WorldCom Service Agreement

EXHIBIT 10.13

WorldCom Service Agreement

ACCEPTANCE DEADLINE. This Agreement is binding upon execution by both parties. Acceptance of this Agreement by WorldCom is subject to Customer meeting WorldCom’s standard credit terms and conditions which may be based on commercially available credit reviews and to which Customer hereby consents. This Agreement shall be of no force and effect and the offer contained herein shall be deemed withdrawn unless this Agreement is executed by Customer and delivered to WorldCom on or before May 17, 2002.

This Agreement for WorldCom Services, together with any Attachments and Schedules made part hereof (“Agreement”), is made by and between MCI WORLDCOM Communications, Inc. (“WorldCom”), on behalf of itself and its affiliates and successors and Intercept, Inc. (“Customer”). WorldCom or its providing affiliate will provide to Customer the Services as set forth herein. The rates, discounts, charges and credits set forth herein shall be effective the first day of the second full billing cycle following the acceptance and execution of this Agreement by WorldCom. (“Effective Date”).

TERMS AND CONDITIONS

1.     SERVICES. WorldCom will provide to Customer the international, interstate, intrastate and local telecommunications services (“Services”) identified in Attachment A to this Agreement.

2.     TARIFF AND GUIDE. WorldCom’s provision of Services to Customer will be governed by WorldCom’s international, interstate and state tariffs (“Tariff(s)”) and WorldCom’s “Service Publication and Price Guide” (“Guide”), each as supplemented by this Agreement. This Agreement incorporates by reference the terms of each such Tariff and the Guide. When any Tariff provisions are canceled, Services will continue to be provided pursuant to this Agreement, as supplemented by the terms and conditions contained in the Guide, which will contain WorldCom’s standard rates, product descriptions, terms and conditions that formerly had been tariffed. The Guide is incorporated herein by reference and will be available to Customer on WorldCom’s internet website (www.worldcom.com) and at WorldCom’s offices during regular business hours at 500 Clinton Center Drive, Clinton, Mississippi 39056. The Company may modify the Guide from time to time, and any modification made will become effective and binding on Customer beginning on the first day of the next monthly billing cycle, provided that no change shall become effective and binding on Customer until it has been posted in the Guide for at least fifteen (15) calendar days. Tariffs may be modified from time to time in accordance with law. The contractual relationship between WorldCom and Customer shall be governed by the following order of precedence: (a) Tariffs; (b) provisions in this Agreement that expressly apply in lieu of, or that apply in addition to, provisions contained in Tariffs and/or the Guide; and (c) provisions contained in the Guide.

3.     TERM. The “Initial Term” shall begin on the Effective Date and end upon the completion of thirty-six (36) months. The Agreement will be automatically extended (“Extended Term”) on a month-to-month basis upon the expiration of the Initial Term, unless either party has delivered written notice of its intent to terminate the Agreement at least thirty (30) days prior to the end of the Initial Term. Either party may terminate this Agreement during the Extended Term upon thirty (30) days prior written notice. “Term” shall mean the Initial Term and the Extended Term.

4.     MINIMUM ANNUAL VOLUME COMMITMENT (“AVC”). Customer agrees to pay WorldCom no less than Seven Hundred Twenty Thousand Dollars ($720,000) in Total Service Charges (as hereinafter defined) during each Contract Year. A “Contract Year” shall mean each consecutive twelve-month period of the Term commencing on the Effective Date. During each monthly billing period of the Extended Term, Customer’s Total Service Charges must equal or exceed one-twelfth (1/12) of the AVC. “Total Service Charges” shall mean all charges for Services provided under this Agreement, after the application of all discounts and credits, and shall specifically exclude: (i) taxes, tax-like charges and tax-related surcharges; (ii) charges for equipment and colocation; (iii) charges incurred for goods or services where WorldCom or WorldCom affiliate acts as agent for Customer in its acquisition of goods or services; (iv) non-recurring charges; (v) “Governmental Charges” as defined below; and (vi) other charges expressly excluded by this Agreement.

5.     UNDERUTILIZATION CHARGES. If, in any Contract Year during the Initial Term, Customer’s Total Service Charges do not meet or exceed the AVC, then Customer shall pay: (a) all accrued but unpaid usage and other charges incurred under this Agreement; and (b) an “Underutilization Charge” equal to the difference between the AVC and Customer’s Total Service Charges during such Contract Year.

6.     EARLY TERMINATION CHARGES. If: (a) Customer terminates this Agreement during the Term for reasons other than Cause; or (b) WorldCom terminates this Agreement for Cause pursuant to the Sections entitled “Termination for Cause” or “Termination by WorldCom,” then Customer will pay, within thirty (30) days after such termination: (i) all accrued but unpaid charges incurred through the date of such termination, plus (ii) an amount equal to fifty percent (50%) of the AVC for each Contract Year (and a pro rata portion thereof for any partial Contract Year) remaining in the unexpired portion of the Term on the date of such termination, plus (iii) a pro rata portion of any and all credits received by Customer.

7.     RATES AND CHARGES. Customer agrees to pay the rates and charges set forth in this Agreement. In the event Customer receives services that are not the subject of rates, charges and discounts expressly set forth in this Agreement, Customer shall pay WorldCom’s standard rates as set forth in the Tariffs, (or Guide, if applicable) for those services. Further, for any services purchased after the expiration of the Term, Customer shall pay WorldCom’s standard rates as set forth in the Tariffs, (or Guide, if applicable) for those services.

8. GOVERNMENTAL CHARGES. WorldCom may adjust its rates and charges or impose additional rates and charges in order to recover amounts it is required or permitted by governmental or quasi-

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governmental authorities to collect from or pay to others in support of statutory or regulatory programs (“Governmental Charges”). Examples of such Governmental Charges include, but are not limited to, Universal Service funding, Primary Interexchange Carrier Charge cost recovery, and compensation payable to payphone service providers for use of their payphones to access WorldCom’s service.

9.     CHANGES TO THE GUIDE. If WorldCom makes any changes to the Guide or Governmental Charges which affect Customer in a material and adverse manner, Customer, as its sole remedy, may discontinue the affected Service without liability by providing WorldCom with written notice of discontinuance within sixty (60) days of such change. Customer shall pay all charges incurred up to the time of Service discontinuance. WorldCom may avoid Service discontinuance if, within sixty (60) days of receipt of Customer’s written notice, it agrees to amend this Agreement to eliminate the applicability of the material and adverse change. If a Service is discontinued hereunder, the Customer’s AVC will be reduced, as appropriate, to accommodate the discontinuance. A “material and adverse change” shall not include, nor be interpreted to include, the introduction of a new service or any new service feature associated with an existing service, including all terms, conditions and prices relating thereto.

10.     TAXES. All charges are exclusive of applicable taxes, tax-like charges, and tax-related surcharges (as such terms are defined in the Guide), which Customer agrees to pay. If Customer provides WorldCom with a duly authorized exemption certificate, WorldCom will exempt Customer in accordance with law, effective on the date WorldCom receives the exemption certificate.

11.     PAYMENT. Customer agrees to pay WorldCom for all Services within (30) days of invoice date. All payments must be made in U.S. Dollars. Payments must be made at the address designated on the invoice or other such place as WorldCom may designate. Amounts not paid on or before thirty (30) days from invoice date shall be considered past due, and Customer agrees to pay a late payment charge equal to the lessor of: (a) one and one-half percent (1.5%) per month, compounded; or (b) the maximum amount allowed by applicable law, as applied against the past due amounts. Failure to remit payment within thirty (30) days of invoice date may result, upon Customer notification, in interruption or cancellation of Services under this Agreement. If Customer does not give WorldCom written notice of a dispute with respect to WorldCom charges or taxes within six (6) months of the date of an invoice, such invoice shall be deemed to be correct and binding on Customer. At any time during the Term, WorldCom may request, and Customer shall furnish within ten (10) days of such request a bond or other form of security deposit to assure payment. Customer shall be liable for the payment of all fees and expenses, including attorney’s fees, reasonably incurred in collecting, or attempting to collect, any charges owed hereunder.

12.     TERMINATION FOR CAUSE. Either party may terminate this Agreement for Cause. As to payment of invoices, “Cause” shall mean the Customer’s failure to pay any invoice within thirty (30) days after the date of the invoice. For all other matters, “Cause” shall mean a breach by the other party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party, and the breach has not been cured within thirty (30) days after delivery of such notice.

13.     TERMINATION BY WORLDCOM. WorldCom may discontinue service and/or terminate this Agreement immediately upon notice to Customer if: (a) Customer fails, after WorldCom’s request, to provide a bond or security deposit; (b) Customer provides false information to WorldCom regarding the Customer’s identity, creditworthiness, or its planned use of the Services; (c) interruption of service is necessary to prevent or protect against fraud or otherwise protect WorldCom’s personnel, facilities or services; or (d) Customer interferes with WorldCom’s provision of services to any other customer.

