Exhibit 10.4
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.
GENERAL AGREEMENT
AGREEMENT No. CO/TELEMAR/UNA-SIP/00NN-2003.
AGREEMENT FOR THE SUPPLYING OF COMMUTED FIXED TELEPHONE SERVICE AND OTHER
TELECOMMUNICATIONS SERVICES AND INTERNET/ IP SERVICES, ENTERED INTO BY AOL DO
BRASIL LTDA AND TELEMAR NORTE LESTE S.A.
THE PARTIES:
These are the Parties to the present agreement:
CONTRACTING PARTY: AOL DO BRASIL ▇▇▇▇, with its main place of business at
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ - ▇. ▇▇▇▇▇, in the town of ▇▇▇▇▇ ▇▇▇▇▇, State of Sao
Paulo, enrolled in the National Registry for Legal Entities (CNPJ/MF) under
n. 03.032.579/0001-62, hereinafter simply called CONTRACTING PARTY, in this
act represented pursuant to its Articles of Association, and
CONTRACTED PARTY: TELEMAR NORTE LESTE S.A., a publicly-held corporation,
with its main place of business in the city of Rio de Janeiro, State of Rio
de Janeiro, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ - 5. floor, Bairro Botafogo,
enrolled in the National Registry for Legal Entities (CNPJ/MF) under n.
33.000.118/0001-79, hereinafter simply called CONTRACTED PARTY, in this act
represented pursuant to its Articles of Association.
They are also called individually a Party and when jointly, the Parties.
1. FIRST CLAUSE - THE OBJECT.
1.1. The present agreement ("Agreement") has as its object the supply, by
the Contracted Party to the Contracting Party, of the Commuted Fixed
Telephone Service, other Telecommunications Services and Internet/ IP
Services, provided that they are expressly specified in Addendums (and
their respective Exhibits), being each Product or Service the object of its
own Addendum.
1.2. The term "Addendums" (which include their respective Exhibits) and
"Requests for Services" integrate the present Agreement, as if its clauses
were herein written, being identified by numerations linked to the number
hereof, as well as signed by the same Parties, through their
representatives of the same hierarchical level or through
attorneys-in-fact, thus, making effective the rendering of the services
mentioned in item 1.1. above, in strict compliance with the rules in force,
including regarding the performing area.
2. SECOND CLAUSE - REFERENCE RULES AND APPLICABLE DOCUMENTS
i. Depending on the case, the instruments and rules mentioned
hereinbelow constitute reference to the Agreement, which are fully
acknowledged by the Parties, that is: Law n degrees 9.472 of July 16,
1997. which sets forth the organization of the telecommunications
services, the creation and the operation of the body which regulates
the services and other institutional aspects, pursuant to
Constitutional Amendment n. 8 of 1995.
ii. Regulation of the Commuted Fixed Telephone Service approved by
Resolution 85/98, of December 30, 1998, of the National Agency of
Telecommunications -ANATEL.
iii. Furthermore, the applicable laws and regulations, besides the
other acts arisen from the authorized public powers and from the
National Agency of Telecommunications -ANATEL, which regulate or may
eventually regulate the object of the present Agreement.
3. THIRD CLAUSE - VALIDITY
3.1. This Agreement shall be always in force and whenever there is an
Addendum in force or a Request for Service underway, aiming at serving the
interest of the Parties.
4. FOURTH CLAUSE - CONTRACTED PARTY'S DUTIES.
Besides the duties set forth in the Addendums and in the Requests for Services
contained in this Agreement, the Contracted Party commits to:
4.1. Perform inspection of the internal networks of the Contracting Party's
facilities to be carried out through the services stated in the Addendums,
whenever necessary, as well as in the facilities of the internal reserved
areas for the installation of the transmission or commuting equipment,
formally accepting the existing facilities through the Acceptance Term or
timely guiding the need for their re-structuring.
4.2. Perform or appoint a sub-hired company, under its entire
responsibility, for the installation of an entry cable of the external
network up to the general switchboard of the building, whenever necessary,
so as to activate the services comprehended in the Addendums, without any
liens to the Contracting Party.
4.3. Install and test, on its own account or through a company sub-hired by
it, under its entire responsibility, the equipment, object of each
Addendum, in the Contracting Party's facilities, which are necessary for
the services implementation, with no burden to the Contracting Party, being
utterly forbidden the interference of third parties, at any title and in
any situation, without the Contracted Party's previous express consent.
4.4. Supply, install, configure and keep updated, at its own exclusive
expenses, all the equipment and components, object of each Addendum. The
Contracted Party shall always acquire from suppliers of good standing in
the telecommunications market and which are holders of advanced technology,
equipment and components which meet the necessary technical features, duly
certified by ANATEL, in sufficient amount to serve the Contracting Party.
4.4.1. Notwithstanding the aforementioned, the introduction of new
technologies which call for new equipment, systems and/or
re-configuration of the equipment by the Contracted Party and which
imply changes in the Contracting Party's network or in the products
and/or systems in use by the Contracting Party, shall depend on the
Contracting Party's prior written agreement, except for the cases of
maintenance. For such, the Contracted Party undertakes to inform the
Contracting Party, in writing, with at least sixty (60) days in
advance, about any utilization of equipment or configurations which
imply changes in the Contracting Party's network and/or its systems
and protocols, as aforementioned.
4.5. Receive requests for repairs twenty-four (24) hours per day, seven (7)
days per week, being the terms and conditions of the respective Addendums
complied with.
4.6. Perform preventive and corrective maintenance in the
telecommunications systems of its ownership, necessary for the operation of
the services rendered to the Contracting Party, in the terms specified in
each Addendum.
4.7. Be liable for damages or losses caused by its employees or
representatives under its orders in the Contracting Party's installations,
reimbursing amounts spent for their mending, which are duly evidenced.
4.8. Perform the activation of the services contained in the Addendums,
within the term mentioned in the respective Addendum. Whenever problems
occur, which make impossible the activation or the supply of the services
contained in the Addendums and which give rise to the discontinuance or the
unavailability of the full use of such services by the Contracting Party,
the Contracted Party shall have to solve such problems in
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the maximum term set forth in the respective Addendums, so as to guarantee
the availability and quality standards, being subject to the penalties
therein determined in case of non-compliance with the said term.
4.9. Provide the Contracting Party with the specifications related to the
infra-structure to be made available in its facilities, which are needed
for the implantation of the services, object of this Agreement and its
Addendums.
4.10. Guarantee the services levels specified in the descriptions of each
services provided, being the specifications, the criteria and the quality
and availability parameters described in the Addendums, complied with.
4.11. Execute the services provided in the Addendums, in accordance with
provisions of the respective Addendum and its Exhibits.
4.12. Not to transfer to third parties the rights and duties provided in
this Agreement, its Addendums and their respective Exhibits, without the
Contracting Party's previous written consent, except to its controlled
companies or to companies which are under the same control of the
Contracted Party, in which case this shall be notified with thirty (30)
days in advance.
4.12.1. Any transference to Contracting Party's Competitor, as defined
in 10.4.2 hereinbelow, requires the Contracting Party's express
previous written approval.
4.13. The Contracted Party shall guarantee isonomic non-discriminatory
treatment to the Contracting Party related to any client of the Contracted
Party in whatever refers to this Agreement and all its Addendums.
4.14. The Contracted Party agrees to provide the services set forth in each
one of the Addendums quickly and carefully, complying with the professional
standards used by the telecommunications market, and which offer similar
services to the ones set forth in the respective Addendums. The Contracted
Party guarantees that it shall make use of an adequate number of duly
qualified professionals in order to provide each and all hired services
pursuant to the present Agreement.
4.15. Should the Contracted Party or its Affiliates come to offer or
provide any services that are not provided in this instrument and in its
Addendums, than the Contracted Party agrees to offer to the Contracting
Party such services at prices, terms and conditions which are isonomic with
the applicable to such a client and, except for good faith negotiations
between the Parties related to eventual adjustments in such terms and
conditions.
5. FIFTH CLAUSE - CONTRACTING PARTY'S DUTIES
Besides the duties set forth in the Addendums and in the Requests for Services
contained in this Agreement, the Contracting Party undertakes:
5.1. Not to transfer to third parties the rights and duties arising from
this Agreement, its Addendums and their respective Exhibits, without the
Contracted Party's previous written consent, except to its controlled
companies or to companies which are under the same control of the
Contracted Party, in which case this shall be notified with thirty (30)
days in advance.
5.1.1. Any transference to Contracted Party's Competitor, as defined
in 10.4.1 hereinbelow, requires the Contracted Party's express
prior written approval.
5.2. Whenever necessary, so as to cope with the services provided in the
Addendums, make available to the Contracted Party, free of charge, the
requested space in its facilities for the installation of equipment and
tools required for the rendering of service.
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5.3. Whenever necessary, so as to cope with the services provided in the
Addendums, at its own expenses, perform the necessary infra-structure work
for the installation of equipment in its facilities, within a previously
agreed term and according to applicable technical rules, being responsible
for the execution of civil and electric project, as well as for the
correction of the non-conformities identified by the Contracted Party.
5.4. In order to comply with the services provided in the Addendums, to
install electric protection in its equipment, as well as its grounding,
whenever this is so determined.
5.5. If necessary, in order to comply with the services hired in the
Addendums, promptly correct irregularities in the infrastructure work
identified by the Contracted Party, so as to adequate them to the
applicable technical rules.
5.6. If necessary, in order to comply with the services provided in the
Addendums, submit necessary alterations in the infrastructure to the
Contracted Party, so that the latter can carry out analysis and subsequent
correction, in case the Contracting Party, in the course of preparation of
infra-structure and internal net needs to modify the original design agreed
upon
5.7. To inform the Contracted Party the conclusion of any work, if it is
completed prior to its term, in order to enable its acceptance and, if
possible, to proceed with the equipment installation, before the date
previously agreed upon.
5.8. To complete infra-structure works within the term set forth by the
Parties, in accordance with the provisions of the Addendum, or within an
additional (15) fifteen-day term, being forthwith set forth that, in the
hypothesis that the Contracting Party fails to finish the requested work
within the aforementioned terms, than the Contracted Party is authorized to
perform the commercial activation of the services, within the terms
provided in the Addendum, with the consequent immediate charge of the
monthly price due, being the Contracting Party enable for ratifying with
the Contracted Party the effective date of physical installation of the
infra-structure and necessary electrical protection for the rendering of
the service.
5.9. To allow the access of the Contracted Party's authorized employees or
of the authorized sub-hired companies, which are under its full
responsibility, to its facilities to perform maintenance and inspection of
the equipment, provided that this has been previously expressly authorized,
in writing, by the Contracting Party.
5.10. To keep and preserve the equipment provided in the Requests for
Services, owned by the Contracted Party, and which are under the
Contracting Party's power, provided that the delivery of such equipment is
performed together a letter duly protocolled and in which the equipment
delivered to the Contracting Party is fully described, being it kept in
adequate environment and in adequate technical conditions, as specified by
the manufacturer and by the Contracted Party, including all the necessary
energy and acclimatization infra-structure for its operation.
5.11. To be responsible for damages and losses caused to the equipment
mentioned in item 5.10 above, thief caused by Contracting Party's evidenced
fault or malice, being it obliged to reimburse its Contracted Party updated
value, in the cases of loss, misplacement, damage or destruction of such
equipment, including partial.
5.12. To forthwith inform the Contracted Party any the occurrence of
accident, under the penalty of being made liable for the damages arisen
from it.
▇.▇▇.▇▇ authorize the Contracted Party to withdraw equipment and tools
owned by the Contracted Party and which are kept by the Contracting Party
and listed in the respective Requests for Services, under the same
conditions it has received them, except for natural wearing, upon end of
their validity term, or in case of the
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respective Addendum or Agreement termination, within the maximum term of
three (3) weekdays, from their termination dates.
▇.▇▇.▇▇ formally inform the Contracted Party, in case of supervening need
of transference, reduction or movement of the object of this Agreement, so
that necessary measures can be taken.
5.15. To use the services, object of this Agreement, for the purposes set
forth in its Articles of Association, making use of the means made
available by the Contracted Party exclusively pursuant authorized
configuration, being expressly prohibited the sublease or assignment to
third parties, at any title, of means or services, object of this
Agreement, exception made to provision to the item 5.1 hereinbefore.
5.16. To defend and enforce the Contracted Party's ownership rights over
the object of this Agreement, forthwith notifying it about any violation or
attempted violation by third parties, that it may eventually know about.
5.17. The Contracting Party has full knowledge that the services can be
eventually affected or temporarily discontinued due to technical reasons,
by virtue of repairs, maintenance or equipment exchange, which does not
exempt the Contracted Party from complying with the procedures agreed upon
the present Agreement and in its Addendums.
5.18. To keep the Contracted Party's file updated, informing eventual
alterations of address, corporate name and enrollment in the National
Registry for Legal Entities (CNPJ/MF) and other local and state equivalent
bodies.
5.19. The Contracting Party is solely responsible for the content of the
information conveyed in its hired access and for the conditions of service
provided to third parties.
6, SIXTH CLAUSE - FEES AND PRICES
6.1. The fees for the rendering of Commuted Fixed Telephone Service are
prerogative of the Assignor Power, through its authorized bodies.
6.2. The values corresponding to hired services are specified in the
respective Addendums to this Agreement.
6.3. Eventual services requested by the Contracting Party to the Contracted
Party which have not been determined in the respective Addendums shall be
previously negotiated by the Parties.
6.4. The prices set forth in the Addendums are gross prices, being already
therein included all the Taxes the Contracted Party is responsible for
collecting.
6.4.1. In case of modification in the tax legislation in force,
including cases of institution of new tax assessment or the alteration
of the levying rules (whether alteration on the calculation basis or
of applicable percentages) which impact in the tax burden on the
services specified in the respective Addendums (either increase or
decrease), the respective prices shall be automatically increased or
reduced so as to reflect the said legislation modification. The
payments effected by the Contracting Party to the Contracted Party
shall be effected with no tax retention, except for those which are
mandatory by law, and due by the Contracted Party.
6.5. The fees for providing the Commuted Fixed Telephone Services shall be
re-adjusted up to the higher percentage approved for the telecommunication
fees, being it automatically/immediately applied by the time of such tax
adjustment.
6.6. The values of the services listed in the Addendums shall be readjusted
each (12) twelve-month period, as of the execution date of this Agreement,
by applying the IGP-DI [National Index of Prices- Internal Availability]
variation for the period - as calculated by the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation,
with no prejudice to
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the application of a lower variation, pursuant with the agreement by the
Parties. In case such index is extinguished, the official index that may
eventually replace it shall be applied.
7. SEVENTH CLAUSE - PAYMENT AND SANCTIONS DUE TO LACK OF PAYMENT.
7.1. The Contracting Party shall effect unchallenged monthly payments to
the Contracted Party on the twenty-fifth (25th) day of the second month
subsequent to the month in which the service is provided, provided the
respective collection document is received by the Contracting Party within
(30) thirty days prior to its maturity, through the presentation of a
fiscal document and/or invoice/service statement.
7.1.1. In case there is no banking in the Capital of the State of Sao
Paulo on the date established for the payment, such payment shall be
effected on the first subsequent weekday.
7.1.2. The payment of disputed charges by the Contracting Party shall
be due to the Contracted Party upon evidence of the availability of
such services.
7.2. The discussion with respect to any disputed amount shall be made in
writing, including through long distance communication (such as e-mail or
mailing).
7.2.1. The Contracting Party has a (120) one- hundred-and-twenty-day
term, counted as of the receipt of the first collection document, to
notify the Contracted Party with respect to any disputed amount
7.2.2. The eventual reimbursement of the amounts unduly charged must
occur within thirty (30) days after the notification related to such
disputed amounts, preferably though credit in benefit of the
Contracting Party contained in collection document regarding services
rendered, with addition of the same amounts applied by the Contracted
Party in case of late payment.
7.2.3. The notification by the Contracting Party regarding disputed
amounts, if presented prior to the respective maturity, suspends the
payment term, until it is notified of the Contracted Party's decision,
being the (30) thirty-day term assured, counted as of the decision
date.
7.2.4. In case the Contracting Party challenge the due amounts
partially, the payment of the challenged amount shall be suspended and
the remaining amounts shall be duly paid.
7.2.5. In case the challenge is effected after the due date, in case
the Contracted Party has effected the respective payment, than it
shall be entitled to be refunded, with addition of the respective
charges and in the terms agreed upon, in case such challenge is valid.
7.2.6. The Contracting Party shall pay the amounts contained in the
respective collection document presented by the Contracted Party,
deducing the disputed amounts.
7.3. Except for what has been set forth in Clauses 7.2.3. and 7.2.4.
hereinbefore, the Contracted Party can suspend the providing of services to
the Contracting Party in case the latter does not honor the payment of the
debit, after a (30) thirty-day default.
7.3.1. Notwithstanding the foregoing, the debit that features the
Contracting Party's default shall be incorporated to the subsequent
collection document.
7.3.2. The Contracting Party will consider as having been notified of
its default through the mere maturity of the respective ▇▇▇▇, so that
such default, at its end, will legally constitute defaulting turn of
the debtor.
7.3.3 The Contracted Party, within a minimum period of thirty (30)
days subsequent to the suspension of the service, the Contracting
Party remaining in default, can (i) totally suspend the rendering of
the service and (ii) terminate this agreement.
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7.4. Notwithstanding the aforementioned, the absence of payment, on its
maturity, implies in the payment by the Contracting Party of the following
sanctions:
7.4.1. A 2% penalty or the maximum percentage allowed by the
applicable legislation, applied over the total amount of the unpaid
debit, on the day subsequent to the maturity.
7.4.2. Interest a rate of 1% per month (or fraction of the month) or
the maximum percentage allowed by the legislation in force, counted
from the first (1st) day subsequent to the maturity and applied over
the total unpaid amount.
7.4.3. Debit updating until the date of the effective payment,
pursuant to the IGP-DI [National Index of Prices- Internal
Availability] variation, calculated by the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation
or to the index that may officially replace it.
7.4.4. The penalties set forth in this item shall be included in the
subsequent collection document.
7.5 The deposit slips in favor of the Contracted Party shall be considered
valid documents for the evidencing of the receipt of the payments due by
the Contracting Party. When the payment is effected through banking
deposit, the Contracting Party will forward a copy of the deposit slip to
the Contracted Party upon Telemar's request.
7.6 The parties shall use best efforts in order to help up the other party
to minimize tax impacts, according to applicable legislation.
8. EIGHTH CLAUSE - REVISION OF PRICES AND THE RIGHT OF FIRST REFUSAL
8.1. At each (12) twelve-month period, counted as of the execution date of
this Agreement, or at any time as of December 31, 2005 or, yet, in case it
is agreed upon between the Parties, in a lesser period, the Contracting
Party may request that the Contracted Party revises the agreed prices for
service providing, object of the present Agreement and/or of any of its
Addendums, according to the following terms:
8.1.1. The Contracting Party shall send written notice to the
Contracted Party and, thereon, within one month, the Contracted Party
must present at least two different proposals (being the
determinations of item 8.2 below complied with) regarding the same
services, provided in the respective Addendum, for a term equal to the
remaining ones in the respective Addendum.
8.1.2. The above proposal(s) shall be delivered to the Contracted
Party in writing and with a receipt notice.
8.1.3. The Contracted Party shall only consider proposal that (i)
issued by a third party with legal, technical and financial good
standing, and (ii) evidences a firm proposal in good faith.
8.1.4. In case the average prices contained in the received proposals
(or the prices of the single proposal received pursuant to the terms
of item 8.2) equal or are inferior to ninety-five per cent (95%) of
the price whose revision is being requested, than the price of the
Addendum in question shall be reduced by the Contracted Party to the
lower price presented in the proposal(s), effective as from the month
in which such proposal would be applicable. In case the Contracted
Party fails to present express acceptance for the price reduction
above, within a (10) ten-weekday term counted as of the receipt of the
proposals by the Contracted Party, the Contracting Party shall be
entitled to legally terminate the respective Addendum, with no burden,
through written notification to the Contracted Party and hire the
offer or which has presented the best price.
8.1.5. For effects of comparison, the final price for the Contracting
Party will be taken into consideration, including the taxes and
contributions.
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8.2. For the purposes of item 8,1,4, the Contracting Party can present just
one proposal in case: (a) it has evidently requested proposal from at least
four (4) similar companies, in case they exist, but all, except one have
refused to present a proposal; or (b) there exists only one company capable
of rendering the same service.
9. NINTH CLAUSE - IMPLANTATION TIME SCHEDULE
9.1. The Contracted Party acknowledges that the compliance with the terms
determined in the Implantation Time Schedule and/or in the respective
Addendums is fundamental for the efficient execution of the services,
provided in the present Agreement and its Addendums.
