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EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT.
PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [ECONOMIC
TERMS OMITTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
NETWORK SERVICES AGREEMENT
Standard Terms and Conditions
This Agreement has been made on this 19 February 1999 by and between:
STAR TELECOMMUNICATIONS, INC., a company incorporated under the laws of
Delaware having its principal place of business located at ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("STAR");
And,
WORLDPORT COMMUNICATIONS INC., a company incorporated under the laws of
Delaware, U.S.A., having its principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A.
("WORLDPORT").
WHEREAS, WORLDPORT operates a telecommunications network with various
points of presence ("POPs") in Europe ("WORLDPORT Network"); and
WHEREAS, WORLDPORT wishes to provide dedicated, fixed, point-to-point,
digital transmission capacity over the WORLDPORT Network to STAR; and
WHEREAS, STAR is a telecommunications service provider/operator wishing
to obtain from WORLDPORT such transmission capacity;
NOW THEREFORE, WORLDPORT and STAR agree as follows:
1. DEFINITIONS
In this Agreement the following terms shall (unless the context
otherwise requires) have the following meanings:
"AGREEMENT" means this Agreement and the Addendum and annexes attached
hereto. In the event of conflict between the provisions of any annex and the
standard terms and conditions of this Agreement, the terms and conditions of the
Addendum shall prevail.
"COMMERCIAL OPERATIONS DATE" means the date that the Service Period
commences being the date of successful completion of the acceptance testing.
"CONFIDENTIAL INFORMATION" means all know-how, techniques, ideas,
principles and concepts which underlie any of the Services and business or
commercial information and all other information in whatever form obtained by
either Party directly or indirectly from the other Party pursuant to this
Agreement or prior to and in contemplation of it.
"WORLDPORT EQUIPMENT" means any telecommunications equipment which is
supplied by WORLDPORT for the provision of the Services to STAR.
"FORCE MAJEURE" means in relation to either Party an event or set of
circumstances which is beyond its reasonable control including but not limited
to: any default or delay in the performance of the respective obligations of the
Parties under this Agreement caused by fire,
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strike, riot, insurrection or civil disorder, war, national or local emergency,
act or omission of God, government or other competent authority.
"GROUP COMPANY" means, in relation to either Party, any holding company
or subsidiary or any subsidiary of such holding company.
"RING" means the telecommunications network (SDH resilient ring)
deployed or to be deployed by WORLDPORT on a defined route and including major
cities in Europe as listed under Annex 1. This list may be amended from time to
time by WORLDPORT to reflect changes in WORLDPORT Network roll out. Such
amendment will be notified to STAR in writing.
"SERVICE PERIOD" means a twenty (20) year period as measured from the
Commercial Operations Date.
"SERVICES" means the telecommunications services provided by WORLDPORT
to STAR (comprising the provision of managed bandwidth and maintenance services)
as specified in the Annexes to this Agreement.
"SERVICE CONSIDERATION" means the payment of the charges by STAR to
WORLDPORT as set forth in Annex I and the relevant Service Order Forms attached
under Annex II in return for the provision by WORLDPORT of the Services.
"SERVICE DELIVERY DATE" means the date agreed between the Parties for
the delivery of the Services as specified on the relevant Service Order Form.
"SERVICE LEVEL AGREEMENT" means the quality standards of the Services
as defined under Annex III.
"TERM" is the period of validity of this Agreement as set forth in
Section 3.
"UNDERLYING STAR CONSENTS" means any and all permissions, consents,
approvals, easements, wayleaves, and permits in legally acceptable form as are
necessary to enable STAR and its employees, agents, or sub-contractors to
operate the telecommunications systems of STAR and to enable STAR to use the
Services to be provided under this Agreement.
"UNDERLYING NETWORK CONSENTS" means any and all permissions, consents,
approvals, easements, wayleaves, rights, authorizations, supplier agreements or
any other underlying requirement as are necessary to enable WORLDPORT and its
employees, agents or sub-contractors to construct, operate and maintain the
WORLDPORT Network and provide the Services herein described.
2. SCOPE OF AGREEMENT
In return for the Service Consideration provided by STAR, WORLDPORT
shall provide the Services as specified in this Agreement.
WORLDPORT shall be free to contract for the Services from such
telecommunications operators as it may consider necessary in order to provide
the Services on the basis that WORLDPORT will continue to achieve the service
levels detailed in Annex III.
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3. TERM OF AGREEMENT
[SEE ADDENDUM]
4. STAR'S OBLIGATIONS
(a) STAR shall provide the Service Consideration to
WORLDPORT in accordance with this Agreement and the relevant Service Order Forms
attached under Annex II.
(b) STAR shall provide WORLDPORT, its employees, agents
and subcontractors with access to STAR's premises (including access to
third-party controlled premises) to the extent reasonably necessary for
WORLDPORT to provide the Services hereunder.
(c) STAR shall provide WORLDPORT and its employees,
agents and subcontractors at no charge, with such equipment as may be mutually
agreed, and space, suitable environment and operational conditions as is
reasonably required for WORLDPORT to provide the Services hereunder.
(d) STAR shall not take any action that could contribute
to the degradation of the WORLDPORT Equipment or WORLDPORT Network.
(e) STAR shall comply with any applicable law,
regulation, order, decision or other government or judicial act relating to the
Services to be provided and used hereunder.
5. WORLDPORT'S OBLIGATIONS
(a) WORLDPORT will use its best endeavors to provide the
Services on the Service Delivery Dates as set forth in the relevant Service
Order Form.
(b) In performing any obligation under this Agreement,
WORLDPORT's duty is to exercise the reasonable skill and care of a competent
telecommunications network operator. The quality of the Services provided shall
be consistent with industry standards, government regulations, sound business
practices and Annex III.
(c) Except as expressly provided in this Agreement, all
warranties, conditions, or other terms implied by statute or common law are
excluded to the fullest extent permitted by law.
6. ORDERING AND COMMISSIONING OF SERVICES
The procedures, terms and conditions for ordering and commissioning the
Services are specified in Annex IV.
7. OPERATIONS AND MAINTENANCE
The procedures, terms and conditions for the provision by WORLDPORT of
Operations and Maintenance support are specified in Annex III, the Service Level
Agreement.
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8. EQUIPMENT
(a) Title to the WORLDPORT Equipment shall not pass to
STAR and STAR shall not remove, tamper with or obliterate any identification
▇▇▇▇(s) affixed to such equipment or to any part thereof.
(b) WORLDPORT reserves the right at any time to make any
modification, change, addition to or replacement of any part of the WORLDPORT
Equipment where it is required to conform with any applicable safety or other
statutory requirements or where such modification, change, addition or
replacement does not detract from, reduce or impair the overall quality or
performance of the Services. In the performance of its rights hereunder,
WORLDPORT shall bear all costs and shall use best efforts to cause as little
disruption to STAR's use of the Services as possible.
9. SERVICE CONSIDERATION
(a) The charges payable by STAR for the provision of the
Services are set out in Annex I to this Agreement. Furthermore, WORLDPORT will
ensure that if STAR orders additional Services under this Agreement, (other than
those contemplated herein) the charges offered to STAR for those additional
Services will remain highly competitive in the marketplace and will not, in any
event, be higher than comparable prices offered hereunder as of the Effective
Date.
(b) The timely payment of all sums due to WORLDPORT under
this Agreement shall be the essence of this Agreement. Any overdue amount shall
accrue interest, to the extent permitted by applicable law, at a fixed interest
rate of two percent (2%) per annum above the National Westminster Bank plc base
rate, then in force on the day following the day payment of the invoice was due,
until payment in full is received.
(c) All charges payable under this Agreement shall be
calculated in accordance with this Agreement and made in the currency specified
in Annex I and in the relevant Service Order Form and are expressed exclusive of
VAT or any other similar sales tax, and shall be charged in accordance with the
relevant regulations in force in the home of the supplier and shall be paid by
STAR.
(d) In the event that STAR disputes an invoice and the
amount disputed is greater than five per cent (5%) of the value of the relevant
invoice (excluding taxes), then STAR shall issue WORLDPORT a notice in writing
within ten (10) days of the receipt of the relevant invoice specifying the
nature of the dispute. The Parties shall then use their best endeavors to
resolve the dispute according to the dispute resolution procedures set forth in
Section 30 hereunder.
10. LIMITATION OF LIABILITY
(a) This clause 10 sets out each Party's entire liability
in respect of any obligation, duty, or liability whatsoever to the other Party
(including liability, if any, or the acts or omissions of its employees, agents
or subcontractors) in connection with this Agreement (including the attached
Service Level Agreement) whether in contract, tort, or otherwise, including
(without limitation) any liability for negligence howsoever arising.
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(b) Notwithstanding Section (d) below, nothing in this
Agreement shall exclude or restrict either Party's liability for death or
personal injury resulting from negligence by it or by its employees while acting
in the course of their employment.
(c) NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER
IN RESPECT OF THIS AGREEMENT IN CONTRACT, TORT OR OTHERWISE INCLUDING (WITHOUT
LIMITATION) ANY LIABILITY FOR NEGLIGENCE HOWSOEVER ARISING: (I) FOR ANY LOSS OR
REVENUE, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS OR PROFITS; OR (II) ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS.
(d) The Parties' entire liability to each other whether
in contract, tort or otherwise including (without limitation) any liability for
negligence howsoever arising in connection with this Agreement shall be limited
to the value associated with the affected circuit(s) in the aggregate in respect
of any one or more incidents in any year (a year being twelve months from the
date of this Agreement and from each anniversary thereof).
