Exhibit 10.24
GRIC COMMUNICATIONS, INC. SINGAPORE TELECOMMUNICATIONS LTD.
AGREEMENT
This Agreement is entered into as of August 3, 1999 (the "EFFECTIVE
DATE") by and between GRIC COMMUNICATIONS, INC. a California corporation with
offices at 0000 XxXxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000 XXX ("GRIC
COMMUNICATIONS"), and Singapore Telecommunications Ltd., a Singapore limited
company with offices at 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 000000
("SINGTEL"), and is as follows:
RECITALS
A. SingTel desires to build a global IP-based network for the purpose of
providing IP-based telecommunications services to SingTel business customers
called SingTel ConnectPlus IP Services (ConnectPlus Services).
B. GRIC Communications, the global leader in providing multiple IP-based
services for carriers and Internet Service Providers ("ISPs") worldwide, will
provide Convergent Services Platform Clearinghouse settlement services for
SingTel and ConnectPlus Partners (as defined below) within Territories A and B
relative to the SingTel ConnectPlus IP Services.
C. GRIC Communications will negotiate and enter into agreements with
selected GRIC Alliance members within Territory B (by amendment of certain
agreements between GRIC and such GRIC Alliance members) under which they will
become ConnectPlus B Partners and provide ConnectPlus Services (as defined
below) in their respective countries.
NOW, THEREFORE, IT IS AGREED BY THE PARTIES AS FOLLOWS:
1. DEFINITIONS
The capitalized terms set forth in this Section 1 have the meanings
ascribed to them as set forth in this Section 1. Capitalized terms used in this
Agreement that are not set forth in this Section 1 have the meanings ascribed to
them elsewhere in this Agreement.
"CONNECTPLUS CUSTOMER" means a corporation or other entity which
enters into a written agreement with SingTel or a ConnectPlus Reseller to obtain
ConnectPlus Services.
"CONNECT PLUS A PARTNER" means an entity which contracts with SingTel
to serve as a network node partner in order to enable delivery of ConnectPlus
services in a specific country and enters into an appropriate settlement
agreement with GRIC for GRIC to perform the settlement function between SingTel
and ConnectPlus A Partner in relation to the ConnectPlus services.
"CONNECTPLUS B PARTNER" means a GRIC Alliance member which contracts
with GRIC to serve as a network node partner in order to enable delivery of
ConnectPlus services in a specific country. GRIC will perform the settlement
function between SingTel and ConnectPlus B Partner in relation to the
ConnectPlus services.
"CONNECTPLUS PARTNERS" means ConnectPlus A Partners and ConnectPlus B
Partners, collectively.
"CONNECTPLUS RESELLER" means an entity which is appointed by
SingTel to resell ConnectPlus Services in one or more designated territories
or markets.
"CONNECTPLUS SERVICES" means the IP-based telecommunications services
provided by SingTel to certain of its corporate customers through a global IP-
based network and which are known as SingTel ConnectPlus IP services.
"CONNECTPLUS SUBSCRIBER" means an authorized end user of a ConnectPlus
Customer who is permitted to utilize the ConnectPlus Services.
"CONVERGENT SERVICES PLATFORM" or "CSP" means the proprietary GRIC
Communications software platform that enables clearinghouse settlement and the
provision of other value-added services.
"CSP CLEARINGHOUSE" means the proprietary GRIC Communications server
software application that provides clearinghouse settlement services for
GRICtraveler Software-TM- usage when properly configured. Settlement means
generating the correct charging information related to the Settled Traffic (as
defined in Sections 9.2 and 9.3 below) and making this information available to
SingTel as defined hereunder. CSP Clearinghouse consists of Authentication and
Authorization (AAS) servers and Settlement (ARS) servers operated in accordance
with EXHIBIT F.
"DERIVATIVES" means specific instructions or sets of instructions in
Executable Code that are not included in the GRICtraveler-TM- Software, but
which, when used alone or with the GRICtraveler-TM- Software, constitute a
modification, enhancement, correction, update, translation, interpretation,
listing, compilation, or derivative of the GRICtraveler-TM- Software, and all
copies and portions thereof in any media.
"DESIGNATED PLATFORM" means SingTel's servers in Territory A, on which
SingTel will install GRICtraveler-TM- and which are identified on EXHIBIT D
hereto, as updated from time to time by SingTel on written notice to GRIC
Communications.
"DOCUMENTATION" means manuals, user guides, and other documentation
relative to the GRICtraveler-TM- Software, including all modifications, updates,
derivations, and changes thereto, whether in written, graphical, human readable,
or machine readable form and in any media.
"EXECUTABLE CODE," sometimes also referred to as object code, means
the machine executable form of the GRICtraveler-TM- Software or any copy thereof
in any media.
"GLOBAL REACH INTERNET CONNECTION-TM-" (or "GRIC ALLIANCE-TM-") means
a worldwide alliance of ISPs coordinated by GRIC Communications with the
objective of providing telecommunications services and other value-added
services through the Internet.
"GRIC Trademarks" means the various trademarks, service marks and
logos owned or licensable by GRIC Communications as described on EXHIBIT C-1
hereto.
"GRICTRAVELER-TM- SOFTWARE" means those modules of the software
program described on EXHIBIT A to this Agreement in Executable Code for which
SingTel has paid the license fees described in EXHIBIT B of this Agreement.
