EXHIBIT 10.31
IDX Services Agreement with CARRIER.
TELECOMMUNICATIONS SERVICES AGREEMENT
This TELECOMMUNICATIONS SERVICES AGREEMENT ("Agreement") is entered into on
September 1, 1999 (the "Effective Date"), between:
IDX INTERNATIONAL, INC., a Virginia corporation having a business address at
11410 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (hereinafter
"IDX"); and
TELEDENMARK USA, INC., a Delaware corporation having a business address at 00
Xxxx Xxxxxx, Xxx Xxxx 00000 (hereinafter "CARRIER"); collectively referred to as
the "Parties" individually, a "Party".
WlTNESSETH:
WHEREAS, IDX is a provider of international telecommunications services; and
WHEREAS, CARRIER desires to purchase certain telecommunications services
provided by IDX and IDX desires to provide certain telecommunications services
to CARRIER all as more fully described on the terms and conditions contained
herein;
NOW THEREFORE, the Parties, in consideration of the mutual covenants and
agreements hereinafter set forth, agree as follows:
1. DESCRIPTION OF SERVICES
1.1 IDX, either directly or through its authorized affiliates or underlying
carriers, shall provide telecommunications services to CARRIER to route
CARRIER's international telecommunications traffic to and from various
destinations around the world, as more particularly described in Annex
1-A attached hereto (the "IDX Services"). Where applicable, the IDX
Services shall be hereinafter referred to as the "Services." Additional
services may be added from time to time to this Agreement upon terms
and conditions to be mutually agreed upon the Parties and may be
included by adding an amended Annex 1 to this Agreement.
1.2 The destinations offered by IDX for the providing Services are listed
in Annex 2-A attached hereto (the "IDX Destinations"), which
Destinations may be amended from time to time by IDX by providing
CARRIER with seven (7) days prior to written notice. Where applicable,
the IDX Destinations are hereinafter referred to as the "Destinations."
2. TERM
2.1 This Agreement shall commence on the Effective Date and shall continue
for an initial term ("Term") of one (1) year. Thereafter this Agreement
shall remain in effect unless terminated by either Party by providing a
written on (1) month notice of termination to the other party.
2.2 IDX shall endeavor to provide the IDX Services on the date of
completion of testing (the "Service Date"), and each Party shall notify
the other Party when such testing for service is completed.
3. OPERATIONAL AND COMMERCIAL MATTERS
3.1 The point of interconnection with CARRIER for the provision of IDX
Services by IDX shall be at CONNECTION POINT (the "IDX Interconnection
Location"). IDX will initially provide and pay for INBOUND T1s, and
CARRIER will initially provide and pay for OUTBOUND T1s.
IDX Services Agreement with CARRIER.
3.2 CARRIER shall be responsible to procure, at its own expense, all
necessary switching and multiplexer equipment to be located in the
CARRIER Interconnection Location to provide voice compression &
decompression plus International Direct Distance Dialing. This
equipment shall remain the property of CARRIER. CARRIER agrees to
provide and be responsible for the operation of the local facility, and
shall provide 7 days and 24 hours of facility management and
maintenance at the CARRIER Location.
3.3 IDX shall be responsible to procure, at its own expense, all necessary,
switching and multiplexer equipment to be located in the IDX
Interconnection Location to provide voice compression & decompression
plus International Direct Distance Dialing. This equipment shall remain
the property of IDX. IDX shall provide 7 days and 24 hours of facility
management and maintenance at the IDX Location.
3.4 The cost of a link will be paid by the party using it. The Parties
shall coordinate the management of their respective system facilities,
with each Party being responsible for providing and operating, at its
own expense, its respective network facilities. The Parties also shall
interface on a 24 hours/7 days a week basis to assist each other with
the isolation and repair of any facility faults in their respective
networks, and with the identification, investigation and mitigation of
real time traffic flow problems to/from any service destination.
3.5 CARRIER shall provide prompt and accurate traffic forecasting
information in order to allow the efficient provisioning of the
Services. Initial forecasts shall be provided prior to the Services
Date and periodically thereafter as may be reasonably requested by IDX.
Such forecasts shall be in a form satisfactory to IDX and shall specify
traffic volumes, daily and seasonal profiles, and peak periods for each
Destination.
3.6 IDX reserves the right to cancel and/or temporarily suspend any of all
of the IDX Services if CARRIER engages in activities which, in the
reasonable opinion of IDX, may cause disruption of service or damage to
IDX's network of facilities. IDX shall use commercially reasonable
efforts to provide CARRIER with advance notice of such suspension and
or cancellation and in any case shall endeavor to provide written
confirmation of such suspension and or cancellation within a
commercially reasonable time thereafter.
4. PRICING AND BILLING
4.1 For the IDX Services provided pursuant to the Agreement, CARRIER shall
pay IDX the rates (the "Rates") by IDX Destination set forth in Annex
2-A attached hereto, which Rates may be adjusted by IDX from time to
time by providing seven (7) days prior written notice to CARRIER. The
IDX Rates shall hereinafter be referred to as the "Rates."
