EXHIBIT 10.13
AT&T INDEPENDENT PRIVATE PAYPHONE
OWNER COMMISSION AGREEMENT
This Agreement is entered into between AT&T Corporation. (hereinafter
"AT&T") and Metro Phone Telecommunications, Inc. an independent private payphone
owner (hereinafter "IPP Provider"), with offices at 0000-000 Xxx. XX Xxxxx X-000
Xxxxxxxx XX 00000.
WHEREAS, AT&T desires to promote public telephone calling convenience for
its customers who wish to make telephone calling card calls and other types of
operator assisted calls while they are away from their homes and offices; and
WHEREAS, IPP Provider operates pay telephone stations which enable end user
customers to place telephone calls while they are away from their homes and
offices and is desirous of making the AT&T network accessible to those
customers.
NOW, THEREFORE, in consideration of the mutual benefits accruing to each
party, the parties hereby covenant and agree as follows:
1.0 DEFINITIONS
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1.1 "Sent Paid Calls" - means coin, Smart Card and prepaid debit card calls
made from IPP Provider Telephones.
1.2 "Non-Sent Paid Calls" - means collect calls, calls billed to a third
telephone number and calls billed to telephone calling cards or major credit
cards.
1.3 "AT&T Undesignated Non-Sent Paid Calls" - means Non-Sent Paid Calls
(excluding all 700, 800, 888, 900 and any derivative thereof, and Directory
Assistance calls), handled through AT&T's Operator Services Positioning Systems
("OSPS") and carried on the AT&T network without using an 800 access code such
as 800 OPERATOR, 800 CALL ATT and 000 000-0000.
1.4 "AT&T Revenues" - means billed revenues for AT&T Undesignated Non-Sent Paid
Calls originated from IPP Provider Telephones. AT&T Revenues for IPP Provider
Telephones located in areas where tracking of AT&T Undesignated Non-Sent Paid
Calls is not available shall be calculated pursuant to the Commission Payment
Plus set forth in Attachment B hereto.
1.5 "Telephone(s)" - means IPP Provider coin or coinless pay telephone stations
at the National Association of R.V. Parks and Campgrounds ("ARVC") locations
listed in Attachment A/C that meet all of the requirements set forth in Section
3 hereto.
1.6 Attachment A/C - provides payee information, address(es) at which the
Telephone(s) are located ("Location"), and the line numbers for Telephones which
are routing all undesignated interLATA and/or intraLATA Non-Sent Paid Calls to
the AT&T network.
1.7 Attachment B - states the commission payment plan and rate schedule for IPP
Provider Telephone(s).
1.8 LEC - means any company that is tariffed to provide local exchange service.
1.9 Access Line - means any approved public Telephone tariffed access line.
2.0 IPP PROVIDER
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2.1 IPP Provider represents and warrants that it is authorized to operate each
of the Telephones listed on Attachment A/C, that it owns more than a 50% asset
or equity interest in the Telephones that are included on Attachment A/C, and
that such Telephones are not owned or controlled by others. IPP Provider
further represents and warrant that it complies and will continue to comply with
all state and federal regulatory requirements relating to the operation of such
Telephones.
2.2 IPP Provider represents and warrants that it is authorized to choose the
operator services provider for each Telephone.
2.3 IPP Provider represents and warrants that it shall be responsible for the
acquisition, installation, maintenance and coin collection for the Telephones
listed in Attachment A/C; for the payment of all Local Exchange Company (LEC)
access line and usage charges; and for the handling of the refunds of Sent Paid
Calls associated with the operation of such Telephones.
2.4 Each Telephone shall be connected to an Access Line as provisioned under
tariff by the serving Local Exchange Company.
2.5 All Undesignated Non-Sent Paid interLATA calls from the Telephones shall be
handled through AT&T's ("OSPS") and carried on the AT&T network. Nothing in this
Agreement shall affect IPP Provider's right to arrange for the provision of
Sent-Paid calls from the Telephones, however, IPP Provider shall not utilize any
manual or mechanical procedure to (a) divert undesignated Non-Sent Paid calls to
any other carrier; (b) convert such calls into Sent-Paid ("1+) calls; or (c)
convert AT&T designated Non-Sent Paid Calls to any other call type.
2.6 Each Telephone shall have call screening capability (where available from
the LEC) to identify the Telephone to operators as a privately owned public
telephone.
2.7 IPP provider shall make all necessary arrangements so that each Telephone
allows access to the 800, 950, and 10XXX access code numbers of other providers
of operator services, as required by the Telephone Operator Consumer Services
Improvement Act of 1990, the Federal Communications Commission, or any
applicable state law or regulation.
