Exhibit 10.32
CONFIDENTIAL INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED AND IS BEING FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ANY SUCH OMISSIONS IN
THIS DOCUMENT ARE INDICATED BY THE REFERENCE
"[CONFIDENTIAL INFORMATION OMITTED]".
WILMAX UNIVERSAL-TM- TSA#CTS-970801
TELECOMMUNICATIONS SERVICES AGREEMENT
This TELECOMMUNICATIONS SERVICES AGREEMENT (hereinafter referred to
as the "Agreement" or the "TSAI) is entered into as of the 1st day of
September 1997 , by and between WORLDCOM NETWORK SERVICES, INC. d/b/a WilTel,
a Delaware corporation, with its principal office at Xxx Xxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxxx, 00000 ("WilTel") and COMDATA NETWORK, INC., a Maryland
corporation, with its principal office at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, XX
37027("CNI") and COMDATA TELECOMMUNICATIONS SERVICES, INC., a Delaware
corporation and a wholly owned subsidiary of CNI, with its principal office
at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, XX 00000 ("CTSI"). CNI and CTSI are
hereinafter collectively referred to as Customer".
WITNESSETH:
WilTel agrees to provide and Customer agrees to accept switched
telecommunications services ("Switched Services") and other associated
services (collectively the "Services"), (i) as described in the Sevice
Schedules identified herewith, (ii) subject to the terms and conditions
contained in this Agreement, including without limitation those terms and
conditions contained in the Program Enrollment Terms ("PET") which are
attached hereto and incorporated herein by reference, and (iii) in conformity
with each Service Request (described below) which is accepted hereunder.
In the event of a conflict between the terms of this Agreement, the
PET, the Service Schedule and the Service Request(s), the following order of
precedence will prevail: (1) PET, (2) Service Schedule, (3) the Agreement,
and (4) Service Request(s).
NOW, THEREFORE, in consideration of the above premises and other
good aria valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Applicable Terms.
(A) Service Term. This Agreement shall commence as of the Effective
Date set forth in the PET and shall be subject to the "Service Term"
as described therein (which Service Term shall include any automatic
extensions). Customer shall be liable for all charges associated with
actual usage of the Service in question during the Service Term and
any extension thereof.
(B) PET. The PET, as subscribed to by the parties, shall set forth
the Discount Schedule applicable to Switched Service charges due under
this Agreement, Customer's Minimum Monthly Commitment, if
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any, and other information necessary to provide the Service under this
Agreement.
(C) Start of Service. WilTel's obligation to provide and customer's
obligation to accept and pay for non-usage sensitive charges for
Service shall be binding to the extent provided for in this Agreement
upon the submission of an acceptable Service Request to WilTel by
Customer. Customer's obligation to pay for usage sensitive charges for
Switched Services shall commence with respect to any Service as of the
earlier of (i) the "Requested Service Date" set forth in each Service
Request, or (ii) the date the Service in question is made available to
Customer and used ("Start of Service"). Start of Service for
particular Services shall be further described in the Service Schedule
relevant to the Switched Service in question.
(D) Service Schedules Services to be provided under this Agreement
shall be described in the WilTel Service Schedule which is subscribed
to by authorized representatives of WilTel and Customer (collectively
referred to as the "Service Schedules") . Each Service Schedule shall
become a part of this Agreement to the extent that it describes the
particular services therefor, specific terms and other information
necessary or appropriate for WilTel to provide such Service(s) to
Customer.
(E) Service Requests. Customer's requests to initiate or cancel
Services shall be described in an appropriate WilTel Service Request
("Service Requests"). Service Requests may consist of machine
readable tapes, facsimiles or other means approved by WilTel.
Further, Service Requests shall specify all reasonable information,
as determined by WilTel, necessary or appropriate for WilTel to
provide the Service(s) in question, which shall include without
limitation, the type, quantity and end point(s) (when necessary) of
circuits comprising a Service Interconnection as described in the
applicable Service Schedules, or automatic number identification
("ANI") information relevant to the Service(s), the Requested Service
Date, and charges, if any, relevant to the Services described in the
Service Request. After WilTel's receipt and verification of a valid
Service Request for SWITCHED Service (as defined in the Service
Schedule) requiring a change in the primary interexchange carrier
("PIC") , WilTel agrees to (i) submit the ANI(s) relevant to such
Service Requests to the following local exchange carriers ("LECs")
(with which WilTel currently has electronic interface capabilities)
within ten (10) days: Ameritech, Xxxx Atlantic, BellSouth, Nynex,
Pacific Xxxx, Southwestern Xxxx, US West, GTE and United, and
(ii) submit the ANI(s) relevant to such Service Requests to those LECs
with which WilTel does not have electronic interface capabilities
within a reasonable time.
2. Cancellation.
(A) Cancellation Charge. At any time after the Effective Date,
Customer may cancel this Agreement if Customer provides written
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notification thereof to WilTel not less than thirty (30) days prior to
the effective date of cancellation. In such case (or in the event
WilTel terminates this Agreement as provided in Section 8), Customer
shall pay to WilTel all charges for Service provided through the
effective date of such cancellation plus a cancellation charge (the
"Cancellation Charge") equal to one hundred percent (100%) of the
Minimum Monthly Commitment, if any, (as described in the PET) that
would have become due for the unexpired portion of the Term.
(B) Liquidated Damages. It is agreed that WilTel's damages in the
event Customer cancels Service shall be difficult or impossible to
ascertain. The provision for a cancellation charge in Subsection 2(A)
above is intended, therefore, to establish liquidated damages in the
event of a cancellation and is not intended as a penalty.
(C) Cancellation Without Charge Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel
this Agreement without incurring any cancellation charge if (i) WilTel
fails to provide a network as warranted in Section 9 below; (ii)
WilTel fails to deliver call detail records promptly based on the
frequency selected by Customer (i.e., monthly, weekly or daily); or
(iii) WilTel fails to submit ANI(s) relevant to such Service Requests
to the LECs within the time period described in Subsection 1(E) above.
Provided, however, Customer must give WilTel written notice of any
such default and an opportunity to cure such default within five (5)
days of the notice. In the event WilTel fails to cure any such
default within the five-day period on m ore than three (3) occasions
within any six (6) month period, Customer may cancel this Agreement
without incurring any cancellation charge.
3. Customer's End Users.
End User Customer will obtain and upon WilTel's request provide
WilTel (within two (2) business days of the date of the request) a
written Letter of Agency ("LOA") acceptable to WilTel (or with any
other means approved by the Federal Communications Commission
("FCC")], for each ANI indicating the consent of the end users of
Customer ("End Users") to be served by Customer and transferred (by
way of change of such End User's designated PIC) to the WilTel
network prior to order processing. Each LOA will provide, among
other things, that the End Users have consented to the transfer
being performed by Customer or Customer's designee. when
applicable, Customer will be responsible for notifying End Users,
in writing (or by any other means approved by the FCC) that (i) a
transfer charge will be reflected on their LEC xxxx for effecting a
change in their primary interexchange carrier, (ii) the entity name
under which their interstate, intrastate and/or operator services
will be billed (if different from Customer), and (iii) the
"primary" telephone number(s) to be used for maintenance and
questions concerning their long distance service and/or billing.
Customer agrees to send WilTel a copy of the documentation Customer
uses to satisfy the above requirements promptly upon request of
WilTel. WilTel may change the
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foregoing requirements for Customer's confirming orders and/or for
notifying End Users regarding the transfer charge at any time in
order to conform with applicable FCC and state regulations.
Provided, however, Customer will be solely responsible for ensuring
that the transfer of End Users to the WilTel network conforms with
applicable FCC and state regulations, including without limitation
the regulations established by the FCC with respect to verification
of orders for long distance service generated by telemarketing as
promulgated in 47 C.F.R., Part 64, Subpart K, Section 64.1100 or
any successor regulations).
(B) Transfer Charges/Disputed Transfers. Customer agrees that it
is responsible for (i) all charges incurred by WilTel to change the
PIC of End Users to the WilTel network, (ii) all charges incurred
by WilTel to change End Users back to their previous PIC arising
from disputed transfers to the WilTel network plus an
administrative charge equal to twenty percent (20%) of such
charges, and (iii) any other damages suffered by or awards against
WilTel resulting from disputed transfers.
