Reciprocal Traffic Agreement by jbw10297

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									                         RECIPROCAL SERVICES AGREEMENT

This Reciprocal Services Agreement (this "Agreement") is made this _____ day of _______
2008 (the “Effective Date”), by and between Marnoel Company, LLC (Marnoel) a Delaware
Limited Liability Company, with its principal place of business located at 130 Inverness Plaza Ste.
191 Birmingham, AL 35242
and
________________, Inc., (“Customer”) a ________ Corporation, with its principal place of
business located at _______________________________________________ (“Customer” and,
together with Marnoel, the "Parties").


                                            RECITALS
WHEREAS, the Parties are engaged in the business of providing Services (as defined herein).

                                              TERMS
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and
promises set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree upon the following
terms and conditions:
1:     Obligations of the Parties:
       1.1     Each Party agrees to provide to the other domestic and / or international voice
               services (the “Services”) in accordance with the terms and conditions of this
               Agreement and at the rates set forth in Exhibit A attached hereto.
       1.2     The Party purchasing such Services from the other Party hereby agrees to pay for
               such Services according to the terms and conditions set forth in this Agreement.
2:     Term:
       2.1     Unless earlier terminated in accordance with Section 2.2 or 2.3 herein, the term of
               this Agreement shall commence on the Effective Date and shall continue in full
               force and effect for one year thereafter (the “Initial Term”). Upon the expiration
               of the Initial Term, this Agreement shall automatically renew on a month-to-
               month basis until either Party sends fourteen (14) days’ prior written notice to the
               other party of its intent to terminate this Agreement (the “Renewal Term” and,
               together with the Initial Term, the “Term”).
       2.2     During the Initial Term, either Party may terminate this Agreement upon
               providing fourteen (14) days’ prior written notice to the other Party of its intent to
               terminate this Agreement.
       2.3     During the Term, either Party may terminate this Agreement and disconnect the
               Services provided hereunder upon providing one (1) days’ prior written notice to
               the other Party in the event that the other Party breaches any provision of this
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                Agreement.
       2.4      The Parties further agree that, in the event of termination in accordance with
                either Section 2.1, 2.2 or 2.3 herein, each Party may recover from the other Party
                all sums it is owed at the time of termination.
3:     Rates:
       3.1      Rates. The rates and charges for Services provided in accordance with this
                Agreement are set forth on the Rate Schedule attached hereto as Exhibit A (the
                “Rate Schedule”). The Parties understand and agree that either Party may change
                any or all of the rates to any destinations reflected on the Rate Schedule upon five
                (5) days’ prior written notice to the other Party. All rate decreases shall come into
                effect immediately. Unless otherwise agreed to in writing by the Parties, the
                billing method shall be as follows:
       3.2      International Termination: a minimum of one (1) second per call with one (1)
                second increments.
       3.3      Mexico Termination: a minimum of sixty (60) seconds per call with sixty (60)
                second increments.
       3.4      Domestic U.S. Termination: a minimum of six (6) seconds per call with six (6)
                second increments.
       3.5      800 U.S. Termination: a minimum of six (6) seconds per call with six (6) second
                increments.
       3.6      Time Zone: The parties agree that the time(s) or time zone(s) used for identifying
                effective times and dates for changes contained in any Written Notice, such as all
                peak, off peak traffic, and invoicing and other time sensitive matters for each
                Party will be: New York Time.

4:     Billing and Payment Terms:
       4.1      Each Party will make payment to the other within three (3) business days after
                receipt of the invoice. Invoices will be submitted every Monday for services
                provided the previous week and any unused prepayment will be applied to the
                following week. Each invoice shall include the following: (i) country/destination
                (ii) completed calls per country/destination (iii) completed minutes per
                country/destination (iv) rate charged per minute per country/destination (v) total
                amount due per country/destination. Each Party will provide the other Party with
                a monthly statement (for reconciliation purposes only) with evidence of actual
                monthly usage (to include Call Detail Records (“CDRs”) upon request).
       4.2      Each Party shall prepay before services are offered. If a Party fails to pay such
                amount to the other Party by the Due Date, then such amount shall be considered
                past due (the “Past Due Amounts”). Interest will be charged on such Past Due
                Amounts commencing on the first business day after the Due Date and continuing
                thereafter until paid at a rate equal to 1.5% per month.
       4.3      If either Party, in good faith, disputes any amounts set forth on the invoices, such
                Party shall, within thirty (30) days of receipt of the invoice, submit to the other
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               Party written documentation that includes the CDRs analysis of various calls
               identifying and substantiating the disputed amounts. If a Party fails to dispute an
               amount within sixty (60) days of receipt of the invoice, then the Parties hereby
               agree that an irrefutable presumption of the correctness of such amount is created.
                If the Parties, in good faith, cannot resolve the dispute within a reasonable period
               of time, then the dispute shall be settled by arbitration pursuant to Section 13.
               Upon resolution of the dispute, either through negotiations, discussion or by way
               of arbitration, the Party owing such amount (if any), shall pay such amount within
               ten (10) business days of such resolution. If the good faith disputed amount
               exceeds 10% of the total invoice, the invoicing party has the right to suspend
               services immediately until the dispute is resolved and payment is made.
       4.4     Each Party shall provide the other Party with a valid tax exemption form to
               exempt such Party, under applicable law, from taxes that would otherwise be paid
               by such Party. Each Party shall invoice the other Party for taxes (other than
               income taxes payable by MARNOEL) that are not covered by the tax exemption
               certificate properly filed with the invoicing Party.
       4.5     Each Party shall be solely responsible for billing and collecting from its
               customers. Under no circumstances shall either Party be responsible for
               fraudulent, unbillable calls, credits given by the other Party or bad debts incurred
               by the other Party.
       4.6     Payments to MARNOEL shall be made via wire transfer in immediately available
               funds to:

               Receiving Bank:                        Regions Bank
                                                      417 N. 20th Street
                                                      Birmingham, Alabama 35203

               Receiving ABA Routing #:               062000019
               Account Name:                          Marnoel Company, LLC
                                                      Birmingham, AL 35242
               Account #:                             2900795933
       4.7     Payments to Customer shall be made via wire transfer in immediately available
               funds to:
               Beneficiary:                 ________________________________
               Bank Account Number:         ________________________________
               ABA #:                       ___________________________
               Bank Name:                   ___________________________
               Bank Address:                ___________________________
               Bank SWIFT Code:             ___________________________
       4.8     Either party reserves the right to offset for undisputed services provided to the
               other party which are due and not paid against any amounts owed to the other
               party. The debtor party will pay the net difference as per the term specified above
               with proper notification to the other party.



CONFIDENTIAL                                  Page 3 of 8                   Initial: _______ / _______
       4.9     Provision of Service is contingent upon credit approval by a PARTY to the other.
               Upon request by either PARTY, a PARTY shall provide the other with current
               financial circumstances. If a PARTY's financial circumstance or payment history
               is or becomes unacceptable to the other, then the other PARTY may require a
               deposit, irrevocable letter of credit or other form of security. If such security is not
               provided within ten (10) days following a Party’s request, then the requesting
               Party shall have the right to terminate this Agreement and/or terminate or suspend
               any Service to the other Party immediately and without liability or further notice.
5:     Confidentiality:
               During the Term and for one (1) year thereafter, neither Party shall disclose any
               terms of this Agreement, including pricing, or Confidential Information (as
               defined herein) of the other Party. For purposes of this Agreement, the term
               “Confidential Information" shall mean information in written or other tangible
               form specifically labeled as such when disclosed by a Party. Confidential
               Information transmitted orally shall be identified as such at the time of its
               disclosure. Confidential Information shall remain the property of the disclosing
               Party. A Party receiving Confidential Information shall: (i) use or reproduce such
               information only when necessary to perform its obligations under this Agreement;
               (ii) provide at least the same care to avoid disclosure or unauthorized use of such
               information as it provides to protect its own Confidential Information; (iii) limit
               access to such information to its employees or agents who need such information
               to perform the obligations under this Agreement; and (iv) return or destroy all
               such information, including copies, after the need for it has expired, upon request
               of the disclosing Party, or upon termination of this Agreement. Notwithstanding
               anything to the contrary contained herein, a Party shall be allowed to disclose
               Confidential Information pursuant to judicial or governmental order or if
               otherwise required to do so by law.
6:     Relationship to Parties:
               Neither this Agreement nor the provision of Services hereunder creates a joint
               venture, partnership or agency between Marnoel and Customer.
7:     Use of Name and Marks:
               This Agreement confers no right upon either Party to use the name, service marks,
               trademarks, copyrights or patents of the other Party except as expressly provided
               herein. Neither Party shall take any action that would compromise the name,
               service marks, trademarks, copyrights or patents of the other Party.
8:     Each Parties Responsibilities:
               Each Party hereby agrees to comply with the other Party’s network interface
               procedures, and each Party hereby agrees to promptly provide the other Party with
               such network interface procedures. Unless the Parties otherwise agree, each Party
               hereby agrees to pay its own costs and expenses associated with the provisioning
               of any of its facilities.




