BHARAT SANCHAR NIGAM LIMITED.
PASSIVE TELECOM INFRASTRUCTURE SHARING AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is executed at New Delhi and is dated as of the 13th day of October 2009.
BETWEEN:
BHARAT SANCHAR NIGAM LIMITED a Company incorporated under the Companies Act,1956 having its registered and corporate office at ‘Bharat Sanchar Bhawan’ H.C. Mathur Lane, Janpath, New Delhi-110001 (hereinafter referred to as ‘BSNL’, which expression shall unless repugnant to the subject or context mean and include it successors and permitted assigns)of the FIRST PART
AND:
______, a Company registered under the Companies Act, 1956 having its registered office at ______and its corporate office at ______(Hereinafter referred to as ‘______” which expression shall unless repugnant to the subject or context mean and include its successors and permitted assigns) and
That, herein after for the reference purpose under this Agreement ______shall be referred to as “Sharing Operator” of the SECOND PART;
WHEREAS:
Sharing Operator is engaged in the business of rendering cellular mobile telephony services, by virtue of their respective service licenses [either holding Cellular Mobile Telephony Services (‘CMTS’)/Unified Access Service license (‘UASL’), as the case may be] as granted by the Department of Telecommunications (‘DOT’), Government of India, within their respective notified service areas so authorized under their respective service license.
BSNL has agreed to share its Passive Telecom Infrastructure across all telecom circles in India except the Metro service areas of Delhi and Mumbai and provide related operations and maintenance Services at various sites in India and the Sharing Operator has agreed to hire Passive Telecom Infrastructure from BSNL on mutually agreed terms.
Hereinafter sometimes BSNL and Sharing Operator collectively referred as “Parties” or individually as “Party”
NOW THEREFORE, IN CONSIDERATION of the premises and the mutual promises in this Agreement the parties agree as follows:
1. DEFINITIONS, AGREEMENT PARTS, PRIORITY
1.1 Definitions
In this Agreement, including the Recitals, the following terms have the following meanings:
i. "Annexure/Schedule" means the Annexure/Schedule attached to this Agreement at the time of its execution and/or as may be attached thereafter on mutual consent.
ii. Affiliate in relation to a Party means any person which, directly or indirectly, controls such Party or is controlled by such Party or is under common control with such Party; For the purposes of this Agreement, “Control” means the power and ability to direct the management and policies of the controlled company through ownership of or control of more than 50 (fifty) percent of the voting shares of the controlled company, either by contract or otherwise;
iii. Base Transceiver Station (BTS): means a base transceiver station (BTS) is a equipment in a network that facilitates wireless communication between user equipment (UE) like mobile phones, computers etc. and a network.
iv. BTS slot: means a specific location on a tower where antennas that transmit / receive signals related to a particular BTS can be fitted
v. GBT site: means Passive Telecom Infrastructure site with Ground Base tower
vi. RTT site: means Passive Telecom Infrastructure site with tower at the Roof Top of a building.
vii. Telecom Equipment (TE): means a Radio Frequency (RF) antennae system, microwave or transmission antennae systems, BTS, feeder cables and any other active equipment used for wireless communication services that may be installed by the Sharing Operator in accordance with this Agreement.
viii. Commencement Date: Shall have the same meaning as set forth in Clause 3.
ix. Passive Infrastructure Provisioning Fee /Fee: means the monthly service charges as provided in Schedule 3.
x. Governing Principles: The Services offered by BSNL shall be governed by Scope of Services and Service Level Agreement, as per Schedule 1 & Schedule 2 respectively, which shall be executed by the Parties simultaneously with the execution of this Agreement.
xi. Captions / Headings: The Captions / Headings of this Agreement / Annexure / Schedules are inserted for convenience only and are not to be construed as part of this Agreement or the applicable Service Order or in any way limiting the scope or intent of its provision. The headings or the captions of the paragraph or chapters should not be used as a guide to interpret the paragraph or chapter. They shall be for reference only.
xii. License: means a license granted or having effect as if granted to either Party under the Indian Telegraph Act 1885 and Indian Wireless Act 1933 or any other applicable statute in India with respect to carrying on its business.
xiii. Licensees: A person or organization to which/whom a License has been granted.
