EXHIBIT 10.13
TELECOMMUNICATIONS SERVICE AGREEMENT
Pursuant to this agreement ("Agreement"), entered into between Xxxxxx
Fiber Communications of NVT Inc. ("BFC") and the customer identified on
the reverse hereof ("Customer")(each of BFC and Customer a "party"). BFC
agrees to provide and Customer agrees to purchase the services and/or
equipment ("Services" and/or "Leased Equipment") described on the reverse
side hereof or in addenda attached hereto (each a "Service Description")
at the prices and on the terms and conditions stated in such Service
Description and below, and as provided in relevant tariffs. Addenda
executed from time to time shall become part of this Agreement by
reference hereto. Each Service Description may describe (i) the
requested service commencement date ("Requested Service Date"), (ii) the
agreed duration of Customer's purchase ("Term"), (iii) the recurring
charge ("Service Charge"), install charge and any other charges, and (iv)
other pertinent information.
1. INITIATION AND TERM OF SERVICE: With respect to each Service
Description, the Term shall begin on the later of the Requested Service
Date or the day following the date on which BFC notifies Customer that
the Service is ready for use ("Service Commencement Date") and shall
continue for the applicable Term. At the expiration of the Term, this
Agreement shall continue in effect with respect to the Service on a
month-to-month basis, until canceled by either party on 30 days notice;
provided, however, that the Service Charge during such period shall be
the then current monthly rate provided by tariff or BFC's standard price
list. Customer shall be responsible for obtaining and maintaining rights-
of-way and facilities required for access from BFC's network to
Customer's premises, as well as necessary space and other facilities for
BFC and Customer equipment.
2. PAYMENT: Except as otherwise required by tariff, Customer agrees to
pay BFC monthly throughout the Term, on the Service Commencement Date and
on the first day of each monthly (or other) billing period thereafter, a
Service Charge at the rate stated as "Recurring" charge for each Service
Description. The first Service Charge shall be prorated from the Service
Commencement Date through the end of the calendar month in which the
Service Commencement Date occurs. The non-recurring charges and other
charges are payable with the first Service Charge. Except as otherwise
agreed, BFC shall submit monthly invoices to Customer, and payment of all
charges shall be due at the address shown on the invoice no later than 30
days after the invoice date ("Due Date"). Any amounts not paid within 15
days after the Due Date ("Delinquent Charges") will be subject to a late
charge of 1.5% per month or the maximum lawful rate, whichever is lower
("Late Charge"). Any applicable surcharge, federal, state, local use,
excise, or sales tax or similar levy, chargeable to or against BFC
because of the Service provided to Customer, shall be charged to and paid
by Customer in addition to the Service Charge and other charges under
this Agreement. Customer agrees to pay all costs, including reasonable
attorney's fees, expended in collecting Delinquent Charges.
3. SUSPENSION OR TERMINATION OF SERVICE: BFC may suspend or terminate
Service (i) if Customer fails to pay all Delinquent Charges within 7 days
after written notice of termination or (ii) if Customer fails, within 30
days after written notice, to comply with this Agreement or any
applicable tariff. No such suspension or termination shall be deemed an
Interruption, as defined in Section 4, below.
4. INTERRUPTION OF SERVICE; CREDIT: For any interruption of Service
("Interruption") that is not due to negligence or noncompliance with this
Agreement on the part of Customer or the operation or the malfunction of
facilities, power, or equipment provided by the Customer, Customer will
receive a credit for the period during which Service was interrupted. An
Interruption begins when the Customer reports a service facility or
circuit to be interrupted and releases it for testing and repair. An
Interruption ends when the service, facility, or circuit is operating
properly. Credit allowances are calculated on the basis of a 30-day
month; and the credit shall be a pro-rata allowance against the Service
Charge for the interrupted Service based on the duration of the
interruption, as follows:
DURATION OF INTERRUPTION: AMOUNT OF CREDIT
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First 30 minutes: None 30 minutes to 3 hours: 1/10 day
Each additional 3 hour period (or fraction thereof): 1/5 day
Two or more interruptions of 15 minutes or more during any one 24-hour
period shall be considered a single interruption. No more than one full
day's credit will be allowed for any period of 24 hours.
5. LIMITATION OF LIABILITY; LIMITATION OF WARRANTY: EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL BFC BE LIABLE FOR ANY
DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
ACTUAL OR PUNITIVE, OR ANY LOST PROFITS OF ANY KIND, ARISING OUT OF
MISTAKES, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS, OR DEFECTS
IN TRANSMISSION, (INCLUDING THOSE WHICH MAY BE REQUIRED FOR COMPLIANCE
WITH RULES OR ORDERS OF REGULATORY OR JUDICIAL AUTHORITIES), ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE OBLIGATIONS OF BFC HEREUNDER.
CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF
BFC'S PERFORMANCE HEREUNDER SHALL BE CREDIT FOR SERVICE INTERRUPTION AS
PROVIDED IN SECTION 4, ABOVE OR APPLICABLE TARIFF. BFC MAKES NO
WARRANTY, EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY,
MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY SERVICE,
OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED
AND DISCLAIMED.
