CARRIER SERVICE AGREEMENT FOR INTERNATIONAL TERMINATING TRAFFIC
THIS AGREEMENT is made and entered into as of this 17th day of Sept. 1998, by
and between QWEST COMMUNICATIONS CORPORATION, (collectively referred to as
"Qwest" and or "QCC"), a Delaware corporation (hereinafter referred to as
"Customer"), with offices at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 and GLOBAL
COMMUNICATIONS, INC. (hereinafter referred to as "Service Provider"), with
offices at 0000 X. Xxxxxxxx Xxxx, Xxxxx #X-000, Xxx Xxxxx, Xxxxxx 00000,
Customer and Service Provider being collectively referred to herein as the
"Parties."
WITNESSETH:
WHEREAS, Service Provider owns and operates telecommunications
facilities and is in the business of providing dedicated packet switched
telecommunications services; and
WHEREAS, Service Provider is desirous of providing dedicated packet
switched telecommunications services to Customer on Service Provider facilities
pursuant to certain terms and conditions set forth in this Agreement; and
WHEREAS, Customer and its Affiliates (as defined in Section 10) are
desirous of having Service Provider provide such telecommunications service.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the Parties hereby mutually agree as follows:
1. Service to be Provided by Service Provider: Service Provider will provide the
following long-distance services: International Outbound, as more particularly
described in Exhibit A, (hereinafter collectively, "Service").
Customer shall access Service Provider's network via dedicated T-1 lines
("Access Lines") offered from local exchange carriers or alternate access
carriers (collectively, "Local Carriers") and paid for by Customer. If Customer
orders an Access Line from a Local Carrier, Customer will pay the Local Carrier
directly for the Access Line. If Customer requests Service Provider to order the
Access Line and same is permitted by the Local Carrier, Service Provider will
order the Access Line on behalf of Customer and will have the Local Xxxxxxx xxxx
Customer directly for the Access Line. Service shall be ordered according to the
procedures more particularly described in Exhibit B.
2. Term and Termination: The term of this Agreement shall commence on the date
this Agreement is made and entered into, terminating one (1) year thereafter
("Initial Term") or unless terminated earlier by Customer upon thirty (30) days
written notice to Service Provider. This Agreement shall be automatically
renewed in successive one-year periods ("Renewal Term") until terminated by
either Party providing the other with thirty (30) days' prior written notice.
Both the Initial Term and any Renewal Term shall be collectively referred to
herein as the "Term".
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If Customer fails to make payments of undisputed amounts when due and then does
not cure such failure within seven (7) days after receiving written notice
thereof from Service Provider, Service Provider may, in addition to any other
remedies available to it and without any further written notice to Customer,
immediately terminate this Agreement in its entirety and discontinue providing
Service.
3. Rates and Taxes: Customer will pay the monthly, non-recurring and usage
charges set forth in Exhibit A of this Agreement unless such charges are waived
by Service Provider. Each call will be billed in one (1) minute increments.
Customer will pay any applicable federal, state, or local taxes, surcharges, or
similar fees for the Service, as required by law to be paid by Customer.
Service Provider may, upon thirty (30) days written notice to Customer, increase
any of the rates for any of the countries set forth in this Agreement. Customer
may, upon written notice to Service Provider, terminate the Agreement and all
Service provided thereunder without further liability if Service Provider
increases any of the rates set forth in Exhibit A. In the event of such
termination, Customer shall pay Service Provider for all undisputed charges
incurred up through the date of termination.
4. Payment: Commencing on October 1st, 1998 and continuing for the remaining
Term of this Agreement, Customer shall provide the Service Provider in writing
with a monthly forecast of its projected traffic volumes, expressed in projected
minutes of use ("MOU"), to Mexico for the immediately succeeding calendar month
(the "Traffic Forecast"). Both parties agree that the Traffic Forecast is only
an estimate, is not conclusive of the minutes to be used by Customer, and should
not be relied upon by Service Provider.
