Exhibit 2.1
This agreement is made and entered into on this 23rd day of August 2005
By and between
TELIPHONE INC., a company duly incorporated and existing under the laws of
Canada with its registered office at 1080 Beaver Hall, Suite 1555, Montreal,
Quebec, CANADA H2Z 1S8; (hereinafter referred to as "TeliPhone", which shall
include all its permitted assigns, successors and persons nominated or appointed
by TeliPhone to inter alia deal or supervise the execution of this contract)
And
PODAR INFOTECH LIMITED, company duly incorporated and existing under the
Companies Act, 1956 as amended, with its registered office at Podar Chambers, S.
A. Brelvi Road, 4th Floor, Fort, Mumbai - 400 001, INDIA; (hereinafter referred
to as "Podar", which shall include all its permitted assigns, successors and
persons nominated or appointed by Podar to inter alia deal or supervise the
execution of this contract).
"TeliPhone" and "Podar" are individually referred to as "a Party" and
collectively referred as "the Parties".
WHEREAS
1. TeliPhone is in the business of telecommunications with a specialty
in Voice over Internet Protocol (VoIP).
2. Podar poses business and technical skills to develop and market
products and services currently available and yet to be developed by
TeliPhone.
NOW THEREFORE, in consideration of the mutual covenants herein contained, and
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the Parties execute this Agreement as follows:
DEFINITIONS AND INTEPRETATION:
1. The Annexure attached thereto constitutes a part of this Agreement.
2. Words denoting the singular number only shall include the plural
number and vice versa. Words denoting the masculine gender only
shall include the female or neuter gender and vice versa.
3. The captions / headings in this Agreement are for convenience only
and shall not be used in any way to interpret the provisions of this
Agreement.
4. Product in this agreement means existing as well as upgrades and
modernizations:
a. Wireless VoIP handset
b. VoIP Adapter
c. USB VoIP phone
5. Services shall mean VoIP traffic termination, support, etc.
6. Sales target set for India for Podar is 4000 activations within 12
months of execution of this agreement.
TERRITORY:
TeliPhone hereby grants exclusive marketing and distribution rights for
TeliPhone Products and Services to Podar for India, China, Sri Lanka, Russia and
UAE. All enquiries received by TeliPhone from the specified territory shall be
redirected to Podar. Podar and TeliPhone may from time to time add territories
to this agreement.
TERMS OF AGREEMENT:
1. This agreement shall be for five (5) years from the date of
execution of this agreement; which may be renewed for a further
period of five (5) years with mutual consent.
2. Either party may terminate the agreement any time by providing six
(6) months written notice of intention to terminate to the other
party with legitimate and valid reasoning. Failing which the party
will have to duly compensate the other party for all losses
financially, as agreed mutually.
INSPECTION, ACCEPTANCE AND CERTIFICATION:
1. The Product delivered by TeliPhone will be inspected, tested and
certified as required by Podar. The acceptance process must be
agreed to between both the parties prior to shipping of the Product.
2. TeliPhone shall provide to Podar technical literature, laboratory
test reports and FCC approvals and any other testing reports for the
Products upon request by Podar.
3. TeliPhone shall at all times maintain effective programs for defect
detection and for corrective and preventive actions. Should
TeliPhone or Podar detect a problem that may affect the quality or
reliability of the Product, TeliPhone shall within three (3) days
notify Podar and vice versa of:
a. The nature and extent of the problem,
b. Any corrective action planned or taken, and the estimated time
to normal state, and
c. Any recommendations regarding Product already delivered to
Podar.
In the event the Product requirements and specifications set out or
referred to herein are not met, Podar may request TeliPhone to take
immediate corrective and preventive actions. Upon such requests,
TeliPhone shall submit a preliminary response within three (3) days
and, within one (1) week, a place for the corrective and preventive
actions to be taken.
4. TeliPhone shall assign a project personnel working with Podar on a
regular basis to maintain as effect program on defect detection and
problem management, to conduct Product roadmap reviews and to follow
up on project deployments.
PRODUCT DOCUMENTATION:
TeliPhone shall provide a complete set of the applicable technical publications
and illustrations and user documentation which TeliPhone ships with the
corresponding Products to Podar in hardcopy format.
PACKAGING AND LABELING:
Podar is entitled to place Podar's certified marking on the Products. Both
parties shall review from time to time, during the term of the agreement,
private labeling opportunity for the Products within the terms and conditions of
this agreement.
WARRANTY:
1. TeliPhone is obligated to provide service support for the Product
and Services agreed in this agreement, during the initial warranty
period and thereafter on terms agreed to with Podar.
2. TeliPhone warrants that the Product will perform in accordance with
the specifications and will be free from defects in design,
materials and workmanship provided that the Product have not been
subject to misuse or neglect by Podar or the Product have not been
altered or repaired unless such change was anticipated or made by
TeliPhone or in accordance with TeliPhone's instructions or
approval.
3. Podar shall bear the cost of sending the faulty product to
TeliPhone/Manufacturer and TeliPhone/Manufacturer shall bear the
cost of sending the same back to Podar after necessary repairs or
replacement if the defective product is under warranty period of
twelve (12) months starting from the date of Product installation at
customer site. Should TeliPhone/Manufacturer not perform its
obligations to remedy the defect in a contractual manner, TeliPhone
shall always be responsible for its default and Podar is entitled to
pursue any applicable remedies under this agreement.
TeliPhone/Manufacturer shall offer extended warranty at an
additional cost to be negotiated.
