1
EXHIBIT 10.51
[*]Confidential treatment has been requested for the information indicated
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. The
copy on file as an exhibit omits the information subject to the confidentiality
request. Such omitted information has been filed separately with the Commission.
AGREEMENT FOR TELECOMMUNICATION SERVICES
THIS AGREEMENT is entered into by and between KNOLOGY HOLDINGS, INC.
with offices located in Xxxx Xxxxx, Xxxxxxx (hereinafter "Customer") and
ITC*DELTACOM COMMUNICATIONS, INC., an Alabama corporation with offices located
in West Point, Georgia, (hereinafter "ITC*DeltaCom"), collectively referred to
as the "Parties", and shall be effective on the date last appearing below.
WHEREAS, Customer desires to purchase certain telecommunication
services from DeltaCom; and
WHEREAS, ITC*DeltaCom desires to provide Customer with certain
telecommunication services.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, ITC*DeltaCom and Customer agree as follows:
1. TERM: The term of this Agreement shall commence on the date of
signature and continue for a period of twelve (12) consecutive months. Upon
expiration of the term hereof, this Agreement shall be continued month to month
thereafter, with either Party having the right to terminate this Agreement by
giving Sixty (60) days prior written notice to the other.
2. SERVICES PROVIDED BY ITC*DELTACOM: Subject to the terms and
conditions of this Agreement, ITC*DeltaCom shall provide certain long distance
telecommunications services (the "Services") to Customer as further described
in Attachment 1. Both parties agree that the services provided herein which are
subject to regulation by any governmental entity, agency or commission shall be
provided in accordance with the governmental entity's, agency's, or commission's
rules and regulations and ITC*DeltaCom's current approved tariff and as the
same may be amended from time to time. All charges for usage of the services to
be provided by ITC*DeltaCom, or by Customer to its customers, hereunder shall
not exceed the maximum limit charges established by order or ruling of any
governmental agency or entity from time to time, if any such limits are
established.
3. RATES: The rates applicable to the Services provided to
Customer by ITC*DeltaCom are contained in Attachment 1.1.
4. PAYMENT FOR SERVICES: A statement for Services provided to
Customer under this Agreement shall be submitted to Customer by ITC*DeltaCom on
a monthly basis and shall be due and payable on the due date stated therein
(which shall not be earlier than thirty (30) days after Customer's receipt of
the statement). The first and the final statement for Services will be for a
partial month in the event the service dates do not coincide with ITC*DeltaCom
billing dates. Payments received more than ten (10) days from the due date will
be considered delinquent and will bear interest at the rate of one and one half
percent (1.5%) per month or at the maximum rate allowed by law, whichever is
less, on any sum remaining delinquent. Customer shall be responsible for
payment to ITC*DeltaCom for all excise, sales, use and other similar taxes
which may be levied by any governing body for Service furnished under this
Agreement. All statements shall be deemed to be correct and binding upon
Customer unless written notice is provded to ITC*DeltaCom of any disputed
charges within six (6) months of the date of the statement. In no event does
such notice excuse Customer from making payment within the time provided
herein.
1
2
5. SUSPENSION OF SERVICE FOR NONPAYMENT: ITC*DeltaCom may suspend
Service ten (10) days after mailing or telefaxing written notice to Customer of
nonpayment of any sum fifteen (15) or more days past the statement due date (but
only if the Customer does not cure the non-payment within the ten (10) day
period). Following a suspension of Service(s), ITC*DeltaCom may terminate the
Service(s) to Customer, in whole or in part, without further notice to Customer,
if nonpayment is not corrected with five (5) days of suspension of Service.
Neither suspension nor termination of the Service will relieve Customer of any
obligation to pay ITC*DeltaCom's statement(s) for Services. Should this
Agreement be terminated by Customer prior to the expiration of the term of this
Agreement, Customer shall be responsible for payment of all reasonable costs,
charges, and expenses incurred by ITC*DeltaCom resulting from the early
termination of this Agreement.
