Unassociated Document


     

    Exhibit 10.1

     

     

    GENERAL
TERMS

    


     

    


     

    ACN
PACIFIC PTY LTD

    ABN
85 108 535 708

    Level 11,
1 Pacific Hwy, North Sydney

    Australia

    


    


    DELTATHREE,
INC.

    419
Lafayette Street

    New York,
N.Y. 10003

    U.S.A.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE OF
CONTENTS

     

    
      
        
          
            
              
                	
                        1

                      	 	
                        AGREEMENT
      TO SUPPLY THE SERVICE

                      	 	
                        3

                      
	
                        2

                      	 	
                        THE
      SERVICE

                      	 	
                        3

                      
	
                        3

                      	 	
                        EQUIPMENT

                      	 	
                        3

                      
	
                        4

                      	 	
                        MAINTENANCE

                      	 	
                        4

                      
	
                        5

                      	 	
                        SERVICE
      CHARGES

                      	 	
                        4

                      
	
                        6

                      	 	
                        INVOICES,
      PAYMENT AND ADDITIONAL CHARGES

                      	 	
                        4

                      
	
                        7

                      	 	
                        BILLING
      DISPUTES

                      	 	
                        5

                      
	
                        8

                      	 	
                        TAXES

                      	 	
                        6

                      
	
                        9

                      	 	
                        NON-EXCLUSIVE
      RELATIONSHIP

                      	 	
                        6

                      
	
                        10

                      	 	
                        PRIVACY
      AND PERSONAL INFORMATION

                      	 	
                        7

                      
	
                        11

                      	 	
                        COMPLIANCE
      WITH LAWS OR REGULATOR DIRECTIONS

                      	 	
                        7

                      
	
                        12

                      	 	
                        YOUR
      RIGHT TO TERMINATE

                      	 	
                        9

                      
	
                        13

                      	 	
                        DELTATHREE's
      RIGHT TO SUSPEND OR TERMINATE

                      	 	
                        9

                      
	
                        14

                      	 	
                        CONSEQUENCES
      OF SUSPENSION

                      	 	
                        10

                      
	
                        15

                      	 	
                        CONSEQUENCES
      OF TERMINATION (TRANSITION)

                      	 	
                        11

                      
	
                        16

                      	 	
                        EACH
      PARTY’S RIGHTS AGAINST THE OTHER

                      	 	
                        12

                      
	
                        17

                      	 	
                        END
      USERS LIABILITY

                      	 	
                        13

                      
	
                        18

                      	 	
                        INTELLECTUAL
      PROPERTY

                      	 	
                        13

                      
	
                        19

                      	 	
                        CONFIDENTIALITY

                      	 	
                        15

                      
	
                        20

                      	 	
                        INTERVENING
      EVENTS

                      	 	
                        16

                      
	
                        21

                      	 	
                        PUBLIC
      ADDRESSING IDENTIFIERS

                      	 	
                        16

                      
	
                        22

                      	 	
                        ASSIGNMENT,
      SUBCONTRACTING AND TRANSFER

                      	 	
                        16

                      
	
                        23

                      	 	
                        DISPUTES

                      	 	
                        17

                      
	
                        24

                      	 	
                        RECORDS
      & AUDITS

                      	 	
                        17

                      
	
                        25

                      	 	
                        PUBLICITY

                      	 	
                        18

                      
	
                        26

                      	 	
                        NO
      SOLICITATION

                      	 	
                        18

                      
	
                        27

                      	 	
                        GENERAL

                      	 	
                        19

                      
	
                        28

                      	 	
                        DICTIONARY
      TO GENERAL TERMS

                      	 	
                        22

                      


              

            

          

        

      

    

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    
      	
              1

            	
              AGREEMENT
      TO SUPPLY THE SERVICE

            


    

     

    
      	
              1.1

            	
              Subject
      to the terms and conditions set forth in the Agreement, deltathree will
      provide you each Service or Individual Service for its Committed
      Term.

            


    

     

    
      	
              1.2

            	
              The
      Agreement comprises:

            


    

     

    
      	
               
      

            	
              (a)

            	
              each
      relevant Service Description, including Pricing
  Schedule;

            


    

     

    
      	
               
      

            	
              (b)

            	
              the
      General Terms;

            


    

     

    
      	
               
      

            	
              (c)

            	
              each
      relevant Service Level Agreement;

            


    

     

    
      	
               
      

            	
              (d)

            	
              each
      Order;

            


    

     

    
      	
               
      

            	
              (e)

            	
              the
      Operations Manual; and

            


    

     

    
      	
               
      

            	
              (f)

            	
              any
      other document the parties hereto shall agree to from time to time and
      which they agree shall form a part of the
  Agreement.

            


    

     

    
      	
              1.3

            	
              If
      any of the documents listed in clause 1.2 above is inconsistent with one
      or more of the others, then the terms and conditions of the documents will
      prevail in the order set out in clause 1.2 above, unless it is
      specifically agreed otherwise in writing referencing this clause
      1.3.

            


    

     

    
      	
              2

            	
              THE
      SERVICE

            


    

     

    
      	
              2.1

            	
              deltathree
      will supply each Service from its Service Start
  Date.

            


    

     

    
      	
              2.2

            	
              Each
      party will reasonably co-operate with the other party to allow deltathree
      to establish and supply each Service to you safely and
      efficiently.  This includes following deltathree’s reasonable
      requests to provide deltathree’s Personnel with safe and prompt access to
      the Premises and your Personnel, equipment, data and
      information.

            


    

     

    
      	
              3

            	
              EQUIPMENT

            


    

     

    
      	
              3.1

            	
              You
      will supply to End Users (at your sole expense) the equipment at their
      premises which they require to use the Service (“CPE”).

            


    

     

    
      	
              3.2

            	
              You
      will provide deltathree with working samples of the CPE and all reasonably
      requested technical information regarding the CPE and deltathree will
      ensure that its Service is compatible with and provides full functionality
      using the CPE, subject to clause 3.3
below.

            


    

     

    
      	
              3.3

            	
              Where
      any incompatibility or lack of functionality of the Service arises from a
      fault with the CPE or the CPE not functioning in accordance with the CPE
      samples and CPE technical information provided to deltathree, then
      deltathree is not responsible or liable for such incompatibility or lack
      of functionality.

            


    

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    
      	
              4

            	
              MAINTENANCE

            


    

     

    
      	
              4.1

            	
              deltathree
      may conduct regularly scheduled maintenance and emergency maintenance on
      the deltathree Network.  deltathree will use all reasonable
      endeavours to conduct regularly scheduled maintenance outside normal
      business hours (in the time zones in which the End Users are located) but
      may not always be able to do so.  When conducting regularly
      scheduled maintenance deltathree will use reasonable endeavours to provide
      you with 7 Business Days’ notice. D3 will notify you of emergency
      maintenance as soon as practicable.

            


    

     

    
      	
              5

            	
              SERVICE
      CHARGES

            


    

     

    
      	
              5.1

            	
              You
      will pay the charges for each Service as set out in the Agreement without
      any withholding (except as contemplated by clauses 7 and 8 below),
      deduction or set-off and in accordance with any applicable provisions of
      the Service Description.

            


    

     

    
      	
              5.2

            	
              deltathree
      may charge you an additional amount to service, modify, repair or replace
      a Service or any equipment as a result of an Excluded Event (except an
      Intervening Event).

            


    

     

    
      	
              5.3

            	
              If
      agreed between the parties, deltathree may charge you an additional amount
      for installation, maintenance or other services which you request
      deltathree to provide outside normal business hours (in the time zones in
      which the End Users are located) or additional amount for
      installation.

            


    

     

    
      	
              5.4

            	
              deltathree
      may round up any charge to the nearest
cent.

            


    

     

    
      	
              6

            	
              INVOICES,
      PAYMENT AND ADDITIONAL CHARGES

            


    

     

    
      	
              6.1

            	
              deltathree
      may charge you:

            


    

     

    
      	
               
      

            	
              (a)

            	
              for
      any equipment you purchase from deltathree or its Personnel, on or after
      delivery;

            


    

     

    
      	
               
      

            	
              (b)

            	
              for
      any installation charges, prior to or after
  installation;

            


    

     

    
      	
               
      

            	
              (c)

            	
              for
      variable charges, in arrears;

            


    

     

    
      	
               
      

            	
              (d)

            	
              for
      recurring or fixed charges, in arrears;
and

            


    

     

    
      	
               
      

            	
              (e)

            	
              otherwise
      as set out in the Agreement.

            


    

     

    
      	
              6.2

            	
              deltathree’s
      billing period is monthly except where otherwise provided under the
      Agreement.

