INTERNATIONAL CARRIER VOICE
SERVICE AGREEMENT
SERVICE ORDER
Customer Account Number: 1740 Service Order Number: 194001
Date of Order: 10/2/97
Customer: Axiom Communications Group Inc.
Address: 00 Xxxxx Xxxxxx
City: New York State: NY Zip: 10004
Primary Account Contact: Xxxxxxx Xxxxx Phone No: (000) 000-0000
Fax No: (000) 000-0000
Technical Contact: Xxxxxx Xxxxxxxx Phone No: ( ) Fax No: ( )
Billing Contact: Xxxx Xxxxxx Phone No: ( ) Fax No: ( )
Billing Address, if different from above:
Requested Service Commencement Date: Immediately DSI Quantity:
Anticipated Monthly Usage: $ Minimum Monthly Commitment: $
(Attached a Traffic Forecast Form) (See attached Minimum Commitment
Schedule, if applicable)
Credit Terns:
Minimum Port Usage (average): 100,000 minutes/DSI
Deficiency Surcharge: [ ] per minute Ramp-up: 2 months
Special Notes/Terms:
This International Carrier Voice Service Agreement (the "Agreement") is made and
entered into as of the date below when fully executed by and between FaciliCom
International, L.L.C.; a Delaware corporation; with its principal office at 0000
Xxx Xxxx Xxxxxx, XX, 0xx Xxxxx, Xxxxxxxxxx XX 00000 ("FCI"); and the above named
Customer.
1. The Service shall be provided for a term (the "Term") as set forth
herein, starting on the Service Commencement Date and continuing until
expiration of the Term; unless sooner terminated pr remewed om
accprdamce wotj the "Terms and Conditions" of International Carrier
Voice Service Agreement (Appendix A).
2. This order is subject to credit approval. Customer hereby accepts FCI's
initial and continuing credit approval procedures and policies and
authorizes FCI and its designees to investigate Customer credit
worthiness. All information will be held in the strictest confidence.
3. This Agreement shall inclue this Service Order and the following
Appendices, attached hereto:
A: Terms and Conditions
B: Rate Schedules
IN WITNESS WHEREOF; each of the parties hereto have caused this Agreement to be
executed by their respective officials duly authorized on the day and year first
above written
CUSTOMER: Axiiom Communications Group Inc. FACILICOM INTERNATIONAL, L.L.C.
By: /S/ Xxxxxxx Xxxxx By: /S/ Xxxxxxx Xxxx
------------------------------------- ----------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxx
Title: General Manager Title: Executive Vice President
Effective Date: October 14,1997
Sales Rep/Agent Name (print)
Xxxx Xxxx Initials M
FACILICOM INTERNATIONAL L.L.C.
International Carrier Voice Service Agreement
Appendix A. Terms and Conditions
1. PROVISION OF SERVICE
1.1 Service Order. By executing the Service Order to Which these Terms and
Conditions are attached, FCI agrees to provide, and Customer agrees to
purchase, switched International telecommunications services and other
associated services (collectively "Service"), pursuant to the Terms and
Conditions set forth in this Appendix A and in any attachments
incorporated and made a part of this Agreement.
1.2 Term of Service. This Agreement shall be effective and the parties'
obligations shall commence on the Effective Date of this Agreement as
set forth on the Service Order and shall continue for a period of one
year ("initial term") from Service Commencement Date, which is the date
that the circuits(s) are first made available to Customer for Service,
unless sooner terminated in accordance with the provisions of this
Agreement.
1.3 Automatic Renewal. Services shall be automatically renewed at
expiration of the initial term for a one (1) year period ("Subsequent
Term"), unless terminated by either party giving the other party
written notice of intent not to renew at least sixty (60) days prior to
expiration of the initial or any subsequent term. Each Subsequent Term
shall automatically renew, unless sooner terminated in accordance with
the provisions of this Agreement, for a one (1) year period upon
expiration of the preceding Subsequent Term. Each Subsequent Term that
is renewed shall be subject to such Terms and Conditions as FCI may
then be offering, or willing to offer, to potential Customers.