6. SECURITY FOR PAYMENT: Upon request by ITC*DeltaCom, Customer
agrees to provide financial statements and/or other indications of financial
circumstances.
7. COMPLIANCE WITH ADMINISTRATIVE PROCEDURES: Customer shall comply
with the administrative procedures of ITC*DeltaCom which have been previously
delivered to Customer, and as the same may be amended from time to time by
mutual agreement of the parties in writing, regarding providing of
documentation and information necessary for ITC*DeltaCom to provide the
Services described herein to Customer.
8. BRANDING OF CALLS: Customer shall be responsible for assuring that
for billing purposes all Services provided hereunder shall be branded in the
name of Customer and that Customer's customers and any other end users to whom
the Services are offered by Customer are informed that the Services provided
and rates charged the customer and end user are rates established by Customer.
9. CANCELLATION: Either Party shall have the right to cancel this
Agreement without liability if ITC*DeltaCom is prohibited from furnishing the
Service or if any material rate or term contained herein is materially
adversely changed by order of the highest court of competent jurisdiction to
which the matter is appealed, the Federal Communications Commission, or any
other federal, state, or local government authority.
10. USE AND PROTECTION OF INFORMATION: The parties agree that the terms
of this Agreement or any modifications hereto and any information exchanged
between them, except information which is in the public domain, in any form, is
confidential information ("Confidential Information"). The Parties agree that
during the term of this Agreement and for a period of three (3) years
thereafter, they will not, without the prior written consent of the disclosing
Party: (i) use any portion of such Confidential Information for any purpose
other than performance pursuant to this Agreement; or (ii) disclose any portion
of such Confidential Information to a third party; provided, however, that the
recipient may disclose Confidential Information to the extent such disclosure is
required either by a governmental or regulatory authority or to enforce its
rights under this Agreement. The obligations to protect Confidential Information
shall remain in effect except to the extent that such Confidential Information
(a) becomes generally available to the public other than as a result of
unauthorized disclosure by the recipient Party, (b) has been released without
similar restriction by the disclosing Party to another person or entity, (c) was
known by the recipient Party prior to disclosure or (d) was independently
developed by or furnished by an independent third party to the recipient Party
without a breach of this Agreement. Confidential Information of a tangible
nature shall remain the property of the disclosing Party, and shall be returned
to the disclosing Party or shall be destroyed upon termination of this
Agreement. The recipient Party
2
3
agrees to safeguard Confidential Information utilizing the same degree of care
utilized by the recipient Party in protecting its own confidential information.
11. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY: IN NO EVENT
SHALL ITC*DELTACOM BE LIABLE TO CUSTOMER, OR ANY END USER OR ANY OTHER PARTY,
PERSON OR ENTITY FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
PUNITIVE, OR ANY OTHER FORM OF DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR
NATURE WHATSOEVER, ARISING OUT OF MISTAKES, ACCIDENTS, ERRORS, OMISSIONS,
INTERRUPTIONS, LOST DATA, CLAIMS OF THIRD PARTIES, OR DEFECTS IN TRANSMISSION,
OR DELAYS, INCLUDING THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL
AUTHORITIES OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
OBLIGATIONS OF ITC*DELTACOM PURSUANT TO THIS AGREEMENT, WHETHER IN CONTRACT OR
TORT, INCLUDING NEGLIGENCE AND OTHERWISE. ITC*DELTACOM MAKES NO WARRANTY,
WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICE OR THE
LOCAL ACCESS, OR AS TO ANY OTHER MATTER ALL OF WHICH WARRANTIES BY ITC*DELTACOM
ARE HEREBY EXCLUDED AND DISCLAIMED. For purposes of this Paragraph, the term
"ITC*DeltaCom" shall be deemed to include ITC*DeltaCom Communications, Inc.,
its parent entity, affiliates, and subsidiaries.
12. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the sole
benefit of the parties hereto and their respective permitted successors and
assigns, and shall not be construed as granting rights to any person or entity
other than the parties or imposing on either party obligations to any person or
entity other than a party.
