Exhibit 10.12
TELSTRA CORPORATION LIMITED
("Telecom")
and
AXICORP PTY LTD
("Service Provider")
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SERVICE PROVIDER AGREEMENT
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1 INTERPRETATION......................................................... 1
2 APPOINTMENT AND OPERATION.............................................. 7
3 OPERATIONS MANUAL...................................................... 9
4 RELATIONSHIP OF PARTIES................................................ 9
5 STEERING COMMITTEE..................................................... 10
6 PERFORMANCE TARGETS.................................................... 11
7 SERVICE PROVIDER'S OBLIGATIONS......................................... 12
8 TELECOM'S OBLIGATIONS.................................................. 15
9 BILLING CUSTOMERS...................................................... 18
10 DISCONNECTION.......................................................... 22
11 PROVISION OF BILLING AND CUSTOMER INFORMATION.......................... 23
12 PROVISION OF THE BILLING ENQUIRY SERVICE............................... 24
13 PROVISION OF FULL CUSTOMER SERVICE..................................... 26
14 PROVISION OF THE CUSTOMER ENQUIRY SERVICE.............................. 28
15 EQUIPMENT.............................................................. 30
16 TERM AND TERMINATION................................................... 31
17 INTELLECTUAL PROPERTY RIGHTS, TRADE NAMES AND TELECOM
CONFIDENTIAL INFORMATION............................................... 34
18 LIMITATION OF LIABILITY AND INDEMNITY.................................. 37
19 ENTIRE AGREEMENT AND AMENDMENT......................................... 38
20 SALE, ASSIGNMENT AND TRANSFER.......................................... 38
21 WAIVER AND VARIATION................................................... 38
22 NOTICES................................................................ 38
23 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS..................... 39
24 SEVERABILITY........................................................... 39
25 EXERCISE OF RIGHTS..................................................... 40
26 FURTHER ASSURANCES..................................................... 40
27 FORCE MAJEURE.......................................................... 40
28 REMEDIES CUMULATIVE.................................................... 40
29 LEGISLATION............................................................ 41
30 SET OFF................................................................ 41
31 APPROVALS AND CONSENTS................................................. 41
32 DUTIES, TAXES, Etc..................................................... 41
33 DISPUTE RESOLUTION..................................................... 42
34 PUBLICITY.............................................................. 42
AGREEMENT
THIS AGREEMENT is made on the Commencement Date.
BETWEEN: TELSTRA CORPORATION LIMITED (ACN 051 775 556) a corporation organised
under the laws of Australia, through its business unit Mobile
Communication Services, having a place of business at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Telecom")
AND: AXICORP PTY LTD (ACN ▇▇▇ ▇▇▇ ▇▇▇) a company incorporated in the State
of Victoria and having its registered office at ▇▇▇▇▇ ▇, ▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Service Provider"),
RECITALS:
Telecom is the holder of a public mobile license under the Act and pursuant to
that license supplies the Mobile Service to the public generally in Australia.
Service Provider is appointed by Telecom to promote the Mobile Services in the
Territory, and to provide certain services to persons acquiring the Mobile
Services, on the terms and conditions of this Agreement.
The services provided by Service Provider under this Agreement are to be rolled
out in three stages. From the commencement of this Agreement, Service Provider
operates as a Premium Telecom MobileNet dealer. In the second stage, which
commences on the Launch Date, Service Provider provides the Billing Service, the
Billing Enquiry Service and the Credit Management Service in addition to its
operation as a dealer. In the third stage, which commences on the Full Customer
Service Launch Date, Service Provider also provides the Full Customer Service.
Telecom acknowledges that the Federal Government's policy, as enacted in the
Act, is to ▇▇▇▇▇▇ competition amongst telecommunications service providers. The
object of this Agreement is to provide Service Provider with the opportunity to
provide certain services typically provided by telecommunication service
providers to persons acquiring the Mobile Services. The purpose of this
Agreement is not to limit or restrict the number of persons employed by Telecom
to provide such services.
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 The following words have these meanings in this Agreement unless the
contrary intention appears.
"Act" means the Telecommunications ▇▇▇ ▇▇▇▇ (Cth).
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"Acceptance Criteria" means the criteria set out in clause 13.2 which
Service Provider must meet prior to commencing the supply of the Full
Customer Service.
"Affiliate" means a person:
(a) who Service Provider wishes to appoint to promote the Mobile Services,
and procure New Connections, in accordance with this Agreement; and
(b) whose appointment has been approved in writing by Telecom; and
(c) whose appointment has not been terminated pursuant to clause 2.9
and "Affiliates" shall be similarly construed.
"AMPS Mobile Sevice" means an analogue cellular mobile service supplied by
Telecom.
"AMPS Connection" means a Connection in relation to the AMPS Mobile
Service.
"Applicable Law" means the Trade Practices ▇▇▇ ▇▇▇▇ (Cth), the Fair Trading
Act 1985 (Vic), any fair trading any legislation in force in the Territory
from time to time, legislation of the Commonwealth, States and Territories
of Australia in force from time to time of a similar nature, principles of
equity and the common law relating to trading or the supply of goods or
services in the Territory, competition or trade practices generally.
"Application Form" has the meaning given to that phrase in clause 7.6(a).
" Beneficial Owner" means a person having an interest as a sole proprietor,
partner or joint venturer in Service Provider or the Business or having a
Relevant Interest in any shares in Service Provider, whether directly or
through one or more interposed companies, partnerships or trust estates,
and includes beneficiaries under any trust or settlement of which Service
Provider or a shareholder in Service Provider is a trustee and any other
grammatical form of "Beneficial Owners" shall bear a similar meaning.
"Billing Enquiry Service" has the meaning given to it in clause 12.1.
"Billing Service" means the assignment by Telecom to Service Provider of
PIP Debts as contemplated by clause 9 of this Agreement and the collection
by Service Provider of those Debts.
"Business" means the business carried out by Service Provider relating to
this
"Business Day" means a day on which banks are open for general banking
business in the place specified in Victoria.
"Churn" means the Connection of a customer who was a customer of another
carrier immediately preceding Connection.
"Commencement Date" means the date specified in Item 1 of Schedule 1.
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"Connection" means a customer who has made an application to Telecom to use
a Mobile Service and that application has been accepted by Telecom so that
the customer is personally entitled to lawfully use the Mobile Service.
"Contract Year" means a period commencing on 1 July in one calendar year
and ending on 30 June in the following calendar year, except the first
Contract Year which commences on the Commencement Date and ends on the
succeeding 30 June.
"Controlled Entity" means:
(a) any body corporate in which Service Provider or any current director
or any person who has been a director in the last 2 years controls the
composition of the board of directors or at any general meeting of
which Service Provider is in a position to cast or control the casting
of more than one half of the maximum number of votes that might be
cast in relation to any motion;
(b) any partnership in which Service Provider is beneficially entitled
either together or separately and whether directly or indirectly to
more than one half of the voting rights, income or capital of the
partnership;
(c) any unincorporated joint venture or consortium in which Service
Provider is beneficially entitled either together or separately and
whether directly or indirectly to more than half one of the voting
rights, output or assets of the joint venture or consortium; and
(d) any trust of which Service Provider is the trustee or to which Service
Provider is beneficially entitled either together or separately and
whether directly or indirectly to more than one half of the voting
rights, income or capital of the trust.
"Credit Management Service" means the credit assessment and bad debt
management services set out in clause 9.19.
"Customer Enquiry Service" has the meaning given to it in clause 14.1.
"Disconnection" means a New Connection which has been discontinued or
suspended.
" Displayed Marks" means the Trade Marks set out in Schedule 4.
"Equipment" means all or any of the following:
(a) RAM Equipment; and
(b) such other things as Telecom supplies to Service Provider from time to
time and determines to be "Equipment" for the purposes of this
definition.
"Force Majeure" in relation to a party, means an act of God, fire,
lightning, explosion, flood, subsistence, insurrection or civil disorder,
war or military operation, government or quasi government restraint,
expropriation, prohibition, intervention, direction or embargo, inability
or delay in obtaining government or quasi government approvals, consents,
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permits, licenses or authorities, industrial disputes of any kind and any
other cause whether similar or not outside of the party affected control.
"Full Customer Service" has the meaning given to it in clause 13.1.
"Full Customer Service Application" has the meaning given to it in clause
13.4.
"Full Customer Service Launch Date" has the meaning given to it in clause
2.3.
"Generic Title" means a title to be determined by Telecom in consultation
with Service Provider to be used to describe participants in the Enhanced
PIP Programme.
"▇▇▇▇▇ ▇▇▇▇" means the total amount of the network activation fees, network
access fees, National Direct Dial call charges and call diversion charges
that Telecom charges a customer in respect of a Connection. All other
charges payable by a customer to Telecom are excluded from the calculation
of the ▇▇▇▇▇ ▇▇▇▇.
"Gross Billing Error" means a manifest and self evident error in
information made available to Service Provider by Telecom pursuant to
clause 9.1.
"GSM Mobile Service" means a digital mobile service commonly known as
"Global System for Mobile Communications" supplied by Telecom.
"GSM Connection" means a Connection in respect of the GSM Mobile Service.
"Information" means information and know how including, but not limited to,
source and object codes, flow charts and logic diagrams, data concepts,
technology, manufacturing processes, industrial, marketing and commercial
knowledge, customer lists and all customer related information whether or
not in printed form.
"Intellectual Property Rights" means all rights conferred under statute,
common law and equity in and in relation to inventions, designs, trade
marks, trade names, logos and get up, circuit layouts, confidential
information and copyright and any other intellectual property rights as
defined by Article 2 of the World Intellectual Property Organisation
Convention of July 1967.
"Launch Date" has the meaning given in clause 2.3.
"mobile service" means a public mobile telecommunications service as
defined in section 25 of the Act.
"Mobile Service" means the AMPS Mobile Service or the GSM Mobile Service
and "Mobile Services" means both of them.
"Net Connections" means the number of New Connections in a Quarter less the
number of Disconnections in that Quarter.
"New Connection" means a Connection in relation to a Mobile Service that
Telecom is reasonably satisfied was arranged or procured by Service
Provider or an Affiliate in the Territory after the Commencement Date.
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"Operations Manual" means the Enhanced PIP operations manual to be
developed by the parties in accordance with clause 3 setting out, amongst
other things, the manner in which the parties must perform certain of their
obligations under this Agreement.
"PIP Connection" means:
(a) a New Connection, or
(b) a Serviced Connection.
"PIP Debt" means Telecom Debts which have been offered for assignment by
Telecom and deemed to have been accepted by Service Provider in accordance
with clause 9 of this Agreement.
"Quarter" means a 3 month period (or part thereof) commencing on 1 January,
1 April, 1 July or 1 October.
"RAM Equipment" means rapid access module hardware for use by Service
Provider in the electronic processing of customer applications at Service
Provider's premises.
"Related Body Corporate" has the meaning given to that phrase in section 9
of the Corporations Law.
"Relevant Interest" has the meaning given to that phrase in Division 5 of
Part 1.2 of the Corporations Law.
"Service Provider Confidential Information" means all information disclosed
or otherwise provided by Service Provider to Telecom or otherwise obtained
by Telecom relating to or developed in connection with the Business which:
(a) is not Telecom Confidential Information; and
(b) is not, by reason of general publication or the like, readily
available in the public domain (other than as a result of an
unauthorised disclosure or other breach of confidence).
"Serviced Connection" means a Connection in respect of which the relevant
customer has requested or consented to Service Provider providing the
Billing Service. the Billing Enquiry Service, the Credit Management Service
and, if applicable, the Full Customer Services and Telecom has agreed to
the provision of those services in respect of that Connection.
"Steering Committee" has the meaning given in clause 5.1.
"Telecom Confidential Information" means all information disclosed or
otherwise provided by Telecom to Service Provider or otherwise obtained by
Service Provider relating to or developed in connection with the business
of Telecom, a Mobile Service or customers who have contracted to use a
Mobile Service and any Value Added Services, which is not, by reason of
general publication or the like, readily available in the public
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domain (other than as a result of an unauthorised disclosure or other
breach of confidence).
"Telecom Debt" means a debt owed to Telecom by a customer in respect of a
PIP Connection or a Value Added Service supplied in connection with that
PIP Connection.
