DATE: 12 JANUARY 1999
Exhibit 10.48
AGREEMENT BETWEEN
CABLE & WIRELESS COMMUNICATIONS SERVICES LIMITED
AND
STARTEC GLOBAL COMMUNICATIONS CORPORATION
RELATING TO
BACKHAUL CONNECT & ACCESS CONNECT SERVICES
------------------------
THIS AGREEMENT is made 12 January 1999
BETWEEN
1. CABLE & WIRELESS COMMUNICATIONS SERVICES LIMITED whose registered
office is at Caxton Way, Watford Business Park, Watford, Hartfordshire
WD:BXH ("C&W")
and
2. STARTEC GLOBAL COMMUNICATIONS CORPORATION whose
registered office is at 00000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
XXX ("the Customer")
IT IS AGREED:
I. DEFINITIONS
1. In these terms the words and expressions listed below shall have the
following meanings:
"Act" the Telecommunications Xxx 0000 as amended
or modified from time to time;
"Agreement" this agreement made between the Customer and
C&W for the Services including the Schedules;
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"Associated Company" C&W's ultimate holding company or any
subsidiary thereof as defined by Sections
736 and 736A of the Companies Xxx 0000 or
other affiliated company;
"C&W" Cable & Wireless Communications Services
Limited as agent for Associated Companies
including those which hold the License
relevant to the supply of Services;
"Customer Location" the premises of the Customer to which the
Services may be provided;
"Initial Period" a period referred to as such and stated in
Schedule 1 commencing on the Services
Commencement Date;
"License" the license granted to the Customer under
Section 7 of the Act (and any supplements
or amendments to this license from time to
time);
"Network" the telecommunication system(s) used by C&W
for the provision of Services;
"Non-recurring Charges" the Non-recurring charges payable by the
Customer in connection with the Services as
specified in Schedule 1;
"Normal Working Hours" the working hours which C&W normally
operate, as set out in its Services
Literature or other applicable document;
"Recurring Changes" the recurring charges payable in connection
with the Services as set out in Schedule 1;
"Services" telecommunication Services as specified in
Schedule 1;
"Service Commencement the date on which a Service is tested and
Date" ready for use, of if earlier, the date on
which the Customer first uses the Services;
"Services Equipment" equipment, including any multiplexer
telecoms apparatus, communicator channel
or software embodied therein, to be
installed at the Customer Location by C&W in
order to make available Services to the
Customer;
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"Services Literature": any brochure, customer guide, description or
instructions as current from time to time
published by C&W in connection with the
provision of Services;
"Services Support": Services support in relation to Services
Equipment;
"System": the system which C&W operate to provide
certain of the Services;
1.2 In these terms any undertaking by either party not to do any act or thing
shall be deemed to include an undertaking not to permit or suffer the doing
of that act or thing.
1.3 In these terms the expressions "The Customer" and "C&W" shall include their
respective successors and permitted assigns and their respective employees
and agents.
1.4 In the event of a conflict or inconsistency between the main clauses of
this Agreement and Schedule 1, Schedule 1 shall prevail over the main
clauses of this Agreement.
2: DURATION
This Agreement shall come into force immediately and shall continue until
terminated in accordance with Clause 7 below.
3: PROVISION AND USE OF SERVICES
3.1 C&W shall provide the Services from the Services Commencement Date.
3.2 The Customer shall only use the Services in accordance with such conditions
as C&W may notify the Customer in writing from time to time and/or in
accordance with the relevant provisions of the Act, the Licence, any
direction of the Director General of Telecommunications or other competent
authority and any licence granted thereunder which governs the running of a
telecommunication system.
4: PROVISION OF INFORMATION
4.1 The Customer will promptly provide C&W (free of charge) with all
information and co-operation which C&W may reasonably require from time to
time to enable C&W to proceed uninteruptedly with the performance of its
obligations under the Agreement.
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4.2 The Customer will inform C&W promptly of any change of address, telephone
numbers or any other details which the Customer originally provided to C&W.
4.3 In order for C&W to investigate abuse of the Network, the Customer will
co-operate in allowing C&W to examine any records relating to the use of
the Services or the equipment connected to it.
5. CHARGES
In consideration of the provision of the Services the Customer shall pay to
C&W as applicable:
- Non-recurring Charges and
- Recurring Charges
6. PAYMENT
6.1 Non-recurring Charges shall be payable when incurred.
6.2 Recurring Charges shall be payable quarterly in advance. Between the
Services Commencement Date and the start of the first billing period a
proportionate part of the Recurring Charges shall be payable calculated on
a pro rata daily basis.
