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EXHIBIT 10.34
CONFIDENTIAL TREATMENT
REQUESTED
WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCEND(TM) SWITCHED SERVICES
TELECOMMUNICATIONS SERVICES AGREEMENT
This TELECOMMUNICATIONS SERVICES AGREEMENT (the "TSA") is entered
into as of the 21st day of January, 1999, by and between WORLDCOM NETWORK
SERVICES, INC., a Delaware corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WORLDCOM") and MAXXIS COMMUNICATIONS,
INC., a Georgia corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("CUSTOMER").
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SWITCHED SERVICES; OTHER DOCUMENTS; START OF SERVICE.
(A) Services WorldCom agrees to provide and Customer agrees to
accept and pay for switched telecommunications services and other
associated services (collectively the "SWITCHED SERVICES") as further
described in the "SERVICE SCHEDULE" attached hereto and incorporated
herein by reference, which describes the particular services, specific
terms and other information necessary or appropriate for WorldCom to
provide the Service to Customer. The Switched Services provided by
WorldCom are subject to (i) the terms and conditions contained in this
TSA and the Program Enrollment Terms (the "PET") which are attached
hereto and incorporated herein by reference, (ii) the rates and
discounts set forth in the applicable Rate and Discount Schedule (the
"RATE SCHEDULE") attached hereto and incorporated herein by reference,
and (iii) each Service Request (described below) which is accepted
hereunder. The PET, as subscribed to by the parties, shall set forth
the Effective Date, the Service Term, Customer's minimum monthly
commitment, if any, and other information necessary to provide the
Switched Services under this TSA. In the event of a conflict between
the terms of this TSA, the PET, the Service Schedule, the Rate
Schedule and the Service Request(s), the following order of precedence
will prevail: (1) the PET, (2) the Rate Schedule, (3) the Service
Schedule, (4) this TSA, and (5) Service Request(s). This TSA, the PET,
the Service Schedule and the applicable Rate and Discount Schedule are
sometimes collectively referred to as the "AGREEMENT".
(B) Service Requests Customer's requests to initiate or cancel
Switched Services shall be described in an appropriate WorldCom
Service Request ("SERVICE REQUEST"). A Service Request may consist of
machine readable tapes, facsimiles or other means approved by
WorldCom. Further, Service Requests shall specify all reasonable
information, as determined by WorldCom, necessary or appropriate for
WorldCom to provide the Switched Service(s) in question, which shall
include without limitation, the type, quantity and end point(s) (when
necessary) of circuits comprising a Service
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Interconnection as described in the applicable Service Schedules, or
automatic number identification ("ANI") information relevant to the
Switched Service(s), the Requested Service Date, and charges, if any,
relevant to the Switched Services described in the Service Request.
After WorldCom's receipt and verification of a valid Service Request
for SWITCHED ACCESS Service (as defined in the Service Schedule)
requiring a change in the primary interexchange carrier ("PIC"),
WorldCom agrees to (i) submit the ANI(s) relevant to such Service
Requests to the following local exchange carriers ("LECS") (with which
WorldCom currently has electronic interface capabilities) within ten
(10) days: Ameritech, ▇▇▇▇ Atlantic, BellSouth, Nynex, Pacific ▇▇▇▇,
Southwestern ▇▇▇▇, US West, GTE and United, and (ii) submit the ANI(s)
relevant to such Service Requests to those LECs with which WorldCom
does not have electronic interface capabilities within a reasonable
time.
(C) Start of Service WorldCom's obligation to provide and
Customer's obligation to accept and pay for non-usage sensitive charges
for Switched Services shall be binding to the extent provided for in
this Agreement upon the submission of an acceptable Service Request to
WorldCom by Customer. Customer's obligation to pay for usage sensitive
charges for Switched Services shall commence with respect to any
Switched Service as of the date the Switched Service in question is
made available to and used by Customer ("START OF SERVICE"), but in no
event later than the "REQUESTED SERVICE DATE" if such Switched Service
is available for Customer's use as of such Requested Service Date.
Start of Service for particular Services shall be further described in
the Service Schedule relevant to the Switched Services in question.
