Exhibit 10.8
[LOGO]
AGCN(TM)
MEMBER
AGREEMENT
Spot Market - Minutes
1. Introduction.
The AGCN is a clearinghouse for the sale and purchase of telecommunication
services by and between telecommunication carriers, internet
telephony service providers, prepaid card service providers, and
others. The AGCN is operated by Arbinet Communications, Inc.
(Arbinet(TM)) It is understood and agreed by entities who use the
AGCN to obtain telecommunications service that Arbinet's operation
of the AGCN does not constitute the provision by Arbinet of
telecommunications of common carrier services. Compliance with all
applicable legal and regulatory requirements governing the provision
of telecommunication services bought or sold through the AGCN is the
responsibility of those telecommunication carriers whose services
are made available through the AGCN.
This Agreement contains important information regarding the terms and
conditions which apply to your membership with the Arbinet Global
Clearing Network(TM) (AGCN(TM)). PLEASE READ THIS AGREEMENT
CAREFULLY and retain it for future reference. Please note that the
information contained herein is subject to change without notice.
In consideration for Arbinet approving your Membership Application and
allowing you access to the AGCN, you agree to the terms and
conditions contained in this Agreement, as amended from time to
time.
Arbinet may amend this Agreement at any time by posting the amended terms
at ▇▇▇.▇▇▇▇.▇▇▇. The amended terms shall automatically be effective
____ days after they are initially posted on our site. This
Agreement may not be otherwise amended except in a writing signed by
both parties. Member agrees that notification of changes to these
Terms and Conditions by virtue of posting on the Arbinet or AGCN
website constitute reasonable notice. This Agreement was last
revised on June 28, 1999.
Members may only begin trading through the AGCN after they have agreed in
writing to accept the terms and conditions of this Agreement. Such
acceptance must be received by a certified representative of Arbinet
prior to the commencement of any authorized AGCN trading activities.
2. Definitions.
The following terms as used in this Agreement have the meanings given to
such terms in this Section 2.
AGCN Node means Any Arbinet owned or operated interconnect facility that
provides a
Member with the ability to route call traffic through or in
conjunction with the AGCN.
Answer Seizure Ratio or ASR means on a route or destination code basis,
and during a specified time interval, the ratio of the number of
seizures that result in an answer signal, to the total number of
seizures. (As defined by the International Telecommunications Union,
ITU-T Terms and Definitions of Traffic Engineering 3/93).
An Associate Member is defined as any person or entity that has been
approved by Arbinet to view-only the Buy and Sell Orders through the
AGCN.
Buying Members means any Member which offers to buy or buys any
telecommunications services through the AGCN.
E1 Facility means European digital signal level; 2.048 Mbits/s.
A Member is defined as any person or entity that has registered to buy
and/or sell telecommunication services through the AGCN and has been
approved by Arbinet as a trader of telecommunication services
through the AGCN, and whose network is capable of routing a call
through or in conjunction with an AGCN Node.
Post Dialing Delay or PDD means time interval between the end of dialing
by the user and the reception by him of the appropriate tone or
recorded announcement, or the abandonment of the call without tone.
(As defined by the International Telecommunications Union, ITU-T
Terms and Definitions of Traffic Engineering 3/93).
Selling Members means any Member which offers for sale or sells any
telecommunications services through the AGCN.
T1 Facility means transmission at DS-1, 1.544 Mbits/s.
Voice Quality of Service or VQOS means Arbinet's three state (A, B, C)
scale of rating the average overall voice quality of a seized call
during a specified time interval.
3. Eligibility for Membership
Our services are available only to entities that can form legally binding
contracts under applicable law. If you do not qualify, please do not
use our services. Arbinet may refuse its services or membership to
the AGCN to anyone at any time, in its sole discretion.
4. Arbinet is Only a Venue.
The AGCN acts as the venue for sellers and for buyers to sell and buy
telecommunication services. We are not involved in the actual
transaction between buyers and sellers. As a result, we have no
control over the quality, safety or legality of the items
advertised, the truth or accuracy of any information provided, the
ability of sellers to sell items or the ability of buyers to buy
items. We cannot and do not control whether or not sellers will
complete the sale of items they offer or buyers will complete the
purchase of items they
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have agreed to purchase. In the event that you have a dispute with
one or more Members, you release Arbinet (and our agents and
employees) from claims, demands and damages (actual and
consequential) of every kind and nature, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of
or in any way connected with any such dispute.
