Flag fr front disabledFlag en front

GENERAL CONDITIONS FOR THE LEASE OF OPTICAL FIBER CHANNELS

SIPARTECH (referred to hereinafter as the «Service Provider») is specialized in the installation and exploitation of telecommunications, computer and electronic equipment, within the meaning of Article L.33-1 of the French Post and Telecommunications Code and proposes services consisting in the commissioning of optical fiber channels (referred to hereinafter as the « Service »).

In this capacity, the Parties have agreed as follows:

ARTICLE 1: ENTRY INTO FORCE – DURATION

These General Conditions are entered into for the duration of the Service provided.  The duration of each Service is one (1) year beginning on the date of the effective availability of the Service.  At the end of this fixed period, the Service will be renewed for annual periods unless notice of termination of the Service is given by one of the Parties three (3) months before the end of said period.

ARTICLE 2 – WARRANTIES

2.1- The Service Provider hereby represents and warrants to the Client that it holds all of the ownership rights to the Optical Fiber Channels, and that no security interest or easement exists which might impact the use and peaceful possession thereof by the Client of the Service.  In the event that legal action (a suit…) were brought on the grounds mentioned above, the Service Provider represents and warrants that it shall hold the Client harmless from:

(i) any order entered against it under an enforceable court decision,

(ii) all damages incumbent upon the Client pursuant to a settlement agreement entered into connection with a dispute with a third party on the same grounds, and all reasonable costs (including the costs of defense) incurred by the Client.

2.2 Unless otherwise provided herein, the Service Provider excludes all explicit or implicit warranties concerning the Service, including warranties of merchantability or suitability for a particular use.

2.3 The Client represents and warrants to the Service Provider that it has obtained, and shall do its utmost to maintain in force, all agreements, approvals, licenses, permits and other public or private authorizations permitting it and third parties to use the Service.

ARTICLE 3 – TERMS OF PAYMENT

a) Once the Client has accepted the General Conditions which constitute a firm order, the Service Provider will invoice the Costs of access to the service. The fees will be invoiced quarterly in advance beginning on the date of the availability of the Service.

These prices are exclusive of tax.

Prices are payable by direct bank debit within thirty (30) days of the date of the invoice.

b) At the end of the first year, the Service Provider may adjust its prices at any time, provided that it informs the Client two months prior to the application of the new prices.  In the event of refusal, the Client will have the right to terminate the Service by registered letter no later than one month prior to the date of the application of this price change.

c) In the event of the non-payment or rejection of the automatic debit, the Client will owe interest for late payment on all sums invoiced and not paid on the due date at the rate of three (3) times the legal interest rate in force and this until full payment.  This interest for late payment is payable without any reminder being necessary. Furthermore, in the event of a late payment, the Client will automatically owe to the Service Provider, a lump sum indemnity for the collection costs, the amount of which, set by decree, is equal to forty (40) euros.  If the collection costs incurred by the Service Provider exceed the amount of this lump sum indemnity (attorneys’ fees, bailiffs’ fees…), the Service Provider will be entitled to request additional indemnification, upon production of documents in proof.  The amount of this indemnity may be subject to a legal increase which the Service Provider will be entitled to apply.

In the event of a payment is more than 30-days late, the Service Provider may, at its own discretion, suspend or terminate the Service for which payment has not been received.  All sums owed by the Client will be paid in full without offsets, restrictions or conditions, and without any deductions whatsoever pursuant to any possible contestation.

ARTICLE 4 – INSURANCE

Each party undertakes to take out and maintain in force, at its own expense, throughout the duration of the Service, civil liability insurance policies for bodily injury, material and immaterial damage caused to the other Party or to a third party, the amounts of which provide sufficient coverage for the risks related to the Service, as well as insurance for occupational accidents.

Each Party shall insure its fleet of equipment for all risks of damage, and waives all action against the other Party and its insurers in the event of a contingency impacting this fleet of equipment, including the amount of the deductibles.