2. CANCELLATION.
(A) Cancellation Charge At any time after the Effective Date,
Customer may cancel this Agreement if Customer provides written
notification thereof to WorldCom not less than thirty (30) days prior
to the effective date of cancellation. In such case (or in the event
WorldCom terminates this Agreement as provided in Section 7), Customer
shall pay to WorldCom all charges for Services provided through the
effective date of such cancellation plus a cancellation charge (the
"CANCELLATION CHARGE") equal to one hundred percent (100%) of
Customer's commitment(s), if any, (as described in the PET) that would
have become due for the unexpired portion of the Service Term.
(B) Liquidated Damages It is agreed that WorldCom's damages in the
event Customer cancels this Agreement shall be difficult or impossible
to ascertain. The provision for a Cancellation charge in Subsection
2(A) above is intended, therefore, to establish liquidated damages in
the event of a cancellation and is not intended as a penalty.
(C) Cancellation Without Charge Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel this
Agreement without incurring any cancellation charge if (i) WorldCom
fails to provide a network as warranted in Section 8 below; (ii)
WorldCom fails to deliver call detail records promptly based on the
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frequency selected by Customer (i.e., monthly, weekly or daily); or
(iii) WorldCom fails to submit ANI(s) relevant to such Service
Requests to the LECs within the time period described in Subsection
1(B) above. Provided, however, Customer must give WorldCom written
notice of any such default and an opportunity to cure such default
within five (5) days of the notice. In the event WorldCom fails to
cure any such default within the five-day period on more than three
(3) occasions within any six (6) month period, Customer may cancel
this Agreement without incurring any cancellation charge.
3. CUSTOMER'S END USERS.
(A) End Users Customer will obtain and upon WorldCom's request
provide WorldCom (within two (2) business days of the date of the
request) a written Letter of Agency ("LOA") acceptable to WorldCom [or
with any other means approved by the Federal Communications Commission
("FCC") or any applicable public utility commission ("PUC")], for each
ANI indicating the consent of such end user of Customer ("END USER")
to be served by Customer and transferred (by way of change of such End
User's designated PIC) to the WorldCom network prior to order
processing. Each LOA will provide, among other things, that the End
User has consented to the transfer being performed by Customer or
Customer's designee. When applicable, Customer will be responsible for
notifying its End Users, in writing (or by any other means approved by
the FCC) that (i) a transfer charge will be reflected on their LEC
▇▇▇▇ for effecting a change in their PIC, (ii) the entity name under
which their interstate, intrastate and/or operator services will be
billed (if different from Customer), and (iii) the "primary" telephone
number(s) to be used for maintenance and questions concerning their
long distance service and/or billing. Customer agrees to send WorldCom
a copy of the documentation Customer uses to satisfy the above
requirements promptly upon request of WorldCom. WorldCom may change
the foregoing requirements for Customer's confirming orders and/or for
notifying End Users regarding the transfer charge at any time in order
to conform with applicable FCC and state regulations. Provided,
however, Customer will be solely responsible for ensuring that the
transfer of End Users to the WorldCom network conforms with applicable
FCC and state regulations, including without limitation, the
regulations established by the FCC with respect to verification of
orders for long distance service generated by telemarketing as
promulgated in 47 C.F.R., Part 64, Subpart K,ss.64.1100 or any
successor regulation(s).
(B) Transfer Charges/Disputed Transfers Customer agrees that it is
responsible for (i) all charges incurred by WorldCom to change the PIC
of End Users to the WorldCom network, (ii) all charges incurred by
WorldCom to change End Users back to their previous PIC arising from
disputed transfers to the WorldCom network plus, at WorldCom's option,
an administrative charge equal to twenty percent (20%) of such
charges, and (iii) any other damages suffered by or awards against
WorldCom resulting from disputed transfers.
(C) Excluded ANIs WorldCom has the right to reject any ANI supplied
by Customer for any of the following reasons: (i) WorldCom is not
authorized to provide or does not
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provide long distance services in the particular jurisdiction in which
the ANI is located, (ii) a particular ANI submitted by Customer is not
in proper form, (iii) Customer is not certified to provide long
distance services in the jurisdiction in which the ANI is located,
(iv) Customer is in material default of this Agreement, (v) Customer
fails to cooperate with WorldCom in implementing reasonable
verification processes determined by WorldCom to be necessary or
appropriate in the conduct of business, or (vi) any other circumstance
reasonably determined by WorldCom which could adversely affect
WorldCom's performance under this Agreement or WorldCom's general
ability to transfer its other customers or other end users to the
WorldCom network, including without limitation, WorldCom's ability to
electronically effect PIC changes with the LECs. In the event WorldCom
rejects an ANI, WorldCom will notify Customer of its decision
specifically describing the rejected ANI and the reason(s) for
rejecting that ANI, and will not incur any further liability under
this Agreement with regard to that ANI. Further, any ANI requested by
Customer for Switched Services may be deactivated by WorldCom if no
Switched Services ▇▇▇▇▇▇▇▇ relevant thereto are generated in any three
(3) consecutive calendar month/billing periods. WorldCom will be under
no obligation to accept ANIs within the last full calendar month
period preceding the scheduled expiration of the Service Term.
