CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
Exhibit
10.1
CONTRACT
BETWEEN
VIZZAVI
ESPAÑA, S.L.
AND
ELEPHANT TALK
COMMUNICATION HOLDING, AG
FOR THE SUPPLY OF
OPERATION AND TECHNICAL
SERVICES THROUGH A
COMPREHENSIVE TECHNOLOGICAL
PLATFORM
20 MAY
2009
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
ASSEMBLED
ON THE ONE PART,
MR. JAIME BUSTILLO
VELASCO, of
full legal age and with address for these purposes at Avenida de
Europa 1, Parque Empresarial de La Moraleja, 28108 Alcobendas,
Madrid, acting as proxy in the name and on behalf of the trading
corporation VIZZAVI ESPAÑA, S.L. (hereinafter,
VIZZAVI), with Tax Identification Code No. B-82896119. He is
empowered by virtue of the power of attorney executed before the
Notary of Madrid, Mr. Manuel Rodríguez Marín, on 9
October 2008, with number 2440 in his minute of record, which is
duly registered in the Mercantile Register of Madrid, Volume
19,772, Folio 192, Section 8, Page M-272203, 33
rd
entry.
AND ON THE OTHER,
MR. STEVEN PAUL KAREL MARIE VAN DER
VELDEN , of
full legal age and with address for these purposes at Gartenstrasse
105, CH-4052 Basel, Switzerland, acting as proxy in the name and on
behalf of the trading corporation ELEPHANT TALK COMMUNICATION
HOLDING, A.G. (hereinafter, ELEPHANT TALK), with registration
number CH 270.3.013.519-0, which representation he holds by virtue
of the powers granted on 17 May 2009 by a resolution of the
Company.
Both Parties appearing declare that
they have sufficient legal capacity to enter into a contract and
bind themselves, both personally and in the capacity and
representation in which they intervene, which they mutually
recognize and undertake not to challenge, and, with their mutual
consent
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
THEY
DECLARE
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That VIZZAVI is a company
authorized by the sectorial telecommunications legislation to provide
complete Virtual Mobile Operator (VMO) electronic communications
services by virtue of a Resolution of the Telecommunications Market
Commission dated 18 August 2008.
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That ELEPHANT TALK is an
international provider of electronic communications
services for Virtual Mobile Operators through the rendering of
operation and technical support services over technological
platforms.
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That VIZZAVI, in the development of
its electronic communications activity, is interested in hiring
from ELEPHANT TALK and ELEPHANT TALK is interested in providing to
VIZZAVI certain operation and technical support services over a
comprehensive technological platform in the terms and conditions
established in this Contract and the Annexes
hereto.
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That by virtue of what is set down
in the foregoing declarations, the Parties have reached an
agreement which they formalize in accordance with the
following
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
CLAUSES
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The object of this Contract is the
rendering by ELEPHANT TALK to VIZZAVI of the operation and
technical support services (hereinafter, “the
services”) described in Annexes A, B1, B2, C, D and E of this
Contract, in the terms and conditions established in this document
and its Annexes (hereinafter, referred to jointly as “the
Contract”).
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The
services shall be rendered by ELEPHANT TALK to VIZZAVI over
the technological platform described in Annex C of this
Contract.
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This Contract is of an exclusive
nature, pursuant to the provisions of the following
clauses:
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1.3.1
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ELEPHANT TALK may not render in
Spain the operation and technical support services under this
Contract either directly or indirectly to any operator other than
VIZZAVI (with or without its own telecommunications network) that
is a direct or indirect competitor of VIZZAVI in the Spanish
electronic communications market, within a *** counting from the
Contract’s execution, as per the obligations laid down in
Clause 3.3, except with the express authorization of
VIZZAVI.
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Likewise, VIZZAVI may not contract
the operation and technical support services that are the object of
this Contract with any other comprehensive technological platform
other than ELEPHANT TALK, whilst ELEPHANT TALK is not authorized to
render such services to other operators within the framework of
what is established in Clause 1.3.1 and in accordance with the
obligation laid down in Clause 3.6, except with the express
authorization of ELEPHANT TALK.
