International VoIP Agreement









	

   


  	

  EXHIBIT 10.35


  





*

Omitted and filed separately with SEC pursuant to a confidential treatment

request.




 




International

VoIP Agreement




 




This International VoIP Agreement

(“Agreement”) is entered into on this 17 day of December, 2001

between Fusion Telecommunications International, Inc., a Delaware corporation

(“Fusion”), and Global ePoint, Inc., a Nevada corporation (“Global ePoint”),

referred to individually as a “Party” and collectively as “Parties.”




 




RECITALS




 




WHEREAS, Global ePoint is an investor in

strategic technology projects such as Internet Protocol communications

services;




 




WHEREAS, Fusion is a provider of network

communications services;




 




WHEREAS, subject only to Fusion’s agreement

with Net2Phone, the Parties wish to enter into a strategic partnership (the

“Venture”) in order to lawfully terminate Voice over Internet Protocol (“VoIP”)

services into Vietnam;




 




NOW, THEREFORE, in consideration of the

mutual covenants herein contained and other good and valuable consideration the

receipt and sufficiency of which is hereby acknowledged, the parties agree as

follows:




 




 




I. Obligations of the Parties




 




A. Fusion

Covenants and Agrees to:




 




1.               Be responsible

for selling to all potential customers in the U.S. and worldwide, minutes of

international VoIP services, on behalf of the Venture, to be terminated

lawfully in Vietnam.  This Agreement

includes services to be provided pursuant to any agreement with the

[***************************************] or one of its affiliates or

subsidiaries (hereinafter referred to collectively as “[***]”) or by another

entity which is lawfully able to terminate voice traffic into the [****]

network or any other network in Vietnam (“Other Entity”), provided that Global

ePoint elects to participate in the project within fifteen (15) business days

after being offered the same by Fusion.




 




2.               Maintain all

billing and accounting records for the sale to its customers of minutes

terminating to Vietnam, in addition to such other countries as the Parties may

hereafter agree to add by amendment to the arrangement set forth in this

Agreement.




 




3.               Maintain

adequate switching functions at its switch site in New York for aggregating its

customer minutes for termination in Vietnam.




 




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4.               Use its best

efforts to continue the validity of its valid agreement from an authorized

entity in Vietnam authorizing Fusion to lawfully terminate VoIP minutes to

Vietnam.




 




5.               To the extent

technically feasible, obtain and be responsible for international bandwidth for

interconnection of its New York PoP facility to a technically feasible point of

presence in Hanoi, Ho Chi Minh City and/or Danang, Vietnam, to be designated by

[*****] or Other Entity, including availability of a dedicated, clear channel,

point-to-point circuit; and E-1’s using PRI signaling or R-2 signaling with

tone plans for R-2, and configurations for any variations of this R-2

signaling.




 




6.               Provide

compression and routing equipment at Fusion’s designated point of presence in

New York (or other Point of Presence), and provide any necessary network

management equipment in the USA.




 




7.               Provide any

necessary equipment and services necessary to establish VoIP International

Gateways at Hanoi, Ho Chi Minh City and/or Danang, Vietnam.




 




8.               Obtain and be

responsible for facilities interconnecting (i) Fusion’s designated Point of

Presence in New York to the cable head in the USA; (ii) the cable head in the

USA to the cable head in Vietnam; and (iii) to the extent necessary, the cable

head end in Vietnam to the international VoIP gateways in Hanoi, Ho Chi Minh

City and/or Danang, Vietnam.




 




9.               Obtain and

provide to Global ePoint all other pertinent documentation regarding any

required authorizations or permits to perform its obligations with respect to

the business contemplated by this Agreement.




 




10.         Obtain and

provide any other equipment and services as required pursuant to the agreements

entered into with [****] or Other Entity.




