TELECOMMUNICATIONS SERVICES AGREEMENT
This TELECOMMUNICATIONS SERVICES AGREEMENT (hereinafter referred to
as the "Agreement" or the "TSA") is entered into this 7th day of September,
1995, by and between Coastal Telephone Services Limited Company, a Texas
Limited Liability Corporation, with its principal office at 0 Xxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000, ("CTSLC") and Axces, Inc., a Delaware Corporation
with its principal office at 0000 Xxxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx, 00000
("Customer").
WITNESSETH;
CTSLC agrees to provide and Customer agrees to accept switched
telecommunications services ("Switched Services") and other associated
services (collectively the "Services"), (i) as described in the Services
Schedules identified herewith, (ii) subject to the terms and conditions
contained in this Agreement, and (iii) in conformity with each Service
Request (described below) which is accepted hereunder.
In the event of a conflict between the terms of this Agreement the
Service Schedule/Pricing Exhibit and the Service Request(s), the following
order of precedence will prevail: (1) Service Schedule/Pricing Exhibit, and
(2) the Agreement.
NOW, THEREFORE, in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. TERM.
(A) EFFECTIVE DATE This Agreement shall be effective between the
parties as of the date first written above (the "Effective Date")
and shall continue for a period of five (5) years (TERM). Upon the
expiration of the Term, the Service in question will continue to be
provided subject to termination by either party upon thirty (30)
days prior written notice to the other party. Customer shall be
liable for all charges associated with actual usage of the Service
in question during the Term and any extension thereof.
(B) START OF SERVICE CTSLC's obligation to provide and Customer's
obligation to accept and pay for non-usage sensitive charges for
Service shall be binding to the extent provided for in this
Agreement upon the submission of an acceptable Service Request to
CTSLC by Customer. Customer's obligation to pay for usage sensitive
charges for Switched Services shall commence with respect to any
Service as of the date of the Service in question is used ("Start of
Service"). Start of Service for particular services shall be further
described in the Service Schedule relevant to the Switched Service
in question.
(C) SERVICE SCHEDULES Services to be provided under this Agreement
shall be described in the CTSLC Service Schedule which is subscribed
to by authorized representatives of CTSLC and become a part of this
Agreement to the extent that it describes the particular Services
therefor, specific terms and other information necessary or
appropriate for CTSLC to provide such Service(s) to Customer.
(D) SERVICE REQUESTS Customer's requests to initiate or cancel
Services shall be described in an appropriate CTSLC Service Request
("Service Requests"). Service Requests may consist of machine
readable tapes, facsimiles or other means approved by CTSLC.
Further, Service Requests shall specify all reasonable information,
as determined by CTSLC, necessary or appropriate for CTSLC to
provide the Service(s) in question, which shall include without
limitation, the type, quantity and end point(s) (when necessary) of
circuits comprising a Service Interconnection as described in the
Service Request. After CTSLC's receipt and verification of a valid
Service Request for SWITCHED Service (as defined in the Service
Schedule) requiring a change in the primary interexchange carrier
("PIC"), CTSLC agrees to (i) submit the ANI(s) relevant to such
Service Requests to Local Exchange Carriers ("LECs"), with which
CTSLC currently has electronic interface capabilities, within two
(2) business days, and (ii) submit the ANI(s) relevant to such
Service Requests to those LEC's with which CTSLC does not have
electronic interface capabilities within a reasonable time, not to
exceed thirty (30) business days.
2. CANCELLATION:
(A) CANCELLATION CHARGE At any time after the Effective Date,
Customer may cancel this Agreement if Customer provides written
notification thereof to CTSLC not less than thirty (30) days prior
to the effective date of cancellation. In such case (or in the event
CTSLC terminates this Agreement as provided in Section 8), Customer
shall pay to CTSLC all charges for Service provided through the
effective date of such cancellation plus a cancellation charge (the
"Cancellation Charge") equal to the difference between the favored
price the Customer is receiving and the price the customer would
have been paying based on the term contact the Customer fulfilled at
the time of cancellation as illustrated in Exhibit A (Pricing
Schedule).