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The numbering, codes and other
technical parameters allocated to VIZZAVI by the competent bodies
(MSISDN, IMSI, short numbering codes, ICC, etc.) and which, as and
when applicable, are managed by ELEPHANT TALK in the performance of
this Contract, shall remain under the control of
VIZZAVI.
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STRUCTURE OF THE CONTRACT
2
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This Contract is structured in
accordance with the following schematic:
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2.1.
1
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Main Body: It includes the Contract’s
essential principles and the elements that regulate the relations
between the Parties.
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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Annex A – Services for the End
Customers of the Virtual Mobile Operators (VMOs) of
VIZZAVI
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Annex B1 – Support Services
for the Virtual Mobile Operators (VMOs) of VIZZAVI
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Annex B2
– Support Services for VIZZAVI operations
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Annex C
– Technical Annex
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Annex D
– Economic Terms and Conditions
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Annex E
– Capabilities and Undertakings relating to Project
Management
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Annex F
– Communications and Official Contact List
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Annex G
– Data Protection
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Annex H
– Security and Fraud
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Annex I
– Ethical Purchases
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Annex J
– General Health & Risk-Prevention
Conditions
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Annex K
– Requirements for Compliance with the Sarbanes-Oxley
Rules
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2.1.14.1 Fiscal
Certificate
2.1.14.2 Labour
Certificate
2.1.14.3 Copy of Insurance
Policy
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Annex M
– Definitions 2.1.16 Annex N –
Environment
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The
Annexes may have their own associated Appendices, if so decided
with the mutual consent of the Parties.
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Both Parties explicitly acknowledge
that all the elements comprising this Contract have the same
status.
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Each one of the
Annexes and Appendices, when applicable, as well as any future
updates or additions which the Parties
may agree to incorporate into this Contract, suitably signed by
both Parties, shall form an integral part thereof. The rights and
obligations deriving therefrom shall be exercisable or enforceable
from the date it is signed, except in the case of an agreement to
the contrary on the validity date.
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ESSENTIAL OBLIGATIONS OF THE
CONTRACT
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The
Parties explicitly acknowledge the essential nature of the
following obligations within the framework of this
Contract:
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
A.
Obligations of ELEPHANT TALK:
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Rendering of the services that are
the object of the Contract by ELEPHANT TALK in the terms and
conditions established in the Contract.
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Likewise, ELEPHANT TALK accepts the
following obligations:
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3.2.1
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Guarantee that the rendering of the
services under this Contract shall be carried out in accordance
with the technologies and modalities currently in existence and
working, which shall be suitably maintained and upgraded on the
basis of the mobile electronic communications market’s
development. In this connection, ELEPHANT TALK guarantees the
adequate upgrading of the functionalities, services, platform
architectures and technologies available in the telecommunications
market at any given moment, as per the roadmap which both Parties
will keep updated in order to guarantee their dimensioning in
accordance with the growth in the VIZZAVI services. The roadmap
will be designed and kept updated on the basis of independent
benchmarking, reflecting the existing developments in the
market.
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3.2.2
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Undertaking to make available to
VIZZAVI access to future technologies and technological innovations
that may appear in the telecommunications market, always provided
that a prior request has been made, and that the aforesaid
technologies and innovations are within the scope of ELEPHANT
TALK.
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ELEPHANT TALK must notify and make
available to VIZZAVI, sufficiently in advance for VIZZAVI to be
able to offer it in the market, the implementation of any new
functionality whether deriving from a new project or technology or
the consequence of the existing functionalities’ evolution,
within the mobile telecommunications environment.
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3.2.3
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Guarantee of the adequate updating
of commercial conditions, as regards both the services that are the
object of this Contract and any new services that may arise, based
on the needs expressed by VIZZAVI to keep itself competitive in the
market in which it conducts its activities. The economic terms and
conditions for the development of new services not included in the
object of the Contract, as established in Annexes A, B, C, D and E,
shall be established in accordance with the provisions of Annex
D.
