RBI Co-location Agreement

Transcription

1 RBI Co-location Agreement Vodafone New Zealand Limited Two Degrees Mobile Limited VFNZ RBI Co-location Agreement (2degrees)

2 CONTENTS 1 DEFINITIONS AND CONSTRUCTION Defined terms Construction Order of Priority 6 2 TERM 6 3 RBI SITE DESIGN & BUILD PROCESS Design & Build Process Non-Cellular Access Seekers 6 4 PROVISION OF RBI CO-LOCATION SERVICE Access Provider to provide RBI Co-location Service Non-Cellular Access Seekers 7 5 CHARGES AND PAYMENT Design & Build Process Charges RBI Co-location Service Charges Parties to comply with STD payment provisions 8 6 CONFIDENTIAL INFORMATION Parties to comply with STD 8 7 INTELLECTUAL PROPERTY Ownership Parties to comply with STD Jointly Developed Intellectual Property 9 8 RBI ACCESS SEEKER S LIABILITY RBI Access Seeker s liability Costs of recovering Charges 9 9 ACCESS PROVIDER S LIABILITY Limitation of Access Provider s liability 9 10 INSURANCE RBI Access Seeker s Insurance Obligations Access Provider s Insurance Obligations TERMINATION Rights of termination Termination of MED Agreement by MED Surviving rights and obligations FORCE MAJEURE Parties to comply with STD DISPUTE RESOLUTION Parties to comply with STD 11 VFNZ RBI Co-location Agreement (2degrees) 2

3 14 NOTICES Parties to comply with STD Formal Notices GENERAL Mutual warranties Further assurances No reliance Entire agreement Costs Legal nature of relationship Privity No waiver Consistency of agreements Amendments Invalidity Law and jurisdiction Counterparts 13 SCHEDULE 1 - GLOSSARY 15 SCHEDULE 2 - RBI SITE DESIGN & BUILD TERMS 20 SCHEDULE 3 - RBI CO-LOCATION PRICING: 27 SCHEDULE 4 - ADDITIONAL REQUIREMENTS 36 VFNZ RBI Co-location Agreement (2degrees) 3

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5 Seeker in the relevant provisions of the STD will be deemed to be a reference to the RBI Access Seeker. Clauses, Schedules and Appendices: except where this Agreement expressly provides otherwise, a reference to a clause or a schedule or an appendix is to a clause or schedule or appendix of this Agreement; Currency: a reference to any monetary amount is to New Zealand currency; Headings: headings appear as a matter of convenience and do not affect the construction of this Agreement; Inclusions: a reference to includes is to includes without limitation, and references to included and including shall be construed accordingly; No Contra Proferentem Construction: the rule of construction known as the contra proferentem rule does not apply to this Agreement; Parties: a reference to a party to this Agreement or any other document includes that party s personal representatives, successors and permitted assigns; Person: a reference to a person includes a corporation sole and also a body of persons, whether corporate or unincorporate; Related Terms: where a word or expression is defined in this Agreement, other parts of speech and grammatical forms of that word or expression have corresponding meanings; Schedules and Appendices: Agreement; the schedules and appendices form part of this Sections: except where this Agreement expressly provides otherwise, a reference in a schedule or appendix to a section is a reference to a section in that schedule or appendix; Singular, Plural and Gender: the singular includes the plural and vice versa, and words importing one gender include the other genders; Statutes and Regulations: a reference to an enactment or any regulations is a reference to that enactment or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations; and Writing: a reference to written or in writing includes all modes of presenting or reproducing words, figures and symbols in a tangible and permanently visible form. VFNZ RBI Co-location Agreement (2degrees) 5

6 1.3 Order of Priority To the extent that there are any conflicts between the various parts of this Agreement and the STD, they will be read and applied in the following (descending) order of precedence: (a) (b) the body of this Agreement; the schedules and appendices; then (c) the STD. 2 TERM This Agreement will take effect on the Commencement Date and will continue until terminated in accordance with its terms. 3 RBI SITE DESIGN & BUILD PROCESS 3.1 Design & Build Process In the event the RBI Access Seeker wants to participate in the Design & Build Process for a particular RBI Site, then the Parties will comply with the provisions of schedule 2 (RBI Site Design & Build Terms) and the RBI Operations Manual, in each case with respect to the design and construction of that RBI Site. 3.2 Non-Cellular Access Seekers If the RBI Access Seeker wanting to participate in the Design & Build Process is a Non- Cellular Access Seeker, then it will also be subject to the Additional Requirements in relation to undertaking the Design & Build Process. 4 PROVISION OF RBI CO-LOCATION SERVICE 4.1 Access Provider to provide RBI Co-location Service (a) Subject to sub-clauses (b) and (c) below, the Access Provider will make the RBI Co-location Service available to the RBI Access Seeker at all RBI Sites in accordance with the terms of this Agreement. (b) The RBI Co-location Service will only be available for a particular RBI Site once the Design & Build Process is complete and that RBI Site is Site Integrated. (c) Once an RBI Site is Site Integrated it becomes a Relevant Facility as defined in the STD General Terms at which time, subject to clause 4.2 below and save as otherwise expressly provided in this Agreement, the Access Provider will make the RBI Co-location Service available to the RBI Access Seeker in accordance with the STD and the pricing provisions of this Agreement. (d) In the event that the STD expires or is superseded, then the Access Provider will continue to make the RBI Co-location Service available to the RBI Access Seeker VFNZ RBI Co-location Agreement (2degrees) 6

