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Exhibit 10.55
TRAFFIC CARRIAGE AGREEMENT
________________________________________________________________________________
This TRAFFIC CARRIAGE AGREEMENT ("Agreement") is hereby made and
entered into, as of this 16th day of October, 2000 (the Effective Date), by and
between XXXxxxx.xxx, Inc. ("Company" or "IPVC"), a corporation organized in the
United States ("U.S.") under the laws of the State of Arizona with its principal
offices located at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, and
Telic Communications, Inc., ("Customer"), a Delaware Corporation with its
principal offices located at 000 Xxxx 00xx Xxxxxx, XX, XX 00000. Company and
Customer are also referred to herein each as a "Party" and collectively as the
"Parties."
RECITALS:
WHEREAS, Company provides intercity transport of telecommunications
traffic with or without local origination and/or termination on a
carrier-to-carrier basis; and
WHEREAS, Customer provides end-to-end voice and/or data services to
subscribing individuals and/or entities; and
WHEREAS, Customer desires, pursuant to the terms and conditions set
forth herein, to purchase from Company traffic carriage services and Company is
willing, pursuant to the terms and conditions set forth herein, to provide the
requested services to Customer.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, undertakings, representations and warranties set forth
herein, and subject to the terms and conditions hereof, the Parties hereby agree
as follows:
1. TRAFFIC CARRIAGE SERVICES
1.1 Customer hereby orders from Company, and Company hereby agrees to
provide to Customer, at the rates and connectivity in accordance with the terms
and conditions set forth in this Agreement, the Traffic Carriage Services (the
Services) identified on attached Schedules and/or incorporated by reference
herein, which shall include one or more of the following connectivity, equipment
and/or IPVC Gateway requirements:
(1) Type 1
Transport (i) Receipt of traffic delivered by Customer
("Customer Traffic") over Customer-
provided transmission facilities
("Interconnection Facilities")
interconnected with:
(a) IPVC switching facility operated and
maintained by Company ("Switching
Facility").
(b) Customer purchase of IPVC Gateway located
at the customers origination and/or
termination site (ii) conversion, as
necessary, by Company of the Customer
Traffic from circuit-switched to
packetized; (iii) delivery of the
Customer Traffic by Company to a
designated Switching Facility, (iv)
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[*Portions of the document have been omitted and filed separately
with the Commission under a request for confidential treatment.]
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conversion, as necessary, by Company of the
Customer Traffic from packetized to circuit-
switched; and (v) delivery of the Customer
Traffic by Company to Interconnection
Facilities interconnected with the
terminating Switching Facility. Intercity
transport without origination or termination
shall be referred to herein as Type I
Interconnection Service.
(2) Type 2
Transport
(With
Origination only): (i) Receipt of Customer Traffic delivered by
Customer from the public switched telephone
network ("PSTN") over non-feature group
facilities at a local switching node operated
and maintained by Company ("Switching Node");
(ii) conversion, as necessary, by Company of the
Customer Traffic from circuit-switched to
packetized; (iii) delivery of the Customer
Traffic by Company over Company's Network to a
designated Switching Facility, (iv) conversion,
as necessary, of the Customer Traffic by Company
from packetized to circuit-switched; and (v)
delivery of the Customer Traffic by Company to
Interconnection Facilities interconnected with
the terminating Switching Facility and/or IPVC
customer purchased Gateway. Transport with local
origination only shall be referred to herein as
Type II Interconnection Service.
(3) Type III
Transport
(With
Termination
only): (i) Receipt of Customer Traffic delivered by
Customer over Interconnection Facilities
interconnected with a Switching Facility; (ii)
conversion, as necessary, by Company of the
Customer Traffic from circuit- switched to
packetized; (iii) delivery of the Customer
Traffic by Company over the Network to a
designated Switching Node, (iv) conversion, as
necessary, of the Customer Traffic by Company
from packetized to circuit-switched; and (v)
delivery of the Customer Traffic by Company over
non-feature group facilities to the PSTN for
termination at the called party location.
Transport with local termination only shall be
referred to herein as Type III Interconnection
Service.
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(4) Type IV
Transport (i) Receipt of Customer Traffic delivered by
(With Customer from the PSTN over non-feature group
Origination and facilities at a pre-designated company or
Terminating) customer Switching Node; (ii) conversion,
and/or purchase of IPVC gateway as necessary,
by Company of the Customer Traffic from
circuit-switched to packetized;
(iii) delivery of the Customer Traffic by
Company over the Network to a designated
company and/or customer Switching Node,
(iv) conversion, and/or purchase of IPVC
gateway as necessary, of the Customer
Traffic by Company from packetized to
circuit-switched; and (v) delivery of the
Customer Traffic by Company over non-feature
group facilities to the PSTN for termination
at the called party location. Transport with
both origination and termination shall be
referred to herein as Type IV Intercon-
nection Service.
1.2 Set forth on Schedule B (Domestic) or Schedule C (International),
attached hereto and incorporated by reference herein, is a list of the
Switching Facilities by geographic location and a list of the Switching Nodes
with the geographic areas associated therewith in which local origination
and/or local termination services are available (the "Service Areas").
1.3 Company reserves the right, in its sole discretion, to add and delete
Switching Facilities and Switching Nodes from Schedules B and C, hereto;
provided, however, that Company shall exercise reasonable, good faith efforts to
provide Customer with ninety (90) days' written notice in the event it deletes a
Switching Facility or a Switching Node from the Schedules B and C lists. Company
reserves the right to block or otherwise decline to accept Customer Traffic
originating in or destined for any geographic location other than a Service Area
identified on Schedules B and C.
1.4 Customer shall gain no right, title or interest in the Switching
Facilities, the Switching Nodes or the Network, and Company shall gain no
right, title or interest in the Interconnection Facilities or software, by
virtue of their performance of their respective obligations under this
Agreement.
1.5 Company may provide the Services to other entities utilizing the
Switching Facilities, the Switching Nodes or the Network, and Customer
acknowledges and agrees that nothing in this Agreement shall be deemed to
prohibit or otherwise limit Company from providing the Services to other
entities utilizing the Switching Facilities, the Switching Nodes or the Network.
