Exhibit 10.24
[*] Designates material for which confidential treatment has been requested,
which material has been separately filed with the Securities and Exchange
Commission.
Scitor International Telecommunications Services, INC.
A SITA Group Company
Agreement for managed Scitor ITS
data network services
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Customer Name: Date:
NetStar International Telecommunications, Inc. April 28, 1995
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Customer Address: Agreement No:
5820 Stoneridge Mall Road, Suite 214 MDNS/US/NC/95-99
Pleasanton, CA 94588
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Customer Contact: Telephone No:
Peter Gust (T) 510-734-5100
(F) 510-734-5100
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In accordance with the terms of this Agreement, Scitor International
Telecommunications Services, Inc. ("Scitor ITS") agrees to make available to the
above Customer ("Customer") certain managed data network services as more fully
described in this Agreement or as may be ordered from time to time by Customer
and accepted by Scitor ITS. All accepted orders shall become a part of this
Agreement.
THE PARTIES HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS.
THE PARTIES FURTHER AGREE THAT IT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN
THEM AND SUPERSEDES ALL PROPOSALS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATION
BETWEEN THEM RELATING TO THE SUBJECT HEREOF. NO AGREEMENT OR DOCUMENT HAVING AS
ITS PURPOSE OR EFFECT THE VARIATION, ADDITION OR DELETION OF ANY OF THE TERMS
AND CONDITIONS INDICATED IN THIS AGREEMENT WILL BE BINDING UNLESS SIGNED FOR AND
ON THE BEHALF OF SCITOR, ITS BY AN AUTHORIZED SIGNATORY.
Scitor ITS Customer /s/ German Burtscher
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Authorized Signatory Authorized Signatory
Name /s/ Bruce D. Jones Name German Burtscher
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Title Title Vice President
Bruce D. Jones
EXECUTIVE V.P & GENERAL MGR. MAY 15, 1995
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Date 5/26/95 Date
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withhold such confirmation of acceptability. Any Equipment connected by
Scitor ITS shall be deemed to comply with this Clause 2.4
2.5 Customer hereby authorizes Scitor ITS to make reasonable use of any user
codes, numbers or passwords allocated to Customer for the purpose of
providing network management and support to Customer.
2.6 Customer shall be responsible for obtaining and maintaining all such
equipment and communications lines, magnetic media, programs, software and
other facilities, including the provision of personnel, as are reasonably
necessary and acceptable to Scitor ITS for communications with the Service
(collectively the "Customer Facilities"). Neither Scitor ITS nor its agents
or sub-contractors shall have any responsibility for or liability with
respect to the use, operation or performance of such Customer Facilities.
3. SUPPORT SERVICES
3.1 Scitor ITS shall provide access by voice and/or data link, if available, to
help desk facilities at locations of Scitor ITS' choice in order for
Customer to obtain technical advice and guidance on the operation and use
of the Service.
3.2 Scitor ITS shall provide [*] management services comprising: (a) the [*]
and [*] of the [*] of [*] and [*] from the relevant [*] as applicable; (b)
the testing and acceptance of [*]; (c) [*] fault restoration upon becoming
aware of a fault: and (d) [*] to [*] providers of [*], [*] or other
telecommunications equipment in local currency on Customer's behalf, where
applicable.
4. EQUIPMENT
4.1 Scitor ITS shall connect the Equipment at the Locations, or such other
locations agreed to by the Parties (if requested by Customer) on dates to
be agreed by the Parties. Scitor ITS shall provide reasonable notification
of the date of connection and shall connect at times to be agreed by the
Parties. Should connection require the removal or disconnection of any
existing equipment of Customer, Customer shall permit, and obtain all
necessary consents for, such removal or disconnection and shall give Scitor
ITS all necessary assistance to enable such work to be carried out.
4.2 On the date of connection of the Equipment, Scitor ITS shall commission the
Equipment, which on successful commissioning shall be deemed to be accepted
by Customer. For the purpose of this Clause 4.2,"successful commissioning
shall mean that Scitor ITS shall have checked powered up, and then carried
out the manufacturer' initialisation tests on the Equipment, save that
should Customer require additional commissioning tests, Scitor ITS shall
carry out such alternative tests provided that such tests are reasonably
necessary to establish the operability of the Equipment and provided,
further, that Customer has given Scitor ITS at least 30 days notice prior
to the date of delivery of the Equipment to the Location.