"Territory" means the territory specified in Item 3 of Schedule 1.
"Trade ▇▇▇▇" means any trade ▇▇▇▇ owned by Telecom (whether registered or
unregistered).
"VAS Fee%" has the meaning set out in paragraph 1.3(c) of Schedule 2.
"Value Added Services" means the "MobileNet Memo" service, the "MobileNet
MessageBank" service, the "Safe'n Sure" insurance service and the
"MobileNet EasyCall" service.
12 In this Agreement unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) a reference to an agreement or another instrument includes any
variation or replacement of either of them;
(c) a reference to an annexure or schedule is a reference to an annexure
or schedule to this Agreement and a reference to this Agreement
includes a recital, annexure or schedule;
(d) a reference to a clause is a reference to a clause of this document
and a reference to a paragraph of the schedules;
(e) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, reenactments or replacements of any of them;
(f) the word person includes a firm, body corporate, unincorporated
association or an authority;
(g) a reference to a person includes the person's executors
administrators, successors, substitutes (including, without
limitation, persons taking by novation) and assigns;
(h) all dollar amounts are expressed in Australian dollars;
(i) if the day on which the payment of money falls due is not a Business
Day, the due date shall be deemed to be the next Business Day;
(j) a reference to a third person is a reference to a person who is not a
party to this Agreement; and
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(k) an agreement representation or warranty on the part of or in favour of
two or more persons binds or is for the benefit of them jointly and
severally.
1.3 For the purposes of this Agreement each Affiliate shall be deemed to be a
contractor of Service Provider regardless of whether or not any express
contract exists between Service Provider and that Affiliate.
1.4 Headings are included for convenience and do not affect the interpretation
of this Agreement.
2 APPOINTMENT AND OPERATION
2.1 Telecom appoints Service Provider on the terms of this Agreement in the
Territory to:
(a) promote the Mobile Services; and
(b) provide the Billing Service, the Billing Enquiry Service, the Credit
Management Service and the Full Customer Service to certain persons
acquiring the Mobile Services;
(c) and Service Provider agrees to act in that capacity.
2.2 Service Provider acknowledges that its appointment under clause 2.1 is non-
exclusive.
2.3 (a) Service Provider must not commence providing the Billing Service, the
Billing Enquiry Service or the Credit Management Service until a
launch date to be determined by the Steering Committee ("Launch
Date"). The parties acknowledge that they will aim for a Launch Date
of 1 July 1995, but Telecom does not represent or warrant that that
date or any other is achievable or will be achieved.
(b) Service Provider must not commence providing the Full Customer Service
unless Service Provider's Full Customer Service Application has been
approved in writing by Telecom. The date of commencement of the Full
Customer Service shall be determined by the Steering Committee ("Full
Customer Service Launch Date"). The parties acknowledge that they
will aim for an Full Customer Service Date which is no longer than 1
Month after the date on which Service Provider makes the Full Customer
Service Application pursuant to clause 13.4, but Telecom does not
represent or warrant that that date or any other is achievable or will
be achieved.
2.4 Any existing agreement, Strategic Partnership Agreement, SPA Replacement
Agreement or FlexiPlan 1000 agreement relating to the Mobile Services
between Telecom and Service Provider or any Related Body Corporate of
Service Provider terminates on and from the Commencement Date. Service
Provider warrants that it is authorised to enter into this clause 2.4 on
behalf of all of its Related Bodies Corporate who are parties to such an
agreement.
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2.5 Subject to clause 2.6, Service Provider may not subcontract the performance
of any of its obligations under this Agreement without the prior written
consent of Telecom (which consent must not be unreasonably withheld).
2.6 Service Provider may promote the Mobile Services, and procure New
Connections, by means of Affiliates. The promotion of the Mobile Services
and the procurement of New Connections for the purposes of this clause 2.6
does not include the provision of the Billing Service, Billing Enquiry
Service, Credit Management Service or Full Customer Service by an
Affiliate. Subject to the terms of this Agreement, the remuneration of
Affiliates shall be the sole responsibility of Service Provider and
Telecom shall not be required to make any payment to Affiliates whatsoever.
2.7 Service Provider must ensure that Affiliates:
(a) at all times act in a manner that is consistent with this Agreement;
and
(b) do not do, or fail to do, any act or thing which if done, or failed to
be done, by
Service Provider would amount to a breach of this Agreement.
2.8 Service Provider agrees to indemnify, and keep indemnified, Telecom from
and against liability and all loss and damage of any kind whatsoever
(including indirect, special or consequential loss or damage) caused
directly or indirectly from any breach by Service Provider of clause 2.7.
2.9 The appointment of an Affiliate:
(a) may be terminated by Telecom giving notice to Service Provider if the
Affiliate does, or falls to do, any act or thing which if done, or
failed to be done, by Service Provider would amount to a breach of
this Agreement;
(b) may be terminated at any time by Service Provider provided Service
Provider gives Telecom 30 days prior written notice of that
termination; and
(c) automatically terminates upon the expiration or termination of this
Agreement.
2.10 Service Provider must ensure that, where Telecom has a right under this
Agreement to carry out any inspection or other conduct in relation to
Service Provider or any of its premises, Telecom can carry out such an
inspection or other conduct in relation to any Affiliate or any of its
premises.
3 OPERATIONS MANUAL
3.1 Telecom and Service Provider acknowledge that many of the detailed
procedures necessary or desirable to fully implement this Agreement have
not yet been agreed upon. Telecom and Service Provider agree to use their
best efforts to carry out bona fides negotiations in relation to, and agree
upon, such procedures. Where appropriate, these procedures will be
included in the Operations Manual.
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3.2 The parties shall use their best endeavours to develop the Operations
Manual as soon as practicable. The operations Manual shall be developed,
and may be amended from time to time, by Telecom in consultation with
Service Provider. Service Provider acknowledges that:
(a) It will be necessary for Telecom to ensure that the Operations Manual
is substantially identical to any operations manual developed pursuant
to an agreement similar to this Agreement entered into by Telecom and
another party; and
(b) It is likely that it will be necessary for Telecom's computer systems
to treat Service Provider substantially identically to such other
parties.
3.3 Where this Agreement provides that the Operations Manual shall contain
certain matters (including performance benchmarks or operational
specifications) with which Service Provider is obliged to comply, and those
matters are not agreed by the Steering Committee within 90 days of the time
at which such matters are first applicable to Service Provider, then
Telecom may by written notice to Service Provider terminate this Agreement
with immediate effect.
4 RELATIONSHIP OF PARTIES
4.1 Subject to clause 4.2, Service Provider is an independent contractor and is
not the agent, joint venturer, partner or employee of Telecom and Telecom
shall not be obligated by any agreements, representations or warranties
made by Service Provider to any person. Service Provider and Telecom
acknowledge that neither has the power or authority, directly or
indirectly, or through its servants or agents, to bind the other party with
a customer or a third person, or otherwise to negotiate or enter into a
binding relationship for or on behalf of the other party.
4.2 Service Provider is the agent of Telecom for the sole purposes of receiving
from customers executed and correctly and fully completed Application Forms
and processing those Application Forms in accordance with this Agreement
and for the purpose of holding and of using any customer information
supplied by Telecom.
5 STEERING COMMITTEE
5.1 The parties will establish a steering committee ("Steering Committee")
whose primary function will be to monitor the practical operation of this
agreement and to provide a forum in which the parties can raise matters in
relation to which the parties are required or wish to consult with each
other.
5.2 Each party must appoint two representatives to the Steering Committee. At
least one representative of each party will have authority to make binding
decisions for the party they represent.
5.3 The parties agree that:
(a) the Steering Committee will meet monthly or as the parties otherwise
agree;
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(b) the Steering Committee's chairperson will alternate from one meeting
to the next between the parties' representatives;
(c) responsibility for taking minutes, distributing draft minutes,
incorporating amendments to draft minutes, distributing draft agendas
and incorporating amendments to draft agendas, will alternate between
representatives from one meeting to the next;
(d) a party may of its own motion call a meeting of the Steering Committee
provided that it provides the other party with no less than two
business days' notice of the time and place of such meeting; and
(e) there must be at least one representative of each party with the
authority referred to in clause 5.2 present at the time and place
nominated for the Steering Committee meeting before that meeting can
proceed. Each party shall use its best endeavours to ensure that such
a representative is present at the time and place nominated for any
Steering Committee meeting.
5.4 The parties' representatives on the Steering Committee must examine any
matter for consultation promptly and must use their best endeavours acting
in good faith to reach agreement in relation to those matters.
5.5 The Steering Committee shall meet at least once per quarter or less often
if mutually agreed by the parties for the purpose of reviewing the
performance of this Agreement, and the parties rights (including rights to
remuneration) and obligations under this Agreement, provided that no
amendments shall be made to the Agreement unless agreed to in writing by
the parties.
6. PERFORMANCE TARGETS
6.1 Subject to clause 6.2 and 6.3, the Steering Committee must on or before 30
June each year (or such other date as may be agreed) and agree upon a set
of performance targets for Service Provider for the year commencing on 1
July of that year and ending on 30 June of the following year. If the
Steering Committee fails to agree upon such targets by 30 June (or such
other date as may be agreed) of a particular year then Telecom may
terminate this Agreement by giving 30 days notice in writing. A set of
performance targets may include targets relating to:
(a) maximum and/or minimum New Connections or Net Connections relating to
either or both of the AMPS Mobile Service and the GSM Mobile Service;
(b) churning customers from a competing mobile service to a Mobile Service
or migrating customers from the AMPS Mobile Service to the GSM Mobile
Service;
(c) the types of customers Service Provider is required to connect to the
Mobile Services;
(d) the performance of the Billing Service, the Billing Enquiry Service,
the Credit Management Service and, if applicable, the Full Customer
Service; and
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(e) maximum and/or minimum penetration of each of the Value Added
Services.
6.2 The set of performance targets to apply for the three period from the
Launch Date are:
(a) Service Provider must achieve at least 2000 PIP Connections per month
of which.
(i) at least 1000 must be New Connections; and
(ii) at least 1000 must be Serviced Connections;
(b) of the PIP Connections:
(i) 60% (+/- 2%) must be customers on Flexiplan 10, Flexiplan 20 or
Flexiplan Standard;
(ii) 20% (+/- 2%) must be customers on Flexiplan 80, Flexiplan 130 or
Flexiplan 240; and
(iii) 20% (+/- 2%) must be customers on Corporate Flexiplan;
(c) at least 60% of New Connections must be GSM Connections;
(d) of the New Connections that are GSM Connections:
(i) at least 45% must have immediately before GSM Connection
formerly been AMPS or GSM customers of another carrier;
(ii) at least 40% must have immediately before GSM Connection
formerly been customers in respect of the AMPS Mobile Service;
and
(iii) not more than 15% must have immediately before GSM Connection
formerly been persons who did not acquire a mobile service;
(e) of the New Connections that are AMPS Connections:
(i) at least 60% must have immediately before AMPS Connection
formerly been AMPS or GSM customers of another carrier;
(ii) not more than 40% must have immediately before AMPS Connection
formerly been persons who did not acquire a mobile service; and
(f) the Service Provider must achieve the following rates of adoption by
PIP Connections of the Value Added Services:
(i) MessageBank - use by at least 40% of PIP Connections;
(ii) Memo - use by at least 10% of PIP Connections;
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(iii) Insurance (Safe'n'Sure) - use by at least 10% of PIP
Connections; and
(iv) EasyCall (MobileNet) - use by at least 3% of PIP Connections.
6.3 Prior to the expiration of the performance targets specified in clause 6.2
the Steering Committee must specify new performance targets for the period
from the expiration of those performance targets to 30 June 1996. If no
such performance targets are agreed prior to the expiration of the
performance targets set out in clause 6.2 then Telecom may terminate this
Agreement by giving 30 days notice in writing.
