DEFINITIONS AND INTERPRETATION
Definitions. In this Agreement the following words and phrases shall have the
Agreement means the contract between Bahrain
Telecommunications Company B.S.C. (herein referred to as “Batelco”)
addressed at building 1095, road 1425, Al-Hamala 1014, P.O. Box 14, the Kingdom
of Bahrain, and the signatory to this Agreement (hereinafter referred to as “Customer”)
for the provision of the Services, and the Agreement shall comprise of the
any relevant Order Form duly
executed and signed between the Parties;
these General Terms and Conditions
for the provision of Manama-IX Services; and
the Service Level Agreement;
Associated Entity means (i) each individual,
company, partnership or other entity of any type which employs, contracts with,
or is otherwise associated or affiliated with Customer, Authorized Persons or
Accompanying Persons, (ii) any of Customer’s end users and (iii) Sublicensees.
AUP means the Acceptable
Use Policy document;
Charges means the Rental Charges and Non-recurring
Charges payable to Batelco by the
Customer under this Agreement, which shall be set out in the relevant Order
Connection means the physical connection of the
router of Customer (directly or via a third party network) to Manama-IX, also
known as “Port”;
Co-location means the physical location in which Manama-IX Infrastructure is present;
Customer Equipment means all hardware and
software not supplied by Batelco and owned by the Customer or licensed or
leased to the Customer by a third party which is used (directly or indirectly)
in relation to the Service;
Equipment means any apparatus, equipment, hardware material, the Software and
other items (including parts and components) placed on the Co-location by
Batelco for the provision of the Service or otherwise pursuant to this
a failure or malfunction in the Service(s);
Force Majeure Event means any cause or
circumstance whatsoever beyond Batelco’s reasonable control, including (but not
limited to) any act of God, fire, extreme weather conditions, industrial
action, default or failure of a third party, war, act or omission of government
or authority, compliance with any law or governmental or regulatory authority
requirement which comes into force after the date of this Agreement, terrorist
acts, civil commotion or disturbance, riot, insurrection or embargo, power
failure, breakdown of plant machinery or vehicles, theft, sabotage and
Intellectual Property Rights means copyrights (including
rights in computer software), patents, trade and service marks, trade and
business names (including internet domain names), design rights, database
rights, semi-conductor topography rights, rights in undisclosed or confidential
information (such as know-how, trade secrets and inventions (whether patentable
or not)) and all other intellectual property or similar proprietary rights of
whatever nature (whether registered or not and including applications to
register or rights to apply for registration) which may now or in the future
subsist anywhere in the universe;
Network means any network, system, cable or transmission
facility owned, leased operated or managed by, or on behalf of, Batelco;
Non-recurring Charges means the once-off charges
payable by the Customer in connection
with the Services as specified in the Service Order Form;
Order Form means a completed order form requesting
the Service(s) issued or signed by the Customer, a copy of which is annexed
Party or Parties means Batelco or the
Customer individually or collectively;
Payment Due Date means thirty (30) Calendar
Days from the invoice issuance date to the Customer by Batelco;
Planned Outage means any routine maintenance
or upgrade work to be performed by Batelco which may affect the availability of
Rental Charges means the recurring charges
payable by the Customer to Batelco for the use of the Services, as specified in
the Order Form;
Service means the relevant Manama-IX service
which shall be specified by the Customer in the Order Form that it provides to
Batelco in accordance with this Agreement;
Service Commencement Date means the date when the
Service is handed over to the Customer by Batelco in accordance with clause
Service Demarcation Point is the Manama-IX patch panel in the Global Zone MMR where Manama-IX
is co-located. This patch panel is the demarcation point between the Customer
and Manama-IX. The responsibility for the connection between the Customer’s
router and the IX patch panel is with the Customer. The responsibility for the
connection from the IX patch panel is with Manama-IX.
