Exhibit 4.33
SUPPLY AND INSTALLATION AGREEMENT OF VIDEO THROUGH DSL (IPTV) SYSTEM
ENTERED INTO BY AND BETWEEN
MAXCOM TELECOMUNICACIONES S.A. DE C.V.
AND
ALCATEL BELL N.V. AND ALCATEL MEXICO S.A. DE C.V.
DECEMBER, 2006
SUPPLY OF GOODS AND SERVICES AGREEMENT IN CONNECTION WITH VIDEO SOLUTION THROUGH
DSL (IPTV) (HEREINAFTER "THE PROJECT"), ENTERED INTO BY AND BETWEEN MAXCOM
TELECOMUNICACIONES S.A. DE C.V (HEREINAFTER THE "CUSTOMER"), REPRESENTED HEREIN
BY JORGE LOPEZ AGUADO JIMENO, ALCATEL MEXICO S.A. DE C.V. IN CHARGE OF LOCAL
SUPPLIES AND SERVICES (HEREINAFTER "ALCATEL MEXICO"), REPRESENTED HEREIN BY
FEDERICO GUILLEN MONINO, AND ALCATEL BELL N.V., IN CHARGE OF FOREIGN GOODS AND
SOFTWARE UNDER CIF CONDITIONS (HEREINAFTER "BELL"), REPRESENTED HEREIN BY
FEDERICO GUILLEN MONINO, AND WHENEVER "ALCATEL MEXICO" AND "BELL" ARE REFERRED
TO JOINTLY, THEY SHALL BE CALLED "ALCATEL", FORMALIZED IN ACCORDANCE WITH THE
FOLLOWING RECITALS, ANTECEDENTS AND CLAUSES.
RECITALS
I. WHEREAS, CUSTOMER represents through its Agent that:
a) It is a company duly established according to the laws of the United
Mexican States under the original name of Amaritel, S.A. de C.V., as
evidenced in Public Deed No. 86,115 dated February 28, 1996, granted before
attorney Ignacio Soto Borja, Notary Public number 129 for the Federal
District and recorded in the Public Registry of Commerce for the Federal
District under mercantile folio number 210585 on June 11, 1996, and that
the execution of this Agreement comes within its corporate purpose.
b) On February 9, 1999 its corporate name was changed to Maxcom
Telecomunicaciones, S.A. de C.V., as recorded in Public Deed No. 55,145
dated February 9, 1999, granted before attorney Miguel Alessio Robles,
Notary Public number 19 for the Federal District, and recorded in the
Public Registry of Commerce for the Federal District under mercantile folio
number 210585 on March 16, 1999.
c) Its Agent has the capacity and authority to bind the company in terms of
this Agreement, as evidenced in public deed No. 56,631 dated October 11,
2002, granted before Notary Public Number 16 for the Federal District,
attorney Carlos Catano Muro Sandoval, and that such powers have not been
amended, restricted or revoked in any way whatsoever.
d) For the purposes of this Agreement its conventional address is that located
at Guillermo Gonzalez Camarena No. 2000 Col. Centro de Ciudad Santa Fe,
C.P.01210 in Mexico, Federal District;
II. WHEREAS, ALCATEL MEXICO represents through its Agent that:
a) It is a company duly established in accordance with the laws of the United
Mexican States as evidenced in Public Deed No. 57593 dated April 26, 1984,
granted before Notary Public number 3 for Mexico City, Federal District,
Attorney J. Claudio Ibarrola Muro; recorded in the Public Registry of
Property of Cuautitlan Izcalli, State of Mexico, under entry number 40,
volume III, book Y, Commerce Clause;
b) Its Agent has the capacity and authority to bind the company in terms of
this Agreement, as evidenced in public deed No. 120,224 dated November 6,
2003,
granted before Notary Public No. 116 for the Federal District, Attorney
Ignacio Morales Lechuga, and that such powers have not been amended,
restricted or revoked in any way whatsoever;
c) For the purposes of this Agreement its conventional address is that located
at Avenida Ciencia N(degrees) 13, Fraccionamiento Industrial Cuautitlan
Izcalli Estado de Mexico;
d) It has the economic, financial and administrative capacity, as well as the
know-how and specialized personnel, to bind itself in terms of this
Agreement.
III. WHEREAS, ALCATEL BELL represents through its Agent that:
a) It is a company duly established in accordance with the laws of Belgium.
b) Its Agent has the capacity and authority to bind the company in terms of
this Agreement, as evidenced in the document attached to this Agreement;
c) For the purposes of this Agreement its conventional address is that located
at Copernicuslaan 50, 2018 Antwerp, Belgium;
d) It has the economic, financial and administrative capacity, together with
the know-how and specialized personnel, to bind itself in terms of this
Agreement.
IV. NOW, THEREFORE, the Parties represent through their legal representatives
that:
a) They shall commence implementation of the obligations established herein
prior to enter into the terms and conditions agreed by the parties, which
shall serve as grounds for the execution of the Credit Agreement for
purchasing of the Goods (the Financing Terms Sheet).
b) They shall use their best efforts to enter into the Financing Terms Sheet
as soon as possible.
c) In the event that: (i) the advance mentioned in clause 5.6 has not been
paid on December 28, 2006, and that mentioned in clause 5.7 on December 21,
2006 and/or (ii) the Financing Terms Sheet has not been executed and/or
(iii) this Agreement has not been entered into; then the dates of
commitment for Alcatel to deliver the System as established in clause 7 of
the Commercial Agreement and clauses 2.3 and 12.5 of hereof, shall be
extended by means of a written agreement between the parties.
ANTECEDENTS
1. On October 11, 2006, Customer, Alcatel Mexico and Alcatel Bell
formalized a Commercial Agreement providing for the terms and
conditions under which Alcatel Mexico and Alcatel Bell would
supply Customer with a solution allowing the latter to provide
video Through DSL (IPTV) services (hereinafter the "Commercial
Agreement" ).
2. On October 24, 2006, Customer issued certain Purchase Order
number 7000002816 to Alcatel Bell in the amount of
USD$7,812,730.96 (seven million eight hundred and twelve
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thousand seven hundred and thirty 96/100 U.S. dollars), plus the
corresponding Value Added Tax.
3. On October 24, 2006, Customer issued certain Purchase Order
number 7000002817 to Alcatel Bell in the amount of USD$ 2,693,
598.36 (two million six hundred and ninety three thousand five
hundred and ninety eight 36/100 U.S. dollars) plus value added
tax.
CLAUSES
1 DEFINITIONS
1.1 For purposes of this Agreement, the terms hereinbelow listed shall have the
following meanings, and should be thus understood when interpreting this
Agreement, whether used in singular or plural form or in the masculine or
feminine gender:
"ACCEPTANCE" shall have the meaning assigned thereto in the Plan of Record
("POR"), attached to this Agreement as Exhibit 1;
"CERTIFICATE OF ACCEPTANCE" shall have the meaning assigned thereto in the
POR and Clause 11 of this Agreement.
