Master Services Agreement - Fusion Telecommunications International Inc. and Terremark Worldwide Inc.
MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT is made and entered into as of this 29th day of
May, 2003, by and between FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
("FUSION/AND OR PROVIDER"), a Delaware corporation, with a principal place of
business at 420 Lexington Avenue, Suite 518, New York, NY 10170 and TERREMARK
WORLDWIDE, INC. ("TWW"), a Delaware corporation, with a principal place of
business at 2601 S. Bayshore Dr., Miami, Florida 33133. This Agreement, together
with the relevant Service Order(s) issued and accepted in accordance with this
Agreement and attached Exhibits, establishes the terms and conditions under
which Provider will provide Service (as defined below) to TWW.
1. SERVICE ORDERS
TWW shall send Provider an application for service via e-mail, detailing the
specific service requested. Upon receipt, Provider shall present TWW with a
Service Order for each Service (hereinafter collectively referred to as the
"Service(s)") ordered by TWW. Each Service Order shall be read in conjunction
with the terms of this Agreement and relevant attachment(s). TWW will notify
Provider, within forty-eight (48) hours of Provider's tender of a Service Order,
if said Service Order is accepted by TWW.
2. DELIVERY OF SERVICES
Provider shall deliver the Services in accordance with the terms of this
Agreement, the relevant Service Order and in accordance with the TWW Internet
One/Overall Service Requirements addendum (hereinafter referred to as "OSR"),
attached hereto and incorporated herein as Exhibit "A". Provider shall determine
the most appropriate means of providing the Service, including the method,
technology and route of delivery of the Service to TWW and Provider may vary the
method, technology and route of delivery at any time without notice.
Without releasing it from any of its obligations and/or duties hereunder, but
except as otherwise provided herein, Provider shall be entitled at any time and
from time to time, and without notice, to use Provider's affiliates and/or
subcontractors to perform some or all of such duties and/or obligations.
Provider reserves the right, from time to time, to change the configuration of
the network or the service equipment, provided always that such change does not
materially affect the relevant Service or the OSR. Provider shall use reasonable
endeavors to give TWW a minimum of twenty (20) business days' notice of any such
changes.
Each party shall comply with all applicable laws, codes, administrative or
executive orders, rules and regulations applicable to its performance under this
Agreement.
Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 518
New York, New York 10170
<PAGE>
[LOGO OMITTED]
3. TERM & MINIMUM COMMITMENT
Each Service Order sets out a minimum service term (the "Service Term")
commitment of one (1) year, ("Minimum Commitment").
TWW shall comply with such Minimum Commitment during the period for the
commitment set out in the relevant Service Order ("Commitment Period"). In the
event TWW does not meet the Minimum Commitment, in addition to any other
remedies which Provider may have, TWW shall pay to Provider an amount equal to
the difference between the charges paid to date during the Commitment Period by
TWW for the Service and the charges that should have been paid during the
Commitment Period for that Service if the Minimum Commitment had been made.
TWW may extend the term of this Agreement and any relevant Service Order for
consecutive, dependent periods of one (1) year each, by written notice to
Provider within 30 days provided that, TWW gives Provider a preliminary written
notice of its intent to extend at least 30 days before the relevant Service
Order expires. The preliminary notice does not commit TWW to an extension. If
TWW exercises this option, the extended Agreement and relevant Service Order
shall be considered to include this option clause.
4. CHARGES
Provider shall invoice and TWW shall pay the charges in accordance with this
Agreement and each applicable Service Order. In addition to any non-recurring
Service initiation charges as contained in each relevant Service Order,
recurring charges shall accrue from the relevant Acceptance Date and will be
payable monthly, quarterly or annually in advance as set forth in this Agreement
and the relevant Service Order. Service provided for part of a billing period
will be charged on a pro-rata basis.
Charges for all Provider Services(s) shall be billed and paid in U.S. Dollars.
5. CREDIT
Prior to accepting a Service Order, Provider may carry out a credit check. As a
result of such credit check, Provider may request from TWW a cash deposit or
bank guarantee. The bank guarantee shall be in a form that is approved by
Provider and issued by a bank acceptable to it in an amount not exceeding the
total charges which Provider might reasonably expect TWW to incur during the
Service Term. TWW shall cooperate in providing Provider with any available
financial information to assist Provider with such credit checks.
