QWEST COMMUNICATIONS CORPORATION
CARRIER SERVICE AGREEMENT
THIS CARRIER SERVICES AGREEMENT (the "Agreement") is made and entered into as of
the Effective Date (as hereinafter defined) by and between QWEST COMMUNICATIONS
CORPORATION ("Qwest") located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
ORIX GLOBAL COMMUNICATIONS, INC. (the "Customer") located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ #▇-▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇. Qwest and Customer are sometimes
referred to in this Agreement collectively as the Parties and singularly as a
"Party".
TERMS AND CONDITIONS
1. SCOPE OF AGREEMENT
Upon the request of Customer, Qwest agrees to provide to Customer the
Qwest services for the prices and subject to the terms and conditions
set forth herein described in the exhibits attached hereto (the
"Service(s)"). The Services shall be provided in accordance with
industry standards for such Services. Customer recognizes that certain
of the Services or components of the Services may be provided by
Affiliates (as hereinafter defined) of Qwest. To the extent certain
terms are not covered in this Agreement, the Services may be provided
pursuant to Qwest Tariff F.C.C. No. 2 and No. 3 and applicable state
tariffs (collectively, the "Tariff(s)"), which are on file with the
U.S. Federal Communications Commission ("FCC") and applicable state
regulatory bodies, as modified from time to time by Qwest. As
applicable to the furnishing of Services hereunder, the Tariff is
hereby incorporated herein, except that the terms and conditions of
this Agreement shall supplement or, to the extent inconsistent,
supersede Tariff terms and conditions.
2. SERVICE RATES AND TERMS
(A) Qwest Service descriptions and rates are shown and described in the
following Exhibits:
Qwest Express (Blended) Terminating Services Description Exhibit
Qwest Express (Blended) Terminating Services Rate Schedule Exhibit
Qwest Express 8XX Originating Transport and RESP ORG Services
Description Exhibit
Qwest Express 8XX Originating Transport and RESP ORG Services Rate
Schedule Exhibit
Qwest reserves the right to eliminate any Service offerings and/or
modify any charges for Service offerings upon written notice to
Customer as follows:
a) Rate decreases and additional services offered, if any, in Qwest's
discretion, shall be effective immediately upon written
notification to the Customer or upon an effective date set forth by
Qwest in such notification;
b) All rates, Services and agreements specified in Exhibits and
attachments are subject to change immediately, with no prior notice
to Customer, in the event there are mandated surcharges imposed by
a federal, state or governmental agency. Further, notwithstanding
any statements to the contrary contained in the Tariff, in the
event that any regulatory agency, legislative body or court of
competent jurisdiction promulgates regulations or modifies existing
ones including, without limitation, regulations regarding payphone
compensation, access charges and/or universal service (the
"Regulatory Activity"), Qwest reserves the right, at any time upon
written notice, to: (i) pass through to Customer all, or a portion
of, any
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charges or surcharges directly related to such Regulatory Activity;
or (ii) modify the rates, including any rate guarantees, and/or
other terms and conditions contained in this Agreement and/or the
Tariff to reflect the impact of such Regulatory Activity;
c) International rates, Services and agreements specified in Exhibits
and attachments, including Canadian and Mexican services, are
subject to change upon five (5) calendar days written notice to
Customer; All other rates, Services and agreements specified in
Exhibits and attachments, excluding international, Canadian, and
Mexican services, are subject to change upon thirty (30) calendar
days written notice to Customer;
(B) Customer shall have the right to terminate this Agreement in the
event of any material (i) increase in rates for Services utilized
by Customer, (ii) change in the Tariff or (iii) change in the
Services, without penalty or early termination fee if such notice
is delivered to Qwest within thirty (30) calendar days of the date
of Qwest's notice of such increase or change; provided, however,
that Customer shall have no obligation to use the Services during
such notice period.
3. WARRANTIES
(A) Qwest represents and warrants to Customer that it has the right to
provide to Customer the Services specified herein, and that it is an
entity, duly organized, validly existing and in good standing under the
laws of its origin, with all requisite power to enter into and perform
its obligations under this Agreement in accordance with its terms.
