MTL SERVICE AGREEMENT

1. INTRODUCTION

This contract is entered into between Malawi Telecommunications Limited of MTL Complex, Lunjika House, along Moi Road, Post Office Box 537, Blantyre (hereinafter referred to as “MTL”) and the Customer, whose details appear in Section A of the first page of this document.  

2. 2. DEFINITIONS

2. • "Agreement" means this Agreement and any Schedule(s), including any amendments, variations or additions thereto from time to time.
   • “Business Day” means Monday to Friday inclusive between the hours of 08:00 AM and 05:00 PM excluding public holidays in Malawi with minimal presence outside business day/hours.
   • “BusinessNET” means an Internet access service that provides organisations with dedicated Internet connections.
   • “Connection Point” means a socket for removable plug or any device installed in the Customer’s premises to facilitate the connection of equipment to the Service.
   • “Customer” means…
   • “Customer premises equipment (CPE)” means equipment which is not part of MTL’s network and which the Customer uses for the Service.
   • “Month Period” means the period from 00:00 AM 1st day through 23:59 PM on the last day of the month
   • “Network” includes the following components that belong to MTL: switches, transmission systems, gateway routers, core routers, aggregation routers, access routers local and international connectivity to the internet from the backbone, as well as the last miles connectivity via optic fibre, copper or wireless and any other equipment, components or elements, exclusively owned, installed or managed by MTL.
   • “Party” means MTL or the Customer
   • “Service” means the Internet service provided to the Customer by MTL for a prescribed fee and as specifically indicated in the Annex 2.
   • “Telecommunications Apparatus” means devices, either belonging to MTL or which have to be purchased by the Customer that has to be installed before MTL can provide and install the Service.

 

3. PROVISION OF SERVICE
   • MTL agrees to provide the Customer with the Service on the terms and conditions of this Agreement for a fee as prescribed in Annex 2 attached hereto.
   • For operational  reasons  MTL,  in  consultation with  the  Customer,  may  vary  the technical specification of the Service.
   • MTL shall take all necessary steps to resolve any faults within the timeframes prescribed in clause 11.1 of the Service Level Agreement attached hereto as Annex 3 or within a reasonable period of time and MTL shall not be liable for any loss which the Customer suffers as a result of such fault.

 

4. MINIMUM SERVICE PERIOD

This Agreement shall begin on ………………… …. and shall run for 1 year up to the ………………….. (the “Term”) after which it shall be renewable automatically for further 1 year periods unless the Parties agree otherwise within three months before expiry of each Term.  

5. CHARGES AND PAYMENT
   • The Customer shall pay quarterly in advance the charges for the Service set out in Annex 2 as calculated from the table in Annex 1 as well as installation and other fees, if any, to be prescribed in an invoice.
   • Any late payment shall attract interest at 3% above National Bank of Malawi’s base lending rate until full liquidation thereof.
   • The charges stipulated in Annex 1 shall only apply to the existing Customer under an old pricing if there is bandwidth upgrade.
   • All charges for the Service are exclusive of value added tax (VAT) or other taxes for which, if applicable, its amount shall be added to the Customer’s bill.
   • The Service charges for each site shall commence upon completion of installation of the Telecommunications Apparatus and handing-over of the CPE for that particular site.
   • The Customer shall pay all charges herein regardless of who uses the Service.
   • Except for temporary Services, the Customer shall pay for the charges in accordance with MTL's billing cycle. If MTL begins or ceases the Service on a day that is not the first or last day of the billing period, MTL shall apportion the charges on a daily basis for the incomplete period.
   • Where the contract is terminated before the expiry of the tenure and the charge was capacity and/or duration based the customer shall pay, in arrears, the difference between the price applicable for the period up to such termination and any such capacity and/or duration based price.
6. CUSTOMER RESPONSIBILITY
   • The Customer shall be responsible for the safe custody of MTL’s Telecommunications Apparatus placed within the Customer’s premises and its proper use and shall not interfere with the apparatus unless authorised by MTL to do so.
   • If any part of MTL’s Telecommunications Apparatus is lost, destroyed or damaged (except for fair wear and tear), the Customer shall pay MTL for the replacement and/or repair costs, and, shall indemnify MTL against any claim in respect thereof.
   • The Customer shall ensure that all equipment provided by the Customer on its premises that connects to the Service will perform according to published technical specifications for such equipment, and will conform to interface requirements as set in the applicable MTL Services interface specifications.
   • The Customer shall indemnify MTL against all claims that a third party threatens or makes against MTL because of the way the Service is used or because the Service is faulty or cannot be used due to the Customer’s default.

 

7. CPE CONNECTIONS

• • Save as provided for herein, the Customer shall not allow any other person to attach, place or connect anything to the service provided.
    • The Customer’s equipment shall only be connected to MTL’s network using Connection Points and shall only be used with MTL’s network in a way that meets the relevant standards and any licences applicable to MTL unless MTL agrees otherwise which agreement may be terminated on reasonable notice or risks disconnection at MTLs expense.
    • If the Customer asks MTL to test the Customer’s equipment to make sure that it meets the relevant standards or any applicable licence, the Customer shall pay MTL the charge quoted by MTL at the relevant time.
     
    8. SERVICE MISUSE
    8. 8. • The Service will not be used:
            • For unlawful purpose or in breach of any instructions given by MTL under this Agreement
          • If MTL suspends the Service for contravention of Clause 9.1, it may refuse to restore Service until it receives an acceptable assurance from the Customer that there will be no further contravention.
     
    9. DEFAULT
       • If the Customer:
         • does not pay any charge within fifteen (15) days of it falling due or materially breaches this Agreement in any other way; or
         • does not pay any charge for the Service within fifteen (15) days of it falling due to MTL under another Agreement with MTL; or
         • is subject to bankruptcy or insolvency proceedings or under administration; or
         • does not prevent the Service being used in a way forbidden as stipulated in this Agreement; or
         • has committed any breach of the Agreement;
    MTL can (without losing or reducing any other right or remedy) either suspend the Service (including partially) temporarily without notice or terminate this Agreement immediately.
    • The Customer shall continue to be liable to pay all charges that are due for the Service during any period in which the Service is under suspension.
     
    10. TERMINATION
        • Either Party may give one month notice of intent to terminate Service if:
          • there is failure by the Customer to pay the applicable fees as stipulated herein;
          • there is persistent breach of this Agreement by either Party.
        • Either Party may terminate this Agreement on no cause upon giving 3 months’ notice to the other Party.
        • If either Party gives notice or is in breach, the Customer shall pay the monthly charge and MTL shall provide the service up to the expiry of the notice.
        • Subject to the foregoing, whichever Party gives the notice, MTL shall repay or credit any advance payment made by the Customer.
        • Where the Customer is given a discount on the basis of contract duration and capacity acquired but the agreement is terminated before the end of the Term at the Customer’s own instance or due to the Customer’s default, the Agreement shall be treated to have been for that earlier termination period hence the Customer shall pay in arrears all the applicable fees for that period in accordance with the pricing table.
    11. MTL LIABILITY
        • Subject to any other clause in this Agreement, MTL does not exclude or restrict liability for death or personal injury resulting from MTL's negligence.
        • In performing any obligation under this Agreement, MTL's duty is only to exercise the reasonable care and skill of a competent telecommunication service provider.
        • MTL is not liable in contract, tort (or delict) or otherwise (including liability for negligence) for direct or indirect loss of business, revenue, profits, anticipated savings, wasted expenditure, corruption or deconstruction of data or for any other loss whatsoever.
        • MTL's liability in contract, tort (or delict) or otherwise (including liability for negligence) under or in connection with this Agreement is limited to K1 million for any event or series of related events and K2 million for all events in any period of twelve (12) months
    12. VARIATIONS
        • MTL reserves the right to vary the terms and conditions of this Agreement by giving the Customer one month notice before such variation is to take effect, except in the case of a Third Party Variation as a result of a change in:
     
    • the law or a decision of MACRA or other relevant authority;
    • any service of any other operator on which MTL relies to provide the Service.
    • A Third Party Variation shall take effect as soon as the law or underlying services changes.
    • If the variation (other than a Third Party Variation) materially prejudices the Customer, the Customer may before the variation takes effect give written notice to MTL objecting to the variation, in which case the variation shall not apply to the Customer, unless otherwise agreed which agreement shall not be unreasonably withheld or delayed.
    13. NOTICES
        • Any notice herein shall be sent by prepaid post, fax, left at a Party’s principal place of business or email or such other address as the Parties shall nominate for that purpose and any notice so delivered shall be deemed to have been received:
          • if sent by prepaid post(14days); fax and email within 48 hours from the time the notice was transmitted.
          • The Parties choose as their domicilia citandi et executandi their respective addresses set out on the Page 1 of this document.
    14. FORCE MAJEURE EVENTS
    Neither Party shall be liable for interruptions in the provision of the service caused by or resulting from declared or undeclared war, sabotage, blockade, revolution, police action, riots or disorder, embargoes or quasi-government action, acts of God, fire, floods, earthquakes, storms, tides or tidal waves, explosion, accident, radiation, labour unrest or epidemics or quarantine restrictions and other events.
    15. TECHNICAL SPECIFICATIONS
    The technical specifications of the service shall be as specified in Appendix I of this document.
    16. Dispute Resolution
    If an amicable settlement of a dispute is not possible, the same shall be determined in accordance with the Arbitration Act Cap 6:01 of the Laws of Malawi.  
    17. GENERAL PROVISIONS
        • Any amendments, variations or additions to this Agreement shall be made in writing by the parties and signed by their duly authorized officers.
        • A party may waive any rights under this Agreement only by written waiver duly signed by such party, and no failure to exercise or delay in exercising a right under this Agreement shall constitute a waiver of such right.
        • The invalidity or unenforceability of any provision or the Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.
        • Neither Party may transfer, assign, sub-licence or subcontract any rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
        • This Agreement may be executed in counterparts.