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EXHIBIT 10.10
CONFIDENTIAL TREATMENT REQUESTED
AGREEMENT FOR
1 PLUS SERVICES
THIS AGREEMENT is made and entered into this day of
between
Colorado River Communications Inc. ("CRC")
4275 East Sahara, Suite 6
Las Vegas, Nevada 89104
and
Maxxis Telecom, Inc. (MTI)
1080 Holcomb Bridge Rd.
Building 100, Suite 135
Roswell, Georgia 30076
WITNESSETH:
WHEREAS, CRC is in the business of providing telecommunications
services and specifically desires to sell Services to hotels, motels, health
care facilities, educational entities, military bases, resort rental
condominiums, as well as business and individual consumers;
WHEREAS, MTI is in the business of marketing telecommunications
services to users and specifically desires to use CRC's Services;
NOW, THEREFORE, in consideration of the material covenants and
agreements contained herein, the parties do hereby agree as follows:
1. APPOINTMENT OF AGENTS
CRC hereby appoints MTI as an Independent Agent for long distance
telephone service, specifically CRC Services ("Services") to those facilities
identified by MTI.
2. TERM AND TERMINATION
The initial term of this Agreement shall be three (3) years from the
date first written above provided however, MTI may terminate this Agreement in
the event of a material breach
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of the Agreement by CRC. Such termination will be effective thirty-five (35)
days after written notice is mailed by Certified Mail in a properly addressed
envelope to the other party. In the event of termination of this Agreement by
either party, CRC agrees to continue payments hereunder for so long as CRC is
supplying service to properties under contract with MTI. Further, at the end of
the initial term, CRC agrees to extensions of this Agreement as negotiated
between the Parties.
3. SERVICES OFFERED
The Service shall consist of receiving, processing, and completing
when possible 1 + and 800 calls originating from MTI customer locations. The
calls shall be validated, billed, and revenue collected by CRC. Commissions
shall be paid to MTI as per Schedule A.
The services shall be provided only in those areas where permitted by
any regulatory agency having jurisdiction, and where CRC is certified to do
business.
CRC will endeavor to supply quality Service, equal or better than that
offered by its major competitors. Service, operator performance and response
time will be within acceptable industry standards. CRC will use its best
efforts to keep the Service operational twenty-four hours a day, seven days a
week, fifty-two weeks a year.
4. SOLICITATION OF SERVICE
All contracts and other property rights acquired by MTI in pursuit of
its rights or obligations hereunder will be and will remain the property of
MTI. MTI will obtain a signed Letter of Agency from each location to which
Service is to be provided and deliver a copy of it to CRC.
5. PROCESSING OF ORDERS
MTI shall submit all service data and requirements for Service to CRC
by means agreeable to both parties. Faxed information, followed by confirming
mail delivery, are acceptable to both parties. CRC will use all reasonable
efforts to promptly process the MTI orders. CRC will promptly notify MTI of any
and all reasons for inability to process the MTI orders on a timely basis (when
processing and/or installations may exceed 15 working days). CRC will respond
within thirty (30) days of submission of the order as to whether it will accept
or reject the order.
6. LIMITATIONS OF LIABILITY
CRC's liability to an end user or site owner with respect to providing
the Service shall be as set forth in the CRC tariffs. CRC's liability for its
acts or omissions to end users or site owners with respect to its performance
of the non-tariffed terms and conditions of this Agreement shall be limited to
direct damages caused by its sole negligence, and will not include
consequential, incidental, special, or indirect loss or damage. CRC shall in no
event
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be liable to any person or entity marketing or using the Service supplied under
this Agreement, for loss of time, inconvenience, consequential, or indirect
damages regardless of the basis for such action or claim. CRC's liability shall
be limited to direct damages caused by its sole negligence.