            


    

     

    
      	
              6.3

            	
              Subject
      to clause 7 (Billing Disputes), you will pay each invoice within 30 days
      from the date of the invoice.

            


    

     

    
      	
              6.4

            	
              deltathree
      will endeavour to include on your invoice all charges for the relevant
      billing period.  As this may not always occur, deltathree may
      include unbilled charges in any later invoice(s) issued up to 90 days
      after the date the unbilled charge
accrued.

            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    
      	
              6.5

            	
              If
      you do not pay any amount invoiced by 30 days from the date of invoice
      (except any amount which is validly disputed under clause 7) the amount
      due under that invoice shall accrue interest at a rate of 2% per annum
      above the Reserve Bank of Australia target cash rate from time to time,
      calculated on the daily balance of the unpaid amount from the due date
      until the date of payment in full.  In the event that such rate
      exceeds the maximum default rate permitted by applicable law, the default
      rate shall be at the highest rate permitted by applicable law. This is an
      independent obligation which applies before and after
      judgment.  You will also pay deltathree’s expenses in recovering
      payment from you.

            


    

     

    
      	
              6.6

            	
              Neither
      you nor deltathree shall have the right to defer, adjust, set off or
      withhold any payment due under these General
  Terms.

            


    

     

    
      	
              6.7

            	
              You
      will pay all charges incurred in respect of each Service in Australian
      Dollars, by direct transfer into the bank account or accounts advised in
      writing by deltathree from time to time. Where deltathree elects a bank
      account outside Australia, deltathree must ensure that such account is
      able to accept Australian Dollars and deltathree shall be responsible for
      all fees, charges and taxes associated with the transfer of the funds to
      the overseas account as well as any currency conversion charges should
      deltathree, or deltathree’s bank, convert Australian Dollars to another
      currency.

            


    

     

    
      	
              7

            	
              BILLING
      DISPUTES

            


    

     

    
      	
              7.1

            	
              You
      may dispute an amount invoiced by deltathree but only if you do so in
      accordance with this clause 7.

            


    

     

    
      	
              7.2

            	
              Except
      to the extent you dispute particular charges and raise a valid billing
      dispute as to an invoice received from deltathree, you will be deemed to
      have agreed that such invoice is fully accurate, valid and payable (and
      you must pay the undisputed amount included in the invoice in accordance
      with clause 6.3 above).

            


    

     

    
      	
              7.3

            	
              To
      raise a valid billing dispute, you
must:

            


    

     

    
      	
               
      

            	
              (a)

            	
              If
      an agreed procedure is set out in the deltathree Billing Dispute
      Resolution Process document, follow that procedure;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              do
      so within 190 days of  the date of the relevant deltathree
      invoice, except in the case of fixed recurring charges where you must do
      so within 60 days of  the date of the relevant deltathree
      invoice.

            


    

     

    
      	
              7.4

            	
              You
      may only commence or continue legal proceedings alleging that any charge
      or invoice is incorrect if you have acted in accordance with clause 7.3
      and legal proceedings have been properly issued and served on deltathree
      within 24 months of the date of the relevant
  invoice.

            


    

     

    
      	
              7.5

            	
              If,
      after a billing dispute is concluded you are to pay an amount to
      deltathree, then you must pay that amount no later than the date (“Payment Date”) which is
      30 days after determination of the dispute.  If you do not do
      so, deltathree may charge you interest on the relevant amount in
      accordance with clause 6.7 from the Payment
  Date.

            


    

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      	
              7.6

            	
              If,
      after a billing dispute is concluded deltathree is to pay an amount to you
      then it will do so by crediting you with that amount on its next and
      subsequent invoices until the full amount has been credited or, if the
      contract has terminated for any reason, no later than the Payment
      Date.

            


    

     

    
      	
              8

            	
              TAXES

            


    

     

    
      	
              8.1

            	
              Charges
      specified in the Agreement do not include any GST.  You will pay
      deltathree an additional amount equal to the GST payable on the charges,
      any non-monetary consideration or on a supply or any component of supply
      made or to be made in connection with a Service or the
      charges.

            


    

     

    
      	
              8.2

            	
              In
      some cases the Agreement may specify a charge followed by another amount
      in parentheses or as 'without GST' and 'with GST'.  In those
      cases, the specified charge or 'without GST' amount is exclusive of GST
      and the amount in parentheses or specified as 'with GST'
    is:

            


    

     

    
      	
               
      

            	
              (a)

            	
              the
      charge inclusive of GST at the rate in effect at the date of the
      Agreement; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              included
      by way of information only, and its inclusion does not limit your
      obligation under clause 8.1 to pay the GST exclusive charge together with
      an additional amount equal to the GST at the rate applicable from time to
      time.

            


    

     

    
      	
              8.3

            	
              If
      you are required by law to deduct or withhold Taxes from a payment to
      deltathree, then you may make those deductions or withholdings (or
      both).  However, you will give deltathree a receipt for each
      payment and you will increase your payment to deltathree by the amount
      necessary to ensure deltathree receives the full amount which it would
      have received if no deduction or withholding had been
  made.

            


    

     

    
      	
              8.4

            	
              If
      clause 8.3 applies, then deltathree will on request by you apply for any
      credit or rebate to which it may be entitled in connection with the
      deduction or withheld Tax.  deltathree will refund to you any
      credit or rebate received, up to the amount of the increase made by you
      under clause 8.3.

            


    

     

    
      	
              8.5

            	
              deltathree
      will ensure it is properly registered for GST and will issue you with a
      valid tax invoice in respect of each taxable
  supply.

            


    

     

    
      	
              8.6

            	
              Terms
      used in this clause 8 which are defined in the A New Tax System (Goods and
      Services Tax) Act 1999 (Cth) have the meaning given to them in that
      Act.

            


    

     

    
      	
              9

            	
              NON-EXCLUSIVE
      RELATIONSHIP

            


    

     

    
      	
              9.1

            	
              deltathree
      and you agree that the relationship between the parties is non-exclusive
      and you may obtain Services and Individual Services from suppliers other
      than deltathree and deltathree may provide Services and Individual
      Services to purchasers other than ACN
Pacific.

            


    

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      	
              10

            	
              PRIVACY
      AND PERSONAL INFORMATION

            


    

     

    
      	
              10.1

            	
              deltathree
      may collect, use and disclose Personal Information provided by you for
      purposes relating to the supply of a Service described in the Agreement,
      or for purposes that would be reasonably expected as part of the supply of
      the Service.

            


    

     

    
      	
              10.2

            	
              deltathree
      must not disclose Personal Information provided by you to any person other
      than its Personnel, except deltathree may disclose Personal Information to
      deltathree’s suppliers (so that deltathree can supply a Service) or as
      permitted by the Privacy Laws or other
laws.

            


    

     

    
      	
              10.3

            	
              You
      must not disclose Personal Information provided by deltathree to any
      person other than your Personnel, except as permitted by the Privacy Laws
      or other laws.

            


    

     

    
      	
              10.4

            	
              Both
      parties must take all reasonable steps to protect Personal Information
      provided by the other party from misuse and loss and from unauthorised
      access, modification or disclosure.

            


    

     

    
      	
              10.5

            	
              Both
      parties agree to handle Personal Information obtained from the other party
      in accordance with the Privacy
Laws.

            


    

     

    
      	
              10.6

            	
              In
      your privacy collection statements you must notify the natural persons
      from whom you collect Personal Information that their Personal Information
      may be provided to your suppliers for the purpose of supplying a
      Service.

            


    

     

    
      	
              10.7

            	
              For
      the purposes of this clause a reference to a “party” or “supplier”
      includes its agents and
contractors.

            


    

     

    
      	
              11

            	
              COMPLIANCE
      WITH LAWS OR REGULATOR DIRECTIONS

            


    

     

    
      	
              11.1

            	
              deltathree
      and you will comply with all applicable federal, state, and local
      government rules which have the force of law, including, without
      limitation, all statutes, laws, ordinances and regulations, and all other
      laws of any other jurisdiction applicable to the performance of such
      party’s obligations under this Agreement (“Laws”) in connection
      with the exercise of its rights and performance of its obligations under
      this Agreement.

            


    

     

    
      	
              11.2

            	
              You
      are solely responsible for:

            


    

     

    
      	
               
      

            	
              (a)

            	
              ensuring
      you have all necessary consents, licences and authorisations to resupply
      each Service to End Users, including consents and authorisations from End
      Users, Suppliers and other carriage service providers;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              informing
      your End Users that, where a Service is a Carriage Service, deltathree may
      be required to intercept communications over the Service and may also
      monitor your usage of the Service and communications sent over
      it.

