WORLDCOM NETWORK SERVICES, INC.
TELECOMMUNICATIONS SERVICES AGREEMENT
(Switched Services)
This Telecommunications Service Agreement (the "TSA") is entered into as
of the 1st day of October, 1999 by and between WORLDCOM NETWORK SERVICES,
INC., a Delaware corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MCI WorldCom") and Cybertel Communications
Corp, a Nevada corporation, with its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer").
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Switched Services; Other Documents; Start of Service.
(A) Services. MCI WorldCom agrees to provide and Customer agrees to
accept and pay for switched telecommunications services and other
associated services (collectively the "Switched Services") as further
described in the "Attachments" attached hereto and incorporated herein by
reference, which describe the particular services, rates, specific terms
and other information necessary or appropriate for MCI WorldCom to
provide the Switched Services to Customer. The Switched Services
provided by MCI WorldCom are subject to (i) the terms and conditions
contained in this TSA and the Program Enrollment Terms (the "PET") which
is attached hereto and incorporated herein by reference, (ii) the rates
and discounts and other applicable terms set forth in Attachment(s)
attached hereto from time to time and incorporated herein by reference,
and (iii) each Service Request (described below) which is accepted
hereunder. The PET, as subscribed to by the parties, shall set forth the
Effective Date, the Service Term, Customer's minimum monthly commitment,
if any, and other information necessary to provide the Switched Services
under this TSA. In the event of a conflict between the terms of this
TSA, the PET, the Attachments and the Service Request(s), the following
order of precedence will prevail: (1) the PET, (2) the Attachments, (3)
this TSA, and (4) Service Request(s). This TSA, the PET, and the
applicable Attachments are sometimes collectively referred to as the
"Agreement".
(B) Service Requests. Customer's requests to initiate or cancel Switched
Services shall be described in an appropriate MCI WorldCom
Request("Service Request"). A Service Request may consist of machine
readable tapes, facsimiles or other means approved by MCI WorldCom.
Further, Service Requests shall specify all reasonable information, as
determined by MCI WorldCom, necessary or appropriate for MCI WorldCom to
provide the Switched Service(s) in question, which shall include without
limitation, the type, quantity and end point(s) (when necessary) of
circuits comprising a Service Interconnection as described in the
applicable Service Schedules, or automatic number identification ("NI")
information relevant to the Switched Service(s), the "Requested Service
Date", and charges, if any, relevant to the Switched Services described
in the Service Request.
(C) Start of Service. MCI WorldCom's obligation to provide and
Customer's obligation to accept and pay for non-usage sensitive charges
for Switched Services shall be binding to the extent provided for in this
Agreement upon the submission of an acceptable Service Request to MCI
WorldCom by Customer. Customer's obligation to pay for usage sensitive
charges for Switched Services shall commence with respect to any Switched
Service as of the date the Switched Service in question is made available
to and used by Customer ("Start of Service"), but in no event later than
"Requested Service Date" if such Switched Service is available for
Customer's use as of such Requested Service Date. Start of Service for
particular Services shall be further described in the Attachment(s)
relevant to the Switched Services in question.
2. Cancellation.
(A) Cancellation Charge. At any time after the Effective Date, Customer
may cancel this Agreement if Customer provides written notification
thereof to MCI WorldCom not less than thirty (30 days prior to the
effective date of cancellation. In such case (or in the event MCI
WorldCom terminates this Agreement as provided in Section 7), Customer
shall pay to MCI WorldCom all charges for Services provided through the
effective date of such cancellation plus a cancellation charge (the
"Cancellation Charge") equal to one hundred percent (100%) of the
Customer's commitment(s), if any, (as described in the PET) that would
have become due for the unexpired portion of the Service Term.
(B) Liquidated Damages. It is agreed that MCI WorldCom's damages in the
event Customer cancels this Agreement shall be difficult or impossible to
ascertain. The provision for a Cancellation Charge in Subsection 2(A)
above is intended, therefore, to establish liquidated damages in the
event of a cancellation and is not intended as a penalty.