7 in accordance with the superseded non-price terms or in accordance with the nonprice STD terms as they stood immediately prior to expiry. (e) Each Party (including any Non-Cellular Access Seeker) will comply with, and will procure that its Personnel comply with, the terms of the Relevant Occupation (as notified to the RBI Access Seeker by the Access Provider) for any RBI Site in respect of which the RBI Access Seeker receives the RBI Co-location Service. Each Party (the Indemnifying Party) will indemnify and hold harmless the other Party (the Indemnified Party) from and against any and all claims, proceedings, liabilities, losses, costs, damages and expenses (including court and legal costs) that may be suffered or incurred by the Indemnified Party arising out of or in connection with: (i) where the Access Provider is the Indemnifying Party, any breach of the Relevant Occupation by the Indemnifying Party or its Personnel; or (ii) where the RBI Access Seeker (including any Non-Cellular Access Seeker) is the Indemnifying Party, any act or omission by the RBI Access Seeker or its Personnel which causes the Access Provider to breach the Relevant Occupation. 4.2 Non-Cellular Access Seekers If the RBI Access Seeker is a Non-Cellular Access Seeker, then, save as otherwise expressly provided in this Agreement, the Access Provider will make the RBI Co-location Service available to that RBI Access Seeker in accordance with the STD (but subject to the Additional Requirements) and the pricing provisions of this Agreement. 5 CHARGES AND PAYMENT 5.1 Design & Build Process Charges The RBI Access Seeker will be liable to pay the Design & Build Process Charges in accordance with the RBI Operations Manual, schedule 3 (RBI Co-location Pricing) and clause 5.3 below. 5.2 RBI Co-location Service Charges (a) The RBI Access Seeker will become liable to pay the RBI Co-location Service Charges in relation to a particular RBI Site to the Access Provider with effect from the earlier of: (i) the date when the RBI Access Seeker is deemed to have committed to receive the RBI Co-location Service for that RBI Site in accordance with clauses (a) or of the RBI Operations Manual; or (ii) the date when the RBI Access Seeker notifies the Access Provider that it commits to receive RBI Co-location Services at the RBI Site in accordance with clause (b) of the RBI Operations Manual, and will remain liable to pay the RBI Co-location Service Charges for so long as it continues to obtain the RBI Co-location Service on that RBI Site. To avoid doubt, the RBI Access Seeker shall not become liable to pay the VFNZ RBI Co-location Agreement (2degrees) 7

8 RBI Co-location Service Charges until Annual Landowner Rental becomes due to be paid under the Relevant Occupation. (b) The RBI Access Seeker must further comply with clause 5.3 below and schedule 3 (RBI Co-location Pricing) in relation to the RBI Co-location Service Charges. 5.3 Parties to comply with STD payment provisions Except where this Agreement provides otherwise, the Parties will comply with the following provisions of the STD General Terms with respect to all charges (including the Design & Build Process Charges and the RBI Co-location Service Charges), payment, non-payment and invoice disputes arising under or in connection with this Agreement: (a) (b) (c) (d) Clause 12 (Payment Principles); Clause 13 (Invoicing and payment of Charges); Clause 14 (Non-payment); and Clause 15 (Invoice Disputes). 6 CONFIDENTIAL INFORMATION 6.1 Parties to comply with STD Except where this Agreement expressly provides otherwise, the Parties will comply with clause 30 (Confidential Information) of the STD General Terms with respect to the disclosure of Confidential Information by either Party. Notwithstanding the foregoing, the Access Provider may publish this Agreement (or information related to it) to the extent required by the Crown, the MED or otherwise pursuant to its final Deed of Undertaking as approved by the Crown in accordance with the MED Agreement and the Telecommunications (TSO, Broadband, and Other Matters) Amendment Act INTELLECTUAL PROPERTY 7.1 Ownership Except where this Agreement expressly provides otherwise, any Intellectual Property created or owned by the Access Provider shall remain the property of the Access Provider, and any Intellectual Property created or owned by the RBI Access Seeker shall remain the property of the RBI Access Seeker. Nothing in this Agreement: (a) (b) confers any assignment, right, title or licence of one Party s Intellectual Property to the other; or restricts the rights of either Party to own, use, enjoy, licence, assign or transfer its own Intellectual Property. VFNZ RBI Co-location Agreement (2degrees) 8

9 7.2 Parties to comply with STD Notwithstanding any other provision in this Agreement, the Parties will comply with clause 28 (Intellectual Property) of the STD General Terms in relation to any Intellectual Property matters arising under or in relation to this Agreement. 7.3 Jointly Developed Intellectual Property The Parties may from time to time discuss and agree formal terms upon which they will jointly develop Intellectual Property under or in relation to this Agreement, such terms to clarify ownership of, and rights to use, any such jointly developed Intellectual Property. 8 RBI ACCESS SEEKER S LIABILITY 8.1 RBI Access Seeker s liability Save as otherwise expressly provided in this clause 8 or, where the context requires, in the Additional Requirements, the RBI Access Seeker s liability to the Access Provider in respect of any and all Defaults, negligent acts or omissions or breaches of statutory duty of or by the RBI Access Seeker under or in relation to this Agreement is governed by clause 16 (Access Seeker s liability) of the STD General Terms, provided that: (a) the terms Defaults and Indirect Damages as used in that clause 16 shall each have the meaning given in this Agreement; (b) (c) the term Mobile Co-location Service as used in that clause 16 shall be replaced with the Design & Build Process or the provision of the RBI Colocation Service and those terms shall each have the meaning given in this Agreement; the term Mobile Co-location Terms as used in that clause 16 shall be deemed to also include this Agreement; and (d) the term Other Service Providers as referenced in clauses 16.6 to 16.9 (inclusive) of the STD General Terms, will be deemed to include other RBI Access Seekers who make a Claim against the Access Provider in relation an RBI Site. 8.2 Costs of recovering Charges The reference to Charges in clause 16.5 of the STD General Terms will also include any Design & Build Process Charges the RBI Access Seeker is liable to pay under the Agreement. 9 ACCESS PROVIDER S LIABILITY 9.1 Limitation of Access Provider s liability Save as otherwise expressly provided in this clause 9 or, where the context requires, in the Additional Requirements, the Access Provider s liability to the RBI Access Seeker in respect of any and all Defaults, negligent acts or omissions or breaches of statutory duty of or by the Access Provider under or in relation to VFNZ RBI Co-location Agreement (2degrees) 9