            


    

     

    
      	
              11.3

            	
              deltathree
      is solely responsible for:

            


    

     

    
      	
               
      

            	
              (a)

            	
              ensuring
      it has all necessary consents, licences and authorisations to supply each
      Service to you, including consents and authorisations from Regulators,
      Suppliers and other carriage service
providers;

            


    

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              ensuring
      that, where a Service is a carriage service, deltathree is able to
      intercept and monitor communications over the Service where required by a
      law enforcement agency; and

            


    

     

    
      	
               
      

            	
              (c)

            	
              ensuring
      that it and each Service it supplies complies with all relevant Laws and
      relevant industry codes (whether registered with a Regulator or not)
      (“Industry
      Codes”), the directions of a Regulator and other regulatory
      instruments.

            


    

     

    
      	
              11.4

            	
              deltathree
      acknowledges, without representing or warranting, that it is a carriage
      service provider under the Telecommunications Act
      1997 and, in certain instances, you rely on deltathree in order to
      comply with Laws and Industry Codes, and agrees that (except as you
      expressly instruct) it shall not commit any act or omission that places
      you in violation of any Law or Industry
Code.

            


    

     

    
      	
              11.5

            	
              In
      using a Service, you and deltathree will comply with directions of a
      Regulator and each party will use its best efforts to assist the other
      party in complying with directions of a
  Regulator.

            


    

     

    
      	
              11.6

            	
              It
      is a condition of this Agreement that neither you nor deltathree will use,
      nor attempt to use, a Service and you will use all reasonable endeavours
      to prevent your End Users using or attempting to use, a
      Service:

            


    

     

    
      	
               
      

            	
              (a)

            	
              to
      violate any Law or to infringe another person’s
  rights;

            


    

     

    
      	
               
      

            	
              (b)

            	
              to
      expose either party to liability;

            


    

     

    
      	
               
      

            	
              (c)

            	
              to
      transmit, publish or communicate material which is defamatory, offensive,
      abusive, indecent, menacing or unwanted;
or

            


    

     

    
      	
               
      

            	
              (d)

            	
              in
      any way which damages, interferes with or Interrupts the Service, the
      deltathree Network or a Supplier
Network.

            


    

     

    
      	
              11.7

            	
              deltathree
      may ask you to stop, or ask you to stop your End-Users, acting or failing
      to act in a manner which deltathree reasonably believes is contrary to
      clauses 11.2 or 11.6.  You will as soon as reasonably
      practicable (but in any case within two Business Days) comply with any
      such request.  If you do not, then deltathree may take any steps
      reasonably necessary to ensure compliance with clauses 11.2 or 11.6 or the
      request.

            


    

     

    
      	
              11.8

            	
              Notwithstanding
      anything to the contrary in this Agreement, if a material breach of this
      agreement by either party relates to compliance with laws or Regulator
      directions then both parties will mutually review the breach and seek
      commercially reasonable methods of overcoming the breach if possible. Both
      parties will then evaluate the options, and if there is a way to overcome
      the breach utilizing commercially reasonable methods, then (i) both
      parties will initiate such actions, and (ii) upon written agreement by the
      parties, an equitable adjustment for any delays and changes in scope or
      quality of services caused by such breach shall be made by the defaulting
      party if such change materially affects the time or quality of performance
      or the cost of the Services to be performed under this
      Agreement.  If the parties fail to cure such a material breach
      of Laws or Regulator directions within sixty (60) days after written
      notice of non-compliance, the non-defaulting party may terminate the
      Agreement or affected Service by providing written notice to the other
      party.

            


    

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    
      	
              12

            	
              YOUR
      RIGHT TO TERMINATE

            


    

     

    
      	
              12.1

            	
              You
      may, without liability, terminate the Agreement or one or more Services or
      Individual Services:

            


    

     

    
      	
               
      

            	
              (a)

            	
              at
      any time by giving at least 120 days' notice to
  deltathree;

            


    

     

    
      	
               
      

            	
              (b)

            	
              by
      giving 30 days notice in the event that you and deltathree cease to be
      Related Corporations;

            


    

     

    
      	
               
      

            	
              (c)

            	
              immediately
      by giving deltathree notice if:

            


    

     

    
      	
               
      

            	
              (i)

            	
              except
      as set forth in clause 11.8, deltathree breaches a fundamental term of the
      Agreement and that breach is not capable of remedy or that breach is
      capable of remedy and deltathree does not remedy that breach as soon as
      possible but in all circumstances no later than 14 days after you give
      deltathree notice requiring the breach to be
  remedied;

            


    

     

    
      	
               
      

            	
              (ii)

            	
              deltathree
      suffers an Insolvency Event;

            


    

     

    
      	
               
      

            	
              (iii)

            	
              that
      Service or Individual Service which is to be terminated is not being
      supplied and that non-supply has continued for more than 10 Business Days
      as a result of an Intervening Event having occurred;
  or

            


    

     

    
      	
               
      

            	
              (iv)

            	
              that
      Individual Service which is to be terminated is no longer required because
      of the termination or cancellation of an End User
  Service.

            


    

     

    
      	
              13

            	
              DELTATHREE's
      RIGHT TO SUSPEND OR TERMINATE

            


    

     

    
      	
              13.1

            	
              deltathree
      may, without liability, Suspend a Service or one or more Individual
      Services:

            


    

     

    
      	
               
      

            	
              (a)

            	
              if
      deltathree reasonably believes that you or any other person (except
      deltathree) has committed or is about to imminently commit fraud in
      connection with either the Service or the Individual Service and you fail
      to take steps (to deltathree's satisfaction) to ensure that fraud does not
      continue or recur within 48 hours after deltathree gives you notice
      requiring you to do so;

            


    

     

    
      	
               
      

            	
              (b)

            	
              by
      giving you notice to the extent necessary for deltathree to comply with an
      order, instruction or request of a Regulator, an emergency services
      organisation or any other competent
authority;

            


    

     

    
      	
               
      

            	
              (c)

            	
              immediately
      by giving you notice if you have not complied with a notice from
      deltathree issued in accordance with clause 11.7 relating to that Service
      or Individual Service;

            


    

     

    
      	
               
      

            	
              (d)

            	
              immediately
      to the extent the Service is affected by an Emergency;
  or

            


    

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (e)

            	
              immediately
      to the extent it is necessary to allow deltathree or a Supplier to repair,
      maintain or service any part of the deltathree Network or a Supplier
      Network used to supply the Service or the Individual
    Service.

            


    

     

    
      	
              13.2

            	
              deltathree
      may, without liability, terminate the Agreement or Suspend or terminate
      one or more Services or Individual
Services:

            


    

     

    
      	
               
      

            	
              (a)

            	
              At
      any time by giving at least 120 days' notice to
  you;

            


    

     

    
      	
               
      

            	
              (b)

            	
              immediately
      if any amount owing to deltathree is not paid by its due date (as
      specified in the Agreement, the relevant invoice or as notified by
      deltathree), deltathree gives you notice requiring payment of that amount
      (which deltathree may not give in respect of an amount which is validly
      disputed in accordance with clause 7 (Billing Disputes) until after
      deltathree has determined the billing dispute) and you fail to pay that
      amount in full within 30 days after deltathree gives you that
      notice;

            


    

     

    
      	
               
      

            	
              (c)

            	
              except
      as set forth in clause 11.8, you breach clause 11.2 or any other
      fundamental term of the Agreement (other than a breach which separately
      gives rise to rights under this clause 13.2) and that breach is not
      capable of remedy, or

            


    

     

    
      	
               
      

            	
              (d)

            	
              except
      as set forth in clause 11.8, you breach clause 11.2 or any other
      fundamental term of the Agreement (other than a breach which separately
      gives rise to rights under this clause 13.2), that breach is capable of
      remedy and you do not remedy that breach as soon as possible but in all
      circumstances no later than 14 days after deltathree gives you notice
      requiring the breach to be
remedied;

            


    

     

    
      	
               
      

            	
              (e)

            	
              immediately
      if you suffer an Insolvency Event;

            


    

     

    
      	
               
      

            	
              (f)

            	
              immediately
      if that Individual Service which is to be terminated is not being supplied
      and that non-supply has continued for more than 10 Business Days as a
      result of an Intervening Event having occurred;
  or

            


    

     

    
      	
               
      

            	
              (g)

            	
              if
      deltathree is otherwise entitled to do so under this
      Agreement.

            


    

     

    
      	
              14

            	
              CONSEQUENCES
      OF SUSPENSION

            


    

     

    
      	
              14.1

            	
              If
      a Service or an Individual Service is Suspended in accordance with the
      Agreement, then you will not be liable to pay usage based charges for the
      Service or the Individual Service while it is Suspended, but you will have
      to pay any other charges arising during suspension if the Service or
      Individual Service was Suspended as a result of a breach of the Agreement
      by you or as a result of the occurrence of any of the events set forth in
      clauses 13.1 (a) or (c) or clauses 13.2(b), (c) or
  (d).

