|   | **EXHIBIT 10.35** |
|--------|-------------------|

***Omitted and filed separately with SEC pursuant to a confidential treatmentrequest.**

** **

**InternationalVoIP Agreement**

 

This International VoIP Agreement(“Agreement”) is entered into on this 17 day of December, 2001between 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 instrategic technology projects such as Internet Protocol communicationsservices;

 

WHEREAS, Fusion is a provider of networkcommunications services;

 

WHEREAS, subject only to Fusion’s agreementwith 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 themutual covenants herein contained and other good and valuable consideration thereceipt and sufficiency of which is hereby acknowledged, the parties agree asfollows:

 

 

###### **I. Obligations of the Parties**

 

**A. FusionCovenants and Agrees to:**

 

1.               Be responsiblefor selling to all potential customers in the U.S. and worldwide, minutes ofinternational VoIP services, on behalf of the Venture, to be terminatedlawfully in Vietnam.  This Agreementincludes services to be provided pursuant to any agreement with the[***************************************] or one of its affiliates orsubsidiaries (hereinafter referred to collectively as “[***]”) or by anotherentity which is lawfully able to terminate voice traffic into the [****]network or any other network in Vietnam (“Other Entity”), provided that GlobalePoint elects to participate in the project within fifteen (15) business daysafter being offered the same by Fusion.

 

2.               Maintain allbilling and accounting records for the sale to its customers of minutesterminating to Vietnam, in addition to such other countries as the Parties mayhereafter agree to add by amendment to the arrangement set forth in thisAgreement.

 

3.               Maintainadequate switching functions at its switch site in New York for aggregating itscustomer minutes for termination in Vietnam.

 

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4.               Use its bestefforts to continue the validity of its valid agreement from an authorizedentity in Vietnam authorizing Fusion to lawfully terminate VoIP minutes toVietnam.

 

5.               To the extenttechnically feasible, obtain and be responsible for international bandwidth forinterconnection of its New York PoP facility to a technically feasible point ofpresence 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 withtone plans for R-2, and configurations for any variations of this R-2signaling.

 

6.               Providecompression and routing equipment at Fusion’s designated point of presence inNew York (or other Point of Presence), and provide any necessary networkmanagement equipment in the USA.

 

7.               Provide anynecessary equipment and services necessary to establish VoIP InternationalGateways at Hanoi, Ho Chi Minh City and/or Danang, Vietnam.

 

8.               Obtain and beresponsible for facilities interconnecting (i) Fusion’s designated Point ofPresence in New York to the cable head in the USA; (ii) the cable head in theUSA to the cable head in Vietnam; and (iii) to the extent necessary, the cablehead end in Vietnam to the international VoIP gateways in Hanoi, Ho Chi MinhCity and/or Danang, Vietnam.

 

9.               Obtain andprovide to Global ePoint all other pertinent documentation regarding anyrequired authorizations or permits to perform its obligations with respect tothe business contemplated by this Agreement.

 

10.         Obtain andprovide any other equipment and services as required pursuant to the agreementsentered into with [****] or Other Entity.

 

 

 

**B. GlobalePoint Covenants and Agrees to:**

 

            1. Be responsible for any deposits, license feesand other up front costs that are required to consummate the transactionscontemplated by this Agreement. Notwithstanding any other provision of thisAgreement, Global ePoint’s obligation to provide funding for any specificcontract entered into by Fusion or specific project contemplated by thisAgreement shall be subject to the feasibility of the performance of suchcontract or such project as determined by Global ePoint, in its solediscretion.

