CARRIER SERVICES AGREEMENT
This
CARRIER SERVICES AGREEMENT is made and entered into this day of
October, 2004 (the "Effective Date"), by and between XO
Communications,
Inc., a
Delaware corporation, on behalf of its operating Affiliates (as defined below)
(such Affiliates hereinafter collectively referred to as "XO"), whose
principal
place of business is located at 1 1 1 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
and United
American Corporation, a
Nevada
corporation (hereinafter referred
to as "Customer"), whose place of business is located at ▇▇▇▇ ▇.
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Customer and XO are collectively referred
to herein as the "Parties."
Preliminary
Statement
Customer
and XO hereby enter into this Agreement to enable Customer to obtain
telecommunications services from XO pursuant to Section 211(a) of the
Communications
Act of 1934, as amended. The Services will be offered in each area
to
the Customer by an entity ("Authorized Entity"), which is an Affiliate
of XO.
The
terms and conditions of this Agreement are, and shall be, applicable
to
the
Services provided to the Customer by each Authorized Entity.
NOW, THEREFORE,
in
consideration of the mutual promises and covenants
herein
contained, the Parties hereby mutually agree as follows:
ARTICLE
1-
DEFINITIONS/SERVICE OFFERINGS
1.1
The
capitalized terms used in this Agreement shall have their normal or common
meaning, the meaning given them in the Tariffs, or the meaning as defined
in the text hereof, except that the following terms shall have the
following
meanings
for the purpose of this Agreement:
(a) Acceptance
or Accepted.
Customer
will be deemed to have given its "Acceptance" or to have "Accepted" a Circuit
after the applicable test and acceptance
procedures have been conducted which are set forth in the applicable Service
Exhibit applicable to the Circuit ordered. Billing for a Circuit will
begin on
the
requested Start of Service Date unless the Circuit has not met all
applicable
standards or the requested Start of Service Date has been changed by XO.
If a
Circuit
has failed the testing process, billing will begin after the Circuit has
passed applicable
Circuit standards. If Customer fails to permit XO to begin testing on
a Circuit
within five (5) days of the requested Start of Service Date, billing will
still begin
on
the requested Start of Service Date. if XO has tested a Circuit
pursuant
to the
procedures set forth in the applicable Exhibit, such Circuit meets the
requirements
set forth therein and Customer refuses to accept the Circuit,
billing
for that
Circuit will still begin on the requested Start of Service Date for that
Circuit.
This definition is applicable only to certain Services as further
provided
in the
applicable Service Exhibit.
(b) Access
Service Request (ASR). "Access
Service Request" or "ASR" shall mean the capacity order for certain Services
which delineates the type
of
Service, quantity of Circuits, location served, Point of Termination, protocols,
Circuit
term, requested Start of Service Date and other information necessary
for
XO to
provide Service to the Customer.
(c) Affiliate.
"Affiliate" shall mean, with respect to either Party, any other
party which controls, is controlled by, or is under common control with
such Party.
For purposes hereof, the term "control" means the possession, directly
or indirectly,
of the power to direct or cause the direction of the management and policies
of any such party whether through the ownership of voting securities,
by
contract, or otherwise.
(d) Agreement.
"Agreement" shall mean this Carrier Services Agreement, including any schedules,
appendices, Exhibits, Tariffs, and documents attached hereto and made a part
hereof, or incorporated herein by reference as well as any written amendments
to
this Agreement which have been signed by the authorized representatives of
the
Parties,.
(e) Circuit.
"Circuit" shall mean an individual telecommunications facility included as
part
of a Service.
(f) Emergency
Maintenance.
"Emergency Maintenance" shall mean maintenance
which, if not accomplished promptly by XO, could result in a serious
degradation or loss of Service to the Customer or the End User or damage
to XO's
Network or its customers.
(g) End
User.
"End
User" shall mean a user to whom Customer will provide
telecommunications services utilizing, in part, the Services provided
by
XO to
Customer under this Agreement.
(h) Exhibit.
"Exhibit" shall mean an attachment to this Agreement for a particular
Service, including any schedules or attachments thereto, which
contains
the
product description, pricing, and terms and conditions associated with that
specific Service.
(i) Network.
"Network" shall mean the telecommunications network of one of the Parties,
as
the context of the provision requires or as contemplated under this
Agreement
(j) Off
Net
Services.
"Off-Net
Services" are those where one or both locations
to be connected are not served by XO's Network and therefore a
portion
of the
Services is provided by another service provider. Where XO is able to
provide
Off-Net Services, the terms, conditions and pricing of such Service
will
be
provided on an individual case basis ("ICB") subject to the terms and conditions
of the underlying service provider. XO shall invoice Customer for Off-Net
Services rendered and shall manage ordering pursuant to the
applicable Exhibit,
but XO shall not be liable for any failures on the part of the
underlying
service
provider.
(k) On-Net
Services.
"On-Net
Services" shall mean those Services which
connect two (2) locations served by XO's Network, On-Net Services
are
provided
entirely by XO.
(1)
Planned
Service
Outage.
"Planned
Service Outage" shall mean any Service Outage caused by scheduled maintenance
or
planned enhancements or upgrades to the XO Network as described in the
applicable Service exhibits.
(m) Point
of Presence (POP).
"Point
of Presence" or "POP" shall mean a specific location within a Local Access
Transport Area (LATA) where service terminates and/or originates.
(n) Point
of Termination. "Point
of
Termination" shall mean the point at which XO's responsibility to provide
equipment and service ends and where Customer's or Customer's End User's
responsibilities begin, identified as the interface
between XO and Customer at Customer's Point of Presence, the local
exchange
carrier's central office, a long-distance carrier's Point of Presence or
End-User sites identified on the ASR.
(o) Premises.
"Premises" shall mean the address to which Service is provided
or delivered, identified as a Point of Termination or Service Location
on
the
Service Order.
(p) Service.
"Service" shall mean XO-provided telecommunications service
or collocation license, as further described in the applicable Exhibit and
as
specifically identified on the Service Order.
(q) Service
Order.
"Service
Order" shall mean an ASR or other applicable
service ordering form or Collocation Schedule (as defined in the
Telco
Collocation Exhibit attached hereto if applicable) provided by XO and entered
into by the Parties pursuant to this Agreement.
(r) Service
Outage.
"Service
Outage" shall mean a disruption or degradation of On-Net Service as set forth
in
the applicable Exhibit.
(s) Start
of Service Date.
The
"Start of Service Date" for a Service shall be
the
later of (i) the date requested by Customer for in-service as indicated on
the Service
Order, (ii) the date XO notifies Customer that the Service is installed
or
XO
CONFIDENTIAL
connected,
successfully tested and available for Customer use, or (iii) the
date
after
Circuit testing and Acceptance has been completed per this Agreement where
applicable, regardless of whether or not Customer uses the Service. Notwithstanding
the above, the Start of Service Date shall never be later than the
date
Customer begins to use the Service.
(t)
Tariffs.
"Tariffs" shall refer to XO's applicable tariffs for intrastate and
local
services. This Agreement incorporates by reference the terms of each
such
Tariff to the extent Customer uses tariffed Services provided by XO XO may
modify its Tariffs from time to time in accordance with law and thereby affect
tariffed Services furnished to Customer, except that the terms and conditions
of
this Agreement shall supplement, or to the extent inconsistent, supersede
Tariff
terms and conditions. If any of XO's applicable Tariffs are cancelled during
the
term of this Agreement, such cancelled Tariff(s) will be deemed to be
incorporated by reference into this Agreement on
the
effective date of cancellation, as supplemented by any
non-inconsistent product
descriptions, definitions, prices and other terms and conditions
contained
in the
XO Service Description and Price Guide ("Guide"). The Guide will be maintained
on an XO web-site accessible by Customer, such as ▇▇▇.▇▇▇▇▇.▇▇.▇▇▇, and
may
be modified by XO from time to time and thereby
affect
the previously tariffed Service furnished to Customer.
1.2
Services
and Service Exhibits.
XO shall
provide to Customer the Services Customer has specifically contracted for
on a
Service Order pursuant to the applicable Service Exhibit(s), attached hereto
and
made a part hereof, The Parties may add other Services to this Agreement
by
amending it to add additional Service Exhibit(s) and entering into additional
Service Orders pursuant to such additional Exhibit(s). However, Customer
may
contract for international, interstate, intrastate and local voice services
("Voice Services") on a Service Order in accordance with XO's standard terms
and
pricing, including
those set forth in any applicable Tariffs, without the incorporation
of
a Voice
Services Exhibit hereunder.
1.3 Resale
of Services.
