1
Exhibit 10.15
JOINT MARKETING AND SERVICES AGREEMENT
This JOINT MARKETING AND SERVICES AGREEMENT (this "Agreement") is made and
entered into as of the 26th day of January 1999 (the "Effective Date"), by and
between IXC Internet Services, Inc., a Delaware corporation ("IXC"), and Applied
Theory Communications, Inc., a New York corporation ("ATC").
WHEREAS, IXC has acquired a portion of the stock of ATC per a Stock
Purchase Agreement dated May 19, 1998, by and among IXC, Grumman Hill
Investments III, L.P., ATC, NYSERNet, Inc., and Xxxxxxx Xxxxxxxxxx, Xxxxx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxx and Xxxx Xxxx, (the "Stock Purchase
Agreement");
WHEREAS, ATC is in the business of providing Internet connectivity and
related services to business, wholesale, and end-user customers;
WHEREAS, IXC is in the business of providing network-based information
delivery solutions to business, wholesale, and end-user customers;
WHEREAS, pursuant to the Stock Purchase Agreement, IXC and ATC have
agreed to work together in good faith to negotiate an agreement to cover the
resale by each company of the others' products and services;
WHEREAS, IXC and ATC desire to create and market various service
offerings to customers incorporating or consisting entirely of their respective
services and an Internet services component; and
WHEREAS, IXC and ATC are willing to provide their service offerings
each to the other; and are willing to purchase such services each from the other
on the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of this Agreement, the Parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, certain terms have been defined below
and elsewhere in this Agreement (including the attached Schedules) to encompass
meanings that may differ from, or be in addition to, the normal connotation of
the defined word. Unless the context clearly indicates otherwise, any term
defined or used in the singular shall include the plural. A defined word
intended to convey its special meaning is capitalized when used.
"Affiliate" of a Party means any other party which directly or
indirectly controls, is under common control with, or is controlled by, such
entity, where "control" means the power and ability to direct the management and
policies of the controlled entity through the ownership of voting shares of the
controlled entity or by contract or otherwise. Notwithstanding the foregoing,
Trustees of General Electric Pension Trust and Grumman Hill Investments, L.P.
and Grumman Hill Associates, Inc. shall not be deemed to "control" or be "under
common control" with, or to be Affiliates of IXC and ATC shall not be deemed to
be "controlled by" or "under common control with" IXC.
"Agreement" has the meaning set forth in the preamble.
"ATC" has the meaning set forth in the preamble.
"Buying Party" means the party reselling the Services of the Supplying
Party to Customers.
-1-
2
"Claim" means any pending or threatened claim, action, proceeding or
suit by any Third Party.
"Confidential Information" has the meaning set forth in Section 10.1.
"Cure Period" has the meaning set forth in Section 9.2.1.
"Customer" means any purchaser of a service offering that includes
Services provided by the Selling Party under this Agreement. As used in
this Agreement, a "Customer" shall include (i) any customer with which
the Buying Party enters into an agreement relating to the sale of
services that include Services, (ii) any customer that purchases
Services for which billing is provided by the Buying Party, (iii) any
party that purchases Value-Added Services from the Buying Party, and
(iv) any purchaser of services that include Services from a Buying
Party Reseller. In cases where Buying Party uses Services provided by
Selling under the Agreement for is own internal purposes, Buying Party
shall be deemed a "Customer" for purposes of this Agreement.
"Customer Information" shall mean all information relating to each
Customer collected in connection with the provision of Services to such
Customer, including without limitation the name, address, usage,
features and services purchased, locations served, payment history and
all other information identifiable to a particular customer.
"Damages" means any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement of any nature or kind, known or unknown,
liquidated or unliquidated, including without limitation all reasonable
costs and expenses incurred (legal, accounting or otherwise).
"Documentation" shall mean Reseller Documentation and End User
Documentation.
"Documents" has the meaning set forth in Section 5.1.
"Effective Date" has the meaning set forth in the preamble.
"End-User Documentation" shall mean all documentation provided by a
Party for use by end-users of its services in connection with the use
and operation of the materials describing such services, as such
documentation may be amended, modified or supplemented from time to
time.
"Infrastructure" has the meaning set forth in Section 6.1.
"Intellectual Property Rights" shall mean all intangible property
rights protectable by law throughout the world including all copyrights
(including, without limitation, the exclusive right to reproduce,
distribute copies of, display and perform the copyrighted work and to
prepare derivative works), copyright registrations and applications,
trademark rights (including trade dress), trademark registrations and
applications, service xxxx rights, service xxxx registrations and
applications, patent rights (including the right to apply therefor),
patent applications therefor (including the right to claim priority
under applicable international conventions) and all patents issuing
thereon, and inventions, whether or not patentable, together with all
utility and design, know-how, specifications, trade names, mask-work
rights, trade secrets, moral right, author's rights, algorithms,
rights in packaging, goodwill and other intangible property rights, as
may exist now and/or hereafter come into existence, and all renewals
and extensions thereof, regardless of whether any of such rights arise
under the laws of the United States or of any other state, country or
jurisdiction.
"Internet" means the global collection of networks interconnected via a
cooperative infrastructure employing the TCP/IP suite of protocols.
"IXC" has the meaning set forth in the preamble.
-2-
3
"IXC Point of Presence" shall mean one of the points of presence
representing a point of interconnection on the IXC network. The initial
IXC Points of Presence are listed in Schedule 6.2 to this Agreement,
and IXC shall promptly update such schedule during the Term on
reasonable notice to ATC. At any time during the term of this
Agreement, IXC Points of Presence could be collocated with points of
presence on the ATC network pursuant to Section 6.1. "Managed
Connectivity Services" or "MCS" has the meaning set forth in Section
2.1.1.
"Marks" shall mean trade names, logos, trademarks, trade devices, trade
dress, service marks, symbols, abbreviations or registered marks, or
contractions or simulations thereof, or any other indicia or origin as
well as VAS Marks and such other Marks as are used by a Party to
promote, advertise and market the Services, and such other Marks as the
Parties shall agree upon in writing.
"Material Provision" shall mean any provision of this Agreement
(including, without limitation, payment provisions) the breach of which
by one Party is determined by an arbitration pursuant to Section 9.2.1
to constitute a material adverse effect on the use and enjoyment by the
other Party of the benefits of this Agreement.
"Multiple End-User Restrictions" has the meaning set forth in Section
5.12.
"Network Communications Services" or "NCS" has the meaning set forth in
Section 2.1.4.
"Opportunity Consulting Services" or "OCS" has the meaning set forth in
Section 2.1.3.
"Party" means ATC, individually, or IXC, individually.
"Parties" means ATC and IXC, collectively.
"Releasing Party" has the meaning set forth in Section 12.2.
"Reseller" means a third party authorized and contracted by a Party to
sell to end-users on behalf of the Party.
"Reseller Documentation" shall mean all documentation made available by
either Party for use by any reseller or distributor of services of the
type comprising the Services to describe the methods and procedures
used by either Party in the provisioning and support of users of
services of the type comprising any of the Services provided under this
Agreement, as such documentation may be amended, modified or
supplemented from time to time.
"Sales Support Group" has the meaning set forth in Section 3.2.
"Sales Support Services" has the meaning set forth in Section 3.1.
"Selling Party" means the Party supplying Services to the Buying Party.
"Services" means Managed Connectivity Services, Value Added Services,
Opportunity Consulting Services, and Network Communications Services.
"Term" has the meaning set forth in Section 9.1.
"Third Party" means an entity other than a Party or any Affiliate of a
Party;
"Value Added Services" or "VAS" has the meaning set forth in Section
2.1.2.
-3-
4
2. SERVICE DESCRIPTION(S).
2.1 Description of Services Provided by the Parties. From and after
the Effective Date, on the terms and subject to the conditions set forth in this
Agreement, The Parties shall provide to each other, and the Parties shall have
the right to purchase each from the other, the following services as more
specifically detailed in the attached Schedules (the "Service Descriptions")
which are incorporated herein by reference:
2.1.1 Managed Connectivity Services ("MCS"), consist of the
provision of dial-up and dedicated access to the Internet and data transport to
customers and all related products and services now or hereafter offered or
provided by the Parties that deliver or facilitate such access. The MCS shall
comply with the applicable descriptions so forth on Schedule 2.1.1.A as applies
to ATC and Schedule 2.1.1.B as applies to IXC, including, without limitation,
the functional, technical and performance requirements set forth in such
Schedules. From time to time, the Parties may agree on modifications to the
functional, technical and performance requirements for MCS as are necessary to
address Customer requirements. At such times Supplying Party provides enhanced
versions of MCS, Supplying Party shall make such enhanced versions of MCS
available to the Buying Party, and the Parties may agree, for purposes of this
Agreement, upon the functional, technical and performance requirements for such
services, which requirements shall, at a minimum, ensure that such services
comply with the applicable minimum requirements in Section 2.2.
