PORTIONS OF THIS EXHIBIT HAVE BEEN DELETED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER RULE 406 OF THE SECURITIES ACT OF 1933 AND THE
FREEDOM OF INFORMATION ACT
STARTEC, Inc. CARRIER SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 26th day of
February, 1997, by and between STARTEC, Inc., a Maryland
corporation, with its principal office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("STARTEC") and Frontier
Communications Services Inc., a Michigan corporation with its
principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("Customer"). STARTEC and Customer are "Parties"
hereto.
STARTEC agrees to provide switched international
telecommunications services and other associated services
(collectively "Service"), as described herewith, to Customer on
the following terms and conditions, and Customer agrees to accept
Service subject to the specific terms and charges set forth in
the Annexure(s) attached hereto and pursuant to the terms of this
Agreement.
1. CONFIDENTIALITY: During the Term and for three (3) year
thereafter, neither Party shall disclose any terms of this
Agreement, including pricing, or "Confidential Information" of
the other Party. For purposes of this Agreement, "Confidential
Information" shall mean information in written or other tangible
form specifically labeled as such when disclosed by a Party.
Confidential Information transmitted orally shall be identified
as such at the time of its disclosure. Confidential Information
shall remain the property of the disclosing Party. A Party
receiving Confidential Information shall: (i) use or reproduce
such information only when necessary to perform this Agreement;
(ii) provide at least the same care to avoid disclosure or
unauthorized use of such information as it provides to protect
its own Confidential Information; (iii) limit access to such
information to its employees or agents who need such information
to perform this Agreement; and (iv) return or destroy all such
information, including copies, after the need for it has expired,
upon request of the disclosing Party, or upon termination of this
Agreement. Notwithstanding anything to the contrary contained
herein, a Party shall be allowed to disclose Confidential
Information pursuant to judicial or governmental order or if
otherwise required to do so by law, provided the other Party is
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given prior notice of disclosure and the opportunity to obtain a
protective order if deemed necessary.
2. TERM: The term of this Agreement shall be a minimum one (1)
year from the last date of signature. The Agreement shall
continue thereafter, in full force and effect, until canceled by
either party giving sixty (60) days written notice to the other
Party. Service will be discontinued the first business day of
the third month after such notice of termination.
3. RELATIONSHIP TO PARTIES: Neither this agreement nor the
provision of Service creates a joint venture, partnership or
agency between STARTEC and Customer.
4. USE OF NAME AND MARKS: This Agreement confers no right to
use the name, service marks, trademarks, copyrights, patents of
either Party except as expressly provided herein. Neither Party
shall take any action which would compromise the registered
copyrights or service marks of the other.
5. LEGAL COMPLIANCE: REMEDIES FOR NON-COMPLIANCE: Customer
and STARTEC represent and warrant that they have obtained all
licenses, approvals and/or regulatory authority necessary to
operate as contemplated herein.
6. CUSTOMER RESPONSIBILITIES: Customer shall comply with
STARTEC's network interface procedures when it orders its own
access facilities. STARTEC agrees to promptly provide Customer
with such network interface procedures.
7. SERVICE ACTIVATION: STARTEC will use reasonable efforts to
provide Service within thirty (30) days, following execution of
the applicable Annexure(s), or the requested delivery date,
whichever is later.
8. PRICING. Pricing is pursuant to the applicable
Annexure(s). STARTEC reserves the right to change the pricing,
upon fifteen (15) days prior written notice. Should any unit
price increase more than [CT REQUESTED] during a calendar year,
Customer may terminate this Agreement with thirty (30) days
written notice and without any early termination fee.
9. PAYMENTS FOR SERVICE:
9.1 Customer shall pay STARTEC for Service pursuant to the
terms of this Agreement.
9.2 STARTEC will invoice Customer monthly for Service provided
hereunder. Invoices shall be due and payable thirty (30) days
after receipt of invoice. Undisputed charges for Service that
are not paid within thirty (30) days after Customer's receipt of
the invoice shall be past due. Interest will be charged on
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undisputed past due amounts beginning the thirty-first (31st) day
following Customer's receipt of the invoice at a rate equal to
the lesser of eighteen percent(18%) per annum or the maximum rate
allowed by law.
9.3 Customer will provide STARTEC with a valid tax exemption
form to exempt Customer, under applicable law, from taxes that
would otherwise be paid by Customer. STARTEC will invoice
Customer for taxes (other than income taxes payable by STARTEC)
that are not covered by tax exemption certificate properly filed
with STARTEC.
