WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCENDTM SWITCHED SERVICES
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement (the "TSA") is entered into
as of the 10th day of August, 1998, by and between WORLDCOM NETWORK
SERVICES, INC., a Delaware corporation, with its principal office at Xxx
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("WorldCom") and GENX, LLC/DBA:
PREFERRED DISCOUNT PLAN , a COLORADO corporation, with its principal office
at 0000 XXXXXX XXX., XXXX. X-0 XXXXX XXXX, XX 00000 ("Customer").
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Switched Services; Other Documents; Start of Service.
(A) Services WorldCom agrees to provide and Customer agrees to accept and
pay for switched telecommunications services and other associated services
(collectively the "Switched Services") as further described in the "Service
Schedule" attached hereto and incorporated herein by reference, which
describes the particular services, specific terms and other information
necessary or appropriate for WorldCom to provide the Service to Customer.
The Switched Services provided by WorldCom are subject to (i) the terms and
conditions contained in this TSA and the Program Enrollment Terms (the
"PET") which are attached hereto and incorporated herein by reference, (ii)
the rates and discounts set forth in the applicable Rate and Discount
Schedule (the "Rate Schedule") attached hereto and incorporated herein by
reference, and (iii) each Service Request (described below) which is
accepted hereunder. The PET, as subscribed to by the parties, shall set
forth the Effective Date, the Service Term, Customer's minimum monthly
commitment, if any, and other information necessary to provide the Switched
Services under this TSA. In the event of a conflict between the terms of
this TSA, the PET, the Service Schedule, the Rate Schedule and the Service
Request(s), the following order of precedence will prevail: (1) the PET, (2)
the Rate Schedule, (3) the Service Schedule, (4) this TSA, and (5) Service
Request(s). This TSA, the PET, the Service Schedule and the applicable Rate
and Discount Schedule are sometimes collectively referred to as the
"Agreement".
(B) Service Requests Customer's requests to initiate or cancel Switched
Services shall be described in an appropriate WorldCom Service Request
("Service Request"). A Service Request may consist of machine readable
tapes, facsimiles or other means approved by WorldCom. Further, Service
Requests shall specify all reasonable information, as determined by
WorldCom, necessary or appropriate for WorldCom to provide the Switched
Service(s) in question, which shall include without limitation, the type,
quantity and end point(s) (when necessary) of circuits comprising a Service
Interconnection as described in the applicable Service Schedules, or
automatic number identification ("ANI") information relevant to the Switched
Service(s), the Requested Service Date, and charges, if any, relevant to the
Switched Services described in the Service Request. After WorldCom's receipt
and verification of a valid Service Request for SWITCHED ACCESS Service (as
defined in the Service Schedule) requiring a change in the primary
interexchange carrier ("PIC"), WorldCom agrees to (i) submit the ANI(s)
relevant to such Service Requests to the following local exchange carriers
("LECs") (with which
WorldCom currently has electronic interface capabilities) within ten (10)
days: Ameritech, Xxxx Atlantic, BellSouth, Nynex, Pacific Xxxx, Southwestern
Xxxx, US West, GTE and United, and (ii) submit the ANI(s) relevant to such
Service Requests to those LECs with which WorldCom does not have electronic
interface capabilities within a reasonable time.
(C) Start of Service WorldCom's obligation to provide and Customer's
obligation to accept and pay for non-usage sensitive charges for Switched
Services shall be binding to the extent provided for in this Agreement upon
the submission of an acceptable Service Request to WorldCom by Customer.
Customer's obligation to pay for usage sensitive charges for Switched
Services shall commence with respect to any Switched Service as of the date
the Switched Service in question is made available to and used by Customer
("Start of Service"), but in no event later than the "Requested Service
Date" if such Switched Service is available for Customer's use as of such
Requested Service Date. Start of Service for particular Services shall be
further described in the Service Schedule relevant to the Switched Services
in question.
2. Cancellation.
(A) Cancellation Charge At any time after the Effective Date, Customer may
cancel this Agreement if Customer provides written notification thereof to
WorldCom not less than thirty (30) days prior to the effective date of
cancellation. In such case (or in the event WorldCom terminates this
Agreement as provided in Section 7), Customer shall pay to WorldCom all
charges for Services provided through the effective date of such
cancellation plus a cancellation charge (the "Cancellation Charge") equal to
one hundred percent (100%) of Customer's commitment(s), if any, (as
described in the PET) that would have become due for the unexpired portion
of the Service Term.
(B) Liquidated Damages It is agreed that WorldCom's damages in the event
Customer cancels this Agreement shall be difficult or impossible to
ascertain. The provision for a cancellation charge in Subsection 2(A) above
is intended, therefore, to establish liquidated damages in the event of a
cancellation and is not intended as a penalty.
(C) Cancellation Without Charge Notwithstanding anything to the contrary
contained in Subsection 2(A) above, Customer may cancel this Agreement
without incurring any cancellation charge if (i) WorldCom fails to provide a
network as warranted in Section 8 below; (ii) WorldCom fails to deliver call
detail records promptly based on the frequency selected by Customer (i.e.,
monthly, weekly or daily); or (iii) WorldCom fails to submit ANI(s) relevant
to such Service Requests to the LECs within the time period described in
Subsection 1(B) above. Provided, however, Customer must give WorldCom
written notice of any such default and an opportunity to cure such default
within five (5) days of the notice. In the event WorldCom fails to cure any
such default within the five-day period on more than three (3) occasions
within any six (6) month period, Customer may cancel this Agreement without
incurring any cancellation charge.
3. Customer's End Users.
(A) End Users Customer will obtain and upon WorldCom's request provide
WorldCom (within two (2) business days of the date of the request) a written
Letter of Agency ("LOA") acceptable to WorldCom [or with any other means
approved by the Federal Communications Commission ("FCC") or any applicable
public utility commission ("PUC")], for each ANI indicating the consent of
such end user of Customer ("End User") to be served by Customer and
transferred (by way of change of such End User's designated PIC) to the
WorldCom network prior to order processing.
Each LOA will provide, among other things, that the End User has consented
to the transfer being performed by Customer or Customer's designee. When
applicable, Customer will be responsible for notifying its End Users, in
writing (or by any other means approved by the FCC) that (i) a transfer
charge will be reflected on their LEC xxxx for effecting a change in their
PIC, (ii) the entity name under which their interstate, intrastate and/or
operator services will be billed (if different from Customer), and (iii) the
"primary" telephone number(s) to be used for maintenance and questions
concerning their long distance service and/or billing. Customer agrees to
send WorldCom a copy of the documentation Customer uses to satisfy the above
requirements promptly upon request of WorldCom. WorldCom may change the
foregoing requirements for Customer's confirming orders and/or for notifying
End Users regarding the transfer charge at any time in order to conform with
applicable FCC and state regulations. Provided, however, Customer will be
solely responsible for ensuring that the transfer of End Users to the
WorldCom network conforms with applicable FCC and state regulations,
including without limitation, the regulations established by the FCC with
respect to verification of orders for long distance service generated by
telemarketing as promulgated in 47 C.F.R., Part 64, Subpart K,
Section64.1100 or any successor regulation(s).
(B) Transfer Charges/Disputed Transfers Customer agrees that it is
responsible for (i) all charges incurred by WorldCom to change the PIC of
End Users to the WorldCom network, (ii) all charges incurred by WorldCom to
change End Users back to their previous PIC arising from disputed transfers
to the WorldCom network plus, at WorldCom's option, an administrative charge
equal to twenty percent (20%) of such charges, and (iii) any other damages
suffered by or awards against WorldCom resulting from disputed transfers.
(C) Excluded ANIs WorldCom has the right to reject any ANI supplied by
Customer for any of the following reasons: (i) WorldCom is not authorized to
provide or does not provide long distance services in the particular
jurisdiction in which the ANI is located, (ii) a particular ANI submitted by
Customer is not in proper form, (iii) Customer is not certified to provide
long distance services in the jurisdiction in which the ANI is located, (iv)
Customer is in material default of this Agreement, (v) Customer fails to
cooperate with WorldCom in implementing reasonable verification processes
determined by WorldCom to be necessary or appropriate in the conduct of
business, or (vi) any other circumstance reasonably determined by WorldCom
which could adversely affect WorldCom's performance under this Agreement or
WorldCom's general ability to transfer its other customers or other end
users to the WorldCom network, including without limitation, WorldCom's
ability to electronically effect PIC changes with the LECs. In the event
WorldCom rejects an ANI, WorldCom will notify Customer of its decision
specifically describing the rejected ANI and the reason(s) for rejecting
that ANI, and will not incur any further liability under this Agreement with
regard to that ANI. Further, any ANI requested by Customer for Switched
Services may be deactivated by WorldCom if no Switched Services xxxxxxxx
relevant thereto are generated in any three (3) consecutive calendar
month/billing periods. WorldCom will be under no obligation to accept ANIs
within the last full calendar month period preceding the scheduled
expiration of the Service Term.
(D) Records Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Switched Services, including, but not
limited to, appropriate and valid LOAs from End Users for a period of not
less than (twelve) 12 months or such longer period as may be required by
applicable law, rule or regulation. Customer shall indemnify WorldCom for
any costs, charges or expenses incurred by WorldCom arising from disputed
PIC selections involving Switched Services to be provided to Customer for
which Customer cannot produce an appropriate LOA relevant to the ANI and PIC
charge in question, or when WorldCom is not reasonably satisfied that the
validity of a disputed LOA has been resolved.
(E) Customer Service Customer will be solely responsible for billing its
End Users and providing such End Users with customer service. Customer
agrees to notify WorldCom as soon as reasonably possible in the event an End
User notifies Customer of problems associated with the Switched Services,
including without limitation, excess noise, echo, or loss of service.
4. Customer's Responsibilities.
(A) Expedite Charges In the event Customer requests expedited services
and/or changes to Service Requests and WorldCom agrees to such request,
WorldCom will pass through the charges assessed by any supplying parties
(e.g., local access providers) for such expedited charges and/or changes to
Service Requests involved at the same rate to Customer. WorldCom may further
condition its performance of such request upon Customer's payment of such
additional charges to WorldCom.
(B) Fraudulent Calls Customer shall indemnify and hold WorldCom harmless
from all costs, expenses, claims or actions arising from fraudulent calls of
any nature which may comprise a portion of the Switched Services to the
extent that the party claiming the call(s) in question to be fraudulent is
(or had been at the time of the call) an End User of such Switched Services
through Customer or an end user of the Switched Services through Customer's
distribution channels. Customer shall not be excused from paying WorldCom
for Switched Services provided to Customer or any portion thereof on the
basis that fraudulent calls comprised a corresponding portion of the
Switched Services. In the event WorldCom discovers fraudulent calls being
made (or reasonably believes fraudulent calls are being made), nothing
contained herein shall prohibit WorldCom from taking immediate action
(without notice to Customer) that is reasonably necessary to prevent such
fraudulent calls from taking place, including without limitation, denying
Switched Services to particular ANIs or terminating Switched Services to or
from specific locations.
5. Charges and Payment Terms.
(A) Payment WorldCom xxxxxxxx for Switched Services hereunder are made on a
monthly basis (or such other basis as may be mutually agreed to by the
parties) following Start of Service. Subject to Subsection 5(C) below,
Switched Services shall be billed at the rates set forth in the applicable
Rate and Discount Schedule attached hereto. Customer will be notified of
WorldCom's time of day rate periods (including WorldCom Recognized National
Holidays). Discounts, if any, applicable to the rates for certain Services
are set forth in the Rate and Discount Schedule. Customer will pay all
undisputed charges relative to each WorldCom invoice for Switched Services
within thirty (30) days of the invoice date set forth on each WorldCom
invoice to Customer ("Due Date"). If payment is not received by WorldCom on
or before the Due Date, Customer shall also pay a late fee in the amount of
the lesser of one and one-half percent (1 1/2 %) of the unpaid balance of
the charges for Switched Services rendered per month or the maximum lawful
rate under applicable state law.
(B) Taxes Customer acknowledges and understands that WorldCom computes all
charges herein exclusive of any applicable federal, state or local use,
excise, gross receipts, sales and privilege taxes, duties, fees or similar
liabilities (other than general income or property taxes), whether charged
to or against WorldCom or Customer because of the Switched Services
furnished to Customer ("Additional Charges"). Customer shall pay such
Additional Charges in
addition to all other charges provided for herein. Customer will not be
liable for certain Additional Charges if Customer provides WorldCom with an
appropriate exemption certificate.
(C) Modification of Charges WorldCom reserves the right to eliminate
particular Switched Services and/or modify charges for particular Switched
Services (which charge modifications shall not exceed then-current generally
available WorldCom charges for comparable services), upon not less than
sixty (60) days prior notice to Customer, which notice will state the
effective date for the charge modification. In the event WorldCom notifies
Customer of the elimination of a particular Switched Service and/or an
increase in the charges, Customer may terminate this Agreement without
incurring a cancellation charge only with respect to the Switched Service(s)
affected by the increase in charges. In order to cancel such Switched
Service(s), Customer must notify WorldCom, in writing, at least thirty (30)
days prior to the effective date of the increase in charges. In the event
Customer cancels its subscription to a particular Switched Service as
described in this Subsection 5(C), WorldCom and Customer agree to negotiate
in good faith concerning Customer's minimum monthly commitment, if any,
described in the PET.
(D) Billing Disputes Notwithstanding the foregoing, amounts reasonably
disputed by Customer (along with late fees attributable to such amounts)
shall apply but shall not be due and payable for a period of sixty (60) days
following the Due Date therefor, provided Customer: (i) pays all undisputed
charges on or before the Due Date, (ii) presents a written statement of any
billing discrepancies to WorldCom in reasonable detail on or before the Due
Date of the invoice in question, and (iii) negotiates in good faith with
WorldCom for the purpose of resolving such dispute within said sixty (60)
day period. In the event such dispute is mutually agreed upon and resolved
in favor of WorldCom, Customer agrees to pay WorldCom the disputed amounts
together with any applicable late fees within ten (10) days of the
resolution (the "Alternate Due Date"). In the event such dispute is mutually
agreed upon and resolved in favor of Customer, Customer will receive a
credit for the disputed charges in question and the applicable late fees. In
the event WorldCom has responded to Customer's dispute in writing and the
parties fail to mutually resolve or settle the dispute within such sixty
(60) day period (unless WorldCom has agreed in writing to extend such
period) all disputed amounts together with late fees shall become due and
payable, and this provision shall not be construed to prevent Customer from
pursuing any available legal remedies. WorldCom shall not be obligated to
consider any Customer notice of billing discrepancies which are received by
WorldCom more than sixty (60) days following the Due Date of the invoice in
question.
6. Credit; Creditworthiness:
(A) Credit Customer's execution of this Agreement signifies Customer's
acceptance o WorldCom's initial and continuing credit approval procedures
and policies. WorldCom reserves the right to withhold initiation or full
implementation of any or all Switched Services under this Agreement pending
WorldCom's initial satisfactory credit review and approval thereof which may
be conditioned upon terms specified by WorldCom, including, but not limited
to, security for payments due hereunder in the form of a cash deposit or
other means. WorldCom reserves the right to modify its requirements, if any,
with respect to any security or other assurance provided by Customer for
payments due hereunder in light of Customer's actual usage when compared to
projected usage levels upon which any security or assurance requirement was
based.
(B) Creditworthiness If at any time there is a material adverse change in
Customer's creditworthiness, then in addition to any other remedies
available to WorldCom, WorldCom may elect, in its sole discretion, to
exercise one or more of the following remedies: (i) cause Start of
Service for Switched Services described in a previously executed Service
Request to be withheld; (ii) cease providing Switched Services pursuant to a
Suspension Notice in accordance with Section 7(A); (iii) decline to accept a
Service Request or other requests from Customer to provide Switched Services
which WorldCom may otherwise be obligated to accept and/or (iv) condition
its provision of Switched Services or acceptance of a Service Request on
Customer's assurance of payment which shall be a deposit or such other means
to establish reasonable assurance of payment. An adverse material change in
Customer's creditworthiness shall include, but not be limited to: (i)
Customer's material default of its obligations to WorldCom under this or any
other agreement with WorldCom; (ii) failure of Customer to make full payment
of all undisputed charges due hereunder on or before the Due Date (or
disputed charges on or before the Alternate Due Date) on three (3) or more
occasions during any period of twelve (12) or fewer months or Customer's
failure to make such payment on or before the Due Date (or the Alternate Due
Date, if applicable) in any two (2) consecutive months; (iii) acquisition of
Customer (whether in whole or by majority or controlling interest) by an
entity which is insolvent, which is subject to bankruptcy or insolvency
proceedings, which owes past due amounts to WorldCom or any entity
affiliated with WorldCom or which is a materially greater credit risk than
Customer; or, (iv) Customer's being subject to or having filed for
bankruptcy or-insolvency proceedings or the legal insolvency of Customer.
7. Remedies for Breach.
(A) Suspension of Service In the event all undisputed charges due pursuant
to WorldCom's invoice are not paid in full by the Due Date or disputed
charges owed by Customer, if any, are not paid in full by the Alternate Due
Date, WorldCom shall have the right, after giving Customer at least ten (10)
days prior notice and opportunity to pay such charges within such 10-day
period, to suspend all or any portion of the Switched Services to Customer
("Suspension Notice") until such time (designated by WorldCom in its
Suspension Notice) as Customer has paid in full all undisputed charges then
due to WorldCom, including any late fees. Following such payment, WorldCom
shall reinstitute Switched Services to Customer only when Customer provides
WorldCom with satisfactory assurance of Customer's ability to pay for such
Switched Services (i.e., a deposit, letter of credit or other means
acceptable to WorldCom) and Customer's advance payment of the cost of
reinstituting such Switched Services. If Customer fails to make the required
payment by the date set forth in the Suspension Notice, Customer will be
deemed to have canceled the Services suspended effective as of the date of
suspension which cancellation shall not relieve Customer for payment of
applicable cancellation charges as described in Section 2.
(B) Disconnection of Service In the event Customer is in material breach of
this Agreement, including without limitation, failure to pay all undisputed
charges due hereunder by the date stated in the Suspension Notice described
in Subsection 7(A) above, WorldCom shall have the right, after giving
Customer at least five (5) days prior written notice and opportunity to cure
(which notice may be given instead of or in conjunction with the Suspension
Notice described in Subsection 7(A) above), and in addition to foreclosing
any security interest WorldCom may have, to (i) disconnect all or any
portion the Switched Services being provided hereunder and/or terminate this
Agreement; (ii) withhold billing information from Customer; and/or (iii)
contact the End Users (for whom calls are originated and terminated solely
over facilities comprising the WorldCom network) directly and xxxx such End
Users directly until such time as WorldCom has been paid in full for the
amount owed by Customer. If Customer fails to make payment by the date
stated in the Suspension Notice and WorldCom, after giving Customer five (5)
days prior
written notice, terminates this Agreement as provided in this Section 7,
such termination shall not relieve Customer for payment of applicable
cancellation charges as described in Section 2 above.
8. Warranty. WorldCom will use reasonable efforts under the circumstances
to maintain its overall network quality. The quality of Switched Services
provided hereunder shall be consistent with telecommunications common
carrier industry standards, government regulations and sound business
practices. WORLDCOM MAKES NO OTHER WARRANTIES ABOUT THE SWITCHED SERVICES
PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. Liability; General Indemnity; Reimbursement.
(A) Limited Liability IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR
CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY MANNER FROM THIS
AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) General Indemnity In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of the Switched Services through
Customer, then Customer agrees to forever indemnify and hold WorldCom, its
affiliated companies and any third-party provider or operator of facilities
employed in provision of the Switched Services harmless from and against any
and all claims, demands, suits, actions, losses, damages, assessments or
payments which those parties may assert arising out of or relating to any
defect in the Switched Services.
(C) Reimbursement Customer agrees to reimburse WorldCom for all reasonable
costs and expenses incurred by WorldCom due to WorldCom's direct
participation (either as a party or witness) in any administrative,
regulatory or criminal proceeding concerning Customer if WorldCom's
involvement in said proceeding is based solely on WorldCom's provision of
Switched Services to Customer.
10. Force Majeure. If WorldCom's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable control including, but not limited to, acts of God,
fire, explosion, vandalism, cable cut, storm or other similar occurrence,
any law, order, regulation, direction, action or request of the United
States government, or state or local governments, or of any department,
agency, commission, court, bureau, corporation or other instrumentality of
any one or more such governments, or of any civil or military authority, or
by national emergency, insurrection, riot, war, strike, lockout or work
stoppage or other labor difficulties, or supplier failure, shortage, breach
or delay, then WorldCom shall be excused from such performance on a
day-to-day basis to the extent of such restriction or interference. WorldCom
shall use reasonable efforts under the circumstances to avoid or remove such
causes or nonperformance and shall proceed to perform with reasonable
dispatch whenever such causes are removed or cease.
11. State Certification. Customer warrants that in all jurisdictions in
which it provides long distance services that require certification, it has
obtained the necessary certification from the appropriate governmental
authority and, if required by WorldCom, agrees to provide proof of such
certification acceptable to WorldCom. In the event Customer is prohibited,
either on a temporary or permanent basis, from continuing to conduct its
telecommunications operations in a given state, Customer shall (i)
immediately notify WorldCoM by facsimile, and (ii) send written notice to
WorldCom within twenty-four (24) hours of such prohibition.
12. Interstate/intrastate Service. Except with respect to Services
specifically designated as intrastate Services or international Services,
the rates provided to Customer in the Service Schedule are applicable only
to switched Services if such Switched Services are used for carrying
interstate telecommunications (i.e., Switched Services subject to FCC
jurisdiction). WorldCom shall not be obligated to provide Switched Services
with end points within a single state or Switched Services which
originate/terminate at points both of which are situated within a single
state. In those states where WorldCom is authorized to provide intrastate
service (i.e., telecommunications transmission services subject to the
jurisdiction of state regulatory authorities), WorldCom will, at its option,
provide intrastate Switched Services pursuant to applicable state laws,
regulations and applicable tariff, if any, filed by WorldCom with state
regulatory authorities as required by applicable law.
13. Authorized Use of WorldCom Name: Press Releases. Without WorldCom's
prior written consent, Customer shall not (i) refer to itself as an
authorized representative of WorldCom whenever it refers to the Switched
Services in promotional, advertising or other materials, or (ii) use
WorldCom's logos, trade marks, service marks, or any variations thereof in
any of its promotional, advertising or other materials. Additionally,
Customer shall provide to WorldCom for its prior review and written
approval, all promotions, advertising or other materials or activity using
or displaying WorldCom's name or the Services to be provided by WorldCom.
Customer agrees to change or correct, at Customer's expense, any such
material or activity which WorldCom, in its sole judgment, determines to be
inaccurate, misleading or otherwise objectionable. Customer is explicitly
authorized to only use the following statements in its sales literature or
if in response to an inquiry by Customer's end user: (i) "Customer utilizes
the WorldCom network", (ii) "Customer utilizes WorldCom's facilities", (iii)
"WorldCom provides only the network facilities", and (iv) "WorldCom is our
network services provider". Except as specifically provided in this Section
13, the parties further agree that any press release, advertisement or
publication generated by a party regarding this Agreement, the Services
provided hereunder or in which a party desires to mention the name of the
other party or the other party's parent or affiliated company(ies), will be
submitted to the non-publishing party for its written approval prior to
publication.
14. Notices. Notices under this Agreement shall be in writing and delivered
to the person identified below at the offices of the parties as they appear
below or as otherwise provided for by proper notice hereunder. Customer
shall notify WorldCom in writing if Customer's billing address is different
than the address shown below. The effective date for any notice under this
Agreement shall be the date of actual receipt of such notice by the
appropriate party, notwithstanding the date of mailing or transmittal via
hand delivery or facsimile.
If to WorldCom: WorldCom Network Services, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Carrier Sales Dept.
If to Customer: GENX, LLC/DBA: PREFERRED DISCOUNT PLAN
0000 XXXXXX XXX., XXXX. X-0
XXXXX XXXX, XX 00000
Attn: XXXX XXXXXX
Telephone No.: 000 000-0000
Fax No.: 000- 000X 0000
15. No-Waiver. No term or provision of this Agreement shall be deemed waived
and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived
or consented. A consent to waiver of or excuse for a breach or default by
either party, whether express or implied, shall not constitute a consent to,
waiver of, or excuse for any different or subsequent breach or default.
16. Partial Invalidity: Government Action.
(A) Partial Invalidity 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,
rule or regulation, that part shall be ineffective to the extent of such
invalidity only, without in any way affecting the remaining parts of that
provision or the remaining provisions of this Agreement. In such event,
Customer and WorldCom will negotiate in good faith with respect to any such
invalid or unenforceable part to the extent necessary to render such part
valid and enforceable.
