AGREEMENT FOR VOIP SERVICES
---------------------------
THE UNDERSIGNED:
1. DIGITRAD FRANCE SARL, a SOCIETE A RESPONSABILITE LIMITEE, company
incorporated under the laws of France, having its offices at sis 473,
route des Dolines in Valbonne - Sophia Antipolis - Villantipolis
n(degree)6 - ▇▇ ▇▇▇ - ▇▇▇▇▇, ▇▇▇▇▇▇, registered with the Grasse Registry
of Commerce and Companies under the number B 428 685 168 and hereby duly
represented for the purposes of this agreement by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in
his quality of "Gerant", duly empowered hereafter also to be referred to
as "PROVIDER",
and
2. TELEPLUS GROUP, an company incorporated under the laws of United
States, having its offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ hereby duly represented for the purposes of this agreement
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in his quality of Chief Executive Officer, duly
empowered hereafter also to be referred to as "CUSTOMER",
Both parties are hereafter also to be referred to as "PARTIES";
TAKING INTO CONSIDERATION THAT:
o Provider provides Voice over Internet which means that it provides
software (hereinafter "SOFTPHONE") which transmits voice communication
by means of the Internet. (hereinafter "VOIP SERVICE"). Installing this
software allows End Customers to communicate with any other End
Customer by means of their computers and the Internet access that they
arrange for themselves and allows End Customers to make and receive
communications from the Public Switched Telephone Network.
o Furthermore, Customer wishes to be allowed the use of Provider numbers
for the duration of this Agreement in order for its customer to be able
to receive the communications on Provider's VoIP service.
o Customer agrees to develop under his trademark a Customer's VoIP
service powered by Provider. Softphone to be downloaded from Customer's
Website. Customer intends to integrate Softphone into Customer's
Website and to market such Softphone and VoIP Service to End Customers.
o Parties wish to lay down their respective rights and obligations in
this Agreement.
HAVE AGREED AS FOLLOWS:
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1. DEFINITIONS
1.1 The following capitalised terms will have the meaning as set forth
hereunder, either in the singular of in the plural form.
AGREEMENT: this agreement and the Exhibits hereto;
CALL: a transmission path through the internet and
the PSTN infrastructure for the conveyance
of signals for the purpose of voice
telephony services;
END CUSTOMERS: the party with whom Customer has entered
into an agreement for the provision of VoIP
services;
EXHIBIT: exhibit to this Agreement;
INCOMING SERVICE: service consisting of the routing of all
communication that originate on the PSTN and
is meant for the telephone numbers used by
End Customers, to the VOIP-PSTN gateway;
OUTCOMING SERVICE: service consisting of the receiving
of a communication, that originates on the
Internet, on the VOIP-PSTN Gateway as well
as the transport of the transportation from
the VOIP-PSTN gateway to numbers implemented
on Provider infrastructure, or implemented
on the infrastructure of third parties with
whom Provider has entered into an
interconnection agreement, for completion of
the communication by Provider;
SOFTPHONE means a Provider supplied downloadable
computer software capable of delivering
Service.
TAB SERVICE means one or more specific areas of
real estate within the Softphone which can
be clicked by End Customers to browse
contents supplied by Provider or Customer.
PSTN-USER: a person who receives the communication on
the Public Switched Telephone Network;
SERVICE: the services provided by Provider under this
Agreement as well as the provision of
Provider's telephone numbers to End
Customers
VOIP-PSTN GATEWAY: the equipment used to provide the electronic
`bridge' from the Internet to the PSTN;
WORKING DAYS: Monday to Friday, with the exception of
public holidays in France;
CUSTOMER'S WEBSITE: any and all elements and contents of the
website available - amongst other URLs -
under the URL ▇▇▇.▇▇▇.▇▇▇ , from which
website the Softphone can be downloaded;
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2. PROVISION OF THE SERVICES
2.1 Company shall provide the Service in accordance with the Service
Description attached hereto as Exhibit A.
2.2 The Service shall be put into service within a reasonable period of
time, but not later than 45 days, after the date of signing the
Agreement or any other date agreed upon by the Parties. Prior to the
provision of the Service, Parties shall come to an agreement on tests
for the Service based on industry agreed processes and criteria. Upon
successful completion of such tests, Provider shall deliver to Customer
a `Ready for Service Notification'. Delay in the provision of the
Service shall not be taken into account in the event that it is due to
the conduction of tests. In any event that the test evidence the
existence of anomalies, Provider shall remedy any such defects found in
a prompt manner.
2.3 In addition, it is hereby expressly agreed by Customer that it shall,
at all times collaborate with Provider in order to enable it to make
the Services available at the agreed date and to conduct satisfactory
and successful tests.
2.4 The Service shall be maintained by Provider. Faults in the Service
shall be restored in accordance with EXHIBIT D.
2.5 In the event that Customer will be required to provide operator
assistance, directory enquiry services, Provider will use its best
efforts to provide all necessary assistance in order to fulfill these
obligations. By entering into this Agreement Customer acknowledge and
agree that the Service cannot be used for emergency calling. None of
Provider's services carry or support, or intend to carry or support
emergency calls.
2.6 Parties shall supply to each other forecasts in accordance with EXHIBIT
A.
3. PROVISION OF NUMBERS
3.1 Each of the Parties acknowledges having obtained or undertakes to
obtain and to maintain, at any time, any and all authorization (or
declaration) necessary to execute its obligations under the Agreement
and/or to use the Service.
3.2 Provider will be use its best endeavour to allow the use of Provider's
telephone numbers by End Customers, after having received a written
request of Customer thereto.
3.3 Parties agree that the use of the telephone numbers by Customers does
not constitute any transfer of any property or other rights with regard
to the telephone numbers and Customer consequently acknowledges and
accepts to follow Provider's instructions in connection with the use of
the telephone numbers including but not limited to instruction
resulting directly from competent authorities. For the avoidance of
doubt, it is hereby clearly agreed that "competent authority" shall be
understood as any governmental and/or private entity having legal,
regulatory and/or customary competence and authority to draft, edict
and enforce laws, rules and/or regulations relating to the activities
of Customer's or Provider's activities.
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3.4 In the event of "under-use" of the telephone numbers resources
allocated, Customer irrevocably undertakes that, upon simple written
request of Provider, to return the unused resources provided that it
has been advised at least thirty days in advance. The expression
"under-use" used in this article shall designate allocated telephone
numbers which, for a period of at least three (3) months have not been
exploited by Customer, i.e., have not received any call over that
period.
