REPRESENTATIVE AGREEMENT
THIS REPRESENTATIVE AGREEMENT (the "AGREEMENT") by and between GILAT DO
BRAZIL LTDA., a limited liability company organized under the laws of Brazil
with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇,▇▇▇ de Janeiro RJ 22290-160 ("GILAT"), and RSTAR CORPORATION, a
corporation organized under the laws of Delaware with its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇.▇. (the
"REPRESENTATIVE"). RECITALS
A. Gilat markets, and sells certain VSAT satellite communication products and
provides services related thereto (the "PRODUCTS").
B. In October 2002, Gilat was awarded a contract for the provision of the user
care service of the Electronic Government - Citizen Care Services - "GESAC
program" by the Ministry of Communication in Brazil (the "GESAC CONTRACT").
C. Since October 2002, the Representative has acted on behalf of Gilat to
market broadband Internet access service in an effort to refine the terms
of the GESAC Contract in a manner that is more profitable to Gilat, all as
provided in this Agreement.
D. Gilat and the Representative wish to formalize in writing the remuneration
to the Representative that has been agreed by the parties for the services
supplied to Gilat.
Now, therefore, in consideration of the promises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto agree as
follows:
1. ENGAGEMENT
1.1 Gilat has engaged the Representative, and the Representative has
agreed to be engaged by Gilat and undertaken, to perform the Services
(as defined in Section 1.2 below) in relation to the GESAC Contract,
all in accordance with Gilat's directions received from time to time
and in accordance with the terms and conditions of this Agreement.
1.2 SERVICES. For the purposes of this Agreement, the "Services" that
Representative, either directly or through its subsidiary in Brazil,
has provided to Gilat shall include and mean the marketing of
broadband Internet access services and voice services for consumers in
Brazil to be provided for by the Ministry of Communications in the
GESAC Project. Such Services shall include:
(a) negotiation on behalf of Gilat and improvement of profitability
of GESAC Project terms with the Ministry of Communication and the
Ministry of Education of Brazil;
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(b) facilitation of communication and liaison between Gilat on the
one part and each of the parties related to the GESAC Contract;
(c) facilitation of receipt of the first payment made to Gilat by
GESAC;
(d) coordination of administrative arrangements and/or responses to
GESAC inquiries;
(e) informing Gilat on a regular basis, of the nature and content of
Representative's communications with GESAC.
2. SCOPE AND LIMITATIONS OF REPRESENTATIVE'S AUTHORITY
2.1 The Representative agrees and acknowledges the following:
(a) The Representative has not and shall not provide any services in
relation to any person other than in relation to GESAC.
(b) The Representative has not and shall not make any
representations, warranties, guarantees, or commitments beyond
those which Gilat has from time to time authorized, and
Representative has obtained Gilat's approval prior to providing
any technical and pricing quotes to GESAC.
(c) Nothing herein shall prevent Gilat from dealing directly or
indirectly with GESAC, and Gilat reserves the right to appoint
any other person or entity to perform any or all of the Services
subject to Section 3.2 below.
(d) The Representative reports to Gilat's marketing manager
responsible for Brazil.
2.2 RELATIONSHIP. This Agreement does not create an employer-employee or
agency relationship, or a joint venture or partnership between Gilat
and the Representative. The Representative is engaged as and shall be
an independent contractor only. The Representative shall be solely
responsible for all persons and entities which Representative engages
to carry out any or all of its obligations under this Agreement.
2.3 AUTHORITY. Neither party shall have the authority to act for or bind
the other in any way, to execute agreements on behalf of the other, or
to represent that either party is in any way responsible for the acts
or omissions of the other. The Representative has made its consulting
status known to all persons with which or whom it deals. Nothing
contained in this Agreement shall constitute or appoint the
Representative as the agent or representative of Gilat except as
expressly provided under the terms of this Agreement.
2.4 MANNER OF PERFORMANCE. The Representative shall conduct its activities
pursuant to this Agreement in a manner that will reflect favorably on
Gilat, and shall avoid any deceptive or misleading practice.
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3. GILAT'S RIGHTS AND RESPONSIBILITIES.
3.1 Gilat has and shall continue to (i) promptly respond to the
Representative's requests for information regarding the Products, and
(ii) provide the Representative with sales, technical, and program
management support whenever this is deemed by Gilat to be necessary to
advance Gilat's business interests in the GESAC Project. Gilat may, in
Gilat's sole discretion determine the acceptability of any order or
contract provision or any conditions proposed by GESAC. all orders by
GESAC for the Products shall become effective and binding only if and
when accepted by Gilat in writing.
3.2 Gilat may engage any consultant or agent other than the Representative
to perform the Services for a transaction with GESAC, provided that
Gilat shall pay to the Representative the commission specified in
Section 5 below as if Gilat had not engaged such other consultant so
long as the Representative is in full compliance with this Agreement.
4. SALE OF PRODUCTS TO GESAC.
4.1 The Representative agrees and acknowledges that subject to the terms
hereof, all of the Products shall be sold by Gilat to GESAC and Gilat
shall be responsible for issuing invoices to GESAC and for collecting
the purchase price and other charges due therefor.
