1
CONFIDENTIAL TREATMENT
Exhibit 10.11
Note: Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment filed with the SEC under Rule 406. The omitted
confidential material has been filed separately with the SEC. The location of
the omitted confidential information is indicated herein by a legend stating,
"MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT."
DATED 1st April 1997
EASTERN GROUP TELECOMS LIMITED (1)
- and -
HERMES EUROPE RAILTEL B.V. (2)
NETWORK SERVICES AGREEMENT
▇▇▇▇▇▇▇▇ ▇▇▇▇▇+▇▇▇▇
Solicitors
CAMBRIDGE
2
AGREEMENT dated the 1st day of April 1997
Made BETWEEN:
(1) EASTERN GROUP TELECOMS LIMITED (Registered No. 2937788) whose registered
office is ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("EGT"); and
(2) HERMES EUROPE RAILTEL B.V. a company incorporated under the laws of the
Netherlands whose registered office is ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("the User")
together "the Parties"
BACKGROUND
(A) EGT operates a telecommunications network ("the Network") under its Public
Telecommunications Operator Licence dated 24 July 1996.
(B) The User wishes to acquire the right to use optical fibres from EGT as set
out in Schedule 1 on the Network from Aldeburgh to London and from Margate
to London.
OPERATIVE PROVISIONS
The Services will be provided in accordance with the attached Schedules and
their associated Appendices which subject to Clause 11.7 of Schedule 2 comprise
the entire agreement between the parties.
Schedule 1 Service Definition
Appendix A Technical Definition
Appendix B Implementation Plan
Schedule 2 Standard Terms and Conditions
Schedule 3 Performance Specifications
Schedule 4 Maintenance and Support
Appendix A Support and Maintenance Operating Procedures
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Contents
BACKGROUND...................................................................1
OPERATIVE PROVISIONS.........................................................1
SCHEDULE 1 SERVICE DEFINITION................................................3
Appendix A Technical Definition.............................................10
Appendix B Implementation Plan..............................................23
SCHEDULE 2 STANDARD TERMS AND CONDITIONS....................................25
1. Interpretation.........................................................25
2. Provision Of The Service...............................................30
3. Covenants By EGT.......................................................30
4. Covenants By The User..................................................31
5. Maintenance............................................................33
6. Payments...............................................................34
7. Duration And Termination...............................................35
8. Warranties And Liability...............................................37
9. Confidentiality And Intellectual Property..............................38
10. Expert Determination...................................................39
11. Insurance..............................................................40
12. General................................................................40
SCHEDULE 3 PERFORMANCE SPECIFICATIONS.......................................43
SCHEDULE 4 MAINTENANCE AND SUPPORT..........................................44
1. Introduction...........................................................44
2. Interpretation.........................................................44
3. Duties Of The User.....................................................45
4. Duties Of EGT..........................................................47
5. Corrective Maintenance.................................................48
6. Planned Work...........................................................50
7. Service Acceptance Tests...............................................51
8. Control, Implementation And Execution Of The Services..................51
9. Accommodation Maintenance..............................................51
10. Priority of Restoration................................................52
11. User's Cable Maintenance...............................................52
12. Liability..............................................................53
Appendix 1 to Schedule 4 Support and Maintenance
Operating Procedures.......................................................54
4
EXECUTED AS AN AGREEMENT on the day first above written.
SIGNED by )
duly authorised for and on )
behalf of EASTERN GROUP ) /s/ [ILLEGIBLE]
TELECOMS LIMITED in the )
presence of:- )
SIGNED by )
duly authorised for and on ) /s/ [ILLEGIBLE]
behalf of HERMES EUROPE )
RAILTEL B.V. in the presence of:- )
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CONFIDENTIAL TREATMENT
SCHEDULE 1 - SERVICE DEFINITION
This Schedule forms part of the Network Services Agreement and is subject to the
Interpretations and Provisions therein.
SERVICE PARAMETERS
1 The Services EGT will provide the User with the exclusive
right to use two pairs of non-specific
optical fibres ("the Fibres") in EGT's
Network in accordance with the Technical
Definition attached at Appendix A to
Schedule 1 and Performance Specifications
attached at Schedule 3 on each of the Routes
specified in Clauses 1.1 and 1.2 below. EGT
will have the right to designate which
fibres shall be provided to the User and to
change the designation from time to time
provided, however, that no change in
designation causes a Disruption and provided
also that the User is kept aware of any
changes in designation.
The User may request and where available EGT
will provide additional fibre pairs on the
Routes at the prices given in Clause 6 below
in accordance with forecasts periodically
reviewed and agreed between the Parties in
accordance with Clause 11. The terms and
conditions of this Agreement will apply to
additional fibres in the same manner as the
Fibres.
The User is responsible for the provision of
all electronic equipment needed to make use
of the Fibres in accordance with the
Standard Terms and Conditions set out in
Schedule 2.
1.1 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ shall be between a Terminal Station
to be established in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and EGT's
equipment in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and
1.2 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ shall be between a Terminal Station
to be established in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and EGT's
equipment in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## including a
splicing chamber to connect to the Users ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## at
locations to be reasonably agreed by EGT.
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CONFIDENTIAL TREATMENT
The Parties shall agree the exact cable end
locations and method of connection in
relation to the locations identified in
Appendix A to this Schedule, the optical
losses between the cable end locations (such
losses to be measured by means of a
calibrated optical source and power meter),
the number and location of the Regenerator
Sites, the length in kilometres of each
Section and having so agreed shall include
this information in amendments to Appendix A
to Schedule 1.
1.3 Terminal Stations EGT will manage and maintain the Terminal
Stations in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (to be provided by
EGT) and ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## (whether owned by EGT or the
User) and these will accommodate and provide
a suitable environment for User's and
Customers' equipment in accordance with the
Technical Definition attached at Appendix A
to Schedule 1.
EGT will accommodate the User's and/or
Customers' cable, ducts and equipment at the
Terminal Stations and enable them to connect
their networks to the User's submarine cable
provided that:
1.3.1 the User's and Customers' equipment space
requirements do not exceed those specified
in the floor space diagram contained in the
Technical Definition attached at Appendix A
to Schedule 1; and
1.3.2 Customers' equipment power requirements are
consistent with the User's equipment power
requirements set out in the Technical
Definition attached at Appendix A to
Schedule 1,
EGT shall permit Customers access to the
Terminal Stations and EGT Sites to install,
maintain and repair the said equipment,
cabling and ducts upon the terms set out in
Clauses 3.7, 3.8 and 4.5 of Schedule 2.
1.4 Regenerator Sites EGT will provide then manage and maintain
Regenerator Sites at locations to be
indicated in Appendix A to Schedule 1.
1.5 Maintenance Maintenance and support of the Services is
to be provided in accordance with the
provisions of Schedule 4.
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CONFIDENTIAL TREATMENT
2 Designated Purpose The conveyance of traffic and Signals
through the User's equipment between cable
ends (i.e. ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##). The User will
also be permitted to make an in-span User
Breakout to establish a connection to ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##.
The User will not be permitted to transfer
the right to use the Fibres to any other
person in dark or dim form but will
otherwise be allowed to exercise the right
to use the Fibres as it sees fit including
increasing capacity or leasing capacity.
Capacity means bandwidth over a fibre pair
between multiplexing equipments wholly owned
and operated by the User.
EGT will consider written requests for
variations to the Designated Purpose. Such
variations may give rise to additional or
increased payments.
3 Initial Term Commencing on the date of this Agreement and
continuing in relation to each Route for the
period of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years from the Provision Date
for that Route.
3.1 Term The Initial Term and thereafter unless and
until terminated in accordance with the
Notice Period.
4 Notice Period Notice of at least ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## months given at
any time to expire at the end of the Initial
Term or on any date thereafter.
5 Dates
5.1 Ready for Testing Dates The Routes shall be Ready for Testing on the
following dates or such later dates as may
be agreed in writing between the Parties
- Route 1 1st September ▇▇▇▇
- ▇▇▇▇▇ ▇ 1st September 1997
5.2 Provision Date The Provision Date for each Route shall be
the date when EGT has demonstrated that the
Services on the Route satisfy the Acceptance
Tests contained in Schedule 3.
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CONFIDENTIAL TREATMENT
6 Usage Payment Payments for each Route as defined below are
due per annum paid in equal Quarterly
installments in advance and subject to RPI
Uplift on each anniversary of its Provision
Date in accordance with Clause 6 of Schedule
2 of this Agreement.
The first year payment for the right to use
additional fibre pairs will be adjusted by
the RPI Uplift from the prices given below
from the Provision Date for the Route
concerned.
Route 1 ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
##
Usage Payment
Dark fibre service at Provision Date
First pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Second pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Each additional pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Route 2 ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
##
Usage Payment
Dark fibre service at Provision Date
First pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Second pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Each additional pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
No Usage Payment is due for a Route for any
period when, following initial Acceptance of
the Route, the Route is not available for
transmission of Signals (the period of which
shall be determined in accordance with
Schedule 4) except where due to any
negligent act or omission or default or
breach of this Agreement by the User. The
Usage Payment due for the following Quarter
will be adjusted on the invoice to take
account of such loss of service.
