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INTERNET SERVICES RESELLER AGREEMENTFOR RESELLERS RESIDENT IN QUEBEC, FRANCE AND
OTHER FRANCOPHONE JURISDICTIONS: RESELLER AND MCI HAVE EXPRESSLY REQUESTED THAT
THE AGREEMENT AND ALL DOCUMENTS AND NOTICES RELATED TO THIS AGREEMENT BE DRAFTED
IN THE ENGLISH LANGUAGE. LE CLIENT ET WORLDCOM ONT DEMAND EXPRESS MENT QUE LA PR
SENTE ENTENTE ET TOUS LES DOCUMENT ET AVIS CONNEXES SOIENT R DIG S EN ANGLAIS.
This Internet Services Reseller Agreement ("Agreement") is made and entered into
by and between UUNET Technologies, Inc. ("MCI"), a Delaware corporation d/b/a
MCI Internet Wholesale, a division of the MCI operating unit of WorldCom, Inc.,
and GTC Telecom Corp. ("Reseller"), a Nevada corporation. This Agreement will be
effective as of the date executed by both of the parties (the "Effective Date").
For good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties agree as follows.
1. The initial term of this Agreement ("Initial Term") will expire two (2)
years from commencement of the first full monthly billing cycle following the
Service Commencement Date (as such term is defined in the attached Terms and
Conditions). The term will automatically renew for additional, successive one
(1) year terms (each, a "Renewal Term") at the expiration of the Initial Term
and at each anniversary thereof, unless either party provides the other notice
to the contrary at least sixty (60) days prior to the expiration of the then
current term, in which case this Agreement will terminate as of the expiration
of the then current term.
2. Reseller will pay MCI for the Service (as such term is defined in the
attached Terms and Conditions) in accordance with the pricing model attached
hereto and identified as Schedule A.
3. The parties' rights and obligations under this Agreement are set forth in
the attached Terms and Conditions identified as Schedule B, all of which are
incorporated by reference herein.
4. Reseller's address for purposes of the Notice provisions in the attached
Terms and Conditions will be as follows:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
attention: ▇▇▇▇ ▇▇▇▇▇▇, CEO
IN WITNESS WHEREOF, MCI and Reseller have executed this Agreement on the dates
noted below.
UUNET TECHNOLOGIES, INC. GTC TELECOM CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: ▇▇▇▇ ▇. ▇▇▇▇ Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Date: 5/20/02 Date: 5/15/02
SCHEDULE A
SERVICE FEES AND CHARGES
START-UP FEE: Reseller shall pay a one-time start-up fee of $20,000. Such
start-up fee is due upon and shall be payable in connection with execution of
this Agreement. MCI shall issue a credit to Reseller in the seventh month of
service equal to such start-up fee if (a) Reseller's actual number of Seen Users
(as defined herein) meets or exceeds 5,000 by the end of the first six (6) full
monthly billing cycles following the Service Commencement Date, and (b) Reseller
timely meets all its obligations under the Agreement during such billing cycles.
II. DIAL-UP SERVICES: Unless otherwise noted, all dial-up Service fees are
for dial-up access to the Internet using MCI's dial access network facilities
via a point of presence ("POP") for the contiguous ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
A. LOCAL DIAL-UP SERVICE.
Monthly Fee. Reseller shall assign each End User a unique identifier (e.g.,
"user@realm") for billing purposes, the structure of which must be approved in
advance by MCI. Reseller shall pay a monthly fee to MCI equal to (i) the number
of End Users that MCI identifies on its network as using MCI's local dial-up
service (each, a "Seen User") in the applicable billing cycle multiplied by (ii)
the applicable Monthly Fee Per Seen User determined in accordance with the
following table.
Number of Seen Users Monthly Fee Per Seen User
0 - 25,000 $xxxx
25,001+ renegotiate pricing
Once Reseller has reached 25,000 Seen Users on the network, MCI will in good
faith renegotiate the Seen User rate. Any new rate shall be effective beginning
the first month following Reseller reaching 25,000 Seen Users on the network.
Excess Usage. For each End User that exceeds 150 hours of usage in a given
monthly billing cycle, Reseller agrees to pay a surcharge of $x.xx per hour or
any portion of usage in excess of 150 hours per End User.
