Agreement Terms: Payments, Termination, and Confidentiality, Lecture notes of Voice

Download Agreement Terms: Payments, Termination, and Confidentiality and more Lecture notes Voice in PDF only on Docsity! Subject to Contract/Contract Denied 1 REFERENCE INTERCONNECT OFFER Between: Tesco Mobile Ireland Limited and [To be inserted] Subject to Contract/Contract Denied 2 THIS AGREEMENT is made on day of 2017 BETWEEN Tesco Mobile Ireland Limited (registration number 421281) having its registered office at Gresham House, Marine Road, Dun Laoghaire, Co Dublin (“TMI”) AND [To be inserted] (”the Operator”), Each being a Party and together the Parties, and each shall include its respective Authorised Subsidiaries to which Services are provided under this Agreement. WHEREAS (A) TMI is authorised under Irish Statutory Instrument 335 of 2011 (Authorisation Regulations 2011) to operate its own respective public telecommunication network and provide public network, voice telephony and other telecommunications services in Ireland. (B) The Operator is authorised under Irish Statutory Instrument 335 of 2011 (Authorisation Regulations 2011) to operate its own respective public telecommunication network and provide public network, voice telephony and other telecommunications services in Ireland. (C) The Parties agree with the terms and conditions of this Agreement and any Supplemental Agreement or commercial agreement governed by the terms of this Agreement. 1. DEFINTIONS 1.1 The following words and expressions shall, except where the context otherwise specifies, have the following meanings; “Affiliate” Any holding company or subsidiary company as defined in sections 7 and 8 of the Companies Act 2014 as amended. “Artificial Inflation of Traffic (AIT)” any situation where Calls: (a) are made, generated, stimulated, and/or prolonged for the direct or indirect benefit of any entity (including a natural person) operating, hosting or otherwise connected with a telecommunication service as a result of any activity by or on behalf of such entity; and (b) result in a calling pattern which is disproportionate to the overall amount, duration and/or extent of Calls which would be expected from: i. a good faith usage; or ii. an acceptable and reasonable commercial practice relating to the operation of telecommunications systems. Subject to Contract/Contract Denied 5 “Paying Party” The Party that pays or is held to pay for the Charges under the Agreement. “Point of Interconnection/POI” A physical point where the Networks of both Parties are interconnected for the provision of service(s) as specified in Annex B. The POI is the boundary between the TMI and Customer domains of responsibility. “Ready for Service Date” The date agreed between the Parties by which the Service(s) will be ready for use to be no later than an agreed date. “Receiving Party” A Party who received any information, a notice and/or invoice from the other Party in relation to the Agreement. “Service Description” Means the details of each Service provided under this Interconnect Agreement, as set out in Annex A. “Service(s)” The services to be provided between the Parties as is more fully set out in Annex A. “SIP” IP-based interconnect paths. “SIP-I” As per “SIP”. “Service Plan” means the mutually agreed document (that is subject to change from time to time) setting out the technical configurations and the standards and methods of operation to be used by the Parties. “VAT” Value Added Tax. 2 SCOPE OF THE AGREEMENT 2.1 This agreement shall consist of these main body terms and conditions, and Annexes A, B and C as set out herein, and together with any amendments thereof, shall be hereinafter referred to as “the Agreement” or “this Agreement”. In the event of any inconsistencies between them, the order of precedence shall (unless expressly stated to the contrary) be as follows: (a) Annexes A, B and C. (b) Main body of this Agreement 2.2 The technical configurations and the standards and methods of operation to be used by the Parties in the provision of Services hereunder shall be agreed upon by the Parties and described in an agreed Service Plan. However, where and as far as the Parties have not described the technical configurations and the standards and methods of operation in writing, the Parties shall apply technical standards conforming to the relevant recommendations of the ITU/T (International Telecommunication Union Telecommunication Standardisation Sector). It is hereby expressly agreed that the Service Plan is not legally binding. However, TMI and the Operator share operational responsibility for keeping the Service Plan up-to-date. 2.3 The Parties agree to provide and maintain Services as set forth in Annex B and any applicable Supplemental Agreement governed by the terms of this Agreement, between the TMI Network and the Operator Network in accordance with the terms and conditions of this Agreement. Subject to Contract/Contract Denied 6 2.4 For the avoidance of doubt, this agreement applies to Authorised Subsidiaries of the Parties (unless otherwise specified in an Supplemental Agreement governed by the terms of this Agreement), however only in respect of those telecommunications or other services provided by either Party to the other, or between the Parties, as listed in the Annexes hereto (as may be amended by written agreement from time to time). This Agreement is independent of, and its scope does not include, any other agreement under which any telecommunications or other services are provided by either Party to any customer, unless that other agreement expressly references the terms of this Agreement. 