6.1 The total Usage Payment will be reduced by
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## per Quarter adjusted by RPI Uplift for
each fibre pair or supply of bandwidth
services from the User's submarine cable
provided during that Quarter by EGT to a
third party along a Route at or above the
price of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## on Route 1 and ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## on Route 2,
such deduction to be made commencing the
first full Quarter for which the third party
takes the service.
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CONFIDENTIAL TREATMENT
6.2 RPI Uplift The RPI uplift effective on any anniversary
of the Provision Date will be at a rate of
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## less than the published RPI percentage
increase for the immediately preceding
twelve month period, up to a maximum uplift
of ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## for that period.
7 Time Limits Return to service following notification of
a fault in accordance with Schedule 4 of
this Agreement:
- Equipment module, connector
or splice fault within 6 hours
- Fibre fault within 15 hours
8 Loss of Service Payments In the event of a loss of service
attributable to a fault on EGT's Network or
Interface Equipment notified in accordance
with Schedule 4 of this Agreement, where EGT
fails to restore the Services within the
Time Limits at Clause 7 above EGT will make
a deduction of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (subject to RPI
Uplift) for each additional hour from the
invoice for the following Quarterly
instalment of the Usage Payment, up to a
maximum total deduction in any twelve month
period of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## of the Usage Payment for that
year.
Payments under this Clause 8 will only be
made where the failure to restore service
within the Time Limits is not due to Force
Majeure or any negligent act or omission, or
default or breach of this Agreement by the
User.
9 Liquidated Damages For failures to meet the Ready for Testing
Dates for each Route the following
Liquidated Damages will apply:
- for being Ready for Testing on or before
31st October l997 ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Liquidated Damages
are due
- for each complete week after 31st October
1997 that the ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route is not Ready
for Testing ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
- for each complete week after 31st October
1997 that the ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route is not Ready
for Testing ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
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CONFIDENTIAL TREATMENT
The limit payable by EGT as Liquidated
Damages under this clause is ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## EGT shall not
be responsible for failures to meet Ready
for Testing Dates to the extent such
failures are attributable to Force Majeure.
The User may set off any Liquidated Damages
payment against initial Usage Payments.
The Parties agree that the Liquidated
Damages provided for above are a genuine
pre-estimate of the damages the User would
suffer as a consequence of any delay in the
initiation of service by the User to
Customers and are not to be regarded as
onerous or as a penalty.
10 Service Levels In addition to its rights under Clause 7 of
Schedule 2, the User may terminate this
Agreement by not less than 30 (thirty) days
notice in writing to EGT in the event that:
10.1 there are ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## Disruptions (of whatever
duration and howsoever caused other than by
third party damage) in respect of the
Services on a Route in any ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## month period;
or
10.2 there are ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## Planned Outages of more than
twelve hours duration (not including outages
planned for that duration at the request of
the User or ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Planned Outages
where one or more is as a consequence of
cable relocation requirements of a Local
Authority or Statutory undertaking
(excluding EGT) in respect of the Services
on a Route in any ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## month period;
10.3 there are ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## Planned Outages or Disruptions
howsoever caused of:
10.3.1 more than ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## in duration where the User has
the right to use up to and including ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##
fibre pairs; or
10.3.2 more than ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## duration where the User has the
right to use more than ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## fibre pairs;
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CONFIDENTIAL TREATMENT
in respect of the Services on a Route in any
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## month period.
11 Future Provision Once a year the User will discuss with EGT a
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## year forecast showing its future fibre
and facilities requirements along the Routes
with a view to agreeing additional
provision.
Any additional fibre provision shall be at
the price determined under Clause 6 of this
Schedule for additional pairs and for the
purposes of this Agreement additional fibre
shall be treated as "Fibres" from the
Provision Date.
The following initial contact points will apply, these may be changed by written
notice when required by the Parties.
12 EGT contacts Commercial ▇▇▇▇ ▇▇▇▇▇▇▇▇ tel: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Operations ▇▇▇▇ ▇▇▇▇▇▇ tel: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Fault Control EGT NMC tel: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
13 User Contacts Commercial ▇▇▇▇ ▇▇▇▇▇ tel: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
fax: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Operations Arnaud tel: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
van Rietschoten fax: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Fault Control HER NOC tel: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
fax: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
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CONFIDENTIAL TREATMENT
APPENDIX A TO SCHEDULE 1 - TECHNICAL DEFINITION
1. PURPOSE
The purpose of this Appendix is to define the planing and design
requirements for the Routes specified in Clauses 1.1 and 1.2 of Schedule
1.
2. BACKGROUND
In accordance with its network implementation the User is installing 2
submarine cables:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (Northern route)
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (Southern route)
The diagram below outlines the scope of this Appendix:
Section covered by this Appendix
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
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CONFIDENTIAL TREATMENT
3. PLANNING INFORMATION
3.1 Safety and Security
EGT will adopt appropriate safety and security measures at both the
Terminal Stations and Regenerator Sites. EGT's security officer will
liaise closely with the User's security officer in formulating such
measures.
3.2 Routes
The User requires the following Routes to be provided:
Route 1
o Linking the Terminal Station at ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## with ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
o Regenerator Site at ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## intermediate points.
Route 2
o Linking the Terminal Station at ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## with ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## including a
User Breakout.
Regenerator Site at ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## or possibly ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
intermediate points.
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CONFIDENTIAL TREATMENT
3.3 Route Diversity
The User requires total diversity of its core network and as such requires
the following:
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
3.3.1 ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## will have duct diversity for building entry
and exit points ideally of ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
3.3.2 Where practical internal fibre cabling within the ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## will
maintain a separation of at least ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## metres before entry
into the ODF from the building entry/exit points.
3.3.3. The User Breakout will be a minimum of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## from ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
3.4 Fibre Optic Cable
The EGT fibre optic cable specification is detailed in Schedule 3 of
this Agreement.
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CONFIDENTIAL TREATMENT
4. ROUTE 1
Route 1 is as shown indicated in the diagram below:
e = estimated distance
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Note: The exact routings have not been finalised. EGT will advise the User of
the Section losses when the fibre route has been finalised. The exact routings
including maps will be provided by EGT as soon as possible in accordance with
the implementation plan and will be appended to Schedule 1.
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CONFIDENTIAL TREATMENT
5. ROUTE 2
The Route 2 is as shown in the diagram below:
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Note: The exact routings and number of Regenerator Sites have not been
finalised. EGT will advise the User of the section losses when the fibre route
has been finalised. The exact routings including maps will be provided by EGT as
soon as possible in accordance with the Implementation Plan and will be appended
to Schedule 1.
6. TERMINAL STATION SITES
EGT will provide the following at the Terminal Stations at ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
and ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
o Floor space as shown in the diagram below
o Maximum floor loadings ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per cabinet
o Power with battery backup for ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## with diesel
generator
o External alarm provision to a suitable termination point
o Interface Point (ODF)
o Maintenance of the building and surrounding land.
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CONFIDENTIAL TREATMENT
FLOOR SPACE DIAGRAM
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
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CONFIDENTIAL TREATMENT
EGT will provide the following power and associated circuit breakers:
--------------------------------------------------------------------------------
Equipment type Unit Power Number of Circuit Circuit Breaker -
(▇▇▇▇▇) Breakers Value
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
--------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT ##
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EGT will provide a suitable termination point for the non SDH alarms detailed
below. The User will provide its own alarm monitoring device for those alarms
asterixed and will be responsible for their onward transmission to the User.
--------------------------------------------------------------------------------
Power Environmental Security
--------------------------------------------------------------------------------
Input Power Fail High Temperature* Rack Door Entry*
--------------------------------------------------------------------------------
Battery Low volts Low Temperature* Smoke Detector*
--------------------------------------------------------------------------------
Battery High Volts Flood detector *
--------------------------------------------------------------------------------
EGT will provide the User with interface points at the Terminal Stations on an
ODF as shown in the diagram below. It should be noted that although the User
will provide the optical cord from the ODF to the SDH equipment, EGT will be
responsible for maintaining it.
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Note: EGT will provide the ODF for the ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## fibre pairs for the sub sea cable
termination.
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CONFIDENTIAL TREATMENT
7. INTERMEDIATE REGENERATOR SITES
EGT will provide the following at the intermediate Regenerator Sites:
o Floor space as shown in the diagram below
o Maximum floor loadings ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per cabinet
o Power with battery backup for ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## hours with
diesel generator
o External alarm provision to a suitable termination point
o Interface Point (ODF) Maintenance of the building and surrounding
land
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CONFIDENTIAL TREATMENT
[GRAPHIC OMITTED]
FLOOR SPACE DIAGRAM
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
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CONFIDENTIAL TREATMENT
EGT will provide the following power and associated circuit breakers:
--------------------------------------------------------------------------------
Equipment type Unit Power Number of Circuit Circuit Breaker -
(▇▇▇▇▇) Breakers Value
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
--------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT ##
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EGT will provide a suitable termination point for the non SDH alarms detailed
below. The User will provide their own alarm monitoring device for those alarms
asterixed and will be responsible for their onward transmission to the User.