(D) Records Customer will maintain documents and records
("RECORDS") supporting Customer's re-sale of Switched Services,
including, but not limited to, appropriate and valid LOAs from End
Users for a period of not less than (twelve) 12 months or such longer
period as may be required by applicable law, rule or regulation.
Customer shall indemnify WorldCom for any costs, charges or expenses
incurred by WorldCom arising from disputed PIC selections involving
Switched Services to be provided to Customer for which Customer cannot
produce an appropriate LOA relevant to the ANI and PIC charge in
question, or when WorldCom is not reasonably satisfied that the
validity of a disputed LOA has been resolved.
(E) Customer Service Customer will be solely responsible for
billing its End Users and providing such End Users with customer
service. Customer agrees to notify WorldCom as soon as reasonably
possible in the event an End User notifies Customer of problems
associated with the Switched Services, including without limitation,
excess noise, echo, or loss of service.
4. CUSTOMER'S RESPONSIBILITIES.
(A) Expedite Charges In the event Customer requests expedited
services and/or changes to Service Requests and WorldCom agrees to
such request, WorldCom will pass through the charges assessed by any
supplying parties (e.g., local access providers) for such expedited
charges and/or changes to Service Requests involved at the same rate
to Customer. WorldCom may further condition its performance of such
request upon Customer's payment of such additional charges to
WorldCom.
(B) Fraudulent Calls Customer shall indemnify and hold WorldCom
harmless from
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all costs, expenses, claims or actions arising from fraudulent calls
of any nature which may comprise a portion of the Switched Services to
the extent that the party claiming the call(s) in question to be
fraudulent is (or had been at the time of the call) an End User of
such Switched Services through Customer or an end user of the Switched
Services through Customer's distribution channels. Customer shall not
be excused from paying WorldCom for Switched Services provided to
Customer or any portion thereof on the basis that fraudulent calls
comprised a corresponding portion of the Switched Services. In the
event WorldCom discovers fraudulent calls being made (or reasonably
believes fraudulent calls are being made), nothing contained herein
shall prohibit WorldCom from taking immediate action (without notice
to Customer) that is reasonably necessary to prevent such fraudulent
calls from taking place, including without limitation, denying
Switched Services to particular ANIs or terminating Switched Services
to or from specific locations.
5. CHARGES AND PAYMENT TERMS.
(A) Payment WorldCom ▇▇▇▇▇▇▇▇ for Switched Services hereunder are
made on a monthly basis (or such other basis as may be mutually agreed
to by the parties) following Start of Service. Subject to Subsection
5(C) below, Switched Services shall be billed at the rates set forth
in the applicable Rate and Discount Schedule attached hereto. Customer
will be notified of WorldCom's time of day rate periods (including
WorldCom Recognized National Holidays). Discounts, if any, applicable
to the rates for certain Services are set forth in the Rate and
Discount Schedule. Customer will pay all undisputed charges relative
to each WorldCom invoice for Switched Services within thirty (30) days
of the invoice date set forth on each WorldCom invoice to Customer
("DUE DATE"). If payment is not received by WorldCom on or before the
Due Date, Customer shall also pay a late fee in the amount of the
lesser of one and one-half percent (1 1/2%) of the unpaid balance of
the charges for Switched Services rendered per month or the maximum
lawful rate under applicable state law.
(B) Taxes Customer acknowledges and understands that WorldCom
computes all charges herein exclusive of any applicable federal, state
or local use, excise, gross receipts, sales and privilege taxes,
duties, fees or similar liabilities (other than general income or
property taxes), whether charged to or against WorldCom or Customer
because of the Switched Services furnished to Customer ("ADDITIONAL
CHARGES"). Customer shall pay such Additional Charges in addition to
all other charges provided for herein. Customer will not be liable for
certain Additional Charges if Customer provides WorldCom with an
appropriate exemption certificate.
