exv4w4



 



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SERVICES AGREEMENT


By and among

EQUANT N.V.

And

SOCIÉTÉ INTERNATIONALE DE

TÉLÉCOMMUNICATIONS AÉRONAUTIQUES S.C.


And


SITA INFORMATION NETWORKING

COMPUTING N.V.

 

 



	 	 	 
	

	Services Agreement	 	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 









 



Commercial-in-Confidence







TABLE OF CONTENTS



	 	 	 	 	 	 	 	 	 	 	 	 	 
	RECITALS	 	 	1	 
	 	1.	 	 	 	DEFINITIONS AND INTERPRETATION	 	 	2	 
	 	 	 	 	 	1.1.	 	 	Definitions
	 	 	2	 
	 	 	 	 	 	1.2.	 	 	Interpretation
	 	 	2	 
	 	2.	 	 	 	TERM	 	 	2	 
	 	3.	 	 	 	SERVICES	 	 	3	 
	 	 	 	 	 	3.1.	 	 	Services
	 	 	3	 
	 	 	 	 	 	3.2.	 	 	Services Under Post-Effective Date Agreements Not Included
	 	 	3	 
	 	 	 	 	 	3.3.	 	 	Branding and Marketing
	 	 	3	 
	 	4.	 	 	 	CHANGES IN THE SCOPE OF SERVICES	 	 	4	 
	 	 	 	 	 	4.1.	 	 	Commissioning of Requested Services
	 	 	4	 
	 	 	 	 	 	4.2.	 	 	Product Council
	 	 	4	 
	 	 	 	 	 	4.3.	 	 	Development of New Products and Services
	 	 	4	 
	 	 	 	 	 	4.4.	 	 	Access to Product Marketing Functions
	 	 	6	 
	 	5.	 	 	 	NETWORK, NETWORK PLANNING AND NETWORK EXPANSION	 	 	6	 
	 	 	 	 	 	5.1.	 	 	Continuity of Network Services Worldwide
	 	 	6	 
	 	 	 	 	 	5.2.	 	 	Network Planning Committee
	 	 	8	 
	 	 	 	 	 	5.3.	 	 	Network Modification Funding
	 	 	8	 
	 	 	 	 	 	5.4.	 	 	Step-In Rights
	 	 	11	 
	 	 	 	 	 	5.5.	 	 	Network Operational Performance Committee
	 	 	14	 
	 	6.	 	 	 	SERVICE PROCEDURES	 	 	14	 
	 	 	 	 	 	6.1.	 	 	Annual Review
	 	 	14	 
	 	 	 	 	 	6.2.	 	 	Implementation of Approved Executive Committee Resolutions
	 	 	14	 
	 	 	 	 	 	6.3.	 	 	Co-operation
	 	 	15	 
	 	 	 	 	 	6.4.	 	 	Transfer of Global One Contracts with the Air Transport Community
	 	 	15	 
	 	 	 	 	 	6.5.	 	 	Operations and Procedures Manual
	 	 	15	 
	 	 	 	 	 	6.6.	 	 	Call Centres
	 	 	16	 
	 	 	 	 	 	6.7.	 	 	Outsourcing Support
	 	 	16	 
	 	 	 	 	 	6.8.	 	 	Type A Messaging Support
	 	 	16	 
	 	 	 	 	 	6.9.	 	 	Class A Addresses
	 	 	16	 
	 	7.	 	 	EXCLUSIVITY AND NON-SOLICITATION	 	 	17	 
	 	 	 	 	 	7.1.	 	 	Effective Period
	 	 	17	 
	 	 	 	 	 	7.2.	 	 	Exclusive Provider of Network Services
	 	 	17	 
	 	 	 	 	 	7.3.	 	 	SITA INC Outsourcing or Merger Activity
	 	 	21	 
	 	 	 	 	 	7.4.	 	 	Equant Non-Solicitation Obligation
	 	 	24	 
	 	 	 	 	 	7.5.	 	 	SITA Group Companies Non-Solicitation Obligation
	 	 	24	 
	 	 	 	 	 	7.6.	 	 	Limitation
	 	 	24	 
	 	 	 	 	 	7.7.	 	 	Linkage of the Related Provisions
	 	 	25	 
	 	 	 	 	 	7.8.	 	 	Effect of Deletion or Amendment of Related Provisions
	 	 	25	 
	 	 	 	 	 	7.9.	 	 	Breach of Exclusivity and Non-Solicitation Provisions
	 	 	26	 





	 	 	 
	

	Services Agreement	i	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 









 



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	 	8.	 	 	 	SERVICE LEVELS	 	 	30	 
	 	 	 	 	 	8.1.	 	 	General
	 	 	30	 
	 	 	 	 	 	8.2.	 	 	Failure to Perform
	 	 	30	 
	 	 	 	 	 	8.3.	 	 	Service Credits
	 	 	30	 
	 	9.	 	 	 	TAXES	 	 	31	 
	 	 	 	 	 	9.1.	 	 	General
	 	 	31	 
	 	 	 	 	 	9.2.	 	 	Billing Entities, Billed Entities and Remitting Entities
	 	 	31	 
	 	10.	 	 	 	PRICING OF PRODUCTS AND SERVICES	 	 	31	 
	 	 	 	 	 	10.1.	 	 	Pricing Categories and Prices
	 	 	31	 
	 	 	 	 	 	10.2.	 	 	Price Books and Price Book Updates
	 	 	32	 
	 	 	 	 	 	10.3.	 	 	Service Charges
	 	 	39	 
	 	 	 	 	 	10.4.	 	 	Invoicing
	 	 	45	 
	 	 	 	 	 	10.5.	 	 	Reliance on historical data and non-performance by Equant
	 	 	45	 
	 	11.	 	 	 	BENCHMARKING SURVEY	 	 	47	 
	 	 	 	 	 	11.1.	 	 	General
	 	 	47	 
	 	 	 	 	 	11.2.	 	 	Nomination and Selection of the Independent Expert
	 	 	48	 
	 	 	 	 	 	11.3.	 	 	Appointment of the Independent Expert
	 	 	48	 
	 	 	 	 	 	11.4.	 	 	Frequency of Benchmarking
	 	 	48	 
	 	 	 	 	 	11.5.	 	 	Role of the Independent Expert
	 	 	48	 
	 	 	 	 	 	11.6.	 	 	Termination of the Benchmarking Agreement
	 	 	50	 
	 	 	 	 	 	11.7.	 	 	Acceptance of the Benchmarking Report
	 	 	52	 
	 	 	 	 	 	11.8.	 	 	Implementation of the Benchmarking Report
	 	 	52	 
	 	 	 	 	 	11.9.	 	 	Benchmarking Regions
	 	 	53	 
	 	 	 	 	 	11.10.	 	 	Benchmarking Costs
	 	 	53	 
	 	 	 	 	 	11.11.	 	 	Equant and SITA SC Responsibilities
	 	 	54	 
	 	 	 	 	 	11.12.	 	 	Co-operation of the Parties
	 	 	54	 
	 	 	 	 	 	11.13.	 	 	Actions During Dispute Resolution Procedures
	 	 	54	 
	 	12.	 	 	 	PRICE TO VOLUME SURVEY	 	 	55	 
	 	 	 	 	 	12.1.	 	 	Price to Volume Assessment
	 	 	55	 
	 	 	 	 	 	12.2.	 	 	Role of the Independent Expert
	 	 	55	 
	 	 	 	 	 	12.3.	 	 	Frequency of Price to Volume Assessment
	 	 	55	 
	 	 	 	 	 	12.4.	 	 	Acceptance of the Price to Volume Assessment Report
	 	 	56	 
	 	 	 	 	 	12.5.	 	 	Termination of a Benchmarking Agreement
	 	 	56	 
	 	 	 	 	 	12.6.	 	 	Allowable Differential
	 	 	56	 
	 	13.	 	 	 	MOST FAVOURED NATION PRICING	 	 	57	 
	 	 	 	 	 	13.1.	 	 	Most Favoured Nation Pricing Evaluation
	 	 	57	 
	 	 	 	 	 	13.2.	 	 	Nomination and selection of the MFN Evaluator
	 	 	58	 
	 	 	 	 	 	13.3.	 	 	Appointment of the MFN Evaluator
	 	 	58	 
	 	 	 	 	 	13.4.	 	 	Role of the MFN Evaluator
	 	 	58	 
	 	 	 	 	 	13.5.	 	 	Frequency of MFN Evaluation
	 	 	59	 
	 	 	 	 	 	13.6.	 	 	Termination of a Benchmarking Agreement
	 	 	59	 
	 	 	 	 	 	13.7.	 	 	Termination of a MFN Agreement
	 	 	59	 
	 	 	 	 	 	13.8.	 	 	Acceptance of the results of the MFN Evaluation Report and the MFN
Certification Report
	 	 	61	 
	 	 	 	 	 	13.9.	 	 	Implementation of the MFN Evaluation Report and the MFN Certification Report
	 	 	61	 
	 	 	 	 	 	13.10.	 	 	Costs of MFN Evaluation
	 	 	61	 
	 	 	 	 	 	13.11.	 	 	Equant and SITA SC Responsibilities
	 	 	62	 
	 	 	 	 	 	13.12.	 	 	Ex-parte communications
	 	 	62	 
	 	 	 	 	 	13.13.	 	 	Actions during Dispute Resolution Procedures
	 	 	62	 





	 	 	 
	

	Services Agreement	ii	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 










 



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	 	14.	 	 	 	MINIMUM REVENUE COMMITMENT	 	 	63	 
	 	15.	 	 	 	NETWORK ACTIVITY FORECASTS	 	 	67	 
	 	 	 	 	 	15.1.	 	 	Network Activity Forecasts
	 	 	67	 
	 	 	 	 	 	15.2.	 	 	Other information
	 	 	69	 
	 	16.	 	 	 	RECOGNISABLE COSTS	 	 	69	 
	 	 	 	 	 	16.1.	 	 	Significant Forecast Deviation and Recognisable Costs
	 	 	69	 
	 	 	 	 	 	16.2.	 	 	Mitigation of Recognisable Costs
	 	 	71	 
	 	 	 	 	 	16.3.	 	 	Payments in respect of Recognisable Costs
	 	 	72	 
	 	 	 	 	 	16.4.	 	 	Payment and semi-annual summaries
	 	 	73	 
	 	 	 	 	 	16.5.	 	 	Minimum Revenue Commitment
	 	 	73	 
	 	 	 	 	 	16.6.	 	 	Limitation on liability
	 	 	73	 
	 	17.	 	 	 	RELIANCE ON HISTORICAL DATA	 	 	73	 
	 	18.	 	 	 	INVOICING AND PAYMENT	 	 	74	 
	 	 	 	 	 	18.1.	 	 	Invoicing
	 	 	74	 
	 	 	 	 	 	18.2.	 	 	Amendments to Billed Entities
	 	 	74	 
	 	 	 	 	 	18.3.	 	 	Invoice Content and Format
	 	 	76	 
	 	 	 	 	 	18.4.	 	 	Detailed Billing Files and Mediation Data
	 	 	76	 
	 	 	 	 	 	18.5.	 	 	Payment Due
	 	 	77	 
	 	 	 	 	 	18.6.	 	 	Pass Through Expenses
	 	 	78	 
	 	 	 	 	 	18.7.	 	 	Interest
	 	 	80	 
	 	 	 	 	 	18.8.	 	 	Right of Set-Off
	 	 	80	 
	 	19.	 	 	 	SITA SC AND SITA INC RESPONSIBILITIES	 	 	81	 
	 	 	 	 	 	19.1.	 	 	SITA SC Representative and SITA INC Representative
	 	 	81	 
	 	 	 	 	 	19.2.	 	 	Co-operation; Specific Obligations
	 	 	82	 
	 	 	 	 	 	19.3.	 	 	Failure to Perform
	 	 	83	 
	 	20.	 	 	 	EQUANT RESPONSIBILITIES	 	 	83	 
	 	 	 	 	 	20.1.	 	 	Other Equant Obligations to SITA SC and/or SITA INC
	 	 	83	 
	 	 	 	 	 	20.2.	 	 	Equant Project Executive
	 	 	84	 
	 	 	 	 	 	20.3.	 	 	Co-operation
	 	 	85	 
	 	21.	 	 	 	AUDITS AND RECORD KEEPING	 	 	85	 
	 	 	 	 	 	21.1.	 	 	SITA SC and SITA INC Audit Rights
	 	 	85	 
	 	 	 	 	 	21.2.	 	 	Equant Audit Rights
	 	 	86	 
	 	 	 	 	 	21.3.	 	 	Cooperation with Audit Representatives
	 	 	86	 
	 	 	 	 	 	21.4.	 	 	Costs
	 	 	87	 
	 	22.	 	 	 	CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS	 	 	87	 
	 	 	 	 	 	22.1.	 	 	Confidentiality of Agreement
	 	 	87	 
	 	 	 	 	 	22.2.	 	 	Public Announcements
	 	 	87	 
	 	 	 	 	 	22.3.	 	 	Protection of Confidential Information
	 	 	87	 
	 	 	 	 	 	22.4.	 	 	Use of Confidential Information
	 	 	88	 
	 	 	 	 	 	22.5.	 	 	Exceptions to Obligations of Confidentiality
	 	 	89	 
	 	 	 	 	 	22.6.	 	 	Equitable Relief
	 	 	89	 
	 	 	 	 	 	22.7.	 	 	Period of Confidentiality
	 	 	89	 





	 	 	 
	

	Services Agreement	iii	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 










 



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	 	23.	 	 	 	INTELLECTUAL PROPERTY RIGHTS	 	 	90	 
	 	24.	 	 	 	WARRANTIES	 	 	90	 
	 	 	 	 	 	24.1.	 	 	Representations and Warranties by Equant
	 	 	90	 
	 	 	 	 	 	24.2.	 	 	Representations and Warranties by SITA SC
	 	 	90	 
	 	 	 	 	 	24.3.	 	 	Representations and Warranties by SITA INC
	 	 	91	 
	 	 	 	 	 	24.4.	 	 	No Additional Representations and Warranties
	 	 	92	 
	 	25.	 	 	 	INDEMNITIES	 	 	92	 
	 	 	 	 	 	25.1.	 	 	Indemnity by Equant
	 	 	92	 
	 	 	 	 	 	25.2.	 	 	Indemnity by SITA SC
	 	 	92	 
	 	 	 	 	 	25.3.	 	 	Indemnity by SITA INC
	 	 	93	 
	 	 	 	 	 	25.4.	 	 	Indemnification Procedures
	 	 	94	 
	 	26.	 	 	 	LIABILITY AND LIMITATION OF LIABILITY	 	 	95	 
	 	 	 	 	 	26.1.	 	 	Damages
	 	 	95	 
	 	 	 	 	 	26.2.	 	 	Limitations of Liability
	 	 	95	 
	 	 	 	 	 	26.3.	 	 	Duty to Mitigate
	 	 	97	 
	 	27.	 	 	 	TERMINATION	 	 	97	 
	 	 	 	 	 	27.1.	 	 	Termination for Cause by SITA SC and/or SITA INC
	 	 	97	 
	 	 	 	 	 	27.2.	 	 	Termination for Cause by Equant
	 	 	98	 
	 	 	 	 	 	27.3.	 	 	Termination for Insolvency
	 	 	98	 
	 	 	 	 	 	27.4.	 	 	Termination for Change of Control
	 	 	99	 
	 	 	 	 	 	27.5.	 	 	Termination for Force Majeure
	 	 	99	 
	 	 	 	 	 	27.6.	 	 	Accrued Rights
	 	 	100	 
	 	 	 	 	 	27.7.	 	 	Effect of Termination by a Party
	 	 	100	 
	 	 	 	 	 	27.8.	 	 	Cross-Defaults
	 	 	101	 
	 	 	 	 	 	27.9.	 	 	Co-operation Upon Expiry or Termination
	 	 	102	 
	 	28.	 	 	 	FORCE MAJEURE	 	 	105	 
	 	 	 	 	 	28.1.	 	 	Neither Party Liable
	 	 	105	 
	 	 	 	 	 	28.2.	 	 	Period of Delay
	 	 	106	 
	 	29.	 	 	 	DISPUTE RESOLUTION	 	 	106	 
	 	 	 	 	 	29.1.	 	 	Dispute Resolution Procedure
	 	 	106	 
	 	 	 	 	 	29.2.	 	 	Continued Performance
	 	 	106	 
	 	30.	 	 	 	GENERAL	 	 	106	 
	 	 	 	 	 	30.1.	 	 	Governing Law
	 	 	106	 
	 	 	 	 	 	30.2.	 	 	Notices
	 	 	106	 
	 	 	 	 	 	30.3.	 	 	Service of Notice
	 	 	108	 
	 	 	 	 	 	30.4.	 	 	Relationship of Parties
	 	 	108	 
	 	 	 	 	 	30.5.	 	 	Waiver
	 	 	108	 
	 	 	 	 	 	30.6.	 	 	Entire Agreement and Variation
	 	 	108	 
	 	 	 	 	 	30.7.	 	 	Priority of Documents
	 	 	109	 
	 	 	 	 	 	30.8.	 	 	Use of Resources
	 	 	109	 
	 	 	 	 	 	30.9.	 	 	Limitations Period
	 	 	109	 
	 	 	 	 	 	30.10.	 	 	Third Party Beneficiaries
	 	 	110	 
	 	 	 	 	 	30.11.	 	 	Assignment
	 	 	110	 
	 	 	 	 	 	30.12.	 	 	Counterparts
	 	 	110	 
	 	 	 	 	 	30.13.	 	 	Cumulative Rights
	 	 	110	 
	 	 	 	 	 	30.14.	 	 	Reading Down
	 	 	111	 
	 	 	 	 	 	30.15.	 	 	Severability
	 	 	111	 
	 	 	 	 	 	30.16.	 	 	Contra Proferentem
	 	 	111	 
	 	 	 	 	 	30.17.	 	 	Costs
	 	 	111	 
	 	 	 	 	 	30.18.	 	 	Survival of Terms
	 	 	111	 




	 	 	 
	

	Services Agreement	iv	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 










 



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SCHEDULES



	 	 	 
	Schedule A	 	Glossary
	Schedule B
	 	Year 2000 Price Books
	Schedule C
	 	Product Council Mandate
	Schedule D
	 	Network Planning Committee Mandate
	Schedule E
	 	Network Operational Performance Committee Mandate
	Schedule F
	 	Service Levels Schedule
	Schedule G
	 	Reports
	Schedule H
	 	Billing Entities, Billed Entities and Remitting Entities
	Schedule I
	 	Schedule of Services
	Schedule J
	 	Price Book Update Timescale
	Schedule K
	 	Nomination and Selection of Independent Expert
	Schedule L
	 	Network Security
	Schedule M
	 	Instructions to Independent Expert
	Schedule N
	 	Instructions to MFN Evaluator
	Schedule O
	 	Benchmarking Regions
	Schedule P
	 	Unit Cost, Cost Base and Volume Considerations
	Schedule Q
	 	Forecasting
	Schedule R
	 	Tail Circuit Management
	Schedule S
	 	Invoice Content and Format
	Schedule T
	 	Operations and Procedures Manual Requirements
	Schedule U
	 	Call Centres
	Schedule V
	 	Outsourcing Support
	Schedule W
	 	Intellectual Property Rights
	Schedule X
	 	Type A Messaging Support
	Schedule Y
	 	Class A Address Space Management





	 	 	 
	

	Services Agreement	v	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 










 



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SERVICES AGREEMENT


PREAMBLE


AGREEMENT dated: 29 June 2001, as amended on
                2001


PARTIES


This Agreement is among:


Equant N.V., a Dutch company having its registered office at 21-23
Gatwickstraat, 1043 GL Amsterdam, the Netherlands (‘Equant’)


AND


Société Internationale de Télécommunications Aéronautiques S.C., a Belgian
co-operative company having its registered office at 14 avenue Henri Matisse,
B-1140 Brussels, Belgium (‘SITA SC’)


AND


SITA Information Networking Computing N.V., a Dutch company having its
registered office at Heathrowstraat 10, 1043 CH Amsterdam, the Netherlands
(‘SITA INC’)


(each a ‘Party’, and together, the
‘Parties’).


RECITALS



	A.	 	On even date herewith




	 	(i)	 	the Parties and France Telecom have also entered into a
Strategic Relationship Umbrella Agreement;
	 
	 	(ii)	 	Equant and SITA SC have also entered into a Transition and
Management Agreement; and
	 
	 	(iii)	 	SITA SC, SITA INC and France Telecom have also entered into
an Account Management Agreement.




	B.	 	The Parties hereby agree that Equant shall provide certain products and
services to SITA SC and SITA INC on the terms and conditions set out in
this Agreement.





	 	 	 
	

	Services Agreement	1	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 










 



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Now, therefore, the Parties, in consideration of the premises and mutual
covenants and undertakings contained herein, agree as follows:


TERMS AND CONDITIONS



	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1.	 	Definitions



In this Agreement, all capitalised terms shall have the meaning set out in the
Glossary in Schedule A or as defined in the text of this Agreement.



	1.2	 	Interpretation
	 
	(a)	 	In this Agreement, unless the express context indicates or requires a
contrary intention:




	 	(i)	 	words suggesting the singular include the plural and vice
versa;
	 
	 	(ii)	 	words suggesting any gender include any other gender;
	 
	 	(iii)	 	references to a ‘legal entity’ include a company,
corporation, partnership, joint venture, co-operative company,
unincorporated or incorporated association or organisation or
statutory authority, and references to a ‘person’ include an
individual or a legal entity;
	 
	 	(iv)	 	headings used in this Agreement are for ease of reference
only and will not affect the interpretation of this Agreement;
	 
	 	(v)	 	references to any agreement or document (including to this
Agreement) are to that agreement or document as amended,
supplemented, varied or replaced from time to time;
	 
	 	(vi)	 	use of the words ‘includes’ or ‘including’ shall be deemed to
be followed by the words ‘without limitation’; and
	 
	 	(vii)	 	a reference to a clause, paragraph, or Schedule means a
clause, paragraph, or schedule to this Agreement.




	2.	 	TERM



The term of this Agreement shall commence from and include the Effective Date
and shall continue in effect for a period of ten (10) years (the ‘Term’),
unless terminated earlier in accordance with the terms of this Agreement or
extended by the mutual agreement of the Parties.




	 	 	 
	

	Services Agreement	2	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 









 



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	3.	 	SERVICES
	 
	3.1.	 	Services
	 
	(a)	 	Equant shall, or shall cause, one or more of the Equant Group Companies
to provide to SITA SC, to SITA INC and to the SITA Group Companies the
Services, which shall consist of:




	 	(i)	 	the Network Services (including Generic Products/Services and
SITA Specific Products/Services) listed in the Price Books as being
available for a Country and that are ordered by SITA SC (for its own
use or resale to the Air Transport Community and for the use of the
SITA Group Companies or resale to the Air Transport Community)
and/or by SITA INC (for its own use or resale to the Air Transport
Community) in respect of such Country;
	 
	 	(ii)	 	the Support Services (including Generic Products/Services and
SITA Specific Products/Services) listed in the Price Books as being
available for a Country and that are ordered by SITA SC (for its own
use or resale to the Air Transport Community and for the use of the
SITA Group Companies or resale to the Air Transport Community)
and/or by SITA INC (for its own use or resale to the Air Transport
Community) in respect of such Country; and
	 
	 	(iii)	 	such other products or services on an ad hoc basis as may be
agreed by the Parties from time to time.




	(b)	 	Equant shall offer to SITA SC, the SITA Group Companies, and SITA INC all
Generic Products/Services that Equant offers to other Equant customers.
	 
	3.2.	 	Services Under Post-Effective Date Agreements Not Included



The provision of services pursuant to any other agreements executed by the
Parties after the Effective Date is not included within the scope of the
Services.



	3.3.	 	Branding and Marketing



With effect from the Effective Date, SITA SC, the SITA Group Companies and SITA
INC shall each have the right to brand and market the Network, the Network
Services and the Support Services provided by Equant to SITA SC, a SITA Group
Company, or SITA INC (whether such Network Service or Support Service is a
Generic Product/Service or SITA Specific Product/Service) as a network, product
or service of the SITA Group Companies when sold or provided by SITA SC, SITA
INC or one of the SITA Group Companies to any of their respective customers.




	 	 	 
	

	Services Agreement	3	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 










 



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	4.	 	CHANGES IN THE SCOPE OF SERVICES
	 
	4.1.	 	Commissioning of Requested Services



The Parties will agree in writing additional Generic Products/Services and
additional SITA Specific Products/Services, and such agreements will be set out
as amendments to the Price Books and Service Level Schedule, as appropriate.



	4.2.	 	Product Council



Within fifteen (15) days following the Effective Date, the Parties will
establish a Product Council. The composition and procedures of the Product
Council are set forth in Schedule C (‘Product Council Mandate’) and at all
times the Product Council shall act and be governed in accordance with Schedule
C. The first meeting of the Product Council shall be convened within thirty
(30) days following the Effective Date.



	4.3.	 	Development of New Products and Services
	 
	(a)	 	As provided in Schedule C (‘Product Council Mandate’), the Product
Council may recommend from time to time that Equant develop new Generic
Products/Services, or SITA Specific Products/Services.
	 
	(b)	 	If the Product Council recommends that Equant develop a new Generic
Product/Service, Equant in its sole and absolute discretion may elect in
writing to accept or not accept such Product Council recommendation to
develop a new Generic Product/Service. In exercising this discretion,
Equant may have specific regard as to whether expected sales (to the SITA
Group Companies and to other Equant customers or prospective customers)
would be sufficient to permit Equant to recover the full costs of
development of the proposed Generic Product/Service. Equant shall fund
the full cost of developing Generic Products/Services.
	 
	(c)	 	If Equant elects not to accept a Product Council recommendation to
develop a new Generic Product/Service, SITA SC and/or SITA INC may
nevertheless require Equant to develop and produce such product or service
at cost as a new SITA Specific Product/Service pursuant to clause 4.3(d)
and to support such SITA Specific Product/Service at the prices set out in
the Price Books. SITA SC and Equant shall promptly agree a development
document in respect of each new SITA Specific Product/Service that will
set out the technical specifications, development costs, development
timetables, and all other commercial terms between the Parties. Except as
provided in Schedule W (‘Intellectual Property Rights’), SITA SC and/or
SITA INC, as applicable, shall fund the full cost of developing a SITA
Specific Product/Service. Equant shall fund the full cost of developing
any modules as described in Schedule W (‘Intellectual Property Rights’).
	 
	(d)	 	Equant shall develop and produce any new SITA Specific Product/Service
requested by SITA SC and/or SITA INC [*], with such development and
production to take place promptly in accordance with the development
document referred to in clause 4.3(c) upon receipt of an adequate funding
commitment from SITA SC or SITA INC that is





	 	 	 
	

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	 	 	satisfactory to Equant. The Parties concerned shall agree the Service
Charges to be included in the Price Books and the Service Levels (if any)
to be included in the Service Levels Schedule in respect of such SITA
Specific Product/Service. Equant shall support any new SITA Specific
Product/Service for the corresponding prices set out in the Price Books.
	 
	(e)	 	Equant shall not market any SITA SC Specific Product/Service or
substantially similar versions thereof to a customer other than SITA SC,
SITA INC, or one of the SITA Group Companies. In the event that Equant
desires to market any SITA Specific Product/Service, or a substantially
similar product or service, to any customer other than SITA SC, one of the
SITA Group Companies, or SITA INC, then:




	 	(i)	 	in the event that Equant desires to offer such SITA Specific
Product/Service, or a substantially similar product or service, to
one or more specific customers (but not generally across its
customer base), then the Parties concerned shall negotiate in good
faith to determine the fees to be paid by Equant to SITA SC or SITA
INC, as appropriate, in respect of the use of such SITA Specific
Product/Service; and
	 
	 	(ii)	 	in the event that Equant desires to offer such SITA Specific
Product/Service, or a substantially similar product or service, to
its customers generally as a standard product or service, then
clause 4.3(f) shall apply.




	(f)	 	Equant may at any time during the Term elect in its sole and absolute
discretion to market a SITA Specific Product/Service, or a substantially
similar product or service, as a standard product or service across its
customer base. If Equant makes such an election then the following shall
apply:




	 	(i)	 	if Equant makes such election within the first six (6) months
following the date that Equant first made the SITA Specific
Product/Service available to SITA SC, the SITA Group Companies, or
SITA INC (regardless of whether SITA SC, the SITA Group Companies
and/or SITA INC actually marketed or sold such SITA Specific
Product/Service on such date), then Equant shall refund to SITA SC
and/or SITA INC, as the case may be, [*] of development
that was paid by SITA SC and/or SITA INC. Equant may not thereafter
adjust the Service Charges in respect of such SITA Specific
Product/Service to recover such refunded [*]; and
	 
	 	(ii)	 	if Equant makes such election after the first six (6) months
following the date that Equant first made the SITA Specific
Product/Service available to SITA SC, the SITA Group Companies, or
SITA INC (regardless of whether SITA SC, the SITA Group Companies
and/or SITA INC actually marketed or sold such SITA Specific
Product/Service on such date), then at the sole and absolute
discretion of SITA SC or SITA INC, as appropriate, either:





	 	(A)	 	Equant shall refund to SITA SC and/or SITA
INC, as the case may be, [*] of development that
was paid by SITA SC and/or SITA






	 	 	 
	

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	 		 	INC. The Parties concerned shall thereafter agree to
adjust the Service Charges in respect of such product to
reflect the status of such product as a Generic
Product/Service rather than a SITA Specific
Product/Service, with such adjusted Service Charges to be
effective as of twelve (12) months after the date upon
which Equant makes such election. The Parties anticipate
that the Service Charges for such product as a Generic
Product/Service would be higher than the Service Charges
for such product as a SITA Specific Product/Service. Such
adjusted Service Charges shall be subject to this
Agreement (eg., annual adjustments, benchmarking, most
favoured customer pricing, Unit Cost reduction guarantees,
etc.) as other Service Charges; or







	 	(B)	 	Equant shall refund to SITA SC and/or SITA
INC, as the case may be, [*] of development that was paid by SITA SC and/or SITA
INC. In this instance, the Service Charges in respect of
such product shall not be adjusted to reflect the status of
such product as a Generic Product/Service. Such Service
Charges shall continue to be subject to this Agreement (eg.,
annual adjustments, benchmarking, most favoured customer
pricing, Unit Cost reduction guarantees, etc.) as other
Service Charges.





	 	 	Upon the receipt by SITA SC and/or SITA INC (as appropriate) of the
refund contemplated by clause 4.3(f)(i) or clause 4.3(f)(ii), as
applicable, the Price Books shall be amended to include such SITA
Specific Product/Service as a Generic Product/Service.
	 
	(g)	 	Intellectual Property Rights arrangements in respect of Generic
Products/Services and SITA Specific Products/Services are set out in
Schedule W (‘Intellectual Property Rights’).
	 
	4.4.	 	Access to Product Marketing Functions



SITA SC, the SITA Group Companies, and SITA INC shall have full access to and
support from Equant’s product speciality, development and management functions
(eg., product marketing functions) to provide advice and support for SITA SC’s
marketing of Generic Products/Services and SITA Specific Products/Services to
customers of the SITA Group Companies and customers of SITA INC.



	5.	 	NETWORK, NETWORK PLANNING AND NETWORK EXPANSION
	 
	5.1.	 	Continuity of Network Services Worldwide
	 
	(a)	 	Equant will ensure and provide continuity of Network Services [*] in all Countries and locations where Network Services are
provided to customers of the SITA Group Companies by or on behalf of SITA
SC (or by or on behalf of any SITA Group Company) as at the Effective Date
of this Agreement. For the purposes of this clause
5.1(a), the term ‘continuity of Network Services’ refers only to product
features and the





	 	 	 
	

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	 	 	geographic scope of the Network, and does not refer to
performance issues, which are addressed elsewhere in this Agreement.
Equant shall not make any proposed change, alteration, variation or take
any action which is likely to result in a reduction in or negatively
affect the functionality (meaning significant features and capability),
coverage or capillarity of the Network Services (any such proposed
change, alteration, variation or action, a ‘Proposed Action’), except as
provided in this clause 5.1.
	 
	(b)	 	Equant shall provide written notice to SITA SC, at least sixty (60) days
prior to the proposed implementation date of any Proposed Action, unless
such Proposed Action is required to comply with Law and Equant is not able
to provide such written notice at least sixty (60) days in advance, in
which case Equant shall promptly provide notice (and in no event more than
five (5) Business Days after Equant becomes aware that an action is
required to comply with Law).
	 
	(c)	 	The prior, written consent of SITA SC, such consent to be granted in the
sole and absolute discretion of SITA SC, is required in respect of any
Proposed Action by Equant if:




	 	(i)	 	Equant proposes relocating a
point of presence of the Network [*];
	 
	 	(ii)	 	Equant proposes to discontinue use of a point of presence of
the Network and relocate the Network Services provided through such
point of presence to another point of presence of the Network [*];
	 
	 	(iii)	 	Equant proposes relocating a Network point of presence that
is located at an airport; or
	 
	 	(iv)	 	Equant proposes to discontinue use of a point of presence of
the Network that is located at an airport and relocate the Network
Services provided through such point of presence to another point of
presence of the Network that is not located at the same airport.




	(d)	 	In the event that no consent is required to be obtained by Equant
pursuant to clause 5.1(c), then:




	 	(i)	 	Equant shall bear [*] incurred in relocating the
affected point of presence;
	 
	 	(ii)	 	Equant shall bear [*] in respect of tail circuits incurred by the SITA
Group Companies or their customers as a result of the Proposed
Action; and
	 
	 	(iii)	 	if (a) the Proposed Action will cause or is likely to cause
a material increase in the net costs to SITA SC or a material
increase in the aggregate net costs of SITA SC’s customers, or (b)
if the Proposed Action will cause or is likely to cause a
significant adverse impact on the levels of service provided to SITA
SC’s customers, then SITA SC and Equant shall meet at least
thirty (30) days





	 	 	 
	

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	 	 	 	prior to the implementation of the Proposed
Action to discuss and agree in good faith the compensation or
other action to alleviate the impact of the Proposed Action on
SITA SC and/or its customers.




	(e)	 	In the event that consent is required to be obtained by Equant pursuant
to clause 5.1(c), then SITA SC and Equant shall meet at least thirty (30)
days prior to the desired implementation date of the Proposed Action to
discuss and agree in good faith to determine the allocation of the costs
to be borne by the Parties in connection with the Proposed Action.
	 
	(f)	 	In the event that Equant submits a written notice to SITA SC pursuant to
clause 5.1(b) indicating that it intends to implement a Proposed Action,
SITA SC shall respond in writing to such request within thirty (30) days
of receipt thereof. SITA SC may have one thirty (30) day extension of
this deadline by providing written notice of such extension to Equant
prior to the deadline, except in the instance that the Proposed Action is
required by Law and to be completed within such thirty (30) day period.
Further extensions of such deadline will be subject to the Consent of
Equant. If no SITA SC response to such an Equant request is received by
the applicable deadline, Equant may give final written notice to the SITA
SC Representative that no response to Equant’s request has been received
from SITA SC. If SITA SC makes no written response to such final notice
within seven (7) days of the receipt thereof, Equant’s request to
implement the Proposed Action shall be deemed to be approved by SITA SC.
	 