4.3 The lease term shall commence on the date of acceptance of the Service
pursuant to Clause 11.2 at the Location to which the Equipment relates and
shall thereafter continue in accordance with the term of this Agreement,
subject to Clause 5.1 of Attachment 1 and Clause 1.7 of Attachment 2 .
4.4 The lease and any other charges shall be as specified in Attachment 1.
4.5 Except as set forth in Clause 1.7 of Attachment 2, the Equipment shall at
all times remain the sole and exclusive property of Scitor ITS or its sub-
contractors and Customer shall have no rights or interest in the Equipment
except for quiet possession and the right to use the Equipment under the
terms and conditions of this Agreement.
4.6 Customer shall have the following additional obligations with respect to
the Equipment: (a) not to sell, assign, sub-let, pledge or part with
possession or control of or otherwise deal with the Equipment or any
interest therein: (b) not to change, remove or obscure any labels, plates,
insignia, lettering or other markings which are on the Equipment at the
[*] CONFIDENTIAL TREATMENT REQUESTED
time of connection thereof or which may thereafter be placed on the
Equipment by Scitor ITS or by any person authorized by Scitor ITS; (c) to
keep the Equipment free from distress, execution or any other legal
process; (d) not to move the Equipment from the Location (or other
Location) to which it was delivered and connected without Scitor ITS' prior
written consent; and (e) not to use the Equipment or permit the same to be
used contrary to any law or any regulation for the time being in force.
4.7 Customer shall have full responsibility for the upkeep of the Equipment.
For the purpose of this Clause 4.7, "responsibility for upkeep" shall mean
that Customer shall: (a) ensure that proper environmental conditions as
recommended by the manufacturers are maintained for the Equipment and that
the exterior surfaces are kept clean and in good condition; (b) not make
any modifications to the Equipment: and (c) not use in conjuction with the
Equipment any accessory, attachment or additional equipment other than that
which has been supplied by or approved in writing by Scitor ITS.
4.8 Upon termination or expiry of this Agreement. Customer shall surrender
possession of the Equipment in good order, repair and condition, to Scitor
ITS, fair wear and tear excepted.
4.9 Scitor ITS shall ensure that the Equipment is at the time of commissioning,
and remains during the term of this Agreement, in good working order. If a
Service fault occurs which has been caused by a failure in the Equipment,
Scitor ITS shall restore or repair the Service to the affected Location as
soon as practicably.
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
expressions shall have the following meanings:
1.2 "Agreement" shall mean this managed data network services agreement and the
Attachments and Schedules attached hereto and made a part hereof.
1.3 "Dollars" or "S" shall mean United States dollars.
1.4 "DTE" shall mean Data Terminating Equipment.
1.5 "Effective Date" shall mean the date this Agreement is signed by an
authorized signatory of Scitor ITS.
1.6 "Equipment" shall mean the communications equipment, servers, modems,
cables and connectors supplied under lease by Scitor ITS to Customer under
this Agreement.
1.7 "Initial Term" shall mean a period commencing on the Effective Date and
ending 5 (five) years after the date of acceptance of the Service by
Customer (pursuant to Clause 12.2) at the last Location to be connected
under this Agreement.
1.8 "Locations" shall mean the locations specified in Attachment 2.
1.9 "Network" shall mean the communications processors, related equipment, and
circuits used by Scitor ITS for the provision of the Service, excluding
Tail Circuits to the Locations and any communications equipment (including
the Equipment) sited at the Locations.
1.10 "Network Path Availability" shall mean the availability of two way
communication of the virtual communication link (expressed as a percentage)
between the access entry port on which the DTE originator is connected and
the Network access exit port on which the DTE destination is connected,
excluding maintenance windows, host links and Tail Circuits.
1.11 "Network Transit Time" shall mean the elapsed time taken for the one way
transmission of a 128 character length packet (a "Packet") between the
entry point on the Network Node to which Customer's transmitter of the
Packet it connected, and the exit point on the Network Node to which the
receiver of the Packet is connected.
1.12 "Node" shall mean a node of the Network to which a Tail Circuit is to be
connected for the purposes of rendering the Service to Customer such Nodes
being deployed at such times and places as determined by Scitor ITS.
