ADVISE S.r.l.is an Italian corporation with its office registered at Viale Luca Gaurico 9/11 – 00143 Roma Italy (“ADVISE”) and registration number IT02333430466
1.PROVISION OF SERVICES
1.1 Purchase and Sale of Services ADVISE and Company (the “Party”, respectively, or “Parties”) each agree to purchase and provide wholesale telecommunication services (the “Services”) at the rates set forth in the attached exhibit(s) (the “Exhibits”) incorporated herein by reference and upon the terms more fully described herein. Each Party is responsible for delivering its calls or other enhanced services to a mutual agreed interconnect site(s) at its own expense. Each Party will interconnect with the other at the mutual agreed interconnect site(s) with capacity mutually determined by the Parties. All rates set forth in the Exhibits are for services offered from the designated interconnect site(s) set forth therein, and include all the costs to terminate the calls or other services at their destination, unless otherwise stipulated or specified. The provision of Services by either Party is subject to the reasonable commercial availability of the necessary telecommunications facilities to the mutual agreed interconnect sites.
1.2 Rates International rates are determined on a per country and or city specific basis and all rates are as set forth in the Exhibits attached hereto. International rates are shown in terms of full minutes and calls are billed in one (1) second increments after the initial one (1) second call duration with the exception of calls to Mexico which are billed in sixty (60) second increments with minimum call duration of sixty (60) seconds and calls to the USA which are billed in six (6) second increments with minimum call duration of six (6) seconds. Availability of Services is dependent upon the availability of facilities within each country. Each Party may offer rate decreases effective immediately upon written notice to the other Party. Each Party reserves the right to increase its rates and charges at any time upon seven (7) days prior written notice. Each Party shall issue rate amendments via electronic mail. Rate notifications shall be deemed received upon either Party’s receipt of a transmission confirmation. Notwithstanding anything to the contrary, if a Party’s email address is found inoperable, the other Party will make an effort to alert it about the issue immediately. The rates shall be deemed “accepted” by a Party with its first use of the Services after the notice period. Each Party shall promptly notify the other Party, in writing, of any changes to its rate contact information.
1.3 Destination Code Changes
Prior to rendering Services, each Party will provide the other with a complete listing of all destination codes including without limitation country, city and cellular codes. Each Party reserves the right to change any particular code upon seven (7) days prior written notice to the other Party. In the event of a change in code(s), the notifying Party must send, by electronic mail documentation to the other Party indicating the code change only for the relevant destination(s). If the Party sends a complete listing of all codes for all destinations, then such Party must also submit a notice along with such listing clearly indicating which particular code(s) were amended within the listing. It is hereby acknowledged and agreed between the Parties that each Party shall rely solely upon the accuracy of the notices to determine code changes and only such notices sent in accordance with the terms of this paragraph shall be considered valid. If the procedures set forth herein are not adhered to, the receiving Party will have no obligation to abide by the amended code(s) and such amendment will not be enforceable against such Party.
Upon receipt of a notice regarding a change in a code, the receiving Party must acknowledge receipt of the code change by responding via electronic email to other party the notice and returning it to the other Party. If a Party fails to acknowledge receipt of the code change notice as set forth herein, the other Party reserves the right to suspend Services to the destination(s) subject to the code change. Any communications sent to either Party shall be sent via confirmed electronic email to the number listed below for rate change notices.
It is expressly understood by the Parties that, in the event of a conflict between the rates set forth in the Exhibits and any tariffs filed by either Party, the rates attached hereto shall prevail. Notwithstanding anything to the contrary, each Party shall provide written notice to the other Party in advance of any filing, enforcement or change of any tariff that affects the rates and/or terms and conditions relating to the provision of Services hereunder. The Party so affected reserves the right to terminate this Agreement or the affected portion upon receipt of such notice and shall not be responsible for compliance with such tariff(s) if not duly notified as set forth herein.
