AGREEMENT
FOR THE PROVISION OF CORPORATE VOICE COMMUNICATION SERVICES
(Dated September 4, 1997)
between
EQUANT NETWORK SERVICES, INC.
and
WORLDPORT COMMUNICATIONS, INC.
Contract Ref: GVS/US/CUSTOMER/09/97/00
NOTE:
** This material has been omitted pursuant to a request for confidential
treatment and the omitted material has been filed separately with the Securities
and Exchange Commission.
This Agreement is made on as of the 4th day of September, 1997 ("Effective
Date") between:
BETWEEN:
EQUANT Network Services, Inc., a company incorporated in the State of Delaware,
whose principal office is located at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000 ("EQUANT"); and
Worldport Communications, Inc., a company incorporated in the State of Delaware
whose principal office is located at 0000 Xxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000 ("Customer").
RECITALS:
(A) Customer desires to obtain the Service from EQUANT in order to
facilitate voice communications between the Locations.
(B) EQUANT has agreed to provide and Customer has agreed to use the
Service pursuant to the terms and conditions set out in this
Agreement.
IT IS AGREED as follows:
1. Definitions
In this Agreement:
"Acceptance Tests" means the tests to be carried out by EQUANT in
order for the Service to be commissioned, as specified in Schedule 3;
"Associated Company" means in relation to a party, the holding company
of such party or any majority owned subsidiary of such party or
holding company;
"Charges" means the charges to be paid by Customer for the Service as
specified in Schedule 2;
"CPE" means any equipment, including cables and connectors, sited at
the Locations and supplied by EQUANT to Customer under this Agreement;
"Customer Facilities" means all such equipment and communications
lines (other than Tail Circuits, CPE and Software which EQUANT
supplies to Customer hereunder) including without limitation Customer
owned or licensed Switch equipment and software, magnetic media,
programs and other facilities, including personnel, required by
Customer for its use of the Service;
"Date of Acceptance" means in respect of each Location the date the
Acceptance Tests are successfully completed;
"Dollars" or "$" means United States Dollars;
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"End User" means any of Customer's subscribers obtaining the Service
under this Agreement; an End user may not be an airline or other air
transport-related company, ** of ** or ** services, ** provider or
competitor of EQUANT or its Associated Companies, unless agreed to in
writing by EQUANT;
"Initial Term" means **
"Locations" means the locations to which the Service is to be provided
as listed in Schedule 1 and any other locations subsequently added to
this Agreement;
"Network" means the EQUANT's network used to provide the Service; the
Network excludes Tail Circuits, Customer owned or licensed Switch
equipment and software, power supplies, public data networks and CPE;
"Order Form" means EQUANT's standard order form as modified from time
to time;
"Performance Levels" means the performance levels to which the Service
is to conform, as set out in Schedule 4;
"Service" means the corporate voice communications service described
in Schedule 1;
"Software" means the software programs and each and every component
thereof, as amended from time to time, including all developments,
versions or releases thereof whether existing now or becoming
available in the future, and all related documentation, which may be
supplied by EQUANT or Sub-Contractors in connection with the provision
of the Service, whether integral to CPE or otherwise;
"Sub-Contractor" means an Associated Company of EQUANT, Societe
Internationale de Telecommunications Aeronautiques or any other third
party whose identity has been notified to Customer, who may under
contract to EQUANT, perform or provide part of the Service under this
Agreement;
"Support Services" means the services specified in Clause 6;
"Switch" means Customer's network services exchange which is used to
access voice services and which forms part of the Customer Facilities;
"Tail Circuit" means a telecommunications circuit or other means of
access leased from a TO and used to connect the Locations to the
nearest Network node or such other node as Customer may agree.
"TO" means a governmental or non-governmental entity authorised to own
or lease and operate telecommunications circuits or other
telecommunications capacity and to lease said circuits or capacity to
providers such as EQUANT;
2. Scope and Purpose of Agreement
2.1 This Agreement sets out the terms and conditions on which EQUANT shall
provide the Service and the Support Services to Customer and Customer's End
Users.
2.2 Under this Agreement, Customer shall be entitled to (1) use the Service
for its own internal business purposes and in doing so may connect its
Associated Companies; and (2) resell the Service as an integral part of
Customer's Service, to End Users, subject to Clauses 2.4 and 2.5. The
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parties may decide to jointly market the Service and Customer's Service
from time to time and will confirm any conditions relating thereto in a
supplement to this Agreement.
2.3 Customer shall not be entitled to market, distribute or sell the
Service to any third party other than Associated Companies and End Users,
nor in any event resell or permit an Associated Company or End User to
resell the Service or provide the Service for resale to the general public,
or to such classes of users as to be effectively available to the general
public, that in any way jeopardizes EQUANT's status as a non-public,
non-common carrier, private network provider or in any way, which in the
exclusive opinion of EQUANT, contravenes the letter or intent of
regulations in force governing telecommunications in any country. Customer
shall not use the Service to allow "international simple resale" of leased
circuits to or from any country. Any of the foregoing prohibited activities
or resale shall constitute a material breach of this Agreement.
2.4 In marketing, distributing, and selling the Service pursuant to Clause
2.3, Customer shall be solely responsible for all risks and expenses
incurred and shall act in all respects on its own account. Customer shall
pay for all Service ordered by Customer irrespective of any payment terms
it may agree with any End User.
2.5 This Agreement may be extended to include the telehousing of Switch and
other Customer owned equipment by EQUANT in EQUANT Associated Company
premises. Any such additional services will be subject to separate
conditions and charges as set out in a supplement to this Agreement.
