Co-location agreement Startec and Esprit Telecom Benelux
ESPRIT TELECOM CO-LOCATION AGREEMENT
Terms and Conditions
BETWEEN:
ESPRIT TELECOM BENELUX BV, a company incorporated under the laws of The
Netherlands and registered under number 33288194 having its registered offices
at Amsterdam (hereinafter referred to as "ESPRIT")
AND,
STARTEC, a company incorporated under the laws of The Netherlands and registered
under number 33305390 having its registered offices at Official ▇, ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ Amsterdam, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (hereinafter
referred to as "the CUSTOMER")
hereinafter "the Parties" and, separately, "the Party".
IT IS AGREED AND ACCEPTED AS FOLLOWS:
1. DEFINITIONS
In this Agreement the following terms shall (unless the context otherwise
requires) have the following meanings:
"ADDITIONAL SERVICES" means the services to be provided by ESPRIT as which are
described in Annex 1 to this Agreement.
"AFFILIATE" means any holding company or subsidiary or any subsidiary of such
holding company.
"AGREEMENT" means this Agreement and the annexes attached hereto, including any
Service Level Agreement(s). 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 this Agreement shall prevail.
"ANNUAL ESPRIT SERVICE FEE" means the yearly amount stated in the CUSTOMER
Service Order Form attached under Annex 2 subject to any adjustment made under
Clause 5.1(d) and Clause 9(d) to be paid in advance for the provision of the
Services.
"BUILDING" means any building as designated by ESPRIT form time to time prior
and/or after the signature of this Agreement and approved by the CUSTOMER.
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Co-location agreement Startec and Esprit Telecom Benelux
"CHARGES" means all sums payable by CUSTOMER to ESPRIT in exchange for the
Services and Additional Services received under this Agreement and specified in
Annex 1 and/or the Invoice if applicable.
"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.
"CONNECTION FEE" means the amount agreed between ESPRIT and the CUSTOMER for the
connection of a power supply to CUSTOMER Equipment in the Serviced Room, as a
result of the qoutation issued by ESPRIT, accepted by the CUSTOMER and specified
in the CUSTOMER Service Order Form.
"CUSTOMER EQUIPMENT" means the equipment, as may be specified in the Service
Order Form, owned or leased by the CUSTOMER to be installed in the Serviced Room
pursuant to this Agreement.
"ESPRIT EQUIPMENT" means any telecommunications equipment as may be specified in
the Service Order Form, which is supplied by ESPRIT for the provision of the
Services to the CUSTOMER.
"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, strike, riot, insurrection or civil
disorder, war, national or local emergency, act of God, government or other
competent authority or of any other telecommunications operator, or complete or
partial shut down of plant or the ESPRIT telecommunications network by reason of
power failure or technical failure of any equipment operated by any other
telecommunications operator.
"HOURLY FEES" means ESPRIT's then current standard hourly charge applying from
time to time plus expenses as specified in the relevant Service Order Form.
These Hourly Fees correspond to any services ancillary to the Additional
Services and to the Services as described in Annex 1.
"INVOICE" means the periodic statement sent by ESPRIT to the CUSTOMER setting
forth the charges incurred by the CUSTOMER for the use of the Services and the
Additional Services.
"LICENCE FEE" means the yearly amount stated in the Service Order Form, subject
to any adjustment made under Clause 5.1(d), and Clause 9, to be paid in advance
by the CUSTOMER for the grant of the Licence by ESPRIT.
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"SERVICES" means the services provided by ESPRIT allowing the CUSTOMER to place
and connect its telecommunications equipment in an environment designed
specifically for the purpose as more specifically defined in Annex 1.
"SERVICE COMMENCEMENT DATE" means the date agreed between the Parties for the
delivery of the Services and specified in the Service Order Form.
"SERVICE ORDER FORM" means the form attached under Annex 2 CUSTOMER must fill in
and send to ESPRIT pursuant to the Service Order Procedure described in Annex 3.
"SERVICE PERIOD" means the 12 month period commencing on the date of signature
of this Agreement.
"SERVICED ROOM" means such part of the Building as shall have been designated by
ESPRIT prior to the signature of this Agreement for the installation of CUSTOMER
Equipment, as the same may be changed under Clause 6.
"TERM" is the period of validity of this Agreement as set forth in Clause 4.
