Exhibit 10.12
MANAGEMENT SERVICE AGREEMENT
THIS MANAGEMENT SERVICE AGREEMENT (the "AGREEMENT") is entered into and
effective as of April 1, 2002 by and between:
CLEARWAVE SERVICES (MAURITIUS) LTD., a limited liability company
incorporated under the laws of Mauritius, having its head office at 000 Xx.
Xxxxx Xxxxx, Xx. Denis Street, Port Louis, Mauritius, registered with Register
of Companies, Port Louis, under file no. 24170/5709, duly represented by Xxxxx
Xxxxxx (hereinafter referred to as " CLEARWAVE SERVICES "),
And
CLEARWAVE HOLDINGS BV, a company organized and existing under the laws
of The Netherlands, having its headquarters located at Strawinskylaan 707 1077
XX Amsterdam, registered with Amsterdam Chamber of Commerce under no.34171018,
duly represented by Xxxx Xxx Xxxxxxxxxx, or any affiliated company thereof
(hereinafter referred to as " CLEARWAVE "),
hereinafter collectively referred to as the "PARTIES", each a "PARTY".
RECITALS
WHEREAS, the Parties acknowledge that each of them wished to secure
certain experience of the other Party by means of the provision of technical
services from the other Party, under the terms and conditions provided by this
Agreement;
WHEREAS, the Parties acknowledge that ClearWave's customer also wishes
to benefit from the technical services available on a non-exclusive basis to
implement its business plan, under the terms and conditions provided by this
Agreement;
NOW THEREFORE, in consideration of the foregoing recitals and the
covenants and conditions set forth in this Agreement, the Parties agree as
follows:
1. OBJECT OF THE AGREEMENT
1.1. The Parties hereto have agreed upon the object of the Agreement being
the provision by either Party in favour of the other Party of the
services detailed under Section 2.1. below (the "SERVICES"), under the
terms and conditions provided by this Agreement.
1.2. Either Party hereto performing Services in favour of the other Party
shall be hereinafter referred to as the "SERVICE PROVIDER" and the
other Party which requests the performance of the Services and to the
benefit of which the Services are performed shall be referred to as the
"BENEFICIARY". The terms
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and conditions below shall be applicable irrespective of which Party
hereto acts as Service Provider and respectively as Beneficiary.
1.3. The Service Provider agrees to supply to the Beneficiary the Services
stipulated under Section 2.1. below and the Beneficiary agrees to pay
to the Service Provider a Service Fee under the terms and conditions
stipulated under Section 5 below.
2. SCOPE OF WORK
2.1. The Services rendered by the Service Provider to the Beneficiary shall
consist of technical and operational support granted to the Beneficiary
or to the Beneficiary's customer, relating to:
- Engineering and design services in connection with the
equipment used by the Beneficiary, including but not being
limited to consultancy provided by engineers and technical
assistance services;
- Technical assistance relating to operating and maintaining
wireless systems;
- To make sure that the vital functions of the Beneficiary's
organisation are adequately taken care by the Beneficiary's
managers;
- Preparation of business strategies and business plans as
required by Beneficiary and providing continuous support for
such strategies by way of updated surveys where necessary;
- Various types of evaluations.
2.2 The Services rendered by the Service Provider (either by itself or
through its subcontractors) to the Beneficiary or directly to the
Beneficiary's customer may also consist of supply of personnel to meet
even a temporary and/or sudden demand for personnel (hereinafter called
"the Personnel") raised by the Beneficiary to the Service Provider.
Every time the Beneficiary decides that it needs to have available a
number of personnel who can be suddenly assigned to complete works for
the Beneficiary or for the Beneficiary's customer, the Service Provider
shall ensure the supply of Personnel to the Beneficiary or to the
Beneficiary's customer. The Personnel supplied to the Beneficiary or to
the Beneficiary's customer shall render the Services described under
Section 2.1. above.