5. No Advice.
Members acknowledge that Arbinet will not provide Members with any legal,
tax or accounting advice or advice regarding the appropriateness,
suitability or profitability of any transaction which Members
undertake on or through the AGCN. Members also acknowledge that
Arbinet's employees are not authorized to give any such advice and
that Members will not solicit or rely upon any such advice from
Arbinet or any of its employees. Arbinet and its officers,
directors, employees, agents and affiliates will have no liability
with respect to any transaction which Members undertake on or
through the AGCN.
Arbinet or its agent(s) will evaluate each membership application and
Agreement individually. Arbinet reserves the right to impose such
financial risk reduction management conditions on Members as
detailed in the AGCN Risk Management Policy (attached hereto as
Addendum "A" and as amended from time to time), including, but not
limited to, requiring security deposits, advance payments and
letters of credit, as Arbinet deems necessary and appropriate.
Arbinet reserves the right to reject any membership application.
The AGCN Risk Management Policy may be posted at website address
▇▇▇.▇▇▇▇.▇▇▇. Changes to such policy will be reflected in the posted
policy seven days before such changes take effect. Purchaser agrees
that notification of Risk Management Policy changes by posting a
revised policy on the AGCN website shall constitute reasonable
notice of such changes and agrees to comply with such policy as
amended from time to time.
6. Member Responsibilities.
A. General
Member shall perform its obligations under this Agreement and use the AGCN
in a manner consistent with applicable law, and shall not use the
AGCN, or permit the AGCN to be used, for any illegal purpose or in
any other unlawful manner. Any Member's transmission of any and all
material (including, but not limited to, copyrighted material or
material protected by trade secrets) in violation of any federal,
state or local law, order or regulation is prohibited.
Member is responsible for provision of, and expenses associated with,
installation of all interconnection facilities and maintenance of
such facilities, and other actions necessary for it to use the AGCN.
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Each Member acknowledges that it is solely responsible for the security
and confidentiality of any information transmitted through the AGCN
and that neither Arbinet nor any other Member will make any effort
to confirm the security or confidentiality of such Member's
information.
Arbinet will not be responsible for any losses or damages resulting from
delay's non-deliveries, misdeliveries, or service interruption.
Any Member offering to buy or sell services through the AGCN website
represents that it possesses all requisite legal and regulatory
authority to buy or sell such services at the rate and route
characteristics specified by it. Offers to sell services by Members
constitute a guarantee that the Member will meet all service
characteristics, including but not limited to, quality
characteristics, posted on the AGCN.
B. Selling Members
A Selling Member shall use its best efforts to verify that all services
provided through the AGCN meet or exceed all AGCN [and self defined
quantitive and qualitative] service standards and route
characteristics posted for and by Selling Members or Arbinet on the
AGCN.
A Selling Member must use its best efforts to quantify maximum available
minute capacity for each route employing an estimated formula of
250,000 minutes per month per T1 Facility and 300,000 minutes per
month per E1 Facility. It is the sole responsibility of the Selling
Member to maintain accurate capacity information on each individual
route offered by such Member through the AGCN.
A Selling Member must use its best efforts to quantify average Post Dial
Delay. The time period over which average PDD shall be calculated
daily using a twenty-four (24) hour period commencing at 12:00 am
(GMT) and concluding at 11:59 pm [(GMT). Further, all Selling
Members must make best effort to quantify average Answer Seizure
Ratio. The time period over which average PDD shall be calculated
daily using a twenty-four (24) hour period commencing at 12:00 am
(GMT) and concluding at 11:59 pm (GMT).
A Selling Member must use its best efforts to qualify average Voice
Quality of Service. The time period over which average PDD shall be
calculated daily using a twenty-four hour period commencing at 12:00
am (GMT) and concluding at 11:59 pm. The system and rating formula
to be employed is as follows:
VQOS Rating Route Characteristics
----------- ---------------------
A Little or no background noise, no echo, no
delay.
B 25% or more of calls contain one of the
following--background noise, echo, delay.
C 50% or more of the calls contain one of the
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following--background noise, echo, delay.
C. Buying Members. [Note to Arbinet: Please advise whether Buying Members
should be required to make any undertakings]
7. Member Acknowledgments
Each Member hereby acknowledges and agrees as follows:
Arbinet assumes no liability for any delays or errors in trade
execution or for misrouting of any telecommunications services
bought or sold by any Member through the AGCN, irrespective of
cause. Members agree to hold Arbinet harmless from liability
for any errors or delays in trade execution, including errors
as to prices quoted by other Members.