TWW authorizes Provider and/or its authorized agents to make any and all
inquiries necessary for the purpose of obtaining credit information. TWW shall
indemnify Provider, its shareholders, Board of Directors, officers, employees,
and agents, from any liability resulting from any credit inquiry. TWW will
provide any reasonable security deposit requested from Provider prior to
commencement of Service(s) or as a condition of continued Service(s).
Page 2
<PAGE>
[LOGO OMITTED]
6. PAYMENTS AND BILLING
a. TWW is responsible for timely payment of all charges for Services
furnished to Customer.
b. Payment is due monthly unless otherwise specified in the relevant
Service Order (the "Due Date").
c. All amounts not paid by the Due Date are subject to interest at the rate
of 1.5% per month or the highest rate allowed by law, whichever is lower.
d. Provider must receive written notice of any dispute within ten (10) days
of invoice date, or other period as required by applicable law, or such
invoice shall be deemed correct and binding.
e. TWW agrees to pay all costs of collection, including reasonable
attorneys' fees, incurred by Provider in the collection of any and all
unpaid amounts, breach of contract actions. A fee, as allowed by tariff or
law, may be charged for each check returned for insufficient funds.
f. Charges for Service are exclusive of applicable taxes and regulatory
charges. Applicable taxes and regulatory charges shall be paid by TWW along
with the charges for Service(s) on the Due Date.
g. Upon execution of a Service Order under this Agreement, Provider will
bill TWW for any advanced payments and non-recurring charges, pre-payments
and security deposits required by connecting foreign underlying providers
h. In the event Provider provides third party services on behalf of TWW,
should a voluntary or involuntary bankruptcy petition, liquidation or
winding up order be filed against TWW, Provider shall have the right to
bill and to receive payment from third parties directly for all amounts
due.
7. TAXES
Except as otherwise provided in this section, Provider shall separately state on
each applicable invoice, and TWW shall pay, any sales, use, excise or similar
tax legally imposed on or with respect to the Services furnished hereunder.
Provider shall not invoice TWW for any such tax if, and to the extent that, TWW
(i) submits a properly executed certificate of exemption or direct pay permit;
or (ii) otherwise notifies Provider in writing of its position that such tax
does not apply to some or all of the services furnished hereunder in which case
TWW shall indemnify Provider.
TWW shall protect and indemnify Provider from and against any such tax not
invoiced by Provider, provided that, in the event Provider becomes aware of an
intent to assess or collect such tax, it promptly notifies TWW and permits TWW
to contest such assessment
Page 3
<PAGE>
[LOGO OMITTED]
or collection or, if necessary, contests such assessment or collection on behalf
of TWW; and provided further that Provider provides reasonable assistance to TWW
in any such contest.
8. SERVICE COMMENCEMENT DATE
The Service Commencement Date shall be the Acceptance Date as defined in Exhibit
A.
9. CUSTOMER OBLIGATIONS
TWW shall grant or shall procure the grant to Provider, its agents, affiliates,
and/or subcontractors of such rights of access to each TWW site and shall
provide to Provider such facilities and information as Provider may reasonably
require enabling it to perform its obligations or exercise its rights under this
Agreement.
TWW shall notify Provider of any existing technical or other facilities
including, but not limited to electrical, communication services, water and gas,
which could be damaged during the installation of the Service Equipment and
Provider shall have no liability in respect of any damage or loss arising out of
TWW's failure to comply with its obligations under this Section 9.
10. APPROVALS AND LICENSES. RIGHT TO SUBLICENSE USE
The performance of this Agreement by each Party hereto is contingent upon each
party obtaining and continuing in effect such approvals, consents, governmental
authorizations and permits as may be required or reasonably deemed necessary by
such Party for the performance by it hereunder and as may be satisfactory to it.
Notwithstanding the foregoing, Provider hereby represents and warrants that, as
of the date of this Agreement, Provider has all necessary approvals, consents,
governmental authorizations, licenses and permits for the performance by
Provider under of this Agreement.
TWW may license use of the Service to its customer(s), provided no sublicense
permitted hereunder shall involve any delegation or other transfer of any of
TWW's obligations or liabilities hereunder. Each sublicense of any right to use
the Service shall derive all of its rights solely through TWW and such rights
shall be enforceable solely against TWW. No TWW customer(s) shall become a third
party beneficiary of this Agreement or obtain any right, title or interest in,
to or under this Agreement or the ability to enforce any provision hereof, nor
shall any sublicensee have any rights or claims against the Provider for any
reason whatsoever. The rights of any sublicense of a right to use the Service
shall be subject and subordinate to all the terms of this Agreement and TWW
shall remain primarily liable hereunder for the performance of all the terms of
this Agreement to the same extent as if such the sublicense had not occurred.
