Exhibit 10.42
NETWORK OPERATING CENTER SERVICES AGREEMENT
THIS AGREEMENT Dated For Reference the _____ day of April, 2000
BETWEEN:
360NETWORKS INC.
("360")
AND:
WORLDWIDE FIBER NETWORKS SERVICES LTD.
("Services")
AND:
WFI URBANLINK LTD.
("Urbanlink")
WHEREAS:
A. Urbanlink has agreed to provide network operating center services to
Services on the terms and subject to the conditions specified in this Agreement.
IN CONSIDERATION of the mutual agreements in this Agreement and subject to the
terms and conditions specified in this Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Agreement, including the recitals and the schedules, the following words
and expressions have the following meanings unless the context otherwise
requires:
"Affiliate" of any Person means any other Person which, directly or indirectly,
controls or is controlled by or is under common control with such Person, and
for the purposes of this definition "control" (including correlative meanings of
the terms "controlled by" and "under common control with") means the power to
direct or cause the direction of the management and policies of any Person,
whether through the ownership of shares or by contract or otherwise.
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture or
other entity or a foreign state or political subdivision thereof or any agency
of such state or subdivision.
"Services Confidential Information" has the meaning provided in Section 5.1.
"Subsidiary" has the meaning provided in the CANADA BUSINESS CORPORATIONS ACT in
effect on the date hereof.
"Urbanlink Confidential Information" has the meaning provided in Section 5.3.
"NOC Services" has the meaning provided in Section 2.1.
ARTICLE 2
SERVICES
2.1 THE SERVICES
Services hereby retains Urbanlink to provide network operating center services
including, without limitation, the monitoring, alarm and surveillance functions,
relating to all networks of Services and of 360 and its Subsidiaries in Canada
and relating to such other networks of 360 Subsidiaries as 360 may request from
time to time (the "NOC Services") by notice in writing to Urbanlink, Urbanlink
agrees to provide the NOC Services to Services. The NOC Services shall be
provided in accordance with the terms and conditions contained in this
Agreement.
2.2 STANDARDS
Urbanlink shall provide the NOC Services in accordance with telecommunications
industry standards for such services and in accordance with such policies and
procedures, and to such standards, as may be specified from time to time by
notice in writing from Services to Urbanlink. The NOC Services provided by
Urbanlink shall be coordinated with the similar functions performed by other
network operating centers operated by 360 Subsidiaries in other countries.
2.3 PROJECT DIRECTORS
Each of Urbanlink and Services will appoint a Project Director whose duties will
be to act as the liaison between Urbanlink and Services.
2.4 SERVICES' ASSISTANCE
Services will provide to Urbanlink full, good faith co-operation to assist
Urbanlink in providing the NOC Services. In particular, and without limiting the
generality of the foregoing, Services will:
(a) supply free of charge all pertinent data and information and give
such assistance as may reasonably be requested by Urbanlink to
provide the NOC Services and in particular to provide Urbanlink with
such specific and detailed information regarding Services' systems,
procedures and equipment as Urbanlink may reasonably request; and
(b) make available to Urbanlink such employees of Services as Urbanlink
may reasonably request.
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ARTICLE 3
COMPENSATION
3.1 FEES
In consideration of Urbanlink providing the NOC Services, Services will pay to
Urbanlink fees for the NOC Services in an amount equal to Urbanlink's operating
costs of providing such services, plus a margin as agreed to between Services
and Urbanlink.
3.2 INTEREST
Unless otherwise agreed between Urbanlink and Services, Urbanlink will invoice
Services for such fees and expenses monthly in arrears. All such invoices will
be payable by Services within 30 days of the date of each such invoice. If
payment is not made when due, Services will pay to Urbanlink interest on the
balance unpaid at a rate of 1.5% per month, compounded monthly (equivalent to
19.56% per annum) until paid.
3.3 TAXES
The amounts specified in this Agreement are exclusive of any federal or
provincial tariffs, duties, sales, use or goods and services taxes or duties,
all of which will be paid by Services.
