EXHIBIT 10.8
CARRIER SERVICE AGREEMENT
-----------------------
This Service Agreement ("Agreement") is made as of the 10 day of March,
1999 ("Effective Date"), by and between NetVoice Technologies, Inc. (NVT),
with its principal office at 00000 Xxxxxxxx Xx., Xxx. 000, Xxxxxx, Xxxxx
00000, and Intercomm Americas, Inc. with its principal office at 0000
Xxxxxxxxxx #1920, hereinafter called ("CUSTOMER").
WHEREAS, CUSTOMER is a common carrier that has requested that NVT provide
the services described in Exhibits A and B and CUSTOMER agrees to accept
said services pursuant to the terms hereof.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. NVT agrees to furnish CUSTOMER telecommunications services
set forth in Exhibit A and Exhibit B to this Agreement, at the rates
set forth therein and subject to the terms and conditions contained in
this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective Date
and will continue for a period of three (3) years. After the initial
term, this Agreement shall automatically be renewed for additional
successive one (1) year terms unless either party shall give to the
other not less than sixty (60) days written notice of termination
prior to the expiration date of the then - current term. (I will have
counsel amend this for the 45 day cancellation provision that would
apply to individual circuits).
3. CHARGES AND PAYMENT.
3.1 All Usage Charges and Monthly Recurring Charges for services
provided by NVT under this Agreement are set forth in Exhibit A,
which charges are subject to change as hereinafter provided.
3.2 Monthly Recurring Charges, Usage Charges and other charges for
services provided under this Agreement shall be payable as
follows:
3.2.1 All Monthly Recurring Charges for services provided
under this Agreement will be billed in advance of usage
and shall be paid by CUSTOMER to NVT, without demand or
setoff, within 5 days after the date of the NVT
invoice.
3.2.2 All Usage Charges, if applicable, for services provided
under this Agreement will be billed following the month
in which actual usage occurred and shall be paid by
CUSTOMER to NVT, without demand or setoff, within 10
days after the date of the NVT invoice.
3.3 Any amount not received by NVT on the due date specified above
will be deemed past due. Any past due amounts are subject to a
late charge in the amount of one and one-half percent (1.5%) per
month compounded monthly, or the maximum rate allowed by law,
whichever is less, from the due date until payment is received by
NVT.
1
3.4 In case CUSTOMER disputes any billing of NVT, CUSTOMER must pay
the full amount within the time frames set forth in Sections
3.2.1 and 3.2.2. A description of the disputed billing must be
delivered to NVT in writing within 10 days of the invoice, and
NVT will set aside the disputed amount in a separate account for
up to 30 days while the Parties attempt to resolve the dispute.
3.5 NVT reserves the right to increase the Usage Charges, Monthly
Recurring Charges and service charges hereunder upon at least
forty-five (45) days prior notice to CUSTOMER, provided CUSTOMER
may elect to terminate this Agreement without penalty in the
event of any such increase. In order to exercise such election
to terminate, CUSTOMER must give NVT written notice of such
election within (15) days after the date of the notice of
increase from NVT.
3.6 NVT may require Customer to make a Deposit or an Advance Payment
or both to be held as a guarantee for the payment of charges.
The Deposit or Advance Payment shall not exceed an amount equal
to one month's estimated usage. A Deposit does not relieve the
Customer of the responsibility for the prompt payment of bills on
presentation.
In the event of cancellation, the Deposit will be applied toward
the Customer's final xxxx and any remainder will be returned to
the Customer within 90 days after the service has been
disconnected.
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to NVT. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains current.
In no event shall NVT be liable for any taxes due by CUSTOMER and
CUSTOMER hereby indemnifies NVT against any such claims for taxes by
any tax in authority or party acting on behalf of such taxing
authority.
5. LIMITATION OF LIABILITY. NVT'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. NVT WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. NVT SHALL
HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE ARISING ROM
THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL EXCHANGE CARRIER,
OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF NVT.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless NVT,
its affiliates, their respective officers, directors, shareholders,
employees, agents, successors and assigns, and each of them, from and
against any and all damages, losses, claims, liabilities, demands,
charges, suits, penalties, costs of expenses, whether accrued,
absolute, contingent or otherwise, including but not limited to court
costs and attorney's fees, which any of the foregoing may incur or to
which any of the foregoing may be subjected, arising out of or
otherwise based upon any of the following:
6.1 Any breach or default by CUSTOMER under any of the provisions of
this Agreement or of any other agreement or instrument to which
NVT or an affiliate is a party or which is in favor of NVT or an
affiliate of NVT;
2
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service xxxx arising out of material, data,
information, or other content transmitted by CUSTOMER over NVT's
networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of NVT includes any
person or entity controlling, controlled by or under common control
with NVT.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event
CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or relief (such as the appointment of a trustee,
receiver, liquidator, custodian or other official) under any
bankruptcy, insolvency or other similar law or makes an
assignment for the benefit of its creditors or enters into an
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then NVT may, upon notice to CUSTOMER, at the NVT's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance is
corrected (provided NVT shall not be prohibited from terminating this
Agreement after suspending service); (ii) declare all charges that
have been billed to CUSTOMER by NVT to be immediately due and payable,
whereupon all such amounts shall become immediately due and payable;
or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. NVT, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as NVT may have under any agreement, at law or in equity,
in the event CUSTOMER or any affiliate of CUSTOMER breaches any
provision of any other agreement or instrument with or in favor of NVT
or any affiliate of NVT.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, NVT
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of NVT's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or request
of the United States government or of any government (including
without limitation, state and local governments having jurisdiction
over any of the parties) or of any department, agency, commission,
court, bureau, corporation or other instrumentality of any one or more
of such governments, or of any civil or military authority; national
emergencies; insurrection; riots; wars; strikes, lockouts, work
stoppage or other such labor difficulties; or any act or omission of
any other person or entity.
3
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written
consent of NVT. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance or
transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of NVT to enforce or insist upon
compliance with any of the terms or conditions of this Agreement or to
exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any term,
condition or remedy of or under this Agreement, and this Agreement and
each of its provision shall remain at all times in full force and
effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
If to NVT: NetVoice Technologies, Inc.
00000 Xxxxxxxx Xx., Xxx. 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
If to CUSTOMER: Intercomm Americas Inc.
0000 Xxxxxxxxxx #0000
Xxxxxxx, Xxxxx 00000
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the remainder
of this Agreement, or the application of such term, covenant, or
condition to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected by such
determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in this
Agreement with respect to payment of amounts due and indemnification
shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience and
reference only and do not affect or limit the interpretation, contents
or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF THE
COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE,
4
CONTROVERSY OR OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each of
such counterparts shall, for all purposes, be deemed to be an original
but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or entity
that is not a party hereto or a successor or permitted assign of a
party hereto.
19. REGULATORY CHANGES. In the event of any regulatory, judicial, or
legislative body having jurisdiction over the way in which services
referenced herein are provided, materially changes the scope, terms,
or operating conditions of this Agreement, NVT may terminate this
agreement in its sole discretion without penalty.
20. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of NVT, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by NVT is subject to the condition that
the service will not be used for any unlawful purpose.
21. ENTIRE AGREEMENT. This Agreement, including its Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous agreements,
whether written or oral, between NVT and CUSTOMER. No waiver,
alteration or modification of any of the provisions of this Agreement,
shall be binding unless in writing and signed by a duly authorized
representative of the parties; provided, however, that only written
notice to CUSTOMER is required to increase service rates in accordance
with Section 3.6.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ XXXXXXX XXXXX By: /s/ XXXX XXXX
--------------------------- ----------------------------
Xxxxxxx Xxxxx
Name: Xxxx Xxxx
--------------------------
(Print Name)
Title: President Title: COO
-------------------------
Date: 3/9/99 Date: 3/10/99
------------------------- --------------------------
5
EXHIBIT A
---------
NETVOICE TECHNOLOGIES, INC.
---------------------------
TERMINATION SERVICE
NVT will terminate telecommunications received from Customer by means of a
DSI(T-1) interconnection at one of NVT's points of presence. Calls may be
carried by NVT to and terminated in other cities in which Customer has a
point of presence ("on-net cities"), i.e., to the country or NPA/NXX for
customer's other on-net cities. NVT's on-net cities are listed on Exhibit
B. The following charges will apply:
DRAFT: PRICING TO BE CONFIRMED
------------------------------
Transport rate: 1.5 cents per minute
6 second billing increments
200,000 minutes per T-1 guaranteed (minimum charge per T-1:
$3000.00) Minutes will be aggregated for all T-1's installed,
allowing 200,000 for each circuit/gateway. (ie) 12 T1's includes
2,400,000 minutes total minutes. Usage above 2,400,000 minutes
are billed at .0125.
IP Prices are FOB NVT POP.
NetVoice Technologies, Inc. CUSTOMER
By: /s/ XXXXXXX XXXXX By: /s/ XXXX XXXX
--------------------------- ----------------------------
Xxxxxxx Xxxxx
Name: Xxxx Xxxx
--------------------------
6