1.5 System Maintenance
Each Party will ensure that all systems utilized hereunder will be maintained in accordance with industry standards. In the event that system maintenance requires the interruption of Service, to the extent possible, each Party shall notify the other reasonably in advance of such interruption in Service and each Party shall use commercially reasonable efforts to repair its own system and rectify the problem within a reasonable time period.
1.6 Resale of Services
All Services provided under this Agreement are provided for resale to Company's and/or Advise’s customers, end users or subscribers. Each Party is responsible for billing and collection from its customers, end users and subscribers. Each Party is responsible for obtaining and maintaining all licenses, approvals and other authorizations necessary or appropriate for the resale of Services to its customers, end users or subscribers.
1.7 Traffic Forecast
Upon reasonable request, each Party will supply the other with a forecast of traffic to be carried over the other Party’s network at the time of interconnection and will provide updated information on a quarterly basis. Neither Party shall have the obligation to route traffic to the other Party nor shall any forecast be binding on the Party providing such forecast.
1.8 General Network
Interconnection Charges Each Party will be responsible for the normal and customary charges required to interconnect with the other Party’s network as follows:
1.8.1 Transport To Mutual Interconnect Site (s) – Each Party is responsible for ordering and paying all expenses, non-recurring, recurring, or otherwise associated with the transport circuit and cross connections (if applicable) into the mutual interconnect site(s).
1.8.2 Miscellaneous Charges – Should either Party desire that service be provided in a non-standard manner (e.g., accelerated installation), the providing Party will pass through to the other Party the charges assessed to it by any third party or vendor.
1.9 Suspension of Services
Each Party reserves the right to suspend or terminate the delivery of all or any part of the Services provided hereunder upon twenty-four (24) hours advance notice, if the other Party engages in activities that, in each Party’s sole discretion, may cause disruption or damage to its network or facilities, or immediately upon written notice if either Party detects any fraudulent use of the Services. In any case, each Party shall provide written confirmation of such suspension and/or termination within forty-eight (48) hours thereafter.
2. PAYMENT TERMS
Each Party invoices the other Party on a quarterly basis (every 15 days of each month) (the "Billing Period"). The invoices will be issued for all charges relating to the Services every 15 days after the billing period. All the amounts indicated on each invoice must be offset, as shown below, and the net balance will be due and payable after 15 days (15/15) days after receipt of the invoice date (the "expiration") (15 net 15). As the parties in a reciprocal exchange relationship agree that only the party that has a payoff difference is required to pay is required to pay only the remaining value / share after the exchange of the service. If the payment is not made in full by the expiry date (except for amounts subject to a dispute in good faith and properly detained in accordance with the next clause 2.4), the billing party has the right to suspend or interrupt delivery of everything or any part of the Services provided below with twenty four (24) hours notice or request until the payment, including applicable interest, is fully paid (on which the Services will be immediately reactivated). Each Party is required to invoice the other party for the services used within 60 days. All invoices are expressed in EUR. Each Party will be responsible for all transaction costs evaluated by or on behalf of its own bank.
All Services under this Agreement are being provided exclusive of any applicable taxes, duties, and/or charges imposed by any governmental authority. Such applicable taxes, duties, or and/or charges imposed upon either Party shall be paid directly to the proper governmental authority by each Party.
2.3 Disputed Charges
All disputes will be handled in accordance with clause 5 below. All amounts must be paid in full by the Due Date unless a Party elects to withhold a disputed amount. If either Party, in good faith, disputes the amount or appropriateness of any charge included in an invoice from the other, the disputing Party must notify the billing Party in writing of the disputed charge within thirty (30) days of the receipt of the invoice and provide the following documentation reasonably required to resolve the dispute. Minute Dispute – The disputing Party must provide the billing Party with a hard copy of the type of minute dispute being issued. All minute disputes shall be in the form of a flat text file and must be accompanied by CDR from the billing Party's system supporting the alleged erroneous calls or minute duration variances. Rate/Code Dispute – The disputing Party must provide documentation identifying the time period, appropriate rate/code, total minutes and amount in dispute for each country and documentation detailing the rate agreed upon. For code disputes, CDR is required to be furnished by both Parties.
