USA INTERCONNECTIVITY AND SUPPORT AGREEMENT
THIS AGREEMENT is made on October 12, 1998
BETWEEN OZEMAIL INTERLINE PTY LIMITED (ACN 078 742 891) of Xxxxx 0,
XxXxxxx Xxxxxx, 00 Xxxxxxx Xxxxxx, Xx Xxxxxxxx, Xxx Xxxxx Xxxxx,
Xxxxxxxxx ("OZI").
AND TELTRAN INTERNATIONAL GROUP, LTD of Xxx Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000 ("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 VIN
Hardware Teltran installed in the Territory 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 and facilitates the data Termination.
E. The Parties have entered into this Agreement to record their agreement
in respect of operating a service using the System.
F. Simultaneous herewith the parties will enter into the Licence Agreement
to record their agreement in respect of the intellectual property in
relation to 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 voice call data and/or fax transmitted and received by using
the VIN Hardware and the Service;
A Closed Group exists where the Service has been supplied for private
use by a Person and parties related to it. Guidelines will be issued by
OZI from time to time, principally for the internal routing of Calls
within the Closed Group and without allowing the public general access
to such a system for use as a public routing service in the ordinary
course of business;
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/or
originate Calls, including trade secrets, 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 known to it at the time of
disclosure by the disclosing Party or its representatives; or
(c) which the receiving Party acquires from a third party entitled
to disclose it free of obligations of confidentiality; or
(d) which the receiving Party is obliged by law to disclose
provided that reasonable prior
notice is given to the disclosing Party.
Control means, in relation to a body corporate, the power of a Person
directly or indirectly, to secure:
(a) by means of the holding of shares or the possession
of voting power (either at director or shareholder
level) in or in relation to that or any other body
corporate;
(b) by virtue of any powers conferred by the Articles of
Association or other document regulating that or any
other body corporate,
that the affairs of the first mentioned body corporate are conducted
in accordance with the wishes of that Person;
Control Node means the controlling hardware and software which provides
information to the VIN Hardware through the Network for routing of
Calls and, in some cases, billing information.
Customer means a Person who is provided with a personal identifier
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 to be
provided by OZI under this Agreement. Documentation includes the
Operations Manual;
Intefrnet means any combination of interconnected Systems, including
Internet, intranet or extranet, used by the OZI and Participants for
the delivery of the Service including all existing protocols (such as
ATM, frame relay, TCP/IP, voice over IP) and all new and/or modified
protocols which may be developed and/or implemented during the Term;
Licence Agreement means the intellectual property licence agreement to
be entered into between OZI and Teltran on the date of this Agreement
substantially in the form attached as Schedule 4;
Licensed Rights means the licences and rights granted to Teltran
pursuant to the Licence Agreement;
Network means any packet switched network, including the Internet and
networks based on ATM or frame relay;
Operations Manual means the documents referred to in Schedule 1 as
amended from time to time pursuant to Clause 10;
OZI Software means the software licensed to Teltran pursuant to the
Licence Agreement as defined in that Agreement;
Reseller means any Person appointed by Teltran to promote the Service
in the Territory in accordance with Clause 7 of this Agreement;
Participant means any of OZI, Teltran and other Persons who have
contracted with OZI or an affiliate to terminate and originate Calls
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;
Port means a fully functional port on a VIN available for use as part
of the Service;
PSTN means public switched telephone network;
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;
Service Fee is the fee defined in clause 6;
System means a combination of VIN Hardware and OZI Software to be
provided by OZI to Teltran under this Agreement and/or the Licence
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 earlier termination;
Termination in relation to a Call means that part of the Service which
involves attempting to secure a connection between the VIN 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;
Termination Fee is defined in Clause 6.6;
Termination Tariff means the tariff for the Termination of Calls set
from time to time in accordance with Clause 3 of Schedule 6, the
current version of which is at Schedule 6;
Territory means the area set out in Schedule 2, as amended by written
agreement of the Parties from time to time; and
VIN Hardware means all or any part of the hardware set out in the
Operations Manual as necessary for the carriage or routing of Calls or
of particular types of Calls between Participants known as VINs.