4.2 The Representative acknowledges that GESAC will be required to make
payment to Gilat in accordance with Gilat's terms and conditions as
notified to the Representative from time to time unless Gilat
otherwise expressly agrees in writing at the time of the order.
5. COMPENSATION AND EXPENSES.
5.1 COMMISSION. For the Services received beginning in November 2002,
Gilat shall pay Representative a commission equal to three and one
half percent (3.5%) of the gross proceeds of the GESAC project.
5.1.1 "Gross Proceeds" means the amount of the GESAC Project, as per
the contract for provision of user care service of the GESAC
Program - Electronic Government Citizen Care Service, Contract
No. 29/2002-MC to be received by Gilat from GESAC, inclusive of
all taxes, financing costs and any other expenses incurred by
Gilat in the sale of the Products, as reflected in the GESAC
Contract.
5.2 PAYMENT TIME. Commission shall be payable upon execution of this
Agreement.
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5.3 NO PAYMENT FROM CUSTOMER. The Representative shall neither require nor
receive, directly or indirectly, any commission and/or other form of
payment from GESAC.
5.4 REPRESENTATIVE'S EXPENSES.The Representative shall be responsible for
all of its expenses in connection with this Agreement such as, but not
limited to, salaries, office expenses, correspondence, advertising,
and any and all taxes imposed on the Representative. However, in
respect for such expenses for which Gilat gave its express advanced
written consent to the Representative, Gilat shall reimburse the
Representative in respect of such expenses incurred by the
Representative in the course of providing the Services, so long as the
Representative provides actual receipts and such expenses are
reasonable.
5.5 The commission payments shall be made in U.S. dollars by wire transfer
to the Representative's designated bank account as notified to Gilat
by Representative. No commission shall be paid, or if already paid
such payment shall be refunded to Gilat by the Representative, if and
to the extent any applicable government law, rule, or regulation
(including the laws of the U.S., Israel, or Brazil) prohibits or makes
improper the payment of any fee, or other compensation to the
Representative.
6. TERM.
6.1 TERM. This Agreement shall be deemed effective as of October 4, 2002
through June 30, 2002.
7. CONFIDENTIALITY OF INFORMATION.
7.1 OBLIGATION OF CONFIDENTIALITY. Gilat may make available to the
Representative information of a confidential nature including, but not
limited to, technical data, test and analysis data, marketing,
application, financial, bookkeeping, business, and customer
information in a written or oral form. The Representative shall
maintain the confidentiality of such information and shall treat such
information with the same care as it would exercise in the handling of
its own confidential or proprietary information, but in no event with
less than reasonable care. In no event shall such information be
disclosed to any third person or entity including employees,
consultants and/or contractors and/or potential and actual customers,
unless such person or entity is bound by or specifically undertakes a
like obligation of confidentiality. In addition, the Representative
shall not use such information without the prior written consent of
Gilat and only as necessary to carry out the terms of this Agreement.
Upon termination or cancellation of this Agreement for any reason, all
such data, proprietary information, and confidential information of
Gilat or relating to this Agreement shall be immediately returned by
the Representative to Gilat and the limitations and undertakings
specified in this paragraph shall remain in effect.
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7.2 EXCEPTIONS. Confidential information as referred to in this Section 7
shall not include information (i) which is or becomes public knowledge
through no fault of the Representative; (ii) which is known to the
Representative at the time of disclosure by Gilat as evidenced by the
Representative's written records; or (iii) which is disclosed to the
Representative on a non-confidential basis by a third party having no
obligation of secrecy to Gilat.
8. PROPRIETARY RIGHTS AND MARKS.
8.1 The Representative acknowledges and agrees that all proprietary rights
in the Products and in documents related thereto, including but not
limited to patents, copyrights, and trademarks (the "Proprietary
Marks"), are and shall remain at all times the exclusive property of
Gilat and/or its affiliates. The Representative shall not have or
acquire any right, title, or interest in the Proprietary Marks, or in
the goodwill thereof.
8.2 The Representative is granted a limited, non-exclusive license to use
Gilat's Proprietary Marks solely for the purposes of promoting the
Products and fulfilling its obligation under this Agreement and solely
for the term of this Agreement. The Representative shall not use any
business cards which have a Gilat logo on them without the express
written consent of Gilat. Upon termination of this Agreement, the
Representative shall immediately return to Gilat all advertising,
sales, or promotional material of or concerning the Products and/or
the Proprietary Marks.
9. WARRANTIES; COMPLIANCE WITH LAW.
9.1 WARRANTY. The Representative represents and warrants that: (i) on the
date hereof, it is free to be engaged by Gilat upon the terms
contained in this Agreement and there are agreements including any
employment contracts, consulting contracts or restrictive covenants of
any kind and nature preventing full performance of the
Representative's duties hereunder, and that there will be no such
conflicts during the term of this Agreement, and (ii) it shall not
utilize during the term of this Agreement any proprietary information
of any third party. In addition, the Representative hereby represents
and warrants that there presently exists no conflict of interest which
would prevent the Representative from acting in the best interests of
Gilat and that such a situation will not exist during the term of this
Agreement.
