1
Exhibit 10g
CONFIDENTIAL INFORMATION
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement ("Agreement") is entered into this
8th day of June, 1998, by and between Viva Servicios, S.de R.L. de C.V., a
corporation of the state of Baja California in Mexico with its principal office
at Blvd Agua Calente 4558, 22420 Tijuana, B.C., Mexico, ("VIVA"), and Diego Tel,
Inc., a corporation of the state of Nevada in the United States of America with
its principal office at 5545 Shadow Lawn Drive, Sarasota, FL 34242 USA, ("Diego
Tel").
WITNESSETH:
VIVA agrees to provide and Diego Tel agrees to accept switched
telecommunications services and other associated services (collectively
"Service"), as described in Service Schedule(s) identified herewith, subject to
the terms of this Agreement.
1. EFFECTIVE DATE - MINIMUM SERVICE TERM.
(A) Effective Date This Agreement shall be effective between the parties as of
the date first written above.
(B) Start Of Service VIVA's obligation to provide and Diego Tel's obligation to
accept and pay for Service shall be binding to the extent provided for in this
Agreement upon the execution of a Service Schedule by both parties and shall
commence with respect to any Service as of the later of the Diego Tel's
designated "Requested Service Date" set forth on each Service Schedule or the
date Service becomes available ("Start of Service"). Start of Service for
particular Switched Services shall be further described in the relevant Service
Schedule(s).
(C) Minimum Service Term Except as otherwise provided herein, the parties'
obligations hereunder with respect to Switched Service shall continue from the
Start of Service Date and over the "Minimum Service Term" set forth in the
relevant Service Schedule. Upon the expiration of the Minimum Service Term
relevant to any Service, the Service in question will continue to be provided on
a month-to-month basis subject to termination by either party upon thirty (30)
days prior written notice to the other party. Diego Tel shall be liable to pay
VIVA-for all charges associated with the Service in question during the Minimum
Service Term and any month-to-month continuation thereof as well as any and all
charges for actual and/or Minimum Committed Monthly Usage Level of the Service
as set forth in the relevant Exhibit(s) whether such usage occurred during the
Minimum Service Term or otherwise. Any applicable Minimum Usage Charges as set
forth in Section 3 (B) and relevant Service Schedule(s) are in addition to
charges associated with actual and/or minimum Committed Usage.
2
CONFIDENTIAL INFORMATION
2. TARIFFS AND SERVICE SCHEDULES.
(A) Tariffs Service shall be provided pursuant to this Agreement as supplemented
by applicable tariffs (including tariff revisions) filed by VIVA with the United
States Federal Communications Commission for international service and/or any
applicable tariff filed with the Mexico COFETEL ("Tariffs"). In the event of any
conflict between this Agreement and any Tariff, this Agreement shall control.
Additionally, the rates for service set forth in this Agreement shall prevail in
all cases, and such rates shall only be subject to change as provided in Section
5(B) of this agreement.
(B) Service Schedules Service requested by Diego Tel hereunder shall be
requested on VIVA Service Schedule forms and subscribed to by authorized
representatives of Diego Tel and VIVA (the "Service Schedule"). Each Service
Schedule shall reference this Agreement and shall become a part of this
Agreement to the extent that it describes the Service, Requested Service date,
Service Interconnection, if any, relevant to the Service in question, charges,
specific Service terms and other information necessary for VIVA to provide
Service to Diego Tel.
3. SERVICE INTERCONNECTIONS.
(A) Technical Requirements In order to utilize certain Switched Service, one or
more full time dedicated connections between Diego Tel's network ("Diego Tel
Location") and the VIVA Network at one or more VIVA designated locations ("VIVA
POP") must be established ("Service Interconnection"). Unless otherwise
indicated in a Service Schedule, Diego Tel shall be responsible for establishing
each Service Interconnection over facilities subject to VIVA's approval. Service
Interconnections shall only be comprised of DS- I facilities unless otherwise
provided for in the Service Schedule. If a Service Interconnection is proposed
to be made via an international exchange carrier, VIVA may direct Diego Tel to
utilize VIVA's entrance facilities or local serving arrangement ("LSA") with the
relevant local telephone operating company, and Diego Tel will be subject to a
non-discriminatory charges therefor from VIVA. The monthly recurring charge
relevant to Diego Tel's use of LSA capacity shall be subject to upward
adjustment by VIVA from time to time. Such adjustment, if any, shall not exceed
the rate that otherwise would be charged for the equivalent switched access
capacity between the same points by the relevant local telephone operating
company pursuant to its published charges I the type of service in question. If
other private line inter exchange facilities are necessary to establish a
Service Interconnection, and such facilities are requested from VIVA, such
facilities will be provided on an individual case basis.
