Telecommunications Services Agreement
THIS AGREEMENT is made this 15th day of October,1998
BETWEEN: TELTRAN INTERNATIONAL, INC. a Delaware Corporation with its
principal offices at Xxx Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000 ("Teltran").
AND: OZEMAIL INTERLINE PTY LIMITED (ACN 078 742 891) ("Customer") with
its principal offices at XxXxxxx Xxxxxx, 00 Xxxxxxx Xxxxxx, Xx
Xxxxxxxx XXX 0000.
Introduction
Customer desires to purchase telecommunications services from Teltran and
Teltran desires to sell such services to Customer.
Agreement
1. Services Provided
1.1 In accordance with the terms and conditions of this Agreement, Teltran
shall provide carrier telecommunication services as set out in Schedule
A (the "Services") to Customer.
1.2 Services to be provided shall be limited to those countries set out in
Schedule B unless otherwise agreed. Teltran shall have the right to
change the countries set out in Schedule B upon seven (7) days written
notice to Customer ("Change of Country Notice".)
2. Term
2.1 Subject to clause 6, this Agreement shall be deem to have commenced on
the date above which shall be the same as the commencement date for the
USA Interconnectivity and Support Agreement and the USA Intellectual
Property License Agreement signed between the Parties (the
"Commencement Date") and continue for a period of twenty four (24)
months. This Agreement shall be independent of the other Agreements
mentioned in this section but all three will begin on the same date and
run concurrently until such time that they are terminated in accordance
with the provisions contained in each.
2.2 Subject to clause 6, this Agreement shall thereafter continue on the
same terms and conditions, on a month to month basis unless either
party notifies the other party in writing not less than sixty (60) days
prior to the expiration date of its desire to terminate this Agreement.
3. Commitment
3.1 Customer agrees to use and accept the Services at the rates set out in
Schedule B.
3.2 Teltran shall have the right to change the rates set out in Schedule B
upon seven (7) days written notice to Customer ("Change of Rate
Notice".)
3.3 This Agreement is not contingent on any minimum traffic volumes.
Without limitation, Customer reserves the right, at its absolute
discretion, to reduce or suspend traffic to any country or countries to
which Teltran supplies the Services.
4. Technical Requirements
4.1 In order to utilise the Services, a connection between Customer's
network and the Teltran network at the Teltran point of presence
facility set out in Schedule A ("Teltran POP") has been established
("Service Interconnection"). Teltran shall maintain the Service
Interconnection facilities set out in Schedule A, as modified by
Customer from time to time subject to Teltran approval. Such approval
shall not be withheld to the extent that the modification does not
result in the facilities comprising equipment other than Voice
Interface Nodes (VIN's) and/or DS-1 facilities.
4.2 To the extent that the Service Interconnection facilities referred to
in clause 4.1 are housed at the Teltran POP, Teltran shall:
(a) allow Customer or third parties authorised by Customer access
to the Teltran POP for the purposes of maintaining, modifying
or updating the Service Interconnection facilities; and
(b) use reasonable endeavours, being no less than the efforts used
in respect of its equipment at the Teltran POP, to maintain a
secure environment and appropriate conditions for the
operation of the Service Interconnection (including the
Service Interconnection facilities).
4.3 Save for the cost of provision and maintenance of the Service
Interconnection facilities referred to in clause 4.1, the fees
payable under clause 5.1 and Taxes payable under clause 10, Customer
shall have no other liability to Teltran whatsoever (including the
reimbursement of any costs or expenses incurred by Teltran) in
relation to the provision of the Services. Without limitation, Teltran
shall not incur any costs or expenses on Customer's behalf, nor enter
into any third party agreements or arrangements which places
obligations on Customer, without the prior written consent of Customer.
4.4 Teltran shall pay all applicable settlements with overseas
correspondents and payments under any intercarrier arrangement
related to the Services provided to Customer under this Agreement.
5. Billing
5.1 Customer shall pay Teltran for Services provided in accordance with the
rates set out in Schedule B on the basis that billable calls will be
rounded to the next higher six seconds with a minimum billing period of
thirty seconds, except where rates are listed on Schedule B based upon
one minute billing periods (as shown in that Schedule) in which case
the length of the billable call will be rounded to the next higher one
minute interval.
5.2 Teltran shall deliver via facsimile or email transmission to Customer a
summary invoice and traffic report with Call Detail Records (CDR's) to
the Customer for
each calendar week, which invoice and report shall set forth the actual
amount and cost of services rendered to Customer during the immediately
preceding week according to Teltran's records.
