EXHIBIT 10.4
SERVICES AGREEMENT
BETWEEN
ACCESS ONE COMMUNICATIONS CORP.
AND
XXXX.XXX HOLDING CORP., INC.
TABLE OF CONTENTS
PAGE
1. Definitions...............................................................1
2. Services; Service Orders..................................................6
3. Term......................................................................6
4. Billing And Payment; Rates And Charges....................................7
5. Audits....................................................................8
6. Most Favored Purchaser....................................................8
7. Data Retention............................................................9
8. Taxes.....................................................................9
8.1 Filing of Returns................................................9
8.2 Taxes - Calculation and Billing..................................9
8.3 Universal Service Assessment....................................10
8.4 Taxes/Additional Charges........................................10
8.5 Tax Reporting...................................................11
9. Termination..............................................................11
10. Warranties And Limitation Of Liability...................................12
11. Indemnification..........................................................12
12. Confidentiality..........................................................13
13. Notices..................................................................15
14. Compliance With Law......................................................16
15. Effect of Tariffs........................................................16
16. Software Development.....................................................16
17. Force Majeure............................................................16
18. Waivers..................................................................17
19. Assignment...............................................................17
20. Independent Contractors..................................................17
21. Integration..............................................................18
22. Governing Law; Arbitration...............................................18
23. Construction.............................................................18
24. Headings.................................................................18
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TABLE OF CONTENTS
(CONTINUED)
25. Third Parties............................................................19
26. Trade Names and Trademarks...............................................19
27. Unenforceability Of Provisions...........................................19
28. Cumulative Rights And Remedies...........................................19
29. Amendments...............................................................19
30. Survival Of Provisions...................................................19
31. Counterparts.............................................................19
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SERVICES AGREEMENT
This Services Agreement is made as of this 24th day of March, 2000 (the
"EFFECTIVE DATE") by and between Access One Communications Corp., a New Jersey
corporation, on behalf of itself and its Affiliates that may provide a portion
of the services under this Agreement ("ACCESS ONE"), and Xxxx.xxx Holding Corp.,
Inc., a Pennsylvania corporation ("XXXX.XXX").
RECITALS
WHEREAS, the Parties are Telecommunications Carriers subject to the
Communications Act of 1934, as amended; and
WHEREAS, Access One is engaged in the business of providing Local
Exchange Services and Exchange Access Services through the use of combinations
of unbundled Network Elements obtained from Incumbent Local Exchange Carriers
and otherwise; and
WHEREAS, Xxxx.Xxx desires to offer Telephone Exchange Services and
Exchange Access Services by reselling telecommunications facilities and
services, and Administrative Support Services, obtained from Access One; and
WHEREAS, Access One desires to sell its capabilities in providing
Telephone Exchange Services, Exchange Access Services, and certain
Administrative Support Services, to Xxxx.Xxx for use by Xxxx.Xxx to provide
Telephone Exchange Services and Exchange Access Services to its End Users.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
warranties contained herein, and intending to be legally bound hereby, the
Parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
respective meanings given to them in this Section 1. Said terms also
shall have the said meanings when used in any exhibit, schedule,
attachment, or addendum hereto or in any document made or otherwise
delivered pursuant to this Agreement. Each term defined in this Section
1 shall be deemed to refer to the singular, plural, masculine, feminine
or neuter as the context requires.
1.1 "AAA" refers to the American Arbitration Association.
1.2 "ACT" means the Communications Act of 1934, 47 U.S.C.ss.151, et.
seq., as amended by the Telecommunications Act of 1996 and
otherwise, and all rules, regulations, orders, policies and other
pronouncements of the FCC, implementing or enforcing such
statutes.
1.3 "ADMINISTRATIVE SUPPORT SERVICES" refers to both the UNE-P
Administrative Support Services and TSR Administrative Support
Services as defined herein.
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1.4 "AGREEMENT" means this Services Agreement, as originally executed
and as the same may be amended, modified and supplemented from
time to time by exhibits, schedules, attachments or addendums
executed in accordance herewith.
1.5 "AFFILIATE" means, when used with reference to a specific Person,
any Person that, directly or indirectly, through one or more
intermediaries, Controls, is Controlled by or is under common
Control with such specific Person. This term shall also include
any person who, directly or indirectly, through one or more
intermediaries, has the contractual right or option to acquire or
vote more than ten percent (10%) of the voting interest of a
specific Person.
1.6 "ASSIGNMENT" means a sale, exchange, transfer or other disposition
of all or any portion of a Party's rights hereunder.
1.7 "AUTHORIZATIONS" has the meaning set forth in Section 14 of the
Agreement.
1.8 "AUTOMATIC NUMBER IDENTIFICATION" or "ANI" is the directory number
of the calling station, used by a Telecommunications Carrier for
routing and billing purposes.
1.9 "BILLING SERVICES" are as described in Exhibit B of the Agreement.
1.10 "BTN" or "BILLING TELEPHONE NUMBER" has the meaning set for in
Section 1.20 of Exhibit A of the Agreement.
1.11 "BUSINESS DAY" means any day other than Saturdays, Sundays, and
legal holidays.
1.12 "CARRIER ACCESS BILLING SYSTEM" or "CABS" has the meaning set
forth in Section 5.1 of Exhibit B of the Agreement.
1.13 "CALL DETAIL RECORDS" or "CDR" has the meaning set forth in
Section 3.1 of Exhibit B of the Agreement.
1.14 "CONTROL" (or the verb form "CONTROLLED"), means a Person shall be
deemed to control another Person when such controlling Person has
the power, directly or indirectly, to cause the direction of the
management or policies of such other Person, whether through the
ownership of voting securities, by contract, agency or otherwise.
