EXHIBIT 10.27
WorldCom REBILLER SERVICE AGREEMENT
This Agreement is made by and between WorldCom Inc. ("WorldCom"),
located at 515 East Amite, Jackson Mississippi 3920 1-2702 and Financial
Intranet, Inc.("Customer") with its principal office at 00 Xxxxx Xxxxxx, Xxxxx
000, Xxx Xxxx, Xxx Xxxx 00000. In consideration of the mutual promises and
covenants set forth in this Agreement, the parties agree as follows:
1. Service:
1.1 WorldCom will provide its WorldOne(Service Xxxx) Service, (the
"Service") to Customer pursuant to WorldCom Inc. Tariff FCC No. I and
No. 2 and applicable state tariffs, all as may be amended from time to
time (the "Tariffs"). All of the terms and conditions of the Tariffs now
or hereafter in effect are incorporated in this Agreement. In the event
that any provision set forth in this Agreement conflicts with the terms
and conditions of any of the Tariffs, the provision set forth in this
Agreement will govern.
2. Term: Termination: Start of Service:
2.1 Except as provided below, the term of this Agreement will commence on
the Effective Date, as defined in Section 3.3 below, and terminate
Thirty-Six (36) months thereafter (the "Term"). Thereafter, the Term
will continue on a month-to-month basis until this Agreement is
terminated by either party on at least thirty (30) days prior written
notice to the other party.
2.2 Notwithstanding the Term as defined in paragraph 2.1 of this Agreement,
WorldCom may at any time and in its sole and absolute discretion
terminate this Agreement, effective immediately if:
2.2.1 Customer fails on three (3) separate occasions to act as
WorldCom requests after making a misrepresentation to WorldCom
or to an End User;
2.2.2 Customer becomes insolvent, files a petition in bankruptcy or
makes an assignment for the benefit of creditors;
2.2.3 Customer applies for or consents to the appointment of a trustee
or receiver, or a trustee or receiver is appointed for either
party; or
and (ii) if Customer does not have an existing service agreement with
WorldCom, the "Effective Date" will be the date this Agreement has been
fully executed by both parties and the Credit Review has been completed.
4. Minimum Usage Commitments:
4.1 For purposes of this Agreement, Customer's Minimum Commitment, as
defined in Section 4.2 below, will consist of net revenues for Service
after discounts have been applied.
4.2 Commencing with the billing cycle six (6) months after the Effective
Date and continuing throughout the remainder of the Term, or any
extension thereof, Customer agrees to maintain at least $1,000,000 in
monthly revenue for Service provided hereunder ("Customer's Minimum
Commitment"). In the event Customer does not maintain Customer's Minimum
Commitment in the months indicated, then for those month(s) only,
Customer will pay WorldCom the difference between Customer's Minimum
Commitment and Customer's actual charges for the month(s) in question
(the "Deficiency Charge"). The Deficiency Charge will be due at the same
time payment is due for Service provided to Customer, or immediately in
an amount equal to Customer's Minimum Commitment for the unexpired
portion of the Term, if WorldCom terminates the Agreement based on
Customer's default.
5. Billing and Payment of Charges:
5.1 Customer agrees that it is responsible for (i) all charges incurred by
WorldCom to change the PLC of End Users to the WorldCom network, (ii)
all charges incurred by WorldCom to change End Users back to their
previous PLC arising from disputed transfers to the WorldCom network
plus an administrative charge equal to twenty percent (20%) of such
charges, and (iii) any other damages suffered by or awards against
WorldCom resulting from disputed transfers . WorldCom will have no
obligation to resolve a dispute involving a PLC Charge.
5.2 WorldCom will xxxx Customer for the Service, PLC Charges and other
amounts on a monthly basis. Customer will pay all charges billed by
WorldCom within thirty (30) days after the date of the invoice. Customer
will pay for such charges by certified check, wire transfer, cash,
company check, or other instrument or method deemed acceptable by
WorldCom.
5.3 Customer's obligation to pay all undisputed charges billed by WorldCom
is absolute and unconditional under any and all circumstances.
