1
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.36
IXC
MASTER SERVICE AGREEMENT
This Agreement for telecommunications services is made as of the date of last
execution below (the "Effective Date") and entered into by and between IXC
COMMUNICATIONS SERVICES, INC., a Delaware corporation with its principal place
of business at 1122 Capital of Texas Hwy. South, Austin, Texas 78746-6426
("Supplier"), and MAXXIS GROUP, INC., a Georgia corporation with its principal
place of business at 1901 Montreal Road, Tucker, Georgia 30084-5223
("Customer").
WHEREAS, Customer desires to obtain telecommunications services as described
below (the "Service") from Supplier, and Supplier is willing to provide the
Service for the rates attached hereto.
NOW, THEREFORE, Customer and Supplier hereby mutually agree as follows:
CREDIT REQUIREMENTS: See Section 5, Additional Assurances, of the Master
Service Agreement Terms & Conditions.
SERVICE, TERM AND RATES: Supplier agrees to provide and Customer agrees to
purchase Service(s) indicated below. This agreement, including any terms and
conditions, addenda, schedules, supplements or exhibits which are attached
hereto and incorporated herein, constitutes the entire agreement (the
"Agreement") by Supplier and Customer pertaining to the subject matter(s)
hereof and supersedes all prior and contemporaneous agreements and
understanding in connection herewith.-
SERVICE TYPE:
SWITCHED SERVICE: BROADBAND SERVICE:
______X_____Xclusive ___________ATM
______X_____Xnet LATA ___________Fame Relay
____________ Xnet LEx ___________Network Management Services
PRIVATE LINE SERVICE: ___________Training
______X_____Digital CUSTOMER INTERFACE:
____________ Optical ___________Rack Space & Power
___________Shelf Space
___________Collocation
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
last written below.
IXC COMMUNICATIONS SERVICES, INC. MAXXIS GROUP, INC.
BY: /S/ LEO WELSH BY: /S/ THOMAS O. CORDY
--------------------------- ----------------------------
NAME: LEO WELSH NAME: THOMAS O. CORDY
------------------------- --------------------------
TITLE: PRES. - WHOLE SALE TITLE: PRESIDENT/CEO
------------------------ -------------------------
DATE: 3/25/99 DATE: MARCH 18, 1999
------------------------- --------------------------
FULL BUSINESS ADDRESS: FULL BUSINESS ADDRESS:
1122 CAPITAL OF TEXAS HWY. SOUTH 1901 MONTREAL ROAD
AUSTIN, TEXAS 78746-6426 TUCKER, GEORGIA 30084-5223
TELEPHONE: (512) 427-3700 TELEPHONE: (770) 696-6378
FACSIMILE: (512) 328-7902 FACSIMILE: (770) 552-8471
BILLING CONTACT: DEBIRA YOUNG
TELEPHONE: 770/696-6343
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MASTER SERVICE AGREEMENT
TERMS & CONDITIONS
1. CREDIT. All Services ordered hereunder are subject to credit approval.
Customer shall complete a credit application form attached hereto as
Exhibit A.
2. PROVISION OF BALANCE SHEET. Prior to commencement of Service, Customer
shall provide Supplier with financial statements including a
consolidated balance sheet of Customer as of the end of the most
recent quarter and consolidated statements of income and retained
earnings of such quarter and the fiscal year to date through such
quarter, all in reasonable detail and certified by Customer's chief
financial officer as having been prepared in accordance with generally
accepted accounting principles, consistently applied. Customer shall
provide updated financial statements as reasonably requested by
Supplier.
3. PAYMENT TERMS. Invoices for Service are due and payable within thirty
(30) days of the date of invoice (unless otherwise indicated in the
Credit Requirements section of the Master Service Agreement), without
demand or set off by Customer. Payments not received within thirty
(30) days of the date of invoice are considered past due. In addition
to Supplier undertaking any of the actions set forth in this
Agreement, if any invoice is not paid when due: (i) a late charge
shall accrue equal to 1-1/2% (or the maximum legal rate, if less) of
the unpaid balance per month; (ii) Supplier may require a Security
Deposit or other forms of security acceptable to Supplier; and/or
(iii) Supplier may take any action in connection with any other right
or remedy Supplier may have under this Agreement in law or in equity.
4. BILLING DISPUTES. If Customer in good faith disputes any portion of
any Supplier invoice, Customer shall submit to Supplier, within thirty
(30) days following the date of the invoice, full payment of the
undisputed portion of the invoice and written documentation
identifying and substantiating the disputed amount. If Customer does
not report a dispute within the thirty (30) day period, Customer shall
have waived its dispute rights for that invoice. Supplier and Customer
agree to use their respective best efforts to resolve any dispute
within fifteen (15) days after Supplier receives written notice of the
dispute from Customer. Any disputed amounts resolved in favor of
Customer shall be credited to Customer's account on the next invoice
following resolution of the dispute. Any disputed amounts determined
to be payable to Supplier shall be due within ten (10) days of the
resolution of the dispute.
Any dispute arising out of or relating to this Agreement which has not
been resolved by the good faith efforts of the parties will be settled
by binding arbitration conducted expeditiously in accordance with
Section 16.
