Exhibit 10.7 Customer Master Agreement with Cerillion Technologies Limited
CERILLION TECHNOLOGIES LIMITED
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Customer Master Agreement Terms and Conditions (the "Master Agreement")
Agreement Number 270.01
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THIS AGREEMENT is made on the 20th day of December 2003 (the "Commencement
Date") between Cerillion Technologies Limited whose principal business office is
shown above ("CERILLION") and Telemetrix Inc, with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("TELEMETRIX").
CERILLION and TELEMETRIX hereby agree as follows:
This agreement shall include those schedules listed below which are designated
by TELEMETRIX initials, and future schedules referencing the above stated
agreement number (the "Schedules"). All future orders from TELEMETRIX to
CERILLION shall be governed by the terms and conditions referenced herein and
shall become effective upon acceptance by an authorised CERILLION employee.
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Schedules TELEMETRIX's Initials
Schedule 1: CERILLION Implementation
Services Agreement ____NOT USED_________
Schedule 2: CERILLION Customer Support and
Maintenance Agreement _____________________
Schedule 3: CERILLION Third Party
Licence(s) _____________________
Schedule 4: CERILLION Escrow Agreement
_____________________
Schedule 5: CERILLION Price List
_____________________
Schedule 6: CERILLION Customer
Registration Form _____________________
Schedule 7: CERILLION Initial Services and
Roaming _____________________
Schedule 8: CERILLION Telemetry Device
Extension _____________________
1. Appointment and Term
1.1 CERILLION hereby agrees to supply TELEMETRIX for resale by way of ASP /
bureau services with the Base Products (the "Software"), the Third Party
Products, and the Software Support Services and with the Documentation for
the exclusive purpose of the supply of billing services to one or more
organisations listed in Schedule 6 ("Customer").
1.2 TELEMETRIX shall register new Customers with CERILLION in accordance with
the Customer Registration Process defined in clause 16.1.3 TELEMETRIX shall
not be entitled to assign or subcontract any of its rights or obligations
under this Agreement or appoint any agent to perform such obligations
except as expressly allowed under this Agreement.
1.3 This Agreement together with the Schedules shall commence on the
Commencement Date and shall continue until terminated by either party in
accordance with Sub-Clause 1.4 below:
1.4 Either party may serve on the other written notice of termination of this
Agreement to take place with immediate effect if the other:
(a) fails to observe or perform any material term or condition of this
Agreement and such breach (if capable of remedy) continues for thirty
(30) days after receipt of a written notice from the terminating party
specifying the breach and requiring the same to be remedied; and/or
(b) disposes of the whole or a substantial part of its undertaking,
property or assets, or stops payment of its debts, and/or is made
insolvent or admits insolvency or files a winding up petition under
the Insolvency ▇▇▇ ▇▇▇▇ or has a winding up petition filed against
such other party.
1.5 Termination shall be without prejudice to any rights existing or accrued of
the parties at the date of such termination.
1.6 All clauses in this Agreement stated (expressly or implied) to survive
termination shall survive termination.
1.7 TELEMETRIX shall upon request from CERILLION and otherwise immediately upon
termination of this Agreement deliver to CERILLION all CERILLION Property,
confidential information, correspondence, other documents, specifications,
papers and property (of whatever kind) belonging to CERILLION or given to
TELEMETRIX by CERILLION or to the Customer by CERILLION or TELEMETRIX
during the terms of this Agreement.
2. Licence
2.1 In consideration of TELEMETRIX's full payment of the Fees in accordance
with clause 3 below, CERILLION hereby grants to TELEMETRIX and TELEMETRIX
agrees to accept on the terms and conditions of this Agreement a
non-exclusive and non-transferable licence to process customer and billing
data for, and to give access to the Customer using:
(a) the Software for the Customer's internal use at the site(s) specified
in the Order Form ("Site(s)"); and
(b) the Documentation.