1.15 "CUSTOMER PROPRIETARY NETWORK INFORMATION" or "CPNI" is as defined
by the Act.
1.16 "CUSTOMER SERVICE RECORDS" or "CSRS" has the meaning set forth in
Section 1.14 of Exhibit A of the Agreement.
1.17 "CUSTOMER" means any End-User of the Services.
1.18 "DIRECTORY NUMBER" or "DN" means a unique ten-digit number that
resides on a Access One switch, also referred to as a "working
telephone number".
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1.19 "ELECTRONIC DATA EXCHANGE INTERFACE" or "EDI" refers to industry
standard computer-to-computer exchange of business records over
telephone lines and the Internet.
1.20 "EXCHANGE MESSAGE INTERFACE" or "EMI" has the meaning set forth in
Section 3.1 of Exhibit B of the Agreement.
1.21 "END USER" means a Customer that purchases Telephone Exchange
Services or Telephone Toll Services from Xxxx.xxx.
1.22 "EUCL" means the "END-USER COMMON LINE CHARGE" (also known as the
"SUBSCRIBER LINE CHARGE" or "SLC"), as established and defined by
FCC regulations governing Switched Access Services.
1.23 "EFFECTIVE DATE" has the meaning set forth in the first paragraph
of this Agreement.
1.24 "EXCHANGE ACCESS" is as defined by the Act.
1.25 "FCC" refers to the Federal Communications Commission.
1.26 "FINAL ORDER" means an action by any applicable federal or state
agency or court as to which: (i) no request for stay by the
federal or state agency or court of the action is pending, no such
stay is in effect, and, if any deadline for filing any such
request is designated by statute or regulation, it has passed;
(ii) no petition for rehearing or reconsideration of the action is
pending and the time for filing any such petition has passed;
(iii) the federal or state agency or court does not have the
action under reconsideration on its own motion and the time for
such reconsideration has passed; and (iv) no appeal to a court, or
request for stay by a court, of the federal or state agency's or
court's action is pending or in effect, and if any deadline for
filing such appeal or request is designated by statute or rule, it
has passed.
1.27 "ILEC" means an "INCUMBENT LOCAL EXCHANGE CARRIER" as defined by
the Act.
1.28 "INDEMNIFIED PERSON" has the meaning set forth in Section 11.1 of
the Agreement.
1.29 "INDEMNIFYING PARTY" has the meaning set forth in Section 11.1 of
the Agreement.
1.30 "IXC" means an interexchange carrier providing Telephone Toll
Services.
1.31 "JOINT IMPLEMENTATION PLAN" has the meaning set forth in Section
4.2 of Exhibit A of the Agreement.
1.32 "JOINT IMPLEMENTATION TEAM" has the meaning set forth in Section
2.1 of Exhibit A of the Agreement.
1.33 "LEC" means a "LOCAL EXCHANGE CARRIER" as defined by the Act.
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1.34 "LOA" or "LETTER OF AUTHORIZATION" is as defined in 47 X.X.X.xx.
64.1100.
1.35 "LOSS" has the meaning set forth in Section 11.1 of the Agreement.
1.36 "MERGER AGREEMENT" refers to the Agreement and Plan of Merger
dated March 24, 2000 and entered between Xxxx.xxx Inc., Aladdin
Acquisition Corp., and Access One Communications Corp. pursuant to
which Xxxx.xxx, Inc. would acquire all of the stock of Access One
Communications Corp.
1.37 "MPB" or "MEET BILLING POINT" has the meaning set forth in Section
5.2 of Exhibit B of the Agreement.
1.38 "NETWORK ELEMENT" is as defined by the Act.
1.39 "NETWORK DATA MOVER" or "NDM" has the meaning set forth in Section
3.1 of Exhibit B of the Agreement.
1.40 "NOTICE OF CLAIM" has the meaning set forth in Section 11.2 of the
Agreement.
1.41 "NRC" means a non-recurring charge.
1.42 "OSS" or "OPERATIONS SUPPORT SYSTEMS" has the meaning set forth in
Section 1.7 of Exhibit A of the Agreement.
1.43 "PARTY" or "PARTIES" refers to one or both of the parties to this
Agreement, Access One or Xxxx.xxx, as the context indicates.
1.44 "PERSON" means any general partnership, limited partnership,
limited liability company, corporation, joint venture, trust,
business trust, governmental agency, cooperative, association,
individual or other entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of
such person as the context may require.
1.45 "PHASE I" refers to the first 180 days after the Effective Date of
this Agreement. During such period, the Xxxx.xxx base of End Users
of its Telephone Toll Services that subscribed to Xxxx.xxx
Telephone Toll Services through America On Line ("AOL"), will be
transitioned to the Access One platform for Telephone Exchange
Services and Exchange Access Services to the extent feasible and
desirable to Xxxx.xxx. In addition, during such period, Access One
shall provide customer service, billing inquiry and trouble
reporting on Xxxx.xxx's behalf.
1.46 "PHASE II" refers to the period of time beginning 181 days after
the Effective Date and ending as of the termination of this
Agreement. During such time, both AOL-derived End Users and
non-AOL-derived End Users of Xxxx.xxx Telephone Toll Services will
be transitioned to the Access One platform for Telephone Exchange
Services and Exchange Access Service(s) as feasible and desirable
to Xxxx.xxx. In addition, during such period, Xxxx.xxx will take
back from Access One the customer service, billing inquiry and
trouble reporting functions associated with the provision of
Services to Xxxx.xxx End Users.
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1.47 "PICC" means the "PRESUBSCRIBED INTEREXCHANGE CARRIER CHARGE"
element of Switched Access charges, as further defined by FCC
regulations governing the provision of Switched Access Services.