CONFIDENTIAL                                   Page 4 of 8                    Initial: _______ / _______
9:     Service Activation:
               Each Party shall use reasonable efforts to provide Services within five (5) days of
               the Effective Date.
10:    Indemnification:
               Each Party (as "Indemnitor") shall indemnify, defend and hold harmless the other
               Party (as "Indemnitee") from and against any and all liabilities, costs, damages,
               fines, assessments, penalties and expenses (including reasonable attorney's fees)
               resulting from a breach of any provision in this Agreement by Indemnitor, its
               employees or agents, arising out of the Indemnitor's performance hereunder.
               Each Party shall indemnify, defend and hold the other Party harmless from and
               against any and all liabilities, costs and damages (including reasonable attorneys’
               fees) resulting from any claim (including, but not limited to, any claim arising out
               of libel, slander, or patent or trademark infringement) arising from the
               combination or use of Services with services or facilities provided by such Party
               or such Party’s marketing, sales or promotional activities.
11:    Limitation of Liability:
               IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
               PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
               OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS
               OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS, CLIENTS OR
               GOODWILL ARISING IN ANY MANNER FROM THIS AGREEMENT AND
               THE PERFORMANCE OR NON-PERFORMANCE OF BUSINESS
               HEREUNDER.
               THE LIABILITY OF EITHER PARTY WITH RESPECT TO THE
               INSTALLATION (INCLUDING DELAYS THEREOF), PROVISION,
               TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR
               RESTORATION, OF ANY SERVICE OR FACILITIES OFFERED UNDER
               THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE
               CHARGE APPLICABLE UNDER THIS AGREEMENT TO THE PERIOD
               DURING WHICH SERVICES WERE AFFECTED. FOR THOSE SERVICES
               WITH MONTHLY RECURRING CHARGES, THE LIABILITY OF EITHER
               PARTY IS LIMITED TO AN AMOUNT EQUAL TO THE PROPORTIONATE
               MONTHLY RECURRING CHARGES FOR THE PERIOD DURING WHICH
               SERVICE WAS AFFECTED.
12:    Warranties:
               EACH PARTY SHALL USE REASONABLE EFFORTS UNDER THE
               CIRCUMSTANCES TO MAINTAIN ITS OVERALL NETWORK QUALITY.
               THE QUALITY OF SERVICES PROVIDED HEREUNDER SHALL BE
               CONSISTENT WITH OTHER COMMON CARRIER INDUSTRY
               STANDARDS, GOVERNMENT REGULATIONS AND SOUND BUSINESS
               PRACTICES.




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13:    Arbitration:
               Any dispute arising out of or relating to this Agreement shall be finally settled by
               arbitration in accordance with the rules of the American Arbitration Association.
               The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C.
               Sec. I, et. seq., and judgment upon the award rendered by the arbitrator(s) may be
               entered by any court with jurisdiction. The arbitration shall be held in Alabama.
14:    Force Majeure:
               Neither Party shall be liable for any delay or failure in performance of any part of
               this Agreement, other than for any delay or failure in an obligation to pay money,
               to the extent such delay or failure is caused by fire, flood, explosion, accident,
               war, strike, embargo, governmental requirement, civil or military authority, Act of
               God, inability to secure materials or labor or any other causes beyond their
               reasonable control (each a “Force Majeure Event”). Any such delay or failure
               shall suspend this Agreement until the Force Majeure Event ceases and the Term
               shall be extended by the length of such suspension.
15:    Notices:
               Notices, requests or other communications (excluding invoices) hereunder shall
               be in writing. If mailed, notices shall be sent by certified mail return receipt
               requested or by overnight carrier and, if by fax, then notices shall be sent with
               acknowledgement from the receiving Party.
If to MARNOEL:
               Marnoel Company, LLC. (“MARNOEL”)
               130 Inverness suite 191 suite 191
               Birmingham, AL 35242
               Attention: Contracts Manager
               Tel: (205) 441-8300
               Fax: (205) 995-8947
If to Customer:




16:    Assignment:
               Neither Party shall assign this Agreement or any right or obligation hereunder to
               any other entity without the prior written consent of the other Party, which
               consent shall not be unreasonably withheld.
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17:    Rules of Construction:
               No rule of construction requiring interpretation against the draftsman shall apply
               in the interpretation of this Agreement.


18:    Entire Agreement:
               This Agreement, together with any exhibits attached hereto, represents the entire
               agreement of the Parties with respect to the subject matter hereof and supersedes
               all other agreements (written or oral) between the Parties relating to the Services.
19:    Modification of Agreement:
               This Agreement, including any exhibits attached hereto, may be amended,
               modified, or supplemented only by a separate written document executed by
               authorized representatives of both Parties with the exception of rate modifications
               in accordance with Section 3.0
20:    Waiver of Terms:
               No term or provision herein shall be waived, and no breach or default excused,
               unless such waiver or consent is in writing and signed by the Party to which it is
               attributed. No consent by a Party to, or waiver of, a breach or default by the
               other, whether express or implied shall constitute a consent to, or waiver of, any
               subsequent breach or default.
21:    Partial Invalidity:
               If any provision of this Agreement shall be invalid or unenforceable, such
               invalidity or unenforceability shall not invalidate or render the Agreement
               unenforceable, but rather the Agreement shall be construed as if not containing
               the invalid or unenforceable provision. However, if such provision is an essential
               element of this Agreement, the Parties shall promptly attempt to negotiate a
               substitute therefore.
22:    Cumulative Remedies:
               Except as otherwise provide herein, the remedies provided for in this Agreement
               are in addition to any other remedies available at law or in equity.

23:    Governing Law:
               This Agreement shall be governed and construed in accordance with the laws of
               the State of Alabama, and the Parties irrevocably agree to the exclusive
               jurisdiction of the courts of the State of Alabama.




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IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of
the Effective Date.

Marnoel Company, LLC., (“MARNOEL”)                     ________________________________
By:                                              By: _____________________________
Name: Andre McFadden                             Name:
Title: CEO                                       Title:
Date: _______________                            Date: _______________




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