AGREEMENT
on Provision of Traffic Exchange Network Services No. _________
Kyiv ______________, 20____
DAUGHTER COMPANY «UKRAINIAN TRAFFIC EXCHANGE NETWORK» (hereinafter referred to as DC «UA-IX») which is a resident of Ukraine and which shall pay income tax on a common basis represented by Kukovsky Volodymyr, Acting Director, acting by virtue of the Articles of Incorporation on the one part,
and
____________________________________________________________(the Party’s name is specified) which is a legal entity according to the legislation of ___________________________(the state is specified) (AS___________) (hereinafter referred to as the Participant) and which is a non-resident of Ukraine represented by ___________________________________(the position and the name of the person who concludes the Agreement on behalf of the Participant are specified) acting by virtue of ___________________________________________(the Articles of Incorporation, the Power of Attorney, the Provision etc.) on the other part, DC «UA-IX» and the Participant collectively referred to as the Parties, and individually as the Part throughout the text of this Agreement on Provision of Traffic Exchange Network Services, have agreed all property and organizational aspects under below mentioned terms and conditions and have concluded this Agreement on Provision of Traffic Exchange Network Services (hereinafter referred to as the Agreement) on the following
1. GENERAL PROVISIONS
1.1. Each Party shall guarantee that it is by no means restricted by the legislation, another regulatory act or enabling legislation, a court decision or in another way provided by the existing legislation to conclude this Agreement and to fulfil all conditions stated in it.
1.2. DC “UA-IX” and the Participant shall confirm accordingly that conclusion of this Agreement and fulfilment of all conditions provided by it for DC “UA-IX” and the Participant do not contravene the norms of the existing legislation of Ukraine and the norms of the legislation of the country where it is located according to which the Parties’ business or another activity is performed and shall confirm that conclusion of this Agreement and fulfilment of the conditions stated in it do not contravene the provisions of their constituent documents or other Parties’ local acts accordingly as well.
1.3. The Parties shall certify common understanding of the conditions of this Agreement and its legal effect, shall confirm the validity of their intentions when concluding it and also shall confirm that the Agreement does not include signs of simulated and fictitious transactions, that it is not concluded due to a mistake regarding its nature, the Parties’ rights and obligations and due to fraud or combination of adverse circumstances.
1.4. The Parties have agreed the essential conditions during conclusion of this Agreement and there shall be no conditions which can be essential and necessary according to the contents of this Agreement.
1.5. The place where the services are rendered and received shall be: Kyiv, Ukraine.
2. TERMS AND ABBREVIATIONS
2.1. Terms and abbreviations shall be used in this Agreement within the following meaning:
2.1.1. Network – DC «UA-IX» traffic exchange network;
2.1.2. Breach of the Agreement – failure to perform or improper performance of the Agreement, i.e. performance with breach of the conditions prescribed by this Agreement.
2.1.3. Connection rules – obligatory technical regulations stated in Attachment 3 of this Agreement which are binding for all Participants.
2.1.4. Participant – an economic entity which is accepted for the Participants of DC “UA-IX”, in particular which passes the inspection of the technical group, the voting procedure and other procedures approved by DC «UA-IX» successfully.
2.1.5. AS – own autonomous system;
2.1.6. RIPEdb – AS database in RIPE;
2.1.7. RS – interaction between the Participants by BGPv4 by means of routing table exchange between the Participant’s router and the router of DC «UA-IX».
2.2. Other terms, abbreviations and their interpretation which are used in the text of this Agreement shall be determined by the existing legislation of Ukraine.
3. AGREEMENT SUBJECT
3.1. The subject of this Agreement is rendering of the traffic exchange services by DC «UA-IX» to the Participant.
4. TARIFFS AND PAYMENT PROCEDURE
5. RIGHTS AND OBLIGATIONS OF THE PARTIES
5.1. OBLIGATIONS OF DC «UA-IX»
5.1.1. DC “UA-IX” shall provide 4.1. Payment for the services shall be performed according to the tariffs approved by DC «UA-IX».
5.2. The tariffs which are valid at the time of signing of this Agreement are stated in Attachment 1.
4.3. In case of an expected tariff change DC “UA-IX” shall inform the Participants about this within 30 (thirty) days sending a relevant notification.
