Exhibit 4.15
15 June 2006
NETWORK OPERATIONAL AGREEMENT BETWEEN
(1) VIATEL HOLDING (BERMUDA) LIMITED AND
(2) GLOBAL VOICE GROUP LIMITED
Contents
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION .............................................................. 1
2. INTERCONNECTION ............................................................................. 5
3. ACCESS POINTS; BREAKOUT; COVENANTs .......................................................... 6
4. CORE OPERATIONAL SERVICES, POWER AND COOLING AND ADDITIONAL SERVICES ........................ 7
5. OPERATIONS COMMITTEE ........................................................................ 9
6. LIMITATION OF LIABILITY ..................................................................... 10
7. DISPUTE RESOLUTION .......................................................................... 10
8. DURATION AND TERMINATION .................................................................... 11
9. CONSEQUENCES OF TERMINATION ................................................................. 11
10. ALIENATION .................................................................................. 11
11. CONFIDENTIALITY ............................................................................. 12
12. FORCE MAJEURE ............................................................................... 13
13. NOTICES ..................................................................................... 13
14. SEVERANCE ................................................................................... 15
15. GENERAL ..................................................................................... 15
16. GOVERNING LAW AND JURISDICTION .............................................................. 17
SCHEDULE 1
Viatel Facility Access Procedures ........................................................... 18
SCHEDULE 2
Joint Interconnection and Access Procedures ................................................. 31
SCHEDULE 3
Covenants ................................................................................... 44
Schedule 4
GV Core Operational Service ................................................................. 48
Schedule 5
Viatel Core Operational Services ............................................................ 49
Schedule 6
Operations Committee ........................................................................ 51
Part I - Specific Terms of Reference ........................................................ 51
Part II - Initial Composition ............................................................... 52
THIS NETWORK OPERATIONAL AGREEMENT (this "AGREEMENT") is made the 15 day of June
2006
BETWEEN:
(1) VIATEL HOLDING (BERMUDA) LIMITED (registered in Bermuda under number
31325) whose registered office is at Cannons Court, 22 Victoria Street,
Hamilton HM 12, Bermuda ("VIATEL"); and
(2) GLOBAL VOICE GROUP LIMITED registered as a public limited liability
company in Singapore under number 199905625E whose registered
office/principal place of business is at 80 Raffles Place, #31-20 UOB
Plaza 2, Singapore 048624 ("GLOBAL VOICE").
INTRODUCTION
(A) Viatel and Global Voice have, together with VTL-TP (Bermuda) Limited,
today entered into a Master Network Lease and Sale Agreement (the "MASTER
AGREEMENT").
(B) The Master Agreement provides, amongst other things, for the grant to
Global Voice (and/or relevant Global Voice group companies) of ownership
and other interest rights in effectively one half of certain of the
pan-European network assets operated by the Viatel group of companies, and
for the grant to Viatel group companies of ownership rights in fibre pairs
in the metropolitan networks owned and operated by the Global Voice group
of companies.
(C) The parties now wish to enter into this Agreement in order to set out the
terms upon which they will together operate and interconnect their
respective networks.
NOW, THEREFORE in consideration of the mutual promises set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, it is agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (except where the context otherwise requires) the
following words shall have the following meanings:
"ACCESS PROCEDURES" means, as the context shall require, any of
the Joint Interconnection and Access
Procedure, the Viatel Facility Access
Procedure and any access procedures included
within any Licence Agreement or Site Lease
Agreement;
"ADDITIONAL OPERATIONAL means such installation, maintenance,
SERVICES" monitoring and ther services which are
additional to the Core Operational Services
and which either party may agree to provide
to the other in accordance with Clause 4.7;
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"ARBITRATION AGREEMENT" means the agreement with that title entered
into on the same date hereof by the relevant
parties, in the agreed terms;
"BUSINESS DAY" means all days excluding Saturdays and
Sundays and any day on which the London
Stock Exchange is closed for the transaction
of business;
"CORE OPERATIONAL SERVICES" means, as the context shall require, either
the GV Core Operational Services or the
Viatel Core Operational Services;
"DEED OF COVENANT" has the meaning given to it in the Master
Agreement;
"GLOBAL VOICE GROUP" means Global Voice and each subsidiary
(whether direct or indirect) of Global Voice;
"GLOBAL VOICE GROUP means the companies which are members of the
COMPANIES" Global Voice Group; and "Global Voice
Company" shall be construed accordingly;
"GOVERNMENTAL AUTHORITY" means any national, federal,state, regional,
municipal or local authority including any
regulatory body or agency deriving authority
from any of the foregoing and including any
public utilities;
"GV CHAMBERS" means all splice chambers, handholes and
other forms of enclosure now or, in the case
of the GV Network in London alone,
subsequently installed on the GV Network
that provide access to the GV Transferred
Assets;
"GV CORE means the standard services provided by
OPERATIONAL SERVICES" Global Voice with respect to the maintenance
and general operation of the GV Network, and
as the same are first referred to in Clause
4.1;
"GV FACILITY" means a telecommunications facility on the
GV Network used for the purpose of housing
telecommunications equipment, and at which
it is possible to interconnect, at a Global
Voice ODF, telecommunications networks to
any of the fibres comprised in the GV
Transferred Assets;
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"GV NETWORK" has the meaning given to it in the Master
Agreement;
"GV TRANSFERRED ASSETS" means the fibre on the GV Network in which
title (or such other equivalent of full
ownership as is allowed to be conveyed under
applicable law) is to be transferred to a
Viatel Group Company pursuant to the Master
Agreement;
"JOINT INTERCONNECTION means the procedures agreed between the
AND ACCESS PROCEDURES" parties as being applicable to any works to
interconnect telecommunication networks with
the GV Network and/or the Viatel Network
and/or to access the GV Chambers, a GV
Facility or, as the case may be, the Viatel
Chambers, and as the same are first referred
to in Clause 2.3;
"LANDOWNER" means the owner(s) or other person(s) having
rights, at any given time, in any part of
the land adjoining and/or on which the
Networks are located;
"LICENCE AGREEMENT" has the meaning given to it in the Master
Agreement;
"NETWORK" means, as the context shall require, either
the GV Network or the Viatel Network;
"ODF" means an optical distribution frame;
"OPERATING CHARGES" has the meaning given to it in the Master
Agreement;
"OPERATIONS COMMITTEE" means the committee established by the
parties pursuant to Clause 5.1;
"POINT OF INTERCONNECTION" means any physical point (being an ODF, fibre
splice or other access point) where it is
technically feasible to interconnect the
Viatel Network or, as the case may be, the
GV Network with any other telecommunications
network so as to enable data and other
traffic to pass between such networks; and
"Points of Interconnection" shall be
construed accordingly;
"SERVICE REQUEST" has the meaning given to it in Clause 4.7;
"SITE LEASE AGREEMENT" has the meaning given to it in the Master
Agreement;
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"TERM" means the term of this Agreement as provided
for in Clause 8.1;
"VIATEL CHAMBERS" means all splice chambers, handholes and
other forms of enclosure now installed on
the Viatel Network (other than Viatel Sites
or Viatel Facilities) that provide access to
the Viatel Transferred Assets;
"VIATEL CORE OPERATIONAL means the standard services provided by
SERVICES" Viatel with respect to the maintenance and
general operation of the Viatel Network, and
as the same are first referred to in Clause
4.2;
"VIATEL FACILITY" means a telecommunications facility on the
Viatel network used for the purpose of
housing telecommunications equipment, as
each such facility is identified in the
Viatel Facility Access Procedures;
"VIATEL FACILITY ACCESS means the procedures agreed between the
PROCEDURES" parties as being applicable to any access by
Global Voice to any Viatel Facility, and as
the same are first referred to in Clause
2.3;
"VIATEL GROUP" means Viatel and each subsidiary (whether
direct or indirect) of Viatel;
"VIATEL GROUP COMPANIES" means the companies which are members of
the Viatel Group; and "Viatel Group Company"
shall be construed accordingly;
"VIATEL NETWORK" has the meaning given to it in the Master
Agreement;
"VIATEL SITE" has the meaning given to it in the Master
Agreement; and
"VIATEL TRANSFERRED means such assets in which ownership and
ASSETS" other rights or interest (including title or
such other equivalent of full ownership as
is allowed to be conveyed under applicable
law) are to be transferred to Global Voice
in accordance with the Master Agreement.
1.2 In this Agreement (except where the context otherwise requires):
1.2.1 any reference to a Clause or Schedule is to the relevant Clause or
Schedule of, or to, this Agreement;
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1.2.2 the Clause headings are included for convenience only and shall not
affect the interpretation of this Agreement;
1.2.3 use of the singular includes the plural and vice versa;
1.2.4 any reference to "persons" includes individuals, firms,
partnerships, companies, corporations, associations, organisations,
foundations and trusts (in each case whether or not having separate
legal personality);
1.2.5 save in the case of Clause 3.4, a reference to "writing" or
"written" does not include e-mail;
1.2.6 the words "subsidiary" and "holding company" have the meanings given
to them by section 736 of the UK Companies Act 1985;
1.2.7 a reference to a statute or statutory provision, code or guidance
("LEGISLATION") is a reference to such legislation as the same may
from time to time be amended, redefined, extended, varied,
superseded, replaced substituted or consolidated;
1.2.8 any phrase introduced by the terms "including", "include", "in
particular" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words preceding
those terms;
1.2.9 the expression "in the agreed terms" means terms approved by the
relevant parties and initialled by them on the date hereof for the
purpose of identification; and
1.2.10 any reference in this Agreement to either party procuring any
action shall be construed as referring to that party procuring that
the relevant action be taken by its subsidiary or subsidiaries which
have the necessary rights and powers to discharge the obligation;
where so indicated in the text, such action shall be through entry
by the relevant subsidiary into an agreement or other instrument
valid and effective under the laws of the relevant jurisdiction.