7 SERVICE PROVIDER'S OBLIGATIONS
7.1 Service Provider must, during the term of this Agreement:
(a) to the extent permissible by Applicable Law and subject to clauses 6.1
and 6.2, at all times use its best endeavours to promote the Mobile
Services and the Value Added Services and to maximise the number of
New Connections to the Mobile Services within the Territory;
(b) carry out the Billing Service, the Billing Enquiry Service, Credit
Management Service and, if applicable, the Full Customer Service in an
efficient and professional manner and in accordance with this
Agreement and the Operations Manual;
(c) provide and maintain suitable and sufficient facilities, staff and
resources to perform its obligations under this Agreement;
(d) establish a dealer network owned and operated by Service Provider or
affiliated with Service Provider;
(e) establish an infrastructure to co-ordinate corporate, sales,
marketing, operations and wholesale functions;
(f) provide a distribution channel management organisation to manage
Service Provider's retail stores, dealers, telemarketing activities
and other distribution activities;
(g) establish a 24-hour nationwide mobile phone repair service;
(h) comply with Telecom's requirements for prominent Telecom public
display signage within Service Provider owned, operated or affiliated
stores;
(i) inform customers in respect of PIP Connections that complaints
relating to the Mobile Services must be directed to Service Provider
and that Service Provider will be the assignee of Telecom of PIP Debts
and will be collecting those PIP Debts in that capacity;
(j) use its best endeavours to ensure that customers purchasing mobile
phones are fully and properly instructed in all aspects of the
operation of the phones and the relevant Mobile Service;
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(k) sell only AUSTEL approved mobile phones to customers;
(l) use its best endeavours not to do or permit the doing (whether by
customers or itself) of anything likely to impair, interfere with or
damage a Mobile Service network or its operation;
(m) immediately advise Telecom if it has knowledge that any person is
infringing or attempting to infringe any Intellectual Property Rights
owned or used by Telecom;
(n) permit persons authorised by Telecom to inspect and take copies, at
any reasonable time, of all records relating to the performance of
this agreement in the power, possession or reasonable control of
Service Provider and furnish to Telecom, upon request, such reports as
Telecom requires in connection with Service Provider's obligations
under this Agreement;
(o) without limiting the generality of clause 7. 1 (n) above, keep full,
true and accurate records in such detail and format as Telecom may
reasonably require from time to time relating to:
(i) PIP Connections; and
(ii) the performance of the Billing Service, the Billing Enquiry
Service, the Credit Management Service and, if applicable, the
Full Customer Service;
(p) comply with all statutory and common laws including, but not limited
to, the Applicable Law;
(q) subject to clause 17, at all times identify itself by means of the
Generic Title and do so in accordance with such instructions as are
provided by Telecom from time to time; and
(r) maintain all permits and registrations necessary to entitle it to
lawfully perform its obligations under, and the activities
contemplated by, this Agreement.
7.2 Service Provider must meet the performance targets set out in clauses
6.1 and 6.2 and any performance targets subsequently set by the
Steering Committee pursuant to clauses 6.1 and 6.3. If Service Provider
fails to meet and comply with such targets the matter must be referred to
the Steering Committee for resolution by direct negotiation. If the matter
cannot be resolved within 30 days of being referred to the Steering
Committee, Telecom may at its option by providing 14 days written notice:
(a) specify new rates of remuneration to replace those set out in Schedule
2; or
(b) terminate this Agreement.
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7.3 Prior to the Launch Date and before the commencement of each Quarter
Service Provider must provide Telecom with the opportunity to review
Service Provider's proposed must provide distribution and business plans
and obtain Telecom's approval of those plans. The distribution plan must
set out all distribution activities and campaigns to be carried out by
Service Provider.
The business plan must set out all activities and campaigns to be carried
out by Service Provider in the following Quarter in relation to Service
Provider's performance of its obligations under this Agreement. The
business plan includes, but is not limited to, information concerning
Service Provider's business structure, the location of Service Provider's
activities, the promotion by Service Provider of particular goods or
services or both, the targeting of particular geographic areas or
particular customers or classes of customers, and other matters related to
the management, structure and operation of the Mobile Services Division of
Service Provider. The business plan must also detail any proposed
promotion or supply of a Mobile Service in conjunction with a
telecommunications service that competes with a telecommunications service
supplied by Telecom.
7.4 Service Provider must not carry out any activity or campaign other than in
accordance with a business plan approved in writing by Telecom pursuant to
clause 7.3.
7.5 Service Provider shall not make any representation, or statement, to any
person with respect to a Mobile Service, its suitability for any particular
use, compatibility with any equipment, its characteristics, performance or
otherwise, that is inconsistent with any written specifications relating to
the Mobile Service provided by Telecom to Service Provider specifically for
the purpose of being passed on to customers.
7.6 Service Provider must:
(a) ensure that each application by a customer for supply of a Mobile
Service is made on an application form in the form approved by Telecom
from time to time (the "Application Form");
(b) ensure that each customer agrees to the disclosure and use of customer
information by Telecom and Service Provider for the purposes of the
provision of telecommunications services and the services described in
clause 2.1(b) to the customer (including the promotion of those
services and any related services), and that such agreement is
recorded on each customer Application Form; and
(c) process each Application Form in accordance with the Operations Manual
or as agreed between the parties.
7.7 Subject to clause 7.7A, to the extent permitted by Applicable Law, Service
Provider shall not and shall procure that each of its Related Bodies
Corporate and each Controlled Entity do not during the term of this
Agreement:
(a) promote a mobile service other than the Mobile Services or canvass any
customer to connect to a mobile service which competes with a Mobile
Service;
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(b) display signage or merchandising material at any retail store or
retail premises (or part thereof) wholly owned or operated by Service
Provider which promotes a mobile service that competes with a Mobile
Service; or
(c) display signage or merchandising material at any retail store or
retail premises (or part thereof) wholly owned or operated by Service
Provider which promotes any carrier (as
defined in the Act) other than Telecom, or any provider of
telecommunications services other than Telecom or Service Provider.
7.7A Clause 7.7 does not apply to a Related Body Corporate of the Service
Provider that is not a Controlled Entity and is totally independent of the
Service Provider including having independent operations, systems, staff,
management, premises, distribution channels, funding and resources.
7.8 (a) Nothing in this Agreement shall prevent Service Provider from
complying with a request from a customer to be corrected to a mobile
service which competes with a Mobile Service.
(b) If, at any time, more than 5% of the customers connected to a mobile
service by Service Provider are connected to mobile services other
than Mobile Services. Service Provider shall immediately notify
Telecom of that fact in accordance with clause 22.
7.9 Nothing in this Agreement limits the manner in which, or extent to which,
Telecom can restructure its work practices and systems or deal with its
employees provided that such conduct is not inconsistent with this
Agreement.
8 TELECOM'S OBLIGATIONS
8.1 Subject to clause 7.2 and this clause 8. 1, Telecom agrees to pay to
Service Provider the commission and fees specified in Schedule 2 in respect
of the provision of the services described in clause 2.1. The commission
and fees specified in Schedule 2 apply to published PMTS tariffs current on
the date this Agreement was made ("Existing Tariffs"). Where there is a
variation to an Existing Tariff ("Varied Tariff") or where a tariff comes
into force for which there was no corresponding Existing Tariff ("New
Tariff"), then the commission and fees contained in Schedule 2 shall apply
to the Varied tariff or the New Tariff unless Telecom notifies Service
Provider in writing that the commission and fees contained in Schedule 2 do
not apply to that Varied Tariff or New Tariff.
Where Telecom does so notify Service Provider within 1 month of the coming
into force of the Varied Tariff or New Tariff, the matter shall be referred
to the Steering Committee whereupon the parties shall be referred to the
Steering Committee whereupon the parties shall agree the levels of
remuneration applicable in respect of PIP Connections acquiring services
under the Varied Tariff or New Tariff. For the avoidance of doubt, the
commission and fees contained in Schedule 2 do not apply in respect of a
Connection if Telecom's charges in relation to that Connection are not
contained in a published PMTS tariff.
If the Steering Committee is unable to reach agreement on the level of
remuneration to apply to the New Tariff or the Varied Tariff within 1 month
of the matter being referred to it, either party shall be entitled to
terminate this Agreement.
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8.2 The obligation to pay an amount under clause 8.1 is to be satisfied by
deducting the commission and the fee from an amount payable to Telecom
under clause 9.4.
8.3 Telecom must:
(a) supply the Mobile Services in accordance with Telecom's PMTS Tariff
filed with AUSTEL (as amended from time to time) or in accordance with
paragraph 2.3 of Schedule 2;
(b) operate and maintain the Mobile Service network infrastructure in
accordance with good telecommunications engineering practice;
(c) promote and advertise the Mobile Services through mainstream marketing
including television, radio and the print media;
(d) provide Service Provider with up to date information relating to
Telecom's terms and conditions of supply of, including Telecom's fees
and charges for, the Mobile Services;
(e) without limiting the generality of clause 8.3(d), notify Service
Provider of any and all relevant and material amendments to Telecom's
PMTS Tariff filed with AUSTEL;
(f) provide Service Provider with such technical and product information
and material relating to the Mobile Services as is agreed between the
parties from time to time to assist Service Provider in the
performance of its obligations under this agreement and, in any event,
all appropriate technical and product information routinely made
available to Telecom MobileNet Premium Dealers;
(g) provide Service Provider with such marketing information, promotional
literature and product support material relating to the Mobile
Services as is agreed between the parties from time to time;
(h) provide Service Provider with Equipment and training to assist it to
perform its obligations under this Agreement;
(i) provide a dedicated account manager or account management team for
Service Provider with responsibilities including, but not limited to:
(i) acting as a liaison between Telecom and Service Provider in
relation to Service Provider's and Telecom's rights and
obligations under this Agreement;
(ii) advising Service Provider on mobile network rollout and Mobile
Service availability on a regular basis;
(iii) advising Service Provider on marketing initiatives and sales
programs relating to the Mobile Services;
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(iv) advising Service Provider in relation to mobile dealer
acquisitions and, where appropriate, acting as mobile dealer
liaison; and
(v) assisting Service Provider in securing its hardware requirements;
(j) where available, provide international roaming services to customers
referred to Telecom by Service Provider in accordance with the
Operations Manual;
(k) provide Service Provider with access to mobile tariffs comparison
data;
(l) provide Service Provider with advice relating to the network alarms
and fault reporting systems specified in the Operations Manual;
(m) provide Service Provider with advice relating to customer credit limit
overrun alarms in the manner specified in the Operations Manual; and
(n) use its best endeavours to ensure that customers migrating from the
AMPS Mobile Service to the GSM Mobile Service will be able to retain
the last 6 digits of their mobile phone numbers (unless inconsistent
with Telecom's numbering policies in relation to the GSM Mobile
Service) and will be able to divert calls being made to their old
mobile phone number to their new mobile phone number for a reasonable
period after migration.
8.4 Telecom must:
(a) at its expense train an employee or officer of Service Provider in
relation to the manner in which Service Provider must carry out its
obligations under this Agreement so that that employee or officer can
provide similar training to other Service Provider employees; and
(b) invite representatives of Service Provider to attend conferences and
training programs relating to the Mobile Services.
8.5 Telecom shall not be responsible for travelling and accommodation expenses
incurred by Service Provider employees, officers or representatives in
connection with the activities referred to in clause 8.4.
8.6 In addition to the remuneration specified in Schedule 2, Telecom must make
available to Service Provider the equivalent of the following benefits and
allowances typically made available to Telecom MobileNet Premium Dealers
from time to time:
(a) participation in Telecom's churn incentive programmes;
(b) if Telecom launches a promotion involving discounted handsets, access
to such discounted handsets and, if those handsets are not available,
Telecom must meet with Service Provider and discuss in good faith
whether alternative handsets could be made available for the purposes
of the promotion; and
(c) participation in Telecom's mobile service promotion programmes,
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provided that Service Provider's rights in respect of such benefits and
allowances shall;
(d) apply only for so long as those benefits or allowances are typically
available to Telecom MobileNet Premium Dealers; and
(e) not be any greater than the rights of Telecom MobileNet Premium
Dealers.
9 BILLING CUSTOMERS
9.1 Telecom agrees from time to time, and in any event before the times
specified in the Operation Manual, to make available to Service Provider
information relating to and specifying certain Telecom Debts for sale to
Service Provider in the manner at out in clause 11.
9.2 The making available by Telecom of the information relating, to the Telecom
Debts specified in that information in accordance with clause 9.1 and in
the manner specified by clause 11 will constitute an offer by Telecom to
assign to Service Provider all of the Telecom Debts specified in that
information.