1.13 "Parties" shall mean Scitor ITS and the Customer, "Party" shall mean either
Scitor ITS or the Customer as the context requires.
1.14 "Service" shall mean managed data network services based on X.25 protocol
and all related and ancillary services thereto, or any of same, including
the provision of Equipment and Software all as more fully described in
Attachment 1, or such other managed data network services agreed to by the
Parties from time to time; the Service expressly excludes any PSTN dial-up
lines or modems.
1.15 "Software" shall mean the software programs and each and every component
thereof, as amended from time to time, including all developments, versions
or releases thereof whether existing now or becoming available in the
future, and all related documentation, which may be supplied by Scitor ITS
in connection with the provision of the Service, whether integral to the
Equipment or otherwise.
1.16 "Support Services" shall mean the services as described in Clause 3.
1.17 "Tail Circuit" shall mean a telecommunications circuit or other capacity
leased from the relevant telecommunications authorities (PTTs) and which
permits the connection of a Location to the nearest Scitor Network node.
2. PROVISION OF SERVICE
2.1 Scitor ITS agrees to provide (subject to Clause 2.3), and Customer agrees
to obtain from Scitor ITS, the Service subject to the terms and conditions
of this Agreement and subject to payment of the charges set out in
Attachment 1. Customer understands and agrees that Scitor ITS provides the
Service for the benefit of Customer only and nothing in this Agreement
shall entitle customer to resail the Service to any third party.
2.2 Scitor ITS reserves the right to control, direct and establish procedures
for the use of the Service and Customer agrees to follow the instructions
and procedures of Scitor ITS with respect to the use of the Service. Scitor
ITS also reserves the right to make operational changes in the Service. In
exercising any such rights under this Clause 2.2, Scitor ITS shall not
adversely affect the Service or increase the charges payable by Customer
under this Agreement.
2.3 Customer shall ensure at all times that its use of the Service (including
its connection of any apparatus to any network used to deliver the Service)
is in accordance with all applicable telecommunications, data protection
and other laws, licenses or regulations.
2.4 Any terminal equipment used to gain access to the Service must be approved
by Scitor ITS prior to its connection to the Network. Scitor ITS reserves
the right to disconnect (or require the disconnection of) any terminal
equipment in breach of this provision. Customer shall notify Scitor ITS of
any terminal equipment it wishes to connect to the Network and Scitor ITS
shall promptly confirm its acceptability under this Clause 2.4. Scitor ITS
shall not unreasonably
possible following such notification. Scitor ITS further agrees that a
Scitor ITS sub-contractor will, if necessary as determined by Scitor ITS,
arrive at the affected Location and commence any remedial activities within
4 working hours of notification, provided the notification is received, and
the call-out can be made during the normal business day of the Scitor ITS
sub-contractor nearest to the affected Location, and provided, also that
the affected Location is within a 50 kilometer radius of said centre
("Normal Service"). Remedial service on Equipment other than Normal Service
shall be carried out by Scitor ITS through its sub-contractors as soon as
is practicably possible, taking into account availability of service
personnel, the time and date of Customer's notification and the country
concerned.
4.10 Scitor ITS shall not be responsible for Service faults, nor shall Scitor
ITS be obliged to comply with its obligations under Clause 4.9, if such
faults occur as a result of: (a) damage to the Equipment during transport
activity or connection carried out by Customer or any third party other
than as authorised by Scitor ITS; (b) interventions other than normal
interventions carried out by non Scitor ITS personnel; (c) modifications to
the Equipment which have not been approved by the Equipment manufacturer or
carried out by personnel unapproved by Scitor ITS; (d) improper treatment
to the Equipment, failure to meet the Equipment manufacturer's
specifications, or environmental conditions by non-Scitor personnel; or (e)
accident or negligence on the part of Customer or any force majeure event.
Any site visits or repairs made necessary by the events specified in this
Clause 4.10 shall be subject to prior agreement by Scitor ITS and may cause
Customer to incur increased charges for the Service at the affected
Location, such charges to be commensurate with the cost to Scitor ITS of
restoring or repairing the Service. Nothing in this Clause 4.10 shall
affect Customer's obligations in respect of Equipment under the other
provisions of this Clause 4.
4.11 In this Clause 4. and notwithstanding definition 1.8. 'Locations' means
Locations as such term is defined in 1.8 and other locations where the
Equipment may be situated and connected, as agreed by the Parties from time
to time.