Service Level Agreement means the service level
agreement set out herein for the Services provided by Batelco to the Customer;
Service Term includes a service period of at least
twelve (12) calendar months, or any such other period greater than twelve (12)
calendar months, as specified in the Order Form, starting from the Service
Commencement Date, for which Customer agrees to acquire the Service(s)
specified on the Order Form;
Termination Charge refers to a charge payable in
relation to cancellation of a Service during the Service Term, as set out in
VAT means any value added tax chargeable
under the applicable law for the time being and any similar additional tax;
Working Day(s) means any day (other than a
Friday, Saturday or public holiday in the Kingdom of Bahrain); and
Working Hour(s) means the time between 07:00
and 15:00 during Working Days.
1.2. Precedence. In the
event (and to the extent only) of any conflicts or inconsistencies between
these Terms and Conditions and any of the constituent parts of this Agreement,
then the following order of priority shall apply:
these Terms and Conditions; and
the Order Form;
Commencement and duration of
This Agreement commences on the
last date that it is signed by duly authorised representatives of Batelco and
the Customer (the “Effective Date”)
This Agreement shall remain valid
until the valid termination by either Party in accordance with the terms of
this Agreement; or
Upon expiry of the Service Term,
this Agreement shall be automatically renewed for further periods of one (1)
year, unless terminated by either Party under the terms of this Agreement.
IP Address Allocation. Batelco will allocate an IPv4/30 free of charge to Customer as part
of each port order.
Addresses. If Customer desires a larger IP address
space allocation, Customer shall submit a request to Batelco for the larger
allocation. If Batelco approves the request, the Customer will be required
to fill out and complete an Order Form for the larger IP allocation in
accordance with clause 4. Each larger allocation for IPv4 address space
will be subject to an additional Monthly Rental Charges. Batelco makes no
guarantees that any subsequent allocations will be contiguous to any of Customer’s
existing allocations. IP address space allocations are subject to the AUP
and will be terminated and reclaimed when Customer’s Manama-IX Services with Batelco
Peering Agreements. Peering arrangements are not covered by this Agreement. The Customer is
responsible for the negotiation, conclusion and implementation of peering
arrangements with other users of Manama-IX.
Service order(s) and DELIVERY
Ordering Service(s) To order a Service, the Customer shall fill out and complete an Order
Form and submit it to Batelco. For the avoidance of doubt, the Order Form may
be in electronic or paper form.
The Customer warrants the accuracy
of the Customer provided details in the Order Form.
Service Provision Batelco reserves the right to reject any submitted Order Form for any
reason, whether previously accepted by Batelco or not, including but not
limited to (a) inability or impracticality of providing the Service(s); or (b)
the Service(s) no longer being commercially offered by Batelco.
The Service Commencement Date
shall be upon the handover of the Service by Batelco to the Customer unless the
Customer informs Batelco within three (3) Working Days from the date of
handover by Batelco that the Service does not comply with the Agreement and is
not ready for use.
Batelco can arrange for the
installation of the Service(s) outside of the Working Hours on a time and
Concurrent Service Orders. Each accepted Order Form constitutes an independent contract for the
provision of Service(s), in accordance with, and subject to, the terms and
conditions of the Agreement. The terms of multiple Service(s) may run
concurrently, but shall not be o-terminus absent express provisions in a
written amendment to this Agreement.
Service Acceptance. Except as otherwise expressly stated in clause 3.4, the Customer is
deemed to have accepted a Service upon the Service Commencement Date.
The obligations and
responsibilities of Manama-IX with regard to the Connection will not apply
beyond the Service Demarcation point or patch at the Co-location.
SERVICE LEVEL AGREEMENT
Agreement. Batelco shall provide the Service to the
Customer in accordance with the respective Service Level Agreement in the
relevant Service Schedule(s), subject to the exclusions set out therein.
Notwithstanding the foregoing, Batelco reserves the right to amend the SLAs
from time to time effective upon posting of the revised SLA to the Manama-IX
website www.manama-ix.bh or otherwise via written notice to the Customer,
provided that in the event of any amendment resulting in a material reduction
of the SLA’s service levels or credits, Customer may terminate the Service
without early termination liability (except for payment of all Charges up to
the effective date of such Service discontinuance) by providing Batelco at
least 30 days’ notice of termination during the 10 Working Days following notice of such
amendment. The SLA sets forth Customer’s sole remedies for any claim relating
to the Service or the Network, including any failure to meet any guarantee set
forth in the SLA. Batelco’s records and data shall be the basis for all SLA
calculations and determinations. Notwithstanding anything to the contrary, the
maximum amount of credit in any calendar month under the SLA shall be
documented in the relevant Service Schedule.
