AGREEMENT REGARDING TELIA MOBILE HOST BETWEEN NETCOM AND. V Side 1

Transcription

1 AGREEMENT REGARDING TELIA MOBILE HOST BETWEEN NETCOM AND V Side 1

2 Table of Contents 1 BACKGROUND SCOPE OF AGREEMENT MOBILE SERVICES COVERED BY THE AGREEMENT MAIN INTERFACES BETWEEN THE PARTIES NETCOM S GENERAL OBLIGATIONS SERVICE PROVIDER S GENERAL OBLIGATIONS PRICES INVOICING AND PAYMENT SECURITY FOR PAYMENT LIABILITY FORCE MAJEURE CONFIDENTIALITY NOTIFICATION TERM OF THE AGREEMENT TERMINATION EFFECTS OF TERMINATION OF THE AGREEMENT ASSIGNMENT OF THIS AGREEMENT CHANGE OF CONTROL ENTIRE AGREEMENT INVALIDITY OF PROVISIONS ORDER OF PRECEDENCE SUSPENSION OF MOBILE SERVICES DISPUTES - GOVERNING LAW NOTIFICATION AND CONTACT PERSONS MISCELLANEOUS V Side 2

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4 AGREEMENT REGARDING TELIA MOBILE HOST The following Agreement regarding Telia Mobile Host has been entered into between: NetCom as, org no and Service Provider, org no. hereinafter referred to as Service Provider Collectively NetCom and Service Provider are hereinafter referred to as the Parties, and individually as a Party. 1 BACKGROUND NetCom operates a GSM mobile communications network in Norway. This Agreement sets forth the terms and conditions applicable to the supply by NetCom and the procurement by Service Provider of the services covered by this Agreement. 2 SCOPE OF AGREEMENT 2.1 General NetCom hereby grants Service Provider a non-exclusive right, against payment of an agreed commercial fee as further set out in the Appendices, to use the Network in order to offer public mobile communications services to its End Customers. Service Provider may for this purpose also use a reseller to market and mediate Service Provider s services. The Service Provider is not entitled to subcontract or pass on any of the rights under this Agreement to a third party, except for as provided in Section 17 below. When in this Agreement referring to Service Provider s obligations towards NetCom and/or End Customers, Service Provider shall ensure and be responsible for Reseller complying with the same obligations. The Agreement also provides that Service Provider may, for marketing, sales and service administration engage agents, resellers or other representatives to sell mobile services to the End Customer market in Service Provider s name. However, Service Provider shall always have the sole responsibility for the fulfilment of its obligation visà-vis NetCom under this Agreement. This Agreement covers the technical, financial and other terms and conditions that shall apply between the Parties, as well as the Parties other rights and obligations associated with each Party s rights and undertakings under this Agreement. V Side 4

5 2.2 Definitions For the purpose of this Agreement the following terms and abbreviations shall have the meaning herein assigned to them unless the subject matter or context would obviously require otherwise. The words mentioned in singular formula signify the same plural formula and vice versa whenever the context so requires. Agreement Agreement Document Annex End Customer IMSI number Mobile Service MSISDN number Network SIM card Subscription Agreement this Agreement Document together with all Appendices. this Agreement Document exclusive of the Appendices. an Annex to the Agreement Document forming part of this Agreement. a physical or legal person with whom Service Provider or Reseller has signed a Subscription Agreement. International Mobile Subscriber Identity. The SIM card s unique number, which is used within the GSM network to give each subscription a unique identity, and to specify the card s home network and nationality. Services provided by NetCom for the purpose of resale. Mobile Station International Subscriber Directory Number. The GSM subscription s telephone number, i.e. the number used in order to connect to a mobile subscription. the GSM mobile communication network that NetCom has established in Norway. Subscriber Identity Module card. the agreement, regardless of whether regulating a pre-paid or post-paid Service, regarding Services entered into between End Customer on one hand and Service Provider or Reseller on the other hand. V Side 5