 

      2. Global ePoint will provide a Letter of Credit listing [****] or theOther Entity as the beneficiary, in an amount 

 

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of approximately USD 300,000, the exact amount to be agreed to by theParties. The Letter of Credit will be issued by an internationally recognizedbank reasonably acceptable to the Parties or via other means reasonablyacceptable to the Parties and will serve as a deposit for termination charges.This Letter of Credit shall include express language preventing any drawingagainst it except for the purposes of paying termination charges that are nottimely paid. The term of the Letter of Credit shall be for one (1) year, afterwhich the joint entity formed by the Parties will have the responsibility toreplace the Letter of Credit with security acceptable to the then currentbeneficiary.    In addition, GlobalePoint will provide cash in the amount of USD 50,000 for connection feesassociated with the interconnection with other networks and a cash amount to beagreed upon by the Parties as prepayment for 2 months’ costs for each VietnamE1 submarine half-circuit, ILPC, ILPC- Vietnam side, local leased line, longdistance leased line between Ho Chi Minh City and Hanoi, local transmissionpart of long distance leased line, local E-1 PSTN to be procured as well asdeposits required for US — side connectivity through to Hong Kong.

 

3.               Upon thecommencement of the actual passing and termination of minutes across thenetwork, the joint entity formed by the Parties will pay fees for terminationto [****] or the Other Entity or related parties, which fees shall beapproximately $[**] - $[**]  per minuteas follows: $[**] for the call, $[**] to [**] or Other Entity for a connectioncharge ($[*] as a connection charge for cellular calls), and $[*] as a fee toFusion’s Vietnam Marketing Representative. The $[**] fee referred to aboveshall be adjusted from time to time in accordance with market conditions**.**

 

4.               Be responsiblefor all financial obligations hereunder necessary to meet the terms and conditionsof this Agreement and to finance all equipment, installations, connectivity andservices provided by Fusion hereunder until such time as the underlyingprojects become self-financing.

 

5.    Notwithstanding thefinancial obligations as outlined in this Section B, the Parties agree thatGlobal ePoint’s financial obligations under this Agreement for deposits,license fees, connection fees, network costs, equipment costs, and other costsand fees described in this Section B (except for the Letter of Credit describedin Section B.2) shall not exceed USD $500,000. In addition, as outlined inSection B.2., Global ePoint shall have the responsibility of posting a Letterof Credit in the amount of USD $300,000. The Parties agree that should thecosts hereunder exceed the above amounts, Global ePoint shall not be liable forsuch costs unless, in its sole and unfettered discretion, Global ePoint reachesmutual agreement with Fusion on the payment of such additional costs requiredin order to meet the terms and conditions of this Agreement. In the event thatadditional monies are needed to fund a contract or project and there is not amutual agreement among the Parties and Global ePoint chooses not to fund theadditional monies, then upon Fusion’s securing the additional monies from anoutside source to fund the contract or project, Fusion shall reimburse GlobalePoint for all amounts expended on the 

 

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contractor project by Global ePoint (and not previously reimbursed), and Global ePointshall retain an interest equal to the percentage that is remaining investmentbears to the total value of the contract or project, but not less than a tenpercent (10%) interest if Global ePoint elects to withdraw its entire investmentfrom the contract or project.

 

II Profit-sharing Arrangement

 

1.               Global ePoint andFusion shall each receive fifty percent (50%) of the aggregate Net Profitgenerated through Fusion’s sale of VoIP minutes terminating to Vietnam to beaccounted for and distributed in accordance with the terms set forth in Section4 below.

 

2.               The Partiesshall make settlement with and payment to each other, as necessary, on amonthly basis, within ten (10) days after the end of each month.  Each monthly payment will be based upon themanagement accounts produced by the Parties. At the conclusion of each Party’s financial year, an adjustment will bemade to the payment of the preceding fiscal year to reflect any auditadjustments that were made based on the management accounts.  Any disputes will be resolved throughmutually agreed procedures.