6.3 Payment of all sums due under the Agreement shall be made within thirty
days of the date of the relevant invoice.
6.4 Payment of all sums due under the Agreement shall be made by direct debit
(on completion of an appropriate mandate), cheque or such other method as
C&W may reasonably specify from time to time and payment of all such sums
shall be made in full (without any set-off, deduction or withholding
whatsoever)
6.5 Without prejudice to its other rights, C&W reserve the right to charge
daily interest on all outstanding amounts at the rate equal to 4% per annum
above the National Westminster Bank PLC Base Lending Rate as current from
time to time. Interest shall continue to accrue notwithstanding termination
of the Agreement for any cause whatsoever.
6.6 Charges are exclusive of Value Added Tax ("VAT"), and any other taxes
applicable from time to time, which the Customer shall pay.
7. TERMINATION
7.1 The Customer shall be entitled to terminate a Service by giving C&W not
less than three months' prior written notice to take effect at the end of
the Initial Period for that Service or at any time thereafter. The
Agreement shall terminate when the last of the Services is terminated.
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7.2 Without prejudice to its other rights, the Customer may terminate the
Agreement on giving written notice to C&W, taking immediate effect, if C&W
is in breach of a material obligation under the Agreement and fails to
remedy the breach within 30 days after receipt of a written notice of
termination giving full particulars of the breach.
7.3 C&W shall be entitled to terminate a Service by giving the Customer not
less than three months' prior written notice to take effect at the end of
the Initial Period for that Service or at any time thereafter. The
Agreement shall terminate when the last of the Services is terminated.
7.4 Without prejudice to its other rights, C&W may terminate the Agreement on
giving 30 days written notice to the Customer if:
(a) a receiver or administrative receiver is appointed of any of the
Customer's assets or undertaking or a resolution or petition to wind
the Customer up is passed or presented (otherwise than for the purpose
of reconstruction or amalgamation) or if any circumstances arise which
entitle the court or a creditor to appoint a receiver, administrative
receiver or administrator or to present a winding up petition or
make a winding up order; or
(b) the Customer fails to make any payment when it is due under the
Agreement; or
(c) the Customer defaults in due performance or observance of any
material obligation under the Agreement and (in the case of a
remediable breach) fails to remedy the breach within such reasonable
time as C&W specify; or
(d) C&W is directed by the Director General of Telecommunications or
other competent authority to cease to provide or allow the provision
of the Services.
8. CONSEQUENCES OF TERMINATION
8.1 On termination of the Agreement; all outstanding charges shall be payable
by the Customer including any cancellation charges.
8.2 Upon termination of the Agreement for any reason the Customer shall:
(a) forthwith cease to use the Services; and
(b) where applicable, permit or procure permission for C&W to gain
access to the Customer Locations during its Normal Working Hours for
the purpose of removing any Services Equipment. If the Agreement is
terminated by reason of its breach the Customer shall pay for the cost
of removal.
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9. SUSPENSION OF SERVICES
9.1 C&W may at its sole discretion suspend immediately the provision of
Services until further notice on notifying the Customer either orally
(confirming such notification in writing) or in writing if:
(a) C&W is entitled to terminate the Agreement in accordance with
clause 7.4, or
(b) C&W is instructed or requested to do so by Government, at emergency
Services organisation, or other competent authority.
9.2 Any suspension of Services shall not exclude C&W's right subsequently to
terminate the Agreement.
10. COPYRIGHT IN DOCUMENTS
Copyright in all documents, drawings and information supplied to the Customer
in connection with the Agreement shall remain vested in C&W or the copyright
owner. Such documents, drawings and information shall not be copied,
disclosed or used (except for the purpose for which they were supplied)
without its prior written consent.
11. INFRINGEMENTS
11.1 C&W shall indemnify the Customer against all proceedings arising from
infringement (or alleged infringement) of any patent, design, copyright
or other intellectual or industrial property right enforceable in the
United Kingdom by reason of the Customer's use or possession of equipment
which C&W has supplied. As a condition of this indemnity the Customer
shall:
(a) notify C&W promptly in writing of any allegation of infringement;
and
(b) make no admission relating to the infringement; and
(c) allow C&W to conduct and settle all negotiations and proceedings
and give C&W all reasonable assistance.
11.2 If at any time an allegation of infringement of patent, design, or
copyright is made. C&W may at its own expense modify the equipment so as
to avoid the infringement or may replace the equipment with non-infringing
equipment.