6 3 MOBILE SERVICES COVERED BY THE AGREEMENT The Mobile Services covered by this Agreement are set out in Annex 2. New services that the Parties develop and place into commercial operation may be implemented under this Agreement upon further agreement between the Parties. NetCom has the right to alter, amend or withdraw Mobile Services specified in Annex 2 upon prior written notice, subject to applicable legislation, but no less than 60 days without the written consent of the Service Provider. 4 MAIN INTERFACES BETWEEN THE PARTIES 4.1 Provisioning services NetCom shall offer Service Provider provisioning services. The Provisioning service interface is specified in Annex 6. The service level is defined in Annex Call detail records (CDR) services NetCom shall offer Service Provider call detail records (CDR). The CDR format is based on the TAP-specifications defined by the GSM Association. NetCom can change the applied TAP format on a two months written notice. File(s) with CDRs shall normally be sent to the Service Provider every 24 hours. The actual CDR format is specified in Annex 5. The service level is defined in Annex Helpdesk NetCom shall provide Service Provider with second line support. The support service (helpdesk) can be reached by , web or telephone. The service level is defined in Annex Changes NetCom has the right to alter or amend all interfaces between the Parties upon prior written notice, subject to applicable legislation, but no less than 60 days without the written consent of the Service Provider. 5 NETCOM S GENERAL OBLIGATIONS 5.1 Operation of the Network NetCom shall see to that the operation and maintenance of the Network is carried out in such a way as to promote high availability and accessibility for End Customers. NetCom shall notify Service Provider of scheduled operational interruptions and other planned activities that could limit normal availability in the Network. Such notice shall be furnished as soon as possible. V Side 6

7 NetCom shall inform Service Provider of substantive changes in the Network coverage area, and of technical modifications or other changes that could have impact on the Services provided and the use of such. Such notice shall be provided as soon as possible and, if possible, no later than four weeks before an action is initiated. 5.2 Interconnection traffic administration NetCom shall administer the operator interface between Service Provider s telecommunication traffic in the Network and other telecommunication operators networks. This means that NetCom shall administer all interconnected traffic attributable to Service Provider s or reseller s End Customers on the Network. 5.3 High usage reports (fraud) To prevent fraud NetCom can offer high usage reports to Service Provider when its customers use of mobile services in a foreign mobile network (roaming) reach a certain limit. 6 SERVICE PROVIDER S GENERAL OBLIGATIONS 6.1 SIM-cards SIM-cards, to be used by End customers, shall be in accordance with specifications approved by NetCom, and be delivered by a supplier approved by NetCom. Furthermore NetCom shall have the right to approve SIM-cards before they are activated in NetComs network. The SIM-cards shall only contain the profile of NetCom and Service Provider is not entitled to implement other profiles without separate agreement. SIM-cards can be purchased from NetCom upon signing a separate agreement. 6.2 Procurement of MSISDN numbers Service Provider shall apply for MSISDN number series from the Norwegian Post- and Telecommunications authority. Service Provider is obligated to see to that the MSISDN number series comply with and can be used in the Network. Service Provider shall cover all costs incurred in order to implement Service Providers numbers. 6.3 Provision of services Service Provider shall provide services in its own name and for its own account, and shall independently set prices and other terms and sales conditions. Service Provider has the sole responsibility of marketing and billing its services towards End Customers. However, joint marketing may occur at the request of either Party, assuming that the Parties reach agreement as to the content of the marketing and the division of expenses and income. V Side 7