5. ADDITIONAL ASSURANCES. If at any time during the term of this
Agreement there is a material and adverse change in Customer's
financial condition or business prospects, which shall be determined
by Supplier in its sole and absolute discretion, then Supplier may
demand that Customer provide a Security Deposit pursuant to Supplier's
standard terms and conditions, as security for the full and faithful
performance of Customer of the terms, conditions and covenants of this
Agreement; provided, however, that in no event shall the amount of the
Security Deposit ever exceed two months' estimated Usage Charges and
other amounts payable by Customer to Supplier hereunder.
6. CERTIFICATION. Customer hereby represents and warrants that it is
certified to do business in all jurisdictions in which it conducts
business and is in good standing in all such jurisdictions. Customer
further represents and warrants that it is certified by the proper
regulatory agencies to provide interstate, intrastate and
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international long distance services to End-Users in those
jurisdictions where such services are to be provided by Customer.
Customer shall keep current during the term of this Agreement, copies
of its Certificates of Public Convenience and Necessity or similar
documents certifying Customer's interstate, intrastate, or
international operating authority in any local, state, or federal
jurisdiction (collectively, "Service Compliance Certificates") and
furnish copies thereof to Supplier within ten days of written request
by Supplier. Supplier reserves the right to refuse or withhold Service
in any jurisdiction in which Customer's Service Compliance Certificate
has not been furnished to Supplier in a timely manner. Customer shall
defend and indemnify Supplier from any losses, expenses, demands and
claims in connection with Customer's failure to provide Supplier with
such Service Compliance Certificates. Such indemnification includes
costs and expenses (including reasonable attorney's fees) incurred by
Supplier in settling, defending or appealing any claims or actions
brought against it relating to Customer's failure to provide such
Service Compliance Certificates.
7. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof, shall be
governed by the laws of the State of Texas without regard to its
principles of choice of law.
8. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given as of the date of
delivery, facsimile transmission or mailing, and if mailed, first
class postage prepaid, certified or registered mail, return receipt
requested to the following persons, unless contrary instructions are
given by the parties in writing:
If to Supplier:
IXC Communications Services, Inc.
1122 Capital of Texas Hwy. South
Austin, Texas 78746-6426
Attention: Contract Administration
If to Customer:
Maxxis Group, Inc.
1901 Montreal Road
Tucker, Georgia 30084-5223
Attention: Debira Young
9. WAIVER OF BREACH OR VIOLATION NOT DEEMED CONTINUING. The waiver by
either party of a breach or violation of any provision of this
Agreement shall not operate as or be construed to be a waiver of any
subsequent breach hereof.
10. BANKRUPTCY. In the event of the bankruptcy or insolvency of either
party hereto or if either party hereto shall make an assignment for
the benefit of creditors or take advantage of any act or law for
relief of debtors, the other party to this Agreement shall have the
right to terminate this Agreement without further obligation or
liability on its part.
11. BUSINESS RELATIONSHIP. This Agreement shall not create any agency,
employment, joint venture, partnership, representation, or fiduciary
relationship between the parties. Neither party shall have the
authority to, nor shall any party attempt to, create any obligation on
behalf of the other party.
12. INDEMNITY.
A. Each party shall indemnify, defend, release and hold harmless
the other party and all of its officers, agents, directors,
shareholders, subcontractors, subsidiaries, employees and other
affiliates (collectively "Affiliates") from and against any action,
claim, court cost, damage, demand, expense, liability, loss, penalty,
proceeding or suit, (collectively, together with related attorneys'
fees; including costs and disbursements, "Claims") imposed upon either
party by reason of damages to property or injuries, including death,
as a result of an intentional or a negligent act or omission on the
part of the indemnifying party or any of its Affiliates in connection
with: (i) the performance of this Agreement; or (ii) other activities
relating
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to the property or facilities which are the subject of this Agreement,
whether or not the Claims result from a sole negligent act or omission
on the part of the indemnifying party, whether the Claims result from
the concurrent negligent act or omission on the part of both parties,
or whether the Claims result from the negligent act or omission of the
indemnifying party and some other third party. In the event a Claim
relates to the negligence of both parties, the relative burden of the
Claim shall be attributed equitably between the parties in accordance
with the principles of comparative negligence.
B. In the event any action shall be brought against the indemnified
party, such party shall immediately notify the indemnifying party in
writing, and the indemnifying party, upon the request of the
indemnified party, shall assume the defense thereof on behalf of the
indemnified party and its Affiliates and shall pay all expenses and
satisfy all judgments which may be incurred by or rendered against the
indemnified party or its Affiliates in connection therewith, provided
that the indemnified party shall not be liable for any settlement of
any such action effected without its written consent.
C. Notwithstanding the termination of this Agreement for any
reason, this Section 12 shall survive such termination.
13. INSURANCE. Throughout the term of this Agreement and any extension
thereof, each party shall maintain and, upon written request, shall
provide to the other proof of adequate liability insurance:
(i) Worker's compensation insurance up to the amount of the
statutory limit in the state or states where work is to be performed;
(ii) Employer's liability insurance with a limit of not less than
$200,000 per claim with an all-states endorsement;
(iii) Comprehensive general liability insurance with a limit of not
less than $1,000,000 per occurrence for bodily injury liability and
property damage liability, including coverage extensions for blanket
contractual liability, personal injury liability and products and
completed operations liability; and
(iv) Comprehensive Auto Liability insurance with a limit of not less
than $1,000,000 per accident for Bodily Injury Liability and Property
Damage Liability arising out of the ownership, maintenance or use of
any vehicle in the performance of this Agreement.