2.2 In consideration of TELEMETRIX's full payment of the Fees in accordance
with clause 3 below, CERILLION hereby grants to TELEMETRIX and TELEMETRIX
agrees to accept on the terms and conditions of this Agreement a
non-exclusive and non-transferable licence to use the Software and the
Documentation for the purposes of configuration, integration, test and
support of the Software at the Site for the benefit exclusively of the
Customer.
2.3 Not withstanding the above Clauses 2.1 and 2.2, TELEMETRIX may request an
extension of the number of Sites referred to in the licence granted under
Clause 2.1(a), by completing the Site(s) section of an additional Order
Form and then delivering it to CERILLION (the "Request").
2.4 Any Request delivered to CERILLION in accordance with Clause 2.3 of this
Agreement will be subject to approval of CERILLION. If accepted, CERILLION
will notify TELEMETRIX of its decision and thereafter CERILLION shall
include the additional Site(s) specified in the Request.
2.4 CERILLION hereby undertakes that such approval shall be decided not later
than seven (7) days of receipt of the Request.
3. Payment
3.1 TELEMETRIX agrees to pay to CERILLION the Fees as specified on the Order
Form.
3.2 If TELEMETRIX fails to pay any sum due under this Agreement, without
prejudice to the provisions contained in sub-clause 3.7 of the Master
Agreement or to any other remedy, CERILLION may, after giving TELEMETRIX
fourteen days' written notice of its intention so to do, cease all work in
progress in respect of the Supply or any part thereof until the payment be
made; in which case the Implementation Fees shall be increased by the
amount of the costs and expenses (calculated in accordance with Sub-Clause
11.1 (a) of the Implementation Agreement) of CERILLION occasioned by such
cessation and the subsequent resumption of work and TELEMETRIX shall grant
a reasonable extension for the performance of the Implementation Agreement.
3.3 Additional Licence Fees are based on the number of Customer Subscriptions
and shall be paid by TELEMETRIX at the rates set out in the Order Form on a
one off basis, if over a one (1) month period, the average number of
Subscriptions exceeds the thresholds set out in the Order Form. Where any
Additional Licence Fee is payable CERILLION shall invoice TELEMETRIX
separately and payment of the Additional Licence Fee shall be due and
payable in accordance with clause 3.6 below.
3.4 All sums due pursuant to this Agreement shall be exclusive of local taxes,
duties, levies or other deductions or withholdings for which TELEMETRIX
shall be liable in accordance with the law.
3.5 TELEMETRIX agrees, and shall procure that the Customer agrees to make and
keep sufficient records to enable CERILLION to verify all payments due to
it under this Agreement, and to provide access by CERILLION to such records
upon receiving written request by CERILLION.
3.6 All payments due under this Agreement shall be payable in US Dollars in
cleared funds into a bank account nominated by CERILLION within 30 days of
the date of CERILLION's relevant invoices.
3.7 No counterclaim or set-off by TELEMETRIX may be deducted from any payment
due to CERILLION on any account whatsoever without the express prior
written consent of CERILLION.
4. TELEMETRIX's obligations
4.1 TELEMETRIX warrants that it:
(a) shall not use, reproduce, sub-licence, or otherwise deal in the
Software or the source code of the Software, the Documentation or any
copies thereof except as expressly permitted by this Agreement;
(b) shall use CERILLION's trademarks and trade names relating to the
Software and/or the Documentation only in the registered or agreed
style in connection with use of the Software or the Documentation
pursuant to its obligations under this Agreement and not alter,
obscure,remove, interfere with or add to any of the trademarks, trade
names, markings or notices affixed to or contained in the Software or
the Documentation;
(c) shall not reverse engineer, de-compile or disassemble the Software or
any portion thereof, nor otherwise attempt to create or derive the
Source Code; and
(d) shall provide CERILLION staff, agents and sub-contractors with full,
free and safe access to its premises and its Customer's premises, and
shall provide such office accommodation and facilities without charge
which CERILLION may reasonably require in order to fulfil its
obligations under this Agreement.
(e) shall sublicense the Software and Documentation on terms no less
stringent than this Agreement, including for the avoidance of doubt
terms exactly parallel to this Clause 4.1.