4.4. The first payment shall be performed by the Participant on the settlement account of DC «UA-IX» within 10 (ten) days of the date of signing of this Agreement and shall consist of the payment for the first month of use and the advance payment for the next month after the month of conclusion of this Agreement.
4.5. Payment for each next month shall be performed by the Participant as an advance payment not later than on the 15th day of the current month of the services receipt by means of transfer of sums on the settlement account of DC «UA-IX», uninterrupted operation of the traffic exchange network equipment.
5.1.2. DC «UA-IX» shall receive bids of potential Participants for connection of them to the traffic exchange network according to the Connection rules stated in Attachment 3 to this Agreement.
5.1.3. DC «UA-IX» shall inform the Participant about connection of each new Participant within 24 hours after connection of a new Participant.
5.1.4. In case of an expected change of the Connection rules DC «UA-IX» shall inform the Participants about this within 15 (fifteen) days.
5.1.5. In case of failure to fulfil the requirements stated in the Connection rules included in Attachment 3 of this Agreement by the Participant DC «UA-IX» shall send a notification about this at the address of the Participant’s service contact person.
5.1.6. DC «UA-IX» shall reconnect the Participant to the traffic exchange network or to disable the quarantine mode for the Participant immediately, but not later than two business hours after fulfilment of an appropriate requirement of DC «UA-IX» by the Participant.
5.1.7. DC «UA-IX» shall be obliged to assign one IP address for the Participant.
5.2. RIGHTS OF DC «UA-IX»
5.2.1. DC «UA-IX» shall have a right to receive payment according to the approved tariffs; and other rights determined for DC «UA-IX» by this Agreement shall be provided.
5.2.2. In case of breach of the Agreement conditions by the Participant DC «UA-IX» shall have a right to able the quarantine mode for the Participant or to disconnect the Participant which is not cancellation of this Agreement.
5.2.3. According to p. 4.4., 4.5., 7.5, 7.6 and 7.8. in case of non-receipt of payment from the Participant within 30 (thirty) calendar days after the invoice issue DC «UA-IX» shall have a right to terminate the Agreement temporarily until the payment is received.
5.2.4. In case of breach of the conditions of this Agreement by the Participant DC «UA-IX» shall have a right to terminate the Agreement with the Participant of the traffic exchange network not returning the connection and service charge.
5.3. OBLIGATIONS OF THE PARTICIPANT
5.3.1. The Participant shall be obliged to comply with the Connection rules carefully.
5.3.2. The Participant shall organize a communication line from its equipment to the switchboard port of the traffic exchange network.
5.3.3. The Participant shall pay for the services of DC «UA-IX» in a timely manner and
in full.
5.3.4. The Participant shall be obliged to inform the Administration of DC «UA-IX» about the taken actions which can influence the interaction between the Participant and the Network or the Network operation timely. Informing shall be performed by means of sending a letter at e-mail of DC «UA-IX».
5.3.5. The Participant shall be obliged to rectify a breach of the Agreement conditions and shall inform DC «UA-IX» about this.
5.4. RIGHTS OF THE PARTICIPANT:
5.4.1. The Participant shall have a right to receive the traffic exchange services.
5.4.2. The Participant shall have other rights provided for the Participant by this Agreement.
6. CONFIDENTIAL INFORMATION
6.1. The Parties shall admit that any information obtained by one Party regarding another Party within the pre-contractual relations of conclusion of this Agreement or within performance of this Agreement is confidential information (a trade secret) except for the information which can be obtained by any person from publicly available sources.
6.2. The Parties shall be obliged to ensure information confidentiality and preservation according to the legislation of Ukraine and this Agreement and to perform its disclosure to the third persons by consent of another Party to the Agreement only except for cases provided by the legislation of Ukraine and this Agreement for an unlimited period of time.
The information which is subject to disclosure in the cases provided in the first block of this paragraph shall be disclosed (transmitted) to the extent required to achieve the purposes according to which it is transmitted.
7. LIABILITY OF THE PARTIES FOR BREACH OF THE AGREEMENT
7.1. In case of breach of an obligation which arises out of this Agreement, the Party shall be liable according to this Agreement and (or) the existing legislation of Ukraine.
7.2. The Party shall not be liable for breach of the Agreement, if it occurs through no fault (intent or carelessness) of this Party.