2.6 If EQUANT, in its reasonable discretion, determines that its provision
of Service to Customer will in any way jeopardize: (1) EQUANT's ability or
authority to provide Service; or (2) its status as a non-public, non-common
carrier, or private network provider, then EQUANT retains the right to
refuse, suspend, or discontinue the provision of Service to Customer in any
Location by providing to Customer prior written notice as is appropriate
under the circumstances. In the event of such refusal, suspension, or
discontinuation of Service, the parties shall consult with each other in an
attempt to find an alternative solution, if any, that would allow the
provision of Service in accordance with this Clause 2.6.
3. Term and Termination
3.1 This Agreement becomes effective from the Effective Date and, except as
provided under Clause 3.2, will continue in full force and effect for the
Initial Term. Thereafter, this Agreement shall continue for successive
terms of ** unless a party gives written notice of termination of this
Agreement to the other party at least 60 days before the end of the Initial
Term or any renewal thereof. In the event that this Agreement is extended
after the Initial Term by operation of this Clause, the Committed Volume
for ** set forth in Schedule 2, Clause 6.3 shall continue to apply to any
renewal term.
3.2 Either party may terminate this Agreement by written notice to the
other party with immediate effect if:
PAGE 3
3.2.1 the other party commits any material breach of this Agreement, and
does not remedy the breach (if it is capable of remedy) within 14
days of written notice of the breach being given by the non-defaulting
party;
3.2.2 an order is made or an effective resolution is passed for the
dissolution or discontinuation or termination of the other party
except for the purposes of a consolidation , merger or restructuring ;
3.2.3 an encumbrancer takes possession or a receiver is appointed over
the whole or any part of the undertaking or assets of the other party;
3.2.4 the other party becomes insolvent or makes any special arrangements or
any special assignment for the benefit of its creditors, or is the
subject of a voluntary or involuntary filing under the insolvency or
bankruptcy laws of any jurisdiction.
3.3 Each party's further rights and obligations under this Agreement shall
cease immediately on termination of this Agreement, but termination shall
not affect: (a) a party's rights and obligations accrued as at termination;
and (b) any provision of this Agreement expressed to survive its
termination.
3.4 Following a notice of termination by Customer pursuant to Clause 3.2,
EQUANT shall continue to provide the Service and the Support Services to
Customer for a reasonable migration period subject to payment of the
Charges by Customer in accordance with this Agreement and under the terms
and conditions of this Agreement, save that nothing in this provision shall
obligate EQUANT to (a) provide Service to Customer for resale to an End
User if Customer is not contractually bound to provide the Service to an
End User prior to Customer's receipt of notice of EQUANT's intent to
terminate, or (b) provide Service to Customer for resale to an End User for
a period longer than the term of any contract for the provision of
Customer's Service with an End User. This Agreement shall terminate
immediately upon cessation of the Service to all Locations following such
migration period.
3.5 On termination of this Agreement for whatever reason each party will
immediately return to the other any and all property of whatever kind and
nature provided under this Agreement and belonging to the other.
4. Provision of Service - EQUANT's Obligations
4.1 EQUANT shall provide the Service to Customer at the Locations commencing
from each Date of Acceptance.
4.2 The Service shall conform to the service description in Schedule 1 and
shall comply with the Performance Levels.
4.3 EQUANT reserves the right to make operational changes to the Service,
provided that such changes shall not adversely affect the Service provided
to Customer nor cause Customer to incur increased charges.
4.4 EQUANT shall ensure at all times that its provision of the Service to
Customer is in accordance with all applicable telecommunications, data
protection and other laws.
4.5 EQUANT shall have no obligations with respect to the use, operation,
performance or repair of the Customer Facilities including, without
limitation, Switches.
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5. Use of the Service - Customer's Obligations
5.1 Customer shall pay the Charges from each Date of Acceptance in accordance
with Clause 11.
5.2 Customer shall accept the Service at the Locations on the Date of
Acceptance.
5.3 Subject to Clause 4.4, Customer shall ensure at all times that its use of
the Service (and the use of the Service by its End Users) is in accordance
with all applicable telecommunications, data protection and other laws in
any country where the Service has been provided by EQUANT.
5.4 Customer shall not directly connect to the Network nor permit its
Associated Companies or End Users to directly connect to the Network any
equipment not type approved by EQUANT. EQUANT reserves the right to
immediately disconnect (or require the disconnection of) any equipment
connected in breach of this provision.
5.5 Customer shall not directly connect to the Network nor permit its
Associated Companies or End Users to directly connect to the Network, the
network of any other network supplier unless EQUANT has given Customer its
prior written approval. Any breach of this provision shall be a material
breach of this Agreement.
5.6 Customer shall ensure that any of its End Users and Associated Companies
connected to the Network shall comply at all times with the obligations of
Customer under this Agreement.
5.7 Customer shall be at all times responsible for the operation and
performance of Switch equipment, including the provisioning and
installation of any extra capacity or other modifications required for the
implementation of the Service. Customer shall also be responsible for
ensuring the support or presence, during implementation activities, of the
appropriate technical personnel from its Switch supplier. EQUANT shall not
be responsible for the correction of, or performance issues associated
with, faults traced back to the Switch, but EQUANT shall provide Customer
with all available information concerning such faults, and reasonable
assistance in support of Customer's efforts to obtain correction.
5.8 Customer shall be responsible for obtaining and maintaining the Customer
Facilities to a level necessary for EQUANT to provide the Service.
6. Support Services
6.1 EQUANT shall provide for the benefit of Customer help desk facilities
("Help Desk") in order that Customer may obtain technical advice and
guidance on the operation and use of the Service and for the reporting of
Service faults. The location of the Help Desk shall be subject to
reasonable change at any time. The Help Desk will be available at all times
to answer all service related queries from Customer's designated personnel.
The Help Desk will respond only to Customer's designated personnel; all
contact with the Help Desk shall be with Customer. EQUANT shall use its
reasonable efforts to respond to Customer promptly on any query which is
Service related.
