1
EXHIBIT - 10.29
TELECOMMUNICATIONS SERVICES AGREEMENT
-------------------------------------
This TELECOMMUNICATIONS SERVICES AGREEMENT (THE "AGREEMENT" OR THE "TSA")
is entered into as of the 14th day of July, 1997, by and between WORLDCOM
NETWORK SERVICES, INC. d/b/a WILTEL, a Delaware corporation, with its principal
office at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("WILTEL") and TELEHUB
COMMUNICATIONS CORP. a Illinios corporation, with its principal office at 0000
Xxx-Xxxxx Xxxx, Xxxxxx, XX 00000 ("CUSTOMER").
WITNESSETH:
WilTel agrees to provide and Customer agrees to accept switched
telecommunications services and other associated services (COLLECTIVELY THE
"SERVICES"), (i) as described in the Service Schedules identified herewith, (ii)
subject to the terms and conditions contained in this Agreement, including
without limitation those terms and conditions contained in the Program
Enrollment Term ("PET") which are attached hereto and incorporated herein by
reference, and (iii) in conformity with each Service Request (described below)
which is accepted hereunder.
In the event of a conflict between the terms of this Agreement, the PET,
the Service Schedule and the Service Request(s), the following order of
precedence will prevail: (1) PET, (2) Service Schedule, (3) this Agreement, and
(4) Service Request(s).
NOW, THEREFORE, in consideration of the above premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Service Term.
------------
(A) Effective Date This Agreement shall commence as of the Effective Date
as described in the PET and shall continue for the period of time set forth
in the PET (THE "SERVICE TERM"). Upon the expiration of the Service Term,
the Service in question will continue to be provided subject to termination
by either party upon thirty (30) days prior written notice to the other
party. Customer shall be liable for all charges associated with actual
usage of the Services in question during the Service Term and any extension
thereof.
(D) PET The PET, as subscribed to by the parties, shall set forth the
Discount Schedule applicable to charges for Switched Services due under
this Agreement, Customer's minimum monthly commitment, if any, and other
information necessary to provide Services under this Agreement.
2
(C) Start of Service WilTel's obligation to provide and Customer's
obligation to accept and pay for non-usage sensitive charges for Services
shall be binding to the extent provided for in this Agreement upon the
submission of an acceptable Service Request to WilTel by Customer.
Customer's obligation to pay for usage sensitive charges for Switched
Services shall commence with respect to any Service as of the earlier of
(i) the "Requested Service Dates" set forth in each Service Request, or
(ii) the date the Service in question is made available to Customer and
used ("START OF SERVICE"). Start of Service for particular Services shall
be further described in the Service Schedule relevant to the Switched
Services in question.
(D) Service Schedules Services to be provided under this Agreement shall
be described in the WilTel Service Schedule which is subscribed to by an
authorized representative of WilTel and Customer (the "SERVICE SCHEDULE").
The Service Schedule shall become a part of this Agreement to the extent
that it describes the particular Services therefor, specific terms and
other information necessary or appropriate for WilTel to provide such
Service to Customer.
(E) Service Requests Customer's requests to initiate or cancel Services
shall be described in an appropriate WilTel Service Request ("SERVICE
REQUEST"). Service Requests may consist of machine readable tapes,
facsimiles or other means approved by WilTel. Further, Service Requests
shall specify all reasonable information, as determined by WilTel,
necessary or appropriate for WilTel to provide the Service(s) in question,
which shall include without limitation, the type, quantity and end point(s)
(when necessary) of circuits comprising a Service Interconnection as
described in the applicable Service Schedules, or automatic number
identification ("ANI") information relevant to the Service(s), the
Requested Service Date, and charges, if any, relevant to the Services
described in the Service Request. After WilTel's receipt and verification
of a valid Service Request for SWITCHED Service (as defined in the Service
Schedule) requiring a change in the primary interexchange carrier ("PIC"),
WilTel agrees to (i) submit the ANI(s) relevant to such Service Requests
to the following local exchange carriers ("LECs") (with which WilTel
currently has electronic interface capabilities) within ten (10) days:
Ameritech, Xxxx Atlantic, BellSouth, Nynex, Pacific Xxxx, Southwestern
Xxxx, US West, GTE and United, and (ii) submit the ANI(s) relevant to such
Service Requests to those LECs with which WilTel does not have electronic
interface capabilities within a reasonable time.