(B) Qwest represents and warrants to Customer that all Service rendered
by it hereunder 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 this Agreement and it shall be responsible
for applying for, obtaining and maintaining all registrations and
certifications which may be required by such authorities. Qwest shall
secure and maintain in full force and effect all licenses, permits and
authorizations from all governmental agencies to the extent that the
same are required or necessary for the performance of its obligations
hereunder including without limitation registering or filing this
Agreement with the appropriate governmental agency in the event such
registration is required by local law.
4. CUSTOMER SERVICE
Customer acknowledges and agrees that it shall provide all billing,
inquiry, and customer service to Customer's end-users or customers (the
"End-Users").
5. REPRESENTATION
Each Party shall not use any trademark, service ▇▇▇▇, brand name or any
other intellectual property of the other Party or its respective
affiliate without such Party's prior express written consent.
Notwithstanding the foregoing, Customer may disclose, during pre-sale
activities, that Qwest is the underlying carrier of its service. In no
event shall Customer represent or state to End Users or prospective End
Users that it has any relationship with Qwest other than an agreement
to purchase Qwest's services. The Parties agree to promptly and fully
cooperate with the other Party to address and resolve all issues,
problems, administrative procedures, End User complaints, regulatory
investigations or inquiries or any other circumstances arising from
Customer's use of Qwest Services.
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6. FINANCIAL RESPONSIBILITY, PAYMENT AND SECURITY
(A) Except as (i) otherwise provided in this Agreement or an Exhibit or
as (ii) Customer has been otherwise notified by Qwest, all Qwest
invoices (the "Invoices") are due upon receipt. Any undisputed amount
on any Invoice which is not paid in full by Customer within thirty (30)
calendar days from Invoice date via check or wire transfer, or in
another manner explicitly agreed to by Qwest for Customer, shall be
considered past due (the 31st day being the "Past Due Date"). All
discounts and promotions, if any, and taxes, will be included in the
monthly invoice. Any payment of an undisputed amount received by Qwest
on or after the Past Due Date shall be subject to an interest charge on
delinquent amounts at the rate of 1.00% of the late payment per month
or the maximum lawful rate allowable under applicable state law,
whichever is lower. Such interest charge shall be applied on any late
payments, commencing upon the Past Due Date through the actual date of
receipt of payment.
(B) Any and all applicable national, federal, state and local taxes,
including without limitation, all use, sales, value-added, surcharges,
excise, franchise, property, commercial, gross receipts, license,
privilege or other similar taxes, levies, surcharges, duties, fees, or
other tax-related surcharges whether charged to or against Qwest or
Customer, with respect to the Services or underlying facilities
provided by Qwest, as well as any other imposition by any governmental
authority which has the effect of increasing Qwest's cost of providing
the Services or the underlying facilities, shall be payable by Customer
in addition to the other charges set forth in this Agreement.
(C) The Parties acknowledge that they may also be Parties under the
Carrier Service Agreement for International Terminating Traffic (the
"Other Services Agreement"). While there is an Other Services Agreement
in force, Qwest and ORIX shall each prepare a monthly Invoice for their
respective Services under this Agreement and the Other Services
Agreement following the end of each billing month. In order to exercise
this "offset" provision, the Parties agree to have identical calendar
month billing cycles. Each Party shall forward a bi-monthly Invoice, at
the dates as mutually agreed to by the Parties, to the other Party as
soon as practicable after the end of the bi-monthly period to which the
Invoice relates, but in no event no later than the end of the third
(3rd) business day following the bi-monthly period to which the Invoice
relates (the "Invoice Exchange Date").
(D) No allowances shall be made in the bi-monthly Invoices for
uncollectable amounts from a Party's End Users. Amounts set forth in a
bi-monthly Invoice shall be deemed to have been accepted by the Party
to whom it is rendered if that Party does not object in writing before
the end of the period fifteen (15) calendar days after the Invoice
Exchange Date. Adjustments and credits as agreed upon by the Parties
shall be included in the subsequent bi-monthly Invoice.