1.6 The Services ordered hereunder are subject to credit approval. On the
Effective Date, Customer shall complete and submit to Company the credit
application attached hereto as Appendix A.
2. NETWORK INTERCONNECTION
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2.1 Customer is responsible for all costs associated with the physical
connection of Interconnection Facilities to the IPVC Switching Facilities and
agrees to cooperate with IPVC in the
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installation, operation, repair and maintenance of the Interconnection
Facilities (Type I Service, Type II Service, Type III Service and Type IV
Service).
2.2 Circuit capacity, signaling interfaces and format, and other
interconnection specifications for the Interconnection Facilities shall be as
reasonably designated by Company, based on good faith consultation with
Customer, reflective of Company's reasonable judgment regarding the most
efficient and cost effective manner of transporting the Customer Traffic.
Company shall provide Customer with such quantities of ports in the Switching
Facilities as Customer shall reasonably request up to the maximum number of
ports listed on Schedule A, hereto. Company may from time to time, but is not
obligated to, unilaterally increase the maximum number of ports available to
Customer.
2.3 Except as expressly provided otherwise herein, Company shall be solely
responsible for, and shall bear the entire cost of, interconnecting the Network
and the Switching Nodes with the PSTN within the Service Areas so as to provide,
as appropriate, origination and/or termination of Customer Traffic in
conjunction with Type II Service, Type III Service and Type IV Service.
3. NETWORK OPERATION
3.1 Customer shall be solely responsible for, and shall bear the entire
cost of, operating, maintaining and repairing the Interconnection Facilities
and shall do so in a manner consistent with industry standards.
3.2 Company shall be solely responsible for, and shall bear the entire cost
of, operating, maintaining and repairing the Switching Facilities, the Switching
Nodes and the Transport Network, and shall do so in a manner consistent with
industry standards. To the extent technologically and economically feasible,
reasonable and appropriate, Company may from time to time, but shall not be
obligated to, modify the configuration and capabilities of, and make such other
hardware and software modifications and upgrades to, the Switching Facilities
and/or the Switching Nodes as shall be reasonably required to accommodate the
Interconnection Facilities and the Customer Traffic. Company shall notify
Customer as far in advance as practicable, and consult with Customer in good
faith, before relocating or modifying the Switching Facilities or the Switching
Nodes.
3.3 Company shall exercise its reasonable best efforts to ensure the
continuous operation of the Switching Facilities, the Switching Nodes and the
Network. In the event that Company fails to maintain a reasonable blocking
standard, or one or more of the Switching Facilities, one or more of the
Switching Nodes and/or the Network, or a substantial part thereof, is out of
service for a continuous period of twenty-four (24) hours or more, or for
seventy-two (72) hours within any thirty (30) day period, it shall take such
actions as are necessary and appropriate to remedy these deficiencies, subject
to reasonable economic and technical constraints. In the event Company fails to
timely act in response to a Customer request, Customer may terminate this
Agreement pursuant to Section 10, hereof.
3.4 Company shall provide network monitoring and technical support for the
Services on a twenty-four (24) hour/seven (7) day a week basis.
3.5 In response to a trouble report received from Customer, Company shall
provide a status report to Customer. For non-critical troubles, Company shall
escalate in four (4) hour intervals the involvement of Company personnel
through intervening supervisory personnel to the Vice President and
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General Manager until the troubles have been resolved. For critical troubles,
Company shall promptly involve Customers account representative and escalate the
involvement of Company personnel in one (1) hour intervals. Critical troubles
shall include outages involving a Switching Facility or more than twenty-five
percent (25%) of the Network. Company shall use the same escalation procedures
in the event that it detects an outage through its network monitoring and shall
promptly notify Customer of any critical troubles.
4. TERM
4.1 This Agreement shall be effective as of the Effective Date and shall
continue in full force and effect for [***] unless earlier terminated pursuant
to Section 10, hereof. This Agreement shall be automatically renewed for [***]
unless a Party notifies the other Party in writing of its intent not to renew
the Agreement [***] prior to termination of the initial term or the then current
renewal term of the Agreement. The initial and all renewal terms shall be
referred to collectively herein as the Term.
4.2 Customer acknowledges that this Agreement and the performance of
Company hereunder are contingent upon Company's ability to obtain, retain and
maintain use of the Switching Facilities, the Switching Nodes and the Network at
rates and on terms and conditions acceptable to Company; and may be subject to
orders, regulations, rules and policies of the Federal Communications Commission
(FCC) and pertinent state regulatory commissions (State Commissions). In the
event that Company is unable to obtain, retain or maintain use of the Switching
Facilities, the Switching Nodes and the Network at rates and on terms and
conditions reasonably acceptable to Company or performance under this Agreement
by Company is held by the FCC, one or more State Commissions, or a court of
competent jurisdiction to violate any order, regulation, rule or policy of the
FCC or a State Commission, Company may terminate this Agreement, pursuant to
Section 10, hereof, without further liability to Customer. Company may also
terminate this Agreement at any time without liability to Customer in the event
that the Company's provision of any of the Services is deemed to be a common
carrier service or that the Company's provision of Type II, Type III or Type IV
Service, the extent provided hereunder, is deemed to be a telecommunications
service.
5. ADDITIONAL RESPONSIBILITIES OF COMPANY
5.1 Company shall not discriminate against Customer, the Interconnection
Facilities and/or the Customer Traffic in operating the Switching Facilities,
the Switching Nodes and/or the Network and/or in transiting traffic through the
Switching Facilities, the Switching Nodes and/or over the Network.
5.2 Company shall be solely responsible for, and shall bear the entire
cost of, interacting with the FCC and the State Commissions with respect to,
securing such governmental licenses, permits and other approvals and
authorizations as shall be necessary for the installation and operation of, and
ensuring the ongoing compliance with all pertinent legal and regulatory
requirements of, the Switching Facilities, the Switching Nodes and the Network.
