Exhibit 10.10
INFONET SERVICES AGREEMENT
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This Agreement is entered into as of the _______ day of ________, 1998 by and
between INFONET SERVICES CORPORATION, a corporation organized and existing under
and by virtue of the laws of the State of Delaware, United States of America,
having its principal place of business in the City of El Segundo, California,
(hereinafter referred to as "ISC"), and __________________, a corporation
organized and existing under and by virtue of the laws of _________________,
having its principal place of business in __________________ (hereinafter
referred to as "Representative").
WHEREAS, ISC is engaged in, among other activities, the business of
developing and operating directly or through distributors an international
telecommunications and information network known as the World Network, and
WHEREAS, Representative and ISC are interested in a cooperative effort in
__________ and in other countries in order to satisfy the telecommunication and
information needs of a wide range of international users, and
WHEREAS, ISC has developed and is owner of certain proprietary services,
software systems, software products, and hardware/software systems which are
described in Appendices attached hereto, and
WHEREAS, ISC has the marketing rights to the certain services, systems, and
products which are described in Appendices attached hereto, and
WHEREAS, ISC is the registered proprietor of certain registered service
marks or trademarks relating to services, systems, and products, and
WHEREAS, Representative is desirous of marketing and reselling the use of
the services, systems, and products, as specified in the Appendices hereto, to
its customers, and
WHEREAS, ISC is willing to grant to Representative the right to market and
resell the use of the services, systems, and products specified in the
Appendices attached hereto, and to grant Representative the right to use said
registered service marks or trademarks in connection therewith, and
Representative is willing to accept same.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and the mutual covenants,
promises, and conditions set forth herein, the parties hereto agree as follows:
1. DEFINITIONS
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The following definition shall apply whenever the underlined words are used
in the
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Agreement.
1.1 Infonet - Infonet is a registered trademark and service ▇▇▇▇ of, and
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identifies and refers to, ISC. As used herein, Infonet sometimes
refers, as context requires, to ISC or to the services made available
by ISC.
1.2 Appendices - The Appendices defined in Article 14, Appendices, and
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attached hereto.
1.3 Infonet Services - The services, systems, and products, as described
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in the Appendices.
1.4 Territory - The geographic area described in Article 4, Territory
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Defined.
1.5 Trademarks or Service Marks - ISC's trademarks or service marks as
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currently set forth in Annex 3 hereto, and as may hereinafter be
registered by ISC.
1.6 Normal Customer Support Service - A generally available service
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provided at no charge to customers encompassing a reasonable level of
service consisting of assistance to a user in matters relating to
communications access, data entry, and data retrieval to and from the
services provided hereunder. Normal Customer Support Service is a
continuing process of interacting with the customer to assure that the
customer is utilizing services, systems, and products in an optimal
manner.
1.7 Global Connect Services - The provisioning of customer premise
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equipment ("CPE"), as authorized under Global Connect policies and
procedures, and the local leased circuit to interconnect the CPE at
the customers site to the Infonet node. Such provisioning would be
made available to customers of Representative and to Multi-National
Customers.
1.8 Revenues - All monies or money equivalents, in equivalent U.S.A.
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dollars, which Representative invoices its customers in exchange for
providing Infonet Services, less the money or money equivalents for
value added taxes, sales taxes, and use or similar taxes. These monies
are usually described by ISC as suggested End-User prices.
1.9 Representative Compensation - The amount retained by Representative
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after deducting Representative Settlement Price and Revenue Share
(Out) from Revenues.
1.10 Representative Settlement Price - Money or money equivalents retained
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by ISC for provisioning to Representative's customers of the Infonet
Services defined in the Appendices attached hereto, and in accordance
with the then current price schedules specified in each Appendix.
These monies may be described by ISC as Transfer prices, and may be
entitled to a discount based on the General Volume Discount
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table and conditions as set forth in Annex 2 hereof.
1.11 Revenue Share (Out) - Money or money equivalents paid by
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Representative for Normal Customer Support Services provided to its
customers, and as defined in Article 7.
1.12 Revenue Share (In) - Money or money equivalents paid to Representative
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for Normal Customer Support Services, provided to users of Infonet
Services in the Territory, and as defined in Article 7.
