Terms and Conditions:
1 Description of Services
1.1 This document contains the general terms and conditions governing the provision of Services by Ultra One, either directly or through their respective Affiliates or underlying carriers. Additional Service Specific Terms may be contained in a Service Order, and supplement the terms and conditions in this document.
1.2 Either Party, and/or its Affiliates, may order Services (the “Customer Party”) from the other Party (the “Supplier Party”) by completing and submitting to the Supplier Party a request for a Service Order, together with any other relevant information requested by the Supplier Party.
1.3 The Customer Party is responsible for the accuracy of all information submitted to the Supplier Party (including that contained in a Service Order). The supply of Services to the Customer Party is triggered by the Customer Party requesting a Service and the Supplier Party issuing a Service Order if it agrees with the request, which the Customer Party signs, and the Supplier Party then countersigns. The Service Order issued by the Supplier will detail the particulars of the Services to be provided, including, without limitation, the term of the Services, volume requirements, technical and logistical specifications, geographic scope and pricing. The Supplier Party reserves the right to reject a request for a Service Order (a) if the Supplier Party lacks sufficient facilities, equipment, capacity or regulatory authority to provide to the Customer Party the services requested; (b) if the Customer Party is in breach of this Agreement including, without limitation, for non-payment of amounts owed; or (c) if the submitted request contains insufficient information; (d) if the Supplier Party is unable to meet the Customer Party’s requested commencement date for the services; or (e) for any other reasonable reasons. A Service Order shall not become binding on the Parties until the Service Order issued by the Supplier Party is signed by the Customer Party and countersigned by the Supplier Party, upon which it shall be incorporated in, and subject to, the terms set out in the main body of this Agreement.
1.4 If the additional terms and conditions contained in a Service Order (including the Service Specific Terms) conflict with those contained in the main body of this Agreement, the terms and conditions of the Service Order shall prevail to the extent of the conflict.
1.5 The Supplier Party shall supply a Service in accordance with the SLA, if any, for that Service.
1.6 Notwithstanding anything to the contrary set out in this Agreement, the Supplier Party may suspend any applicable Service: (a) immediately and without notice if any misuse of such Service or misconduct for such Service on the part of the Customer Party or its customers would, in the Supplier Party’s reasonable opinion, cause material damage to the Supplier Party’s network, facilities or other property; or (b) upon twenty four (24) hours’ written notice on request of a governmental authority.
1.7 The Supplier Party shall have no liability for any suspension of, or a failure to provide, the relevant Service in these circumstances and, in the case of sub-clause (b), shall use reasonable endeavors to restore full provision of the applicable Services as soon as practicable.
1.8 The Parties agree that the terms of this Agreement apply to the provision and use of all Services included.
1.9 NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
2 Contracting Structure and Scope
2.1 Provision of Services: All Services provided by the supplier party to the Customer party shall be governed by these terms and conditions, the Master Service Agreement, and the signed Service Order Form(s).
2.2 Order of Priority: In the event of a conflict or inconsistency between the terms of documents relating to a Service, the following will be the order of priority: first, the Service Order Form, the Master Service Agreement, and next, the terms and conditions.
2.3 Each Service Order shall set out the term of any Services provided under that Service Order. If no term is specified in a Service Order, the initial term shall be one year from the relevant Ready for Service Date. Upon the expiry of the initial or the then-current term, the term of each Service Order shall automatically be extended until terminated by either Party upon sixty (60) Business Days’ written notice to the other Party.
2.4 If the term specified in a Service Order extends beyond the term of this Agreement, then notwithstanding this Agreement will continue to govern the provision of Services under that Service Order until the term of that Service Order has expired.
2.5 To avoid doubt, termination of a Service Order shall not affect this Agreement or the remaining Service Orders, which shall remain in full force and effect, but termination of this Agreement under clause 6.6 shall automatically terminate all Service Orders. In the event that there is only one Service Order in effect, then termination of that Service Order shall be deemed to be termination of the entire Agreement.
3 Provision and Service Delivery
3.1 This document contains the general terms and conditions governing the provision of telecommunication services indicated in the Service Order that the SUPPLIER PARTY will carry out, either directly and/or through their respective Affiliates or underlying carriers. Additional Service Specific Terms will be contained in a NEW Service Order and supplement the terms and conditions in this document.
3.2 CUSTOMER PARTY may order Services from SUPPLIER PARTY by completing and submitting a request for a Service Order, together with any other relevant information requested by SUPPLIER PARTY. CUSTOMER PARTY is responsible for the accuracy of all information submitted to SUPPLIER PARTY (including that contained in a Service Order).