1.2 Reference to:
(a) one gender includes the other genders;
(b) the singular includes the plural and vice versa;
(c) a Party includes the Party's executors, administrators,
successors and permitted assigns; and
(d) a statute, regulation or provision of a stature or regulation
("Statutory Provision") includes:
(1) that Statutory Provision as amended or re-enacted
from time to time; and
(2) a statute, regulation or provision enacted in
replacement of that Statutory Provision.
1.3 Headings are for convenience only and do not affect the interpretation,
or form part, of this Agreement.
1.4 "Including" and similar expressions are not words of limitation.
1.5 Where a word or expression is given a particular meaning, other parts
of speech and grammatical forms of that word or expression have a
corresponding meaning.
1.6 Schedule 3 sets out a broad overview of the operation of the Service.
Schedule 3 is indicative only and does not impose any obligations on
XXX.
0. THE SERVICE
2.1 OZI hereby appoints Teltran as a non-exclusive provider of the Service
in the Territory subject to the terms of this Agreement.
2.2 Teltran must:
(a) use all reasonable endeavours to rollout or cause a rollout of
the System in the Territory with reasonable diligence so as to
have and maintain the ability to Terminate and Originate Calls
to and from all points within the Territory accessible via any
PSTN within the Territory;
(b) ensure that all VIN Hardware and OZI Software used by it in
relation to the Service is operated in accordance with the
Operations Manual;
(c) use all reasonable endeavours to rollout or cause a rollout of
the System in the Territory with reasonable diligence so as to
have and maintain the ability to route and carry Calls from
and to any VIN Hardware operated by Teltran within the
Territory to the VIN Hardware operated by any Participant;
including the activation of prioritisation (except in the case
of store and forward messages) to the extent technologically
available, the establishment and maintenance of any internal
systems and any connection to the Internet such that in all
normal circumstances reasonable endeavours are taken to
achieve the following targets:
(i) propagation delay of the signal is less than 280
milliseconds, that being a round trip `Ping' between
any VIN POP within Teltran's network and the OZI Web
site `xxx.xxxxxxxxxxxx.xxxx.xxx, which is
geographically based in the USA;
(ii) variation in propagation delay of the signal is less
than 50 milliseconds;
(iii) interruption in signal is less than 400 milliseconds;
and
(iv) packet loss is less than 3%;
(d) not operate any VIN Hardware outside the Territory;
(e) charge OZI not more than the Termination Tariff for the
Termination of any Call;
(f) comply with the Operations Manual except in the case of
manifest error in which case Teltran shall promptly notify OZI
of the error;
(g) ensure that at least 50% of Ports (and corresponding bandwidth
to necessitate operation) held by Teltran are available for
Termination of Calls on an aggregate basis over a 24 hour
period;
(h) maintain sufficient VIN Hardware to terminate Calls routed to
it and to route Calls originated by it within the Territory
under this Agreement such that a telephony grade of
service of P.O2 (the probability of VIN Hardware being unable
to accept a Call during the busiest hour of a day being no
greater than two per cent (2%)) is maintained;
(i) test VIN Hardware in accordance with any testing procedures
set out in the Operations Manual;
(j) not use VIN Hardware unless and until it has satisfied the
requirements set out in the Operations Manual;
(k) ensure that VIN Hardware at all times complies with any
specifications set out in the Operations Manual;
(l) provide OZI with remote access to Teltran's systems sufficient
for OZI to enable OZI to verify Teltran's compliance with the
technical aspects of its obligations under this Agreement, and
otherwise as set out in the Operations Manual;
(m) maintain a help desk service adequate to provide a quality and
timely service to assist in resolving problems that Customers
in the Territory have in relation to their Calls, accessible
24 hours per day;
(n) subject to any applicable laws, use all reasonable endeavours
to obtain privacy, data protection and other consents and
approvals from each Customer as necessary or desirable to
facilitate exchange of Call-related and billing data as
contemplated by this Agreement; and
(o) keep a sufficient stock of spare parts and/or replacement VIN
Hardware, to adequately service the System, or as reasonably
specified in the Operations Manual (if greater) to ensure it
operates in accordance with this Agreement (in particular
Clause 2.2(f)).
