PORTIONS OF THIS EXHIBIT HAVE BEEN DELETED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER RULE 406 OF THE SECURITIES ACT OF 1933 AND THE
FREEDOM OF INFORMATION ACT
STARTEC, Inc. CARRIER SERVICES AGREEMENT
THIS AGREEMENT, (the "Agreement") is made this 3rd day of
July, 1996, by and between STARTEC, Inc., a Maryland corporation,
with its principal office at 00000 Xxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000 ("STARTEC") and MFS International, Inc., a
Delaware corporation with its principal office at 0000 Xxxxx
Xxxx., Xxx. 000, Xxxxxx, Xxxxxxxx 00000 ("Customer"). STARTEC
and Customer are "Parties" hereto.
STARTEC agrees to provide switched international
telecommunications services and other associated services
(collectively "Service"), as described herewith, to Customer on
the following terms and conditions, and Customer agrees to accept
Service subject to the specific terms and charges set forth in
the Annexure(s) attached hereto and pursuant to the terms of this
Agreement.
1. CONFIDENTIALITY: During the Term and for three (3) years
thereafter, neither Party shall disclose any terms of this
Agreement, including pricing, or "Confidential Information" of
the other Party. For purposes of this Agreement, "Confidential
Information" shall mean information in written or other tangible
form specifically labeled as such when disclosed by a Party.
Confidential Information orally shall be identified as such at
the time of tis disclosure. Confidential Information shall
remain the property of the disclosing Party. A Party receiving
Confidential Information shall: (i) use or reproduce such
information only when necessary to perform this Agreement; (ii)
provide at least the same care to avoid disclosure or
unauthorized use of such information as it provides to protect
its own Confidential Information; (iii) limit access to such
information to its employees or agents who need such information
to perform this Agreement; and (iv) return or destroy all such
information, including copies, after the need for it has expired,
upon request of the disclosing Party, or upon termination of this
Agreement. Notwithstanding anything to the contrary contained
herein, a Party shall be allowed to disclose Confidential
Information pursuant to judicial or governmental order or if
otherwise required to do so by law.
2. TERM: The term of this Agreement shall be a minimum of one
(1) year from the last date of signature. The Agreement shall
112
continue thereafter, in full force and effect, until canceled by
either party giving 60 days written notice to the other Party.
Service will be discontinued the first business day of the third
month after such notice of termination.
3. RELATIONSHIP TO PARTIES: Neither this agreement nor the
provision of Service creates a joint venture, partnership or
agency between STARTEC and Customer.
4. USE OF NAME AND MARKS: This Agreement confers no right to use
the name, service marks, trademarks, copyrights, patents of
either Party except as expressly provided herein. Neither Party
shall take any action which would compromise the registered
copyrights or service marks of the other.
5. LEGAL COMPLIANCE: REMEDIES FOR NON-COMPLIANCE: Customer
represents and warrants that it has obtained all licenses,
approvals and/or regulatory authority necessary to operate as
contemplated herein.
6. CUSTOMER RESPONSIBILITIES: Customer shall comply with
STARTEC's network interface procedures when it orders its own
access facilities. STARTEC agrees to promptly provide Customer
with such network interface procedures.
7. SERVICE ACTIVATION: STARTEC will use reasonable efforts to
provide Service within 30 days, following execution of the
applicable Annexure(s), or the requested delivery date, whichever
is later.
8. PRICING: Pricing is pursuant to the applicable Annexures(s).
STARTEC reserves the right to change the pricing, upon ten (10)
days prior written notice. Should any unit price increase more
than [CT REQUESTED] during a calendar year, Customer may
terminate this Agreement with 30 days written notice providing
that all relevant requirements have been met (i.e. paragraph
14.3).
9. PAYMENTS FOR SERVICE:
9.1 Customer shall pay STARTEC for Service pursuant to the
terms of this Agreement.
9.2 STARTEC will invoice Customer monthly for Service provided
hereunder. Invoices shall be due and payable upon receipt.
