EXHIBIT 10.12
AGREEMENT BETWEEN THE COMPANY AND MCI INTERNATIONAL LTD. CO.
DATED AUGUST 14, 2003
MCI(R) SERVICE AGREEMENT
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MCI WORLDCOM COMMUNICATIONS, INC. CHINA WIRELESS COMMUNICATIONS, INC.
000 Xxxxx Xxxxxx, 0xx Xxxxx 0000 Xxxxxxx Xxxxxx Xx. Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 Xxxxxx Xxxx, XX 00000-0000
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXX III
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Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx III
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Title: VP, Business Development Title: Vice President
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Date: 8/27/03 Date: August 14, 2003
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ACCEPTANCE DEADLINE. This Agreement is binding upon execution by both parties.
Acceptance of this Agreement by MCI is subject to Customer meeting MCI's
standard credit terms and conditions, which may be based on commercially
available credit reviews and to which Customer hereby consents. This Agreement
shall be of no force and effect and the offer contained herein shall be deemed
withdrawn unless this Agreement is executed by Customer and delivered to MCI on
or before AUGUST 15, 2003.
This Agreement for MCI Services, together with any Attachments and Schedules
made part hereof ("Agreement"), is made by and between MCI WORLDCOM
COMMUNICATIONS, INC. ("MCI"), on behalf of itself and its affiliates and
successors and CHINA WIRELESS COMMUNICATIONS, INC. ("Customer"). MCI or its
providing affiliate will provide to Customer the Services as set forth herein.
The rates, discounts, charges and credits set forth herein shall be effective
the first day of the second full billing cycle following execution and delivery
of this Agreement by Customer to MCI ("Effective Date").
TERMS AND CONDITIONS
1. SERVICES. MCI will provide to Customer the international, interstate,
intrastate and local telecommunications services ("Services") identified in
Attachment A to this Agreement.
2. TERM. The "Term" shall begin on the Effective Date and end upon the
completion of thirty-six (36) monthly billing periods after the Acceptance Date,
as defined in Attachment A, Section 1.3.2.
3. TARIFF AND GUIDE. MCI's provision of Services to Customer will be governed
by MCI's international, interstate and state tariffs ("Tariff(s)") and MCI's
"Service Publication and Price Guide" ("Guide"), each as supplemented by this
Agreement. This Agreement incorporates by reference the terms of each such
Tariff and the Guide. The Guide is available to Customer on MCI's internet
website (xxx.xxx.xxx) ("Website") and at MCI's offices during regular business
hours at 00000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000. MCI may modify
the Guide from time to time, and any modification will be binding upon Customer.
Except for new services, service features, service options or service
promotions, which will become effective immediately upon their posting in the
Guide on the Website, any modification made to the Guide will become effective
beginning on the first day of the next calendar month following its posting on
the Website or, thereafter, on the first day of the next service billing cycle
whenever adjustments are made to rates or charges, provided that no modification
shall become effective and binding on Customer until it has been posted in the
Guide for at least fifteen (15) calendar days. The contractual relationship
between MCI and Customer shall be governed by the following order of precedence:
(i) the Tariffs to the extent applicable, (ii) the provisions of this Agreement,
and (iii) the Guide.
4. CHANGES TO THE GUIDE. If MCI makes any changes to the Guide (other than
changes to Governmental Charges referenced below) which affect Customer in a
material and adverse manner, Customer, as its sole remedy, may discontinue the
affected Service without liability by providing MCI with written notice of
discontinuance within sixty (60) days of the date such change is posted on the
Website. Customer shall pay all charges incurred up to the time of Service
discontinuance. MCI may avoid Service discontinuance if, within sixty (60) days
of receipt of Customer's written notice, it agrees to amend this Agreement to
eliminate the applicability of the material and adverse change. If a Service is
discontinued hereunder, the Customer's AVC will be reduced, as appropriate, to
accommodate the discontinuance. A "material and adverse change" shall not
include, nor be interpreted to include, (i) the introduction of a new service or
any new service feature associated with an existing service, including all
terms, conditions and prices relating thereto, or (ii) the imposition of or
changes to Governmental Charges.