3.5 In addition, Customer acknowledges and accepts that telephone resources
are limited and that Provider shall not be held liable for its
inability to provide all or part of the requested telephone numbers.
3.6 Customer will comply with any reasonable instructions given by Provider
with regard to the use of the telephone numbers. Customer will comply
with the requirements of the relevant national numbering plan.
3.7 Customer will provide information with regard to the use of the
telephone numbers, including information with regard to the fulfilment
of the requirements of the number plan, as may reasonably be required
from time to time by Provider.
3.8 Provider will be its best endeavour to keep Customer regularly informed
of the applicable national number plans and the consequences thereof
for Customer and its End Customers.
3.9 Provider may terminate the telephone numbers:
a) by giving three months prior written notice to Customer to take
effect at the end of the minimum period or at any time thereafter.
b) by giving a prior written notice of at least one day, if Provider is
forced to do so by an competent authority.
4. NUMBERPORTABILITY
4.1 If requested by Customer, Provider shall, if possible, use its best
endeavours to transfer the telephone numbers that have been given in
use to End Customers, to any electronic communications network or
service provider. Provider will use all reasonable endeavours to effect
such a transfer and as soon as possible taking into account any other
provider's lead times.
4.2 In any case, it however specified and agreed that Provider shall solely
be under the obligation stated above if the operator to which the
telephone number has to be transferred (i) has complied with all
relevant and applicable legislation for portability ; (ii) evidences
that it is entitled, under the legal provisions applicable to it, that
it is entitled to provide the Service ; and (iii) has concluded with
Provider a portability agreement.
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4.3 All costs relating to such portability shall be borne solely by
Customer.
5. EQUIPMENT
5.1 All equipment provided by one Party in connection with this Agreement
shall remain the property of that Party. Each Party will comply with
any reasonable instruction of the other regarding such equipment.
Equipment on the other Party's premises will be kept secure and not
interfered with by any person. Upon termination of this Agreement,
Parties will ensure access to any relevant site to remove equipment and
will make sure that all necessary authorizations to do so are obtained.
5.2 In the event of co-location, parties shall comply with all reasonable
requests for access when one Party requires access to the other Party's
premises in order to maintain equipment or to ensure the continued
provision of the Service.
6. PROVISION OF INFORMATION
6.1 Each Party will promptly provide, free of charge, any information,
including but not limited to information on protocols in use by it, as
is reasonably required from time to time by the other Party for the
implementation, use or provision of the Service and the telephone
numbers allocated to End Customers.
6.2 The provisions of the Agreement and the information, whether written or
oral and which are not in the public domain and relating to this
contract (hereinafter the "CONFIDENTIAL INFORMATION"), shall be kept
confidential and not be disclosed, in whole or in part, to any other
person than the managers, directors, employees or representatives of a
Party needing to have knowledge of the Confidential Information in
order to negotiate, sign and execute this Agreement (collectively the
"REPRESENTATIVES"). Said Confidential Information shall not be used for
any other means.
6.3 Each Party undertakes to inform its Representatives of the private
nature of the Confidential Information and to command these persons to
treat these Confidential Information in accordance with the provisions
of this Section. The Parties shall be authorized to disclose
Confidential Information (i) on order issued by a court or tribunal or
by a duly empowered administrative body, (ii) upon request or order of
a duly empowered agency, competent authority or regulatory body or in
accordance with a regulation of such, (iii) if reasonably necessary in
the course of an action raised in application of the Agreement, (iv) to
the independent legal counsels or auditors of a Party (v) to the
sub-contractors of a Party, and (vi) to any authorized assigned in
accordance with the Agreement, provided that the assignee undertakes,
in writing, to be bound by the provisions of this article.
6.4 This section shall apply for the entire Term of this Agreement and
shall be maintained at its expiry for a three (3) year period.
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7. IP ADDRESSES AND GENERAL INFORMATION
7.1 If necessary, Customer shall use reasonable endeavours to provide the
IP-addresses and/or other relevant general information of Customers to
Provider for the purpose of routing calls, billing each other and
agreed administrative use. Provider shall only use such information in
accordance with the applicable law. In the event that Customer fails to
provide such information to Provider, it is understood and agreed
between the Parties that such failure could impact the provision of the
Services by Provider and that consequently Provider shall in no case be
held liable for any subsequent delay or incapacity to provide the
Services.
8. PRIVACY AND SAFETY
8.1 Provider shall use its best endeavours to guarantee the confidentiality
of communications via its Service, with due compliance with the
applicable obligations and exceptions laid down by mandatory law and
regulation.
8.2 Provider shall process personal and traffic data, which is needed to
provide a proper Service, in accordance with the applicable law and
regulations. Provider shall take organizational and technical measures
it deems, to the best of its knowledge, as relevant and appropriate to
protect the personal and traffic data and shall not retain it longer
than required in order to provide the Services or as required by
applicable law and regulations.
8.3 Provider shall comply with statutory obligations to provide information
(including personal and/or traffic data), for example in the context of
a criminal investigation.
8.4 Provider guarantees that it will meet its (statutory) obligation to
retain and provide traffic data and/or to install wiretapping equipment
in order to intercept communication if expressly required to do so by
any competent body.
8.5 In the event that a designated competent authority requests Customer to
retain and provide traffic data and/or to install wiretapping equipment
in order to intercept communication, Provider will provide Customer
with all necessary assistance and information in order to meet these
requests.
9. RATES AND CHARGES
9.1 For providing Softphone which enables the End Customer communications,
Customer will pay Provider the charges stated in Exhibit B to this
Agreement. For the Service, Customer will pay Provider the charges
stated in Exhibit B. Charges shall be calculated based on one (1)
second intervals of the Call by the applicable rate. No charges will be
payable for the conveyance of any Call which is not answered.
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9.2 Unless otherwise stated all rates and charges shall be exclusive value
added tax (VAT) or any other applicable tax.
10. TERMS OF PAYMENT
10.1 The charges shall be payable from the date Customer has received the
`Ready for Service Notification' mentioned in SECTION 2.2.
10.2 No charges shall be payable under this Agreement by Customer to
Provider unless such charges are specifically referred to in this
Agreement.
10.3 Provider shall provide to Customer invoices of all charges due,
calculated in accordance with the provisions of EXHIBIT B AND EXHIBIT
C, within 15 days after the end of each month. The invoices are due and
payable in Euro.