1.48 "PROPRIETARY INFORMATION" means information marked with an
appropriate legend relating to the business or operations of
Xxxx.xxx, Access One, or their subsidiaries, Affiliates, End Users
and consultants including, but not limited to, all technical,
marketing and financial information relating thereto, any
information relating to the pricing, methods, processes, financial
data, lists, apparatus, statistics, programs, research,
development or related information of Xxxx.xxx, Access One or
their subsidiaries or Affiliates, or Xxxx.xxx's or Access One's
End Users, concerning past, present or future business activities
or operations of said entities or the provision of Services under
this Agreement, as further described in Section 12.1 of the
Agreement.
1.49 "REGULATORY REQUIREMENT" has the meaning set forth in Section 9.1
of the Agreement.
1.50 "SERVICES" refers to the UNE-P facilities and services, the TSR
services, the Administrative Support Services, and the Billing
Services, delineated in Exhibits A-C to the Agreement, purchased
by Xxxx.xxx to be resold to End Users in certain geographic market
areas, or otherwise used by Xxxx.xxx to provide Telephone Exchange
Services and Exchange Access Services.
1.51 "SERVICE AREAS" refer to the geographic markets referred in
Exhibit A of the Agreement as amended from time-to-time.
1.52 "SERVICE OUTAGE" refers to a failure of any component of the
Service(s) that results in a complete loss of call origination
and/or receipt capability.
1.53 "SUBSIDIARY" means any person owned or controlled by Access One or
Xxxx.xxx.
1.54 "STATE COMMISSION" is as defined by the Act.
1.55 "SWITCHED ACCESS RATES" refers to the rates applicable to Switched
Access Services.
1.56 "SWITCHED ACCESS SERVICE" means the offering of transmission or
switching services to Telecommunications Carriers for the purpose
of origination or termination of Telephone Toll Services, and is a
subset of Exchange Access Services.
1.57 "TARIFFED SERVICES" are services offered pursuant to effective
tariffs filed with the various applicable State Commissions and/or
the FCC.
1.58 "TAX" or "TAXES" has the meaning set forth in Section 8.1(A) of
the Agreement.
1.59 "TELECOMMUNICATION CARRIER" is as defined by the Act.
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1.60 "TELEPHONE EXCHANGE SERVICES" is as defined by the Act.
1.61 "TELECOMMUNICATIONS SERVICES" is as defined by the Act.
1.62 "TELEPHONE TOLL SERVICES" is as defined by the Act.
1.63 "TSR ADMINISTRATIVE SUPPORT SERVICES" is as described in Section 3
of Exhibit A.
1.64 "UNE-PLATFORM" or "UNE-P" refers to various combinations of the
loop, port, transport, and other Network Elements obtained from
ILECs. Each such Network Element combination is sufficient to
enable Telecommunications Carriers to provide Telephone Exchange
Service(s) and Switched Access Service(s) exclusively through the
use such combination of Network Elements.
1.65 "UNE-P ADMINISTRATIVE SUPPORT SERVICES" as described in Section 2
of Exhibit A.
1.66 "USF" or "UNIVERSAL SERVICE FUND" has the meaning set forth in
Section 8.4.
1.67 "USAA" refers to the United States Arbitration Act, 9 U.S.C.ss.1-16.
2. SERVICES; SERVICE ORDERS
2.1 Access One shall, in accordance with this Agreement, provide to
Xxxx.xxx those Telephone Exchange Services, Exchange Access
Services, Administrative Support Services, and Billing Services,
as defined and identified in the attached Exhibits A-C.
2.2 Orders for the Services shall be transmitted and processed in
accordance with Xxxx.xxx's then-current, standard order procedures
and guidelines, as well as any procedures set out in the
applicable Exhibit for a specific Service (as such procedures and
guidelines may be modified from time to time by Xxxx.xxx).
3. TERM
The initial term of this Agreement is 5 years from the Effective Date
and will continue thereafter for successive 1 year terms, unless (a)
either Party gives written notice to the other of its intent to
terminate this Agreement at least 90 days prior to the end of the then
current term, or, (b) either Party terminates this Agreement pursuant
to the terms of Sections 3 or 9 of this Agreement.
4. BILLING AND PAYMENT; RATES AND CHARGES
4.1 Xxxx.xxx shall pay Access One for the Services at the rates, fees
and charges set forth below and in Exhibit C hereto. As indicated
on Exhibit C, Access One shall provide the Services and related
facilities at rates specified therein.
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(A) Certain rate elements are marked with [X] on Exhibit C,
meaning that the specific rate level is yet to be
determined by the Parties. The Parties agree to negotiate
in good faith to establish specific rates within 14 days
after the Effective Date hereof. If the Parties fail to
agree, either Party may submit the matter to arbitration
pursuant to Section 22 of the Agreement. In such event, the
arbitrator shall establish rates which permit Access One to
recover their direct incremental cost of providing the
requested service or facility plus a return of 10 percent,
and such determination shall be binding upon the Parties.
(B) All stated pricing assumes that Xxxx.xxx and Access One
will become Affiliates within 1 year after the Effective
Date hereof through consummation of the transactions
contemplated by the Merger Agreement. In the event that the
Parties do not become Affiliates through consummation of
the transactions contemplated by the Merger Agreement
within 1 year after the Effective Date hereof, all pricing
will be automatically and immediately revised. In such
event, all services and facilities to be provided by Access
One to Xxxx.xxx pursuant to this Agreement shall be
provided at the direct incremental cost to Access One of
obtaining and providing such service or facility, without
xxxx-up, overhead allocation or profit to Access One, for
the remainder of the initial term. Provided, however, that
if the transactions contemplated by the Merger Agreement
are not consummated within 1 year after the Effective Date
hereof, for reasons that are not attributable to any action
or inaction of Access One or its Affiliates, then the
initial pricing shall not be so revised.