10 this Agreement is governed by clause 17 (Access Provider s liability) of the STD General Terms, provided that: (a) the terms Defaults and Indirect Damages as used in that clause 17 shall each have the meaning given in this Agreement; (b) (c) the term Mobile Co-location Service as used in that clause 17 shall be replaced with the Design & Build Process or the provision of the RBI Colocation Service and those terms shall each have the meaning given in this Agreement; the term Mobile Co-location Terms as used in that clause 17 shall be deemed to also include this Agreement; and (d) the term Other Service Providers as referenced in clauses 17.6 to 17.9 (inclusive) of the STD General Terms, will be deemed to include other RBI Access Seekers who make a Claim against the RBI Access Seeker in relation an RBI Site. 10 INSURANCE 10.1 RBI Access Seeker s Insurance Obligations Save as otherwise provided, where the context requires, in the Additional Requirements, the RBI Access Seeker must, at its own expense, obtain and maintain insurance during the term of this Agreement in accordance with clause 6.6 of the STD General Terms Access Provider s Insurance Obligations The Access Provider must, at its own expense, obtain and maintain insurance during the term of this Agreement consistent with prudent commercial practice having regard to the scope and nature of the liabilities assumed by the Access Provider under the terms of this Agreement. 11 TERMINATION 11.1 Rights of termination Neither Party will have any right to terminate or cancel this Agreement except as expressly set out in this Agreement or, as the context may require, the STD General Terms Termination of MED Agreement by MED The Access Provider may terminate this Agreement with immediate effect by giving notice to the RBI Access Seeker, if the MED Agreement is terminated in full. In the event of such termination, the Access Provider will make a pro rata refund to the RBI Access Seeker of any RBI Co-location Service Charges paid in advance for the RBI Co-location Service but only if and to the extent such service has not been received by the RBI Access Seeker as at the effective date of termination of this Agreement. There will be no refund (partial or otherwise) of any Design & Build Process Charges in the event of such termination. VFNZ RBI Co-location Agreement (2degrees) 10

11 11.3 Surviving rights and obligations The cancellation, termination or expiry of all or any part of this Agreement shall be without prejudice to the rights of the Parties accrued up to the date of such cancellation, termination or expiry. In any case, clauses 6, 7, 8, 9, 11.3 and shall continue indefinitely notwithstanding any cancellation, termination or expiry of this Agreement. 12 FORCE MAJEURE 12.1 Parties to comply with STD Except where this Agreement expressly provides otherwise, the Parties will comply with clause 19 (Force Majeure) of the STD General Terms with respect to any Force Majeure Event which prevents or restricts either Party s ability to perform its obligations under this Agreement. 13 DISPUTE RESOLUTION 13.1 Parties to comply with STD In the event of any dispute, difference or question arising out of or in connection with this Agreement or its formation (a Dispute), then, save as otherwise expressly provided in this Agreement, the Parties must comply with the dispute resolution procedure set out in clause 35 (Dispute Resolution) of the STD General Terms. 14 NOTICES 14.1 Parties to comply with STD Subject to 14.2 below and save as otherwise expressly provided in this Agreement, any notice, consent, approval, agreement, undertaking, report or other communication given by a Party for the purposes this Agreement (a Notice) will be given by that Party in compliance with clause 42 (Notices) of the STD General Terms Formal Notices Any notice of a Dispute or termination notice given by a Party must, in addition to complying with clause 13.1 above, be delivered in writing to the following addressees of each Party: RBI Access Seeker 131 Khyber Pass Road PO Box 8355 Auckland 1150 Attn: Chief Executive Officer Access Provider Level 1, 20 Viaduct Harbour Avenue Private Bag Auckland 1142 Attn: General Counsel Fax: VFNZ RBI Co-location Agreement (2degrees) 11

12 Copy to: Fax: GENERAL 15.1 Mutual warranties As at the date of this Agreement, each Party represents to the other that, subject to any express provision to the contrary in this Agreement: (a) (b) (c) it has full power and authority to enter into and perform its obligations under this Agreement; there is no other agreement, arrangement, understanding or requirement binding on it, that would prevent or impede its entry into or performance of this Agreement; and the performance of its obligations under this Agreement shall not result in the breach of any statute or regulation Further assurances Each Party agrees to execute and deliver any documents and to do all things as may reasonably be required by the other Party to obtain the full benefit of this Agreement according to its true intent No reliance Each Party undertakes that in entering into this Agreement it has relied only on the warranties and representations expressly set out in this Agreement, and otherwise has relied solely on its own knowledge, experience and judgement in respect of all other matters influencing its entry into this Agreement Entire agreement This Agreement constitutes the sole and entire understanding between the Parties with respect to the subject matter hereof and supersede all prior discussions, representations and understandings, written or oral Costs Each Party will meet its own legal, accounting and other professional and advisory costs and expenses incurred in relation to the negotiation, preparation and execution of this Agreement and any future amendments to it. Each Party will meet its own costs in performing its obligations under this Agreement, except to the extent this Agreement expressly provides otherwise, or where the Parties expressly agree otherwise Legal nature of relationship Notwithstanding any other provision in this Agreement, nothing in this Agreement is intended to or will imply or be construed as a fiduciary obligation, or create a legal relationship of partnership or joint venture, or give either Party VFNZ RBI Co-location Agreement (2degrees) 12

