EXHIBIT 10.3
GOVERNMENT OF INDIA
MINISTRY OF COMMUNICATIONS
DEPARTMENT OF TELECOMMUNICATIONS
TELECOM COMMISSION
LICENCE AGREEMENT
FOR PROVISION OF
INTERNET SERVICE
NO. 820-49/98-LR DATED 12th November, 1998
TOTAL PAGES Twenty Nine (29) + (3)
CONTENTS
1. Licence Agreement.......................................................... 3
2. Schedule `A' -- Service Area............................................... 8
3. Schedule `B' -- Quantum of Licence......................................... 9
4. Schedule `C'............................................................... 9
PART I - DEFINITIONS................................................. 9
PART II - TERMS AND CONDITIONS........................................ 12
Condition 1: Requirement to provide the service.......................... 14
Security consideration...................................... 15
Application of Indian Telegraph Act......................... 17
Prohibition of certain activities........................... 17
Application of the TRAI Act................................. 18
Condition 2: Acceptance Testing and Quality Assurance:................... 19
Condition 3: Delivery of the Services.................................... 19
Condition 4: Complaint - Booking and Treatment........................... 20
Condition 5: Right to Inspect............................................ 20
Condition 6: Force - Majeure............................................. 21
Condition 7: Interconnection with other networks......................... 21
Condition 8: Requirement to Furnish Information to the Licensor/Telecom
Authority................................................... 23
Condition 9: Extension of Licence........................................ 23
Condition 10: Termination of Licence...................................... 23
Condition 11: Disputes with other parties................................. 26
Condition 12: Arbitration of Disputes..................................... 27
Condition 13: Financial Conditions........................................ 27
Condition 14: Set Off..................................................... 29
PART III - COMPLIANCE STATEMENT........................................ 26
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LICENCE AGREEMENT
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THIS AGREEMENT made on the 12th day of November 1998 between the
President of India acting through Assistant Director General (LR-1), Ministry of
Communications, Department of Telecommunications, Sanchar Bhavan, 00, Xxxxxx
Xxxx, Xxx Xxxxx-000 001 (hereinafter called the LICENSOR) of the ONE PART
And
M/s XXXXXX INFOWAY (P) LIMITED a company registered under the
Companies Xxx 0000 and having its registered office at XxxXxxx Xxxxxx, 0-
00/000/00, X.X. Road, Secunderabad (hereinafter called the LICENSEE which
expression shall unless repugnant to the context, include its successor in
business, administrators, liquidators and assigns or legal representatives) of
the OTHER PART.
WHEREAS pursuant to the request of the LICENSEE, the LICENSOR has
agreed to grant licence to the LICENSEE on the terms and conditions appearing
hereinafter to establish, maintain and operate Internet Service (hereinafter
called the SERVICE) in the country of India as given in Schedule "A" annexed
hereto and the LICENSEE has agreed to accept the same.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. In consideration of observance of mutual covenants as well as payment of
the licence fee payable in terms of schedule 'B' and due performance of all the
terms and conditions on the part of the LICENSEE, the LICENSOR does, hereby,
grant on nonexclusive basis, licence to establish, maintain and operate Service
in the area given in Schedule "A", on the terms and conditions mentioned in
Schedule "C" annexed hereto.
2. The licence is granted initially for a period of 15 years unless terminated
for default or for insolvency or for convenience or for transfer of the licence
under the provisions of condition "12" of Part II, Schedule "C". If requested
by LICENSEE, extension of the Licence, unless terminated earlier under condition
"10" of the Schedule "C" Part -II, may be granted by the LICENSOR at suitable
terms and conditions for a period of FIVE YEARS or more at one time. The
decision of the LICENSOR in this respect shall be final. The Licensor may
extend or refuse the extension of the Licence on request of the licensee
received latest by the end of 14/TH/ YEAR from the effective date and in the
absence of such request for extension, the Licence shall automatically be
terminated as per due date.
3. The licence shall be governed by the provisions of the Indian Xxxxxxxxx Xxx
0000, Indian Wireless Telegraphy Xxx 0000 and TRAI Xxx 0000 as modified from
time to time.
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4. Unless otherwise stated or appearing from context, all the schedules
annexed hereto including the certificates given along with application form and
Guide lines on Internet service no. 845-51/97-VAS will form part and parcel of
this agreement. Provided, however, in case of conflict or variance on an issue
relating to this agreement, the terms set out in the main body of this agreement
read with all the Schedules annexed hereto shall prevail.
5. In this Agreement, words and expressions will have the same meaning as is
respectively assigned to them in Schedule "C".
6. The LICENSOR may at any time revoke the Licence by giving a written notice
of 30 days after affording a reasonable opportunity of hearing on the breach of
any of the terms and conditions herein contained or in default of payment of any
consideration payable by the Licensee as provided hereunder.
7.1 The LICENSEE shall clearly indicate the specifications of the
SERVICE to the subscribers at the time of entering into contract with such
subscriber.
7.2 In case of any complaint or dispute with regard to the Service from
any subscriber of the service, such complaint or dispute shall be a matter
between such subscriber of the service and the licensee only. The
Government/licensor, DOT, MTNL, VSNL or any other service provider licensed to
provide connectable systems shall not be party to any such complaint/dispute.
The licensee shall be responsible to suitably notify the above to all his
subscribers of the service before registering a request for and provisioning of
the service.
7.3 The Licensee shall be solely responsible for installation, networking
and operation of necessary equipment and systems, treatment of subscribers'
complaints, issue of bills to its subscribers, collection of the revenue,
attending to claims and damages arising out of the services provided by him.
The LICENSEE shall make its own arrangements for all infrastructures involved in
providing the SERVICE. Further the Licensee shall clearly display and publicise
major specifications of subscriber terminal equipment at his premises which are
necessary for interworking/interfacing to telephone network.
8. The licensee shall be free to fix his own tariff to be charged from
subscribers. The tariff shall be left open to be decided by market forces.
However, the TRAI (Telecom Regulatory Authority of India) may review and fix a
tariff at any time during the validity of the licence which shall be binding on
the Licensee.
8.1 The licensee shall be responsible to obtain its own IP address and
domain name from the competent authorities. In case the IP addresses are taken
from the Department of Telecommunications, the same are non-portable and have to
be returned to DOT at the termination of connectivity contract.
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9. The Performance Bank Guarantee of requisite amount shall be furnished from
time to time by the LICENSEE as required under the terms and conditions of this
Licence Agreement and in the proforma as provided in Schedule 'D' annexed
hereto.
10. The LICENSEE shall not, without the prior written consent of the Licensor,
either directly or indirectly, assign or transfer its rights in any manner
whatsoever to any other party or enter into any agreement for sub-licence and/or
partnership relating to any subject matter of the licence to any third party
either in whole or in part. Any violation of this term shall be construed as a
breach of Licence Agreement and the licence shall be liable for termination.
Provided, however, that installation of systems, equipment and network can be
given on contract, but, providing the SERVICE can not be given to another party
on contract. Provided, further, that the licensee can always employ or appoint
agents and servants.