(a) Customer
hereby acknowledges and agrees that it is the customer of record for all
Services purchased from XO. In connection with its resale of the Services,
Customer understands and agrees that it is solely responsible for all order
provisioning, billing, collection, billing adjustments/credits, tax collection
and payment, customer service, service installation, operation and termination,
dispute resolution, other service-related requirements and creditworthiness
of
its End Users, XO shall have no liability to Customer's End Users under this
Agreement. Customer is responsible for payment for all charges for Service
furnished to Customer and/or its End Users by XO pursuant to the payment
terms
set forth in the Agreement. This responsibility is not changed by virtue
of any
(i) use, misuse, fraud, or abuse by Customer, its employees, its End Users
or
other members of the public of the Services provided
to Customer or Customer-provided systems, equipment, facilities, or
services
interconnected to such Services, or (ii) inability to collect payments or
charges from Customer's End Users, Affiliates, agents, brokers or
re-sellers.
Further, XO will not issue credits for fraudulent calls passed to XO
by
Customer.
(b) Customer
assumes (i) the responsibility for enforcing all applicable
regulations and the provisions of this Agreement with respect to its
End
Users, and (ii) any liability arising from violations thereof. In the event
XO
terminates the provisioning of any resold services to Customer for any reason,
including without limitation disconnection of Customer for failure to make
payment as required herein, Customer shall be solely responsible for providing
any and all necessary notice to its End Users of the termination.
1.4
Access
to Premises. _Customer
agrees to cooperate with XO to accomplish Service activation by providing
reasonable access to Customer's and its End Users' Premises and facilitating
testing and Service delivery requirements, and Customer agrees XO shall have
reasonable access to such Premises to repair, maintain or retrieve XO equipment.
If the requisite access
rights
to
all applicable buildings are not reserved to Customer, Customer
shall
secure
any building owner or manager approval prior to such visit and shall
ensure
that personnel representing XO have ready access to all portions of
the
grounds,
building and adjunct areas and facilities needed by XO to perform the
installation, removal, inspection and scheduled or emergency
maintenance
of XO's
equipment. If applicable, Customer will be responsible for ensuring that
its
vendors and End Users cooperate with XO or its vendors in connection
with the
performance by XO of its obligations with respect to the Services, including,
without limitation, the installation, modification, testing, maintenance
and
operation of XO's equipment. XO shall not be liable for any damages whatsoever
resulting from delays in meeting Service delivery dates requested or specified
by Customer, or inability to provide Services.
ARTICLE
2 - BILLING AND PAYMENT
2.1
Except as set forth in Section 22, Customer shall pay the recurring and
non-recurring
rates and charges and the usage charges set forth herein and/or in
the Service
Orders beginning on the Start of Service Date without deduction,
setoff or
delay
for any reason. Customer agrees to pay for the Services, by check
sent
to the
address provided for herein or on the invoice or by wire transfer sent in
accordance
with applicable instructions provided by XO, within thirty (30) days
from the
date of the invoice ("Payment Period"). Restrictive endorsements or statements
on checks accepted by XO will not be binding upon XO. Monthly recurring charges
are billed in advance while usage and related charges are billed
in
arrears. The Parties shall provide one another with reasonably
requested information
for ▇▇▇▇ validation including, but not limited to, the number of
Circuits
and
charges for each Service.
2.2
Except for amounts in dispute, interest not to exceed 1.5% monthly may
be charged
on the unpaid balance not paid within the Payment Period. If the
interest rate
set
out above exceeds the maximum rate allowable by law, then the
interest chargeable
shall be equal to the maximum rate allowed by law. Customer agrees
to
reimburse XO for any costs incurred as a result of any collection activity,
including without limitation reasonable attorneys' fees and court costs,
unless
otherwise prohibited by law. Customer authorizes XO to request information
from
a reporting agency to enable XO to assess Customer's credit history. Customer
agrees that such action is not the extension of "credit" to Customer and
further
agrees that XO, in its sole discretion, may alter any billing arrangements
as a
result of such report or upon determination of a change in Customer's financial
circumstances. Customer agrees that as a condition of initial or continued
Service, it must provide financial statements to XO's Credit Department within
ten (10) days of receiving a request for such statements from XO or Service,
if
already installed, may be suspended or terminated.
At any time during and upon two (2) business days written notice,
XO may
require a deposit or other form of security acceptable to XO if it reasonably
deems itself insecure with respect to Customer's ability to pay (eg. if Customer
has failed to pay any invoice when due, or if there is a material change
in
circumstances of Customer's
actual
or anticipated usage hereunder or Customer's financial condition). Failure
by
Customer to comply with
such
requirement by XO may result in Service suspension or termination.
2.3
If
Customer disputes any invoice, Customer shall notify XO's Credit Department
in writing, providing the billing identification, Circuit number,
any trouble
ticket number and an explanation for the dispute, and shall
nevertheless pay
the
affected invoice within the Payment Period, provided that Customer
may withhold
payment of the amount in good faith dispute up to twenty percent
(20%)
of the
invoiced charges. XO will investigate the dispute and in its discretion
exercised
in good faith, may require additional supporting documentation or
reject
Customer's claim as inadequate. No charges may be disputed more than sixty
(60)
days
after the date such charges are invoiced, and if not disputed within
that
time,
all such charges shall be deemed valid and undisputed by Customer. Payment
shall not prejudice Customer's right to dispute charges, so long as
they are
disputed in good faith in the manner and within the timeframes specified
in this
Section, The Parties will cooperate in good faith to resolve any such
disputes within
a
thirty (30) day period after the dispute is submitted to XO. If the
dispute
XO
CONFIDENTIAL
2
is
not
resolved during this period, then either Party may seek resolution of the
dispute in accordance with Article 13.
2.4
If a
disputed amount is determined by XO to be a legitimate charge,
interest not
to
exceed 1.5% monthly may be charged on the balance not paid within
the
original
Payment Period and Customer will make payment of the amount due within five
(5)
business days of such determination. If the interest rate set out above
exceeds the maximum rate allowable by law, then the interest
chargeable
shall be
equal to the maximum rate allowed by law.
2.5
If
Customer does not make payment of all invoiced charges in accordance
with
the
provisions herein within the Payment Period, XO may, at its option
and without
notice (i) refuse to accept additional Service Orders; (ii) suspend any
and
all
Service provided by XO under this Agreement and/or any other service
agreement
until Customer has paid all past due amounts (including interest);
(iii) offset
such unpaid balances from any amounts that XO owes to Customer under any
other
agreement between the parties; and/or (iv) require weekly payments
or
a surety
of up to two (2) times Customer's aggregate monthly invoicing and failure
by
Customer to comply with such requirement by XO may result in Service suspension.
Following suspension of Services for non-payment, XO is not
required to reinstate Services to Customer until: (I) Customer has paid in
full all
charges then due, including any late fees, interest charges, collection costs
and
any cost
of reinstating Services; and (2) Customer provides to XO satisfactory
assurance
as requested by XO (such as a deposit) of Customer's ability to pay
for Services
for the remainder of the applicable Service term(s). If Customer fails
to
timely
cure the non-payment within the timeframe specified by XO, Customer will
be
deemed to have terminated the affected Services as of the effective date
of Service
suspension. Termination hereunder for non-payment shall be treated
as termination
for convenience by Customer subject to early termination charges as set
out
in the applicable Exhibit. If Customer has not paid an invoice within
the
Payment
Period and XO owes any amounts to Customer, XO may offset respective payments
by
first applying such amounts owed by XO to the full balance due from Customer
and
the remaining amounts owed by XO, if any, will
be
remitted in the normal course of business,
2.6
When
Service is initiated on a day other than the fast day of the month or
terminates
on a day other than the last day of the month, any monthly recurring
charges
for that month shall be prorated accordingly.
2.7
Notwithstanding anything contained herein to the contrary, if XO is required
to
construct and/or acquire telecommunications facilities in order to provide
Service to Customer, Customer acknowledges and agrees that XO therefore incurs
significant costs and expenses in provisioning such Service to Customer,
including but not limited to costs associated with constructing and/or acquiring
the telecommunications facilities necessary for delivery of XO Services to
Customer. In addition to any other rights and remedies XO may have at law,
in
equity or as provided herein, Customer agrees that if Customer cancels this
Agreement or any individual Service Order after signature but prior to the
Start
Of Service Date, or if Customer terminates this Agreement or any individual
Service Order prior to expiration of the committed Service term, Customer
shall
reimburse XO for all costs and expenses XO incurred in constructing and/or
acquiring such telecommunications facilities.
2.8
Monthly
Minimum Commitment.
During
each month of the Agreement, Customer shall purchase Services from XO in
an
amount that shall equal or exceed
Dollars
($ )
per
month (the "Monthly Minimum"). If, at the end of each such month, Customer's
purchase of Services are less than the Monthly Minimum, then Customer shall
pay:
(I) all accrued but unpaid Service charges and other charges incurred by
Customer; and (2) a shortfall charge (which Customer hereby agrees is
reasonable) equal to the difference between the Monthly Minimum and Customer's
actual purchase of XO's Services (including any applicable cancellation
charges), excluding taxes, tax related surcharges, and other surcharges during
that month.
