EXHIBIT 2.4.2
OMNIBUS POST-CLOSING SERVICES AGREEMENT
THIS OMNIBUS POST-CLOSING SERVICES AGREEMENT is being made and entered
into as of the 17th day of July, 2002, among Intermedia Communications Inc., a
Delaware corporation ("Intermedia"), Shared Technologies Xxxxxxxxx, Inc., a
Delaware corporation and a wholly owned subsidiary of Intermedia ("STFI"),
Shared Technologies Xxxxxxxxx Telecom, Inc., a Delaware corporation and a
wholly owned subsidiary of STFI ("STFI Sub"), MCI WorldCom Communications,
Inc., a Delaware corporation ("WorldCom Sub"), WorldCom, Inc., a Georgia
corporation ("WorldCom") MCI WORLDCOM Network Services, Inc., a Delaware
corporation ("WNS", and collectively with Intermedia, STFI, STFI Sub, WorldCom
Sub and WorldCom, sometimes the "WorldCom Parties"), and Cypress
Communications, Inc., a Delaware corporation ("Purchaser"), under the following
circumstances:
RECITALS:
1. Intermedia, STFI, STFI Sub, WorldCom Sub, WorldCom (collectively, the
"Sellers"), and Purchaser are party to that certain Asset Purchase
Agreement, dated as of May 31, 2002, as amended by that certain
Amendment No. 1 to Asset Purchase Agreement and Waiver thereto, dated
as of July 17, 2002 (as so amended, the "Asset Purchase Agreement").
Certain capitalized terms used herein but not otherwise defined shall
have the meaning ascribed to such terms in the Asset Purchase
Agreement.
2. Pursuant to the Asset Purchase Agreement, Sellers are selling and
Purchaser is purchasing certain assets relating to the shared tenant
telecommunications services business operated by Sellers in various
locations in the United States utilizing in-building distribution
networks (the "Business").
3. To provide for an orderly transition upon and the successful operation
of both the Business and certain other businesses of Sellers following
the Closing, Sellers and/or certain of their affiliates agree to
provide certain services to Purchaser, and Purchaser and/or certain of
its affiliates agree to provide certain services to Sellers and their
affiliates, in each case upon the terms and subject to the conditions
set forth herein.
4. The parties acknowledge that (i) this Agreement is the "Omnibus
Agreement" referred to in the Asset Purchase Agreement and (ii) the
provision and receipt of all services described herein are integral to
one another and that this Agreement is intended, as a single unitary
agreement, to set forth and govern the terms and conditions upon which
the parties have agreed to provide or receive all such services, and
(iii) absent the provision and receipt of all services in accordance
with this Agreement, the parties would have not have agreed to the
provision or receipt of such services on the terms set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and intending to be legally bound, the parties
hereto agree as follows:
1. Provision of Certain Services.
a. Transition Services. Sellers and Purchaser, will provide
certain transitions services to one another, as more
specifically described in Schedule 1 to this Agreement.
b. Provision of WorldCom Wholesale Services. WorldCom Sub shall
provide to Purchaser and Purchaser shall purchase from
WorldCom Sub certain international, interstate, intrastate
and local telecommunications services and Internet services,
as more specifically described in Schedule 2 to this
Agreement.
c. Provision of United States Internet Colocation Services.
WorldCom Sub, on behalf of itself and certain affiliated
entities, shall provide to Purchaser and Purchaser shall
purchase from WorldCom Sub certain support, network
connectivity, physical access and/or additional services
relating to Internet service, as more specifically described
in Schedule 3 to this Agreement.
d. Provision of Network Colocation Services. WNS, on behalf of
itself and certain affiliated entities, shall provide to
Purchaser certain network collocation services, as more
specifically described in Schedule 4 to this Agreement.
e. Provision of Building Access Rights. Purchaser shall provide
to WNS certain rights of use and access relating to certain
specified buildings, as more specifically described in
Schedule 5 to this Agreement.
f. Provision of Building Access Rights. WNS shall provide to
Purchaser certain rights of use and access relating to
certain specified buildings, as more specifically described
in Schedule 6 to this Agreement.
g. Provision of Management Services. Purchasers shall provide to
Sellers certain Management Services, as more specifically
described in Schedule 7 to this Agreement.
2. Single Unitary Agreement. The parties hereto acknowledge and
agree that (i) this Agreement is the "Omnibus Agreement" referred to in the
Asset Purchase Agreement, (ii) this Agreement is intended to be a single
unitary agreement respecting the provision of those services identified in the
Schedules hereto following the Closing of the transactions contemplated by the
Asset Purchase Agreement, (iii) absent the provision and receipt of all
services in accordance with this Agreement, the parties would have not agreed
to the provision or receipt of such services on the terms set forth herein and
(iv) in the absence of the Omnibus Agreement, the
parties would not have consummated the transactions contemplated by the Asset
Purchase Agreement.
3. Headings. The subject headings of this Agreement are included
for purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
4. Entire Agreement. This Agreement, together with each of the
Schedules hereto, supersede all prior discussions and agreements between the
parties with respect to the subject matter hereof and thereof, and contain the
sole and entire agreement between the parties hereto with respect to the
subject matter hereof and thereof.
5. Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
6. Waiver. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof; but no such
waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
7. Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
8. No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other person other
than any person entitled to indemnity under Section 16 of this Agreement.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to conflicts of law principles of such State.
10. Dispute Settlement. If a claim or dispute between the parties
arises in connection with this Agreement, the parties will attempt in good
faith to resolve through negotiation such claim or dispute. If the parties
cannot mutually resolve such matter within 20 business days of the initial
notice of such dispute, the parties agree that such claim or dispute shall be
settled by arbitration in Washington, DC, in accordance with the then-current
rules of the alternative dispute resolutions firm JAMS or its successor, or if
no successor exists then in accordance with the then-current commercial
arbitration rules of the American Arbitration Association. The arbitrator(s)
shall be experienced in conducting arbitrations in the U.S. communications
industry, selected mutually by the WorldCom Parties, on the one hand, and
Purchaser, on the other hand. The cost of the arbitration, including the fees
and expenses of the arbitrator(s), shall be shared
equally by the parties unless the award provides otherwise. Judgment upon the
award rendered by the arbitrator(s) may be entered into any court of competent
jurisdiction, and shall be fully enforceable and only appealable in accordance
with the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. The parties
agree that, except as required by applicable law or regulation, the existence,
outcome, and contents of any arbitration proceeding shall be kept confidential
and that the arbitrator(s) shall be required to adhere to the same obligation
of confidentiality. The parties also acknowledge, however, that in the event
that any of the parties hereto becomes the debtor in a case under Chapter 11 of
Title 11, United States Code (respectively, a "Bankruptcy Case" and the
"Bankruptcy Code"), the provisions hereof regarding Dispute Resolution will or
may be subject to applicable provisions of the Bankruptcy Code and related
procedural rules, and the parties therefore agree, in the event of a Bankruptcy
Case by any of the parties hereto, to use their collective commercially
reasonable efforts to achieve the goal of resolving disputes in accordance with
the provisions hereof to the extent permitted by the Court having jurisdiction
of such a Bankruptcy Case, and that any failure to follow the dispute
resolution procedures herein, which results from such a Bankruptcy Case shall
not be a default hereunder.
11. Schedules. No Schedule to this Agreement incorporates or
includes any of the terms or conditions of any other Schedule to this Agreement
(except for such attachments, exhibits, and schedules that themselves are part
of the relevant Schedule to this Agreement).
12. Severability; Enforcement. Any term or provision of this
Agreement that is invalid or unenforceable in any jurisdiction will, as to that
jurisdiction, be ineffective to the extent of such invalidity of
unenforceability without rendering invalid or unenforceable to the remaining
terms and provisions of this Agreement or affecting the validity or
unenforceability of any terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provisions will be interpreted to be only so broad as is
enforceable.
13. Notices.
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent by
facsimile or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when received, as
follows:
if to Purchaser,
Cypress Communications, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention of Xxxxxxx X. XxXxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xx., XX
Xxxxx 0000
Xxxxxxx, XX 00000
Attention of Xxxxx X. Xxxxxxxx, Xx. or Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000 or 6961
Telephone: (000) 000-0000 or 3661
if to any Seller,
In care of WorldCom, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention of K. Xxxxxxx Xxxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
WorldCom, Inc.
0000 00xx Xx., X.X.
Xxxxxxxxxx, XX 00000
Attention of Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
INTERMEDIA COMMUNICATIONS, INC.,
By:
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Name:
Title:
SHARED TECHNOLOGIES XXXXXXXXX, INC.,
By:
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Name:
Title:
SHARED TECHNOLOGIES XXXXXXXXX TELECOM, INC.,
By:
----------------------------------------
Name:
Title:
MCI WORLDCOM COMMUNICATIONS, INC.
By:
----------------------------------------
Name:
Title:
MCI WORLDCOM NETWORK SERVICES, INC.
By:
----------------------------------------
Name:
Title:
WORLDCOM, INC.
By:
----------------------------------------
Name:
Title:
CYPRESS COMMUNICATIONS, INC.,
By:
----------------------------------------
Name:
Title:
SCHEDULE 2 TO THE OMNIBUS POST-CLOSING SERVICES AGREEMENT
WORLDCOM WHOLESALE SERVICE AGREEMENT
This WorldCom Wholesale Service Agreement, together with any attachments and
schedules made part hereof ("Agreement"), is by and between MCI WORLDCOM
COMMUNICATIONS, INC. ("WorldCom"), on behalf of itself and its affiliates and
successors and the above-referenced customer ("Customer"). WorldCom or its
providing affiliate will provide to Customer the Services as set forth herein.
This Agreement shall be effective as of the Effective Date, as that term is
defined in the Asset Purchase Agreement among WorldCom, Inc., Intermedia
Communications, Inc., MCI WorldCom Communications, Inc., Shared Technologies
Xxxxxxxxx, Inc., and Shared Technologies Xxxxxxxxx Telecom, Inc., on the one
hand, and Cypress Communications, Inc., on the other, dated as of May 31, 2002,
as amended by Amendment No. 1 to Asset Purchase Agreement and Waiver, dated
July 16, 2002, (collectively, the "Asset Purchase Agreement").
Throughout this Schedule 2 to the Omnibus Post-Closing Services Agreement, the
defined term "Agreement" shall be deemed to include only the terms and
conditions of this Schedule 2 to the Omnibus Post-Closing Services Agreement,
the terms and conditions of the main body of the Omnibus Post-Closing Services
Agreement, and the terms and conditions of Schedules 1 through 5 (including any
attachments, exhibits, or schedules thereto) to this Schedule 2 to the Omnibus
Post-Closing Services Agreement. For the avoidance of doubt, the defined term
"Agreement", as used in this Schedule 2 to the Omnibus Post-Closing Services
Agreement, shall not be deemed to include any of the terms or conditions set
forth in Schedules 1, 3, 4, 5, 6, or 7 (including any attachments, exhibits, or
schedules thereto) of the Omnibus Post-Closing Services Agreement.
TERMS AND CONDITIONS
1. SERVICES. WorldCom will provide to Customer the international,
interstate, intrastate and local telecommunications services and Internet
services ("Services") identified in SCHEDULES 1 THROUGH 5 of this Agreement,
which are attached hereto and incorporated herein by this reference. Customer
shall pay the applicable rates and receive the applicable discounts listed in
this Agreement, if any. For services that receive a discount off of the Guide
or Tariff rates, any change in the Guide or 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 or 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 or 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 Agreement, including, without limitation, installation and other
non-recurring charges, Customer shall pay WorldCom's standard Guide or Tariff
rates or charges for the applicable service.
2. TARIFF AND GUIDE. WorldCom's provision of Services to Customer will be
governed by WorldCom's international, interstate and state tariffs
("Tariff(s)") and WorldCom's "Service Publication and Price Guide" ("Guide"),
as applicable, each as supplemented by this Agreement. This Agreement
incorporates by reference the terms of each such applicable Tariff and the
Guide. The Tariff or the Guide may set forth additional installation charges
applicable to the Services. WorldCom's provision of enhanced, non-regulated
services under this Agreement will be governed by the terms and conditions in
this Agreement and, for the convenience of the parties, by the non-inconsistent
terms and conditions of service contained in the Guide. For purposes hereof,
"non-inconsistent" shall mean Guide terms and conditions, as they may be
modified from time to time, that are neither contained in the Agreement nor
vary in any respect from the terms and conditions expressly contained in the
Agreement. When any Tariff provisions are canceled, Services will continue to
be provided pursuant to this Agreement, as supplemented by the terms and
conditions contained in the Guide, which will contain WorldCom's standard
rates, product descriptions, terms and conditions that formerly had been
tariffed. The Guide is incorporated herein by reference and will be available
to Customer on WorldCom's internet website (xxx.xxxxxxxx.xxx) and at WorldCom's
offices during regular business hours at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000. The Company may modify the Guide from time to time, and any
modification made will become effective and binding on Customer beginning on
the first day of the next monthly billing cycle, provided that no change shall
become effective and binding on Customer until it has been posted in the Guide
for at least fifteen (15) calendar days. Tariffs may be modified from time to
time in accordance with law.
3. TERM. The "Initial Term" shall begin on the Effective Date and end
upon the completion of thirty-six (36) months. The Agreement will be
automatically extended on a month-to-month basis upon the expiration of the
Initial Term (the "Extended Term"), unless either party has delivered written
notice of its intent to terminate the Agreement at least thirty (30) days prior
to the end of the Initial Term. Either party may terminate this Agreement
during the Extended Term upon thirty (30) days prior written notice. "Term"
shall mean the Initial Term and the Extended Term.
4. MINIMUM ANNUAL VOLUME COMMITMENT ("AVC"). Customer agrees to pay
WorldCom no less than Sixteen Million, Five Hundred Thousand Dollars
($16,500,000.00) in Total Service Charges (as hereinafter defined) during the
first twelve (12) months of the Initial Term, and then agrees to pay WorldCom
no less than Thirteen Million, Five Hundred Thousand ($13,500,000.00) Dollars
during the second twelve month period, and then agrees to pay WorldCom no less
than Eleven Million ($11,000,000.00) Dollars during the third twelve month
period, each such twelve-month period referred to as a Contract Year. During
each monthly billing period of the Extended Term, Customer's Total Service
Charges must equal or exceed one-twelfth (1/12) of the third Contract Year's
AVC. "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
WorldCom or WorldCom affiliate acts as agent for Customer in its acquisition of
goods or services; (d) non-recurring charges; (e) "Governmental Charges" as
defined below; and (f) other charges expressly excluded by this Agreement.
5. UNDERUTILIZATION AND EARLY TERMINATION CHARGES.
5.1 Underutilization Charges. If, in any Contract Year during the
Initial 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" equal to the difference between the AVC and
Customer's Total Service Charges during such Contract Year. If, in any
monthly billing period during the first or second Contract Year,
Customer's Total Service Charges do not meet or exceed one million
dollars ($1,000,000), then Customer shall pay: (a) all accrued but
unpaid usage and other charges incurred under this Agreement for that
monthly billing period; and (b) an "Underutilization Charge" equal to
the difference between one million dollars ($1,000,000) and Customer's
Total Service Charges during such monthly billing period. If, in any
monthly billing period during the third Contract Year, Customer's
Total Service Charges do not meet or exceed
WORLDCOM CONFIDENTIAL
1
nine hundred and seventy six thousand dollars ($976,000), then
Customer shall pay: (a) all accrued but unpaid usage and other charges
incurred under this Agreement for that monthly billing period; and (b)
an "Underutilization Charge" equal to the difference between nine
hundred and seventy six thousand dollars ($976,000) and Customer's
Total Service Charges during such monthly billing period. If, in any
monthly billing period during the Extended Term, Customer's Total
Service Charges do not meet or exceed one-twelfth (1/12) of the AVC,
then Customer shall pay: (a) all accrued but unpaid usage and other
charges incurred under this Agreement; and (b) an "Underutilization
Charge" equal to the difference between one-twelfth (1/12) of the AVC
and Customer's Total Service Charges during such monthly billing
period.
5.2 Early Termination Charges. If: (a) Customer terminates this
Agreement during the Term for reasons other than Cause or Changes to
the Guide; or (b) WorldCom terminates this Agreement for Cause
pursuant to the Sections entitled "Termination for Cause" or
"Termination by WorldCom," 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 fifty percent (50%) of the AVC for each monthly billing
period remaining in the unexpired portion of the Initial Term on the
date of such termination.
6. RATES AND CHARGES. Customer agrees to pay the rates and charges set
forth in this Agreement, which are in lieu of any discounts or credits to which
Customer is or would otherwise be entitled to receive by application of the
Tariffs or the Guide. Except as otherwise set forth herein, for any services
purchased after the expiration of the Initial Term, Customer shall pay
WorldCom's standard rates as set forth in the Guide (or Tariffs, if applicable)
for those services.
7. GOVERNMENTAL CHARGES. WorldCom 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.
8. CHANGES TO THE GUIDE. If WorldCom makes any changes to the Guide
(other than changes to Governmental Charges) which affect Customer in a
material and adverse manner, Customer, as its sole remedy, may discontinue the
affected Service without liability by providing WorldCom with written notice of
discontinuance within sixty (60) days of such change. Customer shall pay all
charges incurred up to the time of Service discontinuance. WorldCom 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. A "material and adverse
change" shall not include, nor be interpreted to include, the introduction of a
new service or any new service feature associated with an existing service,
including all terms, conditions and prices relating thereto.
9. TAXES. All charges are exclusive of applicable taxes, tax-like
charges, and tax-related surcharges (as such terms are defined in the Guide),
which Customer agrees to pay. If Customer provides WorldCom with a duly
authorized exemption certificate, WorldCom will exempt Customer in accordance
with law, effective on the date WorldCom receives the exemption certificate.
Taxes based on WorldCom's net income will be WorldCom's sole responsibility. If
Customer does not give written notice to WorldCom of a dispute with respect to
the application of Taxes within 6 months of the date of the invoice, the
invoice will be deemed to be correct and binding on Customer for all purposes.
10. PAYMENT. Customer agrees to pay WorldCom for all Services within (30)
days of invoice date. All payments must be made in U.S. Dollars. Payments must
be made at the address designated on the invoice or other such place as
WorldCom 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 lessor 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. If Customer does not give WorldCom
written notice of a dispute with respect to WorldCom charges or application of
taxes within six (6) months of the date of an invoice, 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 in collecting, or attempting to collect, any charges owed hereunder.
11. TERMINATION FOR CAUSE. Either party may terminate this Agreement or a
Service for Cause. As to payment of invoices, "Cause" shall mean the Customer's
failure to pay any invoice within thirty (30) 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. In either case, termination for
Cause is permitted only if 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.
12. TERMINATION BY WORLDCOM. WorldCom may discontinue service and/or
terminate this Agreement immediately upon notice to Customer if: (a) Customer
provides false information to WorldCom regarding the Customer's identity,
creditworthiness, or its planned use of the Services; (b) interruption of
service is necessary to prevent or protect against fraud or otherwise protect
WorldCom's personnel, facilities or services; or (c) Customer interferes with
WorldCom's provision of services to any other customer.
13. SERVICE ORDERS. All service orders are subject to the terms and
conditions of this Agreement, including the Tariffs and the Guide. Except as
otherwise specifically set forth in this Agreement, any service orders
implemented prior to the Effective Date (if any) shall remain in full force and
effect at the rates set forth therein.
14. SALE OF SERVICES. If Customer elects to engage in resale of the
Services, then this section shall apply.
14.1 Customer agrees to sell and xxxx its own services under
Customer's own name, identity or xxxx, and Customer further agrees not
to reference WorldCom name or marks in any context involving
Customer's furnishing of services to the public. In addition to other
applicable remedies, WorldCom shall be entitled to seek injunctive
relief with respect to any violation of this section. Any opportunity
to cure a breach of this section shall be subject to WorldCom's
reasonable satisfaction as to the curability of the original injury
caused by such breach and the effectiveness of any attempted cure.
WorldCom's right to enforce this section as a material provision of
this Agreement shall not in any manner require a showing of financial,
legal or other loss or injury to WorldCom of any kind.
14.2 Customer shall have sole responsibility for interacting with
its customers in all matters pertaining to service, including the
placing and handling of service orders, service installation,
operation and termination, dispute handling and resolution, and
billing and collection matters. WorldCom shall incur no obligation,
nor shall it be deemed to have any obligation, to interact with
Customer's customers and end users ("End Users") for any reason or
purpose. Customer shall cooperate with WorldCom as necessary to
address and resolve service-related issues and problems and shall
impose upon its customers an obligation to cooperate with Customer in
addressing and resolving service-related issues and problems.
14.3 Customer understands and accepts that, as part of WorldCom's
normal business policy and practices and its obligations under law,
WorldCom will engage in extensive marketing efforts in an attempt to
sell its services to the public and that such efforts will result in
active competition with Customer for the business of users who are
Customer's End
WORLDCOM CONFIDENTIAL
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Users or prospects, provided WorldCom will not use Confidential
Information to actively compete with Customer. Under no circumstance
shall any inference be derived that WorldCom's entry into this
Agreement with Customer means that WorldCom will restrict its efforts
to compete against Customer in any way.
14.4 Customer understands and accepts that no fiduciary
relationship arises by virtue of this Agreement and that, accordingly,
WorldCom incurs none of the obligations that arise in such
relationship as an incident of its fulfilling its obligations under
this Agreement. Further, Customer understands and accepts that
WorldCom neither insures the profits for Customer nor guarantees the
success of Customer's business as a result of Customer's receipt of
the Service under this Agreement.
14.5 If Customer is a resale common carrier subject to the
Communications Act of 1934, as amended (the "Act"), then this
Agreement is entered into pursuant to Section 211 of the Act. Customer
agrees that it will obtain and maintain any and all approvals to
resell the Service hereunder from the FCC, including requirements
imposed by Section 214 of the Act and state regulatory bodies. In the
event Customer fails to obtain or maintain the appropriate approvals,
WorldCom shall not be liable for any suspension of service or other
delay or failure to provide the Service.
15. 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.
16. DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, WORLDCOM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY WORLDCOM
SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. WORLDCOM
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.
17. 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.
18. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF WORLDCOM 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 WORLDCOM 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 WORLDCOM'S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR
INTENTIONAL MISCONDUCT; OR (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY
WORLDCOM'S NEGLIGENCE; OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE
PERSONAL PROPERTY PROXIMATELY CAUSED BY WORLDCOM'S NEGLIGENCE.
19. 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 WorldCom may assign
this Agreement to an affiliate or successor without the Customer's written
consent.
20. SERVICE MARKS, TRADEMARKS AND NAME. Neither WorldCom 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.
21. GOVERNING LAW. 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.
22. Reserved.
23. RATE CHANGE NOTICE. WorldCom may, upon seven (7) days' prior written
notice to Customer, modify any rate or rates set forth in any of the attached
Schedules of this Agreement ("Rate Change Notice"). Customer may not terminate
this Agreement based on a Rate Change Notice unless the Rate Change Notice
results in an increase of more than three percent (3%) in Customer's overall
net usage charges from WorldCom based on the average of Customer's previous
three months invoiced charges ("Net Increase"). In the event of a Net Increase
to Customer, Customer will have thirty (30) days from the date of receipt of
Rate Change Notice to elect to terminate this Agreement without incurring
further liability to WorldCom (except for payment of all Services rendered) by
providing written notice to WorldCom. The written notice shall terminate the
Agreement no more than 15 days after provision of the notice.
24. ENTIRE AGREEMENT. This Agreement (and any attachments, schedules and
other documents incorporated herein by reference) constitutes the entire
agreement between the parties with respect to its subject matter and supersedes
all other representations, understandings or agreements that are not expressed
herein, whether oral or written. This agreement shall supercede the existing
Agreement between WorldCom and Cypress Communications, Inc., dated October 31,
1999, as amended ("Cypress Agreement"). Upon the effective date of this
Agreement, the Cypress Agreement shall be mutually terminated by WorldCom and
Cypress and Cypress shall not be liable for any early or other termination
charges provided for therein. Any existing circuits ordered under the Cypress
Agreement ("Migrated Circuits") shall be transferred over to this agreement
within thirty (30) days of the Effective Date and be re-rated in accordance
with the rates and terms as set forth in this Agreement. Installation charges
associated with these Migrated Circuits, if any, shall be waived. Each Migrated
Circuit shall have a minimum circuit term under this Agreement equal to the
greater of (a) one year from the Effective Date or (b) the balance of the term
for such circuit that would have applied had it remained under the Cypress
Agreement. Except as otherwise set forth herein, this Agreement does not
supercede, modify or affect any existing agreements or service arrangements
between WorldCom and Customer. Except as otherwise set forth herein, no
amendment to this Agreement shall be valid unless in writing and signed by both
parties.
WORLDCOM CONFIDENTIAL
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