4. A Product or part thereof which ceases to operate and therefore are
found not to fulfil the specifications within thirty (30) days from
delivery to Podar or to Podar's customer shall be classified as
defective on arrival. In such case, TeliPhone shall reimburse Podar
for defective Product. The reimbursement shall be at TeliPhone's
option be new Product or pecuniary compensation.
5. The warranty period of the repaired Product, in and out of warranty,
shall be of the remaining time of the original warranty period or
for ninety (90) days from the date when the repaired Product is
accessible to customer.
DUTIES AND OBLIGATIONS OF TELIPHONE:
1. Access to all available TeliPhone products and services for sale to
the defined territories.
2. Access to the TeliPhone technical network including VoIP services
from its Montreal server and/or other servers/locations yet to be
established.
3. Voice termination services whether through TeliPhone Products or
other companies Podar may identify that require voice termination.
4. Maintenance of a voice and quality of service necessary to maintain
customer satisfaction with such quality of service standards to be
developed by the parties within one month of the execution of this
agreement.
5. Technical support between Podar technicians and TeliPhone.
6. As advised by TeliPhone; Podar will send the faulty product(s)
directly to Manufacturer. TeliPhone will ensure that the
manufacturer does the needful and Podar gets the repaired Product or
replacement.
7. TeliPhone permits Podar the use of TeliPhone logo, brand name and
website for promotional activities be it on their website or print
media or any other publicity or marketing means.
8. TeliPhone give Podar right to finalize the price the solution in the
specified territory.
9. If required, a web-based e-commerce system.
10. Access to a Podar "back-office" on the TeliPhone web site which will
provide Podar with real-time information on its activations and
traffic.
11. Access to all related software necessary for provisioning VoIP
telephones or VoIP-related hardware.
12. Technical training of Podar personnel in the TeliPhone facility in
Montreal.
13. Providing Podar with its experience and knowledge in the area of
market development.
DUTIES AND OBLIGATIONS OF PODAR:
1. Meeting sales targets by territory as defined by this agreement.
2. Developing and implementing a marketing plan for its territories
including appropriate sales and distribution channels.
3. Local technical and after sales support.
4. Purchase of inventory.
5. Collection of subscription, long distance and other revenue from its
subscribers.
6. Timely remittance of agreed fees to TeliPhone.
7. Meeting all local regulatory requirements by territory.
8. Will assist to conduct presentations.
9. Will assist in liaisoning and coordination with companies in the
above mentioned territory.
BOTH PARTIES WILL BE RESPONSIBLE FOR:
1. Cooperating for technical integration of any non- TeliPhone
technology
2. Working diligently towards the successful development of the objects
of this agreement
DISPUTE RESOLUTION & ARBITRATION:
1. This agreement is governed by, and shall be construed in accordance
with the International Laws.
2. Should any dispute arise out of or in connection with this
agreement, both the parties shall work in good faith to try to
resolve the dispute within fifteen (15) days from the date a party
first gives notice that a dispute has occurred.
3. If the contact persons fail to reach to an understanding on the
dispute within fifteen (15) days, the dispute shall be referred to
more senior persons with in the respective companies who shall try
to resolve the dispute within a further thirty (30) day period. If
no resolution is found then TeliPhone and/or Podar singly or jointly
as the case may be is entitled to commence the arbitration
proceedings.
4. In case the matter cannot be settled amicably, the matter will be
referred to the London Court of International Arbitration or any
similar reputed organization in United Kingdom and its decision will
be binding on both the parties.
FORCE MAJEURE:
Neither Party shall be liable for failure to perform in whole or in material
part, its obligations under this Agreement if such failure is caused by any
event not reasonably within the control of the affected Party, including without
limitation, by fire, flood typhoon, earthquake, explosion, strikes labor
troubles or other industrial disturbances, unavoidable accidents, war (declared
or undeclared) acts of terrorism, sabotage, embargoes, blockage, acts of
Governmental Authorities, riots, insurrections, or any other cause beyond the
control of the Parties. The affected Party shall resume performance as soon as
practicable after the event of Force Majeure has ceased.
SUCCESSORS AND ASSIGNS:
This Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their legal representatives, successors and assigns and no third
party may claim any right under the same.
NOTICES:
Any notice to be served by either Party upon the other must be in English
language and shall be deemed to have been duly given and received one business
day after delivery by facsimile transmission with acknowledgement of
transmission receipt or by overnight courier service or two business days after
date of mailing by pre-paid registered mail or seven business days after date of
mailing by pre-paid registered air-mail at the addresses written below or as
amended by written notice from the respective Party.
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TeliPhone Podar
1080 Beaver Hall Podar Infotech Limited
Suite 1555 Podar Chambers, S. A. Brelvi
Montreal, Quebec Road,
Canada H2Z 1S8 4th Floor, Fort,
Mumbai - 400 001
India
Attn: Mr. George Metrakos
Title: President Attn: Mr. Yash Mehrotra
Tel: +1 514-313-6010 Title: Dy. Managing
Fax: +1 514-313-6001 Director
Email: gmetrakos@teliphone.ca Tel: + 91 (22) 22664070
Fax: + 91 (22) 22663845
Email: yash@podarenterprise.com
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AMENDMENTS:
No amendment to this agreement shall be valid or binding unless set forth in
writing and duly executed by both TeliPhone and Podar.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
and year first above written.
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TeliPhone Podar
Mr. George Metrakos Mr. Yash Mehrotra
President Dy. Managing Director
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Witness:
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