2. MARKETING RIGHTS
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ISC agrees to and does hereby grant to Representative the right to market
and resell the use of Infonet Services as defined herein, within the
Territory.
3. TRADEMARKS OR SERVICE MARKS
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3.1 ISC hereby grants to Representative, during the term and subsequent
renewals of this Agreement, the non-transferable right and
authorization to use within the Territory the Trademarks or Service
Marks.
3.2 Representative shall use the Trademarks or Service Marks only in
respect to providing Infonet Services, the rights to which have been
granted herein, and any services related thereto, so long as this
Agreement remains in effect.
3.3 Representative acknowledges the title of ISC to the Trademarks or
Service Marks in the Territory and elsewhere and the validity of the
registration of ISC as the proprietor in the Register of Trademarks or
Service Marks. Representative shall not claim any ownership or similar
right to the Trademarks or Service Marks by reason of their use
thereof pursuant to this Agreement, and any rights which
Representative should otherwise acquire in or to the Trademarks or
Service Marks shall be deemed for the account and benefit of ISC.
3.4 Representative shall use its best endeavors to preserve the value and
validity of the Trademarks or Service Marks and in particular will:
3.4.1 Endeavor to create, promote, and retain goodwill in the
business of selling the goods and services.
3.4.2 Give to ISC any information as to Representative's use of the
Trademarks or Service Marks which ISC may require and otherwise
render any assistance to ISC in maintaining the Trademarks or
Service Marks duly registered except that ISC shall pay all
renewal fees.
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3.4.3 Use the Trademarks or Service Marks correctly spelled as
registered and not as a verb or in the plural.
3.4.4 Not to use the Trademarks or Service Marks unaccompanied by
words describing the nature of the goods and services to which
they relate unless the Trademarks or Service Marks in question
are capitalized or otherwise distinguished from the surrounding
and adjacent text.
3.4.5 In the event that the Trademarks or Service Marks are to be
used with another trademark or service ▇▇▇▇ or in relation to
the goods and services under the control of Representative,
Representative will use its best efforts to have both
trademarks or service marks represented equally legibly,
equally prominently, and of the same size as each other but
nevertheless separated from the other so that each ▇▇▇▇ appears
to be a ▇▇▇▇ in its own right distinct from the other ▇▇▇▇.
3.4.6 Representative agrees not to use in its business any other
trademark which is similar to or so nearly resembles the
Trademarks or Service Marks or any of them as to be likely to
cause deception or confusion.
4. TERRITORY DEFINED
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The grant of rights and authorization of this Agreement shall extend only
within the geographic boundaries of _____________________.
5. ISC OBLIGATIONS
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5.1 ISC will provide access to Infonet Services from communications
gateways made available to Representative pursuant to Article 8,
Network Interconnection, of this Agreement. ISC will also provide upon
request from Representative the products, as defined in Appendix H
hereto.
5.2 ISC agrees to provide to Representative, as appropriate, either two
(2) copies of Infonet marketing and operational documentation in the
English language, F.O.B. El Segundo, California or access to certain
informational data bases. The aforementioned documentation or data
base access will be provided at no cost to Representative. Additional
copies of Infonet user documentation in the English language will be
provided to Representative F.O.B. El Segundo, California at the
standard selling price in effect in the United States at the time of
shipment.
5.3 ISC will provide at Representative's written request training to
Representative personnel through attendance in training classes
regularly conducted by ISC for its
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personnel in the United States. The attendance of Representative
personnel shall not exceed two employees per training class. Such
training will be provided in the English language principally in or
near Los Angeles, California, U.S.A. The training to be provided
herein shall be made available without additional cost to
Representative. The costs incurred for Representative personnel for
travel and living expenses shall be at Representative's expense.
5.4 ISC will arrange at Representative's written request the attendance of
Representative's personnel at special training sessions sponsored by
ISC and conducted by third parties. All costs associated with such
sessions shall be at Representative's expense.
5.5 ISC, at its expense, agrees to provide reasonable support for
Representative. ISC shall determine the ISC organization, number of
personnel, and magnitude of effort reasonably required to support the
use of Infonet Services made available to Representative under this
Agreement.
5.6 ISC agrees that Representative may, at its own expense, print copies
of Infonet user documentation furnished hereunder for distribution to
its customers, in any language, provided that all such copies shall
bear any copyright notice contained in the original furnished by ISC.