5.3 Such invoice may also contain any appropriate debits or credits to
previous invoices rendered to Customer. Upon receipt of the invoice the
Customer shall, within two (2) business days of the date of the
invoice, deliver the invoice amount (to the extent that it is not
disputed) without any deductions or offsets of any kind via wire
transfer for deposit in Teltran's account.
5.4 Any billing discrepancies shall be presented to Teltran in reasonable
detail in writing within 30 days of the date of the invoice in
question. If Teltran fails to reply in writing regarding the billing
discrepancy within 30 days, the disputed amount shall be deemed valid
and accepted by Teltran. Both parties shall endeavour to resolve all
disputes within 60 days.
5.5 Both parties agree to act in good faith to resolve billing disputes
between each other. If within sixty (60) days a dispute is not
resolved, both parties agree to immediately resolve disputes with
binding arbitration with respect to any and all proceedings. Any such
proceeding shall be pursuant to the rules of the American Arbitration
Association as they are applicable to the immediate resolution of
disputes brought forward. A single arbitrator, who must be
knowledgeable in the telecommunications industry, will be utilised in
any proceedings. The arbitrator shall be empowered to promptly
adjudicate and determine each proceeding in law and/or in equity, and
must determine who the prevailing Party is within ten (10) days after
the matter has been referred to arbitration under this clause. Judgment
upon the reward will be final and may be entered in any Federal or
State Court, in the State of New York, having jurisdiction over the
relevant Party. Both Parties agree to immediately comply with the
judgment having been entered and/or confirmed.
5.6 If Customer does not make payments due in respect of invoices rendered
in accordance with this clause 5 by the due date on a regular basis
(save where the amount rendered is in dispute),
Teltran may request Customer to provide a Letter of Credit for an
amount not to exceed the average invoice amount during the previous
month.
For the purposes of this clause, Customer shall be deemed not to have
made payment on a regular basis where it is late in making payment of:
(a) 3 consecutive invoices; or
(b) 3 invoices in any eight week period.
5.7 Teltran may offset against the Letter of Credit any amounts due under
this Agreement (save to the extent that they are in dispute) that are
unpaid ten (10)
business days from the due date unless express agreement has been
reached by the parties.
6. Termination
6.1 Either Party may terminate this Agreement and suspend the performance
of any of its obligations hereunder if:
(a) The other Party fails to perform or observe any material term,
condition or agreement to be performed or observed by it
hereunder and fails to cure the same within thirty (30) days
after receipt of written notice hereof;
(b) It has terminated either or both of the USA Interconnectivity
and Support Agreement and the USA Intellectual Property
License Agreement of even date;
(c) The other Party ceases doing business as a going concern,
makes an assignment for the benefit of creditors, admits in
writing to its inability to pay its debts as they become due,
files a voluntary petition in bankruptcy, is adjudicated a
bankrupt or an insolvent, files a petition seeking for itself
any reorganisation, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any
present or future statute, law or regulation or files an
answer admitting the material allegations of a petition filed
against it in any such proceeding, consents to or acquiesces
in the appointment of a trustee, receiver, or liquidator of it
or of all or any substantial part of its assets or properties,
or it or its shareholders shall take any action looking to its
dissolution or liquidation; or
(d) A petition in bankruptcy is filed against the other Party and
is not dismissed within sixty (60) days of being filed or,
without the Party's consent or acquiescence, a trustee,
receiver or liquidator of it or of all or any substantial part
of its assets and properties is appointed and such appointment
is not vacated within thirty (30) days thereafter.
6.2 Customer may terminate this Agreement by giving written notice to
Teltran sixty (60) days prior to Customer's desired termination date.
6.3 Teltran may terminate this Agreement by giving written notice to
Customer sixty (60) days prior to its intention to do so.
6.4 Upon termination:
(a) Customer will be billed for and shall pay within fourteen (14)
days after such Termination the total outstanding charges due;
and
(b) Teltran shall have the right to offset against the Letter of
Credit (if any) any amount not paid under clause 6.4(a)
(unless in dispute) and shall cancel the Letter of Credit and
return it to Customer within 30 days of termination.
7. Representations of Parties
7.1 Each party shall comply at all times with all laws and regulations
applicable to the sale and provision of Services to its users and
end-users.
8. Disclaimer of Warranties
8.1 Save to the extent obligations are specifically imposed on it by this
Agreement, Teltran (including its subsidiaries, affiliates,
predecessors, successors and assigns) makes no warranties, express or
implied, and specifically disclaims any warranty of merchantability or
fitness for a particular purpose with respect to services or products
provided pursuant to this Agreement.