13 any right to act on behalf of or bind the other Party in any way, except as expressly permitted by this Agreement Privity This Agreement is not intended to confer any benefit on or create any obligation enforceable at the suit of any person not a party to this Agreement, except where this Agreement expressly provides otherwise No waiver No failure, delay or indulgence by any Party in exercising any power or right conferred on that Party by this Agreement shall operate as a waiver of that power or right. A single exercise of any of those powers or rights does not preclude further exercises of those powers or rights or the exercise of any other powers or rights under this Agreement Consistency of agreements The Access Provider will ensure that its equivalent agreements with other third party access seekers wishing to participate in the Design & Build Process and/or obtain the RBI Co-location Service on any RBI Site will not differ materially from the terms of this Agreement. The Access Provider will not, without the prior written consent of each RBI Access Seeker with whom it has entered into an agreement at the relevant time, enter into an agreement for the provision of RBI Co-location Service with an access seeker on terms materially different to those in this Agreement, or agree with an access seeker to amend the terms of its equivalent agreement with the Access Provider which would render that agreement materially different to this Agreement Amendments No amendment to this Agreement will be effective unless it is in writing and executed by both Parties Invalidity Any unlawful provision of this Agreement will be amended to the minimum extent necessary to ensure that it is not unlawful and, as far as is possible, to ensure that it is consistent with the intent and effect of the provision. The remaining provisions will be enforceable as if such unlawful provision had not been included in this Agreement. If the provision is unable to be amended without materially altering the intent and effect of the provision, it will be severed, and the remaining provisions enforceable, but only if the severance does not frustrate this Agreement Law and jurisdiction This Agreement will be governed by, and construed in accordance with, the laws of New Zealand. Where the courts are to have jurisdiction under this Agreement the courts of New Zealand will have exclusive jurisdiction Counterparts This Agreement may be executed in any number of counterparts (including facsimile or scanned and ed copies). So long as each Party has received a counterpart or counterparts carrying the signatures of the other Party, the VFNZ RBI Co-location Agreement (2degrees) 13

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15 Schedule 1 - Glossary In this Agreement, unless the context requires otherwise: Access Provider Equipment means any telecommunications, transmission and reception equipment (including any necessary supporting equipment, cabinets or shelters) used by, or which is to be used by, the Access Provider. Access Provider Equipment includes the equipment of any person other than the Access Provider where such equipment is being, or is to be, used to support the Access Provider s telecommunication, transmission and reception equipment. Access Seeker means an access seeker as defined in Part 3 of Schedule 1 of the Act in the section Co-location on cellular mobile transmission sites. Access Seeker Equipment means any telecommunications, transmission and reception equipment (including any necessary supporting equipment, cabinets or shelters) used by, or which will be used by, RBI Access Seekers. Access Seeker Equipment includes the equipment of any person other than RBI Access Seekers where such equipment is being, or is to be, used to support the relevant RBI Access Seeker s telecommunication, transmission and reception equipment on the relevant RBI Site. Act means the Telecommunications Act Additional Requirements means the additional requirements for Non-Cellular Access Seekers as set out in schedule 4 of this Agreement. Agreement or RBI Co-location Agreement including all its schedules and appendices. means this RBI Co-location Agreement Charges means all charges payable by the RBI Access Seeker pursuant to this Agreement including, without limitation, the Design & Build Process Charges and the RBI Co-location Service Charges. Commencement Date means the first date on which each Party has received a counterpart of this Agreement executed by the other Party. Confidential Information means this Agreement itself, all conversations and documents related to the negotiation, variation or amendment of this Agreement or any replacement agreement, any correspondence about this Agreement marked or identified as confidential and all information which is confidential or proprietary to the Disclosing Party and is used, disclosed or collected in connection with this Agreement, including information which is confidential or proprietary to a third party and is used or disclosed in connection with this Agreement by the Disclosing Party under licence from that third party and including information derived from Confidential Information, but excludes: (a) information which is independently developed by the Receiving Party outside the scope of this Agreement, provided that such development did not rely on any Confidential Information; VFNZ RBI Co-location Agreement (2degrees) 15

16 (b) (c) (d) (e) (f) (g) information obtained from a source independent of the Disclosing Party other than by a breach of an obligation of confidence; information which was publicly available at the time it was received; information which was known to the Receiving Party at the time it was received or becomes publicly available after the time it was received other than by a breach of an obligation of confidence; information expressly stated under this Agreement to be disclosed to the public or telecommunications industry; information expressly stated under this Agreement not to be Confidential Information; or any press release or other public statement that is agreed by the Parties. To avoid doubt, all information contained in the Co-location Database is Confidential Information of Vodafone and may not be disclosed by the RBI Access Seeker to any third party or used by the RBI Access Seeker other than as expressly permitted under this Agreement. Default means any failure, refusal or inability by a Party to meet any of its obligations under this Agreement or the STD (as the context may require). Design & Build Process means the design and build process for RBI Sites as set out in schedule 2 and the RBI Operations Manual, and for the avoidance of doubt includes the Fast Track Design & Build Process during RBI Year 1. Design & Build Process Charges means the Design & Build Process Charges detailed in the RBI Operations Manual and schedule 3 (RBI Co-location Pricing). Dispute has the meaning given in clause 13. Fast Track Design & Build Process means the fast track design and build process set out in schedule 2, which will apply to RBI Year 1 Sites. Force Majeure Event has the meaning given in the STD General Terms. Health and Safety Law means the Health and Safety in Employment Act 1992, the Hazardous Substances and New Organisms Act 1996, the Building Act 2004, the Electricity Act 1992 and all related legislation, regulations, mandatory codes of conduct and standards, in each case as amended from time to time, and also includes all related and applicable New Zealand case law. Indirect Damages has the meaning given in the STD General Terms, provided that the term Mobile Co-location Terms as used in that definition will be deemed to also include this Agreement. Intellectual Property has the meaning given in the STD General Terms. VFNZ RBI Co-location Agreement (2degrees) 16