 




 




 




B. Global

ePoint Covenants and Agrees to:




 




            1. Be responsible for any deposits, license fees

and other up front costs that are required to consummate the transactions

contemplated by this Agreement. Notwithstanding any other provision of this

Agreement, Global ePoint’s obligation to provide funding for any specific

contract entered into by Fusion or specific project contemplated by this

Agreement shall be subject to the feasibility of the performance of such

contract or such project as determined by Global ePoint, in its sole

discretion.




 




      2. 

Global ePoint will provide a Letter of Credit listing [****] or the

Other Entity as the beneficiary, in an amount 




 




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of approximately USD 300,000, the exact amount to be agreed to by the

Parties. The Letter of Credit will be issued by an internationally recognized

bank reasonably acceptable to the Parties or via other means reasonably

acceptable to the Parties and will serve as a deposit for termination charges.

This Letter of Credit shall include express language preventing any drawing

against it except for the purposes of paying termination charges that are not

timely paid. The term of the Letter of Credit shall be for one (1) year, after

which the joint entity formed by the Parties will have the responsibility to

replace the Letter of Credit with security acceptable to the then current

beneficiary.    In addition, Global

ePoint will provide cash in the amount of USD 50,000 for connection fees

associated with the interconnection with other networks and a cash amount to be

agreed upon by the Parties as prepayment for 2 months’ costs for each Vietnam

E1 submarine half-circuit, ILPC, ILPC- Vietnam side, local leased line, long

distance leased line between Ho Chi Minh City and Hanoi, local transmission

part of long distance leased line, local E-1 PSTN to be procured as well as

deposits required for US — side connectivity through to Hong Kong.




 




3.               Upon the

commencement of the actual passing and termination of minutes across the

network, the joint entity formed by the Parties will pay fees for termination

to [****] or the Other Entity or related parties, which fees shall be

approximately $[**] - $[**]  per minute

as follows: $[**] for the call, $[**] to [**] or Other Entity for a connection

charge ($[*] as a connection charge for cellular calls), and $[*] as a fee to

Fusion’s Vietnam Marketing Representative. The $[**] fee referred to above

shall be adjusted from time to time in accordance with market conditions.




 




4.               Be responsible

for all financial obligations hereunder necessary to meet the terms and conditions

of this Agreement and to finance all equipment, installations, connectivity and

services provided by Fusion hereunder until such time as the underlying

projects become self-financing.




 




5.

    Notwithstanding the

financial obligations as outlined in this Section B, the Parties agree that

Global ePoint’s financial obligations under this Agreement for deposits,

license fees, connection fees, network costs, equipment costs, and other costs

and fees described in this Section B (except for the Letter of Credit described

in Section B.2) shall not exceed USD $500,000. In addition, as outlined in

Section B.2., Global ePoint shall have the responsibility of posting a Letter

of Credit in the amount of USD $300,000. The Parties agree that should the

costs hereunder exceed the above amounts, Global ePoint shall not be liable for

such costs unless, in its sole and unfettered discretion, Global ePoint reaches

mutual agreement with Fusion on the payment of such additional costs required

in order to meet the terms and conditions of this Agreement. In the event that

additional monies are needed to fund a contract or project and there is not a

mutual agreement among the Parties and Global ePoint chooses not to fund the

additional monies, then upon Fusion’s securing the additional monies from an

outside source to fund the contract or project, Fusion shall reimburse Global

ePoint for all amounts expended on the 




 




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contract

or project by Global ePoint (and not previously reimbursed), and Global ePoint

shall retain an interest equal to the percentage that is remaining investment

bears to the total value of the contract or project, but not less than a ten

percent (10%) interest if Global ePoint elects to withdraw its entire investment

from the contract or project.




 




II Profit-sharing Arrangement




 




1.               Global ePoint and

Fusion shall each receive fifty percent (50%) of the aggregate Net Profit

generated through Fusion’s sale of VoIP minutes terminating to Vietnam to be

accounted for and distributed in accordance with the terms set forth in Section

4 below.




 




2.               The Parties

shall make settlement with and payment to each other, as necessary, on a

monthly basis, within ten (10) days after the end of each month.  Each monthly payment will be based upon the

management accounts produced by the Parties. 