9.1.1. In case of non-compliance of the terms set forth in the
Implantation Time Schedule, or in any of the Addendum, the Contracted
Party shall be subject to the penalties set forth in the Addendum(s).
9.2. The Contracting Party expressly acknowledges that the terms set forth
in the Implantation Time Schedule annexed to the Addendums on in each of
the Addendums have been agreed upon by the Parties and also result from the
Contracted Party's need to program its availability regarding the supply of
infrastructure and services, object of the specific Addendums entered into
between the Parties.
10. TENTH CLAUSE - TERMINATION
10.1. The current Agreement can be terminated, with no additional burdens,
independently of any procedures or judicial or extra-judicial written
notification, and simply through written notice to the other Party, in the
following situations:
10.1.1. Any of the Parties fails to comply with the duties set forth
in this instrument and in the Addendums, fault and such is not
corrected within sixty (60) days after such written notification of
the other Party;
10.1.2. Declaration of bankruptcy, CONCORDATA or dissolution
(including judicial or extra-judicial liquidation) of any of the
Parties;
10.1.3. By mutual agreement, or by the imposition of legal or
normative orders;
10.1.4. Transference or assignment of rights and/or duties, in the
whole or in part, related to the current Agreement and its Addendums,
without previous approval of the other Party;
10.1.5. Suspension or repeal of authorization granted by the
authorized Public Power regarding the rendering of services set forth
in the Addendums;
10.2. The termination of the present Agreement shall imply the automatic
termination of Addendums hereto, entered into by the Parties.
10.3. The termination of any of the Addendums, according to provisions of
such Addendums, shall not affect the validity of this Agreement and the
other addendums in force.
10.4. In the hypotheses listed hereinbelow, any of the Parties can, at its
sole discretion, terminate this Agreement through a notification of thirty
(30) days in advance to the other Party ("the Adverse Party"), being
ascertained there will be no demand for any indemnifications, fines and/or
penalties set forth in this Agreement and in its Addendums:
(i) change in the control of the Adverse Party, where the control is
directly or indirectly acquired in a single transaction or in a
series of correlated transactions by a Competing Entity of the
Party,
or
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(ii) total or partial merger of the Adverse Party's assets with a
Competing Entity of the Party (including a merger that gives rise
to the formation of a new entity).
10.4.1. It is understood that Contracted Party's "Competitor" is a
company whose significant part of its businesses is the rendering of
telecommunications services.
10.4.2. It is understood that Contracting Party's "Competitor" is (i)
a legal entity which obtains revenues by providing dialed access
services to the Internet or that has, pursuant to its corporate
documents, as its social purpose the rendering of dialed access
services to the Internet or (ii) a legal entity which obtains revenues
by providing broad band access services to the Internet or that has as
its social purpose the rendering of broad band services to the
Internet, exception made, in this case, to the telecommunications
companies. Competing Entity should not be understood as controlled,
colligate or controlling legal entities of the companies that provide
access services to the Internet.
11. ELEVENTH CLAUSE - MISCELLANEOUS
11.1. When the Contracting Party detects the need for change in the
configuration of the services agreed upon, due to its own needs, it agrees
to request the aforementioned adaptation to the Contracted Party, which
shall perform it, provided that there are technical availabilities at the
time, being the Contracting Party responsible for all the expenses
therefrom, pursuant to the provisions of the Addendums.
11.2. Exclusively with respect to the provisions of item 7.3 of Normative
Rule n degrees 11/95 of the Communications Ministry, the Contracted Party
has the right to replace the equipment of its ownership or legal
possession, as well as the means of access, whenever it is convenient or
necessary for providing the services contained in the Addendums, or for the
preservation and improvement of its technical quality, provided by previous
notice to the Contracting Party, and without any costs for the Contracting
Party, being guaranteed the regular rendering of services, object of this
Addendum.
11.3. The contact between the Contracted Party and the Contracting Party
shall be performed in writing, except for the oral understandings arisen
from emergencies, which shall be confirmed within a (5) five-weekday term.
11.4. The Addendums can be subscribed by the Parties' legal representatives
or attorneys-in-fact, regularly constituted.
11.5. In case the Contracting Party fails to make available to the
Contracted Party any equipment owned by the Contracted Party within thirty
(30) days subsequent to the termination of this Agreement, it is forthwith
authorized to take the relevant legal proceedings so as to determine search
and seizure actions of said equipment or charge market values, of that
time, for such equipment, effecting the respective protest and execution,
if necessary.
11.6. Notwithstanding provisions contained in Clause 11.7 below, none of
the Parties shall be liable for loss and damages, particularly incidental,
indirect damages and loss of profit, and it shall not indemnify the other
Party's for its commercial drawbacks and for the complains of third
parties or of its clients, arisen from failures occurred during operations
under the other Party's responsibility, except for the cases of direct
damages or in cases in which deliberate action or omission of one Party is
evidenced aiming at damaging the other Party (malice).
11.7 Each Party agrees to fully indemnify and to exempt the other Party
from responsibility, regarding direct loss and damages, direct losses
(including attorneys' fees) or losses incurred by the other Party by virtue
of any third parties' claims on the grounds of (a) violation on the part of
one Party of any duty, statement or guarantee set forth in the current
Agreement or (b) damages caused by malice or fault of its employees and/or
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hired personnel, which damages shall be verified in adequate judicial
action. This clause shall apply solely to the cases where there is no
specific penalty defined in this Agreement and its Addendums.
11.8. The Contracting Party is fully responsible for the inadequate use of
the services, object of the present Agreement that may eventually damage
third parties, including those which relate to intellectual property, being
liable for any damages it gives rise to.
11.9. The Contracted Party does not take responsibility for services
provided by the Contracting Party to third parties.
11.10. In the assumption of any clause, term or provision of this Agreement
and/or any Addendum and their respective Exhibits being judicially declared
invalid, unlawful or unfeasible, the validity, lawfulness and feasibility
of the other provisions shall not, in any way, be affected or damaged and
none of the Parties shall be penalized by the statement of invalidity,
unlawfulness or unfeasibility of the present hiring.
11.11. Any omission or tolerance by any of the Parties in demanding from
the other the strict compliance with the duties herein agreed upon, or the
performance of any right arisen from this Agreement and/or of any Addendum
and its respective Exhibits, shall not constitute renewal or waiver of
them, nor shall this affect its right to perform them at any time. The
isolate or partial performance of any right, claim, power or privilege
arisen from this Agreement and/or any of its Addendums and their respective
Exhibits shall not hinder any other performance subsequent to them or the
performance of any other right, claim, power or privilege.
11.12. Each and every modification, alteration or addendums to the present
Agreement shall only be valid if performed through a written instrument,
signed by all the Parties.
11.13. In case of any conflict between the present Agreement and any of its
Addendums and respective Exhibits, which is set forth in the Agreement
shall always entirely prevail.
11.14. The current Agreement is (and any Addendum and respective Exhibits
shall be) executed in irrevocable and irreversible manner, committing the
Parties and their successors, at any title. For the purposes of the present
Agreement and Addendums and their respective Exhibits, the partnership
arisen from the merger or incorporation of any of the Parties, shall be
considered a successor, independently of its having the same name and/or
corporate registration of the originally contracting Parties.
11.15. Communications and notices arisen from the present Agreement and/or
any Addendum and respective Exhibits shall be made through copied and
docketed mail, addressed to the representatives of the Parties, as listed
below, and to the addresses combined below or to other addresses, as
previously informed by the Parties. Pursuant the convenience of the
Parties, notifications and communications stemming from the current
Agreement can be made via facsimile, being, in this assumption, considered
as having been validly received if and when correctly sent, and in such a
situation, the original document shall be delivered to the addressed Party
through copied docketed mail within five (5) weekdays.
If to the Contracted Party:
Gerencia de Contas Atacado SP [Manager of Wholesale Accounts]
Phone: (▇▇▇) ▇▇▇▇.▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇.▇▇▇▇
If to the Contracting Party:
C/O Diretor de Operacoes [Operations Director]
Fax: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇▇ ▇▇▇▇
10
11.16. The Contracted Party bears the full entire responsibility for the
inadequate use and/or violation of the rights related to intellectual
property, patents, trademarks, copyrights, rights of software use and other
property rights of any third party in connection with the execution of this
Agreement and of its respective Addendums, which may damage third parties
being directly and exclusively responsible for any direct damages and for
judicial decisions which are evidently caused by virtue of the
non-compliance with this clause.
11.17. In case any item described in item 11.16 becomes, or has the
possibility of becoming object of conflict or claim, the Contracted Party
shall, besides the indemnification set forth in 11.16 and other rights that
the Contracting Party has, in accordance with this Agreement, forthwith and
at its own exclusive expenses, exert its best efforts to (i) assure the
right to continue to use the item or (ii) replace or modify the item so as
to correct the infraction, provided that such replacement or modification
does not cause degradation in the performance and in the quality of the
component of the affected service. In case none of the aforementioned
actions can be performed by the Contracted Party, and only in such a
situation, the Contracted Party shall withdraw the item from the services
set forth in the Addendums and the applicable amounts, pursuant to this
Agreement, shall be adjusted so as to reflect such withdrawal.
11.18. Each Party states and guarantees that (i) it has the necessary power
and authority to hire and comply with the duties and transactions
established by the Agreement and its Addendums, and (ii) the execution,
delivery and compliance of the Agreement and the accomplishment of the
transactions set forth by the Agreement have been duly authorized, in
accordance with the necessary proceedings of the respective Party.
12. TWELFTH CLAUSE - CONFIDENTIALITY.
12.1. As result of the access they have had and which the Parties may have
to Confidential Information of the other Party, as defined in 12.6 below,
the Parties reciprocally agree to the following:
a) Not to allow access to Confidential Information of the other
Party by third parties which are not their managers, employees,
representatives, agents or advisers, which have agreed to a
written commitment containing confidentiality requisites
substantially and reasonably comparable to those presented in
this clause, and to these people just in whatever necessary
measure to allow the execution of the object of this Agreement.
b) Not to use any of the Confidential Information, except for the
purposes set forth in this Agreement and/or other agreements
entered into between the Parties; to keep the highest
confidentiality possible, regarding the received confidential
Information, including rigorously watching over it, so that there
is no circulation of copies, e-mails, faxes or other means of
communication, either private or public, about the confidential
Information, besides what is strictly necessary for complying
with this Agreement.
12.2.The Parties acknowledge that it is not considered infraction to the
provisions of item 12.1.above cases in which:
a) The information is made available to the general public through
means that do not arise form its disclosure by the Parties or
their respective shareholders/quotaholders, controlled or
controlling companies of their respective
shareholders/quotaholders, representatives, employees or
advisors;
b) The disclosure is demanded by a national or international
Governmental Authority, including by the Security Exchange
Commission- SEC, under the penalty of non-compliance and other
penalty being featured. In such assumptions, the material to be
disclosed shall be the object of all applicable governmental or
judicial protection, and the Party which has to disclose such
information shall notify the other Party previously to the
disclosure;
11
c) The disclosure is previously authorized by the other Party, in
writing;
d) It is lawfully known or independently developed the Receiving
Party; and
e) It is lawfully obtained from any third parties under no
confidentiality duty.
12.3. The Parties shall instruct all those to whom they supply access to
Confidential Information from the other Party about the secrecy duty and
about the need not to disclose the obtained information.
12.4. The Parties shall remain obliged to keep and to maintain the
strictest secrecy regarding the Confidential or Privileged Information,
obtained by virtue of the execution of this Agreement, for a (3) three-year
term, counted as of its termination and its eventual extensions.
12.5. Violation of the provisions set forth in items 12.1 to 12.4 above or
the non-compliance with the confidentiality duties set forth in this
instrument, shall subject the infringing Party to refund all the losses
incurred by the damaged Party due to such violation, being such
indemnification exclusively limited to the evidenced direct damages
suffered by the damaged Party as a result of the non-compliance of the
confidentiality duties herein agreed upon.
12.6. It is understood by "Confidential Information" each and every
information that is disclosed or made available from one Party ("Revealing
Party") to the other ("Receiving Party"), related to their businesses and
operations, made available throughout the negotiations or along the term of
this Agreement and its respective Addendum(s), at any title, including, but
not limiting: personal data and traffic contents via e-mails of the
Contracting Party's clients and/or users, transmitted through the services
herein hired, statistic data, besides all and any data and/or reports
furnished by the Parties, data which involve design of products, sales,
invoices, information about the Parties<180> clients and suppliers and
other non-published financial information, planning of products and
businesses, plans, the Revealing Party's relationship with its clients,
employees, service providers and suppliers, technological processes,
formulae, source codes, with no loss to eventual patents and any support
data supplied by the Parties for the accomplishment of the present
Agreement and its Addendum(s).
13. THIRTEENTH CLAUSE - PROJECT MANAGEMENT
13.1. The Contracted Party shall appoint within fifteen (15) days, counted
as of the execution of this Agreement, a support team dedicated to the
Contracting Party, which will be responsible for supervising the service
rendering set forth in this Agreement and in its Addendums and the
relationship between the Parties. Such a support team will be formed by an
Accounts Manager and a Project Manager (each one subject to the Contracting
Party's approval) who (i) will be responsible for the building, maintenance
and operation of the network's infrastructure, (ii) will have the daily
authority to take necessary steps for assuring the Contracting Party's
satisfaction towards the service set forth in this Agreement and in its
Addendums and (iii) will be responsible for assuring the performance of the
duties herein agreed upon on the part of the Contracted Party. The people
who integrate such a support team will be the first contact point for the
Contracting Party.
14. FOURTEENTH CLAUSE - JURISDICTION
14.1. It is hereby elected the central court of the County of Sao Paulo to
settle queries that may eventually arise regarding the execution of the
present Agreement, with express waiver of any other, privileged as it may
be.
12
In witness whereof, the Parties execute the present Agreement in three (03)
counterparts of equal form and content, in the presence of two (02) witnesses,
committing, either in court or out of court, itself and its successors.
Rio de Janeiro, March 31, 2003.
TELEMAR NORTE LESTE S.A.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
SALES MANAGER
AOL DO BRASIL LTDA
/s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇
LEGAL DIRECTOR
WITNESSES:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
1:▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sampaio
/s/ ▇▇▇▇▇▇▇ FONZAGHI
--------------------------------------
2:▇▇▇▇▇▇▇ Fonzaghi
AOL DO BRASIL LTDA
--------------------------------------
--------------------------------------
13
ADDENDUM TO AGREEMENT No. CO/TELEMAR/UMA/SIP/▇▇▇▇-▇▇▇▇ ("Agreement")
TC DIAL IP SERVICE - MODALITY EXCLUSIVE
ADDENDUM No. 01 ENTERED INTO BETWEEN AOL
DO BRASIL LTDA. AND TELEMAR NORTE LESTE
S.A.
THE PARTIES:
The parties to the present Agreement are:
CONTRACTING PARTY: AOL DO BRASIL ▇▇▇▇, a limited liability company, with its
main place of business at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ - ▇. ▇▇▇▇▇, in the town of
▇▇▇▇▇ ▇▇▇▇▇, State of Sao Paulo, enrolled in the National Registry for Legal
Entities (CNPJ/MF) under n. 03.032.579/0001-62, in this act represented pursuant
to its Articles of Association, hereinafter simply called CONTRACTING PARTY, and
CONTRACTED PARTY: TELEMAR NORTE LESTE S.A., a publicly-held corporation, with
its main place of business in the city of Rio de Janeiro, State of Rio de
Janeiro, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ - 5. floor, Bairro Botafogo, enrolled in
the National Registry for Legal Entities (CNPJ/MF) under n degrees
33.000.118/0001-79, in this act represented pursuant to its Articles of
Association, hereinafter simply called CONTRACTED PARTY.
WHEREAS the highlighted terms and expressions, written with initial capital
letters, shall have the meaning to them attributed in this Addendum or in
Exhibit A to this Addendum,
The Parties AGREE to the following:
1. FIRST CLAUSE - THE OBJECT
1.1. The present Addendum has as its object the rendering of
services by the Contracted Party, necessary for the
installation and continued availability of the Dialed IP
Connections for the Contracting Party's specific applications
in Region I of the General Plan of Granting (GPG) approved by
Decree 2534/98, service hereinafter called TC DIAL IP (the
"Services").
1.2. TC DIAL IP, in its modality EXCLUSIVE, object of this
Agreement, shall be performed in accordance with the service's
characteristics, described in this Addendum and in its
Exhibits.
1.2.1. TC DIAL IP Service includes the supply, by the
Contracted Party, of telecommunications
infra-structure necessary for providing access to the
Internet, in narrow band (i.e., through dialed access
also called "dial up"), through the installation and
continuous availability of dialed IP connections in
the modality EXCLUSIVE (hereinafter simply called
"Access Ports").
1.3. The Contracting Party shall make use, to supply the TC DIAL IP
Service, of its infrastructure, which it administers in order
to provide dialed IP connection which shall allow the Users to
have access to the Internet and to the Contracting Party's
Content, pursuant to the terms of item 12.1. The localities of
Region I of the GPG, where the Contracted Party has
infra-structure to supply TC DIAL IP Service, on this date,
are listed in Exhibit 1.4. in this Agreement (List of
Localities).
1.4. The number of Access Ports contained in Exhibit 1.5
(Distribution of Access Ports per Locality) shall be enlarged
or upon Contracting Party's request, at its discretion,
provided that such request is made in writing, in accordance
with the terms of Exhibit 2.20 to the present Addendum. In
case of increase, there shall be no alteration in the unit
price and in the other commercial and contractual conditions
applicable to the new Access Ports.
1.5. It is forthwith agreed that local connection telephone numbers
shall be made available by the Contracted Party for the
Contracting Party's local connection.
1.6. Without incurring in the payment of any fines and/or
indemnifications, the Contracting Party can, at any time,
during the validity of this Addendum, request the cancellation
of any Access Port or related service, with a previous notice
of at least thirty (30) days of to the Contracted Party, being
the modularity applicable to the equipment respected; it
forthwith agrees to comply with such cancellation order in the
said period of time, without additional costs for the
Contracting Party.
2. SECOND CLAUSE - CONTRACTED PARTY'S DUTIES
2.1. To supply, install and configure the equipment and the access
system necessary for providing TC DIAL IP Service.
2.2. To adequately dimension its Network so as to guarantee the
quality criteria set forth in this Addendum and in its
Exhibits. The Services shall meet or exceed the performance
standards identified in Exhibit 2.4(ii) to the present
Addendum (such performance standards are jointly called
"Service Levels"). With no prejudice to the Contracting
Party's other prerogatives, if the Contracted Party fails to
attend any Service Level, the Contracted Party shall, with no
additional cost for the Contracting Party:
2.2.1. investigate and report the causes for the problem;
2.2.2. advise the Contracting Party about the measures which
are being taken to solve such problems;
2.2.3. correct the problem for the Service Levels to be
attended to, as soon as possible; and
2.2.4. adopt preventive adequate measures to prevent the
re-incidence of the problem.
2.3. Provide connectivity of the dialed accesses to the CFAS
(Commuted Fixed Access Service).
2.4. Provide TC DIAL IP Service pursuant to the terms and
conditions of technical specifications required by the
Contracting Party, as set forth in Exhibit 2.4(i) (Technical
Specifications of Equipment and Services), strictly complying
with quality and availability criteria and parameters of
described in Exhibit 2.4(ii) (Quality Criteria), which
includes making available to the Contracting Party the
managerial reports described in Exhibit 2.4(iii) (Online and
Offline Managerial Reports).
2.5. The requested Increase of the number of Access Ports shall be
implanted, as described in Clause 1.4.
2.6. Maintain TC DIAL IP Service in full adequate operation, in
order to assure its operation twenty-four hours (24) a day,
seven (7) days a week, except for the preventive maintenance
periods, which shall be communicated with a minimum advance of
seventy-two (72) hours. In the cases when communication is not
technically viable, in the period of time described above, the
communication will be accepted with a minimum advance of
forty-eight (48) hours. In period in which TCDIAL IP Service
is out of operation the Contracted Party is not exempt from
complying with other procedures agreed upon in the present
Addendum.
2.7. Provide technical, preventive and corrective maintenance and
provide support for the solution of problems and of failures
in Contracted Party's equipment used to provide TC DIAL IP
Service, within the term set forth in Exhibits 2.4(ii) and
2.15 and in item, 2.13 below. For such, the Contracted Party
shall keep work teams and technical maintenance twenty-four
(24) hours a day, seven (7) days a week, pursuant to the terms
of Exhibits 2.4(ii) and 2.15.
2.8. Inform the Contracting Party of new localities of Region I of
the GPG in which TC DIAL IP Service will become available, at
least thirty (30) days prior to the date established for the
release of such availability, noting that the supply terms and
conditions set forth in this Addendum shall be applied to such
new localities.
