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EXHIBIT 10.17.3
DELTA THREE NETWORK SERVICES AGREEMENT
DELTA THREE NETWORK SERVICES AGREEMENT (this "Agreement"), dated as of August
10, 1998, between DELTA THREE, INC., a Delaware corporation ("Delta"), and DELTA
THREE DIRECT, LLC, a New York limited liability company ("Newco").
W I T N E S S E T H:
WHEREAS, Delta is a telecommunications provider utilizing the
Internet and networks based on Internet Protocols to provide telecommunications
services;
WHEREAS, pursuant to an Operating Agreement dated as of the
date hereof (the "Operating Agreement"), between Delta and Xxxxxxx Entertainment
Inc., a Delaware corporation ("Xxxxxxx"), Delta and Xxxxxxx have formed Newco
for the purpose of marketing and selling certain telephony services (the "Newco
Business");
WHEREAS, in connection with the formation of Newco pursuant to
the LLC Agreement, Delta has agreed to provide the Internet Telephony Services
(as defined in Section 2.01 below), the Ancillary Services (as defined in
Section 2.02 below) and the Billing Services (as defined in Section 2.03 below)
to Newco.
NOW, THEREFORE, in consideration of the foregoing premises and
of the mutual covenants hereinafter contained, the parties hereto hereby agree
as follows:
ARTICLE I
TERM
Section 1.01. TERM. The term (the "Term") of this Agreement
shall commence on the date hereof and shall continue until the date on which
Delta withdraws as a member of Newco (other than in the event that Delta
transfers its interest in Newco to an Affiliate (as defined in the LLC
Agreement) of Delta), subject to earlier termination as provided in Article V;
provided that, unless this Agreement is terminated pursuant to Section 5.01 or
Section 5.02, Newco may elect to extend the Term on a month-to-month basis for
up to nine months from the date of Delta's withdrawal from Newco.
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ARTICLE II
SERVICES PROVIDED BY DELTA
Section 2.01. Internet Telephony Services.
(a) During the Term, Delta shall provide the Internet
Telephony Services to Newco for resale to its Customers (as defined below). For
the purposes hereof, the "Internet Telephony Services" shall mean the
telecommunications services and value added services which are provided, or may
be provided, by Delta by utilizing the Internet and networks based on Internet
Protocols. For the purposes hereof, the term "Customers" shall include all
residential and commercial users of the Services (as defined below) from whom
Newco obtains service orders. During the Term, Delta shall be the exclusive
provider of the Internet Telephony Services to Newco. During the Term, Delta
shall provide the Services to Newco on an equal basis in terms of quality and
timeliness as it provides services to RSL Communications, Ltd. and its
subsidiaries.
(b) The Internet Telephony Services shall be provided
by Delta to Newco at Delta's IP Telephony Direct Cost (as defined below) of
providing such services. For the purposes hereof, "IP Telephony Direct Cost"
shall mean Delta's direct cost for providing the Internet Telephony Services
without inclusion of overhead costs (including depreciation and amortization
expenses and any other expenses of building or maintaining the network, except
to the extent such maintenance is necessary for the purpose of providing the
Internet Telephony Services specifically to Newco) and after taking into account
discounted rates or service credits provided under Operating Agreements (as
defined below). For the purposes hereof, "Operating Agreement" shall mean an
operating agreement relating to the provision by Delta of transmission services
that provides for return traffic or service credits.
Section 2.02. Ancillary Services.
(a) During the Term, at the request of Newco, Delta
shall provide the Services to Newco for use in connection with the Newco
Business. For the purposes hereof, the "Ancillary Services" shall mean customer
service and provisioning, each as customarily provided in the telecommunications
industry.
(b) The Ancillary Services shall be provided by Delta
to Newco at Delta's Ancillary Service Direct Cost (as defined below) of
providing such services. For the purposes hereof, "Ancillary Service Direct
Cost" shall mean Delta's direct cost for providing the Ancillary Services
without inclusion of overhead costs (including depreciation and amortization
expenses).
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Section 2.03. Billing Services.
(a) During the Term, at the request of Newco, Delta
shall provide the Billing Services to Newco for use in connection with the Newco
Business. For the purposes hereof, the "Billing Services" shall mean the billing
services provided by Delta through the operation of its on-line billing systems
and interfaces, as the same shall exist from time to time. For the purposes
hereof, the "Services" shall mean the Internet Telephony Services, the Ancillary
Services and the Billing Services.
(b) The Billing Services shall be provided by Delta
to Newco at Delta's Billing Direct Cost (as defined below) of providing such
services. For the purposes hereof, the "Billing Direct Cost" shall mean Delta's
direct cost for providing the Billing Services without inclusion of overhead
costs (including depreciation and amortization expenses).
Section 2.04. Operating Procedures. The Services to be
provided by Delta in accordance with this Article II shall be provided to Newco
in accordance with procedures that are customary in the telecommunication
industry and currently in use by Delta.
ARTICLE III
COVENANTS
Section 3.01. Covenants of Newco.
(a) Newco shall be solely responsible to its
Customers for providing telecommunications and other services, including,
without limitation, contracting with its Customers for the provision of such
services and performing customer service functions for its Customers, including
responding to customer inquiries and complaints.
(b) Newco shall act in accordance with all applicable
federal, state, municipal or foreign salutes, rules, regulations, policies,
orders or ordinances (the "Governmental Rules) governing or relating to the
provision of services to the Customers, including, without limitation, any and
all Governmental Rules prohibiting "slamming."
(c) Newco shall secure and maintain such federal and
state regulatory authorizations, and maintain on file with federal and state
regulatory authorities such tariffs, as shall be necessary and appropriate for
the provision of the Internet Telephony Services to the Customers.
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Section 3.02. Covenants of Delta.
(a) Delta shall act in accordance with all
Governmental Rules governing or relating to the provision of the Services.
(b) Delta shall secure and maintain such federal and
state regulatory authorizations, and maintain on file with federal and state
regulatory authorities such tariffs, as shall be necessary and appropriate for
the provision of the Internet Telephony Services to the Customers.
ARTICLE IV
PAYMENTS
Section 4.01. Service Charges. As soon as practicable after
the end of each calendar month during the Term, Delta shall provide Newco with
an invoice detailing the amounts to be paid by Newco in connection with the
Services provided to Newco hereunder.
Section 4.02. Payments Due: Late Payment Charges. Amounts due
hereunder shall be paid within thirty (30) days of receipt of the invoice
therefor. Any undisputed amount due hereunder not paid within thirty (30) days
of receipt of the invoice therefor shall accrue interest from the date such
amount was due at the rate of five percent (5%) per annum, compounded daily.
Section 4.03. Disputed Payments. If a dispute arises in good
faith with respect to any amount due hereunder, Newco shall pay when due the
undisputed portion of such amount, if any, and, if the dispute is resolved in
Delta's favor, promptly pay the disputed portion (or applicable part thereof)
when the dispute is resolved without the applicable late payment charge
otherwise incurred in connection with Section 4.02.
Section 4.04. Currency. All invoices hereunder shall
be rendered, and all payments hereunder shall be made in U.S. Dollars.
ARTICLE V
TERMINATION
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Section 5.01. Termination for Cause.
(a) In the event that (i) either Newco or Delta
materially breaches any of its duties or obligations hereunder or (ii) Xxxxxxx
or Delta materially breaches any of its obligations under the LLC Agreement or
any agreement, certificate or other instrument or document delivered in
accordance therewith, which breach shall not be cured within ten (10) days after
written notice is given to the breaching party specifying the breach, then
either Newco or Delta, as the case may be, may, by giving notice thereof to the
other, terminate this Agreement as of a date specified in such notice of
termination, which date shall be no earlier than ten (10) days after the date of
such notice.
(b) Notwithstanding anything to the contrary
contained herein, either party may terminate this Agreement or discontinue the
provision of Services, effective immediately upon written notice to the other,
upon the occurrence of any of the following events:
(i) the violation by such other party of any
Governmental Rule with respect to the provision of the
Services and such violation is reasonably expected to cause a
material harm to the business of the party terminating the
Agreement; or
(ii) a government entity with appropriate
jurisdiction issues a final order that (a) the provision of
the Services or the relationship hereunder is contrary to law
or regulation or (b) such other party has engaged in
fraudulent, deceptive or illegal conduct.
Section 5.02. Termination for Bankruptcy. In the event of the
Bankruptcy (as hereinafter defined) of either Newco or Delta, then the
non-bankrupt party may, by written notice thereof to the party in Bankruptcy,
terminate this Agreement as of a date specified in such notice of termination,
which date shall be no earlier than ten (10) days after the date of such notice.
For the purposes of this Agreement, "Bankruptcy" shall mean the happening of any
of the following: (i) the filing of an application for, or a consent to, the
appointment of a trustee for all or substantially all of the relevant party's
assets, (ii) the filing of a voluntary petition in bankruptcy, or the filing of
a pleading in any court of record admitting in writing the relevant party's
inability to pay its debts generally as they come due, (iii) the making of a
general assignment for the benefit of creditors, (iv) the entry of an order,
judgment or decree by any court of competent jurisdiction adjudicating the
relevant party a bankrupt, or appointing a trustee of all or substantially all
of such party's assets unless such order, judgment or decree is vacated or
stayed on appeal within thirty (30) days or (v) the filing of an involuntary
case or other proceeding against the relevant party seeking liquidation,
reorganization or other relief under any bankruptcy, insolvency or other similar
law, which case or proceeding shall not have been dismissed within sixty days
after filing.
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Section 5.03. Effect of Termination. In the event of
the termination of this Agreement, all rights and obligations of Newco and Delta
shall terminate as of the effective date of such termination, except that (i)
such termination shall not constitute a waiver of any, rights that either Newco
or Delta may have by reason of a breach of this Agreement, including any right
to indemnification pursuant to Article VIII, (ii) such termination shall not
constitute a waiver of any right to receive payments that are due and pursuant
to Article IV and (iii) the provisions of Article VII shall continue in full
force and effect. Neither party shall, by reason of termination or examination
of this Agreement, be liable to the other for cooperation, reimbursement or
damage of any kind on account of loss of profits on anticipated sales or on
account of expenditures, investments or commitments made by such party in
connection with the business or goodwill of such party.
ARTICLE VI
LIMITED WARRANTY
Section 6.01. Disclaimer of General Warranty by Delta. DELTA
MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE SERVICES
PROVIDED HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY OR OTHERWISE.
Section 6.02. Force Majeure. Delta shall not be liable for any
interruption of Services when such interruption results from causes beyond its
reasonable control, including, but not limited to, any strikes, lock-outs or
other labor difficulties, acts of any government, riot, insurrection or other
hostilities, embargo, fuel or energy shortage, fire, flood, acts of God, wrecks
or transportation delays or inability to obtain necessary utilities. In any such
event, Delta's obligations to provide Services shall be postponed for such time
as its performance is suspended or delayed on account thereof; provided that,
during such time that Delta's provision of Services are suspended and/or
delayed, and only during such time, Newco shall be entitled to obtain such
Services from another provider of such Services. Delta will promptly notify
Newco, either orally or in writing, upon learning of the occurrence of such
event of force majeure. Upon the cessation of the force majeure event, Delta
"will use its commercially reasonable efforts to resume its provision of
Services with the least possible delay and, upon the resumption of such
Services, Newco shall promptly resume the exclusive utilization of Delta's
Services.
ARTICLE VII
CONFIDENTIALITY
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Section 7.01. Confidentiality.
(a) In connection with the Services provided
hereunder, each party may disclose to the other party confidential and
proprietary technical, commercial and other information concerning the business
and affairs of such party (the "Information"). The parties agrees that for the
longest period permitted by law it shall hold in strictest confidence and take
all reasonable care to insure that such Information shall not be disclosed to
any third party, including imposing reasonable confidentiality requirements with
respect to such Information on its Affiliates (as defined in the LLC Agreement)
and its or its Affiliates' respective employees, agents, counsel, accountants
and other representatives, except insofar as (i) such disclosure may be
specifically authorized in writing from time to time by the disclosing party,
(ii) such Information is necessarily disclosed by its commercial use in the
operation of the business of the receiving party, (iii) the receiving party of
such Information can demonstrate that such Information was previously made
public or disclosed by the disclosing party without restriction to a third party
or is in the public domain otherwise than as a consequence of a breach of the
receiving party's obligations hereunder, (iv) such Information is known by the
receiving party without proprietary restrictions at the time of receipt of such
Information or (v) such disclosure is required pursuant to compulsory legal
process, including subpoena, civil investigative demands, oral questions or
interrogatories; provided that, in such event, the receiving party of such
Information shall promptly provide written notice of such legal process to the
disclosing party so that such disclosing party may oppose such disclosures or
seek a protective order or other confidential treatment of such Information.