1.3 The Schedules form part of this Agreement and shall have effect as if set
out in full in the body of this Agreement and any reference to this
Agreement shall include the Schedules.
2. INTERCONNECTION
2.1 Subject to Clause 2.3, Viatel shall have access to the GV Network for the
purposes of interconnecting any telecommunications network to any of the
fibres comprised in the GV Transferred Assets.
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2.2 Subject to Clauses 2.3 and 2.4, Global Voice shall have access to the
Viatel Network for the purposes of interconnecting any telecommunications
network to any of the fibres comprised in the Viatel Transferred Assets.
2.3 Each of Global Voice and Viatel agrees that in exercising its respective
rights under, as applicable, Clause 2.1 or 2.2, it shall at all times
comply with the Joint Interconnection and Access Procedures set out in
Schedule 1.
2.4 In addition to its obligations under Clause 2.3, when exercising its
rights under Clause 2.2, Global Voice shall:
2.4.1 where accessing a Viatel Site, comply with the applicable Licence
Agreement or Site Lease Agreement; and
2.4.2 where accessing a Viatel Facility, comply with the Viatel Facility
Access Procedures as set out in Schedule 2.
2.5 Unless otherwise agreed in writing or provided for under, as applicable,
the Global Voice Core Operational Services, the Viatel Core Operational
Services or any of the Access Procedures, each party shall, at its own
cost, be responsible for providing, installing, testing and making
operational all equipment on its side of each Point of Interconnection,
and in so doing shall apply the standards of a competent provider of
electronic communications services.
3. ACCESS POINTS; BREAKOUT; COVENANTS
3.1 Global Voice shall, subject to compliance with Clause 3.2, be entitled to
have access to the Viatel Network for the purpose of inspecting and (where
Viatel is in default of its maintenance obligations as provided under the
Viatel Core Operational Services) maintaining the Viatel Transferred
Assets and/or for installing new equipment or telecommunications
infrastructure in any ducts or related infrastructure that comprise part
of the Viatel Transferred Assets.
3.2 In exercising its rights under Clause 3.1, Global Voice shall:
3.2.1 where accessing a Viatel Site, comply with the applicable Licence
Agreement or Site Lease Agreement;
3.2.2 where accessing a Viatel Facility, comply with the Viatel Facility
Access Procedures; and
3.2.3 where accessing a Viatel Chamber, comply with the Joint
Interconnection and Access Procedures.
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3.3 Viatel shall, subject to compliance with the Joint Interconnection and
Access Procedures, be entitled to have access to the GV Chambers and the
GV Facilities for the purpose of inspecting and (where Global Voice is in
default of its maintenance obligations as provided under the GV Core
Operational Services) maintaining the Global Voice Transferred Assets.
3.4 Both Global Voice and Viatel shall, with the prior written approval of the
other, be entitled to breakout from any Point of Interconnection on the
Network of the other for the purpose of connecting to any other point on
their own Network and/or the network of another carrier or operator and/or
to the premises of a customer or a telehouse or similar shared co-location
facility. Such approval shall not be unreasonably delayed or conditioned
and, in any event, may only be withheld where: (i) it can be reasonably
shown that for technical reasons any such proposed breakout could
materially and adversely affect the withholding party's use and operation
of its Network; and/or (ii) the proposed breakout is prohibited by, or
contrary to, any restrictions set out in any agreement in force at the
relevant time between the withholding party and any third party; and/or
(iii) despite using reasonable endeavours, the required consent of any
Landowner or other third party cannot be obtained or can only be obtained
on terms or conditions that are materially adverse to the withholding
party. For the avoidance of doubt, any works which involve the carrying
out of any civil or fibre works in a GV Chamber or a Viatel Chamber shall
be carried out in accordance with the provisions of Section E of Schedule
2.
3.5 Each of Global Voice and Viatel covenant with the other to observe and
fulfil such covenants as are applicable to them and as are set out in
Schedule 3.
4. CORE OPERATIONAL SERVICES, POWER AND COOLING AND ADDITIONAL SERVICES
4.1 In consideration for Viatel agreeing to pay, in accordance with the terms
of the Master Agreement, its pro-rata share of the maintenance costs
associated with the GV Transferred Assets, and subject to Viatel having
paid from time to time all such charges as are then due, Global Voice
shall provide to Viatel the GV Core Operational Services. The GV Core
Operational Services shall comprise in each relevant territory the
maintenance repair and other services set out in the applicable operating
manual set out in Schedule 4.
4.2 In consideration for Global Voice agreeing to pay, in accordance with the
terms of the Master Agreement, the Operating Charges and such costs and
expenses as are referred to in Clause 9.6 of the Master Agreement, and
subject to Global Voice having paid from time to time all such Operating
Charges and costs and expenses as aforesaid as are then due, Viatel shall
provide to Global Voice the Viatel Core Operational Services as the same
are described in Schedule 5.
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4.3 In the event of any cut and/or fibre break on any of the submarine cable
crossings on the Viatel Network, Viatel shall promptly undertake, in
accordance with the provisions of the then applicable third party repair
and/or maintenance agreement, to arrange for the repair of such cut and/or
fibre break. The parties shall share equally in the direct costs
associated with any such repairs.
4.4 Subject to Clause 4.5, prior to the installation of any power-drawing
equipment by Viatel and/or by Global Voice at a Viatel Site in accordance
with the Site Lease or the Licence Agreement for such site (as the case
may be), a power audit will be carried out by the installing party at that
site to determine the balance and allocation of the then remaining power
and cooling capacity. The parties agree and acknowledge that it is their
intention that the balance of such then remaining availability and
capacity be divided equally between the parties. The precise methodology
for the carrying out of such an audit and the dividing of the resulting
balance will be discussed and agreed at the first meeting of the
Operations Committee.
4.5 It is agreed that with respect to the Viatel Sites at each of Egham,
Telehouse (London) and Halfweg (Amsterdam), the allocation of the
available power and cooling capacity shall be discussed and agreed at the
first meeting of the Operations Committee.
4.6 Prior to installation of any Global Voice Equipment in accordance with
Clause 4 of the Licence Agreement and/or the Site Lease (as the case may
be) in relation to any of the Viatel Sites at: (a) La Defense, Paris,
France; (b) 2nd floor 35 rue des Jeuneurs, Paris, France; (c) Mannheim,
Germany; and (d) Dusseldorf, Germany, Global Voice shall, notwithstanding
any other provision of any of the Transaction Documents, give to Viatel at
least 30 days' notice of its intention to do so. During such 30 day notice
period, Viatel shall remove all equipment which is, at the date of the
notice, located within the Licensed Space and/or area demised by the
relevant Site Lease (as the case may be) at the site the subject of the
notice and shall notify Global Voice when the removal exercise has been
completed at, such removal, in any event, to have been completed by the
expiry of the 30 day notice period provided however that, if any such
equipment is carrying live traffic, whether that of Viatel, a Viatel Group
Company and/or of any of its customers, Viatel shall have a further 30
days in which to complete the removal of such traffic-bearing equipment.
4.7 Either party may submit a service request ("SERVICE REQUEST") for
Additional Operational Services. The Service request shall provide such
full and comprehensive details of the service requested (including, as
applicable, full termination details (physical coordinates and termination
types) and time-periods within which it is requested that services are to
be performed) as are sufficient to enable the other party (the
"RECIPIENT") to quote appropriately for the services. Within ten (10)
Business Days of receipt of the Service Request the recipient shall notify
the other party whether it is willing to provide the requested Additional
Operational Services and, if applicable, the charges and terms and
conditions of supply of the relevant Additional Operational Services
(including payment
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terms and service level agreements). If after receipt of such notification
the requesting party wishes to proceed with such Additional Operational
Services, it shall provide written confirmation to the recipient as to its
request for such Additional Operational Services at the quoted charges and
terms and conditions of supply. If no such confirmation is received by the
recipient within ten (10) Business Days of its notification to the other,
the offer made in the notification shall lapse and be incapable of
acceptance thereafter.
4.8 In relation to its provision of, as applicable, the GV Core Operational
Services, the Viatel Core Operational Services and any Additional
Operational Services, each party will appoint a representative to deal
with any technical or other queries raised by the other. Access to such
representative will be made available on a timely basis and each party
will ensure that a response to any such query raised by the other party is
received from the representative as soon as is reasonably practicable and,
wherever reasonably possible, within one Business Day of such query being
raised. The response shall include such information and assistance as the
other party may reasonably require.
4.9 Each party shall provide and perform the Core Operational Services and any
Additional Operational Services with reasonable care and skill and in
accordance with good telecommunications industry practice.
4.10 Save as set out in this Agreement and/or in the GV Core Operational
Services and/or the Viatel Core Operational Services, it shall be the
responsibility of each party to maintain and operate their respective
equipment and infrastructures and in so doing shall apply the standards of
a competent provider of electronic communications services.
5. OPERATIONS COMMITTEE
5.1 The parties shall, as soon as is reasonably practicable after the date
hereof, establish the Operations Committee whose general purpose shall be
facilitating the operation of the Networks in accordance with the terms of
this Agreement, and, more specifically, which shall have the terms of
reference set out in Part I of Schedule 6.
5.2 Each party shall appoint two (2) representatives to attend and vote at
meetings of the Operations Committee. Such representative shall be counted
for the purpose of determining whether a quorum is present and shall have
one vote on any matter requiring a decision. Each party shall be entitled
to change that representative at any time by written notice to the other.
The initial members of the Operations Committee shall be as set out in
Part II of Schedule 6.
