EXHIBIT 10.33
DATED 10 February 1998
(1) THE BRITISH BROADCASTING CORPORATION
and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD
DIGITAL TERRESTRIAL TELEVISION
TRANSMISSION AGREEMENT
LINKLATERS & PAINES
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0X
Tel: 0000-000 0000
Ref: RMBD/MSHC
THIS AGREEMENT is made on 10 February 1998 BETWEEN:
(1) THE BRITISH BROADCASTING CORPORATION, a corporation incorporated under
Royal Charter, whose principal office is at Xxxxxxxxxxxx Xxxxx, Xxxxxxxx
Xxxxx, Xxxxxx X0X 0XX ("THE BBC"); and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD (registered number 3196207), a
company incorporated under the laws of England and Wales whose principal
place of business is Warwick Technology Park, Gallows Hill, Xxxxxxxxx
Xxxx, Xxxxxxx XX00 0XX ("CTI").
RECITALS
(A) The BBC is incorporated under the Charter and required under the Charter
and DNH Agreement to provide radio and television broadcasts.
(B) Clause 2.4 of the DNH Agreement allows for the BBC to provide multiplex
facilities for digital terrestrial television.
(C) The BBC wishes to launch its digital terrestrial television services
concurrently with the launch of digital terrestrial television services by
other multiplex operators.
(D) The BBC has decided that it wishes to obtain from CTI the Services,
including:
(i) The DTT Transmission Services using:
(a) terrestrial transmitters operated by CTI which radiate DVB-T
Specification compliant signals;
(b) links provided by or to CTI to enable distribution of the BBC
multiplexed signal to terrestrial transmitter sites from nominated
BBC broadcast centers;
(c) multiplexers provided by CTI, to enable configuration of the BBC
Multiplex at certain transmitter sites;
(ii) modifications to the transmission characteristics of existing analogue
transmitters to permit the introduction of the BBC Multiplex and the
simultaneous transmission of analogue services;
(iii) representation of the BBC on industry bodies; and
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(iv) liaison with the analogue returning contractor.
(F) CTI has agreed to provide the Services on the terms and conditions set out
in this Agreement.
The parties agree to comply with the following terms and conditions.
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PART A - DEFINITIONS AND INTERPRETATION
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"ACCEPTANCE TESTS" means the tests carried out to test the installation and
implementation of a Station (which may include type approval tests) in
accordance with Clause 2.7 and Schedule 6.
"ACCEPTED" shall mean acceptance by the BBC or deemed acceptance by the BBC
of a Station in accordance with the Acceptance Test procedure.
"ACCOUNTABLE INCIDENT" means a fault, failure or incident of the kind
defined in Schedule 8, paragraph 3.1.4.2.
"ACTUAL IN-SERVICE DATE" means the date, regardless of the Roll-out Plan,
when a Station commences service other than for testing.
"AFFILIATE" means any undertaking in respect of which a participating
interest is held by the BBC, or a subsidiary undertaking of the BBC, or its
parent undertaking or any subsidiary undertaking of its parent undertaking
(as such terms are defined in sections 258 to 260 and Schedule 9 of the
Companies Xxx 0000, as amended by the Companies Act 1989).
"AVERAGE EARNINGS INDEX" means the average earnings index for the whole
United Kingdom economy as published from time to time by the Office of
National Statistics or, if such index shall cease to be published or if
there is a material change in the basis of the index, such other average
earnings index as is an equivalent replacement, or if there is not a
replacement, as the BBC may, after consultation with CTI, reasonably
determine to be appropriate in the circumstances.
"1996 ACT" means the Broadcasting Xxx 0000.
"BBC ASSIGNEE" means any wholly-owned subsidiary of the BBC to whom the BBC
has assigned this Agreement pursuant to Clause 17.2.
"BBC MULTIPLEX" means the multiplex for digital terrestrial television
allocated to the BBC by the Secretary of State.
"BBC OPERATIONAL POINT OF CONTACT" means a person or persons nominated to
CTI by the BBC from time to time as the operational point(s) of contact for
purposes of this Agreement.
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"BBC REPRESENTATIVE" means a person or persons nominated in writing to CTI
by the BBC from time to time to be its contractual point of contact. The
initial BBC Representative will be Xxxx Xxxxx.
"BBC R & D" means the BBC's Research and Development Department.
"BBC SITES" means all sites owned by, leased or licensed to the BBC.
"BROADCASTING ACT" means the Broadcasting Xxx 0000.
"BUILD DATE" means, in relation to a Station:
(i) for Phase 1 Stations the date by which the Station is able to
radiate DTT signals compliant with the relevant technical
specification approved by the BBC as set out in Schedule 12,
Appendix 3; and
(ii) for Phase 2 Stations and Phase 3 Stations the date by which:
(a) all digital equipment at that Station has been installed by
CTI, tested and Accepted;
(b) all the analogue consequential changes at that Station are
complete and accepted by the BBC;
(c) all analogue consequential changes required for that
Station, which are not directly linked to the analogue
returning contract, are completed;
(d) a detailed project plan for those analogue changes directly
linked to the analogue returning contract has been agreed
with the returning contractor and the BBC.
"CA" means conditional access.
"CHANGE CONTROL PROCEDURE" means the procedure set out in Schedule 3.
"CHARGES" means charges calculated in accordance with Schedule 2.
"CHARTER" means the Charter granted to the BBC by Her Majesty the Queen in
Council on 13 March 1996 which came into force on 1 May 1996, as amended or
replaced from time to time.
"CTI ASSIGNEE" means any person, firm or company to whom CTI has assigned
this Agreement pursuant to Clause 17.2.
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"CTI REPRESENTATIVE" means a person or persons nominated in writing to the
BBC by CTI from time to time to be its contractual point of contact.
"CTI SITE" means all sites owned by, leased or licensed to CTI, other than
sites licensed to CTI by the BBC under a Site Sharing Agreement as defined
in this or the Analogue Contract.
"CTI SUB-CONTRACTOR" has the meaning given in Clause 13.5.1.
"DATA" means, subject to the limit on total capacity described in Clause
4.2.4, any data, free-to-air or subscription programming or other material
which the BBC wishes to broadcast or transmit using the BBC Multiplex from
time to time, which may include without limitation:
(a) digitally coded audio and video programme services;
(b) services such as Teletext, Audetel, subtitling and any other similar
services provided by the BBC from time to time;
(c) information relating to or intended for viewer set-top boxes;
(d) subtitling;
(e) private data signals (including EPG and CA);
(f) SI; and
(g) any television channels that the BBC wishes to provide for digital
television transmission from time to time.
"DESIGN AND OPTIMIZATION CONSULTING SERVICES" means technical advice and
consultation, provided prior to the Phase I Launch Date, in order to
optimize the coverage and capability of the Transmission Network, including
Sl interface design and the enhancement of antenna patterns.
"D-MUX GROUP" means the industry group of licensees of digital television
multiplexes under the 1996 Act and includes the BBC.
"DISTRIBUTION LINKS" means the telecommunications services procured or
provided by CTI to convey the Data from the Interfaces to the Stations, as
described in Schedule 5.
"DNH AGREEMENT" means the agreement between the Secretary of State of the
then Department of National Heritage and the BBC dated 25 January 1996
which came into force on 1 May 1996, as such agreement may from time to
time be amended or replaced.
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"DTT" means digital terrestrial television.
"DTT TRANSMISSION SERVICE" means digital terrestrial television
transmission of the Data from the Stations using the BBC Multiplex in
accordance with the Transmission Requirements by means of the Transmission
Network.
"DVB-T SPECIFICATION" means ETS1 standard ETS 300744.
"EFFECTIVE DATE" means the date on which the Department of Culture, Media
and Sport gives formal approval for the BBC to provide DTT.
"EMERGENCY ANNOUNCEMENTS" means the provision by the BBC as required by
Clause 8.1 of the DNH Agreement of announcements or other matter from all
or any of the Stations.
"EMERGENCY POWERS" means powers exercisable by a Minister of the Crown
pursuant to any legislation enacted or made to deal with a public
emergency, including the Emergency Powers Xxx 0000 and any regulations made
under it.
"EMERGENCY SERVICES" means the services described in Clause 3.2.
"EMPLOYEES" means the employees of CTI (or any sub-contractor of CTI) from
time to time principally employed for the purposes of performing CTI's
obligations under this Agreement or the employees of any CTI Assignee from
time to time principally employed for the purposes of performing CTI's
obligations under this Agreement.
"ENGINEER RESPONSE TIME" has the meaning set out in Schedule 8.
"EPG" means electronic programme guide.
"FORCE MAJEURE EVENT" means any events or circumstances beyond the
reasonable control of the defaulting party which cause the relevant default
which shall include, but not be limited to, Act of God, war, civil
disturbance, statutory prohibition, Government intervention, order or act
of Government or local/public authority, supranational regulatory or
governmental agencies, acts or threats of terrorism, fire, lightning,
flood, any adverse weather conditions which cause physical damage to
property used to supply the Services or prevent access or safe working on
any such property, anomalous propagation or other adverse weather
conditions which affect transmission of the signal after it leaves the
transmitter at a Station and before it is received at a viewer's receiver
(but not anomalous propagation or other adverse weather conditions which
affect transmission of the signal from the Interface up to and including
the point at which the signal is
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radiated from the transmitter except where weather conditions prevent or
impede access to or safe working on any property), explosion, accident,
theft or vandalism, national strike action or industrial action taken by a
union or the BBC provided that neither party can rely on strikes,
industrial action, theft or acts of vandalism where it could reasonably
have been expected to have prevented them or the industrial action or
strike is by its own employees only.
"GRADED BROADCAST" means:
(a) broadcasts of announcements made by a member of the royal family;
and
(b) major outside broadcasts,
as notified to CTI by the BBC in accordance with Clause 10.4.1, and
any urgent broadcasts of a similar nature as notified to CTI by the
BBC from time to time in accordance with Clause 10-4.
"HARMFUL INTERFERENCE" shall have the same meaning as in the Radio
Regulations.
"HIGH LEVEL DESIGN" means a high level block diagram in the form set
out in Schedule 12, identifying all Interfaces and Interface
protocols.
"INTERFACE" means the network interconnection points between the BBC's
facilities and the Transmission Network as more fully described in the
Interface Specification.
"INTERFACE SPECIFICATION" means the specification set out in Schedule
7.
"ITC" means the Independent Television Commission.
"JOINT FREQUENCY PLANNING BOARD" means the board of that name formed
under the auspices of the Radiocommunications Agency.
"LIQUIDATED DAMAGES" means amounts payable under Clause 16.6 and
calculated in the manner set out in Schedule 2.
"LOSSES" means all losses, liabilities, costs (including, without
limitation, legal costs), expenses and damages.
"MAIN STATIONS" means Stations which are not Relay Stations.
"MILLENNIUM COMPLIANT" means neither the performance nor the
functionality of the Services will be affected by any changes to the
date format caused by the advent of the year 2000 or any dates
thereafter. In particular:
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(a) no value for current date will cause any interruption of the
Services;
(b) all manipulation of time related data will produce the desired
results for valid date values within the application domain;
(c) date elements in Interfaces and data storage will permit
specifying the century to eliminate date ambiguity; and
(d) where any data element is represented without a century, the
correct century shall be unambiguous for all manipulations
involving that element.
"OPERATOR" means the BBC and/or any Successor Operator.
"OPERATIONAL" means, in relation to a Station, that the relevant
Station is ready for Operational use; i.e.:
(i) the Build Date has been achieved;
(ii) end-to-end system integration testing is complete;
(iii) all analogue consequential changes required for that
Station are complete.
"OPERATIONAL NON-PRIORITY STATIONS" means those Stations which are
described as not being Operational Priority Stations in Schedule 1 as
amended from time to time in accordance with the Change Control
Procedure.
"OPERATIONAL PRIORITY STATIONS" means those Stations described as
Operational Priority Stations in Schedule 1 as amended from time to
time in accordance with the Change Control Procedure.
"PERFORMANCE MEASURES" means the numerical indications of CTI's
overall performance, calculated as set out in Schedule 8.
"PERFORMANCE STANDARDS" means the performance parameters to be applied
by CTI as set out in Schedule 8.
"PHASE 1" means the dates during which roll-out of the Stations
identified in Schedule 1 (or otherwise agreed between the parties
pursuant to this Agreement) as first phase Stations takes place.
"PHASE 1 LAUNCH DATE" means the date by which Phase 1 Stations are
Operational, being 1 November 1998 (or such other later date as is
specified by the D-Mux Group).
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"PHASE 2" means the period during which roll-out of the Stations identified
in Schedule I (or otherwise agreed between the parties pursuant to this
Agreement) as second phase Stations takes place.
"PHASE 2 SERVICE DATE" means, in relation to a Phase 2 Station, the date by
which that Station is Operational, as specified in Schedule 1 hereto (or as
otherwise agreed between the parties).
"PHASE 3" means the period during which roll-out of the Stations identified
in Schedule 1 (or otherwise agreed between the parties pursuant to this
Agreement) as third phase Stations takes place.
"PHASE 3 SERVICE DATE" means, in relation to a Phase 3 Station, the date by
which that Station is Operational, as specified in Schedule 1 hereto (or as
otherwise agreed between the parties).
"PLANNED INTERRUPTIONS" means any interruptions of the kind described in
Clauses 10-2.1 and 10.2.2.
"PLANNED WORK MESSAGE" means a message where there is a Planned
Interruption to the DTT Transmission Service.
"PROJECT MANAGER" has the meaning set out in Clause 5.3.2.
"RADIO REGULATIONS" means the Radio Regulations of the International
Telecommunication Union or any replacement for such regulations and
includes all related regional agreements.
"RELAY STATIONS" means stations defined as such in Table 1 of Schedule 1.
"RELEVANT EMPLOYEES" means all Employees employed immediately before the
Transfer Date (whether employed by CTI or otherwise) whose contract of
employment has been or is to be transferred to the BBC or, as the case may
be, a Successor Operator by virtue of the operation of law (including the
Transfer Regulations) or any other person so employed in respect of whom
liabilities arising from a contract of employment or employment
relationship have or will be transferred by virtue of the operation of law
(including the Transfer Regulations).
"RELEVANT EMPLOYER" means an employer of any of the Employees or the
Relevant Employees.
"ROLL-OUT PLAN" means the industry-agreed plan for the roll-out of the
second and third phases of DTT, as notified to CTI and amended by the D-Mux
Group from time to time.
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"ROUTINE MAINTENANCE" means work or repairs that are planned by CTI to
minimize faults on CTI equipment and/or the Transmission Network and to
ensure that such equipment and the Transmission Network operates safely,
complies with all applicable statutory requirements and meets the
Transmission Requirements and Target Performance Measures.
"RPI" means the retail price index (all items) published monthly in the
Digest of Statistics by the Central Statistical Office or, if such index
shall cease to be published, such other index of retail prices published in
substitution for it.
"THE SECRETARY OF STATE" means one of Her Majesty's Principal Secretaries
of State.
"SERVICES" means all services provided by CTI under this Agreement.
"SERVICE CREDITS" means credits against Charges in respect of CTI failing
to meet the relevant Target Performance Measures calculated in accordance
with Clause 11.3 and Schedule 8.
"SERVICE MANAGEMENT BOARD" means the committee described in Clause 5.4.
"SERVICE MESSAGE" means a message of the kind described in Schedule 8.
"SERVICES MANAGER" has the meaning set out in Clause 5.3.2.
"SI" means service information.
"SLA" means the service level agreement or agreements described in Clause
5.1 .1.
"SITE SHARING AGREEMENT" means an agreement substantially in the form of
Schedule 10 or in such other form as is acceptable to the BBC.
"STATIONS" means the transmitter sites listed in Schedule 1 as amended from
time to time and any substitute or additional transmitter sites that the
parties may agree from time to time, in accordance with the Change Control
Procedure.
"SUCCESSOR OPERATOR" means the contractor first succeeding CTI in the
provision or operation of all or any of the Services.
"TARGET PERFORMANCE MEASURE" means the Performance Measure which is
required for the DTF Transmission Service as described in Schedule 8.
"TECHNICAL OPERATIONS CENTRE" ("TOC") means CTI's principal operations
centre located at Warwick Technology Park, Gallows Hill, Xxxxxxxxx Xxxx,
Xxxxxxx XX00 0XX.
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"TELECOMS ACT" means, in relation to the UK, the Telecommunications Xxx
0000 or such equivalent statutes as are from time to time in force in the
Channel Islands or the Isle of Man.
"TELETEXT" means any data service of the type which is currently
transmitted using lines in the vertical blanking interval of the vision
element of analogue television signals directed to the general public.
"TERM" means the period of 12 years from the Phase 1 Launch Date.
"TEST DATE" means, in relation to a Station, the date by which the relevant
test transmitter or transmitter, as the case may be, is installed and ready
for testing on such other date as may reasonably be agreed between the BBC
and CTI in accordance with the requirements of the D-mux Group.
"TPGD" means the Television Planning Group Digital of the ITC.
"TRANSFER DATE" means close of business on the date when this Agreement
terminates.
"TRANSFER REGULATIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981.
"TRANSMISSION FAULTS" means breaks, discontinuances or other impairments of
the transmission of the Data.
"TRANSMISSION NETWORK" means all or such parts of the transmission system
which are used to provide the DTT Transmission Service, including
transmitters and related equipment at such of the Stations as have been
Accepted, and any Distribution Links that are used to provide the DTT
Transmission Service.
"TRANSMISSION REQUIREMENTS" means the BBC's requirements for transmission
of DTT by CTI as specified in Schedule 5, to be carried out by CTI in
accordance with the provisions of Schedule 12.
"VAT" means value added tax as currently charged under the Value Added Tax
Xxx 0000 and any successor or replacement thereof and any similar tax
chargeable under the laws of the United Kingdom or any other jurisdiction.
"WTA" means the Wireless Telegraphy Acts 1949-1967 or such equivalent
statutes as are from time to time in force in any of the United Kingdom,
the Channel Islands or the Isle of Man.
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"YEAR" means the period from the date of execution of this Agreement to the
first anniversary of that date (which constitutes the first Year), and each
subsequent complete period of twelve months.
1.2 The expressions "THE BBC" and "CTI" include their respective permitted
assigns, employees and agents.
1.3 Other than in Clause 12.7 or otherwise expressly stated in this Agreement,
any reference to any Act of Parliament will be deemed to include any
replacement or re-enactment for the time being in force and to include any
by-laws, statutory instruments, licences, rules, regulations, orders,
notices, directions, consents or permissions made under such Act and any
condition attaching thereto. Any reference to a reference document shall be
to one of the reference documents listed in Schedule 13, in its version at
the date hereof or as otherwise reasonably agreed between the parties.
1.4 The headings in this Agreement are for ease of reference only and will not
be taken into account in the construction or interpretation of any
provision to which they refer.
1.5 The invalidity or unenforceability of any individual provision(s) of this
Agreement shall not affect any other provision herein or render this
Agreement invalid or unenforceable.
1.6 This Agreement is made between principals and it shall not be deemed to
create any partnership between the parties and neither shall hold itself
out as agent or partner of the other except as specifically contemplated
under this Agreement.
1.7 In the event of any inconsistency between the general provisions of this
Agreement and any of the provisions contained in any of the Schedules or
attachments to this Agreement or to documents or agreements referred to in
this Agreement the provisions of this Agreement shall take precedence to
the extent of the inconsistencies.
1.8 Failure by either party to exercise any right conferred by this Agreement
will not be deemed to be a waiver of any such right nor operate so as to
bar the exercise or enforcement thereof or of any right on any other
occasion.
1.9 Except to the extent that the context otherwise requires, words and
expressions defined in Article 1 of the Radio Regulations shall have the
same meanings in this Agreement,
1.10 This Agreement shall come into force on the Effective Date.
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PART B - DESIGN AND XXXXXXXXXXXXXX XXXXX
0 DESIGN AND ROLL-OUT
2.1 Subject to the provisions of this Agreement, it is the responsibility of
CTI as from the Effective Date to provide the Design and Optimization
Consulting Services and to ensure that the Transmission Network is
supplied, operated, installed and maintained in a manner which allows
supply of the DTT Transmission Services in accordance with the terms of
this Agreement. CTI acknowledges that the BBC has no obligation to make any
contribution to the capital cost of the Transmission Network or to the
costs of maintaining or operating the Transmission Network.. This Clause
2.1 does not affect the obligations of the BBC to make any payments
expressly provided for in, or envisaged by, this Agreement.
2.2 TEST TRANSMITTERS
2.2.1 CTI shall install the test transmitters at the Stations specified
in Schedule 1 by the Test Dates.
2.2.2 CTI has submitted to the BBC a High Level Design for each of the
test transmitters. As these transmitters will be test
transmitters, the BBC acknowledges that the designs may not be
complete. Subject to Clause 2.2.3, each High Level Design must
comply with the Transmission Requirements.
2.2.3 It is acknowledged by the BBC and CTI that the High Level Design
is based on information, data and documentation produced and/or
approved by the Joint Frequency Planning Board. Accordingly, if,
notwithstanding CTI's compliance with the High Level Design, CTI
does not comply with the Transmission Requirements through no
fault of CTI's, CTI shall not be in breach of this Agreement in
consequence thereof and any material costs of overcoming a
failure of the High Level Design to comply with the Transmission
Requirements shall be for the account of the BBC.
2.2.4 The test transmitters must be installed so that they comply with
the radio frequency parameters set out in Schedule 1, Schedule 5,
the technical parameters in Schedule 8 and the provisions of
Schedule 12. Distribution Links and multiplex facilities will not
be required, except as may be agreed between the BBC and CTI. The
BBC and CTI will negotiate in good faith to agree what other
requirements the test transmitters will be required to meet.
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2.2.5 CTI must provide the BBC with such access to the test
transmitters as may be reasonably required as soon as they are
available, and in any event by the Test Dates, for the purpose of
inspecting the transmitters and conducting or participating in
the conduct of test broadcasts. CTI must perform such test
broadcasts and such other tests using the test transmitters as
the BBC reasonably requires. The BBC will provide such material
for test broadcasts by CTI as it considers reasonably
appropriate. Further detail of the tests to be conducted will be
reasonably agreed in good faith between the parties.
2.3 FIRST PHASE ROLL-OUT
2.3.1 CTI must provide the BBC with such access to each of the Phase 1
Stations and all such information as is reasonably required (and
which CTI is not prevented by statute, regulation or obligation
of confidentiality from supplying) in order for the BBC to
satisfy itself that CTI has complied with its obligations under
Clause 2.1.
2.3.2 The Phase 1 Launch Date shall be 1 November 1998, being the same
as the industry launch date for DTT in the UK (the "Phase 1
Launch Date"). [*]
2.3.3 [*]
2.3.4 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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2.4 SUBSEQUENT ROLL-OUT
2.4.1 [*]
2.4.2 For the avoidance of doubt, the BBC will not be obliged to pay
any additional amounts and in appropriate circumstances may
receive a reduction in the Charges (to be agreed pursuant to
Change Control) as a result of any changes to the Roll-out Plan
(whether they result in a reduction in the number of Stations or
change the timing of roll-out) to the extent that such changes
are required or permitted by the ITC in relation to any DTT
multiplex licensee. This clause will not require CTI to increase
the number of Stations without a change in the Charges.
2.4.3 If the BBC wishes during the Term to acquire DTT Transmission
Services from the Subsequent Stations, it will acquire such
services from CTI in accordance with this Clause 2.4.
2.4.4 CTI must comply with the Roll-out Plan in relation to the
Subsequent Stations.
2.4.5 CTI must provide the BBC with such access to each of the
Subsequent Stations and all such information as is reasonably
required (and which CTI is not prevented by statute,
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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regulation or third party confidentiality obligations from supplying) in order
for the BBC to satisfy itself that CTI has complied with its obligations under
Clause 2.4.4.
2.5 DELAY
2.5.1 Without prejudice to CTI's obligations under this Agreement, if
any event occurs which causes or is likely to cause delay in the
installation of any transmitter (including test transmitters) or
if CTI is unable or likely to be unable to meet the Phase 1
Launch Date or the Phase 2 or Phase 3 Service Dates (as the case
may be), it must notify the BBC of the delay, giving reasons for
it and specifying the likely period of the delay.
2.5.2 If the event notified by CTI under Clause 2.5.1 is:
(i) a Force Majeure Event;
(ii) a breach of this Agreement by the BBC;
(iii) delays caused by CTI carrying out work to modify analogue
transmitters other than as set out in Schedule 4;
(iv) delays occasioned by performance by CTI of any Emergency Service
in accordance with Clause 3.2 below;
(v) delays caused by disputes on the issue of an Acceptance
Certificate resolved or determined in CTI's favour;
(vi) delay in obtaining or refusal to grant planning approval to the
extent that the delay is outside CTI's control;
(vii) lack of agreement on national or international frequency co-
ordination or frequency planning or changes in frequencies;
then the Phase 1 Launch Date or the Phase 2 Service Date or Phase 3
Service Date (as the case may be) for affected Stations and the date for
completion of the other obligations of CTI under this Agreement will be
amended to reflect the period of the delay resulting from that event.
Further, the BBC shall pay any reasonable additional costs incurred by
CTI and evidenced to the BBC to overcome or circumvent the matter giving
rise to any delay under Clause 2.5.2(ii) above.
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2.6 MODIFICATIONS TO ANALOGUE TRANSMITTERS
2.6.1 Modifications may be required to the transmission characteristics
of existing analogue transmitters located at Stations or at other
transmission sites to permit the introduction of the BBC
Multiplex and to ensure the transmission of analogue and digital
services without interference from those Stations and other sites
simultaneously with the digital transmission of the Data.
2.6.2 The determination of what modifications are required will require
co-ordination with other industry participants. Although the BBC
will be primarily responsible for this process, CTI must take a
pro-active role in this co-ordination, and will be required to
represent the BBC's interests on relevant working groups.
2.6.3 Details of the modifications to the existing analogue
transmitters which shall be undertaken by CTI are set out in
Schedule 4. Work carried out by CTI in this field in addition to
that described in Schedule 4 may be an additional cost to be
borne by the BBC and agreed between the parties in advance.
2.6.4 Modifications shall be made to transmitters by the Test Date for
the relevant Station.
2.6.5 CTI shall not be responsible for modifying equipment at viewers'
premises.
2.7 INSTALLATION AND TESTING
2.7.1 CTI must, subject to this Agreement, and in particular to Clauses
2.2.3 and 2.7.2, install and test each Station by the Build Date,
and have Accepted each Phase 2 Station and Phase 3 Station by the
Build Date and make each Station Operational by the Phase 1
Launch Date or the Phase 2 Service Date or Phase 3 Service Date
(as the case may be) for that Station. CTI must ensure that by
the Phase 1 Launch Date or Phase 2 Service Date or Phase 3
Service Date (as the case may be) for that Station:
(i) the Station is capable of providing the DTT Transmission Services
in accordance with the Transmission Requirements;
(ii) all Distribution Links and other equipment or facilities
(including multiplex facilities) required in order for CTI to
supply the DTT Transmission Services from the Station are
installed and operating such that the DTT Transmission Services
can be provided from that Station in accordance with the
Transmission Requirements; and
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(iii) the transmitter and other equipment installed at the Station
comply in all material respects with the High Level Design for
the Station. Subject to Clause 2.2.3, such High Level Design will
comply with the Transmission Requirements.
2.7.2 CTI must give the BBC 14 days' notice of when a Station first
becomes available for testing. Each Station must be available for
testing by the Test Date for that Station unless otherwise agreed
between the parties. For the avoidance of doubt, if a Station is
available before that time CTI must notify the BBC in accordance
with this paragraph.
2.7.3 The Acceptance Tests in relation to each Station shall be as set
out in Schedule 6, or as otherwise amended by agreement between
the parties.
2.7.4 The Acceptance Tests will be carried out at such times as are
agreed between the parties, and shall be jointly executed by the
BBC and CTI unless the BBC notifies CTI in writing that CTI may
carry out any such Acceptance Tests itself, in which event the
BBC shall be entitled to attend. CTI shall, in all cases, notify
the BBC with copies of the results of Acceptance Tests, when any
such Acceptance Tests have been completed.
2.7.5 The BBC must notify CTI in writing within 24 hours of receipt of
the results of Acceptance Tests if it considers that the
Acceptance Tests have not been completed successfully in
accordance with Schedule 6 Part 2. If the BBC confirms such
successful completion or does not respond to CTI within the said
24-hour period, then Acceptance for the purposes of this
Agreement will have taken place on the date on which the
Acceptance Tests were delivered to the BBC.
2.7.6 For the avoidance of doubt, Acceptance of a Station in accordance
with this Clause will not affect, remove or mitigate any other
obligations of CTI under this Agreement including, without
limitation, the obligation to provide the DTT Transmission
Services in accordance with the Transmission Requirements and the
obligation to pay Service Credits calculated in accordance with
Schedule 8. No service credits shall be payable in respect of any
Station until that Station's Acceptance in accordance with this
Clause 2.
2.7.7 If within 24 hours of the receipt of the Acceptance Tests the BBC
notifies CTI in writing that it does not consider that the
Acceptance Tests have been completed successfully and CTI and the
BBC shall fail to settle the matter in dispute within a further 7
days, then the question of whether the Acceptance Tests have been
completed successfully
18
will be referred to the Expert described in Clause 5.6.5 for the
Expert's determination as set out in Clause 5.6.5.
2.7.8 If, pursuant to Clause 2.7.7, it is agreed or determined that the
Acceptance Tests have not been completed successfully, CTI shall
be required to take such steps as are necessary to ensure
successful completion of such Acceptance Tests at CTI's expense.
In such circumstances CTI shall also reimburse the BBC in full
for its costs and expenses reasonably incurred in investigating
and disputing the unsuccessful Acceptance Tests. If, pursuant to
Clause 2.7.7, it is agreed or determined that the Acceptance
Tests have been completed successfully then no liquidated damages
or other amounts shall be payable by CTI and the Station(s) in
question shall be deemed to have been Accepted on the date on
which CTI first delivered the Acceptance Tests to the BBC.
2.7.9 Detection of a fault as a result of a helicopter survey conducted
pursuant to the procedure set out in paragraph 12 of Schedule 6
Part 2 shall not of itself affect the timing of completion of the
Acceptance Tests. CTI agrees that if a fault is so detected it
will rectify it within a reasonable period of time, such time to
be agreed between the partes.
2.8 MILLENNIUM COMPLIANCE
CTI must ensure that all software and systems installed or used in the
Transmission Network, or otherwise used in relation to the provision of the
Services, are Millennium Compliant.
19
PART C - SERVICE OPERATION PHASE
3 SERVICES
3.1 DTT TRANSMISSION SERVICE
3.1.1 From the Phase 1 Launch Date or the Phase 2 Service Date or Phase
3 Service Date (as the case may be) in relation to each Station,
CTI shall provide the digital terrestrial transmission of the
Data from that Station using the BBC Multiplex in accordance with
the Transmission Requirements. The Data will be delivered to CTI
at the Interfaces in the form set out in Schedule 7, and CTI
shall be responsible for conveying the Data from the Interfaces
to the Stations for transmission using the Distribution Links.
The services described in this Clause 3.1.1 shall comprise the
"DTT Transmission Service". A detailed description of the DTT
Transmission Service is set out in Schedule 5. Nothing in this
Agreement shall constitute or imply any warranty, representation
or obligation on the part of CTI as to the size or location of
the areas actually capable of receiving Data transmitted by CTI
in accordance with this Agreement or that any such Data is
capable of reception in the whole or part of any such area.
3.1.2 In addition, CTI will ensure that the DTT Transmission Service
is:
(i) performed in accordance with the standard of care to be
reasonably expected of a skilled provider of digital
terrestrial television broadcast transmission services; and
(ii) provided on a continuous basis at all times when the Data
is scheduled by the BBC to be transmitted.
3.1.3 CTI shall not be liable for failure to provide the DTT
Transmission Service:
(i) in respect of any failure or degradation of the signal or
message comprising the Data which arises during
transmission of the Data to the Interfaces and prior to
receipt at the Interface;
(ii) (except as provided in (i) above) where it is temporarily
unable to provide all or part of the DTT Transmission
Service due to a Force Majeure Event;
(iii) where any of the Transmission Network is requisitioned,
taken over or used pursuant to Clause 8 of the DNH
Agreement, any Emergency Powers, including for the making
of Emergency Announcements or the performance of Emergency
20
Services or action taken by any authority pursuant to any
direction under Section 94 of the Telecoms Act or by any
authority pursuant to Condition 6 of CTI's Telecoms Act licence;
(iv) where any part of the Transmission Network is subject to a notice
issued by the Secretary of State or the Radiocommunications
Agency which requires the cessation of, or adversely affects the
provision of, the DTT Transmission Service:
(a) in the interests of long-term spectrum planning; or
(b) in the event of a national or local state of emergency
being declared.