2.5 The Services covered by this Agreement shall be provided through access to IP Interconnect ports located on the TMI network. 2.6 For operational purposes, technical and operating personnel will use English as the working language. 3 TERM AND TERMINATION 3.1 This Agreement shall enter in to force on the Commencement Date and shall continue for a period of 24 months (“Term”). After the Term, this Agreement shall continue on a rolling monthly basis until terminated by either Party giving not less than (3) three months written notice, such notice not to issue before the expiry of the Term or initial period of any Supplemental Agreement that is governed by the terms of this Agreement. For the avoidance of doubt, termination of this Agreement for any reason shall not result in termination of any Supplemental Agreement governed by the terms of this Agreement. 3.2 Either Party may, upon written notice to the other, terminate the Agreement in the following circumstances: a) forthwith upon notice in writing, if the other Party shall be unable to pay its debts within the meaning of section 570 of the Companies Act, 2014 or have an examiner or receiver appointed over the whole or any part of its assets or go into liquidation (whether compulsory or voluntary) otherwise than for the purposes of amalgamation or reconstruction or shall make any agreement with its creditors or have any form of execution or distress levied upon its assets or cease to carry on business; b) the expiry of 30 days from the date of service of written notice from one Party specifying a breach by the other Party of a material obligation and requiring that the breach is remedied (if capable of remedy), provided that the breach is not remedied during such period; c) the expiry of either Party’s Licence to run its Network, or where a renewal of such Licence has not been granted in a timely manner. 3.3 If either Party delays in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach. If either Party waives a breach of this Agreement that waiver is limited to that particular breach only. 3.4 Notwithstanding any other provision of the Agreement, if a Party fails to pay a net balance due in accordance with the terms of the Agreement, the invoicing Party reserves the right forthwith upon notice in writing (such notice to be no less than fourteen days advance notice) to: a) restrict or suspend the Service and the non-breaching Party shall be released from its obligation under this Agreement until any balance due is paid without affecting the non-breaching Party’s right to continue to send traffic to the defaulting Party; and/or b) handle only calls that are billed to its own Customers, retain all revenue, and continue such practice until payment of any outstanding balance due has been paid; and/or Subject to Contract/Contract Denied 7 c) terminate this Agreement without liability or right to compensation for the defaulting Party. 3.5 Upon the termination of this Agreement each Party shall refund to the other a fair and equitable proportion of those sums paid to the other Party under this Agreement which are periodic in nature and have been paid for a period extending beyond the date of termination in order to balance any over-payment. 4. INTERCONNECT SERVICES AND ADDITIONAL SERVICES 4.1 The Services shall consist of the Services set out in Annex B, which are provided by TMI to the Operator Or as otherwise amended by the Parties from time to time as set out in Section 4.8. 4.2 The Parties agree to provide the above Services to each other in accordance with: (a) the terms and conditions herein; and (b) any applicable law or regulation or any direction or decision of any appropriate regulatory authority. 4.3 Each Party shall undertake to ensure that: (a) they will not use or permit others to use any Interconnect Service for any improper or unlawful purpose; and (b) they will hold at all relevant times for the duration of the Agreement all licences which are appropriate or necessary in order for the Interconnect Services to be provided and will not cause the other Party to breach any such licence. 4.4 Each Party agrees that they should not hand over or convey any calls destined for a service for which there is no agreement between the Parties. 