5.3 To the best of its ability and knowledge, Company shall act in a
lawful, ethical and honest manner at all times in performing its obligations
under this Agreement. Without limiting the
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generality of the above, Company shall in performing its obligations under this
Agreement act in accordance with all laws, statutes and ordinances, all orders
of courts of competent jurisdiction, and all rules, regulations, policies and
orders of the FCC and pertinent State Commissions, to the extent such laws,
statutes, ordinances, orders, policies, rules and regulations are applicable to
the Services, the Switching Facilities, the Switching Nodes, the Network or
Company's activities hereunder.
5.4 At the reasonable request of Customer, Company shall no less
frequently than monthly provide to Customer in electronic or paper form such
usage data as Customer shall reasonably require to invoice its customers monthly
for originating and terminating calls.
5.5 During the Term and for one (1) year thereafter, Company shall not,
without the prior written consent of Customer, solicit, induce, attempt to
employ, or employ any officer or employee of Customer.
6. ADDITIONAL RESPONSIBILITIES OF CUSTOMER
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6.1 Individuals and entities with respect to whose traffic Company
provides the Services shall be customers of Customer (End Users) and not of
Company, and Customer shall be solely responsible for dealing with End Users.
Without limiting the generality of the above, Customer shall be responsible for
contracting with End Users for the provision of service, ordering, modifying and
terminating services for End Users, billing End Users and collecting amounts so
billed, performing customer service functions for End Users, including
responding to customer inquiries and complaints, reporting service outages and
other troubles, and ensuring that End Users utilize the Services only for lawful
purposes. Company shall not be required to deal directly with End Users.
Notwithstanding the above, Customer shall promptly report to Company all
complaints received from End Users which may have resulted from Company's
provision of the Services.
6.2 Customer shall be solely responsible for, and shall bear the entire
cost of, interacting with the FCC and the State Commissions with respect to,
securing such governmental licenses, permits and other approvals and
authorizations as shall be necessary for the installation and operation of, and
ensuring the ongoing compliance with all pertinent legal and regulatory
requirements of, the Customer Traffic and the Interconnection Facilities.
6.3 Customer shall not use, or allow the Services to be used, for any
unlawful or fraudulent purpose or in a manner, which will interfere with the use
of the Services, the Switching Facilities, the Switching Nodes or the Network by
others.
6.4 On the Effective Date, and thereafter on or before the last day of
each calendar month during the Term, Customer shall provide Company with a
written forecast of anticipated monthly level of Customer Traffic during the
immediately following calendar month.
6.5 During the Term and for one (1) year thereafter, Customer shall not,
without the prior written consent of Company, solicit, induce, attempt to
employ, or employ any officer or employee of Company.
6.6 During the Term, Customer shall maintain all insurance and/or bonds
required by law. Customer shall furnish Company with certificates of insurance
on the Effective Date.
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7. RATES AND CHARGES
7.1 Company shall charge Customer, and Customer shall pay to Company, the
usage-sensitive, recurring and non-recurring rates and charges set forth on
Schedule C, attached hereto and incorporated by reference herein, for the
Services provided by Company to Customer. The rates and charges set forth on
Schedule C are in lieu of any other tariffed or contractual discounts, special
pricing or term/volume commitments.
7.2 Company may add to charges assessed pursuant to Section 7.1 above, any
duty, levy or tax imposed by any governmental authority with respect to the
Services, excepting only taxes on or measured by the income of Company unless
Customer provides Company with valid and appropriate tax exemption certificates
for all applicable jurisdictions (federal, state and local). Customer shall be
responsible for properly charging taxes to End Users and for the proper and
timely reporting and payment of applicable taxes to the taxing authorities, and
shall defend and indemnify Company from payment and reporting of all applicable
federal, state and local taxes, including, but not limited to, gross receipts
taxes, surcharges, franchise fees, occupational, excise and other taxes (and
penalties and interest thereon), relating to the Services. Customer shall not be
excused from paying Company for the Services provided to Customer because all or
a portion of such Services were fraudulently used.
7.3 In computing usage-sensitive charges, usage of the Services shall be
[***] usage increment for domestic termination.
7.4 Company may pass through to Customer any amounts paid by it, directly
or indirectly, to (i) governmental authorities, (ii) entities acting on behalf
of governmental authorities, or (iii) local exchange carriers in conjunction
with its provision of the Services, including, without limitation, access
charges, regulatory fees, and assessments associated with universal service,
number administration, number portability, and telecommunications relay service,
as well as amounts it is required to pay to other entities as a result of
federal or state regulatory mandates, including, without limitation, payphone
service providers. Company reserves the right, upon written notice to Customer,
to increase the rates and charges set forth on any Schedule, hereto, in a
proportionate amount, in the event that the rates and charges paid by Company
for the services and facilities used to provide the Services are increased.
7.5 Immediately following the end of the Ramp-up Period set forth on
Schedule A, hereto Customer shall be liable for the monthly minimum usage charge
set forth on Schedule A (Minimum Monthly Commitment). In the event that Customer
fails to satisfy the Minimum Monthly Commitment in a given month, Customer shall
be billed in the amount of the Minimum Monthly Commitment rather than for its
actual usage of the Services.
8. PAYMENT TERMS
8.1 Rates and charges for the Services shall be pre-paid on estimated
weekly usage with a true-up at the end of the week. Usage sensitive charges can
or shall be billed in arrears. Recurring charges shall be billed in advance.
Nonrecurring charges shall be billed upon completion of the associated activity
on a weekly basis.
8.2 All charges shall be due and payable upon receipt of invoice
bearing those
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charges, unless otherwise specified (the Due Date). Payments shall be considered
past due if not received by Company on or before the Due Date. A late payment
charge not to exceed one and one-half percent (1.5%) of the past due balance may
be applied by Company to any amount not paid by Customer on or before the Due
Date. All payments shall be made by wire transfer:
Direct to: Xxxxx Fargo Bank N.A.