10.4 Customer will pay the charges due under this Agreement within 30 days
of the date of the invoice. If Customer does not fulfil its payment
obligation within this period, Provider shall will send a reminder
stating a new payment period. If Customer does not make payment within
this new period, Provider is entitled, at its sole discretion,
automatically, as of right and without the need for a jurisdiction of
any kind to confirm it, to: (i) charge the overdue amounts with
interest at a rate equal to the latest EURIBOR rate increased by four
(4) points; (ii) suspend the service until satisfactory payment of all
overdue payments (including their interest) is issued; or (iii)
terminate this Agreement. Recourse to either or all of the
aforementioned remedies shall in no case prevent Provider from having
recourse to another of said remedies and/or raise any action which it
may have in this respect.
10.5 For the purpose of this Agreement, Provider grants Customer a credit
limit, for the use of the Outcoming Services, at an amount of thirty
thousand euros ((euro) 30.000) (the "CREDIT LIMIT"). In the event that,
during an invoicing period Customer reaches the Credit Limit, Provider
shall be entitled, at its sole discretion, automatically and as of
right, to suspend provision of the Services and send an invoice to
Customer for the total amount of use of the Services. Provider shall
then solely restore provision of the Services upon payment by Customer
of the entirety of said invoice which shall be subject to the
provisions of SECTION 10.4 above. In addition, it is expressly agreed
between the Parties that the Credit Limit is in no event limited to a
single invoicing period and that consequently, its calculation shall
run until receipt of the amounts due under the latest invoice issued by
Provider.
10.6 If Customer disagrees on the amount of an invoice, it will inform
Provider in writing within thirty (30) days of the date of the invoice.
Such contestation shall clearly underline and justify Customer's
contestation of the invoice.
10.7 In the event that Customer contests all or part of an invoice in
accordance with the provisions of SECTION 10.7 above, it shall in any
case issue payment of the uncontested amounts of the concerned invoice
by the due date such as provided for in SECTION 10.4. above.
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10.8 Notwithstanding anything in the above provisions, the Parties hereby
expressly acknowledge and agree that the CDRs issued by the Service
Provider's System will be used as the basis of the invoicing of
Customer and for the calculation of the charges. Consequently the
Parties agree that, such CDRs shall be the sole element taken into
account for invoicing and Customer hereby expressly waives any right to
contest said CDRs unless it can duly evidence a fraud or a manifest
error of the Service Provider's system.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All intellectual property rights regarding the Services, including but
not limited to the software and documentation that is used therefore,
developed and/or owned by a Party shall be and shall remain the sole
property of that Party. Neither the delivery of any services nor this
Agreement implies any transfer of intellectual property rights.
11.2 Parties will only obtain a non-exclusive and non-transferable right for
the use of the Services for the agreed objectives. Parties commit
themselves to adhere rigidly to any conditions, laid down in the
Agreement or imposed in any other way.
12. LIMITATION OF LIABILITY
12.1 It is hereby expressly specified that, in the provision of the
Services, the Parties are solely bound to provide their best efforts.
In this respect, each Party undertakes to provide all reasonable care
and efforts in the provision of the Services.
12.2 Neither Party shall be held responsible for the delays or inexecution
or of its contractual obligations resulting from events which can
reasonably considered as out of its control such as the following
events : governmental decision, meteorological perturbations, strikes
and labour conflicts other than those opposing the concerned Party to
its employees, lack or suspension of the provision of electricity,
thunder or fire, decision of a national or international administrative
authority or of any competent authority, war, public troubles, acts or
omissions of other telecommunications operators or events outwith the
scope of the reasonable control of the concerned Party's providers.
12.3 For the contractual obligation to make timely payment of the invoices
such as mentioned above, neither Party shall be held liable, for any
reason whatsoever, of the following damages :
a) Loss of revenues, activities, contracts, clientele, savings,
profits or data - the terms "loss of savings" shall mean any
expense which one of the Parties intends to avoid or to
undertake at a lower cost thanks to the use of the Services ;
or
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b) Any indirect damage likely to intervene in the course of
execution of the Agreement.
12.4 In additon, each of the Parties is solely and exclusively responsible
of the provision of its own Services to its clients and resolves with
them the disputes which could arise in the occasion of the provision of
the Services.
12.5 In the event that one of the Parties shall be held liable in connection
with the execution of its obligations under the Agreement, it is hereby
expressly specified that its liability shall not exceed fifty thousand
euros ((euro) 50.000) for any one direct damages or to one hundred
thousand euros ((euro) 100.000) for any series of direct damages
resulting from the same facts within a twelve (12) months period.
12.6 The provisions of this Section limitatively include all conditions
applicable to the liability of each of the Parties in the frame of the
execution of the Agreement.
13. TERM, TERMINATION AND SUSPENTION
13.1 The Agreement is concluded for an initial term of twelve (12) months
(the "INITIAL TERM"), as of the date of signature of the Agreement, and
shall be tacitly renewed for an indeterminate period of time (the
"RENEWAL TERM") at the expiry of the Initial Term.
13.2 Either Party shall be entitled to terminate the contract either one (1)
month prior to the expiry of the Initial Term or during the Renewal
Term with a one (1) month prior notice sent to the other Party in
accordance with the forms hereinafter defined.
13.3 In the event of a failure to meet any of its essential obligations
resulting from the Agreement and including -but not limited to - the
obligation to make payment of the invoices such as defined in SECTION
10 above, the non-defaulting Party shall send the defaulting Party a
notice of default specifying the nature of the default with regard to
the Agreement.
13.4 If the defaulting Party has not remedied to its default within five (5)
days of sending of the default notice, the non-defaulting Party shall
then be entitled, by sending to the defaulting Party a termination
notice, to unilaterally, automatically and without the need to have
recourse to any court or tribunal, declare the termination of the
Agreement. Such termination shall therefore be immediate and shall take
effect at the date of sending of the termination notice.
13.5 In addition, notwithstanding the above and as far as that is allowed by
the applicable legal provisions, either Party shall be entitled to
unilaterally, automatically and without the need to have recourse to
any court or tribunal, declare the termination of the Agreement if the
other Party files for or is filed for (i) a conciliation or
rescheduling procedure for its debts towards its creditors, (ii) an
assistance procedure for companies facing difficulties, and (iii) a
bankruptcy or winding-up procedure or any similar procedure.
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13.6 The fact, for the non-defaulting Party not to exercise its right to
terminate the Agreement in the event of occurrence of one of the
unilateral termination cases mentioned above, shall in no event be
construed as a waiver of the right to eventually have recourse to this
right later on.
