EXHIBIT 10.21
WORLDCOM
TELECOMMUNICATIONS SERVICE AGREEMENT
This Telecommunications Service Agreement (this "Agreement")
is made as of the 1st day of December, 1994 (the "Effective
Date"), by and between WORLDCOM, INC. d/b/a LDDS/WorldCom, a
Georgia corporation with its principal place of business located
at 000 Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxx 00000-0000
("WorldCom"), and COMDATA NETWORK, INC., a Maryland corporation,
and a wholly owned subsidiary of Comdata Holdings Corporation, a
Delaware corporation, with its principal place of business
located at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("CNI")
and COMDATA TELECOMMUNICATIONS SERVICES, INC., a Delaware
corporation, and a wholly owned subsidiary of CNI, with its
principal place of business located at 0000 Xxxxxxxx Xxx,
Xxxxxxxxx, Xxxxxxxxx 00000 ("CTS"). For purposes of this
Agreement, CNI and CTS are collectively referred to as
"Customer". In consideration of the mutual promises and
covenants set forth in this Agreement the parties agree as
follows:
1. Services:
1.1 WorldCom will provide Customer certain
telecommunications services as further described on Exhibit
"A" attached hereto (the "Services") to Customer pursuant to
LDDS Communications, Inc. (now known as WorldCom, Inc.) FCC
Tariff Xx. 0, XXX Xxxxxx Xx. 0 and applicable state tariffs,
all as may be amended from time to time (the "Tariffs").
All of the terms and conditions of the Tariffs now or
hereafter in effect are incorporated in this Agreement. In
the event that any provision set forth in this Agreement
conflicts with the terms and conditions of any of the
Tariffs, WorldCom agrees to tariff the provision in the
applicable Tariff. If WorldCom fails to file any tariff as
described herein which is required to be filed, Customer
shall have the right to terminate this Agreement without any
further liability.
1.1.1 Any additional Services not covered in this Agreement
(e.g., frame relay, Canadian origination) that WorldCom
subsequently provides for resale will be made available to
Customer upon terms and conditions generally available to
WorldCom's other resale customers.
1.2 This Agreement will not be construed to impose
obligations upon WorldCom to Customer's customers (each, an
"End User") or to create rights enforceable by End Users
against WorldCom.
1.3 WorldCom will provide Customer certain billing
services, including without limitation the preparation and
mailing of invoices to Customer's End Users (the "Billing
Services"). The Billing Services shall be the reasonably
substantial equivalent billing services that WorldCom
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currently uses as of the Effective Date of this Agreement to
provide billing to WorldCom's customers including without
limitation, any enhancements to such Billing Services which
are generally available as determined by WorldCom ("Billing
System"). Customer's access to, and use of the Billing
Services shall be provided by WorldCom at no charge
provided that the rates contained in Schedule A, attached
hereto, remain unchanged. In the event Customer requests
modifications to the Billing Services outside the scope of
the Billing Services being offered by WorldCom, Customer
agrees to pay WorldCom the costs for such modifications.
1.4 WorldCom appoints Customer a WorldCom agent to sell
enhanced features at WorldCom tariffed rates as shown in
Schedule B attached hereto (the "Enhanced Features").
Customer will receive a fifty percent (50%) commission (the
"Commission") on all sales of Enhanced Features. WorldCom
may waive Enhanced Feature charges for Customer's End Users
from time to time. The Commission due to Customer will be
applied as an offset to Customer's invoice for rates charged
to Customer for Customer's use of the services listed in
Schedule B.
1.5 The WorldCom Standard Implementation Schedule for the
Services ("Implementation Schedule"), which may be amended
from time to time, will be as set forth in Schedule C,
attached hereto. Said Implementation Schedule is non-
binding and is only provided for informational purposes.
2. Term; Termination:
2.1 The term of this Agreement will commence as of December
1, 1994, and end on January 22, 2003 (the "Term"). Unless
either party gives written notice to the other party at
least one hundred and twenty (120) days prior to the end of
the Term, the Term will continue on a month to month basis
until this Agreement is terminated by either party on at
least one hundred and twenty (120) days prior written notice
to the other party. Except as provided in Subsections 8.2
or 8.3 below, in the event Customer terminates this
Agreement prior to the end of the Term, Customer agrees to
pay WorldCom twelve and one-half percent (12 1/2%) of the
average of the last twelve (12) months measured usage
charges times the number of full months remaining in the
Term (the "Contract Deficiency Charge").
2.2 In the event that (i) there is a change in control of
Customer such that Customer is acquired or purchased,
whether by stock purchase, asset purchase, merger or
otherwise, and such acquisition or purchase is approved by
the appropriate regulatory authorities ("Customer
Acquisition/Purchase") and (ii) pursuant to such Customer
Acquisition/Purchase, Customer obtains access to an
alternate rate plan which results in an overall savings over
current charges paid to WorldCom pursuant to this Agreement
WorldCom may make such adjustments to the rates contained
herein to provide an equivalent overall savings. In the
event that WorldCom dos not make such adjustment, then
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Customer may, within sixty (60) days after Customer
Acquisition/Purchase, at its election, terminate this
Agreement upon ten (10) days prior written notice to
WorldCom without incurring further liability to WorldCom.
3. Transition of Services Upon Termination or Expiration.
3.1 Upon termination or expiration of this Agreement for
any reason, WorldCom shall expend reasonable efforts to
avoid any substantial disruption of Customer's
telecommunications services and shall take such actions at
no additional cost to WorldCom as may be reasonably
necessary to facilitate the uninterrupted transfer of the
Services provided for herein to another telecommunications
provider.
4. Rates; Minimum Yearly Usage Commitment.
4.1 Commencing with the Effective Date and continuing
through the end of the Term, rates for the Services will be
as set forth in Schedule A, attached hereto. Services
provided by WorldCom which are not listed in Schedule A
shall be at the rates and terms (i) set forth in WorldCom's
applicable Tariffs, or (ii) generally available to
WorldCom's other similarly situated customers (collectively
referred to as "Non-Contract Services").
4.2 Commencing with the Effective Date, and continuing
through the end of the Term of this Agreement, Customer will
pay to WorldCom the greater of (i) the amount actually
incurred by Customer for Services and Non-Contract Services
pursuant to paragraph 4.1 of this Agreement or (ii) ten
million dollars ($10,000,000) ("Minimum Annual
Commitment"). In the event there is a substantial change
in the regulatory environment of Customer's business,
including without limitation the banking, gaming and
telecommunications environments, which substantially
prohibits Customer's performance under this Agreement,
WorldCom agrees to negotiate with Customer in good faith
concerning the reduction of the Minimum Annual Commitment as
described herein. Further, in the event there is a
substantial technological change in the telecommunications
industry and based on the purchase of a new product or
offering Customer's rates for Services hereunder would be
significantly reduced, WorldCom agrees to negotiate with
Customer concerning the purchase of such product or offering
and the reduction of the Minimum Annual Commitment described
herein, provided WorldCom continues to receive the same
percentage of Customer's traffic after such reduction as it
did prior to such technological change. Finally, in the
event CTS completely ceases providing telecommunications
services, WorldCom agrees to reduce the Minimum Annual
Commitment described herein by an amount equal to the
product obtained by multiplying (i) the previous three (3)
months' average usage charges for Services purchased by
Customer under this Agreement which are attributable to CTS
by (ii) twelve (12). CTS agrees to provide WorldCom
reasonable and sufficient documentation to substantiate the
Services attributable to CTS hereunder.
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4.3 The rates set forth herein shall not be modified during
the Term of this Agreement. Notwithstanding the immediately
above sentence, WorldCom may, upon at least ninety (90) days
prior written notice to Customer, increase any rate set
forth in this Agreement so as to offset an increase to
WorldCom in the costs of providing the Services either
directly or indirectly that is caused solely by changes in
the rules, regulations or operating procedures of any
governmental or regulatory authority.
4.4 During the Term Customer (which for purposes of this
Subsection 4.4 shall include all Comdata affiliates existing
as of October 15, 1995, including without limitation, CNI,
CTS and Comdata Holdings Corporation) agrees to purchase
from LDDS at least eighty percent (80%) of Customer's
internal corporate traffic as well as Customer's resale
traffic, excluding ETS (an AT&T aggregator currently
providing services to Customer) traffic existing as of
December 1, 1994; provided, however, Customer's obligation
under this paragraph 4.4 shall not exceed twenty million
dollars ($20,000,000) in any twelve (12) month consecutive
period, nor be less than the Minimum Annual Commitment
contained in paragraph 4.2.
4.5 Beginning as of December 1, 1994 and continuing through
the Term of this Agreement, Customer will pay to WorldCom
the following monthly recurring rates for all existing and
new Customer premises equipment:
Dialers: $20.00 per month
Channel Banks $500 installation/$400 per month
One Year Minimum on Channel Banks.
The above charges will be reduced after three (3) years
of being in service to the cost of maintenance charges
only.
4.6 During the Term, WorldCom agrees to waive all WorldCom
installation charges (i.e., excluding any third party
installation charges) for Services ordered by Customer
hereunder provided such Services are used solely by Customer
or its affiliates for internal use (i.e., not for resale).
5. Billing and Payment of Charges:
5.1 Customer will pay all charges for the Services provided
by WorldCom within forty-five (45) days of the date of the
invoice (the "Due Date"). In the event that Customer
fails to make any required payment in full on or before the
fifteenth (15th) day following the Due Date, Customer shall
pay a late fee in the amount of the lesser of one and one-
half percent (1 1/2%) of the unpaid principal balance per
month or the maximum lawful rate allowable under the
applicable state tariff. If Customer disagrees with an
invoice for any of the Services, Customer shall promptly pay
the amount that it believes to be correct and, at the same
time, notify WorldCom in writing of the basis for and amount
in dispute. Failure to notify WorldCom of a disputed charge
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will result in all charges being deemed correct. WorldCom
and Customer shall promptly address any disputed claim and
use their best efforts to resolve the disputed amount. In
the event Customer fails to make any non-disputed payment in
accordance with the terms of this Section 5.2, WorldCom may
provide Customer with written notice of interruption of
service. If by (i) the third (3rd) day following receipt of
written notice of interruption of service, or (ii) the
thirty-sixth (36th) day after the Due Date (which ever shall
last occur), Customer fails to make payment of such non-
disputed amount in full, WorldCom may interrupt service to
Customer until such time as the non-disputed amount is
received by WorldCom. Such interruption, if any, by
WorldCom pursuant to this Section 5.1 shall in no event be
deemed a breach of WorldCom' obligations under this
Agreement. Failure of WorldCom to exercise its right to
give notice of interruption and/or to interrupt service
shall in no event be deemed a waiver of WorldCom' rights to
payment hereunder.
5.2 It is the Customer's non-delegable duty to pay any and
all taxes or duties of any kind or nature whatsoever
relative to or in any way resulting from the performance of
this Agreement. Notwithstanding the above, as an additional
service to the Customer, WorldCom agrees to do the
following:
5.2.1 make advance payments of Customer's taxes billed
through the WorldCom-provided standard IX Plus billing
environment unless Customer provides appropriate
documentation to WorldCom which evidences an exemption
therefor. Customer agrees to reimburse WorldCom for all
such tax or duty payments made by WorldCom within ten (10)
days of Customer's receipt of each WorldCom invoice
detailing such advanced payment, together with a surcharge
amounting to one-half of one percent (1/2%) of the total of
each invoice;
5.2.2 prepare xxxxxxxx to Customer's End Users for
telecommunications services provided hereunder in accordance
with rates provided by Customer which shall include taxes
calculated in accordance with the relevant tax statutes
applicable to each End User; remit said tax payments to the
appropriate taxing authorities; and provide Customer with
accurate documentation related thereto.
5.2.3 Nothing herein shall be construed to imply that
WorldCom agrees to assume liability for any act of
commission or omission with regard to Customer' obligations
or duties to governmental authorities or End Users.
Customer agrees to indemnify and hold WorldCom harmless with
respect to any claim, levy, charge or liability whatsoever
in connection with WorldCom's performance of the above-
stated service.
5.4 Customer's obligation to pay all undisputed charges
billed by WorldCom is absolute and unconditional under any
and all circumstances.
5.5 Customer will provide WorldCom with all necessary tax
exemption certificates in a form acceptable to the
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applicable taxing authority or pay all necessary taxes at
such time as such taxes become due.
6. Service Interruptions:
6.1 The Services will meet or exceed quality of service
standards (including, but not limited to, standards for call
set-up time, unintended disconnects, trunk capacity and
audio quality) in the long distance telephone industry in
the United States of America. If Customer, in its good
faith judgment, determines that the Service does not
materially meet such standards and that WorldCom is solely
responsible for such failure, Customer may terminate the
affected Service upon at least thirty (30) days prior
written notice to WorldCom provided that such failure in not
cured by WorldCom within thirty (30) days of the date of
such notice. In such case, Customer's Minimum Annual
Commitment shall be reduced for the remainder of the Term by
an amount equal to the product obtained by multiplying (i)
the previous three (3) months' average usage charges for
such terminated Service by (ii) twelve (12).
6.2 Notwithstanding paragraph 6.1 above, Customer may
terminate this Agreement upon fifteen (15) days prior
written notice, if (i) substantially the same service
problems with respect to the telecommunications services
provided hereunder recur during any consecutive sixty (60)
day period, notwithstanding the thirty (30) day cure
provision set forth in Section 6.1 hereof, or (ii) upon
verified twelve (12) hour prior notification to the WorldCom
Trouble Reporting Center, if Customer is required to utilize
the services of an alternate telecommunications provider for
a period of twenty-four (24) hours or longer due to service
problems with respect to the telecommunications services
provided hereunder by WorldCom.
6.3 WORLDCOM SHALL NOT BE LIABLE FOR DAMAGES OR
INTERRUPTIONS OF SERVICE CAUSED BY OR RESULTING FROM ANY ACT
OF GOD OR OTHER UNCONTROLLABLE FORCE. UNCONTROLLABLE FORCE
IS ANY CAUSE BEYOND THE CONTROL OF WorldCom, INCLUDING BUT
NOT LIMITED TO, FLOOD, EARTHQUAKE, STORM, LIGHTNING, FIRE,
EPIDEMIC, WAR, RIOT, CIVIL DISTURBANCE, SABOTAGE, OR
RESTRAINT, INJUNCTION OR RESTRICTION BY ANY FEDERAL OR STATE
COURT, AGENCY, ADMINISTRATIVE BODY, OR PUBLIC AUTHORITY, OR
A LAWFUL ORDER ENTERED IN ANY LAWSUIT OR REGULATORY
PROCEEDING WHICH EFFECTS A RESTRAINT OF WORLDCOM'S
PERFORMANCE UNDER THIS AGREEMENT. WORLDCOM SHALL NOT BE
LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL,
ACTUAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY
KIND OR NATURE WHATSOEVER ARISING OUT OF ANY DEFECTS OR ANY
OTHER CAUSE. THIS WARRANTY AND THESE REMEDIES ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6.4 Notwithstanding Section 6.1, Customer's damages for any
service interruption or delay by WorldCom not caused by any
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Act of God or uncontrollable force as describe in Section
6.3 above shall not exceed the average of two (2) days
billing under this Agreement prior to the event of
interruption or the actual amount of the damages, whichever
is less. However, where an applicable state tariff calls
for a different calculation of damages, the provisions of
the state tariff will govern.
6.5 Except as provided otherwise in this Agreement,
WorldCom makes no representations or warranties as to its
abilities to process service activation submissions.
WorldCom will provide Customer's customers an equivalent
standard of service as WorldCom provides its customers.
7. Letters of Agency:
7.1 Customer will obtain a valid and acceptable letter of
agency ("LOA") from each End User whose ANI Customer submits
to WorldCom.
7.2 Customer is entirely responsible for the validity of
each LOA that it submits as well as for the correctness of
the information that is contained in such LOA. Customer
understands that any inaccuracies in such information may
result in lengthy delays in the activation of the subject
ANI.
7.3 Customer will notify each End User that WorldCom is the
primary interexchange carrier that is providing Services to
Customer.
8. Rights and Obligations Upon Either Party's Breach:
8.1 In the event Customer is in material breach of this
Agreement, including without limitation (i) Customer's
failure to pay undisputed charges when due as provided in
Section 5 above, and (ii) Customer's failure on three (3)
separate occasions to act as WorldCom requests after making
a material misrepresentation to a third party or End User
concerning the Services purchased by Customer hereunder, and
fails to cure such breach within ten (10) days after receipt
of notice of such breach, WorldCom may:
8.1.1 terminate this Agreement effective immediately in
which case the Contract Deficiency Charge will be
immediately due and payable; and
8.1.2 upon termination of the Agreement as provided in
(i), contact each End User directly for the purpose of
notifying such End User that WorldCom will no longer provide
long distance telephone services to Customer, that WorldCom
will provide long distance telephone service to it pursuant
to the Tariffs and that WorldCom will continue to provide
such service unless such End User notifies its LEC to change
its long distance telephone service to another primary
interexchange carrier.
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8.2 In the event WorldCom is in material breach of this
Agreement, and fails to cure such breach within thirty (30)
days after receipt of notice of such breach, Customer may
terminate this Agreement effective immediately without any
further liability.
8.3 This Agreement shall automatically terminate effective
immediately if:
8.3.1 Either party becomes insolvent, files a petition
in bankruptcy or makes an assignment for the benefit of
creditors;
8.3.2 Either party applies for or consents to the
appointment of a trustee or receiver, or a trustee or
receiver is appointed for Customer; or
8.3.3 Bankruptcy, insolvency or liquidation proceedings are
commenced against either party and such proceedings are not
discharged or dismissed within thirty (30) days after such
commencement.
9. Confidential Information:
9.1 Each party understands that in performing this
Agreement it may have access to private or confidential
information relating to the other party or such other
party's Customers End Users ("Confidential Information").
Each party agrees that the Confidential Information will:
9.1.1 remain the exclusive property of the disclosing
party;
9.1.2 not to be copied, published or disclosed to
others;
9.1.3 be used solely in the performance of this
Agreement; and
9.1.4 be returned to the disclosing party upon
termination of this Agreement.
10. Regulatory Requirements:
10.1 Customer represents and warrants that it has obtained,
or will undertake promptly and diligently to obtain, any and
all Certificates of Public Necessity, authority or other
consents ("Authority") which are required by the states
and jurisdictions within which Customer currently provides
or intends to provide long distance service to End Users or
others. If requested by WorldCom, Customer will provide
copies of said Authority before submitting any ANIs to
WorldCom. When Customer is in the process of obtaining said
Authority, Customer shall provide copies of the Authority to
WorldCom as soon as it becomes available. In the event
that Customer is permanently or temporarily denied Authority
in any particular state or jurisdiction and/or is prohibited
from providing long distance or other telecommunications
services within that state or jurisdiction, then Customer
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shall within 24 hours notify WorldCom of said denial via
facsimile and via U.S. Mail. Customer agrees to indemnify
and hold WorldCom harmless with respect to any and all
damages, demands. suits, causes of action, liability,
losses, assessments, fees, levies, charges, or any other
claims whatsoever which are asserted against WorldCom with
regard to the failure of Customer to obtain the
aforementioned Authority.
11. Notices:
11.1 Any notice required by this Agreement will be effective
and deemed delivered (i) three (3) business days after
posting with the United States Postal Service when mailed by
certified mail, return receipt requested, properly addressed
and with the correct postage, (ii) one (1) business day
after pick-up by the courier service when sent by overnight
courier, properly addressed and prepaid or (iii) one (1)
business day after the date of the sender's electronic
confirmation of receipt when sent by facsimile transmission.
11.2 Notices will be sent to the addresses or FAX numbers
set forth in this Agreement, unless either party notifies
the other in writing of an address or FAX number change.
12. General:
12.1 Neither party may assign this Agreement or any of its
obligations without the prior written consent of the other
party hereto. Notwithstanding anything to the contrary
contained herein, Customer may assign this Agreement or any
of its obligations to an affiliate of Customer provided
Customer remains liable for the financial obligations
contained herein, including without limitation, the Minimum
Annual Commitment and the Contract Deficiency Charge.
12.2 Customer may not subcontract with other persons or
entities to undertake any of Customer's obligations that are
set forth in this Agreement provided however, that this
Section 12.2 shall not prohibit Customer from contracting
with third parties with respect to reselling and marketing
activities for Customer's telecommunications services.
12.3 This Agreement is a Georgia agreement and is governed
by and interpreted according to the laws of the state of
Georgia applicable to Georgia agreements, except to the
extent that the Communications Act of 1934, as amended and
is interpreted and applied by the Federal Communications
Commission, applies.
12.4 Neither party will be liable for failure to perform its
obligations hereunder due to causes beyond its control,
including accidental damage to WorldCom's network, acts of
God, laws or requirements of any government or national
emergencies.
12.5 If any of the provisions of this Agreement are
determined to be invalid, the remaining provisions will
still be valid.
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12.6 Headings are used in this Agreement for convenience
only and are not to be used to interpret this Agreement or
any of its provisions.
12.7 This Agreement will be deemed effective only upon full
execution of this Agreement by each of the parties. This
Agreement may be modified only pursuant to a writing that is
signed by each of the parties.
12.8 This Agreement is subject to all applicable existing
and future laws, rules and regulations of any governmental
authority.
12.9 Each party represents and warrants that it has the full
legal and regulatory authority to enter into this Agreement
and to consummate the transactions contemplated by this
Agreement, and that this Agreement is not in conflict with
any other agreement to which such party is bound.
12.10 In any action arising out of or relating to this
Agreement, the prevailing party will be entitled to recover
its reasonable attorneys' fees and other costs in addition
to any other relief that may be awarded.
12.11 This Agreement contains the full understanding of
the parties and supersedes any prior agreements including
the August 30, 1991 agreement, the October 18, 1991 addendum
to the August 30, 1991 agreement, and the July 21, 1993
notice, between the parties.
12.12 Each party hereto shall have the right to contract
with a third party to inspect and audit, during regular
business hours and upon written request, any relevant books
and records of the other party hereto for the purpose of
verifying payments made or to be made hereunder or
confirming the performance of such party. The inspection
and audit rights granted pursuant to this Section shall
remain in full force and effect during the Term of this
Agreement and for a period of three (3) months following the
date of expiration or termination of this Agreement., upon
written request, during regular business hours.
12.13 None of the provisions of this Agreement is
intended to create nor shall be deemed or construed to
create any relationship between the parties hereto other
than that of independent entities contracting with each
other hereunder solely for the purpose of effecting the
provisions of this Agreement. Neither of the parties
hereto, nor any of their respective employees, shall be
construed to be the agent, employer, or representative of
the other. WorldCom and Customer agree that WorldCom is
only providing the services under this Agreement as an
independent contractor.
IN WITNESS WHEREOF, the parties have signed this Agreement
and the individuals signing below represent that they have the
authority to sign for and on behalf of the respective parties.
COMDATA NETWORK, INC. WORLDCOM, INC.
BY: /s/Xxxxxx X. Xxxxxxxx BY: /s/Xxxxx Xxx
NAME: Xxxxxx X. Xxxxxxxx NAME: Xxxxx Xxx
TITLE: President and Cief TITLE: Senior Vice President
Operating Officer
DATE: October 18, 1995 DATE: October 18, 1995
FAX: 000-000-0000 FAX: 000-000-0000
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COMDATA TELECOMMUNICATIONS
SERVICES, INC.
BY: /s/Xxxxxx X. Xxxxxxxx
NAME: Xxxxxx X. Xxxxxxxx
TITLE: President and Cief
Operating Officer
DATE: October 18, 1995
FAX: 000-000-0000
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