(C) Excluded ANIs. WilTel has the right to reject any ANI
supplied by Customer for any of the following reasons: (i) WilTel
is not authorized to provide or does not provide long distance
services in the particular jurisdiction in which the ANI is
located, (ii) a particular ANI submitted by Customer is not in
proper form, (iii) Customer is not certified to provide long
distance services in the jurisdiction in which the ANI is located,
(iv) Customer is in default of this Agreement, (v) Customer fails
to cooperate with WilTel in implementing reasonable verification
processes determined by WilTel to be necessary or appropriate in
the conduct of business, or (vi) any other circumstance reasonably
determined by WilTel which could adversely affect WilTel's
performance under this Agreement or WilTel's general ability to
transfer its other customers or other end users to the WilTel
network, including without limitation, WilTel's ability to
electronically effect PIC changes with the LECS. In the event
WilTel rejects an ANI, WilTel will notify Customer as soon as
possible of its decision specifically describing the rejected ANI
and the reason(s) for rejecting that ANI, and will not incur any
further liability under this Agreement with regard to that ANI.
Further, any ANI requested by Customer for Switched Service may be
deactivated by WilTel if no Switched Service xxxxxxxx relevant
thereto are generated in any three (3) consecutive calendar
month/billing periods. WilTel will be under no obligation to
accept ANIs within the three (3) full calendar month period
preceding the scheduled expiration of the Term.
D. Records. Customer will maintain documents and records
("Records") supporting Customer's re-sale of Switched Service,
including, but not limited to, appropriate and valid LOAs from End
Users for a period of not less than 12 months or such other longer
period as may be required by applicable law, rule or regulation.
Customer shall indemnify WilTel for any costs, charges or expenses
incurred by WilTel arising from disputed PIC selections involving
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Switched Service to be provided to Customer for which customer
cannot produce an appropriate LOA relevant to the ANI and PIC
charge in question, or when WilTel is- not reasonably satisfied
that the validity of a disputed LOA has been resolved.
Customer Service. Customer will be solely responsible for billing
the End Users and providing the End Users with customer service.
Customer agrees to immediately notify WilTel in the event an End
User notifies Customer of problems associated with the Service,
including without limitation, excess noise, echo, or loss of
Service.
4. Customer's Responsibilities.
(A) Expedite Charges. In the event Customer requests expeditious
Service and/or changes to Service Orders and Wilel agrees to such
request, WilTel will pass through the charges assessed by any
supplying parties (e.g., local access providers) involved at the
same rate to Customer. WilTel may further condition its
performance of such request upon Customer's payment of additional
charges to WilTel.
(B) Fraudulent Calls. Customer shall indemnify and hold WilTel
harmless from all costs, expenses, claims or actions arising from
fraudulent calls of any nature which may comprise a portion of the
Service to the extent that the party claiming the call(s) in
question to be fraudulent is (or had been at the time of the call)
an End User of the Service through Customer or an end user of the
Service through Customer's distribution channels. Customer shall
not be excused from paying WilTel for Service provided to Customer
or any portion thereof on the basis that fraudulent calls comprised
a corresponding portion of the Service. In the event WilTel
discovers fraudulent calls being made (or reasonably believes
fraudulent calls are being made), nothing contained herein shall
prohibit WilTel from taking immediate action (without notice to
Customer) that is reasonably necessary to prevent such fraudulent
calls from taking place, including without limitation, denying
Service to particular ANIs or terminating service to or from
specific locations.
5. Charges and Payment Terms.
(A) Payment. WilTel xxxxxxxx for Service are made on a monthly basis
(or such other basis as may be mutually agreed to by the
parties) following Start of Service. Subject to Subsection
5(D) below, Service shall be billed at the rates as described
in the PET, and Service Requests, as the case may be.
Discounts, if any, applicable -to the rates for certain
Switched Services are also set forth in the PET. Customer
will pay each WilTel invoice in full for Switched Service
within thirty (30) days of the invoice date set forth on each
WilTel invoice to Customer ("Due Date"). -If payment is not
received by WilTel on or before the Due Date, Customer shall
also pay a late fee in the amount of the lesser of one and
one-half
Page 5 of 14
percent (1 1/2%) of the unpaid balance of the Service charges
per month or the maximum lawful rate under applicable state law.
(B) Definitions Time of day rate periods (including WilTel
Recognized National Holidays) will be as described in WilTel's
F.C.C. Tariff No. 5.
(C) Taxes. Customer acknowledges and understands that WilTel
computes all charges herein exclusive of any applicable federal,
state or local use, excise, gross receipts, sales and privilege
taxes, duties, fees or similar liabilities (other than general
income or property taxes) , whether charged to or against WilTel or
Customer because of the Service furnished to Customer ("Additional
Charges") . Customer shall pay such Additional Charges in addition
to all other charges provided for herein.
(D) Modification of Charges. WilTel reserves the right to
eliminate Service offerings, modify charges and/or add charges for
Service offerings (which charge modifications shall not exceed
then-current generally available WilTel charges for comparable
services), upon not less than sixty (60) days prior notice to
Customer, which notice will state the effective date for the charge
modification. In the event WilTel notifies Customer of the
elimination of a Service offering and/or an increase in the
charges, Customer may terminate this Agreement, without incurring a
cancellation charge only with respect to the Service offering
affected by the increase in charges. In order to cancel that
offering, Customer must notify WilTel, in writing, at least thirty
(30) days prior to the effective date of the increase in charges.
Further, in the event Customer cancels its subscription to a
Switched Service offering as described in this Subsection 5(D),
WilTel and Customer agree to negotiate in good faith concerning
Customer's Minimum Monthly Commitment, if any, described in the PET.
(E) Billing Disputes. Notwithstanding the foregoing, late fees
shall apply (but shall not be due and payable for a period of sixty
(60) days following the Due Date therefor) for amounts reasonably
disputed by Customer, provided Customer: (i) pays all undisputed
charges on or before the Due Date, (ii) presents a written
statement of any billing discrepancies to WilTel in reasonable
detail on or before the Due Date of the invoice in question, and
(iii) negotiates in good faith with WilTel for the purpose of
resolving such dispute within said sixty (60) day period. In the
event such dispute is resolved in favor of WilTel, Customer agrees
to pay WilTel the disputed amounts together with any applicable
late fees within ten (10) days of the resolution. In the event
such dispute is resolved in favor of Customer, customer will
receive a credit for the disputed charges in question and the
applicable late fees. In the event the dispute can not be resolved
within such sixty (60) day period (unless WilTel has agreed in
writing to extend such period) all disputed amounts together with
late fees shall become due and payable, and this provision shall
not be construed to prevent Customer from
Page 6 of 14
pursuing any available legal remedies. WilTel shall not be
obligated. to consider any Customer notice of billing discrepancies
which are received by WilTel more than sixty (60) days following
the Due Date of the invoice in question.
(F) Suspense of Service. In the event charges due pursuant to
WilTel's invoice are not paid in full by the Due Date, WilTel shall
have the right, after giving Customer ten (10) days prior notice,
to suspend all or any portion of the Service to Customer
("Suspension Notice") until such time (designated by WilTel in its
Suspension Notice) as Customer has paid in full all charges then
due to WilTel, including any late fees. Following such payment,
WilTel shall reinstitute Service to Customer only when Customer
provides WilTel with satisfactory assurance of Customer's ability
to pay for Service (i.e., a deposit, letter of credit or other
means acceptable to WilTel) and customer's advance payment of the
cost of reinstituting Service If Customer fails to make the
required payment by the date set forth in the Suspension Notice,
Customer will be deemed to have canceled the Service suspended
effective as of the date of suspension. Such cancellation shall not
relieve Customer for payment of applicable cancellation charges as
described in Section 2.