6.2 EQUANT shall provide the escalation procedures specified in Schedule 4 to
facilitate the prompt and orderly resolution of any faults in the Service.
6.3 EQUANT shall provide Tail Circuit management services for all Tail Circuits
which shall comprise:
PAGE 5
6.3.1 the ordering and management of the connection of Tail Circuits,
modems and other communications equipment from the relevant TOs or
other third party vendors as applicable; in the event EQUANT is unable
to order Tail Circuits due to regulatory impediment, Customer agrees
to order them itself, in its own name;
6.3.2 the testing and acceptance of Tail Circuits, modems and other
communications equipment;
6.3.3 the notification of Tail Circuit faults to Customer and/or the
relevant TO on EQUANT becoming aware of the faults and the
co-ordination and expediting of Service restoration;
6.3.4 payment to TOs and other third party vendors in local currency
on Customer's behalf, where applicable. This service does not,
however, affect Customer's liability with respect to such Tail
Circuits, modems or other communications equipment and all sums paid
by EQUANT to TOs or other third party vendors in respect thereof,
which shall be reimbursed by Customer to EQUANT as more fully
described in Schedule 2).
7. CPE
7.1 The Service may include the provision by EQUANT of CPE. EQUANT warrants
that it has the right to provide or procure the provision of the CPE to
Customer, its Associated Companies and End Users and that all such persons
will have the right to use all CPE so provided for the duration of this
Agreement.
7.2 EQUANT shall connect the CPE at the Locations on dates and times to be
agreed by the parties. Should connection require the removal or
disconnection of any existing CPE of Customer or its End Users, Customer
shall permit, and obtain all necessary consent for the removal or
disconnection of such equipment and shall give EQUANT all necessary
assistance to enable such work to be carried out.
7.3 Charges for each item of CPE at a Location shall, in accordance with
Schedule 2, commence on the Date of Acceptance of the Service at a Location
and unless otherwise stated in this Agreement, shall continue for a minimum
period of **, provided that no CPE charges shall be payable with respect to
CPE if this Agreement or any Service under this Agreement has been
terminated by Customer pursuant to Clause 3.2.
7.4 The CPE shall at all times remain the sole and exclusive property of
EQUANT or its Sub-Contractors and Customer shall have no property rights or
interest in the CPE but shall have the right to quiet possession and the
right to use the CPE under the terms and conditions of this Agreement.
7.5 Customer shall have the following obligations with respect to the CPE:
7.5.1 not to sell, assign, sub-let, pledge or part with possession or
control of the CPE or any interest therein;
7.5.2 not to change, remove or obscure any labels, plates, insignia,
lettering or other markings which are on the CPE at the time of its
connection or which may afterwards be placed on the CPE by EQUANT or
by any person authorised by EQUANT;
7.5.3 to keep the CPE free from distress, liens or claims of lien.
PAGE 6
7.5.4 not to move the CPE from the Location to which it was delivered and
connected without EQUANT's prior written consent;
7.5.5 not to use the CPE or permit it to be used contrary to any law or any
regulation for the time being in force;
7.5.6 to ensure that proper environmental conditions as recommended by
EQUANT are maintained for the CPE and that the exterior surfaces are
kept clean and in good condition;
7.5.7 not to make any modifications to the CPE;
7.5.8 to insure the CP for its full replacement value for the duration of
this Agreement;
7.5.9 to provide EQUANT with all reasonable access to the Locations in order
to comply with its responsibilities pursuant to Clause 7.7.
7.6 Upon termination or expiration of this Agreement, Customer shall
surrender possession of the CPE in good order, repair and condition,
reasonable wear and tear excepted, to EQUANT.
7.7 Subject to Clause 7.5, EQUANT shall ensure that the CPE is in good
working order at the time of commissioning, and remains in good working
order for the duration of this Agreement. If a Service fault occurs which
has been caused by a failure in the CPE, EQUANT shall repair the fault as
soon as possible following notification of the fault by Customer or
detection of the fault by EQUANT, whichever first occurs. If a visit to a
Location is required, within ** of notification by Customer, EQUANT shall
ensure that a Sub-Contractor arrives at the affected Location and commences
any remedial activities provided: (a) the notification is received, and the
call for repair can be made during the normal business day of the
Sub-Contractor located nearest to the affected Location; and (b) the
Location is situated within a ** mile radius of the nearest EQUANT service
center ("Normal Service"). Remedial service on CPE other than Normal
Service shall be carried out by EQUANT through its Sub-Contractors as soon
as is practicably possible, taking into account availability of service
personnel, the time and date of Customer's notification and the country
concerned.
7.8 Any visits to a Location or repairs to CPE made necessary by: (a)
damage to the CPE not caused by EQUANT or a Sub-Contractor; (b)
interventions other than normal interventions carried out by non-EQUANT
personnel; (c) modifications to the CPE which have not been approved by
EQUANT or have been carried out by personnel unapproved by EQUANT; (d)
improper treatment of the CPE by Customer or an End User; (e) failure by
Customer or its End User to meet the CPE manufacturer's specifications as
advised by EQUANT to Customer on environmental conditions; (f) negligence
on the part of Customer or its End User; or (g) any force majeure event,
shall entitle EQUANT to increase its charges for the Service at the
affected Location, such increase in charges to be equal to the actual and
reasonable cost to EQUANT of restoring the Service.
PAGE 7
8. Software
EQUANT, for and on behalf of itself and any Associated Company of EQUANT
having ownership thereof, hereby grants to Customer and its Associated
Companies for the duration of this Agreement, non-exclusive and
non-transferable licenses to use Software for the purposes of using the
Service. Customer acknowledges that the provision of Software is made by
EQUANT strictly for use in conjunction with the Service and Customer agrees
not to produce, copy (except for the purpose of retaining a back-up copy),
alter, modify, or add to the Software or any part thereof, nor to attempt
or to allow a third party to attempt to reverse engineer, translate or
convert the Software from machine readable to human readable form, except
as permitted by applicable law.