            


    

     

    
      	
              14.2

            	
              If
      deltathree Suspends or Downgrades a Service or an Individual Service under
      clause 13.1 (d) and such suspension or Downgrade is not due to an
      Intervening Event, the period during which the Service or an Individual
      Service is Suspended will count towards outage time used in calculating
      service level rebates (if any) applicable to the affected Service or
      Individual Service.

            


    

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
      	
              14.3

            	
              deltathree
      will stop the suspension of a Service or Individual Service as soon as
      reasonably possible after the reason for that suspension has stopped in
      the reasonable opinion of
deltathree.

            


    

     

    
      	
              15

            	
              CONSEQUENCES
      OF TERMINATION (TRANSITION)

            


    

     

    
      	
              15.1

            	
              On
      Termination you will retain all rights to the affected End Users and Delta
      3 will have no rights in relation to the affected End Users except in
      accordance with the transition provisions in this clause
    15.

            


    

     

    
      	
              15.2

            	
              On
      Termination deltathree must not, except in accordance with the transition
      provisions in this clause 15, solicit any End User in Australia or New
      Zealand for a period of 2 years. The term “solicit” shall not be deemed to
      include generalized advertising or marketing by deltathree for customer
      through mass market media advertisements or other non-targeted
      means.

            


    

     

    
      	
              15.3

            	
              Notice
      of Termination of the Agreement or all Services provided under the
      Agreement by either party will commence a period (the “Transition Period”)
      during which the parties will cooperate in transitioning all End Users to
      replacement services provided by you or your designee (the “Replacement
      Service”).  deltathree during the Transition Period will
      create a configuration file for each model of CPE then in use by End
      Users, which configuration file will point such CPE to the Replacement
      Service and grant the Replacement Service full access to and control over
      such CPE, and will deploy such configuration files remotely to End Users
      over the course of the Transition Period in accordance with the schedule
      reasonably established by you.  As quickly as reasonably
      practicable during the Transition Period, you will arrange for a
      Replacement Service, arrange to port End User phone numbers to the
      Replacement Service and otherwise transition the End Users to the
      Replacement Service.  The Transition Period shall continue until
      the earlier of the date on which all End Users have been removed from the
      applicable Service and the date fourteen (14) months following the notice
      of Termination.  This Agreement, including your obligation to
      pay fees and charges pursuant to this Agreement, will remain in effect
      throughout the Transition Period.

            


    

     

    
      	
              15.4

            	
              At
      any time and from time to time during a Transition Period, on receipt of a
      request from you deltathree will, as soon as possible and in any case
      within 72 Business Hours, provide an up to date copy of all data held by
      deltathree in relation to the End Users in a format and manner reasonably
      specified by you plus any other information reasonably requested by you
      which will assist in the transition of the End Users to Replacement
      Services.

            


    

     

    
      	
              15.5

            	
              Once
      an End User has been successfully transitioned to a Replacement Service,
      deltathree must, to the extent permitted by law, delete and permanently
      remove all copies to data relating to that End User which is in
      deltathree’s custody and control.

            


    

     

    
      	
              15.6

            	
              On
      Termination

            


    

     

    
      	
               
      

            	
              (a)

            	
              of
      the Agreement or all Services provided under the Agreement for any reason,
      each party will (on request by the other party) immediately return or
      destroy the other person’s Confidential Information, except to the extent
      that it is required by law to retain
it;

            


    

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              of
      the Agreement for any reason, each person’s accrued rights and obligations
      are not affected and the parts of the Agreement which are by their nature
      intended to survive Termination of the Agreement will do
    so.

            


    

     

    
      	
              16

            	
              EACH
      PARTY’S RIGHTS AGAINST THE OTHER

            


    

     

    
      	
              16.1

            	
              Each
      party accepts liability to the other in connection with the Individual
      Services, the Services and the Agreement, but only to the extent provided
      in this clause 16.  Each party excludes any liability (including
      in negligence) it might otherwise have to the other in connection with
      this Agreement, the Services or any Individual Service to the extent that
      such liability is not expressly accepted under this clause
    16.

            


    

     

    
      	
              16.2

            	
              Each
      party agrees to indemnify, defend and hold the other party harmless for
      all Loss to the other party arising from personal injury to the other
      party’s Personnel to the extent it is caused directly by the negligence of
      the first party in connection with the Agreement.  The
      limitation in clause 16.8 does not apply to this
  clause.

            


    

     

    
      	
              16.3

            	
              Each
      party agrees to indemnify, defend and hold the other party harmless for
      all Loss (up to the value of the damage to the damaged property) arising
      from damage to the other party’s physical property to the extent it is
      caused directly by the negligence of the first party in connection with
      the Agreement.  The limitation in clause 16.8 does not apply to
      this clause.

            


    

     

    
      	
              16.4

            	
              Each
      party’s liability for the other party’s Loss (including arising as a
      result of negligence) under clause 16.2 or 16.3 or, except where clause 17
      applies, otherwise in connection with the Individual Services, the
      Services or the Agreement is reduced to the extent
  that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              a
      Loss suffered or incurred by the other party could have been avoided or
      mitigated by reasonable action by that party;
  and

            


    

     

    
      	
               
      

            	
              (b)

            	
              acts
      or omissions of the other party or its Personnel cause or contribute to
      that Loss.

            


    

     

    
      	
              16.5

            	
              deltathree
      accepts liability to you under the Trade Practices Act and other laws
      where not to accept such liability would be illegal or would make any part
      of this clause 16 void or unenforceable.  Otherwise, deltathree
      disclaims and excludes all conditions and warranties implied into the
      Agreement and limits its liability for any non-excludable conditions and
      warranties, where permitted by law to do so, to (at deltathree’s option)
      repairing or replacing the relevant goods, resupplying the relevant or
      equivalent services or, in either case, paying you the cost of doing
      so.

            


    

     

    
      	
              16.6

            	
              deltathree
      accepts liability to you for Loss arising from Interruptions to Individual
      Services and the Services (including for Interruptions due to negligence)
      to the extent the Interruptions are not caused or contributed to by
      Excluded Events, but only:

            


    

     

    
      	
               
      

            	
              (a)

            	
              by
      crediting to you a service rebate, where one is specified in the relevant
      Service Level Agreement and validly claimed by you in accordance with the
      Agreement; or

            


    

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              if
      there is no service rebate so specified, by (at deltathree's election)
      repairing or replacing the relevant goods or resupplying any relevant or
      equivalent services which are capable of being resupplied, or in either
      case paying you the cost of doing
so.

            


    

     

    If
deltathree credits you with a service rebate, this is your sole remedy for
deltathree's acts or omissions leading up to the credit, except to the extent
clauses 16.2 and 16.3 apply.

     

    
      	
              16.7

            	
              Except
      for claims under clauses 16.2, 16.3, 17, 18, claims arising from a breach
      of clause 11.2 and obligations to pay outstanding charges, each party’s
      aggregate liability arising out of this Agreement to the other for Loss
      suffered or incurred in connection with the Individual Services, the
      Services or the Agreement is limited to the lesser of (i) the total
      amounts received by deltathree from you under this Agreement or (ii) AU $5
      million.

            


    

     

    
      	
              16.8

            	
              Except
      for claims under clauses 16.2, 16.3 and 17, claims arising from a breach
      of clause 11.2 and obligations to purchase a Service or Individual
      Services or pay outstanding charges, each party excludes any liability to
      the other for any Consequential Loss suffered or incurred in connection
      with the Individual Services, the Services or with the Agreement
      (including liability for
negligence).

            


    

     

    
      	
              16.9

            	
              In
      this clause 16 and clause 17, indemnities, limitations and exclusions in
      favour of a party are to be construed as indemnities, limitations and
      exclusions in favour of each Group Company of that
  party.

            


    

     

    
      	
              16.10

            	
              For
      the avoidance of doubt, the terms and conditions set forth in clauses 18.8
      and 18.9 apply to the indemnities given in this clause
  16.

            


    

     

    
      	
              17

            	
              END
      USERS LIABILITY

            


    

     

    
      	
              17.1

            	
              deltathree
      excludes any liability (including in negligence) to your End
      Users.  You agree to indemnify, defend and hold deltathree
      harmless against any Loss suffered or incurred by deltathree in connection
      with an End-User claim (including a claim based in negligence) in any way
      related to an Individual Service, the Services or the
      Agreement.