7. REGULATORY REQUIREMENTS
Performance of this Agreement by the parties is subject to all
applicable existing and future laws, rules and regulations of any duly
constituted governmental authority having jurisdiction, and is contingent upon
the obtaining and continuance of such approval, consents, governmental
authorizations, licenses and permits as may be required or deemed necessary for
the Agreement by the Parties hereto. The Parties shall obtain and maintain such
approvals, consents, authorizations, licenses and permits as may be necessary
to institute and continue agency services as contemplated by this Agreement. In
the event that a regulatory authority with jurisdiction over the subject matter
of this agreement takes any action which affects CRC's ability to provide
Service, CRC shall have the right to redirect intrastate calls to another
inter-exchange carrier, or terminate the Service in the particular state. In
the event calls are redirected to another inter-exchange carrier, no
commissions or revenues will be paid to MTI with respect to such calls. Agent
agrees to require customer(s) subscribing to the Service to promptly display
notice of CRC provided Service. CRC will furnish appropriate notice to be
distributed by MTI to its customers using the Service. MTI agrees not to block
or cause to be blocked access to carriers other than CRC as required by law.
8. COMPLIANCE
MTI hereby certifies to CRC that MTI is in compliance with any and all
local, state, and federal regulations as to pertain to supplying MTI customers
with the Service including, but not limited to, rates, locations surcharges,
and end user notification i.e. tent cards, and contract language. CRC agrees to
supply the necessary tent cards.
9. INDEMNIFICATION
MTI will protect, indemnify and hold harmless CRC, its directors,
officers, employees and agents, from any and all claims, costs and expenses,
including reasonable attorney's fees, arising from Agent's performance under
this agreement.
CRC will protect, indemnify and hold harmless MTI, its directors,
officers, employees, and agents, from any and all claims, costs and expenses,
including reasonable attorney's fees, arising from CRC's performance under this
Agreement.
10. GENERAL RELATIONSHIP
Nothing in this Agreement will be construed to imply a joint venture,
employer-employee relationship, and MTI will have no right, power or authority
to create any obligation, expressed or implied, on behalf of CRC.
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11. ASSIGNMENT AND SUBCONTRACTING
MTI may not assign any of its rights, and no obligation of MTI may be
assumed by any entity other than MTI without prior written consent of CRC. This
Agreement may be assigned by CRC in the event of a change of control of CRC,
however all terms and conditions of this Agreement will remain in effect.
12. NON- WAIVER
No delay or failure of either party in exercising any rights under
this Agreement, and no partial or single exercise thereof, will he deemed to
constitute a waiver of such right or other rights thereunder.
13. HEADINGS
Headings are inserted for convenience and will not be used in the
construction or interpretation of any Article in this Agreement.
14. GOVERNING LAW
This Agreement will be construed and enforced in accordance with, and
the validity and performance will be governed by the laws of the state of
Nevada and it is agreed that any action or suit based on the Agreement must be
brought in the City of Las Vegas, Nevada.
15. ENTIRE AGREEMENT
This Agreement sets forth the entire Agreement of the parties with
respect to the subject matter hereof, and may not be altered or amended except
in writing signed by both parties.
COLORADO RIVER COMMUNICATIONS, CORP.
Signature: /s/ Alex McCarty
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Title: President
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Date: 2/20/97
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MAXXIS TELECOM, INC.
Signature: /s/ James W. Brown
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Title: Chief Executive Officer
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Date: 2/20/97
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SCHEDULE A CRC-MTI AGREEMENT
Billing Units: Full Minutes for all travel card services, sixty second minimum
with six second billing thereafter for all 1-Plus services.
Billing Agents: LEC's (local exchange carriers)
RATES:
Interstate: $***
Intrastate: $*** (All but *** states)
$*** (*** states)
800 Inbound: $***
Intrastate: $***
Special Intrastate: $***
USA Enhanced feature travel card: $***
No feature travel card: $***
Monthly fees:
CRC/FCC access: $***
Maxxis pass through fee: $***
A ***% bad debt holdback is applied to gross billing before commission
is paid, Plus all taxes and any State or Federal imposed charges.
COMMISSION:
Monthly Billing Commission
*** to $*** ***%
$*** to *** ***%
$*** and over ***%
Other:
1. CRC acknowledges that you own the customer base when monthly
revenues reach $*** per month. If this is not reached, the
customer base reverts to you after *** of service on CRC if a
minimum monthly billing of $*** is maintained for ***.
2. At *** of monthly billing, CRC will establish Sub carrier
identification for Maxxis.
3. CRC requires a *** notice before you can move any customer to
another carrier, with the exception as provided in this
contract of failure of CRC to perform.
4. CRC agrees to allow a *** ramp up period at the ***%
commission level.
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*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.