EXHIBIT 10.5
[logo] RSL COM
RSL COM U.S.A. INC.
CARRIER SERVICES AGREEMENT
This Agreement is made this 12th day of August, 1999, by and between
RSL COM U.S.A., Inc. a Delaware corporation, with its principal office at 0000
Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000, ("RSL
COM") and XXXxxxx.xxx, Inc. with its principal office at 0000 Xxxxx Xxxxxxxxxxx
Xxxx, #000, Xxxxxxxxx, Xxxxxxxx, 00000 ("Customer").
WITNESSETH:
Whereas, RSL COM is in the business of providing long distance
telecommunications service: and
Whereas, customer is in the business of purchasing long distance
telecommunications services,
Whereas, RSL COM agrees to provide and Customer agrees to accept the
telecommunications services described in the Service Schedule attached hereto
and in RSL COM's filed tariffs (collectively "Services") subject to the terms
and conditions contained in this Agreement and in conformity with each Service
Request which is accepted hereunder,
1. EFFECTIVE DATE - SERVICE TERM.
A. EFFECTIVE DATE This Agreement shall be effective between the parties
as of the date first written above.
B. START OF SERVICE RSL COM's obligation to provide and Customer's
obligation to accept and pay for Service shall be binding to the
extent provided for in this Agreement upon the execution of a Service
Schedule by both parties. RSL COM will use reasonable efforts to
provide Service within thirty days, following execution of the
applicable Service Schedule, or the requested delivery date, whichever
is later.
C. TERM Except as otherwise provided herein, the parties' obligations
hereunder with respect to Service shall continue from Start of Service
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over the period of time specified in the Service Schedule. Any minimum
commitment term shall be specified in the Service Schedule. Either
party may terminate this Agreement upon thirty (30) day written notice
to the other party.
D. CHARGES RSL COM reserves the right tot modify rates and/or charges for
and/or delete RSL COM Service offerings to specific locations and
modify Service Interconnection charges, if any, upon five (5) days
notice to Customer.
E. MINIMUM COMMITMENT Customers Minimum Usage Commitment ("MUC") shall be
100,000 minutes per month per DS1 or as set forth in the Service
Schedule. In the event Customer fails to maintain its MUC, RSL COM
shall have the right to suspend Service(s) to Customer upon seven (7)
days written notice. Suspension of Service does not relieve Customer
of its obligations to pay the actual usage for such billing cycle up
to and including the date of suspension. (F9 /s/BW 8-17-99)
2. SERVICE SCHEDULES. Service requested by Customer hereunder shall be
requested on RSL COM Service Schedule forms and subscribed to by authorized
representatives of Customer and RSL COM. 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 RSL COM to provide Service to Customer as set forth in
Exhibit A attached.
3. CUSTOMER RESPONSIBILITIES.
A. CUSTOMER FACILITIES Customer has sole responsibility for the
installation, testing, operation of and costs associated with
facilities, services and equipment other than the specifically to be
provided by RSL COM as described in a Service Schedule ("Customer
Facilities"). In no event will the untimely installation or
non-operation of Customer Facilities relieve Customer of its
obligation to pay charges for Service provided by RSL COM. If Customer
is responsible for establishing a Service Interconnection over
facilities other than those controlled by RSL COM, RSL COM 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.
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/s/ FS /s/ BW 8-17-99
B. EXPEDITE CHARGES Should Customer request expeditious Service and/or
changes to orders and RSL agrees to such request, RSL will pass
through the charges assessed by any supplying parties involved at the
same rate to Customer. RSL may further condition its agreement with
such request upon Customer's payment of additional charges to RSL.
C. FRAUDULENT CALLS Customer shall indemnify and hold RSL COM harmless
from all costs, expenses, claims or actions arising from fraudulent
calls of any nature carried by means of the Services. Customer shall
not be excused from paying RSL CM for Services provided to Customer or
any portion thereof on the basis that fraudulent calls comprised a
corresponding portion of the Service. In the event RSL COM discovers
fraudulent calls being made or reasonably believes fraudulent calls
are being made, nothing contained herein shall prohibit RSL COM from
taking immediate action, without notice to Customer, that is
reasonably necessary to prevent such calls from taking place.
