WORLDCOM
WHOLESALE
MASTER SERVICES AGREEMENT
This WHOLESALE MASTER SERCVICES AGREEMTN
Between SWIFTNET LTD
(the "Customer") and WorldCom International Limited ("WorldCom") (together, the
"Parties"), in addition to the relevant Service Order(s) issued and accepted in
accordance with this Agreement, establishes the terms and conditions under which
terms and conditions the Parties hereby agree.
Parties
Customer: WorldCom:
Office Address: Office Address:
Xxxxxxxxx Xxxxx
000 Xxxx Xxxx 00 Xxxxx Xxxxx
Xxxxxx X00 0XX Xxxxxx
XX0X 0XX
Registered No: 2776038
Address for Notices: Address For Notices:
As above As above, for the attention of the
International Commercial Contracts
Manager
Terms and Conditions
1. Definitions
1.1 In this Agreement the following terms and phrases shall have the
following meanings: "Acceptance Date" shall mean the date on which the Customer
accepts or is deemed to accept the Service in accordance with Clause 3.
"Acceptance Tests" shall mean the tests to be carried out by WorldCom pursuant
to Clauses 3.1 and 3.4. "Act" shall mean the Telecommunications Xxx 0000.
"Agreement" shall mean this Wholesale Master Services Agreement together with
any Service Orders and annexes hereto. "Business Day" shall mean every day
excluding Saturdays, Sundays and national holidays in England. "Business Hours"
shall mean the hours between 0800 to 1830 every Business Day. "Charges" shall
mean the charges payable by the Customer to WorldCom for the Service as set out
in the relevant Service Order and revised from time to time in accordance with
Clause 4.3. "Confidential Information" shall mean all information (in whatever
format) designated as such by either Party together with all such other
information which relates to the business, affairs, customers, products,
developments, trade secrets, know-how and personnel of either Party and which
may reasonably be regarded as the confidential information of the disclosing
Party. "Customer Equipment" shall mean equipment, systems, cabling and
facilities provided by the Customer and used in conjunction with the Service
Equipment in order to obtain the Service. "Customer Site" shall mean a site
specified in a Service Order at which the Service is to be provided. "Emergency
Works" shall have the same meaning as is given to emergency works in the
Telecommunications Code. "Fault" shall mean a material defect, fault or
impairment in a Service which causes an interruption in the provision of that
Service. "Force Majeure Event" shall mean any cause beyond a Party's reasonable
control affecting the performance of its obligations hereunder including but not
limited to fire, flood, explosion, accident, war, strike, embargo, governmental
requirement, civil or military authority, Act of God, inability to secure
materials, industrial disputes and acts or omissions of other providers of
telecommunications services. "Network" shall mean the telecommunication
system(s) that WorldCom has the right to run under the Act. "Ready for Service
Notification" means a notification supplied in accordance with Clause 3.1 or 3.4
by WorldCom to the Customer on successful completion of the Acceptance Tests.
"Service" shall mean the specific switched telecommunications service supplied
by WorldCom to the Customer as described in the relevant Service Order. "Service
Equipment" shall mean the equipment, systems, cabling and facilities provided by
WorldCom at the Customer Site in order to make available the Service to the
Customer including Telecommunications Apparatus, Service Equipment shall not
include the Network or any equipment which is the subject of a separate supply
contract between WorldCom and the Customer. "Service Order" shall mean a request
for Service delivered by the Customer to WorldCom and accepted by WorldCom in
accordance with Clause 2.2. "Service Term" shall mean in relation to any
particular Service (unless otherwise stated in the relevant Service Order) one
year from the Acceptance Date. "Telecommunication Apparatus" shall have the same
meaning as is given to that expression in the Telecommunications Code.
"Telecommunications Code" shall mean the Code set out at Schedule 2 of the Act.
"WorldCom Affiliate" shall mean any company of which WorldCom is a Subsidiary
and any Subsidiary of such company and any Subsidiary of WorldCom, the term
"Subsidiary" having the meaning ascribed thereto in Sections 736 and 736A of the
Companies Xxx 0000.
