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Exhibit 10.49
TELIC NETWORK SERVICES AGREEMENT
THIS AGREEMENT is made and entered into by and between TELIC COMMUNICATIONS,
INC. (hereinafter referred to as "TELIC"), a corporation organized and existing
under the laws of the State of Delaware, USA, with offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and the individual or entity identified
on the signature page of this Agreement as "CUSTOMER." Throughout this
Agreement, CUSTOMER and TELIC may be referred to individually as a "PARTY" or
collectively as the "PARTIES."
I. SCOPE OF AGREEMENT
This Agreement is intended to govern two transactions between the Parties. The
first transaction concerns the remote monitoring and trouble-shooting of the
IPVC Network. The second transaction relates to certain installation services to
be performed by Telic on behalf of Customer.
II. DEFINITIONS
Throughout this Agreement, the terms listed in Exhibit A shall have the
meanings set forth therein.
III. SERVICES
3.1 GENERAL
TELIC shall provide certain network monitoring, troubleshooting and installation
services to CUSTOMER in exchange for a various fees, as set forth in this
section.
3.2 NETWORK MONITORING AND TROUBLESHOOTING RESPONSIBILITIES OF TELIC
In addition to any other obligations of TELIC set forth in Agreement, TELIC
shall:
a. Perform 24x7 active monitoring of the IPVC network (including
gateways, LAN elements, serial WAN interfaces, bandwidth, PSTN lines,
and connection to the billing server);
b. Upon the occurrence of any problem with the IPVC network, immediately
work to resolve the problem to the reasonable satisfaction of the
Customer, remotely;
c. In the event that the problem is not able to be resolved by the Telic
Personnel, notify the appropriate vendor, employee of the Customer
and/or such other individuals as may be appropriate according to the
Escalation Procedure attached hereto as Exhibit B;
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d. In the event that the problem is the result of an error in the
operation of the gateway equipment, work with the Vendor's technical
support team in order to resolve the problem as expeditiously as
possible;
e. Maintain a log of the time of the problem encountered as well as any
action taken by Telic Personnel; this information will be available to
Customer on Telic's web-based trouble ticket system.
f. If the problem is not resolved in a timely (consistent with industry
standards) manner or the severity of the problem increases a
designated employee of Customer will be notified and a Telic Personnel
will work with all appropriate parties until resolution of the
problem.
3.3 RESPONSIBILITIES OF CUSTOMER WITH RESPECT TO NETWORK MONITORING
In addition to any other obligations of CUSTOMER set forth in Agreement,
CUSTOMER shall:
a. Prior to the Installation Date, provide an Escalation Procedure for
each Customer Facility. Said Escalation Procedure should specify the
personnel to be contacted and action to be taken in the event that a
problem arises concerning said Customer Facility;
b. CUSTOMER agrees to cooperate with TELIC in order to facilitate TELIC's
responsibilities under this Agreement.
3.4 INSTALLATION RESPONSIBILITIES OF TELIC
In addition to any other obligations of TELIC set forth in Agreement,
TELIC shall:
a. From time to time, TELIC shall install gateways at the Customer
Facility specified by Customer pursuant to Paragraph 3.5(a), below;
b. Prior to installation, TELIC shall receive and stage the gateways and
such other equipment as may be included in the installation, at its
headquarters;
c. Use its best efforts to meet CUSTOMER's requested Installation Date
d. After agreeing to a mutually acceptable installation date, Telic
Personnel shall travel to the Customer Facility to conduct the
installation of the System;
e. Make every reasonable effort to conclude the installation in one day;
provided that TELIC shall not be responsible for delays caused by
forces outside of its control, including without limitation,
malfunctioning Internet and/or carrier circuits;
f. Immediately upon completion of the installation, TELIC shall inform
CUSTOMER;
g. Upon receiving notice of the successful installation, CUSTOMER and
Telic Personnel shall jointly conduct an Acceptance Test in order to
confirm that the gateways have been installed properly;
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h. In the event that the installation is not successful, CUSTOMER shall
immediately notify TELIC, setting forth in detail the basis for said
failure. TELIC shall use its best efforts to correct any Defect in the
installation and thereafter confirm to CUSTOMER that such Defect has
been corrected;
i. CUSTOMER shall be deemed to have accepted the System upon:
i. CUSTOMER's notification to the Telic Personnel that the
installation was successful;
ii. In the event of a latent Defect in installation not readily
discernable on the date of installation, CUSTOMER's failure
to give TELIC written notice of the Defect not more than 30
business days after the Installation Date; or
iii. CUSTOMER's unreasonable failure to perform the Acceptance
Test on the date of installation.