	5.2.	 	Network Planning Committee
	 
	(a)	 	Within fifteen (15) days following the Effective Date, the Parties will
establish a Network Planning Committee. The composition and procedures of
the Network Planning Committee are set forth in Schedule D
(‘Network
Planning Committee Mandate’) and at all times the Network Planning
Committee shall act and be governed in accordance with Schedule D. The
first meeting of the Network Planning Committee shall be convened within
thirty (30) days following the Effective Date.
	 
	(b)	 	[*] Equant shall deliver a Network Strategic Plan and a
Network Short Term Development Plan to the Network Planning Committee at
least seven (7) days prior to each regular meeting of the Network Planning
Committee.
	 
	5.3.	 	Network Modification Funding
	 
	(a)	 	Subject to the specific exceptions set forth herein relating to
investment for specific Air Transport Community products and services as
provided in clause 5.3(c)(ii), Equant shall be responsible for funding the
acquisition of all Network assets used in the operation and delivery of
Generic Products/Services (‘Generic Network Assets’). Equant shall also
fund the development and maintenance of Generic Network Assets as
necessary to support the forecast connections and traffic (including that
contained in the SITA Group Companies’ Network Activity Forecast). In any
event, SITA SC shall not be responsible for funding expansions or
modifications to the Network, the acquisition of any Network






	 	 	 
	

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	 	 	assets, or the maintenance or routine development of the Network except
as provided in clause 5.3(e).
	 
	(b)	 	Equant shall fund and implement expansions and modifications of the
Network (including the acquisition of Generic Network Assets) relating to
(i) expansions or modifications of the Network included in a Network
Implementation Action recommended by the Network Planning Committee that
Equant has accepted in writing, or (ii) a Network Implementation Action
that Equant has included in a Network Short Term Development Plan that
Equant delivers to the Network Planning Committee pursuant to clause
5.2(b).
	 
	(c)	 	Equant in exceptional cases may elect not to accept a Network
Implementation Action that the Network Planning Committee recommends (or,
if the Network Planning Committee is unable to recommend a Network
Implementation Action but SITA SC nevertheless requests Equant to fund
such Network Implementation Action) for expansion or modification of the
Network, if Equant demonstrates that the expected sales (to the SITA Group
Companies and to other Equant customers) would not be reasonably
sufficient to permit Equant to recover the full costs plus a reasonable
rate of return of the proposed expansion or modification of the Network
during the useful life of the physical assets necessary for such Network
expansion or modification. If Equant makes such demonstration, then both
Parties shall submit to the Network Planning Committee their anticipated
volume forecast activity in respect of such Network Implementation Action for the first twelve (12) months after such
Network Implementation Plan would be implemented, and:




	 	(i)	 	if for such twelve (12) month period, the volume activity of
Equant, its Affiliates and its customers (the ‘Equant Activity’)
which is forecasted represents [*] (‘Total
Activity’), then Equant shall fund and implement such Network
Implementation Action; or
	 
	 	(ii)	 	if for such twelve (12) month period, the Equant Activity is
[*] of the Total Activity, then SITA SC
shall fund, and Equant shall implement, the Network Implementation
Action.




	(d)	 	In all cases other than those referred to in clause 5.3(c), Equant shall
fund such Network Implementation Action and its full integration into the
Network.
	 
	(e)	 	If SITA SC is required to fund the Network Implementation Action pursuant
to clause 5.3(c)(ii), then unless the Parties elect to vary the following
arrangement in a specific business plan:




	 	(i)	 	SITA SC shall fund the expansion of, or modification to, the
Network or the Network Implementation Action (as applicable) and
its interconnection with or integration into the Network (as
appropriate). Equant shall implement and interconnect or fully
integrate (as appropriate) such expansion of, or modification to,
the Network or such Network Implementation Action into the





	 	 	 
	

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	 	 	 	Network at cost upon receipt of an adequate funding commitment
from SITA SC that is satisfactory to Equant;
	 
	 	(ii)	 	Each expansion or modification to the Network shall conform
with Equant’s Network engineering and quality standards;
	 
	 	(iii)	 	Unless SITA SC and Equant agree otherwise:




	 	(A)	 	SITA SC shall retain title to the Network
assets necessary to implement such expansion of, or
modification to, the Network or such Network Implementation
Action (as applicable) and, if any Software is licensed in
respect of such Network assets, it will be licensed in SITA
SC’s name.





	 	(B)	 	All contracts (including rights to tail
circuits) necessary to implement such expansion of, or
modification to, the Network or such Network Implementation
Plan, shall be in SITA SC’s name; and





	 	(C)	 	Equant shall operate, manage and maintain the
facilities concerned;





	 	(iv)	 	If SITA SC has funded an expansion or modification to the
Network pursuant to clause 5.3(e)(i), Equant and SITA SC shall
negotiate in good faith and agree the Service Charges to be paid by
the SITA Group Companies in respect of Services that utilise any
such expansion of, or modification to, the Network; it being
understood that if at any time the actual Equant Activity is [*] of the actual Total Activity in respect of
such expanded or modified facilities, then upon agreement of the
Service Charges to be charged to the SITA Group Companies in respect
of the Services that utilise such expansion of, or modification to,
the Network (if applicable prices are not already set out in the
Price Books), Equant shall acquire any physical assets acquired by
SITA SC pursuant to this clause 5.3(e) at their net book value;
	 
	 	(v)	 	if Equant has, in its forecast provided pursuant to clause
5.3(c), indicated that it would not use the expanded or modified
facilities at all during the first twelve (12) month period and
either (i) Equant requests to use, or to provide the use of, such
expansion of, or modification to, the Network to serve any customer
other than SITA SC, SITA INC, or a SITA Group Company within the
initial twelve (12) months after such expanded or modified
facilities are installed, or (ii) Equant in fact uses such expanded
or modified facilities without requesting such use, then (upon
agreement of the Service Charges to be charged to the SITA Group
Companies in respect of the Services that utilise such expansion of,
or modification to, the Network, if applicable prices are not
already set out in the Price Books) Equant shall acquire any
physical assets acquired by SITA SC pursuant to this clause 5.3(e)
at their net book value.
	 
	 	(vi)	 	At Equant’s option at any time and upon agreement of the
Service Charges to be charged to the SITA Group Companies in respect
of Services that utilise such expansion of, or modification to, the
Network, Equant may acquire any physical assets acquired by SITA SC
pursuant to this clause 5.3(e) at their net book value.





	 	 	 
	

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	5.4.	 	Step-In Rights
	 
	(a)	 	In case of Equant’s failure to fund a Network Implementation Action in a
way that constitutes a breach of this Agreement, SITA SC will have the
option to take such steps as are necessary in the reasonable business
judgment of SITA SC (including engaging substitute services provided by a
third party) to provide and maintain its service to the Air Transport
Community (other than those actions described in clause 5.4(b)).
	 
	(b)	 	In the case of Equant’s failure to fund a Network Implementation Action
in a way that constitutes a material breach of this Agreement, SITA SC
will have the option to take such steps temporarily to recover operational
control of sufficient Network Resources to provide and maintain its
service to the Air Transport Community provided that either:




	 	(i)	 	SITA SC first escalates the matter to the Executive Committee
for determination of whether Equant’s failure to fund a Network
Implementation Action is a material breach of this Agreement. The
Executive Committee shall promptly meet for the purpose of
determining whether Equant’s failure to fund such Network
Implementation Action is a material breach of this Agreement, with
such determination to be made within fourteen (14) days of the
effective date of SITA SC’s written notice to Equant. If the
Executive Committee has not made such a determination within such
fourteen (14) day period, then either Party may escalate the matter
to the chief executive officer of Equant and the Director General of
SITA SC for resolution. If no resolution is reached by such chief
executive officer and Director General within seven (7) days, then
SITA SC may initiate the formal dispute resolution procedure to
determine whether such failure to fund is a material breach of this
Agreement, which dispute resolution procedure shall take place on an
expedited basis with the arbitrator empowered only to determine
whether such failure to fund is a material breach of this Agreement.
Following such determination, the arbitration proceedings will be
recessed pending possible resumption of such proceedings pursuant to
clause 5.4(g); or
	 
	 	(ii)	 	such action has been agreed by SITA SC and Equant.




	(c)	 	If SITA SC determines in its reasonable business judgment that the delay
caused by pursuing the formal dispute resolution procedure described in
clause 5.4(b)(i) will be too long in light of the relevant circumstances
affecting the SITA Group Companies and/or their respective customers, then
SITA SC may unilaterally take steps temporarily to recover operational
control of sufficient Network Resources to provide and maintain its
service to the Air Transport Community. In this case:




	 	(i)	 	Equant will permit SITA SC to take such steps;
	 
	 	(ii)	 	if the arbitrator determines that the failure to fund was not
a material breach of this Agreement, then the arbitrator shall also
be empowered to award either Equant or SITA SC damages or other
remedies permitted under this Agreement; and





	 	 	 
	

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	 	(iii)	 	if the arbitrator determines that the failure to fund was a
material breach of this Agreement, then (A) the arbitrator shall
also be empowered to award either Equant or SITA SC damages or other
remedies permitted under this Agreement; and (B) following such
determination the arbitration proceedings will be recessed pending
possible resumption of such proceedings pursuant to clause 5.4(g).




	(d)	 	In the event that SITA SC elects to exercise the option set out in clause
5.4(a) or clause 5.4(b), then, SITA SC shall give Equant two (2) Business
Days written notice of its election, specifying the breach, and indicating
the option that it intends to exercise. If Equant has not provided SITA
SC evidence that Equant has remedied the breach to SITA SC’s reasonable
satisfaction within such two (2) Business Day period, then SITA SC shall
be entitled:




	 	(i)	 	to exercise the elected option
(the ‘Step-In Rights’);
	 
	 	(ii)	 	to require that any Network assets provisioned by SITA SC and
any changes, alterations, variations or actions taken (including
substitute services provided by a third party) by SITA SC in order
to remedy such breach or in connection with the exercise of the
Step-In Rights be implemented and either integrated into or
interconnected with the Network forthwith by Equant, as the Parties
may agree. Equant shall promptly do so at no cost to either SITA SC
or SITA INC in respect of such implementation, integration or
interconnection activity;
	 
	 	(iii)	 	to recover any costs and expenses incurred by SITA SC in
exercising the Step-In Rights from Equant as direct losses; and
	 
	 	(iv)	 	to obtain such remedies as may be available to it either
under this Agreement or otherwise in equity or at law, including
withholding from payment to Equant any costs SITA SC incurs in
exercising the Step-In Rights, not to exceed an aggregate amount
withheld of the total Service Charges (not including Pass-Through
Expenses) invoiced to the SITA Group Companies in respect of the
most recent three (3) full Billing Periods.




	(e)	 	In the event that SITA SC exercises the Step-In Rights set out in clause
5.4(b), then:




	 	(i)	 	SITA SC and Equant must both use commercially reasonable
endeavours to ensure seamless network operations of the portion of
the Network of which SITA SC has temporarily assumed operational
control with the remainder of the Network;
	 
	 	(ii)	 	Equant shall be relieved from maintaining Service Levels in
respect of those portions of the Network of which SITA SC has
recovered operational control (and Equant shall not be liable to pay
Service Credits in respect of Service Level Failures in respect of
such portions of the Network) in respect of the period commencing
from and including the date on which SITA SC recovered operational
control of the Network until and including the date upon which SITA
SC returns control of the Network to Equant;





	 	 	 
	

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	 	(iii)	 	failures to meet Service Levels in respect of portions of
the Network of which Equant retains operational control shall not be
Service Level Failures if such failures are caused by SITA SC
activity in respect of those portions of the Network of which it has
assumed operational control (and Equant shall not be liable to pay
Service Credits in respect of such failures) in respect of the
period commencing from and including the date upon which SITA SC
recovered operational control of such portions of the Network until
and including the date upon which SITA SC returns operational
control of such portions of the Network to Equant;
	 
	 	(iv)	 	SITA SC shall continue to provide Network Services to its own
customers as well as to SITA INC and Equant and to the customers of
either SITA INC and Equant (including both customers existing at the
time that SITA SC exercises the Step-In Rights and customers that
are added thereafter) using those portions of the Network of which
it has assumed temporary operational control. After exercising the
Step-In Rights, SITA SC shall not knowingly take any step that will
cause the Service Levels provided to SITA SC, the SITA Group
Companies, SITA INC or Equant, or the customers of any of them, to
deteriorate. After exercising the Step-In Rights related to the
option set out in clause 5.4(b), SITA SC shall not exercise any
preferential treatment in respect of the provision of Network
Services (including Service Levels and other indicia of quality of
service) to SITA SC, the SITA Group Companies or their customers in
comparison to the provision of Network Services to SITA INC or
Equant or their respective customers;
	 
	 	(v)	 	SITA SC and/or SITA INC, as appropriate, shall continue to
pay Service Charges in respect of the Services that are provided
using any portion of the Network in respect of which SITA SC has
recovered temporary operational control. Equant shall pay or
reimburse all costs incurred by SITA SC in exercising the Step-In
Rights during the period commencing from and including the date on
which SITA SC recovered operational control of such portion of the
Network until and including the date upon which SITA SC returns
control of such portions of the Network to Equant; and
	 
	 	(vi)	 	the SITA SC Representative and the SITA INC Representative
must, within ten (10) days of having recovered operational control
of any portion of the Network, meet with the Equant Project
Executive to plan the return of complete operational control of such
portion of the Network to Equant.




	(f)	 	Equant shall (and shall cause that its sub-contractors shall) co-operate
fully with SITA SC and any third party engaged by SITA SC to facilitate
the exercise of the Step-In Rights and:




	 	(i)	 	Equant shall permit the use of (or take any steps necessary
to cause the relevant persons to permit SITA SC to be able to use)
any licenses or sublicenses as are reasonably required by SITA SC or
any third party acting on behalf of SITA SC; and





	 	 	 
	

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	 	(ii)	 	Equant shall afford access to any premises, equipment,
documents, information or other items as are reasonably required by
SITA SC or any third party acting on behalf of SITA SC.




	(g)	 	If arbitration proceedings were convened to determine whether SITA SC was
entitled to exercise the Step-In Rights, then any dispute arising in
respect of the exercise of such rights by SITA SC will be referred to the
same arbitration proceedings (if not resolved through informal dispute
resolution). Either Equant or SITA SC may at any time elect to resume any
arbitration proceedings recessed pursuant to clause 5.4(b)(i) or clause
5.4(c)(iii). In such resumed arbitration proceedings, the Parties may
make use of, and the arbitrator may take regard of, evidence introduced by
either Party in the earlier arbitration.
	 
	5.5.	 	Network Operational Performance Committee



Within fifteen (15) days following the Effective Date, the Parties will
establish a Network Operational Performance Committee. The composition and
procedures of the Network Operational Performance Committee are set forth in
Schedule E (‘Network Operational Performance Committee Mandate’) and at all
times the Network Operational Performance Committee shall act and be governed
in accordance with Schedule E. The first meeting of the Network Operational
Performance Committee shall be convened within thirty (30) days following the
Effective Date.



	6.	 	SERVICE PROCEDURES
	 
	6.1.	 	Annual Review



In addition to the continuing review of the strategic relationship of the
Parties conducted by the Executive Committee, the chief executive officer of
Equant and the Director General of SITA SC will meet annually to review the
overall operation of this Agreement. The SITA SC Representative and Equant
Project Executive shall attend such meeting. For so long as SITA INC is
Controlled by the SITA INC Foundation, the Director General of SITA SC will
represent the interests of SITA INC in this annual review. If SITA INC is no
longer Controlled by the SITA INC Foundation, the chief executive officer of
Equant and the chief executive officer of SITA INC will meet separately to
conduct a review of the overall operation of this Agreement with respect to the
relationship between Equant and SITA INC.



	6.2.	 	Implementation of Approved Executive Committee Resolutions



Each Party will cooperate with each other Party to implement any resolutions
that have been approved by the Executive Committee (including, as necessary,
any amendment to this Agreement and the agreement of any modified Service
Charges) resulting from such approved resolution.




	 	 	 
	

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	6.3.	 	Co-operation



The Parties will enforce their rights and meet their obligations under this
Agreement in accordance with applicable Law and, as legally possible and
commercially reasonable, in a way that improves Cost Efficiencies.



	6.4.	 	Transfer of Global One Contracts with the Air Transport Community
	 
	(a)	 	In relation to contracts existing between Global One and customers in the
Air Transport Community which are transferred to Equant or that Equant
assumes as a result of the merger between Equant and Global One (a)
details of which have been disclosed by France Telecom to SITA SC prior to
the Effective Date, and (b) all other such contracts with annual revenues
exceeding one hundred thousand U.S. Dollars ($100,000) per annum (together, the ‘Global One ATC
Contracts’), and notwithstanding the other provisions of this clause 6.4,
Equant will cooperate fully with SITA SC with a view to assigning,
novating or otherwise transferring the Global One ATC Contracts to SITA SC
at the earliest possible opportunity. Such cooperation will include joint
communications or customer visits in order to explain to each such
customer the advantages of transferring its Global One ATC Contracts to
SITA SC and joint efforts to obtain relevant consents to such assignment,
novation or transfer. No Global One ATC Contract will be assigned,
novated or otherwise transferred to SITA SC unless the customer concerned
consents to such assignment, novation or transfer.
	 
	(b)	 	If Equant or Global One is permitted to do so under existing
confidentiality obligations with the customers concerned, Equant shall
promptly disclose to SITA SC the Global One ATC Contracts. If Equant is
not permitted to disclose a Global One ATC Contract to SITA SC due to an
existing confidentiality obligation with a customer, then Equant shall
approach (or request that Global One approach) such customer and request
such customer’s approval either (i) to disclose to SITA SC the Global One
ATC Contract concerned, or (ii) to disclose to SITA SC the relevant
pricing and other commercial terms of service included in such Global One
ATC Contract.
	 
	(c)	 	SITA SC reserves the right not to proceed with the transfer of a Global
One ATC Contract pursuant to this clause 6.4 if SITA SC is unwilling or
unable to provide services to the customer concerned pursuant to the
relevant Global One ATC Contract.
	 
	6.5.	 	Operations and Procedures Manual
	 
	(a)	 	Within six (6) months after the Effective Date, Equant and SITA SC will
cooperate jointly to develop an Operations and Procedures Manual. The
Operations and Procedures Manual will be developed based upon the
processes, targets and operational guidelines with respect to the
operational interaction agreed by the Parties prior to the Effective Date,
as set out in the various Attachments to Schedule T (‘Operations and
Procedures Manual’).
	 
	(b)	 	After each section of the Operations and Procedures Manual is developed,
SITA SC and Equant will each approve such section, which approval will not
be unreasonably withheld, conditioned or delayed. After each section of the Operations
and Procedures





	 	 	 
	

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	 	 	Manual has been so approved, Equant shall provide the
Services, and the Parties shall otherwise act, in compliance with such
section of the Operations and Procedures Manual and such section of the
Operations and Procedures Manual will replace and supersede the
corresponding Attachment to Schedule T (‘Operations and Procedures
Manual’), which will thereafter have no contractual significance.
	 
	(c)	 	Until such processes, targets and operational guidelines agreed in each
of the Attachments to Schedule T (‘Operations and Procedures Manual’) have
been incorporated into the agreed Operations and Procedures Manual or
otherwise incorporated into this Agreement (eg., by an amendment to the
Price Books), Equant shall provide the Services, and the Parties shall
otherwise act, in compliance with the commercial principles set out in the
Attachments to Schedule T (‘Operations and Procedures Manual’).
	 
	(d)	 	Failure to meet any of the operational targets, to comply with any of the
processes or procedures, or otherwise to comply with any of the other
requirements set out in the Attachments to Schedule T (‘Operations and
Procedures Manual’) (or as set out in the Operations and Procedures Manual
after such processes and services are incorporated therein pursuant to
clause 6.5(a)) will not be a breach of contract by Equant. The only
remedies for such failures will be the definition of action plans and
escalations to the Product Council, Network Planning Committee or Network
Operational Performance Committee (or, if necessary, to the Executive
Committee) or to the appropriate parts of Equant management (if
specified), unless expressly otherwise agreed by the Parties.
Notwithstanding the foregoing, nothing in this clause 6.5(d) shall
preclude SITA SC and/or SITA INC from relying upon any such failure as
evidence of Equant’s failure to comply with a term or condition of the
Services Agreement other than Schedule T (‘Operations and Procedures
Manual’).
	 
	6.6.	 	Call Centres



Services in respect of call centres will be provided in accordance with
Schedule U (‘Call Centres’).



	6.7.	 	Outsourcing Support



Outsourcing support will be provided in accordance with Schedule V
(‘Outsourcing Support’),



	6.8.	 	Type A Support



Type A support will be provided in
accordance with Schedule X (‘Type
A Support’).



	6.9.	 	Class A Addresses Space



Class A addresses space will be administered in
accordance with Schedule Y (‘Class A
Addresses’).




	 	 	 
	

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	7.	 	EXCLUSIVITY AND NON-SOLICITATION
	 
	7.1	 	Effective Period
	 
	(a)	 	The effective period of the provisions set out in this clause 7 shall
commence from and including the Effective Date and shall continue in
effect for a period of five (5) years (the ‘Effective Period’) unless
terminated earlier in accordance with the terms of this Agreement or
extended as agreed by the Parties.
	 
	(b)	 	Not later than six (6) months prior to the end of the Effective Period,
the Parties shall discuss in good faith with a view to agreeing whether,
at the end of the Effective Period, the provisions of this clause 7 are to
be renewed.
	 
	7.2	 	Exclusive Provider of Network Services
	 
	(a)	 	During the Effective Period, Equant will be the exclusive supplier of
Network Services to SITA SC and the SITA Group Companies, and SITA SC and
the SITA Group Companies will not purchase Network Services from any
provider of Network Services other than Equant (or one of Equant’s
Affiliates) that is a competitor of Equant, without the express written
authorisation of Equant, which Equant in its sole and absolute discretion
may withhold or condition but not delay, except that:




	 	(i)	 	SITA SC may enter into outsourcing arrangements with a
customer that includes the temporary management of that customer’s
then-existing Network Services that are provided by a provider other
than Equant or one of Equant’s Affiliates, provided that:




	 	(A)	 	SITA SC must provide prompt written notice to
Equant pursuant to clause 30.2 that it is engaging in such
activity;





	 	(B)	 	SITA SC shall not migrate Network Services
already provided by Equant to the non-Equant arrangements and
shall not establish new Network Services under such
non-Equant arrangements (other than extensions and additions
to the Network Services that are required by the specific
outsourcing customer concerned); and





	 	(C)	 	SITA SC and Equant shall co-operate and use
commercially reasonable efforts to migrate such Network
Services to the Network as soon as commercially and
operationally feasible following the date that SITA SC enters
such outsourcing arrangements.





	 	(ii)	 	If a SITA SC customer or the Air Transport Community has a
specific requirement for a product or service that Equant is unable
to provide (or that Equant is unable to provide within a particular
Country) within the time frame required by such customer or the Air
Transport Community, then SITA SC may procure such product or
service from a Network Services provider other than Equant (or one
of Equant’s Affiliates), provided that:





	 	 	 
	

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	 	(A)	 	SITA SC raises such requirement to the Product
Council promptly after it becomes aware of such requirement,
if necessary requesting an ad hoc meeting of the Product
Council as permitted by Schedule C (‘Product Council
Mandate’), it being understood that the Product Council must
determine at such meeting whether Equant can provide a
product or service that meets such requirement within the
time frame required by such customer or the Air Transport
Community. If the Product Council determines that Equant
cannot provide a product or service to meet such requirement
within such timeframe, then Equant shall notify SITA SC in
writing within ten (10) Business Days of such Product Council
meeting of the date by which Equant reasonably expects to be
able to offer a product or service that meets such
requirement;





	 	(B)	 	If the Product Council determines that Equant
cannot provide the relevant product or service as required
pursuant to clause 7.2(a)(ii)(A) above, SITA SC may promptly
provide written notice to Equant of its requirement to
procure such product or service from a third party Network
Services provider;





	 	(C)	 	Promptly after delivery of the written notice
referred to in clause 7.2(a)(ii)(B) above, Equant and SITA SC
jointly (1) determine a procurement strategy for such product
or service; (2) identify one or more potential providers of
such product or service; (3) conduct a procurement process
pursuant to the agreed procurement strategy; and (4)
negotiate and execute an appropriate contract with a third
party provider for the provision of such product or service.
Equant and SITA SC will reasonably agree on which of them (or
both) will be parties to such contract;





	 	(D)	 	In negotiating the contract referred to in
clause 7.2(a)(ii)(C), the Parties have due regard for (1) the
date that Equant expects that the Network will be able to
offer the product or service concerned; and (2) the
commercial and technical requirements of Equant, SITA SC, and
the concerned member(s) of the Air Transport Community;





	 	(E)	 	The product or service concerned is procured as
a Pass-Through Expense. Equant shall manage the provisioning
and operation of the product or service concerned, and may
charge the management fee set out under clause 18.6 and
Schedule R (‘Tail Circuit Management’) in respect of Equant’s
management of Pass-Through Expenses;





	 	(F)	 	The fees paid to all such third party Network
Services providers in respect of any given Billing Period, in
the aggregate, to not [*] of the Service
Charges payable to Equant for Network Services in respect of
the same Billing Period without the written Consent of
Equant;






	 	 	 
	

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	 	(G)	 	SITA SC migrates such customer requirement to a
suitable Equant product or service within a reasonable period
after such Equant product or service is made available (it
being understood that if Equant produces such product or
service significantly prior to the date that it had earlier
informed SITA SC pursuant to clause 7.2(a)(ii)(A) such
product or service would be available, that a ‘reasonable
period’ shall be determined by reference to the term of the
contract executed with the third-party Network Services
provider in compliance with clause 7.2(a)(ii)(D)).





	 	(iii)	 	SITA INC may enter into such agreements and arrangements,
and take the actions set out in clause 7.3, subject to the
limitations and other provisions set out therein.
	 
	 	(iv)	 	With respect to any proposed customer contract for which
domestic data network connections in the Benchmarking Region [*] (‘[*] Domestic Contract’) SITA SC will have the
right to purchase, on a case-by-case basis, the domestic data
network requirements for such contracts in [*] (‘[*] Requirements’) from a third party [*] network provider (a
‘[*] Provider’) subject to the following conditions:




	 	(A)	 	SITA SC shall first deliver written notice to
Equant outlining its [*] Requirements and the time frame
associated with the bid for [*] Requirements. Equant has
the right within thirty (30) days of receipt of such notice
(or such shorter period as is necessitated by the time frame
associated with the bid) to propose terms and conditions to
SITA SC upon which Equant will agree to provide such [*]
Requirements. If Equant determines not to submit a proposal
or has not submitted a proposal within such 30 day period (or
such shorter period), or SITA SC determines that Equant’s
proposal is not competitive, SITA SC may solicit bids for
such [*] Requirements from [*] Providers, provided however that
one such [*] Provider solicited will be Equant’s major [*] as at the Effective Date (the ‘Preferred
Supplier’).





	 	(B)	 	If Equant has submitted a proposal with respect
to such [*] Requirements, then, before accepting any firm
offer submitted in such bid process by a [*] Provider (each, a
‘[*] Provider Offer’), SITA SC shall disclose, to the extent
permitted by relevant confidentiality obligations, commercial
arrangements of the lowest priced [*] Provider Offer to Equant
who shall have the right to make a second proposal for such
[*] Requirements within fifteen (15) days (or such shorter
period as is necessitated by the time frame associated with
the bid). If Equant’s second proposal complies with clause
7.2(a)(iv)(D), then SITA SC has the obligation to accept such
second proposal.





	 	 	 
	

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	 	(C)	 	If Equant has not submitted a proposal and the
Preferred Supplier has submitted a [*] Provider Offer, then
before accepting any other [*] Provider Offer, SITA SC shall
disclose, to the extent permitted by relevant confidentiality
obligations, commercial arrangements of the lowest priced [*] Provider Offer to the Preferred Supplier, who shall have the
right to make a second offer within fifteen (15) days (or
such shorter period as is necessitated by the time frame
associated with the bid). If the Preferred Supplier’s second
offer complies with clause 7.2(a)(iv)(D), then SITA SC has
the obligation to accept such second offer.





	 	(D)	 	It is expressly agreed that if either Equant’s
proposal or the Preferred Supplier’s [*] Provider Offer is
[*] of the lowest priced [*] Provider
Offer received by SITA SC in the bidding process described
above then SITA SC must select either Equant or the Preferred
Supplier.





	 	(E)	 	If neither Equant nor the Preferred Supplier
has submitted an offer, or SITA SC does not accept either
Equant’s proposal or the Preferred Supplier’s [*] Provider
Offer pursuant to clause 7.2(a)(iv)(A), clause 7.2(a)(iv)(B)
or clause 7.2(a)(iv)(C), then SITA SC shall have the right to
purchase its [*] Requirements from the [*] Provider submitting
the lowest priced [*] Provider Offer. Equant shall have the
opportunity to be the contracting party to the contract with
such [*] Provider. All products or services under such
contract shall be procured as a Pass-Through Expense.





	 	(F)	 	If SITA SC is obtaining its [*] Requirements
from a [*] Provider pursuant to this clause 7.2(a)(iv), Equant
shall manage the provisioning and operation of the product
and/or service concerned, and, unless such [*] Provider is the
Preferred Supplier, Equant may charge a [*] management fee and SITA SC will be responsible for the
incremental costs of interconnecting and interoperation with
the [*] Provider’s network. If SITA SC is obtaining its [*] Requirements from the Preferred Supplier, Equant shall not be
entitled to receive a management fee and shall bear all costs
of interconnection and interoperation.





	 	(G)	 	In each case, Equant shall provide support for
the interconnection and interoperation of the Network with
the network of whichever [*] Provider is chosen by SITA SC.





	 	(H)	 	The [*] Provider Offer disclosed by SITA SC to
Equant pursuant to clause 7.2(a)(iv)(B) may be subject to an
independent audit (at the request of either SITA SC or
Equant) in order to compare the price/quality of the [*] Provider Offers.





	 	 	 
	

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	 	(I)	 	SITA SC’s right to solicit bids from an
alternate [ * ] Provider for its [ * ] Requirements applies to all
new [ * ] Domestic Contracts and renewals of existing [ * ] Domestic Contracts with the exception of the contract in
effect as of the Effective Date with [ * ].





	 	(J)	 	If SITA SC also provides international services
pursuant to such contract with such [ * ] Requirements, SITA SC
will use the Network.





	 	(K)	 	If Equant ceases to have a distribution
relationship with the Preferred Supplier, then clause
7.2(a)(iv)(C) shall no longer apply and SITA SC may select any
[ * ] Providers to enter into the bidding process, subject to
[ * ] test against Equant’s
proposal and compliance with clause 7.2(a)(iv)(F) above.





	(b)	 	From the date on which SITA INC is no longer Controlled by the SITA INC
Foundation, the Exclusivity Obligation in respect of SITA INC and its
Controlled Affiliates shall expire on the earliest to occur of:




	 	(i)	 	the fourth anniversary of the date on which the SITA INC
Foundation transferred Control of SITA INC and its Controlled
Affiliates;
	 
	 	(ii)	 	the date that the Exclusivity Obligation expires or is
terminated in respect of SITA SC and the SITA Group Companies; or
	 
	 	(iii)	 	the expiration or termination of this Agreement.




	(c)	 	During the Term, the Network Services which are provided by Equant to
SITA INC and its Controlled Affiliates shall be provided under all the
terms and conditions of this Agreement, including pricing and Service
Levels.
	 
	(d)	 	In the event that SITA SC or SITA INC, as the case may be, is required to
request approval, authorisation or Consent of Equant, and submits a
written request to Equant (with a copy forwarded to the Equant Project
Executive) for such approval, authorisation or Consent, Equant shall
respond to such request within thirty (30) days of receipt thereof.
Equant may have one thirty (30) day extension of this deadline by
providing written notice of such extension to SITA SC or SITA INC, as
applicable, prior to the deadline. Further extensions of such deadline
will be subject to the Consent of SITA SC or SITA INC, as the case may be.
If no Equant response to such request is received by the applicable
deadline, SITA SC or SITA INC, as applicable, may give final written
notice to Equant (with a copy forwarded to the Equant Project Executive)
that no response to such request has been received from Equant. If Equant
makes no written response to such final notice within seven (7) days of
the receipt thereof, Equant’s express written approval, authorisation or
Consent shall be deemed to have been granted.
	 
	7.3	 	SITA INC Outsourcing or Merger Activity
	 
	(a)	 	Subject to the limitations set out in this clause 7.3, nothing in this
clause 7 shall otherwise be interpreted as precluding SITA INC and/or its
Controlled Affiliates from conducting




	 	 	 
	

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	 	 	their normal business activities (which may include (i) outsourcing a
network which includes provisioning of Network Services from a third
party; or (ii) engaging in any other activity, such as an acquisition of,
equity investment in, a third party) that results in the use of Network
Services of a provider other than Equant or one of Equant’s Affiliates.
	 
	(b)	 	In the event that SITA INC or one of its Controlled Affiliates:




	 	(i)	 	enters into an outsourcing agreement with a customer which
includes the management of that customer’s then-existing Network
Services that are provided by a provider other than Equant or one of
Equant’s Affiliates; or
	 
	 	(ii)	 	acquires or makes an investment in a third party, and as a
result of such activity it acquires then-existing Network Services
that are provided to such third party by a provider other than
Equant or one of Equant’s Affiliates,
	 
	 	 	 	then:




	 	(A)	 	SITA INC must provide prompt written notice
pursuant to clause 30.2 to Equant and to SITA SC that SITA
INC is engaging in such activity;





	 	(B)	 	SITA INC and/or its Controlled Affiliates shall
not migrate Network Services already provided by Equant to
such non-Equant arrangements and shall not establish new
Network Services under such non-Equant arrangements (other
than extensions and additions to the Network Services that
are required by the specific outsourcing customer concerned);
and





	 	(C)	 	SITA INC and/or its Controlled Affiliates and
Equant shall co-operate and use commercially reasonable
efforts to migrate such Network Services to Equant as soon as
commercially and operationally feasible following the date
that SITA INC and/or one of its Controlled Affiliates enters
into such outsourcing arrangements.





	(c)	 	In the event that SITA INC and/or one of its Controlled Affiliates
engages in activity described in clause 7.3(b) above during the applicable
exclusivity period as set out in clause 7.2(a) and clause 7.2(c), then
SITA INC’s Non-Equant Network Services Revenue shall not exceed either:




	 	(i)	 	[ * ] of the combined Overall Revenue of SITA INC and its
Controlled Affiliates and their respective minority-owned affiliated
entities; or
	 
	 	(ii)	 	[ * ] of the Network Services Revenue of the SITA Group
Companies.