13. INDEMNITY: (A) Each Party, its officers, agents or employees
engaged in performance under this Agreement shall at no time be deemed to be
performing as agents or employees of the other Party, or as joint venturers,
and any acts, errors or omissions of such officers, agents and employees shall
not be deemed to be those of the other Party. (B) Each Party shall indemnify
and hold the other and/or all of its officers, agents, servants, parent,
subsidiaries and employees ("Affiliates") or any of them, harmless from and
against any and all losses, claims, damages, liabilities, costs, and expenses
("Claims") imposed upon either Party (including without limitation damages to
property or injuries, including death, to Affiliates, employees or
subcontractors, and all other persons performing this Agreement) as a result of
a negligent act or omission on the part of the indemnifying Party, its
Affiliates, or subcontractors in connection with the performance of this
Agreement or as a result of a breach or default of any covenant of the
indemnifying Party under this Agreement.
14. FORCE MAJEURE: Except as provided in this Agreement, either Party
may delay performance hereunder due to causes beyond its reasonable control,
including but not limited to acts of God, fire, explosion, vandalism, cable
cut, storm or other similar catastrophes; any law, order, regulation,
direction, action or request of the United States government, or of any other
government, including state and local governments, having jurisdiction over
either of the parties, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more of said governments, or
of any civil or military authority; national emergencies; insurrections; riots;
wars; or strikes, lock-outs, work stoppages or other labor difficulties. If
such delay in performance shall be on the part of ITC*DeltaCom and shall be for
more than thirty (30) days, then Customer may terminate this Agreement with no
liability on the part of any Party. The affected Party shall use its best
efforts to remove the cause of the delay.
3
4
15. ASSIGNMENT: This Agreement is not assignable by either Party
without the prior written consent of the other Party, which consent shall not
be unreasonably withheld, and any attempt to assign any of the rights, duties or
obligations of this Agreement without such consent is void. Notwithstanding the
foregoing, either Party may assign any rights, duties, or obligations of this
Agreement to a parent, subsidiary or affiliate, or any successors in interest
created by merger, divestiture, or reorganization without the written consent of
the other Party. It shall be a condition precedent to any permitted assignment
that the assignee shall execute a counterpart of this Agreement, thereby
becoming a Party to this Agreement and agreeing to be bound by all of the terms
and provisions hereof. Either Party may assign and pledge its interest under
this Agreement as security for indebtedness without the other Party's written
consent.
16. ADDITIONAL PROVISIONS:
(A) The failure of either Party to give notice of default or to
enforce or insist upon compliance with any terms or conditions of this
Agreement, the waiver of any term or condition of this Agreement, or the
granting of an extension of time for performance, shall not constitute the
permanent waiver of any term or condition of this Agreement, and this Agreement
and each of its provisions shall remain at all times in full force and effect
until modified by the parties in writing.
(B) Each Party agrees to comply with, and shall require its agents,
servants, employees and contractors to comply with all applicable laws, rules,
regulations and orders of all governmental and quasi-governmental agencies
having jurisdiction over such Party or its telecommunication services and to
obtain and maintain in effect all permits, licenses, approvals, and agreements
that are needed to operate its telecommunication services and perform its
obligations under this Agreement.
(C) In event suit is brought or an attorney is retained by any Party
to this Agreement to enforce the terms of this Agreement or to collect any
moneys due hereunder or to collect money damages for breach hereof, the
prevailing Party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorney's fees, court costs, costs of
investigation and other related expenses incurred in connection therewith. All
suits brought by either Party must be commenced within one (1) year of the
action on which the claim is based, or less if so required by Alabama law.
(D) No subsequent agreement between Customer and ITC*DeltaCom
concerning the Services shall be effective or binding unless it is made in
writing, and no representation, promise, inducement or statement or intention
has been made by either Party which is not embodied herein.