17 Interference Management & Design Document means the Mobile Co-location Interference Management & Design document in the STD. Mast means any tower, pole, mast or other similar structure that is used for telecommunications transmission and reception via a Network and that is the subject of a Relevant Occupation by the Access Provider. MED means The Sovereign in right of New Zealand acting by and through the Chief Executive of the Ministry of Economic Development. MED Agreement means the Rural Broadband Agreement between the Access Provider and the MED dated 20 April 2011, which is available to view on the MED website. Network means, in relation to a Party, the telecommunication systems which that Party uses from time to time to provide services to its customers, including all transmission media, telecommunications equipment, operational support systems, business support systems and associated equipment, structures and premises, but excluding the other Party s equipment, systems or premises. Non-Cellular Access Seeker Seeker. means an RBI Access Seeker that is not an Access Notice has the meaning given in clause 14.1 of this Agreement. Party means (as the context requires) the Access Provider or the RBI Access Seeker and Parties means both the Access Provider and the RBI Access Seeker. Personnel means, in respect of a Party, any individual who is a director, officer, employee, contracted staff member or other worker of that Party, or of that Party s agents or contractors. RBI means the Government s broadband initiative for Zone 4. RBI Co-location Service means a service that enables an RBI Access Seeker to locate their telecommunications transmission and reception equipment (including any necessary supporting equipment) on an RBI Site in accordance with the process set out in this Agreement. RBI Co-location Service Charges means the charges payable by the RBI Access Seeker to the Access Provider in respect of the RBI Co-location Service as detailed in schedule 3. RBI Operations Manual means the RBI Site Design & Build Operations Manual attached as appendix 1 to schedule 2 of this Agreement. RBI Site means new Access Provider cell towers (including without limitation any relevant Mast or Utility Service), where the construction of such towers is funded in whole or in part by grant funding received from the MED in relation to the RBI. To avoid doubt, an RBI Site specifically excludes any Access Provider Equipment, any Access Seeker Equipment and any equipment that is placed on such towers, or any VFNZ RBI Co-location Agreement (2degrees) 17

18 associated cabinets or shelters, to allow the RBI Access Seeker to use the RBI Colocation Service, including: (a) (b) (c) the antenna and ancillary equipment; antenna feeder cables and bridge section between (i) horizontal gantry provided by Access Provider and (ii) any associated cabinets or shelters; and radio equipment and housings. RBI Year 1 has the meaning given in schedule 2. RBI Year 1 Sites means those RBI Sites listed in Appendix C of Schedule 2 which the Access Provider intends to deploy during RBI Year 1. Relevant Facility has the meaning given in the STD General Terms. Relevant Occupation means a lease, sub-lease, sub-licence or other right to occupy or possess (which may arise, without limitation, as a result of ownership) by the Access Provider of any RBI Site. Site Integrated means in relation to an RBI Site: (a) (b) (c) (d) the RBI Site is completed in accordance with this Agreement; the Access Provider Equipment is integrated to the Access Provider s Network at that RBI Site; the Access Seeker Equipment is integrated to the Access Seeker s Network at that RBI Site (Note: this criteria remains subject to the delay provisions in the RBI Operations Manual); and there is no unacceptable performance degradation at the RBI Site in accordance with the Interference Management & Design Document. STD means the Standard Terms Determination for Co-location on Cellular Mobile Transmission Sites issued under the Act, as updated or replaced from time to time. STD General Terms means the Mobile Co-locations General Terms forming part of the STD, as updated or replaced from time to time. Telecom means Telecom New Zealand Limited. Utility Service means any facility that is used primarily for the purpose of providing utility services to or on the RBI Location, that is associated with an RBI Site, including: (a) (b) power, including AC main power feed and transformer; access track; VFNZ RBI Co-location Agreement (2degrees) 18

19 (c) (d) (e) (f) maintenance; fencing, including security fence (if specified in the Final Detailed Site Design), and gate; horizontal gantry to support antenna feeder cable interface to the Mast; and electrical and lightning earthing. Working Day has the same meaning as given to that expression in the Act. Year means each successive period of 12 months, commencing on the Commencement Date and each subsequent anniversary until this Agreement expires or is terminated in accordance with its terms. Zones 1, 2 and 3 means the Telecom line density zones known as Zone 1, Zone 2, Zone 3a and Zone 3b, as generally used by Telecom to describe those urban density areas of New Zealand served by telephone exchanges with a total line count of greater than 500 lines, and which at 30 June 2008 together included not less than 80% of total existing PSTN lines. Zone 4 means areas of New Zealand (except the Chatham Islands) that are not in Zones 1, 2 and 3. VFNZ RBI Co-location Agreement (2degrees) 19