--------------------------------------------------------------------------------
Power Environmental Security
--------------------------------------------------------------------------------
Input Power Fail High Temperature* Rack Door Entry*
--------------------------------------------------------------------------------
Battery Low Volts Low Temperature* Smoke Detector*
--------------------------------------------------------------------------------
Battery High Volts Flood Detector *
--------------------------------------------------------------------------------
EGT will provide the User with interface points at the Regenerator Sites on an
ODF as shown in the diagram below. It should be noted that although the User
will provide the optical cord from the ODF to the SDH equipment, EGT will be
responsible for maintaining it.
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
-19-
22
8. CABLE TESTING & ACCEPTANCE
Prior to hand over EGT will provide the User with the following for all
new and existing cables:
o OTDR test results completed at the time of commissioning the new
cable
o Manufacturers test results for the cable provided
The User in inspecting the above figures may request a verification OTDR
test if doubts exist as to the suitability of the cable in accordance with
Clause 5 of Schedule 2 to the Agreement.
The User will perform OTDR tests ODF to ODF at the time of installing the
SDH equipment.
9. EGT SECURITY MEASURES
EGT's standard security measures are detailed below. More in depth
measures may be implemented by mutual agreement and would be subject to
separate negotiation.
9.1 Equipment Rooms
EGT equipment rooms will be built out of materials designed to provide a
minimal protection of 2 hours against fire coming from the adjoining
spaces both internal or external. All holes in walls, floor and ceiling of
the room, i.e. for pipes, wires, etc. are filled with fire proof materials
and ducts are equipped with fire barriers.
Normally windows are not fitted but where they are special protection
measures are taken.
9.2 Doors
Doors will be made of 1 hour fire proof material and will be equipped with
panic bars. Door entry alarms will be fitted which will be remotely
monitored by the EGT Network Management Centre.
-20-
23
9.3 Locks
Doors will be fitted with a security lock for which keys cannot be
reproduced without the agreement of EGT. Access control and management of
key distribution will be implemented.
9.4 Fire Extinguishing System
Where Sites are not located close to a 24 hours a day, 7 days a week basis
security centre allowing rapid intervention of less than 3 minutes in case
of fire detection, such Sites will be protected by a halon free
extinguishing system (type Argonite, Inergen or other). This system will
be connected to a fire detection system which operates automatically after
a predetermined time in case of fire detection. The system will generate
as a minimum the following alarms which will be remotely monitored by the
EGT Network Management Centre:
o Fault
o Operation
9.5 Fire Extinguishers
A minimum of two CO2 fire extinguishers will be installed in all equipment
rooms.
9.6 Lightning Protection
Buildings will be equipped with an appropriate number of lightning
conductors. External inputs to the building such as, cables, pipes, power
supplies, ducts, etc. will also be protected against lightning strikes
9.7 HVAC
The temperature and humidity of equipment rooms is controlled and
maintained between the following parameters:
o Temperature: 20 (degree)C +/ 2 (degree)C
o Humidity: 50% +/ 10%
-21-
24
The system will generate as a minimum the following alarms which will be
remotely monitored by the EGT Network Management Centre:
o Fault
o Shutdown
9.8 Signs
Signs will be fitted in accordance with relevant Health and Safety
Regulations and will include the evacuation procedure and the list of
important numbers such as police, fire brigade etc.
9.9 Electrical Network
A simplified diagram showing the electrical path and location of equipment
from the public power supply network inlet to all equipment will be
available and maintained.
9.10 Inspection
The following will be inspected at least annually to ensure they are fully
functional and safe:
o Fire Extinguishing System
o Fire extinguishers
o Power and electrical systems
o HVAC system
o Lightning Protection
-22-
25
CONFIDENTIAL TREATMENT
APPENDIX B TO SCHEDULE 1 - IMPLEMENTATION PLAN
ROUTE 1
1 General
Agreed Design Report for Route 1 30/4/97
Agreed Project Plan for ▇▇▇▇▇ ▇ ▇▇/▇/▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ site *30/4/97
Planning permission *31/5/97
TS Design *30/4/97
Build infrastructure *30/6/97
Fit out TS *31/7/97
RFS to the User *1/8/97
3 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
Plan for existing site *30/4/97
EGT/User site survey *30/4/97
Remedial work *31/7/97
RFS to the User *1/8/97
4 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
Plan for existing site *30/4/97
EGT/HER site survey *30/4/97
Remedial work *31/7/97
RFS to the User *1/8/97
5 Cable Route
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP *30/4/97
Contract award *30/4/97
Duct installed *30/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RES to the User *15/8/97
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Handover test results to
the User *30/4/97
RFS to the User *15/8/97
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP *30/4/97
Contract award *30/4/97
Duct installed *30/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RFS to the User *15/8/97
* DATES IN ITALICS ARE NOT BINDING. BINDING DATES WILL BE ESTABLISHED IN THE
AGREED PROJECT PLAN.
-23-
26
CONFIDENTIAL TREATMENT
ROUTE 2
1 General
Agreed Design Report for Route 2 30/4/97
Agreed Project Plan for ▇▇▇▇▇ ▇ ▇▇/▇/▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ site *30/4/97
Planning permission *31/5/97
TS Design *30/4/97
Build infrastructure *30/6/97
Fit out TS *31/7/97
RFS to the User *1/8/97
3 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Purchase site *30/4/97
Planning permission *30/4/97
Regen Design *30/4/97
Build infrastructure *30/6/97
Fit out TS *31/7/97
RFS to the User *1/8/97
4 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Plan for existing site *30/4/97
EGT/User site survey *30/4/97
Remedial work *31/7/97
RFS to the User *1/8/97
5 Cable Route
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP
Contract award *30/4/97
Duct installed *31/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RFS to the User *15/8/97
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP *30/4/97
Contract award *30/4/97
Duct installed *30/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RFS to the User *15/8/97
* DATES IN ITALICS ARE NOT BINDING. BINDING DATES WILL BE ESTABLISHED IN THE
AGREED PROJECT PLAN.
-24-
27
SCHEDULE 2 - STANDARD TERMS AND CONDITIONS
These terms and conditions apply to the Services except where expressly
overridden or qualified by Schedule 1 to this Agreement. Words defined in such
Schedule 1 shall have the same meaning throughout this Agreement
1. INTERPRETATION
In this Agreement the following expressions shall have the following
meanings unless the context otherwise requires.
"Agreement" means the Agreement of which this forms
part;
"Confidential Information" means all know-how, techniques, ideas,
principles and concepts which underlie any
of the Services and business or commercial
information and all other information in
whatever form obtained by either Party
directly or indirectly from the other Party
pursuant to this Agreement or prior to and
in contemplation of it;
"Customer" means any customer of the User, or of any
company within the Group of companies of
which the User is a member which is using
the Services;
"Designated Purposes" means the designated purpose as defined in
Schedule 1;
"Disruption" means a failure defect or damage to the
Network or Interface Equipment not being a
Planned Outage which causes a deterioration
in the performance of the Services below the
standards set out in the Performance
Specification or below such other measures
of performance as may be agreed between the
Parties while carrying out a Temporary
Repair in accordance with Clause 5.3 of
Schedule 4 and "Disrupt" and "Disrupted"
shall be construed accordingly;
"EGT's Sites" means those sites belonging to, leased by or
otherwise made available for use by EGT
during the Term which are not owned by
leased by or
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28
otherwise provided by the User;
"End Date" means the date when due to expiry or earlier
termination of this Agreement the Services
are no longer available to the User;
"Expert" means the person appointed in accordance
with clause 10;
"Expert Determination" means determination of any issue,
disagreement or dispute between the Parties
pursuant to the provisions of Clause 10;
"Force Majeure" means any cause beyond a Party's reasonable
control that prevents its performance of all
or some of its obligations hereunder
including without limitation failure or
delay in obtaining Infrastructure Requisite
Consents or Telecommunications Requisite
Consents provided that the failure or delay
has not been caused or contributed to the by
the party invoking the force majeure any act
of God tempest failure or shortage of power
supplies flood subsidence lightning or fire
strike lockout trade dispute or labour
disturbances the act or omission of
government highway authorities or other
competent authority or public
telecommunications operators (other than the
parties) war military operations riot
difficulty delay or failure in manufacture
production or supply by third parties of
spare parts for the Network or Interface
Equipment but for the avoidance of doubt
lack of financial or other non-labour
resources shall not be an event of Force
Majeure;
"Group" means the User and any other body corporate
which is its holding company or subsidiary
and any other body corporate which is a
subsidiary of that holding company, as
defined by section 53A of the Companies ▇▇▇
▇▇▇▇; and "holding company" and "subsidiary"
have the meanings given by section 736 of
the Companies ▇▇▇ ▇▇▇▇;
"Infrastructure Requisite
Consents" means those permissions consents approvals
wayleaves or licences which are
-26-
29
necessary lawfully to construct and run the
Network and to maintain and repair the
Network so that the User may use and enjoy
the Services;
"Interface Equipment" means any accommodation, power supplies,
cabling, equipment or other facilities that
are to be provided by EGT under this
agreement to enable the User to enjoy the
Services;
"Initial Term" shall have the meaning set out in Schedule
1;
"Network" means EGT's communications network as it may
exist from time to time including the fibre
optic cable and all ancillary apparatus and
equipment which is owned or operated by EGT
whether owned leased or made available under
some other form of agreement with a third
party and which is essential to the totality
of the operation of EGT's communication
network;
"Permanent Repair" has the meaning set out in Schedule 4 to the
Agreement;
"Planned Outage" means an interruption to the Services
planned by EGT and advised to the User in
accordance with the procedure set out in
Schedule 4 and in particular Planned Outage
includes:-
(i) any interruption to or degradation of
the Services caused by EGT effecting a
Permanent Repair following a Temporary
Repair; and
(ii) any interruption to or degradation of
the Services caused by changes to the
Network or Interface Equipments;
but does not include any interruption to or
degradation of the Services caused by the
provision of a new User Breakout;
"Provision Date" shall have the meaning set out in Schedule
1;
"PTO Licence" means a licence to operate a public
telecommunications system granted by the
Secretary of State for Trade and Industry
under the Telecommunications
-27-
30
▇▇▇ ▇▇▇▇;
"Quarters" Three month periods where the first Quarter
starts on the Provision Date and subsequent
Quarters commence at three, six and nine
months after the Provision Date or the
anniversaries thereof.
