{"id":42389,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/internet-telecommunications-agreement-idt-corp-and-net2phone.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"internet-telecommunications-agreement-idt-corp-and-net2phone","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/internet-telecommunications-agreement-idt-corp-and-net2phone.html","title":{"rendered":"Internet\/Telecommunications Agreement &#8211; IDT Corp. and Net2Phone Inc."},"content":{"rendered":"<pre>\n                     INTERNET\/TELECOMMUNICATIONS AGREEMENT\n\n     INTERNET\/TELECOMMUNICATIONS AGREEMENT, dated May 7, 1999 (this\n\"Agreement\"), by and between IDT Corporation, a Delaware corporation (\"IDT\"),\nand Net2Phone, Inc., a Delaware corporation (\"Net2Phone\").\n\n     WHEREAS, Net2Phone is currently a subsidiary of IDT;\n\n     WHEREAS, IDT currently maintains a telecommunication switching\ninfrastructure and network which provides Internet access and Internet telephony\nservices for the customers of IDT and Net2Phone;\n\n     WHEREAS, parties intend that Net2Phone be given an indefeasible right to\nuse parts of IDT's Internet network.\n\n     NOW, THEREFORE, in consideration of the premises and mutual promises and\nrepresentations contained herein, and other good and valuable consideration, the\nsufficiency of which is hereby acknowledged, the parties hereto do mutually\ncovenant, stipulate and agree as follows:\n\nSection  1.    Internet Network.\n               ---------------- \n                (a)  Existing Network. IDT hereby grants and conveys to\nNet2Phone an indefeasible right to use and enjoy those equipment items,\nequipment leases and rights of use and\/or access which are part of its existing\nDS3 network and are described on Exhibit A hereto (the \"Existing Network\"), such\n                                 --------- \ngrant and conveyance to be effective as of the date hereof. The foregoing grant\nand conveyance shall terminate as follows: (i) with respect to any part of the\nExisting Network which will be replaced by the Frontier Network (as defined\nbelow), upon Net2Phone exercising its rights set forth in Section 2(a) hereof\nwith respect to such part of the Existing Network; (ii) with respect to any part\nof the Existing Network, upon the expiration of the respective lease or other\nagreement set forth in Exhibit A relating to such part of the Existing Network;\n                       ---------                 \n(iii) with respect to any part of the Existing Network not sooner terminated\npursuant to clauses (i) or (ii) above,...[consider a date certain with renewals;\nconsider whether either party should have the unilateral right to terminate].\n\n     Net2Phone hereby agrees it shall perform all obligations reasonably\nrequired of it by IDT and shall do nothing whatsoever in violation of the leases\nand other agreements set forth on Exhibit A.  It is expressly understood that\n                                  ---------                                  \nIDT retains all obligations to pay rent and\/or usage fees in connection with all\nagreements set forth on Exhibit A.\n                        --------- \n\n                (b)  Frontier Network.  Pursuant to a Telecommunications \n                     ----------------               \nServices Agreement, dated September 24, 1998 (the \"Frontier Agreement\"), by and\nbetween IDT and Frontier Communications of the West, Inc. (\"Frontier\"), IDT has\nan indefeasible right to use a certain telecommunication network as it is\ncompleted and delivered pursuant to the terms and conditions set forth in the\nFrontier Agreement. IDT hereby \n\n                                       1\n\n \ngrants and conveys to Net2Phone an indefeasible right to use and enjoy those\nparts of such telecommunication network which are described on Exhibit B hereto\n                                                               --------- \n(the \"Frontier Network\"), such grant and conveyance to be effective, with\nrespect to those parts of the Frontier Network which have already been\ncompleted, delivered and installed, on the date hereof and, with respect to any\npart of the Frontier Network which has not yet been completed, delivered and\ninstalled, on the date such part of the Frontier Network is completed, delivered\nand installed. The foregoing grant and conveyance with respect to the Frontier\nNetwork shall terminate upon the expiration of the Frontier Agreement, in\naccordance with its terms.\n\n     Net2Phone hereby agrees it shall perform all obligations reasonably\nrequired of it by IDT and shall do nothing whatsoever in violation of the\nFrontier Agreement.  It is expressly understood that IDT retains all obligations\nto pay rent and\/or usage fees in connection with the Frontier Agreement.