The GRICtraveler Software does not include any Derivatives unless this
Agreement otherwise provides.
"GRICTRAVELER-TM-" means the GRICtraveler-TM- Software and the
Documentation.
"INITIAL PHASE" means the period defined in EXHIBIT F hereto and
during which GRIC Communications and SingTel operate in accordance with the
procedures set forth therein.
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"INTELLECTUAL PROPERTY RIGHTS" means patent rights, copyright rights
(including, but not limited to, rights in audiovisual works and moral rights),
trade secret rights, and any other intellectual property rights recognized by
the law of each applicable jurisdiction.
"SINGTEL TRADEMARKS" means the various trademarks, service marks and
logos owned or licensable by SingTel as described on EXHIBIT C-2 hereto.
"SITES" means the locations of the central processing unit of the
Designated Platforms.
"TERRITORY A" means the countries/cities in which GRIC will perform
the settlement function for SingTel and ConnectPlus A Partners relative to
the ConnectPlus Services.
"TERRITORY B" means the countries/cities in which SingTel wishes to
offer ConnectPlus Services as notified to GRIC Communications in writing from
time to time and in which GRIC will negotiate and enter into agreements with
ConnectPlus B Partners to enable delivery of ConnectPlus Services in their
respective countries.
2. TRADEMARKS
2.1 SingTel recognizes the value of the goodwill associated with
the GRIC Trademarks, GRIC Communications' ownership of the GRIC Trademarks,
and the reservation by GRIC Communications of all rights to the GRIC
Trademarks. SingTel agrees to use the GRICtraveler-XX- xxxx solely to refer
to and identify GRICtraveler-TM- and GRIC Communications' technology, and
that such usage shall be in accordance with GRIC Communications' usage
guidelines as revised from time to time. [SingTel acknowledges receipt of a
copy of the GRIC Communications Trademark Guidelines in effect as of the
Effective Date.] In all written text (whether in electronic or paper form)
on this subject, ownership of the GRIC Trademarks shall be attributed to GRIC
Communications as follows: "GRICtraveler-TM-, Global Reach Internet
Connection-TM- and GRIC-TM- are trademarks of GRIC Communications, Inc."
SingTel further agrees not to make any other use of, challenge the validity
of, or file applications to register, any name or xxxx containing any of GRIC
Communications' trademarks, whether or not such trademarks are listed herein,
without GRIC Communications' advance written permission. SingTel agrees that
all goodwill associated with GRIC Communications' Trademarks shall insure to
the sole benefit of GRIC Communications.
2.2 GRIC Communications recognizes the value of the goodwill
associated with the SingTel Trademarks, SingTel's ownership of the SingTel
Trademarks, and the reservation by SingTel of all rights to the SingTel
Trademarks. GRIC Communications agrees to use the ConnectPlus xxxx solely to
refer to and identify the ConnectPlus Services. GRIC Communications further
agrees not to make any other use of, challenge the validity of or file
applications to register, any name or xxxx containing any of SingTel's
trademarks, whether or not such trademarks are listed herein, without SingTel's
advance written permission. GRIC Communications agrees that all goodwill
associated with SingTel's Trademark shall insure to the sole benefit of SingTel
3. INSTALLATION AND ACCEPTANCE.
Before delivery and installation, SingTel shall prepare the Site
and/or the Designated Platform for installation of the GRICtraveler-TM-
Software according to GRIC Communications' instructions. Promptly after the
Effective Date, GRIC Communications shall deliver the GRICtraveler-TM-
Software to the Designated Platform at the Site, and shall deliver to the
Site one (1) copy of the applicable Documentation. GRICtraveler-TM- is
shipped F.O.B. from GRIC Communications' office in Milpitas, California.
SingTel shall be responsible for installing the GRICtraveler-TM- Software on
the Designated Platform at the Site, but GRIC Communications will assist
SingTel in the installation process as reasonably requested by SingTel.
4. LICENSE GRANTS
4.1. SCOPE OF LICENSE. Subject to the terms and conditions of
this Agreement, and effective upon payment of the amounts specified in Section
9.1.1, GRIC Communications hereby grants to SingTel a non-
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exclusive, non-transferable, fee-bearing, perpetual license to use (without
the right to sub-license or distribute) GRICtraveler-TM- Software and any
Derivatives delivered by GRIC Communications, in Executable Code, and
Documentation for SingTel's internal use only, including use by SingTel's
majority-owned subsidiaries, solely on the Designated Platform at the Sites
solely in connection with ConnectPlus Services in Territory A and Territory B.
4.2. RIGHT TO MAKE BACK-UP COPY. SingTel may make one
archival back up copy of the GRICtraveler-TM- Software (and any Derivatives
delivered by GRIC Communications) and the Documentation per Site for use at
such Site.
4.3. LICENSE RESTRICTIONS. SingTel shall not copy or
knowingly permit any other person to copy any portion of GRICtraveler-TM-
except for the purposes authorized in this Agreement or for back-up and
archival purposes. SingTel shall not, and shall not allow others to, reverse
engineer, reverse compile, or disassemble any of the GRICtraveler-TM-
Software, any Derivative, or any portion of the foregoing. SingTel shall
notify GRIC Communications if SingTel becomes aware of any attempt to reverse
engineer, reverse compile, or disassemble the GRICtraveler-TM- Software, any
Derivative, or any portion of the foregoing.
