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Translation from German
INFO AG
AGREEMENT ON THE USE OF
DATA COMMUNICATION INSTALLATIONS OF INFO AG
Agreement number: 96922
Parts of the Agreement: Individual orders
General terms and conditions of business
Pricing and service agreement
INFO AG
Grasweg 62-66
22303 Hamburg
hereinafter referred to as the operator
and
CYBERNET
Internet-Dienstleistungen AG
Stefan-George-Ring 19
81929 Munich
hereinafter referred to as the
contracting party
are hereby concluding the following Agreement:
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Section 1 Purpose of the Agreement
1. The contracting party will be provided the service of data transportation
and related services in a service network at locations with network nodes
of the operator and its cooperation partners.
2. In order to render the service, the operator will be entitled to
temporarily store data of the contracting party in network nodes or at
locations of the contracting party, to transmit or receive them via lines
or by radio there and to analyse them for maintenance purposes. The
quantity of data traffic will be measured, and the results will be stored.
The inventory data regarding the locations connected with the network
provided by the contracting party will be processed and used for the
purpose of rendering the service agreed upon. Data traffic and locations
will be put in relation to each other and will be evaluated.
3. The network of the operator will be operated in rented lines of Deutsche
Telekom AG. Unless contrary regulations have been established in this
agreement and in the enclosed General terms and conditions of business,
the respective general terms and conditions of business and other
provisions of Deutsche Telekom AG shall apply.
4. The extent of the data transportation service depends on the arrangements
made in the Pricing and service agreement.
5. The use of the services by third parties is only permitted after prior
written consent of the operator, except for firms in which the contracting
party holds majority participation.
6. This agreement is an agreement of data processing by order pursuant to
Section 11 of the Federal Data Protection Act. The statutory provisions of
Communications Law in their respectively valid version, in particular the
law on telecommunications systems shall apply as well as the
correspondingly made regulations regarding data protection for enterprises
which render telecommunication services (Enterprises Data Protection
Regulations).
Section 2 Parts of the Agreement
Apart from this agreement itself, all individual orders, the enclosed General
terms and conditions of business and the Pricing and service agreement shall be
parts of this agreement.
Section 3 Term of the Agreement
1. This agreement starts with the provision of the first data connection on
the part of the operator for the contracting party. The duration and the
corresponding period of termination for the operator and for the
contracting party shall be:
duration period of termination
unlimited 1 month before the end of a month
12 months 3 months before the expiry of the agreement
X 36 months 12 months before the expiry of the agreement
60 months 12 months before the expiry of the agreement
2. If no due notice of termination of an agreement with definitely agreed
duration is given, the agreement will be renewed implicitly for another 12
months respectively after the expiry of the agreement.
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3. The duration of the agreement shall apply for all connections to the
network independently of the date of provision of the individual connection
to the network. The minimum duration for individual connections to the
network shall be, however, three months, in the case of equipment
especially installed for the customer (such as concentrators) six months.
4. If a definite duration of the agreement has been agreed upon, the
conditions described in the Pricing and service agreement have been
determined for the duration of the agreement.
5. Dates and time limits of service shall only be binding if the operator
expressly confirms so in writing. Time limits of service start on the third
day after the operator received the order.
6. In the case of termination, the agreement shall only expire when the
operation of the last connection to the network has been discontinued.
7. Unless regulated otherwise, the raising of charges starts on the date a
connection is provided.
8. The contracting party is engaged to make the installation of connections
and equipment in its business premises possible. If the provision of a data
connection is delayed due to reasons which are caused by the contracting
party, the operator has the right to unilaterally define the connection as
provided.
Section 4 Termination
1. The termination of individual connections to the network during the
duration of the agreement is not possible. Excluded therefrom are:
a) changes in the location of the contracting party as long as the number of
all connections to the network is not less than the number of connections
indicated in the pricing and service agreement.
b) the discontinuation of locations. In this case, 50% of the basic charges and
50% of the minimum communication charges will be deducted from the
contracting party after termination, and Deutsche Telekom AG will be
charged the cancelled costs of supply lines for the remaining duration.
The charge of the contractual penalty is cancelled if the abandoned
location is replaced by a different, additional location.
c) the operator's change to permanent connections with higher speeds.
Terminations resulting therefrom are even permissible if they result in a
change of the total number of connections indicated in the Pricing and
service agreement.
For the exceptions defined under a) to c), a period of termination of one
month before the end of a month shall be considered agreed upon.
2. The notice of termination has to be served upon the other party by
registered letter.
Section 5 Extraordinary Termination
1. The contracting party has the right of extraordinary termination if the
operator does not or cannot meet its service requirements specified in the
agreement despite an appropriate grace period. In this case, no costs are
incurred for the remaining duration.
2. The operator has the right of extraordinary termination if the contracting
party acts grossly contrarily to the terms of the agreement, in particular
if it is in default with the payment of the charges more than two months.
3. In the case of institution of composition proceedings or bankruptcy
proceedings, the other party respectively has the right of extraordinary
termination.
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Section 6 Guarantee
1. The operator guarantees that the data transportation service specified in
the individual orders as well as in the enclosed General terms and
conditions of business has the indicated properties.