2.1.2 Value Added Services ("VAS"), consist of services and
products now or hereafter offered by a Supplying Party or a controlled Affiliate
such as: (i) voice or fax over IP, (ii) Internet Security Services, (iii) World
Wide Web services, including web-enabled solutions and software development,
(iv) any other services or products developed jointly by the Parties, and (v)
any other services or products now or hereafter marketed or offered by a
Supplying Party as a generally available service or product offering other than
MCS which are not subject to exclusive marketing relationships with Third
Parties. The VAS shall comply with the applicable descriptions set forth on
Schedule 2.1.2.A as applies to ATC and Schedule 2.1.2.B as applies to IXC,
including, without limitation, the functional, technical and performance
requirements set forth in such Schedules. From time to time, the Parties may
agree on modifications to the functional, technical and performance requirements
for VAS as are necessary to address requirements of customers. At such times as
a Supplying Party provides enhanced versions of VAS, such Supplying Party shall
make such enhanced versions of VAS available to the Buying Party, and the
Parties may agree, for purposes of this Agreement upon the functional, technical
and performance requirements for such services, which requirements shall, at a
minimum, comply with the applicable minimum requirements in Section 2.2.
2.1.3 Opportunity Consulting Services ("OCS"), will consist of
pre-sales technical support and post-sales development and/or implementation
support to address specific market opportunities. At such times as the situation
warrants, the Parties may agree, for purposes of this Agreement, upon the
functional, technical and performance requirements for such services, which
requirements shall, at a minimum, comply with the applicable minimum
requirements in Section 2.2. Joint teaming efforts of the Parties shall be
conducted in accordance with the Master Teaming Agreement executed by the
Parties on May 11, 1998, attached hereto as Schedule 2.1.3.
2.1.4 Network Communications Services ("NCS"), consist of
services and products now or hereafter offered by a Supplying Party or a
controlled Affiliate such as: (i) voice communications, (ii) data
communications, (iii) communications value-added products; such as calling
cards, 800-service, etc., (iv) any other services or products developed jointly
by the Parties, and (v) any other services or products now or hereafter
marketed or offered by a Supplying Party as a generally available service or
product offering other than MCS or VAS which are not subject to exclusive
marketing relationships with Third Parties. The NCS shall comply with the
applicable descriptions set forth on Schedule 2.1.4.A as applies to ATC and
Schedule 2.1.4.B as applies to IXC, including, without limitation, the
functional, technical and performance requirements set forth in such Schedules.
From time to time, the Parties may agree on such modifications to the
functional, technical and performance requirements for NCS as are necessary to
address Customer requirements. From time to time, the Parties may agree on such
modifications to the functional, technical and performance requirements for NCS
as are necessary to address requirements of customers. At such
-4-
5
times as a Supplying Party provides enhanced versions of NCS, such Supplying
Party shall make such enhanced versions of NCS available to the Buying Party,
and the Parties may agree, for purposes of this Agreement, upon the functional,
technical and performance requirements for such services, which requirements
shall, at a minimum, comply with the applicable minimum requirements in Section
2.2.
2.1.5 Either Party shall have the right and option to have any
other Service of the other included under this Agreement on terms and conditions
reasonably consistent herewith. In addition, unless specifically defined in
Schedules, Exhibits, Services Descriptions, and attachments hereto, upon such
time that a Supplying Party discontinues a service generally among its
customers, such Supplying Party may remove such service from this Agreement, but
only after providing the Buying Party with at least 90 days' prior written
notice of its intention to do so. If a Supplying Party so removes a service,
Such Supplying Party will continue to honor all existing Customer and Reseller
service agreements with end customers by continuing to make such service
available to such Customers through the shorter of (i) the end of the term of
their respective service agreements, and (ii) the end of the two-year period
commencing on the expiration of the 90-day notice period aforementioned.
2.1.6 Notwithstanding anything to the contrary contained
herein, the Parties reserve the right to modify, alter, improve or change any
and all of the services comprising the Services they offer each other which are
covered by this Agreement, and this Agreement will cover the sales of Services
as they may be modified, altered, improved or changed by either Party from time
to time. Subject to Section 2.1, in all cases where such modification,
alteration or change will reduce the functionality of any service component
comprising the Services, the Supplying Party will not effect such modifications,
alterations or changes without the Buying Party's specific written approval.
Such approval will not be unreasonably withheld, delayed or conditioned.
2.1.7 When both Parties agree to change a Service Description,
the initiating Party will prepare a written description of the agreed change (a
"Change Authorization"). Acceptance of the proposed change will be indicated by
authorized signature on the Change Authorization by both parties. The terms of a
Change Authorization prevail over those of the Service Description and any of
its previous Change Authorizations. Any change in the Service Description may
affect the charges or other terms. When additional charges are necessary, the
Supplying Party will provide a written estimate and begin work only if
authorized by Buying Party.
2.2 Minimum Requirements. The Services provided under this
Agreement, as described in Schedules 2.1.1.A, 2.1.1.B, 2.1.2.A, 2.1.2.B, 2.1.3,
2.1.4.A, and 2.1.4.B, as many be amended by mutual agreement from time to time,
shall at all times meet the following minimum requirements:
2.2.1 The Services provided under this Agreement shall be
offered and provided with features and a level of features that, on average and
taken as a whole, equal or exceed that provided by other leading providers of
services offering comparable services in a substantial portion of the geographic
area in which Services are available pursuant to this Agreement. The Parties
agree to work together on a broader range of service offerings and Service
functionality as needed to address market demand. For purposes of this
Agreement, Services shall be deemed to be available in any geographic area in
which a Supplying Party provides services to customers or, subject to the last
sentence of Section 2.7, in which a Supplying Party has an Affiliate, strategic
partner or other cooperating provider providing services in such area of the
type made available under this Agreement.
2.2.2 The Services provided under this Agreement shall be
offered and provided with features and an overall level of quality that equals
or exceeds that which a Supplying Party offers or provides any Customer.
2.2.3 The Services provided under this Agreement shall comply
with all stated service level guarantees relating to such Service as offered or
provided by a Supplying Party as of the Effective Date and as updated from time
to time; provided that no such update my operate to have a material adverse
-5-
6
impact on (i) any Service (including without limitation the level or quality of
service provided to Customers), taken as a whole, without the prior written
consent of the Buying Party (which shall not be unreasonably withheld, delayed
or conditioned), except to the extent necessary to deal with network emergencies
and other circumstances beyond the control of the Supplying Party, in which case
the Supplying Party shall consult with the Buying Party concerning such change
as soon as reasonably practicable, or (ii) any other Services without providing
the Buying Party with advance written notice of such changes as soon as
reasonably practicable.
2.2.4 The Supplying Party shall not make any changes (i) to
any Service that may reasonably be expected to have a material adverse impact on
such Service (including without limitation the level or quality of service
provided to the Buying Party's Customers), taken as a whole, without the prior
written consent of the Buying Party, except to the extent necessary to deal with
network emergencies and other circumstances beyond the control of the Supplying
Party, in which case the Supplying Party shall consult with the Buying Party
concerning such change as soon as reasonably practicable, or (ii) to any OCS
Services provided without providing the Buying Party with advance written notice
of such changes as soon as reasonably practicable.
2.2.5 The OCS provided shall be performed by employees or its
subcontractors of Supplying Party as deemed by the Supplying Party to be best
qualified and available to perform the task at hand as identified by the Buying
Party. Under no circumstances may Supplying Party change subcontract
relationships in effect at the time of proposal submission without the Buying
Party's specific written approval. Such approval shall not be unreasonably
withheld, delayed or conditioned. A Supplying Party's officers supervising the
performance of the services will be empowered to commit the resources of that
Supplying Party to the extent and scope of such officer's authority.
2.2.6 In the event that Services, as defined herein, or
portions of Services, are provided to the Buying Party via a contractual
relationship with a Third Party, the Supplying Party is obligated to maintain
such a relationship to the extent practicable. Should such relationship require
that the Buying Party enter into a similar agreement with the Third Party, the
Supplying Party shall use commercially reasonable efforts to assist the Buying
Party in establishing the relationship and securing rates and levels of service
of at least those provided to the Supplying Party by the Third Party.
2.2.7 In the event Supplying Party determines the necessity to
interrupt Services for the performance of routine maintenance, Supplying Party
shall provide Buying Party with a minimum of 48 hours notice of such service
interruption and will conduct such maintenance during non-peak hours. In no
event shall interruption for system maintenance, if property performed to
Supplying Party standards, constitute a Failure of Performance by Supplying
Party. This Section 2.2.7 is limited exclusively to routine maintenance and in
no way limits the responsibility of Supplying Party to take necessary remedial
maintenance and corrective actions to restore service in the event of unplanned
outage. Such remedial actions may involve interruption of Services; in such
case, Supplying Party will use reasonable efforts to provide notification in
accordance with procedures as may be defined in applicable Service Descriptions.
