Exhibit 10.21
[*] Designates material for which confidential treatment has been requested,
which material has been separately filed with the Securities and Exchange
Commission.
RECIPROCAL TELECOMMUNICATIONS AGREEMENT
AGREEMENT made this 3rd day of December 1996, by and between STAR Vending,
Inc. d/b/a STAR Telecommunications (hereinafter "STAR"), located at 223 East De
La Guerra Street, Santa Barbara, California 93101, a Nevada Corporation, and
PRIMECALL, INC. (hereinafter "CUSTOMER"), a Washington corporation, located at
1520 Eastlake Avenue East, Suite 205, Seattle, Washington 98102.
WITNESSETH
WHEREAS, STAR and CUSTOMER are in the business of providing
telecommunications services; and
WHEREAS, STAR desires to purchase telecommunications services from CUSTOMER
and CUSTOMER desires to purchase telecommunications services from STAR;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for good and valuable consideration, the parties agree as
follows:
1. Services
--------
(A) STAR agrees to furnish CUSTOMER and CUSTOMER agrees to purchase from
STAR, the telecommunications services set forth in Exhibit A attached hereto.
(B) CUSTOMER agrees to furnish STAR and STAR agrees to purchase from
CUSTOMER, the telecommunications services as set forth in Exhibit B attached
hereto.
(C) It is understood that all Services provided by the parties hereunder
are provided for resale by the other party to end users, customers or
subscribers.
2. Terms
-----
This Agreement shall commence on or about the 30th day of November 1996
(the "Commencement Date") and continue for a period of six (6) months from such
date. After the expiration of the initial term or any subsequent term, 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. This Agreement shall continue and remain in full force
and effect until canceled by either party upon notice as provided herein.
3. Rates
-----
(A) During the term of this Agreement, STAR shall charge for the
telecommunications services, and CUSTOMER shall pay for such services, that
amount as determined by using the rates set out in Exhibit A.
[INITIALS APPEAR HERE] Initials
----------------------
[INITIALS APPEAR HERE] Initials
----------------------
1
(B) During the term of this Agreement, CUSTOMER shall charge for the
telecommunications services, and STAR shall pay for such services, that amount
as determined by using the rates set out in Exhibit B.
(C) STAR 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 five (5) days' prior written notice.
4. Charges and Payment Terms
-------------------------
(A) STAR and CUSTOMER hereby acknowledge the charges for the provision
of Services will be billed as provided herein and that payment for such Service
shall be payable in U.S. dollars. For each month during the term of this
Agreement, STAR and CUSTOMER will provide the other party with an invoice for
Service provided during the previous month. The invoice amounts will be due and
payable from both parties within twenty (20) days after the invoice date (the
"Due Date"), which shall be the last date of the previous month's billing cycle.
Late payments will be assessed a late payment penalty of one and one-half
percent (1.5%) per month on the delinquent balance of any undisputed Service
usage not paid by the Due Date. Payments shall be made by wire transfer or such
other methods as may be agreed by the parties. Nothing herein shall be construed
to constitute a waiver of either parties rights to declare a default by the
other party under this Agreement on account of delinquency, to terminate this
Agreement and to exercise any other rights under this Agreement or at law or in
equity.
(B) Should either STAR or CUSTOMER dispute any of the monthly charges
on the monthly 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 by paid in accordance with
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) All calls will be billed in six (6) second increments utilizing
Hardware Answer Supervision where available. All international calls, with the
exception of Mexico, will be billed in six (6) second increments subject to a
thirty (30) second minimum charge. Mexico calls will be billed in one (1) minute
increments.
(D) CUSTOMER and STAR shall at all times comply with the other party's
initial and continuing credit approval procedures and policies. Each party
reserves the right to withhold initiation and full implementation of services
under this Agreement pending initial satisfactory credit review and approval
thereof, which may be conditioned upon terms specified, including, but not
limited to, security for payments due hereunder in the form of a cash deposit,
guarantee, irrevocable letter of credit or other means. Upon request by either
party, at any time, the other party agrees to provide financial statements or
other indications of financial circumstances. As may be determined by either
party, in its sole discretion, at any time, if the financial circumstances or
payment history of the other party is or becomes unacceptable, the party
furnishing Services may require a new or increased deposit, guarantee or
irrevocable letter of credit, at such party's option, to secure the other
party's payments for the term of the Agreement. Failure of a party to provide
requested security shall permit the other party to immediately suspend Services,
without further notice or demand, until such time as requested security is
provided.
2
5. Warranty
--------
STAR 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. STAR 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 five (5) days of
receipt of such notice, where breach involves a failure to make payments when
due, and (ii) within twenty (20) days of receipt of such notice for all other
breaches;
(B) The adjudication of bankruptcy of either party under federal,
state or municipal bankruptcy or insolvency act, or the appointment of a
received 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 the
attached Service Schedules are computed exclusive of any applicable use, excise,
gross receipts, sales and privilege taxes, duties, fees and other taxes or
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. 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 customer 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
five (5) days prior written 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.