3.3 The supply of Services to Customer Party is triggered by Customer Party requesting a Service and SUPPLIER PARTY issuing a Service Order if it agrees with the request, which CUSTOMER PARTY signs, and SUPPLIER PARTY then countersigns. The Service Order issued by the SUPPLIER PARTY will detail the Services to be provided, including, without limitation, the term of the Services, volume requirements, technical and logistical specifications, geographic scope, and pricing. A Service Order shall not become binding on the Parties until the Service Order issued by SUPPLIER PARTY is signed by CUSTOMER PARTY and countersigned by SUPPLIER PARTY, upon which it shall be incorporated in, and subject to, the terms set out in the main body of this Agreement.
3.4 If the additional terms and conditions contained in a Service Order (including the Service Specific Terms) conflict with those contained in the main body of this document, the terms and conditions of the Service Order shall prevail to the extent of the conflict, the rest of present Agreement will have the same binding nature.
3.5 SUPPLIER PARTY shall supply a Service in accordance with the committed Service Level Agreement (SLA) in ANNEX B
3.6 During the Service Delivery process, a Service Activation Report (SAR) will be sent by the SUPPLIER PARTY to the CUSTOMER PARTY. This document is the official SUPPLIER PARTY document notification claiming that the Service has been delivered according to the Service Order specifications. The Ready for Service (RFS) date related to a Service Order will be included in the Service Activation Report and will be used as the start billing date for that particular service.
3.7 SUPPLIER PARTY will consider any Service delivery acknowledged and accepted by CUSTOMER PARTY if no contrary written notification has been received within three (3) days after RFS notification in the Service Activation Report (SAR).
3.8 Without limiting the generality of the foregoing, CUSTOMER PARTY acknowledges and agrees that this Agreement accords it no right of recovery for the satisfaction of any cause whatsoever, arising out of or relating to this Agreement, against (a) any supplier of services or equipment to SUPPLIER PARTY in connection with the provision or maintenance of the Service, or (b) any officer, director, employee, agent, partner, or shareholder of (i) SUPPLIER PARTY or (ii) any service or equipment provider other than SUPPLIER PARTY.
3.9 CUSTOMER PARTY operations for the use of the Service shall be such as not to (i) interrupt, interfere with, or impair service over any of the facilities comprising SUPPLIER PARTY network, nor (ii) impair the privacy of any communications over such facilities, cause plant damage, or create hazards to the employees of any owner of the aforementioned facilities or the public.
3.10 CUSTOMER PARTY shall not wholesale in part or in full any service provided by SUPPLIER PARTY to any service provider not expressly specified in this agreement.
4 Pricing and billing
4.1 Pricing of the subscribed service shall be fixed IN THE SERVICE ORDER for the Initial Period term of any Service Order.
4.2 CUSTOMER PARTY shall pay SUPPLIER PARTY for the Service the charges included in the corresponding Service Order.
4.3 All prices set forth are quoted in United States Dollars payable in SIERRA LEONE LEONES at prevailing Bank of Sierra Leone Mid-rate which shall be the account and payment currency.
4.4 Not later than 15 (fifteen) days after the ready for service date of a contracted service, SUPPLIER PARTY shall invoice the amount due, as foreseen in the Service Order.
4.5 Fees for the remaining contracted service, up to the final term, shall be invoiced by the SUPPLIER PARTY monthly for each service month of the contracted capacity unless otherwise specified in the Service Order.
4.6 Full payment shall be made by CUSTOMER PARTY no later than 15 (fifteen) days after receipt of the invoice (the “due date”). If CUSTOMER PARTY disputes an invoice, it may withhold payment of the disputed amount only. Such dispute must be duly notified and well supported with documentation by the CUSTOMER PARTY and shall be settled by both parties no later than 15 (fifteen) days
4.7 That Ultra One, under a letter dated 18th May 2023 with reference NRA/DTD/D&M/MUTI18/05/2023, is exempt from Withholding Tax (WHT) payment. Therefore, CUSTOMER PARTY shall not withhold (WHT) when making payment of invoices to the SUPPLIER PARTY. All payments made should reach Ultra One on or before the payment date.
4.8 CUSTOMER PARTY may reasonably dispute an amount on an invoice and may withhold payment of such disputed amount. In such an event, the Party disputing the invoice will notify the other Party in writing of the disputed amount, with an explanation of the reasons therefore as soon as possible. Following notification of a disputed invoice charge, the parties will use their reasonable efforts to resolve the disputed amount within 15 days. Notwithstanding the aforesaid, if the dispute in question is less than a variance of (+/-) 5%, the paying party shall pay the invoiced amount pending the resolution of the dispute.
4.9 Unless otherwise specified in the Service Order, early termination fee for a service will be considered as the total amount of pending payments until contractual end date or renewal date as specified in Service Order.