(C) Cancellation Without Charge. Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel this
Agreement, as provided below, without incurring any cancellation charge
(other than payment for Services provided by MCI WorldCom up through the
effective date of cancellation) if (i) MCI WorldCom fails to provide a
network as warranted in Section 8 below; (ii) MCI WorldCom fails to
deliver call detail records promptly based on the frequency selected by
Customer (i.e., monthly, weekly or daily); or (iii) MCI WorldCom fails to
submit ANI(s) relevant to Customer's Service Requests to the applicable
local exchange companies ("LECs"0 within the time period described in
applicable Attachment(s). Provided, however, Customer must give MCI
WorldCom written notice of any such default and an opportunity to cure
such default within five (5) days of the notice. In the event MCI
WorldCom fails to cure any such default within five-day period on more
than three (3) occasions within any six (6) month period, customer may
cancel this Agreement without incurring any cancellation charge.
3. Customer's End Users.
(A) End Users. Customer will obtain, and upon MCI WorldCom's request
provide MCI WorldCom (within two (2) business days of the date of the
request), a written Letter of Agency ("LOA") acceptable to MCI WorldCom
(or with any other means if approved by the Federal Communications
Commission ("FCC"), the applicable public utility commission ("PUC") and
the applicable LEC), for each ANI indicating the consent of such end user
of Customer ("End User") to be served by Customer and transferred (by way
of change of such End User's designated presubscribed interexchange
carrier (PIC)) to the MCI WorldCom network prior to submitting a Service
Request to MCI WorldCom. Each LOA will provide, among other things, that
the End User has consented to the transfer being performed by Customer or
Customer's designee. When applicable, Customer will be responsible for
notifying its End Users, in writing (or by
any other means if approved by the FCC, the applicable PUC and the
applicable LEC) that (i) a transfer charge will be reflected on their LEC
▇▇▇▇ for effecting a change in their PIC, (ii) the entity name under
which their interstate, intrastate, local and/or operator services will
be billed (if different from Customer), and (iii) the "primary" telephone
number(s) to be used for maintenance and questions concerning their
telecommunications services and/or billing. Customer agrees to send MCI
WorldCom a copy of the documentation Customer uses to satisfy the above
requirements for Customer's confirming orders and/or for notifying End
Users regarding the transfer charge at any time in order to conform with
applicable FCC and state regulations, including without limitation, the
regulations established by the FCC with respect to verification of orders
for long distance service generated by telemarketing as promulgated in 47
C.F.R., Part 64, Subpart K, Section 64.1100 or any successor regulation(s).
(B) Transfer Charges/Disputed Transfers. Customer agrees that it is
responsible for (i) all charges incurred by MCI WorldCom to change the
PIC of End Users to the MCI WorldCom network, (ii) all charges incurred
by MCI WorldCom to change End Users back to their previous PIC arising
from disputed transfers to the MCI WorldCom network plus, at MCI
WorldCom's option, an administrative charge equal to twenty percent(20%)
of such charges, and (iii) any other damages or costs suffered by or
awards against MCI WorlCom resulting from disputed transfers.
(C) Excluded ANIs. Customer agrees to provide all ANIs to be carried on
the MCI WorldCom network prior to the provisioning of such ANIs with the
LECs. MCI WorldCom has the right to reject any ANI supplied by Customer
for any of the following reasons: (i) MCI WorldCom is not authorized to
provide or does not proved long distance services in the particular
jurisdiction in which the ANI is located, (ii) a particular ANI submitted
by Customer is not in proper form, (iii) Customer is not certified to
provide ling distance services in the jurisdiction in which the ANI is
located, (iv) Customer is in material default of this Agreement, (v)
Customer fails to cooperate with MCI WorldCom in implementing reasonable
verification processes determined by MCI WorldCom to be necessary or
appropriate in the conduct of business, (vi) such ANI is rejected by a
LEC (e.g., "PIC freezes"),j or (vii) any other circumstance reasonably
determined by MCI WorldCom which could adversely affect MCI WorldCom's
performance under this Agreement or MCI WorldCom's general ability to
transfer its other customers or other end users to the MCI Worldcom
network, including without limitation, MCI WorldCom's ability to
electronically effect PIC changes with the LECs. In the event MCI
WorldCom rejects an ANI, MCI WorldCom will notify Customer of its
decision specifically describing the rejected ANI and the reason(s) for
rejecting that ANI, and will not incur any further liability under this
Agreement with regard to that ANI. Further, any ANI previously requested
by Customer for Switched Services may be deactivated by MCI WorldCom if
no Switched Services ▇▇▇▇▇▇▇▇ relevant thereto are generated in any three
(3) consecutive calendar month/billing periods. MCI WorldCom will be
under no obligation to accept ANIs submitted by Customer within the last
full calendar month period preceding the scheduled expiration of the
Service Term.