4.2 For the avoidance of doubt, the Customer and TELEMETRIX shall be able to,
without further reference to CERILLION:
(a) make a copy (in whole or in part) of the Software as is absolutely
necessary for the purpose of back-up or archiving
(b) make a copy of the Software for the purposes of establishing an
offline environment to be used for test and training purposes provided
that such copy of the Software shall not be used for any operational
purpose provided that the original and all copies of the Software
shall remain the property of CERILLION and all such copies include
CERILLION's copyright notice and/or trademarks.
4.3 TELEMETRIX agrees to make available to CERILLION an authorised
representative who shall:
(a) be authorised to make binding decisions for TELEMETRIX with regard to
this Agreement, including any changes and/or additions to the
Schedules or other variation hereto; and
(b) review all documents that are provided by CERILLION for review
hereunder so that corrections or changes may be made by CERILLION; and
(c) provide CERILLION with all relevant information concerning
TELEMETRIX's operations and activities which may be required by
CERILLION hereunder.
4.4 Where participation by, or access by CERILLION to, TELEMETRIX's and the
Customer's own staff is necessary in relation to this Agreement, TELEMETRIX
agrees that such staff shall be available at the times agreed by the
parties. In reaching such agreement, TELEMETRIX shall endeavour to meet any
reasonable timetable proposed by CERILLION. Furthermore, where such staff
participate in providing the Supply, TELEMETRIX shall ensure that such
staff possess the appropriate skills and experience for the tasks assigned
to them.
5. CERILLION Warranty
5.1 CERILLION warrants that on delivery the Software shall conform in all
material respects with the corresponding Function Catalogue and Controlling
Specification.
5.2 Both parties acknowledge that:
(a) it is possible for software to corrupt not only the Software but other
software used on the same system including the operating system
software;
(b) such corruption of software may remain dormant and will not
necessarily be found during a period of writing or testing.
5.3 CERILLION warrants that it has used all reasonable endeavours during the
writing of the Software to ensure that no viruses, trojan horses, worms,
software bombs or similar items ("Viruses") are coded or introduced to the
Software.
5.4 CERILLION shall supply without charge any corrections, rectifications or
modifications required in order for the Software to comply with the
warranties of this clause 5 provided that such defects in the Software are
brought to the attention of CERILLION in writing together with all
information necessary to prove the defect within a period of three calendar
months of delivery of the Software. CERILLION shall within fourteen (14)
days to determine the defect(s) and if found defective, to replace/rectify
within seven (7) days of such discovery/establishment at CERILLION'S own
expense. For the avoidance of doubt, this clause does not entitle
TELEMETRIX to any of the services of the Software Support Services.
6. Intellectual Property Rights
6.1 Title to the Software, New Releases, Documentation, all other specification
documents, manuals, drawings and other media and materials for the Software
or relating to any New Releases, modifications, Enhancements or
replacements thereof supplied by CERILLION under this Agreement (the
"CERILLION Property"), are and shall remain the property of CERILLION or
its licensors. In addition, applications developed under the Software
Support Services are and shall remain the property of CERILLION unless
otherwise agreed in writing.
6.2 Any modification, improvement, addition, invention or upgrade deriving from
or relating to the CERILLION Property developed and/or suggested by
TELEMETRIX or the Customer will be promptly disclosed and delivered by
TELEMETRIX to CERILLION. TELEMETRIX assigns by way of future assignment all
Intellectual Property Rights arising in any work or material produced by
TELEMETRIX as a result of CERILLION carrying out its obligations under this
Agreement, and TELEMETRIX shall execute all documents and co-operate fully
with all procedures required to give full effect to such assignments.
Further, TELEMETRIX will procure that the Customer assigns by way of future
assignment all Intellectual Property Rights arising in any work or material
produced by the Customer as a result of CERILLION carrying out its
obligations under this Agreement, and the Customer shall execute all
documents and co-operate fully with all procedures required to give full
effect to such assignments.
6.3 TELEMETRIX shall notify CERILLION immediately if it becomes aware of any
unauthorised use of any of the CERILLION Property and will assist CERILLION
in taking all steps to defend such rights.