[***]
Beneficiary Bank (BBF): Xxxxx Fargo Banks
Scottsdale Airpark Office
Cost Center Branch: CC 2410
Beneficiary (BNF): XXXxxxx.xxx, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
[***]
[***]
8.3 In the event that Customer in good faith disputes a charge, it shall
so notify Company in writing, including in such notice an explanation and all
available supporting documentation (the Notice). Company shall respond to the
Notice within thirty (30) days of its receipt thereof and thereafter Company and
Customer shall attempt in good faith to resolve the dispute. In the event that
the Parties are unable to resolve the dispute, either Party may submit the
matter to arbitration pursuant to Section 17, hereof, in which event, the
dispute shall be resolved through binding arbitration. Customer shall pay all
disputed amounts in accordance with Section 8.2, above, subject to resolution of
the dispute. All invoices not disputed by Customer within thirty (30) days of
Customer's receipt thereof shall be final and binding upon Customer.
9. SECURITY
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9.1 In order to reasonably safeguard Company's interests, Customer shall
provide Company on the Effective Date with a suitable deposit as a guarantee of
payment of invoices for its use of the Services and the performance by Customer
of its obligations hereunder (Security Deposit"). The initial Security Deposit
shall be as set forth on Schedule A, hereto. The Security Deposit may be in the
form of cash or such irrevocable commercial letter of credit, bond, or other
instrument, or assurance as shall be reasonably acceptable to Company.
9.2 Company may require an increase in the Security Deposit at anytime
during the Term if (i) the amount of the Security Deposit is less than the
aggregate amount Company has billed Customer for use of the Services during the
immediately [***] preceding months, (ii) Customer fails to timely pay bills
rendered by it on [***] occasions during any [***] period, or (iii) Company
reasonably believes that due to Customers financial condition, additional
security is required to safeguard its interests.
9.3 Company may draw upon the Security Deposit at any time for payment of
any overdue and undisputed charges or other overdue amounts owed to it by
Customer. In the event that Company so
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draws upon the Security Deposit, Customer shall be required within five (5)
business days of written notice of such draw to replenish the amount drawn by
Company. Upon termination or expiration of this Agreement, Company may draw upon
the Security Deposit for payment of Customer's final xxxx or any other amounts
then owed to it by Customer.
10. TERMINATION/DEFAULT
10.1 This Agreement may be terminated without liability to the terminating
Party: (i) at any time by mutual agreement of the Parties; (ii) by Company upon
one (1) day written notice to Customer in the event that Customer fails to pay
to Company any amount due Company by the Due Date, if such breach is not cured
within the five (5) day notice period; (iii) by Company upon five (5) days
written notice to Customer in the event that Customer fails, directly or
indirectly, to satisfy its Minimum Monthly Commitment, if such breach is not
cured within the five (5) day notice period; (iv) by Company upon written notice
in the event that Customer fails to provide on the Effective Date, or increase
or replenish within five (5) days following Company's request therefore, the
Security Deposit; (v) by Company upon written notice to Customer in the event of
a transfer of a controlling interest in Customer; (vi) by Company upon written
notice to Customer pursuant to Section 4.2, hereof; (vii) by Customer upon
thirty (30) days written notice to Company pursuant to Section 3.3, hereof, if
Company has not remedied the deficiency within said thirty (30) day notice
period; (viii) by Customer upon thirty (30) days written notice to Company in
the event that Company increases the rates for the Services pursuant to the
final clause of Section 7.4, hereof, by in excess of twenty five percent (25%);
(ix) by either Party upon written notice to the other Party pursuant to Section
11.2, hereof; (x) by the non-breaching Party upon thirty (30) days written
notice to the breaching Party in the event of a material breach of this
Agreement by the other Party, if such material breach is not cured within the
thirty (30) day notice period; or (xi) immediately upon written notice by a
Party upon institution by or against the other Party of any proceeding for
relief under the Bankruptcy Code, or the appointment by a court of competent
jurisdiction of a receiver of the other Party's property.
10.2 In the event of a material breach by the Customer under this
Agreement, the Company, in addition to having the right to terminate this
Agreement without liability, may pursue such other remedies as may be available
to it at law or in equity. In the event of a material breach by Customer of this
Agreement, including, but not limited to, failure by Customer to timely pay any
amount due to Company, Company may immediately, at its sole discretion and
without liability to Customer, also (i) suspend the provision of the Services to
Customer; (ii) withhold from Customer delivery of billing records; and (iii)
draw upon the Security Deposit.
10.3 Neither termination nor expiration of this Agreement shall relieve a
Party of liabilities previously accrued hereunder.
11. LIMITATIONS ON LIABILITY
11.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY
WARRANTY, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY CONCERNING THE
FACILITIES AND SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
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11.2 THERE SHALL BE NO LIABILITY FOR DAMAGES, COSTS OR CLAIMS ARISING FROM
ANY EVENT THAT PREVENTS A PARTY FROM PERFORMING ITS OBLIGATIONS UNDER THIS
AGREEMENT IF THAT EVENT IS BEYOND THE REASONABLE CONTROL AND WITHOUT THE FAULT
OR NEGLIGENCE OF THE PARTY. WITHOUT DIMINISHING THE GENERALITY OF THE ABOVE,
NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES, COSTS OR CLAIMS ARISING FROM
SERVICES, FACILITIES OR EQUIPMENT NOT FURNISHED BY IT. ANY EVENT BEYOND THE
REASONABLE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF A PARTY SHALL
CONSTITUTE AN EXCUSABLE DELAY; PROVIDED, HOWEVER, THAT THE AFFECTED PARTY SHALL
PROMPTLY NOTIFY THE OTHER PARTY OF THE NATURE OF SUCH DELAY AND ITS ESTIMATED
DURATION. IN SUCH EVENT, THE PERFORMANCE OBLIGATIONS OF THE AFFECTED PARTY SHALL
BE EXTENDED FOR A PERIOD OF TIME EQUAL TO THE DURATION OF THE DELAY. IN THE
EVENT A DELAY CONTINUES FOR MORE THAN SIXTY (60) DAYS AND SUCH DELAY HAS A
MATERIAL ADVERSE IMPACT ON THE OTHER PARTY, SAID OTHER PARTY MAY, AT ITS OPTION,
TERMINATE THIS AGREEMENT WITHOUT FURTHER LIABILITY BY WRITTEN NOTICE TO THE
AFFECTED PARTY.