13.7 The exercise of its termination right by either Party in the cases
mentioned in the Agreement shall in no case affect or hinder their
rights to raise any and all claims, actions or procedures available to
them nor their eventual rights to damages before the competent
jurisdictions.
13.8 Provider may suspend or block access to a Service without notice for
any of the following reasons: (a) to comply with any law, regulation,
court order, competent authority, or other governmental request or
order requiring immediate action; (b) to prevent interference with,
damage to, or degradation of Provider's network, equipment, system ;
(c) the Service is used in a manner that violates any applicable law,
regulation, or the obligations resulting from the Agreement, or
otherwise exposes Provider to legal liability, whether this use is by
Customer or any other entity or person using the Service and whether or
not this use is authorized or consented to by Customer; or Customer
does not pay an amount when due.
14. ASSIGNMENT
14.1 Parties may not assign, or otherwise transfer, this Agreement, or any
rights or obligations hereunder without the other Party's written
consent (which consent shall not be unreasonably withheld or delayed),
always provided that each Party may, on written notice, assign,
transfer or otherwise dispose of any or all rights hereunder to an
affiliate of such Party. For this purpose affiliate shall mean "any
company that, directly or indirectly, (a) is owned or controlled by
Party (b) owns or controls Party, or (c) is owned or controlled by a
company controlling Party at the time in question. For this purpose,
ownership (directly or indirectly) of at least fifty percent (50%) of
the shares or voting rights of the company shall be deemed to
constitute ownership or control thereof."
15. NOTICES
15.1 All notices concerning the Agreement and the execution thereof will be
send in writing, including but not limited to e-mail messages to:
PROVIDER
Commercial Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇
Email: ▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Billing Contact: ▇▇▇▇▇▇▇▇ Franceze
Email: ▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Fault Reporting (Technical) Contact: Arnaud Covez
Phone: + ▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
Email:▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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CUSTOMER
Commercial Contact:
Address
Place
Phone/fax/e-mail
Billing Contact:
Phone:
Email:
Fault Reporting (Technical) Contact:
Phone:
Email:
15.2 Parties will inform each other immediately in case of change of address
or change of contact.
16. DISPUTES
16.1 If a Party wishes to invoke the dispute procedure specified in this
article, it shall send written notice of the dispute to the other
Party. The notice shall contain all relevant details including the
nature and the extent of the dispute. The receiving Party shall
acknowledge the receipt of such notice of the dispute within two (2)
Working Days.
16.2 Following this notice, Parties shall consult in good faith to try to
resolve the dispute. If agreement has not been reached within fourteen
(14) Working Days, either Party may refer the dispute to the CFO and
shall forthwith send a copy of the referral to the other Party. Should
the Parties fail to reach an agreement through this conciliation
procedure, they shall then refer the matter in accordance with the
provisions of SECTION 17 hereunder.
16.3 This procedure is without prejudice to any other rights and remedies
that may be available in respect of any breach of any provision of the
Agreement.
17. GOVERNING LAW
17.1 The Agreement shall be governed by the laws of France.
17.2 Any dispute arising in connection with this Agreement which cannot be
resolved by diligent negotiations in good faith shall be finally
settled in arbitration in accordance with the Rules of Arbitration of
the Nice (France - 06) Chamber of Commerce or equivalent. The place of
arbitration shall be Grasse (France - 06) Trade Tribunal and the French
language shall be used in the proceedings.
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18. MISCELLANEOUS
18.1 EXHIBIT A, B, C AND D are part of this Agreement. If the contents of
any Exhibit contradict one or more of the provisions of this Agreement,
the provisions of this Agreement shall prevail.
18.2 The Agreement constitutes the true and entire agreement between Parties
with respect to the subject matter hereof and shall set aside all prior
arrangements.
18.3 The invalidity or unenforceability of any provision of the Agreement
shall not affect the validity or enforceability of the remaining
provisions of this Agreement. In the event that any provision of the
Agreement shall be determined to be invalid, unlawful or unenforceable
to any extent, Parties will mutually agree upon a new provision that
will approximate the contents and scope of the original provision.
18.4 No amendments of this Agreement shall be valid unless it is in writing
and signed by or on behalf of each of the Parties.
18.5 The Failure of either Party to enforce any of its rights under the
Agreement shall not be considered a waiver of that Party's right to
enforce said provision or any other provision included herein.
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Thus declared and signed in twofold in Los Angeles,
On _________________ 2006.
On behalf of Provider: On behalf of Customer:
------------------- -------------------
Name: Name:
Function: Function:
EXHIBITS:
Exhibit A Service Description
Exhibit B Tariffs
Exhibit C Invoicing
Exhibit D End Customer Licence Agreement
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EXHIBIT A SERVICE DESCRIPTION
-----------------------------
1. DESCRIPTION SERVICES
Provider provides Voice over Internet which means that it provides software
which transmits voice communication by means of the Internet. Installing this
software allows End Customers to communicate with any other End Customer by
means of their computers and the Internet access that they arrange for
themselves.
2. DESCRIPTION INCOMING SERVICES
The Service consists of the collection and conveyance of calls directed to
telephone numbers allocated to Customer up to the VOIP-PSTN gateway. For this
purpose, telephone numbers are allocated by Provider to Customer upon express
written request of the latter. On request, Provider shall use its best endeavors
to allocate the resources, including but not limited to telephone numbers,
within thirty days after receipt of Customer's request.
3. DESCRIPTION OUTCOMING SERVICES
The Service consists of the receiving of a Call on the VOIP-PSTN Gateway as well
as the conveyance of the Call from the VOIP-PSTN gateway to numbers implemented
on Provider's infrastructure, or implemented on the infrastructure of third
parties with whom Provider has entered into an interconnection agreement, for
completion of the Call by Provider.
4. SOFTPHONE LICENCE
Provider is willing to supply to Customer for the purpose of combining with
other software products, hardware products, or services that Customer will
include in his Customer's VoIP service and Customer`s Website on the terms and
conditions set forth herein.
Subject to the terms and conditions of this Agreement, Customer shall:
A. Incorporate Softphone into Customer Website and/or Customer's
VoIP service(s);
B. Market, sell and deliver Customer Website and/or Customer's
VoIP service(s);
C. Present the End Customer License Agreement to all prospective
End Customers;
Provider hereby grants to Customer a nonexclusive and nontransferable right and
license during the term of this Agreement to integrate the Softphone with and
incorporate the Sophtphone into Customer's Website and Customer's VoIP
service(s), to copy the Sophtphone, or the Master Media, for use as part of
Customer's VoIP services, and to distribute such copies of the Softphone as part
of the Customer's Website and Customer's VoIP services. Customer shall have no
right to modify or prepare derivative works of Softphone or to possess or use
the source code form of the Softphone.
