Updated 6-14-02
Final PDF 2-20-03
Exhibit 10.22
SNARC ADDENDUM
▇▇▇▇.▇▇▇ SERVICES AGREEMENT
THIS ADDENDUM ("Addendum") is attached to and made a part of a certain
▇▇▇▇.▇▇▇ Services Agreement entered into on February 20, 2003 by and between
ITXC Corp, a Delaware corporation ("ITXC") and Swiftnet Ltd. ("Company"), a
______ corporation, (collectively the "Parties" or individually a "Party"),
(Capitalized terms used and not defined shall have the same meanings set forth
in the Agreement.)
1. DEFINED TERMS. Unless the context otherwise requires capitalized terms
used and not defined herein shall gave the meanings set forth in the Agreement.
2. ITXC EQUIPMENT. Upon execution of this Addendum, ITXC at its sole cost,
shall purchase and furnish to Company the equipment, it deems at its sole
discretion to be reasonably necessary to assist Company in the performance of
its obligations hereunder, including, without limitation, IP telephony gateways
(collectively, the "ITXC Equipment"), which Equipment includes the items listed
on Exhibit C to this Addendum, to be collocated with Company's switch. The items
of ITXC Equipment (gateways) in connection with the services to be provided
hereunder, shall be determined based upon the projected traffic to be exchanged
by the Parties. ITXC reserves the right to increase or decrease the ITXC
Equipment in connection with the Services. ITXC shall provide Company with at
least 5 days notice if the ITXC Equipment is to be increased and at least 10
days notice if it will be decreased [except where otherwise provided].
3. SERVICES TO BE PROVIDED. In addition to the Services to be provided
under the Agreement, ITXC shall provide remote management, maintenance,
operation and support of the ITXC Equipment and any related equipment.
4. COMPANY SERVICE RESPONSIBILITIES. Company is responsible to provide, at
its own cost and expense, the necessary amount of bandwidth, PSTN lines, clear
channel IP data lines, hubs, routers, switches, and any additional equipment or
facilities as may be required to meet the gateway capacity provided by the ITXC
Equipment. ITXC shall provide Company with a written request specifying the
amount of bandwidth and lines necessary for the ITXC Equipment. Company further
agrees that the ITXC Equipment shall be dedicated to ITXC traffic only and may
not be used for any other Company's traffic. In the event of failure by Company
to comply with the terms of this provision, it shall be deemed a default of the
Agreement, and ITXC may immediately suspend Services or terminate the Agreement.
5. OWNERSHIP OF EQUIPMENT/FACILITIES.
(a) Title to the ITXC Equipment shall at all times remain with ITXC.
None of the ITXC Equipment shall be, and none shall be deemed to be, property of
the Company. Company agrees to execute any documents reasonably requested by
ITXC to evidence ITXC's continued ownership of the ITXC Equipment. No portion of
the ITXC Equipment, including without limitation, any gateways, lines or related
equipment shall be deemed a fixture, notwithstanding any method of affixation to
the property, premised or the building or any applicable law or doctrine
relating to fixtures.
(b) Company acknowledges and agrees that ITXC has located the ITXC
Equipment in Company's premises solely as an accommodation to Company. Under no
circumstances shall Company represent to any person that Company owns, or
removes any identifiers of ITXC's ownership on, the ITXC Equipment. Company
covenants that it will not assert (i) any ownership interest in the ITXC
Equipment, or (ii) any right to own, possess, hold or retain the ITXC Equipment.
(c) In the event Company shall file, or become the subject of, a
petition seeking relief under any applicable bankruptcy laws, Company agrees
that it will not assert that the ITXC Equipment is property of Company's estate.
Company further agrees that, to the extent that an automatic stay or similar
provision is applicable to ITXC or the ITXC Equipment, Company, for itself and
its successors and assigns, will not oppose any request by ITXC to obtain relief
from such provision, and at ITXC's request, will consent to such relief, in
order to permit ITXC to preserve and protect the ITXC Equipment and further to
permit ITXC or its agent to remove the ITXC Equipment from Company's premises.
ITXC CONFIDENTIAL AND PROPRIETARY - DO NOT DISTRIBUTE
INITIALS: ITXC ____ COMPANY ____
(d) In the event that the ITXC Equipment is damaged, destroyed,
rendered inoperable, removed without the express authorization of ITXC and/or
returned upon request by ITXC, then Company shall be liable for the replacement
cost of the ITXC Equipment and ITXC shall have the right to offset said
replacement cost against any amounts owed by ITXC to Company.