Provided, that the aforesaid written consent permitting transfer or
assignment will be granted in accordance with the terms and conditions and
procedures described in Tripartite Agreement if duly executed amongst LICENSOR,
LICENSEE and LENDERS.
11. The LICENSOR reserves the right to, in case of a default of any of the
terms and conditions stipulated in the Licence Agreement, impose any penalty as
it may deem fit under the provisions of this agreement.
12. Notwithstanding anything contained hereinbefore, it is further agreed and
declared by the parties that:
(i) The licence is issued on non-exclusive basis i.e. other vendors may be
granted licence for the same service in the same area at the discretion of the
Licensor. DOT itself or through a designated Public Authority, has the right to
operate the service in any/all service areas.
(ii) The LICENSOR reserves the right to modify at any time the terms and
conditions of the licence covered under Schedule "A", "B", "C" and "D" annexed
hereto, if, in the opinion of the LICENSOR, it is necessary or expedient to do
so in the interest of the general public or for the proper conduct of telegraphs
or on security consideration, provided further that the licensor reserves right
to review the terms of this agreement based on the policy of further
liberalization whenever articulated in the context of New Telecom Policy.
(iii) Notwithstanding anything contained anywhere else in the Licence
Agreement, the LICENSOR's decision shall be final on all matters relating to
this Agreement and application of terms and conditions herein.
(iv) The LICENSOR reserves the right to take over the entire services,
equipment and networks of the LICENSEE, in part or in whole of the Service Area,
or revoke/terminate/suspend the licence in the interest of national security or
in the event of a national emergency/war or low intensity conflict or any other
eventuality in public
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interest as declared by the Government of India. The specific orders or
directions from the Government issued under such conditions shall be applicable
to the LICENSEE.
13. Individuals or groups of organisations both in private and Government
sectors are permitted to deploy, indigenous or imported, encryption equipments
for providing secrecy in transmission up to a level of encryption to be
specified by Telecom Authority. However, if encryption equipments of levels
higher than specified are to be deployed, individuals/groups/organisations shall
obtain Government clearance and shall deposit one set of keys with the Telecom
Authority.
14. In supersession of any thing provided elsewhere, the effective date of this
licence shall be 12.11.98.
15. The Licence is granted to the LICENSEE on the condition that any change in
the Indian Partners or their equity participation should be as stipulated in the
Indian Companies Xxx 0000.
The LICENSEE shall be responsible to ensure that the total foreign
equity in the LICENSEE Company does not, at any time, exceed 49% of the total
equity.
The present Indian & Foreign partners/promoters and their equity held
in the LICENSEE Company as intimated by the company are recorded as follows:
Equity held in the
Promoter/partner Indian/Foreign LICENSEE Company
Promoters Indian 33%
F.I.I. Foreign 28%
Mutual Funds Indian 15%
Public Indian 28%
16. All matters relating to this licence will be subject to jurisdiction of
Courts in Delhi/New Delhi only.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed through their respective authorised representatives the day and year
first above written.
[illegible]
Signed and Delivered for and on behalf of President of India
By Shri P.C. TERWARI
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Assistant Director General (LR-1), DOT
Signed on behalf of M/s XXXXXX INFOWAY LIMITED
By XXXX XXXXXXXX, holder of General Power of Attorney dated 4-11-98
executed in accordance with the Resolution No. ___________ dated 3-10-98 passed
by the Board of Directors, in the presence of:
Witnesses:
1. [illegible]
---------------------
2. [illegible]
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Schedule A
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SERVICE AREA - 'A'
The service area under the scope of this licence is "WHOLE OF INDIA".
For the purpose of providing the service, the licensee may install his equipment
anywhere within the service area. However, the subscribers will be responsible
for procurement of Customer Premises Equipment (CPE). The leased line
subscribers of the service shall be located within the service area. However,
this restriction does not apply to dial up subscribers. DOT is committed to
provide local call facilities to the nearest node. In case where the nearest
INTERNET node is located in a different local area, the local call facility will
be available to that node. However, as soon as a node is set up in the local
area, this facility will cease.
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Schedule 'B'
1.1 QUANTUM OF LICENCE FEE AND SCHEDULE OF PAYMENTS
(i) The licence fee is payable by the licensee in consideration
for grant of this licence, for the complete duration for which this licence is
granted. This has no relation to the actual start/provision of service by the
licensee or any mutual obligations between the licensee and any other service
provider/DOT/MTNL/VSNL/Departments of the Central or State Government/local or
statutory bodies .
(ii) The Telecom Authority has decided to waive the Licence Fee
for a_period up to 31.10.2003. For those ISPs also who obtain licences prior to
01.11.2003, a nominal licence fee of One Rupee per annum will become payable
from 01.11.2003.
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Schedule 'C'
Part I. DEFINITIONS, INTERPRETATIONS AND PROVISIONS
RELATING TO THE CONDITIONS
Unless the context otherwise requires, the following expressions shall
have the meaning assigned to them in these conditions:-
1. APPLICABLE SYSTEMS: The "applicable system" means all the necessary
equipments/systems engineered to provide INTERNET Service as per
operational/technical and quality requirements and other terms and conditions of
the licence agreement and as laid down in the Guidelines for INTERNET Service
No. 845-51/97-VAS .
2. CONNECTABLE SYSTEM means a telecommunication system which is
authorised to be run under a licence which can be connected to the applicable
system.
3. THE AUDITOR means the Licensee's auditor for the time being appointed
in accordance with the requirements of the Companies Act, 1956.
4. XXXX: DOT's Gateway Internet Access Services.
5. DIRECT EXCHANGE LINE (DEL): A telephone connection between the
subscriber's terminal equipment and a local exchange.
6. DOMAIN NAME: Domain names in India are at present registered by NCST
(National Centre for Software Technology), Mumbai, who allot the same to
legitimate IP address holder on receipt of a written application.
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7. DOT means Department of Telecommunications, India, Government of India
and/or its successors as the Licensor. Wherever the expression DOT is used to
mean a service provider, this will include MTNL also.
8. EFFECTIVE DATE: The date on which this Licence Agreement is signed by
the parties and if the parties have signed on different dates, the latter of the
two dates.
9. EMERGENCY means an emergency of any kind, including any circumstances
whatever resulting from major accidents, natural disasters and incidents
involving toxic or radio-active materials.
10. EMERGENCY SERVICES means in respect of any locality, the relevant
public, police, fire, ambulance and coast guard services for that locality.
11. ENGINEERING; The technical application of the dimensioning rules and
results thereof in order to provide the specified GRADE OF SERVICE (G.O.S.).
12. GIAS, VSNL's Gateway Internet Access Services.
13. INTERNET: Internet is a global information system that:
*is logically linked together by a globally unique address, based on
Internet Protocol (IP) or its subsequent enhancements/upgradations;
*is able to support communications using the Transmission Control
Protocol/Internet Protocol (TCP/IP) suite or its subsequent
enhancements/upgradations, and all other IP compatible protocols; and
14. IP ADDRESSES: Operation of Internet Service requires IP addresses
which is at present a 32 bit binary address. This address is required for each
permanent connection on Internet. Typically, it is required for ports of
routers and other ISP equipment and also for leased line connections to be
provided to end users.
