EXCHANGE OR THE AUSTRALIAN STOCK EXCHANGE.
1.11
"TERRITORY" SHALL MEAN THE GEOGRAPHIC AREA SET FORTH ON EXHIBIT B
TO THIS AGREEMENT.
1.12
"TELSTRA CUSTOMERS" SHALL MEAN THE INDIVIDUALS AND ENTITIES WHO
LICENSE ONE OR MORE PRODUCTS FROM TELSTRA OR ITS AFFILIATES OR WHO PURCHASE
SERVICES FROM TELSTRA OR AN AUTHORIZED RESELLER OF SERVICES.
2.
APPOINTMENT AS EXCLUSIVE DISTRIBUTOR.
2.1
APPOINTMENT.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, VISTULA HEREBY APPOINTS TELSTRA AS ITS EXCLUSIVE DISTRIBUTOR OF THE
PRODUCTS IN THE TERRITORY, AND TELSTRA HEREBY ACCEPTS SUCH APPOINTMENT AND
AGREES TO ACT, AS A DISTRIBUTOR OF THE PRODUCTS IN THE TERRITORY DURING THE TERM
OF THIS AGREEMENT.
2.2
RESTRICTIONS ON FUTURE DISTRIBUTION AGREEMENTS. VISTULA SHALL NOT
GRANT ANY OTHER INDIVIDUAL OR ENTITY THE RIGHT TO MARKET, DISTRIBUTE OR LICENSE
THE PRODUCTS IN THE TERRITORY AND SHALL NOT ITSELF DISTRIBUTE OR LICENSE ANY
PRODUCTS DIRECTLY TO ANY INDIVIDUAL OR ENTITY LOCATED IN THE TERRITORY OTHER
THAN TELSTRA OR TELSTRA'S AFFILIATES
2.3
TERMINATION OF EXCLUSIVITY. AT ANY TIME FOLLOWING THE 5TH
ANNIVERSARY OF THE EFFECTIVE DATE VISTULA MAY, UPON SIX MONTH'S PRIOR WRITTEN
NOTICE TO TELSTRA, TERMINATE THE EXCLUSIVITY OF TELSTRA AS VISTULA'S DISTRIBUTOR
OF THE PRODUCTS IN THE TERRITORY.;
SHOULD TELSTRA ACHIEVE THE SALES TARGETS
AGREED BETWEEN THEM IN ACCORDANCE WITH THIS PARAGRAPH, VISTULA SHALL USE ITS
REASONABLE ENDEAVORS TO AGREE WITH NETYANTRA TO OBTAIN THE NECESSARY RIGHTS TO
CONTINUE TO BE ABLE TO GRANT TELSTRA A FURTHER PERIOD OF FIVE YEARS' EXCLUSIVITY
AND SUCH FURTHER APPROPRIATE REVENUE THRESHOLDS WILL BE NEGOTIATED IN GOOD FAITH
AT THAT TIME.
IN THE EVENT THAT THE EXCLUSIVITY (AS DEFINED IN THE NETYANTRA
AGREEMENT ) OF VISTULA IS TERMINATED UNDER THE NETYANTRA AGREEMENT, THE
EXCLUSIVITY OF TELSTRA HEREUNDER WILL AUTOMATICALLY, AND WITHOUT ANY FURTHER
ACTION BY VISTULA, TERMINATE.
THE PARTIES AGREE TO USE BEST ENDEAVORS TO
NEGOTIATE APPROPRIATE REVENUE THRESHOLDS BY 1ST JANUARY 2006 WHICH IF TELSTRA
FAIL TO ACHIEVE, VISTULA MAY TERMINATE THE EXCLUSIVITY OF TELSTRA AS VISTULA'S
DISTRIBUTOR OF THE PRODUCTS IN THE TERRITORY UPON THREE MONTH'S PRIOR WRITTEN
NOTICE, PROVIDED THAT VISTULA SHALL PROVIDE TELSTRA WITH REASONABLE OPPORTUNITY
TO
2
rectify the breach.
Notwithstanding any termination of the Exclusivity
hereunder for whatever reason, Vistula agrees that for a period of two years
following termination of such Exclusivity, it shall not offer to sell Products
or products similar to the Products to any Telstra Customers.
3.
LICENSES.
3.1
GRANT OF LICENSES.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, VISTULA HEREBY GRANTS TO TELSTRA, AND TELSTRA HEREBY ACCEPTS, THE
FOLLOWING LICENSES (COLLECTIVELY, THE "LICENSES"):
3.1.1
an exclusive license to market the Products in the Territory and to
distribute and sublicense the Products in the Territory; and
3.1.2
an exclusive license to use the Products for the following purposes:
(i)
demonstrating the operation and capabilities of the Products, (ii) training
Telstra's marketing and support personnel, and (iii)
providing maintenance and
support services to Telstra Customers; and
3.2
LIMITATIONS. IN NO EVENT SHALL TELSTRA ESTABLISH OR MAINTAIN ANY
SALES OR SERVICE OFFICE