Pricing Adjustment. If Reseller's average usage per End User exceeds 35 hours in
any two (2) consecutive billing cycles, at MCI's request, the parties shall
cooperate in good faith to negotiate mutually agreeable increases to some or all
of the Monthly Fee Per Seen User amounts listed in the above table. If the
parties are unable to reach agreement on such increases within the next
following fifteen (15) days, MCI may unilaterally increase some or all of such
Monthly Fee Per Seen User amounts upon at least fifteen (15) days notice to
Reseller. Should MCI unilaterally implement any such increases in accordance
with the foregoing, Reseller shall have the right to terminate this Agreement
within the fifteen (15) day period following the effective date of such increase
upon at least fifteen (15) days advance notice to MCI without incurring the
early termination fee listed in Section IV below. If Reseller fails to terminate
this Agreement within fifteen (15) following the effective date of such increase
the new Monthly Fee Per Seen User amount shall apply.
Regional Roaming. Reseller shall pay a regional roaming surcharge of $.xx per
hour for usage via a POP for Canada and $x.xx per hour for the non-contiguous
United States and its territories (i.e., Hawaii, Alaska, Puerto Rico and U.S.
Virgin Islands).
Global Roaming. Reseller shall pay a global roaming surcharge of $x.xx per hour
for usage via a POP located outside of Canada or the United States and its
territories.
ISDN. One hour of ISDN use on two B channels will be billed as two hours of
usage.
B. TOLL FREE DIAL-UP SERVICE. Allows toll-free access to MCI's dial
access network facilities via U.S. and Canadian POPs at the rate of $x.xx per
End User per hour ($xx.xx per End User per hour if via a POP located in Central
or South America). If such Service is requested by Reseller, MCI may elect to
provide such toll-free Service conditioned upon Reseller's agreement to certain
reporting or similar requirements, including but not limited to Reseller
providing a reasonably accurate six (6) months' rolling forecast, updated in the
first week of every calendar month, of the anticipated peak simultaneous End
Users of the Service. MCI will notify Reseller once the toll-free Service has
been activated and is available to Reseller's End Users.
C. NETWORK ACCESS IDENTIFIER ("NAI") SERVICE. MCI will provide Reseller
one realm (e.g.,"@▇▇▇▇▇.▇▇▇") at no charge. Reseller may request additional
realms or subrealms (e.g.,"@▇▇▇▇▇▇▇▇.▇▇▇▇▇.▇▇▇"). The charge for additional
realms/subrealms are (i) a one time start-up charge of $500.00per Realm/subrealm
and (ii) $250.00 per month per additional realm/subrealm. MCI may refuse to
establish any particular requested realm/subrealm at its discretion at any time
for any reason. Billing for NAI monthly fees will commence in the first full
calendar month after commencement of any requested NAI service. Reseller may
terminate any NAI service upon 30 days' notice to MCI; provided, however, that
Reseller will not be entitled to any pro-rata or other credit or refund of any
NAI Service charges relative to the balance of the month in which the
termination becomes effective.
D. MONTHLY MINIMUM AMOUNTS. Notwithstanding anything to the contrary in
the foregoing, Reseller's aggregate monthly charge for the Dial-Up Services
shall be equal the greater of (i) the aggregate combined charges for the Local
Dial-Up Service and the Toll Free Dial-Up Service as determined above, or (ii)
the monthly minimum amount ("Monthly Minimum Amount") corresponding to the
applicable billing cycle set forth in the following table.
Billing Cycle Monthly Minimum Amount
1 $10,300.00
2 $23,175.00
3 $38,625.00
4 $51,500.00
5 $51,500.00
6 $51,500.00
7 $51,500.00
8 $51,500.00
9 $51,500.00
10 $51,500.00
11 $51,500.00
12 and beyond $51,500.00
For purposes of determining whether billing based on actual use exceeds or is
less than the Monthly Minimum Amount, billing based on actual use will include
billing for dial-up traffic (including VIP toll free) but will not include one
time billing fees, VIP Radius accounting fees, NAI fees, or charges related to
Internet connectivity or equipment. In the event the Service, from either a
quality, coverage or capacity standpoint, decreases to such an extent that the
Reseller is significantly harmed during the term of this Agreement, then MCI
shall at Reseller's request meet to discuss, and where appropriate shall
negotiate with Reseller in good faith to amend and modify the Monthly Minimums
imposed on Reseller. If the parties are unable to reach a new agreement
regarding the possible modification of the Monthly Minimums within thirty (30)
days from the Reseller's request to meet, then Reseller may terminate the
Agreement without penalty upon thirty (30) days notice. Provided however, any
such approved early termination shall not release the Reseller from any
obligations (financial or otherwise) incurred or otherwise owed to MCI by
Reseller prior to the effective date of such termination.