9.3 The purchase price of a Telecom Debt is the amount of the Telecom Debt
after taking into account any Gross Billing Error in respect of the Telecom
Debt.
9.4 Telecom's offer to assign the Telecom Debts specified in the information
will be deemed to be accepted in respect of all of the Telecom Debts
specified in the information (without the need for any notification of
acceptance to Telecom) immediately upon the Service Provider paying the sum
of $10.00 to Telecom.
Upon acceptance of the offer to assign the Telecom Debts title to the
Telecom Debts will vest in Service Provider and become PIP Debts. Service
Provider undertakes to Telecom not to seek payment of any PIP Debt until
that PIP Debt has vested in Service Provider by operation of this clause
9.4.
9.5 The payment referred to in clause 9.4 must in respect of the amount
described in clause 9.4 be made in cash or company cheque.
9.6 (a) If Service Provider wishes to accept Telecom's offer (which acceptance
must be in the manner set out in clause 9.4), then payment to Telecom
must be made on or before 30 days after the information referred to in
clause 9.1 is made available to Service Provider.
(b) If Service Provider does not accept Telecom's offer in accordance with
clause 9.6(a) by payment on or before 30 days after the information
referred to in clause 9.1 is made available to Service Provider,
Telecom may by notice to Service Provider terminate this Agreement
with immediate effect.
9.6A If the Service Provider accepts Telecom's offer to assign Telecom Debts
specified in the information relating to those Telecom Debts then the
Service Provider shall in respect of the PIP Debts pay to Telecom 30 days
after acceptance of the offer the aggregate amount of the PIP Debts which
are comprised in the Telecom Debts assigned less:
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(a) any Gross Billing Errors; and
(b) the sum of $10.
9.6B The payment referred to in clause 9.6A must:
(a) in respect of the amount described in clause 9.6A less the commission
and fee under Schedule 2 in respect of the relevant PIP Connections,
be made in cash or company cheque; and
(b) in respect of the amount described in clause 9.6A equal to the
commission and fee under Schedule 2 in respect of the relevant PIP
Connections, be made by the set off of the obligation of Telecom to
pay that commission and fee to Service Provider in respect of the
relevant PIP Connections.
9.7 [Clause deleted].
9.8 If Telecom disputes that a Gross Billing Error has occurred the dispute
shall be immediately referred to the Steering Committee.
9.9 If the Steering Committee does not agree that a Gross Billing Error has
occurred, Service Provider must pay to Telecom any amount withheld pursuant
to clause 9.4(b) on or before the later to occur of:
(a) the date specified by clause 9.6; and
(b) 7 days after the ruling on the dispute by the Steering Committee.
9.10 Service Provider must comply with the Operations Manual when collecting PIP
Debts.
9.11 Any ▇▇▇▇ or account sent by Service Provider to a customer in relation to a
PIP Debt must:
(a) be in a form approved by Telecom;
(b) state separately the amount of each Telecom fee or charge levied in
respect of a Mobile Service or a Value Added Service constituting a
component of that PIP Debt and prominently identify Telecom as the
supplier of the relevant Mobile Service and any Value Added Services;
and
(c) not demand payment of any Telecom fee or charge in respect of a Mobile
Service other than Telecom's applicable fee or charge in respect of
the Mobile Service as specified by the information made available to
Service Provider by Telecom under clause 9.1 and not allow any rebate,
refund, discount or similar payment in respect of that Mobile Service
from such fee or charge other than as specified in that information or
otherwise authorised in writing by Telecom from time to time.
9.12 The procedure for the granting of credits to customers in relation to PIP
Connections shall be set out in the Operations Manual. Where such a
procedure is not so set out, Service Provider shall not grant such credits
without authorization in writing from Telecom. The Operations Manual shall
provide that Service Provider shall bear the entire cost of credits
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which are not related to difficulties experienced by the customer in
relation to the technical operation of the relevant Mobile Service or any
Value Added Service.
9.13 If Service Provider has not complied in full with its obligations under
clause 9.4 in respect of a particular Telecom Debt and Service Provider
receives from the customer moneys in respect of that Telecom Debt, Service
Provider:
(a) must upon receipt of those moneys immediately pay those moneys (to the
extent to which Service Provider has not already made payment under
clause 9.4 in respect of that Telecom Debt) to Telecom; and
(b) pending such payment, hold those moneys on trust for Telecom.
Telecom may in its absolute discretion allocate any shortfall in the amount
payable by Service Provider under clause 9.4 to any Telecom Debt.
9.14 Service Provider agrees that information made available under clause 9.1 is
prima facie evidence that the Telecom Debts specified by that information
are owed to Telecom by the customer and that the relevant Mobile Service
has been supplied to that customer in the manner specified by that
information.
9.15 If Service Provider establishes to the reasonable satisfaction of Telecom
that:
(a) information made available to Service Provider under clause 9.1 is
inaccurate; and
(b) as a result Service Provider has made a payment to Telecom under
clause 9.2 in excess of that which it would have made had the
information been accurate,
Telecom must pay to Service Provider an amount equal to the amount of that
excess within 30 days together with interest calculated in accordance with
clause 9.17.
9.16 Telecom and Service Provider must carry out the reconciliation procedures
set out in the Operations Manual at least once every six months or with
such frequency as may be agreed.
9.17 Without limiting the generality of clause 16.2(g), if a party is in breach
of a payment obligation under this Agreement that party must pay to the
other party interest on the amount of that payment calculated daily at an
annual rate equal to 1.5% above the Commonwealth Bank of Australia's
corporate reference rate as published from time to time (or any similar
rate published by the Commonwealth Bank of Australia from time to time)
from the date the payment became payable until the date the payment is paid
in full.
9.18 Service Provider acknowledges and agrees that:
(a) provided a PIP Debt has been assigned to Service Provider in
accordance with this clause 9, Telecom shall not be liable to Service
Provider in the event that Service Provider cannot collect all or any
of a PIP Debt;
(b) provided a PIP Debt has been assigned to a Service Provider in
accordance with this clause 9, Telecom shall not be liable for, or in
relation to, any fraud or dishonesty committed by any customer
relating to that PIP Debt; and
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(c) Telecom may disclose information to third parties including other
carriers relating to the Mobile Services, and the acquisition by
customers of the Mobile Services, pursuant to interconnect or other
agreements or arrangements to the extent that disclosure is required
by those agreements or arrangements.
9.19 Service Provider must carry out the following in relation to credit
assessment and bad debt management ("Credit Management Service"):
(a) ensure that it carries out a credit check in respect of each customer
applying for the supply of a Mobile Service in the manner set out in
the Operations Manual;
(b) not process any application for the supply of a Mobile Service by a
customer who falls to meet the credit worthiness requirements set out
in the Operations Manual; and
(c) ensure that it complies with the bad debt collection methods as set
out in the Operations Manual.
9.20 Service Provider must, upon Telecom giving reasonable notice, include with
any ▇▇▇▇ sent to customers in respect of PIP Connections any documentation,
including promotional material, nominated by Telecom. Service Provider will
procure delivery of such documentation to the relevant customers at its
own cost and expense. Telecom will bear the cost and expense of
production of such documentation.
9.21 Service Provider acknowledges and agrees that Telecom has the unqualified
right to contact, correspond with, deliver documentation to, or otherwise
deal with any customer, including any PIP Connection provided that such
conduct is not inconsistent with this Agreement.
9.22 Prior to the Launch Date and before the commencement of each Quarter,
Service Provider's must provide Telecom with the opportunity to review
Service Provider's proposed marketing plan and obtain Telecom with the
opportunity to review Service Provider's proposed must set out all
marketing and promotional activities and campaigns to be carried out by
Service Provider in respect of the Mobile Services, Value Added Services
and any services specified in clause 2.1. Also, it must detail any
proposed promotion or supply of a Mobile Service in conjunction with a
telecommunications service that competes with a telecommunications service
supplied by Telecom.
9.23 Service Provider must not carry out any marketing or promotional activity
or campaign in respect of the Mobile Service, Value Added Services or any
service specified in clause 2.1 other than in accordance with a
marketing plan approved in writing by Telecom pursuant to clause 9.22.
10 DISCONNECTION
10.1 Telecom must disconnect a PIP Connection from the Mobile Service as soon as
practicable after Service Provider has established to the satisfaction of
Telecom that:
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(a) despite Service Provider having attempted to collect the relevant PIP
Debt in the manner set out in the Operations Manual, Service Provider
has been unable to collect that PIP Debt;
(b) the customer in respect of that PIP Debt has requested Service
Provider to procure the disconnection of that PIP Connection; or
(c) disconnection of that PIP Connection is otherwise necessary. Telecom
will not refuse any reasonable request to disconnect a PIP customer
pursuant to this clause 10.1(c).
10.2 Telecom reserves the right to disconnect any PIP Connection in accordance
with Telecom's normal operational procedures provided Telecom does not in
respect of such disconnections treat PIP Connections differently to
Connections procured by Telecom or another of Telecom's MobileNet dealers.
10.3 Telecom must execute a legal assignment to Service Provider of any PIP Debt
if:
(a) Telecom has disconnected that PIP Connection under clause 10.1; and
(b) Service Provider can establish to the reasonable satisfaction of
Telecom that Service Provider will not be able to collect the PIP Debt
without commencing legal proceedings against the customer.
10.4 Service Provider must at its own expense take all steps necessary to ensure
any assignment of a Debt made pursuant to clause 10.3 is lawful and
complies with all legal requirements including, without limitation, any
requirements relating to registration or notification of that assignment.
Telecom shall, at Service Provider's cost, provide Service Provider with
such reasonable assistance as Service Provider may require in relation to
its obligations under this clause 10.4.
10.5 Service Provider has no right to, and must not attempt to, commence any
legal proceedings
in its own name or in the name of Telecom in relation to any PIP Debt until
that P Debt has been legally assigned to Service Provider under clause
10.3.
10.6 Service Provider shall provide Telecom with such documentary or other
evidence as Telecom may reasonably require to satisfy itself of any of the
matters referred to in clauses 10.1 and 10-3(b).
11 PROVISION OF BILLING AND CUSTOMER INFORMATION
11.1 Each party must provide the other party with access to information as set
out in the Operations Manual which is stored on its computer system or
using any other means. Such access shall be provided in the manner set out
in the Operations Manual. Such access must be used solely for the purpose
of:
(a) in the case of Service Provider - carrying out its obligations under,
and the activities contemplated by, this agreement; and
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(b) in the case of Telecom - updating its records in relation to customers
in respect of PIP Connections.
11.2 Service Provider acknowledges and agrees that Telecom must have access, by
the means referred to in clause 11.1(b) or by such other means as Telecom
may reasonably require, to all customer information relating to PIP
Connections including name and address and details of the customer's
payment and complaint records any other historical information relating to
the supply of services to the customer pursuant to this Agreement.
11.3 (a) Each party shall comply with the security and other requirements in
relation to the other party's computer system set out in the
Operations Manual.
(b) Upon termination of this Agreement, Telecom may at any time disconnect
any computer or other electronic information links between Service
Provider and Telecom and Telecom and Service Provider shall co-operate
fully with such disconnections to the extent reasonably necessary to
minimise disruption to customers in respect of PIP Connections.
11.4 For the avoidance of doubt and unless otherwise agreed by the parties:
(a) It is the responsibility of each party to acquire any and all computer
hardware and software necessary or desirable for the purpose of
fulfilling its obligations or exercising its rights under this
Agreement; and
(b) the costs of any leased line or other means of connecting the parties'
respective computer systems shall be bore by Service Provider.
11.5 If Service Provider falls to obtain customer agreement to the disclosure or
use of customer information as set out in clause 7.6(b), Service Provider
shall indemnify Telecom against every expense, loss or penalty howsoever
incurred by Telecom as a result of it disclosing or using that customer
information, whether such expense, loss or penalty arises out of any breach
of Applicable Law or any legal or other action undertaken against Telecom
as a result of that disclosure or use.
12 PROVISION OF THE BILLING ENQUIRY SERVICE
12.1 Service Provider shall establish and operate a 24 hour, seven days per
week, billing enquiry service for customers in respect of PIP Connections
answering customer billing queries or receiving customer billing complaints
or reports relating to billing of the Mobile Services (the "Billing Enquiry
Service").