4.10 In case the contractual periods are higher than one year, subsequent fees for the remaining contracted capacity period, up to the final term, shall be invoiced by the SUPPLIER PARTY monthly for each service month of the contracted capacity unless otherwise specified in the Order Form.
5 Late payments
5.1 Any undisputed payment required under this Agreement that is not paid on the due date shall accrue interest at the rate of 2% (two percent) per month.
5.2 Late Payment Interest shall be accrued against undisputed amounts from the day following a 15 (fifteen) day grace period provided to CUSTOMER PARTY after the payment due date until such payment is received in full by SUPPLIER PARTY, and such amounts shall be included in subsequent autonomous invoices issued to CUSTOMER PARTY.
5.3 In case of invoices for undisputed amounts remaining unpaid for more than 15 (fifteen) days from the due date, SUPPLIER PARTY shall be entitled to immediately suspend the Service, provided 15 (fifteen) days’ written notice of suspension has been addressed to CUSTOMER PARTY and has remained without effect.
5.4 The CUSTOMER PARTY shall ensure that payment reaches the SUPPLIER PARTY on the due date. In addition to the termination clause set out in this agreement, the SUPPLIER PARTY shall be entitled to disconnect the CUSTOMER PARTY 15 days from the due date of the invoice.
6 Billing Schedule & Escalation
6.1 Invoice Date: Supplier Party shall submit invoices to Customer Party on the 1st working day of every month via email. If the 1st falls on a weekend, the invoices shall be submitted on the Friday preceding that weekend.
6.2 Due Date: Full payments of the invoiced value shall be made no later than 15 (Fifteen) days after the invoice date.
6.3 SUPPLIER PARTY shall send an automated payment reminder via email within 15 Days of sending the invoice
6.4 Service Disconnection Notice: Service(s) related to the pending undisputed amount shall be automatically disconnected 30 days after the sending of the invoice. Please note that if incomplete payments are made, the above escalation matrix shall still stand until the complete invoice value is paid
7 Service Level Agreement
7.1 SUPPLIER PARTY service level agreement for this service is specified as ANNEX A of this Agreement and will be enclosed with a Service Order when applicable.
7.2 In case special SLA parameters or values are required from the CUSTOMER PARTY over the standards presented in ANNEX A, those new SLA values will be included in the Service Order Form or amended within Annex A SLA itself.
8 Penalties
8.1 If SUPPLIER PARTY fails to meet the SLA, CUSTOMER PARTY shall be entitled to a credit if the Services or any portion thereof fails to meet the applicable service specifications (“Outage Credits”) and SLA parameters.
8.2 Outage Credits shall be equal to pro rata Service Fees due for that period of time during which there is a continuing and uninterrupted failure to meet the service specifications and SLA.
8.3 Notwithstanding the Clause above, a Confirmed Outage shall not have occurred to calculate an Outage Credit when due to any of the following:
8.3.1 Failure or non-performance of any Customer-provided facilities or equipment;
8.3.2 Fault, negligent act or failure to act of Customer, its employees or agents;
8.3.3 Preventive maintenance and/or service expansion as may be necessary to maintain the Services in satisfactory operating condition following notification to Customer;
8.3.4 Force Majeure conditions
8.3.5 Termination of the service order under herewith.
8.3.6 Restriction from the Government for providing service, in full or part thereof, for any period as specified by them.
9 Credit
9.1 In order for Customer Party to receive credit, a claim for such credit must be sent in writing to SUPPLIER PARTY within thirty (30) calendar days from the date the event giving rise to the claim for the credit occurred.
9.2 The claim must provide relevant details such as trouble description, date, and time of the service issue, and the credit claimed
9.3 If SUPPLIER PARTY determines it is in breach of a Service Level Agreement and Service availability and Performance, and CUSTOMER PARTY is entitled to a credit, SUPPLIER PARTY must credit CUSTOMER PARTY with the applicable credit within one calendar month following receipt of the written claim for the rebate.