Failure to contest a charge within thirty (30) days of the receipt of the invoice will create an irrefutable presumption of the correctness of the charge, absent manifest error, and that Party shall have waived its right to dispute that invoice.
2.4 Late Fees
Any payments not received by the Due Date will bear interest at a rate of half a percent (0.5%) per month or the maximum rate permitted by law, whichever is less, from the Due Date until paid in full. Any payments received that are less than the total amount due will be applied first to interest and collection fees, then the oldest invoice(s) outstanding.
3.TERM AND TERMINATION
This Agreement will commence on the date first written above and will continue for a period of one (1) year (the “Initial Term”). This Agreement shall automatically renew on a month-to-month basis unless terminated by either Party upon thirty (30) days written notice prior to the expiration of the Initial Term or any subsequent renewal term.
Either Party reserves the right to suspend any portion of the Services or terminate this Agreement upon the occurrence of any of the following events:
3.2.1 By either Party upon a material breach of this written Agreement by the other Party and the breaching Party fails to cure the breach within thirty 30) calendar days after written notice of the breach from the non-breaching Party (other than the payment of amounts due hereunder which terms are set forth in clause 3.2.2 below).
3.2.2 By either Party upon a failure by the other Party to pay any amounts due under this Agreement by the Due Date (except for amounts subject to a bona fide dispute and properly withheld) upon five (5) business days written notice of nonpayment and failure to pay within the five (5) business days. However, upon payment of the amounts due, the injured Party will resume the Services immediately.
3.2.3 By either Party if the other Party suffers any adverse financial change or takes or suffers any action as a result of its indebtedness, including without limitation an action in bankruptcy, an assignment for the benefit of creditors, the appointment of a receiver or trustee or the liquidation of all or substantially all of its assets.
3.2.4 By either Party if either Party is prohibited by any governmental or other legal authority with jurisdiction over the Parties from furnishing the Services hereunder or if any material rate or term contained herein is substantially changed by an order of the highest court of competent jurisdiction to which the matter is appealed, the FCC or any other federal, state or local government authority.
3.2.5 By either Party upon the occurrence of any event or the passage or adoption of any law, rule or regulation that in the reasonable judgment of the Parties will make it materially more expensive or difficult to provide the Services under this Agreement, upon thirty (30) days' prior written notice of such determination by either Party.
3.2.6 By either Party upon an occurrence of an event of force majeure that continues for a period of thirty (30) days or more.
3.3 Consequences of Expiration or Termination
Upon the termination of this Agreement for any reason contained herein, either Party will be entitled to immediately cease providing Services to the other. All amounts due to either Party will become due and payable in accordance with the provisions of clause 2 of this Agreement upon such termination, and the provisions of clause 2.5 regarding late charges will continue to apply. Notwithstanding the expiration or termination of this Agreement for any reason, the provisions that, by their nature survive termination, will continue to apply.
4. LIABILITY AND INDEMNIFICATION
4.1 Force Majeure
Neither Party shall be responsible nor liable for any damages, whether direct, indirect, consequential, incidental, foreseeable or unforeseeable, arising out of, in connection with or relating to any matter occasioned by or due to fire, flood, water, the elements, acts of God, war and threat of imminent war, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond either Party’s reasonable control. Both Parties shall use commercially reasonable efforts to mitigate or eliminate any adverse effect such event of force majeure may have on its ability to perform its obligations hereunder.