9. Intellectual Property Rights
9.1 All intellectual property rights in the Service, Network and the Software
are either licensed to or the property of EQUANT or an Associated Company
of EQUANT and nothing contained in this Agreement shall be deemed to convey
title or ownership interest therein to Customer.
9.2 Subject to Clause 9.3, EQUANT warrants that the Service will not infringe
third party intellectual property rights in any country where the Service
is provided to Customer.
9.3 In the event of any breach of the warranty set forth in Clause 9.2:
9.3.1 EQUANT shall indemnify Customer against any claims, proceedings
and reasonable expenses, provided that Customer: (a) promptly notifies
EQUANT in writing of the claim; and (b) gives EQUANT sole control of
the defense and all related settlement negotiations; and
9.3.2 EQUANT will either procure the right f or Customer to continue
using the Service (including the part of the Service that has
infringed) at no additional cost to Customer or provide alternative
Service at no additional cost to Customer.
9.4 Notwithstanding Clause 9.3, EQUANT shall have no liability for any
intellectual property infringement claim based upon the combination,
operation or use of the Service with equipment, data or software not
supplied by EQUANT if the cause of the infringement is due to such
combination, operation or use, nor shall EQUANT's liability to Customer in
respect of CPE or software not proprietary to EQUANT, exceed any
intellectual property infringement warranties provided to EQUANT, its
Associated Companies or Sub-Contractors.
10. Confidentiality
10.1 In this Clause 10, "Confidential Information" means the contents of this
Agreement and all information disclosed (whether in writing, or orally or
whether directly or indirectly) by a party (the "Disclosing Party") to the
other party (the "Receiving Party") whether before or after the Effective
Date, including, without limitation, information relating to the Disclosing
Party's products and services, operations, customers and prospects,
know-how, design rights, trade secrets, market opportunities and/or
business affairs.
10.2 During this Agreement and after termination or expiration of this
Agreement for any reason the Receiving Party:
10.2.1 may not use Confidential Information for any purpose other than
for the performance of its obligations or the exercise of its rights
under this Agreement;
10.2.2 may not disclose Confidential Information to any third party; and
10.2.3 shall use best efforts to prevent the unauthorised use or disclosure
of Confidential Information.
PAGE 8
10.3 The restrictions imposed by Clause 10.2 shall not apply to the
disclosure of Confidential Information;
10.3.1 which is now in, or hereafter comes into the public domain
other than by the Receiving Party's breach of this Agreement;
10.3.2 which is required by law to be disclosed to any person who is
authorised by law to receive the same;
10.3.3 to a court, arbitrator or administrative tribunal in the course
of proceedings before it to which the Receiving Party is a party in a
case where such disclosure is required by such proceedings.
10.4 Where the Receiving Party is required to disclose any Confidential
Information pursuant to Clause 10.3, it shall give as much advance notice
thereof to the Disclosing Party it is reasonably able and shall use
reasonable efforts to limit the extent of any such disclosure.
11. Charges and Payment
11.1 All Charges shall be invoiced by EQUANT to Customer in Dollars monthly
in advance for all fixed recurring Charges and monthly in arrears for all
other Charges, and shall be payable by Customer, without deduction or
set-off, within 30 days of receipt of an invoice by Customer.
11.2 All Charges are exclusive of value added tax, sales tax, excise tax, gross
receipts tax, withholding tax and any similar tax which may be applicable
thereto and Customer agrees to pay all such applicable taxes.
11.3 EQUANT reserves the right to make a reasonable charge for any work
performed by EQUANT which is attributable to Customer's failure to perform
any of its obligations under this Agreement, provided that such work is
necessary in the reasonable discretion of EQUANT and that wherever
feasible, EQUANT shall have notified Customer in advance.
11.4 Failure by Customer to pay any Charges in accordance with this Agreement
shall entitle EQUANT without prejudice to its other rights and remedies
under this Agreement to:
11.4.1 charge interest on a daily basis from the original due date at
the rate of 4 percentage points above the Chase Manhattan Bank's Prime
Rate in force from time to time; and/or
11.4.2 suspend the Service, having given 14 days written notice of its
intention to do so, and Customer having failed to remedy its payment
default during that time; and/or
11.4.3 the remedies set out in Clause 11.5 below.
11.5 Prior to the commencement of any Service, Customer shall issue an
irrevocable and renewable letter of credit in favor of EQUANT ("Letter of
Credit"). The Letter of Credit shall be issued from a financial institution
chartered in the United States approved by both parties. The terms of the
Letter of Credit shall permit EQUANT to draw upon it on demand in the event
that Customer becomes delinquent in its payment obligations hereunder. For
the first ** of the term of the Agreement, the Letter of Credit shall be
for **. After the first ** of the term of the Agreement, EQUANT may, in its
sole discretion, require Customer to increase the amount of the Letter of
Credit to an amount to be determined by EQUANT, which amount will not
exceed ** month's Committed Volume for the period.
PAGE 9
12. Exclusions and Limitations of Liability
12.1 EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, EQUANT MAKES NO WARRANTIES
AND HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SERVICE OR ANY CPE OR SOFTWARE PROVIDED UNDER OR IN RELATION
TO THIS AGREEMENT.
12.2 SUBJECT TO CLAUSE 13, BUT OTHERWISE NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
HOWSOEVER ARISING INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST TIME,
INCOME, REVENUE, CLIENTS' GOODWILL, PROFITS OR OTHER SIMILAR ITEMS, OR ANY
BUSINESS INTERRUPTION OF ANY KIND, EVEN IF THE OTHER PARTY HAS BEEN
INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.3 Subject and without prejudice to Clauses 12.2, 12.4, 13 and Schedule 4, and
without prejudice to Customer's obligation to pay any Charges hereunder for
Service provided, the parties' maximum liability under this Agreement is
limited in respect of each event or series of connected events as follows:
$1,000,000 in respect of physical damage to or loss of tangible property;
$100,000 in respect of all other events.
