EXHIBIT 10.21
EQUIPMENT PURCHASE AGREEMENT
BETWEEN
VIATEL INC.
AND
NORTEL PLC.
THIS AGREEMENT, DATED DECEMBER 31, 1998 (HEREINAFTER THE "EFFECTIVE DATE"), BY
AND BETWEEN:
NORTEL PLC., WHOSE REGISTERED OFFICES ARE AT MAIDENHEAD OFFICE PARK, ▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (HEREINAFTER CALLED "NORTEL");
AND
VIATEL INC., WHOSE REGISTERED OFFICES ARE AT ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, ▇▇▇ (HEREINAFTER CALLED "VIATEL");
and jointly referred to as the "Parties".
WHEREAS Viatel desires to purchase and/or license various Equipment, Software,
and related Services from Nortel's portfolio of ETSI telecommunications
equipment ("Products") from Nortel for deployment within its telecommunications
network in various countries;
AND WHEREAS Nortel is willing to supply such Products to Viatel upon the terms
and conditions hereinafter contained.
NOW THEREFORE, the Parties agree as follows:
1. DEFINITIONS
The meaning of terms and expressions used herein are set out in Clause 1 of
Annex A hereto.
2. SCOPE
2.1 This Agreement shall govern the ordering and purchase of Products by
Viatel and its Affiliates from Nortel and its Affiliates but nothing in
this Agreement obliges Nortel to provide, or Viatel to order, any
Products.
2.2 Viatel may from time to time identify to Nortel countries in which they
wish to deploy Products or equipment other than the Products that they
wish to deploy in their network whereupon the Parties shall determine the
configuration(s) of such Equipment suitable to Viatel's needs, the
specification with respect thereto and prices therefore applicable to
each country for which Viatel expects to place Orders. The results of
this determination shall be incorporated into Annex C of this Agreement
thus defining the contractual rights and obligations of the Parties in
relation to the type and specification of the Equipment, Software and
Services which Nortel are to provide and the prices which Viatel shall
pay for them.
3. EFFECTIVE DATE, TERM, AND RENEWAL
3.1 This Agreement shall come into force and effect on the Effective Date and
shall continue for a term of [REDACTED] thereafter and shall govern the
provision of any specific Equipment, Software, or Services set forth in
the relevant Annex C hereof. A separate Specification will be prepared
for each product type specific to each country or related group of
countries of deployment and shall be numbered sequentially (C1, C2 etc.).
4. PRICES
4.1 The Prices to be paid by Viatel for Products purchased under this
Agreement shall be those set forth in Annex C as it may be amended
pursuant to the terms hereof.
4.2 Unless the Parties agree otherwise and in respect of deployments within
the European Union, the Prices include Delivery on DDP European Union
Site (INCOTERMS 1990) terms and unloading at the applicable sites. Based
upon the principle that at the date of this Agreement, sales between
member states of the European Union do not attract import duties or sales
taxes other than Value Added Tax, DDP terms will be subject to review
should this change.
4.3 Where sales take place outside of the European Union the Prices shall
include Delivery on a CIP port/airport of entry basis. Where Nortel
undertakes delivery beyond this point then Viatel shall, at Nortel's
direction, promptly reimburse Nortel or pay directly to the applicable
government or taxing authority all taxes and charges arising hereunder,
except for taxes computed upon the net income of Nortel. This shall
include Value Added Tax and taxes on Services which are not included in
the Total Price by virtue of the relevant INCOTERM. Viatel's obligations
pursuant to this Clause 4 shall survive any termination of this
Agreement.
4.4 [REDACTED]
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5. ORDERING PROCESS
The following procedure shall apply to Equipment, Software and related Services
to be supplied and installed by Nortel hereunder:
5.1 The specific terms for the purchase of Products by Viatel are set forth
in this Agreement. Orders shall reference this Agreement and shall be
governed solely by the terms and conditions set forth herein. Orders
shall specify the Viatel nominated address to which the foregoing are to
be consigned, the relevant implementation schedule, and any other
information which may be required to be included in accordance with the
provisions of this Agreement.
5.2 This Agreement sets the master terms and conditions for supply of
Products by Nortel and their Affiliates, and where appropriate, their
distributors, to Viatel and Viatel Affiliates for their own use in
specified countries. The Nortel Affiliates appropriate to the sale of the
Products in each specified country of deployment is set out in Annex B,
Nortel reserves the right to change this detail from time to time by
written notice to Viatel. This list may also be subject to alteration in
relation to purchases of different products. Subject to the terms and
conditions of this Agreement, Viatel or a Viatel Affiliate may place a
Order for Products on Nortel or the appropriate Nortel Affiliate or
distributor covering the territory into which the Products are to be
delivered.
5.3 The Parties recognise that it may not be possible for Nortel to provide
Products for certain countries outside of the European Union by reason of
the non-standardisation of the Products in the country of delivery;
relationships with distributors, agents, manufacturers or other entities
limiting Nortel's ability to sell in such region; the inability of Nortel
to support the delivery, installation or performance of the Products; or
the violation of any applicable law, regulation or contractual
relationship created by any such sale, delivery, installation and/or
performance.
5.4 The Parties recognise that Viatel expects to place Orders that will
comprise one or more Networks or Systems. It is a condition precedent to
the effectiveness of any Order from Viatel with respect to any Product
which comprises part of a Network or System that the Specification with
respect to such Network or System be prepared and added to this Agreement
and numbered sequentially as Annex D1, D2, etc. and that a Guaranteed
Acceptance Date with respect to such Network or System be agreed in
writing between the parties.
6. SUCCESSORS
This Agreement shall be binding upon the Parties to it and their successors and
permitted assigns.
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7. CONTRACTOR NOT AGENT
Nortel agrees that the relationship established by this Agreement constitutes it
as an independent contractor and that this Agreement shall not in any way
constitute Nortel or its employees or agents, an employee, partner or agent of
Viatel nor appoint nor authorise Nortel to act as agent of Viatel and that
furthermore no tax, assessment or legal liability of Nortel or of its employees
or agents becomes, by reason of this Agreement, an obligation of Viatel.
8. NOTICES
Any and all notices or other information required to be given by one of the
Parties to the other shall be deemed sufficiently given when forwarded by
prepaid registered mail, by facsimile or hand-delivered to the other Party at
the following address:
Viatel Inc., Nortel plc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇ ▇▇▇▇▇, Maidenhead,
USA. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: General Counsel Attention: Legal Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile:
and such notices shall be deemed to have been received ten (10) business days
after mailing if forwarded by mail, and the following business day if forwarded
by facsimile or hand-delivered and three (3) business days if forwarded
internationally by an internationally recognised courier service for quickest
delivery. The aforementioned address of either Party may be changed at any time
by giving fifteen (15) business days prior notice to the other Party in
accordance with the foregoing.