5. RATES AND CHARGES. Customer agrees to pay the rates and charges set forth
in this Agreement. In the event (i) Customer receives any services that are not
the subject of rates, charges and discounts expressly set forth in this
Agreement, or (ii) Customer purchases any services after the expiration of the
Term, Customer shall pay MCI's standard rates as set forth in the Guide (or
Tariffs, if applicable) for those services. Rates set forth in the Guide and
Tariffs are subject to change.
5.1 CURRENCY CONVERSION.
(a) If MCI bills Customer in local currency, Customer will, in a
subsequent xxxx, be billed for or receive credit for any applicable
collection loss or gain, determined by comparing the amount of U.S. Dollars
credited to MCI's account with the amount of the relevant dollar-based xxxx
prior to its conversion to local currency.
(b) MCI's agreement to xxxx Customer in local currency shall be valid only
for those countries which permit the free transferability out of the country
of funds which are readily convertible to U.S. Dollars. If at any time during
the term of this Agreement, any international law, regulation or practice
prohibits or significantly impedes MCI's ability to receive U.S. Dollars in
payment of its international currency bills to Customer, the Customer should
find an alternate solution to pay MCI's bills.
(c) Where the charges of any overseas provider of a portion of the Service
are converted to U.S. Dollars and/or to local billing
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currency and included in Customer's invoices, the currency conversion will be
made as of a predetermined date at the rates published in the Wall Street
Journal. Any currency exchange loss or gain arising from billing as above
and the actual settlement with the overseas providers, called Settlement Loss
or Gain on Exchange, will be included in subsequent month's billing.
(d) Customer acknowledges and agrees that all charges owed to MCI under
this Agreement shall be paid by Customer to MCI in full, without deduction
for any banking charge or fee (the "Additional Charges"). Customer further
acknowledges and agrees that such Additional Charges are not the
responsibility of MCI and are Customer's sole responsibility. Customer also
acknowledges and agrees that Customer shall be solely responsible, as
necessary, for complying with any exchange control or banking regulations of
any of the countries related to the making or transfer of any payments due to
MCI under this Agreement.
6. MINIMUM ANNUAL VOLUME COMMITMENT ("AVC"). Customer agrees to pay MCI no
less than Three Hundred Thousand Dollars ($300,000) in Total Service Charges (as
hereinafter defined) during each Contract Year. A "Contract Year" shall mean
each consecutive twelve-month period of the Term commencing on the Acceptance
Date. "Total Service Charges" shall mean all charges, after application of all
discounts and credits, incurred by Customer for Services provided under this
Agreement, specifically excluding: (a) taxes, tax-like charges and tax-related
surcharges; (b) charges for equipment and colocation (unless otherwise expressly
stated herein); (c) charges incurred for goods or services where MCI or an MCI
affiliate acts as agent for Customer in its acquisition of goods or services;
(d) non-recurring charges; (e) "Governmental Charges" as defined below; (f)
international pass-through access charges (i.e., Type 3/PTT) and charges for
international access provided by MCI (i.e., Type 1) (unless otherwise expressly
stated herein); and (g) other charges expressly excluded by this Agreement.
7. UNDERUTILIZATION CHARGES. If, in any Contract Year during the Term,
Customer's Total Service Charges do not meet or exceed the AVC, then Customer
shall pay: (a) all accrued but unpaid usage and other charges incurred under
this Agreement; and (b) an "Underutilization Charge" in an amount equal to the
difference between the AVC and Customer's Total Service Charges during such
Contract Year.
8. GOVERNMENTAL CHARGES. MCI may adjust its rates and charges or impose
additional rates and charges in order to recover amounts it is required or
permitted by governmental or quasi-governmental authorities to collect from or
pay to others in support of statutory or regulatory programs ("Governmental
Charges"). Examples of such Governmental Charges include, but are not limited
to, Universal Service funding, Primary Interexchange Carrier Charge cost
recovery, and compensation payable to payphone service providers for use of
their payphones to access MCI's service.
