Exhibit 10.7
Form SB-2
Skypath Networks, Inc.
[GRAPHIC OMITTED]
This Telecommunications Services Agreement ("Agreement") is made this ______ day
of _______________, 2002, by and between Xxxxxxxx Communications, LLC, a
Delaware limited liability company ("Xxxxxxxx"), and Sky Path Networks, Inc., at
X.X. Xxx 0000, Xxxxxxxxxx, XX 00000, a Delaware Corporation ("Customer").
1. Services. Customer agrees to purchase from Xxxxxxxx and Xxxxxxxx, itself or
through an affiliate, agrees to provide telecommunications services as specified
in accepted Service Orders, according to the terms and conditions in this
Agreement. Xxxxxxxx provides specified Services in accordance with its
applicable Service Schedules in effect at the time Service is ordered, which may
be attached or separately executed. All Services are subject to availability and
approval of Customer's credit by Xxxxxxxx.
2. Incorporated Materials. Customer affirms that it has reviewed and assented to
all material posted on Xxxxxxxx' Customer Service Website to which this
Agreement refers, and agrees to be bound to those terms and conditions as if
fully set forth herein.
3. Effective Date and Term. This Agreement shall become effective on the date
written above ("Effective Date"), shall continue for five years from the
Effective Date, and shall then automatically renew for successive one-year
periods ("Renewal Terms"), unless either party gives written notice to the other
party of non-renewal, such notice to be delivered at least sixty (60) calendar
days before the end of the Term or the Renewal Term.
4. Payment Terms and Charges. All amounts stated on each monthly invoice are due
and payable within thirty (30) calendar days of the date of the invoice ("Due
Date"). Customer agrees to remit payment via Automated Clearinghouse ("ACH") or
wire transfer to Xxxxxxxx Communications, LLC in care of: Bank of Oklahoma,
Tulsa, Ok, ABA # 000000000, Account # 010649443 (Xxxxxxxx Communications, LLC),
or such other bank or account as Xxxxxxxx may in writing direct Customer to
remit payment. In the event Customer fails to make full payment of undisputed
amounts by the Due Date, Customer shall also pay a late fee in the amount of the
lesser of (i) one and one-half percent (1 1/2 %) per month or (ii) the maximum
lawful monthly rate under applicable state law, of the unpaid balance which
amount shall accrue from the Due Date ("Late Fee"). Xxxxxxxx may make billing
adjustments: for On-Net Services for a period of one (1) year after the date a
Service is rendered, and for Third Party Services for a period of two (2) years
after the date a Service is rendered.
5. Billing Disputes. (a) Upon disputing any charges, Customer shall: (i) pay all
undisputed charges by the Due Date; (ii) present by the Due Date a written
statement of amounts disputed in good faith in reasonable detail with supporting
documentation; and, (iii) negotiate in good faith to resolve any dispute within
sixty (60) calendar days. (b) Disputed charges mutually agreed upon and in favor
of Xxxxxxxx, with a Late Fee, will be paid within five (5) business days of the
resolution. Disputed charges mutually agreed upon and in favor of Customer will
be credited to Customer and no late fees shall apply. (c) If the Parties fail to
resolve the dispute within the sixty day period (unless Xxxxxxxx agrees to
extend such period), all disputed amounts and a Late Fee will be due and payable
on the sixtieth (60th) day following the Due Date.
6. Right to Assurance. If a Customer suffers a material adverse change in its
financial condition, Xxxxxxxx may: (a) request adequate assurance of Customer's
performance per applicable law; or, (b) decline to accept a Service Order.