5.3 Meetings of the Operations Committee shall take place no fewer than once
per calendar month or at such times as may be agreed by the parties. Any
party may propose agenda items for consideration at a meeting of the
Operations Committee provided that such items are notified to the other
party at least five (5) Business Days in advance of a proposed meeting.
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5.4 A quorum for a meeting of the Operations Committee shall only be present
when at least one representative of each party is present. The Chief
Technical Officer for Viatel (or his appointed representative) shall act
as Chairman of all meetings.
5.5 All decisions at meetings of the Operations Committee shall require a
majority vote of the representatives entitled to attend and vote; the
Chairman will not have a casting vote.
5.6 The authorised representative of a party shall (unless specific
notification to the contrary is given) be authorised to make decisions on
behalf of that party on all matters connected with the Networks. All
decisions made at meetings of the Operational Committee in connection with
the Networks shall be binding on both parties.
6. LIMITATION OF LIABILITY
6.1 Nothing in this Clause 6 shall limit liability for death or personal
injury resulting from either party's negligence or for fraud.
6.2 The aggregate liability of either party in respect of any loss or damage
suffered by the other party and arising out of or in connection with this
Agreement, whether in contract, tort (including negligence) or for breach
of statutory duty or in any other way, shall not exceed one million euro
((euro)1,000,000) in any 12 month period.
6.3 A party shall not be liable, in contract, tort (including negligence) or
for breach of statutory duty or in any other way for:
6.3.1 any loss arising from or in connection with loss of revenues,
profits, contracts or business or failure to realise anticipated
savings;
6.3.2 any loss of goodwill or reputation; or
6.3.3 any indirect or consequential losses,
suffered or incurred by the other party arising out of or in connection
with any matter under this Agreement.
7. DISPUTE RESOLUTION
7.1 Any dispute between the parties which arises under this Agreement is to be
resolved in accordance with the provisions of this Clause 7. Each party
will continue to fulfil its obligations under this Agreement during the
pendency of any dispute.
7.2 A party claiming that a dispute has arisen (the "DISPUTING PARTY") will
give notice to the other party specifying the nature of the dispute and
the facts giving rise to the dispute. Within ten (10) Business Days of the
date of notice given by the Disputing Party, the
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parties' respective Chief Technical Officers will negotiate and use all
reasonable endeavours to resolve the dispute.
7.3 If the notified dispute has not been resolved after a period of not less
than twenty (20) Business Days from receipt of the notice from the
Disputing Party, then the parties' respective Chief Executive Officers
will negotiate and use all reasonable endeavours to resolve the dispute.
7.4 If the notified dispute has not been resolved after a period of not less
that thirty (30) Business Days from receipt of the notice from the
Disputing Party (or such further period as the parties agree to), then the
parties shall, but not until such time, be entitled to bring a formal
claim or other legal proceedings in respect of such dispute.
8. DURATION AND TERMINATION
This Agreement shall come into force on the date of this Agreement and
shall terminate concurrently with the termination of the Master Agreement.
9. CONSEQUENCES OF TERMINATION
The parties shall have no further obligations or rights under this
Agreement after the end of the Term, without prejudice to any obligations
or rights which have accrued to either party at the time when the Term
ends save that Clauses 6, 7, 10, 11, 13, 16 and this Clause 9, together
with those other Clauses the survival of which is necessary for the
interpretation or enforcement of this Agreement, shall continue to have
effect after the end of the Term.
10. ALIENATION
10.1 Subject to Clauses 10.2, 10.3 and 10.4, and/or as otherwise provided in
this Agreement, no party shall without the prior written consent (such
consent not to be unreasonably withheld or delayed) of the other party
assign or transfer at law, sub-license or deal in any other manner with
this Agreement or any rights under this Agreement, or sub-contract any or
all of its obligations under this Agreement or purport to do any of the
same. Any purported assignment or other dealing in breach of this Clause
shall confer no rights on the purported assignee.
10.2 Either party shall, without releasing it in any way whatsoever from any of
its obligations hereunder, be entitled to sub-contract to a third party
the performance of, as applicable, the GV Core Operational Services, the
Viatel Core Operational Services and any Additional Operational Services.
10.3 Each party agrees that the other may, with respect to any particular
jurisdiction, designate, from time to time, any, as appropriate, Viatel
Group Company or Global Voice Group Company to be the beneficiary of any
of the rights granted under Clauses 2 and 3
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as if it were a party to this Agreement. Each party agrees that it shall
procure that any such Viatel Group Company or Global Voice Group Company
shall comply with any provisions and/or obligations relating to the grant
of rights under Clauses 2 and 3 and each party additionally agrees that it
shall be liable to the other in accordance with the terms of this
Agreement for any act or omission of any such, as appropriate, Viatel
Group Company or Global Voice Group Company, where any such act or
omission may be considered to be a breach of any provision of this
Agreement.
10.4 Each party agrees that the other may assign, transfer or sub-licence any
of the rights granted to it (and/or any of such Group Companies as it may
designate pursuant to Clause 10.3) under this Agreement to any third party
provided that, as a condition of any such assignment, transfer or
sub-licence, it shall require the third party to enter into a deed of
covenant by which such third party agrees to comply with any provisions
and/or obligations relating to the grant of rights under Clauses 2 and 3
(including any applicable Access Procedures) and with undertakings in
favour of the relevant grantor of rights under this Agreement in
substantially the same terms as the covenants undertaken in favour of such
grantor by the other party hereto and as the same are set out in Schedule
3. Global Voice acknowledges that neither Viatel nor any other Viatel
Group Company shall be under any obligation to provide any service,
provided for in this Agreement, direct to any such third party unless such
third party shall have a specific contractual relationship with Viatel.
Each party further agrees that it shall be liable to the other in
accordance with the terms of this Agreement for any act or omission of any
such third party, where any such act or omission may be considered to be a
breach of this Agreement.
11. CONFIDENTIALITY
11.1 Each party undertakes that it will not at any time hereafter use, divulge
or communicate to any person, except to its professional representatives
or advisers or as may be required by law or any legal or regulatory
authority, the terms and conditions of this Agreement or any confidential
information concerning the business or affairs of the other party or of
any member of the group of companies to which the other party belongs
which may have or may in the future come to its knowledge and each of the
parties shall use its reasonable endeavours to prevent the publication or
disclosure of any confidential information concerning such matters. Any
request or direction of any legal or regulatory authority to disclose any
such confidential information shall, unless prevented by applicable law,
be notified promptly before compliance to the other party who shall be
given reasonable opportunity to resist. No party shall use any such
confidential information except for the performance of this Agreement.
11.2 The provisions of Clause 11.1 shall not apply to information which:
11.2.1 is or becomes generally available to the public otherwise than as a
direct or indirect result of disclosure by the receiving party or a
person employed or
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engaged by the receiving party contrary to their respective
obligations of confidentiality; or
11.2.2 is or was made available or becomes available to the receiving
party otherwise than pursuant to this Agreement and free of any
restrictions as to its use or disclosure
11.3 No party shall make any announcement relating to this Agreement or its
subject matter without the prior written approval of the other parties
except as required by law or by any legal or regulatory authority.
12. FORCE MAJEURE
12.1 In this Agreement, "force majeure" shall mean any cause preventing either
party from performing any or all of its obligations which arises from or
is attributable to change or imposition of any law or any governmental
order, rule, regulation or direction, or nuclear or other accident of any
kind, acts of God, war or terrorist activity, riot, civil commotion,
malicious damage, fire, flood or storm.
12.2 If either party is prevented from performance of any of its obligations
under this Agreement by force majeure, that party shall as soon as
reasonably possible and in any event within one (1) Business Day after
commencement of the force majeure serve notice in writing on the other
party specifying the nature and extent of the circumstances giving rise to
force majeure, and shall subject to service of such notice have no
liability in respect of any delay in performance or any non-performance of
any such obligation save for any payment obligation which shall continue
in full force and effect (and the time for performance shall be extended
accordingly) to the extent that the delay or non-performance is due to
force majeure.
13. NOTICES
13.1 Any notice given under this Agreement shall be in writing and shall be
served by hand delivering it or sending it by prepaid recorded or special
delivery post or prepaid international recorded airmail or fax to the
address and for the attention of the relevant party set out in Clause 13.2
(or as otherwise notified by that party hereunder). Any such notice shall
be deemed to have been received:
13.1.1 if hand delivered or sent by prepaid recorded or special delivery
post or prepaid international recorded airmail, at the time of
delivery;
13.1.2 in the case of fax, at the time of transmission.
Provided that if deemed receipt occurs before 9.00 a.m. on a Business Day
the notice shall be deemed to have been received at 9.00 a.m. on that day,
and if deemed receipt
13
occurs after 5.00 p.m. on a Business Day, or on any day which is not a
Business Day, the notice shall be deemed to have been received at 9.00
a.m. on the next Business Day.
13.2 The addresses and fax numbers of the parties for the purposes of Clause
13.1 are:
VIATEL HOLDING (BERMUDA) LIMITED
Address: c/o VTL (UK) Limited, Inbucon House, Wick
Road, Egham, Surrey TW20 0HR, England
For the attention of: Group General Counsel
Fax number: +(44) 1784 494281
With a courtesy copy to Olswang, 90 High Holborn, London WC1V 6XX - F.A.O.
Colin Long
GLOBAL VOICE GROUP LIMITED
Address: 80 Raffles Place, 31-20 VOB Plaza 2,
Singapore 048624
For the attention of: Christopher Nightingale
Fax number: + (65) 6538 4058
With a courtesy copy to Olswang, 90 High Holborn, London WC1V 6XX - F.A.O.
Michael Brader
or such other address or fax number as may be notified in writing from
time to time by the relevant party to the other parties.