At the conclusion of each Party’s financial year, an adjustment will be

made to the payment of the preceding fiscal year to reflect any audit

adjustments that were made based on the management accounts.  Any disputes will be resolved through

mutually agreed procedures.




 




3.               All unpaid, undisputed

balances shall accrue at the greater of 11⁄2% (one and one half percent) per

month or at the highest rate permitted by law. 

In addition, each Party shall pay all costs, including attorneys’ fees,

incurred by the other Party in connection with any proceeding to collect any

unpaid balances due under this Agreement. 

All payments, where applicable, shall be made via irrevocable wire

transfer to:




 




	

  Global ePoint:


  
	

  Wells

  Fargo Bank


  
	

  ABA

  #: 121000248


  
	

  Acct

  #: [**********]


  
	

  For:

  Global ePoint, Inc.


  
	

  1370

  W. San Marcos Blvd., Suite 100


  
	

  San

  Marcos, CA 92069


  
	

   


  
	

  Fusion:


  
	

  Chase Manhattan Bank


  
	

  ABA #: 021000021


  
	

  Acct #: [*********]


  
	

  For: Fusion

  Telecommunications


  
	

  International, Inc.


  
	

  420 Lexington Ave, Ste 518


  
	

  New York, NY 10170


  





 




 




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4.    Definitions of key terms and conditions used to calculate

profit sharing:




 




(a.) “Total Revenue” is

that revenue accruing to Global ePoint and Fusion from the sale to any customer

of VoIP minutes terminating in Vietnam through the Vietnam network contemplated

in this Agreement; provided that, in the case of sales to retail end users, the

revenue assigned to any such sale shall be computed as if the sale were made at

the average sales price received by each of the Parties during the month in

question from each of the Parties’ nonaffiliated wholesale customers to which

sales of said  Vietnam VoIP services are

made during the month in question.




 




(b.)”Net Profit”

shall equal Total Revenue (as computed pursuant to Paragraph (a) above) less

the following expenses:




 




•                  Undersea fiber charges (see Paragraph I.A.5 above);




•                  Terrestrial facility charges (local loops in USA and Vietnam)(see

Paragraph I.A.8 above);




•                  Termination expense in Country and other expenses as set forth in

Paragraph B.3 above;




•                  Per minute fee paid to Fusion’s Marketing Representative to be

initially $0. [**] per minute.




•                  Fees and expenses for the other elements of expense described in

Paragraph I.A. and I.B. above




•                  Amortization over a twelve (12) month period (such amortization to be

paid monthly) of equipment costs (see Paragraph I.A.6 and I.A.7.

above) as mutually agreed between the Parties and amortization of Fusion’s reasonable

cost of negotiating and executing the Vietnam Agreements, such costs are

approximately $30,000 (see Paragraph I. A. 4. Above), and;




•                  Amortization over a twelve (12) month period (such amortization to be

paid monthly) of Global ePoint’s cash deposits, if any, pursuant to Paragraph

B.2 above, it being understood that, if such deposits are in the form of a

letter of credit or similar mechanism rather than cash, then there will be no

amortization pursuant to this item but instead the letter of credit fee imposed

by Global ePoint’s bank will be chargeable as a monthly expense to arrive at

Net Profit; and,




•                  Fusion will be entitled to a network service and maintenance fee,

switch, selling, billing, administrative and bad debt reserve fee of $.015 per

minute on all traffic volumes.




 




If any of the foregoing

expenses are not paid from operating revenue of the Venture, the applicable

expense shall be reimbursed to the Party that provided the funding to pay such

expense in accordance with the amortization schedule set forth in this

Agreement.