6. Credit. Customer's execution of this Agreement signifies
Customer's acceptance of WilTel's initial and continuing credit approval
procedures and policies. WilTel reserves the right to withhold initiation or
full implementation of Service under this Agreement pending WilTel's initial
satisfactory credit review and approval thereof which may be conditioned upon
terms specified by WilTel, including, but not limited to, security for
payments due hereunder in the form of a cash deposit or other means. WilTel
reserves the right to modify its requirements, if any, with respect to any
security or other assurance provided by Customer for payments due hereunder
in light of Customer's actual usage when compared to projected usage levels
upon which any security or assurance requirement was based.
7. Creditworthiness. If at any time there is a material adverse
change in Customer's creditworthiness, then in addition to any other remedies
available to WilTel, WilTel may elect, in its sole discretion, to exercise
one or more of the following remedies: (i) cause Start of Service for Service
described in a previously executed Service Request to be .withheld; (ii)
cease providing Service pursuant to a Suspension Notice; (iii) decline to
accept a Service Request or other requests from Customer to provide Service
which WilTel may otherwise be obligated to accept and/or (iv) condition its
provision of Service or acceptance of a Service Request on Customer's
assurance of payment which shall be a deposit or such other means to
establish reasonable assurance of payment. An adverse material change in
Customer's creditworthiness shall include, but not be limited to: (i)
Customer's default of its obligations to WilTel under this or any other
agreement with WilTel; (ii) failure of Customer to make full payment of
charges due hereunder on or before the Due Date on three (3) or more
occasions during any period of twelve (12) or fewer months or Customer's
failure to make such payment on or before the Due Date in any two (2)
consecutive months; (iii) acquisition of Customer (whether in whole or by
Page 7 of 14
majority or controlling interest) by an entity which is insolvent, which is
subject to bankruptcy or insolvency proceedings, which owes past due amounts
to WilTel or any entity affiliated with WilTel or which is a materially
greater credit risk than Customer; or, (iv) customer's being subject to or
having filed for bankruptcy or insolvency proceedings or the legal insolvency
of Customer.
8. Remedies for Breach. for In the event Customer is in breach of
this Agreement, including without limitation, failure to pay charges due
hereunder by the date stated in the Suspension Notice described in Subsection
5 (F) , WilTel shall have the right, after giving Customer five (5) days
prior notice, and in addition to foreclosing any security interest WilTel may
have, to (i) terminate this Agreement; (ii) withhold billing information from
Customer; and/or (iii) contact the End Users (for whom calls are originated
and terminated solely over facilities comprising the WilTel network) directly
and xxxx such End Users directly until such time as WilTel has been paid in
full for the amount owed by Customer. If Customer fails to make payment by
the date stated in the Suspension Notice and WilTel, after giving Customer
five (5) days prior notice, terminates this Agreement as provided in this
Section 8, such termination shall not relieve Customer for payment of
applicable cancellation charges as described in Section 2 above.
9. Warranty. WilTel will use reasonable efforts under the
circumstances to maintain its overall network quality. The quality of
Service provided hereunder shall be consistent with telecommunications common
carrier industry standards, government regulations and sound business
practices. WILTEL 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.
10. Liability; General Indemnity; Reimbursement.
(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 AND THE
PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) General Indemnity. In the event parties other than Customer
(e.g., Customer's End Users) shall have use of the Service through
Customer, then Customer agrees to forever indemnify and hold
WilTel, its affiliated companies and any third-party 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 those
parties may assert arising out of or relating to any defect in the
service.
C. Reimbursement. Customer agrees to reimburse WilTel for all
reasonable costs and expenses incurred by WilTel due to
WilTel's direct participation (either as a party or witness)
in any
Page 8 of 14
administrative, regulatory or criminal proceeding concerning
Customer if WilTel's involvement in said proceeding is based
solely on WilTel's provision of Services to Customer.
11. Force Majeure. If WilTel'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 such governments, or of any civil or military authority, or by national
emergency, insurrection, riot, war, strike, lockout or work stoppage or other
labor difficulties, or supplier failure, shortage, breach or delay, then
WilTel shall be excused from such performance on a day-to-day basis to the
extent of such restriction or interference. WilTel shall use reasonable
efforts under the circumstances to avoid or remove such causes or
nonperformance and shall proceed to perform with reasonable dispatch whenever
such causes are removed or cease.
12. State Certification. Customer warrants that in all jurisdictions
in which it provides long distance services that require certification, it
has obtained the necessary certification from the appropriate governmental
authority. Further, if required by WilTel, Customer agrees to provide proof
of such certification acceptable to WilTel. In the event Customer is
prohibited, either on a temporary or permanent basis, from conducting its
telecommunications operations in a given state, Customer shall immediately
notify WilTel by facsimile, and (ii) send written notice to WilTel within
twenty-four (24) hours of such prohibition.
13. Interstate/Intrastate Service. Except with respect to Switched
Service specifically designated as intrastate Service or international
service, the rates provided to Customer in a Service Schedule are applicable
only to Switched Service if such Service is used for carrying interstate
telecommunications (i.e., Service subject to FCC jurisdiction). WilTel 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 WilTel is
authorized to provide intrastate service (i.e., telecommunications
transmission services subject to the jurisdiction of state regulatory
authorities), WilTel will, at its option, provide intrastate Service pursuant
to applicable state laws, regulations and applicable tariff, if any, filed by
WilTel with state regulatory authorities as required by applicable law.
14. Authorized Use of WilTel Name. Without WilTel's prior written
consent, Customer shall not (i) refer to itself as an authorized
representative of WilTel whenever it refers to the Services in promotional,
advertising or other materials, or (ii) use WilTel's logos, trade marks,
service marks, or any variations thereof in any of its promotional,
advertising or other materials. Additionally, Customer shall provide to
WilTel for its prior review and written approval, all promotions,
Page 9 of 14
advertising or other materials or activity using or displaying WilTel' s name
or the. Services to be provided by WilTel. Customer agrees to change or
correct, at Customer's expense, any such material or activity which WilTel,
in its sole judgment, determines to be inaccurate, misleading or otherwise
objectionable. Customer is explicitly authorized to only use the following
statements in its sales literature: (i) "Customer utilizes the WilTel
network", (ii) "Customer utilizes WilTel's facilities", "WilTel provides only
the network facilities", and (iv) "WilTel is our network services provider".
15. Notices. Notices under this Agreement shall be in writing and
delivered to the person identified below at the offices of the parties as
they appear below or as otherwise provided for by proper notice hereunder.
Customer shall notify WilTel in writing if Customer's billing address is
different than the address shown below. The effective date for any notice
under this Agreement shall be the date of actual receipt of such notice by
the appropriate party, notwithstanding the date of mailing.
If to WilTel: WorldCom Network Services, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxx
Xxxxx, XX 00000
Attn: Carrier Sales Dept.
If to Customer: Comdata Network, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone No. (000) 000-0000
Fax No.: (000) 000-0000
Comdata Telecommunications Services, Inc.
0000 Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
16. 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. A consent to waiver of or excuse f or a breach or
default by either party, whether express or implied, shall not constitute a
consent to, waiver of, or excuse for any different or subsequent breach or
default.
17. Partial Invalidity; Government Action.
(A) Partial Invalidity. If any part of any provision of this
Agreement or any other agreement, document or writing given
pursuant to or in connection with this Agreement shall be invalid
or unenforceable under applicable law, rule or regulation, that
part shall be ineffective to the extent of such invalidity only,
without
Page 10 of 14
in any way affecting the remaining parts of that provision or the
remaining provisions of this Agreement. In such event, Customer
and WilTel will negotiate in good -faith with respect to any such
invalid or unenforceable part to the extent necessary to render
such part valid and enforceable.
(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 (to the detriment of the terminating party)
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 FCC, or
other local, state or federal government authority of competent
jurisdiction.
18. Exclusive Remedies. Except as otherwise specifically provided for
herein, the remedies set forth in this Agreement comprise the exclusive
remedies available to either party at law or in equity.
19. Use of Service. Upon WilTel's acceptance of a Service Request
hereunder, WilTel will provide the Service specified therein to Customer 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 any third
parties, and WilTel and Customer agree that this Agreement, to the extent it
is subject to FCC regulation, is an inter-carrier agreement which is not
subject to the filing requirements of Section 211(a) of the Communications
Act of 1934 (47 U.S.C. Section 211(a)) as implemented in 47 C.F.R. Section
43.51.