13.3 In proving such service it shall be sufficient to prove that the envelope
containing such notice was addressed to the address of the relevant party
set out in Clause 13.2 (or as otherwise notified by that party hereunder)
and delivered either to that address or into the custody of the postal
authorities as a prepaid recorded or special delivery or international
recorded airmail letter, or that the notice was transmitted by fax to the
fax number of the relevant party set out in Clause 13.2 (or as otherwise
notified by that party hereunder) and that the sender holds a transmission
report indicating uninterrupted transmission to the relevant party and in
the case of notice sent by fax to dispatch of the notice by prepaid post
as provided above on the same day of such transmission (or the next day if
notice is transmitted outside post office hours).
13.4 For the avoidance of doubt, the parties agree that the provisions of this
Clause shall not apply in relation to the service of any process in any
legal action or proceedings arising
14
out of or in connection with this Agreement or the legal relationships
established by this Agreement.
13.5 For the avoidance of doubt, notice given under this Agreement shall not be
validly served if sent by email.
14. SEVERANCE
14.1 If any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
other provisions of this Agreement which shall remain in full force and
effect.
14.2 If any provision of this Agreement is so found to be invalid or
unenforceable but would be valid or enforceable if some part of the
provision were deleted, the provision in question shall apply with such
modification(s) as may be necessary to make it valid.
14.3 The parties agree, in the circumstances referred to in Clause 14.1 and if
Clause 14.2 does not apply, to attempt in good faith to substitute for any
invalid or unenforceable provision a valid or enforceable provision which
achieves to the greatest extent possible the same effect as would have
been achieved by the invalid or unenforceable provision. The obligations
of the parties under any invalid or unenforceable provision of this
Agreement shall be suspended whilst an attempt at such substitution is
made.
15. GENERAL
15.1 Nothing in this Agreement is intended to or shall operate to create a
partnership between the parties or any of them, or to authorise any party
to act as agent for any other, and no party shall have authority to act in
the name or on behalf of or otherwise to bind any other in any way or to
hold itself out in its advertising or otherwise in any manner which would
indicate or imply any such relationship with the other unless expressly
provided otherwise in this Agreement.
15.2 No modification or variation of this Agreement (or any document entered
into pursuant to or in connection with this Agreement) shall be valid
unless it is in writing and signed by or on behalf of each of the parties
to this Agreement. For the avoidance of doubt, no modification or
variation of this Agreement shall be valid if made by email.
15.3 Unless expressly so agreed, no modification or variation of this Agreement
shall constitute or be construed as a general waiver of any provisions of
this Agreement, nor shall it affect any rights, obligations or liabilities
under this Agreement which have already accrued up to the date of such
modification or waiver, and the rights and obligations of the parties
under this Agreement shall remain in full force and effect, except and
only to the extent that they are so modified or varied.
15
15.4 Except insofar as this Agreement expressly provides that a third party may
in his own right enforce a term of this Agreement, a person who is not a
party to this Agreement has no right under the Contracts (Rights of Third
parties) Act 1999 to rely upon or enforce any term of this Agreement but
this does not affect any right or remedy of a third party which exists or
is available apart from that Act.
15.5 Each party shall use all reasonable endeavours to execute or cause to be
executed all such other documents and do or cause to be done all such
further acts and things consistent with the terms of this Agreement as the
other parties may from time to time reasonably require in order to vest in
and secure to the other parties the full benefit of the assets, rights and
benefits to be transferred or granted to the other parties under this
Agreement and otherwise to give full effect to the terms of this
Agreement.
15.6 In no event will any delay, failure or omission (in whole or in part) in
enforcing, exercising or pursuing any right, power, privilege, claim or
remedy conferred by or arising under this Agreement or by law, be deemed
to be or construed as a waiver of that or any other right, power,
privilege, claim or remedy in respect of the circumstances in question, or
operate so as to bar the enforcement of that, or any other right, power,
privilege, claim or remedy, in any other instance at any time or times
subsequently.
15.7 The rights and remedies provided by this Agreement are cumulative and
(unless otherwise provided in this Agreement) do not exclude any other
rights or remedies available in law.
15.8 This Agreement, and the documents referred to in it, (together the
"Contractual Document(s)") constitute the entire agreement and
understanding of the parties relating to the subject matter of the
Contractual Documents and supersede any previous agreement or
understanding between the parties (or any of them) in relation to such
subject matter.
15.9 Each of the parties acknowledges and agrees that in entering into the
Contractual Documents, it has not relied on any statement, representation,
warranty, understanding, undertaking, promise or assurance (whether
negligently or innocently made) of any person (whether party to any
Contractual Document or not) other than as expressly set out in the
Contractual Documents. Each party irrevocably and unconditionally waives
all claims, rights and remedies which but for this Clause it might
otherwise have had in relation to any of the foregoing.
15.10 No party shall be liable in negligence or other tort for any act or
omission which (individually or in combination with any other act or
omission) constitutes a breach of this Agreement.
15.11 Nothing in the Contractual Documents shall limit or exclude any liability
for fraud.
16
16. GOVERNING LAW AND JURISDICTION
16.1 The validity, construction and performance of this Agreement (and any
claim, dispute or matter arising under or in connection with it or its
enforceability) (a "DISPUTE") shall be governed by and construed in
accordance with the laws of England. Any Dispute shall be referred to and
finally resolved by arbitration pursuant to the Arbitration Agreement.
16.2 The parties shall enter into and execute the Arbitration Agreement on the
same date as hereof.
16.3 The parties each irrevocably appoint the person specified in Clause 16.4
as its agent to receive on its behalf in England service of any
proceedings arising out of or in connection with the validity,
construction or performance of this Agreement or its enforceability. Such
service shall be deemed completed on delivery to such agent (whether or
not it is forwarded to and received by the other party). If for any reason
a party's agent ceases to be able to act as agent or no longer has an
address in England, that party shall immediately appoint a substitute
acceptable to the other party and deliver to that other party the new
agent's name, address and fax number.
16.4 The persons and their addresses and fax numbers appointed in Clause 16.3
are:
VIATEL HOLDING (BERMUDA) LIMITED
Address: Olswang, 90 High Holborn, London WC1V 6XX
For the attention of: Colin Long
Fax number: +44 (0) 20 7067 3999
GLOBAL VOICE GROUP LIMITED
Address: Memery Crystal Solicitors, 44 Southampton
Buildings, London WC2A 1AP
For the attention of: Peter Crystal
Fax number: +44 (0)20 7242 2058
17
SCHEDULE 1
VIATEL FACILITY ACCESS PROCEDURES
A GENERAL
1. Global Voice undertakes that in exercising any right of access to a Viatel
Facility, it shall comply with these Viatel Facility Access Procedures.
2. All access shall be at a relevant Viatel Facility.
3. Access shall be granted only to persons who are deemed Authorised
Contractors in accordance with these Viatel Facility Access Procedures
and/or who are under the supervision of either an Authorised Contractor or
of Viatel.
4. For the purposes of these Viatel Facility Access Procedures, the following
words shall have the following meanings:
"Authorised Contractor" means such contractors, agents,
sub-contractors, sub- licensees (in
accordance with Clause 10.4), employees and
other representatives of Global Voice as are
authorised in accordance with these Viatel
Facility Access Procedures to access any
Viatel Facility;
"Business Hours" means the hours from 9am to 5pm (local time)
on any Business Day;
"Emergency Works" means all works which are unscheduled and
which are required solely to restore
provision of service on the GV Network to
third parties and/or to make safe any
equipment or apparatus on or connected to
such Network, and for which purpose access
is required to a Viatel Facility in
accordance with the Viatel Facility Access
Procedures;
"MOP" means a method of procedure, with respect to
any proposed works, in accordance with the
pro-forma MOP set out in Appendix 1,
providing full details as to how the works
are to be carried out;
"Planned Works" means all works (whether maintenance,
installation or network alterations) which
are scheduled by Global Voice to take place
with respect to its Network assets, and for
which access is required to a Viatel
Facility in
18
accordance with these Viatel Facility Access
Procedures;
"Viatel Facility" means the following sites: [list facility
name], the details of which are set out in
Appendix 2; and
"Viatel NOC" means the Viatel Network Operation Centre.
5. All persons granted, or wishing to be granted, access to a Viatel
Facility, may be required, upon demand, to present appropriate proof of
identity (which may include photographic identification). Failure to
provide such identification may result in denial of access to a Viatel
Facility or being required to leave a Viatel Facility forthwith.
6. Notwithstanding the provisions set out in Sections B, C and D below, at
those Viatel Facilities set out in Appendix 2 where, in the column marked
"Viatel Access Controlled" the relevant entry for such Viatel Facility
states "NO", alternative access arrangements, Planned Works and Emergency
Works procedures shall apply. Viatel shall notify Global Voice as to the
alternative arrangements for each such Viatel Facility as soon as
reasonably practicable after Completion.
B ACCESS BY AUTHORISED CONTRACTORS
1. Global Voice shall submit to Viatel a list of those individuals whom it
wishes to designate as its Authorised Contractors. Global Voice shall be
entitled to increase the number of Authorised Contractors at any time by
the provision of a written proposal to Viatel, such proposal to include a
brief resume of the proposed individual's experience and skill set, and
the proposal for any such additional Authorised Contractor(s) shall be
discussed and be subject to approval by the next meeting of the Operations
Committee. Should the Operations Committee so require, Global Voice shall
procure the attendance of (or availability of) such proposed individual to
the meeting of the Operations Committee in order that an interview (either
in person or by telephone) can be carried out with the individual. Consent
to such a person being deemed an Authorised Contractor shall not be
unreasonably withheld by the Operations Committee (and the parties shall
procure that their representatives act accordingly in this regard). Viatel
may, at any time, subject to the provision of an appropriate reason
(including, but not limited to a breach of these Viatel Facility Access
Procedures by an Authorised Contractor and/or breach of any applicable
health and safety legislation), require that an Authorised Contractor be
removed from the list of Authorised Contractors and all rights of access
to the Viatel Facilities for such person shall cease from such point in
time. Global Voice shall ensure that its list of Authorised Contractors is
kept up-to-date at all times to reflect any changes in personnel,
including, in particular, so as to reflect any staff member or contractor
departure whereupon it shall notify Viatel forthwith of such departure.