"RPI" means the general index of retail prices in
respect of all items as published in the
monthly digest of statistics by the Central
Statistics Office or if such index shall
cease to be published such other index as
may be officially published in substitution
thereof or if not officially published that
which most closely resembles such index;
"Services" shall have the meaning set out in Schedule
1;
"Signals" means any form of electrical or optical
signal connecting to the Network or
Interface Equipments including but not
limited to its physical properties, data
coding and data structures;
"Telecommunications
Requisite Consents" means those permissions, consents,
approvals, wayleaves, licences, certificates
and permits in legally effectual form
necessary for the User and Customers
lawfully to have access to EGT's Sites in
connection with this Agreement so that the
User may use and enjoy the Services for the
Designated Purposes;
"Temporary Repair" has the meaning set out in Schedule 4;
"Type Approved" means equipment for which the User has
provided performance specifications to EGT
and for which EGT has confirmed in writing
to the User that any equipments meeting the
said performance specifications may be
connected to the Network or Interface
Equipment such confirmation not to be
unreasonably withheld or delayed;
"Usage Payment" shall have the meaning set out in Schedule
1;
"User Breakout" means the point on the Network where the
User
-28-
31
makes a connection to another network, the
location of such point to be agreed by EGT,
such agreement not to be unreasonably
withheld;
"User's Equipment" means any cable or equipment that is to be
provided by or on behalf of the User which
connects to the Network or the Interface
Equipment, or transmits or receives Signals
over the Network;
"User's Personnel" means any employee duly authorised agent or
contractor of the User;
"VAT" means Value Added Tax at the then currently
applicable rate.
1.2 In this Schedule:
1.2.1 the reference to "the Parties" shall include a reference to their
successors and permitted assigns
1.2.2 unless the context otherwise requires all references to a particular
Clause or Sub-Clause, shall be a reference to that Clause or
Sub-Clause in this Schedule, reference to this Schedule shall be to
this Schedule 2 to the Agreement, all other references to Schedules
are to other respective schedules to the Agreement;
1.2.3 words importing the singular shall include the plural and vice versa
and words importing the masculine gender shall include the feminine
and vice versa;
1.2.4 headings are for convenience only and shall be ignored in
interpreting this Agreement;
1.2.5 unless the contrary intention appears words denoting persons shall
include any individual, partnership, company, corporation, joint
venture, trust, association, organisation, or other entity, in each
case whether or not having separate legal personality;
1.2.6 the words "include" or "including" are to be construed without
limitation to the generality of the preceding words;
1.2.7 references to a statute include any statutory modification,
extension, or re-enactment of that statute.
-29-
32
1.2.8 where the context so permits the word User shall be deemed to
include "User's Personnel";
1.3 The following documents form part of this Agreement, and any
inconsistencies between them shall be resolved by giving them the
following order of precedence, unless expressly stated to the contrary:
1.3.1 Schedule 1 and its appendices;
1.3.2 Schedules 3 and 4;
1.3.3 Schedule 2.
2. PROVISION OF THE SERVICE
2.1 EGT will provide the Services throughout the Term in accordance with
Schedule 1.
2.2 The Services will be available to the User continuously throughout
the Term save when there is a Disruption or Planed Outage.
2.3 EGT will carry out maintenance in accordance with Schedule 4 and in
the event of a Disruption or Planed Outage restore the Services as
soon as is reasonably practicable and will where due credit Loss of
Service Payments to the User in accordance within Clause 8 of
Schedule 1 and otherwise adjust the Usage Payments in accordance
with Clause 6.7 of this Schedule.
2.4 Provision of the Services does not prevent EGT from using its
Network and Interface Equipments to provide services to others save
as expressly limited in Schedule 1.
3. COVENANTS BY EGT
3.1 EGT will not tamper with, modify, or deal in and not without the
prior consent of the User, repair, or alter in any way whatsoever
(whether directly or indirectly) the whole or any part of the User's
Equipment or Customer's Equipment situated at any premises or
locations (whether in EGT's ownership, control, occupation or not)
other than as may be reasonably necessary in relation to EGT
fulfilling its obligations under this Agreement.
3.2 Without prejudice to the generality of the foregoing paragraph, EGT
will not knowingly take any action that could contribute to the
degradation of the User's Equipment or Customer's Equipment.
-30-
33
3.3 EGT will obtain and maintain and renew all Infrastructure Requisite
Consents and all Telecommunications Requisite Consents from time to
time as may be required.
3.4 EGT will support and maintain the Network and Interface Equipments
in accordance with the procedures set out in Schedule 4.
3.5 EGT will give the User reasonable notice (being at least 30 days
when practicable) of any proposed changes to the Network or
Interface Equipments of which it is aware which might affect the
Services.
3.6 EGT shall diligently carry out the design and construction of the
Routes in accordance with the Technical Definition appended to
Schedule 1 and will use its reasonable endeavours to ensure that the
Routes are available for Acceptance Testing by the Ready for Testing
dates and develop and comply with the Implementation Plan in
conjunction with the User for such purposes.
3.7 EGT grants to the User and its employees and Customers and EGT
approved agents and contractors, access to EGT Sites on which the
User's Equipment or Customer's equipment is located. Access will be
available at any reasonable time for the purposes of maintenance to
the User's or Customers' equipment and will be available during
normal working hours upon reasonable written notice to EGT for other
purposes.
3.8 EGT grants access to the Terminal Stations for the purpose of
connecting Customers of the User to the Users Equipment. This access
shall be as arranged by prior written agreement with EGT.
3.9 EGT grants the User the right to connect its cable and User's
Equipment to the Network at the cable end locations and the User
Breakouts.
3.10 EGT shall at all times throughout the Term and any period under
Clause 7.9 comply in all material respects with the provisions of
its PTO licence and all statutes and regulations applicable to the
provision of the Services.
4 COVENANTS BY THE USER
Throughout the Term the User shall and in relation to Clauses 4.7-4.11
shall procure that its Customers when acting as Customers will:
4.1 In relation to the use and/or the operation of the Services comply
with reasonable rules, instructions or operations manuals, guidance
notes, user documentation, operation procedures and similar from
time to time notified by EGT to the User and all statutes and
regulations applicable to such use and/or operation;
-31-
34
4.2 Immediately and without delay inform EGT using the fault reporting
procedure set out in Schedule 4 of any defect or problem experienced
by the User in relation to the Services as and when such defect or
problem arises;
4.3 Ensure all necessary consents and approvals (including BABT approval
where appropriate) required for the lawful installation and
connection of the User's equipment to the Network and/or Interface
equipments have been obtained prior to such installation and
connection;
4.4 Ensure that throughout the Term or the period during which the User
has equipment connected to the Network or Interface Equipments that
the User has the requisite permits to provide its services including
but not limited to a suitable licence under the Telecommunications
Act of 1984 or the Broadcasting ▇▇▇ ▇▇▇▇ if appropriate and that in
the event of the User ceasing to hold such permits the User will
immediately notify EGT in writing;
4.5 Remain responsible for compliance by those accessing the EGT Sites
pursuant to Clauses 3.7 and 3.8 or otherwise under this Agreement
with all reasonable regulations or procedures, or safety or security
instructions of EGT in force at those EGT Sites which have been
communicated to the User or the persons accessing the EGT sites and
the User shall subject to the limitations on liability in Clause 8
of Schedule 2 indemnify EGT from and against all losses, costs,
claims, damages and liabilities arising from any failure to comply
with those regulations, procedures or instructions or any negligent
act or omission or wilful default on the part of those accessing the
EGT Sites pursuant to this Agreement,
4.6 Use the Services for the Designated Purpose and not use the Services
for any other purpose without first obtaining the written agreement
of EGT;
4.7 Not damage, tamper with, modify, deal, repair, reverse engineer or
alter in any way whatsoever (whether directly or indirectly) the
whole or any part of the Network or Interface Equipments situated at
any premises or locations (whether in EGT's ownership, control,
occupation or not);
4.8 Under no circumstances whatsoever substitute, remove, add, or expand
any cable, wiring, equipment, software, or fibre comprising part of
the Network or Interface Equipment, hardware or software connected
(whether directly or indirectly) to the Network without EGT's
written prior permission;
4.9 Only connect equipment to the Network or Interface Equipment that
has been Type Approved by EGT and the User must submit
specifications for any Signals to be carried over the network for
approval by EGT before transmitting such Signals. Furthermore the
User warrants that all approved equipment connected or to be
connected to the Network is operating within its performance
-32-
35
specifications to the best of the User's reasonable knowledge;
4.10 Without prejudice to the generality of the foregoing subclause
4.1-4.2, 4.6-4.9, not knowingly take any action that could
contribute to the degradation of the Network or Interface Equipment,
affect other users of the Network, or adversely impact on EGT's
ability to provide the Services;
4.11 Provide EGT with all information which EGT may reasonably require
from the User in order to efficiently establish and provide the
Services and to restore the Services following a Disruption or
Planned Outage;
4.12 Not use the Services or knowingly permit them to be used for any
transmission of anything contrary to any terms of EGT's PTO Licence.