 

3.               All unpaid, undisputedbalances shall accrue at the greater of 11⁄2% (one and one half percent) permonth 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 anyunpaid balances due under this Agreement. All payments, where applicable, shall be made via irrevocable wiretransfer 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 calculateprofit sharing:

 

(a.) “Total Revenue” isthat revenue accruing to Global ePoint and Fusion from the sale to any customerof VoIP minutes terminating in Vietnam through the Vietnam network contemplatedin this Agreement; provided that, in the case of sales to retail end users, therevenue assigned to any such sale shall be computed as if the sale were made atthe average sales price received by each of the Parties during the month inquestion from each of the Parties’ nonaffiliated wholesale customers to whichsales of said  Vietnam VoIP services aremade during the month in question.

 

(b.)”Net Profit”shall equal Total Revenue (as computed pursuant to Paragraph (a) above) lessthe following expenses:

 

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

•                  Terrestrial facility charges (local loops in USA and Vietnam)(seeParagraph I.A.8 above);

•                  Termination expense in Country and other expenses as set forth inParagraph B.3 above;

•                  Per minute fee paid to Fusion’s Marketing Representative to beinitially $0. [**] per minute.

•                  Fees and expenses for the other elements of expense described inParagraph I.A. and I.B. above

•                  Amortization over a twelve (12) month period (such amortization to bepaid 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 reasonablecost of negotiating and executing the Vietnam Agreements, such costs areapproximately $30,000 (see Paragraph I. A. 4. Above), and;

•                  Amortization over a twelve (12) month period (such amortization to bepaid monthly) of Global ePoint’s cash deposits, if any, pursuant to ParagraphB.2 above, it being understood that, if such deposits are in the form of aletter of credit or similar mechanism rather than cash, then there will be noamortization pursuant to this item but instead the letter of credit fee imposedby Global ePoint’s bank will be chargeable as a monthly expense to arrive atNet Profit; and,

•                  Fusion will be entitled to a network service and maintenance fee,switch, selling, billing, administrative and bad debt reserve fee of $.015 perminute on all traffic volumes.

 

If any of the foregoingexpenses are not paid from operating revenue of the Venture, the applicableexpense shall be reimbursed to the Party that provided the funding to pay suchexpense in accordance with the amortization schedule set forth in thisAgreement.

 

5.                The terms of any interconnection agreement enteredinto between the Venture and [****] or Other Entity shall include a terminationrate between

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approximately USD [***] andUSD [***] for cellular per minute, and the Parties agree to initially terminateone (1) million minutes per month and anticipate increasing termination oftraffic to Vietnam to at least 4-5 million minutes per month. It is furtheragreed that Fusion will utilize its best efforts to negotiate for a provisionin the agreement with [*****] or Other Entity that any license or otherauthorization to operate in Vietnam shall include a mutually-agreed to formulaunder which termination charges due and payable to the [****] or Other Entityshall be reduced from time to time in response to declining margins. If Fusionis unable to secure such an agreement from the government of Vietnam, both oreither of the Parties may terminate this Agreement immediately without penalty.If Fusion secures such an agreement from the government of Vietnam, but marketrates for VoIPservices terminating to Vietnam decline so as to materiallyaffect the economic feasibility of a specific contract or project covered bythis Agreement, as determined by either Party in its sole discretion, theneither Party may terminate this Agreement with respect to such contract orproject immediately without penalty.

 

 

# **III. General Terms & Conditions**

 

1.               References toFusion shall include Fusion Telecommunications International, Inc. and allparent, subsidiary or affiliated entities, as well as its (their) successorsand assigns.

 

2.               References toGlobal ePoint shall include Global ePoint, Inc. and all parent, subsidiary oraffiliated entities, as well as its (their) successors and assigns.

 

3.               (a) With regardto the termination arrangement introduced by Fusion to Global ePoint ascontemplated by this Agreement, Global ePoint shall not circumvent  Fusion in such a way that excludes Fusionfrom participating, or diminishes Fusion’s ability to participate, in suchtermination arrangement.

 

(b) With regard to any other business opportunity thateither Party is pursuing, in the event that either Party discloses to the otherParty in writing such other business opportunity, the other Party shall notcircumvent such Party in such a way that excludes such Party fromparticipating, or diminishes such Party’s ability to participate, in suchbusiness opportunity.  Furthermore, thisAgreement does not preclude either Party from entering into any otheragreement, venture, strategic alliance, or business opportunity relating toVoIP services and/or Vietnam.

