CONFIDENTIAL
AMENDMENT
TO THE
SERVICE ORDER AGREEMENT TERMS AND CONDITIONS
BETWEEN
XO COMMUNICATIONS, INC.
AND
DIRECT PARTNER TELECOM, INC.
This Amendment ("Amendment") to Service Order Agreement dated October
24th, 2003 (hereinafter referred to as the "Agreement") is made and entered into
this day of October, 2003 ("Amendment Effective Date") by and between XO
COMMUNICATIONS, INC, on behalf of its operating subsidiaries and affiliates, a
Delaware corporation (such subsidiaries and affiliates hereinafter collectively
referred to as "XO"). whose principal place of business is located at 00000
Xxxxxx Xxxxx Xxxx, Xxxxxx, XX 00000 and DIRECT PARTNER TELECOM, INC., a Florida
corporation (hereinafter referred to as "Customer" and together with XO
collectively referred to as the "Parties"), whose principal place of business is
located at 000 Xxxx Xxxxxxx Xxxx., 00xx Xxxxx, Xx. Xxxxxxxxxx, XX 00000.
In consideration of the mutual promises and covenants herein contained,
the Parties hereby mutually agree as follows:
1. Capitalized terms not otherwise defined herein shall have the meaning given
them in the Agreement. Except as specifically set forth herein, all terms and
conditions of the Agreement shall remain in full force and effect.
2. MINIMUM COMMITMENT
A. In exchange for the Customer's continued compliance with the
terms and conditions of the Agreement, its payment of all sums pursuant to the
Agreement and maintenance of the Minimum Minute Commitment, hereinafter defined,
Customer may receive for the Term of the Agreement, as such Term is defined in
the Service Order Agreement attached hereto as Exhibit A, the [___*___] for
domestic terminating IP transport service
("DIPT Services") as set forth on the Service Order Agreement. The [___*___]
apply only to DIPT Services set forth in the SOA. [___*___] will
apply to all other services ordered or used by Customer unless specifically
agreed to otherwise in writing by an authorized XO party.
i. Rate Adjustment. The Customer hereby acknowledges and
agrees that the [___*___] for DIPT Services as set forth in Appendix l
[___*___] may increase in the event XO's cost associated with
DIPT Service increases at any time during the Term of the Agreement, or any
extension thereof. XO will provide Customer with five (5) days prior written
notice of any increase and the new rate will automatically become effective on
the 6th day from the date of such notice. [___*___]
B. MONTHLY MINUTE MINIMUM. Immediately following the ramp period,
hereinafter defined, and continuing for the Term of the Agreement (15 months),
Customer agrees to maintain a minimum monthly usage of [___*___]
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minutes of DIPT Service (the "Minimum Minute Commitment" or "MMC"). If the first
month in which the MMC is required is not a full month, the MMC will be
pro-rated. In the event Customer does not meet the MMC for any month during the
Term or any extension thereof following the Ramp Period, XO shall charge and
Customer agrees to pay a Shortfall Charge. The "Shortfall Charge" shall be an
amount equal to the difference between the Minimum Minute Commitment
[___*___] and Customer's actual minutes of use of DIPT Service for the month
multiplied by the Average Per-Minute Rate. The "Average Per-Minute Rate"
("APMR") equals the average rate per minute charged to Customer by XO for DIPT
Service during the ninety (90) day period preceding the date of the Shortfall
Charge calculation. [For example, Customer's minutes of usages during a month
after the Ramp Period equals [___*___]. Shortfall minutes equal [___*___] (MMC
less [___*___]). The Shortfall Charge would equal the [___*___] minutes
multiplied by the AMPR. Assuming the APMR for the 90 days preceding the date of
calculation of the Shortfall Charge is $0.0116, the Shortfall Charge would equal
[___*___] In the event of a default or termination under Section
J of the XO Terms, and in lieu of the early termination charges set forth in the
XO Terms, Customer agrees, as liquidated damages, to pay an early termination
charge equal to the MMC for the remaining Term of the Agreement (MMC multiplied
by the number of months remaining in the Term) multiplied by the APMR (based on
the 90 day average immediately preceding the date of termination).
C. Ramp. Customer shall have the first ninety (90) days of the Term
(the "Ramp Period") following the Service Commencement Date to achieve the
Minimum Minute Commitment. The Customer shall not be subject to the Shortfall
Charge during the Ramp Period. During the Ramp Period, Customer shall pay XO
usage charges based on the Preferred Rate set forth in Section 5.B above and is
responsible for the payment of any and all other amounts due and owing under the
Agreement. Immediately following the expiration of the Ramp Period (beginning on
the 91st day of the Term) and continuing for the Term of the Agreement, and any
extension thereof, the Customer agrees to achieve and maintain the MMC and shall
be subject to, and agrees to pay, the Shortfall Charge as calculated hereunder.
3. CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT IT IS NOT RELYING ON XO IN ANY
WAY TO PROVIDE 911, E911 OR ANY OTHER EMERGENCY SERVICES ("911 SERVICES").
Customer warrants and represents that it assumes all liability for any and all
911 SERVICES associated directly and indirectly with its services to its
customers or to any holder of a telephone number issued by XO pursuant to the
Agreement and this Amendment ("End-User"). Customer agrees that XO shall not
incur any liability, direct or indirect, to any End-User who dials or attempts
to dial the digits "9-1-1" or any other emergency services number or to any
other person who may be affected by the dialing of the digits "9-1-1" or any
other emergency services number. Customer hereby acknowledges and agrees that it
is fully responsible for all costs and expenses associated with 911 SERVICES,
including but not limited to any and all state and local authorities for the
funding of 911 SERVICES, 911 assessments, taxes and the like. Customer
represents and warrants that it is responsible for all costs associated with any
state or local 911-board assessments, existing now or at any time during the
term of the Agreement and its renewal periods, including any assessment based on
telephone numbers instead of access lines.
4. In the event Customer is requesting Directory Listing Services from XO,
Customer agrees, represents and warrants that it has all requisite
authorizations to provide end-user information to XO for purposes of Directory
Listings. Customer must send XO complete and accurate end-user listing
information for Directory Listings using the forms and process specified by XO.
Customer must provide to XO accurate end-user information to ensure appropriate
listings in any databases in which XO is required to retain and/or maintain
end-user information.
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Customer is responsible for and assumes all liability for the accuracy of the
initial end-user information that Customer provides to XO and is responsible for
and assumes all liability for timely and accurately updating such information.
XO assumes no liability for the accuracy of information provided by Customer.
5. In the event XO receives a valid request by a third party carrier for
customer proprietary network information, including but not limited to customer
service records, related to a telephone number assigned by XO to Customer and/or
Customer's End-Users, Customer hereby authorizes XO to provide any such
information in XO's possession to the third party carrier. If XO does not have
information sufficient to satisfy the request by the third party carrier,
Customer hereby authorizes XO to instruct such third party carrier to contact
Customer directly and Customer shall provide any such information in its
possession to the third party carrier consistent with industry standards.
Customer hereby acknowledges and agrees that XO is not providing "porting in"
services under the Agreement. Customer further acknowledges that a separate
written agreement would be necessary if it were to order such services from XO.