14. AUTHORIZED USE OF SUPPLIER NAME. Without Supplier's prior written
consent, Customer shall not: (i) refer to itself as an authorized
representative of Supplier in promotional, advertising or other
materials; or (ii) use Supplier's logos, trade marks, service marks,
or any variations thereof in any of its promotional, advertising or
other materials or in any activity using or displaying Supplier's name
or the Services to be provided by Supplier. Customer agrees to change
or correct, at Customer's expense, any such material or activity which
Supplier, in its sole judgment, determines to be inaccurate,
misleading or otherwise objectionable in relation to using or
marketing Supplier's services. Customer is explicitly authorized to
only use the following statements in its sales literature: (i)
"Customer utilizes the Supplier's network"; (ii) "Customer utilizes
Supplier's facilities"; (iii) "Supplier provides only the network
facilities"; and (iv) "Supplier is our network services provider".
15. ASSIGNMENT. Neither party hereto may assign this Agreement without the
express written consent of the other party hereto, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing: (i) a
security interest in this Agreement may be granted by Supplier to any
lender to secure borrowings by Supplier or any of its affiliates; (ii)
Supplier may assign all its rights and obligations hereunder to any
Affiliate; and (iii) any subsidiary of Supplier may assign any amounts
due from Customer under any Supplement to Supplier for billing
purposes.
16. BINDING ARBITRATION. The parties will attempt in good faith to resolve
any controversy or claim arising out of or relating to this Agreement
promptly through discussions between themselves at
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the operational level. In the event a resolution cannot be reached,
such controversy or claim shall be negotiated between appointed
counsel or senior executives of the parties who have authority to
settle the controversy.
The disputing party shall give the other party written notice of the
dispute. If the parties fail to resolve such controversy or claim
within thirty (30) days of the disputing party's notice, either party
may seek arbitration as set forth below.
Any controversy or claim arising out of or relating to this Agreement,
or a breach of this Agreement, shall be finally settled by arbitration
in Austin, Texas and shall be resolved under the laws of the State of
Texas. The arbitration shall be conducted before a single arbitrator
in accordance with the commercial rules and practices of the American
Arbitration Association then in effect.
The arbitrator shall have the power to order specific performance if
requested. Any award, order, or judgment pursuant to such arbitration
shall be deemed final and binding and may be enforced in any court of
competent jurisdiction. The parties agree that the arbitrator shall
have no power or authority to make awards or issue orders of any kind
except as expressly permitted by this Agreement, and in no event shall
the arbitrator have the authority to make any award that provides for
punitive or exemplary damages. All such arbitration proceedings shall
be conducted on a confidential basis. The arbitrator may, as part of
the arbitration award, permit the substantially prevailing party to
recover all or part of its attorney's fees and other out-of-pocket
costs incurred in connection with such arbitration. Customer may, at
its option, continue to accept what it considers to be below-standard
Services and pay the charges hereunder relating thereto during such
pendency of such arbitration, without prejudice thereto.
17. LEGAL CONSTRUCTION. In the event one or more of the provisions
contained in this Agreement shall, for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
In the event of any conflict between the provisions of these Terms &
Conditions and the applicable Supplement and Exhibits, the conflict
shall be resolved by reference to the following order of priority of
interpretation: a) Exhibits; b) Supplement; and c) Terms & Conditions.
Not withstanding the foregoing no Exhibit requiring execution shall be
binding unless and until such Exhibit has been executed by an
authorized officer of Customer.
18. NO PERSONAL LIABILITY. Each action or claim of any party arising under
or relating to this Agreement shall be made only against the other
party as a corporation, and any liability relating thereto shall be
enforceable only against the corporate assets of such party. No party
shall seek to pierce the corporate veil or otherwise seek to impose
any liability relating to, or arising from, this Agreement against any
shareholder, employee, officer or director of the other party. Each of
such persons is an intended beneficiary of the mutual promises set
forth in this Section and shall be entitled to enforce the obligations
of this Section.
19. NOTICE OF BREACH OF AGREEMENT. To be effective, written notice of any
material breach (except Payment Default) must prominently contain the
following sentences in capital letters: "THIS IS FORMAL NOTICE OF A
BREACH OF CONTRACT. FAILURE TO CURE SUCH BREACH WILL HAVE SIGNIFICANT
LEGAL CONSEQUENCES."
20. LIMITATION OF LIABILITY. Supplier's liability arising out of delays in
restoration of the Services to be provided under this Agreement or out
of mistakes, accidents, omissions, interruptions, or errors or defects
in transmission in the provision of Services or any other
telecommunications services, shall be subject to the limitations
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set forth below and in the applicable Tariff. EXCEPT OTHERWISE
PROVIDED HEREIN, IN NO EVENT SHALL SUPPLIER BE LIABLE TO CUSTOMER OR
ANY OF THE CUSTOMER'S OWN CUSTOMERS OR ANY OTHER THIRD PARTY IN ANY
RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY DAMAGES, EITHER
DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL,
PUNITIVE, OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR
NATURE WHATSOEVER, ARISING OUT OF MISTAKES, ACCIDENTS, ERRORS,
OMISSIONS, INTERRUPTIONS, OR DEFECTS IN TRANSMISSION, OR DELAYS,
INCLUDING THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL
AUTHORITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
OBLIGATIONS OF SUPPLIER PURSUANT TO THIS AGREEMENT; AND IN NO EVENT
SHALL SUPPLIER BE LIABLE AT ANY TIME FOR ANY AMOUNT IN EXCESS OF THE
AGGREGATE AMOUNT IT HAS PRIOR TO SUCH TIME COLLECTED FROM CUSTOMER
WITH RESPECT TO SERVICES DELIVERED HEREUNDER. SUPPLIER MAKES NO
WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY
SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER
MATTER, ALL OF WHICH WARRANTIES BY SUPPLIER ARE HEREBY EXCLUDED AND
DISCLAIMED. For purposes of this Section, the term "Supplier" shall be
deemed to include Supplier, its shareholders, directors, officers and
employees, and any person or entity assisting Supplier in its
performance pursuant to this Agreement.