5. SOFTWARE
Customer is hereby granted non-exclusive and non-transferrable licenses to
use Software strictly in performing this Agreement. The Software and any
intellectual property rights of whatever nature in the Software are and
shall remain vested in Scitor ITS or an associated company of Scitor ITS
and nothing contained in this Agreement shall convey any ownership interest
in the Software to Customer. Customer acknowledges that the provision of
Software is made by Scitor ITS strictly for use in conjunction with the
Service and Customer agrees not to produce, copy, alter, modify, or add to
the Software or any part thereof, nor to attempt or to allow a third party
to attempt to reverse engineer, translate or convert the Software from
machine readable to human readable form, except as permitted by applicable
law.
6. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
6.1 It is understood and agreed by Customer that all intellectual property
rights in the Service including, all specifications, manuals and other
documents provided by Scitor ITS to Customer as part of or in relation to
the Service are either licensed to or the property of Scitor ITS and
nothing contained in this Agreement shall be deemed to convey any title or
ownership interest to Customer. Customer shall use its best efforts not to
disclose such proprietary information to third parties without Scitor ITS'
prior approval.
6.2 Customer and Scitor ITS acknowledge that they will receive confidential
information and trade secrets ("Confidential Information") from each other
in connection with the Agreement. Confidential Information shall be deemed
to include all information each Party receives from the other Party, except
anything designated as not confidential. Customer and Scitor ITS agree to
maintain the secrecy of Confidential Information and agree neither to use
it (except for the purposes of performing the Agreement) nor to disclose it
to anyone outside Customer or Scitor ITS or to anyone within Customer or
Scitor ITS who does not have a need to know it in order to perform under
the Agreement, except with the consent of the other Party or in accordance
with the order of a court of competent jurisdiction. Confidential
Information shall not include any information which is publicly available
at the time of disclosure or subsequently becomes publicly available
through no breach of this provision by Customer or Scitor ITS or is
rightfully acquired from a third party who is not in breach of an agreement
to keep such information confidential.
7. CHARGES AND PAYMENT
7.1 All charges shall be as specified in Attachment 1 shall be invoiced by
Scitor ITS to Customer, monthly in arrears unless otherwise provided in
Attachment 1, and shall be payable without deductions or set-off within 30
days of receipt of invoice by Customer.
7.2 All charges stated are exclusive of any value added tax, sales tax, excise
tax, gross receipts tax and any similar tax which may be applicable thereto
and Customer agrees to pay all such applicable taxes.
7.3 Scitor ITS reserves the right to make a reasonable charge for any work done
by Scitor ITS which is attributable to Customer's failure to perform its
obligations or not specified by Scitor ITS as part of any Service provided.
7.4 Charges for components and materials and for magnetic media, stationery and
other supplies and for travel and subsistence (when not specifically
included in the Service) are separately payable by Customer.
7.5 Failure by Customer to pay any charge according to the terms of this
Agreement shall entitle Scitor ITS without prejudice to its other rights
and remedies under the Agreement to (a) suspend the provision of the
Service following 30 days written notice, provided that Customers has not
remedied its default within that time and /or (b) charge interest on a
daily basis from the original due date at the rate of 2 percentage points
above the Chase Manhattan Bank's prime rate in force from time to time.
8. EXCLUSIONS AND LIMITATIONS OF LIABILITY
8.1 Scitor ITS is not liable for any delay in performing its obligations or for
any failure to perform its obligations under the Agreement if the delay or
failure results from circumstances beyond Scitor ITS' reasonable control.
Scitor ITS will notify the customer in a reasonable timeframe of any delay
in performing its obligations or of any failure to perform its obligations
under this Agreement.
8.2 EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT, SCITOR ITS GIVES NO
WARRANTIES AND HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE SERVICE OR ANY EQUIPMENT OR SOFTWARE PROVIDED
UNDER OR IN RELATION TO THIS AGREEMENT.
8.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SCITOR ITS
SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR
PUNITIVE DAMAGES HOWSOEVER ARISING INCLUDING, BUT NOT LIMITED TO, SUCH
DAMAGES ARISING FROM THE USE OF THE SERVICE BY CUSTOMER OR BY ITS OFFICERS,
EMPLOYEES, OR AGENTS OR BY ANY THIRD PARTY, WHETHER OR NOT AUTHORIZED BY
CUSTOMER, EVEN IF SCITOR ITS WAS MADE AWARE OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE.