1.4 Circuit Availability. FCI shall use its best efforts to make the
circuits(s) available to Customer for Service within thirty (30) days
of the Effective Date of this Agreement. If FCI does not make the
circuit(s) available to Customer within (30) days of the Effective
Date, and such delay is not requested or caused by Customer, Customer
may cancel this Agreement without liability upon written notice to FCI
prior to Service Commencement Date. If Customer cancels this Agreement
or any separate Service Order to this Agreement prior to Service
Commencement Date except as provided herein, Customer will be charged
for the non-recoverable portions of expenditures or liabilities
incurred expressly on behalf of Customer by FCI. Traffic must start
within forty five (45) days of Service Commencement Date, or FCI may
cancel all circuit(s) interconnection upon five (5) days advance
written notice, without any liability or obligation whatsoever.
1.5 Interconnection. Customer is responsible for arranging and the expense
of installing and operating the interconnection between Customer's
network and the FCI network at FCI's Point of Presence in compliance
with FCI's network interface procedures. At Customer's request, FCI
will coordinate interconnection and bill Customer for installation and
operation of Interconnection. Non-usage charges include recurring and
non-recurring elements. The recurring element is a monthly
non-discriminatory charge relevant to customer's use of local serving
arrangement with local exchange company. Non-recurring elements consist
of an Installation charge of $250,000 per DS-1 plus any third party
charges which may be billed to FCI relative to Customer's interconnect
request. Third party interconnect charges billed to FCI are passed
directly on to Customer and may be subject to adjustment from time to
time. Customer's obligation to accept and pay for non-usage sensitive
charges as describe herein shall be binding.
1.6 Switchless Reseller. The Switchless Resale Customer is responsible for
direct negotiation, contracting and provisioning of service with local
exchange carrier (LEC) and/or FCI's designated switching services
provider.
1.7 FCI's Access. FCI reserves the right, but not the obligation, to make
such tests and inspections as necessary to determine that the
requirements regarding equipment and interconnection are being met in
the Installation, operation and maintenance of Customer equipment and
wiring. It is FCIs intention that such tests and Inspections will not
normally result in Service interruptions or defects. If any such test
or inspection is of the sort that it could jeopardize any service or
require the interruption of all or any portion of the Service, FCI
shall so notify Customer in writing at least four (4) business days
before such tests or inspection. FCI shall give Customer as much
advance notice of emergency tests and inspections as is practically and
reasonably possible under the circumstances.
2. PAYMENT FOR SERVICE
2.1 Rates.
2.1.1 Payment for Service, applicable to all calls received by FCI from
Customer, shall be determined by the destination and duration of the
calls at the per minute rates listed in Appendix B. FCI, at its sole
discretion and upon seven (7) days advance written notice, may modify
its rates as it deems necessary. In the event there is any legislation
affecting rates and the changes are to be implemented in less than (7)
days, then Customer shall be responsible for any additional charges
based on the changes in rates. FCI shall notify Customer promptly of
any such changes.
2.1.2 In the event FCI notifies Customer of an increase in its rates pursuant
to Section 2.1.1, Customer, upon written notice to FCI prior to the
effective date of such increase, may cancel that portion of the Service
affected without liability, except to pay for all charges due FCI at
the time of cancellation. Minimum Commitment requirements, if
applicable, shall be amended as necessary for cancellation pursuant to
this Section 2.1.2
2.2 Volume Discount Minimum Commitment. Beginning with the first full
calendar month following Service Commencement Date or other ramp-up
period as may be agreed, Customer shall maintain a monthly Volume
Discount Minimum Commitment ("Minimum Commitment") level if any is so
specified on the Service Order and/or any relevant Service Schedule.
If, in any month, Customer fails to obtain the required monthly
minimum, for any reason other than an interruption or impairment of
Service not caused, directly or indirectly by Customer, Customer shall
pay FCI the difference between the Customer's Minimum Commitment and
Customer's actual monthly invoiced amount (the "Deficiency Charge").