(D) Records. Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Switched Services, including, but not
limited to, appropriate and valid documentation of each subscribing End
User's authorization to Customer to act as the End User's PIC for a
period of not less than twelve (12) months or such longer period as may
be required by applicable law, rule or regulation. Customer shall
indemnify MCI WorldCom for any and all costs, charges or expenses
incurred by MCI WorldCom arising from disputed PIC selections involving
Switched Services to be provided to Customer.
(E) Customer Service. Customer will be solely responsible for billing
its End Users and providing such End Users with customer service.
Customer agrees to notify MCI WorldCom as soon as reasonably possible in
the event an End User notifies Customer of problems associated with the
Switched Services, including without limitation, excess noise, echo, or
loss of service.
4. Customer's Responsibilities.
(A) Expedite Charges. In the event Customer requests expedited services
and/or changes to Service Requests and MCI WorlCom agrees to such
request, MCI WorldCom will pass through the charges assessed by any
supplying parteies( e.g., local access providers) for such expedited
charges and/or changes to Service Requests involved at the same rate to
Customer. MCI WorldCom may further condition its performance of such
request upon Customer's payment of such additional charges to MCI
worldCom.
(B) Fraudulent Calls. Customer shall indemnify and hold MCI WorldCom
harmless from any and all costs, expenses, damages, claims or actions
arising from fraudulent calls of any nature which may comprise a portion
of the Switched Services to the extent that the party claiming the
call(s) in question to be fraudulent is (or had been at the time of the
call) an End User of such Switched Services through Customer or an end
user of the Switched Services through Customer's distribution channels.
Customer shall not be excused from paying MCI WorldCom for Switched
Services provided to Customer or any portion thereof on the basis that
fraudulent calls comprised a corresponding portion of the Switched
Services. In the event MCI WorldCom discovers fraudulent calls being
made (or reasonable believes fraudulent calls from taking place,
including without limitation, denying Switched Services to particular
ANIs or terminating Switched Services to or from specific locations.
Provided, however, noting contained herein will impose any obligation on
MCI WorldCom to take any action with respect to fraudulent calls.
5. Charges and Payment Terms.
(A) Payment. MCI WorldCom ▇▇▇▇▇▇▇▇ for Switched Services hereunder are
made on a monthly basis (or such other basis as may be mutually agreed to
by the parties) following Start of Service. Subject to Subsection 5(C)
below, Switched Services shall be billed at the rates set forth in the
applicable Attachment(s). Customer will pay all undisputed charges
relative to each MCI WorldCom invoice for Switched Services within thirty
(30) days of the invoice date set forth on each MCI WorldCom invoice to
Customer ("Due Date"). If payment is not received by MCI WorldCom on or
before the Due Date, Customer shall also pay a late fee in the amount of
the lesser of one and one-half percent (1 1/2 %) of the unpaid balance of
the charges for Switched Services rendered per month or partial month
that such payment is late, or the maximum lawful rate under applicable
state law.
(B) Taxes. Customer acknowledges and understands that MCI WorldCom
computes all charges herein exclusive of any applicable federal, state or
local use, excise, gross receipts, sales and privilege taxes, duties,
fees or similar liabilities (other than general income or property
taxes), whether charged to or against MCI WorldCom or Customer because of
the Switched Services furnished to Customer ("Additional Charges").
Customer shall pay such Additional Charges in addition to all other
charges provided for herein. Customer will not be liable for certain
Additional Charges if Customer provides MCI WorldCom with an appropriate
exemption certificate.
