Exhibit 10.5
AGREEMENT
BETWEEN:
Teliphone Inc.
a duly constituted business corporation having its head office at:
1080 Beaver Hall, Suite 1555
Montreal, Quebec
H2Z 1S8
(hereinafter the "Organization")
AND:
Northern Communication Services Inc.,
a duly constituted business corporation having its head office at:
230 Alder Street,
Sudbury, Ontario.
P3C 4J2
(hereinafter "Northern")
THE PARTIES AGREE AS FOLLOWS:
1.0 DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
ascribed below:
1.1. "ALI" means Automatic Location Identification, a database feature
that displays, to the PSAP and Remote Agencies, address/location
data with respect to a telephone line from which an Enhanced 9-1-1
call originates.
1.2. "ANI" means Automatic Number Identification, a database feature that
displays the telephone number of the primary exchange service that
originates an Enhanced 9-1-1 call.
1.3. "CERB" means Central Emergency Reporting Bureau, a communication
centre, which is the first point of reception of 9-1-1 calls.
(Sometimes referred to as a Primary PSAP, in other documentation).
1.4. "CRTC" means The Canadian Radio-Television and Telecommunications
Commission.
1.5. "ESZ" means Emergency Service Zone, the geographic area served by a
fire, police or ambulance service.
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1.6. "MSAG" means Master Sheet Address Guide, the database that contains
street names, addresses, routing codes and other data required for
the management of Selecting Routing and Transfer, ALI, and ANI.
1.7. "Remote Agency" means a communication centre to which emergency
calls are transferred from the PSAP, and which will be the Police,
Fire or Ambulance agency, within each ESZ, responsible for
dispatching emergency personnel.
1.8. "PSAP" means Primary Service Answer Point, a communication centre,
which is the first point of reception of 9-1-1 calls. (Sometimes
referred to as a CERB in other documentation).
1.9. "Caller ID." Means the originating callers identification number.
(ten digit PSTN number)
1.10. "Client" Means a subscriber of Organization's services who utilizes
the services of Northern as described herein.
2.0 OBJECT
2.1 In accordance with the terms and conditions herein contained,
Northern and the Organization agree that Northern will provide and
operate 911 caller address verification and call transfer in their
Emergency Services Department for and on behalf of the Organization.
2.2 The Organization shall pay Northern, for providing and operating the
caller address verification in accordance with the rates and charges
as set out in Schedule "A".
2.3 The Organization shall also pay Northern's reasonable costs
associated with this contract for any investigation, inquest, court
appearances, etc. with regards to Client issues at the then current
rates.
2.4 The Organization shall pay the amount due within thirty (30) days of
the invoice date upon receipt of such invoice. On amounts for which
payment has not been received within thirty (30) days after receipt
of a satisfactory invoice, the Organization shall pay interest at
the current rate of interest set by Northern Communications from
time to time.
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3.0 OBLIGATIONS OF NORTHERN
Northern shall:
3.1 Manage and operate an Emergency Services Department, including all
necessary equipment and personnel.
3.2 Provide, in its operation of the Emergency Services Department,
terminal equipment that permits the utilization of "Caller ID."
3.3 Operate the Emergency Services Department, twenty-four (24) hours a
day, seven (7) days a week, 52 weeks a year.
3.4 Provide, during its operation of the department, service for the
hearing and voice impaired.
3.5 Northern will supply its services to Clients of the Organization in
both English and French languages. Northern will also use its best
efforts to provide, whenever reasonably possible, and in response to
a particular 9-1-1 or Fire call, the services of a third party for
the purpose of providing a multi-language interpretation service.
However, Northern does not warrant or represent that this
multi-language service will always be available or capable of
interpreting any particular language and Northern in no way accepts
any liability for the acts or omissions of such a third party nor
for it's unsuccessful attempt to provide interpretation in any
particular instances.
3.6 Retain voice records of all 9-1-1 calls recorded and an electronic
copy of all call detail for one (1) year. Northern is prepared to
provide authorized personnel, certified copies of audio recordings
and/or copies of call detail data, as it directly pertains to the
Organization's 911 operation for the purposes of civil litigation
and/or criminal proceedings. When provided, Northern will retain the
original recordings or records until such proceedings are complete.
3.7 Staff the Emergency Services Department, at a level appropriate to
efficiently handle call lines in a manner suitable for emergency
situations.
3.8 Answer all 9-1-1 calls directed to the department from all VoIP
telephones to which the Organization provides services.
3.9 Utilizing various databases and best reasonable efforts, Northern
shall route and transfer all 9-1-1 calls, to the most appropriate
PSAP or Remote Agency based on the address provided.
3.10 Maintain control of each 9-1-1 call until such call can be
transferred to the appropriate Remote Agency.
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3.11 Provide reports, the frequency and type of which shall be as
mutually determined in consultation with the Organization.
4.0 RESPONSIBILITIES OF THE ORGANISATION
The Organization shall:
4.1 Be responsible for payment for services as referred to in 2.2 of
this agreement.
4.2 Provide to Northern the "last known address" for all Caller ID
numbers that may be routed to Northern as a result of a 911 call.