(B) CANCELLATION WITHOUT CHARGE Notwithstanding anything to the
contrary contained in Subsection 2(A) above, Customer may cancel
this Agreement without incurring any cancellation charge if (i) CTSLC
fails to provide a network as warranted in Section 9 below; (ii)
CTSLC fails to deliver call detail records promptly based on the
frequency selected by Customer (i.e., monthly, weekly or daily); or
(iii) CTSLC fails to submit ANI(s) relevant to such Service Requests
to the LECs within the time period described in Subsection 1(E)
above. Provided, however, Customer must give CTSLC written notice of
any such default and an opportunity to cure such default within five
(5) days of the notice. In the event CTSLC fails to cure any such
default within the five-day period on more than three (3) occasions
within any six (6) month period, Customer may cancel this Agreement
without incurring any cancellation charge.
3. CUSTOMER'S END USERS.
(A) END USERS Customer will obtain and upon CTSLC's request provide
CTSLC (within five (5) business days of the date of the request) a
written Letter of Agency ("LOA") acceptable to CTSLC [or with any
other means approved by the Federal Communications Commission
("FCC")], for each ANI indicating the consent of the end users of
Customer ("End Users") to be served by Customer and transferred (by
way of change such End User's designated PIC) to the CTSLC network
prior to order processing. Each LOA will provide, among other
things, that the End Users have consented to the transfer being
performed by Customer, or Customer's designee. When applicable,
Customer will be responsible for notifying End Users, in writing (or
by any other means approved by the FCC) that (i) a transfer charge
will be reflected on their LEC xxxx for effecting a change in their
primary interexchange carrier ("PIC"), (ii) the entity name under
which their interstate, intrastate and/or operator services will be
billed (if different from Customer), and (iii) the "primary"
telephone number(s) to be used for maintenance and questions
concerning their long distance service and/or billing. Customer
agrees to send CTSLC a copy of the documentation Customer uses to
satisfy the above requirements promptly upon request of CTSLC. CTSLC
may change the foregoing requirements for Customer's confirming
orders and/or for notifying End Users regarding the transfer charge
at any time in order to conform with applicable FCC and state
regulations. Provided, however, Customer will be solely responsible
for ensuring that the transfer of End Users to the CTSLC network
conforms with applicable FCC and state regulations, including without
limitation, the regulations established by the Fcc with respect to
verification of orders for long distance service generated by
telemarketing as promulgated in 47 C.F.R., Part 64, Subpart K,
Section 64.1100 or any successor regulation(s).
(B) TRANSFER CHARGES/DISPUTED TRANSFERS Customer agrees that it is
responsible for (i) all charges exceeding one hundred U.S.Dollars
($100.00) incurred by CTSLC to change the PIC of all End Users to
the CTSLC network, (ii) all charges incurred by CTSLC to change End
Users back to their previous PIC arising from disputed transfers to
the CTSLC network and (iii) any other damages suffered by or awards
against CTSLC resulting from disputed transfers.
(C) EXCLUDED ANIS CTSLC has the right to reject any ANI supplied by
Customer for any of the following reasons: (i) CTSLC is not
authorized to provide or does not provide long distance services in
the particular jurisdiction in which the ANI is located, (ii) a
particular ANI submitted by Customer is not in proper form, (iii)
Customer is not certified to provide long distance services in the
jurisdiction in which the ANI is located, (iv) Customer is in
default of this Agreement, (v) Customer fails to cooperate with
CTSLC in implementing reasonable verification processes determined
by CTSLC to be necessary or appropriate in the conduct of business,
or (vi) any other circumstance reasonably determined by CTSLC which
would adversely affect CTSLC's performance under this Agreement or
CTSLC's general ability to transfer its other customers or other end
users to the CTSLC network, including without limitation, CTSLC's
ability to electronically effect PIC changed with LECs. In the event
CTSLC rejects an ANI, CTSLC will notify Customer as soon as possible
of its decision specifically describing the rejected
ANI and the reason(s) for rejecting that ANI, and will not incur any
further liability under this Agreement with regard to that ANI.