III. OPTIONAL SERVICES:
RADIUS ACCOUNTING SERVICE. Reseller may request to receive data feeds showing
End Users' use (login and logout) of the Dial-Up Services. Reseller shall have
the sole responsibility to analyze the statistics provided through the Radius
Accounting Service (e.g., identify and investigate duplicate log-ins) and take
appropriate action. The information provided through MCI's Radius Accounting
Service is not for use in calculating monthly charges for the Dial-Up Services.
MCI's monthly invoice for such Services shall be the definitive calculation of
Reseller's monthly Service charges. MCI's Radius Accounting Service includes one
set of billing session records per month. The charge for MCI's Radius Accounting
Service is $750.00 per month, commencing in the first full monthly billing cycle
following authorization of such Service.
IV. EARLY TERMINATION FEE: In the event this Agreement is terminated by MCI
due to a Default of Reseller or by Reseller for its convenience, Reseller shall
pay to MCI, in addition to any other amounts due and owing, a lump sum fee equal
to seventy-five percent (75%) of the balance of the aggregate Monthly Minimum
Amounts that MCI would have been entitled to during the then Initial Term or
Renewal Term had the Agreement not been terminated.
SCHEDULE B
TERMS AND CONDITIONS
1. DEFINITIONS.
1.1 "Affiliate" means an entity controlled by, controlling, or under
common control with, the party to which it relates.
1.2 "Confidential Information" means any business, marketing, sales,
financial or technical information, including, without limitation, any
information relating to the present and future business operations or financial
condition, and all other information of any kind which should reasonably be
deemed confidential or proprietary, disclosed by one party to the other pursuant
to this Agreement. Notwithstanding the above, "Confidential Information" does
not include information that (a) is or becomes generally known or available by
publication, commercial use, or otherwise through no fault of the receiving
party; (b) was known by the receiving party at the time of disclosure by the
disclosing party as evidenced by competent written proof; (c) is independently
developed by the receiving party without use of the disclosing party's
Confidential Information; or (d) is lawfully obtained from a third Person who
has the right to make such disclosure.
1.3 "End User" means an end user or customer of Reseller that, by
virtue of the reseller relationship established hereunder, is an end user of the
Service.
1.4 "IP Numbers" means Internet Protocol numbers assigned by MCI to
End Users, in connection with the Service.
1.5 "Person" means any individual, company, corporation, firm,
partnership, joint venture, entity, association, organization or trust, in each
case whether or not having a separate legal identity.
1.6 "Policy" means the UUNET Acceptable Use Policy discussed in more
detail below.
1.7 "Service" means the Internet dial access and other services
provided to Reseller under this Agreement.
1.8 "Service Commencement Date" means the date on which the technical
testing contemplated in Section 2 below is completed to the mutual satisfaction
of the parties.
2. SCOPE.
2.1 AUTHORITY. MCI grants Reseller a non-exclusive right to resell the
dial-up access provided under this Agreement to End Users resident in North
America only in accordance with the terms of this Agreement. In connection
therewith, Reseller will use its best efforts to promote, market and sell the
Service to End Users. Notwithstanding anything to the contrary herein, MCI
expressly reserves the right to promote, solicit, market and sell the Service to
End Users and other Persons.
2.2 TESTING. MCI's provision of the Service will be contingent upon the
completion of technical testing to the mutual and reasonable satisfaction of the
parties. The parties will cooperate and work with each other in good faith to
complete such testing within the first thirty (30) days following the Effective
Date. If at the end of this thirty (30) day period either party reasonably
declares the testing results to be unsatisfactory, the parties will cooperate to
correct the condition within the following ten (10) days or such longer period
as the parties may mutually agree ("Correction Period"). Either party may
terminate this Agreement without penalty upon notice to the other party if such
condition is not corrected at the end of the Correction Period. If no such
notice of termination is given within twenty (20) days following the Correction
Period, the technical testing will be deemed completed to the satisfaction of
both parties. Monthly Minimum amounts set forth in Schedule A will begin to
accrue from the first day of the month following the Service Effective Date. MCI
will have the right to terminate the Agreement upon notice to Reseller if the
parties fail to complete such testing within sixty (60) days following the
Effective Date.