2.9. Inform the Contracting Party, in writing, within the maximum
term of thirty (30) days, counted as of the receipt date of
the Request for New Localities (a) whether or not it wishes to
make TC DIAL IP Service available, under the conditions of the
present Addendum and its Exhibits, being respected the amounts
of Access Ports contained in the Request for New Localities;
and (b) about the necessary term for the implantation, which
shall be technically evidenced, whenever requested by the
Contracting Party. For the purposes of the present Addendum,
the Contracted Party's omission within the thirty-day term or
the absence of the aforementioned technical grounds shall
represent express waiver to the right of supplying TC DIAL IP
Service in the localities in question.
2.10. Make the TC DIAL IP Service available to the Contracting Party
in all the localities assisted for such service, pursuant to
the terms of the present Addendum and its Exhibits.
2
2.10.1. The localities assisted by such TC DIAL IP Service
are those listed in the Exhibit 1.4 and others which
may eventually be informed, in accordance with item
2.8 above.
2.11. Keep the blockage of return calls in all access trunks that
are part of the TC DIAL IP Service, object of this Addendum,
being clear that the Contracted Party shall directly and
exclusively bear all any costs of such calls, in case they
occur, forthwith exempting the Contracting Party from any
liabilities related to such calls.
2.12. Whenever problems occur that make the supply of TC DIAL IP
Service unviable and which result in discontinuance and/ or
unavailability of the full use of the Service by the
Contracting Party, the Contracted Party shall solve such
problems within the maximum term set forth in Exhibit 2.4(ii),
in order to guarantee the availability standard, with no
prejudice to other provisions contained in the Exhibits.
2.13. If in such a term no solution is found for such problems
caused by and/or which are of the Contracted Party's
responsibility, than the Contracted Party shall pay the
Contracting Party, until the thirtieth (30th) day of the
subsequent month in which such problems occurred, the amount
resulting through the application of the following formula:
PIF n
C = ------ X [Sigma] (NINDi X TI)
1440 i=1
where
C is the credit due as result of service discontinuance in certain
localities in the respective month (in R$);
PIF is the price in force (in R$) of the Access Port pursuant to this
Agreement;
n is the number of localities in which service outage occurred in the
respective verification month.
NIND is the number of unavailable access ports per locality in the
month of the discontinuance.
TI is the amount of thirty-minute periods of discontinuance rounded up
to the next whole number.
For such a purpose, localities in which such discontinuances have been requested
by the Contracting Party or in which duly programmed preventive maintenance took
place will not be considered.
2.13.1. Should the problems described in item 2.13 above last
for a period equal or superior to one hundred and
twenty (120) consecutive hours, in a same locality,
than the Contracted Party shall pay the penalty
described in item 2.13 above to the Contracting
Party, and, additionally, a fine calculated pursuant
to the formula below:
n
F=2 X PIF X [Sigma] NI
i=1
where
F is the penalty amount, in R$, for all the localities in which a
service outage of Access Ports occurred for a period equal or superior
to one hundred and twenty (120) consecutive hours in one month;
PIF is the price in force (in R$) for each Access Port pursuant to this
Agreement;
NI number of Access Ports with service outage in a period equal or
superior to one hundred and twenty (120) consecutive hours in the same
locality;
n is the number of places in which service outages occurred in the
respective month.
For such a purpose, localities in which such discontinuances have been requested
by the Contracting Party or in which duly programmed preventive maintenance took
place will not be considered.
2.13.1.1. In situations described in item 2.13.1 above, the
Contracted Party shall exert its best efforts to
re-establish the Services in the minimum term
possible, including through third parties'
resources, whenever they are available,
guaranteeing, whenever technically possible, the
maintenance of the telephone numeration already used
by the Contracting Party.
3
2.13.2. Exhibit 2.4(ii) contains the description of the
quality parameters, of availability and service
level (SLA) to which the additional penalties set
forth in Exhibit 2.4(ii) are also applicable to the
Contracted Party.
2.14. To comply with and respect all operational procedures
described in Exhibit 2.15 (Flow of Operational Procedures).
2.15. The Contracted Party commits never to collect, analyze, stock
and/or make use of any information (except for ticketing
and/or certification purposes, by the Contracting Party) of
the Contracting Party's Users who navigate making use of the
TC DIAL IP Service, including, but not limiting to: names,
commercial and residential addresses, logins, e-mails, Web
pages, used Internet services, etc.
2.15.1. The Contracted Party further commits to keep in full
confidentiality each and any information of
Contracting Party's Users who make use of the TC DIAL
IP Service, as well as to take all the necessary
steps (including through the implementation of
adequate security measures) to prevent third parties
from having access to any information of the
Contracting Parties' Users.
3. THIRD CLAUSE - CONTRACTING PARTY'S DUTIES.
3.1. To certify and validate access OF Contracting Party's Users to
the Internet and to the Contracting Party's Content.
3.2. To create and generate all the maintenance systems and create
the necessary passwords and access codes so that Users can use
its Services.
3.3. The Contracting Party shall be the sole responsible for the
relationship with the final consumer of its services,
including marketing and sales, system and charging of
subscriptions and any contact with the final consumers of such
services (Central of Services), as well as for the programming
part (Content, programming, services, information,
entertainment, etc.), exempting the Contracted Party from any
liabilities arisen from problems related to such activities,
as well as for any responsibility with respect to assistance
to final consumers of services rendered by the Contracting
Party.
3.4. To effect the payment due for services rendered by the
Contracted Party, in the form, time and conditions set forth
in this Addendum.
3.5. Inform the Contracted Party, in writing, ("Request for New
Locality"), whenever it wishes to hire the Service, object of
the present Addendum, in a new locality which is not currently
provided with the Contracted Party's Network.
4. FOURTH CLAUSE - PRICE
4.1. For the TC DIAL IP Service provided, the Contracted Party
shall receive from the Contracting Party the payment detailed
in Exhibit I to this Addendum. Amounts related to Ports which
had not been (a) requested by the Contracting Party, pursuant
to Exhibit 2.20; and (b) accepted by the Contracting Party, in
accordance with the terms of the Final Acceptance contained in
Exhibit 2.20; may not be charged by the Contracted Party and
are not due by the Contracting Party.
4.2. All the prices due, under this Agreement shall be charged in
REAIS (R$) through a collection document addressed to:
Diretor de Operacos de [Operations Director]
AOL Brasil
Av. Industrial, 600 - 2o.andar
▇▇▇▇▇ ▇▇▇▇▇ - SP CEP 09080-500
5. FIFTH CLAUSE - DELIVERY AND ACCEPTANCE OF ADDRESSES.
5.1. The Contracting Party can accept or reject Access Ports, as
set forth in Exhibit 2.20 to this Agreement.
5.2 The Contracted Party acknowledges that is of major importance
to the efficient rendering of the TC DIAL IP Service the
compliance with the terms of the "Implantation Time Schedule"
and others terms related
4
to the installation of the Access Ports jointly agreed by the
Parties, in order to enable the implementation, pursuant to
this Addendum and its Exhibits, of the rendering of TC DIAL IP
Service.
5.3 The Contracted Party will be considerate in default (as
provided in item 7.1 (ii)) in case of non-compliance of the
terms set forth in the Implantation Time Schedule as a result
of act or fact not attribute to the Contracting Party for the
activation of Access Ports in an amount superior to 10 % (ten
percent) of the total aggregated amount of Access Ports..
5.4 In case the (i) terms provided in the Implantation Time
Schedule and (ii) other terms regarding the installation of
Access Ports provided in the exhibits to this Addendum are not
comply with, than t the Contracted Party shall pay to the
Contracting Party the penalty fee described hereinbelow (in
which case the limitation of 10% (ten) percent provided in
item 5.3 above shall not apply):
5.4.1 In case of delay in the activation of Access Ports,
not superior than 30 days, the Contracted Party shall
pay a daily penalty fee to the Contracting Party in
the amount of R$ [**] ([**]REAIS) for each non
activated Access Port until the date of the effective
activation of each ports or until the 30 delay day of
activation, prevailing the date that occurs first.
5.4.2 In case of delay in the activation of Access Ports,
superior than 30 days, the Contracted Party shall pay
a daily penalty fee to the Contracting Party in the
amount of R$ [**] ([**]REIAS) for each non activated
Access Port, from the 31(0) delay day, until the day
of the effective activation.
5.5 The Contracted Party agrees to promptly inform the Contracting
Party about the potential delay of any the activation of
Access Port.
5.6 With respect to the installation of Access Ports provided in
Exhibit 1.5 to this Addendum, the determinations of items 5.2
to 5.5 above will only be applicable in case of activation
delay superior than 120 days counted from the date in which
this Addendum is signed. In case the Contracted Party does not
delivery a minimum of 95 % of the ports provided in Exhibit
1.5 to this Addendum within 60 days counted from July, 1,
2003, than the Contracted Party shall pay a penalty fee
equivalent to [**] times the monthly cost for each port
(excluded taxes levied thereon) multiplied by the total number
of ports provided in Exhibit 1.5, but limited to the total
amount of R$ [**] ([**] REAIS).
6. SIXTH CLAUSE - VALIDITY TERMS
6.1. The present Addendum shall be in force on the date of its
execution, being the validity term of this Addendum of
thirty-six (36) months, counted as of its execution date
("Validity"), having the Contracting Party the option to
extend this Addendum for three (03) equal successive periods
of twelve (12) months, through notification to the Contracted
Party with at least thirty (30) days prior to the expiration
of the Validity or of any of its extensions.
6.1.1. The Exhibits to the present Addendum already include
all the Access Ports supplied by the Contracted Party
to the Contracting Party under each and any agreement
or addendum in force on this date between the
Contracting Party and the Contracted Party, related
to TC DIAL IP Service by the Contracted Party.
7. SEVENTH CLAUSE - TERMINATION
7.1. Apart from cases specifically provided for in other clauses of
this Addendum, any of the Parties can legally terminate the
present Addendum, with no liens, independently of any judicial
or extra-judicial notification and through a simple
notification, in writing, to the other Party, in case the
other Party:
(i) transfers to third parties, wholly or partially, its
rights and duties stemming from this Addendum,
besides the assumptions set forth in the Agreement or
in this Addendum, without the previous written
consent of the other Party; and
(ii) fails to comply with the duty set forth in this
Addendum and/or its Exhibits, fault which is not
corrected within a (60) sixty-day term subsequent to
the notification from the other Party.
5
7.2. The Parties expressly agree and forthwith accept that the
Party ("Infringing Party") that gives rise to the termination
of the present Addendum previously to the final term of this
Addendum, in the assumptions set forth in item 7.1. above,
shall be subject to the payment of compensatory penalty to the
other Party ("Innocent Party"), within a (5) five-day term,
counted as of the termination date.
The compensatory penalty herein determined shall be calculated through
the application of the following formula:
F = V x NP x MM
where:
F = penalty amount to be paid by the Infringing Party to the Innocent
Party;
V = Price per Access Port in force by the time of the termination of
infra-structure and hired services supply.
NP = Number of Access Ports active in the month previous to the
termination month of this addendum;
MM = Number of missing months till the expiration of the present
Addendum.
7.3. Assistance in the Transference. In any situation of
termination caused by the Contracted Party and at the
expiration of this Addendum, before the expiration of the
validity period of the present Addendum, the Contracted Party
shall keep supplying the Services rendered to the Contracting
Party, pursuant to the terms of this Addendum and of its
Exhibits, pursuant to the same conditions agreed upon, for the
minimum term of ninety (90) days, at the Contracting Party's
exclusive discretion, as of such termination date, with no
prejudice to payment obligations due with respect to such
services, as set forth in the present Addendum and in its
Exhibits, and of payment of penalty, if it is the case,
pursuant to item 7.2.
7.4. In case of expiration or termination of this Addendum, the
Parties commit to stop using and to return to the respective
Party any existing confidential information belonging to the
other party and related to this Addendum and its Exhibits, as
well as any codes, accesses or addresses supplied by both the
Parties.
8. EIGHT CLAUSE - FORCE MAJEURE
8.1. None of the Parties shall be considered in default of its
duties set forth in the Agreement or in this Addendum if and
provided that its performance is directly or indirectly
prevented or delayed by Acts of God and/or force majeure
events, as set forth in the Brazilian Civil Code (hereinafter
any of such events shall be called "Force Majeure Event").
Notwithstanding what has been detailed herein, if Contracted
Party's suppliers fails to comply with its duties taken over
in the letter's agreement with the Contracted Party, this
shall not constitute a Force Majeure Event for the Contracted
Party, unless such fault, on the part of the supplier, is
caused by a Force Majeure Event.
8.2. Concerning any Force Majeure Event, the damaged Party shall
not be compelled to comply with its duties, then affected
during the period through which such circumstances remain, and
such Party shall exert its best efforts to resume its
performance, as soon as possible. Any Party, whose performance
is prevented or delayed by the Force Majeure Event shall
forthwith notify the other Party through telephone contact (to
be confirmed in writing in up to two (02) weekdays as of the
outset of such delay) and describe in detail the Force Majeure
Event. In so far as one Party can reasonably foresee that it
will be affected by a Force Majeure Event, such Party shall
immediately notify the other Party of such foreseen delay and
describe, in as much detail as possible, the force Majeure
Event.
8.3. If a Force Majeure Event prevents or delays the Contracted
Party's performance for more than thirty (30) consecutive
days, then, the Contracting Party can hire any third parties
for the services set forth in this Addendum, without incurring
in any fines or penalties, being ascertained that, subsequent
to that discontinuance of the service providing by the
Contracted Party, the Contracting Party commits to restore the
provisions of this Addendum and its Exhibits in up to thirty
(30) consecutive days.
9. NINTH CLAUSE - MISCELLANEOUS.
9.1. The Contracted Party bears no responsibility whatsoever for
the undue use of the TC DIAL IP Service by any of the final or
third party's users.
9.2. The Exhibits mentioned hereinbelow, initialed by the Parties,
integrate this Addendum for legal purposes.
6
9.3. This Addendum constitutes the full agreement between the
Parties, related to the subject matter in question, replacing
each and any document produced about the same subject. Each
and any modification, alteration or addendum to the present
Addendum shall only be valid if performed through a written
document, signed by all the Parties.
9.3.1. Activation or deactivation of the TC DIAL IP Service
by the Contracted Party, stemming from the
Contracting Party's written request shall be
considered an automatic addendum to the present
Addendum, particularly its Exhibits 1.4 and 1.5.
9.4. In case of any divergence between the present Addendum and any
of its Exhibits, the provisions of this Addendum shall always
fully prevail.
9.5. Each Party states and guarantees that (i) it has the necessary
power and authority to hire and comply with the duties and
transactions described in the Agreement and in the present
Addendum and (ii) the execution, the delivery and the
compliance with the Agreement and the present Addendum and the
accomplishment of the transactions described by the Agreement
and the present Addendum have been duly authorized in
accordance with the necessary procedures of the respective
Party.
9.6. In case any of the terms of this Agreement or of this Addendum
eventually conflict with the law under which the Agreement and
this Addendum are constituted or if any of the terms herein
set forth is considered invalid by a court with jurisdiction
over both the Parties, the rest of the Agreement or of this
Addendum shall remain in full validity. In case the invalidity
of the said terms prevents the compliance of the fundamental
purpose of this Agreement, the Contracted Party and the
Contracting Party shall forthwith start negotiations in good
faith to refund the affected Party of such a fact of the value
(either cash or in services) equivalent to the amount that
such Party would have received in case such terms had not been
considered invalid.
9.7. In the assumption that the Contracted Party is forbidden to
provide the services hired by the present instrument, by order
of the National Agency of Telecommunications (ANATEL),
provided that such a prohibition had not stemmed from acts of
the Contracted Party's responsibility, including, but not
limiting, failing to comply with the present concession
agreement or by virtue of any modification in the applicable
legislation in force, the present instrument shall be
forthwith terminated through the Contracted Party's written
notice to the Contracting Party, informing that it shall be
immediately terminated. The Agreement's termination for such a
reason, even if on the grounds of acts of the Contracted
Party's responsibility shall not provide any of the parties
with any right to indemnification, reparation and/or
compensation and the Contracted Party shall have to exert its
best efforts to assure the continuity of the hired service.
9.8. Except for the cases where the previous liberation to the
other Party is impossible by law, none of the Parties shall
issue any notices to the press, advertisements and marketing
material, advertising or other promotional materials related
to the Agreement or to the present Addendum or that make
reference to the other Party or to its commercial names,
trademarks or service marks without the previous written
authorization of the other Party, which shall not be denied or
put off without feasible reasons.
9.8.1. Notwithstanding the aforedetailed, (i) any of the
Parties can issue press releases and other notices,
as requested by the United States Securities and
Exchange Commission, without the other Party's
authorization, and (ii) the Contracting Party can
issue press releases solely mentioning the existence
of this Addendum, without the Contracted Party's
authorization.
9.9. All the notices, requisitions, demands and determinations
under this Agreement (except for communications of operational
routine and the ones hereby specified) shall be in writing and
shall be considered as having been properly delivered (i) when
delivered in hand, (ii) one (01) weekday after having been
handed over to an express mail service, with a reliable
monitoring system of delivery, (iii) four (04) weekdays after
the postage day when sent by mail, registered letter, with
compulsory receipt, pre-paid stamping and addresses, as
follows:
7
FOR THE CONTRACTING PARTY: FOR THE CONTRACTED PARTY
AOL BRASIL LTDA. COPIES TO:
▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ - ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
- ▇▇. andar - CEP 05693-000 - Sao Paulo - SP - Brasil
Attn: Diretor Juridico [Legal Director]
Fax: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
AOL BRASIL LTDA.
▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ - ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
- ▇▇. andar - CEP 05693-000 - Sao Paulo - SP - Brasil
Attn: Diretor de Operacoes [Operations Director]
Fax: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
The Parties forthwith agree that the above addresses can be altered
provided that one Party gives the other previous notice of this new address and
the date when it will become effective.
9.10. Nothing herein contained shall be interpreted as creation of
any representation, partnership or any other type of company
formation between the Parties.
9.11. The Parties make themselves responsible for the payment of
salaries and other labor duties, of social security and social
contributions related to their employees, related to the
Services to be provided, responsibility which falls fully to
the respective Party. Besides, each Party assumes full labor
responsibility for their personnel, including social, social
security, death, administrative, disciplinary, fiscal and/or
civil, being such Party considered the sole employer, there
being no connection between its employees or representatives
with the adverse Party.
9.11.1. In case any complaints or judicial claims are filed
against one of the Parties by an employee, director,
ex-employee or ex-director of the Adverse Party, due
to its functions related to this agreement, such
adverse Party agrees to substitute the other Party as
defendant in such a complaint or claim. In case this
substitution is unfeasible, the adverse Party agrees
to refund the other Party for any expenditures
(including attorneys' fees for loss of suit)
incurred by such Party in the filed complaint or
claim.
9.12. The Parties forthwith agree that any duties that remain in
force after the termination, the cancellation or the
expiration of this Agreement, of this Addendum and its
Exhibits shall survive and remain in force, as expressly set
forth in this Addendum or in its Exhibits.
9.13. Both the Parties shall act in compliance with all the laws and
regulations which are relevant to its respective performance,
pursuant to this Agreement and/or this Addendum. The
Contracted Party shall not collect, ▇▇▇, file or reveal any
personal data related to the Contracting Party's members.
Besides, the Contracted Party shall not violate the
communication secrecy of the Contracting Party's users and
final consumers, via services.
9.14. The Parties agree that they shall not use the names, logotypes
or trademarks of the other Party or of its Affiliates, without
the previous written consent of the latter.
9.15. No omission or delay of any of the Parties in performing any
of the rights herein contained shall be considered as waiver
or renewal, nor can any isolate or partial performance of any
right herein set forth, prevent any future or ampler
performance of such right or of any other right.
9.16. As of December 31, 2005, any hiring of services contained in
this Addendum (or other services with equivalent
functionality, independently of the used nomenclature), in
Region I of General Plan of Granting (GPG) according Decree
Law 2.534, April 2, 1998, by the Contracting Party will be
always made with the Contracted Party except: (a) in the
assumption set forth in Clause Eighth of the
8
Agreement, related to price revision where the Contracted
Party refuses its pre-emptive right for new hiring or (b)
whenever there is express refusal on the part of the
Contracted Party, pursuant to the present Addendum and its
Exhibits or yet, (c) in the localities where the Contracted
Party does not comply with the minimum standards of quality
and other necessary technical conditions, pursuant to the
terms of this Addendums and respective Exhibits.
9.17. Non-compliance with the pre-emptive right set forth in Clause
9.16 above, by the Contracting Party shall imply in the
payment of compensatory penalty to the Contracted Party
proportional to the remaining period until the Agreement's
expiration, to be calculated as follows:
F = V X MM/N, where:
V = R$ [**], readjusted every twelve (12) months, counted as of the
execution date of this Agreement by applying the variation of the
IGP/DI of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation, and, in case of extinction of
such index, the official index that will eventually replace it shall be
applied.