	(d)	 	If, as at any semi-annual date of calculation and assessment described in
clause 7.3(h), the value of SITA INC’s Non-Equant Network Services
Revenue exceeds either threshold set out in clause 7.3(c), then:





	 	 	 
	

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	 	(i)	 	SITA INC must provide prompt written notice pursuant to
clause 30.2 to Equant and to SITA SC that SITA INC’s Non-Equant
Network Services Revenue exceeds one or both of the thresholds set
out in clause 7.3(c) above (specifying which threshold is exceeded
if only one is exceeded); and
	 
	 	(ii)	 	SITA SC and SITA INC shall have six (6) months commencing
from the semi-annual date of calculation and assessment upon which
either threshold set out in clause 7.3(c) was exceeded (the ‘Remedy
Period’) to take whatever action is deemed to be necessary by SITA
SC and/or SITA INC, as applicable, to bring SITA INC’s Non-Equant
Network Services Revenue into compliance with both thresholds set
out in clause 7.3(c) above.




	(e)	 	If SITA INC fails to bring its Non-Equant Network Services
Revenue into compliance with both thresholds set out in clause 7.3(c)
within the Remedy Period, then the Related Provisions will automatically
terminate.
	 
	(f)	 	If at the end of the Remedy Period SITA INC has not brought the SITA INC
Non-Equant Network Services Revenue into compliance with both thresholds
set out above in clause 7.3(c) above and SITA INC’s Non-Equant Network
Services Revenue exceeds either:




	 	(i)	 	[ * ] of the combined Overall Revenue of SITA INC and its
Controlled Affiliates and their respective minority-owned affiliated
entities; or
	 
	 	(ii)	 	[ * ] of the Network Services Revenue of the SITA Group
Companies,
	 
	 	then Equant in its sole and absolute discretion will have the option to
terminate this Agreement.





	(g)	 	If the SITA INC Foundation transfers Control of SITA INC or one of its
Controlled Affiliates (each legal entity in respect of which Control was
transferred being a ‘Transferred Company’) and either the Transferred
Company or the purchaser of the Transferred Company has agreed with Equant
to be bound by the Exclusivity Obligation for four (4) years from the date
on which Control transfers (or for the remainder of the Effective Period,
if less than four (4) years remain of the Effective Period), then:




	 	(i)	 	as between the Transferred Company (or the purchaser of the
Transferred Company) and Equant, the terms of that agreement and not
the terms of this Agreement will apply;
	 
	 	(ii)	 	the Network Services Revenue, Non-Equant Network Services
Revenue and Overall Revenue of the Transferred Company will not be
included in the calculation of the thresholds set out above in
clause 7.3(c) and clause 7.3(f); and
	 
	 	(iii)	 	the remaining SITA Group Companies shall be deemed to be in
compliance with these Exclusivity Obligations for all purposes with
respect to the Transferred Company, provided that SITA SC has used
commercially reasonable endeavours to enforce the relevant
contractual provisions in respect of the Transferred Company.





	 	 	 
	

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	(h)	 	For the purpose of the calculations required in clause 7.3, Network
Services Revenue, Overall Revenue, and Non-Equant Network Services Revenue
shall be measured and assessed on a [ * ].
	 
	7.4	 	Equant Non-Solicitation Obligation
	 
	(a)	 	On or after the Effective Date and subject to clause 7.3(e), Equant and
its Controlled Affiliates shall not during the Effective Period directly
or indirectly make Active Sales of Network Services to the Air Transport
Community.
	 
	(b)	 	If at any time during the Effective Period:




	 	(i)	 	SITA SC notifies Equant in writing of SITA SC’s decision to
cease selling Network Services to all of the Air Transport
Community, then the Equant Non-Solicitation Obligation will
terminate. Equant and its Controlled Affiliates shall not take any
action inconsistent with clause 7.4(a) unless and until SITA SC
provides notice pursuant to clause 30.2 of such a decision;
provided, however, that if SITA SC takes such a decision it shall
promptly provide notice of such decision to Equant; and
	 
	 	(ii)	 	SITA SC notifies Equant in writing of SITA SC’s decision to
cease selling Network Services in a particular geographic area or
Country, then the Equant Non-Solicitation Obligation will terminate
in respect of such geographic area or Country. Equant and its
Controlled Affiliates shall not take any action inconsistent with
clause 7.4(a) unless and until SITA SC provides notice pursuant to
clause 30.2 of such a decision; provided, however, that if SITA SC
takes such a decision it shall promptly provide notice of such
decision to Equant.




	(c)	 	If SITA SC has given written notice to Equant of any of the decisions set
out in clause 7.4(b) above, a subsequent SITA SC decision to re-enter the
relevant market will not re-instate the Equant Non-Solicitation
Obligation.
	 
	7.5	 	SITA Group Companies Non-Solicitation Obligation



On or after the Effective Date and subject to clause 7.3(e), the SITA Group
Companies shall not during the Effective Period directly or indirectly make
Active Sales of Network Services to customers other than the Air Transport
Community.



	7.6.	 	Limitation



The Equant Non-Solicitation Obligation and the SITA Group Companies
Non-Solicitation Obligation apply only to the provision and sale of Network
Services (including Network Services that are bundled with services other than
Network Services) and do not in any way restrict Equant, SITA SC, SITA INC or
the SITA Group Companies from providing services other than Network Services,
either directly or through any of their respective Affiliates, in any market
sector or Country.




	 	 	 
	

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	7.7	 	Linkage of the Related Provisions
	 
	(a)	 	If any of the Related Provisions, or the application thereof to any
Person or circumstances, is found to be invalid, illegal, void or
unenforceable for any reason whatsoever by a court of competent
jurisdiction or other competent governmental or regulatory agency or
authority (including without limitation by law, statute, ordinance, rule,
regulation, code, order, decree, judgment or injunction), then from the
effective date of such law, statute, ordinance, rule, regulation, code,
order, decree, judgment or injunction, then this Agreement shall be
automatically amended to delete clause 7 from this Agreement in its
entirety, with the exception of clause 7.8.
	 
	(b)	 	If any of the Related Provisions, or the application thereof to any
Person or circumstances, is found for any reason whatsoever by a court of
competent jurisdiction or other competent governmental or regulatory
agency or authority (including without limitation by law, statute,
ordinance, rule, regulation, code, order, decree, judgment or injunction)
to be valid and enforceable for a reduced duration or within a narrower
geographic scope than exists as at the date such finding is made, then the
Related Provisions shall be automatically amended to reflect such
reduction in duration or geographic scope, as the case may be, and the
revenues that SITA INC, its Controlled Affiliates and/or the SITA Group
Companies (as applicable) derived from activities which are not covered by
the Related Provisions (eg., activities outside their narrowed geographic
scope) shall not be used for the purpose of the calculations described in
clause 7.3(c) or clause 7.3(f).
	 
	(c)	 	If any of the Related Provisions, or the application thereof to any
Person or circumstances, for any reason whatsoever is found by a court of
competent jurisdiction or other competent governmental or regulatory
agency or authority, to be limited as to its validity, legality or
enforceability (including without limitation by law, statute, ordinance,
rule, regulation, code, order, decree, judgment or injunction) other than
as described in clause 7.7(a) or clause 7.7(b), then the Parties shall
agree in good faith appropriate amendments to this clause 7 that (a)
reflect the specific finding of such a court or other competent
governmental or regulatory agency or authority or such reduction or
limitation (including, if necessary, deleting such affected clause in its
entirety from this Agreement), and (b) reach a commercial equivalent
(including, if necessary, deleting this clause 7 in whole or in part from
this Agreement) so as to ensure that all the Related Provisions are of the
same or similar validity, legality, enforceability, duration and scope and
to ensure that the symmetry and balance existing as of the Effective Date
among the respective obligations of the SITA Group Companies, France
Telecom and Equant under the Related Provisions is restored and
maintained.
	 
	7.8.	 	Effect of Deletion or Amendment of Related Provisions
	 
	(a)	 	If Equant terminates the Related Provisions pursuant to clause 7.9(d),
then effective on the date of such termination:




	 	 	 
	

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	 	(i)	 	the right of the SITA SC board of directors to designate a
person to be appointed to serve as a member of the Supervisory Board
of Equant set out in clause 5 of the Strategic Relationship Umbrella
Agreement shall terminate;
	 
	 	(ii)	 	any right set out in this Agreement, the Strategic
Relationship Umbrella Agreement, or the Transition and Management
Agreement that entitles SITA SC and/or SITA INC to obtain any
information from Equant that exceeds the level or quantity of
information that a major customer would normally receive from a
vendor in a transaction that does not involve a strategic
relationship shall terminate; and
	 
	 	(iii)	 	any right set out in this Agreement, the Strategic
Relationship Umbrella Agreement, or the Transition and Management
Agreement that entitles Equant to obtain any information from SITA
SC and/or SITA INC that exceeds the level or quantity of information
that a vendor would normally receive from a major customer in a
transaction that does not involve a strategic relationship shall
terminate.




	(b)	 	If the Related Provisions are deleted or amended as described in clause
7.7, or lapse or are not renewed as described in clause 7.1(b), then the
Parties shall discuss and agree in good faith appropriate deletions or
amendments to provisions of this Agreement and the Strategic Relationship
Umbrella Agreement (including specifically the right of the SITA SC board
of directors to designate a person to be appointed to the Supervisory
Board of Equant pursuant to clause 5 of the Strategic Relationship
Umbrella Agreement and any right of SITA SC, SITA INC and Equant to obtain
any level or quality of information in excess of that which would normally
be available to such Party in a transaction that does not involve a
strategic relationship (the ‘Strategic Relationship Benefits’)) to ensure
that the Parties’ original commercial intentions are achieved as much as
possible, but also recognising the importance of the interdependency
between the Related Provisions and the Strategic Relationship Benefits, so
that the symmetry and balance existing as at the Effective Date among the
respective obligations of the SITA Group Companies, France Telecom and
Equant is restored and maintained.
	 
	7.9.	 	Breach of Exclusivity and Non-Solicitation Provisions
	 
	(a)	 	If either Equant or SITA SC believes that the other Party has breached
the Exclusivity Obligation, the Equant Non-Solicitation Obligation or the
SITA Group Companies Non-Solicitation Obligation, as applicable, then that
Party shall give written notice of such alleged breach to all Parties to
this Agreement and to France Telecom. The delivery of such notice will
also be deemed to be a referral of the alleged breach to the dispute
resolution procedure pursuant to clause 29.
	 
	(b)	 	Following the delivery of a notice of such alleged breach pursuant to
clause 7.9(a), the Parties concerned shall promptly initiate the informal
dispute resolution procedure. The Executive Committee shall promptly meet
for the purpose of determining whether such breach is a material breach of
the Exclusivity Obligation, the Equant Non-Solicitation Obligation or the
SITA Group Companies Non-Solicitation Obligation, as applicable,




	 	 	 
	

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	 	 	with such determination to be made within fourteen (14) days of the
effective date of the notice delivered pursuant to clause 7.9(a). If
the Executive Committee has not made such a determination within such
fourteen day period, then either Party may escalate the matter to the
chief executive officer of Equant and the Director General of SITA SC for
resolution. If no resolution is reached by the chief executive officer
of Equant and the Director General of SITA SC within seven (7) days, then
either Party may initiate the formal dispute resolution procedure, which
formal dispute resolution procedure shall take place on an expedited
basis. The arbitrator shall be empowered only to determine (i) if a
breach of the Exclusivity Obligation or the Equant Non-Solicitation
Obligation or the SITA Group Companies Non-Solicitation Obligation has
occurred; and (ii) if so, whether such breach is a material breach of
such obligations. After the arbitrator makes such determination, the
arbitration proceedings shall be recessed, pending possible resumption
pursuant to clause 7.9(e)(iv).
	 
	(c)	 	If it is determined pursuant to clause 7.9(b) that Equant has committed a
material breach of the Equant Non-Solicitation Obligation, then within
thirty (30) days following the date of such determination:




	 	(i)	 	SITA SC may terminate the Related Provisions upon delivery of
written notice to Equant, SITA INC and France Telecom;
	 
	 	(ii)	 	With immediate effect as at the date of delivery of such
notice, the Related Provisions shall lapse and the Effective Period
shall terminate; and
	 
	 	(iii)	 	Equant shall retain the contractual relationship with the
customer(s) that are the subject of the breach; and
	 
	 	(iv)	 	SITA SC shall be entitled to monetary damages as set out in
clause 7.9(e).




	(d)	 	If it is determined pursuant to clause 7.9(b) that the SITA Group
Companies have committed a material breach of the Exclusivity Obligation
or of the SITA Group Companies Non-Solicitation Obligation then within
thirty (30) days following the date of determination:




	 	(i)	 	Equant may terminate the Related Provisions upon delivery of
written notice to SITA SC, SITA INC and France Telecom;
	 
	 	(ii)	 	With immediate effect as at the date of delivery of such
notice, the Related Provisions shall lapse and the Effective Period
shall terminate; and
	 
	 	(iii)	 	If the breach is a breach of the SITA Group Companies
Non-Solicitation Obligation, then the SITA Group Companies shall
retain the contractual relationship with the customer(s) that are
the subject of the breach; and
	 
	 	(iv)	 	Equant shall be entitled to monetary damages as set out in
clause 7.9(e).




	(e)	 	If either Equant or the SITA Group Companies have committed a material
breach of one of the Related Provisions, then either SITA SC or Equant
(whichever is the non-





	 	 	 
	

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	 	 	breaching Party) shall be entitled to recover monetary damages from the
other as set out below:






	(i)	 	If the breach concerned is of the Equant Non-Solicitation
Obligation or the SITA Group Companies’ Non-Solicitation Obligation,
the measure of damages shall be the greater of:






	 	(A)	 	the margin that the breaching Party would
receive over the entire term of the relevant customer
contract that is the subject of the breach; or





	 	(B)	 	the margin that the non-breaching Party would
have received over the entire term of the relevant customer
contract that is the subject of the breach.





	(ii)	 	If the breach concerned is of the Exclusivity Obligation, the
measure of damages shall be the profit that Equant would have
actually received had the Network Services that are the subject of
such breach been obtained from Equant. Such damages shall be the
value of such profit calculated over the entire term of the Network
Services contract (or other relevant arrangement) that is the
subject of such breach;
	 
	(iii)	 	Equant and SITA SC shall attempt to agree on the value of
the monetary damages through the informal dispute resolution
procedure set out in clause 8.1 of the Strategic Relationship
Umbrella Agreement. If Equant and SITA SC are able to agree on the
value of the monetary damages, then the Party committing the
material breach in question shall pay such monetary damages on a
quarterly basis to the non-breaching Party, without any obligation
for the Party to which such monetary damages are due presenting any
notice or demand in respect thereof;
	 
	(iv)	 	If Equant and SITA SC do not agree as to the value of the
monetary damages within sixty (60) days after
a determination pursuant to clause 7.9(b) that a material
breach of the relevant Related Provision has occurred, then:




	 	(A)	 	The non-breaching Party may refer the issue of
monetary damages to formal dispute resolution pursuant to
clause 8.2 of the Strategic Relationship Umbrella Agreement.
If the issue of material breach was determined by an
arbitrator pursuant to clause 7.9(b), then the same
arbitrator shall determine the issue of monetary damages. In
the arbitration to determine the amount of the monetary
damages, the Parties may make use of, and the arbitrator may
take regard of, any evidence introduced by either Party in
the earlier arbitration;





	 	(B)	 	Each of the non-breaching Party and the
breaching Party shall submit to the arbitrator a proposed
package that encompasses all elements of margin that each
such Party believes the non-breaching Party should be
entitled to receive pursuant to clause 7.9(e);





	 	 	 
	

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	 	(C)	 	The arbitration shall be conducted on an
expedited basis, as follows:





	 	I)	 	The arbitration will be conducted
on the basis of written submissions only; the
arbitrator will not be empowered to take testimony from
live witnesses;





	 	II)	 	Each Party shall deliver to the
other Party such information as is reasonably requested
to enable such Party to prepare its proposed package
(including disclosing the commercial arrangements of
the relevant customer contract(s)) as promptly as
possible following such request, but in no case later
than fifteen (15) days following the selection of the
arbitrator;





	 	III)	 	Each Party to the arbitration may
submit a written submission in support of its proposed
package, which shall be no longer than fifty (50) pages
in length, which shall be due thirty (30) days
following the due date for delivery of information
pursuant to clause 7.9(e)(iv)(C)II);





	 	IV)	 	Each Party to the arbitration may
submit a written submission rebutting the other Party’s
argument, which shall be no longer than fifteen (15)
pages in length, which shall be due fifteen (15) days
following the due date of the written submissions;





	 	V)	 	Each Party may make an oral
presentation to the arbitrator of no longer than two
(2) hours in length, with the date for oral argument
set at the mutual convenience of the arbitrator and the
Parties concerned, but no longer than thirty (30) days
following the due date of the written submission
without the Consent of the Parties to the arbitration;
and





	 	VI)	 	The arbitrator must issue his or
her award within fifteen (15) days following the date
of the oral presentations, without presenting any
written or oral opinion presenting any reasons
justifying such award.





	 	(D)	 	The arbitrator shall be empowered to select as
the arbitrator’s award only the entire proposed package
submitted by one of the Parties. For the avoidance of doubt,
the arbitrator may not vary the terms or amount of a Party’s
proposed package. The arbitrator may not make an award that
encompasses elements of both proposed packages or fashion its
own award; and





	 	(E)	 	The Party determined to have committed the
material breach in question shall pay such monetary damages
quarterly to the non-breaching Party pursuant to the terms of
the award, without any obligation for the Party to which such
monetary damages are due presenting any notice or demand in
respect thereof.





	 	 	 
	

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	(f)	 	In the event that there is a material breach of the Related Provisions,
the sole remedies for such breach are set out in this clause 7.9. No
Party shall be entitled to collect damages (other than those specifically
set out in this clause 7.9) or obtain any other relief that might
otherwise be available at law or in equity (including the right to
terminate this Agreement, the Strategic Relationship Umbrella Agreement,
or the Transition and Management Agreement) in respect of such breach.
	 
	8.	 	SERVICE LEVELS
	 
	8.1.	 	General
	 
	(a)	 	Equant will provide the Network Services in accordance with the Service
Levels and Key Measurements set forth in Schedule F (‘Service Levels
Schedule’).
	 
	(b)	 	Schedule F (‘Service Levels Schedule’) sets out the Performance Targets
for each Service Level and Key Measurements.
	 
	8.2.	 	Failure to Perform
	 
	(a)	 	During calendar year 2001:




	 	(i)	 	the operational targets agreed by Equant and SITA SC relating
to calendar year 2001 pursuant to the JV Agreement will continue to
apply to the Network Services;
	 
	 	(ii)	 	any issues relating to Equant’s performance will be dealt
with by the Network Operational Performance Committee.




	(b)	 	During calendar year 2002 and thereafter:




	 	(i)	 	any Service Level Default will entitle SITA SC to receive
Service Credits or the other remedies as set forth in Schedule F
(‘Service Levels Schedule’);
	 
	 	(ii)	 	for any Service Level Default Equant will carry out the
remedial actions set forth in Schedule F (‘Service Levels
Schedule’); and
	 
	 	(iii)	 	for any failure to meet Key Measurements for [ * ], the Parties will agree an action plan to improve Equant’s
performance as set out in Schedule F (‘Service Levels Schedule’).




	8.3.	 	Service Credits



Schedule F (‘Service Levels Schedule’) sets forth the Service Credits payable
by Equant for a failure to meet the specified targets for each Service Level.




	 	 	 
	

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	9.	 	TAXES
	 
	9.1.	 	General



All amounts payable under this Agreement are exclusive of any taxes that may be
imposed upon such amounts payable in accordance with applicable Law, including
any sales tax, value-added tax, or other similar taxes imposed by any country,
state, department, city, locality or other taxing authority. All such taxes,
with the exception of any taxes imposed on income (including any withholding
tax on income), shall be paid by the Party responsible for paying such amounts
payable as additional charges. The Parties will provide any applicable tax
invoices, certificates of deduction of tax or other documents as required in
connection with such taxes.



	9.2.	 	Billing Entities, Billed Entities and Remitting Entities



The Parties will agree which Equant legal entities shall issue particular
invoices, which SITA Group Companies will be the legal entities that are the
customer of record to which particular invoices are rendered, and which SITA
Group Companies will be the legal entities that remit amounts due under
particular invoices. As at the Effective Date, the billing entities, billed
entities, and remitting entities are set out in Schedule H (‘Billing Entities, Billed
Entities and Remitting Entities’). Following the Effective Date, changes to
the billing entities, billed entities and remitting entities will be agreed by
the Parties. Such changes need not be recorded in formal amendments to
Schedule H, so long as such changes are agreed in writing by the Parties
concerned (eg., a service request change order submitted by SITA SC and
accepted by Equant).



	10.	 	PRICING OF PRODUCTS AND SERVICES
	 
	10.1.	 	Pricing Categories and Prices
	 
	(a)	 	Pricing categories




	 	(i)	 	The Services are set out under Schedule I (‘Schedule of
Services’) which includes a further classification of the Services
as consisting of the Priced Services, Exception Priced Services,
Standard Cost Services and Pass Through Services.
	 
	 	(ii)	 	Under Schedule I (‘Schedule of Services’), each Service is
further identified and classified as being (i) either a Cost Base
Service or a Non-Cost Base Service; and (ii) either a SITA Specific
Product/Service or a Generic Product/Service. The Parties shall
periodically agree amendments to Schedule I (‘Schedule of
Services’) and Price Books throughout the Term such that Schedule I
(‘Schedule of Services’) and the then current Price Books reflects
the Services and products provided by Equant to SITA SC, SITA INC
and the SITA Group Companies at all times.
	 
	 	(iii)	 	Unless otherwise agreed in writing by the Parties in any
amendments to Schedule I (‘Schedule of Services’) and/or the Price
Books with respect to new products and/or services that are similar
to Cost Base Services (as agreed at the





	 	 	 
	

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	 	 	 	Effective Date) shall be Cost Base Services. For the avoidance of
doubt, all existing and future data services and/or products,
specifically including on-net integrated data and voice services
like VoIP and VoFR shall be Cost Base Services.
	 
	 	(iv)	 	In addition to Schedule I (‘Schedule of Services’), the
Services are also set out under the Price Books, however, the
Parties hereby agree that the Price Books shall not be interpreted
as constituting an exclusive list of all Services provided by Equant
to SITA SC, SITA INC and the SITA Group Companies prior to the
Effective Date pursuant to the JV Agreement.




	(b)	 	Prices




	 	(i)	 	The Priced Services shall be provided by Equant to SITA SC,
SITA INC and the SITA Group Companies at Net Price Book Prices, such
prices to be determined in accordance with the provisions of clause
10. The “Priced Service Charges” are calculated as being the amount
payable by SITA SC and/or SITA INC to Equant with respect to the Net
Price Book Activity.
	 
	 	(ii)	 	Exception Priced Services shall be provided by Equant to SITA
SC, SITA INC and the SITA Group Companies at a price per Service
agreed between the Parties in their sole and absolute discretion,
on an ad hoc basis and the Parties shall update the Price Books to
reflect such Exception Priced Services on an ad hoc basis.
Exception Priced Services shall be provided to SITA SC, SITA INC and
the SITA Group Companies at a price that is less than the price of
an equivalent Priced Service. The “Exception Priced Service
Charges” are calculated as being the amount payable by SITA SC
and/or SITA INC to Equant with respect to the Net Price Book
Activity.
	 
	 	(iii)	 	Standard Cost Services shall be provided by Equant to SITA
SC, SITA INC and the SITA Group Companies at a standard unit cost
defined for each service. Standard unit cost values will at all
times be the reflection of the costs incurred by Equant, including
direct manpower costs and other direct costs associated with each
service, plus associated overheads equal to [*] of
direct costs. The prices payable with respect to the Standard Cost
Services shall be set out in the Price Books. The “Standard Cost
Service Charges” are calculated as being the amount payable by SITA
SC and/or SITA INC to Equant with respect to the Net Price Book
Activity, where appropriate.
	 
	 	(iv)	 	Subject to clause 18.6 and Schedule R (‘Tail Circuit
Management’), Pass Through Services shall be provided by Equant to
SITA SC, SITA INC and the SITA Group Companies [*].




	10.2.	 	Price Books and Price Book Updates
	 
	(a)	 	Provision of Price Books





	 	 	 
	

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	 	(i)	 	As at the Effective Date, the cost sharing mechanism
implemented and performed by Equant and SITA under the terms of the
JV Agreement (the “Cost Share”) will be replaced by the provisions
of clauses 10.2 and 10.3.
	 
	 	(ii)	 	The Price Books shall consist of:




	 	(A)	 	the SITA Specific Price Book which shall
contain the gross prices payable by SITA SC and/or SITA INC
on behalf of SITA SC, SITA INC and the SITA Group Companies
with respect to SITA Specific Services/Products; and





	 	(B)	 	the Generic Price Book which shall contain the
gross prices payable by SITA SC and/or SITA INC on behalf of
SITA SC, SITA INC and the SITA Group Companies with respect
to Generic Services/Products; and





	 	(iii)	 	The Volume Discount Tables shall set out all tables
applicable to the SITA Specific Discounts.
	 
	 	(iv)	 	The price at which Equant offers any Service that is classified as a
Generic Service/Product to SITA SC, the SITA Group Companies and SITA INC shall be
the gross prices set out in the Generic Price Book, less any applicable discounts, which gross prices shall be the same gross
prices offered to Equant’s other distributors or other third parties. 




	(b)	 	Year 2000 Cost Base



The Parties hereby agree that the actual amount of the shared network costs
attributable to and paid for by SITA SC on behalf of SITA SC, SITA INC and the
SITA Group Companies as a result of the Cost Share under the JV Agreement
during the calendar year 2000 is equal to [*] (the “Year 2000
Cost Share”). The value of the Year 2000 Cost Share has been adjusted through
the mutual agreement of the Parties in order to define the “Year 2000 Cost
Base” and the Parties hereby agree that Schedule P sets out the services and/or
products in respect of which the adjustments were agreed (the “Adjustments to
the Year 2000 Cost Share”) and together with those services that have been
agreed between the Parties as constituting the Services constituting the Year
2000 Cost Base and the Parties hereby agree that the value of the Year 2000
Cost Base is equal to [*].



	(c)	 	Contract Year Zero Cost Base



The Contract Year Zero Cost Base shall be calculated by the Parties in
accordance with the provisions of Schedule P (‘Volume and Cost Base
Considerations’) as soon as reasonably possible following the release of the JV
audited financial report for the first six (6) calendar months of the calendar
year 2001.



	(d)	 	Year 2000 Price Books




	 	(i)	 	The services and/or products previously provided by Equant to
SITA SC, SITA INC and the SITA Group Companies under the terms of
the JV Agreement during the calendar year 2000 have been identified
and classified as being either





	 	 	 
	

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	 	 	 	a SITA Specific Product/Service or a Generic Product/Service and
are set out under Schedule B (the “Year 2000 Price Books”).
	 
	 	(ii)	 	In the event that any service or product provided by Equant
to SITA SC, SITA INC and the SITA Group Companies under the terms of
the JV Agreement is either not listed or in respect of which a price
is not set out under the Year 2000 Price Books, Equant shall provide
such service or product to SITA SC, SITA INC and the SITA Group
Companies [*] The Cost Base Services shall not include:




	 	(A)	 	Services provided in respect of the customer
contracts transferred from France Telecom and Global One to
the SITA Group Companies; and





	 	(B)	 	additional voice services provided through the
Global One voice platform that are not within the SITA/Equant
JV platform as at the Effective Date.





	 	 	 	However, if during the Term Equant elects to stop providing voice
services on the SITA/Equant JV platform, then all voice revenues
shall be included in the Cost Base (which shall be correspondingly
adjusted to reflect such additional voice services and volumes)
and all revenues associated with all voice services will from that
point forward be applied toward the Minimum Revenue Commitment.
During the intervening period (the period during which Equant
maintains two voice platforms), voice services that Equant
provides on the Global One platform shall nonetheless be included
in the Cost Base if such services could have been provided within
the current SITA/Equant JV platform.
	 
	 	(iii)	 	It is hereby agreed by the Parties that the prices set out
in the Year 2000 Price Books for calendar year 2000 Cost Base
Services, applied to the activity levels utilised by SITA SC, SITA
INC and the SITA Group Companies with respect to the Cost Base
Services provided by Equant to SITA SC, SITA INC and the SITA Group
Companies during the calendar year 2000, reflects the value of the
Year 2000 Cost Base.
	 
	 	(iv)	 	In the event that the activity relating to a Cost Base
Service or product provided under the terms of the JV Agreement has
not been reflected in the activity levels utilised by SITA SC, SITA
INC and the SITA Group Companies with respect to the Cost Base
Services provided by Equant to SITA SC, SITA INC and the SITA Group
Companies during the calendar year 2000, Equant shall provide such
service or product to SITA SC, SITA INC and the SITA Group Companies [*]




	 	 	 
	

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	 	 	 	[*]
	 
	 	(v)	 	The Parties hereby agree that some service features that are
not itemised in the 2000 Price Books might be introduced in the
Price Books within the first twelve calendar months immediately
following the Effective Date by mutual agreement, such introduction
to be set-off in terms of the total charges to SITA by a
commensurate reduction of the existing prices such that the
application of the expanded 2000 Price Books to the 2000 SITA
activity remains equivalent to the 2000 Cost Base.




	(e)	 	Contract Year One Price Books




	 	(i)	 	The Contract Year One Price Books shall be provided by Equant
to SITA SC and SITA INC as soon as reasonably practical following
the Effective Date and shall be agreed between the Parties prior to
taking effect.
	 
	 	(ii)	 	The Contract Year One Price Books shall include gross prices
together with Net Price Book Prices and details of any and all SITA
Specific Discounts granted by Equant to SITA SC and SITA INC.
	 
	 	(iii)	 	The Contract Year One Price Books shall be identical to the
Year 2000 Price Books in format and pricing structure. “Pricing
Structure” means the relative prices between Priced Services and the
classification of Services in discrete price levels on the basis of
the type of service and/or product, geographic region, originating
country, destination country, capacity and traffic levels, such list
being a non-exclusive list of possible factors taken into
consideration.
	 
	 	(iv)	 	Equant and SITA SC and/or SITA INC, as applicable, shall work
together in order to include a [*] of [ * ]
against the 2000 Unit Cost applicable to Contract Year One within
the Net Price Book Prices.




	(f)	 	Price Book Updates




	 	(i)	 	Throughout the Term, SITA SC shall represent the interests of
SITA INC in connection with the provisions of this clause 10.2 (f).
As promptly as practical after the date on which SITA INC is
no longer Controlled by the SITA INC Foundation, the Parties will
negotiate in good faith appropriate amendments to this clause
concerning the representation of SITA INC by SITA SC.
	 
	 	(ii)	 	Equant shall provide the Preliminary Price Books, the Draft
Price Books and the Price Books to SITA SC, SITA INC and the SITA
Group Companies on an annual basis in accordance with the provisions
of Schedule J (‘Price Book Update Timescale’) unless otherwise agreed
by the Parties.
	 
	 	(iii)	 	Equant shall have sole and absolute discretion to determine
the gross prices to be set out in the Price Books applicable to
Contract Year 2 and thereafter. [*]





	 	 	 
	

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[*]. Equant and SITA SC and/or SITA
INC, as applicable, shall mutually agree the Price Books through
work teams designated by the Parties and this shall include
Pricing Structure, relative price and SITA Discount Tables.
	 
	 	(iv)	 	Equant shall give full details of the gross prices and SITA
Specific discounts in the various pricing documents (for example
Price Books and SITA Specific Discounts including Volume Discount
Tables). The Pricing Structure for the Price Books for Contract
Year 2 onward shall be agreed between the Parties.
	 
	 	(v)	 	Equant shall make certain preliminary versions of the Draft
Volume Discount Tables and Draft Price Books available to SITA SC
and/or SITA INC. The Volume Discount Tables provided by Equant
shall include the financial impact of volumes both less than and
greater than SITA SC and/or SITA INC’s then-current volumes.
	 
	 	(vi)	 	Net prices for the Services set out in the Price Books shall
be adjusted by Equant, subject to the mutual agreement of the
Parties, to include the requirements of sub-clause (g) below. Such
adjustments shall be achieved through either adjustments to the
gross prices set out in the Price Books or through the use of SITA
Specific discounts.
	 
	 	(vii)	 	In the event that the Net Price Book Prices have not been
agreed between the Parties prior to the Price Book Delivery Date (as
defined in Schedule J (‘Price Book Update Timescale’) then the chief
financial officers of Equant N.V., SITA SC and SITA INC shall review
the Price Books and agree Net Price Book Prices, in default of which
the Price Books shall be reviewed by the Executive Committee. The
Executive Committee shall be granted full power and authority to
agree Net Price Book Prices and make the required adjustments to Net
Price Book Prices and/or SITA Specific Discounts, subject to the
provisions of this clause 10.2. In the event that the Executive
Committee fail to agree the Net Price Book Prices, the Parties shall
initiate the Dispute Resolution Process.
	 
	 	(viii)	 	In the event that the Price Books are not agreed prior to the
first calendar day of the applicable Contract Year, the Price Books
for the immediately preceding Contract Year shall remain in effect
until resolution by either the chief financial officers of Equant,
SITA SC and SITA INC; the Executive Committee; or under the Dispute
Resolution Process. Following resolution, the agreed Price Books
shall be put into effect as soon as reasonably possible and any
payments or repayments with respect to adjustments to Net Price Book
Prices arising as a result of application of the agreed Price Books
to the first calendar day of the relevant Contract Year shall be
made between the Parties.
	 
	 	(ix)	 	On an annual basis, in accordance with the provisions of
Schedule J (‘Price Book Update Timescale’), SITA SC and/or SITA INC
(as applicable) shall provide Equant with a forecast of its total
expected revenues, in US Dollars, for the applicable Contract Year
with respect to Network Services (the “Global





	 	 	 
	

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Revenue Forecast”). Equant shall grant to SITA SC and/or SITA INC
(as appropriate) the applicable Volume dependent discount as set
out in the Volume Discount Table for the forecast revenue (the
“Volume Discount”).
	 
	 	(x)	 	In the event that the Net Price Book Prices have not been
agreed by the Annual Forecast Date; then until such time as such Net
Price Book Prices have been agreed:




	 	(A)	 	the [*] Revenue Discount Adjustment shall not apply; and





	 	(B)	 	SITA SC and/or SITA INC, as applicable, shall
not be required to make any payments with respect to any
Recognisable Costs arising in connection with any Quarterly
Network Activity Forecast which is required to be submitted
by SITA SC and/or SITA INC, as applicable, during the period
under which the Net Price Book Prices are under consideration
by either the chief financial officers of Equant, SITA SC and
SITA INC; the Executive Committee; or under the Dispute
Resolution Process.





	(g)	 	Pricing Procedures
	 
	 	 	Net Price Book Prices shall be agreed between the Parties in accordance
with and pursuant to the provisions of this clause:




	 	(i)	 	Contract Year 2
	 
	 	 	 	
The Net Price Book Prices for Contract Year 2 shall include a
[ * ] in Unit Cost from the Contract
Year One when applied to the activity for Cost Base Services for
Contract Year One.
	 
