Issue Contents for Reference Offer for Wholesale Roaming Resale Access according to Art. 3 (5) January, 1st, 2013

Transcription

1 Issue Contents for Reference Offer for Wholesale Roaming Resale Access according to Art. 3 (5) January, 1st, Since 1st of July 2012 the Article 3 of the Roaming Regulation has been effective, requiring a MNO to meet all reasonable requests to provide undertakings serving customers within EU/EEA with access to regulated roaming services. 1. Summary and Background - As from 1st July 2012, the roaming aspects of existing agreements between MNOs and MVNOs/Resellers (to the extent that they deal with roaming) fall within the scope of Article 3. - Beyond changes within existing roaming agreements and other wholesale contracts, MNOs shall offer the required services on the basis of Reference Offers for Access Seekers requesting Direct Wholesale Roaming Access and Wholesale Roaming Resale Access, that has to be published on January, 1st, 2013 and has to be in line with the Guidelines published by BEREC on September, 27th, This term sheet describes the main obligations and rights of MNOs and Access Seekers as a basis for the provision of Wholesale Roaming Resale Access ( Agreement ) between T-Mobile Netherlands BV ( T-Mobile ) and XXXX ( Access Seeker ) which will be subject to negotiation between T-Mobile and Access Seeker: - Access Seeker s objective is to offer regulated roaming services. A roaming customer is identified by EU numbering resources assigned to the mobile service. - Access Seeker is entitled by Art. 3 (1) to raise reasonable requests to get access to T-Mobile s regulated roaming services. 2. Subject and Scope - T-Mobile will provide Access Seeker with non-discriminatory access to these regulated roaming services compliant to Art. 3 in accordance with the conditions set out in BEREC s guidelines and in this term sheet. Moreover, T-Mobile will provide additional services required by BEREC guideline 13 (b) (c) which are not regulated but required to provide a roaming proposition (esp. termination of incoming calls and outgoing SMS messages) - Regulated roaming services are mobile voice (pre- and postpaid), SMS and data services according to the definitions in Art. 2 (2) (h), (k) and (m) of the Roaming Regulation. - Further to those services that are regulated or otherwise required by BEREC, T-Mobile may, in its own discretion, offer additional services. - For the avoidance of doubt, Access Seeker shall only be allowed to resell the regulated services provided under the Wholesale Roaming Resale in accordance with the Roaming Regulation and the BEREC guideline Definitions - Access Seeker is considered to be any undertaking which is entitled, under the law of the - 1 -

2 Netherlands, to provide roaming services to customers in the Netherlands and thus enjoys the right to Wholesale Roaming Access under the terms of Article 3 of the Roaming Regulation. - Roaming Customer is considered as an end-customer from a mobile operator operating a terrestrial public mobile communication network and situated in an EU (EEA if applicable) Member State, identified by a EU MSISDN assigned to its subscription (defined in Art. 2 (2) (g)) - Regulated Roaming Call means a mobile voice telephony call made by a roaming customer, originating on a visited network and terminating on a public communications network within the EU/EEA or received by a roaming customer, originating on a public communications network within the EU/EEA and terminating on a visited network (defined in Art. 2 (2) (h)) - Regulated Roaming SMS message means an SMS message sent by a roaming customer, originating on a visited network and terminating on a public communications network within the EU/EEA or received by a roaming customer, originating on a public communications network within the EU/EEA and terminating on a visited network (defined in Art. 2 (2) (i)). - Regulated Data Roaming service means a roaming service enabling the use of packet switched data communications by a roaming customer by means of his mobile device while it is connected to a visited network. A regulated data roaming service does not include the transmission or receipt of regulated roaming calls or SMS messages, but does include the transmission and receipt of MMS messages; - Wholesale Roaming Access Resale Agreement ( Agreement ) describes the final Agreement Access Seeker and T-Mobile concludes for the provision of Wholesale Roaming Resale Access. The Agreement will be based on the Reference Offer and provided within four weeks after initial access request by the Access Seeker - Hosting Agreement describes the agreement Parties has entered into or will enter into in order to set-out the terms and conditions for the hosting of Access Seeker as Wholesale Partner for the provision of national and/or international resale of T-Mobile s telecommunication services. Such Hosting Agreement provides the necessary basis for a wholesale roaming resale access. - Domestic Services are services such as national/domestic Voice, SMS or Data that are (according to national rules or voluntarily) provided to an Access Seeker to enable Access Seeker to resell these services to customers in the respective country. 4. Contract Duration / Timeline - This Agreement will come into effect for an indefinite period of time with a minimum term of 1 (one) year (Initial Contract Period). - The contract duration starts once the Agreement has been implemented in T-Mobile s systems and readiness is announced by writing to Access Seeker. - Unless Access Seeker has caused delays, the implementation of Access Seeker s request for Wholesale Roaming Resale Access shall be done within three months after signature of the - 2 -