4.2 Limitation of Liability
In no event shall either Party be liable to the other or to that Party’s customers or any third party in any respect for any indirect, incidental, consequential, exemplary, punitive, reliance or special damages, or for any loss of revenue, profits, use, data, goodwill or business opportunities of any kind or nature whatsoever, arising in any manner from this Agreement and the performance or non-performance of any obligations hereunder. Regardless of whether any claim is based in contract, tort or other legal theory, each Party’s liability under or in connection with this Agreement shall be limited to the pro-rata amount payable under the terms of this Agreement relating to the affected Services, not to exceed the amount payable for (i) the one month period immediately preceding any claim in respect of any one cause of action or a series of causes of action (connected or unconnected); or (ii) Five thousaund (Eur 5.000,00) euro, whichever is less. Neither Party shall be liable for any damages, whether direct or indirect, caused by services or equipment that is not furnished or managed solely by such Party. The Parties acknowledge that the limitations on liability set out in this clause have been negotiated between the Parties and are regarded by the Parties as being reasonable in all circumstances.
4.3 No Warranty
Except as specifically set forth herein, the Parties make no warranty to each other or any other person or entity, whether express or implied or statutory, as to the description, quality, merchantability, non-infringement, completeness or fitness for a particular use or purpose of any of the Services provided under this Agreement, or as to any other matter, all such warranties hereby being expressly excluded and disclaimed.
4.4 Fraudulent Calls
The Parties shall not withhold any payment due to each other on the basis that fraudulent calls comprised a portion of the traffic volume.
Each Party (for purposes of this paragraph "Indemnifying Party") shall indemnify and hold harmless the other and all of their officers, agents, directors, shareholders, subcontractors, subsidiaries, employees and other affiliates (collectively “Indemnified Party”) from and against any claim, cost, damage, demand, liability, loss, penalty, proceeding or reasonable attorney’s fees imposed upon the Indemnified Party by reason of any claims or damages arising out of or relating to (i) the Indemnifying Party’s or its affiliates own customers, end users or subscribers use of the Services; (ii) damages to property or bodily injuries, including death, as a result of an intentional or negligent act or omission by the Indemnifying Party or any of its affiliates; and (iii) any fraudulent use of the Service by Company or its end users. The Indemnifying Party will not settle any claims, demands, suits, proceedings or actions without the Indemnified Party's prior written consent, which consent shall not be unreasonably withheld or delayed.
The Parties will exercise reasonable, good faith efforts to resolve any dispute arising out of this Agreement within thirty (30) days of receipt of a Party’s written notice of the dispute. The invoiced party may dispute in good faith any invoice if the disputed amount exceeds one per cent (1%) of the total invoice or a value higher than 100 Eur. The Parties will attempt to resolve a dispute through discussions between each other at the operational level. In the event a resolution cannot be reached at the operational level within fifteen (15) days of receipt of notice of such dispute, the matter shall be escalated and negotiated between appointed counsel and/or senior executives of each Party who have the requisite authority to settle such dispute. If the Parties fail to resolve the dispute within thirty (30) days of receipt of notice of such dispute, a Party may present the dispute to a competent jurisdiction as set forth below (7.7). The Parties shall be responsible for their own costs associated with any court proceedings. If it is determined in accordance with this Section V that one Party owes the other Party any sum of money pursuant to the resolution of any dispute, such amount shall be payable within five (5) business days of resolution of said dispute.
The Parties hereto hereby acknowledge that during the course of this Agreement, either Party may acquire information regarding the other or its affiliates, its business activities, strategies and operations or those of its customers and suppliers, and its trade secrets including without limitation its customer lists, prospective customers, rates, network configuration, traffic volume, financial information, computer software, service, processes, methods, knowledge, research, development or other information, whether oral or written, of a confidential and proprietary nature (hereinafter “Confidential Information”). Each Party shall hold the Confidential Information in strict confidence and shall not reveal the Confidential Information, or any portion thereof. The foregoing obligations regarding disclosure of Confidential Information shall not apply, however, to any part of the Confidential Information which: (a) was already in the public domain or which becomes so through no fault of the receiving Party; (b) was already known or independently developed by the receiving Party; (c) was lawfully disclosed to the receiving Party prior to receipt hereof; (d) is expressly approved for release by written authorization of the disclosing Party; or (e) is disclosed pursuant to any judicial or governmental request, requirement or order provided, however, the receiving Party only makes disclosure to the extent required and, prior to making such disclosure, takes all reasonable steps to provide prompt and sufficient notice to the disclosing Party so that the disclosing Party may contest such request, requirement or order. The Confidential Information of each Party shall be safeguarded by the other to the same extent that it safeguards its own confidential materials or data relating to its own business, but with no less than reasonable care. Each Party agrees to limit access to such Confidential Information to employees, agents or representatives who have a need to know such information in order to perform the obligations set forth in this Agreement and such employees, agents or representatives will be notified by the Party providing access to the Confidential Information that the information is confidential in nature and is to be used only for the purposes of performing each Party’s obligations hereunder. The rights and obligations of the Parties hereto therefore also will inure to such affiliates, employees, agents and representatives of each Party and may be directly enforced by or against same. For the purposes of this Agreement, “employees” includes third parties retained by Advise s.r.l. or Company for temporary administrative, clerical or programming support and “agents” and “representatives” includes attorneys, accountants, auditors or other persons or entities to whom either Party discloses the Confidential Information. This paragraph shall survive expiration or termination of this Agreement for a period of one (1) year.