"PROOF OF ACCEPTANCE" shall have the meaning assigned thereto in the POR
and Clause 11;
"AFFILIATE" with respect to either of the Parties shall mean: (I) an entity
which any of the Parties controls, either directly or indirectly, (II) an
entity which controls any of the Parties, either directly or indirectly,
(III) all entities controlled, either directly or indirectly, by any entity
to which item (ii) above refers. For the purposes of the present definition
"control" means possessing, directly or indirectly, the majority votes or
rights for adopting decisions at any time during the term of this
Agreement, though a majority of the shares entitled to vote or the voting
rights;
"BUSINESS DAY" shall mean any day on which the banks are open in Mexico;
"CUSTOMER SITES" shall mean the locations listed in Exhibit 1;
"CUSTOMER PLANT EQUIPMENT OR "CPE" shall mean the set top boxes and DSL
gateway, as defined in Exhibit 1;
"GOODS" shall mean the Equipment, Software and Technical Assistance
comprising the IPTV System, delivery of which shall be the responsibility
of Alcatel hereunder;
"EQUIPMENT" shall mean any equipment, material or components supplied by
Alcatel to Customer under this Agreement, according to the POR;
"SERVICES" shall mean the assistance in implementing the System, as
detailed in the POR;
"SOFTWARE" shall mean the entire programming supplied by Alcatel to
Customer hereunder, as detailed in the POR;
"THIRD PARTY SOFTWARE" shall mean all the programming to be supplied by
Alcatel
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subcontractors and/or Alcatel to Customer under this Agreement;
"OTHER COMPONENT" shall mean all hardware, software or services not
delivered by Alcatel, but which are required as part of Customer's
environment in order for the System to function correctly, and which shall
require Alcatel to integrate and install the System or provide the
Services, as established in Clause 4 hereof and detailed in the POR;
"POR" shall mean the "Plan of Record", as mentioned in Clause 3, as
established in Exhibit 1 hereto;
"FAILURE" shall mean any deviation in System operation from the parameters
established in the POR, and in accordance with Failures A, B and C
hereinafter defined;
"FAILURE A" shall mean that the System has collapsed completely, resulting
in the impossibility of watching videos or using services, i.e. the
impossibility of watching TV (all or substantially all of the subscribers),
inability to purchase and/or see VOD (all or substantially all of the
subscribers), inability to codify VOD and/or transmission services;
inability to register new subscribers to the service; loss of invoicing
functions, inability to access the user application interface (all
subscribers) or violation of DRM security at 10% of unauthorized subscriber
access, affecting the content availability of content suppliers;
"FAILURE B" shall mean any problems affecting the main functions (such as
EPG or VOD), the occasional loss of video or services, i.e. intermittent
restarting of the STB, freezing and lack of intermittent response of the
STB, occasional defects in the user interface (that is, it doesn't work as
requested, for example, purchase of film by the subscriber, one cannot see
a film, tries again and it works correctly), events without input or log
are not being generated, the administrative functions do not work but in
some way there is alternate working availability, (that is, provision to
the subscribers cannot be performed manually, but the automated customer
service system works);
"FAILURE C" shall mean any problems reported affecting specific functions
which are not essential, when the condition of error is not critical for
continuing the operation, such as, for example, minor questions of video
quality (for some subscribers, intermittently), a slow response on some
occasions (for some subscribers, intermittently), the user interface is not
consistent (design, colors, logotypes, navigation) but usable, the logs are
being generated intermittently, or for requesting technical information and
procedures in connection with the product.
"FORCE MAJEURE EVENT" shall have the meaning assigned thereto in Clause 21
hereto;
"COPYRIGHTS" or "IP RIGHTS" shall mean, in any jurisdiction within the
Territory:
(i) patents, registered or unregistered trademarks, service brands,
applications and rights applicable to any thereto, databases,
copyrights (including but not limited to, related rights and
copyrights in software), know-how, designs and inventions;
(ii) licensed rights, agreements, orders or any other issues related to the
rights in item (i) above; and
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(iii) any rights of a nature similar or related to any of the foregoing;
"MS END USER LICENSING AGREEMENT" shall mean the "Software Licensing Terms
of Microsoft/IPTV Servers of Microsoft" to be formalized between Customer
and Microsoft, with respect to use of the MS IPTV Product, as established
in Exhibit 4;
"MS IPTV PRODUCT" shall mean the Microsoft computer programming supplied
under the MS Licensing Terms, required to provide the IP television
services with the System and to be provided by Alcatel Bell;
"MS LICENSING TERMS" shall mean the terms and conditions applicable to the
Microsoft IPTV Product, as established in Clause 19 and the End User
Licensing Agreement;
"COMMERCIAL AGREEMENT" shall mean the agreement executed by the parties on
October 11, 2006, in which the terms and conditions under which the video
through DSL (IPTV) solution, attached hereto as Exhibit 8, would be
provided;
"PROJECT MANAGER" shall mean the managers who have been appointed by the
parties in accordance with Sections 9.2, 9.3 hereof and the POR;
"MEMBERS OF THE PROJECT TEAM" shall mean those individuals appointed by the
Parties to participate in the performance of this Agreement, as listed in
the POR;
"PRICE OF THE PROJECT" shall mean the amount to be paid by Customer in
accordance with this Agreement, as established in Clause 5, and Exhibit 3
hereto;
"SCOPE OF THE PROJECT" shall have the meaning assigned thereto in Clause
2.1 hereto;
"EQUIPMENT OF THE SERVER" shall mean the hardware of the server as defined
in the POR;
"SUB-CONTRACTORS" shall mean the Alcatel sub-Contractors, in accordance
with Clause 25.2.2;
"SOFTWARE SUPPORT AND ASSURANCE AGREEMENT" shall mean the Software Support
and Assurance Agreement to be executed by the Parties in accordance with
the POR;
"SYSTEM" shall mean the IPTV/VoD solution based on the following elements:
Headend, Middleware (Microsoft TV (MSTV platform), Transport Network,
Access Network, Data Network and the User Subscription Handler, as detailed
in the POR;
"TERRITORY" shall mean the geographic area of the Mexican Republic;
"USED EQUIPMENT" shall mean any electric and electronic equipment (I)
supplied by Alcatel to Customer under this Agreement, or any other
equipment which Alcatel replaces with new Alcatel equipment (II) which is
no longer used by Customer or its own end users (end of life), and (III) in
connection with the obligation of Alcatel to gather in accordance with law,
the regulations or national or supranational legislation applicable on the
gathering of electric and electronic equipment waste, or any amendment
thereto.
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"PURCHASE ORDERS" shall mean documents issued by Customer, which shall
include the specifications referred to in Exhibit 3 hereto.
"EQUIPMENT RECYCLING AND/OR WASTE" As per the provisions of Exhibit 8 to
this Agreement, the parties agree that in the event the contents of such
Exhibit are applicable, the expenses generated in their application shall
be for the account of Alcatel.
"PAYMENT TERMS AND CONDITIONS" shall mean the terms and conditions of
payment established herein and agreed upon by the parties.
2 SCOPE OF THE PROJECT
2.1 According to the terms of this Agreement, Alcatel undertakes to supply the
IPTV/VoD solution based on the Microsoft TV (MSTV) platform and other
elements of the System, at the Sites of Customer, which solution consists
of Goods to be incorporated in the network of Customer through the
provision of Services, to the extent defined in the Commercial Agreement,
in order that Customer is able, in turn, to provide IPTV/VoD services in
the Territory to its subscribers. Customer likewise undertakes to accept
the System and pay the price thereof, in accordance with the terms of this
Agreement and Exhibits thereto.
2.2 For implementation of the System, Alcatel Bell shall supply Goods and
Alcatel Mexico shall supply the Services and local supplies.
2.3 In accordance with the terms and conditions of this Agreement and Exhibits
thereto, Alcatel agrees that Customer may offer the IPTV services to its
customers as from March 16, 2007, and shall therefore inform Customer in
writing in connection therewith. In this case Alcatel shall receive as
additional fee compensation 2% (two percent) of the total amount of
Purchase Orders Nos. 7000002816 and 7000002817, that is, the amount of USD
$10,506,329.32 (Ten Million Five Hundred and Six Thousand Three Hundred and
Twenty Nine U.S. Cy.).
2.4 The Parties agree that in the event there is any discrepancy between the
terms and conditions of this Agreement and those established in the
Commercial Agreement, the terms and conditions contained in this Agreement
shall prevail.
3 PLAN OF RECORD (POR)
3.1 The POR is the detailed implementation plan for the display and start-up of
the System, including among other things, a detailed description of the
System.
3.2 Any change to the POR shall be evidenced by written agreement between the
Parties, in accordance with Clause 22.3 hereto.
3.3 The Parties hereto agree that should any unforeseen questions arise in
connection with the display and that Alcatel is not informed on time, or
that Customer demand changes in the configuration of the System and changes
be required in the POR, the foregoing could suppose adjustments such as a
review of the Agreement price established for Goods and Services and the
delivery
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program, among others.
4 OTHER COMPONENTS
4.1 GENERAL
The Parties agree that for purposes of this Clause, any hardware, software
equipment or third party services provided by Alcatel shall not be considered as
Other Components.
4.1.1 Unless otherwise specified in this Agreement, Customer shall be
responsible for acquiring all the hardware, software and/or services
not delivered by Alcatel, but required as part of Customers
environment in order for the System to function properly, and which
Alcatel requires to integrate and install the System or provide the
Services (hereinafter "Other Components"). The Parties agree that
Customer shall be the sole owner, lessee or licensee of any Other
Components used by it and which Alcatel requires in order to comply
with the terms and conditions of this Agreement and the exhibits
thereto, and therefore Customer shall retain the financial and
administrative responsibility for such Other Components.
4.1.2 Customer guarantees that any Other Component, instruction or
information (such as interface information) provided by Customer to
Alcatel shall not result in Alcatel violating any Third Part's
Copyright. Customer should, in any case, indemnify Alcatel for any
claim for Copyright violation which arise from the use thereof by
Alcatel.
4.1.3 The Parties agree that some of the guaranties of the Other
Component's manufacturer or the terms and conditions of the Service
Agreement of such Other Components may be cancelled in the event
Alcatel or any person other than the manufacturer or its authorized
representatives manipulate same. Therefore Alcatel assumes no
responsibility whatsoever for the guarantees of third parties nor for
any consequence which the Goods and/or Services might have on such
guarantees. The Other Components shall be exclusively subject to the
terms and conditions agreed between Customer and such third party
4.1.4 Alcatel shall have no obligation whatsoever to perform any services
should any Other Component fail to satisfy any local regulation.
