RECIPROCAL TELECOMMUNICATIONS AGREEMENT
AGREEMENT made this 11th day of November, 1996 by and between IDT CORPORATION
(hereinafter "CUSTOMER"), located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 and PICKNET, INC., located at 000 Xxxxx 00 Xxxx, Xxxxx Xxxxx, Xxxxx, Xxx
Xxxxxx 00000 (hereinafter "PICK").
WITNESSETH:
WHEREAS, PICK and Customer are in the business of providing telecommunications
services; and
WHEREAS, Customer desires to purchase telecommunications services from PICK and
PICK desires to purchase telecommunications services from Customer;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the parties agree as
follows:
1. Services.
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(A) PICK agrees to furnish to Customer, and Customer agrees to purchase
from PICK, the telecommunications services set forth in Exhibit A attached
hereto.
(B) Customer agrees to furnish to PICK and PICK agrees to purchase from
Customer, the telecomnunications services as set forth in Exhibit B attached
hereto.
(C) Interconnection between Customer and PICK, for purposes of
performance hereunder, shall occur as agreed between the parties.
(D) It is understood that all Services provided by the parties
hereunder are provided for resale by the other party to its end users, customers
or subscribers.
2. Terms. This Agreement shall commence on the 1st day of November, 1996 (the
"Commencement Date") and continue for a period of one (1) year. This Agreement
shall thereafter continue, on the same terms and conditions, on a month-to-month
basis unless either party notifies the other party in writing not less than
thirty (30) days prior to the termination date of its desire to terminate this
Agreement.
3. Rates.
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PICK and Customer agree that each is granting the other most favorable
price per minute rates in the Exhibits attached to this Agreement as follows:
(A) During the term of this Agreement, PICK shall charge for the
telecommunications services, and Customer shall pay for such telecommunication
services, that amount as determined by using the appropriate rates set out in
Exhibit A.
(B) During the term of this Agreement, Customer shall charge for the
telecommunication services, and PICK shall pay for such telecommunication
services, that amount as determined by using the appropriate rates set out in
Exhibit B.
(C) PICK and Customer shall have the right to modify the rates and
conditions set forth in Exhibits "A" and "B" at any time during this Agreement,
but shall give the other party at least seven (7) days prior notice. Both
parties agree to provide each other with initial traffic projections, by
country, to the top ten (10) countries they are interested in purchasing rates
for from the other. Thereafter each will provide such projections to the other
on a quarterly basis. Projections shall be given on the Forms attached as
Exhibit 2A and 2B (to this Agreement) respectively as appropriate.
(D) Billing shall include raw CDR (unrated) and completely rated
summaries by country showing number of calls, number of minutes and
corresponding charges.
(E) All calls other than calls to Mexico, will be billed with a thirty
second minimum and thereafter in six-second increments rounded to the next
highest one-tenth of a minute per all record. Calls to Mexico are billed in one
minute increments.
4. Charges and Payment Terms.
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(A) PICK and Customer hereby acknowledge the charges for the provision
of Service will be billed as provided herein and that payment for such Service
shall be payable in U.S. dollars. For each week during the term of this
Agreement, PICK and Customer will provide the other party with an invoice for
Service provided during the previous week. The invoice amounts due and payable
by PICK and Customer shall be offset, and the party which has a balance payable
after such netting shall make payment to the other party on or before the second
(2nd) day of the following week. Late payments will be assessed a late charge of
1.5% per month or the maximum amount permitted by law, whichever is less.
Payments shall be made by wire transfer or such other methods as may be agreed
by the parties.
(B) Should either PICK or Customer dispute any of the charges on the
weekly invoice, it shall notify the other party of the disputed charges not
later than sixty (60) days from the date of invoice. Said dispute shall set
forth all details concerning the disputed charges in writing. In the event of a
dispute, the entire invoice shall nevertheless be paid in accordance with the
payment terms set forth herein. After resolution of the disputed portion of the
invoice, the adjustments, if any, shall be immediately credited to the other
party's account.
