SERVICES AGREEMENT
This Agreement made effective the 18th day of September, 1998 (the "EFFECTIVE
DATE")
BETWEEN:
CRYS-TEL TELECOMMUNICATION INCof 0000 Xxxxxx Xxxxxx , Xxxx Xxxxxxxxx, XX X0X
0X0 (the "CUSTOMER")
AND:
STARCOM-ACCESSPOINT, a Division of Starcom Services Corporation, a British
Columbia company, of Suite 2770 - 000 Xxxx Xxxxxxxx Xx., Xxxxxxxxx, X.X. X0X
0X0 (the "SUPPLIER")
WHEREAS:
A. The Supplier provides and is licensed to provide communications services;
B. The Customer wishes to utilize certain of these services offered by the
Supplier;
C. The Supplier has agreed to provide certain facilities and services to the
Customer subject to and in accordance with the terms to this
Agreement;
NOW THEREFORE, the parties agree to be bound by the attached General Terms and
Conditions and the exhibits thereto which form part of this Agreement.
IN WITNESS WHEREOF, ___________ 1998. the parties hereto have executed this
Agreement this 18th day of September, 1998.
Customer: CRYS-TEL TELECOMMUNICATION INC
By: /s/ Xxxxxx Xxx
Authorized Signatory
Xxxxxx Xxx
Title: President
Supplier: STARCOM-ACCESSPOINT
By:
Title: President
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GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
In this Agreement and the Exhibits attached, the following words or phrases have
the meanings set out below:
"AGREEMENT" means, the Service Agreement and incorporates these General
Terms and Conditions and any exhibits attached;
"CUSTOMER PARTICULARS EXHIBIT" means, Exhibit 2 of this Agreement setting
out the particulars respecting Customer,
"CUSTOMER SITES" means, Customer "end-user" locations which are described
in the Customer Particulars Exhibit 2;
"CUSTOMER EQUIPMENT" means, Customer-owned equipment that provides the
interface to Supplier Equipment;
"EFFECTIVE DATE" means, the date of this Agreement as specified on page 1
of this Agreement;
"FEES" means, in respect of any Service or Services, the fees payable by
Customer to Supplier in respect of such Service or Services as described in each
Service Exhibit;
"MINIMUM PERFORMANCE OBJECTIVES" means, in respect of each Service or
Services, the minimum performance objectives set forth for such Service or
Services in the Service Exhibit which describes such Service or Services;
"PERFORMANCE OBJECTIVES" means, in respect of each Service or Services, the
performance objectives set forth for such Service or Services in the Service
Exhibit which describes such Service or Services;
"SERVICE EFFECTIVE DATE" has the meaning set forth in section 4, unless
otherwise specified in respect of a particular Service in a Service Exhibit;
"SERVICE EXHIBIT" means, Exhibit 1 setting out each of the Services to be
provided pursuant to the terms of this Agreement, including all such additional
Service Exhibits as may be added from time to time;
"SERVICE OR SERVICES" shall mean the Service or Services to be supplied to
Customer in accordance with the terms of this Agreement, all as described in the
Services Exhibit;
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"SUPPLIER EQUIPMENT" means, Supplier's equipment and hardware dedicated to
the supply of Services to Customer, including but not limited to that equipment
described in the Service Exhibit;
"SUPPLIER COMMUNICATION SYSTEM" means, Supplier Equipment and all Supplier
owned software and electronics used to provide Services to Customers;
"TERM" means a date specified by Supplier, as the date upon which the
services are to be available for use by the Customer and set out in the Customer
particulars Exhibit 2, unless otherwise specified in respect of a particular
Service in the Service Exhibit 1; and
"TERM" means, the term of this Agreement as set out in Exhibit 1.
2. SERVICES
2.1 Supplier agrees to supply the Services in accordance with and subject to
the terms of this Agreement. Customer agrees to receive such Services from
Supplier and agrees to comply with the terms and conditions contained in this
Agreement.
2.2 Throughout the Term of this Agreement, Customer may request in writing
that Services be made available at an additional Customer Site or may request
that additional access feeds be provided at an existing Customer site. To the
extent Supplier can reasonably accommodate such requests, it shall provide a
quote respecting the Fees applicable for such request and spec4' a Targeted
Start Date to Customer.