2.3 From time to time, the Beneficiary shall order Services through a
request submitted to the Service Provider using the service request
form ("Service Request"), a copy of which is attached hereto as
Appendix A. Within ten (10) business days after receipt of the Service
Request, the Service Provider shall send to the Beneficiary a
completely filled in staffing authorization form ("Staffing
Authorization Form"), a copy of which is attached hereto as Appendix B,
for execution by both the Service Provider and the Beneficiary. The
Services rendered by the Service Provider may be expanded to cover
other services only in writing through an Additional Act hereto.
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2.4 The Services shall be rendered by high-skilled personnel, who can be
assigned to perform the Services within the Beneficiary's company or
within the Beneficiary's customer. Notwithstanding its assignment to
the Beneficiary, the Personnel shall remain throughout the duration of
the assignment the employee or consultant of the Service Provider or
the Service Provider's subcontractors, as the case may be.
2.5 The Personnel rendering the Services hereunder shall not have the right
to represent either the Beneficiary or the Beneficiary's customer in
the latter's relations with third parties.
2.6 The Service Provider shall perform its Services according to the best
of its abilities.
2.7 Unless otherwise agreed by the parties, the Personnel rendering the
Services based on this Agreement, shall be working under the
supervision of and shall follow exclusively the instructions received
from:
(i) the Beneficiary if the Beneficiary is ClearWave Services;
(ii) the Service Provider if the Beneficiary is ClearWave.
3. PROVISION OF SERVICES BY SUBCONTRACTORS
3.1. In performing the Services, the Service Provider may subcontract with
reputable companies in the industry the performance of the Services
referred to under Sections 2.1. and 2.2. above.
3.2. The Service Provider undertakes to recruit and appoint only appropriate
third party subcontractors to carry out in favour of the Beneficiary or
the Beneficiary's customer, the Services referred hereunder.
3.3. The Beneficiary accepts and agrees that the subcontractors shall be
liable for the recruitment and appointment of the appropriate Personnel
to carry out the Tasks herein. In case the Service Provider
subcontracts the Services according to this Section 3, such Personnel
performing the Services shall continue to remain exclusively employed
by the subcontractors throughout the term of this Agreement. By signing
this Agreement, the Beneficiary agrees to address any complaints in
connection with subcontractors' Personnel directly to the
subcontractors. Any claim in Court and off Court regarding the
provision of the Services according hereto shall be raised by the
Beneficiary directly against the Service Provider's subcontractor, as
the Service Provider assigns hereby all its rights related to such
claims to the Beneficiary. The Service Provider shall include a clause
regarding the aforementioned assignment of rights in its contract(s)
with its subcontractor(s).
3.4. By signing this Agreement, the Service Provider agrees that the
Beneficiary's customer addresses any complaints in connection with the
Service Provider's
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performance to the Service Provider or even directly to the Service
Provider's subcontractors according to Section 3.3. above. Any claim in
Court and off Court regarding the provision of the Services according
hereto shall be raised by the Beneficiary's directly against the
Service Provider, as the Beneficiary assigns hereby all its rights
related to such claims to the Beneficiary's customer. The Beneficiary
shall include a clause regarding the aforementioned assignment of
rights in its contract(s) with its customer(s).
3.5. When the Personnel belongs to third party subcontractors, the liability
for the timely and appropriate delivery of Personnel as well as for the
timely and appropriate provision of Services, shall be entirely and
exclusively borne by the third party subcontractors.
3.6. In case the Services are performed by the Personnel of the Service
Provider's subcontractors, the Service Provider shall not have in its
possession any company documents and/or any other goods related to the
performance of the Services under this Agreement. Any such documents
and/or goods shall be directly sent between subcontractors and the
Beneficiary.
3.7. At all times, the Beneficiary shall provide the Service Provider and/or
the latter subcontractors with access to the information required for
the provision of the Services. More specifically, the Beneficiary shall
provide the Service Provider and/or the latter subcontractors with
access to its staff and information required for the completion of the
Services, in accordance with the provisions of this Agreement. Any
delay, misconduct, non-performance or any other kind of non-compliance
with the Beneficiary's obligation to render the Service Provider and/or
the latter subcontractors with access to information shall accordingly
exonerate the Service Provider and/or its subcontractors which have
acted diligently from their obligations under this Agreement and/or
subcontracts, until the Beneficiary remedies the situation or when the
contractual terms of the Service Provider's and/or the latter
subcontractors obligations are re-assessed under the new circumstances.