(e) The provisions of this Section shall survive the
expiry or termination of this Agreement.
11. CONFIDENTIALITY
Each Party shall at all times use their best endeavors to keep
confidential (and to ensure that its employees and agents shall keep
confidential): (a) the terms of this Agreement; and, (b) shall not use or
disclose (save in the performance of its obligations under this Agreement) any
Confidential Information which it may acquire in relation to the business or
affairs of the other Party, for the whole duration of this Agreement and for two
(2) years following its termination or expiry, save for any information:
(a) Which is publicly available or becomes publicly
available through no act of the first receiving Party; or
(b) Which was in the possession of the receiving Party
free of restriction prior to its disclosure; or
(c) Which is disclosed to that Party by a third party who
did not acquire that information under an obligation of confidentiality; or
(d) Which has been independently developed by the
receiving Party prior to this Agreement; or
Which is disclosed under operation of law or for financing purposes,
except that the receiving Party shall disclose only such Information as is
legally required and shall provide to the disclosing Party prompt written notice
of each such requirement, to the extent practicable, so that the disclosing
Party may seek an appropriate protective order.
12. INTELLECTUAL PROPERTY
Nothing in this Agreement shall be deemed to confer on either Party any
rights or licenses in respect of any intellectual property of the other.
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13. FORCE MAJEURE
(a) If either Party is affected by Force Majeure, it
shall promptly notify the other Party of the nature and extent of the
circumstances in question.
(b) Notwithstanding any provision of this Agreement,
neither Party shall be deemed to be in breach of this Agreement, or otherwise be
liable to the other (except for the payment of charges due or provision of other
consideration due), for any delay in performance or other non-performance of any
of its obligations under the Agreement to the extent that such delay or
non-performance is due to Force Majeure of which it has notified the other
Party, and the time for performance of that obligation shall be extended
accordingly. Without prejudice to subsection 13(c) below, the Party prevented
from performance shall use reasonable efforts under the circumstances to avoid
or remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes are removed, alleviated or cease.
(c) If an event of Force Majeure lasts for more than
thirty (30) consecutive days which prevents either Party from fulfilling any of
its obligations under this Agreement, either Party shall be entitled to
terminate this Agreement by giving not less than fourteen (14) days written
notice to the other immediately upon the expiry of the 30-day period, provided
that such notice will be of no effect if the party prevented from fulfilling its
obligations notifies the other in writing before the expiry of the 14-day notice
period that it is no longer affected by Force Majeure.
14. SUSPENSION OF SERVICES
(a) WORLDPORT may, at its sole discretion, suspend the
provision of the Services until further notice (i) if WORLDPORT has a right to
terminate this Agreement pursuant to Section 15; or (ii) if WORLDPORT needs to
carry out Emergency Works on the WORLDPORT Network (see Annex III); or (iii) if
WORLDPORT is required to comply with a government, administrative or judicial
order, decision or other such requirement that would prevent WORLDPORT from
providing the Services.
(b) In the event that WORLDPORT exercises its right to
suspend the Services it shall provide advance notice to STAR where it is
reasonably practicable to do so, or as soon as reasonably practicable following
suspension.
(c) WORLDPORT shall not be liable for any loss, damage or
inconvenience suffered by STAR as a result of any suspension made pursuant to
Section 14 (a) except for service credits due as specified in Annex III.
15. TERMINATION OF AGREEMENT
(a) Either Party shall be entitled to terminate this
Agreement upon prior written notice if the Party against whom termination is
sought:
(b) commits a material breach of any provision of this
Agreement (save for any breach which is caused by the Party seeking to rely on
it) and, in the case of a breach which is capable of remedy, fails to remedy the
same within thirty (30) days after receipt of written notice giving full
particulars of the breach and requiring the breach to be remedied;
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(c) fails to pay any sum due under this Agreement within
thirty (30) days of its due date as in 9(c).
(d) an administrative order is made or an effective
resolution is passed for the dissolution or discontinuation or termination of
the other party except for the purposes of a consolidation, merger or
restructuring and said order or resolution is not vacated or dismissed within
fourteen (14) days;
(e) an encumbrance takes possession or a receiver is
appointed over the whole or a substantial part of the undertaking or assets of
the other party;
(f) the other party becomes insolvent or makes any
special arrangements or any special assignment for the benefit of its creditors,
or is the subject of a voluntary or involuntary filing under the insolvency or
bankruptcy laws of any jurisdiction
(g) makes a proposal for a voluntary arrangement within
Part I of the UK Insolvency ▇▇▇ ▇▇▇▇ or other similar statutory arrangement; or
(h) ceases, or threatens to cease, to carry on business.
(i) Upon the termination of this Agreement for any
reason, subject as otherwise provided in this Agreement and to any rights and/or
obligations which have accrued prior to termination, neither Party shall have
any further obligation to the other under this Agreement, except as to those
obligations of a continuing nature.
16. NOTICES
All notices given under this Agreement must be in writing and may be
sent by facsimile with a copy by post to the following contacts:
STAR: Star Telecommunications, Inc.
▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Director of Contracts
(▇▇▇) ▇▇▇-▇▇▇▇
WORLDPORT: WORLDPORT COMMUNICATIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Director of Contracts
▇▇▇ ▇▇▇-▇▇▇▇ (fax)
Any Party may change contact information by giving the other Party
prior written notice.
17. ASSIGNMENT
(a) This Agreement is personal to WORLDPORT and STAR and
it shall not be assigned, delegated, transferred or otherwise disposed of
without the prior written consent of the other Party, such consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, WORLDPORT shall
have the right to use subcontractors to perform some of the duties and/or
obligations hereunder, subject to Section 2(b).
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(b) For the avoidance of doubt, either Party may assign
the benefit of this Agreement to any Group Company (for so long as they remain a
Group Company) and nothing shall prevent STAR from using the Services on a
commercial basis.
18. NO PARTNERSHIP
Nothing in this Agreement shall create, or be deemed to have created, a
partnership between the Parties.
19. NO WAIVER
Any waiver by either Party of a breach of any provision of this
Agreement shall not be considered as a waiver of any subsequent breach of the
same or any other provision.
20. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties with
respect to its subject matter, and supersedes all previous agreements and
understandings between the Parties, and may not be modified except by an
instrument in writing signed by the duly authorized representatives of the
Parties.
21. NO WARRANTY
Each Party acknowledges that, in entering into this Agreement, it does
not do so on the basis of or rely on any representation, warranty or other
provision except as expressly provided in this Agreement, and accordingly, all
conditions, warranties or other terms implied by statute or common law are
hereby excluded to the fullest extent permitted by law.
22. SEVERABILITY
If any provision of this Agreement is held by any court or other
competent authority to be void or unenforceable in whole or part, the other
provisions shall continue to be valid, unless either Party decides in its
absolute discretion to treat this Agreement as terminated.
23. STATUTORY INTERPRETATION
References to statutory provisions shall, except when the context
requires otherwise, be construed as references to those provisions as
respectively amended or re-enacted or as their application is modified by other
provisions (whether before or after the date hereof) from time to time.
24. HEADING
Headings are inserted for convenience only and shall not affect the
construction of the Agreement.
25. PUBLICITY
Neither party shall issue a public notice or news release concerning
this Agreement and the transactions contemplated hereby without the prior
approval of the other, which approval shall not be unreasonably withheld or
delayed.
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26. SURVIVAL
Any Section or subpart of this Agreement of a continuing nature shall
survive the termination of this Agreement including but not limited to Sections
11, 12, 13, 29 (b).
27. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of California.
28. EXECUTION AND COUNTERPARTS
This Agreement may be executed in two or more counterparts, all of
which taken together shall constitute one instrument.
30. DISPUTE RESOLUTION AND ARBITRATION
In the event there is a controversy or claim between the Parties
arising out of or relating to this Agreement, the disputing Party shall give the
other Party written notice of the dispute. The Parties shall make best endeavors
to resolve the controversy promptly through discussions between themselves at
the operational level. If the Parties fail to resolve such controversy or claim
within fifteen (15) days of the disputing Party's notice, either Party may seek
arbitration as set forth below.
Any controversy or claim arising out of or relating to this contract,
or the breach thereof, which cannot be resolved through the internal dispute
resolution process, shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules, and judgement on
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The arbitration will be held at a mutually agreeable
location and, in the event the parties cannot agree on a location for the
arbitration, the location will be determined in accordance with the American
Arbitration Association's Commercial Arbitration Rules. Nothing herein limits a
party's right to seek and obtain, from a court of competent jurisdiction, a
preliminary injunction or such other preliminary judicial relief to avoid
irreparable damage or harm, however, should a party take such action, both
parties will continue to participate in good faith in the procedures specified
in clause 30 (a).
As WITNESS the hands of the Parties (or their duly authorized
representatives) the day and year first about written:
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
STAR TELECOMMUNICATIONS, WORLDPORT COMMUNICATIONS, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ BY: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ------------------------------------
NAME: ▇▇▇▇▇ KOLSRU NAME: ▇▇▇ ▇▇▇▇▇▇▇
------------------------------ ------------------------------------
TITLE: EVP - OPS/ENG TITLE: EXECUTIVE VICE PRESIDENT
------------------------------ ------------------------------------
DATE: 2/19/99 DATE: 2/19/99
------------------------------ ------------------------------------
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PAYMENT TERMS AND SERVICE VARIATION ANNEX I
PRICING STRUCTURE
STAR may purchase STM-1 circuits from Point-to-Point on the WORLDPORT
Network as follows:
City Pairs Price Delivery London -
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[ECONOMIC TERMS OMITTED]
Local access circuits are included from cable landing to WORLDPORT's
POP at Telehouse facility (Docklands) in London.
