Exhibit 10.14
Access Agreement between PSINet Inc. and the Registrant
Pages where confidential treatment has been requested are stamped 'Confidential
Treatment Requested and the Redacted Material has been separately filed with the
Commission,' and the appropriate section has been marked in the margin with a
star(*).
ACCESS AGREEMENT
THIS AGREEMENT is made as of June 28, 1996, between PSINet Inc., a corporation
incorporated under the laws of the State of New York and having its principal
place of business at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("PSI"),
and IDT Corporation ("IDT"), a corporation incorporated under the laws of the
State of Delaware and having its principal place of business at 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, IDT desires to obtain from PSI network access for the benefit of IDT's
individual customers desiring access at speeds up to 28.8 Kbps (hereinafter,
"Customers"); and
WHEREAS, PSI is willing and able to provide such access;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree, intending to be legally bound, as follows:
1. Definitions. The following terms shall have the following meanings for
purposes of this Agreement and for purposes of the Exhibits hereto:
1.1 "Authorized User" shall mean any person authorized by an IDT Customer to
have an account on a Host.
1.2 "Backdoor Connection" shall mean a connection over the Network to any person
who is not an Authorized User.
1.3 "Host" shall mean a computer with a Network address.
1.4 "Network" shall mean the combination of computer hardware, computer software
programs and data transmission facilities operated by PSI which will permit
computers operated by IDT Customers to communicate with computers at remote
locations which are operated by others and to provide access to Internet.
2. Access.
2.1 Provision of Access. Throughout the term of this Agreement, PSI shall
provide IDT's Customers with the right to access at speeds up to 28.8 Kbps and
use its Network at the levels then provided and supported by PSI ("Access"), as
more specifically defined in paragraph 3.1 hereof. A list of points of presence
("POPs") currently maintained by PSI is annexed hereto as Exhibit A. PSI
reserves the right to install new POPs and/or to close existing POPs as it, in
its sole discretion, deems appropriate. In the event PSI deems it necessary to
close an existing POP, PSI shall provide IDT with sixty (60) days written notice
thereof. IDT may order such Access on behalf of its present or future Customers
and there shall be no limit on the number of Customers who may use the Network;
provided, however, that upon 30 days written notice to IDT PSI may refuse
service to a proposed
IDT Customer because there is insufficient capacity on the Network or in the POP
to provide the Services to such proposed Customer.
2.2 Termination of Access. PSI shall terminate the Access rights of any IDT
Customer as soon as is reasonably practical upon written notice from IDT to do
so or upon mutually agreed upon electronic process with receipt confirmed, but
shall have no liability in connection therewith.
2.3 Authorized Users. IDT may not permit any person or entity other than an
Authorized User to have access to the Network, except with the consent of PSI.
No person may be authorized to use the Network by means of a connection between
a Host owned or leased by a Customer and a Host owned or leased by a person
other than a Customer.
2.4 Local Loop Facilities. Local Loop to PSI's Network shall be the sole
responsibility of IDT and its Customers and PSI shall have no responsibility in
connection therewith.
2.5 Primary Access Provider. During the initial term of this Agreement and any
and all renewal terms, PSI shall be the primary alliance provider of Access for
IDT's Customers, excluding access provided by other providers pursuant to
alliance agreements to which IDT is a party and which are in force prior to the
date of this Agreement. Additionally, IDT may enter into similar alliance
agreements in areas which are not covered by PSI's Network or areas PSI chooses
not to service due to a lack of capacity in accordance with the provisions of
paragraph 2.1 hereof.
2.6 Additional Users. IDT will use its best efforts to increase the number of
users of PSI's Network. Additional Users obtained by IDT shall be entitled to
use the Network through IDT in the same manner and to the same extent as other
IDT Customers.
3. Term. The initial term of this Agreement shall be one (1) year from the date
hereof. This Agreement shall be automatically renewed for successive one-year
terms, unless terminated by either party upon at least ninety (90) days prior
written notice to the expiration of the initial or any renewal term. Either
party may terminate this Agreement at any time during the term of this Agreement
with at least one-hundred eighty (180) days written notice to the other;
provided, however, that neither party may terminate this Agreement during its
initial term except in the event of a material breach by the other party.
4. Charges.
4.1 Base Charge. On the execution of this Agreement, and on the first day of
each month thereafter throughout the term of this Agreement, IDT agrees to pay
PSI for each of IDT's Customers who is then or was at any time during the
immediately preceding month authorized to use PSI's Network a base charge
pursuant to the following schedule:
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[ ]*
The applicable base charges above are to be applied to all IDT Customers
irrespective of the rate that previously was applied to each group of
Customers. For example, if there are [ ]* IDT Customers on PSI's Network,
the applicable base charge of [ ]* shall apply to the entire Customer base.
Should the amount of Customers subsequently fall below the threshold, the
applicable base charge shall adjust to the base charge indicated in the above
schedule for such number of Customers. The payment to be made for the initial
month of Access for any IDT Customer shall include (i) an amount equal to the
applicable base charge for such initial month, prorated in the case of a partial
month, and
[Initialed KB]
4.2 Taxes. IDT shall be liable for and shall reimburse PSI for all taxes and
related charges however designated resulting from the transactions contemplated
hereby, including state or local sales or use taxes and excise taxes, imposed in
connection with or arising from the provision of Access. IDT will pay all
surcharges levied in connection with the local loops.
4.3 Invoices. PSI shall invoice IDT monthly in advance for all charges under
this Agreement. All invoices will be payable within seven (7) days of receipt of
invoice. Delinquent payments are subject to a late payment charge at the rate of
prime plus four percent (4%) per month, or portion thereof, of the amount due
(but not to exceed the maximum lawful rate). In the event IDT shall fail to pay
PSI any amount due under this Agreement for a period of 14 days, PSI, in
addition to charging applicable delinquency fees, may discontinue providing
Access to IDT and its Customers upon twenty-four (24) hours prior written notice
to IDT. PSI shall resume providing Access immediately upon receipt of such
payment, and in such event IDT shall pay PSI a reasonable reconnection fee.
4.4 Minimum Commitment. Commencing six (6) months from the date PSI begins to
service IDT Customers on PSI's Network, the minimum monthly revenue to PSI from
IDT for Access provided pursuant to the terms of this Agreement shall be
[ ]* In the event PSI's gross revenues from IDT in any month thereafter
shall be less than the required minimum, IDT, at its discretion, shall either:
(a) remit to PSI an amount equal to the difference between the aforesaid
minimum monthly revenue amount and such gross revenues; or
(b) give PSI the right of first refusal to purchase from IDT all IDT
Customers who receive Access to PSI's Network pursuant to the
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Confidential Treatment Requested and the Redacted Material
has been separately filed with the Commission
terms of this Agreement at the lower of [ ]*
and (ii) the rate of [ ]* per Customer.
In the event that PSI chooses not to purchase the IDT Customers and IDT chooses
not to remit to PSI the amount stated above in subparagraph (a), PSI shall
continue to service the Customers [ ]* specified in paragraph 4.1 hereof
for a period of sixty (60) days following such failure by IDT to provide the
minimum monthly revenue payment, in order to assure a smooth transition for said
customers.
5. Maintenance Services
5.1 Maintanence of Network. PSI shall keep and maintain its Network in good
condition and repair with a minimum uptime of [ ]*. In the event that PSI fails
to maintain said minimum uptime in any given month, the monthy base charges for
customers affected shall decrease by [ ]* for each full percentage point below
the [ ]* threshold. Additionally, any downtime of [ ]* hours or greater during
any given day, shall result in the same adjustment of the applicable monthly
base charge. The Network shall be properly maintained, serviced and upgraded by
PSI as it, in its sole discretion, shall determine is necessary in order to
ensure connectivity to IDT Customers. PSI shall maintain a user to modem ratio
of no greater that [ ]* for its Network.
5.2 Customer Equipment. PSI shall not be responsible for the installation,
operation or maintenance of any computer equipment or computer software programs
provided by an IDT Customer.
6. WARRANTIES EXCLUDED. PSI MAKES NO WARRANTIES IN CONNECTION WITH ITS NETWORK
OR THE PROVISION OF ACCESS AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF
MERCHANTIBILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE.