11.3 IN NO EVENT SHALL A PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING PROFITS) REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING
OUT OF THE PERFORMANCE OF THIS AGREEMENT.
11.4 In the event of a full or partial service outage of the Network
(Service Outage), Company shall provide Customer with a credit equal to [***];
provided, however, that a Credit shall not be due in conjunction with Service
Outages (i) caused by equipment, facilities, or services provided by Customer;
(ii) caused by scheduled maintenance or repair activities; or (iii) outage
caused by other offnet carriers. A Service Outage shall commence when the
Network ceases operation in whole or part and shall end when the Network
resumes full operation.
11.5 Except as expressly provided otherwise in this Section 10, each of
Company and Customer shall be liable to the other Party for any failure to
fully perform its obligations hereunder.
12. INDEMNIFICATION
12.1 Customer hereby agrees to defend, indemnify, and hold harmless
Company and Company's parents, employees, officers, managers, agents,
affiliates and subsidiaries from all claims and liabilities, including costs
and expenses and reasonable attorney's fees attributed to, arising out of or
resulting from (i) a material breach of this Agreement by Customer, including,
but not limited to, a failure of any Customer representation or warranty to be
true and correct in any material respect, or the negligence or willful
misconduct of Customer or Customer's parents, employees, officers, managers,
agents, affiliates or subsidiaries; (ii) the sale, use, adequacy, and
availability of the services provided by Customer to End Users; (iii)
allegations of libel, slander, infringement or copyright arising from or out of
material transmitted by Customer or End Users using the Services; (iv)
allegations of infringement of
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patents arising from use in connection with the Services, of apparatus and
systems of Customer or End Users; and/or (v) allegations of trademark
infringement and/or unfair competition arising from or associated with use of
the Services by Customer or End Users.
13. PROPRIETARY INFORMATION\CONFIDENTIALITY
13.1 Each Party acknowledges that during the Term the other Party (the
"Proprietary Party") may disclose to it, or it may receive in performing its
obligations under this Agreement, information which is considered proprietary,
confidential and/or competitively-sensitive by the Proprietary Party
("Proprietary Information") and agrees to take all reasonable and necessary
steps to preserve the confidentiality of all Proprietary Information, whether
communicated by the Proprietary Party, or received, in writing, electronically,
orally or otherwise. Proprietary Information shall include information and data
regarding or relating to present or future pricing, discount policies,
marketing strategies, commission plans, business plans and projections, sales
goals, profit margins, financial data, markets and suppliers, legal and
regulatory data, prospective and/or actual regulatory strategies, technical
information, techniques, new ideas, inventions, developments,
names/addresses/telephone numbers of Subscribers, credit histories and trade
names of End Users, rates of attrition, and such other confidential
engineering, technical, financial, business, marketing, promotional and sales
data as a Disclosing Party shall designate as "proprietary," either in writing
or orally, all of which are hereby identified and acknowledged to be
Proprietary Information. Proprietary Information shall also include information
and data Company obtains by virtue of its provision of the Services to
Customer. This Agreement and its contents shall also be deemed to be
Proprietary Information of both Parties.
13.2 The receiving Party shall use at least the same degree of care and
discretion it uses with regard to its own proprietary or confidential
information to prevent the disclosure, unauthorized use or publication of
Proprietary Information, including, but not limited to taking steps to: (i)
advise all receiving Party employees with access to the Proprietary Information
of the obligation to protect the Proprietary Information; and (ii) restrict
disclosure of the Proprietary Information solely to its employees with a need
to know and not disclose such Proprietary Information to any other parties. The
Proprietary Information shall neither be used, nor allowed to be used, by the
receiving Party for any purpose other than to facilitate the performance by the
receiving Party of its obligations hereunder nor shall the Proprietary
Information be disclosed to any third party without the Proprietary Party's
prior written consent.
13.3 This Section 13 shall not apply to (i) information which at the time
of disclosure was generally available to the public; (ii) information which
subsequent to its disclosure by the Proprietary Party to the receiving Party, is
published or otherwise becomes available to the public through any means other
than an act or omission of the receiving Party; (iii) information which was
previously known to the receiving Party free of any obligation to keep it
confidential or which is subsequently developed in good faith by the receiving
Party; and (iv) information rightfully acquired in good faith from a third party
on a non-confidential basis without breach of an agreement to maintain said
information in confidence. A receiving Party may disclose Proprietary
Information (i) if required to do so by law; or (ii) if ordered to do so by a
court or other governmental authority of competent jurisdiction; provided,
however, that a receiving Party shall provide the Proprietary Party prior
written notice of any such disclosure and exercise its best efforts, consistent
with sound business practice, to both afford the Proprietary Party an
opportunity to contest the disclosure and to limit the extent of the disclosure
to the maximum extent practicable.
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13.4 Proprietary Information disclosed to a Party is and shall remain
the property of the Proprietary Party. By disclosing Proprietary Information,
the Proprietary Party does not relinquish any of its proprietary rights and
interests therein and hereby specifically reserves all such proprietary rights
and interests to said Proprietary Information. A Party shall return (or, with
the consent of the Proprietary Party, which shall not be unreasonably withheld,
destroy) all Proprietary Information and all copies thereof, including, without
limitation, written and electronic copies, as well as all summaries, notes or
other documents, materials or things containing Proprietary Information, to the
Proprietary Party promptly upon the reasonable written request of the
Proprietary Party and upon termination of this Agreement.
13.5 The obligations set forth in this Section 13 shall survive any
termination of this Agreement.