4.3 Advise Northern of all changes that may occur to the associated
information as provided about the Caller ID numbers during the term
of this Agreement in a format consistent with Northern's
requirements.
5.0 LIMITATION OF LIABILITY
5.1 The Organization and Northern shall, during the term of this
Agreement, maintain sufficient insurance to cover their respective
obligations under this Agreement and shall provide evidence of the
same to the other party or, if either the Organization or Northern
is self-insured, provide to the other party evidence that is
satisfactory to that party that the Organization and/or Northern, as
the case may be, is and will be, at all relevant times, in a
position to face successfully its monetary obligations stemming from
liability under the Agreement.
5.2 The Organization agrees that Northern is not an insurer and that
Northern is not assuming any risk of any damage, loss or injury that
may result upon the failure of a 911 call to get to the intended
party in a timely manner.
5.3 In the event of any loss or damage for any reason whatsoever the
Organization's sources of reimbursement are their own resources or
their property and liability insurers. The failure of a call to get
to it's intended destination in a timely manner, for any reason
whatsoever (including Northern's or its agents' or contractors'
negligence or gross negligence or substantial or fundamental breach
of this agreement), shall not give rise to any liability, for breach
of contract, tort or otherwise on Northern's part except to return
to the Organization payment of a reasonable value of services not
performed fixed at and limited to the return of not more than the
annual service fee in the year in which any such loss occurs.
5.4 Without limiting the generality of the foregoing in no circumstances
shall Northern be responsible for any loss, damage, costs or expense
suffered by the Organization or any person claiming through him on
account of nor does any warranty given by Northern cover any of the
following; (a) any error or omission in doing any act or services
required to be done or provided by The Organization; (b) power
failure, power surges, or variance or failure of telephone
transmission lines or equipment.
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6.0 FORCE MAJEURE
6.1 Northern shall not be held responsible for any damages or delays as
a result of war, terrorist activity, invasions, insurrection,
demonstrations, or as a result of decisions by civilian or military
authorities, fire, flood, strikes and generally as a result of any
event that is beyond Northern's reasonable control.
6.2 Neither party shall be liable for damages caused by delay or failure
to perform its obligations under this Agreement where such delay or
failure is caused by an event beyond its reasonable control. If a
party seeks to excuse itself from its obligations under this
Agreement due to a force majeure event, that party shall immediately
notify the other party of the delay or non-performance, the reason
for such delay or non-performance and the anticipated period of
delay or non-performance.
6.3 In the event that "Remote Agency" refuses the call and/or the caller
is not at the "last known address," Northern shall not be held
responsible for any damages or delays when using their best efforts
to locate the most appropriate Police/Fire/Ambulance agency to route
the call to.
7.0 IMPLEMENTATION
7.1 Northern and the Organization agree that the operation of the
Emergency Services Department shall be carried out pursuant to an
implementation schedule (attached as Schedule B) to be mutually
agreed upon by the parties and which may only be changed from time
to time by written agreement of the parties.
8.0 CONFIDENTIALITY
8.1 Northern and the Organization agree to abide by all applicable
legislation with respect to the protection of privacy in effect from
time to time.
8.2 Both parties agree to use any and all data and information whether
in written, machine readable or other tangible form, or disclosed
orally, that is of value to the disclosing party, is not generally
known to competitors of the disclosing party, and which is
communicated to another party in contemplation of this Agreement
(the "Confidential Information") disclosed to them (the "Recipient")
by the other party (the "Disclosing Party") (a) only for the
purposes of, and in connection with, the performance of their
obligations under this Agreement and, for greater certainty, not use
Confidential Information for competitive purposes; and (b) hold the
Confidential Information in confidence, with at least the same
degree of care with which it protects its own confidential or
proprietary information, and at a minimum in accordance with
reasonably prudent standards. The restrictions in this Agreement on
use and disclosure of Confidential Information shall not apply to
information that: (c) shall become generally known through no act of
the Recipient or is in the public domain or subsequently enters the
public domain other than through unauthorized disclosure by the
Recipient; (d) was disclosed to the Recipient on a non-confidential
basis by a third party having lawful possession and the right to
make such disclosure, who was not under an obligation of confidence
regarding the information, who was not identified to the Recipient
as an agent of the Disclosing Party and provided that the Recipient
would not reasonably expect that such third party had obtained such
information in a confidential manner from the Disclosing Party; (e)
was in the legitimate possession of the Recipient prior to its
disclosure hereunder, as evidenced by appropriate records; (f) is
independently developed by the Recipient in the future without use
of the Confidential Information, as evidenced by appropriate
records; (g) is approved in writing by the Disclosing Party for
release or other use by Recipient according to the terms set out in
such written approval; or (h) upon request for purpose of
regulation, program approval examination, or investigation upon
order by applicable provincial or federal regulatory agencies and
authorities, to the extent required by law or judicial or
administrative process, provided that the Disclosing Party is given
prior written notice of such order or law and given the opportunity
to seek a protective order against such disclosure.