(E) The sums reflected in the bi-monthly Invoices exchanged by the
Parties shall be reduced to a net balance and reflected on a bi-monthly
settlement statement sent by Qwest to Orix within three (3) business
days of the Invoice Exchange Date. The net balance on each bi-monthly
settlement statement due shall be paid by the debtor party to the
creditor party as soon as practicable, but in no event no later than
the end of fifteen (15) calendar days after the Invoice Exchange Date.
The payment of undisputed amounts shall not be delayed pending
agreement to the adjustment of disputed items in that Invoice.
Adjustments that are later agreed shall be included in a subsequent
monthly Invoice and settlement statement.
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(F) If full payment of all undisputed amounts is not made on or prior
to the Past Due Date and then does not cure such failure within seven
(7) calendar days after receiving written notice thereof from Service
Provider, Qwest, in its sole discretion, shall have the right to
suspend all or any part of the Services until such time as Customer has
paid all unpaid and undisputed balances (including interest), or to
terminate all or any part of the Service. During any such suspension,
and upon any such termination, no service interruption shall be deemed
to occur.
(G) Customer acknowledges that it may not withhold any sums invoiced by
Qwest for fraudulent calls Customer must notify Qwest within ninety
(90) calendar days of receipt of any contested or disputed amount
concerning charges as they appear on the Qwest billing statement.
Customer's notification of any contested or disputed amount must be in
writing and sent to: Credit & Collections Department, Qwest
Communications Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or
to (▇▇▇) ▇▇▇-▇▇▇▇ by facsimile with duplicate notification to follow
via regular U.S. Mail or overnight delivery. Written notification must
be accompanied with a detailed written support, for any service
interruption credit or other credit to which Customer believes itself
entitled, and Qwest and Customer will promptly address and attempt to
resolve the claim within forty-five (45) calendar days after such
notification. If the dispute is not resolved during such period, then
either Party may seek arbitration in accordance with this Agreement.
Qwest, in its sole discretion exercised in good faith, may reject such
documentation and/or explanation as inadequate. If Qwest so rejects
such documentation, Customer shall have an additional ten (10) business
days to provide additional supporting documentation to Qwest. If Qwest
rejects such additional documentation, Qwest shall so notify Customer
in which case the disputed portion of the ▇▇▇▇ shall be paid by
Customer within ten (10) business days of Customer's receipt of Qwest's
final notice of inadequacy. All Credits or adjustments for service
outages will be made pursuant to applicable provisions of the Tariffs.
In consideration of the discounts offered by Qwest pursuant to this
Agreement, with respect to any unpaid balance(s) owed by Customer to
Qwest, Qwest shall have the right to offset such unpaid balance(s) from
any amounts that Qwest owes to Customer and any of its Affiliates (as
hereinafter defined) under any other agreements between the Parties and
their respective Affiliates.
(H) Customer acknowledges and agrees that Qwest may reasonably require
additional security and/or payment terms under this Agreement prior to
the commencement of Services hereunder or during the Term hereunder, if
there is a material change in circumstances of Customer's actual or
anticipated usage hereunder, Customer's financial condition during any
time that Customer uses the Service or Customer's Carrier Service
Agreement for International Terminating Traffic with Qwest is
terminated. Qwest shall establish a credit limit for the procurement of
the Services by Customer and such credit limit may change from time to
time. Qwest will not automatically notify Customer of any such change
but will supply such information to Customer upon Customer's request.