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7. Default, Suspension of Service, and Termination. A "Default" shall occur if
(a) Customer fails to make payment as required under this Agreement; or (b)
either party fails to perform or observe any material term or obligation
contained in this Agreement, (other than (i) Customer's obligation to make
payment or (ii) Xxxxxxxx' obligation to provide Service in accordance with the
applicable Technical Specifications which is not a default but entitles Customer
to exclusive remedies) and any such failure remains uncorrected for fifteen (15)
calendar days after written notice from the non-defaulting party. If Customer
uses the Services for any unlawful purpose or in any unlawful manner, or
violates Xxxxxxxx' Acceptable Use Policy posted on Xxxxxxxx' website, Xxxxxxxx
shall have the right immediately to suspend and/or terminate any or all Services
hereunder without notice to Customer. In the event of a Customer Default for any
reason, Xxxxxxxx may: (i) suspend Services to Customer; (ii) cease accepting or
processing orders for Services; (iii) withhold delivery of Call Detail Records
(if applicable); and/or (iv) terminate this Agreement. If this Agreement is
terminated because of a Customer Default, such termination shall not affect or
reduce Customer's minimum monthly commitments required under this Agreement, if
applicable; and, all Early Termination Charges shall apply. Xxxxxxxx shall at
all times be entitled to all rights available to it at law or in equity; and,
Customer agrees to pay Xxxxxxxx' reasonable expenses (including attorney and
collection agency fees) incurred in the enforcement of Xxxxxxxx' rights in the
event of a Customer Default. In the event of a Xxxxxxxx' Default, Customer's
sole and exclusive remedy shall be termination of the Agreement and receipt of
any applicable refund. Customer will, however, remain liable for all charges
incurred for Services provided prior to Customer's termination of this
Agreement.
8. Taxes. If any taxes (excluding taxes based on Xxxxxxxx' net income or capital
or any property taxes but not Universal Service Fund charges), fees, surcharges,
or other charges or impositions are asserted against Xxxxxxxx as a result of
Xxxxxxxx' sale of Services or Customer's use of Services by any local, state,
national, international, public or quasi-public governmental entity or foreign
government or its political subdivision, including without limitation, any tax
or charge levied to support the federal Universal Service Fund contemplated by
the Telecommunications Act of 1996, or any state or foreign equivalent
("Additional Charges"), Customer agrees to pay any such Additional Charges,
together with a one percent (1%) administrative fee, and indemnify Xxxxxxxx from
for any liability or expense associated with such Additional Charges.
9. Limitation of Liability. IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR ANY
FAILURE OF THE SERVICES, WHATSOEVER, NEITHER XXXXXXXX NOR ANY XXXXXXXX' PROVIDER
SHALL BE LIABLE FOR ANY DIRECT (except for express remedies specified in this
Agreement), INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR
ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER,
EVEN IF XXXXXXXX OR THE XXXXXXXX' PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE OR LOSS.
10. Warranty and Disclaimer of Warranty. Xxxxxxxx WARRANTY AND DISCLAIMER OF
WARRANTY WITH RESPECT TO ANY SERVICE IS SET FORTH ON THE APPLICABLE SERVICE
SCHEDULE. XXXXXXXX DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. No warranty is made or passed on with respect to any
Third Party Services.
11. Terms and Execution. This Agreement includes the additional provisions
stated on the reverse side of this page. The signatures below represent the
parties' agreement to be bound as set forth in this Agreement.
CUSTOMER: XXXXXXXX COMMUNICATIONS, LLC:
By: By:
Printed Name: Printed Name:
Title: Title:
Date: Date of Signature:
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12. Exclusive Remedies. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the sole and exclusive
remedies available to Customer at law or in equity.
13. Compliance with Law. Use of the Services shall be in accordance, and comply,
with all applicable laws, regulations, and rules. Customer shall obtain all
approvals, consents and authorizations necessary to conduct its business and
initiate or conduct any transmissions over any facilities covered by this
Agreement.