3 Agreement. 5. Termination (extraordinary, consequences) - Without prejudice to any of its other rights and obligations, each party may, after the Initial Contract Period, at its own discretion terminate the Agreement with a [six] months notice period (and with immediate effect (without any further notice periods) by notifying the other party by registered letter, if one of the following events occur in relation to that other party: - the other party ceases to exist or dissolves; - the other party's business discontinues; - the other party is declared bankrupt, or is granted suspension of payments (save for a refinancing) or the other party wholly or partly, loses the free control or disposal of a substantial part of its assets in any other way provided the loss of these assets would reasonably effect the ability of the other party to perform its obligations under this Agreement; - the other party offers its creditors a composition outside a bankruptcy or suspension of payments ; - the other party fails to perform a material obligation under the Agreement and this breach has not been remedied within 30 days or any other reasonable timelines set, after the terminating party has given it notice of default by registered letter; - the other party fails to pay its invoices within defined payment term in two following months or three times within a 12 month period. - the other party fails to support in preventing or mitigating fraud or any respective obligation as further defined later in article 19 of this Term Sheet. - an event of force majeure as defined in article 26 of this Term Sheet, has not ended within 2 months after the affected party has notified the other party thereof. - Access Seeker will get informed within two weeks after its request about all necessary information to be provided to T-Mobile in order to enable the further processing of its request. - Delays in providing such information will not count towards the timeline described in article 4 of this Term Sheet. 6. Exchange of Information 7. Service provided at regulated rates - Among others, T-Mobile request the following information to be provided by Access Seeker: - Evidence that Access Seeker is eligible to benefit from Art.3 of the Roaming Regulation, especially to provide roaming services to roaming customers in the respective EU (EEA if applicable) Member State(s). - Technical information (interfaces and protocols) that provide information on the compatibility with the services offered under this Term Sheet. - T- Mobile shall provide Access Seeker end-to-end delivery of Regulated Roaming Calls, SMS and Data. This comprises in detail the delivery of: - mobile originated roaming calls generated by the Access Seeker s Roaming Customer from a EU/EEA roaming network (VPMN) to - 3 -

4 EU/EEA destinations excluding premium numbers. - mobile originated roaming SMS generated by the Access Seeker s Roaming Customer from a EU/EEA roaming network (VPMN) to EU/EEA destinations excluding premium numbers. - mobile roaming data traffic generated by the Access Seeker s Roaming Customer from a EU/EEA roaming network (VPMN) to a packet data network either via a GGSN of T-Mobile or, up on T-Mobile s decision, via a GGSN of the VPMN. - T-Mobile shall provide access to relevant interfaces, protocols or relevant operational support systems by T-Mobile in order to enable Access Seeker to carry out for itself the necessary retail functions towards its end-customers. These network elements are described in more detail in a separate Annex to the Agreement. - T- Mobile shall provide Access Seeker end-to-end delivery of mobile terminated calls from a national or international network to the roaming network (VPMN) where the Access Seeker s Roaming Customer is located. - T- Mobile shall provide Access Seeker end-to-end delivery of mobile terminated SMS messages from a national or international network to the roaming network (VPMN) where the Access Seeker s Roaming Customer is located. 8. Services provided at nonregulated rates - T- Mobile shall provide Access Seeker end-to-end delivery of mobile originated roaming calls generated by the Access Seeker s Roaming Customer from a roaming network (VPMN) to non- EU/EEA destinations. - T- Mobile shall provide Access Seeker end-to-end delivery of mobile originated roaming SMS messages generated by the Access Seeker s Roaming Customer from a roaming network (VPMN) to non-eu/eea destinations. - T- Mobile shall provide Access Seeker end-to-end delivery of mobile originated roaming calls/sms to premium numbers generated by the Access Seeker s Roaming Customer. 9. Retail Functions Parties have the opportunity to discuss the provisioning of additional services by T-Mobile during contract negotiations. In accordance with Art.3 of the Roaming Regulation and subject to the Agreement between T- Mobile and Access Seeker, T-Mobile will offer the following services to Access Seeker: 10. Responsibilities T- Mobile - Provision of roaming services described in sections 7, 8, 9 - Access to regular information on end-user usage through the provision of call data records (CDRs) - Support or access to the following regular wholesale functions and facilities provided by T