Furthermore, for the purpose of service of all notices, writs, or summons or
other documents in any suit at law, action or proceeding which Viatel may take
under the Agreement, and for all legal intent or purposes, Nortel elects
domicile at the aforementioned address.
9. APPLICABLE LAW
This Agreement shall be construed and governed by the laws of the State of New
York. Should any provisions of this Agreement be illegal or not enforceable
under such laws, it or they shall be considered severable and this Agreement and
its conditions shall remain in force and be binding upon the Parties as though
the said provisions had never been included.
The courts of the State of New York in the County of New York or the Federal
courts of the United States of America for the Southern District of New York
shall have exclusive jurisdiction with respect to any litigation between the
parties. Each party submits to the jurisdiction of such courts and submits to
the enforcement of any interim judgements issued by any such courts and agrees
not to object to the jurisdiction of such courts..
10. ASSIGNMENT
Either Party shall have the right to assign all or any part of its rights or
interests under this Agreement to any of its Affiliates without the consent of
the other Party. Such assignment to an Affiliate shall however be notified to
the other Party prior to execution. Otherwise, neither Party shall assign all or
any part of its rights or interest under this Agreement without the prior
written consent of the other Party.
11. PUBLIC RELEASE OF INFORMATION
The Parties shall obtain the written approval one of the other concerning the
content and timing of news releases, articles, brochures, advertisements,
prepared speeches and other information releases concerning this Agreement and
any subsequent Order.
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12. NOT USED
13. ATTACHED DOCUMENTS
The following documents attached hereto form part hereof:
Annex A - Conditions of Order
Annex B - Schedule of Nortel Affiliates.
Annex C - Product Descriptions and Pricing.
Annex D - Specification
14. ENTIRE AGREEMENT
This Agreement including its Annexes sets forth the entire agreement and
understanding between the Parties with respect to the supply and acquisition of
Products subsequent to the date hereof. There are no understandings,
representations, conditions, or warranties, express or implied, statutory or
otherwise, made or assumed by the Parties, other than those expressly contained
in this Agreement. Neither Party shall be bound by any term, clause, provision
or condition save as expressly provided herein or as duly set forth on or
subsequent to the date of this Agreement in writing signed by duly authorised
officers of the Parties except as provided in Section 4.4.
IN WITNESS WHEREOF the Parties have executed these presents on the date first
herein above written.
VIATEL INC. NORTEL PLC.
By: /S/ (SIGNATURE ILLEGIBLE) By: /S/ (SIGNATURE ILLEGIBLE)
------------------------- -------------------------
Name Name:
Title: Title:
Date: 12/31/98 Date: 12/31/98
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ANNEX A
GENERAL CONDITIONS
1 DEFINITIONS AND INTERPRETATION
1.1
The following expressions shall have the meanings hereby respectively assigned
to them:-
1.1.1 "Acceptance"
Means in respect of any System and any Equipment and Software installed and
commissioned by Nortel when Acceptance Certificates shall have been issued in
respect of that System or any part thereof in accordance with the process
described in Clauses 15 and 16 hereof. "Accept" and "Accepted" shall be
interpreted accordingly.
1.1.2 "Acceptance Certificate"
Means the certificate to be issued when a System or any specified part thereof
has satisfactorily completed the appropriate Acceptance Tests, in accordance
with the requirements of Clauses 15 and 16 hereof.
1.1.3 "Acceptance Tests"
Means such tests described in Clauses 15 and 16 hereof carried out pursuant to
test specifications acceptable to Viatel, as may be undertaken by Nortel to
demonstrate to the reasonable satisfaction of the Parties that a System as
installed and commissioned on Site by Nortel or any integral part thereof
complies with the Specification and other provisions of the Agreement.
1.1.4 "Affiliate"
Means a Party's parent company, or any corporation or company effectively
controlled directly or indirectly by such parent company through the ownership
or control of shares or other securities in such corporation or company and, in
the case of Nortel, listed on Annex B. Nortel Dasa GmbH. of Germany shall for
the purposes of this Agreement also be treated as an Affiliate of Nortel.
1.1.5 "Amendment"
Means the written document executed by both Parties by which changes to the
Agreement are effected pursuant to Clause 3.
1.1.6 "Delivery Acceptance"
Means the Acceptance that takes place at the successful conclusion of Delivery
Acceptance Testing as set forth in Clause 15.1.a) hereof.
1.1.7 "Equipment"
Means all items of hardware which Nortel is required to supply to meet the
requirements of this Agreement and any Order placed by Viatel pursuant to the
terms hereof, including those items set forth in Annex C.
1.1.8 "Guaranteed Acceptance Date"
Means, with respect to any System that Viatel may order hereunder, the date
which is specified as the "Guaranteed Acceptance Date" for that System which is
set forth in a written notice from Viatel and accepted by Nortel.
1.1.9 "Network"
Means any combination of Equipment, Software and/or Services which comprise a
telecommunications network or sub-set thereof and which are ordered under one or
more Orders.
1.1.10 "Network Acceptance"
Means the Acceptance that takes place at the successful conclusion of Network
Acceptance Testing as set forth in Clause 15.1 c) hereof.
1.1.11 "Network Price"
Means the aggregate of all the Order Prices to be paid by Viatel and its
Affiliates to Nortel and its Affiliates hereunder for a Network.
1.1.12 "Nortel"
Means Nortel Plc. or its nominated Affiliate and includes its successors and
permitted assigns.
1.1.13 "Order"
Means the purchase order placed by Viatel's appropriate Affiliate on Nortel's
appropriate Affiliate for the provision of Works incorporating these terms and
Specifications and other documents contained herein.
1.1.14 "Order Price"
Means the price payable to Nortel by Viatel pursuant to the terms hereof for
items of Equipment, Software, the performance of the Work, or for Services as
detailed in Annex C.
1.1.15 "Provisional Acceptance"
Means the Acceptance that takes place at the successful conclusion of
Provisional Acceptance Testing as set forth in Clause 15.1 b) hereof.
1.1.16 "Services"
Means, as appropriate to any particular Order, the factory testing, engineering,
testing, installation and commissioning of the Equipment and the testing of a
Network and other services specified or reasonably inferred herein, including
everything necessary to complete the installation of the Equipment in accordance
with the terms of this Agreement.