8.4 In the event that data furnished by Customers, whether transmitted via the
Network or otherwise, is lost, destroyed or damaged due to the negligence
of Scitor ITS, its agents or employees, Customer's sole remedy shall be the
repair or replacement by Scitor ITS of such lost, destroyed or damaged
data, provided however that such repair or restoration can reasonably be
performed by Scitor ITS and provided, further, that Customer furnishes
Scitor ITS with all source data, in machine readable form, necessary for
such repair or restoration.
5 SUBJECT TO THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN CLAUSES
8.1, 8.2, 8.3 AND 8.4 ABOVE. SCITOR ITS' LIABILITY TO CUSTOMER UNDER THIS
AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND INCLUDING LIABILITY
FOR NEGLIGENCE, IS LIMITED IN RESPECT OF EACH EVENT OR SERIES OF CONNECTED
EVENTS TO $100,000.
8.6 Scitor ITS' sole obligations and liabilities are as stated herein and all
other representations, conditions, warranties and terms express or implied
whether by statute law or otherwise are hereby excluded to the full extent
permitted by law.
9. NETWORK PATH AVAILABILITY
9.1 Subject to Clause 9.2, Scitor ITS shall warrant Network Path Availability
(NPA) for each Location as set out in Attachment 4 (as updated from time to
time to incorporate additional Locations).
9.2 If Scitor ITS breaches any NPA warranty for 2 consecutive months or for any
4 months in any 12 month period, such breach to be clearly substantiated by
Customer, then Customer's sole remedy for such breach under this Agreement
shall be an entitlement to cancel the Service at the Location directly
affected by such breach, without financial liability, on giving Scitor ITS
30 days written notice. Nothing contained in this Clause 9.2 shall affect
Customer's liability to pay for Service rendered prior to the effective
date of such cancellation. A breach of the NPA warranty at any Location
shall not constitute a material breach of this Agreement.
10. NETWORK TRANSIT TIME
10.1 Subject to Clause 10.2. Scitor ITS shall warrant the Network Transit Times
(NTT) set out in Attachment 4 (as updated from time to time to incorporate
additional Locations).
10.2 If Scitor ITS breaches any NTT warranty for 3 consecutive months, such
breach to be clearly substantiated by Customer, then Customer's sole remedy
under this Agreement for such breach shall be an entitlement to cancel the
Service at the Location directly affected by such breach without financial
liability on giving Scitor ITS 30 days written notice. Nothing contained in
this Clause 10.2 shall affect Customer's liability to pay for Service
rendered prior to the effective date of such cancellation. A breach of the
NTT warranty at any Location shall not constitute a material breach of this
Agreement.
11. DURATION AND TERMINATION
11.1 This Agreement shall come into force on the Effective Date and shall then,
subject to Clause 11.2 below remain in force for the duration of the
initial Term. It will be renewed automatically for additional terms of 12
months unless either Party gives to the other notice of its intention to
terminate at least 60 prior days to the expiration of the initial Term or
any renewal term.
11.2 Either Party may terminate this Agreement by notice in writing to the other
forthwith in any of the following events: (a) if the other Party is guilty
of any material breach, non-observance or non-performance of its
obligations hereunder or any of them and does not remedy the same (if it is
capable of remedy) within 30 days of notice of such failure or breach being
given by the non-defaulting Party; (b) if an order is made or an effective
resolution is passed for the dissolution or winding up the other Party
except for the purposes of an amalgamation, merger or reconstruction; (c)
if an encumbrancer takes possession or a receiver is appointed over the
whole or any part of the undertaking or assets of the other, or the other
fails to provide adequate assurance of its ability to render due
performance upon demand; or (d) if the other becomes insolvent or makes any
special arrangements or any special assignment for the benefit of its
creditors or is the subject of a voluntary or involuntary filing under the
bankruptcy laws of any jurisdiction.
11.3 Termination of this Agreement for any cause shall not affect any rights or
obligations of the Parties in relation to anything done prior to such
termination and the provisions of this Agreement shall continue to bind the
Parties insofar and so long as may be necessary to give effect to such
rights and obligations.
12. COMMISSIONING/ACCEPTANCE
12.1 Scitor ITS shall connect the Service at the Locations according to
procedures set out in Attachment 3.