Subject to the satisfaction of all terms and conditions hereunder, Customer
shall prepay to Service Provider one hundred percent (100%) of the projected
Services charges which would be due to Service Provider based on such Traffic
Forecasts (the "Advance Payment"). The Advance Payment will be determined by
assessing the rate of $.19 (or whatever the current rate is) per MOU times the
aggregate number of MOUs in the Traffic Forecast. Such Advance Payment shall be
paid to Service Provider on the first business day of each month, or at
Customer's sole discretion, the Advanced Payment may be divided up into
bi-monthly or weekly payments. The Advanced Payment shall be paid in accordance
with the following guidelines: (i) if the Advanced Payment is to be paid on a
monthly basis, it shall be paid on the first business day of the month; (ii) if
the Advance Payment is to be paid on a bi-monthly basis, it shall be paid on the
first business day of the month and on the 15th day of the same month, provided
the 15th is a business day and if not, the Advance Payment shall be paid on the
following business day; and (iii) if the Advance Payment is to be paid on a
weekly basis, it shall be paid on the first Monday of every week, provided that
Monday is a business day and if not, the Advance Payment shall be paid on the
following business day. On or prior to the first business day of each month, the
Customer shall inform Service Provider in writing which Advance Payment option
it shall choose (from options (i), (ii), and (iii) above) for that particular
month.
For example, on December 1st, 1998, Customer's forecast projects that it will do
twenty (20) million MOU of Mexican traffic for the month of December. Customer
decides to make the Advance Payment in accordance with option (ii) above and
informs Service Provider of this. On December 1st, Customer pays Service
Provider $1,900,000 ([20M MOUs x $0.19 (or whatever the current rate to Mexico
is at that time)] divided by 2) and on December 15th, Customer pays Service
Provider an additional $1,900,000.
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Within five (5) calendar days after the end of each particular month, Service
Provider shall provide Customer, via a reputable overnight courier service, with
a monthly invoice covering such month. Within ten (10) calendar days of
Customer's actual receipt of such invoice, the Parties shall reconcile the
invoice, including the Advance Payment, for the particular invoice month (the
"Reconciliation"). If the Advance Payment for such invoice month was less than
the actual undisputed invoice amount for such period, Customer shall pay the
difference between such amounts (the "Deficiency") within thirty (30) days after
the date of receipt of invoice, less disputed amounts. If the Advance Payment
was greater than the actual undisputed invoice amount for such period (the "Over
Payment"), the Customer shall deduct the amount of the Over Payment from
immediately succeeding Advance Payment unless this is the final month remaining
in the Term of the Agreement at which time the Service Provider shall pay to the
Customer this Over Payment. Upon the expiration or earlier termination of this
Agreement, Service Provider shall reimburse all Advance Payments not used to pay
for invoice amounts and accrued interest thereon to Customer within fifteen (15)
calendar days of the termination or expiration date.
Service Provider acknowledges and agrees that it shall not grant to any third
party any security interest, encumbrance or lien in, on or relating to such
Advance Payments prior to the legitimate recognition of such undisputed payments
as invoice payments following the Reconciliation each month.
During the Term of this Agreement, if Service Provider is also purchasing
Services from Customer, Customer shall have the right to offset the Advance
Payment for such amounts potentially owing to Customer from Service Provider.
Any disputes that Customer may have concerning an invoice must be brought to
Service Provider's attention within ninety (90) days of the date of receipt of
Service Provider's invoice and the Parties will cooperate in good faith to
resolve any such disputes within a forty-five (45) calendar day period
thereafter. If the dispute is not resolved during this period, then either Party
may seek arbitration in accordance with Section 12 below.
All payments made by Customer to Service Provider shall be done via a wire
transfer sent to the following address:
Account Name: Bear Xxxxxxx & Co.
Bank to transfer to: Citibank, New York
Bank Address: New York City, New York
ABA Number: 021-000089
Account Number: 0925-3186
Special instructions: For the benefit of ORIX Global Communications
Account #220-82687-1-0
Service Provider acknowledges and agrees that Customer shall be entitled to
terminate its obligation to make the Advance Payments immediately and without
notice upon: (i) Customer's determination that there is a material change in
Service Provider's financial condition during any time that Customer uses the
Services (ii) Service Provider fails to meet the Service Standards set forth in
Exhibit C and/or (iii) a change of control of Service Provider, as described in
Section 10 below. Termination of the Agreement as a result of one of the above
conditions shall be at the sole option of Customer.
