AGREEMENT
THIS AGREEMENT ("Agreement") is made this 27th day of July, 1998, between
Americatel Corporation, 0000 XX 00 Xxxxxx, Xxxxx, Xxxxxxx 00000 (hereinafter
"Americatel") and Startec Global Communications, 00000 Xxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter "Startec") (or also "Party" or
"Parties") as to the following facts:
1. SERVICES AND CHARGES.
a) Arnericatel shall permit Startec to utilize one-half of the capacity
of the DS-3 facility connecting Americatel Corporation, 00 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxx 0000, Xxx Xxxx, New York 10013 and
Americatel Corporation at 0000 XX 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 as
described in this Agreement. (hereinafter "Service" or "Services")
b) For this use, Americatel shall charge Startec $19,750.50 per month as
a Monthly Recurring Charge (MRC) and a One-Time Charge (OTC) of $1,500
payable as indicated in this Agreement.
c) In the initial configuration, Startec shall be allotted 10 T l's and 3
E 1's. Startec shall be permitted to request a modification of the
initial configuration subject to the limitations of the equipment
configuration and subject to Americatel's approval.
d) Americatel shall also provide to Startec Ml 3 Mux Services at each end
of the DS-3. (also included in "Services")
e) Americatel shall charge Startec an additional charge of $1,378.83 per
month as an MRC for the for the M13 Mux Services, including the
operation and maintenance of the equipment, which sum shall be payable
as indicated in this Agreement.
f) The terms and conditions relating to any collocation of Startec's
telecommunications equipment on Americatel's premises shall be the
subject of an annex to this agreement and said terms and conditions
shall be determined at that time.
2. EFFECTIVE DATE; TERM; INSTALLATION DATE.
The Effective Date of this Agreement is the date it is signed by both
parties. The initial term of service (the "Initial Term") shall be for the
period of one year, calculated from the Effective Date of this Agreement.
Billing charges shall begin to accrue on the date the DS-3 is delivered and
accepted by Americatel. After the Initial Term, this Agreement will
continue on a month-to-month basis. After the Initial Term, this Agreement
may be canceled (and service terminated) by either party subject to at
least thirty (30) days prior written notice and subject to the provisions
in Section 6 of
1
this Agreement.
3. RESPONSIBILITIES.
(a) Americatel shall in all cases, make reasonable efforts to facilitate
the timely installation of all necessary facilities and the
implementation of Services; provided however, that Americatel shall in
no manner whatsoever, be held responsible for any liability or alleged
liability, arising from a delay or other malfunction of any Services
or the initiation thereof, to the extent such delay or malfunction is
the result of the acts, omissions, fault, or negligence of any person
or entity other than Americatel, its employees and authorized agents
and representatives. The limitations specified in the preceding
sentence shall include without limitation, delays caused by failure or
delay in obtaining any authorizations from or agreements with any
third party telecommunications providers, which authorization or
agreement is required in order to install equipment or initiate
services.
(b) Startec shall be responsible for any facilities required to reach
Americatel's demarcation points in New York and Miami as specified in
Section l(a) of this Agreement and these shall be completed by Startec
at Startec's expense.
(c) Americatel shall be responsible for the completion of the following
tasks:
(i) M13 Muxes Maintenance. Americatel shall provide aintenance
service for Ml 3 Muxes at the Site on a twentyfour hour,
seven-day per week basis.
(ii) New Service Installation. Startec shall coordinate with
Americatel a schedule for the installation of new services and
such installation shall be performed during normal business
hours.
4. PAYMENT.
(a) Initial Payment. All One-Time Charges and one full month's Monthly
Recurring Charge (MRC) are due within five (5) business days from the
date this Agreement is signed.
(b) Monthly Payments. Payment of the MRC shall be invoiced separately and
shall be due in advance on or before the first calendar day of each
month. For the first and last month of this Agreement where it is in
force on a fractional basis, MRCs shall be pro-rated based on a
thirty-(30) day month.