12.2 Customer shall be deemed to have accepted the Service at each of the
Locations on completion of the commissioning tests specified in Attachment
3.
13. NOTICES
All notices under this Agreement shall be in writing addressed to the
Parties at their respective addresses stated in the cover page of this
Agreement, or as may be otherwise notified under this Clause 13. If sent
by first class mail, notices shall be deemed to have been given 2 days
after the date of mailing. Notices may also be sent by fax provided that
the sending Party obtains confirmation of the receipt of such notices from
the recipient. If so sent, such fax notices shall be deemed to have been
given on the first business day (in the country of receipt) after the date
of transmission.
14. ASSIGNMENT
Customer may not assign, sub-contract or otherwise, dispose of this
Agreement or any part hereof or any benefit hereunder without the prior
written consent of Scitor ITS.
15. GENERAL
15.1 No Waivers:- No failure or delay of either Party in exercising any right,
power, or privilege under this Agreement (and no course of dealing between
the Parties) shall operate as a waiver of any such right, power or
privilege. No waiver of any default on any one occasion shall constitute a
waiver of any subsequent default. No single or partial exercise of any
such right, power or privilege shall preclude the further or full exercise
thereof.
15.2 No Third Party Beneficiaries, Agency or Partnership:- The provisions of
this Agreement are solely for the benefit of the Parties. No other party,
including invitees, members of the general public and other third parties
are intended to have nor shall have any rights whatsoever under this
Agreement, whether for injury, loss or damage to persons or property, or
for economic loss, damage or injury otherwise. This Agreement is not
intended to create a joint venture or partnership between the Parties and
neither Party is authorized to act as the agent of the other.
15.3 Invalidity:- If any term, provision or clause of this Agreement or any
portion of such term, provision, or clause is held invalid or
unenforceable, the remainder of this Agreement will not be affected thereby
and each remaining term, provision or clause or portion thereof will be
valid and enforceable to the full extent permitted by law.
15.4 Entire Agreement:- This Agreement; including the Attachment, together with
any supplement hereto duly signed on behalf of Scitor ITS by an authorized
signatory, represents the entire agreements between the Parties and
supersedes all other agreements, oral or written, and all other
communications between the Parties relating to the subject matter hereof.
15.5 Supplements:- Each Party agrees to execute such additional documents as
may be reasonably necessary or appropriate to accomplish the purposes of
this Agreement.
15.6 Interpretation:- In this Agreement (a) the headings used are included for
convenience only and are not to be used in construing or interpreting this
Agreement (b) any reference to the plural includes the singular and any
reference to the singular includes the plural; and (c) any reference to a
clause, an attachment or to a schedule is to a clause, attachment or
schedule of this Agreement.
16. APPLICABLE LAW AND ARBITRATION
16.1 This Agreement and all matters regarding the interpretation and / or
enforcement hereof, shall be governed exclusively by the law of the State
of Delaware except insofar as the federal law of the United States of
America may control any aspect of this Agreement in which case federal law
shall govern such aspect.
16.2 All disputes, controversies or claims arising out of, or relating to this
agreement shall be settled exclusively by arbitration before a single
arbitrator in District of Colombia in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Each Party
irrevocably consents to personal jurisdiction and to ex parte action
should any Party refuse to participate in such proceedings. The
arbitrator's award shall be final and binding on all Parties and judgement
on the award may be entered and the award enforced in any court having
jurisdiction thereof.
ATTACHMENT 1. CHARGES
Scitor ITS shall provide Customer with the Service in the Locations and in
accordance with the charges all as specified herein or in the schedule to
this Attachment 1 ("Schedule 1").
1. PORT CHARGES
The port charges applicable to the Locations shall be as specified in
Schedule 1. Except as set forth in Clause 8 of this Attachment 1, all port
charges are fixed for the Initial Term. Scitor ITS shall commence its port
charges 30 days after the date of acceptance of the Service at a Location
and the first invoice shall be for the first 2 months charges.
Notwithstanding the above, no port charges shall be charged for the San
Francisco and Mexico City Locations for the first 90 days following
acceptance of the Service at such Locations.