Each Party shall produce proof of insurance at the other Party’s request.

If one Party has not taken out the required insurance coverage and if a claim is made or sustained, the defaulting Party shall indemnify and hold harmless the other Party for all claims for which the required insurance should have provided coverage.

ARTICLE 5 – CONFIDENTIALITY

Subject to the stipulations of this Article, each of the Parties shall respect the confidentiality of the terms of these General Conditions and all technical, financial, legal and other information obtained from the other Party in the context of the Service and/or the General Conditions, in any form or on any medium whatsoever, the confidentiality of which is indicated in writing or orally, or which may be confidential due to its inherent nature in the context of day to day business (referred to hereinafter as « Confidential Information ».

The obligations incumbent upon each of the Parties will not apply to information:

-  which is known by the public or which falls within the public domain otherwise than as the result of an action or omission on the part of the other Party, or

-  which one of the Parties is required to disclose by virtue of the law or at the request of the court having jurisdiction, or a Statutory Auditor ;

-  regarding which the receiving party can prove that this information was known to it prior to the date of its communication.

The Service Provider may, with the Client’s consent, disclose its trade name and logo to third parties, solely for the purpose of promoting the Service Provider’s activities.

Each of the Parties may disclose the Confidential Information to its attorneys, including, exhaustively, its insurers, accountants, attorneys, financial advisors and/or lenders, to companies in its group provided that each of the Parties makes sure that these persons are bound by the same obligations of confidentiality as those described in this Article.

The Parties undertake to communicate the Confidential Information solely to the employees and subcontractors who must have access thereto in order to carry out their duties and to make sure that they understand the confidential nature thereof.

The stipulations of this Article will survive beyond the termination of the Service, or the expiry thereof for any reason whatsoever for a period of five (5) years.

ARTICLE 6 – LIMITATION OF LIABILITY

The Service Provider will not be liable to the Client for any losses or failures caused by a third party.

No provision in these General Conditions is aimed at excluding or limiting the Parties’ liability in the event of fraud, deception, serious breach or misconduct (faute lourde) and death.  Subject to the provisions of this Article, and without prejudice to the obligation incumbent upon the Client to pay the sums owed under invoices issued for the Service provided, and notwithstanding the non-binding nature or invalidity of any other provisions in the General Conditions, each Party’s liability for any direct damage caused to the other Party is limited for a given Service to 50% of the amount of the Service involved.

In no event, shall either party be held liable for the consequential damage resulting from the performance of this Service, such as loss of income, data, profits, savings, revenue, activity, goodwill or contracts, or for damage or losses resulting therefrom, or for consequential or special incidents resulting from the performance of the Service.

Subject to the provisions of this Article, each Party agrees to indemnify, defend and hold harmless the other Party, its management and employees from all losses, damage, liability, costs and expenses (including reasonable attorneys’ fees and expenses) related to third party claims or legal action for any :

a.  bodily injury, including death, attributable to this Party ;

b.  damage to, loss or destruction of real estate or tangible personal property

It is understood by the Parties that the Service Provider will in no event be liable for equipment selected by the Client which proves to be incompatible with the channel allotted to it by the Service Provider in the framework of an order.

ARTICLE 7 – TERMINATION

Each Service may be terminated forthwith by registered letter from either Party with return receipt as follows:

Ø  immediately in the case of Articles L.611-3 and L611-4, L620-1 and following, L.631-1 and following, articles L.640-1 and following of the French Commercial Code

Ø  in the case of the other party’s breach of one of its essential obligations under the General Conditions and, in the event where such breach were not remedied within fourteen (14) days following receipt of a formal notice requesting that it do so.

In the event of termination for any reason whatsoever, each Party shall pay all sums owed to the other Party within fourteen (14) days following the effective termination date.  All the sums outstanding but not yet invoiced will become immediately due upon receipt of the invoice(s) issued by the other Party.