2. CANCELLATION.
------------
3
(A) Cancellation Charge At any time after the Effective Date, Customer
may cancel this Agreement if Customer provides written notification thereof
to WilTel not less than thirty (30) days prior to the effective date of
cancellation. In such case (or in the event WilTel terminates this
Agreement as provided in Section 8), Customer shall pay to WilTel all
charges for Services provided through the effective date of such
cancellation plus a cancellation charge (the "Cancellation Charge") equal
to one hundred percent (100%) of Customer's commitment(s), if any, (as
described in the PET) that would have become due for the unexpired portion
of the Service Term.
(B) Liquidated Damages It is agreed that WilTel's damages in the event
Customer cancels this Agreement shall be difficult or impossible to
ascertain. The provision for a cancellation charge in Subsection 2(A) above
is intended, therefore, to establish liquidated damages in the event of a
cancellation and is not intended as a penalty.
(C) Cancellation Without Charge Notwithstanding anything to the contrary
contained in Subsection 2(A) above, Customer may cancel this Agreement
without incurring any cancellation charge if (i) WilTel fails to provide a
network as warranted in Section 9 below; (ii) WilTel fails to deliver call
detail records promptly based on the frequency selected by Customer (i.e.,
monthly, weekly or daily); or (iii) WilTel fails to submit ANI(s) relevant
to such Service Requests to the LECs within the time period described in
Subsection 1(E) above. Provided, however, Customer must give WilTel written
notice of any such default and an opportunity to cure such default within
five (5) days of the notice. In the event WilTel fails to cure any such
default within the five-day period on more than three (3) occasions within
any six (6) month period, Customer may cancel this Agreement without
incurring any cancellation charge.
3. CUSTOMER'S END USERS.
--------------------
(A) End Users Customer will obtain and upon WilTel's request provide
WilTel (within two (2) business days of the date of the request) a written
Letter of Agency ("LOA") acceptable to WilTel (or with any other means
approved by the Federal Communications Commission ("FCC"), for each ANI
indicating the consent of the end users of Customer ("End Users") to be
served by Customer and transferred (by way of change of such End Users
designated PIC) to the WilTel network prior to order processing. Each LOA
will provide, among other things, that the End users have consented to the
transfer being performed by Customer or Customer's designee. When
applicable, customer will be responsible for notifying End
4
Users, in writing (or by any other means approved by the FCC) that (i) a
transfer charge will be reflected on their LEC xxxx for effecting a change
in their primary interexchange carrier ("PIC"), (ii) the entity name under
which their interstate, intrastate and/or operator services will be billed
(if different from Customer), and (iii) the "primary" telephone number(s)
to be used for maintenance and questions concerning their long distance
service and/or billing. Customer agrees to send WilTel a copy of the
documentation Customer uses to satisfy the above requirements promptly upon
request of WilTel. WilTel may change the foregoing requirements for
Customer's confirming orders and/or for notifying End Users regarding the
transfer charge at any time in order to conform with applicable FCC and
state regulations. Provided, however, Customer will be solely responsible
for ensuring that the transfer of End Users to the WilTel network conforms
with applicable FCC and state regulations, including without limitation,
the regulations established by the FCC with respect to verification of
orders for long distance service generated by telemarketing as promulgated
in 47 C.F.R., Part 64, Subpart K, Section 64.1100 or any successor
regulation(s).
(B) Transfer Charges/Disputed Transfers Customer agrees that it is
responsible for (i) all charges incurred by WilTel to change the PIC of End
Users to the WilTel network, (ii) all charges incurred by WilTel to change
End Users back to their previous PIC arising from disputed transfers to the
WilTel network plus an administrative charge equal to twenty percent (20%)
of such charges, and (iii) any other damages suffered by or awards against
WilTel resulting from disputed transfers.