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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3.2.4
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Guarantee of adequate maintenance of
the commercial structure and prices, as described in detail in
Annex D, in the cases contemplated in 3.2.1 and 3.2.2.
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Not to render,
either directly or indirectly, the operation and technical support
services under this Contract to any
operator other than VIZZAVI (with or without its own
telecommunications network) that is a direct or indirect competitor
of VIZZAVI in the Spanish mobile electronic communications market,
within a *** term counting from the Contract’s
execution, except with the express authorization of
VIZZAVI.
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B.
Obligations of VIZZAVI:
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To make the
payments owed by virtue of this Contract in the terms and
conditions of Clause 13 and Annex D
relating to the economic terms and conditions.
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Fulfillment in
good faith of its obligations to provide maximum support to
ELEPHANT TALK in this Contract’s
application and performance.
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Obligation of
VIZZAVI, pursuant to the provisions of Clause 1.3.2, not to
contract the operation and technical
support services under this Contract with any other comprehensive
technological platform different to ELEPHANT TALK, except with the
express authorization of ELEPHANT TALK.
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This Contract shall enter into force on the date
it is signed and shall remain in force for a 5-year term. This Contract shall be automatically
renewed for successive terms of two (2) years as from the
completion of the initial term and/or that of its renewals, except
when either of the Parties notifies the other in writing of its
intention to the contrary, at least *** in advance of the
conclusion of the term that is in force.
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In the event
that ELEPHANT TALK decides not to renew this Contract, the
provisions of Clause 6.4 shall
apply.
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Without
prejudice to the Contract’s validity date, the Parties agree
that the effective rendering of the
services contemplated in Annexes A and B shall abide by the
implantation schedule described in Annex E
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The commercial
launch date may not be later than 1 June 2009, except when any of
the circumstances provided for in Annex E
relating to fulfillment of the implantation schedule
exist.
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The Parties agree to expressly exclude the
possibility of early discharge, with the exception of the cases provided for in Clause 6. If
either of the Parties, infringing the provisions of this Contract,
were to request the Contract’s early discharge in a situation
other than those established therein and without the other
Party’s agreement, the penalties indicated in Clause 7.1
shall apply.
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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4.6
|
Once two years have elapsed since
the Contract’s initial validity, both Parties
undertake to study and evaluate new formulae for their joint
co-operation. Nevertheless, at the request of either of the Parties
and always with their mutual consent, it shall be possible for new
formulae for their joint co-operation to be studied and evaluated
within a shorter term than that established above.
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CONTRACT
REVIEW AND AMENDMENT
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In the event
that one of the cases described below were to arise, the Parties
are hereby legitimized to request,
in writing, the opening of negotiations that, as and when
applicable, shall give rise to the review and amendment of the
affected points of the Contract, subject to the agreement of the
Parties:
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The
negotiations for the Contract’s review and/or amendment must
comply with thefollowing rules:
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5.2.1
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The Parties
undertake to negotiate in good faith.
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5.2.2
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The
Parties undertake to mutually make available all the essential
information for the development of the negotiations, under the
confidentiality obligation established in Clause 9.
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5.2.3
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During the course of the negotiation
process for the Contract’s review, it shall be understood
that the validity thereof has been provisionally renewed, except in
the case of an agreement of the Parties to the contrary.
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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CONTRACT TERMINATION AND
CONSEQUENCES
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The
Contract shall terminate for the general causes accepted in Law
and, in particular, for the following causes:
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6.1.1
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With the mutual consent of the
Parties, expressly indicated in writing and with the setting of the
Contract’s termination date.
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6.1.2
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Due
to the termination of the initial validity period or of the tacit
renewal, as established in Clause 4.1, always provided that one of
the Parties notifies the other in writing of its intention to
exclude the Contract’s renewal, a minimum of *** in
advance of that date.
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6.1.3
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Due
to the revocation, cancellation or modification, by the
Authorities, of the legal authorization held by VIZZAVI when, in
this latter case, fulfilment of the obligations laid down in this
Contract is prevented. Both Parties shall do their utmost to avoid
this situation.
