USA INTELLECTUAL PROPERTY LICENCE AGREEMENT
THIS AGREEMENT is made on October 12, 1998
BETWEEN
1. OZEMAIL INTERLINE PTY LIMITED (ACN 078 742 891) of ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
("OZI").
2. TELTRAN INTERNATIONAL GROUP, LTD. of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Teltran")
BACKGROUND
A. OZI has acquired the System.
B. OZI is seeking service providers to operate a service using the System
in other countries and to join with it in providing a worldwide service
comprised of interconnected Systems.
C. Teltran has applied to become a service provider in respect of the
System and OZI has agreed to admit it on the terms of this Agreement.
D. Under that System, a potential user in a particular region uses the
Node Hardware installed on his site to transmit data. Teltran notifies
OZI of the intended destination of the data. OZI provides routing
information sufficient to enable Teltran to route the data over IP
Networks (including the Internet) to a Participant (as defined below)
in the distant location who receives the data to be processed further.
The Participant facilitating the data termination may be Teltran (eg
intra-Territory data transfer). Subject to the terms of this Agreement,
Teltran must terminate data which is routed to it from Participants.
E. The parties have entered into this Agreement to record their
arrangement in relation to the intellectual Property of the System.
F. Simultaneously herewith the parties will enter into the
Interconnectivity and Support Agreement which records their
arrangements in relation to the operation of a service using the
System.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 Unless the context otherwise requires:
Agreement means this agreement and all schedules attached to this
Agreement as amended from time to time;
Associate means, with reference to a specified Person, a Person who
directly, or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, that Person;
Call means data transmitted and received by using the VIN Hardware and
the service.
Closed Group means a group as defined in clause 1 of the
Interconnectivity and Support Agreement;
Confidential Information means all information passing from one Party
to the other Party relating to the business of the disclosing Party or
any other Person who has contracted with OZI to terminate and originate
Calls, including but not limited to trade secrets, technology,
inventions (whether patentable or not), drawings, know-how, techniques,
source and object code, business and marketing plans and projections,
arrangements and agreements with third parties, customer information
and customer information proprietary to customers, formulae, suppliers,
customer lists, concepts not reduced to material form, designs, plans,
and models but excludes information:
(a) which is in or becomes part of the public domain other than
through breach of this Agreement;
(b) which the receiving Party can prove by contemporaneous written
documentation was already rightfully known to it at the time
of disclosure by the disclosing Party or its representatives;
(c) which the receiving Party rightfully acquires from a third
party entitled to disclose it free of obligations of
confidentiality;
(d) which the receiving Party is obliged by law to disclose
provided that reasonable prior notice is given to the
disclosing Party;
Customer means a Person who is provided with a personal identification
number by a Participant, or who is otherwise authorised by a
Participant to make Calls using the Service;
Dollar and $ means a United States Dollar;
Documentation means all system manuals and user manuals provided by OZI
under this Agreement.
Documentation includes the Operations Manual;
Intellectual Property means all intellectual property rights throughout
the world including but not limited to patent and patentable rights
(including the right to apply for patents), confidential information,
trade secrets, trade marks, circuit layout rights, know how and
approvals of any nature and copyright;
Interconnectivity and Support Agreement means the agreement of that
name between the parties on the date of this Agreement;
Internet means any combination of interconnected Systems, including
Internet, intranet or extranet, used by OZI and Participants for the
delivery of the Service including all existing protocols (such as ATM,
frame relay, TCP/IP, voice IP, fax IP) and all new and/or modified
protocols which may be developed and/or implemented during the Term;
Licensed Rights means the licences and rights granted to Teltran
pursuant to clause 2;
Network means any packet switched network, including the Internet and
networks based on ATM or frame relay;
VIN Hardware means any hardware set out in the Operations Manual as
necessary for the carriage or routing of Calls or of particular types
of Calls between Participants and includes all or any part of the
installations known as FINs and VINs;
Operations Manual means the documents referred to in Schedule 1 of the
Interconnectivity and Support Agreement as amended from time to time
pursuant to the terms of that agreement;
