Telecommunications Services Agreement - IDX International Inc. and Destia Communications Services Inc.
TELECOMMUNICATIONS SERVICES AGREEMENT
THIS TELECOMMUNICATIONS SERVICES AGREEMENT ("Agreement") is entered into on July
30, 1999 (the "Effective Date"), between:
IDX INTERNATIONAL, INC., a Virginia corporation having a business address at
11410 Isaac Newton Square North, Suite 100, Reston, Virginia 20190 (hereinafter
"IDX"); and
DESTIA COMMUNICATIONS SERVICES, INC. a Delaware corporation having a business
address at 95 Route 17 South; Paramus, New Jersey 07652 (hereinafter
"Destia");collectively referred to as the "Parties" individually, a "Party.
WITNESSETH:
WHEREAS, IDX is a provider of international telecommunications services; and
WHEREAS, Destia desires to purchase certain telecommunications services provided
by IDX and IDX desires to provide certain telecommunications services to Destia,
all as more fully described below, subject to the terms and conditions contained
herein;
NOW THEREFORE, the Parties, in consideration of the mutual covenants and
agreements hereinafter set forth, agree as follows:
1. DESCRIPTION OF SERVICES
1.1 IDX, either directly or through its licensed and authorized affiliates or
underlying carriers, shall provide telecommunications services to Destia to
route Destia's international telecommunications traffic to and from various
destinations around the world, as more particularly described in Annex 1-A
attached hereto (the "IDX Services"). Where applicable, the IDX Services
shall be hereinafter referred to as the "Services." Additional services may
be added from time to time to this Agreement upon terms and conditions to
be mutually agreed upon by the Parties and may be included by adding an
amended Annex 1 to this Agreement.
The destinations offered by IDX for the providing Services are listed in
Annex 2-A attached hereto (the "IDX Destinations"). which Destinations may
be amended from time to time by IDX by providing Destia with seven (7) days
prior to written notice. Where applicable, the IDX Destinations are
hereinafter referred to as the "Destinations." Service shall be provided
pursuant to this Agreement as supplemented by applicable tariffs (including
tariff revisions) filed by IDX with the Federal Communications Commission
for international service ("Tariffs"). In the event of any conflict between
this Agreement and any Tariff. this Agreement shall control. Additionally,
the rates for Service set forth in this Agreement shall prevail in all
cases, and such rates shall only be subject to change as provided in this
paragraph.
2. TERM
2.1 This Agreement shall commence on the Effective Date and shall continue for
an initial term ("Term") of one (1) year. Thereafter this Agreement shall
remain in effect unless terminated by either Party by providing a written
one (1) month notice of termination to the other party.
2.2 IDX shall endeavor to provide the IDX Services on the date of completion of
testing (the "Service Date"). and each Party shall notify, the other Party.
when such testing for service is completed.
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IDX Services Agreement with Destia Communications Services, Inc.
4. OPERATIONAL AND COMMERCIAL MATTERS
4.1 The point of interconnection with Destia for the provision of IDX Services
by IDX shall be at 11410 Isaac Newton Square North, suite 101, Reston. VA
20190, a Washington D.C. connection point (the "IDX Interconnection
Location"). IDX will initially provide and pay for two Tls, and Desfia will
initially provide and pay for two Tls.
4.2 Destia shall be responsible to procure, at its own expense, all necessary
switching and multiplexer equipment to be located in the Destia
Interconnection Location to provide voice compression & decompression plus
International Direct Distance Dialing. This equipment shall remain the
property, of Destia. Destia agrees to provide and be responsible for the
operation of its equipment at such local facility and shall provide 7 days
and 24 hours of facility management and maintenance at the Destia Location.
4.3 IDX shall be responsible to procure, at its own expense, all necessary,
switching and multiplexer equipment to be located in the IDX
Interconnection Location to provide voice compression & o decompression
plus International Direct Distance Dialing. This equipment shall remain the
property, of IDX. IDX shall provide 7 days and 24 hours of facility
management and maintenance at the IDX Location.