(C) Excluded ANIs WilTel has the right to reject any ANI supplied by
Customer for any of the following reasons: (i) WilTel is not authorized to
provide or does not provide long distance services in the particular
jurisdiction in which the ANI is located, (ii) a particular ANI submitted
by Customer is not in proper form, (iii) Customer is not certified to
provide long distance services in the jurisdiction in which the ANI is
located, (iv) customer is in default of this Agreement, (v) Customer fails
to cooperate with WilTel in implementing reasonable verification processes
determined by WilTel to be necessary or appropriate in the conduct of
business, or (vi) any other circumstance reasonably determined by WilTel
which could adversely affect WilTel's performance under this Agreement or
WilTel's general ability to transfer its other customers or other end users
to the WilTel network, including without limitation, WilTel's ability to
electronically effect PIC changes with the LECs. In the event WilTel
rejects an ANI, WilTel will notify Customer as soon as possible of its
decision specifically describing the rejected ANI and the reason(s) for
rejecting that
5
ANI, and will not incur any further liability under this Agreement with
regard to that ANI. Further, any ANI requested by Customer for Switched
Services may be deactivated by WilTel if no Switched Services xxxxxxxx
relevant thereto are generated in any three (3) consecutive calendar
month/billing periods. WilTel will be under no obligation to accept ANIs
within the three (3) full calendar month period preceding the scheduled
expiration of the Service Term.
(D) Records Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Switched Services, including, but not
limited to, appropriate and valid LOAs from End Users for a period of not
less than (twelve) 12 months or such other longer period as may be required
by applicable law, rule or regulation. Customer shall indemnify WilTel for
any costs, charges or expenses incurred by WilTel arising from disputed PIC
selections involving Switched Services to be provided to Customer for which
Customer cannot produce an appropriate LOA relevant to the ANI and PIC
charge in question, or when WilTel is not reasonably satisfied that the
validity of a disputed LOA has been resolved.
(E) Customer Service Customer will be solely responsible for billing the
End Users and providing the End Users with customer service. Customer
agrees to immediately notify WilTel in the event an End User notifies
Customer of problems associated with the Services, including without
limitation, excess noise, echo, or loss of Service.
4. CUSTOMER'S RESPONSIBILITIES.
---------------------------
(A) Expedite Charges In the event Customer requests expedited Services
and/or changes to Service Orders and WilTel agrees to such request, WilTel
will pass through the charges assessed by any supplying parties (e.g.,
local access providers) for such expedited charges and/or changes to
Service Orders involved at the same rate to Customer. WilTel may further
condition its performance of such request upon Customer's payment of such
additional charges to WilTel.
(B) Fraudulent Calls Customer shall indemnify and hold WilTel harmless
from all costs, expenses, claims or actions arising from fraudulent calls
of any nature which may comprise a portion of the Services to the extent
that the party claiming the call(s) in question to be fraudulent is (or had
been at the time of the call) an End User of the Services through Customer
or an End User of the Services through Customer's distribution channels.
Customer shall not be excused from paying WilTel for Services provided to
Customer or any portion thereof on the basis that
6
fraudulent calls comprised a corresponding portion of the Services. In the
event WilTel discovers fraudulent calls being made (or reasonably believes
fraudulent calls are being made), nothing contained herein shall prohibit
WilTel from taking immediate action (without notice to Customer) that is
reasonably necessary to prevent such fraudulent calls from taking place,
including without limitation, denying Services to particular ANIs or
terminating Services to or from specific locations.
5. CHARGES AND PAYMENT TERMS.
-------------------------
(A) Payment WilTel xxxxxxxx for Services hereunder are made on a monthly
basis (or such other basis as may be mutually agreed to by the parties)
following Start of Service. Subject to Subsection 5(D) below, Services
shall be billed at the rates set forth in the PET and Service Requests, as
the case may be. Discounts, if any, applicable to the rates for certain
Services are set forth in the PET. Customer will pay all undisputed charges
relative to each WilTel invoice for Services within thirty (30) days of the
invoice date set forth on each WilTel invoice to Customer ("DUE DATE"). If
payment is not received by WilTel on or before the Due Date, Customer shall
also pay a late fee in the amount of the lesser of one and one-half percent
(1-1/2%) of the unpaid balance of the charges for Services rendered per
month or the maximum lawful rate under applicable state law.
(B) Definitions Time of day rate periods (including WilTel Recognized
National Holidays) will be as described in WilTel's F.C.C. Tariff No. 5.
(c) Taxes Customer acknowledges and understands that WilTel computes all
charges herein exclusive of any applicable federal, state or local use,
excise, gross receipts, sales and privilege taxes, duties, fees or similar
liabilities (other than general income or property taxes), whether charged
to or against WilTel or Customer because of the Services furnished to
Customer ("ADDITIONAL CHARGES"). Customer shall pay such Additional Charges
in addition to all other charges provided for herein.