7. Escrow
Following TELEMETRIX's written request, the parties shall enter into an
escrow agreement in respect of the source code of the Software and
associated documentation in the form of the agreement attached at Schedule
4 and agree to comply with all terms of the said agreement. All charges
involved will be paid by TELEMETRIX. For the avoidance of doubt, any
materials released under the provisions of the aforementioned escrow
agreement may only be used in accordance with this Agreement and for the
purposes described herein.
8. Indemnity
8.1 Subject to clause 10 below, CERILLION agrees to indemnify and save harmless
at its own expense TELEMETRIX from and against any claims that the
CERILLION Property infringes the Intellectual Property Rights of any third
party in the United Kingdom but excluding patent applications which could
not reasonably have come to the attention of CERILLION at the time of
delivery of the relevant CERILLION Property.
8.2 TELEMETRIX undertakes that CERILLION shall be given notice of any claim
described in 8.1 above that is made against TELEMETRIX and CERILLION shall
have the sole right to defend and settle such claims at its own discretion
in order to settle or oppose any such claims.
8.3 In the event that any such infringement occurs or may occur CERILLION at
its discretion may:
(a) procure for the Customer the right to continue using the infringing
part of the CERILLION Property; or
(b) modify or amend the infringing part of the CERILLION Property so that
the same becomes non-infringing; or
(c) replace the infringing part of the CERILLION Property by other
software of similar capability.
8.4 The cost of all work carried out by CERILLION pursuant to clause 8.3 above
shall be met by the party responsible for the infringement.
The foregoing sub-clauses state the entire liability and the exclusive
remedy of each of the parties with respect to the infringement or alleged
infringement by use of the CERILLION Property of any patent, trade or
service ▇▇▇▇ or copyright or other intellectual property right.
9. Confidentiality
9.1 All information, data, drawings, specification, documentation, software
listings, source or object code which either party has created or which it
may from time to time create in supporting or enhancing the Software or
Documentation (other than the ideas and principles underlying the same)
(the "Confidential Information") is confidential to the creating party.
Each party agrees that it shall use the Confidential Information of the
other party solely in accordance with the provisions of this Agreement and
that each party shall not at any time during or after completion, expiry or
termination of this Agreement disclose such Confidential Information
whether directly or indirectly to any third party without the prior written
consent of the other party.
9.2 TELEMETRIX further agrees that it shall not itself or through any
subsidiary, agent or third party modify, vary, enhance, copy, sell, lease,
licence, sub-license or otherwise deal with the Software or any part or
parts or variations, modifications, copies New Releases, versions or
enhancements thereof.
9.3 The foregoing provisions shall not prevent the disclosure or use by either
party of any information which is or hereafter, through no fault of that
party, becomes public knowledge or to the extent permitted by law.
9.4 Notwithstanding the other provisions of this clause 9, CERILLION shall have
the right to refer publicly in its website, brochures, proposals,
presentations and other advertising materials to the existence of this
agreement and the general nature of the products and services carried out
for TELEMETRIX such information to be forwarded to TELEMETRIX for approval.
9.5 For the avoidance of doubt, TELEMETRIX shall impose terms of
confidentiality on the Customer no less stringent than this clause 9.
10. Limitation of Liability
10.1 Save as expressly provided in this Agreement there are no other conditions,
non-fraudulent warranties or representations (express or implied) with
respect to the Software and any warranty or representation implied by law
are expressly excluded to the maximum extent permitted by law. TELEMETRIX
expressly affirms that it is not relying on any non-fraudulent warranty,
condition or representation not contained in this agreement.
10.2 Except as provided for explicitly in clause 1.4, either party's sole
remedies in respect of any breach of the terms of this Agreement shall be
limited to damages.
10.3 Nothing in this Agreement shall purport to exclude or limit either party's
liability for death or personal injury to the extent arising from the
negligence of that party or its employees, agents or sub-contractors. For
the avoidance of doubt the whole of this clause 10 shall be subject to this
clause 10.3.