20. Choice of Law; Forum.
(A) Law. This Agreement shall be construed under the laws of the
State of Oklahoma without regard to choice of law principles.
(B) Forum. Any legal action or proceeding with respect to this
Agreement may be brought in the Courts of the State of Oklahoma in
and for the County of Tulsa or the United States of America for the
Northern District of Oklahoma. By execution of this Agreement,
both Customer and WilTel hereby submit to such jurisdiction, hereby
expressly waiving whatever rights may correspond to either of them
by reason of their present or future domicile. In furtherance of
the foregoing, Customer and WilTel hereby agree to service by U.S.
Mail at the notice addresses referenced in Section 15. Such service
shall be deemed effective upon the earlier of actual receipt or
seven (7) days following the date of posting.
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21. Proprietary Information
(A) Confidential Information. The parties understand and agree
that the terms and conditions of this Agreement, all documents
referenced (including invoices to Customer for Service provided
hereunder)- herein, communications between the parties regarding
this Agreement or the Service to be provided hereunder (including
price quotes to Customer for any Service proposed to be provided or
actually provided hereunder) , as well as such information relevant
to any other agreement between the parties (collectively,
"Confidential Information"), are confidential as between Customer
and WilTel.
(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 a party's agents including
their respective brokers, lenders, insurance carriers or bona fide
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 the 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.
(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 of Confidentiality. The provisions of this Section
21 will be effective as of the date of this Agreement and remain in
full force and effect for a period which will be the longer of (i)
one (1) year following the date of this Agreement, or (ii) one (1)
year from the termination of all Service hereunder.
22. Successors and Assigment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors or
assigns, provided, however, that Customer shall not assign or transfer its
rights or obligations under this Agreement without the prior written consent
of WilTel, which consent shall not be unreasonably withheld, and further
provided that any assignment or transfer without such consent shall be void.
Page 12 of 14
23 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 indemnification and
the making of any and all payments due hereunder.
(B) Headings. Descriptive headings in this Agreement are for
convenience only and shall not affect the construction of this
Agreement.
(C) Industry Terms. Words having well-known technical or trade
meanings shall be so construed, and all listings of items shall not
be taken to be exclusive, but shall include other items, whether.
similar or dissimilar to those listed, as the context reasonably
requires.
(D) Rule of Construction. No rule of construction requiring
interpretation against the drafting party hereof shall apply in the
interpretation of this Agreement.
24. Entire Agreement. This Agreement consists of (i) all the terms and
conditions contained herein, and, (ii) 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 Customer
and WilTel.
Page 13 of 14
IN WITNESS WHEREOF, the parties have executed this WilMAX
UNIVERSAL-TM-" Telecommunications Services Agreement on the date first
written above.
WORLDCOM NETWORK SERVICES, INC. COMDATA NETWORK, INC.
d/b/a WilTel
By: By: /s/Xxxx Xxxxxxxx
(Signature) (Signature)
Xxxx Xxxxxxxx
(Print Name) (Print Name)
President & CEO
(Title) (Title)
COMDATA TELECOMMUNICATIONS
SERVICES, INC.
By: /s/Xxxxxxx X. Xxxxxx
(Signature)
Sr. V.P. - G.M.
(Title)
Page 14 of 14
AMENDMENT NO. 1
This Amendment No. 1 (the "Amendment") is made as of the lst day
of September, 1997 (the "Effective Date") by and between Comdata Network,
Inc. and its wholly-owned subsidiary, Comdata Telecommunications Services,
Inc. (collectively referred to as the "Customer") and WorldCom Network
Services, Inc. d[b/a WilTel ("WilTel"), to those certain Program Enrollment
Terms (the "PET") to that certain WilMAX UNIVERSAL Telecommunications
Services Agreement (TSA#CTS-970801) made by and between Customer and WilTel
dated as of September 1, 1997 (the "TSA"). In the event of any conflict
between the terms of the TSA, the PET or the Service Schedule and the terms
of this Amendment No. 1, the terms of this Amendment No. 1 shall control.
The TSA (along with the PET and the Service Schedule) and this Amendment No.
1 shall collectively be referred to as the "Agreement".
The parties agree for good and valuable consideration, intending
legally to be bound, as follows:
A. CUSTOMER'S COMMITMENT. The parties agree to substitute
Subsection 4(A) of the PET to read in its entirety as follows:
(A) Commencing as of September 1, 1997, and continuing through
the end of the Service Term (including any extensions thereto)
(the "Commitment Period"), Customer agrees to maintain, on a
take-or-pay basis, Monthly Revenue of at least $1,083,333
("Customer's Minimum Revenue Commitment").
B. OTHER PROVISIONS. Except as specifically amended or modified
herein, the terms and conditions of the Agreement will remain in full force
and effect throughout the Service Term and any extensions thereof.
IN WITNESS WHEREOF the parties have entered into this Amendment
No. 1 on the date first written above.
WORLDCOM NETWORK SERVICES, INC. COMDATA NETWORK, INC.
d/b/a WilTel
By: By: /s/Xxxxxxx X. Xxxxxxxx
Print Name: Print Name: Xxxxxxx X. Xxxxxxxx
Tide: Title: Senior Vice President
COMDATA TELECOMMUNICATIONS
SERVICES, INC.
By: /s/Xxxxxxx X. Xxxxxx
Title: Sr. V.P. - G.M.
CONFIDENTIAL
Page 1 of 1
WILMAX UNIVERSAL-TM-
PROGRAM ENROLLMENT TERMS
These Program Enrollment Terms (the "PET") are made as of the 1st day of
September, 1997 (the "Effective Date"), by and between WorldCom Network
Services, Inc. d/b/a WilTel ("WilTel") and Comdata Network, Inc., and it wholly-
owned subsidiary, Comdata Telecommunications Services, Inc. (collectively
referred to as "Customer") and are a part of their agreement for switched
services, more particularly identified as TSA#CTS-970801 (the "Agreement"). In
accordance with the Agreement, charges to Customer for Service obtained
thereunder shall be subject to the Discount Schedule set forth below and the
Agreement shall also be subject to the terms and conditions set forth herein.
1. PRIOR AGREEMENT: The parties acknowledge that there currently exists that
certain WorldCom Communications Agreement dated as of December 1, 1994,
including that certain amendment thereto dated July 31, 1996 (collectively,
the "Prior Agreement") between WorldCom, Inc. d/b/a LDDS WorldCom (WilTells
parent company) and Comdata Telecommunications Services, Inc. and Comdata
Network, Inc. As of the Effective Date, the parties agree that (i) the
Prior Agreement shall be canceled in its entirety and of no further force
or effect and the parties shall be released from all liability thereunder
with the exception of certain accrued obligations arising under the Prior
Agreement such as the payment of money or the application of credits
accruing prior to the Effective Date and provisions intended to survive
termination, such as limitation of liability, indemnification and
confidentiality, (ii) all Service currently being provided Customer under
the Prior Agreement will be provisioned and maintained by WilTel taking
into account the terms and conditions of this PET.
2. SERVICE TERM: The Service Term shall commence as of the Effective Date
stated above and shall continue through and include January 22, 2003. Upon
the expiration of the Service Term, the service in question will continue
to be provided pursuant to the same terms and conditions as are then in
effect (including without limitation, the applicable rates and discounts
then in effect), subject to termination by either party upon one hundred
and twenty (20) days prior written notice to the other party.
3. DISCOUNT:
(A) Commencing with the Effective Date and continuing through the end of
the Service Term (including any extensions thereto), Customer's discount
(the "Discount") will be as determined under this Subsection 3(A) taking
into account any increase, as described in Subsection 3(B) below. The
Discount is based on the number of months contained in the Service Term
divided by 12. If the number of months is less than 12, the month-to-month
(MTM) discounts shall apply; if the product of the division is equal to or
greater than 1 but less than 2, the 1-Year discounts shall apply; if the
Page 1 of 16 CONFIDENTIAL
product of the division is equal to or greater than 2 but less than 3, the
2-Year discounts shall apply; and, if the product of the division is equal
to or greater than 3, the 3-Year discounts apply. Throughout the Service
Term including any applicable extensions thereto, Customer will
automatically receive the next higher discount when Customer's eligible
Monthly Revenue reaches the next level.