8 Service Provider has the sole responsibility and liability for the relationship with End Customers. This Agreement entails no contractual liability for NetCom vis-à-vis End Customers. Nor shall anything in this Agreement be understood or interpreted in such a way that any contractual relationship exists between NetCom and the End Customers. 6.4 Number portability Service Provider shall comply with legislation and be in possession of the necessary agreements in order to ensure number portability. 6.5 Unauthorised use of the Network Service Provider shall follow any instructions issued to Service Provider by NetCom with the purpose of preventing unauthorised access to or use of the Network. 6.6 Legal interception, etc. Service Provider shall be obligated to run its telecommunications operations in such a way that NetCom at all times can meet its obligations with respect to legal interception or monitoring as provided by law, statute, license conditions or government resolutions. Service Provider undertakes to fully comply with NetCom s applicable instructions given from time to time concerning such obligations. NetCom shall be entitled to reasonable compensation from Service Provider for actions taken by the company in pursuance of the above. 6.7 Instructions Service Provider shall follow all instructions from NetCom that are given in order to abide by law, regulations or other binding decisions by public authorities. 6.8 Forecasts Service Provider shall provide NetCom with yearly forecasts on expected total volume. NetCom may, if deemed necessary by NetCom due to network planning objectives, further specify the aggregate level on which forecasts are to be provided. Service Level, according to Annex 3, is dependent on the forecasts given. 6.9 Linking to NetCom domain Service Provider is not entitled in its operation to establish links on any of its domains to any NetCom domain. V Side 8

9 7 PRICES 7.1 Agreed prices Service Provider shall pay NetCom according to the prices specified in Annex Price changes Price changes initiated by NetCom NetCom shall have the right to impose changes to the prices twice per calendar year. The new prices shall take effect as from the second month calculated from the end of the month during which NetCom notified such price change in writing, however subject to the earliest date permitted by legislation if applicable. If Service Provider does not accept the new prices, Service Provider may in writing request negotiations of the price changes. Such request must be forwarded within one month from the date the notification of the price changes was given. If negotiations have been requested and the Parties are unable to agree on the prices the Service Provider is entitled to terminate the Agreement subject to Section Price changes initiated by Service Provider Service Provider shall have the right to request in writing renegotiations two (2) times per year. If the Parties are unable to agree on a change in the prices, Service Provider is entitled to terminate the Agreement subject to Section Other price changes NetCom shall have the right to impose price changes on Service Provider which are a result of changes to NetCom s cost base or a requirement for rebalancing of prices outside NetCom s control, hereunder but not limited to, changes in taxes, fees or other changes pursuant to decisions made by government authorities that may affect the price situation. In such cases, the price change shall take effect immediately upon Service Provider being informed thereof, or at the later date from which changes to NetComs s cost base or a requirement for rebalancing has effect for NetCom. 8 INVOICING AND PAYMENT 8.1 Invoicing NetCom shall invoice Service Provider monthly in arrears for services provided during the foregoing month. NetCom is however, with reasonable notice to Service Provider, entitled to decide shorter intervalls. All claims for payments incurred upon NetCom by a foreign operator with respect to traffic generated by End Customers who have utilised the foreign operator s network, NetCom shall be entitled to invoice Service Provider. Service Provider undertakes to pay the total amount charged by NetCom whether Service Provider agrees or has objections to the claim. The invoiced amount shall comprise all administration costs incurred upon NetCom in relation to calls made by End Customers utilising the foreign operator s network, and shall therefore similarly be paid notwithstanding any objections V Side 9