9. TAXES. All charges are exclusive of applicable federal, state, local, and
foreign sales, use, excise, utility, gross receipts and value added taxes; other
taxes and tax-like charges; and tax-related surcharges as provided in MCI's
Tariffs and the Guide ("Taxes"), which Customer agrees to pay. If Customer
provides MCI with a duly authorized exemption certificate, MCI will exempt
Customer in accordance with law, effective on the date MCI receives the
certificate. Taxes based on MCI's net income shall be MCI's sole responsibility;
provided that, if Customer is required by the laws of any foreign tax
jurisdiction to withhold income or profits taxes from a payment, within 90 days
of the withholding Customer shall provide MCI with official tax certificates
documenting remittance of the taxes. The tax certificates shall be in a form
sufficient to document qualification of the taxes for the foreign tax credit
allowable against MCI's U.S. corporation income tax, and shall be accompanied by
an English translation. Upon receipt of the tax certificates, MCI will issue
Customer a credit for the amounts represented thereby.
10. EARLY TERMINATION CHARGES. If: (a) Customer terminates this Agreement
during the Term for reasons other than Cause; or (b) MCI terminates this
Agreement for Cause pursuant to the Sections entitled "Termination for Cause" or
"Termination by MCI," then Customer will pay, within thirty (30) days after such
termination: (i) all accrued but unpaid charges incurred through the date of
such termination, plus (ii) an amount equal to one hundred percent (100%) of the
AVC for each Contract Year (and a pro rata portion thereof for any partial
Contract Year) remaining in the unexpired portion of the Term on the date of
such termination, plus (iii) a pro rata portion of any and all credits received
by Customer.
11. PAYMENT. Customer agrees to prepay MCI for all Services, with payment due
on the date of invoice. Payments must be made at the address designated on the
invoice or other such place as MCI may designate. Amounts not paid on or before
thirty (30) days from invoice date shall be considered past due, and Customer
agrees to pay a late payment charge equal to the lesser of: (a) one and one-half
percent (1.5%) per month, compounded, or (b) the maximum amount allowed by
applicable law, as applied against the past due amounts. Customer must give MCI
written notice of a dispute with respect to MCI charges or the application of
Taxes within six (6) months of the date of the invoice, or such invoice shall be
deemed to be correct and binding on Customer. Customer shall be liable for the
payment of all fees and expenses, including attorney's fees, reasonably incurred
by MCI in collecting, or attempting to collect, any charges owed hereunder. All
Services will be billed in U.S. Dollars unless stated expressly otherwise.
11.1 Customer's first payment, due on the Acceptance Date (as defined in
Attachment A, Section 1.3.2), shall be in the amount of Eighty Thousand
Dollars ($80,000). If the amount of the first invoice is greater than
$80,000, Customer will pay the difference when Customer makes its second
monthly payment. If the amount of the first invoice is less than the $80,000,
the difference will be credited towards Customer's second monthly payment.
Each monthly billing period thereafter, Customer will pay: (a) one month's
monthly recurring charges for all Services ordered by Customer under
Attachment A, plus the difference between the immediately preceding month's
invoice total and the amount prepaid by Customer for such immediately
preceding month's Services (if such prepaid amount is less than the invoice
total); or (b) one month's monthly recurring charges for all Services ordered
by Customer under Attachment A, less the difference between the immediately
preceding month's invoice total and the amount prepaid by Customer for such
immediately preceding month's Services (if such prepaid amount is more than
the invoice total). For illustration purposes only, by way of example, if
Customer's first invoice totals $85,000, then Customer's second monthly
payment would equal $55,000, as follows: (i) the $5,000 difference between
the first invoice and the $80,000 initial prepayment by Customer, plus (ii)
the monthly recurring charges for the second month of Service (approximately
$50,000, based on Customer's projected initial Service orders).
12. TERMINATION FOR CAUSE. Either party may terminate this Agreement for
Cause. As to payment of invoices, "Cause" shall mean the Customer's failure to
pay any invoice within five (5) days after the date of the invoice. For all
other matters, "Cause" shall mean a breach by the other party of any material
provision of this Agreement, provided that written notice of the breach has been
given to the breaching party, and the breach has not been cured within thirty
(30) days after delivery of such notice.
13. TERMINATION BY MCI. MCI may discontinue service and/or terminate this
Agreement immediately upon notice to Customer (a) if Customer fails, after MCI's
request, to provide a bond or security deposit; (b) if Customer does not fully
pay any undisputed invoices within five (5) days after the invoice date; or (c)
if Customer provides
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false information to MCI regarding the Customer's identity, creditworthiness, or
its planned use of the Services. MCI may discontinue service immediately,
without notice, if interruption of service is necessary to prevent or protect
against fraud or otherwise protect MCI's personnel, facilities or services.