	 	(ii)	 	Contract Year Three
	 
	 	 	 	
Equant shall adjust Net Price Book Prices to comply with all of
the following:




	 	(A)	 	the net price should be [*] of the prices in the
Benchmarking Database as determined and certified by the
Independent Expert pursuant to and in accordance with the
provisions of clause 11; Schedule M; and Schedule M, Part I,
clause 3.2(a)(i));





	 	(B)	 	the net price should be [ * ] of the
prices in the Benchmarking Database plus a [ * ] price
increment as determined and certified by the Independent
Expert pursuant to and in accordance with the provisions of
clause 11; Schedule M; and Schedule M, Part I, clause
3.2(a)(ii);





	 	(C)	 	the Net Price Book Prices should be [*] the prices required to pass MFN Tests as determined
and certified by the MFN Evaluation





	 	 	 
	

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	 	 	 	pursuant to and in accordance with the provisions of clauses
12 and 13; and Schedule M and Schedule N; and





	 	(D)	 	the Net Price Book Prices should [*] to the Unit Cost as follows:





	 	I)	 	in the event that during Contract
Years 1 and 2 the annual [*] in Volume has not
been less than [ * ], minimum in Unit Costs
will apply with regard to the Volume for the Contract
Year, if the most recent Quarterly Network Activity
Forecast for the Contract Year forecasts an [*] in
Volume of:





	 	a.	 	[ * ], then the minimum [*] in Unit Cost
shall be [ * ];





	 	b.	 	[ * ], then the minimum [*] in Unit Cost shall be
[ * ];





	 	c.	 	[ * ], then the [ * ] in Unit Cost shall be [ * ]; and





	 	II)	 	for the avoidance of doubt, where
the [ * ] in Volume is between [ * ] and [ * ] the
Volume [ * ] and Unit Cost [ * ] shall be
linearly proportional.





	 	(iii)	 	Contract Year Four onwards
	 
	 	 	 	
Equant shall adjust Net Price Book Prices to comply with all of
the following:




	 	(A)	 	the net price should be [ * ] of the prices in the
Benchmarking Database as determined and certified by the
Independent Expert pursuant to and in accordance with the
provisions of clause 11; Schedule M; and Schedule M, Part I,
clause 3.2(a)(i));





	 	(B)	 	the net price should be [ * ] of the
prices in the Benchmarking Database [ * ] as determined and certified by the Independent
Expert pursuant to and in accordance with the provisions of
clause 11; Schedule M; and Schedule M, Part I, clause
3.2(a)(ii);





	 	(C)	 	for each Benchmarking Region the Net Price Book
Prices should be [ * ] the prices required to
pass MFN Tests as determined and certified by the MFN
Evaluation pursuant to and in accordance with the provisions
of clauses 12 and 13; and Schedule M and Schedule N; and





	 	(D)	 	the Unit Cost in Contract Year N shall only
increase over Contract Year N-1 if the Contract Year N-1
Market Price [ * ].





	 	 	 
	

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	10.3.	 	Service Charges
	 
	(a)	 	The “Service Charges” shall consist of the Priced Service Charges,
Exception Priced Service Charges, Standard Cost Service Charges and the
amount payable by SITA SC and SITA INC with respect to Pass Through
Services. Applicable charges relating to Priced Services shall begin to
accrue in accordance with the Ready for Service definition set out in the
Price Books and Equant shall invoice SITA SC and/or SITA INC, as
applicable, with respect to the Service Charges as adjusted pursuant to
this clause 10.3 in accordance with the provisions of clause 18. Equant
shall adjust the Service Charges payable by SITA SC and/or SITA INC on
behalf of SITA SC, SITA INC and the SITA Group Companies in accordance
with and pursuant to the provisions of this clause:
	 
	(b)	 	MRC Quarterly Payments




	 	(i)	 	Contract Year One MRC Quarterly Payments
	 
	 	 	 	
Equant shall adjust the Cost Base Service Charges to include the
MRC Quarterly Payments payable by SITA SC and/or SITA INC (if any)
and shall invoice SITA SC and/or SITA INC (as applicable) in
accordance with clause 18 to Equant in accordance with the
following:




	 	(A)	 	“Cumulative Contract Year One Interim MRC”
means the value of the cumulative percentage of the Contract
Year One Gross Annual MRC to be invoiced by Equant to SITA SC
during Contract Year One on the respective MRC Quarterly Due
Date and set out in the table below:





	 	 	 	 	 	 	 
	 	 	 	 	Cumulative % of the
	 	 	 	 	Contract Year One
	Contract Year One	 	 	 	Gross Annual MRC
	Quarters	 	MRC Quarterly Due Date	 	Payment
	
	 	
	 	

	Q1	 	
30th September 2001
	 	 	[ * ]	 
	Q2	 	
31st December 2001
	 	 	[ * ]	 
	Q3	 	
31st March 2002
	 	 	[ * ]	 




	 	(B)	 	“Adjusted Annual MRC Contract Year One” equals
the Contract Year One Gross Annual MRC less the aggregated
sum of the MRC Reductions for Contract Year One;





	 	 	 
	

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	 	(C)	 	The “Contract Year One Quarterly MRC Payment”
equals the sum of:





	 	I)	 	the respective Cumulative Contract
Year One Interim MRC; less





	 	II)	 	the gross aggregate value of the
then current Cost Base Service Charges for the period
commencing on the first calendar day of Contract Year
One until the respective MRC Quarterly Due Date; less





	 	III)	 	the then current value of the
aggregate total of the Quarterly MRC Payments paid by
SITA SC to Equant for the period commencing from the
first calendar day of Contract Year One until the
respective MRC Quarterly Due Date,





	 	where the value of the Contract Year One Quarterly MRC
Payment shall always be greater than or equal to zero. In
the event that the Contract Year One Quarterly MRC Payment
is a negative number, then the value attributed to the
Contract Year One Quarterly MRC Payment shall be zero.





	 	(ii)	 	Contract Year Two MRC Quarterly Payments
	 
	 	 	 	
Equant shall adjust the Cost Base Service Charges to include the
MRC Quarterly Payments payable by SITA SC and/or SITA INC (if any)
to Equant in accordance with the following:




	 	(A)	 	“Cumulative Contract Year Two Interim MRC”
means the value of the cumulative percentage of the Contract
Year Two Gross Annual MRC to be invoiced by Equant to SITA SC
during Contract Year Two on the respective MRC Quarterly Due
Date and set out in the table below:





	 	 	 	 	 	 	 
	 	 	 	 	Cumulative % of the
	 	 	 	 	Contract Year Two
	Calendar quarter:	 	 	 	Gross Annual MRC
	Contract Year Two	 	MRC Quarterly Due Date	 	Payment
	
	 	
	 	
	 
	Q1	 	
30th September 2002
	 	 	[ * ]	 
	Q2	 	
31st December 2002
	 	 	[ * ]	 
	Q3	 	
31st March 2003
	 	 	[ * ]	 




	 	(B)	 	“Adjusted Annual MRC Contract Year Two” equals
the Contract Year Two Gross Annual MRC less the aggregated
sum of the MRC Reductions for Contract Year Two;





	 	(C)	 	The “Contract Year Two Quarterly MRC Payment”
equals the sum of:




	 	 	 
	

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	 	I)	 	the respective Cumulative Contract
Year Two Interim MRC; less





	 	II)	 	the gross aggregate value of the
then current Cost Base Service Charges for the period
commencing on the first calendar day of Contract Year
Two until the respective MRC Quarterly Due Date; less





	 	III)	 	the then current value of the
aggregate total of the Quarterly MRC Payments paid by
SITA SC to Equant for the period commencing from the
first calendar day of Contract Year Two until the
respective MRC Quarterly Due Date,





	 	where the value of the Contract Year Two Quarterly MRC
Payment shall always be greater than or equal to zero. In
the event that the Contract Year Two Quarterly MRC Payment
is a negative number, then the value attributed to the
Contract Year Two Quarterly MRC Payment shall be zero.





	(c)	 	Adjustments at the end of the Contract Year




	 	(i)	 	MFN
	 
	 	 	 	
If the MFN Evaluator determines that any of the MFN Tests have
failed in a Benchmarking Region then Equant shall deduct a MFN
Refund from the Service Charges. The MFN Refund is calculated in
Clause 2.7 of Schedule N (‘Instructions to the MFN Evaluator’) and
reported in the MFN Certification Report.
	 
	 	(ii)	 	[*] Volume Discount Adjustment
	 
	 	 	 	
With effect from the beginning of Contract Year Four the following
will be applicable:




	 	(A)	 	if SITA SC and/or SITA INC’s actual volumes
exceed the [*] Revenue Forecasts, it shall receive the
benefit of any increased discounts specified in the Volume
Discount Tables;





	 	(B)	 	if SITA SC and/or SITA INC’s actual volumes are
less than the [*] Revenue Forecasts, then it shall receive
the discount specified in the Volume Discount Tables for the
actual volumes achieved less:





	 	I)	 	0.33% for each percentage point (or
fraction thereof) that SITA SC and/or SITA INC’s actual
volumes are more than five per cent (5%) less than the [*] Revenue Forecast; and





	 	II)	 	0.5% for each percentage point (or
fraction thereof) that SITA SC and/or SITA INC’s actual
volumes are more than fifteen per cent (15%) less than
the [*] Revenue Forecast,






	 	
(the “[*] Revenue Discount Adjustment”).





	 	 	 
	

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	 	 	 	[*]





	 	(C)	 	The maximum value of the [*] Revenue Discount Adjustment
shall be limited to a value equal to [*] of the
discount specified in the Volume Discount Tables relevant to
the actual volume of SITA SC, SITA INC and the SITA Group
Companies for the relevant Contract Year as reduced by the [*] Revenue Discount Adjustment for the appropriate Contract Year.





	(iii)	[*]	 	 
	 
	(iv)	[*]	 	 





	 	 	 
	

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	10.4.	 	Invoicing
	 
	(a)	 	Equant shall deliver a report setting out full details and verifying the
True Up Payment to the SITA SC Representative and/or the SITA INC
Representative within one calendar month of the last calendar day of each
Contract Year in accordance with the terms and conditions of clause 30.2.
Within fifteen calendar days of receipt of such report, Equant may invoice
or shall issue a credit note to SITA SC and/or SITA INC, as applicable, for the amount of the True Up
Payment.
	 
	(b)	 	Equant shall deliver a report setting out full details and verifying the
MFN Refund to the SITA SC Representative and/or the SITA INC
Representative within one calendar month of the last calendar day of each
Contract Year in accordance with the terms and conditions of clause 30.2.
Within fifteen calendar days of receipt of such report, Equant shall issue
a credit note to SITA SC and/or SITA INC, as applicable, for the amount of the MFN Refund.
	 
	10.5.	 	Reliance on historical data and non-performance by Equant
	 
	(a)	 	The Parties hereby acknowledge and agree that the [*] Revenue Forecast
provided by SITA SC and/or SITA INC, as applicable is based in part on the
accuracy and completeness of the historical activity, mediation and
billing data provided by Equant to SITA SC and SITA INC, as applicable,
(the “Historical Activity Data”). SITA SC and/or SITA INC, as applicable,
shall retain the right to initiate Dispute Resolution Proceedings with
respect to the accuracy and completeness of all or any part of the
Historical Activity Data. In the event that all or any part of the
Historical Activity Data is found to be either materially incomplete or
inaccurate pursuant to the Dispute Resolution Process then:





	 	 	 
	

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	 	(i)	 	the [*] Revenue Discount Adjustment shall not apply to the extent that
such [*] Revenue Discount Adjustment was incurred as a result of such
material inaccuracy or incompleteness; and
	 
	 	(ii)	 	any other adjustments to the Service Charges, Volumes or
Volume Discounts (including with respect to prior years) as agreed
between the Parties in order to correct for such materially
inaccurate or incomplete data shall be implemented.




	(b)	 	Volume adjustment related to non performance by Equant
	 
	 	 	In the event of significant non-performance of the terms and conditions
of this Agreement by Equant, as set out at clause 10.5 (c):




	 	(i)	 	corresponding activity volumes will be added to the actual
activity volumes achieved for the determination of the Volume
Discount and the activity volumes used for calculating Recognisable Costs pursuant to clause 16.1; and
	 
	 	(ii)	 	for the purpose of determining
whether the [*] thresholds in Contract Year One, Contract Year Two and Contract Year
Three have been achieved as a condition to the Allowed Unit Cost
Reduction in Contract Year Three, corresponding activity volumes
will be added to the actual Volumes achieved.




	(c)	 	For the purposes of clause 10.5 (b), an event of significant
non-performance shall mean the following circumstances:





	 	(i)	 	where SITA SC and/or SITA INC implement any right under this
Agreement to purchase any Network Services that are Cost Base
Services from a service provider other than Equant;
	 
	 	(ii)	 	where Equant fails to meet the requirements of the agreed
migration schedule by more than thirty (30) days for the integration
and migration of SITA SC’s, SITA INC’s or the SITA Group Companies’
outsourcing arrangements and such failure is primarily attributable
to the fault of Equant, Equant’s contractors, sub-contractors,
agents, employees or other representatives (but not a PTT) and is
not otherwise excused under this Agreement;
	 
	 	(iii)	 	where Equant fails (and such failure is not excused under the
Agreement) to meet the committed delivery date for the provision of
customer orders by more than sixty (60) days and such activities
shall be calculated from the first calendar day of failure to meet
the committed delivery date (for example, over 65 days, had
implementation been delayed by 65 days);
	 
	 	(iv)	 	if, as a direct result of performance failures (not PTT
failures) occurring after January 1, 2002, in the Network or with
respect to the provision of Network Services by Equant (or its
relevant Affiliate, agent, sub-contractor or employee), a customer
of SITA SC, SITA INC or a SITA Group Company terminates, either in
full or in part, a contract with either SITA SC, SITA INC or a SITA
Group Company (irrespective of whether the contract is already
operational or became




	 	 	 
	

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	 	operational either prior to, or after, the Effective Date of
this Agreement). SITA SC, SITA INC or the SITA Group
Company shall demonstrate to Equant’s reasonable satisfaction that
such termination was as a result of such performance failure
through identification of the respective SITA customer concerned
and provision of a copy of all related correspondence, if any,
delivered by the SITA customer to SITA in respect of their
termination of either all or part of such customer contract. SITA
SC, SITA INC or the SITA Group Company shall work together in order
to verify the events relating to the SITA customer’s termination,
either in full or in part, of the SITA customer contract;
	 
	 	(v)	 	if, as a direct result of performance failures (not PTT
failures) occurring after January 1, 2002, in the Network or with
respect to the provision of Network Services by Equant (or its
relevant Affiliate, agent, sub-contractor or employee), a customer
of SITA SC, SITA INC or a SITA Group Company fails to renew, either
in full or in part, a contract with SITA SC, SITA INC or a SITA
Group Company, (irrespective of whether the contract is already
operational or became operational either prior to, or after, the
Effective Date of the Network Services Agreement). SITA SC, SITA
INC or the SITA Group Company shall demonstrate to Equant’s
reasonable satisfaction that such termination was as a result of
such performance failure through identification of the respective
SITA customer concerned and provision of a copy of all related
correspondence, if any, delivered by the SITA customer to SITA in
respect of their termination of either all or part of such customer
contract. SITA SC, SITA INC or the SITA Group Company shall work
together in order to verify the events relating to the SITA
customer’s non-renewal, either in full or in part, of the SITA
customer contract; and
	 
	 	(vi)	 	such other activities as may be agreed in writing between the
Parties.
	 




	11.	 	BENCHMARKING SURVEY
	 
	11.1.	 	General



During the Term, a comparison of:



	(a)	 	the Net Price Book Prices of the Priced Services and Tail Circuits;
against
	 
	(b)	 	the net prices set out in customer contracts entered into by Comparable
Providers providing Comparable Services where the net prices have been:




	 	(i)	 	normalised from end customer prices to distributor prices
(where required) and as otherwise required under Schedule M
(‘Instructions to the Independent Expert’); and
	 
	 	(ii)	 	extrapolated in accordance with clause 2.7 of Schedule M
(‘Instructions to the Independent Expert’) to be applicable to the
first day of the effective period of the Price Books,
(the “Benchmarking Survey”), shall be performed in accordance with the
provisions of this clause 11.




	 	 	 
	

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	11.2.	 	Nomination and Selection of the Independent Expert



The Parties shall, in accordance with the provisions of Schedule K (‘Nomination
and Selection of the Independent Expert’), nominate
and select an independent third party that fulfils the Nomination Criteria,
(the “Independent Expert”) to perform the Benchmarking Survey on behalf of the
Parties.



	11.3.	 	Appointment of the Independent Expert
	 
	(a)	 	Following the selection of an Independent Expert, the Parties shall enter
into a written agreement with the Independent Expert with a three (3)
year term (the “Benchmarking Agreement”).
	 
	(b)	 	At least twelve (12) calendar months prior to the end of the term of a
Benchmarking Agreement, the Parties shall repeat the procedures set out
under clauses 11.2 and 11.3.
	 
	(c)	 	Subject to the provisions of clause 11.6, an Independent Expert shall be
appointed under the terms and provisions of a Benchmarking Agreement at
all times during the Term.
	 
	(d)	 	Throughout the Term, SITA SC shall represent the interests of SITA INC in
connection with the Benchmarking Survey and under the Benchmarking
Agreement. As promptly as practical after the date on which SITA INC is
no longer Controlled by the SITA INC Foundation, the Parties will
negotiate in good faith appropriate amendments to this clause concerning
the representation of SITA INC by SITA SC.
	 
	11.4.	 	Frequency of Benchmarking
	 
	(a)	 	With effect from the Effective Date, the Parties shall instruct the
Independent Expert to perform a Benchmarking Survey on an annual basis in
accordance with the timeline set out in Schedule J (‘Price Book Update
Timescale’).
	 
	(b)	 	In addition to the provisions of this clause 11.4, the Parties may agree
(which agreement may be withheld in a Party’s sole and absolute
discretion) to instruct the Independent Expert to perform a Benchmarking
Survey with respect to a specified period at any time during the Term.
	 
	11.5.	 	Role of the Independent Expert
	 
	(a)	 	The Parties shall, under the terms of the Benchmarking Agreement,
authorise and instruct the Independent Expert to:




	 	(i)	 	design, implement, analyse and perform the Benchmarking
Survey;
	 
	 	(ii)	 	prepare two reports (the “Benchmarking Report” and the
“Benchmarking Certification Report”) giving full details of the
analysis and results of the Benchmarking Survey on behalf of the
Parties;





	 	 	 
	

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	 	(iii)	 	appoint an appropriate individual to act as a single point
of contact for activities associated with the Benchmarking Survey;
	 
	 	(iv)	 	communicate progress to SITA SC and Equant and liaise with
their nominated project leaders or single points of contact; and
	 
	 	(v)	 	present the Benchmarking Report and the Benchmarking
Certification Report,





	 	 	 pursuant to and in accordance with the terms and conditions of such
Benchmarking Agreement, which shall incorporate the provisions of
Schedule J.
	 
	(b)	 	[*]
	 
	(c)	 	[*]
	 
	(d)	 	[*]
	 
	(e)	 	[*]
	 
	(f)	 	[*]
	 
	(g)	 	[*]
	 





	 	 	 
	

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	(h)	 	The Parties hereby agree that the Independent Expert shall be granted
full discretion and independence under the terms of the Benchmarking
Agreement to perform the Benchmarking Survey in accordance with the terms
of the Benchmarking Agreement (which shall incorporate the provisions of
Schedule M).
	 
	(i)	 	In addition, the Independent Expert may be requested by any of the
Parties to provide advice with respect to any actions to improve the
Services or other aspects of the relationship arising out of the results
of the Benchmarking Survey. No Party is required or obliged, and may
decline in its sole and absolute discretion, to implement or take any
action following receipt of such advice.
	 
	11.6.	 	Termination of the Benchmarking Agreement
	 
	(a)	 	The Parties shall endeavour to include within the Benchmarking Agreement
a specific right to terminate the term of appointment of the Independent
Expert if the Independent Expert:




	 	(i)	 	fails to materially comply with the instructions and
methodologies set out in Schedule M (‘Instructions to the
Independent Expert’);
	 
	 	(ii)	 	breaches an obligation of confidentiality to either Party;
	 
	 	(iii)	 	undergoes a change in its business or affiliation that
either causes it to become a competitor of SITA SC, SITA INC, or
Equant or an Affiliate of SITA SC, SITA INC, or Equant; or
	 
	 	(iv)	 	fails to act in an independent manner. This criterion is not
intended to mean that the Independent Expert’s Benchmarking Report
may not favour the commercial interests of one Party over the
commercial interests of another Party if the data supports the
conclusions of the Benchmarking Report.





	 	 	 
	

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	(b)	 	In the event that any of the Parties knows or becomes aware of a breach
of a term or condition of a Benchmarking Agreement by the Independent
Expert giving rise to a right of termination by the Parties under that
Agreement then, unless the right is agreed to be waived by the Parties
(such agreement to be given in the sole and absolute discretion of each
Party):




	 	(i)	 	such Party shall immediately consult and agree with the other
Party whether the breach has resulted, or is likely to result in a material
impact on the results of the related Benchmarking Survey or
Benchmarking Report; and
	 
	 	(ii)	 	the Parties shall select and appoint a replacement
Independent Expert (the “Replacement Independent Expert”) in
accordance with the provisions of clauses 11.2 and 11.3 as soon as
reasonably possible but in any event within three (3) calendar
months from the date on which the Parties agreed to terminate the
term of appointment of the Independent Expert.




	(c)	 	If the Parties agree that the breach giving rise to the right of
termination has not resulted, or is not likely to result, in a material impact on the
results of the Benchmarking Survey or Benchmarking Report, the Parties
shall immediately commence proceedings to terminate the Benchmarking
Agreement (in accordance with the provisions of the Benchmarking
Agreement) with effect from the end of the then current Contract Year (the
“Terminated Benchmark Period”). The Parties shall then instruct the
Independent Expert to complete the Benchmarking Report for such Terminated
Benchmark Period and shall implement the results and recommendations of
the Benchmarking Report in accordance with the provisions of clauses 11.7
and 11.8.
	 
	(d)	 	If the Parties agree that the breach giving rise to the right of
termination has resulted, or is likely to result, in a material impact on the results
of the Benchmarking Survey or Benchmarking Report, the Parties shall
immediately commence proceedings to terminate the Benchmarking Agreement
(in accordance with the provisions of the Benchmarking Agreement) with
immediate effect and shall then instruct the Replacement Independent
Expert to:




	 	(i)	 	prepare and present an interim Benchmarking Report (the
“Interim Benchmark Report”) in accordance with the provisions of
Schedule M and, where appropriate to compensate for lack of data,
using its skills and knowledge of market trends with respect to the
Terminated Benchmark Period. Such Interim Benchmark Report shall be
implemented by Equant as soon as reasonably possible in accordance
with the provisions of clause 11.7 and 11.8; and
	 
	 	(ii)	 	perform a Benchmarking Survey in respect of the Terminated
Benchmark Period in accordance with the provisions of clause 11.5,
and the Parties shall implement the results and recommendations of
the Benchmarking Report as soon as reasonably possible in accordance
with the provisions of clauses 11.7 and 11.8. If such
implementation occurs after the commencement of the following
Contract Year, the Parties shall make adjustments as necessary to
make it apply





	 	 	 
	

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	 	 	 	for the whole of such following Contract Year (and resulting
payments or repayments between the Parties shall be invoiced
accordingly),
	 
	 	(iii)	 	save that where the Independent Expert advises the Parties
that the remaining term of the Terminated Benchmark Period is
sufficient to perform a complete Benchmarking Survey with respect to
that Terminated Benchmark Period and the Parties reasonably agree
that their respective benefits and interests would not be reduced or
disadvantaged, then the Parties may waive the requirements of
clause 11.6(d) (i) above.




	(e)	 	In addition to the provisions of this clause, in the event of termination
of a Benchmarking Agreement prior to the expiry of the full three (3) year
contractual term, in the event that the termination occurs:




	 	(i)	 	at the end of the Contract Year, then the Parties shall
comply with the provisions of clauses 11.6(b) and 11.6(c) above; and
	 
	 	(ii)	 	prior to the end of a Contract Year, then the Parties shall
comply with the provisions of clauses 11.6(b) and 11.6(d) above.




	(f)	 	Further and in addition to the provision of this clause, following the
expiry or termination of a Benchmarking Agreement, the Parties shall use
commercially reasonable efforts to procure that the retiring Independent
Expert provides the immediately following Independent Expert with all
materials in its possession related to the Benchmarking Report, including
any database and a draft in progress of the Benchmarking Report, if
relevant.
	 
	11.7.	 	Acceptance of the Benchmarking Report



The adjustments of the Benchmarking Report shall be accepted by the Parties and
such acceptance is final, unless a Party raises a dispute pursuant to clause 29
and the dispute resolution process results in a determination that the
Independent Expert did not materially comply with the instructions and
methodology set out in Schedule M (‘Instructions to the Independent Expert’).



	11.8.	 	Implementation of the Benchmarking Report
	 
	(a)	 	Subject to clause 11.8(b), the adjustments of the Benchmarking Report
shall be incorporated by Equant within the Price Books (for the following
Contract Year), including any SITA Specific Discounts, in accordance with
clause 10 and at no cost to SITA SC, SITA INC or any SITA Group Company.
	 
	(b)	 	Equant shall not be requested or required to implement the results and
recommendations of the Independent Expert set out in the Benchmarking
Report relating to Contract Year One but the Parties shall analyse the
Benchmarking Survey for Contract Year One with a view to implementing
possible efficiencies and improvements for inclusion within the
Benchmarking Survey to be performed in Contract Year Two. No Party shall
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	 	 	required, and may decline in its sole and
absolute discretion, to implement such
efficiencies and improvements.
	 
	11.9.	 	Benchmarking Regions
	 
	(a)	 	The number and composition of Benchmarking Regions shall be subject to
review by the Parties every three (3) years. Any amendment to the number
or composition of Benchmarking Regions shall be subject to the reasonable
agreement of the Parties based on evidence of a significant change in
market conditions since the Effective Date or the last review, whichever
is later and the Independent Expert shall be instructed accordingly by the
Parties.
	 
	(b)	 	Equant and SITA SC shall undertake a review of the Benchmarking Regions
within a period less than as provided under clause (a) above if any of the
other Parties provides evidence of a significant change in market
conditions since the Effective Date or the last review, whichever is later
and the Independent Expert shall be instructed accordingly.
	 
	(c)	 	Either Equant or SITA SC may refer the issue of the amendment of the
number of or a change in composition of Benchmarking Regions pursuant to
clause (a) above to the dispute resolution procedures set out under clause
29, if it believes that the other Party unreasonably refused to agree to
either:




	 	(i)	 	consider undertaking a review following the expiry or
termination of a Benchmarking Agreement; or
	 
	 	(ii)	 	amend the number of Benchmarking Regions based on the
evidence of a significant change in market conditions.




	11.10.	 	Benchmarking Costs
	 
	(a)	 	SITA SC and Equant shall pay all fees, costs, expenses and/or other
reimbursements incurred under the Benchmarking Agreement in equal parts
and shall retain several liability in respect of such fees, costs,
expenses and/or other reimbursements.
	 
	(b)	 	Each Party shall pay and be severally liable for all fees, costs,
expenses and/or other reimbursements incurred on its own behalf:




	 	(i)	 	under and as a result of the Benchmarking Survey,
Benchmarking Agreement, Benchmarking Report and the implementation
of the results of the Benchmarking Report (including the costs of
all third parties that a Party may elect in its sole and absolute
discretion to assist it); and
	 
	 	(ii)	 	pursuant to clause 11.4(b).




	(c)	 	In the event that SITA INC is no longer Controlled by SITA INC
Foundation, then SITA SC and SITA INC shall reasonably agree on an
allocation of SITA INC’s share of costs under the Benchmarking Agreement.




	 	 	 
	

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	11.11.	 	Equant and SITA SC Responsibilities
	 
	(a)	 	Equant and SITA SC each shall:
	 
	(b)	 	authorise and appoint an appropriate individual to:




	 	(i)	 	act as a single point of contact for the Independent Expert
and the other Parties with respect to activities associated with the
Benchmarking Survey; and
	 
	 	(ii)	 	carry out the obligations of SITA SC and/or SITA INC, as
applicable, and Equant with respect to the nomination and selection
of the Independent Expert under clauses 11.2 and 11.3 of this
Agreement including attending any associated or related meetings,




	 	 	 and each Party shall ensure that each of the other Parties are notified
of the contact details (including name, address and facsimile number) of
such individual appointed pursuant to this clause;
	 
	(c)	 	provide all information, including full and accurate data requested by
the Independent Expert in connection with and relevant to the Benchmarking
Survey, save that Equant shall not be required to release to the
Independent Expert any customer contracts or its costs or margins;
	 
	(d)	 	ensure the attendance by appropriate personnel at workshops/review
meetings/presentations, etc.;
	 
	(e)	 	provide adequate staffing to facilitate the Independent Expert in
conducting the Benchmarking Survey and completing the Benchmarking Report;
	 
	(f)	 	carry out with promptness and diligence any actions that are necessary or
appropriate to facilitate the Independent Expert in conducting the
Benchmarking Survey; and
	 
	(g)	 	comply with all the terms of the Benchmarking Agreement.
	 
	11.12.	 	Co-operation of the Parties



Equant and SITA SC shall formally notify and consult with each other in writing
prior to taking any independent action in respect of the Benchmarking
Agreement.



	11.13.	 	Actions During Dispute Resolution Procedures



In the event that a dispute is raised in respect of any aspect of the
Benchmarking Survey, the Parties shall continue to perform under this Agreement
as if no such dispute had been raised (including adjustment of Price Book
Prices and SITA Specific Discounts to reflect the results of the Benchmarking
Report in accordance with clause 11.8, if appropriate). If the dispute
resolution process ultimately results in a determination that the Benchmarking
Survey was in some manner defective or improper or that the Independent Expert
did not materially comply with the instructions and methodology set out in
Schedule M (‘Instructions to the Independent



	 	 	 
	

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Expert’), the Parties shall reasonably agree on actions to be taken to
implement the results of the dispute resolution process.



	12.	 	PRICE TO VOLUME SURVEY
	 
	12.1.	 	Price to Volume Assessment



During the Term, a comparison of the relative weighted average net prices in
each Benchmarking Region, such prices to be measured by an index, at different
levels of volume for Distributors providing services, products and geographical
attributes that are similar to SITA SC, SITA INC and any SITA Group Companies
(the “Price to Volume Assessment”) shall be performed in accordance with the
provisions of this clause 12.



	12.2.	 	Role of the Independent Expert
	 
	(a)	 	The Parties shall, under the terms of the Benchmarking Agreement,
authorise and instruct the Independent Expert to:




	 	(i)	 	design, implement, analyse and perform the Price to Volume
Assessment;
	 
	 	(ii)	 	prepare a report (the “Price to Volume Assessment Report”)
giving full details of the analysis and results of the Price to
Volume Assessment on behalf of the Parties;
	 
	 	(iii)	 	appoint an appropriate individual to act as a single point
of contact for activities associated with the Price to Volume
Assessment;
	 
	 	(iv)	 	communicate progress to SITA SC and Equant and liaise with
their nominated project leaders or single points of contact; and
	 
	 	(v)	 	present the Price to Volume Assessment Report,




	 	 	 pursuant to and in accordance with the terms and conditions of the
Benchmarking Agreement, which shall incorporate the provisions of
Schedule M, Part II.
	 
	(b)	 	The Parties hereby agree that the Independent Expert shall be granted
full discretion and independence under the terms of the Benchmarking
Agreement to perform the Price to Volume Assessment in accordance with the
terms and conditions of the Benchmarking Agreement.
	 
	12.3.	 	Frequency of Price to Volume Assessment
	 
	(a)	 	The Parties shall instruct the Independent Expert to perform the Price to
Volume Assessment and present the Price to Volume Assessment Report on an
annual basis with respect to each Contract Year.





	 	 	 
	

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	(b)	 	In addition to the provisions of clause 12.3(a), the Parties may agree
(in their sole and absolute discretion) to instruct the Independent Expert
to perform a Price to Volume Assessment with respect to a specified period
at any time during the Term.
	 
	12.4.	 	Acceptance of the Price to Volume Assessment Report



The results of the Price to Volume Assessment Report shall be accepted by the
Parties and such acceptance is final unless a Party initiates the Dispute
Resolution Procedures and such procedures result in a determination that the
Independent Expert did not materially comply with the instructions set out
under Schedule M, Part II.



	12.5.	 	Termination of a Benchmarking Agreement
	 
	(a)	 	In the event of termination of the appointment of the Independent Expert
pursuant to the provisions of clause 11.6 prior to the publication of the
Price to Volume Assessment Report, then the Parties shall instruct the
Replacement Independent Expert to perform and prepare a Price to Volume
Assessment Report with respect to the Terminated Benchmarking Period as
soon as reasonably possible, which the Parties shall accept in accordance
with the provisions of clause 12.4.
	 
	(b)	 	Further to and in addition to the provisions of this clause, following
the expiry or termination of a Benchmarking Agreement, the Parties shall
use commercially reasonable efforts to procure that the retiring
Independent Expert provides the immediately following Independent Expert
with all materials in its possession related to the Price to Volume
Assessment (including any database, modelled data and a draft in progress
of the Price to Volume Assessment Report, if relevant).
	 
	12.6.	 	Allowable Differential
	 
	(a)	 	The percentage price differential allowed between the results generated
pursuant to the MFN Tests set out under Schedule N (‘Instructions to the
MFN Evaluator’), at a given level of net annual revenue, shall be the
“Allowable Differential”.
	 
	(b)	 	In consultation with the Independent Expert, the Parties shall develop
curves measuring the Allowable Differential at various levels of net
annual revenue, [*] of the forecast net aggregated
annual revenue of SITA SC, SITA INC and the SITA Group Companies for the
respective Contract Year for (A) Third Party Distributors; and (B) NNI
Customers, in each Benchmarking Region (the “Allowable Differential
Curves”) in accordance with the following:




	 	(i)	 	the Parties shall agree a reasonable number of break points
in terms of net annual revenue (the “Break Points”). Such
Break Points shall include but not be limited to [*] of the aggregated net annual revenue of SITA SC, SITA
INC and the SITA Group Companies;
	 
	 	(ii)	 	the Independent Expert shall look-up the Allowable
Differential at each of the Break Points using relative prices
identified at different levels of volume in the Price to Volume
Curves;





	 	 	 
	

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	 	(iii)	 	if the difference between the Allowable Differentials at two
consecutive Break Points is [*] then
the Parties must agree to increase the number of Break Points and the procedures set out in
clause 12.6(b)(ii) shall be repeated until the difference is [*]; and
	 
	 	(iv)	 	the Allowable Differential Curves shall then be established




	 	(A)	 	[*]





	 	(B)	 	[*]





	13.	 	MOST FAVOURED NATION PRICING
	 
	13.1.	 	Most Favoured Nation Pricing Evaluation
	 
	(a)	 	During the Term, a comparison (taking into account the Allowable
Differential and using the MFN Tests) of:




	 	(i)	 	the Net Price Book Prices for Priced Services; and
	 
	 	(ii)	 	the net prices in the Contract Year provided by Equant to
other [*] sales channels where the net prices have
been adapted for the differences between the services provided by
Equant to SITA SC, SITA INC and the SITA Group Companies and the
services provided by Equant to the other [*] sales
channels; and




	 	 	 (the “MFN Evaluation”) shall be performed in accordance with the
provisions of this clause 13.
	 