2.2.8 Periodically, Buying Party may request maintenance
and/or trouble shooting of Buying Party's equipment and/or circuits in Supplying
Party's facilities. Provision of such services by Supplying Party shall be
governed by the following: (A) Maintenance services shall be defined as all work
performed by Supplier on equipment provided by or on behalf of the Buying Party,
or supervision of the Buying Party's work within Supplying Party's facilities,
specifically excluding troubles found within that facility provided by Supplying
Party, (B) Supplying Party may charge a fee not to exceed (1) $75 per hour (with
a four hour minimum when dispatch is required) Monday though Friday during
business hours of 8:00 a.m.-5:00 p.m. local time exclusive of national holidays
and Supplying Party's published Company holidays or (2) $95 per hour with a four
(4) hour minimum at any other time; (C) To enable addressing such maintenance
with telephone request, Buying Party shall supply Supplying Party with the names
of persons authorized to make such requests for service and shall bear all
responsibility for keeping supplying party aware of such authorization granting;
(D) Supplying Party shall provide Buying Party with a number to call to request
such
-6-
7
service and shall be responsible for opening and closing the necessary
transactions to assure proper billing for such service. Except for emergencies,
Supplying Party shall not be obligated to dispatch personnel except as described
in this Section 22.8.
2.3 Documentation. The Parties represent that (i) Schedule 2.3.A - ATC
Theory Documentation and Schedule 2.3.B - IXC Documentation, contain a true and
complete list of all Documentation relating to the Services offered or provided
as of the Effective Date, and (ii) true and complete copies of all such
Documentation have been provided to prior to the Effective Date. In the event
Supplying Party amends, modifies or supplements any such Documentation, or
creates new Documentation in connection with enhanced versions of Services
pursuant to Section 1.1, this Supplying Party shall as soon as practicable
provide the Buying Party with written notice of any such amendments,
modifications, supplements or new Documentation, including copies of the
foregoing.
2.4 License to Documentation and Other Intellectual Property Rights.
2.4.1 Each Party grants the other and its Resellers a limited,
non-exclusive, royalty-free, license, in the geographic area in which Services
are available pursuant to this Agreement, throughout the Term, to (i) copy, but
not modify, sales literature and product descriptions (Schedule 2.3 list) in any
form, (ii) integrate the Documentation, or any part thereof, into catalogs,
price lists, brochures and related sales materials, and (iii) demonstrate,
market, distribute and solicit orders for the Services and warrants that it has
such right to grant. The grant of the foregoing license shall not entitle or in
any way be construed to entitle a Party to (a) use the other's Marks in
connection with it's sales, advertisements and promotion of the Services, except
in materials provided (or approved by the owning Party prior to use; (b)
distribute any Services outside the United States of America in violation of any
United States export restrictions; (c) distribute any Services outside of the
geographic areas in which Services are then available pursuant to this
Agreement; (d) sublicense any of its rights under this Agreement, except as
expressly permitted by this Agreement; or (e) make any agreement or incur any
liability for or on behalf of the other Party except as expressly contemplated
by this Agreement.
2.4.2 Except for the limited license specifically granted in
this Agreement, each Party shall at all times retain full and exclusive right,
title and ownership interest in and to the Services, its Marks and any and all
other Intellectual Property Rights or trade secret rights thereto. Each Party
shall notify the other Party of any action by any Third Party known or
suspected by a Party to constitute an infringement of the other's proprietary
rights. Each Party shall honor all reasonable requests by the other, other than
engaging as a party in litigation, to perfect and protect, at it's own expense,
any rights of the other Party in the Services or such Intellectual Property
Rights or trade secret rights.
2.4.3 The Parties represent that no further licenses to
Intellectual Property Rights are needed to market, offer, provision or use
Services as contemplated by this Agreement, in the geographic area in which
Services are available pursuant to this Agreement.
2.5 Liabilities for Affiliate Obligations. To the extent that a
Supplying Party's performance of its obligations hereunder causes it to assign
or delegate all or part of its liabilities, obligations and commitments
hereunder to any of its Affiliates, said Supplying Party covenants and agrees
that it shall cause any such Affiliate to perform such liabilities, obligations
and commitments in accordance with the terms and provisions hereof. In the event
of such an assignment or delegation, each Party shall remain liable for all of
its liabilities, obligations and commitments hereunder.
2.6 Forecasts. The Parties agree to coordinate in estimating the level
and location of demand and traffic for Services during the term of this
Agreement. In that connection, no later than the 15th day of the first month of
each calendar quarter during the term of this Agreement, Buying Party will
provide Supplying Party with its projected requirements for each Service,
indicating amounts, types and location during each of the following four
calendar months. In the event that there should be a material change in
-7-
8
proposed requirements as set forth in the most recent forecast, the Buying
Party, as promptly as practicable, shall update such forecast in order to
reflect such change. These forecasts shall be used for the planning convenience
and shall not be binding upon the Parties, but the Parties intend to use the
forecasts to estimate needed staffing, network provisioning and product levels
for its performance of the terms of this Agreement and shall only be responsible
for using commercially reasonable efforts to satisfy demand to the extent it
materially exceeds such forecasts. The Parties shall provide their initial
projected requirements for Services within 15 business days after the Effective
Date. All forecasts provided under this Section 2.6 shall be treated as
Confidential Information pursuant to Section 10.
2.7 Geographic Scope. It is the intent of the Parties that the Buying
Party be permitted to provide Services to Customers, on the terms and subject to
the conditions of this Agreement, in all of the geographic areas in which the
Supplying Party is now, or at anytime during the Term is then, providing
services to its Customers. Notwithstanding the foregoing, the Parties
acknowledge and understand that each is not now capable of independently
providing certain services in certain geographic areas. To the extent that
either Party desires to provide Services to customers situated in such
geographic areas and the Supplying Party has an Affiliate, strategic partner or
cooperating provider offering services therein, the Buying Party may request
that the Supplying Party obtain a quote from such Affiliate, strategic partner
or cooperating provider for such Services. Within five business days after such
request, the Supplying Party shall contact the appropriate Affiliate, strategic
partner or cooperating provider for purposes of obtaining such quote. The
provision of services under this Section 2.7 by such Affiliate, strategic
partner or cooperating partner to the Buying Party shall be the subject of
negotiation and, if reached by such parties, agreement. In the event that such
an Affiliate, strategic partner or cooperating provider agrees to provide
services under this Section 2.7, the Supplying Party shall use its reasonable
efforts to cause any such Affiliate, strategic partner or cooperating provider
to provide such services to the Buying Party at a cost no more than that which
such services are typically provided by such Affiliate, strategic partner or
cooperating provider to the Supplying Party. Notwithstanding anything in Section
7 to the contrary, the Supplying Party shall make such services available to the
Buying Party at the Supplying Party's cost of obtaining the service from the
Affiliate, strategic partner or cooperating provider. Notwithstanding anything
in this Agreement to the contrary, the Supplying Party shall not be obligated to
provide Services to a Buying Party's customer or Third Party in those geographic
areas in which the Supplying Party is not offering services unless (i) it has an
Affiliate, strategic partner or cooperating provider in a particular geographic
area, and (ii) such Affiliate, strategic partner or cooperating provider agrees
to provide such services on terms and conditions to the Buying Party's
satisfaction.
2.8 Service Contracts. To the extent that the Services are standard and
not customized to the specifications of the other Party, each Party shall
execute the other Party's standard reseller agreement for services, on the terms
and subject to the conditions set forth in such agreement except that the terms
and conditions of this Agreement shall have precedence.
2.9 Credit Worthiness. So long as IXC is a shareholder in ATC, the
Parties shall deem each other credit worthy and no financial statements shall be
required of each other except as required by the Stock Purchase Agreement. In
the event that such shareholder relationship terminates, Buying Party shall
provide Supplying Party with financial statements including a consolidated
balance sheet of Buying Party as of the end of the most recent quarter and
consolidated statements of income and retained earnings of such quarter and the
fiscal year to date through such quarter, all in reasonable detail and certified
by Supplying Party's chief financial officer as having been prepared in
accordance with generally accepted accounting principles, consistently applied.
Buying Party shall provide updated financials as reasonably requested by
Supplying Party.
2.10 Additional Assurances. If at any time during the term of this
Agreement there is a material and adverse change in Buying Party's financial
condition or business prospects, which shall be determined by Supplying Party in
its sole and absolute discretion, then Supplying Party may demand that Buying
Party deposit with Supplying Party a security deposit (the "Security Deposit"),
pursuant to Supplying Party's standard terms and conditions, as security for the
full and faithful performance of Buying Party of the terms,
-8-
9
conditions and covenants of this Agreement; provided, however, that in no event
shall the amount of the Security Deposit ever exceed the sum of the previous two
(2) months actual invoiced amount payable by Buying Party to Supplying Party.
2.11 Certification. Each Party hereby represents and warrants that it
is certified to do business in all jurisdictions in which it conducts business
and is in good standing in all such jurisdictions. Each Party further represents
and warrants that it is certified and licensed by the proper regulatory agencies
to provide services to End-Users in those jurisdictions where such services are
to be provided as Buying Party. Buying Party shall keep all such certificates
and licenses (the "Service Compliance Certificates") current. Supplying Party
may request copies of such certificates and licenses and Buying Party shall
furnish such documentation within ten (10) days of such request. In the case of
Certificates of Good Standing, the Supplying Party will request such
certificates from appropriate jurisdiction and will supply them to Buying Party
upon receipt. Supplying Party reserves the right to refuse or withhold service
in any jurisdiction for which such certifications and licenses are not current
or supplied. Buying Party shall defend and indemnify Supplying Party from any
losses, expenses, demands and claims in connection with Buying Party's failure
to provide Supplying Party with such Service Compliance Certificates. Such
Indemnification includes costs and expenses (including reasonable legal fees)
incurred by Supplying Party in settling, defending or appealing any claims or
actions brought against it relating to Buying Party's failure to provide such
Service Compliance Certificates.
