CARRIER SERVICE AGREEMENT
THIS CARRIER SERVICE AGREEMENT ("AGREEMENT") is made and entered into by
and between Cybertel Communications Corp., a Nevada corporation, with its
principal office located at 0000 Xxxxxxxxx Xxxxxx Xxxxx 000, Xx Xxxxx,
Xxxxxxxxxx 00000 ("Cybertel"), and LD Exchange, Com, Inc. ("Purchaser"), a
Delaware corporation, with its principal office located at 00000 Xxxx Xxxxx
Xx. #000, XX, XX 00000.
Background:
Cybertel provides telephone communications services between its
location(s) and the outbound termination points identified on Exhibit A
("Services") attached hereto and incorporated herein by this reference; and
Purchaser desires to purchase and Cybertel desires to provide, upon the
terms and conditions set forth in this Agreement, telephone communications
services to Purchaser.
Agreement:
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Service Commencement Date. Cybertel shall commence providing Services to
Purchaser hereunder on or about ________.
2. Rates Terms and Conditions. Cybertel shall provide Services to Purchaser
at the rates, terms and conditions described in Exhibit A, and to the
termination points set forth in Exhibit A. The services to be provided to
Purchaser are limited to those set forth in Exhibit A. Cybertel may change
the Rates, Terms, conditions described herein, in Exhibit A, any attachment
thereto or any subsequent rate sheet or exhibit on a (5) five-day prior
written notice. Upon receipt of such notification, Purchaser may terminate
the affected portion of this Agreement or this Agreement in entirety without
penalty or further obligation.
3. Period of Service. This Agreement shall be effective and the Parties'
obligations shall commence upon the above date and this Agreement shall
continue for a period of ___ ( ) months from such date. This Agreement will
renew automatically on a month-to-month basis after the expiration of the
initial term. If a party desires to cancel this Agreement upon the expiration
of the initial term, it shall give the other party written notice, as provided
for herein, of its intent to cancel at least thirty (30) days prior to the
expiration of the current term.
4. Billing Increments. All traffic shall be billed with an initial 30 second
minimum increment, followed by 6 second additional increments (i.e., a minimum
call length 30 seconds, with all additional usage rounded up to the nearest 6
second increment). The sole exception to this billing arrangement shall be
traffic terminating in Mexico which shall be billed in full minute increments
(i.e., a minimum call length 60 seconds, with additional usage rounded up to
the nearest full minute).
5. Billing. Cybertel shall xxxx Purchaser for Services on a monthly basis.
Bills will be sent by facsimile or overnight delivery. The xxxx shall be
deemed received by Purchaser on the date of a facsimile confirmation if sent
by facsimile or, if sent by Cybertel overnight delivery, on the date after it
is so sent. All bills are payable within seventy-two (72) hours by wire
transfer.
6. Billing Disputes. Any billing discrepancies shall be presented to
Cybertel in reasonable detail, in writing, within forty-five (45) days of the
date of the invoice in question. Such notification shall not relieve
Purchaser of the obligation to make all payments including the amounts
disputed by the due date set forth in this Agreement. Cybesrtel shall not be
obligated to consider any Purchaser notice of billing discrepancies which are
received by Cybertel more than forty-five (45) days following the date of the
invoice in question.
7. Dispute Resolution. In the event of any controversy or claim arising from
or related to this Agreement, its performance or interpretation, the parties,
in good faith, initially will attempt to resolve the dispute among themselves.
Failing such resolution, the parties may mutually agree, in writing, to submit
the matter to arbitration before the American Arbitration Association ("AAA")
at the closest to San Diego, California.
8. Termination. If payment has not been received for all charges (including
transmission charges and monthly fixed charges, if any) billed to Purchaser by
the due date described above, or any extension thereof permitted in writing at
Cybertel's option, then Cybertel shall provide purchaser with written notice
indicating its intent to terminate transmission service in part or in whole
unless Cybertel receives payment of such undisputed amounts within seven (7)
days after Purchaser receipt of written notice. Either party may terminate
this Agreement upon thirty (30) days prior written notice for failure to cure
a breach thereof.
9. No Warranties. OTHER THAN AS SPECIFICALLY SET FORTH HEREIN, CYBERTEL
MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OR
SUFFICIENCY OF THE SERVICES PROVIDED HEREUNDER AND EXPRESSLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY, DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE
OR FUNCTION.
10. Waiver of Liability. Purchaser agrees that in no event the other shall
be liable for any loss, expense or damage for (i) loss of revenue, profits
savings, business or goodwill, and (ii) exemplary, proximate, consequential,
or incidental damages and expenses of any type or nature on account of any
breach or default hereunder by the other or on account of the use or nonuse or
the services.
11. Indemnity. Purchaser agrees to indemnify and hold Cybertel and
Cybertel's directors, officers, employees, agents and advisors harmless from
and against any and all claims, demands, or actions and costs, liabilities or
losses arising out of the provision of Services by Purchaser to its
Purchasers, however such damages are occasioned, as well as any damages
arising as a result of a breach by Purchaser of this Agreement.
12. Regulations. This Agreement is made expressly subject to all present and
future valid orders and regulations of any regulatory body having jurisdiction
over the subject matter hereof and to the laws of the United States of
America, any of its states, or any foreign governmental agency having
jurisdiction. In the event this Agreement, or any of its provisions, shall be
found contrary to or in conflict with any such order, rule, regulation or law,
this Agreement shall be deemed modified to the extent necessary to comply with
any such order, rule, regulation or law and shall be modified in such a way as
is consistent with the form, intent and purpose of this Agreement.
13. No Agency. Neither party is authorized to act as an agent for, or legal
representative of, the other party and neither party shall have the authority
to assume or create any obligation on behalf of, in the name of, or binding
upon the other party.
14. Force Majeure. The parties' obligations under this Agreement are subject
to, and neither party shall be liable for, delays, failures to perform (except
the payment of money by Purchaser for services utilized hereunder), damages,
losses or destruction, or malfunction of any equipment or any consequence
thereof caused or occasioned by, or due to fire, 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 the party's reasonable control. Purchaser shall not
represent that Cybertel is responsible for the type or quality of Purchaser's
services to its customer.
15, Waiver. The failure of either party to enforce or insist upon compliance
with any of the provisions of this Agreement or the waiver thereof, in any
instance, shall not be construed as a general waiver or relinquishment of any
other provision of this Agreement.
16. Binding Effects. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns.
17. No assignment. Neither party shall voluntarily or by operation of law
assign, transfer, license, or otherwise transfer all or any part of its right,
duties or other interests in this Agreement or the proceeds thereof
(collectively, "Assignment"), without the other party's prior written consent,
which consent shall not be unreasonably withheld or delayed. Either party may
assign this Agreement to any affiliate or wholly owned subsidiary without the
consent of the other party. Either party's failure to comply with the
assignment provisions, as contained in this paragraph, shall give the other,
at its sole discretion, the option to either accept the others assignee or
terminate this Agreement. No assignment shall release the other of its
obligations hereunder.
18. Amendment. This Agreement may not be amended except by an instrument in
writing, executed by the parties. No modification or amended hereto shall be
effected by the acknowledgment or acceptance by either party of any purchaser
order, sales acknowledgment or other similar form from the other party.
19. Merger. This Agreement (including its exhibits) supersedes and merges
all prior agreements, promises, understandings, statements, representations,
warranties, indemnities and covenants and all inducements to the making of
this Agreement relied upon by either party herein, whether written or oral,
and embodies the parties' complete and entire agreement with respect to the
subject matter hereof. No statement or agreement, oral or written, made
before the execution of this Agreement shall vary or modify the written terms
hereof in any way whatsoever.
20. Interpretation. The words and phrases used herein shall have the meaning
generally understood in the telecommunications industry. This Agreement shall
be construed in accordance with its fair meaning and not for or against either
party on account of which party drafted this Agreement.
21. Third Party Beneficiaries/ Parties in Interest. This Agreement has been
made solely for the benefit of the Cybertel and Purchaser, and their
respective successors and permitted assigns. Nothing in this Agreement is
intended to confer any rights/remedies under or by reason of this Agreement on
any third party.
22. Severability. If any term or provision of this Agreement is determined
to be illegal, unenforceable, or invalid in whole or in part for any reason,
such illegal, unenforceable, or invalid provisions or part(s) thereof shall be
stricken from this Agreement and such provision shall not affect the legality,
enforceability, or validity of the remainder of this section, then the
stricken provision shall be replaced, to the extent possible, with a legal,
enforceable, and valid provision that is similar in tenor to the stricken
provisions as is legally possible.
23. Representation of Authority. Each party represents and warrants that:
(a) the signatory shown below has the authority to bind the party on whose
behalf he/she is signing to the terms of this Agreement; (ii) the execution
and delivery of this Agreement and the performance of such party's obligations
hereunder have been duly authorized; and (iii) the Agreement is a valid and
legal agreement binding on such parties and enforceable in accordance with its
terms.
24. Further Assurances. The parties shall at their own cost and expense
execute and deliver such further documents and instruments and shall take such
other actions as may be reasonably required or appropriate to carry out the
intent and purposes of this Agreement.
25. Governing Law. This Agreement shall be in all respects, governed by and
construed and enforced in accordance with the laws of the State of
California, including all matters of construction, validity and
performance. Any action to enforce or interpret the terms of this
Agreement shall be instituted and maintained in the Superior Court of the
County of San Diego, California. Purchaser hereby consents to the
jurisdiction of such court and waives any objections to such
jurisdiction.
26. 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.
27. Non-Disclosure. Disclosure of this Agreement and the terms hereof shall
be strictly limited as follows:
a. Neither party may disclose either the existence or the terms of this
Agreement (including those set forth in any Exhibits or Attachments hereto) to
anyone other than employees who have a need to know for the purposes of
implementing this Agreement. Disclosure to these employee(s) may occur only
after each employee has agreed to be bound by the terms of this paragraph.
The unauthorized disclosure of this Agreement or the terms hereof shall
constitute a material breach hereof.
b. Purchaser and Cybertel acknowledge and agree that unauthorized
disclosure would cause irreparable harm wich would not be adequately
compensated for by monetary damages. Thus, in addition to its remedies in
law, upon unauthorized disclosure the harmed path shall be entitled to
equitable relief, including without limitation a Temporary Restraining Order
(obtained ex parte) as well as permanent injunctive.
28. Notices. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing and shall be deemed to be
delivered when actually received, when sent by certified mail, return receipt
requested, reputable overnight carrier, facsimile, to the address set forth
below:
To Cybertel: To Purchaser:
Cybertel Communications Corp. ----------------------
0000 Xxxxxxxxx Xxxxxx ----------------------
Xxxxx 000 ----------------------
Xx Xxxxx, XX 00000 ----------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
CYBERTEL PURCHASER
Cybertel Communications Corp. ----------------------
By: /s/ Xxxxxxx Xxxxxxxxxxx By: /s/ [illegible]
----------------------------- ----------------------
Date: 3 March 99 Date: 3/3/99
--------------------------- ---------------------
Printed Name: Xxxxxxx Xxxxxxxxxxx Printed Name: [illegible]
Title: President Title: President
Address: 0000 Xxxxxxxxx Xxxxxx Address: 12625 High Bluff Dr.
Xxxxx 000 # 000
Xx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