19
2. Authorised Contractors (and their visitors, provided that such visitors
are accompanied by an Authorised Contractor at all times), shall be
entitled to access all Viatel Facilities on a 24 x 7 x 365 basis subject
to the following procedures (which shall apply irrespective of whether
such Authorised Contractor has been issued with a key or a fob (or other
means of access) for a particular Viatel Facility. All reasonable costs of
issue of any keys and/or fobs will be borne by Global Voice.
3. Access to the Viatel Facilities shall be granted and made available to the
Authorised Contractors in accordance with the following procedures:
- Subject as set out below, access to a Viatel Facility shall be
granted to an Authorised Contractor subject to Global Voice sending
an e-mail to Viatel's access desk at access@viatel.com. This is a
24x7x365 monitored service. At least 30 minutes prior notice of all
intended access to a Viatel Facility must be given so as to enable
Viatel to make any appropriate adjustments, in particular to its
remote monitoring systems (including the disabling of intruder
alarms (if any)) and/or, if applicable, to comply with any
obligations it may have to third parties having any right or
interest in the relevant Viatel Facility. A ticket reference will be
allocated to such access request by the Viatel access desk. In cases
where Emergency Works are to be undertaken, Viatel will use all
reasonable endeavours to accommodate the shortest notice time
possible prior to allowing access to a Viatel Facility.
- On arrival at the Viatel Facility, the Authorised Contractor will be
required to submit the allocated ticket number.
C ACCESS OTHER THAN BY AUTHORISED CONTRACTORS
All Global Voice access to the Viatel Facilities other than by the
Authorised Contractors must be made under the supervision of Viatel.
Supervised access will be made available in accordance with the following
procedures:
- Escorted access to a Viatel Facility other than as set out in
section B above will be made available subject to the provision by
Global Voice of at least 2 Business Days' prior notice. Access will
be provided at no charge subject to the following limitations:
- In relation to the United Kingdom, up to 3 escorted visits per
month on Business Days only, no more than one site visit to
occur on any one Business Day;
- In relation to France, up to 6 escorted visits per month on
Business Days only, no more than one visit to occur on any one
Business Day;
- In relation to Germany, up to 4 escorted visits per month on
Business Days only, no more than one visit to occur on any one
Business Day; and
20
- In relation to the Netherlands, up to 3 escorted visits per
month on Business Days only, no more than one visit to occur
on any one Business Day;
- In relation to Belgium, up to 3 escorted visits per month on
Business Days only, no more than one visit to occur on any one
Business Day.
For the purpose of calculating whether the above thresholds have
been reached, all escorted visits of any third party granted rights
of access to the Viatel Network pursuant to Clause 10 shall be
included within the relevant calculation.
- Any escorted visits to Viatel Facilities in excess of the above
limits will be charged at the rate of (pound)350 per Business Day
(with no more than 2 escorted different Viatel Facility visits
within the same country being carried out on any one Business Day).
- In cases where escorted access is required for the purpose of
undertaking Emergency Works, Viatel shall use reasonable endeavours
to enable the provision of access within 4 hours of its receipt of
the request for access, provided however that where such request is
made outside of Business Hours, the parties acknowledge that
travelling time (subject to a maximum of 2 hours) may be added.
Escorted access for the purpose of undertaking Emergency Works will
be chargeable at an hourly rate (to include travelling time where
outside of Business Hours subject to a maximum travelling time of 2
hours) of (pound)100 (exclusive of VAT), subject to a minimum 4 hour
charge.
D PLANNED WORKS/MOP PROCEDURE
1. Where Global Voice intends to carry out Planned Works at a Viatel
Facility, it shall give to Viatel no less than 2 Business Days' notice of
its intention to do so, such notice to include a MOP specific to the
proposed works.
2. Upon receipt of the MOP, Viatel may require, acting reasonably, that all
or any part of the Planned Works should not be carried out where it
believes that such works will constitute a breach of health and safety
legislation and/or, where any such works might breach any obligations owed
to a Landowner or adversely impact the services, equipment and/or network
of Viatel and/or of any third party. In such event, the two parties shall
use all reasonable endeavours to agree a new method of working which
accommodates and addresses the technical requirements and concerns of
both. In default of agreement, the matter will be referred for escalation
under Clause 7 of this Agreement.
3. The requirement as to the provision of a MOP set out above shall not apply
in the case of Emergency Works, provided however that as much notice as is
reasonably possible in the circumstances shall be given by Global Voice to
Viatel (which may, notwithstanding the provisions of Clause 14 be verbal
and/or e-mail notice for these purposes) to the Viatel NOC. Such notice
shall provide as much detail as to the nature of the required
21
works as is reasonably practicable in the circumstances. No emergency
works shall be undertaken without verbal approval being given by the
Viatel NOC. Viatel shall procure that the Viatel NOC shall respond as
expeditiously as possible.
4. For the avoidance of doubt any works including the interconnection of the
Viatel Network with any other telecommunications networks shall be
undertaken in accordance with the relevant provisions of the Joint
Interconnection and Access Procedures.
E VIATEL FACILITY RULES
All visitors to any Viatel Facilities must comply with the following rules
(without prejudice to any other provision of these Viatel Facility Access
Procedures or of this Agreement):
- Not to create or cause to be created works that create smoke, steam or
dust or other nuisance (such as noise, vibrations, odours and the like)
without first obtaining the written consent of Viatel;
- Not to interfere or permit the interference with or remove any fire
fighting, fire alarm, fire extinguishing or fire detection apparatus or
systems;
- Not to obstruct or permit the obstruction of fire exits or the means of
working of any fire equipment;
- Not to interfere or permit the interference with or the removal of any
building system controls or settings;
- Not to act in such a way as might invalidate the fire certificate for the
Viatel Facilities or to do any act, matter of thing which it is aware or
should reasonably be aware would constitute a breach of the Underlying
Lease or other form of occupational agreement in relation to a Viatel
Facility or of Viatel's insurance policies for such site;
- Not without prior written consent of Viatel, to interfere with, alter or
dismantle, take or permit any action to be taken which might affect the
operation of the electrical system, power or cooling supply at the Viatel
Facility;
- Not to install, impose nor permit to be installed or imposed on any part
of the floors, walls, ceilings any load or weight greater then that for
which the same was constructed or designed;
- Not to keep nor permit to be kept any material or liquid (or other
substance which could have an adverse environmental impact) of a
dangerous, corrosive, combustible, explosive, radioactive, volatile or
offensive nature which might damage the Viatel Facility or any part
thereof;
22
- Not to bring onto the Viatel Facility any propane, other gas heater of
other heating appliance or anything which uses gas or other explosive
materials as its fuel for operation;
- To use all equipment, services and facilities in accordance with their
instructions, operating guidelines and/or any reasonable instructions
issued by Viatel, in relation to the same;
- Not by any act or default to cause or permit to be caused any power supply
or electrical supply or other utilities provided to a Viatel Facility, to
be overloaded or subjected to use in excess of that for which the same was
designed, provided that any loading restrictions have been first notified
to Global Voice in writing;
- Not to display any signs or notices at the Viatel Facility other than such
signs or notices as may be required under any statue or regulations;
- Not to remove any signage or other documentation of Viatel or its
customers from the Viatel Facility;
- Not to do anything or permit to be done anything which would remove
support from or endanger any part of the Viatel Facility;
- Not to use mobile phones in the Viatel Facility;
- Not to allow food or drink to be taken into or consumed, heated or cooked
at the Viatel Facilities nor to allow smoking in any part of the Viatel
Facility;
- To forward as soon as is reasonably possible to Viatel any notices Global
Voice may receive from a competent authority and which relates to all or
part of the Viatel Facility;
- To ensure, when exiting the Viatel Facility, that all doors are shut and,
where appropriate, secured, lights switched off and window blinds closed;
- To leave the Viatel Facility immediately upon hearing the fire suppression
klaxon (continuous air horn);
- To report to Viatel any observed abnormal conditions, including any damage
and/or health and safety issues; and
- To remove all waste and rubbish generated by Global Voice at any time at
the Viatel Facility and to keep the Viatel Facility neat and tidy at all
times and to comply with any restraints and/or obligations as set out in
Viatel's insurance policy for such facility.
23
F INCREASE IN COSTS
Viatel shall have the right to increase the costs and charges set out in
this Schedule 1 on each anniversary date of this Agreement provided that
any such increase shall not be greater than the percentage increase in the
Retail Prices Index as published by the Office for National Statistics (or
such body as may replace the same) since the preceding increase or (if
none) since the date of this Agreement.
24
APPENDIX 1
Method of Procedure (MOP)
1 AIM
The aim of this document is to define the process to be used on the delivery of
new services, works or the installation or removal of equipment with respect to
Viatel operations and sites.
2 METHOD OF PROCEDURE
The Method of Procedure (MOP) consists of three main sections as follows.
3 SCOPE OF WORKS
The scope of works must contain the following information
General summary of the Customer's requirements. This to include circuit details,
presentation, hardware, power requirements and proposed location.
A breakdown of the work required in order to achieve the Customer's
requirements.