Such payment shall be due at the same time payment is due for Service
provided to Customer, or in the case of cancellation or termination of
this Agreement, Immediately, in an amount equal to Customer's Minimum
Commitment that would have become due for the unexpired portion of the
Term. If Minimum Commitment is in minutes, the Deficiency Charge shall
be determined by multiplying the shortfall by the average rate per
minute for the prior month. If Minimum Commitment is country-specific,
the applicable rate for each country specified shall be used in
determining minimum monthly commitment amounts.
2.3 Minimum Port Usage. Beginning with the next full calendar month
following a sixty (60) day Ramp-Up Period from Service Commencement
Date, Customer will maintain a monthly average loading of traffic per
DS-1 level interconnection as indicated on the Service Order.
2.4 Invoices. Following Service Commencement Date, FCI will bill Customer
monthly for Services rendered during the prior month. Any applicable
non-recurring and/or recurring charges not related to monthly usage
will be listed separately. Invoices will include a minimum, countries
called, number of calls, total duration of calls in minutes and amount
charged per country. Call Detail Records (CDR) will be made and
retained by FCI and will be available monthly at no charge at
Customer's request. Specialized billing formats and frequency as
Customer may request will be considered and charged on an individual
case basis.
2.5 Taxes. All charges set forth in Appendix B for the Services provided
pursuant to this Agreement are exclusive of sales, use, excise or
privilege taxes or tax-like charges, fees or similar liabilities.
Customer will pay all applicable sales, use, excise, privilege or
similar taxes, except any taxes or tax related surcharges determined by
FCI's income, net worth, franchise or property (which shall be borne
solely by FCI) (hereinafter referred to as "Taxes"). In the event that
Customer provides FCI with a direct payment permit, sale or resale
exemption certificate, sales tax exemption certificate or other
applicable exemption certificate, FCI will not invoice the taxes
covered by the exemption certificate(s). If and for so long as such
exemption certificate is applicable to the Services provided.
2.6 Present Terms
2.6.1 Due Date. Bills are due and payable upon receipt. Payments not received
within thirty days of invoice date are considered past due.
2.6.2 Late Payment. A delinquency charge (liquidated damages) of one and
one-half percent (1.5%) per month or the maximum lawful rate under
applicable state law, whichever is less, will accrue upon any unpaid
balance commencing thirty (30) days after the date of the bill.
Customer acknowledges that such delinquency charge is reasonable under
all the circumstances existing as of the date hereof. Acceptance by FCI
of any late payment or delinquency charge shall in no event constitute
a retrieval by FCI of Customer's default, nor shall such acceptance
prevent FCI from exercising any or all other rights or remedies that it
may have. Notwithstanding the foregoing, FCI shall not charge Customer
late fees on amounts disputed in good faith by Customer unless disputed
amounts resolved in favor of FCI remain unpaid pursuant to Section 2.8.
2.6.3 Collection. In the event FCI employs the services of a collection
agency or attorneys for collection of charges due under this Agreement,
Customer shall be liable for all costs of collection and legal
proceedings including reasonable attorney's fees and costs incurred by
FCI in prosecuting such proceedings and any appeals therefrom.
2.7 Manner of Payment. All payments by Customer hereunder shall be (i) made
in U.S. dollars; (ii) made by check drawn from currently available
funds; or by wire transfer, as determined by FCI; (iii) subject to a
$25.00 return check charge; (iv) duly identified as relating to the
Service subscribed to' and (v) made payable and delivered to the name
and address designated on the invoice or such other name and/or
location as FCI may direct in writing from time to time subject to the
notice requirements of Section15.