15. ISP: means Internet Service Provider licensed to provide Internet
Service under this licence.
16. LICENCE means a licence granted or having effect as if granted under
Section 4 of the Indian Xxxxxxxxx Xxx 0000 and Indian Wireless Xxxxxxxxxx Xxx
0000.
17. LICENSEE: A registered Indian Company that has been awarded licence
for providing the SERVICE.
18. LICENSOR shall refer to the President of India acting through any
authorised person, who granted Licence under Section 4 of Indian Xxxxxxxxx Xxx
0000 and Indian Wireless Xxxxxxxxxx Xxx 0000, unless otherwise specified.
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19. LOCAL AREA: Local Area is the Short Distance Charging Area (SDCA) of
Department of Telecommunication.
20. MESSAGE means anything falling within Sub Clause/paragraph (3) of
Section 3 of the Indian Xxxxxxxxx Xxx 0000.
21. MTNL means Mahanagar Telephone Xxxxx Limited.
22. OPERATOR means any person who is authorised by the LICENSOR to run a
Relevant Connectable System.
23. SERVICE AREA: Separate licences shall be granted to any applicant
company for each service area. For this purpose, the country has been divided
into separate service areas in three categories as indicated below:
(i) Category "A" - This covers the territorial jurisdiction of the Union
of India except specified areas that may be notified to be excluded from time to
time.
(ii) Category "B" - Any of the 20 Territorial Telecom Circles, four Metro
Telephone Districts of Delhi, Mumbai, Calcutta or Chennai and four major
telephone districts of Ahmedabad, Bangalore, Hyderabad or Pune are Category 'B'
service areas. The four Metro Telephone Districts (Delhi, Mumbai, Calcutta &
Chennai) are not part of any Telecom Circle, whereas the four major Telephone
Districts Ahmedabad, Bangalore, Hyderabad & Pune) are part of respective Telecom
Circles.
(iii) Category "C" Service Area - Any Secondary Switching Area (SSA) of
DOT with geographical boundaries as on 1.4.98, will form a separate category "C"
Service Area with the exception that each of the four Metro Telephone Districts
of Delhi, Mumbai, Calcutta & Chennai and of four major Telephone Districts of
Ahmedabad, Bangalore, Hyderabad & Pune of the DOT with geographical boundaries
as on 1.4.98, will form a separate category "B" Service Area.
Applicants will be required to submit separate application for each
service area. The ISP will be required to set up his nodes i.e., Routes/servers
within the geographical limits of the service area. An applicant company may be
granted any number of licences. Also, there shall be no limit on number of
licences that can be granted in a particular service area. The leased line
subscribers shall be from within the service area. However, the ISP can offer
dial up service from any part of the country.
Existing E-Mail and VSAT Service Licensees may also obtain separate
ISP Licence for any number of the above mentioned service areas subject to
fulfillment of eligibility criteria.
24. SERVICES OR SERVICE means all types of Internet Access/content
services except telephony on Internet.
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25. SERVICE PROVIDER means the Government and includes a licensee.
26. SUBSCRIBER - Subscriber means any person or legal entity who avails
the service from the licensee.
27. TELECOM AUTHORITY: The Director General, Telecommunications,
Government of India and includes any officer empowered by him to perform all or
any of the functions of the Telegraph Authority under the Indian Telegraph Act,
1885 or such other authority as may be established by law.
28. TECHNICAL SPECIFICATIONS: As laid down in the Guidelines for INTERNET
Service No. 845-51/97-VAS.
29. TARIFF: Charges payable by a subscriber for the service provided.
30. TRAI - means the Telecom Regulatory Authority of India established
under the TRAI Act, 1997.
31. VALIDITY OF THE LICENCE: The period for which this licence is
effective.
32. VSNL means "Videsh Xxxxxxx Xxxxx Ltd."
33. W.P.C. means Wireless Planning & Co-ordination Wing of the Ministry of
Communications, Department of Telecommunications, Government of India.
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SCHEDULE "C"
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Part II. TERMS AND CONDITIONS
Condition 1: REQUIREMENT TO PROVIDE TBE SERVICE
1.1 The LICENSEE shall commission the Applicable Systems within 18
months from the effective date of the licence and offer the service on demand to
its customers.
1.2 LICENSEE shall be solely responsible for the installation,
networking and operation of necessary equipment and systems, treatment of the
subscribers' complaints, issue of bills to its subscribers, attending to claims
and damages arising out of his operation. The LICENSEE shall make its own
arrangements for all infrastructures involved in providing the SERVICE.
1.3 For the purpose of providing the SERVICE, the LICENSEE shall
install his own suitable equipment so as to be compatible with the other service
providers' equipment and connect the same XXXX or GIAS or a Gateway owned by a
public/Government organisation for routing International Internet Traffic.
Private ISPs are also allowed to set up International Gateways after obtaining
security clearance/approval from Authority.
1.3.1 Internet Subscribers can procure their own terminal
equipment or lease the same from the ISP .
1.4 In the process of operating the SERVICE, the LICENSEE shall be
responsible for:
(i) The installation of the Internet Nodes i.e., routers/Servers
etc.
(ii) the proper operation and maintenance of his network
infrastructure;
1.5 If the LICENSEE has, in addition, leased or rented other
telecommunication resources from the DOT/MTNL/VSNL or any other Telecom Service
Provider authorised by the Government of India, purely for the purposes of
providing the service and networking its geographically dispersed equipment,
such resources will be a matter
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between the ISP and the service provider(s) and will be subject to tariff as
fixed by DOT/MTNL/VSNL/other Telecom Service Provider from time to time.
1.6 "WARRANTY AS TO QUALITY": The LICENSEE shall warrant that SERVICES
to be provided by him shall be of the acceptable grade, consistent with the
established and generally accepted standards.
1.7 The licensee shall provide to the Telecom Authority, a monthly
report indicating the details of ISP nodes or points of presence with their
locations. In case new nodes are to be installed, one month prior notice is
required to be given to the licensor .
1.8 The billing disputes or differences, between the LICENSEE and its
subscribers will be settled amongst themselves.
1.9 MTTR (Mean Time To Restore):
1.9.1 90% of faults resulting due to subscribers complaints
should be rectified within 24 hours and 99% within 3 days.
1.9.2 The Licensee will keep a record of number of faults and
rectification reports in respect of each service area and produce the same to
the Authority as and when required.
1.10 SECURITY CONSIDERATION:
1.10.1 Individuals or groups of organisations both in private
and Government sectors are permitted to deploy, indigenous or imported,
encryption equipments for providing secrecy in transmission up to a level of
encryption to be specified by Telecom Authority. However, if encryption
equipments of levels higher than specified are to be deployed,
individuals/groups/organisations shall obtain clearance from the Government of
India and shall deposit one set of keys with the Telecom Authority.
