WHOLESALE SERVICE AGREEMENT
By and Between
FRONTIER COMMUNICATIONS OF THE WEST, INC.
And
AXCES, INC.
TABLE OF CONTENTS
SECTION
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1. Services; Purchaser Representations
2. Term of the Agreement
3. Billing and Payment
4. Billing Disputes
5. Termination Rights
6. Limitation of Action
7. Taxes and Assessments
8. Amendment
9. Warranties and Limitation of Liability
10. Indemnification
11. Representation
12. Force Majeure
13. Waivers
14. Assignment
15. Confidentiality
16. Integration
17. Construction
18. Governing Law
19. Notices
20. Counterparts
21. Compliance with Laws
22. Third Parties
23. Survival of Provisions
24. Unenforceable Provisions
EXHIBITS
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Exhibit A General and Service Definitions
Exhibit B Ancillary Fee Schedule
Exhibit C Call Detail Records; Order Processing Procedures; Letter of
Agency Requirements
Exhibit D Tax Exemption Form
Exhibit E National Origination Service (1+)
Exhibit F National Origination Service (800 Switched & Dedicated)
Exhibit G National Origination Service (Dedicated)
Exhibit H National Origination Service - (Switched International)
Exhibit H(a) National Origination Service - (Dedicated International)
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WHOLESALE SERVICE AGREEMENT
This Wholesale Service Agreement ("AGREEMENT") is entered into between the
provider of service, Frontier Communications of the West, Inc. on behalf
of itself and its affiliates ("FRONTIER"), A California corporation located
at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, XX 00000 and Axces, Inc.
("PURCHASER"), a Delaware corporation with its principal place of business
located at 0000 Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (hereinafter,
Frontier and Purchaser may be referred to in the aggregate as "PARTIES", and
each singularly as a "PARTY".)
PURPOSE
The Parties are telecommunications carriers subject to the Communications Act
of 1934, as amended. Purchaser desires to purchase network transport and
other telecommunication services from Frontier for Purchaser's resale to
business and residential customers on a common carrier basis. The Parties
agree as follows:
1. SERVICES; PURCHASER REPRESENTATIONS:
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(a) Frontier shall, in accordance with the rates, terms and conditions
set forth herein, provide services to Purchaser, as those services
are defined herein or identified on exhibits, schedules or other
attachments appended hereto and made a part of this Agreement from
time-to-time in accordance with the terms hereof (collectively,
"SERVICES").
(b) Purchaser agrees to provide Frontier with at least 30 days prior
written notice of Service requirements that may exceed anticipated
or normal course of Service requirements utilized by Purchaser.
Provision of Services is contingent on availability of facilities
and resources of Frontier.
(c) Purchaser shall provide Frontier with a forecast covering a good
faith estimate based on historical information (if available) of
the monthly traffic volume and geographic distribution for the
ordered Services. The estimate will be for the 3 calendar month
period following the desired activation date. The forecast is to be
in the format supplied or approved by Frontier. Frontier reserves
the right to request updated forecasts. Forecasts do not constitute
a binding commitment on the part of Purchaser.
(d) Orders for Services will be transmitted and processed in
accordance with the procedures set out in Exhibit C attached hereto
and made a part hereof as the same may be modified from time to
time by Frontier.
(e) Any Carrier Identification Code ("CIC") arrangement between the
Parties will be set out in writing as an attachment to this
Agreement. Purchaser is responsible for obtaining its own CIC.
(f) Purchaser is solely responsible for all billing, collection and
customer service activities for End-Users, except as may otherwise
be provided herein. Purchaser acknowledges and affirms that
Purchaser's financial obligations to Frontier regarding Services
provided must be satisfied in full, as hereinafter provided,
whether or not Purchaser has billed or collected from End-Users.
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(g) Purchaser represents and warrants that prior to obtaining the
Services in any jurisdiction it will be qualified to do business in
such jurisdiction and will maintain good standing in such
jurisdiction during the term of this Agreement. Purchaser further
represents and warrants that prior to obtaining the Services in any
jurisdiction it will be certified by the proper regulatory agencies
to provide the Services purchased hereunder to End-Users in such
jurisdiction.