(C) Each party hereby waives any deposit requirement from the other for
providing services under this Agreement.
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5. Warranty. PICK and Customer will use reasonable efforts under the
circumstances to maintain overall network quality. The quality of Service
provided hereunder shall be consistent with other common carrier industry
standards, government regulations and sound business practices. PICK AND
CUSTOMER MAKE 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.
6. Continuing Relationship and Termination. This Agreement and the relationship
of the parties may be terminated by the non-defaulting party in accordance with
applicable provision hereof and/or the occurrence of any of the following events
which shall constitute a default:
(A) Material breach of this Agreement after notice thereof and failure
of the breaching party to cure such breach: (i) within seven (7) days of receipt
of such notice where such breach involves a failure to make payments when due
and (ii) within thirty (30) days of receipt of such notice for all other
breaches;
(B) The adjudication of bankruptcy of either party under any Federal,
state or municipal bankruptcy or insolvency act, or the appointment of a
receiver or any act or action constituting a general assignment by a party of
its properties and interest for the benefit of creditors;
(C) The determination by any governmental entity having jurisdiction
over the Service provided under this Agreement that the relationship of the
parties and/or Services provided hereunder are contrary to then existing laws.
7. Taxes. The parties acknowledge and understand that all charges stated in
attached Exhibits are computed exclusive of any applicable use, excise, gross
receipts, sales and privilege taxes, duties, fees or other similar liabilities
(other than general income or property taxes). Such Additional Charges shall be
paid by the party receiving services in addition to all other charges provided
for herein. All applicable taxes, duties, fees or other liabilities shall be
billed to the appropriate party by the other party unless such party provides
the other party with applicable tax exemption documentation. Each party is
solely liable for and hereby indemnifies and holds the other party harmless from
filing all applications, forms, reports, returns, statements, and other
documents and information with any payment of all taxes and/or assessments to
all local, county, state, federal and other taxing authorities having
jurisdiction with respect to any and all charges to each party's end users or
customers for the services, including without limitation, any governmental
agency or authority in any foreign country.
8. Suspension of Services. In the event payment in full is not received from
either party when due, the other party shall have the right, after giving the
defaulting party seven (7) days prior notice after the due date to suspend all
or any portion of the Service to the defaulting party until such time as such
party has paid in full all charges then due, including any late fees.
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9. Liability; General Indemnity.
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(A) Limited Liability. IN NO EVENT WILL EITHER PARTY 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 NON-PERFORMANCE OF OBLIGATIONS HEREUNDER.
THE LIABILITY OF PICK AND CUSTOMER WITH RESPECT TO THE INSTALLATION (INCLUDING
DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR
RESTORATION OF ANY SERVICE OR FACILITIES OFFERED UNDER THIS AGREEMENT SHALL NOT
EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THIS AGREEMENT TO THE
PERIOD DURING WHICH SERVICES WERE AFFECTED. FOR THOSE SERVICES WITH MONTHLY
RECURRING CHARGES, THE LIABILITY OF EITHER PARTY IS LIMITED TO AN AMOUNT EQUAL
TO THE PROPORTIONATE MONTHLY RECURRING CHARGES FOR THE PERIOD DURING WHICH
SERVICE WAS AFFECTED.
(B) General Indemnity. In the event parties other then PICK and
Customer shall have use of the Service, then PICK and Customer agree to forever
indemnify and hold each other harmless from and against any and all claims,
demands, suits, actions, losses, damages assessments or payments which may be
asserted by said parties arising out of or relating to any defect in the
Service.
