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EXHIBIT 10.35
WORLDCOM NETWORK SERVICES, INC.
CLASSIC/TRANSCEND(TM) SWITCHED SERVICES
PROGRAM ENROLLMENT TERMS
These PROGRAM ENROLLMENT TERMS (the "PET") are made by and between
WorldCom Network Services, Inc. ("WORLDCOM") and Maxxis Communications, Inc.
("CUSTOMER") and are a part of their Telecommunications Services Agreement for
Switched Services. Capitalized terms not defined herein shall have the meaning
ascribed to them in the TSA, the Service Schedule or the applicable Rate and
Discount Schedule.
1. SERVICE TERM:
(A) The Service Term shall commence as of the Effective Date (as
described below) and shall continue for a period of thirty-six (36)
months (the "SERVICE TERM"). Upon expiration of the Service Term, the
Switched Services in question will continue to be provided pursuant to
the same terms and conditions as are then in effect (including without
limitation, the applicable rates, discounts and commitments, if any),
subject to termination by either party upon thirty (30) days prior
written notice to the other party. WorldCom will not be obligated to
accept any Service Request under this Agreement if Customer's initial
Service Request is (i) not submitted by Customer within thirty (30)
days of the Effective Date of this Agreement, and (ii) not subject to
a Requested Service Date within ninety (90) days of the Effective
Date.
(B) For purposes of this Agreement, the appropriate Effective Date
as determined below will be filled in by WorldCom where provided
above. If Customer has an existing switched services agreement with a
member of the WorldCom Group (as defined in Subsection 24(A) of the
TSA), the "EFFECTIVE DATE" will be the 1st day of the month following
the later of (i) twenty-one (21) days after this Agreement has been
fully executed by both parties, or (ii) Customer has received a
satisfactory credit review and approval from WorldCom's Credit
Department pursuant to Subsection 6(A) of the TSA, and all security
documentation, if any, required by WorldCom has been properly executed
and delivered to WorldCom (collectively, the "CREDIT REVIEW"). If
Customer does not have an existing switched services agreement with a
member of the WorldCom Group, the "EFFECTIVE DATE" will be the date
this Agreement has been fully executed by both parties and the Credit
Review has been completed.
2. CUSTOMER'S MINIMUM REVENUE COMMITMENT: Commencing with the first day
of the first (1st) billing period following the Effective Date (as
determined under Section 1 above) and continuing through the end of
the Service Term (including any extensions thereto) (the "COMMITMENT
PERIOD"), Customer agrees to maintain, on a take-or-pay basis, Monthly
Revenue (as defined in the applicable Rate and Discount Schedule) of
at least $0 ("CUSTOMER'S MINIMUM REVENUE COMMITMENT"). In the
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event Customer is not maintaining TERMINATION Service or TOLL FREE
ORIGINATION Service but is maintaining other Services from WorldCom
hereunder (e.g., SWITCHED ACCESS Service, DEDICATED ACCESS Service or
TRAVEL CARD Service), Customer's Minimum Revenue Commitment will be
the greater of (i) $10,000, or (ii) the amount stated above.
3. DEFICIENCY CHARGE: In the event Customer does not maintain Customer's
Minimum Revenue Commitment in any month during the Commitment Period
(regardless of whether Customer has commenced using any or all of the
Switched Services described herein), then for those month(s) only,
Customer will pay WorldCom the difference between Customer's Minimum
Revenue Commitment and Customer's actual Monthly Revenue (as described
in the applicable Rate and Discount Schedule) (the "DEFICIENCY
CHARGE"). The Deficiency Charge will be due at the same time payment is
due for Service provided to Customer, or immediately in an amount equal
to Customer's Minimum Revenue Commitment for the unexpired portion of
the Service Term, if WorldCom terminates this Agreement based on
Customer's default.
4. CHARGES AND PAYMENT TERMS. The parties agree to substitute Subsection
5(D) of the TSA to read in its entirety as follows:
(D) Billing Disputes Notwithstanding the foregoing, amounts
reasonably disputed by Customer (along with late fees attributable to
such amounts) shall apply but shall not be due and payable for a
period of sixty (60) days following the Due Date therefor, provided
Customer: (i) pays all undisputed charges on or before the Due Date,
(ii) presents a written statement of any billing discrepancies to
WorldCom in reasonable detail on or before the Due Date of the invoice
in question, and (iii) negotiates in good faith with WorldCom for the
purpose of resolving such dispute within said sixty (60) day period.
In this event both parties in good faith agree to consider alternate
methods of dispute resolution such as arbitration, mediation or
mini-trial; provided, however, any method must be mutually agreed to
in writing by both parties. In the event such dispute is mutually
agreed upon and resolved in favor of WorldCom, Customer agrees to pay
WorldCom the disputed amounts together with any applicable late fees
within ten (10) days of the resolution (the "ALTERNATE DUE DATE"). In
the event such dispute is mutually agreed upon and resolved in favor
of Customer, Customer will receive a credit for the disputed charges
in question and the applicable late fees. In the event WorldCom has
responded to Customer's dispute in writing and the parties fail to
mutually resolve or settle the dispute within such sixty (60) day
period (unless WorldCom has agreed in writing to extend such period)
all disputed amounts together with late fees shall become due and
payable, and this provision shall not be construed to prevent Customer
from pursuing any available legal remedies. WorldCom shall not be
obligated to consider any Customer notice of billing discrepancies
which are received by WorldCom more than sixty (60) days following the
Due Date of the invoice in question.
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IN WITNESS WHEREOF, the parties have executed these Classic/TRANSCEND
(TM) Switched Services Program Enrollment Terms.
WORLDCOM NETWORK SERVICES, INC. MAXXIS COMMUNICATIONS, INC.
By: /s/ Charles M. Cole By: /s/ Thomas O. Cordy
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(Signature) (Signature)
Charles M. Cole Thomas O. Cordy
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(Print Name) (Print Name)
Vice President Carrier Sales President/CEO
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(Title) (Title)
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