RECIPROCAL TELECOMMUNICATIONS AGREEMENT
AGREEMENT made this 4th day of December, 1997 by and between GULFSAT
COMMUNICATIONS COMPANY (hereinafter "CUSTOMER"), X.X. Xxx 0000 Xxxxx, Xxxxxx and
PICKNET, INC., located at 000 Xxxxx 00 Xxxx, Xxxxx Xxxxx, Xxxxx, Xxx Xxxxxx
00000 (hereinafter "PICK").
WITNESSETH:
WHEREAS, PICK and Customer are in the business of providing telecommunications
services; and
WHEREAS, Customer desires to purchase telecommunications services from PICK and
PICK desires to purchase telecommunications services from Customer;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the parties agree as
follows:
1. Services.
(A) PICK agrees to furnish to Customer, and Customer agrees to purchase from
PICK, the telecommunications services set forth in Exhibit A attached hereto.
(B) Customer agrees to furnish to PICK and PICK agrees to purchase from
Customer, the telecommunications services as set forth in Exhibit B attached
hereto.
(C) Interconnection between Customer and PICK, for purposes of performance
hereunder, shall occur as agreed between the parties.
(D) It is understood that all Services provided by the parties hereunder are
provided for resale by the other party to its end users, customers or
subscribers.
2. Terms. This Agreement shall commence on or before the 2nd day of January,
1998 (the "Commencement Date") and continue for a period of one (1) year. This
Agreement shall thereafter continue, on the same terms and conditions, on a
month-to-month basis unless either party notifies the other party in writing not
less than thirty (30) days prior to the termination date of its desire to
terminate this Agreement.
3. Rates.
PICK and Customer agree that each is granting the other most favorable price
per minute rates in the Exhibits attached to this Agreement as follows:
(A) During the term of this Agreement, PICK shall charge for the
telecommunications services, and Customer shall pay for such telecommunication
services, that amount as determined by using the appropriate rates set out in
Exhibit A.
(B) During the term of this Agreement, Customer shall charge for the
telecommunication services, and PICK shall pay for such telecommunication
services, that amount as determined by using the appropriate rates set out in
Exhibit B.
(C) PICK and Customer shall have the right to modify the rates and conditions
set forth in Exhibits "A" and "B" at any time during this Agreement, but shall
give the other party at least seven (7) days prior notice. Both parties agree to
provide each other with initial traffic projections, by country, to the top ten
(10) countries they are interested in purchasing rates for from the other.
Thereafter each will provide such projections to the other on a quarterly basis.
Projections shall be given on the Forms attached as Exhibit 2A and 2B (to this
Agreement) respectively as appropriate.
(D) Billing shall include raw CDR (unrated) and completely rated summaries by
country showing number of calls, number of minutes and corresponding charges.
(E) All calls other than calls to Mexico, will be billed with a thirty second
minimum and thereafter in six-second increments rounded to the next highest
one-tenth of a minute per all record. Calls to Mexico are billed with a one
minute minimum and thereafter in one minute increments.
4. Charges and Payment Terms.
(A) PICK and Customer hereby acknowledge the charges for the provision of
Service will be billed as provided herein and that payment for such Service
shall be payable in U.S. dollars. For each weekly cycle during the term of this
Agreement, PICK and Customer will provide the other party with a faxed invoice
for Service provided. The invoice amounts billed and payable by PICK and
Customer during any weekly cycle shall be offset, and the party which has a
balance payable after such netting shall make payment to the other party on or
before the second (2nd) day of the following month. Late payments will be
assessed a late charge of 1.5% per month or the maximum amount permitted by law,
whichever is less. Payments shall be made by wire transfer or such other methods
as may be agreed by the parties.
(B) Should either PICK or Customer dispute any of the charges on the weekly
invoice, it shall notify the other party of the disputed charges not later than
thirty (30) days from the date of invoice. Said dispute shall set forth all
details concerning the disputed charges in writing. In the event of a dispute,
the entire invoice shall nevertheless be paid in accordance with the payment
terms set forth herein. After resolution of the disputed portion of the invoice,
the adjustments, if any, shall be immediately credited to the other party's
account.
(C) Each party hereby waives any deposit requirement from the other for
providing services under this Agreement.