ARTICLE 4
WARRANTIES AND LIMITATION OF LIABILITY
4.1 WARRANTY
Urbanlink will perform the NOC Services to the same reasonable standards of
professional skill and competence applicable to generally recognized providers
of similar services.
4.2 OTHER WARRANTIES EXCLUDED
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS.
URBANLINK MAKES NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AND THERE
ARE EXPRESSLY EXCLUDED ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR NONINFRINGEMENT
AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR
USAGE OF TRADE. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF
THE NOC SERVICES.
4.3 NO CONSEQUENTIAL DAMAGES
IN NO EVENT WHATSOEVER SHALL URBANLINK BE LIABLE FOR INDIRECT, CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, SPECIAL, INDIRECT OR OTHER SIMILAR DAMAGES INCLUDING BUT
NOT LIMITED TO LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED
SAVINGS, OTHER
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COMMERCIAL OR ECONOMIC LOSS OF ANY KIND OR ANY CLAIM AGAINST SERVICES BY ANY
PARTY ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE NOC SERVICES
EVEN IF URBANLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
LIMITATION OF LIABILITY BENEFITS EMPLOYEES
Every exemption from liability, limitation and condition contained in this
Agreement for the benefit of Urbanlink and every defence and immunity of
whatsoever nature applicable to Urbanlink or to which Urbanlink is entitled
under this Agreement will also be available and will extend to protect every
director, officer, employee, agent or independent contractor from time to time
of Urbanlink and, for the purpose of all such provisions and this section,
Urbanlink is and will be deemed to be acting as agent and trustee on behalf of
and for the benefit of all such subsidiaries, affiliates, employees, agents and
independent contractors.
ARTICLE 5
CONFIDENTIALITY
5.1 SERVICES CONFIDENTIAL INFORMATION
During the course of its relationship with Urbanlink, Services or its
subsidiaries or affiliates or their employees or agents may disclose certain
proprietary or confidential information to Urbanlink or its subsidiaries or
affiliates or their employees or agents. The proprietary or confidential
information may be oral or written, may be of a technical or commercial nature,
may take the form of plans, drawings, processes, formulae, schedules, reports,
projections, analyses, programs, prints, recordings, lists or other compilations
of information, and may relate to Services, its suppliers, employees,
stockholders or customers. All of such proprietary information and confidential
information is herein collectively called the "Services Confidential
Information".
5.2 CONFIDENTIALITY OF SERVICES CONFIDENTIAL INFORMATION
All Services Confidential Information obtained by Urbanlink will be considered
confidential and will not be disclosed by Urbanlink to any person without the
prior written consent of Services. Urbanlink will use the Services Confidential
Information only for the purposes contemplated by this Agreement. Urbanlink will
not obtain any interest in any Services Confidential Information by reason of
this Agreement or by reason of the disclosure of such Services Confidential
Information pursuant to this Agreement. Urbanlink will take the steps reasonably
necessary to protect the confidentiality of the Services Confidential
Information. Urbanlink will provide at least the same level of protection that
it provides for its own proprietary information. Any copies of the Services
Confidential Information which are made by Urbanlink will include all copyright
notices and any other propriety notices contained in such Services Confidential
Information, and will display such notices not less prominently than such
notices are displayed in such Services Confidential Information.
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5.3 URBANLINK CONFIDENTIAL INFORMATION
During the course of its relationship with Services, Urbanlink or its
subsidiaries or affiliates or their employees or agents may disclose certain
proprietary or confidential information to the Services or its subsidiaries or
affiliates or their employees or agents. The proprietary or confidential
information may be oral or written, may be of a technical or commercial nature,
may take the form of programs, design documentation, manuals, plans, drawings,
processes, formulae, schedules, reports, projections, analyses, programs,
prints, recordings, lists or other compilations of information, and may relate
to the Urbanlink, its suppliers, employees, stockholders or customers. All of
such proprietary information and confidential information is herein collectively
called the "Urbanlink Confidential Information".