3. INSTALLATION
3.1 Supplier shall, if necessary, install and maintain cabling required to
provide Services to the legal boundary of property upon which the building
containing Customer Site is located. Customer shall be responsible for
obtaining all rights-of-way, permissions, and/or third party consents required
to permit Supplier to install and maintain cabling from such legal boundary to
the Customer Equipment and shall be responsible for all costs in connection with
the same. Further, Customer shall ensure it has all tights-of-way, permissions
or third party consents required in connection with installing and maintaining
such interior cabling.
3.2 Customer shall ensure that: (a) all work required to be done by it
pursuant to section 3.1 shall be done in accordance with all applicable laws
including, without limitation, all environmental regulations in accordance with
Supplier's specifications; and (b) all utilities, access and building
alterations required to install and service Supplier Equipment are provided 3
and/or completed at Customer's expense at least seven days prior to the Targeted
Start Date.
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4. Service Effective Date
4.1 Supplier shall exert all reasonable efforts to ensure that the Services
can be used by Customer on the Targeted Start Dates. Customer shall use all
reasonable efforts to complete its obligations set out in section 3 in a timely
manner in order that all Services are available on their respective applicable
Targeted Start Date. The "Service Effective Date" shall be that date which is
the latter of:
4 4.1.1 the Targeted Start Date; and
4.1.2 the date upon which the Services are activated and accepted for
use by Customer.
5. SERVICE PERFORMANCE
5.1 Each of the Services has been designed for the respective performance
targets, including target availability, set out in the relevant Service Exhibit.
These targets do not include maintenance windows reserved to allow installation,
system upgrades, and to add or reconfigure Customer's end-users and other
customers. The scheduled maintenance will be arranged based on customer
information to minimize the interference with the Customer's use of the Services
and shall not commence unless the customer has received at least thirty (30)
days prior written notice.
5.2 In supplying the Services, Supplier shall use all reasonable efforts to
achieve the Performance Objectives in respect of each Service. The Performance
Objectives apply only to that portion of Services provided on the Supplier
Communication System and do not apply to any Services utilizing or
interconnecting with facilities or services provided by other service carriers.
5.3 Subject to paragraph 12.2, Win any fill calendar month after the Service
Effective Date and during the term of this Agreement, the Supplier fails to
achieve the Performance Objectives for a Service, the Fees for such month (or
partial month) shall be reduced to the pro-rata portion that the actual
performance for that month complied with the Performance Objective for such
Service.
6. Maintenance Obligations
6.1 Subject to being provided the access rights set forth in section 3,
Supplier shall maintain Supplier Equipment including labor, parts, and such
other servicing as is necessary to keep Supplier Equipment in good operating
condition at its expense provided that Supplier shall not be responsible for any
repair or maintenance caused by:
6.1.1 such equipment being utilized other than for the purpose intended
under the terms of this Agreement or being operated other than in accordance
with Supplier's specifications;
6.1.2 catastrophes, accidents or the fault, negligence, misuse, improper or
unauthorized use of such equipment by Customer or others or by any other
cause(s) external to such equipment;
6.1.3 such equipment being moved from the locations authorized pursuant to
this Agreement without Customer first obtaining the written consent of Supplier;
and
6.1.4 customer making or using additions, alterations or adaptations to
such equipment without the prior written consent of the Supplier, such consent
not to be unreasonably withheld.
6.2 In complying with its maintenance and repair obligations hereunder,
Supplier shall provide such services under normal conditions 24 hours a day,
seven days a week. A staffed help line will be available for this purpose on a
24 hour, seven days week basis.
6.3 Supplier, its employees, contractors, and agents shall at all times
enjoy reasonable access to any cabling or facilities which Supplier is obligated
in any manner to maintain, including Supplier Equipment, and shall provide a
safe environment in which to perform any installation, repair, maintenance or
other work to be undertaken by Supplier in complying with its obligation under
this Agreement. Customer shall be responsible for ensuring timely access by
Supplier to each Customer Site. In the event that Supplier is unreasonably
delayed in any manner in obtaining reasonable access to Customer's premises, the
Customer agrees to reimburse Supplier at its' labor rates in effect from time to
time if such delay or prohibited access results in travel or waiting time for
Supplier's employees, contractors or agents.
