CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR
WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [*] [**] [***]
[****] OR [*****]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.30
CARRIER AGREEMENT
(800 ORIGINATION)
THIS CARRIER AGREEMENT, (the "Agreement"), is made this October 23, 1997 between
Operadora Protel, S.A. de C.V., its affiliates and/or representatives, a Mexican
corporation with a business address of Xxxxx Xxxxxx 000, 0xx Xxxxx, Xxxxx xx
Xxxxxxxxxx, Xxxxxx, X.X 00000 (herein named "Carrier") and WorldPort
Communications Inc. its affiliates and/or representatives, a United States
corporation, with a business address of 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 (herein named "Purchaser"). WITNESSETH
WHEREAS, Carrier provides the sale of certain telecommunications services,
including international long distance, switched and dedicated El termination
services, 800 number origination including prepaid and debit cards (hereinafter
referred to as the "Service") and
WHEREAS, Purchaser desires to use the Service supplied and furnished by Carrier
upon the terms, provisions and conditions of this Agreement and the Agreement's
Service Schedule(s) for termination of Mexico 800 number originated call traffic
into the United States of America and/or all other international destinations
defined in the Service Schedule.
NOW, THEREFORE, for and in consideration of the recitals, promises and covenants
contained herein and for other good and valuable consideration, the parties
hereto mutually agree as follows:
Effective Date - Minimum Service Terms
A. Effective Date - This Agreement shall be effective between the parties
as of the date first written above.
B. Start of Service - Carrier's obligation to provide and Purchaser's
obligation to accept and pay for Service pursuant to this Agreement
shall commence upon the execution of a Service Schedule by both
parties ("Start of Service"). Start of Service for a particular
Service may be further described in the relevant Service Schedule(s)
which constitutes an integral part of this agreement.
C. Minimum Service Term - Except as otherwise provided herein, the
Parties' obligations hereunder with respect to Service shall continue
from the Start of Service Date and continue over the Minimum Service
Term set forth in the relevant Service Schedule (the "Minimum Service
Term"). Upon the expiration of the Minimum Service Term, Service
shall automatically be extended for terms of [***], unless notice is
provided to Carrier by Purchaser ninety (90) days prior to the
expiration of the said Minimum Service Term.
D. Minimum Commitment - During each month during the Minimum Service
Term, Purchaser shall obtain and pay for monthly usage of at least the
amount set forth in the relevant Service Schedule (the "Minimum
Commitment") after the Ramp-up Period as defined in the attached
Service Schedule.
2. Service Schedules - Service requested by Purchaser hereunder shall be
requested on Carrier Service Schedule forms and signed by authorized
representatives of Purchaser and Carrier. Any Service Schedule executed by
the parties hereto shall reference this Agreement and shall become a part
of this Agreement to the extent that it describes the Service, Requested
Service Date, Service Connection, Charges, Specific Service Terms and other
information necessary for Carrier to provide Service to Purchaser.
3. Service Connections; Taxes; Service Xxxxxxxx
A. Technical Requirements - In order to utilize certain Services, a
designated connection between Purchaser's Location ("Purchaser's
Location") and the Carrier's Network at the Carrier Point-of-Presence
facilities (POP) must be established (herein "Service Connection").
Unless otherwise indicated in the Service Schedule, Purchaser shall be
responsible for establishing each Service Connection from its
facilities subject to Carrier approval. Service Connection shall only
be comprised of DS-l or DS-3 facilities unless otherwise agreed to by
the Parties hereto.
B. Connection - Commencing with the ramp-up schedule defined in Service
Schedule A of the Agreement, Purchaser must provide an average loading
on each E-1 comprising the Service Connection of not less than the
number of minutes of usage per E-1 per calendar month of the Minimum
Service Term (or any pro-rata portion thereof) set forth in the
relevant Service Schedule ("Minimum Monthly Usage"). The loading
shall average [**] minutes per El span, but may be loaded as
technically possible for the type Service provided. The Parties
hereto agree and accept not to exceed standard 4-1 compression
technology, however, any other compression technology must be accepted
by all parties hereto prior to implementation.
C. Expedite Charges - Should Purchaser request expeditious Service and/or
changes to orders and Carrier agrees to such request, Carrier may
charge Purchaser the actual cost plus [*] for supplying the requested
Service to Purchaser payable, with the request for expeditious
Service.
D. Fraudulent Calls - Purchaser shall indemnify and hold Carrier harmless
from all costs, expense, claims, or actions arising from fraudulent
calls of any nature which may comprise a portion of the Service to the
extent that the party claiming the call(s) in question to be
fraudulent is or had been at the time of the call, Purchaser or an
end-user of the Service through Purchaser.
E. Licenses - The Parties hereto are responsible for obtaining all
licenses, approvals from any regulatory authorities for its operation.
