PORTIONS OF THIS EXHIBIT ("CONFIDENTIAL PORTIONS") HAVE BEEN
DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION ("COMMISSION")UNDER
RULE 406 OF THE SECURITIES ACT OF 1933 AND THE FREEDOM OF
INFORMATION ACT. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED
SEPARATELY WITH THE COMMISSION AND ARE IDENTIFIED IN THIS EXHIBIT
BY THE NOTATION "CT REQUESTED."
INTERNATIONAL CARRIER VOICE SERVICE AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 6th day of June,
1996, by and between MFS International, a Delaware corporation,
with its principal office at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, XX 00000 ("MFSI"), and STARTEC, Inc. a Maryland Corp.
with its principal office at 00000 Xxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000 ("Customer"). MFSI and Customer are
"Parties" hereto.
MFSI agrees to provide switched international telecommunications
services and other associated services (collectively "Service"),
as described herewith, to Customer on the following terms and
conditions, and Customer agrees to accept Service subject to the
specific terms and charges set forth in the Price Schedule(s) and
pursuant to the terms of this Agreement.
1. Confidentiality. During the Term and for three (3) years
thereafter, neither Party shall disclose any terms of this
Agreement, including pricing, or "Confidential Information" of
the other Party. For purposes of this Agreement, "Confidential
Information" shall mean information in written or other tangible
form specifically labeled as such when disclosed by a Party.
Confidential information transmitted orally shall be identified
as such at the time of its disclosure., Confidential Information
shall remain the property of the disclosing Party. A Party
receiving Confidential Information shall: (i) use or reproduce
such information only when necessary to perform this Agreement;
(ii) provide at least the same care to avoid disclosure or
unauthorized use of such information as it provides to protect
its own Confidential Information; (iii) limit access to such
information to its employees or agents who need such information
to perform this Agreement; and (iv) return or destroy all such
information, including copies, after the need for it has expired,
upon request of the disclosing Party, or upon termination of this
Agreement. Notwithstanding anything to the contrary contained
herein, a Party shall be allowed to disclose Confidential
Information pursuant to judicial or governmental order or if
otherwise required to do so by law.
2. TERM. The term of this Agreement shall be a minimum one (1)
year from the last date of signature. The Agreement shall
continue thereafter, in full force and effect, until canceled by
either party giving 60 days written notice to the other party.
Service will be discontinued the first business day of the third
month after such notice of termination.
3. RELATIONSHIP OF PARTIES. Neither this Agreement nor the
provision of Service creates a joint venture, partnership or
agency between MFSI and Customer.
4. USE OF NAME AND MARKS. This Agreement confers no right to
use the name, service marks, trademarks, copyrights, patents of
either Party except as expressly provided herein. Neither Party
shall take any action which would compromise the registered
copyrights or service marks of the other.
5. LEGAL COMPLIANCE: REMEDIES FOR NON-COMPLIANCE. Customer
represents and warrants that it has obtained all licenses,
approvals and/or regulatory authority necessary to operate as
contemplated herein.
6. CUSTOMER RESPONSIBILITIES. Customer shall comply with
MFSI's network interface procedures when it orders its own access
facilities. MFSI agrees to promptly provide Customer with such
network interface procedures.
7. SERVICE ACTIVATION. MFSI will use reasonable efforts to
provide Service within 30 days, following execution of the
applicable Price Schedule, or the requested delivery date,
whichever is later.
8. PRICING. Pricing is pursuant to the applicable Price
Schedule(s). MFSI reserves the right to change the pricing upon
ten (10) days prior written notice. Should any unit price
increase more than [CT REQUESTED] during a calendar year,
Customer may terminate this Agreement with 30 days written notice
providing that all relevant requirements have been met (i.e.
paragraph 14.3).
9. PAYMENT FOR SERVICE.
9.1 Customer shall pay MFSI for Service pursuant to the terms of
this Agreement.
9.2 MFSI will invoice Customer monthly for Service provided
hereunder. Invoices shall be due and payable upon receipt.
Undisputed charges for Service that are not paid within 30 days
after Customer's receipt of the invoice shall be past due.
Interest will be charged on past due amounts beginning the 31st
day following Customer's receipt of the invoice at a rate equal
to the lesser of 18% per annum or the maximum rate allowed by
law.
9.3 Customer will provide MFSI with a valid tax exemption form
to exempt Customer, under applicable law, from taxes that would
otherwise be paid by Customer. MFSI will invoice Customer for
taxes (other than income taxes payable by MFSI) that are not
covered by tax exemption certificate properly filed with MFSI.
9.4 If Customer, in good faith, disputes any invoiced amount, it
shall submit to MFSI, within 30 days following receipt of the
invoice, full payment of the undisputed portion of the invoice
and written documentation identifying and substantiating the
disputed amount. If the Parties, in good faith, cannot resolve
the dispute within a reasonable period of time, then the dispute
shall be settled by arbitration pursuant to Paragraph 16.
10. PAYMENT SECURITY. Provision of Service is contingent on
credit approval by MFSI. Upon request by MFSI, Customer shall
provide MFSI with financial circumstances. If Customer's
financial circumstances or payment history is or becomes
unacceptable to MFSI, then MFSI may require a deposit,
irrevocable letter of credit or other form of security acceptable
to MFSI within 20 days following MFSI's request.
11. INDEMNIFICATION. Each Party (as "Indemnitor") shall
indemnify, defend and hold harmless the other Party (as
"Indemnitee") from and against any and all liabilities, costs,
damages, fines, assessments, penalties and expenses (including
reasonable attorney's fees) resulting from (a) breach of any
provision in this Agreement by Indemnitor, its employees or
agents, or (b) any misrepresentation or illegal act of
Indemnitor, its employees or agents, arising out of the
Indemnitor's performance hereunder.
Customer shall indemnify, defend and hold MFSI harmless from and
against any and all liabilities, costs and damages (including
reasonable attorney's fees) resulting from any claim arising out
of libel, slander, or patent or trademark infringement arising
from the combination or use of Service with Customer provided
service or facilities; or Customer's marketing, advertising,
sales or promotion activities.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION
LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS, CLIENTS OR
GOODWILL ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE
PERFORMANCE OR NONPERFORMANCE OF BUSINESS HEREUNDER.
THE LIABILITY OF MFSI WITH RESPECT TO THE INSTALLATION (INCLUDING
DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE, REPAIR,
INTERRUPTION, OR RESTORATION OF ANY SERVICE OR FACILITIES OFFERED
UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE
CHARGE APPLICABLE UNDER THIS AGREEMENT TO THE PERIOD DURING WHICH
SERVICES WERE AFFECTED. FOR THOSE SERVICES WITH MONTHLY
RECURRING CHARGES, THE LIABILITY OF MFSI IS LIMITED TO AN AMOUNT
EQUAL TO THE PROPORTIONATE MONTHLY RECURRING CHARGES FOR THE
PERIOD DURING WHICH SERVICE WAS AFFECTED.
13. WARRANTIES. MFSI WILL USE REASONABLE EFFORTS UNDER THE
CIRCUMSTANCES TO MAINTAIN ITS OVERALL NETWORK QUALITY. THE
QUALITY OF SERVICE PROVIDED HEREUNDER SHALL BE CONSISTENT WITH
OTHER COMMON CARRIER INDUSTRY STANDARDS, GOVERNMENT REGULATIONS
AND SOUND BUSINESS PRACTICES. MFSI MAKES NO OTHER WARRANTIES
ABOUT THE SERVICE PROVIDED HEREUNDER, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
14. TERMINATION FOR CAUSE.
14.1 A Party may terminate this Agreement upon the other Party's
failure to cure any of the following with 30 days following
written notice thereof: (a) the (i) insolvency, corporate
reorganization, arrangement with creditors, receivership or
dissolution of the other Party; or (ii) institution of bankruptcy
proceedings by or against the other Party; (b) assignment or
attempted assignment of the Agreement or any interest therein,
except as permitted by paragraph 19 hereof; (c) change in control
of the defaulting Party without the other Party's prior written
consent, which consent shall not be unreasonably withheld; (d) a
final order by a government entity with appropriate jurisdiction
that a Service or the relationship hereunder is contrary to law
or regulation; or (e) breach of any provision herein not
otherwise referred to in this Paragraph 14.
14.2 MFSI may terminate this Agreement immediately and without
notice if Customer breaches a provision of Paragraph 10 or 11.
14.3 Upon termination of this Agreement a Party may recover from
the other all sums it is owed at the time of termination.
15. TERMINATION FOR CONVENIENCE. Customer may terminate this
Agreement for convenience with 60 days advance written notice,
provided that all early termination requirements stipulated in
the Price Schedule(s) are met.
16. ARBITRATION. Any dispute arising out of or relating to the
Agreement will be finally settled by arbitration in accordance
with the rules of the American Arbitration Association. The
arbitration will be governed by the United States Arbitration
Act, 9 U.S.C. Sec. I, et. seq., and judgment upon the award
rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The arbitration will be held in the Washington,
D.C. metropolitan area.
