INTERNATIONAL TELEMEDIA ASSOCIATES, INC.
CUSTOMER BILLING AND COLLECTION CONTRACT
This contract (hereinafter referred to as this "CONTRACT"), dated 6/20.
1997, is entered into by and between International Telemedia Associates, Inc., a
Georgia corporation whose principal place of business is 000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, (hereinafter referred to as "ITA")
and RCP Enterprises Group, Inc. a Delaware corporation whose principal place of
business is 00 Xxxxxxxxx Xx., Xxxxxxx, Xxxx (hereinafter referred to as
"CUSTOMER"), CUSTOMER and ITA are hereinafter collectively referred to as
"PARTIES."
WHEREAS, ITA is engaged in the business of providing BILLING AND COLLECTION
SERVICES, as defined in Section 2.2 of this CONTRACT, and related services; and
WHEREAS, CUSTOMER is an IP or SB, as defined below, and desires to enter
into this CONTRACT for ITA to provide BILLING AND COLLECTION SERVICES, and any
related services referred to herein, in accordance with the terms hereof;
NOW, therefore, for and in consideration of the mutual promises,
agreements, and covenants contained herein, the sufficiency of which
consideration is hereby acknowledged, ITA and CUSTOMER hereby agree as follows:
1. ADDITIONAL DEFINITIONS: The following definitions shall apply for all
purposes of this Agreement:
1.1 ADVERTISEMENTS(S): layouts, artwork, pictures, text, video,
audio, programs and materials used in selling, promoting,
marketing and advertising CUSTOMER CALL TRANSACTIONS including,
but not limited to, those used in print media, radio broadcast,
television broadcast, and direct mail.
1.2 ANI: automatic number identification (the telephone number
identifying the CALLER).
1.3 BILLING AND COLLECTION SERVICES: See 2.2
1.4 CALL DETAIL(S): data relating to CALL TRANSACTIONS which si
provided to ITA for billing purposes. The data relating to the
charges for any one CALL TRANSACTION is referred to as a "CALL
DETAIL."
1.5 CALLER(S): customer of both CUSTOMER and other IP's engaged in
CALL TRANSACTIONS.
1.6 CALL TRANSACTION(S): the providing of a service or product by
telephone (or otherwise) with respect to which xxxxxxxx can be
placed on the local telephone bills of purchasers of the services
and products.
Page 234
1.7 CERTIFICATION AGREEMENT: any agreement signed by ITA and an IP
and/or an SB whereby such IP and/or SB warrant, among other
things, that the CALL DETAILS submitted or to be submitted to ITA
on behalf of an IP for billing and collection represent valid
arms length CALL TRANSACTIONS between that IP and IP's CALLERS.
CALL DETAILS may be submitted directly from an IP or SB to ITA
only pursuant to and in strict accordance with the terms of a
CERTIFICATION AGREEMENT.
1.8 CERTIFICATION REQUIREMENTS: the requirements and conditions set
forth in any CERTIFICATION AGREEMENT which must be met in order
for an IP or SB to transmit CALL DETAILS directly to ITA.
1.9 CHARGEBACK: The amount of a credit or adjustment to a LOCAL PHONE
BILLING issue by ITA pursuant to its rights under this CONTRACT,
or issued by a LEC pursuant to an applicable LEC B&C AGREEMENT,
or the amount of any LOCAL PHONE BILLING which is not paid by the
CALLER.
1.10 CHARGEBACK RESERVES: portions and percentages of sums collected
from LECs which are withheld from sums paid over to IP's and SB's
and held as a reserve against the possibility of future
chargebacks by LECs against ITA resulting from non-payments by,
chargeoffs of and reimbursements to CALLERS.
1.11 CUSTOMER CALL TRANSACTIONS: all CALL TRANSACTIONS OF CUSTOMER.
1.12 INFORMATION PROVIDER OR IP: any originator of services or
products available via telephone (or otherwise) that are the
subject of CALL TRANSACTIONS.
1.13 IP B&C AGREEMENT: any billing and collection agreement between
ITA and an IP including this CONTRACT.
1.14 ITA CHARGES: per CALL TRANSACTION, per validation, and per
inquiry charges imposed by ITA.
1.15 IXC: Interchange (long-distance) carrier.
1.16 LAWS AND REGULATIONS: all federal, state and local laws,
regulations, and ordinances and LEC and IXC policies, procedures,
terms, and conditions, applicable now or in the future, to the
relationship between ITA and CUSTOMER and their respective
operations.
1.17 LEC: local exchange carrier (local telephone company).
1.18 LEC B&C AGREEMENTS: billing and collection agreements between ITA
and any LEC.
1.19 LEC CHARGES: all per message, per xxxx rendering, per inquiry,
and miscellaneous charges imposed by any LEC.
1.20 LOCAL PHONE BILLING OR LPB: the billing added to the local phone
xxxx of any CALLER for CALL TRANSACTIONS or that CALLER.
1.21 PROGRAMS: the services or products being provided by CUSTOMER
that are the subject of CUSTOMER CALL TRANSACTIONS which may
include, but are not limited to, audiotext communications and
information, live voice communications and information, fax
transmissions and services, data transmissions and services,
video transmissions and services, pager and beeper services,
voice mail services, fulfillment services, sales of goods, and
computer online services with respect to which xxxxxxxx can be
placed on the local telephone bills of purchasers of the services
and products.