2.3 INTERNET PROTOCOL NUMBERS. Any IP Numbers assigned by MCI to
Reseller and ultimately End Users, in connection with a Service may be used only
in connection with that Service for use by that End User only, to connect to the
Internet during that dial-up session only; no other use of an IP Number is
permitted. Neither the Reseller nor the End User will have any other interest in
or right to the IP Numbers. MCI may terminate an End User's use of an IP Number,
at its sole discretion, at any time. If Reseller discontinues use of a Service
for any reason, or this Agreement expires or is terminated for any reason,
Reseller's and all of Reseller's End Users' rights to use the IP Numbers will
terminate and Reseller will immediately return the IP Numbers to MCI.
2.4 ACCEPTABLE USE POLICY. Use of any Service must comply with the
then-current version of the Acceptable Use Policy ("Policy") for the countries
from which Reseller's End Users use a Service (and in the event no Policy exists
for a country, the ▇.▇. ▇▇▇▇▇▇ applies). The applicable Policy is available at
the following URL: ▇▇▇.▇▇.▇▇▇/▇▇▇▇▇ or other URL designated by MCI. Reseller
will ensure that the Policy is adhered to by each End User. MCI reserves the
right to change the Policy from time to time, effective upon posting of the
revised Policy at the designated URL or other notice to Reseller.
2.5 SERVICE MARKS, TRADEMARKS AND NAME. Reseller will have no right or
authority to market, promote or sell the Service under any brand, trade or
service marks owned by or licensed to MCI or its Affiliates. Reseller's breach
of this Section will be deemed a material breach of the Agreement, justifying
immediate termination of this Agreement by MCI.
2.6 CREDIT REVIEW. The right and authority granted herein is subject to
and conditioned upon Reseller's satisfaction of MCI's standard credit review
policies and procedures. MCI reserves the right to withhold its initiation of
any Service pending its initial credit review and to condition its provision of
the Service at any time upon Reseller's satisfaction of credit terms specified
by MCI based on its initial or subsequent credit review and Reseller's actual
and expected usage levels (which terms may include, without limitation, security
for payments).
2.7 SERVICE SUSPENSION RIGHTS. In addition to any other available
rights or remedies, MCI may withhold initiation of any Service and/or
immediately suspend provision of Service if (a) there is a material adverse
change in Reseller's creditworthiness, (b) Reseller provides false information
to MCI regarding the Reseller's identity, creditworthiness, or its planned use
of the Service, (c) interruption of Service is necessary to prevent or protect
against fraud or otherwise protect MCI's personnel, facilities or services, (d)
Reseller interferes with MCI's provision of services to any other customer or
reseller, or (e) there is a violation by Reseller or its End Users of Sections
2.3 (Internet Protocol Numbers) or 2.4 (Acceptable Use Policy) above. A material
adverse change in Reseller's creditworthiness includes, without limitation, (i)
the acquisition of a controlling interest in Reseller by a Person which is
insolvent, subject to bankruptcy or insolvency proceedings, owes past due
amounts to MCI or its Affiliates or is a materially greater credit risk than
Reseller; or (ii) Reseller being subject to or having initiated bankruptcy or
insolvency proceedings.
3. RESELLER RESPONSIBILITIES.
3.1 FORECASTS. Reseller recognizes MCI's reliance on the reasonable
accuracy of usage forecasts for network expansion and engineering. Accordingly,
Reseller will issue a six (6) months' rolling forecast to MCI of Reseller's best
estimate of anticipated users and hours over such six (6) month period, which
Reseller will update in the first week of every calendar month thereafter.
Reseller will also provide advance notice to MCI (as soon as it is available) of
planned significant marketing programs which reasonably could be expected to
affect the expected future load on any MCI network facility, particularly with
respect to loads in particular geographical locations and POPs. Reseller's
failure to provide such forecasts at such required times would be a material
breach of this Agreement.
3.2 TECHNICAL REQUIREMENTS. Reseller will maintain dedicated Internet
connectivity service to MCI, purchased from an MCI Affiliate, of at least T1
bandwidth to be used exclusively for RADIUS authentication of End Users.