MM = Number of the missing months for the expiration of the present
Addendum.
N = Number of months between January 1, 2006 and the expiration of this
Addendum.
10. TENTH CLAUSE - JURISDICTION AND APPLICABLE LAW
10.1. The present Agreement shall be governed by the Brazilian Law.
10.2. The Parties elect the central court of the city of Rio de
Janeiro to settle eventual controversies stemming from this
Addendum and its Exhibits.
In witness whereof, they sign the present Addendum in three (03)
counterparts of equal form and content in the presence of the witnesses below:
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, ▇▇▇▇.
TELEMAR NORTE LESTE S.A.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Position: Manager Sales
AOL DO BRASIL LTDA
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Position: Legal Director
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Position: Manager Legal
9
EXHIBIT A - DEFINITIONS
FOR THE PURPOSES OF THE PRESENT ADDENDUM, BESIDES THE DEFINITIONS SET
FORTH IN THE OTHER ITEMS, THE FOLLOWING TERMS AND EXPRESSIONS MEAN:
"SERVICE AREAS" means the Initial Service Areas and the Additional
Service Areas.
"ADDITIONAL SERVICE AREAS" shall mean any localities, besides the
Initial Service Areas, requested, from time to time, by the Contracting
Party and to which the Contracted Party accepts to offer dial-up
service, object of this Addendum.
"INITIAL SERVICE AREA" means the localities listed in Exhibit 2.21 of
this Addendum.
"AFFILIATE" means, concerning one of the Parties, any other controlling
or controlled entity or an entity under common control or entities
belonging to the same economic group. Regarding the Contracting Party,
an "Affiliate" also means any entity which operates or distributes or
is authorized to operate and distribute AOL service.
"AOL SERVICE" means an interactive service containing trademarks which
are owned or controlled by the Contracting Party or an Affiliate of the
Contracting Party, or using the whole or a portion of the Contracting
Party's network or of an Affiliate of the Contracting Party or support
systems.
"EXTRA EXPENSES" means direct verified actual expenses incurred by one
Party (including direct costs of structure and operations), but
excluding the general costs of that Party (or allocations thereof),
administrative expenses and other exclusive expenses that could have
been reasonably avoided or that could have been reasonably recovered by
that Party.
"ANATEL" means National Agency of Telecommunications. It means a set of
information and services offered by the Contracting Party and placed at
disposal for consultation and use by its users, subscribers and
visitors.
"INTERNET" means a world net which gathers, connects and interconnects
several computer nets, making use of TCP/IP protocol, controlled in
Brazil by the Management Committee and abroad by ICANN.
"GPG" means the General Plan of Granting approved by Decree n degrees
2.534 of April 2, 1998.
"IP NETWORK" means the Contracted Party's IP network, an integrant part
of the Internet network.
"NETWORK" or "NETWORK" means the set of equipment for communication and
data processing between computers, servers and other equipment.
"CFAS" means the Commuted Fixed Access Service.
"TAXES" means each and every tax, fees, compulsory loans and
contributions, including but not limiting to the contributions to PIS
[Program of Social Integration] and COFINS [Contribution for Financing
Social Security], among other taxes, related to this Agreement and
imposed by the applicable legislation.
"USERS" means all the Contracting Party's users who, making use of the
local CFAS of the CFAS operator, connect to the Internet, free of
charge, through the ports made available by the Contracted Party for
Dialed Access to the Internet.
"DIALED ACCESS TO THE INTERNET" means the User's access to the Internet
through telephone calls by means of an infrastructure of Connection to
the Internet.
EXHIBITS
EXHIBIT I Prices
EXHIBIT 1.4 List of Localities
EXHIBIT 1.5 Distribution of Access Ports by Locality
EXHIBIT 2.4(i) Technical Specifications of Equipment and Services
EXHIBIT 2.4(ii) Quality Criteria
EXHIBIT 2.4(iii) Online and Offline Managerial Reports
EXHIBIT 2.5 Time Schedule for Implantation
EXHIBIT 2.10 Technical Description of Solution
EXHIBIT 2.15 Flow of Operational Procedures
EXHIBIT 2.20 Request, Installation and Acceptance
EXHIBIT I- PRICES
The Contracting Party shall pay to the Contracted Party the monthly sums per
Access Port made available and fit for use by the Contracting Party as
documented below, being all the taxes included in this price.
PRICES PER DIAL PORT
Port's Unit
Price
Services (R$)
-------- -----------
ALLOCATION OF ACCESS PORT- MODALITY EXCLUSIVE- [**]
MONTH
ACCESS PORT'S PROGRAMMING FEE - TC DIAL IP [**]
EXHIBIT 1.4- LIST OF LOCALITIES
ALAGOAS ▇▇▇▇▇▇▇▇ ▇▇▇▇. (BH) Grajeru (Aracaju) Leblon (RJ)
Farol (Maceio) Santa Tereza (BH) Maracana (RJ)
Centro (Maceio) ▇▇▇▇▇▇ ▇▇▇▇▇▇ (BH) PARA Praia (RJ)
Tab. Martins (Maceio) Alfenas ▇▇▇▇▇ ▇▇▇▇▇ (RJ)
Jatiuca (Maceio) Araguari Santarem Tijuca (RJ)
Arapiraca Araxa Maraba Angra dos ▇▇▇▇
Barbacena Parabuebas (in abeyance) Barra do Pirai
AMAZONAS ▇▇▇▇▇ ▇▇▇▇▇ Mansa
Manaus Conselheiro Lafaiete PARAIBA Cabo Frio
Contagem (CIN) Vis. Pelotas (▇. ▇▇▇▇▇▇) Campo dos Goytacazes
AMAPA Divinopolis Bessa (▇. ▇▇▇▇▇▇) ▇▇▇▇▇ de Caxias
Macapa Serra Lima (Gov. Val.) Campina Grande Itaborai
Vila Bretas (Gov. Valadares)
Ipatinga Patos Itaguai
BAHIA Itajuba Itaperuna
Bolandera (Salvador) Joao Monlevade PERNAMBUCO Macae
Itaigara (Salvador) Juiz de Fora Nova Boa Vista (Recife) Niteroi
Arq. ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇) Lavras Boa Viagem (Recife) Nova Friburgo
Alagoinhas ▇▇▇▇▇▇ ▇▇▇▇▇▇ Encruzilhada (Recife) Mage
Barreiras Muriae Olinda Nova Iguacu
Brumado Passos Paulista Petropolis
A-1
Camacari Pocos de Caldas Caruaru Resende
Candeias Ponte Nova Petrolina Rio das Ostras
Costa do Sauipe Pouso Alegre Garanhuns Sao Goncalo
Eunapolis Sao Joao Del Rey Vitoria de ▇▇▇▇▇ ▇▇▇▇▇ Sao ▇▇▇▇▇ da Aldeia
Feira ▇▇ ▇▇▇▇▇▇▇ Sete Lagoas ▇▇▇▇▇ e Lima (attended to by Teresopolis
Paulista)
Ilheus ▇▇▇▇▇▇▇ Otoni Cabo Volta Redonda (Retiro)
Irece Tres Coracoes Camaragibe (attended to by RCE
- BVG/NBV)
Itabuna Uba PIAUI
Jequie Uberlandia Parnaiba
Juazeiro Varguinha Teresina
Paulo Afonso Vicosa
Porto Seguro Itabira MARANHAO
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ESPIRITO SANTO Sao ▇▇▇▇
Vitoria da Conquista ▇▇▇▇ (Vitoria) Imperatriz
Praia do Canto (Vitoria) Bacabal
CEARA Aracruz
Aldeota (Ceara) Cachoeiro do Itapemirim RIO GRANDE DO NORTE
Centro (Fortaleza) Jardim America (Cariacica) Centro (Natal)
Atapu (Fortaleza) Colatina Mossoro
Juazeiro do Norte Guarapari Caiaco
Sobral ▇▇▇▇▇▇▇▇ Currais Novos
Iguatu Sao Mateus
Quixadal Carapina (Serra) RIO DE JANEIRO
Russas Vila Velha Alvorada (RJ)
Crato ▇▇▇▇▇ (RJ)
RORAIMA Bento Ribeiro (RJ)
MINAS GERAIS Boa Vista Botafogo (RJ)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (BH) Campo Grande (RJ)
▇▇▇▇▇ ▇▇▇▇▇ (BH) SERGIPE Cidade de Deus (RJ)
Barroca (BH) Centro (Aracaju) Cidade Nova (RJ)
Pampulha (BH) Bama (Aracaju) Engenho de Dentro (RJ)
EXHIBIT 1.5. - DISTRIBUTION OF ACCESS PORT BY LOCALITY
INITIAL PERIOD: INITIAL SERVICE AREAS AND THEIR RESPECTIVE
AMOUNT OF ACCESS PORTS
Federation Number of
City/Town Unit Ports
--------- ---------- ---------
MACEIO AL [**]
MANAUS AM [**]
MACAPA AP [**]
ALAGOINHAS BA [**]
CAMACARI BA [**]
▇▇▇▇▇▇▇▇ ▇▇ [**]
FEIRA DE ▇▇▇▇▇▇▇ ▇▇ [**]
ILHEUS BA [**]
ITABUNA BA [**]
JEQUIE BA [**]
PORTO SEGURO BA [**]
SALVADOR BA [**]
VITORIA DA CONQUISTA BA [**]
FORTALEZA CE [**]
JUAZEIRO DO NORTE CE [**]
CARIACICA ES [**]
SAO MATEUS ES [**]
SERRA ES [**]
VILA VELHA - ES ES [**]
VITORIA ES [**]
----
A-2
IMPERATRIZ MA [**]
SAO ▇▇▇▇ MA [**]
BARBACENA MG [**]
BELO HORIZONTE MG [**]
BETIM MG [**]
CONTAGEM MG [**]
DIVINOPOLIS MG [**]
GOVERNADOR VALADARES MG [**]
JUIZ DE FORA MG [**]
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ [**]
POCOS DE CALDAS MG [**]
▇▇▇▇▇▇▇ OTONI MG [**]
BELEM PA [**]
SANTAREM PA [**]
CAMPINA GRANDE PB [**]
▇▇▇▇ ▇▇▇▇▇▇ PB [**]
OLINDA PE [**]
PAULISTA PE [**]
PETROLINA PE [**]
RECIFE PE [**]
VITORIA DE ▇▇▇▇▇ ▇▇▇▇▇ PE [**]
TERESINA PI [**]
ANGRA RJ [**]
BARRA MANSA RJ [**]
▇▇▇▇▇▇ DOS GOYTACAZES RJ [**]
▇▇▇▇▇ DE CAXIAS (TOTAL) RJ [**]
ITAPERUNA RJ [**]
MACAE RJ [**]
NITEROI (TOTAL) RJ [**]
NOVA FRIBURGO RJ [**]
NOVA IGUACU RJ [**]
▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ [**]
▇▇▇▇▇▇▇▇▇▇ ▇▇ [**]
▇▇▇▇▇▇▇ ▇▇ [**]
RIO DAS OSTRAS RJ [**]
▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ [**]
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ [**]
TRES ▇▇▇▇ ▇▇ [**]
VARGINHA RJ [**]
VASSOURAS RJ [**]
VOLTA ▇▇▇▇▇▇▇ ▇▇ [**]
MOSSORO RN [**]
NATAL RN [**]
BOA VISTA RR [**]
ARACAJU SE [**]
[[[[
----
TOTAL [**]
----
EXHIBIT 2.4(I) - TECHNICAL SPECIFICATIONS OF EQUIPMENT AND SERVICES
1. DIALED ACCESS PORTS
A-3
1.1. As of the Addendum's execution date, the Services shall fully comply
with the ITU - International Telecommunication Union - standards for
V.90 protocols, as revised by ITU on September 1998.The Contracted
Party agrees to offer the V.90 protocol immediately after they are made
available in its network. Additionally, the Services shall comply with
all the successions, developments and betterments to such protocols
within the time period to be agreed upon between both the Parties, as
of their adoption by ITU.
1.2. The Services shall be in accordance with the Contracting Party's access
methods, access technology, central architecture and other access
methods that may eventually become available to the Contracting Party
or that may be implemented pursuant to the terms of clause 2.4
hereinbelow. The access methods shall include:
1.2.1. L2TP- level 2 of tunneling based on 2661 RFC, using a common field
frequency to route the traffic to the Contracting Party. The
Contracting Party shall appoint the routable IP address. 1.2.2.
Point-to-point standard protocol - PPP- based on 1661 RFC. The
Contracted Party shall furnish a sole routable IP address for each
session as of a group of IP addresses allotted to the Contracting
Party. An ordinary certification is used for each session.
1.2.3. P3 protocol of the Contracting Party's ownership - a Contracting
Party's protocol guided by characters using a simple or basic telnet
model -TCP. The remote access provider makes use of a user's ordinary
identification and password for each session.
1.2.4. TCP/IP;
1.2.5. UDP.
2. PROVIDERS OF REMOTE ACCESS.
2.1. The providers of remote access shall stem from suppliers of good
standing in the market (first line) and shall be preferably compatible
for digital connections. Such equipment shall comply with the
specifications of certification and ticketing implemented by the
Contracting Party and shall block national return calls, coming from
the Contracted Party's network.
2.2. In no circumstances shall the Contracted Party simultaneously use
different access technologies for the same telephone number.
2.3. The Parties mutually agree about the technology used by the Contracted
Party for the Access Ports at the outset of the Services rendering. The
Contracted Party shall give to the Contracting Party written previous
notice with at least sixty (60) days in advance about any changes
whatsoever related to the suppliers of Access Port's equipment, which
are used to provide the services set forth in this Exhibit and in its
Addendum, prior to the implementation of such changes. The Contracted
Party will not be allowed to implement any of the aforementioned
changes without the Contracting Party's previous written consent. By
virtue of the afore-established, it is forthwith agreed that the
Contracted Party shall maintain the right not to expand more ports to
the Contracting Party, as set forth in the Addendum. We cannot agree
with this because of exclusivity.
2.4. The Contracted Party agrees to make use of all commercially reasonable
efforts to implement, with no additional costs to the Contracting
Party, any new technology (including any hardware or software upgrades)
as soon as possible, if so requested by the Contracting Party. In case
the Contracted Party has implemented a new technology just as an
outcome of the Contracting Party's request and such technology has not
been introduced by the Contracted Party as a result of the Contracted
Party's obligation, in accordance with the aforementioned terms, then,
if there are any sole costs associated with the implementation of such
new technology, such costs shall be shared among the beneficiaries. In
case of its being the sole beneficiary, then the Contracting Party
shall bear all the costs. Refunding of such costs shall not imply
reduction or exemption of the monthly costs related to services
providing, which make use of such new technology.
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3. ROUTERS AND SWITCHES
Such equipment shall be furnished to the first line suppliers, taking into
consideration the specific configuration needs of each locality. They must be
flexible so as to accept, including but not limiting to, QoS,CoS and filters.
4. INTERCONNECTION OF THE CONTRACTED PARTY'S NETWORK AND THE CONTRACTING PARTY'S
NETWORK.
4.1. The Contracted Party commits to provide routing to a point of physical
interconnection with the Contracting Party's facilities, in a meeting
point determined by the Contracting Party where the dialed access
traffic will be delivered by the Contracted Party to the Contracting
Party (each of such points being a "Meeting Point").
5. TRAFFIC CACHING DEVICES
The Contracting Party and the Contracted Party will be able to examine caching
solutions that aim at bettering the reply times to the Contracting Party's
content, at diminishing the traffic in the internal links of the Contracted
Party's Network, provided that the correct accessibility to the Contracting
Party's content is assured and the information about the traffic of the
Contracting Party's users and subscribers and of the visiting users are kept.
6. MONITORING OF THE CONTRACTED PARTY'S NETWORK SERVICES
The Contracted Party shall make available to the Contracting Party such devices
that will allow the monitoring of the occupation (in absolute and percentage
terms) of the ports' and circuits' data in real and historical time.
7. ARCHITECTURE INDEPENDENCE
In case the Contracted Party establishes that the offer of another operator
features a better value, or other factors that may favor the offer of the other
operator, the Contracted Party may make use of a different operator from its
current one for its network or for any part of it, provided that, nevertheless,
such uses do not adversely affect the services supplied pursuant to this
Addendum. The Contracted Party shall provide the Services in such a way that is
compatible with the Contracting Party's targets of attaining architecture
independence. Along these lines, the Contracted Party shall:
(a) manage all its providers of network service so as to minimize the
possibility that a single failure may impact the Contracting Party's
service and
(b) guarantee that each of the Contracted Party's service provider
minimizes the possibility that a single failure may impact the
Contracting Party's service. The Contracted Party shall request the
Contracting Party's approval before making use of a new operator
besides its current operator in accordance with what is allowed by this
Article.
With limiting to the Contracted Party duties describe above, the
Contracted Party will project and execute the Network used to provide
the services to the Contracting Party as set forth in the present
Addendum in a manner that there will be no unique point of failure in
such Network, which could result in an important adverse effect in the
cities that are capitals of States located in Region I of the GPG.
EXHIBIT 2.4 (II) QUALITY CRITERIA
1.BASIC CRITERIA
The regularity and the non-interruption of the Contracting Party's services and
of the subscribers' connection to the Internet and to the Contracting Party's
content is of major importance. Thus, the quality criteria shall include:
1.1. real time monitoring of the occupation of the ports and access links of
the Contracting Party's Network, separated by locality, offering to the
Contracted Party the remote online monitoring of the communication
ports, via a page made available in the Internet and protected by a
password;
1.2. access ports associated to the Contracted Party's number of lines,
which are needed to guarantee the full availability of the operation
attendance at MMT (Major Movement Time), in each performance place, as
requested by the Contracting Party, with thirty (30) days in advance,
for increases of up to
A-5
three hundred and fifty (350) new ports at each thirty(30) days. Above
such amount, the Contracted Party agrees to exert its best efforts for
the term of enlargement not to overcome ninety (90) days.
1.3. managerial reports and logs (both offline) of the sessions performed in
the access network, containing all the samples of the variables used to
prepare the online monitoring graphs as well as the real and the
percentage occupation (number of ports and kbps, respectively) per
attended place;
1.4. provide daily reports, under request, of the percentage of non-effected
calls, including their respective causes, whenever requested by the
Contracting Party, provided that the need is actually attested.
2. GUARANTEES AND SLA
The Contracted Party shall guarantee the minimum allocation of 10 (ten) kbps per
access port in each locality, and it must analyze, through mutual concord with
the Contracting Party, the future need, according to the demand duly formalized
by the Contracted Party.
The average time for failure repair shall not exceed three (03) hours, being the
period between the outset and the actual solution of such failure taken into
consideration, independently of the time of the occurrence opening.
2.1. The performance indexes to be used as a reference for the Guarantee of
Service Level (SLA) of the Contracted Party's Access Network are:
CHART 1. SLA PARAMETERS:
Parameter Value
--------- -----
Successful Connections (connecting to the AOL Service)
1.1 Monthly avarage percentage of problematic calls - War Dialer (report furnished
on a daily basis by the Contracting Party) - maximum value [**]%
1.2 Monthly average percentage of blocked calls (report furnished on a daily basis
by the Contracting Party) - maximum [**]%
1.3 Monthly average percentage of training (report furnished on a daily basis by
the Contracted Party) - maximum value [**]%
1.4 Monthly average percentage of inefficient calls (report furnished on a daily
basis by the Contracted Party) - maximum value [**]%
1.5 Calls exempt of occupation (minimum value), monthly average. [**]%
2. Quality of Connection (remaining connected)
2.1 Monthly average percentage of abnormal disconnections (report furnished on a
daily basis by the Contracting Party) - maximum value [**]%
2.2. Monthly average percentage of loss of packets in the Contracted Party's
Network)(maximum value) [**]%
2.3 Monthly average latency (maximum value) at Contracted Party's network measured
between Contracting Party's border router and:
2.3.1 the routers in the center of the Contracted Party's IP Network [**]ms
2.3.2 in NAS localities in the Sates of RJ, ES and MG [**]ms
2.3.3. NAS in other localities of the Contracted Party's IP Network [**]ms
2.3.4. NAS in the localities served by satellite links (except solar perturbation) [**]ms
2.4 Connection speed in 99% of connections (minimum amount) for users of V.90 or
superior modems [**]Kbps
3. Services Availability
3.1 Monthly availability for Contracted Party's whole Network (minimum amount) [**]%
3.2 Annual availability for Contracted Party's whole Network (minimum amount) [**]%
3.3 Monthly availability for each locality (minimum amount) [**]%
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Percentage of problematic calls - WAR DIALER - PERCENTAGE OF CONNECTION FAILURES
TO THE CONTRACTING PARTY'S SERVICE WITH RESPECT TO TOTAL ATTEMPTED CALLS
EFFECTED IN EACH DAY BY THE EQUIPMENT WAR DIALER OF THE CONTRACTING PARTY. BUSY
CALLS ARE EXCLUDED FROM THIS METRIC.