7. TERM
The initial term of this Agreement (the "Initial Term") will begin on
the first day of the first billing cycle following the Effective Date
(as hereinafter defined) of this Agreement (the "Initial Service Date")
and will continue for a period of the longer of (i) twelve (12)
calendar months from the Initial Service Date, or (ii) as long as a
term for a Service attached to this Agreement (the "Service Term") is
in effect. The "Effective Date" is defined as the date this Agreement
is signed by an authorized officer of Qwest after having been signed by
Customer. Applicable Service rates and discounts, if any, shall be
effective as of their respective effective date in the applicable
Service rate or discount schedule. Following the Initial Term, the
Agreement shall be
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automatically renewed for successive one (1) year periods (each a
"Renewal Term") until either Party provides the other Party with at
least thirty (30) calendar days prior written notice of its intent to
terminate this Agreement and the intended date of such termination. The
Initial Term and Renewal Terms are sometimes collectively referred to
herein as the "Term".
8. OBLIGATIONS UPON EXPIRATION OR TERMINATION OF TERM
Upon expiration or termination of this Agreement, Customer shall pay
all outstanding balances hereunder in accordance with Section 6. Upon
expiration or termination of this Agreement, Customer shall be fully
subject to all terms and conditions, including standard tariffed rates,
set forth in the Qwest Tariff for Qwest services received by Customer,
if any, after such date.
9. EARLY TERMINATION
(A) Customer may cancel this Agreement, without being subject to any
cancellation or early termination fee or charge, except for
unpaid charges as of the effective date of termination, by
written notice of such cancellation given to Qwest not less than
(30) calendar days prior to the date of such cancellation, if
the Service provided under this Agreement is the subject of
service outages or interruptions accumulating 120 hours or more
over any period of 180 consecutive calendar days.
(B) Either Party may terminate this Agreement without liability or
further obligation, except for unpaid charges as of the
effective date of such termination, if Qwest is prohibited from
furnishing the Service or if any material rate or term contained
herein is substantially changed by order of the highest court of
competent jurisdiction to which the matter is appealed, the FCC,
or any other federal, state or local government authority.
(C) Customer acknowledges and agrees that Qwest may, at any time,
and without notice to End Users, discontinue providing service
to Customer in accordance with the terms of the Tariff and that
such discontinuance may result in termination of service to the
End Users.
(D) Notwithstanding the foregoing, and without affecting Qwest's
right to receive payment for Customer usage of Services accrued
prior to the termination date, Qwest retains the right to
terminate this Agreement immediately and without prior written
notice, under any of the following circumstances:
(i) Customer becomes or is declared insolvent or bankrupt, is
the subject of any proceedings related to its liquidation,
insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all
or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment
of all or substantially all of its obligations;
(ii) material change in Customer's ownership, except as
otherwise permitted; or
(iii) Customer's failure to abide by all terms of Section 7
hereof or of any security requirements of Customer,
including, without limitation, Customer's failure or
refusal to provide additional security or payment upon
Qwest's request, or for any illegal acts on the part of
Customer, its officers, directors, employees, contractors,
agents, or servants, relating to the subject matter of
this Agreement; or
(iv) for any material breach by Customer of this Agreement.
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(E) As long as Customer has not made any revenue or usage commitment
under any of the Service Exhibits attached hereto, then Customer
shall have the right to terminate this Agreement for
convenience, without termination liability or fee except for
Customer's payment of unpaid Services usage charges accrued
prior to the date of termination, by written notice of such
intent to terminate and the intended date of termination given
to Qwest not less than thirty (30) calendar days prior to the
date of termination set forth in such notification. Customer
shall also have the right to terminate this Agreement upon the
material breach of Qwest provided that Customer has given Qwest
notice thereof, and Qwest shall have a period of thirty (30)
calendar days to cure, if curable, such breach.
10. DEFAULT
Without regard to any other provisions of this Agreement or rights
hereunder, the Parties agree that it shall be a material default under
this Agreement if Customer fails to pay Qwest in accordance with
Section 6 of this Agreement. Upon default under this Section 11, Qwest
shall be entitled to all rights and remedies under the Qwest Tariff and
other applicable law.