"UNDERLYING CUSTOMER CONSENTS" means any and all permissions, consents,
approvals, easements, wayleaves, and permits in legally acceptable form as are
necessary to enable the CUSTOMER and its employees, agents, or sub-contractors
to operate the telecommunications systems of the CUSTOMER and to enable the
CUSTOMER to use the Services to be provided under this Agreement.
"UNDERLYING NETWORK CONSENTS" means any and all permissions, consents,
approvals, easements, wayleaves, rights, authorisations, supplier agreements or
any other underlying requirement as are necessary to enable ESPRIT and its
employees, agents or sub-contractors to construct, operate and maintain the
ESPRIT's telecommunications network and provide the Services and Additional
Services herein described.
2. SCOPE OF AGREEMENT
Subject to the terms and conditions of this Agreement, ESPRIT hereby agrees to:
(a) install and connect the power supply to CUSTOMER Equipment at the Serviced
Room;
(b) grant the CUSTOMER the Licence described in Clause 3 relating to
installation of and access to CUSTOMER Equipment;
(c) provide the Services and Additional Services.
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3. GRANT OF LICENCE
3.1 ESPRIT hereby grants to the CUSTOMER with effect as of the date hereof a
non-exclusive non-transferrable right ("the Licence"), without prejudice to
Clause 18 ("Assignment") hereunder, during the Term of this Agreement:
a) to retain CUSTOMER Equipment in the Serviced Room as a licensee of
ESPRIT.
b) from time to time during the Term for those employees and third party
telecommunication carrier and maintenance representatives of the
CUSTOMER previously notified to ESPRIT to enter the Building for the
purposes, on behalf of the CUSTOMER in its capacity as licensee, of
inspecting CUSTOMER Equipment and repairing or maintaining the same if
the Services and/or Additional services to be provided by ESPRIT do
not include the particular item of repair or maintenance then
required.
3.2 The CUSTOMER acknowledges and agrees that the Serviced Room will contain
equipment of other ESPRIT's customers as well as CUSTOMER Equipment and that the
use of the Serviced Room will be shared with other customers.
3.3 ESPRIT warrants that it has the right to grant the Licence.
3.4 As part of its security procedures ESPRIT reserves the right to refuse any
person entry to the Building or the Serviced Room or access to CUSTOMER
Equipment, including any employee in respect of whom the CUSTOMER has failed to
request rights of access from ESPRIT as well as any third party
telecommunication carrier or maintenance representative in respect of whom the
CUSTOMER fails to give ESPRIT prior notice of the name of such representative,
and the date and time for which access of CUSTOMER Equipment is required. ESPRIT
will not be responsible for the consequences of any such refusal or failure or
delay by the CUSTOMER in notifying ESPRIT of its access requirements.
4. TERM
This Agreement shall commence on the date hereof and subject to the provisions
for earlier termination contained herein shall continue for the Service Period
and thereafter unless and until terminated by either Party pursuant to Clause 14
or to Clause 16 hereunder or giving to the other not less than three (3) months
prior written notice to expire on the last day of any calendar month thereafter.
5. EQUIPMENT
5.1 Subject to this Clause the CUSTOMER shall be responsible at its own expense
for supplying and installing CUSTOMER Equipment at the Serviced Room in
accordance with an installation plan and timetable agreed in advance with
ESPRIT:
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a) ESPRIT will be responsible for the supply and installation of racking
and cabling of the quantities and at the prices separately agreed
between ESPRIT and the CUSTOMER and such supply and installation shall
be subject to the terms of ESPRIT's then current standard conditions
for the supply and/or installation of the equipment.
b) Additional equipment to that listed in the Service Order Form may be
installed in the Building subject to ESPRIT confirming in writing that
there is sufficient space available in the Building and subject to c)
hereunder, and the Service Order Form shall be amended accordingly.
c) If additional equipment requiring additional floor space is installed
under b) hereabove ESPRIT has the right to charge an additional
Connection Fee for every such installation and to increase the Annual
ESPRIT Service Fee and Licence Fee by such amount as notified by
ESPRIT.
5.2 The CUSTOMER shall at all times throughout the Term:-
a) Maintain an up-to-date, complete and accurate inventory of CUSTOMER
Equipment and provide ESPRIT with a copy on request;
b) Ensure that CUSTOMER Equipment is clearly identified as belonging to
the CUSTOMER;
c) ensure that the CUSTOMER Equipment conforms at all times with the
environmental and operating requirements specified by ESPRIT from time
to time and make all necessary adjustments;
d) Guarantee that its personnel and its authorized person shall access
only the Serviced Room.