1.10.2 The LICENSEE shall provide to the LICENSOR, location
details of the equipment provided by ISP. Implementation of any installation of
the concerned equipment and execution of the concerned project shall be taken up
only after the approval by the LICENSOR and locations of these centres shall not
be changed without prior approval of the LICENSOR. This requirement shall be
applicable only to such areas as are sensitive from security point of view, as
may be notified from time to time by the LICENSOR.
1.10.3 Each ISP must maintain a log of all users connected and
the service they are using (mail, telnet, http etc.). The ISPs must also log
every outward login or telnet through their computers. These logs, as well as
copies of all the packets originating from the Customer Premises Equipment (CPE)
of the ISP, must be available in REAL TIME to
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Telecom Authority. Type of logins, where the identity of the logged-in user is
not known, should not be permitted.
1.10.4 The LICENSEE shall provide necessary facilities to the
Government to counteract espionage, subversive act, sabotage or any other
unlawful activity. The said facilities to be provided by the LICENSEE will
depend upon the specific situation at the relevant time. Type and extent of
facility(ies) required shall be at the sole discretion of the Government of
India.
1.10.5 The LICENSEE shall not use any hardware/software which
are identified as unlawful and/or render network security vulnerable. The
LICENSEE shall make available, on demand, to the agencies authorised by the
Government Of India, full access to the equipment provided by the ISP for
technical scrutiny and detailed inspection.
1.10.6 All foreign personnel likely to be deployed by the
LICENSEE for installation, operation and maintenance of the LICENSEE's network
shall be required to obtain security clearance by the Government of India prior
to their deployment. The security clearance will be obtained from the Ministry
of Home Affairs, Government of India.
1.10.7 Software used by each ISP shall conform to a set of
latest operational requirements which will be periodically published by the
Telecom Authority.
1.10.8 LICENSOR shall have the right to take over the SERVICE,
equipment and networks of the LICENSEE either in part or in whole of the Service
Area as per directions if any, issued in the public interest or national
security by the Government in case of emergency or war or low intensity conflict
or any other eventuality. Provided any specific orders or direction from the
Government issued under such conditions shall be applicable to the LICENSEE and
shall be strictly complied with.
1.10.9 LICENSOR reserves the right to modify these conditions
or incorporate new conditions considered necessary in the interest of national
security.
1.10.10 On Security related issues, an Inter-Ministerial
Committee shall be set up consisting of the representatives of DOT, Cabinet
Secretariat, MHA, MOD, DOE and NIC and representatives from NASSCOM to look into
the technical aspects of monitoring of communications in this sector (including
Internet) to enable the setting up of the monitoring infrastructure (which, in
many cases, would have to be funded by the ISPs). Any condition imposed by this
Inter-Ministerial Committee during the validity of the licence shall be binding
on the licensee.
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1.11 APPLICATION OF INDIAN TELEGRAPH ACT:
1.11.1 The LICENSEE shall furnish all necessary means and
facilities as required for the application of provisions of Section 5(2) of the
Indian Xxxxxxxxx Xxx, 0000, whenever occasion so demands.
At present Section 5(2) of Indian Telegraph Act reads as follows:
"on the occurrence of any public emergency or in the interest of
public safety, the Central Government or a State Government or any officer
specially authorised in their behalf by the Central Government or a State
Government may, if satisfied that it is necessary or expedient to do so in the
interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign states or public order or for preventing
incitement to the commission of an offence for reasons to be recorded by order,
direct that any message or class of messages to or from any person or class of
persons or relating to any particular subject, brought for transmission by or
transmitted or received by any telegraph, shall not be transmitted or shall be
intercepted or detained or shall be disclosed to the Government making the order
or an officer thereof mentioned in the order:
Provided that press messages intended to be published in India, or
correspondents accredited to the Central Government or a State Government shall
not be intercepted or detained, unless their transmission has been prohibited
under this subsection."
1.11.2 The LICENSEE shall frame a set of commercial code that
govern registration, provisioning and tariffication for the services offered to
the public. This should be done before commercial launch of the service and
shall be consistent with the terms and conditions of licence.
1.11.3 Nothing provided and contained anywhere in this Licence
Agreement shall be deemed to affect adversely anything provided or laid under
the provisions of Indian Telegraphs Act, 1885 or any other law in force, as
enacted/amended from time to time.
1.12 PROHIBITION OF CERTAIN ACTIVITIES BY THE LICENSEE.
1.12.1 The LICENSEE shall not engage provision of any other
Telecom SERVICE unless so licensed.
1.12.2 For the avoidance of doubt, it is, hereby declared that
nothing contained in Condition 1.12.1 above shall preclude the LICENSEE from
engaging in advertising and promotional activities relating to any of the
Applicable Systems.
1.12.3 Telephony on the Internet: Telephony on the Internet is not
permitted. The licence will be liable for termination for any violation of this
clause of the Licence Agreement. The licensee shall also take measures on his
own and as and when directed by the Government at his own cost to bar carriage
of Telephone traffic over Internet.
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1.12.4 Obscene material and applicability of Cyber Laws:
The LICENSEE shall ensure that objectionable, obscene, unauthorized or
any other content, messages or communications infringing copyright, Intellectual
property right and international & domestic cyber laws, in an form or
inconsistent with the laws of India, are not carried in his network, the ISP
should take all necessary measures to prevent it. In particular, LICENSEE is
obliged to provide, without delay, all the tracing facilities of the nuisance or
malicious messages or communications transported through his equipment and
network, to authorised officers of Government of India/State Government, when
such information is required for investigations of crimes or in the interest of
national security. Cyber Laws as and when framed shall be applicable. Any
damages arising out of default an the part of licensee in this respect shall be
sole responsibility of the licensee.
1.12.5 The use of the network for anti-national activities would
be construed as an offence punishable under the Indian Penal Code or other
applicable law. The networks cannot be used in such a manner as to endanger or
make vulnerable a networked infrastructure. Acts such as break-ins or attempted
break-ins of Indian networks shall be regarded as an anti-national act and shall
be dealt with in accordance with the Indian Penal Code. ISPs must ensure that
their services are not used for such purposes.
1.12.6 In case any confidential information is divulged to the
LICENSEE for proper implementation of the Agreement, it shall be binding on the
LICENSEE, its sub-contractors, agents and servants to maintain its secrecy and
confidentiality.