\n\n                (c)  Networking Infrastructure.  IDT hereby grants and conveys \n                     -------------------------                     \nto Net2Phone the right to use and enjoy the equipment, equipment leases, co-\nlocation agreements and rights of use and\/or access primarily located at the\nbackbone points of presence on its Internet network and comprising its\nnetworking infrastructure, as more particularly described on Exhibit C\n                                                             ---------\nhereto (the \"Networking Infrastructure Equipment\"), for a period of two\nyears commencing on the date hereof.\n\n     Net2Phone hereby agrees that it shall perform all obligations reasonably\nrequired of it by IDT and shall do nothing whatsoever in violation of the leases\nand other agreements set forth on Exhibit C.  It is expressly understood that\n                                  ---------                                  \nIDT retains all obligations to pay rent and\/or usage fees in connection with all\nagreements set forth on Exhibit C.\n                        --------- \n\n                (d)  Transit Relationship Agreements.  IDT hereby agrees to \n                     -------------------------------       \nenter into transit relationship agreements with Net2Phone to provide Net2Phone\nwith rights of access substantially identical with those of IDT at the locations\nset forth on Exhibit D hereto.\n             ---------        \n\n                (e)  Network Operations Center.  IDT hereby grants and conveys \n                     -------------------------              \nto Net2Phone the right to use and enjoy the equipment, equipment leases and\nrights of use and\/or access and other facilities comprising its Network\nOperations Center, as more particularly described on Exhibit E hereto (the \"NOC\n                                                     ---------                 \nFacilities\"), for a period of two years commencing on date hereof.\n\n     Net2Phone hereby agrees that upon such grant and conveyance it shall\nperform all obligations reasonably required of it by IDT and shall do nothing\nwhatsoever in violation of the leases and other agreements set forth on Exhibit\n                                                                        -------\nE.  It is expressly understood that IDT retains all obligations to pay rent\n-                                                                          \nand\/or usage fees in connection with all agreements set forth on Exhibit E.  All\n                                                                 ---------      \nIDT employees at the NOC Facilities (listed on Exhibit F hereto) shall be\n                                               ---------                 \ntransferred to, and become employees of, Net2Phone on the date hereof or as\npromptly thereafter as is feasible so as to permit an orderly transition.\n\n                                       2\n\n \n                (f)  Maintenance and Support.  With respect to leases and \n                     -----------------------                \nother agreements described in the Exhibits hereto, IDT shall be responsible to\ncause the other parties to such leases and other agreements to fulfill their\nrespective contractual obligations, including those (if any) relating to the\nmaintenance of equipment or network access, and shall use commercially\nreasonable efforts to do so. With respect to equipment leased by IDT to which\nNet2Phone has been given the right of use pursuant to this Agreement, Net2Phone\nshall reimburse IDT for all costs and expenses incurred by IDT for the\nmaintenance of such equipment to the extent that IDT is contractually obligated\nfor such maintenance. Net2Phone shall also reimburse IDT for all necessary\nupgrades to such equipment and, to the extent permitted by the respective\nleases, Net2Phone shall own any upgrades so installed.\n\n                (g)  Equipment Transfers.  To the extent that any equipment \n                     -------------------                 \ndescribed on the Exhibits hereto is subject to a lease containing a purchase\noption which may be exercised during the term of Net2Phone's right to use such\nitem of equipment hereunder, IDT shall exercise such option only upon the\ndirection of, and at the expense of, Net2Phone. Any purchase options which are\nso exercised shall be exercised exclusively for the account of Net2Phone and IDT\nshall instruct any lessor to transfer title directly to Net2Phone. In the event\nthat a lessor cannot or will not transfer title directly to Net2Phone upon the\nexercise of a purchase options, IDT shall take title in its own name and as soon\nas practicable thereafter transfer title to Net2Phone of any such equipment so\nacquired for no additional consideration.