SERVICE TERM
Monthly Revenue(a) MTM 1-YR 2-YR 3-YR
[confidential information omitted]
(a) For purposes of this Agreement, "Monthly Revenue" will include all of
Customer' s gross measured and per call Switched Service charges (i.e.,
Directory Assistance and both Domestic and International) plus (i) three
(3) times Customer's first $300,000 recurring monthly Private Line
Interexchange Service charges (i.e., both Domestic and International) from
WilTel, (ii) two (2) times Customer's second $300,000 recurring monthly
Private Line Interexchange Service charges (i.e., both Domestic and
International) from WilTel, and (iii) Customer's recurring monthly Private
Line Interexchange Service charges (i.e., both Domestic and International)
from WilTel in excess of $600,000. Monthly Revenue shall exclude any pro
rata charges, access charges, ancillary or special feature charges, such
as, authorization codes or CDR Tapes, or any other charges other than those
identified by the relevant WilTel invoice as Monthly Recurring
Interexchange service charges or Switched Service charges.
(b) If Customer's Monthly Revenue is less than $10,000, Customer must
maintain at least one (1) DS-1 circuit comprising a Service Interconnection
as defined in the Service Schedule with respect to TERMINATION Service
and/or 800 ORIGINATION Service.
B. If Customer's Minimum Commitment (as described in Section 4 below) is
equal to or greater than $50,000, all of the percentages shown in the
Discount Schedule above will be increased by the following amounts based on
Customer's Minimum Commitment.
If Customer's Minimum The applicable percentages
Commitment is at least will be increased by
[confidential information omitted]
Page 2 of 16 CONFIDENTIAL
Example: Assume Customer's Minimum commitment is $250,000 and the Service
Term is twenty-four (24) months. Commencing with the Effective Date and
continuing through the end of the Service Term (including any applicable
extensions thereto), Customer's applicable discount percentage will be
[confidential information omitted].
4. CUSTOMER'S MINIMUM REVENUE COMMITMENT:
(A) Commencing as of September 1, 1997, and continuing through the end of
the' Service Term Including any extensions thereto) (the "Commitment
Period"), Customer agrees to maintain, on a take-or-pay basis, Monthly
Revenue of at least $1,300,000 ("Customer's Minimum Revenue Commitment").
In the event Customer is not maintaining TERMINATION Service or 800
ORIGINATION Service but is maintaining other Services from WilTel hereunder
(e.g., SWITCHED ACCESS Service, DEDICATED ACCESS Service or TRAVEL CARD
Service), Customer's Minimum Revenue Commitment will be the greater of (i)
$10,000, or (ii) the amount stated above.
(B) Provided Customer's cumulative Monthly Revenue (as that term is
defined in Subsection 3(A) above) from WilTel under this Agreement
commencing with the Effective Date is at least $45,000,000 (i.e., in the
aggregate), Customer may elect to terminate Customer's Minimum Revenue
Commitment described in Subsection 4(A) above by providing WilTel written
notice ("'Customer Notice"). In such event, commencing with the first day
of the first full month following at least thirty (30) days after WilTel
receives the Customer Notice (the "Commitment Termination Date"), (i)
Customer's Minimum Revenue Commitment shall terminate and will no longer be
in force or effect, and (ii) for the remainder of the Service Term
Customer's Discount will determined under the Discount Schedule described
in Subsection 3(A) above based on a 3-YR Service Term without taking into
account any increase under Subsection 3(B) above.
(C) 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
Customer's Minimum Revenue Commitment as described in Subsection 4(A)
above. 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, WilTel agrees to negotiate with Customer concerning
the purchase of such product or offering and the
Page 3 of 16 CONFIDENTIAL
reduction of Customer's Minimum Revenue Commitment, provided WilTel
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 Customer completely ceases providing telecommunications services,
WilTel agrees to reduce Customer's Minimum Revenue Commitment by an amount
equal to the product obtained by multiplying (i) the previous three (3)
months' average Monthly Revenue for services purchased by Customer under
this Agreement which are attributable to Customer by (ii) twelve (12).
5. DEFICIENCY CHARGE: In the event Customer does not maintain Customer's
Minimum Revenue Commitment in any month during the Commitment Period, then
for those month(s) only, Customer will pay WilTel the difference between
Customer's Minimum Revenue Commitment and Customer's actual Monthly Revenue
as described in Section 3 (the "Deficiency Charge"). The Deficiency Charge
will be due at the same time payment is due for Service provided to
Customer, or immediately in an amount equal to Customer's Minimum Revenue
Commitment for the unexpired portion of the Service Term if WilTel
terminates the Agreement based on Customer's default.
6. APPLICATION OF DISCOUNTS:
(A) After determining Customer's applicable discount percentage under
Section 3 above, the applicable percentage will be applied to Monthly
Revenues comprised of Customer's Interstate (including Alaska, Hawaii, the
United States Virgin Islands and Puerto Rico unless otherwise noted herein)
measured usage charges (which includes 1+ and 800 usage, whether switched
access or dedicated access or travel card usage).
(B) During the Service Term of the Agreement, accumulated credits derived
from the applicable Discounts will be applied in arrears commencing with
the first day of the month following the Effective Date, that is, will be
applied to Customer's measured usage charges for the preceding month (the
"Discount Period"). The initial Discount Period shall include any partial
calendar month following Start of Service, or such other time basis as may
be mutually determined by the parties.
(C) Each Discount will result in the application of a credit obtained
during the Discount Period to the WilTel invoice to Customer relevant to
the billed measured Switched Service for the calendar month next following
the completion of each Discount Period, provided Customer has paid
undisputed charges (including any late fees, if applicable) for that month
and has not otherwise been subject to a Suspension Notice in accordance
with the Agreement. Failure of Customer to comply with the foregoing
provision shall entitle WilTel to withhold any credit due Customer for the
Discount Period in question until such charges (including late fees) have
been paid in full.
Page 4 of 16 CONFIDENTIAL
7 RATES:
(A) TERMINATION Service
(i) Interstate Rates Per Minute
[confidential information omitted] without regard to time of
day, within the 48 contiguous United States except with respect
to termination in the SUPERSAVER LATAs described below.
(ii) Interstate Extended Rates Per Minute
SEE the DEDICATED ACCESS Service Extended Rates described in
Subsection 6(D) below.
(iii) Interstate SUPERSAVER Rates Per Minute
[confidential information omitted] without regard to time of
day. These rates are only available and only apply to
Interstate TERMINATION Service calls to the SUPERSAVER LATAs set
forth on Schedule 1 attached hereto (i.e., Intrastate
TERMINATION Service calls will not be subject to SUPERSAVER
Rates).
(iv) Intrastate Rates Per Minute [confidential information omitted]
SEE the DEDICATED ACCESS Service Intrastate rates shown on
Schedule 2 attached hereto.
(v) International (excluding Canada and Mexico) Rates Per Minute
[confidential information omitted]
SEE the DEDICATED ACCESS Service International rates shown on
Schedule 5 attached hereto. (Note: The applicable "Rate Plan"
will be as determined under Section 7 below.)
(vi) Canada and Mexico Rate Per Minute [confidential information
omitted].
SEE the DEDICATED ACCESS Service Canada and Mexico rates shown
on Schedule 3 attached hereto.
(B) 800 ORIGINATION Service
(i) Interstate Rates Per Minute
[confidential information omitted] without regard to time of
day, within the 48 contiguous United States except with respect
to origination in the SUPERSAVER LATAs described below.
(ii) Interstate Extended Rates Per Minute
SEE the DEDICATED ACCESS Service rates described in Subsection
6(d) below.