12.4 Nothing in this Agreement shall exclude or limit a party's liability for
gross negligence and death and/or personal injury.
12.5 The parties' sole obligations and liabilities are as stated in this
Agreement and all other representations, conditions, warranties and terms
express or implied whether by statute, law or otherwise are hereby excluded
to the full extent permitted by law.
13. Indemnities
13.1 Customer irrevocably and unconditionally agrees to indemnify and keep
indemnified EQUANT from and against any and all claims, liabilities,
losses, damages, costs, expenses, including reasonable legal fees and other
costs of litigation or arbitration on an indemnity basis, (collectively,
"Losses") resulting from or arising out of (a) any action brought against
EQUANT by Customer's Associated Companies or End Users relating to the
provision of the Service by EQUANT under this Agreement; and (b) the use of
the Service by Customer, its Associated Companies or End Users or the use
of the Service by any other third party who gains access to the Service due
to Customer's, its Associated Companies or End User's wrongful acts or
omissions.
13.2 EQUANT irrevocably and unconditionally agrees to indemnify and keep
indemnified Customer, from and against any and all Losses resulting from,
or arising out of a wrongful act or omission by EQUANT, except any Losses
resulting from or arising out of any act or omission by Customer (whether
wrongful or otherwise) relating to the provision of Service by EQUANT under
this Agreement.
PAGE 10
13.3 Except for Losses resulting from, or arising out of any action brought
against EQUANT by Customer's Associated Companies or End Users and Losses
arising under 13.1 (b), for which no limit applies, the parties' liability
under Clauses 13.1 and 13.2 shall not exceed the exclusions and limitations
of liability set forth in Clause 12.
13.4 This Clause 13 shall survive any termination or expiration of this
Agreement.
14. Ordering Procedure
14.1 Any and all orders for Service shall be made by Customer executing and
delivering to EQUANT an Order Form.
14.2 This Agreement supersedes any terms and conditions contained in an Order
Form unless otherwise agreed by the parties in writing.
15. Force Majeure
15.1 No failure or omission by either party (other than failure of Customer to
pay EQUANT the Charges due for Service performed up to the effective date
of force majeure) to carry out or to perform any of the terms or conditions
of this Agreement shall give the other party a claim against such party, or
be deemed a breach of this Agreement, if and to the extent that such
failure or omission arises from force majeure as later defined.
15.2 The party prevented from performing due to force majeure shall promptly
notify the other party of the cause and the anticipated duration thereof
and shall use its reasonable efforts to remove such cause and to resume
performance of this Agreement as soon as such cause is removed.
15.3 The term "force majeure", as used in this Agreement shall include, without
limitation, earthquake, fire, flood, epidemic, act of war, whether declared
or undeclared, blockade, insurrection, riot or other cause(s) beyond the
reasonable control of either of the parties.
15.4 Should any circumstance of force majeure continue for more than 30 days,
Customer may either suspend or terminate the affected Service without
liability or obligation except for any liability for outstanding charges
under this Agreement including, without limitation, Tail Circuit charges
and cancellation penalties, and minimum CPE charges for the period set out
in Clause 7.3. If Customer has suspended the Service, Customer shall resume
payment for the Service from the date of resumption of the Service.
16. Applicable Law and Arbitration
16.1 This Agreement and all matters regarding the interpretation and/or
enforcement hereof, shall be governed exclusively by the law of the State
of Georgia, except in so far as the Federal law of the United States of
America may control any aspect of this Agreement, in which case Federal law
shall govern such aspect.
16.2 All disputes arising in connection with this Agreement shall be settled
initially by internal dispute resolution and then, if necessary,
exclusively by arbitration before a single arbitrator in Atlanta, Georgia
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Each party irrevocably consents to personal
jurisdiction and to ex parte action should any party refuse to participate
in such proceedings. The arbitrator's award shall be final and binding on
all parties and judgement on the award may be entered and the award
enforced in any court having jurisdiction thereof.
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16.2.1 Notwithstanding the above, disputes arising in connection with
invoicing and payment will not be settled by arbitration.
17. General
17.1 Notices Any notice to be made by either party to the other shall be
sufficiently made if sent by prepaid first class mail or facsimile or
delivered by hand to the party to be served at the address appearing on
page 1 of this Agreement or such other address as may be notified in
writing by one party to the other. Except in the case of delivery by hand,
or evidence to the contrary, the notice shall be deemed to have been made
on the day on which such communication ought to have been delivered in due
course of postal or facsimiled communication.
17.2 Assignment
17.2.1 Either party may at any time assign all or part of its rights and
obligations under this Agreement to it's Associated Company, provided
always that: (a) the assignee is not a direct competitor of the other
party; or (b) such assignment would not cause the other party to incur
materially increased costs in connection with the provision of the
Service or this Agreement.
17.2.2 Subject to Clauses 17.2.1 and 17.6, neither party may assign,
subcontract or otherwise dispose of this Agreement or any part thereof
without the written consent of the other party, such consent not to be
unreasonably withheld.
17.3 No Waivers No failure or delay of either party in exercising any right
under this Agreement shall be deemed a waiver of the right. No waiver of
any default on any one occasion shall constitute a waiver of any subsequent
default. No single or partial exercise of any right shall preclude the
further or full exercise of it.
