Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act.
Exhibit 10.2
(Translation)
SERVICES CONTRACT [CONTRATO DE PRESTACION DE SERVICIOS] MADE BY AND BETWEEN
UNINET, S.A. DE C.V. ("UNINET"), REPRESENTED BY ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
AND AOL MEXICO, S. DE ▇.▇. DE C.V. (THE "CUSTOMER"), REPRESENTED BY ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (UNINET AND THE CUSTOMER ARE HEREINAFTER JOINTLY
REFERRED TO AS THE "PARTIES"), PURSUANT TO THE FOLLOWING REPRESENTATIONS AND
CLAUSES.
R E P R E S E N T A T I O N S :
I. Uninet represents as follows:
a) That it is a Mexican company legally incorporated pursuant
to deed N(degree) 106,300, dated July 26, 1995, executed before ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, Notary Public N(degree) 54 of the Federal District, whose first
notarial copy [TESTIMONIO] was duly recorded under company file [FOLIO
MERCANTIL] N(degree) 200,279 with the Federal District Register of Deeds
[REGISTRO PUBLICO DE COMERCIO] del D.F., on August 15, 1995.
b) That its attorney in fact, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
has the necessary authority to execute this Contract, and that said authority
has not so far been revoked or otherwise limited, as established with public
deed N(degree) 120,845, dated MAY 18, 2000, executed before ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, Notary Public N(degree) 54, whose first notarial copy was duly
recorded under companY FILe N(degree) 200,279 with the Federal District Register
of Deeds.
c) That its corporate purpose includes providing package
switched data transmission value added services [SERVICIOS DE VALOR AGREGADO DE
TRANSMISION DE DATOS POR CONMUTACION DE PAQUETES] and that it has the necessary
technical and human resources to do so, pursuant to this Contract.
d) That its service of process address is Periferico Sur 3190,
Colonia Jardines del Pedregal, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, D.F., and that its
Commercial Director is its agent for service of process purposes, on whom all
process should be swerved with a copy to the Chief Executive Officer [DIRECTOR
GENERAL].
II. The Customer represents as follows:
a) That it is a business company legally incorporated pursuant
to public deed N(degree) 43,377, dated May 24, 1999, executed before ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ y Bandera, Notary Public N(degree) 1 of the City of Mexico, Federal
District, whose first notarial copy was recorded under company file N(degree)
251511 with the Register of Deeds of this City, on June 10, 1999.
b) That its attorney in fact, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, has the necessary authority to execute this Contract, and that said
authority has not been revoked, modified or otherwise limited, as established
with public deed N(degree) 47,643, dated February 25, 2002, executed before ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ y Bandera, Notary Public N(degree) 1 of the Federal District,
which was recorded under company file N(degree) 251511 with the Register of
Deeds of this City.
2
c) That its corporate purpose allows it to enter into this
Contract.
d) That it wishes to receive the Contract services in the
terms and conditions of this Contract.
e) That its address for service of process purposes is Blvd.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 36, Piso 5, Colonia ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, D.F., and that its Operations Director [DIRECTOR DE OPERACIONES]
is its agent for service of process purposes, upon whom all process should be
served with a copy to its Legal Counsel [DIRECTOR LEGAL].
NOW, THEREFORE, the Parties agree as follows:
CLAUSES
FIRST. PURPOSE
Uninet will provide traffic reception, management and delivery
services to the Customer using the Internet Network connected to the Customer's
Network, in the terms and conditions of this Contract and its exhibits (the
"Services").
The Services will be provided through Uninet's switched port
infrastructure [INFRAESTRUCTURA DE PUERTOS CONMUTADOS] that the Customer may
request from time to time. Said switched ports are hereinafter referred to as
either "Port" or "Ports."
SECOND. SERVICE REQUESTS
The Customer will request Uninet in writing to provide Ports
(a "Port Request").
Said Port Request must specify:
(i) The required delivery date (the "Initial Delivery Date").
(ii) The city (local area) where the Ports will be supplied.
(iii) Number of Ports requested.
(iv) Whether new Ports or the expansion of existing Ports is
requested.
THIRD. PORT DELIVERY
Upon receipt of each Port Request:
(i) If it is unable to comply with the Port Request, Uninet
must reply in writing, within a maximum seven-calendar-day term following the
Port Request receipt date, that it is unable to deliver the Ports, with an
explanation of such inability, or else that it is unable to supply them on the
Initial Delivery Date, in which case it will propose a new delivery date (the
"New Delivery Date"); the Customer must report back, within a maximum
seven-calendar-day term following receipt of Uninet's response, whether or not
it accepts the New Delivery Date.
Uninet will not be deemed to have defaulted its obligations
hereunder if the Customer does not accept the New Delivery Date.
3
(ii) If Uninet can comply with the Port Request, it must
deliver the Ports on the Initial Delivery Date.
(iii) In the event that Uninet can deliver the Ports before
the Initial Delivery Date or the New Delivery Date, Uninet will so advise the
Customer, which will respond within a maximum seven-calendar-day term whether or
not it accepts the earlier delivery (the "Earlier Delivery Date"). In the event
that the Customer does not accept the Earlier Delivery Date, Uninet must deliver
the Ports on the Initial Delivery Date or the New Delivery Date, as the case may
be.
In any of paragraphs (i), (ii) and (iii) above, Uninet will
have an additional seven-calendar-day term following the Initial Delivery Date
or the New Delivery Date or the Earlier Delivery Date, as the case may be, to
deliver the requested Ports (the "Grace Period"), on the understanding that only
in the event that Uninet fails to deliver the Ports upon or before the maturity
of the Grace Period, must Uninet discount the amounts listed on Exhibit 2
hereto.
The Customer will always make sure that there is a period of
at least 42 calendar days between the Port Request filing date and the Initial
Delivery Date.