1.2 Reference in this Agreement to any statute or statutory provision
include, unless the context otherwise requires, references to that statute or
provision as from time to tome amended, extended or re-enacted.
2. Service
2.1 The Customer may from time to time deliver to WorldCom Service Orders
on the terms of this Agreement. Any Service Orders shall be in the form
specified from time to time by WorldCom and notified to the Customer or such
other form as the Customer may deliver to WorldCom and WorldCom may in its
discretion accept.
2.2 Each Service Order shall be binding on both parties only after it is
accepted and signed by WorldCom, such acceptance to include the carrying out of
credit checks pursuant to Clause 4.8. In the event of any inconsistency between
a Service Order and this Agreement, the Service Order shall take precedence.
2.3 WorldCom reserves the right to use WorldCom Affiliates or
subcontractors to eprform some or all of its duties and/or obligations
hereunder.
2.4 Subject to the provisions of Clauses 2.5 and 2.6 the Customer may
resell the Services to third parties. 2.5 The Customer shall not in its dealings
with third parties: 2.5.1 except with WorldCom's prior written consent, refer to
WorldCom in any marketing or services literature; 2.5.2 purport to act on behalf
of or represent itself as acting on behalf of WorldCom. 2.5.3 Seek to resell the
Service to other WorldCom customers.
2.6 The Customer shall indemnify WorldCom and shall hold WorldCom harmless
against any claims or proceedings brought by third parties against WorldCom in
respect of the resale of the Services by the Customer to such third parties.
3. Acceptance Tests
3.1 Prior to the provision of the Service, WorldCom shall conduct such
Acceptance Tests as it considers to be appropriate and upon successful
completion of such Acceptance Tests shall deliver to the Customer a Ready for
Service Notification. 3.2 The Customer shall, within seven (7) days of delivery
to it of a Ready for Service Notification in accordance with Clauses 3.1 or 3.4,
notify WorldCom of any Fault.
3.3 In the event that the Customer fails to notify WorldCom of any Fault
with the Service in accordance with Claus 3.2 it shall be deemed to have
accepted the Service on the date of delivery to it of the Ready for Service
Notification. 3.4 In the event that the Customer notifies WorldCom of a Fault in
accordance with Clause 3.2, WorldCom shall use all reasonable endeavours to
rectify the Fault and upon such rectification shall conduct Acceptance Tests and
deliver to the Customer a further Ready for Service Notification in relation to
that Service in accordance with this Clause 3.
4. Payment
4.1 The Customer shall be liable for the Charges from the Acceptance Date
in accordance with this Clause 4. 4.2 WorldCom shall be entitled to increase the
Charges by written notice to the Customer.
4.2.1 at any time upon the expiry of a seven (7) day period following
delivery of such notice;
4.2.2. in accordance with Clauses 4.7 and 4.11.1.
4.3 Charges shall accrue from the date on which the Customer commences use
of the Service and may be invoiced monthly in arrears. 4.4 All invoices shall be
paid within one month of the date thereof.
4.5 All sums due to WorldCom are exclusive of value added tax and any other
applicable sales tax or duty which shall be invoiced and payable at the
prevailing rate. 4.6 Interest shall accrue on overdue invoices from the due date
until payment (whether before or after judgment) at the annual rate of two (2)
percent above the base lending rate from time to time of the Royal Bank of
Scotland Plc. Interest shall accrue notwithstanding termination of this
Agreement for whatever reason.
4.7 If there is a minimum spend commitment contained in a Service Order the
Customer agrees to meet such commitment in respect of each period of minimum
spend commitment except where and to the extent that failure to meet such
commitment is as a result of WorldCom's negligence or breach of this Agreement.
Failure to meet such minimum spend commitment shall, in addition to constituting
a material breach of this Agreement, entitle WorldCom to increase the Charges
for that Service with effect from the commencement of the relevant period to the
prevailing WorldCom standard wholesale rate.
4.8 WorldCom reserves the right to carry out a credit check against the
Customer prior to the acceptance by WorldCom of any Service Order in accordance
with Clause 2.2 and subsequent to the carrying out of such credit check may
request from the Customer a cash deposit or letter of credit in a form to be
approved by WorldCom and issued by a bank acceptable to lit in an amount not
exceeding the total Charges which WorldCom might reasonably expect the Customer
to incur during the Service Term.
