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UNILATERAL BUY AGREEMENT
LOTUSTELCO desires to purchase and Provider desires to supply to LOTUSTELCO, upon the terms and conditions set forth in this Agreement, telecommunication services as specified in ANNEXURE I (the "Services").
NOW, THEREFORE, intending to be legally bound, the Parties agree as follows:
1. Business Provisions.
LOTUSTELCO agrees to pay Provider in accordance with the terms and conditions set forth in ANNEXURE I. The Services to be provided are limited to those set forth in ANNEXURE I. Provider may change the services, rates, terms and conditions described in ANNEXURE I, any attachment thereto or subsequent rate sheet or ANNEXURE by providing seven (7) days prior written notice to LOTUSTELCO provided, however, that upon such notice, LOTUSTELCO may terminate this Agreement immediately within such thirty (30) day period. Revisions shall be communicated in writing via email using a rate modification notice (“Rate Modification Notice”). Provider shall send to LOTUSTELCO all rate amendments that are either FULL A-Z or contains Complete Country Break Out or Partial Rates Notification. This means, if a rate is changed for either a city, proper or mobile Provider shall send to LOTUSTELCO the complete country breakouts containing both codes and rates.
3.1 LOTUSTELCO will be responsible for payment of all undisputed charges as reflected on any billing statement. Any request for a billing dispute must be made in good faith and in writing within sixty
(60) Days from date the invoice was received, through the Written Dispute Notification, including all the relevant dispute details. Any such request for dispute shall not be cause for delay in the payment of the undisputed balance due. LOTUSTELCO shall have no obligation to pay any amount which has been disputed in good faith until such time that the dispute is satisfactorily resolved by the Parties. In the event the Parties are unable to resolve the dispute amicably within sixty (60) days of the day dispute notification is received, it shall be resolved by arbitration in accordance with Clause 19 and 20.
In the event of a dispute, the Parties shall promptly investigate any disputed charges and any other amount payable under this Agreement. If the disputed amount is less than one (1) percent of the total (excluding taxes) of the relevant invoice, the total amount invoiced shall be due and payable on or before the Due Date. If the amount in dispute is greater than one (1) percent of the total (excluding taxes) amount of the relevant invoice, the disputed amount may be withheld until the dispute is resolved.
3.3 Notwithstanding the forgoing, if Provider does not respond to LOTUSTELCO within thirty (30) days of the date the dispute notification is sent, the dispute shall be considered resolved in LOTUSTELCO’s favor, and the disputed amount, less any amount withheld, shall be credited to the LOTUSTELCO’s next invoice.
The charges specified in this Agreement are exclusive of value added tax ("VAT"), or any other applicable taxes, which, if due and owing, shall be added to the invoice and charged to and paid by the Provider at the then prevailing rate. Any applicable sales tax exemptions must be certified in writing to Provider with supported appropriate documentation. Neither Party shall be liable for any taxes based on the other Party's net income.
Term and Termination:
5.1 This Agreement shall expire one (1) year after the Effective Date, unless earlier terminated as provided herein (the “Initial Term”). This Agreement will be automatically renewed on a month-to-month basis after the expiration of the Initial Term or any mutually agreed subsequent term. If either Party desires to cancel this Agreement upon the expiration of the Initial Term or any subsequent term, it shall give the other Party written notice of its intent to cancel at least thirty (30) days prior to the expiration of the current term.
5.2 Termination. Each Party may terminate this Agreement: (a) if the other Party fails to fulfill any of its material obligations under this Agreement; (b) if the other Party is in breach of Section 23 (Confidentiality); (c) if the other Party becomes insolvent or admits in writing its inability to pay debts as they mature, or makes an assignment for the benefit of creditors; or (d) if a petition
Under any foreign, or Canada bankruptcy act, receivership statute, or the like is filed by the other Party. Termination due to default under Section 5.2(a) shall be effective thirty (30) days after written notice to the defaulting Party if the default has not been cured, to the non – defaulting Party’s reasonable satisfaction, within such thirty (30) day period. Termination due to Section
5.2(b) and 5.2(c) shall be effective immediately.
5.3 Effect of Termination. Upon termination of this Agreement for any reason, each Party shall remain liable for those obligations that accrued prior to the date of such termination.
5.4 Survival. The following provisions shall survive the expiration or termination of this Agreement for any reason: Section 2 (Settlement and Payment); Section 5 (Term and Termination); Section 7 (Limitation of Liability); Section 8 (Indemnification); and Section 23 (Confidentiality).
6.1 Authorization. Each Party represents and warrants to the other Party that the execution and delivery of this Agreement and the performance of such Party’s obligations under this Agreement have been duly authorized, and that the Agreement is a valid and binding agreement, enforceable in accordance with its terms.
6.2 Legal Compliance. Provider represents and warrants that it has obtained, or will obtain prior to offering the services hereunder, all licenses, approvals, and/or regulatory authority necessary to provide the services described herein.
NO OTHER WARRANTIES. PARTIES ACKNOWLEDGE THAT IT IS TECHNICALLY IMPRACTICABLE TO PROVIDE SERVICE FREE OF FAULTS, AND DO NOT UNDERTAKE TO DO SO. PARTIES MAKE NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER, AND MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR ENDORSEMENTS REGARDING ANY MERCHANDISE, INFORMATION, PRODUCTS OR SERVICES PROVIDED. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability:
7.1 Call Completion. Provider shall not be liable or responsible in any way for the failure of calls to be completed, for any reason whatsoever or for no reason, including, without limitation, the failure of its Providers to terminate such calls, or the failure of such calls to be completed.
7.2 Transmission. Each Party acknowledges that either Party has no control over the content of information transmitted by the other Party or its’ users and that other Party does not examine the use to which its users put the Services or the nature of the information the other Party or its users send or receive.
7.3 General Limitation:
EXCEPT FOR DAMAGES ARISING UNDER SECTION 8 (INDEMNIFICATION), OR SECTION 23 (CONFIDENTIALITY) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OR INTERRUPTION OF BUSINESS, WHETHER SUCH LIABILITY IS PREDICATED ON CONTRACT, STRICT LIABILITY OR ANY OTHER THEORY WITHOUT REGARD TO WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Each Party and its respective agents, employees, or other representatives (the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party and its affiliates, directors, officers, employees, proprietors, independent contractors, consultants, partners, shareholders, representatives, customers, agents, predecessors, successors, and permitted assigns (the
“Indemnified Party”) from and against any claim, suit, demand, loss, damage, expense (including LotusTelco Inc. – Confidential & Proprietary Unilateral Buy Agreement reasonable attorneys' fees and costs) or liability that may result from, arise out of or relate to: (a) any breaches of warranties contained in this Agreement; or (b) claim against the Indemnified Party by a third party with a contractual relationship with the Indemnifying Party.
Regulations. This Agreement is made expressly subject to all present and future valid orders and regulations of any regulatory body having jurisdiction over the subject matter hereof and to the laws of the Canada of , any of its states ( Province of Canada), and any foreign governmental agency having jurisdiction.
10. No Agency:
Neither Party is authorized to act as an agent for, or legal representative of, the other Party and neither Party shall have the authority to assume or create any obligation on behalf of, in the name of, or binding upon the other Party.
11. Force Majeure:
The Parties’ obligations under this Agreement are subject to, and neither Party shall be liable for delays, failures to perform (except the payment of money for services utilized hereunder), damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, labor disputes or shortages (except such labor disputes or shortages relative to each of the Parties), utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third Parties, or any other cause beyond the Party’s reasonable control. Neither Party shall represent that the other is responsible for the type or quality of services to its Providers.
No provision of, right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of either Party, its agents, or employees, but only by an instrument in writing signed by an authorized officer of each Party. No waiver by either Party of any breach or default of any provision of this Agreement by the other Party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
With the exception of Rate Modification Notices, this Agreement may only be amended by a written instrument, duly executed by the Parties. No modification or amendment hereto shall be effected by the acknowledgment or acceptance by either Party of any purchase order, sales acknowledgment or other similar form from the other Party.
This Agreement including ANNEXURE I supersedes and merges all prior agreements, promises, understandings, statements, representations, warranties, indemnities and covenants and all inducements to the making of this Agreement relied upon by either Party herein, whether written or oral, and embodies the Parties’ complete and entire agreement with respect to the subject matter hereof. No statement or agreement, oral or written, made before the execution of this Agreement shall vary or modify the written terms hereof in any way whatsoever.
The words and phrases used herein shall have the meaning generally understood in the telecommunications industry. This Agreement shall be construed in accordance with its fair meaning and not for or against either Party on account of which Party drafted this Agreement.
16. Third Party Beneficiaries/Parties in Interest:
This Agreement has been made and is made solely for the benefits of both Parties, and their respective successors and permitted assigns. Nothing in this Agreement is intended to confer any rights/remedies under or by reason of this Agreement on any third party.
If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part(s) thereof shall be stricken from this Agreement and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the provisions of this section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
18. Further Assurances:
The Parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement.
19. Governing Law:
The existence, validity, construction, operation, and effect of this agreement shall be determined in accordance with, and be governed by, the laws of the Canada Ontario. Provider agrees that any action or proceeding arising out of this Agreement shall be brought and maintained in Canada Ontario, and hereby consents to the jurisdiction of the courts located in the Canada Ontario.
Either Party may require that any dispute arising hereunder be settled by binding arbitration in accordance with the commercial arbitration rules of the n Arbitration Association provided that alleged breaches of Section 23 (Confidentiality) may be settled by injunctive relief in a court as provided in Section 19. The arbitral tribunal shall be composed of a sole arbitrator. The English language shall be used throughout the arbitral proceeding. The arbitration shall take place in Canada Ontario. The cost of the arbitration, including the fees and expenses of the arbitrator and attorney(s), shall be shared equally by the Parties unless that award provides otherwise.
This Agreement may be executed in several counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument. To the extent that this Agreement is translated into any other language, the English language version shall be the authoritative version.
All notices shall be written in English and shall be sent via hand delivery, confirmed facsimile or overnight courier to the Parties at their business addresses or to such other address as either Party may specify by notice to the other pursuant to this Section. A notice shall be regarded as having been given: (i) when delivered, if sent by hand; or (ii) the business day following the date of confirmed transmission, if sent by facsimile and overnight courier on the same day; or (iii) the business day following the date of confirmed delivery, if sent by overnight courier. All notices shall be sent to:
If To: LOTUSTELCO
ATTN: Legal Department
7215 Goreway Dr
Phone: + 16473133361
Fax: +1 64778491074
Rate Modifications: rates@ lotustelco.net
Disputes: billing@ lotustelco.net
Legal: legal@ lotustelco.net
If To: Provider
Pho If To:
Any information which is not in the public domain and which is disclosed between the Parties shall be strictly confidential and shall not be disclosed to any third parties unless otherwise agreed in writing between the Parties. This confidentiality shall remain for a period of 1 years after the termination of this Agreement and its last surviving Annexure. For a period of three (3) years from the date of disclosure thereof, each Party shall maintain the confidentiality of all information or data which is not in the public domain and which is disclosed between the Parties. Each Party shall use the same efforts (but in any case not less than reasonable efforts) to protect the information it receives hereunder as it accords to its own information.
These arrangements regarding confidentiality do not apply to information which:
1. Is known to the general public or which is made known to the public other than by the Parties following the conclusion of this Agreement.
2. was already known by one of the Parties prior to negotiating of the agreement details or was reported by a third party as not being confidential as long as this party, on his part, does not contravene any of its obligations regarding confidentiality or secrecy.
3. Has been independently established and processed by one party irrespective of information provided by the other Party.
4. Is to be disclosed following the introduction of legislation or on account of directives from the authorities or following a court order.
5. Is publicized by mutual agreement of both Parties.
This Agreement shall not prevent any disclosure of information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of this required disclosure. All information provided by any Party to the other hereunder shall be used solely for the purpose for which it is supplied.
24. Service Interruptions, Modifications, and Instructions:
The Parties agree that LOTUSTELCO may, as required and in its sole discretion: temporarily suspend the Services for the purpose of repair, maintenance or improvement of equipment, software or telecommunication services, and any cabinets or ducts enclosing them; vary the technical specification of the Services for operational or regulatory reasons; or give instructions about the use of the Services resulting from any mandatory government laws and regulations that become applicable during the term of this Agreement. Such instructions shall, while they are in force, be deemed to form part of this Agreement. Each party shall also advise the other party of items that are believed to be reasonably necessary in the interests of safety or for improving the quality of the Services. Where such items would result in a degradation of service or a danger if not complied with, then either party reserves the right to introduce them into this Agreement, subject to prior notification.
25. Network Security:
The Parties will cooperate on all issues related to fraud, misuse or damage of data and the network. The Parties will inform each other on the occurrence of such event in due course, exchange all necessary and relevant data, including but not limited to Provider information, and will jointly discuss and work out measures either to prevent or eliminate such fraud, misuse or damage. Each Party’s obligation hereunder to transfer information to the other Party shall not apply to the extent that a Party is prohibited from doing so by relevant security laws. Each Party will strictly comply with the laws and regulations regarding telecommunications Services and data privacy applicable in its respective countries, and will inform the other Party, if and what special treatment of data generated in connection with telecommunications services delivered under this Agreement may be required under such laws and regulations by the other Party. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first written above.
LotusTelco Inc. Company Name:
By: S.Kumar BY:
Print Name: S.Kumar Printed Name:
Title: Director Title:
PROVIDER SERVICE DESCRIPTION & CANADAGE CHARGE SCHEDULE
For traffic termination (i.e. outbound from LOTUSTELCO) the Provider is responsible for the arrangement, installation, operation and payment of the interconnection between the Provider’s network and the LOTUSTELCO Point of Presence (PoP). Such responsibility includes, but is not limited to, special cabling arrangements and any recurring fees, charges or amounts otherwise due. The Parties shall interconnect via carrier ring, meet-me room or other collocation arrangement as may be agreed between the Parties in compliance with Provider network interface procedures.
Provider shall use its best efforts to make the circuit(s) available to LOTUSTELCO on or about the service commencement date. If Provider does not make the circuit(s) available to LOTUSTELCO on or about such date, LOTUSTELCO may cancel this agreement without liability upon written notice to Provider prior to service commencement.
Unless otherwise provided below, rates shall be attached to and are hereby incorporated by reference into this Agreement. The rates contained herein or in any Rate Modification Notice apply to the specific Country-City codes detailed alongside such rates. The Route Descriptions are provided for convenience only. In the event of a discrepancy between the rate applied to a Country-City code and a Route Description, the Country-City code shall govern. He / She start time on the effective dates of the rate changes is 00:00:00 GMT.
Type and Country Code
Rate Per Mins
Pak Telenor Mob
Each rate must have a corresponding Country and City Code pair to which it applies. If different rates apply to cellular and special services (“Special Service Numbers”), it must be specified separately using the applicable Country and Cellular or Special Service Number Code along with the applicable rate. Any subsequent changes to either the rates or applicable codes must be communicated in writing to LOTUSTELCO using Rate Modification Notices.
Unless otherwise stated in the attached Rate Sheet, calls shall be billed in one (1) second increments with a one (1) second minimum. Calls to Mexico shall be billed in 60 second increments with a 60 second minimum. All rates are in US Dollars, per minute, and are subject to change. Per call billing will be calculated by multiplying the time that the call is connected (rounded up to the nearest whole second) by the relevant per-minute rate (rounded up to the nearest 100th of a cent) and rounding the result to the nearest 100th of a cent. Calls will be summarized on a route basis and billed rounded up to the nearest whole pence or cent.
Bank Wire Instructions
Wire Transfer Information:
Bank Name: TD Canada
Address 7205 Goreway Drive Mississauga, Ontario, L4T-2L5 Canada
Beneficiary Name LOTUSTELCO
Swift code TDOMCATTTOR
Transit code 1862
Account Number 7305431
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