6. ENHANCED SERVICES CERTIFICATION
A. The parties agree that Customer has requested that XO terminate certain
Customer traffic to the LATA and NPA-NXX list defined in APPENDIX 1 to this
Agreement. The NPA-NXX list may be updated periodically and Customer will be
notified accordingly. The parties acknowledge that XO may temporarily restrict
the services from being provided to specific LATA's and/or NPA-NXXs based on
XO's sole discretion, e.g., traffic volume. To the extent XO is, through the
normal course of network changes, eliminating NPA-NXXs to specific LATAs, XO
will provide Customer with as much advance notice as is practicable under the
circumstances as well as provide a route advancement to the next available
carrier based on the LCR table choices provided by Customer. Customer will be
required to provide a valid Address Number Indicator (ANI), according to the
North American Numbering Plan, as defined in the Local Exchange Routing Guide
(LERG), volume 6. Calls with no valid ANI will be rejected. XO will work with
Customer to assist in the re-routing of calls received with no ANI.
B. Customer hereby certifies that it is an enhanced service provider
eligible to purchase intrastate services instead of interstate access under
applicable rules of the Federal Communications Commission ("FCC"). Customer
further certifies that any circuits provided to Customer by XO that carry ten
percent (10%) or more interstate traffic will be used by Customer solely to
provide Internet access, Internet Provider ("IP") service or other enhanced
services. Customer acknowledges and agrees that any circuits provided to
Customer by XO that carry ten percent (10%) or more interstate traffic that are
not to be used by Customer solely to provide Internet access, IP services or
other enhanced services will be provided under the rates, terms and conditions
of XO's applicable FCC access Tariffs rather than this Agreement. Customer shall
sign a statement of Certification for FCC exemption for Enhanced Service
Providers/Internet Service Providers so that Customer may purchase service from
this Agreement and applicable state jurisdictional Tariffs.
C. Customer agrees that, if another carrier and/or regulatory agency
determines it is necessary to audit or investigate the traffic which is the
subject of this Certification, Customer will cooperate in any such
investigation. In addition, to the extent any third party attempts to recover
access charges from XO as a result of such audit/investigation, Customer agrees
that it will indemnify XO for any and all costs resulting from such third party
actions. This does not prohibit Customer from challenging charges assessed by
the third party or the classification of its traffic being subject to access
charges.
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D. In addition to the underlying indemnification provisions set forth in
the applicable service agreement, Customer and/or end user shall indemnify,
defend and hold harmless XO and its parent company, affiliates, subsidiaries,
employees, directors, officers, and agents from and against any and all claims,
demands, actions, causes of actions, damages, liabilities, losses, and expenses
(including reasonable attorney's fees) incurred as a result of third party
claims related to any Customer representations herein regarding Customer's
traffic and Customer's use of services, including but not limited to, Enhanced
Service Provider Certification set forth above.
7. Customer hereby acknowledges and agrees that it is the customer of record for
all Services purchased from XO. XO shall take orders from, xxxx and expect
payment from Customer for all Services. Customer hereby acknowledges and agrees
that XO has no responsibility to Customer's End-Users. In the event XO
terminates Customer's Services under the Agreement, Customer represents that it
is responsible for providing any and all necessary notice to its End-Users of
such termination. In no case shall XO be responsible for providing such notice
to Customer's End-Users.
8. Customer represents and warrants that it is liable for all fraud associated
with Customer provided services, including service to its End-Users and
accounts. XO takes no responsibility, will not investigate, and will make no
adjustments to Customer's account in cases of fraud, unless such fraud is the
direct result of or caused solely by any intentional act or gross negligence of
XO.
9. Customer agrees that XO has full discretion to limit Customer's access to
numbers and area codes depending upon XO's available numbering resources and
applicable federal, state or other numbering administration rules and
regulations.
10. Neither the Agreement nor this Amendment provides for billing or collection
services to be performed by XO for Customer regarding Customer's End-Users.
Customer's obligations to XO under the Agreement, including but not limited to
the obligation of payment, are independent from and are in no way diminished by
Customer's End-Users failure to perform any obligations to Customer.
11. Customer agrees to release, defend, indemnify and hold harmless XO, its
parent, subsidiaries and affiliates and each of the XO officers, directors,
employees, agents, partners, members and shareholders from and against any and
all losses, damages, claims, demands, suits, liabilities, fines, penalties,
obligations, settlement payments, awards, judgments, deficiencies, or other
charges and any and all expenses, including attorney's fees, incurred in
connection with investigating, defending or asserting any claim, action, suit or
proceeding, whether based in contract, tort or otherwise arising out of, or in
connection with this Agreement as herein amended, including but not limited to
Customer's provision of End-User information to XO, including any error or
omission in any directory listing.
12. Neither party may assign its rights or obligations under this Agreement
without the other party's prior written consent, which shall not be unreasonably
withheld; provided, however, a party may, without the other party's consent upon
giving notice to the other party, assign its rights and obligations (in whole
but not in part) hereunder to (i) an Affiliate (as defined below) or (ii) any
person or entity who buys or is transferred all or substantially all of the
party's assets or equity and satisfies, in advance of any assignment, XO's
credit requirements related to this Agreement and the Services purchased and
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provided hereunder. Any attempted assignment in Agreement as herein amended,
including but not limited to Customer's provision of End-User information to XO,
including any error or omission in any directory listing.
12. Neither party may assign its rights or obligations under this Agreement
without the other party's prior written consent, which shall not be unreasonably
withheld; provided, however, a party may, without the other party's consent upon
giving notice to the other party, assign its rights and obligations (in whole
but not in part) hereunder to (i) an Affiliate (as defined below) or (ii) any
person or entity who buys or is transferred all or substantially all of the
party's assets or equity and satisfies, in advance of any assignment, XO's
credit requirements related to this Agreement and the Services purchased and
provided hereunder. Any attempted assignment in violation of the foregoing shall
be null and void and of no force or effect. The parties' rights and obligations
will bind and inure to the benefit of their respective successors and permitted
assigns. "Affiliate" means any person or entity that directly or indirectly
controls, is controlled by or is under common control with the party and who
satisfies, in advance of any assignment, XO's credit requirements related to
this Agreement and the Services purchased and provided hereunder.
13. This Amendment and the Agreement as amended herein, together with any
applicable tariffs, sets forth the entire understanding of the parties and
supersedes any and all prior agreements, arrangements or understandings relating
to the subject matter hereof, The Agreement, including this Amendment, may not
be amended or modified unless mutually agreed to in writing executed by
authorized representatives of the parties. Electronic Mail shall in no way be
considered a "writing" sufficient to change, modify, extend or otherwise affect
the terms of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by
representatives duly authorized as of the Amendment Effective Date set forth
above.
XO COMMUNICATIONS, INC., ON BEHALF DIRECT PARTNER TELECOM, INC.
OF ITS OPERATING SUBSIDIARIES AND AFFILIATES
BY: BY: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- -------------------------
NAME: NAME: Xxxxxx X. Xxxxxxxx
TITLE: SVP TITLE: President
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EXHIBIT A
SERVICE ORDER AGREEMENT
CONFIDENTIAL
APPENDIX 1
[___*___] Based Pricing Plan
The Customer hereby acknowledges and agrees that the [___*___] for DIPT Services
as set forth in this Appendix 1 ([___*___] Price Plan) may increase in the event
XO's cost associated with DIPT Service increases at any time during the Term of
the Agreement, or any extension thereof. XO will provide Customer with five (5)
days prior written notice of any increase and the new rate will automatically
become effective on the 6th day from the date of such notice.
CONFIDENTIAL
AMENDMENT
to the
SERVICE ORDER AGREEMENT TERMS AND CONDITIONS
between
XO Communications, Inc.
and
Direct Partners Telecom, Inc.