(C) Modification of Charges. MCI WorldCom reserves the right to
eliminate particular Switched Services and/or modify charges for
particular Switched Services (which charge modifications shall not exceed
then0current generally available MCI WorldCom charges for comparable
services), upon not less than sixty (60) days prior notice to customer,
which notice will state the effective date for the charge modification.
In the event MCI WorldCom notifies Customer of the elimination of a
particular Switched Service and/or an increase in the charges, Customer
may terminate this Agreement without incurring a cancellation charge
(other than payment for Services provided by MCI WorldCom up through the
effective date of cancellation) only with respect to the Switched
Service(s), Customer must notify MCI WorldCom, in writing, at least
thirty (30 days prior to the effective date of the increase in charges.
In the event Customer cancels its subscription to a particular Switched
Service as described in this Subsection 5(C), MCI WorldCom and Customer
agree to negotiate in good faith concerning Customer's minimum monthly
commitment, if any, described in the PET.
(D) Billing Disputes. Notwithstanding the foregoing, amounts reasonably
disputed by Customer (along with late fees attributed to such amounts)
shall apply but shall not be due and payable for a period of sixty (60
days following the Due Date therefor, provided Customer: (i) pays all
undisputed charges on or before the Due Date, (ii) presents a written
statement and supporting documentation of any billing discrepancies to
MCI WorldCom in reasonable detail on or before the Due Date of the
invoice in question, and (iii) negotiates in good faith with MCI WorldCom
for the purpose of resolving such dispute within said sixty (60 day
period. In the event such dispute is mutually agreed upon and resolved
in favor of MCI WorldCom, Customer agrees to pay MCI WorldCom the
disputed amounts together with any applicable late fees within ten (10)
days of the resolution (the "Alternate Due Date"). In the event such
dispute is mutually agreed upon and resolved in favor of Customer,
Customer will receive a credit for the dispute within such sixty (60) day
period (unless MCI WorldCom has agreed in writing to extend such period)
all disputed amounts together with late fees shall become due and
payable, and this provision shall not be construed to prevent Customer
from pursuing any available legal remedies. MCI WorldCom shall not be
obligated to consider any Customer notice of billing discrepancies which
are received by MCI WorldCom more than sixty (60) days following the Due
Date of the Invoice in question.
6. Credit; Creditworhiness:
(A) Credit. Customer's execution of this Agreement signifies customer's
acceptance of MCI WorldCom's initial and continuing credit approval
procedures and policies. MCI WorldCom reserves the right to withhold
initiation or full implementation of any or all Switched Services under
this Agreement pending MCI WorldCom's initial satisfactory credit review
and approval thereof which may be conditioned upon terms specified by MCI
WorldCom, including, but not limited to, security for payments due
hereunder in the form of a cash deposit or other means. MCI WorldCom
reserves the right to modify its requirements,
if any, with respect to any security interest MCI WorldCom may have, to
(i) disconnect all or any portion the Switched Services being provided
hereunder and/or terminate this Agreement; (ii) withhold billing
information from Customer; and/or (iii) contact the End Users (for Whom
calls are originated and terminated solely over facilities comprising the
MCI WorldCom network) directly and ▇▇▇▇ such End Users directly until
such time as MCI WorldCom has been paid in full for the amount owed by
Customer. If Customer fails to make payment by the date stated in the
Suspension Notice and MCI WorldCom, after giving Customer five (5) days
prior written notice, terminates this Agreement as provided in this
Section 7, such termination shall not relieve Customer for payment of the
Cancellation Charge as described in Section 2 above.
8. Warranty. MCI WorldCom will use reasonable efforts under the
circumstances to maintain it overall network quality. The quality of Switched
Services provided hereunder shall be consistent with telecommunications common
carrier industry standards, government regulations and sound business
practices. MCI WORLDCOM MAKES NO OTHER WARRANTIES ABOUT THE SWITCHED SERVICES
PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. Liability; General Indemnity; Reimbursement.
(A) Limited Liability. IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF
CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY
MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER.