Page 235
1.22 REGULATORY AUTHORITY: any entity which is authorized to
investigate activities and practices of ITA or CUSTOMER
concerning CALL TRANSACTIONS and ADVERTISEMENTS. The term
REGULATORY AUTHORITY includes, but is not limited to, the Federal
Communications Commission (FCC), the Federal Trade Commission
(FTC), state attorneys general (AG), state Public Service
Commissions (PSC), and Public Utility Commissions (PUC), and
internal regulatory and/or investigatory departments within LEC's
and IXC's.
1.23 SERVICE BUREAU OR SB: any entity that is not an IP but supports
an IP's operations by causing content supplied by that IP to be
accessible via telephone lines. By way of illustration (not
limitation), SB's generally provide these services through the
set-up and operation of necessary telecommunications equipment
and through arrangements with IXC's for 900-NXX or other
pay-per-call telephone line access.
1.24 TAXES: taxes and tax-like fees, penalties, and charges of any
governmental authority.
1.25 TELEPHONE TRAFFIC: the aggregate number of CALL DETAILS generated
by CUSTOMER and submitted to ITA for billing and collection.
1.26 UNPAID LEGITIMATE CHARGES: That portion of the sums billed by the
LECs on behalf of CUSTOMER that are disputed by CALLERS, or
simply not paid by CALLERS, including CHARGEBACKS, which,
pursuant to applicable LAWS AND REGULATIONS, may be pursued for
collection by CUSTOMER or its designee. Please see the Collection
Addendum to CONTRACT which is attached hereto as Exhibit "D".
2. DESCRIPTION OF BILLING AND COLLECTION SERVICES
2.1 ITA has entered into LEC B&C AGREEMENTS with a number of
different LEC's providing that ITA, subject to the terms and
conditions set forth in those agreements, may transmit to those
LEC's CALL DETAILS for specified CALL TRANSACTIONS for the
purposes of having bills based on those CALL DETAILS placed on
the local phone bills of the CALLERS. Under the LEC B&C
AGREEMENTS, the LEC's reserve the right to approve each new
program prior to the start of billing. Subject to each LEC's
right to reject any program, a list of the LEC's which will
ordinarily add xxxxxxxx for ITA's customers will be supplied in
diskette format or through ITA's bulletin board system.
2.2 BILLING AND COLLECTION SERVICES are understood by the PARTIES to
include the following components:
2.2.1 CALL DETAIL Transmission: IXC's that are not affiliated with
CUSTOMER shall provide CUSTOMER"S CALL DETAILS to ITA, except
that CUSTOMER or any SB of CUSTOMER may transmit CALL DETAILS
directly to ITA if CUSTOMER and any SB of CUSTOMER have entered
into a CERTIFICATION AGREEMENT and all CALL DETAILS are submitted
in strict accordance with the terms of such Agreement.
2.2.2 CALLER BILLING: ITA will perform certain data processing
functions, including the editing and rating of CUSTOMER'S CALL
DETAILS for submission to LEC's with which ITA maintains a LEC
B&C AGREEMENT. In the event that IP's CALL DETAILS are determined
to be unsuitable for submission to the LEC's for placement on
CALLERS' local phone bills for any reason, including, but not
limited to, technical problems with CALL DETAILS, nonconformity
with LAWS AND REGULATIONS< failure to meet ITA of LEC edit
criteria, ITA policy considerations, and/or LEC contractual
limitations and considerations, xxxx CALL DETAILS will be
returned to CUSTOMER by ITA as provided for herein. Upon such an
occurrence, ITA shall have no further obligation to liability to
perform BILLING AND COLLECTION SERVICES relative to the returned
CALL DETAILS. ALL CALL DETAILS passing the ITA edit criteria will
be forwarded to each applicable LEC, as required, for billing
Page 236
and collection. The LEC's will purchase the CALL TRANSACTIONS
from ITA, on behalf of CUSTOMER, subject to the terms and
conditions contained in the applicable LEC B&C AGREEMENT with
that LEC, and remit funds to ITA under the terms of and in
accordance with the schedule provided in the applicable LEC B&C
AGREEMENT. Upon receipt of these LEC remitted funds, ITA will
account for an allocate those funds, ITA fees, and associated
charges and CHARGEBACK RESERVES, in accordance with this
CONTRACT.
Further, it is understood that pursuant to its LEC B&C AGREEMENTS, each LEC
has the right to return to ITA all CALL DETAILS it deems unsuitable for
placement on a CALLER's local phone xxxx. This may occur for any reason,
including, but not limited to, incomplete or out-of-date ANI, blocked ANI, LEC
sale or transfer of an exchange, and/or any other changes of availability of LEC
coverage, whether instituted by LEC, ITA, any third party, or a REGULATORTY
AUTHORITY. ITA will account for and allocate these LEC returns to CUSTOMER and
other appropriate Ips pursuant to this CONTRACT or any other applicable IP B&C
AGREEMENT.
In addition, it is understood that pursuant to ITA's LEC B&C AGREEMENTS,
the :LEC's retain the right to issue adjustments or credits to CALLERS who may,
from time to time, call the LEC's inquiry centers. When a ALL TRANSACTION is
adjusted or credited by a LEC, the funds are deducted from ITA's remittance from
the LEC. ITA will account for and allocate these LEC returns to CUSTOMER and
other appropriate IPs pursuant to this Contract and any other applicable IP B&C
AGREEMENT.
Furthermore, the LEC's will calculate for a bad debt reserve, which
represents, among other things, gross billable revenue submitted by ITA to the
LECs that will not be collected because of CALLERS' nonpayment of local, long
distance, and/or enhanced or premium rate pay-per-call services, The LEC's, from
time to time, will "true-up" or reconcile any overages or insufficient amounts
relative to maintenance of such LEC allocated bad debt reserves. ITA will exert
reasonable efforts to accurately allocate such amounts among CUSTOMER and any
other appropriate Ips.