3.1.4 CTI hereby undertakes not to change, add or remove any Data or in
any other way affect the BBC's editorial control of the Data
whether before or after its transmission through the Transmission
Network, other than:
(i) as is necessary to process and multiplex the signals for
the purposes of transmission by the transmitters comprised
in the Transmission Network in accordance with the terms of
this Agreement; or
(ii) where automatic protection systems are in place; or
(iii) for purposes of monitoring the Data as it is transmitted,
provided that any Data which is decoded for purposes of
monitoring is not subsequently recoded for transmission; or
(iv) as directed by the BBC in writing.
Any changes made to the transmission of the Data in the event of
a Force Majeure Event or Transmission Fault shall be the
responsibility of the BBC unless the BBC gives instructions to
CTI to make specified changes to the Data to circumvent the Force
Majeure Event or the Transmission Fault and it is reasonably
practicable to make such changes within the requisite timescale.
3.1.5 This Agreement does not cover the insertion of EPG or CA
information into the Data. However, CTI will be required to
transmit EPG or CA data, which may be inserted by one or more
third parties. CTI must co-operate with, and provide reasonable
assistance where requested, to any such third parties. It shall
ensure that its equipment has the flexibility to support the
transmission of EPG and CA. Any introduction of EPG or CA
21
into the DTT Transmission Service will be dealt with under the
Change Control Procedure.
3.1.6 CTI must use its reasonable endeavours to ensure that no pirated
signal or other unauthorised data is injected to any signal
broadcast using the BBC Multiplex at any stage after the
Interface and at or before transmission by CTI and must use its
reasonable endeavours, to ensure that no Station picks up off air
signals not licensed for broadcasting in the UK and re-transmits
such signals or other unauthorised data using the BBC Multiplex.
If CTI becomes aware of the injection of any pirated signal or
the retransmission of such off air signals it must promptly
inform each of the BBC and the Radiocommunications Agency and co-
operate with any request of the BBC or the Radiocommunications
Agency concerning that pirated signal or other unauthorised data
or off air signal. Any steps taken by CTI to resolve any such
problems which do not result from any breach of this Clause by
CTI shall not be an Accountable Incident for the purposes of this
Agreement.
3.2 EMERGENCY SERVICES
3.2.1 In the event that the BBC notifies CTI that the Data includes any
Emergency Announcements, CTI will transmit such Emergency
Announcements from all Stations notified to it by the BBC (to the
extent that the Station forms part of the Transmission Network at
the time), using, where required, the Transmission Network
(notwithstanding any Planned or Routine Maintenance relating to
such Stations), and will halt, to the extent that it would
otherwise prevent the transmission of such Emergency
Announcements, any emergency fault repair. In the event that the
BBC notifies CTI that it has been requested by the Secretary of
State to refrain from broadcasting or transmitting any matter or
class of matter, the BBC will use reasonable endeavours to
prevent such matter from being sent to the Interfaces.
3.2.2 The BBC will act as required, requested or directed by the
Secretary of State, any Minister of Her Majesty's Government, the
Home Office or the Channel Islands' authorities in providing any
Emergency Announcement, requiring the cessation of any
transmission or taking possession of any of the Stations or any
CTI Equipment. The BBC agrees to use its reasonable endeavours to
provide as much notice as possible of any requirements for an
Emergency Announcement or any of the Emergency Services. Subject
to the terms of any direction given to CTI by Her Majesty's
Government, the
22
BBC and CTI will work together when required by the BBC to plan
the procedures for transmitting Emergency Announcements. In the
event of any dispute between CTI and the BBC, acting on behalf of
the Secretary of State, any Minister, the Home Office or the
Channel Islands' authorities, as to the procedures for
transmitting Emergency Announcements, the reasonable requirements
of the BBC shall prevail.
3.2.3 In the event that the Secretary of State, or any Minister of the
Crown, or official of the Secretary of State authorised to act on
his or her behalf, has concluded that an emergency has arisen as
contemplated by Clause 8.3 of the DNH Agreement then CTI agrees
to permit the Secretary of State to exercise his or her powers to
take control of the transmission of the Data or to do any of the
other acts contemplated by Clause 8.3 of the DNH Agreement. The
Secretary of State or his or her nominee may enter any CTI Sites
(including pursuant to an order or direction made by Her
Majesty's Government requiring this) in exercise of Emergency
Powers and use all CTI Equipment located at such premises or
sites and may use the BBC Multiplex and any spectrum licensed to
CTI under the WTA. The BBC may act on behalf of the Secretary of
State in this regard.
3.2.4 Any provision of any Emergency Services or an Emergency
Announcement, either at the request of the BBC or pursuant to any
Emergency Powers, shall not constitute a breach of any other
requirements of this Agreement or give rise to an obligation on
CTI to make any payment or give any Service Credits to the BBC
and to the extent that the provision of any such services delays
a Launch Date, no damages in this connection shall be payable by
CTI.
3.3 INDUSTRY INVOLVEMENT
3.3.1 The parties understand that launch of DTT in the United Kingdom
will require considerable industry co-ordination and co-
operation. Each of them agrees to use all reasonable endeavours
to participate in relevant industry working groups and to be pro-
active in seeking to achieve industry agreement on matters that
are yet to be determined.
3.3.2 Without limiting the generality of Clause 3.3.1, CTI agrees that
throughout the Term it will:
23
(i) liaise with other multiplex and transmitter network operators and
receiver and set top box manufacturers with a view to ensuring
that the Data can be satisfactorily received and displayed in
accordance with the Transmission Requirements;
(ii) procure that the CTI Representative attends all seminars,
industry meetings or other meetings as the BBC may reasonably
request relating to the subject matter of this Agreement
including, without limitation, meetings relating to digital
terrestrial video broadcasting, CA, SI, EPG and domestic,
regional and international frequency allocation; and
(iii) assist the BBC where requested to make oral or written
representations or submissions to, or conducting negotiations
with, regulators, industry or government bodies or working groups
relating to the subject matter of this Agreement including,
without limitation, representations, submissions or negotiations
relating to digital terrestrial video broadcasting, CA, SI, EPG
and domestic, regional and international frequency allocation.
3.4 SPECTRUM MANAGEMENT
3.4.1 Throughout the Term, CTI will co-operate with and assist the BBC
where requested in relation to spectrum management and frequency
allocation but the BBC remains primarily responsible for such
matters.
3.4.2 CTI will at the request of the BBC and/or the Radiocommunications
Agency investigate at its own cost any instances of interference
to digital or analogue broadcast transmission or reception which
may be related to the Stations or the performance of the DTT
Transmission Services anywhere in the United Kingdom, the Channel
Islands or the Isle of Man. In the event that such interference
is found to be as a direct result of an act or omission by the
BBC, the BBC will be responsible for CTI's costs of investigating
that interference. CTI's obligations under this Clause 3.4.2
shall not extend to investigating interference at viewers'
premises.
3.5 DISTRIBUTION LINKS
3.5.1 CTI will use a fibre distribution network provided by British
Telecommunications PLC ("BT").
3.5.2 The current distribution network is set out in Schedule 12 (the
"NETWORK"). By the completion of Phase 3 in accordance with the
Roll-out Plan and the Phase 3 Launch
24
Date no fewer than 76 Stations will be connected by primary fibre
link to the Network and no fewer than 40 Stations will be
connected with a dual fibre link to this Network. No more than 5
Stations will have dual radio feed connections to the Network.
3.5.3 [*]
4 THE BBC'S OBLIGATIONS
4.1 OPERATIONAL OBLIGATIONS
4.1.1 The BBC shall supply the Data to CTI in accordance with the
Interface Specification for transmission by CTI from the
Interface. No material changes may be made to the Interface
Specification without the agreement of CTI and the BBC.
4.1.2 In the event of interruption or degradation to the signal
carrying the Data occurring prior to receipt by CTI of the Data
at the Interface the onus shall be upon the BBC at its own cost
to establish and remedy at its own cost the cause. CTI shall not
be held to be in breach of any of its obligations under this
Agreement as a result of interruption or deterioration in the
quality of transmission of the Data in such circumstances, unless
that interruption or degradation is as a direct result of the
breach by CTI of any of its obligations under this Agreement .
4.2 DATA
4.2.1 The BBC will supply the Data to the Interfaces in such form as is
necessary to permit CTI to comply with the relevant provisions of
the 1996 Act, the terms upon which the BBC Multiplex is allocated
to the BBC, the WTA or the Telecoms Act and any other licence or
consent which governs or relates to the running of the
Transmission Network, provided that any requirements necessary to
enable CTI to so comply are notified by CTI to the BBC from time
to time.
4.2.2 Without limitation to the generality of Clause 4.2.1, the BBC
will not knowingly permit the Data to contain any material:
(i) which is defamatory, offensive or abusive or of an obscene or
menacing character; or
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
25
(ii) which constitutes a violation or infringement of the rights of
any person (including but not limited to all intellectual
property rights such as moral rights, rights of copyright or
confidentiality) or infringement of any law.
4.2.3 The BBC will indemnify CTI against all Losses arising out of or
in any way connected with the matters referred to in Clause
4.2.2.
4.2.4 The BBC reserves the right, under this Agreement, to vary at any
time the number of channels comprised in the Data and the nature
of the Data that it broadcasts using DTT, provided that the total
capacity required to broadcast the Data is not greater than the
total available on the BBC Multiplex (24.13 Mbit/S).
4.3 BBC AFFILIATES
Subject to the BBC being responsible for compliance with any relevant legal
or regulatory requirements, the BBC may permit its Affiliates to use the
Services. The BBC will be responsible for any use by its Affiliates and for
procuring that its Affiliates comply with the terms of this Agreement.
4.4 FREQUENCY CLEARANCES
As between the BBC and CTI, the BBC shall be responsible for ensuring that
the BBC has been, and continues to be, allocated all the necessary
frequencies for the digital terrestrial television broadcasting of Data in
the UK. CTI will not be responsible for any failure to obtain or delay in
obtaining such allocations.
26
PART D - PROJECT MANAGEMENT, SERVICE MANAGEMENT AND CONTRACT
MANAGEMENT
5 CONTRACT MANAGEMENT, REVIEW OF SERVICES AND DISPUTES
The parties shall comply with the provisions relating to operational
management of this Agreement set out in Schedule 8 hereto.
5.1 SERVICE LEVEL AGREEMENT
5.1.1 Within 3 months from the date of execution of this Agreement CTI
must submit to the BBC a draft service level agreement or
agreements (the "SLA") setting out detailed provisions relating
to the following matters:
(i) performance requirements of the Services;
(ii) operational management of the Services;
(iii) the manner and form of problem notification;
(iv) the mechanism for review of the Services;
(v) the management and escalation of problems arising from this
Agreement; and
(vi) other matters relating to the day-to-day implementation and
operation of this Agreement.
5.1.2 Within 30 days of receipt by the BBC of the draft SLA, the
parties will discuss in good faith the terms of the SLA with a
view to reaching agreement on its terms. CTI will take into
account any reasonable comments of the BBC and modify the SLA
accordingly.
5.1.3 If the terms of the SLA are not agreed within 6 months from the
date of execution of this Agreement, then the agreement of its
terms will be escalated in accordance with Clause 5.6.
5.1.4 The SLA is intended to operate as a functional document which is
used in the day-to-day management and operation of the Services.
It will need to be continually reviewed, in accordance with the
terms of this Clause 5, to reflect the developing nature of the
Services and to ensure the continual improvement of the Services.
27
5.1.5 Each party agrees to comply with the terms of the SLA provided
that, if from time to time there is any inconsistency between the
terms of this Agreement and the terms of the SLA, the terms of
this Agreement will prevail to the extent of the inconsistency.
The agreement of terms in the SLA which are inconsistent with or
supplementary to the terms of this Agreement will not be treated
as a waiver or variation of any terms of this Agreement.
5.2 GENERAL PRINCIPLES AND DEVELOPMENT OF THE SERVICES
5.2.1 It is intended by the parties that they will operate this
Agreement in close communication with the aim of achieving the
closest possible co-operation in relation to the Services. It is
recognised by the parties that to achieve this aim both parties
will need to consult with each other on a frequent basis and
regularly on a daily basis.
5.2.2 CTI will constantly strive to improve the quality, reliability
and value for money of the Services in accordance with the
principles set out in paragraph 2 of Schedule 3 hereto.
5.2.3 CTI will approach the provision of the Services to the BBC in an
innovative and creative fashion.
5.2.4 On or before 30 September in each Year (or on such other date as
is agreed), CTI will provide to the BBC an annual written report
to be prepared at its own cost which:
(i) describes the changes and improvements made during the last Year
to the infrastructure and facilities used to provide the Services
and those planned for the next Year and subsequent Years;
(ii) contains a summary of industry trends and innovations, sufficient
to give the BBC an understanding of options that may exist for
future improvement or development of the Services and technology
developments that could improve the quality, reliability and
value for money of the Services;
(iii) includes an executive summary; and
(iv) is otherwise in such format and contains such material as the
parties agree.
5.2.5 CTI acknowledges that the BBC wishes to be able to take advantage
of potential improvements in technology which will improve the
quality of the Services and to ensure that it is placed to meet
industry developments. CTI will inform the BBC of any
28
changes, developments or industry trends that may assist the BBC
in achieving this aim and will inform the BBC Representative of
any means of which it is aware from time to time to improve the
reception of the Data, the coverage area receiving the Data, or
the quality, reliability or value for money of the Services.
5.2.6 The parties shall work together in good faith in carrying out
their respective obligations under this Agreement.
5.3 PROJECT AND CONTRACT MANAGEMENT AND OPERATIONAL MANAGEMENT
5.3.1 In respect of the day-to-day management of this Agreement and the
performance of each part of the Services:
(i) CTI will deal with the BBC Operational Point of Contact; and
(ii) the BBC will deal with the Technical Operations Centre.
5.3.2 CTI must appoint a person who will be the BBC's primary point of
contact at CTI in relation to the roll-out of the Transmission
Network (the "PROJECT MANAGER"). CTI must also appoint a person
who will be the BBC's primary point of contact at CTI in relation
to the provision of the Services (the "SERVICES MANAGER"). The
initial Project Manager will be Xxxxxx Xxxxx and the initial
Services Manager will be Xxxxx Xxx.
5.3.3 The Project Manager and the Services Manager may be the same
person or they may be two different people.
5.3.4 [*]
5.3.5 CTI must give the BBC at least 1 month's notice of the removal of
the Project Manager or the Service Manager, unless it is unable
to do so and the removal results from the resignation, dismissal
with due cause, illness or death of the Project Manager or
Services Manager or any other similar event outside the control
of CTI ("UNAVOIDABLE EVENT"). If an Unavoidable Event occurs, CTI
must advise the BBC as soon as reasonably practicable after it
becomes aware that the Unavoidable Event will result or is likely
to result in the removal of the Project Manager or the Services
Manager.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
29
5.3.6 CTI must provide the BBC with details of the experience of any
proposed replacement for the Project Manager or the Services
Manager and must give the BBC the opportunity to meet with the
proposed replacement. The replacement must be approved by the
BBC, such approval not to be unreasonably withheld. Except in
cases where an Unavoidable Event has occurred, the replacement
must be approved by the BBC prior to the removal of the Services
Manager or the Project Manager.
5.3.7 Except in cases where an Unavoidable Event has occurred, when a
replacement Services Manager or Project Manager is appointed,
there must be at least a one-month handover period where the
replacement works together with the outgoing Services Manager or
Project Manager, as the case may be.
5.3.8 The BBC Representative will be the BBC's primary point of contact
for the Project Manager and the Services Manager.
5.3.9 The BBC Representative and the Project Manager will meet once
every month, or more frequently at the request of either party,
until both parties agree that such meetings are no longer
required. These meetings will relate to the roll-out of the
Transmission Network. Each month, the Project Manager will be
required to provide the following:
(i) an overall programme plan indicating the main implementation
issues, including acceptance and end-to-end testing and
identifying the critical path for roll-out of the Transmission
Network and provision of the DTT Transmission Service;
(ii) XXXXX charts showing clearly the timescale and relationship
between each phase of the project, including major milestones,
and clearly indicating any critical areas; and
(iii) progress reports showing developments and progress against the
plan. An updated version of the flow diagram or XXXXX chart,
revised to show progress and re-calculated to show any changes to
the forecast ready for service date shall be provided with every
progress report.
5.3.10 The BBC Representative and the Services Manager will meet once
every month, or more frequently at the request of either party,
beginning at least three months prior to the Phase 1 Launch Date
or at such other time as is agreed.
30
5.4 SERVICE MANAGEMENT BOARD
CTI and the BBC will establish a Service Management Board to deal with all
major matters concerning the amendment, or the reviewing of the operation,
of this Agreement. It will consist of two or more representatives of each
party, including the Services Manager, the Project Manager and the BBC
Representative. The Board will meet quarterly, or at such other time as is
agreed between the parties. Its remit will be as follows:
5.4.1 to make recommendations to the parties regarding the need for, and
implementation of, changes to the Services or the SLA;
5.4.2 to attempt to resolve any disputes that may arise between the
parties which cannot be satisfactorily resolved between the
Services Manager and the BBC Representative or the Project Manager
and the BBC Representative, and which are referred to it in
accordance with Clause 5.6, and to make recommendations to the
parties regarding any such dispute;
5.4.3 to monitor technological developments in telecommunications and
broadcasting which may affect the provision of the Services and to
make recommendations to the parties regarding the desirability of
improving the Services in light of such changes and to consider and
plan for the implementation of new services;
5.4.4 to make recommendations on changes to this Agreement required by
reason of changes to the Charter and DNH Agreement; and
5.4.5 any other matters on which the parties agree from time to time.
5.5 ANNUAL REVIEW
CTI and the BBC will hold an annual review meeting which must be attended
by the Chief Executive Officer of CTI (or a replacement reasonably
acceptable to the BBC) and the BBC's Director of Policy and Planning (or a
replacement reasonably acceptable to CTI).
5.6 DISPUTES
5.6.1 Any complaints, disputes or problems (each an "ISSUE") relating to
this Agreement will be escalated as set out in this Clause 5.6.
5.6.2 Any Issue will be referred in the first instance to the BBC
Representative and either the Project Manager or the Services
Manager, as appropriate. The BBC and CTI will procure that their
respective representatives discuss in good faith any Issue with a
view
31
to resolving it. If an Issue is not resolved to the satisfaction of
either party within 30 days of both parties having first been aware
of it, then either party may refer it to the Service Management
Board.
5.6.3 If an Issue is referred to the Service Management Board, then each
party must procure that their Representatives on that Board discuss
the Issue in good faith at the next meeting of the Service
Management Board with a view to resolving it. Either party may
convene a meeting of the Service Management Board to be held within
14 days of an Issue being referred to it. If the Issue is not
resolved to the satisfaction of both parties within 7 days of the
meeting of the Service Management Board, then either party may
require that the Issue is dealt with under Clause 5.6.4.
5.6.4 Where an Issue is to be dealt with under this Clause 5.6.4, the
parties will ensure that, for the BBC, the Director of Policy and
Planning, and for CTI, the Chief Operating Officer, will meet
together with a view to resolving the Issue. The parties will allow
30 days from the date of escalation of the matter for such
consultation or discussions to take place before referring the
Issue to adjudication or initiating any arbitration or other legal
proceedings.
5.6.5 If an Issue is not resolved pursuant to Clause 5.6.4 and it relates
solely to matters of an engineering or technical nature, either
party may refer it for adjudication to the President for the time
being of the Institution of Electrical Engineers, or his nominee.
The President or his nominee shall act as an expert, not an
arbitrator. The Expert shall in no circumstances be an employee,
agent or sub-contractor of NTL, CTI or the BBC and shall in all
other ways be independent of all such persons. The party referring
any Issue for adjudication must deliver to the expert and the other
party a notice setting out the matters in dispute and any relevant
supporting evidence. The other party shall be entitled to reply to
the notice and such evidence, delivering such reply to the expert
and the party referring the Issue. Otherwise, the expert shall be
entitled to decide on the procedure he or she wishes to adopt. Any
determination of the expert must be in writing and shall be final
and binding on both parties, failing any manifest error on the face
of the decision. Unless the expert determines otherwise, both
parties will bear their own costs of the determination and half the
costs of the expert.
5.6.6 If an Issue is not resolved pursuant to Clause 5.6.4 and it does
not relate solely to matters of an engineering or technical nature,
either party may refer it to mediation in
32
accordance with the Centre for Dispute Resolution procedures then
in force. If after 30 days either party believes that mediation has
not resolved the Issue, then either party may proceed to
litigation. Unless agreed otherwise, each party will bear its own
costs of the mediation and half the costs of any third party
involved.
5.6.7 Except where clearly prevented by the nature of the Issue, the
parties must continue performing their respective obligations under
this Agreement while any Issue is escalated in accordance with this
Clause 5.
6 CHANGE CONTROL
6.1 CHANGES BY CTI
6.1.1 Subject to Clause 6.1.2, CTI shall not make any changes to the High
Level Design which have or may have a material effect on the
performance of CTI's obligations under this Agreement without the
BBC's prior written consent, not to be unreasonably withheld or
delayed. CTI may make any other changes to the High Level Design
provided it notifies the BBC of the proposed changes and the reason
for such proposed changes in advance in writing. CTI may make other
changes to the Transmission Network provided that:
(i) any such changes do not detract from, reduce or impair the
performance or operation of the Services or the Transmission
Network (which includes the flexibility of the Transmission
Network);
(ii) CTI is still able to comply with the Transmission Requirements and
the Target Performance Measures; and
(iii) it notifies the BBC of such changes in advance in writing and,
where such proposed changes are notified to the BBC before
completion of Phase 3 and subject to Clause 6.1.2 below, CTI
obtains the BBC's prior written consent, such consent not to be
unreasonably withheld or delayed.
6.1.2 The BBC's consent under Clause 6.1.1 shall not be required where:
(i) closure of a Station is necessitated by a Force Majeure Event; or
(ii) closure is required, either on a temporary or a permanent basis, by
reason of road building or other civil works carried out by a
government or public sector body or
33
any other person acting under a concession granted by a
government or public sector body; or any other person acting
under a concession granted by a government or public sector
body; or
(iii) if the change is required by law, any national or supranational
regulatory authority, the Radio Regulations, or any statutory
obligations.
In such circumstances, the parties agree to make all necessary
consequential amendments to this Agreement in accordance with the
Change Control Procedure.
6.1.3 In making any changes in accordance with this Clause 6.1, CTI
will have regard to the BBC's programme scheduling requirements
and give the BBC's Representative as much written notice as
reasonably practicable, with sufficient details of any proposed
changes.
6.2 [*]
6.3 OTHER CHANGES
6.3.1 Each of the parties acknowledges that the nature of the Services
being provided under this Agreement means that they are likely to
change as digital terrestrial television broadcasting develops in
the United Kingdom and in Europe.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
34
6.3.2 Either party may from time to time request or suggest a change to
the Services provided under this Agreement. Any such request or
suggestion will be dealt with in accordance with the Change Control
Procedure.
6.3.3 All modifications or amendments to this Agreement must be in writing
and signed by both parties and must specify which Clauses and
Schedules are intended to be amended. All modifications or
amendments to this Agreement must be agreed in accordance with this
Clause 6.
7 PERFORMANCE MONITORING AND REPORTING
7.1 MONITORING
7.1.1 Detailed provisions relating to monitoring and reporting of
performance will be contained in the SLA. To the extent that there
is any inconsistency between the terms of the SLA and the terms of
this Clause 7, the terms of this Clause will prevail unless the
parties agree otherwise in writing.
7.1.2 CTI must install and operate monitoring, control and reporting
equipment to allow the dynamic checking of:
(i) the integrity of the received and broadcast MPEG transport stream;
(ii) compliance with the ERP and equivalent loss of noise margin
requirements; and
(iii) the transmission of the Data against the Transmission Requirements
and Target Performance Measures.
7.1.3 The monitoring performed by CTI must comply with the requirements
set out in Schedule 8 and such other requirements as are agreed
between the parties from time to time.
7.1.4 CTI must monitor the quality of the signal received at the
Interfaces. CTI must immediately notify the BBC Operational Point of
Contact where any signal interruption or degradation is identified
and provide all reasonable assistance to the BBC in establishing and
remedying its cause.
7.1.5 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
35
[*]
7.1.6 If any process of monitoring or verification which is required by
the BBC requires an interruption of the DTT Transmission Service and
CTI advises the BBC prior to the performance of the monitoring or
verification that such an interruption will be required and gives it
the option as to whether or not to continue, CTI will not be
required to pay Service Credits if the BBC elects to continue and
the monitoring or verification results in an Accountable Incident.
If any process of monitoring or verification does not require
interruption or the BBC is not advised prior to it being performed
that it requires an interruption, then Service Credits will be
payable in respect of any Accountable Incident that results from the
monitoring or verification.
7.2 COMPLIANCE WITH THE TRANSMISSION REQUIREMENTS AND PERFORMANCE STANDARDS
7.2.1 If the BBC reasonably believes that CTI has failed to comply with
the Transmission Requirements or Target Performance Measures or that
other impairments to the transmission of the Data have occurred in
respect of any of the Stations, it may give to CTI written notice to
this effect, and CTI shall carry out checks within seven days of the
date of such notice to ascertain whether such failure has taken
place and provide the results of such checking to the BBC and take
any measures needed to comply with the Transmission Requirements and
Performance Standards (provided that, in the event of any dispute
between the parties, that dispute shall be referred to the BBC
Representative and the CTI Representative and thereafter dealt with
according to the contract management procedure set out in Clause 5).
Where it is substantiated (either by agreement or by expert
determination) that such failure has taken place, then the BBC shall
be entitled to recover Service Credits to the extent of a failure to
meet the Transmission Requirements in accordance with Clause 11.3.
7.2.2 Performance measurement to ensure compliance with the Transmission
Requirements shall take place [*]. During such tests, CTI shall
deploy staff at a sufficient number of Stations and will carry out
sufficient tests to ensure that the Transmission Network as a whole
performs in accordance with the Transmission
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
36
Requirements. In order to perform these tests, the BBC may apply an
agreed set of test signals to the Transmission Network, in place of normal
programme material. Each of the BBC and CTI shall bear its own costs in
respect of such tests. If the network tests described above reveal that
the Performance Standards are not being achieved, then:
(i) CTI must immediately rectify any defects in the Transmission Network
so as to ensure that the Performance Standards are achieved;
(ii) CTI must make the Transmission Network available for re-tests to
take place. In undertaking such re-tests, CTI shall endeavour to
minimise disruption to the Services. CTI shall be responsible for
all costs of such re-tests, including any reasonable costs incurred
by the BBC; and
(iii) CTI will be liable to pay Service Credits in respect of any failure
to meet the Performance Standards which is revealed as a result of
the network tests until such time as the Performance Standards are
met.
7.3 PERFORMANCE REPORTING
7.3.1 CTI will produce a monthly performance review report relating to its
compliance with the Transmission Requirements and Performance
Standards. The report must be in a form to be agreed between the
parties, but must include, as a minimum, the following:
(i) a list of all Transmission Faults that have occurred during the
period covered by the report (including Transmission Faults which
are not Accountable Incidents);
(ii) a separate list of all Accountable Incidents that have occurred
during the period covered by the report;
(iii) information showing details of actual performance which has differed
significantly from the Target Performance Measures during the period
covered by the report; and
(iv) such other information as is agreed between the parties from time to
time.
7.3.2 The report required under Clause 7.3.1 shall be sent to the BBC
Representative within seven days of the end of each month.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
37
7.4 PERFORMANCE DATABASE
7.4.1 All source material relevant to monitoring, as specified in Schedule
8, shall be recorded by CTI in an electronic database more fully
described in Schedule 12 (the "PERFORMANCE DATABASE") which will be
archived on a monthly basis and the data kept for 3 years from the
end of the then current Year.
7.4.2 CTI must provide the BBC with on-line access to the Performance
Database. The BBC may use and copy the Performance Database and any
information or data contained in the Performance Database or
otherwise supplied pursuant to this Agreement relating to CTI's
compliance with this Agreement solely for the purposes of this
Agreement, assessing the performance of digital terrestrial
broadcasting generally and in performance of its obligations to the
Department of Culture, Media and Sport in relation to this Agreement
and the performance of digital terrestrial broadcasting only.
7.4.3 If CTI becomes aware at any time that the information contained in
the Performance Database is or may be inaccurate, it must promptly
notify the BBC and must reprocess the data so that it is accurate
and provide the BBC with the revised information. If the BBC
considers that the Performance Database is or may be providing
inaccurate information it may advise CTI and CTI must promptly
investigate the potential inaccuracy.
7.4.4 The information provided by the Performance Database will be used
for the purpose of measuring CTI's compliance with its obligations
under this Agreement. It will be assumed to be accurate unless:
(i) it is reasonably apparent that it is incorrect or it is likely that
it has not been calculated correctly; or
(ii) either party demonstrates that it is not correct or that it is
likely that it has not been calculated correctly.
7.4.5 CTI must provide the BBC with one copy in a format specified by the
BBC of such application software as may be required in order to
enable the BBC to access the Performance Database (the "SOFTWARE").
CTI hereby licenses the BBC and, subject to Clause 7.4.6 below,
wholly-owned subsidiaries of the BBC on a non-exclusive basis for
the Term to use the Software at any location from which the BBC
conducts business from time to time for the purposes of monitoring
the supply of the Services under this
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
38
Agreement, assessing the performance of digital terrestrial
broadcasting generally and in performance of its obligations to the
Department of Culture, Media and Sport for the Term and a reasonable
period thereafter. The BBC may make such backup copies of the
Software as may be reasonably required provided that it applies its
standard security procedures to the storage of that Software. All
copies of the Software shall be returned to CTI by the BBC and its
Affiliates on the termination or expiry of this licence.
7.4.6 Any other party may be licensed to use the Software pursuant to
Clause 7.4.5 upon:
(i) the BBC requesting the same of CTI;
(ii) CTI giving its specific consent (not to be unreasonably withheld or
delayed); and
(iii) the BBC showing that it has procured sufficient confidentiality
obligations in relation to such software and the Performance
Database to meet CTI's reasonable concerns.
7.4.7 CTI warrants that:
(i) the Software will, when modified for BBC use pursuant to Clause
7.4.5 above and when provided to the BBC, be of satisfactory quality
and fit for the purpose for which it is supplied;
(ii) the Software will, when modified for BBC use pursuant to Clause
7.4.5 above, and when provided to the BBC, be free from known
viruses;
(iii) the information provided from the Performance Database will be free
from material errors; and
(iv) use by the BBC or its Affiliates of the Performance Database and the
Software in accordance with the terms of this Clause 7.4 will not
infringe the intellectual property rights of any party.
8 ACCESS
8.1 BBC ACCESS TO STATIONS
8.1.1 The BBC or the BBC's nominated contractor(s) shall be permitted
access to each of the Stations at least once per annum per Station
by prior notice from the BBC Representative and by arrangement with
CTI for the purpose of conducting routine
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
39
checks of the Transmission Network in order to ascertain whether it
is meeting the Transmission Requirements.
8.1.2 Where the BBC, or the BBC's nominated contractor(s) on behalf of the
BBC, exercises its rights to access to the Stations, CTI may require
that the BBC or the BBC's nominated contractor is accompanied by one
appropriate member of CTI staff, at CTI's cost.
8.1.3 The BBC shall comply with CTI's or NTL's reasonable regulations as
notified to it from time to time when entering into and performing
work on CTI's Sites and shall procure that each of its nominated
contractors shall do the same. The BBC hereby indemnifies CTI for
any loss or damage which it may suffer as a result of any acts or
omissions of it or its nominated contractors in this connection.
8.2 BBC ACCESS TO RECORDS
8.2.1 The BBC may by prior notice and arrangement with CTI require access
to or copies of any specifications or diagrams of any of the
Stations which are in the possession or control of CTI.
8.2.2 The BBC has the right to audit any records on which the billing
information provided under Clause 11.2 is based subject to the BBC's
agreement to procure that all such records are kept confidential and
used only for purposes connected with the verification of such
billing information or disputing invoices. Such audit may be
conducted by the BBC, or on the BBC's behalf by an independent
auditor, not more than twice in each Year of this Agreement and at
the BBC's cost. In the event that such audit reveals any discrepancy
in any information provided relating to the Charges or in the
Charges the BBC and CTI agree to rectify such discrepancy as soon as
practicable. If CTI disagrees on the existence of a discrepancy then
the matter shall be referred to the Service Management Board. In the
event that any audit reveals overpayment by the BBC of more than 1
per cent of the Charges or other amounts payable in any Year of this
Agreement, CTI shall be responsible for all costs of the BBC's
audit.
8.3 CTI ACCESS TO MASTS, STATIONS AND BBC SITES
8.3.1 CTI will be required, where necessary, to negotiate with other
transmitter mast providers to ensure that the BBC Multiplex and
other digital terrestrial television multiplexes are radiated from
the same mast at each Station.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
40
8.3.2 Where transmitters are required to be installed and operated at sites
which are not CTI Sites, CTI is responsible for obtaining such rights
of access to that site and the facilities located at that site for
itself and for the BBC as are necessary in order for CTI to perform
its obligations under this Agreement.
8.3.3 CTI may locate such equipment at BBC Sites for purposes of providing
the Services as is agreed with the BBC in writing, subject to CTI
entering into a Site Sharing Agreement in relation to each such BBC
Site at no greater than a nominal charge.
