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EXHIBIT 10.7
SERVICE PROVIDER AGREEMENT
THIS AGREEMENT dated the 15th day of March 1999 is made between:
1. DOLPHIN TELECOMMUNICATIONS LIMITED whose principal place of
business is The Crescent, Jays Close, Basingstoke, Hants RG22
4BS ("Dolphin").
2. HUGO INTERNATIONAL LTD. whose principal place of business is
at 6 Waterside Drive, Langley Business Park, Langley, Slough,
SL3 6EZ (the "Service Provider").
WHEREAS Dolphin has been granted a Licence (as hereinafter
defined) to operate a nation-wide mobile radio
telecommunications system as specifically described
in such Licence; and wishes to grant to the Service
Provider certain non-exclusive rights to promote the
use of the System (as hereinafter defined) within the
Coverage Area (as hereinafter defined) and to grant
access to the System to Subscribers (as hereinafter
defined), all on the terms and conditions as follow;
and
WHEREAS the Service Provider wishes to accept such grant and
provide to Subscribers Services (as hereinafter
defined) made available by means of the System.
NOW IT IS HEREBY AGREED:
1. DEFINITIONS
In this Agreement, the following words and expressions shall
(unless the context otherwise requires) have the following
meanings:
1.1 "Licences" licences granted to Dolphin
by the Secretary of State
under the Telecommunications
Act 1984 ("T.Act Licence)
and a licence to operate a
TETRA Network granted to
Dolphin by the Secretary of
State under the Wireless
Telegraphy Act 1949
("W.T.Act License");
1.2 "System" the telecommunications
system specified in the
W.T.Act Licence;
1.3 "T. Act" the Telecommunications Act
1984 and any regulations
thereunder;
1.4 "W.T.Act" the Wireless Telegraphy Act
1949 and any
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regulations thereunder;
1.5 "Schedule of Charges" the Schedule of Charges for
telecommunication services
as published by Dolphin from
time to time;
1.6 "Services" such telecommunication
services as may be available
from time to time by means
of the System;
1.7 "Coverage Area" the approximate area shown
in such coverage maps within
the United Kingdom as may be
published by Dolphin from
time to time;
1.8 "Subscriber" the individual recipient of
the Services who is
authorized by the Service
Provider to use a Subscriber
Number (as hereinafter
defined);
1.9 "Subscriber Number" such number(s) to be used by
the Subscriber for the
purposes of obtaining the
Services;
1.10 "Subscriber Equipment" any mobile, transportable,
portable or fixed mobile
station apparatus which is
approved under the T.Act
and/or W.T.Act as applicable
for use on the System;
1.11 "Registration" the process whereby the
relevant networks cause the
System to provide those
Services to which a
Subscriber elects to
subscribe to a Subscriber
Number. The words "Register"
and "Registered" shall be
construed accordingly;
1.12 "Agreement" this agreement made between
Dolphin and the Service
Provider relating to the
provision of the Services
and to which the Schedules
of Charges and these terms
and conditions apply; and
1.13 "Agreement Period" the period of this Agreement
as defined in Section 2.
Words in the singular shall include the plural and vice versa
where the context requires or admits.
References to sections shall be to the section numbers of this
Agreement.
References to any statute or statutory instrument shall
include any re-enactments, modifications or amendments thereto
for the time being in force.
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2. DURATION
This Agreement shall commence on the date hereof and shall
continue for an initial period of three (3) years and
thereafter until such time as it shall be terminated by
Dolphin upon the giving of at least two (2) years notice in
writing to the Service Provider (subject to the provisions for
earlier termination contained in section 8).
3. LICENCES
The Service Provider shall at its own expense obtain in its
own name any licence required by the T.Act and/or the W.T.Act.
4. GRANT OF RIGHT
Dolphin grants to the Service Provider the non-exclusive right
during the term of this Agreement to provide the Services to
Subscribers by means of the System.