(B) General Indemnity. In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of the Switched Service through
Customer agrees to forever indemnify and hold MCI WorldCom, its
affiliated companies and any third-party provider or operator of
facilities employed in provision of the Switched Services harmless from
and against any and all claims, demands, suits, actions, losses, damages,
assessments or payments which those parties may assert arising out of or
relating to any defect in the Switched Services or MCI WorldCom's
provision or nonprovision of Switched Services under this Agreement.
(C) Reimbursement. Customer agrees to reimburse MCI WorldCom for all
reasonable costs and expenses incurred by MCI WorldCom due to MCI
WorldCom's direct participation (either as a party or witness) in any
administrative, regulatory or criminal proceeding concerning Customer if
MCI WorldCom's involvement in said proceeding is based solely on MCI
WorldCom's provision of Switched Services to Customer.
10. Force Majeure. If MCI WorldCom's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with causes beyond
its reasonable control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any law,
order, regulation, direction, action or request of the United States
government, or state or local governments, or of any department, agency,
commission, court, bureau, corporation or other instrumentality of any one or
more such governments, or of any civil or military authority, or by other
instrumentality of any on one more such governments, or of any civil or
military authority, or by national emergency, insurrection, riot, war, strike,
lockout or work stoppage or other labor difficulties, or supplier failure,
shortage, breach or delay, then MCI WorldCom shall be excused from such
performance on day-to-day basis to the extent of such restriction or
interference. MCI WorldCom shall use reasonable efforts under the
circumstances to avoid or remove such causes of nonperformance and shall
proceed to perform with reasonable dispatch whenever such causes are removed
or cease.
11. State Certification. Customer warrants that in all jurisdictions in which
it provides long distance services that require certification, it has obtained
the necessary certification from the appropriate governmental authority and,
if requested by MCI WorldCom, agrees to provide proof of such certification
acceptable to MCI WorldCom. In the event Customer is prohibited, either on a
temporary or permanent basis, from continuing to conduct its
telecommunications operations in a given jurisdiction, Customer shall (i)
immediately notify MCI WorldCom by facsimile, (ii) send written notice to MCI
WorldCom within twenty-four (24) hours of such prohibition, and (iii) take
immediate steps to suspend or discontinue its use of Switched Services in such
jurisdiction.
12. Interstate/lntrastate Service. Except with respect to Switched Services
specifically designated as intrastate Services or international Services, the
rates provided to Customer in the applicable Attachments are applicable only
to Switched Services if such Switched Services are used for carrying
interstate telecommunications (i.e., Switched Services subject to FCC
jurisdiction). MCI WorldCom shall not be obligated to provide Switched
Services with end points within a single state or Switched Services which
originate/terminate at points both of which are situated within a single
state. In those states where MCI WorldCom is authorized to provide intrastate
service (i.e., telecommunications transmission services subject to the
jurisdiction of state regulatory authorities), MCI WorldCom will, at its
option, provide intrastate Switched Services pursuant to applicable state
laws, regulations and applicable tariff, if any, filed by MCI WorldCom with
state regulatory authorities as required by applicable law.
13. Authorized Use of MCI WorldCom Name. Press Releases. Without MCI
WorldCom's prior written consent, Customer shall not (i) refer to itself as an
authorized representative of MCI WorldCom whenever it refers to the Switched
Services in promotional, advertising or other materials, or (ii) use MCI
WorldCom's logos, trade marks, service marks, or any variations thereof in any
of its promotional, advertising or other materials. Additionally, Customer
shall provide to MCI WorldCom for its prior review and written approval, all
promotions, advertising or other materials or activity using or displaying MCI
WorldCom's name or the Services to be provided by MCI WorldCom. In the event
MCI WorldCom fails to provide its approval such promotion, advertising or
other materials shall be deemed not approved. Customer agrees to change or
correct, at Customer's expense, any such material or activity which MCI
WorldCom, in its sole judgment, determines to be inaccurate, misleading or
otherwise objectionable for any reason. Customer is explicitly authorized to
only use the following statements in its sales literature or if in response to
an inquiry by Customer's End User. (i) "Customer utilizes the MCI WorldCom
network", (ii) "Customer utilizes MCI WorldCom's facilities", (iii) "MCI
WorldCom provides only the network facilities", and (iv) "MCI WorldCom is our
network services provider". Except as specifically provided in this Section
13, the parties further agree that any press release, advertisement or
publication generated by a party regarding this Agreement, the Services
provided hereunder or in which a party desires to mention the name of the
other party or the other party's parent or affiliated company(ies), will be
submitted to the non-publishing party for its written approval prior to
publication.
