* Certain information omitted and filed separately with
the Commission pursuant to a confidential treatment
request under Rule 406 of the Commission.
AN AGREEMENT
BETWEEN
ACCESS POWER, INC.
AND
Ldt Net Com, Inc.
IP TELEPHONY SERVICES AGREEMENT
THIS AGREEMENT is made as of this the 2nd day of October, 1998 (the
"Effective Date"), by and between
ACCESS POWER, INC. a Florida corporation located at 10033 Sawgrass Drive
West, Suite 100, Ponte Vedra Beach, Florida 32082 ("Company"); and
LDT NET COM, INC., a Florida corporation located at 679 Third Street
South, Jacksonville Beach, Florida 32250, ("Agent").
RECITALS
A. The Company provides certain Internet Telephony services and
Services, including those listed in Exhibit A. ("Services"). This
Agreement pertains only to Services as listed in Exhibit A and Exhibit B
and not to any other Services and/or services provided by the Company.
B. The Company and Agent desire that Agent be authorized to act as a
non-exclusive independent distributor of the Services under the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. APPOINTMENT AND TERM
1.1 TERM: The Company hereby appoints Agent as a distributor for
Access Power Internet Telephony Origination and Termination
Services as described in Exhibit B for a period of five (5) years
from the Effective Date (the "Initial Term"). This Agreement
shall automatically renew for successive one (1) year terms
unless terminated pursuant to Section [4].
1.2 GRANT OF RIGHTS: The Company grants Agent a nonexclusive,
nontransferable right to distribute the Services. Distribution
of the Services shall begin when the Company has the equipment,
software and recordkeeping systems ready to support Agent and
Agent's customers.
1.3 MODIFICATIONS TO SERVICES AND AVAILABILITY: The Company may make
such changes in the design, production, or content of the
Services as the Company decides. The Company will provide notice
to Agent of any change under this section.
2. AGENT OBLIGATIONS
2.1 APPROVALS; PERMITS: Agent shall be responsible for obtaining any
and all required regulatory approvals for importation, marketing
and distribution of the Services. Without limitation, Agent
shall indemnify the Company against all claims made by any
regulatory authority for sales of Services under this Agreement.
-2-
2.2 MARKETING ACTIVITIES: Agent shall use all reasonable efforts to
advertise and promote the sale of the Services. The Company
shall use all reasonable efforts to assist Agent in such
activities.
2.3 REPRESENTATION: Agent agrees to conduct business in a manner
that reflects favorably at all times on Services and the good
name, good will and reputation of the Company and avoid
activities or practices which are or might be detrimental to the
Company.
2.4 LEGAL COMPLIANCE: Agent will comply with all applicable
international, national, regional and local laws and regulations
in performing its duties hereunder and in any of its dealings
with respect to the Company. If any approval with respect to
this Agreement, or the notification or registration thereof, will
be required at any time during the term of this Agreement with
respect to giving legal effect to this Agreement in Indonesia, or
with respect to compliance with exchange regulations or other
requirements so as to assure the right of remittance abroad of
U.S. Dollars pursuant to Section [3] hereof or otherwise, Agent
will take whatever steps may be necessary in this respect, and
any charges incurred in connection therewith will be borne by
Agent.
3. ORDERS; FEES; PAYMENT TERMS
3.1 PURCHASE ORDERS: Agent shall submit purchase orders for
prepaid accounts directly to LDT either via electronic mail, fax
or postal service. Purchase order must specify number of
accounts by face value and retail price. For example, Agent may
order 25,000 US $20 accounts @ US$0.50 Per Minute, 50,000 US$10
accounts @ US$0.50 Per Minute, and so on. Retail amount must be
supplied in order to perform accounting and recordkeeping
functions for each individual accountholder. Agent may order
prepaid accounts at any time, but must order according to Minimum
and Maximum Monthly Call Volumes as described in Exhibit B
3.2 FEES/TERMS: Agent will be charged on a prepaid basis for
usage of the Company Internet Telephony Origination and
Termination Services as described in Exhibit A.
3.3 PIN/ACCOUNT DELIVERY: PIN Numbers and accounts will be delivered
to Agent in a mechanized format to be defined at a later date
prior to availability of services. The Company will furnish
Agent such mechanized file via e-mail no later than ten working
days after receipt of valid Purchase Order. Accounts and
associated PINS become activated within two business days upon
receipt of payment.