10 to the claim which Service Provider may have. To the extent Service Provider has a claim related to End Customer s use of the foreign operator s network, NetCom shall seek to regain this claim by counter-claiming or retain possession of this amount. In no event however, shall NetCom bear the risk of any claim Service Provider may hold as a result of End Customer s use of the foreign operator s network, entailing that Service Provider under no circumstance shall be entitled to set off or otherwise deduct any amount to be paid to NetCom based on such a claim. It is Service Provider s right and duty to receive all relevant information in connection with a possible dispute with a foreign operator. Furthermore, Service Provider has both the right and obligation to indemnify and hold NetCom harmless with regard to all costs and expenses accrued upon NetCom in connection with such a dispute, and to take all steps necessary to secure his claim. NetCom shall co-operate with Reseller to the extent necessary in order for Reseller to safeguard his claim. Objections to invoices must be made within sixty (60) days after the grounds for objections were discovered or should have been discovered. The invoice will otherwise be considered to be approved. Unless otherwise agreed between the parties in writing, the Service Provider shall invoice subscribers in its own name and for its own account. Throughout the duration of this Agreement, the Service Provider shall in this respect possess such technical solutions and equipment as necessary to secure the technical standard and professional quality expected by a service provider offering Services in NetCom s system. Any credit risks for payment by Subscribers shall rest fully upon the Service Provider. 8.2 Payment Service Provider shall make payment in NOK within 30 calendar days from the date of invoice. All payments by Service Provider to NetCom shall be made to a Norwegian bank specified by NetCom. All transaction-related costs shall be covered by the Service Provider. In the event of late payment, interest on overdue payments shall be payable by Service Provider in accordance with the Norwegian Delayed Payments Act of December No. 100 ("Forsinkelsesrenteloven"). 9 SECURITY FOR PAYMENT All payments and liabilities under this Agreement shall be secured as set out in Annex LIABILITY 10.1 Disclaimer of liability Neither Party shall be liable to the other Party for any indirect or consequential loss or damage, such as, but not limited to, loss of profit, loss of earnings, loss or corruption of data, loss of End Customers or loss suffered by a third party. V Side 10

11 10.2 Total liability The total liability for each of the Parties arising out of or in connection with this Agreement shall in no event exceed the aggregate of MNOK 5 per calendar year Liability - End Customers In no event shall NetCom be liable for any direct or indirect damages or losses suffered by End Customers. 11 FORCE MAJEURE Each Party shall be exempted from the consequence of failure to fulfil its obligations under this Agreement if such failure is attributable to circumstances of the type specified below ( Exempting Circumstances ), and said circumstances prevent, substantially hinder or substantially delay the fulfilment thereof. Exempting Circumstances shall include operational interruptions over which the Party has no control, inadequate radio communication conditions, actions of a government or other authority, newly enacted or amended laws, labour conflicts, blockades, fires, floods, natural disasters or major accidents or any other circumstance normally regarded as a force majeure event. A Party claiming exemption under the foregoing provision shall notify the other Party thereof without undue delay. If Exempting Circumstances are present for at least three (3) months in succession, either Party shall by written notice to the other Party have the right to terminate this Agreement with immediate effect. 12 CONFIDENTIALITY The Parties shall ensure that this Agreement, and any provision or portion thereof, as well as all documentation and information attributable to this Agreement or the business activities of a Party hereunder, whether of commercial or technical nature, are kept confidential, and that such confidential information are not directly or indirectly made known to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, the Parties may disclose such information i) to any government or other authority that requests the information pursuant to a law, ordinance or the like; ii) iii) to its legal or economic advisors; to a third party if it has already become public knowledge, by other means than as a result of a breach of this agreement; This provision shall remain in effect for five (5) years after this Agreement has otherwise ceased to be in effect. V Side 11

12 13 NOTIFICATION The Parties shall, subject to reservations based on requirements imposed by applicable laws or government decisions, jointly prepare the content, schedules and means of issuing public notice of this Agreement to shareholders, employees, customers, suppliers, subcontractors, stock exchanges, government authorities, the media and other third parties to whom the Parties desire to give such notice. Neither of the Parties shall issue such notification without having obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. 14 TERM OF THE AGREEMENT This Agreement shall take effect on the date of signature, and shall thereafter remain in full force and effect until it is terminated by either Party upon nine (9) months written notice. However access to the Mobile Services is subject to the following: (i) (ii) (iii) the access fee, set out in Annex 4 is paid in full; and all securities as set out in Annex 7 is established to the satisfaction of NetCom; and satisfactorily traffic forecast is submitted to NetCom. If the Service Provider has not any active End Customers within 12 months from the signature of this Agreement, NetCom is entitled to terminate the Agreement with one month notice. 15 TERMINATION Either Party may terminate this Agreement with immediate effect and without compensation by written notice to the other Party if: (i) (ii) (iii) (vi) the other Party is in material breach of an obligation under this Agreement and fails to remedy such breach within 20 days after written notice thereof giving particulars of the breach; or the other Party becomes insolvent, under administration or bankruptcy proceedings, declares itself unable to pay its debts, or if any payment restriction is made by a governmental or public authority of the country(ies) in which Service Provider operates, and such restriction prohibits the fulfilment of the payment obligations hereunder. the other Party assigns this Agreement or its rights and obligations hereunder, contradictory to Section 17 below, or change of control of the other Party is transferred to a company within the Telenor Group or to a company controlled by a company within the Telenor Group. Change of Control means a change in the ability to direct the affairs of the other Parties ownership whether by virtue of ownership of shares, contract or otherwise. V Side 12

