XXX XXX   2010




TELECOMMUNICATIONS AGREEMEMT



            Between




 SAXON VOIP WHOLESALE LIMITED




             ...
CONTENTS

CLAUSE
1.Interpretation............................................................................................
This Agreement is dated 18TH June 2009


PARTIES:

(1)        SAXON VoIP WHOLESALE LIMITED is incorporated and registered ...
(a)     The application of the definition of Subsidiary to any company at any time shall apply to the company as it
      ...
1.13   Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal...
3.    INTERCONNECTION


3.1   The Parties shall establish and maintain such initial Points of Connection as are reasonably...
call will be calculated by multiplying the time that the call is connected (rounded to the nearest whole second) by the
  ...
(e)      Any claim made against the Company by a third party for death, personal injury or damage to property
            ...
under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or
     ...
(h)    Extreme adverse weather conditions;

         (i)    Collapse of building structures, failure of plant machinery, m...
16.    FURTHER ASSURANCE


       At its own expense, each party shall and shall use all reasonable endeavours to procure ...
17.6   The Company only may grant security over, or assign by way of security, all or any of its rights under this
       ...
(j)    The other party, being an individual, is the subject of a bankruptcy petition or order; or

         (k)    A credi...
(a)    The existence and terms of this agreement;

         (b)    Any information that would be regarded as confidential ...
(b)    At all times, it is responsible for such Representatives' compliance with the confidentiality obligations set
     ...
23.2   At no time shall maintenance or provisioning activity be carried out by one Party on equipment provided, owned
    ...
shall be entitled to treat each Authorised Person as having full authority to instruct it in connection with the business
...
29.    NOTICE


29.1   Any notice required to be given under this agreement, shall be in writing and shall be delivered pe...
31.2   The rights of the parties to terminate rescind or agree any variation, waiver or settlement under this agreement is...
33.3    If any dispute arises in connection with this agreement, directors or other senior representatives of the parties ...
SCHEDULE 1




                                          POINTS OF CONNECTION




Saxon VoIP Wholesale Limited Switch at:
...
SCHEDULE 2




       Saxon VoIP Wholesale RATES

Our rates will be shared under separate cover.




               XXXX R...
Signed by John Fenton for and on behalf of
Saxon VoIP Wholesale Limited
                                                  ...
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The definitions and rules of interpretation in this clause ...