10 Responsibilities of the Customer Party
10.1 Unless otherwise stated in a Service Order, the Customer Party will, without limitation, if applicable:
10.1.1 at its own expense, provide all reasonable preparations required to comply with the installation and maintenance specifications of the Supplier Party, its Affiliates or underlying carriers, including (but not limited to) arranging access to any of the rights-of-way, conduits and equipment space necessary for the Supplier Party to provide Services to the Customer Party’s sites; and
10.1.2 Be responsible for the costs of relocation of Services once installed.
10.2 The Customer Party will, if applicable, provide or procure at the Customer Party’s sites or other sites to which the Services are to be provided (together ‘’Customer Party Sites’’), – (without limitation) the necessary equipment, protective apparatus, space, conduits, ventilation, air conditioning and electrical power (“Customer Party Facilities”) required to maintain the facilities used to provide Services to the Customer Party’s Sites without charge or cost to the Supplier Party in accordance with the Supplier Party’s specifications. The Customer Party Facilities will be made available to the Supplier Party, its Affiliates, or underlying carriers on a timely and reasonable basis. The Customer Party will be responsible for maintaining or procuring the maintenance of the Customer Party Sites as safe places to work, which are insured against fire, theft, vandalism, and other casualties. The Customer Party shall carry out adjustments, modifications, alterations, repairs, or replacements at its own expense to any Customer Party Facilities when reasonably required by the Supplier Party. The Customer Party will also be responsible for ensuring that the Customer Party Facilities comply with all Applicable Laws and any provisions of this Agreement. Where the Customer Party is not the owner of any one or more of the sites to which the Services are to be provided, the Customer Party shall obtain any permission from the owner of such premises that may be required and the Customer Party hereby indemnifies the Supplier Party against all damages and claims resulting from the failure to obtain such permission relating to the installation or removal of the Services. The Supplier Party may immediately suspend, and shall not be liable for a failure to supply, the relevant Services, if the Customer Party is in breach of this Clause. The Supplier Party shall confirm such suspension by written notice within 48 hours after the event.
10.3 The Customer Party will comply with all Applicable Laws relevant to this Agreement and its use of the Services. The Customer Party will be responsible for obtaining and maintaining all necessary licenses, permits, and approvals required by any and all governmental authorities to permit the Customer Party to receive Services and comply with its obligations under this Agreement. The Customer Party further represents that its use of Services will be in accordance with such licenses, permits, and approvals, and that it will not use Services for any unlawful or unauthorized purpose. [The Customer Party hereby indemnifies the Supplier Party from and against all costs, losses, damages, claims or proceedings which the Supplier Party may incur, suffer or for which it becomes liable, arising out of any breach of this clause 13.3, except where due to gross negligence or willful misconduct.
10.4 The Customer Party hereby indemnifies the Supplier Party from and against any loss of or damage to the Supplier Party Equipment located on the Customer Party’s Sites which the Supplier Party incurs, suffers or for which it becomes liable in connection with the negligence or willful misconduct of the Customer Party (or the owner of the site), or its breach of this Agreement (including any Service Order). Upon expiration or termination of a Service Order, the Customer Party will promptly return to the Supplier Party any equipment and other property owned by the Supplier Party, its Affiliates, or underlying carriers and provided to the Customer Party.
10.5 The Customer Party will not, nor will it permit or assist others to, and will ensure that its own employees, customers, and third parties do not misuse, abuse, or fraudulently use the Services, including, but not limited to, the following:
10.6 Obtaining or attempting to obtain services by any means or device with the intent to avoid payment; or
10.7 Unauthorized access, alteration, destruction, or any attempt to access any information of a Supplier Party by any means or device; or
10.8 Using Services to impair or interfere with the use of equipment or facilities of the Supplier Party, its Affiliates or underlying carriers by other customers or authorized users, or in violation of the law or aid of any unlawful act; or
10.9 Using Services to impair or interfere with the privacy of any communications; or
10.10 Using Services to send, transmit or communicate any material, data, images or information which is (a) in breach of any Applicable Law, code of practice or acceptable use policy; or (b) defamatory, false, abusive, indecent, obscene or menacing or otherwise offensive; or (c) in breach of confidence, copyright or other intellectual property rights, privacy or any other right of any third party.
10.11 The Customer Party will take every reasonable precaution in its use of the Services to prevent contamination of any software or hardware or diffusion of any software or hardware contamination, including computer viruses.
10.12 The Customer Party shall be solely responsible for, and shall be the controller of:
10.12.1 The content of information and communications transmitted by its use of the Services; and
10.12.2 The Customer Party’s use and publication of communications and/or information using the Services.
10.13 Without limiting any other rights and remedies of the Supplier Party, if the Customer Party continues to engage in any activities in breach of this clause after written notice from the Supplier Party and a 30 day cure period, the Supplier Party may suspend its performance and/or terminate the relevant Services with no further obligation to the Customer Party, provided that the Supplier Party shall be entitled to immediately suspend or terminate the relevant Services (without a cure period) if, in the Supplier Party’s reasonable opinion, it is at risk of incurring legal liability with the Customer Party’s breach of this clause. In the event of such termination, the Customer Party shall be liable for Termination Payments.