4.2 Access One shall invoice Xxxx.xxx via facsimile for the Services
and for any other sums due Access One on a monthly basis. All
invoices must itemize related circuit charges (and or credits) by
individual circuit components and must identify circuit charges by
their Service Order Number, Xxxx.xxx Circuit Identification Number
and Access One Circuit Identification Number. Recurring and
non-recurring charges must be separately itemized for each
circuit.
4.3 Each Invoice shall be paid by Xxxx.xxx in immediately available
U.S. funds so that the payment is received by Access One no later
than 30 days from the date of the Invoice. The Parties agree that
(a) the Invoice date will be the same day the Invoice is faxed to
Xxxx.xxx (with electronic confirmation of receipt), and (b) the
Invoice will be faxed on a Business Day and followed by a
confirmation copy sent by first class U.S. mail.
4.4 Xxxx.xxx shall have the right to dispute in good faith any charges
included on Access One invoices. In the event of any dispute, the
entire invoice, whether disputed or not, shall be paid as provided
in Section 4.3. All invoicing disputes that cannot be resolved by
negotiation will be resolved in accordance with the provisions of
Section 22. Notwithstanding any provisions contained in this
Agreement to the contrary, Xxxx.xxx's failure to pay any invoice
or portion thereof as a result of an unresolved dispute shall not
be considered a breach of the terms and provisions of this
Agreement.
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4.5 Xxxx.xxx shall not be responsible to pay any Access One charge not
invoiced to Xxxx.xxx within 90 days after such Access One charge
originated, provided that such timeframe shall be extended
concomitant to any tardiness attributable to delayed billing of
Access One by the ILEC(s). For purposes of this Section 4.5, a
recurring monthly Service charge will be deemed to originate on
the first day of the month (e.g., recurring charges for the month
of January will be deemed to originate on January 1). By way of
example, Xxxx.xxx will not be obligated to pay a recurring monthly
Service charge for the month of January if that charge is not
invoiced to Xxxx.xxx on or before that date that is 90 days after
January 1.
4.6 If at any time Xxxx.xxx pays Access One an amount that is in
excess of Xxxx.xxx's actual obligations to Access One under this
Agreement with respect to Services, Access One shall credit the
amount of the overpayment towards Xxxx.xxx's obligations next
coming due under this Agreement.
5. AUDITS
5.1 If Xxxx.xxx disputes the accounts receivable or Access One's
invoices under this Agreement, desires to check or verify
compliance by Access One with the terms of Section 6 of the
Agreement, or seeks to verify costs incurred by Access One in
providing services and facilities hereunder, Xxxx.xxx shall have
the right from time to time, but no more than once in any 3 month
period of the term of this Agreement or any renewal thereof, and
for a period of 90 days following the expiration of the term or
any renewal thereof, to have access to and conduct an inspection
of Access One's books, documents, and records as may, under
recognized accounting practices, contain information bearing on
the accounts receivable, Access One's invoices or compliance with
Section 6. Such audit shall be conducted:
(A) during normal business hours after 5 days advance written
notice if conducted by in-house Xxxx.xxx finance staff;
(B) during normal business hours after 30 days advance written
notice if conducted by an independent accredited accounting
firm of Xxxx.xxx's choice; and
(C) at Xxxx.xxx's expense.
6. MOST FAVORED PURCHASER
During the term of this Agreement and any subsequent extensions, the
rates for Services provided under this Agreement must be no greater
than the rates for substantially similar services made available to any
third party by Access One, whether under tariff, pursuant to a contract
or otherwise. If the rates under this Agreement are at any time greater
than the rates made available to a third party as set forth above,
Access One shall decrease the rates under this Agreement as necessary
to eliminate this discrepancy. Any rate adjustments required by this
Section 6 will be made retroactive to the date the lower rates were
made available to the third party. If it is determined that Access One
has not fully complied with the terms of this Section 6, Access One
shall refund to Xxxx.xxx of the difference between the dollar amount
that Xxxx.xxx paid for the affected Service and the dollar amount that
Xxxx.xxx would have paid for the affected Service had Access One been
in full compliance.
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7. DATA RETENTION
All End User invoicing, data, customer invoices, exemption certificates
and taxing procedures, regardless of format will be maintained for a
period of 7 years. All such information shall be treated as Proprietary
Information in accordance with the provisions of Section 12 of this
Agreement.
8. TAXES
8.1 FILING OF RETURNS
(A) Xxxx.xxx shall timely file, to the extent required by law,
all returns for federal, state and local sales, use,
excise, gross receipts or other taxes or tax like fees
("TAX" or "TAXES") imposed on or with respect to Xxxx.xxx's
services and pay or remit all these Taxes to the imposing
authority.
(B) Access One shall use, for the tax status of Xxxx.xxx's
End-Users, such information as may be supplied to Access
One by Xxxx.xxx regarding tax exemptions of End-Users who
use Xxxx.xxx's services.
(C) Access One is solely responsible for maintaining this tax
exempt information in an accurate and complete manner.
(D) Access One shall furnish Xxxx.xxx all information (in an
electronic format) in Access One's possession necessary for
Xxxx.xxx to file accurate and timely tax returns.
8.2 TAXES - CALCULATION AND BILLING
Whenever providing Billing services for Xxxx.xxx pursuant to this
Agreement:
(A) Access One shall use the same tax practice and procedures
to apply Taxes, including such taxes as sales taxes, local
school taxes, excise taxes, utility taxes, and any other
identified in the normal course of business, in accordance
with Access One's standard procedures on similar or
comparable services, unless notified in writing by Xxxx.xxx
to do otherwise. Access One shall implement any legislated
tax law or tax rate changes into its procedures as required
by applicable tax law for services billed by Access One.