14. Indemnity. (a) Customer and Xxxxxxxx shall defend, indemnify and hold
harmless the other from and against any and all claims for damage to tangible
property or bodily injury, including claims for wrongful death, to the extent
that such claim arises out of the negligence or wrongful misconduct of the
respective indemnifying party, its employees, agents, or contractors in
connection with this Agreement or the provision of Services hereunder. (b)
Customer will defend, indemnify and hold harmless Xxxxxxxx and its officers,
directors, employees, contractors and agents from and against any loss, debt,
liability, damage, obligation, claim, demand, judgment or settlement of any
nature or kind, known or unknown, liquidated or unliquidated, including without
limitation, all reasonable costs and expenses incurred including all reasonable
litigation costs and attorneys' fees arising out of, resulting from or based
upon any complaint, claim, action, proceeding or suit of any third party based
upon an alleged defect in or failure of Service, failure to obtain approval,
consent, or authorization, or based on Customer's violation of any law or any
rule or regulation.
15. Force Majeure. Xxxxxxxx may adjust or suspend its performance to the extent
performance is beyond Xxxxxxxx' reasonable control for reasons including,
without limitation, Acts of God, fire, explosion, atmospheric conditions such as
rain fade, cable cut, governmental action, or national emergencies, war, riot,
insurrection, terrorism, vandalism, or labor difficulties such as work
stoppages, strikes, or lockouts.
16. Proprietary Information. Except as required by law or stock exchange rule,
the terms and conditions of this Agreement and all documents referenced herein
including invoices are confidential and shall not be disclosed without prior
written consent of the other.
17. Interstate Service Representation. Unless Xxxxxxxx specifically offers an
intrastate Service as set forth in an applicable Service Schedule, Xxxxxxxx
requires that more than ten percent (10%) of the transmissions on each circuit
shall be interstate transmissions or foreign transmissions as those terms are
defined in 47 U.S.C. Sections 153(17) and 153(22). Xxxxxxxx and its affiliates
shall not be obligated to make available intrastate Service, e.g., any Service
on a circuit with end points within a single state or service on a circuit which
originates/terminates at points both of which are situated within a single state
unless Customer represents in writing that such interexchange Service or
circuits shall be used to carry more than ten percent (10%) interstate or
foreign telecommunications. If it is determined at any time that such Service or
circuit is subject to regulation by a U.S. State regulatory agency, the Service
or circuit may be provided by Xxxxxxxx or its affiliates pursuant to applicable
state laws, regulations and applicable tariffs, or Xxxxxxxx and its affiliates
may discontinue provision of the affected Service or circuit.
18. Third Party Services. Xxxxxxxx may arrange on behalf of Customer for
services to be provided by a third party ("Third Party Services"), such as local
access Services, off-net interexchange services, or third party provided
international service. Local access services are subject to Section 19 below.
When Customer requests international service, Xxxxxxxx may arrange for the
foreign end of the Service or for a portion of the foreign end of the Service to
be provided by a third party carrier licensed in the relevant foreign point. In
some cases, Xxxxxxxx may be unable to, and Customer may be required to, arrange
the foreign end of such Service with a foreign carrier. Although this Agreement
governs the terms of Xxxxxxxx' arrangement of Third Party Service, the service
level parameters and related warranties (if any), pricing, surcharges, outage
credits, required commitments, termination liability, limitations, and other
service-specific terms of the Third Party Service shall be those of the provider
of the Third Party Services ("Third Party Provider").
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19. Ordering Local Access Service. (a) Customer shall execute a Letter of
Agency, in a form provided by Xxxxxxxx, authorizing Xxxxxxxx to interact
directly with local access provider(s) to obtain the local access Service. (b)
Customer shall pay all charges including, without limitation, monthly charges,
usage charges, installation charges, non-recurring charges, or applicable
termination/cancellation charges, of the local access provider(s). (c) When
Xxxxxxxx orders local access Services for Customer, Xxxxxxxx shall provision and
coordinate the installation of the Service, and conduct the initial testing of
an interconnection between the Xxxxxxxx' Service and the local access Service.