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6.1.4
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Due
to the entry in the body of shareholders of ELEPHANT TALK of a
direct competitor of VIZZAVI or of the VIZZAVI Group in the mobile
electronic communications market, whenever such acquisition of
shares involves (i) the taking of control by the direct competitor
of ELEPHANT TALK in the sense of Article 42 of Spain’s
Commercial Code; or (ii) the appointment of at least one Director
on the Board of Directors of ELEPHANT TALK.
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6.1.5
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Due
to the entry in the body of shareholders of ELEPHANT TALK of a
company that in the *** following entry becomes a
direct competitor of VIZZAVI or of the VIZZAVI Group in the Spanish
mobile electronic communications market, whenever such acquisition
of shares involves (i) the taking of control by the direct
competitor of ELEPHANT TALK in the sense of Article 42 of
Spain’s Commercial Code; or (ii) the appointment of at least
one Director on the Board of Directors of ELEPHANT TALK.
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For
the purpose of Clauses 6.1.4 and 6.1.5, ELEPHANT TALK undertakes to
communicate to VIZZAVI whatsoever acquisition of shares on the part
of a direct competitor of VIZZAVI or of its Group, at the moment
such acquisition takes place or the moment at which it has
knowledge thereof and is authorized to make such
communication.
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6.1.6
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Likewise, due to the entry of
ELEPHANT TALK in the body of shareholders of a competitor of
VIZZAVI or of its Group in the Spanish mobile electronic
communications market, whenever such acquisition has the same
consequences as those described in Clauses 6.1.4 and 6.1.5
above.
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6.2
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ELEPHANT TALK may seek the
unilateral discharge of Contract through an express and written
communication in the following case:
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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6.2.1
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Whenever VIZZAVI fails to fulfill
any of its essential obligations contained therein and always
provided that such non-fulfillment is not remedied by VIZZAVI
within a *** term as from the notification requesting
remedy.
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VIZZAVI may seek the
Contract’s unilateral discharge by means of an express
and written communication in the following cases:
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6.3.1.
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Whenever ELEPHANT TALK fails to
fulfill any of the Contract’s essential obligations
established in Clause 3 thereof.
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In
the event of non-fulfillment on the part of ELEPHANT TALK of the
obligations laid down in Clause 3.2, discharge may be made
effective by VIZZAVI whenever ELEPHANT TALK fails to remedy such
non-fulfillment within a *** term as from the
notification requesting remedy.
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6.3.2
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In
the case of repeated non-fulfillment of the operation and quality
indications established in Annexes A, B, C and E.
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6.3.3
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In
the event that ELEPHANT TALK decides to contract the wholesale
access services in Spain with an operator other than VIZZAVI or the
Group to which the latter belongs for the rendering of mobile
telephony services to its clients under the VMO model. At any
event, ELEPHANT TALK shall communicate its intention to VIZZAVI,
*** in advance thereof.
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The Contract’s termination
for whatsoever cause shall not necessarily involve theimmediate
cessation of the rendering of the ELEPHANT TALK services to VIZZAVI
and the latter may request ELEPHANT TALK to continue with the
rendering thereof. ELEPHANT TALK shall guarantee the continuity of
the rendering of the services in the same conditions as those in
which they were being rendered up to termination, always provided
that such conditions comply with what has been agreed in the
Contract, during a minimum term of *** after the
Contract’s termination or at any event during the time that
may be necessary for VIZZAVI to reach a similar agreement to this
one and to satisfactorily migrate all the services to the new
platform, and the platform remains stable, understanding by such
the criterion that the Technology Department of VIZZAVI may
establish. Similarly, ELEPHANT TALK shall guarantee complete
transparency and the necessary technical support so that migration
takes place with maximum speed and least impact on the activity of
VIZZAVI. During this period, ELEPHANT TALK shall be authorized to
render its services to operators other than VIZZAVI.