3.4 HOURLY PROGRAMMING CHARGE: If, due to specific or unique needs
of Agent, the Company incurs hourly programming costs, such
programming costs will be billed at an hourly rate as set forth
in Exhibit A. Agent will be notified in advance of any such work
to be done, the reason therefore, and an estimate of the number
of hours that will be necessary to complete the work.
-3-
3.5 INTEREST ON OVERDUE PAYMENTS: Any payment or part of a payment
that is not paid when due, as set forth in Exhibit A, shall bear
interest at the rate of 1.5% per month from its due date until
it is paid in full.
3.6 SUSPENSION OF SERVICE: The Company reserves the right to
suspend Services to Agent and Agent's customers, if any payment
is greater than 7 days past due, until such time as Agent has no
outstanding overdue amounts owed to the Company.
3.7 U.S. CURRENCY: All references herein to dollars, cents,
costs, or monetary amounts shall be in U.S. Currency. Agent
shall bear the cost of any conversion to U.S. currency.
3.8 TAXES: The fees listed in this Agreement do not include
additional taxes that may be applicable to the sale, distribution
or licensing of the Services. If the Company is required to pay
taxes (whether federal, state or local) based on the Services
provided under this Agreement, then such tax shall be billed to
and paid by Agent. The additional tax charges will be billed to
Agent in the exact amount of the additional taxes required
without any mark-up by the Company. Any such additional tax
charges must be directly measured and based upon Agent purchases
or usage of Services and not upon infrastructure costs of the
Company. This provision explicitly does not include income taxes
based upon revenues generated by the Company.
3.9 CUSTOMS AND DUTY CHARGES: Agent shall also be responsible to
make payment of any customs, duties, withholding taxes, and other
fees which may be levied by reason of importation to or use of
Services in Indonesia.
3.10 CHANGE OF PRICES: The Company reserves the right to increase
from time to time the rates for the Services provided under this
contract relating to charges imposed on the Company stemming from
an order, rule or regulation of the Federal Communications
Commission or a court of competent jurisdiction, concerning: (i)
payphone use charges, (ii) "Universal Service Fund (USF), and
(iii) presubscribed interexchange carrier charges ("PICCs").
Additionally, currency fluctuation can result in an increase in
the cost to provide Services in Indonesia, and the Company
reserves the right to increase the rates for the Services
provided under this contract to reflect such increases. The
Company will make rate adjustments under this provision as
necessary.
3.11 PRICE GUARANTEE. The Company guarantees the given price to
Agent for a purchase order as described in section 3.1 for a
period of 90 days from date of activation.
4. TERMINATION
4.1 TERMINATION FOR CAUSE: Notwithstanding anything provided for
elsewhere in this Agreement, this Agreement may be terminated by
either party upon provision to the other party of thirty (30)
-4-
days prior written notice upon the occurrence of one of the
following events:
(a) either party commits a fundamental breach of the
Agreement and fails to cure such breach within thirty (30) days
after receipt of written notice; or
(b) either party commits an act of bankruptcy, becomes
insolvent, enters into any arrangement for the benefit of its
creditors, goes into liquidation or winding-up receivership
proceedings against it have been initiated and any of these have
not been dismissed or canceled within sixty (60) days.
4.2 RESPONSIBILITIES UPON TERMINATION: Upon termination of this
Agreement, Agent shall immediately cease all of its distribution
and marketing activities for the Services and use of Intellectual
Property relating to the Services, and promptly pay in full all
outstanding amounts due to the Company.
5. CONFIDENTIALITY
Agent acknowledges that in the course of performing its obligations
hereunder it may receive information which is confidential and
proprietary to the Company. Agent agrees not to use such information
except in performance of this Agreement and not to disclose such
information to third parties. Agent agrees to sign a commercially
reasonable non-disclosure agreement at the request of the Company prior
to receipt of information that the Company deems confidential.
6. NON-COMPETITION
6.1 COMPETITOR REPRESENTATION: Agent shall not distribute Services
of nor represent any direct competitor of the Company during the
term of this Agreement nor for a period of 60 days following
termination of this Agreement. For the purposes of this clause,
a direct competitor is defined as an Internet Telephony Service
Provider providing like services to and from Indonesia.
6.2 INTELLECTUAL PROPERTY: Agent shall not utilize any Intellectual
Property of the Company or any Confidential Information of the
Company for the purpose of competing, directly or indirectly,
with the Company.
7. PROMOTIONS AND TRADEMARKS
7.1 ADVERTISING AND MEDIA: Agent shall not use the name of the
Company or any of the Company's trademarks, trade names, logos,
designations or copyrights in any advertising, public relations
or media release without the prior written consent of the
Company.
