EXHIBIT 10.11
CARRIER SERVICE AGREEMENT
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This Service Agreement ("Agreement") is made as of the 25 day of OCT,
1999 ("Effective Date"), by and between NetVoice Technologies, Inc.
(NVT), with its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, and SUPERNET, with its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof:
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications
services set forth in Exhibit A and Exhibit B to this Agreement, at
the rates set forth therein and subject to the terms and conditions
contained in this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective
Date and will continue for a period of one (1) year.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges and Monthly Recurring Charges for services
provided by NVT under this Agreement are set forth in Exhibit
A, which charges are subject to change as hereinafter provided.
3.2 Monthly Recurring Charges, Usage Charges and other charges for
services provided under this Agreement shall be payable as
follows:
3.2.1 All monthly Recurring Charges for services provided
under this Agreement will be billed in advance of
usage and shall be paid by CUSTOMER to NVT, without
demand or setoff, within 5 days after the date of the
NVT invoice.
3.2.2 All Usage Charges, if applicable, for services
provided under this Agreement will be billed 7 days
post usage and shall be paid by CUSTOMER to NVT,
without demand or setoff, within 3 days after the
date of the NVT invoice.
3.3 Any amount not received by NVT on the due date specified above
will be deemed past due. Any past due amounts are subject to a
late charge in the amount of one and one-half percent (1.5%)
per month compounded monthly, or the maximum rate allowed by
law, whichever is less, from the due date until payment is
received by NVT.
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3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full amount within the time frames set forth in
sections 3.2.1 and 3.2.2. A description of the disputed
billing must be delivered to NVT in writing within 10 days of
the invoice, and NVT will set aside the disputed amount in a
separate account for up to 30 days while the Parties attempt to
resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least
thirty (30) days prior notice to CUSTOMER for domestic service,
and five (5) days prior notice for international service,
provided CUSTOMER may elect to terminate this Agreement without
penalty in the event of any such increase. In order to
exercise such election to terminate, CUSTOMER must give NVT
written notice of such election within (15) days after the date
of the notice of increase from NVT.
3.6 Customer shall make a Deposit or an Advance Payment or both to
be held as a guarantee for the payment of charges. The Deposit
or Advance Payment shall not exceed an amount equal to one
month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills
on presentation.
In the event of cancellation, the Deposit will be applied
toward the Customer's final ▇▇▇▇ and any remainder will be
returned to the Customer within 90 days after the service has
been disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains
current. In no event shall NVT be liable for any taxes due by
CUSTOMER and CUSTOMER hereby indemnifies NVT against any such claims
for taxes by any tax in authority or party acting on behalf of such
taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT
SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE
ARISING FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL
EXCHANGE CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless
NVT, its affiliates, their respective officers, directors,
shareholders, employees, agents, successors and assigns, and each of
them, from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs of expenses,
whether accrued, absolute, contingent or otherwise, including but
not limited to court costs and attorney's fees, which any of the
foregoing may incur or to which any of the foregoing may be
subjected, arising out of or otherwise based upon any of the following:
6.1 Any breach of default by CUSTOMER under any of the provisions
of this Agreement or of any other agreement or instrument to
which NVT or an affiliate is a party or which is in favor of
NVT or an affiliate of NVT;
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6.2 Claims of any third person or entity for libel, slander,
infringement or copyright, or unauthorized use of trademark,
trade names, or service ▇▇▇▇ arising out of material, data,
information, or other content transmitted by CUSTOMER over
NVT's networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event
CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability; (i)
suspend service to CUSTOMER until such time that such circumstance
is corrected (provided NVT shall not be prohibited from terminating
this Agreement after suspending service; (ii) declare all charges
that have been billed to CUSTOMER by NVT to be immediately due and
payable, whereupon all such amounts shall become immediately due and
payable; or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in
equity, in the event CUSTOMER or any affiliate of CUSTOMER breaches
any provision of any other agreement or instrument with or in favor
of NVT or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or
request of the united States government or of any government
(including without limitation, state and local governments having
jurisdiction over any of the parties) or of any department, agency,
commission, court, bureau, corporation or other instrumentality of
an one or more of such governments, or of any civil or military
authority; national emergencies; insurrection; riots; wars; strikes,
lockouts, work stoppage or other such labor difficulties; or any act
or omission of any other person or entity.
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10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer
any of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance
or transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or
to exercise any remedy provided herein, the waiver of any term or
condition of this Agreement or the granting of an extension of time
for performance shall not constitute the permanent waiver of any
term, condition or remedy of or under this Agreement, and this
Agreement and each of its provision shall remain at all times in
full force and effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
If to CUSTOMER: Supernet
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATT: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term,
covenant, or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be
affected by such determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience
and reference only and do not affect or limit the interpretation,
contents or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF
THE COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE,
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CONTROVERSY OR OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each
of such counterparts shall, for all purposes, be deemed to be an
original but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or
entity that is not a party hereto or a successor or permitted assign
of a party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition
that the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior or
contemporaneous agreements, whether written or oral, between NVT and
CUSTOMER. No waiver, alteration or modification or any of the
provisions of this Agreement shall be binding unless in writing and
signed by a duly authorized representative of the parties; provided,
however, that only written notice to CUSTOMER is required to
increase service rates in accordance with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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(Print Name)
Title: President Title: V.Pres
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Date: 11-1-99 Date: 10-26-99
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EXHIBIT A
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NETVOICE TECHNOLOGIES, INC.
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TERMINATION SERVICE
NVT will terminate telecommunications received from Customer by means of
a DS1(T-1) interconnection at one of NVT's points of presence. Calls may
be terminated locally, i.e., to the NPA/NXX numbers associated with that
point of presence ("Local Termination"), or may be carried by NVT to and
terminated in other cities in which NVT has a point of presence ("on-net
cities"), i.e., to the NPA/NXX for NVT's other on-net cities ("IP Long
Haul"). NVT's on-net cities and the NPA/NXX associated with them are
listed on Exhibit B. The following charges will apply:
Long Haul Transport, Local Termination, Local Origination
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Option A: Fixed Rate Service
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1 Year 2 Year
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1 - 4 T-1 $5500 ____ $5300 ____
5 - 9 " $5300 ____ $5100 ____
10 - 28 " $5100 ____ $4900 ____
29+ " $4900 ____ $4700 ____
(2) @ $5000 to start /s/ FPR MG
(Please initial appropriate fixed quantity/rate) (Quantity chosen must be
activated within 60 days of initial circuit acceptance)
Option B: Rate per minute (Requires DS3 volume-minimum 4M minutes per month
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Origination Service $.017 per minute Per minute plan accepted:
Termination Service $.015 per minute (60 day ramp to reach
4M minutes)
1P Long Haul and Virtual Termination Prices are FOB NVT POP. INCLUDES
LONG HAUL AND TERMINATION of calls within local calling area of
terminating on-net city (cities).
Local termination is FOB NVT POP.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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EXHIBIT B
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NETVOICE TECHNOLOGIES, INC.
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TERMINATION SERVICE
NPA/NXX LISTINGS AVAILABLE
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Dallas Ft. Worth
Houston Austin
San Antonio El Paso
Oklahoma City Tulsa
Atlanta New Orleans
Denver Kansas City
Orlando Tampa
Miami/Ft. Lauderdale Jacksonville
Little Rock Albuquerque
Portland Phoenix
Chicago (11/99) New York (11/99)
Los Angeles (12/99)
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