8.3.4 For the avoidance of doubt, CTI will be a licensee only in respect of
any BBC Site for which a Site Sharing Agreement is entered into and
nothing in this Agreement shall imply any relationship of landlord and
tenant or operate (save as may be specifically required) to give CTI
any greater interest in the BBC Sites than that of a hirer of
services. If there is any inconsistency between this Agreement and any
Site Sharing Agreement the terms of this Agreement shall prevail.
9 THIRD PARTY SERVICES
Nothing in this Agreement shall prevent CTI from entering into any
arrangements with any third parties to provide broadcasting, transmission
and/or any other telecommunications services from the Stations. CTI agrees
that such new arrangements shall not detrimentally affect the contracted
provision of the Services to the BBC and CTI agrees not to use the BBC
Multiplex other than for performance of the DTT Transmission Services except
as otherwise agreed by the BBC (which agreement may be withheld in the
absolute discretion of the BBC).
10 MAINTENANCE AND FAULTS
10.1 FAULT REPORTING AND REPAIR
10.1.1 CTI shall provide a fault reporting information system operating in
accordance with Schedule 8 and use that system to notify the BBC if
it has failed to provide a Service and otherwise to test compliance
with the Transmission Requirements and the Target Performance
Measures.
10.1.2 CTI will repair or otherwise attend to all Transmission Faults in
accordance with Schedule 8 and Clause 10.2.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
41
10.2 ROUTINE MAINTENANCE AND PLANNED INTERRUPTIONS
10.2.1 ROUTINE MAINTENANCE AND INTERRUPTION
(i) CTI shall only interrupt the DTT Transmission Service or depart from
the Transmission Requirements or Performance Standards at any one or
more of the Stations for the purposes of access to works, safety and
Routine Maintenance if it has agreed such interruption or reduction
with the BBC in advance, in which case each interruption or reduction
shall be a Planned Interruption. Where such access, safety and
Routine Maintenance and/or repairs constitute and cause Accountable
Incidents, the BBC shall be entitled to recover Service Credits
calculated in accordance with Schedule 8.
(ii) The BBC's prior agreement is not needed where CTI is obliged to carry
out work because of any legal or regulatory requirement or if either
the Radiocommunications Agency or the BBC has asked it to investigate
or rectify any Harmful Interference. If any legal or regulatory
requirement is not immediate, CTI shall agree any interruption or
departure with the BBC and the BBC agrees to consider such requests
in good faith with a view to ensuring that CTI is not in breach of
any such legal or regulatory requirement. In all such circumstances,
such interruptions or departures shall not be an Accountable
Incident.
10.2.2 PLANNED INTERRUPTIONS
(i) CTI may reduce or affect the Transmission Requirements or Performance
Standards in order to carry out inspections, alterations,
installation works, renewal of or repairs to any equipment at any
Station forming part of the Transmission Network, including any
reduced power operation at any Station and any notified power
outages, provided CTI shall not cause or otherwise permit such
interruptions without first giving reasonable advance notice to the
BBC, and shall obtain agreement from the BBC as to the dates and
times that such interruptions shall take place, such agreement not to
be unreasonably withheld or delayed. Such interruptions shall be
"Planned Interruptions". CTI shall use all reasonable endeavours to
minimise such Planned Interruptions. Where the reduction or effect to
the Transmission Requirements or Performance Standards constitute and
cause
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
42
Accountable Incidents, the BBC shall be entitled to recover Service
Credits calculated in accordance with Schedule 8.
(ii) The BBC's prior agreement to a Planned Interruption is not needed
where CTI is obliged to carry out work because of any legal or
regulatory requirement. If any legal or regulatory requirement is
not immediate, CTI shall agree any reduction with the BBC and the BBC
agrees to consider such requests in good faith with a view to
ensuring that CTI is not in breach of any such legal or regulatory
requirement. If any Planned Interruption is a result of any legal or
regulatory requirement, the interruption shall not constitute an
Accountable Incident.
10.3 EMERGENCY FAULT REPAIR
10.3.1 In the event of any interruption to the provision of the Services as
a result of a Force Majeure Event, or an imminent fault reasonably
apparent to CTI, CTI may interrupt the transmission of the Data for
the purposes of dealing with the emergency. CTI will give the BBC
Representative immediate notice of the event and whenever possible
shall give notice to the BBC Representative of the duration of the
interruption.
10.3.2 CTI shall use all reasonable endeavors to minimise the duration and
effect on the provision of the Services of any unscheduled
interruption or fault.
10.3.3 In the case of an emergency, when transmission of the Data cannot be
restored at full power, reduced power will be employed.
10.3.4 An Interruption of Services for an emergency will constitute an
Accountable Incident unless it is a consequence of a Force Majeure
Event.
10.4 GRADED BROADCASTS
10.4.1 The BBC will notify CTI annually of the Graded Broadcasts that it
expects to occur during the following year. If an urgent Graded
Broadcast occurs which was not included in the annual notification,
the BBC will give CTI as much notice of the Graded Broadcast as it is
reasonably able to give.
10.4.2 Subject to Clause 10.4.1, CTI must not conduct any planned or Routine
Maintenance during a Graded Broadcast or during a reasonable period
either side of a Graded Broadcast, the duration of that period to be
agreed on a case by case basis by the parties.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
43
10.5 SERVICE PRIORITIES
10.5.1 When all or any of the Services cannot be restored at full power,
reduced power operation of all or any of the Services will be
employed, if no other arrangements are available to maintain the
agreed Services. If it is not possible to restore Services to all or
any of the Stations, the Operational Priority Stations will be
restored first, and in accordance with an order to be agreed with the
BBC. If CTI is also providing analogue or digital transmission
services to third parties, the parties will hold discussions in good
faith with a view to agreeing the order of priority for restoration
of those services with the principle being that the BBC's services
should be given at least as high a priority as the services of any
other party.
10.5.2 During a state of national emergency, a different order of priority
may be introduced and CTI will comply with the instructions of the
BBC Representative or such other person as is authorised to give such
instructions provided these instructions are not in breach of any
other instructions given by representatives of Her Majesty's
Government.
10.6 DISASTER RECOVERY
10.6.1 CTI shall discuss and comply, where any BBC disaster recovery plan
covers the Services or any part of the Services, with the reasonable
requirements of the BBC disaster recovery plan or any other emergency
procedures which may be developed from time to time and notified to
CTI by the BBC.
10.6.2 CTI must implement and comply with the requirements relating to
Disaster Recovery as set out in Schedule 11.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
44
PART E - PRICING
11 CHARGES, PAYMENT AND BILLING
11.1 CHARGES AND PAYMENT FOR THE SERVICES
The Charges payable under this Agreement by the BBC shall be calculated as
set out in Schedule 2. The Charges for each Year will be paid in 12 monthly
installments. In addition to the Charges, the BBC will pay all fees payable
pursuant to the WTA Licences held by CTI for the purposes of carrying out its
obligations under this Agreement, subject to CTI providing the BBC in advance
with copies of such WTA Licences and evidence from the Radiocommunications
Agency of the level of, and obligation to pay, such fees.
11.2 INVOICES
11.2.1 CTI will invoice the BBC monthly in arrears, with invoices to be
issued at the end of each month. All invoices will be addressed to
the BBC Representative.
11.2.2 Each invoice rendered by CTI must be accompanied by such billing
information and be in such format as the BBC may reasonably require.
11.2.3 Except as set out in Schedule 2, all correct Charges on an invoice
submitted by CTI under this Agreement will be payable by the BBC at
the end of the month following the month in which a correctly
prepared invoice is received by the BBC. The BBC will pay by cheque,
or by such other method as may be agreed from time to time between
the parties without any set-off, deductions or withholdings other
than as set out in this Agreement.
11.2.4 In the event that any Charges are disputed, the BBC shall be entitled
to withhold any disputed amounts, provided the BBC shall have given
reasonable notice to CTI of the dispute relating to the Charges
together with a reasonable description of the basis on which the BBC
is disputing the Charges. In the event that any Charges are withheld
by reason of a dispute, CTI and the BBC will both use their best
endeavors to resolve any such disputed amount prior to the time of
delivery of CTI's next invoice.
11.3 FAILURE TO MEET SERVICE OBLIGATIONS - SERVICE CREDITS
11.3.1 The Charges payable hereunder will be subject to Service Credits,
calculated in accordance with Schedule 8. Any Service Credits
incurred will be set off against the Charges payable under the first
invoice rendered by CTI following the month in which
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
45
the obligation to give Service Credits is determined in accordance
with Schedule 8. Service Credits are intended to act as an incentive
to CTI to provide quality services to the BBC and is not intended to
result in a lower price being paid for a poorer quality service.
11.3.2 Service Credits will not be available to the BBC to the extent that
the failure of CTI to meet all or any part of its obligations under
this Agreement results directly from the BBC's act, fault or omission
or from any Force Majeure Event or from any failure of the BBC to
comply with the WT Act and shall not be payable in respect of a
Station until that Station has been accepted and is in service.
11.3.3 CTI's total aggregate liability in respect of all obligations to pay
Service Credits in any one Year, will be [*].
11.3.4 To the extent that any obligation of CTI to pay Service Credits is
due to a new technology problem which does not arise through any
fault of CTI and is beyond CTI's reasonable control, the BBC will
waive its right to the payment of Service Credits for the period
beginning on the date on which the BBC and CTI have agreed in good
faith a process to resolve the problem and ending on the date that
CTI has achieved a workable solution to such a problem, PROVIDED
always that CTI has at all times used all reasonable efforts to
achieve such solution as soon as is reasonably possible.
11.3.5 If, after provision of the DTT Transmission Service has commenced by
CTI, there is a total failure to transmit the Data across the
Transmission Network in circumstances where the failure to transmit
is an Accountable Incident, rather than a partial failure to transmit
any of the Data, for anything other than an immaterial period of time
having regard to the nature of the Data, then CTI shall not [*]. The
BBC shall not be entitled to obtain such services elsewhere if CTI is
able at any reasonable time to perform such services and undertakes
to do so, subject to any rights of termination under Clause 12, and
subject to a reasonable period following notice of CTI's intention to
recommence performance of the Services. If CTI pays any monies under
this Clause, no Service Credits shall be
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
46
payable in respect of the period of time for which there is a failure
to perform which is compensated under this Clause.
11.3.6 The right to claim Service Credits under this Clause 11.3 is without
prejudice to any other right that the BBC may have if CTI fails to
comply with the terms of this Agreement.
11.4 [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
47
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
48
PART F - TERM AND TERMINATION
12 TERM AND TERMINATION
12.1 COMMENCEMENT AND RENEWAL
12.1.1 This Agreement will come into force on the Effective Date and,
subject to this Clause 12, shall continue in force for the Term.
It will continue after the Term until terminated by either party
on six months' notice expiring on or after the end of the Term.
12.2 TERMINATION ON CESSATION OF DTT
12.2.1 The BBC may terminate this Agreement by giving CTI at least one
year's written notice at any time during the three-month period
following the fifth anniversary of the Phase 1 Launch Date, in
the event that the Board of Governors of the BBC (or such
equivalent body as may replace it) believes, at its sole
discretion, that DTT does not have sufficient public take-up to
justify continuing to provide the Services. In the event of
termination of this Agreement by the BBC pursuant to this Clause
12.2.1 the BBC shall not obtain digital television transmission
services in the UK from any service provider other than CTI for a
period of five years from the date of termination. The parties
acknowledge that the right to terminate set out in this Clause
12.2.1 has been granted because of the BBC's position as a public
service broadcaster at the date of this Agreement, but that it is
in no way conditional upon the BBC remaining so.
12.2.2 If the BBC terminates this Agreement under Clause 12.2.1, then it
must pay to CTI a termination payment by cash, cheque or bank
transfer (subject to the BBC's right to set off any monies which
the BBC and CTI agree or have previously agreed are due to the
BBC from CTI or any outstanding Service Credits) calculated in
accordance with Part 2 of Schedule 2 within 30 days after the
Agreement terminates. This Agreement will continue in full force
and effect for the period of the notice.
12.2.3 Termination of this Agreement under Clause 12.2.1 shall give the
BBC no right to purchase Dedicated Equipment under the procedure
set out in Clause 13.2 below.
12.3 TERMINATION FOR INSOLVENCY
Either party has the right to terminate this Agreement with immediate
effect by notice if:
12.3.1 a liquidator, administrative receiver, administrator or receiver
is appointed (other than for the purpose of an amalgamation or
reconstruction the terms of which have been
49
previously approved by the party having the right to terminate
(such approval not to be unreasonably withheld or delayed in the
case of a solvent amalgamation or reconstruction)) in respect of
the whole or a material part of the assets and/or undertaking of
the other party; or
12.3.2 the other party enters into an arrangement or composition with
its creditors, or if it becomes unable to pay its debts within
the meaning of Section 123 of the Insolvency Xxx 0000.
12.4 SUSPENSION/TERMINATION OF INDIVIDUAL SERVICES
12.4.1 CTI may suspend provision of the Services in whole or in part
until further notice on notifying the BBC either orally
(confirming such notification in writing), or in writing with
immediate effect if:
(i) CTI is entitled to terminate this Agreement; or
(ii) CTI is obliged to comply with an order, instruction or request by
any Government minister, the Home Office, the Channel Islands or
Isle of Man authorities, an emergency services organisation or
other competent administrative authority.
12.4.2 If CTI exercises its right of suspension in respect of an event
referred to in Clause 12.4.1(i), this will not exclude CTI's
right to terminate this Agreement later in respect of that or any
other event, nor will it prevent CTI from claiming damages from
the BBC resulting from such event if the BBC is in breach of this
Agreement.
12.4.3 Notwithstanding Clause 12.4.1(ii), it is acknowledged that, in
the event of an emergency, the respective obligations of the BBC
and CTI will be governed by special arrangements under the
relevant Emergency Powers and CTI agrees that it will not suspend
service to the BBC other than on, or in order to comply with, the
instructions by the relevant authorities in the event of an
emergency.
12.5 FORCE MAJEURE
12.5.1 In the event of the occurrence of a Force Majeure Event affecting
either CTI or the BBC, the affected party shall give notice in
writing thereof to the other party as soon as possible and shall
likewise give notice on the cessation of the Force Majeure Event.
The parties agree to discuss a course of action and to comply
with any agreed course of action pursuant to Clause 12.5.2.
Subject thereto, if the Force Majeure Event continues
50
for a period of more than 60 days following a failure to either agree
a course of action under Clause 12.5.2 or to comply with such a
course of action, then the non-defaulting party shall have the right
to terminate where the Force Majeure Event affects all or
substantially the whole of the Stations comprised in all or part of
this Agreement, all or that part of this Agreement by not less than
30 days' prior notice.
12.5.2 Where a Force Majeure Event occurs, other than one affecting delivery
of the Data to CTI for transmission which causes suspension of the
Services, CTI will use its reasonable endeavors to continue to carry
out the Services while any Force Majeure Event subsists. Where this
is not possible, the BBC and CTI shall discuss and agree the most
appropriate course of action to be taken for a resumption of the
Services and/or the provision of a temporary service and the
timescale within which such action is to be taken. If, having agreed
a timescale for the resumption of any Service, CTI shall fail to
comply with that timescale, not having agreed any extension of time
where the failure is not itself caused by another Force Majeure
Event, then the BBC shall be entitled to serve notice on CTI
requiring that:
(i) in the case of a Force Majeure Event affecting the DTT Transmission
Services, unless the DTT Transmission Services are resumed within a
period of seven working days for an Operational Non-Priority Station
and three working days for an Operational Priority Station from the
date of delivery of the notice, then the BBC shall be entitled to
receive Service Credits for that Station from the end of the seven-
day or three-day period referred to above to the date on which the
Services are resumed or a temporary service provided;
(ii) in the case of a Force Majeure Event affecting the rollout of any
Station, unless that Station is Accepted by the agreed revised Launch
Date for that Station, CTI will be liable to pay liquidated damages
in respect of that Station calculated in accordance with Clause 16.6.
12.5.3 To the extent that any Force Majeure Event relates to the provision
of either the Emergency Services or compliance by CTI with a
direction under Section 94 of the Telecoms Act, the provisions of
this Agreement relating to Emergency Services shall prevail and
Clause 12.5 shall not take effect if it would only have taken effect
by reason of events giving rise to the need for CTI to perform the
Emergency Services or in accordance with the relevant direction.
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12.5.4 Subject to Clause 12.5.2, neither party shall be liable to the other
for any failure to perform its obligations (excluding payment
obligations) under this Agreement where that failure is caused by a
Force Majeure Event.
12.6 TERMINATION FOR BREACH
12.6.1 If a party is in material breach of this Agreement (the "BREACHING
PARTY"), the other party may give it a written notice requiring the
breach to be remedied within 45 days.
12.6.2 If the breach is material or could amount to a material breach if not
remedied and, in either case, is remediable, and the Breaching Party
fails to remedy the breach within the time specified in the notice
requesting the breach to be remedied, then the non breaching party
may terminate this Agreement immediately or on such longer period of
notice as is specified in the notice of termination.
12.7 TERMINATION ON CHANGE OF CONTROL
12.7.1 The BBC will be entitled to terminate this Agreement immediately by
notice or on such period of notice as is specified in the notice of
termination if there is a Change of Control of a Relevant Company
other than on:
(i) a transfer of Shares between an existing shareholder in a Relevant
Company and an Associate of such shareholder; or
(ii) the creation of a mortgage, charge, encumbrance or security interest
over or in respect of any Shares of a Relevant Company.
12.7.2 CTI shall notify the BBC as soon as possible after it or any Relevant
Company becomes aware of any Change of Control of a Relevant Company,
or of any potential Change of Control or other circumstances which
would or might give rise to a termination right under this Clause
12.7.
12.7.3 The BBC agrees that it will only exercise its rights to terminate
pursuant to a Change of Control which arises in the circumstances set
out in paragraph (i)(a) or (iii) of the definition of "Change of
Control" set out in clause 12.7.4 if it reasonably considers that the
event giving rise to such right is contrary to the BBC's corporate
interests and/or those of Her Majesty's Government. The BBC agrees
that a notice of termination (regardless of the period of notice set
out in such notice), and whatever the circumstances giving rise to
that right, will be given by the BBC within three months of
52
receipt of notice of the relevant event and may not be given
thereafter. The BBC agrees to consider in good faith any requests for
the sale of the Relevant Company's Shares or any other arrangement
which might otherwise give rise to a termination right having regard
to the reasonable interests of the BBC and each Relevant Company and
those of Her Majesty's Government.
12.7.4 For the purposes of this Clause 12.7:
"ACTING IN CONCERT" has the meaning given to it in The City Code on Take
overs and Mergers;
"ASSOCIATE" means, in relation to a person, (a) a subsidiary or holding
company (as those terms are defined by Section 736 of the Companies Act
1985) of that person or a subsidiary of that person's holding company (a
"GROUP COMPANY"); (b) any limited partnership, the general partner of
which is a Group Company; (c) any limited partner in any limited
partnership, the general partner of which is a Group Company; (d) any
fund managed or advised by a Group Company; (e) any employee of such
person or any Group Company; or (f) who is a partnership, that
partnership's constituent partners.
"CONTROL" has the meaning given to it in Schedule 2, Part I paragraph
(3)(b) of the Broadcasting Xxx 0000, as amended by the 1996 Act; and
"Controlled" has a corresponding meaning;
"CHANGE OF CONTROL" means in relation to a Relevant Company:
(i) before a Listing, where a Third Party acquires, obtains in any
manner or in any circumstances comes to hold:
(a) Control of a Relevant Company;
(b) a Relevant Interest in a Relevant Company's Share capital; or
(c) such Interest in the Relevant Company's Share capital as
would, when taken with that already held by such Third Party
or by any Associate of, or person Controlled by or Acting in
Concert with, such Third Party, amount to a Relevant
Interest;
(ii) on or after a Listing, where a Third Party acquires, obtains in
any manner or in any circumstances comes to hold:
53
(a) a Relevant interest in a Relevant Company's Share capital; or
(b) such Interest in the Relevant Company's Share capital as
would, when taken with that already held by such Third Party
or by any Associate of, or person Controlled by or Acting in
Concert with, such Third Party, amount to a Relevant Interest;
(iii) on or after a Listing, a Third Party, by itself or together with
any persons Acting in Concert with it, obtaining in any manner or
in any circumstances coming to hold an Interest in 25 per cent or
more of the Shares of a Relevant Company and Control of the
Relevant Company,
PROVIDED THAT any scheme of arrangement for the purpose of
reconstruction or reorganisation of the assets of a Relevant Company
shall not, without further alteration in Control, constitute a Change of
Control;
"INTEREST" means, in relation to the Shares of a Relevant Company, any
legal or beneficial interest in them, or any right or power (whether
conditional or unconditional and whether legally enforceable or otherwise)
to exercise control (directly or indirectly) over the disposal of those
Shares or over the manner of exercise of any right to vote in a general
meeting attached to such Shares;
"LISTING" means the first listing of any of the Shares of any Relevant
Company on any stock exchange or public dealings facility and "listed"
shall be construed accordingly;
"RELEVANT COMPANY" means CTI or any holding company (as that term is
defined by Section 736 of the Companies Act 1985) of CTI;
"RELEVANT INTEREST" means, in relation to any Shares of a Relevant Company
an Interest in 30 per cent or more of the Relevant Company's Shares;
"RELEVANT PERSON" means, in relation to a Relevant Company, any person or
any one of two or more persons Acting in Concert who have Control of the
Relevant Company;
"SHARES" means, in relation to a Relevant Company, the shares in the
relevant share capital (as that expression is defined in Section 198(2) of
the Companies Act 1985) of that Relevant Company and shall include any
shares which have been alloted (whether conditionally or unconditionally);
and
54
"THIRD PARTY" means any person other than a Relevant Person or an Associate
of a Relevant Person.
13 CONSEQUENCES OF EXPIRATION OR TERMINATION
13.1 ACCRUED RIGHTS
Expiration or termination for whatever reason of this Agreement will not
affect any rights of the parties which have accrued prior to the expiration
or termination including, without limitation, any right to claim damages
for breach of this Agreement.
13.2 RIGHT TO PURCHASE DEDICATED EQUIPMENT
The provisions of this Clause 13.2 shall apply mainly in the event of
termination of this Agreement by the BBC for breach by CTI pursuant to
Clause 12.6 hereof.
13.2.1 For purposes of this Clause 13-2:
(i) "DEDICATED EQUIPMENT" means the CTI Equipment and Third Party
Equipment.
(ii) "CTI EQUIPMENT" means any equipment owned by CTI and used by
CTI solely for purposes of providing the Services to the BBC.
(iii) "THIRD PARTY EQUIPMENT" means any equipment used (but not
owned) by CTI solely for the purposes of providing the Services
to the BBC.
(iv) "FAIR MARKET VALUE" means the market value for the Dedicated
Equipment. If the parties are unable to agree as to Fair Market
Value within what either party considers is a reasonable
timeframe, either party may refer the issue to an expert
accountant appointed by the Chairman of the Chartered Institute
of Accountants for adjudication and, subject to any manifest
error on the face of the determination, the parties will comply
with the terms of such determination and treat it as final. The
parties will bear their own costs of the adjudication and one
half of the costs of the adjudicator.
(v) "NET BOOK VALUE" means the value recorded in CTI's financial
accounts for the Dedicated Equipment in accordance with UK
GAAP.
13.2.2 At least 90 days prior to the expiration or termination of this
Agreement or, where this Agreement is terminated on a shorter
period of notice, within 30 days of receipt of a
55
notice of termination of this Agreement, CTI must, if requested
to do so by the BBC, provide the BBC with a list which:
(i) identifies the nature and location of the Dedicated Equipment;
(ii) gives the Net Book Value of the Dedicated Equipment at the date
on which the list is given;
(iii) identifies what rights CTI has in relation to the Dedicated
Equipment; and
(iv) identifies circumstances where transfer of such rights as CTI
has in the Third Party Dedicated Equipment to the BBC would
require the consent of a third party.
13.2.3 Within 90 days of receipt of a list under Clause 13.2.2, the
BBC must advise CTI whether or not it wishes to acquire some or
all of the Dedicated Equipment. If the BBC does not respond
within 90 days of receipt of such list, then it will be deemed
to have elected not to purchase any of the Dedicated Equipment.
If the BBC does wish to acquire some or all of the Dedicated
Equipment, the following provisions will apply:
(i) Where all of CTI's rights in respect of the Dedicated Equipment
may be assigned or transferred to the BBC without the consent
of any other person, CTI must assign or transfer such rights to
the BBC if requested to do so by the BBC;
(ii) Where any of CTI's rights in respect of the Third Party
Equipment cannot be assigned or transferred to the BBC without
the consent of another person, CTI must if requested to do so
by the BBC use its reasonable endeavors to obtain, at such cost
as the parties agree to be reasonable in the circumstances, all
such consents and if such consents are obtained, CTI must then
assign or transfer such rights to the BBC.
(iii) The price payable by the BBC to CTI for the Dedicated Equipment
shall be the Fair Market Value. The BBC shall initially pay CTI
the Net Book Value in respect of the CTI Equipment and its fair
estimate of the Fair Market Value of the Third Party Equipment
(the "PROVISIONAL PAYMENT"). On making the Provisional Payment
to CTI the BBC shall be entitled to use the Dedicated Equipment
as if title had passed to it. Upon Fair Market Value being
determined by agreement or adjudication, as the case may be,
compensating payment shall be made within 30 days of this
56
determination as necessary between CTI and the BBC to reflect the
difference between the Provisional Payment and determined Fair
Market Value.
(iv) Title to any Dedicated Equipment the ownership of which is
transferred or assigned under this Clause 13.2 will transfer on
payment of the compensating amount payable under Clause
13.2.3(iii).
(v) CTI must deliver to the BBC such technical or user documentation
relating to any Dedicated Equipment where the rights in that
Dedicated Equipment are transferred or assigned to the BBC under
this Clause 13.2.
(vi) The Dedicated Equipment will be sold "as is where is" without the
benefit of any warranties or conditions whatsoever whether
express or implied, other than the benefit of any warranties or
conditions which are held by CTI and provided by a third party
and which remain in force as at the date of the list, the benefit
of which CTI will use reasonable endeavors to assign to the BBC.
(vii) CTI will, at the BBC's expense, detach and deliver the Dedicated
Equipment as soon as reasonably practicable after title has
passed.
13.3 HANDOVER AND EXIT MANAGEMENT
13.3.1 If requested to do so by the BBC, CTI will continue to provide
the Services to the BBC for a period of up to 6 months after
expiration or termination of this Agreement on the terms of this
Agreement, to allow the BBC to hand over responsibility of the
Services to the BBC or a Successor Operator. During that 6 month
period, the Charges payable by the BBC will be the Charges paid
for the previous 6 months adjusted by reference to the RPI for
the previous financial year.
13.3.2 During the period prior to and for six months following
expiration or termination of this Agreement CTI must at no cost
to the BBC:
(i) co-operate fully with the BBC or a Successor Operator and use
reasonable endeavors to ensure a seamless transition in passing
responsibility for the Services to the BBC or a Successor
Operator;
(ii) respond to reasonable questions and requests for assistance from
the BBC or a Successor Operator in relation to the Services; and
57
(iii) provide reasonable assistance to the BBC or a Successor Operator
to enable them to obtain access to Stations and masts.
13.4 DETAILS OF EMPLOYEES
Six months before the termination or assignment of this Agreement, or if
this Agreement is terminated without notice for any reason as soon as
reasonably practicable, but in either case if requested to do so by the BBC,
CTI will provide, and will procure that any Relevant Employers will provide,
to the BBC, or at the BBC's request to the Successor Operator, the following
particulars of the Employees employed as at that date to the extent
permitted by law:
13.4.1 name, sex and the date on which continuity of employment began for
each Employee for statutory purposes;
13.4.2 the terms and conditions of employment of each such Employee;
13.4.3 all payments, benefits or changes to terms and conditions of
employment promised to any such Employee;
together with particulars of:
13.4.4 dismissals of any other Employees or terminations of employment
effected within 12 months of the Transfer Date;
13.4.5 all agreements or arrangements entered into in relation to any such
Employee between CTI or any other Relevant Employer and any trade
union or association of trade unions or organisation or body of
employees including elected representatives; and
13.4.6 all strikes or other material industrial action taken by any such
Employee within 12 months of the Transfer Date.
13.5 TRANSFER REGULATIONS
13.5.1 On termination of this Agreement the Transfer Regulations may
transfer the Relevant Employees to the BBC or the Successor
Operator. If the Transfer Regulations have effect the following
provisions shall apply:
(i) the contract of employment of each of the Relevant Employees (save
insofar as such contract relates to any occupational pension scheme)
shall be transferred to the BBC or, as the case may be, the
Successor Operator with effect from the Transfer Date which shall be
the "time of transfer" under the Transfer Regulations;
58
(ii) CTI shall perform and discharge all its obligations in respect of
all the Relevant Employees for its own account up to and including
the Transfer Date including, without limitation, discharging all
wages and salaries of the Relevant Employees, all employer's
contributions to any relevant occupational pension scheme and all
other costs and expenses related to their employment (including,
without limitation, any taxation, accrued holiday pay, accrued
bonus, commission or other sums payable in respect of service
prior to the close of business on the Transfer Date) and shall
indemnify the BBC or the Successor Operator, as the case may be,
and keep the BBC or the Successor Operator indemnified against
each and every action, proceeding, liability (including, without
limitation, any taxation liability directly related to the
Relevant Employees), cost, claim, expense (including, without
limitation, reasonable legal fees), or demand arising from CTI's
failure so to perform and discharge. The BBC shall, or, as the
case may be, shall procure that the Successor Operator shall
perform and discharge all such obligations from the Transfer Date;
(iii) CTI shall indemnity (on an after-tax basis) the BBC or the
Successor Operator, as the case may be, and keep the BBC or the
Successor Operator so indemnified against each and every action,
proceeding, cost, claim, liability (including, without limitation,
any taxation liability directly related to the Relevant
Employees), expense (including, without limitation, reasonable
legal fees) or demand which relates to or arises out of any act or
omission by CTI or any other event or occurrence prior to the
Transfer Date and which the BBC or the Successor Operator, as the
case may be, may incur in relation to any contract of employment
or collective agreement concerning one or more of the Relevant
Employees pursuant to the provisions of the Transfer Regulations
or otherwise including, without limitation, any such matter
relating to or arising out of:
(a) CTI's rights, powers, duties and/or liabilities (including,
without limitation, any taxation) under or by virtue of any
such contract of employment or collective agreement, which
rights, powers, duties and/or liabilities (as the case may
be) are or will be transferred to the BBC or the Successor
Operator in accordance with the Transfer Regulations; or
59
(b) anything done or omitted before the Transfer Date by or in
relation to CTI in respect of any such contract of employment
or collective agreement or any Relevant Employee, which is
deemed by the Transfer Regulations to have been done or
omitted by or in relation to the BBC or the Successor
Operator;
(iv) if any contract of employment or collective agreement which is not
in accordance with Clause 13.4 above disclosed in writing to the
BBC, or at its request to the Successor Operator, by CTI prior to
the Transfer Date shall have effect as if originally made between
the BBC or the Successor Operator and any employee ("UNDISCLOSED
EMPLOYEE") or a trade union as a result of the provisions of the
Transfer Regulations (without prejudice to any other right or
remedy which may be available to the BBC or the Successor
Operator):
(a) the BBC or the Successor Operator may, within 3 months of the
Transfer Date upon becoming aware of the application of the
Transfer Regulations to any such contract of employment or
collective agreement, terminate such contract or agreement
forthwith, and CTI shall indemnify the BBC or the Successor
Operator (on an after-tax basis) in respect of any Undisclosed
Employee so dismissed on the same terms mutatis mutandis as CTI
has indemnified the BBC or the Successor Operator in respect of a
Relevant Employee pursuant to the terms of Clause 13.5.1 (ii) and
13.5.1 (iii); and
(b) CTI shall indemnify the BBC or the Successor Operator (on an
after-tax basis) against each and every action, proceeding, cost,
claim, liability (including, without limitation, reasonable legal
fees) or demand relating to or arising out of such termination and
reimburse the BBC or the Successor Operator for all costs and
expenses (including, without limitation, any taxation) incurred in
employing such employee in respect of his employment following the
Transfer Date;
(v) CTI shall indemnify (on an after tax-basis) the BBC or the
Successor Operator and keep the BBC or the Successor Operator so
indemnified against each and every action, proceeding, cost,
claim, liability (including, without limitation, any taxation),
expense (including, without limitation, reasonable legal fees) or
demand which relates to or arises out of any dismissal (including,
without limitation, constructive dismissal) by CTI of any employee
(not being a Relevant Employee) which the BBC
60
or the Successor Operator may incur pursuant to the provisions of
the Transfer Regulations;
(vi) If CTI assigns this Agreement to the CTI Assignee, or sub-
contracts its obligations under this Agreement in respect of all
or part of the Services to any firm, person or company (the "CTI
SUB-CONTRACTOR"), CTI shall procure that the CTI Assignee or, as
the case may be, the CTI Sub-Contractor will indemnify the BBC
and the Successor Operator in the same terms, mutatis mutandis,
as CTI has indemnified the BBC and the Successor Operator in this
Clause 13.5.1.
