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EXHIBIT 10.34
MCI WORLDCOM ON-NET VOICE AGREEMENT
This On-Net Voice Agreement (the "Agreement") for services described below is
made by and between MCI WORLDCOM Communications, Inc., formerly known as and
doing business as WorldCom Technologies, Inc., for itself and on behalf of its
U.S.-based affiliates ("MCI WorldCom"), and
Customer Name: APERIAN, INC. (hereinafter "Customer")
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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Customer agrees to an On-Net Voice term plan and Annual Volume Commitment
("AVC") or Monthly Volume Commitment ("MVC") as set forth in Schedule A,
attached hereto and incorporated herein. Effective upon the next billing cycle
following MCI WorldCom's execution of this Agreement ("Effective Date"),
Customer shall pay the rates and receive the discounts for On-Net Voice Service
associated with the selected Term and Monthly Volume Commitment (MVC) or Annual
Volume Commitment (AVC) as set forth in WTI Tariff FCC No. 2 (such discounts
referred to herein as the "Base Discounts") with the exceptions shown on
Schedule A. Except as expressly provided to the contrary, the discounts and/or
rates set forth in Schedule A are in lieu of, and not in addition to, any
discounts, promotions and/or credits (Tariffed or otherwise). AVC or MVC is
calculated net of discounts. All charges for other services, if any, will be
as set forth in the Tariffs applicable to those services at the time they are
provided to Customer.
SERVICE PROVISIONING AND RECEIPT: MCI WorldCom will provide to Customer
interstate and international Services pursuant to WTI Tariff FCC No. 1, and all
other applicable Tariffs of MCI WorldCom and its U.S.-based affiliates
(collectively, the "Tariff"). This Agreement incorporates by reference the
terms of the Tariff. MCI WorldCom may modify the Tariff from time to time in
accordance with law and thereby affect the services furnished to Customer. In
the event of inconsistency between the terms of the Tariff and this Agreement,
the Tariff will be deemed controlling. The rates set forth in the Tariff do not
include, and the discounts set forth in this Agreement and the Tariff do not
apply to, the following: charges for MCI WorldCom services other than those set
forth in this Agreement; non-Tariffed products, access or egress (or related)
charges imposed by third parties; taxes or tax-like surcharges; and other
Tariffed charges. Customer agrees to pay all these additional charges, to the
extent applicable, in addition to the charges set forth in this Agreement. If
MCI WorldCom voluntarily or involuntarily as a result of government or judicial
action cancels the Tariff in whole or in part, then effective on such
cancellation this Agreement shall, as to canceled Tariff provisions previously
applicable to this Agreement, incorporate by reference the substantively similar
provisions of MCI WorldCom's standard Guide to Services and Pricing ("Guide"),
as amended by MCI WorldCom from time to time. For purposes of such provisions,
all references to the Tariff shall include reference to the Guide.
TARIFF OPTION: MCI WorldCom shall, if required, file a Tariff option (a
"Tariff Option") consistent with the terms of Schedule A, which is incorporated
into this Agreement by this reference.
SERVICE CONSIDERATIONS: This Agreement shall be binding upon acceptance by MCI
WorldCom. Acceptance of this Agreement by MCI WorldCom is subject to Customer
meeting the terms and conditions set forth in the Tariffs and the MCI WorldCom
Commercial Customer Profile Attachment. The initial Term of this Agreement
shall begin not later than the first day of the first full monthly billing
period following acceptance of this Agreement by MCI WorldCom ("Agreement Start
Date") Customer shall not disclose the terms of this Agreement to any third
party.
APPLICABLE SERVICES: This On-Net Voice Agreement includes only those services
set forth in this Agreement and its attachments.
INTERNET SERVICES: Should Customer choose to order Internet Service under an
MCI WorldCom Internet Services Agreement ("Internet Agreement") that provides
that charges for these Internet services will contribute toward the AVC or MVC
of this Agreement, then MCI WorldCom shall allow such contribution subsequent
to Customer's execution of the Internet Agreement. In addition, Customer shall
be eligible to receive a discount on the charges for Internet Services as set
forth in the Internet Agreement. Internet Service monthly recurring and usage
charges, after the application of discounts, shall contribute to the AVC or MVC
if permitted in the Internet Agreement.
PAGING: Should Customer choose to order Voice Paging Service under an MCI
WorldCom Paging Agreement ("Paging Agreement") that provides that charges for
paging services will contribute towards the AVC or MVC of this Agreement, then
MCI WorldCom shall allow such contribution subsequent to Customer's execution
of the Paging Agreement. In addition, Customer shall be eligible to receive a
discount on the charges for paging services as set forth in the Paging
Agreement.
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Voice Paging Service monthly recurring and usage charges, after the application
of discounts, shall contribute to the AVC or MVC if permitted in the Paging
Agreement.
MCI WORLDCOM LOCAL SERVICE: Where MCI WorldCom has received applicable
regulatory approval and filed the necessary Tariff(s), Customer will be
eligible to receive a discount based upon the AVC or MVC and Term indicated in
Schedule A on its eligible monthly charges for MCI WorldCom facilities-based
local exchange service. Local exchange service is provided by an MCI WorldCom
affiliate and is subject to the terms and conditions of the On-Net Voice Term
Plan program set forth in the applicable state Tariffs and price lists.
AVC UNDERUTILIZATION AND EARLY TERMINATION CHARGES: Underutilization Charges:
For Customers with an AVC as set forth in Schedule A, if at the end of any
Annual Period (as hereinafter defined), Customer's Qualifying Volume (as defined
in the Tariff) during such Annual Period fails to meet or exceed the AVC,
Customer shall pay, in addition to all other charges under this Agreement, the
difference between the AVC and Customer's Qualifying Volume during such Annual
Period. Any Underutilization Charges will be waived for the first three full
billing months of this Agreement. For purposes of this Agreement, "Annual
Period" means the consecutive twelve (12) month period commencing on the
Agreement Start Date hereof and each consecutive twelve (12) month period
thereafter during the Term or any renewal Term hereof. Early Termination
Charges: If Customer terminates On-Net Voice service prior to the expiration of
the Term, Customer will be required to pay, in addition to all accrued but
unpaid charges through the date of such termination, the difference between
Customer's actual Qualifying Volume and the AVC for the year of termination. For
each subsequent year of the Term, Customer shall be required to pay 50% of the
AVC.
MVC UNDERUTILIZATION AND EARLY TERMINATION CHARGES: Underutilization Charges:
For Customers with an MVC as set forth in Schedule A, if at the end of any
Monthly Period (as hereinafter defined), Customers's Qualifying Volume (as
defined in the Tariff) during such Monthly Period fails to meet or exceed the
MVC, Customer shall pay, in addition to all other charges under this Agreement,
the difference between the MVC and Customer's Qualifying Volume during such
Monthly Period. Any Underutilization Charges will be waived for the first three
full billing months of this Agreement. For purposes of this Agreement, "Monthly
Period" means the period reflected on each monthly invoice. Early Termination
Charges: If Customer terminates On-Net Voice service prior to the expiration of
the Term, Customer will be required to pay, in addition to all accrued but
unpaid charges through the date of such termination, the difference between
Customer's actual Qualifying Volume and the MVC for the remaining months of the
year of termination. For each subsequent year of the Term, Customer shall be
required to pay 50% of the MVC for each remaining month in the term.
CONVERSION FROM EXISTING MCI WORLDCOM TERM AGREEMENTS: If Customer meets the
conditions stated under "Termination without Liability" in the Tariff,
enrollment in this Agreement will cause an existing MCI, WorldCom Technologies,
Inc. or MCI WorldCom term plan agreement to terminate automatically without
incurring Early Termination Charges. Termination and underutilization liability
charges may apply if Customer is ineligible for conversion from existing MCI,
WorldCom Technologies, Inc. or MCI WorldCom term plans without liability and/or
all services are not converted to On-Net Voice.
GOVERNING LAW: This Agreement, and all causes of action arising out of this
Agreement, will be subject to the Communications Act of 1934, as amended (the
"Act"), or, if any part of this Agreement is not governed by the Act, by the
domestic law of the State of New York without regard to its choice of law
principles.
ASSIGNMENT: Neither this Agreement, nor any rights or obligations of Customer
in this Agreement, shall be transferable or assignable by Customer without MCI
WorldCom's prior written consent and any attempted transfer or assignment
hereof by Customer not in accordance herewith shall be null and void.
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MCI WORLDCOM ON-NET SERVICE AGREEMENT
SCHEDULE A
A. Customer agrees to an On-Net Voice term plan with a FIVE (5) year commitment
("Term") and TWELVE MILLION DOLLARS ($12,000,000) Annual Volume Commitment
("AVC").
B. Term; Contract Year. The "Term" will begin on MCI WorldCom's execution of
this Agreement ("Contract Date") and end SIXTY (60) months following the
Effective Date. The "Ramp Period" shall commence on the Contract Date and
continue for a period of TWENTY-FOUR (24) months following the Effective Date.
