SWITCHED SERVICES AGREEMENT
This Switched Services Agreement ("Agreement") is made this 29th day of April,
1998, by and between ORIX Global Communications, Inc., a Nevada Corporation with
it's principal office located at 0000 X. Xxxxxxxx Xxxx, Xxxxx #X-000, Xxx Xxxxx,
Xxxxxx 00000 ("ORIX") and Qwest Communications Corporation, a Delaware
Corporation with it's principal office located at 000 00xx Xxxxxx, Xxxxxx, XX
00000 ("Qwest" or "CUSTOMER").
RECITAL:
ORIX agrees to provide switched telecommunications services ("Switched Service")
and other associated services (collectively "Service"), as described in Service
Schedule(s) identified herewith and herein incorporated, to Qwest on the
following terms and conditions, and Qwest agrees to accept Service subject to
the specific terms, conditions and charges set forth in the Service Schedule(s)
and pursuant to the terms of this Agreement.
1. EFFECTIVE DATE - MINIMUM SERVICE TERM
A. EFFECTIVE DATE: This Agreement shall be effective between the parties
as of the date first above written. The Recital is herein incorporated
in its entirety.
B. START OF SERVICE: ORIX's obligation to provide and Qwest's obligation
to accept and pay for service shall be binding to the extent provided
for in this Agreement upon the execution of Service Schedule by both
parties and shall commence with respect to any Service as of the later
of the Qwest's designated "Requested Service Date" set forth on each
Service Schedule or the date Service becomes available ("Start of
Service"). Start of Service for particular Switched Services shall be
further described in the relevant Service Schedule(s).
C. MINIMUM SERVICE TERM: Except as otherwise provided herein, the parties'
obligations hereunder with respect to Switched Service shall continue
from the Start of Service Date and over the "Minimum Service Term" set
forth in the relevant Service Schedule. Upon the expiration of the
Minimum Service Term relevant to any Service, the service in question
will continue to be provided on a month-to-month basis subject to
termination by either party upon thirty (30) days prior written notice
to the other party. Qwest shall be liable to pay for all charges
associated with the Service in question during the Minimum Service Term
and month-to-month continuation thereof, as well as any and all charges
for actual and/or minimum usage of the Service whether such usage
occurred during the Minimum Service Term or otherwise.
2. SERVICE SCHEDULES
Service reasonably requested by Qwest hereunder shall be requested on ORIX
Service Schedule subscribed to by authorized representative of Qwest and ORIX.
Each Service Schedule shall reference this Agreement and shall become a part of
this Agreement to the extent that it describes the Service, Requested Service
Date, Service Interconnection, if any, relevant to the Service in question
charges, specific Service terms and other information necessary for ORIX to
provide Service to Qwest.
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3. SERVICE INTERCONNECTIONS
A. TECHNICAL REQUIREMENTS: In order to utilize certain Switched Service, a
connection between Qwest's network ("Qwest Location") and the ORIX
Network at the ORIX designation, point-of-presence facilities ("ORIX
POP") must be established ("Service Interconnection"). Unless otherwise
indicated in a Service Schedule, Qwest shall be responsible for
establishing each Service Interconnection over facilities subject to
ORIX's approval. Service Interconnections shall only be comprised of
DS-1 facilities unless otherwise provided for the Service
Schedule. If a Service Interconnection is proposed to be made via a
local exchange carrier, ORIX may direct Qwest to utilize ORIX's local
serving arrangement, and Qwest will be subject to non-discriminatory
changes therefore from ORIX.
B. MINIMUM MONTHLY USAGE: In the event Qwest fails to deliver a required
Minimum Monthly Usage level in a given calendar month billing period,
Qwest shall pay to ORIX an additional amount for the difference between
Minimum Monthly Usage level and actual usage of the Service
Interconnection in question based upon the charge set forth in the
relevant Service Schedule ("Minimum Usage Charge").