10. Force Majeure. If either party's performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond its reasonable control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any law,
order, regulation, direction, action or request of the United States government
or state or local governments, or of any department agency, commission, court,
bureau, corporation or other instrumentality of any one or more said
governments, or of any civil or military authority, or by national emergency,
insurrection, riot, war, strike, lockout or work stoppage or other labor
difficulties, supplier failure, shortage, breach or delay, then such party shall
be excused from such performance on a day-to-day basis to the extent of such
restriction or interference. Such party shall notify the other and use
reasonable efforts under the circumstances to avoid or remove such causes of
nonperformance and shall proceed to perform with reasonable dispatch whenever
such causes are removed or cease. This provision shall not, however, relieve
either party from making any payment when due.
11. Notices. All notices pursuant to this Agreement shall be deemed given when
delivered personally or sent by registered mail or facsimile or overnight
carrier (such as Federal Express), charges prepaid; as follows:
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PICKNET, INC. IDT CORPORATION
000 Xxxxx 00 Xxxx, Xxxxx Xxxxx 294 State Street
Wayne, NJ 07470 Xxxxxxxxxx, XX 00000
FAX: (000) 000-0000 FAX: (000) 000-0000
Attn: Xxxxx Xxxxx, President Attn: Xxxxxxxx X. Xxxx, Vice President
Notice of change of address shall also be governed by this Paragraph.
12. No-Waiver. No term or provision of this Agreement shall be deemed waived and
no breach or default shall be deemed excused unless such waiver or consent shall
be in writing and signed by the party claimed to have waived or consented. No
consent by any party to, or waiver of, a breach or default by the other, whether
express or implied, shall constitute a consent to, waiver of, or excuse for any
different or subsequent breach or default.
13. Partial Invalidity. If any term or provision of this Agreement shall be
found to be illegal or unenforceable, then notwithstanding such illegality or
unenforceability, this Agreement shall remain in full force and effect and such
term or provision shall be deemed to be deleted.
14. 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.
15. Use of Service. PICK and Customer agree to provide the Service specified
hereunder 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 party.
16. Choice of Law. This Agreement shall be construed in accordance with the laws
of the State of New Jersey. Both parties agree that jurisdiction and venue for
any and all disputes under this agreement will be proper in the State of New
Jersey, County of Bergen.
17. Proprietary Information.
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(A) Confidential Information. The parties understand and agree that the
terms and conditions of this Agreement, and documents referred (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 or PICK for any Service proposed
to be provided or actually provided hereunder) and all information regarding the
customers of Customer or PICK, as well as such information relevant to any other
agreements between the parties (collectively "Confidential Information"), are
confidential as between Customer and PICK.
(B) Limited Disclosure A party shall not disclose Confidential
Information unless subject to discovery or disclosure pursuant to legal process,
or unless required by the SEC since
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both parties are public corporations, or to any other party other than the
directors, officers, and employees of a party or agent's of a party including
their respective brokers, lenders, insurance carriers or prospective purchasers
of the party's business 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. Likewise, each party will give notice of any
disclosure to the SEC to the other party. Violation by a party or its agents of
the foregoing provision 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's parent or affiliated company(ies), will be submitted to the
non-publishing party for its written approval prior to publication.
(D) Survival and Confidentiality. The provisions of this Paragraph will
be effective as of the date of this Agreement and remain in full force and
effect for a period equal to the longer of (i) five (5) years following the
effective date of this Agreement; or (ii) five (5) years following the
termination of all Service hereunder.
18. Successors and Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors or assigns,
provided, however, that neither party shall assign or transfer its rights or
obligations under this Agreement without the prior written consent of the other
party, which shall not unreasonably be withheld and further provided that any
assignment or transfer without such consent shall be void.
19. General
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(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,
provision 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 draftsman hereof shall apply in the interpretation of
this Agreement.
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20. Entire Agreement. This Agreement consists of all of the terms and
conditions contained herein; in executed Service Schedules that are identified
herewith; and in 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 PICK.
ACCEPTED and AGREED:
PICKNET INC. IDT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. xxx
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Xxxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxx
Vice President Vice President
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