EXHIBIT 10.17
TELECOMMUNICATIONS SERVICES AGREEMENT
THIS TELECOMMUNICATIONS SERVICES AGREEMENT ("Agreement") is entered into on
17 March, 1997 (the "Effective Date"), between:
TELEGLOBE USA INC., a Delaware corporation having a business address at 0000
Xxxxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 (hereinafter "Teleglobe"); and
INTERNATIONAL TELEPHONE COMPANY, a corporation having a business address at 000
Xxxxx Xxxxxx, Xxxxxxx, XX 00000 (hereinafter the "Customer");
and with Teleglobe, collectively referred to as the "Parties" and individually,
a "Party".
W I T N E S S E T H:
--------------------
WHEREAS, Teleglobe is a provider of international telecommunications services;
and
WHEREAS, Customer desires to purchase certain telecommunications services
provided by Teleglobe and described below on the terms and conditions contained
herein.
WHEREAS, the Parties desire to enter into an agreement pursuant to Section 211
of the Communications Act of 1934, as amended, for carrier to carrier
telecommunications services;
NOW THEREFORE, the Parties, in consideration of the mutual covenants and
agreements hereinafter set forth, agree as follows:
1. DESCRIPTION OF SERVICES
1.1 Teleglobe shall provide those telecommunications switching services and
facilities to Customer to route Customer's international telecommunications
traffic to and from various destinations around the world, as more
particularly described in Annex 1 attached hereto and incorporated herein
by reference (the "Services"). Additional services may be added from time
to time to this Agreement upon terms and conditions to be mutually agreed
upon by the Parties and to be included by adding an amended Annex 1 to this
Agreement.
1.2 The destinations offered by Teleglobe for the provision of the Services are
listed in Annex 2 attached hereto and incorporated herein by reference (the
"Destinations"), which Destinations may be amended from time to time by
Teleglobe by providing Customer with fifteen (15) days prior written
notice.
2. TERM
2.1 This Agreement shall commence on the Effective Date and shall continue for
an initial term ("Term") of one (1) year. Thereafter this Agreement shall
remain in effect unless terminated by either party by providing a written
six (6) months notice of termination to the other party.
2.2 Teleglobe will endeavour to provide the Services on the date of completion
of testing (the "Service Date"), and will notify Customer when such testing
is completed.
1
3. VOLUME COMMITMENT
3.1 As of the Service Date, Customer shall send annually to the Destinations,
via Teleglobe's facilities, the minimum volume of minutes of traffic, if
any, set forth in Annex 3.
3.2 In addition to the Minimum Volume Commitment, if any, specified in Annex 3,
commencing with the second month after the Service Date, Customer shall
send a minimum of 150,000 minutes of traffic per month per each T1 facility
("Facility") provisioned by Teleglobe. In the event Customer fails to meet
such minimum traffic volume for such Facility, Teleglobe shall have the
right to terminate any and all such Facilities immediately and to provide
written notice thereof to Customer.
4. OPERATIONAL AND COMMERCIAL MATTERS
4.1 The point of interconnection with the Customer shall be Teleglobe's
facilities at 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX (the "Interconnection
Location"). Customer shall be responsible to procure, at its own expense,
the necessary facilities or equipment required to bring traffic to the
Interconnection Location. The initial traffic routing will be via
Teleglobe's arranged gateways.
4.2 The Parties shall coordinate the management of their respective system
facilities, with each Party being responsible for providing and operating,
at its own expense, its respective network facilities. The Parties also
shall interface on a 24 hours/7 days a week basis to assist each other with
the isolation and repair of any facility faults in their respective
networks, and with the identification, investigation and mitigation of real
time traffic flow problems to/from any Destinations.
4.3 Customer shall provide Teleglobe with prompt and accurate traffic
forecasting information in order to allow Teleglobe to provision the
Services. Such forecasts shall be provided by Customer prior to
implementation of the Services and thereafter as may be reasonably
requested by Teleglobe. Such forecasts shall be in form satisfactory to
Teleglobe and shall specify the traffic volumes, daily and seasonal
profiles and peak periods for each Destination.
4.4 Customer hereby appoints Teleglobe as its agent for purposes of
establishing related services with domestic and international underlying
carriers as may be required in connection with this Agreement.
4.5 Teleglobe reserves the right to cancel and/or temporarily suspend any or
all of the Services if Customer engages in activities which, in the
reasonable opinion of Teleglobe, may cause disruption or damage to
Teleglobe's network of facilities. Teleglobe shall use commercially
reasonable efforts to provide Customer with advance notice of such
suspension and or cancellation and in any case shall endeavour to provide
written confirmation of such suspension and or cancellation within a
commercially reasonable time thereafter.
5. PRICING AND BILLING
5.1 For the Services provided pursuant to this Agreement, Customer shall pay
Teleglobe the rates by Destination set forth in Annex 2 attached hereto and
incorporated herein by
2
reference (the "Rates"), which Rates may be adjusted by Teleglobe from time
to time by providing fifteen (15) days prior written notice to Customer.