4.4. RESERVATION. GRIC Communications reserves all rights and
licenses not expressly granted to SingTel pursuant to this Agreement.
5. DELIVERABLES
GRIC Communications shall provide SingTel with the items specified as
deliverables on EXHIBIT A.
6. SINGTEL COMMITMENTS
6.1. LICENSING OF GRICTRAVELER-TM-. In order to enable GRIC
Communications to provide settlement services using the CSP Clearinghouse,
SingTel agrees to (i) install and use the GRICtraveler-TM- Software only as
provided in this Agreement, subject to the terms and conditions hereof, and (ii)
to install and use any updates of the GRICtraveler-TM- Software provided to
SingTel promptly upon receipt thereof.
6.2. TECHNICAL SUPPORT. SingTel agrees to provide local
support and network management for the Designated Platform on which the
GRICtraveler-TM-Software runs, and to exercise commercially reasonable
efforts with respect to maintaining GRIC-related services in substantially
the same way SingTel maintains its other services, including but not limited
to, providing immediate response and action to cooperate with GRIC
Communications' Network Operation Center to remedy any failure of any server
used to provide GRIC-related services. SingTel agrees to maintain hardware
and software on a GRIC Communications-supported release. For high severity
problems, which could cause loss of data, data corruption, system failure or
a potential security breach, SingTel agrees to implement a GRIC
Communications-provided fix within 48 hours of receipt of the fix. SingTel
will also provide GRIC Communications-designated network support personnel
(the names of which shall be notified to SingTel in writing from time to
time) with authorization for remote access to an administrative account on
all Designated Platforms on which the GRICtraveler software runs in order to
perform GRICtraveler administrative functions so as to enable GRIC
Communications to perform the settlement functions contemplated herein.
6.3. INITIAL PHASE. During Initial Phase, SingTel will
perform its respective functions described in EXHIBIT F.
6.4. NON-SOLICITATION. During the term of this Agreement and
for a period of one (1) year thereafter, SingTel covenants that it will not,
directly or indirectly, enter into a settlement agreement or similar
arrangement with any ConnectPlus B Partners (excluding ConnectPlus B Partners
which are direct or indirect subsidiaries of SingTel) to perform a settlement
function similar to that performed by GRIC Communications under this
Agreement. For avoidance of doubt, this subsection shall not operate to
preclude or limit SingTel's ability to enter
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into agreements with ConnectPlus B Partners to become ConnectPlus Resellers,
provided that such agreements do not otherwise operate to undermine the
settlement role performed by GRIC Communications hereunder.
7. GRIC COMMUNICATIONS COMMITMENTS
7.1. RECONCILE TRAFFIC. As provided in this Agreement, GRIC
Communications will utilize CSP Clearinghouse to reconcile all traffic activity
logs in relation to the ConnectPlus Services, and collect and redistribute all
fees related to ConnectPlus Services traffic activity between and among SingTel
and the ConnectPlus Partners.
7.2 SIGNING NEW CONNECTPLUS PARTNERS. GRIC Communications
will be responsible for signing up ConnectPlus B Partners to provide
ConnectPlus Services and shall seek written assurances from these ConnectPlus
B Partners that these ConnectPlus B Partners have obtained the licenses,
approvals or permits required, if any, to provide the ConnectPlus services in
their respective countries.
7.3 SERVICE LEVEL AGREEMENT. GRIC Communications agrees to
cause the ConnectPlus B Partners to agree to comply with the terms of the
Service Level Agreement set forth in EXHIBIT E ("SLA"). In the event a
ConnectPlus B Partner fails to materially conform to the SLA, GRIC
Communications shall, upon SingTel's written request, cease to permit such
ConnectPlus B Partner to provide ConnectPlus Services; provided, that such
ConnectPlus B Partner shall first be afforded a reasonable opportunity to
cure any such nonconformity within 7 days from the date that SingTel gives
the written request to GRIC
7.4. INITIAL PHASE. During Initial Phase, GRIC Communications
will perform its respective functions described in EXHIBIT F.
8. MAINTENANCE AND SUPPORT
8.1. GRIC COMMUNICATIONS MAINTENANCE. During the term of this
Agreement, GRIC Communications shall provide SingTel with periodic updates of
the GRICtraveler-TM- Software that may incorporate (i) corrections of any
substantial defects, (ii) fixes of any minor bugs, and (iii) at the discretion
of GRIC Communications, whose discretion shall not be unreasonably exercised,
enhancements to the GRICtraveler-TM- Software, in each case where practicable.
8.2. GRIC COMMUNICATIONS TECHNICAL SUPPORT. During the term of
this Agreement, GRIC Communications will use reasonable efforts to promptly
correct Errors that are reported by SingTel and reproducible by GRIC
Communications. "Errors" are material failures of the GRICtraveler-TM- Software
to perform in substantial conformity with the Documentation. GRIC
Communications shall provide email, telephone and fax support between the hours
of 9:00 a.m. and 6:00 p.m., Singapore time, Monday through Friday, excluding
GRIC Communications holidays.
8.3 Training. GRIC Communications may provide training
services to SingTel's personnel at such times and at such places as GRIC
Communications and SingTel may agree. GRIC Communications shall provide the
training at GRIC Communications' standard hourly rates (plus materials costs
and all related expenses including travel costs) at the time of the agreement.