5. Warranty. PICK and Customer will use reasonable efforts under the
circumstances to maintain overall network quality. The quality of Service
provided hereunder shall be consistent with
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other common carrier industry standards, government regulations and sound
business practices. PICK AND CUSTOMER MAKE NO OTHER WARRANTIES ABOUT THE SERVICE
PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
6. Continuing Relationship and Termination. This Agreement and the relationship
of the parties may be terminated by the non-defaulting party in accordance with
applicable provision hereof and/or the occurrence of any of the following events
which shall constitute a default:
(A) Material breach of this Agreement after notice thereof and failure of the
breaching party to cure such breach: (i) within three (3) days of receipt of
such notice where such breach involves a failure to make payments when due and
(ii) within twenty (20) days of receipt of such notice for all other breaches;
(B) The adjudication of bankruptcy of either party under any Federal, state
or municipal bankruptcy or insolvency act, or the appointment of a receiver or
any act or action constituting a general assignment by a party of its properties
and interest for the benefit of creditors.
(C) The determination by any governmental entity having jurisdiction over the
Service provided under this Agreement that the relationship of the parties
and/or Services provided hereunder are contrary to then existing laws.
7. Taxes If Applicable. The parties acknowledge and understand that all charges
stated in attached Exhibits are computed exclusive of any applicable use,
excise, gross receipts, sales and privilege taxes, duties, fees or other similar
liabilities (other than general income or property taxes). Such Additional
Charges shall be paid by the party receiving services in addition to all other
charges provided for herein. All applicable taxes, duties, fees or other
liabilities shall be billed to the appropriate party by the other party unless
such party provides the other party with applicable tax exemption
documentation.. Each party is solely liable for and hereby indemnities and holds
the other party harmless from filing all applications, forms, reports, returns,
statements, and other documents and information with any payment of all taxes
and/or assessments to all local, county, state, federal, and other taxing
authorities having jurisdiction with respect to any and all charges to each
party's end users or customers for the services, including without limitation,
any governmental agency or authority in any foreign country.
8. Suspension of Services. In the event payment in full is not received from
either party when due, the other party shall have the right, after giving the
defaulting party two (2) days prior notice after the due date to suspend all or
any portion of the Service to the defaulting party until such time as such party
has paid in full all charges then due, including any late fees.
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9. Liability; General Indemnity.
(A) Limited Liability IN NO EVENT WILL EITHER PARTY 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 NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
THE LIABILITY OF PICK AND CUSTOMER WITH RESPECT TO THE INSTALLATION (INCLUDING
DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR
RESTORATION OF ANY SERVICE OR FACILITIES OFFERED UNDER THIS AGREEMENT SHALL NOT
EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THIS AGREEMENT TO THE
PERIOD DURING WHICH SERVICES WERE AFFECTED. FOR THOSE SERVICES WITH MONTHLY
RECURRING CHARGES, THE LIABILITY OF EITHER PARTY IS LIMITED TO AN AMOUNT EQUAL
TO THE PROPORTIONATE MONTHLY RECURRING CHARGES FOR THE PERIOD DURING WHICH
SERVICE WAS AFFECTED.
(B) General Indemnity. In the event parties other then PICK and Customer
shall have use of the Service, then PICK and Customer agree to forever indemnify
and hold each other harmless from and against any and all claims, demands,
suits, actions, losses, damages, assessments or payments which may be asserted
by said parties arising out of or relating to any defect in the Service.
10. Force Majeure. If either party's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable 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 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 such party shall
be excused from such performance on a day-to-day basis to the extent of such
restriction or interference. Such party shall notify the other and use
reasonable efforts under the circumstances to avoid or remove such causes of
nonperformance and shall proceed to perform with reasonable dispatch whenever
such causes are removed or cease. This provision shall not, however, relieve
either party from making any payment when due.
11. Notices. All notices pursuant to this Agreement shall be deemed given when
delivered personally or sent by registered mail or facsimile or overnight
carrier (such as Federal Express), charges prepaid, as follows:
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PICKNET, INC. GULFSAT COMMUNICATIONS COMPANY
000 Xxxxx 00 Xxxx, Xxxxx Xxxxx X.X. Xxx 0000
Xxxxx, XX 00000 Safat, Kuwait
FAX: (000) 000-0000 FAX: 000-000-0000
FAX: (000) 000-0000 Attn: Xxxxxx X. Xxxxx,
Att: Xxxxx Xxxxx, President Executive Director
Notice of change of address shall also be governed by this Paragraph.