ARTICLE 8 – FORCE MAJEURE

Neither Party shall be held liable in the event of delays or a default in the performance of its obligations hereunder, if this delay or default is attributable to the occurrence of an event presenting the characteristics of Force Majeure, as defined by French law, which is beyond its control and in particular, and without limitation, in the case of a natural disaster, war, collective labor conflicts, demonstrations, fire, floods, thunderstorms, storms, explosions, a major failure or interruption in the power supply, a supplier’s default, actions or omissions on the part of the government or the regulatory authorities, the authorities in charge of the road network, the operators and/suppliers of third party telecommunications systems or other competent authorities, acts of terrorism and national emergencies.

If the cases of Force majeure last for over one (1) month, either Party may terminate the Service at issue which cannot be performed due to the case of Force majeure.

ARTICLE 9 – INTUITU PERSONAE – SUBCONTRACTING

The General Conditions were entered into in consideration of the Parties’ particular identity. Consequently, this document is of a marked « intuitu personae » character and the Parties may not transfer all or part of the rights they have acquired pursuant thereto, without the prior, express authorization of the other Party, to the exclusion of intra-group transfers, which are duly authorized.

The Service Provider may be led to resort to subcontracting in the framework of its rights and obligations and hereby represent that it is in compliance with the provisions of law n° 75-1334 of December 31, 1975 relating to subcontracting.

ARTICLE 10 – GOVERNING LAW – JURISDICTION

These General Conditions are governed by French law and any dispute concerning the conclusion, existence, interpretation, performance, validity or any other aspect thereof shall be settled in accordance with this law.

Any dispute concerning these General Conditions will be subject solely to the exclusive jurisdiction of the Paris Courts. The Parties accept to submit to this exclusive jurisdiction. Nothing in these General Conditions prevents one of the parties from bringing summary proceedings.

The parties acknowledge that these General Conditions contain their entire, exclusive agreement concerning the Service provided.  These General Conditions replace any prior, oral or written offer, statement, communication or agreement.

ARTICLE 11 – NON-WAIVER

The fact that one of the Parties fails to avail itself of a breach on the part of the other Party, of one of the obligations referred to herein, shall not be interpreted in the future as a waiver of the obligation at issue.

ARTICLE 12 – INDEPENDENCE OF THE CLAUSES

In the event that any one of the provisions and/ or an article of these General Conditions were declared invalid, illegal, or unenforceable by a court having jurisdiction or any other competent authority, this provision or article shall then be eliminated.  The other provisions of these General Conditions will remain in force and continue to apply within the limits created by law.


PARTICULAR CONDITIONS

ARTICLE 1 –SPECIFIC PROCEDURE TO OPTICAL FIBER CHANNELS

The Service Provider itself provides the Service or part thereof via a subcontractor.

In order to test the functioning of the Service, an acceptance procedure will be put into place at the time the service is provided:

The Service company shall perform the first tests for the technical approval of the Service prior to the delivery thereof.

Once the technical tests have been completed, the Service Provider provides a technical approval report to the Client.

Within five (5) business days following the date of the receipt of the technical approval report, the Client must:

a.  confirm to the Service Provider the proper acceptance of the Service by countersigning the technical approval report, possibly indicating the existence of any « Minor Incident », namely one which does not significantly impact the Client’s use of the Service.  The date of the Client’s countersignature of the technical approval report  constitutes the date of the beginning of the Service ;

b.  notify to the Service Provider any Major Incident (designating any identified dysfunction or failure which entails a total halt in the use of the Service).

When the Client notifies the Service company:

a.  of its acceptance of the Service, the Service Provider performs, as the case may be, the work it considers reasonably necessary to remedy the Minor Incidents or, failing that, those which have been identified by the Client ;

b.  of its non-acceptance of the Service due to a Major Incident, the Service Provider accepts in good faith to do its utmost to make the Service functional. Once the Service has been restored, the Service Provider provides a new technical approval report to the Client.