O&M charges for the [ECONOMIC TERMS OMITTED] circuits set forth above
shall be $[ECONOMIC TERMS OMITTED] for the Service Period for all [ECONOMIC
TERMS OMITTED] circuits, inclusive, and shall be due and payable within three
working days after signing of the Agreement.
Installation charges are waived for these [ECONOMIC TERMS OMITTED]
circuits.
* STAR commits to order, take delivery and remit payment for these circuits by
the first anniversary of the commencement date of this Agreement.
For escrow terms, see addendum
"INFORMATION ON THIS PAGE SUBJECT TO CONFIDENTIAL TREATMENT REQUEST."
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MANAGED BANDWIDTH SERVICE ORDER FORM ANNEX II
STAR DETAILS
Address
City
Postal code
Country
SERVICE CONFIGURATION
Service Quantity 1 X STM-1 Bit rate 155Mbits/s
SERVICE DELIVERY DETAILS
Service is provided between Network Termination Points (NTPs), which are the
points of connection to the WORLDPORT Network, normally located at WORLDPORT
Point of Presence (POP).
NTP, "A" end To be determined
NTP, "B" end to be determined
Service Commencement Date Before To be determined
TARIFF AND PAYMENT DETAILS
Contract term 20 years
Billing term 10% upon execution of this Service Order Form
(non-refundable), 90% on the Commercial Operations Date
Billing currency U.S. Dollars
Charge $[ECONOMIC TERMS OMITTED]
STAR SIGNATURE: DATE:
---------------------------------
WORLDPORT SIGNATURE: /S/ ▇▇▇ ▇▇▇▇▇▇▇ DATE: 2/19/99
--------------------------------
WORLDPORT CONTACT DETAILS
Commercial contact ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address WORLDPORT Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Telephone (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Facsimile (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Email
STAR CONTACT DETAILS
-------------------------
"INFORMATION ON THIS PAGE SUBJECT TO CONFIDENTIAL TREATMENT REQUEST."
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ANNEX III
SERVICE LEVEL AGREEMENT
The purpose of this Service Level Agreement ("SLA") is to establish the
procedures for installation and acceptance of the Services as well as for
preventative and corrective maintenance.
Definitions
"EMERGENCY OUTAGE" means an outage that is not planned or for which the
Parties do not have prior advanced notice and which requires the suspension of
or disruption to the Services in order to restore the Services.
"WORLDPORT HELP DESK" means the Help Desk operated twenty-four (24)
hours a day every day during the Service Period by WORLDPORT.
"FAULT CLEARANCE PROCEDURES" means the procedures for operation and
maintenance of the Services (as specified hereunder) provided by WORLDPORT in
co-operation with STAR in order to correct Service Affecting and Non-Service
Affecting Faults ("Fault Repair").
"NETWORK CONTROL CENTRE" means the service centre operated by WORLDPORT
in order to control, maintain and configure the WORLDPORT Network.
"NON SERVICE AFFECTING FAULT" means any failure, interruption or
disruption of the SDH Network, which does not affect normal traffic transmission
over such network.
"PLANNED OUTAGE" means suspension of or disruption to the Services, the
occurrence of which has been agreed in advance by the Parties or of which the
Parties have prior advance notice.
"SERVICE AFFECTING FAULT" means any failure, interruption or disruption
of the SDH Network, which materially affects normal traffic transmission over
such network.
"SERVICE AVAILABILITY" means the period of time in which the Services
are available for use by STAR in comparison to the period of time in which the
Services are not so available.
"SERVICE CREDITS" means such credit serving as compensation to STAR in
the event that the targeted service availability levels (as specified hereunder)
are not met by WORLDPORT.
Installation and Acceptance Procedures
Prior to the provision of the Services, WORLDPORT and STAR shall agree
upon an installation plan specifying the required responsibilities, procedures,
acceptance criteria and timetables.
Following completion of acceptance testing, WORLDPORT will supply STAR
with the test results. Thereafter, STAR will have 5 days in order to conduct its
own acceptance testing.
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Unless STAR notifies WORLDPORT that the Services do not comply with
specifications, the expiry of the 5-day period marks the date of acceptance by
STAR of the test results, which, in turn, marks the Commercial Operations Date.
Service Availability and Performance Levels
WORLDPORT will use best endeavors to provide the Services at a service
availability level of at least 99.95%.
Service Credits
Without prejudice to Section 8 and Section 9 of this Service Level
Agreement, WORLDPORT shall provide STAR with Service Credits (as specified
below) in the event that the stipulated availability level is not met where such
does not result from the failure of STAR to comply with the terms and conditions
of this Agreement or from any Service Variations as defined under Annex I to the
Agreement.
(a) PoP to PoP
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Service Level Guarantee (%) Credits Calculation if service
level is not met
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Availability (monthly) 99.95 - 99.5 20% of monthly equivalent rate of
purchase price plus
O&M charge
Below 99.5 - 99.0
40% of monthly equivalent rate of
purchase price plus
Below 99.0 - 97.5 O&M charge
Below 97.5 60% of monthly equivalent rate of
purchase price plus
O&M charge
100% of monthly equivalent rate
of purchase price plus
O&M charge
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A. (b). Availability Measurements
Availability is calculated on a monthly basis as follows:
(Total time - Sum of all events of unavailable time as agreed during
fault clearance) * 100
Total time.
Performance Reports
Performance reports will be provided to STAR on a monthly basis. These
will include a log of any faults, reported by STAR, or detected at the Network
Control Centre, giving details of the progress and timing of any fault clearance
activity.
Fault Reporting
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STAR shall report faults by contacting by telephone the WORLDPORT Help
Desk at the telephone numbers set forth below ("Fault Reports").
Upon receipt of the Fault Report, WORLDPORT will allocate a job ticket
number and a priority level to the fault.
The Parties shall reference the job ticket number in all communications
that relate to the Fault Report.
The Priority Level will characterize the fault as either a Service
Affecting or Non-Service Affecting Fault which will determine the Fault
Clearance Procedures to be taken.
Non-Service Affecting Fault Clearance Procedures
If a Non-Service Affecting Fault is detected by the Network Control
Centre the Services will be automatically switched to an alternative route.
WORLDPORT will only notify STAR of Non-Service Affecting Faults in the
monthly reporting procedure.
Service Affecting Fault Clearance Procedures
WORLDPORT shall use best endeavors to clear Service-Affecting Faults
within 4 hours of receiving Fault Report from STAR or detection of the Fault by
the Network Control Centre.
In the event of a Service-Affecting Fault, WORLDPORT shall keep STAR
informed of fault clearance activity and shall promptly notify STAR when the
fault(s) has/have been cleared.
If Service-Affecting Faults are not cleared within 4 hours, fault
clearance activities will be escalated through the WORLDPORT management
structure to the Director of Networks.
Planned Outage
From time-to-time there will be a need to undertake planned work on the
WORLDPORT Network, in order to perform preventive maintenance, or to increase
network capacity and/or coverage. Planned outages will be carried out in
maintenance windows which will be notified to STAR 28 days in advance. If such
planned work is of a nature that is likely to be Service-Affecting, WORLDPORT
shall provide STAR with as much advanced notice as is reasonable under the
circumstance, with such notice normally being not less than 28 days prior to the
commencement of the planned works. In such an event, STAR shall provide
WORLDPORT all necessary assistance and co-operation in order to complete the
planned works efficiently. For the avoidance of doubt, no Service Credits or
claim to damages may be made by STAR for Planned Outages except where there is a
loss of Services.
EMERGENCY OUTAGE
In the event of an Emergency Outage, WORLDPORT shall provide STAR with
such notice (as may be deemed reasonable under the circumstances), indicating
the nature of the
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outage and its expected duration. In return, STAR shall provide WORLDPORT with
such assistance and co-operation as may be necessary for the restoration of the
Services. For the avoidance of doubt, no Service Credits or claim to damages may
be made by STAR for loss of Services due to Emergency Outages that result from a
Force Majeure event. In all cases, however, when WorldPort receives a credit
from its underlying capacity supplier, WorldPort will, as a minimum, pass any
such credit on to STAR on a proportional basis.
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ANNEX IV
SERVICE ORDER PROCEDURE
Placing an Order
STAR shall place a service order by using the WORLDPORT Service Order
Form designed for the managed bandwidth services.
WORLDPORT will acknowledge receipt of the service order within one
working day.
On receipt of the service order, WORLDPORT will verify the service
requested, determine whether the requested service delivery date is feasible
taking into account, among others, the status of the required POPs on the
relevant RING(s), and confirm or review the date with STAR within one week
CONFIRMING AN ORDER
Upon completion of verification procedures by WORLDPORT, the Parties
shall then sign the Service Order Form. In order for the service order to remain
valid, the Parties shall sign it within one month of agreement of the service
delivery date or at the date at which the relevant PoPs are "live" and available
whichever is the earliest.
If the Service Order details (including Start date) cannot be verified
within one week of order receipt, then WORLDPORT will keep STAR informed of
progress on a weekly basis during verification.
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ADDENDUM TO NETWORK SERVICES AGREEMENT
This Addendum to Network Services Agreement is attached to and
incorporated in that certain Network Services Agreement dated February _19__,
1999 (this "Agreement"), by and between STAR TELECOMMUNICATIONS, INC., a
Delaware corporation ("STAR"), and WORLDPORT COMMUNICATIONS, INC. ("WORLDPORT"),
a Delaware corporation.