xiv. Passive Telecom Infrastructure / Passive Infrastructure: means any Passive Telecom Infrastructure inter alia tower, shelter, DG Sets, Air conditioners, electrical, civil work, DC Power plant , -48 V Battery bank, Space for transmission equipment on Tx rack (Tx rack is option and subject to availability) and other equipments etc., which will enable the Sharing Operator to install and operate its active telecom equipments at the site(s).
xv. Services: means provisioning Site along with Passive Telecom Infrastructure facilities built thereon and the related operations and maintenance services as more fully described in the Schedule 1.
xvi. Telecom Site /Site: means the location/place from where Passive Telecom Infrastructure and the Services are provided to the Sharing Operator and includes wherever applicable any land/roof top/structure created thereon.
xvii. Master Services Agreement (MSA): means this Agreement along with the Annexures /Schedules entered into between BSNL and the Sharing Operator, agreeing the general terms and conditions of sharing of Passive Telecom Infrastructure.
xviii. Site Agreement: means with respect to Site(s), the service agreement to be entered into between BSNL and Sharing Operator for sharing Passive Infrastructure of BSNL, subject to terms and conditions of this Master Services Agreement.
xix. Service Order: means the document by which the Sharing Operator places a firm order on BSNL for the Services at Site(s). The Service Order shall inter alia specify the location and the Fees for the same fixed in accordance with this Agreement. On acceptance of the Service Order by BSNL, the same shall become valid and binding on the Parties.
xx. Exit: Means physical removal of Sharing Operator’s equipment from Telecom Site, due to any of the following conditions unless otherwise mentioned in this Agreement:
· The order of any Government (Central / State) or any statutory body
· In Force Majeure event
xxi. Other Terms: Other terms used but not defined in this Agreement shall have the meaning generally understood in the telecommunications industry.
xxii. Computation of Time: Where there is a reference to a period of time consisting of a number of days or calendar months after a specified day, the number of days and months, respectively, shall be counted from, but should not include, the specified day of the month from which the count started. If the end day of the period of time so computed falls on a non-Business Day, then the end day of the period shall be the next Business Day.
xxiii. Recitals: The recitals to and in this Agreement form an integral part of the Agreement and are intended to assist in the interpretation of this Agreement.
xxiv. External Sharing Operator: means any telecom operator other than BSNL and Sharing Operator, sharing the Passive Infra structure at the site.
2. OBLIGATIONS OF PARTIES
2.1 BSNL Obligations
2.1.1 BSNL shall provide existing Telecom Sites including its operation and maintenance services on shared basis to the Sharing Operator as per Schedule 1 and Schedule 2 of this Agreement, respectively. BSNL shall provide Telecom sites with Passive Infrastructure as per Schedule 1 that can be used by the Sharing Operator.
2.1.2 BSNL shall be fully responsible for the security, maintenance and operations of the Telecom Site and its Passive Infrastructure as specified in the Service Level Agreement annexed hereto.
2.1.3 BSNL shall be responsible for proper upkeep of the electric meter and the DG sets.
2.1.4 BSNL shall undertake maintenance activities of Passive Infrastructure at mutually agreed planned outage periods.
2.1.5 BSNL shall be responsible for the statutory compliances and liasioning with municipal/government bodies in connection with the Passive Infrastructure and Services covered under this Agreement
2.1.6 BSNL shall be responsible for the payment of statuary levies/municipal charges and monthly consumption charges of power and fuel.
2.1.7 BSNL shall ensure that appropriate land purchase agreements/lease agreements/license agreements are in place for the Telecom Sites at the time of Site sharing by the Sharing Operator and during the provisioning of Services, as contemplated here under this Agreement
2.1.8 Should an additional External Sharing Operator be offered an existing Site where Sharing Operator is operating, and such External Sharing Operator shall require alteration of the existing Site, such alteration shall be carried out by BSNL (including changing of position of the TE) provided that BSNL shall inform the Sharing Operator about the necessary alterations at least 15 days in advance and shall coordinate and cooperate with the Sharing Operator so that any such alterations shall not adversely affect the quality and performance of TE and shall be performed with minimum disturbance of the activities of the Sharing Operator on the Site and at no cost to the Sharing Operator, either directly or indirectly.
2.1.9 BSNL shall monitor and control all Passive Telecom Infrastructure alarms, and in the event of any occurrence of such alarms do the necessary actions to maintain the Service Levels of the Sites. BSNL shall also provide extension of Passive Telecom Infrastructure alarms to an alarm box on best effort basis which Sharing Operator can extend the same to the Sharing Operator’s NOC.