11.3 The indemnity in clause 11.1 does not apply to infringements
occasioned by:
(a) any modification to the equipment which C&W did not authorise; or
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(b) use of the equipment in combination with other equipment and/or
software which C&W did not supply; or
(c) designs or specifications made by or to the Customer's order; and
the Customer shall indemnify C&W against all liability, claims, damage,
loss or proceedings howsoever arising from or in any way connected with
any such infringement.
12: WARRANTY/LIMITATION OF LIABILITY
12.1 C&W shall provide the Services using reasonable care and skill.
12.2 Except as expressly provided in the Agreement, C&W shall have no other
obligation, duty or liability whatsoever in contract, tort or otherwise
to the Customer.
12.3 C&W shall not be liable to the Customer in contract, tort or otherwise
including any liability for negligence or for breach of statutory duty
for:
(a) any loss of revenue, business, contracts, anticipated savings, or
profits; or
(b) any indirect or consequential loss, howsoever arising.
12.4 In clause 12.3 "anticipated savings" means any expense which the
Customer expects to avoid incurring or to incur in a lesser amount than
would otherwise have been the case by reason of using the Services.
12.5 C&W's aggregate liability in contract, tort or otherwise, including
negligence, howsoever arising out of or in connection with the
performance of its obligations under the Agreement shall be limited to
L1,000,000 in respect of any one incident, or L2,500,000 in respect of
any series of incidents arising from a common cause in any twelve
month period.
12.6 Nothing in this contract shall limit C&W's liability for death or
personal injury resulting from its negligence or the negligence of its
employees while acting in the course of their employment or any other
liability to the extent that it cannot be limited by law.
13: BACK-UP POWER AND LIGHTNING PROTECTION
13.1 Backup-power with sufficient capacity to conform to the stand-by
requirement of the relevant British Standards is needed if the Services,
including the provision of access to emergency Services, are required to
continue uninterrupted in the event of a power failure in the principal
power supply.
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13.2 If C&W so require, the Customer shall install at its own expense, by a
date specified by C&W, externally mounted equipment for lightning
protection at the customer premises.
14: DELIVERY AND INSTALLATION OF THE SERVICES EQUIPMENT
C&W shall deliver the Services Equipment to and install it at the
Customer Location.
15: MODIFICATIONS TO THE SERVICES EQUIPMENT
C&W may modify or replace the Services Equipment provided that it does
not detract from or impair the overall performance or operation of the
Services.
16: PREPARATION OF THE CUSTOMER LOCATION
The Customer shall at all times provide a secure electricity power
supply as well as suitable accommodation and environmental conditions for
the Services Equipment. C&W shall specify in advance and the Customer
will implement at its reasonable expense all preparations necessary for
the delivery and installation of the Services Equipment.
17: CONSENTS
17.1 The Customer confirm that in respect of the Customer Location the
Customer are (i) the occupier and (ii) the owner of the freehold or of a
lease for a term of at least 12 months and the Customer agree that:
(a) C&W may carry out works in connection with the installation
maintenance adjustment repair or alteration of the Services
Equipment and Apparatus;
(b) C&W may keep the Services Equipment installed at the Customer
Location; and
(c) C&W and its representatives may have reasonable access to the
Customer Location for the above purposes and to inspect the
Services Equipment and Apparatus and the Customer will obtain all
permissions, licenses and consents from third parties which are
necessary or desirable for the supply of the Services. This
provision shall remain in full force and effect notwithstanding
termination of this Agreement until such time as C&W have removed
all Services Equipment from the Customer Location and/or the building.
17.2 C&W will normally carry out the delivery and installation of Services
Equipment during its Normal Working Hours but may, on reasonable notice,
require the Customer to provide access at other times. At the Customer's
request, C&W may agree to work outside its Normal Working Hours and if
the work could be carried
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out during its Normal Working Hours the Customer shall pay C&W's
reasonable charges for complying with such request.
18: USE OF THE SERVICES EQUIPMENT
The Customer shall be responsible for the safe use of the Services
Equipment after delivery to the Customer Location and in particular (but
without limitation) the Customer shall:
(a) house and use the Services Equipment in accordance with its
Services Literature or such other written instructions as C&W may
notify to the Customer from time to time;
(b) keep the Services Equipment at the Customer Location and stationary
at all times;
(c) not add to, modify, or in any way interfere with or impair the
performance of the Services Equipment;
(d) not remove, tamper with or obliterate any words or labels on the
Services Equipment or any part of it, including, without
limitation, any identification xxxx(s) showing that it is C&W's
property;
(e) permit C&W to inspect or test the Services Equipment at all
reasonable times and to disconnect and remove the Services
Equipment when the Services is terminated.