5. UNDERTAKINGS OF THE SERVICE PROVIDER
The Service Provider hereby undertakes to Dolphin during the
term of this Agreement:
5.1 to use its best endeavors to promote the Services and
not to do anything which would reasonably be regarded
as inconsistent with this obligation;
5.2 to provide its services (including the Services) to
Subscribers in respect of the System in a proper and
efficient manner;
5.3 to employ such numbers of qualified management, sales
and technical personnel as will provide proper
demonstration, sales, advisory, repair and other
relevant services (including Services) to Subscribers
and potential Subscribers to the System;
5.4 to comply with the requirements of the United Kingdom
legislation and regulations relating to
telecommunications; not to use the Services for
improper or unlawful purposes; not to cause the
quality of the Services to be impaired; not to cause
the services of other Service Providers to be
impaired; and to impose binding obligations on its
Subscribers to comply with these undertakings and so
far as it is possible to ensure compliance by its
Subscribers therewith;
5.5 to comply with any code of practice issued pursuant
to the Licences and with any requirement under such
Licences applicable to Service Providers,
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in particular any requirements related to
confidentiality of Subscriber information;
5.6 to provide Dolphin with such information and
co-operation (including in particular a quarterly
forecast of subscriber activations and
disconnections) that Dolphin may reasonably require
and comply with all reasonable directions issued by
Dolphin with respect to the use of the Services;
5.7 to ensure in respect of all Subscriber Equipment
supplied by it that the proposed Subscriber is
properly instructed in the operation thereof and to
arrange repair, maintenance and after sales service
to a standard acceptable to Dolphin;
5.8 as required by the T.Act Licence and/or the W.T.Act
Licence and as published by Dolphin within its
Service Provider codes of practice to provide within
the terms and conditions of the contract between the
Service Provider and its Subscribers, an inexpensive
arbitration procedure by which disputes with its
Subscribers can be resolved;
5.9 to characterize as "proposed" or "projected" and not
otherwise, to its Subscribers or potential
Subscribers, the "proposed" or "projected" System
coverage and Services characterized as such by
Dolphin in its publications from time to time;
5.10 not to promote any rival service or system in
preference to the Services and the System nor to
unfairly discount any such service or system so as to
promote sales of that service or system in preference
to the Services and the System; and
5.11 to accept as Subscribers without unfair
discrimination and upon the standard terms and
conditions of trade of the Service Provider from time
to time, customers who have acquired equipment
approved under the T.Act and/or W.T.Act other than
from the Service Provider for use in connection with
the System.
6. UNDERTAKINGS OF DOLPHIN
Dolphin hereby undertakes to the Service Provider during the
term of this Agreement:
6.1 to operate and maintain the System retaining the
right without liability to the Service Provider, to
modify, expand, improve, suspend, maintain or repair
the System or the Services even if this requires
suspension of operation of such;
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6.2 to give to the Service Provider non-binding periodic
forecasts, proposals and projections of the coverage
of the System and the Services to be offered thereon;
and
6.3 to provide to the Service Provider such technical
advice, assistance and information related to the
operation of the System as the Service Provider may
reasonably request. Dolphin reserves the right at its
sole discretion to make reasonable charges for the
provision of such technical advice, assistance and
information as it considers to be beyond that which
it would normally provide without charge.
7. CHARGES AND PAYMENT
7.1 The Service Provider shall pay in respect of its
Subscribers, whether or not the Service Provider has
received payment from its Subscribers, the charges of
Dolphin as set out in the Schedule of Charges as
published from time to time corresponding to those
Services for which each Subscriber Number is
registered. Dolphin reserves the right to modify the
Schedule of Charges at any time and will provide
thirty days notice to the Service Provider of each
such modification, provided that this right shall not
be exercised unreasonably.
7.2 Charges shall be incurred in respect of each
Subscriber Number from the date of Registration.
7.3 The charges set out in the Schedule of Charges shall
be payable to Dolphin by the Service Provider at the
times and in the manner set out therein.
7.4 If the Service Provider fails to pay any such charge
by the due date for payment then Dolphin shall have
the right to charge interest at the rate of four (4)
per cent above the then base rate of National
Westminster Bank plc from the date such charge falls
due until the actual date of receipt of payment by
Dolphin.
7.5 Dolphin may at any time as a condition of the
provision or continuance of provision of the Services
to the Service Provider require security for payment
in the form of bank guarantees or otherwise to the
extent Dolphin at its sole discretion deems
appropriate, provided that this right shall not be
exercised unreasonably. Failure to provide such
security shall be deemed to be a breach of this
Agreement by the Service Provider.