17.4 No Third Party Beneficiaries, Agency or Partnership Notwithstanding
that Customer's Associated Companies and End Users may utilize the Service
in accordance with the terms of this Agreement, it is agreed between the
parties that Customer and only Customer may commence proceedings in its own
name to enforce all obligations and liabilities of EQUANT hereunder and
that EQUANT agrees to look only to Customer for due performance of this
Agreement. Nothing contained herein shall entitle either EQUANT to commence
any proceedings against any of Customer's Associated Companies or End Users
or any of Customer's Associated Companies or End Users to commence any
proceedings against EQUANT.
This Agreement is not intended to create a joint venture or partnership
between the parties and neither party is authorised to act as the agent for
the other.
17.5 Invalidity If any term, provision, or clause of this Agreement or any
portion of such term, provision or clause is held invalid or unenforceable,
the remainder of this Agreement will not be affected thereby and each
remaining term, provision or clause or portion thereof will be valid and
enforceable to the full extent permitted by law.
17.6 Sub-contractors EQUANT shall be entitled to subcontract any of its
obligations to a Sub-Contractor. EQUANT shall not be entitled to
subcontract any of its obligations under this Agreement to any other person
without the prior written consent of Customer which consent shall not be
unreasonably withheld. EQUANT shall be responsible for the acts and
omissions of any Sub-Contractor..
PAGE 12
17.7 Entire Agreement This Agreement including all Schedules and Order Forms,
constitutes the entire agreement between the parties relating to the
Service and supersedes all previous oral or written communications,
proposals and agreements in respect thereof. This Agreement may not be
modified, except by supplements duly executed by the parties.
17.8 Interpretations In this Agreement unless otherwise stated: (a) the headings
used are included for convenience only and are not to be used in construing
or interpreting this Agreement; (b) any reference to the plural shall
include the singular and any reference to the singular shall include the
plural; (c) any reference to a clause shall be a clause of the body of this
Agreement unless otherwise specifically stated; and (d) any reference to a
schedule shall be a schedule to this Agreement.
In the event of any conflict or inconsistency between the provisions of (1)
the body of this Agreement and (2) the Schedules and (3) Order Forms, the
following order of control shall apply:
(1) the body of the Agreement;
(2) the Schedules;
(3) Order Forms.
Subject to the above, the Schedules and Order Forms shall be incorporated
into and form a part of this Agreement.
IN WITNESS WHEREOF, EQUANT and Customer have duly executed this Agreement as of
the day and year first above written.
EQUANT Customer
By: /s/ X. X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------- --------------------------
Name: X. X. Xxxxxxxx Name: Xxxx X. Xxxxxx
-------------------------- --------------------------
Title: President Title: President & CEO
-------------------------- --------------------------
Date: 9-8-97 Date: 9-8-97
-------------------------- --------------------------
PAGE 13
SCHEDULE 1 - SERVICE DESCRIPTION
1. GLOBAL VOICE SERVICE ("GVS")
EQUANT shall provide Customer with Global Voice Service between the
Locations set forth below. The Global Voice Service is based on the virtual
private network (VPN) concept which allows EQUANT to provide private
network functionality combined with flexibility, resilience and cost
effectiveness of a shared network. This is achieved by programming an
organization's dial plan and call routing parameters within a Closed User
Group (CUG) facility so that calls can be identified, routed, and charged
appropriately.
1.1 Call Types The following call types are supported:
1.1.1 On-Net which allows calls to be routed between customer's sites
directly connected to the Network. **
1.1.2 Off-Net* which allows calls to be routed via the Public Switched
Telephone Network (PSTN) to locations that are not directly connected
to the Network.
1.1.3 Virtual On-Net* which allows calls dialed as part of customer's
private numbering scheme but routed, after appropriate number
translation within the Network, via the Public Switched Telephone
Network (PSTN) to locations that are not directly connected to the
Network.
1.1.4 Forced On-Net which allows calls **
*Off-Net calling and virtual On-Net calling via the PSTN is offered only where
prevailing voice regulations allow.
1.2 EQUANT's Global Voice Service is designed for international site to
site corporate voice traffic. The service is based on establishment of a
virtual private network ("VPN") which provides private network
functionality over a shared network.
1.3 Global Voice Service will provide call connectivity between Customer's
Switch in Omaha, Nebraska, allowing users to dial between each other
(On-Net) over the Network. In addition, users have the ability to originate
calls from a direct access location, and have these calls terminated over
the PSTN (Off-Net) to all international direct dial (IDD) destinations.
1.4 Global Voice Service will allow Customer to define a private numbering
plan in any format, including numbers already in use, which will form a
specific closed user group.
2. PROJECT MANAGEMENT SERVICE
GVS Project Management shall include, without limitation, defining the
scope of the project, implementation milestones, develop dial plan,
features and technical specifications, confirm network engineering design
and development a site details document, and overall management of
Customer's account.
3. CUSTOMER SERVICE SUPPORT FOR GLOBAL VOICE SERVICES
SCHEDULE 1, PAGE 1
See Schedule 4
4. LOCATIONS
Locations Type of Service Date of Connection
--------- --------------- ------------------
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
** GVS to be determined
SCHEDULE 1, PAGE 2
SCHEDULE 2 - CHARGES
1. Charges
EQUANT shall provide Customer with the Service for the Charges specified in
the tables to this Schedule 2 ("Tables"). Charges shall be invoiced and
paid in accordance with Clause 11 of this Agreement. Subject to Clauses 4
and 7 of this Schedule 2, all Charges are fixed for the Initial Term.
2. Commencement of Charges
All charges shall commence from the Date of Acceptance of the Service at a
Location except that: (a) Tail Circuit charges shall commence from the date
of installation of the Tail Circuit at a Location by the TO; (b) any
Software license fees shall commence from the date of delivery of the
Software to Customer.
3. Tail Circuit Charges
Tail Circuit charges shall be as specified in the Table or otherwise as
notified by EQUANT from time to time. Tail Circuit charges are fixed for **
periods and then adjusted in line with actual charges from TOs. No credits
or additional charges in respect of variances between Tail Circuit charges
and actual TO charges to EQUANT for Tail Circuits shall apply.