3.5 RESPONSIBILITIES OF CUSTOMER WITH RESPECT TO INSTALLATION
a. Not less than 20 days prior to the desired installation date,
CUSTOMER shall send TELIC a written request in the form attached
hereto as Exhibit D;
b. Not less than 10 days prior to the requested Installation Date,
CUSTOMER shall provide TELIC with a fully completed Facility Survey in
the form attached hereto as Exhibit E.
c. unless otherwise agreed upon by the parties, CUSTOMER shall make all
arrangements for air travel, hotel and ground transportation, and
shall provide all relevant details of such to TELIC not less than 7
days prior to requested installation date.
3.6 PAYMENT
a. In consideration of TELIC's agreement to render the services stated
herein, CUSTOMER shall pay the fees specified in Exhibit C hereto.
b. In addition to payment of the fees in Exhibit C, CUSTOMER shall pay,
or reimburse TELIC for, all reasonable and necessary expenses incurred
by TELIC in the course of an installation including, but not limited
to, airfare, hotel and ground transportation.
c. Customer shall pay all costs of shipping and other costs and expenses
incurred by TELIC in delivery of the System to the Customer Facility.
d. In the case of network monitoring fees, payment shall be due in
advance; not later than the 5th day of the month for which service is
being rendered. In the case of installation services and expenses that
must be reimbursed by Customer to TELIC, payment shall be due and
payable not less than 30 days after the receipt by Customer of an
invoice from TELIC.
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3.7 NO WARRANTY ON EQUIPMENT
The Parties agree that all equipment being installed by TELIC under this
agreement is warranted by its respective manufacturer and that any defect in
such equipment is solely the responsibility of said manufacturer. TELIC makes
no warranty whatsoever, whether implied or otherwise, concerning the
merchantability of said equipment. TELIC's shall have no responsibility to
resolve or otherwise participate in any warranty disputes between Customer and
any manufacturer, other than to cooperate in the dissemination of information
concerning the problem to the extent that such information is in TELIC's
possession.
IV. GENERAL PROVISIONS
4.1 CONFIDENTIALITY
The Parties acknowledge that they may gain access to Confidential Information
of the other Party prior or subsequent to entering into this Agreement. Each
Party agrees that it (1) will not use Confidential Information for its own
benefit, (2) will keep Confidential Information secret at all times, and (3)
will not copy or modify Confidential Information, or any copy, adaptation,
transcription, or merged portion thereof, except as expressly authorized by the
other Party. Moreover, the Parties agree to limit disclosure of Confidential
Information to employees within each's own organization whom the other Party
could reasonably expect to have a legitimate need to receive such Confidential
Information.
4.2 ASSIGNMENT
TELIC may, from to time, use subcontractors to fulfill its obligations under
this Agreement. All work performed by TELIC's subcontractor(s) shall be deemed
work performed by TELIC. TELIC may assign monies due it under this Agreement so
long as: (a) TELIC shall given prior written notice to CUSTOMER of such
assignment, and (b) such assignment does not attempt to impose on CUSTOMER
obligations to the assignee additional to the payment of such monies, or to
preclude CUSTOMER from dealing solely and directly with TELIC in all matters
pertaining to this Agreement including the negotiation of amendments or
settlements of charges due.
4.3 FORCE MAJEURE AND EXCUSABLE DELAYS
a. Except as provided in Paragraph "b" of this Section:
i. Neither party shall be liable for any costs or damages
attributable to nonperformance (including delays on the part of
TELIC in performing services hereunder) arising out any "Event of
Force Majeure," which shall consist of any cause not within its
reasonable control and not due to its fault or negligence.
ii. Each party shall give the other party prompt notice of the
occurrence of any Event of Force Majeure that is expected to
cause delay hereunder, and the date of performance by any such
party shall be extended for a period not exceeding the period of
delay caused by the Event of Force Majeure identified in such
notice.