20 Schedule 2 - RBI Site Design & Build Terms 1 SCOPE 1.1 Relevant provisions & other defined terms (a) The Parties will comply with the provisions of the Agreement and this schedule 2 (including the RBI Operations Manual and the Fast Track Design & Build Process where applicable), in each case with respect to the design and construction of RBI Sites. (b) (c) The term Fast Track Design & Build Process as referenced in this schedule 2 means the Fast Track Design & Build Process for RBI Year 1 Sites which is attached as Appendix B to this schedule. The term RBI Year 1 as referenced in this schedule means the period of 12 months commencing on 1 July FAST TRACK DESIGN & BUILD PROCESS 2.1 Fast Track Design & Build Process to apply in RBI Year 1 (a) During RBI Year 1 the Design & Build Process will be the process outlined in this schedule and the RBI Operations Manual but as amended by the provisions of the Fast Track Design & Build Process. (b) Following RBI Year 1 the Design & Build Process will be the process outlined in this schedule and the RBI Operations Manual and the Fast Track Design & Build Process will cease to apply. 3 OTHER RBI ACCESS SEEKER COMMITMENTS 3.1 Each Party will, and will procure that its Personnel, take all reasonable care, while accessing any RBI Site during the Design & Build Process, not to cause any damage, harm or interruption to: (a) (b) (c) (d) the RBI Site; any Access Provider Equipment or Access Seeker Equipment at the RBI Site; other personnel at the RBI Site; and the access track leading to the RBI Site and any other land, fencing, equipment or stock, in each case on or neighbouring the RBI Site and whether or not owned by the Access Provider. 3.2 The RBI Access Seeker will comply with, and will procure that its Personnel comply with, the terms of the Relevant Occupation for any RBI Site which the RBI Access Seeker or its Personnel access during the Design & Build Process, VFNZ RBI Co-location Agreement (2degrees) 20

21 subject to the Access Provider giving the RBI Access Seeker a copy of such Relevant Occupation. 4 OTHER ACCESS PROVIDER COMMITMENTS 4.1 The Access Provider will undertake the Design & Build Process promptly, efficiently and with reasonable care and skill in accordance with: (a) this Agreement; and (b) practices which, at the date of undertaking the Design & Build Process in relation to a particular RBI Site, are commonly accepted as good industry practice applicable to the Design & Build Process. 4.2 The Access Provider will comply with, and will procure that its Personnel comply with, the terms of the Relevant Occupation and RMA Consent for any RBI Site. 5 HEALTH AND SAFETY 5.1 Compliance with law and STD Each Party must, in relation to the performance of their respective obligations under the Agreement, comply, and ensure that its Personnel comply, with all material and relevant Health and Safety Law and its respective obligations under clause 36 (Health and Safety) of the STD General Terms. 5.2 Indemnity To the fullest extent permitted by the Health and Safety Law, each Party (Indemnifying Party) shall indemnify and hold harmless the other Party against any and all claims, proceedings, liabilities, losses, costs, damages and expenses (including court and legal costs) that may be suffered or incurred by that other Party arising out of or in connection with this Agreement as a result of any breach of any Health and Safety Law by the Indemnifying Party or its Personnel, or any breach of section 5.1 by the Indemnifying Party or its Personnel, in either case that results in the other Party either being in breach of any Health and Safety Law or being the subject of any claim or proceedings by any third party against or involving the other Party. 6 GENERAL INDEMNITIES 6.1 Public Liability (a) Each Party will indemnify and hold harmless the other Party from and against any and all claims, proceedings, liabilities, losses, costs, damages and expenses (including court and legal costs) that may be suffered or incurred by that other Party arising out of or in connection with any physical damage to that other Party s tangible property, or any claim brought by a third party against that other Party for any physical damage to that third party s tangible property, or any personal injury or death, in each such case caused by the activities of the first Party or its Personnel under or in connection with the Design & Build Process (Public Liability Claim). VFNZ RBI Co-location Agreement (2degrees) 21

22 (b) Where a Party (Indemnified Party) seeks to be indemnified under this section 6.1 in respect of any Public Liability Claim, other than a claim in respect of physical damage to the Indemnified Party s tangible property: (i) (ii) the Indemnified Party must notify the other Party (Indemnifying Party) as soon as reasonably practicable after becoming aware of the Public Liability Claim, setting out reasonable details of the Public Liability Claim and claiming indemnification under this section 6.1; the Indemnifying Party may elect to defend the Public Liability Claim at its own cost, in which case: (A) (B) the Indemnified Party must render all reasonable assistance to, and co-operate with, the Indemnifying Party for that purpose, at the Indemnifying Party s cost; but the Indemnifying Party will not admit liability or settle the Public Liability Claim without the Indemnified Party s prior consent (not to be unreasonably withheld or delayed). 6.2 Compliance with Relevant Occupation (a) Each Party (the Indemnifying Party) will indemnify and hold harmless the other Party (the Indemnified Party) from and against any and all claims, proceedings, liabilities, losses, costs, damages and expenses (including court and legal costs) that may be suffered or incurred by the Indemnified Party arising out of or in connection with: (i) (ii) where the Access Provider is the Indemnifying Party, any breach of the Relevant Occupation by the Indemnifying Party or its Personnel during the Design & Build Process; or where the RBI Access Seeker (including any Non-Cellular Access Seeker) is the Indemnifying Party, any act or omission by the RBI Access Seeker or its Personnel which causes the Access Provider to breach the Relevant Occupation during the Design & Build Process subject to the Access Provider giving the RBI Access Seeker a copy of such Relevant Occupation. VFNZ RBI Co-location Agreement (2degrees) 22

