EXHIBIT 10.1
FORM of IP GATEWAY PURCHASE AGREEMENT
182
10.1 p1
GOLDEN ACCESS GROUP
IP Telephony Gateway Purchase Agreement
This Purchase Agreement (hereinafter called the "Agreement") entered as of July
13, 1999 between (hereinafter called "Customer") and Golden Access Group of
Miami, Florida, USA (hereinafter called "Golden Access") establishes the terms
and conditions under which Golden Access will supply the IP Telephony Gateway
(hereinafter called ("Product") to the Customer.
Golden Access agrees to sell the Product as follows:
1. Golden Access IP Telephony Gateway configuration of:
o 8-Port System - $US 16,000.00
2. Payment Terms are 25% downpayment upon signing of this
Agreement and 75% within thirty (30) days of date of invoice
by certified cheque, bank transfer or an irrevocable Letter of
Credit from a financial institution acceptable to Golden
Access.
3. Golden Access grants the Customer a personal, non-exclusive,
non-transferable license to use the IP Telephony Gateway
software solely for the operation of the Customer's IP
Telephone services to its subscribers. Under the terms of this
license, the Customer shall not:
o Modify of copy the software
o Reverse compile or reverse engineer all or any portion of the
software
o Distribute, disclose or transfer the software to any third
party
4. Golden Access will provide remote product support on a
Mon.-Fri.(9am EST-6pm EST) basis and access to new software
releases for a period of 1 year at no additional charge to the
Customer. The Customer will provide Golden Access with all the
necessary information and cooperation required for its
technical support personnel to remotely access the system for
maintenance and troubleshooting purposes. These procedures are
outlined in Appendix B, attached hereto. It the Customer
should request on-site technical support, this will be
provided at the prices and terms sited in Appendix B.
5. Golden Access can offer annual extensions of the technical
support/software update package to the Customer and these are
available at the rates outlined in Appendix B.
6. Golden Access will provide one (1) set of all the necessary technical
documentation, including User Manuals, etc. associated with the
Product.
7. Golden Access will make available to the Customer, training in
the installation and operation of the Product. This training
is available at a rate of $500 per person per day in
accordance with a schedule and location to be agreed upon
between both parties. All travel and related expenses shall be
borne by the Customer. In the event that the Customer elects
to have Golden Access perform the initial installation as per
paragraph 7 below, the training fee will be waived, however,
the Customer will be responsible or the additional living
expenses associated with said training.
8. Golden Access can provide On-site Installation at a rate of $750 per
day plus travel and related expenses.
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10.1 p2
GENERAL TERMS AND CONDITIONS
Clause 1 - Copyright and Confidentiality
1.1 Each Party agrees to maintain in strict confidence all plans,
designs, drawings, trade secrets and other proprietary information
of the other Party which is disclosed pursuant to this Agreement.
1.1 Golden Access retains title to all portions, excluding third party
licenses, of the software associated with the Product. A Non-Disclosure
Agreement, as per Appendix A, shall be signed by both Parties.
Clause 2 - Prices/Payment Terms
2.1 All prices are FOB Miami, FLA., USA
2.2 Golden Access reserves the right to charge interest on all delinquent
payments at an annualized rate of 2 percentage points above the
commercial rate as listed by its banking institution.
2.3 The Golden Access prices do not include the cost to Golden Access or
its employees of any taxes, duties, levies or other like charges
payable by them or any of them under the laws or regulations in force
in countries other than the United States and to the extent that such
taxes, duties, levies and other like charges are required to be paid,
these shall be borne solely by the Customer.
Clause 3 - Warranty
3.1 Golden Access warrants that the Product shall be free of defects and
perform in accordance with Golden Access's specifications for a period
of ninety (90) days from delivery to the Customer. Golden Access's sole
obligation under this warranty shall be to provide remote Technical
Support as outlined in Appendix A in an effort to remedy the defect.