5. MAINTENANCE
5.1 EGT may modify, change, maintain, repair or replace any part of the
Network or Interface Equipments at any time at its own expense in
accordance with Schedule 4 provided there is no deterioration to the
Services.
5.2 EGT shall use its reasonable endeavours to ensure that the Fibres
and Interface Equipment are fully prepared to be connected to the
User's Equipment or the User's fibre by the Ready for Testing dates
set. Once the Fibres and Interface Equipment are so prepared the
User shall carry out the connection.
5.3 EGT and the User shall each carry out the Acceptance Tests
designated as their responsibility in the Technical Definition and
exchange test results. Each party shall complete their Acceptance
Tests within 3 weeks.
5.4 On satisfactory completion of the Acceptance, EGT and the User shall
each sign a Certificate of Readiness indicating the Provision Date.
5.5 If an Acceptance Test ("the Initial Acceptance Test") is not
satisfactorily completed, the parties agree to co-operate in order
to identify the cause of the failure of the Acceptance Test. EGT and
the User shall use best efforts to resolve the problem. Once the
problem has been resolved, the parties shall carry out the
Acceptance Tests ("the Further Acceptance Tests") in accordance with
the provisions of the Annex. Unless the failure of the Initial
Acceptance Test is due to any negligent act, omission or breach of
contract by the User the costs of Further Acceptance Tests will be
borne by EGT.
5.6 If the cause of the failure of the Acceptance Tests has not been
identified within 5 Business Days of the date upon which the Initial
Acceptance Test failed to be
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36
CONFIDENTIAL TREATMENT
satisfactorily completed EGT shall use reasonable endeavors to
identify suitable alternative fibres (which shall themselves be
subject to Acceptance Testing under this Clause); or an alternative
solution that will meet the Acceptance Tests.
6. PAYMENTS
6.1 In consideration of EGT providing the Services, and the other
obligations assumed by EGT pursuant to the Agreement, the User
shall at the due dates pay Usage Payments (less any payments due
under Clauses 6, 8 or 9 of Schedule 1) to EGT.
6.2 EGT will invoice the User for Usage Payment Quarterly in advance.
6.3 The User shall pay the said invoices within 45 days of the date of
the said invoices.
6.4 The Usage Payment will be subject to annual review and uplift on
each anniversary of the Provision Date using the formula below:
new Usage Payment = last Usage Payment x (## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## +
fractional change in RPI since last annual review - ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##)
limited to a maximum uplift of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## for any one
annual period.
For the purposes of this calculation the new RPI used shall be the
one published most recently prior to the relevant anniversary of the
Provision Date.
All RPI Uplifts shall be calculated on this basis.
6.5 If the User fails to pay for the Services on or before the due date,
EGT may without prejudice to any rights or remedies it may have:
6.5.1 if payment in full is not made within 30 days of due date
cancel or suspend any further provision to the User of the
Services;
6.5.2 charge the User interest on the outstanding amounts (both
before and after any judgment) at the rate of ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## above the National Westminster Bank Plc base rate
per annum calculated on a daily basis from the date the
payment was due until the total sum has been paid.
6.6 The Usage Payment is expressed exclusive of VAT and any VAT
chargeable shall be paid in addition by the User.
6.7 Loss of Service Payments and payments under Clause 6 of Schedule 1
shall appear as a deduction from the Usage Payment otherwise payable
on User's account for the Quarter following the Quarter in which the
Loss of Service Payment arose.
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37
7. DURATION AND TERMINATION
7.1 The Agreement shall come into force the day it is executed by the
last Party but other than as indicated in the Implementation Plan
EGT shall not be obliged to provide the Services until the Provision
Date.
7.2 Subject to Clauses 7.3 and 7.6 and Schedule 1, Clause 10, the
Agreement shall continue in force throughout the Initial Term and
thereafter unless either party gives not less than the Notice Period
written notice to the other of termination.
7.3 Either Party shall be entitled to terminate this Agreement by 30
days written notice to the other if:
7.3.1 the other commits any material breach of the provisions of
this Agreement and in the case of such breach which is capable
of remedy, fails to remedy the same within 90 days of receipt
of a written notice giving full particulars of the breach and
requiring its remedy;
7.3.2 an encumbrancer takes possession or a receiver is appointed
over any property or assets of the other;
7.3.3 the other makes an involuntary arrangement with its creditors
or becomes subject to an administration order;
7.3.4 the other goes into liquidation (except for the purposes of
solvent amalgamation, reconstruction or other reorganisation
and in such manner that the company resulting from the
reorganisation effectively agrees to be bound to or to assume
to obligations imposed on the other by this Agreement);
7.3.5 the other ceases, or threatens to cease to carry on business.
7.4 A breach shall be considered capable of remedy for the purposes of
Clause 7.3.1 if the defaulting party can comply with the provisions
in question in all respects other than as to the time of performance
(provided that the time of performance is not of the essence).
7.5 Termination of the Agreement shall be without prejudice to the
rights by the party accrued prior to termination including any right
to payment of any sum and any right to ▇▇▇ in respect of any
antecedent breach of this Agreement.
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7.6 The User may, by written notice to EGT, terminate the whole of this
Agreement or either Route in any of the following circumstances
which are not caused or contributed to by Force Majeure or any
negligent act or omission, breach of contract or willful default by
the User:
7.6.1 At any time the design and construction of the Routes is more
than ninety (90) days or such other period as may be agreed
between the parties behind the schedule provided for in the
then current Implementation Plan; or
7.6.2 The Routes are not Ready for Testing (or EGT acknowledges in
writing that they will not be ready) by 1 March 1998.
7.7 Termination shall not:
7.7.1 affect any provision of the Agreement which in order to give
full effect to its meaning needs to survive termination
including Schedule 1 Clauses 8 and 9 and Schedule 2, Clause
7.9 and 7.10; or
7.7.2 bring to an end the confidentiality obligations of the Parties
under this Agreement which shall survive for a period of 3
years after termination.
7.8 Upon termination of the Agreement by EGT pursuant to Clause 7.3 all
sums properly invoiced to the User shall become immediately due and
payable.
7.9 Following termination under Clause 7 or under Schedule 1 Clause 10
otherwise than pursuant to termination by EGT under Clause 7.3.2 to
7.3.5 the User shall be entitled to continue to use the Services for
a period of 18 months (or such lesser period as it shall specify by
no less than thirty days notice in writing given at any time during
such period) upon and subject to provisions of this Agreement which
notwithstanding termination shall apply to such use.
7.10 Upon termination of this Agreement by EGT pursuant to Clauses
7.3.2-7.3.5 or at the expiry of any Notice Period or of the period
determined under Clause 7.9:
7.10.1 EGT shall forthwith disconnect the User's and the Customers'
equipment from the Network.
7.10.2 The User shall within 14 days remove the User's equipment and
shall (unless EGT direct otherwise) cause the Customer to
remove the Customer's equipment from EGT Sites forthwith
making good and otherwise indemnifying EGT against all damage
or loss occasioned thereby to the reasonable satisfaction of
EGT.
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CONFIDENTIAL TREATMENT
7.10.3 EGT shall within 7 days forward to the User a statement of
all monies due under the Agreement and/or pursuant to Clause
7.9 and the User shall within 14 days of receipt of such
statement pay the invoices then due to EGT with interest
thereon in default of payment in accordance with the
provisions of Clause 6.5.2.
8. WARRANTY AND LIABILITY
8.1 Each Party represents and warrants to the other that it has legal
power, authority and right to enter into the Agreement and to
perform its respective obligations in the Agreement.