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b. Unless the performance by either party of its obligations under this
Agreement is delayed by the occurrence of an Event of Force Majeure
for a period of more than 90 days (and such delay is excused under the
foregoing provisions), no Event of Force Majeure shall excuse
permanent nonperformance, but shall excuse only delays in performance
and only to the extent that such delays are directly attributable to
such cause. Should any Event of Force Majeure delay performance for a
period of more than 90 days, either party may terminate and rescind
this Agreement upon 10 days prior written notice to the other party.
4.4 EFFECTIVITY
This Agreement shall commence on the date that TELIC receives a fully executed
original copy of the Agreement from CUSTOMER and payment of the first monthly
network monitoring fee.
4.5 TERMINATION
a. Unless sooner terminated in accordance with this Section, this
Agreement shall continue in effect for one (1) years and thereafter
shall automatically renew for successive renewal terms of one (1) year
each, unless and until either Party elects to terminate this Agreement
upon expiration of the (initial or renewal) term then in effect by
giving notice of its intention at least sixty (60) days prior to the
date of such expiration.
b. In addition to its termination rights set forth in Paragraph "a",
either Party may terminate this Agreement by giving written notice of
termination to the other upon the occurrence of any of the following
events:
i. The other Party defaults in the performance of any material
requirements or obligation created by this Agreement, any future
Equipment Purchase Agreement, any Maintenance Agreement, or any
other agreement between the Parties;
ii. The other Party fails to make any payment within thirty (30)
days of its due date, whether under this Agreement, any future
Equipment Purchase Agreement, any Maintenance Agreement, or
otherwise;
iii. Either Party ceases doing business or is the subject of any
state or federal bankruptcy, insolvency, or similar proceeding,
becomes insolvent, or makes an assignment for the benefit of
creditors; a receiver is appointed for a substantial part of
either Party's assets; either Party becomes unable to pay its
debts when due; any action is taken toward the liquidation or
winding up of either Party's business; an agreement between
either Party and its creditors generally is entered into
providing for extension or composition of either Party's debt; or
either Party suffers a materially adverse change in its financial
condition or operations.
c. No termination of this Agreement shall release CUSTOMER from any
obligation to pay TELIC any amount that has accrued or become payable
at or prior to the date of termination.
d. All communications from either Party relating to the termination of
this Agreement shall be directed to the other Party at the address
indicated in Section 4.6 of this Agreement.
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4.6 NOTICES
Any notice permitted or required under this Agreement shall be deemed given when
mailed by certified mail, postage prepaid, or when faxed (and followed by a
written confirmation mailed by certified mail, postage prepaid, within 24 hours
after such dispatch). Mail shall be addressed as stated below.
IF TO TELIC:
Telic Communications, Inc.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
IF TO CUSTOMER:
▇▇▇▇▇▇▇.▇▇▇, Inc.
Attn: ▇▇▇▇▇▇▇ Will, President
▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: 1-602-
4.7 LATE PAYMENT CHARGE; ATTORNEYS FEES
CUSTOMER shall be responsible to pay a latest payment charge on all Network
Service fees that remain unpaid thirty days after the Payment Period begins. The
late payment charge shall be in the amount of the lesser of (a) .075% per month
of the amount of the late payment starting from the day following the Payment
Period, or (b) the maximum amount allowed under applicable law. In the event
that it becomes necessary for TELIC to institute legal action in order to
collect any amount due from CUSTOMER, CUSTOMER shall be liable for all
reasonable and necessary costs incurred including, without limitation,
attorney's fees, filing costs, court costs and arbitration expenses.
4.8 CONSENT TO JURISDICTION
This agreement shall be governed by and construed in accordance with the laws of
the State of New York, USA, without regard to New York's choice of law rules.
Any arbitration, civil action, or other legal proceeding arising out of this
Agreement between CUSTOMER and TELIC or the officers, directors, employees, or
agents of either Party, whether brought before or after termination of this
Agreement, shall be brought and heard only in New York, USA. CUSTOMER consents
to jurisdiction in any court located in the State of New York in any legal
proceeding arising out of this Agreement.