4.5 The details of how interconnection between the TMI Network and the Operator’s Network shall be achieved, and the design and planning of the Interconnect Network are set out in the Technical Plan. The Service Plan shall be continuously reviewed and updated as necessary by the Parties as agreed between the Parties. Network alterations and data reconfigurations as is necessary for the access routing and charging of Calls may be requested by either Party in accordance with the processes set out in the Service Plan. 4.6 The procedures for the initial installation and testing of the Interconnect Network as well as for the continued operation and maintenance thereof shall be governed by the Service Plan. 4.7 Separate Interconnect Paths shall be provided to carry the Call traffic for each Party. Each Party shall be wholly responsible for forecasting its capacity requirement and the Parties have a responsibility for meeting the forecast requirements. Switch port capacity may only be increased in units of 1 x SIP Channel or multiples thereof. 4.8 Additional services as may be agreed by the Parties from time to time may be provided on the Interconnect Network and the details of such services shall be provided in new Service Schedules to be inserted in Annex B of the Agreement, on mutual written agreement of the Parties. 5 WAYLEAVES AND EQUIPMENT RECOVERY 5.1 Upon termination of this Agreement, each Party shall be entitled, after reasonable prior notice in writing to the other Party, to enter the premises of such other Party for the purposes of carrying out, under the reasonable control and guidance of the Party owning or using the respective premises, Subject to Contract/Contract Denied 10 best endeavours to resolve the dispute through consultations within 14 days after notification. 9.2 The Parties shall aim to reach an agreement on any Invoice Discrepancy at Level I or Level II of the Dispute Resolution procedure set forth in Clause 10. The Parties may at any time agree on a time schedule modifying or replacing the time schedule provided for under Clause 10. The Paying Party may at any time withdraw its notification of an Invoice Discrepancy. 9.3 If a dispute is investigated and resolved in favour of the Paying Party then no late payment interest shall be applied. In the event the dispute is resolved in favour of the Invoicing Party then the Invoicing Party reserve the right to apply late payment interest from the date such payment was originally due until paid. 10 DISPUTE RESOLUTION 10.1 The Parties will use all reasonable efforts to amicably resolve any dispute. The Parties will, at a minimum, use the following procedure in the event a dispute arises with respect to any aspect of this Agreement. Upon written notification by one Party to the other that a dispute exists, working level managers of the respective Parties will attempt in good faith to work out a resolution within thirty (30) days following the day of written notification of a dispute. If an agreement cannot be reached by the end of this period, the Parties shall prepare a document containing information that is designed to assist resolution of the dispute containing what has been agreed and what remains in dispute between them. No later than two weeks thereafter, or at some other time as mutually agreed by the Parties, representatives of the Parties at Director level or above shall meet to further attempt to resolve the matter or to agree on a course of action to resolve the matter. Such course of action may include use of formal dispute resolution processes, including but not limited to non- binding mediation or binding or non-binding arbitration. In the event that the Parties are unable to resolve the matter or agree on a course of action at this executive level within thirty (30) days, either Party shall have the right to pursue legal or equitable remedies as it sees fit. Nothing contained herein shall preclude either Party from seeking equitable relief at any time in a court having jurisdiction under the terms of this Agreement in the event that a risk of imminent harm to that Party exists and no appropriate remedy for such harm exists under the Agreement. 11 NETWORK SAFETY AND PROTECTION Each Party is responsible for the safe operation of its Network and shall take all reasonable and necessary steps in its operation and implementation of this Agreement to ensure that its network does not: - Endanger the safety or health of employees, contractors, agents or customers of the other Party; or - Damage, interfere with or cause any deterioration on the operation of the other Party’s Network. 12 NUMBERING / CLI / PREMIUM RATE AND SHARED REVENUE SERVICES 12.1 Each Party shall use numbers in accordance with the Irish National Numbering Scheme. 12.2 Each Party must comply at all times with the Irish numbering obligations (General Conditions and Users Rights) including as outlined by ComReg from time to time. In particular the use of the network CLI and presentation CLI fields must be compliant with the Irish regulations at all times. If either Party detects Calls that contravene these regulations, originated from the other Party’s network, it shall be entitled not to convey those Calls. 