1.1.17 "Site"
Means the land, buildings and environment where a System is to be installed or
the storage premises nominated by Viatel.
1.1.18 "Software"
Means the set of machine readable instructions provided by Nortel for the
control and operation of the System.
1.1.19 "Specification"
Means any Specification incorporated in Annex D.
1.1.20 "System"
Means the Equipment and Software integrated as necessary to meet the
requirements of the Specification and the other provisions of this Agreement.
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1.1.21 "Viatel"
Means Viatel Inc. or its nominated Affiliate and includes its successors and
permitted assigns.
1.1.22 "Work"
Means, as appropriate to any particular Order, the (i) manufacture, factory
testing, engineering, testing, installation and commissioning of the Equipment
and testing of the specified System in accordance with all the terms and
conditions contained in this Agreement, (ii) all services necessary so that any
System to be provided by Nortel hereunder shall be in accordance with the
Specification relevant thereto and the other requirements of this Agreement,
(iii) the provision of materials, test equipment, labour and services as
necessary for the terms of this Agreement, (iv) complying with the Guaranteed
Acceptance Date, (v) complying with the Warranties during the applicable period,
(vi) technical and other co-ordination with Viatel and its Project Manager such
that the System shall be compatible with the Specifications, and (vii) all other
matters specified as the responsibility of Nortel in this Agreement.
1.2
Words indicating the singular only also include the plural and vice versa where
the context requires.
1.3
The heading of the terms shall not affect their interpretation.
1.4
The term "including" shall mean "including, without limitation".
1.5
Any reference to any gender includes the other gender.
1.6
Any reference to "hereof", "hereto", "herein", "hereunder" or any similar term
is a reference to this Agreement as a whole, and not to any particular provision
or part of this Agreement.
1.7
Any reference to "this Agreement" shall include all appendices, exhibits,
annexes and schedules thereto, and be a reference to such agreement, instrument,
contract or other document as amended, supplemented, modified, suspended,
restated or novated from time to time.
2. DOCUMENTS
All drawings, diagrams, Specifications and any other information to be provided
by one Party to the other Party hereunder shall be supplied in the English
language.
3. ALTERATION TO ORDER
3.1
All alterations, waivers, consents or amendments shall be mutually agreed
between Viatel and Nortel and recorded by means of formal Amendments executed by
Viatel and by Nortel before it is effective.
3.2
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From time to time, Nortel may submit to Viatel a request for, or Viatel may
submit to Nortel a proposed amendment that may result in:
(a) an increase or decrease in a unit Price contained in Annex C or the
total Network Price set forth in Annex C ; or
(b) an adjustment in a Guaranteed Acceptance Date, the project schedule,
the progress schedule and any other dates related to Nortel's
performance set forth in the scope of work.
As a result of the following:
(i) any Force Majeure; or
(ii) any change in any applicable law occurring after the Effective Date; or
(iii) an Optional Suspension.
Viatel's grant of an adjustment shall not constitute a waiver of any of its
rights in respect thereof.
4. PRICES
The prices stated herein shall be firm and fixed in United States of America
Dollars ($US) and shall not be varied except by formal Amendment as permitted
herein or as contemplated pursuant to Clause 4.4 of the Agreement.
5. TAXES, DUTIES AND LEVIES
Responsibility for customs formalities, including administration charges,
duties, taxes and/or levies payable upon exportation or importation of Equipment
shall be apportioned in accordance with the INCOTERM shipping term set forth in
Clause 4 of the Agreement or in Annex C. In any event, Viatel shall be
responsible for the payment of Value Added Tax as an addition to the Price at
the rate prevailing at the date of invoice.
6. TERMS OF PAYMENT
6.1
Invoices shall be submitted to Viatel by Nortel in accordance with the following
payment schedule:
6.1.1 Networks:
i) [REDACTED] of the Price upon placement of an Order hereunder.
ii) [REDACTED] of the value of each item on the date of shipment of
each item of the Equipment and Software.
iii) [REDACTED] of the value each item of Equipment and Software upon
Provisional Acceptance.
iv) [REDACTED] of the Price upon Network Acceptance.
v) [REDACTED] of the value of each item of Services upon its
completion.
6.1.2 Additional Items
Payment of the Price for Additional Items shall become payable as
follows:
6.1.2.1 In the case of supply and install items, the pattern of payment shown
in 6.1.1 above shall apply except that where Network Acceptance is not
a requirement of an Order then the payment set forth in Clause 6.1.1
iv) shall be made upon Provisional Acceptance..
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6.1.2.2 In the case of supply only items, the pattern of payments shown below
shall apply:
i) [REDACTED] of the Price upon Nortel's acceptance of purchase
order.
ii) [REDACTED] of the Price upon shipment of the Equipment and/or
Software.
6.2
Payment shall be made to Nortel by Viatel within 30 days of receipt of Nortel's
invoices. Subject to Section 6.3, in the event that Nortel does not receive
payment within 45 (forty five) calendar days of Viatel's receipt of an
undisputed invoice, then Nortel reserves the right to charge daily interest upon
the outstanding sum(s) at a rate which is 2% (two percent) above the Midland
Bank Base Lending Rate as then current until Nortel receives payment in full.
6.3
Viatel may withhold payment where it can be shown to protect Viatel from
financial loss when:
a) defective work attributable to Nortel has not been remedied by Nortel;
b) there are third party claims against the Equipment, or Nortel pursuant to
the terms hereof by virtue of the acts or omissions of Nortel;
c) Nortel has failed to obtain or maintain insurance as required by Clause 20
hereof;
e) Nortel has failed to provide all documentation required hereunder;
f) Nortel's failure to pay an amount of liquidated damages;
g) Nortel has failed to properly make payments for materials or labour;
h) Viatel can demonstrate that any prior progress payment exceeds the amount
that should have been payable based upon the Work actually performed.
In all cases, the amount withheld shall not exceed the amount which would
otherwise have become due to Nortel but for Nortel's shortcoming in meeting the
contractual obligation in question. When Nortel has rectified its shortcoming,
then the sum withheld shall be paid by Viatel forthwith.
7. DELIVERY TERMS, PROPERTY AND RISK
7.1
Nortel shall undertake delivery of Equipment in accordance with the Order
implementation plan upon shipping terms in accordance with INCOTERMS 1990
published by the International Chamber of Commerce set forth in the Order and
determined in accordance with Clause 4 of the Agreement.