Further, and ANI requested by Customer for Switched Service may be
deactivated by CTSLC if no Switched Service xxxxxxxx relevant thereto are
generated in any three (3) consecutive calendar months/billing period.
CTSLC will be under no obligation to accept ANIs within the three(3) full
calendar month period preceding the scheduled expiration of the Term.
(D) RECORDS Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Switched Service, including, but not
limited to, appropriate and valid LOAs, from End Users for a period of not
less than 12 months or such other longer period as may be required by
applicable law, rule or regulation. Customer shall indemnify CTSLC for
any costs, charges or expenses incurred by CTSLC arising from disputed
PIC selections involving Switched Service to be provided to Customer for
which Customer cannot produce an appropriate LOA relevant to the ANI and
PIC charge in question, or when CTSLC is not reasonably satisfied that
the validity of a disputed LOA has been resolved.
(E) CUSTOMER SERVICE Customer will be solely responsible for billing End
Users and providing the End Users with customer service. Customer agrees
to immediately notify CTSLC in the event of End User notifies Customer of
problems associated with the Service, including with limitation, excess
noise, echo, or loss of Service.
4. CUSTOMER'S RESPONSIBILITIES.
(A) EXPEDITE CHARGES In the event Customer requests expeditious Service
and/or changes to Service Orders and CTSLC agrees to such request, CTSLC
will pass through the charges assessed by any supplying parties (e.g.,
local access providers) involved at the same rate to Customer. CTSLC may
further condition its performance of such request upon Customer's payment
of additional charges to CTSLC.
(B) FRAUDULENT CALLS Customer shall indemnify and hold CTSLC harmless
from all costs, expenses, claims or actions arising from fraudulent calls
of any nature which may comprise a portion of the Service to the extent
that the party claiming the call(s) in question to be fraudulent is (or had
been at the time of the call) an End User of the Service through Customer
or an end user of the Service through Customer's distribution channels.
Customer shall not be excused from paying CTSLC for Service provided to
Customer or any portion thereof on the basis that fraudulent calls
comprised a corresponding portion of the Service. In the event CTSLC
discovers fraudulent calls being made (or reasonably believes fraudulent
calls are being made), nothing contained herein shall prohibit CTSLC from
taking immediate action (without notice to Customer) that is reasonably
necessary to prevent such fraudulent calls from taking place, including
without limitation, denying Service to particular ANIs or terminating
Service to or from specific locations.
5. CHARGES AND PAYMENT TERMS.
(A) PAYMENT Unless otherwise provided herein, CTSLC xxxxxxxx for Service
are made on a monthly basis (or such other basis as may be mutually agreed
to by the parties) following Start of Service. Subject to Subsection 5(D)
below, Service shall be billed at the rates set forth on the Pricing
Exhibit executed by the parties and attached hereto and incorporated
herewith, and Service Requests, as the case may be. Customer will pay each
CTSLC invoice in full for Switched Service within thirty (30) days of the
invoice date set forth on each CTSLC invoice to Customer ("Due Date"). If
payment is not received by CTSLC on or before the Due Date, Customer shall
also pay a late fee in the amount of the lesser of one and one-half percent
(1-1/2%) of the unpaid balance of the Service charges per month or the
maximum lawful rate under applicable state law.
(B) DEFINITIONS Time of day rate periods (including CTSLC Recognized
National Holidays) will be described by industry standards.
(C) TAXES Customer acknowledges and understands that CTSLC computes all
charges herein exclusive of any applicable federal, state or local use,
excise, gross receipts, sales and privilege taxes, duties, fees or similar
liabilities (other than general income or property taxes), whether charged
to or against CTSLC or Customer because of the Service furnished to
Customer ("Additional Charges"). Customer shall pay such Additional
Charges in addition to all other charges provided for herein.