Any such sublicense shall prohibit further assignment, transfer or other
disposition of the Service.
Page 4
<PAGE>
[LOGO OMITTED]
11. CONFIDENTIALITY.
The provisions of this Agreement and any non-public information, written or
oral, with respect to this Agreement or which is otherwise disclosed in
connection herewith ("Confidential Information") will be kept confidential and
shall not be disclosed, in whole or in part, to any person other than
Affiliates, officers, directors, employees, agents or representatives of a Party
(collectively, "Representatives") who need to know such Confidential Information
for the purpose of negotiating, executing and implementing this Agreement. Each
Party agrees to inform its Representatives of the non-public nature of the
Confidential Information and to direct such persons to treat such Confidential
Information in accordance with the terms of this Addendum. Nothing herein shall
apply to information that:
(i) is in or comes into the public domain (other than by breach of
this Agreement or of any other duty);
(ii) is or has already been independently generated by the
recipient Party;
(iii) is lawfully received by the recipient Party from a third party
on an unrestricted basis;
(iv) is in the possession of or is known by the recipient Party
prior to the date of this Agreement, to the extent that such
recipient Party is not bound by any existing obligation of
confidentiality in respect of such information; or
(v) is required to be disclosed under any applicable law, rules or
regulation in the countries of the Parties.
On termination of this Agreement for any 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 that it has in its possession. No Party shall make any
public announcement or disclosure with respect to the subject matter of
this Agreement without obtaining the written consent of the other
Parties hereto, which consent shall not be unreasonably withheld.
12. SEVERABILITY, WAIVER AND TERMINATION
In the event that any term or provision of this Agreement shall be declared
invalid, illegal or unenforceable, in any respect, by any court or regulatory
agency of competent jurisdiction, such invalidity, or unenforceability shall not
in any manner affect the validity or enforceability of any other term of
provision of this Agreement.
The waiver by any Party, in whole or in part, of a breach of or a default under
any of the provisions of the Agreement, or the failure, in whole or in part, of
any Party, upon one or more occasions, to enforce any of the provisions of the
Agreement or to exercise any right or privilege hereunder shall not thereafter
be construed as a waiver of any subsequent breach or default or as a waiver of
any other provision, right or privilege hereunder.
Page 5
<PAGE>
[LOGO OMITTED]
Provider may disconnect service in accordance with the applicable tariff(s)
and/or breach of this Agreement and/or in case of breach of, or default under,
any of the provisions under a particular Service Order, disconnect the service
of such particular Service Order; i.e., under court order, for non-payment,
illegal use of service, violation of applicable laws and regulations.
In the event of a material breach by a Party to this Agreement and/or in case of
breach of, or default under, of any of the provisions under a particular Service
Order which material breach is not remedied within five (5) days after receipt
of written notice thereof, then the non-defaulting Party may immediately:
a. In the case of Provider, suspend the Service(s) under the
Agreement and/or in case of breach of, or default under, of
any of the provisions under a Service Order, suspend the
Service of such Service Order until such payment default or
other breaches have been cured (provided however, Provider
shall only be required to give twenty-four (24) hours notice);
b. In the case of TWW, suspend payment of un-accrued charges for
the applicable affected Service Order hereunder until such
default or other breaches have been cured. Notwithstanding
anything contained in this Agreement, TWW reserves the right,
in TWW's sole discretion (1) to terminate this Agreement
and/or (2) in case of breach of, or default under, any of the
provisions under a Service Order, in TWW's sole discretion,
terminate such Service Order, and pursue any and all rights
and legal and/or equitable remedies available to it, at any
time upon five (5) business days after receipt of written
notice by Provider if:
(i) Provider breaches or is unable to perform any of its
obligations under this Agreement and/or under a
Service Order and which (in the case of a breach
capable of being remedied) has not been remedied
within five (5) business days after receipt of
written notice to remedy the same;
(ii) If Provider is not able, after using its best
efforts, to make the Services available to TWW within
fifteen (15) business days of the Service
Commencement Date;
(iii) Notwithstanding the curing of any one or more
breaches by Provider, TWW shall have the right to
terminate this Agreement, and/or a Service Order, for
cause if Provider causes three (3) or more breaches
during the term of the Agreement.
