Innosys Communications, Inc.
INNOSYS
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement ("Agreement") is
entered into this 18th day of December, of 1998, by and
between INNOSYS COMMUNICATIONS, INC. ("INNOSYS"), an Illinois
Corporation with its principal place of business at 000 Xxxxx
Xxx Xxxxxx, Xxxxxxxx, XX 00000 U. S. A. and POPstar Global
Communicatons, Inc.("Company"), a British Virgin Islands
corporation with its principal place of business at 000 Xxxx 0xx
Xxxxxx Xxxxxxxxx, XX Xxxxxx X0X 0X0.
WITNESSETH:
INNOSYS agrees to provide and Company agrees to accept switched
telecommunications services and other associated services
(collectively "Service"), as described in Service Schedule(s)
identified herewith, subject to the terms of this Agreement.
1. EFFECTIVE DATE - MINIMUM SERVICE TERM
A. Effective Date This Agreement shall be effective
between the parties as of the date first written above.
B. Start of Service INNOSYS obligation to provide and
Company's obligation to accept and pay for Service shall be
binding to the extent provided for in this Agreement upon the
execution of a Service Schedule by both parties and shall
commence with respect to any Service as of the later of the
Company's designated "Requested Service Date" set forth on each
Service Schedule or the date Service becomes available ("Start
of Service"). Start of Service for particular Switched Services
shall be further described in the relevant Service Schedule(s).
C. Minimum Service Term Except as otherwise provided
herein, the parties' obligations hereunder with respect to
Switched Service shall continue from the Start of Service Date
and over the "Minimum Service Term" set forth in the relevant
Service Schedule. Upon the expiration of the Minimum Service
Term relevant to any Service, the service in question will
continue to be provided on a month-to-month basis subject to
termination by either party upon thirty (30) days prior written
notice to the other party. Company shall be liable to pay
INNOSYS for all charges associated with the Service in question
during the Minimum Service Term and any month-to-month
continuation thereof as well as any and all charges for actual
and/or minimum usage of the Service whether such usage occurred
during the Minimum Service Term or otherwise.
2. SERVICE SCHEDULES Service requested by Company
hereunder shall be requested on INNOSYS Service Schedule forms
and subscribed to by authorized representatives of Company and
INNOSYS (the "Service Schedule"). Each Service Schedule shall
reference this Agreement and shall become a part of this
Agreement to the extent that it describes the Service, Requested
Service Date, Service Interconnection, if any, relevant to the
Service in question, charges, specific Service terms and other
information necessary for Innosys to provide Service to Company.
3. SERVICE INTERCONNECTIONS
(A) Technical Requirements In order to utilize certain
Switched Service, one or more full time dedicated connections
between Company's network ("Company Location") and the INNOSYS
Network at one or more INNOSYS designated locations ("INNOSYS
POP") must be established ("Service Interconnection"). Unless
otherwise indicated in a Service Schedule, Company shall be
responsible for establishing each Service Interconnection over
facilities subject to INNOSYS's approval.
(B) Interconnection Loading Company must provide an
average loading on each DS-l (or DS-l equivalent) comprising the
Service Interconnection at each INNOSYS location of not less
than the number of minutes of usage per calendar month of
100,000 minutes per month minimum average per DS-1 span.
Company's intention is to fully utilize each DS-1 and will
utilize reasonable commercial efforts to do so. Innosys may, at
its option, remove the circuit if ninety (90) percent
utilization is not achieved after the ramp up period of three
(3) months.
To the extent available as determined by INNOSYS and subject to
INNOSYS standard terms, conditions and charges, INNOSYS will
provide space at INNOSYS location for Service Interconnections.
Company will be responsible for the provision of echo
cancellation equipment at Company's end of the Service
Interconnections.
4. COMPANY RESPONSIBILITIES
(A) Company Facilities Company has sole responsibility
for the installation, testing, operation of and costs associated
with facilities, services and equipment other than that
specifically to be provided by INNOSYS as described in a Service
Schedule ("Company Facilities). In no event will the untimely
installation or non-operation of Company Facilities relieve
Company of its obligation to pay charges for Service provided by
INNOSYS. If Company is responsible for establishing a Service
Interconnection over facilities other than those controlled by
INNOSYS, INNOSYS shall not be obligated to provide Service
relevant thereto if the Service Interconnection in question is
not activated within sixty (60) days following the Requested
Service Date.