  1. 1. XXX XXX 2010 TELECOMMUNICATIONS AGREEMEMT Between SAXON VOIP WHOLESALE LIMITED And ??????????????
  2. 2. CONTENTS CLAUSE 1.Interpretation..............................................................................................................................................................................1 2.The Services...............................................................................................................................................................................3 3.Interconnection...........................................................................................................................................................................4 4.Duration......................................................................................................................................................................................4 5.Rates, Billing And Payment.......................................................................................................................................................4 6.Indemnity....................................................................................................................................................................................5 7.Interest........................................................................................................................................................................................6 8.Set-off ........................................................................................................................................................................................6 9.Inadequacy of damages..............................................................................................................................................................6 10.No Waiver................................................................................................................................................................................6 11.Intellectual Property Rights......................................................................................................................................................7 12.Remedies..................................................................................................................................................................................7 13.Force majeure ..........................................................................................................................................................................7 14.Language .................................................................................................................................................................................8 15.No partnership or agency..........................................................................................................................................................8 16.Further assurance......................................................................................................................................................................9 17.Assignment ..............................................................................................................................................................................9 18.Termination............................................................................................................................................................................10 19.Consequences of termination.................................................................................................................................................11 20.Announcements .....................................................................................................................................................................11 21.Confidentiality .......................................................................................................................................................................11 22.Costs and expenses ................................................................................................................................................................13 23.Operations And Maintenance.................................................................................................................................................13 24.Warranties...............................................................................................................................................................................14 25.Authorised instructions...........................................................................................................................................................14 26.Entire agreement ....................................................................................................................................................................15 27.Variation.................................................................................................................................................................................15 28.Severance ...............................................................................................................................................................................15 29.Notice ....................................................................................................................................................................................16 30.Counterparts...........................................................................................................................................................................16 31.Third party rights....................................................................................................................................................................16 32.Governing law and jurisdiction..............................................................................................................................................17 33.Disputes..................................................................................................................................................................................17