(e) If Company is in default under the Agreement or this Addendum,
then in addition to any of the remedies contained in the Agreement, ITXC shall
reserve the right to suspend service and remove the ITXC Equipment immediately,
without notice or any further liability to Company. Notwithstanding the
foregoing, if Company is in default due to any insolvency, bankruptcy assignment
for the benefit of creditor, appointment of a trustee or receiver or similar
event with respect to the Company, then ITXC shall have the right to remove the
ITXC Equipment immediately, without notice to Company, and if necessary ITXC or
its vendors may enter the premises, as well as access to any conduits, chaseways
or other areas, where such items are located and remove the ITXC Equipment
without prior notice to the Company. ITXC shall have no liability to Company for
such removal.
6. COMPANY'S RESPONSIBILITIES WITH RESPECT TO THE ITXC EQUIPMENT.
Company shall: (a) provide technical personnel within 2 business days of
receipt of ITXC Equipment in order to support ITXC in the basic installation
procedures required for the ITXC Equipment; (b) operate the ITXC Equipment in
strict compliance with ITXC's technical documentation; (c) not alter or modify
ITXC Equipment except as specifically prescribed by ITXC; (d) extend a standard
of care for the ITXC Equipment no less stringent that the Company uses for its
own equipment, but in no event less than a reasonable degree of care; (e)
include the ITXC Equipment in any insurance policy against loss, theft or damage
that the Company has for its own equipment or facilities and provide ITXC, at
ITXC's request, of proof of such insurance; and (f) provide ITXC or its agent
with access at all times to any space that ITXC or its agent requires for the
maintenance of ITXC's Equipment, facilities and lines or removal of ITXC
Equipment. In addition, in the event that the ITXC Equipment is reduced or
removed, the Company will use reasonable care and fully cooperate in removal
activities, including packing and return shipping of the ITXC Equipment back to
the ITXC-designated location.
7. COMPANY COMPLIANCE FOR CUBA.
Company acknowledges that Company, its agents and/or through third party
agreements are providing their own and/or third party equipment for termination
in Cuba and in no case shall ITXC engage in any transaction (including the
negotiation of any contract term) related to the exportation to Cuba of any
equipment from the United States or from a third country. Company further
acknowledges that payments for calls terminating in Cuba shall not exceed
existing U.S. guidelines (currently a $0.60 per minute settlement rate, plus a
$1.00 surcharge per message for collect calls originating in Cuba), whether
payment is made directly to ETECSA or indirectly through a Foreign Service
Provider (FSP).
8. SECURITY.
INTENTIONALLY LEFT BLANK.
9. NO MODIFICATION; CONFLICT. Except as specifically modified and amended
herein, all terms and conditions of the Agreement are hereby ratified and remain
in full force and effect. Company hereby reaffirms all representations,
warranties and covenants contained herein. In the event of a conflict between
the terms of this Addendum and the Agreement, terms of this Addendum shall
control. This Addendum may not be modified except in writing by authorized
representatives of the Parties.
ITXC CONFIDENTIAL AND PROPRIETARY - DO NOT DISTRIBUTE
INITIALS: ITXC ____ COMPANY ____
Updated 6-14-02
Final PDF 2-20-03
10. ENTIRE AGREEMENT. This Addendum and the Agreement embody the entire
agreement and understanding of the Parties with respect to the subject matter
covered herein. There are no restriction, promises, representations, warranties,
covenants or undertakings other than those expressly set forth or referred to
herein.
IN WITNESS WHEREOF, the Parties have executed this Addendum to the
▇▇▇▇.▇▇▇ Services Agreement as of the day and year written above.
ITXC: Swiftnet Ltd.:
ITXC Corp
By: By: /s/ A. Kelnan
--------------------------------- ---------------------------------
Name: Name: A. Kelnan
------------------------------- -------------------------------
Title: Title: MD
------------------------------ ------------------------------
Revised 4-11-02
Final PDF 2-20-03
▇▇▇▇.▇▇▇(SM) SERVICES AGREEMENT
THIS ▇▇▇▇.▇▇▇(SM) SERVICES AGREEMENT ("Agreement") is made and entered
into as of this 20th day of February 2003 ("Effective Date"), by and between
ITXC CORP., a Delaware corporation, with a principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("ITXC") and Swiftnet Ltd. ("Company"), a UK
corporation with a principal office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ N129RY (each a "Party" and jointly, the "Parties").
The Parties wish to provide to and purchase from each other certain
internet Telephony and other services utilizing the Internet under the following
terms and conditions:
1. SERVICES TO BE PROVIDED; RATES
Each Party agrees to provide to and purchase from the other party, the
service(s) ("Services") described in any Services Addenda referencing this
Agreement and incorporated by reference to this Agreement.
2. TECHNICAL AND OPERATIONAL MATTERS.
2.1 Each party shall have English-speaking technical support staff on duty 24
hours a day, 7 days a week.