This Amendment ("Amendment") to Service Order Agreement dated 7/30/2003
(hereinafter referred to as the "Agreement") is made and entered into this __day
of July, 2003 ("Amendment Effecftive Date") by and between XO Communications,
Inc., on behalf of its operating subsidiaries and affiliates, a Delaware
corporation (such subsidiaries and affiliates hereinafter collectively referred
to as "XO"), whose principal place of business is located at 00000 Xxxxxx Xxxxx
Xxxx, Xxxxxx, XX 00000 and Direct Partners, Inc., a Florida corporation
(hereinafter referred to as "Customer" and together with XO collectively
referred to as the "Parties"), whose principal place of business is located at
000 Xxxx Xxxxxxx Xxxx., Xx. Xxxxxxxxxx, XX 00000.
In consideration of the mutual promises and covenants herein contained,
the Parties hereby mutually agree as follows:
1. Capitalized terms not otherwise defined herein shall have the meaning
given them in the Agreement. Except as specifically set forth herein, all terms
and conditions of the Agreement shall remain in full force and effect.
2. CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT IT IS NOT RELYING ON XO IN
ANY WAY TO PROVIDE 911, E911 OR OTHER EMERGENCY SERVICES ("911 SERVICES").
Customer warrants and represents that it assumes all liability for any and all
911 SERVICES associated directly and indirectly with its services to its
customers or to any holder of a telephone number issued by XO pursuant to the
Agreement and this Amendment ("End-User"). Customer agrees that XO shall not
incur any liability, direct or indirect, to any End-User who dials or attempts
to dial the digits "9-1-1" or any other emergency services number or to any
other person who may be affected by the dialing of the digits "9-1-1" or any
other emergency services number. Customer hereby acknowledges and agrees that it
is fully responsible for all costs and expenses associated with 911 SERVICES,
including but not limited to any and all state and local authorities for the
funding of 911 SERVICES, 911 assessments, taxes and the like. Customer
represents and warrants that it is responsible for all costs associated with any
state or local 911-board assessments, existing nor or any time during the
term of the Agreement and its renewal periods, including any assessment based on
telephone numbers instead of access lines.
3. In the event Customer is requesting Directory Listing Services from XO,
Customer agrees, represents and warrants that it has all requisite
authorizations to provide end-user information to XO for purposes of Directory
Listings. Customer must send XO complete and accurate end-user listing
information for Directory Listings using the forms and process specified by XO.
Customer must provide to XO accurate end-user information to ensure appropriate
listings in any databases in which XO is required to retain and/or maintain
end-user information. Customer is responsible for and assumes all liability for
the accuracy of the initial end-user information that Customer provides to XO
and is responsible for and assumes all liability for timely and accurately
updating such information. XO assumes no liability for the accuracy of
information provided by Customer.
4. In the event XO receives a valid request by a third party carrier for
customer proprietary network information, including but not limited to customer
service records, related to a telephone number assigned by XO to Customer and/or
Customer's End-Users, Customer hereby authorizes XO to provide any such
information in XO's possession to the third party carrier. If XO does not have
information sufficient to satisfy the request by the third party carrier,
Customer hereby authorizes XO to instruct such third party carrier to contact
Customer directly and Customer shall provide any such information in its
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possession to the third party carrier consistent with industry standards.
Customer hereby acknowledges and agrees that XO is not providing "porting in"
services under the Agreement. Customer hereby acknowledges that a separate
written agreement would be necessary if it were to order such services from XO.
5. With regard to the Customer's services to its End-Users, Customer
represents and warrants that all such Customer-provided services rendered by it
and related to the Agreement or this Amendment shall be designed, produced,
installed, furnished and in all respects provided and maintained in conformance
and compliance with applicable federal, state and local laws, administrative and
regulatory requirements and any other authorities having jurisdiction over the
subject matter of the Customer-provided services and it shall be responsible for
applying for, obtaining and maintaining all registrations and certifications
which may be required by such authorities.
6. Customer hereby acknowledges and agrees that it is the customer of
record for all Services purchased from XO. XO shall take orders from, xxxx and
expect payment from Customer for all Services. Customer hereby acknowledges and
agrees that XO has no responsibility to Customer's End-Users. In the event XO
terminates Customer's Services under the Agreement, Customer represents that it
is responsible for providing any and all necessary notice to its End-Users of
such termination. In no case shall XO be responsible for providing such notice
to Customer's End-Users.
7. Customer represents and warrants that it is liable for all fraud
associated with Customer provided services, including service to its End-Users
and accounts. XO takes no responsibility, will not investigate, and will make no
adjustments to Customer's account in cases of fraud, unless such fraud is the
direct result of or caused solely by any intentional act or gross negligence of
XO.
8. Customer agrees that XO has full discretion to limit Customer's access
to numbers and area codes depending upon XO's available numbering resources and
applicable federal, state or other numbering administration rules and
regulations.
9. Customer agrees to release, defend, indemnify and hold harmless XO, its
parent, subsidiaries and affiliates and each of the XO officers, directors,
employees, agents, partners, members and shareholders from and against any and
all losses, damages, claims, demands, suits, liabilities, finds, penalties,
obligations, settlement payments, awards, judgments, deficiencies, or other
charges and any and all expenses, including attorney's fees, incurred in
connection with investigating, defending or asserting any claim, action, suit or
proceeding, whether based in contract, tort or otherwise arising out of, or in
connection with this Agreement as herein amended, including but not limited to
Customer's provision of End-User information to XO, including any error or
omission in any directory listing.
10. Section B of the Service Order Agreement Terms and Conditions shall be
deleted and replaced with the following:
"TERM. The Initial Service term shall be as set forth on the SOA (the
"Initial Term" or "Term") and shall begin on the Service Commencement Date
(as defined below). If no Initial Term is set forth, the term of this
Agreement is one year. If Customer or XO does not cancel the Agreement
before the end of the Term, this Agreement will automatically renew on a
month to month basis at the rates specified in the SOA (unless otherwise
stated in the notice) and pursuant to the Terms and Conditions and
applicable tariffs. Unless XO has already provided notice of its intent to
terminate this Agreement, XO will notify Customer, in writing, at least
sixty (60) days prior to the expiration of the Term, regarding the pending
expiration of this Agreement and the automatic renewal of the Agreement if
no action is taken prior to expiration. If you notify XO of your decision
to cancel this Agreement within the notice period provided, actual
termination of your Service may not occur until thirty (30) days after
receipt of your notification. If you choose to take Service for a minimum
term or minimum commitment and you cancel Service before the end of the
Term, you shall be subject to early termination charges, as further
detailed in these Terms and Conditions."
11. Section C of the Service Order Agreement Terms and Conditions shall be
deleted and replaced with the following:
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"RATES. The rates for Services shall be set forth in the SOA and shall be
valid for the Initial Term, provided however, all rates for International
Services are subject to change on five (5) days written notice from XO,
and new rates are automatically effective on the 6th day from the date of
such notice. Customer acknowledges international long distance wireless
terminations are billed at higher rates, as further set forth in the
Additional Terms. Rates do not include taxes, surcharges and fees charged
by XO, including but not limited to the Subscriber Line Charge and Long
Distance Access Charges."
12. The last sentence of Section 1 of the Service Order Agreement Terms
and Conditions shall be deleted and replaced with the following:
"Customer may not cancel this Agreement if there is a delay in
installation related to the Services unless such delay is solely due to XO
and such delay is longer than thirty (30) days beyond the parties agreed
Service Commencement Date; provided, however, in no event may Customer
cancel if XO has agreed to construct or is constructing Communication
Facilities to provide Service to Customer."
13. Neither the Agreement nor this Amendment provides for billing or
collection services to be performed by XO for Customer regarding Customer's
End-Users. Customer's obligations to XO under this Agreement, including but not
limited to the obligation of payment, are independent from and are in no way
diminished by Customer's End-Users failure to perform any obligations to
Customer.
