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EXHIBIT 10.28
***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.***
AGREEMENT FOR TELECOMMUNICATION SERVICES
THIS AGREEMENT is entered into by and between Cybernet with
offices located in Xxxx Xxxxx, Xxxxxxx (hereinafter "Customer") and DELTACOM,
INC., an Alabama corporation with offices located in Arab, Alabama, (hereinafter
DeltaCom"), collectively referred to as the "Parties", and shall be effective on
the date last appearing below.
WHEREAS, Customer desires to purchase certain telecommunication
services from DeltaCom; and
WHEREAS, DeltaCom desires to provide Customer with certain
telecommunication services.
NOW THEREFORE, in consideration of the mutual promises and
covenants contained herein, DeltaCom and Customer agree as follows:
1. TERM: The term of this Agreement shall commence on the date of
signature and continue for a period of twelve (12) consecutive months. Upon
expiration of the term hereof, this Agreement shall be continued month to month
thereafter, with either Party having the right to terminate this Agreement by
giving 60 days prior written notice to the other.
2. SERVICES PROVIDED BY DELTACOM: Subject to the terms and conditions of
this Agreement, DeltaCom shall provide certain long distance telecommunications
services (the "Services") to Customer as further described in Attachment 1. Both
parties agree that the services provided herein which are subject to regulation
by any governmental entity, agency or commission shall be provided in accordance
with the governmental entity's, agency's, or commission's rules and regulations
and DeltaCom's current approved tariff and as the same may be amended from time
to time. All charges for usage of the services to be provided by DeltaCom, or by
Customer to its customers, hereunder shall not exceed the maximum limit charges
established by order or ruling of any governmental agency or entity from time to
time, if any such limits are established.
3. RATES: The rates applicable to the Services provided to Customer by
DeltaCom are contained in Attachment 1.1.
4. PAYMENT FOR SERVICES: A statement for Services provided to Customer under
this Agreement shall be submitted to Customer by DeltaCom on a monthly basis and
shall be due and payable on the due date stated therein (which shall not be
earlier than thirty (30) days after Customer's receipt of the statement). The
first and the final statement for Services will be for a partial month in the
event the service dates do not coincide with DeltaCom billing dates. Payments
received more than ten (10) days from the due date will be considered delinquent
and will bear interest at the
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rate of one and one half percent (1.5%) per month or at the maximum rate allowed
by law, whichever is less, on any sum remaining delinquent. Customer shall be
responsible for payment to DeltaCom for all excise, sales, use and other similar
taxes which may be levied by any governing body for Service furnished under this
Agreement. All statements shall be deemed to be correct and binding upon
Customer unless written notice is provided to DeltaCom of any disputed charges
within six (6) months of the date of the statement. In no event does such excuse
Customer from making payment within the time provided herein.
5. SUSPENSION OF SERVICE FOR NONPAYMENT: DeltaCom may suspend Service
ten (10) days after mailing or telefaxing written notice to Customer of
nonpayment of any sum fifteen (15) or more days past the statement due date (but
only if the Customer does not cure the nonpayment within the ten (10) day
period). Following a suspension of Service(s), DeltaCom may terminate the
Service(s) to Customer, in whole or in part, without further notice to Customer,
if nonpayment is not corrected within five (5) days of suspension of Service.
Neither suspension or termination of the Service will relieve Customer of any
obligation to pay DeltaCom's statement(s) for Services. Should this Agreement be
terminated by Customer prior to the expiration of the term of this Agreement,
Customer shall be responsible for payment of all reasonable costs, charges, and
expenses incurred by DeltaCom resulting from the early termination of this
Agreement.
6. SECURITY FOR PAYMENT: Upon request by DeltaCom, Customer agrees to
provide financial statements and/or other indications of financial
circumstances.
7. COMPLIANCE WITH ADMINISTRATIVE PROCEDURES: Customer shall comply with
the administrative procedures of DeltaCom which have been previously delivered
to Customer, and as the same may be amended from time to time by mutual
agreement of the parties in writing, regarding providing of documentation and
information necessary for DeltaCom to provide the Services described herein to
Customer.
8. BRANDING OF CALLS: Customer shall be responsible for assuring that
for billing purposes all Services provided hereunder shall be branded in the
name of Customer and that Customer's customers and any other end users to whom
the Services are offered by Customer are informed that the Services provided and
rates charged the customer and end user are rates established by Customer.
9. CANCELLATION: Either Party shall have the right to cancel this
Agreement without liability if DeltaCom is prohibited from furnishing the
Service or if any material rate or term contained herein is materially adversely
changed by order of the highest court of competent jurisdiction to which the
matter is appealed, the Federal Communications Commission, or any other federal,
state, or local government authority.
