Exhibit 10.8
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omissions have been indicated by asterisks ("*****"), and the omitted text has
been filed separately with the Securities and Exchange Commission.
[T-SYSTEMS LOGO]
AMENDED AND RESTATED FULL-TIME SATELLITE
AND TERRESTRIAL SERVICES AGREEMENT
THIS AMENDED AND RESTATED FULL-TIME SATELLITE AND TERRESTRIAL
SERVICES AGREEMENT (the "Agreement") is made and entered into as of this 30 day
of September, 2003 by and between T-Systems Canada, Inc. (f/k/a Deutsche Telekom
(Canada), Inc.), a Canadian corporation, with its principal place of business
located at 00 Xxxx Xx, Xxxxx 0000, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0 ("TSC") and
STV International B.V. with its registered office and operational address in
Strawinskylaan 3111, 1077 ZX Amsterdam ("Customer") (together, the "Parties").
1. Customer has contracted with TSC in an agreement dated July 20, 2001
("Original Agreement") for the provision of certain services described herein
(the "Services") and subject to the technical parameters contained in Annex 4
attached hereto;
2. Customer and TSC have agreed to amend and restate the terms and conditions of
the Original Agreement to reflect the Parties current business relationship. The
terms and conditions of this Amended and Restated Full-Time Satellite And
Terrestrial Services Agreement replace and supercede the terms and conditions
set forth in the Original Agreement in all ways, the Amended and Restated
Full-Time Satellite And Terrestrial Services Agreement will constitute the
entire agreement of the Parties with regard to the Products and Services
described herein, and the Original Agreement is hereby terminated by agreement
with effect from 30 September 2003; and
3. TSC agrees to provide the Service to Customer, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
obligations contained herein, the Parties agree as follows:
1. Services to be Provided by TSC.
(a) In General. TSC, acting through its corporate affiliates, shall
provide, and Customer shall accept, the Services as described herein
and in Annex 4 hereto, subject to and in accordance with the terms
and conditions of this Agreement.
(b) Service Elements. Beginning with the Service Commencement Date as
defined in Section 1(g) below, TSC shall provide to Customer two
elements of full-time service, jointly comprising the Services:
(i) a contribution service (the "Contribution Service") comprised
of a fibre link between the Customer's Point of Origination
(UPC Digital Media Centre, Amsterdam, The Netherlands) and
TSC's Usingen earth station located in the vicinity of
Frankfurt, Germany, the point of uplink transmission. The
fixed rate fibre link will be physically comprised of two (2)
El data rate circuits (each bearing a data rate of 2.048 Mbps)
whose bandwidth will be multiplexed to accommodate the
Customer's signal bearing a maximum data rate of 3.0 Mbps as
specified in Section 2 below. TSC will provide this fibre link
as a service designated as a `CityInterconnect-International'
("CICI") service as further described in Annex 1 attached
hereto. In the event of any inconsistency between Annex 1 and
the terms and conditions set forth herein, the terms set forth
herein shall prevail. Without limiting the generality of the
foregoing sentence, for the avoidance of doubt, the parties
acknowledge that the terms set forth herein shall, in the
event of ambiguity or conflict, prevail over Sections 6, 7, 9,
10, 12.2, and 12.4 of the CICI Terms & Conditions.
(ii) a distribution service (the "Distribution Service"), comprised
of the reception of the Contribution Service signal at Usingen
earth station for purposes of full-time digital satellite
transmission. TSC will provide a redundant uplink of the
Customer's signal to a 3.0 Mbps digital slot on TSC's Divicom
MCPC satellite platform located on Transponder 129 of the
Hotbird 6 Satellite located at 13.0 degrees East. For purposes
of the provision of the Services, TSC warrants that this
platform is MPEG2 (4:2:0), DVB-compliant. The Parties
acknowledge and agree that the Services will not be
statistically multiplexed by TSC.
(iii) The Customer Point of Origination is hereby designated as:
UPC Digital Media Centre
Kon. Xxxxxxxxxxxxxxx 0-0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
The Customer has the right to change the location of the Point
of Origination at any time during the contract by providing
TSC with 60 days written notice. In this event, TSC would
modify the routing on a reasonable efforts basis and any
incremental charges associated with the modification would be
passed on to the Customer.
(iv) Subject to a change in Service Charges as noted in Section
3(a) and to facilities availability, the Customer may request
an increase to its bandwidth requirements to 3.5 Mbps at any
time during the
2
Initial Term or any extension thereof upon sixty (60) days
notice. Upon such notice, the Parties will promptly commence
discussions regarding such requested change.
(c) Service Availability. Subject to the terms and conditions herein,
the Services shall be provided 24 hours per day, 7 days per week
(except, without limitation, for outages caused by reasonable
maintenance and repair, inclement weather and events of force
majeure) on a full-time basis during the term of the Agreement.
(d) Technical Compliance. The Services provided by TSC shall conform in
all material respects with the technical specifications set forth in
Annex 4 attached hereto.
(e) Specific Technical Equipment and Facilities. The Services will be
provided by TSC utilizing the following technical equipment and
facilities, which shall at all times remain within the control,
ownership and possession of TSC, all as more specifically described
in Annex 4 hereto:
(i) TSC shall provide ASI multiplexing equipment for purposes of
processing Customers transmission signals in connection with
the contribution service. Such multiplexing equipment will be
housed by TSC at UPC's facility at Customer's Point of
Origination pursuant to a separate contract between TSC and
UPC, and Customer shall have no rights or responsibilities
under such separate agreement, nor any ownership interest in
such multiplexing equipment.