2.8 IPP Provider shall provide dialing instructions at or near each Telephone
which will inform callers how to make AT&T Undesignated Non-Sent Paid Calls from
such Telephones.
2.9 In jurisdictions where AT&T is certified to provide intraLATA and/or local
service for Non-Sent Paid Calls, each Telephone will permit access to the
"10288" dialing code to enable end users to place intraLATA AT&T calls.
2.10 At such time as AT&T has regulatory authority to handle undesignated
intraLATA and/or local Non-Sent Paid Calls through AT&T's OSPS and to carry such
calls on the AT&T network, IPP Provider shall send traffic to AT&T. IPP Provider
shall cause all undesignated intraLATA and/or local Non-Sent Paid Calls to be
routed to AT&T's OSPS for carriage on the AT&T Network. IPP Provider shall
notify AT&T by completing an Attachment A/C to indicate those Telephones that
are routing all undesignated intraLATA and/or local Non-Sent Paid Calls so the
AT&T network. This provision shall not apply to Telephones: (i) covered by a
binding contractual commitment requiring such undesignated intraLATA and/or
local Non-Sent Paid Calls to be delivered to another carrier until such
commitment expires or can be terminate without a breach of contract or payment
of termination charges; or (ii) if such routing of calls to AT&T violates a
state or federal law or regulation.
2.11 IPP Provider shall be the customer of record for all Telephones covered by
this Agreement. AT&T shall not be required to pay commissions relating to any
Telephone unless IPP Provider, upon request from AT&T, has provided AT&T with
the appropriate LEC xxxx or LEC Letter of Verification indicating that IPP
Provider is the customer of record for such pay telephone station ("verification
information") within thirty (30) days of AT&T's request.
2.12 IPP Provider will provide AT&T or its designee with reasonable access to
the Telephones for the purpose of observing and making test calls from such
Telephones.
2.13 IPP Provider may, in its sole discretion, disconnect any Telephone line
covered by this Agreement. IPP Provider shall provide AT&T with thirty (30)
days' notice of a disconnected Telephone line.
2.14 Attachment A/C may be modified pursuant to the mutual consent of the
parties during the term of this Agreement, except that, AT&T, in its sole
discretion, reserves the right to refuse a Location and/or Telephone by not
accepting a modification to Attachment A/C.
3.0 AT&T
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3.1 AT&T will pay IPP Provider a commission on revenues from AT&T Undesignated
Non-Sent Paid Calls generated by Telephones which meet all of the requirements
set forth herein. Commissions shall be calculated and paid as set forth in
Attachment B. No commission shall be due from AT&T for AT&T Undesignated Non-
Sent Paid Calls on any Telephone for any period that the Telephone fails to meet
all of the requirements set forth herein, including (but not limited to) the
access
requirements of the Telephone Operator Consumer Services improvement Act of
1990. No commissions shall be paid on revenues from AT&T undesignated Non-Sent
Paid interLATA and/or intraLATA calls placed by user dialing as AT&T access code
number (e.g., 10288) unless all undesignated Non-Sent Paid interLATA and/or
intraLATA calls from the Telephone are being routed to the AT&T network and such
Telephone appears on Attachment A/C together with a complete full address of the
physical location of each telephone.
3.2 AT&T, in its sole discretion, reserves the right to: (i) refuse to add (ii)
remove a Location and/or Telephone from this Agreement, (iii) delete any
Telephone which does not generate any "0+" AT&T Revenue for a period of ninety
(90) days, or fails to meet all of the requirements set forth herein. AT&T shall
pay applicable commissions through the date of removal.
3.3 AT&T shall have the right to randomly sample and conduct physical
compliance audits of the Telephones subject to this Agreement. To be "in-
compliance", a Telephone must meet all the requirements set forth in Section 3.0
above in addition to all other provisions contained in this Agreement. AT&T may,
in its sole discretion, suspend and cease paying commissions on any non-
compliant Telephone(s) and remove such Telephones from this Agreement. At the
time of suspension. AT&T shall provide the IPP Provider with a written summary
of the reasons for each Telephone's non-compliance. IPP Provider may bring a
non-complying telephone into compliance and request AT&T to re-instate the
telephone under the terms of this Agreement. AT&T may, in its sole discretion,
re-instate the Telephone; however, AT&T will not begin paying commissions for
that Telephone until the next full commission cycle, even if a Telephone is
reinstated during a commission cycle.
4.0 TERM AND TERMINATION
--------------------
4.1 This Agreement will begin as of the 16th day of the month after it is
signed by both parties and shall continue for a period of three (3) years
("Initial Term").