(E) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors or assigns; provided,
however, neither Party may assign or transfer its right or obligations under
this Agreement without prior written consent of the other Party, which consent
shall not be unreasonably withheld.
(F) Notices under this Agreement shall be in writing and delivered
by overnight express courier service or by registered or certified mail, return
receipt requested, postage paid, to the person whose names and business
addresses appear herein, or as otherwise provided by proper notice hereunder,
and the effective date of any notice under this Agreement shall be the date of
delivery or refusal of such notice, and not the date of mailing.
4
5
TO DELTACOM: Xxxxx Xxxxx, Vice President Special Markets
ITC*DeltaCom
000 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxx, XX 00000
COPY TO: General Counsel
ITC*DeltaCom
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
TO CUSTOMER: Xxxx Xxxxxxx
Knology Holdings, Inc.
1239 X.X. Xxxxxxx Xxxxx
X.X. Xxx 000
Xxxx Xxxxx, XX 00000
(G) The Parties agree that in the event a decision or rating by a
regulatory authority at the federal, state or local level materially affects the
rights or obligations of either Party arising out of this Agreement, the Parties
will negotiate in good faith to modify this Agreement in light of such decision.
Should said decision or ruling prevent the continuance of these services then
either Party may terminate this Agreement with notice to the other Party without
further liability hereunder, except as may be provided in this Agreement.
(H) This Agreement sets forth the entire understanding of the
Parties and supersedes any and all prior agreements, arrangements or
understandings relating to the subject matter hereof.
(I) The section headings used herein are for convenience only,
and shall not be deemed to constitute integral provisions of this Agreement.
(J) Each of the Parties hereto warrants to the other that the
person or persons executing this Agreement on behalf of such Party has the full
right, power and authority to enter into and execute this Agreement on such
Party's behalf and that no consent from any other person or entity is required
as a condition precedent to the legal effect of this Agreement.
(K) The Attachment(s) and Exhibits(s) referenced in this Agreement,
as same may be amended from time to time in writings executed by both Parties,
shall be deemed an integral part hereof to the same extent as if fully set out
herein.
(L) To facilitate execution, this Agreement may be executed in as
many counterparts as may be required; and it shall not be necessary that the
signatures of or on behalf of each Party appear on each counterpart; but it
shall be sufficient that the signature of or on behalf of each Party appear on
one or more of the counterparts. All counterparts shall collectively constitute
a single agreement. It shall not be necessary in any proof of this Agreement to
produce or account for more than any counterpart or counterparts contain
signatures of both Parties.
(M) This Agreement and all other documents and writings associated
herewith shall be governed by the laws of the state of Alabama. 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
5
6
be invalid or unenforceable under applicable law, said part shall be ineffective
to the extent of such invalidity only, without in any way affecting the
remaining parts of said provision or remaining provisions of this Agreement and
the Parties hereby agree to negotiate with respect to any such invalid or
unenforceable part to the extent necessary to render such part valid and
enforceable.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their
duly authorized representatives in one or more counterparts, each of which shall
constitute an original, on the date indicated below.
KNOLOGY HOLDINGS, INC. ITC*DELTACOM COMMUNICATIONS, INC.:
By: /s/ Xxxxx Bocucci By: /s/ Xxxxxxx Xxxxxxx
------------------------------- -------------------------------
Name: XXXXX BOCUCCI Name: XXXXXXX XXXXXXX
----------------------------- -----------------------------
Title: VP Title: CFO
---------------------------- ----------------------------
Date: April 26, 1999 Date: April 28, 1999
----------------------------- -----------------------------
6
7
ATTACHMENT 1
SERVICE DESCRIPTION
SERVICES OFFERED
ITC*DeltaCom will provide the following services to Customer consisting of, but
not be limited to, the following:
Domestic and International Outbound Dedicated Services
Domestic and International Inbound Toll Free Dedicated Services
Domestic Equal Access Outbound Switched Services
Domestic and International Toll Free Inbound Switched Services
Operator Services
Domestic Directory Assistance (411 and NPA-555-1212)
Calling Card Services
Prepaid LD Cards
"Extended" rates apply to Alaska, Hawaii, and domestic 809.