(B) Access One shall not be entitled to retain or receive from
Xxxx.xxx any statutory fee or share of Taxes to which the
person collecting these Taxes is entitled under applicable
law.
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(C) Xxxx.xxx shall give Access One 60 days prior notice of Tax
billing changes, and Access One shall use its best efforts
to implement these changes within 60 days of notification.
(D) Access One shall be responsible for implementing any
legislated Tax rate changes on Taxes currently being
charged to End-Users on Xxxx.xxx's behalf, which are also
being billed for Access One's end users.
(E) Xxxx.xxx shall have the right to review Access One's tax
procedures and supporting documentation, and Access One
shall supply Xxxx.xxx with this documentation upon request
by Xxxx.xxx at a mutually agreeable location. Xxxx.xxx can
request Access One to change its tax procedures with
respect to applying and billing Taxes and Access One shall
implement such change.
(F) Xxxx.xxx shall hold Access One harmless from any liability
arising out of Access One's implementation of tax billing
changes while these changes are being implemented, except
to the extent arising out of Access One's negligent acts or
omissions or willful misconduct.
8.3 UNIVERSAL SERVICE ASSESSMENT
Whenever Access One provides Billing Services for Xxxx.xxx
pursuant to this Agreement, Access One shall xxxx and collect all
surcharges imposed by Xxxx.xxx for the recovery of federal or
state universal service recovery programs or similar assessments
(collectively, "USF"), in a manner, format and amount directed by
Xxxx.xxx.
8.4 TAXES/ADDITIONAL CHARGES
(A) Xxxx.xxx shall pay all sales, use, excise or other similar
consumption taxes, if any, that are by the terms of the
relevant statute or ordinance imposed upon the entity
receiving the Services provided under this Agreement. In
the event Xxxx.xxx believes it is exempt from any tax,
Xxxx.xxx will provide Access One with an exemption
certificate evidencing the claimed exemption, which Access
One shall honor. In no case will Xxxx.xxx be responsible
for any income taxes levied upon Access One's income, or
any real or personal property taxes assessed against Access
One or its property, including any gross receipts taxes
assessed in lieu of income or property taxes, or any
municipal franchise taxes. Notwithstanding anything to the
contrary in this Section 8.4, Xxxx.xxx may protest and
contest by appropriate proceedings any Tax for which it may
be liable under this Agreement.
(B) Xxxx.xxx shall not be obligated to pay any additional
charges other than those contemplated by this Agreement;
except that Xxxx.xxx may pay additional one time charges
where such charges are negotiated and agreed to by
Xxxx.xxx.
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8.5 TAX REPORTING.
Access One shall provide such reports to Xxxx.xxx as are
reasonably required by Xxxx.xxx to report and pay applicable
taxes and USF. Such reports shall be issued at intervals and
in formats reasonably directed by Xxxx.xxx.
9. TERMINATION
9.1 If the FCC, a State Commission or a court of competent
jurisdiction issues a rule, regulation, law or order that has the
effect of canceling, changing, or superseding any material term or
provision of this Agreement (collectively, "REGULATORY
REQUIREMENT"), then this Agreement will be deemed modified in such
a way as the Parties mutually agree is consistent with the form,
intent and purpose of this Agreement and is necessary to comply
with such Regulatory Requirement. Should the Parties not be able
to agree on modifications necessary to comply with a Regulatory
Requirement within 30 days after the Regulatory Requirement is
effective, then upon written notice either Party may, to the
extent practicable, terminate that portion of this Agreement
impacted by the Regulatory Requirement.
9.2 Either Party may terminate this Agreement upon the other Party's
insolvency, dissolution or cessation of business operations.
9.3 In the event of a breach of any material term or condition of this
Agreement by a Party, the other Party may terminate this Agreement
upon 30 days written notice, unless the breaching Party cures the
breach during the 30 day period. A breach that cannot be
reasonably cured within a 30 day period may be addressed by a
written waiver of this paragraph signed by the Parties.
9.4 Notwithstanding any other provision of this Agreement, Xxxx.xxx
may terminate this Agreement at any time by providing 30 days
advance written notice of termination to Access One.
9.5 In the event that the merger transaction contemplated in the
Merger Agreement is not consummated within 1 year after the
Effective Date of this Agreement, and such failure to close the
merger transaction is not attributable to any action or inaction
of Access One or its Affiliates, then Access One may terminate
this Agreement by providing 120 days advance written notice of
termination to Xxxx.xxx.
9.6 Notwithstanding anything contained in this Agreement to the
contrary, if either Party terminates this Agreement, then Xxxx.xxx
will have a reasonable time period to continue to use the
Services, while Xxxx.xxx procures and transitions its
telecommunications traffic to another service provider. Each Party
acknowledges that a reasonable time period is at least 120 days
and no more than 180 days from the date of termination. Access One
acknowledges that its failure to comply with the provisions of
this Section will cause irreparable harm to Xxxx.xxx that cannot
be adequately compensated for in damages, and accordingly
acknowledges that Xxxx.xxx will be entitled, in addition to any
other remedies available to it, to interlocutory and permanent
injunctive relief to restrain any anticipated, present or
continuing breach of this Section.