Sell prices posted on the AGCN represent the rates for Member calls
transiting through AGCN Nodes and are based on Member orders.
Members understand that other Members may make available
limited capacity at specified prices, and that a price
displayed on the AGCN may not be available for all calls of
similar characteristics at all times.
[Arbinet may test route characteristics both routinely and as a
result of Member complaints. Where incongruities are
identified between posted route characteristics and the
Member's provided route, Arbinet will perform appropriate
tests and render a final decision on what mitigation, if any,
is required. Any fees associated with such testing will be
levied against applicable Members in accordance with AGCN Fee
Schedule (set forth in Appendix One attached hereto).]1/
Arbinet may, in its sole discretion, modify the stated quality
characteristics of any AGCN sell order posted by any Member on
the AGCN. Arbinet also may, in its sole discretion, modify any
AGCN nodal routing plans so as to ensure that the routing
following the quality specified in Member buy orders as
modified by Arbinet.
Arbinet may, in its sole discretion, suspend or terminate any
Member's right to buy or sell services through the AGCN,
including removal of and declination to list any offer of any
Member to buy or sell services; revoke any Member's
participation in the AGCN at any time; and/or arrange for
disconnection of any Member's facilities interconnected with
any AGCN Node, without prior notice. All expenses incurred by
any Member as a result of such disconnection shall be
responsibility of such Member. Arbinet shall use reasonable
efforts to provide a Member whose facilities are to be
disconnected with advance notice of disconnection.
--------
1/ Please advise whether this is a appropriate.
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Arbinet will undertake reasonable efforts to protect the identity of
Members. Arbinet may, in its discretion, share information with
other entities as necessary in monitoring the conduct of Members
with regard to their participation in the AGCN.
8. Payment/Settlement
Members agree to pay the applicable AGCN fees as specified in the AGCN Fee
Schedule attached hereto as Appendix One as amended from time to
time. All Fees will be deducted from payments distributed by Arbinet
to Selling Members, and added to the invoices presented by Arbinet
to Buying Members. Arbinet reserves the right to modify, impose new,
or remove fees from the AGCN Fee Schedule upon five (5) business
days notice to Members. The AGCN Fee Schedule changes will be posted
at website address ▇▇▇.▇▇▇▇.▇▇▇ five (5) business days prior to
taking effect. Purchaser agrees that notification of fee schedule
changes by posting such notice on the AGCN website shall constitute
reasonable notice.
All traffic purchased or sold through the AGCN will be rated based on call
durations measured by a 30-second minimum period followed by six (6)
second billing increments. In certain circumstances, as posted in
Member buy and sell orders, call durations may be measured by a
one-minute minimum period followed by one-minute increments.
Arbinet, at its discretion, may, from time to time, introduce
additional call duration measurement intervals.
All calculations and ratings of calls will be performed to the one hundred
thousandth (xx.xxxxx) of a cent. Final settlements will be rounded
up to the nearest one hundredth of a cent (xx.xx).
Payment between Arbinet and Members will be settled twice monthly, the
fifteenth and the last day of each month (each a Settlement Date).
Arbinet will present settlement statements to Members within five
(5) business days of the end of each Settlement Date. Payments to
and from Arbinet will be due within five (5) business days of the
applicable settlement statement (each a Payment Date). All amounts
owed to Arbinet by Members that remain unpaid on the applicable
Payment Date will bear interest at a rate equal to 18% per annum or
the highest amount allowable by applicable law. Members disputing
settlement charges must provide Arbinet with notice of the dispute
and accompanying documentation to support each claim within five (5)
business days of the applicable Payment Date. Notification of such
disputes does not relieve Members from their obligation to remit
settlement payments in full as designated by the applicable
Settlement Statement on or prior to the applicable Payment Date.
Arbinet will work with Members in good faith to investigate and
resolve all such settlement disputes for which it receives timely
notification. Set-offs amounts, if any, will be applied to the
Member's succeeding monthly statement. Arbinet reserves the right to
reconcile Settlement Statements at any time for a period of six (6)
months after the original Settlement Statement has been issued.
Settlement Statements will be provided to Members either by next-day mail
and/or, the billing e-mail addresses provided to Arbinet at the time
of registration of such Member.