12.3 Where CLI is passed for presentation purposes, the presentation shall comply with all the requirements of the applicable data protection legislation and the requirements of individual Subject to Contract/Contract Denied 11 customers of the Parties. i.e. where the caller has requested for the CLI to be withheld from presentation to the called customer, this request must be adhered to. 12.4 A Party who’s Network receives CLI shall only use the CLI for the following purposes: 12.4.1 the management of traffic; 12.4.2 the management of billing; 12.4.3 to the extent that it relates to the management of traffic or billing agreed administrative use in accordance with accepted industry practice from time to time (which includes, at the date of this Agreement, Call trace, malicious Call identification) and in anonymised form the compilation of statistics relating to Call origin; and 12.4.4 display to Customers subject to compliance with the CLI Guidelines; and 12.4.5 activities relating to Customer enquiries; and 12.4.6 prevention and detection of fraud. 12.5 Notwithstanding any other provision of this Agreement and any preference expressed by a calling user or subscriber, a Party may present the identity of the calling line when an emergency (999/112) Call is made and use CLI to pass telephone numbers to emergency organisations. 12.6 The cost of generating and conveying CLI is included in the relevant conveyance rates for Calls. Neither Party shall apply additional charges for CLI. 12.7 If there is a change in law or regulation relating to CLI, the Parties shall change the operation of CLI to the extent necessary to comply with the applicable law or regulation. 13. QUALITY OF SERVICE Neither Party warrants or represents that its’ Network or the Services provided by it are or will be free from faults. Each Party shall notify the other Party as soon as possible of any facility failure which will arise, or will be likely to arise, from a cause originating within the Party’s Network and which is expected to result in a protracted interruption of any or all of the Services hereunder described. In the event of a fault within a Party's Network which adversely affects the provision by either Party of the Services, the relevant Party shall notify the other Party of the fault as soon as is reasonably practicable and shall use all reasonable endeavours to correct the fault in accordance with the engineering practices accepted in the industry. Each Party shall give the other Party not less than fourteen (14) working days’ notice in respect of any planned outage of its Network which may affect the performance of its obligations under this Agreement and, in any event, such notice shall give the other Party sufficient time and outage details to enable that Party to make provision for the outage. 14 GOVERNANCE MEETINGS The Parties shall procure that their respective representatives will meet or have conference calls regularly to discuss the progress of the Agreement in accordance with a schedule to be agreed between the Parties. 15 LIABILITY 15.1 If a Party is in breach of any obligations under this Agreement to the other Party or otherwise Subject to Contract/Contract Denied 12 (including liability for negligence or breach of statutory duty or under any indemnities provided in this agreement) or if any liability is arising, such Party’s liability to the other Party shall be limited to Euro 1,000,000 (one million Euro) for any one event or series of connected events and to Euro 2,000,000 (two million Euro) for all events (connected or unconnected) in any period of 12 (twelve) consecutive calendar months. 15.2 Neither Party shall be liable to the other in contract, tort (including negligence or breach of statutory duty) or otherwise for indirect loss (including, without limiting the foregoing, any special, indirect or consequential losses, whether or not known, foreseen or foreseeable) or direct or indirect loss of profits, business, revenue, goodwill or anticipated savings, business interruption, wasted expenditure, loss corruption or destruction of data or for any indirect or consequential loss whatever, arising in connection with the performance of this Agreement, whatsoever shall be the cause of same and however long it shall last. 15.3 Neither Party excludes or restricts in any way its liability for death or personal injury resulting from its own negligence. 15.4 Neither Party shall be liable for any loss or damage sustained by the other Party or its end users (other than damages intentionally or negligently caused) by reason of any failure in or breakdown of the communication facilities associated with the Circuits used in providing the Service under this Agreement or for any interruption or degradation of Service, whatsoever shall be the cause of such failure, breakdown, interruption or degradation and however long it shall last. 15.5 Neither Party shall be liable to the other Party against any actions, proceedings, claims or demands in any way connected with this Agreement brought or threatened against the other Party by any third party, unless the grounds for the actions, proceedings, claims or demands arise from default by the other Party. 