SERVICE AGREEMENT
BETWEEN
FONETEL GLOBAL COMMUNICATIONS AB
AND
NORDNET OY
FOR
INTERNATIONAL TELECOMMUNICATIONS SERVICES
THIS AGREEMENT, made and entered into this 26th day of January 1995, between
Fonetel Global Communications AB, a corporation organized and existing under
the laws of Sweden and having its principal office at Xxxxxxxxxxx 0, X-000 00,
Xxxxx, Xxxxxx (hereinafter referred to as "Fonetel" which shall include its
successors or permitted assignees), and NordNet Oy, a corporation organized
and existing under the laws of Finland and having its principal office at
Xxxxxxxxxxxxxx 0, 00000 Xxxxxxxx, Xxxxxxx (hereinafter referred to as
"NordNet" which shall include its successors or permitted assignees).
WITNESSETH:
WHEREAS, Fonetel and NordNet desire to provide international
telecommunications services between Sweden and Finland and points beyond, and
WHEREAS, Fonetel and NordNet are permitted to provide such services in Sweden
and Finland, respectively, and
WHEREAS, Fonetel and NordNet are capable of providing international
telecommunications services, and
WHEREAS, Fonetel and NordNet (hereinafter referred to cumulatively as the
"Parties" or singularly as the "Party") have agreed on the terms which shall
govern the services as hereinafter set forth.
NOW, THEREFORE, the Parties, in consideration of the mutual agreements and
promises herein expressed, covenant and agree with each other as follows:
1.0 SERVICES AND RATES
1.1 Fonetel and NordNet will send PSTN and private line telephone traffic
IN CONFIDENCE TO FONETEL AND NORDNET
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(voice, data, and facsimile) to each other via a dedicated cable circuit
(hereinafter "the circuit") between Helsinki, Finland and Malmo, Sweden to be
established jointly by the Parties. Fonetel will receive traffic sent by
NordNet at its International Switching Center (ISC) in Sweden and provide
switching and termination of the traffic to the destination countries agreed
to and listed in Attachment I and NordNet will receive traffic sent by Fonetel
at its switching facility in Helsinki and provide switching and termination of
the traffic to the destination countries listed in Attachment II.
1.2 The maximum volume that the Parties may send to each other per month
will be established by the Parties later by mutual agreement.
1.3 The technical standards and methods of operation to be applied by the
Parties shall be the customary industry standards conforming to the relevant
CCITT/ITU-T recommendations.
1.4 The Parties shall pay each other for the aforementioned services on
the basis of the destination and duration of the calls at the rates listed in
Attachment I (applicable to calls received by Fonetel from NordNet) and
Attachment II (applicable to calls received by NordNet from Fonetel).
2.0 DIVISION OF RESPONSIBILITY AND EXPENSE FOR IMPLEMENTATION AND
OPERATION OF THE CIRCUIT
2.1 A dedicated telecommunications circuit between NordNet in Helsinki,
Finland and Fonetel in Malmo, Sweden will be established to accommodate the
planned for telephony traffic.
2.2 NordNet shall have responsibility for the Finnish end half-circuit and
Fonetel shall have responsibility for the Swedish end half-circuit for the
individual circuit segments making up the circuit. Each of the parties shall
be responsible, at its own expense, for making the necessary arrangements for
the acquisition of their own respective half-circuits by means of
administrative leases or other arrangement as necessary.
2.3 The amount of capacity to be acquired will be determined jointly by
the Parties at a later date. Each party shall have equal access to the use of
capacity on the circuit but, recognizing the mutual benefit that will be
derived by using the full capacity of the circuit, shall not consider any of
the capacity reserved for either's exclusive use and agree to allocate
capacity on a first need basis. In the event the allocation of the capacity
is significantly unbalanced as a result, the Parties agree to enter into good
faith discussions on determining any compensation that may be due either
Party.
2.4 Each party will be responsible for payment directly for its own half-
circuit.