Full details of how the work is to be executed, defining who will be doing what)
where it will be done, who is responsible for doing it (or each individual
element as the case may be) and by when it must be completed.
A list of any special instructions, considerations or information that may have
an impact upon the works.
A full H&S risk assessment.
25
A full risk and mitigation assessment and plan relating to service at risk
activities
4 SITE DETAILS
Viatel POP "A end" and the "B end" particulars floor rack position, customer's
or site details, telephone numbers should be provided. Site or location address
with any relevant 3rd party contact details.
5 CONTACTS
This section must include the following information: a contact list of all
personnel who have an involvement with the work or project including their
position/appointment, name and telephone number.
26
6 EXAMPLE
Customer / Requestor A general summary of requirements.
Requirements
Start Date:
Expected Completion:
Summary:
Scope of Work Breakdown of the work required.
Implementation Full details of the how the work will be
executed, task breakdown, who will be doing
what, where it will be done, who is
responsible, programme with dates.
27
Special Instructions List of any special
instructions, considerations or information,
special tools and equipment required,
specification to be adhered to.
Health and Safety Full health and safety risk assessment to be
provided.
Risk:
Severity: Low Medium High
Mitigation:
Service at risk activity Risk and mitigation plan relating to service
at risk activities.
Site Details Locations where Work is to be implemented
with any required local information and
contacts where applicable.
28
Contacts List List any and all relevant personnel,
telephone, e-mail and postal details
including3rd party and contractors if
applicable.
Name:
Company:
Position and Role for this request:
Tel:
Fax:
e-mail:
Post:
29
APPENDIX 2
VIATEL FACILITIES
Basis
upon
which the
allocation Viatel
Viatel to Network
Rack(s) in Global Schematic Viatel ODF Viatel AC
Carrier Rack Space Drawing Current Access Access DC UPS
Country Name Hotel Location Share PEN Number Use point Controlled Generator Power Power
- -------- ------------ ---------- -------- ---------- --------- --------- -------- ------ ---------- --------- ----- -----
ODF
Access
Only no ODF
space or VIATEL- Location
Belgium LEERS-NORD Yes tbc power 1/2 092785 only Yes NO na na na
ODF
FRANKFURT Access
19 Only no
WEISSMULLE space or VIATEL-
Germany RSTRASSE Yes tbc power FRANKFURT 092786 POP Yes NO Yes Yes No
ODF
LONDON 7 Access
HARBOUR Only no
EXCHANGE Lev8, space or VIATEL-
UK (REDBUS) Yes 61.38 power LONDON 092743 POP Yes NO Yes No Yes
ODF
LONDON 8 Access
HARBOUR Only no
EXCHANGE space or VIATEL-
UK (TELECITY 2) Yes 1Z-18 power LONDON 092744 POP Yes NO Yes No Yes
ODF
LONDON Access
BONNINGTO Only no
N HOUSE 1H7,8,9, space or VIATEL-
UK (TELECITY 1) Yes 10 power LONDON 092745 POP Yes NO Yes No Yes
ODF
Access
LONDON Only no
BRICK LANE space or VIATEL-
UK (INTERXION) Yes 205E 3,5 power LONDON 092746 POP Yes NO Yes No Yes
ODF
Access
LONDON Only no
GLOBAL space or VIATEL-
UK SWITCH Yes tbc power LONDON 092747 POP Yes NO Yes No Yes
ODF
LONDON Access
HOSTING Only no
CENTRE floor 3 space or VIATEL-
UK (PSINET) Yes C1P1 power LONDON 092748 POP Yes NO Yes No Yes
ODF
Access
LONDON Only no
TELEHOUSE Bandx space or VIATEL-
UK EAST Yes 22-24 power LONDON 092749 POP Yes NO Yes No Yes
30
SCHEDULE 2
JOINT INTERCONNECTION AND ACCESS PROCEDURES
A GENERAL
1. Each party undertakes that in exercising any right to interconnect their
respective Networks at a Point of Interconnection, and/or to access, as
applicable, the Viatel Chambers, or the GV Chambers for the purpose of
inspecting, maintaining and/or installing or making alterations to their
respective Networks (as such rights of access are detailed in the
Agreement), it shall comply with these Joint Interconnection and Access
Procedures.
2. For the purposes of these Joint Interconnection and Access Procedures, the
following words shall have the following meanings:
"Allocated Fibres" shall mean those fibres allocated to Global
Voice comprised within the German Assets,
the French Assets and the NBUK Assets as the
same are detailed in Schedules II, III and
IV of the Master Agreement or, as
applicable, those fibres allocated to Viatel
and comprised within the GV Transferred
Assets as the same are defined to in the
Master Agreement;
"Business Hours" means the hours from 9am to 5pm (local time)
on any Business Day;
"Chamber" means as the context requires, either a GV
Chamber or a Viatel Chamber (as such terms
are described in this Agreement); and
"Chambers" shall be construed accordingly;
"Emergency Interconnection means all interconnection works which are
Works" unscheduled and which are required solely to
restore the provision of service; and
"Interconnection MOP" means a method of procedure with respect to
any proposed interconnection works, in
accordance with the pro-forma MOP set out in
Appendix 1, providing full details as to how
the works are to be carried out.
31
3. Notwithstanding the provisions set out in these Joint Interconnection and
Access Procedures, where the Viatel Transferred Assets comprise leased or
licensed assets, namely where the asset is used and enjoyed by Viatel
and/or its Affiliates subject to a lease, licence or other agreement with
a third party (including for the avoidance of doubt any owner of the
public domain), alternative interconnection and access arrangements shall
apply. To the extent that it is able, Viatel shall notify Global Voice of
the alternative arrangements as soon as reasonably possible after
Completion. Viatel can make no commitment that any interconnection or
access arrangements will be possible given the nature of such assets;
Viatel will, however, take such steps as it is reasonably able to
facilitate such interconnection or access arrangements, it being agreed
however that such obligation will not extend to requiring Viatel, to make
any payment or otherwise incur any liability to any third party in respect
thereof.
B. ACCESS
1. All access by Global Voice to any Viatel Site or Viatel Facility shall be
subject to, respectively, the Site Lease Agreement or Licence Agreement
relevant to the Viatel Site or, in the case of a Viatel Facility, the
Viatel Facility Access Procedures.
2. Access by either party to any Chamber on the Network of the other party
and/or, in the case of Viatel, to any GV Facility, shall be subject to the
provisions of these Joint Interconnection and Access Procedures.
3. Each party reserves the right to be present and supervise any access by
the other to any Chamber on its Network. Any such supervision shall not
relieve the party being granted access to a Chamber from its obligation to
comply in full with these Joint Interconnection and Access Procedures.
C. INTERCONNECTION WORKS - GENERAL
1. Each party shall take all necessary precautions (including any required by
applicable health and safety legislation) to protect the other party's
property (and/or that of a third party) from any physical damage during
the course of any interconnection works.
2. In the event of any damage being caused to the other party's property
(and/or that of a third party) in carrying out any such works as
contemplated by these Joint Interconnection and Access Procedures, whether
to fibre, duct, equipment or to other items, the working party shall make
good, at its own cost, any such damage so caused.
D FIBRE INTERCONNECTION AT AN ODF
1. Other than in the case of Emergency Works, no less than 2 Business Days'
notice shall be given of any proposed interconnection at any ODF on the
Network of the other party, such notice to be accompanied by an
Interconnection MOP specific to the proposed
32
works. Upon receipt of such notice, the Interconnection MOP procedure set
out in Section F shall apply.
2. The requirement set out in Section D(1) shall not apply in the case of
Emergency Works, provided however that as much notice as is reasonably
possible in the circumstances shall be given (which notice may,
notwithstanding the provisions of Clause 14 be verbal and/or email notice
for these purposes) to the network operations centre ("NOC") of the other
party. Such notice shall provide as much detail as to the nature of the
required works as is reasonably practicable in the circumstances. No
Emergency Works shall be undertaken without the verbal approval being
given by the relevant NOC. Each party shall procure that their respective
NOCs respond as expeditiously as possible in the circumstances.
3. The party carrying out the interconnection works shall be entitled to make
its Point of Interconnection at the (customer facing) ports for its
Allocated Fibres (or any part thereof) on the opposite side of the ODF to
that of the other party.
4. The party carrying out the interconnection works shall be responsible for
the cost of any internal patch cabling (including the provision of
suitable connectors) required to provide an interconnect with the other
party's ODF, including, where the fibres have not been connected by the
other party to its side of the ODF, the costs of any required pigtails or
other patch cords required to do so. For these purposes it is agreed that
the party carrying out the interconnection works shall, subject to its
compliance with the other provisions of this Agreement (including those of
any applicable Access Procedures), and subject to any requisite consent
being obtained from any Landowner, have the right to install in the
occupied space of the other party, such diverse patch cabling as may be
reasonably required to connect the ODF to their own Network. Each party
agrees to use its reasonable endeavours to obtain and requisite Landowner
consents as aforesaid, all such costs related thereto being borne by the
party carrying out the interconnection works.
5. Connectors shall all be of the type SC-UPC other than where, in the
applicable fibre specification, that specification states otherwise.
6. In accessing the ODF, whether for the purposes of implementing a Point of
Interconnection or otherwise, the party carrying out the interconnection
works shall comply with the applicable access procedures of the other for
the site in which such ODF is located, such access procedures in any event
to be reasonable and of a nature standard within the telecommunications
industry. In the case of a Viatel ODF, such access shall be made, in the
case of a Viatel Site, in accordance with the Viatel Site Access
Procedures and in the case of a Viatel Facility, in accordance with the
Viatel Facility Access Procedures.