 




5.                The terms of any interconnection agreement entered

into between the Venture and [****] or Other Entity shall include a termination

rate between




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approximately USD [***] and

USD [***] for cellular per minute, and the Parties agree to initially terminate

one (1) million minutes per month and anticipate increasing termination of

traffic to Vietnam to at least 4-5 million minutes per month. It is further

agreed that Fusion will utilize its best efforts to negotiate for a provision

in the agreement with [*****] or Other Entity that any license or other

authorization to operate in Vietnam shall include a mutually-agreed to formula

under which termination charges due and payable to the [****] or Other Entity

shall be reduced from time to time in response to declining margins. If Fusion

is unable to secure such an agreement from the government of Vietnam, both or

either of the Parties may terminate this Agreement immediately without penalty.

If Fusion secures such an agreement from the government of Vietnam, but market

rates for VoIPservices terminating to Vietnam decline so as to materially

affect the economic feasibility of a specific contract or project covered by

this Agreement, as determined by either Party in its sole discretion, then

either Party may terminate this Agreement with respect to such contract or

project immediately without penalty.




 




 




III. General Terms & Conditions




 




1.               References to

Fusion shall include Fusion Telecommunications International, Inc. and all

parent, subsidiary or affiliated entities, as well as its (their) successors

and assigns.




 




2.               References to

Global ePoint shall include Global ePoint, Inc. and all parent, subsidiary or

affiliated entities, as well as its (their) successors and assigns.




 




3.               (a) With regard

to the termination arrangement introduced by Fusion to Global ePoint as

contemplated by this Agreement, Global ePoint shall not circumvent  Fusion in such a way that excludes Fusion

from participating, or diminishes Fusion’s ability to participate, in such

termination arrangement.




 




(b) With regard to any other business opportunity that

either Party is pursuing, in the event that either Party discloses to the other

Party in writing such other business opportunity, the other Party shall not

circumvent such Party in such a way that excludes such Party from

participating, or diminishes such Party’s ability to participate, in such

business opportunity.  Furthermore, this

Agreement does not preclude either Party from entering into any other

agreement, venture, strategic alliance, or business opportunity relating to

VoIP services and/or Vietnam.




(c) The terms of this

Paragraph 3 shall survive expiration or termination of this Agreement.




 




4.  The Parties shall keep all oral and written

information disclosed in connection with this Agreement strictly confidential,

and will utilize the same degree of care 




 




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in safeguarding such information as it utilizes in

respect of its own confidential information. Neither Party shall make any

public disclosure of the discussions or content of material exchanged between

the Parties unless mutually agreed to by the Parties in writing or unless

required by law.   The Parties

acknowledge that Fusion has disclosed to Global ePoint that it is negotiating a

number of separate telecommunications arrangements in Vietnam, and Fusion

agrees that Global ePoint shall have a right of first refusal to participate in

any such arrangement in Vietnam under terms and conditions similar to this

Agreement.




 




5.  The Parties may mutually agree to establish

a Limited Liability Company through which to operate the arrangement described

herein.




 




6.               Term and Termination.  The term of this Agreement shall commence on

the Effective Date written above and shall continue for an initial term of one

year thereafter.  At the end of the

initial term, this Agreement shall automatically renew for successive six (6)

month terms unless any of the conditions for termination of this Agreement

occur.  Notwithstanding the foregoing,

except for termination for one of the reasons described below, this Agreement

shall not terminate as long as Fusion or the Venture is party to an agreement

with [****] or Other Entity for VoIP services to be terminated in Vietnam.




 




                                                In addition to any other termination

provisions contained in this Agreement, either Party may terminate this

Agreement immediately upon written notice to the other Party, in the event of:




 




a)              a breach by the

other Party of a material term, representation, warranty, or obligation of this

Agreement which breach is not cured (if curable) within thirty (30) calendar

days after receipt of notice of breach from the non-breaching Party;




 




b)             fraud,

deception or non-payment of obligations;




 




c)              a

Force

Majeure event (as defined below) which prevents either Party from

performing material obligations required under this Agreement for a period of

thirty (30) days or more;




 




d)             the other

Party’s insolvency, receivership, or voluntary bankruptcy; or the institution

of involuntary proceedings for bankruptcy against the other Party that are not

stayed or dismissed within ninety (90) calendar days after the institution

thereof;




 




e)              a general

assignment by the other Party of all or substantially all of its business or

assets for the benefit of creditors;




 




f)                substantially

all of the other Party’s property, or that which is used in providing the

Services, is or becomes subject to levy, seizure, assignment or 




 




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sale for or by any creditor

or governmental agency, unless the judgment or debt is released or satisfied

within ten (10) business days; or




 




g)             a determination

by any governmental authority having jurisdiction or court of competent

jurisdiction that the operations contemplated hereby are in violation of

applicable legal restrictions.