4.2 INTEGRATION OF THE SYSTEM WITH OTHER COMPONENTS
4.2.1 Alcatel shall engage in reasonable efforts to consult and, as
applicable, cooperate with suppliers of Other Components and with
those which Alcatel must work to comply with the specifications or
requirements of the System, such as manufacturers of set top boxes
which have not been recommended by Alcatel, together with other
independent hardware and software suppliers.
4.2.2 Alcatel may provide access to the interfaces and other records
reasonably required to achieve such inter-operability. The obligations
of Alcatel shall be conditional on the reasonable and timely
cooperation of Customer and of third party suppliers to achieve such
inter-operability. Customer shall make the necessary efforts in order
that such third parties
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cooperate reasonably with Alcatel in the supply of such services.
Alcatel may require that each third party formalize a confidentiality,
license or other agreement reasonably acceptable to both parties in
order to provide such services.
4.2.3 Alcatel may only recommend to Customer the Set Top Boxes and ADSL 2+
modems previously approved by the parties.
5 PROJECT PRICE, TAXES AND PAYMENT CONDITIONS
5.1 The Price of the project has been established in the Commercial Agreement
and is subject to the assumptions, terms and conditions defined in such
Agreement. For Project implementation Customer shall issue the Purchase
Orders mentioned in this Agreement and in the Exhibits thereto.
5.2 Prices for the Goods to be supplied by Alcatel Bell have been established
in the CIF conditions (Incoterms 2000) to be delivered at the port of entry
agreed by the Parties.
5.3 Prices for the Goods and Services of the System shall be based on the
technical suppositions as listed in this Agreement and in the Commercial
Agreement, and shall remain in force during the term of this Agreement. Any
modification to the technical and/or commercial conditions may result in
adjustments to the Price of the Project and, as such, is subject to an
amendment to this Agreement, in accordance with Clause 22.
5.4 The Parties hereto have agreed on the implementation of a credit by Calyon
Francia Bank for payment of the Goods, to be granted by Alcatel Bell.
5.5 All payments shall be made without any withholding or deduction whatsoever,
in U.S. Dollars. Should any equivalent to be determined in Pesos in any
other document, this shall be exclusively for informative purposes.
5.6 Invoicing and payments between Alcatel Mexico and Customer shall be carried
out as follows:
Services, shall be paid in the following manner:
An advance of 15% (fifteen percent) on the Purchase Order, 15 (fifteen)
days following acceptance thereof and after presentation of the respective
invoice. This payment shall be made by means of a wire transfer to the
account of Alcatel Mexico, S.A. de C.V., according to the following
instructions:
Bank: ABN Amro Bank
Location: Park Av. New York N.Y.
Account No. 456060392941
Swift code ABNAUS33.
The remaining 85% (eighty-five percent) of the purchase order shall be paid
at 45 (forty-five) days, counted as from the date of the letter of
acceptance of the System and in accordance with Maxcom invoicing and
payment policies, against the corresponding invoice and by means of a wire
transfer according to the banking instructions detailed above.
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5.7 Invoicing and payments between Alcatel Bell and Customer shall be as
follows:
In the event of Goods, an advance of 15% (fifteen percent) on the Payment
Order addressed to Alcatel Bell, shall be paid 15 (fifteen) days following
the latter's acceptance, and once submited the respective invoice. This
payment shall be made by means of a wire transfer to the account of Alcatel
Bell N.V., as follows:
Bank: ABN Amro Bank
Location: Park Av. New York N.Y.
Account No. 456060351141
Swift code ABNAUS33.
The remaining 85% (eighty-five percent) of the Purchase Order for the
respective Goods shall be paid as per the financing schedule of the Caylon
Francia Bank, following prorrata dispositions of shipments made against
submiting, by Alcatel Bell N.V. to the Calyon Francia Bank, of the invoice,
shipping documents and packing list.
5.8 The Parties hereto agree that the amount established in Clause 2.3 of this
Agreement shall be paid 30 (thirty) days following the presentation date of
the respective invoice.
5.9 Outstanding payments shall be subject to interest as from maturity date
thereof until payment in full of the amount owed to Alcatel based on the
LIBOR INTERBANK RATE FOR EURO/6 MONTHS + 300 BPS( BASE POINTS)]. Without
prejudice to the foregoing, in the event Customer effects no payment on the
due date and/or fails to pay the corresponding amounts within fifteen (15)
days following the formal requirement for payment, Alcatel may suspend the
Services and/or part or all of the deliveries of Equipment or Software
until such time as payment is made. Alcatel shall not be responsible for
delays arising from suspension of the Services and/or the suspension of
Equipment or Software deliveries due to default on payment by Customer.
5.10 The Parties hereto agree that, with respect to the importation transaction,
process, Alcatel Mexico shall pay all taxes, duties and contributions
corresponding to Customer under current applicable law and which can be
made by Alcatel Mexico, and shall also cover expenses incurred by the
customs agent and carriers, and shall therefore be responsible for any
imports.
Once the respective payments have been made, Alcatel Mexico shall submit
invoices to include all proof evidencing the import transaction (Original
waybills, customs agent costs, freight costs, certificates of origin, etc.)
which shall be payable 30 (thirty) days following their filing for review
at Customer's facilities.
Importation by Alcatel Mexico must comply with all requirements of our
country's customs legislation, together with payment of Treasury
contributions incurred during the importation process of merchandise.
The obligation of Alcatel Mexico in Customer's import operations must apply
correctly in each case the certificates of origin of the equipment, customs
tariffs, letters of no-commercialization, NOMs (if applicable) sectorial
registers (if applicable), descriptions of the equipment and all
documentation which may be required for the due entering the country of the
equipment and/or software.
The following issues shall be considered:
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- Validation and use of the correct tariff classifications
- Filing of a Certificate of Origin ( if applicable )
- Commercial invoice
- Packing list
- Series numbers
- Original bill of lading
- Original airwaybill ( if by air ) or Letter of Carriage ( if by
land )
- Documents verifying a breakdown of Customs costs and operating
expenses.
- Letters of no-commercialization and/or translation letters as
necessary, which should be issued by Alcatel Mexico and delivered
to Customer for authorization by the legal representative.
- Advising by Alcatel Mexico whether merchandise requires sectorial
registration in order to process it in due course, in which case
the supporting and resolving intervention of Alcatel Mexico
before the Customs authorities shall be necessary in order for
Customer to obtain such sectorial registration (as applicable)
In the event Treasury and Customs authorities find any errors in the
importation process, whether a wrong tariff classification, the misuse of
Certificates of Origin, erroneous descriptions, etc., within the bill of
lading, Alcatel Mexico shall be obligated to clarify, resolve and pay such
authorities and hold Customer harmless, without any charge thereof to
Customer.
Alcatel Bell shall provide Alcatel Mexico all the correct documentation for
the importation process. Delays arising due to the lack of documentation
for entering Mexico shall be the full responsibility of Alcatel Mexico,
without these expenses understood as delays, storage, etc., being payable
by Customer.
Likewise, due to the fact that Alcatel Bell provides the CIF conditions in
accordance with the Incoterms 2000 definition of the International Chamber
of Commerce as regards equipment, Alcatel Mexico shall provide that prices
of importation services to be supplied in national territory shall be DDP,
in accordance with the Incoterms 2000, providing that Alcatel Mexico shall
effect the entire entering process on behalf of Customer and provide
insurance for the merchandise until this is delivered at Customer's
facilities indicated by the latter, and therefore the risk of loss shall be
covered up to delivery at the final destination.
5.11 Should either of the Parties be obligated to pay directly any tax
corresponding to the other under applicable legislation and this Agreement,
such Party undertakes to reimburse such taxes in full including the
expenses, duties and other taxes resulting from such reimbursement in the
same currency used by the former, within 30 (thirty) days following the
payment by the other Party upon presentation of evidence thereof.
5.12 In the event that, subsequent to execution of this Agreement, a change in
the law, regulations or decree from a competent authority implies
additional costs for Alcatel as regards supply of the Goods and/or
Services, or in conection with the performance of any work or of any
temporary or urgent work, Customer shall assume responsibility for and pay
such expenses. The Parties shall meet for the purpose of examining, in good
faith, the possibility of mitigating the consequences of such change in
legislation on the implementation of the
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Agreement.
6 DELIVERY AND TRANSFER OF OWNERSHIP.
6.1 The Goods of the Project shall be delivered CIP according to Incoterms 2000
of the International Chamber of Commerce.