11. LIABILITY
QWEST'S LIABILITY ARISING OUT OF DELAYS IN INSTALLATION OR RESTORATION
OF THE SERVICE HEREUNDER OR OUT OF MISTAKES, ACCIDENTS, OMISSIONS,
INTERRUPTIONS, ERRORS OR DEFECTS IN THE ORDERING, PROCESSING,
PROVISIONING, OR TRANSMISSION OF SERVICE SHALL IN NO EVENT EXCEED THE
AMOUNT OF THE APPLICABLE ALLOWANCE AVAILABLE UNDER SECTION 7(B) OR THE
TARIFFS. WITHOUT LIMITING THE FOREGOING, QWEST SHALL HAVE NO OBLIGATION
TO PROVIDE ALTERNATIVE ROUTING WITH RESPECT TO ANY SERVICE OR
TRANSMISSION CAPACITY PROVIDED PURSUANT TO THIS AGREEMENT. OTHER THAN
AS SET FORTH IN THE TARIFF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY OTHER
RESPECT, FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
ACTUAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR
NATURE WHATSOEVER, EVEN IF FORESEEABLE, ARISING OUT OF ANY MISTAKE,
ACCIDENT, ERROR, OMISSION, INTERRUPTION, OR DEFECT IN TRANSMISSION, OR
DELAY ARISING OUT OF OR RELATING TO THE SERVICES OR THE OBLIGATIONS OF
QWEST PURSUANT TO THIS AGREEMENT AND ANY EXHIBITS THERETO INCLUDING,
WITHOUT LIMITATION, ANY FAILURE TO TIMELY OR ACCURATELY PROVISION OR
INSTALL ANY PORTION OF THE SERVICES, OR CONDITIONS WHICH MAY RESULT
FROM ACTIONS BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHER CARRIERS
THAT QWEST RELIES ON TO PROVIDE SERVICE TO CUSTOMER. QWEST MAKES NO
WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION,
QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF
THE SERVICE OR LOCAL ACCESS OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES BY QWEST ARE HEREBY EXCLUDED AND DISCLAIMED. FOR THE PURPOSE
OF THIS SECTION, THE TERM "QUEST" SHALL BE DEEMED TO INCLUDE QWEST,
ITS EMPLOYEES, OFFICERS, DIRECTORS, AND AFFILIATES,
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AND ANY PERSON OR ENTITY ASSISTING QWEST IN ITS PERFORMANCE OR
OBLIGATIONS UNDER THIS AGREEMENT. CUSTOMER HAS ACCEPTED THE LIMITATIONS
OF LIABILITY AND DISCLAIMERS SET FORTH HEREIN AS PART OF A BARGAIN TO
LOWER THE PRICE OF QWEST'S SERVICES HEREUNDER AND UNDERSTANDS THAT THE
PRICES OF SAID SERVICES WOULD BE HIGHER IF QWEST WERE REQUIRED TO
ACCEPT GREATER LIABILITY AND/OR DAMAGE LIABILITY.
12. RELATIONSHIP
Neither Party shall have the authority to bind the other by contract or
otherwise make any representations or guarantees on behalf of the
other. Both Parties acknowledge and agree that the relationship arising
from this Agreement is one of independent contractor, and does not
constitute an agency, joint venture, partnership, employee relationship
or franchise.
13. ASSIGNMENT
Neither Party may assign this Agreement or any of its rights hereunder
without the prior written consent of the other Party, which the other
Party may grant or withhold in its sole discretion. Notwithstanding the
foregoing, the Parties may assign this Agreement or any of their rights
and benefits hereunder without the consent of the other Party to any
Affiliate ("Affiliate" defined as, "any entity that directly controls,
is controlled by or is under common control with that party") of such
Party, to the surviving entity into which such Party may merge or
consolidate, or to any entity to which the Party transfers all, or
substantially all, of its business and assets, provided that the
assignor shall remain liable for all of its obligations hereunder and
such assignee shall in writing assume all obligations of the assignor
hereunder arising after the effective date of such assignment. Any
prohibited assignment or delegation shall be null and void. If during
the Term of this Agreement, an entity acquires a controlling interest
in or substantially all of the assets of Qwest, the acquiring entity or
successor shall have the right to terminate this Agreement without
further liability, financial or otherwise.
