CHANNELNET LIMITED
SERVICE PROVIDER
AGREEMENT
IN CONNECTION WITH THE
PROVISION OF TELECOMMUNICATION SERVICES
TO
NORWEB TELECOM LIMITED
NETWORK PROVIDER
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THIS AGREEMENT is made 23rd November 1999
BETWEEN
(1) CHANNELNET LTD., whose registered office is at Xxxxxxxxxx Xxxxx, 00,
Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxx X0 0XX ("ChannelNET" or The Service
Provider) and
(2) NORWEB TELECOM LIMITED, whose registered office is XX Xxx 00, 000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx, XX0 0XX ("the Network Provider
or Norweb")
WHEREAS
The Network Provider wishes to provide Voice Over Internet Protocol (VOIP)
services to its callers and requires telecommunications services from ChannelNET
which ChannelNET shall provide subject to the following terms and conditions.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Agreement the following terms shall have the following meanings:
"Associated Company" means either parties' ultimate holding company or any
subsidiary thereof ("holding company" and "subsidiary" having the meanings set
out in Section 144 of the Companies Act 1989);
"Billing Period" means the period of time for the billing of Service Fees being
one calendar month.
"Call" means the successful establishment of a connection between a Caller and
ChannelNET's equipment via any public telecommunications operator's system,
enabling the conveyance of signals and messages between Callers and the
ChannelNET's equipment;
"Caller" means a customer of any public telecommunications operator who is to be
charged for calls to the Service Provider at a rate in excess of the normal rate
of tariff applied by the operator in question to the generality of national
public telephone calls.
"Code of Practice" means and includes the prevailing edition of the ICSTIS Code
of Practice for Premium Services and any amendment or substitution thereof made
from time to time, and any other Code of Practice introduced required or
approved by the Director General or other competent authority which applies to
or otherwise affects the Services;
"Director General" means the Director General of Telecommunications.
"Minimum Period" means a period of six months from the Service Commencement
Date;
"Service Commencement Date" means the 23rd Day of November 1999;
"Service Fees" means those fees payable by the Network Provider, calculated at
the rate set out in appendix 1 plus value added tax thereon.
"Service Fees Statement" means a statement of Service Fees payable to
ChannelNET, to be prepared by Norweb in accordance with Clause 3.2 hereof,
setting out details of the number and length of calls made by Callers and
Service Fees due to ChannelNET in respect of the
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Billing Period, and "Interim Statement" means a statement in the same form as
the Service Fees Statement but prepared in respect of a different period of
time;
"Services" means VOIP or other services as the Service Provider shall make
available to Callers including any information contained therein.
2. SERVICE PROVIDER'S OBLIGATIONS
2.1 Subject to the other terms and conditions hereof the Service Provider
shall make available the Services to Callers as from the Service
Commencement Date.
2.2.1 a quality and content and are advertised, promoted, operated and presented
in a manner so as not to bring or be likely to bring the Network operators
name, or that of its Associated Company into disrepute and contain nothing
which is likely in the light of generally prevailing standards of decency
and propriety to cause offense to Callers or members of the public
generally.
2.3 The Service Provider shall be responsible at its sole expense for all
advertising and promotion of the Services. In all such advertising and
publicity material the Service Provider shall also:-
(a) state in a reasonably legible form the charges (including VAT) which
Callers must make to the public telecommunication operators in order
to access and use the Services including, if applicable, the different
charging rates which may apply for calls made at different periods
during the day, as published from time to time by public
telecommunications operators pursuant to their obligations contained
respectively in their licences;
(b) comply with any requirements Norweb may from time to time have in
relation to presentation of the Service Provider's telephone numbers
and geographical coverage;
(c) not state nor imply any approval or preference by Norweb of the
Service Provider, the Services or any part thereof.
2.4 The Service Provider shall not operate the Services (including but not
limited to use of any special number for access to the Services) in a way
which, nor include in the Services or any part thereof any information or
material which:
(a) is defamatory, offensive or abusive or of an obscene or menacing
character; or
(b) constitutes a violation or infringement of the rights of any person,
firm or company (including, but not limited to rights of
confidentiality or copyright); or
(c) would make the Services unlawful or involve or facilitate the
commission of a criminal offense or other wrong actionable in the UK;
and the Service Provider shall indemnify and hold harmless Norweb against all
liability, costs, losses and expenses arising out of or in any way connected
with any failure by the Service Provider so to do.
2.5 Without prejudice to the generality of the foregoing, in the event that
ICSTIS and/or the Director General and/or other relevant authority form
the view or determine, that the Service Provider is in actual or potential
breach of the Code of Practice or any applicable law, the
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Service Provider shall comply with any instructions or recommendations
issued by ICSTIS and/or the Director General and/or other relevant
authority. The Service Provider shall also contribute to the necessary
compensation funds as operated by ICSTIS and/or the Director General
and/or or other relevant authority.
2.6 The Service Provider shall at all times comply with obligations and
regulations imposed by law in the UK as they may affect the Services and
shall also upon the request of Norweb at any time provide such information
and take such steps as may be necessary in order to enable Norweb to
comply with all regulations conditions and obligations from time to time
imposed by law upon Norweb in relation to the Services
2.7 The Service Provider shall in connection with the equipment it operates in
order to provide the Services ensure that it complies at all times with
the relevant provisions of the Telecommunications Xxx 0000, and any
license granted thereunder which governs the running of a
telecommunications system by the Service Provider and shall as necessary
comply at all times with the relevant provisions of the Consumer Credit
Xxx 0000, the Financial Services Xxx 0000, the Data Protection Xxx 0000,
as amended or replaced and any other applicable legislation.
2.8 The Service Provider shall take such steps as are reasonably necessary to
ensure access to the Services and in particular to ensure that sufficient
lines, ports and other apparatus are available to meet all reasonably
expected demand thereof, taking account of the fact that access to the
Services may be achievable through the systems of other public
telecommunication operators. Furthermore Norweb shall have the right in
its discretion to suspend, bar or restrict access to the Services if at
any time the number of calls or attempted calls to the Service Provider
causes or is liable to cause congestion or other disruption within any
part of the Norweb System.
2.9 In any case where the Service Provider is at his request allocated a
special telephone number applicable to the Services the Service Provider
shall be responsible for all necessary investigations and inquiries as to
the legitimacy of use of such number and Norweb shall have no liability
whatsoever with respect to the number chosen and its use by the Service
Provider.
2.10 For the purpose of Clause 2.2 and 2.6 Norweb opinion shall be final and
binding as to what brings or is likely to bring Norweb's name into
disrepute. As to what is likely to cause offence to Callers and what is
defamatory, abusive, obscene or menacing the opinion of ICSTIS shall be
final and binding. In relation to any Code of Practice, and without
prejudice to Norweb's own discretion and opinion, the opinion of ICSTIS or
other relevant body responsible for its administration as to whether or
not there has been a breach thereof shall be deemed to be final and
binding.
3. SERVICE FEES AND PAYMENT OBLIGATIONS
3.1 The Network Provider shall (subject as provided in this Clause) pay to
ChannelNET the Service Fees as set out in appendix 1 per minute plus vat
thereon.
3.2 The Service Fees shall be calculated by Norweb who shall prepare a Service
Fees Statement which shall be delivered to the Service Provider following
the end of the Billing Period to which the Services Fees Statement
relates. The Network Provider shall ensure that payment of Service Fees to
ChannelNET is effected within thirty days of the delivery of the Service
Fees Statement. Provided that Norweb may withhold payment if any part of
the service is alleged to be fraudulent, illegal or contrary to the Code
of Practice. If subsequent to a payment being made, an upstream public
telecommunications operator withholds payments to Norweb relating
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to calls because of alleged fraud, illegality or breach of the Code of
Practice (other than by Norweb) then Norweb shall be entitled to give
notice to the Service Provider and withhold an equivalent amount from any
further service fees due to the Service Provider until payment is received
by Norweb from the upstream public telecommunications operator.
3.3 Unless otherwise specifically agreed in writing by the parties, all
Service Fees payable shall be calculated by reference to data recorded or
logged by Norweb and not be reference to any data recorded or logged by
the Service Provider.
4. DURATION, SUSPENSION AND TERMINATION
4.1 This Agreement shall come into force on the date hereof and shall continue
subject to the terms hereof unless terminated by either party giving to
the other not less than three month's prior written notice to expire at
the end of the Minimum Period or at the end of any month thereafter.
4.2 Notwithstanding anything to the contrary express or implied elsewhere in
the Agreement Norweb (without prejudice to its other rights) may terminate
this Agreement forthwith in the event that:
(a) a voluntary arrangement is proposed or approved or an administration
order is made, or a receiver or administrative receiver is appointed
of any of the Service Provider's assets or undertaking or a
winding-up resolution or petition is passed or preserved (other than
for the purpose of amalgamation or reconstruction) or if any
circumstances arise which entitle the Court or a creditor to appoint a
receiver, administrative receiver or administrator or to present a
winding-up petition or make a winding up order;
(b) the Service Provider shall default in due performance or observance of
its obligations under Clause 2.2; or
(c) the Service Provider shall default in due performance or observance of
any other material obligation under this Agreement or any other
agreement with Norweb or an Associated Company and (in the case of a
remediable breach) fails to remedy such default within a reasonable
time (not less than 30 days) specified by Norweb in its written notice
so to do; or
(d) Norweb is directed by the Director General or other competent
authority, to cease to facilitate or allow the provision of the
Services; or
(e) Norweb has reason to suspect fraud or deception has occurred or is
likely to occur in future in connection with the Services.
4.3 Without prejudice to its rights of termination at any time under Clause
4.2 Norweb shall have the right by notice in writing to the Service
Provider to require immediate suspension of the Services and to suspend
operation of this Agreement and performance and observance of its
obligations to the Service Provider hereunder in the event of either --
(a) the issue of a formal recommendation to that effect ICSTIS (or any
other person or body responsible for administration of a relevant Code
of Practice) or
(b) occurrence of any of the matters specified in Clause 4.2 until Norweb
shall give further notice of cessation of such suspension or give
notice of termination under Clause 4.2. During the period of such
suspension Norweb shall also have the right to suspend its services
under this Agreement and/or allocate a
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telephone number or numbers to the Service Provider which is different
from that previously used for calls by Callers to the Service
Provider.
(c) Norweb is required to do so to avoid a breach of its licence
5. CONFIDENTIALITY
Each party hereto undertakes to the other that it shall keep, and shall procure
that its directors and employees shall keep secret and confidential and shall
not use or disclose to any other person any information or material of a
technical or business nature relating in any manner to the business, products or
services of the other party which the first party may receive or obtain in
connection with or incidential to performance of this Agreement.
PROVIDED THAT THE FIRST PARTY SHALL NOT BE PREVENTED FROM
(a) using any general knowledge, experience and skills not treated by the
other party as confidential or which do not properly belong to the other
party and which the first party may have acquired or developed at any time
during this Agreement;
(b) using the information or material referred to above to the extent such
information or material comes into the public domain otherwise than
through the default or negligence of the first party; and
(c) disclosing the information to any court or regulatory agency (including
the Director General) or as required by the rules or procedures of a
relevant recognised stock or investment exchange
6. FORCE MAJEURE
Neither party shall be held in breach of its obligations hereunder nor liable to
the other for any loss or damage which may be suffered by the other party due to
any cause beyond its reasonable control including without limitation any act of
God, failure, interruption or shortage of power supplies, flood, drought,
lightning or fire, strike, lock-out, trade dispute or labour disturbance, act or
omission of Government, highways authorities, other telecommunications operator
or other competent authority, war, military operations or riot.
7. GENERAL
7.1 Assignment etc.
7.1.1 Each party shall have the right to assign, sub-contract or otherwise
delegate all or any of its rights and obligations hereunder to any
Associated Company upon notification to the Network Provider.
7.1.2 Subject to clause 7.1.1, the Network Provider shall not assign,
sub-contract or otherwise deal with or permit any other person to exercise
or enjoy all or any of its rights and obligations under this Agreement
without the prior written consent of ChannelNet, such consent not to be
unreasonably witheld or delayed.
7.2 Notices
(a) Any notice, invoice or other document which may be given by Norweb under
this Agreement shall be desired to have been duly given if left at or sent
by registered post (whether by letter or, where the parties agree, by
magnetic tape or any other form), telex or facsimile transmission
(confirmed by letter sent by registered post) or,
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where the parties expressly agree, by electronic mail, to the Service
Provider's registered office or any other address notified to Norweb in
writing by the Service Provider as an address to which notices, invoices
and other documents may be sent.
(b) ChannelNET's address for the service of any notice by the Network Provider
under this Agreement shall be such address as is shown on the last invoice
rendered to the Service Provider or such address as ChennelNET shall
notify the Network Provider in writing for that purpose.
(c) Any such communication shall be deemed to have been made to the other
party on the day on which such communication ought to have been received
in due course of registered post, telex or facsimile transmission. Any
communication by electronic mail shall be deemed to have been made on the
day on which the communication is first stored in the other party's
electronic mail-box.
7.3 No Waiver
Failure by either party to exercise or enforce any rights conferred by
this Agreement shall not be deemed to be a waive of any such right nor
operate so as to bar the exercise or enforcement thereof or of any other
right on any occasion.
7.4 Entire Agreement
(a) This Agreement represents the entire understanding between the parties in
relation to the subject-matter hereof and supersedes all other agreements
and representations made by either party, whether oral or written and,
subject as provided in Clause 7.5, this Agreement may only be modified if
such modification is in writing and signed by a duly authorised
representative of each party hereto.
(b) This Agreement shall prevail over any inconsistent terms or conditions
referred to in the Service Provider's application or in correspondence or
elsewhere and any conditions or stipulations to the contrary are hereby
excluded and extinguished.
7.5 Regulatory
Norweb shall have the right by notice in writing to the Service Provider
to modify this Agreement at any time so as to comply with any regulations,
determinations or other requirements applicable to or imposed upon by any
competent authority.
7.6(a). Notwithstanding anything to the contrary in this Agreement, Norweb
shall not, except in respect of death or personal injury caused by the
negligence of Norweb, be liable to the Service Provider by reason of any
non-fraudulent representation or implied warranty, condition or other term
or any duty at common law, or under the express terms of this Agreement,
for anything indirect or consequential loss or damage (including without
limitation loss of profits, loss of income, loss of business, loss of
revenue, loss of goodwill, loss of anticipated savings, loss of data or
losses calculated by reference to profits, income, business, revenue,
goodwill, anticipated savings or data) and whether occasioned by the tort
(including negligence) or breach of statutory duty of Norweb or its
employees or agents or otherwise) arising out of or in connection with any
act or omission of
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by reference to profits, income, business, revenue, goodwill, anticipated
savings or data) and whether occasioned by the tort (including negligence)
or breach of statutory duty of Norweb or its employees or agents or
otherwise) arising out of or in connection with any act or omission of
Norweb relating to Norweb's obligations arising under this Agreement.
(b) Norweb shall not be liable to the Service Provider (whether in contract,
for breach of warranty, tort including negligence, breach of statutory
duty, non fraudulent misrepresentation, under any indemnity or otherwise
howsoever) for any loss, damages, costs, expenses, claims or liabilities
for which the Service provider may be liable to any third party as a
result of any failure by Norweb, its subcontractors or agents to perform
any of Norweb's obligations arising under this Agreement or in accordance
with this Agreement.
(c) Unless expressly stated in this Agreement, all warranties, conditions and
other terms (whether implied by statute, common law, or arising from a
previous course of conduct or trade custom or usage or otherwise
howsoever) are excluded from this Agreement.
7.7 Governing Law
This Agreement shall be governed by and construed and interpreted in
accordance with English law, and the parties hereby submit to the
jurisdiction of the English courts.
IN WITNESS whereof the duly authorised representatives of the parties have
hereunto set their hands the day and year first above written.
SIGNED for and on behalf )
of CHANNELNET LIMITED )
)/s/ illegible
-------------------------------
SIGNED for and on behalf )
NORWEB LIMITED )
)/s/ illegible
-------------------------------
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