12.2 Subject to this clause 12, the Billing Enquiry Service must be provided in
accordance with the Operations Manual and must facilitate the speedy and
professional resolution, or where appropriate referral, of billing,
charging and credit queries.
12.3 Service Provider must use its best endeavours to ensure that customer
billing enquiries made in relation to PIP Connections are made to the
Billing Enquiry Service rather than to Telecom's own customer enquiry
operators.
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12.4 Should Telecom receive a call relating to the billing of a PIP Connection,
Service Provider shall pay to Telecom $5 in respect of that call. Telecom
shall invoice Service Provider from time to time for all such calls.
Service Provider shall pay the amount so claimed on or before 14 days
after Telecom provides such invoice. The parties acknowledge that amount
of $5 is a genuine pre-estimate of the cost to Telecom of it processing
such a call. Should the receipt of such a call cost Telecom more than $5,
Telecom shall be entitled to claim from Service Provider the actual cost
incurred. This clause 12.4 does not apply during the three month period
immediately after the Launch Date.
12.5 Telecom and Service Provider acknowledge that there will be certain
categories of queries received by the Billing Enquiry Service which:
(a) will require that Telecom provide Service Provider with information
so that the can be adequately resolved; and
(b) may need to be formally referred to, and resolved by, Telecom.
12.6 Service Provider may request information from Telecom in relation to
queries received by the Billing Enquiry Service failing within the
categories of queries specified in the Operations Manual. Telecom must use
reasonable endeavours to comply with any such request in the manner set
out in the Operations Manual.
12.7 Service Provider must use its best endeavours to resolve all queries
received by the Billing Enquiry Service without requesting information
from Telecom in relation to that query under clause 12.6.
12.8 Service Provider must refer queries received by the Billing Enquiry
Service falling within the categories of queries specified in the
Operations Manual to Telecom for resolution by Telecom directly with the
complainant.
12.9 Telecom and Service Provider agree that it is intended that Telecom will
not have any direct contact with any customer that has made a query to the
Billing Enquiry Service unless that query is formally referred to Telecom
under clause 12.8.
12.10 When supplying the Billing Enquiry Service, Service Provider must meet
such benchmarks and performance standards as may be specified in the
Operations Manual (or otherwise agreed) from time to time. It is
anticipated that such benchmarks and performance standards all be based
upon the performance of Telecom's own customer enquiry service. Until such
time as they are specified in the Operations Manual (or otherwise agreed)
the Billing Enquiry Service standards the Service Provider must meet are:
(a) Inbound calls:
(i) At least 90% of calls to be answered within 10 seconds;
(ii) Less than 2% of calls to be abandoned;
(iii) At least 95% of customer enquiries to be resolved on the first
call; and
(iv) less than 5% of calls to be transferred to Telecom.
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(b) Customer complaints in relation to the Billing Service, Billing
Enquiry Service and Credit Management Service:
(i) All complaints to be acknowledged within 1 day;
(ii) Final resolution to occur within 3 days where possible.
(c) Customer Satisfaction to be rated Very Good or Excellent by at least
85% of customers in relation to:
(i) perception of ▇▇▇▇ accuracy;
(ii) ▇▇▇▇ presentation (MobileNet segment);
(iii) customer service quality with respect to billing and billing
enquiries; and
(iv) quality of the billing information provided to the customer.
12.11 Service Provider must provide a quarterly report to Telecom on its
performance of each of the standards set out in clause 12.10. Following an
initial performance review, a quarterly performance audit of each service
standard will be carried out by Telecom. Where unacceptable performance is
reported, Telecom may undertake more frequent audits as necessary to
establish that adequate remedial action has been undertaken to resolve the
under performance.
12.12 Following an initial performance review of documented procedures, a
quarterly performance audit of each documented procedure will be carried
out by Telecom. Where unacceptable performance is reported, Telecom may
undertake more frequent audits as necessary to establish that adequate
remedial action has been undertaken to resolve the under performance.
12.13 Service Provider shall maintain such records or documents, and produce
such reports, as Telecom may request in relation to the performance of the
Customer Enquiry Service. Service Provider shall, upon reasonable notice,
make its premises, and such records, documents or reports as Telecom may
reasonably request, available to Telecom or its agents or contractors for
the purpose of auditing the performance of the Customer Enquiry Service
and assessing whether Service Provider has complied with its obligations
under clause 12.10.
13 PROVISION OF FULL CUSTOMER SERVICE
13.1 Full Customer Service comprises all aspects of service to customers who
have PIP Connections other than the provision of the Mobile Services,
Value Added Services or the provision of services provided to those
customers by Service Provider as part of the Billing Service, Billing
Enquiry Service or the Credit Management Service. Full Customer Service
includes:
(a) the provision of a Customer Enquiry Service as set out in clause 14;
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(b) the giving of advice to customers on Value Added Services;
(c) the giving of advice to customers on and the providing of support to
customers of Mobile Services and other Telecom products and services;
and
(d) the promotion of new products to customers.
13.2 In order to be eligible to make an application under clause 13.4 to
provide Full Customer Service under this Agreement, Service Provider must
meet the following criteria ("Acceptance Criteria"):
(a) Service Provider must have compiled with all of its obligations under
this Agreement including all performance targets, benchmarks and
performance standards for the preceding six months (including
satisfactory performance as measured by the two most recent quarterly
reviews under clauses 12.11 and 12.12); and
(b) Service Provider must have achieved at least 20,000 PIP Connections.
13.3 Telecom may, at its absolute discretion, waive the requirements of clause
13.2, either wholly or in part, by notice in writing to Service Provider.
13.4 Where Service Provider reasonably considers that it meets the Acceptance
Criteria set out in clause 13.2 for the provision of the Full Customer
Service, Service Provider may apply in writing to Telecom ("Full Customer
Service Application") stating that it wishes to commence the provision of
the Full Customer Service.
13.5 Service Provider shall include in the Full Customer Service Application,
information setting out the manner in which it meets the Acceptance
Criteria. Service Provider agrees to provide to Telecom such further
information as Telecom may reasonably request for the purpose of assessing
the Full Customer Service Application.
13.6 The Service Provider may not commence providing the Full Customer Service
until it has received Telecom's written approval of the Service Provider's
Full Customer Service Application and the requirements of clause 2.3(b)
have been met.
13.7 A provider of Full Customer Service must provide all of the Full Customer
Service as set out in clause 13.1. The parties acknowledge that further
services may be provided by a Full Customer Service provider from time to
time, subject to agreement between the parties.
14. CUSTOMER ENQUIRY SERVICE
14.1 Service Provider shall establish and operate a 24 hour, seven days per
week, customer enquiry service for customers in respect of PIP Connections
answering customer queries or receiving customer complaints or reports
relating to the Mobile Services (the "Customer Enquiry Service").
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14.2 Subject to clause 14, the Customer Enquiry Service must be provided in
accordance with the Operations Manual and must facilitate the speedy and
professional resolution, or where appropriate referral, of matters
including;
(a) customer complaints;
(b) network operational queries;
(c) fault reports;
(d) promotional and other offers; and
(e) other matters as agreed between the parties from time to time.
14.3 Service Provider must use its best endeavours to ensure that customer
enquiries made in relation to PIP Connections are made to the Customer
Enquiry Service rather than to Telecom's own customer enquiry operators.
Should Telecom receive a call relating to the billing of a PIP Connection,
Service Provider shall pay to Telecom $5 in respect of that call Telecom
shall invoice Service Provider from time to time for ail such calls.
Service Provider shall pay the amount so claimed on or before 14 days
after Telecom provides such invoice. The parties acknowledge that amount
of $5 is a genuine pre-estimate of the cost to Telecom of it processing
such a call. Should the receipt of such a call cost Telecom more than $5,
Telecom shall be entitled to claim from Service Provider the actual cost
incurred.
14.4 Telecom and Service Provider acknowledge that there will be certain
categories of queries received by the Customer Enquiry Service which:
(a) will require that Telecom provide Service Provider with information
so that they can be adequately resolved; and
(b) may need to be formally referred to, and resolved by, Telecom.
14.5 Service Provider may request information from Telecom in relation to
queries received by the Customer Enquiry Service failing within die
categories of queries specified in the Operations Manual. Telecom must use
reasonable endeavours to comply with any such request in the manner set
out in the Operations Manual.
14.6 Service Provider must use its best endeavours to resolve all queries
received by the Customer Enquiry Service without requesting information
from Telecom in relation to that query under clause 14.5.
14.7 Service Provider must refer queries received by the Customer Enquiry
Service falling within the categories of queries specified in the
Operations Manual to Telecom for resolution by Telecom directly with the
complainant.
14.8 Telecom and Service Provider agree that it is intended that Telecom will
not have any direct contact with any customer that has made a query to the
Customer Enquiry Service unless that query is formally referred to Telecom
under clause 14.7.
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14.9 When supplying the Customer Enquiry Service, Service Provider must meet
such benchmarks and performance standards as may be specified in the
Operations Manual (or otherwise agreed) from time to time. It is
anticipated that such benchmarks and performance standards shall be based
upon the performance of Telecom's own customer enquiry service. Until such
time as they are specified in the Operations Manual (or otherwise agreed)
the Customer Enquiry Service standards the Service Provider must meet are:
(a) Inbound calls:
(i) At least 90% of calls to be answered within 10 seconds;
(ii) Less than 2% of calls to be abandoned;
(iii) At least 95% of customer enquiries to be resolved on the first
call; and
(iv) less than 5% of calls to be transferred to Telecom.
(b) Customer complaints in relation to the Full Customer Service:
(i) All complaints to be acknowledged within 1 day;
(ii) Final resolution to occur within 3 days where possible.
(c) Customer Satisfaction to be rated Very Good or Excellent by at least
85% of customers in relation to:
(i) perception of non billing information accuracy;
(ii) non ▇▇▇▇ information presentation (where information is
presented in visual form);
(iii) non-billing customer service quality; and
(iv) quality of non billing information provided to the customer.
14.10 Service Provider must provide a quarterly report to Telecom on its
performance of each of the standards set out in clause 14.9. Following an
initial performance review, a quarterly performance audit of each service
standard will be carried out by Telecom. Where unacceptable performance is
reported, Telecom may undertake more frequent audits as necessary to
establish that adequate remedial action has been undertaken to resolve the
under performance.
14.11 Following an initial performance review of documented procedure, a
quarterly performance audit of each documented procedure will be carried
out by Telecom. Where unacceptable performance is reported, Telecom may
undertake more frequent audits as necessary to establish that adequate
remedial action has been undertaken to resolve the under performance.
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14.12 Service Provider shall maintain such records or documents, and produce
such reports, as Telecom may request in relation to the performance of the
Customer Enquiry Service. Service Provider shall, upon reasonable notice,
make its premises, and such records, documents or reports as Telecom may
reasonably request, available to Telecom or its agents or contractors for
the purpose of auditing the performance of the Customer Enquiry Service
and assessing whether Service Provider has compiled with its obligations
under clause 14.9.
15 EQUIPMENT
15.1 Subject to clause 15.2, Telecom licenses Service Provider to use the
Equipment and any and all operating or other software supplied to Service
Provider by Telecom for use with the Equipment.
15.2 Service Provider shall only use Equipment for the purposes of this
Agreement in accordance with such specifications or requirements issued by
Telecom from time to time.
15.3 Service Provider:
(a) shall have no ownership, property or rights in the Equipment and
shall hold the Equipment as a mere bailee at will for Telecom;
(b) must not remove the Equipment from its premises without Telecom's
consent; or
(c) must not purport to sell, encumber or grant any right to or in the
Equipment.
15.4 Telecom or any of its servants, agents or representatives may, upon giving
reasonable notice, recover possession of the Equipment and Service
Provider shall assist and indemnify Telecom in relation to such recovery.