8.2 Each Party shall be liable for death or personal injury arising as a
direct result of the negligence of that Party or its employees.
8.3 EGT's liability to the User shall be limited in the following
respects at all times during the Term and during any period under
Clause 7.9:
8.3.1 for failure to meet the Ready for Testing Dates, to Liquidated
Damages as set out in Clause 9, Schedule 1.
8.3.2 For failure to restore Services within the Time Limit, to Loss
of Service Payments as set out in Clause 8, Schedule 1.
Nothing in this Clause 8.3 shall prejudice or limit the quantum of
damages the User is entitled to recover consequent upon termination
pursuant to Clause 7 of Schedule 2 and Clause 10 of Schedule 1
8.4 Neither party shall be liable to the other in respect of any breach
of the provisions of this Agreement to the extent contributed to by
the negligence, act or omission of the other, or Force Majeure.
8.5 In no event shall either party be liable to the other in tort,
negligence, breach of statutory duty or otherwise for any loss,
damage, cost or expense of any nature incurred or suffered by the
other party of an indirect, consequential, incidental, special or
exemplary nature including any economic loss or other loss of
opportunity, turnover, profit, business or goodwill.
8.6 The maximum liability of each party to the other, whether during the
Term or following termination, in respect of any breach of this
Agreement (including any breach under this Clause 8 but excluding
breaches under Clause 8.2) or arising as a consequence of the tort,
negligence or breach of statutory duty shall be a total of ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## per event or series of connected events
and ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## in any 12 month period.
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8.7 Not withstanding the provisions of this Clause 8, each party shall
idemnify the other against all losses caused to the property of
the other as a consequence of any breach of any provision of this
Agreement up to the limits of insurance set out in Clause 11.
9. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
9.1 Each Party agrees to keep confidential all Confidential Information
of the other Party and to use the same exclusively for the purposes
of or as contemplated by the Agreement and to disclose the same only
to those of its employees, Group companies, agents and
sub-contractors pursuant to the Agreement (if any) to whom and to
the extent that such disclosure is reasonably necessary for the
purposes of the Agreement.
9.2 The obligations and restrictions contained in this Clause 9 shall
not apply to information:
9.2.1 which is now or subsequently becomes available to the public
otherwise than by breach of the Agreement by the receiving
Party;
9.2.2 which the receiving Party can prove by documentary evidence
was already in the receiving Party's possession and at its
free disposal prior to obtaining the same directly or
indirectly from the other Party;
9.2.3 which is subsequently disclosed to the receiving Party free of
restrictions on disclosure and use by a third party not acting
on behalf of the other Party or directly or indirectly bound
to the other Party by obligations of confidentiality or
non-use in relation to such information; or
9.2.4 which the receiving Party is required by any reason of law to
disclose.
9.3 For the avoidance of doubt nothing in this Clause 9 shall be
interpreted as preventing either Party making full and unrestricted
use of its knowledge and expertise pertaining generally to the
industry of the other Party.
9.4 All intellectual property relating to the subject matter of this
Agreement conceived, originated, devised, developed, or created by
EGT, its officers or employees shall vest in EGT.
9.5 The User acknowledges that it shall have no licence, right, title or
interest in or to any intellectual property relating to the Network
or Services.
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10. EXPERT DETERMINATION
10.1 All disputes or differences which shall at anytime hereafter arise
between EGT and the User in respect of the construction or effect of
this Agreement or the rights duties and liabilities of the Parties
hereunder or any matter or event connected with or arising out of
this Agreement (a "Relevant Event") shall be referred to a director
(or his nominee) of each of the Parties within 5 business days of
the Relevant Event arising and they shall endeavour to reach a
mutually acceptable solution. In the event that a Relevant Event
cannot be settled by the directors (or their nominees) within 5
business days of it being referred to the Parties' directors then if
both the Parties so decide the provision of Clause 10.2 shall apply.
10.2 If both Parties agree to refer an issue to an Expert and the Parties
fail to nominate or agree such Expert within 10 days, then the
Expert may be nominated at the request of either Party by the
President or other duly appointed officer of such UK professional
body as the parties may agree or in the absence of agreement:
10.2.1 in the case of a dispute as to the interpretation or
construction of this Agreement, by the President or other
authorised officer of the Law Society of England and Wales;
10.2.2 in the case of a dispute as to the sum payable under this
Agreement by the President or other authorised officer of the
Institute of Chartered Accountants in England and Wales; and
10.2.3 in the case of all other disputes concerning the operation
and maintenance of the Network or the provision of the
Services, by the President or other authorised officer of the
Institution of Electrical Engineers or equivalent as
appropriate in the circumstances.
10.3 Each of the Parties shall be entitled to provide the Expert with
such information and such written representation as may be necessary
to assist in the determination of the dispute in question provided
such information and/or representations are made within 30 days of
the date of the referral.
10.4 The Expert shall be entitled to seek expert evidence at his
discretion as to the circumstances relating to the dispute between
the Parties and the most expeditious method of its resolution.
10.5 The Expert shall be required by the Parties to reach a determination
of the issues referred to him as soon as is reasonably practicable
and unless the Parties otherwise agree within 45 days of his
appointment.
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CONFIDENTIAL TREATMENT
10.6 The Expert shall act as an expert and not as an arbitrator and his
decision shall be notified to both Parties simultaneously and
implemented a soon as is practicable upon notification. Unless both
Parties agree in writing prior to the appointment of the Expert, the
Expert's decision (including his decision as to costs) shall be
final and binding on both Parties.
11. INSURANCE
11.1 EGT shall procure prior to the Provision Date for each Route and
maintain in force during the Term:
11.1.1 All risk physical damage insurance (subject to all usual
exclusions) for damage caused by EGT and/or its equipment in
an amount no less than ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## covering
the EGT Sites and the cable and equipment at the EGT Sites
belonging to EGT, the User and the Customers. All losses
recoverable under this Clause shall be payable to the User,
EGT and their Customers, as their respective interests may
appear.
11.1.2 Public liability insurance at the Insurance Sites in an amount
no less than ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##.
11.2 The User shall procure all risks physical damage insurance and
public liability insurance on the terms and for the period set out
in Clause 11.1 and shall maintain such insurance for so long as the
User's or customers' equipment shall remain at the EGT Sites. Such
insurance shall cover the cable and equipment at the EGT Sites
belonging to the User, the Customer and EGT and its customers, for
damage, personal injury or loss caused by the User or its Equipment.
11.3 EGT and the User will provide each other with satisfactory evidence
of the existence of said coverages on request.
12. GENERAL
12.1 Except as provided in this Clause, neither EGT nor the User may
assign any of its rights or obligations under this Agreement without
the prior written consent of the other party such consent not to be
unreasonably withheld or delayed. The User may assign all, but not
part, of its rights and obligations under this Agreement to a wholly
owned subsidiary of the User provided that the User remains fully
responsible to EGT for the performance by the assignee of its
obligations under this Agreement. The User shall enter into a
guarantee of the assignee's obligations to EGT if requested to do so
by EGT.
12.2 EGT may sub-contract the performance of any of its obligations under
the Agreement to any third party.
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12.3 Neither Party shall be deemed to be in breach of the Agreement, or
otherwise liable to the other by reason of any delay in performance,
or non-performance of any of its obligations under this Agreement to
the extent that delay or non-performance is caused by Force Majeure.
Any Party affected by such circumstances shall notify the other
Party and use all reasonable endeavours to avoid or overcome
circumstances of Force Majeure.
12.4 The Agreement shall be governed by and construed in accordance with
English law and the Parties submit to the non-exclusive jurisdiction
of the English Courts.
12.5 No delay by either Party in enforcing the provisions of the
Agreement shall be deemed a waiver of that Party's right to enforce
that provision.
12.6 The illegality or invalidity of any part of the Agreement shall not
affect the legality or validity of the remainder of it.
12.7 The Agreement together with its appendices and schedules and all
information contained and referred to therein and the letter from
EGT to the User of even date respecting the Margate Terminal Station
embody the entire understanding between the Parties concerning the
subject matter of this Agreement and override and supersede any
prior promises, representations, undertakings and implications
between the Parties concerning the subject matter of this Agreement.
12.8 This Agreement may only be varied in writing signed by an authorised
representative of each Party.
12.9 Any notice given under this Agreement shall be in writing and sent
or delivered to the address of the recipient Party given in this
Agreement (or as from time to time otherwise notified) by:
12.9.1 facsimile transmission, in which case it will be deemed
received when sent; or
12.9.2 hand (including courier) in which case it will be deemed
received when delivered; or
12.9.3 air mail (where appropriate) in which case it will be deemed
received 5 days after posting; or
12.9.4 ordinary first class mail (where the recipient is within the
same jurisdiction as the sender) in which case it will be
received 2 days after posting.
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12.10 None of the provisions of this Agreement shall be deemed to
constitute a partnership between the Parties and neither of them
shall have the authority to bind the other in any way except as
provided in this Agreement.
12.11 Each Party shall bear its own legal costs, legal fees and other
expenses incurred in the preparation and execution of this
Agreement.