21. SYSTEM MAINTENANCE. In the event Supplier determines to interrupt
Services for the performance of routine system maintenance, Supplier
will use reasonable efforts to notify Customer prior to the
interruption and to conduct such maintenance during non-peak hours. In
no event shall interruption for system maintenance constitute a
Failure of Performance by Supplier.
22. MAINTENANCE & TROUBLE REPORTING. Supplier's standard fees for Customer
maintenance support services are as follows:
Maintenance services shall be defined as all work performed by
Supplier on equipment provided by or on behalf of the Customer, or
supervision of the Customer's work within Supplier's terminal
facilities. Maintenance Service charges are not billed for troubles
found within that portion of a circuit provided by Supplier. The
following billing rates apply for these services:
A. $75 per hour (4 hour minimum-if dispatch is required) Monday
through Friday during the business hours of 8:00 a.m. - 5:00 p.m.
local time, exclusive of the following holidays: New Year's Day,
President's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and the day after Thanksgiving and Christmas Day.
B. $95 per hour (4 hour minimum) for overtime work done after
business hours (defined above) and/or on holidays (defined above)
and/or all day on Saturdays and Sundays.
C. As requests for maintenance services are typically made via
telephone, Supplier must be advised in writing as to the person(s) who
are authorized to request service. It is the Customer's responsibility
to keep Supplier apprised of any changes to its list of
representative(s).
D. To request technical assistance and help under the maintenance
services, a call must be made to Supplier's Network Control Center at
1-800-526-2488. This number should be used for Supplier technical
assistance, troubleshooting or testing of circuits, not for service
impairment or outages. The person calling in must be on the authorized
list in order to
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commit for charges for this technical assistance. If that person is
not on the list, the request cannot be accommodated.
The Network Control Center personnel will take the call, record the
caller's name and phone number along with facts concerning the
assistance and support needed. The caller will then be given the
number of the "Assistance Ticket."
Upon completion of work. this "Assistance Ticket" will be given to
Supplier's Accounting Department, and the Customer will subsequently
be billed based upon the information on that ticket. A copy will be
attached to the invoice.
Except for emergencies, Supplier's technicians cannot be dispatched
unless requests are made in accordance with the above call-out
procedure.
23. SUBJECT TO LAWS. This Agreement is subject to, and Customer agrees to
comply with, all applicable federal, state and local laws, and
regulations, rulings and orders of governmental agencies, including,
but not limited to, the Communications Act of 1934, the
Telecommunications Act of 1996, the Rules and Regulations of the
Federal Communications Commission ("FCC") and state public utility or
service commissions ("PSC"), tariffs and the obtaining and continuance
of any required certification, permit, license, approval or
authorization of the FCC and PSC or any governmental body, including,
but not limited to regulations applying to feature group termination
and Letter of Agencies ("LOAs").
24. FCC PERMITS, AUTHORIZATION AND FILINGS. Supplier shall take all
necessary and appropriate steps, as soon as possible, to procure from
the FCC the necessary authorizations, if any, to deliver Services
hereunder to Customer and whatever approvals are necessary from any
other federal or state agency. In the event that Supplier cannot obtain
all necessary federal, state or local authority to provide Services
hereunder, Supplier shall promptly give written notice thereof to
Customer, and such notice shall constitute termination without
liability of either party hereto of all obligations hereunder.
25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and when taken
together shall constitute one document.
26. CONFIDENTIAL INFORMATION AND NONSOLICITATION. "Confidential
Information" shall mean all information disclosed in writing by one
party to the other party which is clearly marked "CONFIDENTIAL" by the
disclosing party at the time of disclosure. "Confidential Information"
shall also include certain oral information disclosed by one party to
the other party, provided that the disclosing party designates such
information as confidential at the time of disclosure and gives
recipient a written summary of such information within five business
days after the oral disclosure was made. Notwithstanding the
foregoing, all information concerning the traffic volume/distribution
of Supplier, pricing rates, and customer lists is hereby deemed to be
Confidential Information regardless of whether it is so identified.
The term "Confidential Information" does not include any information
which: (i) was as already known by the receiving party free of any
obligation to keep it confidential at the time of its disclosure by
the disclosing party, (ii) becomes publicly known through no wrongful
act of the receiving party, (iii) is rightfully received from a third
person without knowledge of any confidentiality obligation, (iv) is
independently acquired or developed without violating any of the
obligations under this Agreement, (v) is disclosed to a third person
by the disclosing party without similar confidentiality restrictions
on such third persons rights, or (vi) is approved for release by
written authorization of the disclosing party.