  3. 3. This Agreement is dated 18TH June 2009 PARTIES: (1) SAXON VoIP WHOLESALE LIMITED is incorporated and registered in the Gibraltar at Suite 31 Don House 30-38 Main Street Gibraltar with company number : 103092 (the “Customer”). (2) ??????????????????????????? incorporated and registered ??????????????????? with company number ?????????????????????? registered office ??????????????????????????? ??????????????????????????? ??????????????????????????? ?????????????????????? ????? ??????????????????????????? ??????????????????????????? (the “Company”). BACKGROUND A The Company runs and is duly authorised to run telecommunications services. The Customer runs and is duly authorised to run telecommunications systems. B Each Party wishes to obtain from the other Party and the other Party agrees to supply on the terms and conditions of this Agreement wholesale telecommunications services. C The Parties will permit their telecommunications systems to be connected on the terms and conditions of this Agreement for the purpose of obtaining and providing the services as set out in this Agreement. AGREED TERMS 1. INTERPRETATION 1.1 The definitions and rules of interpretation in this clause apply in this agreement. Business Day: a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business. Group: in relation to a company, that company, any company of which it is a Subsidiary (its holding company) and any other Subsidiary of such Holding Company; and each company in a group is a member of the group. Unless the context requires otherwise, the application of the definition of Group to any company at any time shall apply to the company as it is at that time. Services: means the onward transmission of calls to the destinations served by such other Party. Subsidiary: in relation to a company wherever incorporated (a Holding Company), means a "subsidiary" as defined in section 1159 of the UK Companies Act 2006 and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such Holding Company. Unless the context requires otherwise: 1 Saxon VoIP Limited 06/05/2010
  4. 4. (a) The application of the definition of Subsidiary to any company at any time shall apply to the company as it is at that time; and (b) References to Subsidiary are references to a subsidiary of the Company. 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules. 1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 1.6 Words in the singular shall include the plural and vice versa. 1.7 A reference to one gender shall include a reference to the other genders. 1.8 A reference to any party shall include that party's personal representatives, successors or permitted assigns. 1.9 A reference to a statute, statutory provision or subordinated legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts; provided that, as between the parties, no such amendment or re-enactment shall apply for the purposes of this agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party. 1.10 A reference to a statute or statutory provision shall include any subordinate legislation made from time to time under that statute or statutory provision. 1.11 A reference to writing or written includes faxes but not e-mail. 1.12 Documents in agreed form are documents in the form agreed by the parties and initialled by or on behalf of them for identification. 2 Saxon VoIP Limited 06/05/2010
  5. 5. 1.13 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction 1.14 A reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time. 1.15 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule]. 1.16 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. 2. THE SERVICES 2.1 Each Party shall use reasonable endeavours to provide the Services to the other Party from the date the Parties’ systems are connected in accordance with Clause 3 below. 2.1 Any services requested by either Party, which are not initially included in the Services, may be provided by the other Party under the terms of this Agreement upon mutual agreement, in which case a Schedule defining the scope of these additional services shall be deemed to be attached to and form a part of this Agreement. 2.2 Each Party undertakes to use the Services in accordance with any lawful order, direction, consent, specification, designation or determination made by the Director General of Telecommunications, or any other competent regulatory or legal authority. 2.3 Each Party undertakes that it will use reasonable endeavours to ensure that it and/or its customers: (a) Will not use the Services for any improper or unlawful purpose, nor allow others to do so; (b) Will comply with any reasonable instructions issued by the other Party which concern the use of the Services; and (c) Will hold at all relevant times for the duration of this Agreement all appropriate licences to operate telecommunications systems and equipment which are to be connected to the other Party’s network pursuant to this agreement and will ensure that the use of the Services will not lead to any breach of the provisions of any telecommunications licence held by either Party. 3 Saxon VoIP Limited 06/05/2010
  6. 6. 3. INTERCONNECTION 3.1 The Parties shall establish and maintain such initial Points of Connection as are reasonably required for the provision of the Services, as specified in Schedule 1. 3.2 Each Party shall pay all the set-up and ongoing expenses of the interconnect capacity required to bring its traffic to the other Party’s switch via such Points of Connection. 3.3 With regard to forecasting, each Party shall; 2.3.1 Use its reasonable endeavours to provide traffic forecasts to the other Party for capacity across the Point(s) of Connection and to provide such information to the other Party in a timely manner; 2.3.2 Promptly notify the other Party if it believes that it will require extra capacity to be made available for the provision of the Services (whether by the allocation of additional ports on any Switch or of additional fibre links for these arrangements, or by the ordering of additional capacity from any other Operator or otherwise) provided always that the other Party shall be under no obligation to reach agreement in respect of the same. 4. DURATION 4.1 This Agreement shall commence on the date of this Agreement and, subject to the termination rights provided for in Clause 18 herein, shall remain in force for a period of twelve (12) months ("the Initial Period"). 4.2 Subject to Clause 18, this Agreement shall continue in force unless and until terminated by either Party giving to the other at least thirty (30) days’ notice in writing to expire at the end of the Initial Period or at the end of any calendar month thereafter. 5. RATES, BILLING AND PAYMENT 5.1 Each Party agrees to pay the conveyance rates referred to in sub-Clause 5.2 to the other Party in respect of the Services. 5.2 The conveyance rates charged by each Party are set out in Schedule 2 attached hereto. Each Party at its sole discretion may modify its rates at any time by giving written notice to the other. Unless a longer period is stipulated in such notice, such modified rates shall take effect seven (7) days from the date of such notice. 5.3 Charges for the Services shall be calculated by the Party providing them in accordance with the rates set out in Schedule 2 and each Party shall issue an invoice to the other party on a seven (7) day basis for all charges incurred by the other Party not covered by any previous invoice. Charges are for completed calls only. The charges for each 4 Saxon VoIP Limited 06/05/2010
