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Exhibit 10.14
SERVICE AGREEMENT
This Service Agreement is made this 21 day of December 1995 between
Russian-American joint venture MACOMNET of Moscow, a limited liability company,
hereinafter referred to as Macomnet and represented by General Director Xxxxxx
Xxxxxxxxx and Corbina Telecommunications hereinafter referred to as Subscriber
and represented by Director CIS Operations Xxxx Xxxxxxxxxx.
The Service provided by Macomnet to Subscriber as described in Exhibit A
("Service Description") is subject to the following Terms and Conditions:
1. TERM.
The Term of this Service Agreement shall commence on the date of execution
of this Agreement by both Parties and shall extend thereafter until expiration
or renewal as defined in Exhibit A ("Service Description").
2. PAYMENT.
2.1 Subscriber will be invoiced for the Non-Recurring Installation Charge
upon signing the Acceptance Certificate.
The Non-Recurring Charge, each Monthly Recurring Charge as described
in Exhibit A, and any other charges including taxes in accordance with the
legislation in effect, penalties, reconnection fees, service expedite fees,
network reconfiguration fees (whenever requested by the Subscriber) and fees
imposed according to laws and regulations in force during this Service Agreement
are due and payable by the Subscriber within fifteen (15) days from the date of
invoice submission by Macomnet for such charges.
2.2 Upon completion of the cable construction work and installation of the
equipment required for rendering the Service, Macomnet will perform testing of
the channel for the Service. Positive results of the testing submitted to the
Subscriber represent the basis for submission of the Acceptance Certificate and
invoicing the Subscriber for the Non-Recurrent Installation Charge and the
Monthly Recurring Charge for the first month.
The Acceptance Certificate shall be signed by the Subscriber within
5 (five) business days thereafter. If the Subscriber fails to sign the said
Acceptance Certificate within the above mentioned five day term, provided the
testing results were positive, the Acceptance Certificate shall be deemed valid
on the unilateral basis.
The date indicated in the invoice shall be deemed the date the
Service is available for use ("Availability Date").
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2.3 Macomnet is entitled to invoice the Subscriber for the Monthly
Recurring Charge along with all the due taxes in conformity with acting
legislation not earlier than at the first day of each month.
2.4 Late payments will be subject to a late payment charge computed as one
half of one percent (0.5%) of the amount billed per each day of delay in
payments.
2.5 If payments are delayed for a term exceeding ten (10) days, Macomnet
reserves the right to cut off the Service. The Service shall be reactivated at
an additional cost as specified in Exhibit A to the present Agreement.
2.6 Subscriber's refusal from Service reactivation means cancellation of
the Service Agreement, when provisions of Article 7 of this Agreement shall
apply.
2.7 With any change of the tax policy or the legislation in effect,
Macomnet shall make unilateral tax adjustments.
2.8 Macomnet reserves the right for adjustment of the monthly recurring
charge not more often than once a year. This readjustment shall be made within
the reasonable levels and with a notice submitted to the Subscriber three months
in advance.
3. USE.
Subscriber may use the Service for any lawful purpose for which it is
intended, provided that Subscriber will not xxx the Service so as to interfere
with or impair the Service over any of the facilities and associated equipment
comprising the Macomnet network and associated equipment, or to impair the
privacy of any other party's communications over the Macomnet network facilities
and associated equipment.
4. SUBSCRIBER RESPONSIBILITIES.
4.1 Without any charge to Macomnet, Subscriber shall provide adequate
floorspace, guaranteed commercial power and lighting for installation of
Macomnet equipment and cable at the Subscriber's premises as well as the
necessary permits and right-of-way for laying cable through the adjacent
territory.
4.2 Within three days Subscriber will give approval to the equipment
layout diagram presented by Macomnet.
4.3 Subscriber shall allow and provide Macomnet use of 24 hour access for
personnel and egress cables and equipment to the Subscriber's premises, plus
acquire and provide right of use to any and all required riser shafts, conduits,
cable raceways
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or other facilities and communication structures, owned by the building
management that are necessary and required to provide the Service at the
Subscriber's premises.
4.4 If the Subscriber's premises or building is lacking the telephone
cable entry necessary for cable installation, the Subscriber shall provide for
the construction of such entry.
4.5 Subscriber shall allow all jobs to be done to provide the Service to
the Subscriber within the normal business hours (9 a.m. to 6 p.m. of the work
days of week). Should any other time be allowed for the purpose, the Subscriber
shall be charged extra in an amount agreed upon with Macomnet.
4.6 Upon termination of Services provided under the Agreement, the
Subscriber should provide Macomnet with the possibility to demount the installed
equipment and cables on coordinated term.