1.13 APPLICATION OF THE TRAI ACT 1997
The licence shall be governed by the provisions of the TRAI Act, 1997,
as modified from time to time. The attention of the licensee is specifically
drawn to the following provisions of the TRAI Xxx 0000 which reads as follows:
Section 11.(1) Notwithstanding anything contained in the Indian
Xxxxxxxxx Xxx 0000, the functions of the Authority shall be to
(c) ensure technical compatibility and effective inter-connection
between different service providers;
(i) protect the interest of the consumers of telecommunication
service;
(j) monitor the quality of service and conduct the periodical survey
of such provided by the service providers;
(k) inspect the equipment used in the network and recommend the type
of equipment to be used by the service providers
Section 12(l) Where the Authority considers it expedient to do so, it
may, by order in writing,
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(a) call upon any service provider at any time to furnish in writing
such information or explanation relating to its affairs as tile Authority may
require; or
(b) appoint one or more persons to make an inquiry in relation to the
affairs of any service provider; and
(c) direct any of its officers or employees to inspect the books of
account or other documents of any service provider.
CONDITION - 2: ACCEPTANCE TESTING & QUALITY ASSURANCE:
2.1 ACCEPTANCE TESTING:
The Acceptance Testing of any interface equipment connected to the DOT
network will be carried out by the Acceptance Testing party of the DOT. The
Acceptance Testing schedule shall be mutually agreed. Adequate time, not less
than 30 days, will be given by the licensee for these tests.
2.2 QUALITY ASSURANCE:
The Telecom Authority shall have right to check and measure the
quality of service provided by the licensee at any time during the currency of
the licence.
The LICENSEE shall submit to the LICENSOR a half yearly report on the
quality of SERVICE offered to its subscribers indicating the levels of
performance achieved.
CONDITION 3: DELIVERY OF THE SERVICES
3.1 The LICENSEE shall be responsible for installation, testing and
commissioning of all the equipment to provide the services. It will be the
responsibility of the Licensee to obtain IP address, domain name etc. from
competent authority. (In case the IP addresses are taken from the Department of
Telecommunications, the same are nonportable and have to be returned to DOT at
the termination of connectivity contract.) However, all performance tests
required for successful commissioning of the service may also be carried out by
the LICENSOR, if it so desires, before the services are commissioned for public
use. The LICENSEE shall supply all necessary literature, drawings, installation
materials regarding the equipment installed for commissioning of the services,
The LICENSEE shall supply all the tools, test instruments and other accessories
to the testing party of the LICENSOR for conducting the tests.
3.2 The licensee shall provide service within 18 months from the date of
signing of the licence agreement. Date of commercial launch will be the date on
which full commercial services are provided to the subscribers.
19
3.3 The list of performance tests will be furnished by the LICENSEE one
month prior to the date of commissioning to the LICENSOR.
3.4 In case the Licensor chooses to conduct performance test, delay caused
due to rectification of deficiencies, if any, in the commissioning/provision of
SERVICES, will be to the account of the LICENSEE.
3.5 The LICENSEE shall provide the SERVICE in the Service Area to any
individual or legal person including customers located in Rural Belt(s) of the
licensed service area without any discrimination unless directed by the LICENSOR
in writing to so refuse.
3.6 The LICENSEE indemnifies the LICENSOR against all actions brought
against the LICENSOR for breach of privacy or unauthorised interruption of data
transmitted by the subscribers.
CONDITION 4: COMPLAINT - BOOKING AND TREATMENT
4.1 The LICENSEE shall be responsive to the complaints lodged by his
subscribers. He shall rectify the defects within the MTTR specified.
4.2 The LICENSEE shall equip himself with adequate system to deal with the
complaints from his subscribers, test the part of the equipment and external
plant wherever relevant, and take necessary corrective measures to bring the
faulty elements back into satisfactory operation. It shall maintain the history
sheets for each installation, statistics and analysis on the overall maintenance
status.
4.3 The Licensee shall log all complaints reported by his subscribers
chronologically and with details of action taken on the same.
CONDITION 5: RIGHT TO INSPECT
The LICENSOR, or its authorised representative shall have the right to
inspect the internet nodes set up by the Licensee to give service to his
subscribers. The LICENSOR shall, in particular but not limited to, have the
right to have access to leased lines, junctions, terminating interfaces,
hardware/software, memories of semiconductor, magnetic and optional varieties,
wired options, distribution frames, and to enter into dialogue with the system
through Input/output devices or terminals. The LICENSEE will provide the
necessary facilities for continuous monitoring of the same, if required by the
LICENSOR or its authorised representative(s). The LICENSOR will ordinarily
carry out inspection after reasonable notice except in circumstances where
giving such a notice will defeat the very purpose of the inspection.
20
CONDITION 6: FORCE - MAJEURE
If, at any time during the continuance of this licence, the
performance in whole or in part, by either party, of any obligation under it is
prevented or delayed, by reason of war or hostility, acts of the public enemy,
civil commotion, sabotage, fire, flood, Act of State or direction from Statutory
Authority, explosion, epidemic, quarantine restriction, strikes and lock-outs
(as are not limited to the establishments and facilities of the LICENSEE), or
act of GOD (each hereinafter referred to as EVENT), provided notice of
happenings of any such EVENT is given by either party to the other, within 21
days from the date of occurrence thereof, neither party shall, by reason of such
EVENT, be entitled to terminate the licence, nor shall either party have any
such claims for damage as against the other, in respect of such non-performance
or delay in performance. Provided SERVICE under the licence shall be resumed as
soon as practicable, alter such EVENT comes to an end or ceases to exist. The
decision of the LICENSOR as to whether the SERVICE may be so resumed (and the
time frame within which the SERVICE may be resumed) or not, shall be final and
conclusive. However, the Force Majeure events noted above will not in any way
cause extension of the period of Licence and will also not be a ground for non-
payment of Licence fee.
CONDITION 7: INTERCONNECTION WITH OTHER NETWORKS
7.1 Direct interconnectivity between two separately licensed ISPs shall be
permitted. Authorised public/Government organisations will be allowed to
provide INTERNET Gateway access including international leased circuits directly
without going through VSNL Gateways. Private ISPs are allowed to provide such
Gateways after obtaining Security clearances for which the Interface of Private
ISPs shall only be with the Telecom Authority.
7.2 The licensee may obtain the transmission link on lease from DOT,
Licensed Basic Service Operators, Railways, State Electricity Boards, National
Power Grid Corporation or any other operator specially authorised to lease such
lines to the ISPs. The licensee may also establish its own transmission links
within its service area for carrying traffic originated and terminated by his
subscribers, provided that such capacities are not available from any other
authorised agencies and subject to permission of Telecom Authority.
7.3 An ISP may provide Internet Service to any VSAT subscriber (who could
be served by a shared hub commercial service provider or captive private VSAT
network), if the VSAT is located within the service area of the ISP. For this
purpose, a direct interconnection of VSAT or VSAT-hub through leased line
obtained from an authorised provider to the ISP's node/server shall be permitted
only for the flow of Internet traffic. The existing Licence for Closed Users
Group Domestic 64 KBPS Data Network via Insar Satellite System does not xxxxx
xxxx distance carrier rights to the licensee. The ISP shall provide to the
Telecom Authority a monthly statement of VSAT subscribers served with
21
their locations and details of leased line interconnection with the VSAT hub.
The VSAT hub, however, need not be located in the service area of the ISP.