17. FORCE MAJEURE. Neither Party shall be liable for any delay
or failure in performance of any part of this Agreement, other
than for any delay or failure in an obligation to pay money, to
the extent such delay or failure is caused by fire, flood,
explosion, accident, war strike, embargo, governmental
requirement, civil or military authority, Act of God, inability
to secure materials or labor or any other causes beyond their
reasonable control. Any such delay or failure shall suspend this
Agreement until the Force Majeure ceases and the term shall be
extended by the length of the suspension.
18. NOTICES. Notices, requests or other communications
(excluding invoices) hereunder shall be in writing and sent by
certified mail addressed as follows:
If to MFS International:
MFS International
ATTN: Manager-Carrier Svcs.
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx,XX 00000
(000) 000-0000
If to Customer:
STARTEC, Inc.
00000 Xxxxx Xxxx Xx. #000
Xxxxxxxx, XX 00000
Attention: Director,
International Voice Services
Fax (000) 000-0000
phone: (000) 000-0000
19. ASSIGNMENT. Neither this Agreement nor any right or
obligation hereunder may be assigned or delegated to any other
entity without the prior written consent of the other Party,
which consent shall not be unreasonably withheld.
20. RULES OF CONSTRUCTION. No rule of construction requiring
interpretation against the draftsman shall apply in the
interpretation of this Agreement.
21. ENTIRE AGREEMENT. This Agreement, together with the
attached Price Schedule(s), represents the entire agreement of
the Parties with respect to the subject matter hereof and
supersedes all other agreements (written or oral) between the
Parties relating to the Service.
22. MODIFICATION OF AGREEMENT. This Agreement, including its
Price Schedule(s), may be amended, modified or supplemented only
by a separate written document executed by authorized
representatives of both Parties.
23. WAIVER OF TERMS. No term or provision herein shall be
waived, and no breach or default excused, unless such waiver or
consent is in writing and signed by the Party to which it is
attributed. No consent by a Party to, or waiver of, a breach or
default by the other, whether express or implied shall constitute
a consent to, or waiver of, any subsequent breach or default.
24. PARTIAL INVALIDITY. If any provision of this Agreement
shall be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate or render the Agreement
unenforceable, but rather the Agreement shall be construed as if
not containing the invalid or unenforceable provision. However,
if such provision is an essential element of this Agreement, the
Parties shall promptly attempt to negotiate a substitute
therefor.
25. CUMULATIVE REMEDIES. Except as otherwise provided herein,
the remedies provided for in this Agreement are in addition to
any other remedies available at law or in equity.
26. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the Commonwealth of
Virginia, and the Parties irrevocably agree to the exclusive
jurisdiction of the courts of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year last written below.
Customer: STARTEC, Inc. MFS International
/s/_________________________ /s/_________________________
Name: Xxxxxx Xxxxx Name: Xxxx Xxx Xxxxx
Title: Manager - Carrier Svcs. Title: V.P. International
Carrier Relations
Date: 6 June, 1996
Date: 6/26/96
ANNEXURE to STARTEC Carrier Services Agreement
This Annexure is made and entered into this 2nd day of May,
1997, by and between STARTEC, Inc., ("STARTEC") a
corporation duly incorporated in the state of Maryland and
having its principal office at 00000 Xxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxxxx, XX 00000 and WORLDCOM, Inc. successor in
interest to MFS International, Inc. "Customer") a
corporation duly incorporated in the state of Georgia and
having its principal office at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, 00000-0000.
Whereas, the Parties have signed a master Agreement dated
June 6, 1996.
Now this Annexure witnesseth as follows:
1a. Service: Dedicated Access-Switched Services.
1b. Special Rates:
Effective: March 1, 1997
Special rate supersede base rates.
Code Country Rate/min.
[CT REQUESTED]
2. Billing Method: unless otherwise agreed to in any
annexure(s) attached hereto, Billing will be in the
following format: 1. International Termination: billing
will be in [CT REQUESTED] increments with a minimum of [CT
REQUESTED] 2. Mexico Termination will be billed in
increments of [CT REQUESTED] with a [CT REQUESTED] minimum.
3. Domestic U.S. Termination will be billed in increments
of [CT REQUESTED] with a minimum of [CT REQUESTED] 4. 800
U.S. Origination traffic will be billed in increments of [CT
REQUESTED] with a minimum of [CT REQUESTED]
3. Rate Modification: [CT REQUESTED]
4. Cust. Account [CT REQUESTED] (STARTEC Use only)
5. Please note customer signature not required, rates will
become effective on the stated effective date.
AUTHORIZED BY: STARTEC, Inc. /s/ Xxxxxx X. Xxxxx
Date: 2 May, 1997 Xxxxxx X. Xxxxx, Director, Carrier
Services
