Ex. 10.8 Contract with Worldcom Internation Ltd.
WORLDCOM
WHOLESALE
MASTER SERVICES AGREEMENT
This WHOLESALE MASTER SERVICES AGREEMENT
Between SWIFTNET LTD
(the "Customer") and WorldCom International Limited ("WorldCom") (together, the
"Parties"), in addition to the relevant Service Order(s) issued and accepted in
accordance with this Agreement, establishes the terms and conditions under which
terms and conditions the Parties hereby agree.
Parties
Customer: WorldCom:
Office Address: Office Address:
Xxxxxxxxx Xxxxx
000 Xxxx Xxxx 00 Xxxxx Xxxxx
Xxxxxx X00 0XX Xxxxxx
XX0X 0XX
Registered No: 2776038
Address for Notices: Address For Notices:
As above As above, for the attention of
the International Commercial
Contracts Manager
Terms and Conditions
1. Definitions
1.1 In this Agreement the following terms and phrases shall have the
following meanings: "Acceptance Date" shall mean the date on which the
Customer accepts or is deemed to accept the Service in accordance with
Clause 3. "Acceptance Tests" shall mean the tests to be carried out by
WorldCom pursuant to Clauses 3.1 and 3.4. "Act" shall mean the
Telecommunications Xxx 0000. "Agreement" shall mean this Wholesale
Master Services Agreement together with any Service Orders and annexes
hereto. "Business Day" shall mean every day excluding Saturdays,
Sundays and national holidays in England. "Business Hours" shall mean
the hours between 0800 to 1830 every Business Day. "Charges" shall
mean the charges payable by the Customer to WorldCom for the Service
as set out in the relevant Service Order and revised from time to time
in accordance with Clause 4.3. "Confidential Information" shall mean
all information (in whatever format) designated as such by either
Party together with all such other information which relates to the
business, affairs, customers, products, developments, trade secrets,
know-how and personnel of either Party and which may reasonably be
regarded as the confidential information of the disclosing Party.
"Customer Equipment" shall mean equipment, systems, cabling and
facilities provided by the Customer and used in conjunction with the
Service Equipment in order to obtain the Service. "Customer Site"
shall mean a site specified in a Service Order at which the Service is
to be provided. "Emergency Works" shall have the same meaning as is
given to emergency works in the Telecommunications Code. "Fault" shall
mean a material defect, fault or impairment in a Service which causes
an interruption in the provision of that Service. "Force Majeure
Event" shall mean any cause beyond a Party's reasonable control
affecting the performance of its obligations hereunder including but
not limited to fire, flood, explosion, accident, war, strike, embargo,
governmental requirement, civil or military authority, Act of God,
inability to secure materials, industrial disputes and acts or
omissions of other providers of telecommunications services. "Network"
shall mean the telecommunication system(s) that WorldCom has the right
to run under the Act. "Ready for Service Notification" means a
notification supplied in accordance with Clause 3.1 or 3.4 by WorldCom
to the Customer on successful completion of the Acceptance Tests.
"Service" shall mean the specific switched telecommunications service
supplied by WorldCom to the Customer as described in the relevant
Service Order. "Service Equipment" shall mean the equipment, systems,
cabling and facilities provided by WorldCom at the Customer Site in
order to make available the Service to the Customer including
Telecommunications Apparatus, Service Equipment shall not include the
Network or any equipment which is the subject of a separate supply
contract between WorldCom and the Customer. "Service Order" shall mean
a request for Service delivered by the Customer to WorldCom and
accepted by WorldCom in accordance with Clause 2.2. "Service Term"
shall mean in relation to any particular Service (unless otherwise
stated in the relevant Service Order) one year from the Acceptance
Date. "Telecommunication Apparatus" shall have the same meaning as is
given to that expression in the Telecommunications Code.
"Telecommunications Code" shall mean the Code set out at Schedule 2 of
the Act. "WorldCom Affiliate" shall mean any company of which WorldCom
is a Subsidiary and any Subsidiary of such company and any Subsidiary
of WorldCom, the term "Subsidiary" having the meaning ascribed thereto
in Sections 736 and 736A of the Companies Xxx 0000.