6.2 Unless otherwise resolved in writing, the ownership of the Goods shall pass
to Customer upon termination of the respective Tests of Acceptance, in
accordance with the guidelines established in the POR.
7 COOPERATION
7.1 Supplying of the System shall require active and continuous cooperation
between Alcatel and Customer. The Parties shall implement a work team with
qualified members and the necessary experience, providing same with
sufficient information on this Project in order that, if necessary, they
may supply all the information which the Parties may require in connection
with the System.
7.2 The Parties agree that the POR and/or the Services to be rendered may
include counseling and recommendations. All decisions in connection with
the implementation of such counseling and recommendations shall be adopted
in accordance with Clause 22.3 hereof.
7.3 In order for Alcatel to be able to comply with its obligations under this
Agreement satisfactorily, Customer shall collaborate in all stages of the
Project.
7.4 Customer shall deliver to Alcatel all materials and information which the
latter may reasonably require at any time as specified in this Agreement,
or those others required in order for Alcatel to perform its obligations
correctly. Customer shall ensure the exactness and integrity of such
information and shall assume any consequence which may result from inexact
or incomplete information provided to Alcatel.
7.5 The Parties agree that Customer may grant Alcatel a non-exclusive,
non-transferable and free license to use any Works protected by copyright,
author's rights, inventions, patents, computer programs and information
(such as interface information), for the sole purpose of Alcatel complying
with its obligations under this Agreement and, as applicable, ensuring that
its employees and sub-contractors are aware of such information and data,
which shall be maintained under the strictest confidentiality. In the event
that such license is not granted and is required for due compliance with
the System, Alcatel shall not be responsible for implementing same, nor for
any other obligation referred to in this Agreement, therefore no
penalization whatsoever may be applied thereto and it may, at its option,
terminate this Agreement.
7.6 Customer shall provide through its own personnel or ensure the provision
of, the buildings, facilities, equipment, work, services and access thereto
required for Alcatel to access same through its own personnel for
compliance with its obligations. Failure to comply with the provisions of
this Clause may result in the delay of Goods and/or Services. Customer
shall permit Alcatel access as may be required, to inspect the Site of
Customer prior to the installation. Customer shall be responsible for
ensuring that the Site of Customer is ready for installation,
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whether or not Alcatel effects a previous inspection, and notwithstanding
any findings which Alcatel may or may not have informed on such occasion.
7.7 The Parties understand that performance of each one depends on the prompt
and efficient implementation of its responsibilities under this Agreement,
and the opportune decisions and approvals adopted by each in order to
comply with this Agreement.
7.8 On carrying out their obligations hereunder, the Parties shall be entitled
to validate any instruction, authorization, approval or information
received from the other Party through the latter's Project Manager or, as
regards the areas of competence specifically identified by the Project
Manager, any other Member of the Project Team, as the one having the
authority to provide such instruction, authorization, approval or
information in the name of each party hereto, within the area of competence
of such person.
8 ASSUMPTIONS AND DECISIONS
8.1 The assumptions considered for the formalization of this Agreement and,
specifically, the definition of System scope and prices, shall depend on
the exactness of the information provided by the Parties and established in
the Commercial Agreement, together with that included in the POR; therefore
should discrepancies exist in the information provided by Customer, Alcatel
reserves the right to amend the scope and prices of the System.
8.2 The Parties shall mutually provide such documents, reports and other
information required or desirable in order for the other party to verify
any provision established hereunder. Should it be reasonably determined as
a result of such review that any assumption provided by the party
delivering same is inexact in any material aspect, the other Party shall be
advised of the estimated impact of such inexactness. The Parties agree to
provide mutually acceptable alternatives and, as applicable, make any
reasonable adjustment to their obligations, by entering into an agreement
amending this Agreement.
9 PROJECT MANAGEMENT
9.1 Management for implementation of this Agreement shall take place in
accordance with the POR.
9.2 Each Party shall appoint its respective Project Manager, who shall be
responsible for complying with this Agreement insofar as regards the Party
who appointed him, and shall have full authority to adopt technical
decisions.
9.3 Each Party agrees to promptly inform the other Party should the Project
Manager be replaced; however the Parties shall endeavor to maintain their
continuity and not replace any of them without cause. The Parties shall
have a process to enter communication at internal level between Customer
and Alcatel managements, and the Parties hereto any appoint additional
persons of contact should either of the Parties so require.
9.4 In the event any of the Members of either of the teams be unable to
continue supplying the service, the Party concerned shall appoint the new
member and notify the other Party accordingly.
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9.5 The Project Managers appointed by the Parties shall keep such Parties
informed on the progress of System implementation at least once a week.
10 INSTALLATION
10.1 Installation of the System at the Sites of Customer shall be carried out in
accordance with the procedures established in the POR. Customer should in
any case have previously prepared the respective Sites, in accordance with
the POR.
11 PROCEDURE FOR ACCEPTANCE OF THE SYSTEM
11.1 Upon termination of System installation, and in accordance with the timing
program established in the POR, Alcatel shall convene Customer in writing
to effect the Acceptance Tests. The Acceptance Tests shall take place in
accordance with the POR, within the terms therein specified.
11.2 In the absence of any Failure A, or if the number of Failures B does not
exceed 5 (five), the System shall not be rejected, always providing that
Alcatel resolves such defects and deficiencies within 30 (thirty) days
thereof, or within a reasonable term agreed by the Parties.
11.3 In the event of any Failure A, or should the number of Failures B exceed 5
(five), Customer shall address a report to Alcatel listing the Failures and
shall allow a minimum limit of 30 (thirty) days for Alcatel to correct such
Failures. Alcatel shall correct any Failures promptly and again propose the
System for effecting the Acceptance Tests within the term established
therefor, and once the tests are successfully passed, the Certificate of
Acceptance shall be signed and delivered.
Once the Acceptance tests have been made, Customer shall be informed in
writing and shall respond within a term of 7 days, granting the
corresponding acceptance.
11.4 In the event the foregoing does not occur, the System shall be considered
to have been accepted by Customer if (I) Customer, despite having been
previously informed by Alcatel, fails to attend the Acceptance Tests, and
such test is successfully carried out solely by Alcatel (i.e. as described
in clause 11.2), (II) Customer fails to sign the certificate of acceptance
3 (three) days after the Acceptance Tests are successfully concluded, (III)
Customer shall commence "launching the product on the market" of the
services (as defined in the POR), or (IV) should the System fail to pass
the Acceptance Tests once the following have been duly verified:
11.4.1 Failures of the Other Components;
11.4.2 Defective information or data supplied by Customer;
11.4.3 Inadequate operation of the System by Customer;
11.4.4 Any other reason not attributable to Alcatel and/or its
Subcontractors.
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12 PENALTIES FOR DELAY
12.1 In the event of delay in the presentation date scheduled for the System for
the Acceptance Tests, as established in the POR, for reasons attributable
to Alcatel and not for circumstances outside the reasonable control of
Alcatel, then Customer shall be entitled to claim a conventional penalty
equivalent to 0.16% (zero point sixteen percent) of the price of that
portion of the System to be presented for the Acceptance Tests by the last
date referred to in the conditions, by additional Business Days of delay,
up to a maximum of 5% (five percent) of such price.
12.2 In the event of delays originated by any default of Customer, Alcatel shall
be entitled to postpone its compliance in accordance with this Agreement,
for a term equal to that which Customer has incurred in delay.
12.3 The Parties hereto agree that the conventional fines herein established are
considered a preliminary estimate of the potential damages, and Customer is
therefore released from its obligations to verify the occurrence and the
amount thereof. Therefore, the Parties agree that payment of such fines
shall release Alcatel from its liability and shall represent full
compensation for any claim by Customer with respect to any responsibility
of Alcatel. The amount resulting from the fines cannot be deducted from any
amounts owed to Alcatel, and shall be paid by Alcatel to Customer by wire
transfer within 90 (ninety) days following the reaching of an agreement as
to its amount.
12.4 In the event Alcatel fails to pay the fines in acordance with the
provisions of the preceding paragraph, outstanding payments shall be
subject to interest as from maturity date thereof and until full payment
has been received from Alcatel, calculated on the LIBOR ESTABLISHED
INTERBANK AMOUNT OF THE EURO RATE/6 MONTHS + 300 BPS P.A. ( BASE POINTS).
12.5 In the event Customer fails to offer the IPTV services to its customers as
from April 1, 2007, Alcatel shall pay a penalty equal to 0.16% (zero point
sixteen percent) for each day's delay to a maximum of 5% (five percent)
over the total amount of Purchase Orders Nos. 7000002816 and 7000002817,
that is, the amount of USD$10,506,329.32 (Ten Million Five Hundred and Six
Thousand Three Hundred and Twenty-Nine Dollars, 32/100).