(d) Local access Service ordered by Xxxxxxxx shall accrue at the then-current
tariff rate (or the standard published rate, if there is no tariff rate) of the
Service provider; and any changes in that rate will be passed through to the
Customer. (e) When Xxxxxxxx orders local access Services, Xxxxxxxx will not
begin billing Customer for local access Services until related Xxxxxxxx Services
are turned up. (f) Customer may order its own local access Services from a
vendor who has established entrance facilities in a Xxxxxxxx' point of presence
or other vendors with Xxxxxxxx' prior written permission. (g) When Customer
orders its own local access Service, its provider shall directly xxxx Customer
for Services. In addition, Xxxxxxxx may charge Customer for any associated
entrance facility or mileage charges if it provides carrier facility assignment
("CFA") to Customer. (h) Customer shall ensure that the Customer-ordered local
access Services are turned up at the same time as the Xxxxxxxx' Services and
shall be obligated to pay for Xxxxxxxx' Services regardless of whether the
Customer ordered local access Services are ready. (i) Xxxxxxxx shall not be
obligated to provision any local access Service except in connection with a
Service Order for Xxxxxxxx' on-net Services.
20. Disconnection. Customer may disconnect any Service after installation by
providing written notification to Xxxxxxxx sixty (60) days in advance of the
effective date of the disconnection and paying to Xxxxxxxx an "Early Termination
Charge" in an amount equal to the monthly recurring charges associated with the
Service Term less any monthly recurring charges already paid, any non-recurring
payments not yet paid by Customer, and any termination liability associated with
local access Service or any other Third Party Service.
21. Provisioning. Xxxxxxxx' Service Order provisioning process is found at
xxxx://xxx.xxxxxxxxxxxxxxxxxxxxxx.xxx/xxxxxxx/xxxxxxxx-xxxxxxx/xxxxxxxx-xxxxxxx.
html.
22. Miscellaneous. (a) Customer shall not assign or otherwise transfer its
rights or obligations under this Agreement without the prior written consent of
Xxxxxxxx, which shall not be unreasonably withheld. (b) This Agreement shall be
governed by the laws of the State of New York without regard to choice of law
principles. (c) No rule of construction requiring interpretation against the
draftsman hereof shall apply in the interpretation of this Agreement. (d) The
provisions of this Agreement are for the benefit only of the parties hereto, and
no third party may seek to enforce or benefit from these provisions. (e) If any
term or provision of this Agreement shall be determined to be invalid or
unenforceable by a court or body of competent jurisdiction, then: (i) both
parties shall be relieved of all obligations arising under such provision and
this Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it valid and enforceable while preserving its intent; and (ii)
the remainder of this Agreement shall be valid and enforceable. (f) The failure
of either party to enforce any provision hereof shall not constitute the
permanent waiver of such provision (g) No termination of this Agreement shall
affect the rights or obligations of either party: (i) with respect to any
payment for Services rendered before termination; or (ii) pursuant to other
provisions of this Agreement that, by their sense and context, are intended to
survive termination of this Agreement, including without limitation,
indemnification and limitation of liability. (h) This Agreement, appurtenant
schedules and service orders, consist of all the terms and conditions contained
herein. This Agreement constitutes the complete and exclusive statement of the
understanding between the parties and supersedes all proposals and prior
agreements (oral or written) between the parties relating to Services provided
hereunder. (i) Customer represents that it is a telecommunications carrier under
the Communications Act of 1934, as amended or under the laws of the jurisdiction
where it operates. (j) Customer acknowledges that the provisioning of interstate
telecommunications services by Xxxxxxxx to Customer for resale is conditioned
upon Customer's submission of a copy of its FCC Registration Information (Blocks
1 & 2 of the Telecommunications Reporting Worksheet, FCC Form 499-A) or FCC
Filer 499-A Identification number to Xxxxxxxx, evidencing that Customer has
properly registered with the Federal Communications Commission ("FCC").
05/15/2002
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