TELECOMMUNICATIONS SERVICE AGREEMENT
This Agreement is made this on the date below by and between INTERNATIONAL
TELEPHONE & ELECTRONICS, LLC ("INTELECT"), a Nevada Limited Liability
Company, with its principal offices located at 0000 Xxxxxxxxx Xxxxxx, Xx
Xxxxx, XX 00000 and GTC TELECOM ("CUSTOMER) a Nevada Corporation.
1. EXHIBITS Exhibit "A" is hereby incorporated by reference as though
fully set forth herein.
2. SERVICE COMMENCEMENT DATE/ PERIOD OF SERVICE/ INITIAL TERM This
Agreement shall be effective and the parties' obligations shall commence upon
the date of execution by the parties, and continue in effect (subject to
rights of termination contained herein) for a period of twelve (12)
months from such date provided for in Exhibit "A". This twelve (12)
month period shall constitute the Initial Term. This Agreement will be
automatically renewed on a month-to-month basis after the expiration of
the Initial Term. Either party may cancel this Agreement at the end of
the Initial Term, or any subsequent term, by giving the other party
written notice of its intent to cancel at least thirty (30) days prior
to such cancellation date.
3. CANCELLATION/ MODIFICATION In the event that INTELECT'S
agreement with its underlying providers ("CARRIER") is canceled or terminated
for any reason, neither CUSTOMER nor INTELECT will be liable for any commitments
or penalties. This Agreement may be modified only with the mutual
written agreement between the parties and shall not be deemed effective
unless the parties execute the Service Schedule (Exhibit "A").
4. SECURITY/DEPOSITS As a condition precedent to INTELECT'S obligations to
the CARRIER and to ensure the prompt payments of sums due hereunder,
CUSTOMER will provide security in the amount specified in Exhibit "A".
At termination or earlier in the event that funds are owed which do not
exceed the security deposit, then CUSTOMER shall forfeit whatever
portion of the security deposit is necessary to fulfill such shortage.
In the event that there is no shortfall, the security deposit shall be
returned within thirty (30) days of contract termination or at the time
there has been a complete and final reconciliation of CUSTOMER's
account, whichever occurs later.
5. BILLING AND PAYMENT. Weekly deposits shall be made by CUSTOMER to
INTELECT without reduction or offset in the amount equal to the weekly
xxxx presented to CUSTOMER by INTELECT, for use of Service, plus
applicable taxes, if any. Payments shall be wire transferred to
INTELECT'S designated account, identified hereafter, on a weekly basis
within three (3) business days (72 hours) of the receipt of invoice set
forth on each faxed summary invoice. Formal invoices with CDR records
will be forwarded to CUSTOMER weekly. If CUSTOMER fails to pay any
invoice within the designated time period, INTELECT shall be entitled to
immediately deduct and retain the amount of the invoice or balance owed
on the invoice from CUSTOMER's security deposit. Such failure to pay
shall be considered an act of default hereunder.
6. BILLING DISPUTES If CUSTOMER is not in agreement with INTELECT'S
weekly invoice, within fifteen (15) days thereafter CUSTOMER may notify
INTELECT of the disputed amount when it submits such dispute in writing
and provides documentation to support such dispute (via fax or mail);
provided however that payment of the disputed amount shall be paid in
its entirety pending the outcome of the dispute resolution process
identified herein. Any such disputes will not interfere in any way with
payments for subsequent weekly xxxxxxxx. INTELECT shall resolve the
dispute in writing within fifteen (15) days of receipt of CUSTOMER's
documentation and will determine whether any billing adjustment should
be made to CUSTOMER's account. Any amount, which is determined to be in
error, will be credited against the next periodic invoice. Such request
for adjustment shall not be cause for delay or reduction in payment of
the balance due on any current periodic invoice.
7. LATE PAYMENT A delinquency charge (liquidated damages) of one and
one-half per cent (1.5%) per month or the maximum lawful rate under
applicable state law will accrue upon any unpaid balance commencing
after the due date of the billing. Acceptance by INTELECT of any late
payment or delinquency charge shall in no event constitute a waiver by
INTELECT of CUSTOMER'S default, nor shall such acceptance prevent
INTELECT from exercising any or all other rights or remedies that it may
have.
8. FRAUDULENT CALLS CUSTOMER shall indemnify and hold INTELECT harmless from
all costs, expenses, claims or actions arising from fraudulent calls of
any nature which may comprise a portion of the Services to the extent
that the party claiming the calls(s) in question to be fraudulent is (or
had been at the time of the call) an End User of the Services through
CUSTOMER or and End User of the Service through CUSTOMER's distribution
channels. CUSTOMER shall not be excused from paying INTELECT for
Services provided to CUSTOMER or any portion thereof on the basis that
fraudulent calls comprised a corresponding portion of the Services.
9. LICENSES AND STATE CERTIFICATIONS CUSTOMER warrants that in all
jurisdictions in which it provides long distance services that require
licensing, registration or certification, it has obtained the necessary
authority from the appropriate governmental authority.
10. TAX EXEMPTION / TAXES CUSTOMER will provide INTELECT upon execution of
the Agreement with a valid tax exemption form to exempt CUSTOMER, under
applicable law, from taxes that would otherwise be paid by CUSTOMER,
INTELECT will invoice CUSTOMER for taxes that are not covered by tax
exemption certificate properly filed with INTELECT. CUSTOMER
acknowledges and understands that all charges stated in this Agreement
are computed by INTELECT exclusive of any applicable use, excise, gross
receipts, sales and privilege taxes, duties fees or other taxes or
similar liabilities (other than general income or property taxes),
whether charged to or against INTELECT or CUSTOMER because of the
Service furnished to CUSTOMER ("Additional Charges"). Such Additional
Charges shall be paid by CUSTOMER in addition to all other charges
provided for herein. Any tax, levy, or other tax liability arising out
of the sale of any product or Service by CUSTOMER shall be collected and
paid to INTELECT or to any governmental authority directed by CUSTOMER,
and/or its customer/dealers in a timely manner.
11. TERMINATION / SUSPENSION OF SERVICE / REINSTITUTION OF SERVICE If
payment or deposits have not been satisfied as set forth in paragraph
six (6) for all charges (including transmission charges, service charges
and monthly fixed charges, if any) billed to CUSTOMER, then INTELECT may
and within ten (10) business days prior written notice to CUSTOMER,
suspend the telecommunications products and Service provided hereunder
in part or in whole and begin to terminate as provided herein. Traffic
limitations may be placed on CUSTOMER during this notice period.
INTELECT may suspend Service if it is required to take emergency steps
to protect against the loss of communications service, property damage,
or personal injury, or if a breach of any provision herein occurs.
INTELECT may also terminate Service and terminate if;
a) CUSTOMER fails to cure any violation of its obligations hereunder within
ten (10) days of receiving a notice of such violation from INTELECT
or In the event of repeated violations by CUSTOMER of its obligations
hereunder (of which CUSTOMER has been notified and had an opportunity
to cure).
b) Immediately upon written notice if CUSTOMER should become insolvent or
files for bankruptcy.
c) A final order by a government entity with appropriate jurisdiction is
entered which provides that the relationship hereunder is contrary to
law or regulation.
d) There is a breach of any provision herein not otherwise referred to in
this paragraph.
e) If regulatory action by the FCC or a foreign government agency prevents
INTELECT or its carriers from meeting the monthly commitment INTELECT
shall waive under-utilization charges otherwise applicable to the
months during which such regulatory action is in effect.
f) If INTELECT or the carrier detects the use of "polling"
technique by CUSTOMER for signaling, setup or completion of
calls, INTELECT may subject to and without limitation upon
the Tariff, block calls, without effect of the utilization
schedule.
g) INTELECT chooses to refuse service to callback providers.
h) If any action or ruling by the FCC, Carriers or foreign PTT
prevents or impedes INTELECT from performing any material
obligation in this Agreement INTELECT, may at its option and
upon prior thirty (30) days written notice to CUSTOMER,
terminate this Agreement with regard to the affected service
portion herein without penalty or liability. Any action or
ruling by the FCC, Carrier Service provider or foreign PTT
that prevents or effects INTELECT'S ability to provide
services shall not be considered a breach of this Agreement.
In addition, INTELECT'S action resulting from the FCC,
Carrier Service provider's blocking or interrupting
INTELECT'S service, or threatening to do so, shall not be
considered a breach of this Agreement.
i) Upon termination or dispute, INTELECT will have an additional
thirty (30) days to complete a full and final accounting of
CUSTOMER's charges. INTELECT reserves the right to
retroactively adjust billing within thirty (30) days of
original billing date to reflect carrier(s) penalties and
billing/reconciliation. If CUSTOMER seeks reinstitution of
Service following denial of Service by INTELECT, CUSTOMER
shall forward to INTELECT, prior to the time Service is
reinstituted (I) all accrued and unpaid charges and (ii) all
LOC deposits as directed herein. INTELECT shall be entitled
to collect reasonable legal fees and all costs incurred by
INTELECT in the collection of any unpaid amount whether or
not suit is instituted.
12. MODIFICATION OF PRICE INTELECT reserves the right to change any Service
price charged to CUSTOMER upon seven (7) days written notice. If
INTELECT does change the price to CUSTOMER, CUSTOMER has thirty (30)
days in which to cancel the affected portion of Service covered by this
Agreement. If CUSTOMER has not canceled within thirty (30) days, then
CUSTOMER is obligated to comply with all conditions set forth in this
Agreement and to pay the modified price.
13. SEVERABILITY If any term or provision of the Agreement is determined to be
illegal, unenforceable, or invalid in whole or in part for any reason,
such illegal, unenforceable or invalid provision 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. 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 provision as is legally possible.
14. CONFIDENTIALITY/NON CIRCUMVENT The parties understand and agree that the
terms and conditions of this Agreement, all documents referenced
(including invoices to CUSTOMER for Service provided herein),
communications between the parties regarding this Agreement of the
Service to be provided herein (including price quotes to CUSTOMER for
any Service proposed to be provided or actually provided) and all
information regarding the customers of INTELECT, as well as such
information relevant to any other agreement between the parties
(collectively "Confidential Information"), are confidential as between
CUSTOMER and INTELECT. INTELECT and CUSTOMER and affiliated companies
and personnel shall maintain confidentially regarding the terms of this
Agreement and all technical knowledge obtained through this relationship
over the course of the Agreement and this requirement to maintain
confidentiality shall remain in full force and effect for a period equal
to the longer of (I) one (1) year following the effective date of this
Agreement; or (ii) one (1) year following the termination of all Service
hereunder.
15. HOLD HARMLESS Both INTELECT and CUSTOMER will hold each other harmless for
any expenses incurred with this transaction until Services have been
provided by INTELECT. CUSTOMER shall indemnify and hold harmless
INTELECT, and its agents and brokers from any loss, cost, damage,
expense, or liability; including, without limitation, court costs and
reasonable attorney's fees arising out of, in whole or in part, directly
or indirectly, the installation, hook-up, mistakes, accidents, errors,
omissions, interruptions, or defects in transmission, or delays,
including those which may be caused by regulatory or judicial
authorities, maintenance, service or trouble-shooting of the
transmission Services described in this Agreement. INTELECT MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
TELECOMMUNICATION
PRODUCTS AND SERVICES PROVIDED HEREUNDER AND EXPRESSLY
DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY, DESCRIPTION OR FITNESS FOR ANY
PARTICULAR
PURPOSE OR FUNCTION. As a material inducement of INTELECT to supply the
Services hereunder at prices stated, purchaser agrees that INTELECT and
INTELECT'S agents and Service INTELECT shall in no event be liable for
any loss, expense or damage for (i) loss of revenue, profit, business or
goodwill, and/or (ii) special, exemplary, proximate, consequential or
incidental damages and expenses of any type or nature on account of any
breach or default hereunder by INTELECT, or on account of the use or
non-use of the telecommunications products and Services, or due to
interruption or termination of such telecommunications products and
Services for any reason unless due to willful misconduct of INTELECT.
16. 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 CUSTOMER), 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 for
supplies, unavailability of transportation, acts or omissions of third
parties, or any other cause beyond the party's reasonable control. The
obligations of INTELECT to provide the telecommunications products and
Services under the terms of this Agreement are subject to and contingent
on the continuation of INTELECT'S agreements with its Service providers
to provide the telecommunication products and Services described herein
at the rates and on the same or similar conditions at which such Service
providers are currently providing or offering to provide
telecommunications products or Services to INTELECT and its customers.
Any significant changes in such agreements or termination thereof which
make it impractical for INTELECT in its sole discretion to continue to
provide such telecommunications products and Services at current rates
and conditions shall relieve INTELECT of its obligations and all
liability under this Agreement.
17. REGULATION This Agreement is made expressly subject to all present and
future valid orders and regulations of any regulatory body having
jurisdiction of 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
18. 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, or in the
names of, or binding upon the other party. Nothing in this Agreement
shall be construed to make the parties partners or joint venturers of
each other.
19. ASSIGNMENT / THIRD PARTY BENEFICIARIES/PARTIES IN INTEREST No party to
this Agreement may assign its rights or delegate its obligations under
this Agreement without the express written consent of the other parties,
except that INTELECT may assign this Agreement, without prior consent,
to any parent, subsidiary or affiliate or to any person, firm or
corporation which shall control, be under the control of or be under the
common control with INTELECT or any corporation into which INTELECT may
be merged or consolidated or which purchases all or substantially all of
INTELECT'S assets. This Agreement has been made and is made solely for
the benefit of INTELECT and CUSTOMER 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.
20. 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 State of California.
CUSTOMER hereby consents to the jurisdiction of such court and waives
any objections to such jurisdiction. In any action or proceeding
arising out of this Agreement the party prevailing in such action shall
be entitled to recover its reasonable attorneys' fees and costs. The
parties agree to utilize the rules covered by the Expedited Dispute
resolution procedures in effect under the American Arbitration
Association as they are applicable to the accelerated resolution and
determination.
21. REPRESENTATION OF AUTHORITY Each party represents and warrants to the other
that the execution and delivery of this Agreement and the performance of
such party's obligations hereunder have been duly authorized and that
the Agreement is a valid and legal agreement binding on such parties and
enforceable in accordance with its terms.
22. NO WAIVER No term or provision of this Agreement shall be deemed waived and
no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have
waived or consented. No consent by any party to, or waiver of, a breach
or default by the other, whether express or implied, shall constitute a
consent to, waiver of, or excuse for any different or subsequent breach
or default.
23. BINDING EFFECT / TIME IS OF THE ESSENCE / SIGNATURES This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. Neither party shall assign,
delegate or transfer any of its rights or obligations hereunder without
the prior written consent of the other party. Time is of the essence in
the performance of each party's obligations under this Agreement.
Facsimile signatures are as valid as original.
IN WITNESS WHEREOF, the parties hereto above caused this Agreement to be
executed by their duly authorized representatives effective as of the date
below.
Dated:
CUSTOMER: INTELECT:
/s/ Xxxx Xxxxxx /s/
SIGNATURE DATE SIGNATURE DATE
Exhibit "A"
INTERNATIONAL RATE SCHEDULE
DESTINATION / TERMINATION RATE PER MINUTE
SEE ATTACHED RATE SHEET INCORPORATED BY
REFERENCE HEREIN
THE PARTIES AGREE:
1. Security Amount: $5,000.
2. Failure to remit surety as required will render this Agreement null
and void.
3. Service is FOB at the Point Of Presence (POP) designated by Intelect.
4. INTELECT is not responsible for any equipment costs, LEC or CAP local
loop or back-haul charges.
5. A test circuit may be established at CUSTOMERS sole expense.
6. Service for individual countries depend on capacity and availability
at the time of receipt of required deposit by Intelect.
7. Circuits will be activated by Intelect as availability and capacity
permit.
8. The initial billing increment per call will be 30 / 6 seconds, except
for Mexico.
Date:
CUSTOMER: INTELECT:
/s/ Xxxx Xxxxxx /s/
SIGNATURE SIGNATURE
