SEC Info℠

Home

Search

My Interests

Help

Sign In

Please Sign In

Elandia International Inc. – ‘10-12G’ on 2/13/06 – EX-10.21

On:  Monday, 2/13/06, at 5:36pm ET   ·   Accession #:  1193125-6-29164   ·   File #:  0-51805

Previous ‘10-12G’:  None   ·   Next:  ‘10-12G/A’ on 8/25/06   ·   Latest:  ‘10-12G/A’ on 4/25/07

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

 Text Wildcards:  ? (any letter/digit),  * (many).  Search Logic:  for Documents:  & (and),  | (or);  for Text:  | (anywhere),  "(&)" (near).  Details... 

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 2/13/06  Elandia International Inc.        10-12G                40:11M                                    RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 10-12G      Form 10                                             HTML   3.42M 
 2: EX-2.1      Order Confirming Joint Plan of Reorganization and   HTML     79K 
                          Granting Debtor's Motion                               
 3: EX-2.2      Amended and Restated Agreement and Plan of Merger   HTML    247K 
 4: EX-2.3      Amended and Restated Arrangement Agreement          HTML    525K 
 5: EX-3.1      Certificate of Incorporation of the Company         HTML     58K 
 6: EX-3.2      Bylaws of the Company                               HTML     62K 
 7: EX-4.1      Co-Sale and First Refusal Agreement                 HTML     49K 
 8: EX-4.2      Security Agreement                                  HTML     58K 
 9: EX-4.3      Satisfaction and Release of Promissory Notes and    HTML     17K 
                          Security                                               
10: EX-9.1      Shareholder Voting Agreement                        HTML     16K 
11: EX-10.1     Government of American Samoa                        HTML     75K 
20: EX-10.10    Post Petition Loan and Security Agreement           HTML    285K 
21: EX-10.11    Security Agreement                                  HTML     58K 
22: EX-10.12    Form of Idemnification Agreement                    HTML     55K 
23: EX-10.13    Form of Lock-Up Agreement                           HTML     36K 
24: EX-10.14    Executive Employment Agreeement                     HTML     50K 
25: EX-10.15    Stock Subscription Agreement                        HTML     29K 
26: EX-10.16    Stock Purchase Agreement                            HTML     29K 
27: EX-10.17    Stock Subscription Agreement                        HTML     28K 
28: EX-10.18    Ibm New Zealand Limited                             HTML    154K 
29: EX-10.19    Distributor Agreement                               HTML    167K 
12: EX-10.2     Customer Solutions Agreement                        HTML   1.32M 
30: EX-10.20    Contract Between Sagric International Pty. Ltd and  HTML    293K 
                          Datec (Png) Ltd                                        
31: EX-10.21    Network Management Outsourcing Agreement            HTML    299K 
32: EX-10.22    Master Operating Lease                              HTML    346K 
33: EX-10.24    Lease Agreement, Dated April 1, 2005                HTML     51K 
34: EX-10.25    Lease Agreement, Dated April 1, 2005                HTML     52K 
35: EX-10.26    Lease Agreement, Dated October 13, 2004             HTML     37K 
36: EX-10.27    Lease Agreement Dated September 10, 2003            HTML    108K 
37: EX-10.28    Lease Agreement Dated December 1, 2004              HTML     33K 
38: EX-10.29    Lease Agreement, Dated December 1, 2004             HTML    108K 
13: EX-10.3     Employment Agreement                                HTML     66K 
39: EX-10.30    Constitution of Datec (Png) Limited                 HTML    468K 
40: EX-10.31    Shareholders' Agreement                             HTML    150K 
14: EX-10.4     Executive Employment Agreement                      HTML     49K 
15: EX-10.5     Stock Purchasing Agreement                          HTML     39K 
16: EX-10.6     Renewal Revolver Note                               HTML     21K 
17: EX-10.7     First Amendment to Loan and Security Agreement      HTML     28K 
18: EX-10.8     Centra Industries, Inc. Secured Revolver Note       HTML     21K 
19: EX-10.9     Secured Revolver Note                               HTML     21K 

Exhibit 10.21

Network Management Outsourcing Agreement
Bank of South Pacific Ltd		Network Management Outsourcing Agreement

Abbreviations

Definitions

“Agreement” means this agreement. The Network Management Outsourcing Agreement.