1.2 Reference in this Agreement to any statute or statutory provision
include, unless the context otherwise requires, references to that
statute or provision as from time to tome amended, extended or
re-enacted.
2. Service
2.1 The Customer may from time to time deliver to WorldCom Service Orders
on the terms of this Agreement. Any Service Orders shall be in the
form specified from time to time by WorldCom and notified to the
Customer or such other form as the Customer may deliver to WorldCom
and WorldCom may in its discretion accept.
2.2 Each Service Order shall be binding on both parties only after it is
accepted and signed by WorldCom, such acceptance to include the
carrying out of credit checks pursuant to Clause 4.8. In the event of
any inconsistency between a Service Order and this Agreement, the
Service Order shall take precedence.
2.3 WorldCom reserves the right to use WorldCom Affiliates or
subcontractors to eprform some or all of its duties and/or obligations
hereunder.
2.4 Subject to the provisions of Clauses 2.5 and 2.6 the Customer may
resell the Services to third parties.
2.5 The Customer shall not in its dealings with third parties:
2.5.1 except with WorldCom's prior written consent, refer to
WorldCom in any marketing or services literature;
2.5.2 purport to act on behalf of or represent itself as acting
on behalf of WorldCom.
2.5.3 Seek to resell the Service to other WorldCom customers.
2.6 The Customer shall indemnify WorldCom and shall hold WorldCom harmless
against any claims or proceedings brought by third parties against
WorldCom in respect of the resale of the Services by the Customer to
such third parties.
3. Acceptance Tests
3.1 Prior to the provision of the Service, WorldCom shall conduct such
Acceptance Tests as it considers to be appropriate and upon successful
completion of such Acceptance Tests shall deliver to the Customer a
Ready for Service Notification.
3.2 The Customer shall, within seven (7) days of delivery to it of a Ready
for Service Notification in accordance with Clauses 3.1 or 3.4, notify
WorldCom of any Fault.
3.3 In the event that the Customer fails to notify WorldCom of any Fault
with the Service in accordance with Claus 3.2 it shall be deemed to
have accepted the Service on the date of delivery to it of the Ready
for Service Notification.
3.4 In the event that the Customer notifies WorldCom of a Fault in
accordance with Clause 3.2, WorldCom shall use all reasonable
endeavours to rectify the Fault and upon such rectification shall
conduct Acceptance Tests and deliver to the Customer a further Ready
for Service Notification in relation to that Service in accordance
with this Clause 3.
4. Payment
4.1 The Customer shall be liable for the Charges from the Acceptance Date
in accordance with this Clause 4.
4.2 WorldCom shall be entitled to increase the Charges by written notice
to the Customer.
4.2.1 at any time upon the expiry of a seven (7) day period following
delivery of such notice;
4.2.2. in accordance with Clauses 4.7 and 4.11.1.
4.3 Charges shall accrue from the date on which the Customer commences use
of the Service and may be invoiced monthly in arrears.
4.4 All invoices shall be paid within one month of the date thereof.
4.5 All sums due to WorldCom are exclusive of value added tax and any
other applicable sales tax or duty which shall be invoiced and payable
at the prevailing rate.
4.6 Interest shall accrue on overdue invoices from the due date until
payment (whether before or after judgment) at the annual rate of two
(2) percent above the base lending rate from time to time of the Royal
Bank of Scotland Plc. Interest shall accrue notwithstanding
termination of this Agreement for whatever reason.
4.7 If there is a minimum spend commitment contained in a Service Order
the Customer agrees to meet such commitment in respect of each period
of minimum spend commitment except where and to the extent that
failure to meet such commitment is as a result of WorldCom's
negligence or breach of this Agreement. Failure to meet such minimum
spend commitment shall, in addition to constituting a material breach
of this Agreement, entitle WorldCom to increase the Charges for that
Service with effect from the commencement of the relevant period to
the prevailing WorldCom standard wholesale rate.
4.8 WorldCom reserves the right to carry out a credit check against the
Customer prior to the acceptance by WorldCom of any Service Order in
accordance with Clause 2.2 and subsequent to the carrying out of such
credit check may request from the Customer a cash deposit or letter of
credit in a form to be approved by WorldCom and issued by a bank
acceptable to lit in an amount not exceeding the total Charges which
WorldCom might reasonably expect the Customer to incur during the
Service Term.