\n\n                (h)  No Modifications to Third Party Contracts.  With respect \n                     -----------------------------------------                \nto the Frontier Agreement and all the leases and other agreements described on\nthe Exhibits hereto from which IDT derives the rights necessary for Net2Phone to\nexercise the rights of use granted herein, IDT shall fulfill all of its\nobligations under such agreements and shall not amend, alter, supplement,\nterminate, cancel, assign, transfer or otherwise modify any such agreement\nwithout the prior written consent of Net2Phone.\n\n                (i)  No Assignment.  This Agreement shall not be construed as \n                     -------------                               \nan assignment or as an attempted assignment of any of the leases or other\nagreements set forth on the Exhibits hereto. To the extent that any transaction\ncontemplated by the provisions of this Agreement requires the consent of a party\nto the leases or other agreements set forth on the Exhibits hereto (other than\nIDT), such transaction shall not be effectiveness with respect to such lease or\nother agreement until such consent has been received.\n\n                (j)  Hosting Service.  It is understood that IDT retains \n                     ---------------         \nprimary control over the Internet equipment listed on the Exhibits hereto.\nNotwithstanding the foregoing, to the extent that IDT requires Net2Phone's\nassistance in gaining Internet access as a result of Net2Phone exercising the\nrights to use the equipment and\/or access granted to Net2Phone herein, Net2Phone\nhereby agrees facilitate such access for a period of two years commencing on the\ndate hereof. Following such two year period, Net2Phone's obligation to\nfacilitate IDT's Internet access shall automatically renew for one year periods\nunless either party has given the other written notice terminating such\nfacilitation 60 days prior to the end of the original two year period or any one\nyear period thereafter. \n\n                                       3\n\n \nAs compensation to Net2Phone for facilitating such access, IDT agrees to pay for\nsuch usage and services as provided in Section 2(d) hereof.\n\n                (k)  Transfer Pricing.  IDT and Net2Phone agree to route one \n                     ----------------                           \nanother's telecommunications traffic at the providing party's cost plus 10%, for\na period of two years commencing on the date hereof. Following such two year\nperiod, such obligation shall automatically renew for one year periods unless\neither party has given the other written notice terminating such obligation 60\ndays prior to the end of the original two year period or any one year period\nthereafter.\n\n                (l)  Network Unavailability.  Each of the parties acknowledges \n                     ----------------------               \nthat the Internet network or any of the networks or equipment referred to herein\nmay be unavailable periodically for the purposes of maintenance and\/or upgrades.\nEach of the parties further acknowledges that periodic service outages, known as\n\"brownouts,\" may occur in connection with the server. Each of the parties shall\nuse all reasonable efforts to minimize any such interruptions and brownouts with\nrespect to equipment or other aspects of the network and network infrastructure\nwhich it controls. Each party agrees to hold the other party harmless of any and\nall losses arising to such party and\/or any third parties as a result of\n\"brownouts,\" service interruptions and server unavailability.\n\n     Each of the parties acknowledges that data stored on the Internet Network\nmay be lost due to accidents or unforeseen circumstances.  Each of the parties\nagrees to make daily backup copies of its own data stored on the Internet\nNetwork.\n\nSection  2.    Payments.\n-------------  -------- \n\n                (a)  Existing Network.  Beginning on the date hereof and \n                     ----------------                         \ncontinuing until the termination in its entirety of the grant and conveyance\nwith respect to the Existing Network, Net2Phone shall reimburse IDT an amount\nequal to the costs and fees IDT incurs subsequent to the date hereof pursuant to\nsuch leases and other agreements, such reimbursement shall be due and payable\nupon payment by IDT of such costs and fees. As the Frontier Network is\ncompleted, delivered and installed, Net2Phone shall have the right to require\nIDT to terminate, in whole or in part, any or all of the leases and other\nagreements set forth in Exhibit A, to the extent permitted by such\n                        ---------                                 \ninstruments. To the extent that IDT incurs any termination or cancellation\ncharges as a result of any such lease or contract terminations, Net2Phone shall\nreimburse IDT for such charges upon demand.