Via Email and Federal Express
Jeffrey M. Haber
425 Broadhollow Road, Suite 416
Melville, NY 11747
Tel: 631.282.8985
Re: Response to Letter Dated August 29, 2023
September 6, 2023
Dear Mr. Haber:
This letter is in reference to the Messaging Technology Services Agreement dated
December 9, 2019 (the “Agreement”) between Viahub Communications Corporation
("Viahub") and Syniverse Technologies, LLC ("Syniverse") and in response to your letter
dated August 29, 2023. Terms used in this letter have the same meaning as in the
Agreement.
As you are aware, Syniverse served your client valid notice on August 8, 2023, informing
Viahub of its material obligation to migrate at least fifty percent (50%) of its messaging traffic
to the Messaging Hub Service by that date. Purporting to “reject” the notice of breach does
not relieve your client of the obligation to comply with the terms of the Agreement. To the
extent Viahub’s failure is not remedied, Syniverse will terminate the Agreement on
September 7, 2023. Please note that Section 23.1(b) of the Agreement does provide
Syniverse the right, in the event of termination due to Viahub’s breach, to invoice your client
in the amount of one million five hundred thousand dollars ($1,500,000.00).
In response to your arguments made regarding the Service Level Agreement (“SLA”),
nothing in the Agreement states or implies that Viahub’s traffic commitments are
dependent upon the start of the SLA. Schedule 8 of the Agreement explicitly states the
obligation of “Viahub to move 50% of messaging traffic to the Messaging Hub Service” by
the “Acceptance Date (Milestone 4) + 1 month.” The start of the SLA is just as explicitly set
forth in Section 4.3 as “the start of the first complete month commencing after the
Acceptance Date.” If the parties intended for the timing of the messaging traffic
commitment to be tied to the start of the SLA for the Services, the Agreement would state
that.
In response to Viahub’s demand for the provision of geo-redundant data centers,
Addendum No. 2 to the Agreement dated April 1, 2021 (the “Addendum”), Section 1.1
states “the Parties agree that, despite the provisions of clause 8.3 a) of the Master
Agreement where [Viahub] has an obligation to provide geo-redundant data centers for
hosting [Syniverse’s] Services, the Services will be initially implemented by [Syniverse] at a
single site in Dubai.” While the Addendum outlines additional changes to the Agreement
that are consequential to the single-site implementation, nowhere in this Addendum does
it amend Viahub’s obligations associated with migration of messaging traffic.
The Addendum does address the future implementation of the Services with a second site
in Abu Dhabi “as soon as possible” and only following agreement of a new Project Plan and
User Acceptance Tests, which have not been agreed between the Parties. Please note that
if and when Viahub successfully remedies its breach and avoids termination of the
Agreement, Syniverse is more than willing to move forward with the requirements
associated with a second site implementation as required under the Agreement.
1
Putting aside the issue of the legality of your client obtaining apparent recordings of Mr.
McRae without his consent in the State of Florida where such an activity is a felony, Mr.
McRae’s alleged statements do not relieve or otherwise excuse Viahub from its obligations
under the Agreement. The contract is clear that “[n]o variation of this Agreement shall be
effective unless it is in writing and signed by the Parties.” See Section 27.1. Under New York
law, a party may waive a contract provision prohibiting oral modification of the contract only
if the alleged oral modification induced a significant detrimental reliance through conduct
that is not compatible with the underlying written agreement. See, e.g., Rose v. Spa Realty
Assocs., 42 N.Y.2d 338, 344 (1977); Matter of Irving O. Farber, PLLC v. Kamalian, 16 A.D.3d
506, 506-07 (App. Div. 2005). The Second Circuit has called this a “stringent standard.” L&B
57th St., Inc. v. E.M. Blanchard, Inc., 143 F.3d 88, 93 (2d Cir. 1998) (applying New York law).
Viahub cannot make this showing of detrimental reliance through actions incompatible with
the Agreement as written, and Viahub’s letter does not identify any such specific actions
that it took and would not have taken but for the alleged oral modification.
While Syniverse has real doubts given the timing of this correspondence regarding
Viahub’s ability to timely remedy the aforementioned material breach, Syniverse will
continue to comply with the terms of the Agreement until the expiration or termination
thereof.
Regards,
Rachel Jackson
Senior Vice President and General Counsel
cc: legal file; Haydn Pinnell