 




7. Procedure Upon Termination.  Upon expiration or termination of this

Agreement for any reason. Fusion shall retain use of the network and will compensate

Global ePoint for its investment in equipment, up front costs, license fees,

and other costs paid by it, to the extent that such investment has not been

recovered by Global ePoint pursuant to the amortization provisions of Section

4. If Fusion chooses not to operate the network after termination of this

Agreement, Fusion will maintain ownership of any equipment and Global ePoint

shall retain ownership of any Letters of Credit, or other investments that

Global ePoint has contributed to this venture unless such project has become

self-financing.




8.Regulatory Issues or Changes. Should the adoption of any law, rule,

regulation, or agency or judicial determination by a court of competent

jurisdiction materially affect either Party’s ability to perform its obligations

pursuant to this Agreement, such Party may terminate this Agreement immediately

without any termination liability upon written notice to the other Party.




                                                 9.Taxes. All payments hereunder shall be made in US Dollars.  The paying Party shall be responsible for

the payment of all taxes (including without limitation applicable VAT or

withholding taxes but excluding taxes based solely on the other Party’s net

income) and import duties (collectively, “Taxes”).  Should the paying Party claim any exemption of any sales, use, or

other tax, such Party must provide the other Party with such proof of

exemption.  It will be the paying

Party’s responsibility to ensure that its exempt status remains current, and in

no event shall the other Party be liable for any taxes owed by the paying Party

in accordance with applicable law.




10.No Warranty. ALL SERVICES PROVIDED HEREUNDER ARE

PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR

STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO THE DESCRIPTION,

QUALITY, MERCHANTIBILITY, NONINFRINGEMENT, COMPLETENESS, FITNESS FOR A

PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING EXPRESSLY EXCLUDED AND

DISCLAIMED.




11.LIMITATION OF DAMAGES. In no event shall either

Party be liable to the other Party for any indirect, special, incidental,

punitive or consequential losses or damages, including without limitation, lost

profits and loss of goodwill arising in any manner from this Agreement or the

use of the Services, however caused and regardless of theory of liability.  This limitation will apply even if such

Party has been advised or is aware of the possibility of such damages.




 




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12.Limitation of Liability.  Except for each Party’s liability arising out of its

indemnification obligations and confidentiality obligations, each Party’s

liability to the other for all claims arising out of this Agreement shall be

limited to the amount of fees paid by that Party under the terms of this

Agreement, whether such claim is based in contract, tort, or other legal

theory.




13.Compliance with Laws.  Neither Party shall use the Services provided hereunder (a) in

violation of any applicable export laws and regulations (including without

limitation any U.S. export laws and regulations); (b) in violation of any

applicable national, state, or local laws or regulations, including without

limitation any laws governing the import of the Services or governing the

content that either Party makes available via the Services provided hereunder;

or (c) in ways that infringe the rights of others, or interfere with other

users of the other Party’s network or other networks.  Either Party reserves the right to suspend the Services provided

hereunder (or any portion thereof) with twenty-four (24) notice in the event

that it believes that the other Party’s use (or any of the other Party’s

customer’s use), whether knowingly or not, of the Services is in violation of

this section.  Either Party reserves the

right to terminate the Services provided hereunder in the event of chronic or

uncured violations of this Section. 

Nothing in this Section or in any other portion of this Agreement shall

be interpreted as permitting either Party to deny to the other Party access to

the Vietnam network; provided that any continuing use of said network after

notification of the violation of this Section 13 by one of the Parties shall be

at the sole risk of such Party.