Further, the recipient may disclose Confidential Information pursuant
to any judicial or governmental request, requirement or order. The
recipient, however, shall take reasonable steps to give the disclosing
party sufficient prior notice to contest such request, requirement or
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order. Confidential Information shall remain the property of the
disclosing party, and shall be returned to the disclosing party or
destroyed upon request of the disclosing party. Supplier may make such
Confidential Information available to its lenders.
Accordingly, in the event of a breach or threatened breach of the
foregoing provisions, Supplier shall be entitled to an injunction or
restraining order, in addition to such other rights or remedies as may
be available under this Agreement, at law or in equity, including but
not limited to money damages.
27. FORCE MAJEURE. Supplier shall not be liable for any failure of
performance hereunder due to causes beyond its reasonable control,
including, but not limited to: acts of God, fire, explosion,
vandalism, cable cut, storm or other similar catastrophes; any law,
order, regulation, direction, action or request of the United States
government, or of any other government, including state and local
governments having jurisdiction over either of the parties, or of any
department, agency, commission, court, bureau, corporation or other
instrumentality of any one or more of said governments, or of any
civil or military authority; national emergencies; insurrections;
riots; wars; or strikes, lock outs, work stoppages or other labor
difficulties.
28. SURVIVAL. The covenants and agreements of Customer contained in this
Agreement with respect to payment of amounts due, confidentiality and
indemnification shall survive any termination of this Agreement. The
rights and obligations under this Agreement shall survive any merger
or sale of either party and shall be binding upon the successors and
permitted assigns of each party.
29. REGULATORY. Customer is responsible for payment of, or reimbursement
to Supplier for, Universal Service Fund and Lifeline Assistance
Charges (Presubscribed line charges) set forth in the National
Exchange Carrier Association (NECA) Tariff FCC #5, sections 8.5.,
8.5.2 and 17.1.4 (A) & (B), as the same may be amended from time to
time, or any successor tariffs or sections, with respect to any
Customer ANI's subscribed to Supplier. In addition, with respect to
the Services, Customer is responsible for payment of, or reimbursement
to Supplier for: (i) telecommunication relay service charges required
by the Americans with Disabilities Act or otherwise (both federal and
state); (ii) interexchange carrier fees payable to the FCC under the
Omnibus Budget Reconciliation Act of 1993 or otherwise; (iii) payphone
service provider compensation as determined by the FCC in CC Docket
No. 96-128; (iv) universal service fund charges, intraLATA
compensation charges; and (v) other federal or state fees or charges
imposed on Supplier. Supplier will furnish, at Customer's request,
documentation to support the fees or charges payable by Customer to
Supplier pursuant to this Section 29.
Customer shall furnish to Supplier valid and appropriate tax exemption
certificates for all applicable jurisdictions (federal, state and
local) in which it performs customer billing. Customer is responsible
for properly charging tax to its subscribers and for the proper and
timely reporting and payment of applicable taxes to the taxing
authorities and shall defend and indemnify Supplier from payment and
reporting of all applicable federal, state and local taxes, including,
but not limited to, gross receipts taxes, surcharges, franchise fees,
occupational, excise and other taxes (and penalties and interest
thereon), relating to the Services. Such indemnification includes
costs and expenses (including reasonable attorney's fees) incurred by
Supplier in settling, defending or appealing any claims or actions
brought against it relating to said taxes. If Customer fails to
provide and maintain the required certificates, Supplier may charge
Customer and Customer shall pay such applicable taxes.
The amounts payable by Customer under this Agreement do not include
any state or local sales or use taxes, or utility taxes, however
designated, which may be levied on the goods and services provided by
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Supplier hereunder. With respect to such taxes, if applicable,
Customer shall furnish Supplier with an appropriate exemption
certificate or pay to Supplier, upon timely presentation of invoices
therefore, such amounts thereof as Supplier may be by law required to
collect or pay. Any and all other taxes, including but not limited to
franchise, net or gross income, license, occupation, and real or
personal property taxes, shall be timely paid by Supplier. Customer
shall pay to Supplier any such taxes that Supplier may be required to
collect or pay.
30. OBLIGATIONS SEVERAL AND NOT JOINT. Each party shall be responsible
only for its own performance under the Agreement (including any
attachments, exhibits, schedules or addenda) and not for that of any
other party.
31. AMENDMENTS. This Agreement may only be modified or supplemented by an
instrument in writing executed by each party.
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IXC SWITCHED SERVICE SUPPLEMENT
XCLUSIVE SERVICES
1. SCOPE. Supplier is authorized: (i) to use its best efforts
(considering the needs of its other customers) to start provisioning
of Services (such services, together with the use of the IXC Online
Software, are referred to as the "Services") to Customer on or before
the Service Commencement Date, which is scheduled to be the first date
of order activation; and (ii) to act as Customer's agent in placing
orders with other carriers in order to provide telecommunications
services, if requested. Usage charges ("Usage Charges") hereunder
shall be based on: (i) the rates for Services set forth in Exhibit A,
as applicable; and (ii) actual usage of Supplier's network from
establishment of a connection between the calling telephone and the
called telephone to termination, as determined by Supplier.
2. TERM. This Agreement is for a term of two (2) years commencing on the
Effective Date, unless extended or earlier terminated pursuant to its
terms. This Agreement shall be automatically extended at the
expiration of the initial term on a month-to-month basis at Supplier's
then current month-to-month rates unless: (i) earlier terminated: or
(ii) written notice is given by either party at least thirty (30) days
before such expiration that such party does not consent to such
extension.