4.9 In the event that the Charges incurred by the Customer and remaining
unpaid during any three (3) month period shall exceed the amount of any initial
deposit or letter of credit provided by the Customer to WorldCom in accordance
with this Claus 4. WorldCom may request an additional amount by way of cash
deposit or letter of credit, acceptable to WorldCom, such that the total amount
of any cash deposit or letter of credit shall not exceed the total Charges which
WorldCom might reasonably expect the Customer to incur during any twelve (12)
month period.
4.10 The Customer acknowledges that any failure by it to comply with any
request made by WorldCom under Clauses 4.8 or 4.9 shall constitute a material
breach of this Agreement. 4.11 In the event that the Customer fails to make
payment in accordance with Clause 4.4 of invoices delivered to it under Clause
4.3 WorldCom shall be entitled in addition to any remedy which it might have
under this Agreement or otherwise at law:
4.11.1 where applicable in respect of any Service forthwith to increase the
Charges to the prevailing WorldCom standard wholesale rate for such Service;
4.11.2 to set off any sums owing to it against any cash deposit or letter
of credit provided to WorldCom in accordance with this Clause 4;
4.11.3 to terminate this Agreement in accordance with Claus 11.5
5.Service Maintenance
Except in the case of Emergency Works, WorldCom shall give no less than seven(7)
days prior written notification to the Customer of all scheduled Service
maintenance , alterations or suspensions which shall affect the Customer.
Wherever possible WorldCom shall endeavour to perform these activities outside
Business Hours and in such a way as to minimise any interruption in the
provision of Services.
6.Fault Resolution
6.1 Worldom shall use all reasonable endeavours to correct any Fault of
which it is notified as possible.
6.2 For the purposes of this Clause 6, a Fault shall be deemed to have
commenced upon the notification of the Fault to WorldCom.
6.3 The Customer may terminate a Service by notice to WorldCom, such notice
to take effect upon the expiry of one Business Day, in the event of the
occurrence in relation to any Service provided thereunder. 6.3.1of a single
Fault affecting that Service for a continuous period of eight(8) hours;
6.3.2during any continuous twelve(12) month period, of Faults which, taken
cumulatively, affect that Service for a period exceeding twenty-four(24) hours.
6.4 For the purposes of this Clause 6, a Fault shall not be deemed to have
occurred where such Fault is caused by the act or omission of the Customer,
Force Majeure Events, Service suspensions for Emergency Works pursuant to Clause
8 or the failure or malfunction of Customer Equipment.
6.5 The Customer shall pay all reasonable costs incurred by WorldCom in
remedying any Fault which is attributable to: (i) the negligence, wilful act,
omission, breach, or fault of the Customer or its agents, or (ii) the failure or
malfunction of Customer Equipment.
7.Relocation
The Customer may request the provision of a Service at an additional or
substitute Customer Site by delivering to WorldCom an appropriate Service Order.
8.Service Suspension
8.1 WorldCom may, in its sole discretion and without prejudice to any right
it might have to terminate the Agreement, elect to suspend forthwith provision
of the Service until further notice in the event that (i) WorldCom is entitled
to terminate this Agreement; or (ii) WorldCom is obliged to comply with an
order, instruction or request of government, an emergency service organisation
or other competent administrative authority which affects its ability to provide
the Service, or (iii) WorldCom needs to carry out Emergency Works to the Network
or Service Equipment.
8.2 In the event that WorldCom exercises its right to suspend the Service
pursuant to Clause 8.1 it shall, whenever reasonably practicable, give prior
notice to the Customer, which notice shall state the grounds of such suspension
together with an estimate of the anticipated duration of such suspension.
WorldCom shall use all reasonable endeavours to resume provision of the Service
as soon as possible.
