BROKER CONTRACT
THIS AGREEMENT is made this 22nd day of February , 2001, between Panther
Telecom, Inc. ("Broker") and (the Company).
WHEREAS, the Company is a reseller of wholesale international long-distance
minutes;
WHEREAS, Broker has offered to broker the purchase of international
long-distance minutes from the Company by Broker's customers;
WHEREAS, the parties agree that Broker should be compensated for its services
as a broker;
NOW THEREFORE, in consideration of their mutual promises made herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged
by each party, the parties, intending to be legally bound, hereby agree as
follows:
1. The parties agree that the foregoing recitals are true and correct and
incorporated herein by this reference.
2. The Company agrees that the per-minute cost to Broker shall be as set forth
on Exhibit A. The rates on Exhibit A may be changed upon seven (7) days'
written notice by to Broker.
3. Every Broker customer that wishes to purchase the above countries from the
Company will sign a standard contract. Each billing cycle, will forward to the
customer invoices at the above per-minute costs, plus Broker's xxxx-up. Broker
may not change its xxxx-up without thirty (30) days' prior written notice to
the Company. The Company will forward the payment due Broker no later than five
(5) business days after receipt of a customer payment. The Company shall have
no duty to pay Broker unless the Company, is paid by Broker's customer.
4. This agreement shall remain in effect for as long as Broker's customers
purchase minutes of usage from the Company. In the event all of Broker's
customers terminate their contracts to purchase-minutes from the Company, this
agreement will also terminate upon the payment of all final amounts due.
5. The parties further agree that Broker is only a broker in any transaction
between the Company and Broker's customers, and that any actual purchase of
minutes from the Company is not Broker's responsibility but solely that of
Broker's customers pursuant to the contracts assigned to the Company. Broker
shall not be deemed an agent of the Company or of Broker's customers for any
purposes whatsoever. Broker makes no representations or warranties (express or
implied) concerning the character or financial soundness of any Broker customer
introduced to the Company in relation to this agreement.
6. Liability; General Indemnity. IN NO EVENT WELL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES
OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR
CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY MANNER FROM THIS
AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS HEREUNDER, THE
LIABILITY OF THE COMPANY AND BROKER WITH THE RESPECT TO THE INSTALLATION
(INCLUDING DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE REPAIR,
INTERRUPTION, OR RESTORATION OF ANY SERVICE OR FACILITIES OFFERED UNDER THIS
AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THIS
AGREEMENT TO THEDURING WHICH SERVICES WERE AFFECTED. FOR THOSE WITH MONTHLY
RECURRING CHARGES, THE LIABILITY OF THE COMPANY AND IS TO AN AMOUNT EQUAL TO THE
PROPORTIONATE MONTHLY RECURRING FOR THE PERIOD DURING WHICH SERVICE WAS
AFFECTED.
7. General Indemnity. In the event parties other than the Company and Broker
shall have use of the Service, then:
a. The Company agrees to forever indemnify and hold Broker harmless
from and any and all claims, demands, suits, actions, losses, damages,
assessments or payments which may be asserted by said parties arising
out of or relating to any defect in the Service claimed by a customer
of the Company
b. Broker agrees to forever indemnify and hold the Company
harmless from and any and all claims, demands, suits, actions, losses,
damages, assessments or payments which may be asserted by said parties
arising out of or relating to any defect in the Service claimed by a
customer of Broker.
8. Force Majeure. If either party's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond that party's reasonable control including, but not limited to, acts of
God, fire, explosion, vandalism, cut, storm or other similar occurrence, any
law, order, regulation, direction, action or request of the United States
government or state or local governments, or of any department, agency,
commission, court, bureau, corporation or other instrumentality of any one or
more said governments, or of any civil or military authority, or by national
emergency, insurrection, riot, war, strike, lockout or work stoppage or other
labor difficulties, supplier failure, shortage, breach or delay, then such
party shall be excused from such performance on a day-to-day basis to the
extent of such restriction or interference. Such party shall use reasonable
efforts the circumstances to avoid or remove such causes of nonperformance and
shall proceed to perform with reasonable dispatch whenever such causes are
removed or cease. This provision shall not, however, either party from making
any payment when due.
9. Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid first class mail,
by facsimile or other means of electronic communication or by delivery as
hereafter provided. Any such notice or other communication, if mailed by
prepaid first-class mail at any time other the Company during a general
discontinuance of postal service due to strike, lockout or otherwise shall be
to been received on the fourth business day after the postmarked date thereof;
or if sent by facsimile or other means of electronic communication, shall be
deemed to have been given when transmitted provided that the sender shall have
received a transmission report indicating successful transmission of all of the
pages of the notice to the correct facsimile number and has sent a confirmation
copy of the notice by first-class pre-paid mail, except that if the
transmission of such facsimile does not occur on a normal business day within
normal business hours at the place to which it is addressed, the notice shall
be deemed given on the next following business day. For these purposes business
day shall mean any day other than Saturday. Sunday or public holiday and
"business hours" shall mean 9:00 am to 5:00 PM in a business day; or if
delivered by hand, shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority
to accept deliveries on behalf of the addressee. Notice of change of address
shall also be governed by this section. In the event of a general
discontinuance of postal service due to strike, lock-out, or otherwise, notices
or other communications shall be delivered by hand or sent by facsimile or
other means of electronic communication and shall be deemed to have been
received in accordance" with this section. Notices and other communications
shall be addressed as follows:
In the case of the Company
In the case of Broker:
10. No Waiver. No term or provision of this Agreement shall be deemed
waived and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented. No consent by any party to or waiver of, a breach or default by the
other, whether express or implied, shall constitute a consent to, waiver of, or
excuse for any different or subsequent breach or default.
11. Partial Invalidity; Government Action.
a. Partial Invalidity. If any term or provision of this Agreement
shall be found to be illegal or unenforceability, then,
notwithstanding such illegality or unenforceability, this Agreement
shall remain in full force and effect and such term or provision shall
be to be deleted.
b. Government Action. Upon thirty (30) days prior notice, either
party shall have the right, without liability to the other, to cancel
an affected portion of the Service if any material rate or term
contained herein and relevant to the affected Service is substantially
changed or found to be unlawful or the relationship between the
hereunder is found to be unlawful by order of the highest court of
competent jurisdiction to which the matter
is appealed, the Federal Communications Commission, or other local,
state or federal government authority of competent jurisdiction.
12. Exclusive Remedies. Except as otherwise specifically provided for
herein, the remedies set forth in this Agreement comprise the exclusive
remedies available to either party at law or in equity.
13. Use of Service. The Company and Broker will provide the Service
specified hereunder upon condition that the Service shall not be used for any
unlawful purpose. The provision of Service will not create a partnership or
joint venture between the parties or result in a joint communications service
offering to the third parties.
14. Choice of Law; Mediation; Forum.
a. Law. This Agreement shall be construed under the laws of the
State of Florida without regard to choice of law principles.
b. Mediation. Any dispute arising out of or relating to this
Agreement which has not been resolved by the good faith effort of the
parties, will be settled by binding mediation conducted expeditiously
in accordance with the rules of mediation promulgated by the Supreme
Court of the State of Florida, before a mediator appointed by the firm
of Mediation, Inc., which mediator shall have served as a judge in and
for the State of Florida, and judgment upon the award rendered by the
mediator(s) may be entered by any court with jurisdiction. The location
of the mediation shall be Miami, Florida. The cost of the mediation,
including the fees and expenses of the mediator(s), shall be shared
equally by the parties unless the mediation award provides otherwise.
Each party shall bear the cost of preparing and presenting that party's
case. The mediator(s) are not empowered to award damages in excess of
compensatory damages and each Party irrevocably waives any damages in
excess of compensatory damages.
c. Forum. Any civil action or other legal proceeding arising
out of or relating to this Agreement or any dealings between Broker, on
the one hand, and the Company and/or the Company's officers, directors,
employees, or agents, on the other hand, whether brought before or
after any termination of this Agreement, shall be brought and heard
only in a state or federal court located in Miami, Florida and the
parties hereto expressly waive any rights under any law or rule to
cause any such proceeding to be brought and heard in any other
location. Broker and the Company consent to jurisdiction in any state
or federal court in Miami, Florida in any civil action or
other legal proceeding arising out of or relating to this Agreement.
15. Successors and Assignment. This Agreement shall he binding upon and
inure to the benefit of the parties hereto and their respective
successors or assigns, provided, however, that neither party shall
assign or transfer its rights or obligations under this Agreement
without the prior written consent of the other party, which shall not
unreasonably be withheld, arid further provided that any assignment or
transfer without such consent shall be void.
16. General.
a. Survival of Terms. The terms and provisions contained in
this Agreement that by their sense and context are intended to survive
the performance thereof by the parties hereto shall so survive the
completion of performance and of this Agreement, including, without
limitation, provisions for indemnification and the making of any and
all payments due hereunder.
b. Headings. Descriptive headings in this Agreement are for
convenience only and shall not affect the construction of this
Agreement,
c. Industry Terms. Words having well-known technical or trade
meanings shall be so construed, and all listings of items shall not be
taken to be exclusive, but shall include other items, whether similar
or dissimilar to those listed, as the context reasonably requires.
d. Rule of Construction. No rule of construction requiring
interpretation against the draftsman hereof shall apply in the
interpretation of this Agreement.
e. Entire Agreement. This Agreement consists of all the terms
and conditions contained herein; in executed Service Schedules that are
identified herewith; and in documents incorporated herein specifically
by reference. This Agreement constitutes the complete and exclusive
statement of the understandings between the parties and supersedes all
proposals and prior agreements (oral or written) between the parties
relating to Service provided hereunder. No subsequent agreement between
the parties concerning the Service shall be effective or binding unless
it is made in writing and subscribed to by authorized representatives
of Broker and the Company.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and
seals the day and year first above written.
Broker The Company
By: By:
Xxxxxx Xxxxxxx
President
0000 XX 00xx Xxx., Xxx 00
Xxxxx, XX 00000
