EXHIBIT 10.9
INTERNET TELEPHONY SERVICE AGREEMENT
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This Service Agreement ("Agreement") is made as of the 1st day of June,
1999 ("Effective Date"), by and between Intercomm Americas, Inc. (IAI),
(Service Provider) with its principal office at 0000 Xxxxxxxxxx, Xxx.
0000, Xxxxxxx, Xxxxx 00000, and NetVoice Technologies, Inc., (NVT) with
its principal office at 00000 Xxxxxxxx Xx., Xxx. 000, Xxxxxx, XX 00000,
hereinafter called ("CUSTOMER").
WHEREAS, Service Provider is in the business of providing internet
telecommunications services and
WHEREAS CUSTOMER desires to use such internet telecommunications services
from Service Provider.
NOW, THEREFORE, the parties agree as follows:
1. SERVICES. IAI agrees to furnish CUSTOMER telecommunications
services set forth in Exhibit A and Exhibit B to this Agreement, at
the rates set forth therein and subject to the terms and conditions
contained in this Agreement.
2. TERM. The term of this Agreement shall commence on the Effective
Date and will continue for a period of one (1) year. This Agreement
can be terminated if either party notifies the other party in
writing not less that sixty (60) days prior to the termination date
of it's desire to terminate this Agreement.
3. CHARGES AND PAYMENT.
All Usage Charges for services provided by IAI under this Agreement
are set forth in Exhibit A, which charges are subject to change as
hereinafter provided.
All Usage Charges for services provided under this Agreement will be
billed weekly. With each invoice IAI shall provide complete call
detail recording to CUSTOMER to facilitate CUSTOMER's billing to its
carrier accounts.
CUSTOMER shall remit payment to IAI via wire transfer within 2
business days of receipt of payment from CUSTOMER's carrier accounts.
IAI warrants that the invoices to CUSTOMER will accurately reflect
call usage so as to not cause undue payment delays from its carrier
accounts and furthermore IAI will not hold CUSTOMER liable for
payment of invoices until CUSTOMER has fully received payment from
its carrier accounts. In the event carrier account defaults, IAI
will have no claim or warrants against CUSTOMER for said traffic.
Payments from CUSTOMER to IAI shall be to:
Bank One Texas NA, ABA Routing #000000000
Houston, Texas
For further credit or the benefit of
INTERCOMM AMERICAS INC., Acct#1560950774
Initials: MM FPR 1
4. TAX EXEMPTION CERTIFICATE. Should CUSTOMER claim an exemption from
any sales, use, or other tax, the CUSTOMER shall provide such
exemption information to IAI. It will be the responsibility of
CUSTOMER to make sure that its proof of exempt status remains
current. In no event shall IAI be liable for any taxes due by
CUSTOMER and CUSTOMER hereby indemnifies IAI against any such claims
for taxes by any tax in authority or party acting on behalf of such
taxing authority.
5. LIMITATION OF LIABILITY IAI'S LIABILITY HEREUNDER IS LIMITED TO
DIRECT DAMAGES ONLY. IAI WILL NOT BE RESPONSIBLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. IAI
SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS, COST OR EXPENSE
ARISING FROM THE DELAY OF ANY TELEPHONE OPERATING COMPANY, LOCAL
EXCHANGE CARRIER, OR ANY OTHER THIRD PARTY, ABSENT GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT ON THE PART OF IAI.
6. INDEMNIFICATION. CUSTOMER hereby indemnifies and holds harmless
IAI, its affiliates, their respective officers, directors,
shareholders, employees, agents, successors and assigns, and each of
them, from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs of expenses,
whether accrued, absolute, contingent or otherwise, including but
not limited to court costs and attorney's fees, which any of the
foregoing may incur or to which any of the foregoing may be
subjected, arising out of or otherwise based upon any of the
following:
6.1 Any breach or default by CUSTOMER under any of the provisions
of this Agreement or of any other agreement or instrument to
which IAI or an affiliate is a party or which is in favor of
IAI or an affiliate of IAI;
6.2 Claims of any third person or entity for libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service xxxx arising out of material, data,
information, or other content transmitted by CUSTOMER over
IAI's networks; or
6.3 Any act or omission of CUSTOMER or its agents, servants,
employees, contractors, or representatives.
For purposes of this Agreement, an "affiliate" of IAI includes any
person or entity controlling, controlled by or under common control
with IAI.
7. SUSPENSION OF SERVICE; TERMINATION OF AGREEMENT. In the event CUSTOMER:
a. Breaches any provision of this Agreement including but not
limited to the provisions regarding payment; or
b. Files or initiates proceedings or has proceedings filed or
initiated against it, relating to its liquidation, insolvency,
reorganization or 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
Initials: MM FPR 2
agreement for the composition, extension or readjustment of its
obligations in connection with the foregoing;
Then IAI may, upon notice to CUSTOMER, at the IAI's option and in
addition to such other rights or remedies as it may have under this
Agreement, at law or in equity, without incurring any liability: (i)
suspend service to CUSTOMER until such time that such circumstance
is corrected (provided IAI shall not be prohibited from terminating
this Agreement after suspending service); (ii) declare all charges
that have been billed to CUSTOMER by IAI to be immediately due and
payable, provided said carrier accounts have been paid and are
current to CUSTOMER; or (iii) terminate this Agreement.