14. This Amendment and the Agreement as amended herein, together with any
applicable tariffs, set forth the entire understanding of the parties and
supersedes any and all prior agreements, arrangements or understandings relating
to the subject matter hereof. The Agreement including this Amendment, may not be
amended or modified unless mutually agreed to in writing executed by authorized
representatives of the parties. Electronic Mail shall in no way be considered a
"writing" sufficient to change, modify, extend or otherwise affect the terms of
the Agreement.
In WITNESS WHEREOF, the parties have executed this Amendment by
representatives duly authorized as of the Amendment Effective Date set forth
above.
XO Communications, Inc., on behalf Direct Partners Telecom, Inc.
of its operating subsidiaries
and affiliates
BY: BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------- -------------------------------
NAME: NAME: Xxxxx X. Xxxxxxxx
----------------------------- -----------------------------
TITLE: TITLE: CEO
---------------------------- ----------------------------
XO Terms and Conditions
XO COMMUNICATION SERVICES TERMS AND CONDITIONS
A. SERVICE OFFERING. You agree you are contracting for the services ("services")
referenced on the XO Service Order Agreement ("SOA") with the applicable XO
operating entities providing such Services (herein, "XO") This Agreement (as
defined below) between you ("you" may also, be referred to as "Customer") and XO
sets forth the legal rights and obligations governing the XO offer,
provisioning, and delivery of Services to you and your use of the Services. This
Agreement consists of the SOA, including the following terms and conditions, the
Product Ts and Cs (as defined in Section D below) and the general Service terms
and conditions (collectively, the "Additional Terms"), both set forth at
(xxx.xxxxx.xx.xxx) (collectively, and as applicable, the "Terms and
Conditions'), and applicable tariffs (collectively, the "Agreement"). Some
Services offered by XO under this Agreement are offered pursuant to applicable
tariffs, which are filed with applicable regulatory agencies ("Tariffed
Services"), and the Terms and Conditions. All applicable tariffs are fully
incorporated herein. For Tariffed Services in the event of conflict between the
Terms and Conditions and a tariff, the tariff shall control to the extent of any
inconsistency. Upon cancellation of any tariff the Terms and Conditions shall
control. The terms and conditions set forth herein announce in most respects the
Additional Terms. In the event of any inconsistency between the terms contained
herein and the Additional Terms, and only to the extent of the inconsistency,
the Additional Terms shall control.
B. TERM. The initial Service term shall be as set forth on the SOA (the "Initial
Term" or "Term") and shall begin on the Service Commencement Date (as defined
below). If no Initial Term is set forth, the term of this Agreement is one year.
If Customer or XO does not cancel the Agreement before the end of the Term, this
Agreement will automatically renew for a similar term and at the rates specified
in the SOA (unless otherwise stated in the notice) and pursuant to the Terms and
Conditions and applicable tariffs. Unless XO has already provided notice of it's
intent to terminate this Agreement XO will notify Customer, in writing, at least
sixty (60) days prior to the expiration of the Term, regarding the pending
expiration of this Agreement and the automatic renewal of the Agreement if no
action is taken prior to expiration. If you notify XO of your decision to cancel
this Agreement within the notice period provided but within thirty (30) days or
less from the date of expiration, actual termination of your Service may not
occur until thirty (30) days after receipt of notification and you shall be
liable for all associated charges. If you choose to Service for a minimum term
or minimum commitment and you cancel Service before the end of the Term, you
shall be subject to early termination charges, as further detailed in these
Terms and Conditions.
C. RATES. The rates for Services shall be set forth in to SOA and shall be valid
for the Initial Term, provided that all rates for international Services are
subject to change on five (5) days notice from XO, and new rates are
automatically effective on the 6th day from the date of such notice. Customer
acknowledges international long distance wireless terminations are billed at
higher rates, as further set forth in the Additional Terms. Rates do not include
taxes, surcharges and fees charged by XO, including but not limited to
Subscriber Line Charge and Long Distance Access Charges.
D. SUPPLEMENTAL. PRODUCT TERMS AND CONDITIONS. The supplemental product terms
and conditions applicable to certain XO products are listed at
(xxx.xxxxx.xx.xxx) (the "Product Ts and Cs"). Only the Product Ts and Cs for
Services ordered or used by you ad applicable.
E. ACCEPTABLE USE POLICY. Customer agrees to be bound by the XO Acceptable Use
Policy CAUP') found at (xxx.xx.xxx/xxxxx/xxxxx.xxx).
F. RIGHT TO MAKE SERVICE CHARGES. XO retains the right to change. increase or
decrease from time to time, in its discretion and without liability to
(Customer, the methods, processes and/or the suppliers by which XO provides
Services to Customer, as well as the right to change, add to or delete Service
or Service offerings with appropriate notice to Customer.
G. PAYMENT. Customer shall pay XO for Services pursuant to this Agreement
Customer agrees to pay the applicable set-up, installation and disconnect fees.
Installation and disconnect fees are non-refundable. Regular billing for the
Services will begin on he Service Commencement Date (as defined below).
Thereafter invoices will be for the specified period of Service (monthly) and
are due upon receipt. Receipt shall be presumed within three (3) days after
mailing
Monthly recurring charges are billed in advance while usage and related charges
ere billed in arrears. Customer agrees that any additional Services requested,
whether verbally or in writing, (including but not limited to an upgrade or
relocation of customer's circuit(s)) will incur additional fees and charges, and
Customer agrees to pay these its, and charges when invoiced. Invoices not paid
within thirty (30) days after receipt unless otherwise specified on to invoice,
will be part due and subject to a 1.5% per month interest fee or the maximum me,
permitted by law, whichever is less, on all past-due balances. Customer
authorizes XO to request information from a reporting agency to enable XO to
assess Customers credit history, that such action s not the extension of
'credit" to Customer, and that XO may alter any Service or billing arrangements
as result, upon notice to Customer. In addition, Customer acknowledges that XO
may require Customer to submit upon demand a deposit, bond other financial
assurances to XO if so requested as condition of initial or continued Service or
Service may be suspended or terminated.
H. COMMUNICATION FACILITIES. In the event XO is required to construct and/or
acquire communication facilities In order to provide Service to Customer,
Customer acknowledge and agrees that XO will incur significant costs in
provisioning Service to Customer, including costs associated with constructing
and/or acquiring the communications facilities necessary for delivery of
Services to Customer. In addition to any other rights and remedies XO may have,
Customer agrees that if Customer cancels, terminates or breaches this Agreement
after execution but prior to the Service Commencement Date, Customer will be
required to reimburse XO for all costs XO incurs in constructing and/or
acquiring such communications facilities. Provide Services agrees that XO
constructs or is constructing facilities in order to provide Services to
Customer or Customer receives individual case basis transaction (non-standard
pricing, terms or products), Customer shall not be eligible for the Satisfaction
Guarantee set forth at (xxx.xx.xxx/xxxx/xxxxxxxxxxx.xxx).
I. SERVICE COMMENCEMENT DATE. XO will notify Customer that the Services are
installed or connected and available for use. The date of such notice shall be
the "Service Commencement Date." Billing will begin on the Service Commencement
Date. The parties may mutually agree in writing upon a substitute Service
Commencement Date. If Customer notifies XO in writing that it is not prepared to
utilize the Services or facility after XO has notified the Customer that the
requested Service or facility is ready for use. XO may nonetheless begin billing
the Customer on the Service Commencement Date. XO may xxxx Customer for any loss
it has incurred in provisioning the Services. Customer agrees to cooperate with
XO in accomplish Service activation by providing reasonable access to Customer's
premises and facilitating testing and Service delivery requirements and Customer
agrees XO shall have reasonable access to Customers premises to repair, maintain
or retrieve XO equipment. XO SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER
RESULTING FROM DELAYS IN MEETING SERVICE DELIVERY DATES REQUESTED ARE SPECIFIED
BY CUSTOMER, OR INABILITY TO PROVIDE SERVICES. CUSTOMER MAY NOT CANCEL THIS
AGREEMENT IF THERE IS A DELAY IN INSTALLATION RELATED TO THE SERVICES UNLESS
SUCH DELAY IS SOLELY DUE TO XO AND SUCH DELAY IS LONGER THAN NINETY (90) DAYS
BEYOND THE PARTIES AGREED SERVICE COMMENCEMENT DATE; PROVIDED, HOWEVER, IN NO
EVENT MAY CUSTOMER CANCEL IF XO HAS AGREED TO CONSTRUCT OR IS CONSTRUCTING
COMMUNICATION FACILITIES TO PROVIDE SERVICE TO CUSTOMER.
J. DEFAULT/TERMINATION. Except as otherwise required by law or applicable
regulation, it after the Service Commencement Date, Customer: (a) fails to pay
any amount required under this Agreement or any other agreement with XO when due
and such failure continues for ten (10) days after written notice to Customer
that the same is due and payable; (b) fails to comply with any other material
provision of this Agreement and such noncompliance continues for thirty (30)
days after written notice to Customer thereof, or (c) Customer cancels or
terminates Service, including any part of an Integrated Service offering (except
related to an international Service rate change pursuant to Section C, and as
further set forth in the Additional Terms), at any time before completion of the
Initial Term or any renewal Term, then XO may elect to pursue one or more of
the, following courses of action, as applicable: (i) terminate in whole or in
part Customer's Service, whereupon all charges for the remaining Term are
immediately due and payable for the terminated Services, and Customer shall pay
an additional early termination charge that shall be equal to 75% of Customers
average monthly usage (for long distance and local voice Services usage, as
applicable) for the three (3) months prior to the termination month (or such
lesser period if fewer than three. (3) months of Service were utilized), times
the number of months remaining in the terms of the Agreement, (provided,
however, that in the event Customer has made an annual or other revenue
commitment, the shortfall of that commitment over the remaining Term shall be
the measure of the early termination charge); (ii) take
CUSTOMER NAME: Direct Partners Telecom, Inc. XO CONTRACT #: 91240
XO Service Order Agreement
immediate appropriate action to enforce payment, including suspension or
discontinuance of all or any part of the Services; and/or (iii) pursue any other
remedies as may be provided at law or in equity. In addition to any other rights
and remedies XO may have, including those set forth in Section H, Customer
agrees that if customer cancels, terminates or breaches this Agreement after
execution of the Agreement but prior to the Service Commencement Date, except as
termination is permitted in Section I, Customer shall pay XO an early
termination charge of two (2) months of the anticipated monthly recurring
charges or commitment level, along with ail nonrecurring charges. Any action
outlined herein by XO shall not be construed as an exclusive remedy and shall
not waive any XO right to pursue any other remedies. It is agreed that XO
damages in the event of Service cancellation or termination shall be difficult
or impossible to ascertain. Early termination charges are intended to establish
liquidated damages and are not intended as a penalty.
K. DISCLAIMER OF WARRANTIES. XO MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT OR XO
OWNED OR PROVIDED EQUIPMENT USED BY THE CUSTOMER, INCLUDING ANY EQUIPMENT WITH
RESPECT TO WHICH TITLE MAY TRANSFER TO CUSTOMER (EXCEPT TO THE EXTENT SET FORTH
IN A SEPARATE XO SALE TRANSFER DOCUMENT). THIS INCLUDES, BUT IS NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT
FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF ANY THIRD PARTY RIGHTS.
ADDITIONAL WARRANTY LIMITATIONS RELATED TO SPECIFIC PRODUCTS MAY BE FOUND AT
(XXX.XXXXX.XX.XXX).
L. LIMITATION OF LIABILITY. 1. WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR
ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER
THIS AGREEMENT AND/OR SERVICES PROVIDED HEREUNDER, XO's LIABILITY FOR SERVICE
INTERRUPTIONS OR SERVICE PROBLEMS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES
AS EXPRESSLY PROVIDED IN APPLICABLE TARIFFS OR AS OTHERWISE SET FORTH IN THE
TERMS AND CONDITIONS FOUND AT XXX.XXXXX.XX.XXX.
2. XO SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE
DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OF AN ACCOUNT,
EQUIPMENT, OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER OR ITS END-USERS OR
AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO
CUSTOMER; OR (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED,
TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN
IF XO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES THE ONLY EXCEPTION
SHALL BE TO TAE EXTENT PROPERTY DAMAGE TO CUSTOMER'S PREMISES IS CAUSED DUE TO
XO'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROVIDED, HOWEVER, IN NO EVENT
SHALL XO LIABILITY FOR DIRECT DAMAGES BE GREATER THAN THE SUM TOTAL OF PAYMENTS
MADE BY CUSTOMER TO XO DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT
FOR WHICH DAMAGES ARE CLAIMED.
3. IN NO EVENT SIALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOQDWILL OR
PROFITS, SAVINGS OR REVENUE, OR HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CASE WHATSOEVER.
M. CUSTOMER'S CERTIFICATION REGARDING LOCAL TRAFFIC. Customer represents and
warrants that all traffic being delivered by Customer or its designated agent to
XO for local termination, and all traffic that delivers to Customer or its
designated agent that has originated in the same local calling area in which
Customer's NPA-NXX assigned and/or which such traffic is terminated to Customer
or its designated agent, is local traffic or is legally entitled to be treated
as local traffic under all applicable federal, state and local laws,
administrative and regulatory requirements and any other authorities having
jurisdiction over such traffic. Customer understands that XO will rely upon such
representation to assign local telephone numbers to Customer and/or route
Customer's traffic for termination as local calling. Customer represents and
warrants that Customer has paid all applicable access charges associated with
any non-local traffic. In addition, the parties mutually agree that Customer is
exclusively responsible for paying any switched access charges levied, charged
or imposed by any third party Local Exchange Carrier ("LEC") in connection with
the origination or termination of any such non-local traffic. Customer also
represents and warrants that neither it nor any of its agents will remove or in
any way alter Automatic Number Identification ("ANI") or Calling Party Number
("CPN") information associated with any traffic delivered pursuant to this
Agreement. Customer agrees that, if another carrier and/or regulatory agency
determines it is necessary to audit the traffic which is delivered pursuant to
this Agreement, Customer will cooperate in any such investigation. In addition,
to the extent any third party attempts to recover intercarrier compensation from
XO as a result of such audit/investigation, Customer agress that it will
indemnify XO for any and all costs resulting from such third party actions.
N. COMPLETE AGREEMENT/ADDITIONAL TERMS. This Agreement incorporating all the
items referenced herein, represents the complete agreement of the parties, and
supersedes all other agreements whether written or oral. This Agreement may be
modified only by written agreement executed by authorized parties, changes to
the URL sites referenced, changes to tariffs or as otherwise specifically
provided herein. Neither Electronic Mail nor Instant Messaging ("IM") shall be
considered a "writing" sufficient to change, modify, extend or otherwise affect
the terms of the Agreement This Agreement shall be governed by the substantive
law of the Commonwealth of Virginia without reference to its principles of
conflicts of laws, and Customer consents to the jurisdiction and venue of the
Federal District Court for the Eastern District of Virginia or the State courts
in Fairfax County, Virginia.