4.9 In the event that the Charges incurred by the Customer and remaining
unpaid during any three (3) month period shall exceed the amount of
any initial deposit or letter of credit provided by the Customer to
WorldCom in accordance with this Claus 4. WorldCom may request an
additional amount by way of cash deposit or letter of credit,
acceptable to WorldCom, such that the total amount of any cash deposit
or letter of credit shall not exceed the total Charges which WorldCom
might reasonably expect the Customer to incur during any twelve (12)
month period.
4.10 The Customer acknowledges that any failure by it to comply with any
request made by WorldCom under Clauses 4.8 or 4.9 shall constitute a
material breach of this Agreement.
4.11 In the event that the Customer fails to make payment in accordance
with Clause 4.4 of invoices delivered to it under Clause 4.3 WorldCom
shall be entitled in addition to any remedy which it might have under
this Agreement or otherwise at law:
4.11.1 where applicable in respect of any Service forthwith to
increase the Charges to the prevailing WorldCom standard
wholesale rate for such Service;
4.11.2 to set off any sums owing to it against any cash deposit or
letter of credit provided to WorldCom in accordance with this
Clause 4;
4.11.3 to terminate this Agreement in accordance with Claus 11.5
5. Service Maintenance
Except in the case of Emergency Works, WorldCom shall give no less than
seven(7) days prior written notification to the Customer of all scheduled
Service maintenance, alterations or suspensions which shall affect the
Customer. Wherever possible WorldCom shall endeavour to perform these
activities outside Business Hours and in such a way as to minimise any
interruption in the provision of Services.
6. Fault Resolution
6.1 Worldom shall use all reasonable endeavours to correct any Fault of
which it is notified as possible.
6.2 For the purposes of this Clause 6, a Fault shall be deemed to have
commenced upon the notification of the Fault to WorldCom.
6.3 The Customer may terminate a Service by notice to WorldCom, such
notice to take effect upon the expiry of one Business Day, in the
event of the occurrence in relation to any Service provided thereunder.
6.3.1 of a single Fault affecting that Service for a continuous period
of eight(8) hours;
6.3.2 during any continuous twelve(12) month period, of Faults which,
taken cumulatively, affect that Service for a period exceeding
twenty-four(24) hours.
6.4 For the purposes of this Clause 6, a Fault shall not be deemed to have
occurred where such Fault is caused by the act or omission of the
Customer, Force Majeure Events, Service suspensions for Emergency
Works pursuant to Clause 8 or the failure or malfunction of Customer
Equipment.
6.5 The Customer shall pay all reasonable costs incurred by WorldCom in
remedying any Fault which is attributable to: (i) the negligence,
wilful act, omission, breach, or fault of the Customer or its agents,
or (ii) the failure or malfunction of Customer Equipment.
7. Relocation
The Customer may request the provision of a Service at an additional or
substitute Customer Site by delivering to WorldCom an appropriate Service
Order.
8. Service Suspension
8.1 WorldCom may, in its sole discretion and without prejudice to any
right it might have to terminate the Agreement, elect to suspend
forthwith provision of the Service until further notice in the event
that (i) WorldCom is entitled to terminate this Agreement; or (ii)
WorldCom is obliged to comply with an order, instruction or request of
government, an emergency service organisation or other competent
administrative authority which affects its ability to provide the
Service, or (iii) WorldCom needs to carry out Emergency Works to the
Network or Service Equipment.
8.2 Inthe event that WorldCom exercises its right to suspend the Service
pursuant to Clause 8.1 it shall, whenever reasonably practicable, give
prior notice to the Customer, which notice shall state the grounds of
such suspension together with an estimate of the anticipated duration
of such suspension. WorldCom shall use all reasonable endeavours to
resume provision of the Service as soon as possible.
8.3 In the event that the Service, is suspended as a consequence of the
breach, fault, act or omission of the Customer, the Customer shall pay
to WorldCom all reasonable costs and expenses incurred by the
implementation of such suspension and/or recommencement of the
provision of the Service and WorldCom may recover any other losses
suffered as a result of such breach, fault, act or omission.