It is expressly agreed that ITA shall have the right to make reasonable
non-detailed accounting entries and corresponding adjustments to the amounts due
to CUSTOMER under this CONTRACT relative to any CALL TRANSACTIONS or dollar
amounts where reasonable, such as for example, where the LEC's fail to provide,
among other things, the completeness of data necessary to make IP specific or
detailed allocations. In assuming and making the distribution of such
non-detailed adjustments across all applicable IP's including CUSTOMER, ITA
shall take into account such factors as the IP's gross billable revenue,
adjustment and credit history, and bad debt allowances.
CUSTOMER hereby acknowledges and agrees that the CHARGEBACK RESERVES
withheld by ITA pursuant to this CONTRACT and Schedule A attached hereto are
merely estimates of the actual chargeback activity related to CUSTOMER's
TELEPHONE TRAFFIC described by the illustrations set forth above, and do not
affect or in any way liit ITA's rights to recourse, reimbursement and set-off
against CUSTOMER pursuant to Section 19.1 below for all sums due by CUSTOMER to
ITA under this CONTRACT, including without limitation the actual chargeback,
unbillable and returns activity for CUSTOMER's TELEPHONE TRAFFIC.
Page 237
2.2.3 Inquiry Handling: ITA will handle CALLERS' inquiry and complaint
calls, and treat them in a manner consistent with the LAWS AND
REGULATIONS and this CONTRACT.
2.2.4 Disbursement: ITA will remit funds to CUSTOMER or its designated
payee after the funds have been received fro the LEC's as
provided herein. If there exists no factoring relationship with a
third-party factor or if there exists no expedited payment plan
or option with ITA, remittance of funds will be as follows:
Total of Funds Remitted from LEC Applicable to CUSTOMER
minus LEC Bad Debt Reserve Holdback (LEC Holdbacks are subject
to change)
minus Applicable LEC CHARGES
minus ITA CHARGES
minus CHARGEBACK RESERVE Payments and Adjustments (See Schedule
A)
minus Other Fees, Interest, and/or Taxes
equals Net Funds Received by CUSTOMER
ITA will exert reasonable efforts to promptly direct all funds
remitted from the LECs into a LEC depository account. ITA shall
perform the settlement accounting in accordance with the above
outlined calculation, subject to any reserve adjustments pursuant
to Section 2.2.2 and Schedule "A", and remit any net funds due to
CUSTOMER or third party FACTOR. CUSTOMER or its designated payee
will instruct ITA in what manner and to what location funds are
to be remitted. All funds due to FACTORS will be disbursed at the
joint direction of ITA and the factors as described in the
applicable factoring agreement(s). True-up will occur at 18
months unless ITA determines there is a reasonable likelihood
that such true-up could result in overpayment being made.
2.2.5 On a periodic basis, ITA shall provide to CUSTOMER reports
providing information such as calls paid, settled, unbillable, or
uncollectible and any portion of a settled amount that is
forgiven.
3. OTHER DOCUMENTS
3.1 It is expressly understood and acknowledged that the BILLING AND
COLLECTION SERVICES described herein are provided pursuant to and
under the terms, conditions, rates, and charges as set forth in
Schedule A, which is hereby made a part of this CONTRACT. The
rates offered for any other services, if any are to be provided,
will be negotiated separately as the need arises.
4. PRECEDENCE OF LAWS AND REGULATIONS
4.1 It is expressly understood and acknowledged that both CUSTOMER
and ITA shall comply with all LAWS AND REGULATIONS which may be
in effect from time to time.
4.2 The PARTIES further agree that this CONTRACT shall at all times
be subject to such changes or modifications of the LAWS AND
REGULATIONS as may, from time to time, be directed by any
REGULATORY AUTHORITY with appropriate jurisdiction; or as may, in
the reasonable view of ITA, become necessary due to changes or
modifications of the LAWS AND REGULATIONS.
5. DETARIFFING OF THE SERVICES
5.1 Should it be determined by any appropriate regulatory or other
authority that any or all of the services should no longer be
construed to fall under the jurisdiction and purview of some or
all of the LAWS AND REGULATIONS, and provided that continuance of
said services is otherwise legally permissible, the PARTIES agree
to comply with and continue this CONTRACT for such services under
the terms and conditions of this CONTRACT and Schedule A and
subject to any LAWS AND REGULATIONS that continue to apply.
Page 238
6. TERM
6.1 The term of this CONTRACT shall extend twelve (12) months from
the date of execution of this CONTRACT. Either PARTY shall have
the right to terminate the obligations of CUSTOMER to forward new
CALL DETAILS and of ITA to accept and xxxx new CALL DETAILS
effective at any time after the expiration of the twelve (12)
month period provided the party desiring to terminate has given
the other party written notice a minimum of sixty (60) days prior
to the date of termination. Upon any such termination, the
provisions of 17.2 shall apply.
6.2 In the event any CALL DETAILS are provided by CUSTOMER to ITA and
billed by ITA after the termination of this CONTRACT and before
any other contract is entered into, the terms or this CONTRACT,
with any modifications in effect as of the date of such
termination, shall be applicable with respect to such CALL
DETAILS.
7. CALL DETAIL TRANSMISSION
7.1 CUSTOMER will cause CALL DETAILS (subject to the CERTIFICATION
REQUIREMENTS) to be delivered to ITA via tape or other mutually
agreed upon data medium. ITA shall, upon request of CUSTOMER,
rate CALL DETAILS as they are received from CUSTOMER according to
pricing informati9on provided by CUSTOMER at least two weeks in
advance of the effective xxxx of said pricing.