(C) Modification of Charges WorldCom reserves the right to
eliminate particular Switched Services and/or modify charges for
particular Switched Services (which charge modifications shall not
exceed then-current generally available WorldCom charges for comparable
services), upon not less than sixty (60) days prior notice to Customer,
which notice will state the effective date for the charge modification.
In the event WorldCom notifies Customer of the elimination of a
particular Switched Service and/or an increase
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in the charges, Customer may terminate this Agreement without
incurring a cancellation charge only with respect to the Switched
Service(s) affected by the increase in charges. In order to cancel
such Switched Service(s), Customer must notify WorldCom, in writing,
at least thirty (30) days prior to the effective date of the increase
in charges. In the event Customer cancels its subscription to a
particular Switched Service as described in this Subsection 5(C),
WorldCom and Customer agree to negotiate in good faith concerning
Customer's minimum monthly commitment, if any, described in the PET.
(D) Billing Disputes Notwithstanding the foregoing, amounts
reasonably disputed by Customer (along with late fees attributable to
such amounts) shall apply but shall not be due and payable for a
period of sixty (60) days following the Due Date therefor, provided
Customer: (i) pays all undisputed charges on or before the Due Date,
(ii) presents a written statement of any billing discrepancies to
WorldCom in reasonable detail on or before the Due Date of the invoice
in question, and (iii) negotiates in good faith with WorldCom for the
purpose of resolving such dispute within said sixty (60) day period.
In the event such dispute is mutually agreed upon and resolved in
favor of WorldCom, Customer agrees to pay WorldCom the disputed
amounts together with any applicable late fees within ten (10) days of
the resolution (the "ALTERNATE DUE DATE"). In the event such dispute
is mutually agreed upon and resolved in favor of Customer, Customer
will receive a credit for the disputed charges in question and the
applicable late fees. In the event WorldCom has responded to
Customer's dispute in writing and the parties fail to mutually resolve
or settle the dispute within such sixty (60) day period (unless
WorldCom has agreed in writing to extend such period) all disputed
amounts together with late fees shall become due and payable, and this
provision shall not be construed to prevent Customer from pursuing any
available legal remedies. WorldCom shall not be obligated to consider
any Customer notice of billing discrepancies which are received by
WorldCom more than sixty (60) days following the Due Date of the
invoice in question.
6. CREDIT; CREDITWORTHINESS:
(A) Credit Customer's execution of this Agreement signifies
Customer's acceptance of WorldCom's initial and continuing credit
approval procedures and policies. WorldCom reserves the right to
withhold initiation or full implementation of any or all Switched
Services under this Agreement pending WorldCom's initial satisfactory
credit review and approval thereof which may be conditioned upon terms
specified by WorldCom, including, but not limited to, security for
payments due hereunder in the form of a cash deposit or other means.
WorldCom reserves the right to modify its requirements, if any, with
respect to any security or other assurance provided by Customer for
payments due hereunder in light of Customer's actual usage when
compared to projected usage levels upon which any security or
assurance requirement was based.
(B) Creditworthiness If at any time there is a material adverse
change in Customer's Creditworthiness, then in addition to any other
remedies available to WorldCom,
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WorldCom may elect, in its sole discretion, to exercise one or more of
the following remedies: (i) cause Start of Service for Switched
Services described in a previously executed Service Request to be
withheld; (ii) cease providing Switched Services pursuant to a
Suspension Notice in accordance with Section 7(A); (iii) decline to
accept a Service Request or other requests from Customer to provide
Switched Services which WorldCom may otherwise be obligated to accept
and/or (iv) condition its provision of Switched Services or acceptance
of a Service Request on Customer's assurance of payment which shall be
a deposit or such other means to establish reasonable assurance of
payment. An adverse material change in Customer's creditworthiness
shall include, but not be limited to: (i) Customer's material default
of its obligations to WorldCom under this or any other agreement with
WorldCom; (ii) failure of Customer to make full payment of all
undisputed charges due hereunder on or before the Due Date (or
disputed charges on or before the Alternate Due Date) on three (3) or
more occasions during any period of twelve (12) or fewer months or
Customer's failure to make such payment on or before the Due Date (or
the Alternate Due Date, if applicable) in any two (2) consecutive
months; (iii) acquisition of Customer (whether in whole or by majority
or controlling interest) by an entity which is insolvent, which is
subject to bankruptcy or insolvency proceedings, which owes past due
amounts to WorldCom or any entity affiliated with WorldCom or which is
a materially greater credit risk than Customer; or, (iv) Customer's
being subject to or having filed for bankruptcy or insolvency
proceedings or the legal insolvency of Customer.