10.4 Subject to sub-clause 10.3, the parties will not be liable to each other
for the following loss or damage however caused and even if foreseeable by
that party:
(a) losses which may be caused by defective products from other
manufacturers; or
(b) any indirect, consequential, incidental or special damages or any
direct or indirect loss of profits, revenue, goodwill, loss of data or
anticipated savings whether sustained by TELEMETRIX or any other party
even if advised of the possibility of such loss or damages.
10.5 Each party shall maintain appropriate and adequate insurance to cover its
liabilities under this Agreement, however, subject to sub-clause 10.3
Cerillion's entire liability in respect of all defaults shall be limited to
the lesser of the total amount payable under the Agreement and
(pound)1,000,000.
11. Force Majeure
Neither Party shall be liable to the other Party nor be held in breach of
this Agreement if prevented hindered or delayed in the performance or
observance of each party's obligations hereunder resulting from acts beyond
each party's control including but not limited to acts of God, acts or
regulations of any governmental or supra-national authority or any third
party supplier, war or national emergency, accident, fire, riot, strikes,
lock-outs, industrial disputes, epidemics, third party hardware, software
or other equipment, communication line failure or failure and fluctuation
of power supply.
12. Non-solicitation
12.1 During and for a period of twelve (12) months after the termination of this
Agreement, neither Party shall solicit the services of nor employ any
employee of the other Party.
12.2 Each party agrees that if it employs or engages any person contrary to
Sub-Clause 8.2 above the party in default shall be liable to pay to the
other party an amount equal to such person's salary per annum at the time
of leaving the employment of the other party.
13. Encryption Export Statement
TELEMETRIX acknowledges that export or use of the Software may be subject
to compliance with laws, rules and regulations of bodies having
jurisdiction over such operations and agrees to comply with the same. If
the export or use of the Software or products containing the Software is so
controlled CERILLION shall have no responsibility to obtain any such
approval required by any applicable laws, rules or regulations.
14. Notices
14.1 Any notice, which expression includes any other communication whatsoever
which is made in accordance with this Agreement, should reference the
appropriate CERILLION contract number and shall, without prejudice of
giving it, be sufficiently given if it is sent by registered or recorded
delivery first class post to the other party to the address stated on the
signature page of this Agreement or to such other address as the respective
party may advise by notice in writing from time to time.
The addressees shall be:
For CERILLION For TELEMETRIX
The Commercial Manager The Chief Executive
14.2 Notices shall be deemed to have been properly given after three Working
days in the case of notices posted from the United Kingdom to a destination
therein and eight Working days in the case of all other notices posted from
the United Kingdom to a destination therein and eight Working days in the
case of all other notices posted internationally.
15. General
15.1 The parties agree that this Agreement contains the entire agreement of the
parties and supersede all prior agreements, understandings or arrangements
between them and further each party acknowledges:
(a) that it has not entered into this Agreement or agreed the Schedules on
the basis of and does not rely and has not relied upon any statement
or representation (whether negligently made or innocently made) or
warranty or other provision (whether oral, written, express or
implied) except those expressly repeated or referred to in this
Agreement and/or the Schedules; and
(b) the only remedy or remedies available in respect of any
misrepresentation or untrue statement made to it shall be a claim for
breach of this Agreement and/or the Schedules, and each party further
acknowledges that this clause shall not apply to any statement,
representation or warranty made fraudulently or to any provision of
this Agreement and/or the Schedules which was induced by fraud so that
nothing in this Agreement or the Schedules shall affect the remedies
available to the parties in respect of such fraudulent matters.
15.2 In the event that any provision of this Agreement is adjudged to be
constructed so it is deemed to be in breach of any applicable law such that
that provision is unenforceable then the parties shall re-negotiate in good
faith such offending provision and any related provisions.
15.3 In the event that TELEMETRIX issues purchase orders which refer to products
and/or services listed on the Order Form or any extension of such products
and services, such purchase orders shall be regarded as for the
administrative convenience of TELEMETRIX only, and any terms and conditions
attached to such purchase orders shall not form part of this Agreement nor
be regarded as superseding this Agreement.
