EXHIBIT 10.12
Intermedia Communications Inc.
Frame Relay Service Reseller Agreement
THIS AGREEMENT is made and entered into as of this 21 day of January,
1997 by and between Intermedia Communications Inc., a Delaware corporation,
having its principal place of business at 0000 Xxxxx Xxxx Xxxxx, Xxxxx,
Xxxxxxx 00000 ("ICI") and CTC Communications Corp., a Massachusetts
corporation having its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Reseller").
WITNESSETH:
WHEREAS, ICI is a common carrier which owns and operates telecommunications
facilities and is in the business of providing telecommunications services.
WHEREAS, ICI desires Reseller to market ICI's Frame Relay Service Offering
(the "Service").
WHEREAS, Reseller desires to market the Service and is capable of properly
marketing such Service according to the terms hereof.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, the parties hereto agree as follows:
1. Grant: ICI hereby grants to Reseller the non-exclusive right to market the
Service pursuant to the rates, terms and conditions of this agreement and any
addendum referenced herein. ICI reserves the right, without obligation or
liability to Reseller for payment of a commission, compensation or otherwise,
to market the Service through its own employees or Resellers, through other
Resellers or otherwise.
2. Status of Reseller: The relationship between Reseller and ICI shall be
that of buyer and seller. Reseller shall conduct its business at its own
initiative, responsibility and expense. No employee of either party shall be
deemed to be in the employ of the other and neither party has any right or
authority to act on behalf of the other beyond that expressly granted herein.
No provision of this Agreement shall be construed to create a joint venture or
partnership between ICI and Reseller.
3. Duties of Reseller: CTC shall use its best efforts to market the Services.
"Best efforts" for this purpose will include the following: conducting an
active search to find customers whose profile of telecommunications and/or
data communications requirements is such that use of ICI Services may be
beneficial; educating those qualifying customers as to the benefits and
advantages of engaging ICI Services; introducing ICI sales staff as required
to qualifying customers; obtaining commitments and orders to procure ICI
Services; providing response on customer service issues relating to account
status and rudimentary technical issues. CTC also agrees to brand Intermedia
Frame Relay Services on CTC customer bills and charge no less than ICI tariff
pricing in billing CTC customers.
4. Duties of ICI: ICI shall furnish the Services. ICI activities will
include: providing pre and post sales technical support of CTC sales efforts;
coordinating the pricing, ordering, maintenance, and billing for all Local
Exchange Carrier services where CTC has no agency agreement in place with the
Local Exchange Carrier serving the location; providing single point of contact
management, maintenance and technical support in the operation of the service
to the customer.
5. Tariff: ICI and Reseller agree that the provision of the Service shall be
controlled by and subject to all applicable tariffs as set forth in EXHIBIT A
- INTERMEDIA FRAME RELAY PRICING.
6. Ordering: Reseller shall order services for their customers from ICI. The
Service will be billed by ICI directly to Reseller. ICI and Reseller shall
establish a mutually agreed upon service commitment date ( Service Date") and
reference number ("Reference Number") when services are ordered by Reseller
from ICI. ICI shall coordinate the pricing, ordering, maintenance, and
billing for all necessary Local Exchange Carrier, Access, and or Interexchange
Carrier services as required.
7. Billing: ICI shall invoice Reseller monthly for services ordered and
installed based on the final and agreed upon Service Date. The ICI invoice
shall contain a listing of detailed charges for ICI services, Local Exchange
Carrier services and Access services. CTC agrees to pay ICI 100% of the
monthly billed LEC services and 85% of the monthly billed ICI services.
Reseller shall have responsibility of invoicing and collecting payments from
its customers. Non-payment by Reseller's customer shall not constitute
grounds for non-payment by Reseller to ICI for services.
8. Confidential Treatment: The terms and conditions of this Agreement and
materials provided by ICI to Reseller or Reseller to ICI, including but not
limited to, customer lists, price sheets, price quotes, marketing and business
plans and projections, pursuant to this Agreement are disclosed in confidence,
solely for use in connection with carrying out the terms and conditions of
this Agreement. Both parties shall keep such information secret and
confidential and shall not release or disclose any of it to any third party
during the term of this agreement or for a period of 6 months following its
termination except in carrying out its obligations hereunder or on a
need-to-know basis Both parties shall take appropriate precautions,
contractual and otherwise, to prevent the unauthorized disclosure or misuse of
this confidential information by any of its employees or by any other person
having access to such information. At the expiration or sooner termination of
this Agreement, both parties shall return to the originator all confidential
or proprietary information received hereunder The foregoing obligations of
confidential treatment shall not apply, or shall terminate, with respect to
any particular portion of the confidential information which: i.) is known to
the receiving party at the time of disclosure to it; ii.) becomes publicly
known or available other than as a result of any disclosure hereunder; iii.)
is rightfully received from a third party; or, iv.) is independently
developed.
9. Limitation of Liability: ICI shall not be liable to Reseller or any
customers of Reseller in any way for any losses, including but not limited to,
loss of commissions, loss of or harm to Reseller's business, including, but
not limited to lost revenues, lost savings or lost profits, or incidental,
special or consequential damages due to mistakes, omissions, interruptions,
delays, errors, defects or otherwise occurring in the course of furnishing the
service. Nothing herein shall require ICI to accept responsibility for any
service provided by Reseller to its customers during this agreement or after
any termination hereof.
10. Indemnification: The Parties shall indemnify each other against, and hold
each other harmless from all liabilities, claims, demands, costs and judgments
(including reasonable attorneys' fees and causes of action arising; out of or
in connection with this Agreement caused by the failure to abide by the terms
and conditions of this Agreement or by the negligence or willful misconduct of
the Parties or of the Parties employees, Resellers or invitees.
11. Term and Termination: This agreement shall be effective as of the first
date written above and shall continue for a period of two (2) years ("Initial
Term") unless terminated in accordance with the provisions hereof. This
agreement can be terminated by either party upon (60) days written notice to
the other party. Any customer contracts entered into during the term of this
Agreement shall be subject to the terms of this Agreement and honored for the
committed contract terms by each party.
(a) Either party may terminate this Agreement in the event that the other
party commits a material breach of this Agreement and fails to cure such
breach within sixty (60) days after receipt of written notice of such breach
from the non-breaching party; provided, however, that in the event that the
material breach involves any violation of Section 8 (Confidential Treatment)
hereof, no opportunity to cure shall be allowed. In such event the
non-breaching party shall promptly notify the breaching party in writing of
it's intent to terminate this Agreement, and such termination shall be
effective after a transition period (~Transition Period-) of seven (7) days
after the date of delivery, or if mailed, the date of the mailing of the
notice of termination by the non-breaching party; provided, however, that if
the material breach involves any violation of Section 8 (Confidential
Treatment) hereof, the effective date of the termination shall be the date of
delivery of the notice of material breach.
(b) Bankruptcy - Either party may terminate this Agreement and any or all
outstanding customer arrangements placed hereunder by notice in writing, in
the event that the other makes an assignment for the benefit of creditors, or
admits in writing inability to pay debts as they mature; or a trustee or
receiver of the other, or of any substantial part of the other's assets is
appointed by any court; or a proceeding is instituted under any provision of
the Federal Bankruptcy Act by the other, or against the other and is
acquiesced in or is not dismissed within sixty (60) days or results in an
adjudication in bankruptcy.
(c} Both parties shall use their best efforts to ensure that any Transition
Period required under this Section 11 shall be executed in a timely and
orderly fashion and in a manner that is in the Customer's best interest and
consistent with any applicable legal requirements. At the end of such
Transition Period, neither Party shall have any obligation to the other under
this Agreement, except that, subject to the provisions of Section 21 (Entire
Agreement), hereof, those provisions that by their sense and context are
intended to survive the termination hereof shall survive such termination.
(d) Early Termination: In the event Reseller cancels or terminates all or any
portion of the services prior to the agreed expiration date, Reseller agrees
to pay to ICI a termination charge (as liquidated damages and not as a
penalty), as follows: (1) All non-recurring charges specified in the Service
Order, including those initially waived, plus (2) disconnection, early
cancellation or termination charges reasonably incurred by ICI on Resellers
behalf, plus (3) if cancellation occurs within the first year of the term of
the applicable Service Order, then the cancellation charge shall be the full
amount of the remaining recurring charges for Service due for the first year
plus fifty percent (50%) of the recurring charges for the second year of the
term plus twenty five (25%) of the remaining monthly charges for the remainder
of the term of the Service Order. If cancellation occurs after the first year
of the term, then the cancellation charge shall be fifty percent (50%) of the
remaining monthly charges for service due for the second year of the term plus
twenty five percent (25%) for the remainder of the term of the Service Order.
12. Force Majeure: Neither party shall be liable for delays in performing, or
failure to perform, this Agreement or any obligations hereunder, which are
directly attributable to causes beyond the reasonable control of the party so
delayed or failing to perform, including but not limited to, acts of God,
fires, strikes, war, failure of a common carrier, equipment or suppliers or
acts or intervention by any governmental authority. However, the party whose
performance is so delayed shall use good faith efforts to minimize the effects
of such delay.
13. Notices: All notices or other communications permitted or required
hereunder shall be in writing and mailed by certified mail, return receipt
requested, or sent by receipted overnight courier to the party at the address
first appearing above, to the attention of the signatories below. Notices
shall be deemed given three (3) days after deposit in the U.S. mail postage
prepaid, if sent by certified mail or when received or receipt is refused if
sent by receipted overnight courier.
14. Assignment: Either Party may not assign its rights or obligations under
this Agreement to any party without the prior written consent of the other
Party.
15. Governing Law: This Agreement shall be deemed to have been executed and
delivered in the State of Florida and it shall be governed by and construed in
accordance with the laws of the State of Florida.
16. Headings: The paragraph headings used in this Agreement are for purposes
of convenience only and shall not be deemed a part of this Agreement for
purposes of construction or interpretation.
17. No Inference: Neither this Agreement in its entirety nor any provision
herein shall be construed against either party as the drafter or originator
thereof.
18. Severability: In the event that any term or provision of this Agreement
shall be deemed or rendered void or unenforceable, the remainder of this
Agreement shall remain in full force and effect and such term or provision
shall be deemed stricken.
19. Waiver: No failure or delay by any party in exercising any right hereof
shall operate as a waiver.
20. Amendment: This Agreement may not be amended or modified except by in
writing, signed by both parties.
21. Entire Agreement: This Agreement and all attachments hereto, embody the
entire agreement and understanding between the parties and supersede all prior
oral and written, and contemporaneous oral, agreements and understandings
relating to the subject matter hereof. No representation, promise, inducement
or statement or intention has been made by either party which is not embodied
here in.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the date
first written above
CTC Communications Corp. Intermedia Communications, Inc.