(B) Expedite Charges Should Company request
expeditious Services and/or changes to orders and INNOSYS agrees
to such request, INNOSYS will pass through the charges assessed
by any supplying parties involved at the same rate to Company.
INNOSYS may further condition its agreement with such request
upon Company's payment of additional charges to INNOSYS.
(C) Customer Service Company shall not be relieved of
any obligation under this Agreement by virtue of the fact that
Service is ultimately used by a customer of Company ("End
User"). Company shall be solely responsible for End User
solicitation, service requests, creditworthiness, customer
service, billing and collection. Company shall be solely liable
for, and shall not be relieved of any obligation hereunder on
account of, amounts it cannot collect from End Users for any
reason, and billing adjustments it grants End Users for any
reason including adjustments for fraudulent charges, directory
assistance or any other form of credit.
(D) Fraudulent Calls Company shall indemnify and hold
INNOSYS harmless from all costs, expenses, claims or actions
arising from fraudulent calls of any nature which may comprise a
portion of the Services to the extent that the party claiming
the calls(s) in question to be fraudulent is (or had been at the
time of the call) an End-User of the Services through Company or
an end-user of The Service through Company's customer
distribution channels. Company shall not be excused from paying
INNOSYS for Services provided to Company or any portion thereof
on the basis that fraudulent calls comprised a corresponding
portion of the Services. In the event INNOSYS discovers
fraudulent calls being made (or reasonably believes fraudulent
calls are being made), nothing contained herein shall prohibit
INNOSYS from taking immediate action (without notice to Company)
that is reasonably necessary to prevent such fraudulent calls
from taking place, including without limitation, denying
Services to particular ANI's or terminating Service to or from
specific locations. INNOSYS shall not, however, have any
obligation to monitor the Service or take any other action to
detect fraudulent calls.
(E) Licenses and State Certifications Company warrants
that in all jurisdictions in which it provides long distance
services that require licensing, registration or certification,
it has obtained the necessary authority from the appropriate
governmental authority. Further, if required by INNOSYS,
Company agrees to provide proof of such authority acceptable to
INNOSYS. In the event Company is prohibited, either on
temporary or permanent basis, from continuing to conduct its
telecommunications operations in any jurisdiction, Company shall
(i) immediately notify
INNOSYS by facsimile, and (ii) send written notice to INNOSYS
within twenty-four (24) hours of such prohibition.
(F) Tax Exemption Company will provide INNOSYS with a
valid tax exemption form to exempt Company, under applicable
law, from taxes that would otherwise be paid by Company. INNOSYS
will invoice Company for taxes that are not covered by tax
exemption certificate properly filed with INNOSYS.
(G) Forecasts Before Company's initial order for
Service, Company shall provide INNOSYS with a forecast regarding
the number of minutes expected to be terminated or originated in
various LATAs, tandems and/or international destinations, so as
to enable INNOSYS to configure optimum network arrangements.
Company will provide INNOSYS with additional forecasts from time
to time upon INNOSYS 's request which shall not be more frequent
than once every three (3) months.
(H) PIU Certification Absent the automatic number
identification ("ANI") of the calling party, Company shall
provide INNOSYS with a written certification (the
"Certification") of the percentage of interstate (including
international) and intrastate minutes of use relevant to the
minutes of traffic to be terminated in the same state in which
the INNOSYS POP is located to which the Service Interconnection
is made. This Certification shall be provided by Company prior
to Start of Service for any Service Interconnection and may be
modified from time to time by Company and subject to
recertification upon the request of INNOSYS which requests shall
not be made unilaterally by INNOSYS more than once each calendar
quarter. Any such modification(s) of Certification(s) shall be
effective as of the first day of any calendar month and
following at least forty-five (45) days notice from Company. In
the event Company fails to make such Certification, the relevant
minutes of use will be deemed to be subject to the Intrastate
Rates provided for the pricing exhibit to Company's Service
Schedule (or, if no such rates are provided, at INNOSYS 's
tariffed intrastate rates). Company agrees to retain all
records which support Company's Certification for a period of
one (1) year or any longer period required by any applicable
regulatory requirements. In the event INNOSYS or any other
third party requires an audit of INNOSYS's interstate/intrastate
minutes of traffic, Company agrees to cooperate in such audit at
its expense and make its call detail records, billing systems
and other necessary information reasonably available to INNOSYS
or any third party solely for the purpose of verifying Company's
interstate/intrastate minutes of traffic. Company agrees to
indemnify INNOSYS for any liability INNOSYS incurs in the event
Company's Certification is different than that determined by the
audit.
5. CHARGES AND PAYMENT TERMS
(A) Taxes Company acknowledges and understands that
all charges stated in Service Schedules are computed by INNOSYS
exclusive of any applicable use, excise, gross receipts, sales
and privilege taxes, duties, fees or other taxes or similar
liabilities (other than general income or property taxes),
whether charged to or against INNOSYS or Company because of the
Service furnished to Company ("Additional Charges"). Such
Additional Charges shall be paid by Company in addition to all
other charges provided for herein.
(B) Modification of Charges INNOSYS reserves the right
to eliminate Services and/or modify charges for Services, upon
not less than seven (7) days prior notice to Company for
domestic Services and upon not less than twenty-four (24) hours
prior notice to Company for international Services, which notice
will state the effective date for the elimination or
modification. If charges are increased, Company reserves the
right to request INNOSYS to discontinue the services immediately
and Innosys is obliged to discontinue the service to Company
without penalty. The request however should be placed within
twenty-four (24) hours after the notice of the increase of charges.
(C) Charges and Payment Terms INNOSYS xxxxxxxx for
Service are made on a weekly basis (or such other basis as may
be mutually agreed to by the parties) following Start of
Service. Service shall be billed at the rates set forth on The
Service Requests. Company will pay each INNOSYS invoice for
Service within five (5) business days of the invoice date set
forth on each INNOSYS invoice to Company ("Due Date"). All
payments due hereunder shall be made in U.S. dollars and made by
such other method(s) as may be specified by INNOSYS from time to
time. If payment is not received by INNOSYS on or before the
Due Date, Company shall also pay a late fee in the amount of the
lesser 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.
(D) Billing Disputes Notwithstanding the foregoing,
Company may deduct from INNOSYS Service xxxxxxxx for amounts
reasonably disputed by Company, provided Company: (i) pays all
undisputed charges on or before the Due Date, (ii) presents a
written statement of any billing discrepancies to INNOSYS in
reasonable detail on or before the Due Date of the invoice in
question, and (iii) negotiates in good faith with INNOSYS for
the purpose of resolving such dispute. In the event such
dispute is resolved in favor of INNOSYS, Company agrees to pay
INNOSYS the disputed amounts together with any applicable late
fees within five (5) business days of the resolution. INNOSYS
and Company agree to make good faith efforts to promptly resolve
any billing disputes. In the event that any dispute cannot be
resolved between the parties, then it shall be settled by
arbitration pursuant to the provisions of Paragraph 16(C)
hereof. INNOSYS shall not be obligated to consider any Company
notice of billing discrepancies which are received by INNOSYS
more than ninety (90) days from the Due Date of the invoice in
question. In the event that Company fails to pay an invoice in
full because of a billing dispute INNOSYS shall have the right,
after giving Company five (5) business days prior notice, to
suspend all or any portion of the Service to Company until such
time as the dispute is resolved.
(E) Suspension of Services In the event payment in
full is not received from Company by the Due Date, INNOSYS shall
also have the right, after giving Company five (5) business days
prior notice, to suspend all or any portion of the Service to
Company until such time as Company has paid in full all charges
then due, including any late fees. Following such payment,
INNOSYS shall be required to reinstate Service to Company only
upon the provision by Company to INNOSYS of satisfactory
assurance (such as a deposit) of Company's ability to pay for
Service and Company's advance payment of the cost of reinstating
Service. If Company fails to make such payment by a date
determined by and acceptable to INNOSYS, Company will be deemed
to have canceled the Service suspended effective the date of
such suspension. Such cancellation shall not relieve Company
for payment liability for the unexpired portion of the Minimum
Service Term relevant to the canceled Service in question.
(F) Credit Company's execution of this Agreement
signifies Company's acceptance of INNOSYS initial and continuing
credit approval procedures and policies. INNOSYS 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 by INNOSYS including, but not limited to, Security
for payments due hereunder in the form of a cash deposit,
guarantee, irrevocable letter of credit or other means. Upon
request by INNOSYS at any time, Company agrees to provide
financial statements or other indications of financial
circumstances. In addition, as may be determined by INNOSYS in
its sole discretion at any time, if the financial circumstances,
payment history or credit exposure of Company is or becomes
unacceptable, INNOSYS may require a new or increased deposit,
guarantee or irrevocable letter of credit, at INNOSYS option, to
secure Company payments for the term of the Agreement. Failure
of Company to provide the requested Security within five (5)
business days after demand by INNOSYS shall permit INNOSYS to
suspend service and/or terminate this Agreement without further
notice.
6. WARRANTY INNOSYS will use reasonable efforts under
the circumstances to maintain its overall network quality. The
quality of Service provided hereunder shall be consistent with
other common carrier industry standards, government regulations
and sound business practices. INNOSYS MAKES 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. Agreement is
contingent upon satisfactory quality testing by Company.
7. CONTINUING RELATIONSHIP AND TERMINATION This
Agreement and the relationship of the Parties may be terminated
in accordance with applicable provisions hereof and/or the
occurrence of any of the following events which shall constitute
a default:
(A) INNOSYS may terminate this Agreement in the event:
(1) Company fails to make any payment when due and
fails to cure such default within five (5) days after receipt of
notice of such default; or
(2) Company fails to furnish security within five (5)
days after demand by INNOSYS pursuant to Paragraph 5(F) hereof.
(B) A party may terminate This Agreement in the event
of:
(1) A material breach of this Agreement by the other
party (other than as specified in Paragraph 7(A) above) which is
not cured by the breaching party within fourteen (14) days after
receipt of notice of such default;
(2) The adjudication of bankruptcy of the other 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 such other party of its
proprieties and interest for the benefit of its creditors; or
(3) 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.
8. LIABILITY AND INDEMNITY
(A) Limited Liability IN NO EVENT WILL 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, THE SERVICE OR THE PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER.
(b) Indemnity In the event parties other than Company
(e.g., End-Users and/or their customers) shall have use of the
Service through Company, then Company agrees to forever
indemnify and hold INNOSYS, its affiliated companies and any
third-panty 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 or
payments which may be asserted by said parties arising out of or
relating to any defect in the Service.
9. 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 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.
Notwithstanding the foregoing, this provision may not be invoked
to with respect to any event listed in Paragraph 7 or to excuse
or delay performance of Paragraphs 5(C), 5(E) or (F).
10. INTERSTATE SERVICE Except with respect to Switched
Service specifically designated as intrastate Service or
international Service, the rates provided to Company in a
Service Schedule are applicable only to Switched Service if such
Service is used for carrying interstate telecommunications
(i.e., Service subject to the jurisdiction of the Federal
Communications Commission). INNOSYS shall not be obligated to
provide Switched Service with end points within a single state
or Switched Service which originates/terminates at points both
of which are situated within a single state. In those states
where INNOSYS is authorized to provide intrastate service (i.e.,
telecommunications transmission services subject to the
jurisdiction of the state regulatory authorities), INNOSYS will,
at its option, provide intrastate Service pursuant to applicable
state laws, regulations and applicable tariff, if any, filed by
INNOSYS with state regulatory authorities as required by
applicable law.
11. NETWORK PROTECTION In the event Company's Service
traffic volumes result in a lower than industry standard
completion rate or otherwise adversely affect the INNOSYS
network (including, but not limited to a looping situation where
Company's traffic is delivered by INNOSYS to another carrier for
termination and ultimately returned to INNOSYS), INNOSYS
reserves the right to block and refuse to accept such adverse
traffic at any time, without prior notice or liability.
12. NOTICES Any notice or other communication required
or permitted to be given hereunder shall be in writing and shall
be given by: (i) prepaid first class mail, (ii) facsimile or
other means of electronic communication or (iii) delivery as
hereafter provided. Any such notice or other communication, if
mailed by prepaid first-class mail at any time other than during
a general discontinuance of postal service due to strike,
lockout or otherwise shall be deemed to have been received on
the fourth business day after the post-marked date thereof; or
if sent by facsimile or other means of electronic communication,
shall be deemed to have been received on the date of
transmission, provided that a hard copy is immediately sent by
prepaid first class mail as aforesaid; or if delivered by hand,
shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the
individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the
addressee. Notice of change of address shall also be governed by
this section. In the event of a general discontinuance of
postal service due to strike, lock-out, or otherwise, notices or
other communications shall be delivered by hand or sent by
facsimile or other means of electronic communication and shall
be deemed to have been received in accordance with this section.
Notices and other communications shall be addressed as follows:
a) In the case of INNOSYS
INNOSYS COMPUTING, INC.
000 Xxxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000 U. S. A.
Office: ( )
Facsimile: ( )
b) In the case of Company:
______________________________
Office: ( )
Facsimile: ( )
Attn:
c) Billing Address of Company: (If different)
13. 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.
14. PARTIAL INVALIDITY: GOVERNMENT ACTION
(A) 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 term or
provision shall be deemed to be deleted.
(B) Government Action Upon thirty (30) days prior
notice, either party shall have the right, without liability to
the other, to cancel an affected portion of the Service if any
material rate or term contained herein and relevant to the
affected Service is substantially changed or found to be
unlawful or the relationship between the parties hereunder is
found to be unlawful - by order of the highest court of
competent jurisdiction to which the matter is appealed, the
Federal Communications Commission, or other local, state or
federal government authority of competent jurisdiction.
15. USE OF SERVICE Upon INNOSYS acceptance of a
Service Schedule hereunder, INNOSYS will provide the Service
specified therein to Company 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 communications service offering
to third parties.
16. CHOICE OF LAW; FORUM AND ARBITRATION
(A) Law This Agreement shall be construed under the
laws of the State of Illinois without regard to choice of law
principles.
(B) Forum Any arbitration, civil action or other legal
proceeding arising out of or relating to this Agreement or any
dealings between Company, on the one hand, and INNOSYS and/or
INNOSYS officers, directors, employees, or agents on the other
hand, whether brought before or after any termination of this
Agreement, shall be brought and heard only in Illinois and the
parties hereto expressly waive any rights under any law or rule
to cause any such proceeding to be brought or heard in any other
location. Company consents to jurisdiction in any state or
federal court located in Illinois in any other legal proceeding
arising out of or relating to this Agreement.
(C) Arbitration Any claim or controversy arising out
of or relating to this Agreement or any dealings between
Company, on one hand and INNOSYS and/or INNOSYS's officers,
directors, employees or agents, on the other hand, shall be
resolved by final and binding arbitration in accordance with the
rules of the American Arbitration Association (AAA). Any
arbitration will be conducted in Chicago. The arbitrator may
not limit, expand or otherwise modify the terms of this
Agreement and shall not have authority to award punitive or
other non-compensatory damages to either party. In order to
provide an expeditious resolution of any dispute, the parties
agree that: (i) if the parties have not agreed on an arbitrator
within ten (10) days after the date of commencement of the
arbitration, the AAA shall designate a single arbitrator and
that designation shall be final and binding; and (ii) absent
extraordinary circumstances, the arbitration hearing shall begin
within ninety (90) days from the date of commencement of
arbitration, and shall continue each business day thereafter
until completed. The award in such arbitration proceeding may be
entered in any Court specified in Paragraph 16(B) of this
Agreement.
17. PROPRIETARY INFORMATION
(A) Confidential Information The parties understand
and agree that the terms and conditions of this Agreement, all
documents referenced (including invoices to Company for Service
provided hereunder) herein, communications between the parties
regarding this Agreement or the Service to be provided hereunder
(including price quotes to Company for any Service proposed to
he provided or actually provided hereunder) and all information
regarding the customers of Company, as well as such information
relevant to any other agreement between the parties
(collectively "Confidential Information"), are confidential as
between Company and INNOSYS.
(B) 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
agent's of a party including their respective brokers, lenders,
insurance carries 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.
(C) Press Releases The parties 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 or
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 Section 17 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.
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
Company shall not assign or transfer its rights or obligations
under this Agreement without the prior written consent of
INNOSYS, 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,
provisions for arbitration, forum selection, indemnification and
the making of any and all payments due hereunder.
(B) 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.
(C) Rules of Construction No rule of construction
requiring interpretation against the draftsman hereof shall
apply in the interpretation of this Agreement.
(D) Legal Fees In any arbitration, civil action or
other legal proceeding arising out of or relating to this
Agreement, the prevailing party shall be awarded its costs and
reasonable attorneys' fees.
20. ENTIRE AGREEMENT This Agreement consists of: (i)
all the terms and conditions contained herein; in executed
Service Schedules that are identified herewith; (ii) and all
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 Company and INNOSYS.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first written above.
COMPANY: TGI Technologies, LTD Innosys Communications, Inc.
Address: 000 Xxxx 0xx Xxxxxx 907 North Elm Street
Vancouver, BC CANADA V57 1C7 Xxxxxxxx, XX. 00000, XXX
By: /s/Xxxxxxxx Xxx By: /s/Younswhan "Nick" Xxx
Title: Chairman Title: President
SCHEDULE A: SERVICE SCHEDULE
INNOSYS COMMUNICATIONS, INC. ("INNOSYS") agrees to provide and
Company agrees to accept the Service described below, subject to
the terms and conditions set forth herein and contained in that
certain Telecommunications Services Agreement between Company
and INNOSYS dated December 18, 1998. Neither Company or INNOSYS
shall be obligated with respect to the Service described below,
until this Service Schedule is subscribed to by an authorized
representative of Company and INNOSYS.
1. INNOSYS agrees to provide the INNOSYS Termination
Service ("INNOSYS Service") described In Exhibit A hereto to the
locations described in Exhibit A for the charges set forth in
Exhibit A subject to a Minimum Service Term of Twelve(12) months.
2. Start of Service for INNOSYS Service will occur
concurrently with the activation of each Service Interconnection
relevant to the Service in question. The Minimum Monthly Usage
calculation for INNOSYS Service will commence as of Thirty
(30) days following Start of Service.
3. As of the Requested Service Date, Circuits
comprising Service Interconnections will be provided between the
INNOSYS POP and the Company Location at the locations set forth
below:
INNOSYS POP Location: LA
Company Location:
Requested Service Date:
4. Service Interconnection - Circuit Type/Quantity: 1 T1
5. Monthly Recurring Charge Per Circuit/Interconnection:
6. Minimum Monthly Usage Per Circuit/Interconnection
(Minutes*): 100,000
7. Minimum Usage Charge Per Minute: 1
* For purposes of meeting the Minimum Monthly Usage,
all INNOSYS provided switched Service products utilized by
Company at a INNOSYS POP will be aggregated.
8. U.S. Domestic (including Alaska, Hawaii, U.S.V.I.,
and Puerto Rico) calls will be billed in six (6) second
increments utilizing Hardware Answer Supervision where
available. All international calls, with the exception of
Mexico, will be billed in six (6) second increments and subject
to a thirty (30) second minimum charge. Mexico calls will be
billed in one (1) minute increments.
9. For domestic termination service, the rate charged
varies depending upon whether the call terminates in a tandem
owned and operated by a Regional Xxxx Operating Company ("RBOC
Rate"), or a local exchange company which is not an RBOC
operating company ("Independent Telco").
10. INNOSYS reserves the right to eliminate Services
and/or modify charges for Services, upon not less than thirty
(30) days prior notice to Company for domestic Services and upon
not less than fifteen (15) days prior notice to Company for
international Services, which notice will state the effective
date for the elimination or modification.
IN WITNESS WHEREOF, the parties have executed this
Service Schedule on 18th day of December, 1998.
COMPANY: TGI Technologies, Ltd. Innosys Communications, Inc.
Address: 000 Xxxx 0xx Xxxxxx 000 Xxxxx Xxx Xxxxxx
Xxxxxxxxx, XX XXXXXX X0X 0X0 Xxxxxxxx, XX. 00000, XXX
By:______________________________ By: ________________________
(Signature) (Signature)
Name: ___________________________ Name: ______________________
Title: __________________________ Title: _______________________
EXHIBIT A
1.Billing Frequency: Weekly (30 seconds, 6 seconds thereafter)
2.Origination of Services: LA
3.Costs of Interconnection to Innosys Communications, Inc. to be
paid by Company.
4.Rates are specified in the next five pages.