5.4 Customer will provide WorldCom with all necessary tax exemption
certificates in a form acceptable to the applicable taxing authority or
pay all necessary taxes at such time as such taxes become due.
5.5 Customer agrees that WorldCom's invoices are the official billing
instrument under the terms and conditions of this Agreement and that
Customer will remit payment based upon WorldCom's calculation of minutes
of usage. Customer further agrees that WorldCom is not obligated to
process routine monthly credits, and that the mere failure to match call
records with Customer's billing system is not sufficient cause to
justify WorldCom' s issuances of credits. In the event Customer
reasonably believes that a discrepancy exists in any WorldCom invoice,
Customer will provide WorldCom with detailed documentation of same which
precisely specifies the nature of the perceived discrepancy. In the
event Customer disputes a charge within an invoice. Customer shall
promptly pay all invoiced charges and notify WorldCom in writing of the
amount of and the reason for any dispute. Customer shall notify WorldCom
within forty-five (45) days of the invoice of any disputed charges.
WorldCom and Customer agree to make reasonable efforts to resolve such
disputes in a timely manner. II' WorldCom and Customer fail to resolve
the disputed amount within ninety (90) days of the due date~ the
disputed amount shall be treated as having been due on the original due
date. if Customer initiates a billing dispute as provided above,
Customer agrees to allow WorldCom complete access to Customer's switches
and billing records, provided such access does not disrupt Customer's
normal course of business, and further agrees to joint tests with
WorldCom.
6. Activation of ANIs: End User Traffic Profile:
6.1 Start of Service WorldCom's obligation to provide and Customer's
obligation to accept and pay for non-usage sensitive charges (i.e.,
installation charges or other such charges not associated with
per-minute rates) for Service shall be binding to the extent provided
for in this Agreement upon the submission of an acceptable Service
Request to WorldCom by Customer. Customer's obligation to pay for usage
sensitive charges for Services shall commence with respect to any
Service as of the earlier of (i) the "Requested Service Date" set forth
in each Service Request, or (ii) the date the Service in question is
made available to Customer and used ("Start of Service")
6.2 Service Requests Customer's requests to initiate or cancel Services
shall be described in an appropriate WorldCom Service Request ("Service
Requests"V Service Requests may consist of machine readable tapes,
facsimiles or other means approved~ by WorldCom. Further, Service
Requests shall specify all reasonable information, as determined by
WorldCom, necessary or appropriate for WorldCom to provide the
Service(s) in question, which shall include without limitation, the
type, quantity an~ end point(s) (when necessary) of circuits comprising
a Service Interconnection~n, cr automatic number identification ("ANI")
information relevant to the Service(s), the
Requested Service Date, and charges, if any, relevant to the Services
described in the Service Request. After WorldCom's receipt and
verification of a valid Service Request for Service requiring a change
in the primary interexchange carrier ("PlC"), WorldCom agrees to (i)
submit the ANI(s) relevant to such Service Requests to the following
local exchange carriers ("LECs") (with which WorldCom currently has
electronic interface capabilities) within ten (10) days: Ameritech, Xxxx
Atlantic, BellSouth, Nynex, Pacific Xxxx, Southwestern Xxxx, US West,
GTE and United, and (ii) submit the ANI(s) relevant to such Service
Requests to those LECs with which WorldCom does not have electronic
interface capabilities within a reasonable time.
6.3 During the Term, Customer will not make a Submission that contains
nonconforming ANIs and/or LEC-rejected ANIs. Customer will pay to
WorldCom the sum of twenty-five cents ($.25) for each AIN in a
Submission that is rejected for any reason by either WorldCom or LEC.
6.4 Customer will not transmit a Service activation or Service termination
order to a LEC. Customer will exercise reasonable business efforts to
ensure that no End User transmits such an order.
6.5 EXCEPT AS PROVIDED OTHERWISE IN THIS AGREEMENT, WORLDCOM MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO ITS ABILITIES TO PROCESS SERVICE
ACTIVATION SUBMISSIONS. WORLDCOM WILL EXERCISE REASONABLE BUSINESS
EFFORTS TO PROCESS SUCH SUBMISSIONS IN A TIMELY MANNER.