11 Supplier party equipment and intellectual property
11.1 Supplier Party Equipment shall at all times remain the sole and exclusive property of the Supplier Party, its Affiliates or underlying carriers, and Customer Party shall have no interest or rights in it except for quiet possession and the rights to use such Supplier Party Equipment pursuant for the term of this Agreement and any relevant Service Order. The Customer Party shall obtain the prior written approval of the Supplier Party before connecting any equipment to the Supplier Party’s or its Affiliates’ or underlying carriers’ networks or the Supplier Party Equipment.
11.2 Either Party hereby indemnifies the other Party from and against all liabilities, costs, expenses, damages and losses suffered, incurred, or for which a Party becomes liable, arising out of or in connection with any claim made in respect of death or for personal injury or damage to property caused by a Party’s negligence in connection with the storage or use of a Party’s Equipment on the Customer Party’s premises.
11.3 Unless otherwise provided for in a Service Order, all intellectual property belonging to a Party or its licensors prior to the Effective Date or the date of any relevant Service Order, and all modifications to it, will remain vested in that Party or its licensors.
12 Acceptance and testing
12.1 The Supplier Party shall provide the Customer Party with written notice once the Services are deemed ready and available for use. The Customer Party will have five (5) Business Days (or such other period as is agreed in any Service Order) to test the Services, at the Customer Party’s own expense, and notify the Supplier Party in writing if the Services are in material non-compliance with the applicable technical specifications outlined in the relevant Service Order.
12.2 If no written notice is received from the Customer Party within such five (5) Business Day period (or such other period agreed in any Service Order), the Customer Party shall be deemed to have accepted the Services and the “Ready for Service Date” shall be the date on which the Supplier Party provided the notice of availability to the Customer Party. If the Customer Party delivers notice of material non-compliance within the five Business Days (or other agreed) period, the Supplier Party shall promptly take such reasonable action as is necessary to correct any such non-compliance in the Services and shall notify the Customer Party of a new Ready for Service Date upon correction. The Customer Party shall be charged on and from the Ready for Service Date.
13 Liabilities and indemnifications
13.1 Indemnification
13.1.1 Except as expressly provided otherwise herein or as required by applicable law, the Party using Services hereby covenants and represents that it will hold the other Party harmless for and against all suits, claims, liabilities, losses, damages and expenses (including legal expenses) of any kind or character, including injury to person or damage to property and infringement of property rights, alleged, charged or otherwise asserted by third persons, arising out of or in connection with the gross negligence or willful misconduct of the Party using service, its employees, agents, or independent contractors.
13.1.2 The Indemnified Party agrees to promptly notify the Indemnifying Party of any written claims or demands against the Indemnified Party for which the Indemnifying Party is responsible hereunder and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations under this Section except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. Indemnified Party shall be entitled, at its option, to participate in and observe the proceedings at its own cost and expense.
13.2 Limitation of Liability
13.2.1 Either Party’s liability in contract, tort, or otherwise including any liability for negligence howsoever arising out of or in connection with the performance of the Party’s obligations under this Agreement shall be limited to direct damages and in no case shall either Party’s liability exceed Hundred percent (100%) of one month’s recurring charge for the affected service provided under this Agreement. In no case shall a Party be liable to the other Party under this Agreement for any loss of revenue, business, contracts, anticipated savings, or profits, or for any indirect or consequential loss howsoever arising.
13.2.2 Neither Party shall be liable for any act or omission of any other entity furnishing equipment or facilities to the other Party either directly or indirectly, nor shall either Party be liable for any damages or losses due to the fault or negligence of the other Party in conjunction with the Service.
13.2.3 Notwithstanding any other provision of this Agreement, neither Party shall be liable to the other Party if changes in any of its facilities, operations, procedures, or Service:
13.2.3.1 Render obsolete any equipment or facilities provided by the other Party in conjunction with its use of the Service;
13.2.3.2 Require modification, alteration, or relocation of such equipment or facilities; or
13.2.3.3 Otherwise, affect the performance of such equipment or facilities.
14 Force majeure
14.1 Neither Party shall be liable for its delay of performance or its failure to perform hereunder due to causes beyond its control, including, but not limited to, acts of God; fire, flood, or other catastrophes; any law, order, regulation, or request of the local government or other government, or any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lock-outs, work stoppages, failure of suppliers to perform, or other labor difficulties.
14.2 If, caused by a force majeure event, SUPPLIER PARTY is unable to carry out its obligations under this Agreement, the obligations and liabilities will be temporarily suspended to the extent made necessary by, and during the continuance of, such force majeure event, provided that the SUPPLIER PARTY use reasonable efforts to mitigate its effects and promptly justifies and gives CUSTOMER PARTY written notice of such force majeure event, specifying the nature, extent and expected duration of it.