7.2 All such CALL DETAILS delivered to ITA will be on an "as
processed basis" and may represent CALL TRANSACTIONS occurring
over more than one billing cycle. However, no CALL DETAILS shall
be delivered to ITA which represents CALL TRANSACTIONS occurring
more than sixty (60) days prior to delivery, unless special
arrangements have been agreed to by the PARTIES in advance.
7.3 CUSTOMER represents and warrants that CUSTOMER has clear title to
and the right to collect for all CALL DETAILS submitted to ITA
for billing.
7.4 The technical method and schedule of data transference of CALL
DETAILS shall be decided upon jointly by CUSTOMER and ITA.
8. CALLER BILLING
8.1 ITA does not purchase the CALL DETAILS from CUSTOMER under the
provisions of this CONTRACT, but only agrees to exert reasonable
efforts to cause a LOCAL PHONE BILLING. Pursuant to this
provision, CUSTOMER authorizes ITA to act in whatever capacity is
necessary to xxxx and collect the sums represented by the CALL
DETAILS CUSTOMER submits. In particular, CUSTOMER authorizes ITA
to convey these CALL DETAILS as accounts receivable solely for
the purpose of billing and collection for CUSTOMER and/or
factoring for CUSTOMER.
Page 239
8.2 ITA agrees to make reasonable efforts to keep CUSTOMER informed
of phone numbers for which ITA has the ability to provide an LPB
(by providing such information as NPA's/NXX's, territories,
and/or local phone companies covered); however, it is understood
that such coverage changes regularly. In that regard it is
expressly agreed that ITA shall have no liability for failing to
notify CUSTOMER for up to 3 months after ITA has lost particular
coverage that ITA no longer has such coverage. CUSTOMER may, at
its discretion, block traffic from potential CALLERS for whom ITA
does not have the ability to provide an LPB.
8.3 All CALL TRANSACTIONS shall be validated through an authorized
validation provider prior to service being provided. ITA RESERVES
THE RIGHT, AT ITA'S SOLE DISCRETION, TO POST-CALL VALIDATE AT
CUSTOMER's EXPENSE, ANY AND ALL CALLS PRIOR TO SUBMISSION OF CALL
DETAILS TO THE LEC'S FOR BILLING AND COLLECTION. Pricing for
post-call validation is listed in Schedule A.
8.4 ITA is not liable in any way to CUSTOMER should CALL DETAILS not
be placed on a local phone xxxx for any reasons associated with
post-call validation criteria.
8.5 It is further agreed that ITA shall not be liable in any way to
CUSTOMER should CALL DETAILS not be placed on a local telephone
xxxx because it is not financially feasible to xxxx such calls
(such as the total of the CALL DETAILS is not of a sufficient
amount) or because CALL DETAILS are in violation of any term of
this CONTRACT or of any of the LAWS AND REGULATIONS or because
not placeable under any LEC B&C Agreement, or due to an honest
mistake of ITA.
8.6 The PARTIES to this CONTRACT are experienced in this industry and
both realize that no tape of CALL DETAILS which is supplied to
ITA by CUSTOMER will be 100% billable. ITA will attempt to cause
as many of the CALL DETAILS to be billed as reasonably feasible
with the exceptions set forth above, and to perform such billing
and collection in a reasonably efficient manner. ITA reserves the
right to decide not to have billed or rebilled any CALL DETAILS
of CUSTOMER.
9. INQUIRY HANDLING
9.1 It is understood that a principal part of ITA's BILLING AND
COLLECTION SERVICES product is the handling of CALLER inquiries.
Page 240
9.2 ITA shall process telephone inquires and complaints from CALLERS
related to the bills they have received./ ITA my provide one or
more 800 numbers or other telephone numbers for this purpose.
9.3 CUSTOMER shall promptly provide ITA with any information and
materials in regard to the nature of the PROGRAMS relating to
CALL TRANSACTIONS which CUSTOMER has requested ITA to xxxx, or
that ITA has billed, including, but not limited to, any PROGRAMS
that are the subject of one or more inquiries or complaints. The
information and materials ITA may request at its discretion
include, but shall not be limited to, the identity of the
provider of said programming (in the event CUSTOMER is acting as
an SB), current pricing and price history, advertising history,
history of chargebacks, copies of PROGRAMS and ADVERTISEMENTS,
copies of advertising and promotional materials, contracts, and
communications between CUSTOMER and other companies providing
BILLING AND COLLECTION SERVICES to CUSTOMER and a listing of
other telephone numbers which carry the same or similar PROGRAMS.
9.4 CUSTOMER authorizes ITA to notify CALLERS of disconnection of
some or all telephone services provided by CUSTOMER for
non-payment.
9.5 CUSTOMER authorizes ITA to forgive charges incurred by any CALLER
(or remove such charges from the LEC phone xxxx) in the sole
discretion of ITA. Said charges once forgiven or removed shall
become chargebacks to CUSTOMER pursuant to Schedule A, and shall
not be re-billed to the CALLER in question by CUSTOMER in any
fashion.
9.6 CUSTOMER authorizes ITA to notify any CALLER of the possibility
of implementing call blocking, both at the LEC level and also at
the IP or SB level.
CUSTOMER authorizes ITA to accept requests for call blocking at the IP or
SB level fro any CALLER or, in accordance with ITA determined procedures and at
the sole discretion of ITA, to order call blocking at the IP or SB level for any
CALLER. The requesting or ordering of call blocking shall take the form of
notification to CUSTOMER by ITA. Upon receipt of said notification CUSTOMER
agrees to implement such call blocking within a maximum of five (5) business
days.