A Port Request will be deemed to have been accepted (i) on the
date of receipt of the Customer's reply in which it accepts the New Delivery
Date, (ii) on the eighth calendar day following the Port Request receipt date if
Uninet has not reported anything back in that respect, or (iii) on the receipt
date of Uninet's reply to the Customer accepting the Port Request (any of such
events hereinafter being referred to as the "Port Request Acceptance Date").
The Parties agree that the Port delivery procedure will be
described on Exhibit 3 hereto.
FOURTH. SERVICE ACCEPTANCE
Upon delivery of any Port, the Services to be provided to such
Port(s) will be accepted pursuant to the procedure described on Exhibit 3
hereto.
For the purposes of this Contract and its Exhibits, it will be
understood that the Services have been accepted upon the execution of the
so-called "Service Receipt Record(s)" (the "Acceptance Date").
The Ports that have been accepted as of the execution of this
Contract are listed on Exhibit 8 hereto.
FIFTH. QUALITY PARAMETERS
Throughout the Contract term, Uninet will so provide the
Services that the Customer may use the same pursuant to the quality parameters
set in Exhibit 4 hereto.
SIXTH. FEES
The Customer will pay the following fees per ordered Port:
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(i) A single contracting charge per Port as listed on Exhibit
5 hereto (the "Contracting Charge"); and
(ii) The monthly rent resulting from multiplying the amounts
stated on Exhibit 5 hereto times the number of accepted Ports pursuant to the
Service Receipt Records; as concerns any Ports accepted any time within a month,
the Customer will only pay fees for the corresponding part of the month
involved.
SEVENTH. INVOICING
Uninet will invoice the Services from the Acceptance Date
onward. The Ports will be invoiced on a due monthly basis; each month will be
regarded as a calendar month.
The invoices will be sent to the Customer's address within ten
calendar days following the invoice month, and they must meet the requirements
set by the applicable laws. In the event that the respective invoices not
received within the aforesaid term, the Customer must so advise Uninet in
writing, on the understanding that the payment term will be extended for as long
as Uninet delays in filing the corresponding invoice.
Upon receipt of each invoice, the Customer may either:
(i) pay by wire transfer to the account reported for that
purpose by Uninet, the total amount of each invoice within twenty calendar days
following receipt of such invoice, or
(ii) advise Uninet in writing, within eighteen calendar days
following receipt of the corresponding invoice (the "Dispute Notice"), the
amount of the invoice that it disclaims and therefore is not willing to pay (the
"Disclaimed Amount"), in which case the Dispute Resolution Procedure set forth
in Exhibit 6 hereto will apply, on the understanding that the amount accepted by
the Customer (the "Accepted Amount") will be paid within twenty calendar days
following receipt from Uninet of a new invoice covering the Accepted Amount or
else a credit memorandum [NOTA DE CREDITO] for the Disclaimed Amount.
In the event that the Customer does not pay within the term
mentioned in paragraph (i) above or fails to pay the Accepted Amount within the
term stated in paragraph (ii) above, Uninet will send the Customer a notice
indicating that it is behind its payment obligation and that it must pay
forthwith.
In the event of any change in the information provided by the
Customer for invoicing purposes, the Customer must so advise Uninet thirty days
prior to the month in which such change is to become effective.
If due to causes imputable to the Customer Uninet must
re-invoice previously invoiced amounts, the Customer will pay the charge set in
Exhibit 5 hereto (the "Re-Invoicing Charge").
Any tax levied on the provision of the Services must be paid
by the Party upon whom the tax is levied, pursuant to the current laws.
EIGHTH. INTEREST
In the event that the Customer fails to pay on time any fees
hereunder, the Customer will pay upon demand, in addition to such fees, default
interest plus Value Added Tax ("VAT"), at a rate resulting from multiplying the
Interbank Balance Interest
5
Rate [TASA DE INTERES INTERBANCARIA DE EQUILIBRIO] (the "TIIE") as in effect on
the maturity date of the first unpaid invoice, times 1.7. Such default interest
will be computed from the date on which payment is defaulted, and will apply
throughout the time that said default remains in effect, and, if proper, before
and after payment of such unpaid invoice is sought through court, until payment
is made. The default interest will be computed on the basis of a 360-day year
and the number of calendar days actually lapsed.
The provisions of the preceding paragraph will not apply to
any amounts involved in the Dispute Resolution Procedure mentioned in Exhibit 6
hereto.
NINTH. SERVICE SUSPENSION
In the event that the Customer does not pay, within sixty
calendar days following the invoice date, any amount not involved in the Dispute
Resolution Procedure mentioned in Exhibit 6 hereto, Uninet will advise the
Customer in writing that it will suspend the Service (the "Suspension Notice"),
without liability and without a court order, if the Customer does not pay any
amounts owing by it within ten calendar days following receipt of such
Suspension Notice.
Uninet will effect the suspension on any Service-related
equipment, apparatuses, accessories and/or devices.
If the Customer's payment default is due to an act of God or
force majeure, the provisions of Clause Eighteenth hereof will apply.
If the Services are suspended and the Customer pays the
amounts owed, Uninet will reconnect the Services within forty eight hours
following the date on which the Customer proves that it paid.
TENTH. GUARANTIES
In the event that the Customer receives a Suspension Notice,
Uninet reserves the right to request the Customer, as a condition to keep on
providing the Services, to post a bond or any other sufficient guaranty for the
amount owed, within sixty calendar days following the date on which Uninet so
requests.
ELEVENTH. CANCELLATION, RELOCATION AND DISCONNECTION
The Customer may cancel one or more Ports from the Port
Request Acceptance Date to before the Delivery Date; if such cancellation is
carried out within the first seven calendar days following the Port Request
Acceptance Date, the cancellation will take place at no cost for the Customer;
if the cancellation is effected after the eighth calendar day following the Port
Request Acceptance Date and before the Delivery Date, the Customer must pay the
amounts listed on Table 1 of Exhibit 5 hereto (the "Cancellation Charge").