2.2 Company shall adhere to all reasonable security and other procedures
contained in this Agreement, the ITXC documentation or any materials otherwise
provided by ITXC. ITXC shall notify Company of any changes to the ITXC
documentation, and Company shall have 30 days after receipt of such notice to
comply with the changes to the ITXC Documentation or sooner, if ITXC reasonably
determines that the security of ▇▇▇▇.▇▇▇(SM) is at risk. ITXC may immediately
suspend Services if Company fails to comply with the procedures set forth in
Section 2 or in the Services Addendum.
2.3 If, by mutual agreement of the Parties, ITXC dispatches an agent (or agents)
to a particular location to assist Company in the deployment of the Services,
which assistance may include, but need not be limited to, technical support, and
upon such agent's (or agents') arrival at such location, the agent (or agents')
cannot provide the assistance for any reason other than a failure to perform by
ITXC, including, but in no way limited to, Company's failure to provide
bandwidth, utilities, additional equipment, or facilities in operable condition,
then Company will pay ITXC an assistance fee (the "Assistance Fee") of $1,000
per agent per day that such agent remains at the location and cannot provide the
assistance. If an Assistance Fee is warranted, it will be assessed, at ITXC's
option, in one of two ways; (a) by ITXC adding it to any amount due to ITXC from
Company, or (b) by ITXC deducting it from any amount due to Company from ITXC.
3. TERM; TERMINATION AND EQUIPMENT.
3.1 This Agreement is effective for initial term of one year from the Effective
Date. Thereafter, the term of this Agreement shall automatically renew for
successive 90 day terms unless (i) a Party gives written notice of nonrenewal to
the other Party at least 30 days prior to the expiration of the then current
term or (ii) the Agreement has terminated in accordance with its terms.
3.2 Either Party may terminate this Agreement at any time upon 60 days prior
written notice to the other Party.
3.3 Either Party may suspend service, reduce service or terminate this Agreement
immediately, without any further liability to the other Party, if (a) such Party
fails to (i) pay any amount due under this Agreement within 10 days of the due
date of such amount; or (ii) perform any other obligation under this Agreement,
and such failure continues uncured for a period of 30 days after the date of
written notice identifying the breach to the non-performing Party; or (b) any
insolvency, bankruptcy, assignment for the benefit of creditors, appointment of
a trustee or receiver or similar event with respect to such Party has occurred;
or (c) if there is a material change in a Party's financial condition which
would represent a material financial risk to the other Party; or (d) if either
Party reasonably determines that the security of their respective equipment,
network and/or services is at risk to interruptions, damage and/or fraud; or (e)
if Services provided pursuant to this Agreement become subject to government or
other regulation and such regulation materially affects provisions of this
Agreement or the ability of a Party to perform its obligations hereunder.
3.4 Each Party's obligation to make payments for charges incurred prior to the
suspension or termination of this Agreement shall survive such suspension or
termination.
3.5 In the event that a Party is in default under this Agreement, and upon the
non-defaulting Party's oral or written request, the defaulting Party shall, at
its expense, immediately return any equipment owned or supplied by the
non-defaulting Party's request, the defaulting Party shall allow the
non-defaulting Party or its agent to physically inspect and/or physically remove
the equipment. Any party holding a security interest in any equipment shall have
the same right of access to the equipment.
3.6 In the event that this Agreement is terminated, each Party shall, at its own
expense, immediately return any equipment owned or supplied by the other Party.
Upon request, the Party in possession of the equipment shall allow the Party or
its agent in physically inspect and/or physically remove the equipment. Any
party holding a security interest in any equipment shall have the same right of
access to the equipments.
ITXC CONFIDENTIAL AND PROPRIETARY - DO NOT DISTRIBUTE
INITIALS: ITXC ____ COMPANY ____
Revised 4-11-02
Final PDF 2-20-03
4. LIMITATION OF LIABILITY AND NO WARRANTY.
4.1 a. With the exception of payment obligations, the entire liability of either
Party for any and all claims, losses or damages arising out of furnishing
Services or for any other reason, including omissions, interruptions, delays, or
errors, or other defects, or use of these Services or arising out of the failure
to furnish the Services, shall be limited to the value of Services that are
actually lost. Neither Party shall be liable to the other Party for any
indirect, incidental, special, consequential, exemplary, punitive or other
damages as a result of such Party's or its agent's service, equipment or
facilities, or the acts or omissions or negligence of either such Party's
employees or agents.