The operator engages itself to take any actions required in order to
maintain the use pursuant to the agreement during the duration of the
agreement.
2. The contracting party engages itself to report any troubles with the
installations to the trouble department of the operator immediately in
writing, by telephone or by telex.
The operator does not take over any guarantee for damage that results from
delayed report. Costs which are incurred due to delayed report of the
troubles shall be borne by the contracting party.
3. The operator shall remedy any troubles with the provided installations as
well as problems with the use of the services immediately as far as is
possible under technical and business aspects.
The operator does not take over any guarantee for problems which exceed the
range of responsibilities of the operator (in particular the provision of
lines by Deutsche Telekom AG).
Unforeseeable events such as force majeure, industrial disputes,
authority actions, loss of transfer means or energy, unforeseeable
non-delivery on the part of the previous supplier as well as other
troubles on which the operator does not have any influence shall release
the operator from its obligation to render service in time as long as they
continue. Time limits of service shall be extended by the duration of the
trouble. If the trouble continues for more than four weeks, both parties
may withdraw from the agreement. As far as that goes, the contracting
party does not have any claim for damages.
If the operator fails to fulfill its obligation pursuant to paragraph 1,
1/30 of the fixed monthly charges payable by the contracting party for the
respective month for services which have a defect shall be cancelled for
every calender day on which the due service has not been rendered, to start
after a period of 24 hours after the report of the troubles in which the
defect has continuously existed. Exceeding warranty claims shall be
excluded.
4. The contracting party is engaged to reimburse the operator all
expenditures after it reported troubles unless the trouble provably comes
from the range of responsibilities of the operator. In particular
expenditures for the remedy of troubles from the field of the terminal
equipment of the contracting party or troubles which were caused due to
negligent handling on the part of its employees or third parties ordered
by it have to be reimbursed.
Section 7 Leasing of Equipment
1. The operator will, if applicable, lease one or several pieces of equipment
(modems, concentrators etc.) to the contracting party for the use of the
services of the operator. Said equipment remains the property of the
operator. The contracting party is liable for its due handling during the
time of the lease.
2. The contracting party will, at its own expenses, provide the required
premises and electric energy for the installation, operation and
maintenance of the equipment installed at the contracting party's place.
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3. If special environment requirements (climate etc.) are made for equipment,
they shall be established as enclosure of this agreement.
4. The contracting party shall ensure that the leased equipment is only used
according to its purpose and not by unauthorized persons. It shall advise
the operator of eventual theft, loss or access by third parties
immediately so that the operator can arrange for any actions required to
protect its rights as well as for blocking the services, if applicable.
The contracting party shall bear all service charges incurred up to the
discontinuation of the services.
The contracting party shall ensure that, in the case of bankruptcy of the
contracting party, the leased equipment is not included in the bankrupt's
estate.
5. The contracting party engages itself to return any equipment leased to it
to the operator after the services were discontinued.
Section 8 Reservation of Right of Modification
The operator is entitled to unilateral service modifications, for example
in order to realize technical innovations. The operator shall inform the
contracting party of modifications of that kind in time and avoid
disadvantages for the contracting party as far as is technically
possible. The contracting party shall accept necessary installation work
on the premises of the contracting party and shall not consider them a
disadvantage. The contracting party will not be charged any costs of
unilateral service modifications.
Section 9 Liability
1. The operator shall only be liable for damage of the contracting party
which the operator caused grossly negligently or intentionally, with
limitation to the higher of the following two amounts:
DM 50,000.00
or
the value of the last three invoices (not including turnover tax); if less
than three invoices have been made out, this sum shall apply.
2. As far as damage arose for the contracting party due to gross negligence
or intention, the operator shall only be liable for the direct damage.
Liability for indirect damage such as lost profits, missed savings or
damage from third party's claims is expressly excluded. The operator shall
not be liable for any damage which results from the breakdown of the
public telecommunications systems.
Section 10 Freedom from Third Party's Rights
1. The operator guarantees for the area of the Federal Republic of Germany
that the provided service network is free from third party's rights which
may affect the contracting party's use as agreed upon.
2. The contracting party shall inform the operator immediately in writing if
any claims due to the violation of property rights are put forth against
it. The operator will indemnify the contracting party against claims made
by the property right owners to the established liability limit (Section 9
Liability) and will, after prior written consent, reimburse the
contracting party eventual costs of defence. Choosing the respective
defence action is the privilege of the operator.
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3. If the use agreed upon is affected by property rights of third parties, the
operator is, to an extent which is tolerable for the contracting party,
entitled to acquire licences according to its choice and at its own
expenses or to change or exchange the service network and/or the data
transportation service.
4. The contracting party may terminate the agreement without notice if the
operator does not succeed in removing impairments, i.e. third party's
rights pursuant to the rules of paragraph 2 and 3 within four weeks after
getting informed.
Exceeding claims due to impossibility or impairment of the agreed use by
property rights of third parties shall be excluded.