THE ADDITIONAL TERMS, AUP AND TARIFFS MAY BE MODIFIED FROM TIME TO TIME AT XO
DISCRETION OR AS REQUIRED BY APPLICABLE LAW. YOU AGREE TO REVIEW SUCH CHANGED
ITEMS FROM TIME TO TIME AND BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE
PARTICULAR SERVICES YOU CHOOSE NOW OR MAY CHOOSE IN THE FUTURE. UNLESS SUBJECT
TO TARIFFS OR STANDARD PRICING POSTED AT (XXX.XXXXXXX.XXX), SO MAY NOT
UNILATERALLY CHANGE THE RATES, FEES OR CHARGES SET FORTH HEREIN WITHOUT CUSTOMER
CONSENT. IF XO DETERMINES CHANGES TO THE ADDITIONAL TERMS, AUP AND TARIFFS WILL
MATERIALLY AND DETRIMENTALLY AFFECT YOUR SERVICE OR RIGHTS AND ARE NOT MANDATED
BY LAW OR REGULATION, XO WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE
NOTICE OF SUCH CHANGES AND AN OPPORTUNITY TO OBJECT IN WRITING IN THE MANNER
PRESCRIBED HEREIN OR IN SUCH NOTICE. CUSTOMER SHALL PROVIDE XO WRITTEN NOTICE OF
OBJECTION WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF NOTIFICATION OF SUCH
MATERIAL CHANGE CUSTOMER MUST INCLUDE A DETAILED DESCRIPTION OUTLINING HOW THE
CHANGE ADVERSELY AFFECTS CUSTOMER'S SERVICE(S). XO WILL REVIEW SUCH NOTIFICATION
AND IF THE PARTIES CANNOT COME TO AN AGREEMENT WITHIN THIRTY (30) DAYS, CUSTOMER
MAY TERMINATE SUCH SERVICE(S) WITHOUT INCURRING CHARGES FOR EARLY TERMINATION
PROVIDED THAT CUSTOMER'S ACCOUNT IS CURRENT (I.E., NO BALANCE OLDER THAN THIRTY
(30) DAYS). IN ANY CASE, THE CHANGES SHALL NOT DIMINISH ANY APPLICABLE SERVICE
LEVEL AGREEMENTS ENTERED INTO AT THE SERVICE COMMENCEMENT DATE. YOU HEREBY
CONSENT TO THE INCORPORATION OF APPLICABLE TARIFFS AND THE ADDITIONAL TERMS
INCLUDING THE DISPUTE RESOLUTION PROVISIONS, POSTED AT (XXX.XXXXXXX.XXX) AND THE
AUP. YOU AGREE THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE
OF ELECTRONIC RECORDS. YOU MAY REQUEST HARD COPIES OF PART OR ALL OF THE TERMS
AT ANY TIME BY CALLING 0-000-000-0000. THE OFFERING AND PROVISIONING OF SERVICES
IS SUBJECT TO ANY REQUIRED XO APPROVALS AND ANY REGULATORY COMMISSION REVIEW,
APPROVAL AND REQUIREMENTS. IF YOU USE THE SERVICES, YOU ARE DEEMED TO HAVE
ACCEPTED THE TERMS AND CONDITIONS, THE AUP, AND THE APPLICABLE TARIFFS.
CUSTOMER NAME: Direct Partners Telecom, Inc. XO CONTRACT #: 91240
CUSTOMER AUTHORIZED REPRESENTATIVE SIGNATURE: /s/ Xxxxx X. Xxxxxxxx
----------------------------
CUSTOMER AUTHORIZED REPRESENTATIVE NAME: Xxxxx X. Xxxxxxxx
---------------------------------
CUSTOMER AUTHORIZED REPRESENTATIVE'S TITLE: CEO
------------------------------
DATE SIGNED: 7/29/03
---------
XO AUTHORIZED REPRESENTATIVE SIGNATURE:
----------------------------------------
(SALES MANAGER OR ABOVE)
X-FORMS 05-03
CROSS CORPORATE GUARANTEE
xxxxxxxx.xxx, inc. (Corporation), hereafter known as Guarantor, organized under
the Laws of the State of Delaware and having a legal address of 110 E. Broward
Blvd., Suite 1400 Ft. Xxxxxxxxxx, Xxxxxxx (xxxxx), 00000 (xxx code), does hereby
unconditionally guarantee payment in full of obligations that may be incurred by
Direct Partners Telecom, Inc., (Debtor) and payable to XO COMMUNICATIONS or its
successors. The Guarantor acknowledges a legal and financial relationship exists
between the Guarantor and the Debtor and grants this Guarantee in consideration
for services provided to the Debtor by XO COMMUNICATIONS or its successors. This
Guarantee includes obligations derived from current and future services
contracted from XO COMMUNICATIONS and shall be due and payable upon written
demand by XO COMMUNICATIONS.
This Guarantee shall become null and void upon written request from the
Guarantor, with approval from XO COMMUNICATIONS. However, under no circumstances
shall the Guarantee be for a term less than one (1) year, nor shall the request
for cancellation of the Guarantee be granted unless the debtor has fully
complied with all terms and conditions of the contract for services with XO
COMMUNICATIONS.
This Guarantee is hereby granted this 20th day of June, 2000 by xxxxxxxx.xxx,
inc. (Corporation)
/s/ Xxxxx Xxxxxx Xxxxxxxx , CFO
---------------------------------------- ----------
Authorized signer of the Guarantor Title
XO Service Order Agreement
XO SERVICES TERMS AND CONDITIONS
A. SERVICE OFFERING. You agree you are contracting for the services ("services")
referenced on the XO Service Order Agreement ("SOA") with the applicable XO
operating entities providing such Services (herein, "XO") This Agreement (as
defined below) between you ("you" may also, be referred to as "Customer") and XO
sets forth the legal rights and obligations governing the XO offer,
provisioning, and delivery of Services to you and your use of the Services. This
Agreement consists of the SOA, including the following terms and conditions, the
Product Ts and Cs (as defined in Section D below) and the general Service terms
and conditions (collectively, the "Additional Terms"), both set forth at
(xxx.xxxxx.xx.xxx) (collectively, and as applicable, the "Terms and
Conditions'), and applicable tariffs (collectively, the "Agreement"). Some
Services offered by XO under this Agreement are offered pursuant to applicable
tariffs, which are filed with applicable regulatory agencies ("Tariffed
Services"), and the Terms and Conditions. All applicable tariffs are fully
incorporated herein. For Tariffed Services in the event of conflict between the
Terms and Conditions and a tariff, the tariff shall control to the extent of any
inconsistency. Upon cancellation of any tariff the Terms and Conditions shall
control. The terms and conditions set forth herein announce in most respects the
Additional Terms. In the event of any inconsistency between the terms contained
herein and the Additional Terms, and only to the extent of the inconsistency,
the Additional Terms shall control.
B. TERM. The initial Service term shall be as set forth on the SOA (the "Initial
Term" or "Term") and shall begin on the Service Commencement Date (as defined
below). If no Initial Term is set forth, the term of this Agreement is one year.
If Customer or XO does not cancel the Agreement before the end of the Term, this
Agreement will automatically renew for a similar term and at the rates specified
in the SOA (unless otherwise stated in the notice) and pursuant to the Terms and
Conditions and applicable tariffs. Unless XO has already provided notice of it's
intent to terminate this Agreement XO will notify Customer, in writing, at least
sixty (60) days prior to the expiration of the Term, regarding the pending
expiration of this Agreement and the automatic renewal of the Agreement if no
action is taken prior to expiration. If you notify XO of your decision to cancel
this Agreement within the notice period provided but within thirty (30) days or
less from the date of expiration, actual termination of your Service may not
occur until thirty (30) days after receipt of notification and you shall be
liable for all associated charges. If you choose to Service for a minimum term
or minimum commitment and you cancel Service before the end of the Term, you
shall be subject to early termination charges, as further detailed in these
Terms and Conditions.