The Customer may request, thirty calendar days in advance, the
cancellation of Ports after the Delivery Date and up to the expiration date of
this Contract, and must pay the amounts stated on Table 1 of Exhibit 5 hereto
(the "Disconnection Charge").
6
The term "relocation" means moving Ports, in multiples of ten,
from one city to another (the "Relocation"). If the Customer requests the
Relocation of Ports, the Customer must pay the Relocation charges listed on
Table 1 of Exhibit 5 hereto. Any Ports whose Relocation is requested will be
disabled on the Relocated Port Acceptance Date.
TWELFTH. LIABILITY
Uninet will not be liable for the content of any information
that the Customer and/or its final users send, transmit, receive or consult
through the Services; Uninet is released from any liability in connection with
the foregoing.
As to any cases to which a specific penalty is not expressly
applicable pursuant to this Contract, the Parties agree that they may not be
paid a greater indemnification for damages than the payment of an amount equal
to the last two months of invoiced Services.
The Parties will not be liable for actual, consequential or
indirect damages, losses or unearned income due to the default of any of the
Parties' obligations hereunder.
Both Parties will always comply with any laws, regulations or
administrative and contract provisions applicable to the Services.
THIRTEENTH. CONFIDENTIALITY
The Parties will preserve and protect the confidentiality of
the Confidential Information (as defined hereinafter) and the media in which
such Confidential Information is contained, during the term of this Contract and
after its termination for any reason, for a two-year term. This confidentiality
obligation will apply to any confidential information disclosed by either Party
to the other and throughout the Contract term.
For the purposes of this Contract, Confidential Information
means any information which (a) is marked as "Confidential Information" and (b)
is not known to the public and is delivered by one Party to the other or
otherwise is received by either Party or to which the Parties may have access
before and throughout the Contract term, and which deals with the business,
finances, business plans, business opportunities, past, present or future
products, software, content or sources, research and development, enhancements,
inventions, designs and plans in connection with products, procedures,
techniques, designs or other technical information, source codes, services,
subscribers, staff, customer lists and any other unpublished information of the
Parties, their holding companies and affiliated companies.
In order for any information disclosed orally to be regarded
Confidential Information, the disclosing Party must send to the receiving Party,
within thirty calendar days following the discloser date, a document containing
a summary of such information.
7
The Parties further undertake (a) to disclose or distribute
the Confidential Information only to their employees or the employees of their
holding and affiliated companies that need to know the Confidential Information
in order to fulfill the Parties' obligations hereunder, and (b) not to retrieve
the Confidential Information from the other Party's facilities.
The Parties acknowledge and agree that no information will be
regarded Confidential Information which (a) is publicly known due to other than
the receiving Party's default; (b) was delivered to the receiving Party by a
third party under no confidentiality obligation; (c) was developed by the
receiving Party before executing this Contract, which must be proved with
documentary evidence; (d) was disclosed due to a court order, on the
understanding that the receiving Party will only disclose such information as it
must make known pursuant to such court order and that it will make all
reasonable efforts in order for the involved Confidential Information to be
afforded the confidential information treatment; (e) has been made known with
the disclosing Party's prior approval in writing; or (f) the Parties, their
holding and affiliated companies must disclose to the competent authorities,
including, by way of illustration and not by way of limitation, the U.S.
Securities and Exchange Commission, because they are under the obligation to do
so under the applicable laws or regulations.
In this last instance, the Party which is to disclose the
information must (i) advise the other Party at least seven business days prior
to such disclosure, (ii) exclude such portion of the Confidential Information as
the law or regulations permit, and (iii) request the authority demanding the
information that the Confidential Information delivered be treated as
confidential or be handled under the strictest confidentiality pursuant to the
applicable laws or regulations.
The following are Uninet's controlling and affiliated
companies: Telefonos de Mexico, S.A. de C.V., Telefonos del Noreste, S.A. de
C.V., and Consorcio Red Uno, S.A. de C.V.
The following are the Customer's holding and affiliated
companies: America Online Inc., America Online Latin America, Inc., Time Warner
Inc., Aspen Investments, LLC, Atlantis Investments, LLC, AOL Brasil, Ltda., AOL
Argentina, S.R.L., [and] America Online Caribbean Basin, Inc.
FOURTEENTH. LABOR LIABILITY
Uninet and the Customer are under the obligation of retaining
their own staff to pursue any activities hereunder; there will be no labor
relationship between the staff hired by Uninet and the staff hired by the
Customer; therefore, pursuant to Article 13 of the Federal Labor Law [LEY
FEDERAL DEL TRABAJO], the Parties, individually, will be the only liable parties
for and employers under any type of labor relationship arising in connection
with the Contract.
8
As a consequence of the foregoing, the Parties expressly
declare that there is no labor relationship between them as a result of the
execution of this Contract.
Therefore, both Uninet and the Customer are the only employers
of the workers retained by each to perform their duties hereunder, and either
Party will pay the wages, legal benefits, Mexican Institute of Social Security
[INSTITUTO MEXICANO DEL SEGURO SOCIAL--IMSS] dues, Institute of the National
Workers' Housing Fund [INSTITUTO DEL FONDO NACIONAL DE LA VIVIENDA PARA LOS
TRABAJADORES--INFONAVIT] dues, union dues, income tax, Retirement Savings System
[SAR] dues, and generally all taxes, duties and obligations arising out of their
relationship with the workers and other staff they retain to comply with this
Contract.
Each Party will hold the other free and safe from any lawsuit
or claim filed against the latter by the former's staff, and will reimburse the
defendant respondent for any amounts that it must pay as a result of such
lawsuit or claim, if neither Party cancels the cause of action within a maximum
term of fifteen calendar days following the date on which the respondent demands
payment [sic].