7. REMEDIES FOR BREACH.
(A) Suspension of Service In the event all undisputed charges due
pursuant to WorldCom's invoice are not paid in full by the Due Date or
disputed charges owed by Customer, if any, are not paid in full by the
Alternate Due Date, WorldCom shall have the right, after giving
Customer at least ten (10) days prior notice and opportunity to pay
such charges within such 10-day period, to suspend all or any portion
of the Switched Services to Customer ("SUSPENSION NOTICE") until such
time (designated by WorldCom in its Suspension Notice) as Customer has
paid in full all undisputed charges then due to --- WorldCom,
including any late fees. Following such payment, WorldCom shall
reinstitute Switched Services to Customer only ---- when Customer
provides WorldCom with satisfactory assurance of Customer's ability to
pay for such Switched Services (i.e., a deposit, letter of credit or
other means acceptable to WorldCom) and Customer's advance payment of
the cost of reinstituting such Switched Services. If Customer fails to
make the required payment by the date set forth in the Suspension
Notice, Customer will be deemed to have canceled the Services
suspended effective as of the date of suspension which cancellation
shall not relieve Customer for payment of applicable cancellation
charges as described in Section 2.
(B) Disconnection of Service In the event Customer is in material
breach of this Agreement, including without limitation, failure to pay
all undisputed charges due hereunder by the date stated in the
Suspension Notice described in Subsection 7(A) above, WorldCom shall
have the right, after giving Customer at least five (5) days prior
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written notice and opportunity to cure (which notice may be given
instead of or in conjunction with the Suspension Notice described in
Subsection 7(A) above), and in addition to foreclosing any security
interest WorldCom may have, to (i) disconnect all or any portion the
Switched Services being provided hereunder and/or terminate this
Agreement; (ii) withhold billing information from Customer; and/or
(iii) contact the End Users (for whom calls are originated and
terminated solely over facilities comprising the WorldCom network)
directly and ▇▇▇▇ such End Users directly until such time as WorldCom
has been paid in full for the amount owed by Customer. If Customer
fails to make payment by the date stated in the Suspension Notice and
WorldCom, after giving Customer five (5) days prior written notice,
terminates this Agreement as provided in this Section 7, such
termination shall not relieve Customer for payment of applicable
cancellation charges as described in Section 2 above.
8. WARRANTY. WorldCom will use reasonable efforts under the circumstances
to maintain its overall network quality. The quality of Switched Services
provided hereunder shall be consistent with telecommunications common carrier
industry standards, government regulations and sound business practices.
WORLDCOM MAKES NO OTHER WARRANTIES ABOUT THE SWITCHED SERVICES PROVIDED
HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. LIABILITY; GENERAL INDEMNITY; REIMBURSEMENT.
(A) Limited Liability IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE
TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF
REVENUE, LOSS OF CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF
PROFITS ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE
OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) General Indemnity In the event parties other than Customer
(e.g., Customer's End Users) shall have use of the Switched Services
through Customer, then Customer agrees to forever indemnify and hold
WorldCom, its affiliated companies and any third-party provider or
operator of facilities employed in provision of the Switched Services
harmless from and against any and all claims, demands, suits, actions,
losses, damages, assessments or payments which those parties may
assert arising out of or relating to any defect in the Switched
Services.
(C) Reimbursement Customer agrees to reimburse WorldCom for all
reasonable costs and expenses incurred by WorldCom due to WorldCom's
direct participation (either as a party or witness) in any
administrative, regulatory or criminal proceeding concerning Customer
if WorldCom's involvement in said proceeding is based solely on
WorldCom's provision of Switched Services to Customer.
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10. FORCE MAJEURE. If WorldCom's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any law,
order, regulation, direction, action or request of the United States
government, or state or local governments, or of any department, agency,
commission, court, bureau, corporation or other instrumentality of any one or
more such governments, or of any civil or military authority, or by national
emergency, insurrection, riot, war, strike, lockout or work stoppage or other
labor difficulties, or supplier failure, shortage, breach or delay, then
WorldCom shall be excused from such performance on a day-to-day basis to the
extent of such restriction or interference. WorldCom shall use reasonable
efforts under the circumstances to avoid or remove such causes or
nonperformance and shall proceed to perform with reasonable dispatch whenever
such causes are removed or cease.
11. STATE CERTIFICATION. Customer warrants that in all jurisdictions in
which it provides long distance services that require certification, it has
obtained the necessary certification from the appropriate governmental
authority and, if required by WorldCom, agrees to provide proof of such
certification acceptable to WorldCom. In the event Customer is prohibited,
either on a temporary or permanent basis, from continuing to conduct its
telecommunications operations in a given state, Customer shall (i) immediately
notify WorldCom by facsimile, and (ii) send written notice to WorldCom within
twenty-four (24) hours of such prohibition.
12. INTERSTATE/INTRASTATE SERVICE. Except with respect to Services
specifically designated as intrastate Services or international Services, the
rates provided to Customer in the Service Schedule are applicable only to
switched Services if such Switched Services are used for carrying interstate
telecommunications (i.e., Switched Services subject to FCC jurisdiction).
WorldCom shall not be obligated to provide Switched Services with end points
within a single state or Switched Services which originate/terminate at points
both of which are situated within a single state. In those states where
WorldCom is authorized to provide intrastate service (i.e., telecommunications
transmission services subject to the jurisdiction of state regulatory
authorities), WorldCom will, at its option, provide intrastate Switched
Services pursuant to applicable state laws, regulations and applicable tariff,
if any, filed by WorldCom with state regulatory authorities as required by
applicable law.
13. AUTHORIZED USE OF WORLDCOM NAME; PRESS RELEASES. Without WorldCom's
prior written consent, Customer shall not (i) refer to itself as an authorized
representative of WorldCom whenever it refers to the Switched Services in
promotional, advertising or other materials, or (ii) use WorldCom's logos,
trade marks, service marks, or any variations thereof in any of its
promotional, advertising or other materials. Additionally, Customer shall
provide to WorldCom for its prior review and written approval, all promotions,
advertising or other materials or activity using or displaying WorldCom's name
or the Services to be provided by WorldCom. Customer agrees to change or
correct, at Customer's expense, any such material or activity which WorldCom,
in its sole judgment, determines to be inaccurate, misleading or otherwise
objectionable. Customer is explicitly authorized to only use the following
statements in its sales literature or if in response to an inquiry by
Customer's end user: (i) "Customer utilizes the WorldCom network", (ii)
"Customer utilizes WorldCom's facilities", (iii)
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"WorldCom provides only the network facilities", and (iv) "WorldCom is our
network services provider". Except as specifically provided in this Section 13,
the parties further agree that any press release, advertisement or publication
generated by a party regarding this Agreement, the Services provided hereunder
or in which a party desires to mention the name of the other party or the other
party's patent or affiliated company(ies), will be submitted to the
non-publishing party for its written approval prior to publication.
14. NOTICES. Notices under this Agreement shall be in writing and
delivered to the person identified below at the offices of the parties as they
appear below or as otherwise provided for by proper notice hereunder. Customer
shall notify WorldCom in writing if Customer's billing address is different
than the address shown below. The effective date for any notice under this
Agreement shall be the date of actual receipt of such notice by the appropriate
party, notwithstanding the date of mailing or transmittal via hand delivery or
facsimile.
IF TO WORLDCOM: WorldCom Network Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: Carrier Sales Dept.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
IF TO CUSTOMER: Maxxis Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Exec. VP
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
15. NO-WAIVER. No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented. A consent to waiver of or excuse for a breach or default by either
party, whether express or implied, shall not constitute a consent to, waiver
of, or excuse for any different or subsequent breach or default.
16. PARTIAL INVALIDITY; GOVERNMENT ACTION.
(A) Partial Invalidity If any part of any provision of this
Agreement or any other agreement, document or writing given pursuant to
or in connection with this Agreement shall be invalid or unenforceable
under applicable law, rule or regulation, that part shall be
ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of that provision or the remaining
provisions of this Agreement. In such event, Customer and WorldCom will
negotiate in good faith with respect to any such invalid or
unenforceable part to the extent necessary to render such part valid
and enforceable.
(B) Government Action Upon thirty (30) days prior notice, either
party shall have the right, without liability to the other, to cancel
an affected portion of the Switched
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Service if any material rate or term contained herein and relevant to
the affected Switched Service is substantially changed (to the
detriment of the terminating party) or found to be unlawful or the
relationship between the parties hereunder is found to be unlawful by
order of the highest court of competent jurisdiction to which the
matter is appealed, the FCC, or other local, state or federal
government authority of competent jurisdiction.
17. EXCLUSIVE REMEDIES. Except as otherwise specifically provided for
herein, the remedies set forth in this Agreement comprise the exclusive
remedies available to either party at law or in equity.
18. USE OF SERVICE. Upon WorldCom's acceptance of a Service Request
hereunder, WorldCom will provide the Switched Services specified therein to
Customer upon condition that such Switched Services shall not be used for any
unlawful purpose. The provision of Switched Services will not create a
partnership or joint venture between the parties or result in a joint
communications service offering to any third parties, and WorldCom and Customer
agree that this Agreement, to the extent it is subject to FCC regulation, is an
inter-carrier agreement which is not subject to the filing requirements of
Section 211(a) of the Communications Act of 1934 (47 U.S.C. ss. 211(a)) as
implemented in 47 C. F.R. ss. 43.51.
19. CHOICE OF LAW; FORUM.
(A) Law This Agreement shall be construed under the laws of the
State of Oklahoma without regard to choice of law principles.
(B) Forum Any legal action or proceeding with respect to this
Agreement may be brought in the Courts of the State of Oklahoma in and
for the County of Tulsa or the United States of America for the
Northern District of Oklahoma. By execution of this Agreement, both
Customer and WorldCom hereby submit to such jurisdiction, hereby
expressly waiving whatever rights may correspond to either of them by
reason of their present or future domicile. In furtherance of the
foregoing, Customer and WorldCom hereby agree to service by U.S. Mail
at the notice addresses referenced in Section 14. Such service shall
be deemed effective upon the earlier of actual receipt or seven (7)
days following the date of posting.
20. PROPRIETARY INFORMATION.
(A) Confidential Information The parties understand and agree that
the terms and conditions of this Agreement (but not the existence
thereof), all documents referenced herein (including invoices to
Customer for Switched Services provided hereunder), communications
between the parties regarding this Agreement or the Switched Services
to be provided hereunder (including price quotes to Customer for any
services proposed to be provided or actually provided hereunder), as
well as such information relevant to any other agreement between the
parties (collectively "CONFIDENTIAL INFORMATION"), are confidential as
between Customer and WorldCom.
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12
(B) Limited Disclosure A party shall not disclose Confidential
Information (unless subject to discovery or disclosure pursuant to
legal process), to any other party other than the directors, officers,
and employees of a party or a party's agents including their
respective attorneys, consultants, brokers, lenders, insurance
carriers or bona fide prospective purchasers who have specifically
agreed in writing to nondisclosure of the terms and conditions hereof.
Any disclosure hereof required by legal process shall only be made
after providing the non-disclosing party with notice thereof in order
to permit the non-disclosing party to seek an appropriate protective
order or exemption. Violation by a party or its agents of the
foregoing provisions shall entitle the non-disclosing party, at its
option, to obtain injunctive relief without a showing of irreparable
harm or injury and without bond.
(C) Survival of Confidentiality The provisions of this Section 20
will be effective as of the date of this Agreement and remain in full
force and effect for a period which will be the longer of (i) one (1)
year following the date of this Agreement, or (ii) one (1) year from
the termination of all Services hereunder.
21. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that Customer shall not assign or transfer its
rights or obligations under this Agreement without the prior written consent of
WorldCom, which consent shall not be unreasonably withheld or delayed, and
further provided that any assignment or transfer without such consent shall be
void.
22. GENERAL.
(A) Survival of Terms The terms and provisions contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by the parties hereto shall so survive the
completion of performance and termination of this Agreement,
including, without limitation, provisions for indemnification and the
making of any and all payments due hereunder.
(B) Headings Descriptive headings in this Agreement are for
convenience only and shall not affect the construction of this
Agreement.
(C) Industry Terms Words having well-known technical or trade
meanings shall be so construed, and all listings of items shall not be
taken to be exclusive, but shall include other items, whether similar
or dissimilar to those listed, as the context reasonably requires.
(D) Rule of Construction No rule of construction requiring
interpretation against the drafting party hereof shall apply in the
interpretation of this Agreement.
23. ENTIRE AGREEMENT. This Agreement consists of (i) all the terms and
conditions
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13
contained herein, and (ii) all documents incorporated herein specifically by
reference. This Agreement constitutes the complete and exclusive statement of
the understandings between the parties and supersedes all proposals and prior
agreements (oral or written) between the parties relating to the Switched
Services provided hereunder. No subsequent agreement between the parties
concerning the Switched Services shall be effective or binding unless it is
made in writing and subscribed to by Customer and WorldCom.