8.4 WorldCom shall not be liable for any loss, damage or inconvenience
suffered by the Customer as a result of any suspension pursuant to
Clause 8.1 save where the circumstances set out in Clause 8.1 are
solely attributable to the negligence of WorldCom.
9. Warranties
9.1 Inperforming its obligations under this Agreement, WorldCom shall at
all times exercise the reasonable skill and care of a competent public
telecommunications operator.
9.2 There are no warranties, representations or agreements, expressed or
implied either by operation of law, statutory or otherwise, except
those expressly set forth herein and any such implied warranties are
expressly excluded.
10. Liability
10.1 Subject to Clause 10.4 and notwithstanding anything else in this
Agreement, each Party's liability to the other in contract, tort
(including negligence or breach of statutory duty) or otherwise under
or arising in connection with this Agreement shall be limited to:
10.1.1 £1,000,000 (one million pounds) per event or series of
connected events; and
10.1.2 £2,000,000 (two million pounds) in any twelve month
period.
10.2 Norwithstanding anything else in this Agreement, neither Party shall
in any event be liable to the other in contract, tort (including
negligence or breach or statutory duty)or otherwise for indirect or
consequential losses under or arising in connection with Agreement
including, but not limited to, harm, lost revenues, loss of
anticipated savings or lost profits.
10.3 Should any limitation or provision contained in this Clause 10 be held
invalid under any applicable statute or rule of law it shall to that
extent be deemed omitted.
10.4 Nothing in this Agreement shall serve to limit either Party's
liability in respect of death or personal injury caused by or arising
from that Party's negligence.
11. Term and Termination
11.1 This Agreement shall be in effect from the date first stated overleaf
or the date the first Service Order between the Parties is signed by
WorldCom, whichever is earlier, and shall continue unless terminated
in accordance with this Clause 11.
11.2 Either Party may terminate a Service by notice to the other such
notice to take effect:
11.2.1 on the expiry of a thirty (30) day period following delivery of
such notice once the relevant Service Term has expired;
11.2.2 forthwith if, in relation to that Service, the other Party has
committed a material breach which is incapable of remedy;
11.2.3 forthwith if, in relation to that Service, the other Party has
committed a material breach which is capable of remedy (other
than as set out in Cause 11.5) but which it fails to remedy
within fifteen (15) days of having been notified of such
breach;
11.2.4 forthwith if, in relation to that Service, a Force Majeure
Event continues for a period exceeding three (3) months.
11.3 The Customer may terminate a Service upon the occurrence of Faults in
relation thereto as provided in Cause 6.3.
11.4 Either Party may terminate this Agreement by notice to the other
Party. Such notice to take effect forthwith:
11.4.1 in the event of a material breach relating to all Service by
the other which is incapable of remedy;
11.4.2 in the event of a material breach relating to all Services by
the other which as capable of remedy (other than as set out in
Clause 11.5) but which it fails to remedy within fifteen (15)
days of having been notified of such breach;
11.4.3 in the event of a Force Majeure Event relating to all Service
that continues for a period exceeding three (3) months;
11.4.4 where no Service have been supplied under this Agreement for a
period exceeding three (3) months;
11.4.5 if the other has a receiver or an administrative receiver
appointed over it or over any part of its undertaking or assets
or passes a resolution for winding up (other than for the
purpose of a bona fide scheme of solvent amalgamation or
reconstruction) or a Court of competent jurisdiction makes an
order to that effect or if the other Party becomes subject to
an administration order or enters into any voluntary
arrangement with its creditors or ceases or threatens to cease
to xxxxx business.
11.5 WorldCom may terminate this Agreement on ten(10) days notice to the
Customer in event of a failure by the Customer to pay invoices falling
due in accordance with Clause 4.4.
11.6 Upon termination of this Agreement all services shall, without
prejudice to the parties accrued right and obligations with respect
thereto, terminate forthwith.
11.7 Termination of this Agreement shall not relieve the Customer of its
obligation to pay any charges incurred hereunder or the continuance in
force of Clauses 4, 10, 11, 12, 19, 24 and 25.
