EXHIBIT 10.6
CARRIER SERVICE AGREEMENT
This CARRIER SERVICE AGREEMENT (the "Agreement"), dated as of Oct.
8, 1999, by and between NetVoice Tech, a Nevada corporation ("Company"),
located at 00000 Xxxxxxxx Xx., Xxxxx 000, Xxxxxx, XX 00000 and IDT
Corporation, a Delaware corporation ("Customer"), located at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000, sets forth the terms and
conditions upon which Company shall provide and Customer shall purchase
the wholesale telecommunications services set forth below. In
consideration of the mutual covenants contained in this Agreement and
intending to be legally bound, the parties (individually "Party" and
collectively the "Parties") agree as follows:
ARTICLE 1
PROVISION OF SERVICES
1.1 PURCHASE AND SALE OF SERVICES Company agrees to provide wholesale
telecommunication services (the "Services") at the rate set forth in the
attached exhibit(s) (the "Exhibits") and more fully described herein.
Customer will deliver its calls or other enhanced services to Company's
switching site(s) at its own expense. Customer will interconnect with
Company via dedicated 1.544 megabyte circuits ("DS1") at Company's
switching site(s). All rates set forth in the Exhibits are for services
offered free on board ("f.o.b.") the designated switching site(s) set
forth therein, and include the cost to terminate the calls or other
services on their destination, unless otherwise stipulated or specified.
Company reserves the right to adjust its rates and charges upon thirty
(30) days prior written notice to Customer. Customer shall have the
right to terminate this Agreement upon receipt of such notice without
further obligation or penalty. International rates are determined on a
per country basis as set forth in the Exhibits attached hereto.
International rates are shown in terms of full minutes and are billed in
six (6) second increments after the initial thirty (30) second call
duration with the exception of calls to Mexico which are billed in sixty
(60) second increments with a minimum call duration of sixty (60)
seconds. Availability of Services is dependent upon the availability of
________ within each country. Company may offer rate decreases or
additional services effective immediately upon written notice to Customer.
1.2 SYSTEM MAINTENANCE Company will use its best efforts to ensure that
all systems utilized hereunder will be maintained in accordance with
industry standards. In the event that system maintenance requires the
interruption of Service, Company shall notify Customer of such
interruption in Service at least forty-eight (48) hours in advance of
such interruption and Company shall use its best efforts to repair the
system and rectify the problem within a reasonable period of time.
Customer reserves the right to terminate this Agreement in its sole
discretion if quality of service falls below industry standards.
1.3 LICENSES Each Party is responsible for obtaining and maintaining, at
its own cost, all licenses, approvals and other authorizations necessary
or appropriate for the provision and/or resale of Services.
ARTICLE II
PAYMENT TERMS
2.1 SERVICES Company shall invoice Customer for all charges for Services
on a weekly basis every Monday. All undisputed amounts stated on each
invoice will be due within three (3) business days of receipt of the
invoice (the "Due Date") via wire transfer. All payments under this
Agreement will be made in U.S. dollars via wire transfer. In no event
shall the liability of Customer exceed the undisputed amount payable
hereunder for Services rendered.
2.2 TAXES All Services under this Agreement are provided exclusive of
any applicable federal, state, local, or foreign taxes, duties, or
charges imposed by any governmental authority.
2.3 DISPUTED CHARGES All undisputed amounts must be paid in full by the
Due Date. In the event Customer disputes any amount stated on an
invoice, Customer shall notify Company in writing of such
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dispute within forty five (45) days of receipt of the applicable invoice
and shall provide Company with such documentation as may be reasonably
required to receive the dispute. Customer and Company will exercise
reasonable, good faith efforts to resolve the disputed charges within
forth five (45) days of receipt of Customer's written notice of the
dispute. In the event the parties are unable to resolve the dispute
within such time, the matter shall be escalated to senior executives
and/or counsel authorized to settle such matters. If the dispute is not
resolved within forty-five (45) days from the date of escalation, the
parties are entitled to their remedies at law.
2.4 LATE FEES Any payments not received by the Due Date will bear
interest at a rate of one percent (1%) per month from the Due Date until
paid in full.
ARTICLE III
TERM AND TERMINATION
3.1 TERM This Agreement will commence on the date first written above
and will continue for a period of one (1) year (the "Initial Term").