Reseller will provide, maintain and operate the RADIUS server in a secure
environment following appropriate practices to ensure that the Server is
available for and accurately performs End User authentication. Reseller will
equip and operate the RADIUS server with software protocols that are fully
compatible with MCI's network facilities. In particular, Reseller will apply
Ascend-Data-Filter (242) RADIUS attributes, as specified by MCI separately, to
all End Users to prevent End Users from reaching unauthorized electronic mail
servers (e.g., for the transmission of "spam" email). Reseller will use
appropriate software, procedures and safeguards to ensure that only accurate
information is transmitted from Reseller's RADIUS server to MCI's network
facilities. Reseller will immediately remedy any problems resulting in
transmission of incorrect information.
3.3 OPERATIONS. Reseller will be solely responsible for the provision
of any and all sales and associated activities (including, without limitation,
the provision of customer support services to its End Users and the ▇▇▇▇▇▇▇▇ to
and collections from End Users) and will be solely responsible for any and all
costs and expenses related thereto. Reseller will not misrepresent the Service
to End Users or otherwise make any claims, representations or warranties in
connection with the Service other than expressly authorized by MCI.
3.4 END USER TERMS AND CONDITIONS. Reseller will be responsible for the
compliance by each End User with all applicable terms of the Agreement. Reseller
will adopt and maintain an acceptable use policy at least as restrictive as the
Policy. Without limiting the generality of the foregoing, Reseller will require
End Users to affirmatively accept and comply with terms and conditions in
substance identical to those provisions of the Agreement dealing with the
following subjects: disclaimer of warranties; content disclaimer; acceptable use
policy; limitations of liability; confidentiality; data protection; and export
restrictions.
4. MCI RESPONSIBILITIES.
4.1 MCI will furnish the Service as requested by Reseller in accordance
with the terms of this Agreement. MCI may modify the Service (including any
related equipment, support or consulting), or substitute functionally comparable
service, equipment, support or consulting for any Service furnished under this
Agreement, at any time.
4.2 MCI will provide Reseller's designated points of contact with a
toll-free number for 24x7x365 technical support for the Service. This number is
to be used only by Reseller and may not be released to End Users. Reseller will
provide MCI with access to its personnel on a 24x7x365 basis as necessary for
problem resolution. In addition, MCI will provide Reseller with a username and
password to access the following URL
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇.▇▇▇/▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇ ("Reseller
Web Partition"). The Reseller Web Partition will give Reseller access to
information such as daily usage reports and contact information for the MCI
account team assigned to Reseller. MCI's relationship under this Agreement is
solely with Reseller and not with any End Users. Reseller will be responsible
for all End User pricing, RADIUS authentication, technical support, billing, and
collections.
5. RESELLER DATA AND PRIVACY.
5.1 Reseller acknowledges that MCI, its Affiliates and agents will, by
virtue of the provision of the Service under this Agreement, come into
possession of information and data regarding Reseller and its End Users. This
information and data ("Reseller Data") may include, but is not limited to, data
transmissions (including the originating and destination numbers and IP
addresses, date, time and duration of voice or data transmissions, and other
data necessary for the establishment, billing or maintenance of the
transmission), other data containing personal and/or private information of
Reseller and its End Users, and other data provided to or obtained by MCI, its
Affiliates and agents in connection with the provision of the Service under this
Agreement.
5.2 Reseller acknowledges and agrees that MCI, its Affiliates and
agents may use, process and/or transfer Reseller Data (including transfers to
Affiliates and agents and to entities in countries that do not provide statutory
protections for personal information): (a) in connection with provisioning of
the Service; (b) to incorporate the Reseller Data into databases controlled by
MCI and its Affiliates for the purpose of providing the Service; administration;
provisioning; billing and reconciliation; verification of Reseller identity,
solvency and creditworthiness; maintenance, support and product development;
fraud detection and prevention; sales, revenue and customer analysis and
reporting; and market and customer use analysis; and (c) to communicate to
Reseller about products and services of MCI and its Affiliates by voice, letter,
fax, or E-mail. RESELLER MAY WITHDRAW CONSENT FOR SUCH COMMUNICATIONS (OR ANY
USE, TRANSFER OR PROCESSING OF RESELLER DATA EXCEPT FOR THAT REQUIRED TO
PROVISION, ADMINISTER, ▇▇▇▇ OR ACCOUNT FOR THE SERVICE) BY SENDING WRITTEN
NOTICE TO MCI IN ACCORDANCE WITH THE NOTICE PROVISION SET FORTH BELOW.