Origination Tariff means the tariff set from time to time in accordance
with clause 11 and Schedule 3 Part B;
OZI Software means the software set out in Schedule 2 in object code
format as modified by OZI from time to time and otherwise as set out in
this Agreement;
Participant means any of OZI, Teltran and other Persons who have
contracted with OZI or an affiliate to terminate and originate Calls
(including Resellers appointed by other affiliates) and the
Participants means all those Participants;
Party means either Teltran or OZI and Parties means both of them;
Person includes an individual, company, corporation, partnership,
government or government agency, authority or entity however designated
or constituted;
PSTN means public switched telephone network;
Reseller means a Reseller appointed pursuant to clause 7 of the
Interconnectivity and Support Agreement;
Service means the routing and carriage of Calls from origination to
termination across a Network as contemplated by this agreement, or, as
the context requires, that part of the Service for which OZI alone is
responsible;
Sublicensee means a sublicensee of Teltran appointed in accordance with
the terms of this Agreement;
System means a combination of specialised hardware and software modules
to be provided by OZI to Teltran under this Agreement and/or the
Interconnectivity and Support Agreement, which, when used in concert
with each other, will facilitate Calls to be originated, carried,
routed and Terminated via Networks;
Term means the period from the date of this Agreement until its expiry
or other termination;
Termination in relation to a Call means that part of the Service which
involves attempting to secure a connection between the Node Hardware to
which the Call has been routed and the Call's ultimate destination (via
a PSTN if applicable) and carrying that Call in its entirety between
those two points once that connection is established. To Terminate a
Call has a corresponding meaning.
Termination Point, in relation to a Call, means the Call's ultimate
dialled destination; and
Territory means the area set out in Schedule 1, as amended by written
agreement of the Parties from time to time
2. LICENCE
2.1 Subject to the terms and conditions of this Agreement and applicable
laws, OZI grants Teltran the non-exclusive licence in the Territory and
during the Term to:
(a) Use OZI Software including copying the same in the manner
permitted under this Agreement.
(b) Use, and reproduce as may be reasonably necessary for
training, archival, disaster recovery or other non-productive
purposes, the Documentation;
(c) Use, and reproduce any part of the Documentation as reasonably
necessary to comply with its obligations under this Agreement;
(d) Use the hardware configuration described in the Operations
Manual, solely for the purpose of performing its obligations
under this Agreement;
(e) Use any advertising or promotional material provided by OZI,
solely for the purposes of promoting the Service; and
(f) Use the Intellectual Property comprised in any of the items
referred to in paragraphs (a) to (e) as amended from time to
time for those purposes.
2.2 Subject to the terms and conditions of this Agreement OZI also grants
to Teltran non-exclusive licences during the Term but outside the
Territory to:
(a) Activate OZI Software located on VIN Hardware by other
Participants solely in the course of routing Calls in the
course of providing the Service in respect of Calls routed
from VIN Hardware in the Territory; and
(b) Use the Intellectual Property comprised in any of the items
referred to in paragraph (a) as amended from time to time for
those purposes.
2.3 Teltran expressly recognises that the Licensed Rights shall be subject
to the retention by OZI of the right to exercise and license within the
Territory and during the Term the rights to activate OZI Software
located on VIN Hardware solely in the course of routing Calls in the
course of providing the Service in respect of Calls routed from VIN
Hardware.
2.4 Save as provided in this Agreement and the Interconnectivity and
Support Agreement, Teltran has no rights to OZI Software, the VIN
Hardware, the Documentation or any Intellectual Property of OZI
relating to the same or the Service.
2.5 To the extent permitted by applicable law:
(a) Teltran undertakes not to reverse engineer, disassemble, or
decompile the object code version of OZI Software; and
(b) Teltran must not make or permit any adaptations or derivative
works based on OZI Software.
2.6 If and to the extent that Teltran develops any adaptations or
derivative works (whether or not permitted under this Agreement),
Teltran acknowledges and agrees that the whole of the Intellectual
Property in any adaptations or derivative works based on OZI Software
vest in OZI. Teltran undertakes to do all things necessary or desirable
to assign or otherwise vest or evidence or record the assignment or
vesting of those intellectual property rights in OZI. Teltran
undertakes to immediately advise OZI of the development of any such
adaptation or derivative works and to provide full details thereof
including source code to OZI.