Undisputed charges for Service that are not paid within 30 days
after Customer's receipt of the invoice shall be past due.
Interest will be charged on past due amounts beginning the 31st
day following Customer's receipt of the invoice at a rate equal
to the lesser of 18% per annum or the maximum rate allowed by
law.
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9.3 Customer will provide STARTEC with a valid tax exemption
form to exempt Customer, under applicable law, from taxes that
would otherwise be paid by Customer. STARTEC will invoice
Customer for taxes (other than income taxes payable by STARTEC)
that are not covered by tax exemption certificate properly filed
with STARTEC.
9.4 If Customer, in good faith, disputes any invoiced amount,
it shall submit to STARTEC within 30 days following receipt of
the invoice, full payment of the undisputed portion of the
invoice and written documentation identifying and substantiating
the disputed amount. If the Parties, in good faith, cannot
resolve the dispute within a reasonable period of time, then the
dispute shall be settled by arbitration pursuant to Paragraph 16.
9.5 The customer shall be solely responsible for billing and
collecting from its customers. Under no circumstances shall
STARTEC be responsible for fraudulent, unbillable calls, credits
given by the Customer and bad debts incurred by the Customer.
10. PAYMENT SECURITY: Provision of Service is contingent on
credit approval by STARTEC. Upon request by STARTEC, Customer
shall provide STARTEC with financial circumstances. If
Customer's financial circumstance or payment history is or
becomes unacceptable to STARTEC, then STARTEC may require a
deposit, irrevocable letter of credit or other form of security
acceptable to STARTEC within 20 days following STARTEC's request.
11. INDEMNIFICATION: Each Party (as "Indemnitor") shall
indemnify, defend and hold harmless the other Party (as
"Indemnitee") from and against any and all liabilities, costs,
damages, fines, assessments, penalties and expenses (including
reasonable attorney's fees) resulting from (a) breach of any
provision in this Agreement by Indemnitor, it employees or
agents, arising out of the Indemnitor's performance hereunder.
Customer shall indemnify, defend and hold STARTEC harmless from
and against any and all liabilities, costs, and damages
(including reasonable attorney's fees) resulting from any claim
arising out of libel, slander, or patent or trademark
infringement arising from the combination or use of Service with
Customer provided service or facilities; or Customer's marketing,
advertising, sales or promotional activities.
12. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION
LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS, CLIENTS OR
GOODWILL ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE
PERFORMANCE OR NON-PERFORMANCE OF BUSINESS HEREUNDER.
THE LIABILITY OF STARTEC WITH RESPECT TO THE INSTALLATION
(INCLUDING DELAYS THEREOF), PROVISION, TERMINATION, MAINTENANCE,
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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 STARTEC IS
LIMITED TO AN AMOUNT EQUAL TO THE PROPORTIONATE MONTHLY
RECURRING CHARGES FOR THE PERIOD DURING WHICH SERVICE WAS
AFFECTED.
13. WARRANTIES: STARTEC 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. STARTEC 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.
14. TERMINATION FOR CAUSE
14.1 A Party may terminate this Agreement upon the other Party's
failure to cure any of the following within 30 days following
written notice thereof: (a) the (i) insolvency, corporate
reorganization, arrangement with creditors, receivership or
dissolution of the other Party; or (ii) institution of bankruptcy
proceedings by or against the other Party; (b) assignment or
attempted assignment of the Agreement or any interest therein,
except as permitted by Paragraph 19 hereof; (c) change in control
of the defaulting Party without the other Party's prior written
consent, which consent shall not be unreasonably withheld; (d) a
final order by a government entity with appropriate jurisdiction
that a Service or the relationship hereunder is contrary to law
or regulation; or (e) breach of any provision herein not
otherwise referred to in this Paragraph 14.
14.2 STARTEC may terminate this Agreement immediately and
without notice if Customer breaches a provision of Paragraph 10
or 11.
14.3 Upon termination of this Agreement immediately and without
notice if Customer breaches a provision of Paragraph 10 or 11.
