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EXHIBIT 10.8
AGREEMENT NO. 26-12/97
This Agreement ("the Agreement") is made and entered into this 26th day of
December, 1997 in Moscow
between
Telecommunications of Moscow, a closed joint-stock company duly organized under
the laws of the Russian Federation, with its legal address being 27/29 str. 0
Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000, Russian Federation ("TCM") and
Company MTU-Inform, a limited partnership duly organized under the laws of the
Russian Federation, with its legal address being 27/29 str. 0
Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000, Russian Federation ("MTU-Inform"),
collectively referred to as "the Seller," on the one part,
and
Vympel-Communications, an open joint-stock company duly organized under the laws
of the Russian Federation, with its legal address being 10-12 0-xx Xxxxx Xx.,
Xxxxxx, 000000, Russian Federation ("VympelCom"), referred to as "the Buyer," on
the other part,
collectively referred to as "the Parties" and individually as "the Party."
WHEREAS VympelCom acting on the basis of License No. 1600 of the Ministry of
Telecommunications of the Russian Federation for the provision of mobile
telephone communication services desires to receive for use the
telecommunications products and services of the modern digital network
("Products and Services") to provide them to its clients;
WHEREAS TCM and MTU-Inform acting on the basis of respective Licenses No. 5846
and 5840 of the Ministry of Telecommunications of the Russian Federation for the
provision of local telephone communication services offer the said
telecommunications products and services of the modern digital network and
desire to provide them to the Buyer;
WHEREAS on December 4, 1995 the Parties signed General Agreement No. S/41295 on
the terms and conditions for the provision of the Products and Services and the
corresponding agreements for the provision of services in 1996 and 1997;
NOW, THEREFORE, in consideration of the mutual covenants and premises contained
herein the Parties hereto agree as follows:
ARTICLE 1. SUBJECT OF THE AGREEMENT AND OBLIGATIONS OF THE PARTIES
SUBJECT:
1.1. Provision of local, long-distance and international communication services
to the Buyer's clients through operation of a system which includes the access
means for the Buyer's subscribers and the means for the provision of the
Products and Services as set forth herein, including Annex 1 hereto.
OBLIGATIONS OF THE PARTIES:
1.2. The Seller shall:
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1.2.1. Provide seventy thousand (70,000) numbers of the Moscow telephone network
to the Buyer in 1998. At the Buyer's request the Seller shall provide to the
Buyer an additional ten thousand (10,000) numbers of the Moscow telephone
network. Upon receipt of the request the Seller shall in advance inform the
Buyer in writing about concrete numbers and the date when the corresponding
groups of the number capacity are to be connected to the Moscow telephone
network.
1.2.2. Ensure for the telephone numbers allocated to the Buyer the possibility
of outgoing and incoming long-distance and international communication through
the network of Sovintel (code 501) and Rostelecom (code 095).
1.2.3. Provide the Products and Services indicated in Annex 1 to the subscribers
of the Buyer's network.
1.3. The Buyer shall:
1.3.1. Provide to its clients the entire range of the Products and Services
envisaged hereunder and make these services accessible through its switch.
1.3.2. Make full and prompt payments in respect of the Products and Services
provided for the telephone numbers received by the Buyer hereunder.
1.4. On a mutual basis the Parties shall:
1.4.1. Carry on their activity in accordance with the Federal Law on the
Telecommunications, "Rules for Connection of Departmental and Dedicated
Telecommunications Networks to the Public Telecommunications Network" approved
by Resolution of the Russian Federation Government No. 1254 of October 19, 1996,
other applicable regulatory documents in the field of telecommunications.
1.4.2. Bear individual responsibility to the State Committee for
Telecommunications and Informatization of the Russian Federation, Gossvyaznadzor
of the Russian Federation and other government agencies for the operation of
their own communication facilities within the framework of their licenses,
including responsibility for prompt execution of operational documents.
1.4.3. Comply with all statutory acts relating hereto.
1.4.4. Notify each other about the performance of all kinds of maintenance or
repair operations and about emergencies that may affect the communications
Services provided to the subscribers hereunder.
