EXHIBIT 10.18
SERVICES AGREEMENT
THIS AGREEMENT dated as of the 1st day of July, 1997, by and between
XXXXXXXXX HOLDINGS, INC., a Delaware corporation ("Xxxxxxxxx") and FACILICOM
INTERNATIONAL, L.L.C. ("FaciliCom").
WHEREAS, Xxxxxxxxx desires to provide FaciliCom and FaciliCom has agreed to
accept certain financial accounting services in accordance with the terms and
conditions set forth below.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound hereby, the parties agree as follows:
1. Services. Xxxxxxxxx, or any one or more of its affiliates, shall
provide to FaciliCom certain financial accounting services, such as payroll
processing, accounts payable processing, income tax return preparation and
paralegal services and any other services it is capable of providing based on
FaciliCom's needs.
2. Cost. Xxxxxxxxx shall charge the following amount for the cost per
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service:
Payroll Processing $2.75 per check
Accounts Payable Processing $2.75 per check
Income Tax Return Preparation $75.00 per hour
Paralegal Services $40.00 per hour
Xxxxxxxxx shall have the right to increase the cost of its services after
giving FaciliCom at least thirty (30) days written notice.
3. Term. The term of this Agreement shall be for a period of five (5)
years. Either party shall have the right to terminate this Agreement during the
term upon giving one hundred eighty (180) days prior written notice to the other
party. In the event of breach of any provision of this Agreement by either
party, the non-defaulting party shall give the defaulting party written notice,
and the defaulting party shall cure the breach within one hundred eighty (180)
calendar days of such notice. If the defaulting party does not cure such breach,
the nondefaulting party may, at its sole option, terminate this Agreement and
shall be entitled to pursue all available remedies for such breach.
4. Billing for Services Rendered.
4.1 Xxxxxxxxx shall xxxx FaciliCom for services rendered in accordance with
this Agreement on a monthly basis. Each invoice shall be for a period of
approximately thirty (30) calendar days, depending upon data processing cutoff
dates used by Xxxxxxxxx in each state or Company.
4.2 If FaciliCom fails to pay or file a claim for an amount by the
payment due date appearing on the Xxxxxxxxx invoice, late payment charges will
accrue on the unpaid balance at the less of:
The highest interest rate (in decimal value) allowed
by state law or twelve percent (12%) per annum simple
interest for the number of calendar days from the day
following the payment due date up to and including the
date payment is actually made.
4.3 The payment due date for each service invoice shall be the first
business day that is not less then thirty (30) calendar days following the
invoice preparation date. Xxxxxxxxx shall use its best efforts to mail the
invoice on the invoice preparation date.
4.4 Xxxxxxxxx shall have the right to adjust the invoices sent to
FaciliCom up to one (1) year following FaciliCom's receipt of the invoices in
the event Xxxxxxxxx determines that an error in the cost allocation has been
made.
5. Date Retention. All data associated with the provision and
receipt of service(s) pursuant to this Agreement shall be maintained for the
greater of (a) the retention time required by law or regulation for maintaining
information, or (b) two (2) years.
6. Limitation of Liability.
6.1 Each party's liability to the other for any loss, cost, claim,
injury, liability or expense, including reasonable attorney fees, relating to or
arising out of any negligent act or omission in its performance of obligations
arising out of this Agreement, shall be limited to the amount of direct damage
actually incurred. With respect to claims arising out of this Agreement, either
party's cumulative liability, whether in contract, tort or otherwise, shall not
exceed the total charges applicable to the billing and collection services
rendered under this Agreement.
6.2 In no event shall either party be liable to the other for any
indirect, special, or consequential damage of any kind whatsoever.
7. Force Majeure. Neither party shall be held liable for any delay
or failure in performance of any part of this Agreement from any cause beyond
its control and without its fault or negligence, such as acts of God, acts of
civil or military authority, government regulations, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, strikes, power blackouts, unusually severe weather
conditions, failure to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation on common
carriers.
8. Assignment. The parties agree not assign or transfer any
interest in this Agreement without the prior written approval of the other
party.
9. Notices. All notices required under this Agreement shall be in writing
and shall be sent by facsimile and regular mail to Xxxxxxxxx Holdings, Inc., One
Xxxxxxxxx Place, Butler, Pennsylvania 16001 and to FaciliCom International,
L.L.C., 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, XX 00000 or to any
other address designated by such party.
10. Amendments. No change, modification or amendment of any of the terms,
provisions or conditions of this Agreement shall be effective unless made in
writing and executed by the parties hereto or their successors and assigns.
11. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, personal
representatives, heirs and assigns.
12. Governing Law. This Agreement is executed in and shall be construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all negotiations, preliminary
agreements and all prior and contemporaneous discussions and understandings of
the parties in connection with the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first written above.
ATTEST: XXXXXXXXX HOLDINGS, INC.
By: /s/ /s/ Xxxxx Capiletti
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ATTEST: FACILICOM INTERNATIONAL, L.L.C.
By: /s/ By: /s/
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