3. SERVICE OBLIGATIONS
3.1 Teltran must:
(a) Ensure that all VIN Hardware and OZI Software used by it in
relation to the Service is operated in accordance with the
Operations Manual;
(b) Not operate any VIN Hardware outside the Territory except as
authorised by clauses 2 and 5 or clause 8 of the
Interconnectivity and Support Agreement; and
(c) Provide OZI with remote access to Teltran systems sufficient
for OZI to update any OZI Software and to enable OZI to verify
Teltran compliance with the technical aspects of its
obligations under this Agreement, and otherwise as set out in
the Operations Manual.
4. OZI RESPONSIBILITIES
4.1 OZI must calculate and notify Teltran of the payments required by
Teltran under this Agreement.
4.2 OZI shall, at the request of Teltran, use all reasonable efforts to
modify any billing reports to a form reasonably requested by Teltran on
the basis that Teltran shall pay to OZI an amount equal to the direct
cost plus 10 percent of carrying out such work.
4.3 OZI undertakes that it will retain rights to OZI Software and utilise
the same in the provision of the Service.
5. RIGHT TO SUBLICENSE
5.1 Teltran shall not sell, transfer, sublicense or otherwise dispose of
all or any of the Licensed Rights granted under this Agreement, without
the prior written consent of OZI, which may be withheld by OZI at its
absolute discretion.
5.2 Without limiting clause 5.1, Teltran may grant rights to Resellers
appointed pursuant to and subject to the conditions of the
Interconnectivity and Support Agreement, which involve limited use of
the Licensed Rights on such terms as may be approved by OZI in writing
in advance. Any attempt to grant such rights without the approval of
OZI shall be void.
6. ROYALTY BASED ON TIME
6.1 Under this Agreement:
(a) the calculation of all billing information for charges
incurred between OZI and Teltran may be carried out by OZI
and/or Teltran;
(b) OZI will charge Teltran a royalty in respect of Calls
originated in the Territory or from Closed Groups which
Teltran has sublicensed calculated in accordance with clause
6.2.
6.2 The Royalty Fee for a period is the total of:
(a) the aggregate of the fees payable for each Call originated in
the Territory which Teltran has sublicensed during that period
calculated in accordance with clause 1 of Schedule 3 using,
where appropriate, the time for each Call determined in
accordance with clause 6.3; and
(b) any additional amounts payable under clause 7 or otherwise in
accordance with the provisions of Schedule 3.
6.3 The time for each Call for the purposes of clause 6.2 is the time of
that Call (determined in minimum increments of six seconds rounded
down) commencing from the time the cessation of ringback from the
Termination Point and concluding at the time that the Call originator
hangs up.
7. ROYALTY NOT BASED ON TIME
7.1 Where and to the extent Teltran or any Reseller or any Associate of
Teltran or a Reseller receives or is credited with a payment or other
benefit arising out of or in respect of the use, licensing or provision
of the Licensed Rights and this Agreement does not otherwise set out a
percentage or amount payable by Teltran to OZI, Teltran shall pay to
OZI each month a fee calculated in accordance with clause 2 of Schedule
3 and any guidelines determined thereunder.
7.2 Teltran shall pay all amounts payable in accordance with this clause 7
within fourteen (14) days of the end of the month in which the payment
or benefit was obtained by Teltran.
7.3 Teltran shall promptly provide to OZI all information reasonably
necessary for the purposes of determining entitlements under this
clause 7.
8. GENERAL PROVISIONS RELATING TO PAYMENT OF ROYALTIES
8.1 Any payments due pursuant to this Agreement, including but not only
royalties payable under clauses 6 and 7, may be netted off (set off) by
OZI. Invoices will be for gross charges (i.e. not netted) and expressed
in US dollars.
8.2 OZI may invoice Teltran each calendar month in arrears. Invoices shall
be transmitted to Teltran by electronic mail or fax and are deemed
received at the time of transmission (unless a nondelivery message is
received). Invoices will not include all Call information which will be
posted to appropriate web pages so that it can be accessed by Teltran
in accordance with the Operations Manual.
8.3 Teltran must pay each invoice within fourteen (14) days of the date the
invoice is received or deemed to be received under clause 8.2.
8.4 All payments must be made by direct wire transfer into an account
nominated in writing with communication of payment.