ARTICLE
3
- TAXES
3.1
The
rates, pricing and charges for Services set forth herein or in any Service
Order
do not include applicable taxes and surcharges. Customer shall be responsible
for and shall pay any taxes, arising in any jurisdiction, including without
limitation, sales, use, excise, gross receipts, value added, access, bypass,
franchise, telecommunications, consumption, or other taxes, fees, duties,
charges or surcharges; however designated, imposed on or based on the provision,
sale or use of the Services, including taxes or surcharges imposed directly
on
XO. If Customer believes it or the Services is exempt from any tax, Customer
will provide XO with a properly executed exemption certificate evidencing
such
claimed exemption. In no case shall Customer be responsible for any income
taxes
levied upon XO's (or any underlying carrier's) net income. Customer agrees
that
its obligation to pay taxes and surcharges under this Section shall survive
the
expiration or early termination of the Agreement.
ARTICLE
4 - TERM AND RENEWAL OPTIONS
4.1
The
term of this Agreement shall commence on the Effective Date of this Agreement,
and shall terminate three (3) years thereafter. Thereafter, this Agreement
shall be automatically renewed in successive one-year periods unless terminated
by written notice by one of the Parties at least sixty (60) days prior
to the
end
of the initial term or any one-year renewal period (collectively,
"Term"); provided,
however, that if the period of time set out in the applicable Exhibit
or
Service
Order for a particular Service(s) extends beyond the effective date of
termination of this Agreement, such Services(s) shall remain in effect for
such
agreed upon time period, subject to all of the terms and conditions of this
Agreement
as if it were still in effect with respect to such Service(s). If
Customer
wishes
to terminate a Service or Circuit(s) for any reason, or not to renew such
Service or Circuit(s), Customer shall provide XO with written notice
("Termination Notice") addressed to XO at such location, as XO shall specify
from time to time. Such Termination Notice must specify all necessary
identifying details about the Service or Circuit being terminated (e.g.,
Circuit
Identification
number, the A and Z locations of such Circuit) and the requested
effective date of such termination (which date must not be less than thirty
(30)
days
from
the date notice is received by XO). Termination of
Service/Circuit(s) by any
form
of
communications or means other than as provided above shall not be
effective and Customer shall remain obligated to XO for all
Services/Circuit(s)
rendered. For the avoidance of doubt, Customer may be liable for early
termination
charges upon termination of Service/Circuit(s) as further provided
in
the
applicable Service Exhibit attached hereto.
ARTICLE
5-INSURANCE
5.1
Except as may be otherwise provided in an Exhibit hereto, Customer will
maintain
throughout the term of this Agreement the following insurance
coverage with
a
licensed insurance company rated A- or better by A.M. Best: (a)
Worker's
Compensation Insurance to comply with the state laws in which the work is
performed; (b) Commercial General Liability in an amount not less than
$1,000,000
per occurrence / $2,000,000 general aggregate; and (c) Automobile Liability,
including Non-Owned and Hired Auto Liability, in an amount not less
than
$1,000,000 Combined Single Limit, "XO Communications, Inc." shall be added
as an
additional insured on Customer's policies and such shall waive its rights
of
subrogation against XO. All insurance carried by Customer shall be primary
and
non-contributory with any insurance carried by XO.
ARTICLE
6 - WARRANTIES AND NETWORK STANDARDS
6.1
Each
Party represents and warrants to the other Party that it is an entity,
duly organized,
validly existing and in good standing under the laws of the place of
its
origin,
with all requisite power and authority to enter into and perform its obligations
under this Agreement in accordance with its terms.
6.2
XO
represents and warrants to Customer that all On-Net Service rendered
by
it
hereunder shall be designed, produced, installed, furnished and in all
respects
XO
CONFIDENTIAL
3
provided
and maintained in conformance and compliance with applicable
federal,
state
and local laws, administrative and regulatory requirements and any other
authorities having jurisdiction over the subject matter of this
Agreement.
6.3
Customer represents and warrants that (i) all services rendered by it to
its End
Users shall be designed, produced, installed, furnished and in all respects
provided and maintained in conformance and compliance with applicable federal,
state and local laws, administrative and regulatory requirements and any
other
authorities having jurisdiction over the subject matter of the Customer-provided
services, and (ii) it has all licenses, approvals, registrations and
certifications (collectively, "Approvals") which may be required by the
applicable regulatory authorities for its operation and the provision of
any
services to its End Users and it shall be solely responsible for applying
for,
obtaining and maintaining all such Approvals.
6.4
The
warranties and remedies set forth in this Agreement constitute the only
warranties and exclusive remedies with respect to this Agreement. SUCH
WARRANTIES
ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN
OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY
OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE
AND NON-INFRINGEMENT.
ARTICLE
7
.-
DEFAULT
7.1
A
Party shall be deemed in "Default" of this Agreement upon the occurrence
of any
one or more of the following events:
(i) a
Party
violates any applicable laws, statutes, ordinances, codes or other legal
requirements with respect to the Services and such violation(s) are not remedied
within thirty (30) days after written notice thereof; or
(ii) a
Party
fails to perform any of its material obligations under this Agreement and
such
nonperformance is not remedied within thirty (30) days
after notice thereof or such other cure period as may be specified in
the applicable
Exhibit, except for payment defaults, for which no cure periods
in
addition to those described in Section 2.5 herein shall be available;
provided,
however, if Customer is entitled to outage credits pursuant to the applicable
Service Exhibit attached hereto or other remedies set out in this
Agreement for such nonperformance by XO, then such outage credits or other
remedies shall be Customer's exclusive remedy and such nonperformance
shall not be construed to be a Default under this Section
7.1.
7.2
In
addition to all remedies available at law or in equity, the non-defaulting
Party
hereunder may terminate this Agreement, including, for the avoidance of
doubt,
its Exhibits, and/or related Service Orders, in whole or in part, upon
the
occurrence of a Default.
ARTICLE
8 - CONFIDENTIAL INFORMATION
8.1
Each
Party shall preserve the other Party's confidential information provided
to it
hereunder with the same degree of care in protecting its own confidential
or
proprietary information, but in no event less than a reasonable standard
of care
shall be used and shall execute and comply with the terms and conditions
of the General Nondisclosure Agreement ("NDA") executed by both
Parties
as of the day of October, 2004. Notwithstanding any provision therein, the
Parties hereby agree that such NDA shall be coterminous with this
Agreement.
ARTICLE
9 - INDEMNIFICATION
9.1
Customer and/or End User shall indemnify, defend and hold harmless XO and
its
Affiliates and all of their employees, directors, officers, and agents from
and
against all claims, demands, actions, causes of actions, damages,
liabilities,
losses,
and expenses (including reasonable attorney's fees) incurred as a result
of
third
party claims:
(i) for
libel, slander, infringement of copyright or unauthorized use of trademark,
trade name, service ▇▇▇▇ or any other intellectual property infringement
arising
out of or related to use of the Service;
(ii) for
patent infringement arising from combining or connection of Customer
or third party services, equipment, and/or facilities to use XO's
Network
or Service;
(iii) for
damage to property and/or personal injury (including death) arising
out of the gross negligence or willful act or omission of Customer
and/or
End User;
(iv) arising
out of or in connection with Customer's resale or sharing of the Services;
and
(v) related
to any Customer representations regarding Customer's traffic and
Customer's use of Services including without limitation, as set forth
in
Article
11.
9.2
XO
shall indemnify defend and hold harmless the Customer and its Affiliates
and their employees, directors, officers, and agents from and against
all
claims,
demands, actions, causes of actions, damages, liabilities, losses, and
expenses
(including reasonable attorney's fees) incurred as a result of third
party
claims:
(i) for
patent or copyright infringement relating to XO's equipment or XO's software
used by XO to provide the Services hereunder; and
(ii) for
damages to property and/or personal injury (including death) arising out
of the
gross negligence or willful act or omission of XO.
9.3
If,
as the result of a claim or threatened claim related to an infringement of
a
third
party's intellectual property rights, (1) the Services or any essential
component thereof are held by a court of competent jurisdiction, or in XO's
reasonable
judgment may be held, to infringe, or (2) either Party receives a
valid
court
order enjoining that Party from using the Services or any essential component
thereof or, in XO's reasonable judgment such order may be received, XO
shall
in its reasonable judgment, and at its expense, (a) replace or modify
the
affected
Service or essential component to be non-infringing; (b) obtain for Customer
a license to continue using the affected Service or essential
component;
or (c)
if XO cannot reasonably obtain the remedies in (a) or (b), terminate the
affected Service without penalty to Customer. This Section states XO's entire
responsibility and liability and Customer's sole and exclusive remedy for
any
claim
of
infringement. Notwithstanding the foregoing, XO shall have no
liability for
any
claim of infringement based on (x) the use of the Services in a manner
not
contemplated or otherwise not in accordance with this Agreement and
documentation related to the Services; (y) any combination of the Service
or
essential
component thereof with other elements or the modification of a
Service by
anyone
other than XO where, but for such combination or modification, no
claim of
infringement would exist or (z) the use of the Services . Any and all claims
for
indemnification shall be conditioned upon (i) prompt written notification
by the indemnified Party to the indemnifying Party; (ii) assumption
of sole
control of the defense of such claim and all related settlement negotiations
by the
indemnifying Party; and (iii) provision by the indemnified Party of the
prompt assistance,
cooperation, information and authority necessary for the
indemnifying
Party to
perform its obligations under this Section.