8.4 PROFESSIONAL SERVICES. In the event that SingTel
requires additional software engineering or other professional services, any
such work shall be done in accordance with the terms of a separate
professional services agreement mutually agreed upon by the parties. Such
services shall be provided at GRIC's standard hourly rates plus materials
costs and all related expenses including travel costs at the time of the
agreement.
9. FEES, BILLING AND SETTLEMENT
9.1. FEES.
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9.1.1. LICENSING FEE. In consideration of SingTel
agreeing to use GRIC Communications to settle all roaming traffic arising under
this Agreement, SingTel shall not be required to pay GRIC Communications the
normal Licensing Fee of $4,995 per Site for use of the GRICtraveler-TM- Software
as described hereunder.
9.1.2. MAINTENANCE FEES. SingTel shall not be required
pay GRIC Communications an Annual Maintenance Fee during the initial year of
this Agreement. GRIC Communications shall offer maintenance under Section 8.1
and Section 8.2 in subsequent periods based on an acceptable maintenance fee
schedule mutually agreed to by the parties taking into consideration the
prevailing market rate for such maintenance.
9.1.3. SETTLEMENT FEES. SingTel agrees to pay the
settlement fees for the settlement services rendered by GRIC Communications in
Territory A and Territory B hereunder in accordance with the terms set forth on
Exhibit B.
9.1.4. TRAINING AND PROFESSIONAL SERVICES FEES. In the
event that SingTel requests and GRIC Communications provides training or
professional services as contemplated above, SingTel agrees to pay the fees and
expenses described in Section 8.3 and 8.4, respectively. The current standard
rates for these services as of the Effective Date are set forth in EXHIBIT B.
9.2. BILLING. At the end of each billing period (calendar
month), GRIC Communications will generate for SingTel one consolidated statement
of all ConnectPlus Services traffic among ConnectPlus Subscribers, ConnectPlus
Partners and SingTel ("SETTLED TRAFFIC"). This statement will bear the date on
which it was generated (the "STATEMENT DATE"), and will detail and reconcile all
Settled Traffic, and will show an aggregate amount owed or amount due which will
be paid to or received from GRIC Communications. In addition, SingTel shall
have access to a password-protected GRIC Communications, Inc. web site which
will contain a statement detailing and reconciling all ConnectPlus Services
traffic activities among ConnectPlus Subscribers, ConnectPlus Partners and
SingTel.
9.3. SETTLEMENT. GRIC Communications will settle the Settled
Traffic as set forth in this Section 9, EXHIBIT B, and the ConnectPlus
Settlement Operational Plan to be mutually agreed on by the parties. Disputes
among ConnectPlus Partners will be resolved according to settlement and
operational procedures in the ConnectPlus Settlement Operational Plan, a copy of
which is attached hereto as EXHIBIT G.
9.3.1 PAYMENT BY SingTel. In the billing statement set
forth in Section 9.2, GRIC Communications will reconcile all Settled Traffic and
determine the aggregate "amount owed" or "amount due" for all Settled Traffic.
Any amounts owed by SingTel are due and payable upon SingTel's receipt of the
statement, but shall not be considered overdue until thirty (30) days after the
Statement Date (the "grace period"). Payments received during such grace period
will not incur a late charge. If payments are received after the grace period
GRIC Communications may assess a late charge of 1.5% per month from the
Statement Date of the amount due with a minimum charge of 1.5%. GRIC
Communications reserves the right to suspend service upon written notification
to SingTel if SingTel is over 30 days delinquent in their payment of any amount
which has not been disputed in good faith under Section 9.3.4 below and such
payment is still not made by SingTel within seven (7) days of such written
notification.
9.3.2 REDISTRIBUTION OF FUNDS BY GRIC COMMUNICATIONS.
GRIC Communications will collect all amounts received from SingTel and from the
ConnectPlus Partners for each billing statement under Section 9.2, and will
redistribute collected amounts within sixty (60) days of the Statement Date. In
the event that GRIC Communications is to pay SingTel certain amounts based upon
a certain statement under Section 9.2, GRIC Communications agrees to pay SingTel
such amount owed within such sixty (60) day period even if such amounts are owed
but unpaid to GRIC Communications. If payments are not received after the sixty
(60) day period, SingTel may assess a late charge of 1.5% per month from the
Statement Date of the amount due with a minimum charge of 1.5%.
9.3.3 SET-OFF AND OVERPAYMENT. Either party may set
off from any amounts to be paid to the other under this Agreement an amount
equal to any amount then owed by such other party and past due under
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this Agreement. Any amount mistakenly overpaid to either party will
immediately be refunded upon discovery or upon demand by the other party and
forwarded to the entity entitled thereto, and either party may set off
amounts overpaid from the next payment due to the other party under this
Agreement should the other party have failed to refund any overpaid amounts
prior to such payment.
9.3.4 FEE DISPUTES. Any disputed amounts may be questioned
within sixty (60) days of the Statement Date. After such sixty (60) day
period, the billing becomes final. SingTel must transmit any questions
regarding billing to GRIC Communications in writing with specific reference
as to why the billing "log" is considered incorrect. GRIC Communications
will exercise reasonable efforts to resolve a disputed billing within sixty
(60) days of such notification.
9.4. TAXES AND DUTIES. The paying party ("Paying Party") shall
pay the amounts due under this Agreement to the other party ("Receiving Party").