14. Notices. Notices under this Agreement shall be in writing and delivered to
the person identified below at the offices of the parties as they appear below
or as otherwise provided for by proper notice hereunder. Customer shall notify
MCI WorldCom in writing if Customer's billing addresses different than the
address shown below. The effective date for any notice under this Agreement
shall be the date of actual receipt of such notice by the appropriate party,
notwithstanding the date of mailing or transmittal via hand delivery or
facsimile.
If to MCI WorldCom: WorldCom Network Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Wholesale Services
If to Customer: Cybertel Communications Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
15. 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. A consent to waiver of or excuse for a breach or default by either
party, whether express or implied, shall not constitute a consent to, waiver
of, or excuse for any different or subsequent breach or default.
16. Partial invalidity: Government Action.
(A) Partial Invalidity If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in
connection with this Agreement shall be invalid or unenforceable under
applicable law, rule or regulation, that part shall be ineffective to
the extent of such invalidity only, without in any way affecting the
remaining parts of that provision or the remaining provisions of this
Agreement. In such event, Customer and MCI WorldCom will negotiate in
good faith with respect to any such invalid or unenforceable part to the
extent necessary to render such part valid and enforceable.
(B) Government Action Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an
affected portion of the Switched Service if any material rate or term
contained in this Agreement and relevant to the affected Switched Service
is substantially changed (to the detriment of the terminating party) or
found to be unlawful or the relationship between the parties hereunder is
found to be unlawful by order of the highest court of competent
jurisdiction to which the matter is appealed, the FCC, or other local,
state or federal government authority of c
competent jurisdiction. Provided, the 30-day notice required hereunder
may be shortened as necessary if such order goes into effect prior to
thirty (30) days.
17. Exclusive Remedies. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
18. Use of Service. Upon MCI WorldCom's acceptance of a Service Request
hereunder, MCIWorldCom will provide the Switched Services specified therein to
Customer upon condition that such Switched Services shall not be used for any
unlawful purpose. The provision of Switched Services is not intended to and
will not create a partnership or joint venture between the parties or result
in a joint communications service offering to any third parties, and MCI
WorldCom and Customer agree that this Agreement, to the extent it is subject
to FCC regulation, is an inter-carrier agreement which is not
subject to the filing requirements of Section 211(a) of the Communications Act
of 1934 (47 U.S.C. Section 211(a)) as implemented in 47 C.F.R. Section 43.51.
19. Choice of Law: Forum.
(A) Law This Agreement shall be construed under the laws of the State of
Oklahoma with out regard to choice of law principles.
(B) Forum Any legal action or proceeding with respect to this Agreement
may be brought in the Courts of the State of Oklahoma in and for the
County of Tulsa or the United States of America for the Northern District
of Oklahoma. By execution of this Customer and MCI WorldCom hereby submit
to such jurisdiction, hereby expressly waiving whatever rights may
correspond to either of them by reason of their present or future
domicile. In furtherance of the foregoing, Customer and MCI WorldCom
hereby agree to service by U.S. Mail at the notice addresses referenced
in Section 14. Such service shall be deemed effective upon the earlier of
actual receipt or seven (7) days following the date of posting.
20. Proprietarv Information.
(A) Confidential Information. The parties understand and agree that the
terms and conditions of this Agreement (but not the existence thereof),
all documents referenced herein (including invoices to Customer for
Switched Services provided hereunder), communications between the parties
regarding this Agreement or the Switched Services to be provided
hereunder (including price quotes to Customer for any services proposed
to be provided or actually provided hereunder), as well as such
information relevant to any other agreement between the parties
(collectively "Confidential Information"), are confidential as between
Customer and MCI WorldCom.