4. THE SERVICE PROVIDER'S RESPONSIBILITY
4.1. Neither the Service Provider nor its subcontractors shall be liable
towards the Beneficiary for the damage suffered by the latter as the
result of the Beneficiary's non-compliance with the advice provided by
the Personnel.
4.2. In no event shall either the Service Provider or its subcontractors be
liable for any loss, damage, cost or expense arising in any way from or
connected with negligence or neglect, fraudulent acts or omissions,
misrepresentations or willful default by the Beneficiary, its employees
and/or any other related entities or other providers.
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5. PAYMENT
5.1. For the purposes of this Agreement, the Beneficiary shall pay, in
consideration of the Services provided under Sections 2.1. and/or 2.2.
hereof by the Service Provider, the Service Fee computed as shown
below.
5.2. The Services shall be billed to the Beneficiary at the Service
Provider's costs and expenses incurred with respect to such Services
provided under Sections 2.1. and/or 2.2. hereof, taking into account
only the employee costs or expenses which are directly and/or
indirectly related to the Services performed, plus the xxxx-up referred
to under Section 5.7 herein.
5.3. The costs and expenses directly and indirectly related to the Services
performed, as referred to under Section 5.2. above, include without
being limited to:
5.3.1. Labour costs, consultant fees and expenses incurred by the
Service Provider in connection with the Services;
5.3.2. All other reasonable costs (i.e. travel, accommodation, meals,
conferences, business training, administrative and any other
miscellaneous expenses) incurred by the Service Provider and
directly or indirectly related to the provision of the
Services.
5.4. The estimated annual costs shall be submitted for approval to the
Beneficiary at the commencement of each fiscal year in the form of an
annual budget. The projections of the estimated annual cost shall be
based on the monthly cost multiplied by the expected number of months
of service. The estimated annual costs shall cover the minimum amount
of Services provided under Sections 2.1. and/or 2.2. hereof needed by
the Beneficiary throughout a business year and which are to be rendered
by the Service Provider under this Agreement. Services in addition to
the scope budgeted hereunder shall be rendered by the Service Provider
upon the Beneficiary's request and the adjustment regarding these
Services shall be performed in accordance with Section 5.5 below.
5.5. If there are any differences between the projections of the estimated
total costs and the costs actually incurred directly or indirectly by
the Service Provider in relation to the Services provided under
Sections 2.1. and/or 2.2. hereof, the difference shall be invoiced by
the Service Provider at the end of the year only if approved by the
Beneficiary and if it is properly documented.
5.6. In addition to these costs set forth under Section 5.3 above, the
Service Provider may add a profit xxxx-up of not exceeding 10% (ten
percent) on all related costs incurred internally in connection with
Services rendered directly by the Service Provider, but not on
disbursement for Services provided by third party subcontractors
5.7. The value of Services shall not include any related VAT and other
indirect tax.
5.8. All payments to be made by the Beneficiary hereunder shall be made
without set-off or counterclaims. If any deduction is required by law
to be made from a
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payment hereunder, by way of tax, all such deductions shall be executed
out of the amount of Service Fee as stipulated herein.
5.9. All payments made by the Beneficiary hereunder shall be made under the
invoice issued by the Service Provider in consideration of each amount
owed by the Beneficiary in return for the Services effectively
rendered. The invoice may state the location where the Services were
effectively rendered.
5.10. Payment of each invoice issued by the Service Provider shall be made by
the Beneficiary within 60 (sixty) business days since receiving the
Service Provider's invoice.
5.11. Any overdue payment shall bear interest at the twelve months LIBOR rate
as published on the 31 December of the preceding year plus 4.5% per
annum, such interest starting to accrue on the 61st (sixty first) day
following the date of receipt of the invoice.