Any translation made by Representative of documentation supplied by
ISC is the property of Representative, and Representative is solely
responsible as to accuracy and completeness of translation.
Representative agrees to and does hereby grant to ISC a perpetual
exclusive license to use said translated documents outside the
Territory. The printing of said translated documents for ISC's use
shall be at ISC's expense.
5.7 For the support of Infonet Services provided by Representative within
the Territory, ISC will pay Representative Revenue Share (In).
6. REPRESENTATIVE OBLIGATIONS
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6.1 Representative shall market and use Infonet Services made available by
ISC in accordance with the terms of this Agreement.
6.2 ISC will invoice, and Representative agrees to pay, Representative
Settlement Price and Revenue Share (Out) corresponding to the total
Revenues generated from provision of Infonet Services to customers
contracting with Representative in the Territory. Invoices will be
issued on a monthly basis.
6.3 Any technology transfer tax, sales or turnover tax, value added tax,
currency export tax, registration tax, or any other taxes as may be
applied to the amounts payable to ISC hereunder shall be borne by
Representative and not deducted from such amounts; except that any
taxes by the national government or any other government
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on ISC's income (or a third party's income) hereunder shall be borne
by ISC, or a third party as the case may be and, if required by law,
shall be deducted from any payments made to ISC. If it is required by
law that Representative deduct taxes from ISC's income hereunder then
Representative agrees promptly to provide ISC with the original copy
of each paid tax receipt on any taxes so withheld from payments to
ISC, or a third party.
6.4 Representative shall have, with due and continuing diligence, the
primary responsibility for attending to the necessary filing and
registration requirements with the Government of _____________, so
that all amounts specified herein can be paid to ISC when due, and
shall bear the costs thereof.
6.5 Representative agrees that services utilized hereunder will not be
used in contravention of national or international communications
regulations, laws, or tariffs. Representative further agrees that in
providing Infonet Services it will neither undertake, nor cause nor
permit to be undertaken, any activity which either (a) is illegal
under any laws, decrees, rules, or regulations in effect in the
Territory, or (b) would have the effect of causing ISC to be in
violation of any laws, decrees, rules, or regulations in effect in the
Territory.
6.6 Representative agrees that ISC has the right to approve the prices to
be established by Representative for Infonet Services, the rights to
which are granted hereunder, prior to any such prices being published
and made available to Representative's customers in the Territory.
Such approval shall not be unreasonably withheld.
6.7 Representative and ISC will agree upon revenue targets to be achieved
in the Territory for each calendar year starting with the first
complete calendar year after the date of this Agreement, consistent
with reasonable growth of the revenue in the Territory. In the event
that the parties are not able to reach an agreement by the end of a
calendar year, the revenue target for the following calendar year
shall be two (2) times the revenue for the second and third quarter of
the current calendar year multiplied by the average growth rate
experienced by other Infonet representatives in the same region (as
used herein, regions as defined for Notice Private services).
Representative will make diligent efforts to achieve the targets. If
the agreed revenue targets are not met, or if the parties fail to
reach an agreement on revenue targets for two consecutive calendar
years, ISC may, at its discretion, terminate this Agreement by giving
one hundred eighty (180) days notice in writing to Representative.
6.8 Representative and ISC will agree upon the number of job positions,
the functions of the established positions, the number of employees to
be assigned to the established positions, and the Representative
employees assigned to the established positions required for the
marketing, sales, and support efforts needed in the provision of
Infonet Services, including an appropriately staffed helpdesk pursuant
to the Infonet Customer Support Guidelines. If the parties fail to
reach
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an agreement on the foregoing within a six (6) month period, ISC may,
at its discretion, terminate this Agreement by giving one hundred
eighty (180) days notice in writing to Representative.
6.9 Representative agrees to ensure that the employees assigned in
accordance with paragraph 6.8 are properly trained and fully made
aware of Infonet Services, and Infonet policies and procedures. As
part of this commitment, Representative agrees to actively
participate in ISC's regional and global conferences. Further,
Representative and ISC will establish, when appropriate but at least
once a year, specific training programs for each employee assigned to
sell or support Infonet Services, and Representative will ensure that
each employee will attend the specified ISC training courses or
sessions.