“CPI” means an amount determined by reference to All Groups Indexes for Urban Areas being the figure relating to the weighted urban average for PNG contained in the Consumer Price Index published by the Papua New Guinea Bureau of Statistics each quarter in the Papua New Guinea Statistical Bulletin.

“Help Desk” means a physical location within Datec’s head office designated as an immediate contact point to provide service assistance to customers.

“Material Breach” includes (but is not necessarily limited to) the occurrence of any or more of the following:

“Business Hours” means Monday to Friday 07.30 hours to 18.00 hours.

TABLE OF CONTENTS

OVERVIEW

This Network Management Outsourcing Agreement incorporates the terms and conditions for the provision of Network Outsourcing Services and Deliverables by Datec (PNG) LTD (Datec) to the Bank of South Pacific Limited (BSP).

The parties further agree that they will provide best commercial efforts for the benefit of one another to ensure that neither the BSP nor Datec are disadvantaged throughout the fulfilment of this agreement.

The parties will therefore provide full assistance to each other and agree to work proactively together to:

This document is structured to capture the key conditions of the agreement in a logical order. It is understood that the agreement may be changed at any time by the mutual consent of both parties using the revision history and approval records contained in the Document Distribution, Approval and Revision History.

The following assumptions apply to this agreement:

The commencement date for this contract will be 16^th June 2004.

The initial term of the contracted agreement is 5 years from the commencement date. The BSP then have the option to renew the agreement for another 5 years subject to any restructuring of the agreement as required by the parties.

Either party may advise the other of the impending expiry of the then current term, generally in accordance with section 14 .

The normal business hours for services under this agreement will be Monday – Friday 07.30 hours to 1800 hours.

Twenty-Four Hour (24Hour) Help Desk will be provided Monday to Friday outside of normal business hours.

The Datec (PNG) LTD Deliverables

Datec will:

Datec will deliver the following project related Services:

Certain hardware such as the Telikom Lease Line Circuits –NTU’s (Network Terminal Units), Pix Firewall and content engine, plus and a number of routers and switches will need to be relocated to the Datec computer room. The computer room and the Datec building have been purposely built with a full disaster recovery management system in place with triple redundancies. The space that this equipment will occupy is based on the industry standards set for such equipment when placed in a computer room environment.

Datec will:

(i) BSP will provide Datec with tine required authority to acquire spares parts in order to complete any repairs /replacement that may be required

(ii) Datec will be responsible for the provision of any spare parts required to complete any repairs to the managed Network equipment.

(a) entering problem information into a problem record;

(b) performing incident source identification and severity impact level;

(c) providing feedback to users;

(d) invoking proper incident resolution resources;

Datec Will:

Datec will assist in detecting, fire-walling and blocking propagation of network viruses but are not responsible for virus detection or outbreaks that occur within the banks local area network. Datec will assist the BSP when requested to handle any virus issues that fall out side the scope of this agreement as per the terms of this agreement.

Datec will provide in accordance with BSP requirements Internet Services and follow on support as currently provided to the BSP under Datec’s customer ISP services policy.

Datec will:

Datec will:

Datec will:

Datec will be responsible for liaison with managed third parties (MTP’s) in the procurement and management of installations, and deletion of and Tracking Network Services within the Network under instruction from BSP. Such responsibilities will include:

Datec will be responsible for supporting, administering, managing and performing provisioning of Equipment and Equipment Software comprising the Network. Unless specifically exempted, the equipment is to be supplied by Datec and invoiced for payment according to Datec’s normal terms of trade.

Datec will:

Datec will:

Datec will:

Should it be determined that extra capacity is required this cost will be meet by the BSP working with Datec.