(c) The terms of thisParagraph 3 shall survive expiration or termination of this Agreement.

 

4.  The Parties shall keep all oral and writteninformation 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 inrespect of its own confidential information. Neither Party shall make anypublic disclosure of the discussions or content of material exchanged betweenthe Parties unless mutually agreed to by the Parties in writing or unlessrequired by law.   The Partiesacknowledge that Fusion has disclosed to Global ePoint that it is negotiating anumber of separate telecommunications arrangements in Vietnam, and Fusionagrees that Global ePoint shall have a right of first refusal to participate inany such arrangement in Vietnam under terms and conditions similar to thisAgreement.

 

5.  The Parties may mutually agree to establisha Limited Liability Company through which to operate the arrangement describedherein.

 

6.               Term and Termination.  The term of this Agreement shall commence onthe Effective Date written above and shall continue for an initial term of oneyear thereafter.  At the end of theinitial term, this Agreement shall automatically renew for successive six (6)month terms unless any of the conditions for termination of this Agreementoccur.  Notwithstanding the foregoing,except for termination for one of the reasons described below, this Agreementshall not terminate as long as Fusion or the Venture is party to an agreementwith [****] or Other Entity for VoIP services to be terminated in Vietnam.

 

                                                In addition to any other terminationprovisions contained in this Agreement, either Party may terminate thisAgreement immediately upon written notice to the other Party, in the event of:

 

a)              a breach by theother Party of a material term, representation, warranty, or obligation of thisAgreement which breach is not cured (if curable) within thirty (30) calendardays after receipt of notice of breach from the non-breaching Party;

 

b)             fraud,deception or non-payment of obligations;

 

c)              a*ForceMajeure* event (as defined below) which prevents either Party fromperforming material obligations required under this Agreement for a period ofthirty (30) days or more;

 

d)             the otherParty’s insolvency, receivership, or voluntary bankruptcy; or the institutionof involuntary proceedings for bankruptcy against the other Party that are notstayed or dismissed within ninety (90) calendar days after the institutionthereof;

 

e)              a generalassignment by the other Party of all or substantially all of its business orassets for the benefit of creditors;

 

f)                substantiallyall of the other Party’s property, or that which is used in providing theServices, is or becomes subject to levy, seizure, assignment or 

 

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sale for or by any creditoror governmental agency, unless the judgment or debt is released or satisfiedwithin ten (10) business days; or

 

g)             a determinationby any governmental authority having jurisdiction or court of competentjurisdiction that the operations contemplated hereby are in violation ofapplicable legal restrictions.

 

7. Procedure Upon Termination.  Upon expiration or termination of thisAgreement for any reason. Fusion shall retain use of the network and will compensateGlobal 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 beenrecovered by Global ePoint pursuant to the amortization provisions of Section4. If Fusion chooses not to operate the network after termination of thisAgreement, Fusion will maintain ownership of any equipment and Global ePointshall retain ownership of any Letters of Credit, or other investments thatGlobal ePoint has contributed to this venture unless such project has becomeself-financing.

8.Regulatory Issues or Changes. Should the adoption of any law, rule,regulation, or agency or judicial determination by a court of competentjurisdiction materially affect either Party’s ability to perform its obligationspursuant to this Agreement, such Party may terminate this Agreement immediatelywithout 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 forthe payment of all taxes (including without limitation applicable VAT orwithholding taxes but excluding taxes based solely on the other Party’s netincome) and import duties (collectively, “Taxes”).  Should the paying Party claim any exemption of any sales, use, orother tax, such Party must provide the other Party with such proof ofexemption.  It will be the payingParty’s responsibility to ensure that its exempt status remains current, and inno event shall the other Party be liable for any taxes owed by the paying Partyin accordance with applicable law.