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Unless otherwise stated, all fees are quoted in U.S. Dollars. Members are
responsible for paying all applicable taxes and for other costs
Members incur to bid, buy, sell or access Arbinet servers or the
AGCN. All settlement payments between Members and Arbinet shall be
made via US Funds in the form of corporate check, wire transfer, or
electronic funds transfer. Members requiring the use of certified
checks shall be charged for the additional expense incurred by
Arbinet in processing such checks.
9. Miscellaneous
Should discrepancies exist as a result of multiple contracts between
Arbinet and Member, the current as defined by the terms herein and
as posted at website address ▇▇▇.▇▇▇▇.▇▇▇ from time to time shall
govern, supercede and be employed as the sole determinant for all
resolution.
Nothing in this Agreement is intended to create any agency, partnership,
or joint venture arrangement between AGCN and any Member, nor are
there to be any third party beneficiaries under this Agreement.
Arbinet makes NO EXPRESS WARRANTIES AND DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY AND OF FITNESS, with regard
to the quality, capacity, availability, reliability, or other
characteristics of any service offered by any Member over the AGCN.
Upon being notified by Members of complaints regarding any service
obtained through the AGCN, Arbinet may investigate and modify
information posted on the AGCN where appropriate.
Members agree to indemnify and hold Arbinet harmless for any and all
errors in information, including pricing information, provided
through the AGCN, including information posted on the AGCN website.
Members further agree to indemnify and hold Arbinet harmless from
and against any and all claims against Arbinet made by any person
arising out of or related to any offer or transaction resulting from
any transaction made by any Member through the AGCN. The scope of
this indemnification shall include, but shall not be limited to,
reasonable attorneys' fees and other costs incurred by Arbinet in
the defense or resolution (including settlement) of any claim.
Arbinet's obligations under this Agreement are subject to, and it shall
not be responsible for, any delays, failure to perform, or operation
of the AGCN where such delays or failure are the result of fire,
flood, water, the elements, labor disputes or shortages, utility
cutailments, power failures, explosions, civil disturbances, war,
acts of God, governmental actions, including changes in regulations,
tariffs, or rates which make it impossible or impractical for
Members to provide the telecommunications services as represented on
the AGCN.
This Agreement is to be enforced under the laws of the State of New York
without regard to conflict of law principles. Members hereby consent
to the exclusive jurisdiction of federal or sate courts located in
the County of New York, with respect to all actions regarding this
Agreement or the AGCN.
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Members shall not transfer or assign this Agreement or their participation
in the AGCN to others except upon the written approval of an
authorized representative of Arbinet. In the event of such an
assignment or transfer, any such assignee shall be subject to and
shall execute this Agreement.
All rights to AGCN intellectual property, including copyrights, patents,
software, trademarks, and service marks, as well as websites, and
communications nodes, shall remain the sole property of Arbinet.
Members understand that certain features demonstrated in the tutorial
segment of the AGCN may not be available during live trading on the
AGCN, and vice versa, and that prices posted in the tutorial segment
are for demonstration purposes only.
This Agreement is made expressly subject to all present and future valid
orders and regulations of any regulatory body having jurisdiction
over the subject matter hereof and to the laws of the United States
of America, any of its states, or any foreign governmental agency
having jurisdiction. In the event this Agreement, or any of its
provisions, shall be found contrary to or in conflict with any such
order, rule, regulation or law, this Agreement shall be deemed
modified to the extent necessary to comply with any such order,
rule, regulation or law and shall be modified in such a way as is
consistent with the form, intent and purpose of this Agreement.
This Agreement, constitute the entire agreement between Arbinet and
Members. Arbinet may modify this agreement at any time upon
reasonable notice to Members. The Applicant agrees that posting of
such modifications on the AGCN website constitutes reasonable
notice. Upon such posting, this Agreement or any of its parts may be
modified immediately. New or modified paragraphs shall apply to any
and all transactions executed through the AGCN after the effect date
of such new or modified terms and conditions.
Member represents and warrants that: (a) the signatory shown below has the
authority to bind the party on whose behalf he/she is signing to the
terms of this Agreement; (ii) the execution and delivery of this
Agreement and the performance of such party's obligations hereunder
have been duly authorized; and (iii) the Agreement is a valid and
legal agreement binding on such parties and enforceable in
accordance with its terms.
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All notices, demands, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to be
delivered when actually received, when sent by certified mail,
return receipt requested, reputable overnight carrier, facsimile, to
the address set forth below:
Acknowledged and agreed to as of this _____ day of ___________________.