Each Party shall indemnify and hold harmless the other Party hereto
from all costs and damages, including without limitation, reasonable
attorney's fees, arising from the other Parties failure to comply with
any regulatory or governmental approvals required.
F. Billing - Per paragraph 5 of the Agreement, Purchaser will cooperate
with all Carrier billing practices such that Purchaser shall not act
in any manner to circumvent Carrier ability to charge for Carrier
Services. Except as otherwise agreed in writing between the Parties,
Purchaser is solely responsible for billing and collection of all
accounts, customer or end users to whom Purchaser provides services.
4. Other Obligations
A. Carrier Obligations
1). Carrier shall make its best efforts to ensure service
availability. Carrier may amend the rates specified in Exhibit A
at any time upon THIRTY (30) DAYS written notice to Purchaser.
2). Carrier shall make its best efforts to process all requests for
Service in a timely and accurate manner.
3). Carrier shall keep the quality of service within ITU standards
and keep the services within standards acceptable to both parties
hereto after initial testing and acceptance of Services by
Purchaser. Carrier shall assure that a minimum of Ninety Five
Percent (95%) of calls placed pursuant to the terms of this
Agreement are successfully completed.
4). Client list to be provided.
B. Other Purchaser Obligations
1). Purchaser shall not be relieved of any obligation hereunder by
virtue of the fact that Service is ultimately not used by
Purchaser's End Users (as hereinafter defined).
2). Purchaser shall be solely responsible for End User solicitation,
service, requests, creditworthiness, customer service, billing
and collection, and shall indemnify and hold Carrier harmless
from all costs (including attorney's fees) arising from its
responsibilities hereunder.
3). Purchaser shall be solely liable for amounts it cannot collect
from End Users, and billing adjustments it grants End Users,
including adjustments for fraudulent charges, directory
assistance or any other form of credit.
4). Client list to be provided.
5. Charges and Payments Terms
A. Taxes - Purchaser acknowledges and understands that all charges stated
in Service Schedules are computed by Carrier exclusive of any
applicable use, excise, gross receipt, sales and privileges taxes,
duties, fees with the exception of the Value added Tax normally
charged for these types of services in Mexico or other taxes or
similar governmental changes, customary for this type of service,
excluding rate and pricing changes imposed by the regulator which
affects the base rates and pricing established by the Service Schedule
as controlled and defined in section 5 hereunder.
B. Billing Disputes - Any billing discrepancies shall be presented to
Carrier in reasonable detail, in writing, within ninety (90) days of
the date of invoice in question. Purchaser acknowledges that it has
the right of set-off or deduction of any Billing discrepancies only
with proper documentation and set off will have to be agreed upon the
parties hereto.
C. Charges and Payment Terms - Carrier billing for Service shall be made
every month basis following the Start of Service. Service shall be
billed at the rates set forth on the Service Schedule(s) attached.
Purchaser will pay each Carrier faxed invoice for Service in full by
bank wire transfer or to the address set forth on a relevant Service
Schedule with no offset or deductions of any kind unless agreed to by
both parties, within seven (7) days of the invoice date set forth on
each faxed Carrier invoice to Purchaser ("Due Date"). All payments
due hereunder shall be made in U.S. dollars and sent to the Carrier
designated bank in same day funds. If payment is not received by
Carrier on the Due Date, Purchaser shall also pay a late fee in the
amount of one and one-half percent (1 1/2%) of the unpaid balance of
the Service charges per month or the maximum lawful rate under
applicable law. The Purchaser agrees that as the monthly usage
increases Purchaser will furnish Carrier with additional Security
Deposits if requested and required as set forth in the Service
Schedule, an integral part of this contract.
D. Suspension of Services - In the event payment is not received from
Purchaser by the Due Date, Carrier shall provide Purchaser with a 5
day written termination notice, said notice commencing one day after
the Due Date. If payment is not received in full within the 5 days of
such notice, Carrier has the right to suspend the effective portion of
the Service, and exercise all its rights over any and all Security
Deposits or other financial instruments established for its protection
against failure of Purchaser to pay an invoice. Following such
payment, Carrier shall reinstate Service to Purchaser, provided
Purchaser provides to Carrier satisfactory assurance of Purchaser
ability to pay for Service and reestablishes any Security Deposit
deficiency and/or additional Security Deposit required by Carrier.
6. Warranty - CARRIER MAKES NO OTHER WARRANTIES ABOUT THE SERVICE PROVIDED
HEREUNDER, EXPRESS OR IMPLIED, INCLUDED BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OTHER THAN THOSE
WARRANTIES HEREIN.
