WORLDCOM NETWORK SERVICES, INC.
TELECOMMUNICATIONS SERVICES AGREEMENT
(Switched Services)
This Telecommunications Services Agreement (the "TSA") is entered into as
of the 2 day of March by and between WORLDCOM NETWORK SERVICES, INC., a Delaware
corporation, with its principal office at 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 ("MCI WorldCom") AND Norstan Network Services, Inc.
a corporation, with its principal office at 0000 Xxxxx Xxx Xxxx, Xxxxxxxxxx, XX
00000 ("Customer").
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Switched Services: Other Documents: Start 6f Service. .
(A) Services. MCI WorldCom agrees to provide and Customer agrees to accept
and pay for switched telecommunications services and other associated services
(collectively the "Switched Services") as further described in the "Attachments"
attached hereto and incorporated herein by reference, which describe the
particular services, rates, specific terms and other information necessary or
appropriate for MCI WorldCom to provide the Switched Services to Customer. The
Switched Services provided by MCI WorldCom are subject to (i) the terms and
conditions contained in this TSA and the Program Enrollment Terms (the IIPET")
which is attached hereto and incorporated herein by reference, (ii) the rates
and discounts and other applicable terms set forth in Attachment(s) attached
hereto from time to time and 'incorporated herein by reference, and (iii) each
Service Request (described below) which is accepted hereunder. The PET, as
subscribed to by the parties, shall set forth the Effective Date, the Service
Term, Customer's minimum monthly commitment, if any, and other information
necessary to provide the Switched Services under this TSA. In the event of a
conflict between the terms of this TSA, the PET, the Attachments and the Service
Request(s), the following order of precedence will prevail: (1) the PET, (2) the
Attachments, (3) this TSA, and (4) Service Request(s). This TSA, the PET, and
the applicable Attachments are sometimes collectively referred to as the
"Agreement'.
(B) Service Requests. Customer's requests to initiate or cancel Switched
Services shall be described in an appropriate MCI WorldCom Service Request
("Service Request"). A Service Request may consist of machine readable tapes,
facsimiles or other means approved by MCI WorldCom. Further, Service Requests
shall specify all reasonable information, as determined by MCI WorldCom
necessary or appropriate for MCI WorldCom to provide the Switched Service(s) in
question, which shall include without limitation, the type, quantity and end
point(s) (when necessary) of circuits comprising a Service Interconnection as
described in the applicable Service Schedules, or automatic number
identification ("ANI") information relevant to the Switched Service(s), the
-Requested Service Date, and charges, if any, relevant to the Switched Services,
described In the Service Request.
(C) Start of Service. MCI WorldCom obligation to provide and Customer's
obligation to accept and pay for non-usage sensitive charges for Switched
Services shall be binding to the extent provided for in this Agreement upon the
submission of an acceptable Service Request to MCI WorldCom by Customer.
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Customer's obligation to pay for usage sensitive charges for Switched Services
shall commence with respect to any Switched Service as of the date tile Switched
Service in question is made available to and used by Customer ("Start of
Service"), but In no event later than the "Requested Service Date" if such
Switched Service is available for the Customer's use as of such Requested
Service Date. Start of Service for particular Services shall be further
described in the Attachment(s) relevant to the Switched Services in question:
2. Cancellation
(A) Cancellation Charge. At any time after the Effective Date, Customer may
cancel this Agreement if Customer provides written notification thereof to MCI
WorldCom not less than thirty (30) days prior to the effective date of
cancellation. In such case (or in the event MCI WorldCom terminates this
Agreement as provided in Section 7), Customer shall pay to MCI WorldCom all
charges for Services provided through the effective date of such cancellation
plus a cancellation charge (the "Cancellation Charge") equal to one hundred
percent (100%) of Customer's commitment(s), If any, (as described in the PET)
that would have become due for the unexpired portion of the Service Term.
(B) Liquidated Damages It Is agreed that .MCI WorldCom's damages in the
event Customer cancels this Agreement shall be difficult or impossible to
ascertain. The provision for a Cancellation Charge in Subsection 2(A) above is
intended, therefore, to establish liquidated damages in the event of a
cancellation and is not intended as a penalty.
(C) Cancellation Without Charge Notwithstanding anything to the contrary
contained in Subsection 2(A) above, Customer may cancel this Agreement, as
provided below, without incurring any cancellation charge (other than payment
for Services provided by MCI WorldCom up through the effective date of
cancellation), if (i) MCI WorldCom fails to provide a network as warranted in
Section 8 below; (ii) MCI WorldCom fails to deliver call detail records promptly
based on the frequency selected by Customer (i.e., monthly, weekly or-daily); or
(iii) MCI WorldCom fails to submit ANI(s) relevant to Customer's Service
Requests to the applicable local exchange companies ('LECs") within the time
period described in applicable Attachment(s). Provided, however, Customer must
give MCI WorldCom written notice of any such default and an opportunity to cure
such default within five (5) days of the notice. In the event MCI WorldCom fails
to cure any such default within the five-day period on more than three (3)
occasions within any six (6) month period, Customer may cancel this Agreement
without incurring any cancellation charge.
3. Customer's End Users.
(A) End Users Customer will obtain, and upon MCI WorldCom's request provide
MCI WorldCom (within two (2) business days of the date of the request), a
written letter of Agency ("LOA") acceptable to MCI WorldCom (or with any other
means if approved by the Federal Communications Commission ("FCC"), the
applicable public utility commission ("PUC") and the applicable LEC), for each
ANI indicating the consent of such end user of Customer ("End User") to be
served by Customer and transferred (by way of change of such End User's
designated presubscribed interexchange carrier (PIC)) to the MCI WorldCom
network prior to submitting a Service Request to MCI WorldCom. Each LOA will
provide, among other things, that the End User has consented to the transfer
being performed by Customer or Customer's designee. When applicable, Customer
will be responsible for notifying its End Users, in writing (or by any other
means if approved by the FCC, the applicable PUC and the applicable LEC) that
(i) a transfer charge will be reflected on their LEG xxxx for effecting a change
6/1A/99
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in their PIC, (ii) the entity name under which their interstate, intrastate,
local and/or operator services will be billed (if different from Customer), and
(iii) the "primary" telephone number(s) to be used for maintenance and questions
concerning their telecommunications services and/or billing. Customer agrees to
send MCI WorldCom a copy of the documentation Customer uses to satisfy the above
requirements promptly upon request of MCI WorldCom. MCI WorldCom may change the
foregoing requirements for Customer's confirming orders and/or for notifying End
Users regarding the transfer charge at any time in order to conform with
applicable FGC and state regulations. Provided, however, Customer will be solely
responsible for ensuring that the transfer of End Users to the MCI WorldCom
network conforms with applicable FOC and state regulations, including without
limitation, the regulations established by the FCC with respect to verification
of orders for long distance service generated by telemarketing as promulgated in
47 C.F .R., Part 64, Subpart Kt Sec.64.1100 or any successor regulation(s).
(B) Transfer Charges/Disputed Transfers Customer agrees that it is
responsible for (i) all charges incurred by MCI WorldCom to change the PIC of
End Users to the MCI WorldCom network, (ii) all charges incurred by MCI WorldCom
to change End Users back to their: previous PIC arising from disputed transfers
to the MCI WorldCom network plus, at MCI WorldCom's, option an administrative
charge equal to twenty percent (20%) of such charges, and (iii) any other
damages or costs suffered by or awards against MCI WorldCom resulting from
disputed transfers.
(C) Excluded AN Is Customer agrees to provide all AN Is to be carried on
the MCI WorldCom network prior to the provisioning of such ANls with the LECs.
MCI WorldCom has the right to reject any ANI supplied by Customer for any of the
following reasons: (i) MCI WorldCom is not authorized to provide or does not
provide long distance services in the particular jurisdiction in which the ANI
is located, (ii) a particular ANI submitted by Customer is not in proper form,
(iii) Customer is not certified to provide long distance services in the
jurisdiction In which the ANI is located, (iv) Customer is in material default
of this Agreement, (v) Customer fails to cooperate with MCI WorldCom in
implementing reasonable verification processes determined by MCI WorldCom to be
necessary or appropriate in the conduct of business, (VI) such ANI is rejected
by a LEG (e.g., "PIC freezes"), or (vii) any other circumstance reasonably
determined by MCI WorldCom which could adversely affect MCI WorldCom 's
performance under this Agreement or MCI WorldCom's general ability to transfer
its other customers or other end users to the MCI WorldCom network, including
without limitation, MCI WorldCom 's ability to electronically effect PIC changes
with the LECs. In the event MCI WorldCom rejects an ANI, MCI WorldCom will
notify Customer of its decision specifically describing the rejected ANI and the
reason(s) for rejecting that ANI, and will not incur any further liability under
this Agreement with regard to that ANI. Further, any ANI previously requested by
Customer for Switched Services may be deactivated by MCI WorldCom if no Switched
Services xxxxxxxx relevant thereto are generated in any three (3) consecutive
calendar month/billing periods. MCI WorldCom will be under no obligation to
accept AN Is submitted by Customer within the last full calendar month period
preceding the scheduled expiration of the Service Term.
(D) Records Customer will maintain documents and records ("Records")
supporting Customer's re-sale of Switched Services, including, but not limited
to, appropriate and valid documentation of each subscribing End User's
authorization to Customer to act as the End User's PIC for a period of not less
than twelve (12) months or such longer period as may be required by applicable
law, rule or regulation. Customer shall Indemnify MCI WorldCom for: any and all
costs, charges or expenses incurred by MCI WorldCom arising from disputed PIC
selections involving Switched Services to be provided to Customer.
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(E) Customer Service Customer will be solely responsible for billing its
End Users and providing such End Users with customer service. Customer agrees to
notify MCI WorldCom as soon as reasonably possible in the event an End User
notifies Customer of problems associated with the Switched Services, including
without limitation, excess noise, echo, or loss of service.
4. Customer's Responsibilities.
(A) Expedite Charges In the event Customer requests expedited services
and/or changes to Service Requests and MCI WorldCom agrees to such request, MCI
WorldCom will pass through the charges assessed by any supplying parties (e.g.,
local access providers) for such expedited charges and/or changes to Service
Requests involved at the same rate to Customer. MCI WorldCom may further
condition its performance of such request upon Customer's payment of such
additional charges to MCI WorldCom.
(B) Fraudulent Calls Customer shall indemnify and hold MCI WorldCom
harmless from any and all costs, expenses, damages, claims or actions arising,
from fraudulent calls of any nature which may comprise a portion of the Switched
services to the extent that the party claiming the call(s) in question to be
fraudulent is (or had been at the time of the call) an End User of such Switched
Services through Customer or an end user of the Switched Services through
Customer's distribution channels. Customer shall not be excused from paying MCI
WorldCom for Switched Services provided to Customer or any portion thereof on
the basis that fraudulent calls comprised a corresponding portion of the
Switched Services. In the event MCI WorldCom discovers fraudulent calls being
made (or reasonably believes fraudulent calls are being made), nothing contained
herein shall prohibit MCI WorldCom from taking immediate action (without notice
to Customer) that is reasonably necessary to prevent such fraudulent calls from
taking place, including without limitation, denying Switched Services to
particular AN Is or terminating Switched Services to or from specific locations.
Provided, however, nothing contained herein will impose any obligation on MCI
WorldCom to take any action with respect to fraudulent calls.
5. Charges and Payment Terms.
(A) Payment MCI WorldCom xxxxxxxx for Switched Services hereunder are made
on a monthly basis (or such other basis as may be mutually agreed to by the
parties) following Start of Service. Subject to Subsection 5(C) below, Switched
Services shall be billed at the rates set forth in the applicable Attachment(s).
Discounts, if any, applicable to the rates for certain Services are set forth in
the applicable Attachment(s). Customer will pay all undisputed charges relative
to each MCI WorldCom invoice for Switched Services within thirty (30) days of
the invoice date set forth .on each MCI WorldCom invoice to Customer ("Due
Date"). If payment is not received by MCI WorldCom on or before the Due Date,
Customer shall also pay a late fee in the amount of the lesser of one and
one-half percent (1-1/2%) of the unpaid balance of the charges for Switched
Services rendered per month or partial month that such payment is late, or the
maximum lawful rate under applicable state law.
(B.) Taxes Customer acknowledges and understands that MCI WorldCom Computes
all charges herein exclusive of any applicable federal, state or local use,
excise, gross receipts, sales and privilege taxes, duties, fees or similar
liabilities (other than general Income or property taxes), whether charged to or
against MCI WorldCom or Customer because of the Switched Services ,furnished to
Customer ("Additional Charges"). Customer shall pay such Additional Charges in
addition to all other charges provided for herein. Customer will not be liable
for certain Additional Charges if Customer provides MCI WorldCom with an
appropriate exemption certificate.
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(C) Modification of Charges MCI WorldCom reserves the right to eliminate
particular Switched Services and/or modify charges for particular Switched
Services (which charge modifications shall not exceed then-current generally
available MCI WorldCom charges for comparable services), upon not less than
sixty (60) days prior notice to Customer, which notice will state the effective
date for the charge modification. In the event MCI WorldCom notifies Customer of
the elimination of a particular Switched Service and/or an increase in the
charges, Customer may terminate this Agreement without incurring a cancellation
charge (other than payment for Services provided by MCI WorldCom up through the
effective date of cancellation) only with respect to the Switched Service(s)
affected by the increase in charges. In order to cancel such Switched
Service(s), Customer must notify MCI WorldCom, in writing, at least thirty (30)
days prior to the effective date of the increase in charges. In the event
Customer cancels its subscription to a particular Switched Service as described
in this Subsection 5(C), MCI WorldCom and Customer agree to negotiate in good
faith concerning Customer's minimum monthly commitment, if any, described in the
PET.
(D) Billing Disputes Notwithstanding the foregoing, amounts reasonably
disputed 'by Customer (along with late fees attributable to such amounts) shall
apply but shall not be due and payable for a period of sixty (60) days following
the Due Date therefor, provided Customer: (i) pays all undisputed charges on or
before the Due Date, (ii) presents a written statement and supporting
documentation of any billing discrepancies to MCI WorldCom in reasonable detail
on or before the Due Date of the Invoice in question, and (iii) negotiates in
good faith with MCI WorldCom for the purpose of resolving such dispute within
said sixty (60) day period. In the event such dispute is mutually agreed upon
and resolved in favor of MCI WorldCom, Customer agrees to pay MCI WorldCom the
disputed amounts together with any applicable late fees within ten (10) days of
the resolution (the "Alternate Due Date"). In the event such dispute is mutually
agreed upon and resolved in favor of Customer, Customer will receive a credit
for the disputed charges in question and the applicable late fees. In the event
MCI WorldCom has responded to Customer's dispute in writing and the parties fail
to mutually resolve or settle the dispute within such sixty (60) day period
(unless MCI WorldCom has agreed in writing to extend such period) all disputed
amounts together with late fees shall become due and payable, and this provision
shall not be construed to prevent Customer from pursuing any available legal
remedies. MCI WorldCom shall not be obligated to consider any Customer notice of
billing discrepancies which are received by MCI WorldCom more than sixty (60)
days following the Due Date of the invoice in question.
6. Credit; Creditworthiness:;
(A) Credit Customer's execution of this Agreement signifies Customer's
acceptance of MCI WorldCom's initial and continuing credit approval procedures
and policies. MCI WorldCom reserves the right to withhold initiation or full
implementation of any or all Switched Services under this Agreement pending MCI
WorldCom's initial satisfactory credit review and approval thereof which may be
conditioned upon terms specified by MCI WorldCom, including, but not limited to,
security for payments due hereunder in the form of a cash deposit or other
means. MCI WorldCom reserves the right to modify its requirements, if any, with
respect to any security or other assurance provided by Customer for payments due
hereunder in light of Customer's actual usage when compared to projected usage
levels upon which any security or assurance requirement was based.
(B) Creditworthiness If at any time there is a material adverse change, in
Customer's creditworthiness, then in addition to any other remedies available to
MCI WorldCom, MCI WorldCom may elect, in its sole discretion, to exercise one or
Page 5 of 11
more of the following remedies: (i) cause Start of Service for Switched Services
described in a previously executed Service Request to be withheld; (ii) cease
providing Switched Services pursuant to a Suspension Notice in accordance with
Section 7(A); (iii) decline to accept a Service Request or other requests from
Customer to provide Switched Services which MCI WorldCom may otherwise be
obligated to accept; and/or (iv) condition its provision of Switched Services or
acceptance of a Service Request on Customer's assurance of payment which shall
be a deposit or such other means to establish reasonable assurance of payment.
An adverse material, change in Customer's creditworthiness shall include, but
not be limited to: (i) Customer's material default of its obligations to MCI
WorldCom under this or any other agreement with MCI WorldCom; (ii) failure of
Customer to make full payment of all undisputed charges due hereunder on or
before the Due Date (or disputed charges on or before the Alternate Due Date) on
three (3) or more occasions during any period of twelve (12) or fewer months or
Customer's failure to make such payment on or before the Due Date (or the
Alternate Due Date, if applicable) in any two (2) consecutive months; (iii)
acquisition of Customer (whether in whole or by majority or controlling
Interest) by an entity which is Insolvent, which is subject to bankruptcy or
insolvency proceedings, which owes past due amounts to MCI WorldCom or any
entity affiliated with MCI WorldCom or which is a materially greater credit risk
than Customer; or, (iv) Customer's being subject to or having filed for
bankruptcy or Insolvency proceedings or the legal insolvency of Customer.
7 .Remedies for Breach.
(A) Suspension of Service In the event all undisputed charges due pursuant
to MCI WorldCom's invoice are not paid in full by the Due Date or disputed
charges owed by Customer, if any, are not paid in full by the Alternate Due
Date, MCI WorldCom shall have the right, after giving Customer at least five (5)
days prior notice and opportunity to pay such charges within such 5-day period,
to suspend all or any portion of the Switched Services to Customer ("Suspension
Notice") until such time (designated by MCI WorldCom In its Suspension Notice)
as Customer has paid in full all undisputed charges then due to MCI WorldCom,
including any late fees. Following such payment, MCI WorldCom shall reinstitute
Switched Services to Customer only when Customer provides MCI WorldCom with
satisfactory assurance of Customer's ability to pay for such Switched Services
(i.e.. a deposit, letter of credit or other means acceptable to MCI WorldCom)
and Customer's advance payment of the cost of reinstituting such Switched
Services. If Customer fails to make the required payment by the date set forth
in the Suspension Notice, Customer will be deemed to have canceled this
Agreement as of the date set forth In the Suspension Notice which cancellation
shall not relieve Customer for payment of the Cancellation Charge as described
in Section 2.
(B) Disconnection of Service In the event Customer is in material breach of
this Agreement, including without limitation, failure to pay all undisputed
charges due hereunder by the date stated in the Suspension Notice described in
Subsection 7(A) above, MCI WorldCom shall have the right, after giving Customer
at least five (5) days prior written notice and opportunity to cure (which
notice may be given instead of or in conjunction with the Suspension Notice
described In Subsection 7(A) above), and in addition to foreclosing any security
interest MCI WorldCom may, have, to (i) disconnect all or any portion the
Switched Services being provided hereunder and/or terminate this Agreement: (ii)
withhold billing information from Customer; and/or (iii) contact the End Users
(for whom calls are originated and terminated solely over facilities comprising
the MCI WorldCom network) directly and xxxx such End Users directly until such
time as MCI WorldCom has been paid in full for the amount owed by Customer. If
Customer falls to make payment by the date stated in the Suspension Notice and
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MCI WorldCom, after giving Customer five (5) days prior written notice,
terminates this Agreement as provided in this Section 7, such termination shall
not relieve Customer for payment of the Cancellation Charge as described in
Section 2 above.
8. Warranty.
MCI WorldCom will use reasonable efforts under the circumstances to
maintain its overall network quality .The quality of Switched Services provided
hereunder shall be consistent with telecommunications common carrier industry
standards, government regulations and sound business practices. MCI WORLDCOM
MAKES NO OTHER WARRANTIES ABOUT THE SWITCHED SERVICES PROVIDED HEREUNDER,
EXPRESS OR IMPLIED. INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. Liability: General Indemnity; Reimbursement
(A) Limited Liability IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES, INCLUDING. WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR
CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS ARISING IN ANY MANNER FROM THIS
AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
(B) General Indemnity In the event parties other than Customer (e.g.,
Customer's End Users) shall have use of the Switched Services through Customer,
then Customer agrees to forever indemnify and hold MCI WorldCom, its affiliated
companies and any third-party provider or operator of facilities employed in
provision of the Switched Services harmless from and against any and all claims,
demands, suits, actions, losses, damages, assessments or payments which those
parties may assert arising out of or relating to any defect in the Switched
Services or MCI WorldCom's provision or nonprovision of Switched Services under
this Agreement-
(C) Reimbursement Customer agrees to reimburse MCI WorldCom for all
reasonable costs and expenses incurred by MCI WorldCom due to MCI WorldCom's
direct participation (either as a party or witness) in any administrative,
regulatory or criminal proceeding concerning Customer if MCI WorldCom's
involvement in said proceeding is based solely on MCI WorldCom's provision of
Switched Services to Customer.
10. Force Majeure.
If MCI WorldCom's performance of this Agreement or any obligation hereunder
is prevented, restricted or interfered with by causes beyond its reasonable
control Including, but not limited to, ads of God, fire, explosion, vandalism,
cable cut, storm or other similar occurrence, any law, order, regulation,
direction, action or request of the United States government, or state or local
governments, or of any department; agency, commission, court, bureau,
corporation or other instrumentality of anyone or more such governments, or of
any civil or military authority, or by national emergency, insurrection, riot,
war, strike, lockout or work stoppage or other labor difficulties, or supplier
failure, shortage, breach or delay, then MCI WorldCom shall be excused from such
performance on a day-to-day basis to the extent of such restriction or
interference. MCI WorldCom shall use reasonable efforts under the circumstances
to avoid or remove such causes of nonperformance and shall proceed to perform
with reasonable dispatch whenever such causes are removed or cease.
11. State Certification.
Customer warrants that in all jurisdictions in which it provides long
distance services that require certification, it has obtained the necessary
certification from the appropriate governmental authority and, if requested by
MCI WorldCom, agrees to provide proof of such certification acceptable to MCI
WorldCom. In the event Customer is prohibited, either on a temporary or
permanent basis, from continuing to conduct its telecommunications operations in
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.. a given jurisdiction, Customer shall (i) immediately notify MCI WorldCom by
facsimile, (ii) send written notice to MCI WorldCom within twenty- four (24)
hours of such prohibition, and (iii) take immediate steps to suspend or
discontinue its use of Switched Services in such jurisdiction.
12. Interstate/Intrastate Service.
Except with respect to Switched Services specifically designated as
intrastate Services or international Services, the rates provided to Customer in
the applicable Attachments are applicable only to Switched Services if such
Switched Services are used for carrying interstate telecommunications (i.e.,
Switched Services subject to FCC jurisdiction}. MCI WorldCom shall not be
obligated to provide Switched Services with end points within a single state or
Switched Services which originate/terminate at points both of which are situated
within a single state. In those states where MCI WorldCom Is authorized to
provide intrastate service (i.e., telecommunications transmission services
subject to the jurisdiction of state regulatory authorities). MCI WorldCom will,
at its option, provide intrastate Switched Services pursuant to applicable state
laws, regulations and applicable tariff, if any, filed by MCI WorldCom with
state regulatory authorities as required by applicable law.
13. Authorized Use of MCI WorldCom Name: Press Releases.
Without MCI WorldCom1s prior written consent. Customer shall not (i) refer
to itself as an authorized representative of MCI WorldCom whenever it refers to
the Switched Services in promotional, - advertising or other materials, or (ii}
use MCI WorldCom's logos, trade marks, service marks, or any variations thereof
in any of its promotional, advertising or other materials. Additionally,
Customer shall provide to MCI WorldCom for its prior review and written
approval, all promotions, advertising or other materials or activity using or
displaying MCI WorldCom's name or the Services to be provided by MCI WorldCom.
In the event MCI WorldCom fails to provide its approval such promotion,
advertising or other materials shall be deemed not approved. Customer agrees to
change or correct, at Customer's expense, any such material or activity which
MCI WorldCom, in its sole judgment, determines to be inaccurate, misleading or
otherwise objectionable for any reason. Customer is explicitly authorized to
only use the following statements in its sales literature or if in response to
an inquiry by Customer's End User: (i) "Customer utilizes the MCI WorldCom
network", (ii) "Customer utilizes MCI WorldCom's facilities", (iii) "MCI
WorldCom provides only the network facilities", and (iv) "MCI WorldCom is our
network services provider". Except as specifically provided in this Section 13,
the parties further agree that any press release, advertisement or publication
generated by a party regarding this Agreement, the Services provided hereunder
or in which a party desires to mention the name of the other party or the other
party's parent or affiliated company(ies), will -be submitted to the
non-publishing party for its written approval prior to publication.
14. Notices.
Notices under this Agreement shall be in writing and delivered to the
person identified below at the offices of the parties as they appear below or as
otherwise provided for by proper notice hereunder. Customer shall notify MCI
WorldCom in writing if Customer's billing address is different than the address
shown below. The effective date for any notice under this Agreement shall be the
date of actual receipt of such notice by the appropriate party, notwithstanding
the date of mailing or transmittal via hand delivery or facsimile.
If to MCI WorldCom: WorldCom Network Services, Inc. 0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Attn: Wholesale Services
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If to Customer: Norstan Network Services, 0000 Xxxxx Xxx Xxxx, Xxxxxxxxxx, XX
00000, Attn: Xxx Xxxxxx, Telephone No.: 000-000-0000, Fax No.: 000-000-0000
15. No-Waiver.
No term or provision of this Agreement shall be deemed waived and no breach
or default shall be deemed excused unless such waiver or consent shall be in
writing and signed by the party claimed to have waived or consented. A consent
to waiver of or excuse for a breach or default by either party, whether express
or implied, shall not constitute a consent to, waiver of, or excuse for any
different or subsequent breach or default.
16. Partial invalidity: Government Action.
(A) Partial Invalidity If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, rule or
regulation, that part shall be Ineffective to the extent of such invalidity
only, without in any way affecting the remaining parts of that provision or the
remaining provisions of this Agreement. In such event, Customer and MCI WorldCom
will negotiate in good faith with respect to any such invalid or unenforceable
part to the extent necessary to render such part valid and enforceable-
(B) Government Action Upon thirty (30) days prior notice, either party
shall have the right, without liability to the other, to cancel an affected
portion of the Switched Service if any material rate or term contained in this
Agreement and relevant to the affected Switched Service is substantially changed
(to the detriment of the tem1lnating party) or found to be unlawful or the
relationship between the parties hereunder is found to be unlawful by order of
the highest court of competent jurisdiction to which the matter is appealed, the
FCC, or other local, state or federal government authority of competent
jurisdiction. Provided, the 3()- day notice required hereunder may be shortened
as necessary if such order goes into effect prior to thirty (30) days.
17. 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 Jaw or in equity.
18. Use of Service.
Upon MCI WorldCom's acceptance of a Service Request hereunder, MCI WorldCom
will provide the Switched Services specified therein to Customer upon condition
that such Services shall not be used for any unlawful purpose. The provision of
Switched Services is not Intended to and will not create a partnership or joint
venture between the parties or result in a joint communications service offering
to any third parties, and MCI WorldCom and Customer agree that this Agreement,
to the extent it is subject to FCC regulation is an inter-carrier agreement
which is not subject to the filing requirements of Section 211(a) of the
Communications Act of 1934 (47 U.S.C. Sec. 211(a)) as implemented in 47 C.F.R.