2
(c) Late Payment Charge. Payments not received when due will be assessed a
late charge of one-and-one-half percent (1 1/2%) per month of the
amount due (pro-rated for the days outstanding), or the maximum
permitted by law if less.
(d) Currency/Method of Payment. All payments by Startec to Americatel
hereunder shall be made in U.S. dollars. Payment shall be deemed made
only upon receipt by Americatel of collected funds and shall be made
via bank wire transfer to such bank account as Americatel may
designate by notice to Startec.
5. TAXES AND OTHER CHARGES.
One-half (that is, Startec's share) of any use, excise, sales or privilege
taxes, duties, value-added taxes, fees, assessments or similar liabilities
however denominated which may now or hereafter be levied on the Services or
equipment which are the subject of this Agreement or payments made under
this Agreement, chargeable to or against Americatel by any applicable
government authority, shall be passed through to and be payable by Startec
in addition to the other charges under this Agreement. Should Americatel be
required to pay or pays these taxes, fees or assessments or similar
liabilities on behalf of Startec, Startec shall promptly reimburse
Americatel for such payments upon receipt of an invoice from Americatel.
Taxes chargeable against the income or gross receipts of Startec shall be
paid by Startec,
6. TERMINATION.
This Agreement may be terminated:
(a) By Americatel, if Startec falls to make payment of any amount due
hereunder, and such amount remains unpaid more than twenty (20) days
after Startec receives from Americatel, a notice of such nonpayment.
In addition, Americatel reserves the right to terminate this Agreement
if Startec or its customer or user breaches any provision(s) hereof
and fails to cure the breach within thirty (30) days of receipt of
written notice thereof;
(b) By Americatel, effective immediately in the event of, (a) 2 violation
of an applicable law or regulation; (b) to protect against loss or
degradation of any communication services, property damages, or
personal injury; or (c) failure of Startec to protect Confidential and
Proprietary Information (as defined in Section 11 below) entrusted to
it.
(c) By Startec, at any time after the Effective Date, pursuant to 30 days
advance written notice to Americatel, and for any reason whatsoever.
Should, Startec terminate this Agreement prior to the
3
expiration of the Initial Term, Startec shall pay Americatel an early
termination charge which charge shall equal the full amount of the
monthly recurring charges (MRC) for one year calculated at the rates
stated in this Agreement less 1/12th thereof for each month received
and paid for by Startec prior to the date of termination.
(d) Upon the occurrence of any of the events identified in Section 6(a)
and (b) above, the Americatel may in its sole discretion, take any or
all of the following actions:
(i) temporarily suspend Services to Startec (in whole or in part in
its sole discretion) without terminating the Agreement until
Startec cures the default, during which suspension Startec shall
continue to remain liable for the payment of all amounts payable
in accordance with the terms hereof;
(ii) terminate the Agreement, and require Startec to immediately pay
to Americatel all amounts then due by Startec under this
Agreement, in addition to the termination charges outlined in
Sections 6(c) and (@ herein, and all other costs and expenses of
collection, including reasonable attorneys' fees and costs;
(iii)proceed by appropriate court action to recover damages for
breach of the Agreement together with costs and expenses in
connection with enforcing the Agreement, including reasonable
attorney's fees and costs; and
(iv) pursue any other remedies available at law or in equity.
(e) Additionally, If this Agreement is terminated in accordance with
Sections 6(a) - (c) and in addition to all of Americatel's other
remedies at law or in equity, Americatel shall have the option to
provide access to the DS-3 to whomever else Americatel sees fit.
Startec shall not be entitled to any equitable relief with respect to
such use or for any refund of amounts paid to Americatel hereunder.
(f) In addition to the foregoing, and in the event of termination. under
either of Sections 6(a) - (c), Startec agrees to be responsible for
any costs of early termination rightfully assessed against either
Startec or Americatel by any third party or parties (including any
local, national, governmental or quasi-governmental telecommunications
entities and any other entities involved in the provision of the
services at DS-3, whether by contract, tariff or otherwise). Startec
shall reimburse Americatel for any such costs
4
paid by Americatel.