6.10 Representative agrees to provide timely Normal Customer Support
Services in accordance with ISC's standard support policies and
procedures, as currently in force and as modified in the future.
Accordingly, Representative agrees to reply to, or acknowledge, all
inquiries received from ISC or Host Lessees, as hereinafter defined,
within twenty-four (24) hours excluding weekends and holidays in
____________. Further, Representative will maintain, or make
arrangements for the maintenance of the site for the Infonet node,
and the test and monitoring equipment, in accordance with the
specifications in the aforementioned standard support policies and
procedures.
6.11 Representative, to the extent permitted by law and regulations,
agrees to provision Global Connect Services in accordance with the
then current Global Connect policies and procedures. ISC reserves the
right to audit Representative's compliance with the Global Connect
policies and procedures.
6.12 Representative shall forward the reports, as requested by ISC,
necessary to monitor and manage the provisioning of Infonet Services
in Representative's Territory.
6.13 If Representative fails to meet its commitments as set forth in
Paragraphs 6.9, 6.10, 6.11, and 6.12 above, ISC may, at its
discretion, terminate this Agreement by giving one hundred eighty
(180) days notice in writing to Representative.
6.14 Representative agrees to subscribe to a white and/or yellow page
listing in the appropriate telephone directories which would
reference that the Representative is an Infonet Services provider,
and would provide the telephone number to be used by an Infonet
Services user to reach Representative.
7. MULTI-NATIONAL SERVICES
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7.1 Should Representative acquire a customer with business interests in
the Territory
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and such customer operates on a multi-national basis and desires that
its offices and/or personnel outside of the Territory shall have
access to the common data base and/or program library and/or computer
system totally or partially dedicated to the customer's use, then ISC
and Representative agree that Representative shall have the primary
responsibility to furnish the services specified in the Appendices to
such customer (hereafter "Multi-National Customer") outside of the
areas in which Representative is doing business.
7.2 All expenses except as specifically set forth in Paragraph 7.3 arising
from the acceptance of a Multi-National Customer shall be borne by
Representative.
7.3 Whenever Representative provides the Infonet Services to a Multi-
National Customer's offices and/or personnel located in a country or
place where ISC has not assigned, leased, or licensed others to
perform Infonet services, ISC agrees to supply Normal Customer Support
Services at ISC's expense when requested to do so by Representative
provided that ISC is then currently providing such support services
for its own customers in the immediate vicinity.
7.4 Whenever Representative provides Infonet Services to a Multi-National
Customer's offices and/or personnel located in a country or place
where ISC has assigned, leased, or licensed others to perform Infonet
Services, ISC agrees to exercise a diligent effort to bring about an
agreement between Representative and ISC's assignee, lessee, or
licensee (the "Host Lessee") which will require the Host Lessee to
supply Normal Customer Support Services on the same terms as set forth
in Paragraphs 7.3 above and 7.5 below.
7.5 Whenever Representative provides Infonet Services to a Multi-National
Customer, Representative agrees to pay to ISC (or Host Lessee as the
case may be) the revenue share amounts set forth in the Appendices
where ISC (or the Host Lessee) supplies Normal Customer Support
Services.
7.6 At the request and expense of Representative, ISC agrees to conduct an
audit of any entity furnishing Infonet Services for which the
Representative is entitled to receive revenues for the rendition of
Normal Customer Support Services under this Agreement. ISC will submit
to Representative a report of the findings of the audit. Expenses at
any audit so conducted will be calculated based upon ISC's normal and
prevailing labor rates and expenses incurred.
7.7 Should ISC (or a Host Lessee provided that such Host Lessee has agreed
to provide Normal Customer Support Services under Paragraph 7.4)
acquire a customer with principal business interests outside of the
Territory and such customer operates on a multi-national basis and
desires that its offices and/or personnel within the Territory shall
have access to a common data base and/or program library and/or
computer system totally or partially dedicated to the customer's use
located outside of the
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Territory, Paragraph 7.1 through 7.5 shall apply mutatis mutandis.
8. NETWORK INTERCONNECTION
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Access to Infonet Services as defined in the Appendices hereto, will be
made available to Representative from network nodes configured to ISC
specifications, installed at Representative's site, via an international
leased line or lines from the aforementioned nodes to ISC network gateway
nodes. The costs for the international leased line(s) will be borne by the
parties hereto in accordance with such cost-sharing agreements as may be
agreed to from time-to-time by ISC and Representative. Access to the
aforementioned services will be made available in accordance with the then
current provisions of Annex 1 of this Agreement.