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8. TERMINATION
8.1 This Agreement shall terminate within the Agreement
Period automatically and without notice:
(i) in the event either of the Licences or any
other licence in the name of Dolphin
relating to the operation of the System or
any modification or replacement thereof
expires, is revoked, or is terminated; or
(ii) in the event either party shall become
insolvent or if a receiver is appointed in
respect of its assets or if any order shall
be made or a resolution passed for its
winding up (other than a members voluntary
winding up for purposes of amalgamation or
reconstruction).
8.2 The Service Provider shall have the right to
terminate this Agreement within the Agreement Period
by prior written notice to Dolphin:
(i) in the event Dolphin shall commit a material
breach of any of the obligations on its part
to be performed and (in the case of a breach
capable of remedy) shall fail to remedy the
same within thirty (30) days after notice is
given to Dolphin by the Service Provider
requiring such remedy; or
(ii) for convenience of the Service Provider upon
ninety (90) days prior written notice to
Dolphin.
8.3 Dolphin shall have the right to terminate this
Agreement within the Agreement Period by prior
written notice to the Service Provider:
(i) in the event any payment becoming due to
Dolphin is in arrears for thirty (30) days
after the same shall become payable;
(ii) in the event the Service Provider shall
commit a material breach of any of the
obligations on its part to be performed and
(in the case of a breach of remedy) shall
fail to remedy the same within thirty (30)
days after notice is given to the Service
Provider by Dolphin requiring such remedy;
or
(iii) in the event that sales levels fall below
the minimum sales criteria agreed between
the parties at the time of the execution of
this Agreement or such other criteria as are
agreed between the parties from time to
time, by more than 10% over three successive
months.
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9. RESULT OF TERMINATION
9.1 Upon the expiry or termination of this Agreement
(howsoever caused) all monies then due from the
Service Provider to Dolphin shall become immediately
due and payable. Additionally the Service Provider
shall immediately discontinue any use of the names
"Dolphin" and all other trade names, signs, cards
notices and other display or advertising matter
indicative of Dolphin, or of its business or Services
and shall make or cause to be made such changes in
trade names, signs, cards, notices and other display
or advertising matter so as to distinguish
effectively its business from the subject matter of
this Agreement.
9.2 Upon the expiry or termination of this Agreement
(howsoever caused) but notwithstanding the
termination of this Agreement by Dolphin under
Sub-section 8.3(i), (ii) or (iii) or by the Service
Provider under Section 8.2(ii), the Service Provider
shall use its best endeavor to assign its Subscribers
(and contracts with Subscribers for the Services) to
another Service Provider of Dolphin, or to Dolphin or
any of its subsidiary or associated companies as
instructed by Dolphin, and shall provide accordingly
in its agreements with its Subscribers. At any time
either before or after expiry or termination of this
Agreement, upon Dolphin's request, the Service
Provider shall provide Dolphin with copies of the
Service Provider's agreements with its Subscribers
evidencing such provision. At any time, either before
or after expiry or termination of this Agreement,
Dolphin may write to the Service Provider's present
and former Subscribers to advise them of all other
Service Providers of Dolphin or of its subsidiaries
or associated companies from whom the Subscribers may
obtain the Services after expiry or termination of
this Agreement; and Dolphin or such subsidiaries or
associated companies may themselves provide Services
to the Subscribers or make arrangements for another
Service Provider to provide services to the
Subscribers.
9.3 Expiry or termination of this Agreement shall be
without prejudice to any claims or remedies that
Dolphin may have against the Service Provider and
vice versa accrued up to the date of expiry or
termination or available by reason of a breach of
Sections 9.2 or 14.
10. PROVISION OF SERVICES
10.1 The Services shall comprise such Services provided at
such times, during such periods, in such
circumstances and by such means as Dolphin may from
time to time consider reasonably appropriate.
10.2 Dolphin shall use all reasonable endeavors to provide
the Services in accordance with any specifications
and to any timescales issued by
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Dolphin from time to time but Dolphin cannot
guarantee that such provision will be fault free nor
that it will precisely meet such timescales.