13 WARRANTY
13.1 GENERAL PROVISIONS RELATED TO THE WARRANTY
13.1.1 Alcatel guarantees the quality and good working of the System
according to the details specified in the POR, for a period of 12
(twelve) months counted as from its Acceptance.
The special provisions on the warranty for the MS IPTV Product are
established in the MS License.
13.1.2 The repaired or exchanged equipment shall be supplied in accordance
with the procedures applied by the relevant Subcontractor, up to
whether the last to occur of (I) the warranty period for the Equipment
originally supplied, or (II) a period of 6 (six) months as from the
date of the corresponding repair or exchange.
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In the event the System or its essential elements show recurrent
defects of the so-called "Failures A" and "B" in a six month period
within or out of the warranty period, Alcatel shall be obligated to
review the cause of the "Failures A" and "Failures B" which have
presented themselves in the System at no additional cost to Customer,
and undertakes to replace the System components giving rise thereto at
no cost to Customer.
The System components replaced by Alcatel further to the preceding
paragraph shall be guaranteed for 12 (twelve) months, as from the date
of substitution or replacement in the System.
In the event of repaired or replaced equipment, the import and/or
export costs shall be covered by Alcatel.
13.1.3 These warranty obligations shall not be applicable if (I) the
System, or any part thereof undergoes modifications, alterations or
repairs without the authorization of Alcatel, or (II) Customer fails
to comply with its obligations under the warranty provisions, or (III)
any the defects arise as a result of the negligence, abuse, lack of
maintenance, unsuitable handling, storage, operation, interconnection
or installation for any reason not attributable to Alcatel, or (IV)
despite adequate notice of Alcatel, Customer fails to continuously
provide a suitable operative and installation environment,
13.1.4 Alcatel shall inform in writing Customer at least 6 (six) months in
advance, in the event that any component of the System is discontinued
in the market, with the exception of the Other Components.
13.1.5 The Parties hereto represent that the foregoing obligations in
connection with the Alcatel warranty are in line with the mandatory
provisions of applicable law. Therefore, the foregoing constitutes all
the warranty obligations of Alcatel with respect to the System, and
shall be to the entire satisfaction of the responsibilities of Alcatel
as regards defects or breakdowns in the System or any part thereof.
13.2 GENERAL WAIVERS
13.2.1 The products and services provided free of charge shall be supplied
"as they are", with no guaranty whatsoever. Customer agrees that the
provisions of this paragraph as regards free products and services are
reasonable including, among other aspects, that they shall be provided
free of charge in order to grant Customer an opportunity to see
whether they are appropriate for its business, and without full and
complete tests on the part of Alcatel.
13.2.2 Insofar as regards diagnosis of the Failure and correction thereof,
Customer shall deliver the System to Alcatel in such a way that
Alcatel may begin to correct any defects without additional
preliminary work. Customer shall provide reasonable assistance,
including having available reports on Failures, data files, logs and
similar articles with respect to the System, together with the
additional computer devices required to reproduce the conditions
existing at the time Failure arose. Such reasonable assistance shall
be provided to Customer at no cost.
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14 INFORMATION AND TRAINING
14.1 Standard training and information shall be supplied in accordance with this
Agreement and the POR.
14.2 In order for the training to take place, Customer shall pay any traveling
expenses of its agents, which should be previously approved by Customer in
writing.
15 RECYCLING AND/OR DISCARDING OF THE EQUIPMENT
The conditions for recycling and discarding the Equipment applicable to this
Agreement, are provided in Exhibit 6.
16 EXPORT CONTROLS
16.1 The Parties agree to comply with all export control regulations imposed by
the governments of Belgium, Canada and the United States of America.
Customer specifically agrees that the Goods supplied or licensed by Alcatel
hereunder are subject to commercial penalties and to the export control
laws, as well as to the regulations of the United States of America, and
shall not be exported, re-exported, re-transported nor transferred directly
or indirectly, contrary to the orders, law or regulations of the United
States of America.
17 OWNERSHIP AND RIGHT OF USE
17.1 OWNERSHIP
17.1.1 Alcatel shall retain all Copyrights specifically related to the
descriptions, plans, designs and other documents, together with any
methods, patents, know-how and tools (including software) belonging to
Alcatel and/or which Alcatel may have used to develop and provide the
System or to perform the Services, or which Alcatel may have included
in such System. Nothing shall prevent Alcatel from (I) carrying out
same or similar Services, nor from (II) using its know-how, skills and
expertise, nor any idea, know-how and techniques acquired or used in
rendering the Services.
17.1.2 In the event that any invention be implemented by Alcatel in
connection with the performance of this Agreement, it shall be
entitled to file any patent or utility model application on such
invention in its name, at its own expense and in all countries.
In the event that any invention be implemented jointly by the parties
to comply the purpose hereof, the Parties shall agree on any terms and
conditions for its registration before the corresponding authorities.
17.2 SOFTWARE
17.2.1 The copyright for any Software which may be transferred in any way
with the System, including but not limited to computer programs or
modules and related documents, belong to Alcatel or to its licensees.
Alcatel
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grants Customer no right whatsoever over any Software other than that
specifically specified herein. Customer agrees not to remove nor alter
any notice of copyrights appearing in the Software provided hereunder.
17.2.2 Alcatel shall grant Customer an exclusive and non-transferable right
(without the right to sub-license) to load, run, unfold, execute and
store the Software in the form delivered (i.e. object code) in the
System, in accordance with the POR.
17.2.3 Customer shall not be entitled (I) to translate, organize or modify
the Software, or assume for himself the correction of any error
contained therein, (II) to reproduce the Software in whole or in part
in any manner except to make the copies for the loading, sampling,
execution or storage of the Software in accordance with the POR, and
(III) to sublicense or assign the Software.
17.2.4 Should Alcatel deliver a backup copy of the Software to Customer,
such delivery shall in no way be understood as an authorization for
Customer to make additional backup copies.
17.2.5 Customer agrees not to recompile, reverse engineering, nor
disassemble the Software or any part thereof.
17.2.6 Subject to any revelation expressly authorized by Alcatel, Customer
shall maintain the Software as confidential, including, but not
limited to, printed manuals or materials in connection with computer
programs covering such Software and shall ensure that his employees
and any third parties involved in the exploitation of the Software
maintain the confidentiality of such Software.
17.2.7 The information of the user and other information required for the
Software supplied by Alcatel hereunder, may only be used by the
employees of Customer on "as needed" basis for the operation of the
System. Customer shall be entitled to make a reasonable number of
copies solely for the use of such employees, and only for such
purpose.
17.2.8 Any special restriction or requirement for the use of the
Subcontractor Software provided by Alcatel shall be binding on
Customer.
17.3 COPYRIGHT OF THE MS IPTV PRODUCTS.
The copyrights in connection with the MS IPTV Product shall be governed in
Terms of the MS license. In the event of discrepancy between this Clause
and the Terms of the MS license, the latter shall prevail with respect to
the MS IPTV Products.
18 VIOLATION OF COPYRIGHTS
18.1 Subject to the terms and conditions of this Agreement, Alcatel shall
release Customer from any responsibility and defend the Customer against
any claim for violation of copyrights of any third party, always providing
(I) the System has been used in accordance with the POR, (II) the System
has not been amendend without the prior express consent of Alcatel, (III)
the supposed violation is not due to the MS IPTV Product in the copyrights
of any third party which have been
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governed solely by the Terms of the MS license, and (IV) Customer has given
Alcatel prompt notice of the claims filed or threatening actions and has
advised Alcatel of all the relevant documents and information held by
Customer.
18.2 If Customer receives a court order stating that the Equipment or Software
supplied by Alcatel contravenes the copyrights of a third party, Alcatel
may, at its own cost and option: (I) acquire for Customer the right to use
the Equipment or Software in question, (II) or change such Equipment or
Software in such a way that it contravenes no copyright, or (III) should
one of the foregoing options be feasible in reasonable terms and
conditions, Alcatel shall return the defaulting potion of the Equipment or
Software and reimburse the purchase price.
If any of the foregoing options apply, the provisions of insert b) of
clause entitled Effectiveness, Term and Termination shall apply.
18.3 The Goods provided by Subcontractors may be supplied with copyright
violation conditions still more restrictive than those applied by Alcatel.
Customer agrees that, prior notice to Alcatel, such more restrictive
conditions shall be incorporated to this Agreement by reference and shall
be applied to such Goods provided by the Subcontractors. This Clause shall
not be applicable to the MS IPTV Product which is governed solely by the MS
licensing Terms.