4. QWEST RESPONSIBILITIES
A. QWEST FACILITIES: Qwest has sole responsibility for installation,
testing, operation of any costs associated with facilities, services
and equipment other than that specifically to be provided by ORIX as
described in Service Schedule ("Qwest Facilities"). In no event, will
the untimely installation or non-operation of Qwest facilities relieve
Qwest of its obligation to pay charges for Service provided by ORIX. If
Qwest is responsible for establishing a Service Interconnection over
facilities other than those controlled by ORIX, ORIX shall not be
obligated to provide Service relevant thereto if the Service
interconnection in question is not activated within sixty (60) days
following the requested Service Date.
B. EXPEDITE CHARGES: Should Qwest request expeditious Service and/or
changes to orders and ORIX agrees to such request, ORIX will pass
through the charges assessed by any supplying parties involved at the
same rate to Qwest. ORIX may further condition its agreement with such
request upon Qwest's payment of additional charges to ORIX.
C. FRAUDULENT CALLS: Qwest shall indemnify and hold ORIX harmless from all
costs, expenses, or 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) Qwest or an end user of the Service
through Qwest's distribution channels. Qwest shall not be excused from
paying ORIX for Service provided to Qwest, or any portion thereof on
the basis that fraudulent calls comprise a corresponding portion of the
Service.
D. LICENSES: Qwest is solely responsible for all licenses, approvals or
regulatory authorities for its operation as a reseller of services to
its customers. If Qwest does not, ORIX may terminate this Agreement.
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E. TAX EXEMPTION: Qwest will provide ORIX with a valid tax exemption form
to exempt Qwest, under applicable law, from taxes that would otherwise
be paid by Qwest. ORIX will invoice Qwest for taxes that are not
covered by tax exemption certificate properly filed with ORIX.
F. BILLING: Qwest will cooperate in ORIX's billing practices in that Qwest
will avoid, in all cases, practices that may circumvent ORIX's ability
to charge for ORIX Service. Except as otherwise agreed in writing
between ORIX and Qwest, Qwest is solely responsible for billing and
collection and all customer service for those to whom Customer provides
services.
5. CHARGES AND PAYMENT TERMS
A. TAXES: Qwest acknowledges and understands that all charges stated in
Service Schedules are computed by ORIX exclusive of any applicable use,
excise, gross receipts, sales and privilege taxes, duties, fees, or
other taxes or similar liabilities (other than general income or
property taxes), whether charged to or against ORIX or Qwest because of
the Service furnished to Qwest ("Additional Charges"). Such Additional
Charges shall be paid by Qwest in addition to all other charges
provided for herein.
B. BILLING DISPUTES: Any billing discrepancies shall be presented to ORIX
in reasonable detail, in writing, within thirty (30) days of the date
of the invoice in question. ORIX shall not be obligated to consider any
Customer notice of billing discrepancies which are received by ORIX
more than thirty (30) days following the date of the invoice in
question.
C. CHARGES AND PAYMENT TERMS: ORIX xxxxxxxx for Service are made in
accordance with the lockbox agreement (or such other basis as may be
mutually agreed to by the parties). Following Start of Service, service
shall be billed at the rates set forth on the Service Schedule. Qwest
will pay undisputed ORIX invoices for service, in full, on each ORIX
invoice to Qwest within 30 days. All undisputed payments due hereunder
shall be made in U.S. dollars and made by such other method(s) as may
be specified by ORIX from time to time. If undisputed payment is not
received by ORIX on or before the Due Date, Qwest 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 law. These terms are subject to credit
approval.
D. SUSPENSION OF SERVICES: In the event payment in full is not received
from Qwest by Due Date, ORIX shall also have the right, after giving
Qwest three (3) days prior notice, to suspend all or any portion of the
Service to Qwest until such time as Qwest has paid in full all charges
then due, including any late fees. Following such payment, ORIX shall
be required to reinstate Service to Qwest only upon the provision by
ORIX of satisfactory assurance (such as a deposit) of Qwest's ability
to pay for Service and Qwest's advance payment of the cost of
reinstating Service. If Qwest fails to make such payment by a date
determined by and acceptable to ORIX, Qwest will be deemed to have
canceled Service suspended effective the date of such suspension. Such
cancellation shall not relieve Qwest of payment liability for the
unexpired portion of the Minimum Service Term, relevant to the canceled
Service in question.