4. Tail Circuit Management Charges
Tail Circuit management Charges shall be ** of Tail Circuit Charges or **
per month per Tail Circuit, whichever is greater.
5. CPE
EQUANT shall notify Customer what the Charges are for any CPE added after
the Effective Date.
6. Minimum Revenue Commitment
Customer shall make the following minimum revenue commitment for Global
Voice Service ("Minimum Revenue Commitment"). The Minimum Revenue
Commitment excludes charges for Tail Circuits, international private lines,
or other types of local access and one-time charges for installation and
project management:
Year of Agreement Term Commitment ($$)
---------------------- ---------------
** **
If Customer fails achieve the Minimum Revenue Commitment, then Customer
will pay the difference between the actual charges and the Minimum Revenue
Commitment. Customer will pay said amount within 30 days of receiving
EQUANT's invoice for same. This payment is the maximum penalty relating to
Customer's failure to meet the Minimum Revenue Commitment, however,
additional penalties apply to Customer's failure to maintain the ** usage
set forth at Table 1.2.
SCHEDULE 2, PAGE 1
7. Charges Review
Customer may request a review of EQUANT's On-Net and Off-Net per minute
charges ("Adjustable Charges") on each anniversary date of the Effective
Date ("Annual Price Review"). The Annual Price Review will constitute ** to
be selected by agreement of the parties, for services equivalent to the
Service, at all the Locations, and for a contract term equivalent to the
balance of the Initial Term **. If as the result of the Annual Price
Review, it is demonstrated that the total of the Adjustable Charges in
effect on the date of the Annual Price Review is at least ** than the **
being then ** by any of the **, then the Adjustable Charges payable by
Customer may, in EQUANT's sole discretion, be reduced as of the relevant
anniversary of the Effective Date. In the event there is a reduction of
charges, there shall be no reduction in the Minimum Revenue Guarantee. If
EQUANT does not reduce its Adjustable Charges, Customer shall be entitled,
within a thirty (30) day period following EQUANT's notification of its
decision, to terminate this Agreement pursuant to Clause 3.2. Nothing in
this Clause 7 shall affect Customer's obligations under Clause 2.2 of
Schedule 3.
8. Off-Net Charges
If Off-Net Service volume (in minutes) originating from the ** and destined
for ** exceeds ** of the total Off-Net Service volume (in minutes)
originating from the **, destined for the rest of **, then EQUANT reserves
the right to alter the pricing to reflect the increased traffic volumes.
9. Billing Increments
For GVS, EQUANT charges in ** increments.
SCHEDULE 2, PAGE 2
TABLES TO SCHEDULE 2
Table 1.1
EQUANT shall charge On-Net Service at ** per minute.
Table 1.2
EQUANT GVS Off-Net Service Pricing- ** to ** Off-Net (in Dollars)
Country Discounted Cost Per Minute
------- --------------------------
**
Customer must maintain a **. In the event Customer does not maintain the **,
then an additional charge of ** shall apply to the difference between actual (i)
actual minutes used and (ii) the number of minutes required to achieve the **.
The ** shall apply to Charges going forward.
TABLE TO SCHEDULE 2
SCHEDULE 3 - LOCATIONS - CONNECTION and DISCONNECTION,
ACCEPTANCE TESTS
1. Connection of the Service to Locations
1.1 EQUANT shall use all reasonable efforts to connect the Service at a
Location on the dates specified in Schedule 1 or if not so stated on dates
agreed by the parties and in any event as soon as possible after the date
the Tail Circuits are made available by the TOs. EQUANT shall use all
reasonable efforts to ensure that Tail Circuits are ordered and
administered by EQUANT so as to facilitate the availability of Tail
Circuits in accordance with TOs' usual lead times. However, EQUANT shall
have no responsibility, nor liability for delays caused by Customer, TOs or
any event of force majeure as defined in Clause 15. In the event of any
such delays, EQUANT shall use all reasonable efforts to provide the Service
as set out in this Agreement at the earliest opportunity. EQUANT reserves
the right to connect an interim service of an equivalent functionality and
performance should such delays occur.
1.2 Customer shall use all reasonable efforts to accept the Service at the
Locations on agreed connection dates. EQUANT reserves the right to commence
its Charges for any delayed Service due to Customer's breach of this
provision, and in addition no such delay shall affect EQUANT's right to
receive reimbursement for all TO and other third party vendor charges in
respect of Tail Circuits and communications equipment incurred from the
date of any contract between EQUANT and any TO or other third party vendor.
1.3 Customer also understands that should EQUANT, its agents or Sub-Contractors
carry out a visit to a Location in order to connect the Service, and then
be unable to do so as a result of any act or omission by Customer, EQUANT
reserves the right to charge Customer for such visit at its then current
manpower rates for such time and its reasonable travel and out of pocket
expenses.
2. Disconnection of the Service to Locations
2.1 Customer agrees not to disconnect the Locations from the Network during the
Initial Term from the Date of Acceptance connection of each location unless
Customer substitutes any Location with a new Location provided EQUANT is
able to provide Service at the new Location. EQUANT shall be entitled to
invoice Customer a connection and project management charge for the new
Location as agreed by Parties.
2.2 Any disconnection of a Location shall be conditional on Customer providing
the following:-
2.2.1 at least 90 days prior written notice;
2.2.2 payment of an early disconnection charge equal to **; and
2.2.3 payment of a lump sum equal to the depreciated value of the CPE
as at the date of disconnection, based on the original price paid by
EQUANT or its Sub-Contractors for the CPE plus ** of such original
price as a fee for administration and disconnection save that no such
sum shall be payable if EQUANT is able (as reasonably determined by
EQUANT) to redeploy the CPE either with Customer or another customer
or within the Network; and
2.2.4 any contingent Tail Circuit charges including any cancellation
penalties; EQUANT will mitigate any such charges by terminating any
Tail Circuit leases as soon as practicable following notification of
the disconnection.