D. LICENSES Customer is solely responsible for obtaining all licenses,
approvals, or regulatory authorities for its operation as a reseller
of services to its customers. If Customer is prohibited, on a
temporary or long term basis, from conducting its telecommunications
operations, Customer shall immediately notify RSL COM. In such event,
RSL COM reserves the right to terminate this Agreement.
E. TAX EXEMPTION Customer will provide RSL COM with a valid tax exemption
form to exempt Customer, under applicable law, from taxes that would
otherwise be paid by Customer. RSL COM will invoice Customer for taxes
that are not covered by tax exemption certificate properly filed with
RSL COM.
4. Charges and Payment Terms.
A. TAXES CUSTOMER acknowledges and understands that all charges stated in
Service Schedules are computed by RSL COM 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 RSL COM or Customer
because of the Service furnished to Customer ("Additional Charges").
Such Additional Charges shall be paid by Customer in addition to all
other charges provided for herein.
B. BILLING DISPUTES Any billing discrepancies shall be presented to RSL
COM in reasonable detail, in writing, within thirty (30) days of the
date of the invoice in question. RSL COM shall not be obligated to
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consider any Customer notice of billing discrepancies which are
received by RSL COM more than thirty (30) days following the date of
the invoice in question. Customer shall be obligated to pay all
disputed amounts, which amounts shall thereafter be credited to
Customer's next invoice in the event the parties conclude that the
disputed amount or part thereof is owing Customer. The parties shall
use their best efforts to resolve the disputed xxxx within thirty days
of notice given by Customer. If such resolution is not attained, the
parties' dispute shall be settled by arbitration as set forth in
paragraph 12 herein.
C. CHARGES AND PAYMENT Terms RSL COM xxxxxxxx for Service are made on a
weekly basis following Start of Service. RSL COM reserves the right to
change its billing cycle from time to time, as its sole discretion,
upon reasonable written notice given to Customer. Service shall be
billed at the rates set forth on the Service Requests. Customer will
pay each RSL COM invoice for Service in full, without deduction or
offset of any kind, within seven (7) days of the invoice date set
forth on each RSL COM invoice to Customer ("Due Date"). All payments
due hereunder shall be made in U.S. dollars. If payment is not
received by RSL COM on or before the Due Date, Customer shall also pay
a late fee in the amount of the lesser of one and on-half percent (1
1/2%) of the unpaid balance of the Service Charges per month or the
maximum lawful rate under applicable law.
D. SUSPENSION OF SERVICES With the exception of terms set forth in
paragraph 4(c) above, in the event payment in full is not received
from Customer by Due Date, RSL COM shall also have the right, after
giving Customer three (3) days written prior notice, to suspend all or
any portion of the Service to Customer until such time as Customer has
paid in full all charges then due, including any late fees. Following
such payment, RSL COM shall b required to reinstitute Service to
Customer only upon the provision by Customer to RSL COM, Customer of
satisfactory assurance (such as a deposit) of Customer's ability to
pay for Service and Customer's advance payment of the cost of
reinstituting Service. If Customer fails to make such payment by a
date determined by and acceptable to RSL COM, Customer will be deemed
to have canceled the Service effective as of such date. Such
cancellation shall not relieve Customer of payment liability for the
unexpired portion of the Minimum Service Term relevant to the canceled
Service.
E. CREDIT Customer's execution of this Agreement signifies Customer's
acceptance of RSL COM's initial and continuing credit approval
procedures and policies. RSL COM 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 RSL COM, including, but not
limited to, security for payments due hereunder in the form of cash
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deposit, guarantee, irrevocable letter of credit or other means, which
may be increased upon RSL COM's request at its discretion. As may be
determined by RSL COM in its sole discretion at any time, if the
financial circumstances or payment history is or becomes unacceptable,
or in the event Customer exceeds its credit limit as determined by RSL
COM or indicates difficulties in meeting its payments, RSL COM may
require a new or increased deposit, partial payment, guarantee or
irrevocable letter of credit, at RSL COM's option, to secure
Customer's payments for the term of the Agreement. Failure of Customer
to provide the requested security shall constitute a material breach
of Agreement.
5. WARRANTY. RSL COM 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. RSL COM 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.
6. 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. RSL COM may terminate this Agreement in the event Customer fails to
make any payments when due or fails to furnish security as may be
required pursuant to Paragraph 4(E) hereof, and fails to cure such
default within five (5) days after the receipt of notice of such
default.