14. REPORTING REQUIREMENTS
Where reporting obligations or requirements are imposed upon Qwest by
any third party or regulatory agency, and which such obligations or
requirements can only be satisfied by obtaining information from
Customer, Customer agrees to comply with such obligations and
requirements, as reasonably required by Qwest, and to hold Qwest
harmless for any failure of compliance with any such obligations or
requirements.
15. GOVERNING LAW, CERTIFICATIONS AND WARRANTIES
(A) Customer understands that Qwest, in conducting its business in
the manner set forth herein, is subject to the Communications
Act of 1934, as amended, and as interpreted and applied by the
Federal Communications Commission. All terms of this Agreement
not subject to the Communications Act of 1934 as amended and as
interpreted and applied by the F.C.C. will be interpreted
according to New York state law, without regard to the choice of
law provisions of such State.
(B) If service is provided solely within a single state in a manner
which subjects the Service to regulation by such state, then the
terms and conditions of such Service and of this Agreement
shall be subject to such regulations and to any addendum to this
Agreement
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relating thereto which is delivered by Qwest to Customer.
Customer shall have the right to terminate this Agreement within
ten (10) business days of receipt of such addendum without
further liability hereunder.
(C) Customer certifies and warrants that it, and its business of
resale of the Services, is in compliance with and will continue
to be in compliance, in all material respects, with all federal,
state and local laws and regulations relating to its performance
under this Agreement. Customer certifies further that it is in
good standing under the laws of the States in which it was
organized, is existing or is doing business. Customer is solely
responsible for obtaining all licenses, approvals, and
regulatory authority for its operation and the provision of
services to its End Users. Any breach of the obligations of a
Party under this Section shall be a material breach of this
Agreement. If a Party does not comply with this Section, in
addition to any remedies available to such other Party at law or
in equity, Qwest, in its sole discretion, may elect to decline
to accept additional orders under this Agreement or each the
non-breaching Party may immediately terminate this Agreement
without further liability or obligation to the other Party
(except for the payment for Services used).
16. SURVIVAL
All warranties, representations, indemnities, covenants and other
agreements of the Parties hereto shall survive the execution, delivery
and termination of this Agreement and shall, notwithstanding the
execution, delivery and termination of this Agreement, continue in full
force and effect. The terms and conditions of the Qwest Tariff along
with Section 6, 7, 9, 11, 12, 13, 15, 18, 24 and any provision hereof,
which, by its context is intended to survive the termination or
expiration hereof, shall also survive. Additionally, any obligation to
hold harmless and indemnify a Party hereunder shall survive the
termination or expiration of this Agreement.
17. INDEMNIFICATION
Customer shall indemnify, defend and hold harmless Qwest from and
against any claims, actions, damages, liabilities, costs, judgments or
expenses (including attorney fees and an allocable portion of in-house
counsel fees) arising (i) out of third Party claims resulting from the
resale or reselling of the Service, including but not limited to the
provision or termination of, or failure to provide, service by Customer
to End Users and (ii) under this Agreement. Qwest shall indemnify,
defend and hold harmless Customer from and against any claims, actions,
damages, liabilities, costs, judgments or expenses (including attorney
fees and an allocable portion of in-house counsel fees) arising under
this Agreement.