5.4 CONFIDENTIALITY OF URBANLINK CONFIDENTIAL INFORMATION
All Urbanlink Confidential Information obtained by Services will be considered
confidential and will not be disclosed by Services to any person without the
prior written consent of Urbanlink. Services will use the Urbanlink Confidential
Information only for the purposes contemplated by this Agreement. Services will
not obtain any interest in any Urbanlink Confidential Information by reason of
this Agreement or by reason of the disclosure of such Urbanlink Confidential
Information pursuant to this Agreement. Services will take the steps reasonably
necessary to protect the confidentiality of the Urbanlink Confidential
Information. Services will provide at least the same level of protection that it
provides for its own propriety information. Any copies of the Urbanlink
Confidential Information which are made by Services will include all copyright
notices and any other propriety notices contained in such Urbanlink Confidential
Information, and will display such notices not less prominently than such
notices are displayed in such Urbanlink Confidential Information.
5.5 EXCEPTIONS
The foregoing restrictions do not apply to:
(a) information which at the time of disclosure was in the public domain
as evidenced by a printed publication or otherwise;
(b) information which after disclosure becomes part of the public domain
by publication or otherwise, other than by an action in breach of
this Agreement;
(c) information which was in the possession of a party at the time of
disclosure by the other party and was not acquired, directly or
indirectly, from the other party;
(d) information which the disclosing party rightfully receives from an
independent third party who did not receive such information,
directly or indirectly, from the other party with limitation or
restriction on its use;
(e) information which is independently developed by employees or agents
of a party who had not had access to the other party's confidential
information;
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(f) any information which is required to be disclosed pursuant to the
timely disclosure requirements imposed by law or by stock exchange
policies applicable to the receiving party and, in such cases, only
where the other party has been given a reasonable opportunity to
review such proposed disclosure and the other party has maintained
confidentiality to the greatest extent permissible under such laws
and policies; or
(g) such information as a party may be required to disclose by order of
a court, administrative agency or other governmental body with
jurisdiction over such party, provided that such party first
provides to the other party prompt notice of such required
disclosure and takes such steps as may be reasonable in the
circumstances to allow the other party to seek a protective order
with respect to the confidentiality of the information required to
be disclosed.
ARTICLE 6
TERM AND TERMINATION
6.1 TERM
The term of this Agreement will commence on the date hereof, and will continue
until April 30, 2005.
6.2 TERMINATION FOR DEFAULT
Without limiting the remedies otherwise available under this Agreement or at
law, either Services or Urbanlink (referred to in this section as the
"Terminating Party") may terminate this Agreement by notice in writing to the
other (the "Defaulting Party") on the occurrence of any one or more of the
following events:
(a) if the Defaulting Party is in breach of any material term of this
Agreement and such breach is not cured within 30 days of the
Defaulting Party receiving written notice from the Terminating Party
specifying the breach in reasonable detail, or within such longer
period of time as may be reasonably necessary to cure such breach
provided that the Defaulting Party is acting in good faith and with
all reasonable diligence to cure such breach;
(b) if the Defaulting Party makes an assignment for the benefit of its
creditors, is declared bankrupt, or otherwise takes advantage of
provisions for relief under the Bankruptcy and Insolvency Act, the
Companies Creditors Arrangement Act or similar legislation in any
jurisdiction, or makes an authorized assignment, or makes a proposal
under the Bankruptcy and Insolvency Act or initiates proceedings
under similar legislation in any jurisdiction;
(c) if a receiver, receiver and manager or receiver-manager of all or
any part of the assets of the Defaulting Party is appointed and such
receiver, receiver and manager or receiver-manager is not discharged
within 30 days of such appointment;
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(d) if an order is made or an effective resolution is passed for the
winding-up or liquidation of the Defaulting Party; or
(e) if the Defaulting Party ceases to carry on its business.
6.3 SURVIVAL OF TERMS
Articles 4 and 5 and such other provisions as may reasonably be expected to
remain in force will survive the expiration or termination of this Agreement and
will remain in full force and effect following such expiration or termination.
The expiration or termination of this Agreement will not affect the rights of
any party to make a claim for damages arising from a breach of any provision of
this Agreement which occurred prior to such expiration or termination.
