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EXHIBIT 10.10
AGREEMENT NO. 01-08/98
This Agreement ("the Agreement") is made and entered into this 1st day of
August, 1998 in Moscow
between
Telecommunications of Moscow, a closed joint-stock company duly organized under
the laws of the Russian Federation, with its legal address being 27/29 str. 0
Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000, Russian Federation ("TCM") and
Company MTU-Inform, a limited partnership duly organized under the laws of the
Russian Federation, with its legal address being 27/29 str. 0
Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000, Russian Federation ("MTU-Inform"),
collectively referred to as "the Seller," on the one part,
and
KB Impulse, an open joint-stock company duly organized under the laws of the
Russian Federation, with its legal address being 10-12 0-xx Xxxxx Xx., Xxxxxx,
000000, Russian Federation ("KB Impulse"), referred to as "the Buyer," on the
other part,
collectively referred to as "the Parties" and individually as "the Party."
WHEREAS KB Impulse acting on the basis of License No. 10005 of the Ministry of
Telecommunications of the Russian Federation for the provision of cellular
radiotelephone communication services in the 1800-MHz band desires to receive
for use the telecommunications products and services of the modern digital
network to provide them to its clients;
WHEREAS TCM and MTU-Inform acting on the basis of respective Licenses No. 5846
and 5840 of the Ministry of Telecommunications of the Russian Federation for
the provision of local telephone communication services offer the said
telecommunications products and services of the modern digital network and
desire to provide them to the Buyer;
NOW, THEREFORE, in consideration of the mutual covenants and premises contained
herein the Parties hereto agree as follows:
ARTICLE 1. SUBJECT OF THE AGREEMENT AND OBLIGATIONS OF THE PARTIES
SUBJECT:
1.1. Connection of the Buyer's network to the Seller's network and further to
the public telephone network, provision of local, long-distance and
international communication services (hereafter "the Services") to the Buyer
through operation of a system including the access means of the Buyer's
subscribers and the means for the provision of the Services as set forth
herein, including Annex 1 hereto
OBLIGATIONS OF THE PARTIES:
1.2. The Seller shall:
1.2.1. Provide technical facilities and structures for connection of the
Buyer's network to the Seller's network for the purpose of providing, in 1998,
twenty thousand (20,000) numbers of the Moscow telephone network and local,
long-distance and international communication services in
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accordance with the terms and conditions of Annex 1 hereto. The Seller
guarantees allocation of the number capacity to the Buyer in the 7th million
zone of the Moscow telephone network upon receipt of a written request from the
Buyer and shall in advance inform the Buyer in writing about concrete numbers
and the date when the corresponding groups of the number capacity are to be
connected to the Moscow telephone network.
1.2.2. Ensure for the telephone numbers allocated to the Buyer the possibility
of outgoing and incoming long-distance and international communication through
the network of OAO Rostelecom (code 095).Sovintel's network (code 501).
1.2.3. Ensure round-the-clock operation of the switching nodes in which a
number capacity has been allocated to the Buyer.
1.2.4. Ensure the quality of the services provided to the Buyer hereunder in
accordance with the Rules for Provision of Services by Local Telephone Networks
approved by the Ministry of Telecommunications of the Russian Federation on May
24, 1994.
1.2.5. Invoice the Buyer for the provided Services in due time.
1.3. The Buyer shall:
1.3.1. In 1998, acquire from the Seller the Seller's number capacity in the
quantity of not less than fifteen thousand (15,000) Moscow telephone numbers.
1.3.2.. Provide to its subscribers the entire range of the Services envisaged
hereunder and make these services accessible through its switch.
1.3.3. Make full and prompt payments in respect of the Services provided to the
Buyer hereunder.
1.3.4. Prevent the use of equipment that has not been registered and certified
by the State Committee of the Russian Federation for Telecommunications and
Informatization.
1.3.5. Independently make settlements with its subscribers for the provided
Services.
1.4. On a mutual basis the Parties shall:
1.4.1. Carry on their activity in accordance with the Federal Law on the
Telecommunications, "Rules for Connection of Departmental and Dedicated
Telecommunications Networks to the Public Telecommunications Network" approved
by Resolution of the Russian Federation Government No. 1254 of October 19,
1996, other applicable regulatory documents in the field of telecommunications.
1.4.2. Bear individual responsibility to the State Committee for
Telecommunications and Informatization of the Russian Federation,
Gossvyaznadzor of the Russian Federation and other government agencies for the
operation of their own communication facilities within the framework of their
licenses, including responsibility for prompt execution of operational
documents.
1.4.3. Notify each other about the performance of all kinds of maintenance or
repair operations and about emergencies that may affect the Services provided
to the subscribers hereunder.
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ARTICLE 2. TERM OF THE AGREEMENT AND PROVISION OF SERVICES
The Agreement shall come into force from the date on which it is signed. The
term of the Agreement is indicated in Annex 1 hereto.
ARTICLE 3. ORDER FOR THE SERVICES
The Seller shall provide to the Buyer the Services listed in Annex 1 and
additional Services on the Buyer's requests in accordance with the Addenda
hereto.
ARTICLE 4. TERMS AND CONDITIONS FOR PROVISION OF THE SERVICES
4.1. The Seller hereby appoints the Buyer and the Buyer accepts the
appointment, in accordance with the provisions hereof, to act as the Seller's
agent for further provision of the Services.
4.2. The Seller shall be an exclusive operator in the provision of
long-distance and international communication services for the numbers provided
by the Seller hereunder. The Buyer shall make arrangements to allow its clients
access to the services of the long-distance and international network provided
by the Seller.
4.3. Throughout the term of this Agreement the Buyer shall buy Moscow telephone
numbers only from the Seller and hereby undertakes to transfer numbers to the
Buyer in a quantity sufficiently large for sale to all Buyer's clients who
desire to purchase cellular communication services from the Buyer in accordance
with Clause 1.2.1 hereof. This provision may be changed only on the basis of a
written agreement between the Parties. The breach of the Buyer's obligation set
forth in this Clause 4.3 hereof shall constitute a material breach in the
meaning of Article 11 hereof.
ARTICLE 5. PRICES, TARIFFS, TERMS OF SETTLEMENTS
The current prices and tariffs for the provided Services and the terms of
settlements between the Parties are set forth in Annex 1 hereto.
ARTICLE 6. CONFIDENTIALITY
6.1. Throughout the term of this Agreement and for a period of five (5) years
after its expiry, unless the disclosing Party agrees otherwise in writing, the
release of, access to or use of the proprietary information disclosed by the
disclosing Party to the receiving Party shall be restricted to those employees
and officials of the receiving Party's organization who must know the
proprietary information in order to allow the receiving Party property to
perform its obligations hereunder. The receiving Party shall keep the received
proprietary information confidential using the same degree of care as it uses
to protect its own proprietary information but in no case any less degree than
reasonable care. Without a prior written consent of the disclosing Party the
receiving Party shall not disclose any proprietary information to any third
party and shall not use such proprietary information for its own benefit or for
the benefit of any third party.
6.2. The obligations imposed by Clause 6.1 hereof shall not apply to the
proprietary information:
(1) which has become public knowledge through no fault of the receiving Party;
(2) which has already been lawfully received by the receiving Party and to which
Confidentiality Clause 6.1 is not applied;
(3) which is released pursuant to the binding order of a government agency or a
court, provided that prior to such release the receiving party shall inform the
disclosing Party to this effect in the maximum degree possible under these
circumstances.
6.3. All proprietary information disclosed hereunder shall be provided
temporarily, exclusively for use by the Parties in the performance of their
obligations.
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6.4. The Party which has received proprietary information from the other Party
in writing shall, upon a written request of the other Party, promptly return
the original and all copies of the received information to its proprietor.
6.5. All public reports, including press releases relating to the Agreement or
its performance shall be agreed upon by the Parties before they are submitted
for publication.
ARTICLE 7. LIABILITY OF THE PARTIES
The Parties shall be held liable for the breach of the provisions of this
Agreement and Annexes thereto subject to the provisions of applicable laws of
the Russian Federation and this Agreement.
ARTICLE 8. WARRANTIES, CROSS INDEMNIFICATION, LIMITATION OF LIABILITY
8.1. Neither the Seller nor any third party providing the Services make any
warranty, explicit or implicit, including but not limited to the warranties for
suitability or fitness for a particular application or purpose, other than the
warranties clearly set forth herein. The Parties understand that this section
concerns the Buyer and its buyers of the Services.
8.2. The Seller shall not be held liable for any damages, losses, claims and
other expenses which the Buyer or any third party may suffer because of the
acts or omissions for which the Buyer, its employees, agents, other
representatives or guests are responsible and the Buyer agrees to indemnify and
hold the Seller harmless from and against any and all such damages, losses,
claims and other expenses. Likewise, the Buyer shall not be held liable for any
damages, losses, claims and other expenses which the Seller or any third party
may suffer because of the acts or omissions for which the Seller, its
employees, agents, other representatives or guests are responsible and the
Seller agrees to indemnify and hold the Buyer harmless from and against any
such damages, losses, claims and other expenses. These cross indemnifications
shall survive the expiration or earlier termination of the Agreement.
8.3. Neither Party shall be held liable to the other Party for any lost profit
and other indirect losses claimed or suffered by the other Party hereto or any
third party, which are due to or result from the first Party's performance or
failure to perform hereunder.
8.4. The Buyer shall be fully responsible for the use of the Services provided
by the Seller and shall indemnify the Seller from and against any claims
arising from the improper use of the Services by the Buyer.
ARTICLE 9. FORCE MAJEURE
9.1. The Parties shall not be held liable for any delays in the performance of
or for any failure to perform their obligations hereunder if the delays or
failures were caused by circumstances or factors beyond the control of the
Parties, such as a war (including civil war); riots; sabotage; embargoes;
fires; floods or other acts of God; explosions; acts or omissions of the
government of Russia or other governments; strikes. All such circumstances
shall be regarded as Force Majeure. Immediately upon receipt of information
about occurrence of a Force Majeure event which delays or affects otherwise the
performance of this Agreement the Parties shall inform each other to this
effect in writing.
9.2. The Parties shall not be held liable for any damages, losses, claims or
other expenses which they may suffer as a result of any of such Force Majeure
events.
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9.3. If a material breaches of or default under this Agreement due to Force
Majeure lasts longer than one hundred and eighty (180) days, either Party may
terminate this Agreement by serving a thirty days' written notice of
termination on the other Party.
ARTICLE 10. ARBITRATION
10.1. If any differences arise between the Seller and the Buyer out of or in
connection with this Agreement or the performance by a Party of or its failure
to perform the obligations hereunder the Parties shall use their best efforts
to settle these differences amicably by negotiation to be held by their general
directors or authorized representatives.
10.2. If the differences cannot be resolved by negotiation, the dispute shall
be submitted to the International Commercial Arbitration Court at the Chamber
of Commerce and Industry of the Russian Federation subject to applicable laws
of the Russian Federation.
ARTICLE 11. TERMINATION OF THE AGREEMENT
11.1. Should either Party commit a material breach of its obligations or other
provisions hereof, the other Party hereto shall have the right to terminate
this Agreement if this breach or non-performance is not remedied within thirty
(30) days upon receipt of a written notice of the breach or non-performance and
if all possibilities for the settlement have been exhausted.
Upon termination of this Agreement the Seller shall cease provision of the
Services to the Buyer and the Buyer shall cease to use the Services.
11.2. If one of the Parties terminates this Agreement because the other Party
commits a material breach of its obligations, the Buyer shall pay the Seller
the sums due to the Seller for the use of the Services up to the date of
termination of the Agreement and the Seller shall accept its property, if any,
from the Buyer.
11.3. If the Buyer intends to terminate this Agreement fully or partially on
its own initiative before expiration of the term of the Agreement indicated in
Annex 1 hereto, the Buyer shall notify the Seller in writing of its intent to
partially or fully suspend or to terminate this Agreement at least twelve (12)
months prior to the planned date of suspension or termination. Upon receipt of
such notice the Parties shall agree and sign an appropriate Addendum hereto
setting forth the procedure for the return of the Seller's number capacity
which is the subject hereof from the Buyer to the Seller and for compensation
of the Seller for financial losses resulting from the partial or full
termination of the Agreement, particularly, the losses due to the non-use of
such numbers during a definite period.
ARTICLE 12. NOTICES
Except as otherwise provided herein all notices required or permitted to be
given hereunder shall be in writing addressed as follows:
FOR ZAO TCM:
00-00 xxx. 0 Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000
Attention: General Director
Telephone: (000) 000-00-00
Fax: (000) 000-00-00.
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FOR COMPANY MTU-INFORM:
27-29 str. 0 Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000
Attention: General Director
Telephone: (000) 000-00-00
Fax: (000) 000-00-00.
FOR OAO KB IMPULSE:
00 Xxxxxxxxxxxx xxx., Xxxxxx,000000
Attention: Managing Director
Telephone: (000) 000-00-00
Fax: (000) 000-00-00
Any Party shall inform the other Parties of changes in its address in the
manner set forth above.
ARTICLE 13. WAIVER, SEVERABILITY
If any provision hereof is held to be invalid or contrary to applicable laws of
the Russian Federation the remainder hereof shall remain legally valid.
ARTICLE 14. GOVERNING LAW
This Agreement shall be construed and performed by the Parties in accordance
with applicable laws of the Russian Federation.
ARTICLE 15. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
Except as otherwise provided herein neither the Seller nor the Buyer shall
assign, transfer or dispose otherwise of this Agreement or any rights and
obligations thereunder without a prior written consent of the other Party
hereto.
ARTICLE 16. TRADE NAME AND TRADEMARK REQUIREMENTS
16.1. The Buyer shall recognize all Seller's rights to all trade names, trade
marks and service marks used in connection with the Services. The Buyer's right
to use the Seller's trade name and/or trademark shall be subject to the
Seller's consent.
16.2. Upon termination of the Agreement the Buyer shall discontinue all such
uses or any representations in respect of the Services, which suggest that the
Buyer is still using the Services.
16.3. The obligations assumed by the Buyer under this Clause 16 shall survive
expiration or early termination of the Agreement.
ARTICLE 17. ENTIRETY
17.1. This Agreement, including annexes and addenda hereto, shall constitute
the entire agreement between the Seller and the Buyer in respect of the subject
matter hereof and shall supersede and replace all prior understandings, whether
written or oral, relating to the subject matter hereof, with the exception of
General Agreement No. S/41295 of December 4, 1995 insofar as it does not
contradict the provisions hereof.
All modifications hereto shall be in writing and shall be signed by all Parties
hereto.
17.2. Simultaneously with or subsequent to the signing of this Agreement the
Parties may accept and sign Addenda hereto indicating all terms and conditions
that may supplement, amend,
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change or replace the terms and conditions hereof. In such cases, the Addenda
shall be regarded as an integral part hereof and the terms and provisions of
the Addenda shall prevail.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement in the Russian language in 3 copies,
one copy for each Party.
ZAO TCM Company MTU-Inform OAO KB Impulse
(Signed) (Signed) (Signed)
General Director 1st Deputy General Director Managing Director
Round seal
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