AGREEMENT
1
EXHIBIT 10.27
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
April 14, 1997
AGREEMENT
This Operator and Related Services Agreement (the "Agreement"), is
entered into as of April 16, 1997, by and between Eastern Telecom, Inc., d/b/a
InterQuest, a Georgia Corporation ("InterQuest"), and Cybernet, a Georgia
Corporation
WHEREAS, InterQuest provides live operator and related
telecommunication services (the "Services"); and
WHEREAS, Cybernet provides various telecommunication services directly
or indirectly to callers or other consumers of its services ("End users"), and
desires to utilize InterQuest's live operator services, and such other services
as may be offered by InterQuest; and
WHEREAS, InterQuest desires to provide such services to Cybernet.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, InterQuest shall provide to Cybernet and Cybernet shall purchase
from InterQuest, the Services, upon the terms and conditions set forth in this
Agreement.
1. Payments and Financing of Receivables All payments for the
purchase of services rendered will be paid within 15 days of invoice based upon
rates set forth in Exhibit A of this Agreement.
2. Term.
2(a) This Agreement shall commence on the date first
hereinabove set forth. The initial term of this Agreement shall be for two
years, unless terminated earlier in accordance with this Section 2 or Section 5
hereof (the "Initial Term"). In the event that neither party provide notice of
termination at least 30 days prior to the end of the Initial Term, the term, of
this Agreement shall automatically be extended for an additional year, and the
notice of termination provision and automatic extension provision of this
Section 2(a,) shall apply to each additional year in which this Agreement
remains in effect.
2(b) Upon written notice to the other party, either party
shall have the right to terminate immediately this Agreement upon the occurrence
of any of the following events: (1) the other party shall make an assignment for
the benefit of creditors, consent to the appointment of a trustee or receiver in
bankruptcy, or becomes insolvent, bankrupt or unable to pay its debts as they
become due; (2) a trustee or receiver in bankruptcy shall be appointed for any
of the properties of the other party and not he discharged or stayed within 30
days; or (3) bankruptcy, reorganization, liquidation or similar proceeding shall
be instituted against the other party, and are consented to by it or permitted
to remain unstayed or undismissed for 30 days.
3. Independent Contractors; Liability; and Indemnification
3(a) For purposes of this Agreement, the relationship of the
parties is that of independent contractors, and nothing contained in or implied
by the Agreement constitute or be construed to be or to create a partnership,
joint venture, or employment relationship between InterQuest and Cybernet.
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2
3(b) Neither party shall be liable under any contracts or
obligations of the other party, apart from this Agreement, or for any acts or
omissions of the other party or such other party's officers, directors,
employees and agents. In no even, except for a breach Section 4 of this
Agreement, shall either party be liable to the other or any third parties
(including any agents and or customers) for any special, indirect or
consequential damages even if such party has been advised of the possibility of
such damage.
3(c) Each party hereto hereby agrees to protect, indemnify,
and hold harmless the other party and its respective officers, directors,
trustees, agents, employees, and affiliates (the "Indemnified Party") from and
against all claims, actions, or causes of action, losses, damages, liabilities,
costs, taxes, and expenses, including, without limitation, reasonable attorney's
fees and disbursements (collectively, "Claims") to the extent that such claims
are incurred by or asserted against the Indemnified Party by reason of or in
connection with any (1) actual or alleged negligence, willful misconduct, error,
or omission of the indemnifying party, its officers, directors, trustees,
agents, or employees (the "Indemnifying Party") in connection with the execution
or performance of this Agreement, or (2) failure by the Indemnifying Party to
pay, perform, or comply with any of the provisions of this Agreement.
4. Proprietary Information
4(a) Each party acknowledges that it may in the course of the
performance of its obligations under this Agreement obtain knowledge of and
access to confidential and valuable business and proprietary information
relating to the other party and/or its customers. Such information shall be
labeled or identified as such in writing and shall be protected by the recipient
party from disclosure to others. Each party agrees at all tunes to use
reasonable efforts, at least as stringent as those employed by it with respect
to its own confidential information, (a) to keep confidential all such
information of the other party, (b) not to use such confidential information an
its own behalf, except in connection with the performance of its obligations
under this Agreement, or on behalf of any other person, firm, or entity, and (c)
not to disclose such confidential information to any third party (other than to
such patty's employees, officers, representative, and other agents with a "need
to know" such information in connection with the performance of its obligations
hereunder) without the other party's advance written authorization.
4(b) Cybernet and InterQuest's obligations and agreements
under this Section shall not apply to any confidential information supplied
that:
(1) was lawfully obtained by either party prior to the
disclosure by the other, or
(2) is or becomes generally available to the public other than
by breach of this Agreement, or
(3) otherwise becomes lawfully available on a non-confidential
basis from a third parry who is not under an obligation of
confidence to either party.
5. Force Majeure. Neither party shall be liable for delay in
performance hereunder or failure to perform hereunder if such failure or delay
is due to any cause or condition beyond such party's reasonable control. Such
causes or conditions beyond include but shall not be limited
InterQuest Confidential Page 2
3
to, acts of God or of the public enemy, acts of any federal, state, or local
Government (or any agency thereof), fires, floods, epidemics, power failures
affecting both the main power and the uninterrupted power source (UPS),
quarantine restrictions, union instigated strikes, material labor disputes,
freight embargoes, unusually severe weather, failure by the applicable
telecommunications carriers, or other similar causes beyond such party's
control. In the event of a delay or failure to perform hereunder, the
non-performing party shall use its best efforts to resume performance under this
Agreement. If the performance of either party is terminated or delayed under
this provision for a period of 30 days, the other party shall have the right to
terminate this Agreement upon written notice to the non-performing party.
6. Notices. All notices, demands, requests, or other communications
which may be or are required to be given, served, or sent by either party to the
other party pursuant to this Agreement shall be in writing and shall be deemed
to have been duly given when sent by first-class, registered or certified mail,
return receipt requested, postage prepaid or transmitted by hand delivery,
express delivery, facsimile transmission, telegram or telex, addressed as
follows:
(a) If to InterQuest:
000 Xxxxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
(b) If to Cybernet:
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent.
7. Binding Effect. Subject to any provisions hereof restricting
assignment, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
8. Assignment. This Agreement and the rights and obligations of either
party hereunder may not be assigned by any party without the prior written
consent of the other party, except that either party may assign its rights
hereunder to any entity controlled by, controlling, or under common control with
such party or to any successor by merger or consolidation, or to any purchasers
of all or substantially all of the assets or business of such party.
9. Severability. If any part of any provision of this Agreement shall
be invalid or unenforceable under applicable law, said part shall be ineffective
to the extent of such invalidity
InterQuest Confidential Page 3
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or unenforceability only, without in any way affecting the remaining parts of
said provision or the remaining provisions of this Agreement.
10. Limitation on Benefit. It is the explicit intention of the parties
hereto that no person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants, undertakings and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by, the parties hereto or their respective successors, legal
representative and assigns as permitted hereunder and any other persons or
entities specifically so designed herein.
11. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior oral or written agreements,
commitments or understands with respect to the matters provided for herein. No
amendment, modification or discharge of this Agreement shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, or discharge is sought.
12. Headings. Section headings contained in this Agreement are inserted
for convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provision hereof.
13. Governing Law. This Agreement, the rights and obligations of the
parties hereto and any claims or disputes relating thereto shall be governed by
and construed in accordance with the laws of Georgia (excluding the choice of
law rules thereof).
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14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the .document and shall became effective when one or more
counterparts have been signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf, as
of the date and year first above written.
InterQuest
By:/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, CFO
Title: Vice President, Finance and Administration
Cybernet
By:/s/ Xxxxx X. Xxxxxxxx Xx.
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: CFO
InterQuest Confidential Page 5
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***INFORMATION IN THIS EXHIBIT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
OPERATOR SERVICES PRICING FOR CYBERNET
EXHIBIT A
LIVE OPERATOR:
ATTEMPTS PER MONTH PRICE PER ATTEMPT*
[___________________] [____]
[___________________] [____]
[_____________________] [____]
[________] [____]
AUTOMATED OPERATOR:
ATTEMPTS PER MONTH PRICE PER ATTEMPT*
[____________________] [_____]
[____________________] [_____]
[________] [_____]
VALIDATION SERVICES:
[__________________________]
PORT UTILIZATION:
[______]
CALL RATING:
[_____________]
TRANSMIT OUTCLEARING TO ZPDI:
[_________________________________]
OUTCLEAR CREDIT CARD CALLS TO TBR:
[_______________]
[___________________________________________________________]
*[____________________________________________________________________________
_______________________________________________________________]
7
DIRECTORY ASSISTANCE
(411, 0-000-0000, NPA-555-1212 CALLS)
PRICE PER ATTEMPT [_____]
NPA'S WE WILL SERVE FOR DA:
ALABAMA 205
334
FLORIDA 305
352
407
561
904
954
GEORGIA 404
706
770
912
KENTUCKY 502
LOUISIANA 318
504
MISSISSIPPI 601
N. CAROLINA 704
910
S. CAROLINA 803
864
TENNESSEE 423
615
901
NPA'S WE WILL NOT SERVE FOR DA:
FLORIDA 813
941
KENTUCKY 606
N. CAROLINA 919
8
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
CARRIER
CODE COUNTRY RATE
355 ALBANIA [_____]
000 XXXXXXX [_____]
684 AMERICAN SAMOA [_____]
33 ANDORRA [_____]
244 ANGOLA [_____]
809 ANGUILLA [_____]
809 ANTIGUA [_____]
54 ARGENTINA [_____]
7885 ARMENIA [_____]
297 ARUBA [_____]
247 ASCENSION ISLAND [_____]
672 AUST EXT TER [_____]
61 AUSTRALIA [_____]
43 AUSTRIA [_____]
0000 XXXXXXXXXX [_____]
0000 XXXXXXXXXX [_____]
809 BAHAMAS [_____]
973 BAHRAIN [_____]
880 BANGLADESH [_____]
000 XXXXXXXX [_____]
7017 BELARUS [_____]
32 BELGIUM [_____]
501 BELIZE [_____]
000 XXXXX XXXXXXXX [_____]
809 BERMUDA [_____]
975 BHUTAN [_____]
591 BOLIVIA [_____]
387 BOSNIA [_____]
267 BOTSWANA [_____]
55 BRAZIL [_____]
809 BRITISH V.I. [_____]
673 BRUNEI [_____]
000 XXXXXXXX [_____]
226 BURKINA FASO [_____]
95 BURMA [_____]
257 BURUNDI [_____]
855 CAMBODIA [_____]
9
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
CARRIER
CODE COUNTRY RATE
237 CAMEROON [_____]
000 XXXX XXXXX XXXXXXX [_____]
000 XXXXXX XXXXXXX [_____]
000 XXXXXXX XXXXXXX REP _ [_____]
235 XXXX [_____]
56 CHILE [_____]
86 CHINA [_____]
000 XXXXX/XXXXXXXXX XXX. [_____]
57 COLOMBIA [_____]
269 COMOROS [_____]
000 XXXXX XXXXXXXX [_____]
000 XXXX XXXXXX [_____]
X00 XXXXX XXXX [_____]
000 XXXXXXX [_____]
53 CUBA [_____]
000 XXXXXX [_____]
42 CZECHOSLOVAKIA [_____]
45 DENMARK [_____]
246 XXXXX XXXXXX [_____]
I253 DJIBOUTI [_____]
809 DOMINICA [_____]
809 DOMINICAN REP [_____]
000 XXXXXXX [_____]
20 EGYPT [_____]
503 EL SALVADOR [_____]
240 EQUATORIAL GUINEA [_____]
000 XXXXXXX [_____]
251 ETHIOPIA [_____]
298 FAEROE ISLAND [_____]
500 FALKLAND ISLAND [_____]
679 FIJI ISLAND [_____]
000 XXXXXXX [_____]
33 FRANCE [_____]
596 FRENCH ANTILLE [_____]
594 FRENCH GUIANA [_____]
689 FRENCH POLYNESIA [_____]
000 XXXXX XXXXXXXX [_____]
000 XXXXXX [_____]
7883 GEORGIA [_____]
49 GERMANY (WEST) [_____]
233 GHANA [_____]
350 GIBRALTAR [_____]
30 GREECE [_____]
10
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
CARRIER
CODE COUNTRY RATE
299 GREENLAND [_____]
809 GRENADA [_____]
000 XXXXXXXXXX [_____]
671 GUAM [_____]
0000 XXXXXXXXXX [_____]
502 GUATEMALA [_____]
245 GUINEA BISSAU [_____]
000 XXXXXX XXXXXXXX [_____]
592 GUYANA [_____]
509 HAITI [_____]
504 HONDURAS [_____]
852 HONG KONG [_____]
36 HUNGARY [_____]
354 ICELAND [_____]
91 INDIA [_____]
62 INDONESIA [_____]
98 IRAN [_____]
964 IRAQ [_____]
000 XXXXXXX [_____]
000 XXXXXX [_____]
39 ITALY [_____]
225 IVORY COAST [_____]
809 JAMAICA [_____]
00 XXXXX [_____]
962 JORDAN [_____]
7312 KAZAKHSTAN [_____]
7327 KAZAKHSTAN [_____]
254 KENYA [_____]
686 KIRIBATI [_____]
00 XXXXX XXXXXXXX [_____]
000 XXXXXX [_____]
0000 XXXXXXXXXX [_____]
000 XXXX [_____]
000 XXXXXX [_____]
961 LEBANON [_____]
266 LESOTHO [_____]
231 LIBERIA [_____]
218 LIBYAN ARAB [_____]
0000 XXXXXXXXXX [_____]
370 LITHUANIA [_____]
000 XXXXXXXXXX [_____]
853 MACAO [_____]
389 MACEDONIA [_____]
11
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
CARRIER
CODE COUNTRY RATE
261 MADAGASCAR [_____]
265 MALAWI [_____]
60 MALAYSIA [_____]
960 MALDIVES [_____]
000 XXXX XXXXXXXX [_____]
356 MALTA [_____]
871 MARISTAT (ATLANTIC EAST) [_____]
874 MARISTAT (ATLANTIC WEST) [_____]
873 MARISTAT ONDIAN) [_____]
872 MARISTAT (PACIFIC) [_____]
000 XXXXXXXX XXXXXX [_____]
222 MAURITANIA [_____]
230 MAURITIUS [_____]
000 XXXXXXX XXXXXX [_____]
52 MEXICO [_____]
691 MICRONESIA [_____]
000 XXXXXXX [_____]
3393 MONACO [_____]
976 MONGOLIA [_____]
809 MONTSERRAT [_____]
212 MOROCCO_ [_____]
7095 MOSCOW [_____]
258 MOZAMBIQUE [_____]
95 MYANMAR. [_____]
000 X XXXXXXX XXXXXX [_____]
000 XXXXXXX [_____]
674 NAURU [_____]
977 NEPAL [_____]
00 XXXXXXXXXXX [_____]
000 XXXXXXXXXXX ANTILLE [_____]
809 NEVIS [_____]
000 XXX XXXXXXXXX [_____]
64 NEW ZEALAND [_____]
000 XXXXXXXXX [_____]
000 XXXXX XXXXXXXX [_____]
000 XXXXXXX [_____]
683 NIUE ISLAND [_____]
000 XXXXXXX XXXXXX [_____]
47 NORWAY [_____]
000 XXXX [_____]
92 PAKISTAN [_____]
680 PALAU [_____]
507 PANAMA [_____]
12
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
CARRIER
CODE COUNTRY RATE
675 PAPUA NEW GUINEA [_____]
000 XXXXXXXX [_____]
00 XXXX [_____]
63 PHILIPPINES [_____]
48 POLAND [_____]
000 XXXXXXXX [_____]
000 XXXXX [_____]
000 XXXXXXX XXXXXX [_____]
40 ROMANIA [_____]
7073 RUSSIA [_____]
000 XXXXXXXX XXXXXXXX [_____]
670 SAIPAN [_____]
378 SAN MARINO [_____]
239 SAO TOME [_____]
000 XXXXX XXXXXX [_____]
221 SENEGAL [_____]
248 SEYCHELLES [_____]
232 SIERRA LEONE [_____]
65 SINGAPORE [_____]
000 XXXXXXXX [_____]
677 SOLOMON ISLAND [_____]
27 SOUTH AF~CA [_____]
34 SPAIN [_____]
94 SRI LANKA [_____]
000 XX. XXXXXX [_____]
000 XX. XXXXX [_____]
000 XX. XXXXX [_____]
508 ST. PIERRE/MIQ [_____]
809 ST. XXXXXXX [_____]
597 SURINAME [_____]
268 SWAZILAND [_____]
46 SWEDEN [_____]
41 SWITZERLAND [_____]
000 XXXXXX XXXX [_____]
886 TAIWAN [_____]
7377 TAJIKISTAN [_____]
000 XXXXXXXX [_____]
00 XXXXXXXX [_____]
228 TOGO [_____]
000 XXXXX XXXXXX [_____]
809 TRINIDAD/TOBAGO [_____]
809 TRINIDAD/TOBAGO [_____]
216 TUNISA [_____]
13
***INFORMATION IN THIS ATTACHMENT HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED
PORTIONS HAVE BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE
COMMISSION.***
ATTACHMENT 1.2
CARRIER
INTERNATIONAL DEDICATED OUTBOUND RATES
CARRIER
CODE COUNTRY RATE
00 XXXXXX [_____]
809 TURKS/CIACOS ISL. [_____]
688 TUVALU [_____]
256 UGANDA [_____]
0000 XXXXXXX [_____]
000 XXXXXX XXXX [_____]
00 XXXXXX XXXXXXX [_____]
000 XXXXXXX [_____]
0000 XXXXXXXXXX [_____]
678 VANUATU [_____]
39 VATICAN CITY [_____]
58 VENEZUELA [_____]
84 VIETNAM [_____]
000 XXXXXX & XXXX. [_____]
685 WEST SAMOA [_____]
967 YEMEN [_____]
38 YUGOSLAVIA [_____]
000 XXXXX XXXXXXXX [_____]
000 XXXXXX [_____]
263 ZIMBABWE [_____]