9. PAYMENTS AND START DATE
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9.1 Amounts due ISC under this Agreement will be invoiced in U.S. dollars
by ISC at the end of each calendar month. Amounts due Representative
under this Agreement, other than revenue-share or Global Connect
amounts, will be invoiced by Representative at the end of each
calendar month. ISC will match the amounts invoiced and credited
pursuant to the foregoing, and will forward an open item statement
showing the amounts due by either party. The debtor party shall pay
the balance as shown on the open item statement in U.S. dollars within
forty-five (45) days of the date of such statement. Any payment in
arrears for more than forty-five (45) days of presentation of the open
item statement shall be charged interest at a rate of one and one-half
percent (1 1/2%) per month. Notwithstanding the aforementioned both
parties agree to carry over payment balances until such payment
balances are in the amount of one thousand U.S. dollars or greater.
Any payment balances carried over will not be considered in arrears
until such amounts equal or exceed the aforementioned amount.
9.2 All payments to ISC under this Agreement shall be wire transferred to
the below listed bank account:
▇▇▇▇▇ Fargo Bank (ABA No. ▇▇▇▇▇▇▇▇▇)
Commercial Banking Office
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
INFONET General Account No. 4624-063731
or to such other bank and account as ISC may designate in writing.
9.3 All payments to Representative under this Agreement shall be wire
transferred to
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the bank and account designated in writing to ISC by Representative.
9.4 In the event that Representative does not meet its payment
requirements specified in Paragraph 9.1, ISC may, in addition to all
other rights and remedies under this Agreement and in law, suspend
any or all services, systems, or products without prior notice to
Representative.
9.5 The obligations and requirements of this Agreement unless otherwise
specified shall start on the date of signing of this Agreement.
10. WARRANTY AND LIABILITY
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10.1 ISC warrants that the services, systems, and products furnished by
ISC under this Agreement will be substantially similar to the
services, systems, and products made available by ISC in the United
States. THE PARTIES AGREE THAT ISC WILL NOT BE HELD TO ANY OTHER
WARRANTIES DIRECTLY OR INDIRECTLY RELATED TO SERVICES, SYSTEMS, AND
PRODUCTS, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.2 ISC shall not be liable for, and Representative assumes and will save
harmless, ISC, its directors, officers, employees, and agents in
respect of any loss, claim, damage, liability, or expense, including
reasonable attorney's fees, that may arise through the marketing and
use of the services, systems, and products in the Territory. In no
event shall ISC be liable for any indirect, incidental, special,
exemplary, or consequential damages such as, but not limited to, loss
of anticipated profits or other economic loss, in connection with or
arising out of the furnishing, performance, or use of the services,
systems, and products provided for in this Agreement.
10.3 Except as otherwise provided in this Agreement, neither party shall
be held liable for any failure to perform or delay in performance of
any obligation hereunder for reasons of "force majeure". The term
"force majeure" as employed hereunder shall mean, but not be limited
to, acts of God, acts or omissions of governments, acts or omissions
of military authorities, strikes, lock-outs, or other industrial
disturbances, acts of the public enemy, wars, blockades,
insurrections, riots, epidemics, landslides, earthquakes, fires,
storms, lightning, floods, washouts, civil disturbances, and any
other acts or omissions, not within the control of the affected party
and which by the exercise of due diligence said party is unable to
overcome.
11. TERM OF AGREEMENT AND TERMINATION
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11.1 The duration of this Agreement shall be for a period of three (3)
years from the date
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hereof, unless earlier terminated under the provisions of this
Agreement. It is further agreed that this Agreement and the rights
and authorizations granted hereunder shall be renewed automatically
for additional successive one (1) year periods unless either party
notifies the other party in writing of its intention not to have
Agreement and the rights and authorizations renewed at least one
hundred eighty (180) days prior to the expiration date of this
Agreement, or its subsequent renewals.
11.2 Either party may terminate this Agreement on ninety (90) days notice
in writing to the other party upon failure of the other party to
perform any of its obligations hereunder; provided, however, that
during such ninety (90) day period the party in default shall have
fulfilled its obligations, this Agreement shall continue in effect as
if such notice had not been given.