23 Appendix A - RBI Operations Manual VFNZ RBI Co-location Agreement (2degrees) 23

24 Appendix B - Fast Track Design & Build Process for RBI Year 1 Sites The Design & Build Process timeframes set out in the RBI Operations Manual will be amended as follows for RBI Year 1 Sites. Otherwise the RBI Operations Manual remains unchanged with respect to the Design & Build Process for RBI Year 1 Sites. Relevant section of RBI Operations Manual Change 9.2 After receipt of the Site Data Pack Application the Access Provider will issue a Site Data Pack within three (3) Working Days If the Parties fail to reach agreement on a suitable time for the Detailed Site Design Visit, the Access Provider will determine a date that is within fifteen (15) Working Days of receipt of the Initial Site Application Within five (5) Working Days following the Detailed Site Design Visit, the Access Provider s Project Manager will issue the Site Design Notes to the Access Seeker s Project Manager Within three (3) Working Days after the RBI Access Seeker receives the completed Site Design Notes from the Access Provider, the RBI Access Seeker will either: (a) Confirm to the Access Provider that the Site Design Notes have been completed in accordance with the Detailed Site Design Visit; or (b) Make a request to the Access Provider to meet to discuss the Site Design Notes, after which time, the Parties will agree on a time to meet within two (2) Working Days If the Access Provider and the RBI Access Seeker cannot agree on a Final Detailed Site Design within thirty (30) Working Days of the commencement of the site design process, the Access Provider will determine the Final Detailed Site Design (b) If the Access Provider has determined the Final Detailed Site Design in accordance with clause of this Manual, the RBI Access Seekers will have five (5) Working Days to notify the Access Provider if they do not wish to receive the RBI Co-location Service in respect of the RBI Site On receipt of the Schedule of Site Specific Conditions the RBI Access Seeker will have five (5) Working Days to request any reasonable amendments to those conditions. VFNZ RBI Co-location Agreement (2degrees) 24

25 If Construction Drawings are unable to be agreed within twenty (20) Working Days of the date that the Access Provider distributes the first draft of the Construction Drawings, the Access Provider will determine the final Construction Drawings The Access Provider will issue a notice of intended construction commencement date to the RBI Access Seeker a minimum of twenty (20) Working Days prior to the start of the Build Complete Milestone (the Construction Notice) No later than five (5) Working Days after the Access Provider has issued the Project Plan, the RBI Access Seekers will: (a) Approve the Project Plan; or (b) Request reasonable amendments to the Project Plan If the Project Plan is unable to be agreed within ten (10) Working Days of the date the Access Provider distributes the first draft of the Project Plan, the Access Provider will determine the final Project Plan. Comparison between Standard and Fast Track Design & Build Process Dates: Standard Fast Track RBI Co-lo RBI Year 1 Design Opt In Final Detailed Design (Detailed Site Design Visit held within 15 Working Days of request) Agree Design 10 5 Site Specific Schedule 10 5 Construction Drawings Pre-build notice (may be issued while preparing Construction Drawings) Project Plan WD (Note: these are typical timeframes and may vary slightly) VFNZ RBI Co-location Agreement (2degrees) 25

26 Appendix C - RBI Year 1 Sites VF Site ID VF New Build Site Name Tamahere East (SH1) Eureka Puketaha Mystery Events Centre Ohoka Kainga West Melton Central Claris Ashhurst Marton Central Swannanoa Naseby Riversdale Beach VFNZ RBI Co-location Agreement (2degrees) 26

27 SCHEDULE 3 - RBI CO-LOCATION PRICING: Each RBI Access Seeker will be liable to pay to the Access Provider the fees and charges as set out in this Schedule in accordance with the Agreement (including this schedule and the RBI Operations Manual). DEFINITIONS & INTERPRETATION: Annual Landowner Rental is the rental for the Relevant Occupation. Annual Planned Maintenance Contribution is for planned maintenance only and excludes Force Majeure Events and is subject to annual adjustments in accordance with this Schedule. See section of this Schedule headed Annual Planned Maintenance Contribution for further information relevant to this definition. Antenna Units *: One half of an Antenna Unit consists of: any Panel or Omni Antenna that is equal or less than.5m in length; or any Miscellaneous Antenna that is of a similar dimension. Any odd numbered half Antenna Unit shall for calculation purposes be rounded up to the nearest full Antenna Unit. The minimum quantity of units per Access Seeker for calculating the share of Annual OPEX will be One Antenna Unit. One Antenna Unit consists of: any Panel or Omni Antenna that is less than or equal to 2.3m in length; any Dish Antenna that is less than or equal to 0.6m in diameter; or any Miscellaneous Antenna (yagi, grid pack, etc) that the Access Provider considers to be of a reasonable dimension (acting reasonably). Two Antenna Units consist of: any Panel or Omni Antenna that is greater than 2.3m in length. Three Antenna Units consist of: any Dish Antenna that is greater than 0.6m in diameter and less than or equal to 1.2m in diameter. VFNZ RBI Co-location Agreement (2degrees) 27