9.7 In no event shall ITA be liable in any form whatsoever for any
charges pertaining to any traffic which ITA finds to be
reasonably uncollectible or which ITA forgives or removes from a
CALLER's phone xxxx as per the provisions of this CONTRACT.
9.8 It is understood that it is not the intent of the PARTIES for ITA
to become involved in dispute between CUSTOMER and its CALLERS.
Consequently, the procedures for inquiry services provide
specifically (and it is hereby specifically agreed) that at any
time in the collection process, ITA may remove a disputed charge
from a CALLER's xxxx and deduct that amount from CUSTOMER's
receivables, CUSTOMER may not pursue the collection of any
CALLER'S charges once those charges have been submitted to ITA
for billing and collection, even if those charges have been
forgiven by ITA, unless agreed to, in advance, by ITA.
Page 241
10. COLLECTION OF UNPAID LEGITIMATE CHARGES
10.1 It is likely that these will be occasions when LEC's and\/or ITA
will remove xxxxxxxx of CUSTOMER from the local phone bills of
CALLERS, but not release those CALLERS from the obligations
represented by those xxxxxxxx. In such event, direct collection
efforts may be permissible. In the event that CUSTOMER decides to
have ITA and/or a subsidiary of ITA attempt to collect (or engage
an outside collection agency to attempt to collect) CUSTOMER's
UNPAID LEGITIMATE CHARGES, it will be necessary for CUSTOMER and
ITA and/or an ITA subsidiary to enter into an appropriate
supplemental collection agreement.
11. TAXES
11.1 ITA shall be responsible for paying to governmental authorities
the net sums (net sums being the sums received for such purposes
less later deductions relating to such sums due to chargebacks,
nonpyments by callers and other reasons) which ITA receives from
the LECs to cover TAXES relating to CUSTOMER's TELEPHONE TRAFFIC.
CUSTOMER shall be responsible for paying all TAXES not covered by
the net sums which ITA received from the LECs to cover such
TAXES. CUSTOMER agrees to indemnify and hold ITA harmless from
and against any liability or loss resulting from any actual or
claimed failure to pay any TAXES, or tariffs, penalties,
interest, addition to TAXES, surcharges, or other TAX related or
tariff related charges relating to CUSTOMER and CUSTOMER CALL
TRANSACTIONS including, but not limited to, any related
attorney's fees and litigation expenses that may be incurred.
12. CONFIDENTIALITY AND PUBLICITY
12.2 CUSTOMER may disclose to and discuss with third parties the
identify of ITA and the functions ITA performs for CUSTOMER.
However, the terms of this CONTRACT, its specific provisions and
any price information contained herein, shall remain strictly
proprietary and confidential to ITA, and CUSTOMER shall not
disclose (or permit disclosure of) or use (or permit use of) this
information other than by CUSTOMER's own organization for
CUSTOMER's billing and collection activities with ITA. With
respect to any such information that constitutes a trade secret
of ITA, the terms of this provision shall apply for so long as
such information does not become public by legitimate means. As
to any confidential information that does not constitute a trade
secret under applicable law, this provision expires two (2) years
from the date of the expiration of other termination of this
CONTRACT.
12.2 Unless otherwise required by applicable law or a regulatory
agency, ITA and CUSTOMER agree that they shall not, without the
prior written consent of the other, make any news release, public
announcement, or denial or confirmation about the whole or any
part of this CONTRACT which names the other, or any affiliate of
the other.
Page 242
13. ASSIGNMENT
13.1 CUSTOMER has not and shall not assign or delegate any right,
title, obligations, or duty in whole or in part, or any other
interest hereunder, or in the CALL DETAILS, without the written
consent of ITA. Any such assignment, transfer, sale, exchange, or
gift is null and void.
14. AMENDMENTS AND WAIVERS
14.1 This CONTRACT or any part thereof or any attachment hereto may be
amended, modified or additional provisions may be added by
written agreement signed by or on behalf of both PARTIES.
14.2 No consent or waiver of any default under this CONTRACT shall be
effective unless the same shall be in writing and signed by o on
behalf of the PARTY against whom such waiver or consent is
claimed. The failure to strictly enforce any term, right or
condition, or of any other term, right, or condition provided
under this CONTRACT.
15. CERTIFICATIONS
15.1 CUSTOMER certifies that all CALL DETAILS which are being or will
be submitted to ITA by CUSTOMER under the provisions of the
CONTRACT do and will relate to CALL TRANSACTIONS, the carrying
and provision of which conflict in no way with any applicable
federal, state, or local tariffs, laws, or regulations.
15.2 CUSTOMER certifies that all CALL DETAILS which are being or will
be submitted to ITA under the provisions of this CONTRACT are
valid and accurate.
15.3 CUSTOMER represents and warrants that it has obtained and will
keep current all federal, state, and local licenses or other
approvals and comply with all LAWS AND REGULATIONS as may be
applicable to the CUSTOMER'S CALL TRANSACTIONS.
15.4 COPIES OF ALL LICENSES, CERTIFICATIONS, AND APPROVALS, AND OTHER
DOCUMENTS REQUIRED OF CUSTOMER UNDER THIS CONTRACT OR UNDER
APPLICABLE LAWS AND REGULATIONS SHALL BE FURNISHED BY CUSTOMER TO
ITA UPON REQUEST OF ITA.
15.5 CUSTOMER hereby represents and warrants to ITA that its PROGRAMS
and ADVERTISEMENTS are and will continue to be legal and at all
times in conformity with applicable LAWS AND REGULATIONS and the
requirements of this CONTRACT, including Schedule A attached.