USE OF THE SERVICE
The Customer will not use the
in a way which does not comply
with the terms of any legislation or any licence applicable to the Customer, or
that is in any way unlawful or fraudulent or, to the knowledge of the Customer,
has any unlawful or fraudulent purpose or effect, or which infringes or may
potentially infringe the rights of any third party;
in connection with (without
prejudice to the generality of clause a) above) the carrying out of a fraud or criminal
offence against Batelco or any other party; or
for the storage, to send,
knowingly receive, upload, download, use or re-use material which is abusive,
indecent, defamatory, obscene or menacing, or in breach of copyright,
confidence, privacy or any other rights or which is liable to incite racial
disharmony or hatred, or which comprises virus or other code liable to cause
loss or damage; or
to send or procure the sending of
any unsolicited advertising or promotional material; or
The Customer shall indemnify
Batelco against any losses, damages, liabilities, costs, charges or expenses
which Batelco may incur as a result of any breach or alleged breach by the
Customer of its obligations under this clause 6.
Without prejudice to the
foregoing, if Batelco discovers or is notified by the Customer or any other person
of the transmission of data or voice or other matter relating to data or voice
or use of the Service by the Customer or its customers that is in violation of
any law, regulation, order or other similar rule of any competent authority or
use policy, Batelco may (without any liability or penalty whatsoever) take all
action required to ensure compliance with, or to prevent any breach of such
laws, regulations, orders, rules or such use policies (including but not
limited to suspension of the Service pursuant to clause 13.6).
Batelco shall use reasonable endeavours to provide the Customer with prior
written notice of such action, as soon as is reasonably practicable, unless
prevented from doing so by any law, regulation, order or similar rule, or Force
Customer agrees to exchange
traffic through the Manama-IX Infrastructure only when there is a bilateral
agreement to exchange traffic between Customer and the other individual
Customers on the Manama-IX Infrastructure.
Customer is solely responsible
that its use of the Connection does not cause or is likely to cause any damage,
or is in any other way harmful, to the Manama-IX Infrastructure, to Batelco or
to the normal operation, availability or functionality of the Connection and/or
the Co-location or to the traffic exchanged. Specifically, the Customer will
adhere to the restrictions relating to the AUP.
Batelco can regulate details of
collaboration among Customers through access conditions and user regulations.
Violations of material provisions of these supplementary conditions entitle
Batelco to terminate the agreement after written notice and a ten (10) Calendar
days cure period.
MAINTENANCE OF SERVICE
The maintenance of the Services
shall be performed by Batelco, either directly or through third parties
selected by Batelco.
7.3. Emergency Outage. Refers to works undertaken
by Batelco to carry out a change in its Network, Equipment or facilities to
prevent a potential Network or customer outage, or to repair a chronic customer
impacting problem that would result in unavailability of the Service if the
works are not undertaken or for any other reason beyond Batelco’s reasonable
control. If Batelco suspends the Service for urgent maintenance, Batelco
shall give the Customer as much advance notice as is reasonably practicable.
If the Service develops a Fault or
defect which, is due to an act of default of the Customer, the Customer shall
use its reasonable endeavours to investigate and rectify the Fault or defect
and/or indemnify Batelco for all reasonable costs and expenses incurred in
relation to the investigation and remedy of such fault or defect. The Customer agrees to promptly pay any such
charges on receipt of an invoice from Batelco. Any breach by the Customer of
this clause constitutes a material breach of this Agreement.
The Customer agrees to pay the
Charges to Batelco for the Services as specified in the Order Form.