5 Mobile: - Negotiation, implementation and management of its roaming Relationships - Signaling - Authentication - Data clearing - Wholesale Billing - Interconnect - Fraud handling with its roaming partners (not towards Access Seeker s end-customers) - Provisioning - Management of Global Roaming Exchange/IP Exchange - T-Mobile will ensure that an appropriately staffed and skilled team will be available for the implementation and management of the Agreement. - T-Mobile will ensure to provide a comprehensive description of the procedure to interconnect. - T-Mobile to provide support to Access Seeker with regard to Legal Interception as further described in this Term Sheet. - For the avoidance of doubt, under this Term Sheet T-Mobile will provide Access Seekers only access to herein describe regulated and unregulated roaming services. Access to Domestic Services in the Netherlands (Domestic Services) is subject to a separate commercial agreement as those services are not within the scope of the obligation of Art. 3 of the Roaming Regulation. - Access Seeker shall provide mobile communications services to EU/EEA end-customers at its own expense, on its own behalf, at its own risk, and under its own trademarks, logos and brands on the Dutch retail market. - Access Seeker shall use its own platform for billing purposes. 11. Responsibilities Access Seeker (MNO, MVNO or reseller) - Access Seeker shall be responsible for distribution, provisioning, retail price setting, sales and credit check, high-spend, fraud management (as further defined in this Term Sheet), and compliance with relevant laws, regulation or other obligations provided by relevant authorities for instance on legal interception measures. - Access Seeker shall be fully responsible for 1st and 2nd line customer care, and marketing of its services. - Access Seeker shall provide T-Mobile with all information relevant for the correct and timely implementation of the Wholesale Roaming Resale Access. - Access Seeker will ensure that an appropriately staffed and skilled team will be available for the implementation and management of the Agreement. - Access Seeker shall only use Hard- and Software that is compliant with T-Mobile s requirements - 5 -

6 as further described in the Agreement. Access Seeker shall comply with the measures agreed to avoid negative impact on T-Mobile s systems and agree to the extend of information exchange necessary to achieve this goal, especially in case of failures at Access Seeker s own systems that may effect the systems of T-Mobile. - Access Seeker shall provide T-Mobile with a reasonable initial payment guarantee upon request (e.g. bank guarantee). The value of the payment guarantee shall be equal to the total expected average monthly fees charged to Access Seeker by T-Mobile in a period of the [3] (three) months. - More detailed responsibilities shall be agreed in the Agreement. General - All tariffs are in Euros (or local currency Art.1.6 roaming regulation) and exclusive of applicable VAT. - Prices are per minute, item (e.g. SMS), Megabyte (MB) in case of data, no peak/off-peak differentiation, per 30/1 second charging for all traffic on the T-Mobile Network according to Art.7&8 of the Regulation. - Invoicing shall be on a monthly basis with a payment term of 30 days. Roaming Charges 12. Pricing & Pricing Structure - The IOTs charged by T-Mobile in accordance with Art.7, 9 and 12 of Roaming Regulation apply only for Mobile Originated (MO) Voice, SMS and Data roaming. - The applicable regulated roaming charges according to Art.7, 9 and 12 of the Roaming Regulation are: Data 25ct 15ct 5ct Voice (MO) 14ct 10ct 5ct SMS (MO) 3ct 2ct 2ct - Mobile Terminated (MT) Voice or calls to special numbers such as calls to Value Added Services (VAS) or Premium Rate Services (PRS) are not part of the regulated IOT. This also applies to all other Services provided by T-Mobile to the Access Seeker, being described in Clause 7 and 8 of this Term Sheet. - The termination of incoming SMS will be free of charge to the Access Seeker. 13. Wholesale - T-Mobile shall invoice Access Seeker for the Roaming Access provided on a monthly basis - 6 -