12. Customer Obligations
12.1 The Customer shall grant or shall procure the grant to WorldCom of
such rights of access to each Customers Site and shall provide to
WorldCom such facilities and information as WorldCom may reasonable
require to enable it to perform its obligations under this Agreement.
12.2 The Customer shall notify WorldCom of any existing technical or other
facilities including, but not limited to, water and gas which could be
damaged during the installation of the Service Equipment and WorldCom
shall have no liability in respect of any damage or loss arising out
of the Customer's failure to comply with this Clause 12.2.
12.3 The Customer shall at its own expense comply with WorldCom's
reasonable instructions in relation to the modification of the
Customer Equipment to enable the Customer to receive the Service.
12.4 The Customer shall be liable for any and all damage to the Service
Equipment or the Network which is cause by (i) the act or omission of
the Customer or the Customer's breach of the terms of this Agreement;
or (ii) malfunction or failure of any equipment or facility provided
by the Customer or its agents, employees, or suppliers, including but
not limited to, the Customer Equipment.
12.5 The Customer shall identify, monitor, remove, and dispose of any
hazardous materials prior to any work being performed by WorldCom at a
Customer Site, and the Customer shall indemnify, defend, and hold
WorldCom harmless from any liability incurred in the use of or in
connection with hazardous materials at a Customer Site.
12.6 The Customer warrants that it holds such licences under the Act as are
required to run and connect the Customer Equipment to the Network and
Service Equipment and that (where relevant) it has in force in respect
of the Customer Equipment a maintenance contract with a maintainer
designated under the Act and shall comply with the Act. WorldCom
reserves the right to disconnect any Customer Equipment which is not
approved under the Act or is liable to cause death or personal injury
or to cause damage to or to impair the Network. WorldCom shall in no
event be liable in respect of the Customer's failure to comply with
the provisions of this Clause 12.6
12.7 The Customers shall obtain and hereby grants to WorldCom all licences.
Waivers, consents, or registrations necessary to deliver, install, and
keep installed at the Customer Site the Service Equipment. WorldCom
may in this respect advise the Customer of requirements and the date
by which they are required to be fulfilled in a schedule of
requirements.
12.8 The Customer warrants and undertakes:
12.8.1 that it shall house the Service Equipment in accordance with
WorldCom's reasonable instructions as may be given from time to
time;
12.8.2 that it shall not move, modify, relocate, or in anyway
interfere with the Service Equipment or Network;
12.8.3 that it shall not cause the Service Equipment to be repaired,
serviced, or otherwise attended to except by an authorised
representative or WorldCom;
12.8.4 that it shall ensure and keep insured all Service Equipment
installed at each Customer Site against all risks;
12.8.5 that it shall not remove, tamper with, or obliterate any words
or labels on the Service Equipment;
12.8.6 that it shall not create or allow any charges, liens, pledges,
or other encumbrances whatsoever to be placed on the Service
Equipment. Title to the Service Equipment shall at all times
belong and remain with WorldCom Affiliate;
12.8.7 that it shall use the service Equipment only for the purpose of
receiving the Service from WorldCom and in accordance with such
reasonable written instructions as WorldCom may from time to
time give;
12.8.8 that it shall permit WorldCom to inspect and/or test the
Service Equipment at all reasonable times;
12.8.9 that, upon termination of a Service Order, it shall allow
WorldCom access to each Customer Site to remove the Service
Equipment. Should any construction or alteration to the
Customer Site have occurred to facilitate provision of the
service, WorldCom shall not be obliged to restore the Customer
Site to the same physical state as prior to Service delivery.
12.9 The Customer shall advise WorldCom in writing of all health and safety
at work rules and regulations, of all dangerous objections and
substances, and any reasonable security requirements applicable at the
Customer Site, and WordCom shall use all reasonable efforts to observe
and ensure that its employees and authorised representatives observe
such regulations so advised while at the Customer Site, provided that
WorldCom shall not be liable hereunder if as a result of conforming
with such regulations WordCom is in breach of its obligations under
this Agreement.