14.3 In addition, if an event of force majeure prevents SUPPLIER PARTY from providing the Service for more than 2 (Two) months, CUSTOMER PARTY may terminate this Agreement or any of the Service Orders affected, without liability for any early termination fee or charges by sending within Ten (10) days a notice with immediate effect to SUPPLIER PARTY.
15 Governing Law and Dispute Resolution
15.1 The Parties must negotiate in good faith to settle, within Thirty (30) days, any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement or the Service.
15.2 Subject to the other provisions of this Agreement, the Parties must continue to comply with their respective obligations during the pendency of a dispute.
15.3 Failing such amicable settlement after 30 (thirty) days from the date the Parties first discuss the disputes, controversies or claims, each Party may escalate the matter to management level of both Parties for resolution. If no solution can be reached after 30 (thirty) days, the matter shall be escalated to senior management level to determine the need for arbitration.
15.4 Except where precluded by the subject in dispute, the Parties may mutually agree to continue performing their respective obligations under this Agreement while the dispute is being resolved unless and only until any dispute is submitted to arbitration.
15.5 This Agreement shall be governed by and construed in accordance with the laws of Sierra Leone.
15.6 Any dispute resulting from the interpretation or execution of this agreement shall be subject to the exclusive jurisdiction of the courts of Sierra Leone. Each Party may refer the dispute for arbitration, to be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) in effect at the time of the arbitration. The seat of arbitration shall be Sierra Leone, all proceedings shall be conducted in the English language, and the Arbitrators appointed under the said Rules. The cost of arbitration, including the fees and expenses of the arbitrator(s) and attorney(s), shall be shared equally by the Parties unless that award provides otherwise
15.7 The arbitral decision will be final and binding upon the Parties.
15.8 If either Party disputes the amount in an invoice from the other due to Prices, the disputing Party may withhold such disputed amount from its payment, provided such Party notifies the billing Party of the dispute and submits supporting documentation prior to the Due Date as indicated on the invoice. For avoidance of doubt, the disputing Party can only withhold from its payment the difference between the amount billed and the amount the disputing Party deems correct. Undisputed amounts or the undisputed part of items under dispute are to be settled in full.
15.9 A disputing Party has up to fifteen (15) days from receipt of the invoice to notify the billing Party of any disputed amount, and proper documentation must be submitted by the disputing party in order to resolve the dispute.
15.10 Disputes raised more than sixty (60) days after the receipt of the invoice shall be deemed invalid, absent manifest error.
15.11 Failure to provide documentation by the disputing party within 60 days of receipt of the invoice will create an irrefutable presumption of the correctness of the amount on the original invoice. Supporting documentation provided by the disputing Party is deemed acceptable if the Party rendering the invoice cannot provide supporting documentation agreed upon as per the invoice, in which case the invoicing Party must issue a revised invoice or a Credit Note. If the Invoicing party provides supporting documentation detailing the amount agreed upon, the amount as per the original invoice will be deemed correct and the dispute resolved. Settlement related to the dispute shall be paid to the CUSTOMER PARTY within Thirty (30) days.
16 Termination of the Agreement and the Order Form
16.1 In case of failure by either Party to fulfil its obligations under this Agreement or an Order Form, which failure has not been remedied within 30 (thirty) days following written notice of such failure, the Party giving notice of failure may terminate the affected Order Forms, provided a 15 (fifteen) days prior written notice of termination has been addressed to the other Party. If any Party terminates the Agreement or a specific Order Form under this provision, it shall not be responsible for any early termination charges.
16.2 Both Parties retain all rights to claim payment of all accrued amounts. In case of failure by any party, the other shall be entitled to claim reimbursement of any amounts corresponding to upfront payments already provided.
16.3 Either Party is also entitled to terminate with immediate effect the Agreement if the other Party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if any of its assets are the subject of any form of seizure, or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver or administrator is appointed over its assets (or the equivalent of any such event in the jurisdiction of such other Party). If any Party terminates the Agreement or a specific Order Form under this provision, it shall not be responsible for any early termination charges.
16.4 Except as otherwise provided in this Agreement, if CUSTOMER PARTY terminates the specific Order Form without cause before the Initial Period term of each capacity contracted, SUPPLIER PARTY shall be entitled to be indemnified, by invoicing CUSTOMER PARTY, immediately after the termination date, of 100% (hundred percent) of the amount that would be due (if applicable) until the end of its respective Initial Period term (“Cancellation Charges”) without prejudice to the payment commitments from CUSTOMER PARTY for the Services delivered by SUPPLIER PARTY up to that date. In this event, CUSTOMER PARTY shall notify SUPPLIER PARTY in writing of its intention to terminate at least 30 (thirty) days before the desired termination date. For the avoidance of doubt.