In cases in which the Major and/or Minor Incidents are attributable to the Client’s system, or to an act or omission on the Client’s part, the Service Provider may invoice to it the costs reasonably incurred for seeking and repairing said Incidents.

In the event that the Client has not notified an incident to the Service Provider within five (5) days following receipt of the report, it is deemed to have tacitly accepted the Service.

The date of the Client’s signing of this technical approval report or, failing that, the date of tacit acceptance constitutes the date of the beginning of the Service.

If the Service Provider does not deliver the Service within ninety (90) days following the agreed delivery date, the Client is entitled to terminate the Service by sending ten (10) days’ written notice to the Service Provider. The Parties agree expressly that this right constitutes the Client’s sole recourse, and that no penalty, reimbursement or any other sum owed in damages, or in any other capacity whatsoever, will be owed by the Service Provider.

ARTICLE 2 – ACCESS AND AUTHORIZATIONS

a)   The Service Provider grants a right to use the other installations with respect to which it provides proof of ownership, known as « sublet », throughout the duration of the Service.

b)  The Client undertakes to use the Service as well as the Service Provider’s equipment in accordance with the laws, rules, authorizations and regulations in force as along with all other obligations which apply with respect to third parties.

The Client may not authorize the use of or access to the Service, regardless of the circumstances, in full or in part, to a third party, with the exception of its own clients in the usual context of its activities.  For the purposes of these Particular Conditions, the usual context surrounding the Client’s activities does not include the sale, rental or granting of rights of use related to the “Optical Fiber Channels” such as this term is commonly used in the electronic communications sector.

c)   Except in the usual context of its activity, the Client may not sublet, transfer, grant licenses or sub-licenses to, sell, share or use the Service in any other manner, jointly, with a third party (including in the framework of a joint venture or outsourcing activity).  Any breach of this Article will be considered as a serious breach of the General Conditions.  In the event of such a failure, the Service Provider may terminate the Service immediately, without prejudice to all other rights and remedies at its disposal.

The Service Provider may, periodically, during the duration of the Service, replace one or several optical Fiber Channel(s) provided to the Client by one or several similar Optical Fiber Channels, at no additional cost for the Client, or indemnity owed to it.

ARTICLE 3 – PENALTIES AND SERVICE LEVELS

During the period of the Service, the Service Provider undertakes to correct any failure in the Service in order to repair any anomaly or interruption at no cost for the Client.  For this purpose:

a)  The Client shall notify the Service Provider, as soon as it becomes aware thereof, of the existence of a Major Incident in the Service supply.  The Service Provider will then issue an incident voucher which will be considered as the starting point of the period of unavailability.

b)  If the Service is not restored in compliance with the service levels specified below, the Client shall send a written complaint to the Service Provider within eight (8) days following the issuing of the incident voucher, mentioning the amount claimed based on the service levels.  The Service Provider shall then owe Service penalties to the Client beginning on the date of the issuing of the incident voucher until the complete restoring of the Service.

c)  The Service Provider shall not owe any Service penalties :

(i)   if non-compliance with the Service levels is attributable to the Client or to its equipment; or

(ii) if the restoring of the Service is impossible due to the Client or its equipment; or

(iii)   if the Client does not notify the Service Provider of the occurrence of the incident and/or does not send a written complaint to the Service Provider within eight (8) days.

d)  Service penalties are calculated on the basis of each incident during which the Service is unavailable, as described below, and are measured as a percentage of availability over the course of a given calendar month.  In any event, Service penalties cannot be accumulated in the event of several incidents or periods of unavailability.

e)  The term «Service Penalty Unit» to which reference is made is equal to one third of the quarterly fee.

f)  The maximum amount in Service penalties owed by the Service Provider for all incidents arising over the course of a given calendar month has been set at one Service penalty unit.  In all events, Service penalties are limited to the payment of three (3) Service penalty Units per year.

g)  In the event of Service penalties owed to the Client, the Service Provider will issue a credit note which shall be deducted from the next invoice for the quarterly fee.  In the event of the termination of a Service, the Service Provider will pay the Service penalty to the Client for the Service at issue.

h)  The availability of the Services is calculated using the following chart based on 720 hours per month, corresponding to 24 hours of access to the Services per day, 30 days per month, during which the Service Provider warrants the Client access to the Service.  When the date of the beginning of the Services is not the first day of a calendar month, or when a Service is terminated on a day other than the last day of a calendar month, availability will be calculated prorata on the basis of the period between the date of the beginning of the Service and the end of the calendar month concerned, or with reference to the period from the beginning of the calendar month concerned to the termination date.