15.6 The provisions of this Clause 15 shall continue to apply to matters arising out of this Agreement notwithstanding the termination of this Agreement. 16 AUTHORISATIONS As may be required by each Party, all undertakings and obligations assumed hereunder by either Party are subject to the issuance and continuance of all necessary governmental licenses, consents, permits, registrations, authorisations or approvals. 17 NOTICES All notices under this Agreement shall be made in writing and shall be deemed to have been received ten (10) calendar days after the date of mailing and shall be deemed validly delivered if sent by hand or by registered mail to the following persons: For TMI: David Hanlon (Head of Finance) TMI For the Operator: [To be inserted] 18 ENTIRE AGREEMENT 18.1 This Agreement including its Annexes, and any Supplemental Agreement that is governed by the terms of this Agreement represents the entire understanding between the Parties in relation to the subject matter hereof and supersedes all other or prior agreements and representations made by Subject to Contract/Contract Denied 15 26.1 Subject to Clause 15, each Party (the “Indemnifying Party”) shall indemnify the other Party (the “Indemnified Party”) against all claims and proceedings arising directly from infringement (or alleged infringement) of any Intellectual Property Rights enforceable in any country in which Service is provided, by reason of the Customer's use of any Service or any item provided as part of the Service. As a condition of this indemnity the Indemnified Party shall: i. notify the Indemnifying Party promptly in writing of any allegation of infringement; ii. make no admission relating to the infringement; and iii. allow the Indemnifying Party to conduct all negotiations and proceedings and give the Indemnifying Party all reasonable assistance. 26.2 If at any time an allegation of infringement of the Intellectual Property Rights is made, the Indemnifying Party may at its own expense modify the Service, or any item provided as part of the Service, so as to avoid the infringement, provided that any such modification does not materially affect the performance of the Service. 26.3 The indemnity in Clause 26.1 does not apply to infringements occasioned by the Indemnified Party's use of the Service, or any item provided as part of the Service, in conjunction with other apparatus or software not supplied by the Indemnifying Party or to infringements occasioned by designs or specifications made by the Indemnified Party. The Indemnified Party shall indemnify the Indemnifying Party against claims, proceedings and expenses arising from such infringements. 27 GOVERNING LAW AND JURISDICTION 27.1 This Agreement shall be governed by and construed and enforced in accordance with the laws of the Republic of Ireland. 27.2 Any dispute controversy or claim arising out of or relating to this Agreement and its Annexes or the breach, termination or invalidity thereof, shall be brought to the Courts of the Republic of Ireland, having exclusive jurisdiction. Subject to Contract/Contract Denied 16 Made up in two originals, for which each Party declares having received a valid and signed version. FOR: TMI FOR: [To be inserted] Subject to Contract/Contract Denied 17 Annex A – Voice Call Termination Services 1. Voice Call Termination Services means the service provide by TMI for termination of voice call traffic destined for the TMI network. The specific termination fees for Voice Call Termination Services are shown in Annex B. 2. The Operator will pass to TMI the full CLI (calling line identification) for originating calls. Neither Party shall modify the CLI except in line with technical specifications previously agreed by the Parties. 3. TMI will continue to provide Interconnect capacity free of charge as per existing policy. Charges and Billing 4. The Operator will pay the charges due to TMI in accordance with the rates specified in Annex B of this Schedule and for the avoidance of doubt in accordance with the terms of the Interconnect Agreement. All rates are exclusive of VAT and other sales taxes, duties or levies imposed on TMI by law. Where such a tax, duty or levy becomes due the amount will be added to the charges payable. 5. TMI will provide seven (7) calendar days written notice (by fax or email) to TMI of any rate changes to the following contacts: TMI:- Email: david.hanlon@tesco.com TMI:- Email: [To be inserted] 6. Billing and settlement will be done in accordance with the provisions of the Interconnect Agreement. Quality of Service 7. TMI will monitor traffic volumes on its switches. Based on this monitoring TMI will propose capacity extensions. The trigger will be (non-incidental) congestion during busy hour above 1% at which point TMI will carry out an analysis and advise TMI of its findings. Any capacity increase which TMI thereafter wishes to implement will be subject to change control (i.e. written agreement by both parties of costs and terms). 