6.6 Before Customer's initial order for Service, Customer shall provide
WorldCom with a forecast regarding the number of minutes expected to be
terminated or originated in various LATAs and/or Tandems, so as to
enable WorldCom to configure optimum network arrangements. In the event
Customer's Service traffic volumes result in a lower than industry
standard completion rate or otherwise adversely affect the WorldCom
network, WorldCom reserves the right to block the source of such adverse
traffic at any time. Customer will provide WorldCom with additional
forecasts from time to time upon WorldCom's request which shall not be
more frequent than once every three (3) months.
7.0 Customer's End Users.
7.1 Customer will obtain and upon WorldCom's request provide WorldCom
(within two (2) business days of the date of the request) a written
Letter of Agency ("LOA') acceptable to WorldCom [or with any other means
approved by the 'Federal Communications Commission ("FCC")], for each
ANI indicating the consent of the end users of Customer ("End Users") to
be served by Customer and transferred (by way of change of such End
User's designated PlC) to the WorldCom network prior to
order processing. Each LOA will provide, among other things, that the
End Users have consented to the transfer being performed by Customer or
Customer's designee. When applicable, Customer will be responsible for
notifying End Users, in writing (or by any other means approved by the
FCC) that (i) a transfer charge will be reflected on their LEC xxxx for
effecting a change in their primary interexchange carrier ("PlC"), (ii)
the entity name under which their interstate, intrastate 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 long distance service and/or billing. Customer agrees
to send WorldCom a copy of the documentation Customer uses to satisfy
the above requirements promptly upon request of WorldCom. WorldCom may
change the foregoing 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. Provided,
however, Customer will be solely responsible for ensuring that the
transfer of End Users to the WorldCom network conforms 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, ss.64.1100 or any successor regulation(s).
7.2 Excluded ANIs WorldCom has the right to reject any AM supplied by
Customer for any of the following reasons: (i) WorldCom is not
authorized to provide or does not provide 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 long distance services in the jurisdiction in which
the ANI is located, (iv) Customer is in default of this Agreement, (v)
Customer fails to cooperate with WorldCom in implementing reasonable
verification processes determined by WorldCom to be necessary or
appropriate in the conduct of business, or (vi) any other circumstance
reasonably determined by WorldCom which could adversely affect
WorldCom's performance under this Agreement or WorldCom's general
ability to transfer its other customers or other end users to the
WorldCom network, including without limitation, WorldCom's ability to
electronically effect PlC changes with the LECs. In the event WorldCom
rejects an AM, WorldCom will notify Customer as soon as possible of its
decision specifically describing the rejected AM 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 AM requested by Customer
for Service may be deactivated by WorldCom if no Service xxxxxxxx
relevant thereto are generated in any three (3) consecutive calendar
month/billing periods. WorldCom will be under no obligation to accept
AMs within the three (3) full calendar month period preceding the
scheduled expiration of the Term.
7.3 Records Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Service, including, but not limited to,
appropriate and valid LOAs from End Users for a period of not less than
12 months or such other longer
period as may be required by applicable law, rule or regulation.
Customer shall indemnify WorldCom for any costs, charges or expenses
incurred by WorldCom arising from disputed PlC selections involving
Service to be provided to Customer for which Customer cannot produce an
appropriate LOA relevant to the AM and PlC charge in question, or when
WorldCom is not reasonably satisfied that the validity of a disputed LOA
has been resolved.
7.4 Customer Service Customer will be solely responsible for billing the End
Users and providing the End Users with customer service. Customer agrees
to immediately notify WorldCom in the event an End User notifies
Customer of problems associated with the Service, including without
limitation, excess noise, echo, or loss of Service.
8. Customer Responsibilities:
8.1 In the event Customer requests expeditious Service and WorldCom agrees
to such request, WorldCom will pass the charges assessed by any
supplying parties (e.g. local access providers) involved at the same
rate to customer. WorldCom may further condition its performance of such
request upon Customer's payment of additional charges to WorldCom.