14. TERMINATION FOR UNAVAILABILITY OF LEASED FACILITIES. MCI will attempt to
procure the dedicated circuit(s) identified in Attachment A as "Leased
Circuits," including the China IPL Circuit, as defined in Section 1.3.1 of
Attachment A. MCI's ability to procure the Leased Circuit(s) is subject to
availability of such circuit(s) from an alternate access provider. If MCI fails
to enter into an agreement with an alternate access provider for the Leased
Circuit(s) within thirty (30) days of the Effective Date, MCI will so notify
Customer and the parties' obligations under this Agreement will terminate
without liability or further obligation.
15. DISCONNECTION OF SERVICE. Customer shall provide sixty (60) days prior
written notice for the disconnection of service. Notwithstanding any such
termination, Customer will remain liable for any applicable early termination
charges set forth in this Agreement. For a service disconnect notice to be
effective, Customer must receive a confirmation from MCI's Customer Service
organization stating that the disconnect notice was received and accepted.
16. CUSTOMER-OBTAINED FACILITIES. Customer is responsible for obtaining,
installing, and maintaining all equipment, software, wiring, power sources,
telephone connections and/or communications services necessary for use in
conjunction with the Services ("Customer Facilities") (including but not limited
to Customer Facilities for use in conjunction with the Leased Circuit(s)).
Customer is responsible for ensuring that the Customer Facilities are and
continue to be compatible with the Services. MCI is not responsible for the
availability, capacity or condition of any Customer Facilities associated with
the Services.
17. CONFIDENTIAL INFORMATION. Commencing on the date Customer executes this
Agreement and continuing for a period of three (3) years from the termination of
this Agreement, each party shall protect as confidential, and shall not disclose
to any third party, any Confidential Information received from the disclosing
party or otherwise discovered by the receiving party during the Term of this
Agreement, including, but not limited to, the pricing and terms of this
Agreement, and any information relating to the disclosing party's technology,
business affairs, and marketing or sales plans (collectively the "Confidential
Information"). The parties shall use Confidential Information only for the
purpose of this Agreement. The foregoing restrictions on use and disclosure of
Confidential Information do not apply to information that: (a) is in the
possession of the receiving party at the time of its disclosure and is not
otherwise subject to obligations of confidentiality; (b) is or becomes publicly
known, through no wrongful act or omission of the receiving party; (c) is
received without restriction from a third party free to disclose it without
obligation to the disclosing party; (d) is developed independently by the
receiving party without reference to the Confidential Information, or (e) is
required to be disclosed by law, regulation, or court or governmental order.
18. ACCEPTABLE USE. Use of the Service(s) and related equipment and facilities
must comply with the then-current version of the MCI Acceptable Use Policy
("Policy") for the countries from which Customer uses them (see
xxx.xxx.xxx/xxxxx). MCI reserves the right to suspend or terminate Service
effective upon notice for a violation of the Policy. Customer will indemnify and
hold harmless MCI from any losses, damages, costs or expenses resulting from any
third-party claim or allegation which if true, would constitute a violation of
the Policy. Each party will promptly notify the other of any such claim.
19. DOMAIN NAMES. Customer will indemnify MCI for cost or liability arising
from Customer's use of any domain name registered or administered on Customer's
behalf that violates the service xxxx, trademark or other intellectual property
rights of any third party. Customer irrevocably waives any claims against MCI
that may arise from the acts or omissions of domain name registries, registrars
or other authorities. Any violation of this Section is deemed a material breach
establishing Cause for termination.
20. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, MCI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MCI SERVICES,
RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. MCI SPECIFICALLY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. MCI MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY LEASED CIRCUIT(S), MCI'S ABILITY TO PROCURE ANY
LEASED CIRCUIT(S), OR ANY OTHER SERVICE PROVIDED BY MCI IN CONNECTION THEREWITH.
21. DISCLAIMER OF CERTAIN DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE
DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE,
PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, UNDER ANY
THEORY OF TORT, CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR NEGLIGENCE,
EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
22. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF MCI TO CUSTOMER IN
CONNECTION WITH THIS AGREEMENT, FOR ANY AND ALL CAUSES OF ACTIONS AND CLAIMS,
INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, SHALL BE
LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY CUSTOMER; OR (B) THE
AMOUNT PAID BY CUSTOMER TO MCI UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PERIOD
PRIOR TO ACCRUAL OF THE MOST RECENT CAUSE OF ACTION. NOTHING IN THIS SECTION
SHALL LIMIT MCI'S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL
MISCONDUCT; OR (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY MCI'S
NEGLIGENCE; OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY
PROXIMATELY CAUSED BY MCI'S NEGLIGENCE.