  7. 7. call will be calculated by multiplying the time that the call is connected (rounded to the nearest whole second) by the relevant per minute rate and rounding the results to the nearest whole penny. 5.4 Payment is due within seven (7) days from receipt of the relevant invoice (“Due Date”). If the Company does not receive full payment by the Due Date the Company may, without prejudice to its other rights and remedies, forthwith suspend provision of the Services until full payment is received. The Customer shall be liable for legal fees and any other costs associated with collecting overdue payments from it and interest charges may be added to any past due amounts at the rate of one and one-half percent (1.5%) per month calculated pro rata for each day such charges are outstanding after the Due Date. 5.5 The charges specified in this Agreement are exclusive of value added tax, or any other applicable tax, which, if due and owing, shall be added to the invoice and charged at the then prevailing rate. 5.6 Each Party shall be liable in full for all charges relating to its use of the Services, without deduction for any reason, including without limitation: (a) Any alleged unauthorised or fraudulent use of the Services; (b) Any failure by that Party to recover any sums from any third party; or (c) Any discount or rebates that that Party may decide to give to any third party whether related to the quality or availability of the Services or otherwise. 6. INDEMNITY 6.1 In this clause, a reference to the Company shall include the Company’s subsidiaries, and the provisions of this clause shall be for the benefit of the Company and each such subsidiary, and shall be enforceable by each such subsidiary, in addition to the Company. 6.2 The Customer shall on demand on an after tax basis indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other [reasonable] professional costs and expenses) (each a Claim) suffered or incurred by the Company arising out of or in connection with: (a) Any breach of the warranties contained in clause 24; (b) The Customer's breach or negligent performance or non-performance of this agreement; (c) Any claim made against the Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the provision of the Services; (d) Any claim made against the Company by a third party arising out of or in connection with the provision of the Services to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Customer, its employees, agents or subcontractors; 5 Saxon VoIP Limited 06/05/2010
  8. 8. (e) Any claim made against the Company by a third party for death, personal injury or damage to property arising out of or in connection with defective Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Customer, its employees, agents or subcontractors. 6.3 This indemnity shall apply whether or not the Company has been negligent or at fault. 6.4 If a payment due from the Customer under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Company shall be entitled to receive from the Customer such amounts as shall ensure that the net receipt, after tax, to the Company in respect of the payment is the same as it would have been were the payment not subject to tax. 7. INTEREST 7.1 If Party 2 fails to make any payment due to Party 1 under this agreement by the due date for payment, then, without limiting Party 1's remedies under clause 18, the Company may charge the Customer interest on the overdue amount at the rate of 5% per annum above Barclay’s Bank base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest immediately on demand by the Company. 8. SET-OFF 8.1 The Company may at any time or times, without notice to the Customer, set off any liability of the Customer to the Company against any liability of the Company to the Customer, whether any such liability is present or future, liquidated or un-liquidated, under this agreement or not and irrespective of the currency of its denomination. If the liabilities to be set off are expressed in different currencies, the Company may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Company of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this agreement or otherwise. 9. INADEQUACY OF DAMAGES Without prejudice to any other rights or remedies that the Company may have, the Customer acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Customer. Accordingly, the Company shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement. 10. NO WAIVER 10.1 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other right or remedy and no single or partial exercise of any right or remedy 6 Saxon VoIP Limited 06/05/2010
  9. 9. under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy in respect of the same or any other breach. 11. INTELLECTUAL PROPERTY RIGHTS 11.1 Except as may be expressly agreed in writing between the Parties (under such express terms as are agreed), all trade and service marks, inventions, patents, copyrights, registered designs, design rights and all other intellectual property and intellectual property rights shall be and remain in the ownership of the relevant Party. Nothing herein shall confer or be deemed to confer on either Party expressly, impliedly or otherwise, any rights or licences in the intellectual property of the other 11.2 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. 12. REMEDIES Except as expressly provided in this Agreement, the rights and remedies provided under this agreement does in addition to, and not exclusive of, law provide any rights or remedies. 13. FORCE MAJEURE 13.1 A party, provided that it has complied with the provisions of clause 13.2, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement (and, subject to clause 13.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following: (a) Acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster; (b) War, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; (c) Terrorist attack, civil war, civil commotion or riots; (d) Nuclear, chemical or biological contamination or sonic boom; (e) Voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law); (f) Fire, explosion or accidental damage; (g) Loss at sea; 7 Saxon VoIP Limited 06/05/2010