1. GRANT OF IRU IN WORLDPORT NETWORK
1.1 IRU Grant. Worldport hereby grants to STAR indefeasible rights
of use ("IRU") in the STM-1s supplied by Worldport between the following City
pairs in Europe ("Capacity"):
[ECONOMIC TERMS OMITTED]
Notwithstanding any other provisions of this Agreement, STAR shall have the
right to assign some or all of its rights and obligations under this Agreement,
including, without limitation, any or all rights and obligations relating to any
STM-1 comprising the Capacity, to one or more of its Affiliates. The term
"Affiliate" means any person (i) which directly or indirectly controls or is
controlled by, or is under common control with, a party hereto, or (ii) 10% of
which is held beneficially or of record by a party hereto or one of its
subsidiaries. In the event of any said assignment by STAR to any of its
Affiliates, where applicable, references in this Agreement to STAR shall mean
and refer to said Affiliates.
1.2 Capacity Requirements. All Capacity shall include all required
circuits (POP-to-POP as defined in Exhibit B) and shall be provided by network
facilities inclusive of all circuits and the use of all electronics and other
equipment necessary for the intended operation of the Capacity.
1.3 Interconnection. All Capacity shall be delivered to STAR at
the optical and/or electrical connection between Worldport and STAR at the
European DSX standard cross-connect panels ("POIs") in the physical locations
listed on Exhibit A where Worldport terminates lines before connecting to other
carriers and customers ("POPs"). All Capacity terminating in London shall
terminate at Worldport's POP located at Telehouse, [insert address]. All
Capacity terminating in other cities shall terminate at Worldport's POPs located
at the facilities to be designated by Worldport, subject to the prior written
approval of STAR and Worldport's compliance with the provisions of Section 7.3
of this Addendum.
1.4 Upgrades. If, Worldport upgrades all or any part of the
Capacity, Worldport shall notify STAR in writing of the planned upgrade (the
"Upgrade Notification Date"). Upon notification of the upgrade, STAR shall have
the option (the "Technology Option") to increase the Capacity affected by any
upgrade by delivery to Worldport of written notice of STAR's exercise of the
Technology Option. The Technology Option shall be exercised on a date (the
"Upgrade Exercise Date") on or before ninety (90) days from the Upgrade
Notification Date. In
"INFORMATION ON THIS PAGE SUBJECT TO CONFIDENTIAL TREATMENT REQUEST"
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the event STAR wishes to exercise the Technology Option in connection with such
Worldport upgrade, the Capacity increase acquired pursuant to the Technology
Option shall be proportional to STAR's share of the same fibers on which the
Capacity is provided. Payment by STAR to Worldport for its proportional share of
the increased Capacity acquired pursuant to exercise of the Technology Option
shall be made at the later of: (1) the receipt of the Worldport invoice, or (2)
thirty (30) days after the Acceptance Date. STAR and its representatives shall
have the right to audit the books, records and documentation regarding the
upgrade of the Capacity and the costs thereof.
1.5 Representations, Warranties and Conditions to Purchase.
Worldport represents and warrants the following: (i) Worldport is party to one
or more agreements pursuant to which Worldport shall supply the Capacity
("Master Agreements"); (ii) the Capacity will be available to Worldport under
the Master Agreements for at least ten (10) years from the date hereof, and
(iii) the Capacity will be supplied as part of a resilient SDH loop or
SONET-based ring.
1.6 Additional Capacity. STAR shall have the right, but not the
obligation, to purchase additional Capacity on the Worldport Network at
preferential prices and in no case greater than the prices for like Capacity
offered by Worldport to similarly situated customers and furnished under this
agreement and upon such other terms and conditions as may be mutually agreed
upon by the parties.
2. CONSIDERATION FOR GRANT OF IRU
2.1 Price. The purchase price ("Purchase Price") for the Capacity
is as follows:
[ECONOMIC TERMS OMITTED] The escrow agreement shall also
provide for release of the escrow
To WorldPort in the event of
default
In addition, STAR shall pay to Worldport a one time operations and maintenance
fee in the amount of $[ECONOMIC TERMS OMITTED] ("O&M Fee") to be added to and
included in the Purchase Price for the Capacity.
2.2 Payment. The Purchase Price for the Capacity shall be payable
as provided in this Section.
(1) Concurrently with the execution and delivery of this
Agreement, STAR shall pay into an escrow account 10%
of the Purchase Price plus the O&M Fee ("Initial
Payment").
(2) Within ten (10) days of the Acceptance Date for each
STM-1 comprising the Capacity, STAR shall pay to
Worldport the balance of the Purchase Price for said
STM-1.
These monies shall be deposited in escrow with a bank or other escrow
holder suitable to WorldPort. Escrow funds to be released to WorldPort
when the service is available. If one leg is available, then the funds
to be released shall be the downpayment for that leg ($[ECONOMIC TERMS
OMITTED]) plus the full $[ECONOMIC TERMS OMITTED] O&M payment.
"INFORMATION ON THIS PAGE SUBJECT TO CONFIDENTIAL TREATMENT REQUEST."
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2.3 Cancellation of STM-1. The Initial Payment shall be
non-refundable, except in the event of a material default by Worldport, and in
the event that STAR cancels the delivery of any STM-1 prior to the Target Date
as described in Section 1.1 of this Addendum, Worldport shall have the right to
retain the portion of the Initial Payment applicable to the cancelled STM-1 and
STAR's obligation to pay to Worldport the balance of the Purchase Price with
respect to the cancelled STM-1 shall terminate.
3. TESTING OF CAPACITY
3.1 Availability Dates. Worldport shall use its best efforts to
make (or cause to have made) the Capacity available to STAR on the dates
specified below (the "Availability Dates"):
[ECONOMIC TERMS OMITTED]
3.2 Target Dates. STAR shall deliver to Worldport at least thirty
(30) days prior written notice of the required delivery dates ("Target Dates")
for the STM-1s comprising the Capacity, provided that the Target Dates specified
in said written notices shall be within one (1) year from the date of this
Agreement. Worldport shall use its best efforts to deliver the Capacity to STAR
on or before the Target Dates specified in said written notices.
3.3 Testing. At delivery the Capacity shall comply with the
specifications set forth in Exhibit B attached hereto. Worldport shall test the
Capacity in accordance with the procedures specified in Exhibit B to verify that
the Capacity is operating in accordance with the applicable specifications
described in Exhibit B. Worldport shall provide STAR with reasonable advance
notice of the date and time (but no less than seven (7) calendar days prior
written notice) of each Capacity acceptance test (each of which shall take place
during normal business hours) such that STAR shall have the right, but not the
obligation, to have a person or persons present to observe the tests.
3.4 Parameters. In the event the results of any Capacity
acceptance test show that the Capacity is not operating within the parameters of
the applicable requirements and specifications set forth in Exhibit B, Worldport
shall expeditiously take such action as shall be reasonably necessary, with
respect to such portion of the Capacity as does not operate within the
parameters of the applicable requirements and specifications, to bring the
operating standards of such portion of the Capacity within such parameters.
3.5 Acceptance Date. If and when Worldport notifies STAR that the
test results of the Capacity acceptance test are within the parameters of the
requirements and specifications set forth in Exhibit B with respect to the
tested Capacity, STAR shall provide Worldport with a written notice accepting
such Capacity. The date of such notice of acceptance of the Capacity shall be
the "Acceptance Date" for that Capacity.
"INFORMATION ON THIS PAGE SUBJECT TO CONFIDENTIAL TREATMENT REQUEST"
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4. TERM
4.1 Commencement. The term of this Agreement (the "Term") shall
begin on the date of this Agreement (provided that the grant of the IRU
hereunder with respect to any STM-1 comprising the Capacity shall not become
effective until the Acceptance Date for that STM-1); and shall continue until
the earlier of:
(1) twenty (20) years from the last Acceptance Date of
the last STM-1 (provided that the grant of IRU
hereunder with respect to any STM-1 shall not be
longer than twenty (20) years from the Acceptance
Date for that STM-1); or
(2) the date on which STAR notifies Worldport in writing
that the STM-1 has, in STAR's discretion, reached the
end of its economically useful life and that STAR
desires to not retain the IRU in such STM-1.
5. NETWORK ACCESS AND CAPACITY CONFIGURATION
5.1 Access. Worldport will provide STAR with reasonable access to
the Capacity at the designated POPs.
5.2 Reconfiguration. In the event that STAR desires to reconfigure
the location or quantity of Capacity, STAR shall notify Worldport of its desired
reconfiguration. Subject to availability, Worldport will implement the
reconfiguration of the Capacity as requested by STAR. STAR shall reimburse
Worldport for the reasonable costs of said reconfiguration.
6. MAINTENANCE AND RESTORATION OF CAPACITY
6.1 Worldport, at its sole expense, will provide or cause to be
provided maintenance for the Capacity using its standard maintenance procedures,
which procedures shall be consistent with the highest telecommunications
industry standards, or the maintenance standards under the Master Agreements,
whichever is higher. Worldport shall, at all times, protect and restore the
Capacity. Notwithstanding any other provision of this Agreement, all operating
and maintenance charges for the Capacity are included in the Purchase Price
specified in Section 2 of this Addendum, and in no event shall STAR have any
obligation to pay any additional costs, expenses, charges, fees or other amounts
with respect to the maintenance or operation of the Capacity, including, without
limitation, any costs, expenses, charges, fees or other amounts payable under
the Master Agreements.