6.2 Return of Information
Upon request, the recipient of the Confidential Information will promptly return all Confidential Information (or any designated portion thereof), including all copies thereof, to the disclosing Party or, if so directed by the disclosing Party, destroy such Confidential Information. The recipient will also, within ten (10) days of written request by the disclosing Party, certify in writing that it has satisfied its obligations under this section. 6.3 Injunctive Relief The Parties agree that an impending or existing violation of these confidentiality provisions would cause the disclosing Party irreparable injury for which it would have no adequate remedy at law, and agree that the disclosing Party may be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it.
7.1 Use of Name
Each Party agrees that, without the other Party’s written consent, it will not use the name, trademarks, trade names, service marks or logos of the other Party or of any of its affiliated companies ("Marks") in any advertising, publicity, press releases or sales presentations. Each Party agrees it will not take any actions that will in any manner compromise the Marks of the other Party or its affiliates.
7.2 Independent Contractors
It is expressly understood that the Parties hereto are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed to be employees of the other for any purpose. This Agreement shall not be construed as authority for either Party to act on behalf of the other in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein.
The failure of either Party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect until modified by both Parties in writing.
7.4 Amendment and Modification
This Agreement shall not be valid until signed and accepted by a signatory duly authorized to legally bind the Parties hereto. No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of both Parties hereto, and no representation, promise, inducement or statement of intention has been made by either Party which is not embodied herein.
Neither Party will assign this Agreement or any rights under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld, except that each Party may assign or transfer this Agreement, in whole or in part, to any entity controlling, under common control with or controlled by such Party without the consent of the other Party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors or assigns.
Except as set forth herein, all notices and communications required under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes upon receipt only when sent via confirmed facsimile, certified post or registered mail (return receipt requested), or by electronic mail (deemed received upon delivery or return receipt), to the address set forth below or such other address as may be provided by the other Party in writing for the purpose of receiving such notices.
Either Party may change its address by giving the other Party notice of such change in accordance with this clause.
This Agreement is to be governed by and construed in accordance with the laws of Italy and the Parties hereby submit to the exclusive jurisdiction of the International Chamber of Commerce (ICC).
In the event a court of competent jurisdiction determines that any part or provision of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
The article and paragraph headings used herein are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement and the terms and provisions herein. This Agreement has been reviewed and negotiated between the Parties and any interpretation of the terms of this Agreement shall not be construed in any way against the drafting Party.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together will constitute one and the same instrument.
Nothing in this Agreement will prevent Advise or Company from entering into similar arrangements with, or otherwise providing Services to, any other person or entity.
7.12 Entire Agreement
This Agreement, including any exhibits attached hereto, sets forth the entire agreement and understanding of the Parties hereto and supersedes and merges any and all prior proposals, negotiations, representations, agreements, arrangements or understandings, both oral and written, relating to the subject matter hereof. The Parties hereto have not relied on any proposal, negotiation or representation, whether written or oral, that is not expressly set forth herein.
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