EXHIBIT 10.15
CARRIER SERVICES AGREEMENT
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THIS AGREEMENT by and between TresCom U.S.A., Inc. a Florida Corporation
with its principal place of business located at TresCom International, Inc., 200
East Broward Boulevard, Fort Lauderdale, Florida 33301 ("TresCom") and
International Telephone Company a Florida Corporation with its principal place
of business located at 110 East Broward Blvd. - Suite 610, Fort Lauderdale, FL
33301 ("Customer").
RECITALS
TRESCOM is in the business of providing switched and dedicated,
international telecommunications services. Customer desires to purchase, and
TRESCOM desires to sell to Customer, such services, in accordance with the
terms and conditions set forth in this Agreement.
ACCORDINGLY, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto mutually agree as follows:
ARTICLE 1
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PROVISION OF SERVICES
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1.1 PURCHASE AND SALE OF SERVICES. Subject to the terms and
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conditions of this Agreement and, through incorporation by reference, the terms
and conditions of TRESCOM's Tariff on file with the Federal Communications
Commission ("FCC") and any changes thereto ("Tariff"), Customer agrees to
purchase from TRESCOM and TRESCOM agrees to sell to Customer, switched,
international telecommunications services to the points and at the rates set
forth in Schedule 1.1 hereto ("Services"). If there is any conflict or
inconsistency between any of the terms and conditions of this Agreement and any
of the terms and conditions of the Tariff, the terms of the Tariff shall
control.
1.2 REPRESENTATION. TRESCOM represents to Customer that it has and will
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maintain during the term of the Agreement all licenses, approvals and other
authorizations necessary or appropriate to provide the Services under this
Agreement.
1.3 RESALE OF SERVICES. All Services provided under this Agreement are
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provided for resale to Customer's subscribers. Customer is solely responsible
for billing and collection from its subscribers. Customer is solely responsible
for obtaining and maintaining all licenses, approvals and other
authorizations necessary or appropriate for the resale of Services to its
subscribers. Customer represents to TRESCOM that it has and will maintain during
the term of this Agreement all such licenses, approvals and authorizations.
ARTICLE 2
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TERM AND TERMINATION
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2.1 TERM. This Agreement shall commence on June 20th, 1996 (the
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"Effective Date") and shall continue for one (1) year from the "Effective Date."
This Agreement shall automatically
continue beyond the Termination Date unless terminated by either party upon
thirty (30) days prior written notice or otherwise terminated in accordance with
the terms of this Agreement.
2.2 TERMINATION. This Agreement shall terminate prior to the expiration
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of its then current term upon the happening of any of the following events:
2.2.1 A material breach of this Agreement by either party and the
breaching party fails to cure the breach within thirty (30) calendar days after
notice of the breach from the nonbreaching party.
2.2.2 Notwithstanding the foregoing Section 2.2.1, a failure by
Customer to pay any amounts due to TRESCOM under this Agreement after ten (10)
calendar days from the due date, upon notice of nonpayment from TRESCOM and
failure of Customer to pay the amount due within five (5) calendar days
thereafter.
2.2.3 Either party ceases doing business as a going concern, makes
an assignment for the benefit of creditors, admits in writing its inability to
pay debts as they become due, files a voluntary petition in bankruptcy, is
adjudicated bankrupt or insolvent, seeks reorganization, arrangement,
composition, adjustment, liquidation, dissolution or similar arrangement under
any statute, law or regulation or, consents to or acquiesces in the appointment
of a trustee, receiver, or liquidator for all or any substantial part of its
assets or properties, or its shareholders attempt to dissolve or liquidate.
2.2.4 A petition in bankruptcy is filed against either party or,
without the party's consent or acquiescence, a trustee, receiver or liquidator
of it or of all or any substantial part of its assets and properties is
appointed.
2.2.5 Immediately upon a determination by any governmental authority
with jurisdiction over the parties that the provision of the Services under this
Agreement is contrary to existing laws, rules or regulations.
2.2.6 Upon thirty (30) days' prior written notice that in the
reasonable judgment of TRESCOM the passage or adoption of any law, rule or
regulation will make it materially more expensive or difficult to provide the
Services under this Agreement.
2.2.7 Notwithstanding the provisions of Section 3.5 below, Customer
does not meet the monthly minimum usage commitment within three (3) months of
this Agreement and for each succeeding month for the term of this Agreement.
2.2.8 During the first ninety (90) days of Services, Customer may
terminate without cause. After such ninety (90) day period, if TRESCOM fails to
provide the Services to customer in accordance with industry standards, the
Customer shall notify TRESCOM in writing of its concerns and allow a reasonable
amount of time for TRESCOM to resolve such Services issues. If issues remain
unresolved after a thirty (30) day period, then Customer may terminate the
Agreement.
2.2.9 By the mutual consent of the parties.
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2.3 CONSEQUENCES OF EXPIRATION OR TERMINATION. Upon the expiration or
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termination of this Agreement for any reason, TRESCOM shall immediately cease
providing Services to Customer. All amounts due to TRESCOM from Customer shall
become due and payable immediately upon such expiration or termination. In
addition, the non-breaching party shall have any other rights as are available
in law or equity. Notwithstanding the expiration or termination of this
Agreement for any reason, the provisions of Articles 4, 5, and 6 shall
continue to apply.
ARTICLE 3
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PAYMENT TERMS
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3.1 INVOICING. TRESCOM shall invoice all Service charges, as set forth on
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Schedule 1.1, on a monthly basis. Payment is due upon receipt of invoice.
3.1.1 Invoices shall be provided on magnetic tape or computer floppy
disk, with all necessary usage data to permit Customer to bill its subscribers.
3.1.2 Payment of each invoice shall be in U.S. currency either by wire
transfer or in accordance with instructions provided to Customer by TRESCOM.
3.2 TAXES. The prices in this Agreement do not include any applicable
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federal, state, or local taxes. Unless Customer is exempt, Customer shall pay
such taxes upon receipt of an itemized invoice. Such taxes, duties and charges
shall be separately stated on the invoice and shall be paid directly to TRESCOM
at the same time as all other charges set forth on the invoice. If Customer
claims any exemption from such taxes, it shall provide TRESCOM with a valid tax
exemption certificate or other evidence reasonably satisfactory to TRESCOM that
Customer is not subject to such taxes, duties or charges.
3.3 PAYMENT SECURITY. Customer is required to place a security deposit of
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$_______ with TRESCOM prior to TRESCOM providing Services.
3.3.1 TRESCOM may offset against the security any amount due under
this Agreement owed by Customer that is not paid when due. Upon the expiration
or termination of this Agreement for any reason, TRESCOM shall have the right to
offset against the security any amounts owed to it by Customer whether or not
such amounts are in dispute and shall remit the balance promptly to Customer,
without interest. Any disputed amounts shall be noticed and resolved in the
manner set forth in Section 3.4 below.
3.4 DISPUTED CHARGES. If Customer in good faith disputes the amount or
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appropriateness of a charge included in an invoice from TRESCOM, Customer shall
notify TRESCOM in writing and provide supporting documentation establishing such
claim. Short calls are deemed to be completed calls and are not subject to
dispute. Such documentation supporting disputed charges shall include a detailed
analysis showing the difference between the specific invoice amount and the
Customer's specific asserted amount. A summary of the disputed charges will not
be accepted. Customer shall further provide all information reasonably
requested by TRESCOM including, but not limited to, CDR's to resolve the
dispute. Such notification shall not relieve Customer of the obligation to make
all payments, including the amounts disputed, by the due date as set forth in
this Agreement. Any resolutions made by TRESCOM in favor of Customer will be
credited to Customer's next invoice.
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Failure to contest a charge within forty-five (45) days of the date of the
invoice shall create an irrebuttable presumption of the correctness of the
charge.
3.5 MINIMUM USAGE. Customer will ramp up to $________ in Services per
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month within ninety (90) days of this Agreement; after the fourth month and for
each month during the term of this Agreement thereafter, Customer will utilize
$____ in Services per month. If Customer fails to satisfy the monthly minimum,
Customer shall be subject to an increase in rates charged at the rate of $_____
for each minute less than the monthly minimum not utilized by Customer. TRESCOM
shall have the right, upon seven (7) days, prior written notice to Customer, to
change the amount of such charge set forth in Schedule 1.1 to reflect documented
changes in TRESCOM's costs. Upon receipt of such notice, Customer shall have the
option of terminating this Agreement by delivery of a written notice to TRESCOM
within such 7-day period. If Customer has not terminated this Agreement within
such 7-day period, the new charges shall apply from the first day of the billing
week immediately following the expiration of the 7-day period.