14.Indemnification. Each Party (for purposes of this

paragraph “Indemnifying Party”) shall indemnify and hold harmless the other

Party (“Indemnified Party”) and all of its officers, agents, directors,

shareholders, subcontractors, subsidiaries, employees and other affiliates

(collectively “Affiliates”) from and against any claim, cost, damages, demand,

liability, loss, penalty, proceeding, including reasonable attorney’s fees, and

costs and expenses incidental thereto, which may be suffered by, accrued

against, charged to or recoverable from the Indemnified Party or any of its

Affiliates, arising out of: (i) the Indemnifying Party’s breach of this

Agreement and/or any interconnection agreement entered into between the Venture

and [****] or Other Entity; (ii) a claim by a third party against the

Indemnified Party or any of its Affiliates that the Services, or any portion or

use thereof, infringes or violates any patent, copyright, trademark, trade

secret or other intellectual property right; or (iii) damage 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 in connection

with the performance of this Agreement. 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.




15.Force Majeure. 

Neither Party shall be liable (except for payment for services rendered)

for service interruptions, delays, failures to perform, damages, losses or

destruction, or malfunction of any equipment or any consequence thereof cause

by or due to fire, flood, water, the elements, acts of God, war, and threat of

imminent war, utility curtailments, power failures, explosions, civil

disturbances, 




 




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governmental actions, shortages of equipment for

supplies, unavailability of transportation, acts or omissions of third parties,

or any other cause beyond either Parties’ reasonable control.  The Party so delayed or prevented from

performing shall exercise good faith efforts to remedy any such cause of delay

or cause preventing performance. The existence of such a situation for a

duration longer than fifteen (15) calendar days shall entitle either Party to

terminate this Agreement without liability to the other Party, except for any

undisputed payment for Services rendered, subject to prior written notice.




16.Entire Agreement - This Agreement constitutes the entire agreement

between the Parties and supersedes all previous understandings, commitments or

representations concerning its subject matter. 

This Agreement may not be amended or modified in any way, and none of

its provisions may be waived, except by a writing signed by an authorized

officer of each Party.




17.Severability - In the event that any one or more of the provisions

contained in this Agreement shall for any reason be held to be invalid, illegal

or unenforceable in any respect, such invalidity, illegality or

unenforceability shall not affect any other provision of this Agreement, but

this Agreement shall be construed as if such invalid, illegal or unenforceable

provision had never been contained herein. 

Further, in the event that any provision of this Agreement shall be held

to be invalid, illegal or unenforceable by virtue of its scope or period of

time, but may be enforceable by a limitation thereof, such provision shall be

deemed to be amended to the minimum extent necessary to render it valid, legal

and enforceable or in the alternative both Parties shall negotiate in good faith

to substitute for such invalid, illegal, or unenforceable provision a mutually

acceptable provision that is consistent with the original intent of the

Parties.




18.Non-Waiver of Breach - Each Party may specifically waive any breach

of this Agreement by the other Party, provided that no such waiver shall be

binding or effective unless in writing and no such waiver shall constitute a

continuing waiver of similar or subsequent breaches.  A waiving Party may at any time, upon notice in writing, direct

future compliance with the waived term or terms of this Agreement, in which

event the breaching Party shall comply as directed thereafter.




19.Notices - All notices and other communications shall be in English,

in writing, and shall be deemed received upon actual delivery (if sent by

messenger, overnight courier or certified mail, return receipt requested) or

completed facsimile.  Notices shall be

addressed to the other Party at the address set forth below:




 




If to Fusion (except for rate change notices):




 




	

  Fusion Telecommunications

  International, Inc.


  
	

  420 Lexington Avenue


  
	

  Suite 518


  
	

  New York, NY 10170


  
	

  Fax: (212) 972-7884


  





 




 




 




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  Attention:  Executive Vice President—International


  





 




If to Fusion for the purposes of rate change

notices:




 




	

  Fusion Telecommunications

  International, Inc.