            


    

     

    
      	
              17.2

            	
              For
      the avoidance of doubt, the terms and conditions set forth in clauses 18.8
      and 18.9 apply to the indemnities given in this clause
  17.

            


    

     

    
      	
              18

            	
              INTELLECTUAL
      PROPERTY

            


    

     

    
      
        	
                18.1

              	
                deltathree
      may permit you to use deltathree Intellectual Property as part of a
      Service, as may be set forth in a Service Description.  This
      permission is subject to any conditions which deltathree may impose from
      time to time and will cease when the relevant Service or this Agreement is
      terminated.  You acknowledge and agree that you will not use
      deltathree Intellectual Property, except as set out in this Agreement,
      unless authorised to do so in writing by
  deltathree.

              


      

    

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
              18.2

            	
              Except
      as specifically set out in this Agreement, neither party will obtain any
      interest in or to the other party's Intellectual Property Rights solely by
      access to or use of the same related to this
  Agreement.

            


    

     

    
      
        	
                18.3

              	
                Except
      as permitted in a Service Description, you
must:

              


      

    

     

    
      	
               
      

            	
              (a)

            	
              not
      grant a right to any third person, including an End User, to use any
      deltathree Intellectual Property;
and

            


    

     

    
      	
               
      

            	
              (b)

            	
              ensure
      that your End Users do not use or promote deltathree Intellectual
      Property, the trade marks or names of any other person in conjunction or
      association with the deltathree Intellectual Property without the prior
      written consent of deltathree.

            


    

     

    
      
        	
                18.4

              	
                You
      must not, whether by yourself, your directors, servants or agents, during
      the Committed Term of this Agreement or after its
    Termination:

              


      

    

     

    
      	
               
      

            	
              (a)

            	
              dispute
      deltathree’s, or any deltathree Related Corporations’, rights in or
      ownership of any  deltathree Intellectual
    Property;

            


    

     

    
      	
               
      

            	
              (b)

            	
              challenge
      the validity of a registration in the name of deltathree, or a Related
      Corporation of deltathree, of deltathree Intellectual Property;
      or

            


    

     

    
      	
               
      

            	
              (c)

            	
              challenge
      any application by deltathree or a Related Corporation of deltathree for
      registration of the deltathree Intellectual Property in classes other than
      those in which that the deltathree Intellectual Property is currently
      registered.

            


    

     

    
      
        	
                18.5

              	
                If
      you become aware of any possible infringement of deltathree Intellectual
      Property by you, an End User or any other third party, you must
      immediately advise deltathree and provide deltathree with all relevant
      details.

              


      

    

     

    
      
        	
                18.6

              	
                Subject
      to the terms of this Agreement, you agree to indemnify, defend and hold
      deltathree and any deltathree Group Company harmless for all Loss arising
      from any claim or proceeding by any person against any of those
      indemnified under this clause, where such Loss arose out of your breach of
      this clause 18 or an infringement, or an alleged infringement, of the
      Intellectual Property Rights of deltathree which occurred by or as a
      result of your use or enjoyment of the
Services.

              


      

    

     

    
      
        	
                18.7

              	
                deltathree
      agrees to defend, indemnify and hold you and any ACN Pacific Group Company
      harmless from and against any claim brought by a third party against you
      to the extent that the claim includes a claim of any infringement of any
      Intellectual Property Rights or other proprietary interest of such third
      party arising from or relating to the deltathree Services or your use,
      deployment or sale thereof as contemplated by this Agreement; and all
      Losses relating thereto excluding Consequential
      Loss.   Notwithstanding the foregoing, deltathree shall not
      be obligated or liable to defend or indemnify ACN Pacific or any ACN
      Pacific Group Company and shall not be responsible for any Loss related
      thereto under this Agreement to the extent that any such claim arises from
      (i) ACN Pacific’s or a third party’s modification of the deltathree
      Services without the express written consent of deltathree, (ii)
      combination of the deltathree Services with services, products, processes
      or materials not furnished, specified or approved by Deltathree; or (iii)
      deltathree’s use of or adherence to specifications or instructions
      furnished to deltathree by ACN Pacific to the extent that such
      specifications or instructions result in
  infringement.

              


      

    

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    
      
        	
                18.8

              	
                The
      indemnified party shall promptly notify the indemnifying party in writing
      of any claim for which the indemnifying party is responsible under this
      indemnity obligation (provided that the failure by the indemnified party
      to provide prompt written notice shall not relieve the indemnifying party
      from any of its obligations hereunder, except to the extent the
      indemnifying party is actually prejudiced
  thereby).

              


      

    

     

    
      
        	
                18.9

              	
                The
      indemnifying party shall assume, at its expense, the sole defence of the
      claim through counsel selected by the indemnifying party and shall keep
      the indemnified party fully informed as to the progress of such
      defence.  Upon reasonable request of the indemnifying party and
      at the indemnifying party’s expense, the indemnified party shall cooperate
      in the defence of the claim.  At its option and expense, the
      indemnified party may retain or use separate counsel to represent it,
      including in-house counsel.  The indemnifying party shall
      maintain control of the defence, except that if the settlement of a claim
      would adversely affect the indemnified party, the indemnifying party may
      settle the claim as to the indemnified party only with the indemnified
      party’s consent, which consent shall not be withheld or delayed
      unreasonably.  If the indemnified party is required to take any
      action to enforce its indemnity rights under this Agreement, or to assume
      the defence of any claim for which it is entitled to receive an indemnity
      under this Agreement because of the indemnifying party’s failure to
      promptly assume such defence, then the indemnified party may also recover
      from the indemnifying party any reasonable attorneys’ fees (including cost
      of in-house counsel at market rates for attorneys of similar experience)
      and other costs of enforcing its indemnity rights or assuming such
      defence.

              


      

    

     

    
      	
              19

            	
              CONFIDENTIALITY

            


    

     

    
      	
              19.1

            	
              deltathree
      and you each agree to keep confidential the other’s Confidential
      Information.

            


    

     

    
      	
              19.2

            	
              Subject
      to clause 19.3, deltathree and you will not use or disclose the other’s
      Confidential Information for any purpose, other than to the extent
      necessary to perform its obligations or exercise its rights under the
      Agreement.  This includes deltathree not disclosing any
      information relating to your End Users to deltathree Personnel, except to
      the extent that it is necessary to do so to supply a Service to you, or
      for you to resupply a Service to your End
Users.

            


    

     

    
      	
              19.3

            	
              For
      clarity, deltathree may refer to you as a customer of deltathree in
      deltathree press releases, or in deltathree marketing, sales or financial
      material or reports.

            


    

     

    
      	
              19.4

            	
              The
      obligations of confidentiality in this clause 19 do not apply to the
      extent disclosure is required by a court of competent jurisdiction or
      other governmental authority or as otherwise required by law or the
      listing rules of a stock exchange, a direction by government authority or
      a Regulator, or disclosure to professional advisors in connection with the
      Agreement.

            


    

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    
      	
              20

            	
              INTERVENING
      EVENTS

            


    

     

    
      	
              20.1

            	
              If
      an Intervening Event occurs which prevents you or deltathree (“Affected Person”) from
      performing any of its obligations (other than an obligation to pay money)
      under this Agreement, then the Affected Person will not be liable for
      failing to perform that obligation.

            


    

     

    
      	
              20.2

            	
              The
      Affected Person will notify the other person promptly of the Intervening
      Event and use its best efforts to resume performance in accordance with
      the Agreement as soon as reasonably possible.  The other
      person’s obligations continue during the Intervening
      Event.

            


    

     

    
      	
              21

            	
              PUBLIC
      ADDRESSING IDENTIFIERS

            


    

     

    
      	
              21.1

            	
              A
      Service may include one or more identifiers such as a telephone number, IP
      address or domain name (“Public Addressing
      Identifiers”).

            


    

     

    
      	
              21.2

            	
              You
      will comply with the requirements of any Regulator or other body which
      administers Public Addressing
Identifiers.

            


    

     

    
      	
              21.3

            	
              You
      acknowledge and agree that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              deltathree
      does not control the allocation of Public Addressing
      Identifiers;

            


    

     

    
      	
               
      

            	
              (b)

            	
              deltathree
      is not liable to you if deltathree is required to change any Public
      Addressing Identifier as a result of any direction given by a Regulator or
      other body which administers Public Addressing Identifiers;
      and

            


    

     

    
      	
               
      

            	
              (c)

            	
              on
      Termination of a Service or any relevant Individual Service, your right to
      use any related Public Addressing Identifier may
  cease.