8.5 All fees and other payments under this Agreement must be made in United
States dollars. Fees based on sales in other currencies are converted
to dollars at the official closing rate of exchange for that currency
in the U.S. market, as published in the Wall Street Journal (Western
Edition) on
the last day of the calendar month to which the fee related (or, if not
published on that day, the last day in that month that the Wall Street
Journal published that rate).
8.6 All amounts payable under this Agreement are exclusive of all
withholding tax, sales tax, value added tax, goods and services tax,
consumption tax, use tax or other taxes, customs, duties and similar
levies if any, payable in or to any jurisdiction or authority
whatsoever (other than taxes on the net income of the relevant Party).
Where any payment would otherwise require deduction of any tax, custom,
duty or levy the paying Party must pay a grossed up amount such that,
after any payment by the paying Party in respect of those taxes,
customs, duties or levies, the Party being paid receives the amount
calculated under this Agreement. The paying Party shall then promptly
pay all such withholdings and shall provide to the Party being paid
original receipts for such payment. The Party being paid shall refund
to the paying Party any grossed up amount to the extent that it
actually obtains relief, a benefit or credit including by offsetting
the amount received against tax otherwise payable in respect of the
withholdings paid by the paying Party promptly after receipt of that
relief, benefit or credit.
8.7 Overdue amounts accrue interest from the relevant due date until the
date that payment is received at the rate of the lesser of:
(a) the LIBOR Rate last quoted at the relevant due date plus four
percent (4%); and
(b) the greatest percentage permitted by applicable law.
9. RECORDS
9.1 Each of the Parties in their principal place of business must keep,
maintain and preserve during the term of this Agreement and for at
least four (4) years following the expiration of this Agreement,
complete and accurate records covering all transactions relating to
this Agreement including transaction logs.
9.2 Those records must be available for inspection by the other Party from
time to time for four (4) years following the expiration of the
agreement, during reasonable business hours and upon reasonable notice.
Each Party may make copies of any part of the other Party's records and
must ensure that the other Party is not hindered while inspecting or
copying their records.
9.3 OZI may elect to conduct an audit of Teltran in relation to its
compliance with this Agreement and the records it has kept in relation
to it twice in any year. OZI may elect to conduct an audit of Teltran
in relation to its compliance with the payment of Licence Fees under
this Agreement. The auditing Party must give the other Party at least
thirty (30) days' notice of any audit. For the purpose of conducting
any audit, the audited Party must, at its own expense provide the
auditing Party, or its independent auditors with: (a) access to its
premises and office space; and (b) all information, facilities,
services and accessories reasonably required by them.
9.4 If an audit indicates a material inaccuracy (being a variation of the
greater of five percent (5%) of net amounts payable between the parties
during the period covered by the audit and $50,000.00), the party
receiving the benefit of that inaccuracy must indemnify the other party
for the cost of the audit.
9.5 If an audit indicates an inaccuracy, the Party receiving the benefit of
that inaccuracy must pay to the other Party any outstanding amount
9.6 Without limiting the generality of clause 8.1 of the Interconnectivity
and Support Agreement, Teltran shall ensure that it has the right to
conduct an audit in similar terms to this clause in respect of any
Reseller and shall carry out such an audit where reasonably requested
by OZI on the basis that the costs of such audit shall be borne by OZI
if no material inaccuracy in relation to that Reseller (being a
variation of the greater of five percent (5%) or more of net amounts
payable between the Reseller and Teltran during the period covered by
the audit and $50,000) is indicated.
9.7 Teltran shall co-operate in accessing and making available all
information reasonably necessary from Resellers and Associates of
Resellers and Teltran to establish compliance by Resellers with the
Required Terms and compliance by Teltran under this Agreement.
10. DOCUMENTATION
10.1 OZI may amend any Documentation from time to time by written notice
to Teltran. OZI undertakes to make reasonable efforts to consult with
OZI in relation to any proposed changes to the Operations Manual and to
give at least thirty (30) days notice of such changes provided that
OZI may shorten this period if, in its opinion, amendments must be made
urgently to maintain the reputation, goodwill and/or integrity of the
Service. OZI undertakes to act reasonably in relation to changes to the
Operations Manual.
10.2 OZI shall supply updates to OZI Software and Documentation to reflect
the appointment of new Participants and otherwise as required.