7.4 Resources required for interconnecting the licensee's network to the
network of upstream internet access provider (DOT/VSNL etc.) or any other
service provider licensed by the Telecom Authority including time frame for
provision of the same, will be mutually agreed between the parties concerned.
The resources may refer to include, but not limited to physical junctions. PCM
derived channels, private wires, leased lines, data circuits and other network
elements. The licensee shall apply for and obtain the network resources from
the concerned parties. The tariff of such network resources is outside the
scope of this licence agreement. Licensor will have no obligation to obtain
such resources from other parties
7.5 Interconnectivity Requirements: Private ISPs shall use IP (Internet
Protocol) in conjunction with Transmission Control Protocol (TCP) and shall meet
the interface requirements of the Internet Access Providers such as
DOT/MTNL/VSNL to whose network, his node is connected. Some of the interfaces
required are given below:
Interface Requirements
(i) Subscriber Dial up Access
2 wire access over PSTN for modern interface.
2 wire dial up access on ISDIN Basic &- Primary rate interfaces.
(ii) Leased Line Interface
64K, N x 64K or 2.048 Mb/s, IN x 2.048 Mb/s Leased lines.
Frame Relay.
X.25
ATM
G. 703
Access to internet through authorised Cable Operator shall be
permitted without additional licensing subject to applicable Cable Laws (The
Cable Television Networks (Regulation) Act, 1995) as modified from time to time.
'Last mile' linkages shall be freely permitted within Local Area
either by fibre optic or radio communication for ISPs. In case of radio links,
clearance from WPC wing or the DOT shall be required to be obtained by the ISPs
to avoid frequency interference.
7.6 QUALITY OF SERVICE: The quality of service over internet is not
defined as yet. As such, the QUALITY OF SERVICE is not being defined for the
time being. However, it may be defined at a later date based on the experience
gained and inputs from the Internet Engineering Task Force (IETF).
22
CONDITION 8: REQUIREMENT TO FURNISH INFORMATION TO THE LICENSOR/TELECOM
AUTHORITY
8.1 Subject to Condition 8.2, the LICENSEE shall furnish to the TELECOM
AUTHORITY, in such manner and at such times as the AUTHORITY may require, such
documents, accounts, estimates, returns or other information.
8.2 The LICENSEE may not be required to procure or furnish a report which
would not normally be available to it unless the TELECOM AUTHORITY considers the
particular report essential to enable it to exercise its functions.
8.3 Engineering details:
The LICENSEE shall furnish complete technical details including
traffic for proper engineering, planning and dimensioning of the interconnect
equipment at the network --network interface (NNI).
CONDITION 9: EXTENSION OF LICENCE:
This licence is valid initially for a period of FIFTEEN YEARS unless
-------------
terminated earlier. If requested by the LICENSEE, extension may be granted by
the LICENSOR at suitable terms for a period of five years or more at a time.
The decision of the LICENSOR shall be final in the matter. The LICENSOR shall
extend or refuse extension of the licence on a request received by it. Such
request for extension may be made during 14th year of Licence and in any case
before expiry of 14 years from effective date. If no request for extension is
received by then, the licence shall automatically stand terminated as per due
date.
The licence will ordinarily be renewed on such terms and conditions as
may be determined by the LICENSOR.
CONDITION 10: TERMINATION OF THE LICENCE:
10.1 TERMINATION FOR DEFAULT:
The LICENSOR may, without prejudice to any other remedy for breach of
conditions of licence, by written notice of 30 days, issued to LICENSEE at its
registered office 30 days in advance, terminate this licence in whole or part
under any of the following circumstances:
(a) if the LICENSEE fails to commission or deliver the SERVICE within
the time period(s) specified in the licence or in any extension thereof, if
granted by the LICENSOR. However, this does not prevent the licensee from
commissioning the
23
service even after scheduled date of commissioning, provided the licence does
not already stand terminated and the Performance Tests are satisfactory.
(b) If the LICENSEE fails to perform any other obligation under the
Licence including remittance of timely payments of Licence fee due to the
LICENSOR and the LICENSEE does not rectify the failure within a notice period of
30 days or during such further period, as the LICENSOR may authorise in writing
in this regard.
In the event of such termination of licence, the amount equivalent to
Performance Bank Guarantee (PBG) shall be recovered by encashing the PBG and
money so recovered shall be forfeited. The Licensee shall not be entitled to
any damages or compensation for such termination.
10.2 TERMINATION FOR INSOLVENCY:
The LICENSOR may, at any time, terminate the licence without
compensation to him, if the LICENSEE becomes bankrupt or otherwise insolvent or
applies for being adjudicated as insolvent/bankrupt, provided such termination
shall not prejudice or affect any right or action which has accrued or will
accrue thereafter to the LICENSOR. The right of termination will arise on the
LICENSEE being adjudicated or applying for being adjudicated as bankrupt.
10.3 TERMINATION FOR CONVENIENCE:
If the LICENSEE desires to surrender the licence, it shall give an
advance notice of 30 days to the Licensor to this effect. If the service is in
operation, the licensee shall also intimate its subscribers of consequential
withdrawal of service by serving a 15 days notice to them. The financial
liability of the licensee company for termination of the licence for convenience
shall be as below:
(a) After start of service: If during the notice period, acceptable
level of service is not delivered to the customer, the Licensee shall forfeit
all claims on the Performance Bank Guarantee which shall be encashed and the
amount shall be adjusted towards damages.
(b) Before start of service: (Either prior to or after the scheduled
date of commissioning). Amount equivalent to Performance Bank Guarantee (PBG)
shall be recovered by encashment of PBG and money so recovered shall be
forfeited.
10.4 TERMINATION FOR TRANSFER OF THE LICENCE:
24
The LICENSEE shall not, in any manner whatsoever, transfer the
licensing rights granted to it, to any other party without written consent of
Licensor. Any violation shall be construed as a breach of licence and the
licence shall be terminated in accordance with the provisions as contained in
condition 10.1 hereinabove.
10.5 ACTIONS PURSUANT TO TERMINATION OF LICENCE AS PER CLAUSES 10.1, 10.2,
10.3 AND 10.4 ABOVE:
10.5.1 In the event of termination of the licence, the LICENSOR
may procure upon such terms and conditions and in such manner as deemed
appropriate/fit, the required resources will make up for those not installed,
not delivered or not brought into commission so as to enable provision of
SERVICE and the LICENSEE shall be liable to the LICENSOR for any excess/extra
costs for such corrective efforts. The criteria for determining the terms and
conditions for such procurement will depend upon the market prices, prevailing
at the time of procurement. The decision of the LICENSOR in this matter shall be
final in all respects.
10.5.2 Whenever the licence is terminated or not extended, the
LICENSOR may, in order to ensure the continuity of the SERVICE, take such steps,
as are necessary, including the following:
(i) permit the Department of Telecommunications/MTNL or
its successor to take over; or
(ii) issue licence to another Indian Company for running
the SERVICE. The LICENSEE shall facilitate taking over by DOT/MTNL or the new
LICENSEE all those assets as are essential for the continuity of the SERVICE.