5.12. The Service Provider shall keep true and accurate books of accounts and
records relating to its costs and expenses. Based on these records and
the books of account of the Service Provider, the Service Provider
shall prepare and submit to the Beneficiary invoices on the Service(s)
rendered for each assignment, indicating the categories of Services
rendered thereunder.
5.13. The Beneficiary shall obtain official receipts for any taxes paid on
behalf of the Service Provider and/or the latter subcontractors and/or
their Personnel in Romania and provide such receipts to the Service
Provider. Also, the Beneficiary shall obtain any official statement
and/or certificate according to the tax regulations applicable in the
Beneficiary's state. The Party obtaining any such official statement
and/or certificate, shall make them available to the Service Provider
taking into consideration for these purposes the domestic requirements
provided for in the tax law applicable in the Service Provider's state,
according to the information diligently provided in this respect by the
Service Provider.
5.14. The Beneficiary shall be entitled to obtain and shall keep appropriate
records and documentation of the Services rendered by the Service
Provider or by subcontractors. Such records should enable the
Beneficiary to examine and verify invoices issued by the Service
Provider.
5.15. None of the Services provided under Sections 2.1. and/or 2.2. hereof
and rendered hereunder are covered by any warranty, provided that they
are not accessory to any license, assignment of copyright or any other
kind or agreement and are not required by the Romanian law or by the
commercial practice in use for this specific type of Service Agreements
to be subject to specific representations or warranties.
Notwithstanding the above, the Service Provider warrants that the
Personnel have the requisite education, training and skills necessary
to perform the Services hereunder in a professional manner.
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6. NON-COMPETITION
Throughout the term of this Agreement, neither the Service Provider,
its subcontractors nor any individuals assigned hereunder to the
Beneficiary shall not directly or indirectly, render Services as
defined hereunder to a competitor of the Beneficiary in the latter's
state. The Service Provider undertakes to introduce a substantially
similar non-competition clause in its contracts concluded with the
subcontractors.
7. PERMITS AND APPROVALS
7.1. All regulations regarding work permits and/or any other approvals,
authorizations and/or notifications which are required to be obtained
and/or submitted in the Beneficiary's or the Beneficiary's customer's
state shall be observed by the Beneficiary who shall duly inform the
Service Provider, in due time, about all information and/or documents
to be made available by the Service Provider and/or its subcontractors
and/or the Personnel for the purposes of observing such regulations.
The obligation to notify the Service Provider in due time about the
documents and/or the information referred to above shall be due no
later than the 10th (tenth) day from the approval of the Staffing
Authorization Form.
7.2. The Beneficiary shall assist the employees throughout the procedures
undertaken in order to obtain the work permits and/or any other
approvals and/or authorizations whatsoever required by under the
relevant regulations, to be obtained by the foreign Personnel in the
Beneficiary's or the Beneficiary's customer's state.
7.3. The Beneficiary shall keep the Service Provider harmless in case of any
delay caused by the Beneficiary's failure to notify the Service
Provider in due time about the notification referred to under Section
7.1 above. The Service Provider and the Personnel shall be exonerated
from any liability arising from any delay incurred in the Work Schedule
agreed upon by Personnel, the Service Provider and the Beneficiary,
caused by the failure to notify the Service Provider and / or its
subcontractors as well as by the failure or by the inappropriate
assistance with the obtaining of any work permits and/or other
approvals and/or authorizations whatsoever.
8. CONFIDENTIALITY
8.1. Either Party shall keep all information held on the basis of this
Agreement confidential. Either Party shall not disclose or disseminate
the same to any third party without the other Party's prior written
approval.
8.2. The obligations of this Section shall survive the termination or
cancellation of this Agreement for any cause, for a period of 5 (five)
years from the termination or cancellation hereof.