19: OWNERSHIP AND RESPONSIBILITY FOR SERVICES EQUIPMENT
C&W shall retain title to the Services Equipment at all times. On all
occasions when the ownership of the Services Equipment is relevant, the
Customer shall make third parties aware that the Services Equipment is
C&W's property. The Customer shall:
(a) be responsible for the Services Equipment whilst it is in its
custody and shall be liable for any loss or damage to the Services
Equipment (except in so far as it can be shown that any such loss
or damage is attributable to C&W's negligent act or omission). The
Customer shall notify C&W immediately of any loss or damage;
(b) at C&W's request, produce evidence satisfactory to C&W that the
Customer has effected and is maintaining suitable insurance in
respect of all relevant risks relating to the Services and if any
payment is made under a policy in relation to the Services
Equipment. The Customer shall pay this amount to C&W;
(c) not permit or suffer any execution or distress to be levied or used
against the Services Equipment or permit or suffer the Services
Equipment to be seized under or affected by any distress,
execution, or other legal process;
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(d) not attempt to let, sell, charge or otherwise deal with the
Services Equipment in a manner prejudicial to C&W's rights therein.
20: SERVICES SUPPORT
20.1 If the Customer detects a defect in the performance of Services the
Customer shall notify C&W of the nature of the defect and shall request
Services Support to be provided. Any such notification and request shall
be made by telephone to C&W's customer Services.
20.2 Subject to any obligations imposed by the License, C&W shall use its
reasonable endeavours to report either to the Customer Location, or the
location at which C&W determine the cause of the reported fault is
located or, where appropriate, to attend to the fault at a point remote
from the location of the fault, as soon as reasonably practicable.
20.3 If C&W identify a fault in the Services Equipment C&W shall either
repair or replace the faulty Services Equipment or any part of it as
soon as reasonably practicable.
20.4 If C&W need to carry out Services Support at the Customer Location, C&W
shall, where it is reasonably practicable, carry out such maintenance at
a time previously agreed with the Customer. If it is not reasonably
practicable for a prearranged time to be agreed or in the absence of
agreement C&W shall be entitled to carry out the Services Support on
notifying the Customer either orally (confirming such notification in
writing) or in writing. C&W may interrupt Services in order to provide
Services Support but shall use reasonable endeavours to ensure minimum
disruption to the Services and in any event shall ensure that the
Customer are given the maximum period of warning practicable in the
circumstances.
21: NOTICES
21.1 Any notices to be given under the Agreement shall, unless otherwise
expressly stated, be in writing and shall be given by sending the same
by first class post or facsimile transmission to the party's address
stipulated in the Agreement or such other address as may be designated
in writing from time to time or, if no such address is stipulated or
designated, then to the registered office of that party.
21.2 Any notice sent by first class post shall be deemed (in the absence of
evidence of earlier receipt) to have been delivered two days after its
dispatch. Any notice given by facsimile transmission shall be deemed to
have been delivered on the next working day following transmission,
provided that the sender has confirmation of transmission.
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22: ASSIGNMENT/SUBCONTRACTING
22.1 The Customer shall not assign or delegate all or any of its rights and
obligations under the Agreement without C&W's prior written consent,
such consent not to be unreasonably withheld.
22.2 C&W shall have the right to assign or transfer all or any of its rights
and obligations under the Agreement to an Associated Company on
notification to the Customer.
22.3 Subject to clause 22.2, C&W shall not assign or delegate all or any of
its rights and obligations under the Agreement without the Customer's
prior written consent, such consent not to be unreasonably withheld.
23: FORCE MAJEURE
Neither party shall be liable to the other under the Agreement, for any
loss or damage which may be suffered by the other party due to any cause
beyond the first party's reasonable control including without limitation
any act of God, inclement weather, failure or shortage of power
supplies, flood, drought, lightning or fire, strike, lock-out, trade
dispute or labour disturbance, the act or omission of Government,
highways authorities, other telecommunications operators or
administrations or other competent authority, the obstruction by a third
party of line of sight between microwave installations, war, military
operations, acts of terrorism or riot, difficulty, delay or failure in
manufacture, production or supply by third parties of the Services
Equipment.