In accordance with the Agreement, Datec will co-ordinate Managed Third Parties (“MTP) where agreed with the BSP.

Datec will:

As a component of the base fee Datec will perform any required MACs that fall within the scope of work contained in this agreement.

Datec will also be required to provide MACs to the BSP with pricing and costs for tasks that fall outside the agreement such as project management or the acquisition of new equipment or upgrades but not just restricted to these items.

On approval of any MAC Datec will be required to assist in the supervision, management and implementation of changes related to the Network and the Services as necessary to satisfy BSP’s business and operational requirements.

Datec will:

Datec will

Provide Help Desk support, which includes:

Datec will:

 Datec will provide project services as agreed with the BSP that fall outside the scope of this document.

 BSP Customer Business Manager (CBM) contact details:

[*****]

[*****]

[*****]

[*****]

[*****]

Datec will:

As set forth below, Datec will manage physical security for the Network as necessary to satisfy BSP’s business and operational requirements. Datec will be responsive to BSP changes in its physical Network security requirements as they may change over time. Datec will comply with relevant BSP information security policies, and government regulations. With respect to this responsibility,

Datec will:

Datec will adhere to the BSP’s DRP policy and procedures and will assist wherever possible to further enhance these within the scope of this agreement.

Change management is both a communications process and a methodology that seeks to introduce change into any environment without adversely impacting service delivery and commitments and will usually be associated with a MAC document.

Datec will perform the change management functions below:

Datec Will:

Datec will manage the BSP WAN operations from its Corporate Head Office located in Waigani Drive, Port Moresby.

In order for this to occur certain routers/switches and associated network equipment will be located at Datec

The Current Router and Switch Locations that will be covered by this agreement are:

Performance Standards

Throughout the term of the agreement Datec will:

Datec will:

Detailed supporting information and reports relating to service levels and performance will be confidential between the two parties.

Both parties will treat the terms of this agreement and any supporting documentation, such as emails, facsimiles and the like as confidential and may only disclose it:

Reports

Datec is to provide a range of reports and/or data required to develop such reports in an agreed format to the BSP or its nominee on daily, weekly, monthly and ad hoc basis as requested by BSP.

Datec will undertake the following functions:

Datec will make available to the BSP

Datec must structure performance reporting so that it can be readily communicated to the management or end-user, business areas and business system owners in a mutually agreed format.

Personnel

Datec will:

BSP may by notice to Datec, require Datec to replace any of the Supplier Personnel for the reasons stated in the notice and:

BSP does not have the right to require Datec to terminate any person’s employment or contract with Datec. It is only intended to give the BSP the right to require that Datec discontinue using a particular person in the performance of Services for the BSP.

From the Commencement Date of the agreement both parties must ensure that they do not without mutual written consent solicit, entice or attempt to entice away any employee from either organisation during the Term and for 1 year after the termination date.

Clause 5.5 will not in any way restrict either organisation from hiring any person who has responded to any published advertisement of position or who has otherwise approached either organisation for employment unsolicited or its agents or Related Corporations.

Datec must ensure that it, and each of the approved subcontractors and employee’s complies with all obligations relating to payment of tax instalment deduction, deductions from prescribed payments, fringe benefits tax, training guarantee levy, superannuation, payroll tax and any other taxes or levies imposed upon an employer which arise in respect of any amounts paid to the Datec under this agreement and that it complies with all requirements imposed on an employer under the relevant legislation to keep records, lodge returns and provide information in relation to such obligations.

Datec must at all times comply with and ensure that its personnel and approved subcontractors comply with the laws and regulations on occupational health and safety.

Audits And Record Keeping

Datec must keep, and must require subcontractors to keep, adequate accounts, documents and records to the extent required by the BSP as advised and in sufficient detail to enable Datec’s compliance with this agreement and the accuracy of its invoices to be determined.

Datec must give, and must ensure that its Subcontractors give, BSP and their Personnel, (including internal and external auditors and advisers) full access at all reasonable times and on reasonable notice to:

in order to enable the BSP to audit Datec’s compliance with this agreement and for operational risk reasons.