	(b)	 	Where the MFN Evaluation determines (taking into account the Allowable
Differential) that the net prices provided by Equant to other [*] sales channels are such that one or more of the MFN Tests are
failed, then Equant shall be required to:




	 	(i)	 	develop a MFN Revised Net Price Book that passes all MFN
Tests (“MFN Revised Net Price Book Prices”);
	 
	 	(ii)	 	make a retrospective refund (a “MFN Refund”) to SITA with
respect to the appropriate Contract Year as calculated under clause
2.6 of Schedule N (‘Instructions to the MFN Evaluator’); and
	 
	 	(iii)	 	develop a Net Price Book for the following Contract Year
that would have passed the MFN Tests in the prior Contract Year.





	 	 	 
	

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	13.2.	 	Nomination and selection of the MFN Evaluator



The Parties shall, in accordance with the provisions of Schedule K, nominate
and select an independent third party to perform the MFN Evaluation (the “MFN
Evaluator”).



	13.3.	 	Appointment of the MFN Evaluator
	 
	(a)	 	Following the selection of an MFN Evaluator, the Parties shall enter into
a written agreement with the MFN Evaluator for a period of three (3) years
(the “MFN Agreement”).
	 
	(b)	 	At least twelve (12) calendar months prior to the end of the term of a
MFN Agreement, the Parties shall repeat the provisions of clauses 13.2 and
13.3.
	 
	(c)	 	Subject to the provisions of clause 13.7, an MFN Evaluator shall be
appointed under the terms and conditions of a MFN Agreement at all times
during the Term.
	 
	(d)	 	Throughout the Term, SITA SC shall represent the interests of SITA INC in
connection with the MFN Evaluation and under the MFN Agreement. As
promptly as practical after the date on which SITA INC is no longer
Controlled by the SITA INC Foundation, the Parties will negotiate in good
faith appropriate amendments to this clause concerning the representation
of SITA INC by SITA SC.
	 
	13.4.	 	Role of the MFN Evaluator
	 
	(a)	 	The Parties shall, under the terms of the MFN Agreement, authorise and
instruct the MFN Evaluator to:




	 	(i)	 	design, implement, analyse and perform the MFN Evaluation;
	 
	 	(ii)	 	prepare two reports (the “MFN Evaluation Report” and the “MFN
Certification Report”) giving full details of the analysis and
results of the MFN Evaluation on behalf of the Parties;
	 
	 	(iii)	 	appoint an appropriate individual to act as a single point
of contact for activities associated with the MFN Evaluation;
	 
	 	(iv)	 	communicate progress to SITA SC and/or SITA INC, as
applicable, and Equant and liaise with their nominated project
leaders or single points of contact; and
	 
	 	(v)	 	present the MFN Evaluation Report and the MFN Certification
Report,





	 	 	pursuant to and in accordance with the terms and conditions of the MFN
Agreement, which shall incorporate the provisions of Schedule N.
	 
	(b)	 	The Parties hereby agree that the MFN Evaluator shall be granted full
discretion and independence under the terms and conditions of the MFN
Agreement to perform the MFN Evaluation in accordance with the terms and
conditions of the MFN Agreement.





	 	 	 
	

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	13.5.	 	Frequency of MFN Evaluation




	 	(a)	 	With effect from the Effective Date, the Parties shall instruct the MFN
Evaluator to perform a MFN Evaluation on an annual basis with respect to
each Contract Year and in accordance with the timescale set out in
Schedule M (‘Price Book Update Timescale’).
	 
	 	(b)	 	In addition to the provisions of clause 13.5(a), the Parties may agree
(in their sole and absolute discretion) to instruct the MFN Evaluator to
perform a MFN Evaluation with respect to a specified period at any time
during the Term.




	13.6.	 	Termination of a Benchmarking Agreement



In the event of termination of the appointment of the Independent Expert
pursuant to the provisions of clause 13.7 prior to the publication of the Price
to Volume Assessment Report, then the Parties shall instruct the MFN Evaluator
to prepare the MFN Evaluation Report and MFN Certification Report using the
Price to Volume Assessment Report relating to the immediately preceding
Contract Year and the Parties shall accept such report in accordance with the
provisions of clauses 13.8 and 13.9 and Equant shall implement the results and
recommendations of the MFN Evaluation Report in accordance with the provisions
of clauses 13.8 and 13.9.



	13.7.	 	Termination of a MFN Agreement
	 
	(a)	 	The Parties shall endeavour to include within the MFN Agreement a
specific right to terminate the MFN Agreement if the MFN Evaluator:




	 	(i)	 	fails to materially comply with the instructions and
methodologies set out in Schedule N (‘Instructions to the MFN
Evaluator’);
	 
	 	(ii)	 	breaches an obligation of confidentiality to either Party;
	 
	 	(iii)	 	undergoes a change in its business or affiliation that
either causes it to become a competitor of SITA SC, SITA INC, Equant
or an Affiliate of SITA SC, SITA INC or Equant or an Affiliate of
Equant; or
	 
	 	(iv)	 	fails to act in an independent manner (this criterion is not
intended to mean that the MFN Evaluation Report and MFN
Certification Report may not favour the commercial interests of one
Party over the commercial interests of another Party if the data
supports the conclusions of the MFN Assessment Report).




	(b)	 	In the event that any of the Parties knows or becomes aware of a breach
of a term or condition of a MFN Agreement by the MFN Evaluator giving rise
to a right of termination by the Parties under that agreement, then,
unless the right of termination is agreed to be waived by the Parties
(such agreement to be given in the sole and absolute discretion of each
Party):




	 	(i)	 	such Party shall immediately consult and agree with the other
Party whether the breach has or is likely to result in a material
impact on the results of the related MFN Evaluation; and





	 	 	 
	

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	 	(ii)	 	the Parties shall select and appoint a replacement MFN
Evaluator (the “Replacement MFN Evaluator”) in accordance with the
provisions of clauses 13.2 and 13.3 as soon as reasonably possible
and in any event within three (3) calendar months of the date on
which the agreement of the Parties is reached that the MFN Agreement
should be terminated.




	(c)	 	In the event that the Parties agree that the breach giving rise to the
right of termination has not or is not likely to result in a material
impact on the results of the MFN Evaluation, the Parties shall immediately
commence proceedings to terminate the MFN Agreement (in accordance with
the provisions of the MFN Agreement) with effect from the then current
Contract Year (the “Terminated MFN Period”). The Parties shall then
instruct the MFN Evaluator to complete the MFN Evaluation, MFN Evaluation
Report and MFN Certification Report for such Terminated MFN Period and
shall implement the results and recommendations of the MFN Report in
accordance with the provisions of clauses 13.8 and 13.9.
	 
	(d)	 	In the event that the Parties agree that the breach has or is likely to
result in a material impact on the results of the MFN Evaluation, the
Parties shall immediately commence proceedings to terminate the MFN
Agreement (in accordance with the provisions of the MFN Agreement) with
immediate effect and Equant shall:




	 	(i)	 	endeavour to estimate any MFN Refunds that would have been
due to SITA SC and/or SITA INC, as applicable, if the MFN Evaluation
had been completed according to the Schedule N (‘Instructions to the
MFN Evaluator’) and shall make such refund in accordance with the
provisions of clause 13.9;
	 
	 	(ii)	 	in its reasonable discretion, endeavour to estimate the
required adjustments to the Net Price Book Prices for Priced
Services for the following Contract Year and shall implement such
adjustments in accordance with clause 13.9; and
	 
	 	(iii)	 	serve written notice to SITA SC and/or SITA INC, as
applicable, of Equant’s compliance with and completion of the
provisions of clauses 13.7(d)(i) and 13.7(d)(ii) above, such notice to be
signed by a representative of Equant currently serving on the
Executive Committee;





	 	 	save that where the Replacement MFN Evaluator advises the Parties that
the remaining term of the Terminated MFN Period is sufficient to perform
a complete MFN Evaluation with respect to the Terminated MFN Period and
the Parties agree (in their sole and absolute discretion) that their
individual benefits and interests would not be reduced or disadvantaged,
then the Parties shall waive the requirements of clauses 13.7(d)(i) to 13.7(d)(iii)
above.
	 
	(e)	 	Further to the provisions of clause 13.7(b), the Parties shall also
instruct the Replacement MFN Evaluator to perform a MFN Evaluation with
respect to the Terminated MFN Period in accordance with the provisions of
clause 13 and Equant shall implement the results and recommendations of
the MFN Evaluation Report and MFN Certification Report as soon as
reasonably possible in accordance with the provisions of clauses 13.8





	 	 	 
	

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	 	 	and 13.9 and resulting payments or repayments between the Parties shall
be invoiced accordingly.
	 
	(f)	 	In addition to the provisions of this clause, in the event of termination
of a MFN Agreement prior to the expiry of the full three (3) year
contractual term, in the event that the termination occurs:




	 	(i)	 	at the end of the Contract Year, then the Parties shall
comply with the provisions of clauses 13.7(b) and 13.7(c) above; and
	 
	 	(ii)	 	prior to the end of a Contract Year, then the Parties shall
comply with the provision of clauses 13.7(b) and 13.7(d) above.




	(g)	 	Further to and in addition to the provisions of this clause, following
the expiry or termination of an MFN Agreement, the Parties shall use
commercially reasonable efforts to procure that the retiring MFN Evaluator
provides the immediately following MFN Evaluator with all materials in its
possession related to the MFN Evaluation (including any database, modelled
data and a draft in progress of the MFN Evaluation Report and the MFN
Certification Report, if relevant).
	 
	13.8.	 	Acceptance of the results of the MFN Evaluation Report and the MFN Certification Report



The results and determination of the MFN Refund of the MFN Evaluation Report
and the MFN Certification Report shall be accepted by the Parties and such
acceptance is final unless a Party initiates the Dispute Resolution Procedures
and such process results in a determination that the MFN Evaluator did not
materially comply with the instructions and methodology set out in Schedule N
(‘Instructions to the MFN Evaluator’).



	13.9.	 	Implementation of the MFN Evaluation Report and the MFN Certification
Report
	 
	(a)	 	The MFN Refund for each Benchmarking Region as reported in the MFN
Certification Report shall be credited to SITA SC and/or SITA INC, as
applicable, by Equant in accordance with the provisions of clause 10.
	 
	(b)	 	The results of the MFN Evaluation Report and MFN Certification Report
shall be incorporated by Equant within the Price Books for the following
Contract Year including any SITA Specific Discounts in accordance with the
provisions of clause 10 and at no cost to SITA SC, SITA INC or any SITA
Group Company.
	 
	13.10.	 	Costs of MFN Evaluation
	 
	(a)	 	SITA SC and Equant shall pay all fees, costs, expenses and/or other
reimbursements incurred by the MFN Evaluator in connection with the
performance and presentation of the MFN Evaluation, MFN Evaluation Report
and MFN Certification Report in equal parts and shall retain several
liability in respect of such fees, costs, expenses and/or other
reimbursements.





	 	 	 
	

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	(b)	 	Each Party shall pay and be severally liable for all fees, costs,
expenses and/or other reimbursements incurred on its own behalf.
	 
	13.11.	 	Equant and SITA SC Responsibilities



Equant and SITA SC each shall:



	(a)	 	authorise and appoint an appropriate individual to act as a single point
of contact for the MFN Evaluator and the other Parties with respect to
activities associated with the MFN Evaluation and each Party shall ensure
that each of the other Parties are notified of the contact details
(including name, address and facsimile number) of such individual
appointed pursuant to this clause;
	 
	(b)	 	provide all information, including full and accurate data requested by
the MFN Evaluator in connection with and relevant to the MFN Evaluation;
	 
	(c)	 	reasonably provide access to databases and systems requested by the MFN
Evaluator in connection with and relevant to the MFN Evaluation;
	 
	(d)	 	ensure the attendance by appropriate personnel at workshops, review
meetings and presentations; and
	 
	(e)	 	provide adequate staffing to facilitate the MFN Evaluator in conducting
the MFN Evaluation.
	 
	13.12.	 	Ex-parte communications



Equant and SITA SC shall not enter into ex-parte communication or
correspondence with the MFN Evaluator or nominated MFN Evaluators throughout
the nomination process and term of appointment of such MFN Evaluator pursuant
to this clause 13.



	13.13.	 	Actions during Dispute Resolution Procedures



In the event that a dispute is raised in respect of any aspect of the MFN
Evaluation, the Parties shall continue to perform under this Agreement as if no
dispute had been raised (including calculation and payment of the MFN Refunds
and adjustment of Price Book Prices and SITA Specific Discounts to reflect the
results of the MFN Evaluation Report, Interim MFN Evaluation Report MFN
Certification Report and Interim MFN Certification Report in accordance with
the provisions of clause 10). If the Dispute Resolution Procedures ultimately
result in a determination that the Price to Volume Curve Assessment or the MFN
Evaluation was in some manner defective or improper or the Independent Expert
or the MFN Evaluator did not materially comply with their respective
instructions set out under Schedule M (‘Instructions to the Independent
Expert’) and Schedule N (‘Instructions to the MFN Evaluator’), the Parties
shall reasonably agree on actions to be taken to implement the results of the
Dispute Resolution Procedures.




	 	 	 
	

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	14.	 	MINIMUM REVENUE COMMITMENT
	 
	(a)	 	The ‘Minimum Revenue Commitment’ (or ‘MRC’) is equal to:




	 	(i)	 	the Year Zero Cost Base, multiplied by 585 and divided by 610
for Contract Year One; and
	 
	 	(ii)	 	the Year Zero Cost Base, multiplied by 575 and divided by 610
for Contract Year Two.




	(b)	 	The following sums shall be deducted from the Minimum Revenue Commitment
(each sum a ‘Reduction Amount’):





	 	(i)	 	[ * ]
	 
	 	(ii)	 	[ * ]
	 
	 	(iii)	 	[ * ]
	 
	 	(iv)	 	[ * ]
	 
	 	(v)	 	[ * ]
	 
	 	(vi)	 	[ * ]
	 
	 	(vii)	 	[ * ]
	 
	 	(viii)	 	[ * ]








	 	 	 
	

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	 	(ix)	 	[*]
	 
	 	(x)	 	such other sum as may be agreed in writing between the
Parties.




	15.	 	NETWORK ACTIVITY FORECASTS
	 
	15.1.	 	Network Activity Forecasts
	 
	(a)	 	With effect from 20th October, 2001, SITA SC and/or SITA INC, as
applicable, shall provide a Quarterly Network Activity Forecast to Equant
on the following dates in each Contract Year:




	 	(i)	 	20th January;
	 
	 	(ii)	 	20th April;

	 
	 	(iii)	 	20th July; and




	 	 	 
	

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	 	(iv)	 	20th October (the “Quarterly Forecast Dates”).




	(b)	 	SITA SC and SITA INC shall provide an Annual Network Activity Forecast to
Equant on the 20th January of each Contract Year (the “Annual Forecast
Date”).
	 
	(c)	 	In the event that SITA SC or SITA INC provides a Network Activity
Forecast to Equant after the relevant Forecast Date, the Network Activity
Forecast shall apply with respect to the first day of the calendar month
immediately following the month in which SITA SC or SITA INC actually
provides the Network Activity Forecast to Equant. In addition, the
previous Network Activity Forecast shall remain in effect until such time
as SITA SC and/or SITA INC provide the updated Network Activity Forecast.
	 
	(d)	 	At least thirty (30) days prior to the relevant Forecast Date, Equant
shall provide to SITA SC and/or SITA INC, as applicable:




	 	(i)	 	complete and accurate relevant historical data relating to
connections, traffic and other Network Activity forecasting
parameters (as set out in Schedule N) for the most recent eighteen
(18) calendar months immediately preceding the relevant Forecast
Date; and
	 
	 	(ii)	 	a copy of the required electronic format agreed between the
Parties pursuant to clause 15.1(f).




	(e)	 	Equant hereby agrees to make improvements to the accuracy, completeness,
and timeliness of the historical data with respect to and in line with
changing forecast details and granularity. The Parties agree to work
together to improve forecasting and planning processes as well as
information exchange to facilitate these processes.
	 
	(f)	 	Each Network Activity Forecast shall comply with the parameters and
contain the level of detail specified in Schedule Q (‘Forecasting’) and
shall be generated using a computer software programme or application
agreed between the Parties. As of the Effective Date, Equant and SITA SC
and/or SITA INC, as applicable, agree that the Network Activity Forecasts
shall be provided using MS Excel spreadsheet formats. Equant may upon SITA
SC’s reasonable agreement, change the required format of the Network
Activity Forecasts to a format generated using a computer software
programme or applicable other than as agreed at the Effective Date. Such
alternative computer software programme or application shall be a computer
software or application which is either (i) generally accepted standard
office productivity software or (ii) could be contained within a specific
forecasting tool (to be provided by Equant at no cost to SITA) as either a
desktop or web-based application. In the event that Equant requires or
requests SITA SC and/or SITA INC, as applicable, to provide any Network
Activity Forecasts in a format generated using a computer software
programme or application other than that as at the Effective Date, such
request shall be made at least forty-five (45) calendar days prior to the
Forecast Date and Equant shall provide all relevant software (including up
to five (5) licences for use) and training for up to five (5) full-time
staff with respect to the use of such software, to SITA SC, SITA INC and
the SITA Group Companies at no cost or charge to SITA SC, SITA INC or any
of the SITA Group Companies.




	 	 	 
	

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	(g)	 	Any modifications to the Forecast Dates or Schedule Q shall be agreed by
the Parties, acting reasonably.
	 
	15.2.	 	Other information
	 
	(a)	 	On the 20th October of each Contract Year, SITA SC and/or SITA INC, as
applicable, shall provide to Equant details of their forecast use of the
following:




	 	(i)	 	professional services or similar services that are not
Network Services, where relevant, with respect to each Country; and
	 
	 	(ii)	 	Pass-Through Expenses and other costs managed by Equant on
SITA SC and/or SITA INC’s behalf at a reasonable level of detail;
and
	 
	 	(iii)	 	where applicable, forecast costs for contracted outsourced
networks managed by Equant on behalf of SITA SC and/or SITA INC but
not yet migrated to Equant’s network.




	(b)	 	SITA SC shall also provide to Equant relevant updates upon material
changes to the original forecast levels, whether foreseen independently or
as a result of advice from Equant due to observed changes in SITA’s actual
resource utilisation. The Parties agree to exchange relevant information
on these categories to facilitate planning and budgeting.
	 
	(c)	 	Any amendments or modifications to the frequency or level of detail
required in the supplemental forecasts provided pursuant to clause (b)
above shall be mutually agreed by the Parties, acting reasonably.
	 
	16.	 	RECOGNISABLE COSTS
	 
	16.1.	 	Significant Forecast Deviation and Recognisable Costs
	 
	(a)	 	Upon receipt of each Quarterly Network Activity Forecast from SITA SC
and/or SITA INC, as applicable, Equant shall review the Quarterly Network
Activity Forecast to identify any costs and expenses that would be
incurred by Equant as a result of the Quarterly Network Activity Forecast for a Service or product
in each Country Group in the event that:




	 	(i)	 	the value of the actual activity of SITA SC, SITA INC and the
SITA Group Companies achieved during the period of time relating to
such Quarterly Network Activity Forecast (the “Achieved Activity”)
for a Service or product in a Country Group is less than the value
of the forecast activity for such Service or product in such Country
Group set out in the relevant Quarterly Network Activity Forecast
(the “Quarterly Network Activity Forecast Value”) by a minimum of
ten per cent. of the relevant Quarterly Network Activity Forecast
Value; and
	 
	 	(ii)	 	Equant’s other sales channels (both internal and/or
external),on the basis of their forecasted growth, would be unable
to accommodate, utilise or absorb the activity forming the
difference between:




	 	 	 
	

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	 	(A)	 	the Achieved Activity; and





	 	(B)	 	the Quarterly Network Activity Forecast Value,
	 
	 	during a period of six (6) months,





	 	 	(a “Significant Forecast Deviation”).




	(b)	 	Subject to clause 10.5(b)(i), in the event of a Significant Forecast Deviation, any cost or expense
incurred by Equant on behalf of SITA SC, SITA INC and the SITA Group
Companies in order to accommodate the Quarterly Network Activity Forecast
and that is greater than one hundred thousand U.S. Dollars ($100,000), calculated on the basis of
an ongoing cost or expense where any capital expenditure is converted to
an ongoing cost or expense at the rate of depreciation in accordance with
generally accepted accounting practices, shall be a “Recognisable Cost”
provided that the value of any ongoing cost or expense is limited to the
amount of such cost or expense over a period of twelve (12) consecutive
calendar months commencing from the date on which such cost or expense was
incurred.
	 
	(c)	 	Within twenty (20) calendar days of receipt of a Quarterly Network
Activity Forecast, Equant shall provide SITA SC and/or SITA INC, as
applicable a written report setting out a full analysis of the Quarterly
Network Activity Forecast with respect to any Recognisable Costs, such
report to include:




	 	(i)	 	a definition of the range of activity in respect of which any
Recognisable Cost could be incurred, including thresholds for
increases and decreases in the Recognisable Cost that could be
incurred;
	 
	 	(ii)	 	growth forecast for all other sales channels in respect of
each situation or area in respect of which any Recognisable Cost
could be incurred;
	 
	 	(iii)	 	the costs and expenses forming such Recognisable Cost giving
full details of the nature, location and amount;
	 
	 	(iv)	 	the reasons for the Recognisable Costs, including drivers
(for example, the number and type of equipment) and the activity
trigger levels;
	 
	 	(v)	 	the latest date on which, in the event that SITA SC and/or
SITA INC, as applicable, do not amend or revise their Quarterly
Network Activity Forecast pursuant to clause 16.2, the Recognisable
Cost would be incurred by Equant (the “Commitment Date”);
	 
	 	(vi)	 	alternative methods and strategies for limiting the exposure
and amount of SITA SC and/or SITA INC, as applicable, to
Recognisable Costs together with the date on which such alternative
method or strategy must be implemented in order to limit the
exposure and amount of SITA SC and/or SITA INC, as applicable, to
Recognisable Costs (the “Alternative Commitment Date”),




	 	 	(the “Evaluation Paper”).




	 	 	 
	

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	(d)	 	Within twenty (20) calendar days following the receipt of a Quarterly
Network Activity Forecast, Equant shall also provide an Evaluation Paper
to SITA SC and/or SITA INC, as applicable, in respect of any Recognisable
Costs identified in connection with the previous four (4) Quarterly
Network Activity Forecasts provided by SITA SC and/or SITA INC, as
applicable.
	 
	(e)	 	Within twenty (20) calendar days following receipt of an Evaluation
Paper, SITA SC and/or SITA INC, as applicable, shall provide a written
response to Equant with respect to the Recognisable Costs identified
within the Evaluation Paper and the Parties shall reasonably agree, the
identification of any cost or expense in order to accommodate the
Quarterly Network Activity Forecast as Recognisable Costs. Such agreement
on the part of SITA SC and/or SITA INC is subject to the provisions of
clause 16.1(g).
	 
	(f)	 	SITA SC and/or SITA INC shall provide Equant reasonable notice if SITA SC
and/or SITA INC, as applicable, accepts an alternative strategy to limit
exposure to Recognisable Costs proposed by Equant, or amends, edits or
provides new or revised versions of the Quarterly Network Activity
Forecast with respect to a Recognisable Cost (a “Revised Forecast”).
Equant shall then (within a reasonable time) evaluate the Revised Forecast
and provide SITA SC and/or SITA INC, as applicable, with an Evaluation
Paper setting out changes, if any, in respect of Recognisable Costs with
respect to the revised portion of such Revised Forecast.
	 
	(g)	 	Equant shall obtain the written authorisation of SITA SC and/or SITA INC,
if applicable, such authorisation to be obtained on either the Commitment
Date or the Alternative Commitment Date prior to incurring any
Recognisable Costs.
	 
	(h)	 	Equant shall identify any aspect of the Quarterly Network Activity
Forecast that it deems to require a SITA specific investment or investment
being made solely on behalf of SITA SC and/or SITA INC. In the event that Equant elects not
to make such investment itself, such investment shall be escalated to the
Network Planning Committee for consideration of potential funding by SITA SC and/or SITA INC, as applicable.

	 
	(i)	 	If the Achieved Activity is greater than the Network Forecast, the
Parties shall mutually agree the appropriate treatment of any costs that
might be associated with such over-performance.
	 
	16.2.	 	Mitigation of Recognisable Costs
	 
	(a)	 	SITA SC and/or SITA INC, as applicable, shall retain the right to amend,
edit or provide new or revised versions of the Quarterly Network Activity
Forecast with respect to the Recognisable Cost from the respective
Forecast Date until and including the later of either (i) the Commitment
Date or (ii) the Alternative Commitment Date.
	 
	(b)	 	If at any time on or after a Commitment Date or Alternative Commitment
Date, it is brought to the actual knowledge of SITA SC and/or SITA INC, as
applicable, that the Achieved Activity will be less than the Quarterly
Network Activity Forecast Value, SITA




	 	 	 
	

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	 	 	SC and/or SITA INC, as applicable, shall promptly notify Equant
and Equant shall use commercially reasonable efforts to minimise
any resulting Recognisable Costs.
	 
	16.3.	 	Payments in respect of Recognisable Costs
	 
	(a)	 	The monthly amount payable by SITA SC and/or SITA INC, as applicable,
from the date on which the Recognisable Costs occur and for a maximum
period of twelve (12) calendar months, the “Recognisable Cost Payment” for
each month of the Duration to Equant shall be equal to:
	 
	 	 	[*]
	 
	(c)	 	Equant shall use commercially reasonable efforts to assist SITA SC and/or
SITA INC in the minimisation of the Recognisable Costs by absorbing such
costs through its other channels.




	 	 	 
	

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	16.4.	 	Payment and semi-annual summaries
	 
	(a)	 	At the same time as it provides the invoice noted below, Equant shall at,
the end of each half Contract Year, provide SITA SC and/or SITA INC, as
applicable, a consolidated summary and review of the Recognisable Costs
incurred throughout that Contract Year.
	 
	(b)	 	Equant shall invoice SITA SC and/or SITA INC, as applicable, at the end
of each month for any Recognisable Costs incurred by Equant throughout
that Contract Year in accordance with the procedure set out under clause
18. This invoice shall include all appropriate parameters, calculations,
and supporting documentation relevant to the invoiced charges.
	 
	16.5.	 	Minimum Revenue Commitment



The value of the Minimum Revenue Commitment shall be reduced by the value of
any Recognisable Cost Payment paid by SITA SC and/or SITA INC, as applicable,
to Equant during the appropriate Contract Year.



	16.6.	 	Limitation on liability
	 
	(a)	 	SITA SC and/or SITA INC, as applicable, shall not be required to make
Recognisable Cost Payments in respect of a Recognisable Cost where:




	 	(i)	 	Equant have failed to identify such Recognisable Cost to SITA
SC and/or SITA INC in an Evaluation Paper; and/or
	 
	 	(ii)	 	Equant have incurred such Recognisable Cost without the prior
written authorisation of SITA SC and/or SITA INC, as applicable.




	(b)	 	This clause sets out the sole rights of Equant with respect to its right
of reimbursement of costs incurred as a result of any deviation between
the Achieved Activity and the related Quarterly Network Activity Value.
	 
	17.	 	RELIANCE ON HISTORICAL DATA
	 
	(a)	 	The Parties hereby acknowledge and agree that the Network Activity
Forecasts provided by SITA SC and/or SITA INC, as applicable are based in
part on the accuracy and completeness of the historical data provided by
Equant to SITA SC and/or SITA INC, as applicable, pursuant to clause
15.1(d) (the “Historical Data”). SITA SC and/or SITA INC, as applicable,
shall retain the right to initiate Dispute Resolution Proceedings with
respect to the accuracy and completeness of all or any part of the
Historical Data. Save to the extent that such Historical Data was created
prior to the Effective Date (where, for the avoidance of doubt, Historical
Data provided to SITA SC and/or SITA INC after the date which is eighteen
calendar months (18) after the Effective Date shall be wholly created or
generated by Equant after the Effective Date), in the event that all or
any part of the Historical Data is found to be either materially
incomplete or inaccurate pursuant to the Dispute Resolution Process then:





	 	 	 
	

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	 	(i)	 	SITA SC and/or SITA INC, as applicable, shall not be required
to make payments in respect of related Recognisable Costs to the
extent such Recognisable Costs were incurred as a result of such
material inaccuracy or incompleteness; and
	 
	 	(ii)	 	any other adjustments to the Service Charges or volume as
agreed between the Parties shall be implemented.




	18.	 	INVOICING AND PAYMENT
	 
	18.1.	 	Invoicing
	 
	(a)	 	Equant shall invoice the Service Charges to SITA SC (or such other SITA
Group Company as set out in clause 9.2) for the Services rendered by
Equant, along with other amounts payable under this Agreement:




	 	(i)	 	in respect of each calendar month in arrears;
	 
	 	(ii)	 	in US Dollars, unless the Parties agree on a case by case
basis that specific invoices will be rendered in a currency other
than US Dollars;
	 
	 	(iii)	 	unless otherwise agreed by the Parties, in both hard copy
and electronic format;
	 
	 	(iv)	 	not later than the twenty-fourth day of each calendar month
in respect of the invoiced period; and
	 
	 	(v)	 	in respect of any periodic Service Charges, on a calendar
month basis in arrears and apportioned on a day to day basis for any
partial month usage in accordance with the Cutover and Termination Rules set out in Schedule B (‘Price Books’), Part II.




	(b)	 	Each invoice, together with the Billing Information, SITA Mediation
Files, Reconciliation Report and Detailed Billing Information relating to
the invoiced period shall be delivered to the SITA SC Representative
and/or the SITA INC Representative, as applicable, in accordance with the
Billing Mediation Service Level.
	 
	(c)	 	For the purposes of this clause 18, delivery by Equant to SITA SC and/or
SITA INC, as applicable, of the SITA Mediation Files, and the Detailed
Billing Information shall be satisfied by the provision of electronic
(read-only) access to such information by Equant to SITA SC and/or SITA
INC, as applicable.
	 
	18.2.	 	Amendments to Billed Entities
	 
	(a)	 	Subject to clause 18.2(b) and clause 6.3, if SITA SC and/or SITA INC, as
applicable, in accordance with clause 9.2 above, requests Equant to amend,
alter or change the Billed Entities:




	 	(i)	 	SITA SC and/or SITA INC shall provide Equant reasonably
detailed specifications for the requested amendment, alteration or
change;





	 	 	 
	

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	 	(ii)	 	Equant shall notify SITA SC and/or SITA INC, as appropriate,
in respect of the period of time in which such amendment, alteration
or change can be implemented during the normal course of business
and whether Equant will incur a material cost in the implementation
thereof;
	 
	 	(iii)	 	if no material cost will be incurred by Equant in making the
requested amendment, alteration, or change and the time specified by
Equant as being required to implement the requested amendment,
alteration, or change in the normal course of business is confirmed
in writing by SITA SC and or SITA INC as being acceptable to SITA SC
and/or SITA INC, as applicable, then Equant shall implement such
changes (using commercially reasonable efforts to do so within the
specified time);
	 
	 	(iv)	 	if the time specified by Equant as being required to
implement the requested amendment, alteration, or change in the
normal course of business is not acceptable to SITA SC and/or SITA
INC, as applicable, then the Parties shall discuss and attempt to
agree (any such agreement to be confirmed in writing by the Parties)
either revised specifications that Equant can implement in the
normal course of business in the period of time requested by SITA SC
and/or SITA INC, as applicable, or for SITA SC and/or SITA INC, as
applicable, to reimburse Equant’s expenses in expediting the
requested amendment, alteration, or change; and
	 
	 	(v)	 	if a material cost will be incurred by Equant in making the
requested amendment, alteration, or change, the Parties shall
discuss and attempt to agree (any such agreement to be confirmed in
writing by the Parties) either revised specifications that Equant
can implement without incurring material cost (or with incurring
lesser material cost) or for SITA SC and/or SITA INC to reimburse
Equant’s expenses in implementing the requested amendment,
alteration, or change.




	(b)	 	Subject to clause 18.2(c) and clause 6.3, the Parties agree that where
any amendments, alterations or changes to the Billed Entities, Billing
Entities and/or Remitting Entities are requested by SITA SC and/or SITA
INC at any time during the initial twelve (12) months of this Agreement,
such requests shall be implemented by Equant as soon as reasonably
possible at no cost, charge or expense to either SITA SC and/or SITA INC.
	 
	(c)	 	Subject to clause 6.3, in the event that a request by SITA SC and/or SITA
INC, as appropriate, is made in respect of an amendment, alteration or
change to a Billing Entity, Billed Entity or Remitting Entity during the
initial twelve (12) months of this agreement and such amendment,
alteration or change will result in a material cost to Equant that is
attributable to the development of billing procedures and/or systems which
are primarily for the use of SITA SC and/or SITA INC, then the respective
Parties will comply with the provisions of clause 18.2(a)(v).
	 
	(d)	 	Subject to clause 6.3, in the event that a Transfer pursuant to and in
accordance with the terms and conditions of the Transition and Management
Agreement results in an




	 	 	 
	

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	 	 	amendment, alteration or change to a Billing
Entity, Billed Entity or Remitting Entity neither
Equant, SITA SC, SITA INC or any of the SITA Group
Companies shall be liable to pay any amounts, costs
or expenses to any other Party as a result of an
amendment, alteration or change to a Billing
Entity, Billed Entity or Remitting Entity arising
as a result of such Transfer.








	18.3.	 	Invoice Content and Format



Each invoice shall be in the format substantially specified in Schedule S, or
as Equant and SITA SC (in respect of itself and invoices rendered to the SITA
Group Companies, including SITA SC while SITA SC is Controlled by the SITA INC
Foundation) and/or SITA INC (if SITA INC is no longer Controlled by the SITA
INC Foundation) otherwise reasonably agree in writing.



	18.4.	 	Detailed Billing Files and Mediation Data
	 
	(a)	 	Each invoice shall comply with the terms of the Billing Mediation Service
Level and shall be accompanied by:




	 	(i)	 	reports and files setting out
[*] billing information [*]);
	 
	 	(ii)	 	electronic (read only) access to the SITA Mediation Files;
	 
	 	(iii)	 	subject to clause 18.4(b), a statement reconciling the
activity billed to SITA SC or SITA INC, as appropriate, with the
activity recorded in the SITA Mediation Files (the “Reconciliation
Report”) in respect of the period invoiced; and
	 
	 	(iv)	 	electronic (read only) access to detailed billing information
on both a global and per country basis on a level of granularity
that will allow SITA SC and/or SITA INC to identify and verify
levels of activity in respect of [*]).




	(b)	 	The Parties understand that as of the Effective Date Equant does not have
the capability to deliver a full and complete Reconciliation Report.
Accordingly, the Parties agree that upon Equant’s failure to deliver a
full and complete Reconciliation Report in accordance with the provisions
of clause 18.4(a) for any invoiced period within the period commencing
from the Effective Date and terminating six (6) calendar months
thereafter:




	 	(i)	 	subject to clause 18.4(b)(iii) below, such Reconciliation
Report shall be considered complete and accurate for the purposes of
this clause 18;
	 
	 	(ii)	 	Equant shall deliver a full and complete Reconciliation
Report in respect of each invoiced period to SITA SC and/or SITA
INC, as appropriate, as soon as reasonably practicable and in any
event within six (6) months from the Effective Date; and





	 	 	 
	

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	 	(iii)	 	SITA SC and SITA INC shall hold the right to raise a dispute
in respect of the Reconciliation Report relating to each such
invoiced period for a period of twelve (12) months following the
date of receipt of each full and complete Reconciliation Report
pursuant to clause 18.4(b)(ii) by either SITA SC and/or SITA INC, as
appropriate.