Page 5 of 16 CONFIDENTIAL
(iii) Interstate SUPERSAVER Rates Per Minute
[confidential information omitted] without regard to time of day
These rates are only available and only apply to Interstate 800
ORIGINATION Service calls from the SUPERSAVER LATAs set forth on
Schedule 1 attached hereto (i.e., Intrastate 800 ORIGINATION
Service calls will not be subject to SUPERSAVER Rates).
(iv) Intrastate Rates Per Minute [confidential information omitted]
SEE DEDICATED ACCESS Service Intrastate Rates shown on
Schedule 2 attached hereto.
(v) Canada Rates Per Minute [confidential information omitted]
SEE the DEDICATED ACCESS Service Mexico and Canada rates shown
on Schedule 3 attached hereto.
(C) SWITCHED ACCESS Service
(i) Interstate Rates Per Minute
[confidential information omitted] Day/Nonday within the 48
contiguous United States.
(ii) Interstate (1+) Extended Rates Per Minute
[confidential information omitted] Day, [confidential
information omitted] Nonday from the 48 contiguous United States
to Hawaii.
[confidential information omitted] Day, [confidential
information omitted] Nonday from the 48 contiguous United States
to Alaska, Puerto Rico and the United States Virgin Islands.
[confidential information omitted] Day, [confidential
information omitted] Nonday from Hawaii to the 48 contiguous
United States.
See the SWITCHED ACCESS Service (1+) Rates shown on Schedule 3
for calls from Hawaii to Canada and Mexico and Schedule 8 for
Calls from Hawaii to certain International locations.
(iii) Interstate (800) Extended Rates Per Minute confidential
information omitted].]
[confidential information omitted] Day, [confidential
information omitted] Nonday from Hawaii to the 48 contiguous
United States.
[confidential information omitted] Day, [confidential
information omitted] Nonday from Alaska to the 48 contiguous
United States.
[confidential information omitted] Day, [confidential
information omitted] Nonday from Puerto Rico to the 48
contiguous United States.
[confidential information omitted].Day, [confidential
information omitted] Nonday from the United States Virgin
Islands to the 48 contiguous United States.
Page 6 of 16 CONFIDENTIAL
(iv) Intrastate Rates Per Minute [confidential information omitted]
SEE the SWITCHED ACCESS Service Intrastate rates shown on
Schedule 2 attached hereto.
(v) International (excluding Canada and Mexico) Rates Per Minute
[confidential information omitted]
SEE the SWITCHED ACCESS Service International rate shown on
Schedule 4 attached hereto. [Note: The applicable "Rate Plan"
will be as determined under Section 7 below.]
(vi) Canada and Mexico Rates Per Minute [confidential information
omitted]
SEE the SWITCHED ACCESS Service Canada and Mexico rates shown on
Schedule 3 attached hereto.
(C) DEDICATED ACCESS Service
(i) Interstate Rates Per Minute
[confidential information omitted] Day/Nonday within the 48
contiguous United States.
(ii) Interstate (1+) Extended Rates Per Minute [confidential
information omitted] Day, [confidential information omitted]
Nonday from the 48 contiguous United States to Hawaii.
[confidential information omitted] Day, [confidential
information omitted] Nonday from the 48 contiguous United States
to Alaska, Puerto Rico and the United States Virgin Islands.
(iii) Interstate (800) Extended Rates Per Minute [confidential
information omitted]
[confidential information omitted] Day,
[confidential information omitted] Nonday from Hawaii to the 48
contiguous United States.
[confidential information omitted] Day,
[confidential information omitted] Nonday from Alaska to the 48
contiguous United States.
[confidential information omitted] Day,
[confidential information omitted] Nonday from Puerto Rico to
the 48 contiguous United States.
[confidential information omitted] Day,
[confidential information omitted] Nonday from the United States
Virgin Islands to the 48 contiguous United States.
(iv) Intrastate Rates Per Minute [confidential information omitted]
SEE the DEDICATED ACCESS Service Intrastate rates shown on
Schedule 2 attached hereto.
Page 7 of 16 CONFIDENTIAL
International (excluding Canada and Mexico) Rates Per Minute
[confidential information omitted]
SEE the DEDICATED ACCESS Service International rates shown on
Schedule 5 attached hereto. (Note: The applicable "Rate Plan"
will be as determined under Section 7 below.]
(vi) Canada and Mexico Rates Per Minute [confidential information
omitted]
SEE the DEDICATED ACCESS Service Canada and Mexico rates shown
on Schedule 3 attached hereto.
(D) TRAVEL CARD Service:
(i) Basic Interstate TRAVEL CARD Service Rates Per Minute
[confidential information omitted] Day/Nonday within the 48
contiguous United States.
(ii) Basic Intrastate TRAVEL CARD Service Rates per Minute
[confidential information omitted]
SEE the SWITCHED ACCESS Service Intrastate rates shown on
Schedule 2 attached hereto.
(iii) Basic International (excluding Canada and Mexico) TRAVEL CARD
Service Rates Per Minute [confidential information omitted]
SEE the SWITCHED ACCESS Service International rates shown on
Schedule 4 attached hereto. [Note: The applicable "Rate Plan"
will be as determined under Section 7 below.] International
TRAVEL CARD Service calls from the 48 contiguous United States
to International locations (excluding only Canada) are subject
to a surcharge of [confidential information omitted] per call.
(iv) Basic Canada TRAVEL CARD Service Rates Per Minute [confidential
information omitted]
[confidential information omitted] Day, [confidential
information omitted] Nonday from the 48 contiguous United States
to Canada. TRAVEL CARD Service calls from the 48 contiguous
United States to Canada are subject to a surcharge of
[confidential information omitted] per call.
[confidential information omitted] Day, [confidential
information omitted] Nonday from Canada to the 48 contiguous
United States. TRAVEL CARD Service calls from Canada to the
domestic United States are subject to a surcharge of
[confidential information omitted] per call.
Page 8 of 16 CONFIDENTIAL
(v) Basic Mexico TRAVEL CARD Service Rates Per Minute [confidential
information omitted]
SEE the SWITCHED ACCESS Service Mexico rates shown on
Schedule 3 attached hereto. TRAVEL CARD Service calls from the
48 contiguous United States to Mexico are subject to a surcharge
of [confidential information omitted] per call.
(vi) Enhanced TRAVEL CARD Service Pricing (Note: Enhanced features to
TRAVEL CARD Service are available at the rates shown on Schedule
6 attached hereto.) [confidential information omitted]
(F) Directory Assistance
(i) Interstate Rate Per Call [confidential information omitted]
(ii) Intrastate Rate Per Call [confidential information omitted]
8. INTERNATIONAL SERVICE:
(A) Commencing with the Effective Date, with respect to calls originating
in the continental United States and terminating to an International
location (excluding Puerto Rico, the United States Virgin Islands, Canada
and Mexico), unless Customer has elected an International Sub-Commitment as
described in Subsection (B) below, Customer's International rates will be
deemed to correspond with the level of applicable charges shown on Schedule
4 and Schedule 5, both of which are attached hereto and incorporated herein
by reference based on twenty-five percent (25%) of Customer's Minimum
Revenue Commitment described in Section 3 above (rounded down to the
nearest International Revenue Level) taking into account the International
Rate periods shown on Schedule 7, which is also attached hereto and made a
part hereof. In the event (i) Customer's Service Term is Month-to-Month,
or (ii) Customer's Minimum Revenue Commitment is less than $200,000,
Customer's International rates willcorrespond with the applicable level of
"Base International Rates" shown on Schedule 4 and Schedule 5. With respect
to TERMINATION Service and 800 ORIGINATION Service calls, Customer's
International rates will be the applicable DEDICATED ACCESS Service rates.
Example: Assume Customer's Commitment is $750,000. Customer's
applicable International rates would be deemed to correspond with the
$100,000 level [25% x 750,000 = 187,500, rounded down to the nearest
level].