8.2 In no event shall either Party be liable for consequential, special or
indirect damages or lost profits sustained by reason of its performance
of this Agreement, or for any failure, breakdown, or interruption of
service, whatever shall be the cause, or however long it shall last,
and regardless of whether any one has been advised of the possibility
of such damages.
8.3 Regardless of the nature of any claim or the form of any action which
may be brought against Teltran as a result of or arising out of any
errors or omissions which Teltran may make or may result in providing
the Services for Customer, Teltran's sole liability and obligation to
Customer, except in the case of claims arising out of intentional and
wrongful acts of Teltran, shall be to use commercially reasonable
efforts to investigate and, to the extent reasonably practicable and
within the reasonable control of Teltran, correct the circumstances
that caused such errors. Teltran shall not be liable for any loss or
damages sustained by reason of any failure or interruption of Services
covered by this Agreement, nor shall Teltran provide Customer with any
credits to be applied against future amounts due, whether such loss or
damage arises because of breakdown of equipment or because of any other
reason except where caused by intentional and wrongful acts of Teltran.
Teltran's liability hereunder shall under no circumstances be greater
than the amount of fees paid by Customer for the Services with respect
to which the error or omission occurred.
8.4 Except as provided for herein, neither Party shall have liability for
damages caused by the other Party's failure to perform its
responsibilities under this Agreement.
8.5 The limitations of liability herein shall apply regardless of the form
of action, whether in contract, tort, warranty, strict liability, or
negligence. This Agreement does not create any claim or right of
action, nor is it intended to confer any benefit on any third party,
including but not limited to any user or end-user of Customer.
8.6 The limitations set forth in this clause 8 shall survive termination of
this Agreement.
9. Indemnity
9.1 A Party (the indemnifying Party) shall indemnify and hold harmless the
other Party (the indemnified Party), its officers, directors, employees
and agents, against and from any liability, loss, damage, cost and
expense (including attorneys' fees and costs of litigation) arising out
of or in connection with any claim or action which any person or entity
(other than the other Party) may file or threaten to file against
either party or its officers, directors, employees or agents arising
from the actions or agreements of such indemnifying party or from a
breach of this Agreement by the indemnifying Party. The indemnification
provided herein shall survive the termination of this Agreement and the
termination of any Service provided pursuant to this Agreement.
Notwithstanding any other provision of this Agreement, the officers,
directors, employees and agents of either Party shall have no liability
to the other Party, or any affiliate of the other Party, under this
Agreement or in connection with the Services to be provided hereunder.
A Party shall have no obligation of indemnity in any particular
circumstance if pursuant to the terms of the Agreement such Party has
no direct liability or its liability is limited in such circumstances.
For example, pursuant to Clause 8.3 (save to the extent stated in that
clause), Teltran shall have no obligation to Customer for any
interruption in Services and consequently has no indemnity obligation
to Customer arising from such interruption.
10. Taxes
10.1 The rates set forth in Attachment B are exclusive of any applicable
taxes assessed by any governmental entity arising as a result of the
provision of Services by Teltran to Customer under this Agreement
(collectively, the "Taxes") which shall be charged to Customer.
10.2 In addition to all other fees and amounts payable hereunder, Customer
shall be solely responsible for the payment of any and all Taxes save
to the extent it provides Teltran with appropriate tax exemption
documentation or is otherwise exempt from the requirements to pay the
Taxes.
10.3 Customer shall be responsible for the collection of all applicable
taxes and fees from Customer's customers ("End Users") and for the
remittance of such taxes and fees to the relevant governmental
authority.
11. Interfacing and Communication with End-Users
11.1 Interfacing and communicating with end-users shall be the sole
responsibility of Customer with respect to any use that Customer may
make of the Services provided pursuant to this Agreement to in turn
provide service to other persons or entities. Such interfacing and
communicating shall include without limitation installation of service,
termination of service, placing of orders, billing and billing
inquiries, reporting of service outages and problems, collection of
charges and handling and resolution of all disputes.
12. Customer's Use of Service
12.1 Customer may use the Services provided pursuant to this Agreement for
any lawful purpose consistent with the transmission and switching
parameters of its telecommunications network, and may resell its use
(or the use of any part thereof) to a third party in the normal course
of the Customer's business, subject to the following:
(a) Abuse - The abuse of the Services is prohibited. The following
activities constitute abuse:
(1) Using the Services to make calls that might
reasonably be expected to frighten, abuse, torment,
or harass another, or
(2) Using Service in such a way that it interferes
unreasonably with the use of Services or Teltran's
network by others.