(h) Purchaser represents and warrants that it will not resell the
Services to other telecommunications carriers, resellers or
aggregators.
2. TERM OF THE AGREEMENT:
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(a) INITIAL TERM: This Agreement is effective and the Parties'
obligations commence upon the date of execution by Frontier
("EFFECTIVE DATE") and continues in effect for a period of 4 years
("INITIAL TERM") from either the day Service is first utilized by
Purchaser on Frontier's network (as determined by Frontier's
records), or the 120th day after the Effective Date, whichever date
occurs first.
(b) AUTOMATIC RENEWAL: This Agreement renews automatically for a 1 year
period at the expiration of the Initial Term, unless canceled in
accordance with the terms hereof ("SUBSEQUENT TERM"). Each
Subsequent Term renews automatically for a 1 year period upon its
expiration, unless canceled in accordance with the terms hereof.
(c) CANCELLATION: If either Party desires to terminate this Agreement
upon expiration of any term, such Party shall give the other Party
written notice of its intent to cancel at least 90 days prior to
expiration of the then current term.
3. BILLING AND PAYMENT:
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(a) The initial pre-payment shall be $10,000. With Frontier's prior
consent, Purchaser may submit some other form of security or
assurance of payment satisfactory to Frontier in lieu of a cash
payment for the initial pre-payment.
(b) Frontier invoices Purchaser via facsimile on or about the fifth
Business Day after the close of each Billing Cycle for the Services
and for any other sums due Frontier ("INVOICE"). Each invoice
details: (i) the amount due Frontier, or the credit due Purchaser,
after a reconciliation between the actual charges for the Services
for the prior Billing Cycle and any pre-payment for the prior
Billing Cycle, and (ii) any other sums due Frontier. In addition
to the amounts under (i) and (ii) above, the Invoice will provide
for a pre-payment equal to 100% of the actual charges for the
Services for the prior Billing Cycle (exclusive of any
non-recurring charges). If Purchaser has submitted a letter of
credit that has an expiration date greater than 45 days after the
Invoice date, or a cash deposit or other assurance of payment, the
pre-payment will be reduced by the amount of the security (but to
not less than zero).
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(c) Each invoice shall be paid by Purchaser via wire transfer of
immediately available U.S. funds to an account designated by
Frontier so that the payment is received by Frontier no later than
seven (7) calendar days form the date of the invoice (the "DUE
DATE"). Frontier agrees that (i) the Invoice date will be the same
day the invoice is faxed to Purchaser, and (ii) the Invoice will be
faxed on a Business Day. Any Invoice not paid by the Due Date shall
bear late payment fees at the rate of 1-1/2% per month (or such
lower amount as maybe required by law) until paid.
(d) The Purchaser facsimile number and contact for purposes of this
Section 3. is 213/781-9396. Attention: Xxxxxxx Avignon. Purchaser
may change the facsimile number and contact upon written notice to
Frontier.
(e) If Purchaser is delinquent in payment of an Invoice or Frontier
does not have security from Purchaser equal to Purchaser's prior
month usage charger, Frontier may demand and receive additional
security from Purchaser.
(f) FRAUDULENT USAGE:
Frontier is not responsible for, and Purchaser shall defend and
indemnify Frontier against, any fraudulent use of Service. Any
claims of fraud shall not constitute valid justification for
dispute of an Invoice, Purchaser is solely responsible for all
Services usage, allegedly fraudulent or otherwise, and for all
additional charges as may be associated with such usage. Frontier
will monitor End-User call activity for fraudulent use using the
same procedures Frontier uses for its own customers, except
Frontier will contact Purchaser, but will not directly contact and
End-User, with respect to suspected fraudulent use.