ARTICLE 4
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LIABIILITY
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4.1 SERVICE INTERRUPTIONS AND OUTAGES. TRESCOM shall not be liable for
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interruptions or outages in the provision of Services to Customer caused by or
resulting from any act of God, flood, earthquake, storm, lightning, fire
epidemic, war, outbreak of hostilities (whether or not war is declared), riot,
strikes or other labor unrest, civil disturbance, sabotage, mechanical failures,
fiber or cable cut, accidents, defects in transmission, expropriation by
governmental authorities, interruptions by regulatory or judicial authorities or
other acts or events that are outside the reasonable control of TRESCOM. In the
event of interruptions or outages of Services as a result of mechanical
failures, fiber or cable cut, accidents, defects in transmission or
interruptions by regulatory or judicial authorities that are caused by the acts
or omissions of TRESCOM or its representatives, TRESCOM's liability shall be
limited to a reduction of Customer's monthly minimum requirement or any other
recurring charge pro rata of the number of days of interruption or outages of
Services during such month.
4.2 DAMAGES. In no event will TRESCOM be liable for indirect,
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consequential, special, incidental or punitive damages, or lost profits,
revenue, customers, goodwill or opportunity, of any kind whatsoever, resulting
from a breach of this Agreement.
4.3 WARRANTY. TRESCOM WARRANTS TO CUSTOMER ONLY THAT IT WILL PROVIDE THE
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SAME QUALITY OF LONG DISTANCE SERVICE IT PROVIDES TO ITS OTHER CUSTOMERS WHICH
SHALL EITHER MEET OR EXCEED INDUSTRY STANDARDS.
4.4 FRAUDULENT CALLS. TRESCOM shall not be liable for any fraudulent
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calls processed by TRESCOM and billed to Customer's account. TRESCOM shall
notify Customer promptly of any fraudulent calling of which TRESCOM has actual
knowledge, it being understood that TRESCOM is under no obligation to
investigate the authenticity of calls charged to Customer's account. However,
the parties agree that any fraudulent calls billed to Customer must originate
from telephones served by Customer.
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ARTICLE 5
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CONFIDENTIALITY
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5.1 CONFIDENTIALITY. During the term of this Agreement, the parties may
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disclose to each other certain "proprietary" and/or "confidential" information.
The parties desire to assure the confidential and proprietary status of such
information which may be disclosed to each other and therefore for themselves,
their subsidiaries and their affliates, agree as follows:
5.1.1 All information disclosed shall be deemed to be confidential and
proprietary. All information contained in this Agreement, including Schedule
1.1 hereto, as well as all traffic volume and distribution information and rate
information of TRESCOM given to or learned by Customer in connection with this
Agreement shall be considered Proprietary, information without further act of
either party.
5.1.2 Each party agrees to use the Proprietary Information received
from the other party only for the purpose of this Agreement and shall not be
reproduced in any form or orally communicated except as required to accomplish
the intent of this Agreement.
5.1.3 The receiving party shall provide at a minimum the same care to
avoid disclosure or unauthorized use of the Proprietary Information as it
provides to protect its own proprietary information. It is agreed that all
Proprietary Information shall be retained by the receiving party in a
secure place with access limited to only such of the receiving party's
employees or agents who need to know such information for purposes of this
Agreement.
5.1.4 All Proprietary Information shall remain the property of the
disclosing party, shall be used by the receiving party only for the purpose
intended and shall be returned to the disclosing party or destroyed after the
receiving party's need for it has expired or upon the request of the disclosing
party, and, in any event, upon termination of this Agreement.
5.1.5 Each party agrees not to reveal the terms of this Agreement to
any third party except as contemplated by this Agreement or unless required by
law, provided that any written information describing the relationship of the
parties that one party desires or is obligated to disclose shall first be
disclosed to the other party which shall have an opportunity to object to such
disclosure.
5.2 USE OF NAME. Each party agrees that, without the other party's written
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consent, it will not use the name, service marks or trademarks of the other
party or of any of its affliated companies in any advertising, publicity
releases or sales presentations. Neither party shall take any action that will
in any manner compromise the other party's registered trademarks or service
marks.
5.3 REMEDIES FOR BREACH. The parties agree that a breach or threatened
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breach of the terms of this Article 5 may result in irreparable injury to the
non-breaching party for which a remedy in damages would be inadequate. The
parties agree that in the event of such breach or threatened breach, the non-
breaching party shall be entitled to seek an injunction to prevent the breach
or threatened breach, and the breaching party hereby waives any defense that an
adequate remedy in law exists and acknowledges that such a breach or threatened
breach would result in irreparable injury to the non-breaching party.