2.12 Bankruptcy. In the event of the bankruptcy or insolvency of either
party hereto or if either party hereto shall make an assignment for the benefit
of creditors or take advantage of any act or law for relief of debtors, the
other party to this Agreement shall have the right to terminate this Agreement
without further obligation or liability on its part except for payments for all
services rendered.
2.13 Insurance. Throughout the term of this Agreement and any extension
thereof, each party shall maintain and, upon written request, shall provide to
the other proof of adequate liability insurance: (i) Worker's compensation
insurance up to the amount of statutory limit in the state or states where work
is to be performed; (ii) Employer's liability insurance with a limit of not less
than $200,000 per claim with an all-states endorsement; (iii) Comprehensive
general liability insurance with a limit of not less than $1,000,000 per
occurrence for bodily injury liability and property damage liability, including
coverage extensions for blanket contractual liability, personal injury liability
and products and completed operations liability; and, (iv) Comprehensive Auto
Liability insurance with a limit of not less than $1,000,000 per accident for
Bodily Injury Liability and Property Damage Liability arising out of the
ownership, maintenance or use of any vehicle in the performance of this
Agreement.
3. SALES SUPPORT SERVICES AND TRAINING.
3.1 Pre-Sale Support and Post-Sale Implementation Support. From the
Effective Date, the Supplying Party shall offer and provide pre-sale support and
post-sale implementation support services ("Sales Support Services") to the
Buying Party's sales and technical personnel as specified in Schedule 3.1.A as
applies to ATC and Schedule 3.1.B as applies to IXC.
3.2 Dedicated Sales Support Department. The Supplying Party shall
create and manage a sales support group ("Sales Support Group") for the purpose
of providing Sales Support Services under Section 3.1. The Sales Support Group
shall be adequately staffed with knowledgeable, experienced and trained
subject-area professionals capable of providing support to Buying Party's sales
and technical personnel and customer care to Customers consistent with Schedules
3.1.A and 3.1.B.
3.3 Funding the Sales Support Group. During the Term, each Party shall
staff their Sales Support Group with a minimum of three (3) full-time
professionals at no charge to the other Party. Any additional support requested
by Buying Party shall be considered as Opportunity Consulting Services as
defined in Section 2.1.3. Buying Party shall reimburse Supplying Party for
reasonable travel and other out-of-
-9-
10
pocket expenses incurred in connection with Sales Support Services requested,
provided that the Supplying Party shall use good business judgement to minimize
such expenses.
3.4 Training. The Supplying Party shall provide training at reasonable
times and locations and at nominal expense to the Buying Party. The specific
training requirements, if any, for the Services will be addressed in the
applicable Service Description.
4. CUSTOMER SUPPORT SERVICES AND CUSTOMER SERVICE RATES.
4.1 Unless otherwise agreed to in the applicable Schedule, the Buying
Party will retain ownership of the Customer relationship, and will be
responsible for providing Customer Support services to end-user Customers. The
applicable Schedule for each Service will define procedures for escalation and
hand-off of Customer problems to the Supplying Party.
4.2 Should the Supplying Party Include Customer support in its
description for any Service, the Supplying Party will provide customer support
through its customer support group or through a Third Party (as determined by
the Supplying Party In its sole discretion) for the Services sold to Customers
as contemplated by this Agreement; provided that the Supplying Party will not be
responsible for providing customer support to any Customer purchasing Services
under a private label which exceeds the level of support which the Supplying
Party is obligated to provide to its customers pursuant to it's service
agreements for the applicable Services, as such agreements may be amended from
time to time.
4.3 Notwithstanding the foregoing, Buying Party shall be responsible
for all pricing and service plans, billing and collections with respect to
Customers.
5. RIGHTS AND RESPONSIBILITIES.
5.1 Buying Party's Use and Sales of Services.
5.1.1 Buying Party may use the Services made available to it
pursuant to this Agreement on the terms and subject to the conditions hereof,
(i) for its own account, (ii) subject to Section 5.1.2, for resale to Customers,
or (iii) subject to Section 5.1.2, for resale to Third Parties for further
resale or distribution (such Third Parties which, notwithstanding the definition
of "Third Parties" herein, include, without limitation Customers (including
those which are Affiliates of Buying Party) are referred to herein as
"Resellers"), either alone or in combination with any other products and
services. Services offered by Buying Party that incorporate MCS, VAS, and NCS
made available to it pursuant to this Agreement shall, at Buying Party's
discretion, be branded exclusively as Buying Party services or otherwise as
Buying Party shall determine. Buying Party shall specify the design of any user
interface associated with any MCS, VAS, or NCS, consistent with the preceding
sentence. Buying Party will have complete discretion to determine the prices to
be charged to Customers for the Services provided under this Agreement and
Buying Party shall be solely responsible for establishing and collecting
customer charges for services it or its Customers offer and for preparing and
mailing invoices to Buying Party's Customers. In addition, Buying Party shall be
responsible for payment of the total amounts invoiced it by Supplying Party
(except for any amounts disputed by Buying Party in good faith) regardless of
whether its customers pay Buying Party. Subject to the provisions of Section
5.4, Buying Party shall also have complete discretion to determine the other
terms and conditions on which Buying Party makes such Services available to
Customers; provided that neither Buying Party nor its customers may offer
warranties or representations for the Services that would obligate or otherwise
bind Supplying Party beyond those stated in the applicable service agreements.
Except as otherwise provided in this Agreement, except as reasonably necessary
for Supplying Party to assist Buying Party during the introduction of Services
under this Agreement, Buying Party shall provide the primary interface to its
Customers in connection with the marketing, offering or provision of Buying
Party services that incorporate the Services, including (a) providing first tier
support for non-MCS and non-VAS Buying Party services and (b) handling
communications to and business relations with Buying Party Customers related to
contractual
-10-
11
agreements, handling invoicing and payment matters, and handling inquiries and
questions from Buying Party Customers about Services.
5.1.2 Notwithstanding anything In Section 5.1.1 to the
contrary, the Parties agree that the determination of customer interfaces,
marketing, provisioning and delivery for jointly developed new product or
services offerings incorporating Buying Party services or Services as described
herein will be determined by mutual agreement.
5.1.3 Periodic Audit Rights. Supplying Party shall have the
right, upon reasonable notice and at a date and time mutually agreed upon by the
Parties, to enter the premises of Buying Party for the purpose of auditing any
of Buying Party's books of accounts, documents, records (in any media), papers
and files (the "Documents") relating to its compliance with the provisions of
this Agreement. Supplying Party shall bear the expense of the audit unless the
audit reveals that (i) the amounts collected by Supplying Party from Buying
Party hereunder are more than two (2) percent less than that which should have
been paid by Buying Party to Supplying Party, or (ii) Buying Party has not
complied with either or both of the first two sentences of Section 5.1.2, in
which case, the entire cost of the audit shall be borne by Buying Party. Payment
of any amounts found due and owing Supplying party shall be made promptly by
Buying Party upon demand by Supplying Party.
5.2 Use of Marks. Except as provided herein or by advance written
consent of the other, each of ATC and IXC agrees not to (i) display or use, in
advertising or otherwise, any of the other's Marks, (ii) permit any Affiliate to
display or use any of the other's Marks, or (iii) give permission to display or
use any of the other's Marks to any Third Party. Any use by one Party of any of
the other's Marks shall be subject to such other Party's advance approval in
writing, in its discretion, subject to compliance with guidelines provided by
it. Neither Party shall claim ownership or any other rights in any of the
other's Marks. Upon termination or expiration of this Agreement, any and all
rights or privileges granted by ATC or IXC to use any Marks shall immediately
expire and each Party shall immediately discontinue the use of such Marks.
Nothing herein shall preclude either Party from making factual references to the
other in government filings, disclosure documents and other public statements.
5.3 Introductory Marketing Campaign. Buying Party shall have complete
discretion regarding its marketing of the Services provided that such Services
are offered under Buying Party's own brand, and provided that neither Buying
Party nor its customers may offer warranties or representations for the Services
that would obligate or otherwise bind Supplying Party beyond those stated in the
applicable standard service agreements or Schedule or to make any other
warranties, promises or representations with respect to the Services. In
connection with such private label marketing activities, Buying Party shall
prominently mention Supplying Party's role in the provision of such services in
an Introductory press release, the content of which shall be mutually agreed to
by the Parties.
5.4 Provisions Applicable to End-Users
5.4.1 Buying Party's Use of Services. Buying Party's use of
Services in Buying Party's capacity as end-user of Services for its own account
shall be governed by this Agreement and any additional terms and conditions of
the applicable Schedule.