Any distribution of the Softphone shall be pursuant to the terms and conditions
of the End Customer License Agreement. The End Customer License Agreement
included with all Customer's Website and all copies of Customer's VoIP
Service(s) shall be substantially identical in terms and form to that set forth
in Exhibit D. Customer may, from time to time, change the terms of the End
Customer License Agreement set forth in Exhibit D, however, if the proposed
changes to the End Customer License Agreement substantially affect the rights of
Provider, then such proposed changes will be subject to the review and prior
written approval of Provider, which approval will not be unreasonably withheld.
5. TRAFFIC FORECASTING
Customer shall issue monthly non-binding traffic forecasts enabling Provider to
size its network in consideration of the coming traffic. Said forecasts shall
consist in traffic previsions per destination for the three forthcoming months
as of the date of the forecast.
Customer shall be entitled to review its forecasts monthly. Any modification to
the forecasts shall however be taken into account by Provider as of the second
invoicing period following the invoicing period during which the adjustment was
made by Customer.
14
EXHIBIT B TARIFS
----------------
1. VOIP SERVICE
---------------
For use of the Services, the Parties agree that Customer shall:
- pay Provider intial fee fixed at 96.000 USD (Ninety six thousands US dollars).
Initial fee to be paid in three installments:
- On signature of contract (70% of the amount)
- On delivery a Softphone Beta vsersion (15% of the amount)
- On delivery a `Ready for Service Notification' (15% of the
amount)
- for the first year, the Provider will include in the initial fee 5.000
licenses of the Softphone for the End Customer who would have paid for any of
the Customer's services. For any additionnal license the customer will pay to
Provider annual royalties of 2.50 USD (Two point fifty US dollars) per
additionnal copy of the softphone downloaded by End Customer who have paid for
any of the Customer's services.
- for the first year, the Provider will include in the initial fee 3 Customized
tabs (one per white label client). For any additionnal tab the customer will pay
to Provider annual 35.000 USD (Thirty Five thousands US dollars).
- for the subsequent years, pay to Provider the non-refundable annual royalties
of 2.50 USD (Two point fifty US dollars) per copy of Softphone downloaded by End
Customers who have paid for any of the Customer's services. Billing will be made
quarterly on the basis of the numbers of active licenses. We consider an active
license a user who has paid for any of the Customer's services.
- for the subsequent year, pay to Provider an annual fee for the 3 Customized
tabs (one per white label client) of 35.000 USD (Thirty thousand US dollars).
For any additionnal tab the customer will pay to Provider annual 30.000 USD
(Thirty Five thousands US dollars.
2. REVENUE SHARING.
-------------------
In consideration of management by Provider of Services, Customer agrees to pay
Provider a certain percentage of Customer`s gross revenue resulting from each of
the Customer's services as follows:
a) Outcomming Service (for PSTN termination provided by Customer or by
Provider): Customer shall purchase wholesale termination to Provider and decide
freely of its Outcomming Service pricing.
b) Teltel value added services : Subject to Subsection (d) below, Provider
reserves the rights to market TelTel value added services (VAS) to End
Customers. In this event, Provider shall be entitled to receive 85% for TelTel's
VAS and Customer shall be entitled to receive 15% of the revenues generated for
TelTel's VAS. Provider and Customer will gain approval from each other before
offering any Teltel VAS to insure that there are no conflicts or other issues
that would prevent the offering of those services. Both parties agree to pursue
all reasonable efforts to accommodate the requesting party's desire to offer
VAS.
15
c) Customer Tab Services: Subject to Subsection (d) below, Customer shall pay
Provider 40% of its revenue resulting from advertisements and e-commerce
transactions offered through Customer's Tab monthly. Provider shall pay Customer
25% of its revenue resulting from advertisements and e-commerce transactions
offered through the Teltel Tab monthly.
d) Revenue sharing percentages described in Subsections (c) above shall be
adjusted as follows for all services billed on a per minute basis:
i. Services offered by Provider: Provider shall receive 40% of the
revenue and Customer shall receive 60% of the revenue
ii. Services offered by Customer : Customer shall receive 85% of the
revenue and Provider shall receive 15% (Fifteen Percent) of the revenue
f) Provider and Customer will negotiate in good faith on mutually acceptable
revenue sharing percentages for all other Provider services and Customer
services to be offered to End Customers.
3. VOIP TRAFFIC COLLECTION SERVICE
----------------------------------
- pay Provider amount of the utilization costs for the telephone numbers fixed
at 1.50 USD excl. taxes per number allocated and per month.
16
4. VOIP TRAFFIC TERMINATION SERVICE
-----------------------------------
The utilization costs of the Service are invoiced on one second increments as of
the first second. The rates in the hereunder table exclude taxes.