7 Billing before the end of the following month according to the terms and conditions set out in this Term Sheet. Each invoice shall relate to a period commencing on the first day of the month and ending on the last day of that month, except for any corrections which can be invoiced up and until [four] months after the relevant billing period which will be invoiced via the regular invoice procedure. (If T-Mobile did not send a correction invoice before the expiry of this [four] months period, T-Mobile is no longer entitled to any corrections for the relevant billing period.) - All invoices must be paid before or on the due date. All charges and other sums due by Access Seeker under this Agreement and related to the normal operation of the services shall be transferred into the bank account of T-Mobile, as specified on the invoice. - In the event that Access Seeker fails to pay any invoices in full before or on the due date, T- Mobile shall be entitled to charge and receive statutory interest in respect of any such amount outstanding at the statutory rate in accordance with the Dutch Civil Code, and reasonable costs of collecting outstanding amounts. - In case Access Seeker disagrees with the invoice sent by T-Mobile as a result of a lack of accurate volumes used to calculate the invoice ( Accuracy Dispute ), Access Seeker shall inform T-Mobile within 2 (two) months after receipt of the invoice of such dispute and the reasons of such dispute by means of a Dispute Notice. If the two months period mentioned in this clause has expired and T-Mobile did not receive a Dispute Notice within these two months, Access Seeker and T-Mobile shall be deemed to have accepted T-Mobile s invoice. - For the avoidance of doubt aforementioned process is relevant only for the wholesale billing and accordingly Access Seeker s end-customers may not assert any claims in relation to T-Mobile. Access Seeker s end-customers that will assert claims towards T-Mobile shall be referred to Access Seeker being their contractual partner. Access Seeker is not permitted to publish any correspondence containing T-Mobile contact data or to inform Access Seeker s end-customer about them. - However, T-Mobile will give Access Seeker reasonable support in solving disputes with Access Seeker s end-customers if for the solution finding T-Mobile s cooperation is required. Therefore Access Seeker will provide T-Mobile with all necessary information such as MSISDN of complaining customer, reason for complaint or time to which complain relates. - A detailed description of complaint processing as well as further details such as payment terms will be defined in the Agreement. 14. Other Interfaces and used (information) systems - Access Seeker will obtain and maintain equipment that corresponds to T-Mobile s specifications and fulfill the according technical prerequisites for connecting to T-Mobile s systems. In this context, hardware- and software-compatibility as well as compliance with usual security standards defined by T-Mobile have to be secured in particular. Unusual security standards are those standards which prevent unauthorized access but allow Access Seeker for authorized access to information systems

8 - T-Mobile will provide detailed specifications in the Agreement. 15. Transaction Data 16. Dormancy Rule - T-Mobile processes and transmits transaction data for the usage of the services (GSM Voice & SMS, GPRS and Value Added Services) to enable Access Seeker the billing of its end-customers accordingly. The transmitted data shall be the basis for T-Mobile s Wholesale Invoice to Access Seeker. - These transaction data can be either retrieved by Access Seeker or are sent by T-Mobile. Both parties shall agree on a feasible procedure. - Both parties agree to monitor the percentage of inactive customers jointly and Access Seeker commits to execute measures to limit inactivity during a period as defined in the Hosting Agreement. - Access Seeker agrees that unused SIM cards will be de-activated according to the rules set-out further in the Hosting Agreement. - Access Seeker to address its request for access to the following address: roaming@tmobile.nl 17. Contact Persons & Communication - Access Seeker will receive a confirmation about its request as well as name and contact details of a T-Mobile employee who is further processing Access Seeker s request. - Access Seeker also to provide name and contact details of an employee being responsible for further communication during the processing of Access Seeker s request. - Parties agree to cooperate in avoiding fraudulent behavior particular to monitor Access Seekers end-customers usage on fraud potential. 18. Fraud Prevention - Fraudulent behavior is agreed to be given particularly (but not exclusively) - in case SIM-Cards are used by Access Seeker s end-customers to offer telecommunication services, switching or interconnection services to third parties; and/or - in case SIM-Cards are used by Access Seeker s end-customers in GSM Gateways or in so-called SIM-Servers for purposes of routing telecommunication traffic (so-called SIM-Boxing ); and/or - in case SIM-Cards are used by Access Seeker s end-customers to automatically set-up permanent connections not for purposes of personal communication but for commercial reasons (to generate interconnection fees). - The party identifying any fraudulent use will inform the other party without undue delay. In case of detected fraudulent use, Access Seeker shall upon T-Mobile s request deactivate the respective end-customer s SIM-Card immediately