C. RATES. The rates for Services shall be set forth in to SOA and shall be valid
for the Initial Term, provided that all rates for international Services are
subject to change on five (5) days notice from XO, and new rates are
automatically effective on the 6th day from the date of such notice. Customer
acknowledges international long distance wireless terminations are billed at
higher rates, as further set forth in the Additional Terms. Rates do not include
taxes, surcharges and fees charged by XO, including but not limited to
Subscriber Line Charge and Long Distance Access Charges.
D. SUPPLEMENTAL. PRODUCT TERMS AND CONDITIONS. The supplemental product terms
and conditions applicable to certain XO products are listed at
(xxx.xxxxx.xx.xxx) (the "Product Ts and Cs"). Only the Product Ts and Cs for
Services ordered or used by you ad applicable.
E. ACCEPTABLE USE POLICY. Customer agrees to be bound by the XO Acceptable Use
Policy CAUP') found at (xxx.xx.xxx/xxxxx/xxxxx.xxx).
F. RIGHT TO MAKE SERVICE CHARGES. XO retains the right to change. increase or
decrease from time to time, in its discretion and without liability to
(Customer, the methods, processes and/or the suppliers by which XO provides
Services to Customer, as well as the right to change, add to or delete Service
or Service offerings with appropriate notice to Customer.
G. PAYMENT. Customer shall pay XO for Services pursuant to this Agreement
Customer agrees to pay the applicable set-up, installation and disconnect fees.
Installation and disconnect fees are non-refundable. Regular billing for the
Services will begin on he Service Commencement Date (as defined below).
Thereafter invoices will be for the specified period of Service (monthly) and
are due upon receipt. Receipt shall be presumed within three (3) days after
mailing
Monthly recurring charges are billed in advance while usage and related charges
ere billed in arrears. Customer agrees that any additional Services requested,
whether verbally or in writing, (including but not limited to an upgrade or
relocation of customer's circuit(s)) will incur additional fees and charges, and
Customer agrees to pay these its, and charges when invoiced. Invoices not paid
within thirty (30) days after receipt unless otherwise specified on to invoice,
will be part due and subject to a 1.5% per month interest fee or the maximum me,
permitted by law, whichever is less, on all past-due balances. Customer
authorizes XO to request information from a reporting agency to enable XO to
assess Customers credit history, that such action s not the extension of
'credit" to Customer, and that XO may alter any Service or billing arrangements
as result, upon notice to Customer. In addition, Customer acknowledges that XO
may require Customer to submit upon demand a deposit, bond other financial
assurances to XO if so requested as condition of initial or continued Service or
Service may be suspended or terminated.
H. COMMUNICATION FACILITIES. In the event XO is required to construct and/or
acquire communication facilities In order to provide Service to Customer,
Customer acknowledge and agrees that XO will incur significant costs in
provisioning Service to Customer, including costs associated with constructing
and/or acquiring the communications facilities necessary for delivery of
Services to Customer. In addition to any other rights and remedies XO may have,
Customer agrees that if Customer cancels, terminates or breaches this Agreement
after execution but prior to the Service Commencement Date, Customer will be
required to reimburse XO for all costs XO incurs in constructing and/or
acquiring such communications facilities. Provide Services agrees that XO
constructs or is constructing facilities in order to provide Services to
Customer or Customer receives individual case basis transaction (non-standard
pricing, terms or products), Customer shall not be eligible for the Satisfaction
Guarantee set forth at (xxx.xx.xxx/xxxx/xxxxxxxxxxx.xxx).
I. SERVICE COMMENCEMENT DATE. XO will notify Customer that the Services are
installed or connected and available for use. The date of such notice shall be
the "Service Commencement Date." Billing will begin on the Service Commencement
Date. The parties may mutually agree in writing upon a substitute Service
Commencement Date. If Customer notifies XO in writing that it is not prepared to
utilize the Services or facility after XO has notified the Customer that the
requested Service or facility is ready for use. XO may nonetheless begin billing
the Customer on the Service Commencement Date. XO may xxxx Customer for any loss
it has incurred in provisioning the Services. Customer agrees to cooperate with
XO in accomplish Service activation by providing reasonable access to Customer's
premises and facilitating testing and Service delivery requirements and Customer
agrees XO shall have reasonable access to Customers premises to repair, maintain
or retrieve XO equipment. XO SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER
RESULTING FROM DELAYS IN MEETING SERVICE DELIVERY DATES REQUESTED ARE SPECIFIED
BY CUSTOMER, OR INABILITY TO PROVIDE SERVICES. CUSTOMER MAY NOT CANCEL THIS
AGREEMENT IF THERE IS A DELAY IN INSTALLATION RELATED TO THE SERVICES UNLESS
SUCH DELAY IS SOLELY DUE TO XO AND SUCH DELAY IS LONGER THAN NINETY (90) DAYS
BEYOND THE PARTIES AGREED SERVICE COMMENCEMENT DATE; PROVIDED, HOWEVER, IN NO
EVENT MAY CUSTOMER CANCEL IF XO HAS AGREED TO CONSTRUCT OR IS CONSTRUCTING
COMMUNICATION FACILITIES TO PROVIDE SERVICE TO CUSTOMER.
J. DEFAULT/TERMINATION. Except as otherwise required by law or applicable
regulation, it after the Service Commencement Date, Customer: (a) fails to pay
any amount required under this Agreement or any other agreement with XO when due
and such failure continues for ten (10) days after written notice to Customer
that the same is due and payable; (b) fails to comply with any other material
provision of this Agreement and such noncompliance continues for thirty (30)
days after written notice to Customer thereof, or (c) Customer cancels or
terminates Service, including any part of an Integrated Service offering (except
related to an international Service rate change pursuant to Section C, and as
further set forth in the Additional Terms), at any time before completion of the
Initial Term or any renewal Term, then XO may elect to pursue one or more of
the, following courses of action, as applicable: (i) terminate in whole or in
part Customer's Service, whereupon all charges for the remaining Term are
immediately due and payable for the terminated Services, and Customer shall pay
an additional early termination charge that shall be equal to 75% of Customers
average monthly usage (for long distance and local voice Services usage, as
applicable) for the three (3) months prior to the termination month (or such
lesser period if fewer than three. (3) months of Service were utilized), times
the number of months remaining in the terms of the Agreement, (provided,
however, that in the event Customer has made an annual or other revenue
commitment, the shortfall of that commitment over the remaining Term shall be
the measure of the early termination charge); (ii) take
CUSTOMER NAME: Direct Partners Telecom, Inc. XO CONTRACT #: 93071
XO Service Order Agreement
immediate appropriate action to enforce payment, including suspension or
discontinuance of all or any part of the Services; and/or (iii) pursue any other
remedies as may be provided at law or in equity. In addition to any other rights
and remedies XO may have, including those set forth in Section H, Customer
agrees that if customer cancels, terminates or breaches this Agreement after
execution of the Agreement but prior to the Service Commencement Date, except as
termination is permitted in Section I, Customer shall pay XO an early
termination charge of two (2) months of the anticipated monthly recurring
charges or commitment level, along with ail nonrecurring charges. Any action
outlined herein by XO shall not be construed as an exclusive remedy and shall
not waive any XO right to pursue any other remedies. It is agreed that XO
damages in the event of Service cancellation or termination shall be difficult
or impossible to ascertain. Early termination charges are intended to establish
liquidated damages and are not intended as a penalty.