5.4.2 Agreements with Buying Party Customers Other than Buying
Party. Buying Party's agreements with Buying Party Customers (other than Buying
Party) to provision Services shall comply with applicable Supplying Party
standard terms, rules, and conditions with respect to Services unless
specifically amended by mutual consent and the terms and conditions of this
Agreement generally.
6. INFRASTRUCTURE.
6.1 Use of IXC Equipment and Facilities. Except as otherwise agreed to
by the Parties, in providing the Services to IXC under this Agreement, ATC
grants IXC right of first refusal for infrastructure,
-11-
12
equipment, facilities and services necessary for the transmission of data
(collectively, "Infrastructure") provided (i) ATC is not restricted from
purchasing such Infrastructure from IXC under contractual obligations binding on
ATC at the time the purchase decision is being considered, (ii) such
Infrastructure meets ATC's functional, technical and performance requirements,
and (iii) IXC offers such Infrastructure to ATC at a price and on terms and
conditions that, on average or taken as a whole, are competitive as compared to
those offered to ATC in good faith by other leading providers of infrastructure,
equipment, facilities, and services similar to those at the time IXC makes its
offer.
6.2 Use of ATC Support and Product Components. Except as otherwise
agreed to by the Parties, in providing the Services to ATC under this Agreement,
IXC grants ATC right of first refusal for support and product components
necessary for the delivery of Service provided (i) IXC is not restricted from
purchasing such support and product component from ATC under contractual
obligations binding on IXC at the time the purchase decision is being
considered, (ii) such support and product component meets IXC's functional,
technical and performance requirements, and (iii) ATC offers such support and
product component to IXC at a price and on terms and conditions that, on average
or taken as a whole, are competitive as compared to those offered to IXC in good
faith by other leading providers of support and product components similar to
those at the time ATC makes its offer.
6.3 Provisioning of Customers. The roles, responsibilities and
processes for the provisioning of Customer local loops and CPE will be
described in the appropriate Service Descriptions.
6.4 Interconnection of Facilities. ATC and IXC shall coordinate with
respect to (i) the definition of the interfaces between Customer, the ATC
network and the IXC network at Points of Presence, (ii) the management of
traffic routed from the premises of Customers to Points of Presence, and (iii)
access to each other's networks for the purposes of providing Services under
this Agreement. Each Party shall be responsible for the day-to-day management
of its network relating to the provision of Services, including monitoring and
taking actions necessary to remedy problems with, or disruption of, the
Services, establishment and maintenance of routing tables and routing policies
at Points of Presence, and establishment and maintenance of peering points with
the global Internet.
6.5 Customer Transfers. At any time, Buying Party shall have the right
to migrate its Customers to services as provided by itself or on its behalf by
a Third Party. The Parties shall provide all reasonable cooperation in support,
to the extent practicable, of a seamless, minimally disruptive migration of
such Customers in connection with such services (including without limitation
all Customer Information and, to the extent practicable, any necessary transfer
of customer addresses).
6.6. Interfaces. The Parties shall develop methods, procedures and
associated interfaces for cooperating on a "seamless" basis in all areas
relating to the marketing and provision of the Services, including without
limitation order processing, customer care, network monitoring and maintenance,
and problem escalation and resolution; provided, however, that, unless mutually
agreed upon, neither Party shall be obligated to provide services or support of
any kind to Customers which exceeds that which it is required to provide to its
own customers pursuant to its service agreements for the applicable comparable
services, as such agreements may be amended from time to time. The Parties
shall use commercially reasonable efforts to agree on an initial plan to
accomplish the foregoing, including appropriate training of each other's
employees, by no later than 30 days after the Effective Date. At any time
during the Term, the Parties will cooperate in good faith in connection with
inquiries concerning potential problems affecting any aspect of the provision
of Services.
7. PRICING AND PAYMENT
7.1 Services Pricing. The Parties shall at all times make sure that all
fees and other charges charged to the other Party for each of the individual
service components comprising the Services, are such that Buying Party may
maintain a gross margin when compared to normal competition. Notwithstanding
the foregoing, neither party shall be obligated to supply prices below cost.
-12-
13
7.2 Independent End-Customer Pricing and Payments. Each of the Parties
will have complete discretion regarding the prices that it charges to its
customers for its services and will be completely responsible for billing
to and payment collection from its respective Customers. Supplying Party will
invoice the Buying Party in accordance with the terms and pricing contained in
the applicable Schedule. Buying Party assumes all bad debt associated with
non-payment of any of its respective Customers.
7.3 Credits/Adjustments. Customers shall be granted service disruption
credits and adjustments, quality of service commitment credits and adjustments,
and the like as may be established by the applicable Schedules. In the event
that Buying Party, as promptly as practicable, notifies Supplying Party after
learning of the failure of Supplying Party to deliver any of the Services to any
Customer, Buying Party will be entitled to a credit representing any reasonable
adjustment requested by Buying Party and approved in advance by Supplying Party
as a result of such failure to meet customer service expectations.
7.4 Late Payment. Supplying Party invoices for amounts payable under
this Agreement shall be due within 30 days of the date of invoice. Payments not
received within thirty (30) days of the date of invoice will be considered past
due. If a dispute arises as to any portion of an invoice, Buying Party shall pay
the undisputed amount of such invoice when due and shall notify Supplying Party
in writing of the disputed amount no later than 30 days from the date of
invoice. If Buying Party does not report a dispute within the thirty (30) day
period, Buying Party shall have waived its dispute rights for that invoice.
7.5 Billing Dispute Resolution. In the event Buying Party in good faith
disputes any portion of any Supplier invoice, the IXC Authorized Representative
and the ATC Authorized Representative (as such capitalized terms are defined
herein) will first attempt in good faith to promptly resolve the dispute. If the
dispute has not been resolved by the Authorized Representatives within 14 days
after notice, or if either Party will not agree to meet within such 14-day
period, the matter will be referred to the Chief Executive Officer of IXC and
the Chief Executive Officer of ATC who will in good faith attempt to resolve the
dispute. If the dispute remains unresolved within an additional 14-day period,
the dispute shall be submitted to arbitration. Any disputed amounts resolved in
favor of Buying Party shall be credited to Buying Party's account on the next
invoice following resolution of the dispute. Any disputed amounts determined to
be payable to Supplying Party shall be due within ten (10) days of resolution of
the dispute.
In the event that any amount remains unpaid after its due date, such
amount shall be subject to an interest charge equal to the lesser of one and
one-half percent of the unpaid balance per month or the maximum rate allowed
under applicable state law and, if such amount shall not have been paid in full
within five business days of the applicable due date when no bona fide dispute
exists, Supplying Party may, without any liability to Buying Party at its
option, suspend the provision of services under this Agreement until such amount
is paid in full.
8. NO RESTRICTIONS.
Notwithstanding any other provision of this Agreement, except as
provided in Section 2.7, nothing in this Agreement shall limit or in any way
affect (i) the performance of any Party's obligations under a binding agreement
in effect as of the Effective Date (and each Party shall disclose to the other
such agreements that, to such Party's knowledge, are in effect as of such date
to the extent possible consistent with any obligations of confidentiality owing
to Third Parties), (ii) IXC's right to provide Internet services for its own
account directly to any end user or wholesale customer (subject to section 10)
or otherwise to engage in services involving packet frame relay, asynchronous
transfer mode or other Internet services, (iii) ATC's right to build, operate
and maintain its own global network, and (iv) either Party's right in any way to
market, offer or provide any products and services that are not, generally,
marketed principally as Internet services.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement shall commence on the Effective
Date and shall end on
-13-
14
the earlier of (i) the disposition by IXC of 100% of its equity in ATC, and (ii)
such earlier date as of which this Agreement expires or is terminated pursuant
to Section 9.2. In the event of termination per 9.1.(i) preceding, IXC shall
provide ATC with written notification of such and continue to provide Services
it has committed to as Supplying Party for a period of one year from the date of
such notification.
9.2 Termination.
9.2.1 Notwithstanding paragraph 9.1 preceding, either Party
may deliver to the other Party a written "Notice of Default" in the event that
the other Party has breached any Material Provision hereunder. Such Notice of
Default must prominently contain the following sentences in capital letters:
"THIS IS A FORMAL NOTICE OF A BREACH OF CONTRACT. FAILURE TO CURE SUCH BREACH
WILL HAVE SIGNIFICANT LEGAL CONSEQUENCES." A Party that has received a Notice of
Default shall have thirty (30) days to cure the alleged breach (and, if the
defaulting Party shall have commenced actions in good faith to cure such
defaults which are not susceptible of being cured during such 30-day period,
such period shall be extended (but not in excess of 90 additional days) while
such Party continues such actions to cure (the "Cure Period"). If such Party
fails to cure the breach within the Cure Period, as long as such default shall
be continuing, the non-defaulting Party shall have the right to either (i)
suspend its performance or payment obligations under this Agreement and/or any
of the Transaction Documents, (ii) seek an order of specific performance, and/or
(iii) seek the award of compensatory damages.
9.2.2 Supplying Party shall terminate, or use commercially
reasonable efforts to terminate, the access rights of any Customer as soon as
is reasonably practicable upon written notice from Buying Party to do so or upon
mutually agreed upon electronic process with receipt confirmed, but shall have
no liability in connection therewith.