14.     CONFIDENTIAL INFORMATION. Commencing on the date Customer executes this Agreement and continuing for a period of three (3) years from the termination of this Agreement, each party shall protect as confidential, and shall not disclose to any third party, any Confidential Information received from the disclosing party or otherwise discovered by the receiving party during the Term of this Agreement, including, but not limited to, the pricing and terms of this Agreement, and any information relating to the disclosing party’s technology, business affairs, and marketing or sales plans (collectively the “Confidential Information”). The parties shall use Confidential Information only for the purpose of this Agreement. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (a) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (b) is or becomes publicly known, through no wrongful act or omission of the receiving party; (c) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (d) is developed independently by the receiving party without reference to the Confidential Information, or (e) is required to be disclosed by law, regulation, or court or governmental order.

15.     DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, WORLDCOM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY WORLDCOM SERVICES, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. WORLDCOM SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.

16.     DISCLAIMER OF CERTAIN DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF TORT, CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

17.     LIMITATION OF LIABILITY. TH E TOTAL LIABILITY OF WORLDCOM TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT FOR ANY AND ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, SHALL BE LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY CUSTOMER; OR (B) THE AMOUNT PAID BY CUSTOMER TO WORLDCOM UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PERIOD PRIOR TO ACCRUAL OF THE MOST RECENT CAUSE OF ACTION. NOTHING IN THIS SECTION SHALL LIMIT WORLDCOM’S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT; OR (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY WORLDCOM’S NEGLIGENCE; OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSE D BY WORLDCOM’S NEGLIGENCE.

18.     ASSIGNMENT. Neither party may assign this Agreement or any of its rights hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided that WorldCom may assign this Agreement to an affiliate or successor without the Customer’s written consent.

19      SERVICE MARKS. TRADEMARKS AND NAME. Neither WorldCom nor Customer shall: (a) use any service mark or trademark of the other party; or (b) refer to the other party in connection with any advertising, promotion, press release or publication unless it obtains the other party’s prior written approval.

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20.     GOVERNING LAW. This Agreement shall be governed by the laws of the State of New York without regard to its choice of law principles. Non-U.S. Services shall be subject to applicable local laws and regulations in any countries where such Services originate or terminate, including applicable locally filed Tariffs.

21.      NOTICE. All notices, requests, or other communications (excluding invoices) hereunder shall be in writing and either transmitted via overnight courier, hand delivery or certified or registered mail, postage prepaid and return receipt requested to the parties at the following addresses. Notices will be deemed to have been given when received. Customer must provide sixty (60) days prior written notice for the disconnection of service.

To Customer: At the address provided on Page 1.

22.      ENTIRE AGREEMENT. This Agreement (and any Attachments and other documents incorporated herein by reference) constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other representations, understandings or agreements, whether oral or written, that are not expressed herein (except that Customer shall remain liable for unpaid amounts owed therein to WorldCom by Customer) including, without limitation, that certain WorldCom On-Net Service (Option 1) Agreement previously entered into by and between WorldCom and Customer, more particularly identified as bearing contract identifier number 325642, including the Amendment bearing contract identifier number 3497, and that certain WorldCom On-Net Service (Option 2) Agreement previously entered into by and between WorldCom and Customer, more particularly identified as bearing contract identifier number 302379-02, including the Amendment bearing contract identifier number 345474. Except as otherwise set forth herein, no amendment to this Agreement shall be valid unless in writing and signed by both parties

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Attachment A

Services

1.     Services. For the following Services, Customer shall pay the applicable rates and receive the applicable discounts listed below, if any. Customer shall not be eligible to receive any other additional discounts, promotions and/or credits (Tariffed or otherwise). For services that receive a discount off of the Guide / Tariff rates, any change in the Guide / Tariff rates will be reflected in the invoice for the next monthly billing cycle. For services that receive a postalized rate which fluctuates with changes in the Guide / Tariff, those rates will be reviewed on the first day of January during each calendar year of the Term, and adjusted by an amount equal to the same percentage by which the corresponding standard Guide / Tariff rates were adjusted during the immediately preceding calendar year. For services with fixed rates, the rates shall remain fixed for the Term. For services and charges not specifically set forth in this Attachment. Customer shall pay WorldCom’s standard Guide / Tariff rates or charges for the applicable service.

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