(g) Purchaser agrees to pay to Frontier any and all local exchange
carrier-assessed and governmentally imposed charges levied upon
Frontier as a result of Services provided to Purchaser, including
but not limited to:
(i) primary interexchange carrier ("PIC") change charges. Because
of the cost to Frontier associated with administering PIC
retractions, Frontier may at any time asses the administrative
fee(s) set out in Exhibit B for PIC change reversals;
(ii) assessments by the National Exchange Carrier's Association,
Inc. (NECA) including but not limited to, the Universal Service
Fund/Lifeline Assistance (USF/LA), the Telecommunications Relay
Service (TRS) Fund, and other assessments as may be assessed by
NECA in the future relative to the Services;
(iii) assessments by regulatory agencies, including but not limited
to, the Federal Communications Commission (FCC) and state
Public Utility/Service Commissions;
(iv) National Administrative Services Center assessments (including
any monthly recurring charges) for "800"/"888" service
installation;
(v) charges set out in the Schedule of Ancillary Fees attached
hereto as Exhibit B and made a part hereof.
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(h) Commencing with Purchaser's sixth invoice, Purchaser is liable for
a monthly minimum usage charge for the Services of $50,000; at the
twelfth (12th) month Invoice the monthly minimum usage charge will
be $75,000; at the eighteenth (18th) month Invoice the monthly
minimum usage charge will be $150,000; and, at the twenty-fourth
(24th) month Invoice and forward the monthly minimum usage charge
will be $250,000 (the "MINIMUM CHARGE"). If Purchaser's net charges
(after any discounts or credits) for the Services are less than the
Minimum Charge in any month, Purchaser shall pay the shortfall (the
"MONTHLY SURCHARGE"). If this Agreement is terminated prior to the
time the Minimum Charge becomes effective (other than termination
by Purchaser for an uncured breach by Frontier), Purchaser shall pay
an amount equal to the difference between: (i) the actual charges
to Purchaser for usage of the Services for the period up to the
date of termination, and (ii) the amount of charges for such usage
calculated at the applicable Frontier rates in effect at the time
the Services were provided (the "DISCOUNT MAKE-UP CHARGE").
(i) Frontier may revise the rates and monthly recurring and other
charges in this Agreement (and any exhibit, attachment or schedule)
at any time upon written notice to Purchaser. If the effective rates
for the Services are increased pursuant to this paragraph, then
Purchaser may upon 90 days written notice cancel the Service
subject to the rate increase (Purchaser understands that it may not
be able to separately cancel domestic and international Service if
only one is subject to a rate increase). In order to be effective,
Purchaser's notice of cancellation must be received by Frontier
within 30 days after Purchaser's receipt of Frontier's notice of
the rate increase. Cancellation of a Service under this paragraph
includes cancellation of any monthly minimum usage charge
associated with the canceled Service that accrues after the date of
cancellation as well as a pro-rata reduction in the Minimum Charge
to adjust for the Service being canceled. If the cancellation
notice is not received by Frontier within 90 day period, Purchaser
will have irrevocably waived its right to cancel the affected
Service for that particular rate increase. If Purchaser does not
timely provide notice of cancellation, or if any Purchaser traffic
for a canceled Service remains on Frontier's network after the
effective date of cancellation, Purchaser shall pay the increased
rates for the affected Service and such traffic.
(j) Purchaser agrees that any make up to minimum charges, shortfall
charges and surcharges for which it is liable under this Agreement
are based on agreed upon minimum commitments on its part and
corresponding rate concessions of Frontier's part, and are not
penalties or unrecoverable damages under Section 9.(d). Frontier
may charge Purchaser, and Purchaser agrees to pay, reasonable
attorneys' fees and all costs incurred by Frontier in the
collection of any unpaid amounts due form Purchaser, whether or not
suit is instituted.
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4. BILLING DISPUTES:
The parties agree that time is of essence for payment of all Invoices.
Purchaser has the affirmative obligation of providing written notice and
supporting documentation for any good-faith dispute with an Invoice
("DISPUTE") within 60 Business Days after Purchaser's receipt. If
Purchaser does not report a Dispute within the 60 Business Day period,
Purchaser shall have irrevocably waived its dispute rights for that
Invoice. Purchaser shall pay disputed amounts, subject to resolution of
the Dispute. Frontier will use reasonable efforts to resolve timely
Disputes within 30 Business Days after its receipt of the Dispute
notice. If a Dispute is not resolved within the 30 Business Day period,
then at Purchaser's request the Dispute will be referred to an executive
officer of Frontier. If the Dispute is not resolved within 10 Business
Days after the referral, then either Party may commence an action in
accordance with Section 18, provided that the prevailing Party in such
action shall be entitled to payment of its reasonable attorney fees and
costs by the other Party. The Parties agree to exercise all reasonable
efforts to resolve Disputes within the time frames established herein.