23. FORCE MAJEURE. Any delay in or failure of performance by either party under
this Agreement (other than a failure to comply with payment or surety
obligations) shall not be a breach of this Agreement if and to the extent caused
by events beyond the reasonable control of the party affected, including without
limitation, acts of God, embargoes, governmental restrictions, strikes, riots,
wars or other military action, civil disorders, rebellion, fires, floods,
vandalism, or sabotage. Market conditions and/or fluctuations (including a
downturn of Customer's business) shall not be deemed force majeure events. The
party whose performance is affected by such events shall promptly notify the
other party, giving details of the force majeure circumstances, and the
obligations of the party giving such notice shall be suspended to the extent
caused by the force majeure and so long as the force majeure continues, and the
time for performance of the affected obligation hereunder shall be extended by
the length of the delay caused by the force majeure event.
24. ASSIGNMENT. Neither party may assign this Agreement or any of its rights
hereunder without the prior written consent of the other party, which consent
shall not be unreasonably withheld; provided that MCI
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may assign this Agreement to an affiliate or successor without the Customer's
written consent.
25. SERVICE MARKS, TRADEMARKS AND NAME. Neither MCI nor Customer shall: (a) use
any service xxxx or trademark of the other party; or (b) refer to the other
party in connection with any advertising, promotion, press release or
publication unless it obtains the other party's prior written approval.
26. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
New York without regard to its choice of law principles. Non-U.S. Services shall
be subject to applicable local laws and regulations in any countries where such
Services originate or terminate, including applicable locally filed Tariffs.
27. COMPLIANCE WITH LAWS. All Services are provided subject to applicable local
laws and regulation, including the applicable Tariffs and price lists of MCI, in
the countries in which Service is provided. MCI is and shall be considered to be
the exporter for purposes of U.S. export control laws and regulations for all
software, hardware, equipment and technical staff provided by MCI under this
Agreement to Customer's non-U.S. locations. In addition, to the extent that
Customer may be considered an exporter or re-exporter under the U.S. Export
Control laws, MCI agrees to provide to Customer all information necessary to
assist Customer to comply with such laws, including without limitation, accurate
statements regarding the classification of MCI products. Customer is responsible
for complying with all laws and regulations including without imitation, (i)
local license or permit requirements, (ii) export, import and customs laws and
regulations (such as the export and re-export controls under U.S. Export
Administration Regulations and/or similar regulations of the U.S. or any other
country) which may apply to certain equipment, software and technical data
provided hereunder, and (iii) foreign corrupt practices acts. Notwithstanding
the foregoing, MCI does not represent that any necessary import, export or
customs licenses or approvals will be granted with respect to Services provided
hereunder.
28. NOTICE. All notices (including Customer's notice of disconnect), requests,
or other communications (excluding invoices) hereunder shall be in writing and
either transmitted via overnight courier, electronic mail, hand delivery or
certified or registered mail, postage prepaid and return receipt requested to
the parties at the following addresses. Notices will be deemed to have been
given when received. The cancellation of Service will be effective sixty (60)
days after MCI receives written notice of cancellation.
TO MCI WITH A COPY TO:
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MCI WORLDCOM Communications, Inc. MCI WORLDCOM Communications, Inc.
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0000 X. Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
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Attn: Director, Commercial Accounts Attn: Business Transactions Law &
Public Policy
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To Customer: At the address provided on Page 1.
29. ENTIRE AGREEMENT. This Agreement (and any Attachments and other documents
incorporated herein by reference) constitutes the entire agreement between the
parties with respect to the Services ordered under this Agreement and supersedes
all other representations, understandings or agreements that are not expressed
herein, whether oral or written. Except as otherwise set forth herein, no
amendment to this Agreement shall be valid unless in writing and signed by both
parties.
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ATTACHMENT A
SERVICES
1. SERVICES. For the following Services, Customer shall pay the applicable rates
and receive the applicable discounts listed below, if any. Customer shall not be
eligible to receive any other additional discounts, promotions and/or credits
(Tariffed or otherwise). For services that receive a discount off of the Guide /
Tariff rates, any change in the Guide / Tariff rates will be reflected in the
invoice for the next monthly billing cycle. For services that receive a
postalized rate which fluctuates with changes in the Guide / Tariff, those rates
will be reviewed on the first day of January during each calendar year of the
Term, and adjusted by an amount equal to the same percentage by which the
corresponding standard Guide / Tariff rates were adjusted during the immediately
preceding calendar year. For services with fixed rates, the rates shall remain
fixed for the Term. For services and charges not specifically set forth in this
Attachment, Customer shall pay MCI's standard Guide / Tariff rates or charges
for the applicable service.
1.1 DEDICATED ACCESS SERVICE (OPTIONS 1 & 2).
1.1.1 In lieu of any other discounts, Customer will receive the
3-year Access Term Discount Plan associated with the Reach the
Network Tiered Access Promotion, as set forth in the Guide,
for the Term of this Agreement.
1.1.2 In lieu of the rates and discounts provided under Section
1.1.1 above, and in lieu of any other rates or discounts,
Customer will pay the following local loop charges for
MCI-provisioned DS1 Access based on NPA-NXX. The following
rates shall be fixed for the Term:
NPA-NXX MONTHLY RECURRING LOCAL INSTALLATION COST
LOOP CHARGE
202-789 $202.08 $200.00
773-384 $202.08 $200.00
617-437 $202.08 $200.00
213-386 $202.08 $200.00
206-729 $202.08 $200.00
972-991 $202.08 $200.00
1.1.3 Acceptance of Dedicated Access Service orders by MCI under
this Agreement is contingent upon the availability of the
China IPL Circuit defined in Section 1.3.1 below.
1.2 ATM SERVICE. ATM Service allows Customer to transmit voice, video
and data communications over a single virtual network via a variety
of Customer network interface speeds and service categories without
protocol conversion. ATM Service is currently available in North
America and in select cities in Europe. ATM Service may include the
following: (i) equipment necessary to support the ATM Service,
including equipment located on Customer's premises and equipment
located on MCI's premises, (ii) local access facilities, (iii) a
Network Node (as defined below) for each location requiring
connectivity to the MCI network, and (iv) maintenance of the
equipment and services provided by MCI. A "Network Node" includes a
port connection, i.e., access to the MCI network, and the permanent
virtual circuits ("PVCs") assigned to said port.
1.2.1 DOMESTIC ATM SERVICE (OPTIONS 1 & 2). Customer shall pay MCI's
standard rates for Domestic ATM Service, including both
monthly recurring charges and one-time non-recurring
installation charges per location, less a fixed discount of
fifty-two percent (52%) which will be applied to Customer's
recurring port and PVC charges only.
1.2.2 INTERNATIONAL ATM SERVICE (OPTIONS 1 & 2). Customer shall pay
MCI's standard rates for International ATM Service (U.S.
Originating), including both monthly recurring charges and
one-time non-recurring installation charges per location less
a fixed discount of fifty-two percent (52%) which will be
applied to Customer's recurring port and PVC charges only.
1.2.3 INTERNATIONAL ATM SERVICE (NON-U.S. ORIGINATING) (OPTIONS 1 &
2). International ATM Service (Non-U.S. Originating) is MCI
ATM Service which originates outside the United States and
will be governed by the Guide as such Guide applies to
Internet, Enhanced, and Other Nonregulated Products and
Services to the extent permissible and not superseded by
applicable local laws and regulations (including foreign
Tariffs in those countries where the service originates and
terminates). Subject to the discounts specified herein,
Customer will pay Company's then-current standard rates and
charges for the International ATM Service (Non-U.S.
Originating). Such charges shall include:
o Non-recurring installation and reconfiguration charges;
o Monthly Recurring Charges, which shall include recurring
charges related to equipment, local access and maintenance
(all pursuant to a separate contract) and recurring
charges for Network Nodes, which shall be calculated on a
calendar-month billing period and billed monthly in
arrears by Company; and
o Ancillary Charges, which may include expedite and
cancellation charges as well as pre- and post-
engineering. Charges and credits due to changes in the
Service (and additions or deletions of) Network Nodes
during a month for which Customer has already been billed
by Company, shall appear on a subsequent xxxx.
