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EXHIBIT 10.17
XXXXXXXXXXXX.XXX
IP TELEPHONY GATEWAY PURCHASE AGREEMENT
This Purchase Agreement (hereinafter called the "Agreement") entered as of
February 15, 2000 between Hertford Enterprises L.L.C., Texas, USA (hereinafter
called "Customer") and Golden Xxxxxx.xxx of Miami, Florida, USA (hereinafter
called "Golden Access") establishes the terms and conditions under which Golden
Access will supply the IP Telephony Gateway (hereinafter called "Product") to
the Customer.
Golden Access agrees to sell the Product as follows:
1. Golden Access ViP Internet Telephony Gateway configuration
of:
o 4-Port System - $US 12,000.00
This system can be upgraded to an 8 port system for an
additional $US 4,000.00 at anytime during the term of this
Agreement.
2. Payment Terms are 25% downpayment upon signing of this
Agreement and 75% upon delivery by certified cheque, bank
transfer or an irrevocable Letter of Credit from a financial
institution acceptable to Golden Access.
3. Golden Access grants the Customer a personal, non-exclusive,
non-transferable license to use the IP Telephony Gateway
software solely for the operation of the Customer's IP
Telephone services to its subscribers. Under the terms of
this license, the Customer shall not:
o modify or copy the software
o reverse compile or reverse engineer all or any
portion of the software
o distribute, disclose or transferthe software to any
third party
4. Golden Access will provide remote product support on a
Mon.-Fri. (9am EST - 6pm EST) basis and access to new
software releases for a period of 1 year at no additional
charge to the Customer. The Customer will provide Golden
Access with all the necessary information and cooperation
required for its technical support personnel to remotely
access the system for maintenance and troubleshooting
purposes. These procedures are outlined in Appendix C,
attached hereto. If the Customer should request on-site
technical support, this will be provided at the prices and
terms listed in Appendix C.
5. Golden Access can offer annual extensions of the technical
support/software update package to the Customer and these are
available at the rates outlined in Appendix C.
6. Golden Access will provide one (1) set of all the necessary
technical documentation, including User Manuals, etc.
associated with the Product.
7. Golden Access will make available to the Customer, training
in the installation and operation of the Product with a
schedule and location to be agreed upon between both parties.
All travel and related expenses shall be borne by the
Customer. In the event that the Customer elects to have
Golden Access perform the initial installation as per
paragraph 8 below, and wants the training conducted during
the installation period, the Customer will be responsible for
any additional living expenses associated with said training.
8. Golden Access can provide On-site Installation at a rate of
$750 per day plus all travel and related expenses.
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XXXXXXXXXXXX.XXX
COMMERCIAL SERVICE AGREEMENT
This Commercial Service Agreement (hereinafter called the "Agreement") entered
as of February 15, 2000 between Hertford Enterprises L.L.C., Texas (hereinafter
called "Customer") and Golden Xxxxxx.xxx of Miami, Florida, USA (hereinafter
called "Golden Access") establishes the terms and conditions under which Golden
Access will provide international IP Telephony termination service (hereinafter
called "Service") to the Customer.
A. NATURE OF SERVICES
Golden Access will provide non-exclusive termination service for
international telephone traffic originating from the Customers' IP
Telephony Gateway purchased from Golden Access under the IP Telephony
Gateway Purchase Agreement. The destinations and rates offered are
outlined in Appendix B, attached hereto.
B. CUSTOMER OBLIGATIONS
Customer will be responsible to supply all the equipment and
connection services required to interface the IP Telephony Gateway to
the local PSTN network and the Internet. All associated costs are
borne solely by the Customer, including recurring connection charges,
throughout the term of this Agreement. Customer is solely responsible
for the all administrative and technical support aspects of their
subscribers, including billing and collection.
X. XXXXXX ACCESS OBLIGATIONS
Golden Access will provide remote technical support on a 24 x 7 basis
at no charge to the Customer. The Customer will provide Golden Access
with all the necessary information and cooperation required for its
technical support personnel to remotely access the system for
maintenance and troubleshooting purposes. These procedures are
outlined in Appendix C, attached hereto.
If the Customer should request additional on-site technical support,
this will be provided at the prices and terms listed in said Appendix
C.
In the event that a Service Interruption occurs and a resolution has
not been provided by Golden Access within 24 hours of the problem
being reported, the Customer may, at its discretion, invoke Clause
6.1 of the General Terms and Conditions herein. A Service Interruption
will be deemed to have occurred only if the entire service becomes
unusable to the Customer as a result of failure of Golden Access's
Product used to provide the Service and only where the interruption is
not the result of a) the negligence or acts of the Customer or its
agents; b) the failure or malfunction of non-Golden Access equipment
or systems not provided by Golden Access; c) circumstances or causes
beyond the control of Golden Access; or d) a service interruption
caused by scheduled service maintenance, alteration or implementation.
The foregoing states the Customer's sole remedy for service
interruption under the Agreement, and in no event shall Golden Access
be liable for any indirect, consequential or special loss or damage
suffered which, for the avoidance of doubt, shall include loss of
profits and contracts.