Service Schedules are to be completed per DS-1 Connection order. The Diego Tel
is responsible for ordering the appropriate number of DS-1 connections within
the ninety (90) day ramp-up-period in order to accommodate the Minimum committed
Usage Level for all contracted Services.
(B) Interconnection Lodging Diego Tel must provide an average loading on each
DS-1 (or DS-1 equivalent) comprising the Service Interconnection at each VIVA
POP of not less than the number
3
CONFIDENTIAL INFORMATION
of minutes of usage per calendar month of the Minimum Service Term (or any pro
rata portion thereof) set forth in the relevant Service Schedule ("Minimum
Monthly Usage") . In the event Diego Tel fails to deliver the required Minimum
Monthly Usage level in a given calendar month, Diego Tel shall pay to VIVA an
additional amount for the difference between the Minimum Monthly Usage level and
the actual usage of the Service Interconnection in question upon the charge set
forth in the relevant Service Schedule ("Minimum Usage Charge").
Example: Diego Tel has a Minimum Monthly Usage level of 100,000 minutes. Diego
Tel's actual monthly usage for 2 DS-1s comprising Diego Tel's Service
Interconnection at VIVA POP A is 180,000 minutes and Diego Tel's actual
monthly usage for 2 DS- 1s comprising Diego Tel's Service
Interconnection at VIVA POP B is 270,000 minutes. Diego Tel would be
subject to a Minimum Usage charge of $600 since Diego Tel's Minimum
Monthly Usage at VIVA POP A was below 200,000 [(2 x 100,000)- 180,000 x
$.03 $600] and no Minimum Monthly Usage Charge for the Service
Interconnection at VIVA POP B, because Diego Tel exceeded the required
minimum of 200,000 in actual minutes of use for the 2 DS-ls comprising
the Service Interconnection at VIVA POP B.
To the extent available as determined by VIVA and subject to VIVA's standard
terms, conditions and charges, VIVA will provide space at VIVA POPs for Service
Interconnections. Diego Tel will be responsible for the provision of echo
cancellation equipment at Diego Tel's end of the Service Interconnections.
4. DIEGO TEL RESPONSIBILITIES
(A) Diego Tel Facilities Diego Tel has sole responsibility for the installation,
testing, operation of and costs associated with facilities, services and
equipment other than that specifically to be provided by VIVA as described in a
Service Schedule ("Diego Tel Facilities"). In no event will the untimely
installation or non-operation of Diego Tel Facilities relieve Diego Tel of its
obligation to pay charges for Service provided by VIVA. If Diego Tel is
responsible for establishing a Service Interconnection over facilities other
than those controlled by VIVA, VIVA shall not be obligated to provide Service
relevant thereto if the Service Interconnection in question is not activated
within sixty (60) days following the Requested Service Date.
(B) Expedited Charges Should Diego Tel request expeditious Services and/or
changes to orders and VIVA agrees to such request VIVA will pass through the
charges assessed by any supplying parties involved at the same rate to Diego
Tel. VIVA may further condition its agreement with such request upon Diego Tel's
payment of additional charges to VIVA.
(C) Diego Tel Services Diego Tel shall not be relieved of any obligation under
this Agreement by virtue of the fact that Service is ultimately by a customer of
Diego Tel ("End User"). Diego Tel
4
CONFIDENTIAL INFORMATION
shall be solely responsible for End User solicitation, service requests, credit
worthiness, Diego Tel service, billing and collection. Diego Tel shall be solely
liable for, and shall not be relieved of any obligation hereunder on account of
amounts it cannot collect from End Users for any reason, and billing adjustments
it grants End Users for any reason including adjustments for fraudulent charges,
directory assistance or any other form of credit.
(D) Fraudulent Calls Diego Tel shall indemnify and hold VIVA harmless from all
costs, expenses, claims or actions arising from fraudulent calls of any nature
which may comprise a portion of the Services to the extent that the party
claiming the calls(s) in question to be fraudulent is (or had been at the time
of the call) an End User of the Services through Diego Tel or an End User of the
Service through Diego Tel's Diego Tel distribution channels. Diego Tel shall not
be excused from paying VIVA for Services provided to Diego Tel or any portion
thereof on the basis that fraudulent calls comprised a corresponding portion of
the Services. In the event VIVA discovers fraudulent calls being made (or
reasonably believes fraudulent calls are being made), nothing contained herein
shall prohibit VIVA from taking immediate action (without notice to Diego Tel)
that is reasonably necessary to prevent such fraudulent calls from taking place,
including without limitation, denying Services to particular ANI's or
terminating Service to or from Specific locations. VIVA shall not, however, have
any obligation to monitor the Service or take any other action to detect
fraudulent calls.
(E) Licenses and State Certifications Diego Tel warrants that in all
jurisdictions in which it provides long distance services that require
licensing, registration or certification, it has obtained the necessary
authority from the appropriate governmental authority. Further, if requested by
VIVA, Diego Tel agrees to provide proof of such authority acceptable to VIVA. In
the event Diego Tel is prohibited, either on a temporary or permanent basis,
from continuing to conduct its telecommunications operations in any
jurisdiction, Diego Tel shall (i) immediately notify VIVA by facsimile or
E-mail, and (ii) send written notice to VIVA within twenty-four (24) hours of
such prohibition.
(F) Tax Exemption Diego Tel will provide VIVA, with a valid tax exemption form
to exempt VIVA, under applicable law, from taxes that would otherwise be paid by
VIVA. VIVA will invoice Diego Tel for taxes that are not covered by a tax
exemption certificate properly file with VIVA.
(G) Forecasts Before Diego Tel's initial order for Service, Diego Tel shall
provide VIVA with a forecast regarding the number of minutes expected to be
terminated or originated in various LATAs, tandems and/or international
destinations so as to enable VIVA to configure optimum network arrangements. If
applicable, forecast for international destinations must be provided by band of
service. Diego Tel will provide VIVA with additional forecasts from time to time
upon VIVAs request which shall not be more frequent than once every three (3)
months. Should the distribution of traffic change, VIVA reserves the right to
modify rates or eliminate service with thirty (30) days notice for domestic
locations and thirty (30) days notice for international locations.
5
CONFIDENTIAL INFORMATION
(H) PIU Certification Absent the automatic number identification ("ANI") of the
calling party, Diego Tel shall provide VIVA with a written certification (the
"Certification") of the percentage of international minutes of use relevant to
the minutes of traffic to be terminated in the same Mexican state in which the
VIVA POP is located to which the Service Interconnection is made. This
Certification shall be provided by Diego Tel prior to Start of Service for any
Service Interconnection and may be modified from time to time by Diego Tel and
subject to recertification upon the request of VIVA which requests shall not be
made unilaterally by VIVA more than once each calendar quarter. Any such
modification(s) Certification(s) shall be effective as of the first day of any
calendar month and following at least forty-five (45) days notice from Diego
Tel. In the event Diego Tel fails to make such Certification, the relevant
minutes of use will be deemed to be subject to the International Rates provided
for in the pricing exhibit to Diego Tel's Service Schedule (or, if no such rates
are provided, at VIVA's tariffed international rates). Diego Tel agrees to
retain all records which support Diego Tells Certification for a period of one
(1) year or any longer period required by any applicable regulatory
requirements. In the event VIVA or any other third party requires an audit of
VIVA's international/international minutes of traffic, Diego Tel agrees to
cooperate in such audit at its expense and make its call detail records, billing
systems and other necessary information reasonably available to VIVA or any
third party solely for the purpose of verifying Diego Tel's
international/international minutes of traffic. Diego Tel agrees to indemnify
VIVA for any liability VIVA incurs in the event Diego Tel's Certification is
different than that determined by the audit.
5. CHARGES AND PAYMENT TERMS
(A) Taxes Diego Tel acknowledges and understands that all charges stated in
Service Schedules are computed by VIVA exclusive of any applicable use, excise,
gross receipts, sales and privilege taxes, duties, fees or other taxes or
similar liabilities (other than general income or property taxes), whether
charged to or against VIVA or Diego Tel because of the Service furnished to
Diego Tel ("Additional Charges"). Such additional Charges shall be paid by Diego
Tel in addition to all other charges provided for herein.
(B) Modification of Charges VIVA reserves the right to eliminate Services and/or
modify charges for Services, upon not less than thirty (30) days prior notice to
Diego Tel for international Services, which notice will state the effective date
for the elimination or modification.
(C) Charges and Payment Terms VIVA billings for Service are made on a weekly
basis (or such other basis as may be mutually agreed to by the parties)
following Start of Service. Service shall be billed at the rates set forth on
the Service Requests. Diego Tel will pay each VIVA invoice for Service within
five (5) business days of the invoice date set forth on each VIVA invoice to
Diego Tel ("Due Date"). All payments due hereunder shall be made in U.S. dollars
via wire transfer or other such method(s) as may be specified by VIVA from time
to time. If payment is not received by VIVA on or before the Due Date, Diego Tel
shall also pay a late fee in the amount of the lesser of one and one-half
percent (1 1/2%) of the unpaid balance of the Service charges per month or the
6
CONFIDENTIAL INFORMATION
maximum lawful rate under applicable law.
(D) Billing Disputes Notwithstanding the foregoing, Diego Tel may deduct from
VIVA Service billings for amounts reasonably disputed by Diego Tel, provided
Diego Tel: (i) pays all undisputed charges on or before the Due Date, (ii)
presents a written statement of any billing discrepancies to VIVA in reasonable
detail on or before the Due Date of the invoice in question, and (iii)
negotiates in good faith with VIVA for the purpose of resolving such dispute. In
the event such dispute is resolved in favor of VIVA, Diego Tel agrees to pay
VIVA the disputed amounts together with any applicable late fees within five (5)
days of the resolution. VIVA and Diego Tel agree to make good faith efforts to
promptly resolve any billing disputes. In the event that any dispute cannot be
resolved between the parties, then it shall be settled by arbitration pursuant
to the provisions of Section 16(C) hereof. VIVA shall not be obligated to
consider any Diego Tel notice of billing discrepancies which are received by
VIVA more than ninety (90) days from the Due Date of the invoice in question. In
the event that Diego Tel fails to pay an invoice in full because of a billing
dispute, VIVA shall have the right after giving Diego Tel five (5) days prior
notice, to suspend all or any portion of the Service to Diego Tel until such
time as the dispute is resolved.
(E) Suspension of Services In the event payment in full is not received from
Diego Tel by the Due Date, VIVA shall also have the right, after giving Diego
Tel five (5) days prior notice, to suspend all or any portion of the Service to
Diego Tel until such time as Diego Tel has paid in full all charges then due,
including any late fees. Following such payment VIVA shall be required to
reinstated Service to Diego Tel only upon the provision by Diego Tel to VIVA of
satisfactory assurance (such as a deposit) of Diego Tel's ability to pay for
Service and Diego Tel's advance payment of the cost of reinstituting Service. If
Diego Tel fails to make such payment by a date determined by and acceptable to
VIVA, Diego Tel will be deemed to have canceled the Service suspended effective
as of the date of such suspension. Such cancellation shall not relieve Diego Tel
payment liability for the unexpired portion of the Minimum Service Term relevant
to the canceled Service in question.
(F) Credit Diego Tel's execution of this Agreement signifies Diego Tel's
acceptance of VIVA initial and continuing credit approval procedures and
policies. VIVA reserves the right to withhold initiation or full implementation
of Service under this Agreement pending initial satisfactory credit review and
approval thereof which may be conditioned upon terms specified by VIVA,
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 VIVA at any time, Diego Tel agrees to provide financial statements or
other indications of financial circumstances. In addition, as may be determined
by VIVA in its sole discretion at any time, if the financial circumstances,
payment history or credit exposure of Diego Tel is or becomes unacceptable, VIVA
may require a new or increased deposit, guarantee or irrevocable letter of
credit, at VIVA's option, to secure Diego Tel payments for the term of the
Agreement. Failure of Diego Tel to provide the requested security within five
(5) days after demand by VIVA shall permit VIVA to suspend service and/or
terminate
7
CONFIDENTIAL INFORMATION
this Agreement without further notice.
6. WARRANTY. VIVA will use reasonable efforts under the circumstances to
maintain its overall network quality. The quality of Service provided hereunder
shall be consistent with other common carrier industry standards, government
regulations and sound business practices.
VIVA MAKES 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.
7. CONTINUING RELATIONSHIP AND TERMINATION. This Agreement and the relationship
of the Parties may be terminated in accordance with applicable provisions hereof
and/or the occurrence of any of the following events which shall constitute a
default:
(A) VIVA may terminate this Agreement in the event:
(1) Diego Tel fails to make any payment when due and fails to cure such default
within five (5) days after receipt of notice of such default; or
(2) Diego Tel fails to furnish security within five (5) days after demand by
VIVA pursuant to Section 5(F) hereof.
(B) A party may terminate this Agreement in the event of:
(1) A material breach of this Agreement by the other party (other than as
specified in Section 7(A) above) which is not cured by the breaching party
within fourteen (14) days after receipt of notice of such default;
(2) The adjudication of bankruptcy of the other party under army Federal, state
or municipal bankruptcy or insolvency act, or the appointment of a receiver
or any act or action constituting a general assignment by such other party
of its proprieties and interest for the benefit of its creditors; or
(3) 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.
8. LIABILITY AND INDEMNITY.
(A) Limited Liability. IN NO EVENT WILL ETHER PARTY HERETO BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES, INCLUDING WITHOUT LIMITATION,
8
CONFIDENTIAL INFORMATION
LOSS OF REVENUE, LOSS OF DIEGO TEL'S OR CLIENTS, LOSS OF GOODWILL OR LOSS OF
PROFITS ARISING IN ANY MANNER FROM THIS AGREEMENT, THE SERVICE OR THE
PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) Indemnity In the event parties other than Diego Tel (e.g., End Users and/or
their Diego Tels) shall have use of the Service through Diego Tel, then Diego
Tel agrees to forever indemnify and hold VIVA, its affiliated companies and any
third-party provider or operator of facilities employed in provision of the
Service harmless from and against any and all claims, demand, suits, actions,
losses, damages, assessments or payments which may be asserted by said parties
arising out of or relating to any defect in the Service.
9. FORCE MAJEURE. If either party's performance of this Agreement or any
obligation 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 out, storm or other similar occurrence, any law,
order, regulation, direction, action or request of the Mexico or United States
government or state or local government, or of any department, agency,
commission, court, bureau, corporation or other. instrumentality of any one or
more said governments, or of 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 restriction or interference. Such party shall 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. Notwithstanding the foregoing, this provision may not be invoked with
respect to any event listed in Section 7 or to excuse or delay performance of
Sections 5(C), 5(E) or (F).
10. INTERNATIONAL SERVICE. Except with respect to Switched Service specifically
designated as interstate Service or intrastate Service, the rates provided to
Diego Tel in a Service Schedule are applicable only to Switched Service if such
Service is used for carrying international telecommunications (i.e., Service
subject to the jurisdiction of COFETEL and the Federal Communications
Commission). VIVA shall not be obligated to provide Switched Service with end
points within a single state or Switched Service which originates/terminates at
points both of which are situated within a single state. Where VIVA is
authorized to provide international service (i.e., telecommunications
transmission services subject to the jurisdiction of the international
regulatory authorities), VIVA will, at its option, provide international Service
pursuant to applicable state laws, regulations and applicable tariff, if any,
filed by VIVA with state regulatory authorities as required by applicable law.
11. NETWORK PROTECTION. In the event Diego Tel's Service traffic volumes result
in a lower than industry standard completion rate or otherwise adversely affect
the VIVA network (including, but not limited to a looping situation where Diego
Tel's traffic is delivered by VIVA to another carrier
9
CONFIDENTIAL INFORMATION
for termination and ultimately returned to VIVA), VIVA reserves the right to
block and refuse to accept such adverse traffic at any time, without prior
notice or liability.
12. NOTICES. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by: (i) prepaid first class
mail, (ii) facsimile or other means of electronic communication or (iii)
delivery as hereafter provided. Any such notice or other communication, if
mailed by prepaid first-class mail at any time other than during a general
discontinuance of postal service due to strike, lockout or otherwise shall be
deemed to have been received on the fourth business day after the postmarked
date thereof, or if sent by facsimile or other means of electronic
communication, shall be deemed to have been received on the date of
transmission, provided that a hard copy is immediately sent by prepaid first
class mail as aforesaid; or if delivered by hand, shall be deemed to have been
received at the time it is delivered to the applicable address noted below
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice, of change of address shall also be governed by this Section. In the
event of a general discontinuance of postal service due to strike, lock-out, or
otherwise, notices or other communications shall be delivered by hand or sent by
facsimile or other means of electronic communication and shall be deemed to have
been received in accordance with this Second Notices and other communications
shall be addressed as follows:
a) In the case of VIVA
Viva Servicios, S. de R.L. de C.V.
Blvd Agua Calente 4558,
22420 Tijuana, B.C. Mexico
b) In the case of Diego Tel:
Diego Tel, Inc.
5545 Shadow Lawn Drive
Sarasota, FL 34242
Office: (941) 349-3542
Facsimile: (941) 349-3546
c) Billing Address of Diego Tel: Same as Above
13. NO-WAIVER. No term or provision of this Agreement shall be deemed waived and
no breach or default 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
10
CONFIDENTIAL INFORMATION
for any different or subsequent breach or default.
14. PARTIAL INVALIDITY: GOVERNMENT ACTION.
(A) 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
term or provision shall be deemed to be deleted.
(B) Government Action Upon thirty (30) days prior notice, either party shall
have the right, without liability to the other, to cancel an affected portion of
the Service if any material rate or term contained herein and relevant to the
affected Service is substantially changed or found to be unlawful or the
relationship between the parties hereunder is found to be unlawful by order of
the highest court of competent jurisdiction to which the matter is appealed, the
Communications Commission, or other local, state or federal government authority
of competent jurisdiction within any country.
15. USE OF SERVICE. Upon VIVA acceptance of a Service Schedule hereunder, VIVA
will provide the Service specified therein to Diego Tel upon condition that the
Service shall not be used for any unlawful purpose. The provision of Service
will not create a partnership or joint venture between the parties or result in
a joint communications service offering to the third parties.
16. CHOICE-OF LAW: FORUM AND ARBITRATION
(A) Law This Agreement shall be construed under the laws of the Bahamas without
regard to choice of law principles.
(B) Forum Any arbitration, civil action or other legal proceeding arising out of
or relating to this Agreement or any dealings between Diego Tel, on the one
hand, and VIVA and/or VIVA officers, directors, employees, or agents on the
other hand, whether brought before or after any termination of this Agreement,
shall be brought and heard only in Nassau in the Bahamas, and the parties hereto
expressly waive any right under any law or rule to cause any such proceeding to
be brought or heard in any other location. Diego Tel consents to jurisdiction in
any court located in Nassau in the Bahamas in any other legal proceeding arising
out of or relating to this Agreement.
(C) Arbitration Any claim or controversy arising out of or relating to this
Agreement or any dealings between Diego Tel, on one hand, and VIVA and/or VIVA's
officers, directors, employees or agents, on the other hand, shall be resolved
by final and binding arbitration before J.A.M.S./ENDISPUTE ("JAMS") in
accordance with the then obtaining Comprehensive Arbitration Pules and
Procedures of JAMS, as modified herein. The arbitrator may not limit, expand or
otherwise modify the terms of this Agreement and shall not have authority to
award punitive or other non-compensatory damages to either party. In order to
provide an expeditious resolution of any dispute, the parties agree that: (i) if
the parties have not agreed on an arbitrator within ten (10) days
11
CONFIDENTIAL INFORMATION
after the date of commencement of the arbitration, JAMS shall designate a single
arbitrator and that designation shall be final and binding; and (ii) absent
extraordinary circumstances, the arbitration hearing shall begin within ninety
(90) days from the date of commencement of arbitration, and shall continue each
business day thereafter until completed. The award in such arbitration
proceeding may be entered in any Court specified in Section 16(B) of this
Agreement.
17. PROPRIETARY INFORMATION.
(A) Confidential Information The parties understand and agree that the terms and
conditions of this Agreement, all documents referenced (including invoices to
Diego Tel for Service provided hereunder) herein, communications between the
parties regarding this Agreement of the Service to be provided hereunder
(including price quotes to Diego Tel for any Service proposed to be provided or
actually provided hereunder) and all information regarding the Diego Tels of
Diego Tel, as well as such information relevant to any other agreement between
the parties (collectively "Confidential Information"), are confidential as
between Diego Tel and VIVA.
(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 carries
or prospective purchasers who have specifically agreed in writing to
non-disclosure 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 a party or its agents of
the foregoing provisions shall entitle the non-disclosing patty, at its option,
to obtain injunctive relief without a showing of irreparable harm or injury and
without bond.
(C) Press Release The parties further agree that any press release,
advertisement or publication generated by a party regarding this Agreement, the
Service provided hereunder or in which a party desires to mention the name of
the other party or 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 provisions of this Section 17 will be
effective as of the date of this Agreement and remain in full force and effect
for a period equal to the longer of (i) one (1) year following the effective
date of this Agreement; or (ii) one (1) year following the termination of all
Service hereunder.
18. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto. and their respective successors or assigns,
provided, however, that Diego Tel shall not assign or transfer its rights or
obligations under this Agreement without the prior written consent of VIVA,
which shall not unreasonably be withheld, and further provided that any
assignment or transfer without such consent shall be void.
12
CONFIDENTIAL INFORMATION
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, provisions for
arbitration, forum selection indemnification and the making of any and all
payments due hereunder.
(B) Headings Descriptive headings in the Agreement are for convenience only and
shall not affect the construction of this Agreement.
(C) Industry Terms Words having well-know technical or trade meanings shall be
so construed, and all listings of items shall not be taken to be exclusive, but
shall include other items, whether similar or dissimilar to those listed, as the
context reasonably requires.
(D) Rule of Construction No rule of construction requiring interpretation
against the draftsman hereof shall apply in the interpretation of this
Agreement.
(E) Legal Fees In any arbitration, civil action or other legal proceeding
arising out of or relating to this Agreement, the prevailing party shall be
awarded its costs and reasonable attorneys' fees.
(F) Place of Acceptance This Agreement shall be deemed to have been accepted and
entered into in Nassau in the Bahamas.
20. ENTIRE AGREEMENT. This Agreement consists of: (i) all the terms and
conditions contained herein; in executed Service Schedules that are identified
herewith; (ii) and all documents incorporated herein specifically by reference.
This Agreement constitutes the complete and exclusive statement of the
understandings 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 Diego Tel and VIVA.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
Viva Servicios, S. de R.L. de C. V., a Baja Diego Tel, Inc.,
California, Mexico, corporation a Nevada, USA, corporation
By: /s/ David L. Wallace By: /s/ David L. Wallace
---------------------------------- ----------------------------
David L. Wallace David L. Wallace
Its: President Its: President
13
CONFIDENTIAL INFORMATION
SERVICE SCHEDULE
(VIVA TERMINATION SERVICE)
[THE CONFIDENTIAL PORTION OF THIS DOCUMENT
HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.]
14
CONFIDENTIAL INFORMATION
THIS EXHIBIT A IS NOT TO BE DISCLOSED UNDER ANY CIRCUMSTANCES.
EXHIBIT A
[THE CONFIDENTIAL PORTION OF THIS DOCUMENT
HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.]