(D) MODIFICATION OF CHARGES CTSLC reserves the right to eliminate
Service offerings (which charge modifications shall not exceed then-current
generally available CTSLC charges for comparable services), upon not less
than sixty (60) days prior notice to Customer, which notice will state the
effective date for the charge modification.
(E) BILLING DISPUTES Notwithstanding the foregoing, late fees shall
apply (but shall not be due and payable for a period of sixty (60) days
following the Due Date therefor) for amounts reasonably disputed by
Customer, provided Customer: (i) pays all undisputed charges on or
before the Due Date, (ii) presents a written statement of any billing
discrepancies to CTSLC in reasonable detail on or before the Due Date of
the invoice in question, and (iii) negotiates in good faith with CTSLC
for the purpose of resolving such dispute within said sixty (60) day
period. In the event such dispute is resolved in favor of Customer,
Customer will receive a credit for the disputed charges in question and
the applicable late fees within ten (10) days of the resolution. In the
event the dispute can not be resolved within such sixty (60) day period
(unless CTSLC has agreed in writing to extend such period) all disputed
amounts together with late fees shall become due and payable, and this
provision shall not be construed to prevent Customer from pursuing any
available legal remedies. CTSLC shall not be obligated to consider any
Customer notice of billing discrepancies which are received by CTSLC
more than sixty (60) days following the Due Date of the invoice in
question.
(F) SUSPENSION OF SERVICE In the event charges due pursuant to CTSLC's
invoice are not paid in full by the Due Date, CTSLC shall have the right,
after giving Customer ten
(10) days prior notice, to suspend all or any portion of the Service to
Customer ("Suspension Notice") until such time (designated by CTSLC in its
Suspension Notice) as customer has paid in full ALL charges then due to
CTSLC, including any late fees. Following such payment, service to
Customer shall be reinstated ONLY when Customer provides CTSLC with
satisfactory assurance of Customer's ability to pay for Service (i.e., a
deposit, letter of credit or other means acceptable to CTSLC) and
Customer's advance payment of the cost of reinstating the Service. If
Customer fails to make the required payment by the date set forth in the
Suspension Notice, Customer will be deemed to have canceled the Service
suspended effective as of the date of suspension. Such cancellation shall
not relieve Customer for payment of applicable cancellation charges as
described in Section 2.
6. CREDIT: SEE SECURITY AGREEMENT ATTACHED.
7. CREDITWORTHINESS: If at anytime there is a material adverse change in
Customer's creditworthiness, then in addition to any other remedies available
to CTSLC, CTSLC may elect, in its sole discretion, to exercise one or more of
the following remedies: (i) cause Start of Service for Service described in a
previously executed Service Request to be withheld; (ii) cease providing
Service pursuant to a Suspension Notice; (iii) decline to accept a Service
Request or other requests from Customer to provide Service which CTSLC may
otherwise be obligated to accept and/or (iv) condition its provision of
Service or acceptance of a Service Request on a Customer's assurance of
payment which shall be a deposit or such other means to establish reasonable
assurance of payment. An adverse material change in Customer's
creditworthiness shall include, but not be limited to: (i) Customer's default
of its obligations to CTSLC under this or any other agreement with CTSLC;
(ii) failure of Customer to make full payment of charges due hereunder on or
before the Due Date on three (3) or more occasions during any period of
twelve (12) or fewer months or Customer's failure to make such payment on or
before the Due Date in any two (2) consecutive months; (iii) acquisition of
Customer (whether in whole or by a majority or controlling interest) by an
entity which is insolvent, which is subject to bankruptcy or insolvency
proceedings, which owes past due amounts to CTSLC or any entity affiliated
with CTSLC or which is a materially greater credit risk than Customer; or,
(iv) Customer's being subject to or having filed for bankruptcy or insolvency
proceedings or the legal insolvency if Customer.
