EXHIBIT 10.2
FORM OF IP GATEWAY COMMERCIAL SERVICE AGREEMENT
187
10.2 p1
GOLDEN ACCESS GROUP
Commercial Service Agreement
This Commercial Service Agreement (hereinafter called the "Agreement") entered a
of July 13, 1999 between (hereinafter called "Customer") of (hereinafter called
"Territory") and Golden Access Group of Miami, Florida, USA (hereinafter called
"Golden Access") establishes the terms and conditions under which Golden Access
will provide international IP Telephony termination service (hereinafter called
"Service") to the Customer.
A. Nature of Services
Golden Access will provide non-exclusive termination service for
international telephone traffic originating from the Customers'IP
Telephony Gateway purchased from Golden Access under the IP Telephony
Gateway Purchase Agreement. The destinations and rates offered are
outlined in Appendix B, attached hereto.
Customer will allow Golden Access to terminate traffic from its global
network destined for the Territory via their local IP Telephony Gateway
at rates as stated in Appendix C, attached hereto.
B. Customer Obligations
Customer will be responsible to supply all the equipment and connection
services required to interface the IP Telephony Gateway to the local
PSTN network and the Internet. All associated costs are borne solely by
the Customer, including recurring connection charges, throughout the
term of this Agreement. Customer is solely responsible for the all
administrative and technical support aspects of their subscribers,
including billing and collection.
X. Xxxxxx Access Obligations
Golden Access will provide remote technical support on a 24x7 basis at
no charge to the Customer. The Customer will provide Golden Access
wi8th all the necessary information and cooperation required for its
technical support personnel to remotely access the system for
maintenance and troubleshooting purposes. These procedures are outlined
in Appendix D, attached hereto.
If the Customer should request additional on-site technical support,
this will be provided at the prices and terms listed in said Appendix
D.
In the event that a Service Interruption occurs and a resolution has
not been provided by Golden Access with 24 hours of the problem being
reported, the Customer may, at its discretion, invoke Clause 4.3 of the
General Terms and Conditions herein. A Service Interruption will be
deemed to have occurred only if the entire service becomes unusable to
the Customer as a result of failure of Golden Access's Product used to
provide the Service and only where the interruption is not the result
of a) the negligence or acts of the Customer or its agents; b) the
failure or malfunction of non-Golden Access equipment or systems not
provided by Golden Access; c) circumstances or causes beyond the
control of Golden Access; or d) a service interruption caused by
scheduled service maintenance, alteration or implementation.
The foregoing states the Customer's sole remedy for service
interruption under the Agreement, and in no event shall Golden Access
be liable for any indirect, consequential or special loss or damage
suffered which, for the avoidance of doubt, shall include loss of
profits and contracts.
188
10.2 p2
D. Billing
In consideration of the services rendered by Golden Access, Customers
shall pay termination fees as outlined in Appendix B which may be
adjusted from time to time at the discretion of Golden Access and the
new rate table shall be effective upon 5 days notice, unless interim
rate changes are necessary to improve Quality of Service.
Golden Access shall pay the Customer for traffic termination into the
Territory via their IP Telephony Gateway at the termination fees
outlined in Appendix C.
In order to secure payment for these services, the Customer agree to
deposit prior to the performance of any services an amount sufficient
to cover one times the estimated average weekly sales volume. In the
case where Golden Access intends to use the Customers' Internet
Telephony Gateway to terminate traffic into the Territory, the parties
agree to offset the Customers' deposit by the amount of the estimated
average weekly sales volume that Golden Access will use. This deposit
shall be either as Cash, Certified Cheque, Bank transfer and/or an
irrevocable Letter of Credit from a financial institution acceptable to
Golden Access. Said deposit shall be subject to offset by Golden Access
in the event payment of the outstanding account balance is no made
after 7 days from receipt of invoice. Golden Access reserves the right
to review the deposit from time to time and adjust the required amount
necessary based upon invoiced amounts for previous billing periods.
A weekly financial settlement will take place between Golden Access and
the Customer. This settlement will be based upon the CDR (Call Detail
Records) produces by the Service which indicate the necessary
accounting information required to calculate the amount due. Golden
Access will prepare the invoice and a settlement report detailing each
transaction from, the CDRs collected by its Network Control Center.
Should there be any discrepancies in the call detail reports, the items
in question shall be deferred to a further review process. These
discrepancies shall in no way delay the settlement process as a whole
and will be treated as a separate deficiency to be reconciled within a
period of 30 days.
E. Term of Agreement
The initial term of this Agreement is for a period of two (2) years and
shall be extended on an annual basis thereafter unless terminated under
the terms of Clause 3 of the General Terns and Conditions of this
Agreement.
189
10.2 p3
GENERAL TERMS AND CONDITIONS
Clause 1 - Copyright and Confidentiality
1.1 Each Party agrees to maintain in strict confidence all plans, designs,
drawings, trade secrets and other proprietary information of the other
Party which is disclosed pursuant to this Agreement.
1.2 Golden Access retains title to all portions, excluding third party
licenses, of the software associated with the Product. A Non-Disclosure
Agreement, as per Appendix A, shall be signed by both Parties.
Clause 2 - Prices/Payment Terms
2.1 All prices are FOB Miami, FLA, USA
2.2 Golden Access reserves the right to charge interest on all delinquent
payments at an annualized rate of 2 percentage points above the
commercial rate as listed by its banking institution.
2.3 The Golden Access prices do not include the cost to Golden Access or
its employees of any taxes, duties, levies or other like charges
payable by them or any of them under the laws or regulations in force
in countries other than the United States and to the extent that such
taxes, duties, levies and other like charges are required to be paid,
these shall be borne solely by the Customer.
Clause 3 - Warranty
3.1 Golden Access warrants that the Product shall be free of defects and
perform in accordance with Golden Access's specifications for a period
of ninety (90) days from delivery to the Customer. Golden Access" sole
obligation under this warranty shall be to provide remote Technical
Support as outlined in Appendix A in an effort to remedy the defect.
The warranties in this article will be voided if the Product is
modified in any way by the Customer and/or its agents without written
authorization from Golden Access. GOLDEN ACCESS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OF IMPLIE, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
190
10.2 p3 cont.
Clause 4 - Liability
4.1 Under no circumstances shall Golden Access, its employees or
contractors be liable for any direct, indirect, incidental, special,
punitive or consequential damages that may result in any way from the
negligence or acts of the Customer or its agents, the failure or
malfunction of non-Golden Access equipment, the Customer" (or Customer"
authorized users) use of, or inability to use the Product or any part
thereof, resulting from errors, omissions, interruptions, delays in
operation or transmission, or any failure of performance of the
Internet and/or PSTN networks.
4.2 Neither Golden Access or its third party licensors will be liable for
indirect, incidental, special or consequential damages including but
not limited to lost data or lost profits, however arising, even if it
has been advised of the possibility of such damages. The liability of
Golden Access and its third party licensors for damages under this
agreement shall in no event exceed the amount paid by the Customer to
Golden Access under this Agreement for the Product as to which the
claim rose.
Clause 5 - Force Majeure
5.1 Golden Access shall not be liable for any delay or failure in
performance on any part of this Agreement to the extent such delay or
failure is caused by an event of Force Majeure, including but not
limited to, fire, flood, explosion, accident, war, strike, embargo,
government requirement, civil or military authority, Act of God,
inability to secure materials, labour or transportation, acts of
omissions of common carrier or warehouseman, or any other causes beyond
their reasonable control. Any such delay or failure shall suspend the
Agreement until the Force Majeure condition ceases and the Term shall
be extended by the length of the suspension.
191
10.2 p4
Clause 6 - Suspension/Termination
6.1 Either Party may, by written notice to the other Party, suspend or
terminate its obligations under the Agreement
a) in the event that either Party shall have failed to pay or authorize
payment of any such sun to the other Party when due under the
Agreement; or
b) in the event that either Party is in breach of the Agreement
and shall fail after receiving not less than thirty (30) days
written notice to take effective steps to remedy such breach;
or
c) in the event that either Party goes into liquidation except
for the purposes of corporate reorganization or otherwise
ceases trading.
Any suspension or termination as a result of the foregoing, does not
absolve the Customer from its obligations to pay any outstanding
invoices due under the Agreement.
Clause 7 - Effective Date of Agreement
7.1 This Agreement shall become effective on that date which it is duly
initialed, signed and dated by authorized representatives of Golden
Access and the Customer. Neither Party may assign, transfer the whole
or any part of this Agreement to anyone without written consent by the
other Party.
Clause 8 - Arbitration and Jurisdiction
8.1 All differences and disputes between the Parties arising from this
Agreement which cannot be settled by mutual agreement shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce (ICC). The arbitration proceeding
shall take place at Miami, Florida and the language of the arbitration
proceeding, the award and all documents filed of submitted in
connection therewith shall be in English.
8.2 This Agreement shall be governed, construed and interpreted in
accordance with the laws of State of Florida, USA.
8.3 All correspondence relevant to the performance of this Agreement shall
be in English and when given to Golden Access, should be addressed to:
Golden Access Group
0000 Xxxxxxxx Xxxxxx X-0000
Xxxxx, XXX 00000
And given to the Customer, should be addressed to:
This agreement supersedes all other prior discussions and negotiations between
the Customer and Golden Access and sets forth the understanding between both
Parties as to the intent of this Agreement. It may be modified in writing only,
provided it is signed by a duly authorized representative of both Parties.
INWITNESS WHEREOF, the Parties have executed this Agreement on the date herein;
Golden Access Group Customer
192
10.2 p5
Appendix A
Confidentiality and Non-/Disclosure Agreement
This agreement is entered into as of ___________________between_________________
and Golden Access Group, WHEREAS, each entity executing this agreement
(hereinafter "Party") agrees that for the purpose of evaluating a potential
business relationship, the parties will disclose and receive information under
the terms and conditions specified below:
NOW THEREFORE, the parties hereby agree as follows:
1. All communications or data, in any form, which are disclosed by one
Party or any of its subsidiary, parent or associate companies
("Disclosing Party") to the other Party or any of its subsidiary,
parent or associate companies ("Receiving Party") and which are to be
protected hereunder against unrestricted disclosure or competitive use
by the Receiving Party shall be deemed to be "Confidential
Information".
2. All Confidential Information, if in writing or other tangible form,
shall be labeled as "Confidential" at the time of its delivery, and, if
oral, shall be identified as "confidential" prior to disclosure.
3. Confidential Information of the Disclosing Party shall e treated as
confidential and safeguarded hereunder by the Receiving Party for a
period of two (2) years from the date of disclosure unless earlier
waived in writing by the Disclosing Party.
4. The Receiving Party agrees that (a) any Confidential Information
disclosed hereunder shall be used by the Receiving Party solely for the
purpose set forth above and (b) except as may be required by applicable
law or legal process, the Receiving Party will not disclose or
disseminate such Confidential Information to anyone, except to those
employees (including employees of its parent, subsidiaries and
affiliates) and professional advisors who have the need to know such
Confidential Information for the purpose for which it is disclosed,
unless and until such time as such Confidential Information:
a) is available generally to the public, other than as a result of a
breach of this Agreement; or,
b) is disclosed lawfully to the Receiving Party by a third party who is
free lawfully to disclose the same; or,
c) is developed independently by the Receiving Party; or
d) The applicable period of confidentiality pursuant to paragraph 3 has
ended.
e) Is already in the possession of the Receiving Party and is subject to
an existing agreement of confidence between parties.
5. The Receiving Party shall use reasonable safeguards against the
unauthorized disclosure of confidential and proprietary information and
shall advise all of its employees and professional advisers having
access to Confidential Information of the obligations hereunder.
6. Upon expiration of the period of confidentiality, or sooner upon
written request of the Disclosing Party, all Confidential Information
in the possession of the Receiving Party shall be returned to the
Disclosing Party or destroyed, at the option and instruction of the
Disclosing Party.
7. It is understood that this Agreement is not intended to, and does not,
obligate either Party to enter into any further agreements or to
proceed with any relationship or other transaction.
8. This agreement shall be governed by and construed in accordance with the laws
of the State of Florida USA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date herein.
Company:_______________________ Golden Access Group
Signature:_______________________ _________________________
Name: _______________________ _________________________
193
10.2 p6
Appendix B
Golden Access Rate Table
194
10.2 p7
Appendix C
Customer Territory and Rate
Territory: Columbia
Rate: $US 0.05 per minute
195
10.2 p8
Appendix D
Golden Access Commercial Service Agreement
Technical Support Procedures
In the event that the Customer requires remote Technical Support, Golden Access
will offer this service on a 24 x 7 basis. The procedure is as follows:
1) The Customer may either contact Golden Access at
xxxxxxx@xxxxxxxxxxxx.xxx or in the event of a critical problem, contact
the Golden Access 24 hour hotline (x0-000-XXX-XXXX) and report the
problem to the customer service operator.
2) In the event of a non-critical request for Technical Support, Golden
Access will make its best effort to respond to the Customer within the
net available business day to provide further assistance.
3) In the event of a critical request (out of service) for Technical
Support, golden Access will contact the Customer within 4 hours of the
reporting time to commence their investigation into the problem.
4) If No.3 above is caused by non-Golden Access equipment and/or software,
it will be the responsibility of the Customer to directly contact the
suppliers for technical support.
5) In the event that a Customer requests on-site support by Golden Access
personnel, the charge will be $US 750 per day plus living expenses and
return business class airfare at cost.