The following services will be billed in increments of 6 seconds:
Domestic Outbound Dedicated
Domestic Inbound Dedicated
International Inbound Dedicated
The following services will be billed in increments of 18 seconds for the
initial increment and 6 seconds for each additional increment thereafter:
Calling Cards
Domestic Equal Access Switched
Domestic Inbound (Toll Free) Switched
The following services will be billed in increments of 30 seconds for the
initial increment and 6 seconds for each additional increment thereafter:
International Outbound Dedicated
International Toll Free Switched
The following services will be billed per completed message:
Domestic Directory Assistance (411 and NPA-555-1212)
ACCESS
Customer will be responsible for access from its premise(s) to the ITC*DeltaCom
POP locations. Customer may obtain access, at their expense, to ITC*DeltaCom's
SS7 network.
CALL RECORDING
Customer will receive call records and billing detail from ITC/Interstate
Valley Telephone (IVTC). All call record recording from ITC*DeltaCom for
Customer is provided monthly, via magnetic tape, to IVTC for Customer xxxx
generation.
7
8
CALLING CARD PRINTING
ITC*DeltaCom will provide batch card printing to Customer with the following
requirements:
Customer will provide the plastic card stock and is responsible for the reorder
of plastic card stock. A minimum of three (3) weeks will be required to have
cards reordered. A minimum charge of fifty dollars ($50.00) per order will be
applied which will cover up to 100 cards. Cards may only be ordered in
increments of 100. These charges only apply to printing on one side of the
card. The card stock should have the dialing instruction preprinted on the back
side of the card. Information required to print the cards must be provided to
ITC*DeltaCom on diskette. For over 100 cards, the following rates apply:
# of Cards Per Card
---------- --------
101-500 $0.25
510-1000 $0.22
1001 and over $0.20
CALLING CARD SERVICE
ITC*DeltaCom will originate and terminate the calling card service for
Customer. The card numbers will reside in ITC*DeltaCom switches and will be
supplied to Customer in batch orders. Customer will be allowed two active
universal toll free numbers for calling card access. Customer will be
responsible for all calls on the card numbers issued to Customer. Customer
should notify ITC*DeltaCom immediately when Customer suspects fraudulent calls
on any of their assigned calling cards. Periodically, ITC*DeltaCom will request
Customer to deactivate calling cards that have not had usage for a period of
six (6) months.
PREPAID LD CARDS
Customized prepaid LD Cards will be provided to Customer at the following rates:
Production Costs: $450 per 1,000 cards
Custom voice recordings $25.00 per recording
Usage Rate: $0.17 per minute (includes inbound, outbound,
platform processing)
8
9
ATTACHMENT 1.1
BASE RATES
DEDICATED INBOUND/OUTBOUND
Interstate Interstate Intrastate Rates
SE Off Net
Florida Alabama Xxxxxxx X. Carolina Louisiana Tennessee
Volume
$0 - $150,000 $[*] $[*] $[*] $[*] $[*] $[*] $[*] $[*]
$150K - $300K $[*] $[*] $[*] $[*] $[*] $[*] $[*] $[*]
$300K + $[*] $[*] $[*] $[*] $[*] $[*] $[*] $[*]
SWITCHED INBOUND/OUTBOUND
Interstate Interstate Intrastate Rates
SE Off Net
Florida Alabama Xxxxxxx X. Carolina Louisiana Tennessee
Volume
$0 - $150,000 $[*] $[*] $[*] $[*] $[*] $[*] $[*] $[*]
$150K - $300K $[*] $[*] $[*] $[*] $[*] $[*] $[*] $[*]
$300K + $[*] $[*] $[*] $[*] $[*] $[*] $[*] $[*]
EXTENDED - $[*] per minute (includes Alaska, Hawaii and Domestic 809)
INTERNATIONAL OUTBOUND DEDICATED SERVICES:
Canada - $[*] per minute
Other countries (see attached)
TOLL FREE MONTHLY RECURRING FEE; $[*] PER TOLL FREE NUMBER/PER MONTH
PAYPHONE USER SURCHARGE FEE:
$[*] will be assessed for each toll free number dialed from a payphone when
said call terminates to a toll free (800/888) number to which customer is the
subscriber of the number from ITC*DeltaCom
CALLING CARDS:
Volume
$0 - $150,000 $[*] per minute
$150,001 - $300,000 $[*]
$300,001 and up $[*]
Customer will incur $[*] surcharge, per call, when using calling card
CUSTOMER IS RESPONSIBLE ALL FRAUD ASSOCIATED WITH CARD USAGE.