10.3 Dolphin reserves the right:
(i) having given reasonable notice, to change
the number allocated to a Service Provider's
Subscriber or any other code or number
whatsoever allocated by Dolphin from time to
time for use in connection with the
enjoyment of Services from the System;
(ii) in the event of war or the proclamation of
an emergency, to cease summarily to provide
Services or to temporarily suspend service
to the Service Provider and/or its
Subscribers.
10.4 Dolphin shall give such instructions concerning the
use of Services as it considers appropriate from time
to time in the interests of safety, of the quality of
the Services, of other Service Providers and/or
Subscribers or of the System as a whole, and any such
instructions shall, while they are in force be deemed
to form part of this Agreement. Dolphin shall take
such steps as it considers appropriate to bring such
instructions to the notice of the Service Provider
and its Subscribers.
11. ALLOCATION AND REGISTRATION OF SUBSCRIBER NUMBERS
11.1 Upon the request of the Service Provider and subject
to available System capacity, Dolphin shall allocate
a Subscriber Number for a Subscriber and Register
that Subscriber Number and the Services relating
thereto onto the System as soon as is reasonably
practicable.
11.2 Upon the request of the Service Provider Dolphin will
reserve additional contiguous Subscriber Numbers for
a Subscriber to allow for future growth. Dolphin
reserves the right to charge for further Subscriber
Numbers reserved.
11.3 Only those Services which the Service Provider
specifically requests shall be included within the
Registration.
11.4 The Service Provider shall provide to Dolphin
information related to the Subscriber using such
Subscriber Number in the format of the Service Order
Form attached to this Agreement or as modified by
Dolphin from time to time. Such information shall not
be used by Dolphin for any purposes other than that
related to the operation of the System and compliance
with the requirements of the Licences without the
prior written consent of the Service Provider.
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11.5 Once allocated by Dolphin, the Service Provider shall
not transfer or reallocate a Subscriber Number
between its Subscribers, nor shall it assign or
transfer a Subscriber Number to a third party without
prior written consent of Dolphin which consent shall
not be unreasonably withheld. The ownership of
Subscriber Numbers allocated to the Service Provider
shall at all times be vested in Dolphin. Under no
circumstances may the Service Provider or its
Subscribers duplicate a Subscriber Number, registered
by Dolphin, for use on more than one piece of
Subscriber Equipment at the same time.
12. CONNECTION OF OTHER TELECOMMUNICATIONS SYSTEMS AND APPARATUS
12.1 Dolphin shall at the written request of the Service
Provider and subject to the terms and conditions of
this Agreement, permit the connection to the System
of any telecommunications system or apparatus, which
is not a Specified Public Telecommunications System
as defined in the T.Act Licence, provided always
that:
(i) such telecommunications system or apparatus
shall be shown to comply with the Relevant
Standards (as hereinafter defined) or where
none exists Dolphin's standards for the time
being in force and shall have any licences
and approvals which may be necessary under
the provisions of the T.Act and/or the
W.T.Act;
(ii) such telecommunications system or apparatus
shall be shown to comply with the T.Act
and/or the W.T.Act or any other statutory
provision for the time being in force; and
(iii) the Service Provider shall not make any
alteration to such telecommunication system
or apparatus once connected to the System
without the prior written agreement of
Dolphin.
12.2 Dolphin will permit any connection so made to remain
until the expiry or termination or expiry of this
Agreement or until such earlier date as the Service
Provider may request except that Dolphin shall have
the right summarily to disconnect any such connection
where:
(i) such telecommunication system or apparatus
which conformed at any Relevant Standard or
where none exists the Network Operator's
standards in force at the time of connection
to the System, has ceased to do so and does
not conform to any new Relevant Standard or
where none exists the Network Operator's
standards which may become applicable from
time to time; or
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(ii) such telecommunication system or apparatus
is in the opinion of Dolphin liable to cause
death of, or personal injury to, or damage
to the property of Dolphin and its employees
or any person involved in the running of the
System or materially to impair the quality
of the Services provided by means of the
System and the Director General of
Telecommunications has not expressed a
contrary opinion.
12.3 In this condition "RELEVANT STANDARDS" means any
standard which may be specified in a licence granted
under the W.T.Act and/or the T.Act for the running of
a system to which this condition applies.