2. CONNECTION/PROJECT MANAGEMENT/DISCONNECTION CHARGES
The charges applicable for connections shall be as specified in Schedule 1
and for disconnections shall be [*] per disconnected Location. All such
charges are one time charges payable in the case of connections on the date
of acceptance of the Service at a Location; in the case of disconnections,
such charges are payable on the date disconnection of the Location from the
Network. Connection charges for additional ports in the same Location shall
be [*].
3. [*] CHARGES
[*] charges shall be as notified to Customer by Scitor ITS. [*] charges are
monthly charges fixed for the Initial Term and then adjusted in line with
actual charges from [*] at that time. Any revised [*] charges shall be
fixed for the duration of any renewal term.
4. [*] MANAGEMENT CHARGES
For the management of each [*], Scitor ITS shall charge monthly [*] or [*]
of the monthly [*] charge, whichever is the greater.
5. EQUIPMENT LEASE CHARGES
5.1 Equipment lease charges applicable to this Agreement shall be as specified
in Schedule 1 or as otherwise notified by Scitor ITS (subject to precise
specification). Equipment lease charges shall be fixed for the first 3
years of the lease term. Thereafter the following shall apply: (a) Customer
may terminate the lease by paying Scitor ITS a lease buyout fee equal to
[*] of the original price paid by Scitor ITS or its subcontractors for the
Equipment: or (b) the lease term will continue for a further 2 years at a
reduced lease charge equal to [*] of the charge prevailing during the first
3 year period. At the end of 5 years from the commencement of the lease
term all lease charges shall cease and Scitor ITS will transfer ownership
of the relevant Equipment to Customer. Equipment lease charges shall
commence on the date of acceptance of the Service at a Location.
5.2 In addition to the charges set out in Clause 5.1 above (and Schedule 1),
Scitor ITS shall charge Customer a fee for Equipment connected in a
Location controlled by Scitor ITS or an affiliated company of Scitor ITS.
Such charge shall be as notified by Scitor ITS and Scitor ITS shall have no
obligation to connect Equipment at any such Location unless and until
Customer has agreed said charges.
6. SOFTWARE LICENSE FEES
Any Software license fees shall be as notified by Scitor ITS from time to
time unless the Software is integral to the Equipment, in which case no
separate charges shall apply.
[*] CONFIDENTIAL TREATMENT REQUESTED
7. UPGRADES
With reference to Clause 1 of Attachment 3 of the Agreement, subject to
this Clause 7, Scitor ITS agrees that Customer will be entitled to upgrade
the Service at any Location without penalty. Scitor ITS will, however,
charge Customer for any difference in charges resulting therefrom and in
addition its reasonable connection, disconnection and project management
charges relating to such upgrades. Any changes to the Service which reduce
service capacity or function, result in lower charges and are not
compensated by equivalent increases in service capacity or function and
charges, are excluded from this provision and the Parties shall agree such
changes and the financial effects resulting therefrom on a case by case
basis.
8. DISCOUNTS
8.1 Additional port connections either at the same Location, or in additional
Locations within a country, will be charged at the then prevailing Scitor
ITS list prices less a [*] discount.
8.2 Customer shall also receive the following discounts against port charges
for each Location to be provided with X.25 Service in the 4th and 5th year
following acceptance of the Service at the Location:
4th year [*]
5th year [*]
Final Attachment 1 Page 1
[*] CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT 2 - LOCATIONS
1.1 The Locations covered by this Agreement are as listed in the schedule to
this Attachment 2 ("Schedule 2"). Locations shall be added in phases and
Customer shall be entitled to modify which Locations are to be connected in
a phase. Notwithstanding the foregoing or anything else contained in this
Agreement. Scitor ITS shall be [*] for all Locations listed in Schedule 2.
1.2 Customer may connect additional Locations not identified on Schedule 2 on
receiving written consent from Scitor ITS. Customer understands and agree
that Scitor ITS obligation to provide Service to any Location not
identified on Schedule 2 is subject to Scitor ITS ability to operate in any
country.
1.3 Customer agrees that subject only to the following exceptions, all Location
shall remain connected to the Network for the term of this Agreement from
the date of acceptance of the Service. The exceptions are as follows:
(a) Customer terminates this Agreement pursuant to Clause 11.2 or cancels
the Services at a Location pursuant to Clause 9.2 or 10.2;
(b) Customer may substitute any Location with a new Location provided
Scitor ITS is able to provide Service at the new Location. Scitor ITS
shall be entitled to charge Customer for connection and project
management for the new Location at prices agreed by the Parties;
(c) Customer may disconnect a Location due to force majeure. This right
may only be invoked by Customer after 30 continuous days of force
majeure;
(d) Customer may cancel the Service for convenience at the San Francisco
and Mexico City Locations within the first 90 days after the date of
acceptance of the Service and, at any other Location, within the
first 60 days after the date of acceptance of the Service.