7. ACCESS TO WORLDPORT POPS
7.1 Interconnection. STAR and its designees (such as local
telecommunications providers) shall have access, according to standards
reasonable in the telecommunications industry, to the Worldport POPs at the
Worldport termination points on the Worldport Network, and shall have the right
to interconnect with the Capacity according to telecommunications industry
standards and procedures which may be established from time to time.
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7.2 Bundling. If STAR establishes additional POPs near the
Worldport Network, Worldport, at Worldport's expense, will endeavor to implement
the most technically sound means of interconnection at STAR's request.
7.3 Location of POPS. Each of the Worldport designated POPs for
the Capacity shall be located as described on Exhibit A hereto.
8. REPRESENTATIONS AND WARRANTIES
8.1 Worldport Representations and Warranties. Worldport
represents, warrants and covenants to STAR as follows: (i) Worldport is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and Worldport and/or its affiliates are duly qualified
or licensed to do business as a foreign corporation and in good standing in all
jurisdictions in which the licensing or qualification is required for the
ownership and operation of the Worldport Network, the conduct of the IPL
business by Worldport, the performance of this Agreement, including the grant to
STAR of the IRUs in the Capacity pursuant to this Agreement, and as is required
under the Master Agreements; (ii) Worldport has all necessary corporate power
and authority to own its properties and assets and to carry on its business as
now conducted; (iii) the execution, delivery and performance of this Agreement
by Worldport has been duly authorized by all necessary corporate action on the
part of Worldport; (iv) this Agreement constitutes the legally valid and binding
obligations of Worldport enforceable against Worldport in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors rights generally; (v) the execution, delivery
and performance of this Agreement by Worldport and the consummation of the
transactions contemplated hereby will not (a) violate, or constitute a breach or
default (whether upon lapse of time and/or the occurrence of any act or event or
otherwise) under, the certificate of incorporation or bylaws of Worldport or any
agreement, contract, instrument, mortgage, lien or other document binding upon
Worldport, including, without limitation, the Master Agreements, or its assets
or properties, or (b) result in the imposition of any lien or encumbrance
against any of the assets or properties of Worldport, or (c) violate any statute
or other law, rule or regulation of any governmental authority or any order,
decree or judgment of any court, tribunal or governmental authority binding on
Worldport or its assets or properties; (vi) Worldport has obtained, is
maintaining and shall at all times maintain in effect and in good standing all
approvals, consents, authorizations, licenses and permits from all governmental
authorities and third parties, including, without limitation, the underlying
owners of the Capacity under the Master Agreements ("Owners"), and all
applicable statutes, rules, regulations, laws and governmental orders in
connection with the execution, delivery and performance of this Agreement by
Worldport; (vii) the audited financial statements of Worldport for the fiscal
years ended December 31, 1996 and 1997, together with the reports of the
independent certified public accountant with respect thereto, and the unaudited
financial statements for the fiscal year ended December 31, 1998 that have been
certified by the Chief Financial Officer of Worldport, fairly present the
financial condition as of the end of said fiscal years and the results of the
operations of Worldport for the periods then ended; (viii) since December 31,
1998, there has been no change in or event affecting Worldport or its business,
assets or properties that has had or may
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reasonably be expected to have a material adverse effect on Worldport's ability
to perform this Agreement or the Master Agreements or any aspect of the
transactions contemplated by this Agreement or the Master Agreements; (ix)
Worldport is solvent; and (x) there is no decree, injunction, judgment, order,
ruling, assessment or writ, action, complaint, petition, investigation, suit or
other proceeding, whether civil or criminal, in law or in equity, issued by or
pending before any arbitrator or governmental authority, or, to the best
knowledge of Worldport, threatened, against or affecting Worldport or its
properties or assets that individually or when aggregated with one or more other
such matters might reasonably be expected to have a material adverse effect
Worldport's ability to perform this Agreement or the Master Agreements or any
aspect of the transactions contemplated by this Agreement or the Master
Agreements.
8.2 STAR's Representations and Warranties. STAR represents,
warrants and covenants to Worldport as follows: (i) STAR is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and STAR or its Affiliates, as applicable, shall be duly organized or
qualified or licensed to do business as foreign corporations and in good
standing in all jurisdictions in which organization or qualification or
licensing is required for the purchase of Capacity by STAR or its Affiliates, as
applicable, pursuant to this Agreement; (ii) the execution, delivery and
performance of this Agreement by STAR has been duly authorized by all necessary
corporate action on the part of STAR; (iii) this Agreement constitutes the
legally valid and binding obligations of STAR enforceable against STAR in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws and
equitable principles relating to or limiting creditors rights generally; (iv)
the execution, delivery and performance of this Agreement by STAR and the
consummation of the transactions contemplated hereby will not (a) violate, or
constitute a breach or default (whether upon lapse of time and/or the occurrence
of any act or event or otherwise) under, the certificate of incorporation or
bylaws of STAR or any agreement, contract, instrument, mortgage, lien or other
document binding upon STAR or its assets or properties, or (b) result in the
imposition of any lien or encumbrance against any of the assets or properties of
STAR, or (c) violate any statute or other law, rule or regulation of any
governmental authority or any order, decree or judgment of any court, tribunal
or governmental authority binding on STAR or its assets or properties; and (v)
STAR or its Affiliates have obtained, are maintaining and shall at all times
maintain in effect and in good standing all approvals, consents, authorizations,
licenses and permits from all governmental authorities and third parties and all
applicable statutes, rules, regulations, laws and governmental orders in
connection with the execution, delivery and performance of this Agreement by
STAR or its Affiliates.
9. MASTER AGREEMENTS
9.1 Representations and Warranties. Worldport represents and
warrants to STAR as follows: (i) there are no defaults, or events, acts or
omissions that with notice, the passage of time or both would constitute
defaults under the Master Agreements; and (ii) Worldport and the Owners have
performed all of their respective material obligations under the Master
Agreements.
9.2 Compliance by Worldport. Worldport shall perform and comply
with all of the duties and obligations of Worldport under the Master Agreements.
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9.3 Compliance by Owner. Worldport shall use due diligence in
attempting to cause the Owners under the Master Agreements to perform all of the
Owners' duties and obligations thereunder in accordance with the provisions
thereof. In the event any Owner defaults or fails or refuses to perform any such
duties or obligations, then, upon the request of STAR, Worldport shall use its
commercially reasonable best efforts to replace capacity and/or assign to STAR
all of its claims, causes of action or remedies with respect thereto, whether at
law or in equity or under the applicable Master Agreement. Any such assignment,
and acceptance thereof by STAR, shall not constitute a waiver of, or otherwise
affect, any rights or remedies of STAR at law or in equity or under this
Agreement. In the event that STAR does not request an assignment of any claims,
causes of action or remedies related to such default, failure or refusal,
Worldport shall pursue such remedies as are available to Worldport under the
applicable Master Agreement or at law or in equity to cause the defaulting Owner
to perform all of its duties and obligations under the applicable Master
Agreement.
9.4 Notices of Default. Worldport shall deliver to STAR prompt
written notice in the event of a default or breach by Worldport or any Owner
under the Master Agreements, and Worldport shall deliver to STAR copies of all
notices of default received or delivered by Worldport with respect to the Master
Agreements promptly upon the receipt or delivery thereof.
9.5 Estoppel; Nondisturbance. Within 30 days of the execution and
delivery of this Agreement, Worldport shall deliver to STAR the following
documents:
(1) Certificates. Certificates, in form approved by STAR,
duly executed by each of the Owners with respect to
each Master Agreement, (1) certifying to STAR that
(A) the Master Agreement consists only of those
agreements identified in Section 9.1 (iv) of this
Addendum, (B) the Master Agreement is in full force
and effect without any existing default thereunder by
Worldport known to Owner, and (C) there are no acts,
events or omissions known to Owner which, with the
giving of notice, passage of time, or both, could
constitute a default by Worldport thereunder, and (2)
stating the expiration date of the term of the Master
Agreement with respect to the Initial Capacity.
(2) Recognition and Nondisturbance Agreements.
Recognition and Nondisturbance Agreements, in form
approved by STAR, duly executed by each of the Owners
and Worldport with respect to each Master Agreement,
and providing that (1) the Owner consents to the
supplying of the Capacity by STAR pursuant to this
Agreement, (2) the Owner shall deliver to STAR any
notice of default or notice of termination which the
Owner delivers to Worldport under the terms of the
Master Agreement, (3) the Owner shall not accept a
termination or cancellation of the Master Agreement,
or an abandonment or voluntary surrender by Worldport
of the Capacity acquired by Worldport under the
Master Agreement, without the prior written consent
of STAR, (4) upon the termination of this Agreement
prior to the expiration of the term of the Master
Agreement,
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the Owner shall not disturb the rights of STAR with
respect to the Capacity acquired by STAR under this
Agreement and shall recognize STAR as a direct
purchaser and grantee of Owner under the terms of
this Agreement so long as STAR performs the
obligations of STAR under this Agreement, (5) if the
Master Agreement is terminated for any reason not
related to a default by STAR under this Agreement or
through an involuntary act pertaining to Worldport,
that the Owner shall enter into a new agreement with
STAR for the Capacity acquired by STAR under this
Agreement on the same terms and conditions as are
contained in this Agreement for the remaining term of
this Agreement.