In the event any taxes or duties are payable by the Paying Party on such amount
payable hereunder, such taxes shall be borne by the Receiving Party. Further,
in the event any taxes are required to be withheld by the Paying Party on
payments to the Receiving Party required hereunder, provided that the Paying
Party promptly delivers to such Receiving Party an official receipt for any such
taxes withheld or other documents necessary to enable such other party to claim
a foreign tax credit, the Paying Party may deduct such taxes from the amount
owed to the Receiving Party and shall pay them to the appropriate tax authority.
The Paying Party will make certain that any taxes withheld are minimized to the
extent permitted by the applicable law. The parties shall be responsible for
and shall pay their own corporate and other taxes howsoever arising from their
activities in connection with this Agreement.
9.5 METHOD OF PAYMENT. Unless otherwise notified to SingTel
in writing by GRIC Communications, all payments to GRIC Communications shall
be made via wire transfer and be made payable to GRIC Communications. Payment
shall be remitted to Bank of America located at 000 Xxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America with the following account number
references: ABA No. 000000000 and Account No. 14934-04689. All payments
shall be made in United States currency. Unless otherwise notified to GRIC
Communications in writing by SingTel, all payments to SingTel shall be made
via wire transfer and be made payable to Singapore Telecommunications Ltd.
Payment shall be remitted to the Bank of New York CHIPS UID 034675 for
account of DBS Bank, Singapore favoring Singapore Telecommunications Limited
located at 000, 0xx Xxxxxx, 00xx Xxxxx Xxx Xxxx XX0000, Xxxxxx Xxxxxx of
America with the following account number references: ACU current account
no.: 0001-000070-01-2. All payments shall be made in United States currency.
9.6 FRAUD MINIMIZATION. GRIC Communications and SingTel shall
cooperate and confer in good faith with each other and with the ConnectPlus
Partners to work out procedures to identify and prevent fraud in the usage of
ConnectPlus Services, and to work out mutually agreed liability limitations on
fraudulently incurred charges incurred on one ConnectPlus Partner's network and
sought to be charged back to another ConnectPlus Partner through the settlement
process. Such limitations shall act to reduce a ConnectPlus Partner's liability
only if it has applied the agreed upon fraud provision measures.
10. EXPORT
GRIC Communications' obligation to deliver any portion of
GRICtraveler-TM- is subject to compliance by GRIC Communications and SingTel
with applicable laws, rules, and regulations of the United States Department
of Commerce and other applicable governmental agencies concerning the export
of goods or technology from the United States. Before SingTel uses any
portion of GRICtraveler-TM- outside the United States, SingTel shall: (a)
fully comply with all then current regulations of the United States
Department of Commerce and other applicable governmental agencies; (b) fully
comply with all then current and applicable regulations of the government of
the Territory; and (c) take reasonable precautions to protect the proprietary
rights of GRIC Communications in the Territory.
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11. DISCLAIMER
11.1. AUTHORITY; SPECIFICATIONS. GRIC Communications warrants that
(a) it has the right to enter into this Agreement and that it has the right to
grant the licences hereunder and (b) GRICtraveler shall substantially conform to
the specifications set forth in the Documentation which accompanies the software
upon delivery to SingTel. SingTel's sole remedy in the event of breach of
Section 11.1(b) is either replacement of a non-conforming item of software with
a conforming version or termination of this Agreement, at GRIC's option. Prior
to exercising its right to terminate under this Section 11.1, GRIC
Communications shall first use commercially reasonable efforts to provide
SingTel with a conforming version of the software.
11.2. NO WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION
11.1 AND IN THIS AGREEMENT, GRIC COMMUNICATIONS MAKES NO WARRANTY, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE, REGARDING GRICTRAVELER-TM- OR ITS USE ALONE OR IN COMBINATION WITH ANY
OTHER PRODUCTS. NO EMPLOYEE OR AGENT OF GRIC COMMUNICATIONS IS AUTHORIZED TO
MAKE ANY OTHER REPRESENTATION, WARRANTY, OR PROMISE WITH RESPECT TO
GRICTRAVELER-TM-.
12. TITLE AND PROPRIETARY RIGHTS
12.1. TITLE. Title to GRICtraveler-TM- and Derivatives and know-
how and all Intellectual Property Rights pertaining thereto, shall at all times
be vested in GRIC Communications or its suppliers. SingTel shall have no
ownership of GRICtraveler-TM- or any Derivatives, or any portion thereof other
than ownership of the physical media on which permitted copies of the
GRICtraveler-TM- and any Derivatives may be present.
12.2. CONFIDENTIAL INFORMATION.
12.2.1. DEFINITION. "Confidential Information" means: (i)
business or technical information concerning the products, customers, customer
data, marketing and business plans, operations, research, development or know-
how; (ii) any other information disclosed in written or other tangible form and
is marked "Confidential," "Proprietary," or in some other manner to indicate its
confidential nature; or (iii) oral information which is designated as
confidential at the time of disclosure and is later reduced to writing within 30
days; "Confidential Information" does not include information that: (i) in its
aggregate form, is in or enters the public domain through no fault of the
receiving party; (ii) is known to the receiving party, without restriction on
its use or disclosure, at the time of disclosure; (iii) is independently
developed by the receiving party without any use of the Confidential Information
of the other party, as demonstrated by documentation created concurrently with
such development.