5.3 Title to equipment, apparatus or property held, owned, or otherwise
possessed or attributed to either Party shall not pass to the other Party under
this Agreement, unless specifically provided for under this Agreement.
Furthermore, neither Party shall remove, tamper with or obliterate any
identification ▇▇▇▇(s) affixed to any such equipment, apparatus or property or
to any part thereof belonging to or attributed to the other Party.
5.4 The CUSTOMER agrees that ESPRIT may temporarily disconnect the power supply
to the CUSTOMER Equipment or any part for the purposes of investigating and
rectifying any reported problems or carrying out maintenance relating to the
CUSTOMER Equipment, ESPRIT Equipment, the Serviced Room, the Building or other
equipment in the Building. Wherever possible (emergencies excluded) ESPRIT will
give advance notice of such disconnection and use all reasonable endeavors to
cause minimum disruption to the operation of the CUSTOMER Equipment by
endeavoring to
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make the disconnection outside ESPRIT's standard working hours 0900 to 1700
Monday to Friday excluding public holidays.
5.5 The CUSTOMER shall be responsible at its own expense for all communication
costs and expenses arising in connection with access to and use of CUSTOMER
Equipment, including installation, connection and rental charges.
6. RE-LOCATION OF THE EQUIPMENT
6.1. ESPRIT shall have the right, subject to giving not less, save in case
of emergency, than 90 days prior written notice to the CUSTOMER, from
time to time during the Term to require all or some of CUSTOMER
Equipment to be moved from the Serviced Room or any other part of the
Building where CUSTOMER Equipment is then located and to be installed
in some other part of the Building. All reasonable costs and expenses
arising in connection with such relocation of CUSTOMER Equipment shall
be borne by ESPRIT.
6.2 ESPRIT agrees that in specifying the time-scale for any relocation of
CUSTOMER Equipment ESPRIT shall, where reasonably practicable, consult
with the CUSTOMER about any relocation of CUSTOMER Equipment and use
all reasonable endeavors to specify a time-scale that causes minimum
disruption to the operation of CUSTOMER Equipment.
7. CUSTOMER'S OBLIGATIONS
7.1 The CUSTOMER hereby agrees with ESPRIT to pay all fees and charges due to
ESPRIT and without limitation:
a) to pay the Connection Fee on or before the commencement of the
installation of CUSTOMER Equipment or at such other time agreed by
ESPRIT.
b) to pay the Licence Fee and the Annual ESPRIT Service Fee by equal
monthly instalments in advance on the first days of each month each
year, the first instalments to be a proportionate amout calculated
from the date hereof and payable upon the CUSTOMER's signature of this
Agreement.
c) to pay the Hourly Fees, which will be invoiced monthly in arrears,
within 30 days after the date of ESPRIT's Invoice.
d) to pay value added tax and any other sales taxes (if applicable) at
the then prevailing rate.
e) to pay any bank charges which may arise if the CUSTOMER pays by bank
transfer to ESPRIT.
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Co-location agreement Startec and Esprit Telecom Benelux
7.2 The CUSTOMER is soley responsible for ordering from and paying direct to
any public telecommunications carrier or supplier all communication
circuits for use in connection with CUSTOMER'S Equipment.
7.3 The CUSTOMER hereby agrees to strictly respect the security procedures of
ESPRIT, and such other security procedures and/or requirements that may be
otherwise applicable
7.4 The CUSTOMER agrees upon expiry of the Agreement to dismantle and
disconnect CUSTOMER Equipment and return the Serviced Room in its original
state, subject to damages caused by normal wear and tear.
8. ESPRIT'S OBLIGATIONS
ESPRIT hereby agrees to:
(a) secure the required authorizations for the installation of CUSTOMER
Equipment from its landlords if any;
(b) allow the CUSTOMER to modify or upgrade CUSTOMER Equipment upon at least 60
days prior written notice to ESPRIT if such reasonably required and if such
modification or upgrade does not materially change the scope of this
Agreement. If such modification or upgrade change the basis of this
Agreement the Parties shall amend this Agreement accordingly;
(c) provide reasonable notice if any interference occurs between CUSTOMER
Equipment and the equipment of a third party and such interference shall be
resolved by ESPRIT together with the CUSTOMER in such manner as ESPRIT
directs to which the CUSTOMER shall comply;
(d) make the Services and the Additional Services available for use by the
CUSTOMER during the Service Period unless the Services are suspended
pursuant to Clause 14 and/or Clause 15, or this Agreement is terminated
pursuant to Clause 16;
(e) operate the Services and Additional Services with reasonable care and kill,
but ESPRIT does not warrant or undertake the Services and Additional
Services will cause CUSTOMER Equipment to operate without fault or
interruption.