b. ITXC shall not be liable for any (i) act or omission of any entity
furnishing to ITXC or to Company's facilities, equipment or services used in
connection with the ▇▇▇▇.▇▇▇(SM), (ii) damages or losses due to the fault or
negligence of Company or due to the failure or malfunction of Company provided
equipment, software, hardware or facilities, (iii) lack of availability or
performance of any telecommunications systems, facilities or services under the
control of other entities, or for other facilities provided by other entities
used for service to Company, or (iv) claims involving: (A) breach of the privacy
or security of communications transmitted over ▇▇▇▇.▇▇▇(SM); (B) any
representations made by ITXC employees that are inconsistent with the provisions
of this Agreement; or (C) any noncompletion of calls due to network busy
conditions or any other cause.
c. Except for sums due under this Agreement, each Party shall be deemed
conclusively to have waived any claim unless it makes such claim in writing to
the other Party within 90 days after the date the Party knew or reasonably
should have known of the occurrence that gave rise to the claim.
4.2 EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, THE PARTIES MAKE
NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES,
▇▇▇▇.▇▇▇(SM) OR OTHER PRODUCTS OR SERVICES RENDERED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM A COURSE OF
PERFORMANCE, COURSE OR DEALING OR TRADE USAGE.
4.3 THE PARTIES SPECIFICALLY MAKE NO WARRANTY WITH RESPECT TO SOFTWARE,
TECHNOLOGY OR EQUIPMENT (COLLECTIVELY, "TECHNOLOGY") PROVIDED OR USED HEREUNDER
BY EITHER PARTY AND DO NOT WARRANT THAT THE TECHNOLOGY PROVIDED TO THE OTHER OR
USED HEREUNDER IS FREE FROM ERROR, SHALL OPERATE WITHOUT INTERRUPTION OR PROVIDE
SECURE OPERATIONS. NEITHER ITXC NOR THE OWNER OF ANY TECHNOLOGY USED BY OR
LICENSED TO ITXC SHALL BE RESPONSIBLE FOR THE UNINTENDED DELAY OR FAILURE OF ANY
SERVICE CAUSED BY THE FAILURE OR DELAY OF TECHNOLOGY PROVIDED BY ANY THIRD
PARTY.
5. Notices. All notices, requests, consents and other communications hereunder
except for rate changes which are specifically addressed in the addenda, shall
be in writing and shall be deemed effectively given and received upon delivery
in person, or one business day after delivery by an internationally-recognized
overnight courier service, if sent for next business day delivery, or by
facsimile transmission with sender's transmission receipt, or five (5) business
days after deposit via certified or registered mail, return receipt requested,
in each case addressed as follows:
FOR NOTIFYING ITXC OF CHANGES TO RATES, DIAL PLANS, OR CODES:
ITXC Corp.
Attn.: Telecom Rate Administrator
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax #1: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
FOR ALL OTHER PRICING-RELATED INQUIRIES:
ITXC Corp.
Attn.: Pricing Manager
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax #1: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
FOR BILLING-RELATED INQUIRIES;
ITXC Corp.
Attn.: Comptroller
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax #1: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
FOR ALL OTHER INQUIRIES:
ITXC Corp.
Attn.: General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Fax #1: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇.▇▇▇
ITXC CONFIDENTIAL AND PROPRIETARY - DO NOT DISTRIBUTE
INITIALS: ITXC ____ COMPANY ____
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SWIFTNET LTD.:
Attn ▇▇▇▇▇▇ ▇▇▇▇▇▇
Britannia House ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
Phone: ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Email: ▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇.▇▇
BILLING CONTACT:
Attn: Same as above
RATE CHANGE CONTACT FOR TERMINATION:
Attn: Same as above
RATE CHANGE CONTACT FOR ORIGINATION:
Attn: Same as above
6. FRAUD; MISTAKE. If Company suspects or reasonably should have suspected any
mistake and/or fraudulent activity related to the subject matter of this
Agreement, including, without limitation, stolen calling card or subscriber
identification numbers, personal identification numbers and passwords, Company
shall provide ITXC immediate written notification of such mistake and/or
fraudulent activity pursuant to the notice provision of this Agreement and shall
remain responsible for all costs and expenses incurred between such time as
Company knew or reasonably should have known of such mistake and/or fraudulent
activity and the actual delivery of such notice to ITXC.
7. NON-EXCLUSIVE. Company agrees that its rights to use Services and
▇▇▇▇.▇▇▇(SM) are non-exclusive and that ITXC shall enter into agreements with
other parties to provide Services, purchase any services or use ▇▇▇▇.▇▇▇(SM).
8. FORCE MAJEURE. If the performance of this Agreement is interfered with by
reason of any circumstances beyond the reasonable control of either Party, such
as war, riot or act of God, of a Party and such Party has exercised ordinary
care in the prevention thereof, then the Party affected shall be excused from
such performance of this Agreement is interfered with due to a Force Majeure for
greater than fourteen (14) days, either Party may terminate this Agreement by
providing five (5) days written notice.