            


    

     

    
      	
              22

            	
              ASSIGNMENT,
      SUBCONTRACTING AND TRANSFER

            


    

     

    
      	
              22.1

            	
              To
      the extent they are assignable, either party may assign, delegate or
      otherwise transfer its rights under the Agreement so long as it has the
      other party’s prior written consent, which cannot be unreasonably delayed
      or withheld.

            


    

     

    
      	
              22.2

            	
              deltathree
      may perform any of its obligations under the Agreement by arranging for
      them to be performed by another person, including a Supplier or another
      deltathree Group Company.  If this occurs deltathree remains
      responsible for its obligations in accordance with this
      Agreement.

            


    

     

    
      	
              22.3

            	
              deltathree
      will continue supplying the Services even if any interest in you,
      including your business or any of your shares, is transferred to a third
      party (“Purchaser”) provided
      that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              you
      notify deltathree of the details of the proposed transfer, before entering
      into any binding arrangement to give effect to
  it;

            


    

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              you
      and/or the proposed Purchaser comply with any reasonable requests from
      deltathree for financial or operational information demonstrating the
      creditworthiness of the Purchaser;

            


    

     

    
      	
               
      

            	
              (c)

            	
              you
      and/or the proposed Purchaser enter into any necessary assignment or
      novation which deltathree reasonably requests in the circumstances, within
      30 days of that request.

            


    

     

    
      	
              23

            	
              DISPUTES

            


    

     

    
      	
              23.1

            	
              This
      clause applies to any dispute arising under the Agreement except billing
      disputes (which are handled in accordance with clause
  7).

            


    

     

    
      	
              23.2

            	
              A
      party must notify the other if it believes a dispute exists and that
      notice must provide details of the matter in
  dispute.

            


    

     

    
      	
              23.3

            	
              After
      receipt of the notice set out in clause 23.2, the parties will promptly
      seek to resolve the dispute by escalation within their respect
      organisations.

            


    

     

    
      	
              23.4

            	
              If
      the dispute has not been resolved within 20 Business Days after the notice
      in clause 23.2 is given either of the parties may refer the dispute for
      mediation to the Institute of Arbitrators and Mediators
      Australia.

            


    

     

    
      	
              23.5

            	
              Except
      where urgent interlocutory relief is required, a party may not commence
      legal proceedings in relation to any dispute unless it has complied with
      this clause 23 and the dispute has not been resolved within 50 Business
      Days after the notice in clause 23.2 is
given.

            


    

     

    
      	
              24

            	
              RECORDS
      & AUDITS

            


    

     

    
      	
              24.1

            	
              deltathree
      will maintain complete and accurate records related to the Services
      provided by deltathree to you, including records of all amounts billable
      to and payments made by you in accordance with generally accepted
      accounting principles applicable to U.S. corporations, uniformly and
      consistently applied in a format that will permit
  audit.

            


    

     

    
      	
              24.2

            	
              deltathree
      will retain such records and reasonable billing detail for a period of at
      least seven (7) years from the date of final payment for
      Services.

            


    

     

    
      	
              24.3

            	
              You
      may at your sole expense, upon reasonably prior written notice to
      deltathree, audit during normal business hours the charges invoiced to you
      relating to the Services, such audit to occur no more frequently than one
      time per fiscal quarter. deltathree shall have the right to exclude from
      such inspection any of information that is confidential or proprietary to
      a third party, in deltathree’s reasonable
  opinion.

            


    

     

    
      	
              24.4

            	
              deltathree
      will report minute usage and other relevant information, which shall be
      provided by deltathree to you, on a daily and monthly basis, as more
      particularly described in the relevant Service
  Schedule.

            


    

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    
      	
              25

            	
              PUBLICITY

            


    

     

    
      	
              25.1

            	
              Neither
      you nor deltathree shall provide copies of the Agreement, or otherwise
      disclose the terms of this Agreement, to any third party (other than the
      parties’ lawyers, accountants/auditors, and/or anyone the party is
      required to disclose it to by law) without the prior written consent of
      the other party, provided, that no consent will be required for either
      party to disclose the terms of this Agreement to a potential lender,
      investor, acquirer or other similar third party, or such third party’s
      lawyers, accountants and advisors, in connection with such third party’s
      due diligence review.

            


    

     

    
      	
              25.2

            	
              Except
      as required by law and except as provided in Clause 19.3 above, neither
      you nor deltathree shall not use the other party’s names or any language,
      pictures, trademarks, service marks or symbols which could imply its
      identity or endorsement in any:

            


    

     

    
      	
               
      

            	
              (a)

            	
              written,
      electronic or oral advertising or presentation;
  or

            


    

     

    
      	
               
      

            	
              (b)

            	
              brochure,
      newsletter, book, electronic database or other written matter of whatever
      nature, without such party’s prior written
  consent.

            


    

     

    Hereafter
the terms in subsections (a) and (b) of this clause 25.2 shall be collectively
referred to as “Publicity
Matters”.

     

    
      	
              25.3

            	
              The
      using party will submit to the other party for written approval, prior to
      publication, all Publicity Matters that mention or display such names,
      trademarks or service marks, or that contain any symbols, pictures or
      language from which a connection to said names or marks may be inferred or
      implied. Such written approval of Publicity Matters required by law shall
      not be unreasonably withheld or
delayed.

            


    

     

    
      	
              25.4

            	
              Notwithstanding
      the foregoing, a party may, without obtaining the other party’s prior
      written consent, include the other’s name, and a factual description of
      the work performed under the Agreement on employee bulletin boards and in
      internal business planning documents and, following the public issuance of
      the press release referred to in Clause 25.5 below, such information may
      be included in reports to stockholders, offering memoranda and other
      securities disclosure documents and whenever necessary to meet legal,
      accounting or regulatory
requirements.

            


    

     

    
      	
              25.5

            	
              Promptly
      following the execution of this Agreement by both you and deltathree,
      either party may issue a press release approved by the other party (such
      approval shall not be unreasonably withheld.  Any press release
      or public announcement shall be consistent with the need to restrict
      general public awareness of the role of your vendors in your branded
      service such as the Services.

            


    

     

    
      	
              26

            	
              NO
      SOLICITATION

            


    

     

    
      	
              26.1

            	
              During
      such time as deltathree provides Services to you and for a period of
      twelve (12) months following the Termination thereof, neither you nor
      deltathree will, directly or indirectly, solicit to employ or hire any
      employee of the other party that is directly or indirectly involved in the
      performance of the Services, without the prior written consent of the
      other party.  The term “solicit to employ” shall not be deemed
      to include generalized searches or hiring by either Party for employees
      through media advertisements, employment firms or
    otherwise.

            


    

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    
      	
              27

            	
              GENERAL

            


    

     

    
      	
              27.1

            	
              Every
      notice under or in connection with the
  Agreement:

            


    

     

    
      	
               
      

            	
              (a)

            	
              must
      be in writing (except where expressly stated
  otherwise);

            


    

     

    
      	
               
      

            	
              (b)

            	
              must
      be addressed as follows (or as otherwise notified from time to
      time)

            


    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	 	
                                      Name:

                                    	 	
                                      ACN Pacific Pty
      Ltd

                                    
	 	
                                      Address:

                                    	 	
                                      Level
      11, 1 Pacific Highway, North Sydney, 

                                      NSW,
      Australia, 2060

                                    
	 	
                                      Fax:

                                    	 	
                                      +61
      2 8214 4111

                                    
	 	
                                      email:

                                      For
      the attention of:

                                    	 	
                                      iain.falshaw@acnaustralia.com.au

                                      Iain
  Falshaw

                                    
	 	 	 	 
	 	
                                      With
      a copy (which shall 

                                      not
      constitute notice) to:

                                    	 	
                                      Lloyd Edwards

                                      Lloyd.edwards@acnaustralia.com.au

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      	 	
                              Name:

                            	 	
                              deltathree,
      Inc.

                            
	 	
                              Address:

                            	 	
                              419 Lafayette
      Street

                              New York, N.Y. 10003

                            
	 	
                              Fax:

                            	 	
                              (212)
    500-4888

                            
	 	
                              email:

                              
                                For
      the attention of:

                              

                            	 	
                              dan.antebi@deltathree.com

                              Dan
      Antebi

                            
	 	 	 	 
	 	
                              With
      a copy (which shall 

                              not
      constitute
      notice) to:

                            	 	
                              
                                Peter Friedman,
      Esq.