11.3 The right of termination by Representative or ISC under Paragraph
11.2 and Paragraph 11.4 or by ISC under Paragraph 11.5 shall be in
addition to any other rights or remedies permitted by operation of
law or in equity or under any other provision of this Agreement.
11.4 Subject to the rights of termination to ISC by Paragraph 11.5 below,
either party may, upon written notice to the other, terminate and
cancel this Agreement in the event that the other party voluntarily
files a bankruptcy petition, and said petition is not disposed of
within thirty (30) days, or in the event that the other party is
insolvent and unable to pay its debts as they mature, or if such
party shall make an assignment for the benefit of creditors or have a
receiver appointed for it or its property.
11.5 In the event Representative fails to make any payments required under
this Agreement, ISC shall notify Representative of such failure in
writing. ISC may terminate this Agreement and all rights and licenses
hereunder upon thirty (30) days written notice if Representative
fails to make the required payment within thirty (30) days following
the receipt of the payment failure notice. The provisions of this
paragraph shall not apply if Representative's failure to perform or
delay in performance are for reasons of force majeure.
11.6 In the event Representative establishes a business relationship with
a service vendor other than ISC that provides substantially similar
services to the services described herein, ISC reserves the right, at
its discretion to terminate this Agreement by giving one hundred
eighty (180) days notice in writing to Representative.
11.7 ISC reserves the right to take all actions, including termination of
services provided to Representative or Representative's customers
pursuant to this Agreement, which ISC considers necessary to comply
with applicable national or international communications regulations,
laws, or tariffs.
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12. EFFECTS OF NONRENEWAL OR TERMINATION
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12.1 In the event of expiration or termination of the Agreement, ISC will
at its option assume responsibility for the Infonet Multi-National
Customers in the Territory. Representative will exercise all
diligence in transferring such customers to ISC's responsibility or
the responsibility of ISC's nominee. Representative will pay the
costs incurred by its own personnel in meeting the obligations of
this paragraph.
12.2 Expiration or termination of this Agreement shall not relieve the
parties of any obligations due at the time of such expiration or
termination, nor shall such expiration or termination prejudice any
claim of either party accrued on account of any default or breach by
the other.
12.3 The non-renewal or termination of this Agreement shall not affect
services in place for Representative's customers which explicitly or
by their nature would continue beyond the non-renewal or termination
of the Agreement unless the parties hereto both agree to have all
such services concluded upon cessation of the Agreement.
12.4 Upon agreement in writing by the parties hereto, ISC shall (i)
support Representative's customers operating under this Agreement
until the end of such customer's contract period; (ii) allow for the
provision of additional circuits [sites], and new or additional
Infonet Services, under an existing customer contract, and (iii)
extend a customer's contract to a date beyond the termination of this
Agreement if both ISC and Representative agree in writing.
12.5 Upon termination or expiration of this Agreement, the Parties
acknowledge that surviving obligations listed in Paragraph 12.4
above, are subject to the following provisions: (i) prices for
services shall be at ISC's then current prices; and (ii) the
discounts offered under this Agreement are not valid after the
completion of the customer's commitment period.
13. POST TERMINATION
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Upon the non-renewal or termination of this Agreement, for any reasons
whatsoever:
(a) Representative shall cease marketing the services, systems, and
products made available hereunder.
(b) Representative shall as soon as reasonably practical cause all entries
in published material such as telephone directories to be removed and
shall cause all stationery, advertisements, promotional materials, and
signs to be changed, removed, or expunged so as to eliminate any
reference to the Trademarks or Service Marks.
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(c) Representative shall not thereafter use any trading style, trade
name, trademark, or service ▇▇▇▇ which is similar to or so nearly
resembles the Trademarks or Service Marks or any of them, as would or
might be likely to cause confusion.
(d) Representative shall return to ISC within sixty (60) days of
termination all copies of internal manuals, all copies of
documentation, papers, and materials marked or stamped with the words
designating such documents, or copies thereof, as proprietary or
confidential to ISC, and all ISC copyrighted materials, and generally
all documentation, papers, and materials referring to or concerning
the provision of the services provided hereunder being in the
possession of Representative at the time of termination.