Sec. 43,51. "
19. Choice of Law: Forum.
(A) Law This Agreement shall be construed under the laws of the State of
Oklahoma without regard to choice of law principles.
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(B) Forum Any legal action or proceeding with respect to this Agreement may be
brought in the Courts of the State of Oklahoma in and for the County of Tulsa or
the United States of America for the Northern District of Oklahoma. By execution
of this Agreement, both Customer and MCI WorldCom hereby submit to such
Jurisdiction, hereby expressly waiving whatever rights may correspond to either
of them by reason of their present or future domicile. In furtherance of the
foregoing, Customer and MCI WorldCom hereby agree to service by U.S. Mail at the
notice addresses referenced in Section 14. Such service shall be deemed
effective upon the earlier of actual receipt or seven (7) days following the
date of posting.
20. Proprietary Information.
(A) Confidential Information The parties understand and agree that the
terms and conditions of this Agreement (but not the existence thereof), all
documents referenced herein (including invoices to Customer for Switched
Services provided hereunder), communications between the parties regarding this
Agreement or the Switched Services to be provided hereunder (including price
quotes to Customer for any services proposed to be provided or actually provided
'hereunder), as well as such information relevant to any other agreement between
the parties (collectively "Confidential Information"), are confidential as
between Customer and MCI WorldCom.
(B) Limited Disclosure A party shall not disclose Confidential Information
(unless subject to discovery or disclosure pursuant to legal process), to any
other party other than the directors. officers, and employees of a party or a
party's agents including their respective attorneys. consultants, brokers,
lenders, insurance carriers or bona fide prospective purchasers who have
specifically agreed in writing to nondisclosure of the terms and conditions
hereof. Any disclosure hereof required by legal process shall only be made after
providing the non-disclosing party with notice thereof in order to permit the
non-disclosing party to seek an appropriate protective order or exemption.
Violation by a party or its' agents of the foregoing provisions shall entitle
the non- disclosing party I at its option, to obtain injunctive relief without a
showing of irreparable harm or Injury and without bond.
(C) .Survival of Confidentiality The provisions. of this Section 20 will be
effective as of the date of this Agreement and remain in full force and effect
for a period Which will be the longer of (i) one (1) year following the date of
this Agreement, or (ii) one (1) year from the termination or expiration ,of all
Services hereunder.
21. Successors and Assignment
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors or assigns, provided, however,
that Customer shall not assign or transfer its rights or obligations under this
Agreement without the prior written consent of MCI WorldCom, which consent shall
not be unreasonably withheld or delayed, and further provided that any
assignment or transfer without such consent shall be void.
22. 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.
Page 10 of 11
(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 items shall not be taken to be
exclusive, but shall include other items, whether similar or dissimilar to those
listed, as the context reasonably requires.
(D) Rule of Construction No rule of construction requiring interpretation
against the drafting party hereof shall apply in the Interpretation of this
Agreement.
23. Entire Agreement
This Agreement consists of (i) all the terms and conditions contained
herein, and (ii) all documents incorporated herein specifically by reference.
This Agreement constitutes the complete and exclusive statement of the
understandings between the parties and supersedes all prior and contemporaneous
proposals and agreements (oral or written) between the parties relating to the
Switched Services provided hereunder. No subsequent agreement between the
parties concerning the Switched Services (including further Attachments) shall
be effective or binding unless it is made in writing and signed by Customer and
MCI WorldCom.
IN WITNESS WHEREOF I the parties have executed this Telecommunications
Services Agreement (Switched Services) as of the dates set forth below which
Agreement will be effective as described in the PET attached hereto.
WORLDCOM NETWORK SERVICES, INC Norstan Network Services, Inc.
/s/ L. O. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
(Signature) (Signature)
By: By:
