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EXHIBIT 6.15
MegaWorld Inc.
GENERAL TERMS AND CONDITIONS FOR CUSTOMER AGREEMENTS
This agreement is made as of October 19th, 1999, by and between MEGAWORLD, INC.
("MEGW"), a Delaware corporation with offices at 0000 X. Xxxxxxx Xxxxxxx Xx.,
Xxxxxxx, XX 00000, XXX, and WECU, INC, a West Indies corporation with offices at
Suite 110, Heritage Plaza, Nevis, West Indies. ("Customer").
I. SERVICE: "MEGW" agrees to provide Enhanced Messaging Services, local and long
distance message transmission services [more fully described on Schedule A
attached hereto and made a part hereof,] within the territory (the "Territory")
set forth on Schedule A attached hereto and made a part hereof ("Schedule A")
including transmission, switching and messaging facilities necessary to transmit
and terminate Customer's enhanced messaging services, local, toll, and long
distance message traffic to specific points within the Territory. Customer shall
pay for and accept such services on a nonexclusive basis in accordance with the
further terms of this Agreement.
II. TERM: This Agreement shall commence on the date set forth above [or such
earlier date as Customer shall begin receiving the services contemplated under
this Agreement in the ordinary course of its business. Subject to Section III,
the initial term of this Agreement shall expire one (1) year from the date
hereof (the "Initial Term"). Upon expiration of the Initial Term, this Agreement
shall automatically be renewed for successive one (1) month periods, unless
either party shall notify the other in writing at least five (5) days in advance
that it does not wish this Agreement to be renewed.
III. TERMINATION: "MEGW" or Customer may terminate this Agreement, and/or
terminate or suspend any service provided to Customer under it, at any time
without liability upon ten (10) days prior written notice. Without limiting the
foregoing, "MEGW" may terminate this Agreement without liability on five (5)
days prior written notice to Customer for any material breach of this Agreement
including, but not limited to, a failure by Customer to pay in a timely manner
any undisputed charges for services rendered. In addition, "MEGW" may terminate
this Agreement and/or terminate or suspend any service to Customer immediately
and without notice or liability in the event that "MEGW" in its reasonable
judgement deems such action necessary in order to protect or preserve its
network. The Agreement will terminate immediately without liability in the event
that "MEGW" determines that its network or services are being utilized for
illegal activities defined by United Sates Federal Law or violates any Federal
Communication Commission laws directly related to the rules and regulations of
Section 214, Section 63.18(e)(1), and Section 63.18(e)(2)
IV. CONNECTIONS: Connection by Customer to a network designated by "MEGW"
("Network") shall be made at the point(s) of presence ("POP") set forth on
Schedule A. Customer shall be responsible for the coordination of service, and
the payment of all charges and costs reasonably necessary, to effect such
connection.
V. CHARGES AND PAYMENTS:
A. CHARGES: Customer shall pay the undisputed charges for the services
rendered to it by "MEGW" in accordance with Schedule A. Customer understands
and agrees that such charges may be adjusted prospectively to the extent
mandated by any regulatory authority to which "MEGW" is subject.
Additionally, "MEGW" may adjust the rates reflected on Schedule A at any time
on five (5) days written notice to the Customer.
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B. LENGTH: Unless otherwise stated on Schedule A, all call lengths shall be
rounded up to the next tenth of a minute. International calls shall be billed
in 60 second minimums, domestic outbound at 60 second increments. "MEGW"
shall have the right to adjust the call lengths applicable to Customer
hereunder in a corresponding manner upon written notice to the Customer.
C. PAYMENT TERMS: "MEGW" shall provide invoices to Customer for services
provided hereunder every (5) days, or at such longer intervals as "MEGW" may
elect. Unless otherwise agreed, payment of all undisputed invoiced amounts to
Customer shall be made within five (5) business days after receipt of invoice
without right of setoff or adjustment except to the extent Customer and
"MEGW" have entered into a bi-directional relationship in which event the
parties shall set off and credit competing invoices and only then resulting
net amount shall be subject to the further terms hereof. All payments shall
be made in U.S. dollars. "MEGW" will be under no obligation to negotiate any
disputes while any balance remains overdue. Late charges in the amount of
eighteen (18%) percent per annum of the outstanding amount of Customer's
account shall be payable monthly on any past due amounts and shall continue
to accrue and remain due and payable until all undisputed amounts due have
been paid in full. In the event that "MEGW" shall retain an agency or
attorney for the purpose of collecting amounts owed by Customer, Customer
shall be obligated to pay all such amounts, any accumulated late payment
charge, and "MEGW's" expenses of collection, including but not limited to
reasonable attorneys; fees which attorney fees may be based on a percentage
of the amount due not to exceed thirty-three (33%) percent thereof. If
Customer in good faith disputes in writing the amount or appropriateness of a
charge including an invoice from "MEGW", Customer shall notify "MEGW" of the
disputed charge and provide documentation reasonably requested by "MEGW" to
resolve the dispute. Such payments, excluding the disputed amount shall be
paid by the due date set forth in this Agreement. Customer and "MEGW" shall
exercise reasonable, good faith effort to resolve the disputed charges.