13. LIMITATION OF LIABILITY
13.1 For the avoidance of doubt Dolphin has no obligation
or duty or liability in contract, tort, for breach of
statutory duty or otherwise beyond that of a duty to
exercise reasonable skill and care in the provision
of the System.
13.2 In any event, Dolphin undertakes no liability
whatever whether in contract, tort, negligence, for
breach of statutory duty or otherwise for the acts or
omissions of other providers of telecommunications
services or systems or for fault in or failures of
their apparatus.
13.3 Dolphin shall not be liable to the Service Provider
for any costs, damages or losses incurred or
sustained by it arising from operation or any failure
whatsoever of the System or failure by Dolphin to
operate or the suspension or non-availability of the
System.
13.4 The Service Provider shall indemnify Dolphin and hold
it harmless in respect of any claims, costs, losses
or damages incurred by Dolphin in relation to any
claim brought by any Subscriber, third party, or by
any customer or employee of the Service Provider in
respect of the operation or failure of operation of
any kind of the System or arising directly or
indirectly from any breach of, or non-compliance with
the terms of this Agreement by the Service Provider
or in respect of any damage caused to the System by
the Service Provider and/or its Subscribers.
13.5 In any event Dolphin liability in contract, tort,
negligence, for breach of statutory duty or otherwise
arising by reason of or in connection with this
Agreement or howsoever otherwise shall be limited to
pound sterling 1,000,000 for any one incident or
series of incidents and pound sterling 2,000,000 for
any series of incidents related or unrelated in any
period of 12 months.
13.6 Each provision of this condition is to be construed
as a separate limitation applying and surviving even
if for any reason one or other of the said provisions
is held inapplicable or unreasonable in any
circumstance and
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shall remain in force notwithstanding the expiry or
termination of this Agreement.
13.7 Nothing in this clause shall exclude or restrict
liability for death or personal injury resulting from
Dolphin's own negligence.
14. CONFIDENTIALITY
All business or technical information disclosed by either
party ("DISCLOSING PARTY") to the other ("RECEIVING PARTY")
shall be treated as confidential unless expressly stated
otherwise in writing and shall not be disclosed to third
parties by the receiving party unless required to be disclosed
by the terms of government licence or regulation under which
Dolphin operates the System without prior written consent of
the disclosing party, provided that information shall not be
regarded as confidential if (a) it is authorized to be
disclosed by the disclosing party or (b) it is already known
by the receiving party, or (c) it is disclosed by a third
party without a breach of confidence, or (d) it is in the
public domain. This undertaking shall survive the expiry or
termination of this Agreement for a period of five years from
the date of such expiry or termination.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 The Service Provider shall be under an obligation to
promote the Services using the "Dolphin" trademark
and logo provided always that the Service Provider
shall comply with such guide-lines and directions
issued by Dolphin from time to time in connection
with such trademark and logo and enter into such
agreements as may from time to time be required by
Dolphin in order to protect the rights of Dolphin
therein.
15.2 All intellectual property rights to the System and
the Services (whether copyright, patents, registered
designs, trademarks or similar rights) shall be
retained by Dolphin and the Service Provider shall
acquire no rights therein by reason of providing the
Services to Subscribers, by virtue of this Agreement,
by principles of estoppel, or otherwise.
15.3 All intellectual property rights in the Service
Provider's services, other than the Services (whether
copyright, patents, registered designs, trademarks or
similar rights) shall be retained by the Service
Provider and Dolphin shall acquire no rights therein
by virtue of this Agreement.
16. RELATIONSHIPS
16.1 This Agreement governs the provision of the Services
by means of the System to the Service Provider to the
exclusion of all other written or
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verbal representations, statements, understandings,
negotiations, proposals or agreements.
16.2 It is hereby agreed and acknowledged that there shall
be no contractual relationship between Dolphin and
the Service Provider's Subscribers by virtue of the
registration by Dolphin of Subscribers as users of
the System and the use of the System by Subscribers
except insofar as is necessary for Dolphin to comply
with the T.Act License and/or the W.T.Act License.
