TERM AGREEMENT FOR THE
PROCUREMENT OF NETWORK
AMERICA TELECOMMUNICATIONS SERVICES
Agreement constitutes the terms and conditions governing the relationship
between Heartland Telecom, Inc. d.ba Network America, Inc. hereinafter
(“Company”), with offices at 1029 13th Street Bedford, IN
47421, on its own behalf and the ENROLLING HOTEL
interexchange telecommunications services.
TERM. The initial term
of this Agreement is for a period of 1
month beginning on the later of a) the date of service initiation, or b) the
Effective Date as outlined on page 2, and ending 1 month thereafter
("Initial Term"). This
Agreement shall be automatically renewed for additional one (1) month terms
unless either party gives at least sixty (60) days written notice of
termination prior to the termination date.
SERVICES PROVIDED Company,
when and where permitted by applicable regulations, shall provide the services
described below for Customers telephone lines hereinafter (ANIs) only in
accordance with the terms and conditions set forth herein, and in applicable
tariffs. Company shall be the exclusive provider of the services described in
this Agreement to each and every ANI covered by this Agreement. ANIs covered
by this agreement include all ANIs submitted by Customer via fax, mail, paper
and/or electronic media.
Services and Commissions
services under this agreement shall be provided at the usage rates, operator
service charges, and aggregator surcharges to be assessed on operator service
calls (as permitted by applicable regulations and tariffs) and at the
discretion of Company. Subject to
the terms and conditions set forth herein, and under Company's vendor
agreements, Customer will receive from Company:
A monthly commission in an amount equal to the number of completed
international operator services calls multiplied by $2.00 USD
No commission shall be due on calls handled by Company after any
termination or expiration of this Agreement.
REPRESENTATIONS AND WARRANTIES. Customer
makes the following representations and warranties:
Customer shall make all necessary
programming arrangements to send all calls from the ANIs covered by this Agreement to Company network for the services described in Section 2 above.
B. The person executing this Agreement has the full legal right, power and authority to bind
to the terms and conditions hereof.
C. It is the owner or operator, or agent (with a valid Letter of Agency) of the owner or operator of the ANIs covered by this Agreement and is authorized to manage telephone operations of all the ANIs covered by this Agreement.
COMPLIANCE WITH LAWS
A. Each party agrees to comply with all applicable federal, state and local laws, rules and regulations and orders, including but not limited to any FCC or state regulatory order relating to operator services.
If either party is unable to secure the material benefits of this
Agreement at any time during the term hereof due to any ruling, pronouncement,
regulation or order enacted or mandated by, the FCC, any state public utility
commission, any other regulatory authority, any court of competent
jurisdiction or any state legislature, then the affected party may terminate
this agreement upon ninety (90) days written notice to the other party without
liability, provided, however, that the parties shall comply with their
obligations hereunder up to the date of termination.
C. Customer will be
responsible for all fines levied by the FCC or by any federal, state, or local
regulatory agency against Company and its vendors which are a result of the
Customers marketing or other business activities, including but not limited to
"slamming" (the unauthorized conversion of long distance carriers).
Customer shall indemnify, defend, and hold Company, its officers,
affiliates and vendors harmless against any loss, claim, cost, injury, expense
or liability, including reasonable attorney's fees, resulting from (a) any
breach of the warranties set forth herein, and (b) any default, breach or
failure to perform under this Agreement, and (c) any claim by any third party
for injury to persons or property arising out of Customer's operations of the
location, the ANIs and any associated property and equipment.
LIMITATION OF LIABILITY Company
will make payment of commissions due under this agreement pursuant to the
terms of, and contingent upon the subsistence of Company's agreement with its
network providers and vendors. Company and its vendors shall not be liable
for any indirect, special, incidental, consequential or punitive loss or
damage of any kind, including lost profits or lost commissions on lost sales
/commissions (whether or not Company has been advised of the possibility of
such loss or damage), arising from or relating to this Agreement, the conduct
of business contemplated herein, or by reason of any act or omission in its
OTHER TERMS AND CONDITIONS.
Additional terms and conditions relating to services provided to
Customer are contained in Company’s or its vendor's applicable tariffs. All
other standard Company methods, procedures and policies will apply to the
services provided under this Agreement.
The validity of this Agreement, the construction and enforcement of its
terms, and the interpretation of the rights and duties of the parties shall be
governed by the laws of the State of Indiana.
This Agreement and any information concerning its terms and conditions
are the confidential and proprietary information of Company and may not be
disclosed to any third party without the written consent of Company, except as
may be required by legal process.
This Agreement shall only be modified by written amendment, executed by
duly authorized officers of Customer and Company.
This Agreement shall not be assigned by Customer without the written
consent of Company. This
Agreement shall be binding on the parties and their respective legal
successors and permitted assigns.
Customer agrees not to use the name, service marks, trademarks or trade
secrets of Company and its vendors or any of its affiliates for any purpose
without prior written consent of the other party.
All notices, requests or other communications arising out of disputes
hereunder shall be in writing to the addresses of the parties shown below the
parties’ signature at the end of the Agreement.
Customer shall make every effort to assist in controlling fraudulent
calls placed from its properties. If
fraudulent calls continue after written notification to Customer, Company may
block calls of the type identified as the source of the fraud.
Company will control and own the rights to, as well as be the
responsible organization for, all access types used under this agreement,
including but not limited to all toll free numbers used in conjunction with
originating calls from customers locations. In addition, the customer assigns
all said rights to Company for any existing access numbers "ported"
to Company or its vendors in conjunction with this agreement.
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 will be governed by the United States
Arbitration Act, 9 U.S.C. Sec. 1 et. seq., and judgment upon the award
rendered by the arbitrator(s) may be entered by any court with jurisdiction.
The arbitration will be held in the Bloomington, IN.
In no event shall either party be liable to the
is due to causes beyond the reasonable control of said party, including, but
not limited to, acts of God or of the public enemy, acts or the failure to act
of local exchange carriers, other vendors or the other party, earthquakes,
hurricanes, fiber cuts, switch failures, customer premises equipment
performance, tornadoes, acts of government in its sovereign capacity, fires,
floods, epidemics, quarantine restrictions, or strikes and freight embargoes
(Force Majeure Conditions).
Company reserves the right to make rate and surcharge changes at its
discretion. Company also reserves the right to make periodic changes in
commissions as deemed necessary due to (but not limited to) economic
conditions, network cost and unforeseeable cost of doing business.
M. Customer agrees not use information gained from its relationship with Company to circumvent Company in its business relationship with its suppliers, vendors, employees and carriers during the term of this agreement and for a period of one year after the contract termination.
This Agreement shall constitute the entire understanding between the
parties and supersedes all prior proposals, agreements, understandings,
negotiations, whether written or oral between the parties with respect to the
subject matter hereof.