15. TERMINATION FOR CONVENIENCE: Customer may terminate this
Agreement for convenience with 60 days advance written notice,
provided that all early termination requirements stipulated in
the Annexure(s) are met.
16. ARBITRATION: Any dispute arising out of or relating to the
Agreement will be finally settled by arbitration in accordance
with the rules of the American Arbitration Association. The
arbitration will be governed by the United States Arbitration
Act, 9 U.S.C. Sec. I, et. seq., and judgment upon the award
115
rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The arbitration will be held in the Washington, DC
metropolitan area.
17. FORCE MAJEURE: Neither Party shall be liable for any delay
or failure in performance of any part of this Agreement, other
than for any delay or failure in an obligation to pay money, to
the extent such delay or failure is caused by fire, flood,
explosion, accident, war, strike, embargo, governmental
requirement, civil or military authority, Act of God, inability
to secure materials or labor or any other causes beyond their
reasonable control. Any such delay or failure shall suspend this
Agreement until the Force Majeure ceases and the term shall be
extended by the length of the suspension.
18. NOTICES: Notices, requests or other communications
(excluding invoices) hereunder shall be in writing. If mailed
then shall be sent certified, if by fax then, with
acknowledgement from receiving Party. Fax and Address:
If to STARTEC: If to
Customer:
STARTEC, Inc. MFS International, Inc.
00000 Xxxxx Xxxx Xxxxx, Xxxxx 000 0000 Xxxxx Xxxx., Xxxxx
000
Xxxxxxxx, XX 00000 XXX Xxxxxx, Xxxxxxxx
00000 XXX
Attention: Manager-Carrier Attention: Xxxx Xxxxxxx
Services Tel.: (000) 000-0000
Tel.: (000) 000-0000 Fax: (000)000-0000
Fax: (000) 000-0000
19. ASSIGNMENT: Neither this Agreement nor any right or
obligation hereunder may be assigned or delegated to any other
entity without the prior written consent of the other Party,
which consent shall not be unreasonably withheld.
20. RULES OF CONSTRUCTION: No rule of construction requiring
interpretation against the draftsman shall apply in the
interpretation of this Agreement.
21. ENTIRE AGREEMENT: This Agreement, together with the
attached Annexure(s), represents the entire agreement of the
Parties with respect to the subject matter hereof and supersedes
all other agreements (written or oral) between the Parties
relating to the Service.
22. MODIFICATION OF AGREEMENT: This Agreement, including its
Annexure(s), may be amended, modified, or supplemented only by a
separate written document executed by authorized representatives
of both Parties.
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23. WAIVER OF TERMS: No term or provision herein shall be
waived, and no breach or default excused, unless such waiver or
consent is in writing and signed by the Party to which it is
attributed. No consent by a Party to, or waiver of, a breach or
default by the other, whether express or implied shall constitute
a consent to, or waiver of, any subsequent breach or default.
24. PARTIAL INVALIDITY: If any provision of this Agreement
shall be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate or render the Agreement
unenforceable, but rather the Agreement shall be construed as if
not containing the invalid or unenforceable provision. However,
if such provision is an essential element of this Agreement, the
Parties shall promptly attempt to negotiate a substitute
therefor.
25. CUMULATIVE REMEDIES: Except as otherwise provide herein,
the remedies provided for in this Agreement are in addition to
any other remedies available at law or in equity.
26. GOVERNING LAW: This Agreement shall be governed and
construed in accordance with the laws of the State of Maryland,
and the Parties irrevocably agree to the exclusive jurisdiction
of the courts of the State of Maryland.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year last written below.
Customer MFS International, Inc. STARTEC, Inc.