9. NON-WAIVER. The failure or delay in enforcing any provision hereof by either
Party shall in no way be construed to be a waiver of such provision nor shall
such action be deemed a waiver of any other right available at law or in equity.
10. INTELLECTUAL PROPERTY. Any inventions developed by a Party during the term
of this Agreement shall be the property of that Party.
11. BRANDING; PUBLICITY. This Agreement is not a license for Company to sell or
offer for sale goods or services under a trademark or service ▇▇▇▇ of ITXC.
Additionally, all use of any marks which are the property of ITXC shall be for
the benefit of ITXC. Neither Party shall use the other Party's trademarks either
in connection with the Services or otherwise without the prior written consent
of the other Party. The Parties agree that no public statements or announcements
relating to this Agreement, the Services or their relationship shall be made by
either Party without the prior written consent of the other Party.
Notwithstanding the foregoing, ITXC shall have the right to announce and list
Company as a new or existing customer without further consultation once service
has commenced and/or upon the execution of this Agreement.
12. ALTERNATIVE DISPUTE RESOLUTION. Notwithstanding anything to the contrary
herein, any dispute arising pursuant to or in any way related to this Agreement
or the transactions contemplated hereby, which cannot be resolved by
negotiation, shall be settled by binding arbitration in London, England, in
accordance with the J.A.M.S./ENDISPUTE Arbitration Rules and Procedures [(see
▇▇▇.▇▇▇▇▇▇▇.▇▇▇)] provided, however, that nothing in this section shall restrict
the right of either Party to apply to a court of competent jurisdiction for
emergency relief pending final determination of a claim by arbitration in
accordance with this section. Each Party shall pay its own expenses associated
with such arbitration, except for the costs of the arbiter, which cost shall be
borne equally by the Parties. The decision of the arbiter, based upon written
findings of fact and conclusions of law, shall be binding upon the Parties, and
judgment in accordance with that decision may be entered in any court having
jurisdiction thereof. In no event shall the arbiter be authorized to grant any
punitive, incidental or consequential damages of any nature or kind whatsoever.
The Parties, their representatives, other participants and the arbiter shall
hold the existence, content, and result of mediation and arbitration in
confidence to the maximum extent permitted by law and all proceedings shall be
conducted in English. In no event may either Party withhold payment on any
amount unless that amount is disputed in good faith.
13. GOVERNMENT OR OTHER REGULATION. Each Party is independently responsible for
ensuring that its activities (including the offering or providing of services or
facilities) shall comply with applicable laws and government or other
regulation. Each Party shall cooperate with the other in defending any civil,
criminal or other claim threatened or brought by any governmental agency or
third party.
14. EXPORT RESTRICTIONS. Each Party agrees to comply with all export laws and
regulations of the United States or foreign agency or authority, and not to
export or allow the export or re-export, directly or indirectly, of any
proprietary information or software or any copy or direct product thereof in
violation of any such restrictions, laws or regulations, to any destination to
which such export or re-export is restricted or prohibited by U.S. or non-U.S.
law.
15. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that it
has all requisite
ITXC CONFIDENTIAL AND PROPRIETARY - DO NOT DISTRIBUTE
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legal power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
16. CONFIDENTIALITY. The definition, specific requirements, care and
restrictions regarding all confidential information shall be governed by the
Non-Disclosure and Confidentiality Agreement between the Parties, dated February
20, 2003.
17. ASSIGNMENT. The Agreement may not be assigned (nor may duties hereunder be
delegated) without the express written consent of the other Party, which consent
shall not be unreasonably withheld; provided that either Party may assign this
Agreement to any parent, subsidiary or affiliated entity, or any entity which
acquires all or substantially all of its assets or business and shall provide
the other Party with ten (10) days written notice of such assignment. Any
purported assignment not permitted hereunder shall e void.
18. TAXES. Each Party is responsible for complying with and paying all taxes and
duties assessed by government and equivalent authorities with jurisdiction over
its activities. If applicable, Company agrees that ITXC may adjust the amount
due under this Agreement to ensure any applicable taxes are borne by the
appropriate Party.
19. APPLICABLE LAW. This Agreement and any action instituted by any Party with
respect to matters arising under this Agreement shall be governed by the laws of
the U.K., without giving effect to its conflicts of law provisions.
20. RELATIONSHIP OF THE PARTIES. Each Party shall consider itself under this
Agreement as an independent contractor and not as an agent, partner, joint
venturer, franchise, or employee of the other Party, and shall not bind or
attempt to bind the other Party to any contract. Nothing contained in this
agreement shall be deemed to form a partnership or joint venture between the
Parties.