IDT'S SOLE AND EXCLUSIVE REMEDY SHALL BE PSI'S OBLIGATION TO GIVE A CREDIT OR
REFUND, AT PSI'S SOLE DISCRETION, BASED ON THE ORIGINAL CHARGE FOR THE SERVICES.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT
TO THE CONTRARY, THE PARTIES AGREE THAT PSI SHALL IN NO EVENT BE LIABLE TO IDT
OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
RELIANCE, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR
NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING OUT OF THE
PROVISION OF ACCESS OR IN ANY WAY ARISING OUT OF THIS AGREEMENT, WHETHER IN
ACTION ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE,
STRICT TORT LIABILITY FOR ANY CLAIM OR LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE
WHATSOEVER, EXCEPT FOR PSI'S GROSS NEGLIGENCE, SHALL IN NOT EVENT EXCEED THE
MONIES ACTUALLY PAID TO PSI
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Confidential Treatment Requested and the Redacted Material
has been separately filed with the Commission
UNDER THIS AGREEMENT BY IDT FOR THE SPECIFIC SERVICES THAT GIVE RISE TO THE
CLAIM. NO ACTION OR PROCEEDING AGAINST PSI MAY BE COMMENCED MORE THAN TWO YEARS
AFTER THE SERVICES ARE RENDERED. THIS CLAUSE SHALL SURVIVE FAILURE OF AN
EXCLUSIVE REMEDY. PSI'S TOTAL LAIBILITY FOR GROSS NEGLIGENCE DURING THE LIFETIME
OF THIS AGREEMENT SHALL IN NO EVENT EXCEED [ ]*
IN THE AGGREGATE.
8. Force Majeure. To the extent provided in this Section 8, PSI shall not be
liable for failure to fulfill its obligations hereunder if such failure is due
to causes beyond its reasonable control, including, without limitation, actions
or failures to act of IDT or any IDT Customer, acts of God, fire, catastrophe,
governmental prohibitions or regulations, viruses which did not result from the
acts or omissions of PSI, its employes or agents, national emergencies,
insurrections, riots or wars, 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 PSI
shall act with diligence to correct such force majeure.
9. Indemnification of PSI. IDT shall idemnify and hold harmless PSI and PSI's
directors, officers, employees, agents and advisors from and against any and all
claims of other persons or entities arising out of material, data, information
or other content transmitted by IDT Customers or other acts or omissions IDT
and/or its Customers.
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 the Agreement. Confidential
Information shall mean all information of the disclosing party which it treats
as confidential or proprietary. 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.
10.2 Duration. With respect to all Confidential Information, the parties' rights
and obligation under this Article shall remain in full force and effect
following the termination of this Agreement.
10.3 Ownership. All materials and records which consititute 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 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,
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Confidential Treatment Requested and the Redacted Material
has been separately filed with the Commission.
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 Article of this Agreement.
10.5 Legal Obligation to Disclose. Each party shall be released from its
obligations under this Article 10 with respect to information which such party
is required to disclose to others pursuant to obligations imposed by law, rule
or regulation; provided, however, that prior to any such required disclosure,
such party provide written notice and consult with the other party.
11. Miscellaneous.
11.1 No Agency. Except as otherwise expressly provided in this Agreement, this
Agreement does not constitute either 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 contract for or bind any other party in any
manner whatsoever. This Agreement confers no rights of any kind upon any third
party.
11.2 Governing Law. This Agreement shal be governed in all respects by the laws
of the State of New York without reference to its principles of conflicts of
laws.
11.3 Successors and Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors and assigns of the parties hereto; provided, however, that neither
party may assign its rights hereunder without the prior written consent of the
other, which consent shall not be unreasonably withheld.
11.4 Entire Agreement; Amendment. This Agreement (including all Exhibits)
constitutes the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated, except by a
written instrument signed by the parties hereto.
11.5 Notices, etc. (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:
To IDT:
IDT Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000)000-0000
Attn: Xxxxxx Xxxxxx, Chief Operating Officer
To PSI:
PSINet Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date first above written, and the persons signing warrant that they are duly
authorized to sign for and on behalf of the respective parties.
PSINET INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Operating Officer
IDT CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chief Operating Officer
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