	18.5.	 	Payment Due
	 
	(a)	 	Subject to clause 18.5(b) below, SITA SC and SITA INC shall pay in full
all invoices by the last day of the calendar month following the calendar
month in which the latest of the invoice, Billing Information, SITA
Mediation Files, Reconciliation Report or Detailed Billing Information
was received by SITA SC and/or SITA INC, as applicable (the “Due Date”).
	 
	(b)	 	In the event that SITA SC and/or SITA INC believes that a bona fide
dispute exists in respect of any amount specified under any invoice
rendered by Equant (the “Disputed Amount”) and/or in respect of any
information set out under the Billing Information, SITA Mediation Files or
Reconciliation Report or Detailed Billing Information (“the Disputed
Information”), then:




	 	(i)	 	SITA SC and/or SITA INC shall promptly notify Equant in
writing of the Disputed Amount and/or Disputed Information;
	 
	 	(ii)	 	within fifteen (15) days following receipt of the SITA SC
and/or SITA INC notice pursuant to clause 18.5(b)(i), Equant shall
provide written advice (by reference to the SITA Mediation Files or
other Network data) that either justifies the Disputed Amount and/or
Disputed Information or corrects the Disputed Amount and/or Disputed
Information;
	 
	 	(iii)	 	within fifteen (15) days after the receipt of such Equant
written advice, SITA SC and/or SITA INC, as appropriate, shall
notify Equant in writing in respect of SITA SC’s and/or SITA INC’s,
agreement and acceptance of the written advice provided to SITA SC
and/or SITA INC by Equant pursuant to clause 18.5(b)(ii);
	 
	 	(iv)	 	following either:




	 	(A)	 	failure on the part of Equant to provide
written notice pursuant to clause 18.5(b)(ii) justifying the
Disputed Amount and/or Disputed Information within fifteen
(15) days (or other period of time as the relevant Parties
may agree in writing); or





	 	(B)	 	delivery of written notification by either SITA
SC and/or SITA INC to Equant of non-acceptance of Equant’s
justification pursuant to clause 18.5(b)(ii),





	 	then SITA SC and/or SITA INC may withhold payment of any remaining
Disputed Amount (regardless of whether such amounts may have been




	 	 	 
	

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	 	 	 	previously paid) and either of the relevant Parties may initiate
dispute resolution procedures in accordance with clause 29; and





	 	(v)	 	subject to:




	 	(A)	 	the provision of written notification by SITA
SC and/or SITA INC to Equant pursuant to clause 18.5(b)(iii)
confirming agreement with Equant’s written advice provided to
SITA SC and/or SITA INC pursuant to clause 18.5(b)(ii); and





	 	(B)	 	the provisions of clause 18.5(b)(iv),





	 	 	 	if the written advice provided by Equant to SITA SC and/or
SITA INC corrects or amends the Disputed Amount, such
correction shall be reflected either:





	 	I)	 	on the invoice for the invoiced
period during which the date on which such written
advice is received by SITA SC and/or SITA INC and the
amount payable by SITA SC and/or SITA INC in respect of
such correction (if any) shall become due and payable
as if such amount had initially been rendered on that
invoice; or





	 	II)	 	on a credit note issued by Equant
to SITA SC and/or SITA INC, as appropriate, prior to
the date on which the invoice for the invoiced period
during which the written advice is received by SITA SC
and/or SITA INC.





	(c)	 	SITA SC and/or SITA INC, as appropriate, shall hold the right to raise a
dispute in respect of any invoice, Billing Information, SITA Mediation
File, Reconciliation Report or Detailed Billing Information, within twelve
(12) calendar months following the date of receipt by SITA SC and/or SITA
INC, as appropriate, of such invoice, Billing Information, SITA Mediation
File, Reconciliation Report or Detailed Billing Information. If after
such twelve (12) month period SITA SC and/or SITA INC, as appropriate, has
not provided written notice in accordance with clause 18.5(b)(i), such
invoice, Billing Information, SITA Mediation File, Reconciliation Report
or Detailed Billing Information shall be deemed correct.
	 
	18.6.	 	Pass Through Expenses
	 
	(a)	 	Tail Circuits




	 	(i)	 	Equant shall invoice SITA SC and/or SITA INC, as applicable, for an amount
equal to [*] of the amount (net of any discounts)
invoiced by Equant to SITA SC and/or SITA INC, as applicable, with
respect to any Tail Circuits procured and managed by Equant on
behalf of SITA SC and/or SITA INC on a calendar month basis in
arrears (the “Monthly Management Fee”) in accordance with the
provisions of this clause 18.




	 	 	 
	

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	 	(ii)	 	In addition to the Management Fee, SITA SC and/or SITA INC
may agree to contribute to any development costs incurred by Equant
with respect to Tail Circuit Service Levels provided that such
development costs are incurred by Equant for the sole purpose of
satisfying requirements specific to SITA SC and/or SITA INC. Such
requirements shall be functionalities that both (A) provide
non-standard services based on services in the market and (B) will
not be made available, either in whole or in part, to any other
customers of Equant or distributors directly but may be used for
Equant’s internal use. Such developments will be subject to the
formal financial approval of SITA SC and/or SITA INC and will be
recovered through a monthly development contribution fee
[*] (the
“Monthly Development Contribution Fee”). Operating costs and
expenses associated with these developments (other than
depreciation) will not give rise to a specific charge but will be
covered by the Management Fee.
	 
	 	(iii)	 	In the event that the total of the Monthly Management Fees
together with the Monthly Development Contribution Fee paid or
payable by SITA SC and SITA INC with respect to a Contract Year are
less [*] (the “Minimum Management Fee”), then SITA SC and/or SITA INC, as
applicable, shall promptly pay Equant the difference between [*] and the total
Monthly Management Fees for such Contract Year following the
completion of such Contract Year.
	 
	 	(iv)	 	If the developments result in cost savings that allow Equant
to provide Tail Circuits to SITA SC, SITA INC and the SITA Group
Companies for less than the Minimum Management Fee during a Contract
Year, then Equant shall provide such savings to SITA SC and/or SITA
INC. SITA SC and SITA INC shall have the right to audit and review
such developments and related costs to determine whether such
savings should be provided to them by Equant.
	 
	 	(v)	 	Equant shall invoice SITA SC and/or SITA INC, as applicable,
for an amount equal to [*] for Tail
Circuits during the preceding quarter. Such advance shall be
rounded to the nearest [*] and shall be adjusted quarterly. The Parties shall review each year
the amount of the advance as a percentage of the average monthly
charge for Tail Circuits and reasonably agree adjustments, if any,
required to maintain cash flow neutrality for each of the Parties.
	 
	 	(vi)	 	All payments made by SITA SC and SITA INC to Equant shall be
in US Dollars. Any required conversions shall be shown on the
applicable invoice and will be based on a rate as at the last day of
the month prior to the month of the invoice, such rate to be agreed
between the Parties concerned.




	(b)	 	Other Pass Through Expenses




	 	 	 
	

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	 	(i)	 	Unless otherwise agreed by the Parties (acting in their sole
and absolute discretion), all Pass-Through Expenses other than Tail
Circuits shall be invoiced directly to SITA SC, SITA INC, or the
SITA Group Company concerned, as appropriate, on a calendar month
basis in arrears and based on invoices received by Equant from the
third party provider of the Pass Through Expenses.
	 
	 	(ii)	 	The Parties shall periodically review the level of all Pass
Through Expenses other than Tail Circuits. If any such Pass Through
Expenses reach a material level over a Contract Year, the Parties
shall reasonably agree a mechanism (including a management fee and
some level of payment in advance) that achieves cash flow neutrality
for each of the Parties.




	18.7.	 	Interest
	 
	(a)	 	Amounts not paid by Equant, SITA SC or SITA INC by the Due Date that are
not subject to a bona fide dispute shall accrue interest at the rate of
one per cent (1%) above the U. S. Dollar three (3) month London Interbank
Offer Rate (LIBOR) appearing on the Reuters Screen LIBOR 01 Page as of
11.00 a.m., London Time, and which shall be determined on the Effective
Date and thereafter at the last day of each calendar year.
	 
	(b)	 	Interest on Disputed Amounts that are not paid by Equant, SITA SC or SITA
INC by the Due Date or on amounts that are found to be owing by Equant to
SITA SC and/or SITA INC pursuant to procedures set out under either clause
18.5(b) or clause 29 shall apply as follows:




	 	(i)	 	amounts that are determined by the dispute resolution process
not to be owed by the Party raising the dispute shall not accrue
interest for any period whatsoever; and
	 
	 	(ii)	 	amounts that are determined by the dispute resolution process
to be owed by the Party raising the dispute shall accrue interest at
the rate specified in clause 18.7(a) that is applicable to the
calendar year in which the Due Date fell, with effect from and
including the Due Date until but not including the date of actual
receipt of payment.




	18.8.	 	Right of Set-Off
	 
	(a)	 	Following service of five Business Days’ written notice, SITA SC and/or
SITA INC, as appropriate, shall be entitled to exercise the right to
set-off any amount payable by Equant to SITA SC and/or SITA INC, as
appropriate, under this Agreement, or the Transition and Management
Agreement from any amount due to Equant from SITA SC or SITA INC, as
appropriate, under this Agreement or the Transition and Management
Agreement.
	 
	(b)	 	Following service of five Business Days’ written notice, Equant shall be
entitled to exercise the right to set-off any amount payable by SITA SC
and/or SITA INC, as appropriate, under this Agreement or the Transition
and Management Agreement from




	 	 	 
	

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	 	 	any amount due to SITA SC and/or SITA INC, as appropriate, under this
Agreement or the Transition and Management Agreement.
	 
	(c)	 	Except as otherwise agreed, no Party shall be entitled to exercise the
right to set-off any amount alleged to be payable by one Party (the
“Invoiced Party”) to another Party (the ‘Invoicing Party’) in respect of
any amount due to the Invoiced Party from the Invoicing Party under any
contract between such Parties other than under this Agreement, the
Strategic Relationship Umbrella Agreement or the Transition and Management
Agreement.
	 
	(d)	 	Following service of five Business Days’ written notice, Equant and SITA
SC and/or SITA INC shall be entitled to exercise the right to set-off an
amount equivalent to a maximum of three (3) months Service Charges against
any amounts that form the subject of the Dispute Resolution Procedures as
a result of any right, power or remedy provided by law or under this
Agreement, the Strategic Umbrella Relationship Agreement or the Transition
and Management Agreement.
	 
	(e)	 	This clause 18.8 is intended to give rights in contract only and is not
intended to constitute, create or give rise to any security interest or
charge of any kind over any asset of any Party. If and to the extent that
any right conferred under this clause would, notwithstanding the foregoing
sentence, constitute, create or give rise to any security interest or
charge, such right shall be of no effect.
	 
	19.	 	SITA SC AND SITA INC RESPONSIBILITIES
	 
	19.1.	 	SITA SC Representative and SITA INC Representative
	 
	(a)	 	SITA SC shall designate one individual to whom all Equant’s
communications concerning this Agreement may be addressed (the ‘SITA SC
Representative’). The SITA SC Representative shall:




	 	(i)	 	hold overall managerial responsibility for SITA SC’s duties
and obligations under this Agreement and (within SITA SC’s generally
applicable corporate governance directives in respect of the
management level approval required to make certain financial
commitments) SITA SC shall grant to the SITA SC Representative full
authority and power to make decisions with respect to actions to be
taken by SITA SC in the ordinary course of day-to-day management of
this Agreement;
	 
	 	(ii)	 	act as SITA SC’s primary liaison with Equant’s Project
Executive;
	 
	 	(iii)	 	be granted direct access to SITA SC’s key decision makers;
and
	 
	 	(iv)	 	be provided by SITA SC with all of the experience, expertise
and resources of SITA SC required in order fully to execute and
perform the role, responsibilities and duties of the SITA SC
Representative.




	 	 	 
	

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	(b)	 	SITA INC shall designate one individual to whom all Equant’s
communications concerning this Agreement may be addressed (the ‘SITA INC
Representative’). The SITA INC Representative shall:




	 	(i)	 	hold overall managerial responsibility for SITA INC’s duties
and obligations under this Agreement and (within SITA INC’s
generally applicable corporate governance directives in respect of
the management level approval required to make certain financial
commitments) SITA INC shall grant to the SITA INC Representative
full authority and power to make decisions with respect to actions
to be taken by SITA INC in the ordinary course of day-to-day
management of this Agreement;
	 
	 	(ii)	 	act as SITA INC’s primary liaison with Equant’s Project
Executive;
	 
	 	(iii)	 	be granted direct access to SITA INC’s key decision makers;
and
	 
	 	(iv)	 	be provided by SITA INC with all of the experience, expertise
and resources of SITA INC required fully to execute and perform the
role, responsibilities and duties of the SITA INC Representative.




	19.2.	 	Co-operation; Specific Obligations
	 
	(a)	 	SITA SC and SITA INC shall cooperate with Equant by:




	 	(i)	 	making available, as reasonably requested by Equant,
management decisions, business information, approvals and
acceptances of SITA SC and/or SITA INC (as applicable) so that
Equant may accomplish its obligations and responsibilities under
this Agreement; and
	 
	 	(ii)	 	providing to the Equant Project Executive reasonable access
to SITA SC’s and SITA INC’s senior managerial and technical
personnel, engineers, designers and equivalent personnel and to SITA
SC’s network management records and information.




	(b)	 	SITA SC and/or SITA INC, as appropriate, will:




	 	(i)	 	provide reasonable documentation and assistance to Equant to
assist Equant in providing the Network Services in each Country;
	 
	 	(ii)	 	not knowingly itself use the Network for any unlawful
purposes, and shall in its customer contracts executed or renewed
six (6) months or more after the Effective Date impose a similar
obligation on its customers;
	 
	 	(iii)	 	not knowingly itself introduce a virus onto the Network, and
shall in its customer contracts executed or renewed six (6) months
or more after the Effective Date impose a similar obligation on its
customers;




	 	 	 
	

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	 	(iv)	 	not knowingly itself publish, transmit, distribute or
download any illegal, pornographic, defamatory, obscene or indecent
material on the Network, and shall in its customer contracts
executed or renewed six (6) months or more after the Effective Date
impose a similar obligation on its customers;
	 
	 	(v)	 	not itself obtain or attempt to obtain access to unauthorised
parts of the Network, and shall in its customer contracts executed
or renewed six (6) months or more after the Effective Date impose a similar
obligation on its customers; and
	 
	 	(vi)	 	allow Equant reasonable access to any SITA SC, SITA Group
Company or SITA INC facilities as may be necessary for Equant to
perform the Services.




	19.3.	 	Failure to Perform
	 
	(a)	 	In the event that Equant is unable to perform any of its obligations
under this Agreement, including failure to meet Service Levels, as a
result of any breach of SITA SC or SITA INC, as applicable, to perform
their respective obligations under this Agreement, Equant shall only be
entitled to rely upon such SITA SC or SITA INC breach as relieving Equant
from performance of any of its obligations:




	 	(i)	 	if Equant shall have notified SITA SC and/or SITA INC
promptly in writing after such SITA SC or SITA INC breach came to
Equant’s attention, such notice setting out in reasonable detail the
nature of such breach; and
	 
	 	(ii)	 	to the extent that such breach by SITA SC and/or SITA INC, as
applicable, precludes, delays, or restricts performance by Equant of
its obligations under this Agreement.




	(b)	 	To the extent that Equant incurs additional costs in performing its
obligations under this Agreement which are caused by SITA SC’s or SITA
INC’s failure to perform its responsibilities, SITA SC and/or SITA INC, as
appropriate, shall reimburse such costs.
	 
	(c)	 	To the extent that SITA SC and/or SITA INC incur additional costs in
performing their obligations under this Agreement which are caused by
Equant’s failure to perform its responsibilities, Equant shall reimburse
such costs.
	 
	20.	 	EQUANT RESPONSIBILITIES
	 
	20.1.	 	Other Equant Obligations to SITA SC and/or SITA INC
	 
	(a)	 	Equant shall provide SITA SC and SITA INC with the Reports in the format
and at the frequency specified in Schedule G (‘Reports’) and read-only
access to the same database that Equant uses with respect to Network
topography and points of presence.
	 
	(b)	 	Equant shall provide all necessary operational and financial
Network-related information required by SITA SC or SITA INC in respect of
their respective businesses. Equant and SITA SC and/or SITA INC shall
reasonably agree the nature of this information, but will always be
subject to Equant’s obligations, based on the advice of legal counsel,
under




	 	 	 
	

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	 	 	applicable corporate and securities Laws as a listed company with respect
to non-public information; provided that Equant shall take all actions to
the extent permitted under such Laws to release to SITA SC (and/or to
SITA INC, as applicable) as much of such information as possible.
	 
	(c)	 	Equant shall make available appropriate senior network managers
designated by Equant to attend and support, when reasonable and necessary,
SITA SC’s operational review meetings, and meetings of its board of
directors and any subcommittees thereof. Equant shall take such follow up
actions agreed by Equant and SITA SC resulting from these meetings. SITA
SC shall provide written notice pursuant to clause 30.2 of such meetings
at least seven (7) days in advance of such meetings. Attendance of Equant
personnel at such meetings shall normally be in person unless SITA SC
consents to an alternative method (eg, videoconference) of participation;
provided, however, that SITA SC shall not unreasonably withhold, condition
or delay such consent. If SITA SC requires the physical presence of any
individual at a location on a continent other than the continent where
such individual is normally based, then the Parties shall pay the travel
expenses of such individual as follows:




	 	(i)	 	Equant shall bear the travel expenses for up to a total of
twelve (12) such intercontinental trips for such individuals during
each calendar year; and
	 
	 	(ii)	 	SITA SC shall reimburse (or arrange for the direct payment
of) the travel expenses of all intercontinental trips for such
individuals in excess of twelve (12) during each calendar year.
SITA SC shall reimburse such travel expenses in accordance with
Equant’s then-current corporate travel policy.




	(d)	 	Equant shall provide resources in order to support SITA SC’s and SITA
INC’s internal network needs as well as its standard and specific customer
requirements, including specific products (subject to clause 4),
geographic coverage (subject to clause 5.1, clause 5.2 and clause 5.3),
outsourced networks, customised solutions and access to specialist
functions (eg, product management and development, product marketing,
engineering, and customer support activities). Reimbursement of the cost
for (if any), or payment of Service Charges relating to (if any), such
resources shall be as set out in the Price Books.
	 
	20.2.	 	Equant Project Executive



Equant shall designate one individual to whom all SITA SC’s and SITA INC’s
communications concerning this Agreement may be addressed (the ‘Equant Project
Executive’), without prejudice to the SITA Group Companies’ access to the
dedicated strategic partnership unit, and additional communications channels
and ad hoc contacts between the Parties at an operational level pursuant to
clause 6 of the Strategic Relationship Umbrella Agreement. The Equant Project
Executive shall:



	(a)	 	hold overall managerial responsibility for Equant’s duties and
obligations under this Agreement and (within Equant’s generally applicable
corporate governance directives in respect of the management level
approval required to make certain financial commitments) Equant shall
grant to the Equant Project Executive full authority and




	 	 	 
	

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	 	 	power to make decisions with respect to actions to be taken by Equant in
the ordinary course of day-to-day management of this Agreement;
	 
	(b)	 	act as Equant’s primary liaison with the SITA SC Representative and with
the SITA INC Representative;
	 
	(c)	 	be granted direct access to Equant’s key decision makers; and
	 
	(d)	 	be provided by Equant with all the experience, expertise and resources of
Equant required in order fully to execute and perform the role,
responsibilities and duties of the Equant Project Executive.
	 
	20.3.	 	Co-operation



Equant shall co-operate with SITA SC and SITA INC by:



	(a)	 	making available, as reasonably requested by SITA SC and/or SITA INC,
management decisions, business information, approvals and acceptances to
assist SITA SC and/or SITA INC to accomplish its obligations and
responsibilities under this Agreement; and
	 
	(b)	 	providing the SITA SC Representative and SITA INC Representative
reasonable access to Equant’s senior management and technical personnel,
engineers, designers and equivalent personnel and to Equant’s Network
management records and information.
	 
	21.	 	AUDITS AND RECORD KEEPING
	 
	21.1.	 	SITA SC and SITA INC Audit Rights
	 
	(a)	 	SITA SC and SITA INC shall have the right to perform a multi-Country
audit of Equant no more frequently than once every twelve (12) months
during the Term. SITA SC and SITA INC may conduct such audits only for
the following purposes:




	 	(i)	 	to audit and inspect the use of any equipment or Software
licensed or leased to SITA SC or SITA INC by a third party and used
by or on behalf of Equant;
	 
	 	(ii)	 	to verify that the Services are being provided in accordance
with the Service Levels;
	 
	 	(iii)	 	to verify the validity of the Service Charges and
Pass-Through Expenses;
	 
	 	(iv)	 	to audit the validity and accuracy of the cost calculations
supporting the establishment of prices for Standard Cost Services;
	 
	 	(v)	 	to audit Recognisable Costs and Recognisable Cost Payments
and to audit Equant’s growth forecasts for all other sales channels
in respect of each situation or area in respect of which any
Recognisable Cost could be incurred.




	 	 	 
	

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	(b)	 	In addition, SITA SC and SITA INC may perform one audit in each Country,
and one audit at the central level, no more frequently than once every
three (3) months during the Term, but with no more than fifteen (15) such
audits during any consecutive three (3) month period. SITA SC and SITA
INC may conduct such audits only for the purpose of verifying the validity
of Pass Through Expenses (including those related to tail circuits).
	 
	(c)	 	In performing such audits, SITA SC and SITA INC must appoint Audit
Representatives to conduct such audits. SITA SC and SITA INC must obtain
from its Audit Representatives (both from the relevant accounting firm and
from the individuals actually performing such audits) a non-disclosure
agreement imposing the confidentiality obligations imposed on SITA SC and
SITA INC by clause 22 hereof in a form reasonably acceptable to Equant.
Such Audit Representatives must undertake such audits in a manner that
imposes the minimum disruption possible on Equant’s business, including by
(a) conducting such audits during normal business hours on Equant’s
premises, and (b) if SITA INC is Controlled by the SITA INC Foundation,
SITA SC and SITA INC conducting such audits at the same time. SITA SC and
SITA INC must give Equant reasonable prior written notice of such audits
(which shall normally be no less than thirty (30) days, unless otherwise
agreed in writing).
	 
	21.2.	 	Equant Audit Rights



Equant shall have the right to perform audits of SITA SC and SITA INC no more
frequently than once every twelve (12) months during the Term. Equant may
conduct audits only (a) to verify the financial ratios set out in clause 7 in
respect of SITA INC usage of Network Services provided by a provider other than
Equant and (b) to verify that any Exception Priced Services negotiated by Equant and
SITA SC and/or SITA INC is being applied only to the relevant
customer. In performing such audits, Equant must appoint Audit
Representatives to conduct such audits. Equant must obtain from its Audit
Representatives (both from the relevant accounting firm and from the
individuals actually performing such audits) a non-disclosure agreement
imposing the confidentiality obligations imposed on Equant by clause 22 hereof
in a form reasonably acceptable to SITA SC and SITA INC. Such Audit
Representatives must undertake such audits in a manner that imposes the minimum
disruption possible on SITA SC’s and/or SITA INC’s business, as applicable,
including by conducting such audits during normal business hours on SITA SC’s
and SITA INC’s premises. Equant must give SITA SC and/or SITA INC, as
applicable, reasonable prior written notice of such audits (which shall
normally be no less than thirty (30) days, unless otherwise agreed in writing).



	21.3.	 	Cooperation with Audit Representatives
	 
	(a)	 	Each Party will give the other Party’s Audit Representatives such access
to its facilities and records as is reasonably necessary to perform audits
in accordance with this clause 21 at all reasonable times and on
reasonable notice.
	 
	(b)	 	Each Party will co-operate with the Audit Representatives of the other
Party by giving reasonable access, at its own expense, to its management
and accounting personnel during normal business hours for such Audit
representatives efficiently to conduct their




	 	 	 
	

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	 	 	duties, including explanation of the relevant Party’s records systems and business procedures.
	 
	21.4.	 	Costs



Each Party conducting an audit will pay the professional fees, Pass-Through
Expenses, direct cost reimbursements and other disbursements involved in
retaining its own Audit Representatives. Each Party conducting an audit, or
being audited, will bear its own internal costs that are incurred in
conjunction with such an audit.



	22.	 	CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS
	 
	22.1.	 	Confidentiality of Agreement



Except as provided in clause 22.5, no Party shall disclose to any third Party, this Agreement, the Strategic Relationship
Umbrella Agreement, the Transition and Management Agreement or the Account
Management Agreement, or any of the terms and conditions or other provisions
contained in any of them (including any schedules or other attachments to any
of them) except:



	(a)	 	with the prior written consent of all of the other Parties;
	 
	(b)	 	only as required by applicable Law and then only to the extent required
by such Law; or
	 
	(c)	 	pursuant to procedures specified in this Agreement.
	 
	22.2.	 	Public Announcements



Except as provided under clause 22.5, no Party shall make any public
announcement with respect to this Agreement, the Strategic Relationship
Umbrella Agreement, the Transition and Management Agreement, or the Account
Management Agreement, or the strategic relationship of the Parties without the
prior Consent of all of the other Parties, provided that either Party (or, in
the case of SITA SC, a SITA Group Company) may name the other as a customer or
supplier, as applicable, and disclose the general nature of the overall
arrangement between the Parties under such agreements. A “public announcement”
under this clause 22.2 does not include internal communications within Equant
(including Network Staff) and SITA SC (or the applicable SITA Group Company) and/or SITA INC.



	22.3.	 	Protection of Confidential Information



Except as provided under clause 22.5, each Party shall, and shall cause its
Affiliates and its and its Affiliates’ respective directors, officers,
employees, contractors, consultants, advisors and agents to:



	 	 	 
	

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	(a)	 	keep confidential all Confidential Information given by one Party (the
‘Disclosing Party’) to another Party (the ‘Recipient’) or otherwise
obtained pursuant to this Agreement by the Recipient, using at least the
same level of care that the Recipient uses or affords to its own
Confidential Information but in no event less than a reasonable degree of
care, including maintaining reasonable security practices against any
unauthorised copying, use, disclosure, access, damage or destruction of
the Confidential Information;
	 
	(b)	 	not (except as expressly permitted) disclose any of the Confidential
Information, make copies of material containing the Confidential
Information or otherwise use the Confidential Information except as
permitted under clause 22.4;
	 
	(c)	 	safeguard the Confidential Information and comply with any requirements
specified by the Disclosing Party from time to time;
	 
	(d)	 	promptly notify the Disclosing Party if the Recipient reasonably
believes or knows of any unauthorised access, copying, use or disclosure
in any form or if the Recipient is required by Law to disclose any of the
Disclosing Party’s Confidential Information;
	 
	(e)	 	take all reasonable steps to enforce any obligation of confidence imposed
or required to be imposed by this Agreement; and
	 
	(f)	 	give all reasonable assistance (including, if necessary, the execution of
appropriate documents to assist the Disclosing Party to pursue any legal
actions) reasonably required by the Disclosing Party to enforce any
obligation of confidence imposed or required to be imposed by this
Agreement.
	 
	22.4.	 	Use of Confidential Information
	 
	(a)	 	Except to the extent expressly provided otherwise in this Agreement and
Schedule W of this Agreement, the Recipient may only use and copy the
Disclosing Party’s Confidential Information to the extent necessary:




	 	(i)	 	to comply with its obligations under this Agreement;
	 
	 	(ii)	 	to enable the Recipient to exercise its rights under this
Agreement, including obtaining any intended benefits under this
Agreement; or
	 
	 	(iii)	 	to enable the Recipient to comply with any applicable Law.




	(b)	 	Except to the extent expressly provided otherwise in this Agreement and
Schedule W of this Agreement, the Recipient shall limit distribution of
the Disclosing Party’s Confidential Information solely on a need to know
basis to (1) individuals within its organisation (including only its
employees, directors and officers, and in the case of Equant, Network
Staff who are bound by nondisclosure agreements pursuant to the Transition
and Management Agreement) and (2) the Recipient’s professional advisors,




	 	 	 
	

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	 	 	contractors, Affiliates or business partners who are bound by
obligations of confidentiality covering the Disclosing Party’s
Confidential Information disclosed to them that are no less
protective than the terms and conditions of this clause 22.
	 
	22.5.	 	Exceptions to Obligations of Confidentiality



The burden of proving the existence of an exception to the confidentiality
obligations set out in this clause 22.5 shall always be on the Party seeking to
avail itself of such exception, including in dispute resolution or court
proceedings brought by the Disclosing Party, including where arbitration or
court procedural rules would otherwise impose the burden of proof on the
Disclosing Party. Nothing in this Agreement prohibits the use or disclosure by
the Recipient of any particular Confidential Information of the Disclosing
Party by a Party to the extent that:



	(a)	 	the information has become generally available public knowledge other
than due to a violation of this Agreement;
	 
	(b)	 	based on the written advice of such Party’s legal counsel, the disclosure
is expressly required by Law, but in the event of any such proposed
disclosure, such Party required to make such disclosure shall give the
Disclosing Party reasonable advance written notice of the disclosure,
including specifying the Confidential Information to be disclosed, the
content of such disclosure (as it relates to such Confidential Information) and the circumstances
necessitating such disclosure. The Recipient will reasonably cooperate
with the Disclosing Party in order to minimise the amount of Confidential
Information disclosed under this clause 22.5 and, if requested by the
Disclosing Party, the Recipient will seek measures protecting such
disclosure and protecting against further disclosure or any misuse or
misappropriation of such Confidential Information;
	 
	(c)	 	the information has been independently developed by the Party without
reference to the Confidential Information of the Disclosing Party;
	 
	(d)	 	the information has been lawfully obtained by the Party from a third
party source under no obligation of confidentiality to the Disclosing
Party, provided that such third party source itself lawfully obtained the
Confidential Information; or
	 
	(e)	 	the Disclosing Party has approved in writing the particular use or
disclosure of the Confidential Information.
	 
	22.6.	 	Equitable Relief



The Parties acknowledge that the Disclosing Party will be entitled to
equitable relief or appropriate court order(s) against the Recipient (in
addition to any other rights available under this Agreement or at Law) from any
court of competent jurisdiction for any breach or threatened breach by the
Recipient of its obligations under this clause 22.



	22.7.	 	Period of Confidentiality



Each Party’s obligations with respect to Confidential Information disclosed
under this Agreement will survive for five (5) years after the date of expiry
or termination of this Agreement.



	 	 	 
	

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	23.	 	INTELLECTUAL PROPERTY RIGHTS



Intellectual Property Rights between the Parties are set out in Schedule W
(‘Intellectual Property Rights’).



	24.	 	WARRANTIES
	 
	24.1.	 	Representations and Warranties by Equant



Equant represents and warrants at all relevant times that:



	(a)	 	Equant will perform the Services in a professional and diligent manner,
in accordance with generally accepted industry standards;
	 
	(b)	 	Equant will commit sufficient resources and suitably qualified, trained
and experienced personnel to the performance of this Agreement;
	 
	(c)	 	Equant will perform its obligations under this Agreement with promptness
and diligence;
	 
	(d)	 	Equant’s signing, delivery and performance of this Agreement will not:




	 	(i)	 	violate any relevant judgement, order or decree; or
	 
	 	(ii)	 	violate, breach, constitute a default under, or result in the
termination, cancellation or acceleration (whether after the giving
of notice, lapse of time, or both) of, any material contract (A) by
which Equant is bound or (B) under which a charge, pledge or lien is
created over any of the assets (whether tangible or intangible)
owned by Equant;




	(e)	 	Equant has the requisite power and authority to enter into this Agreement
and to carry out its obligations as contemplated by this Agreement;
	 
	(f)	 	Equant shall use commercially reasonable efforts to perform its
obligations under this Agreement in compliance with all applicable Laws,
enactments, orders, regulations and other similar instruments; and
	 
	(g)	 	Equant shall not permit, allow or cause any encumbrance to be created or
arise over (i) any assets primarily used in connection with the provision
of the Services to the SITA Group Companies or their customers, other than
loans or financings entered into in the ordinary course of Equant’s
business; (ii) assets funded by SITA SC pursuant to clause 5.3, or (iii) any
Intellectual Property Rights owned or leased by SITA SC or any SITA Group
Company, or licensed to Equant pursuant to this Agreement.
	 
	24.2.	 	Representations and Warranties by SITA SC



SITA SC represents and warrants at all relevant times that:



	 	 	 
	

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	(a)	 	Those SITA SC personnel working in connection with this Agreement will be
suitably qualified, trained and experienced for the performance of SITA
SC’s obligations under this Agreement;
	 
	(b)	 	SITA SC will perform its obligations under this Agreement with promptness
and diligence;
	 
	(c)	 	SITA SC’s signing, delivery and performance of this Agreement will not:




	 	(i)	 	violate any relevant judgement, order or decree; or
	 
	 	(ii)	 	violate, breach, constitute a default under, or result in the
termination, cancellation or acceleration (whether after the giving
of notice, lapse of time, or both) of, any material contract (A) by
which SITA SC is bound or (B) under which a charge, pledge or lien
is created over any of the assets (whether tangible or intangible)
owned by SITA SC;




	(d)	 	SITA SC has the requisite power and authority to enter into this
Agreement and to carry out its obligations as contemplated by this
Agreement; and
	 
	(e)	 	SITA SC shall use commercially reasonable efforts to perform its
obligations under this Agreement in compliance with all applicable Laws,
enactments, orders, regulations and other similar instruments.
	 
	24.3.	 	Representations and Warranties by SITA INC



SITA INC represents and warrants that at all relevant times:



	(a)	 	those SITA INC personnel working in connection with this Agreement will
be suitably qualified, trained and experienced for the performance of SITA
INC’s obligations under this Agreement;
	 
	(b)	 	SITA INC will perform its obligations under this Agreement with
promptness and diligence;
	 
	(c)	 	SITA INC’s signing, delivery and performance of this Agreement will not:




	 	(i)	 	violate any relevant judgement, order or decree; or
	 
	 	(ii)	 	violate, breach, constitute a default under, or result in the
termination, cancellation or acceleration (whether after the giving
of notice, lapse of time, or both) of, any material contract (A) by
which SITA INC is bound or (B) under which a charge, pledge or lien
is created over any of the assets (whether tangible or intangible)
owned by SITA INC;




	 	 	 
	

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	(d)	 	SITA INC has the requisite power and authority to enter into this
Agreement and to carry out its obligations as contemplated by this
Agreement; and
	 
	(e)	 	SITA INC shall use commercially reasonable efforts to perform its
obligations under this Agreement in compliance with all applicable Laws,
enactments, orders, regulations and other similar instruments.
	 