5. TERMINATION RIGHTS:
(a) REGULATORY CHANGES: If the FCC, a state PUC or a court of competent
jurisdiction issues a rule, regulation, law or order which has the
effect of cancelling, changing, or superseding any material term or
provision of this Agreement (collectively, "REGULATORY
REQUIREMENT"), then this Agreement shall be deemed modified in such a
way as the Parties mutually agree is consistent with the form,
intent and purpose of this Agreement and is necessary to comply
with such Regulatory Requirement. Should the Parties not be able to
agree on modifications necessary to comply with a Regulatory
Requirement that materially affects the rights of either Party
within 30 days after the Regulatory Requirement is effective, then
upon written notice either Party may, to the extent practicable,
terminate that portion of this Agreement impacted by the Regulatory
Requirement.
(b) Without affecting any amounts due if, Frontier may terminate this
Agreement upon (i) Purchaser's insolvency, dissolution or cessation
of business operations, or (ii) Purchaser's failure to pay any
delinquent Invoice, or to maintain any other assurance of payment
provided to Frontier by Purchaser, within 2 Business Days following
Purchaser's receipt of written notice from Frontier.
(c) In the event of a breach of any material term or condition of this
Agreement by a Party (other than a payment breach covered under (b)
above), the other Party may terminate this Agreement upon 30 days
written notice, unless the breaching Party cures the breach during
the 30 day period. A breach that cannot be reasonably cured within
a 30 day period may be addressed by a written waiver of this section
signed by the Parties.
(d) Upon any breach by Purchaser not cured after expiration of all
applicable notice, grace and cure periods, Frontier may at its sole
option do any or all of the following:
(i) cease accepting or processing orders for Service and suspend
Service;
(ii) cease all electronically and manually generated information
and reports (including any CDR not paid for by Purchaser);
(iii) draw on any letter of credit, security deposit or other
assurance of payment provided by Purchaser;
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(iv) enforce any security interest granted by Purchaser to
Frontier hereunder;
(v) terminate this Agreement and the Services without liability
to Frontier;
(vi) contact the End-Users directly to inform them that their
telecommunications service will no longer be provided
through the Purchaser, but may be continued through Frontier
directly;
(vii) xxxx and collect from the End-Users directly (or through its
billing agents) for services;
(viii) treat the End-Users as Frontier customers for all purposes;
(ix) collect from Purchaser for future Services that would have
been provided, but for Purchaser's breach, including but not
limited to monthly minimums not to exceed an overall
contract value of $6,000,000 during the Initial Term; and
(x) pursue such other legal or equitable remedy or relief as
may be appropriate.
(e) Exercise by Frontier of its remedies under items (v) through
(viii) above is referred to as the "END-USER PURCHASE" and is
limited to Presubscribed End-Users. As consideration for the
End-User Purchase, Frontier agrees to pay Purchaser the amount of
the net charges (tariffed charges, less governmental assessments
and discounts) billed by Frontier directly to acquired End-Users
for actual usage of Frontier services in the first full billing
cycle in which Frontier invoices such End-Users (the "TRANSFER
PRICE").
(f) The Transfer Price may be setoff by Frontier against any
outstanding amounts due Frontier from Purchaser. Frontier shall pay
any balance of the Transfer Price remaining after setoff to
Purchaser within 30 days after the close of the aforesaid Frontier
billing cycle. If the total of outstanding amounts due Frontier
exceeds the Transfer Price, Purchaser continues to be liable to
Frontier for the excess. As a condition for Purchaser's receipt or
credit of the Transfer Price, Purchaser agrees to fully cooperate
with Frontier in implementation of the transfer of the End-Users to
direct Frontier customers. Such cooperation includes without
limitation:
(i) joint correspondence to the End-Users explaining the
mechanics and impact of the transfer;
(ii) Purchaser promptly providing Frontier with all End-User
information in its possession reasonably required by
Frontier to administer End-User accounts; and
(iii) Purchaser promptly providing Frontier with all LOAs for such
End-Users and a written assignment of all Purchaser's rights
to such LOAs.