21. NO THIRD PARTY RIGHTS. This Agreement is not intended ad shall not be
construed to create any rights or remedies in any parties other than ITXC and
Company, and no person shall assert any rights as a third party beneficiary
hereunder.
22. SURVIVAL OF OBLIGATIONS. The rights and obligations of the parties which by
their nature would continue beyond the termination or expiration of this
Agreement shall survive such termination or expiration.
23. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted assigns.
24. CONSTRUCTION; INTERPRETATION. The language of all parts of this Agreement
shall in all cases be construed simply, as a whole or in accordance with its
fair meaning and not strictly for or against either Party. The Parties agree
that this Agreement has been negotiated by the Parties in arm's length
negotiations, that each Party has been given the opportunity to independently
review this Agreement with legal counsel, and that each Party has the requisite
experience and sophistication to understand, and agree to the particular
provisions hereof.
25. ENTIRE AGREEMENT; AMENDMENTS; SEVERABILITY. This Agreement and all addenda
constitute the entire understanding and agreement between the Parties and shall
supersede all previous negotiations, commitments, representations and writings,
written or oral. Notwithstanding the foregoing, any financial documents and/or
representations provided by a Party pertaining to the credit application and/or
financial information shall be deemed a part of this Agreement and the
disclosing Party shall be responsible for advising the other Party of a material
change in the disclosing Party's financial condition. Except where otherwise
specifically noted, this Agreement may not be amended or supplemented except by
a written agreement signed by a duly authorized representative of each Party. If
any term or provision of this Agreement is held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in full
force and effect provided that the essential terms and conditions of this
Agreement for both Parties remain valid, binding and enforceable.
26. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
all of which shall be considered one and the same agreement.
ITXC CONFIDENTIAL AND PROPRIETARY - DO NOT DISTRIBUTE
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
and delivered as of the day and year first above written.
By: ITXC Corp. By: Swiftnet Ltd.
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Authorized Signature Authorized Signature
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Name and Title Name and Title
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Date Date
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Final PDF 2-20-03
WWeEXCHANGE ORGINATION SERVICES ADDENDUM
(to ▇▇▇▇.▇▇▇(SM) Services Agreement)
THIS WWeXCHANGE ORGINATION SERVICES ADDENDUM ("Addendum") is attached to
an made a part of that certain ▇▇▇▇.▇▇▇(SM) Services Agreement dated as of
February 20, 2003, (the "Agreement") by and between ITXC CORP. ("ITXC") and
Swiftnet Ltd. ("Company"). All capitalized terms not defined in this Addendum
shall have the meanings assigned to them in the Agreement.
1. DESCRIPTION OF SERVICES TO BE PROVIDED.
1.1 This Addendum will enable Company to provide its Subscribers with the
ability to place Internet Telphony calls through the use of the ▇▇▇▇.▇▇▇(SM).
1.2 ITXC agrees to provide to Company on a 24-hour a day, 7-day a week basis,
the Services described in this Section 1 and Exhibit A attached hereto. Company
agrees to purchase such Services on the terms and conditions and at the rates
set forth herein and in the Agreement, as the same may be amended from time to
time.
1.3 Company shall be responsible for providing all end-user or caller related
services to its Subscribers, such as billing, collections and customer care, all
in compliance with the ITXC documentation, including but not limited to,
confirming the identity of its Subscribers for the use of ▇▇▇▇.▇▇▇(SM).
1.4 Company shall independently operate Gateways for use by Company's
Subscribers and charge its Subscribers such rates, as Company deems appropriate.
Company shall provide origination services and operate and manage its equipment
in compliance with the ITXC documentation.
1.5 At all times, Company shall comply with all ITXC operational requirements
contained in the Agreement, Addendum or ITXC documentation. In the event that
Company cannot comply with the ITXC operational requirements, ITXC may (i)
suspend or reduce the Services; or (ii) terminate the Agreement. ITXC shall use
commercially reasonable efforts to apply equitably the requirements of the ITXC
documentation to all ITXC Affiliates.
2. ROUTING. ITXC shall route or cause Subscribers' Internet Technology to be
routed over ▇▇▇▇.▇▇▇(SM). ITXC reserves the right to route Internet Telephony
using any means of termination, including the use of the PSTN. ITXC reserves the
right, and Company shall not attempt to circumvent such right, to prohibit use
of the ▇▇▇▇.▇▇▇(SM) to serve certain telephone numbers, including premium pay
numbers. Company shall provide written notice to ITXC of all gateways
anticipated to be eliminated as soon as possible, but not less than sixty (60)
days in advance of the elimination of such gateway.