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4.9 ARBITRATION
If a dispute arises out of or related to this Agreement or its breach, and the
parties have not been successful in resolving such dispute through negotiation,
the parties agree to attempt to resolve the dispute through mediation by
submitting the dispute to a sole mediator selected by the parties or, at any
time at the option of a party, to mediation by the American Arbitration
Association ("AAA"). Each party shall bear its own expenses and an equal share
of the expenses of the mediator and the fees of the AAA. The parties, their
representative, other participants and the mediator shall hold the existence,
content and result of the mediation in confidence. Subject to other provisions
of this Agreement, if a dispute is not resolved by mediation, the parties shall
have the right to resort to binding arbitration under the commercial arbitration
rules of American Arbitration Association. All defenses based on passage of time
shall be tolled pending the termination of mediation. Nothing in this article
shall be construed to preclude any party from seeking injunctive relief in order
to protect its rights pending arbitration. A request by a party to a court for
such injunctive relief shall not be deemed a waiver of the obligation to mediate
or arbitrate.
4.10 MISCELLANEOUS
a. Any document referred to in this Agreement and attached hereto as an
Exhibit at the time of execution shall be deemed an indispensable part of
this Agreement.
b. All dates and times referred to in this Agreement shall be Greenwich Mean
Time minus 5 hours.
c. The parties agree to deal with each other fairly and in good faith and to
perform all acts reasonably required to carry out the intent of this
agreement.
d. If any of the provisions of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations of
TELIC and CUSTOMER shall be construed and enforced accordingly.
e. Obligations under this Agreement which by their nature would continue
beyond the termination, cancellation or expiration of this Agreement,
including by way of illustration only and not limitation, CONTINUING
AVAILABILITY, WARRANTIES, REPAIRS NOT COVERED UNDER WARRANTY, REMEDY FOR
NON-PERFORMANCE, CONFIDENTIALITY and CONSENT TO JURISDICTION, shall survive
the termination of this Agreement.
f. The failure of either party at any time to enforce any right or remedy
available to it under this Agreement or otherwise with respect to any
breach or failure by the other party shall not be construed to be a waiver
of such right or remedy with respect to any other breach or failure by the
other party.
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V. AUTHORIZED SIGNATURES
Intending to be legally bound hereby, the Parties have caused this Agreement to
be executed in duplicate by their duty authorized corporate officers as of the
day and year written below.
[CUSTOMER]
TELIC COMMUNICATIONS, INC. ▇▇▇▇▇▇▇.▇▇▇, INC.
By: By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. Will
-------------------------- --------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ WILL
PRESIDENT PRESIDENT
Date: 5-25-2000 Date: 5-15-2000
Attest: Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- --------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CORPORATE SECRETARY Corporate Secretary
Date: Date: 5/16/00
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Exhibit A
DEFINITIONS
ACCEPTANCE TEST A test conducted by Customer to verify the success of
a new installation.
CONFIDENTIAL INFORMATION Any materials provided by one Party to the other with
reference to this Agreement including, without
limitation, scientific or technical information
concerning a design, process, procedure, formula, or
improvement that is commercially valuable and secret
(in the sense that its confidentiality affords a
competitive advantage to the owner). Confidential
Information excludes, however, any information that
(1) has been or is obtained by a Party from a source
independent of the other and not desiring such
information from the other, (2) is or becomes
generally available to the public other than as a
result of an unauthorized disclosure by the other or
its personnel, (3) is independently developed by a
Party without reliance in any way on any materials
provided by the other, (4) is approved for
unrestricted release by written authorization of the
owner, (5) is disclosed under operation of law, or (6)
is disclosed to a third-party with no duty of
confidentiality to the disclosor. "Materials" shall
mean all contracts, memoranda, notes, records,
drawings, manuals, disks, or other documents and
media, including all copies, extracts, and summaries
thereof, containing any Information provided with
reference to this Agreement.
CUSTOMER FACILITY The space, environment, and other facilities which are
to be provided by CUSTOMER in connection with the
installation, operation, or maintenance of the System.
CUSTOMER EMPLOYEE[S] All persons engaged from time to time by CUSTOMER as
its officers, employees, or agents or as independent
contractors.
DATE OF ACCEPTANCE The date on which CUSTOMER is deemed to have accepted
an installation as defined in Paragraph 3.4.