The warranties in this article will be voided if the Product is
modified in any way by the Customer and/or its agents without written
authorization from Golden Access. GOLDEN ACCESS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OF IMPLIED, IMCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Clause 4 - Liability
4.1 Under no circumstances shall Golden Access, its employees or
cont5ractors be liable for any direct, Indirect, Incidental, special,
punitive or consequential damages that may result in any way from
negligence or acts of the Customer or its agents, the failure or
malfunction of non-Golden Access equipment, the Customer's (or
Customer's authorized users) use of, or inability to use the Product or
any part thereof, resulting from errors, omissions, interruptions,
delays in operation or transmission or any failure of performance of
the Internet and/or PSTN networks.
4.2 Neither Golden Access or its third party licensors will be liable for
indirect, incidental, special or consequential damages including but
not limited to lost data or lost profits, however arising, even if it
has been advised of the possibility of such damages. The liability of
Golden Access and its third party licensors for damages under this
agreement shall in no event exceed the amount paid by the Customer to
Golden Access under this Agreement for the Product as to which the
claim arose.
Clause 5 - Force Majeure
5.1 Golden Access shall not be liable for any delay or failure in performance of
any part of this Agreement to the extent such delay or failure is caused by an
even of Force Majeure, including but not limited to, fire, flood, explosion,
accident, war, strike, embargo, government requirement, civil or military
authority, Act of God, inability to secure materials, labour or transportation,
acts of omissions of common carrier or warehouseman, or any other causes beyond
their reasonable control. Any such delay or failure shall suspend the Agreement
until the Force Majeure condition ceases and the Term shall be extended by the
length of the suspension.
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10.1 p3
Clause 6 - Suspension/Termination
6.1 Either Party may, by written notice to the other Party, suspend or
terminate its obligation under the Agreement
a) in the event that either Party shall have failed to pay or authorize
payment of any sum to the other Party when due under the Agreement; or
b) in the event that either Party is in breach of the Agreement
and shall fail after receiving not less than thirty (30) days
written notice to take effective steps to remedy such breach;
or
c) in the event that either Party goes into liquidation except
for the purposes of corporate re-organization or otherwise
ceases trading.
Any suspension or termination as a result of the foregoing, does not
absolve the Customer from its obligations to pay any outstanding
invoices due under the Agreement.
Clause 7 - Effective Date of Agreement
7.1 This Agreement shall become effective on that date which it is duly
initialed, signed and dated by authorized representatives of Golden
Access and the Customer. Neither Party may assign, transfer the whole
or any par of this Agreement to any one without written consent by the
other Party.
Clause 8 - Arbitration and Jurisdiction
8.1 Al differences and disputes between the Parties arising from this Agreement
which cannot be
settles by mutual agreement shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
(ICC). The arbitration proceeding shall take place at Miami, Florida
and the language of the arbitration proceeding, the award and all
documents filed or submitted in connection therewith shall be in
English.
8.2 This Agreement shall be governed, construed and interpreted in
accordance with the laws of the State of Florida, USA.
8.3 All correspondence relevant to the performance of this Agreement shall
be in English and when given to Golden Access, should be addressed to:
Golden Access Group
0000 Xxxxxxxx Xxxxxx X-0000
Xxxxx, XX 00000
And when given to the Customer, should be addressed to:
This Agreement supersedes all other prior discussions and negotiations between
the Customer and Golden Access and sets forth the understanding between both
Parties as to the intent of this Agreement. It may be modified in writing only,
provided it is signed by a duly authorized representative of both Parties.