8.2 Customer shall indemnify and hold harmless WorldCom from all costs,
expenses, claims or actions arising from fraudulent calls of any nature
which may comprise a portion of the Service to the extent the party(s)
claiming the calls in question to be fraudulent is (or had been at the
time of the call) an End User of the Service through Customer or an end
User of the Service through Customer's distribution channels. Customer
shall not be excused from paying WorldCom for Service provided to
Customer or any portion thereof on the basis that fraudulent calls
comprised a corresponding portion of the Service. In the event WorldCom
discovers fraudulent calls are being made (or reasonably believes
fraudulent calls are being made), nothing contained herein shall
prohibit WorldCom from taking immediate action (without notice to
customer) that is reasonably necessary to prevent such fraudulent calls
from taking place, including without limitation, denying Service to
particular ANIs or terminating Service to or from specific locations.
9. Liability, General Indemnity, Reimbursement:
9.1 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, LOSS
OF GOODWILL, OR LOSS OF PROFITS ARISING IN ANY MANNER FROM THIS
AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS
HEREUNDER.
9.2 In the event parties other than Customer (e.g. Customer's End Users)
shall have use of the Service through Customer, then Customer agrees to
forever indemnify and hold WorldCom, its affiliated companies and any
third party provider or operator of facilities employed in the provision
of the Service 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
Service.
9.3 Customer agrees to reimburse WorldCom for all reasonable costs and
expenses incurred by WorldCom due to WorldCom's direct participation
(either as a party or a witness) in any administrative, regulatory, or
criminal proceeding concerning Customer if WorldCom's involvement in
said proceeding is based solely on WorldCom's provision of Service to
Customer.
10. Rights and Obligations Upon Customer's Breach:
10.1 Except as provided in paragraph 2.2 of this Agreement or in the Tariffs,
in the event that Customer breaches any provision of this Agreement,
WorldCom will provide Customer with written notice of such breach.
10.2 Except as provided in paragraph 2.2 and 10.3 of this Agreement or in the
Tariffs, Customer must cure any breach of this Agreement to WorldCom's
satisfaction within fifteen (15) days of Customer's receipt of notice of
such breach.
10.3 Customer must cure a breach of any payment obligation that is set forth
in section 5. of this Agreement to WorldCom's satisfaction within three
(3) days of Customer's receipt of notice of such breach.
10.4 If Customer does not timely and adequately cure a breach of this
Agreement, WorldCom may do any one or more of the following:
10.4.1 terminate this Agreement; or
10.4.2 terminate any other agreement it may have with Customer; or
10.4.3 contact each End User directly for the purpose of notifying such
End User that WorldCom will no longer provide long distance
telephone services to Customer, that WorldCom will provide long
distance telephone service to it pursuant to the Tariffs and
that WorldCom will continue to provide such service unless such
End User notifies its LEC to change its long distance telephone
service to another primary interexchange carrier.
11. Confidential Information:
11.1 Each party understands that in performing this Agreement it may have
access to private or confidential information relating to the other
party or such other party's customers ("Confidential Information"). Each
party agrees that the Confidential Information will:
11.1.1 remain the exclusive property of the disclosing party;
11.1.2 not be copied, published or disclosed to others;
11.1.3 be used solely in the performance of this Agreement; and
11.1.4 be returned to the disclosing party upon termination of this
Agreement.
Violation by a party of the foregoing provisions shall entitle the
nondisclosing party at its option, to obtain injunctive relief without a
showing of irreparable harm or injury and without bond.
12. Regulatory Requirements:
12.1 Customer represents and warrants that it has obtained a valid
Certificate of Public Necessity in all required jurisdictions. 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. Further, if
required by WorldCom, Customer agrees to provide proof of such
certification acceptable to WorldCom. In the event Customer is
prohibited, either on a temporary or permanent basis, from conduction
telecommunications operation in a given state, Customer shall (i)
immediately notify WorldCom by facsimile, and (ii) send written notice
to WorldCom within twenty-four (24) hours of such prohibition.
12.2 Customer will submit to WorldCom, before making any Submission, copies
of any and all Certificates of Public Necessity or other related
documentation that WorldCom may request, including, but not limited to,
that for the State of Florida should Customer seek to serve End Users in
that State.