3
9. Liability; General Indemnity
----------------------------
(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 NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
THE LIABILITY OF STAR AND CUSTOMER, WITH RESPECT TO THE INSTALLATION (INCLUDING
DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION OR
RESTORATION OF ANY SERVICES 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 than STAR and
CUSTOMER shall have use of the Services, then STAR 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
Services.
10. Force Majeure
-------------
If either party's performance of this Agreement, or any obligations
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 or more said governments, or
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 restrictions 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
payment when due.
1. Notices
-------
All notices, demands, requests and other communications require or
permitted hereunder shall be in writing and shall be deemed to be delivered when
actually received, or, if earlier and regardless of whether actually received on
the day following the date of mailing via first-class U.S. mail or overnight
courier or facsimile, charges prepaid, to the last known place of business of
either party. Notices will be delivered as follows:
4
To STAR: Attention: Contracts Manager To CUSTOMER: Attention: Lisa Jenchel
STAR Vending, Inc. Company: PrimeCall, Inc.
223 East De La Guerra Street Address: 1520 Eastlake Ave. East,
Santa Barbara, CA 93101 Suite 205
Telephone: (805) 899-1962 Seattle WA 98102
Facsimile: (805) 899-2792 Telephone: (206) 328-1109 X201
Facsimile: (206) 328-7580
Billing Contact: Lisa Dobson, Director Billing Contact: Eric McKibben
Phone: (805) 899-1962 Address (if different):
Facsimile: (805) 899-2972 -------------
Same as above
------------------------------------
Phone & Facsimile:(206) 328-1109 X204
(206) 328-7580
12. No Waiver
---------
No term or provision of this Agreement shall be deemed waived and no
breach or defaults 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
terms or provisions 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
--------------
STAR and CUSTOMER agree to provide the Service specified hereunder
upon condition that the Services shall not be used for any unlawful purposes.
The provision of Service will not create a partnership or joint venture between
the parties or result in a joint communication service offering to any third
party.
16. Governing Law
-------------
This Agreement shall be, in all respects, governed by and construed
and enforced in accordance with the laws of the State of California, including
all matters of construction, validity and performance. Any action to enforce or
interpret the terms of this Agreement shall be instituted and maintained in the
Superior Court of the County of Santa Barbara, State of California. Both parties
hereby consent to the jurisdiction of such court and wave any objections to such
jurisdiction. In any action or proceeding arising out of this Agreement, the
party prevailing in such action shall be entitled to recover reasonable
attorneys' fees and costs.
17. Proprietary Information
-----------------------
5
(A) Confidential Information. The parties understand and agree that
------------------------
the terms and conditions of this Agreement, and documents referred herein
(including invoices to STAR for Services provided hereunder), communications
between the parties regarding this Agreement or the Service to be provided
hereunder (including price quote to STAR or CUSTOMER for any Service proposed to
be provided or actually provided hereunder) and all information regarding the
customers of STAR or CUSTOMER, as well as such information relevant to any other
agreements between the parties (collectively "Confidential Information"), are
confidential as between STAR and CUSTOMER.
(B) Limited Disclosure. A party shall not disclose Confidential
------------------
information unless subject to discovery or disclosure pursuant to legal process,
or to any other party other than the directors, officers and employees of a
party or agents 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.
Violation by party or its agents of the foregoing provision shall entitle the
non-disclosing party, at its option, to obtain inductive relief without a
showing of irreparable harm or injury and without bond.
(C) Press Release. The parties further agree that any press release,
-------------
advertisements or publication generated by a party regarding this Agreement, the
Service provided hereunder or in which the 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 provision of this Paragraph will
----------------------------
be effective as 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. Binding Effect
--------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns. Neither party
shall voluntarily, or by operation of law, assign, transfer, license, or
otherwise transfer all or any part of its right, duties or other interest in
this Agreement or the proceeds thereof (collectively "Assignment") without the
other party's written consent, which consent shall not be unreasonable withheld
or delayed. Any attempt to make an Assignment in violation of this provision
shall be null and void. Each party shall provide written notice to the other
party of any material change in ownership of either party. Should either party
fail to comply with the Assignment provisions, as contained in this paragraph,
then the party who failed to meet the terms of Assignment shall, at its sole
discretion, give the other party the option to either accept a party's assignee
or terminate this Agreement. No Assignment shall release either party of its
obligations hereunder.
19. General
-------
(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 hereunder.
6
(B) Interpretation. The words and phrases used herein shall have the
--------------
meaning generally understood in the telecommunications industry. This Agreement
shall be construed in accordance with its fair meaning and not for or against
either party on account of which party drafter this Agreement.
(C) Third Party Beneficiaries/Parties in Interest. This Agreement has
---------------------------------------------
been made and is made solely for the benefit of the Provider and Purchaser, and
their respective successors and permitted assigns. Nothing in this Agreement is
intended to confer any rights/remedies under or by reason of this Agreement on
any third party.
(D) Representation of Authority. Each party represents and warrants to
---------------------------
the other that the execution and delivery of this Agreement and the performance
of such party's obligations hereunder have been duly authorized and that the
Agreement is a valid and legal agreement binding on such parties and enforceable
in accordance with its terms.