(g) Upon termination of this Agreement and in addition to its right to
convert End-Users to Frontier customers, Frontier may continue
providing services to Presubscribed End-Users in accordance with
the rates and terms Frontier and an End-User may agree upon and to
treat such continuing End-Users as Frontier customers for all
purposes.
6. LIMITATION OF ACTION:
Purchaser shall not seek legal or equitable remedies, including
without limitation, injunctive relief, that would require Frontier
to continue providing Service to Purchaser
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or to End-Users through Purchaser while any delinquent amounts due
Frontier remain unpaid.
7. TAXES AND ASSESSMENTS:
Purchaser is responsible for the collection and remittance of all
governmental assessments, surcharges and fees pertaining to its
resale of the Services (other than taxes on Frontier's net income)
(collectively, "TAXES"). Purchaser shall provide Frontier with valid
and properly executed certificate(s) of exemption for the Taxes, as
applicable.
8. AMENDMENT:
Except as may be otherwise provided herein, this Agreement may not
be amended or modified, in whole or in part, except by the Parties
in writing.
9. WARRANTIES AND LIMITATION OF LIABILITY:
(a) Service will be provided by Frontier in accordance with the
applicable technical standards established for call transport by
the telecommunications industry. Frontier shall provide Service in
a quality and diligent manner consistent with service Frontier
provides to its other customers. FRONTIER MAKES NO OTHER WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO TRANSMISSION, EQUIPMENT OR
SERVICE PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION.
(b) It is the express intent of the Parties that Purchaser be solely
responsible for all claims of End-Users relating to the Services.
Consequently, Purchaser agrees that it is solely responsible for
any credits or adjustments that may be issued or required to be
issued to End-Users.
(c) Purchaser's sole and exclusive remedy in the case of a breach of
the Agreement by Frontier shall be a refund of the purchase price
paid for those Services not provided in accordance with the terms
of this Agreement.
(d) In no event shall either Party be liable to the other Party for
incidental and consequential damages, loss of goodwill,
anticipated profit, or other claims for indirect damages in any
manner related to this Agreement or the Services.
10. INDEMNIFICATION:
Purchaser shall defend and indemnify Frontier and its directors,
officers, employees, representatives and agents from any and all claims
(including any claims of End-Users and regulatory agencies), Taxes,
penalties, interest, expenses, damages, lawsuits or other liabilities
(including without limitation, reasonable attorney fees and court costs)
relating to or arising out of (i) the operation of Purchaser's business;
and (ii) Purchaser's breach of this Agreement.
11. REPRESENTATION:
The Parties acknowledge and agree that the relationship between them
is solely that of independent contractors, and nothing in this Agreement
is to be construed to constitute the Parties as employer/employee,
partners, franchise/franchisee, or otherwise as participants in a joint
or common undertaking. Neither Party, nor their respective employees,
agents or representatives, has any right, power or authority to act or
create any obligation, express or implied, on behalf of the other Party.
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12. FORCE MAJEURE:
Other than with respect to failure to make payments due hereunder,
neither Party shall be liable under this Agreement for delays, failures
to perform, damages, losses or destruction, or malfunction of any
equipment, or any consequence thereof, caused or occasioned by, or due
to fire, earthquake, flood, water, the elements, labor disputes or
shortages, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortages of equipment or supplies,
unavailability of transportation, acts or omissions of third parties, or
any other cause beyond their reasonable control.
13. WAIVERS:
Failure of either Party to enforce or insist upon compliance with the
provisions of this Agreement, or waive compliance with any provisions of
this Agreement in any instance, shall not be construed as a general
waiver or relinquishment of any provision or right of this Agreement.