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9.0 DISPUTES
9.1 In the event of disputes between the parties, representatives of
each party agree to meet to resolve the dispute. Failing such
resolution the matter is to be referred to mediation and arbitration
services.
10.0 TERM AND RENEWAL
10.1 This Agreement shall be effective from the 1st day of June, 2005 and
shall run for a term of three (3) years.
10.2 On an annual basis the rate will be adjusted by the Consumer Price
Index (CPI).
10.3 The Organization and Northern agree that at the completion of the
initial term, this contract shall renew itself automatically on the
same terms and conditions.
10.4 Prior to the end of any term, either party to this Agreement may
terminate this Agreement upon ninety (90) days written notice prior
to the commencement of any automatic renewal period. Should a notice
to terminate be given, the Organization shall continue to be
obligated to pay for the cost of the services under this contract to
and including the date of such termination and Northern shall
continue to be responsible to provide the services outlined in this
Agreement.
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11.0 WAIVER
11.1 The failure of any party to this Agreement to enforce at any time
any of the provisions of this Agreement or any of its rights in
respect thereto or to insist upon strict adherence to any term of
this Agreement shall not be considered to be a waiver of such
provision, right or term or in any way to affect the validity of
this Agreement.
11.2 The exercise by any party to this Agreement of any right provided by
this Agreement shall not preclude or prejudice such party from
exercising any other right it may have under this Agreement,
irrespective of any previous action or proceeding taken by it
hereunder.
11.3 Any waiver by any party hereto of the performance of any of the
provisions of this Agreement shall be effective only if in writing
and signed by a duly authorized representative of such party.
12.0 SUCCESSORS AND ASSIGNS
12.1 This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
12.2 Northern and the Organization may assign or contract their
responsibilities as contained in this agreement. Should Northern
assign their responsibilities, they will ensure that the assigned
company provides Organization with equivalent service levels.
Consent of assignment will be required from Organization, whose
consent will not be unreasonably withheld.
12.3 Northern and the Organization shall perform their responsibilities
hereunder in compliance with applicable laws.
13.0 INTERPRETATION
13.1 If any term of this Agreement shall be held to be illegal, invalid
or unenforceable by a court of competent jurisdiction, the remaining
terms shall remain in full force and effect.
13.2 The section headings contained herein are for purposes of
convenience only, and shall not be deemed to constitute a part of
this Agreement or to affect the meaning or interpretation of this
Agreement in any way.
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14.0 NOTICE
14.1 Any notice required pursuant to this Agreement shall be in writing
and delivered personally, faxed or sent by registered mail (with
proper postage) to the following addresses:
Northern Communication Services Inc.
230 Alder Street
Sudbury, ON
P3C 4J2
Teliphone Inc.
1080 Beaver Hall, Suite 1555
Montreal, Quebec
H2Z 1S8
Or to such other addresses either of the parties may indicate in
writing to the other. Any notice given in accordance with this shall
be deemed to have been received upon delivery if delivered
personally, or five (5) days after mailing, or on the Business Day
following the day of facsimile transmission if sent by FAX.
15.0 ENTIRE AGREEMENT
15.1 Except as otherwise stated herein, this Agreement constitutes the
entire agreement of the parties, with respect to the provision and
operation of the Emergency Services Department and supersedes any
previous agreement whether written or verbal. Should any provision,
or any part of any provision, of this Agreement be declared null,
void or inoperative, the remainder of the Agreement shall remain in
full force and effect and shall be interpreted as a complete entity.
16.0 RELATIONSHIP OF THE PARTIES
16.1 The parties hereto do not intend this Agreement or the relationship
established hereunder to constitute a partnership, joint venture,
relationship of franchiser and franchisee, relationship of principal
and agent, or relationship of employer and employee, between
Northern and the Organization or between Northern and any officers,
directors, employees, agents, clients or contractors of the
Organization. The Organization shall have no obligation or authority
to bind Northern or to assume or create any obligation or
responsibility, expressed or implied, on Northern's behalf, or in
its name, nor shall it represent to anyone that it has such power or
authority and vice versa.
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17.0 JURISDICTION
17.1 This Agreement shall be governed by and interpreted under the laws
of the Province of Ontario.
Dated this ____day of ______2005 Dated this ____ day of ________, 2005
Teliphone Northern Communication Services Inc.
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Schedule "A"
Rates & Charges
The charges for the provision of services in this agreement is based on the
following monthly calculation;
The greater of either
A Minimum charge of $500.00
(for service up to 1,000 subscribers counted by individual Caller ID number)
Or
A Minimum charge of $1000.00
(for service from 1,001 subscribers to 5,000 subscribers
counted by individual Caller ID number)
Or
A Minimum charge of $1250.00
(for service from 5,001 subscribers to 15,000 subscribers counted by individual
Caller ID number)An agreed higher volume rate.
Or a cost of $0.10 per subscriber, counted by individual Caller ID number)
Plus all taxes as applicable.
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Schedule "B"
Implementation
Implementation of the VoIP 911 caller address verification and call transfer in
the Northern Emergency Services Department described in this agreement is to be
on or about June 1st, 2005.
This date can be moved forward or back as mutually agreed.
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