4.2 As soon as practicable after the end of each month. IDX shall submit
invoices to CARRIER for the services provided hereunder. Such invoices
shall be based on the chargeable duration of the calls routed pursuant
to this Agreement. The invoice will include traffic by destination,
tariffs by destination and total amount due. For purposes of this
Agreement, IDX Services chargeable calls shall begin when IDX receives
answer supervision.
4.3 All amounts due hereunder shall be payable to IDX in U.S. dollars in
immediately available funds within thirty (30) days of the date of
invoice, except as agreed to by the Parties. If CARRIER in good faith
disputes any invoiced amount, it shall submit to IDX within thirty (30)
days following receipt of such disputed invoice, written documentation
identifying the minutes and/or rates which are in dispute. The Parties
shall investigate the matter. Any amounts due hereunder that are not
paid when due shall accrue interest at the rate of one and one-half
percent (1.5%) per month, compounded monthly, beginning with the day
following the date on which payment was due, and continuing until paid
in full.
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IDX Services Agreement with CARRIER.
4.4 IDX may at any time require the CARRIER hereto to issue a deposit,
irrevocable letter of credit or other form of security acceptable to
IDX, if CARRIER's financial circumstances or payment history is or
becomes unacceptable to IDX based upon reasonable supporting evidence.
4.5 All Rates and other charges due hereunder are exclusive of all
applicable taxes, including value added tax, sales taxes, and duties or
levies imposed by any authority, government or government agency, all
of which shall be paid promptly when due by the party purchasing
services hereunder.
5. TERMINATION
5.1 In addition to any other rights at law or in equity, either party may
terminate this Agreement immediately in the event that CARRIER (i)
fails to make any undisputed payment when due hereunder; (ii) becomes
insolvent or bankrupt, or ceases paying its debts generally as they
mature; or (iii) commits a breach of any of the terms of this Agreement
(other than a breach of a payment obligation as addressed in (i) above)
and fails to remedy such breach within thirty (30) days after receipt
of written notice thereof from IDX.
5.2 In the event of any termination pursuant to this Article 6, CARRIER
shall pay the applicable Rates for any Services rendered through and
including the date of termination as well as any amounts due account of
any minimum volume commitment obligations and Shortfall charges, if
any, arising pursuant to Annex 2-A.
6 LIMITATION OF LIABILITY
6.1 The parties recognize that IDX has no control over how a foreign
administration or third party carrier establishes its own rules and
conditions pertaining to international telecommunications services. The
Parties agree that IDX shall not be liable for any loss or damage
sustained by CARRIER, its interconnecting carriers, or its end users
due to any failure in or breakdown of the communication facilities
associated with providing services hereunder, for any interruption or
degradation of such services, whatsoever shall be the cause or duration
thereof.
6.2 In no event will IDX be liable to CARRIER for consequential, special,
or indirect losses or damages, howsoever arising; and whether under
contract, tort or otherwise, including, without limitation, third
party, claims, loss of profits, or loss of or damage to CARRIER's
reputation or goodwill.
7. ASSIGNMENT
This Agreement is personal to the Parties and may not be assigned or transferred
by either Party, without the prior written consent of the other Party. Such
consent may not be unreasonably withheld, except that the parties agree that
either party may assign this Agreement without consent to any affiliated entity
or successor in interest whether by merger, reorganization, or transfer of all
or substantially all of its assets.
8. FORCE MAJEURE
No failure or omission by either Party, to carry out or observe any of the terms
and conditions of this Agreement (other than any payment obligation) shall give
rise to any claim against such Party or be deemed a breach of this Agreement, if
such failure or omission arises from an act of God, an act of Government, or any
other circumstance commonly known as force majeure.
9. CONFIDENTIALITY
9.1 For a period of one year (1) years from the date of disclosure thereof,
each Party shall maintain the confidentiality, of all information or
data of any nature ("Information") provided to it by the other
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IDX Services Agreement with CARRIER.
Party hereto provided such information contains a conspicuous marking
identifying it as "Confidential" or" Proprietary." Each Party shall use
the same efforts (but in no case less than reasonable efforts) to
protect the Information it receives hereunder as it accords to its own
Information. The above requirements shall not apply to Information
which is already in the possession of the receiving Party through no
breach of an obligation of confidentiality to the disclosing Party or
any third Party, is already publicly available through no breach of
this Article 10, or has been previously independently developed by the
receiving Party. This Agreement shall not prevent any disclosure of
Information pursuant to applicable law or regulation, provided that
prior to making such disclosure, the receiving Party uses reasonable
efforts to notify the other Party of the required disclosure. All
Information provided by any Party to the other hereunder shall be used
solely for the purpose for which it is supplied.
9.2 Neither Party shall (i) refer to itself as an authorized representative
of the other Party in promotional, advertising, or other materials,
(ii) use the other Party's logos, trade marks, service marks, or any
variations thereof in any of its promotional, advertising, or other
materials, or (iii) release any public announcements referring to the
other Party of this Agreement without first having obtained such
Party's Prior written consent.