(p) Provided Teltran complies with Clause 2.2a through 2.2o,
Teltran will not be required to give any other warranty with
respect the availability of Call Termination in the Territory.
2.3 Teltran shall indemnify OZI and all other Participants against all
claims, losses, liabilities and expenses arising from a failure to
obtain all privacy, data protection and other consents and approvals
from Customers necessary or desirable to facilitate exchange of
Call-related and billing data as contemplated by this Agreement.
2.4 Teltran must maintain sufficient competent trained staff and otherwise
commit such other resources as are reasonably required to meet its
obligations under this Agreement.
2.5 Teltran will be responsible for obtaining, at its cost, all permits,
licences and approvals in the Territory associated with the performance
of its obligations under this Agreement.
2.6 Teltran agrees that it shall comply with the guidelines relating to the
operation of Closed Groups, as may be amended by OZI from time to time,
subject to OZI providing reasonable prior written notice to Teltran
from time to time of any proposed amendments.
2.7 The Customer Sample Terms & Conditions, as contained in Schedule 8, are
deemed to be sufficient for those terms required to be entered in to
between Teltran and its customers for provision of the Service.
3. PURCHASE OF VIN HARDWARE FROM OZI
3.1 Orders for VIN Hardware may be placed with or through OZI. OZI may
accept any order by notice to Teltran. If OZI cannot or will not fulfil
HKTEL Canada's reasonable order for Node Hardware within forty two (42)
days of acceptance of that order, HKTEL Canada's obligations under
Clauses 2.2(a) and (c) shall be suspended until deliveries are made in
accordance with that order.
3.2 OZI will deliver VIN Hardware ordered under this Agreement and accepted
by OZI to a carrier nominated by Teltran. All risk passes to Teltran on
delivery to that carrier. Ownership does not pass until payment is made
in full.
3.3 Subject to the Licence Agreement, OZI shall not charge Teltran more
than its costs for VIN Hardware and its provisioning (if relevant), as
set out in Schedule 5.
3.4 OZI must not unreasonably refuse any orders for VIN Hardware made by
Teltran from time to time.
3.5 Teltran must:
(a) comply with all reasonable directions given by OZI from time
to time in relation to any technical aspect of the Service or
any VIN Hardware; and
(b) not use the VIN Hardware except in conjunction with equipment
meeting the specifications set out in the Operations Manual;
and
(c) not use any other device or devices in substitution for VIN
Hardware, save with OZI's prior written consent.
4. OZI RESPONSIBILITIES
4.1 On notification of receipt of a Customer's Call by Teltran and
nomination by a Customer of a specific Termination Point which OZI has
advised is accessible using the Service, OZI must provide routing
information to Teltran sufficient for the Call to be routed to that
Participant. OZI does not warrant that Calls will be capable of
successful Termination at any time or to any place.
4.2 OZI shall not enable Teltran to provide the Service commercially until
Teltran has installed a minimum of 48 Ports in an operational manner
which are to be installed as soon as possible after the date of this
Agreement.
4.3 For the duration of the Term OZI must:
(a) subject to Clause 4.2, provide the Service and the System as
contemplated by this Agreement and in the manner set out in
the Operations Manual;
(b) during OZI's normal business hours, provide Teltran with
reasonable assistance in installing and configuring VIN
Hardware;
(c) maintain an audit trail of Calls for a period of at least 1
year from the making and/or Termination of a Call and for at
least 1 year after the expiry or earlier termination of this
Agreement;
(d) produce and provide to Teltran routing information for xxxx
production;
(e) co-operate with Teltran's technical staff in providing to
Teltran support and assistance set out in the Operations
Manual;
(f) maintain its network operations center 24 hours every day;
(g) make available technical support to Teltran 24 hours every day
including an escalation procedure for technical support to be
set out in any specifications published by OZI from time to
time (whether or not as part of the Operations Manual) in
relation to support;
(h) provide reasonable access to the Web interface for the Service
for Teltran to customise Teltran's portion of the interface
and provide to Teltran instructions relating to such
customisation as part of the Documentation;
(i) calculate and notify Teltran of the payments required by
Teltran under this Agreement;
(j) promptly (but in any case no later than 7 days of the relevant
event) notify Teltran of the appointment or termination of the
appointment of any other Participant; and
(k) commit all reasonably available resources required to remedy
any event within OZI's control that adversely affect the
System as a whole, which may include a work around.
4.4 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.
4.5 OZI's support obligations do not include on-site technical assistance.
4.6 OZI may agree to provide service beyond that set out in the Operations
Manual or this Agreement at a price to be agreed between the Parties.
4.7 OZI must provide reasonable assistance to Teltran in obtaining and
maintaining pursuant to Clause 2.5 any permits and approvals necessary
for performance by Teltran of this Agreement.
4.8 OZI will continue development practices in line with compliance of
objectives designed to satisfy computing requirements for the Year
2000. OZI will conduct periodic testing to ensure these objectives are
continually met.
4.9 Provide Teltran with a trial VIN network access period of 30 (thirty)
days, during which time Teltran will be liable for all call termination
costs. Teltran will provide OZI with a purchase order valued according
to the price list in Schedule 5. OZI will invoice Teltran for the
purchase order after the 30 day trial period or on signing this
contract, whichever comes first. Further OZI will invoice Teltran for
termination costs according to standard terms and conditions as
describe herein. Following this trial period, Teltran will be liable
for Service Fees according to standard terms and conditions as set out
in Schedule 6 of this agreement.
5. MANAGEMENT
5.1 The Parties must each appoint a business manager and technical manager.
Each pair of managers must conduct project meetings at mutually agreed
times during the term of this Agreement. Those meetings may be by
telephone.
5.2 The business and technical managers have authority to make binding
decisions on the day to day business or technical aspects of the
Agreement respectively. For the avoidance of doubt, no Agreement or
decision will be binding until and unless it is reduced to writing and
is signed by a business or technical manager of each Party.
6. FEES AND CHARGES
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 in respect of Calls originating in the
Territory:
(1) a fee calculated under clause 6.2; and
(2) any amount to be remitted to another Participant for
the Termination of Calls originating through Teltran.
6.2 The Service Fee for a period is the fee for provision of the Service
and other support under this Agreement for a period and is the total of
the aggregate of the fees payable for each Call originated in the
Territory during that period calculated in accordance with clause 1 of
Schedule 6 using, where appropriate, the time for each Call determined
in accordance with clause 6.3.
6.3 The time for each Call for the purposes of clauses 6.2, 6.4 and
Schedule 6 is the time of that Call (determined in minimum increments
of six seconds rounded up) commencing from the time the cessation of
ring-back from the Termination Point and concluding at the time that
the Call originator hangs up.
6.4 Teltran acknowledges that it is in the interests of all Participants
that termination costs be kept to a minimum and provided on a cost
recovery basis only. If at any time OZI becomes able to arrange
termination within the Territory for any Calls at a lower rate than the
Termination Tariff charged by Teltran, then OZI may give notice to
Teltran requiring Teltran to show cause to OZI within seven (7) days of
that notice why termination should not be carried out by another person
or means. Unless Teltran is able to demonstrate within that seven (7)
day period that such alternative termination with its accompanying
lower cost, is unlikely to be more attractive to callers, then OZI may
commence utilisation of the alternative termination arrangements.
6.5 Notwithstanding Clause 6.4, Teltran acknowledges that it has no
exclusivity in relation to the Termination of Calls in the Territory.