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10. WARRANTIES AND LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD
PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES RELATING TO OR ARISING FROM THE PROVISION OF
SERVICES, OR OTHERWISE RELATING TO THE PERFORMANCE BY EITHER PARTY OF
ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
DAMAGES BASED ON LOSS OF REVENUES, PROFITS OR BUSINESS OPPORTUNITIES,
WHETHER OR NOT ACCESS ONE OR XXXX.XXX HAD OR SHOULD HAVE HAD ANY
KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT THESE DAMAGES MIGHT BE
INCURRED; EXCEPT THAT THE FOREGOING IS NOT INTENDED TO LIMIT ANY
REMEDIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
11. INDEMNIFICATION
11.1 Each Party (the "INDEMNIFYING PARTY") shall indemnify and hold
harmless the other Party, its officers, directors, employees,
shareholders and agents (each an "INDEMNIFIED PERSON") against any
losses, lawsuits, claims, damages, liabilities, penalties,
actions, proceedings or judgments (each a "LOSS," and,
collectively, "LOSSES") to which an Indemnified Person may become
subject, related to or arising out of gross negligence or willful
misconduct by the Indemnifying Party in its performance under this
Agreement, or arising out of the negligence or willful misconduct
in its performance under Section 1.13 of Exhibit A.
11.2 Upon obtaining knowledge of a Loss, an Indemnified Person shall
promptly give the Indemnifying Party written notice of any Loss
that an Indemnified Person has determined has given or could give
rise to a claim for indemnification under this Section 11 (a
"NOTICE OF CLAIM"). A Notice of Claim must specify in reasonable
detail the nature and all known particulars related to the Loss
for which indemnification is sought under this Section 11, but
failure to give a Notice of Claim shall not release the
Indemnifying Party from indemnifying an Indemnified Person, unless
the Indemnifying Party is actually prejudiced thereby.
11.3 The Indemnifying Party shall assume the defense of any Loss that
is a claim by a third party against an Indemnified Person. An
Indemnified Person has the right, but not the obligation, to
participate, at its own cost and expense, in the defense or other
opposition of any Loss through legal counsel selected by it and
has the right, but not the obligation, to assert any and all
cross-claims or counterclaims that it may have. An Indemnified
Person shall, at the Indemnifying Party's expense:
(A) at all times cooperate in all reasonable ways with, make
its relevant files and records available for inspection and
copying by, make its employees reasonably available to and
otherwise render reasonable assistance to the Indemnifying
Party upon request; and
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(B) not compromise or settle any Loss without the prior written
consent of the Indemnifying Party.
11.4 If the Indemnifying Party proposes to settle or compromise any
Loss, the Indemnifying Party shall give written notice to that
effect (together with a statement in reasonable detail of the
terms and conditions of the proposed settlement or compromise) to
the Indemnified Person within a reasonable time prior to
effecting the settlement or compromise. Notwithstanding anything
contained in this Section to the contrary, an Indemnified Person
may object to the settlement or compromise of any Loss whereupon:
(A) the Indemnified Person shall assume the defense or other
opposition of this Loss; and
(B) the Indemnifying Party will be released from any and all
liability with respect to this Loss to the extent that
this liability exceeds the liability that the Indemnifying
Party would have had in respect of this settlement or
compromise.
11.5 To the extent that any terms of this Section 11 are inconsistent
with any terms of Section 8, any inconsistent terms of Section 8
prevail.
12. CONFIDENTIALITY
12.1 Each Party agrees that the following information is the
confidential and proprietary information or trade secrets
(collectively, "PROPRIETARY INFORMATION") of the disclosing party
and will remain the sole and exclusive property of the disclosing
party:
(A) all information furnished by the other Party that is
labeled "confidential;"
(B) all information with respect to which the recipient is
notified in writing that the information is being
transmitted on a confidential basis;
(C) the provisions of this Agreement;
(D) any information whatsoever with respect to the End-Users
and Services;
(E) the course of dealing between the Parties under this
Agreement; and
(F) End User billing data and account information as
referenced in Section 7 hereof.
12.2 Proprietary Information shall not include information that the
receiving party can demonstrate:
(A) is, as of the time of its disclosure, or thereafter
becomes part of the public domain through a source other
than the receiving party;
(B) was known to the receiving party as of the time of its
disclosure;
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(C) is independently developed by the receiving party without
access to the Proprietary Information of the disclosing
party; or
(D) is subsequently learned from a third party not under a
confidentiality obligation to the providing party.
12.3 Except as provided for in this Agreement, each Party shall:
(A) not make any disclosure of the Proprietary Information to
anyone other than its employees and agents who have a need
to know in connection with the performance of the Parties'
obligations under this Agreement;
(B) take measures to protect the confidentiality of the other
Party's Proprietary Information that, in the aggregate,
are no less protective than those measures it uses to
protect the confidentiality of its own proprietary
information;
(C) advise those to whom disclosure of Proprietary Information
is made of the confidential nature of the Proprietary
Information and of the prohibitions contained in this
Section 12;
(D) not duplicate the Proprietary Information, except as
reasonably necessary to perform their duties under this
Agreement; and
(E) not remove or destroy any proprietary or copyright notice
appearing on the Proprietary Information. Each Party shall
notify its employees and agents of their confidentiality
obligations with respect to the Proprietary Information
and shall require its employees and agents to agree to
comply with these obligations.
12.4 If the receiving party is requested or legally compelled by a
governmental agency to disclose any of the Proprietary
Information of the disclosing party, the receiving party agrees
that it will provide the disclosing party with prompt written
notice of these requests so that the disclosing party has the
opportunity to pursue its legal and equitable remedies regarding
potential disclosure.
12.5 Each Party acknowledges that its breach or threatened breach of
this Section may cause the disclosing party irreparable harm that
would not be adequately compensated by monetary damages.