Blocked Calls - PERCENTAGE OF NON-REPLIED CALLS BY RAS EQUIPMENT AS A RESULT OF
UNIQUE UNAVAILABLE OF PORTS IN THE RAS, IN CASES IN WHICH THE TOTAL AMOUNT OF
PORTS CONTRACTED IN THE RESPECTIVE LOCALITY IS NOT MET
Training - PERCENTAGE OF CALLS WHICH REACH THE MODEM OF RAS EQUIPMENT AND IN
WHICH THE COMMUNICATION NEGOTIATION FAILED (HANDSHAKING).
Inefficient - PERCENTAGE OF CALLS WHICH SUCCESSFULLY COMPLETED THE COMMUNICATION
WITH THE MODEM OF RAS EQUIPMENT (HANDSHAKING), BUT FAILED TO ESTABLISH A SECTION
WITH THE CONTRACTING PARTY HOST.
Calls exempt of occupation - PERCENTAGE OF COMPLETED CALLS.
Percentage of abnormal disconnections - PERCENTAGE OF ESTABLISHED SECTION THAT
ARE DISCONNECTED WITHOUT A LOGOFF SEQUENCE.
Percentage of loss of packets - PERCENTAGE OF ALL PACKETS WHICH WERE REJECTED BY
THE CONTRACTED PARTY NETWORK.
Availability of access ports in the Contracted Party's whole Network - CALCULATE
MONTHLY AND ANNUALLY ACCORDING TO THE FOLLOWING FORMULA:
n
[Sigma](TINDi)
i+1
Availability = -------------- X 100%,
n X TTOTALi
where:
TTOTAL : is the total time for Access Port i in the period taken into
consideration;
TIND: is the time for the Access Port i unavailability in the period taken into
consideration;
n : is the number of Access Ports installed in the period taken into
consideration.
DURING EVERY DAY IN THE MONTH, AT EACH FIVE (5) MINUTES, THE CONTRACTED PARTY
SHALL COLLECT THE LATENCY INFORMATION REGARDING THE RATE OF LOSS OF PACKETS AND
OF THE AVAILABILITY OF ACCESS PORTS OF EACH LOCALITY AND OF THE INTERCONNECTION
CHANNELS BETWEEN THE CONTRACTED PARTY'S NETWORK AND THE CONTRACTING PARTY'S
NETWORK.
LATENCY MEASURES AND THE LOSS OF PACKETS SHALL DETERMINE THE HOURLY AVERAGE, THE
DAILY AVERAGE, AND, LASTLY, THE MONTHLY AVERAGE, WHICH WILL BE COMPARED WITH THE
VALUE ESTABLISHED FOR THE RESPECTIVE PARAMETER.
THE PARAMETERS "CALLS FREE FROM OCCUPATION" AND "CONNECTION SPEED" CAN BE
MEASURED BY THE CONTRACTING PARTY THROUGH DIAL TESTS, ON THE GROUNDS OF EVENTUAL
COMPLAINTS REPORTED BY THE CONTRACTING PARTY'S USERS.
Availability for the whole Contracted Party's Network shall be calculated
monthly and yearly. The availability per locality and for the whole network
shall also be monthly and annually calculated for Latency and Loss of Packages
parameters.
Failure in the compliance with the SLA parameters established in items 1.1, 1.2,
1.3, 1.4, 1.5, 2.1, 2.3, and its sub-items and 3.1, all contained in Chart 1
above, shall subject the Contracted Party to the monthly payment of compensation
fine to the Contracting Party in the amount of [**] REAIS (R$[**]) for each
non-complied monthly parameter, revised at every (12) twelve-month period
according to the variation of the IGP-DI General Index of Market Prices of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation.
The application of such fine shall only be effected subsequently in the
following conditions:
a) for items 1.5, 2.2, 2.3 and its sub items and 3.1, exclusively after
the activation of 100% of the contracted ports; and
for items 1.1, 1.2, 1.3, 1.4 and 2.1, exclusively 180 (one hundred and eighty)
days after the execution of this Agreement.
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2.2. AVAILABILITY PER LOCALITY
The non-compliance with the Contracted Party's periodical SLA of each locality,
as determined hereinbelow for the Availability Parameter, shall entitle the
Contracting Party to replace the Contracted Party in providing TC-Dial_IP
service in the respective locality, independently of any other restrictions.
Chart 2. Availability Parameters, to be periodically verified:
Amount of Ports of the Locality Availability Verification Period
------------------------------- ------------ -------------------
More than 300 99,0% 2 months
From 200 to 299 97,0% 4 months
From 100 to 199 95,0% 6 months
Fewer than 99 90,0% 8 months
Each locality's availability shall be monthly calculated as the
availability average of all the access ports which form the respective locality,
pursuant to the formula below
n
[Sigma] (TTOTALi-TINDi)
i+1
Availability = ----------------- X 100%
n X TTOTALi
where:
TTOTAL : is the total time for Port i in the period taken into consideration;
TIND: is the time for the Port i unavailability in the period taken into
consideration
n : is the number of Ports installed in the period taken into consideration.
The Contracting Party agrees to revise the Availability parameters of Chart 2
every six months, so as to increase the Availability, on the grounds of both the
amounts effectively measured in the previous periods and of the values of the
targets determined in Chart 1 of the SLA Parameters.
Programmed interruptions requested by the Contracting Party or the preventive
maintenance shall not be registered for the calculation of the service
availability.
2.3. BLOCKED CALLS
In case the Contracting Party detects signs of telephone numbers being busy when
(according to the use reports presented by the Contracted Party, pursuant to the
terms of this Agreement or Addendum)_ not all/ all the ports of such telephone
numbers are being used - (Blocked Calls), the Contracted Party shall correct
such Blocked Calls within twenty-four (24) hours counted as of the notice given
by the Contracting Party to the Contracted Party. In case this twenty-four
period is exceeded, the Contracted Party shall not charge from the Contracting
Party such access ports during the period when the blocked calls had been
verified. In case the Contracted Party fails to comply with the determinations
of the previous sentence and charges the Contracting Party fort the amounts
related to the aforementioned access ports, then, additionally to the
Contracting Party's other rights and prerogatives, the Contracting Party is
forthwith authorized to deduce such amounts out of any other amounts due by the
Contracting Party, pursuant to this Addendum.
3. PREVENTIVE MAINTENANCE
The preventive maintenance openings shall happen on Tuesdays and Thursdays,
provided that they do not fall on holidays, from five (5) a.m. to seven (7) a.m.
and they shall be performed by the Contracted Party in such a way as to minimize
the range and the duration of the services rendered by the Contracting Party to
its final users.
The Contracted Party shall advise the Contracting Party with at least
seventy-two (72) hours in advance and inform which localities or elements of the
Contracted Party's Network will be affected.
A-8
The Contracted Party guarantees that the procedures for its Network's preventive
maintenance are devised so as to minimize the range and the duration of the
services rendered to the Contracting Party's final users.
Exceptions to the determinations hereinbefore shall be previously agreed upon
between the Parties, case by case.
4. REQUESTS FOR REPAIRS
The Contracting Party shall make available to the Contracted Party a telephone
number of free access (0800), 24 hours per day even on Saturdays, Sundays and
holidays, 365 days per year, for the opening of calls and registers of requests
for repair, fittings and re-establishment of the services rendered.
In case there is the occurrence of any Major Operational Failure in the
Contracted Party's network, the Contracted Party commits to forthwith
communicate it to the Contracting Party's Department of Operations, detailing
the corrective measures which are being performed, as well as the time foreseen
for the repair.
When a problem is detected, whether it is detected by the Contracting Party or
by the Contracted Party, a call for request of repair shall be opened and,
therefore, the necessary steps for its solution shall take place.
Operational failures due to third parties' systems, which are not controlled by
the Contracted Party or by the Contracting Party, or else due to a force majeure
event, must be justified and evidenced in the maximum time period of two (2)
hours, for the immediate definition of the eventual measures to be adopted.
EXHIBIT 2.4 (III) - ONLINE AND OFFLINE MANAGERIAL REPORTS
The Contracted Party commits to hand over the following reports to
representatives appointed by the Contracting Party (or by e-mail if requested by
the Contracting Party) always in the formats requested by the Contracting Party
and making use of the form of information exhibition determined by the
Contracting Party:
1. Supply daily reports of the access ports per locality, with a minimum
interval of five (5) minutes between the collections, including but not
limiting;
- Percental or absolute use of Ports (MRTG or online similar
one)
- IP address and telephone number of each locality (locality
identification, online).
2. Supply the following daily reports in which will become available at
least 90 days after the sign of this Addendum
- Reports about utilization at each hour in each locality (Modem
Utilization per Hour)
- Utilization of access ports per locality.
- Daily reports of ineffective calls (P3, PPP and L2TP)
- ANI's daily reports, containing the caller's telephone number,
the called telephone number, user's name, connection date and
time and total time of connection.
- POP update - report with details of each locality, including
the number of ports and the locality's telephone number.
- IP's addresses used in each locality (IP to phone number).
3. Supply daily reports of the percentage of the non-effected calls in the
telephone network, whenever requested by the Contracting Party,
provided that the need is effectively evidenced (report of losses in
the central points, offline).
4. Supply daily reports with a minimum interval of five (5) minutes
between collections, of the data links per locality, appointing, but
not limited to:
A-9
- Circuit Designation - locality name, IP address of the
interface of the router's communication port, link band
(online).
- Direction of the data flow and percentage utilization of the
links (MRTG or similar)
- Loss of packets (online)
- Latency (online)
- RRT (Round Trip Time) medium, minimum and RTT's standard
diversion.
5. Periodically supply reports about (offline) logs (preferably every
fifteen days) about the information collected for the making of graphs
and online reports (type MRTG or similar). Such information shall
furnish the Contracting Party with enough information to re-generate
the same graphs presented in the monitoring of online events.
6. The Contracting Party can request additional reports and the Contracted
Party shall see to such additional reports about data not yet prepared,
within the term agreed upon between the Contracted Party and the
Contracting Party, being such periods of time governed by the criteria
of reasonability. In case the Contracted Party eventually incurs costs
and additional expenses for the preparation and/or implementation of
such additional reports, then, the Contracted Party shall notify the
Contracting Party, previously to the reports implementation, about such
additional costs and the Parties shall previously agree about the
responsibility for the payment of such costs.
EXHIBIT 2.10. - TECHNICAL DESCRIPTION OF SOLUTION
The TC Dial IP is a solution for the supply of dialed access to the Internet
with high quality and reliability which makes available the most modern
infra-structure and the advanced management to companies that wish to act as
Internet service providers, outsourcing the necessary infra-structure. The
solution is valid for the Contracting Party in the more than 140 presence points
of the Contracted Party's Backbone I P in Region I.
Dialed access to the Internet is the access performed through the Commuted Fixed
Telephony Service (CFTS) by means of the Remote Access Service (RAS) which
performs the interface between the Telephony Network and the IP/Internet
Network. It constitutes a predominant form of access to the great public, due to
CFTS's extensive capillarity and penetration.
When contracting the TC Dial IP, the Contracting Party becomes able to offer
dialed access to the Internet to its users, clients, partners and suppliers. The
Contracting Party makes available telephone numbers attended to by an
infrastructure capable of receiving modem calls and of connecting the computers
which have originated the calls to the Internet.
The TC Dial IP will allow the Contracting Party to keep the focus on its clients
enjoying its high capillarity and the quality in the service rendered,
outsourcing part of the infra-structure of access to the Internet and being its
management under the Contracted Party's responsibility, with the possibility of
Remote Monitoring, by the Contracted Party, of the Access Interfaces available
in the Contracted Party's IP Network.
1. TOPOLOGY OF THE SOLUTION
The connection model, exclusive for the delivery of the TC Dial IP service to
the Contracting Party, is detailed in the figure hereinbelow:
The TC Dial IP has its quality acknowledged by Cisco, having received the seal
"Cisco Powered Network - CPN" to attest it. The RAS used are all of them Cisco's
last generation equipment, assuring the higher quality of connection and extreme
reliability.
A-10
2. NETWORK ENGINEERING
2.1. The Contracted Party states that it has a team of network engineers to
perform long term operational planning.
2.2. The Contracted Party shall continue to improve the network project so
as to reduce the risks for the Contracting Party, to improve the
powerfulness and the cost/performance of the transmission system.
2.3. The Contracted Party shall keep the facilities, the equipment and the
software used to supply the services so that they can operate in
accordance with their respective specifications, including:
2.3.1. to keep the equipment in good operational conditions,
2.3.2. to take over the repairs and the preventive maintenance of the
equipment, including in its minimum level, in accordance with
the applicable advice of the equipment manufacturer,
2.3.3. to carry out software maintenance including to a minimum
level, in accordance with the software's applicable
documentation and to the suggestions of the software supplier.
2.4. By means of the Contracting Party's request, with a minimum term of
seventy-two (72) hours in advance, the Contracted Party shall provide
the Contracting Party's representatives with physical access to one or
more points of presence (hereinafter simply "POP" or "POPs") identified
by the Contracting Party and used to provide Services, with the
objective of inspection for identification and joint resolution of
eventual problems. Such an access shall be made available in such a way
as not to interfere with the Contracting Party's operations.
3. ORGANIZATION OF NETWORK SUPPORT.
3.1. Engineering. The Contracted Party shall keep a network engineering team
that shall deal with the Services<180> technical aspects, with the
resolution of the problems determined by the Management Center in
Network (MCN) and with the improvement of the performance and of the
process. Such an engineering team will interact directly with the
Contracting Party and the MCN.
3.2. Implementation. The Contracted Party shall keep an implantation team
consisting of field and technical engineers.
3.3. Operations. The Contracted Party's Management Center in Network (MCN)
will manage the operation and the maintenance of the Contracted Party's
Network. The MCN monitoring capacity will be devised to detect and
correct most of the network problems before they are visible to the
Contracting Party or its clients. MCN shall gear its maintenance
activities based on the entries of the monitoring systems and of the
Contracting Party's. The Contracted Party shall manage a great part of
the repair tasks over the telephone.
4. MISCELLANEOUS
4.1. The Contracted Party shall provide, for each local individual area, a
sole set of IP addresses in such a way that the members demography can
be identified through the aforementioned IP addresses. The IP addresses
shall be provided to the Contracting Party at least two (2) weeks prior
to the use by the Contracted Party, so as to supply such Services.
4.2. The Contracted Party shall acquire and shall manage IP addresses for
all the protocols used by the Contracting Party and otherwise necessary
for the Contracted Party to comply with its obligations towards the
Contracting Party, in accordance with this Addendum. For each session
of a final user of the Services, the Contracted Party shall dynamically
attribute a sole IP address for such session.
4.3. The Contracted Party will provide DNS services contained in its
network, including the following:
4.3.1. Solution of DNS requisites for the Contracting Party's
destinations;
4.3.2. Support of DNS service for the Contracting Party's dominium
and for any resident zones in the Contracting Party's
providers of names; and
A-11
4.4 The Contracted Party shall group routing information sent to the
Contracting Party and shall control the addition or the withdrawal of
routing information. The Contracted Party shall provide to the
Contracting Party with routing information in the Contracted Party's
commutation points, as requested by the Contracting Party.
5. TELEPHONE NUMBERS.
5.1. The Contracted Party shall reserve dedicated telephone numbers, which
are different among themselves in each of the localities agreed upon,
solely for the Contracting Party to be able to access the POPs used in
the rendering of Services. The Contracted Party shall guarantee that
the telephone numbers will be continuously available to the Contracting
Party while this Addendum is in force and in accordance with its terms.
Further, the Contracted Party shall not make available such telephone
numbers to third parties without the Contracting Party's previous
consent, while the Addendum is in force.
5.2. At any moment, through the Contracting Party's request and, if
possible, pursuant to the terms of the regulatory regime in force, the
Contracted party shall transfer to the Contracting Party or to third
parties indicated by the latter, all the property rights associated to
telephone numbers related to each POP used when rendering the Services
which correspond to the Services.
5.3. Any alterations in the telephone numbers used for providing the
Services will call for the Contracting Party's previous written
approval, in the cases of alteration of the telephone numbers used when
providing the Services:
5.3.1. The Contracted Party shall provide the Services using both the
original telephone number and the new telephone number for at
least ninety (90) days subsequent to the test and to the
acceptance by the Contracting Party of the Ports that make use
of the new telephone numbers; and
5.3.1.1. The total numbers of Ports used for both the telephone numbers
shall always be equal or higher than the total number of Ports
used for the original telephone number.
5.4. In case a specific telephone number is made available by virtue of a
Force Majeure Event, the Contracted Party shall exert all its possible
efforts to provide alternatives (through re-routing or other
techniques) which will allow the Contracting Party's subscribers to go
on using the original telephone number.
5.5. Whenever allowed by the terms set forth in the regulatory regime in
force and whenever it is technically possible, the Contracted Party
shall provide the Contracting Party with a single number, valid all
over the national territory, which shall belong to the Contracting
Party including, with no limitation, the telephone numbers of "07XX or
1700" formats, as set forth in ANATEL's [National Agency of
Telecommunications] Public Consultation n degrees 417, related to the
"Regulation Proposal for the Use of Services and Telecommunications
Networks in the Access to Internet Services" (the "New Models"), being
that the service conditions and the Port of Access prices herein agreed
upon shall be fully applicable to the Ports used by the Contracting
Party related to such new telephone numbers.
5.5.1. In this case the Contracting Party will be allowed, at its
exclusive discretion, to migrate already hired Ports, pursuant
to the Addendum, to the New Models, without incurring any
fines, penalties and/or expenses.
6. SERVICES EVOLUTION.
6.1. The Contracting Party shall be responsible for the evolution of the
Services (whether through modifications, amplifications,
supplementations or replacements), so as to meet the technological
advancements and the advancements of methods of services delivery, as
requested by the Contracting Party, or otherwise, particularly where
such advancements are, at any time, of generalized use in the
telecommunications industry or by the Contracting Party's competitors;
except, however, that the Contracted Party shall have the Contracting
Party's previous express consent to implement any modifications,
amplifications, supplementations or replacements for the Services not
expressly requested by the Contracting Party. The evolution of the
Services shall comprise the addition by the Contracted Party of
functionality in so far as such addition is possible by the use of new
equipment and/or software reasonably available to the Contracted Party,
during the Validity.
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6.1.1. Adjustments to the Services, in accordance with this Section
6, shall be considered as if they were contained in the
purpose of the Services, with the same range and in the same
manner as if they were expressly set forth in this Addendum.
6.1.2 In case that happened any cost because of the evolution so the
Services, as set forth describe above, and the only
beneficiary was the Contracting Party, the Contracting Party
will be liable for all costs. In case that have more than one
beneficiary to this process, so the costs will be share with
all beneficiaries.
EXHIBIT 2.15. - FLOW OF OPERATIONAL PROCEDURES
This document sets forth the assignment for failures in the Contracting Party's
Network Services.
1. The Contracted Party shall appoint a team and shall operate a pilot
Network Operation Center ("NOC") with dedicated assistance to the
Contracting Party and shall provide, until 120 days after the sine of
this Addendum, a NOC in a separate locality, at a reasonable distance
from the pilot NOC. The purpose of such task shall include the
Contracted Party's following Support Services for the network:
1.1. NOC operation, its co-allocated systems and equipment, with
trained qualified personnel in a continuous way, 24 hours per day, 7
days per week (holidays including);
1.2.Continuous monitoring and supervision of the network performance;
1.3. Analysis of the problems that may occur, to isolate the identified
failures and to manage the solution of events, in accordance with the
item of this Exhibit 2.15;
1.4. Coordination of the remittance of maintenance representatives for
corrective maintenance activities and for information recording in an
Abnormality Ticket (AT). The Contracted Party's responsibilities shall
include:
1.4.1. Beginning of a request for corrective maintenance and
recording of the times when the calls are received by the
Contracting Party's maintenance representative.
1.4.2. To point out all the network failures in the AT and, in
case a maintenance representative is sent to the place, record
the remittance time in the AT;
1.4.3. After the arrival of the maintenance representative to
the place, the acknowledgement of the reported problems and
the recording of the representative's arrival time at the
place;
1.4.4.Through the Service re-starting, confirm through the AT,
the solution of the problem and its causes and the time when
the Service was re-established.