2.8 Billing Disputes.
2.8.1 If Customer in good faith disputes any portion of any FCI invoice,
Customer shall submit to FCI, within 30 days following the date of the
invoice, full payment of the undisputed portion of the invoice and
written documentation identifying and substantiating the disputed
amount. If Customer
does not report a dispute within the 30 day period, Customer shall have
waived its dispute rights for that invoice. FCI and Customer agree to
use their respective best efforts to resolve any disputes within
fifteen (15) days after FCI receives written notice of the dispute from
customer. Any disputed amounts resolved in favor of the Customer shall
be credited to the Customer's account on the next invoice following
resolution of the dispute. Any disputed amounts determined to be
payable to FCI shall be due within ten (10) days of the resolution of
the dispute.
2.8.2 Any dispute arising out of or relating to this Agreement which has not
been resolved by the good faith efforts of the parties, will be settled
by binding arbitration conducted expeditiously in accordance with the
commercial Arbitration Rules of the American Arbitration Association
("AAA Rules"), as amended by this Agreement and judgment upon the award
rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The location of the arbitration shall be Washington, D.C.
The cost of the arbitration, including the fees and expenses of the
arbitrator(s), shall be shared equally by the parties unless the
arbitration award provides otherwise. Each party shall bear the cost of
preparing and presenting its case. The arbitrator(s) are not empowered
to award damages in excess of compensatory damages and each Party
irrevocably waives any damages in excess of compensatory damages.
2.9 Allowance for Interruptions. Following Service Commencement Date, if
Customer reports an interruption of Service ("Interruption"), customer
shall receive credit for service billed for but not provided. Credit to
Customer shall not apply, however, in the event any interruption is
caused or contributed to, directly or indirectly, by any act or
omission of Customer or its customers, affiliates, agents
representatives, invitees or licensees. In addition, no credit
allowances will be made for (i) Interruptions during any period which
FCI or its agents are denied access to the premises where access lines
associated with Customer's Services are terminated, or (ii) due to the
failure of power, equipment, systems or services not provided by FCI.
For the purposes of this paragraph, an Interruption reporting period
begins when Customer reports an interruption and ends upon the earlier
to occur of (i) Customer's resumption of use of the Service, and (ii)
when Service is operative again. If Customer elects to use another
means of communication during the interruption reporting period,
Customer must pay the charges for the alternate service used.
3 SECURITY
3.1 FCI's obligation to provide Service under this Agreement is contingent
upon credit approval by FCI and Customer's acceptance of FCI's initial
and continuing credit approval procedures and policies. A cash deposit
and/or irrevocable letter of credit or other form of security in form
and amount acceptable to FCI shall be paid prior to commencement of
Service, or, if after Service Commencement Date, within 48 hours
following FCI's request. After Service Commencement, a deposit or
additional deposit may also be required in form and amount acceptable
to FCI if Customer's financial circumstances or payment history
warrants or in light of Customer's actual usage when compared to
projected usage levels upon which any initial security or assurance
requirement was based.
3.2 If Service has been canceled or discontinued for any of the reasons set
forth in this Agreement, Customer's deposit shall be applied to all
charges and other amounts then due FCI, including any late fees and
cancellation charges applicable to the Service offering received by
Customer. FCI agrees to refund the excess portion of the deposit, if
any, within (30) days following final settlement of Customer's account.
The refunding or crediting of Customer's deposit in no way relieves
Customer from complying with all terms and provisions contained in this
Agreement or from tendering payments when due.
4. SUSPENSION, TERMINATION AND REINSTITUTION OF SERVICE
4.1 Suspension of Service. FCI may suspend Service to Customer without any
liability or obligation to Customer if (a) Customer fails to make any
past due payment required hereunder within forty-eight (48) hours
following Customer's receipt of written notice of nonpayment from FCI.
Traffic limitations may be placed on Customer during notice period.;
(b) FCI suspends its provision of other Service to Customer, for any of
the reasons stated herein, pursuant to any separate Service Order by
Customer; (c) FCI is required to take emergency steps to protect
against the loss of communications services, property damage, or
personal injury; or (d) breach by Customer of any other material
obligation under this Agreement and failure to cure such breach within
ten (10) days of written notice from FCI.