\n\n                (b)  Frontier Network.  Pursuant to the Frontier Agreement, \n                     ----------------                                       \nIDT must pay Frontier certain non-recurring charges for the installation of the\nFrontier network, some of which IDT has already paid Frontier and the remainder\nof which IDT will pay Frontier as the network is completed, delivered and\ninstalled. Net2Phone shall reimburse IDT for those non-recurring charges\nincurred (or to be incurred) by IDT with respect to those parts of the Frontier\nAgreement set forth on Exhibit B hereto, with interest at 9% per annum, in 60 \n                       ---------                                \nequal monthly payments commencing on _________ __, 1999.\n\n     In addition, beginning on the date hereof and continuing until the\ntermination in \n\n                                       4\n\n \nits entirety of the grant and conveyance with respect to the Frontier Network,\nNet2Phone shall reimburse IDT an amount equal to the costs and fees IDT incurs\nsubsequent to the date hereof with respect to the Frontier Network pursuant to\nthe Frontier Agreement (other than the non-recurring charges), such\nreimbursement shall be due and payable upon payment by IDT of such costs and\nfees.\n\n                (c)  Networking Infrastructure, Transit Relationships and \n                     ----------------------------------------------------\nNetwork Operations Center.  For 24 months commencing on April 1, 1999, \n-------------------------       \nNet2Phone shall pay to IDT $50,000 per month as compensation for the rights of\nusage and enjoyment with respect to the Networking Infrastructure Equipment (as\nset forth in Section 1(c) hereof) and the NOC Facilities (as set forth in\nSection 1(e) hereof) and for the Transit Relationship Agreements (as described\nin Section 1(d) hereof). Upon the expiration of Net2Phone's rights to use and\nenjoy the Networking Infrastructure Equipment and NOC Facilities pursuant to\nSections 1(c) and (e) hereof, IDT hereby grants to Net2Phone the right to\npurchase from IDT at fair market value any such items of equipment then owned by\nIDT (excluding any items temporarily in the name of IDT pursuant to Section 1(g)\nhereof).\n\n                (d)  Internet Usage and Services.  During the period set forth\n                     ---------------------------                         \nin Section 1(j) hereof, IDT shall pay on the first day of each month (i) for\neach of IDT's dial-up Internet customers, $1.00 and (ii) for each of IDT's\ndedicated-line Internet customers, the lesser of $100.00 or 20% of the fee that\nIDT charges such customer. Additionally, in the case of IDT's dedicated-line\ncustomers, IDT shall pay Net2Phone 25% of all installation fees charged such\ncustomers by IDT.\n\nSection  3.    Ownership of Equipment and Intellectual Property.\n               ------------------------------------------------ \n\n     [to be provided following the Company's completion of Exhibit A and B]\n\nSection  4.    Termination.\n               ----------- \n\n                (a) Except as specifically set forth in this Agreement, this\nAgreement may not be terminated except by the mutual agreement of the parties in\nwriting. \n\n                (b) Sections 3 and 4 shall survive termination of this\nAgreement.\n\nSection  5.    Miscellaneous.\n               ------------- \n\n                (a)  This Agreement may not be transferred or assigned by either\nparty, whether voluntarily or by operation of law, without the prior written\nconsent of the other. This Agreement shall inure to the benefit of and be\nbinding upon all permitted successors and assigns.\n\n                (b)  This Agreement shall be governed by the laws of the State\nof New York (regardless of the laws that might otherwise govern under applicable\nprinciples of conflicts of law) as to all matters, including, but not limited\nto, matters of validity, construction, effect, performance and remedies.\n\n                                       5\n\n \n                (c)  This Agreement may be executed in counterparts, each of\nwhich shall constitute an original and both of which together shall be deemed to\nbe one and the same instrument.