18. CONFIDENTIALITY
Should confidential or proprietary information of either Customer or
Qwest be disclosed to the other Party in the performance of this
Agreement, the Party receiving such confidential or proprietary
information (hereinafter "Recipient") hereby agrees to receive such
information in confidence, and take such precautions as may be
necessary to protect same from disclosure to others, during the Initial
Term of this Agreement and for three (3) years following termination of
this Agreement. Precautions taken shall be at least equivalent to
Recipient's precautions with respect to its own confidential and
proprietary information, but in no event less than a best efforts
standard of care. ("Confidential Information" shall mean the
proprietary and confidential data or information of a Party which is of
tangible or intangible value to that Party and is not public
information or is not generally known or available to that Party's
competitors but is known only to that Party and those of its employees,
independent contractors, consultants, customers or
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agents to whom it must be confided in order to apply it to the uses
intended, including, without limitation, information regarding that
Party's customers or prospective customers, marketing methods and
business plans gained by the other Party). Confidential Information
shall not include information which (i) at the time of disclosure to
Recipient is in the public domain through no acts or omission of
Recipient; (ii) as shown by written records, is already known by
Recipient; (iii) is revealed to Recipient by a third party who does not
thereby breach any obligation of confidentiality and who discloses such
information in good faith; or (iv) is disclosed pursuant to a legal
order to disclose same to any governmental entity or pursuant to
judicial or quasi judicial action (so long as Recipient gives
disclosing Party prompt written notice sufficient to allow disclosing
Party to seek a protective order or other appropriate remedy).
Recipient agrees to disclose only such confidential information as is
legally required and will use its best efforts to obtain confidential
treatment for any confidential or proprietary information so disclosed.
19. INTEGRATION AND AMENDMENTS
The Agreement, together with all Exhibits, represents the entire
understanding of the Parties with respect to the subject matter under
this Agreement. Any and all prior offers, contracts, agreements,
representations and understandings made to or with Customer by Qwest or
any Affiliate or predecessors-in-interest with respect to the subject
matter under this Agreement, whether oral or written, shall be
superseded by this Agreement. All amendments to this Agreement shall be
in writing and signed by both Parties.
20. WAIVER
The terms, covenants, representations and warranties of this Agreement
may be waived only by a written instrument executed by the Party
waiving compliance. The failure of either Party at any time to require
performance of any provision hereof shall, in no manner, affect the
right at a later date to enforce the same. No waiver by either Party of
any breach of any term, covenant, representation or warranty contained
in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be construed as a further or continuing
waiver of any such breach or the breach of any other term, covenant,
representation or warranty of this Agreement.
21. SEVERABILITY
In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
Further, in the event that any provision of this Agreement shall be
held to be invalid, illegal or unenforceable by virtue of its scope or
period of time, but may be made enforceable by a limitation thereof,
such provision shall be deemed to be amended to the minimum extent
necessary to render it valid, legal and enforceable or in the
alternative both Parties shall negotiate in good faith to substitute
for such invalid, illegal, or unenforceable provision a mutually
acceptable provision that is consistent with the original intent of the
Parties.
22. NOTICE
Except when actual receipt is expressly required by the terms hereof,
notice is considered given either (i) when delivered by facsimile
service to the phone number listed below with duplicate notification
sent via regular U.S. Mail or overnight delivery or; (ii) when
delivered in person to the recipient named below; or (iii) after
deposit in the United States mail in a sealed envelope or
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container, either registered or certified mail, return receipt
requested, postage prepaid, or via overnight courier service, addressed
by name and address to the Party or person intended as follows:
To Customer: Orix Global Communications, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ #▇-▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile #: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
To Qwest: Qwest Communications Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile H: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Any Party may at any time change its address or facsimile number for
notification purposes by giving the other Party prior written notice as
provided in this Section by setting forth the new address and the date
on which it will become effective. Either Party may require, by prior
written notice given at any time or from time to time, subsequent
notices to be given to another individual person, whether a Party or an
officer or representative, or to a different address, or both;
provided, however, that a P.O. Box shall not be considered to be an
address for purposes of this Agreement.
23. ARBITRATION OF DISPUTES
(A) Any dispute arising out of this Agreement relating to Qwest
invoices or balances owed by Customer to Qwest for Services
rendered, which cannot be resolved between the Parties, shall be
settled by binding arbitration at the office of the American
Arbitration Association ("AAA") located in Washington, D.C.. The
arbitration shall be held in accordance with the commercial
Arbitration Rules of the American Arbitration Association ("AAA
Rules"), as amended by this Agreement.