12.2.2. RESTRICTIONS ON CONFIDENTIAL INFORMATION. Each
party will maintain the Confidential Information of the other party in strict
confidence and will exercise due care with respect to the handling and
protection of such Confidential Information, consistent with its own policies
concerning protection of its own Confidential Information of like importance.
Each party will use the Confidential Information of the other party only as
expressly permitted herein, and will disclose such Confidential Information only
to its employees and consultants as is reasonably required in connection with
the exercise of its rights and obligations under this Agreement (and only
subject to binding use and disclosure restrictions at least as protective as
those set forth herein executed in writing by such employees and consultants).
However, each party may disclose Confidential Information of the other party
pursuant to the order or requirement of a court, administrative agency, or other
governmental body, provided that the receiving party gives reasonable notice to
the other party to contest such order or requirement. Any such disclosure by
the receiving party of the Confidential Information of the disclosing party,
will, in no way, be deemed to change, affect or diminish the confidential and
proprietary status of such Confidential Information.
12.3. NOTIFICATION. Each party shall notify the other immediately
upon discovery of any unauthorized use or disclosure of the other's Confidential
Information, or any other breach of this Agreement by such party, and
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shall fully cooperate with the other party to help regain possession of
Confidential Information and prevent the further disclosure of Confidential
Information.
13. INFRINGEMENT INDEMNITY
13.1. INDEMNIFICATION. Subject to the conditions of Section 13.2,
GRIC Communications shall defend or settle any claim, proceeding, or suit
("Claim") against SingTel for infringement of any United States, Territory A or
Territory B patent, copyright, or misappropriation of a trade secret arising
from the sale or use of GRICtraveler-TM-, subject to the limitations set forth
in this Section 13. GRIC Communications shall have sole control of any action
or settlement and shall pay any final judgment entered against SingTel on such
issue in any Claim that GRIC Communications defends. GRIC Communications will
also have the right to control any litigation involving GRIC Communications'
trademarks and service marks and logotypes. GRIC Communications shall not be
liable for any cost, expense, or settlement incurred without GRIC
Communications' prior written authorization.
13.2. NOTICE AND COOPERATION. SingTel shall (a) notify GRIC
Communications promptly in writing of any Claim, (b) give GRIC Communications
all information in SingTel's actual knowledge with respect to the Claim, (c)
cooperate with GRIC Communications in all reasonable respects, and (d) at GRIC
Communications' request give GRIC Communications any additional authority GRIC
Communications needs to defend or settle such Claim.
13.3. REMEDIES. If GRIC Communications determines that there is a
material risk that GRICtraveler-TM- may incur a Claim that would give rise to a
right of indemnification under this Agreement, GRIC Communications shall at its
expense (a) use commercially reasonable efforts to procure for the SingTel the
right to use GRICtraveler-TM-; (b) if the remedy in sub-clause (a) of this
Section 13.3 is not feasible, use commercially reasonable efforts to provide a
non-infringing product that performs comparably to GRICtraveler-TM-; or (c) if
the remedy in sub-clause (b) of this Section 13.3 is not feasible, terminate the
license granted by this Agreement as to GRICtraveler-TM- and all further
obligation of SingTel to pay fees as provided under this Agreement with respect
to GRICtraveler-TM-.
13.4. EXCLUSIONS. Notwithstanding anything to the contrary in
this Agreement, GRIC Communications shall have no liability for (a) infringement
caused by use of GRICtraveler-TM- in combination with any other good, method, or
process if the infringement is caused by the combination; (b) infringement
involving any trademark, service xxxx, or logo type other than trademarks or
other marks that refer to GRIC Communications; or (c) infringement resulting
from modification of GRICtraveler-TM- by a person other than GRIC
Communications; (d) infringement resulting from compliance with any plans,
specifications, or designs provided by SingTel.
13.5. NO OTHER LIABILITIES OR REMEDIES. This Section 13 states
the entire liability of GRIC Communications and the exclusive remedy of SingTel
for any claim that GRICtraveler-TM- infringes any patent, trademark, copyright,
or otherwise. The total obligation of GRIC Communications pursuant to this
Section 13 shall not at any time exceed the total amounts paid to GRIC
Communications pursuant to this Agreement during the preceding 12 calendar
months.
13.6. INDEMNIFICATION BY SINGTEL. Except for the foregoing claims,
SingTel shall defend, indemnify, and hold harmless GRIC Communications against
all expenses and damages arising out of any claims against GRIC Communications
as a result of any unauthorized use by SingTel of GRICtraveler-TM-. The total
obligation of SingTel pursuant to this Section 13.6 shall not at any time exceed
the total amounts paid to SingTel pursuant to this Agreement during the
preceding 12 calendar months.
14. TERM AND TERMINATION
14.1. TERM. The initial term of this Agreement is two (2) years
from the Effective Date, and is automatically renewed on an annual basis
thereafter unless sooner terminated as provided below.
14.2. TERMINATION FOR BREACH. Either party may terminate this
Agreement if the other party breaches any material term or condition of this
Agreement and fails to cure that breach within thirty (30) days after
receiving
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written notice of the breach. Except for any failure to pay money, in the
event it takes more than thirty (30) days to cure the breach and the
breaching party has begun substantial corrective action to remedy the breach
within the initial thirty (30) day period and diligently continues to pursue
such remedy, termination shall not be effective until sixty (60) days have
expired since receipt of written notice of the breach if the breach has not
been cured within such sixty (60) day period.