(B) Government Action Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an affected
portion of the Switched Service if any material rate or term contained
herein and relevant to the affected Switched Service is substantially
changed (to the detriment of the terminating party) or found to be unlawful
or the relationship between the parties hereunder is found to be unlawful by
order of the highest court of competent jurisdiction to which the matter is
appealed, the FCC, or other local, state or federal government authority of
competent jurisdiction.
17. Exclusive Remedies. Except as otherwise specifically provided for
herein, the remedies set forth in this Agreement comprise the exclusive
remedies available to either party at law or in equity.
18. Use of Service. Upon WorldCom's acceptance of a Service Request
hereunder, WorldCom will provide the Switched Services specified therein to
Customer upon condition that such Switched Services shall not be used for
any unlawful purpose. The provision of Switched Services will not create a
partnership or joint venture between the parties or result in a joint
communications service offering to any third parties, and WorldCom and
Customer agree that this Agreement, to the extent it is subject to FCC
regulation, is an inter-carrier agreement which is not subject to the filing
requirements of Section 211 (a) of the Communications Act of 1934 (47 U.S.C.
Section 211 (a)) as implemented in 47 C.F.R. Section 43.51.
19. Choice of Law; Forum.
(A) Law This Agreement shall be construed under the laws of the State of
Oklahoma without regard to choice of law principles.
(B) Forum Any legal action or proceeding with respect to this Agreement may
be brought in the Courts of the State of Oklahoma in and for the County of
Tulsa or the United States of America for the Northern District of Oklahoma.
By execution of this Agreement, both Customer and WorldCom hereby submit to
such jurisdiction, hereby expressly waiving whatever rights may correspond
to either of them by reason of their present or future domicile. In
furtherance of the foregoing, Customer and WorldCom hereby agree to service
by U.S. Mail at the notice addresses referenced in Section 14. Such service
shall be deemed effective upon the earlier of actual receipt or seven (7)
days following the date of posting.
20. Proprietary Information.
(A) Confidential Information The parties understand and agree that the
terms and conditions of this Agreement (but not the existence thereof), all
documents referenced herein (including invoices to Customer for Switched
Services provided hereunder), communications between the parties regarding
this Agreement or the Switched Services to be provided hereunder (including
price quotes to Customer for any services proposed to be provided or
actually provided hereunder), as well as such information relevant to any
other agreement between the parties (collectively "Confidential
Information"), are confidential as between Customer and WorldCom.
(B) Limited Disclosure A party shall not disclose Confidential Information
(unless subject to discovery or disclosure pursuant to legal process), to
any other party other than the directors, officers, and employees of a party
or a party's agents including their respective attorneys, consultants,
brokers, lenders, insurance carriers or bona fide prospective purchasers who
have specifically agreed in writing to non-disclosure of the terms and
conditions hereof. Any disclosure hereof required by legal process shall
only be made after providing the non-disclosing party with notice thereof in
order to permit the non-disclosing party to seek an appropriate protective
order or exemption. Violation by a party or its agents of the foregoing
provisions shall entitle the non-disclosing party, at its option, to obtain
injunctive relief without a showing of irreparable harm or injury and
without bond.
(C) Survival of Confidentiality The provisions of this Section 20 will be
effective as of the date of this Agreement and remain in full force and
effect for a period which will be the longer of (i) one (1) year following
the date of this Agreement, or (ii) one (1) year from the termination of all
Services hereunder.
21. Successors and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
or assigns, provided, however, that Customer shall not assign or transfer
its rights or obligations under this Agreement without the prior written
consent of WorldCom, which consent shall not be unreasonably withheld or
delayed, and further provided that any assignment or transfer without such
consent shall be void.
22. General.
(A) Survival of Terms The terms and provisions contained in this Agreement
that by their sense and context are intended to survive the performance
thereof by the parties hereto shall so survive the completion of performance
and termination of this Agreement, including, without limitation, provisions
for indemnification and the making of any and all payments due hereunder.
(B) Headings Descriptive headings in this Agreement are for convenience only
and shall not affect the construction of this Agreement.
(C) Industry Terms Words having well-known technical or trade meanings shall
be so construed, and all listings of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
(D) Rule of Construction No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of this
Agreement.
23. Entire Agreement. This Agreement consists of (i) all the terms and
conditions contained herein, and (ii) all documents incorporated herein
specifically by reference. This TSA constitutes the complete and exclusive
statement of the understandings between the parties and supersedes all
proposals and prior agreements (oral or written) between the parties
relating to the Switched Services provided hereunder. No subsequent
agreement between the parties concerning the Switched Services shall be
effective or binding unless it is made in writing and subscribed to by
Customer and WorldCom.
24. Other Agreements. Customer acknowledges and agrees that this Agreement
and the Switched Services described herein may not be combined with any
other switched services products or services offered by WorldCom, WorldCom's
parent company or WorldCom's affiliates. Additionally, Customer acknowledges
and agrees that:
(A) Current Services As of the Effective Date of this Agreement, (i) all
switched telecommunications services ("Current Services") offered by
WorldCom (formerly WilTel, Inc.), WorldCom's parent company, WorldCom, Inc.
(formerly LDDS Communications, Inc.) or any of WorldCom's affiliates,
including without limitation, IDB WorldCom Services, Inc. (hereinafter
referred to as the "WorldCom Group"), which are currently being provided
Customer (which for purposes of this Section 24 will include Customers
parent company, Customers subsidiaries and any other entities under common
control with Customer; hereinafter referred to as the "Customer Group")
pursuant to existing service agreements ("Existing Agreements") will be
canceled and no longer in force or effect except for charges or credits due
for Current Services rendered as of the Effective Date of this Agreement and
provisions intended to survive termination, such as limitation of liability,
indemnification and confidentiality, and (ii) all Current Services provided
a member of the Customer Group by a member of the WorldCom Group will be
provisioned under the terms and conditions of this TSA. Simultaneous with
the execution of this Agreement, if applicable, Customer shall cause all
members of the Customer Group to agree to the cancellation of such Existing
Agreements and the provision of Current Services under the terms and
conditions of this Agreement and Customer agrees to provide WorldCom with
reasonable documentation evidencing such agreement.
(B) Third Party Agreements If Customer acquires or merges or combines with
a third party after the Effective Date of this Agreement, and such third
party has existing agreement(s) with a member of the WorldCom Group
(collectively referred to as the "Third Party Agreements") for the provision
of switched telecommunications services ("Third Party Existing Services"),
then ninety (90) days following the date of such acquisition, merger or
combination (or such earlier date contained in a written notice from
Customer to WorldCom) (the "Transfer Date"), (i) the Third Party Agreements
will be canceled and no longer in force or effect except for commitments, if
any, contained in such Third Party Agreements and charges and credits due
for Services rendered prior to the Transfer Date, (ii) Third Party Existing
Services will be provisioned under this Agreement, and (iii) the aggregate
commitment(s) (e.g., revenue, volume, minute, etc.) remaining under such
Third Party Agreements, if any, shall be added on a pro rata basis to the
commitment(s), if any, existing under this Agreement. Simultaneous with the
closing of such acquisition, combination or merger, Customer will cause such
third party and all of its affiliates who are parties to such Third Party
Agreements, to agree to the cancellation of such Third Party Agreements and
the provision of Third Party Existing Services under the terms and
conditions of this Agreement and Customer agrees to provide WorldCom with
reasonable documentation evidencing such agreement. In the event any Third
Party Agreement(s) have a provision similar to the provision contained
herein, the parties agree to negotiate in good faith concerning which
agreement (i.e., this Agreement or any Third Party Agreement) shall survive
and which agreement(s) shall be terminated.
Example: Assume (i) Customer's Commitment is $500,000, (ii) there are
twenty-four (24) months remaining in the Service Term of this Agreement, and
(iii) Customer acquires a third party who has an existing switched
telecommunications services agreement with a member of the WorldCom Group
which contains a minimum monthly revenue commitment of $250,000 and has ten.
(10) months remaining in the term of such agreement. Customer's "new"
Commitment will be $604,166 for the remaining twenty-four (24) months in the
Service Term ($500,000 + [($250,000 x 10)/24]}.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement as of the dates set forth below which Agreement will be
effective as described in the PET attached hereto.
WORLDCOM NETWORK SERVICES, INC. GENX, LLC/DBA: PREFERRED DISCOUNT PLAN
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
(Signature) (Signature)
Xxxxx X. Xxxxxxx XXXX XXXXXX
(Print Name) (Print Name)
Director, Western Region PRESIDENT & CHIEF EXECUTIVE OFFICER
(Title) (Title)
8-10-98
(Date) (Date)