  
	

  1415 W. Cypress Creek Road


  
	

  Suite 220


  
	

  Ft. Lauderdale, FL  33309


  
	

  Fax: (954) 493-8449


  
	

  Attention:  Vice President—Operations Finance


  





 




 




If to Global ePoint:




 




	

  Global ePoint, Inc


  
	

  1370 W. San Marcos Blvd.


  
	

  Suite 100


  
	

  San Marcos, CA 92069


  
	

  Attn: Frederick Sandvick,

  CEO


  
	

  Tel: 760-560-4900


  
	

  Fax: 760-510-4920


  





 




Each Party will advise the other of any change in its

address, telephone number or facsimile number.




20.Headings. 

The headings of the Sections and subsections of this Agreement are

inserted for convenience only and do not constitute a part of this Agreement

nor shall they be considered when interpreting or construing this Agreement.




21.Schedules.  The Schedules attached hereto are part of this Agreement as fully

for all intents and purposes as if they were inserted in the body of this

Agreement.




22.Assignment.  This Agreement shall be binding on the

Parties and their respective affiliates, successors and permitted assigns.  Neither Party shall assign or transfer their

respective rights or obligations under this Agreement to any other entity

without the prior written consent of the other Party, which consent shall not

be unreasonably withheld. Notwithstanding the foregoing, either party may (i) assign its rights and delegate its obligations

under this Agreement to a majority-owned or majority-controlled subsidiary or

affiliate (for the purposes of this Section 22, “affiliate” shall mean

an entity controlling, controlled by, or under common control of such party) or (ii) assign its rights and delegate its

obligations under this Agreement to an affiliate or its successor in

connection with a merger, spin-off, divestiture, reorganization or sale of

all or substantially all of its assets, 




 




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and such assignee/successor

shall remain liable for all of the rights and obligations hereunder; provided

however, that if either Party makes such an assignment, such Party shall

provide reasonable notice to the other Party of such assignment.




23.Counterparts.  This Agreement may be executed in several

counterparts, each of which shall be deemed an original, and all such

counterparts together shall constitute but one and the same instrument.




24.Relationship.  Neither Party shall have the authority to

bind the other by contract or otherwise make any representations or guarantees

on behalf of the other.  Both Parties

acknowledge and agree that the relationship arising from this Agreement does

not constitute an agency, joint venture, partnership, employee relationship or

franchise.  Provider acknowledges and

agrees that it is an independent contractor. The Parties acknowledge that, for

all purposes, the project(s) described in this Agreement shall be operated and

controlled by Fusion in its role as telecommunications provider.




 




25. Publicity.  No public statements or announcements

relating to this Agreement shall be issued by either Party without the prior

written consent of the other Party.




26.Governing Law.  The Parties expressly agree that the

governing law of this   Agreement shall

be the substantive law of the State of New York without regard to or

application of choice of law principles or the body of law relating to the United

National Convention on the International Sale of Goods.  Each Party shall comply with all applicable

United States and foreign laws, regulations and ordinances relating to their

performance hereunder.




 




Agreed and accepted:




 




	

  Global ePoint, Inc.


  	

  Fusion Telecommunications International, Inc.


  
	

   


  
	

  By:


  	

  /s/Frederick Sandvick


  	

   


  	

  By:


  	

  /s/Eric D. Ram


  	

   


  
	

   


  
	

  Print Name:


  	

  Frederick Sandvick


  	

   


  	

  Print Name:


  	

  Erik D. Ram


  	

   


  
	

   


  
	

  Title:


  	

  CEO


  	

   


  	

  Title:


  	

  E.V.P. — International


  	

   


  
	

   


  
	

  Date:


  	

  12/17/01


  	

   


  	

  Date:


  	

  12/17/01


  	

   


  
																





 




 




[*] 

Confidential portions redacted and filed separately with the Securities

Exchange Commission.




 




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