4.4 The cost of a link will be paid by the party using it. The Parties shall
coordinate the management of their respective system facilities, with each
Party being responsible for providing and operating, at its own expense,
its respective network facilities. The Parties also shall Interface on a 24
hours/7 days a week basis to assist each other with the isolation and
repair of any facility faults in their respective networks, and with the
identification investigation and mitigation of real time traffic flow
problems to/from any service destination.
4.5 Destia shall provide prompt and accurate traffic forecasting information in
accordance with the requirements outlined below in order to allow the
efficient provisioning of the Services. Initial forecasts shall be provided
prior to the Services Date and periodically thereafter, though not more
frequently than every 90 days, as may be reasonably requested by IDX. Such
forecasts shall be in a form satisfactory to IDX and shall specify, traffic
volumes, daily and seasonal profiles, and peak periods for each
Destination. IDX understands and acknowledges that such forecasts shall
represent a good faith effort by Destia to estimate its traffic based on
historical patterns and anticipated pricing and are not intended to be a
promise by Destia to provide traffic in such patterns or amounts.
4.6 IDX reserves the right to cancel and/or temporarily suspend any of all of
the IDX Services if Destia engages in activities which, in the reasonable
opinion of IDX, may cause disruption of service or damage to IDX's network
of facilities. IDX shall use commercially reasonable efforts to provide
Destia with advance notice of such suspension and or cancellation and in
any case shall endeavor to provide written confirmation of such suspension
and or cancellation within a commercially reasonable time thereafter.
5. PRICING AND BILLING
5.1 For the IDX Services provided pursuant to the Agreement. Destia shall pay
IDX the rates (the "Rates") by IDX Destination set forth in Annex 2-A
attached hereto, which Rates may be adjusted by IDX from time to time by
providing seven (7) days prior written notice to Destia. The IDX Rates
shall hereinafter be referred to as the "Rates."
5.2 As soon as practicable after the end of each month, IDX shall submit
invoices to Destia for the services provided hereunder. Such invoices shall
be based on the chargeable duration of the calls routed pursuant to this
Agreement. The invoice will include traffic by destination, tariffs by
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IDX Services Agreement with Destia Communications Services, Inc.
destination and total amount due. For purposes of this Agreement, IDX
Services chargeable calls shall begin when IDX receives answer supervision.
5.3 All amounts due hereunder shall be payable to IDX in U.S. dollars in
immediately available funds within thirty, (30) days of the date of receipt
of the invoice, except as agreed to by both the Parties. If Destia in good
faith disputes any invoiced amount, it shall submit to IDX within sixty
(60) days following receipt of such disputed invoice, written documentation
identifying the minutes and/or rates which are in dispute. The Parties
shall investigate the matter. Any amounts due hereunder that are not paid
when due shall accrue interest at the rate of one and one-half percent
(1.5%) per month, compounded daily, beginning with the day following the
date on which payment was due, and continuing until paid in full.
5.4 IDX may at any time require Destia hereto to issue an irrevocable letter of
credit or other form of security acceptable to both IDX and Destia, if
Destia's financial circumstances or payment history is or becomes
unacceptable to IDX based upon reasonable supporting evidence.
5.5 All Rates and other charges due hereunder are exclusive of all applicable
taxes, including value added tax, sales taxes, and duties or levies imposed
by any authority, government or government agency, all of which shall be
paid promptly when due by the party purchasing services hereunder.
6. TERMINATION
6.1 In addition to any other rights at law or in equity, either party may
terminate this Agreement immediately in the event that (i) the other party
becomes insolvent or bankrupt, or ceases paying its debts generally as they
mature; or (iii) the other party commits a breach of any of the terms of
this Agreement (other than a breach of a payment obligation as addressed In
6.2 below) and fails to remedy such breach within thirty (30) days after
receipt of written notice thereof from IDX or (iii) any governmental entity
having jurisdiction over the telecommunications service provided under this
Agreement determines that the relationship of the Parties and/or
telecommunications services provided hereunder are contrary, to then
existing laws.
6.2 IDX may terminate this Agreement immediately in the event that Destia fails
to make any payment when due hereunder.
6.3 In the event of any termination pursuant to this Article 6. Destia shall
pay the applicable Rates for any Services rendered through and including
the date of termination.