This Agreement shall automatically continue beyond the Initial Term on a
month-to-month basis unless terminated by either Party upon thirty (30)
days prior written notice.
3.2 TERMINATION This Agreement will terminate prior to the expiration of
the then-current term upon the happening of any of the following events:
3.2.1 A material breach of this written Agreement by either Party
and the breaching Party fails to cure the breach within thirty (30)
calendar days after written notice of the breach from the non-breaching
Party, unless a breach under 2.1 in which Company may terminate upon
three (3) days written notice.
3.2.2 Either Party voluntarily files a bankruptcy petition, or if
such Party makes an assignment for the benefit of creditors, or
consents to or acquires in the appointment of a trustee, receiver,
or liquidator of it or of all or any substantial part of its assets
and properties, or takes or suffers similar action in consequence of
indebtedness.
3.2.3 A petition in bankruptcy is filed against either Party or,
without the Party's consent or acquiescence, a trustee, receiver or
liquidator of it or of all or any substantial part of its assets and
properties is appointed and such condition is not dismissed or
vacated within thirty (30) days thereunder.
3.2.4 If, in Customer's reasonable and sole discretion, the
Services are not of a quality consistent with industry standards or
if Company interrupts Service and fails to restore or maintain its
network in accordance with paragraph 1.2 above.
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNITY The Parties shall indemnify, defend, release and hold
harmless such other and all of their officers, agents, directors,
shareholders, subcontractors, subsidiaries, employees and other
affiliates (collectively "Affiliates") from and against any action,
claim, court cost, damage, demand, expense, liability, loss, penalty,
proceeding, suit, cost or attorney's fees imposed upon either Party by
reason of damages to property or bodily injuries, including death, as a
result of an intentional or negligent act or omission on the part of
either Party or any of its Affiliates in connection with the performance
of this Agreement or other activities relating to the property and/or
facilities which are the subject of this Agreement. The Parties hereby
indemnify and hold harmless each other from any claims by any of its
customers, and users or subscribers.
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ARTICLE V
CONFIDENTIALITY
5.1 CONFIDENTIALITY The Parties hereto hereby acknowledge that during
the course of this Agreement, either Party may acquire information
regarding the other or its affiliates, its business activities and
operations or those of its customers and suppliers, and its trade secrets
including without limitation its customer lists, prospective customers,
rates, network, configuration, traffic volume, financial information,
computer software, service, processors, methods, knowledge, research,
development or other information of a confidential and proprietary nature
(hereinafter "Confidential Information"). Each Party shall hold such
information in strict confidence and shall not reveal the same, except
for any information which is: (a) generally available to or known to the
public; (b) known to such Party prior to the negotiations binding to this
Agreement; (c)independently developed by such Party outside the scope of
this Agreement; or (d) lawfully disclosed by or to a third party or
tribunal. The recipient of the Confidential Information may disclose the
Confidential Information pursuant to any judicial or governmental
request, requirement or order provided, however, the recipient takes all
reasonable steps to provide prompt and sufficient notice to the
disclosing Party so that the disclosing Party may contest such request,
requirement or order. The Confidential Information or each Party shall
be safeguarded by the other to the same extent that it safeguards its own
confidential materials or data relating to its own business.
ARTICLE VI
MISCELLANEOUS
6.1 USE OF NAME Each Party agrees that, without the other Party's
written consent. It will not use the names, service marks or trademarks
of the other Party or of any of its affiliated companies in any
advertising, publicity releases or sales presentations. Each Party
agrees it will not take any actions which will to any manner compromise
the registered trademarks and/or service marks of the other Party or its
affiliates.
6.2 LIMITATION OF LIABILITY COMPANY'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. COMPANY WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. COMPANY
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 COMPANY.
6.3 FORCE MAJEURE Notwithstanding anything to the contrary herein,
COMPANY 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 COMPANY'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
governance, or of any civil or military authority; national emergencies;
___________; riots; wars; strikes; lockouts; work stoppage or other such
labor difficulties; or any act or omission of any other person or entity.
If an event of force majeure continues for a period of thirty (30) days
or more either party may terminate this Agreement.
6.4 TAX EXEMPTION CERTIFICATE Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such exemption
information to COMPANY upon reasonable request. It will be the
responsibility of CUSTOMER to make sure that its proof of exemption
remains current. In no event shall COMPANY be liable for any taxes due
by CUSTOMER and CUSTOMER hereby indemnifies COMPANY against any such
claims for taxes by any tax in authority or party acting on behalf of
such taxing authority.