  10. 10. (h) Extreme adverse weather conditions; (i) Collapse of building structures, failure of plant machinery, machinery, computers or vehicles; (j) Any labour dispute, including but not limited to strikes, industrial action or lockouts; (k) Non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and (l) Interruption or failure of utility service, including but not limited to electric power, gas or water. 13.2 Any party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that: (a) It promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and (b) It could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and (c) It has used all reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible. 13.3 If the Force Majeure Event prevails for a continuous period of more than six months, any party may terminate this agreement by giving 14 day’s written notice to all the other parties. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination. 14. LANGUAGE 14.1 This agreement is drafted in the English language. If this agreement is translated into any other language, the English language text shall prevail. 14.2 Any notice given under or in connection with this agreement shall be in the English language. All other documents provided under or in connection with this agreement shall be in the English language, or accompanied by a certified English translation. If such document is translated into any other language, the English language text shall prevail. 15. NO PARTNERSHIP OR AGENCY Nothing in this agreement is intended to, or shall be deemed to, neither establish any partnership nor joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. 8 Saxon VoIP Limited 06/05/2010
  11. 11. 16. FURTHER ASSURANCE At its own expense, each party shall and shall use all reasonable endeavours to procure that any necessary third party shall promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement. 17. ASSIGNMENT 17.1 Subject to clause 17.3, this agreement is personal to the parties and no party shall, without the prior written consent of the other party, assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with this agreement or any of its rights and obligations under or arising out of this agreement (or any document referred to in it), or purport to do any of the same. No party shall sub-contract or delegate in any manner any or all of its obligations under this agreement to any third party or agent. 17.2 Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person. 17.3 The Company may, without the consent of the other party, assign the benefit of all or any of the other party's obligations, or any benefit it enjoys under this agreement (or any document referred to in the agreement), to a member of its Group. 17.4 No successor or assignee pursuant to clause 17.3 shall enforce this agreement until the succession or assignment has taken place. 17.5 If there is an assignment pursuant to clause 17.3: (a) The non-assigning party may discharge its obligations under this agreement to the assignor until it receives written notice of the assignment; (b) The assignee may enforce this agreement as if it were a party to it, but the assignor shall remain liable for its obligations under this agreement; (c) The liability of the non-assigning party to any assignee cannot be greater than its liability to the original party; (d) Notwithstanding clause 21, the assignor may disclose to a proposed assignee any information in its possession that relates to this agreement and its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment; and (e) Any disclosure pursuant to clause d shall only be made after notice of the identity of the proposed assignee has been given to the other party. 9 Saxon VoIP Limited 06/05/2010
  12. 12. 17.6 The Company only may grant security over, or assign by way of security, all or any of its rights under this agreement (or any document entered into pursuant to this agreement) (Rights) for the purposes of, or in connection with, the financing (whether in whole or in part) by the Company of any of its working capital or other requirements. 18. TERMINATION 18.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may terminate this agreement without liability to the other on giving the other not less than one month’s written notice or immediately (or following such notice period as it sees fit), by giving written notice to the other party if: (a) The other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or (b) The other party commits a material breach of any material term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or (c) The other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or (d) The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or (e) The other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (f) A petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or (g) An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or (h) A floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or (i) A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or 10 Saxon VoIP Limited 06/05/2010
  13. 13. (j) The other party, being an individual, is the subject of a bankruptcy petition or order; or (k) A creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or (l) Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause d to clause k (inclusive); or (m) The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or (n) The other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation. 19. CONSEQUENCES OF TERMINATION 19.1 Except as provided in this agreement, neither party shall have any further obligation to the other under this agreement following its termination. 19.2 The following clauses shall survive termination of this agreement and continue in full force and effect clauses 6 to 12, 21, 22, and 26 to 33 inclusive. 19.3 Termination of this agreement shall not affect any rights, remedies or obligations of the parties that have accrued or become due prior to termination. 20. ANNOUNCEMENTS 20.1 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) except as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction. 21. CONFIDENTIALITY 21.1 The following definitions apply in this clause. Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its Representatives) to the other party and that party's Representatives after the date of this agreement in connection with the provision of Services, concerning: 11 Saxon VoIP Limited 06/05/2010