8. REMEDIES FOR BREACH. In the event Customer is in breach of this Agreement,
including without limitation, failure to pay charges due hereunder by the date
stated in the Suspension Notice described in Subsection 5(F), CTSLC shall have
the right, after giving Customer five (5) days prior notice, and in addition to
foreclosing any security interest CTSLC may have, to (i) terminate this
Agreement; (ii) withhold billing information from Customer; and/or (iii) contact
the End Users (for whom calls are originated and terminated solely over
facilities comprising the CTSLC network) directly and xxxx each End Users
directly until such time as CTSLC has been paid in full for the amount owed by
Customer. If Customer fails to make payment by the date stated in the
Suspension Notice and CTSLC, after giving Customer five (5) days prior notice,
terminates this Agreement as provided in the Section 8, such termination shall
not relieve Customer for payment of applicable cancellation charges as described
in Section 2 above.
9. WARRANTY. CTSLC will use reasonable efforts under the circumstances to
maintain its overall network quality. The quality of Service provided hereunder
shall be consistent with telecommunications common carrier industry standards,
government regulations and sound business practices. CTSLC MAKES NO OTHER
WARRANTIES ABOUT THE SERVICE PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR USE.
10. LIABILITY; GENERAL INDEMNITY; REIMBURSEMENT.
(A) LIMITED LIABILITY. IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF
CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY
MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER.
(B) GENERAL INDEMNITY. In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of the service through Customer, then
Customer agrees to forever indemnify and hold CTSLC, its affiliated
companies and any third-party provider or operator of facilities employed
in provision of the Service harmless from and against any and all claims,
demands, suits, actions, losses, damages, assessments or payments which
those parties may assert arising out of or relating to any defect in the
Service.
(C) REIMBURSEMENT. Customer agrees to reimburse CTSLC for all reasonable
costs and expenses incurred by CTSLC due to CTSLC's direct participation
(either as a party or witness) in any administrative, regulatory or
criminal proceeding concerning Customer if CTSLC's involvement in said
proceeding is based solely on CTSLC's provision of Services to Customer.
11. FORCE MAJEURE. If CTSLC's performance of this Agreement or any obligation
hereunder is prevented, restricted or interfered with by causes beyond its
reasonable control including, but not limited to, Acts of God, fire, explosion,
vandalism, cable cut, storm or other similar occurrence, any law, order,
regulation, direction, action or request of the United States government, or
state or local governments, or any department, agency, commission, court,
bureau, corporation or other instrumentality of any one or more such
governments, or of any civil or military authority, or by national emergency,
insurrection, riot, war, strike, lockout or work stoppage or other labor
difficulties, or supplier failure, shortage, breach or delay, then CTSLC shall
be excused from such performance on a day-to-day basis to the extent of such
restriction or interference. CTSLC shall proceed to perform with reasonable
dispatch whenever such causes are removed or cease.
12. STATE CERTIFICATION. Customer warrants that in all jurisdictions in
which it provides long distance services that require certification, it has
obtained the necessary certification from the appropriate governmental
authority. Further, if required by CTSLC, Customer agrees to provide
proof of such certification acceptable to CTSLC. In the event Customer is
prohibited, either on a temporary or permanent basis from conducting its
telecommunications operations in a given state, Customer shall (i)
immediately notify CTSLC by facsimile, and (ii) send written notice to CTSLC
within twenty-four (24) hours of such prohibition.
13. INTERSTATE/INTRASTATE SERVICE. Except with respect to Switched Service
specifically designated as intrastate Service or international Service, the
rates provided to Customer in a Service Schedule are applicable only to
Switched Service if such Service is used for carrying interstate
telecommunications (i.e., Service subject to FCC jurisdiction). CTSLC shall
not be obligated to provide Switched Service with end points within a single
state or Switched Service which originates/terminates at points both of which
are situated within a single state. In those states where CTSLC is
authorized to provide intrastate service (i.e., telecommunications
transmission services subject to the jurisdiction of state of state
regulatory authorities), CTSLC will, at its option, provide intrastate
Service pursuant to applicable state laws, regulations and applicable tariff,
if any, filed by CTSLC with state regulatory authorities as required by
applicable law.
