the written consent of the other
10
Party, except in the cases of transference arisen from corporate
re-structuring and other forms of merger, spin-off or incorporation of the
Parties, as well as in the case of assignment of rights stemming from this
Agreement, its Addendums and respective Exhibits to their respective
Affiliates.
9.4.1. Transference rights to Affiliates allowed pursuant to the terms
of item 9.4 above, do not apply to Competing Entities, being the
latter defined as: (i) legal entity which makes revenue by rendering
dialed access services to the Internet or which has as its social
object the rendering of dialed access services to the Internet or (ii)
legal entity which makes revenue by rendering broad band services to
the Internet or which has as its social object the rendering of broad
band services to the Internet, except for, in this case, the
telecommunication companies. Competing Entity should not be
misunderstood with controlled, colligate or controlling legal entities
of the service providers to Internet access.
9.5. Eventual partial or full assignment or transference of the present
Agreement or of any rights or duties stemming from it, shall not excuse the
Assignor from any of its responsibilities or duties stemming from this
Agreement.
9.6. Abstaining from the performance, by any of the Parties, of the right
or authorization they are granted by force of this Agreement, or agreeing
with the delays for complying with the other Party's duties, shall not
affect those rights and authorizations that can be performed, at any time,
at the exclusive discretion of the Party that owns them, nor shall this
affect the conditions contained in this Agreement.
9.7. All the terms set forth in this Agreement shall be counted as
determined in article 184 of the Civil Procedure Code, that is, with the
exclusion of the day of its beginning and including the date of its
expiration.
9.8. Neither this Agreement, nor any of its provisions shall be interpreted
as constitutive of any corporate relationship between the Parties (whether
DE JURE or DE FACTO partnership or a trust). The Parties agree not to
perform any acts that may induce third parties to fault related to the
nature of its relationship and to the absolute independence of one in
relation to the other.
9.9. The items related to intellectual property rights and to
confidentiality, shall survive at the expiration or termination of this
Agreement.
9.10. The present Agreement is irrevocably irreversibly executed,
committing the Parties and their successors, at any title. For the purposes
of the present Agreement, the partnership arisen from merger, spin-off or
incorporation of any of the Parties shall be considered successor,
independently of its having the same name or corporate registration of the
originally contracting Parties.
9.11. During the term set forth in clause 4.1. hereinbefore, AOL shall not
use the eventual mechanisms for price reduction contained in the Agreements
with the Operator(s)
9.12. None of the Parties shall be liable for loss and damages,
particularly incidental indirect damages and loss of profit, and it shall
not indemnify the other Party's for
11
commercial drawbacks and for the complaints of third parties or of its
clients, arisen from failures occurred during the operation of the other
Party's responsibility, except for the cases of direct damages or in such
cases in which deliberate action or omission of one Party is evidenced,
aiming at damaging the other Party (malice).
10. Jurisdiction
The Parties elect the jurisdiction of the City of Sao Paulo, with express
waiver of any other, privileged as it may be, to settle any queries or
controversies from the present Agreement.
In witness whereof, the Parties execute the present Agreement, on their behalf
and on behalf of their successors and heirs, in two (02) counterparts of equal
form and content, to a single effect, in the presence of two (02) witnesses
below, who were present throughout.
Sao Paulo, March 31, 2003.
TNL.Acesso S.A.
/s/ Xxxxxxx xx Xxxxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx Xxxxx Vilela
------------------------------------ ----------------------------------------
Xxxxxxx xx Xxxxxxxx Xxxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxx
Identity Card: Identity Card:
AOL do Brasil Ltda.
/s/ Xxxxx Xxxxx
------------------------------------ ---------------------------------------
Xxxxx Xxxxx
Identity Casd: Identity Card:
Witnesses:
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx Fonzaghi
------------------------------------ ---------------------------------------
1. Name: Xxxxxxx Xxxxxxx 2. Name: Xxxxxxx Fonzaghi
Identity Card: Identity Card:
