SERVICES AGREEMENT
BETWEEN
KEYZONE COMPANY LTD
AND
THIS SERVICES AGREEMENT (the Agreement) is made and entered into as of the .
(the Effective Date),
Between KEYZONE COMPANY LTD, hereinafter referred to as Keyzone, whose registered office is located at Zinas Kanther 16, Karantoki Building 7th floor, Flat/Office 25-26, PC 1065, Nicosia, Cyprus and;
______
WHEREAS, Keyzone desires to purchase certain telecommunication termination services provided by provider, all as more fully described below on the terms and conditions contained herein.
NOW THEREFORE, the Parties, in consideration of the mutual covenants and agreements hereafter set forth, agree as follows:
1. Services to be provided
provider shall provide international call termination services, whereas a call is taken to mean a communication from a person to person or person to application, to Keyzone attributed international telephone numbers as per the current keyzone price lists and such other services as the parties may agree to provide as part of this Agreement, either in substitution for or in addition to call termination services. Call terminations maybe performed via voip(voice over IP), via pstn, via hosted ivr, via fax, via modem, other.
2. Exclusivity
Keyzone shall re attribute international telephone numbers used for the "services" to provider and guarantees that provider is the exclusive user of these telephone numbers until the numbers are either given back to keyzone or requested back by keyzone at it`s entire descretion.
This does not prohibit the parties from independently providing, developing or otherwise acquiring similar or different products, services and technologies.
This Agreement does not impose any minimum volume or capacity commitment or obligation on either of the parties, but the parties will make sure that capacity is sufficient for service provision according to the forecast provided by the provider.
3. Charges, Billing and Payment
3.1. Termination charges applicable to the Services between Keyzone and provider shall be set out in current price lists for "premium numbers", "fax numbers", and "other services" . The service areas and the rates listed in Keyzone price lists are subject to changes with 7 days written notice by Keyzone to provider for decreases and immediately for price increases..
3.2. Keyzone shall provide daily traffic statistics to provider through to its online traffic web tool.
3.3 At the beginning of each billing period (see current price lists for billing period), provider shall provide Keyzone with an invoice for the previous billing period`s traffic terminated that includes the following information: the total duration of calls, the price per minute and the total charges for the service based on traffic statistics provided by Keyzone as per keyzones online traffic web tool and credit note confirmation.
The call duration Time shall be measured in seconds rounded up to the nearest second. Call charges shall be rounded to the nearest four decimal places. The minimum call duration shall be one second. No charge shall be payable for the conveyance of any call which is not connected.
3.5. Keyzone shall pay to provider all undisputed and agreed amounts shown on an invoice, within fortyfive (45) days from receipt of providers invoice or according to latest Keyzone price list payment cycle. Invoice will be sent by mail to the address used on "sign up" to Keyzone services.
Notwithstanding notification of a dispute over Charges, in the event that Keyzone shall fail to pay any amount by the due date, provider is entitled to charge and receive interest in respect of any such amount outstanding at a rate equal to four percentage points above the 3 month London Interbank Offered Rate (LIBOR) for euro as quoted on the Telerate Pages or on any other standard market reference for LIBOR from the date on which the amount becomes due until the date on which it is paid (whether before or after judgement). Such interest shall accrue day by day and shall not be compounded.
3.6. An invoice shall be deemed to have been accepted if Keyzone does not object in writing within one hundred and twenty (120) days following the date of receipt of the invoice. Keyzone agrees to notify provider of an amount in dispute in writing, identifying clearly the disputed invoice and the reasons why it is challenged (discrepency of minutes with originating operator, fraud claim, other) and shall use commercially reasonable efforts to settle such dispute within forty five (120) days of notification of such dispute, failing which the dispute may be referred forthwith by either party for investigation and determination by such person, firm or company as the parties may agree, or in default of agreement, as may be nominated by the President of the Institute of Charter Accountants (upon the request of either party) to act as an expert and not as an arbitrator and whose decision, in the absence of evidence of manifest error, shall be final and binding.
3.7 Keyzone will not pay traffic that is clearly generated by fraudulent means. Keyzone does not pay any traffic generated by missed calls to mobile handsets a.k.a. missed call fraud, wan giri, voice broadcasting, voice blast, and or traffic that is the result of unsolicited SMS messages sent to callers with misleading, or not, advertising inticing calls. Provider will have 7 days to disprove any claims made by keyzone anti fraud department.
3.8. All monetary references in this Agreement are denominated in EURO,USD, GBP,CHF and clearly set forth in the current price list and must be settled as such.
4. Technical and Operational Matters
Each Party will install and maintain, at its own expense, all equipment and routing tables within its own network, as necessary for the Services provision.
5. Branding; Publicity
Neither Party shall use the other Partys trademark either on or in connection with the
Services, Subscriber Services or otherwise without the prior written consent of the other
Party. The Parties agree that no public statements or announcements relating to this
Agreement, the Services, Subscriber Services or their relationship shall be made by either
Party without the prior written consent of the other Party.
6. Term and Termination
This Agreement shall commence on the date it is signed by both parties and is effective from such date, unless Services have been provided prior to the execution of this Agreement in which case the Agreement shall be effective from the date Services were first provided (Effective Date). The Agreement shall continue for an initial period of 12 months from the Effective Date and shall automatically continue thereafter. Either party at its sole discretion may terminate the agreement upon thirty (30) days prior written notification to the other party.
Either party may at its sole option, terminate this Agreement forthwith in writing within fourteen (14) days if:
(i) the other party fails to pay any charges by the relevant due date following receipt of the relevant invoice, save to the extent disputed in accordance with clause 3.5, in which case the first party may terminate this Agreement forthwith in writing if the other party does not comply with any determination of the expert under clause 3.5;
(ii) subject to the specific provisions regarding non-payment, the other party commits a material breach of any of the terms of this Agreement, and fails to remedy the breach within 14 days after receipt of written notice to do so;
(iii) either partys licence, consent or other permission to provide its services (in the case of provider) or run telecommunications system (in the case of Keyzone) relevant to such partys performance of its obligations under this Agreement is revoked, expires or is terminated for any reason (and is not immediately replaced);
(iv) the other party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally or a bankruptcy order is made against the other party or a resolution is passed by it for its winding up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction), a court of competent jurisdiction makes an order for its winding-up or dissolution, an administration order is made in relation to it or a receiver is appointed over (or an encumbrance takes possession of or sells) any of its assets, or;
(v) the performance of either partys obligations under this Agreement is suspended for more than 30 days by an Event of Force Majeure;
(vi) Provider consistently generates fraudulent traffic on Keyzone numbers.
Termination or expiry of this Agreement shall not affect any accrued rights or obligations or those intended to be of a continuing nature, such as the payment of amounts due, or to come into force upon termination or expiry.
7. Indemnification, Limitation of Liability and No Warranty
Each Party shall defend, indemnify and hold the other party and its directors, officers,
employees, agents and sub-contractors harmless from and against, any and all suits, actions and proceedings, claims, liabilities, losses, damages costs and expenses, arising directly or indirectly in connection with a violation of law, regulation or order or the breach by it of any of its obligations or representations hereunder, except to the extent such loss, damage, cost or expense is due to any gross negligence or willful misconduct of the Party seeking indemnification hereunder, or its directors, officers, employees, agents or sub-contractors.
Unless caused or contributed to by such Partys gross negligence or willful misconduct,
neither Party shall be liable to the other for any special, indirect, incidental, consequential, or exemplary damages, including without limitation, loss of revenue, profits, customers, clients or goodwill arising in any manner from this Agreement and the performance or nonperformance of business hereunder.
The liability of either Party with respect to the installation, provision, termination,
maintenance, repair, interruption, or restoration, of any Services shall not exceed an amount equal to the charge applicable under this Agreement to the period during which services were affected.
Each Party undertakes no liability whatever whether in contract, tort (including liability for negligence) or otherwise for the acts or omissions of other providers of telecommunication service or equipment or for faults in or failures of such providers service and/or equipment.
Each Party acknowledges that it is technically impracticable to provide service free of faults and free of capacity limitations and the parties do not undertake to do so. Neither Party makes any warranty, express or implied, with respect to the Services. Each Party also makes no express or implied representations or endorsements regarding any merchandise information, products or services provided by others or for any performance hereunder. The Services and associated pricing are provided on an as is and as available basis without warranties of any kind, express or implied, including but not limited to warranties of title and non-infringement.
8. Confidentiality
All information exchanged between the Parties under this Agreement or during the
negotiations preceding this Agreement and relating either to the terms and conditions of this Agreement or any activities contemplated by this Agreement shall be confidential to them, their employees, their subsidiaries and legal advisers and shall not be disclosed to any third party not used for any purpose other than the performance of this Agreement without prior written consent of both Parties, except that such information may be disclosed if required by any government authority or regulatory body.
9. Taxes
Each party is responsible for complying with and paying all taxes or surcharge assessed by government authorities with jurisdiction over its activities. Termination charges in Attachment 1 shall not be reduced by payer to reflect the effect of such taxes.
10. Applicable Law
This Agreement and matters connected with the performance thereof will be construed, interpreted, applied and governed in all respects in accordance with the law of CYPRUS without regard to such jurisdictions conflict of laws provisions.
11. Relationship of the Parties
Each Party will conduct itself under this Agreement as an independent contractor and not as an agent, partner, joint venture or employee of the other Party, and will not bind or attempt to bind the other Party to any contract. Nothing contained in this Agreement will be deemed to form a partnership or joint venture between the Parties.
12. No Third Party Rights
This Agreement is not intended and will not be construed to create any rights or remedies in any parties other than Keyzone and provider and no person will assert any rights as a thirdparty beneficiary hereunder.
13. Entire Agreement.
This Agreement constitutes the entire Agreement between the Parties and shall supersede all previous negotiations, commitments, representations and writings, written or oral. No
custom, industry standard or course of dealing between the Parties shall in any way vary or alter the terms and conditions of this Agreement. This Agreement shall be deemed to have been drafted by both Parties and, in the event of a dispute shall not be construed against either Party. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such determination will not affect any other provision of this Agreement, but such term or provision will be ineffective only to the extent of such invalidity, illegality or unenforceability without invalidating the remainder of such term or provisions or this Agreement.