15.4 Unless expressly provided in this Agreement, no express term of this
Agreement or any term implied under it is enforceable pursuant to the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ by any person who is not a
party to it.
15.5 All rights and remedies of the parties hereto are separate and cumulative.
The waiver or failure of either party to exercise in any respect any right
or remedy provided herein shall not be deemed a waiver of any further right
or remedy hereunder.
15.6 The headings of the terms and conditions herein contained are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of any of the terms and conditions of
this Agreement.
15.7 This Agreement shall be subject to, governed by, and construed in
accordance with the laws of England and Wales and the parties hereby submit
to the exclusive jurisdiction of the English Courts.
16. Customer Registration Process
16.1 TELEMETRIX will carry out its own marketing sales efforts at its own cost
to lead to the identification and sale of billing services to potential
customers.
16.2 Upon identification of a potential customer ("Prospect"), TELEMETRIX will
provisionally register such customer with CERILLION by providing the
information required in the Customer Registration Form in Schedule 6.
16.3 The Parties will agree any implementation services required by TELEMETRIX
to be provided by CERILLION specific to the Prospect at this time and
document (directly or by reference) such agreement on the Customer
Registration Form. Fees and terms for such supply shall be separately
agreed.
16.4 In the event that additional support services are required to be provided
by Cerillion specific to the Prospect, these shall also be agreed at this
time and document (directly or by reference) such agreement on the Customer
Registration Form. Fees and terms for such supply shall be separately
agreed.
16.5 In the event that any complementary software is to be provided, such
software shall be invoiced by Cerillion upon supply, and such invoice must
be paid by TELEMETRIX within 30 days.
16.6 Registration will be effective on payment of the first Recurrent Fee as
defined in the agreed and completed Customer Registration Form.
16.7 Support Services will be provided to TELEMETRIX in accordance with Schedule
2 for the benefit of its Customers. In the event that after 12 months of
operation of this Agreement, the total number of subscribers for all
Customers does not exceed ten thousand, CERILLION reserves the right either
to terminate support, or to charge an additional low-usage support fee.
16.8 If at any time a CERILLION invoice for a Recurrent Fee or other fee for a
specific Customer is overdue by more than 30 days, registration of that
Customer shall be deemed to be terminated.
17. Definitions
In this Agreement, save for where expressly provided otherwise by the
Schedules themselves, the following words and expressions shall have the
following meanings:
"Additional Licence Fees" means the fees payable by TELEMETRIX in the
event that the number of Subscriptions
reaches the thresholds described in the
Order Form;
"Additional Software" means the changes or additions to the Base
Products defined within the Controlling
Specification and listed in the Statement
of Supply in Schedule1.;
"Agreement" means these terms and conditions, the
contents of the Schedules and Appendices
appended hereto as amended from time to
time and any written and authorised
amendments hereto;
"Base Product" means a software product of CERILLION, as
described by its corresponding "Function
Catalogue", listed in the Order Form
attached to this Agreement at Schedule 5;
"Documentation" means in respect of a Base Product, the
documents entitled "Function Catalogue"
"User Guide" and "Operations Manual" which
correspond to such Base Product, and in the
respect of Additional Software, any
documents relating to such Additional
Software specified in the Schedule 1
"Statement of Supply";
"Enhancement" means a new or improved feature of the
Software which may be specified in the
product road map;
"Fees" means the Licence Fees, Implementation
Fees, Software Support Fees, Additional
Licence Fees, Third Party Licence Fees,
specified on the Order Form and all other
fees that may be agreed between the parties
in writing from time to time;
" Implementation Fee" means the fee set out in the Order Form
payable to CERILLION for the delivery of
Software, Documentation and Implementation
Services pursuant to Schedule 1 ;
" Implementation Services" means the ancillary items or ancillary
services specified in the Schedule 1
"Statement of Supply" to be supplied by
CERILLION in accordance with the terms of
that Schedule;
"Intellectual Property " means including but not limited to, all
past and future copyright, related rights,
patents, utility models, trade marks, trade
names, service marks, design rights,
database rights, semi-conductor topography
rights, rights in unfair competition,
rights in undisclosed or confidential
information (such as know-how, trade
secrets and inventions (whether patentable
or not)), and other similar intellectual
property rights (whether registered or not)
and applications for such rights as may
exist anywhere in the world;
"Intellectual Property Rights" means all title and proprietary rights in
the Intellectual Property;
"Licence Fee" means the fee payable to CERILLION for the
use of the Software and set out in the