4.2 Notwithstanding Section 4.1 above, AT&T reserves the right to terminate
this Agreement immediately, by written notice to IPP Provider, if AT&T
determines, in its sole discretion, that AT&T's tariffed services may be
adversely affected under this Agreement. Both parties reserve the right to
terminate this Agreement if either determines that this Agreement may adversely
affect its public image or damage its reputation or goodwill.
4.3 Either party may terminate this Agreement with respect to any or all
Telephones or Locations listed in Attachment A/C by sending written notice to
the other party if the Federal Communications Commission, a State Public
Utilities Commission or a court of competent jurisdiction issues an order or
ruling which contains terms or conditions which materially and adversely affect
this Agreement, its profitability to either party, or either party's ability to
perform its responsibilities as set forth herein. Such termination shall not
give rise to any claims for damages; provided, however, that each party shall
comply with its obligations hereunder up to the date of termination.
5.0 SIGNAGE AND TRADEMARKS
----------------------
5.1 IPP Provider shall post on or near each Telephone, in plain view of
consumers, a notice identifying AT&T as the provider of operator services for
such Telephone, together with all other information required to be provided
under any applicable federal or state law or regulation and the Telephone
Operator Consumer Services Improvement Act of 1990.
5.1.1 IPP Provider agrees that AT&T is the only "0+" InterLATA company
whose name and/or logo shall appear on the Telephones and enclosures;
5.1.2 IPP Provider agrees that if AT&T provides signage, such signage
shall remain the property of AT&T and IPP Provider will remove and return such
signage to AT&T upon the deletion of any Telephone(s) from this Agreement during
its Term or upon termination of this Agreement; and
5.1.3 IPP Provider shall not have the right to use any trademark, name,
trade name, service xxxx or logo which AT&T may use or have the right to use, or
any marks, names or logos confusingly similar thereto in its promotional,
advertising or other efforts in reference to activities undertaking under this
Agreement without review and written approval by AT&T prior to publication and
use thereof. Such review process shall take no longer than thirty (30) days, at
which time AT&T will notify IPP Provider whether or not approval will be given.
6.0 INDEMNIFICATION
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6.1 Both parties shall indemnify and hold the other harmless against any loss,
cost, claim, injury, expense or liability, including reasonable attorney's fees
resulting from any breach of the warranties set forth in this Agreement.
6.2 IPP Provider shall indemnify and hold AT&T harmless against any loss, cost,
claim, injury, expense or liability, including reasonable attorney's fees
resulting from any claim by any third party for injury to person or property
arising out of IPP Provider's ownership or operation of the Telephones and
associated equipment, except insofar as such injury is exclusively the result of
the negligence of AT&T or its agents and any claim against AT&T by any third
party for commissions reletting to the Telephones.
7.0 LIMITATION OF LIABILITY
-----------------------
7.1 Except in cases involving willful and/or wanton conduct, AT&T's liability
to IPP Provider under this Agreement shall be limited to its obligations to pay
commissions as set forth in Section 3.0 above and its obligations pursuant to
applicable tariffs.
7.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST
PROFITS (WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGE), BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS
AGREEMENT.
8.0 ASSIGNMENT
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8.1 Any assignment by IPP Provider of any right, obligation or duty, in whole
or in part, or of any other interest hereunder, shall be void. All obligations
and duties of either party under this Agreement shall be binding on all
successors in interest or assigns of such party.
9.0 INSOLVENCY
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9.1 AT&T shall have the right immediately to terminate this Agreement if IPP
Provider commences any proceeding under Chapters 7 or 11 of the United States
Bankruptcy Code or any other proceeding seeking relief from creditors or the
reorganization of composition of debts or the liquidation and distribution of
assets, including by not limited to, any assignment for the benefit of creditors
or the making of a proposal for the composition of debts. AT&T shall also have
the right immediately to terminate this Agreement if any third party commences a
proceeding against IPP Provider of the nature described above, and such
proceeding shall not have been dismissed within sixty (60) days of the
commencement of such proceeding.
10.0 PROPRIETARY INFORMATION
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10.1 The parties expressly agree that all information, including, without
limitation, lists of customer names, addresses and usage data, relating to AT&T
Undesignated Non-Sent Paid Calls remains the property of AT&T and must be kept
confidential by the IPP Provider.
10.2 Other information deemed to be proprietary which is provided by one party
to the other in connection with this Agreement shall be marked in a manner to
indicate that it is considered proprietary or otherwise subject to limited
distribution. If such information is provided orally, the disclosing party shall
clearly identify it as proprietary at the time of disclosure and reduce such
information to tangible form within ten (10) business days in which case such
information shall be subject to the restrictions set forth in Section 10 herein.