(g) Startec acknowledges that the foregoing rights of Americatel are
reasonable; constitute liquidated damages for the loss of the bargain
contemplated hereunder and do not constitute a penalty. The
termination of this Agreement for any reason shall extinguish all of
Americatel's obligations to provide, and Startec's obligations to
accept, service relating to the DS-3, but shall not relieve either
party of any obligation that may have arisen prior to such
termination.
7. LIMITATION OF LIABILITY, GENERAL INDEMNITY.
(a) Americatel shall not be liable to Startec or to any third party for
any loss or damage incurred by reason of, or incidental to, any delay,
interruption or failure of Service however long it shall last, or for
any failure in or breakdown of facilities associated with the Service,
or for any mistakes, omissions, delays, errors, or defects in
transmission occurring in the course of furnishing Service, whatsoever
shall be the case of any of the foregoing and whether negligent or
otherwise.
(b) In addition to the foregoing Americatel shall not be liable to Startec
or to the customers or users of Startec for:
(i) Libel, slander, or infringement of copyrights arising from or in
connection with the transmission of communications via the
facilities and Services of Americatel.
(ii) Infringement of patents or trade secrets arising from the
combination, or use of the facilities or Services provided by
Americatel with Startec's facilities or services or its
customers' or users' facilities or services;
(iii)Any claim arising out of any act or omission of Startec's, it's
customers, users or any third party;
(iv) Unlawful or unauthorized use of Americatel's facilities and
Services;
(v) Any claim arising out of a breach in the privacy or security of
communications transmitted over Americatel's facilities.
(vi) Any claim arising out of or with respect to any facilities or
services provided by any third party.
(vii)Changes in any of the facilities, operations or procedures of
Americatel that render any facilities or Services provided
5
thereby obsolete, require modification or alteration of such
facilities or Services, or otherwise affect their use or
performance. Americatel will endeavor to advise the other on a
timely basis of any such changes; or
(viii)Thenature or content of the material, signals or programming
transmitted or received via facilities and Services.
(c) Startec shall indemnify and save Americatel harmless from all
liability arising out of or in connection with the provision of
services by Startec, and shall protect and defend Americatel from any
suits or claims alleging such liability, and shall pay all expenses,
including Americatel's own attorney's fees if any are incurred, and
satisfy all judgments which may be incurred by or rendered against
Americatel in connection therewith, Americatel shall notify Startec of
any such suit or claim against Americatel.
(d) Americatel assumes no responsibility for the availability or
performance of the facilities or services under the control of any
other facilities or services supplier and which are used for service
to Startec, its customer or user. Such facilities hereunder are
provided subject to such degree of protection or nonpreemptibility as
may be provided by such other facilities or services supplier. When
the facilities or services of any other facilities or services
supplier are used in establishing connections with Americatel's
facilities at the connecting location, Americatel shall not be liable
for any act or omission of the other supplier.
(e) It is expressly agreed that Startec's sole and exclusive remedies for
any cause whatsoever arising out of or relating to this agreement are
limited to those set forth herein, and all other remedies Of any kind
are expressly excluded and disclaimed.
(f) In no event shall Americatel be liable for any incidental or
consequential damages or loss of revenues of Startec or any third
party, whether foreseeable or not, occasioned by any defect in any
facility provided or arranged for Startec, or arising from the
provision of Service, or from any other cause whatsoever, and
regardless of whether prior notice of the possibility of such damages
to Americatel has been given.
(g) Americatel hereby expressly excludes and disclaims any express and
implied warranties with respect to any facility or Service provided or
arranged for Startec by Americatel, including with respect to the
compatibility of any such service or facility with any
Startec-provided
6
software, hardware or facility.
(h) Without limiting the generality of the foregoing, Startec acknowledges
and agrees that it shall otherwise have no right of recovery for the
satisfaction of any cause whatsoever, arising out of or relating to
the provision of Service and use of the DS-3 or of any related
equipment, against Americatel.