-5-
8. INDEMNIFICATION AND WARRANTY
8.1 RECIPROCAL INDEMNIFICATION: Agent agrees to indemnify the Company
(including paying all reasonable attorneys fees and costs of
litigation) against and hold the Company harmless from any and all
claims by an other party resulting from Agent's acts, omissions or
misrepresentations, regardless of the form of action. The Company
agrees to indemnify Agent (including paying all reasonable attorneys
fees and costs of litigation) against and hold Agent harmless from
any and all claims by an other party resulting from Agent's acts,
omissions or misrepresentations, regardless of the form of action.
8.2 CUSTOMER INDEMNIFICATION: Notwithstanding paragraph 9.1, Agent
agrees to indemnify the Company against any and all claims by
Agent and Agent's customers for incidental, consequential, indirect,
or special damages of any nature, including, without limitation, lost
business profits or opportunities.
8.3 AGENT REPRESENTATION: Agent represents and warrants that it has
tested the Services prior to entering into this Agreement and
is aware that the sound quality is not currently comparable to that
of standard telephony services and that the Services and use thereof
is subject to potential technical interference related to the
Internet which is beyond the control of the Company. Agent further
warrants that it is aware that the Services and/or use thereof may be
suspended in the future as a result of changes in the Internet's
technical capacity or the regulatory environment surrounding the
provision of Internet based telephony services, in which case, the
Company will not be considered to be in breach of this Agreement.
8.4 WARRANTY. The Company will use all reasonable efforts to maintain
overall network quality. The quality of the services provided
hereunder shall be consistent with other IP telephony industry
standards, government regulations and sound business practices.
9. MISCELLANEOUS
9.1 RELATIONSHIP: It is acknowledged and agreed that the relationship of
Agent to the Company created under this Agreement is that of an
independent contractor and not an employee. Neither party is
authorized or empowered to create any contract or obligation on
behalf of, binding upon, or in the name of the other party.
9.2 ASSIGNMENT: Agent shall not transfer or assign this Agreement or
any part hereof without the Company's prior written consent.
9.3 GOVERNING LAW: This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Florida and be subject
to jurisdiction of the courts thereof.
9.4 ENTIRETY: This Agreement, inclusive of the Exhibit(s) hereto,
constitutes the entire Agreement between the parties as to the
subject matter hereof. No amendment or modification of this
Agreement will be valid unless set forth in writing referencing
this Agreement and executed by an authorized representative of
each party.
-6-
9.5 WAIVER: The failure by either party on any occasion to enforce
any provision of this Agreement will in no way prevent the
enforcement of that provision or any provision on any future
occasion.
9.6 SEVERABILITY: In the event that any provision of this Agreement
is held unenforceable by a court or tribunal of competent
jurisdiction, such provision will be enforced to the maximum
extent permissible and the remaining portions of this Agreement
shall remain in full force and effect.
9.7 FORCE MAJEURE: Neither party shall be liable to the other for
damages caused which result from events beyond its control,
including, but not limited to, governmental order or regulation
(unless such event occurs as a result of an action of such party,
its affiliates, or subsidiaries), war, terrorism, difficulty in
acquisition of components, fire, flood, earthquake, typhoon,
hurricane, tsunami or tornado.
9.8 CHOICE OF LANGUAGE: The original of this Agreement has been
written in English. Agent waives any right it may have under the
laws or regulations of or within Indonesia to have the Agreement
reproduced in any other language.
9.9 HEADINGS: The paragraph headings contained herein are for
reference only and shall not be considered as substantive parts
of this Agreement.
9.10 NOTICES: Except as otherwise provided in this Agreement, all
notices required under this Agreement shall be sent by certified
or registered mail, overnight courier, or hand delivery, and
shall be addressed as specified below:
If to ACCESS POWER: If to AGENT:
Attn: Glenn Smith Attn: Paul Rosenbloom
Access Power, Inc. Ldt Net Com, Inc.
10033 Sawgrass Dr. W. Ste 100 679 Third Street South
Ponte Vedra Beach, FL 32082 Jacksonville Beach, Florida 32250
Tele: 904-273-2980 Tele: 904-247-1099
Fax: 904-273-6390 Fax: 904-247-3963
e-mail: Glenn@accesspower.com e-mail:
Changes in these addresses shall be valid if notice of such
change is given in writing to the other parties pursuant to this
paragraph.