12.10 The customer warrants and undertakes that it shall not use the
Service for any illegal or unlawful purpose and shall indemnify
WorldCom in respect of any liability incurred as a result of a breach
by the customer of this Clause12.10
13. Severability
If any provision of this Agreement is held by a court or any governmental
agency or authority to be invalid, void, or unenforceable, the remainder of
this Agreement shall to the extent possible remain legal, valid, and
enforceable.
14. Variation
This Agreement shall be modified only by the written agreement of both
parties.
15. Force Majeure
Not withstanding herein to the contrary, neither Party shall be liable for
any delay or delay or failure in performance of any part of this
Agreement(other than the payment obligations set out in clause 4) to the
extent that such delay or a failure is attributable to a Force Majeure
Event. Any such delay or failure is attributable to a Force Majeure Event.
Any such delay or failure shall suspend this Agreement until the Force
Majeure Event ceases and the Service Team of any Service affected by such
Force Majeure Event shall be extended by the length of the suspension.
16. No Licence
No licence with respect to the Service Equipment, express or implied, is
granted by WorldCom pursuant to this Agreement.
17. Counterparts
This agreement may be executed in counterparts, each of which shall be
deemed an original, but both of which shall constitute the same instrument.
18. No Partnership
Nothing in this Agreement and no action taken by the Parties pursuant to
this agreement shall constitute or be deemed to constitute between the
Parties a partnership, association, joint venture, or other co-operative
entity.
19. Confidentiality
19.1 Subject to Clause 19.2, each Party shall:
19.1.1 only us Confidential Information for the purposes of this
Agreement; and
19.1.2 only disclose Confidential information to a third party with
the prior written consent of the other Party; and
19.1.3 ensure that any third party to whom Confidential Information is
disclosed executes a confidentiality undertaking in the terms
of this Clause 19.
19.2 The provisions of Clause 19.1 shall not apply to any Confidential
Information which:
19.2.1 is in or comes into the public domain other than by breach of
this Clause 19;
19.2.2 is or has been independently generated by the recipient Party;
19.2.3 is properly disclosed pursuant to a statutory obligation, the
order of a court of competent jurisdiction or that of a
competent regulatory body.
20. Assignment
Neither Party may assign this Agreement without the written consent of the
other Party (which consent shall not be unreasonably withheld or unduly
delayed), except that WorldCom may assign any and all of its rights and
obligations hereunder(I) to any WorldCom Affiliate, (ii) pursuant to any
sale or transfer of substantially all the assets of WorldCom, or (iii)
pursuant to any financing, merger, or reorganisation of WorldCom.
21. No Waiver
Failure by either Party to exercise or enforce any right conferred by this
Agreement shall not be deemed to be a waiver of any such right nor to
operate so as to bar the exercise or enforcement of any such or other right
on any later occasion.
22. Notices
Any notice required or authorised to be delivered by one Party to the other
under this Agreement shall be delivered by prepaid registered post or by
facsimile transmission (immediately confirmed by post) to the address
stated for that Party above and shall be deemed to have been served 48
hours after such posting or such transmission, except that the Customer may
give notice to WorldCom by telephone on the number stated above (or as
notified to the Customer from time to time) which notice shall be deemed to
be given upon the allocation by WorldCom to the Customer of a fault report
number.
23. Entire Agreement
This Agreement expresses the entire understanding of the Parties in
relation to the Service and replaces any and all former agreements,
understandings, solicitations, offers, and representations relating to the
Services.
23. Dispute Resolution
In the event of a dispute between the parties concerning this Agreement
each of the parties shall, in the first instance, bring the dispute at the
earliest opportunity to the attention of a Director or similar officer of
such Party.
24. Governing Law
This Agreement shall be governed by English Law and the Parties irrevocably
agree to the exclusive jurisdiction of the English courts.
IN WITNESS WHEREOF, the Parties, intending hereby to be legally bound, by
their authorised officers, have executed this Agreement on the date here
written.
Customer: Swiftnet Ltd WorldCom International Limited
/s/: /s/:
Name: A Keinan Name: Xxx Xxxxxxx
Title: MD Title: Manager
Date: 3.6.98 Date: 20.7.98