(B) Limited Disclosure. A party shall not disclose Confidential
Information (unless subject to discovery or disclosure pursuant to legal
process), to any other party other than the directors, officers, and
employees of a party or a party's agents including their respective
attorneys, consultants, brokers, lenders, insurance carriers or bona fide
prospective purchasers who have specificallv agreed in writing to
nondisclosure of the terms and conditions hereof. 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 or
exemption. Violation by a party or its agents of the foregoing provisions
shall entitle the non-disclosing party, at its option, to obtain
injunctive relief without a showing of irreparable harm or injury and
without bond.
(C) Survival of Confidentiality. The provisions of this Section 20 will
be effective as of the date of this Agreement and remain in full force
and effect for a period which will be the longer of (i) one (1) year
following the date of this Agreement, or (ii) one (1) year from the
termination or expiration of all Services hereunder.
21. Successors and Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that Customer of the parties shall not assign or
transfer its rights or obligations under this Agreement without the prior
written consent of MCI WorldCom, which consent shall not be unreasonably
withheld or delayed, and further provided that any assignment or transfer
without such consent shall be void.
22. General.
(A) 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 and the making of any and all
payments due hereunder.
(B) Headings. Descriptive headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
(C) Industry Terms. Words having well-known technical or trade meanings
shall be so construed, and all listings of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar
to those listed, as the context reasonably requires.
(D) Rule of Construction. No rule of construction requiring
interpretation against the drafting party hereof shall apply. In the
interpretation of this Agreement.
23. Entire Agreement. This Agreement consists of (i) all the terms and
conditions contained herein, and (ii) all documents incorporated herein
specifically by reference. This Agreement constitutes the complete and
exclusive statement of the understandings between the parties and supersedes
all prior and contemporaneous proposals and agreements (oral or written)
between the parties relating to the Switched Services provided hereunder. No
subsequent agreement between the parties concerning the Switched Services
(including further Attachments) shall be effective or binding unless it is
made in writing and signed by Customer and MCI WorldCom.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement (Switched Services) as of the dates set forth below which
Agreement will be effective as described in the PET attached hereto.
WORLDCOM NETWORK SERVICES, INC. Cybertel
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Signature) (Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Print Name) (Print Name)
Senior V.P.
------------------------------ --------------------------
(Title) (Title)
10/1/99
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(Date) (Date)
MCI WORLDCOM NETWORK SERVICES, INC.
AMENDMENT NO. 1
This Amendment No. 1 is made this 10th day of November , 1999, by and
between Cybertel Communications, Inc. ("Customer") and MCI WORLDCOM Network
Services, Inc. (successor-in-interest to WorldCom Network Services, Inc.)
("MCI WorldCom"), to those certain Program Enrollment Terms (the "PET"), to
the applicable Attachment(s) (the "Attachment(s)"), and to that certain
Switched Services Telecommunications Services Agreement and more particularly
described as TSA#CCC-991006 (the "TSA"), made by and between Customer and MCI
WorldCom dated October 10 1999. In the event of any conflict between the
terms of the TSA, the Attachment(s), or the PET and the terms of this
Amendment No. 1, the terms of this Amendment No. 1 shall control. The TSA
along with the PET, the Attachment(s) attached to the TSA, and this Amendment
No. 1 shall collectively be referred to as the "Agreement".
The parties agree for good and valuable consideration, intending legally
to be bound, as follows:
A. SERVICE TERM. The parties agree to substitute Section 1 of the PET to
read in its entirety as follows:
1. SERVICE TERM: This Agreement shall commence as of October 6, 1999
(the "Effective Date"), and shall continue through and include
August 1, 2003 (the "Service Term"). Upon expiration of the Service
Term, the Switched Services in question will continue to be provided
pursuant to the same terms and conditions as are then in effect
(including without limitation, the applicable rates, discounts and
commitments, if any), subject to termination by either party upon
thirty (30)days prior written notice to the other party.
B. CUSTOMER'S MINIMUM REVENUE COMMITMENT. Commencing with the August, 2000
billing period (i.e., September, 2000 invoice) and continuing through the
end of the Service Term (including any extensions thereto) (the
"Commitment Period"), Customer agrees to maintain, on a take-or-pay
basis, Monthly Revenue (as defined in Section 2 of the PET) of at least
$1 ,000,000 ("Customer's Minimum Revenue Commitment").