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The Contract’s termination
due to the elapsing of the initially agreed 5-year term or
any of its renewals shall not involve the immediate cessation
of the rendering of the ELEPHANT TALK services to VIZZAVI in
respect of those VIZZAVI customers which, at the moment of
termination, have been incorporated into the comprehensive
technological platform for a term of less than *** . The
rendering of the ELEPHANT TALK services to VIZZAVI in the terms and
conditions of this Contract shall apply in respect of each customer
during the term that remains up to the *** term’s
completion.
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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6.6
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At any event,
the Contract’s discharge for any of the causes provided for
in this Clause shall not represent the
waiver by either of the Parties of the exercise of the actions that
may correspond to them by Law and shall not release the Parties
from fulfilment of their outstanding obligations.
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6.7
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The obligations
contained in the Clauses indicated below shall remain in force
after the Contract’s termination
for a 5-year term: Clause 9 (Confidentiality) and Clause 11
(Applicable Legislation and Binding Settlement of
Disputes).
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PENALTY
CLAUSE FOR EARLY DISCHARGE
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7.1
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Within the
framework of Clauses 6.1.4, 6.1.5, 6.1.6, 6.2 and 6.3, which grant
the right to the Party not causing the
situation described to seek unilateral discharge of Contract, and
without prejudice to the compensation for damages and losses to
which it may give rise, as a penalty clause expressly convened
between the Parties, the following penalties are established for
the cases described below:
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7.1.1
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In
the cases provided for in Clauses 6.1.4, 6.1.5, 6.1.6 and 6.3,
should it be VIZZAVI which exercises the right to unilateral
discharge of contract on the grounds of the existence of any of the
circumstances established as a cause for discharge of contract by a
unilateral resolution in its favour, ELEPHANT TALK shall pay
VIZZAVI the corresponding amount as established in the following
table:
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S
< ***
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***
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***
=
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S
<
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***
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***
=
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S
<
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***
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***
=
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S
<
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***
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***
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The
Parties agree that the total number of services in the platform (S)
shall be the average of the *** of the last ***
.
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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7.1.2
|
In
the case provided for in Clause 6.2, if it is ELEPHANT TALK which
exercises the right to unilateral discharge of contract, on the
grounds of the existence of any of the circumstances established as
a cause for discharge of contract by a unilateral resolution in its
favour, VIZZAVI must pay ELEPHANT TALK, as a penalty, an amount
equivalent to that which ELEPHANT TALK has invoiced to VIZZAVI
during the *** immediately prior to the exercise of the
unilateral discharge right, up to a limit equivalent to the
applicable penalty as per Clause 7.1.1 for the corresponding number
of services ***.
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ECONOMIC LIMIT OF THE PARTIES’
LIABILITY IN THE CONTRACT’S PERFORMANCE
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8.1
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Each Party
shall be responsible for the adequate fulfilment of its obligations
under this Contract, subject, in respect
of possible claims lodged by one Party against the other, to the
following limits:
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8.1.1
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There shall be no limitation on
their liability other than that which applies pursuant to Spanish
legislation in respect of losses that, being due to actions or
omissions, comprise: losses produced by the infringement of
industrial or intellectual property rights; injuries caused to
persons; damage caused to material goods; or losses caused by
wilful intent.
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8.1.2
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Outside the aforementioned cases, in
respect of losses caused by serious negligence in actions or
omissions, the responsible Party shall be answerable up to a
maximum limit of *** euros ( *** €)
in respect of consequential damages, loss of earnings, loss of
profits and/or loss of data.
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8.1.3
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Outside the aforementioned cases, in
respect of losses caused by ordinary negligence in actions or
omissions, the responsible Party shall be answerable up to a limit
of *** euros ( *** €).
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8.1.4
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One
Party shall be liable before the other for the losses caused
(particularly for the loss of logs, data or any other information)
due exclusively to the latter’s non-fulfilment of the
obligations accepted by it by virtue of this Contract.