3. CUSTOMER RESPONSIBILITIES.
A. GENERAL DUTIES. Customer shall use its best efforts to solicit and
market the Services in accordance herewith and with applicable law.
Customer shall at all times conduct its efforts in a commercially
reasonable and ethical manner. Customer shall pay all its expenses in
connection with its business and its performance hereunder. Customer
shall provide its own billing and customer service to its customers
("End-Users"). Customer shall obtain a letter of agency ("LOA") from
each End-User in compliance with applicable Federal Communications
Commission ("FCC") and state regulations, however, Customer must
obtain a signed LOA from each End-User utilizing 800 service. Customer
shall retain the signed LOA's and promptly make originals available
upon request of Supplier, any local exchange carrier ("LEC") or any
regulatory agency. Customer shall be responsible for LEC Primary
Interexchange Carrier change charges ("PIC Charges") that may be
imposed on Supplier as a result of End-Users moving onto or off of the
Supplier's network. In the event of a dispute regarding a transfer to
the Supplier's network, including, but not limited to those resulting
from Customer's inability or refusal to provide original End-User
LOA's when requested, Customer shall pay Supplier such PIC Charges,
and any other expenses or damages suffered by Supplier relating to any
such transfer. To the extent Customer makes any statements or
representations to third parties (including End-Users) with regard to
Supplier, the Services, or the terms hereof, such statements or
representations shall be true and not misleading. When applicable,
Customer will be responsible for notifying each End-User, in writing
(or by any other means approved by the FCC that: (i) a transfer charge
will be reflected on such End-User's LEC bill for effecting a change
in primary interexchange carriers, (ii) the entity name under which
such End-User's interstate, intrastate and/or operator services will
be billed (if different from Customer), and (iii) the "primary"
telephone number(s) to be used for maintenance and questions
concerning such End-User's long distance service and/or billing.
Customer shall send Supplier a copy of the documentation Customer uses
to satisfy the above
IXC Confidential 1 10/12/99
12
requirements promptly upon request. Supplier may change the foregoing
requirements at any time in order to conform with applicable FCC and
state regulations. Notwithstanding the foregoing, however, Customer
shall be solely responsible for ensuring that the transfer of
End-Users to the Supplier's network conforms with applicable FCC and
state regulations, including, without limitation, the regulations
established by the FCC with respect to verification of orders for long
distance service generated by telemarketing.
B. SLAMMING POLICY. Supplier will not tolerate the practice of
slamming, the intentional, unauthorized transfer of a customer's local
or long distance service provider. Customer shall obtain a letter of
agency ("LOA") from each End-User; valid proof of authorization
includes an exact match of the name and telephone number on the LOA
completed by the person authorized to make the switch or the actual
tape of authorization. Customer shall retain the signed LOAs for one
year and make originals available upon request of Supplier within four
(4) business days. A Customer is responsible for providing LOA's for
its agents or resellers. If Supplier receives a slamming complaint
from a regulatory body (FCC, state commissions, Federal and state
counsel) against Customer and finds that Customer has caused a change
in a telecommunications subscriber's PIC without prior valid
authorization, then Customer will be required to pay an Unauthorized
Carrier Change Charge of $200 for each unauthorized PIC change. This
charge is to cover the administrative costs for processing the
complaint and is in addition to any fines or penalties assessed by a
state or federal regulatory agency, such fines or penalties also being
the responsibility of the Customer. Continued acts of slamming by
Customer shall be considered grounds for revoking any and all
contracts with Customer and further refusing to provide service to
Customer.
C. VOLUME FORECASTS. Prior to the Service Commencement Date and by the
end of each quarter thereafter, Customer shall provide Supplier with
forecasts covering a good faith estimate of the monthly traffic volume
and distribution for the ordered Services for the next three calendar
months. Supplier shall provide Customer with any information
reasonably requested to help Customer with its forecasts. The
forecasts are to be in the format attached hereto as Exhibit B.
D. CERTIFICATION. Customer shall provide Supplier with a written
certification (the "Certification") of the percentage of interstate
(including international) and intrastate minutes of use relevant to
the minutes of traffic to be terminated in the same state in which the
Supplier HUB is located to which the Service Interconnection is made.
This Certification is attached as Exhibit E and shall be provided by
Customer prior to commencement of Service for any Service
Interconnection. It shall be updated from time to time: (i) as desired
by Customer; or (ii) upon request of Supplier made no more than once
each calendar quarter. Any such modification or Certification shall be
effective as of the first day of the calendar month following
forty-five days notice to Supplier from Customer. In the event
Customer fails to make such Certification, the relevant minutes of use
will be deemed to be subject to the Intrastate Rates provided for in
the Exhibit A. In the event Supplier or any other third party requires
an audit of Supplier's interstate/intrastate minutes of traffic,
Customer agrees to cooperate in such audit at its expense and make its
call detail records, billing systems and other necessary information
reasonably available to Supplier or any third party solely for the
purpose of verifying Customer's interstate/intrastate minutes of
traffic. Customer agrees to indemnify Supplier for any liability
Supplier incurs in the
IXC Confidential 2 10/12/99
13
event Customer's Certification is not supported by such audit.