7.3. The Party shall be presumed to be innocent and shall be not liable for breach of the Agreement, if it proves that it takes all necessary measures regarding proper performance of the Agreement.
7.4. In case of one Party’s equipment damage due to the fault of the other Party the guilty Party shall be obliged to replace the damaged equipment by new or to indemnify the damaged equipment cost at double the rate.
7.5. In case of failure to fulfil the conditions of this Agreement by the Participant DC “UA-IX” shall have a right to disconnect the Participant from the Network or to able the quarantine mode for the Participant. DC “UA-IX” shall be obliged to inform the Participant about failure to fulfil the conditions of this Agreement in writing in advance. Reconnection or the quarantine mode disabling shall be performed immediately, but not later than two business hours after receiving the letter which confirms rectification of the breach by DC «UA-IX».
7.6. In case of breach of the conditions of this Agreement by the Participant DC «UA-IX» shall have a right to terminate the Agreement with the Participant of the traffic exchange network not returning the connection and/or service charge.
7.7. Liability of DC «UA-IX» to the Participant regarding any claims except for the case stated in p. 7.4 shall be limited by the amount paid by the Participant for connection to the traffic exchange network of DC «UA-IX» which is equal to the difference between the first and the second months of service.
7.8. The Parties shall be liable for any direct or indirect, consequential or accidental losses or the losses (including loss of profit) to each other which can be incurred as a result of use or failure to use the services which are the subject of this Agreement.
8. ARBITRATION. APPLICABLE LAW
8.1. This Agreement shall be governed by the laws of Ukraine.
8.2. All disputes connected with this Agreement, its conclusion or such disputes which arise within fulfilment of the conditions of this Agreement shall be settled by negotiation of the Parties’ representatives.
8.3. If the Parties cannot settle a dispute by negotiation, it shall be considered and settled in the International Commercial Arbitration Court under the Ukrainian Chamber of Commerce and Industry. The seat of arbitration is Kyiv, Ukraine. The Parties shall agree beforehand that consideration of the case will be performed in Ukrainian. When settling the dispute and making the decision the Arbitrators shall be guided by the Rules of the International Commercial Arbitration Court under the Ukrainian Chamber of Commerce and Industry and the provisions of the Ukrainian substantive law. The decision of the Arbitrators shall be final and binding for both Parties.
9. FORCE-MAJEURE CIRCUMSTANCES
9.1.1. The Party shall be released from liability determined by this Agreement and (or) the existing legislation of Ukraine for full or partial breach of the Agreement, if it proves that such breach occurs due to the force-majeure circumstances stated in this Agreement provided that their occurrence is acknowledged in the manner specified in this Agreement.
9.1.2. The force-majeure circumstances shall be understood in this Agreement to be an event, a superior force and all other circumstances which are determined in p. 9.1.3. of this Agreement as the grounds for release from liability for breach of the Agreement.
9.1.4. The superior force shall be understood in this Agreement to be any extreme external events which arise without fault of the Parties, beyond their will or against their will or desire and which cannot be foreseen taking ordinary measures and cannot be prevented (avoided) with all circumspection including (without limitation) acts of God (earthquakes, floods, hurricanes, destructions as a result of lightning etc.), biological, technogenic and anthropogenic disasters (explosions, fires, machine and equipment faults, mass epidemics, epizootics, epiphytotics etc.), social unrest (war, military operations, blockades, civil disorders, acts of terrorism, massive strikes and lockouts, boycotts etc.) and also issue of prohibition and restrictive normative acts by the governmental or local authorities, other legal or illegal prohibition and restrictive measures of the above mentioned authorities which make it impossible to fulfil the conditions of this Agreement by the Parties or impede such fulfilment temporarily.
The event shall be understood in this Agreement to be any circumstances which are not considered as the superior force according to this Agreement and which are not directly conditioned by the actions of the Parties and are not connected with them by a causal connection, which arise without fault of the Parties, beyond their will or against their will or desire and which cannot be foreseen taking ordinary measures and cannot be prevented (avoided) with all circumspection and diligence.
9.1.5. Lack of the goods required for performance of this Agreement on the market, lack of the required assets of the Party which breaks the Agreement shall be not considered as the event of non-fulfilment of the obligations by the contractor of the Party that breaks the Agreement.