Uninet and the Customer agree that the only Party that may
terminate, suspend or rescind the labor relationship with any staff assigned to
perform any Contract services to be performed by either Party is the Party that
actually retains such staff.
FIFTEENTH. TERM
This Contract will be in effect from July 1st, 2003 to June
30th, 2005, and will expire on the agreed upon date without a court order (the
"Initial Term").
This Contract will be automatically renewed for an additional
one-year term unless the Customer advises [Uninet] in writing, at least sixty
calendar days prior to the expiration of the Initial Term, that it does not wish
to renew the same (the "Additional Term").
If the Customer wishes to terminate this Contract before the
expiration of the Initial or Additional Term, it must (i) so advise Uninet in
writing at least sixty calendar days prior to the date on which it wishes to
terminate the same, (ii) pay any outstanding amounts not involved in the Dispute
Resolution Procedure described in Exhibit 6 hereto, on the understanding that
any Disclaimed Amounts, if proper, will be paid as provided in said Exhibit 6,
and (iii) pay any Port Disconnection charges listed on Exhibit 5.
In the event that Uninet wishes to terminate this Contract
before the expiration of the Initial or Additional Term, it must (i) so advise
the Customer in writing at least 180 calendar days prior to the date on which it
wishes to terminate the Contract, and (ii) pay the Port Disconnection charges
listed on Exhibit 5.
9
SIXTEENTH. RESCISSION
This Contract may be rescinded without a court order or an
administrative order, pursuant to a written rescission notice, in any of the
following events:
a. If the Customer rescinds the Contract:
a.1 Due to Uninet's material default of any of its obligations
hereunder, material default being (i) if for two consecutive months 50% or more
of all of the Ports under contract have been the subject of a failure report and
such failure has not been remedied pursuant to Table 1 of Exhibit 4 hereto, (ii)
if for three consecutive months 30% or more of all Ports under contract are the
subject of a failure report and such failure has not been remedied pursuant to
Table 1 of Exhibit 4 hereto, or (iii) if twice during the Contract term Uninet
accepts a Port Request for 1000 Ports or more and fails to deliver them on the
Initial Delivery Date, the New Delivery Date or the Earlier Delivery Date, as
proper.
b. If Uninet rescinds the Contract:
b.1 If within twenty calendar days following receipt of the
Suspension Notice to which Clause Ninth hereof refers, the Customer has not paid
any outstanding amounts.
c. Either party may rescind this Contract:
c.1 If a final judgment is issued adjudging either Party
bankrupt or in business reorganization [CONCURSO mercantil].
c.2 If the other Party defaults any of its obligations
other than those mentioned in paragraphs a, b and c.1 which pursuant to this
Contract it must comply with, provided that said default has not been remedied
within thirty days following the affected Party's rescission notice date.
In any of the above events, any outstanding payment
obligations hereunder will remain in effect until fully paid.
SEVENTEENTH. SERVICE MIGRATION. In the event that the Customer
terminates or rescinds this Contract or upon expiration of the Contract term,
Uninet will keep on providing the Services for up to six (6) months more, under
the same terms and conditions, in order for the Customer to contract the
Services from another provider, on the understanding that the Customer must keep
on paying to Uninet the agreed upon fees until the Services are no longer
provided.
EIGHTEENTH. ACTS OF GODS OR FORCE MAJEURE
Neither Party will be liable and be subject to any penalty due
to its default of or delay in fulfilling its obligations hereunder, if such
default or delay is caused by an act of God or force majeure, in which case
fulfillment of such obligation will be stayed for as long as such act of God or
force majeure subsists.
10
As soon as possible, the Party affected by the act of God or
force majeure will report such act of God or force majeure to the other Party.
In the event that any act of God or force majeure extends for
over fifteen calendar days following its occurrence, the non-defaulting party
may terminate this Contract.
NINETEENTH. ASSIGNMENT OF RIGHTS
Both Parties agree that their rights and obligations hereunder
may be assigned to any of the holding and/or affiliated companies of the group
to which they belong, upon a fifteen-calendar-day advance written notice to the
other Party.
If the assignment is to be made to third parties, the assignee
must previously request the other Party's written authorization; such other
Party must respond, within fifteen calendar days following receipt of the
request, whether or not it authorizes such assignment. If the other Party does
not authorize the assignment, it must provide the reasons of its refusal in its
reply.
In any of the aforesaid cases, the assignor must be jointly
and unlimitedly liable to the other Party for each and all of the obligations so
assigned.
Uninet's holding and affiliated companies are all of the
affiliated and subsidiary companies of Telefonos de Mexico, S.A. de C.V.
The Customer's holding and affiliated companies are America
Online Inc., America Online Latin America, Inc., and all of their affiliated and
subsidiary companies.
TWENTIETH. NOTICES
Any notices by the Parties hereunder must be given by hand or
via registered mail return receipt requested, to the addresses and the persons
provided by the Parties under the Chapter of Representations hereof.
Any notices made at the address given by either Party will be
deemed validly made and will be fully effective from the moment that they are
made, and may be made at a different address only if the change of address was
previously reported to the other Party in writing at least fifteen calendar days
prior to the change of address effective date.
TWENTY FIRST. AMENDMENTS
Any amendment to this Contract must be in writing duly signed
by the Parties, with an indication of the amendment effective date; if no such
effective date is provided, the amendment will become effective on its execution
date.
TWENTY SECOND. CONTRACT ACKNOWLEDGMENT
The Parties expressly acknowledge that this Contract
constitutes their agreement in connection with the Contract purpose, and
therefore that it renders without effects any other negotiations, obligations or
communications between them, whether oral or in writing, conducted prior to the
date of this Contract, in connection with the Contract purpose.