                              

                              peter.friedman@deltathree.com

                            


                    

                  

                

              

            

          

        

      

    

     

    
      	
               
      

            	
              (c)

            	
              must
      be delivered by hand, or posted by overnight or similar delivery service,
      or sent by confirmed fax to the number, of the addressee, in accordance
      with clause 27.1(b); and

            


    

     

    
      	
               
      

            	
              (i)

            	
              is
      taken to be received by the
addressee:

            


    

     

    
      	
               
      

            	
              (ii)

            	
              (in
      the case of overnight delivery sent to an address in the same country), on
      the third day after the date of posting, with written verification of
      receipt;

            


    

     

    
      	
               
      

            	
              (iii)

            	
              (in
      the case of overnight delivery sent to the address in another country) on
      the fifth day after the date of posting by airmail with a recognized
      international delivery service, with written verification of
      receipt;

            


    

     

    
      	
               
      

            	
              (iv)

            	
              (in
      the case of confirmed fax ) at the time of such transmission if sent
      during normal business hours of the  recipient;
    and

            


    

     

    
      	
               
      

            	
              (v)

            	
              (in
      the case delivery by hand) on
delivery,

            


    

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    but if
the communications is taken to be received on a day that is not a working day or
after 5.00 pm, it is taken to be received at 9.00am on the next working day
(“working day” meaning a day that is not a Saturday, Sunday or public holiday
and on which banks are open for business generally, in the place to which the
communication is posted, sent or delivered).

     

    
      	
              27.2

            	
              You
      will nominate at least two authorised operational contacts and provide any
      relevant details in relation to them required by
    deltathree.

            


    

     

    
      	
              27.3

            	
              If
      either party has a right arising out of a breach of this Agreement by the
      other party and does not exercise that right, not exercising that right
      does not waive:

            


    

     

    
      	
               
      

            	
              (a)

            	
              that
      right unless it does so in writing;
or

            


    

     

    
      	
               
      

            	
              (b)

            	
              its
      right to insist on performance of that or any other obligation at any
      other time.

            


    

     

    
      	
              27.4

            	
              If
      a provision of the Agreement is void, voidable or unenforceable, it will
      be severed and the remainder of the Agreement will not be
      affected.

            


    

     

    
      	
              27.5

            	
              Each
      person will pay its own costs and expenses in respect of the Agreement and
      any agreement or document contemplated by the Agreement or required to
      give effect to it, but you must pay any stamp duty (including fines)
      assessed on the Agreement and any agreement or document contemplated by
      the Agreement or required to give effect to
it.

            


    

     

    
      	
              27.6

            	
              Nothing
      in the Agreement shall be deemed to have created a relationship of
      employer and employee, principal and agent, partnership or joint venture
      between the parties. This Agreement shall not be construed as authority
      for either party to act on behalf of the other in any agency or other
      capacity.

            


    

     

    
      	
              27.7

            	
              The
      Agreement is governed by the laws applicable in the State of New South
      Wales and you and deltathree submit to the exclusive jurisdiction of the
      courts of that State.

            


    

     

    
      	
              27.8

            	
              The
      Agreement constitutes the entire agreement between the parties as to its
      subject matter and supersedes all prior representations and agreements in
      connection with that subject
matter.

            


    

     

    
      	
              27.9

            	
              The
      Agreement may only be varied in writing signed by you and
      deltathree.

            


    

     

    
      	
              27.10

            	
              The
      parties intend that the Agreement shall not benefit or create any right or
      cause of action in, or on behalf of, any person or entity other than the
      parties to this Agreement and no person or entity other than the parties
      to the Agreement shall be entitled to rely on the provisions of the
      Agreement in any action, suit, proceeding, hearing or other
      forum.

            


    

     

    
      	
              27.11

            	
              Each
      Party represents and warrants to the other Party
  that:

            


    

     

    
      	
               
      

            	
              (a)

            	
              it
      has been duly organized and is validly existing and in good standing under
      the laws of the jurisdiction of its
  organization;

            


    

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              it
      has the full right, power and authority to execute, deliver and perform
      its obligations under this
Agreement;

            


    

     

    
      	
               
      

            	
              (c)

            	
              its
      execution of and performance under this Agreement does not and will not
      violate any applicable existing regulations, rules, statutes or court
      orders of any local, state or national government agency, court or body of
      any country or any contract or other agreement to which it is
      subject;

            


    

     

    
      	
               
      

            	
              (d)

            	
              its
      execution and performance under this Agreement does not and will not
      violate or cause a conflict with or default under any other binding
      contract or agreement to which it is
subject;

            


    

     

    
      	
               
      

            	
              (e)

            	
              when
      executed and delivered by it, this Agreement will constitute the legal,
      valid and binding obligation of it, enforceable against it in accordance
      with its terms, subject to applicable bankruptcy and other laws that
      affect the rights of creditors generally;
and

            


    

     

    
      	
               
      

            	
              (f)

            	
              it
      has obtained, or will obtain, all necessary consents and approvals and any
      withholding of objection required from any entity, including any
      governmental authority with respect to the entering into or the
      performance of this Agreement.

            


    

     

    
      	
              27.12

            	
              These
      General Terms may be executed in counterparts, each of which may be deemed
      to be an original and both of which together shall constitute one and the
      same instrument.

            


    

     

    
      	
              27.13

            	
              The
      following rules of interpretation apply to the Agreement, unless the
      contrary intention appears.

            


    

     

    
      	
               
      

            	
              (a)

            	
              The
      expressions "deltathree", "you" or "your" will include their respective
      successors and permitted assigns and
novatees.

            


    

     

    
      	
               
      

            	
              (b)

            	
              A
      reference to a person includes a reference to a person, firm, corporation
      or other legal entity.

            


    

     

    
      	
               
      

            	
              (c)

            	
              A
      term which is defined in any part of the Agreement has the same meaning in
      every other part of the Agreement.

            


    

     

    
      	
               
      

            	
              (d)

            	
              The
      singular includes the plural and vice
versa.

            


    

     

    
      	
               
      

            	
              (e)

            	
              A
      reference to a thing includes any part of that
  thing.

            


    

     

    
      	
               
      

            	
              (f)

            	
              Different
      grammatical forms of the same word have the corresponding
      meaning.

            


    

     

    
      	
               
      

            	
              (g)

            	
              A
      reference to a clause is to a clause in this document, unless otherwise
      stated.

            


    

     

    
      	
               
      

            	
              (h)

            	
              Examples
      or words of inclusion are illustrative only and do not limit the
      generality of the relevant subject.

            


    

     

    
      	
               
      

            	
              (i)

            	
              A
      “reasonable” notice period means a period which is reasonable in the
      circumstances taking into account technical, operational and commercial
      issues.  For clarity, “reasonable” notice regarding an event may
      include notice after the event, or no notice at
  all.

            


    

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    
      	
              28

            	
              DICTIONARY
      TO GENERAL TERMS

            


    

     

    
      	
              28.1

            	
              Words
      in a clause of this Agreement have the meaning given in that clause, the
      Telecommunications Legislation or in this dictionary as
      follows.

            


    

     

    ACN Pacific means ACN Pacific
Pty Ltd, an Australian corporation.

     

    Agreement means the documents
set out in clause 1.2 above.

     

    Application means
Order.

     

    Business Day means a day
(other than a Saturday, Sunday or public holiday) on which banks are open
generally for business in Sydney.

     

    Committed Term means, in
respect of a Service or Individual Service, the period specified as the
"Committed Term", “Term” or the period generally described as the period over
which deltathree will supply the Services, as set out in the Order or elsewhere
in the Agreement, including variations or extensions of that period however
described.  The Committed Term, in respect of a Service or Individual
Service, commences on the Service Start Date.If there is no period of Committed
Term specified in the Application or Agreement, then there will be no period of
Committed Term after the Service Start Date.

     

    Confidential Information of a
party means all information of that party (“Owner”) of a confidential
nature (whether in written, oral, electronic or other form), which another
person (“Recipient”)
first becomes aware, whether before or after the date of the original Order,
either through disclosure by the Owner to the Recipient or otherwise through the
Recipient’s involvement with the Owner. Confidential Information
includes information regarding the other party’s customers, technology, network,
trades secretsand all non-public information relating to the current or future
business interests, methodology or practices or affairs of either
party.

     

    Confidential
Information does not include information:

     

    
      	
               
      

            	
              (a)

            	
              the
      Recipient creates (whether alone or jointly with any person) independently
      of the Owner’s Confidential Information or the Recipient knew prior to
      receiving such information from the
Owner;

            


    

     

    
      	
               
      

            	
              (b)

            	
              that
      is public knowledge (otherwise than as a result of a breach of
      confidentiality by the Recipient or any person to whom it has disclosed
      the information); or

            


    

     

    
      	
               
      

            	
              (c)

            	
              obtained
      without restriction as to further disclosure from a third party other than
      the Owner through no breach of confidentiality by that third
      party.