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Service Provider shall xxxx for all Services rendered within ninety (90) days of
the scheduled billing date or shall forfeit the right to collect for such
charges. The Customer has the right to refuse payment for such charges billed
subsequent to the ninety (90) day period. The Service Provider and/or Customer
shall adjust any such charges from the Customer's service charges.
5. Warranties: Service Provider represents and warrants to Customer that it has
the right to provide to Customer the Service specified herein, and that it is an
entity, duly organized, validly existing and in good standing under the laws of
its origin, with all requisite power to enter into and perform its obligations
under this Agreement in accordance with its terms.
Service Provider represents and warrants to Customer that all Service rendered
by it hereunder shall be designed, produced, installed, furnished and in all
respects provided and maintained in conformance and compliance with applicable
federal, state and local laws, administrative and regulatory requirements and
any other authorities having jurisdiction over the subject matter of this
Agreement and it shall be responsible for applying for, obtaining and
maintaining all registrations and certifications which may be required by such
authorities. Service Provider shall secure and maintain in full force and effect
all licenses, permits and authorizations from all governmental agencies to the
extent that the same are required or necessary for the performance of its
obligations hereunder including without limitation registering or filing this
Agreement with the appropriate governmental agency in the event such
registration is required by local law.
Service Provider shall provide Service that meets generally accepted industry
service standards, including the standards set forth in Exhibit C ("Service
Standards"), attached hereto. In the event that Service Provider fails to meet
the Service Standards, Customer, may at its sole discretion, terminate the
Agreement immediately without further liability.
6. Maintenance/Repair: Service Provider shall provide maintenance and repair on
Services as set forth in Exhibit C and make available to Customer an escalation
procedure as described in Exhibit D, attached hereto.
7. Indemnification/Limitation of Liability: The Service Provider shall defend,
indemnify and hold Customer harmless from and against all claims, demands,
actions, causes of action, judgments, costs and reasonable attorneys' fees and
expenses of any kind arising from or related to any use of the Service or
otherwise arising under this Agreement. In no event shall either Party be liable
for any loss of profits, or for any indirect incidental, special, exemplary or
consequential damages.
8. Governing Law: This Agreement for Service is made pursuant to and shall be
construed and enforced in accordance with the laws in force in the State of New
York.
9. Confidentiality: Should confidential or proprietary information of either
Customer or Service Provider be disclosed to the other Party in the performance
of this Agreement, the Party receiving such confidential or proprietary
information (hereinafter "Recipient") hereby agrees to receive such information
in confidence, and take such precautions as may be necessary to protect same
from disclosure to others, during the Initial Term of this Agreement and for
three (3) years following termination of this Agreement. Precautions taken shall
be at least equivalent to Recipient's precautions with respect to its own
confidential and proprietary information, but in no event less than a best
efforts standard of care. ("Confidential Information" shall mean the
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proprietary and confidential data or information of a Party which is of tangible
or intangible value to that Party and is not public information or is not
generally known or available to that Party's competitors but is known only to
that Party and those of its employees, independent contractors, consultants,
customers or agents to whom it must be confided in order to apply it to the uses
intended, including, without limitation, information regarding that Party's
customers or prospective customers, marketing methods and business plans gained
by the other Party). Confidential Information shall not include information
which (i) at the time of disclosure to Recipient is in the public domain through
no acts or omission of Recipient; (ii) as shown by written records, is already
known by Recipient; (iii) is revealed to Recipient by a third party who does not
thereby breach any obligation of confidentiality and who discloses such
information in good faith; or (iv) is disclosed pursuant to a legal order to
disclose same to any governmental entity or pursuant to judicial or quasi
judicial action (so long as Recipient gives disclosing Party prompt written
notice sufficient to allow disclosing Party to seek a protective order or other
appropriate remedy). Recipient agrees to disclose only such confidential
information as is legally required and will use its best efforts to obtain
confidential treatment for any confidential or proprietary information so
disclosed.
