ERICSSON
--------
BETWEEN
(1) ERICSSON AUSTRALIA PTY LTD
(A.C.N. 004 071854)
AND
(2) BENTLEYTEL.COM INC.
(A Nevada Corporation)
(EIN 88-0438035)
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This MEMORANDUM OF UNDERSTANDING is made the day of September 2000
BETWEEN:
(1) ERICSSON AUSTRALIA PTY LTD (ACN 004 071 854) of Level 37, The Tower,
Melbourne Central, 360 Elizabeth Street, Melbourne, Victoria, 3000, Australia
("Ericsson"):
AND
(2) BENTLEYTEL.COM INC (EIN 88-0438035), a Nevada Corporation, with offices
located at 4675 MacArthur Court, Suite 710, Newport Beach, California, 92660,
United States of America ("BentleyTel").
RECITALS:
A. Ericsson carries on the business of manufacturing and supplying
Telecommunications equipment and related infrastructure for use in all aspects
of the development, operation, management and maintenance of fixed and mobile
telephone networks and telecommunications services.
B. BentleyTel has particular expertise in installing, implementing and
managing telecommunications network within the Pacific Rim countries.
C. This MOU sets out in broad terms the arrangements under which Ericsson
and BentleyTel intend to co-operate with each other in the formation of a
partnership For upcoming projects primarily located in Australia, the
Philippines, Malaysia, the USA and other potential future markets.
THE PARTIES AGREE AS FOLLOWS:
1 . DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this MOU:
"Business Day" means a day in the State of Victoria not being a Saturday, Sunday
or public holiday gazetted as such for the entire day-,
"Business Hours" means the hours between 8.30 am and 5.30 pm on a Business Day
"Commencement Date" means 18 September 2000:
"Confidential Information" means all communications and all information whether
written visual or oral which is disclosed to the receiving Party which relates
to either Party; "End Date" means 17 September, 20031-
"INTELLECTUAL PROPERTY RIGHTS" includes copyright, trade mark, design, patent,
semiconductor or circuit layout rights, trade, business or company names, and
any rights to register such rights, whether subsisting before or after the
Commencement Date;
"Invention" includes any invention, drawing, design, model, contrivance,
structure specification, improvement, discovery, creation, idea, concept,
formula, process and other work or contribution however developed, created, made
discovered or conceived and whether or not:
(a) patented or patentable (whether by renewal or otherwise);
(b) registered or registrable as a design (whether by renewal or
otherwise),-
(c) protected by copyright; or
(d) otherwise protected or capable of protection by law anywhere;
"MOU" means this Memorandum of Understanding;
"Party" means a party to this MOU and "Parties" has a corresponding meaning;
"Term" means the period commencing on the Commencement Date and ending on the
End Date, or such earlier date if this MOU is terminated pursuant to the terms
and conditions of this MOU. Interpretation In this MOU, unless the context
otherwise requires.
a reference to any legislation or legislative provision includes any statutory
modification or re-enactment of, or any legislative provision substituted for,
and any subordinate legislation under, that legislation or legislative
provision;
a reference to a recital, clause, schedule or annexure is to a recital, clause,
schedule or annexure of or to this MOU, 1.2.3 a schedule or annexure forms part
of this MOU;
a reference to any MOU or document is to that MOU or document (and, where
applicable, any of its provisions) as amended, novated, supplemented or replaced
from time to time;
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a reference to any Party to this MOU includes that Party's executors/
administrators, substitutes, successors and permitted assigns:
where an expression is defined, another part of speech or grammatical form of
that expression has a corresponding meaning;
the singular includes the plural and vice versa, and a reference to any gender
includes all other genders;
headings are intended for ease of reference only and are not to be taken to
affect the interpretation or construction of this MOU;
a reference to currency is. unless otherwise stated, a reference to the lawful
currency of Australia; and
1.2,10 a reference to a person includes a corporation, firm, partnership,
association, trust, joint venture, authority, state or government or other legal
entity and vice versa.
2. TERM
2.1 This MOU shall be in force during the Term unless terminated earlier
pursuant to the terms and conditions of this MOU.
3. OBJECTIVES
3.1 The primary objective of the Parties under this MOU is to form a
partnership for upcoming projects primarily located in Australia, the
Philippines, Malaysia, the USA and any other new markets that BentleyTel will
enter during the Term of this MOU.
THE PARTNERSHIP WILL BE BASED ON THE FOLLOWING:
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- standard terms and conditions under which the Parties will work together
for each designated project (to be agreed by the Parties at a later date);
- service and maintenance agreements;
- financing options (agreed in advance) that can be used; and
- forecasting of project requirements and anticipated business
opportunities.
4. ROLES & RESPONSIBILITIES OF THE PARTIES
4.1 To give effect to the above objectives the responsibilities of the
Parties under this
MOU shall be to:
ERICSSON'S ROLES AND RESPONSIBILITIES IN THE PARTNERSHIP WILL BE AS follows:
- Technology partner;
- joint marketing with BentleyTel Preferred supplier;
- Main Contractor
- Integrator,
- Assist BentleyTel to identify new market opportunities,
for the purposes of each project entered into between the Parties pursuant to
the partnership.
BENTLEYTEL'S ROLES AND RESPONSIBILITIES IN THE PARTNERSHIP WILL BE AS FOLLOWS:
- Joint marketing with Ericsson;
- Trailing/green-housing new technologies;
- Performing relevant training BentleyTel personnel
- Providing local support in each project location
- Acting as a reference customer,
- Assist Ericsson to identify and open new market
opportunities
for the purposes of each project entered into between the Parties pursuant to
the partnership.
5. CONFIDENTIALITY
5.1 The Parties agree that they will not make any use of any Confidential
Information for any purpose other than in connection with the provision of this
MOU and agree that they will not communicate the Confidential Information to any
other party except as specifically permitted by the disclosing Party
5.2 Unless otherwise agreed by the disclosing Party. the receiving Party
shall positively guard against the direct or indirect disclosure of the
Confidential Information to any third party.
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5.3 The obligations of confidence contained in clauses 5.1 and 5,2 shall not
be taken to have been breached where the Confidential Information:
5.3.1 was in the public domain at the time it was disclosed or has
fallen into the public domain through no fault of the receiving
Party,-
5.3.2 was known to and recorded by the receiving Party prior to the
disclosure by the disclosing Party:
5.3.3 was disclosed after the express prior authorization of the
disclosing Party;
5.3.3 becomes known to the receiving Party from a source other than
the disclosing Party without breach of this MOU by the
receiving Party;
5.3.4 was independently developed by the receiving Party without the
benefit of any of the Confidential Information as evidenced
by written records,
5.3.5 the receiving Party is obliged to disclose by reason of any
legal requirement.
5.4 The obligations of confidence contained in clauses 5.1 and 5.2
survive the expiry or termination of this MOU.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Any Intellectual Property Rights arising as a result work
carried out under this MOU and all documents, calculations,
maps, notes, reports, data, models, samples, Inventions or
copyrightable material developed or created shall be the joint
property of Ericsson and BentleyTel. Either party shall have the
night of first refusal to purchase such properties that may
arise from this venture.
6.2 Nothing contained in this MOU shall affect the respective rights
of each Party. This MOU shall not operate as a direct or
indirect assignment or licence of any Intellectual Property
Rights held by either party prior to this MOU.
6.3 BentleyTel indemnifies Ericsson and holds Ericsson harmless
against and must compensate Ericsson for any and all claims,
demands, losses, costs and liabilities arising out of or
resulting from the actual or alleged infringement of any
Intellectual Property Rights of any third party where such
rights are utilised in connection with this MOU.
7. TERMINATION
7.1 Either Party may immediately terminate this MOU by giving
written notice to the other Party where:
7.1 1 the other Party commits a serious or persistent breach of this
MOU which is incapable of being remedied',
7.1.2 the other Party fails to remedy a breach of this MOU (which is
capable of remedy) in respect of which written notice of not
less than 30 days has been given by the first Party; or
7.1.3 the other Party is placed under some form of official management
or insolvency administration.
7.2 Either Party may terminate this MOU by giving 4 weeks' written notice
to the other Party at any time for any reason.