1.4 Any cancellation of Service at a Location other than under Clauses 9.2,
10.2 or 11.2 of this Agreement shall be conditional on the Following:
1.5 Customer must give Scitor ITS at least 30 days prior written notice.
1.6 Customer shall remain responsible for any Tail Circuit charges relevant to
the cancellation Location, but Scitor ITS shall, on a best efforts basis,
mitigate such costs by terminating any rental contracts with PTTs as soon
as practically possible, following notification by Customer.
1.7 Customer shall remain responsible for the duration of the term of this
Agreement for payment of the monthly lease charges for the Equipment.
Customer may discharge this responsibility at any time by paying Scitor ITS
a lump sum equal to the depreciated value of the Equipment based on the
original price paid by Scitor ITS or its subcontractors for the Equipment
plus 15% of such original price as a fee for administration and
disconnection. On payment of the resulting sum, Scitor ITS will transfer
title in the relevant Equipment to Customer. Customer understands that
Scitor ITS depreciates the Equipment over 3 years. Scitor ITS will transfer
the Equipment to a substitute Location on payment of a reconnection charge
agreed by the Parties and in addition Scitor ITS' travel and out of pocket
expenses.
[*] CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT 3- COMMISSIONING
1. CONNECTIONS
1.1 Scitor ITS shall use all reasonable efforts to connect the Service at the
Locations as soon as possible after the date the Tail Circuits are made
available by PTTs for Customer's use and in accordance with Customer's
requirements. Scitor ITS shall have no responsibility, nor liability for
delays caused by Customer or any third party. In the event of any such
delays Scitor ITS shall use all reasonable efforts to provide the Service
as set out in this Agreement at the earliest opportunity.
1.2 Should the Customer request to delay any connection date as agreed by the
Parties after Scitor ITS has ordered any Tail Circuit or Equipment, such
request shall be agreed by Scitor ITS but any delays in connection shall
not affect Customer's obligations to reimburse scitor ITS for all Tail
Circuit and Equipment charges incurred from the date of any contract
between Scitor ITS and any PTT or other supplier. Customer also understands
that should Scitor ITS or its agents or sub-contractors carry out a visit
to a Location in order to connect the Service, and be then unable to do so
as a result of any act or omission by the Customer, Scitor ITS reserves the
right to charge Customer for such visit at its then current rates for such
time and its reasonable travel expenses.
2. COMMISSIONING/ACCEPTANCE
2.1 Commissioning shall mean that Scitor ITS or its subcontractors shall carry
out the following Commissioning Tests at each Location as appropriate from
Scitor ITS sites remote to the Locations:
TAIL CIRCUIT
------------
To run three 15 minute Bit Error Rate Tests to ensure that no moe than one
error in 10/5/ data bits occur on the Tail Circuit.
X .25 FUNCTIONALITY TESTING
---------------------------
(a) An X.25 DTE attached via Tail Circuit to a Node is able to establish
link level communications with the Node local to the Location.
(b) An X.25 DTE attached via Tail Circuit to a Note is able to place an
X.25 call to pre-designated address, transfer data and then clear the
virtual connection than has been established.
ALTERNATIVE TESTING
-------------------
Where local PTT operating conditions are such that the above commissioning
tests are not appropriate, Scitor ITS shall be entitled to carry out
alternative commissioning tests as agreed by Customer. In this event Scitor
shall provide to the Customer a description of these alternative
commissioning tests.
FINAL ATTACHMENT 3. PAGE 1 NETSTAR
ATTACHMENT 4 - NETWORK PATH AVAILABILITY / NETWORK TRANSIT TIME WARRANTIES
The following Service warranties shall apply:
NTT NPA
From To (milliseconds) (%)
- ---- -- ------------ ---
San Francisco Mexico City 375 98.81
Service warranties for additional Locations shall be as specified in
supplements.
FINAL ATTACHMENT 4, PAGE 1 NETSTAR