11
TWENTY THIRD. EXHIBITS
The exhibits hereto, duly signed by the Parties, are an
integral part of this Contract and contain the Parties' rights and obligations,
fully acknowledged by the Parties.
TWENTY FOURTH. SURVIVAL
The provisions of Clauses 12, 13, 14, 18, 22 and 25 of this
Contract will remain in effect as to the Parties even after the Contract
termination, expiration or rescission. In addition, any obligation which
expressly or due to its nature must remain in effect after the Contract
termination, expiration or rescission, will survive and remain in full force and
effects between the Parties until the same is fulfilled.
TWENTY FIFTH. LAWS AND JURISDICTION
For everything regarding the construction, enforcement and
fulfillment of this Contract, the Parties submit to the applicable laws of the
Republic of Mexico and to the jurisdiction of the competent federal courts of
the City of Mexico, Federal District, and waive the jurisdiction of any other
courts to which they may be subject due to their present or future domiciles or
otherwise.
After reading this Contract, the Parties acknowledge its legal
force and consequences, and sign the same in duplicate at the bottom of this
page and at the margin [of each other page], in the City of Mexico, Federal
District, on March 1st, 2004.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- --------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Uninet Attorney in Fact Customer's Attorney in Fact
12
EXHIBIT 1
SERVICE DESCRIPTION
Uninet will provide the Services to the Customer based on the
"Internet Global Port" ("IGP") service, namely, in the access to Global Internet
through Uninet's network. The traffic that passes through the access link to the
Customer is merely authentication and accounting traffic; such link is optional.
This service uses the following components: NAS, United Network, International
Network, access link to the ISP, DNS and AAA.
The Service provided to the Customer uses the [**], [**] and
[**] protocols to set up communication with the AOL U.S.A. network; this
communication is set up based on the pre-authentication of Uninet's network
users (the pre-authentication methods are described on the table below), from
Uninet's access servers to AOL's servers, using Uninet's Internet Network and
the Global Internet; the Customer later on authenticates the final users on AOL
U.S.A.; therefore, for these services, the access link to the ISP mentioned in
any IGP modality is not necessary.
The responsibility for the Service offered by Uninet includes
Telmex' trunk lines which are connected to the Switched Access Servers, the
Switched Access Servers [sic], Uninet's Internet Network, including the
Backbone, the Operation Support Systems necessary for its operation and the
Troubleshooting, Report and Correction Service. The carrying of the information
through Global Internet is beyond Uninet's responsibility, although Uninet
undertakes to assign to such network at least [**] kbps to exit from Uninet's
Network, per each modem under contract.
The service that Uninet offers to the Customer starts at the
trunk lines that received the users' calls and ends at the Global Internet
access point that Uninet has with various providers. Uninet will assign at least
6.5kbps per port under contract in all the infrastructure.
Pre-authentication Method Value Associated Protocol
------------------------- ----- -------------------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
Pre-authentication Methods
For the [**] protocol-based service, Uninet provides the
Customer with IP transport and AAA servers for pre-validation of the "[**]" and
"[**]" realms, and assigns the attributes provided by the Customer's AAA systems
in the U.S.A. to start a [**] tunnel to the Customer's [**]. In the case of the
[**] protocol-based service, Uninet provides the Customer with the assignment of
the IP addresses, DNS service, IP transport to AOL's U.S.A. network and the
pre-validation of the "[**]" user. Finally, in connection with the [**]
protocol-based service, Uninet provides the Customer with IP transport to AOL's
U.S.A. network the attributes to open a [**] session to the Customer's
application servers and the pre-validation of the "[**]" user ["[**]"].
13
The accounting generate by the pre-authentication and the
service [sic: servers] session is stored by Uninet and is not sent to the
Customer. Based on this information, certain parameters (disconnection causes)
are generated to measure the service behavior; such parameters are classified as
follows:
Disconnection Causes Description
-------------------- -----------
Normal These causes reflect how often the services are used.
User These causes reflect the final user's behavior and
are not regarded as service failures.
Network These causes reflect likely problems in the service
operation.
AOL These causes reflect likely problems at Customer's
network.
Supported Standards
The following table lists the supported protocols for the
different service elements.
PGI
Element Supported Protocols
------- -------------------
NAS V90, V42, V42 bis and prior protocols, L2TP-RFC 2661
Uninet Network IP-RFC 791
ISP Access Links PPP-RFC 1661
AAA RADIUS, in fulfillment of RFC 2865 and 2866
Reports
The Customer must follow up on the Service behavior with the
following reports, generated based on the locations (cities) where the Services
are provided:
Report Type O Delivery Periodicity
------ --------------- -----------
Capacity utilization On Line N/A
Disconnection causes On Line Monthly
Connection speed On Line Monthly
14
EXHIBIT 2
DISCOUNTS
a. NON-DELIVERY OF PORTS
The Parties agreed that if Uninet fails to deliver the Ports
after the Grace Period mentioned in Clause Third of this Contract, Uninet will
discount the Customer the equivalent of one day's rent on delivery Ports for
each day of delay in the delivery of the Ports, up to a maximum of 30 calendar
days.
b. SERVICE QUALITY PARAMETERS DEFAULT
The Parties agree that the provisions of this paragraph will
apply from December 1st, 2003 onward.
Upon expiration of a 72-hour term after the filing of the
Customer's Failure Report pursuant to Exhibit 7 hereto, without Uninet
fulfilling the Service Levels set in Table 2 of Exhibit 4 hereto that apply for
discount purposes, Uninet will not charge the rent for any failing Port or
Ports, until the failure is fixed.
If 90 calendar days lapse without the failure being remedied,
the Customer may request the cancellation of Ports, in which case the charges
listed on Exhibit 5 hereto will not apply.