3. RATES AND MINIMUM MONTHLY SERVICE COMMITMENTS.
3.1 Current ITXC prices for WWeXchange Services ("WWeXchange Rates") shall be
provided to Company by written notice through facsimile and/or electronic mail.
ITXC has sole discretion in setting the WWeXchange Rates. Company agrees to pay
ITXC the WWeXchange Rates in effect for the applicable pricing period. ITXC will
provide at least seven days prior written notice for price increases. Price
decreases may be made immediately upon notice. Company acknowledges that all
valid pricing-related information and/or effective WWeXchange Rates from ITXC
must come from duly authorized personnel, defined as an "ITXC Pricing Manager"
or an Executive Corporate Office of ITXC. All other pricing-related information
and/or effective WWeXchange Rates provided by any other ITXC personnel,
including without limitation sales personnel, shall be deemed a quotation for
discussion and budgetary purposes only. Any price-related information and/or
WWeXchange Rates shall not be deemed valid until confirmed by an ITXC Pricing
Manager or Executive Corporate Officer of ITXC in writing.
3.2 Company shall meet a minimum monthly commitment of 75,000 minutes of use per
month. If Company fails to achieve any of the monthly minimum requirements;
Company shall pay to ITXC a monthly service charge in the amount of $1,000.
Consecutive failure by Company to meet such commitment may result in the
suspension or termination of the Agreement in accordance with Section 3 of the
Agreement.
4. DEPOSIT/CREDIT LIMIT.
4.1 INTENTIONALLY LEFT BLANK.
4.2 INTENTIONALLY LEFT BLANK.
4.3 INTENTIONALLY LEFT BLANK.
4.4 ITXC has established a credit limit ("Credit Limit") for Company in the
amount of $60,000 and Company agrees not to exceed this Credit Limit. If ITXC
reasonably believes that Company will exceed the Credit Limit, ITXC will provide
Company with notice that a payment must be made. Company agrees that payment
will be sent no later than twenty-four (24) hours after receiving notice and
said payment in an amount determined by ITXC to ensure that the Credit Limit
will not be exceeded before payment is received on the next invoice. In the
event that Company does not remit payment within twenty-four (24) hours, ITXC
reserves the right to immediately reduce capacity and/or suspend Service. ITXC
reserves the right to
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adjust or suspend the Credit Limit of Company upon notice if it determines that
there is a material financial risk to ITXC. In such case, ITXC may (1) adjust
the Credit Limit; (2) require a prepayment or reducer check from Company; and/or
(3) modify the billing and payment terms in order to continue Service.
5. CHARGES, BILLING AND PAYMENT.
5.1 Until such time as ITXC and Company enter into an addendum or other
agreement whereby Company shall provide Termination Services as well as
Origination Services, this Section 5.1 shall control invoicing and payment. ITXC
or its agent shall issue an invoice to Company on a weekly basis (the "Weekly
Invoice"). All amounts stated on each Weekly Invoice shall be due and payable in
full within seven (7) days from the Weekly Invoice date. Company shall not
dispute any of the charges contained on the Weekly Invoice unless such dispute
is in good faith, is greater than or equal to 10% of the total amount invoiced
by ITXC and Company provides written notice to ITXC. Disputed amounts less than
10% shall be disputed by Company as part of the monthly settlement process
described herein. At the end of each month, ITXC will provide Company with a net
settlement Invoice (the "Net Settlement Invoice") containing for the applicable
billing period and for any prior period that appropriate charges were not
invoiced (i) the Termination Services Value, if any, (ii) the WWeXchange
Services Value, if any and (iii) the Settlement amount. Each invoice shall
include the total payment due for Units of Service for the applicable billing
period and for any prior period that appropriate charges were not reflected.
Once Company has received the monthly Net Settlement Invoice, Company may
dispute charges of the Weekly Invoices covered by such Net Settlement Invoice
(the "Monthly Settlement Process").
5.2 Unless ITXC receives written notice from Company that the amount on the Net
Settlement Invoice does not accurately reflect applicable charges for Services
for the period, then Company shall pay the amount shown on the Net Settlement
Invoice within 7 days of the date of such statement. Any undisputed payments not
made when due are subject to a Late Charge of 1.5% or LIBOR plus 1%, whichever
is lower.
5.3 ITXC's records shall be utilized for billing purposes. Company shall provide
ITXC written notice in hard copy or electronic format, of any dispute concerning
billing within 30 days of the date of the Net Settlement Invoice containing the
disputed charges. Company expressly waives any right it may have to dispute the
billing or any charges for which written notice has not been provided to ITXC
within the 30-day period. In the event that Company disputes billing and
withholds payment, ITXC may suspend or reduce services during the pendency of
such disputes to prevent Company from accumulating charges and liability during
the dispute resolution. All amounts in dispute shall be counted toward Company's
use of their Credit Limit. In the event that the dispute is determined to be
invalid, then Company shall be subject to a Late Charge of 1.5% or LIBOR plus
1%, whichever is lower.