8. FORCE MAJEURE.
Each party will be excused from performance to the extent that it is
prevented from so performing, in whole or in part, as a result of delays
caused by the other or any act of God, war, civil disturbance, court order,
labor dispute, third party non-performance, or other cause beyond its
reasonable control, including but not limited to failures, fluctuations or
nonavailability of electrical power, heat, light, air conditioning or
telecommunications equipment. Such nonperformance will not be a default or
a ground for termination as long as reasonable means are taken to
expeditiously remedy the problem causing such non-performance. This
provision shall not, however, relieve Startec from making any accrued
payment under this Agreement when due.
9. ASSIGNMENT.
Neither this Agreement, nor the rights and obligations of Startec arising
hereunder, nor any part thereof, may be assigned by Startec except with the
express written approval of Americatel. This Agreement shall be binding on
and shall inure to the benefit of any successors and assigns of the
parties, provided that no assignment shall relieve either party of its
obligations to the other party. Any purported assignment by either party
not in compliance with these terms and conditions shall be null and void
and of no force and effect. Any assignment of any right and/or interests of
either party shall require at least ninety-(90) days written notice to the
other party.
10. TITLE TO EQUIPMENT.
This is a service agreement and no property interest is created hereby, nor
does it grant or convey any rights in Startec to assert any right,
interest, lien or encumbrance of any kind as to the M13 Muxes or other
equipment which is the subject of this Agreement. Title to the M13 Muxes
shall remain with Americatel at all times and shall be kept free and clear
of all claims, liens and encumbrances of Startec, its agents, employees,
representatives, creditors or any persons claiming through Startec, Startec
shall, at its expense, protect and defend Americatel's title from any such
claims, liens and encumbrances. Any such equipment is and shall remain
Americatel's personal property irrespective of their use or manner of
attachment to real property, and Startec shall secure all necessary
7
waivers and do such other acts; as may be reasonably required by property
owners or requested by Americatel to ensure the same.
11. CONFIDENTIALITY.
(a) Startec agrees that all confidential and/or proprietary information
communicated to it by Americatel, whether before or after the date
written below, will be received in strict confidence, will be used
only for purposes intended by the disclosing party, and except as
otherwise provided below, will not be disclosed by Startec, its
agents, subcontractors or employees without the prior written consent
of the disclosing party as follows:
(i) Startec may disclose the Confidential and Proprietary information
and Materials of Americatel only to those employees, agents,
attorneys and advisors of Startec who have a "need to know" such
Confidential and Proprietary Information and Materials in order
for Startec to make use effectively of same for the permitted
uses. Startec shall be responsible for any unauthorized
disclosure or use of disclosing Party's Confidential and
Proprietary Information and Materials by such employees, agents,
attorneys or advisors. A permitted person shall be considered to
have a need to know" if such person's employment or retention is
essential to either Party's performance of its obligations
hereunder, or in order to comply with applicable law or reporting
requirement.
(ii) Startec shall protect and maintain the confidentiality of the
Confidential and Proprietary Information and Materials of
Americatel using at least the same level of care (but no less
than reasonable care) that Startec uses to protect and maintain
the confidentiality of its own Confidential and Proprietary
Information and Materials.
(iii)Disclosure of Confidential and Proprietary information conveys
no copyrights, trademarks, service marks, or any rights to
Americatel's trade secrets, know-how or any other intellectual
property rights.
(iv) At the request of Americatel upon termination of this Agreement
or at any time or from time to time thereafter, Startec shall as
promptly as practicable and in all cases within five (5) days of
such request deliver to Americatel all Confidential and
Proprietary Information and Materials of Americatel then in
Startec's possession or under Startec's control or, in lieu
thereof, Startec may destroy all of Startec's.
8
copies of such Confidential and Proprietary Information and
Materials and certify to Americatel in writing that such
destruction has been accomplished.