/s/ /s/
Name: Xxxx Xxx Xxxxx Name: Xxxxxx Xxxxx
Title: Vice President, International Title: Manager, Carrier
Carrier Relations Services
Date: July 3, 1996 Date: 19 July 1996
AMENDMENT
to STARTEC Carrier Services Agreement
This Amendment to STARTEC Carrier Services Agreement is made and
entered into this 7th day of April, 1997, by and between STARTEC,
Inc., ("STARTEC") a corporation duly incorporated in the state of
Maryland and having its principal office at 00000 Xxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 and Worldcom, Inc. successor
in interest to MFS International, Inc. ("Customer") a corporation
duly incorporated in the state of Georgia and having its
principal office at 000 Xxxx Xxxxx Xx., Xxxxxxx, XX 00000-0000.
STARTEC and Customer are "Parties" hereto.
Whereas, STARTEC and Customer have signed a STARTEC Carrier
117
Services Agreement ("Agreement") dated 3rd July, 1996 and,
Whereas, STARTEC and Customer desire to amend the Agreement in
accordance with Section 22 (Modification of Agreement) thereof,
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, STARTEC and Customer hereby agree
as follows:
I. Pursuant to Section 19-ASSIGNMENT, STARTEC agrees to assign
the STARTEC Carrier Services Agreement to Worldcom, Inc.
II. Section 14.3 is amended to read as follows: Upon Termination
of this Agreement a Party may recover from the other all
sums it is owed at the time of termination.
III. Section 8-PRICING is amended to read as follows: Pricing is
pursuant to the applicable Annexure(s). STARTEC reserves
the right to change the pricing, upon fifteen (15) days
prior written notice. Should any unit price increase more
than [CT REQUESTED] during a calendar year, Customer may
terminate the Agreement relevant to the unit price increase
with [CT REQUESTED] written notice providing that all
relevant requirements have been met (i.e. paragraph 14.3).
It is agreed, however, that Customer may terminate the
Agreement according to the terms of this section even if
sums are owed, if said sums are validly in dispute.
IV. Section 22-MODIFICATION OF AGREEMENT is amended to read as
follows: This Agreement, including its Annexure(s) may be
amended, modified, or supplemented only by a separate
written document executed by authorized representatives of
both Parties. Rates (prices) issued within the parameters
of section eight (8)-Pricing and section eighteen
(18)-Notices require only the signature of an authorized
representative of STARTEC and do not require counter-
signature from customer.
Except as expressly amended herein, the terms and conditions of
the Service Agreement shall remain in full force and effect
without waiver or modification of the rights of any party hereto.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Amendment to be executed on its behalf by an officer thereunto
duly authorized as of the date first above written.
ACCEPTED BY:
STARTEC, Inc. Customer:
Worldcom, Inc.
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/s/: ________________(signature) /s/:
_____________________
Xxxxxx X. Xxxxx(print name) _____________________
Director-Carrier Services(title) _____________________
_____________________ (date) _____________________
Price Schedule
Effective Date: June 6, 1996
Minimum Term: [CT REQUESTED]
Termination Liability: [CT REQUESTED]
Minimum Usage Commitment (Per Month): N/A
[CT REQUESTED]
Per Call Billing Increments: [CT REQUESTED]
MFSI Is My International Carrier of Choice To: [CT REQUESTED]
All Amounts Due are in U.S. Dollars.
Unit Prices: See Attachment A. All prices are exclusive of any
taxes or surcharges that may be applicable.
Port Charge: [CT REQUESTED]
Volume Discounts To Be Applied on Top of the Unit Prices
Contained in Attachment A: [CT REQUESTED]
Range Discount Range Discount
_______ ________ ________ _________
_______ ________ ________ _________
_______ ________ ________ _________
_______ ________ ________ _________
Acknowledged and Agreed.
Customer: STARTEC, Inc. MSF International, Inc.
/s/ Dhruva Diego Kumar /s/ Xxxx Xxx Xxxxx
Name: Dhruva Diego Kumar Name: Xxxx Xxx Xxxxx
Title: Manager-Carrier Services Title: VP, International
Carrier Relations
Date: 6 June, 1996 Date: 6/26/96
119
ANNEXURE to STARTEC Carrier Services Agreement
This Annexure is made and entered into this 2nd day of May,
1997, by and between STARTEC, Inc., ("STARTEC") a
corporation duly incorporated in the state of Maryland and
having its principal office at 00000 Xxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxxxx, XX 00000 and WORLDCOM, Inc. successor in
interest to MFS International, Inc. "Customer") a
corporation duly incorporated in the state of Georgia and
having its principal office at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, 00000-0000.