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CONFIDENTIAL TREATMENT
SCHEDULE 3- PERFORMANCE SPEClFICATIONS
EGT Single Mode Optical Fibre Cable Parameters
================================================================================
TYPE AND CONSTITUTION
Single mode, complying with recommendation: CCITT G 652
================================================================================
GEOMETRICAL PROPERTIES
----------------------
Mode field diameter at ## MATERIAL ((mu)m) ## MATERIAL OMITTED AND
OMITTED AND SEPARATELY FILED UNDER SEPARATELY FILED UNDER A
A REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT ## TREATMENT ##
Reference Surface diameter ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Primary Coating diameter ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Core non circularity (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Reference surface non circularity (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Core/cladding concentricity error ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Primary coating concentricity error ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
--------------------------------------------------------------------------------
OPTICAL PROPERTIES
------------------
Cut-off-wavelength (nm) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Attenuation:
## MATERIAL OMITTED AND SEPARATELY (dB/km) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
## MATERIAL OMITTED AND SEPARATELY (dB/km) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
Total Dispersion:
## MATERIAL OMITTED AND SEPARATELY (ps/▇▇.▇▇) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
## MATERIAL OMITTED AND SEPARATELY (ps/▇▇.▇▇) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
Zero Dispersion Wavelength (nm) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
--------------------------------------------------------------------------------
MECHANICAL PROPERTIES
---------------------
Proof test (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Macro bend attenuation at (dB) ## MATERIAL OMITTED AND
## MATERIAL OMITTED AND SEPARATELY SEPARATELY FILED UNDER A
FILED UNDER A REQUEST FOR REQUEST FOR CONFIDENTIAL
CONFIDENTIAL TREATMENT ## (## MATERIAL TREATMENT ##
OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL
TREATMENT ## turns on ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL
TREATMENT ## diameter mandrel)
Fibre Strain non uniformity (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Splice Losses (Maximum) dB ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Connector Type Diamond ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
================================================================================
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SCHEDULE 4 - MAINTENANCE AND SUPPORT
1. INTRODUCTION
This Schedule and its Appendix sets out the responsibilities of the User
and of EGT in respect of the Corrective Maintenance and Preventative
Maintenance for the Services, Fibre and cable maintenance and
accommodation maintenance.
2. INTERPRETATION
2.1 In this Schedule the Interpretations in the Network Services
Agreement will apply and in addition the following expressions shall
have the following meanings unless the context otherwise requires:
"Acceptance Test" means all those tests and proving
works set out in Appendix A to
Schedule 1 which will be carried out
by EGT and may be witnessed by the
User to demonstrate that the Services
are functioning in accordance with the
Performance Specification;
"Connection Number" means the number that uniquely
identifies on EGT's Interface
Equipment the point at which the
connection to the User's Equipment is
made;
"Corrective Maintenance" means works necessary to repair the
Network or Interface Equipments to
restore the Services following a
Disruption;
"Fault Control Point" means the EGT Network Management
Centre or HER Network Operation Centre
as specified in Schedule 1 Clauses 12
and 13 being the single point of
contact for all maintenance
activities;
"Permanent Repair" means a repair of a standard such that
the Services are re-instated in
accordance with the Performance
Specification and no further attention
as a result of the cause of the
associated Disruption is required by
EGT;
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47
Planned Work" means all work required to be carried
out by this Schedule which is
programmed for execution at a future
time;
"Preventative Maintenance" means the reasonable planned
systematic testing and inspection of
the Network and Interface Equipment to
identify (so far as such reasonable
tests are capable of identifying)
faults and defects in the Network or
Interface Equipment or a state of
affairs which could reasonably be
expected to give rise to such faults
and defects;
"Section" means a length of the Network between
two adjacent User Breakout points;
"Temporary Repair" means a repair made using any
technique chosen by EGT to restore or
re-instate the Services until a
Permanent Repair has been completed.
3 DUTIES OF THE USER
3.1 The User shall monitor the Services in order to detect any
Disruption to the Service.
3.2 In the event that:-
3.2.1 The User detects a Disruption and such Disruption continues;
and
3.2.2 The User requires EGT to carry out Corrective Maintenance to
the Network or Interface Equipments following the detection of
a Disruption;
the User shall so notify EGT (such notice herein after referred to
as a "Fault Notice").
3.3 A Fault Notice shall contain the following information:-
3.3.1 a unique fault reference number allocated by the User;
3.3.2 the time at which the User issued the Fault Notice to EGT;
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3.3.3 the Section in which the fault or defect giving rise to the
Disruption is located;
3.3.4 the Connection Number of the Service that is Disrupted; and
3.3.5 any further information available to the User which may assist
EGT in locating the fault and restoring the Services;
all of the foregoing information will be notified to the EGT Fault
Control Point by telephone and within 2 hours thereafter confirmed
by the User by facsimile transmission.
3.4 Subject to Clause 5.1.2. the User shall provide reasonable
assistance in connection with the location of a fault or defect
within a Section giving rise to a Disruption. The User shall act
reasonably and without delay in determining whether it shall agree
to such request and shall not delay in notifying EGT of its
decision. Each Party shall bear its own costs incurred in attempting
to locate any such fault or defect within a Section.
3.5 If upon service of a Fault Notice:
3.5.1 it shall be found that the Fault Notice contains a material
inaccuracy; or
3.5.2 it is found that the deterioration in the Service which is the
subject of the Fault Notice has been caused by the act or
omission of the User or its Customers contrary to the notified
requirements of EGT or to the ordinary and proper standards of
usage applicable to the Designated Purpose; or
3.5.3 it is found that the deterioration in the Service which is the
subject of the Fault Notice is not due to a Disruption;
(any such Fault Notice hereinafter referred to as a "Defective
Notice") then:-
3.5.4 immediately on becoming aware of a matter referred to in
Clauses 3.5.1, 3.5.2 and 3.5.3 the User shall advise EGT
accordingly (unless the User was made aware of such matter by
EGT); and
3.5.5 the User shall pay to EGT within 28 days of demand a fee equal
to such reasonable costs if any as EGT shall have incurred in
responding to the Defective Notice and attempting to carry out
Corrective Maintenance; and
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3.5.6 the Defective Notice shall cease to have effect and all
provisions in respect of Time Limits for the completion of
Corrective Maintenance and the provisions in respect of the
Loss of Service Payments in the Agreement shall cease to have
effect in respect of the Defective Notice but without
prejudice to other relevant provisions in the Agreement; and
3.5.7 in the event that:
3.5.7.1 The Defective Notice is in respect of a Disruption;
and
3.5.7.2 the User continues to require EGT to carry out
Corrective Maintenance hereunder;
the User shall issue a further Fault Notice which shall
validly contain the information referred to in Clause 3.3
hereof.
3.6 Subject to Clause 5.1.4 the User shall provide assistance to carry
out the above Corrective Maintenance in which case the User shall
act reasonably and without delay in determining whether it will
agree to such a request and shall not delay in notifying EGT of its
decision. For the avoidance of doubt the User will not be requested
to provide on-site assistance.
3.7 For the avoidance of doubt the User shall be responsible for all
corrective maintenance, preventative maintenance and all other works
or tests of whatsoever kind to the User's Equipment for the purpose
of using the Services but shall not carry out Corrective Maintenance
or Preventative Maintenance.
3.8 It is recognised by the User that in certain circumstances EGT may
require the User to power down the lasers and otherwise make safe
the User's Equipment to allow work to take place on the Network or
Interface Equipments; the User will comply with all such requests
and will leave the User's Equipment in such condition until
authorised by EGT's Fault Control Point that it may be restored to
its operational condition. Such requirements will be considered
Corrective Maintenance or Preventative Maintenance as appropriate.
4 DUTIES OF EGT
4.1 EGT shall supply the User with such accurate records of the Network
and interface Equipment as the User may reasonably request in order
to enjoy the Services within four weeks of the Provision Date or
within six weeks of any change to the Network or Interface
Equipments that might impact on the User's enjoyment of the
Services. Such records to include drawings, specifications and
results of tests in a format to be agreed carried out under Clause 7
hereof as appropriate to the Services. EGT retains all copyright in
such records and they
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CONFIDENTIAL TREATMENT
shall form part of EGT's Confidential Information.
4.2 When carrying out work on the Network or Interface Equipments EGT
will provide for itself communications facilities (other than mobile
phones, which may interfere with the User's Equipment) independent
of the Services to allow EGT on-site work teams to maintain contact
with the EGT Fault Control Point.
4.3 In respect of Preventative Maintenance:-
4.3.1 EGT shall plan and carry out all Preventative Maintenance
which EGT deems necessary to the Network or Interface
Equipment;
4.3.2 EGT shall consult with the User and use reasonable endeavours
to take account of the User's reasonable requirements and its
obligations under Clause 6.3 of this Schedule when planning
Preventative Maintenance; and
4.3.3 all works in respect of such Preventative Maintenance shall be
carried out by EGT as Planned Work in accordance with Clause
6.