SCHEDULE 3, PAGE 1
3. Acceptance Tests
EQUANT shall carry out the following Acceptance Tests for each Location
from sites remote to the Location:
3.1 Global Voice Services
---------------------
3.1.1 EQUANT will verify that a path exists between the demarcation
point at Customer's Location (i.e. SWITCH or other type of switch) and
the Network Node, as defined in Schedule 4.
3.1.2 EQUANT will verify that speech quality standards meet or exceed
public switched telecommunications network ("PSTN") quality.
3.1.3 EQUANT will prove the compatibility of the SWITCH configuration
with the signalling protocol and the Customer's dial plan.
3.1.4 EQUANT will verify call routing for Off-Net and On-Net calls.
SCHEDULE 3, PAGE 2
SCHEDULE 4 - PERFORMANCE LEVELS FOR GLOBAL VOICE SERVICES
1. INTRODUCTION
This Schedule gives Customer an indication of those areas of quality that
EQUANT measures for the Service.
2. GRADE OF SERVICE
IGVN GRADE OF SERVICE or I-GOS, is defined as the probability of a call
being blocked due to insufficient network capacity.
The Network is designed and engineered to offer a **. This means that a
maximum of ** of the calls may be blocked by insufficient network capacity
in the busiest hour of the day.
The grade of service is calculated every ** minutes on a DMS trunk and
every ** minutes on a M1 trunk. Grade of service is defined as ErlangB
(traffic carried, number of working circuits). This will be reported on
each Customer site.
The GVN NETworks management system is the tool used for the logging and
calculation of these GVN GOS indicators.
Call blocking probability is based upon accurate traffic forecasting, which
forecasts are provided by Customer. In the event that Customer has provided
to EQUANT substantially inaccurate forecasts of its traffic, the above
grade of service target does not apply.
Performance against this target is monitored across the core network* by
EQUANT's network management system at its Global Voice Service Operations
Center in London. Performance statistics are for inbound call blocking
(i.e. Grade of Service for calls delivered to Customer from EQUANT' Central
Office Switches).
* The core network is defined as the transmission and switching elements of
the EQUANT Service excluding any access capacity to the core network.
3. USE OF SATELLITE TRANSMISSION
In general, EQUANT configures transmission paths so that a maximum of 1
satellite hop shall be used for any given voice routing. However, there are
limited circumstances in which more than 1 satellite hop may be used. These
are: (i) for emergency routing where satellite capacity is deployed to back
up first choice terrestrial routings; and (ii) for connection between 2
countries in regions where satellite capacity is predominantly used for
international transmission.
SCHEDULE 4, PAGE 1
4. NETWORK AVAILABILITY
GVN Core Network Availability shall mean the up-time (expressed as
percentage) of EQUANT's central office switching systems and their
associated network trunks, excluding Maintenance Windows and local access
lines.
The core network is designed to offer a target availability of **.
5. FAULT CLEARANCE
EQUANT aims to clear ** of Customer reported faults determined to be on the
Network within ** hours of their first report by Customer.
Those faults that fall outside this target are escalated within EQUANT's
operational structure to a senior manager within the EQUANT Voice
Operations.
The Customer fault reporting channel is to the Help Desk.
Customer Feedback During Fault Clearance
When a fault is reported by Customer to the Help Desk, the first feedback
from the Help Desk to Customer will be within ** of the initial report.
Following this initial feedback, subsequent feedback will be at least **.
Reported faults will not be regarded by EQUANT as cleared unless this
clearance is confirmed by Customer.
Fault Reporting
EQUANT can provide regular reports on its fault clearance performance. More
detailed reports can be provided on exceptional faults as agreed between
Customer and EQUANT. These reports, covering the nature of the fault and
the history of its resolution, are generally provided for faults not
cleared within the above target resolution time.
SCHEDULE 4, PAGE 2
6. CUSTOMER SERVICE TARGETS
Support Center - General
------------------------------------------------------
Support Center Response 100% of call answered with ** seconds
Support Center Coverage 24 hour per day, 7 days a week
Language Support All Principle Languages
Fault Clearance - Core Network
------------------------------------------------------
** of Faults Cleared ** Hours
** of Faults Cleared ** Hours
Fault Not Found Response 0%
Repeat Faults ** within ** Months
Fault Clearance - End-to-End Network
-------------------------------------------------------
** of Faults Cleared or Passed ** Hours
Back to Customer
** of Faults Cleared ** Hours
Faults Not Cleared Within 24 Hours Daily Exception Reports
First Response to Customer Within ** (or customer defined)
Fault Not Found Response 0%
Fault Closure Customer Only
Repeat Faults ** within ** Months
Customer Notification & Reports
-------------------------------------------------------
Core Network Faults - Customer Immediate Broadcast Message to all
Affecting Affected Customers
Summary of all Reported Faults Monthly (or customer defined)
Detail of Faults with (GREATER THAN)
** Hour Resolution Within ** Hours of Fault Resolution
Planned Outages 5 Days Notice (or customer defined)
SCHEDULE 4, PAGE 3
7. NON-PERFORMANCE
Customer understands and agrees that the Performance Levels in this
Schedule 4 are targeted performance levels only.
Customer's sole and exclusive remedy for any non-performance hereunder
shall be as follows:
If any serious problems with the Service due to EQUANT (and not a TO)
persist for a period of ** days (such problems being notified in writing by
Customer), then Customer shall be entitled at its option to suspend the
volume commitments specified in Schedule 2 until the problems have been
fixed;
For the purposes of this provision, 'serious' means a problem which
materially affects Customer's ability to use the Service.
SCHEDULE 4, PAGE 4