4. EXCLUDED ANIS. Supplier has the right to reject any automatic number
identifier ("ANI") supplied by Customer for any of the following
reasons: (i) Supplier is not authorized to provide or does not provide
long distance services in the particular jurisdiction in which the ANI
is located; (ii) a particular ANI submitted by Customer is not in
compliance with Supplier's then-current format, which shall be made
available to Customer upon request; (iii) Customer is not certified to
provide long distance services in the jurisdiction in which the ANI is
located; (iv) Customer is in default of this Agreement; (v) Customer
fails to cooperate with Supplier in implementing reasonable
verification processes determined by Supplier to be necessary or
appropriate in the conduct of business; or (vi) any other circumstance
reasonably determined by Supplier which could adversely affect
Supplier's performance under this Agreement or Supplier's general
ability to transfer its other customers or other End-Users to the
Supplier's network, including without limitation, Supplier's ability
to electronically effect PIC changes with the LEC's. However, whether
or not Supplier is electronically connected to the LEC's, Supplier
shall issue PIC orders on behalf of Customer. In the event Supplier
rejects an ANI, Supplier will use its best efforts to notify Customer
within forty-eight hours of its decision specifically describing the
rejected ANI and the reason(s) for rejecting that ANI. Further, any
ANI requested by Customer for Service may be deactivated by Supplier
after five days written notice to Customer if no Service billings
relevant thereto have been generated in any prior period of three (3)
consecutive calendar months.
5. RECORDS. Customer will maintain documents and records supporting
Customer's re-sale of Service, including, but not limited to,
appropriate and valid LOAs from End-Users for a period of not less
than twelve (12) months or such other longer period as may be required
by applicable law, rule or regulation. Customer shall indemnify
Supplier for any costs, charges or expenses incurred by Supplier
arising from disputed PIC selections involving Service to be provided
to Customer for which Customer cannot produce an appropriate LOA
relevant to the ANI and PIC Charge in question, or when Supplier is
not reasonably satisfied that the validity of a disputed LOA has been
resolved.
6. FRAUDULENT CALLS. Customer shall indemnify and hold Supplier harmless
from all costs, expenses, claims or actions arising from fraudulent
calls of any nature which may comprise a portion of the Service to the
extent that the party claiming the call(s) in question to be
fraudulent is (or had been at the time of the call) an End-User of the
Service through Customer or an End-User of the Service through
Customer's distribution channels. Customer shall not be excused from
paying Supplier for Service provided to Customer or any portion
thereof on the basis that fraudulent calls comprised a corresponding
portion of the Service. In the event Supplier discovers fraudulent
calls being made (or reasonably believes fraudulent calls are being
made), nothing contained herein shall prohibit Supplier from taking
immediate action that is reasonably necessary to prevent such
fraudulent calls from taking place, including without limitation,
denying Service to particular ANI's or terminating Service to or from
specific locations. Supplier shall use reasonable efforts to notify
Customer in the event Supplier takes action upon discovery of
fraudulent calls. In the event Customer discovers fraudulent calls
being made (or reasonably believes fraudulent calls are being made),
Customer shall notify Supplier as soon as possible at 1-800-353-3678.
IXC Confidential 3 10/12/99
14
7. RATES CHANGES.
A. Supplier reserves the right to modify charges for international
service upon seven (7) days notice to the Customer.
B. HIGH COST TERMINATION/ORIGINATION. Following the Service
Commencement Date for all Products (e.g. Xnet, Xclusive), Customer
will maintain at least 80% of the originating and 80% of the
terminating minutes (during any calendar month or pro-rata portion
thereof) in the low cost services areas as defined in Exhibit G.
Supplier shall have the right to apply a $0.03 per minute surcharge to
the number of originating minutes and apply a $0.03 per minute
surcharge to the number of terminating minutes which low cost
origination/termination does not exceed 80% of the total monthly
Service and a $0.05 per minute surcharge to the number of high cost
originating and terminating minutes which exceeds 50% of total monthly
Service.
Low Cost Origination or Termination is defined as all international
calls and domestic calls to or from any NPA.NXX associated with the
Operating Company Numbers listed in Exhibit G.
C. UNDER-UTILIZATION CHARGE. An under-utilization fee per DS-1 will be
applied to the monthly invoice based on the following schedule:
Minutes Per Trunk* Under-utilization Fee**
- ----------------- ---------------------
0-19,999 $2,000.00
20,000-39,999 $1,500.00
40,000+ -0-
*The average is calculated over all trunks. Usage includes both Xclusive
outbound and inbound Service.
**The penalty is applied on all trunks based on average minutes of usage per
trunk. A trunk is an equivalent T- 1 based on 24 DS-O's.
8. INVOICE & RATES.
A. DUE DATE. Usage Charges are billed and payable following the period
in which actual usage has been incurred. All Usage Charges contained
in this Agreement are calculated according to the rates set forth in
Exhibit A, attached hereto.
B. MONTHLY COMMITMENT. Customer shall have a six (6) month period (the
"Ramp-Up Period") beginning as of the Effective Date to purchase
Services hereunder of at least **** per month ("the Monthly Commitment
Level"). During the Ramp-Up Period, Customer shall use its best
efforts to utilize at least **** per month in Services hereunder;
however, Customer shall only be invoiced for actual Usage Charges,
based upon the rates in Exhibit A. Commencing on the first day after
six (6) complete calendar months after the Effective Date and
continuing for eighteen (18) months thereafter, Customer shall have a
"take or pay" commitment in the amount of the Monthly Commitment
Level. As used herein, a "take or pay" commitment means that Customer
has the obligation to pay for Services hereunder (at the same time as
payment is or would be due for Service for such month) in such amount
for each month during such periods, whether or not such Service is
actually used, excluding, without limitation, service charges,
interest, installation costs, local loops and nonrecurring charges.