9.4 If Customer, in good faith, disputes any invoiced amount,
it shall submit to STARTEC within ninety (90) days following
receipt of the invoice written documentation identifying and
substantiating the disputed amount. If the Parties, in good
faith, cannot resolve the dispute within a reasonable period of
time, then the dispute shall be settled by arbitration pursuant
to Paragraph sixteen (16).
9.5 The customer shall be solely responsible for billing and
collecting from its customers. Under no circumstances shall
STARTEC be responsible for fraudulent, unbillable calls, credits
given by the Customer and bad debts incurred by the Customer.
10. PAYMENT SECURITY: Provision of Service is contingent upon
credit approval by STARTEC.
11. INDEMNIFICATION: Each Party (as "Indemnitor") shall
indemnify, defend and hold harmless the other Party (as
"Indemnitee") from and against any and all liabilities, costs,
damages, fines, assessments, penalties and expenses (including
reasonable attorney's fees) resulting from (a) breach of any
provision in this Agreement by Indemnitor, its employees or
agents, arising out of the Indemnitor's performance hereunder.
Customer shall indemnify, defend and hold STARTEC harmless from
and against any and all liabilities, costs, and damages
(including reasonable attorney's fees) resulting from any claim
arising out of libel, slander, or patent or trademark
infringement arising from the combination or use of Service with
Customer provided service or facilities; or Customer's marketing,
advertising, sales or promotional activities.
12. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION
LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS, CLIENTS OR
GOODWILL ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE
PERFORMANCE OR NON-PERFORMANCE OF BUSINESS HEREUNDER.
THE LIABILITY OF STARTEC WITH RESPECT TO THE INSTALLATION
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(INCLUDING DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE,
REPAIR, INTERRUPTION, OR RESTORATION, OF ANY SERVICE OR
FACILITIES OFFERED UNDER THIS AGREEMENT SHALL NOT EXCEED AN
AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THIS AGREEMENT TO THE
PERIOD DURING WHICH SERVICES WERE AFFECTED. FOR THOSE SERVICES
WITH MONTHLY RECURRING CHARGES, THE LIABILITY OF STARTEC IS
LIMITED AN AMOUNT EQUAL TO THE PROPORTIONATE MONTHLY RECURRING
CHARGES FOR THE PERIOD DURING WHICH SERVICE WAS AFFECTED.
13. WARRANTIES: STARTEC WILL USE REASONABLE EFFORTS UNDER THE
CIRCUMSTANCES TO MAINTAIN ITS OVERALL NETWORK QUALITY. THE
QUALITY OF SERVICE PROVIDED HEREUNDER SHALL BE CONSISTENT WITH
OTHER COMMON CARRIER INDUSTRY STANDARDS, GOVERNMENT
REGULATIONS AND SOUND BUSINESS PRACTICES. STARTEC MAKES NO OTHER
WARRANTIES ABOUT THE SERVICE PROVIDED HEREUNDER, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14. TERMINATION FOR CAUSE
14.1 A Party may terminate this Agreement upon the other Party's
failure to cure any of the following within thirty (30) days
following written notice thereof: (a) the (i) insolvency,
corporate reorganization, arrangement with creditors,
receivership or dissolution of the other Party; or (ii)
institution of bankruptcy proceeding by or against the other
Party; (b) assignment or attempted assignment of the Agreement or
any interest therein, except as permitted by Paragraph nineteen
(19) hereof; (c) a final order by a government entity with
appropriate jurisdiction that a Service or the relationship
hereunder is contrary to law or regulation; or (d) breach of any
provision herein not otherwise referred to in this Paragraph
fourteen (14).
15. TERMINATION FOR CONVENIENCE: Customer may terminate this
Agreement for convenience with sixty (60) days advance written
notice, provided that all early termination requirements
stipulated in the Annexure(s) are met.
16. ARBITRATION: Any dispute arising out of or relating to the
Agreement will be finally settled by arbitration in accordance
with the commercial rules of the American Arbitration
Association. The arbitration will be governed by the United
States Arbitration Act, nine (9) U.S.C. Sec. I. et. seq., and
judgment upon the award rendered by the arbitrator(s) may be
entered by any court with jurisdiction. The arbitration will be
held in the Washington, DC metropolitan area.
17. FORCE MAJEURE: Neither Party shall be liable for any delay
or failure in performance of any part of this Agreement, other
than for any delay or failure in an obligation to pay money, to
the extent such delay or failure is caused by fire, flood,
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explosion, accident, war, strike, embargo, governmental
requirement, civil or military authority, Act of God, inability
to secure materials or labor or any other causes beyond their
reasonable control. Any such delay or failure shall suspend this
Agreement until the Force Majeure ceases and the term shall be
extended by the length of the suspension. Customer reserves the
right to terminate the Agreement if Force Majeure lasts for more
than five(5) consecutive days.