9. CHARGES
(a) The CUSTOMER shall pay all Charges due as may be specified between the
Parties and in any Invoice without set off or counterclaim.
(b) If applicable, ESPRIT shall invoice CUSTOMER monthly in advance. Invoices
shall be due within thirty (30) days of the date of invoicing without
prejudice to ESPRIT's rights to treat a default-in-payment as a breach of
the Agreement.
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Co-location agreement Startec and Esprit Telecom Benelux
(c) All charges payable under this Agreement shall be calculated in accordance
with this Agreement and made in the currency specified in the CUSTOMER
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 supply and shall be paid by the CUSTOMER.
(d) ESPRIT reserves the right to vary the Charges from time to time during the
Service Period upon giving the CUSTOMER at least thirty (30) days prior
written notice of such variation.
(e) If either Party is required to pay a tax under or as a result of this
Agreement, such Party shall pay such tax and any other amounts as are
necessary to ensure that the net amounts received by the other Party equal
the amounts to which the other Party is otherwise entitled under this
Agreement.
(f) The timely payment of all sums due to ESPRIT under Agreement is of the
essence of this Agreement.
(g) Any overdue amounts shall accrue interest, to the extent permited by
applicable laws, at a fixed rate per annum equal to three (3) per cent
above the LIBOR in effect on the day following the date payment of the
Invoice was due.
(h) In the event that the CUSTOMER disputes an Invoice, and the amount disputed
is greater than five per cent (5%) of the value of the relevant Invoice
(excluding VAT), then the CUSTOMER shall issue ESPRIT a notice in writing
within seven (7) dyas of the receipt of the relevant Invoice specifying the
nature of the dispute. The Parties shall then use their best endeavours to
resolve the dispute within fifteen (15) days of the receipt of the relevant
Invoice, failing which the dispute shall be escalated to the respective
Finance Directors for resolution.
(i) If notwithstanding provision (g) the Parties fail to resolve the dispute
then the Parties may agree to have the dispute settled by such person (or
persons) nominated by the President of the Institute of Chartered
Accountants ("Nivra") in the Netherlands (or other similar professional
association) to act as expert(s) and not as arbitrator(s) and whose
decision, in the absence of manifest error, shall be final and binding. The
parties shall pay the costs of such expert(s) in such proportion as shall
be determined by the expert(s) themselves taking into account the
applicable circumstances and based on the principles of fairness and
equity.
10. DEPOSITS
ESPRIT may require payment from the CUSTOMER of a deposit upon execution of this
Agreement of such amount ESPRIT reasonably requires as security for the payment
of any Charges payable under this Agreement. ESPRIT may at its sole discretion
apply the whole or any part of such deposit on or torwards payment of any sums
due to ESPRIT
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under this Agreement and may require the CUSTOMER to pay a further deposit to
ESPRIT in replacement of any amounts so applicable.
11. LIMITATION OF LIABILITY
(a) This clause 11 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 (without
limitation) any liability for negligence howsoever arising.
(b) 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. ESPRIT's
entire liability in this respect shall be limited to five thousand (5,000)
Dutch Guilders per person with a maximum of two million (2,000,000) Dutch
Guilders per series of event in any year (a year being twelve months from
the date of this Agreement and from each anniversary thereof).
(c) Neither Party shall have any liability to the other in respect of this
Agreement including (without limitation) any liability: (i) for any loss or
revenue, business, contracts, anticipated savings or profits; or (ii) any
indirect, special or consequential loss.
(d) ESPRIT's entire liability including (without limitation) any liability for
negligence howsoever arising in connection with this Agreement shall be
limited to two million Dutch Guilders (Dfl2,000,000) in 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 CUSTOMER shall subscribe with a recognised insurance company a special
insurance policy covering its liability against ESPRIT for an amount of at
least two million Pounds ((pound)2,000,000). Upon request from ESPRIT the
CUSTOMER shall provide ESPRIT with a copy of the corresponding insurance
certificates.