Subject to the terms and conditions herein, Customer shall pay for
Services hereunder at the rates reflected in Exhibit A.
9. CALCULATION OF CALL DURATION. Supplier will calculate call duration
for Call Detail Records ("CDR's") which will be sent to Customer by
Supplier for Customer to rebill Customer's End-Users, based upon the
then-current IXC On-line software specifications.
IXC Confidential 4 10/12/99
15
Customer will be billed according to the rates in the attached
exhibits based on call duration of each CDR. Call duration for
outbound services will be from answer supervision of the called party
to disconnect. Call duration for inbound service will be from trunk
seizure of the Customer's platform to disconnect. CDR's, upon request
by Customer will be sent by Supplier within five (5) business days
from the end of the month in which service is rendered. Customer shall
choose to have the CDR's delivered either by electronic transmission
or by CD ROM and shall pay for such delivery according to the schedule
set forth in Exhibit A. CDR's shall be made available for up to one
(1) year from the date of service. The information format of the CDR's
is included in the User Guide and is subject to change from time to
time at Supplier's sole discretion.
10. CUSTOMER DEFAULT. In the event of a "Customer Default", upon notice to
Customer, Supplier may (in addition to such other rights or remedies
as Supplier may have under this Agreement, at law or in equity), at
its sole option do any or all of the following: (i) suspend Services
to Customer until such time as such circumstance is corrected
(provided Supplier shall not be prohibited from terminating this
Agreement after suspending Services); (ii) cease accepting or
processing orders for services; (iii) withhold delivery of CDR's; (iv)
draw on any security deposit or other assurance of payment submitted
under this Agreement; (v) terminate this Agreement without liability
to Supplier, which termination may include immediate cancellation of
the Services; (vi) directly contact the End-Users to inform them that
their long distance service will no longer be provided through
Customer, but may be continued through Supplier directly; (vii) bill
and collect from such End-Users directly (or through its billing
agents) for services provided by Supplier to them; (viii) treat such
End-Users as Supplier customers for all purposes; (ix) require
Customer to use its reasonable efforts to cause part or all of
Customer's carrier identification codes and End-Users to be
re-directed to the Supplier network; or (x) pursue such other remedy
or relief as may be appropriate.
"Customer Default" shall mean Customer: (i) breaches any material
provision of this Agreement, including, but not limited to, the
provisions regarding payment, and does not cure such breach within
thirty days (five days with respect to the first three payment
breaches and no notice period with respect to any further payment
breach) of notice thereof by Supplier; or (ii) files or initiates
proceedings or has proceedings filed or initiated against it, relating
to its liquidation, insolvency, reorganization or other relief (such
as the appointment of a trustee, receiver, liquidator, custodian or
other official) under any bankruptcy, insolvency or other similar law
or makes an assignment for the benefit of its creditors or enters into
an agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing. If Customer uses the
Services for any unlawful purpose or in any unlawful manner, Supplier
shall have the right to suspend any or all services hereunder to
Customer until the unlawful use ceases. Notwithstanding anything
herein to the contrary, no termination shall affect or reduce
Customer's obligation to make the "take or pay commitment" payments
required herein.
IXC Confidential 5 10/12/99
16
EXHIBIT A - XCLUSIVE SWITCHED SERVICE PRICING
Customer: Maxxis Group, Inc.
XCLUSIVE INTERSTATE PRICING (1+SWITCHED, 8XX SWITCHED & XPIN)
2 YEAR TERM - **** TAKE OR PAY
SWITCHED DEDICATED
OUTBOUND, INBOUND & XPIN OUTBOUND INBOUND
------------------------ ---------------------------
**** **** ****
AN UNDER-UTILIZATION CHARGE PER DS-1 WILL APPLY AS OUTLINED IN THE XCLUSIVE
SERVICE SUPPLEMENT.
XCLUSIVE INTERSTATE EXTENDED AREAS PRICING (DAY RATES 8 AM TO 5 PM
MONDAY-FRIDAY)*
Tern: 2 Years
1 + CALLS TO 8XX CALLS FROM
DEDICATED SWITCHED DEDICATED SWITCHED
------------------------- --------------------------
Hawaii **** **** **** ****
Alaska **** **** **** ****
USVI/PR **** **** **** ****
Guam **** **** **** ****
Northern
Mariana Is. **** **** **** ****
NORTHERN MARIANA IS. INCLUDE ROTA, SAIPAIN & TINIAN.
*SUBJECT TO AVAILABILITY
XCLUSIVE INTERSTATE EXTENDED AREAS PRICING (NON-DAY RATES)*
Term: 2 Years
1 + CALLS TO 8XX CALLS FROM
DEDICATED SWITCHED DEDICATED SWITCHED
------------------------- --------------------------
Hawaii **** **** **** ****
Alaska **** **** **** ****
USVI/PR **** **** **** ****
Guam **** **** **** ****
Northern
Mariana Is. **** **** **** ****
NORTHERN MARIANA IS. INCLUDE ROTA, SAIPAIN & TINIAN.
*SUBJECT TO AVAILABILITY
IXC Confidential 6 10/12/99
- -------------------
**** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.