5.4 Disputed charges shall be resolved between the Parties using commercially
reasonable methods consistent with industry practice. If any dispute between the
Parties is not resolved within 10 business days after written notice as set
forth in Section 5 of the Agreement, and any disputed amount has been withheld
pending resolution of such dispute, then the Parties may begin arbitration
proceedings under Section 12 of the Agreement. If either Party brings legal
action for the recovery of any amounts due from the other Party under the
Agreement, the non-prevailing Party shall pay the prevailing Party's reasonable
attorneys' fees, collection fees and costs actually incurred by the prevailing
Party.
6. FEES. Company shall pay to ITXC the Network Fee in the amount of $5,000 on
the date of this Addendum and when requested by ITXC as a reconnection fee
described below. Payment of such fee is required before the commencement of
joint initial testing or deployment of the Origination Services. If ITXC
suspends service to Company as provided herein, then ITXC may reassess the
Network Fee as a reconnection fee, which fee is due before any services are
resumed.
7. DEFINITIONS.
"Affiliate" means the Company and shall not be construed as any type of
agency, partnership, and/or joint venture with ITXC.
"Gateway" means the combination of the Equipment used to provide the
electronic "bridge" from the PSTN to an IP network and any interactive voice
response system and/or prepaid calling system or other method used in
conjunction with a gateway to provide a Subscriber access to ▇▇▇▇.▇▇▇(SM).
"Originating Affiliate" means the Company providing services to
Subscribers using ▇▇▇▇.▇▇▇(SM) and shall not be construed as any type of agency,
partnership and/or joint venture with ITXC.
"Origination Services" means the services provided by an Originating
Affiliate to its Subscribers.
"Secure Location" means a safe access restricted repository, which may
include a web-site, secure Internet site, electronic mall or other electronic
address to be used by ITXC to provide Confidential Information to Company,
including pricing, Coverage Areas, service bulletins or other information of
interest.
"Settlement" means the process of balancing the net payments owed by
Company for WWeXchange Service Value, if any, with the net payments owed by ITXC
for Termination Services Value, if any. The Settlement amount equal WWeXchange
Services Value, if any, minus Termination Services Value, if any.
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"Settlement Statement" means the billing statement generated by ITXC
and/or its agents through application of the billing process.
"Subscriber" means a customer of Company that uses the ▇▇▇▇.▇▇▇(SM).
"Termination Services" means the use of all necessary Equipment and
facilities (including PSTN) to convert Internet telephony on ▇▇▇▇.▇▇▇(SM) to
PSTN and connect it to a telephone.
"Termination Services Value" means the total amount charged to ITXC by a
terminating affiliate for Units of validly Authenticated and Authorized
Termination Services purchased by ITXC from Company in a given billing period
pursuant to the Agreement or this Addendum using rates specified in the
applicable Affiliate Cost Addendum, the form of which is attached as Exhibit
[A].
"Unit" means any unit of time by which Services are measured. Units for
origination shall be billed in increments of one second with a one-second
minimum period, except for Internet Telephony calls terminating in Mexico, which
shall be billed in 60-second increments with 60-second minimums.
"WWeXchange Services" means wholesale phone-to-phone internet telephone
services over ▇▇▇▇.▇▇▇(SM).
"WWeXchange Services Value" means the total amount charged to Company as
an originating affiliate by ITXC for Units of WWeXchange Services used by
Company in a given billing period pursuant to the Agreement or this Addendum at
the rates specified on the Secure Location.
8. NO MODIFICATION: CONFLICT. Unless expressly modified herein, the Agreement
remains unmodified ad in full force and effect. In the event of a conflict
between the terms of this Addendum and the Agreement, the terms of this Addendum
shall control.
9. ENTIRE AGREEMENT. This Addendum embodies the entire agreement and
understanding of the Parties with respect to the supplementing of the Agreement
concerning the matters described herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings with respect thereto
other than those expressly set forth herein.
10. COUNTERPARTS. This Addendum may be executed in several counterparts, each of
which shall constitute an original, but all of which shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have executed this WWeXchange Origination
Services Addendum to ▇▇▇▇.▇▇▇(SM) Services Agreement as of the date first
written above.
By: ITXC Corp. By: Swiftnet Ltd.
/s/ A. Keznan MD
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Authorized Signature Authorized Signature
A. Keznan MD
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Name and Title Name and Title
6/3/2003
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Date Date