33
E FIBRE INTERCONNECT/CIVIL WORKS AT A CHAMBER
1. Subject to Section E(2) below, each party shall be responsible for
performing (at its own cost) all excavation, digging and construction
works (together "Civil Works"), as well as all cabling, splicing and/or
testing works (together "Fibre Works") required in order to implement a
Point of Interconnection between its own Network or the network of a third
party and that of the other party. Any such works shall, without prejudice
to and notwithstanding the terms and conditions set out in this Schedule
2, be carried out in accordance with standard industry practice for such
works and with due regard to the nature of the particular Chamber in
question and in accordance with the practice of a competent provider of
such services.
2. All Civil Works and Fibre Works to be carried out within a Chamber shall
be carried out either by and/or under the direct supervision of the owner
of such Chamber, any reasonable costs associated with such works and/or
supervision which are incurred by that owner being reimbursed to it in
accordance with the provisions of Section H.
3. Subject to Sections E(5) and F below, the party proposing to carry out any
such Civil Works at or within the Chamber of the other shall provide to
the other an Interconnection MOP in all cases where such works: (i)
include any duct and/or fibre interconnection works (including any related
cabling, splicing and/or testing works) at a Chamber; or (ii) will
necessitate the opening of any Chamber for the purpose of installing new
fibre optic cable. Upon receipt of such Interconnection MOP, the
Interconnection MOP procedure set out in Section F shall apply.
4. The Interconnection MOP having been agreed by the parties in accordance
with Section F, at least 15 Business Days' notice (or such a shorter
period as is agreed by the parties) must be given of any intention to
understate the relevant Civil Works.
5. The notice requirements set out above shall not apply in the case of
Emergency Works provided however that as much notice as is reasonably
practicable in the circumstances shall be given to the other party, (which
notice may, notwithstanding the provisions of Clause 14 be verbal and/or
e-mail notice for these purposes) to the network operations centre ("NOC")
of the other party. Such notice shall provide as much detail as to the
nature of the required works as is reasonably practicable in the
circumstances. No Emergency Works shall be undertaken without the verbal
approval being given by the relevant NOC. Each party shall procure that
their respective NOCs respond as expeditiously as possible in the
circumstances. Approval shall only be given in relation to access to the
relevant Chamber: access to the splice closures (and any related work
thereon) within such Chamber being only available to the owner of such
Chamber.
34
F INTERCONNECTION MOP PROCEDURE
1. Upon receipt of the Interconnection MOP, the receiving party may require,
acting reasonably, that all or any part of the planned works should not be
carried out where it believes that such works will constitute a breach of
health and safety legislation and/or where any such works might breach any
obligations owed to a Landowner or adversely impact the services,
equipment and/or network of itself and/or of any third party. In such an
event, the two parties shall use all reasonable endeavours to agree a new
method of working which accommodates and addresses the technical
requirements and concerns of both. In default of an agreement as to a
revised method of working, the matter will be referred for escalation
under Clause 7 of this Agreement.
2. In the event that the party on whom the Interconnection MOP has been
served has not within: (i) 2 Business Days, in the case of fibre
interconnection at an ODF; or (ii) 5 Business Days, in the case of Civil
Works at a Chamber, notified the other party that it will require changes
to the Interconnection MOP, then the Interconnection MOP shall be deemed
approved.
3. Approval of the MOP, whether deemed or otherwise, shall not in any way
operate so as to limit the submitting party's liability under the terms
and conditions of this Agreement and it shall be the submitting party's
responsibility to comply fully with such terms and conditions at all
times.
G COMPLETION PROCEDURE
Following completion of any works as contemplated by this Schedule 2, the
party carrying out any such works shall provide, at its own cost, the
other with appropriate documentation sufficient to allow that other to
comply, on a timely basis, with any obligations it may have (if any) under
the New Roads and Street Works Act 1991 (or any similar or analogous
legislation in any other country in which such works may be carried out)
in relation to the works carried out upon or in relation to its Network.
H COSTS
Where the provisions of this Schedule 2 state that costs of one party are
to be borne by the other party, reference to costs shall be deemed to mean
the reasonable costs incurred (the party having incurred such costs having
used reasonably endeavours to minimise the same) plus an administrative
charge of 15% (exclusive of VAT).
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APPENDIX 1
[VIATEL LOGO]
METHOD OF PROCEDURE
PROJECT NAME: Sheet: 1 of 5
Amendment: Date of Issue:
CONTRACT
Client VTL (UK) Ltd
Planning
Contract Manager
Project Manager
Safety Advisor
Start Date:
Duration:
DESCRIPTION OF WORK TO BE UNDERTAKEN:
HAZARDS: See Health & Safety Risk Assessment Form Attached
Trip
Fire Routing
Safe Access / Ingress
Flammable substances
Hazardous substances
Manual Handling
Working from ladders
CIRCULATION:
Health & Safety File
37
[COMPANY LOGO]
PROJECT NAME Sheet: 2 of 5
Amendment: Date of issue:
Method Statement
EXAMPLE:
CIRCULATION:
Health & Safety File
38
[COMPANY LOGO]
Project Name: Sheet: 3 of 5
Amendment: Date of issue:
Method Statement
Labour:
The following labour resources will be allocated to the project:
Plant:
The following plant resources will be allocated to the project:
39
The contents of this Method Of Procedure have been made known to all employees
and others who may be affected by the activity.
Originator: ________________________________________________________
Signature: ________________________________________________________
Date: ________________________________________________________
CIRCULATION:
Health & Safety File
40
[COMPANY LOGO]
Project Name: Sheet: 4 of 5
Amendment: Date of issue:
HEALTH & SAFETY
RISK ASSESSMENT FORM
Note; the purpose of this section is to identify any potential risks to persons
and property in respect of this installation. To take the appropriate
preventative measures and ensure all relevant parties are aware of the risks and
required precautions before the installation commences. This risk assessment
must be communicated to everyone concerned by the works (including but not
limited to the Client, Customer, employees & sub-contractors) and be available
at all times on site.
HAZARD TYPE RISK LEVEL COMMENTS/NOTES/ACTIONS.
(Y/N) (L/M/H)
- -------------------------------- ---- ------ ------------------------
Trip Hazards
Electrical Discharge
Soldering Fumes
Fire routing
Slip Hazards
Falling Objects
Safe access & ingress
Room Illumination
Release of fire suppression
Fire hazards
Overhead Danger
Exposure to rodents
41
HAZARD TYPE RISK LEVEL COMMENTS/NOTES/ACTIONS.
(Y/N) (L/M/H)
- -------------------------------- ---- ------ ------------------------
Exposure to hazardous substances
Hazards to other
operatives/personnel on site
Exposure to asbestos
Manual handling
Working with batteries
Roadside working
Risk of falling
Noise from site services
Working from Ladders
CIRCULATION:
Health & Safety File
42
[COMPANY LOGO]
Project Name: Sheet: 5 of 5
Amendment: Date of issue:
HEALTH & SAFETY
RISK ASSESSMENT FORM
Originator: ________________________________________________________
Signature: ________________________________________________________
Date: ________________________________________________________
CIRCULATION:
Health & Safety File
43
SCHEDULE 3
COVENANTS
PART I - GLOBAL VOICE COVENANTS
Global Voice covenants with Viatel throughout the Term, both for itself and for
any Global Voice Group Company, as follows:
1. To keep the Viatel Transferred Assets and all other equipment and/or
infrastructure in the ownership, possession or control of any Global Voice
Group Company and which is situated on any Landowner's land or property
(all of which shall, for the purposes of this Schedule 3 be together
referred to as the "GLOBAL VOICE INFRASTRUCTURE") in good and substantial
repair and condition to the extent only that (a) the repair and/or
condition of the Viatel Transferred Assets has a direct impact upon the
Viatel Network; and/or (b) the Viatel Transferred Assets are themselves
leased by Viatel (or a Viatel Group Company), it being agreed that the
provisions of this paragraph 1 shall not apply to Global Voice to the
extent the repair and condition of the Global Voice Infrastructure is the
responsibility of Viatel under the Viatel Core Operational Services and/or
any Additional Operational Services.
2. In the course of carrying out any works on any Landowner's land or
property in respect of the installation, alteration or maintenance of any
of the Global Voice Infrastructure, to use all reasonable endeavours to
avoid any physical damage to any part of the Landowner's land or property
and, in the event that any damage is so caused, Global Voice shall as soon
as is practicable after such damage has occurred carry out or cause to be
carried out at its own expense any such repair works as are necessary so
that the Landowner's land or property so damaged is restored to the
condition it was in prior to such damage occurring.
3. Not to do anything which is or may become a nuisance or annoyance to
Viatel, any Landowner or any owner or occupier of neighbouring or
adjoining property, or which may cause damage to the land or property of
Viatel and/or any Landowner or to any neighbouring or adjoining property
including damage attributable to the neglect, default or carelessness of
Global Voice, or of any Global Voice Group Company and/or their respective
employees, agents, visitors, sub-tenants, contractors or licensees.
4. To observe and comply with the provisions and requirements of all
legislation (including, but without limitation, any and all health and
safety legislation) whether public or local directly affecting the Global
Voice Infrastructure and/or the Viatel Network or the use of the same,
including without limitation planning and telecommunications legislation,
and not to do or omit anything affecting the land or property of any
Landowner which is in
44
breach of such legislation but to do and provide everything required to be
done or required by such legislation and to indemnity Viatel against all
proceedings, penalties, costs or claims in respect of any acts or
omissions in breach of such legislation.
5. That if Global Voice receives notice of any order or proposal under any
legislation, to give notice to Viatel immediately and, insofar it relates
to the Global Voice Infrastructure, if so reasonably required by Viatel,
to make or join with Viatel in making such objections or representations
in respect of any order or proposal as Viatel may reasonably require and
to comply at its own cost with any notice or order relating to Viatel
under any such legislation.