28 Five Antenna Units consist of: any Dish Antenna that is greater than 1.2m in diameter. *Each Antenna Unit includes provision for reasonable ancillary equipment associated with the antenna, such as mast head amplifiers and remote head units. *For any other types of antenna and or associated ancillary equipment that may be proposed which do not reasonably fit within a category defined above, an appropriate Antenna Unit value will be determined by the Access Provider, acting reasonably, based on consideration of factors including, but not limited to, the size, weight, area occupied, position on the Mast, and relative structural loading of the proposed antenna or associated equipment. Design & Build Process Charges means the application fees payable by each RBI Access Seeker as set out in the section of this Schedule headed Design & Build Process Charges. Equipment Costs means the costs calculated as set out in the section of this Schedule headed Equipment Costs. Height of the Mast is the height of the Mast at the highest point inclusive of any antenna as determined in the Final Detailed Site Design. For the avoidance of doubt, if there is a future increase to the overall height of the mast due to the mast being extended in height, or antennas being placed above the original height, this does not result in a recalculation of the Height of the Mast. Land Unit means a 5m² ground area for equipment housing (eg.cabinet). RBI Co-location Service Charges for each RBI Access Seeker means that RBI Access Seeker s Equipment Costs plus an annual $500 administration fee. RBI Operating Costs as that term is used in this schedule means the Annual Planned Maintenance Contribution plus the Annual Landowner Rental. Reserved Capacity means reserved Antenna Unit capacity and associated Land Unit capacity (if applicable) of the Access Provider as forecast in accordance with Section 9 of the Mobile Co-location Operations Manual of the STD. TIER 1 means the top third (1/3) of the Height of the Mast. TIER 2 means the bottom two thirds (2/3) of the Height of the Mast. All charges set out in this Schedule are GST exclusive. All charges are subject to annual review and, where applicable, increase in accordance with the percentage increase in Consumer Price Index (All Groups) for the corresponding period published by Statistics New Zealand or other applicable Government agency. To avoid doubt, a CPI adjustment will not be made more frequently than annually during the term of the Agreement. Any such increase will VFNZ RBI Co-location Agreement (2degrees) 28

29 take effect on the first day of the relevant Year. The Access Provider will notify the RBI Access Seeker of the increase, and provide supporting calculations. DESIGN & BUILD PROCESS CHARGES Each RBI Access Seeker will be liable to pay the following application fees to the Access Provider. Description RBI Access Seeker locating ANY Antenna Units within the Tier 1 RBI Access Seeker locating Antenna Units within Tier 2 ONLY Site Data Pack Application Fee per Access Seeker Initial Site Application Fee per Access Seeker $500 per RBI Site $500 per RBI Site $2000 per RBI Site $1000 per RBI Site EQUIPMENT COSTS The Access Provider s and each RBI Access Seeker s Equipment Costs are determined on a per Antenna Unit basis, based on: the position of each individual Antenna Unit on the Mast (ie. within Tier 1 or Tier 2); and the Land Units used by the Access Provider and each RBI Access Seeker. The Access Provider and each RBI Access Seeker using any ground area in excess of 5m² will have their Antenna Unit cost increased by 15% per additional Land Unit. The Equipment Costs are calculated by dividing the RBI Operating Costs between the Access Provider and the RBI Access Seekers on a per Antenna Unit basis with any Antenna Unit within Tier 2 being charged at half the price of an Antenna Unit within Tier 1. For the avoidance of doubt a single RBI Access Seeker can have Antenna Units in both Tier 1 and Tier 2 and the Antenna Unit cost for each individual Antenna Unit will be determined by its particular position on the Mast. If the Access Provider has Reserved Capacity the Access Provider must not pass on the RBI Operating Costs for the Reserved Capacity to any RBI Access Seeker. The Access Provider s Equipment Costs for the Reserved Capacity shall be calculated pursuant to the number and position of the Antenna Unit(s) and Land Unit Capacity (if applicable) forecast by the Access Provider. NOTE: as the number of Antenna Units on a Mast change, or the number of RBI Access Seekers changes, or the Access Provider or an RBI Access Seeker requires an additional Land Unit the Antenna Unit cost will change. Therefore the Access Provider s and each RBI Access Seeker s Equipment Costs will be recalculated VFNZ RBI Co-location Agreement (2degrees) 29

30 promptly should any such event arise and any necessary adjustments made by the Access Provider. RBI EXAMPLE CALCULATION: Note that the examples below are for illustrative purposes and show indicative pricing for the RBI Operating Costs. Example 1: Vodafone and Access Seeker 1 both pay the same Equipment Costs because they have a standard Land Unit each and the same number of Antenna Units, with all of their Antenna Units within Tier 1. Access Seeker 2 has a standard Land Unit and the same number of Antenna Units on the Mast as Vodafone and Access Seeker 1 but its Equipment Costs are lower because all their Antenna Units are located within Tier 2. Example 2: Vodafone and Access Seeker 1 have a standard Land Unit each, the same number of Antenna Units and all of their Antenna Units are within Tier 1. In addition, Vodafone has Reserved Antenna Unit Capacity within Tier 1. Therefore Vodafone s Equipment Costs are higher than Access Seeker 1 (ie. when combining charges for Vodafone NZ Ltd and Vodafone Reserved from the spreadsheet below). Access Seeker 2 has a standard Land Unit and the same number of Antenna Units as Vodafone and Access Seeker 1 but only has Antenna Units within Tier 2 and therefore pays 50% of the Equipment Costs paid by Access Seeker 1 and Vodafone NZ Ltd. VFNZ RBI Co-location Agreement (2degrees) 30

31 Example 3: Vodafone and Access Seeker 1 have the same number of Antenna Units and all of their Antenna Units are within Tier 1. However, Access Seeker 1 has an additional Land Unit and therefore its Equipment Costs are higher. Access Seeker 2 has a standard Land Unit and the same number of Antenna Units as Vodafone and Access Seeker 1 but only has Antenna Units within Tier 2 and therefore pays 50% of the Equipment Costs paid by Vodafone. VFNZ RBI Co-location Agreement (2degrees) 31