The collection of the monthly rent for the involved Port or
Ports will be resumed from the moment that the failure is fixed and the Customer
completes the Failure Report, pursuant to Exhibit 7 hereto.
c. FAILURE OF THE WHOLE SERVICE IN A CITY
If at any time after the Acceptance Date all of the Ports in a
city fail to receive the service during eight or more hours, Uninet will
discount the Customer the equivalent of one day's rent for any Ports which are
out of service, up to a maximum of 30 calendar days.
For the purposes of this paragraph, the Ports will be deemed
to be out of service if no Customer final user can connect to any of the
protocols listed on Exhibit 1 hereto, for reasons imputable to Uninet.
15
EXHIBIT 3
PORT DELIVERY; SERVICE TESTING AND ACCEPTANCE
a. Port Delivery
The parties agree that the following will be the Port delivery
procedure:
Uninet will deliver the IP address pool for the Service
activation, at least 14 calendar days prior to the Port delivery date.
The Parties agree that Uninet will make its best efforts,
without this limiting the Port delivery, to:
i. Deliver a continued address pool.
ii. Not change the addresses assigned to each equipment; in
the event of any changes, it will report such changes to the Customer.
iii. Deliver a single IP for each unit.
Upon delivering the Ports, Uninet and the Customer will make
sure that the Services meet the following checklist:
1. The equipments must have been configured pursuant to the
configuration documents of the services to be provided to the Customer.
2. Send the following information to the Customer on the new
location:
a. The local associated number.
b. The access service IP address.
c. The site-related IP address pool.
d. The number of trunk lines to be delivered.
e. The equipment "host" name.
3. Have the Customer's confirmation that the IP addresses for
the new equipment and the IP address pools have been entered on the Customer's
systems and are ready to operate.
4. [**] Connectivity. Make sure that it is possible to open a
tunnel to the Customer's [**] with the "[**]" command to each of the Customer's
[**]. An equivalent test is to make a call with the Windows dialer using any
user with the "[**]" realm (the Customer provides the chain to be used to make
the connection, for example, [**]), a session must be established but the
session will [**] due to the fact that, since the Customer's software session is
[**], the Customer's systems will terminate the session.
5. [**] Connectivity
a. Make a connection with the "Windows dialer".
b. Check the DNS assigned to the connection.
c. Check that the assigned DNS resolve [sic] and can be
navigated.
6. [**] Connectivity. Make a connection with the Windows
hyperterminal and check that there is connectivity to the [**]-based application
server. Upon establishing the connection, only the "[**]" message is received.
Once the items included in the above checklist are complied
with, the delivery of the Services will be regarded formalized, and thus the
Customer's Service testing stage will start.
16
The Parties agree that if Uninet does not deliver the Ports
within 30 calendar days following the expiration of the Grace Period, and
without prejudice of the discounts provided for in Exhibit 2 hereto, the
Customer will reserve the right to accept or reject such Ports without
liability, and therefore Uninet may not apply any penalty due to such
rejections.
The Customer reserves the right to accept partial delivery
under each Port Request.
b. Service Testing
Once Uninet delivers the Ports, the Customer will have a
maximum period of seven calendar days to test and accept the Service. If the
Customer does not report any Service failure within such term, the Services will
be deemed accepted pursuant to paragraph c) of this Exhibit.
The testing will be conducted pursuant to the following
checklist:
1. Making connection tests using the following protocols:
a. [**] with "[**]" and "[**]" realms.
b. [**] with "[**]" user.
c. [**] with "[**]" user.
d. The following are the connection testing characteristics:
I. No disconnections (the session must remain active at least
5 minutes).
II. Negotiation speed with the MODEM equal to or in excess of
38,600 kbps. Otherwise, the MODEM will be reviewed to make sure that it is
connected to another already operating city in order to check that the MODEM
allows a connection equal to or in excess of 38,600 kbps.
III. Availability of Internet navigation capacity.
2. In all protocols, make sure [VALIDAR] that access to
Internet services is available and check Internet navigation.
3. Make sure of the proper routing of the number by making
such calls as may be necessary to check the proper operation of each module.
4. Make sure that the following measurements are complied with
during the testing period with the minimum quality parameters to accept the
Service in:
a. Non-completed Traffic and Completion of calls.
b. Abnormal Disconnections measured by the Customer and
Uninet.
c. Connection try failures measured by the Customer and
Uninet.
Item 4 above will apply only if the Services are requested for
cities other than those listed on Exhibit 8 hereto or if the Service calls for
new routing [DIRECCIONAMIENTO] or new or additional equipment or if the required
Service needs more than 30 trunk lines.
17
5. Make sure that there are no outstanding failure reports in
connection with Table 2 of Exhibit 4, Quality Parameters.
If at the end of the testing stage the preceding checklist has
been fulfilled, the Services will be deemed to have been accepted and the
provisions of paragraph c) of this Exhibit will apply. Otherwise, the testing
stage will be extended until the items included in the above checklist have been
completed.
c. Service Acceptance
Upon the end of the testing stage, the Parties will draw up
and sign the "Service Receipt Record(s)," and Uninet will start invoicing the
Services from the acceptance date onward.
18
EXHIBIT 4
QUALITY PARAMETERS
These are the Quality Parameters offered by Uninet to the
Customer:
TABLE 1
These are the minimum values to be met in order for the
Customer to file a Failure Report pursuant to Exhibit 7.
Provided Minimum Value to File a
Measurement by Failure Report Remarks
----------- -------- ------------------------ -------
Uncompleted Traffic Customer [**] In cases where uncompleted traffic exceeds [**]% and call
completion is less than [**]%, but in which the KEKEN
system (or any other system defined by Uninet for this
measurement) reports that the maximum daily number of
users is equal to the number of available Ports
(regardless of the time) or shows an actual occupancy in
excess of or equal to [**]%, the Customer may not file a
Failure Report.