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ARTICLE 6
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MISCELLANEOUS
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6.1 MISCELLANEOUS. This Agreement which includes Schedule 1.1: (a)
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constitutes the entire agreement of the parties and supersedes all previous
agreements or understandings, whether oral or written; (b) may not be amended or
modified except by a written instrument signed by all parties; (c) is
binding upon and will inure to the benefit of the parties and their respective
successors, and permitted assigns; (d) may not be assigned without the prior
written consent of the other party; and (e) may be executed in duplicate
originals.
6.2 NOTICES. Any notices, consents or other communications required or
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permitted under this Agreement must be in writing and executed by the party
giving the notice or its authorized representative. Any such notice or
communication must be given, and will be deemed to have been duly given, if
either (a) hand delivered by independent courier or (b) mailed by U.S. first
class mail, postage prepaid, certified or registered, in either case to the
following addresses:
If to TRESCOM: If to Customer:
TresCom U.S.A., Inc. International Telephone Company
c/o TresCom International, Inc. 110 East Broward Boulevard., Suite 610
200 East Broward Boulevard, Suite 2100 Fort Lauderdale, Florida 33301
Fort Lauderdale, Florida 33301 Attn: Sean Thomas
Attn: Thomas Scott
Any notice given in the manner set forth in this section shall be deemed
delivered (i) at the time of the actual delivery, if hand delivered, (ii) five
(5) days after mailing, if mailed, or (iii) one (1) day after sending next day
delivery. Any party may change its address for the giving of notices by
notifying the other party of the change in the manner set forth in this
section. Any such change of address shall not be effective until five (5) days
after receipt of the notice by the other party, as determined under this
section.
6.3 WAIVER. The failure of any party to exercise any right or remedy
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under this Agreement shall not constitute a waiver of such right or remedy, and
the waiver of any violation or breach of this Agreement by a party shall not
constitute a waiver of any prior or subsequent violation or breach. No waiver
under this Agreement shall be valid unless in writing and executed by the
waiving party.
6.4 SEVERABILITY. If any provision of this Agreement is determined by a
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court or other governmental authority to be invalid, illegal or unenforceable,
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision of this Agreement. Further,
the provision that is determined to be invalid, illegal or unenforceable shall
be reformed and construed to the extent permitted by law so that it will be
valid, legal and enforceable to the maximum extent possible.
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6.5 HEADINGS. The headings used in this Agreement are included for the
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convenience of the parties for reference purposes only and are not to be used
in construing or interpreting this Agreement.
6.6 JURISDICTION AND VENUE. Any action brought to enforce this Agreement
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shall be brought in the federal or state courts of Florida, and the parties
acknowledge and agree that venue in Broward County, Florida shall be proper for
such action.
6.7 LITIGATION COSTS. The prevailing party in any proceeding brought to
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enforce the provisions of this Agreement or to seek a remedy for any breach
(including arbitration or an administrative proceeding) will be entitled to
receive its attorneys' and paralegal fees as well as court costs, litigation
expenses and other disbursements incurred in connection with such proceedings,
induding fees and expenses incurred in any appellate proceedings.
6.8 NO PARTNERSHIP. Nothing in this Agreement shall be deemed to create a
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partnership, joint venture or other relationship other than a vendor-customer
relationship.
6.9 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
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binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests, or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other party.
Notwithstanding the foregoing, TRESCOM may assign this Agreement at any time to
any person or entity affiliated with, controlled by, or under common control
with TRESCOM.
6.10 INDEMNIFICATION. Customer agrees to defend, hold harmless and
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indemnify TRESCOM from and against all claims, demands, actions, causes of
action, judgments, costs, attorney's fees and expenses of any kind or nature for
bodily injury, death, property damage, goodwill, or other damages of any kind
incurred by Customer, its employees, or third parties arising under this
Agreement due to Customer's negligence or willful misconduct.
IN WIINESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TRESCOM U.S.A., INC.
By: _______________________________________
Print Thomas Scott
_______________________________________
Title Vice President - Carrier Sales
_______________________________________
CUSTOMER:
By: ______________________________________
Print Sean Thomas
______________________________________
Title: Vice President - Operations
______________________________________
FEL # ______________________________________
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