1.2.3.1 INSTALLATION CHARGES. Customer will receive the
International ATM Port Installation Promotion and
shall abide by the terms and conditions contained
therein. For informational purposes, Customer's
standard (non-expedite) installation charge for its
DS-3 ATM port in Hong Kong, under the terms of the
International ATM Port Installation Promotion, is
$600.00.
1.2.3.2 DISCOUNTS. In lieu of any other discounts offered for
International ATM Service (Non-U.S. Originating),
Customer will receive a fixed discount of fifty-two
percent (52%) off of recurring port and PVC charges
only (i.e., exclusive of charges for
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any non-Guide service elements not specified as
eligible for discounts, access charges, access
coordination charges, network management charges,
CPE, and taxes and tax-related surcharges).
1.2.4 Acceptance of ATM Service orders by MCI under this Agreement
is contingent upon the availability of the China IPL Circuit
defined in Section 1.3.1 below.
1.3 INTERNATIONAL DEDICATED LEASED LINE/PRIVATE LINE SERVICE (OPTION 1).
1.3.1 For Customer's International Private Line (Option 1) Service
end-to-end DS-3 circuit between the China Netcom POP located
at 9/F Telecom Building, Xx. 0 Xxxxxxxxxx, Xxxxxxxx Xxxxxxxx,
Xxxxxxx 000000, Xxxxx and the MCI POP in Hong Kong, China (the
"China IPL Circuit"), in lieu of all other rates and
discounts, Customer will pay the charges set forth in Sections
1.3.1.1 and 1.3.1.2. The China IPL Circuit will be billed in
U.S. Dollars. The charges below do not include any special
construction costs or charges associated with Customer
Facilities.
1.3.1.1 NON-RECURRING CHARGES. Customer will pay $16,411.00
for standard one-time (non-expedite) installation
charges associated with the China IPL Circuit.
Customer will be responsible for any other applicable
non-recurring charges, including but not limited to
expedite charges, relocation/change charges, and
cancellation charges, which will be priced separately
at MCI's discretion. Notwithstanding anything to the
contrary in this Agreement, the Tariff(s) or Guide,
installation charges for the China IPL Circuit will
not be waived or offset by any installation credits
provided to Customer under any available promotions
or otherwise in the Tariff(s), Guide or this
Agreement.
1.3.1.2 MONTHLY RECURRING CHARGES. Customer will pay a
monthly recurring charge of $32,817.00 for the China
IPL Circuit. Amounts paid by Customer for Monthly
Recurring Charges for the China IPL Circuit will
contribute toward Customer's satisfaction of the AVC.
1.3.2 Billing for Monthly Recurring Charges for the China IPL
Circuit will commence on the first day of the first full
billing cycle following the date the circuit is first made
available for use (the "Acceptance Date"). The first invoice
will include non-recurring installation charges and fractional
monthly recurring charges from the date of first availability
of such facilities, as well as the monthly recurring charges
for the first full month of service.
1.3.3 Pricing for the China IPL Circuits is budgetary and subject to
availability of facilities.
1.3.4 The China IPL Circuit has a minimum circuit term commitment of
3 years. If Customer cancels the IPL Circuit prior to the
expiration date of the circuit term commitment for reasons
other than Cause, or MCI cancels the IPL Circuit for Cause or
pursuant to the provision of this Agreement entitled
Termination by MCI, then, unless the parties agree otherwise,
this Agreement will terminate and Customer will be billed and
required to pay the Early Termination Charges as set forth in
this Agreement. If the parties agree that this Agreement
should continue in full force and effect for the remainder of
the term notwithstanding the termination of the China IPL
Circuit, then Customer will be billed and required to pay an
early termination charge equal to the monthly recurring
charges for the remainder of the term of the China IPL Circuit
as of the date of such termination, and Customer's AVC for
each year remaining in the Term as of the date of such
termination will be reduced by an amount equal to twelve (12)
times the monthly recurring charge for the China IPL Circuit,
or a pro rata portion thereof for any partial Contract Year.
Customer will pay any early termination charges owed hereunder
within thirty (30) days after such termination.
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solomon/xxxx/china wireless msa1.2/08/01/03
MCI CONFIDENTIAL
6