101. Assignability: Neither Party may assign this Agreement or any of its rights
hereunder without the prior written consent of the other Party, which the other
Party may grant or withhold in its sole discretion. Notwithstanding the
foregoing, the Parties may assign this Agreement or any of their rights and
benefits hereunder without the consent of the other Party to any Affiliate
("Affiliate" defined as, "any entity that directly controls, is controlled by or
is under common control with that party") of such Party, to the surviving entity
into which such Party may merge or consolidate, or to any entity to which the
Party transfers all, or substantially all, of its business and assets, provided
that the assignor shall remain liable for all of its obligations hereunder and
such assignee shall in writing assume all obligations of the assignor hereunder
arising after the effective date of such assignment. Any prohibited assignment
or delegation shall be null and void. If during the Term of this Agreement, an
entity acquires a controlling interest in or substantially all of the assets of
Qwest, the acquiring entity or successor shall have the right to terminate this
Agreement without further liability, financial or otherwise.
11. Notices: Notices under this Agreement shall be in writing and delivered by
certified mail, return receipt requested, overnight courier, or by facsimile
(followed up by a telephone call to confirm receipt of facsimile) to the persons
whose names and business addresses appear below and such notice shall be
effective on the date of receipt or refusal thereof by the receiving Party.
If to Customer: Qwest Communications Corporation
Attn: Contract Manager/Legal Dept.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Voice: (000) 000-0000
Facsimile: (000) 000-0000
If to Service Provider: ORIX Global Communications, Inc.
0000 X. Xxxxxxxx Xxxx, Xxxxx #X-000
Xxx Xxxxx, XX 00000
Voice: (000) 000-0000
Facsimile: (000) 000-0000
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12. Arbitration: Any dispute arising between Service Provider and Customer in
connection with this Agreement, which is not settled to the mutual satisfaction
of Customer and Service Provider within forty-five (45) days (or such longer
period as may be mutually agreed upon) from the date that either Party informs
the other in writing that such dispute or disagreement exists, shall be settled
by arbitration conducted in Washington, DC in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect on the
date that such notice is given. The decision of the arbitrator shall be final
and binding upon the Parties, except for instances where misapplication of the
law has occurred, and judgment may be obtained thereon by either Party in a
court of competent jurisdiction. Each Party shall bear the cost of preparing and
presenting its case. The cost of arbitration, including the fees and expenses of
the arbitrator, will be shared equally by the Parties unless the award otherwise
provides.
13. Miscellaneous:
Service Provider shall have an account representative meet with Customer on a
quarterly basis to discuss recommendations for improvements and/or cost
reductions to Services. Further, the account representative shall advise
Customer as to any new technology that has become commercially available from
Service Provider and which shall assist Customer in improving the quality of
Services and/or reduce its costs.
This Agreement does not constitute either Party as the agent or legal
representative of the other Party and does not create a partnership or joint
venture between Customer and Service Provider. Neither Party shall have any
authority to enter into an agreement for or bind the other Party in any manner
whatsoever. This Agreement confers no rights of any kind upon any third party.
The failure of either Party to give notice of default or to enforce or insist
upon compliance with any of the terms or conditions of this Agreement shall not
be considered the waiver of any other term or condition of this Agreement.
No subsequent agreement among the Parties concerning the Service shall be
effective or binding unless it is made in writing by authorized representatives
of the Parties.
This Agreement sets forth the entire understanding of the Parties and supersedes
any and all prior agreements, arrangements or understandings relating to the
subject matter hereof. In the event of a conflict between this Agreement and any
of its Exhibits, the terms and conditions of this Agreement shall take
precedence.
If any part of any provision of this Agreement or any other agreement, document
or writing given pursuant to or in connection with this Agreement shall be
invalid or unenforceable under applicable law, said part shall be ineffective to
the extent of such invalidity only, without in any way affecting the remaining
parts of said provision or the remaining provisions of this Agreement.