13.5.2 In Clause 13.5.1 the undertakings and indemnities given by CTI to
the Successor Operator shall be given to the BBC for itself and
as trustee for any BBC Assignee or the Successor Operator.
13.6 REDUNDANCY COSTS
13.6.1 In this clause "REDUNDANCY COSTS" means notice pay, statutory
redundancy pay, contractual redundancy pay and any Losses
incurred by the BBC or a Successor Operator in connection with
any claims arising out of or in connection with the dismissal of
any Relevant Employee pursuant to Clause 13.6.2.
13.6.2 The CTI will reimburse to the BBC or, as the case may be, a
Successor Operator the Redundancy Costs incurred by the BBC or
such Successor Operator in connection with the dismissal by
reason of redundancy, reconstruction or reorganisation of any
Relevant Employee within twelve months of the expiry or earlier
termination of this Agreement and will make such reimbursement
within 28 days of being notified of such Redundancy Costs. The
undertakings given in this Clause 13.6.2 to the Successor
Operator shall be given to the BBC for itself and as trustee for
the Successor Operator.
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PART G - LIABILITY, WARRANTIES AND INSURANCE
14 WARRANTIES AND UNDERTAKINGS
14.1 CTI hereby warrants and undertakes that it has applied for, and the
Radiocommunications Agency has agreed to grant, conditional only on
execution of this Agreement, or will grant by the time required by
law, and will hold during the Term, all necessary licences and
consents under the Telecoms Act and the WTA and, subject to Clause
4.4, all consents and clearances of whatever nature as are required to
enable it to perform its obligations under this Agreement (other than
frequency allocation and clearances which it is the BBC's obligation
to obtain) and shall comply with the terms of all such licences,
clearances and consents and shall not do anything or omit to do
anything which would cause such licences, clearances or consents to be
revoked or not renewed.
14.2 The BBC shall obtain at its own expense and hold during the Term all
necessary licences and consents under the Charter and DNH Agreement,
the Broadcasting Act, the 1996 Act, the WTA and the Telecoms Act and
all consents, clearances and other rights of whatsoever nature
including, without limitation, any necessary licence and consent which
the BBC may require in relation to the BBC Multiplex which in each
case are required to permit the BBC to perform its obligations under
this Agreement and otherwise and shall do all things necessary to
comply with the terms of such licences, clearances and consents and
shall not do anything or omit to do anything which would cause such
licences, clearances and consents to be revoked or not renewed.
14.3 CTI shall do all things reasonably necessary to renew any leases or
licences for the sites on which the Stations are located, so that they
subsist for the duration of this Agreement or any agreed renewal of
the same.
15 INSURANCE
15.1 Both parties must maintain insurance against any loss, damages, claims
or actions arising from:
15.1.1 personal injury or death;
15.1.2 public liability; and/or
15.1.3 any other liability for which either is required by law to
insure,
62
arising out of the performance of this Agreement.
15.2 CTI must maintain insurance cover adequate to cover the risks which it
is likely to incur in relation to the subject matter of this
Agreement, with a minimum of:
15.2.1 primary public and product liability insurance in a form
reasonably acceptable to the BBC providing for payment of a sum
up to (Pounds)50 million for any one occurrence (or in the annual
aggregate for product liability) and, in the case of third party
property damage arising out of the use of private vehicles,
unlimited cover and, in the case of third party property damage,
arising out of the use of commercial vehicles, (Pounds)5 million
in respect of one occurrence;
15.2.2 employer's liability insurance sufficient to meet its statutory
requirements and sufficient to cover any liabilities to past or
present employees;
15.2.3 all risks or loss or damage to property and business interruption
insurance in a form reasonably acceptable to the BBC in respect
of each of the Stations, the CTI Sites and all equipment used to
provide the Services covering the full reinstatement value of all
such assets and the reasonable cost of any replacement
transmission services from the Stations or any other stations
used to supply any part of the DTT Transmission Services; and
15.2.4 professional indemnity insurance of at least (Pounds)5 million
per year, commensurate with the nature of the risks undertaken in
that year.
15.3 Where requested by the BBC, CTI agrees to provide the BBC with a copy
of the relevant policy or policies or evidence of such insurance and
its material terms referred to in this Clause 15 which shall be
treated as Confidential Information belonging to CTI. CTI will also
notify the BBC of any substantive change to the insurance programme
maintained by it and referred to in this Clause 15 for the risks
covered.
15.4 Where CTI engages a sub-contractor, it shall ensure that its insurance
includes cover for its liabilities in respect of the acts and
omissions of its sub-contractors or that its sub-contractors have
their own insurance with appropriate cover in the light of the work to
be undertaken by the sub-contractors.
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16 LIABILITY AND WARRANTIES
16.1 For purposes of this Clause 16, "CONTRACTS" means this Agreement, any
Site Sharing Agreement entered into pursuant to this Agreement and any
other agreement between the parties relating to the subject matter of
this Agreement.
16.2 PERSONAL INJURY AND DAMAGE TO PROPERTY
16.2.1 Each of the BBC and CTI shall indemnify the other on an after-
tax basis against all claims or actions brought against the
other by any third party relating to:
(i) personal injury; or
(ii) loss of, or damage to, property; or
(iii) Harmful Interference caused to analogue or digital broadcasts,
excepting any such claims made by viewers;
caused as a result of any breach of this Agreement or any wilful or
negligent act or wilful or negligent omission by the party from whom
indemnification is sought. Without limiting the generality of this
Clause 16.2.1, CTI will indemnify the BBC on an after-tax basis
against any claims made against the BBC by any party as a result of
damage caused by CTI to the property of that party in installing,
maintaining or operating transmitters for provision of the DTT
Transmission Services.
16.2.2 Each of the BBC and CTI will indemnify the other on an after-tax
basis against any loss incurred by the relevant party resulting
from damage to that party's property or injury to its employees
or the employees of its agents or sub-contractors arising out of
any breach of any of its obligations, warranties or undertakings
contained in any of the Contracts or any other agreements
between the parties relating to the provision of the Services or
any other negligent or wilful act or omission of the party from
whom an indemnity is sought.
16.2.3 The party from whom indemnification is sought shall have the
right to conduct any proceedings brought by a third party
against the other party or to settle any such proceedings
subject to reimbursing the other party any costs of such
proceedings and any damages, costs and expenses payable by the
indemnified party arising out of those proceedings. Both parties
will notify the other as soon as possible of the existence of a
64
claim which is reasonably likely to give rise to a claim for
indemnification under this Clause 16.2.
16.2.4 Neither party excludes or restricts liability for death or
personal injury resulting from its own negligence or from
liability arising under the Health and Safety at Work Xxx 0000 or
any regulations made pursuant to that Act.
16.3 THIRD PARTY ACTS
Neither CTI nor the BBC shall be held responsible for the consequences of
any act or omission or misconduct of any third party, unless:
16.3.1 such third parties are in the employment of or providing sub-
contracted services to either CTI or the BBC at the time the
lncident takes place; or
16.3.2 the party claimed against has recovered damages in respect of
such act, omission or misconduct directly from the relevant third
party or otherwise where it has recovered insurance (and in each
such case to the extent of such recovery or insurance claim)
provided that where such party is entitled to claim damages
and/or recover under such insurance policy it shall use all
reasonable endeavours to do so as soon as reasonably practicable.
16.4 BBC LIABILITY
16.4.1 The BBC shall not be liable, whether in contract, tort,
negligence, breach of statutory duty or otherwise, to CTI for
loss of profits other than any element of profit comprised in the
Charges or for any indirect, special, incidental or consequential
loss whatsoever arising out of its performance of or failure to
perform any of the Contracts or otherwise.
16.4.2 The BBC's liability for all matters under the Contracts, other
than for payment of the Charges under this Agreement or for
payment of any of the termination sums provided for in Clause
12.2 or for any sums payable in respect of the Dedicated
Equipment or in respect of the repudiatory breach of any of the
Contracts or in respect of the content indemnity contained in
Clause 4.2.3, shall be limited to [*] in any Year or, if greater,
the amount recovered by the BBC in respect of and to the extent
attributable to such loss pursuant to any insurance policy
maintained by the BBC.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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16.5 CTI LIABILITY
16.5.1 CTI's total aggregate liability in respect of all matters under
or arising out of the Contracts in any one Year, including in
relation to the payment of liquidated damages and/or Service
Credits, will be limited to [*].
16.5.2 CTI shall not be liable, whether in contract, tort, negligence,
breach of statutory duty or otherwise, to the BBC for loss of
profits or for any indirect, special, incidental or consequential
loss whatsoever whether incurred by the BBC or a third party
arising out of its performance of or failure to perform any of
its obligations under the Contracts or otherwise .
16.5.3 For the avoidance of doubt, CTI is liable to pay to the BBC any
liquidated damages and/or Service Credits payable in accordance
with this Agreement.
16.5.4 This Agreement and the Site Sharing Agreement sets out the full
extent of each party's obligations and liabilities relating to
the Services whether in contract, tort, negligence, breach of
statutory duty or otherwise. In particular, there are no
conditions, warranties or other terms, express or implied, as to
satisfactory quality, fitness for purpose or of any other kind
whatsoever which are binding on CTI except as specifically set
out in this Agreement. Any other condition, warranty or other
term relating to the provision of the Services or the sale of the
Dedicated Equipment which might otherwise have been implied into
this Agreement by statute, common law or otherwise is hereby
excluded.
16.6 DELAY
16.6.1 If a Phase 1 Station is not Accepted by the Phase 1 Launch Date
for that Station, then CTI must pay to the BBC liquidated damages
to be calculated in accordance with Paragraph 5 of Schedule 2,
subject to Clauses 2.5.2 and 16.6.4.
16.6.2 CTI acknowledges that the liquidated damages payable under Clause
16.6.1 are a reasonable pre-estimate of the damages that the BBC
may sustain if there is any failure to comply with the terms of
this Agreement.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
66
16.6.3 The BBC's right to claim liquidated damages under Clause 16.6
shall be without prejudice to any other right which the BBC may
have.
16.6.4 CTI's total aggregate liability in respect of all claims by the
BBC for payment of liquidated damages under this Agreement shall
be limited to the sum of [*].
16.6.5 To the extent that any delay in the Acceptance of any Station is
due to a new-technology problem which does not arise through any
fault of CTI and is beyond CTI's reasonable control, the BBC will
waive its right to the payment of liquidated damages for the
period beginning on the date on which the BBC and CTI have agreed
in good faith a process to resolve the problem and ending on the
date that CTI has achieved a workable solution to such a problem,
provided always that CTI has at all times used all reasonable
efforts to achieve such solution as soon as is reasonably
possible.
16.7 WARRANTIES
16.7.1 CTI warrants and represents that:
(i) it has full power and authority to execute, deliver and perform
its obligations under this Agreement;
(ii) the Services will be of satisfactory quality and fit for the
purpose for which they are supplied and without limiting the
generality of the foregoing, will comply with Schedule 5;
(iii) all work performed under this Agreement will be performed in a
proper and workmanlike manner and with due skill and care;
(iv) it has and will have throughout the term of this Agreement the
necessary skills, expertise and resources to perform its
obligations under this Agreement;
(v) all personnel employed by CTI in the performance of its
obligations under this Agreement will be appropriately trained
and experienced;
(vi) it is not currently a party to and will not enter into any
agreements or arrangements with third parties the terms of
which prevent it entering into this Agreement or would impede
the substantial performance of its obligations under this
Agreement; and
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
67
(vii) it has disclosed no Confidential Information as described in
Clause 19.1 to any third party in breach of any obligations of
confidentiality.
16.7.2 The BBC warrants and represents that:
(i) it has full power and authority to execute, deliver and perform
its obligations under this Agreement; and
(ii) it has disclosed no Confidential Information as described in
Clause 19.1 to any third party in breach of any obligations of
confidentiality.
16.7.3 There are no conditions or warranties, express or implied,
binding on CTI or the BBC except those set out in this
Agreement. Any condition or warranty which might have been
implied into this Agreement by statute, common law or otherwise
is hereby excluded.
68
PART H - GENERAL
17 ASSIGNMENT
17.1 This Agreement is personal to the pates hereto and they shall not
assign, transfer, charge or deal in any other manner with this
Agreement other than as expressly set out below except that CTI shall
be entitled to assign its rights to payments under this Agreement by
way of security to any person providing finance to it or its holding
company(ies).
17.2 Each of CTI and the BBC shall be entitled to transfer this Agreement
to any of its wholly-owned subsidiaries provided that:
17.2.1 each party procures that the transferee is bound by a direct
covenant with the other party to observe all the terms of this
Agreement and the covenants and obligations by the transferor
contained in this Agreement; and
17.2.2 if any transferee ceases to be a wholly-owned subsidiary of
either the BBC or CTI, as the case may be, this Agreement will be
transferred back to CTI or the BBC, or to one of their wholly-
owned subsidiaries.
18 SUB-CONTRACTING
CTI may sub-contract any of its obligations under this Agreement. CTI will
not be relieved of any of its liabilities or obligations under this
Agreement by entering into sub-contracts and CTI will be liable to the BBC
for the acts, defaults and neglects of any sub-contractor or any employee
or agent of the sub-contractor as fully as if they were the acts, defaults
or neglects of CTI or the employees or agents of CTI.
19 INFORMATION AND CONFIDENTIALITY
19.1 Subject to the terms of any other agreement between the parties, each
party agrees and undertakes that during the term of this Agreement,
and thereafter, it will keep confidential and will not use for its own
purposes or, without the prior written consent of the other, disclose
to any third party the terms of this Agreement or any information of a
confidential nature which is supplied to it under this Agreement or of
which it becomes aware in the performance of this Agreement unless:
69
19.1.1 such information is required to be disclosed to CTI's bankers,
CTI's holding company and any shareholders of its holding company
(subject in each case to such companies or individuals agreeing
that the information shall be confidential in terms substantially
similar to this Clause 19.1); or
19.1.2 such information is public knowledge, or subsequently becomes
public knowledge, other than by breach of this Agreement; or
19.1.3 such information subsequently comes lawfully into the possession
of the party in question from a third party; or
19.1.4 the disclosure of such information is required by any court of
competent jurisdiction or any regulatory authority, including any
recognized stock exchange or any taxation authority.
19.2 To the extent that it is necessary to disclose confidential
information pursuant to the provisions of this Clause 19 or otherwise
as necessary to implement the provisions of this Agreement, either
party may disclose any confidential information concerning this
Agreement to such of its employees or, in the case of the BBC, to such
of the BBC's nominated contractor(s) as may be reasonably necessary on
a "need-to-know basis", provided that before any such disclosure such
party shall make such persons aware of its obligations of
confidentiality under this Agreement and shall at all times procure
compliance by such persons therewith.
19.3 The obligations of confidentiality hereunder shall not apply to
prevent the supply of confidential information to the Department of
Culture, Media and Sport, the Home Office, the Cabinet Office, the
Foreign and Commonwealth Office, the Comptroller and Auditor General,
the Office of Fair Trading, the Radiocommunications Agency, the
Department for Trade and Industry, the Independent Television
Commission, the Office of Telecommunications or any other regulatory
body.
20 INTELLECTUAL PROPERTY RIGHTS
20.1 If in the course of the provision of the Services any material is
created by CTI which is protected by copyright or other intellectual
property rights, all legal and beneficial interests in those
intellectual property rights will, as between the BBC and CTI, be
owned by CTI. The BBC will only have such rights as are set out in
this Clause 20 in relation to such materials.
70
20.2 CTI warrants and undertakes to the BBC that the use by the BBC of the
Services and the Transmission Network in accordance with the terms of
this Agreement will not infringe the intellectual property rights of
any party.
20.3 CTI will indemnify the BBC on an after-tax basis against any loss,
damage, or expenses (including legal fees on an indemnity basis) which
the BBC may suffer or incur as a result of any claim that the
Services, the Transmission Network or any component of the
Transmission Network infringes the intellectual property rights of any
third party.
20.4 Each party must notify the other as soon as reasonably practicable:
20.4.1 after becoming aware of any infringement or suspected
infringement by the Services, the Transmission Network or any
component of the Transmission Network of the intellectual
property rights of any third Party; and
20.4.2 of any claim being made of the type described in Clause 20.3.
20.5 The BBC must not make any admission relating to a claim under Clause
20.3, and must give CTI all reasonable assistance (including providing
all relevant information) in respect of such a claim at CTI's cost.
The BBC will take all such action as CTI may reasonably request to
avoid, dispute, resist, appeal, compromise or contest any such claim
at CTI's cost.
21 EMPLOYEES
21.1 TERMS OF EMPLOYMENT OF EXISTING EMPLOYEES
CTI shall not, and shall procure that any other Relevant Employer shall
not, without the prior consent of the BBC (which shall not be unreasonably
withheld or delayed), vary, or purport or promise to vary, the terms or
conditions (as amended from time to time) of employment of any Employee
(including a promise to make any additional payment or provide any
additional benefit) where such variation or addition:
21.1.1 takes effect at any time after either party has served a notice
terminating this Agreement unless it is in the ordinary course of
business and, when aggregated with any other variation or
addition which takes effect during such period, represents an
increase in the remuneration of the Employee of no more than the
percentage increase
71
in the level of the Average Earnings Index between the month for
which such index was last published at the time the variation or
addition is made or proposed and the month failing 12 months
before such month; or
21.1.2 first takes effect in whole or in part after this Agreement has
terminated; or
21.1.3 results in any such employment not being terminable by the
Relevant Employer within six months after this Agreement has
terminated; or
21.1.4 relates to a payment or the provision of a material benefit
triggered by termination of employment after this Agreement has
terminated; or
21.1.5 relates to the provision of a benefit (but excluding base salary)
which takes effect at any time after either party has served a
notice terminating this Agreement or which any such Employee will
or may have a contractual right to first receive after this
Agreement has terminated; or
21.1.6 prevents, restricts or hinders any such Employee after this
Agreement has terminated from working for the BBC or the
Successor Operator or from performing the duties such Employee
performed for CTI.
21.2 CHANGES IN NUMBERS AND TOTAL COST OF EMPLOYEES
Subject to and excluding any increase in the remuneration of Employees
permitted under Clause 21.1, CTI shall not, and shall procure that any
other Relevant Employer shall not, without the prior consent of the BBC
(which shall not be unreasonably withheld or delayed), increase or decrease
at any time after either party has served a notice terminating this
Agreement the number of Employees either such that the total number of
Employees or the total cost per annum to CTI and each other Relevant
Employer of employing all Employees is increased or such that the total
number of Employees is decreased, in each case, by more than 5 per cent
during any period of 12 months.
22 NOTICES
22.1 Any notice to be served by either party shall be in writing and shall
be sent to the following addresses:
72
CTI Chief Executive Officer
Castle Transmission International Ltd
Warwick Technology Xxxx
Xxxxxxx Xxxx
Xxxxxxxxx Xxxx
Xxxxxxx XX00 0XX
Fax No: 00000 000000
BBC Director of Policy and Planning
British Broadcasting Corporation
Xxxxxxxxxxxx Xxxxx
Xxxxxx X0X 0XX
Fax No: 0000 000 0000 Copy to: the BBC Representative
22.2 Any notice, invoice or other document which may be given by either
party under this Agreement will be deemed to have been duly given if
left at or sent by post (whether by letter or, where the parties agree
in writing, in any other form) or facsimile transmission to the
address set out above or to any other address notified to each other
in writing in accordance with this Clause as an address to which
notices, invoices and other documents may be sent. Any such
communication will be deemed to have been made to the other party:
22.2.1 if sent by hand, when delivered;
22.2.2 if sent by post, 72 hours after the envelope containing such
notice was posted; or
22.2.3 if sent by facsimile, when the transmission of the facsimile is
confirmed delivered complete, if delivered on a business day, or,
if not, at 9.30 a.m. (British Standard Time) on the next business
day.
For the purposes of this Clause, "BUSINESS DAY" means 9 a.m. to 5 p.m.
Monday to Friday every week of the year except for English public holidays.
It is further agreed that notices sent by facsimile will also be confirmed
by sending a signed copy by post, the copy to be posted within 24 hours of
sending the facsimile.
73
23 NON-SOLICITATION
Neither the BBC nor CTI shall offer employment or engage any employee of
the other involved in the provision of the Services whilst engaged, or
within 12 months of his ceasing to be engaged, in carrying out any
obligations under this Agreement without the prior written consent of the
other. This prohibition shall not prevent either party advertising for
staff in the national, local or industry press.
24 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no provision of this
Agreement which is of such a nature as to make this Agreement, or any
agreement or arrangement of which this Agreement forms part, liable to
registration under the Restrictive Trade Practices Act 1976 shall take
effect until the day after that on which particulars thereof have been duly
furnished to the Director General of Fair Trading.
25 WHOLE AGREEMENT
This Agreement supersedes any previous written or oral agreement between
the parties in relation to the matters dealt with in this Agreement and,
together with its Schedules, contains the whole agreement between the
parties relating to the subject matter of this Agreement at the date hereof
to the exclusion of any terms implied by law which may be excluded by
contract. Each of the parties acknowledges that it has not been induced to
enter into this Agreement by a representation, warranty or undertaking not
expressly incorporated into it. So far as permitted by law and except in
the case of fraud, the parties agree and acknowledge that their only rights
and remedies in relation to any representation, warranty or undertaking
made or given in connection with this Agreement shall be for breach of the
terms of this Agreement, to the exclusion of all other rights and remedies
(including those in tort or arising under statute).
26 VALUE ADDED TAX
26.1 All sums due to either party under this Agreement are exclusive of VAT
thereon, if any, which shall be charged in addition thereto in
accordance with the relevant law in force at the time of making the
relevant taxable supply and shall be payable by the paying party only
against receipt from the other of a valid VAT invoice in respect
thereof.
74
26.2 Where under this Agreement one party has agreed to reimburse or
indemnify the other in respect of any payment made or cost incurred by
the other, then the first party shall also reimburse any VAT paid by
the other which forms part of its payment or costs incurred to the
extent that such VAT is not available for credit for the other (or for
the representative member of the other's VAT group) under Sections 25
and 26 of the Value Added Tax Act 1994 (or any replacement or
equivalent provision).
27 PARENT COMPANY GUARANTEE
CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD will enter into a guarantee in
the form set out in Schedule 9.
28 JURISDICTION
This Agreement will be governed by and construed and interpreted in
accordance with English law, and the parties hereby submit to the non-
exclusive jurisdiction of the English courts.
IN WITNESS whereof this document has teen executed the day and year first
before written.
SIGNED for the BRITISH }
BROADCASTING CORPORATION by:
In the presence of:
SIGNED for CASTLE TRANSMISSION }
INTERNATIONAL LTD by:
In the presence of:
75
SCHEDULE 1
STATIONS
1. THE STATIONS
1.1. The Stations listed in this schedule constitute the "Stations" for
purposes of this Agreement.
2. TIMETABLE
2.1. Phase I Stations (including those at which test transmitters agree to be
installed), Phase 2 and Phase 3 Stations are identified in Table I below,
as is the Build Date and Phase I Launch Date or Phase 2 and Phase 3 Service
Date (as the case may be) for each Station and the Test Date for test
transmitters.
3. CHANNELS AND ERP
3.1. The BBC has been allocated multiplex 1 and the table shows the
corresponding channel and ERP for multiplex 1 for each Station.
NOTES AND ABBREVIATIONS IN TABLE 1
NOTE 1: ABBREVIATION
*XYZ * = "Must have at Launch".
NOTE 2: ITC PHASE
T = Test Transmitter
NOTE 3: BUILD & CONTRACTUAL SERVICE
Build and Contractual Service dates are defined in the main Contract.
. LDI Phase I Launch Date
. LD1 + [2] etc Launch Date plus [2] months
NOTE 4 : OPERATIONAL AND RESPONSE TARGET
See Schedule 8, for definition of Operational Priority and Response Target
stations.
NOTE 5: BBC, ITV, CH4 AND SDN REGIONS
-----------------------------------------------------------------------------------
Ang Anglia Meri Meridian SE SouthEast
Bord Border Mid Midlands Sth South
C/LWT Carlton/LWT N North SW South West
Central Central NE North East TTT Tyne Tees Television
ChTv Channel Television NI Northern Ireland U Ulster
E East Nth North UTV Ulster Television
EMid East Midlands NW North West W West
Gram Grampian R1 Region 1 WA West Anglia
Gran Granada R2 Region 2 XX Xxxx Country
HTVB HTV Bristol R3 Region 3 Wls Wales
HTVC HTV Cardiff S Scotland York Yorkshire
L London Scd Scotland - -
M Midlands Xxxx Scottish - -
-----------------------------------------------------------------------------------
NOTE 6: ITC DESIGNATION
. M = Main Station
. R = Relay
1
NOTE 7: BBC TRANSPORT STREAM SOURCE
BOLD = BBC Studio Centre
-------------------------------------------------------------------
BE BELFAST XX XXXXXXX NT NEWCASTLE
BM BIRMINGHAM LS LEEDS PY PLYMOUTH
BS BRISTOL MR MANCHESTER SO SOUTHAMPTON
CB CAMBRIDGE NC NORWICH TC TELEVISION CENTRE
CF CARDIFF NO NOTTINGHAM - -
-------------------------------------------------------------------
NOTE 8: HIGH LEVEL DESIGN CATEGORIES
-----------------------------------------------------------------------------
First Letter SI Insertion S = SI Insertion Station
-----------------------------------------------------------------------------
Second Transmitter Power H = High (greater than 66OW)
Letter L = Low (less than 66OW)
-----------------------------------------------------------------------------
Third Letter Combiner Type S = Single Ended
D = Duplicated
-----------------------------------------------------------------------------
Fourth Letter Antenna type A = Existing Analogue antenna++
N =-New Digital antenna
-----------------------------------------------------------------------------
++ The analogue antenna may be an existing C5 antenna at certain sites,
currently Craigkelly and Darvel.