-------------------------------------------------------------------------------
Country/Region/Type WHOLESALE RATE
US DOLLARS
-------------------------------------------------------------------------------
Afghanistan 0,6189
Afghanistan - Mobile 0,6933
Albania 0,4731
Algeria 0,4344
Algeria - Mobile 0,4344
Algeria-Algiers 0,4344
Andorra 0,1018
Andorra - Mobile 0,4911
Angola 0,4780
Angola - Mobile 0,4780
Anguilla 0,4600
Antigua Barbuda 0,2997
Argentina 0,3009
Argentina - Mobile 0,4161
Argentina-Buenos Aires 0,2692
Argentina-Cordoba 0,0900
Armenia 0,1932
Armenia - Mobile 0,4206
Aruba 1,4344
Ascension 1,1781
Australia 0,0174
Australia - Mobile 0,2572
Australia-Canberra 0,0174
Australia-Shared Cost 0,0174
Australia-Sydney 0,0174
Austria 0,0234
Austria - Mobile 0,3024
Austria - Mobile - Telering 0,3552
Azerbaijan 0,3562
Bahamas 0,1410
Bahrain 0,3454
Bangladesh 0,1020
Bangladesh - Mobile 0,1020
Barbados 0,4617
17
Belarus 0,5001
Belarus - Mobile 0,5001
Belgium 0,0222
Belgium - Mobile 0,3040
Belgium - Mobile (Proximus) 0,2940
Belize 0,5193
Benin 0,2302
Bermuda 0,4620
Bhutan 0,4461
Bolivia 0,2487
Bolivia - Mobile 0,2487
▇▇▇▇▇▇▇-▇▇ ▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 0,3240
Bosnia and Herzegovina - Mobile 0,4911
Botswana 0,4977
Brazil 0,0704
Brazil - Mobile 0,1836
Brazil-Rio de Janeiro 0,0704
Brazil-Sao Paulo 0,0599
Brunei Darussalam 0,1128
Brunei Darussalam - Mobile 0,2910
Bulgaria 0,1449
Bulgaria - Mobile 0,4989
Bulgaria-Sofia 0,0780
Burkina Faso 0,4042
Burundi 0,3045
Cambodia 0,3256
Cambodia - Mobile 0,3496
Cameroon 0,4186
Cameroon - Mobile 0,4186
Canada 0,0150
Cape Verde 0,7150
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 0,2772
Chad 0,7366
Chile 0,0594
Chile - Mobile 0,3226
Chile-▇▇▇▇▇▇▇▇ 0,0594
China 0,0174
China - Mobile 0,0174
China-Beijing 0,0174
China-Guangzhou 0,0174
18
China-Shanghai 0,0174
China-Shenzhen 0,0174
Colombia 0,1518
Colombia - Mobile 0,1648
Colombia-Armenia 0,1518
Colombia-Barranquilla 0,1380
Colombia-Bogota 0,0900
Colombia-Cali 0,0933
Colombia-Medellin 0,1300
Colombia-▇▇▇▇▇▇▇ 0,1432
Comoros and Mayotte 2,0991
Congo 0,2001
Congo Dem Rep 0,6600
Congo Dem Rep - Mobile 0,6600
▇▇▇▇ Islands 2,6400
Costa Rica 1,3300
Costa Rica - Mobile 0,1584
Croatia 0,1192
Croatia - Mobile 0,3724
Cuba 1,5000
Cyprus 0,2151
Cyprus - Mobile 0,2151
Czech Republic 0,0606
Czech Republic - Mobile 0,3390
Czech Republic-Prague 0,0592
Denmark 0,0204
Denmark - Mobile 0,2988
▇▇▇▇▇ ▇▇▇▇▇▇ 13,0440
Djibouti 1,2303
Dominica 0,4366
Dominican Republic 0,1540
Dominican Republic - Mobile 0,2904
East Timor 3,3996
Ecuador 0,2613
Ecuador - Mobile 0,3258
Ecuador-Cuenca 0,2613
Ecuador-Guayaquil 0,2802
Ecuador-Quito 0,2800
Egypt 0,3018
Egypt - Mobile 0,2476
Egypt-Cairo 0,3018
El Salvador 0,2052
19
El Salvador - Mobile 0,2259
Equatorial Guinea 0,4644
Eritrea 0,5505
Estonia 0,9180
Estonia - Mobile 0,9180
Ethiopia 0,8841
Ethiopia - Mobile 0,8841
Falkland Islands 1,1440
Faroe Islands 0,3105
Fiji 0,4758
Finland 0,0759
Finland - Mobile 0,3210
Finland-Helsinki 0,0759
France 0,0156
France - Mobile 0,2147
France-Paris 0,0156
French Guiana 0,7803
French Guiana - Mobile 0,7803
French Polynesia 0,4119
Gabon 0,3792
Gambia 0,4323
Gambia - Mobile 0,4323
Georgia 0,1701
Georgia - Mobile 0,3195
Germany 0,0162
Germany - Mobile (Others) 0,3347
Germany - Mobile Tmobil 0,3347
Germany - Mobile Vodafone 0,3347
Ghana 0,1986
Ghana - Mobile 0,2646
Ghana-Accra 0,1986
Gibraltar 0,0922
Gibraltar - Mobile 0,6372
Greece 0,0628
Greece - Mobile 0,3693
Greece-Athens 0,0588
Greenland 1,2477
Greenland - Mobile 1,2780
Grenada 0,4041
Grenada - Mobile 0,4041
Guadeloupe 0,7491
Guadeloupe - Mobile 0,7491
Guam 0,0940
Guatemala 0,2433
Guatemala - Mobile 0,2433
20
Guinea 0,5712
Guinea-Bissau 1,8454
Guyana 0,6400
Haiti 0,5518
Haiti - Mobile 0,5518
Honduras 0,5280
Honduras - Mobile 0,5280
Hong Kong 0,0179
Hong Kong - Mobile 0,0179
Hungary 0,0753
Hungary - Mobile 0,4236
Hungary-Budapest 0,0753
Iceland 0,0813
Iceland - Mobile 0,5001
India 0,2100
India - Mobile 0,2100
India-Ahmedabad 0,2100
India-Bangalore 0,2100
India-Hyderabad 0,2100
India-Madras 0,2100
India-New Delhi 0,2100
Indonesia 0,1139
Indonesia - Mobile 0,1832
Indonesia-Jakarta 0,1139
Iran 0,3000
Iran - Mobile 0,3201
Iran-Tehran 0,3000
Iraq 0,6070
Ireland 0,0174
Ireland - Mobile 0,2556
Ireland-Dublin 0,0372
Israel 0,0509
Israel - Jerusalem 0,0606
Israel - Mobile 0,1679
Israel - Mobile - Palestine Region 0,1079
Israel - Palestine Region 0,1079
Italy 0,0174
Italy - Mobile 0,3314
Jamaica 0,3622
21
Jamaica - Mobile 0,3622
Japan 0,0323
Japan 0,0323
Japan - Mobile 0,1962
Jordan 0,3076
Jordan - Mobile 0,3628
Kazakhstan 0,2584
Kazakhstan - Mobile 0,3400
Kenya 0,3780
Kenya - Mobile 0,5628
Kenya-Mombasa 0,3780
Kenya-Nairobi 0,3780
Korea Dem People's Rep 3,0000
Korea Republic of 0,0333
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ - ▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of-Seoul 0,0333
Kuwait 0,1917
Kuwait - Mobile 0,1932
Kyrgyzstan 0,4018
Kyrgyzstan - Mobile 0,4018
Laos PDR 0,2740
Latvia 0,2439
Latvia - Mobile 0,3964
Lebanon 0,2182
Lebanon - Mobile 0,3910
Lesotho 0,5092
Liberia 0,4236
Libya 0,3693
Liechtenstein 1,7124
Liechtenstein - Mobile 0,7278
Lithuania 0,1822
Luxembourg 0,0263
Luxembourg - Mobile 0,2999
Macao 0,0538
Macao - Mobile 0,0538
Macedonia 0,2577
Macedonia - Mobile 0,5313
Madagascar 0,5628
Madagascar - Mobile 0,5628
Malawi 0,1860
Malaysia 0,0270