7. LIMITATION OF LIABILITY; QUALITY OF SERVICE
7.1 The parties recognize that IDX has no control over how a foreign
administration or third part?' carrier establishes its own roles and
conditions pertaining to international telecommunications services. The
Parties agree that IDX shall not be liable for any loss or damage sustained
by Destia. its interconnecting carriers, or its end users due to any
failure in or breakdown of the communication facilities associated with
providing services hereunder, for any interruption or degradation of such
services, whatsoever shall be the cause or duration thereof.
7.2 In no event will IDX be liable to Destia for consequential, special, or
indirect losses or damages, howsoever arising: and whether under contract,
tort, or otherwise, including, without limitation. third party claims, loss
of profits, or loss of or damage to Destia's reputation or goodwill.
7.3 IDX will use reasonable efforts under the circumstances to maintain its
overall network quality. The quality, of telecommunications service
provided hereunder shall be consistent with other common carrier industry,
standards, government regulations and sound business practices.
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IDX Services Agreement with Destia Communications Services. Inc.
8. ASSIGNMENT
This Agreement is personal to the Parties and may not be assigned or
transferred by either Party without the prior written consent of the other
Party. Such consent may not be unreasonably withheld, except that the
parties agree that IDX may assign this Agreement without consent to any
affiliate or successor in interest whether by merger, reorganization, or
transfer of all or substantially all of its assets.
9. FORCE MAJEURE
No failure or omission by either Party to carry out or observe any of the
terms and conditions of this Agreement (other than any payment obligation)
shall give rise to any claim against such Party or be deemed a breach of
this Agreement, if such failure or omission arises from an act of God, an
act of Government or any other circumstance commonly known as force
majeure.
10. CONFIDENTIALITY
10.1 For a period of two (2) years from the date of disclosure thereof, each
Party shall maintain the confidentiality, of all information or data of any
nature ("Information") provided to it by the other Party hereto provided
such information contains a conspicuous marking ideal identifying it as
"Confidential" or" Proprietary." Each Party shall use the same efforts (but
in no case less than reasonable efforts) to protect the Information it
receives hereunder as it accords to its own Information. The above
requirements shall not apply to Information which is already in the
possession of the receiving Party through no breach of an obligation of
confidentiality, to the disclosing Party or any third Party, is already
publicly available through no breach of this Article 10. or has been
previously independently developed by the receiving Party. This Agreement
shall not prevent any disclosure of Information pursuant to applicable law
or regulation, provided that prior to making such disclosure, the receiving
Party uses reasonable efforts to notify the other Party of the required
disclosure. All Information provided by any Party to the other hereunder
shall be used solely for the purpose for which it is supplied.
10.2 Neither Party shall (i) refer to itself as an authorized representative of
the other Party in promotional, advertising, or other materials. (ii) use
the other Party's logos, trade marks, service marks, or any variations
thereof in any of its promotional, advertising, or other materials, or
(iii) release any public announcements referring to the other Party of this
Agreement without fist having obtained such Party's Prior written consent.
11. NOTICE
11.1 All notices, requests, or other communications hereunder shall be in
writing, addressed to the parties as follows:
If to Destia: Destia Communications Services. Inc,
95 Route 17 South
Paramus. New Jersey 07652
Attention: General Counsel
Tel: 201-226-4500
Fax: 201-226-4575
If to IDX: IDX International, Inc.
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IDX Services Agreement with Destia Communications Services, Inc.
11410 Isaac Newton Square North, Suite 100
Reston, Virginia 20190
Attention: Chief Operating Officer
Tel: 1-703-787-5727
Fax: 1-703-787-9006
11.2 Notices mailed by registered or certified mail shall be conclusively deemed
to have been received by the addressee on the fifth business day following
the mailing of sending thereof. Notices sent by telex or facsimile shall be
conclusively deemed to have been received when the delivery confirmation is
received. If either Party wishes to alter the address to which
communications to it are sent, it may do so by providing the new address in
writing to the other Party.
12. COMPLIANCE WITH LAWS
12.1 Destia shall not use the Services in any manner or for any purpose which
constitutes a violation of o applicable laws or the laws of any foreign
jurisdiction in which the Services are being provided. This Agreement and
the continuance hereof by the Parties is contingent upon the obtaining and
the continuance of such approvals, consents, governmental and regulatory
authorizations, licenses and permits as may be required or deemed necessary
by the Parties, and the Parties shall use commercially reasonable efforts
to obtain and maintain the same in full force and effect. Destia further
agrees to refrain from engaging in sales, advertising or marketing within
or outside of the United States which IDX believes could impair its or its
affiliates' relationship with any overseas authority.
12.2 The Parties acknowledge that this Agreement is subject to Section 211 of
the Communications Act, as amended, and shall govern IDX's provision of the
IDX Services to Destia. The Parties also understand and agree that the
terms and conditions herein shall, in all cases, supersede any terms set
forth in any IDX tariff on file and then in effect with the Federal
Communications Commission.
13. MISCELLANEOUS
13.1 Any article or any provision of this Agreement which is or becomes illegal,
invalid, or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity, or
unenforceability but shall not affect or impair the enforceability of the
remaining provisions herein. All valid provisions shall be considered
severed from any illegal invalid, or unenforceable Article or provision of
this Agreement and shall otherwise remain in full force and effect.
13.2 No waiver by either Party to any provisions of this Agreement shall be
binding unless made in writing. Any such waiver shall relate only to such
specific matter, non-compliance or breach to which it relates to and shall
not apply to any subsequent matter, non-compliance or breach.
13.3 The relationship between the Parties shall be that of parties contracting
independently at arms length and shall not be that of partners, and nothing
herein contained shall be deemed to constitute a partnership between them
or a merger of their assets or their fiscal or other liabilities or
undertakings. Neither Party shall have the right to bind the other Party,
except as expressly provided for herein.
13.4 This Agreement shall be governed by the laws of the Commonwealth of
Virginia, without reference to its principles of conflict of laws. Destia
irrevocably consents and submits to personal jurisdiction in the courts of
the Commonwealth of Virginia for all matters arising under this Agreement.
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IDX Services Agreement with Destia Communications Services, Inc.
13.5 This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original.
13.6 This Agreement, including the following Annexes:
Annex I-A IDX Services
Annex 2-A IDX Destinations and Rates
represents the entire understanding between the Parties in relation to the
matters herein and supersedes all previous agreements made between the
Parties, whether oral or written. This agreement can only be changed,
amended or modified by a writing signed by both Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement, in duplicate,
or caused this Agreement to be executed in duplicate by a duly authorized
officer, as of the date first above written.
IDX INTERNATIONAL, INC. DESTIA COMMUNICATIONS
SERVICES, INC.
By: /s/ Jose Marques By: /s/ Brett Lawrence
----------------------------- -------------------------------
Name: Jose Marques Name: Brett Lawrence
--------------------------- -----------------------------
Title: V.P. Business Development Title: V.P. and Asst. Gen. Counsel
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IDX Services Agreement with Destia Communications Services, Inc.
ANNEX 1-A
IDX SERVICES
1. International Direct Distance Dialing (IDDD) - IDX will provide facilities
to route international telecommunications traffic (IDDD type) and will
arrange with authorized international carriers to provide service to
various destinations around the world.
2.
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IDX Services Agreement with Destia Communications Services, Inc.
ANNEX 2
IDX DESTINATIONS AND RATES
DESTINATION PRICE (US$) EFFECTIVE DATE
----------- ----------- --------------
China 0.2750 Now
China (Mobile) 0.4100 Now
Hong Kong 0.0440 Now
Indonesia (Jakarta) 0.1400 Now
Indonesia (Rest) * 0.3400 Now
Ireland (Dublin) 0.0550 Now
Ireland (Rest) 0.0650 Now
Ireland (Mobile) 0.1200 Now
Philippines (Manila) 0.2050 Now
Philippines (Rest) 0.2300 Now
Philippines (Mobile) 0.2800 Now
Singapore 0.1125 Now
Singapore (Mobile) 0.2500 Now
Taiwan (Taipei) 0.0850 Now
Taiwan (Rest) 0.1200 Now
Taiwan (Mobile) 0.1900 Now
Vietnam * 0.7000 Now
o Mobile traffic upon request
o All charges: 30/06 seconds
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