(f) The provisions of this Article shall survive the expiry or termination of
this Agreement.
12. CONFIDENTIALITY
Each Party shall at all times use their best endeavours 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 (even after termination or expiry of the Agreement and for a period
of two years thereafter) save for any information:
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a) Which is publicly available or becomes publicly available through no act of
the first receiving Party or which it is compelled by a competent court or
authority to disclose;
b) Which was in the possession of the receiving Party 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.
13. INTELLECTUAL PROPERTY
(a) Nothing in this Agreement shall be deemed to confer on either Party any
rights or licences in respect of intellectual property of the other.
(b) The CUSTOMER will indemnify ESPRIT and hold ESPRIT harmless against
(without limitation) all costs, claims, losses, damages, expenses and
liabilities howsoever arising suffered or incurred by ESPRIT in connection
with any claim that the use or possession of CUSTOMER Equipment or any
CUSTOMER materials infringes the copyright, mask works, design, or any
other intellectual property rights of any third party.
14. 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.
(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 30-day period, provided that such
notice will be 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.
15. SUSPENSION OF SERVICES
(a) ESPRIT may, at it sole discretion, suspend the provision of the Services
and/or the Additional Services until further notice (i) if ESPRIT has a
right to terminate this
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Agreement pursuant to Clause 16 hereunder; or (ii) If ESPRIT needs to carry out
emergency works on the ESPRIT's telecommunications Ions network, on the Building
and/or on the Serviced Room: or (iii) if ESPRIT is required to comply with a
government, administrative or judicial order, decision or other such requirement
that would prevent ESPRIT from providing the Services and/or Additional
Services.
(b) In the event that ESPRIT exercises its right to suspend the Services and/or
the Additional Services it shall provide advance notice to the CUSTOMER
where it is reasonably practicable to do so, or as soon as reasonably
practicable following suspension.
(C) ESPRIT shall not be liable for any loss, damage or inconvenience suffered
by the CUSTOMER as a result of any suspension made pursuant to Section 15
(a).
16. TERMINATION OF AGREEMENT
Either Party shall he entitled forthwith to terminate this Agreement if the
Party against whom termination is sought:
(a) commits a breach of any provision of this Agreement (save for any beach
which iscaused 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:
(b) fails to pay any sum due under this Agreement;
(C) becomes subject to in administration order;
(d) commences winding up (except for purposes of an amalgamation,
reconstruction or other reorganization and in such manner that the Party or
its successor resulting from the reorganization effectively agrees to be
bound by or to assume the obligations imposed and is able to do so on that
other Party under this Agreement);
(e) ceases, or threatens to cease, to carry on business; or
(f) is subject to an encumbrancer taking possession or a receiver being
appointed over any of the property or assets of that Party; or
(g) CUSTOMER ceasing to possess or hold the requisite Underlying CUSTOMER
Consents; or
(h) ESPRIT ceasing to possess or hold the requisite Underlying CUSTOMER
Consents; or
Notwithstanding the foregoing, ESPRIT may terminate this Agreement by written
notice to CUSTOMER at any time upon expiration or termination for any reason of'
the lease agreement of the Building signed by ESPRIT with its landlord if any.
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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.
17. NOTICES
(a) 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:
ESPRIT: ▇▇. ▇.▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
With a copy to the General Counsel: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
(fax)
CUSTOMER: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Fax: + ▇ ▇▇▇ ▇▇▇-▇▇▇▇
With a copy to the General Counsel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
(Fax)
(b) Any Party may change contact information by giving the other Party prior
written notice.
18. ASSIGNMENT
(a) This Agreement is personal to the CUSTOMER and it shall not be assigned,
delegated, transferred or otherwise disposed of without the prior written
consent of ESPRIT, such consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, ESPRIT shall have the right to use
subcontractors to perform some of the duties and/or obligations hereunder.
(b) For the avoidance of doubt, either Party may assign the benefit of this
Agreement to any Affiliate (for so long as they remain an Affiliate and are
legally and materially able to comply with the obligations set forth in
this Agreement).
19. NO PARTNERSHIP
Nothing in this Agreement shall create, or be deemed to have created, a
partnership between the Parties.
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20. 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.
21. 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 authorised representatives of the Parties.
22. 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.
23. 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.
24. 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 tirne to time.
25. HEADINGS
Headings are inserted for convenience only and shall not affect the construction
of the Agreement.
26. 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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27. GOVERNING I~AW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with Dutch Law
and both Parties irrevocably submit to the exclusive jurisdiction of the Dutch
Courts.
28. MISCELLANEOUS
(a) If this Agreement has already been signed by ESPRIT, it shall not be open
for acceptance and signature by the Customer after thirty (30) days
following the date of signature by ESPRIT.
This Agreement has been made at Esprit Telecom on this day 21st of September
1998
Signed for and on behalf of: Signed for and on behalf of,
ESPRIT TELECOM STARTEC
21/9/95
Name: /s/ ▇▇▇ ▇▇ ▇▇▇▇▇ Name: /s/ ▇▇▇ ▇▇▇▇▇▇▇ 9/21/98
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▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Manager Carrier Services Title: Director, Operations
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Co-location Agreement Startec and Esprit Telecom Benelux
SERVICES - ADDITIONAL SERVICES ANNEX I
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1. STANDARD SERVICES
o FLOOR SPACE in Serviced Roorns built on ESPRIT's switch room
premises
Rooms are air-conditioned, fed with uninterruptible power (48V,
two hour full load power failure capacity);
Raised computer flooring with access for power and
telecommunications cabling:
Power for test equipment and tools;
Lighting.
o EQUIPMENT INSTALLATION AND COMMISSIONING
The customer has the right to install and commission the equipment
covered under this Agreement in the Serviced Room.
o REMOTE ACCESS TELEPHONE LINE for equipment
Equipment Monitoring via a separate channel for reliability.
o ACCESS during standard working daytime for installation and
commissioning
2. ADDITIONAL SERVICES (SUBJECT TO AGREEMENT AND THE PAYMENT OF ADDITIONAL
CHARGES)
o OPTIONAL network management and alarm monitoring
Subject to specific requirements and negotiation, ESPRIT may take
on local management responsibilities, maximising the managed
services offer.
o ESCORTED access available 24/7/365
Escort is chargeable per hour.
o RACKING suitable for the installation of telecommunications
equipment;
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Co-location agreement Startec and Esprit Telecom Benelux
o LIAISING with the CUSTOMER over equipment installations by
suppliers or public telecommunications carriers, or maintenance
visits by any authorised maintainer.
o FIRST LINE MAINTENANCE of CUSTOMER Equipment subject to an
additional Service Level Agreement;
o EQUIPMENT COMMISSIONING on behalf of the customer subject to an
additional Service Level Agreement
o HIGHER POWER CAPACITY
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Co-location agreement Startec and Esprit Telecom Benelux
SERVICE ORDER FROM ANNEX II
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1. CUSTOMER
Order Id.
Startec Global Communications
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
Director Operations
1 301 767 1439
1 301 365 2895
2. CO-LOCATION ADDRESS
Esprit Telecom will make provision for co-location of CUSTOMER Equipment at:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇
Manager Carrier Services
+ 31 20 5711711
+ 31 20 5711 722
3. CO-LOCATION SERVICE DETAILS
The following Services will be made available at the hereabove specified
address:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇. C tower, 9th floor.
o Floor space required in standard footprints: 2 (1 for rack, 2 x 0.5 for
moving space)
o 2 x 19" Racking to be provided, as described, as described in Annex 4 in
this document.
o Additional services
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Co-location agreement Startec and Esprit Telecom Benelux
Services Commencement Date - Requested 21 September 1998 - Agreed LL
----------------- ----
Details of CUSTOMER Equipment to be installed:
DSC CTC-421 (4:1) Compression equipment, which will connected to 2 Mbps between
Amsterdam and London
And connected to 2Mbps between Amsterdam and a 0800 IN platform of Esprit
Telecom/IMS
4. PAYMENT DETAILS(1)
CONTRACT TERM BILLING PERIOD CURRENCY VAT RATE
--------------- ---------------- ---------- ---------
1 year Monthly Dfl 17.5%
Standard services covered under this agreement:
CONNECTION FEE HOURLY FEE LICENCE FEE ANNUAL ESPRIT SERVICE FEE
---------------- ------------ ------------- --------------------------
DFl 833.19,- Dfl 250,-* Dfl 0 Dfl 14.400
Additional Services covered under this agreement:
NON-RECURRING CHARGES ANNUAL SERVICE FEE OTHER OTHER
----------------------- ------------------------ ------- ------
Dfl 7463.01 Dfl 14.400
(Annex 4)
Dfl 833.19,- (Dfl 600 per footprint
(Annex 5) per month)
Additional Services to be charged on usage at agreed rates during the Agreement:
Emergency off hours Cabeling Other Other
---------------------- ----------------- ------- ------
Dfl 250,-per hour Dfl 65,-per hour
Deposit Terms (if applicable): Non-recurring Charges payable in 30 days
Additional Terms (if applicable)
----------------------------
1 Further details of the elements indicated "other" and "if applicable" may be
attached on additional pages.