14. APPENDICES
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14.1 The following Appendices are attached hereto: Appendix A, Network
Services; Appendix B, Remote Access Services; Appendix C, Infolan and
Frame Relay Services; Appendix D, Messaging and Collaborative
Services; Appendix E, Global MultiMedia Services; Appendix F,
Administrative Services; Appendix G, Specialized Services; and
Appendix H, Infonet Software. The aforementioned Appendices represent
the current Infonet Services made available by ISC. Each appendix
will reference specific price schedules which are initially provided
to Representative as an attachment to this Agreement. Said price
schedules are also accessible through access to Infonet On-Line
("IOL").
14.2 The Appendices listed in Paragraph 14.1 above will be updated
(additions, deletions, amendments, and modifications) from
time-to-time through the release of Sales Communication Bulletins
("SCBs"), and updates incorporated into the IOL data bases.
14.3 The following general conditions apply to the Appendices:
. The Customer is responsible for compatible remote input and output
devices, modems and appropriate communications services necessary
to communicate with the Infonet network, and for all other
associated charges. In particular, all customer premise equipment
must conform to or be compatible with Infonet's required interface
protocol for call establishment and termination.
. The customer is responsible for all costs associated with the
replacement oflost or stolen equipment.
. Technical Services may be charged to Representative for services
provided by ISC or Host Lessee which are considered to be beyond
the scope of Normal Customer Support Services or IRC Coordination
Services. Such Technical Service charges shall apply for general
communication consulting; service,
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equipment, or software certification; and problem resolution
visits to customer's premises when difficulties result from
customer provided equipment, software, and facilities or customer
personnel errors. Technical Services fees will apply for any
installation trip when the customer is not prepared for
installation, unless the scheduled trip is canceled at least 48
hours prior to the scheduled trip. ISC will coordinate requests
for Technical Services with Host Lessees.
. A special business request is required to provide for the
rebilling of PDN charges from Representative to ISC or Host
Lessee, or from ISC or Host Lessee to Representative.
. Surcharges and taxes may not be included in the price schedules
referenced in the Appendices. ISC may invoice the additional costs
incurred by ISC arising from in-country taxes, tariffs and
surcharges including, but not limited to, sales and use taxes,
value added taxes, volume sensitive tariffs and usage surcharges.
These charges are country specific.
. Notwithstanding the terms in the referenced price schedules,
prices charged to Representative are subject to change upon
90-days notice in writing, except for NOTICE Fax and NOTICE Telex
which are subject to change without prior notice.
. Representative will pay ISC for all NOTICE Telex and NOTICE Fax
services including Representative's own internal usage.
15. NOTICES
-------
Any notices provided for herein shall be given in writing and dispatched by
pre-paid first-class registered or certified mail, or by air courier, addressed
as follows:
to: INFONET Services Corporation
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Attention: President
to:
Attention:
or to such other addresses or persons as the parties may designate in writing.
16. ADVISORY REVIEW BOARD
---------------------
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16.1 The parties hereto agree to establish an Advisory Review Board
(hereinafter referred to as "ARB"), to address issues and
opportunities which may arise during the term of this Agreement.
16.2 The ARB membership will consist of up to three (3) members, two (2)
appointed by Representative and one (1) appointed by ISC. The ARB
meetings will be scheduled at times and locations designated by the
ARB standing members, but in no event will the meetings be scheduled
for less than once each calendar year.
17. GOVERNING LAW
-------------
17.1 This Agreement shall be construed and governed by the substantive
laws of the State of California, U.S.A. without giving effect to
rules regarding choice of laws.
17.2 If ISC and Representative are unable to settle a dispute by mutual
agreement, then any such dispute, controversy, or claim arising out
of or relating to this Agreement, its interpretation, performance, or
breach thereof, shall be finally and exclusively settled in
accordance with the UNCITRAL Arbitration rules as at present in
force, by three arbitrators appointed in accordance with said Rules.
The arbitration, including the rendering of the award, shall take
place in Los Angeles, California, U.S.A., and all arbitration
proceedings shall be in the English language. Any arbitral decision
or award shall be final and enforceable in any court of competent
jurisdiction. ISC and Representative acknowledge that any award
rendered pursuant to this Agreement shall be governed by the U.N.
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.