Such LAWS AND REGULATIONS and CONTRACT terms include, but are not
limited to, rate caps, preambles, validation requirements, age
certification requirements, contract certification requirements,
and tariffs. CUSTOMER agrees to protect, defend, indemnify and
hold ITA harmless from and against any and all expenses, claims,
demands or causes of action of every kind and character including
attorney's fees and expenses because of, incident to, or
resulting directly or indirectly from the acts, omissions or
defaults of CUSTOMER and/or from CUSTOMER's PROGRAMS,
ADVERTISEMENTS, CALL TRANSACTIONS AND CALL DETAILS that are in
breach of the representations and warranties set forth in this
subsection.
Page 243
16. INDEMNIFICATION
16.1 CUSTOMER hereby agrees to indemnify and hold ITA harmless from
and against any claims or losses ITA may incur, including any
attorney's fees and related expenses, resulting from any failure
by CUSTOMER to perform in accordance with or as agreed under the
terms of this CONTRACT, or any other breach by CUSTOMER of any of
the terms of this CONTRACT, including any breach of any warranty
or representation provided hereunder, and including, but not
limited to, claims for any fees, penalties, or any judgements
incurred by such failure to perform or breach.
17. SUSPENSION AND TERMINATION
17.1 Notwithstanding Section 8 above, ITA may suspend xxxxxxxx under
this CONTRACT immediately in the event a charge is made by a
REGULATORY AUTHORITY that any ADVERTISEMENTS< PROGRAMS< CALL
TRANSACTIONS or CALL DETAILS or CUSTOMER were made in, or are in
violation of, any of the LAWS AND REGULATIONS and, in the event
of such a violation, ITA may terminate all billing under this
CONTRACT. If ITA, in its sole discretion, determines that
CUSTOMER has provided PROGRAMS or ADVERTISEMENTS which are
objectionable and/or may reflect adversely on ITA or may harm its
good business name, it may suspend or terminate billing under
this CONTRACT in the event of any other breach of any of the
terms of this CONTRACT, which breach is not cured within thirty
(30) days of written notice to CUSTOMER of such breach. Any such
termination shall not limit ITA from any additional legal
remedies it may elect to pursue.
17.2 In the event of any termination of this Agreement, all of the
provisions of this CONTRACT shall continue to apply, except for
CUSTOMER's obligations to provide CALL DETAILS to ITA and ITA's
obligations to transmit CALL DETAIL information to LEC's for
billing purposes. In the event of any such termination, ITA shall
account for and disburse funds to CUSTOMER in accordance with the
terms of and subject to all of ITA's rights under this CONTRACT,
applicable LAWS AND REGULATIONS and/or rulings of an arbitrator
or by any court or other agency of competent jurisdiction.
17.3 No portion of the start-up fee shall be refundable due to any
early termination.
18. NOTIFICATION
18.1 Except as otherwise provided under this CONTRACT or in the
attachments hereto, all notices, demands, or requests which may
be given by one Party top 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 return receipt requested, or sent by telex or
cable to the other Party's notification address. The notification
addresses of the PARTIES are as follows:
ITA:
International Telemedia Associates, Inc.
c/o Office of the President
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Page 244
With a copy to:
International Telemedia Associates, Inc.
c/o Xxx Xxxxxxx, Attorney at Law
HASSETT, COHEN, BEITCHMAN & XXXXXXXXX, LLP
One Lakeside Commons 000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Customer:
RCP Enterprises Group, Inc.
c/o Viatech Communications Group, Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
18.2 The above notification addresses may be changed by written notice
given by one Party to the other Party pursuant to this Section.
19. RIGHT OF RECOURSE, REIMBURSEMENT AND SET-OFF
19.1 Notwithstanding any other term of this CONTRACT, and whether or
not this CONTRACT has been terminated or breached, the PARTIES
agree that ITA is hereby entitled to recourse against CUSTOMER,
and CUSTOMER is hereby obligated to reimburse ITA, for all sums
due by CUSTOMER to ITA under this CONTRACT, including without
limitation reimbursement required to be paid to ITA to CALLERS or
LECs for amounts attributable or allocable to CUSTOMER,
overpayments by ITA to CUSTOMER due to insufficient CHARGEBACK
RESERVES, any claims ITA may have against CUSTOMER for TAXES,
failure o\f CUSTOMER to comply with any of the LAWS AND
REGULATIONS to the extent CUSTOMER's noncompliance negatively
impacts ITA financially or proximately causes damages to ITA, and
any attorneys' fees and arbitration expenses ITA incurs in
enforcing this right of recourse and reimbursement and any of its
other rights hereunder. ITA and CUSTOMER agree that ITA is hereby
entitled to pursue al available legal remedies to enforce this
right of recourse and reimbursement, and further that ITA may,
without prejudice o any other remedies, set-off against any
amounts that would otherwise be due to CUSTOMER any sums due by
CUSTOMER to ITA under this CONTRACT.
20. LIMITATION OF LIABILITY
20.1 ITA shall not, in any event, be liable for special incidental,
consequential, indirect, or other similar damages, even if ITA or
any of its agents or employees have been advised of the
possibility of such damages. Additionally, ITA and its agents or
employees shall not, in any event, be liable for exemplary,
punitive, or similar damages under any circumstances. CUSTOMER's
sole and exclusive remedy for any breach by ITA of this Agreement
or any other claims against ITA relating to this Agreement shall
be the refund of fees paid by CUSTOMER for services rendered or
to be rendered by ITA hereunder.
Page 245
21. THIRD PARTY BENEFICIARIES
21.1 The provisions of this CONTRACT are for the benefit of the
PARTIES hereto and not for any other person except as otherwise
agreed upon in writing by the PARTIES.