2.1.10 BSNL shall provide to the Sharing Operator, the co-ordinates (Latitude and longitude) of the existing Telecom Sites which BSNL will share, based on requirements submitted by Sharing Operator from time to time.
2.2 Sharing Operator Obligations
2.2.1 The Sharing Operator agrees to utilize such Passive Telecom Infrastructure on shared basis with BSNL and also with other External Sharing Operators of BSNL
2.2.2 The Sharing Operator shall use the Telecom Site only for the purpose of installation, operation and maintenance of its TE and use the said Site and its Passive Telecom Infrastructure for telecommunication activities.
2.2.3 The Sharing Operator shall carry out the installation of TE at the Sites and shall also maintain the same in proper operating condition and maintain the same as to appearance and safety. The Sharing Operator shall ensure that operations of its TE does not interfere, obstruct or restrict use of the Site by BSNL or any other user of the Site and do not cause any harm /nuisance to public in which case both the parties shall mutually work towards resolution of the same. The Sharing Operator shall allow access to its TE at any Sites only to its designated employees/ agents (“representatives”) and shall communicate the list of such representatives in respect of each Site to BSNL. The Sharing Operator shall be solely responsible for all acts and/or omissions of the representatives at the Sites.
2.2.4 During the commissioning of TE and subsequent operations and maintenance of the TE, the Sharing Operator shall ensure that all the safety measure as mandated/required/desirable for the execution of the job, are properly taken care of by his employees.
2.3 Common Obligations of Parties
2.3.1 Each Party shall ensure that during the operation and maintenance of its equipment installed on Telecom Site, it neither obstruct/impede/hinder the operation of other Party’s active equipment installed at the same Site. In case of such obstruction or damage, the Party causing such obstruction or damage will be liable to compensate any expense to restore/repair the same.
2.3.2 Each Party shall ensure that neither its employees, nor the officers and agents violate the terms of this Agreement.
3. COMMENCEMENT DATE
3.1 BSNL shall, in anticipation of completion of a Site (RFIE – Ready for installation of electronic equipment) send a written and email communication to the Sharing Operator (“Notice of Readiness”) at least 10 days in advance informing the Sharing Operator the RFIE Date.
3.2 In case, if the Sharing Operator brings to the notice of BSNL any material defects in Site or the Passive Telecom Infrastructure, BSNL shall make all reasonable efforts to enable the Sharing Operator to install its TE . The material defects, if any, should be brought to the notice of BSNL within 10 days from the date of receipt of Notice of Readiness, by the Sharing Operator. BSNL shall remove all the defects in Site within the next 10 days and send a “Re-offer Intimation” 3 days prior to clearance of such defects. The RFIE Date of that particular Telecom Site will be 11th day from the date of receipt of Notice of Readiness or in case of defects on Site then 4th day from the date of Re-offer Intimation, as applicable.
3.3 If the defects are not notified within 10 days from the receipt of Notice of Readiness by the Sharing Operator, then the Site is deemed to have been made available to the Sharing Operator on RFIE date of that respective Site.
3.4 The Parties shall sign individual “Site Agreement” within 7 days from the RFIE Date. The Sharing Operator will be given a time period of 15 days to mount/install its TE after the RFIE date.
The Commencement date shall be considered as 15 days from the RFIE date.
All the provisions of this Agreement shall be applicable to each Telecom Site under this Agreement unless repugnant to the context thereof.
FEES
The Fees payable by Sharing Operator in consideration of the Services with respect to shared Telecom Sites is detailed in Schedule 3 .The Fee (as specified in Schedule-3) except the actual energy consumption charges for Services shall be payable from the Commencement Date. The actual energy consumption charges will be payable from the power-on date or 60 days from the Commencement Date whichever is earlier.
4. INITIAL TERM AND RENEWAL, LOCK IN PERIOD AND EXIT CLAUSE
4.1 The terms and conditions of this Agreement shall come into effect from the date of signing of the same, and will remain valid for 15 years or for the term of the lock-in period of last respective site taken under this Agreement whichever is later. Thereafter, the Parties may renew this Agreement, as per terms and conditions, mutually agreed between Parties. All the clauses of this Agreement shall come into effect from the date of signing, unless otherwise specified.