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8.2
|
The
Parties shall not be responsible for the delay, fault in the
execution or any other non-fulfilment of any of their
contractual obligations when such delay, fault in the execution or
non-fulfilment is due to the existence of a cause of force
majeure.
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The
Party invoking the partial or complete impossibility of the
Contract’s performance for a cause of force majeure must
inform the other Party, as quickly as possible and by whatsoever
means, the nature, cause, scope and estimated duration of the
event. For the time that the event and the effects arising
therefrom last, the Parties shall act and co-ordinate in good faith
their efforts with a view to adopting as many measures as may be
necessary and essential to alleviate and/or overcome
them.
The
Parties’ contractual undertakings and obligations shall be
suspended if the event of force majeure and its effects cannot be
alleviated, remedied and/or overcome within the seven days
following that on which it was notified. Nevertheless, if the
situation caused by force majeure were to continue after one month
has elapsed since the event was notified, the Contract shall be
lawfully terminated without giving rise to compensation of
whatsoever type in favour of either of the Parties.
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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8.3
|
ELEPHANT TALK
shall keep VIZZAVI free from all responsibility and claim that
any third party may file against the
latter by virtue of this Contract’s performance. To this end,
whatsoever claim made against VIZZAVI for this reason shall be
notified immediately to ELEPHANT TALK so that it can appear in the
claim as necessary and/or voluntary passive joint litigant,
together with a lawyer representing its position, against the
claim, without this representing on the part of VIZZAVI abandonment
of the right to defend itself in each proceeding, for as long as it
continues to appear as the defendant, co-defendant, passive joint
litigant or third party in the action.
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8.4
|
Under no
circumstances shall the liability deriving from the application of
Clauses 8.1.2 and 8.1.3 exceed the limit
of *** euros ( *** €) for each ***
term of the Contract.
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9.1
|
Neither VIZZAVI
nor ELEPHANT TALK may disclose to third parties, without
the prior express and written consent of
the other Party, any information relating to the content of this
Contract or relating to the other Party or the relations of the
other Party with its own customers, to which it may have access as
a consequence of this Contract, undertaking to treat such
information confidentially. The confidentiality obligation
established in this Clause shall remain in force during the
Contract’s performance and once it has
terminated.
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9.2.1
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For
the purpose of this Contract, the following expressions shall be
interpreted as per the definitions that appear after them, as
follows:
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“Own Information”: As an example but by no means
limited thereto, the following shall be deemed to be “Own
Information”: discoveries, concepts, ideas, know-how,
techniques, designs, drawings, drafts, diagrams, models, samples,
databases of all types, and any technical, financial or commercial
information of either of the Parties.
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“Source”:
Either of the Parties shall be deemed to be the
“Source” whenever, within the terms of this Contract,
it is the one which supplies the Own Information.
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“Addressee”: Either of the Parties shall be deemed to
be the “Addressee” whenever, within the terms of this
Contract, it is the one which receives the Own Information from the
other Party.
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9.3.1
|
The
Parties agree that any information relating to financial,
commercial, technical and/or industrial aspects of either one of
them or of their respective businesses supplied to the other Party
as a consequence of the agreements they may reach (regardless of
whether or not such transfer is verbal, written, on magnetic
support or any other computerized mechanism, graphic or of any
other type) shall be deemed to be confidential information and
shall be treated pursuant to the provisions of this document. For
the purpose of this Contract, such information and its copies
and/or reproductions shall be deemed to be “Own
Information”.
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CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
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EXCLUSION
FROM THIS CONTRACT
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9.4.1
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The
following information shall not be deemed to be Own Information and
neither shall it be treated as such:
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When it is public knowledge at the
moment of the supply to the Addressee or, when the supply has been
made, it achieves such condition without the Addressee having
infringed the provisions of this Contract.
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When it can be demonstrated by the
Addressee, through its archives, that it was in its possession
through legitimate means prior to the information being supplied by
the Source, without any confidentiality agreement being in force at
that moment.
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When it has been widely disclosed
without any limitation by its legitimate creator.
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When it was created completely and
independently by the Addressee, wi
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