12. 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.
13. Partial Invalidity. If any term or provision of this Agreement shall be
found to be illegal or unenforceable, then notwithstanding such illegality or
unenforceability, this Agreement shall remain in full force and effect and such
terms or provision shall be deemed to be deleted.
14. Exclusive Remedies. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
15. Use of Service. PICK and Customer agree to provide the Service specified
hereunder upon condition that the Service shall not be used for any unlawful
purpose. The provision of Service will not create a partnership or joint venture
between the parties or result in a joint communication service offering to any
third party.
16. Choice of Law. This Agreement shall be construed in accordance with the laws
of the State of New Jersey. However, any controversy or claim arising out of the
parties, or breach which has not been cured, shall be settled by binding
arbitration in accordance with Commercial Arbitration Rules of the American
Arbitration Association and judgment upon the award of the Arbitrators may be
entered in any court having jurisdiction.
17. Proprietary Information.
(A) Confidential Information. The parties understand and agree that the terms
and conditions of this Agreement, and documents referred (including invoices to
Customer for Service provided hereunder) herein, communications between the
parties regarding this Agreement or the Service to be provided hereunder
(including price quotes to Customer or PICK for any Service proposed to be
provided or actually provided hereunder) and all information regarding the
customers of Customer or PICK, as well as such information relevant to any other
agreements between the parties (collectively "Confidential Information"), are
confidential as between Customer and PICK.
(B) Limited Disclosure. A party shall not disclose Confidential Information
unless subject
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to discovery or disclosure pursuant to legal process, or unless required by the
SEC since both parties are public corporations, or to any other party other than
the directors, officers, and employees of a party or agent's of a party
including their respective brokers, lenders, insurance carriers or prospective
purchasers of the party's business 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. Likewise, each party will give notice
of any disclosure to the SEC to the other party. Violation by a party or its
agents of the foregoing provision shall entitle the non-disclosing party, at its
option, to obtain injunctive relief without a showing of irreparable harm or
injury and without bond.
(C) Press Releases. The partied further agree that any press release,
advertisement or publication generated by a party regarding this Agreement, the
Service provided hereunder or in which a party desires to mention the name of
the other party's parent or affiliated company(ies), will be submitted to the
non-publishing party for its written approval prior to publication.
(D) Survival and Confidentiality. The provisions of this Paragraph will
be effective as of the date of this Agreement and remain in full force and
effect for a period equal to the longer of (i) five (5) years following the
effective date of this Agreement; or (ii) five (5) years following the
termination of all Service hereunder.
18. Successors and Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors or assigns,
provided, however, that neither party shall assign or transfer its rights or
obligations under this Agreement without the prior written consent of the other
party, which shall not unreasonably be withheld and further provided that any
assignment or transfer without such consent shall be void.
19. General.
(A) Survival of Terms. The terms and provisions contained in this Agreement
that by their sense and context are intended to survive the performance thereof
by the parties hereto shall so survive the completion of performance and
termination of this Agreement, including, without limitation, provision for
indemnification and the making of any and all payments due hereunder.
(B) Headings. Descriptive headings in this Agreement are for convenience only
and shall not affect the construction of this Agreement.
(C) Industry Terms. - Words having well-known technical or trade meanings
shall be so construed, and all listings of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to those
listed, as the context reasonably requires.
(D) Rule of Construction. No rule of construction requiring interpretation
against the draftsman hereof shall apply in the interpretation of this
Agreement.
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20. Entire Agreement. This Agreement consists of all of the terms and conditions
contained herein; in executed Service Schedules that are identified herewith;
and in documents incorporated herein specifically by reference. This Agreement
constitutes the complete and exclusive statement of the understandings between
the parties and supersedes all proposals and prior agreements (oral or written)
between the parties relating to Service provided hereunder. No subsequent
agreement between the parties concerning the Service shall be effective or
binding unless it is made in writing and subscribed to by authorized
representatives of Customer and PICK.
ACCEPTED and AGREED:
PICKNET, INC. GULFSAT COMMUNICATIONS COMPANY
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- -----------------------------------
Xxxxx Xxxxx, President Xxxxxx X. Xxxxx, Executive Director
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