6. That if Viatel is required by any Governmental Authority, Landowner or
other person having the authority so to require, to relocate any segment
of the Viatel Network in which is located any Global Voice Infrastructure,
to give Viatel all such assistance as Viatel may reasonably require in
connection with such relocation works.
7. Not to permit or suffer to be done in or upon the Global Voice
Infrastructure anything which in the reasonable opinion of Viatel and/or
any Landowner may or might become a danger or nuisance to Viatel and/or
any Landowner, their licensees, tenants or the occupiers of any adjoining
or neighbouring property or to the general public and, at its own expense,
it shall take all reasonable precautions as may be necessary for the
avoidance thereof.
8. Not to do or permit to be done during the carrying out of any
interconnection or other works in connection with the Global Voice
Infrastructure anything which may cause any interference with or obstruct
or which may cause delay to traffic on any road forming part of any land
or property of any Landowner or any injury or damage to any other property
of the Landowner.
PART II - VIATEL COVENANTS
Viatel covenants with Global Voice throughout the Term, both for itself and for
any Viatel Group Company, as follows:
9. To keep the Global Voice Transferred Assets and all other equipment and/or
infrastructure in the ownership, possession or control of any Viatel Group
Company and which is situated on any Landowner's land or property (all of
which shall, for the purposes of this Schedule 3 be together referred to
as the "Viatel Infrastructure") in good and substantial repair and
condition to the extent only that (a) the repair and/or condition of the
Global Voice Transferred Assets has a direct impact upon the Global Voice
Network; and/or (b) the Global Voice Transferred Assets are themselves
leased by Global Voice (or a Global Voice Group Company), it being agreed
that the provisions of this paragraph 1 shall not apply to Viatel to the
extent that the repair and condition of the Viatel Infrastructure is the
responsibility of Global Voice under the GV Core Operational
45
Services and/or any Additional Operational Services. Global Voice is
responsible for maintaining any of the Viatel Infrastructure.
10. In the course of carrying out any works on any Landowner's land or
property in respect of the installation, alteration or maintenance of any
of the Viatel Infrastructure, to use all reasonable endeavours to avoid
any physical damage to any part of the Landowner's land or property and,
in the event that any damage is so caused, Viatel shall as soon as is
practicable after such damage has occurred carry out or cause to be
carried out at its own expense any such repair works as are necessary so
that the Landowner's land or property so damaged is restored to the
condition it was in prior to such damage occurring.
11. Not to do anything which is or may become a nuisance or annoyance to
Global Voice, any Landowner or any owner or occupier of neighbouring or
adjoining property, or which may cause damage to the land or property of
Global Voice and/or any Landowner or to any neighbouring or adjoining
property including damage attributable to the neglect, default or
carelessness of Viatel, or of any Viatel Group Company and/or their
respective employees, agents, visitors, sub-tenants, contractors or
licensees.
12. To observe and comply with the provisions and requirements of all
legislation (including, but without limitation, any and all health and
safety legislation) whether public or local directly affecting the Viatel
Infrastructure and/or the Global Voice Network or the use of the same,
including without limitation planning and telecommunications legislation,
and not to do or omit anything affecting the land or property of any
Landowner which is in breach of such legislation but to do and provide
everything required to be done or required by such legislation and to
indemnify Global Voice against all proceedings, penalties, costs or claims
in respect of any acts or omissions in breach of such legislation.
13. That if Viatel receives notice of any order or proposal under any
legislation, to give notice to Global Voice immediately and, insofar it
relates to the Viatel Infrastructure, if so reasonably required by Global
Voice, to make or join with Global Voice in making such objections or
representations in respect of any order or proposal as Global Voice may
reasonably require and to comply at its own cost with any notice or order
relating to Global Voice under any such legislation.
14. That if Global Voice is required by any Governmental Authority, Landowner
or other person having the authority so to require, to relocate any
segment of the Global Voice Network in which is located any Viatel
Infrastructure, to give Global Voice all such assistance as Global Voice
may reasonably require in connection with such relocation works.
15. Not to permit or suffer to be done in or upon the Viatel Infrastructure
anything which in the reasonable opinion of Global Voice and/or any
Landowner may or might become a
46
danger or nuisance to Global Voice and/or any Landowner, their licensees,
tenants or the occupiers of any adjoining or neighbouring property or to
the general public and, at its own expense, it shall take all reasonable
precautions as may be necessary for the avoidance thereof.
16. Not to do or permit to be done during the carrying out of any
interconnection or other works in connection with the Viatel
Infrastructure anything which may cause any interference with or obstruct
or which may cause delay to traffic on any road forming part of any land
or property of any Landowner or any injury or damage to any other property
of the Landowner
47
SCHEDULE 4
GV CORE OPERATIONAL SERVICE
48
SCHEDULE 5
VIATEL CORE OPERATIONAL SERVICES
The Viatel Core Operational Services will comprise the provision of rights of
access to the Viatel Network in accordance with Clauses 2 and 3 of this
Agreement and the provision of network maintenance services reflecting these
services provided to it under the following agreements:
(a) For the United Kingdom, those services which are provided in accordance
with the Fibre and Duct Maintenance Agreement between NTL Group Limited
and VTL (UK) Limited dated 9th July 2004 and those services which are
provided in accordance with the Agreement for the Maintenance of
Facilities and Infrastructure between Ringway Electrical Southern Limited
and VTL (UK) Limited dated 23rd June 2004 as the same is in rollover
pending finalisation of a new agreement;
(b) For Germany, those services which are provided in accordance with the
Agreement on the Maintenance and Administration of a Fibre Optic Route
between Viatel GmbH and Gasline Telekommunicationsnetsgesellschaft
deutscher GmbH and those services which are provided in accordance with
the Agreement on the Provision of System Equipment Services between
Ruhrgas Aktiengesellschaft and VTL Telecom GmbH dated 6th January 2003 and
the First Modification of the Agreement on the Provision of System
Equipment Services between Ruhrgas Aktiengesellschaft and VTL Telecom GmbH
effective 1st May 2003;
(c) For France, those services which are provided in accordance with the
Maintenance Agreement between Louis Dreyfus Communications S.A. and Viatel
Operations S.A. dated 3rd August 2000, the Amendment to the Maintenance
Agreement between Louis Dreyfus Communications S.A. and Viatel Operations
S.A. dated 19th March 2001, the Second Amendment to the Maintenance
Agreement between Louis Dreyfus Communications S.A. and Viatel Operations
S.A. dated 3rd July 2002, the Third Amendment to the Maintenance Agreement
between Louis Dreyfus Communications S.A. and Viatel Operations S.A. dated
12th June 2003, the Fourth Amendment to the Maintenance Agreement between
Neuf Telecom and Viatel Operations S.A. dated 18th March 2004, the Fifth
Amendment to the Maintenance Agreement between Neuf Telecom and Viatel
Operations S.A. dated 1st April 2005 and the Sixth Amendment to the
Maintenance Agreement between Neuf Telecom and Viatel Operations S.A.
signed by Viatel on 17th March 2006;
(d) For Belgium, those services which are provided in accordance with the
offer for Maintenance Services in Holland and Belgium between Volker
Stevin Netwerk Services b.v. and VTL (UK) Limited dated 4th July 2003 as
the same is in rollover pending finalisation of a new agreement;
49
(e) For the Netherlands, those services which are provided in accordance with
the offer for Maintenance Services in Holland and Belgium between Volker
Stevin Netwerk Services b.v. and VTL (UK) Limited dated 4th July 2003 as
the same is in rollover pending finalisation of a new agreement; and
(f) For the Channel submarine cables, those services which are provided in
accordance with the Agreement for the Provision of Repair and Maintenance
Services to the Circe North and Circe South Cable Systems between Global
Marine Systems Limited and VTL (UK) Limited dated 20th July 2005.
50
SCHEDULE 6
OPERATIONS COMMITTEE
PART I - SPECIFIC TERMS OF REFERENCE
- - Agreement of a form of Fibre Reallocation for the purpose of the Network
Lease and Option and Transfer Agreement (as all such terms are defined in
the Master Agreement)
- - Review of performance of third party contractors/maintenance providers
- - Selection of third party contractors/maintenance providers
- - Review of operating costs/cost-saving opportunities (including, where
appropriate, consideration of closing Viatel Sites)
- - Operational testing/monitoring
- - Plans to expand operational service capacity to support expansion and
extension of Viatel/Global Voice service; to include timescales
- - Plans to install additional infrastructure including any sub-ducts in
existing ducts
- - Plans to maximise use of shared facilities and/or any related
environmental or utility supply
- - Allocation of available power and cooling capacity as between the parties
at each of the Viatel Sites at Egham (UK), Telehouse (UK) and Halfweg
(Holland).
- - Interconnection issues as between Global Voice/Viatel
- - Maintenance of each party's facilities and infrastructure
- - Performance of Authorised Contractors
- - Approval of additional Authorised Contractors
- - Requests by Viatel for access to GV Off-Net Buildings
- - Requests by Viatel for additional fibre pairs or operational space on GV
Network
- - Operational issues relating to transfer to Viatel of additional fibre
pairs on GV Network
51
PART II - INITIAL COMPOSITION
Steve Best CTO, Viatel
Neil Cubitt Head of Property and Facilities, Viatel
Dary McGovern CTO ,Global Voice
Gerry Murray Director of Operations, Global Voice
52
SIGNED by )
a duly authorised signatory of ) /s/ Lucy Woods
VIATEL HOLDING (BERMUDA) LIMITED )
SIGNED by )
a duly authorised signatory of ) /s/ Chris Nightingale
GLOBAL VOICE GROUP LIMITED )
53