Call completion Uninet [**]
Abnormal Disconnections Customer [**] Over 100 sessions per IP
(Layer 7)
Abnormal Disconnections (*) Uninet [**] Over 100 sessions per IP
Failed connection tries Customer [**] Over 100 sessions per IP
Failed connection tries Uninet [**] Over 100 sessions per IP
(*) It only measures the following disconnection codes provided by Lucent's TNT
equipment: 753, 732, 731 and 65.
19
TABLE 2
The following are the Service Levels regarding which the
Customer must file a Failure Report pursuant to Exhibit 7 hereto and which will
cause that no rent be charged for the failing Port or Ports, pursuant to Exhibit
2.
Provided
Metrics by Service Levels Remarks
------- -------- -------------- -------
Uncompleted Traffic Customer > [**]% In cases where uncompleted traffic exceeds
This does apply in order [**]% and call completion is less than [**]%,
to compute discounts but in which the KEKEN system (or any other
pursuant to paragraph b system defined by Uninet for this measurement)
of Exhibit 2 reports that the maximum daily number of
users is equal to the number of available
Ports (regardless of the time) or shows an actual
occupancy in excess of or equal to [**]%, the Customer may
not file a Failure Report.
Call completion Uninet < [**]%
This does apply in order
to compute discounts
pursuant to paragraph b
of Exhibit 2
Abnormal Disconnections Customer >=[**]% Over 100 sessions per IP
(Layer 7) It does not apply for
the purposes of the
discounts pursuant to
paragraph b of Exhibit 2
Abnormal Disconnections Uninet >=[**]% Over 100 sessions per IP
(Layer 2) This does apply in order
to compute discounts
pursuant to paragraph b
of Exhibit 2
Failed connection tries Customer >=[**]% Over 100 sessions per IP
It does not apply for
the purposes of the
discounts pursuant to
paragraph b of Exhibit 2
Failed connection tries Uninet >=[**]% Over 100 sessions per IP
It does not apply for
the purposes of the
discounts pursuant to
paragraph b of Exhibit 2
Package Lost Uninet > [**]% ---
Availability Uninet < [**]% ---
Latency Uninet > [**] ms ---
The following are the parameters used to [measure] Uninet's
Internet Network performance:
Availability. The percentage of time in which the Uninet
Backbone may transmit and receive packages between points of reference.
Latency. The time that a package takes to travel the round
trip distance between two points of reference; this measure is stated in
milliseconds.
Package Lost. The number of packages transmitted between
points of reference, from which the corresponding response was not obtained.
As to the disconnection measured by Uninet, the disconnection
causes will be classified in four groups:
o Normal. The service exits properly. o User. Outgoing
service propitiated by the user.
o Network. Disconnection causes attributable to
Uninet's Network.
20
o AOL. Disconnection causes attributable to the
Customer. Uninet is not liable for the Final User's
behavior or for the Customer's network failures.
Points of Reference.
The points of reference to measure availability, latency and
package lost that will be used to make the measurements, are the POPs of
Uninet's network Backbone.
Measuring Method
The availability, latency and package lost are measured by
generating 100 byte ICMP packages, every five minutes between the network's
reference nodes. The value used to complete each of these parameters will be the
average of the total measurements generated between various points of reference
during this period.
The disconnection causes provided by Uninet will be measured
by making a statistical analysis of the Customer's service logbooks stored in
the AAA servers assigned to the service. The percentage per disconnection cause
per city will be obtained each month.
Disconnection Cause
Group (Code)
------ -------------------
NORMAL 45
USER 736, 185, 21, 11
NETWORK ▇▇▇, ▇▇▇, ▇▇▇, ▇▇
▇▇▇ ▇▇▇, 733
In the case of disconnection causes attributable to the
network, Uninet will have a monthly network group disconnection average of 2.5%
or less.
"Uncompleted Traffic" means the total percentage of reported
calls that received no answer from Uninet's modem, whether due to busy signal or
any other technical reason incidental to the Services provided, on the
understanding that the calls will be reported by the Customer's software
installed on the Customer's final user computers, which must be installed inside
the cities listed in Exhibit 8.
EXHIBIT 5
CHARGES AND RATES
Table 1
Description Amount
----------- ------
Contracting Charge Ps.[**]
Monthly Charge (monthly rent) Ps.[**]
Cancellation Charge Ps.[**]
Disconnection Charge during the first 12 months
Ps.[**]
Disconnection Charge during the last 12 months
Ps.[**]
Relocation Charge Ps.[**]
-------------
*These charges are stated in Mexican currency, do not include value added tax
and are charged per Port ordered.
Table 2
Description Amount
----------- ------
Re-invoicing Charge Ps.[**]
--------------
* These charges are stated in Mexican currency and do not include value added
tax.
21
EXHIBIT 6
DISPUTE RESOLUTION PROCEDURE
Pursuant to Clause Seventh, section (ii), the Customer must
state on its Dispute Notice the Disclaimed Amount, the Accepted Amount and the
reason why it does not accept to pay the Disclaimed Amount.
Within seven calendar days following the date on which Uninet
receives the Dispute Notice, Uninet's Commercial Director and the Customer's
Operations Director will attempt to resolve the dispute; if they fail to do so,
they will submit the dispute to either Party's Chief Executive Officer, who will
have a 30-calendar-day term to determine whether or not the Disclaimed Amount
should be paid.
In the event that the dispute remains unresolved, the
provisions of Clause Twenty Fifth will apply.
If as a result of the above procedure it is determined that
the collection of the Disclaimed Amount was improper, Uninet will issue a credit
memorandum for said Disclaimed Amount, if it has not issued the same previously.
The Parties agree that the Dispute Resolution Procedure will
last from the delivery of the Dispute Notice to Uninet to the date on which it
is resolved whether or not the Disclaimed Amount must be paid.