Malaysia - Mobile 0,0988
▇▇
▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ 0,0467
Maldives 0,6600
Mali 0,4881
Mali-Bamako 0,4881
Malta 0,4107
Malta - Mobile 0,5148
▇▇▇▇▇▇▇▇ Islands 0,6183
Martinique 0,6600
Martinique - Mobile 0,6600
Mauritania 0,5682
Mauritius 0,5001
Mexico 0,1199
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇ City 0,1199
Mexico-Monterrey 0,1199
Mexico - Mobile 0,1199
Micronesia 0,7150
▇▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇▇ - Mobile 0,3922
Monaco 0,1062
Monaco - Mobile 0,1360
Monaco - Mobile-EX, KFOR 0,4461
Mongolia 0,1270
Montserrat 0,3927
Morocco 0,5220
Morocco - Mobile 0,5392
Morocco-Casablanca 0,3807
Morocco-Rabat 0,3807
Mozambique 0,4401
Mozambique - Mobile 0,4401
Myanmar 0,8001
Namibia 0,3975
Nauru 1,6845
Nepal 0,4038
Nepal-Kathmandu 0,4038
Nepal - Mobile 0,4038
Netherlands 0,0174
Netherlands - Mobile 0,3347
Netherlands Antilles 0,3816
New Caledonia 0,6171
New Zealand 0,0195
New Zealand - Mobile 0,2925
▇▇
▇▇▇▇▇▇▇▇▇ 0,5410
Nicaragua - Mobile 0,5410
Niger 0,3381
Nigeria 0,5866
Nigeria - Mobile - Others 0,2970
Nigeria-Lagos 0,4145
Norway 0,0198
Norway - Mobile 0,2496
Oman 0,4401
Pakistan 0,2992
Pakistan - Mobile 0,3040
Pakistan-Islamabad 0,2981
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ 0,2774
Palau 0,7467
Palestinian Authority 0,3306
Panama 0,1767
Panama - Mobile 0,2802
Paraguay 0,2223
Paraguay - Mobile 0,3454
Paraguay-Asuncion 0,2223
▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇ - Mobile 0,4900
Peru-Lima 0,0616
Philippines 0,1902
Philippines - Mobile 0,2279
Philippines-Cebu 0,2289
Philippines-Manila 0,1902
Poland 0,0639
Poland - Mobile 0,4180
Poland-Gdansk 0,1320
Poland-Warsaw 0,0597
Portugal 0,0274
Portugal - Mobile 0,2997
Puerto Rico 0,0670
Qatar 0,4941
Qatar - Mobile 0,5518
Reunion 0,3000
Reunion - Mobile 0,5736
Romania 0,2062
Romania - Mobile 0,4647
Romania-Bucharest 0,2091
24
Russia 0,1143
Russia - Mobile 0,0846
Russia-Moscow 0,0844
Russia-St Petersburg 0,0454
Rwanda 0,6400
Samoa American 0,2860
San Marino 0,0819
Saudi Arabia 0,3366
Saudi Arabia - Mobile 0,3239
Saudi Arabia-Jeddah 0,3366
Saudi Arabia-Makkah 0,3366
Saudi Arabia-Riyadh 0,2693
Senegal 0,4026
Senegal - Mobile 0,4026
Serbia 0,9042
Serbia - Mobile 0,9042
Seychelles 0,3562
Sierra Leone 0,6160
Singapore 0,0138
Singapore - Mobile 0,0155
▇▇▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇▇▇ - Mobile 0,4032
Slovenia 0,4800
Slovenia - Mobile 0,4800
Somalia 0,9759
South Africa 0,0990
South Africa - Mobile 0,3028
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ 0,0990
South Korea-Fixed 0,0335
South Korea-Mobile 0,2423
Spain 0,0174
Spain - Mobile 0,2963
Spain - Mobile (Amena) 0,3705
Spain-Barcelona 0,0380
Spain-Madrid 0,0376
▇▇▇ ▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇ ▇▇▇▇▇ - Mobile 0,2922
St Kitts and Nevis 0,3519
St Pierre and Miquelon 0,5691
St ▇▇▇▇▇▇▇ Grenadines 0,4464
Sudan 0,3867
25
Suriname 0,5140
Suriname - Mobile 0,5140
Swaziland 0,4714
Sweden 0,0162
Sweden - Mobile 0,2922
Sweden - Mobile (Telia) 0,2922
Sweden-Stockhom 0,0162
Switzerland 0,0455
Switzerland - Mobile 0,4120
Syria 0,6522
Syria - Mobile 0,6522
Taiwan 0,0299
Taiwan - Mobile 0,1344
Taiwan-Taipei 0,0299
Tajikistan 0,6840
Tanzania 0,4389
Tanzania - Mobile 0,4389
Tanzania-Dar es Salaam 0,4389
Thailand 0,0671
Thailand - Mobile 0,0671
Thailand-Bangkok 0,0635
Togo 0,5400
Tonga 1,0140
Tunisia 0,5152
Tunisia-Tunis 0,4335
Turkey 0,2661
Turkey - Mobile - Others 0,3466
Turkey - Mobile - Telsim 0,3466
Turkey - Mobile - Turkcell 0,3466
▇▇▇▇▇▇-▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ 0,2661
Turkey-Istanbul 0,1582
Turkey-Izmir 0,2472
Uganda 0,2127
Uganda - Mobile 0,2127
Ukraine 0,2008
Ukraine - Mobile 0,3088
Ukraine-Kiev 0,1888
Ukraine-Lviv 0,1888
United Arab Emirates 0,3269
United Arab Emirates - Mobile 0,3302
United Arab Emirates-Dubai 0,3269
26
United Kingdom 0,0150
United Kingdom - Mobile - Hutchison3G 0,2381
United Kingdom - Mobile - O2 0,2381
United Kingdom - Mobile - Orange 0,2381
United Kingdom - Mobile - Others 0,2381
United Kingdom - Mobile - Tmobile 0,2381
United Kingdom - Mobile - Vodafone 0,2381
United Kingdom-London 0,0150
United Kingdom-Shared Cost-0845 0,5100
United Kingdom-Shared Cost-0870 0,5100
Uruguay 0,3606
Uruguay - Mobile 1,1628
USA 0,0153
USA-Alaska 0,0508
USA-Hawaii 0,0443
Uzbekistan 0,1944
Vanuatu 3,0000
Venezuela 0,1716
Venezuela - Mobile 0,5170
Venezuela-Caracas 0,1716
Vietnam 0,3465
Vietnam - Mobile 0,3413
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇,▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 0,1101
Wallis and Futuna 3,4977
Yemen 0,4977
Zambia 0,3192
Zimbabwe 0,5106
Zimbabwe - Mobile 0,5106
-------------------------------------------------------------------------------
Provider shall be entitled to modify its rates at any time during the term of
this Agreement with a thirty (30) day prior notice. Use of the Service after the
date of effect of the modification of rates shall be deemed as express
acceptation of the increase. In the event of an increase of the rates, Customer
shall be entitled to refuse such and shall be entitled to terminate the
Agreement provided that it sends a registered letter with acknowledgement of
receipt notifying such decision and received at least three (3) working days
prior to the date of effect. Such termination shall take effect as of the date
of effect of the new rates.