13 The Parties shall immediately notify each other of a change in the ability to direct affairs as stated above. 16 EFFECTS OF TERMINATION OF THE AGREEMENT 16.1 "Exit ticket" In the event that Service Provider submits a termination notice for the Agreement, for any reason other than due to a breach thereof by NetCom, NetCom shall be compensated as per the following model: The average of the total invoiced amounts, excluding VAT, for the last 9 months prior to the date of the termination notice shall be calculated. Service Provider shall then, during the notice period, purchase network capacity for a total amount of at least six (6) times the average monthly invoice amount as per the foregoing. The Tariffs shall be the Tariffs in effect as from the date of the termination notice, unless otherwise agreed between the Parties. In the event that Service Provider s costs for its usage of network capacity during the notice period do not total six times the monthly invoice amount as per the foregoing paragraph, Service Provider shall nevertheless pay NetCom this amount. In the event that Service Provider s costs for usage of network capacity during the notice period exceed six times the monthly invoice amount as per the foregoing, Service Provider shall compensate NetCom for its actual usage of network capacity Effects of termination of the Agreement In the event that the Agreement ceases to be in effect pursuant to Section 15, NetCom shall, at Service Provider s written request and subject to the condition that Service Provider pledges security, makes payment in advance or in some other way that is acceptable to NetCom ensures that payment will be made, provide Service Provider with Mobile Services for a period of five (5) months from the date the request was made. The tariffs that were in effect between the Parties when notice of termination was given shall be in effect during this period. 17 ASSIGNMENT OF THIS AGREEMENT 17.1 General With the exceptions specified below, neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other Party Permissible assignments for NetCom NetCom may assign its rights and obligations under this Agreement to another company within the Telia AB Group Permissible assignments for Service Provider The restriction as per Section 17.1 does not extend to Service Provider s customer receivables, which Service Provider may assign in its sole discretion. V Side 13

14 Service Provider may assign its rights and obligations under this Agreement to one of its wholly owned subsidiaries provided that such assignment does not substantially affect or run the risk of affecting NetCom s opportunities to exercise its rights under this Agreement, and on the condition that the acquiring company can assume or in some other way obtain the necessary government permits to run the business Service Providers Group of companies Service Provider may organise its activities in any company within the company group. Company group shall be defined as in the Norwegian limited liability companies act article 1-3. In such a case Service Provider is not entitled to transfer any rights in and to this Agreement in conjunction with sale of one or more subsidiaries. Any transfer of thus Agreement is governed by Section 17.3 above. 18 CHANGE OF CONTROL NetCom reserves the right to apply the mechanism set out below in the event that a competitor of NetCom in the Norwegian market either (i) acquires enough shares or voting rights in the Service Provider to represent the majority of the shares, (ii) obtains the right to elect or dismiss a majority of the board members in the Service Provider or (iii) by shareholder agreement or otherwise obtains a controlling interest in the business of the Service Provider, or in the event that a change of control as set out in Section 18 subsection (i) through (iii) above takes place and will have the effect that the customers of Service Provider will be transferred to another mobile network not owned by NetCom. A change of control as set out above shall be notified NetCom immediately and NetCom shall have the right within four weeks as of receiving such notice to notify Service Provider of which of its options it will exercise. NetCom shall if any of the above situations occur be entitled to: (i) having the mobile subscriber of the Service Provider transferred to NetCom or a party designated by NetCom, at market value. Market value shall be determined either by documenting a binding offer from a third party having the financial ability to raise the purchase price in question or by an independent audit firm appointed by the Parties. If the Parties do not agree on a firm such firm shall be appointed by the chairman of Norske Statsautoriserte Revisorers Forening; or (ii) accept the change of control subject to the new owner entering into a service provider agreement with NetCom; or (iii) accept the change of control subject to Service Provider paying NetCom 60% of the last twelve months traffic volume purchased from NetCom. V Side 14