18.4 The responsibility for damages suffered by Customer by reason of any claim
by third parties against Customer based on any violation by the MS IPTV
Product of such copyrights of the third party shall be determined by the MS
licensing Terms.
19 SPECIAL CONDITIONS APPLICABLE TO THE MS IPTV PRODUCT
The special conditions applicable to the MS IPTV Products are established
in Exhibit 4 hereof.
20 LIMITATIONS AND/OR EXCLUSIONS OF LIABILITY
20.1 GENERAL
20.1.1 Notwithstanding any other provision to the contrary, neither of the
Parties shall be responsible for any indirect or incidental damage
including, but not limited to, commercial damages, interruption of
business, anticipated loss of business, revenues or profits, loss of
customers, loss of use or loss of data.
20.1.2 Neither of the Parties shall be responsible in any case for loss or
damage suffered by either of them as a result of any default by the
other Party in the implementation of its obligations.
20.1.3 Notwithstanding any other provision, the total responsibility of
Alcatel under this Agreement for direct or indirect damages, together
with the amount resulting from payment of the fines established in
Clause 12.1, shall in no event exceed an amount equal to 10% (ten
percent) of the project Price paid by Customer up to that date.
20.1.4 The responsibility of Alcatel shall end upon termination of this
Agreement.
20.2 SPECIAL PROVISIONS FOR THE MS IPTV PRODUCT
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The responsibilities in respect of the MS IPTV Product shall be governed
exclusively pursuant to the Terms of the MS license.
21 FORCE MAJEURE
21.1 Neither of the Parties shall be responsible for default under this
Agreement, if such default was the result of circumstances beyond its
reasonable control (including but not limited to: strikes or labor
disputes, wars, hostilities or sabotage, epidemics, severe weather
conditions, earthquakes, government actions or omission of Subcontractors
by reason of natural disaster or force majeure), always providing the Party
invoking this Clause has: (I) notified the other Party as soon as possible
of the existence of such circumstances, (II) used its reasonable efforts to
mitigate the consequences of such circumstances, and (III) shall continue
to comply with this Agreement as soon as such circumstances cease to exist.
21.2 If any of such circumstances continue for more than 3 (three) months, the
Parties agree to commence dealings for the purpose of amending this
Agreement.
22 MODIFICATIONS AND WAIVERS
22.1 No provision of this Agreement shall be modified, added to or waived,
except by the written agreement of the Parties.
22.2 The waiver of any right or failure to exercise any action which by law
corresponds to either of the Parties, arising from default hereunder, shall
at no time be considered as a waiver of rights or non-applicability of
subsequent rights.
22.3 The Project Managers of each of the Parties hereto may make changes to (I)
the POR in accordance with the rules therein established, and (II) the
scope of the Maintenance Services in accordance with the rules established
in the POR. Each reviewed POR shall replace the previous one.
23 CONFIDENTIALITY
23.1 Any information, including but not limited to data, business information,
technical information, specifications, drawings, schedules, models,
registers, samples, tools, computer programs and written or oral
information received by any other means (hereinafter referred to as the
"INFORMATION"), provided by either of the Parties to the other, shall
continue to be the property of the informing Party.
23.2 Information received from the informing Party shall be kept under strict
confidentiality by the receiving Party, and shall only be used to comply
with this Agreement. Each Party agrees to adopt all other measures with
respect to its employees who may have access to the information revealed by
the other Party. Confidentiality and restrictions on the use of information
received from the other Party shall not apply to the information (I) which,
at any time its revelation is, or subsequently becomes (without violation
by the receiving Party) of public domain, or (II) which has been known by
the Receiving Party prior to revelation by the informing Party, without
obligation or restriction as such; or (III) if the receiving Party or any
of its Affiliates may evidence that it was developed independently,
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without the benefit of the information received from the informing Party.
23.3 Notwithstanding the foregoing, either of the Parties shall be entitled to
reveal the information received from the informing Party or any other party
to its Subcontractors as far as they need to know same for compliance with
this Agreement, always providing the Subcontractor assumes such
confidentiality obligation.
23.4 This Clause shall continue in force for 5 (five) years following expiry or
termination of this Agreement for any reason whatsoever.
24 EFFECTIVENESS, TERM AND TERMINATION
24.1 EFFECTIVENESS AND TERM
Unless the Parties otherwise agree, no contract nor provision whatsoever shall
come into effect for delivery purposes, until:
- the Parties hereto enter into this Agreement;
- the advance mentioned above has been received;
- approval is obtained from the competent government authorities;
- The Export Financing becomes effective and is available
- Final approval is received from the Belgian financial authorities
24.2 TERMINATION
24.2.1 This Agreement may be terminated by either of the Parties by means
of a notice to the other Party if any of the following events occur:
- In the event of any material default by either of the Parties
(hereinafter the "Defaulting Party") on its contractual
obligations which is not remedied within 45 (forty five) days
counted as from the receipt of written notice from the other
Party stating the nature of the default and asking that it be
remedied, or
- In the event of default on timely payment of any amount owed
under this Agreement, once the respective notice has been made by
the other Party; or
- In the event of Force Majeure having subsisting for 6 (six)
months or more; or
- In the event judicial dissolution proceedings have been
instituted, or any proceedings which may result in judicial
dissolution over all or any part of its company, upon dissolution
or commitment in favor of its creditors or when negotiations have
commenced for this purpose, unless such proceedings have been
resolved within a term of four (4) weeks, or in the event the
Defaulting Party declares a moratorium on the payment of its
debts, or should the Defaulting Party be unable to meet its
financial obligations,
- When the other Party informs the Defaulting Party in writing with
respect to termination of this Agreement, without prejudice to
its other rights according to the Law.
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24.2.2 Additionally, Alcatel may terminate this Agreement, without taking
into consideration the period mentioned in the preceding Clause,
should Customer fail to comply with the Terms and Conditions of the MS
License.
24.2.3 In the event of termination
(a) by Alcatel due to Customer default, as mentioned in Clause 24.2.1
and 24.2.2 above, Customer shall pay Alcatel the price of the
System and Services already delivered and the amounts, should any
exist, which should be paid to Alcatel on the termination date,
including costs and expenses incurred or having an irrevocable
commitment by Alcatel with respect to the System and Services not
yet delivered, or not fully completed on the termination date;
(b) by Customer due to Alcatel default, as mentioned in Clause 24.2
above, Customer may:
- Retain the System and Services already delivered subject to
payment of a suitable price; or
- require from Alcatel reimbursement of each payment made
within 30 (thirty) days following that on which it is
terminated/withdrawn, subject to delivery of the
corresponding credit note from Customer and dismantling and
removing the System from the Site of Customer at the cost of
Alcatel.
25 MISCELLANEOUS
25.1 CONSIDERATIONS ON THE MERGER OF ALCATEL AND LUCENT
The Parties hereto agree that, once the imminent merger between Alcatel and
Lucent has been published, Alcatel undertakes to honor this Agreement and
the Exhibits thereto, and to comply with its obligations thereunder, in
addition to supporting the offered platform, including any elements
supplied. Notwithstanding the foregoing, Alcatel agrees that, if as a
concequence of the merger the Middlewave Microsoft IPTV platform ceases to
be the platform supported by Alcatel, this shall be replaced at its own
cost by its new platform. In the event that the new platform is not
compatible with the Set Top Boxes of the base installed by Customer during
performance of this Agreement, Alcatel shall make the corresponding
integration at no additional cost to Customer.
25.2 ASSIGNMENT AND SUBCONTRACTING
25.2.1 Neither of the Parties may assign any right or obligation whatsoever
without the prior express written consent of the other Party, except
that Alcatel shall be able to assign this Agreement in whole or in
part to any of its Affiliates.
25.2.2 Alcatel shall be able to subcontract all or any part of its
obligations hereunder to any Subcontractor of its choice. In the event
Alcatel enters into such subcontracting, it shall in no way create any
contractual or employer-employee relationship whatsoever between
Customer and any
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Alcatel Subcontractor.
25.2.3 Alcatel shall ensure that the provisions of Clause 22.3 are complied
with by such Subcontractors, with respect to any of the
confidentiality obligations.
25.3 NO PARTNERSHIP BETWEEN THE PARTIES
This Agreement shall create no relationship of association, employment or
co-investment commitment between the Parties.
25.4 COMPLIANCE WITH REGULATIONS AND INDEMNITY
25.4.1 Customer shall comply with all pertinent export laws and regulations
of Mexico, Belgium and the United States, in accordance with Clause
15, in order to ensure that the System or any portion thereof are not
exported directly or indirectly in violation of such laws and
regulations.