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10. USE AND PROTECTION OF INFORMATION: The parties agree that the terms
of this Agreement or any modifications hereto and any information exchanged
between them, except information which is in the public domain, in any form, is
confidential information ("Confidential Information"). The Parties agree that
during the term of this Agreement and for a period of three (3) years
thereafter, they will not, without the prior written consent of the disclosing
Party: (i) use any portion of such Confidential Information for any purpose
other than performance pursuant to this Agreement; or (ii) disclose any portion
of such Confidential Information to a third party; provided, however that the
recipient may disclose Confidential Information to the extent such disclosure is
required either by a governmental or regulatory authority or to enforce its
rights under this Agreement. The obligations to protect Confidential Information
shall remain in effect except to the extent that such Confidential Information
(a) becomes generally available to the public other than as a result of
unauthorized disclosure by the recipient Party, (b) has been released without
similar restriction by the disclosing Party to another person or entity, (c) was
known by the recipient Party prior to disclosure or (d) was independently
developed by or furnished by an independent third party to the recipient Party
without a breach of this Agreement. Confidential Information of a tangible
nature shall remain the property of the disclosing Party, and shall be returned
to the disclosing Party or shall be destroyed upon termination of this
Agreement. The recipient Party agrees to safeguard Confidential Information
utilizing the same degree of care utilized by the recipient Party in protecting
its own confidential information.
11. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY: IN NO EVENT
SHALL DELTACOM BE LIABLE TO CUSTOMER, OR ANY END USER OR ANY OTHER PARTY, PERSON
OR ENTITY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES,
OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF
MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, LOST DATA, CLAIMS OF
THIRD PARTIES, OR DEFECTS IN TRANSMISSION, OR DELAYS, INCLUDING THOSE WHICH
MAYBE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHERWISE ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS OF DELTACOM PURSUANT TO THIS
AGREEMENT, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE AND OTHERWISE.
DELTACOM MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE
DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE
OF THE SERVICE OR THE LOCAL ACCESS, OR AS TO ANY OTHER MATTER ALL OF WHICH
WARRANTIES BY DELTACOM ARE HEREBY EXCLUDED AND DISCLAIMED. For purposes of this
Paragraph, the term "DeltaCom" shall be deemed to include DeltaCom its parent
entity, affiliates and subsidiaries.
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12. INDEMNITY: (A) Each Party, its officers, agents or employees engaged
in performance under this Agreement shall at no time be deemed to be performing
as agents or employees of the other Party, or as joint venturers, and any acts,
errors or omissions of such officers, agents and employees shall not be deemed
to be those of the other Party. (B) Each Party shall indemnify and hold the
other and/or all of its officers, agents, servants, parent, subsidiaries and
employees ("Affiliates") or any of them, harmless from and against any and all
losses, claims, damages, liabilities, costs, and expenses ("Claims") imposed
upon either Party (including without limitation damages to property or injuries,
including death, to Affiliates, employees or subcontractors, and all other
persons performing this Agreement) as a result of a negligent act or omission on
the part of the indemnifying Party, its Affiliates or subcontractors in
connection with the performance of this Agreement or as a result of a breach or
default of any covenant of the indemnifying Party , its Affiliates or
subcontractors in connection with the performance of this Agreement or as a
result of a breach or default of any covenant of the indemnifying Party under
this Agreement.
13. FORCE MAJEURE: Except as provided in this Agreement, either Party
may delay performance hereunder due to causes beyond its reasonable control,
including but not limited to acts of God, fire, explosion, vandalism, cable cut,
storm or other similar catastrophes; any law, order, regulation, direction,
action or request of the United States government, or of any other government,
including state and local governments, having jurisdiction over either of the
parties, or of any department, agency, commission, court, bureau, corporation or
other instrumentality of any one or more of said governments, or of any civil or
military authority; national emergencies; insurrections; riots; wars; or
strikes, lock-outs, work stoppages or other labor difficulties. If such delay in
performance shall be on the part of DeltaCom and shall be for more than thirty
(30) days, then Customer may terminate this Agreement with no liability on the
part of any Party. The affected Party shall use its best efforts to remove the
cause of the delay.
14. ADDITIONAL PROVISIONS:
(A) The failure of either Party to give notice of default or to enforce
or insist upon compliance with any terms or conditions of this Agreement, the
waiver of any term or condition of this Agreement, or the granting of an
extension of time for performance, shall not constitute the permanent waiver of
any term or condition of this Agreement, and this Agreement and each of its
provisions shall remain at all times in full force and effect until modified by
the parties in writing.
(B) Each Party agrees to comply with, and shall require its agents,
servants, employees and contractors to comply with all applicable laws, rules,
regulations and orders of all governmental and quasi-governmental agencies
having jurisdiction over such Party or its telecommunication services and to
obtain and maintain in effect all permits, licenses, approvals, and agreements
that are needed to operate its telecommunication services and perform its
obligations under this Agreement.