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D. BILLING
In consideration of the services rendered by Golden Access, Customer
shall pay termination fees as outlined in Appendix B which may be
adjusted from time to time at the discretion of Golden Access and the
new rate table shall be effective upon 15 days notice, unless interim
rate changes are necessary to improve Quality of Service.
In order to secure payment for these services, the Customer agree to
deposit prior to the performance of any services an amount of
$2,500.00 to cover one times the estimated average monthly sales
volume. This deposit shall be either as Cash, Certified Cheque, Bank
transfer and/or an irrevocable Letter of Credit from a financial
institution acceptable to Golden Access. Said deposit shall be subject
to offset by Golden Access in the event payment of the outstanding
account balance is not made after 7 days from receipt of invoice.
Golden Access reserves the right to review the deposit from time to
time and adjust the required amount necessary based upon invoiced
amounts for previous billing periods.
A bi-weekly financial settlement will take place between Golden Access
and the Customer. This settlement will be based upon the CDR (Call
Detail Records) produced by the Service which indicate the necessary
accounting information required to calculate the amount due. Golden
Access will prepare the invoice and a settlement report detailing each
transaction from the CDRs collected by its Network Control Center.
Should there be any discrepancies in the call detail reports, the
items in question shall be deferred to a further review process. These
discrepancies shall in no way delay the settlement process as a whole
and will be treated as a separate deficiency to be reconciled within a
period of 30 days. A 10% discount on the rates in Appendix B will be
offered to the Customer for the first 3 months of this Agreement,
after which time, the regular rates will apply unless there is a
mutual agreement to extend the discount. The discount will be applied
against the total due for each billing period.
E. TERM OF AGREEMENT
The initial term of this Agreement is for a period of two (2) years
and shall be extended on an annual basis thereafter unless terminated
under the terms of Clause 6 of the General Terms and Conditions of
this Agreement.
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GENERAL TERMS AND CONDITIONS
CLAUSE 1 - COPYRIGHT AND CONFIDENTIALITY
1.1 Each Party agrees to maintain in strict confidence all plans, designs,
drawings, trade secrets and other proprietary information of the other
Party which is disclosed pursuant to this Agreement.
1.2 Golden Access retains title to all portions, excluding third party
licenses, of the software associated with the Product. A
Non-Disclosure Agreement, as per Appendix A, shall be signed by both
Parties.
CLAUSE 2 - PRICES/PAYMENT TERMS
2.1 All prices are FOB Miami, FLA., USA
2.2 Golden Access reserves the right to charge interest on all delinquent
payments at an annualized rate of 2 percentage points above the
commercial rate as listed by its banking institution.
2.3 The Golden Access prices do not include the cost to Golden Access or
its employees of any taxes, duties, levies or other like charges
payable by them or any of them under the laws or regulations in force
in countries other than the United States and to the extent that such
taxes, duties, levies and other like charges are required to be paid,
these shall be borne solely by the Customer.
CLAUSE 3 - WARRANTY
3.1 Golden Access warrants that the Product shall be free of defects and
perform in accordance with Golden Access's specifications for a period
of ninety (90) days from delivery to the Customer. Golden Access's
sole obligation under this warranty shall be to provide remote
Technical Support as outlined in Appendix A in an effort to remedy the
defect. The warranties in this article will be voided if the Product is
modified in any way by the Customer and/or its agents without written
authorization from Golden Access. GOLDEN ACCESS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OF IMPLIED, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CLAUSE 4 - LIABILITY
4.1 Under no circumstances shall Golden Access, its employees or
contractors be liable for any direct, indirect, incidental, special,
punitive or consequential damages that may result in any way from the
negligence or acts of the Customer or its agents, the failure or
malfunction of non-Golden Access equipment, the Customer's (or
Customer's authorized users) use of, or inability to use the Product
or any part thereof, resulting from errors, omissions, interruptions,
delays in operation or transmission, or any failure of performance of
the Internet and/or PSTN networks.
4.2 Neither Golden Access or its third party licensors will be liable for
indirect, incidental, special or consequential damages including but
not limited to lost data or lost profits, however arising, even if it
has been advised of the possibility of such damages. The liability of
Golden Access and its third party licensors for damages under this
agreement shall in no event exceed the amount paid by the Customer to
Golden Access under this Agreement for the Product as to which the
claim arose.
CLAUSE 5 - FORCE MAJEURE
5.1 GOLDEN ACCESS shall not be liable for any delay or failure in
performance of any part of this Agreement to the extent such delay or
failure is caused by an event of Force Majeure, including but not
limited to, fire, flood, explosion, accident, war, strike, embargo,
government requirement, civil or military authority, Act of God,
inability to secure materials, labour or transportation, acts of
omissions of common carrier or
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warehouseman, or any other causes beyond their reasonable control. Any
such delay or failure shall suspend the Agreement until the Force
Majeure condition ceases and the Term shall be extended by the length
of the suspension.