14. ASSIGNMENT:
(a) Neither Party may assign or transfer its rights or obligations
under this Agreement without the other Party's written consent,
which consent may not be unreasonably withheld, except that
Frontier may assign this Agreement to its parent, successor in
interest, or an affiliate or subsidiary without Purchaser's
consent. Any assignment or transfer without the required consent is
void.
(b) Purchaser may not assign, sell, convey or otherwise transfer all or
a portion of its Presubscribed End-User base (collectively
"TRANSFER") without the prior written consent of Frontier, which
consent Frontier may not unreasonably withhold. Purchaser must
provide Frontier with at least 60 days prior written notice of
Purchaser's intent to initiate a Transfer. Within 30 days from the
date of receipt of Frontier of Purchaser's notice of intent,
Frontier will in writing inform Purchaser of the conditions
required by Frontier for its consent to the Transfer, which
conditions will at a minimum include compensation to Frontier to
cover charges for future Services that would have been provided but
for the Transfer, including but not limited to, any minimum charges
herein. If Frontier fails to respond and provide the required
conditions within the 30 day period, Frontier is deemed to have
consented to the Transfer. Purchaser understands and agrees that:
(i) its breach of this Section 14(b) is an incurable breach,
unless Frontier elects in writing to allow Purchaser to cure;
and
(ii) upon the occurrence of such breach Frontier may immediately
proceed with its remedies under Section 5.
15. CONFIDENTIALITY:
(a) Each Party agrees that all information furnished to and identified
by the other Party as being confidential or proprietary information
or trade secrets (collectively referred to as "PROPRIETARY
INFORMATION"), is and continuously remains, the sole and exclusive
property of the Party furnishing the same (the Party furnishing the
Proprietary Information hereinafter referred to as the "DISCLOSING
PARTY" and the other Party hereinafter referred to as the
"RECEIVING PARTY"). Each Party shall treat the Proprietary
Information and the contents of this Agreement in a confidential
manner and, except to the extent necessary in connection with the
performance of its obligations under this Agreement,
7/15/96
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neither Party may directly or indirectly disclose the same to any
third party without the written consent of the Disclosing Party.
(i) The Proprietary Information is to be used by the Receiving
Party only for the purposes contemplated in this Agreement and
the Receiving Party may not disclose the same to anyone other
than its employees on a need to know basis and who agree to be
bound by the terms of this Section. The Proprietary
Information may not be retained by the Receiving Party and all
originals and any copies or summaries shall be returned to the
Disclosing Party upon request.
(b) The confidentiality of obligations of the Section do not apply to
any portion of the Proprietary Information which:
(i) is or becomes public knowledge through no fault of the
Receiving Party;
(ii) is in the lawful possession of Receiving Party prior to
disclosure to it by the Disclosing Party (as confirmed by the
Receiving Party's records);
(iii) is disclosed to the Receiving Party without restriction on
disclosure by a person who has the lawful right to disclose
the information; or
(iv) is disclosed pursuant to the lawful requirements or formal
request of a governmental agency. If the Receiving Party is
requested or legally compelled by a governmental agency to
disclose any of the Proprietary Information of the Disclosing
Party, the Receiving Party agrees on behalf of itself and its
representatives that it will provide the Disclosing Party
with prompt written notice of such requests so that the
Disclosing Party has the opportunity to pursue its legal and
equitable remedies regarding potential disclosure.
(c) Each Party acknowledges that its breach or threatened breach of
this Section may cause the Disclosing Party irreparable harm which
would not be adequately compensated by monetary damages.
Accordingly, in the event of any such breach or threatened breach,
the Receiving Party agrees that equitable relief, including
temporary restraining orders or preliminary or permanent
injunctions, is an available remedy in addition to any legal
remedies to which the Disclosing Party may be entitled.
(d) Neither Party may use the name, logo, trade name, service marks,
trade marks, or printed materials of the other Party, in any
promotional or advertising material, statement, document, press
release or broadcast without the prior written consent of the other
Party, which consent may be granted or withheld at the other Party's
sole discretion.