15.5 Service Provider shall:
(a) ensure that Equipment is stored clear of any interferences or
contamination (including but not limited to fire, storm, flood,
explosion, dust, water and theft) which may damage it;
(b) at times insure the Equipment in the name of Telecom for the full
insurable value of that Equipment with a reputable insurer and shall
keep Telecom indemnified in respect of all loss and damage to that
Equipment. Service Provider shall, upon request, promptly furnish to
Telecom evidence of such insurance;
(c) comply fully with any reasonable directions and recommendations that
Telecom may provide from time to time in respect the Equipment;
(d) return that Equipment, and all reproductions of any operating or
other software supplied to Service Provider by Telecom for use with
that Equipment (in any material form), to Telecom immediately upon
request (whether or not that request is made during the term of this
Agreement) and, in any event within 7 days of the termination of this
Agreement.
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16 TERM AND TERMINATION
16.1 Subject to clauses 2.3, 6.1, 6.3, 7.2, 8.1, 9.6. 9.7(b), 16.2, 16.3 and
29.3, this Agreement comes into force on the Commencement Date and remains
in force:
(a) for the period specified in Item 2 of Schedule 1 (the "Initial
Period"); and
(b) upon expiry of the Initial Period, for such additional periods as may
be agreed between the parties.
16.2 Telecom may terminate this Agreement at any time by notice in writing to
Service Provider if:
(a) Service Provider takes or threatens to take, or has taken or
instituted against it, any action or proceeding whether voluntary or
compulsorily which has an object or may result in the winding up of
Service Provider (other than a voluntary winding up for the purpose of
solvent amalgamation or reconstruction) or is placed under
administration or in receivership or a Controller (as defined in the
Corporations Law) is appointed over the whole or any part of its
undertaking;
(b) Service Provider enters or proposes to enter into any scheme of
arrangement or any composition for the benefit of its creditors;
(c) Service Provider stops payment or admits in writing its inability to
pay its Debts as they fall due, or is deemed to be unable to pay its
Debts pursuant to section 460 of the Corporations Law;
(d) as a result of the operation of section 459(l) of the Corporations
Law, Service Provider is taken to have failed to comply with a
statutory demand;
(e) any of the events specified in clause 16.2(a) to (d) above inclusive
occurs in relation to a corporation which is a guarantor of or surety
for the obligations of Service Provider under this Agreement;
(f) any director of Service Provider:
(i) becomes bankrupt, presents a Debtor's petition within the meaning
of the Bankruptcy Act, or at a meeting of any of his creditors he
consents to present a Debtor's petition under, or to sign an
authority under section 118 of the Bankruptcy Act or commits any
of the acts of bankruptcy specified in sections 40(i)(h) to (n)
of the Bankruptcy Act; or
(ii) executes a deed of assignment or a deed of arrangement under the
Bankruptcy Act;
(g) Service Provider defaults and such default continues for a period of
fourteen (14) days after written notice has been given to it by
Telecom in the payment of all or any moneys which may now or in the
future become owing by Service Provider on any account whatsoever by
Service Provider to Telecom;
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(h) for any reason within Service Provider's control Service Provider
fails to actively operate the Business for a period of more than 10
consecutive Business Days without the prior written permission of
Telecom;
(i) Service Provider in a Quarter submits to Telecom any report or
statement:
(a) which is to be used by Telecom as a basis for determining the
remuneration due to Service Provider and that report or statement
overstates, or contains an error which results in an over
calculation of, the remuneration due to Service Provider by more
than 5% of the true and correct amount due; or
(b) which overstates the true and correct number of PIP Connections
by more than 5 percent;
provided that Telecom has first offered Service Provider the
opportunity to explain that overstatement or error and Service
Provider has been unable to establish that the overstatement was not
made deliberately or recklessly or as a result of incorrect
information supplied to it by Telecom;
(j) Service Provider breaches any of the terms of any of its loan,
security or like agreements or any lease or agreement relating to this
Agreement or fails to make on the due date any payment due in respect
of any loan or Debt taken out or owed by Service Provider which loan
or Debt is or may in the future be guaranteed or otherwise secured by
Telecom or any of its related corporations;
(k) a demand is made on Telecom for payment of money under any instrument,
guarantee or indemnity given by Telecom to secure advances or other
financial accommodation made to Service Provider;
(l) Service Provider attempts or purports to sell, assign or transfer this
Agreement, the Beneficial Ownership of the Business, or any licenses,
concession agreements or permits which are required by or related to
the Business without Telecom's prior written consent (which must not
be unreasonably withheld);
(m) there is a change in the Beneficial Ownership of Service Provider
without Telecom's prior written consent (which must not be
unreasonably withheld); or
(n) a Full Bench of the Australian Industrial Relations Commission finds
that this Agreement adversely affected Telecom's staff and was the
substantial cause of industrial disputation.
16.3 If:
(a) a party is in breach of any material obligation under this Agreement;
and
(b) the other party has notified that party of that breach; and
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(c) if that breach is capable of remedy;
(i) the Steering Committee has met to discuss remedying that breach
and;
(ii) the party in breach has not remedied that breach within 21 days
of that meeting (or such other period as may be agreed);
then the other party may by notice in writing immediately terminate this
Agreement.
16.4 Without prejudice to its rights under clauses 16.2 and 16.3, Telecom may,
notwithstanding any other clause, suspend the provision of any goods and
services to Service Provider pursuant to this Agreement during any period
in which amounts owing to it under this Agreement are unpaid.
16.5 Upon termination of this Agreement, Service Provider must at its own
expense:
(a) pay to Telecom all moneys owed by it to Telecom within 7 days of
termination;
(b) immediately cease to identify itself by means of the Generic Title;
(c) immediately cease, and ensure that each Affiliate ceases, to hold
itself out to the public in any manner as being approved by or
affiliated with Telecom to promote the Mobile Services;
(d) immediately cease, and ensure that each Affiliate ceases, all use of
the Trade Marks; and
(e) unless agreed otherwise in writing with Telecom, remove, destroy or
obliterate all signage, materials or documentation on Service
Provider's or a Affiliate's premises which refers to Telecom or the
Mobile Services within 7 days thereafter, by statutory declaration,
certify that this has been done.
16.5A Service Provider acknowledges and agrees that Telecom may in the event
that this agreement has been, or is to be, terminated in accordance with
this clause deliver to each customer in respect of a PIP Connection a
notice advising the customer that this Agreement has been or is to be (as
the case may be) terminated and that Service Provider will no longer be
supplying the Billing Service, the Billing Enquiry Service, the Credit
Management Service and, if applicable, the Full Customer Service.
16.6 Telecom and its servants or agents may, upon giving reasonable notice,
enter on Service Provider's or an Affiliate's premises where any Trade
Marks, similar marks, signs or sign writing may be and remove or
obliterate the same and carry out any works reasonably necessary for such
removal or obliteration at Service Provider's expense, should Service
Provider fail to comply with its obligations under clause 16.5.
16.7 Any expiration or termination of this Agreement does not affect the rights
and obligations of the parties under clauses 15, 16.5, 16.5A, 16.6, 16.7,
16.8, 17.12, 18.3 and 30, which survive termination.
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16.8 Service Provider acknowledges and agrees that upon termination or
expiration of this Agreement all Service Provider's right to future
remuneration under this Agreement shall immediately cease.
16.9 Telecom acknowledges that wrongful termination of this Agreement by Telecom
would amount to a breach of this Agreement in relation to which Service
Provider would be entitled to recover damages.
17 INTELLECTUAL PROPERTY RIGHTS, TRADE MARKS AND TELECOM CONFIDENTIAL
INFORMATION
17.1 A party shall not use the other party's Intellectual Property Rights except
as expressly permitted in this Agreement.
17.2 The parties agree that all Intellectual Property Rights in and to any
modifications or changes to any item or thing in which Intellectual
Property Right subscripts (including computer software, computer hardware
or documentation) are the property of the party that owns the Intellectual
Property Rights in that item or thing.
17.3 Service Provider acknowledges that the Trade Marks are the exclusive
property of Telecom and that Service Provider has no rights in or to the
Trade Marks other than under this Agreement.
17.4 Service Provider is granted the non-exclusive right to use the Displayed
Trade Marks in relation to the Business in a manner set out in the
Operations Manual or as specifically approved by Telecom in writing (which
approval may be revoked or varied by Telecom). Where necessary or
desirable Telecom and Service Provider may enter into a registered user
agreement in respect of a Displayed Trade ▇▇▇▇. Affiliates may use the
Displayed Trade Marks in the manner set out in the Operations Manual or as
determined by Telecom from time to time.
17.5 Service Provider shall not during the term of this Agreement:
(a) do anything which may impair Telecom's right, title and interest in
and to the Trade Marks or which might prejudice their distinctiveness
or validity or the goodwill of Telecom;
(b) except to the extent permitted by clauses 17.4 or with the written
consent of Telecom, use any of the Trade Marks.
17.6 Service Provider undertakes to keep secret and to protect and preserve the
confidential nature and secrecy of all Telecom Confidential Information.
To this end, Service Provider shall not, without Telecom's prior written
consent:
(a) use, disclose or in any way communicate to any other person all or any
Telecom Confidential Information except as permitted by this Agreement
or as required by law;
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(b) permit unauthorised persons to have access to places where Telecom
Confidential Information is displayed, reproduced or stored; or
(c) make or assist any person to make any unauthorised use or disclosure
of Telecom Confidential Information, and shall take all reasonable
steps (including, obtaining confidentiality undertakings from
employees, officers, agents, contractors and subcontractors who have
or may have access to the Telecom Confidential Information) to ensure
that the Telecom Confidential Information is not used or disclosed by
Service Provider's employees, officers, agents, contractors or
subcontractors.
17.7 Telecom undertakes to keep secret and to protect and preserve the
confidential nature and secrecy of all Service Provider Confidential
Information. To this end, Telecom shall not, without Service Provider's
prior written consent:
(a) use, disclose or in any way communicate to any other person all or
any Service Provider Confidential Information except as permitted by
this Agreement or as required by law;
(b) permit unauthorised persons to have access to places where Service
Provider Confidential Information is displayed, reproduced or stored;
or
(c) make or assist any person to make any unauthorised use or disclosure
of Service Provider Confidential Information, and shall take all
reasonable steps (including obtaining confidentiality undertakings
from employees, officers, agents, contractors and sub-contractors who
have or may have access to the Service Provider Confidential
Information) to ensure that the Service Provider Confidential
Information is not used or disclosed by Telecom's employees,
officers, agents, contractors or sub-contractors.
17.8 Subject to clause 17.9, Service Provider may disclose Telecom Confidential
Information, and Telecom may disclose Service Provider Confidential
Information, to their respective employees, officers, agents, contractors
and sub-contractors in the course of their employment on a need to know
basis or to their respective advisers in relation to their rights under
this Agreement.
17.9 Each Party shall ensure that its employees, officers, contractors, sub-
contractors, agents and afl other persons under its control or direction
will be under and will comply with obligations similar to the obligations
imposed on it under this clause.
17.10 If a party, its employees, officers, agents, contractors or sub-
contractors breach the confidentiality obligations contained in this
Agreement it shall immediately notify the other party in writing of this
and indemnify the other party for all loss and damage caused by such
breach.
17.11 Each party acknowledges that a breach of this clause may cause the other
party irreparable damage for which monetary damages would not be an
adequate remedy. Accordingly, in addition to other remedies that may be
available, a party may seek and obtain injunctive relief against such a
breach of threatened breach.
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17.12 The obligations under this clause 17 survive termination of this
Agreement.
17.13 Notwithstanding any other term of this Agreement, Telecom shall as
required by its Articles of Association, be entitled to disclose to its
shareholder, the Commonwealth of Australia, or the Commonwealth's nominee
pursuant to a shareholder resolution requiring such disclosure, any
information contained in any books, documents or other papers of Telecom
except for confidential Information comprising details of products,
technical processes and know how including computer programs directly
related to those products, technical processes or know how. For the
purposes of this provision the words "books, documents or other papers"
include:
(a) any book, map, plan, graph or drawing;
(b) any photograph;
(c) any label, any marking or other writing which identifies or describes
anything of which it forms a part, or to which it is attached by any
means whatsoever;
(d) any disk, tape, soundtrack or other device in which sounds or other
data (not being visual images) are embodied so as to be capable (with
or without the aid of some other equipment) of being reproduced
therefrom;
(e) any film (including microfilm), negative, tape or other device in
which one or more visual images are embodied so as to be capable
(with or without the aid of some other equipment) of being reproduced
therefrom; and
(f) anything whatsoever on which is marked any words, figures, letters
or symbols which are capable of carrying a definite meaning to a
person conversant with them.