Failure to contest a charge within forty-five (45) days of the date of the
invoice shall create an irrefutable presumption of correctness of the charge,
absent manifest error.
D. ESTIMATED PAYMENTS: If the Order Information section of this Agreement
indicates that estimated payments are required, "MEGW" will notify the
Customer on the last day of the "Estimated Usage Period", as defined in the
Order Information Section of charges incurred by the Customer during such
period. The Customer will pay "MEGW" such estimated amount ("Estimated
Payment") no later than the Payment Due Date [as defined in the Order
Information Section]. "MEGW" will provide an invoice for the usage charges
actually incurred that Month less that Month's Estimated Payment; provided,
however, that if a minimum Monthly payment obligation applies for that Month
and such minimum has not been met, then the invoice amount will be that
Month's minimum payment obligation less that Month's Estimated Payment. The
Customer will pay the invoiced amount within the Payment Period.
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VI. CUSTOMER'S RESPONSIBILITIES: In furtherance of this Agreement, Customer
shall:
A. Be Responsible for and pay any and all local, state, or federal taxes or
charges in the nature of taxes imposed by any governmental authority or
regulatory agency in addition to the charges required by "MEGW" pursuant to
this Agreement;
B. Obtain at its own expense any governmental or regulatory licenses,
consents or approvals with respect to the utilization of "MEGW's" Services
and any Network as contemplated by this Agreement;
C. Examine and review all technical aspects of "MEGW's" system and the
system of any Network in order to assure itself that its transmitting,
receiving, and switching equipment is compatible with all "MEGW's" and such
Network's equipment and systems prior to any linkup with "MEGW's" and such
Network's system;
D. Upon "MEGW's" request, promptly furnish any technical information or
specifications relating to its system as may be reasonably required by
"MEGW" or the Network.
E. Not permit or suffer the use of "MEGW's system or facilities for any use
or purpose not permitted by law;
F. Be responsible for all charges, materials, equipment, and labor to
connect Customer's network with "MEGW's" system and/or the Network at the
designated POP, subject to "MEGW" and the Network's prior review of any
such plans or arrangements.
G. Be responsible for billing and collection of all accounts, customers or
end users to whom or which Customer or any of Customer's customers provide
services.
H. Be responsible and pay all costs, claims, and damages, if any, arising
from fraudulent calls of any nature which may be made by any customer or
end user of Customer or any customer or end users of Customer's customers
or end users using services provided by "MEGW".
I. Not use or permit the use of any tradename, trademark, service xxxx,
brand name, logo or other intellectual property right of "MEGW" without
"MEGW's" prior written consent.
VII. FINANCIAL REPORTS: If the Order Information section of this Agreement
indicates that financial reports are required, within forty five (45) days after
the end of each calendar quarter, the Customer will provide "MEGW" with a
written report updating the Customer's financial status ("Quarterly Report"),
and within ninety (90) days after the end of each calendar year, the Customer
will provide an updated consolidated unaudited balance sheet and income
statement for Customer for such quarter. The Customer represents and warrants
that each Quarterly Report will be true and correct in all material respects and
will not contain any material misstatement of omission and that the quarterly
and annual financial statements will be prepared in accordance with generally
accepted accounting principles consistently applied and will present fairly in
all material respects the financial condition of Customer as of such dates and
for the periods then ended.