The BSP itself may also audit the Supplier’s (and its subcontractors) records relevant to the supply of the Services for any reasonable purpose including processes, procedures and performance for operational risk assessment, regulatory requirements and annual reporting.

For the purpose of complying with this clause, Datec must promptly and efficiently give the BSP and their Personnel any assistance they reasonably require, including, if requested, installing and operating audit software. BSP and their Personnel will comply with Datec’s reasonable security requirements.

Subcontractors

Datec may only subcontract its obligations under this agreement as follows:

Datec must obtain the BSP’s approval for any subcontracts but may do so without its consent if:

The terms of any subcontract must be consistent with this agreement, unless the BSP agrees otherwise, including:

Pricing

The BSP will pay Datec a base fee plus any other fees and charges that may be agreed too during the term of the agreement but excluding, travel, freight and tax related matters.

BSP will be responsible for any freight and or related travel costs incurred by Datec in the execution of the services as defined in this agreement. Prior to undertaking or committing to any freight and or related travel costs Datec must first obtain approval from BSP.

The base fee includes all things necessary to manage the WAN management services as provided for by the terms of this agreement.

The base fee includes all costs, expenses, taxes (except for GST/VAT), duties, levies or imposts relating to the services and Datec’s performance of its obligations under this agreement.

Each month Datec will provide the BSP with an invoice including:

The following definition will apply:

“Time to Respond” means, the time between the problem being logged and the customer being given a job number and the technician beginning the job” As this applies to Severity Levels One (1) and Two (2) this will also include the informing of Datec’s senior operational management.

Pricing Adjustments

No later than 30 days after the end of each contract year the Base Fee must be increased or decreased in accordance with the increase or decrease in the CPI and such increases or decreases will be calculated by using the following formula:

R2 = R1 x New CPI

                  Old CPI

Where:

R2 = the Base Fee payable for the relevant 12 month period of the Term

R1 = the Base Fee specified the previous year.

New CPI means the last published CPI for a complete quarter ending prior to the date of commencement of the relevant 12-month period of the term.

Old CPI means the last published CPI for a complete quarter ending prior to the date of this agreement.

Should the CPI increase exceed more than 10% in any given year the maximum amount applied will be 10% or which ever is lower.

These are expenses to be paid directly by the BSP with no margin or mark up added by Datec. Datec must provide the BSP with all information and material reasonably required to validate a pass through expense.

The BSP may conduct a service level review at least once per 12-month period or as required with the agreement of Datec.

At least annually the parties will review the Service Levels to determine whether they still reflect the requirements of the BSP. Should the BSP decide that they do not, the BSP may:

Extraordinary Events

The BSP may notify Datec that an Extraordinary Event has occurred or is likely to occur and provide details of such Extraordinary Event.

On receipt of such notice, Datec must promptly determine and report to the BSP the effect on:

The parties must use their efforts to agree on the level of required resources and, having agreed, will adjust the agreement accordingly to reflect this change. This will include the adjustment of the base fee and a suitable implementation plan.

Confidentiality

All information exchanged between the parties under this agreement or during any negotiations undertaken at any time in respect of this agreement is confidential to those parties and must not be disclosed to any persons except:

Returning Material, Data, Hardware, Software And Information

Upon request from the BSP or at the end of the disengagement period Datec must:

At the end of the disengagement period the BSP will transfer any material, data, hardware, software and information from Datec to its chosen new location. Datec will assist where possible. The disengagement period will be as determined under Section 14 (Termination) of this agreement.

Compliance With Laws

This agreement will be constructed in accordance with the laws of Papua New Guinea and the parties submit to the non-exclusive jurisdiction of the National Court of Justice of Papua New Guinea.

Termination

If so advised the BSP may terminate this agreement by giving written notice to Datec if:

The BSP may after giving due consideration to all circumstances and not acting unreasonably, terminate this agreement by giving written notice to Datec if there is a change of control or major shareholding of Datec.

In the case of the BSP requiring termination under this clause, the BSP will use its best commercial efforts to ensure that it gives due consideration to all the circumstances and does not act unreasonably in demanding such termination.

If the BSP gives such a notice of termination, then:

then the BSP will pay Datec according to Section 14 – “Termination” of this agreement and the Termination Table in Schedule C.

The BSP may terminate the whole or any part of this agreement for convenience at any time by giving Datec at least 6 months prior written notice.

Datec may terminate the whole or any part of this agreement for convenience at any time by giving the BSP at least 6 months prior written notice.

If the BSP terminates under clause 14.3 (Termination by BSP for Convenience) the BSP will pay Datec the Termination Fee calculated in accordance with Attachment C (Pricing).

The amount payable by the BSP under clause 14.3 (Termination Fee) will be Datec’s sole remedy for the BSP terminating for convenience.

Datec must mitigate the cost of termination, including by using its best efforts to:

General Indemnities

Datec must indemnify, defend and hold harmless the BSP, their employees, agents, successors and assigns, from any and all Damages arising from, in connection with, or based on allegations of, any of the following:

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.

Personal Injury, Property Damage Indemnity

Datec indemnifies the BSP against all Damages that the company may sustain or incur (including those sustained or incurred as a result of a claim by a third party against the BSP as a result of:

caused by an act or omission of Datec or its personnel

The BSP indemnifies Datec against all Damages that Datec may sustain or incur (including those sustained or incurred as a result of a claim by a third party against Datec or any related company as a result of:

caused by an act or omission of the BSP or its personnel.

Risk Management

17.1 Insurance Coverage

The BSP will provide full comprehensive replacement insurance cover for all assets contained in the Asset Register (Schedule A).

The BSP will provide documentary evidence to Datec that such insurance is in place for the term of the agreement.

Datec will not be held liable for service level deficiencies related to insurance issues or an Act of God. Both parties agree to work together to resolve any such issues.

General Conditions

Datec must not assign this agreement or any right under this agreement unless Datec

BSP may:

This agreement will be construed in accordance with the laws of Papua New Guinea and the parties submit to the non-exclusive jurisdiction of the National Court of Papua New Guinea.

Dispute Resolution

A party claiming that a dispute, difference or question arising out of this agreement (Dispute) has arisen must notify the other party in writing giving details of the dispute.

Senior executive managers of both companies must meet together to negotiate in good faith with a view to resolving the dispute.

If the parties cannot resolve the Dispute within 30 days after the Notification, the parties must refer the Dispute to:

the cost of which will be at either parties own cost

If a Dispute is referred for expert determination the expert must make a determination by reference to what is reasonable in the context of the overall service delivery environment but taking into account best practice standards and relevant benchmarks in Papua New Guinea.

Expert determination must be completed by a mutually acceptable independent expert such as an accountant, computer expert or other person/s as agreed between the parties to assist in the resolution of any such dispute with knowledge of the operating conditions within Papua New Guinea.

But whose decision will not be binding on the parties.

Neither party may terminate this agreement pending the decision of such expert, but either party may approach the court for urgent relief if it is though desirable

The parties will attempt to agree an appropriate expert or mediator. If they are unable to agree either party may at its own cost, request the president of the Law Society of Papua New Guinea to appoint a suitably qualified person to decide the dispute and determine the cause of action which best meets the objectives of the parties under or in the context of this agreement.

That person will act as an expert and not as an arbitrator and the decision or determination must, so far as practicable, be made within 21 days of the request

The expert may request either of the parties to appear before him or to provide a written explanation as to the reasons for the dispute and as to the party’s reasons for following a certain course of action.

Each expert determination and mediation conducted in accordance with this clause will be conducted in accordance with the relevant sections of the this agreement and the appropriate laws of Papua New Guinea.

The parties agree that a determination made by an expert will not be binding on either party. Once a determination has been made, the parties will recommence negotiation to resolve the Dispute and if they fail may initiate court proceedings.