(b) Fraudulent Use - The fraudulent use of, or the intended or
attempted fraudulent use of, the Services is prohibited. The
following activities constitute fraudulent use:
(1) Using Services to transmit any message or code,
locate a person, or otherwise give or obtain
information, without payment for Service, or
(2) Using or attempting to use Service with the intent to
avoid the payment, either in whole or in part, of any
charges by any means or device.
12.2 Where Teltran believes in good faith that there is fraudulent use of
Services under clause 12.1(b), Teltran may, after written notice to the
Customer and if such conduct is not rectified within a reasonable
period after receipt of such notice, and without liability on the part
of Teltran, restrict, suspend, or discontinue providing the relevant
Service.
13. Confidentiality
13.1 Both parties shall xxxx as confidential all information provided by
each party to the other, which is considered by the disclosing party to
be confidential information. The party receiving such confidential
information shall not
(a) use any portion of such confidential information other than in
connection with performance under this Agreement; or
(b) disclose such confidential information to any third party,
except to the extent required by law, to a government agency
or department or to enforce its rights under this Agreement.
13.2 The obligations to protect confidential information under clause 13.1
shall remain in effect except to the extent that:
(a) such confidential information becomes generally available to
the public; and
(b) such confidential information was developed by the
receiving party independently of disclosure
hereunder.
14. Assignment
14.1 Neither party may assign this Agreement in whole or in part without the
prior written consent of the other party which shall not be
unreasonably withheld or delayed.
14.2 Clause 14.1 shall not restrict Customer's ability to resell the
Services.
15. Independent Parties
15.1 The relationship established by the Agreement shall in no way
constitute either party (or its agents or employees) as a partner,
agent or fiduciary of the other party. The provision of service
described in this Agreement does not establish any joint undertaking,
joint venture or fiduciary relationship between Teltran and Customer.
16. Force Majeure
16.1 Neither party nor its affiliates, subsidiaries, subcontractors or
agents shall be liable in any way for delay, failure in performance,
loss or damage due to causes beyond its reasonable control including
any of the following: fire, strike, embargo, explosion, power blackout,
earthquake, volcanic action, flood, war, water, the elements, labour
disputes, civil or military authority, act of God, or acts of the
public enemy.
17. Severability
17.1 If any proportion of this Agreement shall be found to be invalid or
unenforceable, such portion shall be void and of no effect, but the
remainder of the agreement shall continue in full force unless the
Agreement fails in its essential purpose without the voided portion.
18. Notices
18.1 All notice, identifications, formal requests or other formal
communications required or desired to be given in connection with this
agreement, shall be in writing and shall be effective when delivered in
person, mailed by registered or certified post of sent by telex or
facsimile ("fax") to the recipient party, unless the parties otherwise
agree in writing. Notice shall be addressed to the following
(a) If to Teltran:
Xx Xxxxx Xxxxxxxx
Teltran International, Inc.
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx XX 00000
(b) If to Customer:
Xx Xxxxxx Xxxxxxx
OzEmail Interline Pty Limited
Xxxxx 0, XXX Xxxxx
00 Xxxxxxx Xxxxxx
Xx Xxxxxxxx XXX 0000
19. Compliance with Laws
19.1 Each party is responsible for its own compliance with all laws and
regulations affecting its business, including but not limited to the
collection and remittance of all taxes and other levies imposed by law.
20. Choice of Law
20.1 The domestic law of the State of New York, except its conflict-of-law
rules, shall govern the construction, interpretation and performance of
the Agreement.
21. Jurisdiction
21.1 Each party hereby irrevocably consents to the jurisdiction of the
courts of the State of New York in connection with all disputes,
controversies, claims and actions arising in connection with or
relating to this Agreement and agrees that such courts shall be sole
and exclusive jurisdiction of such disputes, controversies, claims and
action. Each party hereby waives personal service of any summons,
complaint or other process and agrees that the service thereof may be
made by certified or registered mail directed to such party at the
address for notice pursuant to Clause 18 above.
Executed as an Agreement
TELTRAN INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X Xxxxxx
President & CEO
Date:10/15/98
OZEMAIL INTERLINE PTY LIMITED
By: /s/ X.X. Xxxxxxxxx
---------------------------
X.X. Xxxxxxxxx
CEO
Date:10/19/98