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VIII. SECURITY DEPOSITS: If the Order Information section of this Agreement
indicates that security deposits are required, each required security deposit
will either be in cash (paid by certified check or via wire transfer of
immediately available funds) or an irrevocable stand-by Letter of Credit in a
form and from a financial institution reasonable acceptable to "MEGW". The
"Initial Security Deposit" amount will be provided prior to the initiation of
service. Thereafter, if requested in writing by "MEGW" the Customer will add
additional amounts to the Initial Security Deposit such that the total amount of
security deposit being held by "MEGW" at all times is at least equal to the
"Continuing Security Deposit". The Customer provide any such required additional
amounts within twenty-four (24) business hours after receiving "MEGW's" written
request. "MEGW" will refund or release, as applicable, any security deposit it
is holding (plus, if the security deposit is in the form of cash, accrued
interest at the applicable rate set by regulation, of the state in which "MEGW"
invoices the Customer, or if interest at the applicable rate set by regulation,
"MEGW's" then-prevailing interest rate for security deposit refunds) if the
following conditions are met by the Customer: (i) for the entire "Deposit
Release Period", the Customer pays "MEGW" in full when each payment is due; (ii)
"MEGW" has determined that the Customer's Quarterly Reports covering the Deposit
Release Period indicate that there has been no material adverse change in
Customer's financial condition and (iii) Customer is not otherwise in breach or
default of any of its obligations under this Agreement. If "MEGW" does not
refund or release the security deposit during the Term as set forth above, the
security deposit will be refunded or released, as applicable, at the later of
the Term as set forth above, the security deposit will be refunded or released,
as applicable, at the later of the end of the Term and when all of Customer's
obligations to "MEGW" have been paid in full. If, at any time during the term of
the Agreement, "MEGW" determines that there has been a materially adverse change
in Customer's financial condition "MEGW" may require Customer to provide a
security deposit or an additional security deposit in an amount to be determined
by "MEGW" The Customer shall provide any such required amounts within five (5)
business days after receiving "MEGW's" written request therefore. "MEGW" may
offset against any Security Deposit provided hereunder any amounts that are not
paid when due, without prior notice to Customer, and upon notice from "MEGW",
Customer shall within twenty-four (24) business hours deliver to "MEGW" an
additional security deposit in an amount determined by "MEGW".
IX. WARRANTY: "MEGW" warrants to Customer that it will provide the same quality
of service it provides to other wholesale Customers, which services shall at a
minimum meet minimum standards required by applicable law or regulation.
EXCEPT FOR ANY EXPRESS WARRANTIES STATED IN THIS AGREEMENT, "MEGW" DISCLAIMS ALL
WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTIBILITY AND FITNESS AND OF FITNESS FOR A PARTICULAR PURPOSE WHETHER SUCH
WARRANTIES ARE MADE BEFORE OR AFTER THE EXECUTION HEREOF. THE STATED WARRANTIES
HEREIN ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF "MEGW" FOR
DAMAGES INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF "MEGW"
SERVICE. IN NO EVENT SHALL "MEGW" BE LIABLE TO CUSTOMER FOR SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF MEGAWORLD'S PERFORMANCE UNDER
THIS AGREEMENT. IT IS EXPRESSLY UNDERSTOOD THAT THE SOLE REMEDY OF CUSTOMER FOR
BREACH OF THIS AGREEMENT BY "MEGW" OR FOR ANY DAMAGE TO CUSTOMER OR OTHER PERSON
CLAIMED TO HAVE RESULTED FROM CUSTOMER'S RESALE OF "MEGW" SERVICE HEREUNDER OR
FROM THE USE OF "MEGW'S" SERVICE IS CREDITS FOR SERVICE OUTAGE OR INTERRUPTION
AS SET FORTH IN THIS AGREEMENT AND THE SERVICE SUPPLEMENTS.
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X. FORCE MAJEURE: "MEGW" shall not be liable for any default or breach of
obligation or failure, interruption, or diminution of service in the event that
such default, breach, failure, interruption or diminution is the result of an
act of God, natural disaster, fire civil or military authority, insurrection,
riot, war, national emergency, strike or other labor dispute, vandalism, power
failure, cut cable, failure of other Customers or exchanges, change in "MEGW'
underlying Customer contract or rate structure, flood, explosion, change of law,
order, regulation of any governmental authority or other cause out of "MEGW's"
reasonable control.