8. EFFECT OF TERMINATION
8.1 Termination of this MOU under any circumstances will not abrogate,
release or extinguish any debt, obligation or liability of a Party to
the other Party which may have accrued including, without limitation,
any such debt, obligation or liability which was a cause of
termination or arose out of such a cause prior to the date of
termination of this MOU.
8.2 Upon the termination of this MOU, for whatever reason, the Parties will
cease to use each other's Confidential Information and deliver any
documents containing or comprising such Confidential Information
provided to it to the disclosing Party.
9. NO SOLICITATION OF STAFF
9.1.1 Neither Party shall during the Term and for a period of 12 months from
the date of termination of this MOU, employ, solicit or entice away any
officer, manager, consultant or employee of the other Party whether or
not that person would commit a breach of contract by reason of leaving
the employ of that Party.
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10. GENERAL PROVISIONS
No variations to the terms of this MOU shall be valid unless made in writing and
signed by the Parties.
Neither Party may assign or otherwise deal with its rights or obligations under
this MOU or any part thereof without the prior written consent of the other
Party.
This MOU does not constitute either Party as a joint venture, partner, agent,
employee or fiduciary of the other.
10.4 This MOU comprises the entire MOU between the Parties with respect to
the subject matter of this MOU and supersedes all prior MOU's representations
and correspondence between the Parties with respect to that subject matter.
11. NOTICES
11.1 A notice. consent, approval or other communication (each a *Notice")
under this MOU must be in writing signed by or on behalf of the person giving
it, addressed to the person to whom it is to be given and:
111.1 delivered to that person's address;
11. 1. 2 sent by pre-paid mail to that person's address; or
11.1.3 transmitted by facsimile to that person's address.
11.2 A Notice given to a person in accordance with this clause is treated as
having been given and received:
11.2.1 if delivered to a person's address, on the day of delivery if a
Business Day, otherwise on the next Business Day;
11.2.2 if sent by pre-paid first class mail, on the fourth Business Day
after posting, in proving such receipt shall be sufficient to show that the
envelope containing the notice was properly addresses and posted by pre-paid
first class mail (air mail if available); and
11.2.3 if transmitted by facsimile to a person's address and a correct and
complete transmission report is received, on the day of transmission if a
Business Day, otherwise on the next Business Day.
11.3 For the purpose of this clause the address of a person is the address
set out below or another address of which that person may from time to time give
notice to the other
party:
Ericsson:
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Attention: Ms Dannielle Keen
Address: 112-118 Talavera Rd,
North Ryde NSW 2113
BentleyTel:
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Attention: Mr. Felino Molina
Address: Ist Floor Hwy Arcade.
47 Stuart Highway, Stuart Park, Northern Territory
BentleyTel.com USA
Attention ; Mr. John L. Walsh
Address: 2475 NorthWinds, Parkway, Suite 200.
Alpharetta, Georgia, 30004, USA
12. GOVERNING LAW
12, Each Party acknowledges that this MOU sets out an intention to conduct
future, business and that in these circumstances this MOU shall not create any
obligations on either Party to carry out the terms contained herein. However
each Party acknowledges the value of any Intellectual Property Rights that may
be created under this MOU and the no solicitation of staff clause under clause 9
and each Party reserves the right to seek damages or any other form of relief if
the terms of this MOU concerning these issues are breached. In these limited
circumstances these relevant terms of the MOU shall be governed by the law in
force in the state of Victoria, Australia.
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IN WITNESS WHEREOF the Parties have executed this Agreement at the head of this
agreement.
SIGNED for and on behalf of
ERICSSON AUSTRALIA LTD
(ACN004 0718)
by: Rob Hacker
s/s . . . . . . . . . .
in the presence of.
S/s
Signature of witness)
Danielle Keen Danielle Keen
(Name Of Witness - Block Letters
SIGNED for and on behalf of
BENTLEYTEL.COM INC.
(EIN 88-0438035)
A Nevada Corporation
by: John L. Walsh L Walsh
s/s
Chief Operating Officer
(Signature Witness)
s/s
Felino MOLINA
(Name of Witness - Block Letters)
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