6.6 The Termination Fee for each Call is equal to the price for that Call
(calculated in accordance with clause 6.3 and the Termination Tariff)
charged to OZI by the party terminating the Call.
6.7 For each Call originating through VIN Hardware operated by Teltran and
terminated through the use of the Service, Teltran must pay OZI the
Termination Fee for that Call.
6.8 OZI may amend the Termination Tariff in respect of Calls from time to
time by written notice to Teltran as reasonably necessary to reflect
the costs of Termination to OZI and other Participants of such
termination provided that OZI shall give at least 5 days prior notice
of any such change.
6.9 OZI will be responsible for remittance of amounts due and payable by
OZI to other Participants which arise out of Terminations by other
Participants of traffic originated by Teltran's Customers.
7. RIGHT TO APPOINT RESELLERS
7.1 Teltran may appoint any entity in its sole and reasonable discretion as
Resellers to assist in marketing the Service in the Territory, provided
that:
(a) the Reseller shall not promote or market the Service or the
System outside the Territory;
(b) the Reseller shall not market or promote the Service in the
Territory other than in accordance with the Teltran marketing
and promotion activities authorized under this Agreement; and
(c) Teltran shall not directly benefit from the Reseller's market
activities associated with a product or service that competes
with the System or the Service. For purposes of this Section
7.1(c), examples of a product or service that does or does not
compete with the Service or the System shall be established by
the good faith negotiation and mutual agreement of the
Parties.
(d) Teltran will provide OZI with a copy of its standard Reseller
Agreement, to be included in this contract as Schedule 7.
7.2 Teltran shall cause the appointment of any Reseller to be terminated
promptly: after receipt of notice in writing from OZI where, in the
reasonable opinion of OZI, Teltran has received a direct benefit as a
result of the Reseller's promotion of a directly competitive system or
service; or if Reseller fails to use all reasonable endeavours to
market and promote the System or the Service or directly or indirectly
disparages the System or the Service. Teltran shall notify OZI in
advance of its intention to appoint any Reseller where the proposed
Reseller or its Associates is providing or marketing a service that is
competitive to the Service and shall take into account any reasonable
comments of OZI in making such appointment.
7.3 Teltran agrees to appoint one or more Resellers in the Territory in
accordance with Section 7.2 to ensure that the Service is promoted in
respect of voice Calls to a minimum of 50,000 business users and/or
1,000,000 consumer users in the Territory within twelve (12) months of
Commercial Launch.
7.4 Teltran shall be responsible for all acts and omissions of the
Resellers in the performance of this Agreement as if those acts and
omissions were its own.
8. GENERAL PROVISIONS RELATING TO PAYMENT OF FEES AND CHARGES
8.1 Any payments due pursuant to this Agreement, including but not only
amounts payable under Clause 6 may be netted off (set off) by OZI.
Invoices will be for gross charges (ie 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 non-delivery 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 shall pay to OZI any amount payable under Schedule 6 within 14
days of the end of the month in which the payment or benefit was
obtained by Teltran.
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 on the last
day of the relevant month (or if not published on that day, on the last
day in that month that the Wall Street Journal (Western Edition)
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 OZI). Where any payment would otherwise require
deduction of any tax, custom, duty or levy Teltran must pay a grossed
up amount such that, after any payment by Teltran in respect of those
taxes, customs, duties or levies, OZI receives the amount calculated
under this Agreement. Teltran shall then promptly pay all such
withholdings and shall provide to OZI original receipts for such
payment. OZI shall refund to Teltran 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 Teltran 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 which is the lesser of:
(a) the LIBOR rate last quoted at the relevant due date plus 4
percent per year; and
(b) the greatest percentage permitted by applicable law.
9. RECORDS
9.1 OZI's records and any invoices or statements of the total of the Calls
in respect of any period are prima facie evidence of the information
stated therein.
9.2 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 or earlier termination of
this Agreement, complete and accurate records covering all transactions
relating to this Agreement including transaction logs.
9.3 Those records must be available for inspection by the other Party from
time to time for four (4) years following the expiration or earlier
termination 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.
9.4 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 and Teltran may elect to conduct an audit of
OZI in relation to the payment of Termination Fees no more than twice
in any year. The initiating Party must give the other Party at least 30
days' notice of any audit. For the purpose of conducting any audit, the
requested Party must, at its own expense provide the initiating 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.
9.5 If an audit indicates a material inaccuracy (being variation of the
greater of 5 per cent (or more) 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 reasonable cost of the audit.
9.6 If an audit indicates an inaccuracy, the Party receiving the benefit of
that inaccuracy must pay to the other Party any outstanding amount.
9.7 It is agreed that KPMG is deemed to be an acceptable auditor with
respect the provisions contained in this Clause 9, provided KPMG
operate within guidelines and practices considered acceptable to OZI.
If otherwise OZI is at liberty to appoint another auditor.
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
Teltran in relation to any proposed changes to the Operations Manual
and to give at least 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
Documentation.
10.2 OZI shall supply updates to the Documentation to reflect improvements
and rectification of errors and otherwise as required to reflect the
appointment of new Participants.
10.3 OZI shall provide Documentation either by physical delivery or by
posting the same on Web pages which can be accessed by Teltran or other
agreed form of electronic communication.
10.4 All Documentation will be provided in English. OZI is not required to
prepare translations of the Documentation into any other 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 suffered as a
result of any Person's use of Teltran's erroneous translations where
any such loss is suffered as a direct result of a mistake in such
transaction.
11. WARRANTIES
11.1 OZI warrants, represents and agrees that:
(a) all hardware and software media to be delivered to Teltran
pursuant to this Agreement will be new, undamaged and
unencumbered;
(b) title to any hardware purchased by Teltran under this
Agreement will pass to it upon payment in full therefore;
(c) the VIN Hardware to be provided by it to Teltran under this
Agreement and/or the Licence Agreement will materially and
substantially comply with specifications set out in the
Operations Manual (provided that Teltran acknowledges that its
sole remedy for breach of this warranty will be to require
repair or resupply of the non-conforming item);
(d) it will use its best endeavours to ensure that the
Documentation contains information sufficient that it will, by
itself, be sufficiently comprehensive to enable relevant
Teltran staff, suitably trained, to provide the Service in
accordance with the Documentation;
(e) all of OZI's employees and subcontractors providing services
to Teltran under this Agreement will be suitably qualified,
trained and experienced to do so; and
(f) it will make spare parts for all VIN Hardware to be provided
to Teltran pursuant to this Agreement, or comparable
substitutes therefor for the Term, such spare parts to be
provided on reasonable terms and conditions not materially
different from the terms and conditions generally applying for
the supply of spare parts to other Participants.
The warranties given in this Clause are collectively and individually
referred to as the Performance Warranty.
11.2 Teltran must provide OZI with all access to Teltran's premises and VIN
Hardware reasonably necessary to correct or diagnose any reported
error(s).
11.3 The Performance Warranty provided in Clause 11.1 does not apply to
errors which are a result of:
(a) use of the Service outside the scope of this agreement;
(b) changes in, or modifications to the Service, or VIN Hardware;
(c) use of the Service by any Person outside the scope of the
Operations Manual;
(d) use of data or software of third parties or with hardware
which is incompatible with the Service unless that data,
software, or hardware was recommended or otherwise approved in
writing by OZI;
(e) any changes to any component of any VIN Hardware, unless they
were recommended by OZI in writing;
(f) changes made to the specifications or Documentation by Teltran
without the prior written approval of OZI; or
(g) accident, physical, electric or magnetic stress, unauthorised
alterations, modifications, or changes; failure of electrical
power, environmental controls; or causes other than
ordinary use provided that OZI shall use its best endeavours
to minimise any errors or delays caused by the factors
referred to in this subclause.
11.4 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.
11.5 Teltran acknowledges that OZI makes, has made, and, by the supply of
the VIN Hardware will make, no representations in relation to the VIN
Hardware's compliance with any local laws or regulatory requirements or
that Teltran's use of that hardware will comply with any such
requirements. Teltran will be responsible for obtaining homologation
approvals at its own cost subject to the supply by OZI of test data and
information available to it. OZI will, at the reasonable cost of
Teltran, promptly provide such assistance which Teltran may reasonably
request in order to obtain any necessary local approvals in connection
with its use of the said hardware.
11.6 Teltran must not represent or warrant to any Person that the Service or
any software program or related documentation:
(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.
11.7 To the greatest extent possible under applicable law, Teltran expressly
waives all representations, warranties or conditions not specifically
set out in this Agreement 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.
11.8 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.
11.9 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. LIMITATION OF LIABILITY
12.1 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 the parties
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.
12.2 To the extent permissible by law, OZI has no liability under or in
respect of this Agreement except as set out in it. Neither Party shall
be liable to the other for any consequential damages suffered by the
other, whether foreseeable or not, in contract or tort, arising out of
a breach of this Agreement.
12.3 No action, regardless of form, arising out of this Agreement may be
brought by Teltran more than two (2) years after the facts giving rise
to the cause of action have occurred, regardless of whether those facts
by that time are known to, or reasonably ought to have been discovered
by Teltran.
12.4 OZI's aggregate liability for all actions in relation to this Agreement
and/or the Licence Agreement is equal to the amount earned by OZI
personally (not including Termination Fees) under this Agreement and
the Licence Agreement in the first 24 months of the Term.
12.5 Except as expressly provided herein, in no event shall either party be
liable for any claim for damages for loss of profit, loss of expected
savings or consequential damages.
13. TERM AND TERMINATION
13.1 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 unless
otherwise terminated pursuant to the terms of this Agreement.
13.2 This Agreement may be terminated:
(a) by Teltran, for a material breach of this Agreement by OZI, at
Teltran's option, upon written notice if OZI has not cured the
breach within 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 30 days of receiving written notice.
For the purposes of this Agreement and for the purposes of
example only, any breach of Clause 2 by Teltran is a material
breach of this Agreement; and
(c) by either Party, upon the other Party coming under any form of
administration (or a like event) or relief relating to
insolvency (or a like event).
13.3 In addition to its other remedies under this Agreement:
(a) OZI may suspend its performance under this Agreement, and
disconnect Teltran from the Service, if Teltran is in arrears
of any payment owing under this Agreement for 30 days or
longer, and OZI has given to Teltran at least 14 days notice
of its intention to suspend; and
(b) Teltran may direct OZI to suspend the provision of the Service
from a Participant where that Participant is in default of its
obligation without reasonable cause (in the opinion of OZI) to
pay Termination Fees in respect of Calls originated by that
Participant and terminated by Teltran where such default has
continued for a period of 30 days or longer and OZI has given
to Teltran at least 14 days notice of its intention to
suspend. OZI shall suspend such Service until such payment is
made.
13.4 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; and
(c) each Party must immediately pay all sums owing to the other
under this Agreement or as they subsequently become due; and
(d) Teltran must take all reasonable steps to transfer to OZI or
its nominee the benefit of all approvals and permits acquired
by it specifically in relation to the System and the Service..
13.5 Clauses 2.3, 9.3, 11, 12, 13, 14, 15, 16, 17 and 19 shall survive
termination of this Agreement.
14. CONFIDENTIALITY
14.1 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.
14.2 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.
14.3 This Clause survives the termination of this Agreement.
15. OWNERSHIP OF PROPRIETARY RIGHTS
15.1 Teltran does not acquire any rights in, title to or interest in the
Service or related Documentation, except as explicitly set out in this
Agreement or in the Licence Agreement.