\n\n                (d)  All notices, requests, demands, waivers and other\ncommunications required or permitted to be given under this Agreement shall be\nin writing and shall be deemed to have been duly given if delivered personally\nor by facsimile transmission or mailed (certified or registered mail, postage\nprepaid, return receipt requested):\n\n          If to IDT, to:        IDT Corporation\n                                190 Main Street\n                                Hackensack, New Jersey  07601\n                                Attention:  Chief Financial Officer\n                                Fax No.:  (201) 907-5165\n\n          If to Net2Phone, to:  Net2Phone, Inc.\n                                171 Main Street\n                                Hackensack, New Jersey  07601\n                                Attention:  Chief Financial Officer\n                                Fax No.:  (201) 907-5351\n\nor to such other person or address as any party shall specify by notice in\nwriting to the other party.  All such notices, requests, demands, waivers and\ncommunications shall be deemed to have been received on the date on which hand\ndelivered, upon transmission of the facsimile transmission by the sender and\nissuance by the transmitting machine of a confirmation slip confirming that the\nnumber of pages constituting the notice have been transmitted without error, or\non the third business day following the date on which so mailed, except for a\nnotice of change of address, which shall be effective only upon receipt thereof.\nIn the case of a notice sent by facsimile transmission, the sender shall\ncontemporaneously mail a copy of the notice to the addressee at the address\nprovided for above.  However, such mailing shall in no way alter the time at\nwhich the facsimile notice is deemed received.  In no event shall the provision\nof notice pursuant to this Section 5(d) constitute notice for service of\nprocess.\n\n                (e)  This Agreement contains the entire understanding of the\nparties hereto with respect to its subject matter. This Agreement supersedes all\nprior agreements and understandings, oral or written, with respect to its\nsubject matter.\n\n                (f)  In the event that any one or more of the provisions\ncontained herein is held invalid or unenforceable in any respect, the parties\nshall negotiate in good faith with a view toward substituting therefor a\nsuitable and equitable solution in order to carry out the intent and purpose of\nsuch invalid provision; provided, however, that the validity and enforceability\nof any such provision in every other respect and of the remaining provisions\ncontained herein shall not be in any way impaired thereby, it being intended\nthat all of the rights and privileges of the parties hereto shall be enforceable\nto the fullest extent permitted by law.\n\n                                       6\n\n \n                (g)  The Section headings contained in this Agreement are for\nreference only and shall not affect the meaning or interpretation of this\nAgreement.\n\n                (h)  Any dispute, controversy or claim arising out of or\nrelating to this Agreement or the breach, termination or validity hereof, or any\ntransaction contemplated hereby shall be settled in accordance with the\nprocedures set forth in Article VIII of the Separation Agreement, dated as of\nMay 7, 1999, by and between IDT and Net2Phone, as if such Article VIII were set\nforth herein in its entirety.\n\n                                       7\n\n \n     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted by their duly authorized representatives as of the date first above\nwritten.\n\n                              IDT CORPORATION\n\n                              By: \/s\/ Hal Brecher\n                                  -----------------------------------------\n                              Name: Hal Brecher\n                              Title: COO\n\n\n                              NET2PHONE, INC.\n\n                              By: \/s\/Howard Balter\n                                  -----------------------------------------\n                              Name: Howard S. Balter\n                              Title: CEO\n\n                                       8\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7828,8319],"corporate_contracts_industries":[9510,9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42389","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-idt-corp","corporate_contracts_companies-net2phone-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42389","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42389"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42389"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42389"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42389"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}