24. OTHER AGREEMENTS. Customer acknowledges and agrees that this Agreement
and the Switched Services described herein may not be combined with any other
switched services products or services offered by WorldCom, WorldCom's parent
company or WorldCom's affiliates. Additionally, Customer acknowledges and
agrees that:
(A) Current Services As of the Effective Date of this Agreement,
(i) all switched telecommunications services ("CURRENT SERVICES")
offered by WorldCom, (formerly WilTel, Inc.), WorldCom's parent
company, WorldCom, Inc. (formerly LDDS Communications, Inc.) or any
of WorldCom's affiliates, including without limitation, IDB WorldCom
Services, Inc. (hereinafter referred to as the "WORLDCOM GROUP"),
which are currently being provided Customer (which for purposes of
this Section 24 will include Customer's parent company, Customer's
subsidiaries and any other entities under common control with
Customer; hereinafter referred to as the "CUSTOMER GROUP") pursuant to
existing service agreements ("EXISTING AGREEMENTS") will be canceled
and no longer in force or effect except for charges or credits due for
Current Services rendered as of the Effective Date of this Agreement
and provisions intended to survive termination, such as limitation of
liability, indemnification and confidentiality, and (ii) all Current
Services provided a member of the Customer Group by a member of the
WorldCom Croup will be provisioned under the terms and conditions of
this TSA. Simultaneous with the execution of this Agreement, if
applicable, Customer shall cause all members of the Customer Group to
agree to the cancellation of such Existing Agreements and the
provision of Current Services under the terms and conditions of this
Agreement and Customer agrees to provide WorldCom with reasonable
documentation evidencing such agreement.
(B) Third Party Agreements If Customer acquires or merges or
combines with a third party after the Effective Date of this
Agreement, and such third party has existing agreement(s) with a
member of the WorldCom Group (collectively referred to as the "THIRD
PARTY AGREEMENTS") for the provision of switched telecommunications
services ("THIRD PARTY EXISTING SERVICES"), then ninety (90) days
following the date of such acquisition, merger or combination (or such
earlier date contained in a written notice from Customer to WorldCom)
(the "TRANSFER DATE"), (i) the Third Party Agreements will be canceled
and no longer in force or effect except for commitments, if any,
contained in such Third Party Agreements and charges and credits due
for Services rendered prior to the Transfer Date, (ii) Third Party
Existing Services will be provisioned under this Agreement, and (iii)
the aggregate commitment(s) (e.g., revenue, volume, minute, etc.)
remaining under such Third Party Agreements, if any, shall be added on
a pro rata basis to the age commitment(s), if any, existing under this
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Agreement. Simultaneous with the closing of such acquisition,
combination or merger, Customer will cause such third party and all of
its affiliates who are parties to such Third Party Agreements, to
agree to the cancellation of such Third Party Agreements and the
provision of Third Party Existing Services under the terms and
conditions of this Agreement and Customer agrees to provide WorldCom
with reasonable documentation evidencing such agreement. In the event
any Third Party Agreement(s) have a provision similar to the provision
contained herein, the parties agree to negotiate in good faith
concerning which agreement (i.e., this Agreement or any Third Party
Agreement) shall survive and which agreement(s) shall be terminated.
Example: Assume (i) Customer's Commitment is ****, (ii)
there are twenty-four (24) months remaining in the Service
Term of this Agreement, and (iii) Customer acquires a third
party who has an existing switched telecommunications
services agreement with a member of the WorldCom Group which
contains a minimum monthly revenue commitment of **** and
has ten (10) months remaining in the term of such agreement.
Customer's "new" Commitment will be **** for the remaining
twenty-flour (24) months in the Service Term {**** + [(****
x 10)/24]}.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement as of the dates set forth below which Agreement will be
effective as described in the PET attached hereto.
WORLDCOM NETWORK SERVICES, INC. MAXXIS COMMUNICATIONS, INC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- ----------------------------
(Signature) (Signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------- --------------------------------
(Print Name) (Print Name)
Vice President Carrier Sales President/CEO
-------------------------------------- --------------------------------
(Title) (Title)
February 4, 1999 January 14, 1999
-------------------------------------- --------------------------------
(Date) (Date)
**** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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