9.2.3 Supplying Party shall have the right to terminate any
Customer on written notice to Buying Party (or sooner, if required by law,
provided, however that Supplying Party should thereafter provide written notice
to Buying Party) in the event of any use or alleged use by such Customer of the
Services or the infrastructure supporting Services which is in violation of any
law, regulation or treaty, any of the Usage Restrictions, either Party's Net
Abuse Policy (available at their respective web sites), any community standard
or accepted Internet policy or which results in the receipt by either Party of
any formal or informal complaint.
10. CONFIDENTIAL INFORMATION.
10.1 Nondisclosure. If either Party acquires Confidential Information
of the other, such receiving Party shall maintain the confidentiality of the
disclosing Party's Confidential Information, shall use such Confidential
Information only for the purposes for which it is furnished and shall not
reproduce or copy it in whole or in part except for use as authorized in this
Agreement. Without limiting the generality of the foregoing, neither Party shall
use the Confidential Information of the other Party to solicit the other Party's
customers or to otherwise compete unfairly with the other Party. "Confidential
Information" shall mean all information of the disclosing Party which it treats
as confidential or proprietary including, without limitation, all of the
following: (i) information concerning customers and the contractual terms under
which services are being provided to such customer by a Party; and (ii) all
customer lists and other information regarding the customers of a Party.
Confidential Information shall not include information which is or hereafter
becomes generally available to others without restriction or which is obtained
by the receiving Party without violating the disclosing Party's rights under
this Article 10 or any other obligation of confidentiality. The terms and
conditions of this Agreement shall constitute Confidential Information. IXC and
ATC shall cooperate to request confidential treatment as may be mutually agreed
by them with respect to certain terms of this Agreement and the transactions
contemplated hereby in any filing with the Securities and Exchange Commission,
any other government authority or any securities exchange or stock market.
10.2 Duration. With respect to all Confidential Information, the
Party's rights and obligations under this Article shall remain in full force and
effect following the termination of this Agreement.
-14-
15
10.3 Ownership. All materials and records which constitute Confidential
Information, other than service orders and copies of this Agreement, shall be
and remain the property of, and belong exclusively to, the disclosing Party, and
the receiving Party agrees either to surrender possession of and turn over or to
destroy and certify to the other Party the destruction of all such Confidential
Information which it may possess or control upon request of the disclosing Party
or upon the termination of this Agreement.
10.4 Injunctive Relief. The Parties acknowledge and agree that, in the
event of a breach or threatened breach by any Party of any provision of this
Article; the other Party will have no adequate remedy in money or damages and,
accordingly, shall be entitled to an injunction against such breach. However, no
specification in this Section of a specific legal or equitable remedy shall be
construed as a waiver or prohibition against any other legal or equitable
remedies in the event of a breach of this Section of this Agreement.
10.5 Legal Obligation to Disclose. Each Party shall be released from
its obligations under this Section 10 with respect to information which such
Party is required to disclose to others pursuant to obligations imposed by law,
rule or regulation or securities exchange or stock market rule; provided,
however, that prior to any such required disclosure, such Party shall, to the
extent practicable, provide written notice and consult with the other Party.
11. REPRESENTATIONS AND WARRANTIES.
11.1 By IXC. IXC represents and warrants to ATC that (i) it is a
corporation duly organized, validly existing and in good standing in the State
of Delaware; (ii) it has full corporate power and authority to own and operate
the Services it provides pursuant to this Agreement and the IXC network and to
carry on its business as presently conducted; (iii) it has, or has licensed,
sufficient right title and interest in and to the Services it provides pursuant
to this Agreement, the XXX Xxxxx (xxxxxx xxx Xxxxxx Xxxxxx) and the IXC network;
(iv) it has all requisite authority to execute and deliver this Agreement and to
carry out the transactions contemplated hereby, (v) this Agreement is a valid
and binding obligation of IXC, enforceable against IXC in accordance with its
terms except as such enforceability may be limited by laws relating to
creditors' rights generally and the exercise of judicial discretion in
accordance with general equitable principles; and (vi) the licenses granted and
obligations owed to ATC hereunder do not conflict with the rights granted or
obligations owed by IXC to any Third Party.
11.2 By ATC. ATC represents and warrants to IXC that (i) it is a
corporation duly organized, validly existing and in good standing in the State
of New York; (ii) it has full corporate power and authority to own and operate
the Services it provides pursuant to this Agreement and to carry on its business
as presently conducted; (iii) it has, or has licensed, sufficient night title
and interest in and to the Services it provides pursuant to this Agreement and
the ATC Marks (within the United States), (iv) it has all requisite authority to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby, (v) this Agreement is a valid and binding obligation of
ATC, enforceable against ATC in accordance with its terms except as such
enforceability may be limited by laws relating to creditors' rights generally
and the exercise of judicial discretion in accordance with general equitable
principles and (vi) the licenses granted or obligations owed to IXC hereunder do
not conflict with the rights granted or obligations owed by ATC to any Third
Party.
11.3 BY IXC AND ATC. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
SPECIFICALLY SET FORTH IN SECTIONS 11.1 By IXC AND 112 By ATC. THE PARTIES MAKE
NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AND THE PARTIES EXPRESSLY DISCLAIM AND EXCLUDE ALL OTHER
REPRESENTATIONS AND WARRANTIES OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTY TO THE OTHER PARTY OR ANY OTHER
PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION,
QUALITY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF
ANY INTERNET SERVICE OR ANY OTHER SERVICE PROVIDED
-15-
16
HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
12. LIMITATION OF LIABILITY.
12.1 Limitation of Liability. Except for direct damages otherwise
specifically provided for in this Agreement, in no event shall ATC or IXC be
liable for any special, incidental, direct, indirect, punitive, reliance or
consequential damages, whether foreseeable or not, arising under this Agreement
or from any breach or partial breach of the provisions of this Agreement or
occasioned by any defect in the Services or other service provided hereunder,
delay in availability of the Services or any service provided hereunder, failure
of the Services or other service provided hereunder, interruptions or outages of
the IXC network or any other cause whatsoever or arising out of any act or
omission by ATC or IXC, as applicable, its employees, servants and/or agents,
including but not limited to, damage or loss of data, property or equipment,
loss of profits or revenue, cost of capital, cost of replacement services, or
claims of customers for service interruptions or transmission problems.
12.2 Release; Indemnification. Each Party (each Party in such capacity
being referred to as the "Releasing Party) releases, assumes and agrees to
indemnify defend, protect and save the other Party harmless from and against any
claim, damage, loss, liability, cost and expense (including reasonable
attorneys' fees) in connection with any loss or damage to any physical property
or facilities of the Releasing Party or any injury to or death of any Person
arising out of or resulting in any way from the negligence or misconduct of the
Releasing Party or its employees, servants, contractors and/or agents.
13. INDEMNIFICATION.
13.1 Indemnification Obligations. ATC and IXC (hereinafter where either
has undertaken the action or inaction to be indemnified against shall be known
as the "Indemnifying Party") agree to assume all liability for and indemnify,
defend, release, and hold harmless the other Party or any third Party claiming
through the other Party, from and against all liability, loss, cost, damage,
expense or cause of action, of whatsoever character, or injury or death of any
Person and damage to or destruction of any property, including, without
limitation, third Parties and all related expenses, including, but not limited
to, reasonable attorneys' fees, investigators' fees and litigation expenses and
costs of enforcing this Section 13 arising out of or relating to, in whole or in
part, any of the following:
(i) claims for libel, slander, infringement of copyright
or unauthorized use of a trade secret, trade name or
service xxxx that results from the transmission of
material over the ATC or IXC network by the
Indemnifying Party, authorized representatives of the
Indemnifying Party or other Persons not associated
with, or related to, either ATC or IXC; or
(ii) claims of any Third Party arising out of the
negligent or willful act or omission of the
Indemnifying Party or its agents, servants,
employees, contractors or representatives (other than
ATC, if IXC is the Indemnifying Party, or IXC, if ATC
is the Indemnifying Party); or
(iii) claims for patent infringement arising out of the use
of the ATC or IXC network by the Indemnifying Party
or any Person authorized by the Indemnifying Party or
resulting from the acts of the Indemnifying Party or
the Indemnifying Party's representatives in combining
the ATC or IXC network with the facilities of the
Indemnifying Party or others, or using the ATC or IXC
network either alone or in connection with that of
the Indemnifying Party or others; or
(iv) claims, except as otherwise set forth herein, for the
material breach of or failure to comply, in any
material respect, with any term or condition of this
Agreement by the
-16-
17
Indemnifying Party or its officers, employees or
invitees; or
(v) claims resulting from patent or trade secret
infringement or infringement or unauthorized use of
trade secrets or trade name by the Indemnifying
Party in connection with this Agreement.
In addition, IXC will defend, indemnify and hold ATC harmless
from and against any claim or threat of claim by an ATC Customer or an ATC
Reseller which is based on any warranty, promise or representation made by ATC
as part of a service agreement and for which IXC is responsible in accordance
with the terms of this Agreement. Similarly, ATC will defend, indemnify and hold
IXC harmless from and against any claim or threat of claim which is based on any
warranty, promise or representation made by ATC to a Third Party for which IXC
is not responsible in accordance with the terms of this Agreement.