Service level objectives

Periods are calculated beginning at the time the Client has notified the Service Provider of the problem.


Service

Activity

Service level objective

Client assistance center

Availability

24 h/day 7 days/week 365 days/year

Maintenance of Optical Fiber Channels

Time required for the temporary repair (exposed cable) of a Major Incident

< 12 hours

Time required for the temporary repair of a Minor Incident

< 10 days

Time required for the permanent repair of the Optical Fiber Channels of a Major or Minor Incident

< 20 days

Report

Incident Report

48 hours after the incident

Periodical reports

Quaterly, on request

Warranty of treatment of incidents

The objective in terms of repair time for Major Incidents is 12 hours.

If the Service Provider does not meet the repair time objective, the Client will be entitled to claim the following indemnity: 1% of the fees for the current month/hour for each hour exceeding the twelve (12) hours stipulated in the objective, within the limit of the ceiling mentioned in f).

Warranty of Service availability

If Service availability time, from start to finish incidents, falls below 98.3%, the Client will be entitled to claim compensation for each Optical Fiber Channel impacted, in accordance with the following chart:

Percentage of availability (service level)

Service penalty Units (% of the fees payable by the client)

98.3% to 97.78% (between 12 and 16 hours for a Major Incident)

2 %

97.77% to 97.22% (between 16 and 20 hours for a Major Incident)

5 %

< 97.21% (over 20 hours for a Major Incident)

8 %

ARTICLE 4 – MAINTENANCE SERVICES

Types of maintenance

Maintenance is included in the fee, and comprises:

Preventive maintenance

Preventive Maintenance comprises all the activities designed to protect the cladding and cable from all normal wear. Preventive Maintenance will be provided during working hours except in the event of an emergency or specific agreement between the Client and the Service Provider

Corrective Maintenance

Corrective Maintenance comprises all repairs required for the general maintenance of the Service Provider’s network following the discovery of incidents or damage which do not impact the Client’s operations.  Corrective Maintenance is aimed at repairing this failure or incident.

Emergency service

The Service Provider will provide emergency service for any incident, repair or condition which exposes the Optical Fiber Channels to an immediate risk and when a delay is liable to generate an additional risk for the Client’s services, the Parties or third parties.  Emergency Service will be implemented as soon as the Client notifies the emergency.

Client call Center

a.  The Service Provider will offer « a Client call center » consisting in a 24/7 assistance service to which the Client can report incidents by telephone and confirm them by e-mail.

b.  The Client Department :

·  will receive and take note of the Client’s calls ;

·  call the person in charge of service maintenance ; and

·  open and close an incident voucher with the Client’s approval.

Work planned

The work planned will be organized by the Service Provider so as to minimize the impact thereof for the Client, the Service Provider and their respective clients, and may be performed during working hours.

Planned work which does not impact the Client’s capacity to exploit the Service will be carried out during working hours as rapidly as possible.  The Service Provider will inform the Client of these repairs ten (10) days prior to the implementation thereof, inasmuch as possible.

Planned work which has a substantial impact on the Client’s capacity to exploit the Service will be carried out in coordination with the Client with a minimum of thirty (30) days’ notice, except in the event of an emergency.  In this event, the Service company will do its utmost to limit the negative effects on the use of the Service.