This Agreement is non-exclusive. Nothing in this Agreement shall prevent
Customer or Service Provider from entering into similar arrangements with, or
otherwise providing services to, any other person or entity.
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Neither Party shall issue a news release, public announcement, advertisement, or
other form of publicity concerning the existence of this Agreement or the
supplies or services to be provided hereunder without obtaining the prior
written approval of the other Party.
If Service Provider is also purchasing services from Customer, Service Provider
warrants that it will not route any calls to Customer for the same countries to
which Customer is purchasing service from Service Provider.
Service Provider shall warrant, without limitation as to any time period, that
the Service, products, etc. will not incur any errors as a result of the century
date change in the year 2000.
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This Agreement constitutes the entire understanding of the Parties with respect
to the subject matter hereof, and it supersedes all prior or contemporaneous
oral or written agreements, understandings and representations with repeat
thereto.
Qwest Communications Corporation ORIX Global Communications, Inc.
Signature: /s/ XXXX X. XXXXXX Signature: /s/ XXXXX XXXXXX
------------------------ --------------------------
Printed Name: Xxxx X. Xxxxxx Printed Name: Xxxxx Xxxxxx
--------------------- -----------------------
Title: Director IFCO Title: Chief Operating Officer
---------------------------- ------------------------------
Date: September 25, 1998 Date: 9/17/98
----------------------------- -------------------------------
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EXHIBIT A
RATES PER COUNTRY AND ANCILLARY CHARGES
Country: Mexico $0.19 per minute
The meet-points (FOB) between the Parties are at the following locations:
- 0000 Xxxxx 000xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000
- Las Vegas, Nevada (Address is still being determined)
Service Provider is to use the Central Time Zone for billing purposes.
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EXHIBIT B
ORDERING PROCEDURES
(Service Provider to provide)
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EXHIBIT C
SERVICE STANDARDS
Service Provider's Responsibilities:
- Service Provider shall not transmit via satellite facilities regarding the
Services it is providing to Customer.
- Service Provider shall provide Service over its network at a monthly
availability rate of 99.99% free of errored seconds over a one month
calendar period.
- Service Provider shall be able to process data at a rate of 9,600bps and
below.
- There shall be no degradation of Service based on compression for high
speed data.
- The Service Provider shall be able to process a fax of any length without
disconnecting the call before completion.
- The blocking rate for Service shall not exceed P.01 (1 in 100 calls).
- Service Provider shall provide SS7 interconnection upon turn-up of Service
or within thirty (30) days of SS7 availability with the Service Provider.
- International Post Dial Delay ("IPDD") shall not be longer than what Qwest
has determined to be acceptable for any given country. (On average, IPDD
shall not exceed twenty (20) seconds or more).
- Service Provider's voice quality shall be of the highest quality containing
no echo, static, cross talk, or any other voice anomaly that would cause
distortion during the duration of a telephone call.
- Service Provider shall respond back to the Customer technician within one
(1) hour after Customer has reported a "Service Problem" (as defined
herein) to the Service Provider's Network Control Center ("NCC"). ("Service
Problem" is included but not limited to Service degradation, non-completion
of calls due to network busy conditions or other reasons, service
interruptions, etc.) The Service Provider's response shall include its plan
on how it shall correct the Service problem(s). Subsequently, Service
Provider's resolution of the Service problem shall not exceed two (2) hours
upon notification by Customer of the Service problem(s). If Service
Provider determines that the Service problem cannot be resolved within such
two (2) hour period, Service Provider shall provide a temporary reroute to
restore Service to Customer, at no additional cost to Customer. In
addition, Customer shall have the option to terminate the Service to any
affected country or terminate the entire Agreement immediately without any
liability to Customer. In the event of such termination, Customer shall pay
Service Provider for all undisputed charges incurred up through the date
the Service is terminated.
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- In the event that three (3) or more separate trouble tickets are placed to
Service Provider by Customer for any given country within a thirty (30) day
period, the Customer shall have the option to terminate the Service to the
affected country or terminate the Agreement immediately without further
liability. In the event of such termination, Customer shall pay Service
Provider for all undisputed charges incurred up through the date the
Service is terminated. Service Provider shall provide Customer with seven
(7) days a week, twenty-four (24) hours a day coverage in its NCC.