PROVIDED, HOWEVER, NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
(OR TO ANY THIRD PARTY CLAIMING THROUGH SUCH OTHER PARTY) FOR CONSEQUENTIAL
INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES AND THE FOREGOING INDEMNITIES SHALL
NOT APPLY WITH RESPECT TO SUCH DAMAGES.
13.2 Notices and Defense. The Indemnifying Party shall provide the
other Party with notice of any such claim by a Third Party and assure the
defense of such claim, on the terms and subject to Sections 13.1 preceding.
14. NON-SOLICITATION:
a. From the date hereof until three years after the
termination of this Agreement, neither IXC nor any of its Affiliates will,
directly or indirectly, either alone or in association with others in any part
of the world induce, request, encourage or assist any employee of ATC or its
Affiliates to terminate his or her employment with ATC or to join with or become
employed by, render services to or otherwise be engaged by IXC or any of their
Affiliates in any direct or indirect capacity.
b. From the date hereof until three years after the
termination of this Agreement, neither ATC nor any of its Affiliates will,
directly or indirectly, either alone or in association with others in any part
of the world induce, request, encourage or assist any employee of IXC or its
Affiliates to terminate his or her employment with IXC, or to join with or
become employed by, render services to or otherwise be engaged by ATC or any of
its Affiliates in any direct or indirect capacity.
c. If, at the time of enforcement of Section 14, a court shall
hold that the duration, scope, geographic area or other restrictions stated
herein are unreasonable under circumstances then existing, the Parties agree
that the maximum duration, scope, geographic area or other restrictions deemed
reasonable under such circumstances by such court shall be substituted for the
stated duration, scope, geographic area or other restrictions.
d. In the case that a Party receives a legitimate,
self-initiated request for consideration of employment by any employee of the
other Party, the receiving Party shall immediately notify the other Party.
Nothing in this Section 14 shall be deemed to prohibit the employees of either
Party from free-will execution of their rights.
e. Notwithstanding the foregoing, in the event the authorized
representatives of the Parties determine that it is in their mutual best
interests to terminate an employee of one party so that such employee may be
hired by the other in a role furthering the purposes of this Agreement, and
agree to such actions in writing, such actions will not be construed as
violation of this Section 14.
-17-
18
15. MISCELLANEOUS.
15.1 Independent Contractors. The Parties are acting as independent
contractors and under no circumstances shall any of the employees of one Party
be deemed the employees of the other for any purpose. Except as otherwise
expressly provided in this Agreement, this Agreement does not constitute ether
Party as the agent or legal representative of the other Party and does not
create a partnership or joint venture between the Parties. Except as otherwise
expressly provided in this Agreement, neither Party shall have any authority to
act for the other Party in any agency or other capacity, to make commitments of
any kind for the account of, or on behalf of, the other Party or to contract for
or bind the other Party in any manner whatsoever. This Agreement confers no
rights of any kind upon any Third Party.
15.2. Force Majeure. Notwithstanding any provision in this Agreement to
the contrary, neither Party shall be liable for failure to fulfill its
obligations hereunder (except with respect to payment or other monetary
obligation or as otherwise specifically set forth herein) if such failure is due
to causes beyond its reasonable control, including, without limitation, actions
or failures to act of the other Party or, acts of God, flood, fire, storm,
catastrophe, governmental prohibitions or regulations, viruses which did not
result from the acts or omissions of such Party, its employees or agents,
national emergencies, acts of public enemies, national emergency, insurrections,
riots or wars, breakdown of or damage to plants or equipment or facilities
(other than arising out of the neglect of or mishandling by such Party), the
relevant portion of the Internet is down due to a technology failure (other than
arising out of the neglect of or mishandling by such Party), failure of a
supplier to supply necessary materials or equipment in a timely manner,
destruction of property, embargoes, boycotts, governmental legislation or
regulations, orders or acts of civil or military authorities, governmental acts
or orders of courts or administrative agencies, or strikes, lockouts, work
stoppages or other labor difficulties. The time for any performance required
hereunder shall be extended by the delay incurred as a result of such act of
force majeure and each Party shall act with diligence to correct such force
majeure.
15.3 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to a Party under this Agreement shall impair any such
right, power or remedy of such Party nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of either Party of any breach or default under this
Agreement, or any waiver on the part of either Party of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to a Party, shall be cumulative
and not alternative.
15.4 Binding Agreement. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors and
permitted assigns. No Person or entity other than the Parties hereto (and their
respective successors and permitted assigns) is or shall be entitled to bring
any action to enforce any provision of this Agreement against either of the
Parties, and the covenants and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the Parties or
their respective successors and assigns as permitted hereunder.
15.5 Additional Actions, Documents and Information. Each of the
Parties agrees that it will, at any time, prior to, at or after the date hereof,
take or cause to be taken such further actions, and execute, deliver and file or
cause to be executed, delivered and filed such further documents and instruments
and obtain such consents, as may be reasonably requested in order to fully
effectuate the purposes, terms and conditions of this Agreement
15.6 Notices. (a) All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by certified or
registered mail (return receipt requested), express air courier, charges
prepaid, or facsimile addressed as follows:
-18-
19
TO IXC with a copy to:
IXC Internet Services, Inc. Xxxxxxx & XxXxxxxx
1122 S. Capital 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000 Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Senior Counsel Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000 Facsimile: (000)000-0000
To ATC: With copy to:
Applied Theory Communications, Inc. Xxxxx Xxxxxxxxxx LLP
000 Xxxxxx Xxxxx Xxxx 0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxxxxx, XX 00000 Xxx Xxxx, XX 00000-0000
Attn: Contracts Manager Attention: Xxxxx Xxxxxx
Facsimile (000)000-0000 Facsimile: (000)000-0000
or to such other address as either Party shall have furnished to the other in
writing.
(b) If a notice is given by either Party by certified or
registered mail, it will be deemed received by the other Party on the fifth
business day following the date on which it is deposited for mailing. If a
notice is given by either Party by air express courier, it will be deemed
received by the other Party on the next business day following the date on which
it is provided to the air express courier. If a notice is given by facsimile, it
will be deemed received by the other Party after confirmation of receipt.
Notwithstanding the foregoing, any payments made under this Agreement shall be
deemed received only when actually received.
15.7 Attorneys' Fees. If any arbitration is commenced between the
Parties regarding the performance of this Agreement, the prevailing Party shall
be entitled, in addition to such other relief as may be granted, to a reasonable
sum for its attorneys' fees in such proceeding and for the expenses and costs of
such proceeding as the arbitrator may determine.
15.8 Assignment. No assignment of this Agreement or of any rights or
obligations hereunder may be made by either Party without the prior written
consent of the other Party hereto and any attempted assignment without the
required consent shall be void; provided, however, that notwithstanding the
foregoing, (i) each Party shall have the right to pledge, assign or otherwise
transfer this Agreement and its rights hereunder, in whole or in part, as
collateral security to any lender, and (ii) each Party shall have the right to
assign or transfer this Agreement and its rights hereunder, in whole or in part,
to any direct or indirect wholly-owned subsidiary of that Party or to any Person
into which that Party may be merged or consolidated or which purchases all or
substantially all of the assets of that Party, provided, however, that (a) such
subsidiary or Person agrees to be bound by the terms of this Agreement and (b)
any such assignment or transfer shall not relieve that Party from any liability
or obligation under this Agreement.
15.9 No Third Party Beneficiaries. No provision to this, Agreement is
intended, nor shall any be interpreted, to provide or create any Third Party
beneficiary rights or any other rights of any kind in any client, customer,
affiliate, shareholder, partner of any Party or any other Third Party; unless
specifically provided otherwise herein, and except as so provided, all
provisions hereof, shall be personal solely between the Parties to this
Agreement.
15.10 Export Controls. The Parties agree and acknowledge that any
export of the Services and the subsequent use thereof is subject to U.S. export
control laws and regulations. The Buying Party shall not
-19-
20
directly or indirectly transfer the Services, or the documentation relating
thereto, to any country or location outside of the United States without
obtaining the prior written consent of the Supplying Party.
15.11 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, such provision shall be construed so as to
render it enforceable and effective to the maximum extent possible in order to
effectuate the intention of this Agreement; and the validity, legality and
enforceability of the remaining provisions hereof shall not in anyway be
affected or impaired thereby.
15.12 Public Announcements. Each Party shall have the right to review,
comment upon and approve any publicity materials, press releases or other public
statements by the other that refer to, or that describe any aspect of, this
Agreement made prior to, or within 90 days after, the Effective Date; provided,
however, that with respect to disclosure documents required under the Securities
Exchange Act of 1934, as amended, subject to the last sentence of this Section
15.12, each Party shall only have the right to prior review and to comment upon
the other Party's disclosure documents. Each Party agrees that it will not issue
any such publicity materials, press releases or public statements without the
prior written approval of the other Party. The provisions of this section shall
survive termination of this Agreement for a period of two years, except for the
last sentence hereof, which shall survive as may be mutually agreed by them for
the Term.
15.13 Expenses. Each Party shall pay its own legal and other costs
incurred in connection with this Agreement and in the preparation for and
consummation of the transactions provided for herein.
15.14 Taxes. Buying Party shall be liable for and shall reimburse
Supplying Party for all taxes and related charges, however designated, resulting
from the provision of Services as contemplated hereby, including federal, state,
provincial or local sales; use or value-added taxes (VAT); excise taxes, imposed
in connection with or arising from the provision of Services; Universal Service
Fund and Lifeline Assistance Charges (Presubscribed line charges) set forth in
the National Exchange Carrier Association (NECA) Tariff FCC#5; sections *.5,
8.5.2 and 17.1.4(A) & B), as the same may be amended from time to time, or any
successor tariffs or sections, with respect to any ANI's subscribed to; any
telecommunications relay service charges required by the Americans with
Disabilities Act or otherwise (both federal and state); interexchange carrier
fees payable to the FCC under the Omnibus Budget Reconciliation Act of 1993 or
otherwise; payphone service provider compensation as determined by the FCC in CC
Docket No. 96-128; universal service fund charges, intraLata compensation
charges; and other federal or state fees or charges imposed on Supplying Party.
Supplying Party shall furnish documentation to support the fees or charges
payable by Buying Party pursuant to this Section 15.14. In no event shall either
party be obligated to pay income taxes levied upon the other's not income or any
real or personal property assessed against Supplying Party or Supplying Party's,
property, including any gross receipts taxes asses in lieu of net income or
property taxes, provided that, if the terms of the relevant statute or ordinance
imposes such gross receipts tax upon Buying Party. then Buying Party shall be
liable for such tax.
15.15 Tax Exemption Certificates. Buying Party shall furnish to
Supplying Party valid and appropriate tax exemption certificates for all
applicable jurisdictions (federal, state and local) in which it performs
customer billing. Buying Party is responsible for properly charging tax to its
subscribers and for the proper and timely reporting and payment of applicable
taxes to the taxing authorities and shall defend and indemnity Supplying Party
from payment and reporting of all applicable federal, state and local taxes,
including, but not limited to, gross receipts taxes, surcharges, franchise fees,
occasional, excise and other taxes (and penalties and interest thereon),
relating to the Services. Such indemnification includes costs and expenses
(including reasonable attorneys fees) incurred by Supplying Party in settling,
defending or appealing any claims or actions brought against it relating to said
taxes. If Buying Party fails to provide and maintain the required certificates,
Supplying Party may charge Buying Party and Buying Party shall pay such
applicable taxes. The amounts payable by Buying Party under this Agreement do
not include any state or local sales or use taxes, or utility taxes, however
designated, which may be levied on the goods and services provided by Supplying
Party hereunder. With respect to such taxes, if applicable, Buying Party shall
furnish Supplying Party with an appropriate exemption certificate or pay to
Supplying Party upon, timely presentation
-20-
21
of invoices therefore, such amounts thereof as Supplying Party may be by law
required to collect of pay. Any and all other taxes, including but not limited
to franchise, net or gross income, license, occupation, and real or personal
property taxes shall be timely paid by Supplying Party. Buying Party shall pay
to Supplying Party any such taxes that Supplying Party may be required to
collect or pay.
15.15 Survival of Obligations. The Parties' rights and obligations
that, by their nature, would continue beyond the termination, cancellation, or
expiration of this Agreement, shall survive such termination, cancellation or
termination.
15.16 Titles and Subtitles. The titles of the Articles and Sections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
15.17 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Texas without reference to its principles of
conflicts of laws.
15.18 Subject to Laws. This Agreement and the Services provided are
subject to, and the parties agree to comply with, all applicable federal, state,
and local laws, and regulations, rulings and orders of governmental agencies,
including, but not limited to, the Communications Act of 1934, the
Telecommunications Act of 1996, the Rules and Regulations of the Federal
Communications Commission ("FCC") and state public utility or services
commissions ("PSC"), tariffs and the obtaining and continuance of any required
certification, permit, license approval or authorization of the FCC and PSC or
any governmental body, including, but not limited to regulations applying to
feature group termination and Letter of Agencies ("LOAs").
15.19 Permits, Authorizations and Filings. Supplying Party shall take
all necessary and appropriate steps, as soon as possible, to procure the
appropriate permits, approvals, and/or authorizations, if any, to deliver
Services hereunder to Buying Party from FCC, PSC or other federal or state
agency. In the event that Supplying Party cannot obtain all necessary federal,
state or local authority to provide Services hereunder, Supplying Party shall
promptly give written notice thereof to Buying Party and such notice shall
constitute termination, without liability of either party hereto, of obligations
to provide the affected Service(s).
15.20 Dispute Resolution
(a) If any controversy or claim arises out of or relates to
this Agreement or with respect to an alleged breach of the terms hereof, subject
to Section 15.11, above, ATC and IXC shall seek to resolve the matter amicably
through discussions between themselves. The parties shall attempt to resolve all
controversies, claims or breaches at the operational level, and in the event a
resolution cannot be reached, such controversy, claim or breach will be referred
progressively to higher levels within each party, to their respective
chairpersons. It the parties fall to resolve such controversy, claim or breach
within thirty (30) days by amicable arrangement and compromise, either party may
seek arbitration as set forth below but only within four years of the occurrence
of the events giving rise to, or the accrual of, such controversy, claim or
breach.
(b) Except as provided in Section 15.11, above, any
controversy or claim arising out of or in relating to this Agreement or a breach
of this Agreement, shall be finally settled by binding arbitration IN CHICAGO,
ILLINOIS in accordance with the J.A.M.S./ENDISPUTE Arbitration Rules and
Procedures ("Endispute Rules"), as amended by this Agreement. If possible, the
parties shall appoint by mutual agreement, as the arbitrator, an attorney
experienced in telecommunications, securities law and transactional matters. If
such agreement cannot be reached, the arbitrator shall be such type of attorney
and shall be chosen under the Endispute Rules. The parties shall share the costs
of arbitration, including the fees and expenses of the arbitrator, equally
unless the arbitration award provides otherwise or except as provided in Section
7.2. Each party shall bear the cost of preparing and presenting its case. The
parties agree that this provision and the arbitrator's authority to grant relief
shall be subject to the United States Arbitration Act, 9 U.S.C. 1-16 at seq.
("USAA"), the provisions of this Agreement, and the ABA-AAA
-21-
22
Code of Ethics for Arbitrators in Commercial Disputes. The parties agree that
the arbitrator shall have no power or authority to make awards or issue orders
of any kind except as expressly permitted by this Agreement, and in no event
shall the arbitrator have the authority to make any award that provides for
punitive or exemplary damages. The arbitrator's decision shall follow the plain
meaning of relevant documents, and shall be final and binding. The award may be
confirmed and enforced in any court of competent jurisdiction. All post-award
proceedings shall be governed by the USAA.
15.21 Entire Agreement/Amendments. This Agreement and the Reciprocal
Confidentiality Agreement constitutes the full and entire understanding and
agreement between the Parties with regard to the subjects hereof and supersedes
all prior oral and written agreements, commitments and understandings with
respect to such matters. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated, except by a written instrument signed
by the Parties hereto.
15.22 Legal Construction. In the event one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein. In the event of any conflict between the provisions
of these Terms & Conditions and the applicable Supplements, Exhibits, Schedules,
and Service Descriptions, the conflict shall be resolved by reference to the
following order of priority of interpretation: 1) Service Descriptions, 2)
Schedules, 3) Exhibits, 4) Supplements; and 5) Terms & Conditions. Not
withstanding the foregoing, no Exhibit requiring execution shall be binding
unless and until an officer of Buying Party has executed such Exhibit.
15.23 No Personal Liability. Each action or claim of any party arising
under or relating to this Agreement shall be made only against the other party
as a corporation, and any liability relating thereto shall be enforceable only
against the corporate assets of such party. No party shall seek to xxxxxx the
corporate veil or otherwise seek to impose any liability relating to, or arising
from, this Agreement against any shareholder, employee, officer or director of
the other party. Each of such persons is an intended beneficiary of the mutual
promises set forth in this Section and shall be entitled to enforce the
obligations of this Section.
15.24 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each counterpart shall be deemed to be an original,
and all counterparts individually or together shall constitute one and the same
instrument.
15.25 Schedules. Schedules 2.1.1.A, 2.1.1.B, 2.1.2.A, 2.1.2.B, 2.1.3,
2.1.4.A, 2.1.4.B, 2.3.A, 2.3.B, 3.1.A, 3.1.B, and 6.2 to this Agreement,
attached hereto, and as may be modified from time to time by mutual consent, are
incorporated herein by reference,
BOTH Parties represent and warrant that the Person whose signature appears below
is duly authorized to enter into this Agreement on behalf of the Party.
IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE
EFFECTIVE DATE:
AppliedTheory Communications, Inc. IXC Internet Services, Inc.
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ---------------------------
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxx
--------------------------- ---------------------------
Title: President and COO Title: Vice President
-------------------------- ---------------------------
Date: 1/26/99 Date: 1/26/99
-------------------------- ---------------------------
-22-