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8.3. The obligations of this Section shall not apply to the information that
either Party can demonstrate:
- is wholly independently developed by the Party demonstrating
this; or
- is known or that becomes known to the general public without
breach of this Agreement by the demonstrating Party; or
- was known to the demonstrating Party without confidential
limitation at the time of disclosure by the other Party hereto
as evidenced by documentation in the demonstrating Party's
possession; or
- is approved for release by written authorization of the other
Party, but only to the extent of and subject to such
conditions as may be imposed in such written authorization; or
- is disclosed in response to a valid order to a court,
regulatory agents, or other governmental body in the territory
or any political subdivision thereof, but only to the extent
and for the purposes stated in such order; provided, however,
that demonstrating Party shall first notify the other Party in
writing of the order and cooperate with the other Party if the
other Party desires to seek an appropriate protective order;
or
- is received rightfully and without confidential limitation by
the demonstrating Party from a third party.
8.4. Notwithstanding anything to the contrary under this Agreement, the
Beneficiary is not granted with the right to use any know-how belonging
to the Service Provider and/or to the latter subcontractors which shall
not be disclosed to the Beneficiary provided that all the Services
hereunder are directly and exclusively rendered by the Service Provider
and/or by the Personnel hired by the latter subcontractors and do not
imply any training of the Beneficiary's staff.
9. ASSIGNMENTS AND SUCCESSORS
This Agreement may not be assigned by the Parties hereto, unless
provided otherwise in the Agreement or approved in writing by the other
Party hereto. This Agreement shall be binding on and inure to the
benefit of the Parties hereto and their successors.
10. FORCE MAJEURE
10.1. In the event that any of the Parties hereto shall be unable to perform
any of its obligations hereunder, the Party referred to above shall be
under no liability to the other Party in respect of anything which may
constitute breach of this Agreement arising by reason of force majeure,
namely, circumstances beyond the control of the Party concerned, which
shall include (but shall not be limited to) acts of God, perils of the
sea or air, fire, flood, drought, explosion, sabotage, embargo, riot,
civil commotion, including acts of local government and parliamentary
authority; disputes of whatever nature and for whatever
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cause arising including (but without prejudice to the generality of the
foregoing) overtime bars, strikes and lockouts and whether between
either of all of its employees and/or between any two or more groups of
employees (and whether of either of the parties hereto or any other
employer) (a "Force Majeure Event").
10.2. The Party who has been so affected shall immediately give notice to the
other Party and shall do everything possible to resume performance.
Upon receipt of such notice by the other Party, all obligations under
this Agreement shall be immediately suspended. If the period of
non-performance exceeds [thirty (30) calendar days] from the receipt of
notice regarding the Force Majeure Event, the Party whose ability to
perform has not been so affected may terminate this Agreement by giving
written notice to the other Party, the termination operating by effect
of law, not being necessary to follow any legal proceeding.
11. DURATION AND TERMINATION
11.1. This Agreement is applicable starting with 1 January 2002 and it is
concluded for an unlimited period of time.
11.2. This Agreement may be terminated by either Party upon [5 (five) working
days] written notice with immediate effect to the other, without any
prior formality and no Court intervention being required, in the event
of any of the following: (i) admitted insolvency, (ii) institution of
voluntary or judicial proceedings in bankruptcy, insolvency, moratorium
or for a receivership, or for a winding-up or for the dissolution of
the other Party. Notwithstanding the above, the Service Provider cannot
terminate this Agreement based on this Section, if the non-payment by
the Beneficiary is justified by the Service Provider's failure to
perform the Services as described under this Agreement.
11.3. This Agreement may be terminated by either Party upon 3 (three) months
prior written notice, without any prior formality and no Court
intervention being required.
11.4. Each Party has the right to terminate this Agreement if the other Party
materially breaches or is in default of any obligation hereunder which
default is incapable of cure, or which, being capable of cure, has not
been cured within [thirty (30) calendar days] after receipt of written
notice of such default (or such additional cure period as the
non-defaulting Party may authorize). The Parties shall cooperate in
curing any such breach within this time period. The non-breaching Party
shall send a termination notice to the other Party. The termination
shall occur by effect of law, upon sending the termination notice, not
being necessary to follow any legal proceeding.