  14. 14. (a) The existence and terms of this agreement; (b) Any information that would be regarded as confidential by a reasonable business person relating to: (i) The business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and (ii) The operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs) (c) Any information developed by the parties in the course of carrying out this agreement; and (d) Any information detailed in Schedules 1 and 2. 21.2 The term "Confidential Information" does not include any information that: (a) Is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause); or (b) Was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party; or (c) Was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or (d) Was known to the receiving party before the information was disclosed to it by the disclosing party; or (e) The parties agree in writing is not confidential or may be disclosed; or (f) Is developed by or for the receiving party independently of the information disclosed by the disclosing party. 21.3 Each party shall keep the other party's Confidential Information confidential and shall not: (a) Use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or (b) Disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause. 21.4 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that: (a) It informs such Representatives of the confidential nature of the Confidential Information prior to disclosure; and 12 Saxon VoIP Limited 06/05/2010
  15. 15. (b) At all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause. 21.5 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 25.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure. 21.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this clause are granted to the other party, or to be implied from this agreement. 21.7 On termination of this agreement, each party shall: (a) Return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information; (b) Erase all the other party's Confidential Information from its computer systems (to the extent possible); and (c) Certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 18 (termination). 21.8 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information. 22. COSTS AND EXPENSES 22.1 Each party shall pay its own costs and expenses arising in connection with the negotiation, preparation, execution, registration and performance of this agreement (and any documents referred to in it). 23. OPERATIONS AND MAINTENANCE 23.1 Subject to any separate duly executed written agreement, schedule or operations manual agreed between the Parties, neither Party shall be liable in any way for any suspension, interruption, degradation or other fault howsoever arising in connection with the provision of the Services. 13 Saxon VoIP Limited 06/05/2010
  16. 16. 23.2 At no time shall maintenance or provisioning activity be carried out by one Party on equipment provided, owned and operated by the other Party without that Party's prior consent. 23.3 The Parties shall comply with all reasonable requests for access when one Party requires access to the other Party's site in order to maintain its equipment. The Party seeking such access agrees to abide by the instructions of the Party controlling the site and to indemnify that Party against any costs, expenses, loss or damage caused by it while on the site. 24. WARRANTIES 24.1 Each Party shall use reasonable efforts under the circumstances to maintain its overall network quality. The quality of Service provided hereunder shall be consistent with industry standards, government regulations and sound business practices. Save as indicated in this Clause 24 or as agreed between the Parties, each Party excludes all liability for all warranties, conditions and non-fraudulent representations, express or implied (by statute, common law or otherwise) concerning the Service, including but not limited to those relating to the availability, performance, quality or fitness for a particular purpose of the Service. 24.2 The Customer hereby represents and warrants that: (a) It is, as applicable, duly incorporated, established or constituted and validly existing under the laws of the country of such incorporation, establishment or constitution; (b) It has full power, authority and capacity (whether under the terms of any applicable law, its constitution, any applicable trust deed, the or otherwise) properly to enter into and perform its obligations under this Agreement and the transactions it contemplates and to confer on the Company (and to allow the Company to delegate to any Group Company) the authorities given pursuant to this Agreement and that this Agreement will be legally binding upon the Customer; (c) The entry by the Client into this Agreement and the transactions contemplated by it are consistent with all obligations by which the Customer is bound whether arising under any applicable law, its constitution, any contract or any judgement or direction of any court or regulator of competent jurisdiction; and (d) That any information that it has provided the Company in relation to its status, residence and domicile for taxation purposes is complete and correct, and agrees to provide any further information properly required to any competent authority. 25. AUTHORISED INSTRUCTIONS 25.1 The Customer will provide the Company with a certificate or signature list, signed by a duly authorised officer or officers of the Company, designating the officers or employees of the Customer (Authorised Persons) that have authority to act in all respects for and on behalf of the Customer in connection with this Agreement. The Company 14 Saxon VoIP Limited 06/05/2010