16.5. The SPPLIER PARTY shall be entitled to terminate this Agreement for nonpayment of services. The defaulting party shall be notified of such default and shall be entitled to 10 days to remedy the default. Failing which, the Party not in default shall be entitled to terminate the agreement.
16.6. The SUPPLIER PARTY shall be entitled to immediately stop providing services for the CUSTOMER PARTY once the Agreement is terminated.
17 Compliance
17.1 Each party should conform to international legislation and ensure that their behavior conforms to the Legal Compliance standards applicable to their country.
17.2 In the event of any act or attitude from CUSTOMER PARTY against SUPPLIER PARTY’s compliance program, SUPPLIER PARTY will be able to cancel the Agreement and any active Service Order immediately with no right to compensatory allowances either any obligation with CUSTOMER PARTY without limiting the foregoing legal actions that future legal implications that might arise.
17.3 In the event that SUPPLIER PARTY leases the use of IPs subnets to CUSTOMER PARTY, CUSTOMER PARTY is solely responsible for the use of those IPs and commits not to do any action contrary to applicable international laws or the national laws of the parties.
17.4 In the event of illegal use of the IPs, SUPPLIER PARTY will limit the use of the subnetworks, cancelling the Service Order
18 Miscellaneous
18.1 Scheduled Maintenance: When scheduled maintenance requires interruption to the Services, SUPPLIER PARTY will provide CUSTOMER PARTY with one week’s prior written notice and work with CUSTOMER PARTY to minimize such interruptions and use commercially reasonable efforts to perform such maintenance outside CUSTOMER’s normal business hours;
18.2 Data Protection: During the performance of this Master Service Agreement (MSA) and Service Order (SO), it may be necessary for SUPPLIER PARTY to process and store billing, utilization and other data necessary for the operation of the Services and for the performance of its obligations under this MSA and the SO. CUSTOMER PARTY hereby agrees that nothing in this Agreement will prevent SUPPLIER PARTY carrying out any data processing operations (including but not limited to the retention and disclosure of data) for SUPPLIER PARTY to comply with applicable laws or regulatory obligations as may be required from time to time however CUSTOMER PARTY should be informed of such activity.
18.3 Severability: If any provisions in this MSA or SO or any documents executed in connections with this MSA shall be invalid, illegal or unenforceable in any respect under applicable law, then the validity, legality and enforceability of the remaining provisions contained in this MSA or such other documents shall not in any way be affected or impaired and the invalid provision shall be replaced by a valid provision upon mutual agreement by the Parties.
18.4 Counterparts: The MSA may be executed in several counterparts, each of whom shall be deemed an original, and all such counterparts shall constitute the same instrument.
19 Representations, Warranties and Covenants
19.1 SUPPLIER PARTY and CUSTOMER PARTY warrant to, and agree with the other that:
19.1.1 It has the right, power, and authority to enter into and perform its obligations under this Agreement;
19.1.2 It has taken all requisite partnership or corporate action, as applicable, to approve execution, delivery, and performance of this Agreement, and that this Agreement constitutes a legal, valid, and binding obligation upon itself;
19.1.3 All consents, permissions, agreements, licenses, and authorizations necessary for the performance of its obligations under this MSA have been obtained (or will be obtained in a timely manner).
20 Regulatory events and regulations
20.1 This Agreement is made expressly subject to all present and future valid orders, approvals, directives, and regulations of any regulatory body having jurisdiction over the subject matter of this Agreement and to the laws of Sierra Leone, or any other governmental agency having jurisdiction over the Parties. If this Agreement, or any of its provisions, shall be found contrary to or in conflict with any such order, rule, regulation, directive or law, the Agreement or such provision(s) shall be deemed modified to the extent necessary to comply with any such order, rule, regulation, directive or law and shall be modified in such a way as is consistent with the form, intent or purpose of this Agreement.
21 No agency
21.1 Neither Party is authorized to act as an agent for, or legal representative of, the other Party, and neither Party shall have the authority to assume or create any obligation on behalf of, in the name of, or binding upon the other Party. No provisions of this Agreement will be considered to constitute a joint venture, partnership, or agency between the Parties or to merge the assets, liabilities, and undertakings of the Parties.
22 Responsibilities of the Parties
22.1 The Parties agree that they shall provide the Services to each other, exercising the reasonable skill and care to the standard of a competent telecommunications operator.
22.2 Each Party shall notify and advise the other Party as soon as possible of any facility failure arising or likely to arise from any cause within its area of operation that has or is expected to cause protracted interruption of service between SUPPLIER PARTY and CUSTOMER PARTY and will use reasonable endeavors to clear any failure resulted within agreed terms herein.