22. COUNTERPARTS
22.1 This agreement may be executed in multiple counterparts, any one
of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
23. OBLIGATIONS SURVIVE TERMINATION
23.1 Provisions contained in this CONTRACT that by their sense and
context are intended to survive the performance, termination, or
cancellation of this CONTRACT shall so survive.
24. SEVERABILITY
24.1 In the event that any one or more of the provisions contained in
this CONTRACT shall for any reason be held invalid or
unenforceable in any respect under the laws of the state of
Georgia, the remaining provisions shall not be affected thereby,
but rather, the entire CONTRACT shall be construed as if not
containing the particular invalid or unenforceable provision, and
the rights and obligations of the party hereto shall be construed
and enforced accordingly.
25. FORCE MAJEURE
25.1 ITA shall not be held liable for any delay or failure in
performance of any part of this CONTRACT from any cause beyond
its control and without its fault or negligence, such as acts of
God, acts of civil or military authority, current LAWS AND
REGULATIONS and changes thereto, embargoes, epidemics, ar,
terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, strikes, power blackouts,
volcanic action, other major environmental disturbances,
unusually severe weather conditions, inability to secure products
or services of other persons or transportation facilities, or
acts or omissions of transportation or telecommunications common
carriers.
26. ARBITRATION
26.1 Any controversy or claim arising out of or related to this
CONTRACT, and any other disputes between the PARTIES hereto shall
be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in
effect. There shall be only one arbitrator selected pursuant to
the AAA Commercial Arbitration Rules then in effect, and the fees
for the arbitrator shall not exceed the lesser of $200.00 per
hour or $1,200.00 per day. Judgement upon the award rendered by
the arbitrator may be entered in any court having jurisdiction
thereof. All arbitration proceedings shall be held at the offices
of the American Arbitration Association in Atlanta, Georgia. It
is expressly agreed that the arbitrator shall be empowered and
permitted to grant preliminary and permanent equitable relief in
addition to awarding damages.
27. AUTHORIZATION
27.1 Each of the persons executing this CONTRACT represents for
herself/himself that she/he has the authority and power to
execute this CONTRACT for herself/himself and any entity on
behalf of which she/he executes this CONTRACT.
Page 246
28. SUCCESSORS AND ASSIGNS
28.1 This CONTRACT will be binding upon, and inure to the benefit of,
each party hereto and its or his/her heirs, devisees, successors
and assigns.
29. ADVICE OF COUNSEL
29.1 The PARTIES agree that each has obtained or has had the
opportunity to obtain the advice of legal counsel prior to the
execution of this CONTRACT, that each has read this CONTRACT
carefully, that each has obtained or had the opportunity to
obtain advice from counsel regarding this CONTRACT's meanings and
consequences, and that each has signed this CONTRACT freely and
voluntarily.
30. SURVIVAL
30.1 The representation and warranties contained herein will not be
extinguished upon execution hereof, but will survive the
execution hereof and may be asserted without limitation, except
as otherwise provided by law.
31. GOVERNING LAW
31.1 Except as otherwise expressly provided in this CONTRACT, this
CONTRACT shall be deemed to be a contract made under the laws of
the State of Georgia, and the construction, interpretation and
performance of this CONTRACT and all transactions hereunder shall
be governed by the laws of that State.
32. CONSTRUCTION
32.1 Although the initial draft of this CONTRACT was drafted on behalf
of ITA, this agreement shall not be construed for or against any
party but shall be construed in accordance with the tenor of the
language contained herein.
33. ENTIRE AGREEMENT
33.1 This CONTRACT and the attachments, and referenced LAWS AND
REGULATIONS, and any CERTIFICATION AGREEMENT constitute the
entire agreement between CUSTOMER and ITA, which supersedes and
replaces all prior oral or written agreements or contracts, oral
or written representations, statements, negotiations,
understandings, proposals and undertakings with respect to the
subject matter hereof. The terms of this CONTRACT are contractual
and not mere recitals.
IN WITNESS WHEREOF, the PARTIES hereto have duly executed this CONTRACT as
of the date appearing on the first page of this CONTRACT. Any individual
executing this CONTRACT on behalf of any party hereto does hereby represent and
warrant that such execution is made with full authority and that such party is
bound by the terms hereof.
Read, Understood, and Agreed:
Dated as of this 20th Day of June, 1997.
INTERNATIONAL TELEMEDIA CUSTOMER:
ASSOCIATES, INC. ("ITA")
/s/ RCP Enterprises
By: /s/ International Telemedia Asscoiates By: /s/ Xxxxxxx X. Xxxxxx,Xx.
Print Name: _______________ Print Name:Xxxxxxx X. Xxxxxx,Xx.
Title: _____________________ Title: President
Place an "X" next to the statement that applies:
_______ CUSTOMER has executed a CERTIFICATION AGREEMENT.
_______ CUSTOMER has not executed a CERTIFICATION AGREEMENT.
Page 247
SCHEDULE A
Customer Name _______________ Product Type: ___________ Account #____________
(Addendum to CUSTOMER BILLING AND COLLECTION CONTRACT)
START UP FEES: $1,000
MONTHLY MINIMUMS: $1,500 (in Pr Call Charges)
CALL CAPS: Per Call Per ANI/Per Tape
-------- ----------------
$ 50.00 $150.00
The following charges shall apply to all CALL DETAILS billed through ITA Billing
and Collection Services:
Per CALL TRANSACTION $.10, plus LEC costs
Per INQUIRY $2.50 per inquiry
Per VALIDATION $.07 per query
A "Per CALL TRANSACTION" charge applies to every CALL TRANSACTION processed
by ITA.