12.3 Interstate/Intrastate Service. Except with respect to Service
specifically designated as intrastate Service or international Service,
the rates provided to Customer are applicable only to Service if such
Service is used for carrying interstate telecommunications (i.e.,
Service subject to FCC jurisdiction). WorldCom shall not be obligated to
provide Service with end points within a single state or Service which
originates/terminates at points both of which are situated within a
single state. In those
states where WorldCom is authorized to provide intrastate service (i.e.,
telecommunications transmission services subject to the jurisdiction of
state regulatory authorities), WorldCom will, at its option, provide
intrastate Service pursuant to applicable state laws, regulations and
applicable tariff, if any, filed by WorldCom with state regulatory
authorities as required by applicable law.
13. Authorized Use of WorldCom Name:
13.1 Without WorldCom's prior written consent, Customer shall not (I) refer
to itself as an authorized representative of WorldCom whenever it refers
to the Service in promotional, advertising or other materials, or (ii)
use WorldCom's logos, trademarks, service marks, or any variations
thereof in any of its promotional, advertising or other materials.
Additionally customer shall provide to WorldCom for its prior review,
and written approval all promotions, advertising and other materials or
activity using or displaying WorldCom's name or the Service to be
provided by WorldCom. Customer agrees to change or correct, at
Customer's expense, any material or activity which WorldCom, in its sole
judgement, determines to be inaccurate, misleading, or otherwise
objectionable.
14. Notices:
14.1 Any notice required by this Agreement will be effective and deemed
delivered three (3) business days after posting with the United States
Postal Service .when mailed by certified mail, return receipt requested,
properly addressed and with the correct postage, one (1) business day
after pick-up by the courier service when sent by overnight courier,
properly addressed and prepaid or one (1) business day after the date of
the sender's electronic confirmation of receipt when sent by facsimile
transmission.
14.2 Notices will be sent to the addresses or FAX numbers set forth in this
Agreement, unless either party notifies the other in writing of an
address or FAX number change.
15. General:
15.1 Customer may not assign this Agreement except to a person or entity that
is controlled, controlling or controlled in conjunction with Customer
and upon at least forty-five (45) days prior written notice to WorldCom.
15.2 Customer may not subcontract with other persons or entities to undertake
any of Customer's obligations that are set forth in this Agreement.
15.3 This Agreement shall be construed under the laws of the State of
Mississippi without regard to choice of law principles except to the
extent that the Telecommunications
Act of 1996, as amended and as interpreted by the Federal Communications
Commission, applies.
15.4 Neither party will be liable for failure to perform its obligations
hereunder due to causes beyond its control, including accidental damage
to WorldCom's network, acts of God, laws or requirements of any
government or national emergencies.
15.5 If any of the provisions of this Agreement are determined to be invalid,
the remaining provisions will still be valid.
15.6 Headings are used in this Agreement for convenience only and are not to
be used to interpret this Agreement or any of its provisions.
15.7 This Agreement will be deemed effective only upon full execution of this
Agreement by each of the parties. This Agreement may be modified only
pursuant to a writing that is signed by each of the parties.
15.8 This Agreement is subject to all applicable existing and future laws,
rules and regulations of any governmental authority.
15.9 Each party represents and warrants that it has the full legal and
regulatory authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement, and that this Agreement is
not in conflict with any other agreement to which such party is bound.
15.10 In any action arising out of or relating to this Agreement, the
prevailing party will be entitled to recover its reasonable attorneys'
fees and other costs in addition to any other relief that may be
awarded.
15.11 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.
15.12 This Agreement contains the full understanding of the parties and
supersedes any prior agreements between the parties.
IN WITNESS WHEREOF, the parties have signed this Agreement and the
individuals signing below represent that they have the authority to sign for and
on behalf of the respective parties.
ACCEPTED BY: ACCEPTED BY:
BY: /s/Xxxxxxx Xxxxxxxx BY: /s/Xxxxx Xxxx
NAME: Xxxxxxx Xxxxxxxx NAME: Xxxxx Xxxx
TITLE: President TITLE: Director of Marketing
DATE: 6/30/97 DATE:_______________________
FAX: 0-000-000-0000 FAX: 000-000-0000