Member:
By:_____________________________
Printed Name:___________________
Title:__________________________
Address:
Telephone:
Fax:
APPENDIX ONE
AGCN RISK MANAGEMENT POLICY
The following states Arbinet's Risk Management Policy with respect to AGCN
members. By subscribing as an AGCN Member, you indicate your agreement to the
terms and conditions set forth below.
Candidates for AGCN membership must submit to Arbinet Communications, Inc.
("Company") a completed credit application form, a sales and use tax
exemption certificate, and a copy of FCC 214 license if applicable.
Additionally, the Company's Controller may require a Candidate or a Member
to submit audited financial statements.
The AGCN operates two billing cycles, the first to the fifteenth (15th) of each
month and the sixteenth (16th) to last day of each month.
Security deposits must be in the form of (a) cash (held in a cash deposit
non-interest bearing escrow account), or (b) an irrevocable Letter of
Credit (confirmed and payable in USD at the counter of the Company's bank;
details provided on request). The security deposit must be not less than
200% of the estimated billing-cycle amount. The Company may require the
amount to be adjusted to reflect the actual billed amounts of the Member's
trading and transaction activities. Each Member will be able to buy and
transact up to an amount not exceeding 70% of their security deposit. An
increase to the security deposit will be required whenever the open
account balance reaches a threshold of 70% of the security deposit amount.
The Company must receive, within 24 hours of the time the threshold is
passed (a) a paydown of the balance owed, and/or (b) an appropriate
increase in the amount of the security deposit. If neither is received,
the Company will restrict the Member's buying activities and associated
AGCN node transactions until the security deposit is replenished to 200%
of the then-estimated billing-cycle amount.
The Company will ▇▇▇▇ back to Members for any bank fees charged in the
collection of the receivable or any deductions taken by the Member that
was not approved in writing by the Company.
Collection of Past Due Accounts:
Standard Terms: (a) Net 5 days from invoice date. (b) Interest charges
will begin on the 8th day from invoice date at 18% annually
(1.5%/month).
It is the responsibility of the Member to notify in writing the Company's
collection department the details of any disputed items before the
8th day from the date of invoice so interest is not charged on the
amount in dispute. Disputes should be resolved or paid within 15
days from date of invoice unless special consideration warrants
additional time.
Outstanding balances that are not cleared within 15 days will
automatically be presented to the Member's bank to draw down on the
security deposit, with concomitant effect on the Member's trading
floor buying and nodal transaction activities.
If reasonable collection efforts are unsuccessful in obtaining payments
for past due invoices the account, all of the delinquent Member's
buying activities will be placed on hold, and associated nodal
transactions will be terminated. The Company reserves the right to
refer delinquent accounts to an external collection agency.
APPENDIX ONE
AGCN MEMBER FEE SCHEDULE
The following schedule defines fees assessed to Members of the AGCN upon their
enrollment and participation with the Arbinet Global Clearing Network(TM).
Registration/Interconnection
Registration/Set Up: No charge
T1/E1 Installation: Member responsibility
Monthly Recurring
Port Fee $500 Per T1 or E1
Exchange Fees for Calls Transmitted over a Single AGCN Node
Buyer and Seller each pay 5% of the Seller Offered Rate
Additional Provisioning Services
Trunk Group Change $500 per trunk group change
Testing Charges (based on seller-requested Arbinet VQoS Testing &
Posting)
$250 per batch of 5 individual routes -
Seller
$2,000 per batch of up to 50 individual
routes - Seller
$5,000 per batch of up to 150 individual
routes - Seller
$7,500 per batch of up to 300 individual
routes - Seller
Compliance Checking (based Member-Requested Compliance Checking)
$100 Per Route - Charged to requester if
route meets or exceeds seller's posted QoS
$100 Per Route - Charged to seller if route
fails to meet seller's posted QoS
$100 Per Route - Charged to seller if route
fails to meet Arbinet's earlier QoS
results.
Reporting
Custom Reports Onetime Set Up Fee - Price provided upon
request, based on $150 per programming
hour times the numbers of estimated hours
Call Detail Records $x.xx per record provided on CD-ROM
Late Payment See separate "AGCN Risk-Management Policy"
document, latest version
Risk Management See separate "AGCN Risk-Management Policy"
document, latest version
* Bills & Reports will normally be provided securely on the ▇▇▇.▇▇▇▇.▇▇▇
Website.
