RESALE AGREEMENT
THIS AGREEMENT is made and entered into this 18th day of March, 1993, by
and between Teleport Communications Group, Inc. a Delaware corporation with
its principal office located at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxxx,
Xxx Xxxx 00000-0000, (hereinafter (TCG)", and ARC Networks, a division of
Avionics Research Corporation, a New York corporation, with its principal
office located at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000-0000
(hereinafter "Reseller)", for the purpose of establishing a sales
representation relationship between them.
WITNESSETH:
WHEREAS, TCG is in the business of providing telecommunications
services in certain geographic market areas; and
WHEREAS, Reseller has applied to TCG for the right to market, sell and
distribute TCG's services to the general public; and
WHEREAS, both TCG and Reseller recognize the compatible nature of their
individual goals in expanding competition in the services offered by TCG as
well as any services to be offered by Reseller and the benefits which will
accrue to the public through the Parties' cooperation; and
WHEREAS, TCG has agreed to engage Reseller pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
warranties which appear below, and intending to be legally bound thereby, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, as hereinafter defined, the following
terms shall have the respective meanings given to them in this Article I,
unless the context requires otherwise. Said terms also shall have the said
meanings when used in any exhibit, schedule, attachment, or addendum hereto
or in any document made or otherwise delivered pursuant to this Agreement,
unless the context otherwise requires. Each said term defined in this
Article I shall be deemed to refer to the singular, plural, masculine,
feminine, or neuter as the context requires.
1.1. "AGREEMENT" means this Agreement, as originally executed and as
the same may be amended, modified and supplemented from time to time by
exhibits, schedules, attachments or addendum executed in accordance herewith.
1.2. "ASSIGNMENT" means a sale, exchange, transfer or other
disposition of all or any portion of a Party's rights hereunder.
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1.3. "AFFILIATE" means, when used with reference to a specific
Person, any Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with
such specific Person. This term shall also include any person who, directly
or indirectly, through one or more intermediaries, has the contractual right
or option to acquire or vote more than 10% of the voting interesting of a
specific Person.
1.4. "BUSINESS DAY" means day other than "Saturdays, Sundays, and
legal holidays.
1.5. "CONTROL" (or the verb from "Controlled"), a Person shall be
deemed to control another Person when such controlling Person has the power,
directly or indirectly, to cause the direction of the management or policies
of such other Person, whether through the ownership of voting securities, by
contract, agency or otherwise.
1.6. "CUSTOMER" means an end-user of TCG's Services.
1.7. "EFFECTIVE DATE" means the date of the last necessary signature
hereto.
1.8. "FCC" refers to the Federal Communications Commission.
1.9. "FINAL ORDER" means an action by any applicable federal or
state agency or court as to which: (i) no request for stay by the federal or
state agency or court of the action is pending, no such stay is in effect,
and, if any deadline for filing any such request is designated by statute or
regulation, it has passed; (ii) no petition for rehearing or reconsideration
of the action is pending and the time for filing any such petition has
passed; (iii) the federal or state agency or court does not have the action
under reconsideration on its own motion and the time for such reconsideration
has passed; and (iv) no appeal to a court, or request for stay by a court, of
the federal or state agency's or court's action is pending or in effect, and
if any deadline for filing such appeal or request is designated by statute or
rule, it has passed.
1.10 "MOU" means a minute of use of TCG's Services hereunder.
1.11 "PARTY" refers to one or both of the parties to this Agreement,
TCG or Reseller, as the context indicates.
1.12 "PERSON" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of
such person as the context may require.
1.13 "PROPRIETARY INFORMATION" means information relating to
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the business and operations of TCG or its subsidiaries, Affiliates, clients
and consultants including, but not limited to, all technical, marketing and
financial information relating thereto, any information relating to the
pricing, methods, processes, financial data, lists, apparatus, statistics,
programs, research, development or related information of TCG, its
subsidiaries or Affiliates, or TCG's or Reseller's clients, concerning past,
present or future business activities or operations of said entities or the
results of the provision of Services performed by Reseller under this
Agreement.
1.14 "SERVICES" OR "TCG'S SERVICES" refers to the point-to-point and
switched telecommunications services delineated in Schedules A & B hereto, to
be resold hereunder by Reseller to the general public in certain geographic
market areas.
ARTICLE II
UNDERTAKING OF THE PARTIES
2.1 "SCOPE" Reseller and TCG wish to set fourth a standard set of
general terms and conditions which will facilitate Reseller's ability to
market, sell and distribute the services in various metropolitan areas. The
Services will offered in each metropolitan area by an entity ("Authorized
Entity") which is either an affiliate or subsidiary of TCG and/or which TCG
manages or is otherwise contractually affiliated with. TCG will notify
Customer from time to time of the identity of each Authorized Entity for
which such terms and conditions are applicable.
2.2. "FORMATION" TCG hereby agrees to provide to Reseller, and
Reseller hereby agrees to accept use of certain TCG Services hereunder. The
Services are as set forth in Schedules A & B hereto and in any applicable
tariffs. These Schedules may be revised from time to time by TCG in
accordance with generally applicable changes in TCG's service offerings. TCG
will inform Reseller of any changes in its Services in a timely manner such
that Reseller may continue to correctly represent the services to the public.
2.2.1 Reseller will market the Services to its target accounts.
Reseller agrees that it shall enter into a Master Communications Services
Agreement and corresponding Service Supplements (hereinafter "Service
Supplements") with TCG for the provision of resale Services. Upon receipt of
an executed Service Supplement, TCG will install and then implement the
Service in its switching facility and network
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2.2.2 Reseller shall use TCG Services from among those listed in
Schedule A and Schedule B.
2.2.3 TCG reserves the right in its full discretion to decline to
accept a Customer contract solicited by Reseller pursuant to its generally
applicable business criteria.
2.3. CONNECTIONS TO IXCs: Reseller will specify to TCG its
automatic routing selections for all InterLATA and international traffic.
Reseller will negotiate directly with the IXC of its choice and be
responsible for all IXC charges.
2.4. AUTHORITY OF RESELLER TCG and Reseller hereby agree that
Reseller is a reseller of TCG's Services and solicits offers for such
Services. Reseller shall enter into contracts with Customers for the
Services. Reseller shall have not right, however, to enter into a contract
on TCG's account or to bind TCG in any manner.
2.5. RESELLER'S AUTHORIZATIONS Reseller shall secure and maintain,
at its sole expense, all licenses and permits required by federal, state or
municipal law or regulation for it and its employees, agents or other
representatives, to ensure Reseller's lawful performance of this Agreement.
ARTICLE III
PAYMENT AND COLLECTION TERMS
3.1. RATES FOR SERVICES Subject to the following Sections of this
Article III, Reseller will be charged pursuant to Schedule C hereto for
switched Services and pursuant to Schedule D hereto for dedicated Services.
Schedules C & D may be changed from time to time by TCG in accordance with
changes in TCG's tariffs or generally applicable schedule of rates.
3.1.1. In the event that the underlying local exchange carrier
increases its rates for services used by TCG in providing Service hereunder,
TCG shall have the option to increase its rates to Reseller accordingly.
3.2. MINIMUM COMMITMENT PERIODS Reseller understands and agrees that
the rates for Service to Representative are based upon an expected usage
level and that, absent the minimum usage for both switched and point to point
Service set forth herein, TCG would be unable to offer the Service at the
rates given to Reseller. In view thereof, Reseller shall have Minimum
Commitment Levels for Service hereunder. The first Minimum Commitment Level
shall be for a Minimum Commitment Period that shall commence after the
Effective Date hereof, and continue for a period of six (6) months. By the
sixth (6th) month of this period, Reseller must have in service an aggregate
from all of Reseller's accounts of two-hundred fifty thousand (250,000) MOUs
per month. A second Minimum Commitment
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Period shall begin at the end of the first such period. It will continue
until the twelfth (12th) month after the commencement of the first such
Period. By the twelfth (12th) month, Reseller must have in service an
aggregate from all of Reseller's accounts of five-hundred thousand (500,000)
MOUs per month as well as ten (10) DS-1s, TeleXpress Services, or other
services generating equivalent revenue.
3.2.1 TCG shall review Reseller's usage at the end of each Minimum
Commitment Period. If, at the end of each such Period, Reseller has not met
the associated Minimum Commitment Level, then Reseller shall pay to TCG the
amount that would have been paid to TCG for Service if the Minimum Commitment
Level had been achieved for all months of the associated Minimum Commitment
Period.
3.2.2 TCG shall invoice Reseller for the amount due pursuant to the
provisions of subsection 3.2.1 hereof, which amount shall be due from
Reseller within thirty (30) days after TCG sends the invoice. After the end
of the second Minimum Commitment Period, Reseller shall billed and shall
pay to TCG for actual usage or at the second Minimum Commitment Level,
whichever is greater.
3.3. LATE PAYMENT; BILLING DISPUTES Payment and billing disputes
shall be tendered in accordance with the provisions of the Master
Communications Services Agreement to be entered into between TCG and Reseller.
3.4. CREDITWORTHINESS In addition to any other remedies available
to TCG, TCG may elect, in its sole discretion, to cause start of service for
Service applicable to a Customer to be withheld or decline to accept a
Customer if there is a material change in Reseller's creditworthiness (or TCG
may condition the provision of Service on assurance of payment by Reseller or
Customer which shall take the form of a deposit or similar assurance as
specified by TCG).
3.5. SALES FORECAST Reseller will forecast quarterly sales
objectives. These objectives will not be considered by TCG as Reseller's
contractual commitments.
ARTICLE IV
TERM OF AGREEMENT
4.1 EFFECTIVE DATE; RENEWAL This agreement shall become effective
upon the Effective Date, and shall remain in effect for a period of ten (10)
years unless otherwise terminated in accordance herewith. This Agreement
automatically shall be renewed thereafter for successive periods of one (1)
year or as otherwise agreed by the Parties. This Agreement thereupon shall be
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terminable by either Party at the end of the initial or then-current renewal
term upon written notice two hundred seventy (270) days prior to the end of
the then-current term.
4.2. INSOLVENCY Either Party may terminate this Agreement upon
ninety (90) days notice to the other Party in the event of an admission by
the other Party of an inability to pay its debts, the entering into by the
other Party of a composition or other arrangement with its creditors, the
appointment of a trustee or receiver, with or without consent, for the other
Party of all or any substantial portion of its property or the filing of a
petition for relieve by or against the other Party under the Bankruptcy Code
or any similar federal or state statute (including moratorium laws);
PROVIDED, HOWEVER, that in the case of an involuntary petition, there shall
be no right of cancellation hereunder unless such petition remains
undismissed sixty (60) days after the filing thereof.
4.3. LOSS OF OPERATING AUTHORITY This Agreement shall terminate
automatically and without liability or further obligation on the part of
either Party to the other if, by Final Order, TCG loses its authority to
provide the Services as contemplated hereunder, or if such authority is
suspended or not renewed.
4.3.1 If such authority is lost, suspended or not renewed with regard
to a portion of the Services or service areas, then this Agreement shall
terminate automatically and without liability or further obligation on the
part of either Party to the other with regard only to the Service or service
area concerned.
4.3.2 The provisions of this Section 4.3 shall not be construed to
affect any liabilities which arise prior to the automatic termination
hereunder, or which may later arise from the Parties' activities during the
term of this Agreement.
4.4. EVENTS OF DEFAULT Aside from any other events of default set
forth in this Agreement, the following shall constitute an event of default
hereunder: (i) the failure by Reseller to make any payments due to TCG
hereunder for a period of ten (10) days after the date such payment is due;
(ii) the violation by either Party hereto of any material term or provision
of this Agreement or the failure of either party hereto to perform any of its
material obligations hereunder for a period of thirty (30) days, the failure
of the defaulting Party to take such steps as are necessary to commence the
cure within thirty (30) days and thereafter to prosecute such steps to
completion; (iii) the misapplication by Reseller of TCG's services; (iv) a
consistently poor payment record or other evidence of lack of financial
ability to perform; (v) any act that violates applicable federal or state law
or regulation or other unlawful act; (vi) the failure of Reseller to abide by
the
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terms of Sections 3.2, 3.3, 5.3, 5.4, and 7.4 hereof; or (vii) the willful or
intentional violation by either Party hereto of any term or provision of this
Agreement.
4.4.1. Upon the occurrence of an event of default as defined herein,
the non-defaulting Party shall have the right to terminate this Agreement
upon thirty (30) days written notice.
4.4.2. If Reseller defaults in its performance hereunder, as defined
in this Section 4.4, then TCG may, at its option, and as consideration for
TCG's capital expenditures in providing Service to Reseller's Customers
hereunder, enter into direct contracts with Customers obtained hereunder and
xxxx such Customers directly, with no compensation being due to Reseller
therefor.
4.5. SPECIFIC PERFORMANCE TCG shall have the right to enforce the
provisions of this Article IV by obtaining an injunction or specific
performance from any court of competent jurisdiction. Additionally, if
Reseller willfully breaches any material term hereof, whether or not TCG
exercises its option to terminate this Agreement pursuant to the terms of
Section 4.4 hereof, TCG shall be entitled to recover reasonable attorney's
fees in redressing said breach. The provisions of this Section 4.5 shall
survive the termination of this Agreement.
4.6. ALTERNATIVE REMEDIES The remedies set forth herein are
cumulative and in addition to, and not in limitation of, other remedies
available at law or in equity. None of the remedies specified in this
Article IV for any default or breach of this Agreement shall be exclusive.
ARTICLE V
MARKETING STANDARDS
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5.1 SALES LITERATURE TCG shall provide Reseller, at Reseller's
sole expense, with display materials and with an ongoing supply of sales
literature, if available. The copies of such display materials and sales
literature will be the property of Reseller. However, the rights preserved
to TCG pursuant to the provisions of Section 5.3 hereof will remain with
TCG. TCG will provide Reseller with assistance in assembling relevant
documentation.
5.2. MANAGERIAL TRAINING TCG shall provide managerial training
regarding its services, sales techniques and marketing strategies. Such
managerial training will be provided by TCG at no cost to Reseller for five
(5) managerial employees of Reseller. Training for additional of Reseller's
managerial employees shall be at Reseller's cost. Such cost shall be mutually
agreed-upon by the Parties.
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5.2.1 Expenses for Resellers' managerial employees who obtain
training hereunder shall be paid by Reseller. Said expenses shall include,
but not be limited to: air fare (or other travel expense); lodging; meals;
local transportation to TCG's training site; and incidental expenses.
5.3. TRADE NAMES AND TRADEMARKS All trade names, trademarks and
service marks owned or employed by TCG or any subsidiary or Affiliate of TCG,
used or employed in TCG's business operation, shall remain the sole and
exclusive property of TCG, or such subsidiary or Affiliate, and such trade
names, trademarks and service marks shall not be used by Reseller without
the prior written consent of TCG or such subsidiary or Affiliate. Reseller
shall immediately discontinue any use of such marks and names upon
termination hereof.
5.4. ADVERTISING TCG shall establish standards for all advertising,
promotional, and customer training materials used or distributed by Reseller
which relate to TCG's services. Reseller may refer to itself as an
authorized Reseller of TCG Services whenever it refers to the services in
promotional, advertising, or other materials. In addition, Reseller shall
provide to TCG for its prior review and written approval, all promotional,
advertising or other materials or activity using or displaying TCG's name,
Services or referring to Reseller as an authorized distributor of TCG
Services. Such review and standards will be limited to factual matters
pertaining to services furnished by TCG and use of TCG's marks and name.
Reseller agrees to change or correct, at Reseller's expense, any such
material or activity which TCG, in its sole judgement, determines to be
inaccurate, misleading or otherwise objectionable.
ARTICLE VI
OPERATING DUTIES OF THE PARTIES
6.1. CUSTOMER SUBSCRIPTION AND SERVICES Reseller shall provide
Customers with applications for service using pre-printed forms provide or
approved by TCG. Such applications shall then be forward by Reseller to
TCG within no more than three (3) Business Days after execution. Reseller
agrees to comply with all of TCG's customer service procedures regarding
TCG's Services hereunder.
6.2. RESELLER'S REPRESENTATIONS; CONTRACTS Reseller shall make no
representations, warranties, promises, understandings, or agreements
concerning TCG or TCG's Services not approved in advance by TCG. Reseller
may represent itself as a reseller of TCG's Services.
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6.3. CONDUCT OF RESELLER In performing this Agreement, Reseller
shall:
(a) conduct itself in an honest, professional, and ethical
manner and comply with all applicable statutes, ordinances, and
regulations; and
(b) employ only personnel who Reseller determines are fully
qualified through education and experience to perform Reseller's duties;
and
(c) deal directly with, and only with designated TCG
personnel for all purposes and with regard to all matters that arise
hereunder. The subject personnel will be designated by TCG upon the
execution by Reseller of this Agreement.
6.4. COLLECTION OF CHARGES Upon agreement by Reseller to provide
Service to Customer hereunder, the Customer shall become a customer of
Reseller. Reseller shall provide said service to such Customer and shall be
responsible for billing and collection of any associated deposits and charges
for such Service.
6.5. RESELLER'S FURTHER RESPONSIBILITIES: Reseller shall be
responsible to do the following:
(a) Negotiate sales; take orders; analyze and design service
proposals;; and coordinate with TCG as appropriate and necessary.
(b) Provide current customer and other information as
required for TCG to conduct customer surveys to ascertain Customer
satisfaction with the Service.
(c) Make only such representations concerning the
functions, capabilities, characteristics, design, installation date or
availability of any TCG Service as have been agreed upon by Reseller and
TCG.
(d) Use commercially reasonable efforts at all times to give
prompt, courteous and efficient service to customers; act in accordance
with the highest standards of honesty, integrity and fair dealing in all
dealings with such customers. Reseller shall not do anything which
would tend to discredit, dishonor, reflect adversely upon or in any
manner injure the reputation on TCG.
(e) Explain the Services and advise customers on the use of
the Services and the compatibility of the Services with other products
and services offered for sale by TCG.
(f) Maintain documents and records ("Records") supporting
the sales of Services subject hereof.
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(g) Cooperate fully in the collection, compilation and
maintenance of data required to be reported by TCG pursuant to any
federal or state statute, regulation or order. TCG represents that, to
the best of its knowledge, as of the date hereof, there are no reporting
requirements imposed on TCG which require Reseller's cooperation other
than in completing standard sales documents.
(h) Immediately inform TCG in the event of major or minor
outage. In addition, Reseller agrees that it shall give TCG immediate
notice in the event that a customer reports an outage to Reseller.
6.6. TCG EMPLOYEES Reseller agrees that the purpose and effect of
this Agreement is to increase competition in the access market, and to
facilitate Reseller's entry thereto. To aid Reseller in such completion,
pursuant to Section 5.2 hereof, Reseller will obtain access to certain of
TCG's confidential information and trade secrets, including system,s
procedures, customer relations practices, buying patterns and other
information acquired or developed by TCG. Reseller also will obtain access
to TCG employees who have such information. Accordingly, a confidential
relationship will exist hereunder between TCG and Reseller. Reseller thus
agrees that to use its position of confidence with TCG to obtain TCG
employees would be unfair. In view thereof, Reseller agrees that, should
Reseller hire any TCG employees, it will reimburse TCG for the reasonable
cost of recruiting and training replacement employees, and will not
appropriate, either directly or through said employees, TCG's customer lists
or other confidential information not already known to Reseller.
6.6.1 Reseller agrees and stipulates that access to TCG's employees
enhances Reseller's ability to compete in the access market, that the
provisions of this Section 6.6 are not designed to exclude, and will not
exclude, competition from the access market, and that said provisions are
both reasonably necessary and the least restrictive means for TCG to protect
its legitimate interests in encouraging more competition at the retail level.
6.7 TCG RESPONSIBILITIES: TCG shall use reasonable efforts to do
the following:
(a) Process Reseller's service orders in a prompt and
efficient manner.
(b) In accordance with TCG's applicable tariffs and Service
Contracts, install, maintain and support the Service(s) sold by Reseller
pursuant to this Agreement, but TCG shall have no responsibility for or
liability in connection with any other services or products sold by
Reseller.
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(c) Provide reasonable technical support to Reseller's
personnel.
ARTICLE VII
LIABILITY AND INDEMNIFICATION
7.1 RESELLER AN INDEPENDENT CONTRACTOR This Agreement constitutes
Reseller as a non-exclusive independent contractor only and not as TCG's
general or special agent and does not create a joint venture or apply to
confer any status, power or authority upon Reseller other than as expressly
set forth herein. The scope of Reseller's authority is specifically limited
to the minimum authority necessary to perform the duties accepted pursuant to
this Agreement and Reseller shall, to the maximum extent not inconsistent
with the provision hereof, control the means, details, manner and method of
allotment associated therewith. Reseller shall make no representations as to
the policies and procedures of TCG other than as specifically authorized by
TCG and shall be liable for any misrepresentation make by Reseller with regard
to TCG's Services.
7.2 RESELLER'S EMPLOYEES All persons employed by Reseller to
perform Reseller's duties under this Agreement are, and will remain, the
employees and agents of Reseller and are not, and will not become, employees
or agents of TCG. Reseller shall be solely responsible for the acts and
omissions of its employees and agents and shall have sole responsibility for
their supervision, direction, and control. Reseller shall comply with all
applicable laws regarding withholding and payment of all income taxes, social
security taxes, unemployment insurance and workmen's compensation and
disability benefits as well as those regarding equal employment opportunities
and safety of the workplace insofar as such concerns the subject matter
thereof.
7.3 RIGHT TO CONDUCT OTHER BUSINESS Each party hereto understands
and acknowledges that this Agreement is non-exclusive and that the Parties
themselves, their Affiliates, their representatives, and other entities with
whom they may contract may compete with the other Party hereto in the
businesses subject hereto in TCG's geographic market areas. This Agreement
shall not in any way limit TCG's power and right to contract with other
Persons concerning the subject matter hereof on such terms as TCG sees fit
even though such Persons, as a result, compete with Reseller. This Agreement
also shall not in any way limit Reseller's power and right to contract with
other Persons concerning the subject matter hereof, either during the term
hereof or thereafter, on such terms as Reseller sees fit even though such
persons, as a result, compete with TCG.
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7.4 INSURANCE Reseller shall, at its sole expense, be insured at
all time during the term of this Agreement under a comprehensive liability
insurance policy against claims for bodily and personal injury, death, and
property damage caused by or occurring in conjunction with Reseller's
activities hereunder. Such insurance coverage shall be maintained under one
or more policies of insurance issued by insurance companies qualified to do
business in the states where Reseller performs its duties hereunder, and
shall be in amounts not less than One Million Dollars ($1,000,000) per
occurrence for bodily and personal injury and death, Five Hundred Thousand
Dollars ($500,000) per occurrence for property damage, and Five Hundred
Thousand Dollars ($500,000) per occurrence for general liability arising out
of Reseller's conduct hereunder. Reseller shall provide TCG with a copy of
said policy(ies) and shall provide for not less than thirty (30) days prior
written notice of any modification, cancellation, or non-renewal thereof.
Reseller's insurance coverage hereunder is only for the purpose of assuring
TCG that Customers being solicited for TCG's services shall receive good
service; it does not and shall not be construed to give TCG any control over
or interest in any enterprise of Reseller other than the solicitation of
Customers for TCG's services.
7.5 INDEMNIFICATION Notwithstanding any of the provisions of this
Agreement which may be construed to the contrary, Reseller will indemnify
TCG, its directors, officers, employees, agents and representatives
("Indemnified Parties"), and save them harmless from and against any and all
claims, actions, damages, consequential damages, liabilities and expenses
(collectively, "Losses") occasioned by any act or omission of Reseller, its
directors, officers, employees, agents or representatives, relating to the
performance of its obligations hereunder. If any Indemnified Party shall,
without fault on its part, be made a party to any litigation commenced by or
against such Indemnified Party or Reseller, then Reseller shall protect and
hold such Indemnified Party harmless, and shall pay all costs, expenses,
Losses and reasonable attorney's fees incurred or paid by such Indemnified
Party in connection with said litigation.
7.6 QUALITY OF SERVICE TCG will make every reasonable effort to
provide continuous and uninterrupted service hereunder in accordance with
generally applicable industry standards; however;
EXCEPT FOR ANY EXPRESS WARRANTIES STATED IN THIS
AGREEMENT, TCG DISCLAIMS ALL WARRANTIES INCLUDING,
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS AND OF FITNESS FOR A
PARTICULAR PURPOSE, WHETHER SUCH WARRANTIES ARE
MADE BEFORE OR AFTER THE EXECUTION HEREOF. THE
STATED WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS
0R LIABILITIES ON THE PART OF TCG FOR DAMAGES
INCLUDING, BUT NOT
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LIMITED TO, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE USE OR
PERFORMANCE OF TCG'S SERVICE. IT IS EXPRESSLY
UNDERSTOOD THAT THE SOLE REMEDY OF RESELLER FOR
BREACH OF THIS AGREEMENT BY TCG OR FOR ANY DAMAGE TO
RESELLER OR OTHER PERSON CLAIMED TO HAVE RESULTED
FROM RESELLER'S RESALE HEREUNDER OR FROM THE USE
OF TCG'S SERVICE IS CREDITS FOR NETWORK OUTAGES AS
SET FORTH IN THE ASSOCIATED MASTER COMMUNICATIONS
SERVICES AGREEMENT.
7.7 TAXES Reseller shall be solely responsible to pay all
applicable local, state and federal taxes, including sales and uses taxes,
excise, access, bypass or other local, state and federal taxes or charges
imposed on based upon the provision, sales or use of the Services provide
hereunder. Reseller also shall pay any applicable gross receipts taxes with
regard to said Services, including surcharges. Such taxes will be billed by
TCG to Reseller and will be separately stated on Resellers' invoice;
PROVIDED, HOWEVER, that TCG will not xxxx to Reseller such taxes as may be
exempted by a tax exemption or resale certificate for operations in any state
for which Reseller obtains such a certificate.
ARTICLE VIII
CONFIDENTIALITY
8.1 PROPRIETARY INFORMATION During the term of this Agreement and
for a period of five (5) years thereafter, Reseller shall retain in
confidence, and shall require its directors, officers, employees,
consultants, representatives and agents to retain confidence, any and all
Proprietary Information. The Parties agree that the Proprietary Information
constitutes trade secrets of TCG and that the disclosure thereof in
contravention of this Agreement would constitute an unfair trade practice.
8.1.1 Reseller shall take effective precautions, contractual and
otherwise, reasonably calculated to prevent unauthorized disclosure or misuse
of Proprietary Information by any of its employees or by any other person
having access to such information. All of Reseller's employees, agents,
representatives or consultants who are given access to Proprietary
Information shall first independently and individually execute a
confidentiality agreement with TCG.
8.1.2 Proprietary Information shall not be deemed to include
information which is:
(a) already known to recipient;
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(b) publicly known (or becomes publicly known) without the fault or
negligence of recipient;
(c) received from a third party without restriction and without breach
of this Agreement;
(d) independently developed by recipient;
(e) furnished to a third party by TCG without a similar restriction on
the third party's rights;
(f) approved for release by written authorization of TCG; or
(g) required to be disclosed by law; PROVIDED, HOWEVER, that in the
event of a proposed disclosure pursuant to this Section 9.1.2(g),
Reseller shall give TCG not less than then (10) days prior written
notice before such disclosure is made.
8.2. DELIVERY OF DOCUMENTS Subject to the provisions of Section 5.1
hereof, all documents, manuals and other written information which
constitutes Proprietary Information given to or purchased by Reseller during
the term of this Agreement shall remain the sole and exclusive property of
TCG. Within ten (10) business days after termination of this Agreement,
Reseller shall return to TCG (without retaining copies thereof) any and all
Proprietary Information obtained from TCG in connection with the transactions
contemplated by this Agreement.
8.3 DISCLOSURE OF TERMS OF AGREEMENT Neither Party hereto shall
disclose the terms and conditions of this Agreement to any person or entity
without the prior written consent of the other Party.
ARTICLE IX
MISCELLANEOUS
9.1 FORCE MAJEURE Neither Party shall be liable to the other for
any delay or failure to perform hereunder, which delay or failure is due to
causes beyond the control of said Party, including, but not limited to:
acts of God; acts of the public enemy; acts of the United States of America,
or any state, territory or political subdivision thereof or of the District
of Columbia; fires; floods; epidemics; quarantine restrictions; or strikes or
freight embargoes.
9.1.1 Notwithstanding the foregoing provisions, in every case the
delay or failure to perform must be beyond the control and without the fault
or negligence of the Party claiming excusable delay.
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9.1.2 Performance times under this Agreement shall be considered
extended for a period of time equivalent to the time lost because of any
delay or failure to perform which is excusable hereunder; PROVIDED, HOWEVER,
that if any such delay or failure shall, in the aggregate, last for a period
of more than thirty (30) days, the Party not relying on the excusable delay
or failure, at its option, may terminate this Agreement.
9.2. SUCCESSION This Agreement shall be binding upon inure to the
benefit of the Parties and their respective heirs, executors, administrators,
legal representatives, successors, and assigns; PROVIDED, HOWEVER, that
Reseller may not assign its rights, nor may it delegate its duties hereunder,
except with TCG's prior written consent.
9.2.1 The Parties hereby agree and stipulate that TCG may expend
significant capital expenses in providing service to customers obtained by
Reseller hereunder. Accordingly, the Parties agree that should: (i) an
insolvency occur pursuant to Section 4.2 hereof; (ii) should TCG discontinue
offering a resale program pursuant to the notice requirement provided in
Section 4.1; or (iii) should Reseller lose, by Final Order, any necessary
local, state or federal authority necessary to perform its duties hereunder,
TCG may, at its option, directly provide Service to Customers at the
applicable retail rate. In the event that TCG exercises its option pursuant
to this Section 9.2.1., said option shall be deemed to be in consideration
for the above-described capital expenditures, and no further compensation
related thereto will be owed by TCG to Reseller.
9.3. NOTICES All notices pursuant to this Agreement shall be in
writing and shall be sent by overnight mail.
If to TCG, to: Teleport Communications Group, Inc.
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000-0000
Attn: General Counsel
If to Reseller, to: ARC Networks
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, President
9.4 INTEGRATION This Agreement represents the entire agreement and
understanding between TCG and Reseller as to the subject matter hereof. No
waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representative of the Party against which enforcement of such waiver,
alteration, or modification is sought.
9.5 SAVINGS CLAUSE If any term, covenant, or condition of
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circumstance shall to any extent be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant or condition to
person or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant, or
condition of the Agreement shall be valid and be enforced to the fullest
extent permitted by law.
9.5.1 All obligations and duties which by their nature extend beyond
the expiration or termination of this Agreement shall survive and remain in
effect beyond any expiration or termination.
9.6. APPLICABLE LAW This Agreement shall be governed by the laws
of the State of New York.
9.7. REGULATORY APPROVAL This Agreement shall be subject to and
governed by any applicable state and federal regulatory agencies having
jurisdiction over the subject matter hereof. Should any approval or
authority be required for any acts, duties or obligations to be performed
hereunder, the Parties will cooperate in securing the same.
9.8. AUTHORITY TO CONTRACT Reseller warrants that it has full
authority to enter into this Agreement and that such action has been duly
authorized in accordance with Reseller's articles of incorporation, by-laws
or other applicable organizational documents and procedures.
9.8.1 The individuals executing this Agreement on behalf of Reseller
further warrant that they have the full power and authority to bind their
respective entities to the terms hereof and have been duly authorized to do
so in accordance with Reseller's corporate or other organizational documents
and procedures.
9.9. CAPTIONS; SECTIONS Captions contained herein are inserted only
as a matter of convenience and in no way define, limit, or extend the scope
or intent of any provision hereof. Use of the term "Section" shall include
the entire subject Section and all its subsections where the context
requires.
9.10 INDEPENDENT BUSINESS JUDGMENT The Parties hereby acknowledge
and agree that Reseller is an independent business sufficiently sophisticated
to exercise and exercising its own business judgement. The Parties hereby
further acknowledge and agree that TCG has made no recommendations or
representations regarding any aspect of Reseller's business including, but not
limited to, and representations with regard to Reseller's profits therefrom.
9.11 WAIVER Failure or delay on the part of either Party to
exercise any right, power or privilege hereunder shall not operate as a waiver
thereof. A waiver of one obligation hereunder shall
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not operate as a waiver of any other obligation. Waiver by TCG or Reseller of
a breach of any provision of this Agreement by the other Party shall not
operate or be construed as a waiver of any subsequent breach by the other
Party.
9.12 EXECUTION This Agreement may be executed in counterparts and
each of such counterparts shall, for all purposes, be deemed to be an
original but altogether only one (1) Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
TELEPORT COMMUNICATIONS GROUP, INC. ARC NETWORKS
By: /s/ [ILLEGIBLE] By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- ----------------------------
Title: V.P. [ILLEGIBLE] Title: President
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Date: 3/18/93 Date: 18 March 1993
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APPROVED AS TO FORM
LEGAL DEPARTMENT
Date 18 March 93 By M.G.
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