7. FEES
7.1 Unless otherwise specified and subject to any bona fide billing
disputes, Customer agrees to pay all Fees in connection with provision of the
Services within 30 days of the invoice date and at the times specified in
Section 12 of this Service Agreement.
8. CUSTOMER OBLIGATIONS
8.1 Unless otherwise specified, Customer shall maintain all Customer
supplied equipment at its expense. Customer shall ensure that every item of
equipment utilized by Customer (if not Supplier owned) is technically and
operationally compatible with the Supplier Equipment and the Supplier
Communication System and complies with all governmental rules and regulations.
Supplier shall not be obligated to link any Supplier Equipment to any Customer
owned 5 equipment which does not comply with these requirements and which the
Supplier has not approved.
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8.2 Receipt and use of the Services is restricted to the business of the
Customer.
8.3 Customer, in utilizing the Services, shall be responsible for ensuring
that no such use materially adversely affects the operation of Supplier
Communications System.
9. LIMITED SOFTWARE LICENSE
9.1 All right, title and interest in and to any software programs forming
part of the Supplier Equipment or Supplier Communication System shall remain
that of Supplier or the licensing party authorizing use by Supplier. Customer
shall not change or copy such software programs (except for safeguard or archive
copies marked to show supplier's ownership) nor to make it available to any
employees, contractors, agents or third parties other than those who require
same in order to receive the Services.
10. Renewal of Term
10.1 The term of the contract shall as stated in Exhibit 1.
10.2 In the event that both parties agree in writing, this contract may be
renewed on an annual basis under the same or different conditions and prices.
11. LIMITATION OF LIABILITY
11.1 Where there are omissions, interruptions, delays, errors or defects in
transmission or failures or defects in Supplier's facilities, Supplier's
liability is limited to a refund of charges, on request, proportionate to the
length of time the problem existed, commencing from the time Supplier is advised
of the problem. Supplier's entire liability for any claim arising from any
cause whatsoever shall in no event exceed the monthly Fees for the Services
which give rise to any claim.
11.2 The remedies set out in this Agreement are in lieu of all other
warranties, representations, conditions, guarantees and remedies regarding the
Services and the maintenance thereof and there are no other warranties,
representations, conditions, guarantees or remedies of any kind whatsoever
either expressed or implied by law or customer, including but not limited to
those regarding merchantability, fitness for purpose, design, condition or
quality.
11.3 Without in any manner limiting the express limitation contained in this
section 11, Supplier shall not be liable to Customer or any of their servants,
agents, contractors, representatives or any third parties for:
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11.3.1 any act of omission of a telecommunications carrier whose facilities
are used in establishing connections to points which Supplier does not directly
serve;
11.3.2 defamation or copyright infringement arising from material
transmitted or received by Customer over Supplier's facilities;
11.3.3 infringement of patents arising from combining or using
Customer-provided facilities with Supplier's service; or
11.3.4 any damages, loss of profits, loss of earnings, loss of business
opportunities, real or personal property damage, personal injury or other loss
or special or consequential damages arising directly or indirectly out or in
connection with the subject matter of this Agreement, including, without
limitations those arising from the acknowledged delays or interruptions in
service described in section 6 above.
The forgoing limitation shall not apply to grossly negligent acts or omissions
of Supplier, resulting in physical injury, death or damage to the customers
premises.
11.4 In no event shall either party be liable to the other for consequential
or indirect losses or damages howsoever arising and whether under contract, tort
or otherwise (including without limitation third parry claims, loss of profits,
loss of customers, or damage to reputation or goodwill.
12. TERMINATION AND SUSPENSION OF SERVICE
12.1 Supplier may terminate, restrict or suspend the provisioning of the
Service to Customer:
12.1.1 forthwith if any Fees payable hereunder are not paid within 30 days
of the invoice date, with ten (10) days prior written; notice and
12.1.2 if 30 days after written notice has been received, Customer fails to
comply with any of its other obligations set forth in this Agreement. 12.1.3
customer may terminate the agreement with 30 days notice delivered to the
supplier in writing, on the last day of the proceeding month.
12.2 Customer may terminate the Agreement if 30 days after written notice
has been received, Supplier fails to comply with any of its obligations set
forth in this agreement. In addition, in the event that the Supplier fails to
provide a Service or Services to the level of the Minimum Performance Objective
applicable to such Service or Services over a period of a calendar month and
Customer provides prompt written notice of such performance failure to Supplier,
Supplier shall have ten days from receipt of such notification to rectify, the
problem. If at the end of such ten day period, the affected Services still fail
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to meet the applicable Minimum Performance Objectives, Customer may, elect in
writing to terminate Services to the affected Customer Sites. If Customer does
so, Supplier shall terminate Services between those points and no further Fees
shall be applicable in connection with the discontinued service and Supplier
shall be entitled to remove all Supplier Equipment located at Customer Site.
Minimum Performance Objectives shall not be construed as guarantees or
warranties in any sense and the only remedy for failure to meet Minimum
Performance Objectives shall be as provided for herein.
13. GENERAL
13.1 This Agreement shall enure to the benefit and be binding upon Supplier
and Customer, and their respective executors, administrators, successors and
permitted assigns. Neither party may assign this Agreement without the other
part's prior written consent, such consent not to be unreasonably withheld.
13.2 The Agreement forms the entire agreement between the parties concerning
the subject matter hereof and supersedes all prior written and oral agreements
between the parties. Any modification of this Agreement, other than the
modifications imposed by any government or regulatory authority, shall not be
valid unless reduced to writing and agreed to by all parties.
13.3 All rights and remedies hereunder are cumulative and not alternative,
Supplier shall be entitled to pursue all of its respective rights hereunder and
at law either consecutively or concurrently and no rights or interests shall be
extinguished or merged by the taking or judgment for all monies which are or may
become due owing pursuant to this Agreement or pursuant to any extension or
subsequent agreement made between Supplier and Customer.
13.4 Customer shall pay in addition to the Fees specified herein, all taxes,
assessments and government charges including but not limited to Social Service
Tax, Excise taxes, Goods and Services Tax and any other applicable tax now or
hereafter imposed on the purchase or consumption of the services under the
authority of a federal, provincial or municipal; taxing jurisdiction, except
taxes on the income or assets of Supplier.
13.5 Notwithstanding any other terms of this Agreement, neither party shall
be liable for any delay, interruption, or fault in the performance of its
obligations hereunder if caused by acts of God war, declared or undeclared,
fire, flood, storm, slide, earthquake, power failure, inability to obtain
equipment, supplies or other facilities not caused by failure to pay the then
prevailing prices, labor disputes, or any other similar event beyond the control
of the party affected which may prevent or delay such performance. If any such
act or event occurs or is likely to occur, the party affected shall promptly
notify the other party, giving particulars of the event. 13.6 Supplier reserves
the right not to carry out any work required herein which, in Supplier's
opinion; would be hazardous. Supplier will comply with all of Customer's safety
requirements where applicable.
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13.7 The parties hereto represent that they have lull authority to enter
into the Agreement and that no further act or approval is required to make this
Agreement binding upon the respective parties should any portion of this
Agreement for any reason be held to be void in law, this Agreement shall be
construed, so far as is possible, as if such portion had never been contained
herein.
13.8 Any notice, payment or other communication required or permitted to be
given or served pursuant to this Agreement shall be in writing and shall be
delivered personally or forwarded by first class prepaid mail to the Party
concerned at the address first set out above and such notice will be deemed to
be received on the day of delivery, if delivered personally, or five business
days after posting if mailed. Notices sent by telex, facsimile shall
conclusively deemed to have been received when the delivery confirmation is
received.
13.9 This Agreement shall be construed and the powers and provisions herein
contained shall be administered, exercised and given effect to according to the
laws of the Province of British Columbia.
13.10 The parties will not reveal, divulge or make known the terms and
conditions of this Agreement or any document or agreement now or hereafter
executed in connection herewith, other than disclosure that is required by law
or agreed to by the other party. In addition, for the period of two (2) years
from the date of disclosure thereof, each party shall maintain the
confidentiality of all information or data of any nature ("Information")
provided to it by the other party hereto provided such Information contains a
conspicuous marking identifying it as "Confidential" or "Proprietary". Each
party shall use the same efforts (but in no case less than reasonable efforts)
to protect the Information it receives hereunder as it accords to its own
Information. The above requirements shall not apply to Information which is
already in the possession of the receiving Party or any third Party, is already
publicly available through no breach of this Agreement, or has been previously
independently developed by the receiving Party. This Agreement shall not
prevent any disclosure of Information pursuant to applicable law and regulation,
provided that prior to making such disclosure, the receiving Party shall use
reasonable efforts to notify,' the disclosing Party of the required disclosure.
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Exhibit 1 Supplier Services
TERM OF CONTRACT: month to month
Network Performance Targets
Availability 99.97% Uptime
Minimum Availability 99.95% Uptime
SERVICE FEES
Internet Access
1 10Mb/s FDX Ethernet port $ 395 per month
1 10Mb/s FDX Ethernet Setup $ 495 one-time
TRAFFIC
OPTION 1
Traffic metered and charged at $12 per. Gigabyte
Option 2 no access charge
O to 4OGB $586
41 to 80GB $670
81 to 125GB $736
126 to 170GB $982
171 to 210GB $1,213
211 to 300GB $1,838
301 to 38OGB $2,357
381 to 425GB $2,430
426 to 490GB (1.5Mb/s) $2,826
491 to 980GB (FDX 3.OMb/s) $5,543
Notes:
- Implementation 5 days subject to in-building wiring
- prices do not include applicable taxes
- contribution for contribution eligible traffic, will be the responsibility
of Crys-Tel Telecommunications Inc. to report and remit
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Exhibit 2 Customer Particulars Exhibit
Contract Number: CTIOO1
Customer Name: CRYS-TEL TELECOMMUNICATLON INC.
Billing Address: 0000 Xxxxxx Xxxxxx , Xxxx Xxxxxxxxx, XX X0X 2115
Prime Technical Contact: Name: Xxxxxx Xxx Phone # 000-000 0000
Fax#: 000-000-0000
Email:xxxxxx@xxxxxx.xx
Billing Contact Name: Xxxxxx Xxxxxx Phone # 000-000-0000
Fax # 000-000-0000
Prime Trouble Contact Name:
Emergency 24 Hour Contact Name:
Site Locations: N/A
Targeted Start Date: The 1st day of October, 1998.
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Starcom
International Optics Corporation
October 19, 1998
Crys-Tel Telecommunications Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxxxx, XX X0X 0X0
ATTENTION: Xxxxxx Xxx
Dear Xx. Xxx,
Re: "Bringing Information to Light"
As Starcom's Customer Service Manager, I would like to take this opportunity,
and officially welcome Crys-Tel Telecommunications Inc. to our Fiber-One
Network.
Everyone at Starcom is dedicate4 to providing Crys-Tel Telecommunications Inc.
with exceptional service, timely installations, superior quality transmissions
and accurate invoicing.
If you have any comments as to how we may better meet your company's needs,
please do not hesitate to call me at 0-000-000-0000.
I look forward to a long a prosperous relationship for both companies.
Yours truly,
STARCOM SERVICE CORPORATION
PER:
/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Customer Service, Manager
ACCESSPOINT EXCALATION LIST
Should you or any of your Company's representatives require immediate
assistance, please use the following list.
CONTACT NAME TELEPHONE
--------- ----------------- ------ --------------
Primary Xxxx Xxxxxx Office (000) 000-0000
Data Network Mgr. Cell (000) 000-0000
Pager (000) 000-0000
--------- ----------------- ------ --------------
Secondary Xxxxxxx Xxxxx Office (000) 000-0000
Mgr. Information Cell (000) 000-0000
Systems
Pager (000) 000-0000
Home (000) 000-0000
--------- ----------------- ------ --------------
Third Xxxx Xxxx Office (000) 000-0000
Mgr. Network Cell (000) 000-0000
Operations
Pager (000) 000-0000
Home (000) 000-0000
--------- ----------------- ------ --------------
For Non time sensitive issues, please use the following email ID's:
Xxxx Xxxxxx xxxx@xxxxxxx.xxx
Russell Joyce xxxxxxx@xxxxxxx.xxx
Xxxxx Xxxxxxx (VP Operations) xxxxx@xxxxxxx.xxx
For network problems xxxxxxx@xxxxxxx.xxx
For routing additions/updates xxxxxxx@xxxxxxx.xxx
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