(B) Either Qwest or the Customer may initiate arbitration by
providing written demand for arbitration, a copy of this
Agreement and the administrative fee required by the AAA Rules
to the AAA its Washington, D.C. office. A copy of the notice
shall also be provided to the other Party. The remaining cost of
the arbitration, including the fees and expenses of the
arbitrator, shall be shared equally by the Parties unless the
arbitration award provides otherwise. Each Party shall bear the
cost of preparing and presenting its case.
(C) One arbitrator shall be appointed in accordance with the AAA
Rules within sixty (60) days of the submission of the demand for
arbitration, unless both Parties otherwise agree in writing. The
arbitrator shall designate the time and place in the Washington,
D.C. metropolitan area, for the hearing within thirty (30) days
of his or her appointment. Qwest and the Customer agree that the
Arbitrator's authority to grant relief shall be subject to the
provisions of this Agreement, the United States Arbitration Act,
("USAA"), the ABA-AAA Code of Ethics for Arbitrators in
Commercial Disputes, Qwest Tariffs, substantive law, and the
Communications Act of 1934, as amended. The Arbitrator shall not
be able to award, nor shall any Party be entitled to receive
punitive, incidental, consequential, exemplary, reliance or
special damages, including damages for lost profits. The
Arbitrator's decision shall follow the plain meaning of the
relevant documents, and shall be final, binding, and enforceable
in a court of competent jurisdiction. The decision of the
Arbitrator is appealable only for perceived mistakes or
misapplication of the law.
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CARRIER SERVICE AGREEMENT
(D) Any dispute not outlined in Section 24(A) and arising out of or
related to this Agreement regardless of the form of action
whether in contract, indemnity, warranty, strict liability, or
tort, including negligence of any kind with regard to Qwest
Services or other conduct under this Agreement may be subject to
arbitration upon the written consent of both Parties.
24. ATTACHMENTS AND EXHIBITS
All Attachments and Exhibits annexed to this Agreement are expressly
made a part of this Agreement as fully as though completely set forth
in it. All references to this Agreement shall be deemed to refer to and
include this Agreement and all such Attachments and Exhibits.
25. HEADINGS
The headings of sections and subsections used in this Agreement are for
convenience only and are not part of its operative language. They shall
not be used to affect the construction of any provisions hereof.
26. THIRD-PARTIES
Except as otherwise provided herein, the representations, warranties,
covenants and agreements of the Parties set forth in this Agreement are
not intended for, nor shall they be for the benefit of or enforceable
by, any person not a party hereto, including, without limitation, the
End Users and Affiliates.
27. AUTHORIZATION
(a) Customer represents and warrants that the full legal name of the
Customer legal entity intended to receive the benefits under
this Agreement and intended to use the Services is the name set
forth in this Agreement and in the execution block. Each Party
represents to the other Party that the person executing this
Agreement on its behalf has been duly authorized by such Party
to execute and bind such Party to the terms and conditions
contained in this Agreement. Each Party, with full knowledge of
all terms and conditions herein, does hereby warrant and
represent that the execution, delivery, and performance of this
Agreement are within such Party's corporate and/or partnership
powers, have been duly authorized, and are not in conflict with
law or the terms of any charter or bylaw or any agreement to
which such Party is a party or by which it is bound or affected.
(b) Qwest may act in reliance upon any instruction, instrument, or
signature reasonably believed by Qwest to be genuine. Qwest may
assume that any employee of a party to this Agreement who gives
any written notice, request, or instruction has the authority to
do so.
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QWEST COMMUNICATIONS CORPORATION
CARRIER SERVICE AGREEMENT
IN WITNESS WHEREOF, an authorized representative of each Party has
executed this Agreement effective as of the date of execution by Qwest as set
forth below.
QWEST COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Date 29 April 1999
----------------------------------- -----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ORIX GLOBAL COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Date 12 April 1999
----------------------------------- -----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
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QWEST CONFIDENTIAL AND PROPRIETARY