9.2 COMLIANCE WITH LAWS. In performing this Agreement, the Representative
represents and warrants that it shall comply with all applicable laws,
rules, and regulations of the territories in which Representative
performs its activities and shall indemnify and hold harmless Gilat
from the Representative's failure to do so. Without limiting the
foregoing, the Representative and its employees or agents have not and
will not make or promise to make any payment in violation of the
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U.S. Foreign Corrupt Practices Act or relevant similar law, and no
owner, partner, officer, director, or employee of the Representative
or of any affiliate company of the Representative is or will become an
official or employee of any government during the term of this
Agreement without the prior written approval of Gilat.
9.2.1 In the event Gilat has reason to believe that a breach of
any of the representations and warranties in Section 9.2 has
occurred or may occur, Gilat shall have the right to audit
the Representative in order to satisfy itself that no breach
has occurred. The Representative shall fully cooperate in
any audit conducted by or on behalf of Gilat.
9.2.2 In the event of a breach of any of the representations and
warranties in Section 9.2, this Agreement shall be void ab
initio without the requirement of any written notice of
cancellation. Any claims for payment by the Representative,
including claims for sales or services previously concluded
or sales or services previously rendered shall be
automatically terminated and cancelled and all commission
payments previously paid shall be forthwith refunded to
Gilat by the Representative. The Representative shall
further indemnify and hold Gilat harmless against any and
all claims, losses or damages arising from or related to
such breach or the cancellation of the Agreement, or both.
10. INDEMNITY/LIMITATION OF LIABILITY.
10.1 Gilat shall have no liability to the Representative with respect to
claims arising out of, in connection with, or resulting from this
Agreement or the performance thereof, whether in contract, tort
(including negligence of any degree) or otherwise, except for the
payment of compensation under the terms of this Agreement.
10.2 The Representative shall indemnify Gilat and its employees from and
against all claims, liabilities, damages, losses, costs and expenses,
including legal fees, arising out of the performance of the
Representative under this Agreement that are caused in whole or in
party by the Representative's negligent act, error, or omission, or
that of anyone employed by the Representative, or the breach of or
failure to comply with any provision of this Agreement.
10.3 Subject to and without derogating from Section 10.2 above, in no event
shall either party be liable for incidental, indirect, special or
consequential damages (however arising) and whether in respect of
damages to or loss of property or equipment, including, but not
limited to, loss of profit, loss of use, loss or revenues or damages
to business or reputation arising out of the performance or
non-performance of any aspect of this Agreement.
11. MISCELLANEOUS PROVISIONS.
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11.1 ASSIGNMENT. It is understood and agreed that the Representative may
not assign or subcontract in whole or in part any interest of this
Agreement without the prior written consent of Gilat. This Agreement
shall be binding upon and inure to the benefit of the heirs,
successors and permitted assignees of the parties hereto.
11.2 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties relative to the subject matter contained herein
and supersedes all other agreements, oral and written, heretofore made
between the parties. Any amendment hereto must be in writing and
signed by an authorized representative of each of the parties. If any
one or more of the terms of this Agreement shall for any reason be
held to be invalid or unenforceable, such term shall be construed in a
manner to enable it to be enforced to the extent compatible with
applicable law. Any determination of the invalidity or
unenforceability of any provision of the Agreement shall not affect
the remaining provisions hereof unless the business purpose of this
Agreement is substantially frustrated thereby.
11.3 NOTICES. All notices and requests required or authorized hereunder,
shall, except where specifically provided otherwise, be given either
in writing by personal delivery to the party to whom notice is to be
given, or sent by registered mail, addressed to the party intended at
its address set forth in the caption above or by telex, cable, or
facsimile. The date of delivery, telex, cable or facsimile in the case
of personal delivery or the date upon which it is deposited in the
mail in the case of notice by mail, shall be deemed to be the notice
date.
11.4 WAIVERS. The waiver by either party of any breach or alleged breach of
any provision hereunder shall not be construed to be a waiver of any
concurrent, prior or succeeding breach of said provision or any other
provision herein.
11.5 GOVERNING LAW AND JURISDICTION. This Agreement and the rights and
obligations arising under or in connection with this Agreement,
including the construction, validity, performance and termination
thereunder, shall be governed, construed and determined in accordance
with the laws of the State of Delaware (excluding instances where
conflict of laws rules would require the application of the laws of
another jurisdiction). The appropriate courts in Delaware, shall have
full and exclusive subject matter jurisdiction and shall have full and
exclusive personal jurisdiction over the parties in connection with
any controversy, claim, or action arising out of this Agreement;
provided, however, that claims for injunctive relief may be brought
before any court of competent jurisdiction.
11.6 ENGLISH LANGUAGE. This Agreement and all communications between the
parties shall be in ----------------- the English language.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written below.
GILAT DO BRAZIL LTDA. RSTAR CORPORATION
("GILAT") ("REPRESENTATIVE")
Signature: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Signature: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Attorney-in-Fact Title: Chief Executive Officer
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Date: June 30, 2003 Date: June 30, 2003
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