10.3 OZI shall provide OZI Software and Documentation either by physical
delivery or by posting the same on Web pages which can be accessed by
Teltran or other agreed electronic transmission.
10.4 OZI is not required to prepare translations of the Documentation or OZI
Software into any language.
10.5 Teltran may prepare translations of Documentation or any part of it
into any other language. Teltran must ensure that all copyright and
other intellectual property rights in any translation it prepares is
vested in OZI. Teltran indemnifies OZI against any loss OZI suffers as
a result of any Person's use of Teltran translations.
11. TARIFFS
The Parties acknowledge that the Origination Tariff (and changes
thereto) shall be calculated in accordance with Schedule 3.
12. WARRANTIES
12.1 Each Party warrants that it has full power to enter into this
Agreement, perform its obligations under it and that the person signing
this Agreement on its behalf has been duly authorised and empowered to
enter into it. Each Party acknowledges that it has not been induced to
enter into this Agreement by any representations or statements, oral or
written, not expressly contained in it or expressly incorporated by
reference.
12.2 Teltran and OZI must not represent or warrant to any Person that the
Service or any software program or related documentation provided by or
on behalf of either Party:
(a) will meet any performance criteria or any Participant's or any
Customer's requirements except to the extent it is explicitly,
or by necessary implication, stated to meet them within the
Documentation;
(b) will be error free; or
(c) will not be interrupted by reason of defect in it, the general
nature of Internet communications or by reason of fault on the
part of any Participant.
12.3 The Parties acknowledge that because of the nature of the technology
and Networks, the Call quality of Calls transmitted over it may be less
than that from the normal use of the PSTN.
12.4 To the greatest extent possible under applicable law, each Party
expressly waives all representations, warranties or conditions not
specifically set out in this Agreement which may be available to the
other Party, including but not limited to implied representations,
warranties or conditions of merchantable quality or fitness for a
particular purpose and those arising by statute or otherwise in law or
from course of dealing or usage of trade.
12.5 Each party is responsible for the actions and omissions of its
employees and agents who cause damage to the other, whether through
fraud or otherwise. Each party indemnifies and holds the other party
harmless from any and all damages caused by such persons.
13. LIMITATION OF LIABILITY
13.1 The limitation of liability provisions of this Agreement:
(a) reflect an informed voluntary allocation of the risks (known
and unknown) that exist in connection with the provision of
goods and services under this Agreement by OZI including the
performance of the Service;
(b) take precedence over and apply notwithstanding any other
provisions of this Agreement; and
(c) form a material part of the agreement reached between the
Parties.
13.2 TO THE EXTENT PERMISSIBLE BY LAW, OZI HAS NO LIABILITY UNDER OR IN
RESPECT OF THIS AGREEMENT EXCEPT AS SET OUT IN IT OR IN THE
INTERCONNECTIVITY AND SUPPORT AGREEMENT.
14. TERM AND TERMINATION
14.1 This Agreement commences on the date of execution by the last of the
Parties and continues in effect for a period of three (3) years from
that date, unless otherwise terminated pursuant to the terms of this
Agreement.
14.3 This Agreement may be terminated:
(a) by Teltran, for a material breach of this Agreement by OZI, at
Teltran option, upon written notice if OZI has not cured the
breach within thirty (30) days after receiving written notice;
(b) by OZI, for a material breach of this Agreement by Teltran, at
OZI's option, upon written notice if Teltran has not cured a
material breach within thirty (30) days of receiving written
notice; and
(c) by either Party, upon the other Party coming under any form of
administration or relief relating to insolvency.
14.4 On termination and without prejudice to any other rights which the
Parties may have:
(a) each Party must immediately deliver to the other Party, the
other Party's Confidential Information then in its possession
or control, if any, and must deliver a certificate of an
officer of such Party attesting that all Confidential
Information has been returned;
(b) each Party must not make any further use of the other Party's
Confidential Information;
(c) each Party must immediately pay all sums owing to the other
under this Agreement or as they subsequently become due
hereunder; and
14.5 Clauses 2.4, 2.6, 9, 12, 13, 14, 15, 16, 17, 18 and 20 shall survive
any termination or expiration of this Agreement.