5. HARDWARE INFRASTRUCTURE
--------------------------
27
Provider will provide Customer with a hardware infrastructure with a capacity of
10.000 users.
Hardware infrastructure includes the following servers:
- 2 Power Access / Tunnel Server
- 1 B2B UA Server (PSTN Termination)
- 1 Web Server / Payment Server
- 1 Radius Server
- 1 Call Forwarding Server
28
EXHIBIT C INVOICING
-------------------
This exhibit covers the invoicing for fees payable for the Services.
Customer shall be responsible for the billing of the End Customers, based on its
own billing information.
For the implementation of billing solutions, the contact persons listed in
SECTION 15 of the Agreement will be responsible. These contact persons shall
handle the billing process and daily operations between the Parties.
INVOICING
GENERAL
Provider shall carry out the collection and processing of billing data for
fees, generate invoices for fees and ship such invoices to Customer as set
out in this Section.
ISSUING AN INVOICE
Provider shall prepare a monthly invoice for fees or intermediary invoices
in accordance with the provisions of SECTION 10 of the Agreement. In the
case of a delay in the delivery of an invoice, Provider shall inform
Customer in advance of such a delay and express the foreseen duration of
the delay.
INVOICE CONTENT AND FORMAT
The invoice shall contain the following information:
o Originator of the invoice
o Receiver of the invoice
o Invoice date
o Invoice number
o ▇▇▇▇ period
o Customer number
o Provider contact person
SHIPMENT OF INVOICE
Invoices for fees shall be produced and shipped by Provider to Customer as
printed-paper. Additionally an electronic form shall be produced and
provided to the relevant Customer contact point.
In the event there are any discrepancies between the paper and the
electronic version, the paper version takes precedence.
29
FIRST PAYMENT IN ADVANCE
------------------------
At least three (3) working days prior the beginning of the first invoicing
period, Customer shall pay Provider with a payment in advance. The amount of
such payment shall be equal to the amount due in accordance with the terms of
the forecast provided by Customer to Provider in accordance with the provisions
of point 3 of Exhibit A to this Agreement.
30
EXHIBIT D END CUSTOMER LICENCE AGREEMENT
----------------------------------------
MINIMUM END USER TERMS AND CONDITIONS
The following terms and conditions must be included in any Customer agreement
with End Customer to the Service and be made part of all purchase orders, in
substantially the form set forth below. Any material deviations must be
specifically approved in writing by Provider. Capitalized terms not defined
herein shall have the meaning set forth in the Agreement. No End Customer can
receive the Service unless it has expressly agreed to these terms and conditions
and acknowledged its Agreement to these terms and conditions.
1. End Customer acknowledges and understands that the service is not a
traditional telephone service and that Customer, Softphone and/or other related
products are not a replacement for End Customer primary telephone service.
Important distinctions exist between the traditional telephone service and the
service provided by Customer.
2. By entering into this Agreement End Customer acknowledges and agrees that the
service is not a replacement for End Customer ordinary telephone and cannot be
used for emergency calling. None of Customer's products carry or support, or
intend to carry or support emergency calls.
3. If Customer allocate number to End Customer as soon as reasonably possible
after the receipt of End Customer request thereto. End Customer acknowledges and
understands that the allocation of the number does not constitute any transfer
of any property or other rights with regard to the number.
4. Customer is entitled, without any liability to End Customer, to refuse,
change or terminate any number at any time. In particular, without limiting the
generality of the foregoing, Customer reserves the right to immediately withdraw
the number should End Customer not comply with the terms of this Agreement, the
instructions given by Customer and/or Provider or the requirements of the
relevant national number plan.
6. Customer grants a non-exclusive and non-transferable right to use the
Softphone. End Customer will use Softphone only according to the purpose the
Softphone is created for (the "contractual use"). This license does not include
the right to grant any sub-licenses.
7. The right to use the Softphone is granted subject to a contractual use of the
Softphone by End Customer, according to this license agreement; End Customer
shall lose any right of use in case of infringing this contract. End Customer is
obliged to return all copies and to delete all installations of the Softphone
without undue delay in case of a substantial breach on request of Customer.
31
8. The Softphone is restricted for a contractual use. Except to the extend
explicitly permitted by mandatory laws (e.g. national laws based on the European
Software Directive (91/250) and the Database Directive (96/9)), End Customer may
not extract or reutilize substantial parts of the Softphone nor reproduce, copy,
modify, adapt, translate, disassemble, de-compile, reverse engineer any portion
of the Softphone. It is furthermore strictly forbidden to remove, alter, modify
or manipulate in other ways any logos, brands, trademarks, trade names as well
as any copyright remarks which are part of the Softphone.
9. End Customer is not entitled to transfer or lease the Softphone in other ways
to third parties, nor to grant any sub-licenses. It is furthermore not allowed
to grant third parties any right of use based on a rental or a leasing model.
10. This Softphone is provided without any warranty and without any assurance of
quality. Customer explicitly does not warrant that the Softphone is free of
defects and/or suitable for the use End Customer plans for the Softphone.
11. This license agreement constitutes no claim on bug-fixes, upgrades or
updates of the Softphone and its documentation.
12. Customer shall be not liable for any direct or indirect damages,
consequential damages and any other kind of damage, arising from the use of the
Softphone that may concern the End Customer, its partners, customers or any
other third party, whom access to the Softphone or its use was granted. End
Customer takes explicitly over such risk of operating the Softphone.
32