Each consecutive twelve (12) Monthly Period of the Term commencing on the
expiration of the Ramp Period and on each anniversary of said expiration will
be a "Contract Year." Commencing with the Effective Date and at all times during
the Ramp Period thereafter, Customer will receive the rates, discounts, charges
and credits set forth herein and will not be subject to any minimum usage
requirements.
(1) Ramp Period Minimum. Customer's usage charges must equal or exceed
SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($7,500,000)("Ramp Period
Minimum") by the 24th month of the Ramp Period.
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ADDITIONAL ATTACHMENTS: This Agreement incorporates the following Attachment(s):
Attachment A - T3 Internet Service
Attachment B - OC3 Internet Service
Attachment C - Business Downturn
Attachment D - Competitive Match
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ACCEPTANCE DEADLINE: This Agreement shall be of no force and effect and the
offer contained herein shall be deemed withdrawn unless this Agreement is
executed by Customer and delivered to MCI WorldCom on or before APRIL 21, 2000.
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C. During the Term, Customer will receive an additional TEN PERCENT (10%)
Branch Authorized Discount (BAD) on all domestic and international long
distance usage charges.
D. Interstate Outbound and Inbound Service. During the Term, Customer will
receive the standard term and volume discounts which will be applied to the
standard base rate, before the application of applicable Tariffed discounts,
including BAD, for On-Net Service domestic intrastate calls (excluding calling
card).
E. Intrastate Outbound and Inbound Service. During the Term, Customer will
receive the standard term and volume discounts which will be applied to the
standard base rate, before the application of applicable Tariffed discounts,
including BAD, for On-Net Service domestic intrastate calls (excluding calling
card).
Notwithstanding any references to "Effective Discount" as set forth below, for
calling within the states listed, Customer will pay the applicable Tariffed
and effective state rates and charges for On-Net voice Service usage. Customer
nevertheless will receive a monthly recurring credit against interstate and
international charges in an amount equal to a calculated percent of the usage
charges resulting from application of the Tariffed and effective state rates
for On-Net voice Service usage, excluding Calling Card, Operator Services and
Directory Assistance. (All "Effective Discount" calculations that yield the
amount of said interstate credit are not to be construed or interpreted as a
discount off Tariffed and effective state rates or charges; rather, they are
being made solely to ascertain the credit amount to be applied against
interstate and international charges.)
F. International Outbound Service. During the Term, Customer will receive the
standard term and volume discounts, which will be applied to the standard base
rate before the application of applicable Tariffed discounts, including BAD,
for On-Net Service international outbound calls (excluding calling card).
G. International Toll Free Service. During the Term, Customer will receive the
standard term and volume discounts which will be applied to the standard base
rate, before the application of applicable Tariffed discounts, including BAD,
for On-Net Service international toll free service (ITFS) calls (excluding
calling card).
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H. Calling Card Service. During the Term, Customer will receive the standard
term and volume discounts which will be applied to the standard base rate,
before the application of applicable Tariffed discounts, including BAD, for
On-Net Service domestic calling card calls.
I. Private Line Service. During the Term, Customer will receive the standard
term and volume discounts which will be applied to the standard base rate,
before the application of applicable Tariffed discounts, including BAD, for
private line service.
DATA
A. Frame Relay Service. During the Term, Customer will receive the standard
term and volume discounts which will be applied to the standard base rate for
On-Net Service frame relay. Discounts will be applied to Customer's Charges for
Service during the Customer Commitment Period. Discounts will apply to the
Network Port base rates and Committed Information Rate (CIR) base rates, only.
ENTIRE AGREEMENT: This Agreement, including the Tariff and the Attachments
referenced above, is the complete agreement of the parties and supersedes any
prior agreements on representations, whether oral or written, with respect
thereto. Except for Tariff modifications initiated by MCI WorldCom, no
amendment to this Agreement will be valid unless each such change is accepted in
writing by an authorized representative of both parties.
Any capitalized terms not expressly defined in an Attachment to this Agreement
shall have the meaning given to such term in this Agreement.
IN WITNESS WHEREOF, the parties have accepted and signed this Agreement and the
individuals signing below warrant and represent that they have the full legal
and regulatory authority to enter into this Agreement for and on behalf of the
respective parties.
MCI WORLDCOM COMMUNICATIONS, INC. APERIAN, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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(Authorized Representative) (Authorized Representative)
▇▇▇▇▇ ▇▇▇▇▇▇, V.P. Marketing ▇▇▇▇ ▇▇▇▇▇▇▇
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(Title) (Print Name)
4-19-00 4-14-00
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(Effective Date) (Date)