2
TABLE 1
3
--------------------------------------------------------------------------------------------------------------------------------
DTT TRANSMISSION ROLL-OUT PRIORITY
--------------------------------------------------------------------------------------------------------------------------------
Coverage
UHF (000' ITC
STATION Abbreviation Channel proportional) Phase Operational
--------------------------------------------------------------------------------------------------------------------------------
KEYS: SEE NOTE [1] [2] [*] [*] [4]
--------------------------------------------------------------------------------------------------------------------------------
ABERDARE ABR 28 56 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
ANGUS AGU 68 434 2 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
BEACON HILL BNL 52 228 2 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
BELMONT *BMN* 30 2,019 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
BILSDALE BIL 34 1,483 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
BLACK HILL *BKH* 41 1,526 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
BLAENPLWYF BY 28 49 2 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
BLUEBELL HILL BBL 59 1,334 2 [*] [*] X
--------------------------------------------------------------------------------------------------------------------------------
BRESSAY BRQ 21 12 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
BRIERLEY HILL BOF 68 95 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
BRISTOL IC BSL 49 160 2 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
BRISTOL KW BSK 22 98 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
BROMSGROVE BGE 34 104 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX MTN. BRM 30 56 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
CALDBECK *CDK* 25 323 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
CARADON HILL *CNH* 34 309 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
CARMEL CRL 55 181 2 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
CHATTON CHN 40 242 3 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
CHESTERFIELD CD 34 255 3 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
CRAIGKELLY CGK 33 578 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
CRYSTAL PALACE *CP* 25 8,501 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
DARVEL DVL 22 512 2 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
XXXXX *DIV* 29 1,122 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
XXXXX XXX 68 547 2 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
DURRIS *DUS* 30 368 1 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
EITSHAL ETL 34 19 3 [*] [*]
--------------------------------------------------------------------------------------------------------------------------------
EMLEY MOOR *MLM* 52 2,099 1T [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
FENHAM FNH 30 304 2 [*] [*] x
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
DTT TRANSMISSION PRIORITY REGION SITE DESIGN
--------------------------------------------------------------------------------------------------------------------------------
CONTRACTUAL
RESPONSE ITC BBC GENERIC ERP
STATION TIME BBC CHANNEL 4 ITV SDN LANDLORD DESIGNATION STUDIO SOURCE (KW)
--------------------------------------------------------------------------------------------------------------------------------
KEYS: SEE NOTE [4] [5] [5] [5] [5] [6] [7] [8]
--------------------------------------------------------------------------------------------------------------------------------
ABERDARE Wls E HTV C R1 CT1 R CF _LSA 0.050
--------------------------------------------------------------------------------------------------------------------------------
ANGUS Scd S Gramf R3 NTL R GW _LDA 2.000
--------------------------------------------------------------------------------------------------------------------------------
BEACON XXXX XX E WC R2 NTL R PY _LDN 1.000
--------------------------------------------------------------------------------------------------------------------------------
BELMONT x Nth N YTV3 R2 NTL M LS SLDA 5.000
--------------------------------------------------------------------------------------------------------------------------------
BILSDALE x NE N TTT2 R2 CTI M NT SLDN 2.400
--------------------------------------------------------------------------------------------------------------------------------
BLACK HILL x Scd S Scot1 R3 NTL M GW SHDN 10.000
--------------------------------------------------------------------------------------------------------------------------------
BLAENPLWYF Wls N HTV C R1 CTI R CF _LDN 2.000
--------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX XXXX X XX X Xxxx0 X0 CTI M TC SLDN 3.000
--------------------------------------------------------------------------------------------------------------------------------
BRESSAY Scd S Gram1 R3 CTI R GW _LDA 1.000
--------------------------------------------------------------------------------------------------------------------------------
BRIERLEY HILL Mid M Cen1 R2 CTI R BM _LSA 0.050
--------------------------------------------------------------------------------------------------------------------------------
BRISTOL IC W E HTV B R2 CTI R BS _LSA 0.020
--------------------------------------------------------------------------------------------------------------------------------
BRISTOL KW W E HTV B R2 CTI R BS _LDN 0.010
--------------------------------------------------------------------------------------------------------------------------------
BROMSGROVE Mid M Cen1 R2 CTI R BM LSA 0.025
--------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX MTN. NI U UTV1 R2 CTI R BE _LDA 0.500
--------------------------------------------------------------------------------------------------------------------------------
CALDBECK NE S Bord1 R2 NTL M NT SHDN 5.000
--------------------------------------------------------------------------------------------------------------------------------
CARADON XXXX XX E WC R2 NTL M PY SHDN 4.000
--------------------------------------------------------------------------------------------------------------------------------
CARMEL Wls E HTV C R1 CTI R CF _LDA 2.500
--------------------------------------------------------------------------------------------------------------------------------
CHATTON NE N TTT1 R2 NTL R NT _LDA 3.000
--------------------------------------------------------------------------------------------------------------------------------
CHESTERFIELD Nth N YTV2 R2 NTL R LS _LSA 0.020
--------------------------------------------------------------------------------------------------------------------------------
CRAIGKELLY Scd S Scot1 R3 NTL M GW _LDN 1.000
--------------------------------------------------------------------------------------------------------------------------------
CRYSTAL PALACE x SE L C/LWT R2 CTI M TC SHDN 10.000
--------------------------------------------------------------------------------------------------------------------------------
DARVEL Scd S Scot1 R3 NTL R GW _LDA 2.000
--------------------------------------------------------------------------------------------------------------------------------
XXXXX x NI U UTV1 R2 CTI M BE SLDN 2.300
--------------------------------------------------------------------------------------------------------------------------------
DOVER SE E Meri3 R2 NTL M TC _LDN 1.000
--------------------------------------------------------------------------------------------------------------------------------
DURRIS Scd S Gram1 R3 NTL M GW SHDA 10.000
--------------------------------------------------------------------------------------------------------------------------------
EITSHAL Scd S Gram1 R3 CTI R GW _LDA 0.800
--------------------------------------------------------------------------------------------------------------------------------
EMLEY MOOR x Nth N YTV1 R2 NTL M LS SLDA 5.000
--------------------------------------------------------------------------------------------------------------------------------
FENHAM NE N TTT1 R2 CTI R NT _LSA 0.020
--------------------------------------------------------------------------------------------------------------------------------
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
------------------------------------------------------------------------------------------------------------------------------------
XXX Transmission Roll-Out Priority
-----------------------------------------------------------------------------------------------------------------------------------
Abbreviation UHF Coverage ITC Operational Contractual BBC
STATION Channel (000' Phase Responce
proportional) Time
-----------------------------------------------------------------------------------------------------------------------------------
XXXXXX FNT 34 203 3 [*] [*] Mid
-----------------------------------------------------------------------------------------------------------------------------------
FREMONT POINT FRP 38 tbd 1 [*] [*] SW
-----------------------------------------------------------------------------------------------------------------------------------
GUILDFORD GI 49 242 2 [*] [*] x SE
-----------------------------------------------------------------------------------------------------------------------------------
HANNINGTON HAN 50 628 1 [*] [*] x Sth
-----------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX XX 31 196 3 [*] [*] Sth
-----------------------------------------------------------------------------------------------------------------------------------
HEATHFIELD HJV 34 354 2 [*] [*] x Sth
-----------------------------------------------------------------------------------------------------------------------------------
HEMEL HEMPSTEAD HH 48 161 2 [*] [*] SE
-----------------------------------------------------------------------------------------------------------------------------------
HUNTSHAW CROSS HC 54 117 3 [*] [*] SW
-----------------------------------------------------------------------------------------------------------------------------------
IDLE IDL 45 163 2 [*] [*] Nth
-----------------------------------------------------------------------------------------------------------------------------------
KEELYLANG XXXX XXX 48 15 3 [*] [*] Scd
-----------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX XX 53 131 3 [*] [*] Nth
-----------------------------------------------------------------------------------------------------------------------------------
KILVEY HILL KVH 25 245 2 [*] [*] x Wls
-----------------------------------------------------------------------------------------------------------------------------------
KNOCK MORE XXX 00 00 0 [*] [*] Scd
-----------------------------------------------------------------------------------------------------------------------------------
LANCASTER LCR 28 225 2 [*] [*] x NW
-----------------------------------------------------------------------------------------------------------------------------------
LARK STOKE LKK 21 122 3 [*] [*] Mid
-----------------------------------------------------------------------------------------------------------------------------------
LLMAVADY LTS 67 146 2 [*] [*] NI
-----------------------------------------------------------------------------------------------------------------------------------
LIANDDONA LLA 67 187 2 [*] [*] Wls
-----------------------------------------------------------------------------------------------------------------------------------
MALVERN MVR 67 241 3 [*] [*] x Mid
-----------------------------------------------------------------------------------------------------------------------------------
MENDIP *MEN* 59 1,360 1 [*] [*] x x W
-----------------------------------------------------------------------------------------------------------------------------------
MIDHURST MH 56 1014 2 [*] [*] x x Sth
-----------------------------------------------------------------------------------------------------------------------------------
MOEL-Y-PARC XXX 00 000 0 [*] [*] x x Wls
-----------------------------------------------------------------------------------------------------------------------------------
NOTTINGHAM NOU 39 311 2 [*] [*] x EMid
-----------------------------------------------------------------------------------------------------------------------------------
OLIVERS MOUNT OMT 49 70 3 [*] [*] Nth
-----------------------------------------------------------------------------------------------------------------------------------
OXFORD OF 34 907 1 [*] [*] x x SE
-----------------------------------------------------------------------------------------------------------------------------------
PENDLE FOREST PLF 21 196 3 [*] [*] NW
------------------------------------------------------------------------------------------------------------------------------------
PLYMPTON PTN 52 149 3 [*] [*] SW
------------------------------------------------------------------------------------------------------------------------------------
PONTOP PIKE *PP* 48 1,309 1 [*] [*] x x NE
------------------------------------------------------------------------------------------------------------------------------------
PONTYPOOL PPL 52 78 3 [*] [*] Wls
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Religion Site Design
--------------------------------------------------------------------------------------------------------------------
ITV SDN Landlord ITC BBC Generic ERP
STATION Channel 4 Designation Studio Source (kw)
---------------------------------------------------------------------------------------------------------------------
XXXXXX M Cen2 R2 CTI R BM _LSA 0.050
---------------------------------------------------------------------------------------------------------------------
FREMONT POINT E ChTv1 R2 NTL M PY SLDA 0.200
---------------------------------------------------------------------------------------------------------------------
GUILDFORD L C/LWT R2 CTI R TC _LDN 0.100
---------------------------------------------------------------------------------------------------------------------
HANNINGTON E Meri2 R2 CTI M SO SLDN 10.000
---------------------------------------------------------------------------------------------------------------------
HASTINGS E Meri4 R2 CTI R SO _LSA 0.100
---------------------------------------------------------------------------------------------------------------------
HEATHFIELD E Meri4 R2 CTI M SO SLDN 1.600
---------------------------------------------------------------------------------------------------------------------
HEMEL XXXXXXXXX X X/LWT R2 CTI R TC _LDN 0.100
---------------------------------------------------------------------------------------------------------------------
HUNTSHAW CROSS E WC4 R2 NTL R PY _LDA 2.000
---------------------------------------------------------------------------------------------------------------------
IDLE N York1 R2 NTL R LS _LSA 0.003
---------------------------------------------------------------------------------------------------------------------
KEELYLANG HILL S Gram2 R3 CTI R GW _LDN 1.000
---------------------------------------------------------------------------------------------------------------------
KEIGHLEY N York1 R2 NTL R LS _LSA 0.050
---------------------------------------------------------------------------------------------------------------------
KILVEY HILL E HTV R1 CTI R CF _LDN 0.300
---------------------------------------------------------------------------------------------------------------------
KNOCK MORE S Gram2 R3 NTL R GW _LDA 1.000
---------------------------------------------------------------------------------------------------------------------
LANCASTER N Gran1 R2 NTL R MR _LSA 0.100
---------------------------------------------------------------------------------------------------------------------
LARK STOKE M Cen2 R2 CTI R BM _LSA 0.025
---------------------------------------------------------------------------------------------------------------------
LLMAVADY U UTV1 R2 CTI R BE _LDA 0.800
---------------------------------------------------------------------------------------------------------------------
LIANDDONA N HTV R1 CTI R CF _LDA 1.000
---------------------------------------------------------------------------------------------------------------------
MALVERN M Cen2 R2 CTI R BM _LSA 0.100
---------------------------------------------------------------------------------------------------------------------
MENDIP E HTV R2 CTI M BS SLDN 3.000
---------------------------------------------------------------------------------------------------------------------
MIDHURST E Meri3 R2 CTI M SO _LDN 10.000
---------------------------------------------------------------------------------------------------------------------
MOEL-Y-PARC N HTV R1 NTL M CF _LDN 0.500
---------------------------------------------------------------------------------------------------------------------
NOTTINGHAM M Cen4 R2 NTL R NO LSA 0.020
---------------------------------------------------------------------------------------------------------------------
OLIVERS MOUNT N York1 R2 CTI R LS _LSA 0.050
---------------------------------------------------------------------------------------------------------------------
OXFORD M Cen3 R2 CTI M TC SHDA 10.000
---------------------------------------------------------------------------------------------------------------------
PENDLE FOREST N Gran1 R2 NTL R MR _LSA 0.050
---------------------------------------------------------------------------------------------------------------------
PLYMPTON E W C3 R2 NTL R PY _LSA 0.100
---------------------------------------------------------------------------------------------------------------------
PONTOP PIKE N TTT1 R2 CTI M NT SHDA 10.000
---------------------------------------------------------------------------------------------------------------------
PONTYPOOL E HTV R1 CTI R CF _LDN 0.010
---------------------------------------------------------------------------------------------------------------------
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
5
DTT TRANSMISSION ROLL-OUT
-----------------------------------------------------------------------------------------------------------------------------
UHF Coverage ITC
STATION Abbreviation Channel (000' proportional) Phase
-----------------------------------------------------------------------------------------------------------------------------
PRESELY PRS 47 97 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
REDRUTH RR 39 240 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
REIGATE REI 31 219 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
RIDGE HILL RHA 34 527 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
ROSEMARKIE RK 47 112 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
ROSNEATH ROS 67 126 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
ROWRIDGE *ROW* 67 1,731 1 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
RUMSTER FOREST RMF 28 60 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
SADDLEWORTH SWH 47 366 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
XXXXXXXXX XX 55 47 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
XXXXX XXXXX *SDT* 29 1,745 1 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
SELKIRK SXJ 53 69 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
SHEFFIELD SF 39 340 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
STOCKLAND HILL SDL 22 572 1 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
STORETON SEN 30 206 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
SUDBURY SVY 49 645 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
XXXXXX COLDFIELD *SC* 41 2,923 1 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
TACOLNESTON TAC 63 868 1 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(E) WRK 39 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(W) WRK 21 882 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
TOROSAY TOY 23 13 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
TUNBRIDGE XXXXX XX 55 75 3 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
WALTHAM *WBF* 49 2,098 1 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
WENVOE *WV* 39 907 1 T [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
WHITEHAWK XXXX XX 66 386 2 [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* 56 5,058 1 T [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* 67 1 T [*] [*]
-----------------------------------------------------------------------------------------------------------------------------
DTT TRANSMISSION PRIORITY REGION
-----------------------------------------------------------------------------------------------------------------------------
Contractual
STATION Abbreviation Operational Response Time BBC Channel 4 ITV SDN
-----------------------------------------------------------------------------------------------------------------------------
PRESELY PRS Wls E HTV C1 R1
-----------------------------------------------------------------------------------------------------------------------------
REDRUTH RR x SW E W C5 R2
-----------------------------------------------------------------------------------------------------------------------------
REIGATE REI SE L C/LWT R2
-----------------------------------------------------------------------------------------------------------------------------
RIDGE HILL RHA x Mid M Cen1 R2
-----------------------------------------------------------------------------------------------------------------------------
ROSEMARKIE RK Scd S Gram2 R3
-----------------------------------------------------------------------------------------------------------------------------
ROSNEATH ROS Scd S Scot1 R3
-----------------------------------------------------------------------------------------------------------------------------
ROWRIDGE *ROW* x x Sth E Meri1 R2
-----------------------------------------------------------------------------------------------------------------------------
RUMSTER FOREST RMF Scd S Gram2 R3
-----------------------------------------------------------------------------------------------------------------------------
SADDLEWORTH SWH x NW N Gran1 R2
-----------------------------------------------------------------------------------------------------------------------------
XXXXXXXXX XX Sth E Meri1 R2
-----------------------------------------------------------------------------------------------------------------------------
XXXXX XXXXX *SDT* x x WA E Ang2 R2
-----------------------------------------------------------------------------------------------------------------------------
SELKIRK SXJ Scd S Bord2 R2
-----------------------------------------------------------------------------------------------------------------------------
SHEFFIELD SF x Nth N York2 R2
-----------------------------------------------------------------------------------------------------------------------------
STOCKLAND HILL SDL x x SW E WC1 R2
-----------------------------------------------------------------------------------------------------------------------------
STORETON SEN NW N Gran1 R2
-----------------------------------------------------------------------------------------------------------------------------
SUDBURY SVY x x E E Ang1 R2
-----------------------------------------------------------------------------------------------------------------------------
XXXXXX COLDFIELD *SC* x x Mid M Cen2 R2
-----------------------------------------------------------------------------------------------------------------------------
TACOLNESTON TAC x x E E Ang3 R2
-----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(E) WRK x x Mid X Xxx0 X0
-----------------------------------------------------------------------------------------------------------------------------
XXX XXXXXX(X) XXX x x Mid M Cen2 R2
-----------------------------------------------------------------------------------------------------------------------------
TOROSAY TOY Scd S Scot1 R3
-----------------------------------------------------------------------------------------------------------------------------
XXXXXXXXX XXXXX XX XX X Xxxx0 X0
-----------------------------------------------------------------------------------------------------------------------------
XXXXXXX *WBF* x x Emid M Cen4 R2
-----------------------------------------------------------------------------------------------------------------------------
WENVOE *WV* x x Wls E HTVC1 R1
-----------------------------------------------------------------------------------------------------------------------------
WHITEHAWK XXXX XX x Sth E Meri3 R2
-----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* x x NW N Gran1 R2
-----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* x x NW N Gran1 R2
-----------------------------------------------------------------------------------------------------------------------------
DTT TRANSMISSION SITE DESIGN
-----------------------------------------------------------------------------------------------------------------------
ITC BBC ERP
STATION Abbreviation Landlord Designation Studio Source Generic (kw)
-----------------------------------------------------------------------------------------------------------------------
PRESELY PRS NTL R CF LDA 0.500
-----------------------------------------------------------------------------------------------------------------------
REDRUTH RR CTI R PY LDA 1.600
-----------------------------------------------------------------------------------------------------------------------
REIGATE REI CTI R TC LDN 0.100
-----------------------------------------------------------------------------------------------------------------------
RIDGE HILL RHA NTL M BM SHDN 5.000
-----------------------------------------------------------------------------------------------------------------------
ROSEMARKIE RK CTI R GW HDA 10.000
-----------------------------------------------------------------------------------------------------------------------
ROSNEATH ROS NTL R GW LSA 0.100
-----------------------------------------------------------------------------------------------------------------------
ROWRIDGE *ROW* CTI M SO SLDN 10.000
-----------------------------------------------------------------------------------------------------------------------
RUMSTER FOREST RMF NTL R GW LDA 1.000
-----------------------------------------------------------------------------------------------------------------------
SADDLEWORTH SWH NTL R MR LSA 0.020
-----------------------------------------------------------------------------------------------------------------------
XXXXXXXXX XX CTI R SO LSA 0.500
-----------------------------------------------------------------------------------------------------------------------
XXXXX XXXXX *SDT* NTL M CB SHDN 10.000
-----------------------------------------------------------------------------------------------------------------------
SELKIRK SXJ NTL M GW SLDA 3.000
-----------------------------------------------------------------------------------------------------------------------
SHEFFIELD SF CTI R LS SLDN 0.050
-----------------------------------------------------------------------------------------------------------------------
STOCKLAND HILL SDL NTL M PY HDN 2.500
-----------------------------------------------------------------------------------------------------------------------
STORETON SEN CTI R MR LDN 0.028
-----------------------------------------------------------------------------------------------------------------------
SUDBURY SVY CTI M NC LDN 7.000
-----------------------------------------------------------------------------------------------------------------------
XXXXXX COLDFIELD *SC* CTI M BM SLDN 4.000
-----------------------------------------------------------------------------------------------------------------------
TACOLNESTON TAC CTI M NC SLDN 10.000
-----------------------------------------------------------------------------------------------------------------------
THE WREKIN(E) WRK CTI R BM LDN 1.000
-----------------------------------------------------------------------------------------------------------------------
THE WREKIN(W) WRK CTI R BM LDN 1.000
-----------------------------------------------------------------------------------------------------------------------
TOROSAY TOY CTI R GW LDA 0.125
-----------------------------------------------------------------------------------------------------------------------
TUNBRIDGE XXXXX XX CTI R TC LDA 0.100
-----------------------------------------------------------------------------------------------------------------------
WALTHAM *WBF* CTI M NO SHDN 5.000
-----------------------------------------------------------------------------------------------------------------------
WENVOE *WV* CTI M CF SHDN 10.000
-----------------------------------------------------------------------------------------------------------------------
WHITEHAWK XXXX XX CTI R SO LSA 0.100
-----------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* NTL M MR SHDN 5.000
-----------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* NTL M MR SLDN 0.100
-----------------------------------------------------------------------------------------------------------------------
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
6
SCHEDULE 2
CHARGES
1. INTRODUCTION
1.1 This Schedule details the charges payable under this Agreement and the
mechanism for establishing all future charges that may become payable as
agreed between both parties. It also sets out the charges for liquidated
damages and service termination.
1.2 No change shall be made to any charges under this Agreement without prior
written agreement between the parties, as appropriate.
2. PRINCIPLES
2.1 Charges shall become due from the BBC from the First Payment Date specified
in Clause 2.3.4, after which a monthly payment will be made in arrears to
CTI, which will be one twelfth of the annual charge agreed.
2.2 The annual charge may be varied on each anniversary of the First Payment
Date for the purpose of inflationary adjustment. Adjustments will be
calculated by applying the Retail Price Index (RPI) [*].
2.3 Changes to the Agreement that involve a change to the annual charge other
than by application of RPI, shall be calculated and executed in accordance
with the Change Control Procedure (Schedule 3).
2.4 Service Credits that may accrue to the BBC will be deducted from subsequent
payments due to CTI, as appropriate, and established in accordance with the
procedures prescribed in Schedule 8.
2.5 Liquidated damages that may become payable to the BBC will be deducted from
the monthly payments due to CTI.
3. CHARGES
3.1 The BBC shall pay CTI monthly in arrears one twelfth of the agreed annual
charge, following receipt each month of a valid invoice.
3.2 The agreed annual charge for Phase 1 (excluding VAT) shall be:[*]
3.3 If the BBC commits to Phase 2 before the date set out in Clause 2.4.1, the
agreed annual charge for Phase 2 (excluding VAT) shall be:[*]
3.4 If the BBC commits to Phase 3 before the date set out in Clause 2.4.1, the
agreed annual charge for Phase 3 (excluding VAT) shall be:[*]
For the avoidance of doubt, the first payment date for Phase 3 shall be the
first day of the month following the date that the BBC commits to Phase 3.
3.5 In addition to the annual charge, the BBC shall pay the actual cost of the
WT Act Licence fee for the transmission of the BBC multiplex from the
Stations. This fee will be paid to CTI by the BBC on receipt of a valid
invoice from CTI, supported by a copy of the invoice from the
Radiocommunications Agency.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
4. CHANGES TO CHARGES
4.1 GENERAL
4.1.1 Changes to the annual charge shall be made in accordance with the
following procedures.
4.2 CHANGE DUE TO INFLATION
4.2.1 On the First Payment Date, and each anniversary of the Payment Date
thereafter, the annual Charge shall be uplifted by the Retail Price
Index [*]. The uplift will be agreed two months prior to the date on
which the increase is due to take effect, and RPI will be taken from
the most recently published index issued by the Central Statistical
Office. Where such index is no longer published, any other index
replacing RPI shall be used, subject to the agreement of both parties.
4.3 CHANGE UNDER CHANGE CONTROL
4.3.1 Where a change executed in accordance with the provisions of Schedule
3 results in a change (up or down) to the annual charges, the
following shall apply in calculating subsequent adjustments due to
RPI:
a) where change brings an increase to the annual charge and the increase
takes effect after 3 months from the last RPI adjustment, the increase
will not be taken into account when calculating the next RPI
adjustment;
b) where change brings a decrease to the annual charge and the decrease
takes effect after 6 months from the last RPI adjustment, the decrease
will not be taken into account when calculating the next RPI
adjustment.
4.3.2 Both parties will agree in good faith the point when it is appropriate
to adjust the annual service charge
4.4 RIGHT TO AUDIT
4.4.1 The BBC shall retain the right to audit all information provided by
CTI under the "open book" approach, as defined in Schedule 3.
5. LIQUIDATED DAMAGES
5.1 PRINCIPLES
5.1.1 Liquidated damages shall be
5.1.2 Liquidated Damages will be payable as set out in Schedule 1. In the
case of Phase I this will relate to delays from the Phase 1 in the
event of delays from the Launch Date and for Phases 2 and 3 from the
Phase 2 Service Date and Phase 3 Service agreed industry roll-out Date
(as appropriate) shown in Schedule 1. Liquidated Damages will be
deducted from the Charges in the payment following their occurrence.
5.1.3 The following Liquidated Damage charges will apply:
Station CHARGE PER DAY
Black Hill [*]
Crystal Palace [*]
Xxxxx [*]
Wenvoe [*]
Phase 1 Stations identified as "must have for launch" [*]
Other Phase 1 Stations [*]
All Phase 2 and Phase 3 Stations [*]
subject to a maximum aggregate charge of [*] per day.
5.2 METHOD OF CALCULATING DAMAGES FOR PHASE 1
5.2.1 For those Phase 1 Stations which the parties have agreed and indicated
in Schedule 1, Table 1 that the BBC "must have at launch", any delay
in the issuance of an Acceptance Certificate in accordance with Clause
2.7.5 by the BBC before the Phase 1 Launch Date will be deemed to
prevent the launch of all Phase 1 Stations and CM shall pay to the BBC
liquidated damages for those Stations as set out above.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
2
5.2.2 For those Phase 1 Stations which the parties have not agreed nor
indicated in Schedule 1 Table 1 that the BBC "Must have at launch",
any delay in the issuance of an Acceptance Certificate by the BBC
before the Phase 1 Launch Date will be deemed to prevent the launch of
that Station only, and CTI shall pay to the BBC Liquidated Damages at
the rates set out against each Station as set out above for each day
that the Launch Date for that Station is delayed.
5.3 METHOD OF CALCULATING DAMAGES FOR PHASES 2 AND 3
5.3.1 For those Stations included in Schedule 1 Table 1 for Phases 2 and 3,
any delay in the issuance of an Acceptance Certificate in accordance
with Clause 2.7.5 by the BBC, shall initiate the payment of Liquidated
Damages by CTI for that Station, as set out above.
6. TERMINATION
6.1 If the BBC chooses to terminate this Agreement at the agreed review point
given in clause 12.2.1, the BBC will be liable to pay CTI on termination
a charge which will be:
Where the BBC has committed to Phase 1 only: [*]
Where the BBC has committed to Phases 1 and 2: [*]
Where the BBC has committed to Phases 1, 2 and 3: [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
3
SCHEDULE 3
PART I: CHANGE CONTROL
1. INTRODUCTION
1.1 This Schedule defines the Change Control Procedure by which the parties
will deal with all proposed changes to this Agreement. CTI and the BBC will
discuss any proposed change, and the consequences, in good faith and within
agreed timescales. Either party may raise with the other a requirement for
a change to the Agreement, but only changes agreed with CTI and authorised
in writing by the BBC may be executed.
2. PRINCIPLES
2.1 Changes which are reasonably needed for CTI to comply with its fundamental
obligations under this Agreement shall be undertaken by CTI within an
agreed timescale and at its cost, unless CTI can adequately demonstrate,
and the BBC agrees (such agreement not to be unreasonably withheld) that it
would be unreasonable for CTI to bear the full cost of the necessary
change.
2.2 The primary approach to change is two-fold:
i) major change involving additional services will be managed within the
Chance Control Procedure and the Charges varied accordingly
ii) technological changes with the purpose of maintaining, enhancing or
improving either the quality and efficiency or overall value for money
of the Services will be managed under the Change Control Procedure.
The onus will be on CTI to demonstrate innovative ways of financing
such changes within the agreed Charges and to manage the consequences
and risk of implementing such changes.
2.3 In principle, the primary areas of this Agreement and the Services that
will be subject to change control are as follows:
i) requirements for additional Stations
ii) technology refresh designed to improve the quality, efficiency and
value for money of the Services
iii) technology refresh which provides additional functionality not yet
available, such as particular technical monitoring capabilities
iv) enhancements or additions to the Services that represent additional
features or service functionality
2.4 Changes that involve a variation (up or down) to the Charges will be
established either:
i) by reference to fixed charges already agreed, if any, between both
parties, such as a fixed charge for additional Stations or
transmitters
ii) by use of an "open book" policy, where CTI will provide a reasonably
detailed breakdown (in any format requested by the BBC) of the cost of
any proposed change, which demonstrates that such costs have been
minimised and that the change represents best value for money.
2.5 Any report requested from CTI by the BBC under paragraph 4.2 below which
details the impact and costs of any change shall include, as a minimum, the
following:
i) effects on performance
ii) any consequential effects of the change
iii) potential for disruptions
iv) any appropriate contingency plans
1
3. CHANGES PROPOSED BY CTI
3.1 If CTI proposes any changes to this Agreement, then CTI must submit to the
BBC a document describing the suggested changes, and detailing:
i) any impact the change would have on the timing for provision of any
Services under this Agreement.
ii) any impact the change would have on the Charges payable under this
Agreement.
iii) a description of the benefits that the change would make to the
provision of the Services.
iv) any other changes that would be required to any aspect of this
Agreement if the change were implemented.
v) any other matter or thing of which CTI is aware that would be relevant
to deciding whether or not to implement the change.
3.2 Within 10 Business Days of receipt by the BBC of the document referred to
in paragraph 3.1, the parties must commence discussions in good faith on
the proposed change with a view to agreeing whether to amend this
Agreement.
4 CHANGES PROPOSED BY THE BBC
4.1 The BBC may at any time propose changes to this Agreement. The BBC may
require CTI to make any changes arising from a change to the BBC's Charter
or DNH Agreement.
4.2 Within 20 Business Days of receipt of a notice from the BBC or other period
as agreed between the parties proposing or requiring a change, CTI must
submit to the BBC a document detailing the matters set out in paragraphs
3.1(i) to 3.1(v).
4.3 Within 10 Business Days of receipt by the BBC of the document referred to
in paragraph 4.2, the parties must discuss in good faith the proposed or
required change with a view to agreeing whether to amend this Agreement.
PART II: MANAGEMENT OF FORESEEABLE CHANGES
-------------------------------------------------------------------------------------
Change
Change Area Ref. Specific Change Details of Exposure [*]
-------------------------------------------------------------------------------------
DISTRIBUTION 1A SI insertion [*] [*]
SYSTEM required other than
as defined in
Schedule 1I
-------------------------------------------------------------------------------------
1B Modifications to Delays and/or technology [*]
distribution network problems. Management
provided by BT and performance of BT will
be exclusively CTI's
responsibility.
-------------------------------------------------------------------------------------
1C Change of BBC Ramifications of regional [*]
Editorial Regional boundary changes on
Boundaries proposed distribution
network and SI collation.
CTI to make reasonable
endeavours in network
planning to minimise
additional costs. This is
subject to BBC submitting
details of possible regional
changes PRIOR to network
design being finalised by
CTI.
-------------------------------------------------------------------------------------
TRANSMISSION 2A Frequency Co- Changes to network [*]
SYSTEM ordination and and/or transmission
Planning systems made
-------------------------------------------------------------------------------------
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
2
-------------------------------------------------------------------------------------
Change
Change Area Ref. Specific Change Details of Exposure [*]
-------------------------------------------------------------------------------------
necessary by the process
of agreeing the frequency
plan other than where a
change of site is required.
-------------------------------------------------------------------------------------
Changes to network [*]
and/or transmission
systems made necessary
by the process of agreeing
the frequency plan where
a change of site is
required.
-------------------------------------------------------------------------------------
2B Cross-Carriage of Risk of co-ordination with [*]
SI other multiplex
transmission service
providers.
-------------------------------------------------------------------------------------
2C Fundamental Changes to SI [*]
Changes to SI implementation from the
Collation Strategy system specified in CTI's
including Non- Proposal but in
distributed accordance with the D-
collation Mux Group agreement.
and/or Non-DVB
compliant SI
--------------------------------------
Changes required by the
BBC other than in
accordance with the D-
Mux Group agreement.
-------------------------------------------------------------------------------------
2D Changes to Risk of additional changes [*]
Analogue Network to the analogue network
over and above those
required in Schedule 4:
Analogue Changes. CTI
will absorb any minor
costs where significant
capital outlay is not
required.
-------------------------------------------------------------------------------------
2E Frequency Offset Risk of changes [*]
associated with adoption
or removal of frequency
offsets.
-------------------------------------------------------------------------------------
2F Re-radiation of Radiation of unwanted [*]
Digital signals caused by re-
transmissions by radiation of adjacent
Analogue Relays channel digital
transmissions by analogue
transposers.
CTI will modify up to 20
transposers where an
interference problem is
identified for [*] per
transposer per annum.
Beyond this number of
transposers, the Change
Control Procedure will
determine the price.
-------------------------------------------------------------------------------------
2G DTG D-Book Post-contract changes to [*]
Changes the D-Book which the BBC
requires CTI to implement.
---------------------------------------------------------------------------------
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
3
SCHEDULE 4
CHANGES TO THE ANALOGUE NETWORK
1. TYPES OF CHANGE
1.1 The existing analogue television transmission network will need to be
modified to permit the introduction of DTT. For any analogue station, these
changes may include, but are not limited to:
i) modification of the VSB response to permit adjacent channel DTT
operation
ii) modification of the maximum ERP
iii) modification of the antenna parameters
iv) addition of a precision offset
v) frequency changes
vi) introduction of additional analogue transmissions
1.2 Other changes to the network may include:
i) construction and operation of new analogue transmitter sites
ii) modifications to ancillary services equipment
1.3 The required changes to the analogue network shall be derived from the
information contained in Schedule 12 Appendix 4, and References 15, 16, 29
and 32 in Schedule 13. The changes proposed by CTI are summarised in Tables
1 and 2 below for information purposes only.
Table 1: Analogue modifications at non-DTT stations as a result of
Multiplex 1 (for information purposes only)
--------------------------------------------------------------------------
Trpsr New RBL New
Analogue DTT Chan ERP Relay Ant Tx
Station Landlord Interferer P.O. Chnge Inc Stn Mods Ant
--------------------------------------------------------------------------
Arfon NTL PRS x
Ardnadam CTI BKH x x
Bargoed CTI WV x
Xxxxxx Town CTI LCR x
Bath CTI BSK x
Bronnant SH CTI* BY x
Carhampton CTI WV x x x
Cefn-Mawr NTL SC x x
Chagford CTI CRL x
Croeserw NTL HC x
Cwmbran NTL* SDL x
Easter Xxxxxxx NTL WV x x
Gilfach CTI WV x
Glyncorrwg NTL XX x
Xxxxxxxxx CTI WV x
--------------------------------------------------------------------------
High Xxxx CTI DIV x
Ilfracombe NTL HC x
Kewstoke NTL WV x x x
Long Mountain CTI SC x
Lydden NTL DOV x
Pitlochry CTI SXJ x
Ramsbottom NTL WRH x
Redcliff Bay NTL WV x x x
Roadwater CTI WV x
Woodcombe CTI WV x x x x
--------------------------------------------------------------------------
* Subject to confirmation
1
Table 2: Analogue modifications at DTT stations as a result of Multiplex 1
(for information purposes only)
-------------------------------------------------------
Modify
Modify Group Precision Replace
Analogue Station VSB Delay Offset Drive
-------------------------------------------------------
Aberdare x
Beacon Hill x x
Bilsdale x x
Black Hill x
Blaenplwyf x
Bressay x x
Bristol I.C. x x
Xxxxxx x
Xxxxxxx x
Chesterfield x
Crystal Palace x x
Darvel x x
Eitshal x
Emley Moor x
Fenham x x
Xxxxxx x x
Guildford x x
Hastings x x
Hemel Hempstead x
Huntshaw Cross x x
Keighley x x
Kilvey Hill x x
Knock More x
Lancaster x
Malvern x x
Mendip x x
Midhurst x
Oxford x
Pendle Forest x x
Pontop Pike x
Pontypool x
Presely x x
Ridge Hill x x
Rumster Forest x
Xxxxx Xxxxx x
Selkirk x
Stockland Hill x x
Xxxxxx Coldfield x x
Tacolneston x
Torosay x
Waltham x
Winter Hill x
-------------------------------------------------------
2 REQUIREMENT
2.1 CTI shall design and carry out, or procure, the changes to:
a) that part of the existing analogue network used for BBC services
necessitated by the introduction of the BBC's digital multiplex
b) that part of the existing analogue network used for third party
services necessitated by the introduction of the BBC's digital
multiplex
c) that part of the existing analogue network used for BBC services
necessitated by the introduction of third party digital multiplexes
2
2.2 The changes shall be made in accordance with the methodology outlined in 3
below, unless otherwise agreed between the parties.
2.3 For the avoidance of doubt the changes outlined in (a) and (b) above shall
be carried out with the BBC's consent and charged in accordance with this
Agreement. The changes outlined in (c) above shall be carried out under the
Analogue Contract at the relevant third party multiplex operator's cost.
Any charge made shall include a one-off payment for the ongoing operation
and maintenance of any new equipment supplied under the requirements of 2.1
above.
2.4 Without prejudice to Clause 2.6.3, CTI shall comply with whatever changes
are required by the Radiocommunications Agency and the Department of
Culture, Media & Sport when national approval is granted.
2.5 In addition, CTI shall work with and comply with the timetable of the
organisation charged by the multiplex operators for ensuring that
interference to domestic reception of analogue TV is rectified. The
approach adopted will fall within the ITC regulation described in Reference
14.
3 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
3
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
4
SCHEDULE 7
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
5
SCHEDULE 8
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
6
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
7
SCHEDULE 5
TRANSMISSION REQUIREMENTS
1 GENERAL
1.1 The DTT Transmission Service shall comply with all applicable laws,
regulations, industry standards and codes of practice. CTI shall be liable
for the cost implications of complying with any changes arising from
amendments to existing, or new, laws, regulations etc.
2 BBC INTERNAL DTT ARCHITECTURE
2.1 Introduction
2.1.1 The BBC will distribute programmes to a number of its studio centres
around the UK, and will install and operate equipment at those centres
to assemble the national-regional and English-regional DTT
multiplexes. The centres involved are set out in Schedule 7. The BBC
reserves the right to vary the number and location of such studio
centres from time to time, and CTI shall provide sufficient
flexibility in its network design to accommodate such changes with
minimal dislocation and associated additional costs.
2.2 National Regions
2.2.1 Coding and multiplexing equipment will be installed by the BBC in the
national-regional studio centres at Glasgow, Belfast, and Cardiff.
Such equipment will also be installed by the BBC at the English
regional studio centre in TV Centre, London. The programme services
with the addition of SI describing the BBC multiplex services will be
re-multiplexed into DTT format. CTI shall send the resulting signal
from the national-regional studio centres to the relevant Stations
where it shall be re-multiplexed by CTI to insert the SI of the other
multiplex operators which is to be cross-carried within the BBC
multiplex, and modulated using the DVB-Terrestrial Specification
(Reference 6).
2.3 English Regions
2.3.1 The BBC will also install coding and multiplexing equipment at 11
English-regional studio centres (including London) to allow local opt-
outs to be generated. This will allow the BBC to meet the requirements
of the Broadcasting Act to simulcast analogue services on DTT. The
programme services including the SI of the BBC English-regional
multiplexes will then be multiplexed into DTT format. The English-
regional studio centres will act in a similar way to the national-
regional studio centres.