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(C) In event suit is brought or an attorney is retained by any
Party to this Agreement to enforce the terms of this Agreement or to collect any
moneys due hereunder or to collect money damages for breach hereof, the
prevailing Party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorney's fees, court costs, costs of
investigation and other related expenses incurred in connection therewith. All
suits brought by either Party must be commenced within one (1) year of the
action on which the claim is based, or less if so required by Alabama law.
(D) No subsequent agreement between Customer and DeltaCom concerning the
Services shall be effective or binding unless it is made in writing, and no
representation, promise, inducement or statement or intention has been made by
either Party which is not embodied herein.
(E) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns; provided, however,
neither Party may assign or transfer its right or obligations under this
Agreement without prior written consent of the other Party, which consent shall
not be unreasonably withheld.
(F) Notices under this Agreement shall be in writing and delivered by
overnight express courier service or by registered or certified mail, return
receipt requested, postage paid, to the person whose names and business
addresses appear herein, or as otherwise provided by proper notice hereunder,
and the effective date of any notice under this Agreement shall be the date of
delivery or refusal of such notice, and not the date of mailing.
TO DELTACOM: Xxxxx Xxxxx, Vice President Special Markets
DeltaCom, Inc.
000 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxx, XX 00000
COPY TO: Assistant General Counsel
DeltaCom, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
TO CUSTOMER: Cybernet
Xxxxx Xxxxxxxx
000 Xxxx 0xx Xxxxxx
Xxxx Xxxxx, XX 00000
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(G) The Parties agree that in the event a decision or rating by a
regulatory authority at the federal, state or local level materially affects the
rights or obligations of either Party arising out of this Agreement, the Parties
will negotiate in good faith to modify this Agreement in light of such decision.
Should said decision or ruling prevent the continuance of these services then
either Party may terminate this Agreement with notice to the other Party without
further liability hereunder, except as may be provided in this Agreement.
(H) 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.
(I) This Agreement and all other documents and writings associated
herewith shall be governed by the laws of the state of Alabama. 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 remaining provisions of this Agreement and the Parties hereby
agree to negotiate with respect to any such invalid or unenforceable part to the
extent necessary to render such part valid and enforceable.
CUSTOMER:
CYBERNET
Witness: By: /s/ Xxxxx X. Xxxxxxxx, Xx.
-----------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
-----------------------------
Title: Chief Financial Officer
----------------------------
/s/ Xxxxx X. Xxxxx Date: May 1, 1997
------------------------------------ -----------------------------
DELTACOM:
Witness: By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
-----------------------------
Title:
-----------------------------
/s/ Date:
------------------------------------ -----------------------------
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***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
Service Description
SERVICES OFFERED
DeltaCom will provide the following services to Customer consisting of, but not
be limited to, the following:
Domestic and International Outbound Dedicated Services
Operator Services
Domestic Directory Assistance (NPA-555-1212)
"Extended" rates apply to [_______________________________].
The following services will be billed in increments of [_________]:
[___________________________]
The following services will be billed in increments of [__________________
__________________________________________________________] therereafter:
[________________________________]
The following services will be billed [_______________]:
[_____________________________________________]
ACCESS
[_____________________________________________________________________________
______________________________________________________________________________
______]
EXCLUSIVE PROVIDER
To the extent consistent with equal access requirements or any other legal or
regulatory requirements, Customer agrees that DeltaCom shall be the exclusive
provider of Customer's switched network services described in Attachment 1.1.
This exclusivity provision shall not prohibit or restrict in any manner Customer
from utilizing its own internal switch network services.
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***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 1.1
Base Rates
Customer shall be responsible for payment of all facility cost for any "long
haul" facilities, e.g., T1 facilities between Customer's locations and
DeltaCom's switch, to receive the following described rates:
Domestic Outbound Dedicated Services:
[__________________]
[_________________]
[___________________________]
International Outbound Dedicated Services:
[_________________________]
[_____________________________]
Domestic Directory Assistance (NPA-555-1212):
[____________________________________________________________________________
______]
[___________________________________________]
Customer listings (local service) must be listed with Xxxx for DA service
availability. This is to be provided to Customer by ITC/VTC or directly to Xxxx
or Customer.
Operator Services - see Exhibit A
Tariffed approved name for branded services by Customer must be filed and
provided to Operator Service group.
Separate trunk group from Operator Service switch to VTC will be required for
branding purposes.
There will be a [____] charge for the initial customized (branded) recording.
Any changes to the recording will incur a [___] for implementation.
Facility Cost
[_______] transport cost from DeltaCom POP located in Xxxxxxxxxx to DMS switch
located in West Point.
These charges are quoted to Customer at [________________]
[_______] transport cost from DeltaCom POP located in West Point to DeltaCom
switch located in Birmingham.
Call Recording
[________________________________________________________________________
_______________________________________________________________________]
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