            


    

     

    For
deltathree, “Owner” and “Recipient” includes deltathree and each deltathree
Group Company excluding ACN Pacific.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    Consequential Loss
means:

     

    
      	
               
      

            	
              (a)

            	
              loss
      of revenue, loss of profits, loss of anticipated savings or business, pure
      economic loss, loss of data, loss of value of equipment (other than cost
      of repair), loss of opportunity or expectation loss and any other form of
      consequential, special, indirect, incidental, punitive or exemplary loss
      or damages; and

            


    

     

    
      	
               
      

            	
              (b)

            	
              any
      penalties or fines imposed by a
Regulator.

            


    

     

    Control
(including the correlative terms “Controls”, “Controlled by”, and “under common Control with”)
means, with respect to any person, entity or enterprise, the power, directly or
indirectly, either to (i) vote a majority of the voting shares or other voting
interests in such person, entity or enterprise for the election of directors or
other governing body of such person, entity or enterprise or (ii) direct or
cause the direction of the management and policies of such person, entity or
enterprise, whether through the ownership of voting securities, by contract or
otherwise.

     

    CPE has the meaning assigned
in clause 3.1.

     

    deltathree means deltathree,
Inc., a Delaware corporation.

     

    deltathree Intellectual
Property means any material owned, developed or licensed by deltathree or
its Personnel, in which deltathree has Intellectual Property
Rights.

     

    deltathree Network means any
telecommunications network, equipment, facilities or cabling controlled by
deltathree.

     

    deltathree Billing Dispute Resolution
Process document is the document agreed between the parties from time to
time which sets out the billing dispute resolution process for all
Services.

     

    Downgrade means any
modification to a Service or an Individual Service which reduces the capacity,
use or utility of that Service or Individual Service.

     

    Emergency means an actual or
potential state of danger requiring immediate action to avoid any Loss,
including personal injury or property Loss.

     

    End User means any person to
whom you supply an End User Service.

     

    End User Service means the
complete retail end-to end service which you provide to a customer of yours
using one or more Individual Services.

     

    Excluded Event
means:

     

    
      	
               
      

            	
              (a)

            	
              a
      breach of the Agreement by you,

            


    

     

    
      	
               
      

            	
              (b)

            	
              an
      Intervening Event;

            


    

     

    
      	
               
      

            	
              (c)

            	
              a
      negligent or fraudulent act or omission of you or any of your Personnel;
      or

            


    

     

    
      	
               
      

            	
              (d)

            	
              a
      failure of any of your equipment.

            


    

     

    General Terms means this
General Terms.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    Group Company of a party means
each of that party’s Related Corporations other than the other
party.

     

    GST has the meaning given in
the A New Tax System (Goods
and Services Tax) Act 1999 (Cth).

     

    Individual means a natural
person.

     

    Individual Service means each
individual service component making up a Service; for example, an individual
circuit or connection for a specific End User.  For clarity, there may
be more than one Individual Service making up a Service.

     

    Insolvency Event means in
relation to a person:

     

    
      	
               
      

            	
              (a)

            	
              the
      person proposing to enter, or entering, into any scheme of arrangement
      (including Chapter 11 type arrangements) between that person and its
      creditors (except an arrangement for the purposes of a solvent
      reconstruction);

            


    

     

    
      	
               
      

            	
              (b)

            	
              a
      mortgagee entering into possession or disposing of the whole or any part
      of the assets or business of the
person;

            


    

     

    
      	
               
      

            	
              (c)

            	
              appointment
      of a receiver, a receiver and manager, a liquidator, a provisional
      liquidator, an administrator or other like person to the person or to the
      whole or any part of its assets or business, or the person taking any step
      to have such a person appointed to itself or the whole or any part of its
      assets or business;

            


    

     

    
      	
               
      

            	
              (d)

            	
              the
      person suspending payment of its debts generally;
  or

            


    

     

    
      	
               
      

            	
              (e)

            	
              the
      person being or becoming insolvent for the purposes of section 95A of the
      Corporations Act
      2001 (Cth).

            


    

     

    Intellectual Property Rights
means all industrial and intellectual property rights, including without
limitation, registered or unregistered trademarks, patents, copyright, rights in
circuit layouts, trade secrets, confidential know how and information and any
application or right to apply for registration of any of those rights.
Intellectual Property includes the right to have
Confidential Information kept confidential.

     

    Interruption in the supply of
goods or a service (including a Service and each Individual Service) means a
delay in supplying, a failure to supply or an error or defect in the supply of,
those goods or that service. (Interrupt(s) will be construed
accordingly).

     

    Intervening Event affecting a
person means any event or circumstance outside that person’s reasonable control,
and includes fire, storm, flood, earthquake, accident, war, labour dispute
(other than a dispute solely between that person and its own staff or staff
under its control), materials or labour shortage, the change or introduction of
any law or regulation, an act or omission of any Regulator or an act or omission
of any third party (including any Supplier) where the act or omission is caused
by an event or circumstance outside that third party's reasonable control
(including any of the things mentioned in this definition).

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    Loss means any loss, cost,
liability or damage, including reasonable legal costs on a solicitor/client
basis and includes Consequential Loss, unless otherwise stated.

     

    Operations
Manual means
the deltathree / ACN Dispute Resolution Process document and all other
service documentation agreed between deltathree and you from time to time
to be part of the Operations Manual.

     

    Order means a request for a
Service or an Individual Service made in the manner specified in the relevant
Service Description.

     

    Personal
Information means information or an opinion (including information or an
opinion forming part of a database), whether true or not and whether included in
material form or not, about an Individual whose identity is apparent, or can
reasonably be ascertained, from the information or opinion.

     

    Personnel of a person means
that person’s employees, agents, contractors or other representatives and, in
the case of deltathree, includes the employees, agents, contractors or other
representatives of any deltathree Group Company excluding ACN
Pacific.

     

    Premises means locations at
which deltathree supplies a Service, and locations to which deltathree needs to
have access to supply a Service.

     

    Privacy Laws means Privacy Act 1988 (Cth),the
Telecommunications Act 1997
(Cth) and the Spam Act
2003 (Cth), each as amended or replaced from time to time.

     

    Regulator means the Australian
Communications Authority, the Australian Communications and Media Authority, the
Australian Competition and Consumer Commission, Communications Alliance Ltd, the
Telecommunications Industry Ombudsman or any other government or statutory body
or authority.

     

    Related Corporation of an
entity means a body corporate that, directly or indirectly, through one or more
intermediaries, Controls, is Controlled by, or is under common Control with such
entity.

     

    Service means the service with
the options and features requested in the Order or Orders as described in the
relevant Service Description, and any related goods (including equipment) and
ancillary services which deltathree supplies to you in connection with that
service.

     

    Service Delivery Pointmeans
the point at which a Service is made available for connection to your equipment
or cabling.

     

    Service Description means the
part of the Agreement entitled "Service Description" which describes a
Service.

     

    Service Option means certain
features and characteristics of a Service which may be selected by you and which
are described as a 'Service Option' (together with any additional terms on which
the Service Option is supplied) in the Service Description or any appendix to
the Service Description.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    Service Start Date for a
Service or an Individual Service means the date on which deltathree starts
supplying that Service or Individual Service to you, or is deemed to do
so.

     

    Supplier means any supplier of
goods or services (including interconnection services) which are used directly
or indirectly by deltathree to supply a Service.

     

    Supplier Network means any
telecommunications network, equipment, facilities or cabling controlled by a
Supplier.

     

    Suspend means suspend, reduce,
restrict or limit supply.

     

    Tax means any withholding tax,
charge (and associated penalty or interest), rate, duty or impost imposed by any
authority at any time but does not include GST, or any tax on income or capital
gains.

     

    Telecommunications Legislation
means the Telecommunications
Act 1997 (Cth) and the Telecommunications (Consumer
Protection and Service Standards) Act 1999 (Cth), each as amended or
replaced from time to time, and Part XIB and Part XIC and related provisions of
the Trade Practices Act.

     

    Termination means termination
of this Agreement, a Service or an Individual Service, as
applicable.

     

    Trade Practices Act means the
Trade Practices Act 1974
(Cth),as amended or replaced from time to time.

     

    General Terms means this
document.

     

    You means ACN
Pacific.

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    Signed for and on behalf of
ACN Pacific Pty
Ltd

    


     

    By: /s/ Iain
Falshaw                              


     

    Name:
Iain
Falshaw                             


     

    Title:
Managing
Director                      


     

    Date:
July 29,
2009                              


     

    


     

    
      Signed for and on behalf of
deltathree, Inc.

    

    


     

    By:  /s/ Effi
Baruch                              


     

    Name:
Effi
Baruch                               


     

    Title:
CEO and
President                      


     

    Date:
July 27,
2009                              

     

    
      
        
        

      

      
        27