4.4 EGT shall carry out Corrective Maintenance to the Network and
Interface Equipment upon:-
4.4.1 receipt of a Fault Notice in accordance with Clause 3.2; such
Corrective Maintenance shall be carried out by EGT in
accordance with Clause 5;
4.4.2 detecting a state of affairs which could give rise to a
Disruption whilst carrying out Preventative Maintenance to the
Network or Interface Equipment; such Corrective Maintenance
shall be carried out by EGT in accordance with Clause 6.
However notwithstanding the provisions of Clause 6 the Parties
hereby acknowledge that they may agree to carry out works at a
time affording the User less notice than specified in Clause
6.
5 CORRECTIVE MAINTENANCE
5.1 Upon receipt of the Fault Notice under Clause 3.2 EGT shall:-
5.1.1 acknowledge receipt of the Fault Notice (such acknowledgement
confirming the time at which EGT received the Fault Notice for
the purposes of Clause 3.3);
5.1.2 If it requires the assistance of the User under Clause 3.4 so
notify the User within ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of receipt
of the Fault Notice;
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CONFIDENTIAL TREATMENT
5.1.3 use its reasonable endeavours, including the use of any test
equipment which EGT considers appropriate, to locate the cause
of the Disruption within the Section and notify the User with
an estimate of when in EGT's opinion the Services are likely
to be re-instated;
5.1.4 within ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## of notifying the User of
the location of the fault or defect notify the User if the
User is required to give assistance under Clause 3.6.
5.1.5 update the User on an hourly basis of progress in resolving
the Fault Notice.
5.2 Subject to Clause 3.5.6 and Clause 5.3 upon receipt of a Fault
Notice EGT shall complete Corrective Maintenance within the Time
Limits specified in Schedule 1.
5.3 In respect of fibre maintenance EGT may make a Temporary Repair
using whatever techniques it considers to be suitable to remedy a
Disruption providing that it advises the User of the likely impact
if any of such Temporary Repair on the quality of the Services and
the parties agree on such measures of performance during such
Temporary Repair. Thereupon EGT and the User shall agree a time to
complete a Permanent Repair (each Party shall act reasonably in this
respect). Such works in completing a Permanent Repair shall be
carried out as Planned Work.
5.4 For the avoidance of doubt in respect of a Disruption remedied by a
Temporary Repair for the purpose of calculating time elapsed under
the Time Limit in Clause 5.2 Corrective Maintenance shall be deemed
to have been completed upon issue of the Notice referred to in
Clause 7.1.2.
5.5 EGT may restore the Services by repairing or substituting
alternative Interface Equipment, Network equipment, cables,
conductors or optical fibres provided that the Services when so
restored comply with the Performance Specification and provided EGT
issues the User with revised drawings, specifications and test
results as appropriate for the User to enjoy the Services.
5.6 For the purpose of calculating time elapsed in respect of any Time
Limit under this Schedule each Party shall keep, maintain and upon
request disclose to the other Party proper written records of the
following periods:
5.6.1 any period during the Time Limit where the User shall have
been in default of this Agreement;
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5.6.2 any period wherein EGT was unable to perform its obligations
contained in this Schedule due to an act or omission of the
User (which shall include any delay by the User in performing
any of its obligations under this Schedule);
5.6.3 any period during which an event of Force Majeure prevents
Corrective Maintenance being carried out.
6 PLANNED WORK
6.1 Before EGT carries out any Planned Work to the Network or Interface
Equipments, EGT shall give the User notice of such Planned Work as
follows:-
6.1.1 for Planned Work to the Network or Interface Equipments not
involving an interruption to the Services EGT shall give three
working days notice of the commencement of the work;
6.1.2 should it be necessary for Planned Work to involve
interruption to the Services EGT shall give the User as much
notice as it is reasonably able to give but in any event not
less than 30 days notice of the commencement of such Planned
Work and the User shall afford all assistance to EGT to enable
the work to commence on the planned date and for it to be
completed efficiently;
6.1.3 Planned Work undertaken in order to complete a Permanent
Repair under Clause 5.3 hereof shall be carried out at the
time agreed by the Parties in accordance with Clause 5.3
hereof.
6.2 For the avoidance of doubt, a Planned Outage which lasts longer than
has been scheduled shall be treated as a Disruption for the
remainder of its duration.
6.3 EGT shall not arrange for Planned Outages on both Routes at the same
time under any circumstances; subsequent Planned Outages shall be at
least 3 working days apart. Furthermore, EGT shall use reasonable
endeavours not to implement any Planned Outage when the User
notifies EGT that there is or is likely to be an isolation of one of
the User's nodes (bearing in mind the impact on EGT's Network of
carrying out the works against the impact of delaying the works
until the outage on the User's Network is repaired).
6.4 For the purpose of calculating time elapsed during a Planned Outage,
Planned Work shall be deemed to have commenced at the time agreed
between the parties under Clause 6.1.3 hereof and ended on issue of
a notice under Clause 7.1.2 hereof.
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7 SERVICE ACCEPTANCE TESTS
7.1 Upon completion of Corrective Maintenance whether by Temporary
Repair or Permanent Repair or on completion of Planned Work to the
Network or Interface Equipment EGT shall:-
7.1.1 carry out Acceptance Tests in accordance with Clause 8 of the
Technical Definition at Appendix A to Schedule 1; and
7.1.2 upon satisfactory completion of the Acceptance Tests issue a
Notice to the User of the results of such tests.
7.2 For the purposes of calculating time elapsed under any Time Limit
contained in Clause 5.2 Corrective Maintenance shall be deemed to
have commenced on issue of a valid notice under Clause 4.2 and been
completed upon issue of the Notice referred to in Clause 7.1.2.
7.3 Any dispute under this Clause 7 in relation to any matter in
connection with Acceptance Tests shall be referred to the Expert in
accordance with the Agreement.
8 CONTROL, IMPLEMENTATION AND EXECUTION OF THE SERVICES
8.1 EGT and the User shall nominate suitably skilled and equipped staff
with responsibility for the reporting control implementation
execution and review of the maintenance and support provided under
this Schedule for the Services.
8.2 Regular meetings shall take place between the Parties to monitor the
operation of this Schedule amid to revise where and when necessary
the Support and Maintenance Operating Procedures which will be
agreed between the parties prior to the Provision Date.
9 ACCOMMODATION MAINTENANCE
9.1 EGT shall ensure that, at all times, the Terminal Stations and
Regenerator Sites are kept in a good state of repair.
9.2 EGT shall and the User shall to the extent that it is within its
control take proper precautions to ensure that, at all times, the
Terminal Stations and Regenerator Sites are kept clean and tidy and
in conformity with all applicable health and safety standards and
free from environmental hazards such as flammable materials and
asbestos or other hazards which may reasonably be held to present a
risk to any equipment or to persons working on or inspecting such
equipment.
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9.3 EGT shall monitor and give notice to the User of any environmental
or other incidents which are likely to have an immediate or
potential effect upon the User Equipment and/or the Services.
9.4 EGT shall keep the Terminal Stations and Regenerator Sites secure at
all times and ensure that only persons authorised under this
Agreement and persons authorised by EGT shall have access to those
sites.
9.5 EGT shall install or permit the User to install or have installed at
the Terminal Stations and regenerator sites alarm systems for
detection of smoke, temperature changes, water presence and other
similar events.
9.6 Where EGT fails to provide the accommodation maintenance in
accordance with this Clause, without prejudice to the User's other
rights and remedies, EGT shall permit and enable the User to provide
such maintenance.
10 PRIORITY OF RESTORATION
10.1 EGT shall give at least equal priority to the restoration of Links
on the Network as it gives to restoration of its own services and
those provided to EGT's other Customers
10.2 EGT represents to the User that all Maintenance provided by EGT to
the User under this Agreement are provided at prices and upon terms
and service levels that are no less favourable in aggregate to the
User than the prices, terms and service levels offered to its most
favoured customers for substantially similar services. EGT will
improve its service levels as necessary to remain in compliance
with the commitment on a going forward basis.
11 USER'S CABLE MAINTENANCE
11.1 EGT shall provide maintenance to the User's network from the
Terminal Stations to the User's beach manhole in accordance with the
terms of this Schedule provided that:
11.1.1 the User shall provide to EGT all spare cable to be used for
maintenance;
11.1.2 EGT shall store the spare cable in a secure location on an
EGT Site, the exact site to be agreed between the Parties;
11.1.3 the User shall provide 1 day of training for up to 15 persons
to EGT on maintenance of the land/subsea cable joints;
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11.1.4 the user shall pay to EGT its costs incurred in carrying out
this maintenance activity. The payment terms in Schedule 2
Clause 6 shall apply.
12 LIABILITY
12.1 For the avoidance of doubt the liability of the Parties under this
Schedule shall be limited in accordance with the Clauses of the
Agreement as if the same had been expressly set out herein.
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APPENDIX 1 TO SCHEDULE 4 - SUPPORT AND MAINTENANCE OPERATING PROCEDURES
To be agreed between the Parties prior to the earliest Provision Date under the
Agreement.
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