E. CREDIT: Qwest's execution of this Agreement signifies Qwest's
acceptance of ORIX's initial and continuing credit approval procedures
and policies. ORIX reserves the right to withhold initiation or full
implementation of Service under this Agreement pending initial
satisfactory credit review and approval thereof which may be
conditioned upon terms specified by ORIX
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including, but not limited to, security for payments due hereunder in
the form of a cash deposit, guarantee, irrevocable letter of credit, or
other means. Upon request by ORIX at any time, Qwest agrees to provide
financial statements or other indications of financial circumstances.
As may be determined by ORIX, in its sole discretion at any time, if
the financial circumstances or payment history of Qwest is, or becomes
unacceptable, ORIX may require a new or increased deposit, guarantee or
irrevocable letter of credit at ORIX's discretion, to secure Qwest
payments for the term of the Agreement. Failure of Qwest to provide the
requested security shall constitute a material breach of this
Agreement.
6. WARRANTY
ORIX will use reasonable efforts under the circumstances to maintain its overall
network quality. The quality of Service provided hereunder shall be consistent
with other common carrier industry standards, government regulations and sound
business practices. ORIX MAKES NO OTHER WARRANTIES ABOUT THE SERVICE PROVIDED
HEREUNDER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
7. CONTINUING RELATIONSHIP AND TERMINATION
This Agreement and the relationship of the parties may be terminated by the
non-defaulting party in accordance with applicable provisions hereof and/or the
occurrence of any of the following events which shall constitute a default:
A. ORIX may terminate this Agreement in the event Qwest fails to make any
payment when due or fails to furnish security as may be required
pursuant to Paragraph 5(E) hereof, and fails to cure such default
within thirty (30) days after receipt of notice of such default.
B. The non-defaulting party may terminate this Agreement in the event of:
1) Material breach of this Agreement (other than as specified in
Paragraph 7A(above) after notice thereof and failure of the
breaching party to cure such breach within thirty (30) days of
receipt of such notice.
2) The adjudication of bankruptcy of either party under any Federal,
State or municipal bankruptcy or insolvency act, or the
appointment of a receiver or any act or action constituting a
general assignment by a party of its Proprieties and interest for
the benefit of its creditors.
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8. LIABILITY: GENERAL INDEMNITY
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.
THE LIABILITY OF ORIX WITH RESPECT TO THE INSTALLATION (INCLUDING
DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE, REPAIR,
INTERRUPTION OR RESTORATION OF ANY SERVICE OR FACILITIES OFFERED UNDER
THIS AGREEMENT SHALL NOT EXCEED AN EQUAL AMOUNT TO THE CHARGE
APPLICABLE UNDER THIS AGREEMENT TO THE PERIOD DURING WHICH SERVICES
WERE AFFECTED. FOR THOSE SERVICES WITH MONTHLY RECURRING CHARGES, THE
LIABILITY OF ORIX IS LIMITED TO AN AMOUNT EQUAL TO THE PROPORTIONATE
MONTHLY RECURRING CHARGES FOR THE PERIOD DURING WHICH SERVICE WAS
AFFECTED.
B. GENERAL INDEMNITY: In the event parties other than Qwest (e.g.,
Customer's switched service customers) shall have use of the Service
through Qwest, then Qwest agrees to indemnify and hold ORIX, 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 payment which may be asserted by said parties arisen
out of or relating to any defect in the Service for the term of this
agreement.
9. INTERSTATE SERVICE
Except with respect to Switched Service specifically designated as intrastate
Service or international Service, the rates provided to Qwest in a Service
Schedule are applicable only to Switched Service if such Service is used for
carrying interstate telecommunications (i.e., Service subject to the
jurisdiction of the Federal Communications Commission), ORIX 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 ORIX is authorized to
provide intrastate service (i.e., telecommunications transmission services
subject to the jurisdiction of the state regulatory authority), ORIX will, at
its option, provide intrastate Service pursuant to applicable state laws,
regulations and applicable tariff, if any, filed by ORIX with state regulatory
authorities as required by applicable law.