11.5. Upon termination of this Agreement, (i) all indebtedness of the
Beneficiary to the Service Provider shall become immediately due and
payable, (ii) the Service Provider or the Service Provider's
subcontractors shall immediately
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return to the Beneficiary all the strategies and business plans and any
other information being in a material form provided by the Beneficiary
or its affiliated companies and being in the possession of the Service
Provider or the Service Provider's subcontractors; and (iii) all other
outstanding and unfulfilled obligations or liabilities prior to the
termination shall be completely fulfilled by the termination of this
Agreement.
12. HEADINGS
The headings of the Sections hereof are inserted for convenience of
reference only and are not intended to be part of or to affect the
meaning or interpretation of any of these terms and conditions of this
Agreement.
13. SEVERABILITY
In the event that any of these terms, conditions or provisions shall be
determined invalid, unlawful or unenforceable to any extent such term,
condition, or provision shall be severed from the remaining terms,
conditions and provisions which shall continue to be valid to the
fullest extent permitted by law.
14. NOTICES
Any notice to be given by either Party to the other may be sent by
recorded delivery to the address of the other Party as appearing herein
or such other address as such Party may from time to time have
communicated to the other in writing.
15. GOVERNING LAW AND DISPUTES RESOLUTION
15.1. This Agreement shall be governed by and interpreted and construed in
accordance with the laws of the Netherlands.
15.2. The Parties shall attempt to resolve any dispute under this Agreement
amicably by mutual agreement. Any such dispute which cannot be resolved
in accordance with the Rules of Conciliation and Arbitration of the
London Court of International Arbitration, which rules are deemed to be
incorporated by reference into this section. The tribunal shall consist
of one arbitrator who shall, in the absence of agreement of the
Parties, be appointed by the London Court of International Arbitration.
The place of arbitration shall be London. The language of the
arbitration shall be in English. The tribunal shall give a written
record of the award and reasons therefor.
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16. LANGUAGE OF THIS AGREEMENT
This Agreement has been executed in the English language.
This Agreement has been duly signed and approved by Parties, today,
..................., in 2 original copies, one for each Party hereto; each of the
copies shall be deemed an original and all of which shall constitute one and the
same instrument.
For The Service Provider,
_________________________
Xxxxx Xxxxxx, Director
For The Beneficiary,
_________________________
Xxxx Xxx Xxxxxxxxxx, Director
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APPENDIX A
SERVICE REQUEST
TO: ___________________ (the Service Provider)
Attn: [Director Human Resources]
Address
Tel.:
Fax:
FROM: ______________ (the Beneficiary)
Address:
Tel.:
Fax:
RE: SERVICES REQUESTED
In accordance with the Service Agreement dated as of _____________, concluded
between ClearWave Services and ClearWave (the "AGREEMENT"), the Beneficiary
hereby requests that the Service Provider provides the Services/ personnel to
the project identified herein upon further receipt of Staffing Authorization
Form(s) for the following personnel assignment(s). This Service Request shall be
governed by the terms and conditions of the Agreement.
PROJECT DESCRIPTION:
PROJECT LOCATION:
PROJECT DURATION:
PROJECT CONTACT:
ANTICIPATED PERSONNEL REQUIRED:
By: ___________________________________
Name:____________________________________
Title: Personnel Director of ________________
Dated _______________________________
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APPENDIX B
STAFFING AUTHORIZATION FORM
FROM: ___________________ (the Service Provider)
Attn: Director of Human Resources
Address
Tel.:
Fax:
TO: ______________ (the Beneficiary)
Address
Tel.:
Fax:
RE: Staffing Authorization
In accordance with the Service Agreement dated as of ____________,
concluded between ClearWave Services and ClearWave (the "AGREEMENT"),
the Beneficiary has requested that the Service Provider provide
personnel to work on the Beneficiary's mobile telephony operations.
This Staffing Authorization Form shall be governed by the terms and
conditions of the Agreement.
NAME:
PROJECT(s):
POSITION:
REQUIRED REPORT BY DATE:
REPORT TO (PROJECT DIRECTOR, NAME AND PHONE):
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