IN CONFIDENCE TO FONETEL AND NORDNET
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2.5 Each Party shall, at its own expense, provide the telecommunications
facilities or interconnection facilities located within its respective country
and area of operation as necessary to make the subject circuit ready for
service. However, any compression equipment or special electronics and cards
that may be required to be installed in Fonetel's ISC at Malmo, Sweden in
order to accommodate NordNet's traffic shall be supplied and paid for by
NordNet. Fonetel will, at its own expense, implement the interconnection of
NordNet's traffic from the compression equipment or special electronics to
Fonetel's switching facilities. Likewise, should any compression equipment or
special electronics be required at NordNet's end to accommodate traffic sent
by Fonetel, then it shall be supplied and paid for by Fonetel. NordNet will
likewise, at its own expense, connect such Fonetel equipment or electronics to
its switching facilities.
2.6 NordNet shall route a minimum of one million minutes of traffic to
Fonetel during the term of this Agreement (one year from the service start
date). If NordNet shall have sent traffic of less than one million minutes
for the year, then NordNet shall pay Fonetel the sum equivalent to 3 U.S.
Cents per minute for the shortfall.
2.7 The intent of the Parties is to initiate timely the actions required
to commission the circuit upon signing of this agreement. The target date
agreed to by the Parties for commissioning the circuit is April 1, 1995. The
Parties will make best efforts to achieve this target commissioning date. In
the event that either Party anticipates that achieving the aforementioned
target may be delayed, they shall notify the other immediately of this and the
circumstances relating to the delay, mutually determine the impact to the
project of the expected delay in implementation, and enter into discussions to
establish a new target date and to amend such other terms of this agreement as
may be necessary.
3.0 INVOICING AND PAYMENT
3.1 Charges for calls received and transited will be calculated to the
nearest second applying the rates in Attachments I or II. Standard records of
call details, upon which charges shall be based, will be made and retained by
the Parties and made available to the other Party upon reasonable request.
3.2 The Parties will xxxx each other for services rendered monthly.
Invoices will be issued on the 10th of the month covering services provided
through the end of the prior month. Invoices will include as a minimum the
following information: date and time of call; number called; country called;
duration of call in minutes; and amount charged per call (based on destination
fee).
3.3 The rates contained in Attachments I and II do not include value added
taxes and any other sales taxes, duties or levies imposed by any authority,
government, or government agency. In the case that a tax, duty, or levy is
due, the respective amount will be added to the invoice and shown separately.
IN CONFIDENCE TO FONETEL AND NORDNET
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3.4 The rates contained in Attachments I and II are valid for one year
from the service start date. The service start date shall be the date,
mutually agreed to by the Parties, that the service is operational. The
service will be considered to be operational when the circuit is commissioned
and ready to commence servicing of traffic.
3.5 The terms of payment are 45 days NET. A late charge of 1.5 percent
per month will be assessed for late payments.
4.0 EFFECTIVE DATE AND DURATION OF AGREEMENT
4.1 This agreement is effective as of the day signed by the Parties and
shall continue in effect for a period of one year from the service start date
as defined in paragraph 3.4 above.
5.0 EARLY TERMINATION OF THE AGREEMENT
5.1 This agreement may be terminated early as follows:
5.1.1. By either Party in the event of non-receipt of payment of
invoices if payment becomes overdue by more than 30 days.
5.1.2. By either Party in the event that the target commissioning
date referred to in paragraph 2.5 is not met and the Parties, acting in
good faith, are unable to come to agreement on a revised schedule and/or
terms for continuation of the project and the target commissioning date
has been missed by at least 30 days.
5.1.3. In the event that any Party fails to make any payment due
under the Agreement to the other Party, the Party offended shall notify
the offender in writing concerning the failure to make payment as
required by the Agreement. The offending Party shall have 30 days from
the date of receipt of notice to remedy the offense.
5.1.4. Notwithstanding anything to the contrary expressed or implied
elsewhere herein, either Party may terminate this Agreement by notifying
the other Party in writing in the event the other Party fails to make any
payment due under the Agreement to the other Party after having received
written notice of failure to make payment and not having remedied the
failure within 30 days of written notification. Such termination shall
become effective at the end of 30 days after the date of notification of
intent to terminate this Agreement unless the Parties agree otherwise in
writing provided, however, that any monies due to either Party under this
Agreement shall not be affected by any such termination.
IN CONFIDENCE TO FONETEL AND NORDNET
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5.1.5. Notwithstanding the provisions of paragraph 5.1 above,
this Agreement may be terminated:
5.1.5.1. by either Party immediately upon written notice if
the other Party should become insolvent or files for bankruptcy;
or
5.1.5.2. by either Party immediately upon written notice if
the other party should fail to fulfill any of its obligations
under this Agreement and such failure is not remedied within 30
days from having received a written request for such remedial
action from the first Party; or
5.1.5.3. by either Party immediately upon written notice if
the other Party should fail to fulfill any of its obligations
under this Agreement because the activities under this Agreement
have become illegal as a result of changes in national and/or
international laws, regulations, or official interpretations of
the aforementioned laws and regulations.
6.0 LIABILITY AND QUALITY
6.1 Neither Party shall be liable to the other for any loss or damage
sustained by reason of any failure in or breakdown of the communications
facilities associated with the circuits used in providing the
telecommunications services under this agreement or for any interruption of
service, whatsoever shall be the cause of such failure, breakdown or
interruption and however long it shall last.
6.2 Both Parties shall employ best efforts to restore service in the event
of a failure and will provide repair and maintenance support at their
respective facilities on a 24 hour per day basis.
6.3 In the event that the availability and quality of the service shall
fail to achieve the levels prescribed by the CCITT/ITU-T for international
circuits over any consecutive three month period, the offended Party shall
notify the other in writing. In the event that the offending Party within 30
days fails to remedy the problem and return the service to the service levels
specified by CCITT/ITU-T for circuits of this class, the other Party shall be
entitled to terminate service on 30 days written notice.
6.4 The Parties guarantee to provide toll quality voice channels as
defined by the CCITT/ITU-T suitable for the transmission of voice, facsimile,
and modem traffic.
7.0 FORCE MAJEURE
7.1 No failure or omission by either Party to carry out or observe any of
IN CONFIDENCE TO FONETEL AND NORDNET
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the terms and conditions of this Agreement shall give rise to any claim
against such Party or be deemed to be a breach of this Agreement if such
failure or omission arises from any cause reasonably beyond the control of
that Party. Neither Party shall be liable to the other Party for any losses
or damages either direct, indirect, consequential, or otherwise sustained by
reason of any failure in or breakdown of the communications systems or
facilities herein provided for, or for any interruption of the service,
whether caused by act of God, insurrection or civil disorder, war or military
operations, national or local emergency, acts of omissions or any government
authority, industrial disputes, fire, lightning, explosion, inclement weather,
or other causes beyond the control of either Party.
8.0 ASSIGNMENT
8.1 This Agreement shall not be assigned or transferred by either party
without the prior written consent of the other party, which shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, either Party
may, without the other's consent, make an assignment to a successor,
affiliate, subsidiary, or to an entity controlling or under the same control
as such a Party. In the event of any such assignment, the successor shall
undertake in writing to the other the performance and liability for the
obligations, duties, and interests to which it is accountable as a succeeding
party to this Agreement, and the predecessor Party shall thereafter be
relieved of such obligation, duties, and interests except for matters arising
out of events occurring prior to the date of such undertaking.
9.0 GOVERNMENT APPROVALS
9.1 All agreements, covenants, undertakings and obligations herein made or
assumed by the Parties hereto are subject to the obtaining and continuance of
all necessary governmental licenses, consents, permits, authorizations, and
approvals. Each Party shall use its best efforts to obtain and to have
continued in effect such licenses, consents, permits, authorizations, and
approvals.
10.0 CONFIDENTIALLY AND IMPARTIALITY
10.1 All details contained within and connected with this Agreement should
be treated as trade secrets and commercially sensitive. They are exchanged in
good faith and should, under no circumstances, be given to any third party
without prior written consent from the other Party.
10.2 In recognition of the potential for future competition between the
two Parties, and their existing or future subsidiaries and joint ventures, it
is hereby agreed that the Parties will provide the service contracted for
despite the potential for competition and agree to provide service equivalent
to or better than service provided to other customers.
IN CONFIDENCE TO FONETEL AND NORDNET
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10.3 Since each Party will have access to the other Party's confidential,
sensitive, and/or proprietary information such as financial information,
supply and service information, marketing information, personal information,
and dialing patterns (all of the foregoing are hereinafter referred to as
trade secrets), therefore, each Party agrees to hold in confidence all trade
secrets and not to discuss, communicate or transmit to others or make
unauthorized use of the trade secrets in any manner or business. Furthermore
each Party agrees to take all reasonable action to prevent use or disclosure
of or to protect each others interests in trade secrets in the recognition
that violation of the secrecy will cause the other Party immediate and
irreparable harm.
10.4 Each Party agrees to impose identical or equivalent confidentiality
requirements on any of its suppliers of service regarding services provided to
either of the Parties or its customers.
11.0 AGREEMENT
This Agreement and any of the provisions hereof and annexes hereto may be
amended, modified or amplified only by written agreement signed by duly
authorized persons on behalf of each Party. This Agreement supersedes any and
all other agreements, oral or written, between the Parties with respect to
matters covered by this Agreement.
12.0 GOVERNING LAW AND FORUM
12.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of Sweden.
12.2 Any dispute which may arise out of or in connection with this
Agreement shall be settled amicably by the Parties, but failing results from
such efforts, shall be finally be settled by arbitration in accordance with
Swedish arbitration law. The place of proceedings shall be Stockholm and the
proceedings shall be conducted in the English language. The award shall be
final and binding upon the Parties.
13.0 NOTICES
13.1 All notices required by this Agreement to be given by either Party to
the other Party shall be in English and shall be delivered to the address
specified in the preamble to this Agreement. Delivery by facsimile and
confirmation by letter will be acceptable for the purposes of fulfilling the
requirements of written notification under the terms of this Agreement.
14.0 MISCELLANEOUS
14.1 The Parties intend for this Agreement to be renegotiated and extended
on an annual basis.
IN CONFIDENCE TO FONETEL AND NORDNET
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14.2 The titles in the headings of paragraphs are intended for
organization and convenience and do not apply in the interpretation of any of
the Agreement terms.
14.3 Fonetel and NordNet are independent contractors. Neither Party is
the partner nor joint venturer of the other. Nothing in this Agreement is
intended to create a separate and distinct legal entity under the laws of
Finland or Sweden.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective officials duly authorized on the day and year
first above written.
NordNet Oy Fonetel Global Communications AB
BY: /s/ Mika Liebkind BY: /s/ Xxxx Xxxxxx
----------------------- -------------------------
Mika Liebkind Xxxx Xxxxxx
TITLE: President TITLE: President and CEO
DATE:_____________________________ DATE: ______________________________
IN CONFIDENCE TO FONETEL AND NORDNET
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FONETEL GLOBAL COMMUNICATIONS AB
RATE SCHEDULE: 24 JANUARY 1995
DESTINATION SDR DESTINATION SDR
Albania ** Costa Rica **
Algeria ** Croatia **
American Samoa ** Cyprus **
Angola ** Czechoslovakia/Slovakia **
Antigua ** Denmark **
Argentina ** Xxxxx Xxxxxx **
Aruba ** Djibouti **
Ascension Island ** Dominica **
Australia ** Dominican Rep. **
Austria ** Ecudaor **
Bahamas ** Egypt **
Bahrain ** Equatorial Guinea **
Barbados ** El Salvador **
Bangladesh ** Estonia **
Belgium ** Ethopia **
Belize ** Falkland Islands **
Benin ** Faeroe Islands **
Bermuda ** Fiji **
Bhutan ** Finland **
Bolivia ** France/Monaco **
Bosnia/Herzegovina ** French Guiana **
Botswana ** French Polynesi **
Brazil ** Gabon **
Brunei ** Gambia **
Bulgaria ** Germany **
Bourkina Xxxxx ** Ghana **
Burma (Myanmar) ** Gibraltar **
Burundi ** Greece **
Cambodia ** Grenada **
Cameroon ** Guadeloupe **
Canada ** Guam **
Cape Verde Island ** Guatelmala **
Cayman Islands ** Guinea-Bissau **
Central African Rep ** Guinea Republic **
Xxxx Republic ** Guyana **
Chile ** Haiti **
China ** Honduras **
Christmas Island ** Hong Kong **
Colombia ** Hungary **
Comoros/Mayotte Is. ** India **
Congo Republic ** Indonesia **
Xxxx Island ** Iraq **
**Confidential Treatment Requested. The redacted material has been separately
filed with the Commission.
10
DESTINATION SDR DESTINATION SDR
Iran ** Netherlands Antilles **
Iceland ** Nepal **
Ireland ** Nicaragua **
Israel ** Niger **
Italy ** Nigeria **
Ivory Coast ** Niue **
Jamaica ** New Caledonia **
Japan ** New Zealand **
Jordan ** Norway **
Kenya ** Oman **
Kiribat ** Pakistan **
Korea, South ** Panama **
Kuwait ** Papua/New Guinea **
Laos ** Paraguay **
Latvia ** Peru **
Lebanon ** Philipines **
Lesotho ** Poland **
Liberia ** Portugal **
Libya ** Qatar **
Lithuania ** Reunion Island **
Luxembourg ** Romania **
Macao ** Russia **
Macedonia ** Rwanda **
Madagascar ** San Marino **
Malawi ** Sao Tome **
Malaysia ** Saudia Arabia **
Maldives Republic ** Senegal **
Mali ** Seychelles **
Malta ** Sierra Leone **
Xxxxxxxx Islands ** Singapore **
Mauritania ** Solomon Islands **
Mauritius ** South Africa **
Mexico ** Spain **
Micronesia ** Sri Lanka **
Moldavia ** St. Helena **
Montenegro ** St. Xxxxxx **
Mongolia ** St. Xxxxxxx **
Morocco ** Sudan **
Mozambique ** Suriname **
Namibia ** Swaziland **
Nauru ** Switzerland **
Netherlands ** Syria **
** Confidential Treatment requested. The redacted material has been separatly
filed with the Commision.
Taiwan ** United Kingdom **
Tanzania ** USA **
Thailand ** Vanuatu **
Togo ** Venezuela **
Tonga ** Vietnam **
Trinidad/Tobago ** Western Samoa **
Tunisia ** Wallis Islands **
Turkey ** Yemen **
Tuvalu ** Yugoslavia **
Uganda ** Zaire **
Ukraine ** Zambia **
Uruguay ** Zimbabwe **
United Arab Emirates **
** Confidential Treatment requested. The redacted material has been seperatly
filed with the Commision.
ATTACHMENT II
DESTINATIONS AND RATES
FOR TRAFFIC SENT BY FONETEL TO NORDNET
The fee stated in SDRs per minute, covers the full cost of switching and
terminating the call in the distination country. Fonetel will have no
financial obligation to the terminal carriet.
COUNTRY SDR/MIN COUNTRY SDR/MIN
Russia **
Estonia **
IN CONFIDENCE TO FONETEL AND NORDNET
** Confidential Treatment requested. The redacted material has been seperatly
filed with the Commision.
AMENDMENT NO. 001
TO THE AGREEMENT BETWEEN NORDNET AND FONETEL
DATED JANUARY 25, 1995
The following paragraph is hereby added under Section 3.0, "Invoicing and
Payment":
3.6 Invoices shall be paid in U.S. Dollars unless the Parties otherwise
agree. The amount payable in U.S. Dollars will be calculated by conversion of
the amount determined to be due under section 3.0 in SDRs (the Special Drawing
Rights, whose value relative to the U.S. Dollar and other currencies is
published in major international daily newspapers, like The Financial Times in
London) to U.S. Dollars at the time of invoicing.
AGREED TO FOR:
NordNet Oy Fonetel Global Communications AB
BY: /s/ Mika Liebkind BY: /s/ Xxxx Xxxxxx
----------------------- -------------------------
Mika Liebkind Xxxx Xxxxxx
TITLE: President TITLE: President and CEO
DATE:_____________________________ DATE: ______________________________