10. NOTICES
Any notice or other communication required or permitted to be given hereunder
shall be in writing and shall be given by prepaid first class mail, by
facsimiles or other means of electronic communication, or by delivery as
hereafter provided. Any such notice or other communication, if mailed by prepaid
first class mail at any time otherwise, shall be deemed to have been received on
the fourth business day after the postmarked date thereof; or, if sent by
facsimile or other means of electronic communication, shall be deemed to have
been received on the business day following the
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sending, provided that a hard copy is immediately sent by prepaid first class
mail as aforesaid; or if delivered by hand, shall be deemed to have been
received at the time it is delivered to the applicable address noted below,
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice of change of address shall also be governed by this section. In the event
of a general discontinuance of postal service due to strike, lockout, or
otherwise, notices or other communications shall be delivered by hand or sent by
facsimile or other means of electronic communication shall be addressed as
follows:
A. In the case of ORIX:
ORIX GLOBAL COMMUNICATIONS INC.
0000 X. XXXXXXXX XXXX, XXXXX #X-000
XXX XXXXX, XX 00000
PHONE: 0-000-000-0000
FAX: 0-000-000-0000
B. In the case of Qwest:
QWEST COMMUNICATIONS CORPORATION
000 X. 00XX XXXXXX
XXXXXX, XX 00000
PHONE: 0-000-000-0000
FAX: 0-000-000-0000
Billing address of Qwest (if different):
ORIX SWITCHED SERVICES AGREEMENT ORIX QWEST
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11. 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. No consent
by any party to or waiver of, a breach or default by the other, whether express
or implied, shall constitute a consent to, waiver of, or excuse for any
different or subsequent breach or default.
12. PARTIAL INVALIDITY: GOVERNMENT ACTION
A. PARTIAL INVALIDITY: If any term or provision of this Agreement shall be
found to be illegal or unenforceable, then, notwithstanding such
illegality or unenforceability, this Agreement shall remain or
provision shall be deemed to be deleted.
B. GOVERNMENT ACTION: Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an
affected Service, if substantially changed 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 Federal Communications Commission, or other
local, state or federal government authority of competent jurisdiction.
13. 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.
14. USE OF SERVICE
Upon ORIX's acceptance of a Service Schedule hereunder, ORIX will provide the
Service specified therein to Qwest 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
communication service offering to the their parties, ORIX and Qwest agree that
this Agreement, to the extent it is subject to regulation by the Federal
Communication Commission, is an intercarrier agreement which is not subject to
the filing requirements of Section 211(a) of the Communications Act of 1934
(47 U.S.C.B211(a) as implemented in 47 C.F.R B43.51.
15. CHOICE OF LAW: FORUM
A. LAW: This Agreement shall be construed under the laws of the State of
Nevada without regard to choice or law principles.
B. FORUM: Any civil action or other legal proceeding arising out of or
relating to this Agreement or any dealings between Qwest, on the one
hand, ORIX and/or its officers, directors, employees, or agents on the
other hand, whether brought before or after any termination of this
Agreement, shall be brought and heard only in a state or federal court
located in Xxxxx County, Nevada, and the parties hereto expressly waive
any rights under any law or rule to cause any such proceeding to be
brought or heard in any other location. Qwest consents to jurisdiction
in any state or federal court located in Xxxxx County, Nevada, any
civil action or other legal proceeding arising out of or relating to
this Agreement.
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16. PROPRIETARY INFORMATION
The parties understand and agree that the terms and conditions of this
Agreement, all documents referenced (including invoices to Qwest for Service
provided hereunder) herein, communications between the parties regarding this
Agreement or the service to be provided or actually provided hereunder) and all
information regarding the customers of Qwest, as well as such information
relevant to any other agreement between the parties (collectively, "Confidential
Information") are confidential as between Qwest and ORIX.