(B) Commencing with the Effective Date and continuing through the end of
the Service Term including any applicable extensions thereto
("International Commitment Period"), Customer agrees to maintain, on a
take-or-pay basis, International Monthly Revenue (as described herein) of
at least (check one of the following) ("Customer's International Sub-
Commitment") [NOTE: If none of the boxes below are checked, Customer will
be deemed to have elected an International Sub-Commitment of $0]:
Page 9 of 16 CONFIDENTIAL
[confidential information omitted]
For purposes of this Agreement, Customer's "International Monthly Revenue,,
will be comprised of all of Customer's gross (ie., prior to the application
of discounts) measured and per call Switched Service charges (i.e.,
Directory Assistance and both Domestic and International) associated with a
call to an International location (excluding Puerto Rico, the United States
Virgin Islands, Canada and Mexico).
(C) At any time during the Service Term of this Agreement, Customer may
modify Customer's International Sub-Commitment ("Customer's Modified
International Sub-Commitment) for the remainder of the International
Commitment Period by notifying WilTel in writing. Commencing with the
first day of the month following at least thirty (30) days after WilTel
receives the notice described herein, (i) Customer's Modified International
Sub-Commitment will be effective, and (ii) customer's International rates
will correspond with the applicable rates shown on Schedule 4 and Schedule
5 based on Customer's Modified International Sub-Commitment.
(D) In the event Customer does not maintain Customer's International Sub-
Commitment (or Customer's Modified International Sub-Commitment, if
applicable) in any month during the International Commitment Period, then
for those month(s) only, Customer will pay WilTel the difference between
the greater of (i) Customer's International Sub-Commitment (or Customer's
Modified International Sub-Commitment) and Customer's actual International
Monthly Revenue as defined above (the "International Deficiency Charge"),
or (ii) the Deficiency Charge calculated under Section 4 above. If
applicable, the International Deficiency Charge will be due at the same
time payment is due for Service provided to Customer, or immediately in an
amount equal to Customer's International Sub-Commitment for the unexpired
portion of the International Commitment Period if WilTel terminates this
Agreement based on Customer's default.
9. SERVICE REQUESTS: The parties agree to substitute Subsection l(E) of the
TSA to read in its entirety as follows:
(E) Service Requests. Customer's requests to initiate or cancel Services
shall be described in an appropriate WilTel Service Request ("Service
Requests"). Service Requests may consist of machine readable tapes,
facsimiles or other means approved by WilTel. Further, Service Requests
shall specify all reasonable information, as determined by WilTel,
necessary or appropriate for WilTel to provide the Service(s) in question,
which shall include without limitation, the type, quantity and end point(s)
(when necessary) of circuits comprising a Service Interconnection as
described in the applicable Service Schedules, or automatic number
identification ("ANI") information relevant to the Service(s), the
Requested Service Date, and charges, if any, relevant to the Services
described in the Service Request. After WilTel's receipt and verification
Page 10 of 16 CONFIDENTIAL
of a valid Service Request for SWITCHED Service (as defined in the Service
Schedule) requiring a change in the primary interexchange carrier ("PIC"),
WilTel agrees to (i) submit the ANI(S) relevant to such Service Requests to
the following local exchange carriers ("LECs") (with which WilTel currently
has electronic interface capabilities) within two (2) business days:
Ameritech, Xxxx Atlantic, BellSouth, Nynex, Pacific Xxxx, Southwestern
Xxxx, US West, GTE and United, and (ii) submit the ANIs relevant to such
Service Requests to those LECs (which shall include any independent local
exchange companies (ILECS) with which WilTel does not have electronic
interface capabilities within five (5) business days.
10. CANCELLATION: The parties agree to substitute Section 2 of the TSA to read
in its entirety as follows:
2. Cancellation.
(A) Cancellation Charge. Subject to Customer's right to terminate
this Agreement as described in Subsection 2(C) and 2(D) below, at any
time after the Effective Date, Customer may cancel this Agreement
(i.e., for convenience) if Customer provides written notification
thereof to WilTel not less than thirty (30) days prior to the
effective date of cancellation. In such case (or in the event WilTel
terminates this Agreement as provided in section 8), Customer shall
pay to WilTel all charges for Service provided through the effective
date of cancellation plus a cancellation charge (the "Cancellation
Charge") equal to twelve and one-half percent (12 1/2%) of the average
of the last twelve (12) months Monthly Revenue times the number of
full months remaining in the Service Term.
(B) Liquidated Damages. It is agreed that WilTel's damages in the
event Customer cancels Service shall be difficult or impossible to
ascertain. The provision for a cancellation charge in Subsection 2(A)
above or Subsection 2(D) below is intended, therefore, to establish
liquidated damages in the event of a cancellation charge and are not
intended as a penalty.
(C) Cancellation Without Charge. Notwithstanding anything to the
contrary contained in Subsection 2(A) above and subject to Subsections
2(D) and 2(E) below, Customer may cancel this Agreement without
incurring any cancellation charge if (i) WilTel fails to provide a
network as warranted in Section 9 below; (ii) WilTel fails to deliver
call detail records promptly based on the frequency selected by
Customer (i.e., monthly, weekly or daily); or (iii) WilTel fails to
submit ANI(S) relevant to such Service Requests to the LECs within the
time period described in Subsection l(E) above. Provided, however,
Customer must give WilTel written notice of any such default and an
opportunity to cure such default within five (5) days of the notice.
In the event WilTel fails to cure any such default within the five-day
period on
Page 11 of 16 CONFIDENTIAL
more than three (3) occasions within any six (6) month period,
Customer may cancel this Agreement without incurring any cancellation
charge.
(D) Termination Due to Change in Control. 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 WilTel pursuant to this
Agreement, WilTel may make such adjustments to the rates contained
herein to provide an equivalent overall savings. In the event that
WilTel does not make such adjustment, then Customer may, at its
election, within sixty (60) days after such Customer
Acquisition/Purchase, terminate this Agreement upon ten (10) days
prior written notice to WilTel without incurring further liability to
WilTel.
11. TRANSFER CHARGES: The parties agree to substitute Subsection 3(B) of the
TSA to read in its entirety as follows:
(E) Transfer Charges/Disputed Transfers. Customer agrees that it is
responsible for (i) all charges incurred by WilTel to change the PIC
of End Users to the WilTel network, (ii) all charges incurred by
WilTel to change End Users back to their previous PIC arising from
disputed transfers to the WilTel network plus an administrative charge
equal to [confidential information omitted] of such charges, and (iii)
any other damages suffered by or awards against WilTel resulting from
disputed transfers unless such charges or damages are due solely to
the actions or omissions of WilTel.
12. EXCLUDED ANIS: The parties agree to substitute the second sentence of
Subsection 3 (C) of the TSA to read in its entirety as follows:
In the event WilTel rejects an ANI, WilTel will notify Customer as soon as
possible (but in no event later than three (3) days) of its decision
specifically describing the rejected ANI and the reason(s) for rejecting
that ANI, and will not incur any further liability under this Agreement
with regard to that ANI.
13. RECORDS: The parties agree to substitute the first sentence of Subsection
3(D) of the TSA to read in its entirety as follows:
Customer will maintain documents and records ("Records") supporting
Customer's re-sale of Switched Service, including, but not limited to,
appropriate and valid LOAS, if applicable, from End Users for a period of
not less than twelve (12) months or such other longer period as may be
required by applicable law, rule or regulation.
Page 12 of 16 CONFIDENTIAL
14. CUSTOMER SERVICE: The parties agree to substitute the last sentence of
Subsection 3 (E) of the TSA to read in its entirety as follows:
Customer agrees to immediately notify WilTel in the event an End User
notifies Customer of problems associated with the Service, including
without limitation, excess noise, echo, or loss of Service, and WilTel
agrees to respond to such problem(s) as it would in the normal course of
its business.
15. CUSTOMER RESPONSIBILITIES: The parties agree to substitute Subsection 4(B)
of the TSA to read in its entirety as follows:
(B) Fraudulent Calls. Customer shall indemnify and hold WilTel harmless
from all costs, expenses, claims or actions arising from fraudulent calls
of any nature which may comprise a portion of the Service to the extent
that the party claiming the call(s) in question to be fraudulent is (or had
been at the time of the call) an End User of the Service through Customer
or an end user of the Service through Customer's distribution channels,
except to the extent fraud was caused solely by WilTel's gross negligence
or willful misconduct. Customer shall not be excused from paying WilTel
for Service provided to Customer or any portion thereof on the basis that
fraudulent calls comprised a corresponding portion of the Service. In the
event WilTel discovers fraudulent calls being made (or reasonably believes
fraudulent calls are being made), nothing contained herein shall prohibit
WilTel from taking immediate action (without notice to Customer) that is
reasonably necessary to prevent such fraudulent calls from taking place,
including without limitation, denying Service to particular ANIs or
terminating Service to or from specific locations.
16. CHARGES AND PAYMENT TERMS: The parties agree to substitute Subsections 5
(A) and 5 (D) of the TSA to read in their entirety as follows:
(A) Payment. WilTel xxxxxxxx for Service are made on a monthly basis (or
such other basis as may be mutually agreed to by the parties) following
Start of Service. Subject to Subsection S(D) below, Service shall be
billed at the rates as described in the PET, and Service Requests, as the
case may be. Discounts, if any, applicable to the rates for certain
Switched Services are also set forth in the PET. Customer will pay each
WilTel invoice in full for Switched Service within forty-five (45) days of
the invoice date set forth on each WilTel invoice to Customer ("Due Date")
of payment is not received by WilTel on or before the Due Date, Customer
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 state law.
(D) Modification of Charges. WilTel reserves the right to eliminate
Service offerings, modify charges and/or add charges for Service offerings
(which charge modifications shall not exceed then-current generally
available WilTel charges for comparable services), upon not less than sixty
(60) days prior notice to Customer, which notice will state the effective
date for the
Page 13 of 16 CONFIDENTIAL
charge modification or service modification. In the event WilTel notifies
Customer of the elimination of a Service offering and/or an increase in the
charges, Customer may terminate this Agreement, without incurring a
cancellation charge only with respect to the Service offering affected by
the increase in charges. In order to cancel that offering, Customer must
notify WilTel, in writing, at least fifteen (15) days prior to the
effective date of the increase in charges. Further, in the event Customer
cancels its subscription to a Switched Service offering as described in
this Subsection 5(D), WilTel and Customer agree to negotiate in good faith
concerning the decrease of Customer's Minimum Monthly Commitment, if any,
described in the PET.
17. REMEDIES FOR BREACH: The parties agree to substitute the first sentence of
Section 8 of the TSA to read in its entirety as follows:
In the event Customer fails to pay any amount due hereunder for Services
rendered by WilTel or is in material breach of this Agreement, including
without limitation, failure to pay charges due hereunder by the date stated
in the Suspension Notice described in Subsection 5(F), WilTel shall have
the right, after giving Customer five (5) days prior notice, and in
addition to foreclosing any security interest WilTel may have, to (i)
terminate this Agreement, (ii) withhold billing information from Customer;
and/or (iii) contact the End Users (for whom calls are originated and
terminated solely over facilities comprising the WilTel network) directly
and xxxx such End Users directly until such time as WilTel has been paid in
full for the amount owed by Customer.
18. STATE CERTIFICATION: The parties agree to substitute Section 12 of the TSA
to read in its entirety as follows:
12. State Certification. Customer warrants that in all jurisdictions
in which it provides long distance services that require certification and
in which it uses the WilTel network, it has obtained the necessary
certification from the appropriate governmental authority. urther, if
required by WilTel, Customer agrees to provide proof of such certification
reasonably acceptable to WilTel. In the event Customer is prohibited,
either on a temporary or permanent basis, from conducting its
telecommunications operations in a given state, Customer shall (i)
immediately notify WilTel by facsimile, and (ii) send written notice to
WilTel within twenty-four (24) hours of such prohibition.
19. AUHTORIZED USE OF WILTEL NAME: The parties agree to substitute the second
sentence of Section 14 of the TSA to read in its entirety as follows:
Additionally, Customer shall provide to WilTel for its prior review and
written approval, all promotions, advertising or other materials or
activity using or displaying WilTel's name.
Page 14 of 16 CONFIDENTIAL
20. CHOICE OF LAW; FORUM: The parties agree to substitute Section 20 of the TSA
to read in its entirety as follows:
20. Choice of Law; Forum.
(A) Law. This Agreement shall be construed under (i) the laws of the
State of Oklahoma without regard to choice of law principals; (ii) if
applicable, the Communications Xxx 0000, as amended; and (iii) if
applicable, relevant decisions of the Federal Communications
Commission.
(B) Forum. Any legal action or proceeding with respect to this
Agreement may be brought in (i) the Courts of the State of Oklahoma in
and for the County of Tulsa or the United States of America for the
Northern District of Oklahoma, or (ii) the Courts of the State of
Tennessee in and for the County of Davidson or the United States of
America for the Middle District of Tennessee. By execution of this
Agreement, both Customer and WilTel hereby submit to such
jurisdiction, hereby expressly waiving whatever rights may correspond
to either of them by reason of their present or future domicile. In
furtherance of the foregoing, Customer and WilTel hereby agree to
service by U.S. Mail at the notice addresses referenced in Section 15.
Such service shall be deemed effective upon the earlier of actual
receipt or seven (7) days following the date of posting.
21. PRESS RELEASES: The parties agree to substitute Subsection 21(C) of the TSA
to read in its entirety as follows:
(C) Press Release. Except to the extent specifically allowed
under Section 14, the parties further agree that any press release,
advertisement or publication generated by a party regarding this Agreement
or in which a party desires to mention the name of the other party or the
other party' s parent or affiliated companies), will be submitted to the
non-publishing party for its written approval prior to publication.
22. RULE OF CONSTRUCTION: The parties agree to delete Subsection 23(D) in its
entirety.
23. MISCELLANEOUS:
(A) WilTel agrees to waive the [confidential information omitted] charge
for Daily CDRs described in Subsection 9(D) of the Service Schedule.
(B) WilTel agrees to waive the [confidential information omitted] charge
for every Customer requested billed telephone number (whether verified or
non-verified) described in Section 15 of the Service Schedule.
(C) In the event WilTel withdraws or otherwise cancels any tariff
referenced in this Agreement, whether in whole or in part and whether
voluntarily or by reason of any statute, rule or order of any governmental
unit or regulatory body, the referenced terms or provision then in effect
as of the date of withdrawal or
Page 15 of 16 CONFIDENTIAL
cancellation shall remain in full force or effect subject to modification
as may be mutually agreed to by the parties.
24. REQUIREMENTS: During the Service Term, Customer agrees to purchase from
WilTel under this Agreement at least seventy percent (70%) of Customer's
internal corporate traffic, and Customer's resale traffic. For purposes of
this Section 23, WilTel agrees to exclude (i) that volume of traffic
provided through services to Customer as of December 1, 1994, by ETS, an
AT&T aggregator, and (ii) that volume of traffic attributable to any
subsidiary or other business unit of Customer acquired on or after
October 16, 1995.
IN WITNESS WHEREOF, the parties have executed these WilMAX UNIVERSAL-TM-
Program Enrollment Terms on the date first written above.
WORLDCOM NETWORK SERVICES, INC. COMDATA NETWORK, INC.
d/b/a WilTel
By: By: /s/Xxxx Xxxxxxxx
(Signature) (Signature)
Xxxx Xxxxxxxx
(Print Name) (Print Name)
President & CEO
(Title) (Title)
COMDATA TELECOMMUNICATIONS
SERVICES, INC.
By: /s/Xxxxxxx X. Xxxxxx
(Signature)
(Print Name)
Sr. V.P. - G.M.
(Title)
ATTACHMENTS:
Schedule 1 SUPERSAVER LATAs
Schedule 2 Intrastate Rates
Schedule 3 Canada and Mexico Rates; Canada and Mexico Rates from
Hawaii
Schedule 4 SWITCHED ACCESS Service International Rates
Schedule 5 DEDICATED ACCESS Service International Rates
Schedule 6 ENHANCED TRAVEL CARD Service Rates
Schedule 7 International Rate Periods
Schedule 8 Switched International Rates 1+ from Hawaii
Page 16 of 16 CONFIDENTIAL