ARTICLE
10 - LIMITATION OF LIABILITY
10.1
Neither Party shall be liable to the other Party for any indirect,
consequential, special, incidental, reliance, or punitive damages of any
kind or
nature
whatsoever including, without limitation, any lost profits, lost
revenues, lost
savings, or any other business loss including goodwill, loss of use of
property,
XO
CONFIDENTIAL
4
loss
of
data, cost of substitute performance equipment or services, downtime
costs
and
claims of customer for damages, or harm to business, regardless of the
foreseeability
thereof and regardless of whether damages are caused by the willful misconduct,
negligent act or omission, or wrongful act arising from or related
to this
Agreement. For purposes of this Agreement, a Party's out-of-pocket costs
for
damages
of the kinds specified in the preceding sentence which are recovered
from
such
Party by a third party shall be deemed to be indirect damages to
such Party
and
each Party hereby releases the other Party, its subsidiaries and
affiliates, and
their
respective officers, directors, managers, employees, and agents,
from damages
from such claim(s), except to the extent such damages are part of
claims for
which
indemnification is due under Sections 9.1 and 9.2 herein. Customer's sole
remedy for the failure of non-perfonnance or XO and/or the Service shall
be to
receive credits as set forth in this Agreement and the Exhibits
hereto. THE
ENTIRE
LIABILITY OF XO AND CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY
RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES
OR
THE TOTAL AMOUNT PAID
BY CUSTOMER TO XO DURING THE PREVIOUS THREE (3) MONTHS
FOR THE SERVICE(S). The foregoing limitations apply to all
causes of action and claims of
any
kind arising out of
or
related to this Agreement
including any Exhibit and any Service Order, including, without limitation,
breach of
contract,
breach of
warranty,
strict liability, negligence,
misrepresentation, or any other tort. Customer acknowledges
and
accepts the reasonableness of
the
disclaimers and limitations of
liability
set forth herein.
ARTICLE
11- REGULATIONS
11.1
The
rates set forth in this Agreement are subject to the imposition of
new
regulation, modification of existing regulation, and new interpretation or
enforcement of regulation by any federal, state, or local regulatory agency,
legislative
body, or court of competent jurisdiction, including the imposition
of
any
charges, surcharges, and/or taxes in reliance or as a result of the same
("Regulatory Activity"). XO reserves the right, at any time, (i) to pass
through
to Customer all, or a portion of, any charges, surcharges, or taxes directly
or
indirectly
related to such Regulatory Activity; or (ii) modify the rates and/or
other terms
and
conditions of this Agreement to reflect the impact of such
Regulatory
Activity.
11.2
Customer represents and wan-ants that all traffic being delivered by
Customer
or its End Users or agents to XO for local termination, and all
traffic that
XO
delivers to Customer or its End Users or agents that has originated in
the
same
local calling area
in
which
Customer's NPA-NXX is assigned and/or in which
such traffic is terminated to Customer or its End Users or agents, is
local
traffic
or is legally entitled to be treated as local traffic under all applicable
federal,
state and local laws, administrative and regulatory requirements and
any other
authorities having jurisdiction over such traffic. Customer understands
that
XO will
rely upon such representation to assign local telephone numbers to Customer
and/or route Customer's traffic for termination as local calling. Customer
represents and wan-ants that Customer has paid, or shall promptly
pay to
XO all
switched access charges associated with any of Customer's traffic that
is delivered
pursuant to this Agreement. Customer also represents and wan-ants
that
neither
it nor any of its end users or agents will remove or in any way alter Automatic
Number Identification ("ANI") or Calling Party Number ("CPN") information
associated with any traffic delivered pursuant to this Agreement. Customer
agrees to cooperate with XO to obtain or verify any necessary regulatory
certification regarding the nature of its traffic and/or use of
facilities.
11.3
Customer shall promptly pay to XO all access charges, reciprocal compensation,
and/or any other charges, surcharges and/or taxes billed to XO by a
third
party, or remitted by XO to a third party, that are associated with any of
Customer's traffic delivered or facilities utilized pursuant to this Agreement,
including but not limited to any retroactive charges, (collectively, "Additional
Charges")
and that are not already reflected in the rates charged by XO for
the Services
rendered pursuant to this Agreement. Although XO shall not have any
obligation to challenge any Additional Charges levied by a third party, if
XO
successfully
challenges imposition of any Additional Charges by a third party, it will
refund
to Customer any Additional Charges previously paid by Customer to XO that
were
subject to such successful challenge. In addition, XO shall have the right,
upon
five (5) days written notice to Customer, to revise its rates for Services
provided to Customer to reflect any Additional Charges. Within thirty (30)
days
of receipt of written notice of any such rate increase to reflect Additional
Charges, Customer, upon giving written notice to XO, may elect to transition
any
Services affected by such rate increase to another carrier over a period
of time
not to exceed sixty (60) days. Notwithstanding any other provision of this
Agreement, if, within the designated thirty (30) day period, Customer does
not
provide written notice to XO of its election to transition the affected Services
to another carrier, Customer shall be deemed to have waived its right to
such
election. Even if Customer elects to transition the affected Services to
another
carrier, Customer shall still be responsible for paying any and all Additional
Charges billed to or remitted by XO up to and including the final transition
date. The parties agree to cooperate on the scheduling of any such
transition.
1
I.4
Customer agrees that, if XO is subjected to a third party audit relating
to
Customer's traffic or use of facilities which is the subject of this Agreement,
Customer will cooperate in any such audit. Customer further agrees that it
will
protect, defend, indemnify and hold harmless XO, its subsidiaries, affiliates,
officers, directors and employees from any and all costs resulting from such
third party action.
ARTICLE
12 - FORCE MAJEURE
12.1
In
no event shall a Party have any claim or right against the other Party
for
any
failure of performance due to causes beyond its control, including but not
limited to: acts of God, fire, explosion, vandalism, cable or fiber cut,
adverse
weather
conditions, flood or other similar occurrences; any law, order
regulation, direction,
action or request of the government, including federal, state and
local
governments having or claiming jurisdiction over XO or of any department,
agency,
commission, bureau, corporation, or other instrumentality of any
federal,
state,
or local government, or of any civil or military authority; national
emergencies; unavailability of materials or rights-of-way; insurrections;
riots,
wars; terrorism; strikes, lock-outs, work stoppages, or other labor
difficulties, supplier failures, shortages, breaches or delays; or any other
cause or circumstance,
whether of a similar or dissimilar nature to the foregoing, beyond
the
reasonable control of the affected Party.
ARTICLE
13 - DISPUTE RESOLUTION
13.1
Except for (i) action seeking a temporary restraining order or injunction,
(ii)
a suit
to compel compliance with this dispute resolution process, (iii) disputes
relating to the lawfulness of rates, terms, conditions or practices concerning
Services
that are subject to the Communications Act of 1934, as amended, or
the
rules
and regulations of the FCC, a state public utility commission or other
administrative
agency, (iv) Customer non-compliance with publicity provisions,
or (v)
billing or payment disputes or collections matters all of which may be
litigated
(or brought before the applicable agency in the case of subsection (iii))
at the
election of XO, the Parties agree to use the dispute resolution procedures
set
forth in
this Section with respect to any controversy or claim arising out of or relating
to this Agreement or its breach.
13.2
Upon
ten (10) days written notice, either Party may submit disputes to binding
arbitration by a single arbitrator with a professional arbitration service
selected by the Parties. If the Parties do not otherwise agree on an arbitration
service, such services shall be provided pursuant to the American Arbitration
Association
("AAA") Commercial Arbitration Rules and Mediation Procedures. The
costs
of arbitration, including the fees and expenses of the arbitrator, shall
be
paid
equally by the Parties. Each Party shall bear the cost of preparing and
presenting its case. The Parties agree that Fairfax County, Virginia shall
be
the location for the arbitration hearing.
XO
CONFIDENTIAL
5
13.3
The
Parties agree that this Article 13 and the arbitrator's authority to grant
relief shall be subject to the Federal Arbitration Act, 9 ▇.▇▇. §§ 1-16,
et
seq.
("FAA"),
the provisions of this Agreement, and the AAA Code of Ethics for Arbitrators
in
Commercial Disputes. The Parties agree that the arbitrator shall have no
power
or authority to make any award that provides for punitive or exemplary
damages or damages otherwise limited or excluded in this Agreement. The
arbitrator's decision shall be final and binding. The award may be
confirmed and
enforced in any court of competent jurisdiction. All post-award
proceedings
shall be
governed by the FAA.