(ii) TSC shall procure from a third party of its choice local loop
connections (in both Amsterdam and Frankfurt) and of long-haul
connection (from Amsterdam to Frankfurt) in connection with
the terrestrial portion of the Contribution Service.
(iii) TSC shall provide monitoring of the Contribution Service
through the use of the `Line Watch' software application that
furnishes alarms on the ASI Multiplex system and is integrated
with TSC's Network Monitoring systems (QSS).
(iv) TSC shall provide a dedicated IRD to monitor the satellite
transmission parameters of the Hotbird 6 satellite signal.
(v) The provision by TSC of a VHS tape playout machine at Usingen
earth station to be used in the following circumstances: a) If
the Contribution Service between the Facility and Usingen
fails; or b) If the Customer's conditional access service
fails. In the case of a) and/or b) above, the tape provided by
the Customer shall contain a maximum of 30 minutes of content
that is legally appropriate for
3
unencrypted broadcasting free to air, as governed by the
German Broadcast Authority.
(f) Useable Bandwidth. TSC notes, and the Customer hereby recognizes,
that the `useable data rate' on the Contribution and Distribution
Service is approximately 3.0 Mbps. The useable bandwidth of a
circuit is a function of capacity data rate less equipment overhead.
(g) Service Commencement Date. The Service Commencement Date is October
I, 2003.
(h) Legal and Regulatory Compliance. TSC shall be entitled, at all times
during this Agreement and without liability to Customer, to preempt,
suspend or terminate provisioning of any of the Services in the
event that a competent legal authority (in the reasonable
determination of TSC) prohibits, suspends, enjoins or otherwise
takes action to suspend or terminate, or that may culminate in
suspension or termination of, provisioning of the Services under
this Agreement ("Legal Action"). Except if immediate suspension or
termination is required or threatened by a competent legal
authority, and to the extent reasonably possible, TSC shall provide
the Customer with 10 business days' notice to take measures to
address the Legal Action before suspending its obligations to
provide the Service hereunder. In the event that the Legal Action
requires immediate suspension or termination of the Service, TSC
shall comply with that requirement and inform the Customer thereof
as promptly as possible. If TSC is required to terminate the
Services in whole or in part by a competent legal authority, it
shall have the right to terminate this Agreement in accordance with
Section 7(a) below. Except as otherwise provided in Section 9(d)
below, neither TSC nor Customer shall have any liability, (financial
or otherwise) to the other Party in the event of suspension or
termination of the Services in whole or in part pursuant to this
Section 1(h).
(i) Transmitted Content. TSC shall not be responsible in any way for the
content of the programming transmitted by Customer, and shall bear
no liability for any consequence, legal, commercial or otherwise,
that may arise from the transmission of any programming transmitted
by means of the Services pursuant to this Agreement by Customer. TSC
acknowledges the nature of the programming content to be transmitted
by Customer by means of the Services and the Customer agrees that it
will be, and will remain, in compliance with all relevant laws and
regulations with respect to the transmission of such content, and
will conduct its activities in respect of this Agreement so as to
avoid the occurrence of any Legal Action.
4
(j) Transponder Ownership. The Parties agree and acknowledge that title
to the Transponder shall remain at all times with TSC
notwithstanding the payment of the Service Charges by Customer under
this Agreement.
2. Responsibilities of Customer.
Customer shall be responsible for the timely performance of the following
actions:
(a) Technical Preparation and Procurement. (i) the procurement,
installation, testing and maintenance of playout; MPEG2 digital
video encoding; and conditional access equipment (altogether
described as 'program origination equipment') related to Customer
programming within the Point of Origination;
(ii) the procurement and maintenance and ensuring the technical
compatibility of all program origination hardware and other
equipment provided by Customer;
(iii) securing the technical transfer ("handing off') of a digital
signal to TSC at the Point of Origination at a data rate of
3.0 Mbps in DVB-ASI format;
(iv) the provision to TSC of two (2) authorized smart cards and two
(2) Irdeto PCMCI card readers to be used solely for the
purpose of monitoring the Customer's video and associated
audio signal at Usingen earth station receipt of which by TSC
is hereby acknowledged.
(b) Regulatory Matters. (i) Customer shall be responsible for the timely
procurement and maintenance of all necessary regulatory and
broadcast licenses, permits and authorizations, copies of which are
attached hereto as Annex 2;
(ii) Customer warrants that it will not, directly or indirectly,
engage in or permit the marketing, sale or distribution of any
device or item, including Smart Cards, in violation of any
applicable laws and regulations of each jurisdiction in which
the Services are originated, transmitted and/or received;
(iii) Customer warrants that all content transmitted by it utilizing
the Services are, and will remain at all times during the term
of this Agreement, in compliance with all applicable laws and
regulations of each jurisdiction in which the Services are
originated, transmitted and received.
3. Payment.
5
(a) Service Charges. Customer agrees to pay TSC the monthly amount of
***** Euros for each month of full-time service provided to Customer
during the Term of Service ("Service Charges"). Income taxes on the
charge of TSC are excluded from the scope of this provision. Such
Initial Service Charges shall apply during the Initial Term (as
defined in Section 6 below). If the Customer exercises its ability
to increase the bandwidth of the Distribution Service to 3.5 Mbps as
set forth in Section 1(b)(iii), then the Customer will agree to pay
the monthly amount of ***** Euros (or the pro-rated amount subject
to the date of the increase) for each month of full-time Service
provided to Customer during the Term of Service.