10 NOTICE
10.1 All notices, requests, or other communications hereunder shall be in
writing, addressed to the parties as follows:
If to CARRIER: TeleDenmark USA, Inc
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: President
Tel: 000 000 0000
Fax: 000 000 0000
If to IDX: IDX International, Inc.
11410 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Operating Officer
Tel: 0-000-000-0000
Fax: 0-000-000-0000
10.2 Notices mailed by registered or certified mail shall be conclusively
deemed to have been received by the addressee on the fifth business day
following the mailing of sending thereof. Notices sent telex or
facsimile shall be conclusively deemed to have been received when the
delivery confirmation is received. If either Party, wishes to alter the
address to which communications to it are sent, it may do so by
providing the new address in writing to the other Party.
11. COMPLIANCE WITH LAWS
11.1 CARRIER shall not use the Services in any manner or for any purpose
which constitutes a violation of applicable laws or the laws of any
foreign jurisdiction in which the Services are being provided. This
Agreement and the continuance hereof by the Parties is contingent upon
the obtaining and the continuance of such approvals, consents,
governmental and regulatory authorizations, licenses and permits as may
be required or deemed necessary by the Parties, and the Parties shall
use commercially reasonable efforts to obtain and maintain the same in
full force and effect. CARRIER further agrees to refrain from engaging
in sales, advertising or marketing within or outside of the United
States which IDX believes could impair its or its affiliates'
relationship with any overseas authority.
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IDX Services Agreement with CARRIER.
11.2 The Parties acknowledge that this Agreement is subject to Section 211
of the Communications Act, as amended, and shall govern IDX's provision
of the IDX Services to CARRIER. The Parties also understand and agree
that the terms and conditions herein shall, in all cases, supersede any
terms set forth in any IDX tariff on file and then in effect with the
Federal Communications Commission.
12. MISCELLANEOUS
12.1 Any article or any provision of this Agreement which is or becomes
illegal, invalid, or unenforceable shall be severed herefrom and shall
be ineffective to the extent of such illegality, invalidity, or
unenforceability but shall not affect or impair the enforceability of
the remaining provisions herein. All valid provisions shall be
considered severed from any illegal, invalid, or unenforceable Article
or provision of this Agreement and shall otherwise remain in full force
and effect.
12.2 No waiver by either Party to any provisions of this Agreement shall be
binding unless made in writing. Any such waiver shall relate only to
such specific matter, non-compliance or breach to which it relates to
and shall not apply to any subsequent matter, non-compliance or breach.
12.3 The relationship between the Parties shall not be that of partners, and
nothing herein contained shall be deemed to constitute a partnership
between them or a merger of their assets or their fiscal or other
liabilities or undertakings. Neither Party shall have the right to bind
the other Party, except as expressly provided for herein.
12.4 This Agreement shall be governed by the laws of the State of New York,
without reference to its principles of conflict of laws. CARRIER
irrevocably consents and submits that any disputes regarding this
agreements shall be resolved by arbitration governed by the laws of the
State of New York.
12.5 This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original.
12.6 This Agreement, including the following Annexes:
Annex 1-A IDX Services
Annex 2-A IDX Destinations and Rates
represents the entire understanding between the Parties in relation to
the matters herein and supersedes all previous agreements made between
the Parties, whether oral or written. This agreement can only be
changed, amended or modified by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement, in
duplicate, or caused this Agreement to be executed in duplicate by a duly
authorized officer, as of the date first above written.
IDX INTERNATIONAL, INC. CARRIER
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx Xxxx
----------------------- ----------------------
Name: Xxxx Xxxxxxx Name: Xxxxxxx Xxxx
----------------------- ----------------------
Title: V.P. Business DVLPMT Title: President
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IDX Services Agreement with CARRIER.
ANNEX 1-A
IDX SERVICES
1. International Direct Distance Dialing (IDDD) - IDX will provide
facilities to route international telecommunications traffic (IDDD
type) and will arrange with authorized international carriers to
provide service to various destinations around the world.
2. National Direct Distance Dialing - IDX will provide facilities to route
national telecommunications traffic (Domestic US) and will arrange with
authorized national carriers to provide service to the US.
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IDX Services Agreement with CARRIER.
ANNEX 2
IDX DESTINATIONS AND RATES
DESTINATION PRICE (US$) EFFECTIVE DATE
----------- ----------- --------------
China 0.2750 Now
China (Mobile) 0.4100 Now
Hong Kong 0.0440 Now
Indonesia (Jakarta) 0.1400 Now
Indonesia (Rest) 0.3400 Now
Ireland (Dublin) 0.0550 Now
Ireland (Rest) 0.0650 Now
Ireland (Mobile) 0.1200 Now
Philippines (Manila) 0.2050 Now
Philippines (Rest) 0.2300 Now
Philippines (Mobile) 0.2800 Now
Singapore 0.1125 Now
Singapore (Mobile) 0.2500 Now
Taiwan (Taipei) 0.0850 Now
Taiwan (Rest) 0.1200 Now
Taiwan (Mobile) 0.1900 Now
Vietnam 0.7000 Now
* Mobile traffic upon request
* All charges: 30/06 seconds
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