24: ENTIRE AGREEMENT
24.2 The Agreement represents the entire understanding between the Customer
and C&W in relation to its subject matter and supersedes all prior
agreements understandings or arrangements made by either party, whether
oral or written.
24.2 Any terms and conditions (including dates) on any purchase order or
other document whatsoever which the Customer issue in connection with
the Agreement shall not be binding on C&W nor be used to interpret the
Agreement.
24.3 Each party acknowledges that it is not entering into this Agreement in
reliance on any representation of the other except those contained in
this Agreement and in the event of misrepresentation (other than
fraudulent misrepresentation) the only remedy available shall be a claim
for breach of contract.
25: MODIFICATION
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25.1 C&W shall have the right by notice in writing to the Customer to modify
the Agreement at any time so as to comply with any regulations or other
requirement applicable to or imposed upon C&W under the Licence or by
any competent authority.
25.2 Except as stated in clauses 25.1 the Agreement may only be modified if
such modification is in writing and signed by a duly authorised
representative of such party.
26: NO WAIVER
Failure by either party to exercise or enforce any right conferred by
the Agreement shall not be deemed to be a waiver of any such right nor
operate so as to bar the exercise or enforcement thereof or of any other
right on any later occasion.
27: SEVERABILITY
If any provision of the Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, the invalidity or unenforceability of such provision
shall not affect any other provisions and all provisions not affected by
such invalidity or unenforceability shall remain in full force and
effect.
28: GOVERNING LAW
The Agreement shall be governed by and construed and interpreted in
accordance with English law, and the parties hereby submit to the
non-exclusive jurisdiction of the English courts.
AS WITNESS this Agreement has been signed by or on behalf of the parties the
day and year first before written.
Signed by
duly authorised signatory for and on behalf of
CABLE & WIRELESS COMMUNICATIONS
SERVICES LIMITED
/s/ Xxxx Xxxxxxx
-------------------
Xxxx Xxxxxxx
13/1/99
Signed by
duly authorised signatory for and on behalf of
STARTEC GLOBAL COMMUNICATIONS CORPORATION
/s/ [illegible]
-------------------
[illegible]
Jan 13, 99
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SCHEDULE 1
1. BACKHAUL CONNECT
1.1 SERVICES DEFINITION
The Backhaul Connect offering comprises:
- a diverse path (the "Primary Path") from C&W's IDTC to the cable station.
- where it is available, a single path (the "Secondary Path") from C&W's IDTC
to the restoration cable. Data rates supported are from 2.048Mbit/s to
STM-1s(155Mbit/s).
1.2 SERVICES DETAILS
Cable System: FLAG
Cable Station: PORTHCURNO/LANDS END
IDTC: THAMESSIDE
Capacity: 2MBITS
Initial Period: FOR THE LIFETIME OF FLAG CABLE SYSTEM
- Is restoration available? YES
- If YES, is the requirement for
(1) Less than 1 STM-1? YES. if so, the Customer is obliged to take
restoration.
(2) 1 STM-1 or more? NO. If so, the Customer: [does/does not] require
restoration.
1.3 CHARGES
Primary Path Rental - Recurring Charge; N/A
Restoration Path Charges: -pound sterling-3.79 per km per annum (Restoration
up to 45 days per year)
Minimum Charged Distance: 50km
Total Restoration Charge: -pound sterling-189.50 per annum
An additional charge will be applied as follows if more than 45 days
restoration during the year is necessary: -pound sterling-0.085 per km per
day. This will come into effect following the services commencement date or
in any subsequent year.
Connection - Non-recurring Charge: N/A
Non-recurring charge - Backhaul IRU: -pound sterling- 54,200
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2. ACCESS CONNECT
2.1 SERVICES DEFINITION
The Access Connect Services provides connectivity from the Customer Location
to the IDTC. It can be requested as PDH/SDH. For SDH, there is the optiion of
single or diverse fibres. Data rates to be supported are: 2Mbps; 8Mbps; 24Mbps;
45Mbps; 140Mbps; 155Mbps.
2.2 SERVICES DETAILS
- IDTC: THAMESSIDE
- Customer location: 00 XXXXXXX XXXXXX, XXXXXX XX0X 0XX
- Capacity: 2MBITS
- Initial Period: LIFETIME OF FLAG CABLE SYSTEM
- PDH/SDH: SDH
- Diverse Routing? NO
- Cross-connects? NO
2.3 CHARGES
Instalation Charge: -pound sterling-550 One-off.
Annual Rental Recurring Charge: -pound sterling-2,778 per annum
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