14. RELATIONSHIP OF PARTIES
14.1 This Agreement constitutes each Party as an independent
contractor and not as a general or special agent or representative of the other
Party. Neither does this Agreement create a partnership or joint venture nor
confer on a Party status, power, or authority other than to the extent
expressly provided herein. Neither Party shall have any rights by virtue of
this Agreement in any other business ventures of the other Party or any
revenues, profits or losses derived there from.
15. INTELLECTUAL PROPERTY
15.1 Each Party retains the right, title and interest of the other
Party in and to its name, service marks, trademarks and copyrights (Trademarks)
and acknowledges that the other Party's Trademarks and the registrations thereof
are good, valid and enforceable in law and equity. Each Party agrees not to
engage in any activities, directly or indirectly, which may contest, dispute or
otherwise impair the right, title and interest of the other Party in and to its
Trademarks. Neither Party shall acquire or claim any right, title or interest in
or to the other Party's Trademarks through the performance of its or the other
Party's obligations under this Agreement.
16. ARBITRATION
16.1 Arbitrations under this Agreement shall be conducted in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Agreement, and under the
Commercial Arbitration Rules of the American Arbitration Association ("AAA").
The arbitration shall be conducted in Maricopa County, Arizona. The decision of
the arbitrator shall be final and binding upon the parties. Judgment upon the
arbitration award may be entered in any court having jurisdiction. In rendering
any decision or making findings of fact the arbitrator shall apply the express
intentions of the parties set forth in this Agreement and the laws of the State
of Arizona, including, without limitation, any applicable statutes, regulations
and binding judicial decisions, as such would be applied by the courts of the
State of Arizona and the United States District Court for the State of Arizona.
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17. MISCELLANEOUS
17.1 ASSIGNMENT. This Agreement may not be assigned by a Party without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld, and any attempted assignment without such consent shall
be void; provided, however, that Company may, without Customers consent, assign
its right to receive payment hereunder and the assignee shall thereafter have
the rights, powers and remedies of the Company; provided further that Customer
shall be deemed to consent to any assignment of this Agreement by Company to an
Affiliate so long as that assignment is undertaken in good faith.
17.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, APPLICABLE TO AGREEMENTS MADE
AND TO BE ENTIRELY PERFORMED WITHIN THE STATE OF ARIZONA, WITHOUT REGARD TO ITS
PRINCIPLES OF CHOICE OF LAW. THE PARTIES AGREE THAT ANY ACTION TO ENFORCE OR
INTERPRET THE TERMS OF THIS AGREEMENT SHALL BE INSTITUTED AND MAINTAINED ONLY IN
THE FEDERAL DISTRICT COURT FOR THE STATE OF ARIZONA, OR IF JURISDICTION IS NOT
AVAILABLE IN FEDERAL COURT, THEN A STATE COURT LOCATED IN MARICOPA COUNTY,
ARIZONA. CUSTOMER HEREBY CONSENTS TO THE JURISDICTION AND VENUE OF SUCH COURTS
AND WAIVES ANY RIGHT TO OBJECT TO SUCH JURISDICTION AND VENUE.
17.3 NOTICES. All notices, demands, requests, solicitations of consent or
approval, and other communications required or permitted hereunder shall be in
writing and shall be deemed to have been given when received by hand delivery,
telecopy (followed by notice transmitted, postage prepaid, by U.S. registered or
certified mail, return receipt requested), or overnight delivery service, with
acknowledged receipt, addressed to the other Party at the addresses listed below
for that Party, or to such other addresses which such Party shall have given for
such purpose by notice hereunder.
IF TO CUSTOMER: WITH A COPY TO (shall not constitute Notice):
xxxxx.xxx N/A
000 Xxxx 00xx Xxxxxx
XX, XX 00000
Facsimile: 212.758.7465
Attn: Xxxx Xxxxxxx
IF TO COMPANY: WITH A COPY TO (shall not constitute Notice):
XXXxxxx.xxx, Inc. Xxxxxxxx, Xxxxxxx & Salmon
0000 Xxxx Xxxxxxxx Xxxx, One Renaissance Square
Suite 202 Two North Central Avenue, Suite 1600
Scottsdale, Arizona 85260 Xxxxxxx, XX 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Attn: Xxxxxxx X. Will, Attn: I. Xxxxxxx Xxxxxxxx
President, COO
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17.4 AMENDMENT AND WAIVER. Unless otherwise provided herein, this
Agreement may be amended only by an instrument in writing duly executed by the
Parties. Any waiver by any Party of any breach of, or failure to, comply with
any provision of this Agreement by the other Party shall not be construed as,
or constitute, a continuing waiver of such provision, or a waiver of any other
provision hereof.
17.5 THIRD PARTIES. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto, and their respective assigns (as permitted
hereunder), heirs, successors and legal representatives. It is not the intent
of the Parties that there be any third party beneficiaries of this Agreement,
and this Agreement is exclusively for the benefit of the Parties hereto or
their respective assigns.
17.8 SURVIVAL. The covenants and agreements contained in this Agreement
with respect to payment of amounts due, confidentiality, indemnification and
non-solicitation shall survive termination and expiration of this Agreement.
The rights and obligations under this Agreement shall survive any merger or
sale of a Party and shall be binding upon the successors and permitted assigns
of each Party.
IN WITNESS WHEREOF, the Parties have caused this TRAFFIC CARRIAGE
AGREEMENT to be executed as of the day and year first above written.
COMPANY
IP XXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Will
---------------------------
Name: Xxxxxxx X. Will, President
CUSTOMER
TELIC, COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Xxxx X. Xxxxxxx, President
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SCHEDULE A
Terms and Conditions
--------------------------------------------------------------------------------
Interconnection Type of service requirements Type III
Pricing plan for service Options in combination
of Tier 1, 2, 3, 4 Tier 2 (Alliance Partner
concessions granted)
Term: Initial: [***]
Renewal: [***]
Number of
Renewal Terms: [***]
MultiCom
License of Software: Yes X No
--- ---
Ramp-up Period: [***]
Payment Terms: Pre-Paid
Initial Security Deposit: [***]
(Can be increased at
Company's sole discretion as
usage grows)
--------------------------------------------------------------------------------
Detailed description of Type of Service:
Type I:
Type II:
Type III: Hardware cross-connect, traffic transport & termination.