9 - T-Mobile reserves the right to deactivate fraudulent used SIM-Cards itself for reasons of minimizing commercial losses and/or any adverse effects for the network availability of the Parties due to such fraudulent use. - T-Mobile agrees to provide the Access Seeker with all relevant information on faults or planned maintenances as far as T-Mobile itself is informed by its roaming partners. - As T-Mobile has agreed roaming agreements according to the standard GSMA documents, and SLAs are not used therein, T-Mobile cannot commit to dedicated performance KPIs as part of SLAs. - However, T-Mobile commits to treat Access Seeker in a non-discriminatory way and Access Seeker s end-customers will receive the same services according to the best effort principle that T-Mobile s own end-customers receive in the roaming partner s network. 19. Service Quality, Faults, Maintenance and SLAs - T-Mobile commits to not discriminate between its own end-customers and Access Seeker s end-customers in relation to the service quality and coverage on its roaming partner s network and/or the fault detection, fault handling and restoration of any incidents compared to T- Mobile s own end-customers, provided that these actions are under T-Mobile s control. Discrimination will only be allowed in case of fraudulent behavior of Access Seeker s endcustomers as described in this term sheet. - T-Mobile will provide Access Seeker with the same information on operational performance of T- Mobile s roaming partners networks as T-Mobile provides to its other wholesale partners. - Parties will negotiate in good faith on compensation in case T-Mobile fails to meet any of the according obligations and act in an unjustified discriminatory way. - Where T-Mobile has control over processes related to service ordering, provisioning and delivery to customers of the access seeker, T-Mobile will not discriminate these customers versus T- Mobile customers. T-Mobile and Access Seeker will negotiate in good faith to agree on reliable processes and timelines associated with ordering, provisioning and delivery where appropriate. 20. Legal Interception 22. Security and Data Privacy - T-Mobile will support Access Seeker to respond to requests by relevant authorities if, due to the nature of the wholesale relationship, Access Seeker is (technically) not able to provide requested information by itself (e.g. Phone Tapping). Since the customer ownership and relationship remains at Access Seeker, T-Mobile will however not provide any personal data of end-customers or any data on end-customers usage patterns. - Each party shall comply with the applicable data protection and other (relevant) laws and regulations of telecommunication services of the Netherlands and shall indemnify and hold harmless the other Part from and against all costs or expenses of any kind arising out of any claim or demand brought by any person, entity or authority as result of any breach or alleged breach of such data protection laws and telecommunications laws and regulations

10 23. New Roaming Agreements - T-Mobile will at its own discretion conclude or terminate international roaming agreements with other mobile network operators. - In case of changes to the roaming coverage of T-Mobile, T-Mobile will inform Access Seekers without undue delay. - The Agreement and all matters arising from or connected with it shall be governed by Dutch law. 24. Governing Law and dispute resolution - All disputes between the Parties in regard to the obligations or their interpretation resulting from Regulation EU 531/2012 shall be solved by the dispute resolution procedures laid down in Articles 20 and 21 of the Framework Directive. - For all other disputes arising out of or from this Agreement shall be governed by the Dutch law and may, in so far as they cannot be settled amicably, be presented to the competent court in The Hague. - This term sheet will be updated at least every year in order to update regulated prices. - This term sheet will be updated from time to time to ensure compliance with a relevant decision of OPTA or a relevant update of the BEREC Guidelines or other relevant documentation. 25. Miscellaneous - This term sheet will be updated from time to time to ensure consistency with the offered service - especially in case service provisioning will require new methods for or modifications of the Wholesale Roaming Access resulting in potential implications to T-Mobile s network elements or facilities. - As of the release date of an updated version of this term sheet all access requests will be governed by the updated version. In case of pending access requests T-Mobile and Access Seeker will negotiate in good faith to agree on which elements of the updated version apply. Liability 26. Force Majeure, Liability - The parties are only liable to each other for damage suffered by the other party as a result of an attributable shortcoming in the execution of this Agreement, if and in so far as it concerns: - damage to property, whereby the obligation to reimburse the damage is limited to a maximum of 900,000 (nine hundred thousand euro) per event and 2,000,000 (two million euro) per calendar year; - damage as a result of death or physical injury, whereby the obligation to reimburse the damage is restricted to a maximum of 900,000 (nine hundred thousand euro) per event and (two million euro) per calendar year; - The parties are under no circumstances liable for indirect or consequential damage, such as, though not limited to, financial loss, loss of income, loss of profits, savings that were not achieved or damage as a result of disruptions in the service

11 - The restriction in the liability as referred to in paragraph 1 do not apply if the attributable damage is the result of an intentional act or gross negligence on the part of the party and/or its employees who caused the damage. Force Majeure - Without prejudice to the general principles on force majeure as provided for in the Dutch Civil Code, performance of this Agreement shall be suspended in case circumstances arise beyond a party s control, that prevent a party from properly performing its obligations under this Agreement. The party seeking to be excused performance on the grounds of force majeure shall give notice thereof to the other party as soon as possible, specifying the nature of the force majeure and the anticipated duration thereof. Such party shall make reasonable effort to minimise or eliminate the hindrance or condition created by the Force Majeure event. - Obligations to pay due amounts under this Agreement shall not be suspended on the grounds of force majeure