TWW may voluntarily terminate a Service Order prior to the expiration of the
Service Term of that Service, if it pays to Provider the following termination
charges which TWW acknowledges as liquidated damages reflecting a reasonable
measure of actual damages and not penalty: in the event the termination is after
the Acceptance Date but prior to expiration of the Service Term or Commitment
Period, whichever is longer,
Page 6
<PAGE>
[LOGO OMITTED]
TWW shall pay Provider in addition to any outstanding invoices, an amount equal
to 100% of the Charges that would have been paid had the Service been provided
for the duration of the Service Term and/or the Commitment Period, except as
expressly provided in sections 12 (b) (i), 12 (b) (ii) and 12 (b) (iii)
immediately above.
If payment has not been received by the Due Date, for all undisputed charges
(including transmission charges, service charges and monthly fixed charges, if
any) billed to TWW, then Provider may, at its sole discretion and with five (5)
business days prior written notice to TWW, terminate this Agreement in part or
in whole.
The adjudication of bankruptcy of either party under any Federal, state or local
bankruptcy or insolvency act, or the appointment of a receiver or any act or
action constituting a general assignment by a party of its proprieties and
interest for the benefit of its creditors and such event is not discharged
within 30 days of its occurrence shall constitute a material default of this
Agreement.
13. FORCE MAJEURE
Neither Party shall be liable for default if nonperformance is caused by an
occurrence beyond Party's reasonable control (whether, in whole or in part)
including, without limitation, fire, flood, acts of God or the public enemy,
epidemics, quarantine restrictions, strikes, unusually severe weather, and
delays of common carriers or other circumstances or conditions that render it
hazardous for a Party's personnel to travel to or enter onto the affected site;
strikes, lockouts and other labor disturbances; acts or omissions of
governmental authorities, other telecommunications operators(not due to the
fault of the claiming party under this provision) administrators or other
competent authorities; military operations; riots and industry wide government
codes, ordinances, laws, rules, regulations or restrictions that render
performance under this Agreement impossible. If any party is unable to perform
its obligations hereunder to a material extent as a result of a Force Majeure,
the Party affected by such event of Force Majeure shall notify the other Party
in writing as soon as it is reasonably possible after the commencement of any
Force Majeure, setting forth the full particulars in connection therewith.
During the period of any Force Majeure condition, the obligations of the Parties
hereunder, except for the obligation to pay for Services delivered, shall be
suspended. Provided however, TWW shall not be required to make payment in
relation to any Service to the extent that Provider is unable to deliver due to
an event of Force Majeure. Notwithstanding the foregoing, if any party is unable
to perform its obligations hereunder to a material extent as a result of a Force
Majeure for thirty (30) consecutive days, the other party shall be entitled to
terminate this Agreement by written notice without penalty.
14. ASSIGNMENT
This Agreement and all the provisions hereof shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and permitted
assigns; provided that neither this Agreement nor any of the rights, interests
or obligations
Page 7
<PAGE>
[LOGO OMITTED]
hereunder shall be assigned or transferred by a Party hereto without the prior
written consent of the other Party, which shall not be unreasonably withheld or
delayed. Any attempted assignment, transfer or disposal without said prior
written consent shall be void. Notwithstanding the foregoing, each Party shall
be permitted to assign, transfer or otherwise dispose of any of its rights or
obligations hereunder, to any of its Affiliates or successors in interest. Any
assignment, transfer or other disposition by any Party which is in violation of
this Section shall be null, void and of no force and effect.
15. LIABILITY
Order of Precedence: Provider's liability to TWW and to any and all third
parties for any and all causes of action is set forth in Provider's applicable
state and federal tariffs, and these tariffs shall govern in all applicable
cases.
In the event the service is not governed by tariff or other regulatory body, in
no event shall either Party be liable to the other Party,or any third party, 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 or on account of the use or nonuse or the
services.
To the extent not in conflict with an applicable tariff, Provider shall use
reasonable best efforts to provide Services to client, however, Provider makes
no warranty, express or implied, with respect to the transmission services
provided hereunder and expressly disclaims any warranty of merchantability,
description or fitness for any particular purpose or function.
