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EXHIBIT 6.14
GENERAL TERMS AND CONDITIONS FOR CUSTOMER AGREEMENTS
This agreement is made as of November 1st, 1999, by and between MEGAWORLD, INC.
("MEGW"), a Delaware corporation with offices at 0000 X. Xxxxxxx Xxxxxxx Xx.,
Xxxxxxx, XX 00000, XXX, and SEQUEL COMMUNICATIONS , a New Jersey corporation
with offices at 0000 Xxxxxx Xxxx, Xxxxx Xxxxxxxxxx, XX 00000-0000 ("Customer").
I. SERVICE: "MEGW" agrees to provide Enhanced Messaging Services, local and long
distance message transmission services [more fully described on Schedule A
attached hereto and made a part hereof,] within the territory (the "Territory")
set forth on Schedule A attached hereto and made a part hereof ("Schedule A")
including transmission, switching and messaging facilities necessary to transmit
and terminate Customer's enhanced messaging services, local, toll, and long
distance message traffic to all points within the Territory. Customer shall pay
for and accept such services on a nonexclusive basis in accordance with the
further terms of this Agreement.
II. TERM: This Agreement shall commence on the date set forth above [or such
earlier date as Customer shall begin receiving the services contemplated under
this Agreement in the ordinary course of its business. Subject to Section III,
the initial term of this Agreement shall expire one (1) year from the date
hereof (the "Initial Term"). Upon expiration of the Initial Term, this Agreement
shall automatically be renewed for successive one (1) month periods, unless
either party shall notify the other in writing at least five (5) days in advance
that it does not wish this Agreement to be renewed.
III. TERMINATION: "MEGW" or Customer may terminate this Agreement, and/or
terminate or suspend any service provided to Customer under it, at any time
without liability upon ten (10) days prior written notice. Without limiting the
foregoing, "MEGW" may terminate this Agreement without liability on five (5)
days prior written notice to Customer for any material breach of this Agreement
including, but not limited to, a failure by Customer to pay in a timely manner
any undisputed charges for services rendered. In addition, "MEGW" may terminate
this Agreement and/or terminate or suspend any service to Customer under it
immediately and without notice or liability in the event that "MEGW" in its
reasonable judgement deems such action necessary in order to protect or preserve
its network.
IV. CONNECTIONS: Connection by Customer to a network designated by "MEGW"
("Network") shall be made at the point(s) of presence ("POP") set forth on
Schedule A. Customer shall be responsible for the coordination of service, and
the payment of all charges and costs reasonably necessary, to effect such
connection.
V. CHARGES AND PAYMENTS:
A. CHARGES: Customer shall pay the undisputed charges for the services
rendered to it by "MEGW" in accordance with Schedule A. Customer
understands and agrees that such charges may be adjusted prospectively to
the extent mandated by any regulatory authority to which "MEGW" is subject.
Additionally, "MEGW" may adjust the rates reflected on Schedule A at any
time on thirty (30) days written notice to the Customer.
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B. LENGTH: Unless otherwise stated on Schedule A, all call lengths shall be
rounded up to the next tenth of a minute. International calls shall be
billed in 60 second minimums, domestic outbound at 60 second increments.
"MEGW" shall have the right to adjust the call lengths applicable to
Customer hereunder in a corresponding manner upon written notice to the
Customer.
C. PAYMENT TERMS: "MEGW" shall provide invoices to Customer for services
provided hereunder every (5) days, or at such longer intervals as "MEGW"
may elect. Unless otherwise agreed, payment of all undisputed invoiced
amounts to Customer shall be made within five (5) business days after
receipt of invoice without right of setoff or adjustment except to the
extent Customer and "MEGW" have entered into a bi-directional relationship
in which event the parties shall set off and credit competing invoices and
only then resulting net amount shall be subject to the further terms
hereof. All payments shall be made in U.S. dollars. "MEGW" will be under no
obligation to negotiate any disputes while any balance remains overdue.
Late charges in the amount of eighteen (18%) percent per annum of the
outstanding amount of Customer's account shall be payable monthly on any
past due amounts and shall continue to accrue and remain due and payable
until all undisputed amounts due have been paid in full. In the event that
"MEGW" shall retain an agency or attorney for the purpose of collecting
amounts owed by Customer, Customer shall be obligated to pay all such
amounts, any accumulated late payment charge, and "MEGW's" expenses of
collection, including but not limited to reasonable attorneys; fees which
attorney fees may be based on a percentage of the amount due not to exceed
thirty-three (33%) percent thereof. If Customer in good faith disputes in
writing the amount or appropriateness of a charge including an invoice from
"MEGW", Customer shall notify "MEGW" of the disputed charge and provide
documentation reasonably requested by "MEGW" to resolve the dispute. Such
payments, excluding the disputed amount shall be paid by the due date set
forth in this Agreement. Customer and "MEGW" shall exercise reasonable,
good faith effort to resolve the disputed charges. Failure to contest a
charge within forty-five (45) days of the date of the invoice shall create
an irrefutable presumption of correctness of the charge, absent manifest
error.
D. ESTIMATED PAYMENTS: If the Order Information section of this Agreement
indicates that estimated payments are required, "MEGW" will notify the
Customer on the last day of the "Estimated Usage Period", as defined in the
Order Information Section of charges incurred by the Customer during such
period. The Customer will pay "MEGW" such estimated amount ("Estimated
Payment") no later than the Payment Due Date [as defined in the Order
Information Section]. "MEGW" will provide an invoice for the usage charges
actually incurred that Month less that Month's Estimated Payment; provided,
however, that if a minimum Monthly payment obligation applies for that
Month and such minimum has not been met, then the invoice amount will be
that Month's minimum payment obligation less that Month's Estimated
Payment. The Customer will pay the invoiced amount within the Payment
Period.
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VI. CUSTOMER'S RESPONSIBILITIES: In furtherance of this Agreement, Customer
shall:
A. Be Responsible for and pay any and all local, state, or federal taxes or
charges in the nature of taxes imposed by any governmental authority or
regulatory agency in addition to the charges required by "MEGW" pursuant to
this Agreement;
B. Obtain at its own expense any governmental or regulatory licenses,
consents or approvals with respect to the utilization of "MEGW's" Services
and any Network as contemplated by this Agreement;
C. Examine and review all technical aspects of "MEGW's" system and the
system of any Network in order to assure itself that its transmitting,
receiving, and switching equipment is compatible with all "MEGW's" and such
Network's equipment and systems prior to any linkup with "MEGW's" and such
Network's system;
D. Upon "MEGW's" request, promptly furnish any technical information or
specifications relating to its system as may be reasonably required by
"MEGW" or the Network.
E. Not permit or suffer the use of "MEGW's system or facilities for any use
or purpose not permitted by law;
F. Be responsible for all charges, materials, equipment, and labor to
connect Customer's network with "MEGW's" system and/or the Network at the
designated POP, subject to "MEGW" and the Network's prior review of any
such plans or arrangements.
G. Be responsible for billing and collection of all accounts, customers or
end users to whom or which Customer or any of Customer's customers provide
services.
H. Be responsible and pay all costs, claims, and damages, if any, arising
from fraudulent calls of any nature which may be made by any customer or
end user of Customer or any customer or end users of Customer's customers
or end users using services provided by "MEGW".
I. Not use or permit the use of any tradename, trademark, service xxxx,
brand name, logo or other intellectual property right of "MEGW" without
"MEGW's" prior written consent.
VII. FINANCIAL REPORTS: If the Order Information section of this Agreement
indicates that financial reports are required, within forty five (45) days after
the end of each calendar quarter, the Customer will provide "MEGW" with a
written report updating the Customer's financial status ("Quarterly Report"),
and within ninety (90) days after the end of each calendar year, the Customer
will provide an updated consolidated unaudited balance sheet and income
statement for Customer for such quarter. The Customer represents and warrants
that each Quarterly Report will be true and correct in all material respects and
will not contain any material misstatement of omission and that the quarterly
and annual financial statements will be prepared in accordance with generally
accepted accounting principles consistently applied and will present fairly in
all material respects the financial condition of Customer as of such dates and
for the periods then ended.
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VIII. SECURITY DEPOSITS: If the Order Information section of this Agreement
indicates that security deposits are required, each required security deposit
will either be in cash (paid by certified check or via wire transfer of
immediately available funds) or an irrevocable stand-by Letter of Credit in a
form and from a financial institution reasonable acceptable to "MEGW". The
"Initial Security Deposit" amount will be provided prior to the initiation of
service. Thereafter, if requested in writing by "MEGW" the Customer will add
additional amounts to the Initial Security Deposit such that the total amount of
security deposit being held by "MEGW" at all times is at least equal to the
"Continuing Security Deposit". The Customer provide any such required additional
amounts within twenty-four (24) business hours after receiving "MEGW's" written
request. "MEGW" will refund or release, as applicable, any security deposit it
is holding (plus, if the security deposit is in the form of cash, accrued
interest at the applicable rate set by regulation, of the state in which "MEGW"
invoices the Customer, or if interest at the applicable rate set by regulation,
"MEGW's" then-prevailing interest rate for security deposit refunds) if the
following conditions are met by the Customer: (i) for the entire "Deposit
Release Period", the Customer pays "MEGW" in full when each payment is due; (ii)
"MEGW" has determined that the Customer's Quarterly Reports covering the Deposit
Release Period indicate that there has been no material adverse change in
Customer's financial condition and (iii) Customer is not otherwise in breach or
default of any of its obligations under this Agreement. If "MEGW" does not
refund or release the security deposit during the Term as set forth above, the
security deposit will be refunded or released, as applicable, at the later of
the Term as set forth above, the security deposit will be refunded or released,
as applicable, at the later of the end of the Term and when all of Customer's
obligations to "MEGW" have been paid in full. If, at any time during the term of
the Agreement, "MEGW" determines that there has been a materially adverse change
in Customer's financial condition "MEGW" may require Customer to provide a
security deposit or an additional security deposit in an amount to be determined
by "MEGW" The Customer shall provide any such required amounts within five (5)
business days after receiving "MEGW's" written request therefore. "MEGW" may
offset against any Security Deposit provided hereunder any amounts that are not
paid when due, without prior notice to Customer, and upon notice from "MEGW",
Customer shall within twenty-four (24) business hours deliver to "MEGW" an
additional security deposit in an amount determined by "MEGW".
IX. WARRANTY: "MEGW" warrants to Customer that it will provide the same quality
of service it provides to other wholesale Customers, which services shall at a
minimum meet minimum standards required by applicable law or regulation.
EXCEPT FOR ANY EXPRESS WARRANTIES STATED IN THIS AGREEMENT, "MEGW" DISCLAIMS ALL
WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTIBILITY AND FITNESS AND OF FITNESS FOR A PARTICULAR PURPOSE WHETHER SUCH
WARRANTIES ARE MADE BEFORE OR AFTER THE EXECUTION HEREOF. THE STATED WARRANTIES
HEREIN ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF "MEGW" FOR
DAMAGES INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF "MEGW"
SERVICE. IN NO EVENT SHALL "MEGW" BE LIABLE TO CUSTOMER FOR SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF MEGAWORLD'S PERFORMANCE UNDER
THIS AGREEMENT. IT IS EXPRESSLY UNDERSTOOD THAT THE SOLE REMEDY OF CUSTOMER FOR
BREACH OF THIS AGREEMENT BY "MEGW" OR FOR ANY DAMAGE TO CUSTOMER OR OTHER PERSON
CLAIMED TO HAVE RESULTED FROM CUSTOMER'S RESALE OF "MEGW" SERVICE HEREUNDER OR
FROM THE USE OF "MEGW'S" SERVICE IS CREDITS FOR
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SERVICE OUTAGE OR INTERRUPTION AS SET FORTH IN THIS AGREEMENT AND THE SERVICE
SUPPLEMENTS.
X. FORCE MAJEURE: "MEGW" shall not be liable for any default or breach of
obligation or failure, interruption, or diminution of service in the event that
such default, breach, failure, interruption or diminution is the result of an
act of God, natural disaster, fire civil or military authority, insurrection,
riot, war, national emergency, strike or other labor dispute, vandalism, power
failure, cut cable, failure of other Customers or exchanges, change in "MEGW'
underlying Customer contract or rate structure, flood, explosion, change of law,
order, regulation of any governmental authority or other cause out of "MEGW's"
reasonable control.
XI. LIMITATION OF LIABILITY: Without limiting the provisions of Sections X or XI
hereof, "MEGW" shall not be responsible or liable for any interruption,
diminution, or failure of service, in whole or in part, and, in no event, shall
"MEGW" be responsible or liable for any special, indirect incidental or
consequential damages incurred by Customer or any user of Customer's service. In
addition, "MEGW" shall not be responsible or liable for any interruption,
diminution, or failure of service caused by any third party, including, but not
limited to, any other Customer of Customer or "MEGW's" message traffic
XIII. CONFIDENTIALITY: The terms of this Agreement and any confidential
information relating to "MEGW", Customer, or their respective Customers which
are furnished or revealed pursuant to, or in connection with, this Agreement are
deemed to be confidential with the exception of (i) confidential information
previously known to a party; (ii) is the public domain other than through
wrongful disclosure of a party. Neither party shall at any time use any such
information except in connection with performance of its obligations under this
Agreement, or disclose any of the terms of this Agreement nor any such
previously described confidential information to any other third party except
(i) to the professional advisors of either party who require such information in
connection with the performance of such party's performance of its obligations
hereunder, and who have executed written agreements pursuant to which they agree
to be bound by the provisions of this Section XIII as may be required by
applicable law; and (ii) as may be required by applicable law; provided, that
the disclosing party shall give the other party reasonable notice prior to such
disclosure to permit the other party to seek an appropriate protective order,
stay or other exemption.
The parties agree that a breach or threatened breach of the terms of this
article may result in irreparable injury to the non-breaching party for which a
remedy in damages would be inadequate. The parties agree that in the event of
breach or threatened breach, the non breaching party shall be entitled to seek
an injunction to prevent the breach or threatened breach, and the breaching
party hereby waives any defense that an adequate remedy in law exists and
acknowledges that such a breach or threatened breach would result in irreparable
injury to the non-beaching party.
XIII. INDEMNIFICATION: Customer and "MEGW" will mutually indemnify each other
and its affiliates and their respective directory, officers, employees, agents
and representatives ("Indemnified Parties"), and save them harmless from and
against any and all claims, actions, damages, liabilities, and expenses (whether
from an action brought by the Indemnified Party of a third party) (collectively,
"Losses") occasioned by any act or omission of Customer or any of its customers
or end users or any of their respective directors, officers employees or agents
relating to the use of the Service provided hereunder. If any Indemnified Party
shall, without fault on its part be made a party to any litigation commenced by
or against such Indemnified party or respective party, then the other party
shall protect and hold such Indemnified Party harmless, and shall pay all costs,
expenses, losses, damages, settlement
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payments (including reasonable attorney's fees, costs and expenses incurred or
paid by such Indemnified Party in connection with said litigation.
XIV. ARBITRATION: Any controversy, claim or dispute arising out of or relating
to the Agreement, or any breach termination or invalidity thereof, shall be
settled by binding arbitration before a single arbitration in accordance with
the Rules of The American Arbitration Association under its Commercial
Arbitration Rules and the Supplementary Procedures for Large, Complex Disputes
("Rules"), and judgment upon any award rendered may be entered into any court
having proper jurisdiction in the County City and State of New York.
XV. MISCELLANEOUS:
A. APPLICABLE LAWS: This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
B. WAIVER: A waiver by either party of a breach of any provision of the
Agreement and these General Terms shall not operate as, nor be construed
as, a waiver of any subsequent breach.
C. ENTIRE AGREEMENT: This Agreement (including the Agreement, General Terms
and conditions, and all Exhibits, Schedules and Order Information)
represents the entire agreement between the parties with respect to the
subject hereof and may be modified only by a subsequent written document
signed by the parties. This Agreement may be executed in one or more
duplicate originals, all of which shall constitute but one agreement
between the parties hereto.
D. PARTIAL INVALIDITY: The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
E. HEADINGS: All headings contained herein are inserted for convenience
only and do not constitute a part of the Agreement and these General Terms.
F. ASSIGNMENT: This Agreement and any rights or obligations arising under
it may not be assigned by Customer without :"MEGW's" prior written approval
which shall not be unreasonably withheld.
G. BENEFIT: This Agreement shall be binding upon and inure to the benefit
of "MEGW", Customer, and their respective successors and assigns to the
extent permitted herein.
H. NOTICE: Any notice to be given under the Agreement of these General
Terms, shall be in writing, shall be deemed given when mailed by registered
or certified mail, return receipt requested, postage prepaid to the party
to be notified at the address set forth above in this Agreement, or at such
other address as such party may designate in writing to the other party.
I. SERVICE LEVEL: "Megw" will make best efforts to maintain and operate the
services and network equal to the standards set by the public switched
telephone network and the Internet.
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J. ADDITIONAL TERMS: This is a Customer-to Customer Agreement subject to
Section 211 of the Communications Act of 1934, as amended. The Customer is
responsible for and shall comply with any and all legal and regulatory
requirements with respect to the Customer's use and resale of the Services,
including those of the Federal Communications Commission and state public
utility commissions. The Services are governed by this Agreement and all
Customer obligations and "MEGW" rights set forth in the "General Rules and
Regulations" section of "MEGW's" interstate tariff, if any, as may be
amended by "MEGW" in accordance with applicable laws and regulations.
SEQUEL COMMUNICATIONS INC.
Signature: /s/ Xxxxxxx Xxxxxx
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Printed Name/Title: Xxxxxxx Xxxxxx, VP of Operations
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Date: 11-8-99
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MEGAWORLD, INC.
COMMUNICATIONS DIVISION
Signature: /s/ Xxxxxx X. Xxxxxxxx
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Printed Name/Title: Xxxxxx X. Xxxxxxxx, President
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Date: 11-8-99
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SCHEDULE A
SERVICE DESCRIPTION:
Messaging Services including Fax to Email, Email to Fax, and voice messaging to
email. All standard services included on Web page xxx.xxx0xx.xxx will be made
available to Sequel Communications.
RATES:
Facsimile send or receipt:
XII. TOLL NUMBER: 2 CENTS PER PAGE
Toll-Free Number: 10 cents per page
Voice send or receipt:
Toll Number: 2 cents per minute
Toll-Free Number: 10 cents per minute
All rates are US domestic delivery. International may be higher.
COMMISSION RATES ON ABOVE LISTED SERVICES:
A 20% commission or discount will be extended to Sequel Communications
SPECIAL SERVICE REQUEST:
The xxx.xxx0xx.xxx service includes free toll or toll free number assignment as
long as the service is being used on a monthly basis. If a number is to be used
on a casual basis and the number is to be maintained on the system, a charge of
$1.00 per month per number will be charged.
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