	24.4.	 	No Additional Representations and Warranties



Except as otherwise provided for in this Agreement, there are no express or
implied warranties, representations, undertakings, or conditions (statutory or
otherwise) given by Equant or SITA SC or SITA INC, including the implied
warranties of satisfactory performance and fitness for a particular purpose.
Nothing in this clause 24.4 shall purport to limit any Party’s liability for
fraudulent misrepresentation.



	25.	 	INDEMNITIES
	 
	25.1.	 	Indemnity by Equant



Equant shall indemnify, defend and hold harmless SITA SC, the SITA Group
Companies and SITA INC and officers, directors, employees, consultants,
contractors, agents, successors and assigns of each of them, from any and all
Losses arising from, or in connection with, any of the following:



	(a)	 	 
	 
	(b)	 	any wilful or deliberate serious and significant breach of Equant; and
	 
	(c)	 	except for Claims for which this Agreement provides that SITA SC and/or
SITA INC (as applicable) is to indemnify Equant, any Claim made by a third
party (including by a third party (including a customer of Equant) against
SITA SC and/or SITA INC (as applicable) arising out of the marketing,
offering, provision or delivery (as applicable) by Equant of the Network
Services. To the extent that the Claim brought by such third party is
determined to arise out of any breach or other actionable cause by SITA SC
and/or SITA INC against Equant under this Agreement, nothing in this
clause 25.1(c) shall preclude Equant from directly seeking damages from
SITA SC and/or SITA INC (as applicable) in such regard subject to the
terms and conditions of this Agreement.
	 
	25.2.	 	Indemnity by SITA SC



SITA SC shall indemnify, defend and hold harmless Equant and its officers,
directors, employees, consultants, contractors, agents, successors and assigns,
from any and all Losses arising from, or in connection with, any of the
following:



	 	 	 
	

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	(a)	 	 
	 
	(b)	 	any wilful or deliberate serious and significant breach by SITA SC; and
	 
	(c)	 	except for Claims for which this Agreement provides that Equant is to
indemnify SITA SC, any Claim made by a third party (including a customer
of SITA SC or any SITA Group Company, as applicable) against Equant
arising out of the marketing, offering, provision or delivery (as
applicable) by SITA SC and/or any SITA Group Company (as applicable) of
the Network Services. To the extent that the Claim brought by such third
party is determined to arise out of any breach or other actionable cause
by Equant against SITA SC under this Agreement, nothing in this clause
25.2(c) shall preclude SITA SC from directly seeking damages from Equant
in such regard subject to the terms and conditions of this Agreement.
	 
	25.3.	 	Indemnity by SITA INC



SITA INC shall indemnify, defend and hold harmless Equant and its officers,
directors, employees, consultants, contractors, agents, successors, and
assigns, from any and all Losses arising from, or in connection with any of the
following:



	(a)	 	any wilful or deliberate serious and significant breach by SITA INC; and
	 
	(b)	 	except for Claims for which this Agreement provides that Equant is to
indemnify SITA INC, any Claim made by a third party (including a customer
of SITA INC) against Equant by a third party (including the customers of
SITA INC) arising out of the marketing, offering, provision or delivery
(as applicable) by SITA INC of the Network Services. To the extent that
the Claim brought by such third party is determined to arise out of any
breach or other actionable cause by SITA INC against Equant under this
Agreement, nothing in this clause 25.3(b) shall preclude SITA INC from
directly seeking damages from Equant in such regard subject to the terms
and conditions of this Agreement.
	 






	 	 	 
	

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	25.4.	 	Indemnification Procedures



Where this Agreement provides that a Party (the ‘Indemnitor’) is to indemnify,
defend or hold harmless (as applicable) the other Party (or, in the case of
SITA SC, the applicable SITA Group Company) (the ‘Indemnitee’) against a Claim
(other than with respect to a Claim that involves Taxes or a Claim initiated by
a Party hereto), the procedures set forth below shall apply. A failure of the
Indemnitee to follow such procedures shall not affect the Indemnitor’s
obligations under this Agreement; provided that the Indemnitor will be excused
from its obligations under this clause 25.4 to the extent that the Indemnitee’s
failure materially prejudices the Indemnitor’s ability to defend or settle the
Claim.



	(a)	 	The Indemnitee shall notify the Indemnitor in writing and in reasonable
detail of a Claim promptly following receipt by the Indemnitee of notice
of such Claim. The Indemnitor will reimburse the Indemnitee for the
reasonable fees and expenses of the Indemnitee’s counsel for the period
between the Indemnitee’s receipt of notice of the Claim until the time, if
any, that the Indemnitor assumes control of the defence of such Claim
pursuant to clause 25.4(c). As far as reasonably practicable, the
Indemnitee will also give the Indemnitor prompt notice of any event which
it reasonably believes is likely to give rise to a Claim which the
Indemnitor would be obligated to indemnify under this Agreement
	 
	(b)	 	The Indemnitee shall deliver to the Indemnitor promptly following the
Indemnitee’s receipt thereof copies of all notices received by the
Indemnitee relating to such Claim.
	 
	(c)	 	If the Indemnitor notifies the Indemnitee within a reasonable time that
the Indemnitor is assuming the defence of the Claim at the Indemnitor’s
expense, the Indemnitee agrees that (i) the Indemnitor will have the
exclusive right to defend, investigate, litigate, compromise and settle
the Claim (including the selection of attorneys); (ii) the Indemnitor may
make any settlement or compromise of any Claim that only involves the
payment of money without any requirement to seek Consent from the
Indemnitee. The Indemnitor shall make no settlement or compromise of a
Claim that could directly or indirectly adversely impact the Indemnitee in
any way (including by way of example an admission of liability or a
promise of future conduct or of the avoidance of certain conduct), without
the Indemnitee’s prior Consent.
	 
	(d)	 	If the Indemnitor assumes the defence of the Claim under clause 25.4(c),
the Indemnitee shall, at the request of the Indemnitor, provide the
Indemnitor with all reasonable assistance and co-operation for the purpose
of contesting any Claim brought against the Indemnitee. The Indemnitor
shall promptly reimburse the Indemnitee for the Indemnitee’s reasonable
costs of providing such assistance and co-operation.
	 
	(e)	 	If the Indemnitor does not assume the defence of a Claim under clause
25.4(c) within a reasonable time after the Indemnitee has notified the
Indemnitor of a Claim under clause 25.4(c), the Indemnitor shall have the
right to defend, investigate, litigate, compromise or settle such Claim on
behalf of, and for the account of, the Indemnitor if it sends a further
written notice to Indemnitor’s General Counsel that it intends to do so
and the Indemnitor




	 	 	 
	

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	 	 	does not notify the Indemnitee that the Indemnitor is assuming the defence of
the Claim under clause 25.4(c) within ten (10) days. Except where the
Indemnitee retains the defence of the Claim under the preceding sentence,
the Indemnitee shall not make any admission with respect to, or agree to
settle or compromise, any Claim or take any other action which may be
prejudicial to the defence or settlement of any Claim, without the
Indemnitor’s prior Consent after disclosure to the Indemnitor of the
relevant circumstances.
	 
	26.	 	LIABILITY AND LIMITATION OF LIABILITY
	 
	26.1.	 	Damages



A breaching Party shall be liable to a non-breaching Party only for any direct
loss incurred by the non-breaching Party as a result of the breaching Party’s
failure to perform its obligations in accordance with this Agreement. For the
avoidance of doubt, neither Party shall be liable for indirect or consequential
loss or damage. Direct loss shall not include any of the following:



	(a)	 	loss of profits, loss of over recovery, loss of business, loss of
revenues, loss of goodwill or loss of or failure to make any anticipated
savings;
	 
	(b)	 	any losses arising in connection with any claims or other demands brought
against a non-breaching Party by any third party pursuant to any
commitment to such third party by or on behalf of the non-breaching Party
and arising out of any breach of this Agreement; and/or
	 
	(c)	 	indirect or consequential loss or damage.
	 
	26.2.	 	Limitations of Liability
	 
	(a)	 	The Parties do not exclude or limit liability for:




	 	(i)	 	death or personal injury caused by negligence of a Party, or
its employees or sub-contractors;
	 
	 	(ii)	 	real and tangible property claims caused by the negligence of
a Party or its employees or sub-contractors;




	 	 	 
	

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	 	(iii)	 	any Claim for which a Party must indemnify another Party
pursuant to clause 25 of this Agreement;
	 
	 	(iv)	 	any Party’s failure to claim any invoiced amount validly
owing to another Party for its performance under this Agreement
(including amounts owed for Services rendered, and not including
claims of damages or other liabilities relating owing or alleged to
be owing due to a breach of this Agreement);
	 
	 	(v)	 	fraudulent misrepresentation;
	 
	 	(vi)	 	any breach of any obligations implied by Section 12 of the
Sale of Goods Act 1979 (to the extent not inconsistent with an
express warranty set out in this Agreement) or Section 20 of the
Supply of Goods and Services Act 1982;
	 
	 	(vii)	 	any Claim relating to infringement of Intellectual Property
Rights;
	 
	 	(viii)	 	any Claim relating to breach of a Party’s confidentiality
obligations as set out in clause 22 of this Agreement;
	 
	 	(ix)	 	to the extent a limitation is not permitted by Law; or
	 
	 	(x)	 	wilful or deliberate serious and significant breach.




	(b)	 	Subject to clause 26.2, the maximum liability of any Party for all Claims
arising under or in connection with this Agreement, regardless of the form
of action (whether in contract, tort or otherwise), shall in no event
exceed, in the aggregate, the total Service Charges (not including Pass
Through Expenses or other amounts reimbursed on a cost basis) payable by
the SITA Group Companies pursuant to this Agreement in respect of the
twelve (12) months immediately preceding the date on which the last Claim
arises (or, if a claim arises within the initial twelve (12) months after
the Effective Date, the total Service Charges payable by the SITA Group
Companies to Equant pursuant to this Agreement in respect of such initial
twelve (12) months following the Effective Date), reduced by any other
damages previously paid by such Party to the other Party under or in
connection with this Agreement.
	 
	(c)	 	On and after the date that SITA INC is no longer Controlled by the SITA
INC Foundation, the maximum liability of SITA INC or of any other Party in
respect of SITA INC for all Claims arising under or in connection with
this Agreement, regardless of the form of action (whether in contract,
tort or otherwise), shall in no event exceed, in the aggregate, the total
Service Charges (not including Pass Through Expenses or other amounts
reimbursed on a cost basis) payable by SITA INC pursuant to this Agreement
in respect of the twelve (12) months immediately preceding the date on
which the last Claim arises (or, if a Claim arises within the initial
twelve (12) months after the date that the SITA INC Foundation transferred
Control of SITA INC, the total Service Charges payable by the SITA INC to
Equant pursuant to this Agreement in respect of such initial twelve (12)
months following the date on which the SITA INC Foundation transferred
Control of SITA INC), reduced by any other damages previously paid by such
Party to the other Party under or in connection with this Agreement.




	 	 	 
	

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	(d)	 	If any Service Credits are paid in respect of any Service Level Default,
any damages payable for a direct loss under this clause 26 shall be
reduced by the amount of such Service Credits paid.
	 
	26.3.	 	Duty to Mitigate



Each Party shall have a duty to mitigate damages for which another Party is or
may be responsible.



	27.	 	TERMINATION
	 
	27.1.	 	Termination for Cause by SITA SC and/or SITA INC
	 
	(a)	 	SITA SC and/or SITA INC may at any time by notice in writing delivered
pursuant to clause 30.2 terminate this Agreement from the effective date
of such notice pursuant to clause 30.3 if Equant is in material breach of
this Agreement in respect of SITA SC and/or SITA INC, respectively, (it
being understood that a material breach shall include any repeated failure
of Equant to fulfil any obligations under this Agreement, which taken
together is material) and:




	 	(i)	 	if such breach is capable of remedy, Equant has failed to
remedy such breach within sixty (60) days from the effective date
pursuant to clause 30.3 of a written notice delivered to Equant
pursuant to clause 30.2 specifying the breach and requiring its
remedy; or
	 
	 	(ii)	 	the breach is not capable of remedy.




	(b)	 	If circumstances arise which entitle SITA SC and/or SITA INC to terminate
this Agreement pursuant to clause 27.1(a), SITA SC and/or SITA INC (as the
case may be) may at its option by delivering written notice to Equant
pursuant to clause 30.2 reduce the scope of both or either of:




	 	(i)	 	the Services to be supplied; and/or
	 
	 	(ii)	 	the Countries in which the Services are to be supplied;



hereunder by termination of all or any part of such of the Services and/or the
Countries in which the Services are to be supplied as are affected directly or
indirectly by Equant’s material breach. To the extent they are applicable, the
Parties shall comply with relevant provisions of clause 27.9 in respect of the
terminated Services.



	(c)	 	If SITA SC and/or SITA INC exercise their right set out under clause
27.1(b) and the Service Charges in respect of those Services and Countries
would otherwise have contributed to the payment of the Minimum Revenue
Commitment, the Minimum Revenue Commitment shall be reduced by the sum
equal to the Service Charges that would have been payable had SITA SC or
SITA INC not exercised their rights set out under clause 27.1(b).




	 	 	 
	

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	27.2.	 	Termination for Cause by Equant



Equant may by written notice delivered pursuant to clause 30.2 terminate this
Agreement with respect to either SITA SC and/or SITA INC if such Party is in
material breach of this Agreement (the ‘Defaulting SITA Party’) as from a date
twelve (12) months after the effective date of such notice pursuant to clause
30.3 (it being understood that a material breach shall include any repeated
failure of such Defaulting SITA Party to fulfill any obligations under this
Agreement, which taken together is material) and;



	(a)	 	if such breach is capable of remedy, the Defaulting SITA Party has failed
to remedy such breach within sixty (60) days from the effective date
pursuant to clause 30.3 of a written notice delivered to the Defaulting
SITA Party pursuant to clause 30.2 specifying the breach and requiring its
remedy;
	 
	(b)	 	the breach is not capable of remedy; or
	 
	(c)	 	if the Defaulting SITA Party has failed to pay any sums that:




	 	(i)	 	are alleged to be due and payable by either SITA SC and/or
SITA INC;
	 
	 	(ii)	 	have been invoiced in accordance with the provisions of
clause 18;
	 
	 	(iii)	 	are neither Disputed Amounts nor sums connected with
Disputed Information; and
	 
	 	(iv)	 	in aggregate equals or exceeds the total Service Charges
payable by such Defaulting SITA Party in respect of the three (3)
most recent Billing Periods immediately preceding the date of
Equant’s termination notice



within sixty (60) days following the effective date of a written notice
delivered pursuant to clause 30 identifying the amount(s) and invoice(s)
corresponding to such allegedly unpaid sum(s).



	27.3.	 	Termination for Insolvency
	 
	(a)	 	Without prejudice to any other rights or remedies it may have, a Party
may, by giving written notice to the other, terminate its participation in
this Agreement (as of a date specified in the notice of termination) if an
Insolvency Event has occurred in respect of another Party. An ‘Insolvency
Event’ means such Party being unable to pay its debts as they fall due or
the taking of any steps by such Party or any other person relating to any
of the following:




	 	(i)	 	the presentation of a petition for winding up of such Party,
petition in bankruptcy or similar proceeding seeking its
reorganisation liquidation, which petition is not dismissed within
twenty eight (28) days;
	 
	 	(ii)	 	such other Party being the subject of an order, or an
effective resolution is passed for winding up the company;




	 	 	 
	

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	 	(iii)	 	the application for an order or application for the
appointment of a receiver (including an administrative receiver),
administrator, trustee, liquidator or similar officer in respect of
such other Party, which application is not dismissed within
twenty-eight (28) days;
	 
	 	(iv)	 	an execution creditor, encumbrance, receiver (including an
administrative receiver) or other similar officer taking possessions
of the whole or any substantial part of such other Party’s property
or assets;
	 
	 	(v)	 	such other Party making a composition with its creditors
generally or making a general assignment for the benefit of its
creditors;
	 
	 	(vi)	 	the filing of a voluntary petition in bankruptcy or similar
proceeding seeking liquidation or the filing of a written admission
of its inability to pays its debts as they become due;
	 
	 	(vii)	 	filing a petition or answer seeking reorganisation or an
arrangement with creditors or taking advantage of any bankruptcy or
insolvency law;
	 
	 	(viii)	 	such other Party goes into liquidation ; and
	 
	 	 	 	such termination to take effect upon notice in writing to the other Party.




	27.4.	 	Termination for Change of Control
	 
	(a)	 	If Equant is the Affected Party, after following the procedures set out
in clause 8.4(a)(i) and clause 8.4(b) of the Strategic Relationship
Umbrella Agreement, then SITA SC may, not later than thirty (30) days
after the date that such Change of Control occurs or such longer period as
it takes to complete the escalation procedures set out in clause 8.4(b) of
the Strategic Relationship Umbrella Agreement, deliver a written notice to
France Telecom and Equant pursuant to clause 30.2 terminating this
Agreement as of a date no earlier than twelve (12) months after the
effective date of such notice pursuant to clause 30.3.
	 
	(b)	 	If SITA SC is the Affected Party, after following the procedures set out
in clause 8.4(a)(ii) and clause 8.4(b) of the Strategic Relationship
Umbrella Agreement, and if France Telecom exercises its rights under
clause 9.1(b) of the Strategic Relationship Umbrella Agreement, then Equant
shall, not later than thirty (30) days after the date that on which France
Telecom exercises such rights, deliver a written notice to SITA SC
pursuant to clause 30.2 terminating this Agreement and/or the Strategic
Relationship Umbrella Agreement as of a date no earlier than twelve (12)
months after the effective date of such notice pursuant to clause 30.3.
	 
	27.5.	 	Termination for Force Majeure
	 
	(a)	 	SITA SC or SITA INC may, if a delay or non-performance of all or part of
the Services due to a Force Majeure Event continues for more than ninety
(90) days, at its option:




	 	 	 
	

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	 	(i)	 	terminate the provision of those Services which are delayed
or not being performed due to the Force Majeure Event, in whole or
in part, with immediate effect upon a written notice delivered to
Equant pursuant to clause 30.2; or
	 
	 	(ii)	 	source substitute Services to replace the Services which are
delayed or not being performed due to the Force Majeure Event from a
provider other than Equant (or one of its Affiliates) designated by
SITA SC or SITA INC, as applicable, as the replacement supplier (the
‘Replacement Supplier’). The Parties will comply with clause 27.9
(to the extent applicable) with respect to the transfer and
assumption of the provision of such Services by the Replacement
Supplier.




	(b)	 	Notwithstanding any other provision of this Agreement, a Party which
exercises its rights under this clause 27.5 shall not be liable to Equant
for such action.
	 
	(c)	 	Notwithstanding any other provision of this Agreement, Equant shall not
be entitled to receive Service Charges or any other payment in respect of
Services that are delayed or not performed due to a Force Majeure Event if
such Services are not performed in accordance with the terms of this
Agreement. Any fixed charges in the Service Charges shall be adjusted
pro-rata to reflect the Services that are delayed or not performed due to
the Force Majeure Event.
	 
	(d)	 	If SITA SC or SITA INC agrees to accept Services that have been degraded
due to a Force Majeure Event, then the Parties shall negotiate the Service
Charges applicable to such degraded Services.
	 
	(e)	 	If the Force Majeure Event causes delay or non-performance of Services
and the Service Charges in respect of those Services would otherwise have
contributed to the payment of the Minimum Revenue Commitment, the Minimum
Revenue Commitment shall be reduced by the sum equal to the Service
Charges that would have been payable had the Force Majeure Event not
occurred.
	 
	27.6.	 	Accrued Rights



Termination of this Agreement will not affect any accrued rights of either Party.



	27.7.	 	Effect of Termination by a Party
	 
	(a)	 	At any time during which SITA INC is Controlled by the SITA INC
Foundation, a termination of this Agreement by SITA SC, SITA INC, or
Equant will act as a termination of this Agreement as a whole in respect
of all Parties.
	 
	(b)	 	If SITA INC is no longer Controlled by the SITA INC Foundation:




	 	(i)	 	a termination of this Agreement by SITA SC and/or Equant in
respect of each other will not act as a termination of this
Agreement in respect of SITA INC and Equant in respect of each
other, unless either SITA INC or Equant has also terminated this
Agreement in respect of each other; and




	 	 	 
	

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	 	(ii)	 	a termination of this Agreement by SITA INC and/or Equant in
respect of each other will not act as a termination of this
Agreement in respect of SITA SC and Equant in respect of each other,
unless either SITA SC or Equant has also terminated this Agreement
in respect of each other.




	(c)	 	In the event (a) either SITA SC and/or Equant delivers a notice of
termination to the other Party pursuant to clause 27, and (b) if the
notice of termination is pursuant to clause 27.1 or clause 27.2, the Party
in breach has not remedied such breach within the timeframe required by
clause 27.1(a)(i), clause 27.2(a) or clause 27.2(c) or such breach is not
capable of remedy, then (A) in all cases other than clause 27.2, promptly
after delivery of such notice of termination, Equant and SITA SC shall
negotiate in good faith appropriate amendment to the commercial
arrangements related to each Party’s provision of services under the
Transition and Management Agreement; it being understood that such
amendments to the Transition and Management Agreement will become
effective on the effective date of termination unless otherwise agreed by
the Parties; and (B) in the case of clause 27.2, then from the third
anniversary after the date of delivery of such notice of termination,
Equant and SITA SC shall negotiate in good faith appropriate amendments to
each Party’s provision of services under the Transition and Management
Agreement; it being understood that such amendments to the Transition and
Management Agreement shall become effective on the fourth anniversary of
the effective date of delivery of such notice of termination. The Party
receiving such services under the Transition and Management Agreement is
under no obligation to either continue receiving such services or to
continue receiving such services to the same extent as prior to the
delivery of such termination notice.
	 
	27.8.	 	Cross-Defaults
	 
	(a)	 	At any time during which SITA INC is Controlled by the SITA INC
Foundation:




	 	(i)	 	a material breach of this Agreement by Equant in respect of
either SITA SC or SITA INC will constitute a material breach of this
Agreement in respect of both SITA SC and SITA INC; and
	 
	 	(ii)	 	a material breach of this Agreement by either SITA SC or by
SITA INC will constitute a material breach of this Agreement by both
SITA SC and SITA INC.




	(b)	 	At any time during which SITA INC is no longer Controlled by the SITA INC
Foundation, a material breach of this Agreement by Equant:




	 	(i)	 	in respect of SITA SC will not constitute a material breach
of this Agreement in respect of SITA INC; and
	 
	 	(ii)	 	in respect of SITA INC will not constitute a material breach
of this Agreement in respect of SITA SC,



unless the breach by Equant is also a material breach of this Agreement by
Equant in respect of SITA INC in the case of clause 27.8(b)(i), and in respect
of SITA SC in the case of clause 27.8(b)(ii).



	 	 	 
	

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	(c)	 	Subject to clause 27.8(d), at any time during which SITA INC is no longer
Controlled by the SITA INC Foundation:




	 	(i)	 	a material breach of this Agreement by SITA SC in respect of
Equant will not constitute a material breach of this Agreement by
SITA INC; and
	 
	 	(ii)	 	a material breach of this Agreement by SITA INC in respect of
Equant will not constitute a material breach of this Agreement by
SITA SC.




	(d)	 	A breach of the financial ratio obligations set out in clause 7.3 shall
give rise to an option in Equant to terminate this Agreement in respect of
both SITA SC and SITA INC as provided in clause 7.3(f).
	 
	(e)	 	If Equant or SITA SC terminates this Agreement pursuant to:




	 	(i)	 	clause 27.3 (‘Termination for Insolvency’);
	 
	 	(ii)	 	clause 27.4 (‘Termination for Change of Control’); or
	 
	 	(iii)	 	clause 27.1 (‘Termination for Cause by SITA SC and SITA
INC’) with respect to SITA SC, or clause 27.2 (‘Termination for
Cause by Equant’) with respect to Equant, as a result of a material
breach of a material term which remains unremedied after delivery of
written notice to the breaching Party, provided that the full
dispute resolution procedures set out in clause 8.1 and clause 8.2
of the Strategic Relationship Umbrella Agreement are completed,



then the non-breaching Party shall have the right, at its option, to terminate
this Agreement and if it terminates this Agreement, such Party shall have the
right, at its option, to terminate the Strategic Relationship Umbrella
Agreement and to commence renegotiations of the Transition and Management
Agreement Agreement as contemplated by clause 27.7(c) of this Agreement.



	(f)	 	There are no cross-defaults except those explicitly stated in clause 27.8
of this Agreement or clause 9.2 of the Strategic Relationship Umbrella
Agreement. Except as stated above, the Parties acknowledge that neither
this Agreement, the Strategic Relationship Umbrella Agreement nor the Transition and Management
Agreement should be read or interpreted, either separately or together, as
implying any cross-defaults.
	 
	27.9.	 	Co-operation Upon Expiry or Termination
	 
	(a)	 	Upon the expiry or termination of this Agreement (in whole or in part),
Equant shall use commercially reasonable efforts and co-operate to
facilitate the orderly and efficient transfer to and assumption of the
Services by a Replacement Supplier for a period not to exceed six (6)
months (the ‘Termination Period’) such that the Services can be performed
with a minimum of interruption and inconvenience to SITA SC or SITA INC,
as applicable, provided that SITA SC and/or SITA INC, as appropriate has
paid all amounts then due to Equant under this Agreement (other than
amounts that are subject to a bona fide dispute and in respect of which
SITA SC and/or SITA INC has provided written notice of such dispute
pursuant to clause 18.5 hereof or has initiated the informal or




	 	 	 
	

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	 	 	formal dispute resolution procedure pursuant to clause 29). SITA SC
and/or SITA INC shall pay the Service Charges listed in the Price Books in
respect of Equant’s activities in providing such co-operation as follows:




	 	(i)	 	if Equant’s activity in providing such co-operation is
included in the Services, then SITA SC and/or SITA INC shall pay
only for Equant’s incremental activity (above the quantity of such
activities that is normally provided in respect of the Services);
provided, however, if SITA SC and/or SITA INC terminated this
Agreement due to a material breach by Equant, SITA SC and/or SITA
INC shall only be required to make payment for such termination
co-operation after determination through the dispute resolution
procedure of what amounts, if any, are payable by SITA SC and/or
SITA INC, in respect of such termination co-operation; and
	 
	 	(ii)	 	if the reason for termination of this Agreement is SITA SC’s
or SITA INC’s failure to pay Service Charges when due, Equant shall
have the right to demand payment in advance rather than in arrears
for its activity in providing such co-operation and for any
continuing Services required by SITA SC and/or SITA INC.




	(b)	 	If SITA SC or SITA INC, as applicable, has paid any Service Charges in
advance (other than as provided in clause 27.9(a)(ii)), then Equant shall
repay such Service Charges paid in advance (other than in respect of any
Services or reimbursement for termination co-operation (or part thereof)
properly performed in accordance with this Agreement), but SITA SC and/or
SITA INC, as applicable, may set off such advance payments as provided in
clause 18.8.
	 
	(c)	 	If SITA SC or SITA INC, as applicable, has advanced any funding for
development and/or production of any SITA Specific Product/Service that
have not yet been completed, then:




	 	(i)	 	Equant will provide a written notice to SITA SC and/or SITA
INC, as applicable, advising whether Equant is able to complete such
SITA Specific Product/Service before the end of the period during
which termination co-operation is expected to be provided;
	 
	 	(ii)	 	SITA SC and/or SITA INC will provide a written notice to
Equant directing it either to complete development and/or production
of such SITA Specific Product/Service or to discontinue development
thereof;
	 
	 	(iii)	 	if SITA SC and/or SITA INC directs Equant to complete
development and/or production of such SITA Specific Product/Service,
then Equant shall do so in accordance with clause 4.3;
	 
	 	(iv)	 	if SITA SC and/or SITA INC directs Equant to discontinue
development and/or production of such SITA Specific Product/Service,
then Equant shall promptly (a) provide to SITA SC and/or SITA INC
such materials as relates to such SITA Specific Products/Services in
whatever state of development they are in as at that




	 	 	 
	

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	 	 	 	date; (b) return all unexpended funding that SITA SC and/or SITA
INC had provided in respect of the development and/or production
of such SITA Specific Product/Service; and (c) provide evidence
that Equant prudently spent such development funds; and
	 
	 	(v)	 	if SITA SC and/or SITA INC, as applicable, considers that
Equant had not prudently spent such development funds, then it may
initiate the dispute resolution procedure pursuant to clause 29 to
recover any such development funds that Equant did not prudently
expend.




	(d)	 	If SITA SC and/or SITA INC, as applicable, has advanced any funding for
expansion or modification to the Network (including the acquisition of
Network assets) that has not yet been completed, then:




	 	(i)	 	Equant will provide a written notice to SITA SC and/or SITA
INC, as applicable, advising whether Equant can complete such
expansion or modification before the end of the period during which
termination co-operation is expected to be provided;
	 
	 	(ii)	 	SITA SC and/or SITA INC will provide a written notice to
Equant directing Equant either to complete such expansion or
modification and, if applicable, integrate or interconnect such
expansion or modification into the third party network as requested
by SITA SC and/or SITA INC (as permitted by the third party
concerned), or to discontinue such activity;
	 
	 	(iii)	 	if SITA SC and/or SITA INC directs Equant to discontinue
activities pursuant to clause 27.9(d)(ii), then Equant shall
promptly (a) deliver to SITA SC and/or SITA INC at a location
designated by SITA SC and/or SITA INC in the Country in which such
expansion or modification was to be located (or to such other
location as the relevant Parties may agree) all equipment, assets
and Software that it had acquired to support such expansion or
modification; (b) provide to SITA SC and/or SITA INC all relevant
plans and drawings that Equant had prepared in respect of such
expansion or modification; (c) return all unexpended funding that
SITA SC and/or SITA INC had provided in respect of expansion or
modification; and (d) provide evidence that Equant prudently spent
such funds; and
	 
	 	(iv)	 	if SITA SC and/or SITA INC, as applicable, considers that
Equant had not prudently spent such funds, then it may initiate the
dispute resolution procedure pursuant to clause 29 to recover any
such funds that Equant did not prudently expend.




	(e)	 	SITA SC or SITA INC, as applicable, shall have the option to purchase at
net book value any equipment owned by Equant and which is used exclusively
by Equant for the purpose of providing the Services to the SITA Group
Companies, SITA INC or their respective customers.




	 	 	 
	

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	(f)	 	If requested by SITA SC and/or SITA INC, Equant shall use commercially
reasonable efforts to procure the assignment or novation in favour of SITA
SC or SITA INC, as applicable, or a Replacement Supplier (if designated by
SITA SC or SITA INC, as applicable):




	 	(i)	 	equipment leases relating to any equipment which is used
exclusively by Equant for the purpose of providing the Services to
the SITA Group Companies, SITA INC or their respective customers;
and
	 
	 	(ii)	 	maintenance agreements, support agreements or other
arrangements between Equant and third parties which relate to
equipment or services which is used exclusively by Equant for the
purpose of providing the Services to the SITA Group Companies, SITA
INC, or their respective customers;




	 	 	SITA SC, SITA INC, or the Replacement Supplier shall be responsible for
the cost of any required consents or assignment or novation fees in
respect of such assignments or novations. Equant will use commercially
reasonable efforts to minimise the occurrence of such required consent,
assignment or novation fees and the amount of such fees should they be
unavoidable.
	 
	(g)	 	If requested by SITA SC and/or SITA INC, Equant shall use commercially
reasonable efforts to procure the assignment or novation in favour of SITA
SC or SITA INC, as applicable, or a Replacement Supplier (if designated by
SITA SC or SITA INC, as applicable), of any license or maintenance
agreement relating to Third Party Software that relates to equipment or
services which is used exclusively by Equant for providing the Services to
the SITA Group Companies, SITA INC, and their respective customers. SITA
SC, SITA INC, or the Replacement Supplier shall be responsible for the
cost of any required consents or assignment or novation fees in respect of
such assignments or novations. Equant will use commercially reasonable
efforts to minimise the occurrence of such required consent, assignment or
novation fees and the amount of such fees should they be unavoidable.
	 
	(h)	 	Each Party in receipt of Confidential Information from another Party
shall comply with the directions of the owner of such Confidential
Information in respect of the return thereof, the destruction thereof, or
the transfer thereof to a third party. Each Party shall warrant in
writing that no copies of such Confidential Information owned by another
Party have been retained.
	 
	28.	 	FORCE MAJEURE
	 
	28.1.	 	Neither Party Liable



Neither SITA SC nor SITA INC nor Equant will be liable for any default or delay
in performance of its obligations under this Agreement if, and to the extent,
the default or delay is caused, directly or indirectly, by a Force Majeure
Event.



	 	 	 
	

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	28.2.	 	Period of Delay



When a Force Majeure Event has occurred, the non-performing Party will be
excused from further performance of the obligations affected for as long as the
circumstances prevail and the non-performing Party continues to use all
commercially reasonable endeavours to recommence performance whenever and to
whatever extent possible without delay. Any non-performing Party will promptly
notify the Party to whom performance is due and describe at a reasonable level
of detail the circumstances causing such delay and the expected duration
thereof. The non-performing Party will ensure that the affected Party is
treated equally with any third parties (including the non-performing Party’s
Affiliates) in respect of similar services that are provided during a Force
Majeure Event.



	29.	 	DISPUTE RESOLUTION
	 
	29.1.	 	Dispute Resolution Procedure



Any dispute between the Parties arising out of or relating to this Agreement,
including with respect to the interpretation of any provision of this Agreement
and with respect to the performance by either Party shall be resolved using the
dispute resolution procedures specified in the Strategic Relationship Umbrella
Agreement, which are hereby incorporated by reference into this Agreement.



	29.2.	 	Continued Performance



SITA SC and Equant shall continue to perform their respective obligations under
this Agreement pending the resolution of a dispute, including a dispute in
respect of a Party’s right to terminate this Agreement, provided that nothing
in this clause prevents or restricts a Party from lawfully exercising any of
its rights pursuant to clause 27 at any time.



	30.	 	GENERAL
	 
	30.1.	 	Governing Law



The construction, performance, validity and remedies for breach of this
Agreement shall be governed by English law.



	30.2.	 	Notices



A Party notifying or giving notice under this Agreement will give notice:



	(a)	 	in writing and in the English language;
	 
	(b)	 	by (i) hand delivery to or sent by prepaid first class post, (ii) air
courier delivery service to that address, or (iii) electronic mail or
facsimile (only if confirmed by telephone); and
	 
	(c)	 	addressed to all other Parties to the attention of the designated
person(s) set out below or as altered by notice given in accordance with
this clause:





	 	 	 
	

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	For SITA SC:	 	
Secretary General

Société Internationale de Télécommunications Aéronautiques S.C.

26, Chemin de Joinville

P.O. Box 31

1216 Cointrin – Geneva

Switzerland
	 
	 	 	
Copy to:

General Counsel

26, Chemin de Joinville

P.O. Box 31

1216 Cointrin – Geneva

Switzerland
	 
	For SITA INC:	 	
Corporate Secretary

SITA Information Networking Computing N.V.

Heathrow Staat 10

1043 CH Amersterdam

The Netherlands
	 
	 	 	
Copy to:

General Counsel

SITA Information Networking Computing N.V.

26, Chemin de Joinville

P.O. Box 31

1216 Cointrin – Geneva

Switzerland
	 
	For Equant:	 	
Vice President and General Manager SITA Account

Equant N.V.