10.3 With respect to the proprietary information defined in Sections 10.1 and
10.2 above, the party receiving such information shall hold the information in
confidence and protect it with at least the same degree of care it normally
exercises to protect its own proprietary information of a similar nature;
restrict disclosure of such information to its employees or agents with a need
to know and not disclose it to any other parties; advise those employees and
agents of their obligations with respect to such information; and use such
information only for the purposes of this Agreement.
10.4 The party receiving such information shall have no obligation to preserve
the proprietary nature of any information which: was previously known to it free
of any obligation to keep it confidential; is disclosed to third parties by the
other party without any restriction; is or becomes available to the public other
than by unauthorized disclosure; or is independently developed by it.
10.5 This Section 10 and the confidentiality obligations imposed hereunder
shall survive and remain in effect notwithstanding the termination of this
Agreement.
11.0 NOTICES
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11.1 All notices which may be given by any party to the other party shall be in
writing and shall be deemed to have been duly given on the date delivered in
person or deposited, postage prepaid, in the United States mail via Certified
Mail or overnight courier, return receipt requested. If personal delivery is
selection as the method of giving notice under this Section, a receipt of such
delivery shall be obtained.
11.2 The address to which notices are to be given by either party are as
follows, which may be changed by written notice given by such party to the other
party pursuant to this Section.
IPP Provider: Metrophone Telecommunication, Inc. To AT&T:
0000-000 Xxx XX Xxxxx X-000 ______________________
Xxxxxxxx XX 00000 ______________________
Attention: Xxxx Xxxxxxxxxxx Attention: ___________
12.0 FORCE MAJEURE
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12.1 Either party's delay in, or failure of, performance under this Agreement
shall be excused where such delay or failure is caused by an act of God, fire
or other catastrophe, work stoppage, delays or failure to act of any carrier or
great or any other cause beyond a party's direct control.
13.0 NO WAIVER
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13.1 The failure of either at any time to enforce any right or remedy available
to it under this Agreement with respect to any breach or failure by the other
party shall not be construed to be a waiver of such right or remedy with respect
to any other breach or failure by the other party.
14.0 NO THIRD PARTY BENEFICIARIES
----------------------------
14.1 This Agreement shall not provide any person not a party to this Agreement
with any remedy, claim, liability, reimbursement, commission, cause of action or
other right in excess of those existing without reference to this Agreement.
15.0 INDEPENDENT CONTRACTOR
----------------------
15.1 It is expressly understood and acknowledged that the parties are entering
into this Agreement as independent contractors and that this Agreement is not
intended to create, nor shall it be construed as creating, any type of
partnership, joint venture or franchise relationship between AT&T and IPP
Provider.
16.0 GOVERNING LAW
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16.1 This Agreement shall be governed by and interpreted in accordance with the
domestic laws of the State of New York. The parties agree to be subject to the
jurisdiction of the Courts of the State of Washington.
17.0 SEVERABILITY
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17.1 If any provision of this Agreement is held invalid, unenforceable or void,
the remainder of the Agreement shall not be affected thereby and shall continue
in full force and effect.
18.0 ENTIRE AGREEMENT: AMENDMENTS
----------------------------
18.1 This Agreement and any Attachments appended hereto constitute the entire
understanding between the parties and supersedes all prior understandings, oral
or written representations, statements, negotiations, proposals and undertakings
with respect to the subject matter hereof.
18.2 No amendment to this Agreement shall be valid except as it is in writing,
refers specifically to this Agreement, recites that it is an amendment thereto,
and is subscribed to by authorized representatives of the parties. Attachment
A/C may be modified by Agent requesting and AT&T agreeing to and acknowledging
such modification.
19.0 HEADINGS
--------
19.1 The headings in this Agreement are included for convenience only and shall
not be construed to define or limit any of the provisions contained herein.
IN WITNESS WHEREOF, the parties have set their hands as of the day and year
first above written, acting through their authorized representatives.
METRO-PHONE TELECOMMUNICATIONS, INC. AT&T COMMUNICATIONS, INC.
/s/ Xxxx Xxxxxxxxxxx /s/ Xxxxxx X. Xxxxx
___________________________________ _________________________________________
Authorized Signature Authorized Signature
Xxxx Xxxxxxxxxxx Xxxxxx X. Xxxxx
___________________________________ _________________________________________
Typed or Printed Name Typed or Printed Name
Pres & CEO Sales Manager
___________________________________ _________________________________________
Title Title
3-4-1998 3/16/98
___________________________________ _________________________________________
Date Date
00-0000000
_______________________________________
Federal Tax ID#