-7-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year below written.
ACCESS POWER, INC. LDT NET COM, INC.
BY: _______________________ BY: __________________________
NAME _______________________ NAME: __________________________
TITLE: _______________________ TITLE: __________________________
DATE: _______________________ DATE: __________________________
-8-
EXHIBIT A
SERVICES LIST AND FEES
[*] Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Rule 406 of the
Commission.
-9-
EXHIBIT B
DEFINITION OF SERVICES; MONTHLY CALL VOLUMES AND ADDITIONAL AGENT
RESPONSIBILITIES; REIMBURSEMENT OF ONGOING TELECOMMUNICATION
CHARGES; REIMBURSEMENT OF INSTALLATION CHARGES
ACCESS POWER INTERNET TELEPHONY ORIGINATION AND TERMINATION SERVICES
The Company will provide origination of calls from the continental
United States and termination of calls to Jakarta, Indonesia using a
combination of Internet telephony and traditional telephony. Agent
customers will have access to Company Services from anywhere in the
continental United States via 800 number. Agent customer accounts
must identify themselves to the system via account number and PIN.
Account Number and PIN mechanized data files will be provided to
Agent upon valid receipt of Purchase Order as described in section
3.1. The Company will provide recordkeeping for each Agent customer
account and will accordingly decrement account balances based on
pricing described above. Valid Agent customer accounts (good Acct
Number, PIN and with available minutes on the account) will be routed
from the U.S. to Jakarta, Indonesia where the call is converted from
Internet protocol to traditional telephony via Internet telephony
equipment resident in Jakarta. The resultant call is completed to a
regular phone in the local Jakarta calling area.
Calls may be placed using the Service to destinations within
Indonesia and outside of Jakarta's local calling area. Such calls
will incur additional long distance charges from the local Jakarta
PTT. Agent is fully responsible for the establishment of such long
distance service within Jakarta and is fully responsible for payment
to the local PTT for such charges.
MINIMUM MONTHLY CALL VOLUMES
Beginning with the fourth month of availability of the Services,
Agent will be required to use a minimum 1,000,000 minutes of Services
at the price specified in Exhibit A.
MAXIMUM MONTHLY CALL VOLUMES
The Company requires sufficient lead-time to increase network
capacity to handle call volumes in excess of 120% of the Minimum Monthly
Call Volume. This time frame varies, but is generally between one to
three months and will be dependent largely upon the availability of local
Jakarta Internet access, Co-location facility and local loop access.
The Company monitors network usage and reserves the right to postpone the
fulfillment of or cancel a Purchase Order if network capacity will not
carry the load. If Agent wishes to increase Monthly Call Volumes in
excess of 120% of Minimum Monthly Call Volumes, Agent must do so in
increments of 250,000 minutes above the Minimum Monthly amount. Agent
must supply on a monthly basis a six month forecasting report estimating
the projected minutes carried by the Service over that period of time.
This report assists the Company in provisioning for capacity and
equipment needs.
-10-
ADDITIONAL AGENT RESPONSIBILITIES
In addition to all other terms mentioned in this Agreement, within
Indonesia, Agent will:
Acquire, contract and be financially responsible for procuring and
maintaining adequate bandwidth ("Internet Access") to service all of
Agents customers. Such bandwidth will initially be 1.5 megabits in
capacity in order to service the Minimum Monthly Call Volume, and
will be required to increase as call volumes increase.
Secure and maintain an Access Power approved co-location facility
including electricity, security and backup power.
Acquire, contract and be financially responsible for procuring and
maintaining connectivity to the local Jakarta PTT ("Local Loop").
Such connectivity will initially require four E-1s of capacity in
order to service the Minimum Monthly Call Volume, and will be
required to increase as call volumes increase.
REIMBURSEMENT OF ONGOING TELECOMMUNICATION CHARGES
Agent may submit approved expenses (local Internet access, Co-
location and Local Loop charges associated with the Services) for
reimbursement by the Company providing Agent orders and uses at least
1,000,000 minutes in a given month. Prior to the fourth month of
availability of the Services, Agent may submit approved expenses for
reimbursement on a pro-rated basis if minutes used in a given month
fail to meet the Minimum Monthly commitment of 1,000,000 minutes.
REIMBURSEMENT OF INSTALLATION CHARGES
Non-recurring charges that Agent incurs for the installation of
Internet Access, Co-location and Local Loop access will be fully
reimbursed by the Company after one complete month of operations.
-11-