1.4.5 Provide analyst support to identify the problem.
1.4.6 Adopt adequate provides to resolve the problem.
1.5. Beginning of the ATs, keeping a register of all ATs, ATs
coordination with the support personnel and tracking down of problems
until the solution, using a commercially available software system for
problems recording,
1.6. Provide analyst support twenty-four (24) hours a day, seven (7)
days a week (holidays including) through a free telephone number;
1.7 Provide the Contracting Party with a list of contact people
containing contact numbers, including numbers of cellular phones and
other necessary information for access to the Contracted Party's
qualified representatives (including the Contracted Party's high level
officers), who may adequately act in emergency situations, in case the
NOC fails to adequately act towards the Services failure or
interruption, within half an hour (the scaling ordinary procedure is at
every two hours, pursuant to item 1.18 hereinbelow), counted as of its
respective occurrence. The Contracted Party shall update such a list
periodically, as necessary, or by request of the Contracting Party.
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1.8 keep a technical library for the NOC.
1.9. Install and keep security components and specific network alarms
for the Services through a system of network management;
1.10. Provide operational support to the Contracting Party in the area
of network testing in association with supply actions. Such tests shall
be performed as of the NOC, jointly with the Contracted Party's local
installation personnel ;
1.11. Keep and see to updates in the NOC's documentation;
1.12. Act as a Contracting Party's agent as regards the subjects of
network security on a daily basis, as directed by the Contracting
Party, in accordance with reasonable commercial practices and making
suggestions for improvement
1.13. Use commercial devices for teleconference for the solution of
network problems, the cataloguing of problems and the planning of
activities;
1.14. Provide NOC with support service via electronic mail
1.15. Provide a fax service installed in the NOC equipment.
1.11. In case they exist, identify and track down all the software and
the code lines developed by the Contracted Party.
SCALE TIME AND PERSONS RESPONSIBLE FOR THEM;
Level Opening Time Name / Position
----- ------------ ---------------
Operation of the Contracted Party's network services
Critical Immediate Coordinator/Manager/Superintendent and/Director
0800-XXXXXX
-------------------------------------------------------------------------------
> 2 h Services Manager of the Contracted Party's network
High
> 3 h Superintendent/Director
-------------------------------------------------------------------------------
> 4 h Services Manager of the Contracted Party's network
Average
> 5 h Superintendent/Director
-------------------------------------------------------------------------------
> 6 h Services Manager of the Contracted Party's network
Low
> 8 h Superintendent/Director
-------------------------------------------------------------------------------
1. CONTACT FOR SCALING PROCEDURES
Services Management Center of the Contracted Party's Phone: 0800-XXXXXX
Network
EMAIL: ▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Name of the Services Manager of the Contracted Party's Phone: XX XXXX XXXX
Network Cell: XX XXXX XXXX
EMAIL:▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Name of the Services Superintendent of the Contracted Phone: XX XXXX XXXX
Party's Network Cell: XX XXXX XXXX
EMAIL: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Name of the Services Director of the Contracted Party's Phone: XX XXXX XXXX
Network Cell: XX XXXX XXXX
EMAIL:▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
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2. ACCESS VIA WEB
The reports of the Contracted Party's Network will be available in a URL with
username and password as follows:
URL: ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇.▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Username: login name
Password: login password
EXHIBIT 2.20- REQUEST, INSTALLATION AND ACCEPTANCE
1. Supply and implementation of Dedicated Dial-up Access Service
1.1. Requests.
1.1.1. Generalities. To request Services, the Contracting
Party must submit to the Contracted Party a request for
service (the "Request"), containing the following information
(being such information "Delivery Criteria"):
1.1.1.1. The total number of Ports that must be
installed for each one of the requested localities;
1.1.2. The required dates for the Ports delivery. Each Request
must be clearly marked as such and must be delivered by the
Contracting Party via e-mail for those individuals appointed
in writing by the Contracted Party. The Request can only be
reputed valid if assumed by a representative appointed by the
Contracting Party.
1.1.3. In the localities listed in Exhibit 1.5 of this
Addendum, the Ports shall be made available in the modularity
of five (05) Ports;
1.1.4. In the other localities, which are not listed in
Exhibit 1.5 (a) the initial modularity shall be of 10 Ports
and (b) for increases subsequent to the First Request for such
localities, the modularity shall be of five (05) Ports.
1.1.5.Initial Request. The Contracting Party requests the
installation of Access Ports in the localities and in amounts
set forth in Exhibit 1.5. (the "Initial Request").
1.1.6. The increase of the amount of Ports hired pursuant to
this addendum and through the Initial Request shall not imply
the need or obligatoriness of hiring an additional band to
Internet Access by the Contracting Party.
1.2. ACCEPTANCE OF REQUESTS BY THE CONTRACTED PARTY.
1.2.1. Initial Request. The Contracting Party, through this
instrument, accepts the Initial Request.
1.2.2. Other Requests. Within ten (10) weekdays subsequent to
receiving another Request (or a part of it) of the Contracted
Party, other than the Initial Request, the Contracted Party
shall notify the Contracting Party of its acceptance or
rejection to such a Request. If the Contracted Party fails to
provide the Contracting Party with an acceptance notice within
ten (10) weekdays, then such request shall be considered
accepted.
1.3. Rejection of Requests. In so far as the Contracted Party
eventually rejects a Request (or a part of it), additionally to the
other rights and prerogatives they are entitled to, the Contracting
Party will be expressly freed
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from complying with any determination of this Addendum and of this
Exhibit, including the Exclusivity in the localities of the Ports
erroneously rejected.
1.4.CANCELLATION OR MODIFICATION OF REQUESTS.
1.4.1.Before accepting or rejecting any request by the Contracted
Party, the Contracting Party may terminate or modify, in the whole or
in part, at its exclusive discretion, such request without incurring
any liabilities, fines or penalties.
1.4.2. After a request acceptance by the Contracted Party, the
Contracting Party may cancel or modify such request, in the whole or in
part, at any time before the delivery date, provided that the
Contracting Party refunds the Contracted Party for any Additional
Expenses actually incurred as a result of such cancellation or
modification. The Contracting Party shall not bear any liability before
the Contracted Party for a cancelled request related to this item 1.4.2
besides the payment to the Contracted Party for such Additional
Expenses. The current Clause shall be subject to the other Clauses of
the Addendum and of this Exhibit, which authorize the Contracting Party
to modify and/or cancel Accepted Requests under certain circumstances.
2. DELIVERY
2.1. Obligations for the Delivery. The Contracted Party shall deliver Ports
corresponding to a Request that has been accepted or is considered as having
been accepted by the Contracted Party (any of such requests an "Accepted
Request"), in accordance with the Delivery Criteria and with the terms of the
Addendum and of this Exhibit. If the Contracted Party can deliver such Ports
before the appointed delivery date, then, the Contracted Party must notify the
Contracting Party and, by request of the latter, the delivery date for such
Ports will be advanced. "Appointed Delivery Dates ", related to Ports, shall
mean the dates when the Contracting Party is committed to deliver the Ports,
pursuant to the terms of this Section 2.1.
2.2. FAILURE IN DELIVERY.
2.2.1. If the Contracted Party fails to deliver the Ports corresponding
to an Accepted Request in the Appointed Delivery Date, then,
additionally to the Contracting Party's other rights and prerogatives,
pursuant to the law and to the current Addendum, the Contracted Party
shall grant the Contracting Party a credit equivalent to the daily
values corresponding to the amounts that would be charged of the
Contracting Party for such Ports, as of the Appointed Delivery Date
until the date when such Ports are effectively delivered.
2.2.2. For each thirty-day period after the Appointed Delivery Date
when the Ports have not been delivered pursuant to this Addendum,
additionally to the other rights and prerogatives of the Contracting
Party, in accordance with the law and the current Addendum, the
Contracted Party shall grant the Contracting Party a credit equivalent
to the amount charged of the Contracted Party for the said Ports within
the said thirty days. Exemplifying, in case of delay of a Port (a) for
twenty-nine (29) days, then, the Contracted Party shall make available
to the Contracting Party a credit equivalent to the PRO RATA value of
twenty-nine days of such Port, as set forth in item (i) above; (b) for
thirty-two (32) days, then, the Contracted Party shall make available
to the Contracting Party a credit equivalent to sixty-two (62) days,
out of which thirty-two (32) days are due pursuant to the terms of
Section 2.2 (i) above and thirty (30) days are due in accordance with
the present Section 2.2.
2.2.3. In case the Contracted Party fails to deliver more than ten per
cent (10%) of the Ports corresponding to an Accepted Request after
ninety (90) days counted as of the Appointed Delivery Date for such
Ports, then, in addition to the Contracting Party's other rights and
prerogatives, pursuant to the law and to this current Addendum and to
the Agreement, (a) the Contracting Party shall be, as of the end of the
ninety-day term freed from the Exclusivity and (b) the Contracting
Party may terminate the present Addendum and the Agreement, with
previous notice, without incurring the payment of any fines and/or
penalties.
2.3. Calculation of the Delivery Date. Upon the delivery of any Port, (but not
before such delivery), the Contracted Party shall notify the Contracting Party
of such delivery, through the representative appointed by the Contracting Party.
For the purposes of this Addendum, the delivery of any Port shall be made at the
time of receipt by the Contracting Party of such notice from the Contracted
Party Notwithstanding the compulsory
A-16
delivery date described in this section 2.3, in case any Port delivered along
the month does not receive the Final Acceptance within a five-weekday term,
counted as of its delivery, then, such Port will be reputed as having been
delivered on such date.
3. ACCEPTANCE
3.1. Acceptance Test. The Contracting Party shall have a time of not
more than five (5) weekdays after the delivery of a Port ("Acceptance
Test Period") within which it will test such Port. The Contracting
Party may test the Ports through any method it thinks fit, so as to
determine whether such Ports meet or surpass any of the Acceptance
Criteria.
3.2. Acceptance Criteria. The Contracting Party has the option to
reject the Ports in case any of the following items are not met (such
items are jointly the "Acceptance Criteria"), provided that the
infrastructure supplied by the Contracting Party is in full operation.
3.2.1. at least eighty-five per cent (85%) of the
users' sessions ends only with a disconnection sequence
started by the users;
3.2.2. at least ninety-two per cent (92%) of the calls of
users successfully connect to the Ports; and
3.2.3. at least ninety-seven per cent (97%) of the calls of
users who successfully connect to the Port also successfully
connect to the Contracting Party's service.
3.3. Rejection. If a Port fails to comply with any of the Acceptance
Criteria (each one such non-compliances constitutes a "Non
Conformity"), the Contracting Party shall notify the Contracted Party,
(via e-mail), within the Period of the Acceptance Test, specifying the
nature of the failure with reasonable details. The Contracting Party
shall remove such rejected Ports in which corrective actions and the
extinction of problems are pending. With no additional charges to the
Contracting Party, the Contracted Party shall repair, replace or
correct the Non- Conformity as soon as it receives the Contracting
Party's notice that the Ports do not meet the Acceptance Criteria. By
the end of the repairs and at the re-liberation of the respective Ports
by the Contracted Party to the Contracting Party, the Contracting Party
shall be granted an additional Acceptance Test Period to re-test the
Ports and set forth whether the Non-Conformity has been corrected and
whether such Ports meet the Acceptance Criteria. This process must be
repeated as many times as necessary until all the Non-Conformities are
corrected and such Ports meet the Acceptance Criteria.
3.3.1 Notwithstanding what has been set forth, if, after three (3)
trials for curing the Non-Conformities, the Contracted Party has not
delivered the respective Port, according to the applicable Acceptance
Criteria, then the Contracting Party can fully or partially cancel,
with no cost or liability for the Contracting Party, the total or the
part which has not been met of the Accepted Request as of a specific
date, through a written cancellation notice issued by the Contracting
Party.
3.3.3.1.1 The Contracting Party shall have no payment obligations
towards the Contracted Party related to any cancelled part of the
request.
3.4. Final Acceptance. Ports requested by the Contracting Party must be
considered as having been accepted (such acceptance is the "Final
Acceptance") with the occurrence of any of the following events,
prevailing the one that happens first: (i) receipt by the Contracted
Party of written notice certifying that the Ports meet the Acceptance
Criteria, or (ii) expiration of the Acceptance Test Period for such
Ports, without rejection notification by the Contracting Party.
4. NEW SERVICES.
5.1. If the Contracted Party is capable of providing any new service
that will allow the Contracting Party to render services to its clients
in a similar way as the one utilized, and jointly with the Contracting
Party's services, but (a) with a general lower cost for the Contracting
Party, or (b) with the same costs for the Contracting Party but with
the addition or improvement of the capacity, effects and functionality
related to the Services (each one of the items (a) and (b) being a "New
Service"), then, (i) the Contracted Party shall promptly notify the
Contracting Party and offer to provide such New Service for the
Contracting Party at a lower or equal cost, and (ii) the Contracted
Party shall allow the Contracting Party to make the full or partial
transition of its services, pursuant to the Contracting Party's
criteria, with no additional cost for the Contracting Party
A-17
ADDENDUM TO AGREEMENT No. CO/TELEMAR/UNA/SIP/▇▇▇▇-▇▇▇▇
TC DIAL IP CONNECTSERVICE - MODALITY ACCESS CONNECT
ADDENDUM No 02 ENTERED INTO BETWEEN AOL
DO BRASIL LTDA. AND TELEMAR NORTE LESTE
S.A.
THE PARTIES:
The parties to the present Agreement are:
CONTRACTING PARTY: AOL DO BRASIL ▇▇▇▇, a limited liability company, with its
main place of business at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ - American
Business Park - Bloco B - 2. andar, enrolled in the National Registry for Legal
Entities (CNPJ/MF) under n. 03.032.579/0001-62, in this act represented pursuant
to its Articles of Association, hereinafter simply called CONTRACTING PARTY, and
CONTRACTED PARTY: TELEMAR NORTE LESTE S.A., a publicly-held corporation, with
its main place of business in the city of Rio de Janeiro, State of Rio de
Janeiro, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ - 5. andar, Bairro Botafogo, enrolled in
the National Registry for Legal Entities (CNPJ/MF) under n degrees
33.000.118/0001-79, in this act represented pursuant to its Articles of
Association, hereinafter simply called CONTRACTED PARTY.
They are also individually called Party and jointly, Parties.
1. FIRST CLAUSE - THE OBJECT
1.1. THE PRESENT ADDENDUM HAS AS ITS OBJECTIVE THE SUPPLY, BY THE
CONTRACTED PARTY, OF A SET OF RESOURCES WHICH SHALL ALLOW THE CONNECTION OF THE
NETWORKS OF THE CONTRACTING PARTY'S IP AND TO THE CONTRACTED PARTY'S AND TO THE
INTERNET, THROUGH TC IP CONNECT SERVICE IN ITS MODALITY ACCESS CONNECT (JOINTLY
DEFINED AS "SERVICES"), INCLUDING, AMONG OTHER SERVICES:
(I) INFRASTRUCTURE OF CONNECTION OF THE CONTRACTING PARTY'S NETWORK WITH
THE INTERNET FOR USE (A) BY THE USERS COMING FROM THE CONTRACTED
PARTY'S NETWORKS IN REGION I OF THE GENERAL PLAN OF GRANTING (GPG) AND
(B) USERS COMING FROM ANY OTHER NETWORKS AND GPG'S REGIONS (WHICH ARE
NOT FROM THE CONTRACTED PARTY'S NETWORKS IN REGION I OF THE GPG)
(HEREINAFTER SIMPLY CALLED "WEB CHANNEL");
(II) DEDICATED INTERCONNECTION DATA CHANNEL OF THE CONTRACTING PARTY'S
NETWORK TO THE CONTRACTED PARTY'S IP NETWORK FOR TUNNELING OF THE
TRAFFIC ARISEN FROM USERS COMING FROM THE CONTRACTED PARTIES NETWORKS
IN REGION I OF THE GPG (HEREINAFTER SIMPLY CALLED "DEDICATED CHANNEL")
(III) DEDICATED INTERCONNECTION DATA CHANNEL OF THE CONTRACTING PARTY'S
NETWORK TO THE CONTRACTED PARTY'S IP NETWORK FOR TRAFFIC EXCHANGE
BETWEEN THE CONTRACTED PARTY'S NETWORK AND THE CONTRACTING PARTY'S
NETWORK (HEREINAFTER SIMPLY CALLED "PEERING").
1.2. TC IP CONNECT SERVICE IN ITS MODALITY ACCESS CONNECT, OBJECT OF
THIS ADDENDUM, SHALL BE PERFORMED IN ACCORDANCE WITH THE SERVICE
CHARACTERISTICS, LISTED IN THIS INSTRUMENT AND IN ITS ADDENDUMS.
1.3. THE CONTRACTED PARTY COMMITS TO PROVIDE ROUTING TO A POINT OF
PHYSICAL INTERCONNECTION WITH THE CONTRACTING PARTY'S FACILITIES, IN A MEETING
POINT DETERMINED BY THE CONTRACTING PARTY WHERE THE DIALED ACCESS TRAFFIC WILL
BE COMMUTED BY THE PARTIES (EACH ONE OF SUCH POINTS, A "MEETING POINT"). THE
MEETING POINT IS THE CONTRACTING PARTY'S FACILITY AT EMBRATEL'S BUILDING IN
MORUMBI, CITY OF SAO PAULO, WHEREBY THE CONTRACTING PARTY MAY CHANGE THE
LOCATION OF SUCH MEETING POINT AT ANY TIME, AT ITS EXCLUSIVE DISCRETION. THE
CONTRACTED PARTY SHALL, AT LEAST, PROVIDE ALTERNATIVE ROUTES FROM ITS
INFRASTRUCTURE TO THE MEETING POINT, IN ORDER TO ELIMINATE SINGLE FAILURE POINTS
IN THE CONTRACTED PARTY'S INFRASTRUCTURE.
2. Second Clause - Contracted Party's Duties:
2.1. TO PROVIDE TC IP CONNECT SERVICE PURSUANT TO THE TERMS AND
CONDITIONS OF TECHNICAL SPECIFICATIONS REQUIRED BY THE CONTRACTING PARTY, AS SET
FORTH IN EXHIBIT II (TECHNICAL SPECIFICATIONS OF EQUIPMENT AND SERVICES),
STRICTLY COMPLYING WITH QUALITY, AVAILABILITY CRITERIA AND PARAMETERS DESCRIBED
IN EXHIBIT III (QUALITY CRITERIA), WHICH INCLUDES MAKING AVAILABLE TO THE
CONTRACTING PARTY THE MANAGERIAL REPORTS DESCRIBED IN EXHIBIT IV (MANAGERIAL
REPORTS) AND PROPERLY DIMENSIONING ITS IP NETWORK SO AS TO ASSURE TO THE
CONTRACTING PARTY'S USERS ACCESS TO THE INTERNET AND TO THE CONTRACTING PARTY'S
CONTENT, AND TO ASSURE INTERNET ACCESS TO THE CONTRACTING PARTY.
2.2. To interconnect interconnection points of the set data channels of
the Contracted Party for IP traffic, hereinafter jointly referred to as "IP
Backbone ", to other Internet backbones, pursuant to adequate speed.
2.3. To make available and to activate the Contracting Party's IP
access to the Contracted Party's IP Backbone, in the speed agreed upon, as
described in Exhibit III (Quality Criteria).
2.4. To keep the TC IP CONNECT Service in full adequate operation so as
to assure its operation twenty-four (24) hours a day, seven (7) days a week,
except for the preventive maintenance periods which shall be informed with
seventy-two (72) hours prior notice. In the cases where prior notice is
technically unfeasible, forty-eight (48) hours prior notice shall be accepted.
In periods of time in which the TC IP CONNECT Service is out of operation the
Contracted Party is not exempted from complying with remaining procedures agreed
upon in the present Addendum.
2.5. To provide the Contracting Party with reports which inform the use
of the contracted circuit (Report of Connection Statistics) and the performance
of the Contracted Party's IP Backbone nucleus (Report on Telemar<180>s IP
Backbone Performance). SUCH reports shall be available for consultation through
the Internet, as set forth in Exhibit IV (Managerial Reports).
2.5.1. The Contracted Party's IP Backbone Performance Report shall
present information about latency, network availability and loss of
packets.
2.5.2. The Connection Statistics Report shall present information about
the utilization rate of the contracted circuit.
2.6. To pro-actively manage the circuit hired by the Contracting Party.
Pro-active management shall be in operation for twenty-four (24) hours a day,
seven (7) days a week. For the effects of this Addendum, "pro-active management"
shall mean the permanent monitoring of the hired circuit, and informing the
Contracting Party in advance with respect to detection of problems and reasons
for circuit interruption.
2.7. To comply with and observe all operational procedures described in
Exhibit VII (Flow of Operational Procedures).
2.8. The Contracted Party agrees never to collect, analyze, stock
and/or make use of any information of the Contracting Party's Users and/or
Visitors who navigate by using TC IP CONNECT Service, including, but not
limiting to: names, residential and commercial addresses, telephone numbers,
logins, e-mails, Web pages, used Internet Services, etc.