5.3 Reseller warrants that it has obtained and will obtain all legally
required consents and permissions from relevant parties (including subjects of
Reseller Data) for the use, processing and transfer of Reseller Data as
described in this Section.
6. FEES, CHARGES AND PAYMENT TERMS.
6.1 Reseller will pay MCI for the Service in accordance with the
Schedule A pricing schedules. MCI reserves the right to modify the fees and
charges set forth in Schedule A; provided, however, that (a) MCI may not
increase such fees and charges until expiration of the Initial Term or the then
applicable renewal term, and (b) MCI may increase such fees and charges only
upon at least ninety (90) days' advance notice to Reseller. Prices charged by
Reseller to End Users for the Service will be determined solely by Reseller.
Reseller will be liable to MCI for all fees and charges accruing under this
Agreement, whether or not Reseller collects any amounts from its End Users.
6.2 MCI will invoice Reseller on a monthly basis for all fees and
charges accruing hereunder. Such fees and charges will be due and payable by
Reseller within thirty (30) days following the date of MCI's invoice. Late
payment charges will be added to any balance not paid by such due date from and
after the due date at the lesser of one and one half percent (1 %) per month or
the maximum rate allowed by law. All sales, use and other such governmentally
imposed or authorized taxes, fees, surcharges and/or assessments relating to
this Agreement and/or the Service will be paid by Reseller. If Reseller is
exempt from any such taxes, fees, surcharges and/or assessments, Reseller will
submit its tax identification number and exemption certificate in conjunction
with the execution and delivery of this Agreement.
6.3 If Reseller fails to remit payment of any undisputed balances
within thirty (30) days of the payment due date, Reseller will have twenty (20)
days upon written notification from MCI to remit payment of any undisputed
balance or MCI will have the right, in addition to any other rights it might
have under this Agreement, to suspend provision of the Service until such
overdue balances are paid current.
6.4 Notwithstanding anything to the contrary herein, if Reseller in
good faith disputes any portion of a payment claimed by MCI, Reseller may notify
MCI of such dispute and withhold payment to the extent reasonably contested by
Reseller, with the uncontested amounts being due and payable as set forth above.
In such an event, the parties will negotiate in good faith to resolve the
dispute in a timely fashion. If Reseller does not give MCI notice of any such
dispute within six (6) months of the invoice date, such invoice will be deemed
to be correct and binding on Reseller.
7. TERM AND TERMINATION.
7.1 The Initial Term and Renewal Terms will be as designated in the
signature page to this Agreement. This Agreement may be terminated (a) as
reflected in the signature page of this Agreement, (b) by the non-defaulting
party upon a Default and the failure of the defaulting party to cure the Default
within thirty (30) days following receipt of notice of the Default, and (c) by
Reseller for its convenience upon at least thirty (30) days advance notice to
MCI. In the event this Agreement is terminated by MCI due to a Default of
Reseller or by Reseller for its convenience, Reseller will pay to MCI, in
addition to any other amounts due and owing, the early termination fee specified
in Schedule A. As used herein, the term "Default" will mean (i) the failure by a
party to observe or perform in any material respect any of its obligations under
this Agreement; or (ii) a party's insolvency, assignment for the benefit of
creditors, appointment or sufferance of appointment of a trustee, receiver or
similar officer, or any voluntary or involuntary proceeding seeking
reorganization, rehabilitation, liquidation or similar relief under bankruptcy,
insolvency or similar debtor-relief statutes.
7.2 Upon any termination in accordance with the terms of this
Agreement, each party will be released from all obligations and liabilities to
the other occurring or arising after the date of such termination, except with
respect to those obligations which by their nature are designed to survive
termination; provided that no such termination will relieve Reseller from any
amount then due and owing or either party from any liability arising from any
breach of this Agreement. Termination of this Agreement will not affect or
diminish Reseller's obligation to make payment to MCI for Service provided
before or after the date of termination, and such obligation will survive
termination of this Agreement. Although MCI will have no obligation to do so,
MCI's provision of Service to Reseller following the date of any such
termination will be expressly conditioned upon and subject to Reseller's
compliance with the terms of this Agreement, including, without limitation,
Reseller's timely payment for any Service provided.
