RECIPROCAL ENHANCED SERVICES INTERNATIONAL AGREEMENT
BETWEEN
NOVOLINK MANAGEMENT, LLC.
AND
NYN INTERNATIONAL LLC.
This ENHANCED SERVICES INTERNATIONAL AGREEMENT ("Agreement"), dated this 23 day
of November, 2005 (the "Effective Date"), is entered into by and between, NYN
International LLC a Texas Corporation, having its business offices at 0000
Xxxxx Xxxx. Xxxxxxx, XX 00000 ("Company"), and NovoLink Management, LLC, a
Nevada Corporation with offices located at 000 Xxxxx Xxxxxxxxxxx Xxxxx, Xxx 000,
Xxxxxxxxxxx, Xxxxx 00000 Xxxxxx Xxxxxx of America ("NOVOLINK"), hereinafter
individually referred to as "Party" and collectively referred to as "Parties".
RECITALS
--------
WHEREAS, the Parties are providers of enhanced international telecommunication
services; and
WHEREAS, Company desires to purchase certain enhanced services provided by
NovoLink and NovoLink desires to purchase certain enhanced services provided by
Company all as more fully described below on the terms and conditions contained
herein;
NOW THEREFORE, the Parties, in consideration of the mutual covenants and
agreements hereinafter set forth, agree as follows:
1. DESCRIPTION OF SERVICE
------------------------
1.1 SERVICE DESCRIPTION: During the Term of this Agreement as defined
---------------------
herein in section 1.2, each Party shall provide access, via VOIP, to enhanced
services for the other Party as set forth by using the rates in Exhibit "A",
attached hereto and incorporated herein by this reference ("Services"). Each
Party will provide credit terms after each Party's credit has been evaluated and
such terms shall be described in Exhibit "B" attached hereto and
incorporated herein by this reference ("Payment and Billing Terms").
Exhibit A shall set out the termination rates for each minute sent from one
---------
party to be terminated by the other party. Each party may, at its sole
---
discretion and at any time, change the applicable rates due to it, upon 7
---
(seven) days prior written notice for any increase, while decrease will be
---
immediately in effect. Exhibit A shall thereby be deemed amended in accordance
---
with such notice.
1.2 TERM OF SERVICE: This Agreement shall be effective and the
------------------
Parties' obligations shall commence upon the Effective Date of this Agreement,
and this Agreement shall continue for a period of one (1) year from the
Effective Date ("Term"). By mutual consent, this Agreement may be renewed on a
month-to-month basis after the expiration of the initial Term or any subsequent
term, as may be mutually agreeable ("Renewal Term"). If either Party desires to
cancel this Agreement upon the expiration of the initial Term or any Renewal
Term, it shall give the other Party notice of its intent to cancel at least
thirty (30) days prior to the expiration of the current Term or Renewal Term.
This Agreement shall continue and remain in full force and effect until
cancelled by either party upon notice as provided herein.
1.3 ADDITIONAL SERVICE: The Parties may agree to additional
--------------------
telecommunication services during the Term of this Agreement ("Additional
Service"). Any Additional Service shall be set forth as an addendum to this
Agreement and shall otherwise be governed by the terms and conditions of this
Agreement.
1.4 BILLING INCREMENTS: Billing for all calls will be calculated on a
-------------------
per call basis. Unless otherwise stated in a rate addendum or in EXHIBIT "B",
all international calls, with the exception of Mexico, will be billed in one (1)
second increments and subject to 1 (1) second minimum charge. Calls to Mexico
will be billed in one (1) minute increments. All domestic USA calls will be
billed in six (6) second increments and subject to six (6) second minimum
charge.
2. PAYMENT AND BILLING TERMS :
-------------------------------
2.1: TO BE DETERMINED AFTER PARTY'S CREDIT HAS BEEN EVALUATED AND WILL
BE DESCRIBED IN EXHIBIT "B".
2.2 TAXES: Parties acknowledge that the rates indicated in
-----
Exhibit A include all taxes or fees and Parties, upon the execution of this
------
Agreement, expect no additional payment from the other party for the provided
services. Each party
shall be responsible for the collection of all applicable end-user taxes and
fees and the remittance of such taxes and fees to the relevant governmental
authority. Parties shall indemnify and defend each other from and against any
and all actions, suits, proceedings, administrative charges, liens, liabilities,
claims, assessments, fees, interest, and penalties arising out of or in
connection with the other Party's failure to collect and or remit, in a timely
manner, any and all taxes or fees each Party is obligated to so collect and
remit.
3. DISPUTED CHARGES: Should either Party dispute any of the charges on the
-----------------
invoice, it shall indicate the nature of each disputed charges along with its
payment, and submit a detailed "dispute report" within thirty (30) days from the
date of invoice. Said "dispute report" shall set forth in writing all details
concerning the disputed charges. After resolution of the disputed portion of the
invoice, the adjustments, if any, shall be immediately credited to the other
party's account. If any credit dispute is not accepted or denied within thirty
days (30) then the requesting party may accept the credit as affirmed by the
others party failure to respond.
4. PROVISION OF INFORMATION AND CONFIDENTIALITY
------------------------------------------------
4.1 CONFIDENTIAL INFORMATION: The parties understand and agree that
-------------------------
the Terms and Conditions of this Agreement, all documents referenced (including
invoices to each Party for Service provided hereunder) herein, communications
between the parties regarding this Agreement or the Service to be provided
hereunder (including price quotes to each Party for any Service propose to be
provided or actually provided hereunder) and all information regarding the
Customers of either Party, as well as such information relevant to any other
agreement between the parties (collectively "Confidential Information"), are
confidential.
4.2 LIMITED DISCLOSURE: A party shall not disclose Confidential
-------------------
Information unless subject to discovery or disclosure pursuant to legal process,
-
or to any other party other than the directors, officers, and employees of a
party or agents of a party including their respective brokers, lenders,
insurance carriers or 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. Violation by a
party or its agents of 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.
4.3 SURVIVAL AND CONFIDENTIALITY: The provisions of this Section 4 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) one (1) year following the
effective date of this Agreement; or (ii) one (1) year following the termination
of all Service hereunder.
4.4
NON-CIRCUMVENTION: The parties to this Agreement acknowledge that no
-----------------
effort shall be made to circumvent its terms in an attempt to gain commissions,
fees, remuneration's, or considerations to the benefit of any of the parties of
this Agreement, while excluding equal or agreed to benefits to any of the other
parties. Sales information consisting of prospects, leads or direct contact
provided by either party shall be held in confidence, with the benefit of any
revenue earned. Both parties agree not to circumvent the other while utilizing
sales information provided by the origination party. This shall be binding upon
the parties as well as the customers of the parties utilizing the services
contemplated herein. The parties each agree not to circumvent, attempt to
circumvent, or permit any other party or persons on their respective behalf to
circumvent each other in any way, manner or form regarding any transactions
during the term of this Agreement. Accordingly, the parties each agree to
conduct through the other party all of its transactions with any designated
party of the other during the term of this Agreement and not to contact, call
on, solicit, or take away either directly or indirectly any designated or
referred party of the other during the effective period of this Agreement.
5. TERMINATION: This Agreement can be terminated:
------------
5.1 If payment has not been received by the due date described above,
or any extension thereof permitted in writing by the billing Party, for all
charges (including transmission charges, service charges and monthly fixed
charges) billed to the other Party, and or if significant changes(s) occur in
the other Party's ownership or control; and/or if the other Party fails to abide
by all of the terms of this Agreement hereof, including, without limitation, the
other Party's failure or refusal to provide additional security upon the other
Party's request, and/or for any breach of this Agreement, either Party may at
its sole discretion and after two (2) days prior written notice to the other
Party, terminate transmission Services in part or in whole. The damaged Party
reserves the right to collect reasonable attorney's fees and any and all costs
incurred by it in the enforcement of this Agreement whether or not suit is
instituted. Nothing herein shall be construed to constitute a waiver of either
Party's right to declare the other to be in default under this Agreement on
account of such breach, or to terminate this Agreement after the two (2) days
written notice has elapsed and the parties expressly waives and relinquishes any
right to receive any notice longer than such two (2) days which may exist under
any federal, state or local law or regulation; and /or
5.2 If either Party is prohibited from furnishing the Service or if any
material rate or term contained herein is substantially changed by order of the
highest court of competent jurisdiction to which the matter is appealed, the
FCC, or any other federal, state or local government authority, either party may
immediately upon written notice to the other party terminate this Agreement
without liability or further obligation, except for unpaid charges as of the
effective date of such termination;
5.3 If a Party violates the clauses of Paragraph 2, the other Party
shall be free from payment of any amount owed and the contract shall be
immediately terminated.
5.4 Without affecting each Party's right to compensation for services
rendered, the Parties, without waiving any rights set forth in this Agreement or
its Tariff, retains the right to terminate this Agreement after the appropriate
notice has been given to other Party, under any of the following circumstances:
(i) If a Party becomes or is declared insolvent or bankrupt, is the
subject of any proceedings related to its liquidation, insolvency or for the
appointment of a receiver or similar officer for it, makes an assignment for the
benefit of all or substantially all of its creditors, or enters into an
agreement for the composition, extension, or readjustment of all or
substantially all of its obligations;
5.5 A Party may, immediately upon written notice to the other Party and
after complying with the applicable requirements of this subsection, without
incurring any liability except for willful misconduct, terminate this Agreement,
or restrict, suspend, or discontinue providing its Services, if the Party has
reason to believe that the other Party and/or any of its officers, directors,
employees, contractors, agents, and/or servants has engaged or is engaging in
any unethical, illegal, and/or fraudulent use of the Services with the intent to
avoid payment of charges, including, but not limited to, the following:
(i) Violation of or failure to comply with any tariff regulation governing
the furnishing of Services; and/or
(ii) Violation of or failure to comply with any federal, state, or local law
or regulation governing the use of the Services or the resale or sharing of such
Services to others; and/or
(iii) Actions that are consistent with patterns of known fraudulent
activity, such as to indicate an intention to defraud the other Party once
Services are provided.
5.6 Termination of this Agreement by one Party shall not affect that
Party's right to compensation for services rendered/provided.
6. NO WARRANTIES: THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED,
--------------
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION: Each Party agrees that
---------------------------------------------
the other shall in no event be liable for any loss, expense or damage for (i)
loss of revenue, profits, savings, business or goodwill, and (ii) exemplary,
proximate, consequential, or incidental damages and expenses of any type or
nature on account of any breach or default hereunder by the other, or on account
of the use, nonuse, or interruption in the provision of the Services, except as
it applies to SECTION 2 above.
7.1 INDEMNIFICATION: Each Party agrees to indemnify, defend, and
---------------
hold each other and their Affiliates free and harmless from and against any and
all loss, cost, liability, or expense (including court costs and actual fees of
attorneys and other professionals) arising out of or in connection with the
Service, including, but not limited to any such loss, cost, liability, or
expense arising out of or resulting from any claim brought by a customer or
other third party utilizing the other Party's services for any special,
incidental, indirect or consequential damages of any kind whatsoever, whether
such damages arise from the use, inability to use, failure of, defects in, the
conditions of, delay in delivery of, non-delivery of, or quality of the Service,
or any component thereof.
8. ENTIRE AGREEMENT: This Agreement (including its exhibits)
-----------------
supersedes and merges all prior agreements, promises, understanding, statements,
--
representations, warranties, indemnities and covenants and all inducements to
the making of this Agreement relied upon by either Party herein, whether written
or oral, and embodies the Parties' complete and entire agreement with respect to
the subject matter hereof. No statement or agreement, oral or written, made
before the execution of this Agreement shall vary or modify the written terms
hereof in any way whatsoever.
9. SEVERABILITY: In the event that any portion of this Agreement is found
------------
to be invalid, illegal or not binding for any reason whatsoever, the remaining
portions of this Agreement shall remain in effect and binding upon the parties.
10. GOVERNING LAW: This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Texas with venue in the city of
Houston, Texas.
11. DISPUTE RESOLUTION: The Parties will in good faith negotiate to
-------------------
resolve any dispute arising out of or relating to this Agreement promptly
between representatives who have authority to settle the controversy. Any
dispute arising out of or relating to this Agreement that have not been resolved
will be finally settled by arbitration conducted in accordance with the Texas
Arbitration Act, Section 17.001 et seq. of the Texas Civil Practice and Remedies
Code. The location of the arbitration shall be in Houston, Xxxxxx County, Texas
by the American Arbitration Association unless agreement by mutual consents of
the Parties to the contrary. Judgment upon the award rendered by the
arbitrator(s) may be entered by any court with Jurisdiction. The Parties agree
that under no circumstances will either Party file or cause to be filed lawsuits
in any court.
12. REGULATIONS: This Agreement is made expressly subject to all present
-----------
and future valid orders and regulations of any regulatory body having
jurisdiction over the subject matter hereof and to the laws of the United States
of America, any of its states, or any foreign governmental agency 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, regulation, or law,
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 form, intent, and purpose of the Agreement.
13. REPRESENTATION: The Parties acknowledge and agree that the relationship
--------------
between them is solely that of independent contractors and nothing contained
herein should be deemed, interpreted, or construed as creating a joint venture,
partnership or agency relationship between the Parties. Neither Party, nor its
respective employees, agents or representatives, has any right, power or
authority to act or create any obligation, express or implied, on behalf of the
other Party.
14. FORCE MAJEURE: The Parties' obligations under this Agreement are
--------------
subject to, and neither Party shall be liable for delays, failures to perform,
damages, losses or destruction, or malfunction of any equipment or any
consequence thereof caused or occasioned by, or due to, fire, flood, water, the
elements, labor disputes or shortages, utility curtailments, power failures,
explosions, civil disturbances, governmental actions, shortages of equipment for
supplies, unavailability of transportation, act or omission of third Parties.
Each Party, however shall use reasonable efforts under the circumstances to
avoid or remove such causes for non-performance and shall proceed to perform
with reasonable dispatch whenever such causes are removed or cease.
15. NO WAIVER: The failure of either Party to enforce or insist upon
----------
compliance with any of the provision of the Agreement or the waiver thereof, in
any instance, shall not be construed as a general waiver or relinquishment of
any other provisions of the Agreement.
16. NOTICES: Except as to invoices as provided in Exhibit "b" section
-------
"Terms of Payment", all notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service: If served personally on the party to whom notice
is to be given, or within two (2) days after mailing if mailed to the party to
whom notice is to be given, by certified mail return receipt or overnight
courier and properly addressed to the party at the address set forth immediately
below, or any other address that a party may designate by written notice to the
others.
If to NOVOLINK: If to COMPANY:
Contract related:
NovoLink Management, LLC. Contract related:
Contracts .
xxxxxxxxx@xxxxxxxx.xxx
----------------------
000 Xxxxx Xxxxxxxxxxx Xxxxx xxxxxxx@xxxxxx.xxx
------------------
Ste 103 0000 Xxxxx Xxxx.
Xxxxxxxxxxx, Xxxxx 00000
000-000-0000 Main # Xxxxxxx, XX 00000
000-000-0000 Fax # 000 000 0000
Billing to NOVOLINK:
Novolink Management, LLC
Billing
xxxxxxx@xxxxxxxx.xxx
--------------------
000 Xxxxx Xxxxxxxxxxx Xxxxx
Xxx 000 Billing to COMPANY:
Xxxxxxxxxxx, Xxxxx 00000
000-000-0000 Fax #
Same
----
Rates to NOVOLINK:
Novolink Management, LLC.
Xxxx Xxxxxxxx
Xxxxx Xxxxxx
xxxxx@xxxxxxxx.xxx Rates to COMPANY:
------------------
281-652-4800 Ph. 000-000-0000 Ph
000-000-0000 Fax 000-000-0000 Fax
Same
----
17. COUNTERPARTS: This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and
------------------------
inure to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that either Party shall not assign or transfer its
rights or obligations under this AGREEMENT without the prior written consent of
the other Party, which consent shall not be unreasonably withheld or delayed,
and further provided that any assignment or transfer without such consent shall
be void.
19. FURTHER ACTS: Each party to this Agreement agrees to perform any
-------------
further acts and execute and deliver any documents that may be reasonably
necessary to carry out the provisions of this Agreement.
20. AUTHORITY: Each person executing this Agreement represents and
---------
warrants that they have full power to enter into this Agreement on behalf of the
Party hereto and that each Party has the full power to carry out its respective
obligations pursuant to this Agreement. Further, each person executing this
Agreement on behalf of a Party also represents and warrants that they have
obtained all corporate, third party approvals necessary to enter into this
Agreement and carry out the transaction contemplated thereby.
21. ATTORNEYS FEES: The prevailing Party in any action, suit,
---------------
proceeding, arbitration, or mediation shall be entitled to recover, in addition
--
to any other available remedies, their actual fees and costs incurred in
connection with the action, suit, proceeding, arbitration or mediation.
22. MODIFICATION OF CHARGES: Each Party reserves the unilateral right to
--------------------------
change, add or delete Service offerings and/or modify charges for Service
offerings including those rates listed in all attached Exhibits, upon five (5)
days notice to the other Party. However, in the event either Party is in
default, or breach of this Agreement, the other Party may unilaterally and
immediately upon written notice to the other Party modify or amend the rates and
or service on an immediate, zero (0) day written notice to the other Party.
IN WITNESS WHEREOF, the Parties acknowledge that each of the provisions of this
Agreement has been expressly agreed to and each has caused this Agreement to be
signed and delivered by its duly authorized officer representatives as of the
"Effective Date" written above.
NOVOLINK MANAGEMENT, LLC. NYN INTERNATIONAL LLC
By________________________ By___________________________
Name: Xxxxx Xxxxx Name: Xxx Xxxxxx
Title: CEO Title: General Manager
Date________________________ Date ______________________
EXHIBIT A
RECIPROCAL TELECOMMUNICATION SERVICES AGREEMENT
NOVOLINK - INITIAL DESTINATIONS AND RATES
COMPANY - INITIAL DESTINATIONS AND RATES
EXHIBIT "B"- PAYMENT AND BILLING TERMS :
----------------------------------------
PAYMENT AND BILLING TERMS :
-------------------------------
CREDIT RELATIONSHIP: Each Party shall at all times comply with the
---------------------
other Party's initial and continuing credit approval procedures and policies.
Each Party reserves the right to withhold initiation or full implementation of
service under this Agreement pending initial satisfactory credit review and
approval thereof which may be conditioned upon terms specified, including, but
not limited to, security for payments due hereunder in the form of a prepayment,
Letter of Guarantee (LOG), an Irrevocable Standby Letter of Credit (LOC) issued
by a US bank with language acceptable to the other Party, Prepayment, or other
financial statements or other indications of financial circumstances. As may be
determined by its sole discretion at any time when credit exposure between
parties is 20% above the existing deposit, the exposed Party may require a new
or increased deposit, guarantee or LOC, to secure the other party's payments for
the term of the Agreement. Failure to provide requested security shall
constitute a material breach of this Agreement.
TERMS OF PAYMENT: EACH PARTY HEREBY ACKNOWLEDGES THAT CHARGES FOR THE
------------------
PROVISION OF TELECOMMUNICATION SERVICES WILL BE BILLED ON A WEEKLY BASIS AND
THAT PAYMENT FOR SUCH SERVICES IS DUE AND PAYABLE IN US DOLLARS FIVE (5) DAYS
from the date that the invoice is received by the receiving party. Net
Settlement of the invoice shall occur, such that the balance due from one Party
shall be offset by the balance due from the other Party (the "Net Settlement
Amount"). The debtor Party shall pay the Net Settlement Amount to the creditor
Party within the applicable Terms of Payment period. Late payments will be
assessed a late charge of 1.5% per month or the maximum amount permitted by law,
whichever is less. Payments will be made by wire transfer or such other method
as may be specified from time to time. All Payments shall be made by wire
transfer and the paying party shall be responsible and bear all the bank cost
and charges related to wire transfers.
Novolink's wiring instructions: Company's wiring
instructions:
Xxxxx Fargo Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
ABA 121 000 248
NovoLink Communications, Inc.
Acct# 0000038011
FAILURE TO MAKE PAYMENT: Should funds not be received by the
---------------------------
other Party within ten (10) business days of invoice being posted, the other
Party shall be in material breach of its obligations under this section. In
addition to and cumulative with any other rights or remedies available to the
other Party, each Party may, in its sole discretion, apply any prepayment,
guarantee or irrevocable letter of credit to the unpaid invoice, and either (i)
terminate Service to the other Party recovering the balance owed, or (ii) it may
terminate this Agreement and recover its damages. In the event of any monetary
default by either Party, the other Party shall accrue interest in the amount of
one and one-half percent (1.5%) per month, or the maximum amount permitted by
law, whichever is less, on any outstanding sum from the date on which such
amount becomes due until the date on which it is paid unless the invoice, or
part thereof, has been correctly disputed. Such interest shall accrue day by
day and shall not be compounded.