8. CROSS DEFAULT/CROSS TERMINATION. IAI, at its option, may also
terminate services provided to CUSTOMER under this Agreement upon at
least (30) days notice to CUSTOMER, in addition to such other rights
or remedies as IAI may have under any agreement, at law or in
equity, in the event CUSTOMER or any affiliate of CUSTOMER breaches
any provision of any other agreement or instrument with or in favor
of IAI or any affiliate of IAI.
9. FORCE MAJEURE. Notwithstanding anything to the contrary herein, IAI
shall not be liable to CUSTOMER or any other person or entity for
damages, or deemed to be in breach of this Agreement, due to causes
outside of IAI's reasonable control, including, without limitation,
acts of God, fire, explosion, vandalism, storm or other natural
occurrences; any law, order, regulation, direction, action or
request of the United States government or of any government
(including without limitation, state and local governments having
jurisdiction over any of the parties) or of any department, agency,
commission, court, bureau, corporation or other instrumentality of
any one or more of such governments, or of any civil or military
authority; national emergencies; insurrection; riots; wars; strikes,
lockouts, work stoppage or other such labor difficulties; or any act
or omission of any other person or entity.
10. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns. CUSTOMER may not assign, delegate, or transfer
any of its rights or obligations hereunder without the prior written
consent of IAI. For purposes hereof, the following also constitutes
an assignment: (a) any merger, consolidation or reorganization to
which CUSTOMER is a party, (b) the sale or transfer of all or
substantially all the assets of CUSTOMER, or (c) the sale, issuance
or transfer of any voting securities of CUSTOMER which results in a
change in control of CUSTOMER.
11. WAIVER. The delay or failure of IAI to enforce insist upon
compliance with any of the terms or conditions of this Agreement or
to exercise any remedy provided herein, the waiver of any term or
condition of this Agreement, or the granting of an extension of time
for performance shall not constitute the permanent waiver of any
term, condition or remedy of or under this Agreement, and this
Agreement and each of its provision shall remain at all times in
full force and effect unless and until modified as provided herein.
12. NOTICES. All notices required by this Agreement shall be assumed to
have been delivered when sent in a sealed envelope, postage prepaid
and sent either express or overnight delivery or registered or
certified mail, return receipt requested and addressed to each party
as follows:
Initials: MM FPR 3
If to IAI: Intercomm Americas, Inc.
0000 Xxxxxxxxxx, Xxx. 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
If to CUSTOMER: NetVoice Technologies, Inc.
00000 Xxxxxxxx Xx.,Xxx. 101
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
13. SEVERABILITY. If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be
determined to any extent to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term,
covenant, or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be
affected by such determination.
14. SURVIVAL. The covenants and agreements of CUSTOMER contained in
this Agreement with respect to payment of amounts due and
indemnification shall survive any termination of this Agreement.
15. HEADINGS. Headings contained herein are provided for convenience
and reference only and do not affect or limit the interpretation,
contents or terms of this Agreement.
16. GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE VALIDITY AND
PERFORMANCE HEREOF SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF TEXAS AND CUSTOMER HEREBY CONSENTS TO THE JURISDICTION OF
THE COURTS OF SAID STATE WITH RESPECT TO ANY DISPUTE, CONTROVERSY OR
OTHER MATTER RELATING TO OR ARISING OUT OF THIS AGREEMENT.
17. EXECUTION. This Agreement may be executed in counterparts and each
of such counterparts shall, for all purposes, be deemed to be an
original but all together only one Agreement.
18. THIRD PARTIES. Nothing contained in this Agreement or in any
instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be
deemed to have been executed for the benefit of, any person or
entity that is not a party hereto or a successor or permitted assign
of a party hereto.
19. ADDITIONAL PROVISIONS.
A. Nothing herein shall be construed as conveying any interest in
any property of IAI, and CUSTOMER shall not represent that such
conveyance has occurred.
B. The provision of service by IAI is subject to the condition
that the service will not be used for any unlawful purpose.
Initials: MM FPR 4
20. ENTIRE AGREEMENT. This Agreement, including its Exhibits,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior or
contemporaneous agreements, whether written or oral, between IAI and
CUSTOMER. No waiver, alteration or modification of any of the
provisions of this Agreement, shall be binding unless in writing and
signed by a duly authorized representative of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year above written as the effective date.
Intercomm Americas, Inc. CUSTOMER
By: /s/ XXXX XXXX By: /s/ XXXX XXXXXXX
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Xxxx Xxxx
Name: XXXX XXXXXXX
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Title: President Title: VP
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Date: June 6, 1999 Date: June 1, 1999
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Initials: MM FPR 5
Exhibit A
Countries Covered: All international termination
Payment Rates: To be determined on customer specific and
country specific basis less a $.003 per
minute network management fee
Billing Cycle: Weekly
FOB Point: Dallas, Houston, Ft. Lauderdale
Initials: MM FPR 6