400 Galleria Parkway, S.E.

Atlanta GA 30339-5980

United States of America
	 
	 	 	
Copy to:

General Counsel

Equant N.V.

12490 Sunrise Valley Drive

Reston VA 20196

United States of America








	 	 	 
	

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	(d)	 	Unless SITA INC is no longer Controlled by the SITA INC Foundation,
Equant must provide any notice given by Equant to SITA INC to both SITA SC
and to SITA INC at the same time as provided in clause 30.2(c).
	 
	30.3.	 	Service of Notice



A notice given in accordance with clause 30.2 is deemed received and is
effective:



	(a)	 	if hand delivered to another Party’s address, on the date of delivery;
	 
	(b)	 	if sent by prepaid first class post, five (5) Business Days after the
date of posting; or
	 
	(c)	 	if sent by courier delivery service, on the date of delivery.



Except for notices sent by facsimile, in each instance the Party delivering
such notice shall for the convenience of the Party or Parties to which such
notice is delivered also transmit such notice by facsimile; provided, however,
that the failure to do so shall not affect either the fact or the date and time
of delivery of such notice.



	30.4.	 	Relationship of Parties
	 
	(a)	 	Nothing in this Agreement or any circumstances associated with it or its
performance shall give rise to any relationship of agency, partnership or
employer and employee between the Parties and another Party’s agents,
employees or sub-contractors.
	 
	(b)	 	Except as expressly provided in this Agreement, none of the Parties shall
have any authority to act or make representations on behalf of any of the
other Parties, nor to create contractual liability to a third party on
behalf of (or otherwise contractually bind) any of the other Parties.
	 
	30.5.	 	Waiver
	 
	(a)	 	If a Party has a right arising from another Party’s failure to comply
with an obligation under this Agreement, and delays in exercising or does
not exercise that right, then that delay in exercising or failure to
exercise is not a waiver of that right or any other right.
	 
	(b)	 	A waiver by a Party of a right in one instance does not constitute a
waiver of that right or any other right in any other instance, without
regard to the similarity of circumstances, unless the Party specifically
waives such right or other right in the second instance.
	 
	(c)	 	Any waiver of a right by a Party must be in writing in a notice
transmitted as provided in clause 30.2 executed by the Party making such
waiver.
	 
	30.6.	 	Entire Agreement and Variation
	 
	(a)	 	This Agreement, the Strategic Relationship Umbrella Agreement, the
Transition and Management Agreement and the Account Management Agreement
form the strategic relationship among the Parties and:




	 	 	 
	

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	 	(i)	 	constitute the entire agreement between the Parties as to the
strategic relationship and this transaction; and
	 
	 	(ii)	 	the foregoing agreements replace and supersede any prior
understanding or agreement between the Parties in respect of the
strategic relationship and this transaction and any prior draft,
statement, undertaking, agreement, understanding, condition,
warranty, indemnity or representation imposed, given or made by a
Party (including the JV Agreement and the HOA) prior to the
Effective Date (collectively, the ‘Pre-Contractual Statements’) and
no Party shall have any claim or right of action in respect of the
Pre-Contractual Statements except in respect of fraudulent
misrepresentation. For the avoidance of doubt, no Pre-Contractual
Statement may be used in the interpretation or construction of this
Agreement.




	(b)	 	This Agreement may only be amended in writing when signed by Parties
concerned with each particular amendment.
	 
	(c)	 	Nothing in this clause 30.6 purports to exclude any Party’s liability for
fraudulent misrepresentation.
	 
	30.7.	 	Priority of Documents



If there is any conflict between any of the express terms of this document or
the Schedules (other than Schedule T (Operations Manual Requirements)) and the
terms of Schedule T (Operations Manual Requirements), then the terms of this
document and/or the Schedules (other than Schedule T (Operations Manual
Requirements) shall prevail.



	30.8.	 	Use of Resources



Except in respect of SITA Specific Products/Services and expansions or
modifications to the Network funded by SITA SC and/or SITA INC, or as otherwise
expressly provided in this Agreement, nothing in this Agreement implies a right
in SITA SC and/or SITA INC for the exclusive use of the Network, Generic
Products/Services, personnel or other resources that Equant uses to provide the
Services to the SITA Group Companies, SITA INC or their respective customers.



	30.9.	 	Limitations Period



Unless applicable Law forbids contractual waiver or limitation, neither Equant,
nor SITA SC nor SITA INC may bring a legal action or initiate the dispute
resolution procedure under this Agreement:



	(a)	 	in the case of Claims arising directly between the Parties that are not
based upon a third-party Claim against a Party, more than two (2) years
after the cause of action came to the actual knowledge of the Party; or
	 
	(b)	 	in the case of a third-party Claim asserted against a Party, more than
two (2) years after the third-party concerned has successfully asserted
such Claim against the relevant Party.




	 	 	 
	

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	30.10.	 	Third Party Beneficiaries
	 
	(a)	 	Nothing in this Agreement, express or implied, is intended to confer upon
any person other than Equant, SITA SC, and SITA INC, or their respective
successors or permitted assignees any rights or remedies under or by
reason of this Agreement.
	 
	(b)	 	The Parties do not intend that any term of this Agreement should be
enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999
by any person who is not a Party to this Agreement.
	 
	30.11.	 	Assignment
	 
	(a)	 	A Party may not assign its rights or transfer its obligations under this
Agreement without the prior written consent of the other Party except
that:




	 	(i)	 	no consent is required in the case of assignment by a Party
to one of its majority owned subsidiaries;
	 
	 	(ii)	 	no consent is required for Equant to assign its rights and
transfer its obligations under this Agreement to the successor
entity of the merger of Equant and Global One.




	(b)	 	Following a Change of Control of Equant or SITA SC, as applicable, if the
relevant Party has (i) determined not to exercise its right to terminate
this Agreement pursuant to clause 27.4; or (ii) has not given notice of
termination of this Agreement within the period set out in clause 27.4,
the Affected Party may assign this Agreement to the entity acquiring all
or substantially all of the assets of the Affected Party (as described in
clause (a) of the definition ‘Change of Control’).
	 
	(c)	 	Any attempt by a Party to assign its rights or transfer its obligations
under this Agreement in violation of clause 30.11(a) or clause 30.11(b) is
null and void.
	 
	(d)	 	This right is without prejudice to either Party’s right to terminate the
Agreement in accordance with clause 27.
	 
	30.12.	 	Counterparts



This Agreement may be executed in several counterparts, each of which shall be
deemed an original and all of which taken together will constitute one single
agreement between the Parties.



	30.13.	 	Cumulative Rights



A right, power, remedy, entitlement or privilege given or granted to a Party
under this Agreement is cumulative with, without prejudice to and not exclusive
of any other right, power, remedy, entitlement or privilege granted or given
under this Agreement or by Law.



	 	 	 
	

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	30.14.	 	Reading Down



If a provision of this Agreement is reasonably capable of an interpretation
which would make that provision valid and enforceable and an alternative
interpretation that would make it unenforceable, illegal, invalid or void then,
so far as is possible, that provision will be interpreted or construed, taking
into account (i) the objectives, scope and purposes set out in clause 2 of the
Strategic Relationship Umbrella Agreement; and (ii) the fact that the
commercial intentions of this Agreement are based on symmetry and balance among
the Parties, to be limited and read down to the extent necessary to make it
valid and enforceable.



	30.15	 	Severability



If any provision is deemed invalid, illegal or unenforceable, then the
remainder of this Agreement shall stand; provided, however, that the Parties
shall negotiate in good faith to adjust the terms of this Agreement to ensure
that the Parties original commercial intentions are achieved as much as
reasonably possible. The commercial intentions of this Agreement are based on
symmetry and balance between the Parties.



	30.16.	 	Contra Proferentem



No rule of construction will apply in the interpretation of this Agreement to
the disadvantage of one Party on the basis that such Party put forward or
drafted this Agreement or any provision of this Agreement.



	30.17.	 	Costs



Each Party shall bear its own legal and other costs and expenses of, and
incidental to, the preparation, execution and completion of this Agreement and
of any related documentation.



	30.18.	 	Survival of Terms



The following terms will survive the termination or expiry of this Agreement:



	(a)	 	clause 22 (Confidentiality; Public Announcements);
	 
	(b)	 	clause 23 (Intellectual Property Rights);
	 
	(c)	 	clause 25 (Indemnities);
	 
	(d)	 	clause 26 (Liability);
	 
	(e)	 	clause 27.6 (Accrued Rights);
	 
	(f)	 	For so long as the Transition and Management Agreement is in effect,
clause 27.7(c) (Effect of Termination);
	 
	(g)	 	clause 29 (Dispute Resolution) and
	 
	(h)	 	clause 30.1 (Governing Law);




	 	 	 
	

	Services Agreement	111	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 









 



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	(i)	 	clause 30.5 (Waiver);
	 
	(j)	 	clause 30.10 (Third Party Beneficiaries);
	 
	(k)	 	clause 30.13 (Cumulative Rights);
	 
	(l)	 	clause 30.14 (Reading Down);
	 
	(m)	 	clause 30.15 (Severability);
	 
	(n)	 	clause 30.16 (Contra Proferentem); and
	 
	(o)	 	clause 30.18 (Survival of Terms).
	 
	(p)	 	Schedule Y (Class A Address Space Management).



THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.

 

 

 

 


	 	 	 
	

	Services Agreement	112	Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 









 



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EXECUTED by the Parties



	 	 	 	 	 	 	 
	SIGNED for and on behalf of	 	 	)	 	 	 
	Equant N.V	 	 	)	 	 	/s/ Matthew MacFarlane

	 	 	 	)	 	 	Signature of officer
	 
	 	 	 	)	 	 	Matthew MacFarlane

	 	 	 	)	 	 	Name of officer (print)
	 
	 	 	 	)	 	 	Vice President
Mergers & Acquisitions

	 	 	 	)	 	 	Office held
	 
	SIGNED for and on behalf of	 	 	)	 	 	 
	Société Internationale de
Télécommunications Aéronautiques S.C	 	 	)	 	 	/s/ John Oliver Watson

	 	 	 	)	 	 	Signature of officer
	 
	 	 	 	)	 	 	John Oliver Watson

	 	 	 	
)
	 	 	Name of officer (print)
	 
	 	 	 	)	 	 	Director General

	 	 	 	
)
	 	 	Office held
	 
	SIGNED for and on behalf of	 	 	)	 	 	 
	SITA Information Networking Computing N.V	 	 	)	 	 	/s/John Oliver Watson

	 	 	 	)	 	 	Signature of officer
	 
	 	 	 	)	 	 	John Oliver Watson

	 	 	 	
)
	 	 	Name of officer (print)
	 
	 	 	 	)	 	 	Managing Director

	 	 	 	
)
	 	 	Office held




	 	 	 
	

	Services Agreement		Dated: 30 November 2001
	Restated Version with Amendment No. 1 (Errata)	 









 



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SCHEDULE A


GLOSSARY


[*]

‘Account Management Agreement’ means the Account Management Agreement executed by SITA SC, SITA INC and
France Telecom on 29 June 2001.


‘Achieved Activity’ has the meaning set forth in clause 16.1(a) of this Agreement.


‘Active Sales’ means active marketing approaches to end customers, including without
limitation direct mail, advertisements in the media directly targeted at the customer group in
question, marketing visits which have not been specifically requested by such customers and
the submission of unsolicited bids.


‘Adjustments to the Year 2000 Cost Share’ has the meaning set forth in clause 10.2 of this
Agreement.


‘Affected Party’ means a Party that has delivered notice of an actual or proposed Change of
Control of such Party.


‘Affiliate’ means in respect of any legal entity, any other legal entity that Controls, is
Controlled by or is under common Control with such legal entity.


‘Agreement’ means this Services Agreement including all of the Schedules, all attachments to
such Schedules, and all of the appendices to such Schedules, all as amended from time to time.


‘Air Transport Community’ has the meaning set forth in Schedule B (‘Definition of Air
Transport Community’) to the Strategic Relationship Umbrella Agreement.


‘Allowable Differential’ has the meaning set forth in clause 12.6(a) of this Agreement.


‘Allowable Differential Curves’ has the meaning set forth in clause 12.6(b) of this Agreement.


‘Annual Forecast Date’ has the meaning set forth in clause 15.1(b) of this Agreement.


‘Annual Network Activity Forecast’ means a forecast of connections, traffic and other Network
activity for the period of thirty-six (36) calendar months commencing from the first day of
the calendar month immediately following the Annual Forecast Date.



	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-1	
	Restated Version with Amendment No. 1 (Errata)	 	









 



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[*]


‘Audit Representatives’ means an independent third-party accounting firm appointed by a Party
to audit another Party’s records or to inspect a Party’s owned or leased equipment that is
managed by another Party.



[*]


‘Benchmarking Agreement’ has the meaning set forth in clause 11.3(a) of this Agreement.



‘Benchmarking Certification Report’ has the meaning set forth in clause 11.5(a) of this Agreement.



[*]


‘Benchmarking Region’ has the meaning set forth in Schedule O (‘Benchmarking Regions’) to this
Agreement.


‘Benchmarking Report’ has the meaning set forth in clause 11.5(a) of this Agreement.


‘Benchmarking Survey’ has the meaning set forth in clause 11.1 of this Agreement.


‘Billing Entities’ and ‘Billed Entities’ has the meaning set forth in Schedule H (‘Billing
Entities, Billed Entities and Remitting Entities’) to this Agreement.


‘Billing Information’ has the meaning set forth in clause 18.4(a) of this Agreement.


‘Billing Period’ means the calendar month period in respect of which the Billing Entities are to deliver an invoice for
the Services rendered to SITA SC, SITA INC and the SITA Group Companies as applicable during
that calendar month.


‘Break Points’ has the meaning set forth in clause 12.6(b) of this Agreement.


‘Bundled Tail Circuits’ means Tail Circuits, Tie Lines or local access provided by Equant to
SITA SC, SITA INC and the SITA Group Companies on a bundled basis.


‘Business Days’ means Monday to Friday, excluding any public holidays, when banks are open for
business in New York, London, Amsterdam, Paris and Geneva.



[*]



	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-2	
	Restated Version with Amendment No. 1 (Errata)	 	









 



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‘Change of Control’ shall with respect to a legal entity mean:



	(a)	 	the sale of other disposition by such legal entity of all, or substantially all, of the
assets of such legal entity; or
	 
	(b)	 	the sale or other disposition of more than 50% of the capital stock of such legal entity
(other than to an Affiliate, or a bona fide pledge in connection with a financing); or
	 
	(c)	 	a merger, consolidation or other business combination involving such legal entity, which
results in the stockholders, or certificate holders, as applicable, of such legal entity
and/or its Affiliates immediately prior to such event owning less than 50% of the capital
stock of the surviving entity.



‘Claim’ means any claim, demand, proceeding or other action.


‘Commitment Date’ has the meaning set forth in clause 16.1(c) of this Agreement.


‘Comparable Provider(s)’ has the
meaning set forth in clause 2.4(a) of Schedule M
(‘Instructions to the Independent Expert’);


‘Comparable Service(s)’ has the
meaning set forth in clause 2.3(b) of Schedule M (‘Instructions to the Independent Expert’);



[*]



‘Confidential Information’ means in relation to SITA SC, SITA INC, and Equant, and each of their respective Affiliates:



	(a)	 	information that relates to the financial position, business, budget, financial and
product or marketing strategies, forecasts or projections of such entity, customer information
and lists, pricing information, costs data, estimates, market surveys, source codes, the
internal management or structure of such entity, technology plans, technical studies or
designs, trade secrets and other trade information, database models or personnel;
	 
	(b)	 	information that is marked by such entity as confidential or if disclosed orally is
identified as confidential;
	 
	(c)	 	the Strategic Relationship Umbrella Agreement, this Agreement, the Transition and
Management Agreement and the Account Management Agreement, and the terms and conditions or other provisions contained in each of
them (including any schedules or other attachments thereto);
	 
	(d)	 	in the case of Equant, the Equant IPR; and
	 
	(e)	 	in the case of SITA SC and SITA INC, the SITA IPR.





	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-3	
	Restated Version with Amendment No. 1 (Errata)	 	









 




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‘Consent’ means any approval, acceptance or consent by a Party that is required under this
Agreement. Pursuant to relevant clauses in this Agreement, except where expressly provided as
being in the sole and absolute discretion of a Party, Consent will not be unreasonably
withheld, conditioned or delayed.


‘Contract Year’ means 1 July to 30 June each year of the Term.


‘Contract Year One Cost Base’ has the meaning set forth in clause 10.3 of this Agreement.


‘Contract Year One Cost Base Transfers’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Contract Year One End Year True Up Payment’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Contract Year One Quarterly MRC Payment’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Contract Year Two Cost Base’ has the meaning set forth in clause 10.3 of this Agreement.


‘Contract Year Two Cost Base Transfers’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Contract Year Two End Year True Up Payment’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Contract Year Two Quarterly MRC Payment’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Contract Year Zero Volume’ has the meaning set forth in clause 10.3 of this Agreement.


‘Control’ and derivative terms (such as Controlling or Controlled) means, with respect to any
legal entity, the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such legal entity, whether through the ownership of
voting securities or by contract or otherwise.


‘Cost Base Services’ means the Services designated as such under Schedule I (‘Schedule of
Services’) and as described in clause 10.1(a).


‘Cost Base Service Charges’ means the amounts payable by SITA SC and SITA INC to Equant with
respect to the Cost Base Services.


‘Cost Base Transfers’ means the cost of activities removed from the Cost Base after the
Effective Date as reasonably agreed by the Parties.


‘Cost Efficient’ means cost efficient from a tax and legal perspective.

‘Cost Share’ has the meaning set forth in clause 10.2 of this Agreement.


‘Country’ means any national or federal jurisdiction or territory.


‘Cumulative Contract Year One Interim MRC’ has the meaning set forth in clause 10.3 of this
Agreement.


‘Cumulative Contract Year Two Interim MRC’ has the meaning set forth in clause 10.3 of this
Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-4	
	Restated Version with Amendment No. 1 (Errata)	 	









 



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‘Defaulting SITA Party’ has the meaning as set forth in clause 27.2 of this Agreement.


‘Detailed Billing Information’ has the meaning set forth in clause 18.4(a) of this Agreement.


‘Disclosing Party’ has the meaning set forth in clause 22.3(a) of this Agreement.


‘Dispute Resolution Procedures’, ‘Dispute Resolution Proceeding’ and ‘Dispute Resolution Process’ each means the procedures set forth in clause 8 of the Strategic
Relationship Umbrella Agreement.


‘Disputed Amounts’ has the meaning set forth in clause 18.5 of this Agreement.


‘Disputed Information’ has the meaning set forth in clause 18.5 of this Agreement.


‘Distributor’ means a customer of Equant that resells Network Services purchased from Equant
to one or more third parties.



[*]



‘Draft Price Book’ has the meaning set forth in Schedule J (‘Price Book Update Timescale’).


‘Duration’ has the meaning set forth in clause 16.3(a) of this Agreement.


‘Effective Date’ means 1 July 2001.


‘Effective Period’ has the meaning set forth in clause 7.1(a) of this Agreement.


‘Equant Group Companies’ means, at any time during the Term, Equant N.V. and its Affiliates.


‘Equant IPR’ means the IPR owned by the Equant Group Companies and used by any of the Parties (either themselves or as part
of the JV organisation) in providing, delivering or using Network Services, or in managing the Network or the resources required to provide, deliver
or use Network services.


‘Equant IT Services’ has the meaning set forth in clause 7 of the Transition and Management
Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-5	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Equant Non-Solicitation Obligation’ means the obligation of Equant not to make Active sales to customers
within the Air Transport Community, as set forth in clause 7.4 of this Agreement.


‘Equant Project Executive’ has the meaning set forth in clause 20.2 of this Agreement.


‘Equivalent Connections’ shall have the meaning set out in the JV Agreement.


‘Exception Priced Service Charges’ has the meaning set forth in clause 10.1 of this Agreement.


‘Exception Priced Services’ means the Services which are classified as “Exception Priced
Services” under Schedule I (‘Schedule of
Services’ and as described in clause 10.1(b)(ii).


‘Exclusivity Obligation’ means the obligation of the SITA Group Companies to purchase Network
Services exclusively from Equant, as set forth in clause 7.2 of this Agreement.


‘Executive Committee’ has the meaning set forth in clause 6.1 of the Strategic Relationship
Umbrella Agreement.


‘Force Majeure Event’ means any:



	(a)	 	fire, flood, earthquake, elements of nature or acts of God;
	 
	(b)	 	riot, civil disorder, rebellion, revolution, acts of war, or acts of terrorism;
	 
	(c)	 	third party strikes or lockouts affecting the non-performing Party’s ability to fulfill
its obligations; or
	 
	(d)	 	other causes beyond the reasonable control of the non-performing Party.



‘Forecast Dates’ means the Quarterly Forecast Dates and the Annual Forecast Date and in the
event that a Forecast Date does not fall on a Business Day, a reference to a Forecast Date
shall mean the Business Day immediately preceding the relevant Forecast Date.


‘France Telecom’ means France Telecom S.A., a société anonyme having its registered office at
6, place d’Alleray, 75015 Paris Cedex 5, France.


[*]



‘Generic Network Assets’ has the meaning set forth in clause 5.3 of this Agreement.


‘Generic Price Book’ means the Price Book that provides gross generic distributor prices with
respect to Generic Products/Services.


‘Generic Product/Service’ means a product or service that Equant offers generally to all of
its distributors and that is designated as such in the Price Books.


[*]




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-6	
	Restated Version with Amendment No. 1 (Errata)	 	









 



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‘Global One’ means Global One Communications Holding B.V. and Global One Communications World
Holding B.V of Klaprozenweg 75, 1033 NN Amsterdam, The Netherlands.


‘Global One ATC Contract’ has the meaning set forth in clause 6.4 of this Agreement.


[*]


‘Glossary’ means this Schedule A (Glossary) to this Agreement.


‘Heads of Agreement’ or ‘HOA’ means the Heads of Agreement executed by SITA SC, SITA INC,
France Telecom, and Equant on 19 November 2000.


‘Historical Activity Data’ has the meaning set forth in clause 10.5 of this Agreement.


‘Historical Data’ has the meaning set forth in clause 17(a) of this Agreement.


‘ICNO’ has the meaning set forth in the Transition and Management Agreement.


‘Independent Expert’ has the meaning set forth in clause 11.2 of this Agreement and shall
include any Replacement Independent Expert.


[*]


‘Insolvency Event’ has the meaning
as set forth in clause 27.3(a) of this Agreement.


‘Intellectual Property Rights’ or ‘IPR’ means any letters patent, patented articles, patent
applications, designs, copyrights, database rights, moral rights, inventions whether or not
capable of protection by patent or registration, techniques, technical data and know-how,
whether registered or unregistered and including applications, registrations and renewals in
connection thereunder for the grant of any such assets or rights of the foregoing descriptions
and all rights or forms of protection having equivalent or similar effect anywhere in the
world.


‘Interim Benchmarking Report’ has the meaning set forth in clause 11.6 of this Agreement.


‘Invoiced Party’ has the meaning set forth in clause 18.8(c) of this Agreement.


‘Invoicing Party’ has the meaning set forth in clause 18.8(c) of this Agreement.


‘IT Transition Period’ means the twenty-one (21) month period commencing on the Effective Date
and ending on the day before the twenty-first-month anniversary of the Effective Date.


‘JV Agreement’ or ‘JVA’ means the Joint Venture
Agreement executed by SITA SC, SITA Global
Telecommunication Services Limited, SITA Equant (formerly SITA Globetel Company) and Equant (formerly SITA
Telecommunications Holdings N.V.) on 2 October 1995, as amended.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-7	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Key Measurements’ has the meaning set forth in clause 1 Schedule F (‘Service Levels Schedule’) to this
Agreement.


‘Laws’ means:



	(a)	 	any applicable law, statute, regulation, ordinance or subordinate legislation in force
from time to time to which a Party is subject; and
	 
	(b)	 	any applicable directive, policy, rule, judgement, injunction, decree or order that is
binding on a Party and that is made or given by any government, agency thereof, or any
regulatory body;



of any Country, the European Union, or other national, federal, commonwealth, state,
provincial or local jurisdiction.


[*]



‘Losses’ means all losses, liabilities, damages, costs and expenses (including reasonable
legal fees, and disbursements including external costs of investigation, litigation,
settlement, judgement, interest and penalties).


‘MFN Agreement’ has the meaning set forth in clause 13.3(a) of this Agreement.


‘MFN Certification Report’ has the meaning set forth in clause 13.4(a) of this Agreement.


‘MFN Evaluation’ has the meaning set forth in clause 13.1(a) of this Agreement.


‘MFN Evaluation Report’ has the meaning set forth in clause 13.4(a) of this Agreement.


‘MFN Evaluator’ has the meaning set forth in clause 13.2 of this Agreement.


‘MFN Refund’ has the meaning set forth in clause 13.1(b) of this Agreement.


‘MFN Revised Net Price Book Prices’ has the meaning set forth in clause 13.1(b) of this
Agreement.


‘MFN Test(s)’ means the most favoured nation tests set forth in Schedule N (‘Instructions to
MFN Evaluator’).


‘Minimum Revenue Commitment’ or ‘MRC’ has the meaning set forth in clause 14 of this Agreement.


‘Minimum Unit Cost Reductions’ has the meaning set forth in clause 10.3 of this Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-8	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Modify’ and ‘Modification’ means to add to, expand, enhance, reduce, change, replace, vary,
derive or improve.


‘Net Price Book Prices’ means the prices derived by applying any applicable discounts to the
Price Books.


‘Net Price Book Activity’ means the billable activity applicable to the Net Price Book Prices.


‘Network’ means the network that is jointly managed by SITA SC and by Equant as at the
Effective Date pursuant to the JV Agreement, as such Network is modified throughout the Term.


‘Network Activity Forecasts’ means the Quarterly Network Activity Forecast and the Annual
Network Activity Forecast.


‘Network Implementation Action’ means a fully-developed business plan for a specific expansion
or modification of the Network.


‘Network Planning Committee’ means the committee established pursuant to clause 5.2 of this
Agreement.


‘Network Operational Performance Committee’ or ‘NOPC’ means the committee that is established
pursuant to clause 5.5 of this Agreement.


‘Network Resources” has the meaning set forth in the Transition and Management Agreement.


‘Network Services’ mean any product or service which is itself telecommunications carriage or
which includes telecommunications carriage as a component of such product or service.


‘Network Services Revenue’ means, in respect of a legal entity, the aggregate of all revenues
received from customers (other than from an Affiliate of such entity) from the sale of Network
Services, including all revenues received in respect of products that include Network Services
bundled with services other than Network Services.


‘Network Short Term Development Plan’ means a business plan for the development of the Network
that sits with Equant’s specific plans for the six (6) month period commencing from the date
of the Network Short Term Development Plan.


‘Network Strategic Plan’ means a long term strategic plan outlining Equant’s plans for the
Network.


[*]



‘Nomination Criteria’ has the meaning set forth in clause 1 Schedule K (‘Nomination and Selection of
Independent Expert’).




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-9	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Nominee’ has the meaning set forth in Schedule K (‘Nomination and Selection of Independent
Expert’).


‘Non-Cost Base Services’ means the Services designated as such under Schedule I (‘Schedule of
Services’).



[*]



‘Non-Renewed Revenue’ has the meaning set forth in clause 14(b) of this Agreement.


‘Operations and Procedures Manual’ means the manual to be developed by the Parties as described in clause 6.5 of this Agreement.


‘Overall Revenue’ means, in respect of a legal entity, the aggregate of all revenues received
from customers (other than an Affiliate of such legal entity) from the sale of any product or
service.


[*]



‘Pass Through Expenses’ means actual costs for Pass Through Services
that are charged by Equant to
SITA SC or SITA INC net of any related management fees as may be
agreed by the Parties (ie., without margin, markup or fee).


‘Pass Through Services’ means the Services which are classified as
 “Pass Through Services”
under Schedule I (‘Schedule of Services’).


‘Performance Targets’ has the
meaning set forth in clause 1 of Schedule F (‘Service Levels Schedule’) to
this Agreement.


‘Pre-Contractual Statements’ has the meaning as set forth in clause 30.6(a) of this Agreement.


‘Preliminary Price Book’ has the meaning set forth in Schedule J (‘Price Book Update
Timescale’).


‘Price Books’ means the Generic Price Book and the SITA Specific Price Book for the respective
Contract Year.


‘Price to Volume Assessment’ has the meaning set forth in clause 12.1 to this Agreement.


‘Price to Volume Assessment Report’ has the meaning set forth in clause 12.2 to this Agreement.


‘Priced Service Charges’ has the meaning set forth in clause 10.1 of this Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-10	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Priced Services’ means the Services which are classified as “Priced Services” under Schedule
I (‘Schedule of Services’) and shall include any Bundled Tail Circuits.


‘Pricing Structure’ has the meaning set forth in clause 10.2 of this Agreement.


‘Product Council’ means the committee that is established pursuant to clause 4.2 of this
Agreement.


‘Proposed Action’ has the meaning set forth in clause 5.1 of this Agreement.


‘Quarterly Forecast Dates’ has the meaning set forth in clause 15.1(a) of this Agreement.


‘Quarterly Network Activity Forecast’ means a forecast of connections, traffic and other
Network activity for the period of twelve (12) calendar months commencing from the first day
of the calendar month immediately following the Quarterly Forecast Date.


‘Quarterly Network Activity Forecast Value’ has the meaning set forth in clause 16.1(a) of
this Agreement.



[*]



‘Recognisable Costs’ has the meaning set forth in clause 16.1(b) of this Agreement.


‘Reconciliation Report’ has the meaning set forth in clause 18.4(a) of this Agreement.


‘Reduction Amount’ has the meaning set forth in clause 14(b) of this Agreement.


‘Related Provisions’ means the Exclusivity Obligation, the Equant Non-Solicitation Obligation
and the SITA Group Companies Non-Solicitation Obligation.


‘Remedy Period’ has the meaning set forth in clause 7.3 of this Agreement.


‘Replacement Independent Expert’ has the meaning set forth in clause 11.6 of this Agreement.


‘Replacement MFN Evaluator’ has the meaning set forth in clause 13.7(b) of this Agreement.


‘Replacement Supplier’ means a third-party provider selected by SITA SC and/or SITA INC to
supply services to replace all or part of the Services (a) after the expiry or termination of
this Agreement; (b) following a partial removal of part of the Services from the scope of this
Agreement; or (c) following exercise by SITA SC of the Step-In Rights.


‘Reports’ means those reports specified in Schedule G (Reports) to this Agreement.


‘Service Charges’ has the meaning set forth in clause 10.3 of this Agreement.


‘Service Credits’ has the meaning set forth in clause 1 of Schedule F (‘Service Levels Schedule’) to this
Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-11	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Service Level’ has the meaning set forth in clause 1 of Schedule F (‘Service Levels Schedule’) to this
Agreement.


‘Service Level Default’ has the meaning set forth in clause 1 of Schedule F (‘Service Levels Agreement’)
to this Agreement.


‘Service Levels Schedule’ means Schedule F (‘Service Levels Schedule’) to this Agreement.


‘Services’ means the Network Services and the Support Services and ad hoc services.


‘Significant Forecast Deviation’ has the meaning set forth in clause 16.1(a) of this Agreement.



[*]



‘SITA Group Companies’ means, at any time during the Term, SITA SC, its Affiliates, including
SITA INC (so long as SITA INC is Controlled by the SITA INC Foundation).


‘SITA Group Companies Non-Solicitation Obligation’ means the obligation of the SITA Group
Companies not to make Active sales customers outside of the Air Transport Community, as set forth in
clause 7.5 of this Agreement.


‘SITA INC Non-Equant Network Services Revenue’ has the meaning set forth in clause 7.3 of this
Agreement


‘SITA IPR’ means the IPR owned by the SITA Group Companies and used by any of the Parties (either themselves or as part
of the JV organisation) in providing, delivering or using Network services, or in managing the Network or the resources required to provide, deliver or use Network Services.


‘SITA Relationship Team’ or ‘SRT’ has the meaning set forth in clause 6.2 of the Strategic
Relationship Umbrella Agreement.


‘SITA Marks’ mean the trade marks, service marks, brand names, trade names, business names and
logos of the SITA Group Companies that were used by Equant, or are embedded in the software,
systems, works of authorship and similar materials in Equant’s possession, as of the Effective
Date.


‘SITA Specific Discount’ means all discounts applied to gross prices set forth in the Price
Books by Equant on behalf of SITA SC, SITA INC and the SITA Group Companies and includes the
Volume Discount.


‘SITA Specific Price Book’ means the Price Book that provides prices applicable to SITA
Specific Products/Services.


‘SITA Specific Product/Service’ means a product and/or service (other than a Generic
Product/Service) developed or to be developed for the specific use of the SITA Group Companies
and their customers.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-12	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




[*]



‘Standard Cost Services’ means the Services which are classified as “Standard Cost Services
under Schedule I (‘Schedule of Services’).


‘Standard Cost Service Charges’ has the meaning set forth in clause 10.1 of this Agreement.


‘Step-In Rights’ has the meaning set forth in clause 5.4 of this Agreement.


‘Strategic Relationship Benefits’ has the meaning set forth in clause 7.8(b) of this Agreement.


‘Strategic Relationship Umbrella Agreement’ means the Strategic Relationship Umbrella
Agreement executed by France Telecom, SITA SC, SITA INC and Equant on 29 June 2001.


‘Support Services’ means all products and services listed in the Price Books that are not
Network Services.


‘Tail Circuits”, ‘Tie Lines’ or ‘Local Access’ means tail circuits, tie lines and local access.



[*]



‘Term’ has the meaning set forth in clause 2 of this Agreement.


‘Terminated Benchmark Period’ has the meaning set forth in clause 11.6 of this Agreement.


‘Terminated MFN Period’ has the meaning set forth in clause 13.7(c) of this Agreement.


‘Terminated Revenue’ has the meaning set forth in clause 14(b) of this Agreement.


‘Termination Period’ has the meaning as set forth in clause 27.9(a) of this Agreement.


‘Transaction’ means the transaction contemplated by the Contribution Agreement relating to
Global One and the Share Purchase Agreement.


‘Transfer’ has the meaning set out in the Transition and Management Agreement.


‘Transferred Company’ has the meaning set forth in clause 7.3(g) of this Agreement.


‘Transition and Management Agreement’ means the Transition and Management Agreement executed
by Equant and SITA SC on the 29 June 2001.



[*]



‘Volume’ has the meaning set forth in Schedule P (‘Unit Cost, Cost Base and Volume
Considerations’) to this Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-13	
	Restated Version with Amendment No. 1 (Errata)	 	









 



Commercial-in-Confidence




‘Volume Discount’ has the meaning set forth in clause 10.2 of this Agreement.


[*]


‘Year 2000 Cost Base’ has the meaning set forth in clause 10.2 of this Agreement.


‘Year 2000 Cost Share’ has the meaning set forth at clause 10.2 of this Agreement.


‘Year 2000 Price Book’ has the meaning set forth at clause 10.2(d) of this Agreement.




	 	 	 
	

	Services Agreement	 	Dated:  30 November 2001
	Schedule A (Glossary)	A-14	
	Restated Version with Amendment No. 1 (Errata)