6. CANCELLATION: (A) If a Service Commencement Date does not occur
within 90 days after the Requested Service Date, Customer may cancel this
Agreement with respect to such Service without liability for any
cancellation charge, by 30 days written notice to BFC. (B) Except as
permitted in subsection (A), if Customer cancels any Service, or if BFC
terminates any Service pursuant to Section 3 above, then Customer shall
pay BFC a cancellation charge in the amount of 50% of the remaining
Service Charge payable during the remainder of the Term. (C) Either
party may cancel this Agreement without liability if BFC is prohibited
from furnishing Service or if any material rate or term contained herein
is substantially changed by final order of a court, administrative agency
or other tribunal of competent jurisdiction.
7. NON-TARIFFED SERVICES AND EQUIPMENT. The provision by BFC and the
purchase or lease by Customer of non-tariffed services and/or equipment
in connection with this Agreement shall be subject to the terms and
conditions of this Agreement except as superseded by the terms and
conditions of any pertinent addenda attached hereto.
8. FORCE MAJEURE: If BFC's performance hereunder is impaired by any
cause beyond BFC's reasonable control, including without limitation acts
of God, fire, explosion, materially adverse weather condition, inability
to obtain needed utilities or services, accidents, breakdown of
equipment, machinery or facilities, radiation, compliance with applicable
law or regulation, public emergency, civil strife, war or strike ("Force
Majeure Condition"), then such performance shall be excused to the extent
of such impairment. BFC shall resume performance with reasonable
dispatch after cessation of the Force Majeure Condition. If BFC's
performance is impaired by a Force Majeure Condition for a period
exceeding sixty (60) days, Customer may cancel the affected Service
without liability for a cancellation charge.
9. ADDITIONAL PROVISIONS: (A) NON-WAIVER. The failure of either party
to give notice of default or to enforce or insist upon compliance with
any of the terms or conditions of this Agreement shall not constitute a
waiver of any term or condition hereof, and the waiver of any term or
condition of this Agreement, or the granting of an extension of time for
performance shall not constitute a waiver or extension of time with
respect to any other matter, including future application of the same
provision. (B) DISPUTES - ARBITRATION. Except for disputes regarding
Customer's failure to pay for Service as provided in this Agreement, if
any dispute cannot be resolved by negotiation between the parties, either
party may by notice require that the dispute by submitted to binding
arbitration by a single arbitrator, at a location reasonably selected by
the party giving such notice, under the Commercial Arbitration Rules of
the American Arbitration Association. (C) ENTIRE AGREEMENT. This
Agreement, including Addenda and matters incorporated herein by
reference, contains the entire understanding of the parties and
supersedes any prior quotations, proposals, arrangements, or
understandings relating to the subject matter hereof. No subsequent
agreement between the parties
concerning Service shall be effective unless contained in a writing
signed by both parties. (D) ASSIGNMENT. Customer may not assign or
transfer its rights or obligations under this Agreement without the prior
written consent of BFC, which shall not be unreasonably withheld. (E)
NOTICES. Required or permitted notices shall be in writing and delivered
by registered or certified mail return receipt requested, postage
prepaid, if to Customer, to a person identified as a "Service Contact"
and if to BFC, to Contract Administrator, Xxxxxx Fiber Properties, Inc.,
000 Xxxxx Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxx and Country Missouri 63017, or
as otherwise provided by proper notice hereunder, and the effective date
of any notice under this Agreement shall be the date of receipt or
refusal of delivery. (F) REGULATORY JURISDICTION. Provision by BFC of
Service and other matters related to this Agreement are subject to
applicable federal, state and local regulatory authority.
(G) SEVERABILITY. Each Service described in a Service Description is
deemed a separate Service, and termination of any Service shall not
affect any other Services. (H) PARTIAL INVALIDITY. If any provision of
this Agreement shall be held invalid or unenforceable under applicable
law, the remainder shall not thereby be affected and shall be given full
effect. (I) CONFIDENTIALITY. Except with consent of the other party or
as required by law or court order, neither party will disclose the
existence of this Agreement or any information regarding its terms or the
parties' performance hereunder ("Confidential Information") to any third party.
10. SPECIAL PROVISIONS:
Except with respect to non-tariffed services and Leased Equipment, all
terms and conditions of this Agreement are subject to applicable state
and federal tariffs which are
incorporated herein by reference. In case of any conflict between the
provisions hereof and relevant tariff provisions, the provisions of the
tariff shall control. Information
regarding tariffs can be obtained from BFC's sales offices or by
contacting the Contract Administrator at the address in section 9(E) above.
Form effective 1/97.