XI. LIMITATION OF LIABILITY: Without limiting the provisions of Sections X or XI
hereof, "MEGW" shall not be responsible or liable for any interruption,
diminution, or failure of service, in whole or in part, and, in no event, shall
"MEGW" be responsible or liable for any special, indirect incidental or
consequential damages incurred by Customer or any user of Customer's service. In
addition, "MEGW" shall not be responsible or liable for any interruption,
enhanced services content, information provided, services provided, diminution,
or failure of service caused by any third party, including, but not limited to,
any other Customer of Customer or "MEGW's" message traffic
XII. CONFIDENTIALITY: The terms of this Agreement and any confidential
information relating to "MEGW", Customer, or their respective Customers which
are furnished or revealed pursuant to, or in connection with, this Agreement are
deemed to be confidential with the exception of (i) confidential information
previously known to a party; (ii) is the public domain other than through
wrongful disclosure of a party. Neither party shall at any time use any such
information except in connection with performance of its obligations under this
Agreement, or disclose any of the terms of this Agreement nor any such
previously described confidential information to any other third party except
(i) to the professional advisors of either party who require such information in
connection with the performance of such party's performance of its obligations
hereunder, and who have executed written agreements pursuant to which they agree
to be bound by the provisions of this Section XIII as may be required by
applicable law; and (ii) as may be required by applicable law; provided, that
the disclosing party shall give the other party reasonable notice prior to such
disclosure to permit the other party to seek an appropriate protective order,
stay or other exemption.
The parties agree that a breach or threatened breach of the terms of this
article may result in irreparable injury to the non-breaching party for which a
remedy in damages would be inadequate. The parties agree that in the event of
breach or threatened breach, the non breaching party shall be entitled to seek
an injunction to prevent the breach or threatened breach, and the breaching
party hereby waives any defense that an adequate remedy in law exists and
acknowledges that such a breach or threatened breach would result in irreparable
injury to the non-beaching party.
XIII. INDEMNIFICATION: Customer will indemnify "MEGW" and its affiliates and
their respective directory, officers, employees, agents and representatives
("Indemnified Parties"), and save them harmless from and against any and all
claims, actions, damages, liabilities, and expenses (whether from an action
brought by the Indemnified Party of a third party) (collectively, "Losses")
occasioned by any act or omission of Customer or any of its customers or end
users or any of their respective directors, officers employees or agents
relating to the use of the Service provided hereunder. If any Indemnified Party
shall, without fault on its part be made a party to any litigation commenced by
or against such Indemnified party or respective party, then the other party
shall protect and hold such Indemnified Party harmless, and shall pay all costs,
expenses, losses, damages, settlement payments (including reasonable attorney's
fees, costs and expenses incurred or paid by such Indemnified Party in
connection with said litigation.
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XIV. ARBITRATION: Any controversy, claim or dispute arising out of or relating
to the Agreement, or any breach termination or invalidity thereof, shall be
settled by binding arbitration before a single arbitration in accordance with
the Rules of The American Arbitration Association under its Commercial
Arbitration Rules and the Supplementary Procedures for Large, Complex Disputes
("Rules"), and judgment upon any award rendered may be entered into any court
having proper jurisdiction in the County City and State of New York.
XV. MISCELLANEOUS:
A. APPLICABLE LAWS: This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
B. WAIVER: A waiver by either party of a breach of any provision of the
Agreement and these General Terms shall not operate as, nor be construed as,
a waiver of any subsequent breach.
C. ENTIRE AGREEMENT: This Agreement (including the Agreement, General Terms
and conditions, and all Exhibits, Schedules and Order Information)
represents the entire agreement between the parties with respect to the
subject hereof and may be modified only by a subsequent written document
signed by the parties. This Agreement may be executed in one or more
duplicate originals, all of which shall constitute but one agreement between
the parties hereto.
D. PARTIAL INVALIDITY: The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
E. HEADINGS: All headings contained herein are inserted for convenience only
and do not constitute a part of the Agreement and these General Terms.
F. ASSIGNMENT: This Agreement and any rights or obligations arising under it
may not be assigned by Customer without :"MEGW's" prior written approval
which shall not be unreasonably withheld.
G. BENEFIT: This Agreement shall be binding upon and inure to the benefit of
"MEGW", Customer, and their respective successors and assigns to the extent
permitted herein.
H. NOTICE: Any notice to be given under the Agreement of these General
Terms, shall be in writing, shall be deemed given when mailed by registered
or certified mail, return receipt requested, postage prepaid to the party to
be notified at the address set forth above in this Agreement, or at such
other address as such party may designate in writing to the other party.
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I. ADDITIONAL TERMS: This is a Customer-to Customer Agreement subject to
Section 211 of the Communications Act of 1934, as amended. The Customer is
responsible for and shall comply with any and all legal and regulatory
requirements with respect to the Customer's use and resale of the Services,
including those of the Federal Communications Commission and state public
utility commissions. The Services are governed by this Agreement and all
Customer obligations and "MEGW" rights set forth in the "General Rules and
Regulations" section of "MEGW's" interstate tariff, if any, as may be
amended by "MEGW" in accordance with applicable laws and regulations.
WECU, INC.
Signature: /s/ Xxxxx Xxxx
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Printed Name: Xxxxx Xxxx Title: President
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Date: 24 October 1999
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MEGAWORLD, INC.
COMMUNICATIONS DIVISION
Signature: /s/ Xxxxxx X. Xxxxxxxx
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Printed Name/Title: Xxxxxx X. Xxxxxxxx - President
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Date: 11/16/99
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SCHEDULE A
APPLICATION SERVICE DESCRIPTION:
Calls are originated in the USA and terminated in a call center located in Costa
Rica. The transmission of the long distance portion is to be supported by
Satellite. (Satellite services provided by T-Ray). The application will also
include a limited number channels for calls to be originated in Costa Rica and
terminated in the USA.
SERVICE EQUIPMENT AND TECHNOLOGY DESCRIPTION:
The voice and VoIP compression equipment are Sun Microsystems servers with
Lucent DSP based communication peripherals and network interface cards. Each
system is a full computer telephony platform capable of supporting a full range
of audio text information services and auto attendant features. Utilizing Sun
equipment also enables us to remotely manage the systems and integrate real-time
network monitoring. In Costa Rica the systems will also include analog telephone
interfaces supporting up to 24 telephones.
SERVICE EQUIPMENT TITLE AND OWNERSHIP:
The service equipment installed and operated to deliver the service will remain
the property of MegaWorld, Inc. The services and associated equipment are to be
considered a rental or provided as part of the service and at no time is to be
considered to being purchased by the customer.
SERVICE INSTALLATION:
The equipment and associated systems will be fully tested and configured before
they are shipped to Costa Rica. This includes pre programming of all routing
information insuring a smooth installation and immediate service availability.
SERVICE CAPACITY UPGRADE:
The equipment and associated systems can be upgraded to support an additional 24
telephone channels with the addition of voice/VoIP peripherals, increased
Satellite communications and telephones.
SERVICE PRICES:
Total service capacity is 24 simultaneous telephone calls - Total Monthly Fixed
Cost $2,900
Communication Equipment - Sun Microsystems & Lucent DSP Communication $2,000 per
month
Communication Port Charges @ $300 per 24 channels $ 600 per month
In Bound 800 charges per minute $ 0.06 per minute
In Bound Toll Direct Inward Dialing charges per minute $0.045 per minute
In Bound 800 Line charge per T-1 $ 300 per month
Out Bound Terminating Traffic USA $ 0.07 per minute
Out Bound Line charge per T-1 $ 300 per month
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Installation Charges systems and lines $1,500
Monthly Billing Reports included
Network Management included
USA 24 hour, 7 day a week on-site support included
Costa Rica 24 hour x 7-day week telephone and remote maintenance
included
Note: Not included in installation - Travel and Hotel billed at actual costs.
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SCHEDULE A
SERVICE CAPACITY UPGRADE PRICE TO 48 CHANNELS:
Total capacity 48 simultaneous telephone calls - Total Monthly Fixed Cost $4,800
Communication Equipment - Sun Microsystems & Lucent DSP Communication $1,000 per
month
Communication Port Charges @ $300 per 24 channels $600 per month
In Bound 800 Line charge per T-1 $300 per month
Installation Charges systems and lines $1,500
Note: Not included in installation - Travel and Hotel billed at actual costs.
PAYMENT TERMS:
Deposit Required 2 months $ 5,800
Co-Location Charges 1 month $ 2,900
800 Number deposit 2 month estimate @ 100,000 minutes per month $12,000
Total due at contract acceptance $20,700
All invoices due upon receipt and will be issued on the first of every month
CONTRACT TERM:
One-year contract with a one-year renewal options with 30 day written notice.
BANKING & WIRE TRANSFER INFORMATION:
Bank of Tanglewood
000 Xxxxxxx Xxxx
Xxxxxxx, XX
ABA# 000000000
FAO Megaworld, Inc. #009209
Tel: # 000-000-0000 and fax 000-000-0000.
MEGAWORLD CONTACT INFORMATION:
Corporate: Xxxxxx X. Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx Xxxx, XX 00000
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Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxx@xxx.xxx
Technical: Xxx Xxxxxxx
000 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
000-000-0000
email xxxx@xxxxxx.xxx
XII. WECU, INC CONTACT INFORMATION
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