(e) The Parties acknowledge the existence of a highly competitive
telecommunications marketplace and understand and agree that either
Party may offer to provide services to customers of the other Party
(including End-Users) in accordance with such rates and terms as a
Party and a customer may agree upon, provided however, a Party may
not use Proprietary Information of the other Party in soliciting
customers for services. Provided further, neither Party may, in any
marketing activities to existing customers of the other Party, use
the fact that Frontier is the Purchaser's underlying carrier as an
inducement for such customers to switch their services.
(f) Notwithstanding the restrictions set forth in this Section,
Frontier may use End-User Information in furtherance of its rights
under Section 5.
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16. INTEGRATION:
This Agreement and all Exhibits, Schedules and other attachments hereto,
represent the entire agreement between the Parties with respect to the
subject matter hereof and supersede and merge all prior agreements,
promises, understandings, statements, representations, warranties,
indemnities and inducements to the making of this Agreement relied upon
by either Party, whether written or oral.
17. CONSTRUCTION:
The language used in this Agreement is deemed the language chosen by the
Parties to express their mutual intent. No rule of strict construction
shall be applied against either Party.
18. GOVERNING LAW:
This Agreement shall, in all respects, be governed by and enforced in
accordance with the laws of the State of New York, excluding its choice
of law provisions. For valuable consideration, both Parties acknowledge
and agree that any action to enforce or interpret the terms of this
Agreement shall be instituted and maintained only in the Federal Court
for the Western District of New York, or if jurisdiction is not
available in the Federal Court, then a state court located in Rochester,
New York. Purchaser hereby consents to the jurisdiction and venue of
such courts and waives any right to object to such jurisdiction and venue.
19. NOTICES:
All notices, including but not limited to, demands, requests and other
communications required or permitted hereunder (not including invoices)
shall be in writing and shall be deemed to be delivered when actually
received, whether upon personal delivery or if sent by common carrier.
All notices given by mail or other means of delivery shall be sent by
first class mail, duly addressed and with proper postage, to the
following address, or such other address as each of the Parties hereto
may notify the other:
Frontier Communications of the West, Inc.
ATTN: Xxxxx Xxxxx, Contracts
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
Facsimile # 000-000-0000
Axces, Inc.
ATTN: Time Till, President
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile # 000-000-0000
20. COUNTERPARTS:
This Agreement may be executed in several counterparts, each of which
shall constitute an original, but all of which shall constitute one and
the same instrument.
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21. COMPLIANCE WITH LAWS:
During the term of this Agreement, the Parties shall comply with all
local, state and federal laws and regulations applicable to this
Agreement and to their respective businesses. Further, Purchaser shall
obtain, file and maintain any tariffs, permits, certifications,
authorizations, licenses or similar documentation as may be required by
the FCC, a state Public Utility or Service Commission, or any other
governmental body or agency having jurisdiction over its business. Upon
request, Purchaser will supply Frontier with copies of such tariffs,
permits, certifications, authorizations, licenses and similar
documentation.
22. THIRD PARTIES:
The provisions of this Agreement and the rights and obligations created
hereunder are intended for the sole benefit of Frontier and Purchaser,
and do not create any right, claim or benefit on the part of any person
not a Party to this Agreement, including End-Users.
23. SURVIVAL OF PROVISIONS:
Any obligations of the Parties relating to monies owed, as well as those
provisions relating to confidentiality, assurances of payment,
limitations on liability and actions and indemnification, survive
termination of this Agreement.
24. UNENFORCEABILITY OF PROVISIONS:
The illegality or unenforceability of any provision of this Agreement
does not affect the legality or enforceability of any other provision or
portion. If any provision or portion of this Agreement is deemed illegal
or unenforceable for any reason, there shall be deemed to be made such
minimum change in such provision or portion as is necessary to make it
valid and enforceable as so modified.
By its signature below, each Party acknowledges and agrees that sufficient
allowance has been made for review of this Agreement by respective counsel
and that each Party has been advised as to its legal rights, duties and
obligations under this Agreement.
FRONTIER COMMUNICATIONS OF THE WEST, INC. AXCES, INC.
By: /s/ Xxxxxxx X. Cessara By: /s/ Xxxxxxx Till
----------------------------------- ------------------------
Xxxxxxx Till, President
Dated: 9/7/96 Dated: 8/22/96
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