25.4.2 Alcatel and Customer shall ensure that the Members of the Project
team comply with the laws and regulations applicable in any country
where it is required to provide the Services, carry out the Acceptance
Tests, train, or to take any action abroad. Employees shall receive
prompt instructions in order to gather the required documentation in
order to comply with obligations where the service is provided.
25.4.3 Should any government authority issue a regulation or instruction
affecting the System or the Services hereunder, the Parties may amend
such system or services in such a way that such regulation or
instruction may be applicable. When Alcatel incurs in any cost,
expenditure or fee arising from such regulations or instruction in
connection with this Agreement, Alcatel shall be entitled to recover
such costs of Customer upon review and authorization by both Parties.
25.4.4 If any provision of this Agreement, for any reason, is considered
unenforceable, illegal or cannot be complied with, then such
unenforceability, illegality or the fact that it cannot be complied
with shall not affect the rest of this agreement and this Agreement
shall be considered as though such provision had never been included.
25.5 APPLICABLE LAW AND DISPUTES
25.5.1 This Agreement shall be interpreted in accordance with Mexican
legislation.
25.5.2 All disputes arising from or related to the execution, performance,
interpretation and termination of this Agreement which cannot be
amicably resolved between the Parties, shall be resolved by means of
arbitration in accordance with the rules of the International Chamber
of Commerce with 3 (three) arbiters appointed in accordance with such
rules, unless the Parties expressly agree on the name of 1 (one)
single arbiter. The arbitration shall take place in Paris. All
procedures shall be carried out in the English language.
25.5.3 Notwithstanding the foregoing, each of the Parties shall be entitled
at any time to request any action to protect its confidential
information and copyrights from a competent court, and the subject
matter of such action,
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shall be excluded from the scope of the arbitration.
25.5.4 Unless otherwise provided herein, each one of the Parties shall be
responsible for any costs and expenses incurred in connection with the
performance of their rights and obligations hereunder.
25.6 SUBSISTENCE
25.6.1 The provisions related to the use and restriction of rights,
perpetual licenses, license owership and transfer, warranties, defense
of copyrights or undue appropriation, limitations of liability,
confidentiality, verification and compliance with any license or
service agreement in which they are incorporated, shall remain in
force despite the expiry, cancellation or termination of this
Agreement. Should Customer order maintenance services, these shall
continue in full force even after this Agreement expires or is
terminated.
25.7 ENTIRE AGREEMENT AND COPIES
25.7.1 This Agreement represents the entire agreement of the Parties as
regards the Project and replaces any previous or simultaneous
communication. Any term and condition containing any purchase order
shall not be applicable. In the event of discrepancy between this
Agreement, the Exhibits thereto, the Commercial Agreement or the POR,
the POR and the Commercial Agreement shall prevail. The Project
Managers shall jointly prepare an application to the management
committee (as defined in the POR), when he decides to amend this
Agreement in line with the POR (amended).
25.7.2 This Agreement having been read and no error, fraud, bad faith or
violence existing, it is signed by the Parties in the City of Mexico,
Federal District, on the 15 (fifteenth) day of December, 2006.
MAXCOM TELECOMUNICACIONES, S.A. ALCATEL MEXICO, S.A. DE C.V.
DE C.V.
- ------------------------------------- ----------------------------------------
REPRESENTED HEREIN BY THE JORGE LOPEZ REPRESENTED HEREIN BY FEDERICO GUILLEN
AGUADO JIMENO MONINO
ALCATEL BELL N.V.
----------------------------------------
REPRESENTED HEREIN BY FEDERICO GUILLEN
MONINO
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EXHIBIT 1:
BY
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EXHIBIT 2:
OFFER - EXECUTIVE SUMMARY
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EXHIBIT 3:
PURCHASE ORDER, PRICE AND PAYMENT OF THE PROJECT
PURCHASE ORDERS
1.1. The parties agree that the Purchase Orders issued by Customer shall
include, and comply with the following requirements:
a) Reference to this Agreement, and to the Purchase Order No.
b) Type, amount and price of the Equipment to be purchased by Customer.
c) Specifications with respect to the place and time of delivery
(Delivery Schedule) (as applicable)
d) Specifications with respect to the packing and transportation
requirements (as applicable)
e) Specifications for the effectiveness of certain conditions (as
applicable)
f) Other Terms and Conditions for the Purchase Order, if any.
1.2. Alcatel shall have 10 (ten) business days as from the date of delivery of
the respective Purchase Order, to verify whether the terms and conditions
referred to therein are established in accordance with the contents hereof.
1.3. In the event that Alcatel has no objection on the terms of the Purchase
Order and accepts such terms as forwarded by Customer, Alcatel shall return the
Purchase Order duly signed to Customer within 15 (fifteen) days following the
date of receipt of the Purchase Order, in which case it shall be understood that
the Purchase Order was accepted by the Parties as from the date it was signed by
Alcatel.
1.4. In the event of any considerations or comments made on the Purchase Order,
Alcatel shall ensure delivery thereof to Customer within 15 (fifteen) business
days from the date of delivery of the Purchase Order. In such event, Customer
shall send a new Purchase Order or, as applicable, the amendments thereto
requested by Alcatel, within 5 (five) days after the requested modification has
been received, it being understood as accepted as from the date it is signed by
Alcatel.
1.5. Each Purchase Order shall come into effect in accordance with the
provisions of this Exhibit, always providing that the following conditions are
complied with:
- The formal Agreement comes into effect;
- Alcatel receives the corresponding advance;
- Bank confirmation on the viability of the Export Credit for the
respective Purchase Order.
- Final approval is obtained from the Belgian Financial
authorities.
- Government authorizations are obtained for the respective
Purchase Order.
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EXHIBIT 4:
MS END USER LICENSE AGREEMENT
The following conditions shall be interpreted together with the License
Agreement, which is attached hereto.
1.1 MS IPTV PRODUCT USE
1.1.1 Customer may copy, install and use the MS IPTV Product in its own
servers and allow Subscribers to access the MS IPTV Product solely for
the purpose of providing IP television services to Customer's IPTV
Devices through Customer's network.
1.1.2 Customer may distribute Software updates to its subscribers in a
remote format in its Network to the IPTV Devices of Customer.
1.1.3 Customer may make a reasonable number of copies of the MS IPTV
Product to test same and as file or backup copies, as long as such use
is internal and in servers which cannot be accessed by the
Subscribers.
1.1.4 Customer may allow its employees and authorized representatives to
use the MS IPTV Product to make demos copies of their IP television
services as long as Customer receives no compensation for such demo
copies. Customer assures that its access to the MS IPTV Product shall
be given solely to authorized employees of Customer, and assumes full
responsibility for any unauthorized use by third parties of the MS
IPTV Product resulting from those demo copies which does not fully
comply with the MS licensing terms.
1.1.5 Customer may copy and use internally any user documentation included
in the MS IPTV Product. Customer may modify, copy and distribute any
information of the user documentation identified by Microsoft for the
exclusive use of Subscribers, as a part of a Subscriber Manual, always
providing the applicable notification of Microsoft copyrights is
included on the first page of any of these manuals and that such use
is in accordance with MS licensing terms.
1.1.6 As provided in the MS end user licensing agreement and only on the
express authorization of Microsoft, Customer may make descriptive
reference to the trademarks of the word Microsoft in a non-stylized
manner in the documentation, advertising and marketing materials,
including web pages, in accordance with the standard guidelines of
Microsoft registered trademarks (available in
www.Microsoft.com/trademarks). Customer is not permitted to use any of
the Microsoft logos without a separate license, and the MS licensing
provisions grant no right whatsoever to Customer on the registered
trademarks, logos or service trademarks of Microsoft.
1.1.7 Following the express consent of Alcatel, Customer can make
descriptive references to the non-stylized word trademarks of Alcatel
in documentation, advertising and marketing materials, including web
pages, in accordance with the registered trademark guidelines of
Alcatel. Customer is not permitted to use any of the Alcatel logos
without a separate license, and the MS licensing terms grant Customer
no right whatsoever over the registered trademarks, logos or service
trademarks of Alcatel.
1.1.8 Except for the limited rights of the MS IPTV Product granted in the
MS
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licensing terms, any rights, ownership and interests with respect to
the MS IPTV Product and ideas, concepts, know-how, techniques,
information, materials and/or preexisting technologies in any form and
excluding any patent, copyright, trade secret and other copyrights
thereof shall remain conferred on Microsoft or its suppliers. Each
Party agrees to execute any suitable document and to take other
actions reasonably requested by the other Party in order to comply
with the purpose of this Clause. Except as previously established in
this Clause, Customer and the latter's personnel shall obtain no
rights for the MS IPTV Product, and Customer agrees not to reveal any
portion of the MS IPTV Product to any third party.