8.3 In the event that the Service, is suspended as a consequence of the
breach, fault, act or omission of the Customer, the Customer shall pay to
WorldCom all reasonable costs and expenses incurred by the implementation of
such suspension and/or recommencement of the provision of the Service and
WorldCom may recover any other losses suffered as a result of such breach,
fault, act or omission. 8.4WorldCom shall not be liable for any loss, damage or
inconvenience suffered by the Customer as a result of any suspension pursuant to
Clause 8.1 save where the circumstances set out in Clause 8.1 are solely
attributable to the negligence of WorldCom.
9.Warranties
9.1 In performing its obligations under this Agreement, WorldCom shall at
all times exercise the reasonable skill and care of a competent public
telecommunications operator.
9.2 There are no warranties, representations or agreements, expressed or
implied either by operation of law, statutory or otherwise, except those
expressly set forth herein and any such implied warranties are expressly
excluded.
10.Liability
10.1 Subject to Clause 10.4 and notwithstanding anything else in this
Agreement, each Party's liability to the other in contract, tort (including
negligence or breach of statutory duty) or otherwise under or arising in
connection with this Agreement shall be limited to:
10.1.1 (pound)1,000,000 (one million pounds) per event or series of
connected events; and 10.1.2 (pound)2,000,000 (two million pounds) in any twelve
month period.
10.2 Norwithstanding anything else in this Agreement, neither Party shall
in any event be liable to the other in contract, tort (including negligence or
breach or statutory duty) or otherwise for indirect or consequential losses
under or arising in connection with Agreement including, but not limited to,
harm, lost revenues, loss of anticipated savings or lost profits.
10.3 Should any limitation or provision contained in this Clause 10 be held
invalid under any applicable statute or rule of law it shall to that extent be
deemed omitted. 10.4Nothing in this Agreement shall serve to limit either
Party's liability in respect of death or personal injury caused by or arising
from that Party's negligence.
11. Term and Termination
11.1 This Agreement shall be in effect from the date first stated overleaf
or the date the first Service Order between the Parties is signed by WorldCom,
whichever is earlier, and shall continue unless terminated in accordance with
this Clause 11.
11.2 Either Party may terminate a Service by notice to the other such
notice to take effect:
11.2.1 on the expiry of a thirty (30) day period following delivery of such
notice once the relevant Service Term has expired;
11.2.2 forthwith if, in relation to that Service, the other Party has
committed a material breach which is incapable of remedy;
11.2.3 forthwith if, in relation to that Service, the other Party has
committed a material breach which is capable of remedy (other than as set out in
Cause 11.5) but which it fails to remedy within fifteen (15) days of having been
notified of such breach;
11.2.4 forthwith if, in relation to that Service, a Force Majeure Event
continues for a period exceeding three (3) months.
11.3 The Customer may terminate a Service upon the occurrence of Faults in
relation thereto as provided in Cause 6.3.
11.4 Either Party may terminate this Agreement by notice to the other
Party. Such notice to take effect forthwith:
11.4.1 in the event of a material breach relating to all Service by the
other which is incapable of remedy;
11.4.2 in the event of a material breach relating to all Services by the
other which as capable of remedy ( other than as set out in Clause 11.5) but
which it fails to remedy within fifteen (15) days of having been notified of
such breach;
11.4.3 in the event of a Force Majeure Event relating to all Service that
continues for a period exceeding three (3) months;
11.4.4 where no Service have been supplied under this Agreement for a
period exceeding three (3) months;
11.4.5 if the other has a receiver or an administrative receiver appointed
over it or over any part of its undertaking or assets or passes a resolution for
winding up (other than for the purpose of a bona fide scheme of solvent
amalgamation or reconstruction) or a Court of competent jurisdiction makes an
order to that effect or if the other Party becomes subject to an administration
order or enters into any voluntary arrangement with its creditors or ceases or
threatens to cease to xxxxx business.
11.5 WorldCom may terminate this Agreement on ten(10) days notice to the
Customer in event of a failure by the Customer to pay invoices falling due in
accordance with Clause 4.4.
11.6 Upon termination of this Agreement all services shall, without
prejudice to the parties accrued rights and obligations with respect thereto,
terminate forthwith.
11.7 Termination of this Agreement shall not relieve the Customer of its
obligation to pay any charges incurred hereunder or the continuance in force of
Clauses 4, 10, 11, 12, 19, 24 and 25.