K. DISCLAIMER OF WARRANTIES. XO MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT OR XO
OWNED OR PROVIDED EQUIPMENT USED BY THE CUSTOMER, INCLUDING ANY EQUIPMENT WITH
RESPECT TO WHICH TITLE MAY TRANSFER TO CUSTOMER (EXCEPT TO THE EXTENT SET FORTH
IN A SEPARATE XO SALE TRANSFER DOCUMENT). THIS INCLUDES, BUT IS NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT
FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF ANY THIRD PARTY RIGHTS.
ADDITIONAL WARRANTY LIMITATIONS RELATED TO SPECIFIC PRODUCTS MAY BE FOUND AT
(XXX.XXXXX.XX.XXX).
L. LIMITATION OF LIABILITY. 1. WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMER, OR
ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER
THIS AGREEMENT AND/OR SERVICES PROVIDED HEREUNDER, XO's LIABILITY FOR SERVICE
INTERRUPTIONS OR SERVICE PROBLEMS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES
AS EXPRESSLY PROVIDED IN APPLICABLE TARIFFS OR AS OTHERWISE SET FORTH IN THE
TERMS AND CONDITIONS FOUND AT XXX.XXXXX.XX.XXX.
2. XO SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE
DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, USE OR MISUSE OF AN ACCOUNT,
EQUIPMENT, OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER OR ITS END-USERS OR
AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO
CUSTOMER; OR (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED,
TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN
IF XO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES THE ONLY EXCEPTION
SHALL BE TO TAE EXTENT PROPERTY DAMAGE TO CUSTOMER'S PREMISES IS CAUSED DUE TO
XO'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROVIDED, HOWEVER, IN NO EVENT
SHALL XO LIABILITY FOR DIRECT DAMAGES BE GREATER THAN THE SUM TOTAL OF PAYMENTS
MADE BY CUSTOMER TO XO DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT
FOR WHICH DAMAGES ARE CLAIMED.
3. IN NO EVENT SIALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOQDWILL OR
PROFITS, SAVINGS OR REVENUE, OR HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CASE WHATSOEVER.
M. CUSTOMER'S CERTIFICATION REGARDING LOCAL TRAFFIC. Customer represents and
warrants that all traffic being delivered by Customer or its designated agent to
XO for local termination, and all traffic that delivers to Customer or its
designated agent that has originated in the same local calling area in which
Customer's NPA-NXX assigned and/or which such traffic is terminated to Customer
or its designated agent, is local traffic or is legally entitled to be treated
as local traffic under all applicable federal, state and local laws,
administrative and regulatory requirements and any other authorities having
jurisdiction over such traffic. Customer understands that XO will rely upon such
representation to assign local telephone numbers to Customer and/or route
Customer's traffic for termination as local calling. Customer represents and
warrants that Customer has paid all applicable access charges associated with
any non-local traffic. In addition, the parties mutually agree that Customer is
exclusively responsible for paying any switched access charges levied, charged
or imposed by any third party Local Exchange Carrier ("LEC") in connection with
the origination or termination of any such non-local traffic. Customer also
represents and warrants that neither it nor any of its agents will remove or in
any way alter Automatic Number Identification ("ANI") or Calling Party Number
("CPN") information associated with any traffic delivered pursuant to this
Agreement. Customer agrees that, if another carrier and/or regulatory agency
determines it is necessary to audit the traffic which is delivered pursuant to
this Agreement, Customer will cooperate in any such investigation. In addition,
to the extent any third party attempts to recover intercarrier compensation from
XO as a result of such audit/investigation, Customer agress that it will
indemnify XO for any and all costs resulting from such third party actions.
N. COMPLETE AGREEMENT/ADDITIONAL TERMS. This Agreement incorporating all the
items referenced herein, represents the complete agreement of the parties, and
supersedes all other agreements whether written or oral. This Agreement may be
modified only by written agreement executed by authorized parties, changes to
the URL sites referenced, changes to tariffs or as otherwise specifically
provided herein. Neither Electronic Mail nor Instant Messaging ("IM") shall be
considered a "writing" sufficient to change, modify, extend or otherwise affect
the terms of the Agreement This Agreement shall be governed by the substantive
law of the Commonwealth of Virginia without reference to its principles of
conflicts of laws, and Customer consents to the jurisdiction and venue of the
Federal District Court for the Eastern District of Virginia or the State courts
in Fairfax County, Virginia.
THE ADDITIONAL TERMS, AUP AND TARIFFS MAY BE MODIFIED FROM TIME TO TIME AT XO
DISCRETION OR AS REQUIRED BY APPLICABLE LAW. YOU AGREE TO REVIEW SUCH CHANGED
ITEMS FROM TIME TO TIME AND BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE
PARTICULAR SERVICES YOU CHOOSE NOW OR MAY CHOOSE IN THE FUTURE. UNLESS SUBJECT
TO TARIFFS OR STANDARD PRICING POSTED AT (XXX.XXXXXXX.XXX), SO MAY NOT
UNILATERALLY CHANGE THE RATES, FEES OR CHARGES SET FORTH HEREIN WITHOUT CUSTOMER
CONSENT. IF XO DETERMINES CHANGES TO THE ADDITIONAL TERMS, AUP AND TARIFFS WILL
MATERIALLY AND DETRIMENTALLY AFFECT YOUR SERVICE OR RIGHTS AND ARE NOT MANDATED
BY LAW OR REGULATION, XO WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE
NOTICE OF SUCH CHANGES AND AN OPPORTUNITY TO OBJECT IN WRITING IN THE MANNER
PRESCRIBED HEREIN OR IN SUCH NOTICE. CUSTOMER SHALL PROVIDE XO WRITTEN NOTICE OF
OBJECTION WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF NOTIFICATION OF SUCH
MATERIAL CHANGE CUSTOMER MUST INCLUDE A DETAILED DESCRIPTION OUTLINING HOW THE
CHANGE ADVERSELY AFFECTS CUSTOMER'S SERVICE(S). XO WILL REVIEW SUCH NOTIFICATION
AND IF THE PARTIES CANNOT COME TO AN AGREEMENT WITHIN THIRTY (30) DAYS, CUSTOMER
MAY TERMINATE SUCH SERVICE(S) WITHOUT INCURRING CHARGES FOR EARLY TERMINATION
PROVIDED THAT CUSTOMER'S ACCOUNT IS CURRENT (I.E., NO BALANCE OLDER THAN THIRTY
(30) DAYS). IN ANY CASE, THE CHANGES SHALL NOT DIMINISH ANY APPLICABLE SERVICE
LEVEL AGREEMENTS ENTERED INTO AT THE SERVICE COMMENCEMENT DATE. YOU HEREBY
CONSENT TO THE INCORPORATION OF APPLICABLE TARIFFS AND THE ADDITIONAL TERMS
INCLUDING THE DISPUTE RESOLUTION PROVISIONS, POSTED AT (XXX.XXXXXXX.XXX) AND THE
AUP. YOU AGREE THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE
OF ELECTRONIC RECORDS. YOU MAY REQUEST HARD COPIES OF PART OR ALL OF THE TERMS
AT ANY TIME BY CALLING 0-000-000-0000. THE OFFERING AND PROVISIONING OF SERVICES
IS SUBJECT TO ANY REQUIRED XO APPROVALS AND ANY REGULATORY COMMISSION REVIEW,
APPROVAL AND REQUIREMENTS. IF YOU USE THE SERVICES, YOU ARE DEEMED TO HAVE
ACCEPTED THE TERMS AND CONDITIONS, THE AUP, AND THE APPLICABLE TARIFFS.
CUSTOMER NAME: Direct Partners Telecom, Inc. XO CONTRACT #: 93071
X-Forms 09-03 b