18. NOTICES: Notices, requests or other communications
(excluding invoices) hereunder shall be in writing. If mailed
then shall be sent certified, if by fax then, with
acknowledgement from receiving Party.
Fax and Address:
If to STARTEC: If to
Customer:
STARTEC, Inc. Frontier
Communications
Services,Inc.
10411 Motor City Drive ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ Attention: VP Carrier
Relations
Attention: Director- Carrier
Services
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇ Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
19. ASSIGNMENT: Neither this Agreement nor any right or
obligation hereunder may be assigned or delegated to any other
entity without the prior written consent of the other Party,
which consent shall not be unreasonably withheld, unless assigned
to an affiliated company.
20. RULES OF CONSTRUCTION: No rule of construction requiring
interpretation against the draftsman shall apply in the
interpretation of this Agreement.
21. ENTIRE AGREEMENT: This Agreement, together with the
attached Annexure(s), represents the entire agreement of the
Parties with respect to the subject matter hereof and supersedes
all other agreements (written or oral) between the Parties
relating to the Service.
22. MODIFICATION OF AGREEMENT: This Agreement, including its
Annexure(s), may be amended, modified, or supplemented only by a
separate written document executed by authorized representatives
of both Parties. Rates (prices) issued within the parameters of
section eight (8) require only the signature of an authorized
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representative of STARTEC and do not require counter-signature
from Customer.
23. WAIVER OF TERMS: No term or provision herein shall be
waived, and no breach or default excused, unless such waiver or
consent is in writing and signed by the Party to which it is
attributed. No consent by a Party to, or waiver of, a breach or
default by the other, whether express or implied shall constitute
a consent to, or waiver of, any subsequent breach or default.
24. PARTIAL INVALIDITY: If any provision of this Agreement
shall be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate or render the Agreement
unenforceable, but rather the Agreement shall be construed as if
not containing the invalid or unenforceable provision. However,
if such provision is an essential element of this Agreement, the
Parties shall promptly attempt to negotiate a substitute
therefor.
25. CUMULATIVE REMEDIES: Except as otherwise provide herein,
the remedies provided for in this Agreement are in addition to
any other remedies available at law or in equity.
26. GOVERNING LAW: This Agreement shall be governed and
construed in accordance with the laws of the State of Michigan.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year last written below.
Customer
Frontier Communications Services, Inc. STARTEC, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: V.P. Intern'l Relations Title: Director, Carrier
Services
Date: February 24, 1997 Date: 26 February, 1997
ANNEXURE TO STARTEC CARRIER SERVICES AGREEMENT
This Annexure is made and entered into this 17th day of July
1997, by and between STARTEC, Inc., ("STARTEC") a corporation
duly incorporated in the state of Maryland and having its
principal office at 10411 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇-▇▇▇ ▇▇▇▇▇ and FRONTIER COMMUNICATIONS SERVICES, INC.
("Customer") a corporation duly incorporated in the state of
Michigan and having its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
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Whereas, the Parties have signed a Carrier Services Agreement
dated February 26, 1997.
Now this Annexure witnesseth as follows:
1a. Service: Dedicated Access-Switched Services.
1b. Rate Modification: Effective: July 24, 1997
Supersedes all previously quoted rates.
Code Country Rate/Min
[CT REQUESTED]
Billing Method: unless otherwise agreed to in any
annexure(s) attached hereto, Billing will be in the
following format: 1. International Termination: Billing
will be in [CT REQUESTED] increments with a minimum of [CT
REQUESTED] 2. Mexico Termination will be billed in
increments of [CT REQUESTED] with [CT REQUESTED] minimum.
3. Domestic U.S. Termination will be billed in increments
of [CT REQUESTED] with a minimum of [CT REQUESTED] 4. 800
U.S. Origination traffic will be billed in increments of [CT
REQUESTED] with a minimum of [CT REQUESTED]
2. Rate Modification: Rates may be amended with [CT REQUESTED]
notice.
3. Cust. Acct. # [CT REQUESTED] (STARTEC Use only)
4. Please note: customer signature not required; rates will
become effective on the stated effective date.
AUTHORIZED BY: STARTEC, Inc.
/s/___________
Date: 17 July 1997 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director, Carrier-Services
Hard copy sent by
Certified Mail w/ return
receipt
[CT REQUESTED]
STARTEC Use Only: Folder____ Initial_____ Date
________