(b) Invoicing. TSC shall submit an invoice to Customer on the first day
of each month during the Term for the Service Charges for the
applicable month of Service. Customer shall make payment of each
invoice by wire transfer in immediately available funds to TSC no
later than thirty (30) days following receipt of such invoice;
provided that the initial payment shall be due and owing no later
than the Commencement Date. If payment is not timely received by TSC
in accordance with the terms hereof, and such default or failure is
not remedied within a period of ten (10) business days after receipt
of written notice thereof from TSC, then TSC shall be entitled to
immediately terminate the Service without further notice to
Customer.
(c) Security Deposit. Customer has provided to TSC a security deposit in
the amount of ***** Euros applicable to the Distribution Services
only. The deposit will be applied to the last month of the
Customer's term of Service. If the security deposit is greater than
the total amount of Service Charges due and owing by Customer at the
end of the Term, any additional amount of the security deposit will
be remitted to Customer within 30 days of the end of the Term.
(d) Guaranty. The obligation of Customer hereunder, including but not
limited to, the payment of the Service Charges, shall be guaranteed
by Playboy TV International, LLC as set forth in Annex 3 hereto.
Notwithstanding the foregoing, the termination of the Agreement by
Customer for Commercial Failure, as set forth in Clause 7(b)(ii)
shall relieve Playboy TV International, LLC of its obligations to
guarantee the obligations of Customer.
(e) Competitiveness Review. If at any time following the second
anniversary of the Service Commencement Date, Customer receives two
bona fide offers from third parties to provide a package of
telecommunications services that is substantially similar to the
range of Services offered under this Agreement, including, without
limitation, fees, term, volume, product mix, functionality,
features, credits offered, level of service and geographic breadth
("Competitive Offers"), and such Competitive Offers
6
would result in an overall cost savings to Customer equal to or
greater than five percent (5%) over the then remaining Term of this
Agreement when compared to the effective rates charged by TSC, then
the Parties will meet to discuss competitive service alternatives
and other technological or marketplace developments. TSC and the
Customer will cooperate in efforts to develop a mutually agreeable
proposal within a commercially reasonable period of time that will
satisfy the concerns of both Parties and comply with all applicable
legal and regulatory requirements. This provision shall not apply to
a change resulting from a decision by the Customer to transfer
portions of Customer's traffic or projected growth to carriers other
than TSC. This provision does not constitute a waiver of any charges
or any terms and conditions applicable to the Customer, prior to the
time the Parties mutually agree to amend or replace this Agreement.
If the Parties are unable to reach mutual agreement on an
alternative proposal within thirty days of the Parties first meeting
to discuss the alternate proposals, then the Customer may, at his
option and upon ninety (90) days' written notice to TSC, terminate
this Agreement subject to payment of a Termination Fee equal to 25%
of the total fees due for the Service for the remainder of the Term
of Service.
4. Fault Reporting.
(a) Reporting. Customer will report any faults in the provisioning of
the service to TSC's Satellite Network Services ( SNS ) in Usingen
earth station ( Telephone number : + 00 0000000 00 / 05) as soon as
they are detected. All such reports must be stated, either initially
or promptly thereafter in writing. The agreed language for the fault
reporting is English.
(b) Investigation. TSC shall record and investigate all fault
notifications received by Custonier. In the event the fault report
is confirmed by TSC, TSC will undertake all reasonable efforts to
remedy the fault as quickly as possible. In case of a confirmed
fault the paragraphs of Section 5 below shall apply for calculating
the credits for outages. The findings of SNS will be final with
regard to the confirmation of a fault unless Customer provides
objectively verified proof of the alleged fault.
5. Interruption Credits.
(a) Calculation of Credits. In the event of an interruption, through the
Fault Reporting procedure noted above, in the Service to be provided
pursuant to this Agreement, which interruption continues for a
consecutive period of (30) minutes or more (an "Interruption"),
Customer shall be granted pro rata outage credits against the
monthly Service Charges, which credits shall be equal to the
aggregate amount of all such Interruptions or portions thereof
occurring during a particular month. The aggregate credit allowances
during a particular month shall be reflected in TSC's invoice
7
for the succeeding calendar month, and Customer shall be entitled to
deduct the amount of such credit allowances from its next succeeding
monthly payment of the Service Charges. In no event shall the
aggregate Interruption credits for one month exceed the Service
Charges for such month. For purposes of clarification, such credits
shall be based upon the (i) number of hours (or portion thereof)
during a month that the transponder that is part of Customer's
transponder capacity has failed to meet its performance
specifications, divided by (ii) the number of hours in the month,
and such fraction multiplied by (iii) Customer's lease fee,
applicable to the affected transponder for said month.
(b) Limitations. No credits shall be granted to Customer if the
Interruption is a result of, or is attributable, in whole or part
to: (i) the negligence or willful default of Customer; (ii)
temporary or intermittent Interruptions due to sun outages; (iii)
the failure or non-performance of any equipment provided or
maintained by Customer in connection with the Service under this
Agreement.
(c) Substitute Transponder Capacity. In the event that the Service is
interrupted for a period of longer than 2 consecutive hours due to
the technical malfunction of the satellite capacity provided, then
TSC will use all reasonable efforts to procure substitute
transponder capacity on another satellite at a cost reasonably
equivalent to the service Charges hereunder; provided however, that
TSC shall have no liability to Customer for its failure to procure
such substitute transponder capacity.
6. Term.
This Agreement shall have an initial term (the "Initial Term") of three
(3) years, commencing October 1, 2003 and continuing through September 30,
2006, unless terminated earlier as set forth herein. Except if terminated
by either Party by written notice to the other Party delivered at least
three months (90 days) before the end of the Initial Term or any extension
thereof, this Agreement shall be automatically extended for successive
terms of one year under the same terms and conditions as set forth herein.