Variation of Charges. Batelco may vary its Charges at any time during the Service Term upon
thirty (30) calendar days’ prior written notice to the Customer. Without
prejudice to Batelco’s rights under this clause, the Customer may dispute the
change in Charges following the process outlined in clause 15.2 to 15.5
Rental Charges shall be invoiced monthly in advance, Rental Charges for Services
provided for part of a month shall be charged on a pro-rata basis.
Non-Recurring Charges related to the Services shall be invoiced in arrears.
Currency Conversion. If a conversion of currency is necessary, the conversion rate shall
be as notified by Batelco to the Customer.
Invoices. Batelco shall send the relevant electronic invoices on a monthly basis
to the Customer to the Customer’s notice address set out in clause 17.2 of this
The Customer shall pay the
undisputed Charges due in full on or by the Payment Due Date.
Subject to this clause 9, if the
Customer, in good faith, disputes the amount in an invoice solely relating to
statement errors (“Billing Dispute”) by notifying Batelco in writing,
the Customer shall:
continue to pay any undisputed
amounts to Batelco on or by the Payment Due Date;
cooperate with Batelco to promptly
resolve the Billing Dispute; and
where applicable, pay the amount
agreed upon mutually between the Parties within ten (10) Working Days from the
resolution of the Billing Dispute.
If the Customer does not notify
Batelco of a Billing Dispute within fourteen (14) Working Days from Payment Due
Date, the invoice shall be deemed undisputed for the purposes of clause 8, and
the Customer irrevocably waives the right to dispute the respective invoice as
a Billing Dispute in the future.
All debts and obligations of the
Customer towards Batelco shall become immediately due and payable if:
any form of attachment or seizure
is made on any of the Customer’s assets;
any order or application is made
or any effective resolution is passed with a view to the bankruptcy or
moratorium, dissolution or winding up of the Customer;
the Customer becomes solvent or
otherwise ceases or threatens to cease to pay its debts; or
the Customer, without the prior
written consent of Batelco, converts its corporate form into another legal
entity, transfers its undertaking or a substantial part thereof, to a third
party, or moves its corporate seat to another country’s jurisdiction.
8.10. If the Customer does not pay an invoice by the Payment Due Date,
Batelco shall have the right at its discretion and without notice to the
Customer to set-off that amount against any amounts Batelco owes to the
Customer under any valid invoice issued under this Agreement or otherwise; or
8.11. Interest. If the Customer does not make
payment on or before the Payment Due Date, which shall constitute a default for
all purposes, Batelco reserves the right to charge monthly interest on all
defaulted amounts at the flat rate equal to one and a half percent (1.5%) above
the London Inter-bank Offered
Rate (LIBOR), beginning from the default date until actual payment of
the outstanding amount. Interest shall continue to accrue notwithstanding
termination of the Service for any reason, until the outstanding amount is
paid. Any reasonable incidental charges reasonably incurred by Batelco in
relation to recovery of its dues under this Agreement, will be billed
separately to the Customer.
8.12. VAT. All Charges mentioned in this Agreement
are exclusive of any applicable taxes, including but not limited to VAT,
corporate income tax and other taxes that may be imposed by any public or
governmental authority in respect of this Agreement.
8.13. Either Party will bear their respective taxes liability, if any, applicable
in their country.
8.14. In the event that a tax treaty applies between the countries of both
Parties and it provides for tax to be withheld in Batelco’s country (Kingdom of
Bahrain) on the payment due to the Supplier in respect of this Agreement, Batelco
shall withhold or deduct such tax from the payments due to the Supplier
provided such tax to be actually paid by Batelco to the appropriate authorities
in Bahrain. In such a case, Batelco will provide the Supplier with the official
receipt, tax certificate and/or the valid proof of payment as per the
respective local laws.
Customer acknowledges that any and
all patents, registered and unregistered designs, copyrights, trademarks and
all other Intellectual Property rights whatsoever and wheresoever enforceable,
which are used in connection with the Service and/or Service Equipment, shall
remain the sole property of Batelco or third party owners, as applicable.
The Customer acknowledges and
agrees that all Intellectual Property Rights in the Service, the Software and
the Equipment are, and shall remain at all times, the property of Batelco or
its licensors. The Customer shall
execute all such documents and render all such assistance as Batelco may
from time to
time require to
perfect and enforce
Batelco’s title to the
Intellectual Property Rights.
Batelco grants the Customer, for
the duration of this Agreement, a non-exclusive, non-
transferrable licence to use the Intellectual Property Rights in the Equipment
and the Software solely for the purposes of using the Service in accordance
with this Agreement.
The Customer will not
copy, de-compile or
modify the Equipment and/or the
Software, provided to the Customer in connection with the Service.
The Customer may copy any manuals
or documentation provided by Batelco in connection with the Service for its
internal business use only. Such copies shall be destroyed immediately upon the
expiry or termination of this Agreement for any reason.
The Customer shall indemnify
Batelco against any action at law based on the allegation that the use of
the Software, Equipment and/or
Service infringes any third party
intellectual property rights.
Except as provided in this clause
9, nothing in this Agreement entitles the Customer to use any Batelco and/or Manama-IX
name, logo, or trade mark or any Batelco intellectual property in connection
with the Service without the prior written consent of Batelco. Any breach of
this clause constitutes a material breach of this Agreement.
keep confidential all information
(whether written or oral) concerning the business, trade secrets, customers,
suppliers and affairs of the other parties that it shall obtain or receive as a
result of the discussions leading up to or the entering into or performance of
this Agreement (the “Confidential Information”);
not without the other party’s
written consent disclose the Confidential Information in whole or in part to
any other person save those of its employees, agents, advisers and sub-
contractors involved in its performance of this Agreement and who have a need
to know the same; and
use the Confidential Information
solely in connection
with the performance of their respective obligations under this
10.2. The provisions of clause 10.1 above
shall not apply to any Confidential Information to the extent that such
information is already in the other party’s possession on the date of its
disclosure, or in the public domain other than as a result of a breach of this
clause or is required to be disclosed by an order of a competent court or
10.3. Each Party hereby undertakes to the other to make all relevant
employees, agents, advisers and sub-contractors aware of the confidentiality of
the Confidential Information under the provisions of this clause and without
limitation of the foregoing to take all such steps as shall from time to time
be necessary to ensure compliance by its employees, agents, advisers and
sub-contractors under the provisions of this clause.
LIABILITY AND INDEMNITY
11.1. Customer will be responsible and liable for all acts or omissions of
Customer’s Authorized Persons, Accompanying Persons, Associated Entities and
for any equipment or services not provided by Batelco.
11.2. Subject to clause 11.4, neither Party to this Agreement shall have any
liability to the other Party in respect of any loss or damage whatsoever and
howsoever arising in connection with this Agreement, including, but not limited
to, liability in contract (including under any indemnity or warranty), under
any applicable legislation or otherwise for any: (a) loss of profit; (b) loss
of revenue; (c) loss of anticipated savings; (d) loss or corruption of data;
(e) loss of contract or opportunity; (f) loss of goodwill; or (g) indirect or
consequential loss of whatever nature, including (without limitation) any loss
of a type described in (a) to (f) above which could be regarded as indirect or
consequential and whether or not reasonably foreseeable, reasonably contemplatable,
or actually contemplated by the parties at the time of execution of this
Agreement, to the extent permitted by law.
11.3. Both Parties’ liability shall be limited to an amount equal to the
Charges payable by the Customer for the Service for a twelve (12) month period
within the Service Term of the year in which the cause of action giving rise to
the liability arose.
for death or personal injury
arising from the negligence or wrongful act of that party or its directors,
officers, employees, contractors or agents;
in respect of fraud or of any
statements made fraudulently by that party or its directors, officers,
employees, contractors or agents;
any indemnities set out in clause
any amounts due and payable to
Batelco by the Customer under this Agreement.
Neither Party shall be
in breach of its obligations (excluding the Customer’s payment obligations)
under this Agreement if there is any total or partial failure of performance by
it of its obligations resulting from a Force Majeure Event. If the Force
Majeure Event continues for more than thirty (30) Working Days and
substantially affects the abilities of the Parties to perform this Agreement, the
non-defaulting party shall have the right to terminate this Agreement forthwith
upon giving written notice to the other Party.
No Party shall have any liability to the other in respect of the
termination of this Agreement as a result of a Force Majeure Event.
damages the Services
breaches clause 6 of this
Customer or Customer’s Equipment
interferes with operation or maintenance of Global Zone or with one or more
other customers' use thereof, and within a reasonable time, not to exceed one
(1) hour after being notified by email or phone, Customer fails to (a) cease
such interference; (b) provide a plan acceptable to Batelco to cease such
interference; or (c) authorize Batelco to take action to cease such
interference (billed at Hands & Eyes rates); or
in Batelco’s reasonable judgment
Customer or Customer’s Equipment has the potential to interfere with operation
or maintenance of Batelco’s data centre or with one or more of its other
customers' use thereof, and within a reasonable time, not to exceed forty-eight
(48) hours after being notified by e-mail or phone, Customer fails to
resolve such potential
(provide a plan acceptable to to
resolve such potential interference; or
authorize Batelco to take action
to resolve such potential interference (billed at Hands & Eyes rates, as
further defined in the relevant Service Schedule(s)). If Batelco suspends a
Service pursuant to this clause, unless Batelco has subsequently terminated the
Agreement as permitted under the Agreement, Batelco will resume the discontinued
Service as soon as reasonably practical after it is reasonably satisfied that
Customer has cured the breach(es) which gave rise to the suspension; and
Batelco may charge a reinstatement fee. Further, Batelco may terminate the
Agreement if Customer’s breach referred to in this clause 13, continues for at
least five (5) days or occurs more than three (3) times in any twelve (12)
13.2. Unless Batelco has subsequently terminated the Agreement as permitted
under the Agreement, the Services shall remain suspended or disconnected
pursuant to clause 13.1 for the
time that Batelco shall deem appropriate in order to avoid any further damage
to the Services, or when it is reasonably satisfied that the Customer has cured
the breach(es) which gave rise to the suspension; and Batelco may charge a
reinstatement fee. In such a case, the Customer shall not be entitled to claim
any compensation for damages, losses or other charges deriving from the
suspension or disconnection of the Services. Further, Batelco may terminate the
Agreement if Customer’s breach referred to in this clause 13, continues for at
least five (5) days or occurs more than three (3) times in any twelve (12)
13.4. Without prejudice to this clause, Batelco may suspend the Service in
accordance with clauses 7.3 and
14.4.2 under this Agreement. Batelco also reserves the right, at any time, to
suspend the service immediately and without notice if in Batelco’s reasonable
judgment such suspension is necessary to mitigate immediate risks related to
health, safety, or equipment damage (whether such equipment is owned by
Customer, a 3rd party, or Batelco).
13.5. Where the Service or any part of it is suspended in accordance with
clauses 14.1, 14.3, the
Customer must pay to Batelco the Charges until this Agreement is terminated in
accordance with the terms of this Agreement.
13.6. If the Service is suspended (but not if Batelco suspends part of the
Service) for a continuous period of twenty (20) Working Days then the Customer
may give notice to Batelco to terminate this Agreement, subject to paying any
outstanding Charges in accordance with clause 14.4.
13.7. Manama-IX is not obliged to make or keep the Connection available for
no valid Manama-IX Connection
Agreement exists between the parties;
Customer does not have at its
disposal an Autonomous System Number (ASN), assigned by an official assigning
14.1. Termination for Convenience Either Party may,
for any reason, terminate this Agreement and provision of the Service with a
prior written notice of three (3) calendar months’’ notice to take effect on or
at any time after the expiry of the Service Term.
14.2. Early Termination of a Service by the Customer. Subject to clause 14.3, Customer may, by written notice to Batelco,
terminate a Service.
14.3. Early Termination Charges. If the Customer
terminates a Service for any reason prior to the completion of the Service Term
then the Customer must pay Batelco 100% of the Rental Charges for each
cancelled Service for each month remaining in the Service Term, including a pro
rata amount for each part month commencing from the effective date of
Either Party may terminate this
Agreement immediately on written notice, if the other Party (the “Defaulting Party”):
commits a material breach of this Agreement,
which is capable of remedy, and where the Defaulting Party fails to remedy such
breach within ten (10) Working Days of receipt of a written notice from the
other Party to do so; or
commits a material breach of this
Agreement which cannot be remedied; or
is repeatedly in breach of this
is the subject of a bankruptcy
order, or becomes insolvent, or makes any arrangement or composition with or
assignment for the benefit of its creditors, or goes into voluntary (otherwise
than for reconstruction
or amalgamation) or
compulsory liquidation or a receiver or administrator is appointed over
If any of the events detailed in
clause 14.4.1 above
occur as a result of the Customer’s default, Batelco may by notice to the
Customer (setting out the reasons) suspend the Service or any part of it
without prejudice to its right to terminate this Agreement.
If Batelco terminates this
Agreement pursuant to this clause 14.4 due to the Customer’s breach, the
Customer shall pay Batelco 100% of all outstanding amounts up to and until the
end of the Service Term.
If the Customer terminates this
Agreement pursuant to this clause 14.4 due to
Batelco’s breach, Batelco will refund any apportioned Charges paid in advance
in respect of any period which ends after the date of withdrawal less any
vary the Charges as a result of
any future order or regulation issued by any governmental or regulatory body in
the Kingdom of Bahrain including the Telecommunications Regulatory Authority;
change the technical specification
of the Service, provided that any changes do not materially affect the
substance or the performance of the Services; and
alter or amend the terms of this
Agreement (including but not limited to a Service Level Agreement) at any time.
15.2. Pursuant to clause 15.1, the Customer may terminate a
Service by providing Batelco with ten (10) Working Days prior written notice if
Batelco changes any of the Charges pursuant to Clause a);
15.3. The Customer may accept or reject such changes referred to in clause 15.1 and
notify Batelco of its decision in writing within the Notice of Change Period
15.4. Batelco may terminate a Service or this Agreement if the Customer does
not accept any change pursuant to clause 15, by providing ten (10) Working Days
prior written notice to the Customer.
15.5. If the Customer accepts the proposed changes as per clause 15.1, then
the amended terms shall come into effect beginning from the expiry of the 10th
Working Day of the Notice of Change Period and shall be valid for the remainder
of the Service Term.
15.6. Batelco is entitled
to relocate Manama‐IX location within the Co-location or to other Co-locations
by providing ten (10) weeks’ written notice to Customer.
Assignment and Sub-Contracting
16.1. Batelco may assign novate
or sub-contract any of its
or obligations under
this Agreement. The Customer shall not be entitled to assign, novate,
sub-contract or otherwise dispose of any of its rights or obligations under
this Agreement without the prior written consent of Batelco, which consent
shall not be unreasonably withheld.
16.2. If Batelco uses third parties to provide the Service(s) offered, these
are not parties to the contract with the Customer.
Entire agreement and exclusion of
17.1. Save as expressly provided under this Agreement all other warranties
whether express or implied are hereby excluded to the fullest extent
permissible by law and this Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof and supersedes
all prior or contemporaneous agreements.
17.2. For the purposes of this clause a “Pre-Contractual Statement”
means a draft agreement, undertaking, representation, warranty, promise,
assurance or arrangement of any nature
whatsoever whether or not in writing and whether implied or otherwise relating
to this Agreement made or given by any party or any other person at any time
prior to the execution of this Agreement.
17.3. The Customer hereby acknowledges that it has not entered into this
Agreement in reliance upon any Pre-Contractual Statement which is not expressly
set out herein and that the Agreement supersedes and extinguishes any prior
Pre-Contractual Statements relating thereto.
17.4. The Customer shall not have any right of action against Batelco arising
out of or in connection with any
Pre-Contractual Statement except
in the case
of fraud or
dishonesty or wilful concealment.