14.3. EFFECT OF TERMINATION FOR BREACH. Upon termination for
breach of this Agreement, except as expressly provided herein, (a) the rights
and licenses granted to SingTel pursuant to this Agreement automatically
terminate, and (b) SingTel shall, within thirty (30) days, ship to GRIC
Communications or destroy (including purging from any system or storage media)
all items in its possession proprietary to GRIC Communications, including but
not limited to all copies of GRICtraveler-TM-, and an officer of SingTel shall
certify in writing to GRIC Communications that all copies of GRICtraveler-TM-
and other Confidential Information of GRIC Communications have been returned to
GRIC Communications or destroyed.
14.4. NON-RENEWAL. Either party may decide not to renew this
Agreement by providing written notice at least six (6) months in advance of the
renewal date described in Section 14.1 above.
14.5. NO LIABILITY UPON TERMINATION. Neither party shall be
liable to the other for any lost revenue, lost profit, or expenses incurred or
investment made in connection with the establishment, development, or
maintenance of the business of either party, or for any other damages, losses,
costs, or expenses of any kind whatsoever, other than the obligations to pay
amounts accrued under this Agreement before the date of termination.
14.6. Survival. The provisions of Sections 11, 12, 13, 14, and 15
shall survive the expiration, cancellation, or termination of this Agreement,
provided that Section 12 shall survive for three (3) years only.
15. GENERAL PROVISIONS
15.1. LIMITATION ON DAMAGES. EXCEPT AS SET FORTH IN SECTION 13,
NEITHER PARTY SHALL BE LIABLE FOR THE COSTS OF PROCURING SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE
DAMAGES, OR OTHERWISE, NOTWITHSTANDING ANY FAILURE OF GRICTRAVELER OR ANY GOOD
FAITH ERROR IN RENDERING CLEARING HOUSE SERVICES HEREUNDER, EVEN IF GRIC
COMMUNICATIONS IS AWARE OF THE CONSEQUENCES OF LATE DELIVERY, UNAVAILABILITY, OR
NON PERFORMANCE (PROVIDED THAT BEST EFFORTS ARE MADE TO NOTIFY SINGTEL OF SUCH
LATE DELIVERY OR UNAVAILABILITY OR NON PERFORMANCE IF AWARE OF SAME). IN NO
EVENT WILL EITHER PARTY'S MAXIMUM LIABILITY UNDER THIS AGREEMENT AT ANY TIME
EXCEED THE AMOUNTS PAID TO SUCH PARTY UNDER THIS AGREEMENT DURING THE PRECEDING
12 CALENDAR MONTHS.
15.2. ADDITIONAL ACTIONS AND DOCUMENTS. The parties shall execute
and deliver such further documents and instruments and shall take such other
further actions as may be required or appropriate to carry out the intent and
purposes of this Agreement.
15.3. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of the parties hereto and their respective successors and
assigns. Neither party shall assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of the other,
which consent shall not be withheld unreasonably.
15.4. FORCE MAJEURE. Neither party shall be liable for any breach
of this Agreement or delay in performance, except for the failure to pay money
due, resulting from a strike, lockout, or other labor dispute, fire, earthquake,
flood, civil commotion, war, riot, act of God, casualty, accident, shortage of
transportation facilities, detention of goods by custom authorities, loss of
goods in public or private warehouse, delay in the delivery of energy, raw or
finished materials, parts, or completed merchandise by suppliers thereof, or
other cause beyond the reasonable control of or occurring without the fault of
such party ("FORCE MAJEURE"). Any deadline or time within
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which a party must perform under this Agreement shall automatically be
extended upon the occurrence of any such Force Majeure for a period equal to
the time lost because of such event, but not for more than 90 days. If such
Force Majeure continues for more than 90 days, then the party not in breach
of contract as a result of the Force Majeure, or either party if both are in
breach of contract as a result of the Force Majeure, may terminate this
Agreement upon written notice to the other.
15.5. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement
shall (a) confer any rights or remedies on any persons other than the parties
and their respective successors and assigns, (b) relieve or discharge the
obligation of any third person to any party, or (c) give any third person any
right of subrogation or action against any party.
15.6. AMENDMENTS, WAIVERS, AND CONSENTS. This Agreement shall not
be amended except in a writing signed by the parties. No waiver or consent shall
be binding except in a writing signed by the party making the waiver or giving
the consent. No waiver of any provision or consent to any action shall
constitute a waiver of any other provision or consent to any other action,
whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent except to the extent specifically set forth in writing.
15.7. OFFICIAL LANGUAGE. English is the official language of this
Agreement. The English language version of this Agreement or any document or
notice contemplated by this Agreement shall control in any conflict with any
version of such writing that is not in English.
15.8. NOTICE. Any notice, instruction, or communication required
or permitted to be given under this Agreement to any party shall be in writing
(which may include telecopier or other similar form of reproduction followed by
a mailed hard copy, but not electronic mail) and shall be deemed given when
actually received or, if earlier, five days after Dispatch by certified or
express mail, return receipt requested, postage prepaid, addressed to the
current residence or business address of the party or to such other address as
such party may request by written notice. Each party shall make an ordinary,
good faith effort to ensure that the person to be given notice actually receives
such notice. Each party shall ensure that the other parties to this Agreement
have a current address, fax number, and telephone number for the purpose of
giving notice. The parties' principal offices are presently located at the
following addresses:
GRIC: GRIC Communications, Inc.