8. DISCLAIMERS AND LIMITATIONS OF LIABILITY.
8.1 MCI exercises no control over and has no responsibility for the
content of the information passing through its network, a Service or any
equipment maintained by Reseller or any of its End Users. MCI specifically
denies any responsibility for the accuracy or quality of information obtained
through its network, a Service or any equipment maintained by Reseller or any of
its End Users. Reseller's and any End Users' use of any information obtained
via MCI's network, a Service or any equipment maintained by Reseller or any of
its End Users will be at Reseller's and the End User's own risk.
8.2 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, MCI MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICES, RELATED PRODUCTS, EQUIPMENT,
SOFTWARE OR DOCUMENTATION. MCI SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT
OF THIRD PARTY RIGHTS.
8.3 Neither party will be liable to the other for any indirect,
consequential, exemplary, special, incidental or punitive damages, including,
without limitation, loss of use or lost business, revenue, profits, or goodwill
arising in connection with this Agreement, under any theory of tort, contract,
indemnity, warranty, strict liability or negligence, even if the party knew or
should have known of the possibility of such damages. The total liability of MCI
to Reseller in connection with this Agreement for any and all causes of actions
and claims, including, without limitation, breach of contract, breach of
warranty, indemnity, negligence, strict liability, misrepresentation and other
torts, is limited to the lesser of: (a) direct damages proven by Reseller; or
(b) the amount paid by Reseller to MCI under this Agreement for the one (1)
month period prior to accrual of the most recent cause of action.
9. INDEMNITY. Reseller will defend, indemnify, and hold MCI and its
Affiliates harmless from and against any and all liabilities, losses, damages
and costs, including reasonable attorney's fees, resulting from, arising out of,
or in any way connected with (a) any breach by Reseller or End User of any
warranty, representation, agreement, or obligation contained herein; (b) the
performance of Reseller's duties and obligations under this Agreement; (c) End
User's use of the Service (d) any realm or subrealm administered on Reseller's
behalf that violates the service ▇▇▇▇, trademark or other intellectual property
rights of any third Person; (e) any claim by an End User arising out of or
relating to (i) any representation or warranty made by Reseller that exceeds the
scope of representations or warranties made by MCI to Reseller in the Agreement,
(ii) any processing of data by MCI permitted under the Agreement, and/or (iii)
any breach by Reseller of its obligations under this Agreement; and (f) any
third Person claim or allegation arising out of or relating to use of MCI's
network or a Service, including any claim or allegation which, if true, would
constitute a violation of the Policy. Each party will promptly notify the other
party of any such claim or allegation. Reseller's obligations under this Section
will survive the termination of this Agreement.
10. CONFIDENTIALITY. Neither party will use the other's Confidential
Information for purposes other than those necessary to further the purposes of
this Agreement. Neither party will disclose to third Persons the other's
Confidential Information without the prior written consent of the other party.
The terms and conditions of this Agreement are confidential and restricted as to
disclosure to any third Person. Should either party be required under applicable
law, rule or regulation, or pursuant to the order of any court or governmental
entity of legal process of any governmental entity of competent jurisdiction to
disclose Confidential Information of the disclosing party in the receiving
party's possession, custody or control, the receiving party will use
commercially reasonable efforts to: (a) limit such disclosure; (b) make such
disclosure only to the extent so required; and (c) cooperate with the original
disclosing party in attempting to stop or limit such disclosures. The parties'
obligations hereunder with respect to Confidential Information will survive the
expiration or earlier termination of this Agreement.
11. EXPORT. Reseller and MCI acknowledge that the export, import and use of
certain hardware, software, and technical data provided hereunder is regulated
by the United States and other governments and agrees to comply with all
applicable laws and regulations, including the U.S. Export Administration Act,
the regulations promulgated thereunder by the U.S. Department of Commerce, and
any other applicable laws or regulations. Reseller represents and warrants that
Reseller is not subject to any government order suspending, revoking or denying
export or import privileges necessary for the performance of Reseller's or MCI's
obligations hereunder.
12. NOTICE. Any notice or other communication required or permitted to be
given hereunder will be in writing in English and may be sent via hand delivery,
telecopy, overnight courier or United States Mail and will be deemed to have
been received when (a) delivered in person or received by telecopy, (b) one (1)
business day after delivery to the office of such overnight courier service, or
(c) three (3) business days after depositing the notice in the United States
mail with postage prepaid and properly addressed to the other party, at the
following respective addresses:
To Reseller: See address on signature page.