ARTICLE 7
GENERAL
7.1 GOVERNING LAW AND ATTORNMENT
This Agreement will be governed by and construed in accordance with the
substantive laws of British Columbia and the federal laws of Canada applicable
in British Columbia, without regard to the conflict of law rules of British
Columbia. The parties irrevocably submit to and accept generally and
unconditionally the exclusive jurisdiction of the courts and appellate courts of
British Columbia with respect to any legal action or proceeding which may be
brought at any time relating in any way to this Agreement. Each of the parties
irrevocably waives any objection it may now or in the future have to the venue
of any such action or proceeding, and any claim it may now or in the future have
that any such action or proceeding has been brought in an inconvenient forum.
7.2 TIME OF THE ESSENCE OF THE AGREEMENT
Unless otherwise specifically provided in this Agreement, time will be of the
essence of this Agreement and of the transactions contemplated by this
Agreement.
7.3 REMEDIES NOT EXCLUSIVE
The remedies provided to the parties under this Agreement are cumulative and not
exclusive to each other, and any such remedy will not be deemed or construed to
affect any right which any of the parties is entitled to seek at law, in equity
or by statute.
7.4 NOTICES
Any notice, direction, request or other communication required or contemplated
by any provision of this Agreement will be given in writing and will be given by
delivering or faxing or emailing the same to the parties as follows:
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(a) To 360 at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxxxxxx XxXxxxxxx
Fax No.: (000) 000-0000
Email: xxxxxxxxx.xxxxxxxx@xxxxxxx.xxx
(b) To Services at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxxxxxx XxXxxxxxx
Fax No.: (000) 000-0000
Email: xxxxxxxxx.xxxxxxxx@xxxxxxx.xxx
(c) To Urbanlink at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxx Xxxxxx
Fax No.: (000) 000-0000
Email: xxxx.xxxxxx@xxxxxxx.xxx
Any such notice, direction, request or other communication will be deemed to
have been given or made on the date on which it was delivered or, in the case of
fax or email, on the next business day after receipt of transmission. Any party
may change its fax number or address for service or email address from time to
time by written notice in accordance with this section.
7.5 ASSIGNMENT
(a) This Agreement is not assignable by Urbanlink in whole or in part
without the prior written consent of 360, such consent not to be
unreasonably delayed. This Agreement is not assignable by 360 or
Services without the prior written consent of Urbanlink, such
consent not to be unreasonably delayed. Any attempt by any party to
assign any of the rights or to delegate any of the duties or
obligations of this Agreement without such prior written consent is
void.
(b) Notwithstanding the foregoing, the interests of any party may be
assigned by such party to an Affiliate, provided that such Affiliate
delivers to the other parties a written undertaking to be bound by
the provisions of this Agreement in all respects and to the same
extent as the assignor is bound and provided further that the
assignor will continue to be bound by all the obligations hereunder
as if such assignment had not occurred and shall perform such
obligations to the extent that such Affiliate fails to do so.
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(c) Notwithstanding the foregoing, the interests of a party under this
Agreement (including, without limitation, in the case of Urbanlink,
the right to receive any and all amounts payable to Urbanlink under
this Agreement) may be assigned by such party by way of collateral
security to a lender without the consent of the other parties,
provided however that any such lender agrees in writing that:
(i) the rights and interest of the lender are subject to the
rights and interests of the parties other than the assignor
under this Agreement;
(ii) prior to realizing on such collateral security it will provide
notice to the other parties giving them the opportunity to
cure the default; and
(iii) should such security be realized with the result that the
title or interest of the assignor, as the case may be, is
vested in an assignee, acquirer or other successor in title or
interest (including the lender if such is the case)
("Successor"), then the lender will cause such Successor to
enter into a written agreement with the other parties to be
bound by the provisions of this Agreement in all respects and
to the same extent as the assignor was bound and this from the
date the title or interest is transferred and provided further
that the assignor will continue to be bound by all the
obligations under this Agreement as if such transfer of title
or interest had not occurred and will perform such obligations
to the extent that the Successor fails to do so.