5. OWNERSHIP.
5.1 Subscriber agrees that all rights, title and interest in the
equipment, cables and associated materials provided by Macomnet hereunder shall
at all times remain exclusively with Macomnet, except as otherwise agreed upon
in writing between Macomnet and the Subscriber.
5.2 The equipment and cables supplied by Macomnet to provide Service in
compliance with this Agreement at Subscriber's premises shall at all time remain
the property of Macomnet, and access to such equipment and cables will not be
denied at coordinated time for Macomnet personnel to maintain, operate, extend
from fiber interconnection units or demarcation panels for other potential
Subscribers services or to provide any type of service that is required for the
safe and complete operation of Macomnet's network facilities and associated
equipment. Subscriber shall not create or permit to be created any violation of
the property rights for Macomnet's equipment, materials and cables.
6. MAINTENANCE.
6.1 Subscriber shall not perform any maintenance or repair to Macomnet
equipment or facilities, and Subscriber shall limit the access of unauthorized
persons to the Service and equipment.
6.2 Subscriber shall immediately report in writing any failure,
interruption or impairment of Service to the Macomnet Network Management Center,
duplicating same by phone or fax at the numbers of the Macomnet Network
Management Center. Macomnet shall take reasonable measures to maintain the
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Service within applicable parameters as defined in Exhibit B ("Performance
Standards").
6.3 If Subscriber requests fulfillment of any additional works not
associated with outage of Macomnet's equipment or damage of cables, the
Subscriber should pay for these works.
7. CANCELLATION.
7.1 If Subscriber cancels this Service Agreement prior to the Availability
Date, Subscriber shall reimburse Macomnet for all expenses incurred for
installation of the Service. After the Availability Date, provided Subscriber
has paid all charges to date referred to the organization of the Service.
Subscriber may cancel this Service Agreement by delivering to Macomnet a
cancellation payment, equal to six (6) months of the Monthly Recurring Charge of
the contracted amount.
7.2 Subscriber may cancel the Service at the expiration of the Term or
after the expiration of the Term by providing written notice to Macomnet sixty
(60) days prior to the intended termination date.
7.3 If the Subscriber cancels this Service Agreement within the first year
of a multi-year agreement term the Subscriber will reimburse Macomnet for all
installation costs incurred for the installation of the Service to the
Subscriber's premises and the required six (6) month cancellation fee referenced
above.
7.4 At cancellation of the present Agreement initiated by the Subscriber,
the later agrees to pay Macomnet for all the termination fees and penalties,
costs for cable removal from the cable access and routing facilities, and any
restoration fees or costs that may be incurred during the cable removal process
required to restore the cable access and routing facilities to the conditions
they were in prior to Services commencement, as well as possible penalties
imposed by the building administration.
8. DEFAULT.
8.1 The following events will be events of default under this Service
Agreement.
(a) failure by Subscriber to pay any sum payable by Subscriber under
this Service Agreement by the due date or in the agreed amount;
(b) failure by either party to perform any non-monetary obligations
under this Service Agreement within the period specified by the present
Agreement
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or within such additional period as reasonably necessary to cure such failure if
the failure cannot be cured within the specified period;
(c) if the total period when the Service remains unavailable due to
undoubtedly established fault of Macomnet amounts to more then 96 hours within
the period of subsequent 30 days, then Subscriber may cancel the Agreement, and
the provisions of the Article 7 of the present Agreement shall not apply.
8.2 On occurrence of an event of default through Macomnet failure, the
Subscriber shall be given a credit for the length of time Macomnet delays in
meeting its obligations. On occurrence of an event of default through the
Subscriber's failure, the Required In-Service Date per the Service Order shall
accordingly be postponed by Macomnet for the time the Subscriber delays in
meeting its obligations.
9. INTERRUPTION CREDIT.
9.1 Subscriber shall be entitled to a credit for any period in which the
Service remains unavailable for four (4) hours or more, unless the interruption
takes place through the Subscriber's fault or as expressly permitted by Exhibit
B of this Service Agreement. The amount of the credit shall be equal to the
amount Subscriber is charged for the Service for the period of time that the
interruption continues beyond four (4) hours, calculated in increments of thirty
(30) minutes.
9.2 No credit shall be allowed for any interruption or for any impairment
of the Service of less than (4) hours or for any times required to make tests or
adjustments to the Service, provided these tests or adjustments are requested by
Subscriber.