Accordingly, in the event of any breach or threatened breach, the
receiving party agrees that equitable relief, including temporary
or permanent injunctions, is an available remedy in addition to
any legal remedies to which the disclosing party may be entitled.
12.6 Notwithstanding anything contained in this Section 12 to the
contrary, either Party may make disclosure to purchasers and
prospective purchasers of their respective companies, auditors,
attorneys, financial advisors, lenders and prospective lenders,
investors and prospective investors, provided that in each case
the recipient agrees in writing to be bound by the
confidentiality provisions set forth in this Section. In
addition, either Party may make disclosure as required by a court
order or as otherwise required by law, securities exchange or SEC
rules or regulations, or in any legal or arbitration proceeding
relating to this Agreement.
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12.7 Neither Party shall publish or use any advertising, sales,
promotions or other publicity materials that use the other
Party's name, logo, trademarks or service marks without the prior
written approval of the other Party. Each Party agrees not to
issue any publicity materials, press releases or other public
statements that refer to, or describe any aspect of, this
Agreement or the Services provided pursuant to this Agreement,
without the prior written approval of the other Party.
12.8 The Parties shall strictly adhere to all requirements of the Act
and FCC regulations governing the use and protection of Customer
Proprietary Network Information ("CPNI") in the provision of
Service(s) under this Agreement.
13. NOTICES
All notices, including but not limited to, demands, requests and other
communications required or permitted under this Agreement (not
including Invoices) shall be in writing and shall be deemed given: (i)
when delivered in person, (ii) 24 hours after deposit with an overnight
delivery service for next day delivery, (ii) the same day when sent by
facsimile transmission during normal business hours, receipt confirmed
by sender's equipment, or (iii) three business days after deposit in
the United States mail, postage prepaid, registered or certified mail,
return receipt requested, and addressed to the recipient Party at the
address set forth below:
For Access One: Xxxxx Xxxxxx
President
Access One Communications Corp.
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 407/000-0000
Facsimile: 407/313-1313
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For Xxxx.xxx Al Lawn
Vice President and General Counsel
Xxxx.xxx
0000 Xxxxx 000
Xxx Xxxx, Xxxxxxxxxxxx 00000
Telephone: 215/000-0000
Facsimile: 215/862-1085
14. COMPLIANCE WITH LAW
During the term of this Agreement, the Parties shall comply with all
local, state and federal laws and regulations applicable to this
Agreement and to their respective businesses. Further, each Party shall
obtain, file and maintain any tariffs, permits, certifications,
authorizations, licenses or similar documentation as may be required by
the FCC, a State Commission or any other governmental body or agency
having jurisdiction over its business ("AUTHORIZATIONS"). Upon the
request of a Party, which request shall not be more frequent than once
every 6 months (unless based on a request or an order of a governmental
body or agency having jurisdiction over either Party), the other Party
will provide copies of the requested Authorizations.
15. EFFECT OF TARIFFS
Xxxx.xxx and Access One are both Telecommunications Carriers and intend
that this Agreement be deemed an intercarrier agreement as between
them. Furthermore, to the extent this Agreement is subject to FCC
regulations, Xxxx.xxx and Access One agree that as an intercarrier
agreement this Agreement 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. The provision of
Services to Xxxx.xxx shall be governed exclusively by this Agreement,
and shall not be affected by any local, state or federal tariff
existing as of the date of this Agreement or subsequently filed by
Access One or any Affiliate of Access One. Access One agrees not to
file any federal or state tariff covering Services provided under this
Agreement, unless Xxxx.xxx gives its express, written prior consent to
such filing.
16. SOFTWARE DEVELOPMENT
The Parties mutually agree that Xxxx.xxx may identify and require
improvements and enhancements to software and systems of Access One
necessary or useful to provide the Services. In such event, Access One
shall engage in the development work specified by Xxxx.xxx, and
Xxxx.xxx shall reimburse the direct incumbent out-of-pocket costs of
such development efforts. Access One shall own only resulting software
improvements.
17. FORCE MAJEURE
Neither Party shall be liable under this Agreement for delays, failures
to perform, damages or any consequence thereof, caused by, or due to
fire, earthquake, flood, water, the elements, explosions, civil
disturbances, governmental actions, shortages of equipment or supplies,
unavailability of transportation or any other cause beyond its
reasonable control.
18. WAIVERS
No waiver of any term or condition of this Agreement is enforceable
unless it is in writing and signed by the Party against whom it is
sought to be charged. No failure or delay by either Party in exercising
any right, power or remedy will operate as a waiver of this right,
power or remedy, unless otherwise provided in this Agreement. The
waiver by either Party of any of the covenants, conditions or
agreements to be performed by the other or any breach thereof shall not
operate or be construed as a waiver of any subsequent breach of this
covenant, condition or agreement.
19. ASSIGNMENT
Neither Party may sell, assign or transfer any of its rights, duties or
obligations under this Agreement without the prior written consent of
the other Party and any assignment not in compliance with this Section
19 is void. Notwithstanding the foregoing, either Party may sell,
assign or transfer any of its rights, duties or obligations under this
Agreement to an Affiliate (whether by assignment, merger, transfer of
assets, sale of stock, operation of law or otherwise) without the prior
written consent of the other Party; except that the assignor shall
remain fully liable for all of the terms, conditions, duties, covenants
and other obligations under this Agreement. A Party, in its sole
discretion, may enforce the terms, conditions, duties, covenants and
other obligations under this Agreement against the assignor or assignee
upon the material breach of this Agreement by either the assignor or
assignee.
20. INDEPENDENT CONTRACTORS
20.1 Each Party shall perform its obligations under this Agreement as
an independent contractor and not as the agent, employee or
servant of the other Party.
