EXHIBIT 10.12
CARRIER SERVICE AGREEMENT
-------------------------
This Service Agreement ("Agreement") is made as of the 7th day of
September, 1999 ("Effective Date"), by and between NetVoice Technologies,
Inc. (NVT), with its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and ValuLine Inc., with its principal office at ▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof;
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications services
set forth in Exhibit A and Exhibit B to this Agreement, at the rates
set forth therein and subject to the terms and conditions contained in
this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Date
and will continue for a period of one (1) year. After the initial
term, this Agreement shall automatically be renewed for additional
successive one (1) year terms unless either party shall give to the
other not less than sixty (60) days written notice of termination
prior to the expiration date of the then - current term.
3. CHARGES AND PAYMENT.
3.1 All Usage Charges for services provided by NVT under this
Agreement are set forth in Exhibit A, which charges are subject
to change as hereinafter provided.
3.2 Usage Charges and other charges for services provided under this
Agreement shall be billed weekly (Monday to Sunday) and the
undisputed amount shall be paid by CUSTOMER to NVT, without
demand or setoff, within 3 days after the date of the NVT
invoice. NTVT reserves the right to cancel services immediately
if a disagreement arises on any disputed amounts.
3.3 Any undisputed amount not received by NVT on the due date
specified above will be deemed past due. Any past due amounts are
subject to a late charge in the amount of one and one-half
percent (1.5%) per month compounded monthly, or the maximum rate
allowed by law, whichever is less, from the due date until
payment is received by NVT.
3.4 In case the CUSTOMER disputes any billing of NVT, CUSTOMER must
pay the full undisputed amount within the time frames set forth
in Section 3.2. A description of the disputed billing must be
delivered to NVT in writing within 10 days of the invoice, and
Customer will set aside the disputed amount in a separate account
for up to 30 days while the Parties attempt to resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least 15
(fifteen) days prior notice to CUSTOMER,
1
provided CUSTOMER may elect to terminate this Agreement without
penalty in the event of any such increase. In order to exercise
such election to terminate, CUSTOMER must give NVT written notice
of such election within (15) days after the date of the notice of
increase from NVT.
3.6 NVT may require Customer to make a Deposit or an Advance Payment
or both to be held as a guarantee for the payment of charges. The
Deposit or Advance Payment shall not exceed an amount equal to
one month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills on
presentation.
In the event of cancellation, the Deposit will be applied toward
the Customer's final ▇▇▇▇ and any remainder will be returned to
the Customer within 90 days after the service has been disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains current.
In no event shall NVT be liable for any taxes due by CUSTOMER and
CUSTOMER hereby indemnifies NVT against any such claims for taxes by
any tax in authority or party acting on behalf of such taxing authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING
FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE
CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless NVT,
its affiliates, their respective officers, directors, shareholders,
employees, agents, successors and assigns, and each of them, from and
against any and all damages, losses, claims, liabilities, demands,
charges, suits, penalties, costs of expenses, whether accrued,
absolute, contingent or otherwise, including but not limited to court
costs and attorney's fees, which any of the foregoing may incur or to
which any of the foregoing may be subjected, arising out of or
otherwise based upon any of the following:
6.1 Any breach or default by CUSTOMER under any of the provisions of
this Agreement or of any other agreement or instrument to which
NVT or an affiliate is a party or which is in favor of NVT or an
affiliate of NVT;
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service ▇▇▇▇ arising out of material, data,
information, or other content transmitted by CUSTOMER over NVT's
networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
2
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance is
corrected (provided NVT shall not be prohibited from terminating this
Agreement after suspending service); (ii) declare all charges that
have been billed to CUSTOMER by NVT to be immediately due and payable,
whereupon all such amounts shall become immediately due and payable;
or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in equity,
in the event CUSTOMER or any affiliate of CUSTOMER breaches any
provision of any other agreement or instrument with or in favor of NVT
or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request
of the United States government or of any government (including
without limitation, state and local governments having jurisdiction
over any of the parties) or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
of such governments, or of any civil or military authority; national
emergencies; insurrection; riots; wars; strikes, lockouts, work
stoppage or other such labor difficulties; or any act or omission of
any other person or entity.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance or
transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
3
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or to
exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any term,
condition or remedy of or under this Agreement, and this Agreement and
each of its provision shall remain at all times in full force and
effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
If to CUSTOMER: ValuLine Inc.
----------------------------------
▇▇ ▇▇▇ ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
----------------------------------
----------------------------------
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant, or
condition to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected by such
determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience and
reference only and do not affect or limit the interpretation, contents
or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE
COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR OTHER
MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each of
such counterparts shall, for all purposes, be deemed to be an original
but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any
4
rights in, or be deemed to have been executed for the benefit of, any
person or entity that is not a party hereto or a successor or
permitted assign of a party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition that
the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous agreements,
whether written or oral, between NVT and CUSTOMER. No waiver,
alteration or modification of any of the provisions of this Agreement,
shall be binding unless in writing and signed by a duly authorized
representative of the parties; provided, however, that only written
notice to CUSTOMER is required to increase service rates in accordance
with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s By: /s/
----------------------------- ----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
--------------------------
(Print Name)
Title: President Title:
--------------------------
Date: Date:
--------------------------- --------------------------
5
EXHIBIT A
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate/originate telecommunications received from Customer by
means of a DS1/DS3 interconnection at one of NVT's points of presence.
Calls may be terminated/originated locally, i.e., to/from the NPA/NXX
numbers associated with that point of presence ("Local
Termination/Origination"), and terminated in/originated from other cities
in which NVT has a point of presence ("on-net cities"). NVT's on-net
cities are listed on Exhibit B. The following charges will apply:
LOCAL TERMINATION TO ONNET CITIES:
$.018 per minute billed with 6 second minimum and 6 second increments.
LOCAL ORIGINATION FROM ONNET CITIES:
$.018 per minute billed with 6 second minimum and 6 second increments.
NetVoice Technologies, Inc. CUSTOMER
By: /s By: /s/
----------------------------- ----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Name:
--------------------------
6
EXHIBIT B
----------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION/ORIGINATION SERVICE
-------------------------------
NPA/NXX LISTINGS AVAILABLE
--------------------------
Dallas Ft. Worth
Houston Austin
San Antonio El Paso
Oklahoma City Tulsa
Atlanta New Orleans
Denver Kansas City
Orlando Tampa
Miami/Ft. Lauderdale Jacksonville
Little Rock Albuquerque
Portland Phoenix
Chicago (10/99) New York (10/99)
Los Angeles (11/99)
7