14.6 Within thirty (30) days of any termination or expiration of this
Agreement, Teltran must, at its cost, return to OZI or destroy all
copies of OZI Software (other than Software embedded in hardware), and
must not, and has no implied license to, in any way utilise OZI's
Intellectual Property Rights, PROVIDED THAT if the Agreement is
terminated as a result of a default of OZI, Teltran shall be allowed a
period of two (2) months' grace to comply with this clause.
15. CONFIDENTIALITY
15.1 Each Party may use the Confidential Information of a disclosing Party
only for the purposes of this Agreement and must keep confidential all
Confidential Information of each disclosing Party except to the extent
(if any) the recipient of any Confidential Information is required by
law to disclose the Confidential Information.
15.2 Either Party may disclose Confidential Information of the other Party
to those of its employees and agents who have a need to know the
Confidential Information for the purposes of this Agreement but only if
the employee or agent executes a confidentiality undertaking in a form
approved by the other Party, such approval not to be unreasonably
withheld.
15.3 This clause survives the termination of this Agreement.
16. OWNERSHIP OF PROPRIETARY RIGHTS
16.1 Teltran does not acquire any rights in, title to or interest in OZI
Software or related Documentation, except as explicitly set out in this
Agreement. Specifically, OZI does not grant Teltran rights to create
any translations, adaptations or derivative works of OZI Software
except as contained in this Agreement.
16.2 Teltran acknowledges that OZI may sell or otherwise dispose of all or
part of the technology underlying the Service or its rights to that
technology to a third party, and that nothing in this Agreement
prevents or restricts OZI from so doing.
17. INDEMNIFICATION
17.1 Teltran indemnifies OZI against any and all claims and liabilities,
including but not limited to reasonable legal fees, resulting from:
(a) any claim that would otherwise have been unsuccessful but for
Teltran modifications (not approved in writing by OZI) to the
Service; and
(b) any claim based upon Teltran or any Customer's use of the
Service otherwise than in accordance with this Agreement.
18. PUBLICITY
Teltran and OZI must cooperate regarding public relations activities,
including public announcements, joint press releases, and other
activities to be mutually agreed.
19. INTERDEPENDENCE WITH INTERCONNECTIVITY AND SUPPORT AGREEMENT
19.1 This Agreement shall have no force and effect unless and until the
Interconnectivity and Support Agreement becomes binding between the
parties.
19.2 Any default under the Interconnectivity and Support Agreement by
Teltran shall constitute a default under this Agreement by Teltran and
any default under the Interconnectivity and Support Agreement by OZI
shall be deemed to constitute a default under this Agreement by OZI.
19.3 Any circumstance justifying Teltran in terminating the
Interconnectivity and Support Agreement shall justify Teltran in
terminating this Agreement and any circumstance justifying OZI in
terminating the Interconnectivity and Support Agreement shall justify
OZI in terminating this Agreement.
20. GENERAL PROVISIONS
Co-operation
20.1 The Parties must co-operate with each other to fulfil the purpose of
this Agreement. Each Party must provide all reasonable assistance to
the other (except as between the Parties) in relation to the conduct of
any litigation related to this Agreement. The costs of that assistance
must be borne by the Party receiving the benefit of that litigation.
Notices
20.2 Any notice required for or permitted for this Agreement must be
delivered as follows with notice deemed given as indicated:
(a) in writing by personal delivery when delivered personally;
(b) in writing by overnight courier upon written verification of
receipt;
(c) by telecopy or fax transmission when confirmed by telecopier
or fax transmission report;
(d) in writing by certified or registered mail, return receipt
requested, upon verification of receipt; or
(e) by receipted electronic email to an email address of the other
Party nominated for the receipt of notices under this
Agreement.
All notices must be sent to the Parties at the addresses described
above or to any other address that the receiving Party notifies for the
purpose of notice in accordance with this clause.
Assignment
20.3 This Agreement is not assignable or transferable by Teltran except as
expressly set out herein, without the prior written consent of OZI,
which consent shall not be unreasonably withheld or delayed. Any
attempt to assign this Agreement without that consent is void. Teltran
shall not suffer or allow a change in control (without the prior
written consent of OZI, which consent shall not be unreasonably
withheld or delayed in any circumstance where an assignment of Teltran
interest in this Agreement to the Person acquiring control would not be
permitted under this Agreement.