4.2 Termination of Service.
4.2.1 FCI reserves the right to terminated this Agreement without liability
for any of the following; (a) Customer's failure to make any payment
required to be made hereunder within forty-eight (48) hours after
suspension of Service by FCI; (b) Customer's failure to cure any other
violation of its obligations hereunder, within ten (10) days of
receiving written notice of such violation from FCI; (c) repeated
violations by Customer of its obligations hereunder (of which Customer
has been notified in writing); (d) FCI terminates its provision of
other service to Customer, for any of the foregoing reasons, pursuant
to any separate Service Order by Customer; (e) Customer's insolvency,
corporate reorganization, arrangement with creditors, receivership,
dissolution or institution of bankruptcy proceedings by or against
Customer; (f) Customer has failed or neglected to tender any additional
or required security deposit within forty-eight (48) hours of written
notice by FCI; (g) Customer's assignment or attempted assignment of the
Agreement or any interest therein, except as permitted by Section 8
hereof, (h) a final order by a government entity with appropriate
jurisdiction that a Service or the relationship hereunder is contrary
to law or regulation; (i) in the event Customer uses the Service for
any unlawful, unauthorized or fraudulent purpose and (j) Customer's
uses is, or is expected to, adversely affect FCI's facilities or
service to other customers. In the event that FCI terminates Service
pursuant to this Section 4.2.1, Customer shall be liable for all unpaid
charges due FCI at the time of termination, including an amount equal
to Customer's Monthly Minimum Commitment, if applicable, for the
unexpired portion of the Term.
4.2.2 After Service Commencement Date. Customer may terminate this Agreement
upon sixty (60) days advance written notice, which such termination
shall not relieve Customer of the obligation to pay all charges due FCI
for services provided including an amount equal to Customer's Minimum
Commitment, if applicable, for the unexpired portion of the Term.
Customer may terminate this Agreement prior to Service Commencement
Date subject to the provisions of Section 1.4.
4.3 Reinstitution of Service. If Customer seeks reinstitution of Service
following denial of Service by FCI, Customer shall pay to FCI, prior to
the time Service is reinstated (i) all accrued and unpaid charges, and
(ii) a deposit pursuant to Section 3. If Customer fails to make the
required payments by a date determined by and acceptable to FCI,
Customer will be deemed to have canceled the Service suspended
effective as of the date of suspension. Such cancellation shall not
relieve Customer of payment of all charges due FCI for services
provided and any unexpired portion of Customer's Minimum Commitment, if
applicable.
5. WARRANTY
5.1 FCI 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. FCI MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES ABOUT THE SERVICE PROVIDED HEREUNDER,
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR IN FACT, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF MERCHANTABILTY OR FITNESS FOR A PARTICULAR
PURPOSE.
6. LIABILITY; GENERAL INDEMNITY
6.1 In no even shall either Party or its officers, directors, employees and
agents 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.
6.2 The liability of FCI 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 FCI is
limited to an amount equal to the proportionate monthly recurring
charges for the period during which service was affected subject to the
limitations set forth in this Agreement.
6.3 In the event that any third party asserts a claim or right to or in any
way arising out of the availability, use or operation of the Service or
the Service Facilities, or otherwise out of this Agreement or out of
such third party's relation to Customer or Customer's relation to FCI;
Customer shall indemnify and hold FCI and its officers, directors,
employees and agents harmless against any and all claims, losses,
demands, liabilities, costs and expenses of whatsoever nature,
including attorney's fees, relating to or in any way arising out of the
asserted claim or right.
6.4 Customer shall indemnify and hold FCI harmless from all costs,
expenses, claims or actions arising out of unauthorized use of
Customer's telephone facilities, including placement of calls through
the Customer's equipment which are transmitted or carried over the
network. FCI shall cooperate with Customer in undertaking reasonable
efforts to prevent fraudulent telephone calls. Customer shall be liable
for all charges for Service billed by FCI whether or not unauthorized
calls comprise a portion of the Service. FCI reserves the right to take
immediate action (without notice to Customer) that is reasonably
necessary to prevent fraudulent calls from taking place, including
without limitation, denying or terminating Service to or from specific
locations.
