WHOLESALE AGREEMENT
DATED: 2 December 1999
BETWEEN
TRADE WIND MARKETING PTY LIMITED
("TWM")
AND
PREMIERE INFORMATION SERVICES PTY LIMITED
("Premiere")
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TABLE OF CONTENTS
Clause Page No.
1.0 RECITALS
2.0 PURPOSE AND SCOPE
3.0 DEFINITIONS AND INTERPRETATION
3.1 Definitions
3.2 Interpretation
4.0 DUTIES OF TWM
5.0 DUTIES OF PREMIERE.
6.0 CHARGES
7.0 BILLING
8.0 PAYMENT
9.0 INTELLECTUAL PROPERTY
10.0 TERM
11.0 TERMINATION
12.0 NON-COMPETITION
13.0 GST
14.0 DISPUTE RESOLUTION
15.0 FORCE MAJEURE
16.0 RESTRICTION OF USE OF TANDEM
17.0 SEVERABILITY
18.0 CONFIDENTIALITY
19.0 ASSIGNMENT
20.0 SECURITY
21.0 COSTS
22.0 LAW
23.0 NOTICES
SCHEDULE 1 - SERVICES - Contact the Company for a copy
SCHEDULE 2 - CHARGES [Omitted pursuant to Confidential Treatment Request; filed
separately with Commission]
SCHEDULE 3 - SERVICE LEVEL AGREEMENT - Contact the Company for a copy
SCHEDULE 4 - BILLING OBLIGATIONS [Omitted pursuant to Confidential Treatment
Request; filed separately with Commission]
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WHOLESALE AGREEMENT
PARTIES: Trade Wind Marketing Pty Ltd ACN 052 100 455, of 27th Floor,
Grosvenor Place, 225 George Street, Sydney, NSW, 2000 ("TWM")
AND: PREMIERE INFORMATION SYSTEMS PTY LIMITED, ACN 001 722 292 of
Level 5, 120 Sussex Street Sydney, NSW, 2000 ("Premiere")
1.0 RECITALS:
1.1 The Parties have signed a Heads of Agreement dated 7th
September, 1999 under which they agree to form a
strategic partnership concerning the sales and
provision of certain enhanced fax and messaging
services, and to enter into a Wholesale Agreement for
the delivery of certain traffic generated by TWM's
customers via the Premiere global network.
1.2 This Agreement is the Wholesale Agreement referred to
in the Heads of Agreement.
2.0. PURPOSE AND SCOPE
Premiere is a provider of broadcast faxing and other enhanced
fax or messaging services more fully described in Schedule 1
(the "Services"). TWM wishes to supply its customers generating
certain traffic in Australia with the Services by sending its
fax traffic (and, at its sole discretion, other enhanced
messaging traffic) through the Premiere network. Premiere has
agreed to enter into this Agreement with TWM.
3.0 DEFINITIONS AND INTERPRETATION
3.1 Definitions
In this Agreement:
" Agreement" means this Agreement, including its Schedules, as
varied from time to time in accordance with its terms;
`Confidential Information" of a party includes all information
marked as confidential by that party or any of its Related
Bodies Corporate or which the recipient knows or ought
reasonably to be aware is confidential (regardless of its form
and whether the other party becomes aware of it before or after
the date of the Agreement) but excludes information that is
public knowledge otherwise than as a result of a breach of the
obligations of confidentiality under this Agreement;
"Commencement Date" means the date of execution of this
Agreement;
"Computer System" means the computer system comprising physical
equipment, system and application software utilised by TWM and
any replacement computer system used by TWM from time to time;
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"Customer" means a customer of TWM which acquires any of the
Services;
"Equipment" means the computer hardware and software specified
in Schedule 1;
"GST, GST Law" and other terms used in this clause which have
definitions in the A New Tax System (Goods and Services Tax)
Act 1999 have the meanings provided in those definitions and
any other applicable legislation and any ruling whether binding
or non-binding;
"Insolvency Event" means any of the following events;
(a) a receiver, manager, liquidator, provisional liquidator,
receiver and manager, trustee, administrator, controller
or similar officer is appointed in respect of any asset
of either party;
(b) either party becomes, is, or is deemed under any
applicable law to be insolvent or unable to pay its
debts as they fall due;
(c) any writ of execution, garnishee order, injunction, or
similar order, attachment, distress or other process is
made, levied or issued against or in relation to any
asset of either party.
"Intellectual Property Rights" means all intellectual property
rights including (but not limited to) copyright, trade mark,
design, patent, circuit layout rights, trade secrets,
confidential information or other proprietary rights, or an
rights to registration of such rights whether created before or
after the date of this Agreement.
"Related Body Corporate" has the meaning given in sections 9 of
the Corporations Law.
"Service Level Agreement" means the Service Level Agreement set
out in Schedule 3, as amended and updated from time to time.
"Service" means the telecommunications and related services set
out in Schedule 1, as varied from time to time in accordance
with this Agreement.
"Special Products" means but is not limited to the TWM front
end and Gateway technology providing special messaging services
and enhancements through which TWM customer traffic is directed
and as a result provides enhancements, value added services and
features etc and is enhanced with added features/services from
time to time.
"Software" means the computer software referred to in Schedule
1 and any upgrades, variations or amendments of that software.
"$" means the lawful currency of the Commonwealth of Australia
"Tandem Switch" refers to TWM's system by which it receives and
transmits fax broadcasts and point to point traffic on behalf
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of its customers and constitutes separately the hardware and
licensed Flexifax application software that enables the switch
to be used for the Flexifax fax distribution purpose.
3.2 Interpretation
In this Agreement:
headings are for convenience only and do not affect
interpretationand unless the context indicates a contrary
intention:
(a) words denoting the singular number include the plural
and vice versa; words denoting individuals include
corporations and vice versa; and words denoting any
gender include all genders;
(b) references to clauses and Schedules are references to
clauses and Schedules of this Agreement;
(c) references to this Agreement and any deed, agreement or
instrument will be deemed to include references to this
Agreement and the deed, agreement or instrument as
amended, novated, supplemented, varied or replaced from
time to time;
(d) references to any party to this Agreement include its
successors or permitted assigns;
(e) references to any legislation or to any section or
provision thereof includes any statutory modification
or reenactment, any substituted statutory provision,
and ordinances, bylaws, regulations and other statutory
instruments issued under them; and
(f) references to currency are to Australian dollars.
4.0 DUTIES OF TWM
TWM will be responsible for:
(a) selling, marketing (in some cases jointly) and
promoting the Services, including TWM services it has
developed using its own front end and Gateway
technology ("Special Products");
(b) ongoing account management all of the TWM Customer
accounts;
(c) providing customer telephone service and technical
support services in accordance with the Service Level
Agreement which will be entered into by the parties on
terms to be agreed by the parties (the "Service Level
Agreement") and for informing its own customers that
they should amend their lists, where there have been
reports of unwelcome call numbers, when requested to do
so;
(d) invoicing the TWM Customers and collecting payments in
accordance with invoices from those Customers;
(e) providing installation, training and support services
for the Services' applications to its own staff and
customers; and
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(f) integrating Web based products and gateway with the
Premiere system in conjunction with Premiere and tools
provided by Premiere with each party bearing its own
costs, or as otherwise reasonably agreed by the
Parties.
(g) TWM may enhance its Special Products and provide
additional services to TWM customers in anyway it sees
fit. Premiere will be offered badging rights to
appropriate Special Products under mutually agreed
terms.
5.0 DUTIES OF PREMIERE
Premiere will be responsible for:
(a) providing TWM with the Services in accordance with the
Service Level Agreement and tools to allow TWM to
rebadge the service if required under mutually agreed
terms. (b) providing TWM with accurate billing data in
accordance with clause 7 of this Agreement;
(c) maintaining the enhanced fax and messaging network
(which includes network reliability, speed and capacity
and all associated integrating software) in accordance
with the Service Level Agreement which will be entered
into by parties on terms to be agreed by the parties;
(d) providing daily and monthly operations reports which
include information such as customer's monthly usage,
traffic profiles and other relevant operational data in
accordance with the Service Level Agreement;
(e) providing customer telephone service and technical
support services at its cost in accordance with the
Service Level Agreement;
(f) providing Premiere staff members to assist in the
co-ordination and the implementation of the migration
process, at its own cost;
6.0 CHARGES
(a) The charges current on the date of this Agreement are
set out in Schedule 2 (the "Charges"). Premiere will
not increase the Charges for the first 12 months of
this Agreement. The charges shall be reviewed every six
months in good faith and when applicable adjusted to
take into account trends in telecommunications industry
tariffs in Australia. If the revised charges are not
acceptable to TWM then TWM will be able to terminate
this agreement giving 90 days notice of intention to do
so.
(b) The charges are based upon Australian originated
traffic. It is agreed that TWM can start other similar
operations under similar Strategic Partnership
arrangements with other Premiere organisations. Under
this Agreement Premiere will assist in these
discussions with the local Premiere organisation.
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7.0 BILLING
1. Premiere will send to TWM raw billing files for the
Services provided by Premiere for the previous week each
Friday. This will be sent before 10 a.m. for processing
by TWM. An additional billing file to cover the last few
days of the month is to be sent before 10am on the day
following the last day of the month.
2. At the end of each month, Premiere will issue an invoice
to TWM, in a form set agreed by the parties, for Charges
relating to the Services provided by Premiere to TWM in
the preceding month. This will include an invoice to
TWM, in a form set agreed by the parties, for Charges
relating to the Services provided by Premiere to TWM in
the preceding month on the first day of the following
month
8.0 PAYMENT
Except to the extent that TWM has disputed an amount in an
invoice, TWM must pay the Charges on each invoice provided by
Premiere within 60 days from the date of the invoice.
9.0 INTELLECTUAL PROPERTY
Each party will retain all right, title and interest to any
intellectual property which that party deploys or makes
available to the other party pursuant to this Agreement.
10.0 TERM
The term of this Agreement will be for an initial period of 12
months(the "Initial Period") which can be extended once for a
further 12 months by agreement between the parties, . Three
months notice to be given by TWM should it not wish to extend
the Agreement beyond the Initial period.. After expiry of the
Initial Period, or any extension, this Agreement will continue
until terminated.
11.0 TERMINATION
Either party may terminate this Agreement:
(i) if the other party materially breaches any
provision of this Agreement or the Service Level
Agreement and does not rectify the breach within
28 days of being notified of the breach.
(ii) if an insolvency event occurs (for example, a
Court orders that a party be wound up) in
relation to the other party;
(iii) If either party gives six months notice to the
other that it wishes to terminate this
Agreement;
(iv) if there is a total and irreparable failure of
the Equipment which is caused by something that
is beyond the reasonable control and without the
fault or negligence of Premiere
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(v) Should there be a change in management or
operational control of TWM or Premiere then TWM
has the right to amend or terminate this
agreement
12.0 NON-COMPETITION
(a) Premiere may compete with TWM in relation to the
provision of the Services in accordance with the terms
of this clause Premiere must not knowingly promote the
Services to or entice away any of TWM's enhanced fax or
messaging service customers or who use any of the
Services ("Enhanced Fax Customer" or Special Products).
Premiere must not knowingly induce TWM's Enhanced Fax
or messaging Customers to transfer away from TWM for
the duration of this Agreement. TWM must not knowingly
promote the Services to or entice away any of
Premiere's enhanced fax or messaging service customers
or who use any of the Services ("Enhanced Fax
Customer"). TWM must now knowingly induce Premier's
Enhanced Fax or messaging Customers to transfer away
from Premiere for the duration of this Agreement. The
provisions of this Clause shall apply for a period of
two years after the date of termination of this
Agreement.
(b) Premiere and TWM agree that if either party is
supplying any of the Services or Special Products to a
branch or division of a corporate customer or
government department, the other party will not promote
any of the Services to that particular branch or
division of a corporate customer or government
department or attempt to entice that customer away from
the first party for any of the Services or Special
Products. For the avoidance of doubt, in the event that
such a customer makes an unsolicited approach to a
party to provide any of the Services, such a party is
at liberty to do so.
(c) Premiere shall be the exclusive fax delivery provider
of the Enhanced Fax Services to TWM customers for the
duration of the Agreement.
(d) Premiere acknowledges that TWM customers will at all
times remain TWM customers even if they are directly
using the Services .
13.0 GST
Notwithstanding any other provision of this Agreement, if
Premiere becomes liable for any amounts of GST on any supplies
made under or in connection with this Agreement then;
(a) Premiere may increase the amounts otherwise payable by
TWM under this Agreement by the amount of the GST; and
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(b) Premiere will provide TWM with a tax invoice which will
enable TWM, where entitled under the GST law, to claim
an input tax credit for TWM's acquisition of that
supply; and
14.0 DISPUTE RESOLUTION
14.1 If any dispute or difference arises between TWM and
Premiere out of or in connection with the performance
of this Agreement or the Services, but not relating to
any question arising from obligations of
confidentiality, either party must give the other
written notice of such dispute within 28 days. The
parties agree that they will make every reasonable
effort to resolve the difference in a commercially
reasonable and amicable way within 45 days of receipt
of notice of the dispute under this clause.
14.2 If resolution under clause 14.1 cannot be reached, a
meeting will be held within 15 days between the
relevant managers of the parties to agree appropriate
corrective actions to be implemented within an agreed
timeframe which is not to exceed 30 days.
14.3 If resolution cannot be reached under clause 14.2, a
meeting will be held between the respective Chief
Executive Officer ( or his or her delegate) of each
party to agree appropriate corrective actions to be
implemented within an agreed timeframe which is not to
exceed 30 days.
14.4 If resolution cannot be reached under clause 14.3, the
parties may jointly appoint an independent expert to
resolve the dispute. If the parties cannot agree on a
suitable independent expert, then either party may
request the President of the NSW Bar Association at
that time to appoint a barrister of not less than 10
years standing to act as an expert and determine the
appropriate corrective action to be implemented within
an agreed timeframe.
14.5 Notwithstanding this clause 14, either party may
commence court proceedings relating to any such dispute
or may properly seek urgent interlocutory relief
without complying with this clause 14
15.0 FORCE MAJEURE
15.1 Neither party shall be liable for any default or delay
in the performance of its obligations under this
Agreement to the extent that such default or delay is
caused, directly or indirectly, by fire, flood,
earthquake, elements of nature or acts of God, acts of
war, terrorism, riots, civil disorders, rebellions or
revolutions, strikes, lockouts, or any other cause
beyond the reasonable control of such party
(individually each being a "force majeure" event),
provided such default or delay could not have been
prevented by reasonable precautions.
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15.2 In such event, the non-performing party will be excused
from any further performance or observance of the
obligations so affected for as long as such
circumstances prevail. Any party so delayed in its
performance will immediately notify the other by
telephone, to be confirmed in writing five calender
days following the inception of such delay, and
describe at a reasonable level of detail the
circumstances causing such delay.
15.3 Premiere warrants that it has implemented a Y2K plan to
minimise the impact, if any, from the 'millenium bug'
and that alternative plans are also in place should
problems, failures or delays occur with any of its
carriers or service providers but does not warrant
against the impact third party suppliers and customers
may have on Premiere's ability to provide the services
due to their systems not being Y2K compliant Premiere
will not be held liable for losses incurred by TWM or
other parties due to problems that occur as a result of
suppliers and customers not being Y2K compliant or
experiencing Y2K related problems.
16.0 RESTRICTION OF USE OF TANDEM HARDWARE AND SOFTWARE
16.1 TWM agrees not to sell, gift or bequeath the right,
license or other entitlement to use the Flexifax Tandem
application software, or means by which TWM has in the
past been legally entitled to use the Tandem switch and
its Flexifax Tandem application software to any person,
business or body corporate for the duration of this
Agreement.
16.2 TWM may at its sole discretion keep, use or dispose of
the Tandem switch hardware and other parts of its
original network.
17.0 SEVERABILITY
If any part of the Agreement is held to be void, invalid or
otherwise unenforceable, it will be deemed to be severed from
this Agreement and the remainder of this Agreement will
continue in full force and effect.
18.0 CONFIDENTIALITY
Neither party will make a public announcement or disclose to
any person details of the discussions between the parties and
the terms of this Agreement unless it first consults with and
obtains the written agreement of the other party (which
agreement will not be unreasonably withheld), provided that:
(a) following such consultation, no party shall be entitled
to withhold agreement in the case of a public
announcement or notification where and to the extent
that that party is required by law or the listing
requirements of any stock exchange; and
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(c) a party is entitled to make such disclosures to the
directors, secretaries, professional advisers and
bankers of that party so long as the party uses all
reasonable endeavours to ensure that the matters
disclosed are kept confidential.
19.0 ASSIGNMENT
Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other, whose
consent shall not be unreasonable withheld
20.0 SECURITY
It is agreed that for the first twelve months of this agreement
that the registered customer base of Flexifax can be used as
security against unpaid invoicing triggered under clause 10
(ii) in the event that TWM is unable to rectify any
indebtedness after being given 60 days to do so. The value of
this customer base is to be calculated based upon one and a
half times the total annualised revenue based on carried
traffic under this agreement generated from the total customer
base by Flexifax and will be purchased in full by Premiere and
a portion used to offset the debt. This calculation will be
based upon the total annualised TWM customer revenue calculated
from the average of the Flexifax monthly customer revenue
figures of the previous three operational months seasonally
adjusted. Any surplus after repayment of debt is to be returned
immediately to TWM.
21.0 COSTS
Except as otherwise agreed in writing by the parties, each
party shall bear its own costs and expenses in connection with
action taken by it in relation to this Agreement.
22.0 LAW
This Agreement is governed by the laws of New South Wales and
each of the parties submit to the jurisdiction of the Courts in
that State.
23.0 NOTICES
(a) All notices and other communications required or
permitted to be given or served under this Agreement
may be delivered by hand, by pre--paid post or by
facsimile as follows:
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To: The Company Secretary
Trade Wind Marketing Pty Limited
Address: 27th Floor, Grosvenor Place
225 George Street
SYDNEY NSW 2000
Fax: (02) 9250 8890
To: The Company Secretary
Premiere Information Systems Pty Limited
Address: Level 5, 120 Sussex Street
SYDNEY NSW 2000
Fax: (02) 9338 0193
(b) Notices shall be deemed to have been received, in the
case of personal delivery, on the day of delivery, in
the case of posting by pre-paid post, on the second day
after posting, and in the case of a facsimile, on the
day immediately following the date of despatch and
confirmation of the answerback code of the receiving
party's machine.
<PAGE>
DATED: 2nd December 1999
SIGNED for and on behalf of )
Trade Wind Marketing Pty Limited )
ACN 052 100 455 by /s/ Nick Bird
..................................
In the presence of: )
(Signature)
/s/ Kevin Bryan Levine
.....................................................
(Signature of Witness)
Kevin Bryan Levine
.....................................................
(Name of Witness in Full)
SIGNED for and on behalf of )
PREMIERE INFORMATION SYSTEMS )
PTY LIMITED ACN 001 722 292 by /s/ illegible
..................................
In the presence of: )
(Signature)
/s/ Craig McClosky
.....................................................
(Signature of Witness)
Craig McClosky
.....................................................
(Name of Witness in Full)