9.1.5. According to this Agreement the following events shall be considered as the force-majeure circumstances: issue of acts by the authorities and changes of the tariffs and the conditions for rendering of the services of the transportation network operators such as “Ukrtelecom” etc. that have a direct influence on fulfilment of the obligations and all other events which do not depend on the will of the Parties and can have a direct influence on its proper fulfilment.
9.2. Occurrence of the superior force shall be acknowledged by a competent authority which is determined by the existing legislation of Ukraine.
9.3. The Party which intends to refer to the force-majeure circumstances shall be obliged immediately inform the other Party about the force-majeure circumstances and their influence on performance of this Agreement taking into account the instantaneous constraint technical means capabilities and the existing obstacles character.
9.4. If the force-majeure circumstances and (or) their consequences impede performance of this Agreement temporarily, performance of this Agreement shall be terminated for a period within which it is impossible.
9.5. If performance of this Agreement is definitely impossible in connection with the force-majeure circumstances and (or) their consequences for which any Party is not liable, this Agreement shall be considered as terminated from when the impossibility of performance of this Agreement is arisen, however the Parties shall not be released from the obligations determined in p. 9.3 of this Agreement.
9.6. If performance of this Agreement is impossible temporarily in connection with the force-majeure circumstances and (or) their consequences and such impossibility lasts within 90 days and there are no signs of its termination, this Agreement can be dissolved unilaterally by one Party by means of a written statement regarding this sent by postal service to the other Party.
9.7. The consequences of termination of this Agreement including its unilateral termination according to p. 9.5 and 9.6 of this Agreement shall be determined pursuant to the existing legislation of Ukraine.
9.8. If so agreed, the Parties can deviate from the provisions of paragraphs 9.5 and 9.6 of this Agreement and determine their further actions regarding changes of the conditions of this Agreement in an additional agreement.
10. TRANSFER OF RIGHTS
10.1 A Party shall have a right to transfer its rights under this Agreement to its legal successors, branches or subcontractors, whereof the other Party shall be informed not later than 10 (ten) days before the date of transfer of the rights. The Parties shall be obliged to provide copies of the documents certifying the fact of legal succession, a subcontract or establishment of a branch.
11. EFFECT OF THE AGREEMENT
11.1. This Agreement shall be considered as concluded and come into effect from the signing by the Parties and the affixing the Parties’ seals.
11.2. After signing of this Agreement all previous negotiations, correspondence, previous agreements and reports on the intents regarding the issues which are anyway applied to this Agreement shall lose effect.
11.3. Expiration of this Agreement shall not release the Parties from liability for its breach which occurs during the term of this Agreement.
11.4. Changes in this Agreement can be made only if so agreed by the Parties and executed in an additional agreement to this Agreement unless expressly provided to the contrary by this Agreement or the existing legislation of Ukraine.
11.5. The changes made in this Agreement shall come into effect from when an appropriate additional agreement to this Agreement is properly executed unless provided to the contrary by the additional agreement, this Agreement or the existing legislation of Ukraine.
11.6. Additional agreements and attachments to this Agreement shall be its integral part and shall be legally binding, if they are executed in writing, signed by the Parties and affixed by their seals.
11.7. Unless expressly provided to the contrary by this Agreement or the existing legislation of Ukraine, this Agreement can be dissolved if so agreed by the Parties or at the discretion of one of the Parties in cases provided by this Agreement and the Articles of Incorporation of DC «UA-IX» and executed as an additional agreement to this Agreement.
In case of the Agreement dissolution at the discretion of one of the Parties the initiator shall inform the other Party about the intention not later than 10 (ten) days before the expected date of the Agreement dissolution.
11.8. The Party shall be fully liable for the correctness of the details specified by it in this Agreement and shall be obliged to inform the other Party about their changes in writing timely; in case of failure to inform the Party shall bear a risk of adverse consequences connected with it.
11.9. All corrections throughout the text of this Agreement shall be valid and can be taken into account only provided that they are dated, witnessed by the Parties’ signatures and affixed by their seals.
11.10. This Agreement is made with full understanding of its conditions and terms by the Parties in two authentic counterparts which have an equal legal effect – one for each Party.
11.11. This Agreement is concluded in two languages: Ukrainian and English. In case of discrepancies between the texts of this Agreement in Ukrainian and English the text of the Agreement in Ukrainian shall prevail.
12. LEGAL ADDRESSES AND BANK DETAILS