AGREEMENT
FOR TELEPHONE SERVICE
THROUGH METROMEDIA<>ITT LONG DISTANCE TRAVEL CARD
Dated: 09/10/1990
Between
Executive TeleCard S.A. (hereinafter referred to as
"TeleCard"), whose address is Xxx xx xx Xxxxxxx 00, 0000
Xxxx, Xxxxxxxxxxx,
And
Communications Services, Inc. d/b/a Metromedia<>lTT Long
Distance, a corporation duly organized and existing under
the laws of the State of Delaware, USA and having its
principal office at 000 Xxxxx Xxxxx, Xxxxxxxx, X.X. 00000,
XXX (hereinafter referred to as "Metromedia<>ITT")
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1. The Service
TeleCard is engaged in the business of providing a
service which enables users of the public telephone
systems in certain countries other than the United
States of America (see Appendix I) to charge their
calls to a travel card (the "Service"). TeleCard agrees
to make the Service available for resale to holders of
Metromedia<>ITT Travel Cards. Metromedia<>ITT agrees to
resell the Service to its Travel Card holders on a per
request basis.
2. Term
The term of this Agreement shall be for two years and
commence on the first written above. Unless terminated
in accordance with Clause 9, Agreement shall
automatically renew for additional periods of 12
months.
3. Operations
3.1 When used in this Agreement, unless the context
otherwise requires, of the terms set forth
hereinbelow shall have the meaning as indicated
below:
a) "Metromedia<>lTT Card(s)" and "Metromedia<>ITT
Travel Cards
shall mean an unexpired calling card(s) bearing
the service xxxx (s) trade xxxx(s) and/or trade
name of Metromedia<>ITT and a design or style as
may, from time to time, determined
Metromedia<>ITT.
b) Cardholder(s)" shall mean the person or entity
whose name appears on the Metromedia<>ITT as the
authorized user thereof.
c) "Hot Card Notice" shall mean a notification
supplied daily
Metromedia<>ITT to TeleCard containing the card
numbers of
Metromedia<>lTT Cards which are to be blocked from
use.
d) "Stop List" shall mean the list to be supplied
daily
Metromedia<>ITT to TeleCard, containing the card
number
Metromedia<>ITT Travel Cards which are being
improperly used and any lost, stolen and/or
cancelled Metromedia<>ITT cards which then to be
blocked from use.
3.2 TeleCard will establish a system elected by
Metromedia<>ITT that Cardholders to use their current
Metromedia<>ITT number to telephone calls. If
Metromedia<>ITT selects the pin number security system,
TeleCard will assign these numbers at cost to
Metromedia<>ITT. If Metromedia<>ITT prefers verification of
valid cards be done via service center, the technicians from
both companies will work out details, costs to be shared
equally.
3.3 Telecard will adapt its software to accept the
Metromedia<>ITT numbering system and technical
specifications as outlined in Appendix II.
3.4 Telecard shall send to Metromedia<>ITT before the 29th
of each month a magnetic tape containing the information
necessary for Metromedia<>ITT to xxxx its Cardholders for
telephone calls made and charged through Telecard during the
preceding month.
3.5 Telecard will xxxx Metromedia<>ITT in the currency of
the United States of America ("US Dollars"). Where Telecard
must convert from another currency to US Dollars it shall
use the conversion rate contained in the Wall Street Journal
on the date of xxxx preparation.
3.6 Metromedia<>ITT shall pay Telecard in US Dollars all
charges recorded by Telecard minus the "discount fee" to
Metromedia<>ITT (see Article 7 of this Agreement), within
thirty (30) days after receipt of the magnetic tape
containing the billing information.
3.7 An annual service charge of US $9.95 will be billed to
Metromedia<>ITT for each Card accessing the Executive
Telecard dialing system. ETI will xxxx this fee annually in
the tapes it prepares and sends to Metromedia for billing.
This annual service charge will only be applied to each
account that actually uses the Card to access the Executive
Telecard dialing System the first time in each new calendar
year.
3.8 Metromedia<>ITT will establish its prices to the
Cardholders, invoice and collect from the Cardholder in
accordance with the normal procedures and practices of
Metromedia<>ITT.
3.9 Metromedia<>ITT shall be entitled to refuse payment of
a service charge imposed on a Cardholder, or a call made by
a Cardholder through Telecard, or if payment has been made,
to claim an immediate refund, if:
a) a call was made more than sixty (60) days
prior to the billing date, or,
b) the call was made with an expired Metromedia<>ITT Card
or a Notice call was made; or
c) the Cardholder refuses to make payment to
Metromedia<>ITT in respect of such call on the grounds of
poor transmission quality, or misdialing, the call was not
completed, or, the Cardholder did not authorize the call.
3.10 TeleCard, working within parameters to be set by
Metromedia<>ITT, is to develop a near-real-time capability
for identifying and controlling fraudulent usage. The basis
for determining potentially fraudulent usage could be, but
is not limited to, any of the following criteria:
- excessive attempts from a single CAVIAR unit;
- excessive minutes of usage per day/week/month;
- excessive duration per call;
- concurrent usage from multiple CAVIAR units.
Telecard is to provide the capability to
dynamically cancel codes upon detection as
potentially compromised.
3.11 TeleCard covenants, warrants and agrees that it
shall not make any extra or special charge in
connection with any call made by a Cardholder and
will xxxx according to published prices.
4. Marketing
4.1 After a mutually agreed upon "start date",
Metromedia<>ITT will distribute to all Cardholders
requesting the "Service" instructional material
illustrating how the Cardholder will use the
"Service" and such other promotional and user
material that Metromedia<>ITT deems suitable for
the promotion of the use of the "Service".
4.2 Metromedia<>ITT at its own cost and expense, shall
in its sole discretion, advertise, use direct
mail, engage in sales promotions and other related
marketing activities as Metromedia<>ITT deems
suitable to promote the use of the "Service". The
promotion of the "Service" will commence after the
mutually agreed upon start date.
4.3 TeleCard will provide free-of-charge technical and
marketing assistance in the production of
Cardholder information for use of the service.
4.4 TeleCard will supply to Metromedia<>ITT at
TeleCard's cost any user material, such as touch
tone pads, necessary for the Cardholder to use the
"Service" in some countries. The at cost prices to
Metromedia<>ITT, quantities and delivery deadlines
must be reasonable and agreed upon in advance or
periodically between the parties. The method of
distribution of such materials is left to the sole
discretion of Metromedia<>ITT.
5. Trademarks and Logos
5.1 TeleCard hereby warrants and represents that it
has the right to use and authorizes
Metromedia<>ITT for the term of this Agreement to
publish the name of TeleCard and the locations of
the " Service" in any advertising, newsletters and
directory of merchants or other publication of
Metromedia<> ITT.
5.2 Metromedia<>ITT agrees that the Executive TeleCard
International trademarks and logos belong to
TeleCard and will devote its best efforts during
and after the Term to protect TeleCard's interests
in these trademarks and logos.
5.3 Executive TeleCard International agrees that
Metromedia<>ITT trademarks and logos belong to
Metromedia<>ITT and will devote its efforts during
and after the Term to protect Metromedia<>ITT's
interests in these trademarks and logos.
5.4 Each Party shall obtain from the other Party
approval in writing, to publication, of any
advertising and/or promotional mat containing the
service marks and/or trademarks of the other
Party.
6. Independent Contractors
6.1 Metromedia<>ITT is not acting on behalf of
TeleCard.
6.2 TeleCard is not acting on behalf of
Metromedia<>ITT.
6.3 This Agreement does not in any way create the
relationship of venture, partnership, or principal
and agent between Metromedia and TeleCard.
TeleCard shall not act or attempt to act; or
represent i~ directly or by implication, as agent
for Metromedia<>ITT or in any manner assume or
create or attempt to assume or create any
obligation on behalf or in the name of
Metromedia<>ITT.
7. Compensation
For the marketing and administrative services rendered,
including billing to and collection from the
Cardholders, TeleCard will grant Metromedia<>ITT
"discount fee" of 396 of toll charges resulting from
the use of the "Service by the cardholders.
Metromedia<>ITT will deduct the "discount fee" from
each
payment made to TeleCard.
8. Confidentiality
8.1 As a result of carrying out this Agreement, the
Parties will have access to confidential material
and information belonging to the other Party,
including but not limited to, client lists,
employee lists, procedure manuals and techniques
and programs used by the company or planned to be
used in the future ("Confidential Information").
This Confidential Information has been acquired by
the Party after considerable expense, time and
energy. Each Party agrees to protect the Confide
Information from disclosure to third parties and
limit access to those employees and officers of
the receiving Party's organization who have need
to know the Confidential Information for the
purposes of this Agreement.
8.2 The obligations imposed upon the Parties in this
Article 8 shall not apply to Confidential
Information:
a. which becomes generally available to the
public through no wrongful act of the
Receiving Party; or
b. which is already lawfully in the possession
of the Receiving Party and not subject to an
existing agreement of confidentiality between
the Parties; or,
c. which is received from a third party without
restriction and without breach of this
agreement; or
d. which is independently developed by the
Receiving Party; or
e. which is furnished to a third party by the
Disclosing Party without similar restriction
to the third party's rights; or
f. which is disclosed pursuant to the binding
order of a government agency or a court so
long as the Disclosing Party provides the
other party with notice of such disclosure
prior to any such disclosure.
8.3 In the event of a breach of this Article B, the
Parties agree that the harm suffered by the
injured party would not be compensable by monetary
damages alone and, accordingly, that the injured
party shall, in addition to other available legal
or equitable remedies, be entitled to an
injunction against such breach.
9. Termination
9.1 Metromedia<>ITT can terminate this Agreement upon
120 days written notice to TeleCard prior to the
end of the initial period or the end of any
subsequent annual renewal period. TeleCard can
terminate this Agreement upon 120 days written
notice to Metromedia<>ITT prior to end of the
initial period or the end of any subsequent annual
renewal period.
9.2 Upon termination of this Agreement, discount fees
will continue to be paid as outlined in Article 7,
for the "Service" used by Cardholders before
termination, as long as billing and collection are
performed by Metromedia<>ITT.