C. DEFICIENCY CHARGE: In the event Customer does not maintain Customer's
Minimum Revenue Commitment in any month during the Commitment Period
(regardless of whether Customer has commenced using any or all of the
Switched Services described herein), then for those month(s) only,
Customer will pay MCI WorldCom, in addition to charges due for Switched
Services provided to Customer, the difference between Customer's Minimum
Revenue Commitment and Customer's actual Monthly Revenue (as described in
Section 2 of the PET) (the "Deficiency Charge"). The Deficiency Charge
will be due at the same time payment is due for Switched
Services provided to Customer for the billing period in which the
Deficiency Charge arises, or immediately in an amount equal to Customer's
Minimum Revenue Commitment for the unexpired portion of the Service Term,
if MCI WorldCom terminates this Agreement based on Customer's default or
if Customer terminates this Agreement pursuant to Section 2(A) of the
TSA. It is agreed that MCI WorldCom's damages in the event Customer fails
to maintain Customer's Minimum Revenue Commitment shall be difficult or
impossible to ascertain. The provision for a Deficiency Charge in this
Paragraph C is intended, therefore, to establish liquidated damages in
the event Customer fails to maintain Customer's Minimum Revenue
Commitment and is not intended as a penalty.
D. SPECIAL RATES:
(A) Notwithstanding anything to the contrary contained in the applicable
Attachments attached to the TSA, commencing as of November 1, 1999 and
continuing through the end of the Service Term, with respect to CLASSIC
2000 SWITCHLESS TOLL FREE Service and CLASSIC 2000 SWITCHLESS 1+ Service,
Customer will receive the special rates (the "Special Rates") shown in
Subparts (i) and (ii) below. The Special Rates contained in Subpart (ii)
below will not be subject to the applicable discount percentage set
forth in the applicable Attachment(s) and Paragraph E below. All other
rates will be as set forth in the applicable Attachments.
(i) CLASSIC 2000 SWITCHLESS TOLL FREE Service and CLASSIC 2000 SWITCHLESS
1+ Service - Customer's Interstate rate per minute for calls within the
48 contiguous United States will be $0006250
(ii) CLASSIC 2000 SWITCHLESS TOLL FREE Service and CLASSIC 2000
SWITCHLESS 1+ Service - Customer's Intrastate rate per minute for calls
within the following states will be the respective rates set forth below.
STATE RATE
Texas $0.1085
California $0.0390
(B) Notwithstanding anything to the contrary contained in the TSA, MCI
WorldCom reserves the right to modify the Special Rates described in
Subsection (A) above (which charge modifications shall not exceed
then-current generally available MCI WorldCom charges for comparable
services), upon not less than fifteen (15) calendar days' prior notice to
Customer (facsimile being acceptable), which notice will state the
effective date for the charge modification.
E. SPECIAL DISCOUNT" Notwithstanding anything to the contrary contained in
the Attachment for CLASSIC 2000 CARRIER TERMINATION Service, the
Attachment for CLASSIC 2000 SWITCHLESS/END USER DEDICATED Services, and
the Attachment for CLASSIC 2000 CARRIER ORIGINATION Service attached to
the TSA, commencing as of November 1, 1999 and continuing through the end
of the Service Term (including)
any applicable extensions hereto), Customers discount percentage for
CLASSIC 2000 CARRIER TERMINATION Service, CLASSIC 2000 SWITCHLESS/END
USER DEDICATED Services, and CLASSIC 2000 CARRIER ORIGINATION Service
(the "Special Discount") will be ten percent (10%).
F. OTHER TERMS AND CONDITIONS. Except as specifically amended or modified
herein, the terms and conditions of the Agreement will remain in full
force and effect throughout the Service Term and any extensions thereof.
IN WITNESS WHEREOF, the parties have entered into this Amendement No. 1
on the date first written above.
MCI WORLDCOM NETWORK CYBERTEL COMMUNICATIONS, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Signature) (Signature)
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Print Name) (Print Name)
Wholesale Account Manager Senior Vice President
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(Title) (Title)
11-29-99 11/10/99
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(Date) (Date)