No agent or employee of any other carrier shall be deemed to be such for
Provider.
16. NOTICES
Any change to the name, address and facsimile number may be made at any time by
giving fifteen (15) days prior written notice. Any such notice, demand or other
written communication shall be deemed to have been received, if delivered by
hand, at the time of delivery or, if posted, at the expiration of seven (7) days
after the envelope containing the same shall have been deposited in the post for
such purpose, postage prepaid, or if sent by facsimile, at the date of
transmission, if confirmed receipt is followed by postal notice.
Notices shall be made to the following persons at the following addresses and
facsimile telephone numbers (which may be changed only by properly given
notice):
IF TO TWW: Terremark Worldwide, Inc.
2601 S. Bayshore Dr.
Miami, Florida 33133
ATTN: General Counsel
Fax: (305) 250-4290
Page 8
<PAGE>
[LOGO OMITTED]
IF TO PROVIDER:
Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 518
New York, New York 10170
Attention: Legal Dept
Fax : +1.212.972.7884
17. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of
the State of New York (without giving effect to any conflict of laws principles
under New York State law) and the Parties irrevocably agree to the exclusive
jurisdiction of the trial and appellate courts sitting within the State of New
York.
18. INDEMNIFICATION
TWW agrees to indemnify and hold Provider and its officers, agents and
employees, harmless from and against any claim, loss, damages, injury, and
liability, including reasonable attorneys' fees and costs, however caused,
resulting from or arising out of: a) any third party claim relating to the
Service(s); b) any material breach of this Agreement by TWW c) TWW's violation
of any law or regulation applicable to this Agreement and the related
Service(s); and any taxes or regulatory fees related to the provision or
purchase of the Service(s).
Provider expressly agrees to indemnify and to save TWW, its officers, agents and
employees harmless from and against any claim, loss, damages, injury, and
liability, however caused, resulting from or arising out of a) Provider's
material breach of this Agreement, and b) Provider's actual or alleged direct or
contributory infringement of, or inducement to infringe, any United States or
foreign patent, trademark or copyright, arising out of the performance of this
Agreement, provided Provider is reasonably notified of such claims and
proceedings.
19. RELATIONSHIP OF THE PARTIES
At all times the relationship between the Parties shall be that of independent
contractors, and nothing expressed or implied shall constitute the parties as
partners, joint venturers or co-owners. Neither Party shall have the right to
enter into a binding agreement on behalf
Page 9
<PAGE>
[LOGO OMITTED]
of, or otherwise bind, the other, nor have the right to direct or control the
activities of the other, nor shall one Party act as an agent of the other Party.
20. EXPORT CONTROL.
The Parties acknowledge that to the extent any products, software or technical
information provided under this Agreement are or may be subject to any
applicable export laws and regulations, the Parties agree that they will not
use, distribute, transfer or transmit the products, software or technical
information (even if incorporated into other products) except in compliance with
such export laws and regulations (or licenses or orders issued pursuant
thereto). If reasonably requested by a Party, the other Parties agrees to sign
all necessary export related documents as may be required to comply therewith.
21. ENTIRE AGREEMENT
This Agreement, Service Order(s), and related exhibits, constitute the entire
agreement between the Parties with respect to the subject matter hereof, and
supersedes all prior agreements, understandings or proposals, whether oral or
written, with respect to the subject matter hereof. If any of the provisions of
the Agreement is found by an appropriate arbitral, judicial or regulatory
authority to be void or unenforceable, such provision shall be deemed to be
deleted from this Agreement and the remaining provisions shall constitute in
full force and effect.
22. AMENDMENTS, HEADINGS, COUNTERPARTS
The Agreement and the Service Order(s) may only be altered or added by another
agreement in writing signed by a duly authorized person on behalf of each of the
Parties. The section headings of the Agreement and the Service Orders are for
convenience of reference only and are not intended to restrict, affect or
influence the interpretation or construction of provisions of such section. The
Agreement may be executed in counterparts, each of which when executed and
delivered shall be deemed an original. Such counterparts shall together (as well
as separately) constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties, intending hereby to be legally bound, by their
authorized officers, have executed this Agreement on the date written below.
TWW:
/s/:
Name:
Title:
Date:
Page 10
<PAGE>
[LOGO OMITTED]
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
/s/:
Name:
Title:
Date:
Page 11