10.No Warranty. ALL SERVICES PROVIDED HEREUNDER AREPROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED ORSTATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO THE DESCRIPTION,QUALITY, MERCHANTIBILITY, NONINFRINGEMENT, COMPLETENESS, FITNESS FOR APARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING EXPRESSLY EXCLUDED ANDDISCLAIMED.

11.LIMITATION OF DAMAGES. In no event shall eitherParty be liable to the other Party for any indirect, special, incidental,punitive or consequential losses or damages, including without limitation, lostprofits and loss of goodwill arising in any manner from this Agreement or theuse of the Services, however caused and regardless of theory of liability.  This limitation will apply even if suchParty 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 itsindemnification obligations and confidentiality obligations, each Party’sliability to the other for all claims arising out of this Agreement shall belimited to the amount of fees paid by that Party under the terms of thisAgreement, whether such claim is based in contract, tort, or other legaltheory.

13.Compliance with Laws.  Neither Party shall use the Services provided hereunder (a) inviolation of any applicable export laws and regulations (including withoutlimitation any U.S. export laws and regulations); (b) in violation of anyapplicable national, state, or local laws or regulations, including withoutlimitation any laws governing the import of the Services or governing thecontent that either Party makes available via the Services provided hereunder;or (c) in ways that infringe the rights of others, or interfere with otherusers of the other Party’s network or other networks.  Either Party reserves the right to suspend the Services providedhereunder (or any portion thereof) with twenty-four (24) notice in the eventthat it believes that the other Party’s use (or any of the other Party’scustomer’s use), whether knowingly or not, of the Services is in violation ofthis section.  Either Party reserves theright to terminate the Services provided hereunder in the event of chronic oruncured violations of this Section. Nothing in this Section or in any other portion of this Agreement shallbe interpreted as permitting either Party to deny to the other Party access tothe Vietnam network; provided that any continuing use of said network afternotification of the violation of this Section 13 by one of the Parties shall beat the sole risk of such Party.

14.Indemnification. Each Party (for purposes of thisparagraph “Indemnifying Party”) shall indemnify and hold harmless the otherParty (“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, andcosts and expenses incidental thereto, which may be suffered by, accruedagainst, charged to or recoverable from the Indemnified Party or any of itsAffiliates, arising out of: (i) the Indemnifying Party’s breach of thisAgreement and/or any interconnection agreement entered into between the Ventureand [****] or Other Entity; (ii) a claim by a third party against theIndemnified Party or any of its Affiliates that the Services, or any portion oruse thereof, infringes or violates any patent, copyright, trademark, tradesecret or other intellectual property right; or (iii) damage to property orbodily injuries, including death, as a result of an intentional or negligent actor omission by the Indemnifying Party or any of its Affiliates in connectionwith the performance of this Agreement. The Indemnifying Party will not settleany claims, demands, suits, proceedings or actions without the IndemnifiedParty’s prior written consent, which consent shall not be unreasonably withheldor delayed.

15.Force Majeure. Neither Party shall be liable (except for payment for services rendered)for service interruptions, delays, failures to perform, damages, losses ordestruction, or malfunction of any equipment or any consequence thereof causeby or due to fire, flood, water, the elements, acts of God, war, and threat ofimminent war, utility curtailments, power failures, explosions, civildisturbances, 

 

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governmental actions, shortages of equipment forsupplies, unavailability of transportation, acts or omissions of third parties,or any other cause beyond either Parties’ reasonable control.  The Party so delayed or prevented fromperforming shall exercise good faith efforts to remedy any such cause of delayor cause preventing performance. The existence of such a situation for aduration longer than fifteen (15) calendar days shall entitle either Party toterminate this Agreement without liability to the other Party, except for anyundisputed payment for Services rendered, subject to prior written notice.