  17. 17. shall be entitled to treat each Authorised Person as having full authority to instruct it in connection with the business contemplated by this Agreement. 25.2 Should the Customer wish to remove or add an Authorised Person to the list, it will provide the Company with a revised list in writing signed by at least two Authorised Persons. Until the Company receives the revised list, if shall be entitled to rely upon any notice, instruction, direction or other communication that the Company reasonably believes to have been given by that Authorised Person whether or not the authority of that person has been terminated. 25.3 Instructions shall be given in such manner as the Company and the Customer may agree from time to time. 26. ENTIRE AGREEMENT 26.1 This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. 26.2 Each party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. 26.3 Nothing in this clause shall limit or exclude any liability for fraud. 27. VARIATION No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 28. SEVERANCE 28.1 If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this agreement, and the validity and enforceability of the other provisions of this agreement shall not be affected. 28.2 If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. 15 Saxon VoIP Limited 06/05/2010
  18. 18. 29. NOTICE 29.1 Any notice required to be given under this agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice at its address as set out below: (a) SAXON VoIP WHOLESALE LIMITED. Suite 31 Don House 30-38 Main Street Gibraltar (b) [PARTY2]: …………………………………………………………………………. [CONTACT] [ADDRESS], Or as otherwise specified by the relevant party by notice in writing to each other party. 29.2 Any notice shall be deemed to have been duly received: (a) If delivered personally, when left at the address and for the contact referred to in this clause; or (b) if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or (c) If delivered by commercial courier, on the date and at the time that the courier's delivery receipts is signed. 29.3 A notice is required to be given under this agreement shall not be validly given if sent by e-mail. 29.4 The provisions of this clause 29 shall not apply to the service of any proceedings or other documents in any legal action. 30. COUNTERPARTS This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. 31. THIRD PARTY RIGHTS 31.1 A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999. 16 Saxon VoIP Limited 06/05/2010
  19. 19. 31.2 The rights of the parties to terminate rescind or agree any variation, waiver or settlement under this agreement is not subject to the consent of any person that is not a party to this agreement. 32. GOVERNING LAW AND JURISDICTION 32.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales. 32.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter. 32.3 The Customer irrevocably appoints John Fenton +44 7590 961 646 john.fenton@saxon-voip.com as its agent to receive on its behalf service of any proceedings arising out of or in connection with this agreement. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by the Customer) and shall be valid until such time as the Company has received prior written notice from the Customer that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent the Customer shall forthwith appoint a substitute acceptable to the Company and deliver to the Company the new agent's name 32.4 The Company irrevocably appoints xxx as its agent to receive on its behalf service of any proceedings arising out of or in connection with this agreement. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by the Customer) and shall be valid until such time as the Customer has received prior written notice from the Company that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent or no longer has an address in England or Wales, the Company shall forthwith appoint a substitute acceptable to the Customer and deliver to the Customer the new agent's name, address [and fax number] within England and Wales 33. DISPUTES 33.1 The Parties shall co-operate to investigate promptly any dispute concerning the accuracy of any billing data or as to any other amount payable under this Agreement. The Party raising a dispute shall notify the other Party of any such dispute in writing no later than seven (7) days after receipt of the relevant invoice, providing sufficient information to identify the invoice in question and the grounds of the dispute. If a Party fails to make such a notification within this time period, it shall be deemed to have waived its rights to dispute the relevant invoice. The raising of such a dispute shall in no way affect the liability of the Party raising it to effect payments and it shall be a condition of the other Party’s entering into negotiations regarding any dispute that no sum shall be outstanding under this or any other agreement between the Parties. 33.2 In the event the Parties are unable to reach agreement the dispute will be escalated to executive management level for consideration. 17 Saxon VoIP Limited 06/05/2010
  20. 20. 33.3 If any dispute arises in connection with this agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within seven (7) days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. 33.4 If any dispute arises in connection with this agreement, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The mediation will take place in London and the language of the mediation will be English. The Mediation Agreement referred to in the Model Procedure shall be governed by, and construed and take effect in accordance with the substantive law of England and Wales. 33.5 The courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the mediation. If the dispute is not settled by mediation within 30 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to and finally resolved by arbitration. CEDR shall be the appointing body and administer the arbitration. CEDR shall apply the UNCITRAL rules in force at the time the arbitration is initiated. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be three and the seat or legal place of arbitration shall be London, England. 33.6 No party may commence any arbitration in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. This Agreement has been entered into on the XXth XXXX 2010. 18 Saxon VoIP Limited 06/05/2010
  21. 21. SCHEDULE 1 POINTS OF CONNECTION Saxon VoIP Wholesale Limited Switch at: XXXXX Switch at: 19 Saxon VoIP Limited 06/05/2010
  22. 22. SCHEDULE 2 Saxon VoIP Wholesale RATES Our rates will be shared under separate cover. XXXX RATES 20 Saxon VoIP Limited 06/05/2010
  23. 23. Signed by John Fenton for and on behalf of Saxon VoIP Wholesale Limited ....................................... Director Signed by [NAME OF DIRECTOR] for and on behalf of [NAME OF PARTY 2] ....................................... Director 21 Saxon VoIP Limited 06/05/2010

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