Order Form;
"Order Form" means the Order Form for the Software and
Software Support Services at Schedule 5 to
this Agreement;
"New Release(s)" means a new formal version of the Software
or improved, updated or upgraded version of
the Software, which may include both bug
fixes and Enhancements;
"Software Support Fee(s)" means the fees payable by TELEMETRIX to
CERILLION for the Software Support Services
as set out in the Order Form;
"Software Support Services" means the services to be supplied by
CERILLION to TELEMETRIX and which are set
out in the Appendix to Schedule 2 to this
Agreement;
"Subscription" means a communication service provided by
the Customer and subscribed to by an end
user for which usage events can be
individually measured or recorded and for
which there is usually a unique dialling
number or IP address, e.g. a single public
telephone exchange line or a single GSM
mobile subscription;
"Third Party Products" means the hardware and software products
together with their associated
documentation manufactured by a third party
but to be provided by CERILLION under this
Agreement to the extent listed on the Order
Form;
Third Party Product Fees Means the fees payable by TELEMETRIX to
CERILLION for the Third Party Products as
set out in the Order Form;
"VAT" means Value Added Tax;
"Working Day(s)" means the period 0900 to 1700 Greenwich
Mean Time or British Summer Time, Monday to
Friday. Working Days shall not include
English public holidays nor CERILLION
holidays (reasonable prior notice of which
will be given to TELEMETRIX by CERILLION).
CERILLION /s/TELEMETRIX INC.
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(TELEMETRIX)
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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(type or print name) (type or print name)
/s/illegible /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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(signature) (signature)
Title: Managing Director Title: President
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Date: 7/4/2004 Date: April 13, 2004
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CONTRACT AMENDMENT
Agreement Number 270.01 Amendment Number 01
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Whereas Cerillion Technologies Ltd and Telemetrix Inc. ("the Parties")
have concluded a Customer Master Agreement dated 20th December
2003 ("the Agreement")
And Whereas both Parties are desirous of amending that Agreement
It is hereby agreed that the terms of the Agreement shall be varied as follows:
1. Amendments to front sheet only of Master Agreement, as defined in attachment.
2. Addition of Schedule 7, as defined in attachment.
3. Addition of Schedule 8, as defined in attachment
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CERILLION TELEMETRIX
Signature Signature /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Printed Name: Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Title: Pres.
Date: Date: April 13, 2004
Fax. No.: Fax. No.: ▇▇▇-▇▇▇-▇▇▇▇
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Master Agreement: 270.01 Version: 1.0
CERILLION TECHNOLOGIES LTD
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Schedule 7: CERILLION Initial Services and Roaming
Agreement Number 270.01
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By initialling here and in the appropriate space on the face of the Agreement to
indicate the intention to have this Price List apply, the Customer agrees to the
following terms and conditions which are incorporated in and made a part of the
Master Agreement.
Customers Initials _________________ Date: _________________
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1 Initial Services
1.1 CERILLION shall provide services to set up and configure the Software prior
to its use by TELEMETRIX to support its first customer. These services
("Initial Services") shall be limited to the following:
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Customizations: Mediator Collector for Telos MSC
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Mediator Collector for Ericsson SMSC
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Mediator Collector for ETSI GPRS GSN
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Mediator File Splitting based upon operator
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Provisioning notification via email
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Configuration: Assist TELEMETRIX to set-up Cerillion configuration
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Installation Provide hardware and 3rd party license specifications
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Assist with the set-up of hardware to support Cerillion
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Assist with the install of Cerillion and 3rd party
licenses
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Integration Perform software integration testing of customizations
defined above
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Assist TELEMETRIX with system integration testing
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Post Live Support Provide 3rd line support in accordance with Schedule 2
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1.2 The Parties recognise that no form of acceptance testing or `end user'
operations and user training shall be carried out as part of these Initial
Services.