18. ASSIGNMENT OF THE AGREEMENT
---------------------------
18.1 Neither party shall assign, pledge, or in any manner delegate,
transfer, convey, alienate, or encumber any right arising from or
interest in the Agreement without obtaining the prior written consent
of the other party, which consent shall not be unreasonably withheld.
Any of the foregoing actions without such prior written consent shall
be a nullity, and of no force nor effect.
18.2 For Purposes of this Agreement, an "assignment", "pledge",
"delegation," transfer", "conveyance", "alienation" or "encumbrance"
shall be deemed to include, and be subject to the prior consent
requirement of Paragraph 18.1, if: (a) Representative is acquired by,
merged or consolidated into another entity; (b) all or substantially
all the assets of Representative or a business unit of Representative
responsible for the sale of INFONET services or products are acquired
by another entity, or (c) Representative experiences a change of
control, where "control" is defined as (i) change in ownership of at
least 50% of the equity or beneficial ownership of
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Representative, or (ii) a change in the right to vote for or appoint
a majority of the board of directors (or other governing body) of
Representative, or (iii) the management or operational control of
Representative by any entity (even though such entity may own less
than 50% of the equity of Representative).
19. SEVERABILITY
------------
If one or more of the provisions or part thereof in this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect, the validity, legality, or enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby. Notwithstanding the foregoing, ISC and Representative shall
thereupon negotiate in good faith in order to agree to the term of a
mutually satisfactory provision(s) to be substituted for the provision(s)
so found to be void or unenforceable.
20. INDEPENDENT CONTRACTOR
----------------------
Relationship of parties hereunder shall always and only be that of
independent contractors.
21. NON-DISCLOSURE OF PROPRIETARY INFORMATION
-----------------------------------------
During the term of this Agreement it is anticipated that the parties hereto
will disclose, each to the other, certain material and information which
the disclosing party deems to be proprietary and confidential. The parties
hereto agree to accept such information as proprietary and confidential
that is appropriately identified in writing as such, and agree not to
disclose hereafter such information and material to third parties. The
parties hereto further agree to restrict circulation of such proprietary
and confidential material and information within their own organization
except to the extent necessary to fulfill the purposes of this Agreement.
This restriction on the disclosure of proprietary information and materials
will not apply to information which is in the public domain other than as a
result of the acts or omissions of a party which was under an obligation to
maintain the confidentiality of such materials and information.
22. WAIVER
------
No waiver of any remedy or of any default or breach of any covenant by
either party hereunder shall be implied from any omission by either party
to take action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the
default specified in the waiver, and then said waiver shall be operative
only for the time and to the extent therein stated. Waivers of any
covenant, term, or condition contained herein by either party shall not be
construed as a waiver of any subsequent breach of the same covenant, term,
or condition. A waiver of any right or
16
remedy by a party hereto shall be construed as having been made only if
express written notice of such waiver is delivered to the other party.
23. INFRINGEMENT
------------
23.1 Should Representative learn of any infringement or threatened
infringement of the Trademarks or Service Marks, or any other
registered ▇▇▇▇ licensed under this Agreement, or any unfair
competition, or that any third party alleges or claims that such
Trademarks or Service Marks are liable to cause deception or
confusion to the public, Representative will forthwith notify ISC
giving any particulars thereof and will provide all information and
assistance to ISC in the event that ISC decides that proceedings
should be commenced or defended. Any such proceedings shall be under
the control of ISC and at ISC's cost.
23.2 Should any third party allege infringement by use of the Registered
Trademarks or Service Marks in the Territory by Representative, ISC
will defend Representative against any such allegation. All such
defenses shall be under ISC's control and at ISC's cost.
Representative undertakes to assist ISC so far as it is within its
power in the defense of such infringement proceedings.
24. CONFIDENTIALITY
---------------
Each of the parties will maintain this Agreement in strict confidence and
will not divulge its contents without agreement of the other party except
insofar as may be necessary to carry out this Agreement or conform to law.
25. ENTIRE AGREEMENT
----------------
This Agreement constitutes the final expression of the agreement of the
parties and is intended as the entire understanding between the parties and
supersedes all prior negotiations, discussions, representations, promises,
or agreements either written or oral, that may have been made in connection
with the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
INFONET SERVICES CORPORATION
By: ___________________________ By:_______________________________
Title:_________________________ Title:____________________________
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