8. In some cases (e.g. force majeure) at the terminating side, temporary solutions can be applied to terminate traffic via an overflow construction via a third party, not via a virtual direct link, after consultation with the originating party. Subject to Contract/Contract Denied 20 ANNEX C MUTUAL BILLING PROCEDURES 1. The Billing Party shall record Calls which are passed to the Paying Party Network and shall invoice the Paying Party for such Calls in accordance with the provisions of this Annex. Where it is impracticable for the Billing Party to record the details of a Call, records of Call details of the Paying Party shall be used. Notwithstanding this however, in the case of Calls to Irish National Mobile numbers that have ported from one mobile network operator to another mobile network operator, the Billing Party records shall be used to verify the destination network based on the Mobile Number Portability central database. 1.1 The invoice submitted by the Billing Party shall be delivered to the Paying Party by e-mail and shall contain the following information: (a) invoice date; (b) Billing Period; (c) billed amounts broken down into standard, exempt and zero Vatable amounts; (d) VAT amounts per invoice for standard amounts only; (e) VAT registration number and company number; (f) VAT rates used; and (g) total amount payable. 1.2 The Billing Party shall provide, at the same time that it delivers to the Paying Party an invoice in respect of charges for Services, a summary statement relating to such invoice containing the following information: (a) number of Calls; (b) total duration of Calls; (c) and total charge. The Pricing bands are as follows daytime peak which is Monday – Friday 8.00am – 5.59pm (Peak); off-peak which is Monday-Friday 6.00 pm – 7.59am (Off-Peak); weekend which is Friday – Monday 6.00 pm – 7.59am (Weekend), Timezone: Ireland 1.3 Each Party shall maintain and retain for a period of two years from its submission of each invoice true and accurate books of account and such information as may reasonably be required for calculation or verification of the amounts payable under such invoice (excluding information on individual Calls). 1.4 Charges for conveyance of Calls shall accrue only when: (a) the Call is conveyed through the Operator Network and the TMI Network or vice versa and connection is made to the called CLI and the Called Customer Answer Signal is received by the system on which the Call originated; (b) the Call cannot be conveyed in accordance with paragraph 5 (a) and as a consequence is diverted to a service or Network in accordance with arrangements previously agreed with the called Party; (c) a Called Customer Answer Signal is received from another national operator; or (d) as otherwise agreed by the Parties from time to time. 1.5 Charging shall cease on the earlier of the detection of the calling or called Party release signal. This release signal shall be generated: (a) by the Operator of the system of the calling Party immediately after the calling Party has cleared the connection; Subject to Contract/Contract Denied 21 (b) in the case of the Operator of the system of the called Party, immediately after the called customer held time-out (that is the period of time between the called Party clearing the connection and the connection being released as agreed between the Parties); or (c) immediately after the called Party clears the connection. 1.6 Conveyance charges specified in Annex A are expressed either per minute (when Call duration is measured in minutes and seconds) or as a flat charge, however, billing will be on a per second basis. 1.7 Subject to paragraphs 10 and 11 the charge for conveyance of a Call is calculated by the following formula: D = (AxB) + C Where: A = the Call duration in minutes and seconds B = the cent per minute charge C = the flat charge D = the total charge. 1.8 Where the duration of the Call extends across more than one time band, the total charge will be comprised of the sum of the component duration multiplied by the rates relevant to each individual time band. 1.9 Where it is impractical for both Customer and TMI to record the duration of a Call, Customer and TMI may agree to use the following algorithm to calculate the charges payable: D = (N x B) + (N x A x C) Where: N = the agreed number of Calls of a particular class (charge band) A = the agreed duration of Calls (in seconds) B = the cent per call charge C = the cent per minute charge D = the total charge for all Calls 1.10 Subject to Clauses 5 and 6, all charges payable under this Agreement shall be paid within 30 days of the date of invoice.