DEFECT Any failure of TELIC to perform an installation
successfully but specifically excluding errors caused
by faulty or malfunctioning equipment or carriers.
GATEWAYS Refers specifically to the VoIP gateway switching
equipment manufactured by Mockingbird Networks or
▇▇▇▇▇▇▇▇▇▇.▇▇▇ and deployed by CUSTOMERs in a Customer
Facility.
INSTALLATION DATE The date of installation as specified in CUSTOMER's
installation request form, as set forth in Exhibit D.
IPVC NETWORK The Gateways and other networking equipment comprising
CUSTOMER's network.
PAYMENT PERIOD The period of time specified in Paragraph 3.6(d)
beginning on the date that a fee becomes due and
payable.
TELIC PERSONNEL All persons engaged from time to time by TELIC as its
officers, employees, or agents or as independent
contractors.
VENDOR Refers to the manufacturer of Gateways deployed in the
IPVC Network - either ▇▇▇▇▇▇▇▇▇▇.▇▇▇ or Mockingbird
Networks.
Partner Initials:
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EXHIBIT B
ESCALATION PROCEDURE
Partner Initials:
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EXHIBIT C
FEES
a. INSTALLATION FEE:
$800 per day
b. NETWORK MONITORING FEE:
$5,400 per Customer Facility per annum, payable in 12 equal monthly
installments.
Partner Initials:
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EXHIBIT D
INSTALLATION REQUEST
Requested Installation Date: ______________________________________________
Anticipated Number of Days: _______________________________________________
Full Address of Customer Facility: ________________________________________
Partner Initials:
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EXHIBIT E
CUSTOMER FACILITY SURVEY
I. ADDRESS OF PARTNER FACILITY:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
II. SYSTEM INFORMATION:
a. Description of the gateway to be installed (eg. Number and type of
circuits):
--------------------------------------------------------------------------------
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b. How many of each PSTN interface will you interconnect with?
------ Analog
------ T1 Feature - Group D
------ T1 FXS
------ T1 E & M Wink Start
------ T1 SS7
------ T1 ISDN
------ ▇▇ ▇▇
------ ▇▇ C7
------ E1 Euro-ISDN
------ Other; Please Specify: -----------------------------------
Partner Initials:
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c. Please specify line connector/cable to PSTN for each of the above circuits:
------- RJ-11 (Analog)
------- RJ-45 - T1/E1
------- DB-9 -T1/E1
------- BNC-Coax-E1 75R
d. How will the Internet connectivity be delivered:
------- Ethernet
------- Serial connection (if serial, please describe make of DSU unit below:
-------------------------------------------------------------------------------
e. What is the Bandwidth of the Internet circuit?
-------- Kbps/Mbps
f. What carrier will provide the local loop for the Internet circuit?
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Provisioning Contact Info:
-----------------------------------------------------
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Escalation Contact Info:
--------------------------------------------------------
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g. What ISP will provide Internet Connectivity?
-------------------------------------------------------------------------
Provisioning Contact Info:
-----------------------------------------------------
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Escalation Contact Info:
--------------------------------------------------------
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h. IP Addresses Information:
Gateway[s] (list four dedicated IP addresses for each T1/E1 port):
--------------------------------------------------------------------------------
DNS:
---------------------------------
Partner Initials:
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Secondary DNS: __________________________
Router: __________________________
Switch/Hub: __________________________
Subnet Mask: __________________________
Digi Server: __________________________
Power Server: __________________________
Provisioning Contact Info: _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Escalation Contact Info: _______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
i. Please provide as much information as possible regarding the PSTN switch of
the each carrier you will interconnect with (including manufacturer, model
and software build).
________________________________________________________________________________
________________________________________________________________________________
j. What type Power Supply will you provide at the Partner facility?
______ 110 AC
______ 220 AC
______ 48 Volt DC
______ Other; Please Specify: _________________________________________________
k. Is there UPS available at the facility?
______ Yes; Please Specify: _____________________________
______ No
l. Is there EPS available at the facility?
______ Yes; Please Specify: _____________________________
______ No
m. When will the site be ready for the installation of the System?
________________________________________________________________________________
Partners Initials: