1
EXHIBIT 10.69
SPECIAL CUSTOMER ARRANGEMENT
FOR MCI WORLDCOM ON-NET SERVICES
This Special Customer Arrangement for MCI WorldCom On-Net Services (this
"Agreement") is made between MCI WORLDCOM Communications, Inc. for itself and
its U.S.-based affiliates and successors (together, "MCI WorldCom") and @Track
Communications, Inc. ("Customer") as of Customer's signature date below
("Contract Date"). The rates, charges, credits, and discounts contained in This
Agreement will be effective the first day of the second (2nd) full billing cycle
following the Contract Date and Customer's delivery of this Agreement to MCI
WORLDCOM (the "Effective Date").
================================================================================
1. Service Provisioning and Receipt. MCI WorldCom will provide to Customer
international, interstate, intrastate and local telecommunications services
pursuant to this Agreement to the extent permitted by law, as supplemented
by non-inconsistent price list and applicable tariff terms of MCI WORLDCOM
Communications, Inc., MCI WORLDCOM Network Services, Inc., and WorldCom
Technologies, Inc. and their U.S.-based affiliates and successors, including
the MCI WorldCom Tariff F.C.C. No. 1 (individually, a "Tariff" and
collectively, the "Tariffs"). This Agreement incorporates by reference the
terms of each such Tariff. These Tariffs may be modified from time to time
by MCI WorldCom in accordance with law and thereby affect the service
furnished to Customer. Capitalized terms not otherwise defined herein shall
have the meaning given them in the Tariffs.
2. Rates and Discounts. Except as expressly provided to the contrary, the rates
in this Agreement are in lieu of, and not in addition to, any other
discounts, promotions and/or credits (Tariffed or otherwise). Customer will
pay MCI WorldCom's Standard Tariffed Rates and charges for services and
charges not expressly referenced in this Agreement. Unless otherwise
expressly stated in Attachment A, the rates in this Agreement do not
include, and the discounts in this Agreement do not apply to, the following:
charges for services other than those in this Agreement; non-Tariffed
products; access or egress (or related) charges imposed by third parties;
standard Tariffed non-recurring charges and monthly recurring non-usage
charges; calling card surcharges (unless expressly set forth below); taxes,
tax-related, or tax-like surcharges; any other charge related to a
particular Service not expressly set forth in this Agreement; and other
Tariffed charges, all of which are additional and which Customer agrees to
pay in addition to the charges in this Agreement. All references to
"intrastate" and "interstate" contained in this Agreement refer to domestic
(within the United States) Services only. Any rounding of rates and charges
will be governed by the Tariff.
3. Detariffing. Until such time as any federal tariff or federal tariff
provisions incorporated herein by reference and made applicable to domestic
interstate or international service are canceled, service will be provided
pursuant to this Agreement to the extent permitted by law, as supplemented
by non-inconsistent tariff terms contained in the Company's federal tariffs
on file with the Federal Communications Commission. These federal tariffs
may be modified from time to time by the Company in accordance with law and
thereby affect the service furnished to Customer.
When any federal tariff or federal tariff provisions applicable to domestic
interstate or international service are canceled, service will be provided
pursuant to this Agreement, as supplemented by any non-inconsistent product
descriptions, definitions, prices and other terms and conditions contained
in a Company "Service Publication and Price Guide" ("Publication"). This
Publication shall be deemed to be incorporated herein by reference, will be
maintained on a Company Internet web-site (xxx.xxxx.xxx) accessible by, and
available to, Customer at all times, and may be modified by the Company from
time to time and thereby affect the service furnished to Customer.
If enforcement of any modification made by Company to the Publication
affects Customer in a material and adverse manner, Customer, as its sole
remedy, may discontinue the affected service without liability (except for
payment of all charges incurred up to the time of service discontinuance) by
providing the Company with written notice of discontinuance. To exercise
this remedy, the Company must receive written notice within thirty (30) days
of Customer's first learning of the Company's enforcement. The Company may
avoid service discontinuance if, within thirty (30) days of receipt of
Customer's written notice, it agrees to amend this Agreement to eliminate
the applicability to Customer of the relevant Publication provision. If a
service is disconnected hereunder, the Customer's minimum volume
requirement(s) will be reduced, as appropriate, to accommodate the
discontinuance. A "material and adverse change" shall not include, nor be
interpreted to include: (1) the introduction of a new service or any new
service feature associated with an existing service, including all terms,
conditions and prices relating thereto; (2) an adjustment (either an
increase or a reduction) of a published underlying service price not
expressly fixed in this Agreement; or (3) the introduction or revision of
charges established and published by the Company to recover costs imposed on
it by a governmental or quasi-governmental authority. Domestic intrastate
service will be provided pursuant to requirements imposed by state law or
regulatory authorities.
4. Tariff Option. MCI WorldCom will, if required, file a Tariff option (a
"Tariff Option") consistent with the terms of Attachment A, which is
incorporated into this Agreement.
5. Confidential Information. Customer will not disclose to any third party
during the Term, or during the three (3) year period after expiration or
termination of this Agreement, any of the terms and conditions of this
Agreement unless that disclosure is lawfully required by any federal
governmental agency or is otherwise required to be disclosed by law or is
necessary in any legal proceeding establishing rights and obligations under
this Agreement. MCI WorldCom reserves the right to terminate this Agreement
by giving written notice to Customer if there is any unpermitted disclosure.
6. Governing Law. This Agreement and any cause of action arising out of this
Agreement are subject to the Communications Act of 1934, as amended (the
"Act"), or, if any part of this Agreement is not governed by the Act, by the
domestic law of the State of New York without regard to its choice of law
principles.
7. Notices. All notices, requests, or other communications (excluding invoices)
hereunder will be in writing and either transmitted via telefacsimile,
delivered by hand, delivered via overnight courier, or addressed and sent by
certified or registered mail, postage prepaid and return receipt requested
to the parties at the addresses below or any other telephone numbers and/or
addresses as may be specified by written notice. All notices will be
effective when received, or, if delivered by certified or registered mail,
five days after posting.
Notice To: With a copy to: And to Customer:
MCI WorldCom MCI WorldCom @Track Communications
000 X. Xxxxxxxx Xxxxxx 0000 Xxxxxxxxxx 0000 Xxx Xx., Xxx 000
Xxxxx 0000 Xxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Xxxxxxx, XX 00000 Attn: Branch Director Attn: Gen'l Counsel
Attn: Legal Director Fax: 000-000-0000
8. Severability. All provisions of this Agreement are severable, and the
unenforceability or invalidity of any of the provisions will not affect the
validity or enforceability of the remaining provisions. The remaining
provisions will be construed in such a manner as to carry out the full
intention of the parties. Section titles or references used in this
Agreement will have not substantive meaning or content and are not a part of
this Agreement.
9. Entire Agreement. This Agreement, together with the Tariffs, constitutes the
entire agreement between the parties with respect to its subject matter and
supersedes all other representations, understandings, or agreements that are
not fully expressed herein, whether oral or written. Except for Tariff
modifications initiated by MCI WorldCom, no amendment to this Agreement will
be valid unless in writing and signed by both parties.
10. Waiver. No waiver of any of the provision of this Agreement will be binding
unless it is in writing and signed by the party making the waiver. No waiver
will be deemed or will constitute a waiver of any other provision, whether
or not similar, and no waiver will be deemed, or will constitute, a
continuing waiver.
11. Acceptance Deadline. This Agreement will be of no force and effect and the
offer contained in this Agreement will be withdrawn unless this Agreement is
signed by Customer and delivered to MCI WorldCom on or before September 30,
2000.
The parties have executed this Agreement by their authorized representatives
as of the dates below.
================================================================================
MCI WORLDCOM COMMUNICATIONS, INC. @TRACK COMMUNICATIONS, INC.
000 Xxxxxxx Xxxxxx Xxxxx 0000 Xxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxxxx, XX 00000
By : /s/ Xxxx XxXxxxx By : /s/ Xxxx Xxxxxxxxx Xxxx
------------------------- --------------------------
Name : Xxxx XxXxxxx Name : Xxxx Xxxxxxxxx Xxxx
Title : Vice President, Finance Title : President & CEO
Date : 10/23/00 Date : 9/29/00
-- MCI CONFIDENTIAL --
2
ATTACHMENT A TO SPECIAL CUSTOMER ARRANGEMENT
[TEXT HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE
OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC.]
ATTACHMENT A-1
-- MCI WORLDCOM CONFIDENTIAL --