22
EXHIBIT 7
TROUBLESHOOTING PROCESS
Description:
The troubleshooting process defines the flow of the reports
generated by the ISP to Uninet, from the filing, follow-up and completion of
such reports. Therefore, each step will be shown in detail as well as the
process follow-up policies, in order to have a total report control.
Case Filing:
Every failure reported by the ISP will be regarded as a
reactive case; the case will be filed to the technical assistance center (the
"TAC") (telephones 56244444 or 01800-0077700), where a Uninet case number will
be assigned. The report will be forwarded to the Internet Operations Center (the
"IOC").
Information Necessary to File a Case:
o Corporate name.
o Name of person reporting.
o Telephone number of the person reporting.
o Failure type (no connection, slowness, etc.).
o City where the failure takes place.
o Telephone number in which the failure takes place and/or
IP address.
Filing Criteria:
The Customer may file Service reports when the Service does
not meet any of the checklist items included in Exhibit 3 or if there is a
Service failure.
o No connection.
o Disconnections.
o No connection to specific protocols ([**]/[**]/[**]/"[**]").
o No navigation.
in order to open Failure Reports due to Quality Parameter [failure], the Quality
Parameter values must be worse than those stated in Exhibit 4 hereto.
Reactive Case Follow-Up:
If the failure is detected in the physical transmission
medium, the IOC will file a report with the Operator Attention Center (the
"OAC") to solve the problem. If the failure takes place in Uninet's network, the
IOC will follow up on the failure until it is remedied. It will provide
updatings each hour, upon the ISP request, unless the solution is to take place
within a defined time span.
In the event of serious failures affecting at least [**]% of
the network or of users at peak hours (from [**] o'clock p.m. to [**] o'clock
p.m.) or [**]% of the network or users during non-peak hours, a Failure Report
will be filed.
23
Reactive Case Completion:
Once the failure has been remedied, the IOC will keep monitors
in operation for one hour; if no further failure takes place, the report will be
completed and the responsible ISP operator will be advised of the completion, as
well as the case number and the completion date.
If a certain corrective action is applied and the failure
cause is known, the report is kept open for one hour and the completion is
validated [VALIDA] with the Customer.
If the Services are resumed without any corrective action, at
least to Uninet's knowledge, the Service is monitored 12 hours.
If a Report is completed and the same failure remains, the
Report will be reopened keeping the same [case] number and the original report
date, for the following time:
o Uncompleted Traffic: 72 hours.
o Abnormal disconnections: 48 hours.
o Connection Failures: 48 hours.
o General Breakdowns: 2 hours.
o [**] Failures: 2 hours.
o Connectivity ([**]/[**]/L2[**]/[**]): 2 hours.
o Blockings: 24 hours.
24
Reactive Report Flow Chart:
The ISP reports the
failure to Uninet's TAC.
The TAC files said report
and dispatches the case
to the IOC.
The IOC checks the
service and disgnoses
the failure
Give Uninet No
Status Failure
Yes
TX Medium Uninet
Network
OAC report is The IOC cheks
filed Uninet's Network
No
Failure
solved? Yes IOC reports and The report is
validates the completed
closing of the ISP
Troubleshooting policies:
1. The ISP must be responsible for properly screening any
cases reported to Uninet.
2. The ISP must specify the type of failure report; based on
the service design, Uninet will only check the connection or disconnection
problems or Uncompleted Traffic problems.
3. Only reports with at least four users reporting the same
failure in the same node will be accepted, which will indicate a possible
problem on Uninet's network.
4. Once the failure has been remedied, the report will remain
open during the agreed upon time based on the characteristics of the above
described failure.
Note:
Connection problems are those unrelated to the user's line and
equipment and to the ISP servers and take place from the moment that the user
dials for connection and until validated [VALIDO] by the ISP. Disconnection
problems are those that take place when the users, upon being validated
[VALIDADOS] by the ISP, are unable to keep the connection due to causes
unrelated to their lines or equipment or to the ISP servers.
25
EXHIBIT 8
LIST OF ACCEPTED PORTS
City Ports
---- -----
Acapulco [**]
Aguascalientes [**]
Campeche [**]
Cancun [**]
▇▇▇▇▇▇ [**]
Ciudad de Mexico [**]
Ciudad del ▇▇▇▇▇▇ [**]
Ciudad ▇▇▇▇▇▇ [**]
Ciudad ▇▇▇▇▇▇▇ [**]
Ciudad ▇▇▇▇▇▇ [**]
Cordoba [**]
Cuautla [**]
Cuernavaca [**]
Culiacan [**]
Chihuahua [**]
Durango [**]
GAN (800 number) [**]
Guadalajara [**]
Guanajuato [**]
▇▇▇▇▇▇▇▇▇▇ [**]
Irapuato [**]
Jalapa [**]
▇▇▇▇ [**]
Matamoros [**]
Mazatlan [**]
Merida [**]
Mexicali [**]
Monterrey [**]
Morelia [**]
Nuevo Laredo [**]
Oaxaca [**]
Ocotlan [**]
Orizaba [**]
Pachuca [**]
Poza Rica [**]
Puebla [**]
Puerto Vallarta [**]
Queretaro [**]
Reynosa [**]
Saltillo [**]
San ▇▇▇▇▇▇ Tuxtla [**]
San ▇▇▇▇ Potosi [**]
Tampico [**]
Tehuacan [**]
Tepatitlan [**]
Tepic [**]
Texcoco [**]
Tijuana [**]
Tlaxcala [**]
Toluca [**]
Torreon [**]
Tula [**]
Tulancingo [**]
Tuxtla ▇▇▇▇▇▇▇▇▇ [**]
Veracruz [**]
Villahermosa [**]
Zacatecas [**]
-----
TOTAL [**]
=====