20.2 Neither Party nor any person furnished by a Party will be deemed
employees, agents or servants of the other Party or entitled to
any benefits available under the plans for the other Party's
employees.
20.3 Each Party has and hereby retains the right to exercise full
control of and supervision over its own performance of the
obligations under this Agreement and retains full control over
the employment, direction, compensation and discharge of all
employees assisting in the performance of these obligations. Each
Party is solely responsible for all matters relating to payment
of its employees, including compliance with social security
taxes, withholding taxes and all other regulations governing
these matters. Each Party is responsible for its own acts and
those of its own subordinates, employees, agents and
subcontractors during the performance of that Party's obligations
under this Agreement.
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20.4 Neither Party may knowingly employ any person during the term of
this Agreement to perform services under this Agreement who is a
full or part-time employee of the other Party.
21. INTEGRATION
This Agreement and all Exhibits, schedules and other attachments
incorporated in this Agreement, represent the entire agreement between
the Parties with respect to the subject matter of this Agreement and
supersede and merge all prior agreements, promises, understandings,
statements, representations, warranties, indemnities and inducements to
the making of this Agreement relied upon by either Party, whether
written or oral.
22. GOVERNING LAW; ARBITRATION
This Agreement is governed by the laws of the Commonwealth of Virginia
without regard to any choice of law principles that could result in the
application of the laws of any other jurisdiction. Any dispute arising
out of or related to this Agreement which cannot be resolved by
negotiation shall be settled by binding arbitration in accordance with
the American Arbitration Association Arbitration Rules and Procedures
("AAA"), as amended by this Agreement. The costs of arbitration,
including the fees and expenses of the arbitrator, shall be shared
equally by the Parties unless the arbitration award provides otherwise.
Each Party shall bear the cost of preparing and presenting its case.
The Parties agree that this provision and the arbitrator's authority to
grant relief shall be subject to the United States Arbitration Act, 9
U.S.C. 1-16 et seq. ("USAA"), the provisions of this Agreement, and the
ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes. The
Parties agree that the arbitrator shall have no power or authority to
make awards or issue orders of any kind except as expressly permitted
by this Agreement, and in no event shall the arbitrator have the
authority to make any award that provides for punitive or exemplary
damages. The arbitrator's decision shall follow the plain meaning of
relevant documents, and shall be final and binding. The award may be
confirmed and enforced in any court of competent jurisdiction. All
post-award proceedings shall be governed by the USAA. Notwithstanding
the foregoing, the Parties hereby mutually agree that a disruption or
cessation of services provided by Access One hereunder could cause
damages to Xxxx.xxx that cannot be adequately remedied or compensated
through an award of monetary damages at law. Therefore, the Parties
mutually agree and consent that Xxxx.xxx may file an action seeking an
award of temporary injunctive relief during the pendency of any AAA
proceeding. Any such action brought by Xxxx.xxx under this Agreement
shall be venued in the state or federal courts of Virginia. The Parties
each consent to the jurisdiction and venue of these courts and waive
any right to object to this jurisdiction and venue.
23. CONSTRUCTION
This Agreement is the joint work product of both Parties. Accordingly,
in the event of ambiguity, no presumption may be imposed against either
Party by reason of document preparation.
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24. HEADINGS
The headings and numbering of sections and paragraphs in this Agreement
are for convenience only and shall not be construed to define or limit
any of the terms in this Agreement or affect the meaning or
interpretation of this Agreement.
25. THIRD PARTIES
The provisions of this Agreement and the rights and obligations created
under this Agreement are intended for the sole benefit of Access One
and Xxxx.xxx, and do not create any right, claim or benefit on the part
of any person not a Party to this Agreement, including End Users.
26. TRADE NAMES AND TRADEMARKS
All trade names, trademarks and service marks owned or employed by a
Party or any Subsidiary or Affiliate of that Party, used or employed in
the Party's business operation, shall remain the sole and exclusive
property of that Party, or such Affiliate, and such trade names,
trademarks and service marks shall not be used by the other Party
without the prior written consent of the Party or such Affiliate. Each
Party shall immediately discontinue any use of the other Party's marks
and names upon termination hereof.
27. UNENFORCEABILITY OF PROVISIONS
The illegality or unenforceability of any provision of this Agreement
does not affect the legality or enforceability of any other provision
or portion. If any provision or portion of this Agreement is deemed
illegal or unenforceable for any reason, there will be deemed to be
made such minimum change in the provision or portion as is necessary to
make it valid and enforceable as so modified.
28. CUMULATIVE RIGHTS AND REMEDIES
Except as may otherwise be provided in this Agreement, the assertion by
a Party of any right or the obtaining of any remedy under this
Agreement shall not preclude this Party from asserting or obtaining any
other right or remedy, at law or in equity, under this Agreement.
29. AMENDMENTS
Except as may otherwise be provided in this Agreement, any amendments
or modifications to this Agreement must be in writing and executed by
Access One and Xxxx.xxx.
30. SURVIVAL OF PROVISIONS
Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 22, 29 and 31 survive
the expiration or termination of this Agreement.
31. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
constitute an original, but all of which constitute one and the same
instrument.
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IN WITNESS WHEREOF, THE Parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
AGREED:
ACCESS ONE COMMUNICATIONS CORP. XXXX.XXX HOLDING CORP., INC.
By:/s/ Xxx Xxxxxx By: /s/ Xxxxxxxx X. Lawn IV
---------------------------- ------------------------------------
Name: Xxx Xxxxxx Name: Xxxxxxxx X. Lawn IV
------------------------- ----------------------------------
Title: CEO Title: EVP-General Counsel and Secretary
------------------------ ---------------------------------
Date:3-24-00 Date:03/24/00
-------------------------- -----------------------------------
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