Carrier Service Agreement - Fusion Telecommunications International Inc. and Telco Group Inc.
CARRIER SERVICE AGREEMENT
This Carrier Service Agreement is entered into on April 3, 2001, between Fusion
Telecommunications International, Inc., a Delaware corporation ("Provider"),
having its principal place of business at 420 Lexington Avenue, Suite 518, New
York, NY 10170 and Telco Group Inc. ("Purchaser"), a Delaware corporation,
having its principal office at 30-50 Whitestone Expressway, 1st floor, Flushing,
New York 11354.
RECITALS:
A. Provider provides telecommunications services between its location and
the outbound termination points identified on Exhibit A attached hereto
and incorporated herein by this reference and
B. Purchaser desires to purchase, upon the terms and conditions set forth
in this Agreement, telecommunications services from Provider.
AGREEMENT:
Now, therefore, intending to be legally bound, the parties agree
as follows:
1. RATES, TERMS AND CONDITIONS: Provider shall provide telecommunications
services to Purchaser at the rates, terms and conditions described in
Exhibit A, and to the termination points set forth in Exhibit A.
Purchaser acknowledges that the per minute rates set forth on Exhibit A
are preferential rates based on prompt payment on or before the Due
Date. The services to be provided are limited to those set forth in
Exhibit A and require from Purchaser a monthly minimum usage per T-1
and/or E-1 as set forth in said Exhibit. Rates listed in Exhibit A or
any subsequent rate sheet are subject to change by Provider with five
(5) days written notice to Purchaser.
2. PERIOD OF SERVICE: This Agreement shall become effective and the
parties' obligations shall commence upon the date set forth in Exhibit
A of this Agreement and shall continue (subject to Provider's right to
terminate this Agreement sooner) for a period of one year (12 months)
from such date (the Initial Term"). This Agreement will be
automatically renewed on a month-to month basis after the expiration of
the initial term or any subsequent term. If either party desires to
cancel this Agreement upon the expiration of the current term or any
subsequent term, it shall give the other party written notice of its
intent to cancel at least twenty (20) days prior to the expiration of
the current term. This Agreement shall continue and remain in full
force and effect until canceled by either party upon notice as provided
herein.
3. SECURITY: Purchaser shall submit financial documentation for review to
Provider's credit department. To ensure the prompt payment of sums due
hereunder, Purchaser shall furnish to Provider upon the execution of
this Agreement, a prepayment or security deposit in the form of cash,
irrevocable and unconditional letter of credit, or such other security
in form and amount acceptable to Provider. Upon request by Provider at
any time, Purchaser agrees to provide financial statements or other
indications of its financial circumstances. In addition, after service
commencement, Provider, at its option, may request additional security
if: (a) Purchaser's payment history, financial circumstances or credit
exposure becomes unacceptable, (b) if Purchaser's account balance, plus
unbilled usage exceeds the amount of any security deposit or assurance
requirement or (c) in light of Purchaser's actual usage when compared
to projected usage levels upon which any prior security or assurance
requirement was based. Purchaser shall provide the requested additional
security within two (2) days/forty-eight (48) hours: after request by
Provider. In the event that Purchaser fails to provide the requested
security in accordance with this provision, Provider may suspend
service and/or terminate this Agreement without further notice.
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4. ADDITIONAL SECURITY PROVISIONS: The dollar value of service available
to Purchaser shall be limited to the dollar amount of the prepayment or
security deposit available to Provider. The amount of any required
prepayment, cash security deposit, or letter of credit is outlined in
Exhibit A. Any letter of credit shall be substantially similar in form
to Exhibit A to this Agreement and shall be from a financial
institution reasonable acceptable to Provider.
5. BILLING INCREMENTS: All traffic shall be billed with an initial 30
second minimum increment, followed by 6 second additional increments
(i.e. a minimum call length 30 seconds with all additional usage
rounded up to the nearest 6 second increment). The sole exception to
this billing arrangement shall be traffic terminating in Mexico which
shall be billed in full minute increments (i.e. a minimum call length
60 seconds with additional usage rounded up to the nearest full
minute).
6. BILLING PERIOD/PAYMENT SCHEDULE: The billing period shall be seven days
long, commencing at 12:00:00 a.m., Eastern Standard Time, on Monday and
continuing through 11:59:59 p.m. Eastern Standard Time, the following
Sunday. Provider shall send bill to Purchaser for service provided
during the preceding billing period (i.e. the prior seven days), via
e-mail or facsimile, by close of business each Monday. Payment of the
amount shown on the bill is due from Purchaser by 5:00 p.m., Eastern
Standard Time, the following Thursday (i.e. three working days later)
(the "Due Date"). All payments are to be made by wire transfer per the
banking information detailed in Exhibit B. The charges for services
that are not paid by the Due Date shall be deemed past due. The
uncollectability, fraud or any other problem that may affect Purchaser
in the assessment, appraisal, accounting, billing or collecting of debt
will never exempt Purchaser from the obligation of full payment to
Provider. Any payment received by Provider after the Due Date shall be
subject to an interest charge on delinquent amounts from the date such
amounts were due at the rate of one and a half percent (1.5%) of the
late payment per month (or, if unlawful, the maximum lawful rate
allowable under applicable law).
7. TAXES: Purchaser acknowledges and understands that all charges stated
in the Exhibits hereto are computed by Provider exclusive of any
applicable use, excise, gross receipts, sales and privilege taxes,
duties, fees or other taxes or similar liabilities, including but not
limited to universal service or pursuant to similar regulatory, federal
or state laws, whether charged to or against Purchaser or Provider
because of the services furnished to Purchaser pursuant to this
Agreement ("Additional Charges"). Purchaser also acknowledges and
understands that such Additional Charges will be invoiced by Provider
only if Purchaser has not provided Provider with a direct payment
permit, sale for resale exemption certificate, sales tax exemption
certificate or other applicable exemption certificate and any
non-exempt Additional Charges shall be paid by Purchaser, in addition
to all other charges provided for herein.
8. BILLING DISPUTES: If Purchaser, in good faith, disputes the amount or
appropriateness of a charge included in an invoice, it shall notify
Provider in writing and provide supporting documentation establishing
such claim. Such documentation supporting disputed charges shall
include a detailed analysis showing the difference between the specific
invoice amount and Purchaser's specific asserted amount. A summary of
the disputed charges will not be accepted. Purchaser shall further
provide all information reasonably requested by Provider including, but
not limited to, call detail records (CDRs), to resolve the dispute.
Such notification shall not relieve Purchaser of the obligation to make
all undisputed payments, by the Due Date. Any resolution made by
Provider in favor of Purchaser shall be credited to Purchaser's next
invoice. Failure to contest a charge within thirty (30) calendar days
from receipt of an invoice shall create an irrefutable presumption of
the correctness of the charge.
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Upon dispute, the parties agree to use their best efforts to resolve
the dispute in good faith within thirty (30) calendar days of
Purchaser's receipt of invoice. In the event that the parties are
unable to resolve the dispute within this thirty (30) day period, the
dispute shall be submitted to arbitration as otherwise provided for in
this Agreement.
9. DISPUTE RESOLUTION: In the event of any controversy or claim arising
from or related to this Agreement, its performance or interpretation,
the parties, in good faith, initially will attempt to resolve the
dispute among themselves. Failing such resolution, the dispute will be
settled by binding arbitration conducted in accordance with the
commercial Arbitration Rules of the American Arbitration Association
("AAA Rules"), as amended by this Agreement and judgment upon the award
rendered by the arbitrator(s) may be entered by any court with
jurisdiction. The location of the arbitration shall be New York, New
York. The cost of the arbitration, including the fees and expenses of
the arbitrator(s), shall be shared equally by the parties unless the
arbitration award provides otherwise. Each party shall bear the cost of
preparing and presenting its case. The arbitrator(s) are not empowered
to award damages in excess of compensatory damages and each party
irrevocably waives any damages in excess of compensatory damages.
10. RIGHT TO COLLECT AGAINST FUNDS ON DEPOSIT: IF FULL PAYMENT IS NOT
RECEIVED BY PROVIDER WHEN DUE, PROVIDER SHALL HAVE THE RIGHT, WITH 48
HOUR NOTICE, TO MAKE PAYMENT OUT OF FUNDS ON DEPOSIT. FOR THE PURPOSES
OF THIS AGREEMENT, PAYMENT SHALL NOT BE DEEMED TO BE MADE UNTIL FUNDS
HAVE CLEARED INTO PROVIDER'S ACCOUNT.
11. SERVICE INTERCONNECTIONS:
11.1 INTERCONNECTION OF PURCHASER FACILITIES: In order to receive services
via TDM connection from Provider hereunder, Purchaser must establish
dedicated DS-1 circuits between Purchaser's designated network and
Provider's designated network meet point ("POP") as specified in
Exhibit A. Purchaser shall pay any installation charges and continuing
charges for circuits used to connect Purchaser to Provider's POP in
compliance with network interface procedures.
11.2 CIRCUIT UTILIZATION:
12. TERMINATION:
12.1 REGULATORY CHANGES: If the FCC, any state or other regulatory agency or
court of competent jurisdiction elects to implement or enforce a rule,
regulation, law or order which has the effect of cancelling, changing,
or superseding any material term or provision of this Agreement or rate
charged (collectively "Regulatory Requirement"), then this Agreement
shall be deemed modified in such a way as the parties mutually agree is
consistent with the form, intent and purpose of this Agreement and as
is necessary to comply with such Regulatory Requirement. Should the
parties not be able to agree on modifications necessary to comply with
a Regulatory Requirement within thirty (30) days after the Regulatory
Requirement is implemented or enforced, then upon written notice either
party may, to the extent practicable, terminate that portion of this
Agreement impacted by the Regulatory Requirement enforcement.
12.2 NON-PAYMENT: If payment has not been received by the Due Date, for all
charges (including transmission charges, service charges and monthly
fixed charges, if any) billed to Purchaser, then Provider may, at its
sole discretion and with five (5) days prior written notice to
Purchaser, terminate transmission services and/or this Agreement in
part or in whole.
12.3 CORPORATE DISSOLUTION: Either party may terminate this Agreement in the
event the other party makes an arrangement or composition with its
creditors generally or makes an application to a court of competent
jurisdiction for protection from its creditors generally or a
bankruptcy order is made against the other party or a resolution is
passed by it for its winding up, a court of competent jurisdiction
makes an order for its winding-up or dissolution, an administration
order is
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made in relation to it or a receiver is appointed over (or an
encumbrance takes possession of or sells) any of its assets.
12.4 BREACH OF AGREEMENT In the event of a breach of any material term or
condition of this Agreement by a party (other than failure to pay which
is covered under Section 12.2 above or failure to provide additional
security which is covered under Section 3 above), the other party may
terminate this Agreement upon thirty (30) days written notice, unless
the breaching party cures the breach during the thirty (30) day period.
12.4.1 Upon any material breach by Purchaser after expiration of
all applicable notice and cure periods, Provider may at its sole
option do any or all of the following:
(I) cease accepting traffic;
(ii) cease all electronically and manually generated
information and reports;
(iii) draw on any letter of credit, security deposit or
other assurance of payment and enforce interest
provider by Purchaser;
(iv) terminate this Agreement and services without
liability to Provider;
(v) pursue such other legal or equitable remedy or relief
as may be appropriate.
12.5 NETWORK PROTECTION: In the event Purchaser's service traffic volumes
(or traffic distribution patterns to individual cities and countries)
results in a lower than industry standard completion rate, severely
abnormal or disproportionate distribution of traffic by city, or other
similar abnormality which adversely affects the Provider network
(including, but not limited to looping situations where Purchaser's
traffic is delivered by Provider to another carrier for termination and
ultimately returned to Provider), Provider reserves the right to block
and refuse to accept such adverse traffic at any time, with prompt
notice as soon as possible thereafter.
13. NO WARRANTIES: PROVIDER SHALL USE REASONABLE EFFORTS TO PROVIDE
TELECOMMUNICATION SERVICES TO PURCHASER, HOWEVER, PROVIDER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRANSMISSION SERVICES
PROVIDED HEREUNDER AND EXPRESSLY DISCLAIMS ANY WARRANTY OF
MERCHANTIBILITY, DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE OR
FUNCTION.
13. WAIVER OF LIABILITY: As a material inducement for Provider to provide
the services hereunder at the prices stated, Purchaser agrees that
Provider shall in no event be liable to Purchaser or Purchaser's own
customers for any loss, expense or damage for (i) loss of revenue,
profits, savings, business or goodwill,and (ii) exemplary, proximate,
consequential, or incidental damages and expenses of any type or nature
on account of any breach or default hereunder by Provider or on account
of the use or nonuse or the services.
14. INDEMNITY: Purchaser shall indemnify and hold harmless Provider, its
stockholders, officers, directors, employees and agents from any and
all loss, cost damage, expense or liability, including without
limitation, court costs and reasonable attorneys' fees, arising out of,
in whole or in part, directly or indirectly, the installation, hook-up,
maintenance, service or trouble-shooting of the transmission services
described in this Agreement including any interruption of transmission
service to Purchaser, its employees, agents and customers, except when
caused by the gross negligence by the Provider or the intentional
violations of any applicable law or governmental regulation by
Provider.
15. PROVISION OF INFORMATION AND CONFIDENTIALITY:
15.1 Each party undertakes to the other to promptly provide all information
and assistance which the other may reasonably require to enable it to
perform its obligations under this Agreement.
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15.2 Subject to sub-Section 15.3, each party undertakes to the other that it
will treat as confidential, and will use its reasonable endeavors to
procure that its directors, employees, professional advisers and agents
will treat as confidential, the terms and conditions of this Agreement
as well as all data, summaries, rates, reports or information of all
kinds and all other confidential information whether of a technical or
business nature or otherwise relating in any manner to the business or
affairs of the other party which it may receive in connection with this
Agreement, and will not (and will use its reasonable endeavors to
procure that its directors, employees, professional advisers and agents
will not) disclose or use such information other than strictly for the
purposes of this Agreement except with the written permission of the
other party.
15.3 The provisions of sub-Section 15.2 shall not apply to information held
by a party which
15.3.1 is in or comes into the public domain other than by breach of
this Agreement;
15.3.2 is obtained by that party from a third party who has the right
to disclose it;
15.3.3 is or has been independently generated by that party (but not
including data generated by that party about calls handed over
by the other party); or
15.3.4 is in the possession of or is known to that party prior to the
date of this Agreement, to the extent that party is not bound
by any confidentiality obligation in respect of such
information to the other party.
15.4 The following disclosures by either party shall not constitute a breach
of sub-Section 15.2:
15.4.1 a disclosure of information necessary to comply with any law
or the valid order of a court of competent jurisdiction or the
rule, regulation or request of any governmental or other
regulatory authority or agency provided that the party
disclosing the information shall request confidential
treatment of such information by the third party to which it
is disclosed;
15.4.2 a disclosure of information to a party's auditors and/or other
professional advisors or as part of its normal reporting or
review procedure to its parent company, members or partners as
the case may be, provided that the party disclosing the
information will endeavor to procure that its auditors,
professional advisors, parent company members and partners
will also treat such information as confidential;
15.4.3 a disclosure of information made in order to enforce its
rights under this Agreement;
15.4.4 a disclosure made to a financial institution, lender of funds
or financial advisor where such disclosure is required as part
of an arrangement for the financing or refinancing of such
party;
provided, however, that before making any disclosure pursuant to this
sub-Section 15.4, the recipient party agrees that it will provide the
disclosing party with prompt written notice so that the disclosing
party has the opportunity to pursue its legal and equitable remedies
regarding potential disclosure.
15.5 On termination of this Agreement for whatever reason, the
recipient party shall return to the disclosing party (or, at
the discretion of the disclosing party, destroy) all copies of
confidential information of the other party which it has in
its possession. The provisions of this Section 16 shall
survive the termination or expiry of this Agreement for any
reason whatsoever.
16. NO AGENCY: Neither party is authorized to act as an agent for, or legal
representative of, the other party and neither party shall have the
authority to assume or create any obligation on behalf of, in the name
of, or binding upon the other party.
17. FORCE MAJEURE: The parties' obligations under this Agreement are
subject to and neither party shall be liable for (except for the
obligation to pay money by Purchaser): delays, failures to perform,
damages, losses or destruction, or malfunction of any equipment or any
consequence
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thereof caused or occasioned by, or due to fire, flood, water, the
elements, labor disputes or shortages, utility curtailments, power
failures, explosion, civil disturbances, governmental actions,
shortages of equipment for supplies, unavailability of transportation,
acts or omissions of third parties, or any other cause beyond the
party's reasonable control. Purchaser shall not represent that Provider
is responsible for the type or quality of Purchaser's services to its
customers
18. NO WAIVER: The failure of either party to enforce or insist upon
compliance with any of the provisions of this Agreement or the waiver
thereof, in any instance, shall not be construed as a general waiver or
relinquishment of any other provision of this Agreement.
19. BINDING EFFECT: This Agreement shall be binding upon and inure to the
benefit of the parties' hereto and their respective heirs, successors
and assigns.
20. NO ASSIGNMENT: Neither party shall voluntarily or by operation of law
assign, transfer, license, or otherwise transfer all or any part of its
right, duties or other interest in the Agreement of the proceeds
thereof (collectively, "Assignment"), without the other party's prior
written consent, which consent shall not be unreasonably withheld or
delayed. Any attempt to make an Assignment in violation of this
provision shall be null and void. Purchaser and Provider shall provide
written notice to the other of any change in ownership or control.
Either party's failure to comply with the assignment provisions, as
contained in this paragraph, shall give the other, at its sole
discretion, the option to either accept the others assignee or
terminate this Agreement. No assignment shall release the other of its
obligations hereunder.
21. AMENDMENT: This Agreement may not be amended except by an instrument in
writing, executed by the parties. The acknowledgment or acceptance
hereto shall effect no modification or amendment by either party of any
purchaser order, sales acknowledgment or other similar form from the
other party.
22. MERGER: This Agreement (including its Exhibits) supersedes and merges
all prior agreements, promises, understandings, statements,
representations, warranties indemnities and covenants and all
inducements to the making of this Agreement relied upon by either party
herein, whether written or oral, and embodies the parties' complete and
entire agreement with respect to the subject matter hereof. No
statement or agreement, oral or written, made before the execution of
this Agreement shall vary or modify the written terms hereof in any way
whatsoever.
23. INTERPRETATION: The words and phrases used herein shall have the
meaning generally understood in the telecommunications industry. This
Agreement shall be construed in accordance with its fair meaning and
not for or against either party drafted this Agreement.
24. THIRD PARTY BENEFICIARIES/PARTIES IN INTEREST: This Agreement has been
made and is made solely for the benefit of the Provider and Purchaser,
and their respective successors and permitted assigns. Nothing in this
Agreement is intended to confer any rights/remedies under or by reason
of this Agreement on any third party.
25. REPRESENTATION OF AUTHORITY: Each party represents and warrants to the
other that the execution and delivery of this Agreement and the
performance of such party's obligations hereunder have been duly
authorized and that the Agreement is a valid and legal agreement
binding on such parties and enforceable in accordance with its terms.
26. FURTHER ASSURANCES: The parties shall at their own cost and expense
execute and deliver such further documents and instruments and shall
take such other actions as may be reasonably required or appropriate to
carry out the intent and purposes of this Agreement.
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27. GOVERNING LAW: This Agreement shall be in all respects, governed by and
construed and enforced in accordance with the laws of the State of New
York, including all matters of construction, validity and performance.
28. COUNTERPARTS: This Agreement may be executed in several counterparts,
each of which shall constitute an original, but all of which shall
constitute one and the same instrument.
29. NOTICES: All notices, demands, requests and other communications
required or permitted hereunder shall be in writing and shall be deemed
to be delivered on the earlier of: (a) the date of actual receipt; (b)
three days after the date of mailing, by certified or registered mail,
duly addressed and with proper pre-paid postage, with return receipt
requested, to the last known place of business of either party; or (c)
the day after being sent via a nationally recognized overnight courier
service such as Federal Express. Notices will be delivered as follows:
PROVIDER: Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 518
New York, New York 10170
Attn: Sales Dept
Phone: 212-201-2400
Fax: 212-972-7884
PURCHASER: TELCO GROUP, INC.
30-50 Whitestone Expressway
1st Floor
Flushing, New York 11354
Attn: COTRACT ADMINISTRATION
Phone:718-358-5390
Fax: 718-358-4625
IN WITNESS WHEREOF the parties have executed this Agreement as
of the day and year first written above.
Fusion Telecommunications Int'l, Inc. Purchaser: Telco Group
By: / Joseph M. Troche/ By: /s/
--------------------------- --------------------------------
Printed Name: Joseph M. Troche Printed Name: _____________________
Title: VP Wholesale Markets Title: EVP Network OPS
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EXHIBIT A
1. FUSION GATEWAY LOCATION ("POP"): For all TDM services rendered by Provider to
Purchaser under this Agreement, the Fusion Gateway Location ("POP") shall be the
facilities maintained by Fusion at 75 Broad St., New York,NY. Purchaser is
responsible for all connection fees, circuit costs of local loop fees necessary
for connection to Provider. If Purchaser does not fulfill the monthly minimum
minutes per T-1 (100,000 minutes monthly), a monthly charge of $350.00 per DS-1
will be separately billed to Purchaser by Provider on the first of the month.
3. RATES: The following rates shall apply to the Services rendered by Provider:
Provider rates to follow
EXHIBIT B
WIRING INSTRUCTIONS:
[OMITTED IN ELECTRONIC VERSION]
FOR: FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
420 Lexington Ave, Ste 518 - New York, NY 10170
Chase Manhattan Bank
ABA #: 021000021
Acct #: 777-390515
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EXHIBIT C
UNITED STATES TAX EXEMPTION CERTIFICATE
THE UNDERSIGNED CLAIMS exemption under Section 4235(f) of the United States
Internal Revenue Code from the taxes imposed by Section 4251 and any state of
other codes that may apply to the taxation of communication services.
THE UNDERSIGNED AGREES to notify Fusion Telecommunications International, Inc.
in writing when the basis for tax exemption indicated above changes or ceases to
exist.
THE UNDERSIGNED UNDERSTANDS that the fraudulent use of this certificate will
subject all guilty parties to criminal penalties resulting in fines or
imprisonment.
Billing Name of Account: Teleco Group, Inc.
Signature of Authorized Representative: /Douglas B. Barley/
-----------------------------
Printed Name: Douglas B. Barley
Title: CFO
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COLOCATION LICENSE AGREEMENT
This Colocation License Agreement ("Agreement") is made and entered into as of
this 28 day of Jan., 2002 between, Fusion Telecommunications International,
Inc., a Delaware corporation with its principal office located at 420 Lexington
Avenue, Suite 518, New York, NY 10170 ("Fusion") and Telco Group Inc., a
Delaware corporation with its principal office located at 30-50 Whitestone
Expressway, Suite 101, Flushing, NY 11354 ("Telco Group" or "Licensee").
A. Fusion is engaged in the business of providing customers with networking and
telecommunications services through its telecommunications facilities, including
the facility located at 75 Broad Street, 19th Floor, New York, NY (the
"Facility").
B. Fusion has the right to permit other telecommunications companies to
collocate with it at the Facility, as long as other collocations do not infringe
upon the space occupied by Licensee.
C. Telco Group desires to enter into an agreement with Fusion for the use of the
Facility for the purpose of installing equipment and operating its network, and
Fusion desires to grant to Licensee the right to use the Facility upon the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the following mutual exchange of promises
and covenants, the parties agree as follows:
1. GRANT OF LICENSE:
(a) Subject to the terms and conditions contained herein, Fusion hereby
grants to Telco Group an exclusive license to install, operate, and maintain
certain communications equipment of Licensee in the Facility. Licensee shall
have use of the equipment space described in Exhibit A ("Equipment Space").
Telco Group shall also be afforded the use of other ancillary services of the
Facility, including, but not limited to, battery backup or uninterruptible power
supply, electricity and air conditioning.
(b) Fusion hereby reserves all rights not specifically granted to Licensee,
including, without limitation, the right to: (1) access to and use of the
Facility for its own use and for the use of its agents and licensees; (2) grant
additional licenses to other uses; and (3) exercise or grant other rights not
inconsistent with the rights granted hereunder.
(c) This License is expressly made subject and subordinate to the terms and
conditions of any underlying ground or facilities lease or other superior right
by which Fusion has acquired its interest in the Facility. Licensee agrees to
comply with any terms and conditions of such superior right. If the consent of
the holder of such superior right is required in order for the parties to enter
into the License, then this License shall not become effective until such
consent is obtained. If any action or consent is required of Licensee under the
terms of such superior right, Fusion agrees to provide to Licensee, within (30)
days following receipt of Licensee's written request, copies of any documents
evidencing any such superior rights.
2. TERM:
(a) Telco Group's license to occupy the space described in Exhibit A shall begin
on February 7, 2002, or the date of the completion of the infrastructure build
out of the space ("Commencement Date"). The "Minimum Term" of the Customer's
license to occupy the Equipment Space shall be two (2) years from the
commencement date.
(b) If Fusion fails for any reason to tender possession of the Equipment Space
to Telco Group Inc. within ninety (90) days of the date of this Agreement,
Licensee may, upon written notice to Fusion, declare this Agreement null and
void. If Licensee declares this Agreement null and void, it shall not be
obligated to pay any fees hereunder and Fusion shall refund all fees and charges
paid in advance by licensee.
(c) Provided that Licensee is not in default of this Agreement with Fusion,
Licensee shall have the option, upon thirty (30)
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COLOCATION LICENSE AGREEMENT
days prior written notice to Fusion, to renew its license to occupy the
Equipment Space for an additional period of one (1) year ("Renewal Period") on
the terms and conditions which are set forth in this Agreement. The Minimum Term
and any and all Renewal Periods may be collectively referred to as the "Term."
(d) Any option Granted to Licensee to renew its license to occupy the Equipment
Space shall be contingent upon the election by Fusion to continue to own or
lease the Premises in which the Equipment Space is located for the duration of
the Renewal Period(s), with such election to be exercised at the sole discretion
of Fusion.
3. LICENSE FEES AND OTHER CHARGES:
(a) As a license fee for use of the Equipment Space and the Facility during the
term of the License, Licensee shall pay to Fusion a monthly recurring charge of
$8,150.00 (Eight Thousand One Hundred Fifty dollars) for year 1 and $8,254.17
(Eight Thousand Two Hundred Fifty-four dollars and Seventeen cents) for year 2.
The monthly recurring charge shall be due and payable in advance on the first
day of each calendar month during the term, commencing with the installation of
the equipment in the Equipment Space, or the Commencement Date, whichever occurs
earlier. If the term commences or ends on a day other than the first day of the
calendar month, then the monthly recurring charge for the month in which the
term commences or ends shall be prorated (and paid at the beginning of the
month) in proportion that the number of days this License is in effect during
such month bears to the total number of days in the month. If the monthly
recurring charge is not paid when due, the amount due and payable shall be
subject to a late payment charge equal to two percent (2%) of such amount.
(b) In addition, Licensee shall pay to Fusion, within ten (10) days of receipt
of an invoice from Fusion, all pre-approved costs incurred by Fusion in making
modifications or improvements to the Facility or the Equipment Space for
Licensee, or for fire suppression, energy sources or other utilities, and the
costs of any work or service performed for, or facilities furnished to, Licensee
to a greater extent or in a manner more favorable to Licensee than that
performed for or furnished to others within the Facility. A preliminary estimate
of these types of costs which Fusion will initially incur, and for which
Licensee shall reimburse Fusion within thirty (30) days of receipt of an invoice
from Fusion, is set forth on the attached Exhibit B. If any such costs are not
paid when due, the amount due and payable shall be subject to a later payment
charge equal to two percent (2%) of such amount.
4. USE OF THE FACILITY: Licensee shall use the Facility and the Equipment Space
solely for the purpose of installing, maintaining and utilizing the
communications equipment and other personal property of Licensee installed in
the Facility pursuant to the terms of this License for interconnection with the
facilities of Fusion and the local exchange carriers and competitive access
providers that are present in the facility, or brought into the Facility by
licensee, and for no other purpose. Licensee shall not use the Facility of the
Equipment Space except in accordance with the terms of this License.
In its use of the Facility and the Equipment Space, Licensee shall not interfere
with, or connect its equipment to that of, any customer of Fusion or any other
tenant or licensee within the Facility.
Except as otherwise provided herein, Licensee's equipment shall remain the sole
property of Licensee, and Fusion's equipment shall remain the sole property of
Fusion. Licensee expressly disclaims any right, title, or interest in or to any
of Fusion's equipment or property of that of any of Fusion's affiliates,
customers, agents or licensees, whether located in the Facility, the Equipment
Space, or elsewhere.
5. ACCESS TO FACILITY; INSTALLATION AND MAINTENANCE OF EQUIPMENT: Licensee shall
have unrestricted access to the Equipment Space for 24 hours a day, 7 days a
week.
6. ACCEPTANCE OF FACILITY AND THE EQUIPMENT SPACE: The installation of equipment
by Licensee shall be conclusive evidence that Licensee accepts the Facility and
the Equipment Space "as is, " and that the Facility and the Equipment Space are
suitable for the use intended by Licensee and were in satisfactory condition at
the time the equipment was installed.
7. MAINTENANCE OF PERMISES: Licensee, at its own cost and expense, shall
protect, maintain and keep in good order the Equipment Space and any equipment
in the Equipment Space, and shall ensure that neither Licensee nor its
employees, agents, contractors or invitees damage any part of the Facility, the
Equipment Space, and/or any equipment located in or about the Facility. Licensee
shall not maintain or permit any nuisances or violations of governmental laws,
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COLOCATION LICENSE AGREEMENT
rules, regulations, or ordinances with respect to the Facility. Licensee shall
ensure that its employees, agents, contractors, or invitees shall not permit any
explosive, flammable, or combustible material or any hazardous or toxic
materials, as defined under applicable state, federal or local laws, rules,
regulations, or ordinances to be located in or about the Facility, except in
compliance with all applicable laws, rules, regulations, and ordinances.
8. ALTERATIONS: Without the prior approval of Fusion, Licensee shall not
commence any addition or alteration to the Facility, the Equipment Space, that
would in any way result in an increased cost to Fusion, or that might affect the
use of the Facility or other equipment by Fusion or any other licensee. Whenever
Fusion's approval of work is required, Licensee shall deliver a written request
for consent to Fusion, specifying the names and addresses of the desired
contractors or subcontractors, along with a description of the services to be
performed, and the desired dates and times of service. If Fusion does not
respond to Licensee's written notice requesting approval within ten (10)
business days, approval is deemed to have been given. In addition, if approval
of any contractor or subcontractor is required by the terms of an agreement with
a lessor or other party holding a superior interest in the Facility. Fusion
shall also submit the written request to such other party for approval, and
Licensee's use of contractors shall be subject to the landlord's approval as set
forth in the underlying lease.
Licensee shall pay or cause to be paid all costs and charges (a) for work done
by Licensee or caused to be done by Licensee in or about the Facility; (b) for
all materials furnished for or in connection with such work; and (c) for
alterations or additions to the Facility or equipment that require Fusion to
incur costs. Licensee shall indemnify Fusion against and hold Fusion and the
Facility free and clear of and from all mechanics' liens and claims of liens,
and all other liabilities, liens, claims, demands, costs and expenses of any
kind on account of such work done by or on behalf of Licensee. If any such lien
is filed at any time against the Facility, or any part thereof, Licensee shall
cause such lien to be discharged of record within ten (10) days after the filing
thereof, except that if Licensee desires to contest such lien, it will furnish
Fusion, within such ten-day period, security reasonably satisfactory to Fusion
of at least 100% of the amount of the claim, plus estimated costs and interest.
If a final judgment establishing the validity or existence of a lien for any
amount is entered, Licensee shall pay and satisfy the same without delay. If
Licensee fails to pay any charge and related costs and interest, and the amount
so paid, together with reasonable attorneys' fees incurred in connection with
such lien, will be immediately due from Licensee to Fusion. Nothing contained in
this License shall be deemed to constitute a consent or agreement of Fusion to
subject the Facility to liability under any mechanics' or other lien law. If
Licensee receives notice that a lien has been or is about to be filed against
the Facility, or any action affecting title to the Facility has been commenced
on account of work done by or on behalf of, or materials furnished to or for
Licensee, Licensee will immediately give Fusion written notice of such notice.
At least fifteen (15) days before commencement of any work (including but not
limited to any maintenance, repaired, alterations, additions, improvements or
installations) in or to the Facility or the Equipment Space by or for Licensee,
Licensee will give Fusion notice of the proposed work and the names and
addresses of the persons supplying labor and materials for the proposed work.
Fusion shall have the right to post notices of nonresponsibility or similar
notices at the Facility in order to protect the Facility against any such liens.
9. COMPLIANCE WITH LAWS: Licensee shall, at Licensee's sole cost and expense,
comply with all federal, state and local laws, rules, regulations, ordinances
and requirements, whether now in force or hereinafter enacted, relating to
Licensee's use of the Facility and the Equipment Space. Licensee will obtain all
required permits and licenses pertaining to the installation, operation,
maintenance and repair of its equipment in the Facility and the Equipment Space.
10. WAIVER OF LIABILITY: INDEMNIFICATION:
(a) FUSION SHALL NOT BE LIABLE TO LICENSEE, AND LICENSEE HEREBY RELEASES AND
WAIVES ALL CLAIMS AGAINST FUSION, FOR ANY INJURY OR DAMAGE ARISING FROM
INTERRUPTIONS OF SERVICE OR POWER, EVEN IF CAUSED BY THE NEGLIENCE OF FUSION OR
ITS EMPLOYEES, AGENS OR CONTRACTORS. NEITHER PARY SHALL BE LIABLE TO THE OTHER
PARY FOR NAY INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOSS OF PROFITS
OR CONSEQUENTIAL DAMAGES.
LICENSEE EXPRESSLY ACKNOWLEDGES THAT FUSION INTENDS TO ALLOW OTHER LICENSEES TO
INSTALL EQUIPMENT IN THE FACILITY. LICENSEE EXPRESSLY AGREES THAT FUSION SHALL
HAVE NO LIABILITY FOR NAY DAMAGES, COSTS, OR LOSSES INCURRED BY LICENSEE CAUSED
BY SUCH OTHER LICENSEES' ACTS, EQUIPMENT, OR FAILURE TO ACT.
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COLOCATION LICENSE AGREEMENT
FUSION SPECIFICALLY DISCLAIMS ALL EZPRESS AND IMPLIED WARRANTIES RELATING TO THE
FACILITY, THE EQUIPMENT SPACE, AND ANY MAINTENANCE SERVICES, INCLUDING BUT NOT
LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
(b) Licensee agrees to indemnify and hold harmless and defend Fusion, its
employees, officers, directors, contractors, and agents from and against any and
all demands, claims, causes of action, fines, penalties, damages, losses,
liabilities, judgements, and expenses (including without limitation attorneys'
fees and court costs) incurred in connection with or arising from:
(1) The use or occupancy of the Facility and/or Equipment Space by
Licensee or any person claiming under Licensee;
(2) Any activity, work or thing done or permitted by Licensee
in or about the Facility and/or Equipment Space;
(3) Any act, omission, negligence, or willful misconduct of
Licensee or any person claiming under Licensee, or the
employees, agents, contractors, invitees, or visitors of
Licensee;
(4) Any breach, violation, or nonperformance by Licensee or
any person claiming under Licensee, or the employees,
agents, contractors, invitees, or visitors of Licensee of
any term, covenant, or provision of tis License, or any
law, statute, ordinance or governmental requirement of
any kind;
(5) Any injury or damage to the person, property, or business
of Licensee, its employees, agents, contractors,
invitees, visitors, or any other person entering the
Facility and/or the Equipment Space under the express or
implied invitation of Licensee.
If any action or proceeding is brought against Fusion, its employees, officers,
directors, contractors or agents by reason of any such claim, Licensee shall, on
notice from Fusion, defend the claim at Licensee's sole cost and expense with
counsel reasonably satisfactory to Fusion. The obligations of this section shall
survive the expiration or other termination of this License.
12. ASSIGNMENT AND SUBLICENSING: This License may be freely assigned
by Fusion. Licensee shall not sell, assign, pledge, encumber or
otherwise transfer by operation of law or otherwise all or any
part of Licensee's rights or obligations under this License, nor
permit any other person to occupy or use the Facility or the
Equipment Space or any portion thereof, without first obtaining
Fusion's prior written consent, which consent may not be
unreasonably withheld. Licensee shall notify Fusion sixty (60)
days prior to the effective date of any proposed assignment,
advising Fusion of its intention to assign this License.
13. SERVICES PROVIDED BY FUSION: Fusion shall make available the
following services for Licensee's use of the Equipment Space:
(a) HVAC sufficient to maintain an ambient temperature of 50
to 86 degrees F and relative noncondensing humidity.
(b) Fire suppressions system, either sprinkler system or
other system that conforms with local, state, and federal
laws and regulations.
(c) Grounding.
Licensee shall pay to Fusion the costs of labor and materials and other costs
incurred by Fusion to make the services available to Licensee hereunder.
FUSION SHALL HAVE NO DUTY TO MONITOR, MAINTAIN, OR CARE FOR THE EQUIPMENT
INSTALLED BY OR FOR LICENSEE.
14. TERMINATION IN THE EVENT OF CASUALTY OR CONDEMNATION: In the event
of any damage, destruction, or condemnation of the Facility that
renders the Facility or the Equipment Space unusable or
inoperable, Fusion shall have the right to terminate this License
and all of its duties and obligations hereunder by giving written
notice to Licensee within ninty (90) days after such damage,
destruction or condemnation.
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COLOCATION LICENSE AGREEMENT
15. EVENTS OF DEFAULT
(a) The occurrence of any one or more of the following events
shall constitute a default and breach of this License by
Licensee ("Event of Default"):
(1) Licensee's failure to pay when due any recurring
monthly license or service fees, any initial
installation charges, or any other amount, if
any such failure continues for five (5) days
after notice of nonpayment has been givento
Licensee.
(2) Licensee's failure to perform or observe any
other term, covenant or condition of this
License, if the failure continues for thirty
(30) days after notice has been given to
Licensee.
(3) Licensee's abandonment of the Facility and/or
the Equipment Space.
16. SURRENDER OF THE PREMISES: Within fifteen (30) days of expiration
or earlier termination of this License, Licensee shall remove its
equipment from the Facility at Licensee's sole cost and expense.
Licensee shall surrender the Equipment Space in good condition,
reasonable wear and tear excepted. If Licensee fails to remove its
equipment and other personal property from the Facility within
fifteen (30) days after the date of expiration or other
termination, Fusion may remove and store such items at Licensee's
sole cost and expense.
17. FORCE MAJEURE: Should the performance of any act required by this
License, other than the payment of money, be prevented or delayed
by reason of an act of God, strike, lockout, labor troubles,
inability of Fusion to secure materials necessary to provide the
services, restrictive governmental laws or regulations, or any
other cause beyond the control of the party required to perform
the act, the time for performance of the act during the period of
delay will be excused.
18. GOVERNING LAW: This License shall be governed by and construed in
accordance with the laws of the State of New York .
19. INTERPRETATION: Fusion and Licensee hereby expressly agree that
this License constitutes a mere license and not an interest in the
Facility or the Equipment Space.
20. WAIVER: No waiver by Fusion of any default or breach of Licensee's
performance of any term, condition, or covenant of this License
shall be deemed to be a waiver of any subsequent default or breach
by Licensee of the same or any other term, condition, or covenant
contained in this License.
21. NOTICES: All notices required to be given by either party
hereunder shall be in writing and delivered by hand, courier,
overnight delivery service or registered or certified mail, return
receipt requested. Any notice or other communication under this
License shall be deemed given when received or refused and shall
be directed to the following addresses:
(a) If to Fusion: Fusion Telecommunications International, Inc.
Attention: General Counsel
420 Lexington Avenue
Suite 518
New York, New York 10170
Telefax: 1-212-972-7884
(b) if to Licensee: Teleco Group Inc.
30-50 Whitestone Expressway, Suite 101
Flushing, NY 11358
Telefax: 1-718-358-4625
Attn: Sam Tawfik, CEO and Chairman
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<PAGE>
COLOCATION LICENSE AGREEMENT
Either party may change its address for purposes of this section by
notice similarly given.
22. TERMS AND HEADINGS: The section titles of this License shall have
no effect upon the construction or interpretation of any part
hereof.
23. SUCCESSORS: This License shall inure to the benefit of and be
binding on the parties, and their heirs, successors. Assigns, and
legal representatives, but nothing contained in this section shall
be construed to permit an assignment or other transfer except as
specifically provided herein.
24. SEVERABILITY: Any provision of this License which shall prove to
be invalid, void, or illegal shall in no way affect, impair, or
invalidate any other provision hereof and the remaining provisions
hereof shall remain in full force and effect to the greatest
extent permitted by law.
25. RULES AND REGULATIONS: Licensee and its employees, agents,
contractors, and invitees shall abide by and observe all
reasonable rates and regulations as may be promulgated by Fusion
or Fusion's lessor for the maintenance and use of the
26. Facility. Notice of the rules and regulations will be posted or
provided to Licensee. Fusion may periodically amend or supplement
the rules and regulations at its sole discretion.
27. AMENDMENT AND MODIFICATION: This License may be amended, changed
or modified only by an instrument in writing signed by duly
authorized representatives of the parties hereto. Licensee
expressly agrees to execute any amendment to this License which
may be required by a holder of a superior interest in the
Facility, which does not materially and adversely affect
Licensee's rights under this License, within fifteen (30) days of
a written request by Fusion or Fusion may terminate this License
on notice to Licensee.
28. ATTORNEYS' FEES: If either party commences an action against the
other party arising out of or concerning this License, the
prevailing party in such litigation shall be entitled to
reasonable attorneys fees and costs in addition to such other
relief as may be awarded.
29. USE OF NAME: Licensee shall submit to Fusion all news releases,
advertising and other publicity material related to this License
wherein Fusion's name is mentioned or language is used from which
a connection to Fusion's name therein may, in Fusion's judgment,
be inferred or implied. Licensee shall neither publish nor use
such material nor use Fusion's name, without the prior written
consent of Fusion.
30. COUNTERPARTS: This License may be executed in several
counterparts, each of which shall constitute an original but all
of which shall constitute one and the same instrument.
31. ENTIRE AGREEMENT: This License contains all of the agreements of
the parties concerning the Facility and the Equipment Space, and
there are no verbal or other agreements, which modify or affect
this License. This License supersedes any and all prior agreements
made or executed by or on behalf of the parties hereto regarding
the Facility and the Equipment Space.
IN WITNESS WHEREOF, the parties have executed this License as of the
date first above written.
FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC. LICENSEE: TELCO GROUP INC.
By: ___/ Matthew Rosen /______ By: ___/ Sam Tewfik /_______
Print Name: Matthew Rosen Print Name: Sam Tewfik_______
Title: COO Title: CHIEF EXECUTIVE OFFICER
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COLOCATION LICENSE AGREEMENT
EXHIBIT A
FACILITY LOCATION, AND MONTHLY RECURRING SERVICES FEES
1. Serving Switch Location: 75 Broad Street 19th Floor New York, NY
2. Equipment Space: 1,000 Square Feet (RSF), including enclosed office space.
Equipment space is bounded by columns A1, A2, B1, and B2. (see attached
drawing)
3. Initial Term: Two (2) years
4. Monthly Recurring License and Service Fees: Year 1 Year 2
Equipment and Office Space 3,250.00 3,354.17
DC/Power 200 AMP 4,000.00 4,000.00
Electricity 900.00 900.00
Monthly Recurring Charge $8,150.00 $8,254.17
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