7. FORCE MAJEURE
7.1 No failure or omission by either Party to carry out or observe any of
the non-monetary Terms and Conditions of this Agreement shall give rise
to any claim against such Party or be deemed to be a breach of this
Agreement if such failure or omission arises from any cause beyond the
control of that Party. Neither party shall be liable to the other Party
for any losses or damages either direct, indirect, consequential, or
otherwise sustained by reason of any failure in or breakdown of the
communications systems or facilities herein provided for, or for any
interruption of the Service, whether caused by act of God, insurrection
or civil disorder, war or military operations, national or local
emergency, acts or omissions of any government authority or third
party, industrial disputes, fire, lightning, explosion, inclement
weather, or other causes beyond the control of either Party
8. ASSIGNMENT
8.1 This Agreement shall not be assigned or transferred by either Party
without the prior written consent of the other Party, which shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing,
either Party may, without the other's consent, make an assignment to a
successor, affiliate, subsidiary, or to an entity controlling or under
the same control as such a Party. In the event of any such assignment,
the successor shall undertake in writing to the other the performance
and liability for the obligations, duties, and interests to which it is
accountable as a succeeding party to this Agreement, and the
predecessor Party shall thereafter be relieved of such obligations,
duties, and interests except for matters arising out of events
occurring prior to the date of such undertaking.
9. GOVERNMENT APPROVALS
9.1 All agreements, covenants, undertakings and obligations herein made or
assumed by the Parties hereto are subject to the obtaining and
continuance of all necessary governmental licenses, consents, permits,
authorizations and approvals. Each Party shall use its best efforts to
obtain and to have continued in effect all such licenses, consents,
permits, authorizations, and approvals relating to such Party's
operations.
10. CONFIDENTIALITY
10.1 Since each Party may have access to the other Party's confidential,
sensitive, and/or proprietary information including, without
limitation, financial information, rates, supply and service
information, technical data and specifications, marketing information,
customer and personnel information, and dialing patters ("Proprietary
Information"), therefore, during the Term and thereafter, neither Party
shall disclose any terms of this Agreement, including pricing, or
Proprietary Information of the other Party except as required by law.
Any disclosure hereof required by legal process shall only be made
after providing the non-disclosing party with notice thereof in order
to permit the non-disclosing party to seek an appropriate protective
order of exemption. Proprietary Information shall remain the property
of the disclosing Party. A Party receiving Proprietary 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 Proprietary 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.
Because of the unique nature of Proprietary Information, a breach of
this paragraph may cause irreparable harm for which monetary damages
may be inadequate compensation. Accordingly, in addition to other
available remedies, a Party may seek injunctive relief to enforce this
paragraph.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The Parties agree that trademarks, inventions, patents, copyrights,
registered designs, service marks, trade names and all other
intellectual property shall remain in the ownership of the person or
party originating the same and nothing herein shall confer or be deemed
to confer on either Party expressly, implied or otherwise, any rights
or licenses in the intellectual property of the other.
12. AMENDMENT
12.1 This Agreement, together will all Attachments and Exhibits, may be
amended, modified or amplified only by written agreement signed by
authorized representatives of both Parties.
13. WAIVER OF TERMS
13.1 No waiver by either party of any provision of this Agreement shall be
binding unless expressly confirmed in writing. Further, any such waiver
shall relate only to such particular matter, non compliance or breach
as it expressly relates to and shall not apply to any subsequent or
other matter, non-compliance or breach.
14. GOVERNING LAW AND FORUM
14.1 The existence, validity, construction, operation and effect of this
Agreement shall be determined in accordance with and be governed by the
laws of the District of Columbia. Customer agrees that any action or
proceeding arising out of this Agreement shall be brought and
maintained in the District of Columbia, and hereby consents to the
jurisdiction of courts located in the District of Columbia.