XXXXXX AGREEMENT 73606 DATE___________
FIBER TELECOMMUNICATIONS SERVICE AGREEMENT
COMMUNICATIONS
CUSTOMER INFORMATION
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ORDERING INFORMATION
ORDERED BY XXXX XXXXX PO NUMBER______________ DATE 4/2/98
COMPANY NETVOICE TECHNOLOGIES PHONE 000-000-0000 FAX 000-000-0000
STREET 00000 XXXXXXXX XX. TYPE OF BUSINESS IP TELEPHONY
CITY, STATE, ZIP XXXXXX, XX 00000
BILLING INFORMATION
COMPANY NAME SAME AS ABOVE PHONE______________________________
XXXX TO_________________________ FAX________________________________
STREET__________________________ CITY, STATE, ZIP___________________
CREDIT INFORMATION
BUSINESS CUSTOMER
[ ] SOLE PROPRIETORSHIP [ ] PARTNERSHIP [ ] CORPORATION
FEDERAL TAX ID_______________
YEARS IN BUSINESS____ BANK NAME______________ CONTACT________ PHONE______
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
INDIVIDUAL SS#_________________________ CREDIT SCORE_____________________
SERVICE INFORMATION SUMMARY
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[ ] Move [ ] Add To Reference Agreement #___________________
[ ] New Install [ ] Replace Comments____________________________
Product Type [ ] Local Switched [ ] Dedicated [ ] Long Distance
[ ] Other Requested Service Date__________________________
SERVICE CONTACTS
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Name ______________ Phone____________ Physical Address: Room, Floor _____
Name ______________ Phone____________ Street_____________________________
Test Turn Up Pager#__________ Building Access Pager #____________________
City, State, Zip___________________________________________
PROVIDERS
Current Service Provider_______________________________
Current Equipment Provider_____________________________
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LENGTH OF TOTAL CHARGES
TELECOMMUNICATIONS SERVICES TERM QUANTITY INSTALL RECURRING FORMS ATTACHED
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Gateway S1 Digital PBX Trunks 2 3 2265 2490
Outbound
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Gateway S1 Digital PBX Trunk 2 1 865 1041
2-way DID
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Houston For Internal Use
------- Only
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Other Special Service Request
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Total Agreement 3130 3531
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[ ] Customer responsible for cancellation of current carrier service. If
yes, Customer initials______________________
[ ] Xxxxxx Fiber Communications responsible for cancellation of current
carrier service
ACCEPTANCE
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Subject to the terms and conditions on the reverse side hereof.
Agreed By /s/ XXXX XXXXX Title President Date 9/2/98
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Customer
Agreed By /s/ Title Dir. Mkting Date 4/2/98
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Xxxxxx Fiber Communications
Sales Representative
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Xxxxxx Fiber Communications
Code______________ Phone #___________________ Date________________
Xxxxx - Xxxxxx Corporate Canary - Customer Copy Pink - Regional Office
Copy
XXXXXX
FIBER
PROPERTIES
ORDERED BY XXXX XXXXX PO NUMBER 98021900100 DATE 02/19/98
COMPANY NETVOICE TECHNOLOGIES PHONE 000-000-0000 FAX 000-000-0000
STREET 00000 XXXXXX XXXXXXX TYPE OF BUSINESS Telecommunications
SUITE 1118
CITY, STATE, ZIP XXXXXX, XX 00000
BILLING INFORMATION
CO NAME NetVoice Technologies PHONE 000-000-0000
XXXX TO Accounts Payable FAX 000-000-0000
STREET 00000 Xxxxxx Xxxxxxx XXXX, XX Xxxxxx, XX 00000
Suite 1118
CREDIT INFORMATION
BUSINESS CUSTOMER
[ ] SOLE PROPRIETORSHIP [ ] PARTNERSHIP [X] CORPORATION
FEDERAL TAX ID_______________
YEARS IN BUSINESS____ BANK NAME______________ CONTACT________ PHONE______
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
TRADE REFERENCE______________________ PHONE_____________
INDIVIDUAL SS#_________________________ CREDIT SCORE_____________________
SERVICE INFORMATION SUMMARY
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Requested Service Date: 03/31/98
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[ ] Move [ ] Add To Reference Agreement #___________________
[X] New Install [ ] Replace Comments________________________________
Product Type [ ] Local Switched [ ] Dedicated [ ] Data [ ] Long
Distance [ ] Other
SERVICE CONTACTS
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Name Xxxx Xxxxxxx Phone 000-000-0000 Physical Address: Rm, Fl _____
Name Xxxx Xxxxx Phone 000-000-0000 Street_____________________________
Test Turn Up Pager#__________ Building Access Pager #____________________
City, State, Zip___________________________________________
PROVIDERS
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Current Service Provider_______________________________
Current Equipment Provider Inter-Tel
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LENGTH OF TOTAL CHARGES
TELECOMMUNICATIONS SERVICES TERM QTY INSTALL RECURRING FORMS ATTACHED
Collaction Facilities 1 1 $0.00 $378.00
AC Power 20 1 $0.00 $59.60
Other Special Service Request
Total Agreement $0.00 $437.60
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[ ] Customer responsible for cancellation of current carrier service. If
yes, Customer initials______________________
[ ] Xxxxxx Fiber Communications responsible for cancellation of current
carrier service
ACCEPTANCE
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SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE HEREOF.
AGREED BY (CUSTOMER): XXXX XXXXX TITLE PRESIDENT DATE 8/19/98
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AGREED BY (BFC): TITLE DATE
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SALES REPRESENTATIVE (BFC):_________________________________
CODE______________ PHONE #___________________ DATE________________