Whereas, the Parties have signed a master Agreement dated
3rd July,1996.
Now this Annexure witnesseth as follows:
1a. Service: Dedicated Access-Switched Services.
1b. Special Rates: Effective: March 1, 1997
Special rate supersede base rates.
Code Country Rate/min.
[CT REQUESTED]
2. Billing Method: unless otherwise agreed to in any
annexure(s) attached hereto, Billing will be in the
following format: 1. International Termination: Billing
will be in [CT REQUESTED] increments with a minimum of [CT
REQUESTED] 2. Mexico Termination will be billed in
increments of [CT REQUESTED] with a [CT REQUESTED] minimum.
3. Domestic U.S. Termination will be billed in increments
of [CT REQUESTED] with a minimum of [CT REQUESTED] 4. 800
U.S. Origination traffic will be billed in increments of [CT
REQUESTED] with a minimum of [CT REQUESTED]
3. Rate Modification: [CT REQUESTED]
4. Cust. Account [CT REQUESTED] (STARTEC Use only)
5. Please note customer signature not required, rates will
become effective on the stated effective date.
AUTHORIZED BY: STARTEC, Inc. /s/ Xxxxxx X. Xxxxx
Date: 2 May, 1997 Manager-Carrier Services
ANNEXURE A-1.0
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This Annexure A-1.0 is made and entered into this 19th day
of July, 1996, by and between STARTEC, Inc., ("STARTEC") a
corporation duly incorporated in the state of Maryland and having
its principal office at 00000 Xxxxx Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, XX 00000 and MFS International, Inc. ("Customer") a
corporation duly incorporated in the state of Delaware and having
its principal office at 0000 Xxxxx Xxxx., Xxx. 000 Xxxxxx,
Xxxxxxxx 00000.
WHEREAS, the Parties have signed a Carrier Services
Agreement dated 3rd July, 1996.
Now this Annexure witnesseth as follows:
1a. Service: Dedicated Access-Switched Services.
1b. Rates: [CT REQUESTED]
Effective: August 1, 1996.
1c. Special Rates: Special Rates for Customer per ANNEXURE A-2.
2. Interconnection-STARTEC POP:
The nearest STARTEC POP to Customer is located at: [CT
REQUESTED]
3a. Port Charge: [CT REQUESTED]
3b. Minimum Term: [CT REQUESTED]
3c. Termination Liability: [CT REQUESTED]
3d. Ramp-up Period: [CT REQUESTED]
3e. Minimum Usage Commitment (Per Month):
[CT REQUESTED]
4a. Billing Method: unless otherwise agreed to in any
annexure(s) attached hereto, Billing will be in the following
format: 1. International Termination: Billing will be in [CT
REQUESTED] increments with a minimum of [CT REQUESTED]. 2.
Mexico Termination will be billed in increments of [CT REQUESTED]
with a [CT REQUESTED] minimum. 3. Domestic U.S. Termination
will be billed in increments of [CT REQUESTED] with a minimum of
[CT REQUESTED] 4. 800 U.S. Origination traffic will be billed
in increments of [CT REQUESTED] with a minimum of [CT REQUESTED]
4b. Xxxx Rendering: Call Data Records (CDR's) provided on floppy
diskette and summary invoice in paper form.
5. Special or Ancillary Information:
6. Cust. Account. [CT REQUESTED] (STARTEC Use only)
ACCEPTED BY:
STARTEC, Inc. Customer: MFS International,
Inc.
/s/: Xxxxxx Xxxxx (signature) /s/: Xxxx Xxx Xxxxx
Xxxxxx Kumar (print name) Xxxx Xxx Xxxxx
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Manager, Carrier Services Vice-President, International
(title) Carrier Relations
19 July 1996 (date) July 3, 1996