7.6 FORCE MAJEURE
The failure or delay of any party to this Agreement to perform any obligation
under this Agreement solely by reason of acts of God, acts of civil or military
authority, civil disturbance, war, strikes or other labour disputes or
disturbances, fire, transportation contingencies, shortage of facilities, fuel,
energy, labour or materials, or laws, regulations, acts or orders of any
governmental agency or official, other catastrophes, or any other circumstance
beyond its reasonable control ("Force Majeure") will be deemed not to be a
breach of this Agreement so long as the party so prevented from complying with
this Agreement has not contributed to such Force Majeure, has used reasonable
efforts to avoid such Force Majeure or to ameliorate its effects, and continues
to take all actions within its power to comply as fully as possible with the
terms of this Agreement. In the event of any such Force Majeure, performance of
the obligations will be deferred until the Force Majeure ceases. This section
will not apply to excuse a failure to make any payment when due.
7.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All of these counterparts
will for all purposes constitute one agreement, binding on the parties,
notwithstanding that all parties are not signatories to the same counterpart. A
fax transcribed copy or photocopy of this Agreement executed by a party in
counterpart or otherwise will constitute a properly executed, delivered and
binding agreement or counterpart of the executing party.
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7.8 WAIVER
No failure or delay on the part of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right. No single
or partial exercise of any right or power under this Agreement will preclude any
further or other exercise of such right or power. No modification or waiver of
any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective until the same is in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any party in any circumstances will entitle such party to any other or
further notice or demand in similar or other circumstances.
7.9 FURTHER ASSURANCES
Each of the parties will promptly execute and deliver to the other at the cost
of the other such further documents and assurances and take such further actions
as the other may from time to time request in order to more effectively carry
out the intent and purpose of this Agreement and to establish and protect the
rights, interests and remedies intended to be created in favour of the other.
7.10 ENTIRE AGREEMENT
This Agreement and any documents and agreements to be delivered pursuant to this
Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations, promises, agreements, covenants, conditions,
representations and warranties with respect to the subject matter of this
Agreement. There is no representation, warranty, collateral term or condition or
collateral agreement affecting this Agreement, other than as expressed in
writing in this Agreement. No trade terms or trade usages are to be incorporated
by reference implicitly or otherwise into this Agreement, unless expressly
referred to in this Agreement.
7.11 AMENDMENTS
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to
this Agreement.
7.12 INVALIDITY OF PARTICULAR PROVISION
If any provision of this Agreement or any part of any provision (in this section
called the "Offending Provision") is declared or becomes unenforceable, invalid
or illegal for any reason whatsoever including, without limiting the generality
of the foregoing, a decision by any competent courts, legislation, statutes,
bylaws or regulations or any other requirements having the force of law, then
the remainder of this Agreement will remain in full force and effect as if this
Agreement had been executed without the Offending Provision.
7.13 CURRENCY
Unless otherwise specified all sums of money expressed in this Agreement are in
the lawful money of Canada.
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7.14 NUMBER AND GENDER
Unless the context of this Agreement otherwise requires, to the extent necessary
so that each clause will be given the most reasonable interpretation, the
singular number will include the plural and vice versa, the verb will be
construed as agreeing with the word so substituted, words importing the
masculine gender will include the feminine and neuter genders, words importing
persons will include firms and corporations and words importing firms and
corporations will include individuals.
7.15 HEADINGS AND CAPTIONS
The headings and captions of sections and paragraphs contained in this Agreement
are all inserted for convenience of reference only and are not to be considered
when interpreting this Agreement.
7.16 ACKNOWLEDGEMENT OF RECEIPT
Each of the parties acknowledges receiving an executed copy of this Agreement.
7.17 ENUREMENT
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
[THE NEXT PAGE IS THE EXECUTION PAGE.]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date
stated on the first page.
360NETWORKS INC. WORLDWIDE FIBER NETWORKS
SERVICES LTD.
Per: Per:
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Signature Signature
WFI URBANLINK LTD.
Per:
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Signature
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