15 19 ENTIRE AGREEMENT This Agreement comprises the sole agreement between the Parties regarding the subject matter regulated in this Agreement, and shall take precedence over all prior written or verbal negotiations, agreements or the like between the Parties regarding this issue. Changes in and additions to this Agreement shall be made in writing and signed by both Parties, and incorporated in Annex 8. The addition of new signed and dated pages is sufficient in connection with price changes pursuant to Section 7.2 above. Changes to Annex 5 and 6 is done electronically by NetCom and put into the relevant Annex, with Service Providers confirmation sent by to NetCom. 20 INVALIDITY OF PROVISIONS In the event that any provision of this Agreement or portion thereof should be considered invalid, this shall not entail that this Agreement shall be considered invalid in its entirety, but shall instead entail, to the extent that the invalidity substantially affects either Party s benefit from or performance pursuant to this Agreement, that the Agreement shall be adjusted in such away that it becomes legal. 21 ORDER OF PRECEDENCE In the event of an inconsistency between the Agreement Document and the Appendices, the inconsistency shall be resolved by giving precedence in the following order: Level 1: The Agreement Document Level 2: The Annexes V Side 15

16 22 SUSPENSION OF MOBILE SERVICES Notwithstanding anything to the contrary in this Agreement, NetCom may without liability suspend or terminate all or any of its Mobile Services provided to Service Provider to all or any End Customers, appropriately having regard to the prevailing circumstances where such suspension is reasonably motivated in NetCom's business interests, and where it under similar circumstances would have suspended or terminated those services to its own mobile subscribers, including but not limited to: (i) (ii) (iii) (iv) (v) End Customers using equipment which is defective or not complying with applicable Norwegian law; or End Customers causing any technical or other problems in NetCom's network or to NetComs end customers; or suspected fraudulent or unauthorized use - e.g. unauthorized use of GSMgateways, SMS-services, content provider services etc ; or authentication of the End Customers not being possible; or maintenance or enhancement of NetCom's network subject to prior reasonable notice in writing. In case of a total suspension of Mobile Services, NetCom shall provide Service Provider with a notice hereof in writing or by , as soon as reasonable possible. NetCom shall use its best effort to provide such notice prior to the suspension. 23 DISPUTES - GOVERNING LAW This Agreement shall be governed by and be construed in accordance with the laws of Norway. This Agreement is written in the English language. However, English legal language (i.e. legal terms and expressions) shall refer to the legal concepts applicable for Norway. Any dispute arising in connection with or as a result of this Agreement shall be finally settled by the ordinary courts. The parties submit to the exclusive jurisdiction of the Norwegian courts with Oslo City Court as venue. 24 NOTIFICATION AND CONTACT PERSONS All notifications and other communications covered by this Agreement (including changes, permits and the like as per this Agreement) shall be made in writing and faxed, mailed or delivered to the other Party. 25 MISCELLANEOUS The headings in this Agreement are for the convenience only, and shall in no way limit or otherwise affect the Parties intentions or interpretation of any provisions of this Agreement. V Side 16

17 Nothing in this Agreement shall be considered to entail a partnership between the Parties in such a way that the Parties are granted a right to legally bind one another visà-vis End Customers or other third parties. Nothing in this Agreement is expressly or implicitly intended to infringe the rights of any party other than the Parties to this Agreement. oo00oo This Agreement has been executed in two originals of which the Parties have retained one each. Date: [ ] Date: [ ] NetCom as Service Provider V Side 17