(b) The parties recognize that the absence of a time
limitation in this Section 7.01 is reasonable and properly required for the
protection of the parties and in the event that the absence of such limitation
is deemed to be unreasonable by a court of competent jurisdiction, each party
agrees and submits to the imposition of such a limitation as said court shall
deem reasonable.
Section 7.02. Equitable Remedies. Each party specifically
recognizes that any breach of Section 7.01 will cause irreparable injury to the
other party and that actual damages may be difficult to ascertain, and in any
event, may be inadequate. Accordingly (and without limiting the availability of
legal or equitable, including injunctive, remedies under any other provisions of
this Agreement), each party agrees that in the event of any such breach, the
other party shall be entitled to injunctive relief in addition to such other
legal and equitable remedies that may be available. In addition, the parties
agree that the provisions of Section 7.01 shall be considered separate and apart
from the remaining provisions of this Agreement and shall be enforced as such.
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ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnification by Newco. Newco agrees to
indemnify and hold harmless Delta from and against, and to reimburse Delta with
respect to, any and all loss, damage, liability, cost and expense, including,
without limitation, reasonable attorneys' fees and expenses (as and when
incurred) incurred by Delta, or any Affiliate of Delta, by reason of or arising
out of or in connection with the breach of any of the representations,
warranties, covenants, agreements or undertakings made by Newco hereunder.
Section 8.02 Indemnification by Delta. Delta agrees to
indemnify and hold harmless Newco from and against, and to reimburse Newco with
respect to, any and all loss, damage, liability, cost and expense, including,
without limitation, reasonable attorneys' fees and expenses (as and when
incurred) incurred by Newco, or any Affiliate of Newco, by reason of or arising
out of or in connection with the breach of any of the representations,
warranties, covenants, agreements or undertakings made by Delta hereunder;
provided that, in no event shall Delta be liable for any special, indirect, or
consequential damages whatsoever which in any way arise out of, relate to or are
a consequence of its failure to provide the Services hereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Independent Contractor. This Agreement does not
constitute Newco as an agent, legal representative, joint venturer, partner or
as an employee of Delta for any purpose. This Agreement does not authorize Newco
to make any contract, agreement, warranty, statement or representation or take
any other action which could establish any apparent relationship or agency,
joint venture, partnership or employment with Delta. Delta shall not be bound in
any manner by any such contract, agreements, warranty, statement or
representation made by Newco to any other person or with respect to any other
action by Newco. As a result solely of this Agreement, Delta shall not have
control over Newco's employees, including the terms and conditions of their
employment, or over Newco's methods of doing business except as set forth
herein.
Section 9.02. Further Assurances. Each party will, at any time
and from time to time after the date hereof, upon the request of the other, do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, all such other instruments as may be reasonably required in
connection with the performance of this Agreement and each shall take all such
further actions as may be reasonably required to carry out or further effect the
transactions contemplated by this Agreement. Upon request, Delta and Newco will
cooperate, and will use their respective best efforts to have
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their respective officers, directors and other employees cooperate, at the
requesting parties' expense, during and after the Term in furnishing
information, evidence, testimony and other assistance in connection with any
actions, proceedings, arrangements or disputes involving Delta and/or Newco.
Section 9.03. Survival of Representations. All statements,
certifications, indemnifications, representations and warranties made by the
parties to this Agreement in this Agreement or in any certificate or list
delivered pursuant hereto, and their respective obligations to be performed
pursuant to the terms hereof and thereof, shall survive the Term notwithstanding
(a) any examination or audit by or on behalf of any party hereto and (b) any
notice of a breach or of a failure to perform not waived in writing.
Section 9.04. Notices. All notices or other communications
required or permitted hereunder shall be in writing and shall be deemed given or
delivered (i) when delivered personally or by private courier, (ii) when
actually delivered by registered or certified United States mail, return receipt
requested and postage prepaid or (iii) when sent by facsimile (provided that it
is confirmed in writing sent by either of the methods set forth in clauses (i)
or (ii) on the day that such facsimile is sent), addressed as follows:
If to Delta:
c/o Delta Three Israel Ltd.
Jerusalem Technology Park
Xxxxx Xxxxxxxx 0, 0xx Xxxxx
Xxxxxxxxx 00000
Xxxxxx
Fax No.: 000-0-000-0000
Attention: Xxxx Xxxxxxx
with a copy to:
RSL Communications, N. America, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
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If to Newco:
Delta Three Direct, LLC
Xxx Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
Attention: Xxxx Xxxxxxx
with a copy to:
Delta Three, Inc.
c/o Delta Three Israel Ltd.
Jerusalem Technology Park
Xxxxx Xxxxxxxx 0, 0xx Xxxxx
Xxxxxxxxx 00000
Xxxxxx
Fax No.: 000-0-0000-0000
Attention: Xxxx Xxxxxxx
with a copy to:
RSL Communications, N. America, Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
with a copy to:
Xxxxxxx Entertainment, Inc.
Xxx Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
Attention: President
with a copy to:
Feder, Kaszovitz, Isaacson, Weber, Xxxxx & Bass LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: 000-000-0000
Attention: Xxxxxx Xxxxx, Esq.
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or to such other address as such party may indicate by a notice delivered to the
other party hereto pursuant to the terms hereof.
Section 9.05. No Modification Except in Writing. This
Agreement shall not be changed, modified, or amended except by a writing signed
by the party to be charged and no obligation of any party under this Agreement
may be discharged except by performance in accordance with the terms hereof or
by a writing signed by the other party.
Section 9.06. Entire Agreement. This Agreement and all other
documents to be delivered in connection herewith set forth the entire agreement
and understanding, between the parties as to the subject matter hereof and
merges and supersedes all prior discussions, agreements and understandings of
every kind and nature between them.
Section 9.07. Severability. If any provision of this Agreement
or the application of any provision hereof to any person or circumstances is
held invalid, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected unless the
provision held invalid shall substantially impair the benefits of the remaining
portions of this Agreement.
Section 9.08. Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party.
Section 9.09. Public Announcements. Neither party hereto shall
issue or make any advertisement press release or public announcement with
respect to this Agreement and the transactions contemplated herein, without the
prior written consent of the other party hereto, except to the extent required
by Governmental Rules (including U.S. securities rules and regulations and the
rules and regulations of any stock exchange on which the capital stock of any
party hereto or its Affiliate is traded). The parties hereto agree, to the
extent practical, to consult with each other regarding any public announcement
required by Governmental Rules in advance of such public announcement.
Section 9.10. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, without
giving effect to the conflict of laws principles thereof. For purposes of this
Agreement, each party hereby irrevocably submits to the nonexclusive
jurisdiction of the courts of the State of New York, sitting in New York County,
and the courts of the United States for the Southern District of New York. Each
party irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any such court, any claim that any such suit,
action or
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proceeding brought in such a court has been brought in an inconvenient forum and
the right to object, with respect to any such suit, action or proceeding brought
in any such court, that such court does not have jurisdiction over such party.
In any such suit, action or proceeding, each party waives, to the fullest extent
it may effectively do so, personal service of any summons, complaint or other
process and agrees that the service thereof may be made by certified or
registered mail, addressed to such party at its address set forth in Section
9.04. Each party agrees that a final non-appealable judgment in any such suit,
action or proceeding brought in such a court shall be conclusive and binding.
Section 9.11. Third Party Beneficiaries. Nothing in this
Agreement, express or implied, shall create or confer upon any person or entity,
other than the parties to this Agreement or their respective successors and
permitted assigns, any rights, remedies, obligations or liabilities.
Section 9.12. Captions. The captions appearing in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit or describe the scope and intent of this Agreement or any
of the provisions hereof.
Section 9.13. Interpretation. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular,
or plural as the identify of the person or persons referred to may require.
Section 9.14. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
DELTA THREE, INC.
By /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
DELTA THREE DIRECT, LLC
By /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: President
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