7.2
A schedule of the Equipment shall be submitted to Viatel prior to delivery to
facilitate the checking of consignment contents by Viatel when deliveries are
made.
7.3
Risk of loss or damage to the Equipment shall pass upon Delivery Acceptance.
7.4
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Equipment supplied pursuant to this Agreement shall become the property of
Viatel at the time that payment of the Price is made in full by Viatel to the
extent required pursuant to the terms of this Agreement.
7.5
Viatel shall not acquire any rights in respect of the Software other than the
licence with respect to Software granted in accordance with Clause 19.
8. PERSONNEL
8.1
Both Parties shall appoint project managers who shall each:
a) be fully conversant with the requirements of this Agreement; and
b) speak English on a technical level; and
c) have full control of their employer's personnel, including any of its
subcontractors, engaged in the performance of this Agreement.
8.2
The Parties shall ensure that their staff assigned under the Agreement are
suited in skill, health and temperament to undertake their duties. Viatel may
object to and direct Nortel to remove within 24 hours any person employed by
Nortel and such person shall not be employed again for any portion of the
Services hereunder without the prior approval of Viatel.
9. SITE INFORMATION
9.1
When requested by Nortel to do so, Viatel shall supply Nortel with accurate and
complete information in all material respects concerning a Site and any
equipment and facilities installed thereon, and shall within a reasonable time
advise Nortel of any alterations thereto during this Agreement, and shall
prepare a Site for installation in accordance with Nortel's reasonable
requirements.
9.2
Nortel shall ensure that each System complies with all applicable legal
requirements. Nortel shall comply with all laws, codes, permits, standards
applicable in the countries, provinces and territories in which any part of the
Services are to be performed. Viatel shall not be responsible for any act or
omission of Nortel that violates any such law, code, permit or standard, and
Nortel shall indemnify and hold harmless Viatel from and against any and all
costs or liabilities arising in connection with any such violation by Nortel.
9.3
At Nortel's request Viatel shall afford Nortel access to any Site at all
reasonable times.
10. LOCAL FACILITIES AND SERVICES
10.1
Viatel shall be responsible for the reasonable provision and costs of:
(i) any crane, slings or other specialist lifting or positioning equipment
required to facilitate installation activities on Site which Viatel
shall ensure are in safe working condition.
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(ii) suitable office and temporary storage facilities for use by Nortel or
its sub-contractors until the date of Acceptance.
(iii) interpreters as may be necessary to assist Nortel's personnel in their
duties under the Order.
(iv) the fencing, lighting and guarding of the Site.
(v) the supply of telephone, fax, electricity, water and gas facilities as
may be required by Nortel
(vi) approaches to the Site suitable for Nortel's delivery vehicles.
10.2
Viatel shall obtain at its own expense, prior to the date scheduled for
commencement of any work on Site, all necessary consents, licences and permits
for the installation and use of the Equipment and Software which it shall be
required under applicable law to obtain as the owner of any applicable System.
11. PROGRESS
11.1
If Nortel at any time has reason to believe that the schedule for the
performance of the Work may be delayed Nortel shall promptly notify Viatel.
11.2
If and to the extent that the schedule for the performance of the Work is
delayed by reasons of Force Majeure the provisions of Clause 12 shall apply.
11.3
If Viatel at any time has reason to believe that the date by which Viatel is to
provide Sites, equipment or services ready for use by Nortel may be delayed
Viatel shall promptly advise Nortel. In such event Nortel shall be granted an
extension of time to the Guaranteed Acceptance Date in a number of days to be
agreed by the Parties, but no more than the amount of the delay directly
attributable to Viatel. The costs and expenses incurred which are directly
attributable to the delay (less any savings) shall be recoverable from Viatel
and reflected in an appropriate Amendment to be agreed between the Parties.
Nortel shall use reasonable efforts to mitigate such costs and expenses.
11.4
Viatel may suspend the Work, in whole or in part, at any time from time to time,
upon written notice to Nortel of such suspension, stating the effective date and
anticipated duration of the suspension ("Optional Suspension"). Promptly after
receipt of such notice (and in any event, within 10 days), Viatel shall suspend
the Work to the extent specified. During any Optional Suspension, Nortel shall:
a) place no further orders relating to the suspended Work;
b) shall negotiate reasonably with Viatel to reschedule the manufacture of
Equipment;
c) protect and care for all Work and Equipment already manufactured;
d) give Viatel copies of all outstanding orders with respect to the Work,
materials and services and take any action with respect to such orders as
Viatel may reasonably direct.
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Thereafter, Nortel:
(i) shall resume performance of the Work within a reasonable period after being
directed to do so by Viatel; and
(ii) shall be entitled to an amendment to the Price and Guaranteed Acceptance
Date as agreed by the Parties. All additional costs incurred by Nortel
during an Optional Suspension shall be reimbursed to Nortel by Viatel.
Nortel shall use reasonable efforts to mitigate such costs and expenses.
Should the period of Optional Suspension continue for longer than three
months then Nortel shall be entitled to terminate the Orders with respect
to which the Optional Suspension applies.
12. FORCE MAJEURE
12.1
The following events shall constitute Force Majeure events:
a) Any destruction of or damage to, or any interruption, suspension or
interference with, the Work caused by Acts of God, landslides, lightning,
earthquakes, volcanic eruptions, fires, explosions, floods, epidemic,
plague, acts of a public enemy, wars, revolutions, blockades, riots,
rebellions, sabotage, insurrections, civil disturbances or similar
occurrences;
b) Any national, regional or local labour strike, work stoppage, boycott or
walk-out occurring other than any such which pertains solely to Nortel's
employees, (collectively "Labour Disputes") so long as Nortel has advised
Viatel as far in advance as possible of such Labour Dispute; and
c) Any suspension, termination, interruption, denial or failure to obtain or
renew any permit that Viatel has the responsibility to obtain;
d) Any act or omission of Viatel, its agents or subcontractors;
provided that Force Majeure shall not include any of the forgoing to the
extent that:
(i) it is or was within Nortel's control, provided that the forgoing does
not imply that Nortel must meet any labour demand;
(ii) Nortel should have been able to prevent or provide against it by
exercise of reasonable diligence;
(iii) It does not result in a material delay to, and/or increase in cost
of, the Work to Nortel;
(iv) It results from the fault or negligence of Nortel, its affiliates,
subcontractors or vendors.
12.2
In the event that either Party shall be prevented from material performance of
its obligations hereunder by reason of an event of Force Majeure for a
continuous period of more than six months the other Party shall have the right
to terminate the Agreement by notice in writing whereupon the provisions of
Clauses 21.5 or 22.6 as appropriate shall apply.
12.3
Notwithstanding Clause 12.1, such cause shall not apply to Viatel's obligation
to make payments hereunder.
13. [REDACTED]
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14. FACTORY TESTS AND INSPECTIONS
14.1
Nortel shall be responsible for standard factory testing procedures which will
ensure that the Equipment meets the needs of the System and the other terms and
conditions of the Agreement.
14.2
Viatel shall have the right to inspect Nortel's manufacturing facility and
witness factory testing and shall give Nortel, in writing, 30 calendar days'
notice of its intention to visit Nortel's facility. In any event the factory
tests shall proceed according to Nortel's plan which has been disclosed to
Viatel in writing whether or not Viatel's representative is in attendance.
14.3
Viatel shall be responsible for all costs and expenses in respect of its
representative(s) visiting Nortel's facility. Whilst on Nortel's premises
Viatel's representative(s) shall comply with all Nortel's regulations in force.
15. ACCEPTANCE TESTING
15.1
Nortel shall submit for the approval of Viatel a comprehensive schedule of tests
in respect of Equipment and Software, which Nortel is to install and commission
on Site, designed to demonstrate that a System and each portion thereof will
perform in accordance with the criteria defined in the relevant Specification
and the other terms and conditions hereof. The schedule of Acceptance Tests will
vary according to the extent of the Work required under each Order. These shall
comprise the combination of the following which most effectively meets the
requirements of each Order:
a) Delivery Acceptance Testing - this will take place following installation
of the Equipment at each installation Site and its connection to its
specified electricity supply. It shall demonstrate that the Equipment and
Software so installed works correctly in isolate mode. Where supply only
items are a requirement of an Order, Delivery Acceptance shall be effected
by Viatel and acceptance or rejection communicated to Nortel within 10
working days of receipt.
b) Provisional Acceptance Testing - this will be carried out on each completed
route or node following the connection of all of the Equipment and Software
within the said route or node already the subject of Delivery Acceptance.
It shall demonstrate that the System comprised in the route or node can
provide the facilities and services required for each route or node and
that the route or node will carry traffic all as set forth in the
Specification.
c) Network Acceptance Testing - this will be carried out on the completed
Network following connection of all of the routes and nodes which have
passed Provisional Acceptance. It shall demonstrate that the total System
meets the technical requirements set forth in the Specification and the
other terms and conditions of this Agreement. For non-Network Orders,
Network Acceptance Testing will not be a requirement.
Viatel shall approve the schedule of tests, or reject on the grounds of
non-compliance with this Agreement, within 14 (fourteen) days of submission by
Nortel.
9
15.2
Nortel shall give Viatel 14 (fourteen) days notice in writing of the
commencement of the each of the tests of the System or any Equipment or Software
thereof so that Viatel can either make the necessary arrangements for its
representative to be present to witness such tests and approve results or advise
Nortel that its representative will not attend.
15.3
On satisfactory completion of each schedule of tests a comprehensive record of
results shall be provided by Nortel to Viatel. If Viatel has advised Nortel in
accordance with Clause 15.2 that its representative will not attend the testing
of any part or parts of the System, the schedule of results shall be annotated
to this effect by Nortel.
16. ACCEPTANCE
16.1
Acceptance of each portion of the System as set out in Clause 15 above, shall be
signified by the appropriate Acceptance Certificate signed by Viatel upon
satisfactory completion of each of the Acceptance Tests, where applicable.
Viatel will not unreasonably refuse to sign an Acceptance Certificate on account
of minor omissions or defects which do not materially affect the use of the
System.
16.2
In the event that the Equipment and/or Software or any portion thereof is put
into use for commercial purposes by Viatel after completion of the applicable
tests but prior to its signature of an appropriate Acceptance Certificate, then
the appropriate Acceptance shall be deemed to have taken place upon the date of
such putting into use for commercial purposes, unless within a reasonable time
Viatel shall have given written notice to Nortel of material shortcomings in the
Network as demonstrated by the Acceptance Tests or other terms and conditions of
this Agreement which it requires Nortel to rectify. Such Acceptance shall be
without prejudice to Nortel's obligations to complete the System in accordance
with the requirements of the Agreement.
16.3
The Network Acceptance Date, where applicable, shall occur when the Network
Acceptance Certificate has been issued as set forth above. It shall be a
condition precedent to the issuance of the Network Acceptance Certificate that
the following conditions have been satisfied:
a) an initial commissioning report has been delivered;
b) that the System has been completed in accordance with the Specification and
any other requirements of this Agreement as demonstrated by the Acceptance
Tests;
c) that the System has achieved all performance requirements during the
Network Acceptance Tests;
d) that the System is available for commercial operation as described in the
Specification;
e) that all liens relating to the system have been discharged and releases
given therefor, except for those which may apply by virtue of any financing
arrangement which Viatel are using to make the purchase.
f) that no unresolved event of default by Nortel exists;
g) that all requirements of the Agreement relating to the System, or such
smaller portion of the System as has, by the mutual agreement of the
Parties, undergone Acceptance (including all technical requirements) have
been fulfilled and all required documentation has been completed, in each
case other than those that do not, by the express terms hereof, have to be
fulfilled on or completed prior to Network Acceptance.
10
16.6
Final Acceptance with respect to a System shall occur when Viatel issues a
Certificate of Final Acceptance acknowledging that the following conditions have
been satisfied:
a) A Delivery, Provisional or Network Acceptance Certificate as appropriate
has been issued;
b) the Warranty Period shall have expired and there shall be no outstanding
warranty claims thereunder;
c) all documentation required under the Agreement has been delivered;
d) there shall be no outstanding liens except for those which may apply by
virtue of any financing arrangement which Viatel are using to make the
purchase.
17. WARRANTY
17.1
The following shall be Nortel's general warranties ("General Warranties"):
a) The Work, including the Equipment and Software shall meet the performance
criteria set out in the Specification;
b) The Work shall be done in a workmanlike manner and in accordance with:
(i) best practices of the telecommunications industry;
(ii) all applicable mandatory requirements of the law of the country of
deployment;
(iii) all other workmanship requirements specified in the Agreement.
(iv) be free from defects in design, materials, installations or
workmanship.
c) The Equipment shall be new and Equipment and Software (except where
expressly specified in the Agreement), fit for the purpose specified in the
Agreement, and shall meet the requirements of the Agreement; and
d) The Equipment shall be:
(i) fit for the purpose of transmitting and receiving telecommunications
signals of the type specified in the Agreement;
(ii) capable of achieving the performance specification set out in the
Specification; and
(iii) built strictly in accordance with the Specification.
The warranty period ("Warranty Period") shall end: [REDACTED]
Notwithstanding the appropriate Acceptance having occurred, Nortel undertakes
that during the Warranty Period, it shall promptly repair or replace, at its
option, without charge to Viatel, the whole or any part of the System found to
be faulty by reason of the above causes. This Warranty shall not apply to
consumable items or routine maintenance materials.
11
17.2
Any parts found not to be compliant with the Warranty in Clause 17.1 shall be
returned by Viatel to Nortel's works, carriage and insurance to Nortel's
account, and the replacement or repaired parts supplied by Nortel shall be
delivered free of charge to the Site.
17.3
In the event of a major service-affecting failure during the Warranty Period
Nortel shall promptly:
(a) advise any corrective action that Viatel may be able to take on Site; or
(b) despatch by express delivery such parts and/or Software as may be necessary
to restore the System; or
(c) send an appropriate specialist to Site and maintain him there at no cost to
Viatel for as long as is necessary to rectify the defect.
Nortel shall make every reasonable effort to minimise the period of time that
the System is out of service for repair and testing. For failures or any
situations that cause or risk an outage of the Network, Nortel shall initiate a
corrective action immediately after receipt of notice from Viatel. Upon any
breach of the Warranties contained herein during the applicable Warranty Period,
Viatel may, to the extent that Nortel has failed to (i) make prompt repair or
replacement, or (ii) minimise System out-of-service time for testing and repair,
arrange for the repair or replacement of any defective Work and Nortel shall
reimburse Viatel for the cost of repairs or replacements.
17.4
Nortel shall have no obligation to repair or replace Equipment and/or Software
which has been abused, used in unauthorised applications in accordance as per
Clause 19 hereof, altered, or used in conjunction with third party material
which is defective or of poor quality, or which has been operated and maintained
by Viatel with a material lack of compliance with Nortel's operating and
maintenance instructions. Nortel shall be entitled to charge Viatel for any work
performed in investigating and/or rectifying problems not covered by the
provisions of Clause 17.1.
17.5
EXCEPT AS PROVIDED BY APPLICABLE LAW, THE WARRANTY PROVIDED IN THIS CLAUSE 17
CONSTITUTES THE SOLE LIABILITY OF NORTEL IN RESPECT OF THOSE MATTERS TO WHICH IT
REFERS. ALL OTHER TERMS, CONDITIONS AND WARRANTIES EXPRESSED OR IMPLIED WHETHER
STATUTORIALLY OR OTHERWISE ARE HEREBY EXPRESSLY EXCLUDED TO THE EXTENT THAT THE
PARTIES CANNOT SO EXCLUDE AT APPLICABLE LAW.
18. SUPPORT
For a period of 10 (ten) years from the date of Acceptance with respect to any
System Nortel shall, if required by Viatel, supply any spare or replacement
parts, or suitable alternatives, for the Equipment at the prices then
prevailing.
19. RIGHTS TO USE THE SOFTWARE
12
19.1
In consideration of Viatel paying to Nortel fees as specified in the Order,
Nortel grants to Viatel a permanent (subject to compliance with terms hereof)
non-exclusive non-transferable Right to Use licence in respect of the Software
and associated documentation delivered in accordance with this Agreement. Viatel
shall not duplicate nor modify nor disassemble nor decompile the Software except
as provided for under the Council of the European Communities Directive on the
legal protection of Computer Programs dated the 14th May 1991 (91/250/EEC) and
furthermore Viatel shall not divulge or otherwise make available any Software or
associated documentation to persons other than its employees without the prior
written consent of Nortel.
19.2
The Right to Use licence is granted on condition that the Software is utilised
for the operation and maintenance of the appropriate elements of the System as
detailed herein and for no other purpose and on no equipment other than the
Equipment without the prior written authorisation of Nortel.
19.3
This Software licence is granted only on those features identified in the
Software Specification and for which licence fees have been paid in accordance
with the Price Schedule. Viatel understands that Nortel may furnish within the
Software load features which Viatel is not granted a right to use by virtue of
not being included within the specified licence fees, but may nevertheless be
accessible to them. Where Viatel wishes to use such non-licensed features then
it shall be entitled to do so subject to payment of the applicable additional
Software right to use fee prior to commercial deployment of such non-licensed
Software feature or functionality.
19.4
The conditions of this Clause 19 shall survive the expiry or termination of the
Agreement except where termination is by virtue of breach of the software
licence.
20. LIABILITY AND INSURANCE
20.1
Each Party shall be indemnified by the other Party against any liability, loss,
claim and/or proceedings whatsoever in respect of personal injury to and/or
death of any person and damages to and/or loss of tangible property howsoever
arising pursuant to this Agreement or any breach thereof due to the acts or
omissions of such other Party, its servants or agents.
20.2 [REDACTED]
20.3
IN NO EVENT SHALL EITHER VIATEL OR NORTEL BE LIABLE, WHETHER AS THE RESULT OF
CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, OR OTHERWISE
HOWSOEVER ARISING, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR ANY
DAMAGES ARISING FROM OR ATTRIBUTABLE TO FAILURE TO REALISE EXPECTED SAVINGS,
LOSS OF DATA, CAPITAL DOWNTIME COSTS, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF
ANTICIPATED OR ACTUAL REVENUE OR PROFIT EVEN IF EITHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF ANY SUCH DAMAGES.
13
20.4
Subject to sub-clause 20.1 of these conditions in the event that Nortel is found
liable for breach of its obligations under an Order then its total liability
shall not under any circumstances exceed the Order Price for any breach or
breaches.
20.5
20.5.1 Nortel shall insure the Works and keep each part thereof insured for
their full replacement value against all loss or damage from whatever cause
arising until a Delivery Acceptance Certificate has been issued. All monies
received under any such policy shall be applied in or towards the replacement
and repair of the Works lost, damaged or destroyed.
20.5.2 Nortel shall, prior to commencing work on the Site pursuant to the
Agreement, insure in an amount which shall not exceed [REDACTED] per event,
against his liability for damage or death or personal injury occurring before
the Works have achieved Acceptance, to any person (including any employee of
Nortel or Viatel) or to any property (other than property forming part of the
Works) due to or arising out of the execution of the Works.
20.5.3 Nortel shall insure and shall maintain insurance against his liability
for accidents or injuries to their employees.
20.5.4 If Nortel shall fail to effect and keep in force the insurances specified
herein then Viatel may effect and keep in force any such insurance and pay such
premium or premiums as may be necessary and from time to time deduct the amount
so paid by Viatel from any monies due or which may become due to, or recover the
same as a debt due from Nortel. Nortel shall furnish Viatel with documentary
evidence as to the existence of the above policies.
21. TERMINATION BY VIATEL
21.1
If Nortel shall be in material breach of the its obligations under an Order and
Viatel shall so inform Nortel by notice in writing and should the breach
continue for more than 30 (thirty) days, or such longer period as may be
specified by Viatel, after such notice then Viatel may terminate the Agreement
or the Order by notice in writing to Nortel and may suspend further payment to
Nortel pending resolution of financial settlement pursuant to the conditions set
out below.
21.2
Upon termination of the Agreement or an Order as provided in Clauses 21.1 or 23
Nortel shall forthwith cease work and remove its labour from the relevant Site.
However Nortel shall not remove from the relevant Site any Equipment, the title
of which has not passed to Viatel, nor any of its installation tools or
materials unless given permission to do so in writing by Viatel. Viatel may
elect to complete the purchase of any such Equipment and use any such
installation tools or materials by paying Nortel the unpaid price of such
Equipment and a fair price for use of such tools and/or materials less any
amount payable hereunder by Nortel to Viatel.
21.3
Upon termination of the Agreement or an Order as provided for in Clauses 21.1 or
23, Viatel may at its option;
21.3.1 reject the relevant System and elect to retain such portion(s) of the
relevant System as it may determine. Nortel shall refund any amount(s) of money
to Viatel which Viatel has paid in respect of the rejected items subject to the
payment by Viatel to the extent required to the for those items which Viatel
elects to retain (less any amount payable hereunder by Nortel to Viatel), and/or
14
21.3.2 continue work either by itself or by sub-contracting to a third party to
complete the System. Nortel shall if so required by Viatel to the extent
allowable by such agreements, within 14 (fourteen) calendar days of the date of
termination assign to Viatel without payment the benefit of any agreement for
supply of materials or goods and/or execution of any work for the purposes of
the Agreement. In the event that Viatel had already paid the price thereof to
Nortel, then Nortel shall promptly repay such sum(s) to Viatel. In the event of
the System being completed by Viatel or a third party and the total cost
incurred by Viatel in so completing the System being greater than that which
would have been incurred had the Order not been terminated then Nortel shall pay
to Viatel such excess up to a maximum of the Order Price.
21.4
In addition to any other powers to terminate the Agreement Viatel shall have the
power to terminate an Order in whole or in part for its own convenience at any
time up to 30 days prior to the scheduled date for delivery of the Equipment or
carrying out of the Services contained in that Order by giving notice in writing
to Nortel. In the event of Viatel exercising such power of termination Nortel
shall carry out Viatel's reasonable instructions in regard to termination.
21.5
Upon termination by the Viatel in accordance with the provisions of Clauses 12
or 21.4 Nortel shall immediately cease work and Viatel shall pay to Nortel
forthwith upon termination the proportion of the Order Price applicable to the
portion or portions fully or substantially performed prior to the termination in
accordance with pricing set forth in Annex C.
21.6
Termination of an Order shall be without prejudice to the rights and remedies of
the parties accrued under the Agreement immediately prior to the termination.
22. TERMINATION BY NORTEL
22.1
Nortel shall not have the right to terminate an Order except for reasons of
Force Majeure (Clause 12) or in the event of actual insolvency of Viatel (Clause
23) or in respect of a material breach of the terms and provisions of the
Agreement by Viatel (Clause 22.2).
22.2
Without prejudice to the provisions of Clause 22.3, if Viatel shall be in
material breach of it obligations under the Agreement and Nortel shall so inform
Viatel by notice in writing and should the breach continue for 30 (thirty) days
after such notice, or, in the case of failure by Viatel to pay any sum due to
Nortel hereunder, 10 (ten) working days after such notice, Nortel shall without
prejudice to any of its other rights and remedies have the right to immediately
terminate the Agreement and claim from Viatel for any resulting loss or damage.
22.3
Notwithstanding the provisions of Clause 22.2, in the event of a material breach
or violation of the Software Right to Use conditions (Clause 19) by Viatel,
Nortel shall inform Viatel by notice in writing and should the breach or
violation continue for more than 14 (fourteen) days after such notice Nortel may
terminate the Software Right to Use licence forthwith.
22.4
15
Upon termination of the Software Right to Use licence in accordance with Clause
22.3 Nortel may, at its absolute discretion, either require Viatel to return all
copies of the Software and associated documentation within 14 (fourteen) days of
the notice to do so, or permit Viatel the continued use of the Software and
associated documentation upon such terms as Nortel may direct.
22.5
Application of the provisions of Clause 22.4 shall be without prejudice to
Nortel's right to recover costs and/or damages for breach of contract by Viatel.
The sums to be paid by Viatel to Nortel in respect of such costs or damages
shall be as agreed by the Parties or as awarded by a court of competent
jurisdiction subject to the limitation set forth herein.
22.6
Upon termination by Nortel in accordance with the provisions of Clause 12.2,
Viatel shall pay to Nortel forthwith upon termination the proportion of the
Order Price applicable to the portion or portions of the Order which have been
delivered or are in progress of manufacture (unless such Equipment is sold to a
third party) plus the price of services performed prior to such termination,
together with any additional sums properly expended by Nortel in regard to
termination plus a reasonable rate of profit on the same (less any savings).
Nortel shall have a duty to mitigate damages hereunder.
23. INSOLVENCY AND LIQUIDATION
If either party shall commence any case, proceeding or other action under any
law relating to bankruptcy, insolvency, reorganisation or relief of debtors,
seeking to have an order for relief entered with respect to or seeking to
adjudicate it a bankrupt or insolvent or seeking reorganisation, arrangement,
adjustment, winding up, liquidation, dissolution, composition or other relief
with respect to it or its debts or seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or shall make a general assignment for the
benefit of its creditors or there is commenced against it any such action, case,
or proceeding, then the other Party shall be entitled to terminate the Agreement
and exercise any remedies provided for herein or in law.
24. PATENTS AND COPYRIGHTS
24.1
Nortel shall defend and indemnify Viatel against all actions or claims for
infringement of patents, copyright, registered design or other intellectual
property rights arising by reason of Viatel's purchase, possession or use of
Systems, the Software, or the Equipment provided that Viatel:
(i) gives notice to Nortel of any actual or threatened action or claim within
a reasonable time of becoming aware of the same; and
(ii) gives Nortel the sole conduct of the defence to any actual or threatened
action or claim in respect of an alleged intellectual property
infringement and does not at any time, following receiving a threat of or
notice of commencement of proceedings, admit liability or otherwise
attempt to settle or compromise the said action or claim except with the
prior written consent of Nortel; and
(iii) acts in accordance with the reasonable instructions of Nortel and gives to
Nortel such assistance as it shall reasonably require in respect of the
conduct of the said defence including, without prejudice to the generality
of the foregoing, the filing of all pleadings and other court process and
the provision of all relevant documents. In this respect Nortel shall
reimburse Viatel's reasonable out of pocket expenses incurred in such an
exercise.
16
24.2
In the event that it is held that there is an infringement as described in
Clause 24.1, Viatel agrees that Nortel's total liability in addition to the
payment of any losses or damage awarded against Viatel shall, at Nortel's
option, be either :
(i) to modify the System or part thereof so that it does not infringe; or
(ii) to replace the System or part thereof with non-infringing products; or
(iii) to procure for Viatel the right for Viatel to continue its use of the
System
In the event that Nortel cannot perform under (i), (ii) or (iii) above, Viatel
shall have the right to return the infringing Equipment and / or Software to
Nortel following written notice to Nortel, and in the event of such return,
neither Party shall have any further liabilities or obligations in respect of
such Equipment and Software, except that Nortel shall refund the Order Price and
take possession of the affected Equipment and Software.
24.3
This indemnity shall not extend to infringement resulting from use or adoption
by Nortel of Viatel's parts, designs or specific instructions or from use of the
System, the Equipment or the Software in a manner or for a purpose not stated in
the Specification or in the event that Viatel makes an admission, following
receiving a threat of or notice of commencement of proceedings, which is or may
be prejudicial to Nortel's case.
24.4
The copyright in all drawings, specifications and data issued by either Party in
connection with the Agreement shall remain the property of the issuing Party but
the other Party shall be entitled for all reasonable purposes in connection with
the Agreement to a personal, non-exclusive, non-transferable licence, free of
charge, to use such drawings, specifications and data. Use by the other Party of
such drawings, specifications and data for any other purpose will entitle the
issuing Party to terminate such license forthwith.
25. CONFIDENTIAL INFORMATION
Each Party shall keep confidential and shall disclose only to its own employees
and agents to the extent necessary for the performance of this Agreement and
shall not, without the other Party's prior written consent, disclose to any
third party any document or information acquired from the other Party pursuant
to the Agreement and such documents and information shall only be used for the
purpose of the Agreement provided however that nothing shall prevent either
Party from disclosing information which:
(a) is in its possession with the full right to disclose prior to receiving it
from the other Party or,
(b) is or later becomes public knowledge other than by a breach of this Clause
25 or,
(c) it may independently receive from a third party with the full right to
disclose or,
(d) is developed independently of the information disclosed under this Clause
25 or,
(e) is required by law to be disclosed,
subject, in the case of disclosure to agents, to the signature by such agents of
a confidentiality undertaking in favour of the party to whom any relevant
information belongs in terms equivalent to the provisions of this clause 25.
26. GIFTS OR CONSIDERATIONS
17
Nortel shall not offer to give or agree to give to any person any gift or
consideration of any kind as an inducement or reward for doing or forbearing to
do or for having done or forborne to do any act in relation to the obtaining or
execution of this or any other agreement with Viatel or for showing or
forbearing to show favour or disfavour to any person in relation to this or any
other Agreement with Viatel.
27. EXPORT AND RE-EXPORT
27.1
All Orders are subject to the granting of all appropriate Governmental export
and where applicable, import licences prior to any deliveries. In the event that
such licences are not granted within 6 (six) months of issuance of the Order
then the Agreement shall be declared null and void. In such event neither Party
shall have any claims against the other Party with respect to that Order.
27.2
Regardless of any disclosure made by Viatel to Nortel of the ultimate
destination of any System or any part thereof, Viatel undertakes not to export,
either directly or indirectly, any System in whole or in part, nor any system
incorporating any System in whole or in part without having first obtained
clearance or a licence to re-export from the USA and/or Canadian Governments as
required under their respective re-export regulations.
28. CONSTRUCTION OF AGREEMENT
If any term or condition of the Agreement is held to be invalid under any
applicable statute or rule of law, it shall be deemed to be omitted from these
terms and conditions to the extent of such invalidity but the remainder of the
Agreement provisions shall continue in full force.
29. SUBCONTRACTING
Should any sub-contractor required by Nortel to perform the Works or parts
thereof which were not identified to Viatel prior to signature of the Agreement,
Nortel will submit details of the proposed sub-contractors for Viatel's approval
prior to the sub-contractors commencing any work. Any notification by Nortel of
such sub-contract not relieve Nortel from any liability or obligation under the
Agreement.
30. NON-WAIVER
The failure of either Party to give notice to the other of any breach or
non-fulfilment of any provision, term or Clause of this Order shall not
constitute a waiver thereof, nor shall the waiver of any breach or
non-fulfilment of any provision, term or Clause hereof constitute a waiver of
any other provision, term or Clause hereof.
31. SURVIVAL OF CONDITIONS
The provisions of the following Clauses shall survive and shall continue in full
force and effect notwithstanding the expiration or earlier termination of the
Order:
Clause 17 relating to Warranty
Clause 19 relating to Right to Use Software
Clause 20 relating to Liability and Insurance
Clause 24 relating to Patents & Copyrights
Clause 25 relating to Confidential Information
Clause 27.2 relating to Re-export Controls
Clause 28.1 relating to Applicable Law
18
ANNEX B
NORTEL AFFILIATES
GERMANY
Nortel Dasa Network Systems GmbH &▇▇.▇▇
Public Carrier Networks
▇▇▇▇▇▇▇. ▇▇ - ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇, ▇▇▇▇▇▇▇
UNITED KINGDOM
Nortel plc.,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
NETHERLANDS
Northern Telecom BV
Siriusdreef 17-27
2132 WT Hoofddorp
FRANCE
Matra Nortel Communications SAS
33 quai ▇▇▇▇ ▇▇▇▇▇▇
Paris la Defense
92415 Courbevoie Cedex
BELGIUM
Northern Telecom NV
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
ANNEX C
PRODUCT DESCRIPTION AND PRICING
[REDACTED]
ANNEX D
SPECIFICATIONS
[REDACTED]