5.2 Teleglobe shall provide a monthly invoice for the Services provided
hereunder in accordance with the then-current Rates as soon as practicable
after the end of each month. Such invoice will be based on the chargeable
duration of the calls routed pursuant to this Agreement and rounded to the
nearest six (6) second increment. The invoice will include traffic by
destination, tariffs by destination and total amount due. Chargeable calls
for Services shall begin on the earlier of Teleglobe receiving answer
supervision or when Teleglobe is charged by its carrier supplier and/or
provider.
5.3 All amounts due hereunder by Customer shall be payable to Teleglobe in U.S.
Dollars in immediately available funds within thirty (30) days of the date
of Teleglobe's invoice. If Customer in good faith disputes any invoiced
amount, it shall submit to Teleglobe within thirty (30) days following
receipt of such disputed invoice, full payment of the undisputed portion of
the invoice and written documentation identifying the minutes and/or rates
which are in dispute. The Parties shall investigate the matter and upon
mutual agreement, either a credit against future invoices will be issued by
Teleglobe or the withheld amount shall be paid by Customer, along with
interest as set forth below. Any amounts due hereunder that are not paid
when due shall accrue interest at the rate of one and one-half percent
(1.5%) per month, compounded daily, beginning with the day following the
date on which payment was due, and continuing until paid in full. Further,
Teleglobe shall have the right to set off any amounts due hereunder which
are not paid when due against any amounts owed to Customer by Teleglobe or
any of its affiliates pursuant to any other agreement or arrangement.
5.4 Teleglobe reserves the right at any time to require Customer to issue a
deposit, irrevocable letter of credit or other form of security acceptable
to Teleglobe if Customer's financial circumstances or payment history is or
becomes unacceptable to Teleglobe.
5.5 All Rates and other charges due hereunder are exclusive of all applicable
taxes, including value added tax, sales taxes, and duties or levies imposed
by any authority, government or government agency, all of which shall be
paid promptly when due by Customer, and Customer agrees to indemnify and
hold Teleglobe harmless from any liability therefor.
6. TERMINATION
6.1 In addition to any other rights at law or in equity and notwithstanding
Article 2.1 above, Teleglobe may terminate this Agreement immediately in
the event that Customer (i) fails to make any payment when due hereunder;
(ii) becomes insolvent or bankrupt or ceases paying its debts generally as
they mature; or (iii) commits a breach of any of the terms of this
Agreement (other than a breach of a payment obligation as addressed in (i)
above) and fails to remedy such breach within thirty (30) days after
receipt of written notice thereof from Teleglobe.
6.2 In the event of any termination pursuant to this Article 6, Customer shall
pay to Teleglobe any Rates for Services rendered through and including the
date of termination as well as any amounts due on account of any minimum
volume commitment obligations and Shortfall charges, if any, arising
pursuant to Annex 3.
3
7. LIMITATION OF LIABILITY
7.1 Customer acknowledges that Teleglobe has no control over how a foreign
administration or third party carrier establishes its own rules and
conditions pertaining to international telecommunications services.
Customer agrees that Teleglobe shall not be liable for any loss or damage
sustained by Customer, its interconnecting carriers or its end users due to
any failure in or breakdown of the communication facilities associated with
providing the Services, for any interruption or degradation of the Services
whatsoever shall be the cause or duration thereof, or for any other cause
or claim whatsoever arising under this Agreement.
7.2 In no event shall Teleglobe be liable to the Customer for consequential,
special or indirect losses or damages howsoever arising and whether under
contract, tort or otherwise (including, without limitation, third party
claims, loss of profits, loss of customers, or damage to reputation or
goodwill).
8. ASSIGNMENT
This Agreement is personal to the Parties hereto and may not be assigned or
transferred by either Party without the prior written consent of the other
Party; except that Teleglobe may assign this Agreement without consent to
any affiliated entity or successor in interest whether by merger,
reorganization, or transfer of all or substantially all of its assets or
otherwise.
9. FORCE MAJEURE
No failure or omission by Teleglobe to carry out or observe any of the
terms and conditions of this Agreement by Teleglobe shall give rise to any
claim against Teleglobe or be deemed a breach of this Agreement if such
failure or omission arises from an act of God or any other circumstance
commonly known as force majeure, an act of Government, or any other cause
beyond the reasonable control of Teleglobe.
10. PUBLICITY, CONFIDENTIALITY
10.1 For a period of two (2) years from the date of disclosure thereof, each
Party shall maintain the confidentiality of all information or data of any
nature ("Information") provided to it by the other Party hereto provided
such Information contains a conspicuous marking identifying it as
"Confidential" or "Proprietary". Each party shall use the same efforts (but
in no case less than reasonable efforts) to protect the Information it
receives hereunder as it accords to its own Information. The above
requirements shall not apply to Information which is already in the
possession of the receiving Party through no breach of an obligation of
confidentiality to the disclosing Party or any third party, is already
publicly available through no breach of this Article 10, or has been
previously independently developed by the receiving Party. This Agreement
shall not prevent any disclosure of Information pursuant to applicable law
or regulation, provided that prior to making such disclosure, the receiving
Party shall use reasonable efforts to notify the disclosing Party of this
required disclosure. All Information provided by any Party to the other
hereunder shall be used solely for the purpose for which it is supplied.