B. The non-defaulting party mat terminate this Agreement in the event of:
1. Material Breach of this Agreement (other than as
specified in Paragraph 6(A) above) after the notice thereof and
failure of the breaching Party to cure such breach within twenty
(20) days of receipt of notice of such default.
2. The filing by either party of a voluntary petition in
bankruptcy or insolvency, the ajudication of either party as
bankrupt or insolvent, or the appointment of a receiver or any
act or action constituting a general assignment by either Party
of its proprieties and interest for the benefit of its creditors.
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3. The determination by any governmental entity having
jurisdiction over the Service provided under this Agreement that
the relationship of the Parties and/or Services provided
hereunder are contrary to then existing laws.
7. 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 RSL COM 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 AMOUNT EQUAL 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 RSL COM 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 Customer (e.g.
Customer's switched service customers) shall have use of the Service
through Customer, then Customer agrees to forever indemnify and hold
RSL COM, 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, suits, actions, losses, damages,
assessments or payments which may be asserted by said parties arising
out of relating to any defect in the Service.
8. FORCE MAJEURE. The provisions of Force Majeure apply to this Agreement.
9. NOTICES. Any notice or other communication required or permitted to be
given hereunder shall be in writing addressed to the persons listed below, at
the last known address of the company, and shall be given by prepaid first class
mail, by facsimile or other means of electronic communication or by hand
delivery, and shall be deemed received one day after being sent.
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a) For RSL COM:
Company: RSL COM U.S.A., Inc.
Contact Person: Manager, Contract Administration
Address: 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Phone Number: 000 000-0000
Fax Number: 000 000-0000
b) For Customer:
Company: XXXxxxx.xxx, Inc.
Contact Person: Xxxx Xxxxxxxx
Address: 0000 Xxxxx Xxxxxxxxxxx Xxxx, Xxxxx #000
Xxxxxxxxx, XX 00000
Phone Number: 000 000-0000
Fax Number: 000 000-0000
10. 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 expressed or implied, shall constitute a consent to, waiver of, or
excuse for any different or subsequent breach or default.
11. PARTIAL INVALIDITY; GOVERNMENTAL 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 in full
force and effect and such term or provision shall be deemed to be
deleted.
(B) Governmental 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
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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.
12. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by Arbitration in New York,
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the Arbitrators may be
entered in any Court having jurisdiction thereof.
13. USE OF SERVICE. Upon RSL COM"s acceptance of a Service Schedule hereunder,
RSL COM 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 the third parties, and RSL
COM and Customer agree that this Agreement, to the extent it is subject to
regulation by the Federal Communications Commission, is an intercarrier
agreement which is not subject to the filing requirements of the FCC.
14. CHOICE OF LAW: FORUM.
The construction, interpretation, and performance of this Agreement shall be
governed by the local laws of the State of New York, and exclusive jurisdiction
shall be with the courts of that State.
15. PROPRIETY INFORMATION.
(A) Confidential Information The parties understand and agree that the
terms and conditions of this Agreement, all documents and invoices and
all communications between the parties regarding this Agreement or the
Service to be provided as well as such information relevant to any
other agreement between the parties (collectively "Confidential
Information"), are strictly confidential as between Customer and RSL
COM.
(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 agent's of a party including their respective
brokers, lenders, insurance carries or prospective purchasers who have
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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 to seek an
appropriate protective order or exemption. Violation by a party, as
its option, to obtain injunctive relief without a showing of
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 desire
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 AND CONFIDENTIALITY The provisions of this Section 15 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: one year following the
effective date of this Agreement; or one year following the
termination of all Service hereunder.
16. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and inure
tio 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
RSL COM, and further provided that any assignment or transfer without such
consent shall be void.
17. 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 payments due hereunder.
(B) Heading 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 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.
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18. ENTIRE AGREEMENT. This Agreement, together with any and all executed
Service Schedules, 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.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
first written above.
RSL COM U.S.A., Inc. XXXxxxx.xxx, Inc.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Will
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(signature) (signature)
Xxxxx Xxxxxxx Xxxxxxx X. Will
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(print name) (print name)
President, Wholesale Carrier Services CEO & President
------------------------------------ ----------------
(title) (title)
Customer /s/BW RSL /s/FS
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