IN WITNESS WHEREOG, the Parties have executed this Agreement on the date herein;
Golden Access Group Customer
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10-1-4
APPENDIX A
Confidentiality and Non-Disclosure Agreement
This agreement is entered into as of _____________ between ____________and
Golden Access Group, WHEREAS, each entity executing this agreement (hereinafter
"Party")agrees that for the purpose of evaluating a potential business
relationship, the parties will disclose and receive information under the terms
and conditions specified below:
NOW THEREFORE, the parties hereby agree as follows:
1. All communications or data, in any form, which are disclosed by one
Party or any of its subsidiary, patent or associate companies
("Disclosing Party") to the either Party or any of its subsidiary,
parent or associate companies ("Receiving Party") and which are to be
protected hereunder against unrestricted disclosure or competitive use
by the Receiving Party shall be deemed to be "Confidential
Information".
2. All Confidential Information, if in writing or other tangible form,
shall be labeled as "Confidential" at the time of its delivery, and, if
oral, shall be identified as "confidential" prior to disclosure
3. Confidential information of the Disclosing Party shall be treated as
confidential and safeguarded hereunder by the Receiving Party for a
period of two (2) years form the date of disclosure unless earlier
waived in writing by the Disclosing Party.
4. The Receiving Party agrees that (a) any Confidential information
disclosed hereunder shall be used by the Receiving Party solely for the
purpose set forth above and (b) except as may be required by applicable
law or legal process, the Receiving party will not disclose of
disseminate such Confidential information to anyone, except to those
employees (including employees of its parent, subsidiaries and
affiliates) and professional advisers who have the need to know such
Confidential information for the purpose for which it is disclosed,
unless and until such time as such Confidential information:
a) is available generally to the public, other than as a result of a
breach of this Agreement, or,
b) is disclosed lawfully to the Receiving Party by a third party who is
free lawfully to disclose the same, or,
c) is developed independently by the Receiving Party, or,
d) The applicable period of confidentiality pursuant to paragraph 3 has
ended.
e) Is already in the possession of the Receiving Party and is subject to
an existing agreement of confidence between the parties.
6. The Receiving Party shall use reasonable safeguards against the
unauthorized disclosure of confidential and proprietary information and
shall advise all of its employees and professional advisors having
access to Confidential information of the obligations hereunder.
7. Upon expiration of the period of confidentiality, or sooner upon
written request of the Disclosing Party, all Confidential Information
in the possession of the Receiving Party shall be returned to the
Disclosing Party or destroyed, at the option and instruction of the
Disclosing Party.
8. It is understood that this Agreement is not intended to, and does not,
obligate either Party to enter into any further agreements or to
proceed with any relationship or other transaction.
9. This agreement shall be governed by and construed in accordance with the laws
of the State of Florida, USA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date herein.
Company: _______________________________ Golden Access Group
Signature: _______________________________ _______________________
Name: __________________________________ _____________________
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00-0-0
XXXXXXXX X
Golden Access Purchase Agreement
Technical Support Procedures
In the event that the Customer requires remote Technical Support, Golden Access
will offer this service on a Mon.-Fri. (9am EST - 6pm EST) basis. The procedure
is as follows;
1) The Customer may either contact Golden Access at Xxxxxxx@xxxxxxxxxxxx.xxx
or in the event of a critical problem, contact the Golden Access hotline
(x0-000-XXX-XXXX) and report the problem to the customer service
operator.
2) In the event of a non-critical request for Technical Support, Golden
Access will make its best effort to respond to the Customer within the
next available business day to provide further assistance.
3) In the event of a critical request (out of service) for Technical
Support, Golden Access will make its best effort to contact the customer
within 4 hours of the reporting time to commence their investigation into
the problem.
4) If the event described in paragraph 3 above is caused by non-Golden
Access equipment and/or software, it will be the responsibility of the
Customer to directly contact the suppliers for technical support.
5) In the event that a Customer requests on-site support by Golden Access
personnel, the charge will be $US 760 per day plus living expenses and
return business class airfare billed at cost.
6) After the first year, if the Customer requests an extension to the
Technical Support/Software update package, this will be charged at a rate
of 8% of the total purchase price of the Product in operation by the
Customer at the time of the request and payable in full at the beginning
of the extension period.