23 Entire agreement and amendments
23.1 The present Master Services Agreement and its respective Order Forms and SLAs (if applicable) constitute the entire agreement between the Parties related to the object.
23.2 Modifications to this Agreement, or to any of the terms or conditions contained herein, shall be effected using a written amendment to this Agreement, to be signed on behalf of each Party by a representative duly authorized to do so.
24 Notices
24.1 Unless otherwise specified in writing, all notices, requests, demands, and other communications under the present Agreement or in connection herewith shall be made to the Parties in writing to the addressee at the following addresses: The Valley Residence, Aberdeen Roundabout, Freetown, Sierra Leone.
25 Confidentiality
25.1 “Confidential Information” means the terms of this Agreement including all Service Orders and other information of any type and form related to the Agreement and the Services that the receiving Party (“Recipient”) knows or has reason to know is confidential, proprietary or trade secret information of the other Party (“Discloser”), either a) because the information is marked as confidential or proprietary at the time of disclosure or promptly after disclosure or b) because of the nature of the information and the context in which it was disclosed. Without limitation, information concerning business models and strategies, network design and traffic, Service performance, customers, requirements, and pricing is in all cases deemed to be Confidential Information. The term “Confidential Information” does not include information that: i) was in Recipient’s possession before receipt from Discloser free from restriction as to disclosure; ii) is independently developed by or for Recipient without reference to Discloser’s Confidential Information; iii) is rightfully received by Recipient from a third party without a duty of confidentiality; or iv) is or becomes available to the public through no fault of Recipient.
25.2 The Recipient shall keep the Discloser’s Confidential Information confidential, and may use such Confidential Information only in connection with this Agreement and relevant Service Orders, and may not disclose any such Confidential Information except as follows:
25.3 to employees, agents, contractors, or professional advisers and consultants of the Recipient who have a need to know and who have been informed of the Recipient’s obligations under this Agreement;
25.4 when disclosure is required under Applicable Law, if the Recipient first gives the Discloser notice of the required disclosure and co-operates with the Discloser, at the Discloser’s expense, in seeking reasonable protective arrangements (however, the Receiver is not required to act in a manner which would result in sanctions or other penalties); or
25.5 with the Discloser’s prior written consent to the disclosure.
25.6 The Recipient’s obligations three (3) years following disclosure of the relevant Confidential Information.
25.7 The Recipient shall be primarily liable to the Disclosure for the compliance of each person. The Recipient will preserve all proprietary markings on the Discloser’s Confidential Information provided to the Recipient. At the Discloser’s request, the Recipient will return all originals and copies of Confidential Information to the Discloser or securely destroy it and certify its destruction.
25.8 All information exchanged under the Agreement is provided “AS IS”, without warranty of any kind.
25.9 Each Party acknowledges that its breach or threatened breach may cause the Discloser irreparable harm, which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Recipient agrees that equitable relief, including a temporary or permanent injunction, is an available remedy in addition to any legal remedies to which the Discloser may be entitled.
26 Notices
26.1 All notices, requests, or other communications under this Agreement shall be in writing, addressed to the Parties at the addresses set out in the Service Order, or if there is no address set out there, the address set out at the front of this Agreement.
26.2 Notices or requests must be in writing in the English language and, in the case of notices, must be delivered by a method providing for proof of delivery (including express courier, but not facsimile or email). Any notice or request will be deemed to have been given on the date of receipt. Notices and requests must be delivered to the addresses referred to above or such other address designated by written notice to the other Party.
27 Anti-bribery
27.1 It shall be a condition of this Agreement that, in pre-contract negotiations and the performance of the Services:
27.2 The Parties have and shall at all times comply with the terms of the Sierra Leone Anti-Corruption Act 2008, including, for the avoidance of doubt, implementing appropriate policies, training, and record-keeping; and
27.3 The Parties will take all necessary steps to ensure that those conducting business on their behalf, including but not limited to their Workers, comply at all times with the Sierra Leone Anti-Corruption Act 2008 (as amended)
27.4 For this document, “Workers” means all individuals working at all levels and grades for the Parties including but not limited to senior managers, officers, directors, employees, consultants, contractors, trainees, seconded staff, homeworkers, casual workers, agency staff, volunteers, interns, agents or any other person associated with the either Party.
27.5 Either Party shall be entitled to immediately terminate this Agreement at any time by written notice to the other Party (and without a payment in lieu of notice) if that Party (or its personnel) are guilty of any fraud, dishonesty, act of bribery [or acts in any manner which in the opinion of the affected Party brings or is likely to bring it into disrepute or is materially averse to its interests.
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