10.2 Without Teleglobe's prior written consent, Customer shall not (i) refer to
itself as an authorized representative of Teleglobe in promotional,
advertising, or other materials, (ii) use
4
Teleglobe's logos, trade marks, service marks, or any variations thereof in
any of its promotional, advertising, or other materials, or (iii) release
any public announcements referring to Teleglobe or this Agreement without
first having obtained Teleglobe's prior written consent.
11. NOTICE
11.1 All notices, requests, or other communications hereunder shall be in
writing, addressed to the parties as follows:
If to Customer: International Telephone Company
000 Xxxxx Xxxxxx
Xxxxxxx
XX 00000
Attention: Xxxx Xxxxx, President
Facsimile:(000) 000-0000
If to Teleglobe: Teleglobe USA Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Vice President, US Sales
Facsimile: (000) 000-0000
11.2 Notices mailed by registered or certified mail shall be conclusively deemed
to have been received by the addressee on the fifth business day following
the mailing of sending thereof. Notices sent by telex or facsimile shall be
conclusively deemed to have been received when the delivery confirmation is
received if followed by first class mail, postage prepaid. If either Party
wishes to alter the address to which communications to it are sent, it may
do so by providing the new address in writing to the other Party.
12. COMPLIANCE WITH LAWS
12.1 Customer shall not use the Services in any manner or for any purpose which
constitutes a violation of the laws of the United States or the laws of any
foreign jurisdiction in which the Services are being provided. Customer
further agrees to refrain from engaging in sales, advertising or marketing
within or outside of the United States which Teleglobe believes could
impair its or its affiliates' relationship with any overseas authority or
carrier.
12.2 The Parties hereby acknowledge that this Agreement shall be subject to
Section 211 of the Communications Act, as amended, and shall govern
Teleglobe's provision of the Services to the Customer. It is also
understood and agreed that the terms and conditions hereof shall in all
cases supersede any terms set forth in any Teleglobe tariff on file and in
effect with the Federal Communications Commission.
12.3 This Agreement and the continuance hereof by the Parties is contingent upon
the obtaining and the continuance of such approvals, consents, governmental
and regulatory authorizations, licenses and permits as may be required or
deemed necessary by the Parties, and the Parties shall use commercially
reasonable efforts obtain and continue same in full force and effect.
5
13. MISCELLANEOUS
13.1 Any Article or any other provision of this Agreement which is or becomes
illegal, invalid or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the remaining provisions
hereof, which provisions shall be severed from any illegal, invalid or
unenforceable Article or any other provision of this Agreement and shall
otherwise remain in full force and effect.
13.2 No waiver by either Party to any provisions of this Agreement shall be
binding unless made in writing, any such waiver shall relate only to such
specific matter, non-compliance or breach to which it relates to and shall
not apply to any subsequent matter, non-compliance or breach.
13.3 The relationship between the Parties shall not be that of partners, and
nothing herein contained shall be deemed to constitute a partnership
between them or a merger of their assets or their fiscal or other
liabilities or undertakings. Neither Party shall have the right to bind the
other Party, except as expressly provided for herein.
13.4 This Agreement shall be governed by the laws of the Commonwealth of
Virginia, without reference to its principles of conflict of laws. Customer
irrevocably consents and submits to personal jurisdiction in the courts of
the Commonwealth of Virginia for all matters arising under this Agreement.
13.5 This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original.
13.6 This Agreement, including the following Annexes:
Annex 1 Service Description
Annex 2 Destinations and Rates
Annex 3 Minimum Volume Commitments and Shortfall
represents the entire understanding between the Parties in relation to the
matters herein and supersedes all previous agreements made by either Party,
whether oral or written. This Agreement may only be modified by a writing
signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate,
or caused this Agreement to be executed in duplicate by a duly authorized
officer, as of the date first above written.
TELEGLOBE USA INC. INTERNATIONAL TELEPHONE
COMPANY
By: /s/signature illegible By: /s/Xxxx Xxxxxx
----------------------- -----------------------
Name: name illegible Name: Xxxx Xxxxxx
--------------------- ---------------------
Title: V.P./G.M. Title: V.P. Sales
-------------------- --------------------
6
ANNEX 1
SERVICE DESCRIPTION
-------------------
1. International Direct Distance Dialing (IDDD) -- Teleglobe will connect
--------------------------------------------
facilities to route international telecommunications traffic (IDDD type)
and will arrange with authorized international carriers to provide service
to various destinations around the world.
7