7. Default; Continued Relationship; Termination
A. In the event of Default, as defined below, this Agreement and
relationship of the parties may be terminated by the non-defaulting
Party in accordance with applicable provisions hereof and/or the
occurrence of any of the following events (collectively, a "Default").
B. Carrier may terminate this Agreement upon Purchaser's failure to cure
any of the following within 30 days following written notice thereof:
(a) the (i) insolvency, corporate reorganization, arrangement with
creditors, receivership or dissolution; or (ii) institution of
bankruptcy proceedings; (b) assignment or attempted assignment of the
Agreement or any interest therein, except as permitted by Section 16
hereof; (c) change in control of Purchaser without Carrier's prior
written consent, which consent shall not be unreasonably withheld; (d)
a final order by a government entity with appropriate jurisdiction
that a Service or the relationship hereunder is contrary to law or
regulation; or (e) breach of any provision herein not otherwise
referred to in this Section 7.
C. Carrier may terminate this agreement in the event Purchaser fails to
make any payment when due or fails to furnish security as may be
required pursuant to Section 5(E) hereof, and fails to cure default
within five (5) days after receipt of notice of such default.
D. Purchaser may terminate this Agreement on thirty (30) days prior
notice to Carrier for any breach of this Agreement. Additionally,
Purchaser may terminate this Agreement on THIRTY (30) DAYS prior
notice if (1) Carrier fails to meet its obligations regarding quality
of the network as such quality may be defined by the International
Standards (ITU) and fails to cure such failure within the said notice
period, (2) Carrier fails to meet its obligations to terminate traffic
or (3) any branch, office or decree of the Mexican Government and/or
its administration and/or regulatory bodies, and/or extensions thereof
(including state and local governments), attempts, or succeeds, or has
succeeded in, levying or imposing any order, surcharge, tax or fee
which serve to increase, either directly or indirectly, the cost of
the service to Purchaser beyond those rates set forth in Exhibit A of
this Agreement., or (4) any branch, office or decree of the United
States Government and/or its administration and/or regulatory bodies,
and/or extensions thereof (including state and local governments),
attempts, or succeeds, or has succeeded in, levying or imposing any
order, surcharge, tax or fee which serves to increase, either directly
or indirectly, the cost of the service to increase,
8. Liability: General Indemnity
A. Limited Liability - In no event shall either party hereto be liable to
the other party for any indirect, special, incidental or consequential
losses or damages, including without limitation, loss of revenue, loss
of customers or clients, loss of goodwill or loss of profits arising
in any manner from this Agreement and the performance or non-
performance of obligations hereunder. Unless Purchaser agrees
otherwise, if Carrier delays for more than thirty (30) days the
provisioning of any order for circuit(s), then Purchaser shall be
relieved of any commitment herein for the purchase of any additional
minutes from Carrier as to that order and Purchaser may withdraw the
order(s) so delayed and the Securities provided by Purchaser related
to those order(s) so delayed.
B. General Indemnity - In the event parties other than Purchaser shall
have use of the Service through Purchaser, Purchaser agrees to forever
indemnify and hold Carrier, its affiliated companies and any third
party provider or operator of facilities employed in provision of the
Service harmless from and against any and all claims, demands, suits,
actions, losses, damages, assessments (including without limitation,
attorney's fees) or payments which may be asserted by said parties
arising out of or relating to any defect in the Service, unless such
defect is caused by Carrier, its affiliated companies and any third
party provider or operator of facilities employed in provision of the
Service.
C. In the event that Carrier is required by any Mexican regulatory
agency, including but not limited to the Secretaria de Comunicaciones
y Transportes and the Comision Federal de Telecomunicaciones, to alter
the "transport and termination" of services provided by this contract,
require the revocation, cancellation or termination of Carrier's
concession, Purchaser, agrees to hold Carrier harmless in any and all
jurisdictions, and not liable for any loss, monetary or otherwise, as
a result of any of the above circumstances.
9. Force Majeure - If either Parties performance of this Agreement or any of
its obligations hereunder are prevented, restricted or interfered with by
cause beyond its control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any
law, order, regulation, direction, action or request of the United States
or Mexico government or state or local governments or of any department,
agency, commission, court, bureau, corporation or other instrumentality of
any one or more said governments, or of any civil or military authority, or
by national emergency, insurrection, riot, war, strike, lockout or work
stoppage or other labor difficulties, supplier failure, shortage, breach or
delay, then the party affected herein shall be excused from such
performance on a day-to-day basis to the extent of such restriction, change
or interference.
10. Notices - Any notices to be given hereunder by either party to the other
may be effected by either personal delivery in writing or by mail,
registered or certified, postage prepaid, with returned receipt requested
or overnight delivery. Mailed notices shall be addressed to the respective
addresses shown below. Either party may change its address for notice by
giving written notice in accordance with terms of this Agreement.
If to Carrier: If to Purchaser:
Operadora Protel S.A. de C.V. WorldPort Communications Inc.
Xxxxx Xxxxxx 132 0000 Xxxx Xxxxxxx, Xxxxx 000
0xx Xxxxx Xxxxxxx Xxxxx, 00000
Xxxxx xx Xxxxxxxxxxx
Xxxxxx X.X. 00000
Att: Xxx Ma Xxxxxxxxx Att: Xxxx Xxxxxx
11. No Waiver - No term or provision of this agreement shall be deemed waived
and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived
or consented. No Consent by any party to, or waiver of, a breach or
default by the other, whether express or implied, shall constitute a
consent to, waiver of, or excuse for any different or subsequent breach or
default.
12. Headings -The headings of the Sections of this Agreement are inserted
solely for convenience and do not form a part of or affect the meaning
hereof.
13. Confidentiality
A. Confidential Information - A party ("the disclosing party") may,
either orally, in written form, or otherwise, disclose to the other
party ("the receiving party"), or the receiving party may otherwise
obtain either party's confidential information ("Either Party's
Confidential Information") in connection with this Agreement. The
terms and conditions of this Agreement are Either Party's Confidential
Information". Any information that either party may disclose to the
other party or may otherwise obtain in connection with this Agreement
regarding any of (I) either party's existing or potential customers;
(II) either party's rates and changes; or (III) either party's
network, platform, software shall be either party's Confidential
Information, regardless of whether it is indicated as such at the time
of disclosure. If any of the following apply to any information, such
information shall not be considered as either part's Confidential
Information.(I) it is or becomes available to the public through no
wrongful act of either party; (ii) it is already in the possession of
either party and not subject to any agreement of confidence between
the parties; (iii) it is received from a third party without
restriction for the benefit of either party and without breach of this
Agreement; or (iv) it is independently developed by either party.
Either party may disclose either party's Confidential Information
pursuant to a requirement of a duly empowered government agency or a
court of a competent jurisdiction after due notice and an adequate
opportunity to intervene is given to the other party, unless such
notice is prohibited. Except as provided herein, either party shall
not use or disclose either party's Confidential Information. Upon
termination or expiration of this Agreement, each shall, at the other
party's direction, either return to the other party or destroy all
Either Party's Confidential Information and so certify it in writing.
The obligations of this provision will survive for two (2) years after
any termination or expiration of this Agreement.
B. Limited Disclosure - A party shall not disclose Confidential
Information unless subject to discovery or disclose pursuant to legal
process as provided below, or to any other party other than the
directors officers and employees of a party or a party's agents
including their respective brokers, lenders, insurance carriers or
bona fide prospective purchasers who have specifically agreed in
writing to nondisclosure of the terms, and conditions hereof. Any
disclosure hereof required by legal process shall only be made after
providing the non-disclosing party with notice thereof in order to
permit the non-disclosing party to seek an appropriate protective
order or exemption. It is acknowledged by the parties hereto that
violation by a party or its agents of the foregoing provisions shall
entitle the non-disclosing party at its option to obtain injunctive
relief without a showing of irreparable harm or injury and without
bond. Carrier agrees not to circumvent Purchaser sources or
Purchaser's existing customers and potential customers to offer
services for termination into Mexico during the period of this
agreement. Purchaser will not circumvent Carrier Sources to obtain
termination services.
14. Regulations - This Agreement is made expressly subject to all present and
future valid orders and regulations of any regulatory body having
jurisdiction of the subject matter hereof and to the laws of the United
States of America, any of its states, or any Mexican governmental agency
including but not limited to the Secretaria de Comunicaciones y
Transportes, Comision Federal de Telecomunicaciones having jurisdiction.
In the event this Agreement, or any of its provisions, shall be found
contrary to or in conflict with any such order, rule, regulations or laws,
this Agreement shall be deemed modified to the extent necessary to comply
with any such order, rule, regulation or law and shall be modified in such
a way as is consistent with the form, intent and purpose of this Agreement.
In the event this Agreement, or any of its provisions, shall be found
contrary to or in conflict with any tariff of any government, the party
affected shall have the opportunity to amend tariff to conform under the
services of this Agreement contemplated for the services herein.
15. Service Start Condition - In order for this agreement to take effect,
Purchaser acknowledges that Carrier must have their own international
gateway, as well as an interconnect agreement with an international carrier
and/or lease capacity from another authorized international gateway.
16. Governing Law
A. Law - This Agreement shall be construed under the laws of the State of
New York.
17. Binding Effect - All terms and conditions hereof shall be binding upon and
inure to the benefit of and be enforceable by the heirs, administrators,
executors, successors and assigns of the respective parties hereto. This
Agreement cannot be assigned by either Party hereto without the written
consent of the other Party.