18 LIMITATION OF LIABILITY AND INDEMNITY
18.1 Certain laws imply terms, conditions and warranties into contracts for the
supply of goods or services and prohibit the exclusion, restriction or
modification of those terms and conditions and warranties ("prescribed
terms"). Some prescribed terms permit a supplier to limit its liability
for a breach thereof. Except as provided by prescribed terms, the
liability of Telecom in respect of a breach of a prescribed term relating
to the supply of any goods or services supplied by it to Service Provider
in connection with this Agreement or the Mobile Services is limited, at
the option of Telecom, to the replacement or repair of the goods, resupply
of services or payment of the costs of replacing or repairing the goods or
resupplying the services.
18.2 Except as provided by prescribed terms (if any):
(a) Telecom makes no warranties in relation to the provision of any goods
or services by it to Service Provider or the Mobile Services,
including warranties as to fitness for purpose or otherwise; and
(b) Service Provider will not under any circumstances have any cause of
action against or right to claim or recover from Telecom (and its
employees, officers,
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agents, contractors and sub-contractors) whether in tort, breach of
contract or otherwise, for or in respect of any loss or damage caused
directly or indirectly by any breach of warranty (if any) in respect
of any goods or services supplied by it to Service Provider in
connection with this Agreement or the Mobile Services.
18.3 It is not necessary for a party to incur expense or make payment before
enforcing a right of indemnity conferred by this Agreement.
19 ENTIRE AGREEMENT AND AMENDMENT
19.1 This Agreement constitutes the entire agreement of the parties about its
subject matter and any previous agreements, understandings and negotiations
on that subject matter cease to have any effect. Service Provider
acknowledges that in entering into this Agreement it has not relied on any
representations or warranties about its subject matter except as provided
in this Agreement.
19.2 No amendment of any part of this Agreement will be valid or have effect
unless in writing executed by all parties.
20 SALE, ASSIGNMENT AND TRANSFER
20.1 Provided Telecom provides Service Provider with 60 days written notice,
this Agreement shall be fully assignable by Telecom and shall enure to the
benefit of any assignee, transferee or other legal successor of Telecom.
Service Provider agrees to accept performance by any assignee, transferee
or successor without the need for any agreement of novation.
20.2 Service Provider may not transfer or assign any of its rights under this
Agreement without Telecom's prior written consent.
21 WAIVER AND VARIATION
A provision of or a right created under this Agreement may not be:
(a) waived except in writing signed by the party granting the waiver; or
(b) varied except in writing signed by the parties.
Waiver of a breach is without prejudice to the right of a party to
terminate for later breach.
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22 NOTICES
22.1 A notice, approval, consent or other communication in connection with this
Agreement:
(a) must be in writing;
(b) must be marked, in the case of Telecom, for the attention of:
National Manager - Service Providers
and, in the case of Service Provider for the attention of:
Manager, Mobile Services;
(c) must be left at the address of the addressee, or sent by prepaid
ordinary post (airmail if posted to or from a place outside Australia)
to the address of the addressee or sent by facsimile to the facsimile
number of the addressee which is specified in this clause or if the
addressee notifies another address or facsimile number then to that
address or facsimile number. The address and facsimile number of each
party is:
In the case of Telecom:
Mobile Communication Services
Telstra Corporation Limited
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
In the case of Service Provider:
Axicorp Pty Ltd
▇▇▇▇▇ ▇, ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
22.2 A notice, approval, consent or other communication takes effect from the
time it is received unless a later time is specified in it.
22.3 A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if posted to or
from a place outside Australia) day after posting; and
(b) in the case of facsimile, on production of a transmission report by
the machine from which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
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23 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
23.1 This Agreement and the transactions contemplated by this Agreement are
governed by the law in force in Victoria.
23.2 Without preventing any other mode of service, any document in an action
(including, but not limited to, any writ of summons or other originating
process or any third or other party notice) may be served on any party by
being delivered to or left for that party at its address for service of
notices under clause 22.
24 SEVERABILITY
If the whole or any part of a provision of this Agreement is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this Agreement has full force and effect
and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has no effect if the severance
alters the basic nature of this Agreement or is contrary to public policy.
25 EXERCISE OF RIGHTS
A party may exercise a right, power or remedy at its discretion, and
separately or concurrently with another right, power or remedy. A single
or partial exercise of a right, power or remedy by a party does not prevent
a further exercise of that or of any other right, power or remedy. Failure
by a party to exercise or delay in exercising a right, power or remedy does
not prevent its exercise.
26 FURTHER ASSURANCES
26.1 Each party agrees, at its own expense, on the request of another party, to
do everything reasonably necessary to give effect to this Agreement and the
transactions contemplated by it, including, but not limited to, the
execution of documents.
26.2 Without limiting the generality of clause 26.1:
(a) Service Provider agrees at its own expense, to do everything necessary
in order to enable Telecom to comply with any obligations that it may
have under any legislation, statute, law, ordinance, enactment, by-law
or governmental or quasi-governmental direction (including but not
limited to the Act and any relevant class license issued by the
Australian Telecommunications Authority from time to time under that
Act and the Radiocommunications ▇▇▇ ▇▇▇▇ (Cth)), to the extent that
the same relates to the performance of any rights or obligations under
this Agreement whatsoever; and
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(b) Service Provider shall on request execute and procure the execution of
such additional documents in order to more adequately secure the
obligations of Service Provider under this Agreement, as Telecom
requires from time to time.
27 FORCE MAJEURE
27.1 An obligation of a party under this Agreement shall be suspended during the
time and to the extent that the party is prevented from or delayed in
complying with that obligation by an event of Force Majeure.
27.2 A party affected by an event of Force Majeure must give to the other party
particulars of the event of Force Majeure and take reasonable steps to
remove or mitigate the relevant event of Force Majeure except that the
party will not be obliged to settle a strike, lockout, boycott or other
industrial dispute.
28 REMEDIES CUMULATIVE
The right, powers, obligations and remedies provided in this Agreement are
cumulative with and not exclusive of the rights, powers or remedies
provided by law or in equity independently of this Agreement.
29 LEGISLATION
29.1 Any present or future legislation which operates on a right, power or
remedy of a person in connection with this Agreement is excluded except to
the extent that its exclusion is prohibited or rendered ineffective by law.
29.2 This Agreement shall be subject to and read in accordance with the
Australian and Overseas Telecommunications Corporation Act 1991 and the
Act.
29.3 If:
(a) the Australian Telecommunications Authority determines; or
(b) a court of law determines;
that this Agreement or any clause of this Agreement contravenes any
provision of the Act or the Trade Practices ▇▇▇ ▇▇▇▇ (Cth), this Agreement
may forthwith be terminated upon notice by Telecom to Service Provider
provided however that Telecom and Service Provider by agreement may amend
any clause of this Agreement, so far as it practicable, to overcome the
particular problem.
29.4 Service Provider acknowledges and agrees that if this Agreement is
terminated pursuant to clause 29.3, Service Provider shall ensure that it
shall not, directly or indirectly, make a claim against Telecom for any
loss, damage or cost whatsoever suffered resulting from termination of this
Agreement pursuant to this clause.
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30 SET OFF
Telecom shall have the unqualified right to set off any and all moneys due
to it by Service Provider, whether or not such moneys are due to Telecom
under the terms of this Agreement or otherwise, against any monies due to
Service Provider by Telecom.
31 APPROVALS AND CONSENTS
31.1 Telecom may give conditionally or unconditionally or withhold its approval
or consent in its absolute discretion unless this Agreement expressly
provides otherwise.
31.2 Service Provider acknowledges and agrees that any and all approvals or
consents to be given by Telecom in relation to this Agreement must be given
by the appropriate personnel of Telecom's Mobile Communication Services
business unit, as set out in the Operations Manual.
32 DUTIES, TAXES, Etc.
Service Provider shall pay all duties, taxes, levies, charges or imposts on
or in connection with this Agreement, any document contemplated under this
Agreement or anything provided under this Agreement (including, but not
limited to, stamp duty but excluding any income tax imposed on Telecom).
33 DISPUTE RESOLUTION
33.1 Subject to clauses 16.3 and 33.2, any dispute arising in connection with
the performance of this Agreement must be resolved in the following manner:
(a) the dispute must be referred to the Steering Committee;
(b) the parties (through their representatives on the Steering Committee)
must use their best endeavours to resolve that dispute by negotiation;
and;
(c) if the dispute cannot be resolved by negotiations:
(i) the parties may agree to appoint or retain a third party
(including an arbitrator, mediator or expert) in respect of that
dispute, or
(ii) in the absence of agreement, either party may take such legal
steps as it considers appropriate.
33.2 This clause 33 does not limit in any way a party's right to seek any form
of equitable relief including, without limitation, injunctive relief.
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34 PUBLICITY
A party may not make press or other public announcements or releases
relating to this Agreement and the transactions are subject to this
Agreement without the approval of the other party to the form and manner of
the announcement or release unless that announcement or release is required
to be made by law or by a stock exchange. Service Provider acknowledges
and agrees that the disclosure by Telecom of information to the Federal
Government of Australia does not constitute a breach of this clause 34.
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EXECUTED as an Agreement.
SIGNED by ▇▇▇▇▇ ▇. ▇▇▇▇, )
as authorised representative for )
TELSTRA CORPORATION )
LIMITED (ACN 051 775 556) in the )
presence of: )
/s/ ▇. ▇. Broones
.................................
Signature of witness
/s/ ▇. ▇. Broones
.................................
Name of witness (block letters) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
...........................
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ By executing this agreeement the
................................. signatory warrants that the
Address of witness signatory is duly authorized to
execute this agreement on behalf
SOLICITOR of TELSTRA CORPORATION LIMITED
................................. (ACN 051 775 556)
Occupation of witness
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇ as )
authorised representative for AXICORP )
PTY LTD (ACN ▇▇▇ ▇▇▇ ▇▇▇) in the )
presence of )
/s/ ▇. ▇. Broones
.................................
Signature of witness
/s/ ▇. ▇. Broones
.................................
Name of witness (block letters)
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
................................. .............................
Address of witness By executing this agreeement the
signatory warrants that the
SOLICITOR signatory is duly authorised to
................................. execute this agreement on behalf
Occupation of witness of AXICORP PTY LTD (ACN 061 754
943)
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SCHEDULE 1
Service Provider Details
ITEM 1 (Clause 1.1) /s/ ▇▇▇▇▇ ▇▇▇▇
Commencement Date: 3 May 1995.
ITEM 2 (Clause 16.1)
Initial Period: 5 years.
ITEM 3 (Clause 1.1)
Territory: Australia.
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SCHEDULE 2
Service Provider Remuneration - Clauses 8, 9.2
1. Entitlement to amounts
1.1 Notwithstanding any other provision of this Agreement, the remuneration
payable to Service Provider prior to 1 January 1996 in respect of AMPS
Connections is the amount payable under paragraphs 1.3(a)(ii), 1.3(a)(iii),
1.3(b)(i), 1.6 and 1.7 of this schedule. No other remuneration is payable
to Service Provider in respect of AMPS Connections until 1 January 1996.
1.2 Until 1 January 1996 all references to remuneration contained in any
paragraphs other than paragraphs 1.3(a)(ii) and 1.3(a)(iii) and 1.3(b)(i)
of this Schedule refer to remuneration in respect of GSM Connections only
and all calculations required for the determination of any remuneration
shall disregard entirely any Connection which is an AMPS Connection.
1.3 Subject to paragraphs 1.1 and 1.2 of this schedule, during the term of this
Agreement, the following amounts are the fees and commission referred to in
clause 8.1:
(a) for each New Connection, where the customer concerned has continued to
acquire the Mobile Service for a period of less than 5 years from the
date that Connection was made:
(i) where the Connection is a GSM Connection - 8% of the ▇▇▇▇▇ ▇▇▇▇
for that Connection for the previous calendar month; and
(ii) where the Connection is an AMPS Connection - 6% of the ▇▇▇▇▇
▇▇▇▇ for that Connection for the previous calendar month;
(iii) for each New Connection made during the previous calendar month
- the amount spent by Service Provider on Co-operative
Advertising in the month prior to the date of Connection (as
determined by paragraph 1.4 of this schedule), divided by the
number of such Connections, up to a maximum of $20 for each such
Connection, payable once only.