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5. CUSTOMER CONTACT DETAILS
Commercial Billing
Startec Company Startec
10411 Motor City Drive Address 10411 Motor City Drive
Suite 301 Suite 301
Bethesda MD ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Post code 20817
USA Country USA
▇▇▇ ▇▇▇▇▇▇▇ Contact Person ▇▇ ▇▇▇▇▇▇▇
+ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Phone no. + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇ +
+ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Fax no. + 1 301 365 2895
VAT Number -----------------------------
6. ESPRIT CONTACT DETAILS
Commercial Billing
Esprit Telecom Benelux BV Esprit Telecom Benelux BV
Strawinskylaan 929 Strawinskylaan 929
1077 XX Amsterdam 1077 XX Amsterdam
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▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
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Co-location agreement Startec and Esprit Telecom Benelux
SERVICE ORDER PROCEDURE ANNEX III
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1. PLACING AN ORDER
(a) CUSTOMER shall place a service order by using the CUSTOMER Service Order
Form designed for the Co-location Services.
(b) ESPRIT will acknowledge receipt of the service order within one working day.
(c) On receipt of the service order, ESPRIT will verify the service requested,
determine whether the Service Commencement Date requested is feasible, and
confirm or review the date with the CUSTOMER.
2. CONFIRMING AN ORDER
(a) Upon completion of verification procedures by ESPRIT, the Parties shall then
sign the CUSTOMER Service Order Form. In order for the service order to
remain valid, the Parties shall sign it within one week of agreement of the
Service Commencement Date.
(b) If the service order details (including Service Commencement Date) cannot be
verified within one week of order receipt, then ESPRIT Telecom will keep the
CUSTOMER informed of progress on a weekly basis during verification.
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Co-location agreement Startec and Esprit Telecom Benelux
RACKING TO BE PROVIDED ANNEX IV
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Esprit Telecom Carrier Services has purchased 2 x 19" racking for Startec
according the following specifications.
Esprit Telecom will provide a separate invoice for this equipment.
-------------------------------------------------------------------
DESCRIPTION AMOUNT IN DFL.
------------------------------------------------- ---------------
2 x 19" racks for Paris and Amsterdam
2 E.II.45.6.6. Enclosure C/W cowl top, 19" rack 2,272.38
2 E.II.GD.45.6/901 Smoked glazed front door 783.32
2 E.II SD.45.6 Steel rear door 391.28
2 E.II RU.45.6 Rear 19" racking 279.84
2 E.II.FP.6.6 Fan Plate 123.40
2 AC.FK.4 4 Fans Fully wired 578.60
2 ▇▇.▇▇▇.▇▇ Castors 175.20
2 AC.SSVS.5 5 horizontal socket strip 331.76
2 Paint charge 145.20
TOTAL 2 x 19" rack 5,081.00
Delivery cost Netherlands 961.95
Delivery cost France 308.55
SUBTOTAL 6,351.50
B.T.W. / V.A.T. 17.5% 1,111.51
---------------
Total charge f 7,463.01
-----------------------------------------------------------------
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Co-location agreement Startec and Esprit Telecom Benelux
CONNECTION 2 X 2MBPS TO CO-LOCATION ANNEX V
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Esprit Telecom will connect 2 x 2mpbs to co-location room.
Esprit Telecom will provide a separate invoice for this connection.
--------------------------------------------------------
DESCRIPTION AMOUNT IN DFL.
-------------------------------------- ---------------
Connection Fee, 2 Mbps to Co-location
Coax cable (160 meters) 197.60
BNC connectors (16) 84.00
U links (16) 180.00
247.50
TOTAL CONNECTION 709.10
B.T.W. / V.A.T. 17.5% 124.09
-------------
Total charge f 833.19
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