18. Counterparts - This Agreement may be executed in more than one counterpart,
each of which shall be deemed to be an original, but all of which together
shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of date
first written above.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
SERVICE SCHEDULE
800 ORIGINATION
IN COUNTRY
Operadora Protel S.A. de C.V (Carrier) agrees to provide and Global (Purchaser)
agrees to accept the Services described below subject to the terms and
conditions set forth herein and contained in the Agreement among Purchaser and
Carrier, dated October 23, 1997. Capitalized terms herein shall have the
definitions ascribed to them herein, or if not defined, the definition provided
in the Agreement shall apply.
1. Carrier agrees to provide the Service described in Exhibit A and all other
Exhibits defined hereto to the Specified Termination locations if any,
described in Exhibit A for the charges set forth in Exhibit A for a Minimum
Service Term of [***] beginning after the Ramp-Up Period agreed to in
Exhibit A, and shall continue automatically for [***] periods thereafter,
unless one of the parties provides written notice to the other party ninety
(90) days prior to the expiration of the Service Term, that the Service
Term will not be continued.
2. Start of Service will occur concurrently, regardless of Start Date, with
the activation of each Service Connection relevant to the Service in
question. The Minimum Commitment calculation for Service will commence and
apply as defined by the Ramp-up Period in Exhibit A herein a part of this
Agreement and the minimum monthly usage calculation for Service will
commence as of thirty (30) calendar days following Start of service.
3. As of the Requested Service Date, Circuits comprising Service Connections
will be provided between the Carrier POP's and Purchaser Originating
Locations (international 800 number originated calls using in-country 800
numbers with delivery to Carrier's USA defined POP), or as otherwise
defined for the Service in Exhibit A herein.
Requested Service Date:
4. Purchaser shall provide Carrier with the regular quarterly forecasts
regarding the number of minutes expected to be originated, so as to enable
Carrier to configure optimum network arrangements.
5. Carrier reserves the right to modify charges for and/or terminate the
Service offerings to specific locations and modify Service Connection
charges (not to exceed the then-current generally available Carrier
charges, if Carrier receives price changes from their underlying sources,
if any, upon not less than FORTY-FIVE (45) DAYS prior written notice to
Purchaser. If Charges are unacceptable, Purchaser may cancel that portion
of the Service and related Minimum Commitment affected by the modified
charges upon thirty (30) days written notice to Carrier. The Parties
hereto will mutually determine to best way to go forward based on the
changes proposed.
6. Banking Relationship of the Parties - All payments to Carrier for Services
shall be made to the bank wire transfer Account as defined by Carrier and
can be changed by Carrier from time to time with thirty (30) days written
noticed.
7. Purchaser will make applicable payments for the defined Service into an
"Carrier Payment Account", the amount of which will be determined by the
bi-weekly invoices to Purchaser. Every month Purchaser will receive an
invoice from Carrier and for which payment is due from Purchaser seven (7)
days from the time the invoice is received by Purchaser as defined in the
Agreement.
8. This Schedule may be executed in more than one counterpart, each of which
shall be deemed to be an original, but all of which together shall
constitute a single Agreement.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on November
11, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
SERVICE SCHEDULE
800 ORIGINATION
(VOLUME COMMITMENT)
Carrier agrees to provide and Purchaser agrees to accept the Service described
below subject to the terms and conditions set forth herein and contained in that
certain Agreement between Purchaser and Carrier, dated October 23, 1997. In
addition to all other obligations pursuant to the Agreement, it is farther
agreed that the following conditions shall apply:
1. Purchaser's Minimum Commitment - Commencing with the Start Date set forth
in Exhibit A hereto, and after the ramp-up period defined in Exhibit A and
continuing through the End Date set forth on Exhibit A attached hereto
("Commitment Period"), Purchaser shall obtain and pay for Monthly Usage, as
defined below, of at least the amount set forth in Exhibit A hereto
("Minimum Commitment"). For purposes of this Schedule, "Monthly Usage"
shall be defined solely as the minute usage for Mexico 800 number
originated international call minutes.
2. Deficiency Charge - In the event Purchaser does not maintain the designated
Minimum Commitment for the months indicated and after the ramp-up period
for those month(s) only, Purchaser will pay Carrier [***] percent of the
difference between the Minimum Commitment and the actual Monthly Usage (as
defined above) generated (the "Deficiency Charge") by Purchaser. The
Deficiency Charge will be due at the same time payment is due for Service
provided to Purchaser.
3. Cancellation Charge - At any time during the Commitment Period, Purchaser
may cancel this Service Schedule if Purchaser provides written notification
thereof to Carrier, not less than ninety (90) days prior to the effective
date of such intent of cancellation. In such case or in the event
Purchaser terminates this portion of the Agreement, Purchaser shall
immediately pay to Carrier all charges for Service provided through the
effective date of such cancellation plus an Cancellation Charge (the
"Cancellation Charge") equal to [***] of the Minimum Commitment that should
have become due for the non-expired portion of the Commitment Period.