Agency
20.4 Neither Party is an employee or agent of the other Party. In
particular, any work performed by OZI in connection with this Agreement
is performed by OZI as an independent contractor, and not as an
employee or agent of Teltran. Nothing contained in this Agreement will
be interpreted or construed as to characterise the relationship between
OZI and Teltran as a joint venture, partnership or franchise for any
purpose. Neither Party has the authority to, and neither Party shall,
make any representation, prepare documents or statements on behalf of,
or in the name of the other Party, give any warranties, accept any
orders, enter into a contract on behalf of the other Party, or obligate
the other Party in any manner, unless expressly authorised to so by
this Agreement or in writing by the other Party.
Waivers And Amendments
20.5 No failure to exercise, and no delay in exercising, on the part of
either Party, any privilege, any power or any rights under this
Agreement will operate as a waiver of them, nor will any single or
partial exercise of any right or power under this Agreement preclude
further exercise of any other right under it. Any waivers or amendments
are effective only if made in writing by non-pre-
printed agreements clearly understood by both Parties to be an
amendment or waiver and signed by a representative of the respective
Parties authorised to bind the Parties.
Severability
20.6 If any provision of this Agreement is held to be invalid or
unenforceable, then the remaining provisions shall continue in full
force and effect.
Consequence of Breach of the Other Party
20.7 If a Party breaches a term of this Agreement then to the extent that
such breach renders compliance with any obligation by the other Party
impossible, impractical or futile, the other Party shall be relieved
from compliance with that obligation unless and until the breach is
rectified.
Governing Law
20.8 This Agreement is governed by the laws in force in New South Wales.
Each of the Parties agree that the courts of New South Wales have
jurisdiction over the subject matter of this Agreement and constitute
the most convenient forum for hearing any proceedings arising out of
any dispute between the Parties.
20.9 Teltran hereby appoints [An Officer of the Company] of [Address] as its
agent for the service of all documents, notices and legal proceedings
and the service of all documents, notices and legal proceedings on
[Officer of the Company] will be deemed to be served on Teltran.
20.10 The application of the United Nations Convention for the International
Sale of Goods is expressly disclaimed.
20.11 The prevailing Party in any action to enforce this Agreement is
entitled to recover costs and expenses including, without limitation,
legal fees.
Force Majeure
20.12 An obligation of a Party under this Agreement is suspended during any
period in which it is unable to perform that obligation for any reason
beyond the reasonable control that Party or its Associates, including
but not limited to, acts of God, earthquake, labor disputes and
strikes, riots, war, governmental requirements and the actions or
omissions of the other Party (force majeure event). If the force
majeure event extends for more than twenty one (21) days and there is
an actual or threatened material disadvantage to either Party, it may,
at its option, terminate this Agreement.
Entire agreement
20.13 This Agreement including its Schedules constitutes the entire agreement
between the Parties with respect to its subject matter except as set
out herein. This Agreement supersedes, and the terms of this Agreement
govern any other prior or collateral agreements with respect to its
subject matter with the exception of the Telecommunications Services
Agreement (including Schedules a through d) executed between Teltran
and ▇▇▇ ▇▇ December 97 and any other subsequent agreements which may be
entered into regarding the current re-filing relationship between
Teltran and OZI. Any amendments to this Agreement must be in writing
and executed by an officer of the Parties.
20.14 This Agreement has precedence over the Documentation to the extent of
any inconsistency.
20.15 To the extent that any applicable law prohibits any provision of this
Agreement:
(a) that provision is to be read down to the extent necessary to
comply with that law; and
(b) the parties shall negotiate in good faith to modify this
Agreement in good faith in a manner reasonably appropriate to
meet with the requirements of any applicable law.
Teltran must keep OZI informed of any such laws and their effect.
20.16 To the extent this Agreement is inconsistent with Interconnectivity and
Support Agreement, the terms of the Interconnectivity and Support
Agreement shall prevail.
Executed by the Parties:
Teltran OZEMAIL INTERLINE PTY LIMITED
(ACN 078 742 891)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
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Title: President, and CEO Title: Director and CEO
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Date: 10/2/98 Date: 10/19/98
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