1. CONFIDENTIAL INFORMATION
a) Parties agree that all information communicated to it with respect
to the proposed products, including any confidential information
relating to the proposed products gained by either party or its
personnel, whether or not that information was directly or
intentionally communicated is confidential. Parties agree that all
data, information, specifications, programs, source code, object
code, documentation, diagrams, flow charts, and other materials of
any type whatsoever (tangible or intangible and machine readable
or human readable) contained or revealed in any of the foregoing,
as well as the techniques, know-how, and procedures (and all
tangible or intangible materials or any type whatsoever
incorporating or reflecting such techniques, know-how and
procedures) utilized in connection with performance of the
Agreement are confidential. Parties further agree that all
information, conclusions, recommendations, reports, advice, or
other documents generated by either party is pursuant to this
Agreement as confidential.
b) Parties promise and agree that they shall not disclose any
confidential information to any other person unless specifically
authorized in writing by the other party to do so. If either
party gives written authorization to make any disclosures, either
party shall do so only within the limits and to the extent of that
authorization.
c) Parties shall use their best efforts to prevent inadvertent
disclosure of any confidential information to any third party.
Both parties shall instruct its personnel to keep that information
confidential by using the same care and discretion that they use
with similar data normally designated by each party as
confidential.
d) Parties acknowledge and agree that all information concerning the
service and any future and proposed services of parties or any of
its associates constitutes an exceptionally valuable trade secret
of each party. That information includes, among other matters, the
facts that the service is planned, under consideration, or in
production, as well as any descriptions of the features of the
Software.
e) The obligations pursuant to this Agreement, without limitation,
shall survive any expiration or termination of this Agreement.
2. USE AND DISCLOSURE OF CONFIDENTIAL DATA. Parties shall not use any
confidential information or circulate it to any other person or
persons, except when specifically authorized in advance by other party
and then only to the extent necessary for any of the following:
a) Conducting negotiations, discussions, and/or consultations with
designated Company representatives;
b) Supplying Company with goods or services at its order;
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c) Preparing confidential estimates, bids or proposals, and
invitations for bids or requests for proposals for submission to
Company; or
d) Accomplishing any purpose Company may later specify in writing.
3. COPIES OF CONFIDENTIAL DATA. Qwest agrees that copies of confidential
information shall not be made without the express written permission of
ORIX and that all such copies shall be returned to company along with
the originals.
4. RETURN OF MATERIALS. Qwest shall return to ORIX, promptly at ORIX's
request, all confidential materials. Any materials which ORIX
specifically requests to be returned shall be returned promptly at the
conclusion of the work on the project to which the materials relate,
or, if no work is performed, at the time Qwest ceases to be involved
with that project.
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 agents of a party including their respective brokers,
lenders, insurance carriers, or 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 nondisclosing party with notice
thereof in order to permit the nondisclosing party to seek an
appropriate protective order of exemption. Violation by a party or its
agents of the foregoing provisions shall entitle the nondisclosing
party, at its option, to obtain injunctive relief without a showing of
irreparable harm or injury and without bond.
C. PRESS RELEASE: The parties further agree that any press release,
advertisement or publication generated by a part 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 companies, will be submitted to the nonpublishing party for
the written approval prior to publication.
D. SURVIVOR AND CONFIDENTIALITY: The provisions of this Section 17 will be
effective as of the date of this Agreement and remain in full force and
effect for a period equal to the longer of: 1) five [5] years following
the effective date of this Agreement; or 2) five [5] years following
the termination of all Service hereunder.
17. 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
either party shall not assign or transfer its rights or obligations under this
Agreement without the prior written consent of the other party.
18. 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 completion of
performance and termination of this Agreement, including, without
limitation, provisions for indemnification and the making of any and
all payments due hereunder.
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B. HEADINGS: Descriptive headings 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 terms 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 draftsman hereof shall apply in the interpretation of this
Agreement.
19. ATTORNEY'S FEES
Should any litigation, arbitration, action, or suit or other proceeding be
commenced between the parties hereto and their representatives or should any
party institute any proceeding in a bankruptcy or similar court which has
jurisdiction over any other party hereto or any or all of his or its property or
assets concerning any provisions of this Agreement or the rights and duties of
any person or entity in relation thereto, the party or parties prevailing in
such litigation shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum as and any appeal or enforcement of any judgment
which shall be determined by the court in such litigation or in a separate
action brought for that purpose.
20. CONSTRUCTION
This Agreement has been drafted by all parties and their attorneys, each having
an opportunity to negotiate and draft this Agreement. As such, this Agreement is
not to be construed either for or against either party, rather this Agreement
shall be construed liberally to effectuate the intent and spirit of the parties.
21. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, and all of which shall constitute one and the same
instrument.
22. MISSING EXHIBITS
Any instrument or document identified in this Agreement as an attachment hereto,
that is not physically attached hereto, shall nonetheless be incorporated by
reference.
23. NON-CIRCUMVENTION
The parties agree not to circumvent or attempt to circumvent this Agreement or
make an effort to deprive the other party or parties of any fees, commissions or
other remunerations of any kind, including, but not limited to, those in or
relating to this transaction or any proprietary information. Each party shall
indemnify, defend and hold harmless the other against any circumvention or
attempt to circumvent divisions, subsidiaries, employees, consultants,
principals, agents, officers, directors, family members, assignees or other
associated persons, affiliated with the parties.
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24. NOT PUBLISHED INFORMATION/DOCUMENT PRESS RELEASE
No press release or other public disclosure of any information regarding this
Agreement shall be made by either party without the prior written approval of
the other except to the extent as may be required by law or regulation of
governmental authority.
25. NO THIRD PARTY BENEFICIARY
It is not the intention of this Agreement or of the parties hereto to confer a
third party beneficiary right of action upon any person or entity whatsoever,
and nothing herein before or hereinafter set forth shall be construed so as to
confer upon any person or entity other than the parties hereto a right of action
either under this Agreement or in any manner whatsoever.
26. TIME
Time is of the essence with respect to the performance of each of the covenants
and agreements contained in this Agreement.
27. VOLUNTARY EXECUTION
This Agreement is freely and voluntarily executed by both parties after having
been apprised of all relevant information and data furnished by its or his
agents and representatives and all other information relevant to this Agreement.
Neither party in executing this Agreement is relying upon any inducements,
promises, or representations made by the other party or by his agents or
representatives.
28. WARRANTY OF AUTHORITY
Each party which has represented itself as a corporation, expressly warrants
that it is validly incorporated in the state of its incorporation and is in good
standing as a de jure corporation. Each such party further warrants that the
signature below is made with full authorization of the directors of said
corporation which has given its informed consent to all terms hereof.
29. ENTIRE AGREEMENT
This Agreement consists of all the terms and conditions contained herein; in
executed Service Schedules that are identified herewith; and in documents
incorporated herein specifically by reference. This Agreement constitutes the
complete and exclusive statement or 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 authorized representatives of Qwest and
ORIX.
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IN WITNESS WHEREOF, the parties have executed this Switched Service Agreement
on the date first written above.
ORIX GLOBAL COMMUNICATIONS, INC. QWEST COMMUNICATIONS CORPORATION
BY: /s/ XXXXX XXXXXX BY: /s/ XXXXXXX X. XXXXXX
--------------------------- ---------------------------
(Signature) (Signature)
XXXXX XXXXXX XXXXXXX X. XXXXXX
--------------------------- ---------------------------
(Print Name) (Print Name)
PRESIDENT VICE PRESIDENT
--------------------------- ---------------------------
(Title) (Title)
ORIX SWITCHED SERVICES AGREEMENT ORIX QWEST
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SERVICE SCHEDULE NO. QWEST COMMUNICATIONS CORPORATION-03
SERVICE SCHEDULE
(ORIX Switched Services)
ORIX Global Communications, Inc. ("ORIX") agrees to provide, and QWEST
COMMUNICATIONS CORPORATION ("QWEST" or "Customer") agrees to accept, ORIX
Termination Service ("ORIX Service") as described below subject to the terms and
conditions set forth herein and contained in that certain Switched Services
Agreement ("Agreement") between QWEST COMMUNICATIONS CORPORATION and ORIX, dated
April __, 1998. Neither QWEST COMMUNICATIONS CORPORATION nor ORIX shall be
obligated with respect to any Service terms or conditions described herein that
do not conform with the terms of said Agreement, until this Service Schedule is
subscribed to by an authorized representative of QWEST COMMUNICATIONS
CORPORATION and by an authorized representative of ORIX.