"Per INQUIRY" charges are generated when ITA or a LEC processes an inquiry
call from a CALLER of CUSTOMER. A "Per Inquiry" charges is assessed for each
CALL TRANSACTION for which an inquiry is made and the charge for that CALL
TRANSACTION is either sustained or removed from the xxxx by either ITA or a LEC.
A "Per VALIDATION" charge is assessed when ITA validates a CALL TRANSACTION
through an authorized data base provider.
All of the above charges are in addition to LEC CHARGES which vary from LEC
to LEC and are passed through to the CUSTOMER.
ITA shall maintain a CHARGEBACK RESERVE and a LEC Bad Debt Holdback
reserve, to be withheld from whatever funds are disbursed to CUSTOMER. ITA
reserves the right to adjust the reserves from time to time to approximate
actual chargeback and LEC bad debt history and, upon the discontinuance or
reduction of billing for CUSTOMER, as is reasonably determined to be required to
assure that CHARGEBACK RESERVES are sufficient to cover any sums that CUSTOMER
may end up owing to ITA. The reserves will initially be set as follows:
ITA CHARGEBACK RESERVE 30%
LEC Reserve Actual (varies from LEC to LEC)
Please note that ITA reserves the right to modify the reserve percentages
and rates for Billing and Collection Services at its sole discretion provided
that rates for Billing and Collection Services will not be changed except upon
thirty (30) days prior written notice. CUSTOMER represents and warrants that the
services that will be provided by CUSTOMER to be billed by ITA will be those
described in CUSTOMER's Approval Package submitted to ITA and approved by the
LEC's.represents and warrants that the services that will be provided by
CUSTOMER to be billed by ITA will be those described in CUSTOMER's Approval
Package submitted to ITA and approved by the LEC's.
Page 248
EXHIBIT 1
CERTIFICATION AGREEMENT
This Certification Agreement, dated 6/20, 1997, is entered into by and
between RCP Enterprises Group, Inc. (hereinafter referred to as "CUSTOMER"), a
Delaware corporation whose principal place of business is 00 Xxxxxxxxx Xx.,
Xxxxxxx, XX and International Telemedia Associates, Inc. (hereinafter referred
to as "ITA"), a Georgia corporation whose principal place of business is 000
Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. CUSTOMER and ITA
are hereinafter collectively referred to as the "PARTIES."
Whereas, the PARTIES have entered into a Billing and Collection Agreement
signed and executed on 6/20, 1997 (hereinafter referred to as the "CONTRACT", it
being hereby agreed that the definitions in the CONTRACT also apply hereto); and
Whereas, CUSTOMER wishes to become certified by ITA to transmit CALL
DETAILS directly to ITA as contemplated in 1.7, 1.8 and 2.2.1 of the CONTRACT;
Now, therefore, in consideration of the terms and conditions contained
herein, ITA and CUSTOMER hereby covenant and mutually agree as follows:
1. Exchange for certain warranties, representations, and guarantees, ITA is
willing to accept CALL DETAILS directly from CUSTOMER. See Section 2 of the
Agreement.
2. CUSTOMER hereby warrants that all CALL DETAILS submitted by CUSTOMER to ITA
will represent arm's length transactions between CUSTOMER and its customers and
that these transactions will reflect actual CALL TRANSACTIONS generated by
end-users who have no right, title or interest in the revenues generated by said
ALL TRANSACTIONS
3. CUSTOMER agrees that ITA may audit and/or examine CUSTOMER's equipment,
facilities, accounts, and programs upon reasonable written notice and during
normal business hours to determine to ITA's reasonable satisfaction the validity
of CALL DETAILS submitted by CUSTOMER to ITA for billing and collection.
4. Should ITA reasonably determine through any reasonable means that CUSTOMER
has submitted CALL DETAILS not based on arm's length transactions between
CUSTOMER and its customers or not reflecting actual CALL TRANSACTIONS generated
by end-users who have no right, title or interest in the revenues generated by
sad CALL TRANSACTIONS, ITA shall have an absolute right to terminate its
obligations to CUSTOMER without recourse to CUSTOMER. Such CALL TRANSACTIONS
include, but are not limited to, fraudulent or doctored call records that are
terminated to locations other than what has been represented, calls that have
been generated to a CUSTOMER's service by auto dialers, agents or employees of
CUSTOMER or calls that are knowingly double-billed.
Page 249
5. ITA reserves the right to pursue any other legal rights provided by law or
agreement against CUSTOMER for any breach of the warranties set forth herein.
6. It is understood and agreed that in the event of any conflict between the
terms of the CONTRACT and this Certification Agreement, the terms of this
Certification Agreement shall control.
7. Any individual executing this agreement on behalf of a party hereby
represents and warrants that such execution is made with fully authority.
8. CUSTOMER further agrees to execute and deliver an additional certification
agreement having terms and conditions substantially the same as this
Certification Agreement with respect to any particular CALL DETAILS as may be
requested by ITA which additional agreements shall be supplemental to and not in
lieu of the terms hereof.
Read, Understood and Agreed:
Dated as of this 20 day of June, 1997
INT'L. TELEMEDIA ASSOC., INC. CUSTOMER:
RCP Enterprises Group, Inc.
Print Name of Customer
By: /s/ Xxxxxxx X. Xxxxxx, Xx. C/o Viatech Comm. Group, Inc.
-----------------------------
Print Name: Xxxxxxx X. Xxxxxx, Xx. 000 Xxxxx Xxxxxxxx Xxxxx
---------------------- ------------------------
Title: President Xxxxxxxxx Xxxxx, XX 00000
--------- -------------------------
Page 250