- Service Provider shall provide Customer with monthly written performance
reports that shall reflect Service Providers' performance (i.e., network
availability for Customer in a given month).
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EXHIBIT D
ESCALATION PROCEDURES AND CONTACT NAMES AND PHONE NUMBERS FOR TROUBLE TICKETS
Overland Park, Kansas Switch 000-000-0000
Xxxx Xxxxx Pager 0-000-000-0000 pin 064851 Home 000-000-0000
Xxxx Xxxxx Pager 0-000-000-0000 option 1 or 3
Xxxx Xxxxxxx 000-000-0000 Home KC 000-000-0000 LV 000-000-0000
Xxxxx Xxxxxx 000-000-0000
Xxxx Xxxxxx Pager 0-000-000-0000
Information for the Las Vegas, Nevada Escalations is to be determined in the
future.
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AMENDMENT TO CARRIER SERVICE AGREEMENT
This Amendment ("amendment") is made to the Carrier Service Agreement
("Carrier Service Agreement") of September 17, 1998, and is executed this 25th
day of September, 1998, by and between:
Qwest Communications Corporation, a Delaware Corporation, whose office
is located at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, U.S.A., hereinafter
referred to as "Qwest", and;
ORIX Global Communications, Inc., formed under the laws of Nevada,
whose office is located at 0000 X. Xxxxxxxx Xxxx, Xxxxx #000-X, Xxx Xxxxx,
Xxxxxx 00000, U.S.A., hereinafter referred to as "ORIX",
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, receipt of which is
hereby acknowledged and accepted, the parties agree:
1. The current rate schedule of $.19 shall be changed to $.18 per
minute.
2. This will be effective as of midnight, Las Vegas time, 25th of
September 1998.
3. All payments made by Customer to Service Provider shall be done
via a wire transfer sent to following:
Beneficiary; Orix Global Communications, Inc.
Bank: Silver State Bank
000 X. Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Qwest Communications Corporation.
/s/ [ILLEGIBLE], Director
-------------------------------------------
Acting herein for and on behalf of Qwest has hereto set his hand, who has full
powers of attorney.
ORIX Global Communications, Inc.
/s/ [ILLEGIBLE], COO
-------------------------------------------
Acting herein for and on behalf of ORIX has hereto set his hand, who has full
power of attorney.
AMENDMENT TO CARRIER SERVICE AGREEMENT
This Amendment ("amendment") is made to the Carrier Service Agreement
("Carrier Service Agreement") signed September 28, 1998, and is executed this
29th day of October, 1998, by and between:
Qwest Communications Corporation, a Delaware Corporation, whose office
is located at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, U.S.A., hereinafter
referred to as "Qwest", and;
ORIX Global Communications, Inc., formed under the laws of Nevada,
whose office is located at 0000 X. Xxxxxxxx Xxxx, Xxxxx #000-X, Xxx Xxxxx,
Xxxxxx 00000, U.S.A., hereinafter referred to as "ORIX",
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, receipt of which is
hereby acknowledged and accepted, the parties agree:
1. The current rate schedule for Mexico of $.18 shall remain the
same.
2. Mexico City traffic will be at the rate of $.15 1/2 per minute.
3. This will be effective as of midnight, Las Vegas time, 30th of
October 1998.
4. The NPA codes for Mexico City will be forwarded via email,
receipt of which is hereby acknowledged.
5. All payments made by Customer to Service Provider shall be done
via a wire transfer sent to following:
Beneficiary; Orix Global Communications, Inc.
Bank: Silver State Bank
000 X. Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Qwest Communications Corporation.
/s/ [ILLEGIBLE], Director
-------------------------------------------
Acting herein for and on behalf of Qwest has hereto set his hand, who has full
powers of attorney.
ORIX Global Communications, Inc.
/s/ [ILLEGIBLE], COO
-------------------------------------------
Actin herein for and on behalf of ORIX has hereto set his hand, who has full
power of attorney.