15. NOTICES
15.1 Except as other wise provided in this Agreement, its schedules and
attachments, all notices required or permitted hereunder shall be in
writing and shall be deemed given upon delivery if dispatched by (i)
registered or certified mail, postage pre-paid, return receipt
requested (ii) by overnight courier or by hand delivery (iii) by
facsimile and confirmation by letter. Notice given by facsimile shall
be deemed given when transmitted provided that the sender shall have
received a transmission report indicating successful transmission of
all of the pages of the notice to the correct facsimile number and has
sent a confirmation copy of the notice by first-class pre-paid mail,
except that if the transmission of such facsimile does not occur on a
normal business day within normal business hours at the place to which
it is addressed, the notice shall be deemed given on the next following
business day. For these purposes business day shall ,mean any day other
than Saturday, Sunday or public holiday and "business hours" shall mean
9:00 a.m. to 5:30 p.m. in a business day. Either Party may change its
address, phone or other notice information by giving written notice in
accordance herein. Notices will be addressed to the other Party as
follows:
If to FaciliCom International, L.L.C: to FCI's principal place of
business and facsimile number, as specified in the Service Order,
Attention: Contract Administration.
If to Customer: to Customer's principal place of business and facsimile
number, as specified in the Service Order, Attention Legal Department.
16. MISCELLANEOUS
16.1 No Third Party Beneficiary. The provisions of this Agreement are for
the benefit only of the parties hereto, and no third party may seek to
enforce or benefit from those provisions.
16.2 No Partnership Or Agency Relationship. The relationship between FCI and
Customer shall not be that of partners or agents of one another, and
nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them. 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.
16.3 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of each party's successors and permitted Assignees.
16.4 Headings. The titles in the headings of paragraphs are intended for
organization and convenience only and do not apply in the
interpretation of any of the Agreement terms.
16.5 Survival of Terms. The terms and provisions contained in this Agreement
that by their sense and context are intended to survive the performance
thereof by the Parties hereto shall so survive the completion of
performance and termination of this Agreement, including, without
limitation, provisions for indemnification, confidentiality and the
making of any and all payments due hereunder.
16.6 Rule of Construction. No rule of construction requiring interpretation
against the drafting party hereof shall apply in the interpretation of
this Agreement.
17. ENTIRE AGREEMENT
17.1 This Agreement, together with all attachments incorporated herein
specifically by reference, represents the entire understanding of the
Parties with respect to the subject matter hereof and all other
agreements (written or oral) between the Parties relating to the
Service shall be superseded by this Agreement.
FaciliCom International L.L.C.
International Carrier Voice Service Agreement
Appendix A. Terms and Conditions
ADDENDUM
2.3 Addition to Minimum Port Usage.
Monthly Minimum Usage per activated DS-1 is 100,000 minutes. After a ramp up
period of two (2) months, if a DS-1 circuit experiences a minimum shortfall over
two consecutive months, FCI may provide Customer with written notice of such
fact and of FCI's intent to disconnect the under-minimum circuit if the minimum
is not attained by the month following the date the notice is received.
UNITED STATES
/
TAX EXEMPTION CERTIFICATE
THE UNDERSIGNED CLAIMS exemption from the taxes imposed on charges billed or to
be billed the undersigned for communication services in accordance with United
States Internal Revenue Code Section 4253 and any state or other codes that may
apply to the taxation of communication services.
THE UNDERSIGNED AGREES to notify FACILICOM INTERNATIONAL, L.L.C. in writing when
the bases for tax exemption indicated above changes or ceases to exist.
THE UNDERSIGNED UNDERSTANDS that the fraudulent use of this certificate will
subject all guilty parties to criminal penalties resulting in fines or
imprisonment.
Billing Name of Account Signature of Authorized Representative
Axiom Communications /S/
------------------------------- -----------------------------------
Title: General Manager
Date: 9/25/97