If it turns out that the Client’s use of the Service is liable to undermine the integrity of the network, the Service Provider may trigger and coordinate planned maintenance operations which may comprise, among other things, the disconnection of all or part of the Service.

The Client undertakes to refrain from installing or using any equipment which might damage or undermine the network.

If all or part of the Service is in need of restoration, replacement or repair due to an act or omission on the part of the Client, its employees, agents or subcontractors, this repair, replacement or reinstatement may be carried out by the Service Provider at the Client’s expense.

The cable trays are shared by all clients.  For reasons of security, only the Service Provider’s personnel or subcontractors shall have access to the cable trays.  If the Client wishes to interconnect its installations with those of another Client, it shall submit a request to this effect to the Service Provider.  The Client shall provide the technical specifications of the requested loop. To do so, the Client shall fill-in the form provided by the Service Provider, which shall contain the detailed description of the work requested, the client contacts, the desired quantities and date.

Intervention Procedure

a.  The Client will report incidents to the Client Call Center.  The Client will provide to the Service Provider a list of the persons or companies authorized to issue such reports (referred to hereinafter individually as the « Authorized Caller »). The procedures for reporting detailed incidents and the numbers of the contacts will be provided in a document.

b.  When it receives a call from a Client, the Service Provider verifies that the caller is indeed an Authorized Caller and if this is the case, will open an incident voucher and indicate to the Client the reference number of this voucher.  This reference number is necessary for monitoring the incident.  The Client will confirm the reporting of the incident in writing, by fax or e-mail within 30 minutes of the call.  After notifying an incident, the Client Department will call the person in charge of service maintenance who will coordinate the repair work.

c.  The Client shall provide all relevant information which the Service Provider will need to locate and correct the incident.

Following an incident, the Service Provider may issue an incident report at the Client’s request, specifying:

·  the reference of the incident ;

·  the time at which the incident was notified;

·  the time at which the Service was restored ;

·  the actions undertaken by the Service Provider ; and

·  the cost of the repairs, as the case may be.

Types of incident

The Service Provider will classify incidents based on their seriousness either as major or minor incidents.

All other events, which have no negative impact on the Client’s operations, will be handled as « planned work ».

In the case of Major Incidents, the Service Provider undertakes to devote personnel full-time, at any time, to solve the problem and the Client undertakes to provide reasonable assistance to the Service Provider, at any time.

In the case of Minor Incidents, the Service Provider undertakes to devote personnel full-time during working hours in order to solve the problem with the Client’s assistance.

Repairs

After an incident has been notified by the Client Call Center, the person in charge of service maintenance and maintenance teams will undertake the following measures in the place of the location of the incident.  It will:

·  identify as precisely as possible the location of the incident on the section ;

·  It will consult the appropriate holders of the rights of way and/or the local authorities to obtain access to the section, as the case may be ;

·  It will carry out temporary or permanent repairs, depending on what is appropriate ;

·  It will document the modifications and submit reports to the Client Call Center ; and

·  propose permanent repairs, as the case may be.

The repair intervention will be scheduled in accordance with the following principles:


Incident

Intervention

Major Incident

Intervention 24/7

Minor Incident

Intervention over the course of the next 6 hours

INVOICING PRINCIPLES

Interventions requested by the Client which prove unjustified because they are not identified will be invoiced to the Client on the basis of the Service Provider’s hourly labor rates indicated on the following chart, as well as the cost of all work undertaken accompanied by documents in proof, plus 20%

Chart of the Service Provider’s labor costs (hourly rate)

Notice made

48-hour notice

24-hour notice

4-hour notice

Hours of the required support service

Monday through Friday, during working hours

  300 €

  340 €

  400 €

Monday through Friday, outside working hours

  370 €

  425 €

  500 €

Saturdays

  370 €

  425 €

  500 €

Sundays

  445 €

  510 €

  615 €

these rates are those of experienced telecommunications technicians and include the costs of transportation and accommodations but do not include equipment.  They are adjusted annually.  A four (4)-hour minimum intervention delay will be applied.