10. INDEMNIFICATION
10.1 Release by Worldport. Subject to the provisions of Section 11
of this Addendum, Worldport hereby releases and agrees to indemnify, defend,
protect and hold harmless STAR and its Affiliates and their respective
employees, officers, directors, agents, shareholders and Affiliates, from and
against, and assumes liability for:
(1) Any injury, loss or damage to any person, tangible
property or facilities of any person or entity
(including reasonable attorneys' fees and costs) to
the extent arising out of or resulting from the acts
or omissions, negligent or otherwise, of Worldport,
its officers, employees, servants, affiliates,
agents, contractors, licensees, invitees or vendors
arising out of or in connection with a default by
Worldport in the performance of its obligations under
this Agreement;
(2) Any claims, liabilities or damages arising out of any
violation by Worldport of any regulation, rule,
statute or court order of any local, state or federal
governmental agency, court or body in connection with
the performance of its obligations under this
Agreement; and
(3) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of
any third party as a result of STAR's or its
Affiliates' use of the IRU and the Capacity in
accordance with the provisions of this Agreement.
10.2 Release by STAR. Subject to the provisions of Section 11 of
this Addendum, STAR hereby releases and agrees to indemnify, defend, protect and
hold harmless Worldport, its employees, officers, directors, agents,
shareholders and Affiliates, from and against, and assumes liability for:
(1) Any injury, loss or damage to any person, tangible
property or facilities of any person or entity
(including reasonable attorneys' fees and costs) to
the extent arising out of or resulting from the acts
or omissions, negligent or otherwise, of STAR or its
Affiliates or their respective officers, employees,
servants, affiliates, agents, contractors, licensees,
invitees or
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vendors arising out of or in connection with a
default by STAR or its Affiliates in the performance
of STAR's obligations under this Agreement;
(2) Any claims, liabilities or damages arising out of any
violation by STAR or its Affiliates of any
regulation, rule, statute or court order of any
local, state or federal governmental agency, court or
body in connection with its use of the IRU and/or the
Capacity under this Agreement; and
(3) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of
any third party as a result of STAR's or its
Affiliates' use of the IRU and/or the Capacity not in
accordance with the provisions of this Agreement.
10.3 Arbitration. The parties hereby expressly recognize and agree
that each party's said obligation to indemnify, defend, protect and save the
other harmless is not a material obligation to the continuing performance of the
parties' other obligations, if any, hereunder. In the event that a party shall
fail for any reason to so indemnify, defend, protect and save the other
harmless, the injured party hereby expressly recognizes that its sole remedy in
such event shall be the right to bring an arbitration proceeding pursuant to the
terms of this Agreement against the other party for its damages as a result of
the other party's said failure to indemnify, defend, protect and save harmless.
These obligations shall survive the expiration or termination of this Agreement.
10.4 Third Parties. Nothing contained herein shall operate as a
limitation on the right of either party hereto to bring an action for damages
against any third party, including indirect, special or consequential damages,
based on any acts or omissions of such third party as such acts or omissions may
affect the construction, operation or use of the Capacity or the Worldport
Network; provided, however, that each party hereto shall assign such rights or
claims, execute such documents and do whatever else may be reasonably necessary
to enable the other party to pursue any such action against such third party.
11. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
11.1 Standards. Worldport represents, warrants and covenants that
the Capacity shall operate in accordance with the standards established by
Worldport for the Worldport Network generally, including, without limitation,
those technical specifications set forth at Exhibit C (hereinafter the
"Technical Standards"). If Worldport determines that the Capacity is not being
provided in accordance with the Technical Standards or STAR gives Worldport
notice of the nonconformance of the Capacity with the Technical Standards,
Worldport, at Worldport's expense, shall use commercially reasonable efforts
under the circumstances to conform the Capacity to the Technical Standards.
11.2 Limitations.
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(1) Except as expressly set forth elsewhere in this
Agreement, in no event shall Worldport or any of its
Affiliates be liable to STAR or any of its Affiliates
or employees or to any third party for any loss of
profit or revenue, or for any indirect,
consequential, incidental, or similar or additional
damages, whether incurred or suffered as a result of
unavailability of facilities or Capacity,
performance, non-performance, termination, breach, or
other action or inaction under this Agreement, or for
any other reason, even if STAR advises Worldport of
the possibility of such loss or damage.
(2) Except as expressly set forth elsewhere in this
Agreement, in no event shall STAR or any of its
Affiliates be liable to Worldport or any of its
Affiliates or employees or to any third party for any
loss of profit or revenue, or for any indirect,
consequential, incidental, or similar or additional
damages, whether incurred or suffered as a result of
performance, non-performance, termination, breach, or
other action or inaction under this Agreement, or for
any other reason, even if Worldport advises STAR of
the possibility of such loss or damage.
12. INSURANCE
During the term of this Agreement, each party shall obtain and
maintain, at its expense, an appropriate insurance policy with terms and
coverage thresholds equal to or greater than the industry standard for major
global telecommunications carriers for protection against all risks associated
with the Capacity as reasonably deemed necessary by each party acting
reasonably.
13. LIMITATIONS ON IRU GRANT
Although the IRU permits non-cancellable use thereof, the IRU granted
in this Agreement does not provide STAR with any ownership or other possessory
interests in any real property, conduit, fiber, or equipment in or on the
Worldport Network or along the route of the Worldport Network.
14. TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
Notwithstanding any other provision of this Agreement, each party shall
be independently responsible for any and all taxes, fees, levies, imposts,
duties, charges or withholdings of any nature (including, without limitation,
gross receipts taxes and franchise, license and permit fees), together with any
penalties, fines or interest thereon arising out of the transactions
contemplated by this Agreement and/or imposed by any federal, state or local
government or other public taxing authority to the extent properly payable with
respect to the Capacity. Further, the parties agree that they will cooperate
with each other and coordinate their mutual efforts concerning audits, or other
such inquiries, filings, reports, etc., as may relate solely to the activities
or transactions arising from or under this Agreement, which may be required or
initiated from or by any duly authorized governmental tax authority.
10
27
15. NOTICE
15.1 Addresses. Unless otherwise provided herein, all notices and
communications concerning this Agreement shall be addressed to the other party
as follows:
If to Worldport: Worldport Communications, Inc.
ATTENTION: Executive Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Worldport Communications, Inc.
ATTENTION: Director of Contracts
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to STAR: STAR Telecommunications, Inc.
Attention: Executive Vice-President of
Network Services (▇▇▇▇▇ ▇▇▇▇▇▇▇)
▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Seed, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as either party may designated from time to time in
writing to the other party.
15.2 Delivery. Unless otherwise provided herein, notices shall be
hand delivered, sent by registered or certified U.S. mail, postage prepaid, or
by commercial overnight delivery service, or transmitted by facsimile, and shall
be deemed served or delivered to the addressee or its office when received at
the address for notice specified above when hand delivered, upon confirmation of
sending when sent by fax, on the day after being sent when sent by overnight
delivery service, or three (3) days after deposit in the mail when sent by U.S.
mail.
16. CONFIDENTIALITY
16.1 Information. Worldport and STAR hereby agree that if either
party provides confidential or proprietary information to the other party
("Proprietary Information"),
11
28
such Proprietary Information shall be held in confidence, and the receiving
party shall afford such Proprietary Information the same care and protection as
it affords generally to its own confidential and proprietary information (which
in any case shall be not less than reasonable care) in order to avoid disclosure
to or unauthorized use by any third party. This Agreement, including all of the
terms, conditions and provisions hereof, constitutes Proprietary Information,
and all information disclosed by either party to the other in connection with or
pursuant to this Agreement shall be deemed to be Proprietary Information,
provided that written information is clearly marked in a conspicuous place as
confidential or proprietary, and verbal information is indicated as being
confidential or proprietary when given or promptly confirmed in writing as such
thereafter. All Proprietary Information, unless otherwise specified in writing,
shall remain the property of the disclosing party, shall be used by the
receiving party only for the intended purpose, and such written Proprietary
Information, including all copies thereof, shall be returned to the disclosing
party or destroyed after the receiving party's need for it has expired or upon
the request of the disclosing party. Proprietary Information shall not be
reproduced except to the extent necessary to accomplish the purposes and intent
of this Agreement, or as otherwise may be permitted in writing by the disclosing
party.
16.2 Exceptions. The foregoing provisions of Section 16.1 of this
Addendum shall not apply to any Proprietary Information which (i) becomes
publicly available other than through the recipient; (ii) is required to be
disclosed by a governmental or judicial law, order, rule or regulation; (iii) is
independently developed by the disclosing party; or (iv) becomes available to
the disclosing party without restriction from a third party. If any Proprietary
Information is required to be disclosed pursuant to the foregoing clause (ii),
the party required to make such disclosure shall promptly inform the other party
of the requirements of such disclosure.
16.3 Disclosure. Notwithstanding Sections 16.1 and 16.2 of this
Addendum, either party may disclose Proprietary Information to its employees,
agents, and legal, financial, and accounting advisors and providers (including
its lenders and other financiers) to the extent necessary or appropriate in
connection with the negotiation and/or performance of this Agreement or its
obtaining of financing, provided that each such party is notified of the
confidential and proprietary nature of such Proprietary Information and is
subject to or agrees to be bound by similar restrictions on its use and
disclosure.
16.4 Survival. The provisions of this Section 16 shall survive
expiration or termination of this Agreement.
17. DEFAULT
17.1 Notice. A party shall be in default under this Agreement
thirty (30) days after the non-defaulting party shall have given written notice
of such default unless the defaulting party shall have cured such default or
such default is otherwise waived by the non-defaulting party within such thirty
(30) days; provided, however, that where any such default other than the payment
of money cannot reasonably be cured within such 30-day period, if the defaulting
party shall proceed promptly to cure the same and prosecute such cure with due
diligence, the time for curing such default shall be extended for such period of
time not to exceed ninety (90) days as may be necessary to complete such cure.