10.5.3 During the period when a notice for termination of licence
is pending, the Quality of Service to the Subscribers shall be maintained. If
the SERVICE quality is not maintained, (during the notice period), it will be
treated as breach of licence conditions and will be dealt with as such including
recovery of damages.
10.5.4 The Performance Bank Guarantee, if due, shall be returned
to the licensee company 6 months after the termination of the licence and after
ensuring clearance of any dues which the licensee company is liable to pay.
CONDITION 11: DISPUTES WITH OTHER PARTIES
11.1 In the event of any dispute of the LICENSEE with any other service
provider or any party other than licensor due to any reason whatsoever, the
dispute will be sorted out among themselves and LICENSOR will have no liability
in any manner. However, in case of dispute arising with other parties due to
non-observance of rules and regulations by the LICENSEE as provided in this
licence, the LICENSOR will have full powers to take any action against licensee
as is provided in the relevant clauses of this licence. The
25
LICENSEE undertakes to indemnify LICENSOR in respect of any action against
LICENSOR for acts of commission or omission on the part of the LICENSEE, its
agents and servants.
CONDITION 12: ARBITRATION OF DISPUTES:
12.1 In the event of any question, dispute or difference between parties
arising under the licence, or in connection therewith, except as to the matter,
the decision of which is specifically provided under the licence, the same shall
be referred to the sole arbitration of the TELECOM AUTHORITY or in case its
designation has changed or its office is abolished, then, in such case, to the
sole arbitration of the officer for the time being entrusted, whether in
addition to his duties the functions of the TELECOM AUTHORITY or by whatever
designation such officer may be called (hereinafter referred to as the said
officer), and if the TELECOM AUTHORITY or the said officer is unable or
unwilling to act as such, to the sole arbitration, of some other person
appointed by the TELECOM AUTHORITY or the said officer. The arbitration
proceedings shall be in accordance with the Indian Arbitration and Conciliation
Act, 1996 and rules framed thereunder or any modifications or re-enactment
thereof made from time to time.
12.2 There will be no objection to any such appointment that the
Arbitrator is a Government Servant, or he has to deal with the matter to which
the licence relates. The award of the arbitrator shall be final and binding on
the parties. In the event of such Arbitrator, to whom the matter is originally
referred, being transferred or vacating his office, or being unable to act for
any reason whatsoever, in case the Telecom Authority or the said officer was
himself acting as an officer, his successor in office shall act as an Arbitrator
or may appoint some other person to act as an Arbitrator. In case the retiring
Arbitrator was a person appointed by the Telecom Authority or the said officer,
a new Arbitrator shall be appointed in his place by the Telecom Authority or the
said officer and the new Arbitrator shall be entitled to proceed from the stage
at which it was left out by his predecessor.
12.3 The venue of arbitration proceeding shall be the office of
TELECOM AUTHORITY at New Delhi or such other place as the arbitrator may decide.
CONDITION 13: FINANCIAL CONDITIONS
13.1 TARIFF: LICENSEE will be free to fix its own tariff to be charged from
subscriber. The tariff shall be left open to be decided by market forces. The
licensee company shall intimate the Telecom Authority, the tariff for the
service to be charged from its subscribers and any changes thereof. However,
the TRAI (Telecom Regulatory Authority of India) may review and fix a tariff at
any time during the validity of the licence which scale of tariff shall be
binding on the Licensee.
26
13.2 OWNERSHIP OF THE CUSTOMER PREMISES EQUIPMENT: The provision of
Customer Premises Equipment (CPE) at subscriber's premises shall be
responsibility of the subscriber.
13.3 THE COMMUNICATION RESOURCES & OTHER SUPPORT FACILITIES: LICENSEE
will have to make its own arrangement for all infrastructure involved in
providing the SERVICE. However, the charges for any communication resources
required for the purpose of networking and delivery of Internet Traffic to the
upstream network access provider, i.e., DOT/MTNL/VSNL/or other licensed service
provider on the request of the LICENSEE will be at the rates fixed by the
DOT/MTNL/VSNL or other licensed service provider from time to time.
13.4 The LICENSEE shall be bound by the terms and conditions of the
licence granted as well as by such regulations and instructions as are issued by
the LICENSOR and/or its successors from time to time.
13.5 PREPARATION OF ACCOUNTS:
The LICENSEE shall;
(a) maintain and prepare accounting records, sufficient to show
and explain its transactions in respect of each financial year or part thereof
of the LICENCE during which this Licence is in force, or of such lesser periods
as the LICENSOR may specify, fairly presenting the costs (including capital
costs), revenue and financial position of the LICENSEE's business and including
a reasonable assessment of the assets employed in and liabilities attributable
to the LICENSEE's business.
(b) procure in respect of each of those accounting statements
prepared in respect of a financial year or part thereof of the LICENSEE, a
report by the LICENSEE'S Auditor stating whether in his opinion that statement
is adequate for the purposes of the condition; and
(c) deliver to the LICENSOR a copy of each of the accounting
statements not later than six months after the end of the period to which they
relate.
In this condition: the "Auditor" means the LICENSEE's auditor for
the time being appointed in accordance with the requirements of the Companies'
Act, 1956.
13.6 PERFORMANCE BANK GUARANTEE (PBG):
A performance bank guarantee of Rs. 2.00 crores for category 'A'
Service Area, Rs. 20.00 lakhs for each category 'B' Service Area and Rs. 3.00
lakhs for each category 'C' Service Area valid for two years from any Scheduled
Bank in the prescribed form (Schedule 'D' of the draft Licence Agreement) shall
be submitted along with the application for each service area. The licensee
will be liable to extend the validity of
27
Performance Bank Guarantee two months prior to its date of expiry on its own
without demand from the Licensor for a further period of one year on year to
year basis. On any failure to do so which failures shall amount to the breach of
this Licence, the performance bank guarantee will be encashed without giving any
notice. This is without prejudice to any other action that may be taken under
the terms and conditions of the licence.
13.7 LICENSOR, without prejudice to its rights to any other remedies, is
free to encash the Performance Bank Guarantee in part or in full, in case of any
breach of terms and conditions of the licence by the LICENSEE including non-
payment of licence fee etc.
13.8 Breach or non-fulfillment of licence conditions may come to the
notice of the LICENSOR through complaints or as part of regular monitoring.
Wherever considered necessary, LICENSOR will conduct an inquiry to determine
whether there has been any breach of the terms and conditions of the licence.
The LICENSEE will be given an opportunity of hearing before any action adverse
to his interest is taken.
The LICENSOR shall decide in each case the penalty to be levied for
any breach of the terms and conditions of the Licence. If the penalty is not
discharged or complied with, the LICENSOR has the right to encash, in part or in
full, the Performance Bank Guarantees.
13.9 CHARGES FOR NETWORK RESOURCES
The LICENSEE shall also separately pay charges for network resources
provided to the Licensee on licensee's request by the Department of
Telecommunications /MTNL/VSNL/other licensed service providers at rates
applicable from time to time.