EFFECTIVE DATE - MINIMUM SERVICE TERM
START OF SERVICE
QWEST will be notified in writing (E-mail or FAX) when the circuit is
available to move traffic. The QWEST will have a maximum of seven (7) days
to perform testing and accept the quality of the circuit (Test Period). The
Start of Service Date will be no more that one (1) week after QWEST
notification that the test circuit(s) have been made available.
REQUESTED SERVICE DATE
Immediately after the Test Period and acceptance of service.
MINIMUM SERVICE TERM
The parties shall renegotiate rates on an annual basis. If the parties
cannot agree on annual rate changes, then either party shall have the right
to terminate the agreement with sixty (60) days notice.
SERVICE INTERCONNECTIONS
TECHNICAL REQUIREMENTS
The initial portion of a minimum commitment shall be delivered to 0000 X.
Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000. Thereafter, the remaining portion of a
commitment shall be delivered to other locations within the USA designated
as ORIX aggregation points. The interconnection shall be made using DS-1 or
DS-3 facilities provided by the QWEST. If ORIX is to provide any additional
circuits necessary to interconnect QWEST, then QWEST shall bear any
expenses.
QWEST RESPONSIBILITIES
QWEST FACILITIES
QWEST will provide access to QWEST facilities as required by ORIX
personnel, contract employees, vendors, agents, or other personnel if
requested by ORIX, for any purpose related
SERVICE SCHEDULE/EXHIBIT A Page 1 of 3 ORIX KR QWEST
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SERVICE SCHEDULE NO. QWEST COMMUNICATIONS CORPORATION-03
to the installation, configuration, testing, or repair of, ORIX equipment
installed for the purpose of interconnecting QWEST and ORIX facilities.
CHARGES AND PAYMENT TERMS
BILLING RATES
See Exhibit A
BILLING TERMS
1) Billing will occur on a once-a-week basis. A billing cycle will
include all Traffic routed for termination from Saturday through
Friday. Invoices will be sent via FAX to QWEST place of business by
the following Monday morning. Call detail will also be made available
in the form of a text file (format to be determined) by the following
Monday morning using electronic media such as the Internet or a
Bulletin Board Service (BBS), provided that QWEST passes the necessary
data to ORIX switches.
2) All payments from QWEST shall be made via wire transfer.
CREDIT TERMS
Future credit terms to be defined by traffic patterns.
OTHER SPECIFIC TERMS
ORIX reserves the right to adjust percentages of traffic, as determined by ORIX,
at ORIX's discretion, between the two interconnection points specified above.
ORIX will provide reasonable notice, in writing, of any adjustments thirty (30)
days prior to effective date. Such adjustments will be based upon traffic
patterns, location of termination, changes in tariffs, regulatory adjustments
and peak and off-peak usage of network. ORIX reserves the right to specify
interconnection locations using criteria as determined by ORIX and provided to
QWEST in writing.
SERVICE SCHEDULE/EXHIBIT A Page 2 of 3 ORIX QWEST
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SERVICE SCHEDULE NO. QWEST COMMUNICATIONS CORPORATION-03
EXHIBIT A - RATE SCHEDULE
QWEST
COUNTRY COST
All of Mexico, as available US$ 0.19
By signing below, I agree to the terms and conditions of this Service Schedule
and the billing rates identified in this Exhibit A:
Subscribed to this day, 29th of April, 1998.
ORIX GLOBAL QWEST COMMUNICATIONS
COMMUNICATIONS, INC. CORPORATION
By: /s/ XXXXX XXXXXX By: /s/ XXXXXXX X. XXXXXX
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SERVICE SCHEDULE/EXHIBIT A Page 3 of 3 ORIX QWEST
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