If STAR assigns any of its rights under this Agreement
12
29
to its lender as collateral security, and at the time of such assignment or
thereafter Worldport receives written notice of such assignment, co-signed by
both such lender and by STAR, Worldport agrees that any written notice of
default by Worldport delivered to STAR under this Section shall be accompanied
by a copy of such notice being delivered simultaneously to such lender, and that
such lender shall have the right to cure any such default on the same basis that
STAR would have the right to cure such default hereunder.
17.2 Remedies. Upon failure to make any payment or other default by
a party, after notice thereof and the above opportunity to cure, the
non-defaulting party may (i) take such action as it determines, in its sole
discretion, to be necessary to correct the default, and/or (ii) pursue any
remedies it may have under applicable law or principles of equity relating to
such default. Notwithstanding the above, if the defaulting party certifies in
good faith to the non-defaulting party in writing that a default has been cured,
such default shall be deemed to be cured unless the non-defaulting party
otherwise notifies the defaulting party in writing within fifteen (15) days of
receipt of such notice.
18. TERMINATION
18.1 Mutuality. Either party may terminate this Agreement upon the
failure of the other party to cure an event of default as required by Section 17
of this Addendum.
18.2 Existing Defaults. Notwithstanding the foregoing, no
termination or expiration of this Agreement shall affect the rights or
obligations of any party hereto with respect to any then existing defaults or
the obligation to make any payment hereunder for services rendered prior to the
date of termination or expiration.
18.3 Non-cancellable IRUs. Notwithstanding any other provision of
this Agreement, there shall be no termination or cancellation of any IRU for any
Capacity for which the entire Purchase Price has been paid..
19. FORCE MAJEURE
21. RULES OF CONSTRUCTION
21.1 Headings. The captions or headings in this Agreement are
strictly for convenience and shall not be considered in interpreting this
Agreement or as amplifying or limiting any of its content. Words in this
Agreement which import the singular connotation shall be interpreted as plural,
and words which import the plural connotation shall be interpreted as singular,
as the identity of the parties or objects referred to may require.
21.2 Telecommunications Industry Usage. Unless expressly defined
herein, words having well known technical or trade meanings shall be so
construed. All listing of items shall not be taken to be exclusive, but shall
include other items, whether similar or dissimilar to those listed, as the
context reasonably requires.
21.3 Cumulative Remedies. Except as set forth to the contrary
herein, any right or remedy of STAR or Worldport shall be cumulative and without
prejudice to any other right or remedy, whether contained herein or not.
13
30
21.4 Negotiations. This Agreement has been fully negotiated between
and jointly drafted by the parties.
21.5 Conflicts. In the event of any inconsistency or conflict
between the provisions of this Addendum and the provisions of this Agreement,
the provisions of this Addendum shall govern. In the event of any inconsistency
or conflict between the provisions of this Addendum or this Agreement and the
provisions of any Exhibits, the provisions of this Addendum and this Agreement
shall govern. Each Exhibit described herein is attached hereto and incorporated
herein by this reference.
21.6 Time Is of the Essence. All actions, activities, consents,
approvals and other undertakings of the parties in this Agreement shall be
performed in a reasonable and timely manner, it being expressly acknowledged and
understood that time is of the essence in the performance of obligations
required to be performed by a date expressly specified herein. Except as
specifically set forth herein, for the purpose of this Section the normal
standards of performance within the telecommunications industry in the relevant
market shall be the measure of whether a party's performance is reasonable and
timely.
22. PUBLICITY
The parties shall cooperate in developing the content and timing of all
press releases and all other publicity related to the subject matter of this
Agreement.
23. ASSIGNMENT
Each party may assign its rights and obligations under this Agreement
without the consent of the other party. All the rights and benefits of this
Agreement shall inure to any successor and assign of either party hereunder,
except that in the event either party assigns this Agreement such party shall
remain liable for its duties and obligations as set forth herein.
24. NO PERSONAL LIABILITY
Each action or claim against any party arising under or relating to
this Agreement shall be made only against such party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate
assets of such party. No party shall seek to ▇▇▇▇▇▇ the corporate veil or
otherwise seek to impose any liability relating to, or arising from, this
Agreement against any shareholder, employee, officer or director of the other
party. Each of such persons is an intended beneficiary of the mutual promises
set forth in this Section and shall be entitled to enforce the obligations of
this Section.
25. RELATIONSHIP OF THE PARTIES
The relationship between STAR and Worldport shall not be that of
partners, agents, or joint venturers for one another, and nothing contained in
this Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including but not limited to federal income tax
purposes. STAR and Worldport, in performing any of their obligations hereunder,
shall be independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
14
31
26. SEVERABILITY
If any term, covenant or condition contained herein shall, to any
extent, be invalid or unenforceable in any respect under the laws governing this
Agreement, the remainder of this Agreement shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
27. COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
28. ENTIRE AGREEMENT; AMENDMENT
This Agreement constitutes the entire and final agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes all prior agreements relating to the subject matter hereof, which are
of no further force or effect. This Addendum and the Exhibits referred to in
this addendum and this Agreement are integral parts of this Agreement and are
hereby made a part of this Agreement. This Agreement may only be modified or
supplemented by an instrument in writing executed by a duly authorized
representative of each party.
IN WITNESS WHEREOF the parties have executed this Addendum as of the
date of the Agreement.
"Worldport":
WORLDPORT COMMUNICATIONS, INC., a Georgia corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice-President
--------------------------------------
"STAR":
STAR TELECOMMUNICATIONS, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, EVP
15
32
EXHIBIT A
WORLDPORT EUROPEAN CITIES
16
33
EXHIBIT B
SYSTEM PERFORMANCE STANDARDS AND SPECIFICATIONS
AND PROTECTION AND RESTORATION STANDARDS
Capacity Specifications and Acceptance Testing
System Performance Standards and Specifications. Worldport at all times will
ensure that the Worldport Network meets or exceeds the following System
Performance Standards and Specifications:
A. SYSTEM DESCRIPTIONS FOR OC-3/STM-1 FOLLOW:
GENERAL DESCRIPTION: The requirements in this Agreement were
developed to establish a practical OC-3/STM-1 interface. Compliance with these
specifications should provide a satisfactory OC interface in a high percentage
of installations. Worldport will allow and encourage STAR's and its Affiliates'
participation to ensure an orderly, functional and mutually trouble-free
interface at all locations. This Technical Reference ("TR") describes physical,
protocol and performance requirements at the Point of Interface ("POI")
necessary for compatible operation between the Worldport and the STAR and its
Affiliates' Installation. Specifically, this TR describes the OC-3/STM-1 optical
interfaces offered by Worldport. The POI specifications have been established
based upon Industry Standards developed by the American National Standards
Institute (ANSI) and Bellcore. This TR articulates Worldport's interpretation of
these standards and provides clarification of interface requirements as
necessary.
OC-3/STM-1: The ANSI SONET (Synchronous Optical Network)
transmission standard for high capacity optical telecommunications, whose line
rate is 155.52 Mbps. One OC-3 is comprised of 3 STS-1 Synchronous Transport
Signal Level 1 signals whose transport overheads are frame aligned, but whose
associated Synchronous payload envelopes are not necessarily aligned. Each
STS-1, at 51.84 Mbps represents the lowest level SONET signal. The STS-1 is
defined at the electrical level prior to optical conversion. These SONET
standards and elements are further defined in the "Bellcore Synchronous Optical
Network (SONET) Transport Systems: Common Generic Criteria GR-253-CORE, Issue 2,
December, 1995."
SONET SIGNAL FORMAT: The signal format at the SONET interface
is based on the SONET frame structure as specified in Bellcore GR-253-CORE,
Synchronous Optical Network (SONET) Transport Systems: Common Criteria Physical
Layer, and ANSI T1.105, Digital Hierarchy B Optical Interface Rates and Formats
Specifications (SONET).
B. TECHNICAL SPECIFICATIONS
1. INTERCONNECT SPECIFICATIONS:
1.1 The STAR's and its Affiliates' interconnection point
of DS-1 & DS-3 signals at the Worldport (SPT) location will be
at an industry standard (DSX-1) &
17
34
(DSX-3) digital cross-connect panels and will be referred to
as the Worldport Network Interface in this document.
1.2 The DS-1 & DS-3 signals terminating at the Worldport
digital cross-connect panels will meet the electrical
specifications as defined in AT&T Compatibility Bulletin (CB)
▇▇. ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇.
1.3 The Worldport Digital Network will be compatible with
the ▇▇▇▇ System hierarchical clock synchronization methods and
stratum levels as described in Bellcore Technical Advisory
(GR436-Core).
1.4 STAR's or its Affiliates' equipment must also meet
the interconnect specifications listed above and shall comply
with jitter requirements of AT&T Technical Reference PUB
63411.
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35
1. Performance Objectives:
2.1 DS1, DS3, and OC-3/STM-1 circuit performance will be
measured using two parameters: Availability and Error-Free
Seconds.
The following assumptions apply to the derived data:
The circuits originate and terminate on the Worldport
backbone
High speed protection switching: 1 for N, where N=2
MTTR for SONET equipment: 2 hours
MTTR for fiber optic cable: 12 hours (Bellcore
Standard)
Cable cut rate: 4.39 /year/1,000 sheath miles
(Bellcore Standard)
2.2 Availability is a measure of the relative amount of
time during which the circuit is available for use. According
to CCITT and ANSI definitions, unavailability begins when the
Bit Error Ratio (BER) in each second is worse than 1.0 E-3 for
a period of 10 consecutive seconds.