Section 11 Data Protection
1. The operator engages itself to observe strict secrecy towards third parties
including other contracting parties regarding all knowledge, documents or
data which resulted from the mutual contractual relationship or may result
therefrom in future and regarding the procedure and results thereof. This
obligation will continue even after the agreement expired.
2. The operator engages itself to observe data secrecy corresponding to
Section 5 of the Federal Data Protection Act and to bind employees of the
operator to data secrecy by contract. Person-related data of the
contracting party will only be used and stored by the operator in order to
carry out the tasks established in this agreement.
3. The operator engages itself to observe the principles of due data
processing and to supervise the compliance therewith. It prepared a
security concept with the required and suitable data protection measures in
order to guarantee the provisions of data protection. In particular it took
the measures required in order to meet the requirements pursuant to the
enclosure of Section 9 of the Federal Data Protection Act. The operator
provides for the compliance with the obligation to register pursuant to
Section 32 of the Federal Data Protection Act and for the appointment of an
expert and reliable Commissioner for Data Protection pursuant to Section 36
of the Federal Data Protection Act.
4. The operator engages itself to process and use the data of the contracting
party only within this agreement and pursuant to the instructions of the
contracting party corresponding to Section 11 of the Federal Data
Protection Act. Any use for other purposes - including the operator's own
purposes - is not permitted. Instructions exceeding this agreement must be
in writing. Instructions made orally by authorized persons of the
contracting party have to be confirmed in writing immediately. If the
operator believes that an instruction of the contracting party violates the
data protection provisions, it shall point this out to the contracting
party. This obligation to point out shall not involve comprehensive legal
examination.
5. The contracting party shall remain responsible for the compliance with the
applicable data protection provisions regarding the processing of its data
transferred in the network.
6. The operator engages itself to tolerate the examination of the compliance
with data protection provisions regarding the data of the contracting party
on its premises by the Commissioner for Data Protection of the contracting
party.
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Section 12 Subcontractual Relationships
The contracting party consents to the following:
1. that the data of the contracting party may be transferred beyond Germany
via the European network of the group of the operator in particular cases.
As far as the contracting party expressly wishes for connections with
authorities beyond this network, its data are also transferred via other
networks.
2. that the operator may order the other companies within its group to carry
out network administration for the network of the operator as well as to
establish the quantities of data traffic and process them.
3. that the operator uses other subcontractors for performing its obligations
pursuant to the agreement (installation, maintenance and service), which
subcontractors shall access the data of the contracting party for above
purposes only.
4. that the operator will make data for said subcontractual relationships
accessible pursuant to Section 14 a, par. 1 of the Telecommunications
Systems Law. The operator engages other companies of the group and all
other subcontractors involved to observe the secrecy of telecommunications
pursuant to Section 10, par. 1 of the Telecommunications Systems Law as
well as to comply with the provisions of the Enterprises Data Protection
Regulations.
Section 13 Final Provisions
1. Any modifications and supplements must be in writing and signed by both
parties.
2. If any provisions of this agreement should be or become ineffective, the
effectiveness of the other provisions of the agreement shall not be
affected thereby. An appropriate regulation shall take the place of the
ineffective or unenforceable provision, which regulation comes, as far as
legally permissible, closest to what the parties to the agreement intended.
3. The law of the Federal Republic of Germany shall apply. The place of
jurisdiction shall be Hamburg.
4. The place of performance shall be the location of the network node used by
the respective contracting party.
Hamburg, 29.7.96 Munich, 11.7.96
place, date place, date
sgd.: illegible sgd.: A. Eder
INFO AG CYBERNET Internet-Dienstleistungen AG
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In my capacity as a public translator for the English language, duly
commissioned and sworn by the President of the Regional Court I of Munich, I
hereby certify that the foregoing is a true and complete English translation of
the German document submitted to me.
Munich, Federal Republic of Germany
21 August 1998
/s/ Elisabeth Groner
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Translation from German
16 July 1998
INFO AG
to the managing board
to the attention of Klaus Olaf Zehle
Grasweg 62-66
22303 Hamburg
Agreement number: 96922, Termination of the Agreement
Dear Mr. Zehle,
Pursuant to the agreement concluded between INFO AG and Cybernet
Internet-Dienstleistungen AG on 29.07.96, Agreement number 96922 (INFO AG),
Cybernet AG hereby gives due notice of termination of above agreement.
In order to be able to carry out the withdrawal from the agreement by common
consent of both parties under technical and business aspects and without
impairments for the respective customers, we are going to ask you for
corresponding meetings the next couple of days.
The Agreement of Use concluded between Cybernet Internet-Dienstleistungen AG
and INFO AG on 19.12.97 shall remain unaffected thereby. The next couple of
weeks, we are going to present you the new technical solution for the services
offered.
Yours faithfully
Cybernet
Internet-Dienstleistungen AG
the Managing Board
sgd.: A. Eder sgd.: A. Giacalone
Andreas Eder Alessandro Giacalone
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In my capacity as a public translator for the English language, duly
commissioned and sworn by the President of the Regional Court I of Munich, I
hereby certify that the foregoing is a true and complete English translation of
the German document submitted to me.
Munich, Federal Republic of Germany
21 August 1998
/s/ ELISABETH GRONER