16.3 The Service Provider shall not represent itself to be
the agent of Dolphin for any purpose and shall not
pledge the credit of Dolphin nor incur any other
obligations or liabilities or make any promise or
representations on behalf of Dolphin. This Agreement
shall not create a partnership between the parties
hereto.
16.4 The Service Provider shall ensure that no term or
condition contained in any agreement with its
Subscribers shall contravene the conditions of this
Agreement, and shall be responsible for the making of
charges to Subscribers and collection thereof in
respect of Services.
17. TAXES
The Service Provider shall be responsible for and shall
indemnify Dolphin and hold it harmless against all taxes,
levies and other payments of a similar nature (and in
particular against all defaults of the same) imposed by any
present or future law of the United Kingdom or elsewhere which
may become payable (howsoever arising) as a result of the
Service Provider providing any service to any Subscriber
dependant on or relating to the Services. Such indemnity shall
not include the licence fees payable by Dolphin under the
Licences or any tax on, or assessed by reference to, the
profits of Dolphin.
18. FORCE MAJEURE
Neither Dolphin nor the Service Provider shall be under any
liability for any breach of any provision of this Agreement or
any other failure hereunder if and to the extent that such
breach or failure is as a result of Acts of God, war (whether
declared or not), sabotage, riot, explosion, Government
control, restrictions or prohibitions or any other Government
act or omission whether local or national, requirement to act
in accordance with the Licences, act or default of any
supplier, agent, or subcontractor, industrial disputes of any
kind, physical obstacles or atmospheric conditions or any
other cause beyond the reasonable control of either party.
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19. WAIVER
Any concession or waiver allowed by Dolphin to the Service
Provider shall only be valid if given by Dolphin in writing
and shall neither prevent Dolphin from exercising any of its
rights nor prejudice Dolphin's rights to take any subsequent
action.
20. NOTICES
Any notice required or permitted to be given under this
Agreement shall be in writing and may be given by any means
reasonably calculated to reach the other party including,
without limiting the generality of the foregoing, telex or
first class post addressed to such party at its address as
stated in this Agreement or such other address as shall have
been notified to the first party as being the address for the
receipt of such notices. Such notice if given by first class
post shall be deemed to have been delivered not later than the
second day after posting.
21. HEADINGS AND INTERPRETATIONS
21.1 The headings in this Agreement shall not be deemed to
be part hereof or be taken into consideration in the
interpretation of construction of this Agreement.
21.2 If any of the works or provisions of this Agreement
shall be deemed to be invalid for any reason then
they shall be read as if the invalid provisions had
to that extent been deleted therefrom and the
validity of the remaining provisions of this
Agreement shall not be affected thereby.
22. ASSIGNMENT OF AGREEMENT
This Agreement shall not be assigned either in whole or in
part by the Service Provider to any third party except with
Dolphin's prior written consent and in any event any purported
assignment of this Agreement shall not have any force and
effect unless such assignment is to another Service Provider
which has a subsisting Service Provider Agreement with Dolphin
or associated companies.
23. SUB-CONTRACTING
The Service Provider shall not sub-contract or delegate the
performance of any of its obligations under this Agreement
without the prior written consent of Dolphin. Such consent
shall not be unreasonably withheld where, in the opinion of
Dolphin, the sub-contractor or delegate is sound and
reputable.
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24. VARIATION
Subject to the notification and publication provisions of the
Licence Dolphin shall have the right at any time to make
amendments or variations to this Agreement:
24.1 of a minor nature which are reasonably appropriate
for the provision of the Services; or
24.2 reasonably considered by Dolphin (after consultation
with the Office of Telecommunications) to be made
necessary by any provision of the Licences or changes
thereof.
Any amendments or variations referred to above shall take
effect immediately upon publication by Dolphin.
25. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with English Law.
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IN WITNESS WHEREOF the hands of the duly authorized representative of
the parties the day, month and year first above written.
Signed by: Mark Pearson
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Signature: /s/ Mark Pearson
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For and on behalf of: Dolphin Telecommunications Limited
In the presence of: Philip Russell
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Signature of Witness: /s/ Philip Russell
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Signed by: D.W. Foden
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Signature: /s/ D.W. Foden
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For and on behalf of: Hugo International Ltd.
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In the presence of: David Domour
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Signature of Witness: /s/ David Domour
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