16. INDEMNIFICATION
16.1 Teltran indemnifies OZI against any and all claims and liabilities,
including reasonable legal fees, resulting from:
(a) Teltran's modifications ( not approved in writing by OZI) to
the Service;
(b) any claim based upon Teltran's or the use through Teltran of
the Service by a Customer of Teltran;
(c) any breach by Teltran of this Agreement; and
(d) a failure by Teltran to comply with any applicable law in the
Territory, save where resulting from the gross or wilful
negligence of OZI, its agents or employees.
16.2 OZI indemnifies Teltran against any and all claims and liabilities,
including reasonable legal fees, resulting from any breach by OZI of
this Agreement.
17. PUBLICITY
Teltran and OZI must cooperate regarding public relations activities,
including public announcements, joint press releases, and other
activities to be mutually agreed.
18. INTERDEPENDENCE WITH LICENCE AGREEMENT
18.1 This Agreement shall have no force and effect unless and until the
Licence Agreement becomes binding between the Parties.
18.2 Any default under the Licence Agreement by Teltran shall constitute a
default under this Agreement by Teltran and any default under the
Licence Agreement by OZI shall be deemed to constitute a default under
this Agreement by OZI.
18.3 Any circumstance justifying Teltran in terminating the Licence
Agreement shall justify Teltran in terminating this Agreement and any
circumstance justifying OZI in terminating the Licence Agreement shall
justify OZI in terminating this Agreement.
19. GENERAL PROVISIONS
Co-operation
19.1 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 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
19.2 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.
Assignment
19.3 This Agreement is not assignable or transferable by Teltran except as
expressly set out herein, without the prior written consent of OZI. Any
attempt to assign this Agreement without that consent is void.
19.4 Teltran shall not suffer or allow a change in control of Teltran
(without the prior written consent of OZI which must not be
unreasonably withheld, conditioned or delayed) in any circumstance
where an assignment of Teltran's interest in this Agreement to the
Person acquiring control would not be permitted under this Agreement.
Subcontracting
19.5 OZI may subcontract any of its obligations under this Agreement without
restriction. For the avoidance of doubt no subcontracting will relieve
OZI of primary liability for any obligation it may have under this
Agreement.
Agency
19.6 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. 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
19.7 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
19.8 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
19.9 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
19.10 This Agreement is governed by the laws in force in New South Wales,
Australia, except with respect to the conflict of law provisions
thereof. 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.
19.11 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.
19.12 The application of the United Nations Convention for the International
Sale of Goods is expressly disclaimed.
19.13 The prevailing Party in any action to enforce this Agreement is
entitled to recover costs and expenses including, without limitation,
legal fees.
Force Majeure
19.14 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, labour 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 21 days and there is an actual or
threatened material disadvantage to either Party, it may, at its
option, terminate this Agreement.
Entire Agreement
19.15 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 XXX 00 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.
19.16 This Agreement has precedence over the Documentation to the extent of
any inconsistency.
19.17 To the extent that any applicable law prohibits any provision of this
Agreement that provision is to be read down to the extent necessary to
comply with that law. Teltran must keep OZI informed of any such laws
and their effect.
Executed by the Parties:
Teltran OZEMAIL INTERLINE PTY LIMITED
(ACN 078 742 891)
By: /s/ Xxxxx X. Xxxxxx By: /s/ X. X. Xxxxxxxxx
------------------------------- -------------------------------
Name: Xxxxx X. Xxxxxx Name: X. X. Xxxxxxxxx
----------------------------- -----------------------------
Title: President and CEO Title: Director and CEO
---------------------------- ----------------------------
Date: 10/2/98 Date: 10/19/98
----------------------------- -----------------------------
SCHEDULE 1
OPERATIONS MANUAL
Documents relating to the operation of the system are provided from the
following web site:-
xxxxx://xxx.xxxxxxxxxxxx.xxxx.xxx/xxxxx/xxx/xxxxx
OZI will provide Teltran with appropriate login access.
These documents are provided as Microsoft Word 97 files [or earlier versions],
which will be updated from time to time to reflect any changes, modifications or
provision of new features.