7. Termination; Assignment.
(a) Termination by TSC. TSC shall have the right to terminate this
Agreement with immediate effect, with written notice of such
termination provided to Customer, upon the occurrence of any one or
more of the following acts or omissions: (i) upon a material breach
or default by Customer of any of the provisions of this Agreement
that has not been cured within thirty (30) days after receipt of
notice from TSC of such breach or default; (ii) upon the failure of
Customer to make timely payment in strict accordance with the
payment provisions of this agreement as set forth in Section 3
above; or (iii) in the event that the
8
performance of this Agreement pursuant to the terms hereof has been
prohibited by any court, governmental or regulatory body with
jurisdiction over either party and such prohibition is no longer
subject to further review or proceedings and as to which no stay has
been granted or request for stay is pending. Notwithstanding the
foregoing, except if immediate suspension is required by an
administrative or judicial or competent legal authority, TSC shall
provide the Customer with 10 business days' notice to cure the
situation before suspending its obligations to provide the Services
hereunder. In the event of such termination by TSC pursuant to this
Section 7, TSC shall have no further liability to Customer, and
Customer shall pay within ten (10) days thereafter all outstanding
amounts as of the date of termination
(b) Termination by Customer. The Customer may terminate the Agreement:
(i) upon a material breach or default by TSC of any of the
provisions of this Agreement that has not been cured within
thirty (30) days after receipt of notice from Customer of such
breach or default; or
(ii) at any time during the Initial Term of this Agreement or any
extension thereof, upon ninety (90) days' prior written notice
to TSC in the event that Customer ceases to transmit the
television channel known as at the date hereof as Spice
Platinum or any successor because, in Customer's sole
discretion, of the commercial failure of that channel. Such
termination shall be without penalty and shall not be subject
to any Termination or Cancellation Fees as set forth herein;
provided, however, that Customer may not recommence the
transmission of Spice Platinum or commence the transmission of
a television channel materially the same as Spice Platinum,
within eighteen (18) months of the date of such termination.
If Customer recommences transmission within the eighteen month
period, Customer shall pay to TSC the Termination and
Cancellation Fees set forth in Section 7(b)(3) below; or
(iii) beginning two (2) years after the Service Commencement Date
for either Service for convenience subject to ninety (90) days
prior written notice, provided that in the event of
termination for convenience, Customer shall pay a termination
fee equal to fifty percent (50%) of the Service Charges
associated with the remaining number of months in the Initial
Term or in any remaining successive term.
(c) Assignment. Neither Party may assign this Agreement without the
prior written consent of the other Party, provided however, (1) upon
prior written notice TSC may assign this Agreement without such
consent to a present or future affiliate, subsidiary, successor or
distributor or may
9
assign its right to receive payment; and (2) in the event Customer
requests the consent of TSC to assign its rights and obligations
hereunder, TSC shall not unreasonably withhold or condition its
consent to such assignment in the event of assignment of Customer's
rights and obligations hereunder (a) to any affiliate wholly owned
by Customer or (b) to any assignee which presents a reasonably
acceptable financial profile so as to meet its obligations under the
Agreement and possesses all appropriate licenses, permits and
authorizations required for use of the Services and which proposed
assignee does not compete with TSC or its affiliates in the
provision of satellite broadcasting services as provided for under
this Agreement; provided in each case that, in the event of any such
assignment by Customer, Customer shall remain fully responsible for
the performance of all obligations and liabilities under this
Agreement notwithstanding such assignment by Customer.
8. Notices.
Notices under this agreement will be provided to the following persons:
TSC: Xxxxxxxx Xxxxxx
Account Manager, Video Services
T-Systems Canada, Inc.
00 Xxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Tel.: 000 000 0000
Fax: 000 000 0000
with a copy to:
Legal Counsel
T-Systems North America
000 Xxxxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Customer:
Designated representative:
Xxxxx xxx xxx Xxxxx
XXX Xxxxxxxxxxxxx X.X.
Xxxxxxxxxxxxxx 0000
0xx Xxxxx
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: 000-0000-000-0000
ph: 011-3120-406-4444
with a copy to:
Xxxx Xxxxxxx
Executive VP
10
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
11
Xxxxxxx Xxxxxxxx
Managing Director
Spice Television International
Xxxxx Xxxxx, Xxxxxxx Xxxx
Xxxxx
Xxxxxxxxx
Xxxxxx Xxxxxxx
XX0 0xX
Fax:00-00-00-00-0000
9. Liability and Warranty.
(a) Except as otherwise expressly agreed herein, with regard to
international communications service contemplated by this Agreement,
the liability exclusion in accordance with article 36 of the Geneva
International Telecommunications Convention of 1992 shall be
applicable to the liability of TSC hereunder.
(b) Neither Party hereunder shall be liable for consequential, special,
punitive, indirect and/or financial damages, lost profits, or other
losses or damages hereunder, whether such any of such damages are
foreseen or foreseeable by either Party.
(c) Customer warrants that the audio/visual programming transmitted over
the Service is not in breach of any legal or regulatory provision,
nor in any manner subjects TSC to legal liability. Customer agrees
that in no circumstances will the Service be used for the
transmission of the following contents: exploitation of minors,
paedophilia, sexual violence, bestiality, sadomasochism or
necrophilia, malicious provocation of crimes and offences and
content facilitating criminal associations.
(d) (i) Customer shall indemnify and hold TSC harmless against any and
all expenses, damages, costs, liabilities, and claims of every kind,
including, without limitation, reasonable counsel fees, by or on
behalf of any person or entity arising out of or caused by: (1) the
failure by Customer to comply with any law or regulation applicable
to Customer of any governmental authority, or (2) any claims by
third parties with respect to Customer's use of the Services;
provided however, that the aggregate liability of Customer under
this Section 9 shall be limited to an amount equal to the total sum
of all payment owed by Customer to TSC for the Services rendered in
connection with this Agreement.
(ii) TSC shall indemnify and hold Customer harmless against any and
all expenses, damages, costs, liabilities, and claims of every
kind, including, without limitation, reasonable counsel fees,
by or on behalf of any person or entity arising out of or
caused by: (I) failure by TSC to comply with any law or
regulation of any
12
governmental authority applicable to TSC, or (2) any claims by
third parties with respect to TSC's provision of the Services;
provided however, that the aggregate liability of TSC under
this Section 9 shall be limited to an amount equal to the
total sum of all payment received by TSC from Customer for the
Services rendered in connection with this Agreement.
(iii) This Section 9(d) shall survive termination of the Agreement
for a period of twelve (12) months.
(e) It is expressly agreed that all express and implied warranties,
including, but not limited to, warranties of merchantability or
fitness for any particular purpose or use, are expressly excluded
and disclaimed. It is further expressly agreed that TSC's sole
obligations and liabilities and Customer's exclusive remedies for
any cause whatsoever arising out of this Agreement and/or the
transactions contemplated hereby are limited to those specifically
set forth in this Agreement, and all other remedies of any kind are
expressly excluded.
(f) TSC undertakes that it will use all reasonable efforts to enable
Customer to have the benefit of any representations or warranties
that TSC has received from any manufacturer or provider of the
equipment for the Services.
10. Miscellaneous.
(a) This Agreement shall be governed by the laws of the State of New
York without reference to its conflict of law principles.
(b) The language of the Agreement, and all notices hereunder, is
English.
(c) All other disputes arising in connection with this Agreement shall
be finally settled by arbitration under the Rules of the American
Arbitration Association. The arbitration shall take place in New
York, New York, and shall be conducted in English. The parties shall
instruct the arbitrator(s) to conclude the arbitration process
within sixty (60) days after the commencement of arbitration. The
award of the arbitrators shall be final and binding. The parties
waive any right to appeal the arbitration award, to the extent a
right of appeal may be lawfully waived. Each party retains the right
to seek judicial assistance to compel arbitration and to enforce any
decision of the arbitrators, including the final award. The losing
party to the arbitration shall be responsible for all costs of
arbitration, including reasonable attorney's fees of the prevailing
party, unless otherwise determined by the arbitration. This Section
10(c) shall survive termination of the Agreement.
(d) Any waiver by either Party of the application of any provision of
this Agreement must be made in written form and must be accepted by
the
13
other Party, and any such waiver shall not be deemed to constitute
any subsequent waiver of any provision or right or claim under this
Agreement.
(e) This Agreement shall not be construed or deemed to create a
partnership, joint venture, affiliation or any other kind of legal
relationship between the Parties.
11. Force Majeure.
No failure or omission by either Party to carry out or to perform any of
the terms or conditions of this Agreement shall give the other Party a
claim against such Party, or be deemed a breach of this Agreement, if and
to the extent that such failure or omission arises from Force Majeure,
which shall include, but not limited to, acts of God; fire, flood, or
ether catastrophes; government, legal or statutory restrictions on forms
of commercial activity; or order of any civil or military authority;
national emergencies, insurrections, riots, wars; or strikes, lock-outs,
work stoppages, or other labor difficulties. In the event of any one or
more of the foregoing occurrences, notice shall be given by the party
unable to perform to the other Party and the Party unable to perform shall
be permitted to delay its performance for so long as the occurrence
continues. In such event, the other Party shall be entitled to suspend its
performance as long as such event or force majeure continues, provided
that the suspension of performance by such other Party shall not have the
effect of impeding resumption of performance of the other party declaring
the event of Force Majeure. Should the suspension of obligations due to
Force Majeure exceed thirty (30) days of continued interruption or sixty
(60) days in the aggregate, either party may terminate this Agreement by
sending a appropriate written notice to the other party without liability.
12. Legal Form, Amendment, Entire Agreement
(a) Amendments or supplements to this Agreement are only effective if
agreed to by both Parties in writing.
(b) If any provisions in this Agreement should be ineffective or
unenforceable, this will not affect the validity of the remaining
parts of the Agreement. In such an event, the Parties shall
undertake to replace the ineffective or unenforceable provision by
an effective or enforceable provision which comes as close as
possible to the spirit and purpose of the provision to be replaced.
(c) This Agreement, including all the component parts hereto, represents
the entire understanding of the Parties hereto with respect to the
subject matter hereof, supersedes all prior negotiations, agreements
and tariffs regarding such subject matter.
(d) This Agreement may be executed in one or more counterparts, each of
which shall constitute one and the same instrument.
14
13. Confidentiality.
The contents and substance of this Agreement shall in no event be
disclosed by either Party or their employees to third parties except for
purposes of fulfilling obligations required by this Agreement, or with the
prior written consent of the other Party hereto, or as may otherwise be
required by law. Notwithstanding the foregoing, in the event either Party
has entered into discussions with a third party, involving either a joint
venture, merger or acquisition, or the sale of all or substantially all of
the assets of the Party to which this Agreement pertains, then such party
may disclose the terms of this Agreement to such third Party, provided
such disclosure is pursuant to a Non-Disclosure Agreement. This Section 13
shall survive the termination of the Agreement for a period of 12 months.
14. Press Releases.
Each Party agrees that no press releases or other announcements regarding
this Agreement or the Service shall be issued or made by either Party
without the prior written approval of the other party, not to be
unreasonably withheld. Notwithstanding the foregoing, that Customer may
issue a press release provided that such press release does not refer to
TSC or any of its affiliates, unless TSC provides its prior written
consent. Both Parties will inform its subcontractors, if any, under this
Agreement, and will use its best efforts to ensure that its subcontractors
adhere to this provision.
T-SYSTEMS CANADA, INC. STV INTERNATIONAL BV
By: /s/ [signature illegible] By: /s/ [signature illegible]
Title: President T-Systems Canada Title: Director
Date: Oct. 6/03 Date: 30/9/03
15
List of Annexes
Annex 1
CICI Terms & Conditions
Annex 2
Copy of Customer Broadcast License
Annex 3
Guaranty
Annex 4
Service Concept
16
Annex 1
T-Systems International GmbH
General Terms and Conditions
for CityInterConnect international.
T-Systems International GmbH (hereinafter referred to as T-Systems) shall
provide CityInterConnect international in accordance with the provisions
of the German Telecommunications Customer Protection Ordinance and the
following General Terms and Conditions. The German Telecommunications
Customer Protection Ordinance shall apply even if it is not expressly
referred to in the following terms and conditions.
1 Subject matter of terms and conditions
The following terms and conditions set forth the terms governing the
provision of CityinterConnect international of T-Systems.
2 Standard Service
2.1 Monthly charges
Subject to technical and operational feasibility, T-Systems shall provide
the customer with a CityinterConnect international with transmission rates
between 1,920 kbit/s and 622 Mbit/s and with a monthly average
availability of 99.8% relating to the respective transmission path.
CityInterConnect international is a permanent international transmission
path with digital interfaces (full circuit) between selected cities in
Germany and other countries in accordance with the list of countries shown
below. CityInterConnect international serves the purpose of transmitting
digital signals to the extent possible with the existing technology. They
shall be provided with interfaces in accordance with the ITU-T
recommendations shown in the table below.
2.2 Installation
In the vicinity of the customer's first terminal at each end of the
CityInterConnect international, T-Systems shall install a connecting unit
that serves as the termination of the CityInterConnect international.
The installation of the CityinterConnect international - especially its
routing within T-Systems' network - shall be carried out in compliance
with the rules governing the standard installation procedure used by
T-Systems at the time of performance.
2.3 Maintenance windows
T-Systems shall schedule maintenance windows, in particular, for the
purpose of modifying the network configuration. The customer shall be
notified thereof at least one week in advance.
During maintenance window periods, T-Systems may put equipment out of
operation. Maintenance window periods are not included in the calculation
of availability.
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General Terms and Conditions
3 Additional Services
By agreement and subject to technical and operational feasibility,
T-Systems shall in particular perform the following additional services
for an additional charge:
a) Relocate, replace or modify the connecting unit and relocate the
subscribers drop;
b) Provision by T-Systems of 19-inch cabinets in foreign
telecommunications equipment centers. The service shall be provided
in accordance with the additional terms and conditions for the
provision of equipment accommodation.
4 Fault clearance
Subject to technical and operational feasibility, T-Systems shall
eliminate any faults in its equipment without undue delay. In this regard,
T-Systems shall render the following services:
4.1 Reporting faults
Faults may be reported to T-Systems 24 hours a day, seven days a week, by
calling a customer service telephone number.
4.2 Customer service hours
Customer service shall be available twenty-four hours a day, seven days a
week.
4.3 Customer service appointments
If necessary, T-Systems shall arrange a time with the customer for a
service technician's visit. In the event that service cannot be rendered
during the agreed period due to reasons attributable to the customer,
another time shall be arranged and additional travel expenses charged, if
applicable.
4.4 Response period
Upon request, T-Systems shall inform the customer of the initial results
within one hour after the fault has been reported, provided a number for
the return call has been given. The initial response to the customer may
also be made during the service technician's visit.
4.5 Interim report
Upon request, T-Systems shall call the number provided once an hour after
the end of the response period to give an interim report on the status of
the work and the outlook for additional measures.
4.6 Subsequent notification
T-Systems shall inform the customer after a fault has been cleared. In the
event that the customer is not contacted upon the initial attempt,
additional attempts to subsequently notify the customer shall be made at
regular intervals.
5 Duties and obligations of the customer
In particular, the customer shall
a) pay the agreed prices in due time. For any check not paid or any
direct debit not honored or returned, the customer shall reimburse
T-Systems for the costs incurred to the extent that the customer was
responsible for the event giving rise to the costs.
b) provide any electricity in accordance with the features common in
the respective country (type of plug and voltage) needed for
installation,
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General Terms and Conditions
operation and maintenance and, if required, the potential
equalization including earthing at his own expense.
c) reimburse any costs incurred by T-Systems for checking its equipment
following submission of a fault report if the fault was not in
T-Systems' equipment and this could have been recognized by the
customer if he had made a reasonable effort to find the fault.
d) have all installation and modification work on the CityInterConnect
international performed solely by T-Systems.
e) upon T-Systems' request, provide assistance with measurements taken
for the purpose of clearing faults (measurement assistance).
f) not use for other purposes the telephone or ISDN line that has been
provided excursively for management purposes. In the event of use
for other purposes, the charges incurred thereby shall be billed.
6 Use by third parties
The customer shall not be permitted to make the CityInterConnect
international available to third parties for their permanent and exclusive
use without the prior consent of T-Systems. If T-Systems refuses to give
its consent, the customer shall not have a right of termination for good
cause.
7 Terms of payment
7.1 Starting on the third calendar day after the service has been installed
ready for operation, monthly charges shall be payable for the rest of the
month on a pro rata basis. Afterwards, these charges shall be paid on a
monthly basis in advance.
If the price is to be calculated for parts of a calendar month, 1/30 of
the monthly charge shall be due for each day.
7.2 Other charges shall be payable after the relevant service has been
performed.
7.3 The amount due must be credited to the account specified in the xxxx no
later than on the tenth day after receipt of the xxxx, or the competent
accounting office must have received a check for the amount shown on the
xxxx by that date. In the event that the customer furnishes a direct debit
authorization, T-Systems shall debit the agreed account with the billed
amount.
8 Changes in the prices, service specifications and general terms and
conditions
8.1 In the case of prices, service specifications and general terms and
conditions that have been approved or reviewed by the German Regulatory
Authority for Telecommunications and Posts (RegTP), T-Systems is obligated
to charge only those prices that have been approved or reviewed by the
German Regulatory Authority for Telecommunications and Posts. Agreements
on services containing prices other than those that have been approved or
reviewed shall be effective, provided that the approved price replaces the
agreed price.
T-Systems shall inform the customer in writing of any changes in prices,
service specifications and general terms and conditions approved or
reviewed by the German Regulatory Authority for Telecommunications and
Posts. This shall also apply to services whose prices consist of approved
or reviewed prices, provided
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General Terms and Conditions
that the change was based exclusively on a change in the approved or
reviewed prices, service specifications or general terms and conditions.
In the event of an increase in price or other changes to the disadvantage
of the customer, the customer may terminate the agreement effective from
the time the change goes into effect. T-Systems shall make specific
reference to this special termination right in the letter notifying the
customer thereof. Notice of termination must be received within six weeks
after receipt of the notification.
8.2 If T-Systems intends to change any other prices or change the general
terms and conditions or service specifications, the customer shall be
informed of the proposed change in writing. The changes shall be deemed to
be accepted if the customer does not object in writing. T-Systems shall
make specific reference to this consequence in the letter notifying the
customer thereof. The objection must be received within six weeks after
receipt of the notification. If the customer makes use of his right to
object, the changes proposed by T-Systems shall be deemed to be rejected.
The agreement shall then continue without the proposed changes. This shall
be without prejudice to the right of the parties to terminate the
agreement.
9 Change in the value-added tax
If the value-added tax prescribed by law changes, the monthly charges
shall be changed accordingly as from that date.
10 Delay in payment
10.1 If the customer is in arrears with a significant amount due, T-Systems
shall have the right to bar the customer's CityInterConnect international
at the customer's expense. In this case, the customer shall still be
required to pay the monthly charges.
10.2 in the event that the customer is in default
a) in the payment of charges, or a significant part thereof, for two
consecutive months, or
b) for a period of more than two months in the payment of an amount
corresponding to, or exceeding, the basic monthly charge for two
months,
T-Systems shall have the right to terminate the agreement without notice
and in the case of agreements with a fixed lease period may demand
compensation as a single, lump-sum payment that falls due immediately and
amounts to one-fourth of the monthly charges payable up to the end of the
regular period of the agreement.
The compensation payment shall be higher or lower if T-Systems proves that
the loss suffered was greater or the customer, that it was less.
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General Terms and Conditions
10.3 T-Systems reserves the right to assert any other claims arising from a
default in payment.
10.4 If T-Systems fails to perform the service on time, liability shall be in
accordance with the provisions of the German Telecommunications Customer
Protection Ordinance. The customer shall be entitled to withdraw from the
agreement only if T-Systems fails to perform the service within an
additional reasonable period of time granted by the customer, which must
be at least two weeks.
11 Lease period/termination
11.1 Lease period
CityInterConnect international shall be provided with a lease period of
one year or two, three, four or five years. The lease period shall begin
on the day the CityInterConnect international has been provided ready for
operation.
11.2 Termination
The agreement may be terminated by either party, at the earliest, with
effect from the end of the fixed lease period agreed upon. This shall be
without prejudice to the right to terminate the agreement for good cause.
After the expiration of the fixed lease period the agreement may be
terminated by either party with effect from the end of any weekday. For
any termination to become effective, a written notice of termination must
be received by T-Systems or by the customer at least eight weeks prior to
the date of termination. Saturdays are not deemed to be weekdays.
12 Failure to ensure availability
In the event that T-Systems fails to ensure the availability of an
CityInterConnect international and this is attributable to T-Systems, it
shall credit the amount stipulated below to the customer.
The prerequisite for the credit is that
- the customer notifies T-Systems without undue delay that the
CityInterConnect international is inoperable;
- the customer allows T-Systems to clear the fault in the
CityInterConnect international immediately and upon request provides
T-Systems with assistance in taking measurements. In the event that
T-Systems cannot clear the fault in the CityInterConnect
international for reasons attributable to the customer, the time
that counts towards the reimbursement shall be suspended;
- the period of inoperability (downtime) counted in seconds is more
than one minute per failure.
In the event that the ensured availability is not provided, the customer
shall receive a credit amounting to
- 10% of the monthly charge in the case of downtime of more than 86
minutes to 4 hours per calendar month;
- 20% of the monthly charge in the case of downtime of more than 4
hours to 8 hours per calendar month;
- 30% of the monthly charge in the case of downtime of more than 8
hours to 12 hours per calendar month;
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General Terms and Conditions
- 40% of the monthly charge in the case of downtime of more than 12
hours to 16 hours per calendar month;
- 50% of the monthly charge in the case of downtime of more than 16
hours per calendar month plus 1/720 of the monthly charge for each
additional hour or part thereof, but a maximum of 100 % of the
monthly charge for the connection.
T-Systems shall offset the credit against amounts due on the basis of this
agreement.
This shall be without prejudice to any compensation claims of the
customer.
13 Miscellaneous
13.1 If the customer, in turn, uses the contractually agreed services to
provide telecommunications services for the public, T-Systems assumes
liability with respect to providers of telecommunications services for the
public in accordance with the general legislation subject to the proviso
that the liability for financial loss caused through negligence is limited
to EUR 12,500 for each of the other provider's end customers who have
suffered damage. In this case, the sum of all claims for damages shall be
no more than ten million euros for each damage-causing event pursuant to
ss. 7 (2) of the German Telecommunications Customer Protection Ordinance.
If the sum of the individual claims for damages exceeds the upper limit,
the compensation shall be reduced in proportion to the ratio between the
total claims for damages and the upper limit.
13.2 The customer shall have the right to transfer the rights and obligations
under this agreement to a third party only with the prior written consent
of T-Systems.
13.3 The provisions of the German Product Liability Act shall remain
unaffected.
13.4 The contractual relations between the parties shall be subject to German
law.
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General Terms and Conditions
List of cities
o Domestic
Berlin, Dusseldorf, Frankfurt on the Main, Hamburg, Hanover, Nuremberg,
Munich and Stuttgart
o International (1)
Amsterdam, Brussels, Copenhagen, London, Madrid, Milan, New York, Paris,
Prague, Stockholm, Vienna and Zurich
Transmission rates
No. Transmission rate No. Transmission rate
---------------------------------- -----------------------------------
1 1,920 kbit/s 5 45 Mbit/s
---------------------------------- -----------------------------------
2 1,984 kbit/s 6 155 Mbit/s
---------------------------------- -----------------------------------
3 2,048 kbit/s 7 622 Mbit/s
----------------------------------
4 34 Mbit/s
Interfaces
DTE/Data Network Termination Unit interfaces
pursuant to ITU-T Recommendation Transmission rates
--------------------------------------------------------------------------------------------------------------------------------
1,920 kbit/s
to 2,048 34 45 155 622
Mechanical and functional electrical 1,984 kbit/s kbit/s Mbit/s Mbit/s Mbit/s Mbit/s
--------------------------------------------------------------------------------------------------------------------------------
15-pin D-sub connector
pursuant to ISO/IEC 4903
X.24 (X.21), but without V.11 X X o o o o
validation of the C and I
Interface circuits
--------------------------------------------------------------------------------------------------------------------------------
34-pin D-sub connector
pursuant to ISO 2593 V.11 X (2) X (2) o o o o
V35
--------------------------------------------------------------------------------------------------------------------------------
2 x BNC socket (coaxial) G.703, 75 O, X o o o o o
Signal with frame (2,048 asymmetrical,
kbit/s) pursuant to ITU-T HDB3 code
G.704
--------------------------------------------------------------------------------------------------------------------------------
Screw coupling, coax 1.6/5.6 G.703, 75 O,
pursuant to DIN 47295 asymmetrical,
Signal with frame (2,048 kbit/s) HDB3 cod X o o o o o
pursuant to ITU-T G.704
--------------------------------------------------------------------------------------------------------------------------------
RJ45 socket pursuant to G.703, 120 ?,
ISO/IEC 8877 symmetrical,
Signal with frame (2.048 HDB3 code X o o o o o
kbit/s) pursuant to ITU-T
G.704
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General Terms and Conditions
DTE/Data Network Termination Unit interfaces
pursuant to ITU-T Recommendation Transmission rates
--------------------------------------------------------------------------------------------------------------------------------
1,920 kbit/s
to 2,048 34 45 155 622
Mechanical and functional electrical 1,984 kbit/s kbit/s Mbit/s Mbit/s Mbit/s Mbit/s
--------------------------------------------------------------------------------------------------------------------------------
RJ45 socket pursuant to G.703, 120 ?, o X o o o o
ISO/IEC 8877 symmetrical,
Signal without frame HDB3 code
(transparent)
--------------------------------------------------------------------------------------------------------------------------------
2 x BNC socket (coaxial) G.703, 75 ?, o X X o o o
Signal without frame asymmetrical,
(transparent) HDB3 code
--------------------------------------------------------------------------------------------------------------------------------
Screw coupling, coax 1.6/5.6 G.703, 75 ?,
pursuant to DIN 47295 asymmetrical, o X X o o o
Frameless signal (transparent) HDB3 code
--------------------------------------------------------------------------------------------------------------------------------
2 x BNC socket (coaxial) G.703, 75 ?,
Signal without frame asymmetrical, o o o X o o
(transparent) B3ZS code
--------------------------------------------------------------------------------------------------------------------------------
Screw coupling, coax 1.6/5.6 G.703, 75 ?,
pursuant to DIN 47295 asymmetrical, o o o X o o
Frameless signal (transparent) B3ZS code
--------------------------------------------------------------------------------------------------------------------------------
2 x BNC socket (coaxial) G.703, 75 ?, o o o o X o
Signal with frame (155 asymmetrical,
Mbit/s) pursuant to ITU-T CMI code
G.707
--------------------------------------------------------------------------------------------------------------------------------
Screw coupling, coax 1.6/5.6 G.703, 75 ?,
pursuant to DIN 47295 asymmetrical,
Signal with frame pursuant to CMI code o o o o X o
ITU-T G.707
--------------------------------------------------------------------------------------------------------------------------------
Optical connection pursuant to G.957 (optical o o o o X X
88135-01 Signal with frame interface)
pursuant to ITU-T G.707
----------
(1) Information on other cities in which CityInterConnect international can be
installed shall be provided upon request
(2) Only provided for links outside of Germany.
This translation H not the authentic text. The German version shall be part of
the agreement.
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