9.3 Termination of this Agreement for any reason shall
not release either party hereto from any accrued
liability to the other party. Metromedia<>ITT's
right to terminate this Agreement as provided
above shall be without prejudice to any other
rights provided to it by law or equity.
9.4 Upon the termination of this Agreement, for
whatsoever reason, TeleCard shall cease to use or
refer in any manner to the service marks and/or
trademarks of Metromedia<>lTT or any other design
(hereinafter collectively referred to as the
"Marks") on or relating to Metromedia<>ITT and
shall return to Metromedia<>ITT all publications,
promotional materials or other items bearing the
Marks which have been sent to TeleCard pursuant to
this Agreement which are in Telecard's possession.
10. Assignment
10.1 Except as provided below, it is expressly agreed
that both parties not assign or transfer all or
any part of its rights under Agreement.
Metromedia<>ITT shall have the right to assign
agreement to any person or entity controlling,
controlled by or u~ common control with it. Any
other assignment or transfer of Agreement, or any
assignment or transfer of any interest in this
Agreement, without the prior written approval of
both parties, she: null and void and of no effect.
11. Warranties
11.1 TeleCard represents and warrants that it has the
requisite authority and holds the necessary
licenses, permits and certificates to provide the
Service in each jurisdiction in which the Service
is offered.
11.2 Metromedia<>ITT will not make any warranty to its
prospects and clients beyond those made by
TeleCard.
12. Hold Harmless
12.1 TeleCard shall indemnify, defend, protect and hold
Metromedia<>ITT and its parents, subsidiaries,
affiliates, employees, officers, directors, agents
harmless in respect of:
a) any and all losses, damages, liabilities or expenses
(including, without limitation, costs of judgment and
attorneys' fees) arising from or related to claims, actions
or proceedings resulting from TeleCard's violation of any
representation or warranty contained in this Agreement or
failure to perform or observe any of its obligations under
this Agreement;
b) any loss, damage or liability suffered or
incurred as a result of any failure or
omission of TeleCard to charge, report or pay
any taxes required by law to be charged,
reported or paid in connection with any
Metromedia<>ITT Card transaction contemplated
by this Agreement.
c) any loss, damage, liability or expense
(including, without limitation, costs of
judgment and attorneys' fees) suffered or
incurred as a result of claims for
infringement of trademark copyrights arising
out of this Agreement.
13 Force Majoure
TeleCard's performance under this Agreement shall be
suspended for as long as and to the extent the
performance is prevented if in certain countries the
local telephone authorities cannot or will not allow
the Service or in case of acts of governments or Force
Majeure.
14. Communications
14.1 Any notice or communication by either party to the
other shall be in writing and shall be deemed to
have been duly given if ether delivered
personally, by telefax transmission, or by prepaid
registered mail, addressed to the other party at
the appropriate address stated above, or at such
other address as such party hereto may hereafter
specify to the other party.
15. General Provisions
15.1 This Agreement shall be governed by and construed
in accordance with the laws of the State of New
York, U.S.A. and the Parties hereby submit to the
jurisdiction of the courts situated within the
State of New York for such purpose.
15.2 If any provision of this Agreement is held invalid
illegal or unenforceable in any respect, such
invalidity, illegality or enforceability of any
other provision hereof; provided that such
invalidity does not materially prejudice either
party in their respective rights and obligations
contained in the valid terms, covenants or
conditions.
15.3 The failure of either party to require the performance
of any of the terms of this Agreement or the waiver by
either party of any default under this Agreement shall not
prevent a subsequent enforcement of such term, nor be deemed
a waiver of any subsequent breach.
15.4 The use of any gender shall include all genders,
and the use of any number shall be construed as
the singular or the plural, as the context may
require.
15 .5 The obligations of each of the Parties under
this Agreement is subject to the condition that
the use of the Service is not in violation of any
applicable laws, rules, regulations or orders of
any governmental or quasi-governmental agencies
having jurisdiction over such service.
15.6 The terms and conditions of this Agreement
supersede all prior agreements, representations
and understanding between the parties with respect
to the subject matter hereof and shall not be held
to have been waived or, except as otherwise
specifically provided herein altered or
supplemented in any way except by in writing.
16. Arbitration
16.1 Any dispute concerning this contract or related
agreement, in particular as to their existence,
validity, interpretation, performance or non-
performance, whether arising before or after the
expiration of the contract, will be settled by
arbitration.
16.2 The seat of the arbitration will be New York, New
York.
16.3 The arbitration shall take place in accordance
with the Commercial Rules of Arbitration of the
American Arbitration Association applicable at the
seat of the arbitration.
16.4 Judgement upon the award rendered may be entered in any
court having jurisdiction or application and may be made to
such court for a judicial acceptance of the award and an
order of enforcement, as the case may be.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized
representatives as of the day and year first set forth
above.
COMMUNICATIONS SERVICES, INC. d/b/a
METROMEDIA<>ITT LONG DISTANCE EXECUTIVE TELECARD
By: By:
Title: Title:
Date: Date:
