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EXHIBIT 10.12
MCI TELECOMMUNICATIONS
CORPORATION
[MCI LOGO]
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
000 000 0000
SECOND AMENDMENT
This First Amendment is made this 4th day of February 1997 between LONG DISTANCE
DIRECT, INC. ("Customer") and MCI TELECOMMUNICATIONS CORPORATION ("MCI").
WHEREAS, Customer and MCI entered into a Carrier Agreement signed by Customer on
March 14, 1996, and subsequently accepted by MCI on March 26, 1996, as Amended
by the First Amendment signed by Customer on September 23, 1996 and subsequently
accepted by MCI on September 27, 1996, (together, the "Agreement").
WHEREAS, Customer and MCI desire to enter into this Second Amendment for the
purpose of amending the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Customer and MCI agree as follows:
1. The following paragraph is hereby added as the new Paragraph 3(g) of the
Agreement:
3(g) 1) Customer acknowledges that it has been informed by MCI that the
Carrier Network Service product does not support a multiple PIC for a
single ANI. A "multiple PIC" is where: (i) the end user selects one
carrier for interLATA and a different carrier for intraLATA and/or
international or (ii) the end user selects one carrier for operator
service calls dialed with the 0+, 01+ or 00- dialing pattern and a
different carrier for 1+ long distance calls.
2) Customer shall comply with Section 64.1150 of the FCC's Rules and
Regulations, as well as other applicable laws or regulations pertaining to
letter of agency requirements for a primary long distance carrier change.
Customer represents that during the term of this Agreement it shall not
submit any ANI for Carrier Network Service unless Customer has been
selected as the carrier for interLATA, intraLATA and international traffic
FOR ALL TRAFFIC TYPES for the ANI. Customer understands that all ANI's
submitted to MCI for Carrier Network Services will carry all traffic for
such ANI (including but not limited to interLATA, intraLATA,
international, interstate, 1+ and operator assisted) except for 10XXX
calls directed to another carrier's CIC. ANI's with multiple PICs
submitted by Customer to MCI for Carrier Network Services shall be deemed
an unauthorized use of MCI's Carrier Network Services.
3) If Customer submits an ANI(s) with a multiple PIC to MCI for
Carrier Network Service, Customer shall be fully liable to MCI and all
third parties for any claims, liability or expenses, including but not
limited to fines and penalties, arising out of Customer's submission of an
ANI with a multiple PIC. MCI shall not be liable to Customer or any third
party for any damage or loss due to Customer's submission of ANI's with
multiple PICs. MCI shall have no liability to Customer or any third party
for revenue that might have been earned but for MCI's inability to support
multiple PIC for a single ANI.
4) Customer agrees to defend and hold MCI free and harmless from any
loss, claim, damage, liability, cost or expense (including without
limitation court costs, legal expenses and counsel fees) that MCI may
become liable for by reason of Customer's submission of ANI(s) for Carrier
Network Service.
2. The following paragraph is hereby added as the new Paragraph 3(h) of the
Agreement:
3(h) Customer shall receive Call Traffic Records pursuant to Exhibit F of
this Agreement.
3. The attached exhibit is hereby added as the new Exhibit F of the
Agreement.
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4. The terms of this Second Amendment will become effective, following
execution by both parties, as of the first full month following execution.
5. Except as expressly provided in this Second Amendment, all of the terms
and conditions contained in the Agreement shall remain in full force and
effect.
6. This Second Amendment, together with the Agreement, is the complete
agreement of the parties and supersedes all other prior agreements and
representations concerning its subject matter.
7. This offer will remain open and be capable of being accepted by Customer
until February 17, 1997. Any and all prior offers made to Customer,
whether written or oral, shall be in writing and signed by both parties.
LONG DISTANCE DIRECT, INC. MCI TELECOMMUNICATIONS
CORPORATION
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxx
-------------------------- -----------------------------------
Signature Signature
XXXXXX X. XXXXX
EXECUTIVE DIRECTOR/
Xxxxxx Xxxxxxx CONTROLLER, FINANCE
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Printed Name Printed Name
President
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Title Title
2/4/97 3/5/97
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Date Date
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EXHIBIT F
CALL TRAFFIC RECORDS
A. CALL DETAIL RECORDS
Customer may select between weekly magnetic tapes or daily files to receive call
detail record ("CDR(s)") information and may also choose to receive monthly
magnetic tapes. Customer may choose ONE of these options (weekly magnetic tapes
or daily files), but not both, by providing MCI written notice thereof. Customer
may change the selected option during the Service Term of the Agreement by
providing MCI with ninety (90) days prior written notice. Daily CDRs are
available only for Carrier Network Service Interstate, Intrastate and
International Outbound usage. Weekly and monthly magnetic tapes are available
for Carrier Network Services Interstate, Intrastate and International Outbound
and Inbound usage.
The above tapes shall be provided to Customer in MCI format and at applicable
Tariff and state tariff rates. MCI makes no guarantee that such tape is
compatible with any billing systems Customer may choose to use. Further, MCI
assumes no obligation to conform the magnetic tape format to become compatible
with any billing system of Customer or Customer's billing agent.
B. WEEKLY MAGNETIC TAPES
Customer may receive CDRs from MCI on a weekly basis via magnetic tape in the
same record layout format as the MCI monthly billing magnetic tape.
Weekly magnetic tapes consist of and feature the following:
1. Customer shall receive one magnetic tape for each of the following
products: Carrier Network Services Interstate, Intrastate and
International Outbound; Carrier Network Services Interstate, Intrastate
and International Inbound; and Operator Services. MCI will use reasonable
efforts to provide this tape(s) to Customer one (1) week after the usage
occurs. The traffic period contained in the magnetic tape varies in
accordance to the type of usage as stated in the table below:
TYPE OF USAGE CALL TRAFFIC PERIOD
------------- -------------------
Outbound Saturday through Friday
Inbound Friday through Thursday
Calling Card Wednesday through Tuesday
Due to timing of the extract, the tape may not contain complete data for
the week. The remaining data for such days will be contained in the
following week's tape.
2. Based on the nature of weekly magnetic tape processing, traffic may be
in "Error Suspense", defined as the failure to process a record due to
lack of current account information. Error Suspense is due to (a) the
timeliness of order entry reference file extracts and (b) traffic rate
table updates.
Normal Error Suspense accounts for approximately one percent (1%) of total
traffic for a given week and will appear on a later tape with the original
date of the call specified.
3. For invoicing cycles ending mid-week (i.e. the 31st day of the month is
a Wednesday), two (2) magnetic tapes will be generated for that week; one
for the traffic for the prior month's invoicing cycle and one for traffic
for the current invoicing period. This will allow Customer to reconcile
the weekly tapes to its monthly invoice.
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4. Each new ANI may incur up to a two (2) week delay prior to appearing in
the weekly magnetic tape process. MCI order entry file updates occur on
the first (1st) and fifteenth (15th) of each month and produce extracts to
weekly magnetic tape processes. For example, ANIs installed May 20, will
not appear on the weekly magnetic tape until after May 30.
5. The weekly magnetic tape service is a value-added product and is
provided for fraud detection purposes only. MCI shall have no obligation
to research or track any discrepancies between monthly magnetic tape and
the weekly call detail records (but MCI may elect to do so, in its sole
discretion).
6. MCI will use the monthly magnetic tape to invoice Customer.
7. Customer is responsible for paying the monthly invoice in full in
accordance with the terms specified in this Agreement, regardless of any
discrepancies between the monthly invoice and the weekly magnetic tapes.
C. DAILY CDRs
Daily CDRs are only available for outbound and toll free usage through the MCI
Call Window Software, which resides on the MCI Serviceview platform ("Call
Window"). Call Window provides electronic access to daily CDR's. Daily CDR's
will not be delivered via magnetic tape. The daily CDRs will be unedited by
MCI's billing system and unaudited by MCI's billing center to ensure
timeliness of delivery. MCI will not be liable to Customer for any errors or
inaccuracies contained in the daily CDRs.
1. Daily CDRs are prepared as follows:
(a) An extract is taken of calls from MCI's call processing system
prior to monthly invoice preparation and MCI will use reasonable efforts
to have CDR's available to Customer two (2) days after traffic is
created.
(b) Files will be received by 12:00 p.m. Eastern Standard Time,
seven (7) days per week.
(c) Two (2) communications access options to the Call Window server
will be available for selection by Customer based on Customer's forecasted
volume. Any and all expenses incurred to set up any dedicated line,
hardware, software or other equipment that may be required for data
delivery shall be paid by the Customer.
2. MCI does not assume responsibility for failures in delivery of CDR data
which are caused by Customer's billing and customer premise equipment. MCI
will store files for up to fourteen (14) days in case a retransmission is
requested, after which all files will be purged.
3. Due to Error Suspense, as defined in paragraph B,2, not all calls will
necessarily appear on the file specific to their date; calls may actually
appear on a later file but the call will retain the original date.
4. Customer understands that daily CDR delivery is subject to the
following:
(a) The record format will be identical to monthly magnetic tape
except that it will not contain the amount charged for the call.
(b) Daily CDRs will not always correspond with the monthly file for
the following reasons:
(i) records do not complete the full billing process and may
get dropped as "unbillable" when the full billing process is
completed.
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(ii) Error Suspense, as defined in paragraph B,2, could result
in calls from previous dates being delivered in daily files. Normal
Error Suspense accounts for approximately one percent (1%) of total
traffic.
(iii) calls can be recycled for ninety (90) days until they
are either invoiced or dropped in the invoice editing process.
(c) Call traffic can experience up to a two (2) week delay prior to
appearing in the daily file process. This only occurs when ANI's added to
a new account or Corporate Id which has been established within two weeks
of when the ANI was tied to this new account via MCI's order entry system.
(d) File creation is time driven (i.e., data is distributed at
approximately the same time each day regardless of whether all files have
been received from all data centers). Therefore, some files on given days
could be incomplete with the remainder of data received on the following
day's file. The file header shall indicate if all data was obtained from
each of the three (3) MCI data centers.
(e) MCI shall have no obligation to research or track any
discrepancies between the daily and monthly files. Customer shall pay
pursuant to the monthly invoice, regardless of any discrepancies between
the monthly invoice and the daily files.
5. If Customer elects to receive Daily CDRs through the MCI Call Window
software application, Customer shall pay a one-time installation fee of
Two Hundred Dollars ($200) for each workstation that supports Call Window.
6. CDR's for Carrier Operator Services are available to Customer on a next
day basis. Customer assumes responsibility for pulling the CDR's from the
Carrier Operator Services Bulletin Board. Records will only be posted to
the bulletin board for ten (10) days from the date of the call.
D. LIMITATION OF LIABILITY.
MCI's total liability to Customer arising from its provisioning of CDRs under
this Exhibit C shall be limited to the lesser of (a) Customer's proven direct
damages or (b) the total amount paid by Customer to MCI for CDR services during
the one (1) month period prior to the event giving rise to the cause of action.
The foregoing limitation applies to all causes of actions and claims, including
without limitation breach of contract, breach of warranty, negligence, strict
liability, misrepresentation and other torts. Further, no cause of action which
arose more than one (1) year prior to the institution of a legal proceeding
alleging such cause of action may be asserted by either party against the other.
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