(b) for each Serviced Connection:
(i) for supplying the Billing Services and the Billing Enquiry
Service - 5% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for the
previous calendar month;
(ii) for supplying the Credit Management Service - 1.5% of the ▇▇▇▇▇
▇▇▇▇ for that Connection for the previous calendar month;
(iii) whilst Service Provider is achieving a customer satisfaction
rating acceptable to Telecom in relation to the Billing
Service, the Billing
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Enquiry Service and the Credit Management Service - 0.5% of the
▇▇▇▇▇ ▇▇▇▇ for that Connection for the previous calendar month;
(iv) whilst Service Provider has more than 10,000 active PIP
Connections - 0.5% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for
the previous calendar month;
(v) whilst Service Provider has more than 20,000 active PIP
Connections -0.5% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for the
previous calendar month;
(vi) for the sale of Telecom Value Added Services - VAS Fee% (as
calculated in paragraph 1.3(c) of this schedule) of the ▇▇▇▇▇
▇▇▇▇ for that Connection for the previous calendar month;
(vii) whilst Service Provider is providing the Full Customer Service
- 3.0% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for the previous
calendar month;
(viii) whilst Service Provider is providing the Full Customer Service
and Service Provider has more than 30,000 active PIP
Connections- 0.5% of the ▇▇▇▇▇ ▇▇▇▇ for that Connections for
the previous calendar month;
(ix) whilst Service Provider is providing the Full Customer Service
and Service Provider has more than 40,000 active PIP
Connections- 0.5% of the ▇▇▇▇▇ ▇▇▇▇ for that Connections for
the previous calendar month;
(x) whilst Service Provider is providing the Full Customer Service
and Service Provider has more than 50,000 active PIP
Connections - 0.5% of the ▇▇▇▇▇ ▇▇▇▇ for that Connections for
the previous calendar month;
(xi) whilst Service Provider is providing the Full Customer Service
and Service Provider has more than 75,000 active PIP
Connections - 1.0% of the ▇▇▇▇▇ ▇▇▇▇ for that Connections for
the previous calendar month;
(xii) whilst Service Provider is providing the Full Customer Service
and Service Provider has more than 100,000 active PIP
Connections - 1.0% of the ▇▇▇▇▇ ▇▇▇▇ for that Connections for
the previous calendar month;
(xiii) whilst Service Provider is providing the Full Customer Service
and Service Provider is achieving a customer satisfaction
rating acceptable to Telecom in relation to the Customer
Enquiry Service provided by Service Provider - 0.5% of the
▇▇▇▇▇ ▇▇▇▇ for that Connection for the previous calendar month;
(xiv) whilst Service Provider is providing the Full Customer Service
and is achieving 20% of PIP Connections which are Churns or
customers who have never previously been connected to a Mobile
Service - 1.0% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for the
previous calendar month;
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(xv) whilst Service Provider is providing the Full Customer Service
and is achieving 40% of PIP Connections which are Churns or
customers who have never previously been connected to a Mobile
Service - 1.0% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for the
previous calendar month; and
(xvi) whilst Service Provider is providing the Full Customer Service
and is achieving 60% of PIP Connections which are Churns or
customers who have never previously been connected to a Mobile
Service - 1.0% of the ▇▇▇▇▇ ▇▇▇▇ for that Connection for the
previous calendar month.
Each fee and commission calculated in accordance with this paragraph
1.3(b) shall be aggregated in order to determine the total fee and
commission due to Service Provider in respect of the relevant Serviced
Connection.
(c) The VAS FEE % shall be calculated in accordance with the following
formula (this formula renders a number which is then expressed as a
percentage, for example: if the result of this formula is 0.01 the VAS
Fee % is 1%):
VAS FEE % = ((MSB x 4) + (MOB x 3) + (SNS x 1) + (TEC x 2))/206
Where:
MSB equals the percentage of PIP Connections using the Message Bank
Service expressed as a number;
MOB equals the percentage of PIP Connections using the MemoBank
Service expressed as a number;
SNS equals the percentage of PIP Connections using the Safe'n Sure
Insurance Service expressed as a number;
TEC equals the percentage of PIP Connections using the MobileNet
EasyCall Service expressed as a number;
Subject to a maximum VAS Fee % of 1.0%.
1.4 For the purposes of paragraph 1.3(a) of this schedule, the date a
Connection was made shall be deemed to be the first day of the month
immediately after the month in which that Connection was made.
1.5 Telecom agrees that for the first three months after the relevant launch
date (being the Launch Date or the Full Customer Service Launch Date)
Service Provider shall, for the purposes of this schedule, be deemed to
have met the customer satisfaction requirements of paragraphs 1.3(b)(iii)
and (xiii) respectively.
1.6 In addition to the fees and commissions specified in paragraph 1.3 Telecom
shall pay to Service Provider the following fees and commission in respect
of PIP Connections that are AMPS Connections:
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(a) for the period from the Commencement Date to the earlier to occur of
the Launch Date and 31 December 1995 - 7.5% of the ▇▇▇▇▇ ▇▇▇▇ for that
Connection in respect of each calendar month ending during that
period, and
(b) for the period on and from the end of the period referred to in
paragraph 1.6(a) to 31 December 1995 - 2.5% of the ▇▇▇▇▇ ▇▇▇▇ for that
Connection in respect of each calendar month ending during that
period.
1.7 In addition to the fees and commissions specified in paragraph 1.3 Telecom
shall make a payment to Service Provider equal to 7.5% of the aggregate of
the Gross Bills during the period from 1 January 1995 to the Commencement
Date of all PIP Connections that are AMPS Connections. Service Provider
acknowledges that it will be necessary for Telecom to carry out a
reconciliation to calculate the amount of this payment. Telecom shall make
this payment as soon as reasonably practicable after the Commencement Date.
1.8 Connections that were arranged or procured by Service Provider before the
Commencement Date shall be deemed to constitute PIP Connections for the
purposes of paragraphs 1.6 and 1.7.
2. Exceptions to Commission Entitlement
2.1 Notwithstanding any other clause or paragraph, the amounts referred to in
paragraph 1.3 of this schedule must not be deducted in accordance with
clause 9.4 if Service Provider does not:
(a) in Telecom's reasonable opinion, maintain and keep sufficient
accounts, records, receipts, invoices and documentation ("proofs") in
order to justify and substantiate a claim upon Telecom for commissions
to which Service Provider claims to be entitled under this Agreement;
or
(b) permit persons authorised by Telecom to inspect and take copies at any
reasonable time of all proofs in the power, possession or control of
Service Provider.
2.2 Notwithstanding any other clause or paragraph, and without limiting the
operation of clause 9.11(c), where a PIP Connection is billed an amount
less than Telecom's applicable fee or charge in respect of the relevant
Mobile Service as described in clause 9.11(c), Telecom may reduce Service
Provider's remuneration in respect of that PIP Connection by an amount
reasonably determined by Telecom to be equal to the difference between the
billed amount and Telecom's applicable fees or charges.
2.3 Telecom reserves the right to charge customers of Mobile Services less than
the amount calculated in accordance with any applicable PMTS tariff filed
with AUSTEL (as amended from time to time).
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SCHEDULE 3
Beneficial Owners - Clauses 1.1 and 16.2(m)
TABLE 5.1
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Each Shareholder's
Name of each Address of each Interest in Service
Shareholder Shareholder Provider
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Aspect Computing PLC
ACN 005 083 670 --- 400,000 Ordinary Shares
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Alta Telecommunications PLC
ACN 087 270 375 --- 12,000 Ordinary Shares
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CCT Australia PLC
ACN 006 955 111 As Trustee of ▇▇▇▇▇ Family Trust 40,000 Ordinary Shares
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CT Corporation PLC
ACN 062 380 803 --- 40,000 Ordinary Shares
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Willoware PLC
ACN 065 497 450 As Trustee of Kowan Family Trust 12,000 Ordinary Shares
--------------------------------------------------------------------------------------
INCO PLC
ACN 066 926 403 As Trustee of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Family Trust 40,000 Ordinary Shares
--------------------------------------------------------------------------------------
LPS Investments PLC
ACN ▇▇▇ ▇▇▇ ▇▇▇ As Trustee of ▇▇▇▇▇ ▇▇▇▇▇▇ Family Trust 40,000 Ordinary Shares
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SMNR Consulting PLC
ACN 062 871 381 --- 12,000 Ordinary Shares
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Foovs Aust LTD --- 354,000 Ordinary Shares
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SCHEDULE 4
Displayed Marks - Clause 1.1
These are the only Trade Marks of Telecom which Service Provider is entitled to
use and they may only be used as permitted by this Agreement:
1 Official Telecom Logo
2 Telecom MobileNet
3 MobileNet Access Card
4 MobileNet Digital
MobileNet
This Schedule may be varied by Telecom from time to time, by notice to Service
Provider.
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Service Provider Agreement Page 49
Telestra
12 December 1995 Sales & Distribution
Mobile Communication Services
Level 2
Axicorp Pty Limited (ACN ▇▇▇ ▇▇▇ ▇▇▇) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone ▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile 03 9416 4024
Mobile ▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ Pager 016 378 657
Dear ▇▇▇▇▇,
Telstra Corporation Limited ("Telstra") wishes to amend the Service Provider
Agreement between Telstra and Axicorp Pty Limited ("Service Provider") dated 3
May 1995 as set out below:
1. Replace the "Telecom" wherever appearing with "Telstra."
2. Removal of Safe'n Sure Insurance
2.1 Remove from the definition of "Value Added Services" in clause 1.1,
the words: "the "Safe'n Sure" insurance service".
2.2 Delete clause 6.2(f)(iii). Renumber existing clause 6.2(f)(iv) as
6.2(f)(iii).
2.3 Amend paragraph 1.3(c) of Schedule 2 by:
(a) removing the words "+(SNS x 1)" from the VAS Fee % equation;
(b) replacing the figure "206" at the end of the VAS Fee % equation
with "196"; and
(c) removing the words:
"SNS equals the percentage of PIP Connections using the Safe'n
Sure Insurance Service expressed as a number;"
3. Remuneration
3.1 Amend clause 1.1 by:
(a) inserting the following definition after the definition after
the definition of "Controlled Entity";
""Co-operative Advertising" means advertising related to the
Mobile Services undertaken by Service Provider with Telstra's
approval as to the form and content of such advertising.";
and
(b) inserting the following definition after the definition of "Net
Connections":
""Net Receipts" means the total amount of national direct dial
call revenue in respect of charges for the supply of a Mobile
Service."
3.2 Amend Schedule 2 by:
(a) inserting the following subparagraph into paragraph 1.3:
"(aa) $30 for each New Connection in the Territory provided
that if the provision of the relevant Mobile Service is
discontinued or suspended to that New Connection within 6
months of the date on which the relevant customer
contracted with Telstra to acquire the Mobile Service,
Service Provider shall, within 5 Business Days of
receiving notice from Telstra to do so, refund to Telstra
any payments made by Telstra to Service Provider pursuant
to this paragraph;"
(b) replacing the words "8% of the ▇▇▇▇▇ ▇▇▇▇" in paragraph
1.3(a)(i) with "11% of Net Receipts.";
(c) replacing the words "6% of the ▇▇▇▇▇ ▇▇▇▇" in paragraph
1.3(a)(ii) with "9% of Net Receipts"; and
(d) amending paragraph 1.3 by inserting the following subparagraph:
"(b) for each New Connection where the relevant customer first
takes up the Value Added Service known as "MessageBank"
and maintains that service for a minimum period of 60
days -$15, payable 30 days after the expiration of that 60
day period."
The parties agree that the amendments set out above will take effect on and from
[1 January 1996 and shall therefore apply in respect of remuneration calculated
for December 1995 and each month thereafter].
Please acknowledge the consent of Axicorp Pty Limited to these amendments by
executing below and returning this letter to me.
Yours faithfully,
/s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Mobile Communications Services -------------------------------------------
Telstra Corporation Limited Signature of: /s/ Ravi Bhahia
-----------------------------
as authorised officer of Axicorp Pty Ltd
Date: 18/ 6/96
-- -- --