ARTICLE
14 - ASSIGNABILITY
14.1
Customer may not assign this Agreement without the prior written
consent
of XO,
which consent shall not be unreasonably withheld. Any request by Customer
for such consent from XO shall be directed to XO's Legal and Credit
Departments. Any such assignment without XO's prior written consent shall
be
void. Notwithstanding the foregoing, if this Agreement is assigned by Customer
to any other party, by assignment, operation of law or otherwise, which Party,
prior to the assignment, has an agreement (the "Prior Agreement") with XO
or
any
of
its Affiliates for the provision of services, the services being provided
shall
continue
to be governed by the Prior Agreement, and the Services provided hereunder
shall
continue to be governed by this Agreement, each without reference to the
other.
ARTICLE
15 - NOTICES
15.1
Notices under this Agreement shall be in writing and delivered by overnight
courier (e.g., Federal Express, DHL) or certified mail, return receipt
requested,
to the persons whose names and business addresses appear below and
such
notice shall be effective on the date of receipt by the receiving
Party:
If
to XO:
XO Communications, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
President, ▇▇▇▇▇▇ Sales
With
copy
to: XO
Communications, Inc.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Vice President, Assistant General Counsel
if
to
Customer: United
American Corporation
▇▇▇▇
▇.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
A
Party
may change its address and point of contact by notifying the other
Party
in
accordance with this Article.
ARTICLE
16 - MISCELLANEOUS
16.1
In
the event of any express inconsistency, and only to the extent of such
inconsistency, between the main body of this Agreement and any Exhibits or
Service Orders made a part or in accordance with this Agreement, precedence
shall be given to:
(1)
(2)
(3)
The
main
body of this Agreement The
Exhibits; and Any Service Orders.
Any
Service Orders.
16.2
XO's
telecommunications equipment shall remain the sole and exclusive property
of XO or its assignee, and nothing contained herein shall give or
convey to
Customer any right, title or interest whatsoever in such equipment, which
shall
at all
times be and remain personal property notwithstanding that it may be or become
attached to or embedded in realty. Customer shall not tamper with, remove
or
conceal any identifying plates, tags or labels affixed to the
equipment
showing
XO's ownership thereof XO may substitute, change or rearrange telecommunications
equipment used in providing Service as long as the quality of
the
Service is not impaired.
16.3
This
Agreement does not render either Party the agent or legal representative
of the other Party and does not create a partnership or joint
venture between
Customer and XO. Neither Party shall have any authority to agree for
or bind
the
other Party in any manner whatsoever, This Agreement confers no
rights
of any
kind upon any third party, including without limitation Customer's
End
Users.
16.4
No
waiver of any of the provisions of this Agreement shall be binding unless
it is
in writing and signed by both Parties. The failure of either Party to insist
on
the strict enforcement of any provision of this Agreement shall not constitute
a
waiver of any provision and all terms shall remain in full force and
effect,
16.5
No
subsequent agreement among the Parties concerning the Service shall be effective
or binding unless it is made in writing and executed by authorized
representatives of the Parties. Neither electronic mail nor instant messaging
(IM) shall be considered a "writing" sufficient to change, modify, extend
or
otherwise affect the terms of the Agreement.
16.6
This
Agreement, together with any applicable Tariffs, sets forth the entire
understanding
of the Parties and supersedes any and all prior or contemporaneous agreements,
arrangements or understandings relating to the subject matter
hereof,
written,
oral or otherwise. The Appendices and Exhibits referred to herein are
integral
parts hereof and are hereby made a part of this Agreement.
16.7
If
any part of any provision of this Agreement or any other agreement, document
or writing given pursuant to or in connection with this Agreement
shall
be
invalid or unenforceable under applicable law, said part shall be ineffective
to
the extent of such invalidity only, without in any way affecting the remaining
parts of said provision or the remaining provisions of this
Agreement
16.8
This
Agreement for Service is made pursuant to and shall be construed and enforced
in
accordance with the laws of the Commonwealth of Virginia without regard to
its
choice of law principles. Any action arising out of or related to this Agreement
shall be brought in the state or Federal courts located in Fairfax County,
Virginia, and Customer consents to the exclusive jurisdiction and venue of
such
courts.
16.9
This
Agreement is non-exclusive. Nothing in this Agreement shall prevent Customer
or
XO from entering into similar arrangements with, or otherwise providing Services
to, any other person or entity. Further, Customer understands and agrees
that
(i) as part of XO's normal business, XO will engage in extensive marketing
efforts
to
sell
its services; (ii) such efforts will result in active competition with Customer;
and (iii) such competition is fair and proper and Customer shall not complain
of
business lost to XO as a result.
16.10
Neither Party shall issue a news release, public announcement, advertisement,
or
other form of publicity concerning the existence of this Agreement
or the supplies or Services to be provided hereunder without
obtaining
the
prior written approval of the other Party. Any request by Customer for such
consent
from XO shall be directed to XO's Legal and Corporate Communications
Departments. Customer shall not (i) attempt to sell service to its End Users
or
prospective End Users using XO's name, (ii) represent to End Users or
prospective End Users that they will be XO Customers or that they may obtain
XO
service from Customer, or (iii) indicate to End Users or prospective End
Users
that it has any relationship to XO other than an agreement to purchase
XO
services
on a wholesale basis.
16.11
The
terms and provisions contained in this Agreement that by their sense and
context
are intended to survive the performance thereof by the Parties shall survive
the
completion of performance and termination of this Agreement, including, without
limitation, the making of any and all payments hereunder
XO
CONFIDENTIAL
6
16.12
Any
additional services provided by XO to Customer not included in a Service
Order
shall be governed by the terms of this Agreement and priced in accordance
with
XO's standard pricing as set forth in its applicable Tariffs, price lists
or
Guide.
IN
WITNESS WHEREOF, the
Parties hereto have caused this Agreement to be executed
by
their
duly authorized representatives as of the Effective Date.
United
American Corporation
|
BY:
|
|
AUTHORIZED
SIGNATURE DATE
|
|
PRINT
NAME
|
|
PRINT
TITLE
|
XO
Communications, Inc. on behalf of
its operating Affiliates
|
BY:
|
|
AUTHORIZED
SIGNATURE DATE
|
|
PRINT
NAME
|
|
PRINT
TITLE
|
List
of Exhibits
Exhibit
A
-Inter-Market Inbound Primary Rate Interface Service
XO
CONFIDENTIAL
7
EXHIBIT
A
This
Inter-Market Inbound Primary Rate Interface Service Exhibit
(the
"Service Exhibit"), is
made and
entered into this 12 day
of
October, 2004 (the "Effective Date") between XO
Communications, Inc. ("XO"), a
Delaware corporation with offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
and United
American Corporation ("Customer"),
a Nevada corporation with offices at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (individually, a "Party" and collectively, the "Parties").
This
Service Exhibit describes the terms and conditions applicable to Customer's
use
of XO's Inter-Market Inbound Primary Rate Interface ("PRI") Service. In the
case
of any conflict between this Service Exhibit and the Agreement, the terms
and
conditions of this Service Exhibit shall control. Except as amended herein,
the
Agreement shall remain in full force and effect.
1. INTER-MARKET
INBOUND PRIMARY RATE INTERFACE SERVICE ("PRI") SERVICE
DESCRIPTION
1.1
Inter-Market Inbound PRI Service (the "Service(s)") is a type of Integrated
Service Digital Network ("ISDN") service that is a digital trunking technology
which provides customers with high capacity digital access from their customer
premise equipment ("CPE") to the XO local switched network. The connection
is
provided over a DS-1 facility that carries up to twenty-four (24) channels
delivering 64 Kbps
and
up to 1.544 Mbps of dedicated bandwidth. Inter-Market Inbound PRI Service
is
configured using
twenty-three (23) bi-directional B or Bearer channels and 1 D or Data channel
(23 B+D).
This
Service can also be used to terminate only long distance traffic at the rates
specified on the attached spreadsheet. To the extent the Service will be
utilized to terminate long distance traffic, the customer representations
set
forth in Sections 3.3-3.7 apply.
1.2
Inter-Market Inbound PRI Service is provided to Customer pursuant to the
applicable tariffs and price lists of XO and/or its affiliates and successors
(individually, a "Tariff' and collectively, the "Tariffs"), each as supplemented
by this Service Exhibit to the extent permitted by law. This Service Exhibit
incorporates by reference the terms of each such Tariff XO may modify its
Tariffs from time to time in accordance with applicable law and thereby affect
the Services furnished to Customer. In the event any of XO's applicable Tariffs
are cancelled, Section 1.1(t) of the Agreement shall apply. Capitalized terms
not otherwise defined in the Agreement or herein shall have the meaning given
them in the Tariffs.
1.3
The
Inter-Market Inbound PRI Service will be offered in each area to the Customer
by
an entity which is either an affiliate or subsidiary of XO and/or which XO
manages or with whom it is otherwise contractually affiliated (an "Authorized
Entity"). XO will notify Customer from time to time of the identity of each
Authorized Entity. The terms and conditions of this Service Exhibit are,
and
shall be, applicable to the Inter-Market Inbound PRI Service provided to
the
Customer by each Authorized Entity.
2. AVAILABILITY
2.1
Inter-Market Inbound PRI Service is generally available in the following
locations but each request will be reviewed for capacity prior to committing
to
customer that service can be installed in such location on a LATA-specific
basis, including limited rate centers:
|
Akron
|
Allentown
|
Atlanta
|
Austin
|
Baltimore
|
|
Boston
|
Chicago
|
Clarkston
|
Cleveland
|
Columbus
|
|
Dallas/
Fort Worth
|
Denver
|
Detroit
|
||
|
Freemont
|
Harrisburg
|
Houston
|
Las
Vegas
|
|
|
Lewiston
|
Los
Angeles
|
Memphis
|
Miami
|
|
|
N.
Virginia
|
Nashville
|
New
York City
|
North
New Jersey
|
Oakland
|
XO
CONFIDENTIAL
8
|
|
Philadelphia
|
Phoenix
|
Portland
|
Roseville
|
|
Sacramento
|
Salt
Lake City
|
|
San
Diego
|
San Francisco |
|
Seattle
|
|
Spokane
|
St.
Louis
|
Tampa |
|
Washington,
D.C.
|
|
|
|
3.
PRODUCT TERMS AND CONDITIONS
3.1
The
Inter-Market Inbound PRI Service is a dedicated Inbound only Primary Rate
Interface traffic solution for customers. Inter-Market Inbound PRI Service
provides access to certain, identified LATAs, with up to five (5) rate centers
within a given LATA as a standard option. Additional rate centers within
the
same LATA may be ordered and will be priced according to the pricing schedule
found in the below Pricing Section. 100 DID numbers will be provided per
each
rate center, and additional blocks of numbers are available at pricing described
in Section 4 below.
3.2
The
Inter-Market Inbound PRI Service will be delivered to the Customer Premise
on a
digital basis only. In the event no term is specified in the service order
for
each individual Inter-Market Inbound PRI Service order, it shall be a one
(1)
year term and shall commence on the date of service activation.
3.3
Customer and XO agree that in the event of a decision by a regulatory authority
at the federal, state or local level, including but not limited to the approval
of a new ILEC interconnection arrangement, which alters XO's ability to offer
the current pricing as set forth below, upon thirty (30) days written
notification to Customer, XO may migrate the Customer to the Off-Net Price
Plan
for the remainder of the Customer's term commitment. If XO chooses to migrate
the Customer to an Off-Net Price Plan for the remainder of the Customer's
term
commitment, Customer may cancel the Inter-Market Inbound PRI Service without
incurring cancellation charges upon thirty (30) days written notice to XO
after
receipt of XO's migration notice.
3.4
Customer represents and warrants that all traffic being delivered by Customer
or
its designated agent to XO for local termination, and all traffic that XO
delivers to Customer or its designated agent that has originated in the same
local calling area in which Customer's NPA-NXX is assigned and/or in which
such
traffic is terminated to Customer or its designated agent, is local traffic
or
is legally entitled to be treated as local traffic under all applicable federal,
state and local laws, administrative and regulatory requirements and any
other
authorities having jurisdiction over such traffic. Customer understands that
XO
will rely upon such representation to assign local telephone numbers to Customer
and/or route Customer's traffic for termination as local calling. Customer
represents and warrants that Customer has paid, or shall promptly pay to
XO
pursuant to Section 3.5 below, and all switched access charges associated
with
any of Customer's traffic that is delivered pursuant to this Service Exhibit.
Customer also represents and warrants that neither it nor any of its agents
will
remove or in
any
way
alter Automatic Number Identification ("AM") or Calling Party Number ("CPN")
information associated with any traffic delivered pursuant to this Service
Exhibit.
3.5
Customer shall promptly pay to XO all access charges, reciprocal compensation,
and/or any other charges, surcharges and/or taxes billed to XO by a third
party,
or remitted by XO to a third party, that are associated with any of Customer's
traffic delivered pursuant to this Service Exhibit, including but not limited
to
any retroactive charges, (collectively, "Additional Charges") and that are
not
already reflected in the rates charged by XO for the Services rendered pursuant
to this Service Exhibit. Although XO shall not have any obligation to challenge
any Additional Charges levied by a third party, if XO successfully challenges
imposition of any Additional Charges by a third party, it will refund to
Customer any Additional
Charges
previously paid by Customer to XO that were subject to such successful
challenge. In addition, XO shall have the right, upon five (5) days written
notice to Customer, to revise its rates for Services provided to Customer
to
reflect any Additional Charges. Within thirty (30) days of receipt of written
notice of any such rate increase to reflect Additional Charges, Customer,
upon
giving written notice to XO, may elect to transition any Services affected
by
such rate increase to another carrier over a period of time not to exceed
sixty
(60) days. Notwithstanding any other provision of this Service Exhibit, if,
within the designated thirty (30) day period, Customer does not provide written
notice to XO of its election to
XO
CONFIDENTIAL.
9
transition
the affected Services to another carrier, Customer shall be deemed to have
waived its right to such election. Even if Customer elects to transition
the
affected Services to another carrier, Customer shall still be responsible
for
paying any and all Additional Charges billed to or remitted by XO up to and
including the final transition date. The parties agree to cooperate on the
scheduling of any such transition.
3.6
Customer agrees that, if XO is subjected to an audit by a third party of
Customer's traffic which is the subject of this Service Exhibit, Customer
will
cooperate in any such audit. Customer further agrees that it will protect,
defend, indemnify and hold harmless XO, its subsidiaries, affiliates, officers,
directors and employees from any and all costs resulting from such third
party
action.
3.7
CUSTOMER
HEREBY REPRESENTS AND WARRANTS
THAT
IT
IS
NOT
RELYING
ON
XO IN
ANY
WAY
TO
PROVIDE 911, E911 OR ANY OTHER EMERGENCY SERVICES ("911 SERVICES").
Customer
warrants and represents that it assumes all liability for any and all 911
SERVICES associated directly and indirectly with its services to its end-user
customers or to any holder of a telephone numbers issued by XO pursuant to
the
Service Exhibit and this Addendum ("End-User"). Customer agrees that XO shall
not incur any liability, direct or indirect, to any End-User who dials or
attempts to dial the digits "9-1-1" or any other emergency services number
or to
any other person who may be affected by the dialing of the digits "9-1-1"
or any
other emergency services number. Customer hereby acknowledges and agrees
that it
is fully responsible for all costs and expenses associated with 911 SERVICES,
including but not limited to any and all state and local authorities for
the
funding of 911 SERVICES,
911 assessments, taxes and the like. Customer represents and warrants that
it is
responsible for
all
costs associated with any state or local 911-board assessments, existing
now or
at any time during the term of the Agreement and its renewal periods, including
any assessment based on telephone numbers instead of access lines. Customer
further represents and warrants that, anything herein to the contrary
notwithstanding, it will not deliver any traffic whatsoever to XO for transport
and termination in the local calling area of its end user customer(s), including
but not limited to, 911 traffic. Customer shall include in an appropriate
contract with its End-Users that relates to Services provided under this
Service
Exhibit a limitation of liability that (i) limits its own and XO's liability
to
any End-User of Customer for any error or omission in any directory listing
to
no more than the costs, if any, assessed to the End-User for directory listing
services and (ii) provides that XO shall not incur any liability, direct
or
indirect, to any person who dials or attempts to dial the digits "9-1-1"
or to
any other person who may be affected by the dialing of the digits
"9-1-1".
3.8
Customer is prohibited from intermingling traffic or for utilizing this service
for anything other than enhanced services. Customer expressly agrees, represents
and warrants that it will not use the Services to originate or terminate
voice
calls and/or bypass switched access or other applicable charges. Customer
understands and agrees that this covenant and the provisions set out in Article
11 of the Agreement (collectively, "Restrictions") are material and essential
parts of this Agreement and that Customer's breach of any of the Restrictions
constitutes a material default of this Agreement. XO reserves the right to
terminate this Agreement and/or the Services provided hereunder for cause
immediately upon written
notice to Customer if XO determines in its sole discretion that Customer
is
using or plans to use the
Services
in a manner inconsistent with any of the Restrictions. Without limiting any
other provision of this Agreement,
Customer further agrees (i) to indemnify, defend and hold harmless XO and
its
Affiliates and all
of their
employees, directors, officers, and agents from and against all claims, demands,
actions, causes of actions,
damages, liabilities, losses, and expenses (including reasonable attorney's
fees) incurred as a result of Customer's
breach of this covenant; and (ii) notwithstanding any other provision of
this
Agreement, damages
for
breach of this covenant shall not be capped or limited in any way. XO may
audit
customer's traffic to ensure that Customer is complying with Article 11,
as well
as with the prohibitions set forth above.
4.
PRICING
4.1 For
each
Inter-Market Inbound PRI ordered, the following price elements may
apply:
??
Terminating,
Market Charges Per PRI:
MRC and
NRC charges associated with T-1 port at the XO Sonus switch site in the
terminating market:
XO
CONFIDENTIAL
10
|
MRC
per T_1
|
NRC
|
Term
|
|
$800
|
$0
|
1
year
|
|
$750
|
$0
|
2
year
|
|
$700
|
$0
|
3
year
|
??
Local
loop facility:
MRC and
NRC charges for the physical connection between Customer location and the
XO
Sonus switch site.
Note:
The
local loop charge does not apply if Customer is collocated with XO at the
XO
Sonus switch site.
??
Market
Origination Charges:
MRC and
NRC charges associated with Customer selected markets as defined in section
2.1.
|
1) Originating
Per Market MRC (includes 151
100
DIDs, and up to five (5) XO rate Centers):
|
||
|
MRC
per Market
|
NRC
|
Term
|
|
$350
$325
$300
|
$0
$0
$0
|
1
year
2
year
3
year
|
|
2) DID
Numbers (for > 100 DIDs), block of 20 DID numbers:
|
||
|
MRC
per Block
|
NRC
|
Term
|
|
$20
|
$0
|
1
year
|
|
$20
|
$0
|
2
year
|
|
$20
|
$0
|
3
year
|
|
3) Additional
Per Rate Center MRC (for > 5 rate centers per Originating
Market):
|
||
|
MRC
per Rate Center
|
NRC
|
Term
|
|
$50
|
$0
|
1
year
|
|
$40
|
$0
|
2
year
|
|
$30
|
$0
|
3
year
|
Inter-Market
Inbound PRI Services are billed one (1) month in advance. The first month
of
each Inter-Market Inbound PRI ordered will be prorated for the number of
days
the PRI was in service for the month.
5.
CANCELLATION CHARGES
5.1
There
will be no cancellation charge if a Circuit is cancelled within ten (10)
days of
Customer's Circuit
order. If a Circuit is cancelled after the ten (10) day cancellation period
set
forth above but prior to the Start
of
Service Date, Customer shall pay one month's recurring charges, plus any
applicable service ordering and
installation charges. If a Circuit is cancelled after it has been activated,
including cancellation of Services under
Section 2.4 of the Agreement, Customer is liable for all charges, which Customer
agrees is reasonable,
associated with the service ordering and installation as well as the first
month
recurring charges and for the monthly
recurring charges for the remaining term of the Circuit order, unless such
Circuit does not meet the
specifications set forth herein. It is agreed that XO's damages in the event
of
Inter-Market Inbound PRI Service
cancellation shall be difficult or impossible to ascertain. These provisions
are
intended, therefore, to
establish liquidated damages in the event of cancellation and are not intended
as a penalty.
6.0
NUMBERING
6.1
As a
part of a PRI Service order, Customer may order additional blocks of numbers
in
addition to the minimum
DID numbers provided in accordance with Section 3.1 above. Any and all numbers
provided by XO
shall be
subject to the limitations set forth in this Section.
XO
CONFIDENTIAL
11
6.2
To
the extent Customer's request for any PRI Service involves XO obtaining numbers
on Customer's behalf, XO will undertake a good faith effort to procure and
provide the numbers requested, but XO does not and cannot guarantee that
XO will
be able to provide any or all numbers requested by Customer. Customer
represents
and agrees that it will comply with all applicable laws, rules, regulations
orders and decrees, relative
to any
use of numbers by Customer. The assignment of any specific number to a
Customer's Service will be made
at
the sole discretion of XO. Customer has no property right to any numbers
associated with any Services
furnished by XO. XO reserves the right to assign, designate or change numbers
associated with the Services provided hereunder, including without limitation,
the XO service Central Office prefixes associated with such numbers, when
necessary due to technical issues or as required by any governmental authority,
the North American Numbering Plan Administrator ("NANPA"), the Pooling
Administrator ("PA") or other reasons required by law. XO may reclaim any
numbers not assigned by Customer to its own End-Users when XO deems it necessary
in the conduct of its business or as required by any governmental authority,
NANPA, the PA or any other reason required by law. Customer agrees to fully
cooperate with XO to effect any number changes required hereunder in the
manner
directed by XO, including without limitation, procuring and providing to
XO
additional numbering resources from NANPA or the PA, if and to the extent
requested by XO. Without limiting any contrary terms in the Agreement or
in any
Tariff, XO shall have no liability to Customer or others associated with
any
number resource issues beyond XO's control.
6.3
On or
before January 15 and July 15 of each year, Customer shall provide XO
information (current as of
December 31"
and June
30th,
respectively), regarding Customer's assignment of any numbers to a third
party
including, but not limited to a list of numbers that Customer has assigned
to
its own end-users, in the format and pursuant to the procedures set forth
in
Attachment 1 to this Service Exhibit (the "TN Report(s)"). XO may at other
times
request, and Customer shall provide within ten (10) calendar days of such
request, TN Reports when such information is necessary to assist XO in obtaining
additional numbering resources, or when requested by any governmental authority,
NANPA or any PA. When circumstances allow, XO will use its commercially
reasonable efforts to give Customer as much notice as possible of any need
for a
TN Report to be provided to XO.
6.4
In
the event XO receives a valid request by a third party carrier for customer
proprietary network information, including but not limited to customer service
records, related to a number assigned by XO to Customer and/or Customer's
End-Users, Customer hereby authorizes XO to provide any such information
in XO's
possession to the third party carrier. If XO does not have information
sufficient to satisfy the request by the
third
party carrier, Customer hereby authorizes XO to instruct such third party
carrier to contact Customer directly
and Customer shall provide any such information in its possession to the
third
party carrier consistent
with
industry standards. Furthermore, in the event XO receives from a third party
carrier a port-out request related to a number assigned to Customer, XO shall
port out such number in compliance with procedures set forth by the Federal
Communications Commission.
6.5
The
Parties will address the issue of Local Number Portability ("I_NP") on an
individual case basis and agree to cooperate with one another in arriving
at an
appropriate solution to accommodate LNP issues, if any.
XO
CONFIDENTIAL
12
7.0
TERM
The
term
of this Service Exhibit shall be for two (2) years from the date of execution
of
this Exhibit, but each Service ordered pursuant to this Exhibit will carry
its
own term.
IN
WITNESS WHEREOF, the
Parties have executed this Service Exhibit by representatives duly authorized
as
of the Effective Date set forth above.
United
American
Corporation
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ October 12,
2004
Customer
Signature and Date
XO
Communications, Inc.,
on
behalf
of its operating subsidiaries and affiliates
XO
Signature and Date
XO
CONFIDENTIAL
13
This
Nondisclosure Agreement (this "Agreement") is dated as of the 12th day
of
October, 2004 between XO
Communications, Inc. ("XO"), a
Delaware
corporation, with offices located at 1 1 1 1 ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇,
▇▇
▇▇▇▇▇, and United
American Corporation, a
Nevada
corporation, ("Company"), with offices located at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (XO and Company sometimes are collectively
referred to herein as the "Parties" and individually as a "Party").
RECITALS
XO
and
Company may disclose valuable proprietary information to each other relating
to
their respective operations and businesses providing telecommunications services
only for the purpose of evaluating a business relationship regarding the
procurement of telecommunications services culminating in the execution of
a
Carrier Services Agreement ("CSA") for the provisioning of dedicated transport
services and/or performing other communications services during the term
of the
CSA (the "Project"). For purposes of this Agreement, the party disclosing
confidential information hereunder is hereinafter referred to as the "Disclosing
Party"
and the
party receiving confidential information hereunder is hereafter referred
to as
the "Receiving Party". In addition, other persons and entities, such as
controlled affiliates of a Party, may (at the request of a Party) disclose
valuable proprietary information to the other Party with respect to the
Project.
XO
and
the Company would like to protect the confidentiality of, maintain their
respective rights in, and prevent the unauthorized use and disclosure of,
such
information.
AGREEMENT
XO
and
Company hereby agree as follows:
I.
Confidential
Information. As
used
in this Agreement, "Confidential Information" means information not generally
known to the public, and maintained by the Disclosing Party as confidential,
whether of a technical, business or other nature that relates to the Project
stated above or that, although not related to such Project, is nevertheless
disclosed as a result of the Parties' discussions in that regard, and that
should reasonably have been understood by the Receiving Party, because of
(i)
legends or other markings, (ii) the circumstances of disclosure or (iii)
the
nature of the information itself, to be proprietary and confidential to the
Disclosing Party. Confidential Information may be disclosed in written or
other
tangible form (including information in computer software or held in electronic
storage media) or by oral, visual or other means. For purposes of this
Agreement, "Disclosing Party" includes controlled affiliates of a Party who
disclose Confidential Information to the Receiving Party regarding the
Project.