2.3.2 CTI shall send the resulting signal from the English-regional studio
centres to the relevant Stations where it shall be re-multiplexed by
CTI to insert the SI of the other multiplex operators which is to be
cross-carried within the BBC multiplex, and modulated as set out in
Reference 6.
2.3.3 The stations for both the national and English-regional variants of
the BBC multiplex are shown in Schedule 1
3 OVERVIEW OF DTT TRANSMISSION SERVICE
3.1 The DTT Transmission Service shall be provided using a network of
terrestrial stations installed, maintained and operated by CTI. The BBC
will not contribute directly to the capital cost of this network or the
cost of maintaining the network.
3.2 The DTT Transmission Service is made up of the following elements:
. The design, configuration, supply, installation, maintenance and
operation of all digital transmission equipment and associated equipment
at Stations (see Section 4, below).
. The design, supply, installation, maintenance and operation of the links
to enable distribution of the BBC multiplexed signal from the BBC's
national-regional and English-regional studio centres to Stations (see
Section 5, below).
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
1
. The supply, installation, maintenance and operation of MPEG-2
multiplexing equipment, to enable configuration of the BBC multiplex at
key Stations (see Section 6, below).
. Modification, as appropriate, to the transmission characteristics of the
existing analogue transmitters to permit the introduction of the digital
television multiplex and the simultaneous transmission of analogue
services. Changes to the analogue transmission network shall be
undertaken in conjunction with the operator of the analogue services, as
set out in Schedule 4.
. Liaison and co-ordination with other multiplex and transmitter network
operators, and receiver manufacturers, to ensure that the BBC's signals
can be satisfactorily received and displayed. In particular, this will
require working with other multiplex operators to ensure that SI, EPG
and CA data that the BBC may wish to broadcast are correctly inserted
into the multiplex. CTI shall ensure that the equipment employed has the
flexibility to support such SI, EPG and CA requirements (which may be
added at a later date). To facilitate this, the BBC will endeavor to
reach agreement with other multiplex operators and licensing authorities
about the format and technical requirements of SI, EPG and CA.
3.3 CTI shall assume end-to-end responsibility for the provision of the service
from BBC national-regional and English-regional studio centre interface to
transmission from Stations, and shall ensure that the design,
implementation and operation of each service component is consistent with
the overall design. Although CTI's responsibilities do not extend to the
receipt of signals at receivers, CTI shall assist the BBC in resolving
viewers problems on a reasonable endeavours basis.
3.4 The arrangements for rectification of any interference caused by the BBC
DTT multiplex to analogue domestic reception comprises two parts; changes
at Stations (covered in Schedule 4), and changes at domestic receiving
locations. The latter will form part of a separate contract and is not
covered in this Agreement. However, CTI shall provide Station changes in
co-ordination with the agreed industry timetable for changes to domestic
receivers set out in that separate contract.
4. TRANSMISSION
4.1 CTI shall design, supply, install and operate facilities to radiate the
BBC's multiplex in accordance with:
. the CTI Technical Specification for each Station as listed in Schedule
12.
. the subset of transmission characteristics defined in Reference 6 as 2k
system, 1/32 guard interval, 64 QAM model, with FEC-2/3 and Xxxx Xxxxxxx
defined by RS (204, 188, t=8).
. ITC UK DTT Frequency Plan (Reference 1)
. DTG Interoperability requirements (Reference 7)
4.2 CTI shall use all reasonable endeavours to minimise the impact of changes
in the transmission characteristics as a result of international co-
ordination.
4.3 CTI shall take responsibility for obtaining such access to sites and/or
masts owned by other parties as it requires in order to provide the
Services.
4.4 The main feed at each Station shall contain the correct BBC Regional
Programming. In relation to national regional programming, reserve feeds
for the Stations must also contain the correct national-regional variant of
the BBC multiplex. In relation to English-regional programming, at
Operational Priority Stations (as shown in Schedule 1) the reserve feed
must carry the correct English regional variant. At non-priority Stations
CTI may use an incorrect English-regional variant for reserve purposes only
where this gives a substantial and identificable technical or economic
benefit to the BBC. Such use of an incorrect English-regional variant as a
reserve feed will require prior agreement with the BBC.
5. DISTRIBUTION LINKS FROM THE BBC'S STUDIO CENTRES
5.1 CTI shall design, supply, install and operate or procure distribution links
from the agreed BBC-CTI interface at the BBC's studio centres to the Phase
1 Stations covered in Schedule 1 and, if relevant, the subsequent Stations.
Access to BBC studio centres for this purpose will be pursuant to the site
sharing agreement shown in Schedule 10.
5.2 The key points of the overall architecture for BBC's DTT service are:
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
2
. Each DTT national-regional multiplex will be available at a network
termination point at the appropriate studio centre in the national
region. That is, BBC Scotland at Xxxxxxxxxxxx Xxxxx, Xxxxxxx, XXX
Xxxxxxxx Xxxxxxx at Broadcasting House, Belfast and BBC Wales at
Broadcasting House, Cardiff.
. The English-regional multiplexes for the English regions will be
available at the relevant BBC studio centre.
5.3 At Operational Priority Stations a single point of failure between the main
and reserve feeds should be avoided as far as is reasonably practicable.
For reasons of Rights protection, CTI shall ensure that any terrestrial or
satellite circuits used only for the primary distribution of services
cannot be used to feed domestic installations outside the UK or to feed
national-regional variants outside the relevant national-region. However,
if a closed, low-power or proprietary system is used, the services may not
need to be scrambled; any use of such an approach by CTI will require the
prior agreement of the BBC.
6 MULTIPLEXING REQUIREMENTS
6.1 General
6.1.1 Subject to Sections 6.1 and 6.2 below, CTI shall design, procure,
supply, install and operate suitable equipment to multiplex additional
data into the MPEG data stream for radiation at each Station for
cross-carriage of DVB SI.
6.1.2 No other recoding or remultiplexing of the DTT MPEG transport stream
provided by the BBC shall be performed by CTI, without the prior
written approval of the BBC.
6.2 Service Information (SI)
6.2.1 The SI referring to the BBC multiplex and inserted in the BBC
multiplex shall remain correct in the event of a reserve feed for the
BBC multiplex being selected. It is desirable that the SI referring to
the BBC multiplex and offered to other multiplex operators also
remains correct in the event of a reserve feed for the BBC multiplex
being selected. Similarly, it is desirable that the SI referring to
other multiplexes and inserted in the BBC multiplex accurately
reflects the actual status of the services radiated on the other
multiplexes. CTI shall comply with the SI insertion points identified
in Schedule 1.
6.2.2 Should central collation of SI be chosen by the D-Mux group, and
agreed by the BBC, remultiplexing equipment will be retained at the
Station where SI is required to be inserted. The specification for
this remultiplexing equipment, and the format in which the SI (or data
from which SI is derived) is provided, will be dependent on the
central collator system that is chosen.
6.3 Electronic Programme Guide (EPG) and Conditional Access (CA) data
6.3.1 The BBC will endeavour to reach agreement with any of the other
multiplex operators which intend to carry an EPG and CA as part of
their terrestrial multiplex. Although the insertion, carriage and
cross carriage of EPG and CA data is outside the scope of this
agreement, CTI shall assist in this process by providing the ability
for appropriate data insertion and extraction to be carried out by the
BBC or its agents, including a reasonable right of access to CTI
buildings and/or items of infrastructure. In addition, CTI shall
provide a design sufficiently flexible to accommodate the above
requirements with minimal disruption and associated additional costs.
7 INDUSTRY LIAISON
7.1 CTI shall participate in relevant industry organisations and act on the
BBC's behalf to ensure a co-ordinated approach to the introduction of DTT,
and that the maximum compatibility is achieved between the signals radiated
on each multiplex.
7.2 In particular CTI shall liaise with other multiplex service providers,
operators and receiver manufacturers to assist the BBC in ensuring that the
SI, EPG and CA information can be cross-carried and that the BBC's DTT
services remain accessible by all DVB-T compliant receivers.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
3
SCHEDULE 6
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
2
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
3
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
5
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
6
[*]
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
7
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
8
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
9
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
10
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
11
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
12
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission seperately
13
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
14
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
15
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
16
SCHEDULE 7
INTERFACE SPECIFICATION
1 SIGNAL FORMATS
1.1 The signals at the network termination point at the Studio Centres in the
BBC will comprise multi-programme MPEG transport streams coded and
formatted in accordance with the ETSI/DVB and ISO/IEC standards as they
stand at the date of this Agreement, these being:
. Reference 17
. Reference 18
. Reference 19
. Reference 21
1.2 In addition to coded and compressed video, audio and data, the transport
streams will include DVB SI, coded and formatted in accordance with the
relevant ETSI/DVB and ISO/IEC standards which apply from time to time,
which as at the date of this Agreement are:
. Reference 7
. Reference 9
. Reference 10
. Reference 11
. Reference 13
. Reference 22
1.3 Any DVB subtitling included in Data will be coded and formatted in
accordance with Reference 25.
1.4 Any DVB Teletext included in Data will be coded and formatted in accordance
with Reference 30.
1.5 Any data services included in Data will be coded and formatted in
accordance with the relevant ETSI/DVB and ISO/IEC standards which apply
from time to time, which as at the date of this Agreement are under
development in the DVB Technical Module.
1.6 Although the Data will initially be supplied by the BBC unscrarnbled, at
some time in the future the video/audio/data conveyed within these Data may
be scrambled in accordance with Reference 23.
2 TRANSPORT STREAM BIT-RATE
2.1 The transport stream bit-rate provided by the BBC at each regional studio
centre shall be less than or equal to 24.000 Mbits/s of which an agreed
minimum of number kbits/s will be in the form of null packets.
2.2 No constraints shall be made by CTI on the BBC regarding the particular
temporal distribution of these null packets.
3 BBC FEED ARCHITECTURE
3.1 At each regional studio centre the BBC intends to use duplicated MPEG-2
multiplexers in a 1+1 redundant configuration.
3.2 The appropriate multiplexer output will be selected under automatic control
using downstream 2:1 coaxial switches.
1
3.3 Duplicate feeds of the selected output transport stream will therefore be
provided in DVB-ASI byte mode form from these managed switches. The DVB-ASI
transport stream physical interface is defined in Reference 24.
3.4 The contractual boundary at each studio centre will be the outputs of these
managed switches.
3.5 The BBC will provide CTI with accommodation and power in accordance with
the site sharing agreement in Schedule 10.
3.6 The sources of regional multiplexes are as follows:
---------------------------------------------
REGION STUDIO CENTRE
---------------------------------------------
East (E) Norwich
---------------------------------------------
East Midlands Nottingham
---------------------------------------------
Midlands Birmingham
---------------------------------------------
North (N) Leeds
---------------------------------------------
North East (NE) Newcastle
---------------------------------------------
North West (NW) Manchester
---------------------------------------------
South (S) Southampton
---------------------------------------------
South East (SE) Television Centre, London
---------------------------------------------
South West (SW) Plymouth
---------------------------------------------
West (W) Bristol
---------------------------------------------
West Anglia Cambridge
---------------------------------------------
Northern Ireland Belfast
---------------------------------------------
Scotland Glasgow
---------------------------------------------
Wales Cardiff
---------------------------------------------
2
SCHEDULE 8
OPERATIONAL SERVICES
1 SERVICE LEVEL AGREEMENT
1.1 It is intended that the day-to-day administration of this Agreement be the
subject of a formal service level agreement (SLA) between CTI and the BBC.
The SLA will be jointly developed by the BBC and CTI during the first six
months of this Agreement, and the BBC and CTI agree to progress this in a
timely fashion and in good faith.
1.2 The operational service requirements described in the subsequent paragraphs
will form the basis of the SLA, and shall apply until the SLA has been
completed and agreed.
2 MONITORING SERVICES
2.1 General
2.1.1 CTI shall operate the DTT Transmission Service in such a way as to
comply with the technical parameters set out in Table I for each
Station, 24 hours a day.
2.1.2 CTI shall maintain and enhance its existing network of TV dealer
contacts who are used to collate information on the quality of BBC TV
reception, and report annually on its status.
2.2 Process
2.2.1 Continuous
2.2.1.1 CTI are responsible for the quality of the DTT signal from the
Interface to the point of radiation from the transmit antenna at each
Station. CTI shall continuously monitor the signal at points
throughout the distribution system in order to confirm that the signal
meets the parameters set out in Table 1 relevant to the monitoring
point. If the signal fails to meet those parameters, CTI shall ensure
that the monitoring equipment normally alerts the TOC via the primary
communications link within 120 seconds of the failure commencing.
Should the primary communications link fail, CTI shall ensure that the
monitoring equipment alerts the TOC via a back-up communications link
within 300 seconds of the failure commencing.
2.2.1.2 The parameters monitored continuously shall include:
i) the integrity and decodability of the MPEG transport stream received
at the Interface
ii) the integrity and decodability of the broadcast MPEG transport stream
iii) transmitter power (and therefore, indirectly, effective radiated
power)
iv) equivalent loss of noise margin (see Note 1 below)
v) SI integrity
2.2.1.3 The monitoring provided by CTI shall be sufficient to identify that a
failure has occurred, and the part of the Transmission Network at
fault. Transport Stream monitoring shall be in accordance with
Reference 33.
2.2.1.4 CTI and the BBC recognise that the monitoring regime will change over
the life of this Agreement as measurement requirements change, and new
techniques and equipment become available. CTI shall ensure that all
monitoring is carried out in line with best industry practice, subject
to a joint annual review by the BBC and CTI of the list of parameters
to be monitored, the effectiveness of the monitoring and the
mechanisms by which the monitoring takes place.
2.2.1.5 CTI and the BBC agree that the asterisked numbers in the algorithm set
out in Appendix 1 will be reviewed in accordance with the impact of
transient errored seconds on the viewer. Such review may require use
of different parameters.
1
2.2.1.6 CTI shall procure test equipment to permit measurement of all
parameters on a non-intrusive basis as soon as reasonably practicable,
the type and quantity and timing of the acquisition of such test
equipment to be reviewed and agreed at the joint annual review.
2.2.1.7 CTI are not responsible for validating the editorial content of the
MPEG transport stream received at the Interface.
2.2.1.8 Faults not detected by the CTI monitoring system, but reported by BBC
staff, CTI staff or third parties and notified to CTI will be
investigated by CTI. Confirmed faults will be treated as Incidents for
the purposes of this Agreement. Incidents detected in such a way will
be deemed to have started at the time reported, unless evidence of an
earlier start time can be established by the BBC or CTI. CTI shall
keep full records of, and report at least annually on, the number of
Incidents detected in this way. If the BBC considers that the number
of faults which go undetected by the CTI monitoring system is
significant, CTI shall take all reasonable steps to remedy the
deficiency at its own cost.
Note 1
While this Agreement requires the measurement of the equivalent loss of
noise margin or an agreed replacement parameter on a continuous basis, the
BBC recognise that the state of technology pertaining at the time of
commencement of the Agreement does not permit this. Subject to the periodic
review of measuring equipment referred to in paragraph 2.2.1.6, the BBC
will agree to a temporary relaxation whereby the equivalent loss of noise
margin will be evaluated during the periodic tests described in paragraph
2.2.2.1or at other times by mutual agreement, following the procedure
described in Note 6 to Schedule 6, Part 2.
2.2.2 Periodic
2.2.2.1 CTI shall measure the parameters and confirm the correct operation of
every DTT transmitter system at least once per year. The tests shall
also cover the correct performance, operation and selection of reserve
equipment where installed. The results of these tests and measurements
shall be made available to the BBC on request. CTI shall maintain
sufficient books and records to ensure this information can be
obtained and shall retain records of such information for the duration
of this Agreement, or in the case of a dispute, for such a greater
length of time as is necessary to resolve it. Any interruptions to
service required to make these measurements will be Accountable
Incidents unless otherwise agreed.
2.2.2.2 Parameters checked shall include, but not be limited to:
i) the group-delay variation across the DTT signal bandwidth (see Note 2
below)
ii) the out-of-band emission of the DTT signal
iii) the out-of-band emission of analogue signals which are co-channel with
the DTT signal, arising as a result of analogue signals which are
adjacent channel to the DTT signal
iv) centre frequency
v) general compliance with the WT Act licence conditions in accordance
with best industry practice
Note 2
Until such time as this measurement can be made non-intrusively, the group
delay will be inferred by measuring the amplitude response across the DTT
signal bandwidth. If the amplitude response indicates that there may be a
group delay problem, then the BBC will require the intrusive group-delay
measurement to be made. The interruption required to make this measurement
will be accountable, unless the group delay variation subsequently proves
to be in specification.
2.2.3 Ad Hoc
2.2.3.1 In addition to the periodic measurements described above, the BBC will
make random checks of all material aspects of transmitter performance.
In the first instance, the measurements will be made off-site. If the
measurements indicate that it is likely that a transmitter is failing
to meet the performance or other criteria, the BBC may require CTI to
demonstrate the performance of that transmitter to the satisfaction of
the BBC within five working days of the BBC giving notice to CTI. The
tests included in this process
2
will be at the discretion of the BBC, and may be more extensive than
those required by paragraph 2.2.2.2 above. CTI will co-operate with
this process by providing access to the relevant Station and suitable
test equipment free-of-charge. The BBC reserves the right to also make
the measurements using its own test equipment. Any interruptions to
service required to make Ad-hoc measurements under this clause will be
Accountable Incidents unless CTI are subsequently exonerated.
2.2.4 Auditing
2.2.4.1 The BBC may require CTI to disclose, free-of-charge to the BBC, other
Station-specific information pertinent to this Agreement for
correlation with Incident reports and for general auditing purposes.
Such information may include, but not be limited to WT Act licence
details, telemetry data, and auditable information which can confirm
the correct operation of a Station over an extended period. CTI shall
maintain sufficient books and records to ensure this information can
be obtained and shall retain records of such information for the
duration of this Agreement, or in the case of a dispute, for such a
greater length of time as is necessary to resolve it. The BBC accept
that raw (unprocessed) status data will only be automatically retained
for a period of 30 days due to its volume.
2.3 Standards
2.3.1 Performance Classification
2.3.1.1 Performance limits are defined as follows:
Operating Limits The Performance Standards expected from a Station under
normal operating conditions.
Failure Limits The Performance Standards at which a significant number
of viewers with satisfactory receiving installations who
normally receive a service from a Station would not
receive a useable signal.
2.3.2 Measurements
2.3.2.1 Measurements undertaken by CTI shall be carried out with the test
equipment listed in Table 1, and using techniques agreed with the BBC.
All such test equipment must have a current certificate of
calibration, and documentary evidence of this fact must be recorded
with measurement results. Any changes to the methods of measurement or
type of test equipment employed by CTI must be agreed with the BBC in
advance.
2.3.3 [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
.....................................................................
3
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
3.[*]
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
5
[*]
3.1.5 Logging Requirements
3.1.5.1. CTI shall record the following information for every Station as part
of the continuous monitoring process outlined in paragraph 0.0.0.:
i) the date, time and duration in whole seconds of Accountable
Incidents
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
6
ii) the date, time and duration in whole seconds of Non-accountable
Incidents
3.1.6 Reportable Incidents
3.1.6.1 All Incidents are Reportable.
3.2 Operational
3.2.1 General
3.2.1.1 CTI will notify the BBC as soon as reasonably possible upon becoming
aware of a Reportable Incident. Where practicable, CTI will also
inform the BBC of the likely duration of the Reportable Incident, and
the steps being taken to rectify it.
3.2.1.2 The detailed Incident reporting procedure will comprise part of the
SLA, but it will be based on the following summary requirements.
3.2.2 Relationships
3.2.2.1 Routine operational business will be conducted on a day-to-day basis
between the BBC and CTI nominated operational points-of-contact,
copying information to the relevant contractual representatives as
necessary. If a dispute arises, it should be escalated to the
nominated contractual representatives of the parties.
3.2.3 Incident Reports
3.2.3.1 General
3.2.3.1.1 Incident reports will only be initiated for Incidents lasting 60
seconds or more.
3.2.3.1.2 The Incident reporting procedure will vary depending on the severity
of the Incident, and the type of Station affected. An indication of
the BBC's initial reporting requirements is given in Table 2 below.
Both the BBC and CTI recognise that these requirements may need to be
modified in the light of operational experience, and so the reporting
mechanism will be subject to a joint annual review.
Table 2
OPERATIONAL PRIORITY STATIONS OTHER STATIONS
----------------------------------------------------------------------
REPORT TYPE 1 2 3 1 2 3
---------------------------------------------------------------------------------------------------------
INCIDENT TYPE
---------------------------------------------------------------------------------------------------------
Failure to transmit the multiplex X X
---------------------------------------------------------------------------------------------------------
Transmission of Wrong Programme X X
---------------------------------------------------------------------------------------------------------
Failure to transmit a decodable X X
multiplex
---------------------------------------------------------------------------------------------------------
RF parameters below failure limit X X
---------------------------------------------------------------------------------------------------------
Unavailable ES above failure limit X X
---------------------------------------------------------------------------------------------------------
Radiated COFDM BER above failure X X
limit
---------------------------------------------------------------------------------------------------------
Transport stream invalid X X
---------------------------------------------------------------------------------------------------------
Failure to transmit the SI X X
---------------------------------------------------------------------------------------------------------
Failure to transmit other component X X
part(s)
---------------------------------------------------------------------------------------------------------
RF parameters below operating limit X X
---------------------------------------------------------------------------------------------------------
COFDM BER above operating limit X X
---------------------------------------------------------------------------------------------------------
3.2.3.2 Report Type 1
3.2.3.2.1 A telephone report summarising the nature of the Incident shall be
made by the CTI Operational Point-of-Contact to the BBC Operational
Point-of-Contact within 5 minutes of the Incident being reported
manually or electronically to the TOC, and again within 5 minutes of
the end of the Incident. A written report shall be issued by the CTI
operational point-of-contact to the BBC Operational Point-of-Contact
and the BBC Representative within 10 minutes of end of the Incident.
3.2.3.3 Report Type 2
3.2.3.3.1 A written report shall be issued by the CTI operational point-of-
contact to the BBC Operational Point-of-Contact and the BBC
Representative within 10 minutes of the Incident being reported
manually or electronically to the TOC, and within 10 minutes of the
end of the Incident.
7
3.2.3.4 Report Type 3
3.2.3.4.1 The Incident details shall be included in the monthly contractual
report.
3.2.4 Planned Interruptions
3.2.4.1 CTI shall issue a calendar of Planned Interruptions proposed for the
succeeding 12 months on a monthly basis to the BBC Operational Point-
of-Contact, and copied to the BBC Representative.
3.2.4.2 Actual requests for BBC agreement to Planned Interruptions shall be
made by CTI as far in advance as possible, and in any case not less
than 14 days in advance of the commencement date requested for the
work.
3.2.4.3 Exceptionally, CM may need to request BBC agreement to a Planned
Interruption with less than 14 days' notice. The BBC will use
reasonable endeavours to consider such requests, but does not
guarantee to do so. Significant levels of short-notice Planned
Interruptions will invoke the escalation procedures.
3.2.4.4 Text-based confirmation of agreed Planned Interruptions shall be
issued by the CTI operational point-of-contact to the BBC Operational
Point-of-Contact, and copied to the BBC Representative both at the
time of the planning and at the time the work is scheduled to take
place.
3.3 Contractual
3.3.1 General
3.3.1.1 The detailed Contract reporting procedure will comprise part of the
SLA, but it will be based on the following summary requirements:
3.3.2 Relationships
3.3.2.1 Routine contractual business will be conducted between the BBC and
CTI nominated contractual representatives.
3.3.3 Performance Reporting
3.3.3.1 A Contractual report shall be sent by CTI to the BBC Representative
on or before the 10th of each calendar month. The exact format of the
report will be defined during the first six months of this Agreement,
but will cover the following points as a minimum:
3.3.3.2 For the previous month
i) Unweighted Accountable performance by transmission.
ii) Unweighted. Non-accountable performance by transmission.
iii) Weighted Accountable performance by transmission.
iv) Weighted Non-accountable performance by transmission.
v) Response time performance against target for Stations in
vi) Table 3.
vii) Response time performance against target for other Stations.
viii) Commentary expanding on significant variances from the target.
3.3.3.3 For the previous six months
i) Average unweighted Accountable performance by transmission.
ii) Average unweighted Non-accountable performance by transmission.
iii) Average weighted Accountable performance by transmission.
iv) Average weighted Non-accountable performance by transmission.
v) Service Credits incurred in the month of the report.
8
3.3.4 Meetings
3.3.4.1 The BBC and CTI Contract Representatives shall meet monthly, or less
frequently by mutual agreement, to undertake a contract performance
review.
3.4 Information Access
3.4.1 CTI will provide an on-line data service. CTI are also to maintain an
up-to-date database containing all Reportable Incident details. Such
details will be maintained for at least the term of this Agreement.
The BBC shall be given on-line access to this database by CTI from
two separate locations to enable it to check the accuracy of fault
reporting, and for ad-hoc performance enquiries.
3.4.2 The database shall contain as a minimum for each Station:
i) technical details
ii) transmitter maintenance team identity
iii) all Incident reports as issued to the BBC
iv) Incident dates and durations
v) Incident details
vi) Incident response time
vii) current availability figure on a monthly basis
viii) historical availability figures on a monthly basis
ix) service message archive
3.4.3 The BBC requires CTI to provide a customised database Graphical User
Inter-face (GUI) which will permit the production of ad-hoc enquiry
reports by the BBC in real time. It is intended that the design of
this GUI will be finalised by agreement between the parties during
the first six months of this Agreement, and the BBC and CTI agree to
progress this in a timely fashion and in good faith.
4 PUBLIC ACCOUNTABILITY SERVICES
4.1 VIEWER COMPLAINTS
4.1.1 If CTI receives complaints from members of the public about problems
with receiving the BBC multiplex or otherwise relating to the BBC's
programmes, it shall not make comment but refer all such members of
the public to the appropriate BBC Customer Services department. CTI
shall only discuss problems with its network of dealer contacts
referred to in 2.1.2 above.
5 PERFORMANCE MEASURES [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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9
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
10
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
11
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
12
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
13
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
14
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
15
[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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SCHEDULE 9
FORM OF PARENT COMPANY GUARANTEE
THIS GUARANTEE is made the 10th day of February 1998 BETWEEN:
(1) CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD whose registered office is at
Warwick Technology Park, Gallows Hill, Xxxxxxxxx Xxxx, Xxxxxxx XX00 0XX
(the "GUARANTOR"); and
(2) THE BRITISH BROADCASTING CORPORATION, a corporation incorporated under
Royal Charter, whose principal office is at Xxxxxxxxxxxx Xxxxx, Xxxxxxxx
Xxxxx, Xxxxxx X0X 0XX (the "BBC").
WHEREAS
(A) By an agreement of even date between the BBC and CTI, CTI has agreed to
provide certain transmission and related services to the BBC (the
"TRANSMISSION AGREEMENT").
(B) CTI is a wholly owned subsidiary company of the Guarantor as defined in the
Companies Xxx 0000.
(C) The Guarantor has agreed to guarantee (upon and subject to the terms set
out in this Guarantee) the due performance and observance by CTI of all its
obligations under the Transmission Agreement.
IN CONSIDERATION of the BBC having agreed to enter into the Transmission
Agreement, it is hereby agreed as follows:
1 DEFINITIONS
In this Guarantee terms and expressions defined in the Transmission
Agreement shall, save where the context otherwise requires, have the same
meanings herein.
2 GUARANTEE OF PERFORMANCE
2.1 The Guarantor hereby unconditionally and irrevocably guarantees to the BBC
the due and punctual performance and observance by CTI of all the
obligations of CTI under and pursuant to the Transmission Agreement and
agrees to indemnify the BBC on an after-tax basis against all losses,
liabilities, costs, charges, expenses, actions, proceedings, claims and
demands which the BBC may suffer through or arising from any breach by CTI
of its obligations under and pursuant to the Transmission Agreement.
Without prejudice to the provisions of clause 3 of this Guarantee, the
amount which the BBC shall be entitled to recover from the Guarantor
hereunder in respect of or arising from any breach or default by CTI in the
performance of its obligations or liabilities under or pursuant to the
Transmission Agreement shall not exceed the amount for which CTI itself is
or would be liable in respect of such breach or default, save that the
foregoing limitation does not apply in respect of costs and expenses
incurred by the BBC in enforcing the Guarantor's obligations under this
Guarantee.
2.2 If and whenever CTI defaults for any reason whatsoever in the performance
of any obligation or liability undertaken or expressed to be undertaken by
it under or pursuant to the Transmission Agreement, the Guarantor shall
upon demand perform (or procure performance of) and satisfy (or procure the
satisfaction of) the obligation or liability in regard to which such
default has been made in the manner prescribed in the Transmission
Agreement and so that the same benefits shall be conferred on the BBC as it
would have received if such obligation or liability had been duly performed
and satisfied by CTI.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
3 PRIMARY OBLIGATION
3.1 The Guarantor is deemed to be a principal debtor in respect of its
obligations under this Guarantee and not merely a surety and accordingly
shall not be discharged nor shall its liability be affected by any act,
omission or means whereby it would not have been discharged or its
liability would not have been affected if it had been a principal debtor.
3.2 The BBC shall not be obliged, before enforcing this Guarantee, to have:
3.2.1 taken any action or proceedings against CTI; or
3.2.2 obtained any judgment against CTI; or
3.2.3 proven in any winding-up of CTI or agreed with CTI (or any
administrator, liquidator, receiver or similar person) the amount of
any liability of CTI to the BBC; or
3.2.4 enforced any other security held by it in respect of the obligation of
CTI under the Transmission Agreement; or
3.2.5 exercised, levied or enforced any distress, diligence or other process
of execution against CTI.
3.3 This Guarantee shall be in addition to, and not in substitution for, any
rights or remedies that the BBC may have against CTI arising under or in
respect of the Transmission Agreement or otherwise and may be enforced
without first having recourse to any such rights.
3.4 The liability of the Guarantor under this Guarantee shall not be
diminished by any matter (including without limitation any amendment to
or variation of the Transmission Agreement, or any assignment of this
Guarantee or any administration or winding-up order) that might restrict
the ability of the BBC to bring any action or proceedings against CTI
4 CONTINUING GUARANTEE
4.1 This Guarantee shall be a continuing guarantee and shall continue in
force and effect irrespective of the enforceability of any other
provision of the Transmission Agreement.
4.2 Neither the winding-up, liquidation, dissolution, bankruptcy or any other
disability, limitation, incapacity, event or circumstance in relation to
the Guarantor or CTI nor any change in their respective certificates of
incorporation, memorandum and articles of association, status, function,
control or ownership shall terminate the liability under this Guarantee.
4.3 This Guarantee shall terminate when all obligations to be performed or
discharged by CTI under the Transmission Agreement have been irrevocably
performed or discharged.
4.4 This Guarantee is in addition to and without prejudice to and not in
substitution for or derogation of any other rights or security held by
the BBC or any person for whose benefit this Guarantee is given in
respect of the performance and observance of the obligations of CTI under
the Transmission Agreement and shall extend to any costs, charges and
expenses reasonably incurred by the BBC in enforcing or seeking to
enforce this Guarantee.
5 REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the BBC that:
5.1 it has audited assets of more than (Pounds)100 million;
5.2 it has the power to enter into, perform and comply with all of its
obligations under this Guarantee;
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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5.3 the execution and performance of this Guarantee does not breach its
constitutional documents or any agreement by which it is bound;
5.4 this Guarantee has been duly authorised by it and all necessary consents
and authorisations required by it in relation to this Guarantee have been
obtained and are in force; and
5.5 all other actions, conditions and things required to be taken, fulfilled
and done in order to enable it lawfully to enter into and exercise its
rights and perform and comply with its obligations under this Guarantee,
have been taken, fulfilled and done.
6 ASSIGNMENT AND SUCCESSORS
6.1 The BBC shall be entitled to assign the benefit of this Guarantee to any
firm, person or company to whom or to which the BBC shall make an
assignment of its interest under the Transmission Agreement.
6.2 The Guarantor shall not assign or otherwise transfer, dispose of or part
with any of its rights or obligations under this Guarantee to any person
or deal in any other manner with this Guarantee without the prior written
consent of the BBC, such consent not to be unreasonably withheld. Any
purported assignment in violation of this sub-clause 6.2 shall be
ineffective.
7 JURISDICTION
7.1 Other than as set out above this Guarantee will be governed by and
construed and interpreted in accordance with English law, and the parties
will be subject to the non-exclusive jurisdiction of the English courts.
8 NOTICES
8.1 Any notice to be served by either party shall be in writing and shall be
sent to the following addresses:
GUARANTOR The Company Secretary
Castle Transmission Services (Holdings) Ltd
Warwick Technology Park
Gallows Hill
Xxxxxxxxx Xxxx
Xxxxxxx XX00 0XX
BBC Director, Policy and Planning
British Broadcasting Corporation
Xxxxxxxxxxxx Xxxxx
Xxxxxx X0X 0XX
Fax No. 0000 000 0000
8.2 Any notice, invoice or other document which may be given by either party
under this Guarantee will be deemed to have been duly given if left at or
sent by post (whether by letter or, where the parties agree in writing, in
any other form) or facsimile transmission to the address set out above or
to any other address notified to each other in writing in accordance with
this clause as an address to which notices, invoices and other documents
may be sent. Any such communication will be deemed to have been made to
the other party:
8.2.1 if sent by hand, when delivered;
8.2.2 if sent by post, 72 hours after the envelope containing such notice
was posted; or
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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8.2.3 if sent by facsimile, when the transmission of the facsimile is confirmed
delivered complete (if delivered on a business day) or if not at 9.30
a.m. (British Standard Time) on the next business day.
For the purposes of this Clause business day means 9 a.m. to 5 p.m. Monday to
Friday every week of the year except for English public and bank holidays. It is
further agreed that notices sent by facsimile will also be confirmed by sending
a signed copy by post, the copy to be posted within 24 hours of sending of the
facsimile.
IN WITNESS whereof this document has been executed as a Deed the day and year
first before written.
The COMMON SEAL of CASTLE
TRANSMISSION SERVICES
(HOLDINGS) LTD was hereunto affixed
in the presence of:
Director
Secretary
The COMMON SEAL of THE BRITISH
BROADCASTING CORPORATION was
hereunto affixed in the presence of:
Director
Secretary
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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Schedule 10
form of site Sharing Agreement
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
DATED 10 February 1998
THE BRITISH BROADCASTING CORPORATION
and
CASTLE TRANSMISSION INTERNATIONAL LTD
AGREEMENT
FOR THE USE OF BUILDING/ROOF-TOP SITE
SHARING FACILITIES
LINKLATERS & PAINES
One Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Ref: RMBD/GHC
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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THIS AGREEMENT is made on 10 February 1998 BETWEEN:
(1) THE BRITISH BROADCASTING CORPORATION whose principal address is at
Xxxxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx X0 A 1 AA ("the BBC"); and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD (registered number 3196207), a
company incorporated under the laws of England and Wales whose principal
place of business is at Warwick Technology Park, Gallows Hill, Xxxxxxxxx
Xxxx, Xxxxxxx XX00 0XX ("TX CO");
IT IS AGREED AS FOLLOWS:
1 The licensed use of the BBC's Building(s) (as described in the Building
Schedule(s) annexed hereto) will be provided by the BBC and taken by Tx Co
in accordance with and subject to the particulars and provisions set out in
the following attachments:
(a) The Building Licence Site Sharing General Conditions (Issue 1) or such
amended conditions as may from time to time be substituted by the BBC
with the prior consent in writing of Tx Co (the "GENERAL CONDITIONS")
(b) the "BUILDING SCHEDULES" (which term will include all Supplemental
Building Schedules and Termination Notices (if any) appended from time
to time in accordance with the provisions of the General Conditions
(collectively referred to as the "AGREEMENT")
2 The Agreement is entered into and forms part of a digital terrestrial
television services agreement made between Tx Co and the BBC of even date
(the "DTT SERVICES AGREEMENT")
3 To the extent that there is an inconsistency between the terms of the
Agreement and the DTT Services Agreement the terms of the DTT Services
Agreement shall prevail.
Signed by the BBC /s/ Xxxxxxxx Xxxxxxx Signed for Tx Co /s/ Xxxx Xxxx
-------------------- -----------------
Name Xxxxxxxx Xxxxxxx Name Xxxx Xxxx
--------------------------------- ----------------------------
Title Director of Policy and Planning Title Chief Operating Officer
-------------------------------- ----------------------------
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
THE BUILDING LICENCE SITE SHARING GENERAL CONDITIONS ("THE GENERAL
CONDITIONS") (ISSUE 1)
1 DEFINITIONS & INTERPRETATIONS
In these conditions except where the Agreement otherwise requires the
following expressions will have the meanings set out opposite them:
"THE BBC" means the British Broadcasting Corporation (acting through the
BBC Representative).
The "BBC REPRESENTATIVE" means a person or person(s) nominated to Tx Co
from time to time by the BBC to be its contractual point of contact. The
initial BBC Representative will be Xxxx Xxxxx.
"BUILDING(S)" means the land and/or building(s) and related structures
named in Clause 2 of the Building Schedule(s) (collectively "BUILDING(S)")
the use of which may (as the case may be) be deleted from the Agreement by
the removal of a Building Schedule pursuant to a Termination Notice or
added to the Agreement by the addition or substitution of one or more
Building Schedule(s) both in accordance with the provisions of General
Condition 16.
"BUILDING SCHEDULE(S)"/"SUPPLEMENTAL BUILDING SCHEDULE(S)" means those
Schedules appended to the Agreement describing Tx Co's Equipment for which
it is agreed Facilities at one or more of the Building(s) are to be
provided.
"CHARGES" means the charges and the additional charges (if any) for the
Facilities for Tx Co's Equipment in respect of the Building(s) set out in
Clause 5 of the Building Schedule(s).
"COMMENCEMENT DATE" means the date set out in Clause 3 of the Building
Schedule(s) in respect of each Building which is a date agreed between the
BBC Representative and Tx Co, being a date not less than 30 days after Tx
Co has given to the BBC Representative notice of Tx Co's intention to
install equipment relating to DTT Services in a particular Building.
"DTT SERVICES" means the services to be provided by Tx Co described or
referred to in the DTT Services Agreement.
"DUE DATE" means (in relation to any of the Charges and any other payments
due under the Agreement) the commencement of the relevant charging period
as described in the Building Schedule(s) (or where this is not applicable,
30 days after the issue of an invoice in respect of the same).
"EQUIPMENT HOUSING" means that part of the Building(s) used primarily to
house Tx Co's Equipment and as the same is described in Clause 10 of the
Building Schedule.
"FACILITIES" means the rights granted to Tx Co under the Agreement
including such shared use by Tx Co with the BBC or any third party
permitted by the BBC to use part or parts of the Building(s), and any other
antenna support structures belonging to or otherwise under the control of
the BBC at the relevant Building specified for this purpose) and any non-
exclusive Equipment Housing such rights are more particularly described in
General Condition 2.
"FORCE MAJEURE" means any event or circumstances beyond the reasonable
control of the defaulting party which shall include but not be limited to
Act of God, war, civil disturbance, statutory prohibition, Government
intervention, order or act of Government or local/public authority, acts of
terrorism, fire, lightning, flood, adverse weather conditions which cause
physical damage to property used to supply DTT Services, explosion,
accident, theft or vandalism, national strike action or industrial action
taken by a union provided that neither party
can rely on strikes, industrial action, theft or acts of vandalism where it
could reasonably have expected to have prevented them or the industrial
action or strike is by its own employees only.
"TX CO" means Castle Transmission International Ltd (acting the Tx Co
Representative).
"TX CO'S EQUIPMENT" means Tx Co's Equipment described in Clause 11 of the
Building Schedule(s) and otherwise installed at the Building(s) (which may
include antennas and equipment bays fixed on any of the locations described
in Clause 11 of the relevant Building Schedule(s) together with any
necessary associated equipment (e.g. transmitters/receivers, equipment
racking and cabling) located in the Equipment Housing or as elsewhere
permitted in the Building). A list of any new associated equipment shall be
provided by Tx Co to the BBC for approval as to its size, type and
positioning at least 14 days prior to the Commencement Date (which approval
will not be unreasonably withheld or delayed).
"TX CO REPRESENTATIVE" means the person(s) named in Clause 1 of the
Building Schedule(s) as the contact point or such alternative person whose
name shall be notified to the BBC from time to time by Tx Co and who should
be contacted initially by the BBC if there are any queries concerning the
Agreement.
"TX CO STATUTORY LICENCES" means any statutory licences required by TX Co
in accordance with the terms of the Agreement.
"PERMITTED USE" means Tx Co's use of the Building to provide DTT Services
for the BBC via Tx Co's Equipment and/or such other uses as may be
permitted from time to time by the BBC and as such Permitted Use is more
particularly described in Clause 6 of the relevant Building Schedule.
"PERMITTED CONTRACTOR(S)" means any one or more of the following:
(i) an employee of Tx Co;
(ii) an employee of a public telecommunications operator as defined
by the Telecommunications Xxx 0000 (or its statutory equivalent
for the country in question) being a person authorised to run a
public telecommunications system;
(iii) any third party contractor employed by Tx Co for this purpose,
provided the BBC has been given prior notification of the name
of such third party contractor prior to their arrival at the
Building to carry out any permitted works;
all of whom shall be permitted access by the BBC to the Building(s) subject
to these General Conditions.
"SPECIAL CONDITIONS" means any conditions set out in Clause 12 of the
relevant Building Schedule and which shall be supplementary to these
General Conditions save and to the extent that there is any conflict
between any Special Conditions and the General Conditions then and for the
relevant Building the Special Conditions shall prevail.
"TERM" means the term described in Clause 4 of the Building Schedule(s)
during which time the Facilities are available at the Building for the
relevant Tx Co's Equipment and which shall commence from and including the
Commencement Date and end on the termination of the DTT Services Agreement
or pursuant to the variation/termination provisions contained in the
General Conditions subject to any Special Conditions and any reference in
the General Conditions to the Term shall be treated as a reference to the
Term described in the Building Schedule(s) in which it appears.
"TERMINATION NOTICE" means a written notice in the prescribed form served
by either party on the other in relation to any one or more Building(s)
pursuant to General Condition 16 to expire at any
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time during the Term for the relevant Building(s) without reference to the
Commencement Date or the Agreement Date.
"VAT" means valued added tax or any substitute form of taxation on the
supply of goods and services.
2 THE FACILITIES
2.1 PERMITTED USE
2.1.1 Subject to any Special Conditions the BBC shall during the
subsistence of the Term:-
(a) permit TX Co, its employees and Permitted Contractor(s) to install,
retain during the Term, inspect, maintain, repair, renew and remove
as necessary (and at Tx Co's expense) Tx Co's Equipment located in
the Equipment Housing and in, under or over such other part or parts
of the Building(s) as the BBC shall from time to time approve (such
approval not to be unreasonably withheld or delayed) for the
Permitted Use described in Clause 6 of the relevant Building
Schedule;
(b) permit Tx Co to share use of such part or parts of the Building(s)
and such of the BBC's equipment therein (including any standby
generator equipment referred to in Clause 12 of the Building
Schedule(s)), in common with others including the BBC, as the BBC
may from time to time approve (such approval not to be unreasonably
withheld or delayed);
such permission being granted by the BBC to Tx Co to facilitate the
provision by Tx Co of DTT Services via Tx Co's Equipment or to
facilitate any other purpose that may from time to time be approved
by the BBC;
2.1.2 Subject to availability of space, where the existing Equipment
Housing, provided by the BBC, is insufficient for the provision of
DTT Services via Tx Co's Equipment the BBC shall permit additional
Equipment Housing to be erected and/or attached to the Building(s)
subject to the BBC's prior approval of the specifications and
positioning of the same and otherwise subject to the provisions of
the General Conditions (including General Condition 2.2.1).
2.2 EQUIPMENT HOUSING
2.2.1 The Equipment Housing shall be:-
(i) existing Equipment Housing located on the Building and made
available to Tx Co by the BBC; or
(ii) new Equipment Housing agreed with Tx Co and to be provided by
the BBC and erected by the BBC, at the BBC's cost where the
new Equipment Housing is required in order to provide services
to the BBC, or otherwise at Tx Co's cost; or
(iii) new Equipment Housing agreed with the BBC to be provided and
erected under the BBC's supervision by TX Co or any Permitted
Contractor(s), at the BBC's cost where the new Equipment
Housing is required in order to provide services to the BBC,
or otherwise at Tx Co's cost; and
in either (ii) or (iii) above any such Equipment Housing shall
be constructed and installed in accordance with plans
reasonably approved by the BBC and the costs incurred (whether
payable by Tx Co or the BBC as aforesaid) shall include any
costs properly incurred by the BBC in seeking any necessary
planning consents (including any architects', surveyors' and
other professional fees in relation to applying for such
planning consents) in addition to the BBC's reasonable
supervision costs.
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2.2.2 Unless Clause 5(b)(iii) of the Building Schedule(s) provides
otherwise, TX Co shall not be responsible for the payment of any
business rates assessed on any Building on which TX Co's Equipment
is located. Nevertheless, and in the BBC's entire discretion, if in
direct consequence of the installation of Tx Co's Equipment on the
Building additional business rates are payable by the BBC in respect
of the Building(s) or any part thereof and Tx Co's Equipment is
being used other than to provide DTT Services to the BBC then and in
such circumstances the BBC shall be entitled to obtain reimbursement
from Tx Co for the amount of such increase from time to time during
the Term.
2.23 Save only as provided herein and in General Condition 2.2.5 below
nothing in the Agreement shall confer on Tx Co any right to
exclusive occupation of any Equipment Housing, (including any new
Equipment Housing constructed on the Building(s) at Tx Co's cost),
unless there is a specific provision in the Building Schedule(s) to
the contrary, and Tx Co shall not object to the BBC permitting
others (including the BBC) to share occupation of any such Equipment
Housing on such terms as the BBC shall decide, provided such
occupation does not cause any resulting damage to Tx Co's Equipment
or adversely affect the performance of Tx Co's Equipment.
2.2.4 Save only as provided in General Condition 2.2.5 (or unless there is
a specific provision to the contrary in the relevant Building
schedule) any Equipment Housing, whether provided by the BBC, or Tx
Co, and irrespective of the costs paid by Tx Co, shall be deemed to
form part of the Building upon which it is situated control of which
shall vest in the BBC upon completion of its construction and
installation.
2.2.5 Notwithstanding the provisions of General Condition 2.2.4 where the
structure used to accommodate Tx: Co's Equipment consists of one or
more moveable equipment cubicles provided by Tx Co solely for Tx
Co's exclusive use, such Equipment Housing shall be treated as
belonging to Tx Co, and shall be deemed to form part of Tx Co's
Equipment for the purpose of interpreting the General Conditions and
shall remain in the ownership of Tx Co.
2.2.6 Tx Co will be responsible for the security of any Tx Co's Equipment
Housing used solely by Tx Go (including any moveable equipment
cubicles of the kind described in General Condition 2.2.5) and shall
provide the BBC with a key to the same to be retained by the BBC in
a suitable secure position for use in cases of emergency and to
enable the BBC to check that TX Co is complying with its obligations
under these General Conditions.
2.3 ACCESS GENERALLY
2.3.1 Subject to any additional provisions set out in Clause 7 of the
Building Schedule(s) and otherwise subject to any Special Conditions
the BBC grants to Tx Co the rights:-
(i) for Tx Co, its employees and Permitted Contractor(s) to use
any private access roads leading to the Building(s) which are
under the control of the BBC (either with or without motor
vehicles as the BBC shall decide) at all times and as often as
Tx Co shall reasonably require in order to gain access to the
Building(s); and
(ii) with effect from the Commencement Date of sufficient and
reasonable access to and egress from the Building(s) along
such routes in the Building(s) as the BBC shall from time to
time direct and as are reasonably necessary for Tx Co, its
employees and Permitted Contractor(s) in order to enjoy the
Facilities granted and comply with its obligations under these
General Conditions and to view and inspect any of Tx Co's
Equipment, provided Tx Co will be held responsible by the BBC
for the conduct of its employees and Permitted Contractor(s)
during any such visits to the Building(s) and Tx Co shall
procure that such persons comply with the relevant terms of
these General Conditions for this purpose;
5
(iii) for any representatives of the Radiocommunications Agency, and
the Director General of Telecommunications (or their statutory
successors) to enter the Building(s) insofar as necessary to
comply with any rights of inspection reserved or implied under
any Tx Co Statutory Licenses.
2.3.2 Notwithstanding the provisions of General Condition 2.3.1, Tx Co
acknowledges that the BBC may refuse entry to any Building(s) to a
person who does not produce a suitable identification pass or other
means of identification as a Tx Co employee or a Permitted
Contractor(s) or representative of any of the bodies referred to in
General Condition 2.3.1 (iii) above to the BBC's Representative or
his nominee at the Building(s) and further that the BBC may refuse
admittance to and require the removal from the Building(s) of any
person whose behavior the BBC's Representative reasonably considers
undesirable and/or likely to disrupt the safe operation of the
Building(s). Tx Co shall further be required to accept
responsibility for the behaviour of any such employees or Permitted
Contractor(s) attending the Building(s) on Tx Co's business and
shall procure that they behave in a responsible manner and comply
with any reasonable requests of the BBC's Representative or his
nominee.
2.3.3 The BBC may from time to time modify the means of access to the
Building(s) or to Tx Co's Equipment on the Building(s) made
necessary by any works in progress, or for reasons of safety, or
generally in the interests of orderly management, provided that any
such restrictions will not otherwise prevent the exercise of Tx Co's
right to use Tx Co's Equipment pursuant to the Agreement (which
modifications may include the imposition of reasonable instructions
regarding admittance to the Building(s) and the number, supervision
and times of visits which may from time to time be made by the BBC
and notified to Tx Co).
3 24 HOUR ACCESS
Where Tx Co requires to visit a Building which is not generally open to 24
hour access the BBC will use all reasonable endeavours to make local
arrangements for Tx Co which will enable 24 hour access to be available in
times of emergency, provided in such circumstances any reasonable
additional staff attendance costs incurred by the BBC are met by Tx Co.
4 THE CHARGES
4.1 For the duration of the relevant Term (and unless otherwise provided in the
Special Conditions commencing on the Commencement Date set out in the
relevant Building Schedule) Tx Co will pay to the BBC the Charges payable
in respect of each of the Building(s) on the Due Date, Including any review
of the Charges pursuant to the provisions of General Condition 4.2, or
until varied in accordance with the provisions of General Condition 16,
free of all deductions.
4.2 Unless otherwise provided in the Special Conditions, the BBC will be
entitled to review at any time the Charges payable under this Agreement,
but in the case of review other than:-
(i) in consequence of a change of Tx Co's Equipment or any other
change to the Facilities required by Tx Co; or
(ii) pursuant to General Condition 5.1;
then such reviews will not occur more often than at annual intervals (or
any greater intervals described in the relevant Building Schedule(s)), and
then only on the BBC giving Tx Co not less than three months' notice in
writing. Such variation in the Charges shall take effect from the date of
expiry of the said notice, and shall be to an amount which the BBC will in
its discretion determine as representing the current open market value for
the Facilities for Tx Co's Equipment.
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4.3 For an Agreement incorporating more than one Building Schedule if Tx Co
wishes to have common Charges payment date(s) and/or common Charges review
dates for all the Buildings at which Facilities are provided under the
Agreement the date(s) stated in Clause 5(c) of the Building Schedule will
apply, instead of those stated under Clause 5(a) of each Building Schedule,
with effect from the date of issue of the Building Schedule in which Clause
5(c) has been completed and shall continue until this provision is deleted
from any subsequent Building Schedule signed by Tx Co, Issued pursuant to
the General Conditions and appended to the Agreement.
5 ELECTRICITY
5.1 Subject to any Special Conditions, unless a separate supply is arranged,
the BBC will use all reasonable endeavours to supply electricity to Tx Co's
Equipment subject to Tx Co reimbursing the BBC's electricity supply charges
in accordance with the provisions of Clause 5(b)(i) of the Building
Schedule(s), including any periodic review of the same which the BBC may
require at any time during the Term if Tx Co's consumption, or the local
electricity/electricity supplier's tariff changes and/or where the BBC has
agreed to make emergency back-up generated supplies available. The BBC
shall not be required to discount its electricity supply costs to TX Co at
the Building(s) to a price below the standard unit tariff price of the
local supply company unless any discounted price obtained is solely
attributable to Tx Co's usage.
5.2 Tx Co agrees that the BBC will not be held responsible by Tx Co for any
failure or interruption to any electricity supply or be held liable for any
costs or damages arising in consequence of any failure to provide the same
caused other than in consequence of any negligent act or omission of the
BBC.
6 ALTERATIONS/ADDITIONS TO TX CO'S EQUIPMENT
6.1 Prior to carrying out any works or alteration or addition to Tx Co's
Equipment during the Term (including any ancillary DTT Services works
pursuant to General Condition 9.13) Tx Co will first notify the BBC
Representative of any such proposals, The BBC may in its discretion require
that any such works carried out on the Building outside the boundary of any
exclusively occupied Equipment Housing are supervised by a BBC employee
(the reasonable costs of which must be met by Tx Co as an additional
charge).
6.2 If any works proposed by Tx Co involve any alterations to any BBC property
(including any part of the Building(s) or any BBC equipment), the BBC may
consent to such works in its discretion, and may also impose conditions
including inter alia the performance of such works by a BBC employee or
otherwise under the supervision of the BBC and where such works are not
required in order to provide any enhanced DTT Services for the BBC as a
customer of Tx Co, the BBC may also impose a requirement for reinstatement
of any BBC property or equipment to its former condition at the
determination of the Agreement (or the determination of that part of the
Agreement relating to the Building(s) in question where applicable) at Tx
Co's cost.
6.3 Where any works involves any material change to the Facilities and/or to Tx
Co's Equipment as described in the Building Schedule(s), the BBC will be
entitled to require Tx Co to agree to vary the Building Schedule(s) in
relation to the Building(s) in question and where appropriate amend the
Charges in consequence.
6.4 Any works proposed by Tx Co requiring planning consent shall be subject to
General Condition 7.
7 PLANNING
Tx Co will not make any applications for planning permission in relation to
the Building(s) or Tx Co's Equipment or any Equipment Housing without the
prior approval of the BBC (such approval
7
not to be unreasonably withheld or delayed) provided that the BBC may
(unless otherwise agreed with Tx Co) require, as a condition of giving its
approval, that any such application for planning consent is made by the BBC
acting as agent for Tx Co and in such circumstances, (again unless
otherwise agreed with Tx Co) the BBC shall be entitled to recover from Tx
Co any reasonable costs which it incurs in acting as Tx Co's agent for this
purpose.
8 MAINTENANCE OF TX CO'S EQUIPMENT
8.1 Tx Co will ensure that Tx Co's Equipment is maintained in generally safe
repair and condition during the Term to the BBC's reasonable satisfaction.
8.2 Tx Co will use all reasonable endeavors not at any time electrically or
physically to impair, disrupt, interfere with or interrupt any of the BBC's
or any existing third party users' emissions and forthwith will use all
reasonable endeavours to ensure the repair of any faults in Tx Co's
Equipment which cause or may cause any such interference and will indemnify
the BBC against any costs properly incurred by the BBC or any third party
in remedying any such faults.
8.3 Tx Co will be responsible for keeping:-
(i) any Tx Co's Equipment comprising moveable equipment cubicles in
good repair and condition; and
(ii) the interior of any exclusively occupied Equipment Housing which
accommodates Tx Co's Equipment in a clean and tidy condition and
free from its own rubbish in accordance with any reasonable
requirements from time to time imposed by the BBC for the
benefit of the health and safety of the users of the Building(s)
(including Tx Co) and the efficient operation of the
Building(s); and
(iii) any doors or access openings comprised in any Equipment Housing
(or Tx Co's Equipment comprising moveable equipment cubicles)
free of obstruction.
9 OTHER OBLIGATIONS OF TX CO
TX CO WILL:
9.1 Not start using the Facilities unless or until:-
(i) Tx Co has obtained any requisite Tx Co Statutory Licences in
relation to the Facilities; and
(ii) the BBC has confirmed that any planning or other consents which
it has agreed to obtain on behalf of Tx Co have been obtained
(other than for Facilities already in place at the date of the
Agreement for which prior agreement shall be deemed to have
already been obtained); and
(iii) the BBC has Issued a Building Schedule(s) in respect of the
Facilities to be granted at the Building(s) in question and the
Building Schedule(s) has been signed by Tx Co, dated and annexed
to the Agreement; and
(iv) the agreed Commencement Date occurs.
9.2 Not start any installation of Tx Co's Equipment unless the person to be
employed by Tx Co to carry out any such installation is a Permitted
Contractor(s).
9.3 Where applicable and at its own expense retain throughout the Term Tx Co
Statutory Licences other than as provided in the DTT Services Agreement of
even date to be paid by the BBC, (including any Tx Co Statutory Licences
necessary in respect of any additional Building(s)
8
comprised in any Supplemental Building Schedule(s) added to the Agreement
in accordance with the provisions of General Condition 16.7).
9.4 Tx Co agrees to attach permanent identification to all Tx Co's Equipment in
common areas in a manner that has been agreed with the BBC Representative.
9.5 In addition to the Charges pay any other sums payable under the Agreement
(including any due pursuant to General Conditions 2.2, 3, 6.1, 6.3, 7,
9.11, 9.13(iii) and 16.9) on the Due Date.
9.6 Accept that no liability shall attach to the BBC or any BBC employees in
respect of the performance, safety or suitability for its purpose of any Tx
Co's Equipment unless the installation of the same was carried out or
otherwise supervised by or on behalf of the BBC as part of any maintenance
services and except insofar as the BBC is in breach of its maintenance
obligations in respect of any Tx Co's Equipment contained in any
maintenance services agreement.
9.7 Not erect or cause to be erected any buildings or structure or other
erection on the Building(s) save as provided in the Building Schedule(s).
9.8 Not tamper with or carry out any unpermitted works or otherwise cause any
damage to the Building(s) or any other equipment belonging to the BBC or
any third party located on the Building(s).
9.9 In exercising the rights granted under the Agreement, not do or permit
anything to cause interference, nuisance, annoyance, inconvenience, loss or
damage to the BBC.
9.10 Not (save as permitted in General Condition 2.3.1 above) permit or allow
any other persons to visit the Building(s) or handle Tx Co's Equipment
without the prior written consent of the BBC.
9.11 Ensure that while at the Building(s) its employees, and Permitted
Contractor(s) behave in a responsible manner and comply with all the BBC's
reasonable security and/or safety requirements and in the event of any
damage being caused to the Building(s) or to any property or equipment
thereon belonging to the BBC or to any third party in consequence of the
exercise of the Agreement by Tx Co, its employees or its Permitted
Contractor(s) (and not as the result of any negligent act or omission of
the BBC or its employees or contractors) to forthwith reinstate the same to
the BBC's reasonable satisfaction (or where the BBC reasonable requires
reimburse the BBC with the full costs and expenses properly incurred by it
in carrying out such reinstatement on Tx Co's behalf).
9.12 Where any of Tx Co's Equipment is to be placed on, above or below ground
outside the Building(s) boundaries and where the BBC is not otherwise able
to grant any rights of installation over such ground obtain, at its sole
expense, the agreement of any other party or parties having an interest in
such ground prior to installation and shall indemnify the BBC fully in this
respect.
9.13 Negotiate any ancillary DTT Services, including telephone connections which
it requires for its use on the Building, subject to obtaining the BBC's
prior consent (which will not be unreasonably withheld or delayed) to the
location of any equipment relating to the same on or under the Building and
outside the Equipment Housing, provided that Tx Co shall where such works
are not required in order to provide any enhanced DTT Services for the BBC
as a customer of Tx Co be responsible:-
(i) for arranging the removal of any such equipment at the end of
sooner termination of the Term at Tx Co's expense; and
(ii) for the costs of reinstating any damage caused to the Building
by such removal; and
(iii) for reimbursing the BBC's reasonable supervision costs.
9
9.14 Not erect or permit or suffer or allow to be erected any sign, notice or
advertisement on the Building(s) save only such sign(s) or notice(s) as the
BBC shall in its reasonable discretion permit and otherwise in accordance
with these General Conditions.
9.15 In no circumstances permit or suffer or allow any of its employees or
Permitted Contractor(s) or any other third party to reside at the
Building(s).
9.16 Not light or permit or suffer to be lit any fire on the Building or on any
access thereto nor block or obstruct nor permit or suffer to be blocked or
obstructed any fire exits or access for fire fighting equipment.
10 SWITCHING OFF TX CO'S EQUIPMENT
BY THE BBC
10.1 Without prejudice to the provisions of General Condition 8.3, Tx Co
acknowledges that the BBC will be entitled to switch off Tx Co's
Equipment:-
(i) in a life or property threatening emergency; or
(ii) where Tx Co's Equipment is causing interference to any of the
telecommunications services of other users of the Building
(including the BBC) and where the BBC has taken reasonable
measures to contact and inform Tx Co that such interference
exists and where practicable to do so the BBC has allowed Tx Co
a reasonable period to remedy any such interference caused by
Tx Co's Equipment, or has otherwise requested Tx Co to switch
off Tx Co's Equipment as required under General Condition 10.5,
but Tx Co has not done so and the interference still exists; or
(iii) if required to do so by a Government authority provided that
the BBC shall use its reasonable endeavours to inform Tx Co of
such requirement before Tx Co's Equipment is switched off; or
(iv) with the agreement and at the request of Tx Co; or
(v) where Tx Co has terminated its requirement for the Facilities
pursuant to General Condition 16.4 but has failed to remove Tx
Co's Equipment; or
(vi) where Tx Co is in material breach of any of the terms of the
Agreement and has not remedied such breach within a reasonable
time of receiving notice from the BBC requiring it to do so.
10.2 Tx Co will provide a switch on Tx Co's Equipment to enable it to be
switched off by the BBC in accordance with General Condition 10.1.
10.3 The BBC shall in the event of Tx Co's Equipment being switched off pursuant
to General Condition 10.1, notify Tx Co of this fact as soon as reasonably
practicable.
BY TX CO
10.4 Tx Co will be required to temporarily reduce power or switch off Tx Co's
Equipment by arrangement with the BBC Representative on being given
reasonable prior notice (or forthwith in the case of an emergency) where
the BBC considers the radiation level of Tx Co's Equipment is unsafe for
access to the relevant Building for essential works by the BBC, its
employees and contractors. In such circumstances Tx Co will be asked to
keep Tx Co's Equipment on reduced power or switched off until all such
persons and their equipment have completed the necessary
10
works and vacated the relevant part of the Building. The BBC will make
every reasonable effort to ensure such requests only occur at times when
there will be minimum disruption to DTT Services.
10.5 Without prejudice to the provisions of General Condition 8.3, in the event
of any interference being caused to any of BBC's emissions (or to those of
any other lawful third party users at the Building(s)) by Tx Co's
Equipment, Tx Co shall forthwith either eliminate the interference or where
there is interference which cannot be remedied in such time as the BBC
shall reasonably require, Tx Co shall switch off Tx Co's Equipment until
such time as the interference has been eliminated, the cost of all such
measures to be borne by Tx Co.
11 NO ENLARGEMENT OF RIGHTS
Tx Co acknowledges that the Agreement permits Tx Co to use the Facilities
in accordance with the Building Schedule(s) and that no provisions in the
Agreement are intended to create nor shall be treated or construed as
creating the relationship of landlord and tenant but merely that of the
provider and hirer (respectively) of services and Tx Co makes no claim in
this respect and further accepts that the BBC shall not be restrained by
anything contained in the Agreement from using the Building(s) and any
equipment (other than Tx Co's Equipment) for the purposes of the BBC's
business undertaking or permitting others to use the Building(s) and any
equipment (other than Tx Co's Equipment) including inter alia any non-
exclusive Equipment Housing and access ways (including building risers) as
the BBC may in its discretion decide.
12 INTEREST
If payment of the Charges or any other fees payable under the Agreement are
not made on the relevant Due Date, then without prejudice to any other
rights of the BBC, Tx Co agrees the BBC may charge interest (calculated on
a daily basis) on the outstanding amount from the Due Date until payment,
at the rate of 2% per annum above the base rate of Lloyds Bank plc
applicable during the time of non-payment, or where such rate cannot be
ascertained, at 2% per annum above the average of the base rates of the
London clearing banks in force from time to time during the period of the
delay (without prejudice to any other right or remedy of the BBC under the
Agreement).
13 VAT
13.1 All the Charges and other fees described in the Building Schedule or
otherwise payable under the General Conditions are exclusive of VAT which
shall be charged in addition thereto in accordance with the relevant law in
force at the time of making the relevant taxable supply and shall be
payable by the paying party only against receipt from the other of a valid
VAT invoice in respect thereof.
13.2 Where under the Agreement one party has agreed to reimburse or indemnify
the other in respect of any payment made or cost incurred by the other then
the first party shall also reimburse any VAT paid by the other which forms
part of its payment or costs incurred to the extent that such VAT is not
available for credit for the other (or for the representative member of the
other's VAT group) under Section 25 and 26 of the Value Added Tax Act 1994
(or any replacement or equivalent provision).
14 NO ASSIGNMENT OR SUB-CONTRACTING
14.1 This Agreement is personal to the parties hereto and they shall not assign,
transfer, sub-licence, share use or deal in any manner with the Agreement
or the rights herein contained other than as expressly herein provided.
11
14.2 Each of Tx Co and the BBC shall be entitled to transfer the Agreement to
any of its wholly owned subsidiaries provided that:-
(a) each party procures that the transferee is bound by a direct covenant
with the other party to observe inter alia all the terms of this
Agreement; and
(b) if any transferee ceases to be a wholly owned subsidiary of either the
BBC or Tx Co, as the case may be, the Agreement will be transferred
back to Tx Co or the BBC, or one of their wholly owned subsidiaries.
15 INDEMNITY (LIABILITY AND INSURANCE)
This Agreement forms part of the DTT Services Agreement. Accordingly, the
liabilities of the parties are as set out below.
15.1 Each party shall be responsible for the insurance of its property at the
Building(s).
15.2 Both parties must maintain insurance against any loss, damages, claims or
actions arising from:
(a) personal injury or death;
(b) public liability; and/or
(c) any other liability for which either is required by law to insure,
arising out of the performance of this Agreement.
15.3 Tx Co must maintain insurance cover adequate to cover the risks which it is
likely to incur in relation to the subject matter of this Agreement, with a
minimum of:
(a) primary public and product liability insurance in a form reasonably
acceptable to the BBC providing for payment of a sum up to (Pounds)50
million for any one occurrence (or in the annual aggregate for
product liability) and, in the case of third party property damage
arising out of the use of private vehicles, unlimited cover and, in
the case of third party property damage arising out of the use of
commercial vehicles, (Pounds)5 million in respect of one occurrence;
(b) employer's liability insurance sufficient to meet its statutory
requirements and sufficient to cover any liabilities to past or
present employees;
(c) all risks or loss or damage to property and business interruption
insurance in a form reasonably acceptable to the BBC in respect of
the Building(s) and all equipment used to provide the DTT Services
covering the full re-instatement value of all such assets and the
reasonable cost of any replacement transmission services from the
Building(s) or any other stations used to supply any part of the DTT
Services; and
(d) professional indemnity insurance of at least (Pounds)5 million per
year, commensurate with the nature of the risks undertaken in that
year.
15.4 Where requested by the BBC, Tx Co agrees to provide the BBC with a copy of
the relevant policy or policies or evidence of such insurance and its
material terms referred to in this General Condition 15 which shall be
treated as confidential information belonging to Tx Co. Tx Co will also
notify the BBC of any substantive change to the insurance programme
maintained by it and referred to in this General Condition 15 for the risks
covered.
15.5 Where Tx Co engages Permitted Contractor(s), it shall ensure that its
insurance includes cover for its liabilities In respect of the acts and
omissions of the Permitted Contractor(s) or that the
12
Permitted Contractor(s) have their own insurance with appropriate cover
in the light of the work to be undertaken by the Permitted
Contractor(s).
15.6 For purposes of this General Condition 15, "CONTRACTS" means this
Agreement, the DTT Services Agreement and any other agreement between
the parties relating to the subject matter of the Contracts.
15.7 Each of the BBC and Tx Co shall indemnify the other on an after-tax
basis against all claims or actions brought against the other by any
third party relating to:
(a) personal injury; or
(b) loss of, or damage to, property; or
(c) Harmful Interference (as defined in the DTT Services Agreement)
caused to analogue or digital broadcasts, excepting any such claims
made by viewers;
caused as a result of any breach of this Agreement or any wilful or
negligent act or wilful or negligent omission by the party from whom
indemnification is sought. Without limiting the generality of this
General Condition 15.7, Tx Co will indemnify the BBC on an after-tax
basis against any claims made against the BBC by any party as a result
of damage caused by Tx Co to the property of that party in installing,
maintaining or operating transmitters for provision of the DTT Services.
15.8 Each of the BBC and Tx Co will indemnify the other on an after-tax basis
against any loss incurred by the relevant party resulting from damage to
that party's property or injury to its employees or the employees of its
agents or sub-contractors arising out of any breach of any of its
obligations, warranties or undertakings contained in any of the
Contracts or any other agreements between the parties relating to the
provision of the DTT Services or any other negligent or wilful act or
omission of the party from whom an indemnity is sought.
15.9 The party from whom indemnification is sought shall have the right to
conduct any proceedings brought by a third party against the other party
or to settle any such proceedings subject to reimbursing the other party
any costs of such proceedings and any damages, costs and expenses
payable by the indemnified party arising out of those proceedings. Both
parties will notify the other as soon as possible of the existence of a
claim which is reasonably likely to give rise to a claim for
indemnification under this General Condition 15.
15.10 Neither party excludes or restricts liability for death or personal
injury resulting from its own negligence or from liability arising under
the Health and Safety at Work Xxx 0000 or any regulations made pursuant
to that Act.
15.11 Neither Tx Co nor the BBC shall be held responsible for the consequences
of any act or omission or misconduct of any third party, unless:
(a) such third parties are in the employment of or providing sub-
contracted services to either Tx Co or the BBC at the time the
incident takes place; or
(b) the party claimed against has recovered damages in respect of such
act, omission or misconduct directly from the relevant third party
or otherwise where it has recovered insurance (and in each such
case to the extent of such recovery or insurance claim) provided
that where such party is entitled to claim damages and/or recover
under such insurance policy it shall use all reasonable endeavors
to do so as soon as reasonably practicable.
15.12 The BBC, shall not be liable, whether in contract, tort, negligence,
breach of statutory duty or otherwise to Tx Co for loss of profits other
than any element of profit comprised in the Charges
13
(as defined in the DTT Services Agreement) or for any indirect, special,
incidental or consequential loss whatsoever arising out of its
performance of or failure to perform any of the Contracts or otherwise.
15.13 The BBC's liability for all matters under the Contracts, other than for
payment of the Charges (as defined in the DTT Services Agreement) or for
payment of any of the termination sums provided for in Clause 12.2 of the
DTT Services Agreement or for any sums payable in respect of Tx Co's
Equipment or in respect of the repudiatory breach of any of the Contracts
or in respect of the content indemnity contained in Clause 4.2.3 of the
DTT Services Agreement, shall be limited to one million pounds
((Pounds)1,000,000) in any year or, if greater, the amount recovered by
the BBC in respect of and to the extent attributable to such loss
pursuant to any insurance policy maintained by the BBC.
15.14 Tx Co's total aggregate liability in respect of all matters under or
arising out of the Contracts in any one year, including in relation to
the payment of liquidated damages and/or Service Credits (as defined in
the DTT Services Agreement), will be limited to the higher of the total
Charges (as defined in the DTT Services Agreement) payable by the BBC to
Tx Co in that year or the amount received by Tx Co in respect of and to
the extent attributable to any such loss pursuant to any insurance policy
maintained by Tx Co, whether such claim arises in contract, tort,
negligence, breach of statutory duty or otherwise.
15.15 Tx Co shall not be liable, whether in contract, tort, negligence, breach
of statutory duty or otherwise, to the BBC for loss of profits or for any
indirect, special, incidental or consequential loss whatsoever whether
incurred by the BBC or a third party arising out of its performance of or
failure to perform any of its obligations under the Contracts or
otherwise.
15.16 For the avoidance of doubt, Tx Co is liable to pay to the BBC any
liquidated damages and/or Service Credits (as defined in the DTT Services
Agreement) payable in accordance with the Contracts.
15.17 The Contracts set out the full extent of each party's obligations and
liabilities relating to the DTT Services whether in contract, tort,
negligence, breach of statutory duty or otherwise. In particular, there
are no conditions, warranties or other terms, express or implied, as to
satisfactory quality, fitness for purpose or of any other kind whatsoever
which are binding on Tx Co except as specifically set out in the
Contracts. Any other condition, warranty or other term relating to the
provision of the DTT Services or the sale of Tx Co's Equipment which
might otherwise have been implied into the Contracts by statute, common
law or otherwise is hereby excluded.
16 VARIATION AND/OR TERMINATION
BY EITHER PARTY:-
16.1 The BBC or Tx Co may determine the Agreement and/or any individual
Building Schedule by delivery to the other party of a final written
notice where:
(i) there has been a material breach of the Agreement in respect of
one or more of the Station(s) by the other party which has not
been rectified within 30 days of an initial written notice
being received by the defaulting party requiring that party to
do so; or
(ii) one party has become insolvent, bankrupt, or is in receivership
or administration.
16.2 The BBC or Tx Co may terminate the Facilities atone or more of the
Building(s) by the termination of the provisions of the Agreement insofar
as they relate to one or more of the Building(s) referred to in the
relevant Building Schedule(s) or by the termination of the provisions of
the Agreement in its entirety where either:
14
(i) there is an interruption of these Facilities due to an event of
Force Majeure which has continued for a period in excess of 3
months (and for the avoidance of doubt in such circumstances
the BBC shall not be liable for any loss to Tx Co or others
claiming through Tx Co as a result of such interruption); or
(ii) both Tx Co and the BBC consent to such early termination,
BY TX CO:-
16.3 Tx Co may terminate the Agreement on serving a valid Termination Notice
giving not less than six months' prior notice, to expire at any time
(without reference to the Commencement Date, or the Agreement Date, or
the Term).
16.4 Where the Agreement incorporates more than one Building Schedule Tx Co
may modify the Agreement by terminating its requirement for the
Facilities at one or more of the Building(s) and cancelling the relevant
Building Schedule(s) from the Agreement on serving on the BBC a valid
Termination Notice which gives not less than six months' notice to expire
at any time of its intention to cease using the Facilities at the
relevant Building(s).
16.5 Tx Co may vary the Agreement at any time during the subsistence of the
Agreement in accordance with the provisions of General Conditions 16.4
and 16.7, whereupon the Agreement shall continue in full operation and
effect as amended/extended.
BY THE BBC:-
16.6 Subject to any Special Conditions the BBC may terminate the Agreement, or
(where the Agreement incorporates more than one Building Schedule
terminate or modify the Facilities at one or more of the Building(s):-
(i) on serving on Tx Co a valid Termination Notice giving not less
than six months' prior written notice where the BBC's ability
to continue the Agreement or the provision of the Facilities in
respect of the relevant Building is prevented by an event
beyond the reasonable control of the BBC (which shall include
circumstances where the BBC is unable to renew its rights to
occupy any land or buildings comprised in the relevant
Building(s) and/or where renewal is only available on
unreasonable terms); or
(ii) on serving on Tx Co a valid Termination Notice giving not less
than twelve months' prior notice where the BBC requires all or
any part of the Facilities for the purposes of its undertaking;
(iii) forthwith, (and without prejudice to any right of action or
remedy of the BBC in respect of antecedent breach by Tx Co of
any of the obligations imposed on Tx Co under the Agreement),
where:
(a) any planning or other consent or licence for Tx Co's
Equipment is revoked; or
(b) if Tx Co permits any distress to be levied on Tx Co's
Equipment; or
(c) in the case of any payment to be made to the BBC by Tx Co
under the Agreement, such payment remains in arrears and
unpaid following the Due Date and where the BBC has given
written notice to Tx Co that Tx Co's Equipment will be
switched off and the Facilities terminated unless the BBC
receives the outstanding payment together with interest
within 30 days of the date of such written notice and that
period of 30 days has expired without payment having been
made;
15
then, and in each such case, the BBC may switch off Tx Co's
Equipment and determine the facilities at the relevant
Building(s) without incurring any liability to Tx Co for the
results of such act and Tx Co will indemnify the BBC against
any loss or claim it may incur as a result of such action or
liability.
GENERALLY:-
16.7 Any variation to the Agreement (including any additional Tx Co's
Equipment, variation in the Charges, or the addition or removal of any
one or more of the Building(s)), shall be recorded by the issue of:
(i) In the case of the addition of a Building; by a Supplemental
Building Schedule signed and dated by the parties and annexed to
the Agreement;
(ii) in the case of the variation of any of the terms in an existing
Building Schedule; by a replacement Building Schedule signed and
dated by the parties and annexed to the Agreement together with
an endorsement an the existing Building Schedule cancelling it
with effect from the date of the replacement Building Schedule;
(iii) in the case of the removal of a Building; by service of a valid
Termination Notice in accordance with the provisions of General
Conditions 16.4 or 16.6 together with an endorsement on the
existing Building Schedule cancelling it with effect from the
date of the expiry of the Termination Notice.
16.8 Following termination of the Agreement by either party or following the
cancellation of a Building Schedule pursuant to any of the provisions of
General Condition 16, the Charges in respect of the relevant Building(s)
shall cease to be payable with effect from the effective termination
date, but without prejudice to the rights of either party to pursue any
action or remedy in respect of any antecedent breach by the other of any
of its obligations under the Agreement (subject to the provisions of
General Condition 15); and without prejudice to the rights of the BBC to
recover any Charges or other sums payable under the Agreement properly
due and outstanding prior to the date of such termination.
16.9 Unless relieved from its obligation by any Special Conditions, Tx Co
shall within 30 days following the expiration of any valid Termination
Notice procure the removal by a Permitted Contractor(s) of all Tx Co's
Equipment from the relevant Building(s) to which such notice relates, and
make good any damage caused by such removal to the BBC's reasonable
satisfaction or in default of making good as aforesaid shall pay to the
BBC on demand the costs properly incurred by the BBC in so removing
and/or reinstating.
17 FURTHER OBLIGATIONS OF THE BBC
THE BBC WILL:
17.1 subject to obtaining all necessary planning and other consents, provide
the Facilities;
17.2 maintain in reasonable repair and condition the exterior and structure of
any Equipment Housing (for the avoidance of doubt this will not include
any Tx Co's Equipment comprising moveable equipment cubicles) during the
Term;
17.3 use all reasonable endeavours, to prevent any equipment located at the
Building(s) and under the BBC's control from causing any interference to
Tx Co's Equipment;
17.4 provide invoices in respect of the costs and expenses of any supervision
or other works performed by the BBC pursuant to the provisions of General
Conditions 2.2.1, 3, 6.1, 6.3, 7, 9.11, 9.13(iii) and 16.9 (where
applicable) such costs and expenses to be calculated at a reasonable
16
daily rate for any day or part of a day's attendance at the relevant
Building(s); such daily rates to be made available to Tx Co by the BBC on
request;
provided (and for the avoidance of doubt) the BBC will not be in breach of
any of its obligations in this General Condition 17 or elsewhere in the
Agreement where it is prevented from so doing in consequence of an event of
Force Majeure.
18 NOTICES
18.1 Notices (including Termination Notices) invoices or other documents
required or permitted to be given under the Agreement shall be in writing
and shall be sent to the following addressed:-
for Tx Co:
Chief Executive Officer
Castle Transmission International Ltd
Warwick Technology Xxxx
Xxxxxxx Xxxx
Xxxxxxxxx Xxxx
Xxxxxxx
XX00 0XX
Fax No: 00000 000000
for the BBC:
Director of Policy and Planning
The British Broadcasting Corporation
Xxxxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxx X0X 0XX
Fax No. 0000 000 0000
18.2 Any notice, invoice or other document which may be given by either party
under the Agreement will be deemed to have been duly given if left or sent
by post (whether by letter or, where the parties agree in writing, in any
other form) or facsimile transmission to the address set out above or to
any other address notified to each other in writing in accordance with this
General Condition as an address to which notices, invoices and other
documents may be sent. Any such communication will be deemed to have been
made to the other party:-
(a) if sent by hand, when delivered;
(b) if sent by post; 72 hours after the envelope containing such notice was
posted; or
(c) if sent by facsimile, when the transmission of the facsimile is
confirmed delivered complete (if delivered on a business day) or if not
at 9:30 a.m. (British Standard Time) on the next business day.
For the purposes of this General Condition, "business day" means 9:30 a.m.
to 5:00 p.m. Monday to Friday every week of the year except for English
public holidays. It is further agreed that notices sent by facsimile will
also be confirmed by sending a signed copy by post, the copy to be posted
within 24 hours of sending the facsimile.
17
19 DISPUTES
19.1 Any complaints, disputes or problems (each an "ISSUE") relating to this
Agreement will be escalated as set out in this Clause 19.
19.2 Any Issue will be referred in the first instance to the BBC Representative
and either the Project Manager or the Service Manager as appropriate. The
BBC and Tx Co will procure that their respective representatives discuss in
good faith any Issue with a view to resolving it. If an Issue is not
resolved to the satisfaction of either party within 30 days of both parties
having first become aware of it, then either party may refer it to the
Service Management Board.
19.3 If an Issue is referred to the Service Management Board, then each party
must procure that their representatives on the Board discuss the Issue in
good faith at the next meeting of the Service Management Board with a view
to resolving it. Either party may convene a meeting of the Service
Management Board to be held within 14 days of an Issue being referred to
it. If the Issue is not resolved to the satisfaction of both parties within
7 days of the meeting of the Service Management Board, then either party
may require that the Issue is dealt with under Clause 19.4.
19.4 Where an Issue is to be dealt with under this Clause 19.4, the parties will
ensure that, for the BBC, the Director of Policy and Planning, and for CTI,
the Chief Operating Officer, will meet together with a view to resolving
the Issue, The parties will allow 30 days from the date of escalation of
the matter for such consultation or discussions to take place before
referring the Issue to adjudication or initiating any arbitration or other
legal proceedings.
19.5 If an Issue is not resolved pursuant to Clause 19.4 and it relates solely
to matters of an engineering or technical nature, either party may refer it
for adjudication to the President for the time being of the Institution of
Electrical Engineers, or his nominee. The President or his nominee shall
act as an expert, not an arbitrator. The party referring any Issue for
adjudication must deliver to the expert and the other party a notice
setting out the matters in dispute and any relevant supporting evidence.
The other party shall be entitled to reply to the notice and such evidence,
delivering such reply to the expert and the party referring the Issue.
Otherwise, the expert shall be entitled to decide on the procedure he or
she wishes to adopt. Any determination of the expert must be in writing and
shall be final and binding on both parties, failing any manifest error on
the face of the decision. Unless the expert determines otherwise, both
parties will bear their own costs of the determination and half the costs
of the expert.
19.6 If an Issue is not resolved pursuant to Clause 19.4 and it does not relate
solely to matters of an engineering or technical nature, either party may
refer it to mediation in accordance with the Centre for Dispute Resolution
procedures then in force. If after 30 days either party believes that
mediation has not resolved the Issue, then either party may proceed to
litigation. Unless agreed otherwise, each party will bear its own costs of
the mediation and half the costs of any third party involved.
19.7 Except where clearly prevented by the nature of the Issue, the parties must
continue performing their respective obligations under this Agreement while
any Issue is escalated in accordance with this Clause 19.
20 NON-WAIVER
20.1 The failure of either the BBC or Tx Co to enforce the terms of the
Agreement will not constitute a waiver and shall not affect the right to
enforce any terms later.
20.2 The provisions of the Agreement are severable and if for any reason any
provision should be or become void, unenforceable or invalid, the rest of
the Agreement will remain in full force and
18
effect and the parties will seek to agree additional or amended provisions
to replace the void, unenforceable and invalid provision.
21 CONFIDENTIALITY
21.1 The BBC and Tx Co undertake that while the Agreement is in force they and
their employees and contractors (including any Permitted Contractor(s))
shall keep confidential and not disclose to any third party the contents of
the Agreement or any information which they have received from each other
or which they have made available verbally or in writing in relation to
their respective businesses or operations without the written consent of
the other of the aforegoing, such confidentiality shall include any
technical, operational or financial information relating to the
broadcasting business of the BBC or pertaining to any contractual
relationship between the BBC and Tx Co and/or any third party.
21.2 The obligations set out in General Condition 21.1 shall not apply to
information which is or has become public knowledge (unless as a
consequence of a breach of General Condition 21.1) and shall also not apply
to information either party is required to disclose by order of a court or
order of a competent authority nor to information disclosed in order to
maintain any listing on the stock exchange or disclosed pursuant to
obligations in Tx Co Statutory Licenses.
22 GOVERNING LAW
22.1 The Agreement in so far as it relates to Building(s) in Scotland shall be
governed and construed in accordance with the law of Scotland and the
jurisdiction of the Scottish courts shall apply.
22.2 The Agreement in so far as it relates to Building(s) in England and Wales
(and the Agreement as a whole where it includes one or more Building(s) in
England and Wales) shall be governed and construed in accordance with
English law and the jurisdiction of the English courts shall apply.
22.3 The Agreement in so far as it relates to Building(s) in Northern Ireland
shall be governed and construed in accordance with the law of Northern
Ireland and the jurisdiction of the Northern Irish courts shall apply.
19
BUILDING SCHEDULE
-------------------------------------------------------------------------------------------------------------------------
1 "TX CO" Contact and address for Notices:
Tx Co Representative (referred to as the Tx
Castle Transmission International Limited Co Representative in the DTT Services
whose registered office is at Warwick Agreement) see General Condition 18
Technology Park, Gallows Hill, Xxxxxxxxx
Xxxx, Xxxxxxx XX00 0XX
-------------------------------------------------------------------------------------------------------------------------
2 "BUILDING" 3 "COMMENCEMENT DATE"
------------------------------------------------------------
4 "TERM" see Special Condition 11.7
below (minimum period is the
term of the DTT Services
Agreement)
-------------------------------------------------------------------------------------------------------------------------
5 "CHARGES" (i) amount: (Pounds)l + VAT per annum
from: The Commencement
Date
(a) Licence Fee Charges (ii) payable: in
accordance with the
provisions of the DTT
Services Agreement
(iii) reviewable: see
Special Condition
11.5 below
-------------------------------------------------------------------------------------------------------------------------
(b) additional Charges (if any) e.g. (i) electricity: a reasonable sum according to use
(ii) capital cost: none
(iii) other: none
-------------------------------------------------------------------------------------------------------------------------
(c) (i) common payment date(s) for the Charges: in accordance with the provisions of Clause 11.1 and
11.2 of the DTT Services Agreement
(ii) common Charges review dates: N/A
-------------------------------------------------------------------------------------------------------------------------
6 "PERMITTED USE": Services under the D17 Services Agreement
(including location of equipment provided by
BT as the distribution network service
provider)
-------------------------------------------------------------------------------------------------------------------------
7 "ACCESS" None
Special Access provisions (if any)
-------------------------------------------------------------------------------------------------------------------------
8 "THE BBC REPRESENTATIVE" the BBC Representative named in the DTT
Services Agreement
-------------------------------------------------------------------------------------------------------------------------
9 "EQUIPMENT HOUSING" (IF ANY) PROVIDED BY THE BBC:
-------------------------------------------------------------------------------------------------------------------------
10 "TX CO'S EQUIPMENT"
-------------------------------------------------------------------------------------------------------------------------
20
--------------------------------------------------------------------------------
11 "SPECIAL CONDITIONS" (IF ANY)
11.1 Subject to the provisions of Special Condition 11.2, the BBC may relocate
any Tx Co's Equipment at any time to a different location on the Building
(or to a replacement Building) by serving on Tx Co a Termination Notice
giving not less than three months' prior notice. The modified Facilities
will be recorded by the issue of a replacement Building Schedule pursuant
to General Condition 16.7(ii).
11.2 Relocation of Tx Co's Equipment by the BBC pursuant to Special Condition
11.1 will be in the BBC's discretion and subject to:-
(a) prior consultation with Tx Co in accordance with the terms of the DTT
Services Agreement;
(b) no resulting increase in the Charges in consequence;
(c) no resulting diminution of the Facilities available to Tx Co in
consequence;
(d) any necessary relocation works being performed by the BBC, or its
contractor and at the BBC's expense.
11.3 Either party may terminate the Agreement, (or where the Agreement
incorporates more than one Building Schedule terminate the Facilities at a
Building) where the facilities are no longer required for the purposes of
the DTT Services, by serving on the other a Termination Notice giving not
less than three months' prior notice.
11.4 For the purposes of General Condition 16.6(ii) the period of notice
therein shall be reduced from 12 to 3 months.
11.5 For the purposes of General Condition 4.2 reviews shall NOT take place
during the Term.
11.6 The Permitted Use of Tx Co's Equipment described in Clause 6 shall be
limited to use for the performances of the DTT Services Agreement and not
the provision of any other third party service without the express prior
written consent of the BBC (which without the express prior written
consent of the BBC (which consent may, in the BBC's absolute discretion,
be granted subject to the negotiation of any necessary modifications to
the Agreement (including modifications to the financial terms).
11.7 The Agreement will continue in force in relation to the Permitted Use and
in respect of Tx Co's Equipment described in Clause 6 above, subject to
General Condition 16, and any of these Special Conditions, until either
party gives to the other not less than 12 months' prior written notice of
termination. The Agreement will co-terminate with the DTT Services
Agreement.
--------------------------------------------------------------------------------
Signed for the BBC: Signed for Tx Co:
--------------------------------------------------------------------------------
Date of Issue: the Agreement Date
--------------------------------------------------------------------------------
Date of termination: by Termination Notice/or where superseded
by a Supplemental Building Schedule
-------------------------------------------------------------------------------
21
(Note where there is more than one Building or separate Charges or length of
Term required for different places of Tx Co's equipment on the same Building,
then separate Building Schedule sheets should be completed for each Building.)
22
TERMINATION NOTICE
THIS TERMINATION NOTICE IS VALIDLY GIVEN WHERE IT IS SERVED PURSUANT TO THE
TERMS OF THE AGREEMENT AND SUBJECT TO THE PROVISIONS CONCERNING TERMINATION
CONTAINED IN THE GENERAL CONDITIONS. SERVICE OF THIS NOTICE DOES NOT AFFECT THE
CONTINUATION OF THE AGREEMENT INSOFAR AS IT RELATES TO ANY OTHER BUILDING(S) NOT
THE SUBJECT OF THIS NOTICE.
----------------------------------------------------------------------------
1 Tx Co NAME:
ADDRESS:
----------------------------------------------------------------------------
2 The Agreement DATE:
----------------------------------------------------------------------------
Notice is served pursuant to the (i) GENERAL CONDITION(S):
General Condition(s) named in this
Notice and the period of Notice is in (ii) PERIOD OF NOTICE:
accordance with those General
Conditions
----------------------------------------------------------------------------
4 This notice relates to either:-
(i) the Building(s) named in this (i) BUILDING NAME;
Notice;
or
(ii) THE AGREEMENT (DELETE IF
(ii) the Agreement (in its entirety) NOT APPLICABLE)
----------------------------------------------------------------------------
---------------------------------------------------------------------------
SERVED BY: ___________________________________________________(AUTHORIZED
SIGNATORY
---------------------------------------------------------------------------
PRINT NAME OF
SIGNATORY:___________________________________________________________
---------------------------------------------------------------------------
DATE OF DESPATCH:
________________________________________________________________
---------------------------------------------------------------------------
23
SCHEDULE 11
SECURITY, FIRE PREVENTION AND DISASTER RECOVERY SERVICES
1 PREVENTATIVE MEASURES
1.1 SECURITY
1.1.1 CTI shall provide protection to all equipment and facilities used in the
provision of the DTT transmission service, including deterrent and
detection systems to prevent unauthorized entry to Stations and IT systems
used in delivery of the DTT transmission service. A basic level of
security protection (to be agreed by the BBC) is to be provided at all
Stations. Additional measures (for example extra security fencing,
cameras, external alarms and secure cell (limited access within building)
facilities) are also to be provided at certain stations. These stations
and the details of these additional measures are to be agreed between the
BBC and CTI.
1.2 FIRE PREVENTION
1.2.1 The BBC's DTT building at each Station will be equipped with a fire
detection alarm system. Each cell within the building which will either
contain one Multiplex Service or Landlord's Equipment will be given its
own 'Detection Zone' and this will be signalled back to TOC via an
Automatic Fault Reporter. Each cell within the building will be built to a
standard that will give a one hour fire withstand between it and the
neighbouring cells. Appropriate portable fire extinguishers will be
located throughout the installation.
2 DISASTER RECOVERY PLAN
2.1 Within six months of contract signature CTI will develop at its cost a
Disaster Recovery Plan for the DTT Transmission Services to be reviewed
and agreed with the BBC. This will include development of a "Disasters and
Emergencies Procedures Manual" together with an appropriate disaster
recovery test plan. A formal disaster recovery test will be carried out
and the Disasters and Emergencies Procedures Manual will be updated by CTI
on an annual basis. The timetable of the disaster recovery tests is to be
agreed between the BBC and CTI.
2.2 The Disaster Recovery Plan will cover security, fire, mast collapse,
system management (TOC) failure and the provision of replacement broadcast
and distribution equipment.
2.3 CTI will ensure that all services covered in this Schedule II will be
provided for all Stations including those operated by NTL.
3 DISASTER RECOVERY FACILITIES
3.1 DTT EMERGENCY EQUIPMENT
3.1.1 CIT shall provide two new containerised DTT transmission systems, one
commensurate with the high power transmitters, one commensurate with low
or medium power transmitters, for each Multiplex that CTI operate.
3.1.2 In the event of fire destroying a mains supply and the transmitter site's
backup generator simultaneously, a containerised generator will be made
available by CTI within 24 hours except at Eitshal, Bressay, Keelylang
Hill and Torosay, where reasonable endeavours will apply.
3.2 LOSS OF COMPLETE TRANSMITTING STATION (EXCLUDING ANTENNA SYSTEM)
3.2.1 CTI shall ensure that an emergency container transmitter will be delivered
to any Station on the mainland of the UK and Northern Ireland within 24
hours. CTI shall ensure that full service will be resumed within 48 hours
of delivery.
1
3.3 MAJOR DAMAGE TO MAST AND/OR ANTENNA SYSTEM
3.3.1 CTI shall ensure that the following items, or similar functional
equivalents, are held as emergency cover in the event of major damage to
masts and/or antenna systems:
. 210m Reserve Mast
. 80m Reserve Tower
. 16 Lambda Main UHF Antenna
. 4 Lambda UHF Antenna
. 5 inch Feeder
. 3 inch Feeder
. UHF Combiner
. Handbooks
3.3.2 A separate digital reserve antenna system will also be provided by CM
consisting of.
. 2 Broadband 8 Lambda 4 panel UHF Antennas
. 2 inch feeder
. a modular combiner
3.3.3 The BBC recognise that service recovery times will depend upon the
severity of damage, and that the erection time for the 210m mast is
between four and five weeks.
3.4 TECHNICAL OPERATIONS CENTRE (TOC)
3.4.1 CTI shall provide a back-up technical operations centre, remotely located
from the TOC. Both centres shall have fully duplicated computer systems.
Data communications from Stations to these computer systems shall have
reserve (ISDN) facilities which are selected automatically in the case of
failure of the primary communications link.
3.4.2 In the event that the TOC needs to be abandoned, staff shall transfer to
the back-up centre and the operation be resumed within one hour with no
loss of monitoring data.
4 DISASTER RECOVERY PROCEDURES
4.1 GENERAL
4.1.1 In the event of a serious incident CTI shall follow the procedures laid
down in the Disaster Recovery Plan to be developed and agreed in
accordance with Section 1 of this Schedule 11. Key requirements of this
plan are summarised below.
4.2 NOTIFICATION
4.2.1 In the event that a potentially catastrophic incident is detected, which
will impair or interrupt service from one or more Stations for an
extended period, CTI shall immediately notify the following BBC contacts
in the sequence described:
. Presentation Engineering Co-ordinator (24 hours a day)
. BBC Representative (24 hours a day)
. Engineering Information Department (Office Hours only)
4.2.2 CTI and the BBC Representative will jointly assess the implications of
the incident and will follow the agreed Disaster Recovery Plan.
4.3 SERVICE PRIORITY
4.3.1 In the event of failure of more than one service at a Station, the order
of priority for service restoration will be in accordance with the
Disaster Recovery Plan.
2
4.3.2 A summary of the proposed restoration sequence to be contained in the
Disaster Recovery Plan, subject to agreement with the D-Mux group is set
out in the table below:
------------------------------------------------------------------------
SERVICE DATE RESTORATION SEQUENCE
AFFECTED
------------------------------------------------------------------------
DTT Only Any time Multiplexes in descending order of
population served
------------------------------------------------------------------------
Analogue and Early years Analogue in accordance with Analogue
DTT Contract DTT multiplexes in descending
order of population served
Later years* DTT multiplexes in descending order of
population served
Analogue in accordance with Analogue
Contract
------------------------------------------------------------------------
* The changeover date will be selected by the BBC, and will be influenced
by DTT take-up.
3
SCHEDULE 12
TECHNICAL ARCHITECTURE
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
2
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
3
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
5
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
6
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
7
[*]
12.8 ON-LINE STATUS INFORMATION TO BBC
[*]
12.8.2 The proposed system is shown below:-
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
8
[Diagram illustrating the system by which CTI will provide the BBC with online
status information]
2.8.3 A dedicated database will be provided to hold a subset of the alarms
and current status of all the DTT Stations. This database will be kept
to within one minute of the status that is known at the TOC system.
12.8.4 A Windows application will be supplied to access the database and
provide a graphical overview of the entire network, as well as showing
more detail on individual Stations when required. It will be possible
to do ad-hoc reports on this database.
12.8.5 CTI will provide suitable systems to protect the networks of both CTI
and the BBC. This will include firewalls on the telecommunications
links and virus checking on the BBC Network Status system computer.
12.8.6 The BBC will use reasonable endeavours to ensure that the systems
located on its premises are physically secure, and to protect them
against local attack or unauthorised use.
12.8.7 The data circuit, PC (for use at the BBC centre), database and Windows
application will form part of the Transmission Service and will be the
responsibility of CTI. The monitoring of this circuit and PC will be
incorporated into CTI's existing Network Management system.
12.8.8 Further details of the functionality of the on-line system are
provided in Schedule 8.
9
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
10
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
11
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
12
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
13
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
14
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
15
SCHEDULE 13
References
[Table listing references]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