CLAUSE 6 - SUSPENSION/TERMINATION
6.1 Either Party may, by written notice to the other Party, suspend or
terminate its obligations under the Agreement
a) in the event that either Party shall have failed to pay or
authorize payment of any sum to the other Party when due
under the Agreement; or
b) in the event that either Party is in breach of the Agreement
and shall fail after receiving not less than thirty (30) days
written notice to take effective steps to remedy such breach;
or
c) in the event that either Party goes into liquidation except
for the purposes of corporate re-organization or otherwise
ceases trading.
Any suspension or termination as a result of the foregoing, does not
absolve the Customer from its obligations to pay any outstanding
invoices due under the Agreement.
CLAUSE 7 - EFFECTIVE DATE OF AGREEMENT
7.1 This Agreement shall become effective on that date which it is duly
initialed, signed and dated by authorized representatives of Golden
Access and the Customer. Neither Party may assign, transfer the whole
or any part of this Agreement to anyone without written consent by the
other Party.
CLAUSE 8 - ARBITRATION AND JURISDICTION
8.1 All differences and disputes between the Parties arising from this
Agreement which cannot be settled by mutual agreement shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce (ICC). The arbitration proceeding
shall take place at Miami, Florida and the language of the arbitration
proceeding, the award and all documents filed or submitted in
connection therewith shall be in English.
8.2 This Agreement shall be governed, construed and interpreted in
accordance with the laws of the State of Florida, USA.
8.3 All correspondence relevant to the performance of this Agreement shall
be in English and when given to Golden Access, should be addressed to:
Golden Xxxxxx.xxx
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XXX 00000
and when given to the Customer, should be addressed to:
Hertford Enterprises LLC
000 Xxxxxxx Xx., Xxxxx X
Xxxxxxxxx, Xxxxx 00000
This Agreement supersedes all other prior discussions and negotiations between
the Customer and Golden Access and sets forth the understanding between both
Parties as to the intent of this Agreement. It may be modified in writing only,
provided it is signed by a duly authorized representative of both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date herein;
Golden Xxxxxx.xxx Customer
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APPENDIX A
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This agreement is entered into as of January 12, 2000 between Hertford
Enterprises LLC and Golden Xxxxxx.xxx, WHEREAS, each entity executing this
agreement (hereinafter "Party") agrees that for the purpose of evaluating a
potential business relationship, the parties will disclose and receive
information under the terms and conditions specified below:
NOW THEREFORE, the parties hereby agree as follows:
1. All communications or data, in any form, which are disclosed by one
Party or any of its subsidiary, parent or associate companies
("Disclosing Party") to the other Party or any of its subsidiary,
parent or associate companies ("Receiving Party") and which are to be
protected hereunder against unrestricted disclosure or competitive use
by the Receiving Party shall be deemed to be "Confidential
Information".
2. All Confidential Information, if in writing or other tangible form,
shall be labeled as "Confidential" at the time of its delivery, and,
if oral, shall be identified as "confidential" prior to disclosure.
3. Confidential Information of the Disclosing Party shall be treated as
confidential and safeguarded hereunder by the Receiving Party for a
period of two (2) years from the date of disclosure unless earlier
waived in writing by the Disclosing Party.
4. The Receiving Party agrees that (a) any Confidential Information
disclosed hereunder shall be used by the Receiving Party solely for
the purpose set forth above and (b) except as may be required by
applicable law or legal process, the Receiving party will not disclose
or disseminate such Confidential Information to anyone, except to
those employees (including employees of its parent, subsidiaries and
affiliates) and professional advisers who have the need to know such
Confidential Information for the purpose for which it is disclosed,
unless and until such time as such Confidential Information:
a) is available generally to the public, other than as a result
of a breach of this Agreement; or,
b) is disclosed lawfully to the Receiving Party by a third party
who is free lawfully to disclose the same; or,
c) is developed independently by the Receiving Party; or,
d) The applicable period of confidentiality pursuant to
paragraph 3 has ended.
e) is already in the possession of the Receiving Party and is
subject to an existing agreement of confidence between the
parties.
6. The Receiving Party shall use reasonable safeguards against the
unauthorized disclosure of confidential and proprietary information
and shall advise all of its employees and professional advisers having
access to Confidential Information of the obligations hereunder.
7. Upon expiration of the period of confidentiality, or sooner upon
written request of the Disclosing Party, all Confidential Information
in the possession of the Receiving Party shall be returned to the
Disclosing Party or destroyed, at the option and instruction of the
Disclosing Party.
8. It is understood that this Agreement is not intended to, and does not,
obligate either Party to enter into any further agreements or to
proceed with any relationship or other transaction.
9. This agreement shall be governed by and construed in accordance with
the laws of the State of Florida, USA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date herein.
Company: Hertford Enterprises LLC Golden Xxxxxx.xxx
Signature:
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Name:
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APPENDIX B
GOLDEN ACCESS RATE TABLE ATTACHED
1.11.1999 HERTFORD ENTERPRISES LLC RATES
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