2.8.1. The Contracted Party undertakes to keep in full confidentiality
each and all information of the Contracting Party's Users and/or
Visitors who use the TC IP CONNECT Service, as well as to take all the
necessary steps (including through the implementation of adequate
security measures) which would prevent third parties from having access
to any information of the Contracting Party's Users and/or Visitors.
2.9. To activate the Contracting Party's requested Service in the
period of time set forth in Exhibit III of this Addendum.
3. THIRD CLAUSE - CONTRACTING PARTY'S DUTIES
3.1. To effect the payment of the services provided by the Contracted
Party pursuant to form, period of time and conditions set forth in this
Addendum.
3.2. To request to Contracted Party any modifications in the speed of
its IP access to the Contracted Party's IP Backbone with thirty (30) days prior
notice.
3.3. To keep and protect its network, preventing invasion/interference
of third parties, preserving its data, information, hardware and software
resources.
3.4. To supply all information requested by the Contracted Party, which
are necessary for the activation of the TC IP CONNECT Service.
3.4.1. In case the Contracting Party fails to supply the requested
information necessary for the activation of the TC IP CONNECT Service,
the Contracted Party cannot be made responsible for the delay in the
service activation.
2
3.5. To request the Contracted Party to activate or desinstall any of
the optional services which integrate the TC IP CONNECT solution, accordingly to
the hired modality, in writing and by means of a 30 (thirty) days prior notice.
3.6. To make available all the necessary equipment for the activation
of the TC IP CONNECT Service in the Contracting Party's facilities (routers).
3.6.1. Such equipment (hardware and software) must comply with the
specifications defined by the internet Engineering Task Force (IETF),
so as to guarantee the inter-operation of the Contracting Party's
equipment with the Contracted Party's IP Backbone.
3.7. In Region I of the GPG, any future hiring of TC IP CONNECT
Service, object of this Addendum (or other services with equivalent operation,
independently of the used nomenclature) by the Contracting Party shall be
exclusively effected with the Contracted Party, except: (a) in the assumption
set forth in the Eighth Clause of the Agreement, (b) whenever there is the
Contracted Party's express refusal or (c) in the localities where the Contracted
Party does not comply with the minimum quality standards and other necessary
technical conditions, pursuant the terms of the present Addendum and respective
Exhibits.
4. FOURTH CLAUSE - PRICE
4.1. For the rendering services described herein, the Contracting Party
shall pay to the Contracted Party the amounts detailed in Exhibit I to this
Addendum.
4.2. All the prices due to this Agreement shall be charged in REAIS
(R$), in the collection document that shall be sent to:
Diretor de Operacoes [Operations Director]
AOL Brasil
Av. Industrial, 600 - 2(0)andar
▇▇▇▇▇ ▇▇▇▇▇ - SP
CEP 09080-500
5. FIFTH CLAUSE - DELIVERY AND ACCEPTANCE OF SERVICES
5.1. The Contracting Party shall accept or reject the Services, object
of the present Agreement in up to five (5) weekdays after the delivery of each
one of the channels by the Contracted Party, through the delivery to the
Contracting Party of a respective Instrument of Acceptance.
5.1.1. The Contracting Party can reject the Instrument of
Acceptance exclusively in cases in which non-conformity with the technical
specifications contained in the present Addendum and its Exhibits are evidenced.
5.2. After such term, and upon absence of manifestation by the
Contracting Party, the channels will be considered activated and their delivery
date shall be considered as of the activation date, for the collection purposes.
5.3. The Instrument of Acceptance's model shall be that committed by
the Parties in Exhibit VIII to this Addendum.
6. SIXTH CLAUSE - IMPLEMENTATION TIME SCHEDULE
6.1. The Contracted Party acknowledges that it is of major importance
to the efficient rendering of the TC IP CONNECT Service the compliance with the
terms jointly agreed by the Parties, in order to enable the implementation,
pursuant to this Addendum and in its Exhibits, of the rendering of TC IP CONNECT
Service.
7. SEVENTH CLAUSE - DISCOUNTS DUE TO FAILURE IN THE RENDERING OF THE SERVICE
7.1. Should any problems impend the rendering of TC IP CONNECT Service,
and consequently result in suspension or unavailability of the full use of the
Service by the Contracting Party, than the Contracted Party shall solve such
problems in the maximum term set forth in Exhibit III, in order to guarantee the
availability standard.
3
7.1.1. In case the problems caused by and/or of the Contracted Party's
responsibility are not solved within such a period of time, than the
Contracted Party shall pay to the Contracting Party, until the
thirtieth (30th) day of the month subsequent to that of the problems'
occurrence, the amount obtained through the application of the
following formula:
n
[(Sigma Ti)-1,08]
i=1 c n
F = ------------------------------ X 47 X --- applicable when [Sigma Ti] > 1,08h
720 34 i=1
where:
F is the penalty due to interruption in the Service(s) in the
respective month (in thousands of R$), corrected by the variation of
the National Index of Prices (IGPM-DI) of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Foundation, every twelve (12) months.
Ti is the period of i-times interruptions occurred in the respective
month (in hours)
N is the number of interruptions in the respective month.
C is the full capacity installed in Mbps, as in Exhibit I.
For the purpose of calculating the penalty above, localities where
interruptions were requested by the Contracting Party or where duly
programmed preventive maintenance occurred shall not be taken into
consideration.
7.1.2. Exhibit III contains the description of quality parameters,
availability or level of service (SLA), with respect to which the
penalties set forth in Exhibit III of the present Addendum are applied
to the Contracted Party.
8. EIGHTH CLAUSE - VALIDITY TERM
8.1. THE VALIDITY TERM FOR THIS ADDENDUM IS OF THIRTY-SIX (36) MONTHS,
STARTING ON THE DATE OF ITS EXECUTION, ("VALIDITY"), AND HAVING THE CONTRACTING
PARTY THE OPTION TO EXTEND THE TERM OF THIS ADDENDUM FOR THREE EQUAL SUCCESSIVE
PERIODS OF TWELVE (12) MONTHS, THROUGH NOTIFICATION TO THE CONTRACTED PARTY
LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE VALIDITY OR ANY OF ITS
EXTENSIONS.
9. Ninth Clause - Termination
9.1. BESIDES THE ASSUMPTIONS EXPRESSLY SET FORTH IN OTHER CLAUSES OF
THE PRESENT ADDENDUM, ANY OF THE PARTIES CAN LEGALLY TERMINATE THE PRESENT
ADDENDUM, WITH NO LIENS, INDEPENDENTLY OF ANY JUDICIAL OR EXTRA-JUDICIAL
PROCEDURE OR CLAIM AND SIMPLY THROUGH WRITTEN NOTIFICATION TO THE OTHER PARTY,
IN CASE SUCH PARTY:
(I) TRANSFERS TO THIRD PARTIES, WHOLLY OR PARTIALLY, ITS RIGHTS AND DUTIES
ARISEN FROM THIS ADDENDUM, WITHOUT THE PREVIOUS WRITTEN AUTHORIZATION
OF THE OTHER PARTY; AND
(II) FAILS TO COMPLY WITH THIS ADDENDUM AND ITS EXHIBITS, FAULT WHICH IS NOT
CORRECTED WITHIN A (60) SIXTY-DAY TERM AFTER THE OTHER PARTY'S
NOTIFICATION.
9.2. THE CONTRACTING PARTY CAN CANCEL THE SERVICES SET FORTH IN CLAUSE
1.1.(I) ABOVE, AT ANY TIME, WITHOUT INCURRING THE PAYMENT OF ANY FINES,
PENALTIES OR INDEMNIFICATIONS, IN THE CASE OF CANCELLATION OR TERMINATION OF THE
FIRST TC IP DIAL ADDENDUM.
9.3. THE PARTIES EXPRESSLY AGREE AND FORTHWITH ACCEPT THAT THE PARTY
("INFRINGING PARTY") THAT GIVES RISE TO THE TERMINATION OF THE PRESENT ADDENDUM,
BEFORE THE CONTRACTUAL TERM, IN THE HYPOTHESES SET FORTH IN ITEM 9.1 ABOVE,
SHALL BE SUBJECT TO THE PAYMENT OF COMPENSATORY PENALTY TO THE OTHER PARTY
("INNOCENT PARTY"), WITHIN A (5) FIVE-DAY-TERM COUNTED AS OF THE TERMINATION
DATE.
4
THE COMPENSATORY PENALTY HEREIN SET FORTH SHALL BE CALCULATED THROUGH THE
APPLICATION OF THE FOLLOWING FORMULA:
F = P x MM
WHERE:
F = PENALTY AMOUNT TO BE PAID BY THE INFRINGING PARTY TO THE INNOCENT PARTY;
P = PRICE FOR THE SERVICES IN THE MONTH PREVIOUS TO THE TERMINATION.
MM = NUMBER OF MONTHS REMAINING TILL THE EXPIRATION OF THE PRESENT ADDENDUM.
9.4. IN CASE OF TERMINATION CAUSED BY THE CONTRACTED PARTY, PRIOR TO
THE EXPIRATION OF THE VALIDITY PERIOD OF THE PRESENT ADDENDUM, THE CONTRACTED
PARTY SHALL CONTINUE THE RENDERING OF THE SERVICES TO THE CONTRACTING PARTY,
PURSUANT TO THE TERMS OF THIS ADDENDUM AND ITS EXHIBITS, AND PURSUANT TO THE
SAME CONDITIONS AGREED UPON, FOR THE MINIMUM TERM OF NINETY (90) DAYS, AT THE
CONTRACTING PARTY'S EXCLUSIVE DISCRETION, AS OF THE DATE OF SUCH TERMINATION,
WITH NO PREJUDICE THE PAYMENT FOR SUCH THE SERVICES AS PROVIDED IN THE PRESENT
ADDENDUM AND ITS EXHIBITS BY THE CONTRACTING PARTY, AS WELL AS THE PAYMENT OF
PENALTY, BY THE CONTRACTED PARTY, IF IT IS THE CASE, AS SET FORTH IN ITEM 9.3.
▇.▇.▇▇ CASE OF EXPIRATION OR TERMINATION OF THIS ADDENDUM, THE PARTIES
COMMIT TO STOP THE USE AND RETURN TO THE PARTY WHICH OWNS IT, THE EVENTUAL
CONFIDENTIAL INFORMATION RELATED TO THIS ADDENDUM AND ITS EXHIBITS, AS WELL AS
ANY CODES, ACCESSES OR ADDRESSES SUPPLIED BY BOTH THE PARTIES.
10. Tenth Clause - Force Majeure
10.1. NONE OF THE PARTIES SHALL BE CONSIDERED IN DEFAULT OF ITS DUTIES
SET FORTH IN THE AGREEMENT OR IN THIS ADDENDUM IF AND PROVIDED THAT ITS
PERFORMANCE IS DIRECTLY OR INDIRECTLY PREVENTED OR DELAYED BY ACTS OF GOD AND/OR
FORCE MAJEURE EVENTS, AS SET FORTH IN THE BRAZILIAN CIVIL CODE (HEREINAFTER ANY
OF SUCH EVENTS SHALL BE CALLED "FORCE MAJEURE EVENT"). NOTWITHSTANDING WHAT HAS
BEEN DETAILED HEREIN, IF THE CONTRACTED PARTY'S SUPPLIER OR SUB-HIRED FAILS
TO COMPLY WITH ITS DUTIES TAKEN OVER IN THE LATTER'S AGREEMENT WITH THE
CONTRACTED PARTY, THIS SHALL NOT CONSTITUTE A FORCE MAJEURE EVENT FOR THE
CONTRACTED PARTY, UNLESS SUCH FAULT, ON THE PART OF THE SUPPLIER, IS CAUSED BY A
FORCE MAJEURE EVENT.
10.2. Concerning any Force Majeure Event, the damaged Party shall not
be compelled to comply with its duties, then affected during the period through
which such circumstances remain, and such Party shall exert its best efforts to
resume its performance, as soon as possible. Any Party, whose performance is
prevented or delayed by the Force Majeure Event shall forthwith notify the other
Party through telephone contact (to be confirmed in writing in up to two (02)
weekdays as of the outset of such delay) and describe in detail the Force
Majeure Event. In so far as one Party can reasonably foresee that it will be
affected by a Force Majeure Event, such Party shall immediately notify the other
Party of such foreseen delay and describe, in as much detail as possible, the
Force Majeure Event.
10.3. If a Force Majeure Event prevents or delays the Contracted
Party's performance for more than thirty (30) consecutive days, then, the
Contracting Party can hire any third parties for the services set forth in this
Addendum, without incurring the Parties any fines or penalties, being
ascertained that, subsequent to that interruption of the service providing by
the Contracted Party, the Contracting Party commits to restore the provisions of
this Addendum and its Exhibits in up to thirty (30) consecutive days.
11. ELEVENTH CLAUSE - MISCELLANEOUS
11.1. THE CONTRACTED PARTY BEARS NO RESPONSIBILITY WHATSOEVER FOR THE
UNDUE USE OF THE TC IP CONNECT SERVICE BY ANY OF THE FINAL OR THIRD PARTY'S
USERS.
11.2 This Addendum's items, as well as its Exhibits related to
confidentiality, shall survive at the expiration or terminatION of this
Addendum.
11.3. The Exhibits mentioned hereinbelow, initialed by the Parties,
integrate this Addendum for the legal purposes.
5
11.4. Each and any modification, alteration or addendum to the present
Addendum shall only be valid if performed through a written document, signed by
all the Parties.
11.5. In case of any divergence between the present Addendum and any of
its Exhibits, the provisions of this Addendum shall always fully prevail.
11.6. This Addendum constitutes the full agreement between the Parties,
related to the subject matter in question, replacing each and any document
produced about the same subject. Each and any modification, alteration or
addendum to the present Addendum shall only be valid if performed through a
written document, signed by all the Parties.
11.7. Each Party states and guarantees that (i) it has the necessary
power and authority to hire and comply with the duties and transactions
described in the Agreement and in the present Addendum and (ii) the execution,
the delivery and the compliance with the Agreement and the present Addendum and
the accomplishment of the transactions described by the Agreement and the
present Addendum have been duly authorized in accordance with the necessary
procedures of the respective Party.
11.8. In case any of the terms of this Agreement or of this Addendum
eventually conflict with the law under which the Agreement and this Addendum are
constituted or if any of the terms herein set forth is considered invalid by a
court with jurisdiction over both the Parties, the rest of the Agreement or of
this Addendum shall remain in full validity. In case the invalidity of the said
terms prevents the compliance of the fundamental purpose of this Agreement, the
Contracted Party and the Contracting Party shall forthwith start negotiations in
good faith to refund the affected Party of such a fact of the value (either cash
or in services) equivalent to the amount that such Party would have received in
case such terms had not been considered invalid.
11.9 In the assumption that the Contracted Party is forbidden to
provide the services hired by the present instrument, by order of the National
Agency of Telecommunications (ANATEL), provided that such a prohibition had not
stemmed from acts of the Contracted Party's responsibility, including, but not
limiting, failing to comply with the present concession agreement or by virtue
of any modification in the applicable legislation in force, the present
instrument shall be forthwith terminated through the Contracted Party's written
notice to the Contracting Party, informing that it shall be immediately
terminated. The Agreement's termination for such a reason, even if on the
grounds of acts of the Contracted Party's responsibility shall not grant any of
the parties any right to indemnification, reparation and/or compensation and the
Contracted Party shall have to exert its best efforts to assure the continuity
of the hired service.
11.10. Except for the cases where the previous liberation to the other
Party is impossible by law, none of the Parties shall issue any notices to the
press, advertisements and marketing material, advertising or other promotional
materials related to the Agreement or to the present Addendum or that make
reference to the other Party or to its commercial names, trademarks or service
marks without the previous written authorization of the other Party, which shall
not be denied or put off without feasible reasons.
11.10.1 Notwithstanding the aforedetailed, (i) any of the Parties can
issue press releases and other notices, as requested by the United
States Securities and Exchange Commission, without the other Party's
authorization, and (ii) the Contracting Party can issue press releases
solely mentioning the existence of this Addendum, without the
Contracted Party's authorization.
11.11. ALL THE NOTICES, REQUISITIONS, DEMANDS AND DETERMINATIONS UNDER
THIS AGREEMENT (EXCEPT FOR COMMUNICATIONS OF OPERATIONAL ROUTINE AND THE ONES
HEREBY SPECIFIED) SHALL BE IN WRITING AND SHALL BE CONSIDERED AS HAVING BEEN
PROPERLY DELIVERED (I) WHEN DELIVERED IN HAND, (II) ONE (01) WEEKDAY AFTER
HAVING BEEN HANDED OVER TO AN EXPRESS MAIL SERVICE, WITH A RELIABLE MONITORING
SYSTEM OF DELIVERY, (III) FOUR (04) WEEKDAYS AFTER THE POSTAGE DAY WHEN SENT BY
MAIL, REGISTERED LETTER, WITH COMPULSORY RECEIPT, PRE-PAID STAMPING AND
ADDRESSES, AS FOLLOWS:
FOR THE CONTRACTING PARTY: FOR THE CONTRACTED PARTY
AOL BRASIL LTDA. COPIES TO:
▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ - ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇ - ▇▇. andar - CEP 05693-000 - Sao
Paulo - SP - Brasil
6
Attn: Diretor Juridico [Legal Director]
Fax: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
AOL BRASIL LTDA.
▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ - ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇
- ▇▇. andar - CEP 05693-000 - Sao Paulo - SP - Brasil
Attn: Diretor de Operacoes [Operations Director]
Fax: ▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
The Parties forthwith agree that the above addresses can be altered
provided that one Party gives the other previous notice of this new address and
the date when it will become effective.
11.12. Nothing herein contained shall be interpreted as creation of any
representation, partnership or any other type of company formation between the
Parties.
11.13. The Parties make themselves responsible for the payment of
salaries and other labor duties, of social security and social contributions
related to their employees, related to the Services to be provided,
responsibility which falls fully to the respective Party. Besides, each Party
assumes full labor responsibility for their personnel, including social, social
security, death, administrative, disciplinary, fiscal and/or civil, being such
Party considered the sole employer, there being no connection between its
employees or representatives with the Adverse Party.
11.13.1. In case any complaints or judicial claims are filed against
one of the Parties by an employee, director, ex-employee or ex-director
of the Adverse Party, due to its functions related to this agreement,
such adverse Party agrees to substitute the other Party as defendant in
such a complaint or claim. In case this substitution is unfeasible, the
Adverse Party agrees to refund the other Party for any expenditures
(including attorneys' fees for loss of suit) incurred by such Party
in THE filed complaint or claim.
11.14.The Parties forthwith agree that any duties that remain in force
after the termination, the cancellation or the expiration of this Agreement, of
this Addendum and its Exhibits shall survive and remain in force, as expressly
set forth in this Addendum or in its Exhibits.
11.15. Both the Parties shall act in compliance with all the laws and
regulations which are relevant to its respective performance, pursuant to this
Agreement and/or this Addendum. The Contracted Party shall not collect, ▇▇▇,
file or reveal any personal data related to the Contracting Party's members.
Besides, the Contracted Party shall not violate the communication secrecy of the
Contracting Party's users and final consumers, via services.
11.16. The Parties agree that they shall not use the names, logotypes
or trademarks of the other Party or of its Affiliates, without the previous
written consent of the latter.
11.17. No omission or delay of any of the Parties in performing any of
the rights herein contained shall be considered as waiver or renewal, nor can
any isolate or partial performance of any right herein set forth, prevent any
future or ampler performance of such right or of any other right.
12. TWELFTH CLAUSE - DEFINITIONS
FOR THE PURPOSES OF THE PRESENT ADDENDUM, BESIDES THE DEFINITIONS SET FORTH IN
THE OTHER ITEMS, THE FOLLOWING TERMS AND EXPRESSIONS MEAN:
"ANATEL" MEANS NATIONAL AGENCY OF TELECOMMUNICATIONS.
"Content" MEANS A SET OF INFORMATION AND SERVICES OFFERED BY THE CONTRACTING
PARTY AND MADE AVAILABLE FOR CONSULTATION AND USE BY ITS SUBSCRIBERS, USERS AND
VISITORS.
"General Agreement" MEANS THE AGREEMENT FOR SUPPLYING COMMUTED FIXED TELEPHONE
SERVICE AND OTHER TELECOMMUNICATIONS SERVICE AND INTERNET IP SERVICE, ENTERED
INTO BETWEEN THE PARTIES, ON THIS DATE.
7
"INTERNET" means a world net which gathers, connects and interconnects several
computer nets, making use of TCP/IP protocol, controlled in Brazil by the
Management Committee and abroad by ICANN.
"CONFIDENTIAL INFORMATION" means all information and documents of any kind,
necessary to allow the attainment of the object of this Agreement, which are
delivered to one of the Parties by the other, or by its advisors, auditors,
accountants, attorneys, representatives, managers or employees, who related to
the Parties' business or to the businesses of its clients, suppliers AND
associates, including, but not limiting to management data, financial data and
market strategies.
"GPG" means the General Plan of Granting approved by Decree n degrees 2.534 of
April 2, 1998.
"IP NETWORK" means the Contracted Party's IP Network, an integrant part of the
Internet network.
"NETWORK" or "NETWORK" means the set of equipment for communication and data
processing between computers, servers and other equipment.
"CFAS" means the Commuted Fixed Access Service.
"TAXES" means each and every tax, fees, compulsory loans and contributions,
including but not limiting to the contributions to PIS [Program of Social
Integration] and COFINS [Contribution for Financing Social Security], among
other taxes, related to this Agreement and imposed by the applicable
legislation.
"USERS" means all the Contracting Party's users who, making use of the local
CFAS of the CFAS operator, connect to the Internet, free of charge, through the
ports made available by the Contracted Party for Dialed Access to the Internet.
"Visitors" MEANS ALL THE OTHER USERS WHO ARE NOT THE CONTRACTING PARTY'S USERS
AND WHO ARE CLIENTS OF THE CONTRACTED PARTY'S IP NETWORK.
13. THIRTEENTH CLAUSE - JURISDICTION AND APPLICABLE LAW
10.1. The present Agreement shall be governed by the Brazilian Law.
102. The Parties elect the central court of the city of Rio de Janeiro
to settle eventual controversies stemming from this Addendum and its Exhibits.
In witness whereof, they sign the present Addendum in three (03) counterparts of
equal form and content in the presence of the witnesses below:
▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇.
TELEMAR NORTE LESTE S.A.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
SALES MANAGER
AOL DO BRASIL LTDA
/s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇▇▇▇
LEGAL DIRECTOR
8
WITNESSES:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
1:▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sampaio
/s/ ▇▇▇▇▇▇▇ FONZAGHI
-------------------------------------
2:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇
EXHIBITS SUMMARY
EXHIBIT I PRICES
EXHIBIT II TECHNICAL SPECIFICATIONS OF EQUIPMENT AND SERVICES
EXHIBIT III QUALITY CRITERIA
EXHIBIT IV ONLINE AND OFFLINE MANAGERIAL REPORTS
EXHIBIT V IMPLANTATION OF TIME SCHEDULE
EXHIBIT VI TECHNICAL DESCRIPTION OF SOLUTION
EXHIBIT VII FLOW OF OPERATIONAL PROCEDURES
EXHIBIT VIII FORM FOR REQUEST OF SERVICE
ANEX IX MANUAL OF BASIC INFRA--STRUCTURE
****************************************************************
EXHIBIT I - PRICES
The Contracting Party shall pay the amount hereinbelow for hiring TC IP CONNEC
Service
Service Description Amount R$ (With Taxes)
------------------- ---------------------
34 Mbps IP Port [**] REAIS (R$ [**])
34 Mbps Local Access [**] REAIS ([**])
All the taxes are included in the amounts hereinbefore.
Dedicated IP Port: ISS [Tax on Services], PIS [Social
Integration Program] and COFINS [Contribution for Financing Social
Security]
Local Access Circuit: ICMS [Tax on Goods and Services], PIS
[Social Integration Program] and COFINS [Contribution for Financing
Social Security]
The Contracting Party just commits to hire, according to the aforementioned
specifications, the capacity of the necessary IP traffic to attend to its Users
of Region I of the GPG (Web Channel), coming from the Contracted Party's TC DIAL
IP Network.
No payment will be due for the "Dedicated Channel" or for the "PEERING".
This capacity can be modified according to the need of the
Contracting Party's subscribers' traffic.
The modification needs of this capacity shall be informed to the
Contracted Party in due time.
**********************************************************************
*********************************************
EXHIBIT II - TECHNICAL SPECIFICATIONS OF EQUIPMENT AND
SERVICES
1. CONTRACTING PARTY'S ROUTERS AND SWITCHES
This equipment must come from first line suppliers; meet the
specific configuration needs of each locality (POP)and be flexible so
as to accept including, but not limiting QoS, CoS and filters.
10
2. SERVICES MONITORING OF THE CONTRACTED PARTY'S NETWORK
The Contracted Party shall make available to the Contracting
Party the devices which can allow the monitoring (in absolute and
percentage terms) of the occupation of the ports and data circuits, in
real and historic time. ********************************
***********************************************************************
EXHIBIT III- QUALITY CRITERIA
1. BASIC CRITERIA
The regularity and the non-interruption of the services and connections of the
Contracting Party's subscribers to the Internet and to the Contracting Party's
Content are of major importance. Thus, the quality criteria for such Service,
purpose for supplying this TC IP CONNECT's agreement, include:
1.1. real time monitoring of the occupation of the Contracted Party's
Networks' data circuits, associated with the access liNKS to the
Contracting Party, offering to the Contracting Party online remote
monitoring of the communication ports of the routers, via the page made
available in the Internet and protected by a password.
1.2.guarantee of full availability of attendance at the Time of
Greatest Movement (TGM) of the operation, offering to the Contracting
Party's Subscribers, IP band with average capacity of 10 kbps;
1.3.managerial reports and logs of traffic information collected and
used for the generation of the monitoring graphs in the access network,
containing all the samples of the variables used in preparing such
graphs, percental and absolute occupation (in mbps) per router
communication port.
2. SLA GUARANTEE
The failure recovery time for the access links of the Dedicated Channel and the
Web Channel shall not exceed thirty (30) minutes, taking into consideration the
period between the beginning and the effective solution of the failure,
independently of the time of the occurrence opening.
2.1. The performance indexes to be used as reference for the Guarantee
of Service Level (SLA) of the Contracted Party's Access Network are:
Parameter Amount
--------- ------
Average monthly loss of packets in the Contracted Party's Network
(maximum amount) [**]%
Monthly Availability for the Service (minimum amount) [**]%
Yearly Availability for the Service (minimum amount) [**]%
Throughout all the days of the month, every five (5) minutes, the Contracting
Party shall effect information collection of latency, rate of loss of packets
and availability of routers' ports used in the interconnection between the
Contracted Party's Network and thE Contracting Party's Network.
The measurements of latency and loss of packets shall form the time average,
daily average and, lastly, the monthly average, which shall be compared with the
value set forth for the respective parameter.
SLA OF THE CONTRACTED PARTY'S ACCESS NETWORK SHALL BE MONTHLY AND YEARLY
CALCULATED AS THE AVERAGE OF THE CONNECTION AVAILABILITY BETWEEN THE CONTRACTED
PARTY'S NETWORK AND THE CONTRACTING PARTY'S NETWORK, IN ACCORDANCE WITH THE
FORMULA:
11
n
[Sigma](Ttotali-TINDi)
i=1
Availability = ---------------------- X 100%
n X Ttotali
where:
Ttotal i is the total time for the i data links in the period taken
into consideration.
Tindi is the availability time of the i link in the period taken into
consideration.
N is the number of installed links in the period taken into
consideration.
IF THE CONTRACTED PARTY FAILS TO COMPLY WITH ANY SLA ITEM, THEN,
ADDITIONALLY TO ANY OTHER RIGHTS THAT THE CONTRACTING PARTY MAY HAVE,
THE CONTRACTED PARTY SHALL, WITH NO ADDITIONAL COST FOR THE CONTRACTING
PARTY:
(I) INVESTIGATE AND REPORT THE CAUSES OF THE PROBLEM;
(II) ADVISE THE CONTRACTING PARTY ABOUT THE MEASURES THAT ARE BEING
TAKEN FOR THE SOLUTION OF SUCH PROBLEMS;
(III) CORRECT THE PROBLEM SO THAT SLA IS COMPLIED WITH AS SOON AS
POSSIBLE; AND
(IV) ADOPT ADEQUATE PREVENTIVE MEASURES TO PREVENT THE PROBLEM'S
RE-INCIDENCE.
FAILING TO COMPLY WITH SLA IN FOUR (4) MONTHS ALONG THE YEAR OR NON-COMPLIANCE
WITH THE YEARLY SLA SHALL COMMIT THE CONTRACTED PARTY TO MAKE AVAILABLE ENOUGH
ADDITIONAL CAPACITY, IN A DIVERSE PHYSICAL ROUTE, SO AS TO ALLOW SLA'S
COMPLIANCE, WITH NO ADDITIONAL BURDEN FOR THE CONTRACTING PARTY.
PROGRAMMED INTERRUPTIONS REQUESTED BY THE CONTRACTING PARTY OR PREVENTIVE
MAINTENANCE SHALL NOT BE ACCOUNTED FOR IN THE CALCULATION OF THE SERVICE
AVAILABILITY.
THE SERVICES SHALL COMPLY WITH OR EXCEED THE PERFORMANCE STANDARDS IDENTIFIED IN
THIS EXHIBIT. WITH NO LOSS OF THE OTHER CONTRACTING PARTY'S PREROGATIVES, IF THE
CONTRACTED PARTY FAILS IN THE ATTENDANCE OF ANY SERVICE LEVEL, THE CONTRACTED
PARTY SHALL, WITH NO ADDITIONAL COST FOR THE CONTRACTING PARTY:
o INVESTIGATE AND REPORT THE CAUSES OF THE PROBLEM;
o ADVISE THE CONTRACTING PARTY ABOUT THE MEASURES THAT ARE BEING
TAKEN FOR THE SOLUTION OF SUCH PROBLEMS;
o CORRECT THE PROBLEM SO THAT SLA IS COMPLIED WITH AS SOON AS
POSSIBLE; AND
o ADOPT ADEQUATE PREVENTIVE MEASURES TO PREVENT THE PROBLEM'S
RE-INCIDENCE
2.2. SLA SERVICE
The Service shall:
o have [**]% availability, being that it can have a maximum of
interruptions amounting to [**] hours per year ([**]% yearly
availability), a maximum of interruptions amounting to [**]
hours per month and one interruption, isolatedly, cannot
exceed the ([**])[**] limit, being that the preventive
maintenances will not be accounted for as interruptions;
12
o have the maximum occupation of [**]% of the installed
capacity. Whenever the occupation amount of [**]% is attained,
the Contracted Party shall make arrangements, in up to [**]
([**]) days subsequent to the formalization of the established
needs between the Parties, for the expansion of the installed
capacity.
The maximum latency between the Contracting Party's router and the Contracted
Party's router shall be the maximum of 10 ms.
Both the Contracted Party and the Contracted Party shall exert their best
efforts for the Service to have the maximum redundancy possible so as to prevent
single failure points in the architecture of the involved networks. For such,
they can even, but not limiting to, use links and distinct and redundant
routers.
3. PREVENTIVE MAINTENANCE
Preventive maintenance openings shall occur on Tuesdays and Thursdays, provided
that they do not fall on holidays, from five (5) a.m. to seven (7) a.m.
The Contracted Party shall advise the Contracting Party at least seventy-two
(72) hours in advance, informing which localities and elements of the Contracted
Party's network will be affected.
Exceptions to the above determinations shall be previously agreed upon between
the Parties, case by case.
4. REQUESTS FOR REPAIRS.
The Contracted Party shall make available to the Contracting Party a telephone
number, of free access (0800), twenty-four (24) hours a day, including
Saturdays, Sundays and holidays, three hundred and sixty-five (365) days a year,
for opening of calls and registers for repair requests and re-establishment of
the rendered services.
In case of occurrence of any operational failure in the Contracted Party's
Network, the Contracted Party commits to immediately advise the Contracting
Party's operational department, detailing corrective measures in process of
execution, as well as the time foreseen for the repair. When the Contracted
Party or the Contracting Party detect one problem, should be open a called for
the repair solicitation and from this moment will be unleash the necessary
provide to found the solution. (...)
*******************************************************************************
******************************************
EXHIBIT IV - ONLINE AND OFFLINE MANAGERIAL REPORTS
The Contracted Party commits to:
1. To supply daily reports with a minimum interval of five (5) minutes between
collections, of the communication ports of the edge Routers with the Contracting
Parties, including, but not limiting to:
Supplying daily reports with a minimum interval of five (5) minutes
between the collections, of the data links appointing, but not limiting
to:
o Designation of the circuit (online identification of circuit)
o Direction of the data flow and use of the channel in real time
(MRTG or similar)
o Loss of packets (online)
o Latency (online)
13
o IP Address of interface and band(s) of the link(s) (online)
o Average and minimum Round Trip Time (RTT) and RTT's
monthly standard deviation.
2. Periodically supply logs reports (offline) (preferably every fifteen days)
with the collected information for the preparation of online graphs and reports
(MRTG type or similar). Such information shall provide the Contracting Party
with enough information to re-generate the same graphs presented in the
monitoring of the online events.
*******************************************************************************
**********************************************
EXHIBIT VI - TECHNICAL DESCRIPTION OF THE SOLUTION
TC-IP-Connect is a solution for providing dialed access to the Internet with
high quality and reliability, which makes available the most modern network
infra-structure and advanced management to companies that wish to act as
Internet service providers, outsourcing the necessary infra-structure. The
solution grants the Contracting Party attendance of the Contracted Party's IP
Backbone in Region I and its interconnection with the other National and
International IP Backbones, so as to offer IP transit to the Contracting Party's
subscribers and users.
When hiring TC IP CONNECT, the Contracting Part becomes apt to offer Internet
access to its users, clients, partners and suppliers. The Contracted party shall
make available an infrastructure capable of connecting them to the Internet,
within the quality standards set forth in this agreement.
TC IP CONNECT shall allow the Contracting Party to keep focus in its clients,
enjoying its high quality in the rendered service, outsourcing part of the
infra-structure to Internet access and being its management under the Contracted
Party's responsibility, with the possibility of Remote Monitoring, on the part
of the Contracting Party of the communication interfaces associated to the
available Accesses between the Contracted Party's and the Contracting Party's IP
Networks.
1. TOPOLOGY OF THE SOLUTION
The connection model, exclusive for the delivery of the TC IP CONNECT Service to
the Contracting Party, has been detailed in the figure below:
[GRAPHIC]
The service management is 24x7x365. At any instant there is a specialized
professional monitoring the performance and assuring the availability of the
dialed access service to the Internet.
14
TC IP CONNECT has its quality acknowledged by Cisco, having received the seal
"Cisco Powered Network -CPN" to attest it. The routers used all are of them last
generation Cisco equipment, assuring high quality connection and extreme
reliability.
*******************************************************************************
**************************************************************
EXHIBIT VII - FLOW OF OPERATIONAL PROCEDURES
This document sets forth the scale for service failures of the Contracted
Party's Network.
The Flow of Operational procedures shall be detailed, by joint consent between
the Parties in up to fifteen (15) days after the execution of this Addendum,
compromising the Contracted Party's and the Contracting Party's operational
flows of the attendance teams, the operation and the maintenance.
Amongst the aspects to be approached by the detailing of the Flow of Operational
procedures are:
1. Methodology and procedures for the openings, follow-up and
closing of occurrences;
2. Follow-up of the Operational Flow;
3. Diagram of the Operational Flow;
4. Contacts for the scale of occurrences (see chart below to be
filled in and periodically updated by joint consent by the
companies)
5. Scale chart and Recurrence of Problems
Scale Time and Responsible People (example to be filled in):
Level Opening Time Name / Position
----- ------------ ---------------
Service Operation of the Contracted Party's Network
Critical Immediate Coordinator/Manager/Superintendent/Director
0800-XXXXXX
----------------------------------------------------------------------------------------
> 2 hs Service Manager of the Contracted Party's Network
High
> 3 hs Superintendent/Director
----------------------------------------------------------------------------------------
> 4 hs Service Manager of the Contracted Party's Network
Average
> 5 hs Superintendent/Director
----------------------------------------------------------------------------------------
> 6 hs Service Manager of the Contracted Party's Network
Low
> 8 hs Superintendent/Director
----------------------------------------------------------------------------------------
15
1. CONTACTS FOR THE SCALES
Center of Services Management of the Contracted Party's Phone: 0800-XXXXXX
Network
EMAIL_:_▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Name of the Services Manager of the Contracted Party's Phone: XX XXXX XXXX
Network Cellular: XX XXXX XXXX
EMAIL_:_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Name of the Services Superintendent of the Contracted Phone: XX XXXX XXXX
Party's Network Cellular: XX XXXX XXXX
EMAIL_:_▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Name of the Services Director of the Contracted Party's Phone: XX XXXX XXXX
Network Cellular: XX XXXX XXXX
EMAIL_:_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
2. ACCESS VIA WEB
The reports of the Contracted Party's Network are available in URL with user's
name and password, in accordance with the information below:
URL:▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇.▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Username: name of login
Password: name of login
3. TECHNICAL SUPPORT
A specialized team of the Center of Management of Network shall be available
twenty-four (24) hours a day, seven (7) days a week to carry out technical
support, including the maintenance of the access circuit to the Internet.
*******************************************************************************
EXHIBIT VIII - INSTRUMENT OF ACCEPTANCE
Instrument of Pegasus Request
[LOGO} TELEMAR Technical No OCS
Acceptance
----------------
(See: 0101)
SERVICE NAME
Designation of the Circuits Installation Date
Date of Beginning of Tests
Site Pegasus Acceptance Date
Point A
Corporate Name
National Registry of Legal State Enrollment
Entities
Site Address
Cep [Zip] City Federation State
Local Contact Phone:
Remote Contact Phone.:
Condominium Contact Phone.:
Technician
Description of Equipment:
Transmission Equipment / Type
Assets
Slot Port
Interface Link Speed
Protocol CIR SPEED
(JUST FOR DIGITAL DATE)
IP Address - Interface WAN
Address Mask
IP Address - Interface LAN
Address Mask
INTERFACE VOZ - 0: [ ] VOIP [ ] VOFR
CLIENT SIGNALIZATION TYPE: [ ] E&M [ ] FXS [ ] FXO
TYPE OF LMI: [ ] ANSI [ ] CCITT [ ] VENDOR FORUN
EXTERNAL ROUTER PROTOCOL: [ ] RIP I [ ] RIP II [ ] OSPF [ ] BGP4
[ ] STATIC [ ] IGRP [ ] EIGRP
16
POINT B
--------------------------------------------------------------------------------
Client
--------------------------------------------------------------------------------
Site Address
--------------------------------------------------------------------------------
CEP{ZIP] City Federation
Unit
--------------------------------------------------------------------------------
Local Contact Phone.:
--------------------------------------------------------------------------------
Remote Contact
Condominium Contact Phone.:
--------------------------------------------------------------------------------
Techinician
--------------------------------------------------------------------------------
Client Technical Responsible: __________________________
Name:
Descricao Equipamentos:
Equipment Transmission / Type
--------------------------------------------------------------------------------
Assets
--------------------------------------------------------------------------------
Slot Port
--------------------------------------------------------------------------------
Interface Link Speed
--------------------------------------------------------------------------------
Protocol
CIR Speed
--------------------------------------------------------------------------------
Just for Digital Date)
--------------------------------------------------------------------------------
Ip Address Interface Wan
--------------------------------------------------------------------------------
Address Mask
--------------------------------------------------------------------------------
Ip Address Interface Lan
--------------------------------------------------------------------------------
Address Mask
--------------------------------------------------------------------------------
Interface VOZ - 0: [ ] VoIP [ ] VoFR
Client Signalization Type: [ ] E&M [ ] FXS [ ] FXO
LMI Type: [ ] ANSI [ ] CCITT [ ] VENDOR FORUN
External Routing Protocol: [ ] RIP I [ ] RIP II [ ] OSPF [ ] BGP4
[ ] STATIC
[ ] IGRP [ ] EIGRP
Acceptance Type
--------------------------------------------------------------------------------
ACCEPTANCE EQUIPMENT
--------------------------------------------------------------------------------
SERIES N. VERIFICATION DATE
--------------------------------------------------------------------------------
---------------- ------------------------------------------------
ERROR RATE (BER) PERFORMED PERIOD
---------------- ------------------------------------------------
---------------------------- ------------- ------------------
Dlci --- lLMI --- CIR -----
---------------------------- ------------- ------------------
---------------------------- ----------------------------------------
PROTOCOL --- PING REPLY TIME ---
----------------------------------------
LOSS OF PACKETS ---
----------------------------------------
------------------------ -------------- ---------------------
VISUAL INSPECTION OK FINISHING OK IDENTIFICATION OK
------------------------ -------------- ---------------------
--------------------------------------------------------------------------------
OBSERVACOES:
--------------------------------------------------------------------------------
17
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇: THE CLIENT AUTHORIZES THE BEGINNING OF THE BILLING, AS OF THE
ACCEPTANCE DATE, CONTAINED IN THE PRESENT TECHNICAL INSTRUMENT OF ACCEPTANCE.
--------------------------------------------------------------------------------
-------------------------------- -------------------------------
Telemar's Responsible Technician Client's Responsible Technician
18