REFERENCE OFFER SUBJECT TO CONTRACT PART II CO-MINGLING CONTENTS

Transcription

1 PART II CO-MINGLING CONTENTS 1 Definitions 2 General 3 Forecasts Co-mingling 4. Advance Point of Presence Ordering 5. Co-mingling orders 6. Works 7. Licence completion 8. Title 9. No possession 10. Termination 11. Non-merger PAGE 1 of 7

2 1. DEFINITIONS 1.1 In this Part, a reference to a paragraph, unless stated otherwise, is to a paragraph of this Part. Words, abbreviations and expressions have the meanings given in Part V. 2. GENERAL 2.1 This Part contains requirements for forecasting and ordering by the Communications Provider and procedures for the provision by BT to the Communications Provider of services and facilities for Co-mingling. 3. FORECASTS CO-MINGLING 3.1 The Communications Provider is requested to provide BT with a quarterly Advanced Capacity Planning Forecast. It is requested that the Communications Provider provides detail in the first quarter of the requirements at each MDF Site as further described in the End to End Process Manual.. 4. ADVANCED POINT OF PRESENCE ORDERING 4.1 The Communications Provider will place an order using the Advanced Point of Presence Form ( APO Request Form ) to BT, as further described in the End to End Process Manual. The APO Form shall include the Customer Preferred Date ( CPD ). The APO Request Form may be rejected by BT if any information provided by the Communications Provider would prevent BT, acting reasonably, from processing the order or if it is a duplicate order. 4.2 The Communications Provider may place an order for a Co-mingling product requesting a space only allocation. The Communications Provider may only place a valid order if the application is made 18 calendar months in advance of the date as further defined in the space only product description. 4.3 BT shall collate valid APO Request Forms from all Communications Providers during the period of Wednesday Wednesday. If the total quantity of Communications Provider APO Request Forms exceed the threshold of planned work that has been agreed with the LLU Industry Group or its successor body, BT shall negotiate with the Communications Provider to agree an alternative order placement date BT shall commence a survey of the MDF Site according to the requirements provided by the Communications Provider in the APO Request Form. BT shall provide the results of the survey to the Communications Provider within 30 Working Days of the Wednesday following the Communications Provider submitting the valid APO Request Form. PAGE 2 of 7

3 4.5 If the survey results show that the cost of provision of enablement of the environment and infrastructure for the Communications Provider at the MDF Site are in excess of the limit agreed with the LLU Industry Group, or its successor body, BT shall reject the APO Request Form for that MDF Site. The Communications Provider shall not be charged for the APO Request Form activity. 4.6 If BT is unable to meet the Communications Provider s requirements they will provide an indication of what space or product(s) may be available. BT will also state it is able to provide a counter-offer of Co-mingling facilities at such MDF Site; or BT is unable to meet the Communications Provider s requirements by reason of there being no space available at such MDF Site or that the MDF Site is to be closed On receipt of the counter-offer. The Communications Provider may: (i) (ii) (iii) accept BT s counter-offer of such space including the restrictions notified; request a visit to the relevant MDF Site at a reasonable time agreed with BT at a charge equivalent to the charge for an escorted site visit as specified from time to time in the Price List; or inform BT that it does not wish to proceed with such request. If the Communications Provider advises BT that they do not wish to proceed with the counter offer BT shall not charge them the APO Cancellation Charge. 4.7 The Contractual Delivery Date ( CDD ) shall be the Customer Preferred Date, or the date provided by BT in the survey response, whichever is the later date. 4.8 The Communications Provider shall accept or reject BT s offer, or counter offer within 5 Working Days of the provision of the survey response. The Communications Provider accepts they cannot ask for a change to the CDD unless the amendment is to extend the build delivery time. 4.9 If the Communications Provider does not place a build order, other than in accordance with paragraph 4.6, they shall be liable for the APO Cancellation Charge as specified in the Price List If the Communications Provider has placed a space only order and does not place a subsequent build order at the required order placement date advised by BT, the Licence terminated and. the space shall be released. The PAGE 3 of 7

4 Communications Provider shall be liable for the charges incurred during the period of the space only order, as defined in the Price List. 5. CO-MINGLING BUILD ORDERS 5.1 BT shall commence the building of the Communications Providers point of presence in accordance with the agreed build order. 5.2 If the Communications Provider orders Co-mingling facilities the Communications Provider shall be liable for the payment of all charges relating to the provision of such Co-mingling facilities save that if the Communications Provider by written notice to BT at any time prior to the provision of the Co-mingling facilities cancels the order, the Communications Provider shall pay the appropriate charges in accordance with the Price List. The prices are the charges defined in the accommodation section in the Price List. 5.3 BT shall process 100% of the Communications Provider s orders and, subject to the terms of this Agreement, shall deliver 98% of orders on the Contractual Delivery Date. 6. WORKS 6.1 BT shall (either itself or by instructing outside consultants on its behalf) use its Best Endeavours to obtain all necessary planning and building regulation approvals and all other necessary consents for the Works and for the proposed occupation by the Communications Provider of Co-mingling facilities. The Communications Provider shall not make any application for planning permission in respect of any MDF Site. 6.2 If BT has not handed over the Co-mingling facilities within 42 Working Days of the Contractual Delivery Date the Communications Provider may at any time thereafter serve notice on BT to terminate the provisions of this Part forthwith (insofar as they relate to the relevant MDF Site only) but without prejudice to the rights of either Party in respect of any antecedent breach of any agreement or condition herein contained and without prejudice to the obligation on the part of the Communications Provider under paragraph If BT has not handed over the Co-mingling facilities within 42 Working Days of the Contractual Delivery Date BT may at any time thereafter serve notice on the Communications Provider to terminate the provisions of this Part forthwith (insofar as they relate to the relevant MDF Site only) if the carrying out or continuation of the Works is being prevented because: there is some defect or deficiency in the relevant MDF Site that renders the Works impracticable or means the Works can only be undertaken at a cost that is unreasonable in the circumstances; PAGE 4 of 7

5 6.3.2 the Works are prevented by war, act of God, government action; or of the occurrence of any circumstances beyond BT s reasonable control; but without prejudice to the rights of either Party in respect of any antecedent breach of any agreement or condition herein contained and without prejudice to the obligation on the part of the Communications Provider under paragraph As soon as it becomes apparent to the Representative that the Contractual Delivery Date may change by more than 5 Working Days, BT shall by written notice served on the Communications Provider within 5 Working Days advise the Communications Provider of its best estimate of revised Contractual Delivery Date including full justification for such revision if the revised Contractual Delivery Date is later than the original Contractual Delivery Date. 6.5 The Communications Provider and its representatives may by prior arrangement with the Representative, or BT enter (but not more than twice) the MDF Site in order to inspect and view the state and progress of the Works and the materials used and the Communications Provider and its representatives shall comply with all and any requirements that the Building Contractor, or BT may impose with regard to such inspections. The Communications Provider and its representatives in inspecting the MDF Site may not impede or obstruct the progress of the Works nor issue any instructions to the Contractor but will address any requirement or complaint to the Representative, or BT. 6.6 BT shall have the full right and liberty at any time after the date hereof to enter into such party wall drainage or other agreements with any adjoining or adjacent owner or occupier the local authority the highway authority or any statutory undertaker as shall to be necessary to carry out the Works. 7. LICENCE COMPLETION 7.1 Subject to paragraph 7.3, a Licence relating to the Specified Floor Area shall be granted with effect from the Licence Completion Date. 7.2 Prior to the Licence Completion Date BT shall provide to the Communications Provider a handover pack in accordance with the Communications Provider s request in the APO Request Form such handover pack including the relevant keys and photograph(s) of the Specified Floor Area together with a sign-off sheet which the Communications Provider shall return to BT to acknowledge receipt. PAGE 5 of 7

6 7.3 Not later than 10 Working Days from receipt of the handover pack, the Communications Provider shall accept or reject the Co-mingling facilities. If the Communications Provider fails to notify BT within such timescale, the Communications Provider shall be deemed to have accepted the Comingling facilities. The Communications Provider may only reject the Comingling facilities if such facilities do not conform to the specification of the Co-mingling facilities. Snagging shall not be a reason for such rejection. 7.4 If the Communications Provider properly rejects the Co-mingling facilities, BT will carry out further works to ensure the Co-mingling facilities accord with the specification of the Co-mingling facilities. If either Party disagrees following rejection under paragraph 7.3, either Party may refer such Dispute to an Independent Expert under paragraph 20 of the main body. 7.5 BT shall make good any defects in the Works properly notified in writing by the Communications Provider within the defects liability period of the Building Contract as soon as possible to the extent that BT is able to enforce the defects liability provisions in the Building Contract. 7.6 The Communications Provider shall commence to pay to BT the Licence Fee in relation to the relevant Specified Floor Area on and from the Licence Completion Date whether or not the Communications Provider takes occupation on that date. 7.7 BT will provide to the Communications Provider an invoice for the Works after the Contractual Delivery Date, such invoice being payable in accordance with paragraph 11 of the main body. 7.8 If BT, due to its error, act, or omission does not deliver the Co-mingling facilities on the Contractual Delivery Date, the terms of part VI for the payment of fixed compensation shall apply. 8. TITLE 8.1 The Communications Provider shall assume the right of BT to grant a Licence and shall not require any evidence of or raise any objection requisition or enquiry in respect of BT's title to an MDF Site 9. NO POSSESSION 9.1 The Communications Provider shall not be entitled to occupation of any part of an MDF Site save for the purposes of inspecting the Co-mingling facilities in accordance with this Part until: pursuant to paragraph 17.9 of the main body the Communications Provider has either provided evidence of policies of insurance or, where the Communications Provider has not provided such evidence, PAGE 6 of 7

7 has informed BT that it is unable to do so in order that BT may effect such insurance; and the Communications Provider has demonstrated to BT s satisfaction that it complies with paragraph 6.4 of the main body. 10. TERMINATION 10.1 In the event of: a material breach on the part of the Communications Provider of its obligations in this Part which is not remedied within a reasonable time after notice from BT or BT issuing a notice to the Communications Provider that planning permission and/or any other necessary consents and approvals have been refused; or termination in accordance with paragraph 6.2 or 6.3; then the provisions of this Part (insofar as they relate to the MDF Site) will (without prejudice to any pre-existing right of action of any Party in respect of any breach by any other Party of its obligations hereunder) immediately terminate on written notice and cease to have effect and the Parties will be released from any further liability under this Part (insofar as it relates to the MDF Site) save that the Communications Provider shall pay to BT upon demand (i) (ii) any costs properly incurred by BT hereunder up to the date of such termination; and the costs properly incurred by BT up to the date of such termination and the costs properly incurred by BT in reinstating the Co-mingling facilities to the state in which it was prior to the receipt by BT of the Communications Provider s order for Co-mingling facilities in the event that BT carries out such reinstatement (which it may or may not do at its absolute discretion). 11. NON-MERGER 11.1 To the extent that they remain to be observed and performed all the provisions of this Part shall continue in full force and effect notwithstanding the completion of the Licence. PAGE 7 of 7