6.5 REGULATORY CHANGES In the event of any regulatory, judicial, or
legislative body having jurisdiction over
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the way in which services referenced herein are provided, materially
changes the scope, terms, or operating conditions of this agreement,
either company may terminate this agreement in its sole election without
penalty.
6.6 INDEPENDENT CONTRACTORS It is expressly understood that the Parties
hereto are acting hereunder as independent contractors and under no
circumstances shall any of the employees of one Party be deemed to be
employees of the other for any purpose. This Agreement shall not be
construed as authority for either Party to act on behalf of the other in
any agency or other capacity or to make commitments of any kind for the
account of or on behalf of the other Party except to the extent and for
the purposes expressly provided for and set forth herein.
6.7 WAIVER The failure of either Party to give notice of default or to
enforce compliance with any of the terms or conditions of this Agreement,
the waiver of any term or condition of this Agreement, or the granting of
an extension of time for performance, will not constitute a permanent
waiver of any term or condition of this Agreement, and this Agreement and
each of its provisions will remain at all times in full force and effect
until modified by both Parties in writing.
6.8 AMENDMENTS AND MODIFICATIONS This Agreement shall not be valid until
signed and adopted by a signatory duly authorized to legally bind the
Parties hereto. No change, amendment, modification, termination or
attempted waiver of any of the provisions set forth herein in shall be
binding unless made in writing and signed by a duly authorized
representative of both Parties hereto, and no representation, promise,
inducement or statement of intention has been made by either Party which
is not embodied herein.
6.9 ASSIGNMENT Neither Party will assign this Agreement or any rights
under this Agreement without the prior written consent of the other
Party, which consent will not be unreasonably denied or withheld, except
that each Party may assign or transfer this Agreement, in whole or in
part, to any of its affiliates or to any wholly owned subsidiary without
the consent of the other Party. Subject to the foregoing, this Agreement
will be binding upon and inure to the benefit of the Parties hereto and
their respective successors or assigns.
6.10 NOTICES Any notices, approval, request, authorization, direction or
other communication under this Agreement will be given in writing and
will be deemed to have been delivered and given for all purposes upon
receipt only when mailed first class mail or by nationally recognized
overnight courier service, duly addressed and with proper postage, to he
address set forth below or such other address as may be provided by the
other Party in writing for the purpose of receiving such notice. Either
Party may change its address specified above by giving the other Party
notice of such change in accordance with this paragraph. All notices
required under this Agreement shall be addressed as follows:
If to Company: NetVoice Technologies, Inc.
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00000 Xxxxxxxx Xxxxx
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Suite 250
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Xxxxxx, XX 00000
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Attn: Xxxxx Xxxx
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If to Customer: IDT Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Mr. Xxxxxxxx _________________
with a copy to the General Counsel of Company at the
same address above
6.11 JURISDICTION This Agreement and the relationship between the
Parties hereto will be governed by the laws of the State of New Jersey.
Both Parties consent to said jurisdiction and venue in the courts of New
Jersey.
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6.12 SEVERABILITY In the event a court of competent jurisdiction
determines that any part or provision of this Agreement is invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other part or provision of this Agreement.
6.13 HEADINGS The article and paragraph headings used herein are for
reference purpose only, and shall not in any way affect the meaning or
interpretation of this Agreement and the terms and provisions herein.
6.14 COUNTERPARTS This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which taken together
will constitute one and the same instrument.
6.15 NON-EXCLUSIVITY Nothing in this Agreement will prevent Company or
Customer from entering into similar arrangements with any other person or
entity.
6.16 ENTIRE AGREEMENT This Agreement, including any exhibits attached
hereto, sets forth the entire agreement and understanding of the Parties
hereto and supersedes and ______ any and all prior proposals,
negotiations, representations, agreements, arrangements or
understandings, both oral and written, relating to the subject matter
hereof. The Parties hereto have not relied on any proposal, negotiation
or representation, whether written or oral, that is not expressly set
forth herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
Company Customer
/s/ XXXXX XXXX /s/ XXXXXXXX _______
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By: Xxxxx Xxxx By: Xxxxxxxx _______
Title: CFO Title: Senior Vice President - Telecom
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