ARTICLE 2. TERM OF THE AGREEMENT AND PROVISION OF PRODUCTS AND SERVICES
The Agreement shall come into force from the date on which it is signed. The
term of the Agreement is indicated in Annex 1 hereto.
ARTICLE 3. ORDER FOR THE PRODUCTS AND SERVICES
The Seller shall provide to the Buyer the Products and Services listed in Annex
1 and additional Products and Services on the Buyer's requests in accordance
with the Addenda hereto.
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ARTICLE 4. TERMS AND CONDITIONS FOR PROVISION OF THE PRODUCTS AND SERVICES
4.1. The Seller hereby appoints the Buyer and the Buyer accepts the appointment,
in accordance with the provisions hereof, to act as the Seller's agent for
further provision of the Products and Services.
On the basis on an agreement with the Seller the Buyer shall have the right to
transfer the Products and Services to its subsidiaries in an established
procedure.
4.2. The Seller shall be an exclusive operator in the provision of long-distance
and international communication services for the numbers provided by the Seller
hereunder. The Buyer shall make arrangements to allow its clients access to the
services of the long-distance and international network provided by the Seller.
In any case, the Buyer shall not offer its clients the terms and prices for the
Buyer's services more advantageous for the client than the terms and prices for
the Buyer's services using the Seller's numbers in respect of the outgoing
long-distance and international communication services, and the breach of this
provision shall be regarded as a material breach in the meaning of Article 11
hereof.
4.3. Throughout the term of this Agreement the Buyer shall buy Moscow telephone
numbers only from the Seller and hereby undertakes to transfer numbers to the
Buyer in a quantity sufficiently large for sale to all Buyer's clients who
desire to purchase cellular communication services from the Buyer in accordance
with Clause 1.2.1 hereof. This provision may be changed only on the basis of a
written agreement between the Parties. The breach of the Buyer's obligation set
forth in this Clause 4.3 hereof shall constitute a material breach in the
meaning of Article 11 hereof.
On the basis of an agreement between the Parties a part of the number capacity
indicated in Clause 1.2.1 hereof may be allocated to another subsidiary of
MTU-Inform under a separate agreement with VympelCom, which shall be signed on
the same terms and conditions as this Agreement.
ARTICLE 5. PRICES, TARIFFS, TERMS OF SETTLEMENTS
The current prices and tariffs for the provided Products and Services and the
terms of settlements between the Parties are set forth in Annex 1 hereto.
ARTICLE 6. CONFIDENTIALITY
6.1. Throughout the term of this Agreement and for a period of five (5) years
after its expiry, unless the disclosing Party agrees otherwise in writing, the
release of, access to or use of the proprietary information disclosed by the
disclosing Party to the receiving Party shall be restricted to those employees
and officials of the receiving Party's organization who must know the
proprietary information in order to allow the receiving Party property to
perform its obligations hereunder. The receiving Party shall keep the received
proprietary information confidential using the same degree of care as it uses to
protect its own proprietary information but in no case any less degree than
reasonable care. Without a prior written consent of the disclosing Party the
receiving Party shall not disclose any proprietary information to any third
party and shall not use such proprietary information for its own benefit or for
the benefit of any third party.
6.2. The obligations imposed by Clause 6.1 hereof shall not apply to the
proprietary information:
(1) which has become public knowledge through no fault of the receiving Party;
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(2) which has already been lawfully received by the receiving Party and to which
Confidentiality Clause 6.1 is not applied;
(3) which is released pursuant to the binding order of a government agency or a
court, provided that prior to such release the receiving party shall inform the
disclosing Party to this effect in the maximum degree possible under these
circumstances.
6.3. All proprietary information disclosed hereunder shall be provided
temporarily, exclusively for use by the Parties in the performance of their
obligations.
6.4. The Party which has received proprietary information from the other Party
in writing shall, upon a written request of the other Party, promptly return the
original and all copies of the received information to its proprietor.
6.5. All public reports, including press releases relating to the Agreement or
its performance shall be agreed upon by the Parties before they are submitted
for publication.
ARTICLE 7. LIABILITY OF THE PARTIES
The Parties shall be held liable for the breach of the provisions of this
Agreement and Annexes thereto subject to the provisions of applicable laws of
the Russian Federation and this Agreement.
ARTICLE 8. WARRANTIES, CROSS INDEMNIFICATION, LIMITATION OF LIABILITY
8.1. Neither the Seller nor any third party providing the Products and Services
make any warranty, explicit or implicit, including but not limited to the
warranties for suitability or fitness for a particular application or purpose,
other than the warranties clearly set forth herein. The Parties understand that
this section concerns the Buyer and its buyers of the Products and Services.
8.2. The Seller shall not be held liable for any damages, losses, claims and
other expenses which the Buyer or any third party may suffer because of the acts
or omissions for which the Buyer, its employees, agents, other representatives
or guests are responsible and the Buyer agrees to indemnify and hold the Seller
harmless from and against any and all such damages, losses, claims and other
expenses. Likewise, the Buyer shall not be held liable for any damages, losses,
claims and other expenses which the Seller or any third party may suffer because
of the acts or omissions for which the Seller, its employees, agents, other
representatives or guests are responsible and the Seller agrees to indemnify and
hold the Buyer harmless from and against any such damages, losses, claims and
other expenses. These cross indemnifications shall survive the expiration or
earlier termination of the Agreement.
8.3. Neither Party shall be held liable to the other Party for any lost profit
and other indirect losses claimed or suffered by the other Party hereto or any
third party, which are due to or result from the first Party's performance or
failure to perform hereunder.
8.4. The Buyer shall be fully responsible for the use of the Products and
Services provided by the Seller and shall indemnify the Seller from and against
any claims arising from the improper use of the Products and Services by the
Buyer.
ARTICLE 9. FORCE MAJEURE
9.1. The Parties shall not be held liable for any delays in the performance of
or for any failure to perform their obligations hereunder if the delays or
failures were caused by circumstances or
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factors beyond the control of the Parties, such as a war (including civil war);
riots; sabotage; embargoes; fires; floods or other acts of God; explosions; acts
or omissions of the government of Russia or other governments; strikes. All such
circumstances shall be regarded as Force Majeure. Immediately upon receipt of
information about occurrence of a Force Majeure event which delays or affects
otherwise the performance of this Agreement the Parties shall inform each other
to this effect in writing.
9.2. The Parties shall not be held liable for any damages, losses, claims or
other expenses which they may suffer as a result of any of such Force Majeure
events.
9.3. If a material breaches of or default under this Agreement due to Force
Majeure lasts longer than one hundred and eighty (180) days, either Party may
terminate this Agreement by serving a thirty days' written notice of termination
on the other Party.
ARTICLE 10. ARBITRATION
10.1. If any differences arise between the Seller and the Buyer out of or in
connection with this Agreement or the performance by a Party of or its failure
to perform the obligations hereunder the Parties shall use their best efforts to
settle these differences amicably by negotiation to be held by their general
directors or authorized representatives.
10.2. If the differences cannot be resolved by negotiation, the dispute shall be
submitted to the International Commercial Arbitration Court at the Chamber of
Commerce and Industry of the Russian Federation subject to applicable laws of
the Russian Federation.
ARTICLE 11. TERMINATION OF THE AGREEMENT
11.1. Should either Party commit a material breach of its obligations or other
provisions hereof, the other Party hereto shall have the right to terminate this
Agreement if this breach or non-performance is not remedied within thirty (30)
days upon receipt of a written notice of the breach or non-performance and if
all possibilities for the settlement have been exhausted.
Upon termination of this Agreement the Seller shall cease provision of the
Products and Services to the Buyer and the Buyer shall cease to use the Products
and Services.
11.2. If one of the Parties terminates this Agreement because the other Party
commits a material breach of its obligations, the Buyer shall pay the Seller the
sums due to the Seller for the use of the Products and Services up to the date
of termination of the Agreement and the Seller shall accept its property, if
any, from the Buyer.
11.3. If the Buyer intends to terminate this Agreement fully or partially on its
own initiative before expiration of the term of the Agreement indicated in Annex
1 hereto, the Buyer shall notify the Seller in writing of its intent to
partially or fully suspend or to terminate this Agreement at least twelve (12)
months prior to the planned date of suspension or termination. Upon receipt of
such notice the Parties shall agree and sign an appropriate Addendum hereto
setting forth the procedure for the return of the Seller's number capacity which
is the subject hereof from the Buyer to the Seller and for compensation of the
Seller for financial losses resulting from the partial or full termination of
the Agreement, particularly, the losses due to the non-use of such numbers
during a definite period.
ARTICLE 12. NOTICES
Except as otherwise provided herein all notices required or permitted to be
given hereunder shall be in writing addressed as follows:
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FOR ZAO TCM:
00-00 xxx. 0 Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000
Attention: General Director
Telephone: 000-00-00
Fax: 000-00-00.
FOR COMPANY MTU-INFORM:
00-00 xxx. 0 Xxxxxxxxxxx-Xxxxxxx Xxxxxx, Xxxxxx, 000000
Attention: General Director
Telephone: 000-00-00
Fax: 000-00-00.
FOR VYMPELCOM:
10-12 0-xx Xxxxx Xx., Xxxxxx, 000000, Russian Federation
Attention: General Director
Telephone: 000-00-00
Fax: 000-00-00
Either Party shall inform the other Party of changes in its address in the
manner set forth above.
ARTICLE 13. WAIVER. SEVERABILITY
If any provision hereof is held to be invalid or contrary to applicable laws of
the Russian Federation the remainder hereof shall remain legally valid.
ARTICLE 14. GOVERNING LAW
This Agreement shall be construed and performed by the Parties in accordance
with applicable laws of the Russian Federation.
ARTICLE 15. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
Except as otherwise provided herein neither the Seller nor the Buyer shall
assign, transfer or dispose otherwise of this Agreement or any rights and
obligations thereunder without a prior written consent of the other Party
hereto.
ARTICLE 16. TRADE NAME AND TRADEMARK REQUIREMENTS
16.1. The Buyer shall recognize all trade names, trade marks and service marks
used in connection with the Products and Services. The Buyer's right to use the
Seller's trade name and/or trademark shall be subject to the Seller's consent.
16.2. In advertising, contracting or dealing with third parties the Buyer shall
not refer to the Products and Services by any trade names, trademarks or service
marks other than those approved by the Seller.
16.3. Upon termination of the Agreement the Buyer shall discontinue all such
uses or any representations in respect of the Services, which suggest that the
Buyer is still using the Services.
16.4. The obligations assumed by the Buyer under this Clause 16 shall survive
expiration or early termination of the Agreement.
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ARTICLE 17. ENTIRETY
17.1. This Agreement, including annexes and addenda hereto, shall constitute the
entire agreement between the Seller and the Buyer in respect of the subject
matter hereof and shall supersede and replace all prior understandings, whether
written or oral, relating to the subject matter hereof, with the exception of
General Agreement No. S/41295 of December 4, 1995 insofar as it does not
contradict the provisions hereof.
All modifications hereto shall be in writing and shall be signed by all Parties
hereto.
17.2. Simultaneously with or subsequent to the signing of this Agreement the
Parties may accept and sign Addenda hereto indicating all terms and conditions
that may supplement, amend, change or replace the terms and conditions hereof.
In such cases, the Addenda shall be regarded as an integral part hereof and the
terms and provisions of the Addenda shall prevail.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement in the Russian language in 3 copies,
one copy for each Party.
ZAO TCM Company MTU-Inform AO VympelCom
(Signed) (Signed) (Signed)
General Director 1st Deputy General Director General Director
Round seal
Round seal Round seal