To MCI: MCI Internet Wholesale
Internet Wholesale Services
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: VP, Internet Wholesale Services
Facsimile:-703-886-0549
Copy to: MCI Internet Wholesale
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (Pcy I)
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as either party may designate as to itself by like
notice.
13. DISPUTE RESOLUTION. Any dispute arising out of or related to this
Agreement, which cannot be resolved by negotiation, will be settled by binding
arbitration in accordance with the J.A.M.S./ENDISPUTE Arbitration Rules and
Procedures, as amended by this Agreement. The costs of arbitration, including
the fees and expenses of the arbitrator, will be shared equally by the parties
unless the arbitration award provides otherwise. Each party will bear the cost
of preparing and presenting its case. All arbitration proceedings will be held
at the location designated by the party seeking the arbitration. The parties
agree that this provision and the Arbitrator's authority to grant relief will be
subject to the United States Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"),
the provisions of this Agreement, and the ABA-AAA Code of Ethics for Arbitrators
in Commercial Disputes. The parties agree that the arbitrator has no power or
authority to make awards or issue orders of any kind except as expressly
permitted by this Agreement, and in no event will the arbitrator have the
authority to make any award that provides for punitive or exemplary damages. The
Arbitrator's decision will follow the plain meaning of the relevant documents,
and is final and binding. The award may be confirmed and enforced in any court
of competent jurisdiction. All post-award proceedings are governed by the USAA.
14. MISCELLANEOUS.
14.1 LAWS, RULES, AND REGULATIONS. This Agreement is subject to
all applicable laws, rules, regulations, and ordinances, including, without
limitation, the Communications Act of 1934 and the Telecommunications Act of
1996, as amended, and all rules and regulations promulgated thereunder.
14.2 ANNOUNCEMENTS. Neither party will make or issue any public
announcement regarding this Agreement or the relationship established hereunder
without the prior written consent of the other party.
14.3 FORCE MAJEURE. Neither party will be liable for any
nonperformance under this Agreement due to causes beyond its reasonable control
that cannot be avoided or overcome by commercially reasonable measures.
14.4 ASSIGNMENT. This Agreement may not be assigned or transferred
by either of the parties to any other Person without the prior written consent
of the other party. Notwithstanding the above, MCI may assign this Agreement,
without notice to or the consent of Reseller, to an Affiliate of MCI or to any
Person acquiring all or substantially all of the assets of MCI. In the event of
any assignment of this Agreement, all terms and conditions hereof will be
binding upon and inure to the assignee as though such assignee were an original
party hereto.
14.5 INDEPENDENT PARTIES. None of the provisions of this Agreement
will be deemed to constitute a partnership, joint venture, or any other such
relationship between the parties, and neither party will have any authority to
bind the other in any manner. Neither party will have or hold itself out as
having any right, authority or agency to act on behalf of the other party in any
capacity or in any manner, except as may be specifically authorized in this
Agreement.
14.6 APPLICABLE LAW. The validity, construction and performance of
this Agreement will be governed by and construed in accordance with the laws of
the State of Virginia , without regard to the principles of conflict of law.
14.7 ATTORNEYS' FEES. If any action will be brought on account of
any breach of or to enforce or interpret any of the terms, covenants or
conditions of this Agreement, the prevailing party will be entitled to recover
from the other, as part of the prevailing party's costs, a reasonable attorneys'
fee
14.8 SEVERABILITY. If any provision of this Agreement will be held
to be illegal, invalid, or unenforceable, such provision will be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
validity, legality, and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.
14.9 NO WAIVER. No delay or failure by either party in exercising
any right under this Agreement, and no partial or single exercise of that right,
will constitute a waiver of that or any other right. Failure to enforce any
right under this Agreement will not be deemed a waiver of future enforcement of
that or any other right.
14.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
14.11 HEADINGS. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
14.12 CONSTRUCTION. This Agreement has been negotiated by the parties
and their respective counsel. This Agreement will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party based on draftsmanship of the Agreement or otherwise.
14.13 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
and replaces all prior or contemporaneous understandings or agreements, written
or oral, between the parties or any of their respective Affiliates regarding
such subject matter. No amendment to or modification of this Agreement will be
binding unless in writing and signed by a duly authorized representative of both
parties.