1.3 The Initial Services shall be provided without charge to TELEMETRIX by
CERILLION.
1.4 In consideration for the supply of the Initial Services, TELEMETRIX shall
exclusively use the CERILLION Software for the supply of billing services
to its customers for a period of three years from the Commencement Date,
excepting that, in the event that TELEMETRIX has undertaken to offer
billing services to customers using CDMA technology, and CERILLION cannot
supply an upgrade to the Software to provide a billing solution for such
technology within 60 days of the written notification of a firm requirement
to do so, TELEMETRIX may utilise another solution for CDMA billing until
the CERILLION upgrade is available.
2 Roaming
2.1 In consideration of the use of the CERILLION Software for the billing of
roaming revenue, TELEMETRIX will remit seven and one half percent (7.5%) of
the gross income claimed from other operators to CERILLION on a monthly
basis, subject to a minimum monthly payment of one thousand dollars (USD
1,000), payable from the first month in which a TAP file is submitted to a
TAP clearing house by TELEMETRIX. The definition of Recurrent Fee is
extended accordingly.
3 Further Development
3.1 CERILLION will undertake to develop the following interfaces and to supply
these without charge, when the monthly income received by CERILLION from
TELEMETRIX exceeds twenty thousand dollars (USD 20,000):
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o Automatic provisioning for Telos MSC
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o Automatic provisioning for Voicemail
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4 Take-on of new operators
4.1 For each new operator for which billing services will be provided by
TELEMETRIX under this Agreement, a fee is payable on registration ("Initial
Fee"). The Initial Fee is set to USD 10,000, and will be invoiced by
Cerillion on acceptance by Cerillion of the registration of a new Customer,
as described in Schedule 6. An additional Initial Fee will be charged on
re-registration, if the Customer has been de-registered at some point in
the past.
4.2 Any additional services for a new Custonmer will be dealt with as described
in Schedule 6.
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Master Agreement: 270.01 Version: 1.0
CERILLION TECHNOLOGIES LTD
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Schedule 7: CERILLION Telemetry Device Extension
Agreement Number 270.01
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By initialling here and in the appropriate space on the face of the Agreement to
indicate the intention to have this Price List apply, the Customer agrees to the
following terms and conditions which are incorporated in and made a part of the
Master Agreement.
Customers Initials _________________ Date: _________________
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1 Telemetry Devices
1.1 A "Telemetry Device" is a remote sensor and/or data logger that returns the
data collected to a central point by transmitting it as calls across a
mobile network.
1.2 In consideration for the fees detailed in clause 1.3 below and the
undertakings in clause 1.5 below, CERILLION hereby extends the licence
granted for the use of the Software in the Master Agreement for the billing
of mobile calls made by Telemetry Devices.
1.3 For each Telemetry Device registered to transmit calls or actually making
calls that will be billed by the CERILLION Software, TELEMETRIX will remit
the sum of thirty-five cents (USD 0.35) per month to CERILLION. The
definition of Recurrent Fee shall be extended accordingly.
1.4 The "Exclusive Date" is defined as the date three calendar months from the
date of execution of this Schedule.
1.5 Where TELEMETRIX has the requirement to ▇▇▇▇ for calls made by Telemetry
Devices, TELEMETRIX shall exclusively use the CERILLION Software for this
purpose , such restriction to apply for a period of three years from the
Exclusive Date, excepting that, in the event that CERILLION cannot supply
an upgrade to the Software to provide a billing solution for such
technology within 60 days of the date of execution of this Schedule,
TELEMETRIX may utilise another solution until the CERILLION upgrade is
available.
1.6 For the avoidance of doubt, no extension of the Initial Services is
provided by this Schedule.
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