4. Liquidated Damages - It is agreed that Carrier damages in the event
Purchaser cancels Service or fails to meet the Minimum Commitment shall be
difficult or impossible to ascertain. The provision for a Deficiency
Charge is intended, therefore, to establish liquidated damages in the event
of a cancellation or failure by Purchaser to meet the Minimum Commitment.
5. Breach and Commitment Waiver - Notwithstanding anything to the contrary
contained in Section 2 above, Purchaser's Minimum Commitment on Exhibit A
will be waived if Carrier materially breaches this Agreement; provided
however, Purchaser must give Carrier written notice of any such default and
an opportunity to cure such default within FORTY-FIVE (45) DAYS of the
notice before the Commitment is waived. The parties will then mutually
agree on how best to move forward. Additionally, if Carrier is not able to
provide necessary capacity for Purchaser to meet it's commitment, the
Minimum Commitment will be waived by Carrier.
6. Other Charges - Any Deficiency Charge or Cancellation Charge payable
pursuant to this Service Schedule shall be in addition to all other charges
payable by Purchaser pursuant to the Agreement.
7. Counterparts - This Schedule may be executed in more than one counterpart,
each of which shall be deemed to be an original, but all of which together
shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on October
23, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT A
800 ORIGINATION
SELECTED SERVICES
INTERNATIONAL 800/PREPAID/DEBIT CALL ORIGINATION
The below defined Exhibit of Selected Services defines the Minimum Commitment
made by Purchaser for the use of Service from Carrier. This Exhibit may be
executed in more than one counterpart, each of which shall be deemed to be an
original, but all of which together shall constitute a single Agreement.
1. Start and Termination of Initial Period
A. Start Date of Commitment Period October 23, 1997 (the Start Date)
B. End Date of Commitment Period [***] (the End Date)
2. Service Definition - The Service to be provided by Carrier and to be
purchased by Purchaser related to these Selected Services Exhibit are 800
number origination for use as Prepaid or Debit Card minutes in the country
of Mexico to be delivered by Carrier to an agreed to Point on Presence
(POP) selected by Carrier in the United States of America at which POP
Purchaser will bring its connecting facilities. From this POP defined by
Carrier it will be Purchaser's obligation to complete the final delivery to
the terminating location as they deem necessary and at Purchaser's cost.
For the purpose of this Agreement the Carrier's POP is defined as the
TecNet POP in the city of Dallas, Texas, United States of America.
3. Minimum Commitment - Purchaser Minimum Commitment during the initial period
of service shall be defined as the Mexico 800 number originated call volume
in minutes from Purchaser defined properties to be terminated in the
country of United States of America by Purchaser's network, whether owned,
leased or otherwise acquired and operated for the purpose of call transport
and termination.
A. Minimum Commitment - Purchaser commits to originate in Mexico via 800
numbers belonging to Carrier and assigned for the purpose of call
origination, which Carrier will transport to an agreed to POP in the
United States, and which Purchaser will accept at the defined POP and
terminate in said country at least [**] minutes per month according to
an agreed to rampup schedule which allow both Carrier and Purchaser to
develop their respective markets and infrastructure. The Start Date
will be the date Carrier turns up the 800 numbers for Service.
B. Ramp-Up Period - The Ramp-Up Period is defined as the mutually agreed
period in months for Purchaser to meet its Minimum Commitment and said
Minimum Commitment will commence as defined in this Exhibit as 3.A.
The target dates for ram-up are:
Estimated Ramp-up Schedule
In of Minutes/Month
Month Terminating Call Minutes
First [**]
Second [**]
Third [**]
Four [**]
Five [**]
Six [**]
C. Country of Origination - MEXICO
D. Point of Presence - [****] (CFA to be provided).
E. Purchaser understands and accepts the circumstances that Carrier is
developing its infrastructure and may be limited in providing
necessary capacity in order for Purchaser to ramp up to commitment
levels and beyond. Purchaser agrees and will not oversell traffic to
its customers resulting in not been able to provide capacity to it's
customers via Carrier's network in order not to tarnish the goodwill
of both parties.
4. Transport Charges - Price per minute of for 800 number call origination is
set by Carrier for the Initial Period and can be changed by Carrier from
time to time until the termination of the agreement, with thirty (30) day
written notice to Purchaser of said change. The following schedule sets
forth the Initial Agreement Period pricing for the Selected Services
A. The charges defined below for 800 number origination include the cost
of the 800 number, the in-country transport of the 800 number call and
the delivery to the Carrier's USA POP. All other cost related to
Purchaser ability to accept, transport and deliver the call to the
end-user are obligation of Purchaser.