(D) Modification of Charges WilTel reserves the right to eliminate Services
and/or modify charges for Services (which charge modifications shall not
exceed then-current generally available WilTel charges for comparable
services), upon not less than sixty (60) days prior notice to Customer,
which notice will state the effective date for the charge modification. In
the event WilTel notifies Customer of the elimination of a particular
Service and/or an increase in the charges, Customer may terminate this
Agreement, without incurring a cancellation charge only with respect to the
Services affected by the increase in charges. In
7
order to cancel such Services, Customer must notify WilTel, in writing, at
least thirty (30) days prior to the effective date of the increase in
charges. Further, in the event Customer cancels its subscription to a
particular Service as described in this Subsection 5(D), WilTel and
Customer agree to negotiate in good faith concerning Customer's minimum
monthly commitment, if any, described in the PET.
(E) Billing Disputes Notwithstanding the foregoing, late fees shall apply
(but shall not be due and payable for a period of sixty (60) days following
the Due Date therefor) for amounts reasonably disputed by Customer,
provided Customer: (i) pays all undisputed charges on or before the Due
Date, (ii) presents a written statement of any billing discrepancies to
WilTel in reasonable detail on or before the Due Date of the invoice in
question, and (iii) negotiates in good faith with WilTel for the purpose of
resolving such dispute within said sixty (60) day period. In the event such
dispute is resolved in favor of WilTel, Customer agrees to pay WilTel the
disputed amounts together with any applicable late fees within ten (10)
days of the resolution. In the event such dispute is resolved in favor of
Customer, Customer will receive a credit for the disputed charges in
question and the applicable late fees. In the event the dispute can not be
resolved within such sixty (60) day period (unless WilTel has agreed in
writing to extend such period) all disputed amounts together with late fees
shall become due and payable, and this provision shall not be construed to
prevent Customer from pursuing any available legal remedies. WilTel shall
not be obligated to consider any Customer notice of billing discrepancies
which are received by WilTel more than sixty (60) days following the Due
Date of the invoice in question.
(F) Suspension of Service In the event all undisputed charges due pursuant
to WilTel's invoice are not paid in full by the Due Date or disputed
charges owed by Customer, if any, are not paid in full by the time
specified as described in Subsection 5(E) above, WilTel shall have the
right, after giving Customer ten (10) days prior notice and opportunity to
pay such charges, to suspend all or any portion of the Services to Customer
("SUSPENSION NOTICE") until such time (designated by WilTel in its
Suspension Notice) as Customer has paid in full all undisputed charges then
due to WilTel, including any late fees. Following such payment, WilTel
shall reinstitute Services to Customer only when Customer provides WilTel
with satisfactory assurance of Customer's ability to pay for Services
(i.e., a deposit, letter of credit or other means acceptable to WilTel) and
Customers advance payment of the cost of reinstituting Services. If
Customer fails to make the required payment by the date set forth in the
Suspension Notice, Customer will be deemed
8
to have canceled the Services suspended effective as of the date of
suspension. Such cancellation shall not relieve Customer for payment of
applicable cancellation charges as described in Section 2.
6. CREDIT: Customer's execution of this Agreement signifies Customer's
acceptance of WilTel's initial and continuing credit approval procedures and
policies. WilTel reserves the right to withhold initiation or full
implementation of Services under this Agreement pending WilTel's initial
satisfactory credit review and approval thereof which may be conditioned upon
terms specified by WilTel, including, but not limited to, security for payments
due hereunder in the form of a cash deposit or other means. WilTel reserves the
right to modify its requirements, if any, with respect to any security or other
assurance provided by Customer for payments due hereunder in light of Customer's
actual usage when compared to projected usage levels upon which any security or
assurance requirement was based.
7. CREDITWORTHINESS: If at any time there is a material adverse change in
Customer's creditworthiness, then in addition to any other remedies available to
WilTel, WilTel may elect, in its sole discretion, to exercise one or more of the
following remedies: (i) cause Start of Service for Services described in a
previously executed Service Request to be withheld; (ii) cease providing
Services pursuant to a Suspension Notice in accordance with Section 5(F); (iii)
decline to accept a Service Request or other requests from Customer to provide
Services which WilTel may otherwise be obligated to accept and/or (iv) condition
its provision of Services or acceptance of a Service Request on Customer's
assurance of payment which shall be a deposit or such other means to establish
reasonable assurance of payment. An adverse material change in Customer's
creditworthiness shall include, but not be limited to: (i) Customer's default of
its obligations to WilTel under this or any other agreement with WilTel; (ii)
failure of Customer to make full payment of all undisputed charges due hereunder
on or before the Due Date on three (3) or more occasions during any period of
twelve (12) or fewer months or Customer's failure to make such payment on or
before the Due Date in any two (2) consecutive months; (iii) acquisition of
Customer (whether in whole or by majority or controlling interest) by an entity
which is insolvent, which is subject to bankruptcy or insolvency proceedings,
which owes past due amounts to WilTel or any entity, affiliated with WilTel or
which is a materially greater credit risk than Customer; or, (iv) Customer's
being subject to or having filed for bankruptcy or insolvency proceedings or the
legal insolvency of Customer.
8. REMEDIES FOR BREACH. In the event Customer is in material breach of this
Agreement, including without limitation, failure to pay all undisputed charges
due hereunder by the date stated in the suspension
9
Notice described in Subsection 5(F), WilTel shall have the right, after giving
Customer five (5) days prior notice and opportunity to cure, and in addition to
foreclosing any security interest WilTel may have, to (i) terminate this
Agreement; (ii) withhold billing information from Customer; and/or (iii) contact
the End Users (for whom calls are originated and terminated solely over
facilities comprising the WilTel network) directly and xxxx such End Users
directly until such time as WilTel has been paid in full for the amount owed by
Customer. If Customer fails to make payment by the date stated in the Suspension
Notice and WilTel, after giving Customer five (5) days prior notice, terminates
this Agreement as provided in this Section 8, such termination shall not relieve
Customer for payment of applicable cancellation charges as described in Section
2 above.
9. WARRANTY. WilTel will use reasonable efforts under the circumstances to
maintain its overall network quality. The quality of Services provided hereunder
shall be consistent with telecommunications common carrier industry standards,
government regulations and sound business practices. WILTEL MAKES NO OTHER
WARRANTIES ABOUT THE SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR USE.
10. LIABILITY; GENERAL INDEMNITY; REIMBURSEMENT.
-------------------------------------------
(A) Limited Liability IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF
CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY
MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER.
(B) General Indemnity In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of the Services through Customer, then
Customer agrees to forever indemnify and hold WilTel, its affiliated
companies and any third-party provider or operator of facilities employed
in provision of the Services harmless from and against any and all claims,
demands, suits, actions, losses, damages, assessments or payments which
those parties may assert arising out of or relating to any defect in the
Services.
(C) Reimbursement Customer agrees to reimburse WilTel for all reasonable
costs and expenses incurred by WilTel due to WilTel's direct participation
(either as a party or witness) in any administrative, regulatory or
criminal proceeding concerning Customer if WilTel's involvement in said
proceeding is based solely on WilTel's provision of Services to Customer.
10
11. FORCE MAJEURE. If WilTel's performance of this Agreement or any obligation
hereunder is prevented, restricted or interfered with by causes beyond its
reasonable control including, but not limited to, acts of God, fire, explosion,
vandalism, cable cut, storm or other similar occurrence, any law, order,
regulation, direction, action or request of the United States government, or
state or local governments, or of any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more such
governments, or of any civil or military authority, or by national emergency,
insurrection, riot, war, strike, lockout or work stoppage or other labor
difficulties, or supplier failure, shortage, breach or delay, then WilTel shall
be excused from such performance on a day-to-day basis to the extent of such
restriction or interference. WilTel shall use reasonable efforts under the
circumstances to avoid or remove such causes or nonperformance and shall proceed
to perform with reasonable dispatch whenever such causes are removed or cease.
12. STATE CERTIFICATION. Customer warrants that in all jurisdictions in which it
provides long distance services that require certification, it has obtained the
necessary certification from the appropriate governmental authority. Further, if
required by WilTel, Customer agrees to provide proof of such certification
acceptable to WilTel. In the event Customer is prohibited, either on a temporary
or permanent basis, from continuing to conduct its telecommunications operations
in a given state, Customer shall (i) immediately notify WilTel by facsimile, and
(ii) send written notice to WilTel within twenty-four (24) hours of such
prohibition.
13. INTERSTATE/INTRASTATE SERVICE. Except with respect to Services specifically
designated as intrastate Services or international Services, the rates provided
to Customer in a Service Schedule are applicable only to Services if such
Services are used for carrying interstate telecommunications (i.e., Services
subject to FCC jurisdiction). WilTel shall not be obligated to provide Services
with end points within a single state or Services which originate/terminate at
points both of which are situated within a single state. In those states where
WilTel is authorized to provide intrastate service (i.e., telecommunications
transmission services subject to the jurisdiction of state regulatory
authorities), WilTel will, at its option, provide intrastate Services pursuant
to applicable state laws, regulations and applicable tariff, if any, filed by
WilTe1 with state regulatory authorities as required by applicable law.
14. AUTHORIZED USE OF WILTEL NAME. Without WilTel's prior written consent,
Customer shall not (i) refer to itself as an authorized representative of WilTel
whenever it refers to the Services in promotional, advertising or other
materials, or (ii) use WilTel's logos, trade marks, service marks, or any
variations thereof in any of
11
its promotional, advertising or other materials. Additionally, Customer shall
provide to WilTel for its prior review and written approval, all promotions,
advertising or other materials or activity using or displaying WilTel's name or
the Services to be provided by WilTel. Customer agrees to change or correct, at
Customer's expense, any such material or activity which WilTel, in its sole
judgment, determines to be inaccurate, misleading or otherwise objectionable.
Customer is explicitly authorized to only use the following statements in its
sales literature or if in response to the inquiry by Customer's end users (i)
"Customer utilizes the WilTel network", (ii) "Customer utilizes WilTel's
facilities", (iii) "WilTel provides only the network facilities", and (iv)
"WilTel is our network services provider".
15. NOTICES. Notices under this Agreement shall be in writing and delivered to
the person identified below at the offices of the parties as they appear below
or as otherwise provided for by proper notice hereunder. Customer shall notify
WilTel in writing if Customer's billing address is different than the address
shown below. The effective date for any notice under this Agreement shall be the
date of actual receipt of such notice by the appropriate party, notwithstanding
the date of mailing or transmittal via hand delivery or facsimile.
IF TO WILTELS: WorldCom Network Services, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attn: Carrier Sales Dept.
IF TO CUSTOMER: Telehub Communications, Corp.
0000 Xxx-Xxxxx Xxxx.
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Telephone No. (000) 000-0000
Fax No.: (000) 000-0000
16. NO-WAIVER. No term or provision of this Agreement shall be deemed waived
and no breach or default shall be deemed excused unless such waiver or consent
shall be in writing and signed by the party claimed to have waived or consented.
A consent to waiver of or excuse for a breach or default by either party,
whether express or implied, shall not constitute a consent to, waiver of, or
excuse for any different or subsequent breach or default.
17. PARTIAL INVALIDITY; GOVERNMENT ACTION.
-------------------------------------
(A) Partial Invalidity If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in connection
with this Agreement shall be invalid or unenforceable under applicable law,
rule or regulation, that
12
part shall be ineffective to the extent of such invalidity only, without in
any way affecting the remaining parts of that provision or the remaining
provisions of this Agreement. In such event, Customer and WilTel will
negotiate in good faith with respect to any such invalid or unenforceable
part to the extent necessary to render such part valid and enforceable.
(B) Government Action Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an affected
portion of the Service if any material rate or term contained herein and
relevant to the affected Service is substantially changed (to the detriment
of the terminating party) or found to be unlawful or the relationship
between the parties hereunder is found to be unlawful by order of the
highest court of competent jurisdiction to which the matter is appealed,
the FCC, or other local, state or federal government authority of competent
jurisdiction.
18. EXCLUSIVE REMEDIES. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
19. Use of Service. Upon WilTel's acceptance of a Service Request hereunder,
WilTel will provide the Services specified therein to Customer upon condition
that the Services shall not be used for any unlawful purpose. The provision of
Services will not create a partnership or joint-venture between the parties or
result in a joint communications service offering to any third parties, and
WilTel and Customer agree that this Agreement, to the extent it is subject to
FCC regulation, is an inter-carrier agreement which is not subject to the filing
requirements of Section 211(a) of the Communications Act of 1934 (47 U.S.C.
Section 211(a)) as implemented in 47 C.F.R. Section 43.51.
20. CHOICE OF LAW; FORUM.
--------------------
(A) Law. This Agreement shall be construed under the laws of the State of
Oklahoma without regard to choice of law principles.
(B) Forum Any legal action or proceeding with respect to this Agreement may
be brought in the Courts of the State of Oklahoma in and for the County of
Tulsa or the United States of America for the Northern District of
Oklahoma. By execution of this Agreement, both Customer and WilTel hereby
submit to such jurisdiction, hereby expressly waiving whatever rights may
correspond to either of them by reason of their present or future domicile.
In furtherance of the foregoing, Customer and WilTel hereby agree to
service by U.S. Mail at the notice addressees referenced in Section 15.
Such service shall be deemed effective upon the earlier of actual receipt
or seven (7) days following
13
the date of posting.
21. PROPRIETARY INFORMATION.
-----------------------
(A) Confidential Information The parties understand and agree that the
terms and conditions of this Agreement (but not the existence thereof), all
documents referenced herein (including invoices to Customer for Services
provided hereunder), communications between the parties regarding this
Agreement or the Services to be provided hereunder (including price quotes
to Customer for any Services proposed to be provided or actually provided
hereunder), as well as such information relevant to any other agreement
between the parties (COLLECTIVELY "CONFIDENTIAL INFORMATION"), are
confidential as between Customer and WilTel.
(B) Limited Disclosure A party shall not disclose Confidential Information
unless subject to discovery or disclosure pursuant to legal process, or to
any other party other than the directors, officers, and employees of a
party or a party's agents including their respective attorneys,
consultants, brokers, lenders, insurance carriers or bona fide prospective
purchasers who have specifically agreed in writing to nondisclosure of the
terms and conditions hereof. Any disclosure hereof required by legal
process shall only be made after providing the non-disclosing party with
notice thereof in order to permit the non-disclosing party to seek an
appropriate protective order or exemption. Violation by a party or its
agents of the foregoing provisions shall entitle the non-disclosing party,
at its option, to obtain injunctive relief without a showing of irreparable
harm or injury and without bond.
(C) Press Releases Except as provided in Section 14 below, the parties
further agree that any press release, advertisement or publication
generated by a party regarding this Agreement, the Services provided
hereunder or in which a party desires to mention the name of the other
party or the other party's parent or affiliated company(ies), will be
submitted to the non-publishing party for its written approval prior to
publication.
(D) Survival of Confidentiality The provisions of this Section 21 will be
effective as of the date of this Agreement and remain in full force and
effect for a period which will be the longer of (i) one (1) year following
the date of this Agreement, or (ii) one (l) year from the termination of
all Services hereunder.
22. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors or assigns,
provided, however, that Customer shall not
14
assign or transfer its rights or obligations under this Agreement without the
prior written consent of WilTel, which consent shall not be unreasonably
withheld or delayed, and further provided that any assignment or transfer
without such consent shall be void.
23. GENERAL.
-------
(A) Survival of Terms The terms and provisions contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by the parties hereto shall so survive the completion
of performance and termination of this Agreement, including, without
limitation, provisions for indemnification and the making of any and all
payments due hereunder.
(B) Headings Descriptive headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
(C) Industry Terms Words having well-known technical or trade meanings
shall be so construed, and all listings of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
(D) Rule of Construction No rule of construction requiring
interpretation against the drafting party hereof shall apply in the
interpretation of this Agreement.
24. ENTIRE AGREEMENT. This Agreement consists of (i) all the terms and
conditions contained herein, and, (ii) all documents incorporated herein
specifically by reference. This Agreement constitutes the complete and exclusive
statement of the understandings between the parties and supersedes all proposals
and prior agreements (oral or written) between the parties relating to Service
provided hereunder. No subsequent agreement between the parties concerning the
Services shall be effective or binding unless it is made in writing and
subscribed to by authorized representatives of Customer and WilTel.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement on the date first written above.
WORLDCOM NETWORK SERVICES, INC. TELEHUB COMMUNICATIONS CORP.
D/B/A WILTEL
BY: BY: /s/ Xxxxxx X. Xxxxx
--------------------------- ---------------------------
(SIGNATURE) (SIGNATURE)
15
Xxxxxx X. Xxxxx (Dick)
--------------------------------------------------------------------------------
(PRINT NAME) (PRINT NAME)
V.P. Sales/Mkting
--------------------------------------------------------------------------------
(TITLE) (TITLE)