12 Customer Obligations
12.1 The Customer shall grant or shall procure the grant to WorldCom of
such rights of access to each Customers Site and shall provide to WorldCom such
facilities and information as WorldCom may reasonable require to enable it to
perform its obligations under this Agreement.
12.2 The Customer shall notify WorldCom of any existing technical or other
facilities including, but not limited to, water and gas which could be damaged
during the installation of the Service Equipment and WorldCom shall have no
liability in respect of any damage or loss arising out of the Customer's failure
to comply with this Clause 12.2.
12.3 The Customer shall at its own expense comply with WorldCom's
reasonable instructions in relation to the modification of the Customer
Equipment to enable the Customer to receive the Service.
12.4 The Customer shall be liable for any and all damage to the Service
Equipment or the Network which is cause by (i) the act or omission of the
Customer or the Customer's breach of the terms of this Agreement; or (ii)
malfunction or failure of any equipment or facility provided by the Customer or
its agents, employees, or suppliers, including but not limited to, the Customer
Equipment.
12.5 The Customer shall identify, monitor, remove, and dispose of any
hazardous materials prior to any work being performed by WorldCom at a Customer
Site, and the Customer shall indemnify, defend, and hold WorldCom harmless from
any liability incurred in the use of or in connection with hazardous materials
at a Customer Site.
12.6 The Customer warrants that it holds such licences under the Act as are
required to run and connect the Customer Equipment to the Network and Service
Equipment and that (where relevant) it has in force in respect of the Customer
Equipment a maintenance contract with a maintainer designated under the Act and
shall comply with the Act. WorldCom reserves the right to disconnect any
Customer Equipment which is not approved under the Act or is liable to cause
death or personal injury or to cause damage to or to impair the Network.
WorldCom shall in no event be liable in respect of the Customer's failure to
comply with the provisions of this Clause 12.6
12.7 The Customers shall obtain and hereby grants to WorldCom all licences.
Waivers, consents, or registrations necessary to deliver, install, and keep
installed at the Customer Site the Service Equipment. WorldCom may in this
respect advise the Customer of requirements and the date by which they are
required to be fulfilled in a schedule of requirements.
12.8 The Customer warrants and undertakes:
12.8.1 that it shall house the Service Equipment in accordance with
WorldCom's reasonable instructions as may be given from time to time;
12.8.2 that it shall not move, modify ,relocate, or in anyway interfere
with the Service Equipment or Network;
12.8.3 that it shall not cause the Service Equipment to be repaired,
serviced,
or otherwise attended to except by an
authorised representative or WorldCom;
12.8.4 that it shall ensure and keep insured all Service Equipment
installed at each Customer Site against all risks;
12.8.5 that it shall not remove, tamper with, or obliterate any words or
labels on the Service Equipment;
12.8.6 that it shall not create or allow any charges, liens, pledges, or
other encumbrances whatsoever to be placed on the Service Equipment. Title to
the Service Equipment shall at all times belong and remain with WorldCom
Affiliate;
12.8.7 that it shall use the service Equipment only for the purpose of
receiving the Service from WorldCom and in accordance with such reasonable
written instructions as WorldCom may from time to time give;
12.8.8 that it shall permit WorldCom to inspect and/or test the Service
Equipment at all reasonable times; 12.8.9 that, upon termination of a Service
Order, it shall allow WorldCom access to each Customer Site to remove the
Service Equipment. Should any construction or alteration to the Customer Site
have occurred to facilitate provision of the service, WorldCom shall not be
obliged to restore the Customer Site to the same physical state as prior to
Service delivery.
12.9 The Customer shall advise WorldCom in writing of all health and safety
at work rules and regulations, of all dangerous objections and substances, and
any reasonable security requirements applicable at the Customer Site, and
WordCom shall use all reasonable efforts to observe and ensure that its
employees and authorised representatives observe such regulations so advised
while at the Customer Site , provided that WorldCom shall not be liable
hereunder if as a result of conforming with such regulations WordCom is in
breach of its obligations under this Agreement.
12.10 The customer warrants and undertakes that it shall not use the
Service for any illegal or unlawful purpose and shall indemnify WorldCom in
respect of any liability incurred as a result of a breach by the customer of
this Clause12.10
13. Severability
If any provision of this Agreement is held by a court or any governmental
agency or authority to be invalid, void, or unenforceable, the remainder of
this Agreement shall to the extent possible remain legal, valid, and
enforceable.
14. Variation
This Agreement shall be modified only by the written agreement of both
parties.
15. Force Majeure
Not withstanding herein to the contrary, neither Party shall be liable for
any delay or delay or failure in performance of any part of this
Agreement(other than the payment obligations set out in clause 4) to the
extent that such delay or a failure is attributable to a Force Majeure
Event. Any such delay or failure is attributable to a Force Majeure Event.
Any such delay or failure shall suspend this Agreement until the Force
Majeure Event ceases and the Service Team of any Service affected by such
Force Majeure Event shall be extended by the length of the suspension.
16. No Licence No licence with respect to the Service Equipment, express or
implied, is granted by WorldCom pursuant to this Agreement.
17.Counterparts This agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which shall constitute the same
instrument.
00.Xx Partnership Nothing in this Agreement and no action taken by the
Parties pursuant to this agreement shall constitute or be deemed to constitute
between the Parties a partnership, association, joint venture, or other
co-operative entity.
19. Confidentiality
19.1 Subject to Clause 19.2, each Party shall:
19.1.1 only us Confidential Information for the purposes of this Agreement;
and
19.1.2 only disclose Confidential information to a third party with the
prior written consent of the other Party; and 19.1.3 ensure that any third party
to whom Confidential Information is disclosed executes a confidentiality
undertaking in the terms of this Clause 19.
19.2 The provisions of Clause 19.1 shall not apply to any Confidential
Information which:
19.2.1 is in or comes into the public domain other than by breach of this
Clause 19;
19.2.2 is or has been independently generated by the recipient Party;
19.2.3 is properly disclosed pursuant to a statutory obligation, the order
of a court of competent jurisdiction or that of a competent regulatory body.
20. Assignment
Neither Party may assign this Agreement without the written consent of the
other Party (which consent shall not be unreasonably withheld or unduly
delayed), except that WorldCom may assign any and all of its rights and
obligations hereunder (I) to any WorldCom Affiliate, (ii) pursuant to any
sale or transfer of substantially all the assets of WorldCom, or (iii)
pursuant to any financing, merger, or reorganisation of WorldCom.
21. No Waiver
Failure by either Party to exercise or enforce any right conferred by this
Agreement shall not be deemed to be a waiver of any such right nor to
operate so as to bar the exercise or enforcement of any such or other right
on any later occasion.
22. Notices
Any notice required or authorised to be delivered by one Party to the other
under this Agreement shall be delivered by prepaid registered post or by
facsimile transmission (immediately confirmed by post) to the address
stated for that Party above and shall be deemed to have been served 48
hours after such posting or such transmission, except that the Customer may
give notice to WorldCom by telephone on the number stated above (or as
notified to the Customer from time to time) which notice shall be deemed to
be given upon the allocation by WorldCom to the Customer of a fault report
number.
23. Entire Agreement
This Agreement expresses the entire understanding of the Parties in
relation to the Service and replaces any and all former agreements,
understandings, solicitations, offers, and representations relating to the
Services.
23. Dispute Resolution
In the event of a dispute between the parties concerning this Agreement
each of the parties shall, in the first instance, bring the dispute at the
earliest opportunity to the attention of a Director or similar officer of
such Party.
24. Governing Law
This Agreement shall be governed by English Law and the Parties irrevocably
agree to the exclusive jurisdiction of the English courts.
IN WITNESS WHEREOF, the Parties, intending hereby to be legally bound, by
their authorised officers, have executed this Agreement on the date here
written.
Customer: Swiftnet Ltd WorldCom International Limited
/s/: /s/:
Name: A Keinan Name: Xxx Xxxxxxx
Title: MD Title: Manager
Date: 3.6.98 Date: 20.7.98