1.2 RESTRICTIONS ON USE
1.2.1 Customer shall not:
(a) Rent, lease, encumber, lend, copy, have available or
distribute the MS IPTV Product except for the use expressly
permitted in the MS licensing terms;
(b) Provide commercial hosting services;
(c) Perform any reverse engineering, decompile, dissemble the MS
IPTV Product, except insofar as applicable law permits
notwithstanding this limitation;
(d) Amend the MS IPTV Product;
(e) Remove, change or cover up any notice of copyright,
registered trademark or any other notice of proprietary
rights appearing in the MS IPTV Product;
(f) Distribute or use the pre-released software obtained from
Alcatel or Microsoft for the purpose of effecting internal
evaluation and tests; or
(g) Provide any service based on, or provide access to, the MS
IPTV Product, to the United States government.
1.2.2 Customer and Alcatel shall comply with all laws and regulations for
controlling exports, both national and international, applicable to
the MS IPTV Product. Such laws contain restrictions on the
destinations, end users and final use.
1.3 COMPLIANCE WITH LICENSING REQUIREMENTS
Customer shall make reasonable efforts in order for employees,
representatives and other individuals having access to the MS IPTV Product
to be informed that such MS IPTV Product is licensed by Microsoft under the
MS licensing terms, and can only be used in accordance with the MS
licensing terms.
1.4 HOW TO PLACE ORDERS AND DELIVER LICENSES
1.4.1 For the first 40,000 users, Customer shall place orders in minimum
blocks of 10,000 licenses, and in minimum blocks of 5,000 licenses for
the following users, as established in Scope of the Work, and Alcatel
shall confirm each order within 3 (three) business days subsequent to
receipt thereof. Delivery shall be performed by means of electronic
transfer and
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the time of delivery shall not exceed 10 (ten) business days as from
the date on which Alcatel confirms the order.
1.4.2 Once Alcatel receives any payment it shall inform Microsoft, and the
latter shall provide a confirmation of license to Customer to show
that the license is in force. Customer can make previous use thereof
prior to receipt of this confirmation of license.
1.4.3 If Customer remakes a delivery due to non-correspondence with the
order, Customer shall be entitled to return the entire delivery at the
cost and risk of Alcatel, and Customer shall have a credit for the
total of such complete delivery, which shall be returned to Customer
if the invoice has already been paid.
1.5 REPORTS AND PAYMENTS OF SUBSCRIBER LICENSES
1.5.1 Prices
The MS IPTV Products are available based on the number of Subscribers
covering the license, as listed in Exhibit 4. Customer may only
purchase licenses in such amounts which are available within the
Project Allotments.
1.5.2 Initial order
The initial order of Customer is described in the POR.
1.5.3 Following orders; number of Subscribers
(a) Customer shall place subsequent orders in accordance with
the terms of the POR.
(b) Customer is responsible for tracking the number of
Subscribers having access to the MS IPTV Services of the MS
IPTV Product.
1.5.4 Payment terms for additional licenses (not included in the Price of
the project).
(a) Alcatel shall invoice Customer following receipt of
Customer's order referred to in this Clause. Customer shall
pay each invoice in full within 30 (thirty) days following
the date thereof.
(b) Payments not received by Alcatel within the agreed term
shall be subject to overdue interest at the rate agreed for
late payments in the Agreement. Customer shall make all
payments by means of a banking or electronic transfer of
funds through a payment agency attaching details of the
electronic transfer, in accordance with the payment
instructions described in Clause 5. Customer agrees to make
such payment, notwithstanding not having received any
payment of its Subscribers.
1.5.5 Reports on use
While this Agreement remains in force, Customer agrees to provide
quarterly reports on use to Alcatel, containing the following
information: (I) the number of Subscribers having access to the MS
IPTV Product during the preceding month; (II) the location of the
servers in which Customer has installed the MS IPTV Product; and
(III), if applicable, the reports on use and the total number of
Subscribers of any Affiliate able to use the MS IPTV Product, in
accordance with a local contract on line with this
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Agreement.
1.6 SERVICES AND SUPPORT
Alcatel is not obligated to provide any service or support not expressly
contemplated in this Agreement or its Exhibits. Any other service or
support which Alcatel may provide shall be agreed as an amendment to the
Agreement. Customer is responsible for providing support directly to its
Subscribers.
1.7 LICENSING RIGHTS UPON TERMINATION OF THE AGREEMENT
Once the Agreement has been terminated, Customer can continue using the MS
IPTV Product and licenses purchased at his own risk. However, the
maintenance services shall also be automatically terminated, and Alcatel
shall suspend any services or support for the MS ITV Product.
1.8 PRODUCT WARRANTY FOR THE MS IPTV PRODUCT
The MS end user licensing agreement shall provide a limited product
warranty for such MS IPTV Product.
1.9 LIMIT OF LIABILITY FOR THE MS IPTV PRODUCT.
1.9.1 The obligations and responsibilities of the Parties with respect to
the MS ITV Product shall be fully and exclusively governed by the MS
licensing terms.
1.9.2 The responsibility of Microsoft with respect to the MS IPTV Product,
is fully governed by the MS end user licensing agreement.
1.10 ASSIGNMENT
Neither Party may assign the MS end user licensing agreement, and neither
of them may assign any right or obligation whatsoever under the MS
licensing terms in connection with the MS IPTV Product, whether by
contract, merger, operation of law, etc., without the prior express consent
of the other Party, which consent shall not be unreasonably withheld. Any
assignment contravening this Clause shall be null and void.
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EXHIBIT 5
RECYCLING AND/OR DISCARDING OF EQUIPMENT
1.1 For any Used Equipment which Alcatel should collect, Customer shall notify
Alcatel and any third party acting on behalf of Alcatel, in writing, of its
intention to return such Used Equipment, and at its own cost:
1.1.1 Shall prepare any Used Equipment to allow its adequate handling and
transport, together with its easy review (for example, to check that
the Used Equipment is complete);
1.1.2 Shall place any Used Equipment at the disposition of Alcatel or of
any third party acting on behalf of Alcatel, at the facilities where
it was delivered to Customer or at a sole loading point for collecting
the equipment. Notwithstanding the foregoing, Alcatel shall reasonably
decide another suitable location at which the Used Equipment can be
placed at the latter's disposition or that of any third party assigned
or acting on behalf of Alcatel;
1.1.3 Shall provide to Alcatel and to any third party assigned by or acting
on behalf of Alcatel together with the Used Equipment, a complete and
detailed packing list describing the type of Used Equipment delivered,
together with any information in connection with such Used Equipment;
1.1.4 Shall release the batteries before placing them in the Used Equipment
at the disposition of Alcatel or any third party acting on behalf of
Alcatel, and ensure suitable disposal and/or recycling in accordance
with applicable law.
1.2 Customer shall be responsible for ensuring compliance with any applicable
provision and recycling regulations for any Equipment which Customer moves
to a country outside the Territory.
1.3 Customer shall be responsible for removing any data or information from the
Used Equipment, and Alcatel shall under no circumstances be considered
responsible for the loss of data or information not eliminated by Customer.
1.4 Customer represents and guarantees that such Used Equipment delivered to
Alcatel or otherwise is not subject to any third party rights or security
interest which prevents Customer from delivering such Equipment. Customer
shall indemnify and release Alcatel from all liability in the event of any
claim by a third party in this respect. The sole responsibility of Customer
shall be to ensure that any Used Equipment is collected from its own
customers and/or end users and to take any steps and obtain the authority
required to comply with the provisions of this Clause.
1.5 Used Equipment shall be delivered by Customer to Alcatel or to any assigned
third party free of charge, and without any compensation whatsoever pending
payment by Alcatel or any assigned third party in this respect.
1.6 Alcatel shall not be obligated to collect any Equipment whatsoever
delivered by Customer which is not Used Equipment (all equipment pertaining
to such group being referred to as "NON-ELIGIBLE EQUIPMENT"). All costs
incurred to collect, handle, transport, return or recycle in any other way,
or in dealing with Non-eligible Equipment, shall be paid by Customer to
Alcatel at the time the corresponding invoice is received.
1.7 Alcatel shall ensure that all the Used Equipment gather by Alcatel or any
assigned third party shall be properly disposed of and/or recycled in
accordance with applicable law and/or the regulations in connection with
the collection of electric and electronic equipment waste and any amendment
thereto.
EXHIBIT 6
COMMERCIAL AGREEMENT
DATE ED. PAGE
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ALL RIGHTS RESERVED. PASSING ON AND COPYING OF THIS DOCUMENT, USE AND
COMMUNICATION OF ITS CONTENTS NOT PERMITTED WITHOUT WRITTEN AUTHORISATION.