2. Use
of Confidential Information. The
Receiving Party, except as expressly provided in this Agreement, shall not
disclose the Disclosing Party's Confidential Information to anyone without
the
Disclosing Party's prior written consent. The Receiving Party shall protect
such
Confidential Information from disclosure to others, using the same degree
of
care used to protect its own confidential or proprietary information of like
importance, but in any case using no less than a reasonable degree of care.
The
Receiving Party shall not reverse-engineer, decompile, or disassemble any
hardware or software provided or disclosed to it and shall not remove, overprint
or deface any notice of copyright, trademark, logo, legend or other notice
of
ownership from any originals or copies of Confidential Information it obtains
from the Disclosing Party. The Receiving Party shall not use Confidential
Information for any purpose other than with respect to the Project.
3. Exceptions.
The provisions of Section 2 shall not apply to any information that (i) is
or
becomes publicly available without breach of this Agreement; (ii) can be
shown
by documentation to have been known to the Receiving Party without
confidentiality restrictions at the time of its receipt from the Disclosing
Party; (iii) is rightfully received from a third Party who did not acquire
or
disclose such information by a wrongful or tortious act, or in breach of
a
confidentiality restriction; (iv) can be shown by documentation to have been
independently developed by the Receiving Party without reference to any
Confidential Information; or (v) is identified by the Disclosing Party as
no
longer proprietary or confidential.
4. Receiving
Party Personnel. The
Receiving Party shall restrict the possession, knowledge, development and
use of
Confidential Information to its employees, agents, subcontractors, consultants,
advisors and entities controlled by it (collectively, "Personnel") who have
a
need to know Confidential Information in connection with the Project. The
Receiving Party's Personnel shall have access only to the Confidential
Information they need for such purposes. The Receiving Party shall ensure
that
its Personnel are bound
by
confidentiality obligations substantially similar to those contained herein
and
that such Personnel comply with this Agreement.
5.
Disclosures to Governmental
Entities. If,
in
the opinion of its counsel, the Receiving Party becomes legally obligated
to
disclose Confidential Information, the Receiving Party shall give the Disclosing
Party prompt written notice sufficient to allow the Disclosing Party to seek
a
protective order or other appropriate remedy, and shall, to the extent
practicable, consult with Disclosing Party in an attempt to agree on the
form,
content, and timing of such disclosure. The Receiving Party shall disclose
only
such information as is required, in the opinion of its counsel, and shall
exercise all reasonable efforts to obtain confidential treatment for any
Confidential Information that is so disclosed..
6.
Ownership of Confidential Information. All
Confidential Information disclosed under this Agreement (including information
in computer software or held in electronic storage media) shall remain the
exclusive property of the Disclosing Party, and the Receiving Party shall
have
no rights, by license or otherwise, to use the Confidential Information except
as expressly provided herein. No patent, copyright, trademark or other
proprietary right is licensed, granted or otherwise conveyed by this Agreement
with respect to Confidential or other information.
7.
No
Warranty or Obligation to Proceed. No warranties of any kind are given by
either
Party with respect to the accuracy, appropriateness or completeness of
information provided to the other. The Parties agree that, unless and until
a
definitive written agreement with respect to any transaction relating to
disclosures under this Agreement is completed, neither Party shall be under
any
legal obligation of any kind whatsoever with respect to such a transaction
by
virtue of this Agreement or any written or oral expression with respect to
such
a transaction by any of their respective directors, officers, employees,
agents,
representatives or advisors thereof, except, in the case of this Agreement,
for
the matters specifically agreed to herein,
8.
Return of Confidential Information. The
Receiving Party promptly shall return or destroy upon request, and verify
in
writing the completeness of the Confidential Information returned or the
destruction of, all tangible material embodying Confidential Information
(in any
form and including, without limitation, all summaries, copies and excerpts
of
Confidential Information and all electronic media or records containing or
derived from Confidential Information) upon the earlier of (i) the completion
or
termination of the dealings between the Disclosing Party and the Receiving
Party, and (ii) the Disclosing Party's written request. Upon request by the
Disclosing Party, the Receiving Party shall provide a written certificate
of
such destruction signed by an officer of the Receiving Party. The
confidentiality obligations set forth in Section 2 above shall survive any
such
return or destruction of Confidential Information.
9.
Export
Control. The Receiving Party acknowledges that the Confidential Information
governed by this Agreement is subject to US. export laws and regulations
and
that any use or transfer of the Confidential Information or products
incorporating the Confidential Information must be authorized under those
laws
and regulations. The Receiving Party agrees that it shall not use, distribute,
transfer or transmit directly or indirectly the Confidential Information
or any
immediate product (including processes and services) produced directly by
the
use of such Confidential Information, except in compliance with U.S. export
laws
and regulations.
10.
Independent Development. The
Disclosing Party acknowledges that the Receiving Party may currently or in
the
future be developing information internally, or receiving information from
other
parties, that is similar to the Confidential Information. Accordingly, nothing
in this Agreement shall be construed as a representation or agreement that
the
Receiving Party shall not develop, or have developed for it, products, concepts,
systems or techniques that are similar to or compete with the products,
concepts, systems or techniques contemplated by or embodied in the Confidential
Information, provided that the Receiving Party does not violate any of its
obligations under this Agreement in connection with such development. Nothing
herein shall restrict either Party from pursuing any business opportunities
provided it complies at all times with the non-disclosure obligations set
forth
herein.
11.
Remedies. The Receiving Party acknowledges that Confidential Information
is
unique and valuable, and that disclosure or use of Confidential Information
in
violation of this Agreement could cause irreparable harm to the Disclosing
Party
for which monetary damages may be difficult to ascertain or be an inadequate
remedy. Therefore, the Parties agree that in the event of a breach or threatened
breach of confidentiality, the Disclosing Party may be entitled to specific
performance and injunctive or other equitable relief
14
as
a
remedy for any such breach or anticipated breach without the necessity of
posting a bond, Any such relief shall be in addition to and not in lieu of
any
appropriate relief in the way of monetary damages.
12. Limited
Relationship. This Agreement shall not create a joint venture, partnership
or
other formal business relationship or entity of any kind, or an obligation
to
form any such relationship or entity. Each Party shall act as an independent
contractor and not as an agent of the other Party for any purpose, and neither
shall have the authority to bind the other.
13. Cumulative
Obligations. Each Party's obligations hereunder are in addition to, and not
exclusive of, any and all of its other obligations and duties to the other
Party, whether express or implied, in fact or in law.
14. Assignment.
This Agreement may not be assigned in whole or in part by any Party without
the
prior written consent of the other Party except that either Party may assign
this Agreement without consent to any operating subsidiary or controlled
affiliate of the assigning Party. Any such assignment without the other Party's
prior written consent shall be void.
15. Scope;
Termination. This Agreement shall become effective as of the date first written
above and shall automatically terminate at the end of one (1) year thereafter
or
upon the completion or termination of the Parties' evaluation or pursuit
of the
Project, whichever is later. Notwithstanding such expiration or termination,
all
of Receiving Party's nondisclosure obligations pursuant to this Agreement
shall
survive with respect to any Confidential Information received prior to such
expiration or termination.
16. Nonwaiver.
Any failure by either Party to enforce the other Party's strict performance
of
any provision of this Agreement shall not constitute a waiver of its right
to
subsequently enforce such provision or any other provision of this
Agreement,.
17. Governing
Law; Etc. This
Agreement shall be governed by the laws of the State of New York without
regard
to its choice of law provisions, and may be executed in as many counterparts
as
may be required, including facsimile, each of which when delivered is an
original but all of which taken together constitute one and the same instrument
and the facsimile execution pages will be binding upon the executing Party
to
the same extent as the original executed pages. If a provision of this Agreement
is held invalid or unenforceable under any applicable law, such invalidity
or
unenforceability shall attach only to such provision or part thereof and
the
remaining part of such provision and all other provisions hereof shall continue
in full force and effect. Further, all terms and conditions of this Agreement
shall be deemed enforceable to the fullest extent permissible under applicable
law, and when necessary, the court is requested to reform any and all terms
or
conditions to give them such effect.
18. Entire
Agreement; Amendment. This Agreement constitutes the entire agreement between
the Parties relating to the matters discussed herein and may be amended or
modified only with the mutual written consent of the Parties. Electronic
Mail
shall in no way be considered a "writing" sufficient to change, modify, extend
or otherwise affect the terms of the Agreement.
IN
WITNESS WHEREOF, the
Parties have executed this Agreement on the date first written
above.
XO
Communications, Inc.
By:
Printed
Name:
Title:
Date:
United
American Corporation
By:
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Printed
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
CEO
Date:
October 12, 2005
XO
CONFIDENTIAL
15