14. AUTHORIZED USE OF CTSLC NAME. Without CTSLC's prior written consent,
Customer shall not (i) refer to itself as an authorized representative of
CTSLC whenever it refers to the Services in promotional, advertising or other
materials, or (ii) use CTSLC's logos, trade marks, service marks, or any
variations thereof in any of its promotional, advertising or other materials.
Additionally, Customer shall provide to CTSLC for its prior review and
written approval, all promotions, advertising or other materials or activity
using or displaying CTSLC's name or the Services to be provided by CTSLC.
Customer agrees to change or correct, at Customer's expense, any such
material or activity which CTSLC, in its sole judgment, determines to be
inaccurate, misleading or otherwise objectionable. Customer is explicitly
authorized to only use the following statements in its sales literature (i)
"Customer utilizes the CTSLC network", (ii) Customer utilizes CTSLC's
facilities", (iii) "CTSLC provides only the network facilities", and (iv)
"CTSLC is our network services provider".
15. NOTICES. Notices under this Agreement shall be in writing and delivered
to the person identified below at the offices of the parties as they appear
below or as otherwise provided for by proper notice hereunder. Customer
shall notify CTSLC in writing if Customer's billing address is different than
the address shown below. The effective date for any notice under this
Agreement shall be the date of actual receipt of such notice by the
appropriate party, notwithstanding the date of mailing.
IF TO CTSLC: IF TO CUSTOMER
Coastal Telephone Company AXCES, INC.
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2 Riverway Suite 800 2500 Wilcrest
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Xxxxxxx, Xxxxx 00000 3rd Floor
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ATTN: President Xxxxxxx, XX 00000
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16. NO WAIVER. No term or provision of this Agreement shall be deemed waived
and no breach or default shall be deemed excused unless such waiver or consent
shall be in writing and signed by the party claimed to have waived or consented.
A consent to waiver of or excuse for a breach or default by either party,
whether express or implied, shall not constitute a consent to, waiver of, or
excuse for any different or subsequent breach or default.
17. PARTIAL INVALIDITY; GOVERNMENT ACTION.
(A) PARTIAL INVALIDITY. If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in connection
with this Agreement shall be invalid or unenforceable under applicable law,
rule or regulation, that part shall be ineffective to the extent of such
invalidity only, without in any way affecting the remaining parts of that
provision or the remaining provisions of this Agreement. In such event,
Customer and CTSLC will negotiate in good faith with respect to any such
invalid or unenforceable part to the extent necessary to render such part
valid and enforceable.
(B) GOVERNMENT ACTION. Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an affected
portion of the Service if any material rate or term contained herein and
relevant to the affected Service is substantially changed (to the detriment
of the terminating party) or found to be unlawful or the relationship
between the parties hereunder is found to be unlawful by order of the
highest court of competent jurisdiction to which the matter is appealed,
the FCC, or other local, state or federal government authority of competent
jurisdiction.
18. EXCLUSIVE REMEDIES. Except as otherwise specifically provided for herein,
the remedies set forth in this Agreement comprise the exclusive remedies
available to either party at law or in equity.
19. USE OF SERVICE. Upon CTSLC's acceptance of a Service Request hereunder,
CTSLC will provide the Service specified therein to Customer upon condition that
the Service shall not be used for any unlawful purpose. The provision of
Service will not create a partnership or joint venture between the parties or
result in a joint communications service offering to any third parties, and
CTSLC and Customer agree that this Agreement, to the extent it is subject to FCC
regulation, is an inter-carrier agreement which is not subject to the filing
requirement of Section 211(a) of the Communications Act of 1934 (47 U.S.C.
Section 211 (a)) as implemented in 47 C.F.R. Section 43.51.
20. CHOICE OF LAW; FORUM.
(A) LAW. This Agreement shall be construed under the laws of the State of
Texas without regard to choice to law principles.
(B) FORUM. Any legal action or proceeding with respect to this Agreement
may be brought in the Courts of the State of Texas in and for the county of
Xxxxxx. By execution of this Agreement, both Customer and CTSLC hereby
submit to such jurisdiction, hereby expressly waiving whatever rights may
correspond to either of them by reason of their
present or future domicile. In furtherance of the foregoing, Customer and
CTSLC hereby agree to service by U.S. Mail at the notice addresses
referenced in Section 15. Such service shall be deemed effective upon the
earlier of actual receipt or seven (7) days following the date of posting.
21. PROPRIETARY INFORMATION.
(A) CONFIDENTIAL INFORMATION. The parties understand and agree that the
terms and conditions of this Agreement, all documents referenced (including
invoices to Customer for Service provided hereunder) herein, communications
between the parties regarding this Agreement or the Service to be provided
hereunder (including price quotes to Customer for any Service proposed to
be provided or actually provided hereunder), as well as such information
relevant to any other agreement between the parties (collectively
"Confidential Information"), are confidential as between Customer and
CTSLC.
(B) LIMITED DISCLOSURE. A party shall not disclose Confidential
Information unless subject to discovery or disclosure pursuant to legal
process, or to any other party other than the directors, officers, and
employees of a party or a party's agents including their respective
brokers, lenders, insurance carriers or bona fide prospective purchasers
who have specifically agreed in writing to nondisclosure of the terms and
conditions hereof. Any disclosure hereof required by legal process shall
only be made after providing the non-disclosing party with notice thereof
in order to permit the non-disclosing party to seek an appropriate
protective order or exemption. Violation by a party or its agents of the
foregoing provisions shall entitle the non-disclosing party, as its option,
to obtain injunctive relief without a showing or irreparable harm or injury
and without bond.
(C) PRESS RELEASES. The parties further agree that any press release,
advertisement or publication generated by a party regarding this Agreement,
the Service provided hereunder or in which a party desires to mention the
name of the other party or the other party's parent or affiliated
company(ies), will be submitted to the non-publishing party for its written
approval prior to publication.
(D) SURVIVAL OF CONFIDENTIALITY. The provisions of the Section 21 will be
effective as of the date of this Agreement and remain in full force and
effect for a period which will be the longer of (i) one (1) year following
the date of this Agreement, or (ii) one (1) year from the termination of
all Service hereunder.
22. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors or assigns,
provided, however, that Customer shall not assign or transfer its rights or
obligations under this Agreement without the prior written consent of CTSLC,
which consent shall not be unreasonably withheld, and further provided that any
assignment or transfer without such consent shall be void.
23. GENERAL.
(A) SURVIVAL OF TERMS. The terms and provisions contained in this
Agreement that by
their sense and context are intended to survive the performance thereof by
the parties hereto shall so survive the completion of performance and
termination of this Agreement, including, without limitation, provisions
for indemnification and the making of any and all payment due hereunder.
(B) HEADINGS. Descriptive heading in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
(C) INDUSTRY TERMS. Words having well-known technical or trade meanings
shall be so construed, and all listings of items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to
those listed, as the context reasonably requires.
(D) RULE OF CONSTRUCTION. No rule of construction requiring
interpretation against the drafting party hereof shall apply in the
interpretation of this Agreement.
24. ENTIRE AGREEMENT. This Agreement consists of (i) all the terms and
conditions contained herein, and, (ii) all documents incorporated herein
specifically by reference. This Agreement constitutes the complete and
exclusive statement of the understandings between the parties and supersedes all
proposals and prior agreements (oral or written) between the parties relating to
Service provided hereunder. No subsequent agreement between the parties
concerning the Service shall be effective or binding unless it is made in
writing and subscribed to by additional representatives of Customer and CTSLC.
IN WITNESS WHEREOF, the parties have executed this Telecommunications
Services Agreement on the date first written above.
COASTAL TELEPHONE SERVICES LIMITED COMPANY AXCES, INC.
------------------------
Company Name
/s/ [Illegible] /s/ Xxxxxxx Avignon
-------------------------------- ------------------------
By By
President Chairman, CEO
-------------------------------- -------------------------
ITS ITS
9/7/95 9/07/95
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Date Date