9
10
DOMESTIC DIRECTORY ASSISTANCE (see EXHIBIT A TO ATTACHMENT 1.1)
OPERATOR SERVICES - (see EXHIBIT B TO ATTACHMENT 1.1)
FACILITY COST
Customer will incur transport cost from DeltaCom POPs to the IVTC DMS switch
located in West Point as follows:
Xxxxxxxxxx & Columbus
These charges are quoted to Customer at $[*] per DS1
Other Customer sites will require transport cost to the ITC*DeltaCom POP in
that location to the selected Customer switch site at the rate of:
$[*] per DS0 circuit mile for DS1 level service
$[*] per DSO circuit mile for DS3 level service
These rates are applicable to the network identified by the red and dark green
lines as shown on the attached exhibit (see EXHIBIT C TO ATTACHMENT 1.1) and
which are served by multiple fiber facility based LD carriers.
These rates are for ITC*DeltaCom network facilities, POP to POP. If off-net
facilities are required, quotes will be provided to Customer on an individual
case basis.
Customer will not incur transport cost from DeltaCom POP located in West Point
to DeltaCom switch located in Birmingham.
10
11
EXHIBIT A TO ATTACHMENT 1.1
DIRECTORY ASSISTANCE PRICING FOR KNOLOGY
BellSouth Territory Per Attempt $[*]
BellSouth Territory is defined as the nine states comprising the BellSouth
territory. Independent areas are not covered in this pricing category.
Other domestic NPA's 0 to 20,000 Attempts $[*]
20,001 + Attempts $[*]
Customer listings (local service) must be listed with Xxxx for DA service
availability. This information must be provided to Xxxx directly from the
customer.
11
12
EXHIBIT B to Attachment 1.1
Operator Services Pricing
LIVE OPERATOR:
ATTEMPTS PER MONTH PRICE PER ATTEMPT*
------------------
1 - 25,000 $[*]
25,001 - 50,000 $[*]
50,001 - 100,000 $[*]
100,001 - AND UP $[*]
AUTOMATED OPERATOR: PRICE PER ATTEMPT*
ATTEMPTS PER MONTH ------------------
0 - 100,000
100,001 - 200,000 $[*]
200,001 - AND UP $[*]
VALIDATION SERVICES: $[*]
PER VALIDATION QUERY $[*]
PORT UTILIZATION: $[*]
CALL RATING:
PER CALL: $[*]
TRANSMIT OUTCLEARING TO ZPDI:
PER RECORD $[*]
OUTCLEAR CREDIT CARD CALLS TO ZPDI:
PER RECORD $[*]
BAD DEBT CALCULATION BEGINNING @ [*]%, TO BE TRUED UP TO ACTUAL
* pricing is based upon individual monthly volumes, with pricing
retroactive to first attempt once pricing level has been reached
for the month.
Tariff approved name for branded services by Customer must be filed and
provided to Operator Service group. Separate trunk group from Operator Service
switch to Customer's switch will be required for branding purposes. Cost of
these trunks will be Customer's responsibility.
Customized Recording for Branding
$[*] for the initial recording
$[*] for each occurrence to change the recording
Customer listings (local service) must be listed with Xxxx for DA service
availability. This is to be provided to Xxxx by Customer.
12