Type IV:
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SCHEDULE B-1
Company
Switching Facilities and Switching Nodes
--------------------------------------------------------------------------------
Switching Facilities:
Location Service Area
All Company On-net Markets NPA\NXX list provided
Atlanta
Chicago
Dallas
Los Angeles
Miami
New York
Phoenix
London
Switching Nodes:
Service Area
All Company On-net Markets NPA\NXX list provided
Lata Service Area Area Codes Lata Service Area Area Codes
---- ------------ ---------- ---- ------------ -------------------
000 X. Xxxx 000, 000 000 Xxx Xxxx Xxxxx 914, 212, 516, 718,
133 Poukeepsi, NY 914, 845 347, 646, 917, 315
140 Buffalo, NY 716 000 Xxxxxxxx Xxxxxx, XX 908
224 North Jersey 732, 201, 908 226 Capital, PA 717, 814
228 Philadelphia, PA 215, 610, 484, 267 000 Xxxxxxxxxx, XX 412, 724, 878
236 Washington, DC 202 238 Baltimore, MD 443, 410
224 Roanoke, VA 540 250 Lynchburg, VA 804
254 Charleston, WV 304 320 Cleveland, OH 216, 440
325 Akron, OH 330, 234 328 Dayton, OH 937
334 Auburn, IN 219 336 Indianapolis, IN 317
340 Detroit, MI 810, 248, 734, 313 346 Lansing, MI 517
000 Xxxxx Xxxxxx, XX 616, 231 356 SE/Milwaukee, WI 262, 414
358 Chicago, IL 312, 630, 773 362 Cairo, IL 618
420 Xxxxxxxxx, XX 000 000 Xxxxxxxxx, XX 704, 980
424 Greensboro, NC 336 426 Raleigh, NC 919
428 Wilmington, NC 910 430 Greenville, SC 864
432 Florence, SC 843 000 Xxxxxxxxxx, XX 000
000 Xxxxxxx, XX 770, 706, 678, 404 440 Savannah, GA 912
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Lata Service Area Area Codes Lata Service Area Area Codes
---- ------------ ---------- ---- ------------ ----------
000 Xxxxxxx, XX 912, 706 444 Albany, GA 912
446 Macon, GA 912 000 Xxxxxxxxx, XX 850
000 Xxxxxx Xxxx, XX 000 000 Xxxxxxxxxxxx, XX 904
454 Gainesville, FL 813, 352 000 Xxxxxxx Xxxxx, XX 407, 904
458 Orlando, XX 000, 000 000 Xxxxx, XX 954, 305
462 Louisville, KY 502 000 Xxxxxxxxx, XX 270
000 Xxxxxxxxxx, XX 859 468 Memphis, TN 901
470 Nashville, TN 615 000 Xxxxxxxxxxx, XX 423
474 Knoxville, TN 865 476 Birmingham, AL 205
477 Huntsville, AL 256 480 Mobile, AL 334
000 Xxx Xxxxxxx, XX 504 000 Xx. Xxxxx, XX 000
000 Xxxxxxxxxx, XX 573 524 Kansas City, MO 000
000 Xxxxxx, XX 214, 000 000 Xxxxxxx, XX 713, 281, 832
628 Minneapolis, XX 000, 000, 000 Xxx Xxxxxxx, XX 213, 323, 909
763, 952
732 San Diego, CA 858 000 Xxxxxxxxxxx, XX 000, 860, 475, 959
922 Cincinnati, OH 513 000 Xxxx Xxxxx, XX 941
949 Fayetteville, NC 910 000 Xxxxx Xxxxx, XX 252
952 Tampa, FL 000 000 Xxxxxxxxxxx, XX 904, 850
956 Bristol, TN 423 978 Olney, IL 618
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SCHEDULE B-2
Customer
Switching Facilities and Switching Nodes
--------------------------------------------------------------------------------
Switching Facilities:
Location Service Area
All Company On-net Markets NPA\NXX list provided
Switching Nodes:
Location Service Area
All Company On-net Markets NPA\NXX list provided
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SCHEDULE C
RATES AND CHARGES
-------------------------------------------------------------------------------
Usage Sensitive Charges (see Schedule D for On Net LATAs)
ON NET TERMINATION PRICING
--------------------------
0 - 150,000 minutes [***] per minute on net
151,000 - 200,000 minutes [***] per minute on net
Tier 5
200,001 - 1,000,000 minutes [***] per minute on net
Tier 4
1,000,001 - 3,000,000 minutes [***] per minute on net
Tier 3
3,000,001 - 5,000,000 minutes [***] per minute on net
Tier 2
5,000,001 + minutes [***] per minute on net
Tier 1
OFF NET TERMINATION PRICING
---------------------------
All Off Net LATAs [***] per minute off net
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SCHEDULE C
Rates and Charges (continued)
Toll Free 800 Origination (including termination) [***]
(1) CALLS TERMINATING IN THE FOLLOWING CITIES HAVE THE FOLLOWING SURCHARGES
(COMPANY AGREES TO WAIVE CHARGES SHOULD THE CHARGES BE WAIVED TO COMPANY BY
COMPANY'S SUPPLIERS):
Metro New York City (does not include New Jersey) -- Day -- [***]
Evening -- [***]
Night/Weekend -- [***]
Metro Chicago -- [***]
San Diego -- Day -- [***]
Evening -- [***]
Night/Weekend -- [***]
Columbus, OH -- [***]
DOMESTIC GATEWAYS AND EQUIPMENT $0
INTERNATIONAL GATEWAYS AND EQUIPMENT $0
MULTICOM MONTHLY FEES $0
RECURRING MONTHLY CHARGES TO BE DETERMINED
NON-RECURRING CHARGES TO BE DETERMINED
PER MINUTE BILLING INCREMENTS
Initial minute [***]
Subsequent Minutes [***]
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SCHEDULE D
IPVC On-Net LATA LIST WITH AREA CODES
--------------------------------------------------------------------------------
On Net Pricing [***]
All Others [***]
On Net Lata Area Codes Route
--------------------------------------------------------------------------------
132 NEW YORK METRO NEW YORK 914, 212, 516 MIA
000 XXXXXXXXXXXX XXX XXXX 914 MIA
000 XXXXXX XXX XXXX 315 MIA
136 SYRACUSE NEW YORK 315 MIA
000 XXXXXXXXXX XXX XXXX 716 MIA
140 BUFFALO NEW YORK 716 MIA
000 XXXXX XXXXXX XXX XXXXXX 000, 201, 908 MIA
226 CAPITAL PENNSYLVANIA 717, 814 MIA
228 PHILADELPHIA PENNSYLVANIA 215, 610 MIA
230 ALTOONA PENNSYLVANIA 814 MIA
000 XXXXXXXXX XXXXXXXXXXXX 000 XXX
000 XXXXXXXXXX XX 703 MIA
000 XXXXXXXXX XXXXXXXX 443 MIA
000 XXXXXXXX XXXXXXXX 804 MIA
000 XXXXXXX XXXXXXXX 757 MIA
320 CLEVELAND OHIO 216 MIA
324 COLUMBUS OHIO 614 MIA
000 XXXXXXXXXXXX XXXXXXX 317 MIA
000 XXXXXXX XXXXXXXX 000, 248, 734 MIA
000 XXXXX XXXXXX XXXXXXXX 000, 231 MIA
000 XXXXXXX XXXXXXXX 000 XXX
000 XXXXXXXXX XXXXX XXXXXXXX 704 MIA
424 GREENSBORO NORTH CAROLINA 336 MIA
426 RALEIGH NORTH CAROLINA 919 MIA
000 XXXXXXX XXXXXXX 404, 770, 706, 678 ATL
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440 SAVANNAH GEORGIA 912 MIA
000 XXXXXXX XXXXXXX 912 MIA
000 XXXXXX GEORGIA 912 MIA
000 XXXXX XXXXXXX 912 MIA
000 XXXXXXXXXXXX XXXXXXX 904 MIA
454 GAINESVILLE FLORIDA 813 MIA
000 XXXXXXX XXXXX XXXXXXX 407, 904 MIA
458 ORLANDO FLORIDA 407 MIA
000 XXXXXXXXX XXXXXXX 000, 305 MIA
000 XXXXXXX XXXXXXXXX 901 MIA
000 XXXXXXXXX XXXXXXXXX 615 MIA
000 XXX XXXXXXX XXXXXXXXX 504 MIA
520 ST LOUIS MISSOURI 314 MIA
524 KANSAS CITY MISSOURI 816 MIA
000 XXXXXX XXXXX 214, 817 DAL
000 XXXXXX XXXXX 512 MIA
000 XXXXXXX XXXXX 713 MIA
000 XXX XXXXXXX XXXXX 210 MIA
000 XXXXXXXXXXX XXXXXXXXX 612, 651 MIA
656 DENVER COLORADO 303 MIA
660 UTAH 801 MIA
664 NEW MEXICO 505 MIA
666 PHOENIX ARIZONA 602, 480, 623 PHX
000 XXXXXXXX XXXXXX 503 MIA
000 XXXXXXX XXXXXXXXXX 206 MIA
721 PAHRUMP NEVADA 702 MIA
000 XXX XXXXXXXXX XXXXXXXXXX 415, 650 MIA
000 XXX XXXXXXX XXXXXXXXXX 000, 323, 606, 909 MIA
000 XXX XXXXX XXXXXXXXXX 858 MIA
000 XXXXXXXXXXX XXXXXXXXXX 606 MIA
000 XXXXXXXX XXXXXXXXXX 408 MIA
738 STOCKTON CALIFORNIA 408 MIA
920 CONNECTICUT 203, 860 MIA
922 CINCINNATI OHIO 513 MIA
000 XXXX XXXXXXXXXXXX 814 MIA
000 XXXXXXXXXXXXXXX XXXXXXXX 804 MIA
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000 XXXXX XXXXXXX 813 MIA
000 XXXXXXXXXXX XXXXXXX 904 MIA
974 ROCHESTER NEW YORK 315, 716 MIA
XXXX.xxx is not responsible for any errors and/or charges incurred based on
this LATA list.
Calls billed in [***] increments.
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_______________________________________________________________________________
XXXXXXX.XXX, INC.
CONSUMER CREDIT APPLICATION
Name:____________________________________________
Address:_________________________________________
City, State & Zip________________________________
Type of Business:________________________________
Circle One:
C-Corporation S-Corporation Partnership LLC Sole Proprietorship
Date Established:________________________________
Employer Identification Number:__________________
Contact Person & Title:__________________________
Phone:_____________________ Fax:_________________
Email:____________________________
BANK INFORMATION
Name:____________________________________________
Contact Person:__________________________________
Branch Location:_________________________________
Phone:______________________ Fax:________________
Account Number:__________________________________
TRADE REFERENCES
Name:____________________________________________
Contact Person:__________________________________
Account Number:__________________________________
Phone:___________________ Fax:______________________
Name:____________________________________________
Contact Person:__________________________________
Account Number:__________________________________
Phone:___________________ Fax:______________________
Name:____________________________________________
Contact Person:__________________________________
Account Number:__________________________________
Phone:___________________ Fax:______________________
XXXXXXX.XXX,INC.
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CONSUMER CREDIT APPLICATION (CONTINUED)
We are providing the above information for the purpose of obtaining credit
and do hereby warranty that it is true. We hereby authorize the references
listed above to release financial information, including bank account
information, and credit reports to XXXxxxx.xxx, Inc.
------------------------------- ----------------------
Signature Title
------------------------------- ----------------------
Printed Name Date
Please return completed form to: XXXxxxx.xxx, Inc. -- Account Manager
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
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