INTER OFFICE CHANNEL (IOC) : An Inter Office Channel refers to
the Worldport Communications network between the points of
presence (POP).
OPTICAL CARRIER LEVEL 1 (OC-1) : The optical signal that
results from an optical conversion of an electrical STS-1
signal (51.840 Mb/s). This signal forms the basis of the
interface.
OC-3/STM-1: Optical Carrier level 3 signal operating
at 155.520 Mb/s.
POINT OF PRESENCE (POP) : A physical
location where a long distance carrier terminates lines before
connecting to the local exchange carrier, another carrier, or
directly to a customer.
2.3 The availability objective for all circuits between
Worldport Network Interface points specified above is to
provide performance levels over a 12 month period as follows:
V&H KILOMETERS
DS1, DS3, AND OC-3/STM-1
0-2500
99.999%
2501-4000
99.998%
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36
This excludes any customer provided access links to the
Worldport digital network.
2.4 Outages attributable to incidental damage to or
severage of outside fiber optic cable plant, or scheduled
maintenance is excluded from the performance objective stated
above.
2.5 Error-Free Seconds (EFS) and Error Seconds (ES) are
the primary measure of error performance. An Error-Free Second
is defined as any second in which no bit errors are received.
Conversely, an Error Second is any second in which one or more
bit errors are received.
SONET : Synchronous Optical Network is a family of optical transmission
rates and interface standards allowing internetworking of products from
different vendors. Base optical rate is 51.840 Mb/s. Higher rates are
direct multiples.
SONET TRANSPORT : Services associated with carrying OC-1 or higher
level signals.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL 1 (STS-1) : The basic logical
building block electrical signal with a rate of 51.840 Mb/s.
SYNCHRONOUS TRANSPORT SIGNAL LEVEL N (STS-N) : This electrical signal
is obtained by byte interleaving N STS-1 signals together. The rate of
the STS-N is N times 51.840 Mb/s.
TERMINATING MULTIPLEX (TM) : Provides the multiplex functions for
multiplexing and demultiplexing between the DS1 or higher signal level
and the SONET OC-N level.
ACCEPTANCE CRITERIA. The acceptance criteria for DS1, DS3, and
OC-3/STM-1 circuits between Worldport Network Interface points is to
provide the performance levels shown below during a 60 minute test
period. If no errors are observed during the first 15 minutes of the
test, the facility may be considered acceptable. Access connections to
customer location will be tested in accordance with ▇▇▇▇ Publication
62508.
The tables below are based on QCC owned fiber optic network
only and on the Bellcore Specifications of the SONET delivery
of DS1, DS3, and OC-3/STM-3 directly off the SONET Backbone.
If the DS1, DS3, and OC-3/STM-1 service is delivered at the
STS1 level then the general performance objectives fall into
the industry standard.
20
37
DS1, DS3
The table below defines the general performance objectives for DS1
service operating at 1.544 Mb/s, and the general performance objectives
for DS3 service operating at 45 Mb/s.
V&H KILOMETERS
EFS
BER
0 - 250
99.988 %
10-15
251 - 500
99.983 %
10-15
501 - 1000
99.971%
10-15
1001 - 1500
99.959%
10-15
1501 - 2000
99.948%
10-15
2001 - 2500
99.936%
10-15
2501 - 3000
99.925%
10-15
3001 - 3500
99.913%
10-15
3501 - 4000
99.902%
10-15
21
38
OC-3/STM-1
The table below defines the general performance objectives for
OC-3/STM-1.
V&H KILOMETERS
EFS
BER
0 - 250
99.989%
10-15
251 - 500
99.984%
10-15
501 - 1000
99.974%
10-15
1001 - 1500
99.964%
10-15
1501 - 2000
99.954%
10-15
2001 - 2500
99.944%
10-15
2501 - 3000
99.933%
10-15
3000 - 3500
99.923%
10-15
3501 - 4000
99.913%
10-15
22
39
1. Protection and Restoration of Service. Worldport at all times will
protect and restore STAR's Capacity as follows:
a. In the event of a total or partial failure of Worldport's
Network which includes or in any way affects the performance of the Capacity,
Worldport will take immediate action to restore the full and complete use of the
Capacity via redundant and diverse terrestrial fiber optic cable facilities.
Restoration of the Capacity will have the same priority as that of Worldport's
Network including capacity which may be assigned and used by Worldport or its
Affiliates. The complete restoration of the Capacity provided under this
Agreement will be implemented by Worldport in a manner consistent with industry
standards and shall be immediate and complete in scope and to STAR's and its
Affiliates' satisfaction. In the event a failure occurs to the Capacity which
interrupts, i.e., results in the Capacity being unrestored for any period,
Worldport will provide outage credits to STAR and its Affiliates according to
the provisions of this Agreement.
b. To ensure damage prevention, Worldport will take reasonable
and customary steps to protect the physical integrity of its network.
c. In all cases Worldport shall provide fiber optic transmission
systems equipped with both a working system and a stand-by protection system,
commonly referred to as one-for-one protection, which automatically implements a
switch to the stand-by fiber facility/channel upon a failure of the working
channel. In the event of an electronics/optronics equipment failure on the
working system, the system will switch to the standby or protection hardware.
d. Worldport will provide when available network monitoring and
surveillance and monitor the fiber routes by monitoring for the loss of optical
signal on Worldport-maintained electronics installed on the fiber, subject to
Worldport and STAR and its Affiliates executing a mutually acceptable agreement.
This will be done through a Worldport-operated Network Operations Center (NOC)
which operates seven (7) days a week, twenty-four (24) hours per day.
Worldport's NOC will utilize a network management system which provides this
function and will provide STAR with remote access capability to their OC3/STM-1
level capacity from Worldport's network management system.
e. Worldport will hold regular unannounced fiber restoration
drills to determine the level of readiness of personnel to respond to any
outages. Additionally, Worldport will ensure that all of its operating
facilities are equipped to provide for emergency power in the event that
commercial power is unavailable for any reason. Such emergency power equipment
will be engineered to support the circuit performance needs throughout the
duration of the power outage and until normal operating conditions have been
restored. All of Worldport's operating facilities will be engineered to
withstand hazardous conditions (e.g., hurricanes, floods, etc.).
f. Worldport will provide to STAR an Escalation List to be
attached to this Agreement as Exhibit 1 to provide STAR with an escalation
process in the event of emergency or dispute.
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40
EXHIBIT 1: WORLDPORT ESCALATION AND CONTACT LIST
ESCALATION AND CONTACT LIST
24 Hours Response
"HOT-LINE" ----------------
SPECIALIST ON DUTY DIRECT LINE
-----------------
Ring Operations Center FACSIMILE
-----------------
1st Level Escalation
On Duty Supervisor
--------------------
Ring Operations Center
2nd Level Escalation
-----------------------
Manager, Ring Operations Center
OFF#
------------------------
PGR#
------------------------
E-MAIL
------------------------
3rd Level Escalation
--------------------
Acting Director B Ring Operations Center
OFF#
------------------------
PGR#
------------------------
CELL#
------------------------
E-MAIL
------------------------
ESCALATION TO VP OPS/ROC.........THROUGH MANAGER OR DIRECTOR
4th Level Escalation
------------------
Vice President - Network Services
OFF#
------------------------
PGR#
------------------------
E-MAIL
------------------------
ESCALATION BEYOND 4TH LEVEL........ THROUGH V.P. OPS/ROC
24
41
EXHIBIT C
WORLDPORT TECHNICAL STANDARDS
25
42
Worldport Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
February 19, 1999
STAR Telecommunications, Inc.
▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We refer to that certain Network Services Agreement dated as of
February 19, 1999 (the "Agreement"), by and between STAR TELECOMMUNICATIONS,
INC., a Delaware corporation ("STAR"), and WORLDPORT COMMUNICATIONS, INC.
("WORLDPORT"), a Delaware corporation. Terms not otherwise defined herein shall
have the meanings assigned thereto in the Agreement. Pursuant to the terms of
the Agreement, Worldport has agreed to provide to Star the Capacity on the terms
and conditions set forth therein.
In addition to the Capacity to be provided under the Agreement, we
agree to provide, and you agree to accept, the following:
1. Worldport shall grant to STAR a credit for interim capacity up
to $[ECONOMIC TERMS OMITTED], at a monthly rate of $[ECONOMIC TERMS OMITTED] up
front, on a prorated basis, beginning March 1, 1999. This credit may be setoff
against the amounts owed by STAR to Worldport in connection with the initial
downpayment due under the Agreement.
2. In the event that the STM-1 for London to Frankfurt is not
made available to STAR on or prior to the scheduled Availability Date of April
22, 1999, Worldport shall provide to STAR a credit for Capacity at a monthly
rate of $[ECONOMIC TERMS OMITTED] until the London-to-Frankfurt capacity is made
available to STAR.
3. These credits shall be applicable to any payment owing by STAR
to Worldport at any time, either under the agreement or otherwise.
"INFORMATION ON THIS PAGE SUBJECT TO CONFIDENTIAL TREATMENT REQUEST."
43
STAR Telecommunications, Inc.
February 19, 1999
Page 2
This letter shall inure to the benefit of the successors and assigns of
the parties.
If you agree to the terms set forth in this letter, please so indicate
by signing below and returning a copy of this letter to us.
WORLDPORT COMMUNICATIONS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Its: Executive Vice-President 2/19/99
-------------------------------
Agreed and accepted
STAR TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Its: EVP
--------------------------