(E) Further Assurances. The parties shall at their own cost and
------------------
expense execute and deliver such further documents and instruments and shall
take such other actions as may be reasonably required or appropriate to carry
out the intent and purposes of this Agreement.
(F) Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall constitute an original, but all of which shall
constitute one and the same instrument.
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 understanding 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 STAR and CUSTOMER.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
STAR VENDING, INC. d/b/a/ CUSTOMER: PRIMECALL, INC.
STAR TELECOMMUNICATIONS
By: [SIGNATURE APPEARS HERE] By: /s/ Alan Chin
---------------------------------- ----------------------------------
Printed Name: [NAME APPEARS HERE] Printed Name: ALAN CHIN
------------------------ ------------------------
Title: PRESIDENT Title: VP
------------------------------- -------------------------------
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S T A R TELECOM INTERNATIONAL TERMINATIONS
EXHIBIT A
C O U N T R Y code S T A N D A R D D I S C O U N T E C O N O M Y MIN. OF USE
-----------------------------------------------------------------------
AMERICAN SAMOA 684 [*] [*] [*]
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AUSTRALIA 61 [*] [*] [*]
-------------
AUSTRIA 61 [*] [*] [*]
-------------
BELGIUM 32 [*] [*] [*]
-------------
BRAZIL 55 [*] [*] [*]
-------------
CENTRAL AFRICAN REP. 236 [*] [*] [*]
-------------
CHINA 86 [*] [*] [*]
-------------
COLOMBIA 57 [*] [*] [*]
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DENMARK 45 [*] [*] [*]
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FINLAND 358 [*] [*] [*]
-------------
FRANCE 33 [*] [*] [*]
-------------
FRANCE (MONACO) 377 [*] [*] [*]
-------------
GERMANY 49 [*] [*] [*]
-------------
GREECE 30 [*] [*] [*]
-------------
INDIA 91 [*] [*] [*]
-------------
ISRAEL 972 [*] [*] [*]
-------------
ITALY 39 [*] [*] [*]
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KOREA 82 [*] [*] [*]
-------------
KUWAIT 965 [*] [*] [*]
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MALAYSIA 60 [*] [*] [*]
-------------
NETHERLANDS 31 [*] [*] [*]
-------------
NEW ZEALAND 64 [*] [*] [*]
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NIGERIA 234 [*] [*] [*]
-------------
NORWAY 47 [*] [*] [*]
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PHILIPPINES 63 [*] [*] [*]
-------------
PHILIPPINES (MANILA) [*] [*] [*]
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POLAND 48 [*] [*] [*]
-------------
SINGAPORE 65 [*] [*] [*]
-------------
SOUTH AFRICA 27 [*] [*] [*]
-------------
[*] CONFIDENTIAL TREATMENT REQUESTED
SPAIN 34 [*] [*] [*]
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BALEARIC IS. 34 [*] [*] [*]
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CANARY ISLANDS 34 [*] [*] [*]
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CUETA 34 [*] [*] [*]
-------------
MELILLA 34 [*] [*] [*]
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SWEDEN 46 [*] [*] [*]
-------------
SWITZERLAND 41 [*] [*] [*]
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TURKEY 90 [*] [*] [*]
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ZAIRE 243 [*] [*] [*]
-------------
ZIMBABWE 263 [*] [*] [*]
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AZERBAIJAN 994 [*] [*] [*]
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*** Billed in 30 seconds minimum, 06 seconds thereafter
PrimeCall, Inc.
FOB: Los Angeles, CA
[*] CONFIDENTIAL TREATMENT REQUESTED
PEAK OFF-PEAK
---------- ---------- ----------
MEXICO band 1 [*] [*]
----------
band 2 [*] [*]
----------
band 3 [*] [*]
----------
band 4 [*] [*]
----------
band 5 [*] [*]
----------
band 6 [*] [*]
----------
band 7 [*] [*]
----------
band 8 [*] [*]
---------- ---------- ----------
* * * Billed in one minute increments
All calls are rated on Pacific Standard Time.
The rates listed herein are subject to NON-DISCLOSURE. Disclosure of these
rates, or any information pertaining to said rates, to any party or parties
outside the employment of Purchaser will result in the withdrawal by Provider of
the disclosed rates.
Rates are subject to change with five (5) days' notice.
Rate decreases are effective as stated in Provider's written notice AND upon
receipt by Provider of Purchaser's signature on said notice. Without a duly
signed amendment notice, no credit will be issued for the differential between
decreased rates and Purchaser's current contract rates.
[*] CONFIDENTIAL TREATMENT REQUESTED
9
EXHIBIT B
CUSTOMER'S CUSTOM PRICING TO STAR
---------------------------------
Country Price
------------------------------
BELIZE [*]
EGYPT [*]
GABON REPUBLIC [*]
GEORGIA [*]
GHANA [*]
IRAN [*]
IVORY COAST [*]
MARSHALL ISLANDS [*]
PAKISTAN [*]
PANAMA [*]
ST. HELENA [*]
SURINAME [*]
TOGO [*]
FOB: Los Angeles, CA
[*] CONFIDENTIAL TREATMENT REQUESTED
10