TRANSPORT AND TERMINATION PRICING SCHEDULE
800 number origination minutes per month:
[**] [*]
[**] [*]
[**] [*]
[**] [*]
The maximum price to end-user is [*] USD.
5. Additional Terms and Conditions
A. The parties will establish the banking and deposits accounts within
ten (10) working days after execution of this Agreement or as mutually
agreed to by the parties hereto.
B. Purchaser will have a ramp-up period as defined by section 3(B) above
to achieve the Minimum Commitment. Should Purchaser not meet the
Minimum Commitment within the above defined Ramp-Up Period, Purchaser
agrees that the terms and conditions defined in Service Schedule
section 5 (800 Number Origination-In Country), and Service Schedule
(Volume Commitment) Section 2 and 3 Deficiency Charges and
Cancellation Charges will be in force and apply as defined.
C. Purchaser will make a security deposit as defined by Carrier in the
form of a financial instrument defined by Carrier, unless mutually
agreed to in writing by the Parties (Security Deposit). The amount of
Security Deposit will be defined at time when this Agreement is
effective and will be included in this Document. The amount of
Security Deposit will be US$[*] which will be placed in the "Escrow
Deposit Account". The Security Deposit on hand in the Escrow Deposit
Account will be increased as the Service Monthly Usage increases
through the ramp-up period and thereafter, as required by Carrier.
D. Purchaser has the right to approve the quality, call connect timing,
db loss, post dial delay and the overall circuit quality before the
Start Service Date is effective and the services accepted per this
Agreement. However, unless the Purchaser does not approve, in
writing, the quality, call connect timing, db loss, post dial delay
and the overall quality; all terms and conditions are accepted and
applicable for said Services and the entire Agreement is in full
force.
E. The Mexico Billing increments are [**] MTR and [**] increments
thereafter.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on the 23rd
day of October, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT B
800 ORIGINATION
SELECTED SERVICES
NATIONAL 800/PREPAID/DEBIT CALL ORIGINATION
The below defined Exhibit of Selected Services defines the Minimum Commitment
made by Purchaser for the use of Service from Carrier. This Exhibit may be
executed in more than one counterpart, each of which shall be deemed to be an
original, but all of which together shall constitute a single Agreement.
1. Start and Termination of Initial Period
A. Start Date of Commitment Period October 23, 1997 (the Start Date)
B. End Date of Commitment Period [***] (the End Date)
2. Service Definition - The Service to be provided by Carrier and to be
purchased by Purchaser related to these Selected Services Exhibit are 800
number originated call minutes in the country of Mexico to be delivered by
Carrier to Purchaser's customers selected terminating points within Mexico.
Carrier will complete the final delivery to the terminating location as
they deem necessary and at agreed Purchaser's cost.
3. Minimum Commitment - Purchaser Minimum Commitment during the initial period
of service shall be defined as the Mexico 800 number originated call volume
in minutes from Purchaser defined properties to be terminated in the
country of Mexico by Purchaser's network, whether owned, leased or
otherwise acquired and operated for the purpose of call transport and
termination.
A. Minimum Commitment - Purchaser commits to originate in Mexico via 800
numbers belonging to Carrier and assigned for the purpose of call
origination, which Carrier will transport to an agreed terminating
location in the country of Mexico, at least [**] per month according
to an agreed to ramp-up schedule which allow both Carrier and
Purchaser to develop their respective markets and infrastructure. The
Start Date will be the date Carrier turns up the 800 numbers for
Service.
B. Ramp-Up Period - The Ramp-Up Period is defined as the mutually agreed
period in months for Purchaser to meet its Minimum Commitment and said
Minimum Commitment will commence as defined in this Exhibit as 2.A.
The target dates for ramp-up are
Estimated Ramp-up Schedule
In Minutes/Month
Month Terminating Call Minutes
First [**]
Second [**]
Third [**]
Four [**]
Five [**]
Six [**]
C. Country of Origination - MEXICO
D. Point of Presence - [****] (CFA to be provided)
E. Purchaser understands and accepts the circumstances that Carrier is
developing its infrastructure and may be limited in providing
necessary capacity in order for Purchaser to ramp up to commitment
levels and beyond. Purchaser agrees and will not oversell traffic to
its customers resulting in not been able to provide capacity to it's
customers via Carrier's network in order not to tarnish the goodwill
of both parties.
4. Transport Charges - Price per minute of for 800 number call origination is
set by Carrier for the Initial Period and can be changed by Carrier from
time to time until the termination of the agreement, with thirty (30) day
written notice to Purchaser of said change. Purchaser will act a an
authorize seller of services for Carrier, and as such agrees that Carrier
will set the per minute price to be used as the selling price per minute of
prepaid and debit service, and will receive a commission based on the terms
defined in the Agency Agreement as defined in this Exhibit B of Selected
Services paragraph 5.F. The following schedule sets forth the Initial
Agreement Period pricing for the Selected Services
Transport and Termination Pricing
800 number origination including $[*] USD/minute Minimum Price
call termination in the Country of
Mexico. Price to Purchaser.
800 number origination including $[*] USD/minute Maximum Price
call termination in the Country of
Mexico. Price to End User.
PRICES INCLUDE THE MEXICAN VALUE ADDED TAX OF 15%-XXX
X. The charges defined above for 800 number origination include the cost of
the 800 number, the in-country transport of the 800 number call and the
delivery of the call to the end-user customer. All other cost related to
Purchaser ability to accept, transport and deliver the call to the end-user
are obligation of Purchaser.
5. Additional Terms and Conditions
A. The parties will establish the banking and deposits accounts within
ten (10) working days after execution of this Agreement or as mutually
agreed to by the parties hereto.
B. Purchaser will have a ramp-up period as defined by section 3(B) above
to achieve the Minimum Commitment. Should Purchaser not meet the
Minimum Commitment within the above defined Ramp-Up Period, Purchaser
agrees that the terms and conditions defined in Service Schedule
section 5 (800 Origination-In Country), and Service Schedule (Volume
Commitment) Section 2 and 3 Deficiency Charges and Cancellation
Charges will be in force and apply as defined.
C. Purchaser will make a security deposit as defined by Carrier in the
form and financial instrument defined by Carrier, unless mutually
agreed to in writing by the Parties (Security Deposit). The amount of
Security Deposit will be defined at time when this Agreement is
effective and will be included in this Document. The amount of
Security Deposit will be $[*] which will be placed in the "Escrow
Deposit Account". The Security Deposit on hand in the Escrow Deposit
Account will be increased as the Service Monthly Usage increases
through the ramp-up period and thereafter, as required by Carrier.
D. Purchaser has the right to approve the quality, call connect timing,
db loss, post dial delay and the overall circuit quality before the
Start Service Date is effective and the services accepted per this
Agreement. However, unless the Purchaser does not approve, in
writing, the quality, call connect timing, db loss, post dial delay
and the overall quality; all terms and conditions are accepted and
applicable for said Services and the entire Agreement is in full
force.
E. The Mexico Billing increments are [**] MTR and [**] increments
thereafter.
F. For the purpose of this Service Exhibit B and its execution, Purchaser
agrees that it will enter into an Agent Agreement for the purpose of
marketing the services in the country of Mexico. This is a regulatory
requirement that must be met by Carrier. This above mentioned Agent
Agreement is considered a condition requirement for Carrier'
performance on the Services requested.
G. Carrier will provide to Purchaser 01-800 numbers (Mexico)
H. Carrier will provide the Service 24 hours a day, 7 days a week, 365
days a year.
I. Carrier will provide voice recognition in the debit card platform or
other services until the voice recognition is installed, in order to
reduce non-completes.
J. Purchaser shall pay the costs for non-completes exceeding [*] of such
calls
K. Carrier will provide Purchaser a list of all charges in connection
with the Service of prepaid debit cards.
L. Purchaser will provide customer service or Carrier will provide
customer service at an agreed price with Purchaser
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT C
800 0RIGINATION
SELECTED SERVICES
SERVICE CONNECTION DIAGRAMS
The below defined Exhibit of Selected Services defines and represents the
Service Connection to be used Purchaser for the use of Service from Carrier.
This Exhibit may be executed in more than one counterpart, each of which shall
be deemed to be an original, but all of which together shall constitute a single
Agreement.
1. Process and Service Connection Diagrams (to be defined).
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT D
800 ORIGINATION
SELECTED SERVICES
INTERNATIONAL 800/PREPAID/DEBIT CALL ORIGINATION
ANCILLARY CHARGES
The below defined Exhibit of Selected Services defines the Ancillary Charges for
the use related services made by Purchaser for the use of Service from Carrier.
This Exhibit may be executed in more than one counterpart, each of which shall
be deemed to be an original, but all of which together shall constitute a single
Agreement.
SCHEDULE OF ANCILLARY CHARGES
Service Description Price For Service
Voice Recognition $[*] per call
Operator Services $[*] per call
Excess Incomplete Call Attempts (over [*] $[*] per minute
of all attempts)
Customer Service
THIS EXHIBIT MAY BE MODIFIED BY PROTEL.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on the 23d
day of October, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx Ma Xxxxxxxxx
(Signature) (Signature)
Xxxx X. Xxxxxx Xxx Ma Xxxxxxxxx
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