18.1. Any notice to be given by the Customer to Batelco shall only be
effective if in writing and delivered to:
Legal and Regulatory Affairs
Headquarters, Building 1095, Road 1425 Al-Hamala 1014, Bahrain; or
18.2. Any notice to be given by Batelco to the Customer shall be effective if
in writing and delivered to the address or sent to any relevant contact for
that party set out in the Order Form.
18.3. Any such notice shall be considered to have been received by the addressee
two (2) Working Days following the date of despatch if by registered post or
air mail or simultaneously if by facsimile.
19.1. The Customer hereby represents and warrants to Batelco that it has the
full power to enter into this Agreement and that all information supplied by
the Customer to Batelco and/or entered onto the Order Form is true, accurate
and complete in all respects. Batelco shall not be liable for any losses or
damages suffered by the Customer in relation to any Service provided due to
incorrect or inaccurate information provided in the Order Form.
19.2. The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of the right
or a waiver of other rights or remedies.
No single or partial exercise of a right or remedy provided by this
Agreement or by law prevents further exercise of the right or remedy or the
exercise of another right or remedy. If
either party elects to waive a breach of this Agreement that waiver is limited
to that particular breach.
19.3. If a provision of this Agreement is, or becomes, to any extent illegal,
invalid or unenforceable, then it is the intention of the parties that it shall
to that extent be deemed not to form part of this Agreement and will not affect
the legality, validity or enforceability of any other provision of this
Agreement, which shall continue in force and effect.
19.4. Customer warrants to Batelco that, at any time during the term of the
Agreement, it has in place a valid and sufficient liability insurance covering
damage, in accordance with and appropriate to the nature and extent of its
business activities, and should in any case cover damage to the Allocated
Space, the Equipment, and any other ancillary goods and/or facility of Batelco
or of its customers or other third parties. Additionally, the Customer, at any
time during the term of the Agreement, will have the Customer Equipment
sufficiently insured against, inter alia, physical damage and theft by way of a
property damage insurance. In the event of damage to the Customer Equipment,
the Customer shall in the first instance claim the damages under its own
Dispute Resolution and Governing
that such dispute or claim shall first be referred to the
respective chief executive officers of the Parties, who shall negotiate with
each other in good faith to resolve the matter on a mutually acceptable basis;
in the event that the dispute or claim has not been resolved within
ten (10) Working Days of a referral pursuant to 20.1.1 (a) above, that it shall
be referred to the respective chairmen of the Parties, who shall negotiate with
each other in good faith to attempt to resolve such dispute or claim on a
mutually acceptable basis.
20.2. In the event that the dispute or claim has not been resolved within ten
(10) Working Days of a referral pursuant to clause 20.1.1 (b) then the
provisions of clause 20.1.3 and 20.1.4 shall apply.
20.3. Any dispute, controversy or claim arising out of or relating to this
contract in any way whatsoever, or the breach, voidance, termination or
invalidation with respect to any matter arising out of or relating to this
Agreement shall be finally determined by arbitration administered by the
Bahrain Chamber for Dispute Resolution in accordance with its Arbitration
Rules. The place of arbitration shall be Manama, Bahrain, the language of the
proceedings shall be English. The number of arbitrators shall be one. The
arbitration award shall be final, conclusive and binding on the Parties and
they each expressly waive their rights of appeal in respect of such arbitration
20.4. The Courts of England and Wales are to have exclusive jurisdiction to
enforce any arbitration award or any terms of settlement arising out of or in
connection with this Agreement and each Party irrevocably submits and agrees to
submit to the jurisdiction of Bahrain Courts. Each Party waives (and agrees not
to raise) any objection, on the ground of forum non conveniens or on any
other ground, to the taking of proceedings in the Courts of England and
Wales. Each Party also agrees that a judgment against it in proceedings
brought in England and Wales shall be conclusive and binding upon it and may be
enforced in any other jurisdiction.
20.5. Governing Law. This Agreement shall be
governed by and interpreted in accordance with the laws of England and Wales
and the parties submit to the exclusive jurisdiction of the courts of England
and in relation to all disputes.