CONDITION 14: SETOFF
Any sum of money due and payable to the LICENSEE under this licence
may be appropriated by the Government or any other person or persons including
contracting through the Government of India and the same may be set off against
any claim of the Government or such other persons, for payment of a sum of money
arising out of this licence or under any other licence made by the LICENSEE with
the Government or such other person or persons including TELECOM AUTHORITY.
28
SCHEDULE `C'
Part III. COMPLIANCE STATEMENT
This company, hereby, agrees to fully comply with all General,
Technical, Commercial and Financial terms and conditions of the Application
Form, Guidelines and General Information on Internet Services and
amendments/clarifications issued by the Telecom Authority, without any deviation
and reservations.
The company, hereby, agrees and undertakes to fully comply with all
terms and conditions stipulated in this Licence Agreement without any deviation
and reservation.
Signature of the authorised signatory of the operating company
(Licensee).
For and on behalf of M/s XXXXXX INFOWAY LIMITED
-----------------------
(Name of the Company)
[illegible]
29
SCHEDULE - D
PROFORMA FOR PERFORMANCE BANK GUARANTEE
To
The President of India
Acting through the Telegraph Authority
In consideration of the President of India acting through the
Telegraph Authority (hereinafter referred to as 'the Authority') having agreed
to grant a licence to M/s _________________________ of _________________________
(hereinafter called the 'LICENSEE') to establish, maintain and operate Internet
service (hereinafter called 'the SERVICE') on the terms and conditions contained
in the said Licence, which interalia provides for production of a Bank Guarantee
to the extent of Rs ____________________________________ ( in words) for the
service by way of security for the due observance and performance of the terms
and conditions of the said licence we ______________________ (indicate the name
and address and other particulars of the Bank) (hereinafter referred to as 'the
Bank') at the request of the LICENSEE hereby irrevocably and unconditionally
guarantee to the Authority that the Licensee shall render all necessary and
efficient services which may be required to be rendered by the LICENSEE in
connection with and/or for the performance of the said LICENSEE and further
guarantees that the service which shall be provided by the LICENSEE under the
said licence, shall be actually performed in accordance with terms and
conditions of the LICENCE to the satisfaction of the Authority.
2. We, the bank hereby undertake to pay to the Authority an amount
not exceeding Rs _____________ (Rupees ___________ only) against any loss or
damage caused to or suffered or would be caused to or suffered by the Authority
by reason of any breach by the said LICENSEE of any of the terms and conditions
contained in the said licence.
3. We, the bank hereby, in pursuance of the terms of the said
licence, absolutely, irrevocably and unconditionally guarantee as primary oblige
and not merely as surety the payment of an amount of Rs ______________ (Rupees
____________________ only) to the Authority to secure due and faithful
performance by the LICENSEE of all his/their obligations under the said Licence.
4. We, the bank hereby also undertake to pay the amounts due and
payable under this guarantee without any demur, merely on a demand from the
Authority stating that the amount claimed is due by way of loss or damage caused
or would be
30
caused to or suffered by the Authority by reason of breach by the said LICENSEE
of any of the terms or conditions contained in the said Licence or by reason of
the LICENSEE's failure to perform any of its obligations under the said Licence.
5. We, the bank, do hereby agree that the decision of the Authority
as to whether the licensee has failed to or neglected to perform or discharge
his duties and obligations as aforesaid and/or whether the service is free from
deficiencies and defects and is in accordance with or not of the terms &
conditions of the said Licence and as to the amount payable to the Authority by
the Bank hereunder shall be final and binding on the Bank.
WE, THE BANK, DO HEREBY DECLARE AND AGREE that:
(a) the Guarantee herein contained shall remain in full force and
effect for a period of two years from the date hereof and that it shall continue
to be enforceable till all the dues of the Authority and by virtue of the said
Licence have been fully paid and its claims satisfied or discharged or till
Authority satisfies that the terms and conditions of the said licence have been
fully and properly carried out by the said LICENSEE and accordingly discharged
this guarantee.
(b) the Authority shall have the fullest liberty without our consent
and without affecting in any manner our obligations hereunder to vary any of the
terms and conditions of the said Licence or to extend time of performance of any
obligations by the said LICENSEE from time to time or to postpone for any time
or from time to time any of the powers exercisable by the Authority against the
said LICENSEE and to forbear or to enforce any of the terms and conditions
relating to the said Licence and we shall not be relieved from our liability by
reason of any variation or extension being granted to the said LICENSEE or
forbearance act or omission on the part of the Authority or any indulgence by
the Authority to the said LICENSEE or to give such matter or thing whatsoever
which under the law relating to sureties would but for this provision, have
effect of so relieving us.
(c) any claim which we have against the LICENSEE shall be subject and
subordinate to the prior payment and performance in full of all the obligations
of us hereunder and we will not without prior written consent of the Authority
exercise any legal right or remedy of any kind in respect of any such payment or
performance so long as the obligations of us hereunder remains owing and
outstanding.
(d) This guarantee shall be irrevocable and the obligations of us
herein shall not be conditional of any prior notice by us or by the LICENSEE.
31
7. We the BANK undertake not to revoke this Guarantee during
__________ except with the previous consent of the Authority in writing.
Dated: __________________ day for___________________________
(name of the Bank)
witness:
1.______________________________ 2.__________________________________
________________________________ __________________________________
________________________________ __________________________________
32
Certificates:
1. I hereby certify that I have carefully read the guidelines and draft
License Agreement on Internet Service. I fully comply with the terms and
conditions therein.
2. I understand that this application, if found incomplete in any respect
and/or if found with conditional compliance or not accompanied with the
processing fee and/or requisite bank guarantee, shall be summarily
rejected.
3. I understand that processing fee is non-refundable irrespective of whether
or not the license is granted to me.
4. I undertake to sign the Licence Agreement, a draft of which has been
supplied to me within the prescribed time notified to me, failing which my
application shall be rejected and processing forfeited.
5. I understand that all matters relating to the application or licence if
granted to me will be subject to jurisdiction of courts in Delhi/New Delhi
only.
6. I understand that such companies and their allied or sister concerns who
have failed to carry out the contractual obligations with regard to other
Telecom Service Licenses granted under Section 4 of Indian Telegraph Act,
1885 shall be granted ISP license on the condition that any decision with
regard to said default or breach whenever taken at the discretion of the
Central Government will be applicable in all respects on me.
*7. (a) I certify that none of the companies mentioned in Item 13 of the
application form are in default of the conditions of license granted under
Section 4 of Indian Xxxxxxxxx Xxx, 0000.
* - strike (a or b) whichever is not applicable.
8. I understand that if at any time any averments made or information
furnished for obtaining the licence is found incorrect, my application
shall be liable to be rejected and any license granted on the basis of this
application shall be liable for termination.
Date: 12-11-98 For Xxxxxx Infoway Ltd.
Place: Delhi Authorised Signatory
Signature and name of the
Authorised Signatory
(Company's Seal)
33