0000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
X.X.X.
FAX: (000) 000-0000
Telephone: (000) 000-0000
Attn: General Counsel
SingTel: Singapore Telecommunications Ltd.
00 Xxxxxx Xxxx, #00-00 Xxxxxxxxx
Xxxxxxxxx 000000
FAX: x00 00000000
Telephone: x00 000 0000
Attn: Legal Department
A party may change his or its address for purposes of this Section by giving the
other party written notice of the new address in the manner set forth above.
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15.9. DISPUTE RESOLUTION.
15.9.1. NOTICE. A party who desires money damages or
equitable relief from the other party because of a claim relating to the subject
matter of this Agreement shall give written notice to the other party of the
facts constituting the breach or default (a "DISPUTE NOTICE"). This Section 15.9
is intended to cover all aspects of the relationship between the parties with
respect to the subject matter of this Agreement, including any claims based on
tort or other theories. Any additional claims the parties have against each
other shall also be subject to this Section 15.9.
15.9.2. NEGOTIATION. For no more than thirty (30) days
following delivery of a Dispute Notice (the "NEGOTIATION PERIOD") the parties
shall negotiate to resolve the dispute in good faith.
15.9.3. GOVERNING LAW AND ARBITRATION. This Agreement
shall be governed by the laws of England without reference to its provisions on
the conflict of laws. Any disputes between the parties relating to this
Agreement or its subject matter, including disputes as to validity, performance,
breach or termination, which cannot be settled by mutual agreement between the
parties during the Negotiation Period, shall be submitted to binding arbitration
under the Rules of Conciliation and Arbitration of the International Chamber of
Commerce as in force on the date of the commencement of the arbitration and as
modified by this arbitration clause. The appointing and administering body shall
be the International Chamber of Commerce. The number of arbitrators shall be
one. The Arbitration shall take place in London, England, and the proceedings
shall be conducted in the English language.
15.9.4. ARBITRABILITY. The arbitrator shall have the
power to determine what disputes between the parties are the proper subject of
arbitration.
15.9.5. PRELIMINARY REMEDIES. Notwithstanding this
Section 15.9, a party may apply to a court of competent jurisdiction for
prejudgment remedies and emergency relief in the form of a temporary restraining
order pending final determination of a claim through arbitration in accordance
with this Section 15.9.
15.9.6. COSTS AND ATTORNEY'S FEES. If the arbitrator
determines that the actions of a party or its counsel have unreasonably or
unnecessarily delayed the resolution of the matter, the arbitrator may in its
discretion require such party to pay all or part of cost of the mediation and
arbitration proceedings payable by the other party and may require such party to
pay all or part of the attorney's fees of the other party. This provision
permits an award of attorney's fees against a party regardless of which party is
the prevailing party.
15.10. REMEDIES CUMULATIVE. All remedies, whether under this
Agreement, provided by law, or otherwise, shall be cumulative and not
alternative.
15.11. ENTIRE AGREEMENT. This Agreement and the documents and
agreements contemplated in this Agreement constitute the entire agreement
between the parties with regard to subject matter hereof. This Agreement
supersedes all previous agreements between or among the parties. There are now
no agreements, representations, or warranties between or among the parties other
than those set forth in this Agreement or the documents and agreements
contemplated in this Agreement.
15.12. SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstances, is held invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall continue in full force without being impaired or
invalidated.
15.13. NO PARTNERSHIP, ETC. This Agreement does not make the
parties partners or joint venturers with each other or with any other GRIC
Alliance members, nor does it create any principal and agent or trustee and
beneficiary relationship or other association between any of the parties or with
any other GRIC Alliance members. No action taken by any party pursuant to this
Agreement shall create any such relationship in the absence of express
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language in this Agreement to the contrary. The relationship of the parties
to each other and of all GRIC Alliance members to each other and with GRIC
Communications, Inc. in each case is that of independent contractors.
15.14. AUTHORITY OF EXECUTING PARTIES. The undersigned represent
that they are authorized to execute and deliver this Agreement on behalf of the
respective parties hereto. Each party has relied upon the authority of the other
in executing and delivering this Agreement.
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15.15. TITLES, CAPTIONS, AND RECITALS. Section, and subsection
titles and captions contained in this Agreement are inserted as a matter of
convenience and for reference and in no way define, limit, extend, or describe
the scope of this Agreement or the intent of any of its provisions. If there is
any conflict between the Recitals at the beginning of this Agreement and the
substantive provisions of this Agreement, the substantive provisions shall
control.
15.16. EXHIBITS. All Exhibits hereto shall be deemed to be a part
of this Agreement and are fully incorporated in this Agreement by this
reference.
15.17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. A party may deliver this Agreement by
transmitting a facsimile copy of the signed signature page to the other party or
parties. A party who transmits a facsimile copy of the party's signed signature
page shall at the same time forward a signed original hard copy of the signature
page by mail or personal delivery.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first referenced above.
GRIC COMMUNICATIONS, INC. SINGAPORE TELECOMMUNICATIONS LTD.
By:________________________________ By:____________________________________
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx Xxxx
Title: Senior Vice President & Title: Managing Director
Chief Financial Officer Global Services Development
Date: August ___, 1999 Date: August ___, 1999
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