12. APPLICABLE LAW.
The provision of this Agreement and any documents delivered pursuant
hereto, shall be governed by and construed in accordance with the laws of
the State of Florida. Each party hereto irrevocably submits to the
jurisdiction of the State and Federal courts of the State of Florida, Dade
County, in any action or proceeding arising out of or relating to the
Service Order, and each party hereby irrevocably agrees that all claims in
respect of any such action or proceeding must be brought and/or defended in
such courts; provided however, that matters which are under the exclusive
jurisdiction of the Federal courts shall be brought in the Federal District
Court for the Southern District of Florida. Each party hereto consents to
service of process by any means authorized by the applicable law of the
forum in any action brought under or arising out of this Agreement and the
service relating to the DS-3 described herein by Americatel, and each party
irrevocably waives, to the fullest extent each may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
13. HEADINGS.
The headings and section titles in these terms and conditions are inserted
for convenience only and shall not affect the meaning or interpretation of
any article or provision hereof.
14. NOTICES; BILLING AND WIRE ADDRESSES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by prepaid first class
mail, or by facsimile. Any such notice or other communication, if mailed by
prepaid first class mail at any time other than during a general
discontinuance of postal service due to strike, lockout or otherwise, shall
be deemed to have been received on the fourth business day after the date
post-marked; or if sent by facsimile, shall be deemed to have been received
on the business day following the sending, provided that a hard copy is
immediately sent by prepaid first class mail as aforesaid; or if delivered
by hand, shall be deemed to have been received at the time it is delivered
to the applicable address noted below either to the individual designated
below or to an individual at such address having apparent to accept
delivered on behalf of the addressee. The addresses below may be changed by
either Party with at least 5 business days written notice to the other.
Notices and other communications shall be addressed as follows:
9
In the case of Americatel: In the case of Startec
------------------------- ----------------------
Americatel Corporation Startec Global Holding Corporation
0000 X.X. 00xx Xxxxxx 00000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000 Xxxxxxxx, XX 00000
Phone: (000)000-0000 Phone: (000) 000-0000
Fax: (000)000-0000 Fax: (000) 000-0000
Att'n: VP Corp. & Legal Affairs Att'n: VP Accounting & Legal Affairs
Billing Addresses:
------------------
Same address Same address
Att'n: Director of Accounting Att'n: Director of Accounting
Bank Wire Addresses:
Account#: 2090001358277 Account#:
ABA#: 000000000 ABA#:
First Union N.B. ------------------------------
0000 XX 00xx Xxxxxx ------------------------------
Xxxxx, Xxxxxxx 00000 ------------------------------
15. NON-EXCLUSIVITY. INDEPENDENT CONTRACTOR
This Agreement is non-exclusive. Nothing in this Agreement shall obligate
either party to enter into or shall create a partnership or joint venture
between the parties or result In a joint communications service offering to
third parties, nor shall be deemed to prevent either party from entering
into an agreement or negotiation of any kind or nature with third parties.
Each party will act as an independent contractor under the terms of this
Agreement and not as an agent or legal representative of the other party
for any purposes and neither party has any right or authority to assume or
create any obligation of any kind, express or implied, on behalf of the
other or on behalf of any customers of the other or to any other person.
All persons employed by either party in connection with the Services
provided under this Agreement shall be considered employees or agents of
such party only, and shall in no way, either directly or indirectly, be
considered employees or agents of the other party.
16. SERVICE MARKS
Neither Party shall use, directly or indirectly, in whole or in part, in
connection with the such Party's business hereunder or otherwise, or as
part of the Party's corporate, business or personal name, any signature,
monogram, logo, service xxxx or trade name (a "Xxxx") that is now or may
hereafter be owned, licensed or used by the other Party except in the
10
manner and to the extent approved in writing by the other Party prior to
any such use, which approval may be withheld in the Xxxx owner's sole
discretion. Any permitted use of a Xxxx shall be immediately discontinued
upon the termination or expiration of this Agreement. Each Party hereby
expressly disclaims any and all right, title and interest in and to any
Xxxx owned by the other Party whether or not used by the Xxxx owner. The
covenants and disclaimers of this Section 16 shall survive the termination
or expiration of this Agreement.
17. COMPLIANCE WITH GOVERNMENT AUTHORITIES
Each Party shall comply with any restrictions or conditions imposed by
applicable government authorities on such Party's receipt or use of the
Services in any country in which the Party uses the Services, and the
Party's use of the Services in, between, or among any countries. Neither
Party shall use the Services in violation of any applicable law, rule or
regulation. Startec shall indemnify defend and hold Americatel harmless
from and against any liability or alledged liability resulting from any act
or omission by the Startec, its agents, employees or representatives which
is contrary (or allegedly contrary) to applicable law, rule or regulation.
18. MISCELLANEOUS
(a) Additional Actions and Documents. Each of the Parties hereby agrees to
take or cause to be taken such further actions, to execute, deliver,
and file such further documents and instruments, and to use its best
efforts to obtain such consents or approvals as may be reasonably
requested in order to fully effectuate the purposes of this Agreement.
(b) Waiver. Any waiver or consent by either Party to any variation from
any provision of this Agreement shall be valid only in the specific
instance in which it is given, and no such waiver or consent shall be
construed as a waiver of any other provision of this Agreement or with
respect to any similar instance or circumstance.
(c) Binding Effect. Subject to the provisions hereof restricting
assignment, this Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and
permitted assigns.
(d) Amendment. This Agreement may not be amended, altered, or modified
except by an instrument in writing, duly executed by both Parties.
(e) Limitation on Benefits of this Agreement. It is the explicit intention
of the Parties that no person or entity other than the Parties is or
shall be entitled to bring any action to enforce any provision of this
11
Agreement against either of the Parties, and that the covenants,
undertakings, and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the
Parties and their respective successors and permitted assigns.
(f) Entire Agreement. This Agreement contains the entire agreement between
the Parties with respect to the subject matter hereof and supersedes
all prior or contemporaneous oral or written agreements, commitments,
statements or understandings with respect to the matters provided for
herein.
(g) Construction. The Parties hereby acknowledge that they each
participated equally in the negotiation and drafting of this Agreement
and that, accordingly, no court construing this Agreement shall
construe it more stringently against one Party than against the other.
(h) Execution. To facilitate execution, this Agreement may be executed in
one or more counterparts, and it shall be sufficient that the
signature of each Party appear on one or more of the counterparts, All
counterparts shall collectively constitute a single agreement.
(i) Authority. The Parties represent that they each have duly authorized,
executed and delivered this Agreement.
19. ATTORNEY'S FEES.
In the event Americatel brings a lawsuit or other legal action against
Startec to enforce its rights pursuant to this Agreement, and Americatel
prevails in such suit or action, it shall be entitled to recover from
Startec, its reasonable attorney's fees, costs and expenses, including
without limitation all such costs associated with appeals.
20. SEVERABILITY.
Nothing contained in this Agreement shall be construed so as to require the
commission of any act contrary to law. If any provision herein shall be
declared invalid or unenforceable, said provision shall be curtailed and
limited only to the extent necessary to permit compliance with the minimum
legal requirement.
21. INTEGRATION.
This Agreement and any schedules, annexes or addenda attached hereto
contain the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior oral or written agreements,
commitments, or understandings with respect to the matters provided for
herein.
12
22. PRIORITY; AMENDMENT; WAIVER.
The provisions of the each document will be so construed as to give effect
to the applicable provisions of such document to the fullest extent
possible. This Agreement may not be amended or modified in any way, and
none of the provisions hereof may be waived, except by a prior writing
signed by an authorized officer of each party.
For Americatel Corporation: For Startec Global Communication:
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx Xxx
-------------------------------------- ---------------------------------------
Print Name: XXXXX XXXXXX Print Name: XXXXXXX XXX
Address: Address:
0000 XX 00 Xxxxxx 10411 Motor City Drive, Suite 301
Miami, Florida 33178 Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Telephone:
Fax: (305) Fax: (000) 000-0000
13