16.Entire Agreement - This Agreement constitutes the entire agreementbetween the Parties and supersedes all previous understandings, commitments orrepresentations concerning its subject matter. This Agreement may not be amended or modified in any way, and none ofits provisions may be waived, except by a writing signed by an authorizedofficer of each Party.

17.Severability - In the event that any one or more of the provisionscontained in this Agreement shall for any reason be held to be invalid, illegalor unenforceable in any respect, such invalidity, illegality orunenforceability shall not affect any other provision of this Agreement, butthis Agreement shall be construed as if such invalid, illegal or unenforceableprovision had never been contained herein. Further, in the event that any provision of this Agreement shall be heldto be invalid, illegal or unenforceable by virtue of its scope or period oftime, but may be enforceable by a limitation thereof, such provision shall bedeemed to be amended to the minimum extent necessary to render it valid, legaland enforceable or in the alternative both Parties shall negotiate in good faithto substitute for such invalid, illegal, or unenforceable provision a mutuallyacceptable provision that is consistent with the original intent of theParties.

18.Non-Waiver of Breach - Each Party may specifically waive any breachof this Agreement by the other Party, provided that no such waiver shall bebinding or effective unless in writing and no such waiver shall constitute acontinuing waiver of similar or subsequent breaches.  A waiving Party may at any time, upon notice in writing, directfuture compliance with the waived term or terms of this Agreement, in whichevent 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 bymessenger, overnight courier or certified mail, return receipt requested) orcompleted facsimile.  Notices shall beaddressed 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 changenotices:

 
| 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 itsaddress, telephone number or facsimile number.

20.Headings. The headings of the Sections and subsections of this Agreement areinserted for convenience only and do not constitute a part of this Agreementnor shall they be considered when interpreting or construing this Agreement.

21.Schedules.  The Schedules attached hereto are part of this Agreement as fullyfor all intents and purposes as if they were inserted in the body of thisAgreement.

22.Assignment.  This Agreement shall be binding on theParties and their respective affiliates, successors and permitted assigns.  Neither Party shall assign or transfer theirrespective rights or obligations under this Agreement to any other entitywithout the prior written consent of the other Party, which consent shall notbe unreasonably withheld. Notwithstanding the foregoing, either party may (i) assign its rights and delegate its obligationsunder this Agreement to a majority-owned or majority-controlled subsidiary oraffiliate (for the purposes of this Section 22, “affiliate” shall meanan entity controlling, controlled by, or under common control of such party) or (ii) assign its rights and delegate itsobligations under this Agreement to an affiliate or its successor inconnection with a merger, spin-off, divestiture, reorganization or sale ofall or substantially all of its assets, 

 

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and such assignee/successorshall remain liable for all of the rights and obligations hereunder; providedhowever, that if either Party makes such an assignment, such Party shallprovide reasonable notice to the other Party of such assignment.

23.Counterparts.  This Agreement may be executed in severalcounterparts, each of which shall be deemed an original, and all suchcounterparts together shall constitute but one and the same instrument.

24.Relationship.  Neither Party shall have the authority tobind the other by contract or otherwise make any representations or guaranteeson behalf of the other.  Both Partiesacknowledge and agree that the relationship arising from this Agreement doesnot constitute an agency, joint venture, partnership, employee relationship orfranchise.  Provider acknowledges andagrees that it is an independent contractor. The Parties acknowledge that, forall purposes, the project(s) described in this Agreement shall be operated andcontrolled by Fusion in its role as telecommunications provider.

 

25. Publicity.  No public statements or announcementsrelating to this Agreement shall be issued by either Party without the priorwritten consent of the other Party.

26.Governing Law.  The Parties expressly agree that thegoverning law of this   Agreement shallbe the substantive law of the State of New York without regard to orapplication of choice of law principles or the body of law relating to the UnitedNational Convention on the International Sale of Goods.  Each Party shall comply with all applicableUnited States and foreign laws, regulations and ordinances relating to theirperformance 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 SecuritiesExchange Commission.

 

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