10. WARRANTY AND LIABILITY.
10.1 The Interruption Credit and Impaired Operating Condition Credit
described above shall be Macomnet's sole obligation and Subscriber's sole remedy
for any loss or damage sustained as a result of any interruption, service
impairment or failure of the Service, any facilities used in providing the
Service, or for any error, omission or delay for any reason.
10.2 Macomnet guarantees the compliance of the Service provided under this
Agreement to the performance standards specified in Exhibit B of the Agreement.
10.3 In no event shall Macomnet be liable to Subscriber or to any third
party for any indirect, special or consequential damages including, without
limitation, those based on loss of revenues of profits, or business
opportunities, whether or not
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Macomnet had or should have had any knowledge, actual or constructive, that any
such damages might be incurred.
11. INDEMNIFICATION.
Each party will indemnify the other party against all liability, damage
and expense, including reasonable attorney's fees and court costs ("Damages"),
arising out of any claim or judgement ("Claim") for damages to any property, or
injury to or death of any person, which arises out of any alleged act or
omission of the other party. Subscriber will also indemnify Macomnet against all
Damages from any Claim which arises out of Subscriber's use of the Service or is
made by a third party claiming through Subscriber to whom Subscriber provides
service using the Service.
12. ASSIGNMENT.
Neither party may assign this Service Agreement to a third party without
the express written consent of the other party, except (a) to any subsidiary,
parent company or affiliate or (b) pursuant to any sale of all the business
related to this Service Agreement or (c) pursuant to a financing, merger or
reorganization if the party's credit-worthiness is not thereby impaired.
13. NOTICE OF ASSIGNMENT.
The Subscriber hereby acknowledges that it has received notice of the
assignment to the European Bank for Reconstruction and Development of the rights
under this Service Agreement.
14. CONFIDENTIALITY.
14.1 If either party provides confidential information to the other in
writing and identified as such, the receiving party shall protect the
confidential information from disclosure to third parties with the same degree
of care accorded its own confidential and proprietary information, except that
neither party shall be required to protect as confidential any information which
becomes publicly available other than through the recipient or which is required
to be disclosed by a state or judicial order or which is independently developed
by the disclosing party.
14.2 Confidentiality obligations shall survive for a period of one (1)
year following expiration or termination of this Service Agreement. If the
parties have entered into a Confidentiality Agreement, its terms and obligations
shall be in addition to the terms and obligations of this Paragraph.
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15. NOTICES.
15.1 All notices shall be in writing and addressed as provided in Exhibit
C ("General Notices").
15.2 Notices shall be deemed given five (5) days after delivery to an
international overnight courier service, fee prepaid., return receipt requested
or if by facsimile, on the date indicated on the receiving party's facsimile
copy.
16. SETTLEMENT OF DISPUTES.
If the parties are unable to independently resolve any dispute pursuant to
this Service Agreement, the dispute shall be settled by the Arbitration Court of
Russia.
17. FORCE MAJEURE.
17.1 The obligations of the parties to this Agreement are subject to force
majeure and a party shall not be in default if any failure or delay in
fulfilling its obligations is caused by governmental acts or actions (official
or unofficial), blockades or embargoes; war or civil disorder; strike or other
labor problem; acts of God; natural disasters, or other circumstances which the
party could not foresee nor prevent through reasonable measures.
17.2 If any party shall be unable, by reasons of force majeure, to carry
out its obligations under this Agreement, the party so failing shall give a
written notice to the other party within a minimum possible time after the
occurrence of any such case. The obligations of the failing party shall
accordingly be suspended for the length of time of the continuance of such force
majeure event.
18. GENERAL PROVISIONS.
18.1 These terms and conditions and the terms and conditions of any
addendum, schedule or exhibit hereto (including, without limitation, Exhibits A,
B, C and D, as well as Macomnet Order Form and Acceptance Statement which are
incorporated herein by reference) constitute the entire agreement between the
parties and supersede any other oral or written understandings regarding the
Service described in this Service Agreement.
18.2 Both parties agree that sales representatives of Macomnet have no
authority to bind Macomnet or to alter the terms and conditions of this Service
Agreement. Failure of either party to insist on strict performance of any of
these terms and conditions shall not be deemed a waiver thereof. If any
provisions of this
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Service Agreement are held to be unenforceable, the remaining provisions of this
Service Agreement shall remain in effect. This Service Agreement shall be
governed by the laws of Russia.
18.3 This Agreement is signed in two originals, each in a bilingual form
in English and in Russian and consists of ( ) pages. Both texts are identical in
meaning. The Russian text is agreed to be predominant.
MACOMNET/MAKOMHET:
Xxxxxx Xxxxxxxxx
General Director
__________________________________________
Signature
__________________________________________
Date
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