EXHIBIT 10.10
AGREEMENT
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THIS SERVICES AGREEMENT is entered into this 30th of September, 1997, between
QUEST GROUP INTERNATIONAL, INC., a Georgia corporation with its principal
offices located at 000 Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxx 00000 ("Quest"), and
AMERITECH COMMUNICATIONS, INC., a Delaware corporation with offices located at
0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("Ameritech").
WHEREAS, Quest is engaged in providing various prepaid telecommunication
platform services and selling related retail and/or wholesale telecommunications
products; and
WHEREAS, Ameritech desires to purchase from Quest, and Quest desires to sell to
Ameritech, these prepaid telecommunications platform services and wholesale
telecommunications products for resale by Ameritech to customers; and
WHEREAS, Quest desires to provide on a retail basis to Ameritech's Customers
and/or End Users certain long distance telecommunications services;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
other valuable consideration, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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The following terms have the meanings hereinafter indicated whenever used in
this Agreement:
1.1 "AFFILIATE" shall mean, when used with respect to a specific Person, a
Person who directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the specified
Person.
1.2 "CARRIER" shall mean the underlying facilities-based provider of
intraLATA, interLATA or international telecommunications services.
1.3 "DISCLOSING PARTY" shall mean, when used in connection with the disclosure
of any particular Confidential Information, the Party who discloses such
Confidential Information to the other Party.
1.4 "END USER" shall mean the actual consumer of the Services.
1.5 "EVENT OF DEFAULT" shall mean any event or occurrence described as such in
SECTION 7.1 hereof.
1.6 "FCC" shall mean the Federal Communications Commission and any successor
federal agency having jurisdiction over the interstate provision of
telecommunications services.
1.7 "QUEST" shall mean Quest Group International, Inc., a Georgia corporation.
1.8 "PARTY" shall mean Ameritech on the one hand and Quest on the other hand.
1.9 "PERSON" shall mean any individual, partnership, corporation, limited
liability company, trust, or other entity.
1.10 "RATE SCHEDULE" shall mean that certain schedule attached hereto as
ADDENDUM "A" and the
exhibits thereto, which identifies (i) each of the telecommunications
products and platform services that may be purchased by Ameritech for
resale to Customers, (ii) each of the telecommunications products that may
be provided by Quest directly to Ameritech's Customers and/or End Users,
(iii) the Usage Charges applicable to each such product or service, and
(iv) the Service Charges applicable to each such product or service, as
such schedules may be amended from time to time by mutual agreement of the
parties.
1.11 "RECEIVING PARTY" shall mean, when used in connection with the disclosure
of any particular Confidential Information, the Party to whom such
Confidential Information is disclosed by the other Party.
1.12 "CUSTOMER" shall mean any retail and/or wholesale customer procured by
Ameritech.
1.13 "SERVICE CHARGES" shall mean any charges other than Usage Charges which are
set forth in the Rate Schedule and which are payable (i) by Ameritech to
Quest in connection with the purchase of a particular category of Wholesale
Services, including recurring and non-recurring installation charges,
location charges, management fees, and similar items, or (ii) by Quest in
connection with the provision of a particular Retail Service.
1.14 "SERVICES" shall mean the Retail Services and the telecommunications
services provided by Ameritech to Customers and/or End Users as a result of
the resale of Wholesale Services.
1.15 "USAGE CHARGES" shall mean (i) the charges payable by Ameritech to Quest
with respect to each minute or six (6) second increment thereof, whichever
is specified, of use by Ameritech of a particular category of Wholesale
Services, as calculated in accordance with the applicable rates set forth
in the Rate Schedule, or (ii) the charges payable by Quest to Ameritech
with respect to each minute or six (6) second increment thereof, whichever
is specified, of provision of a particular category of Retail Service, as
calculated in accordance with the applicable rates set forth in the Rate
Schedule.
1.16 "WHOLESALE SERVICES" shall mean the telecommunications products and
platform services identified in the Rate Schedule which are sold directly
by Quest to Ameritech for resale by Ameritech. The Wholesale Services shall
include at a minimum those Services specified in ADDENDUM "B" hereto,
regardless of whether they are currently being provided by Quest to
Ameritech under this Agreement.
1.17 "RETAIL SERVICE" shall mean the telecommunications products identified in
the Rate Schedule which are provided by Quest to Ameritech's Customers
and/or End Users.
1.18 "TRANSMISSION SERVICES" shall mean the physical carriage of a telephone
call from the point of origin to the destination point, and shall include
both Wholesale Transmission Services and Retail Transmission Services.
ARTICLE II
PURCHASE/PROVISION OF SERVICES
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2.1 GENERAL.
(A) Ameritech shall purchase from Quest, and Quest shall sell to
Ameritech, in accordance with the terms and conditions contained in
this Agreement, such Wholesale Services as may be ordered by Ameritech
from time to time for resale. In exchange for such Wholesale
Services, Ameritech shall be obligated to pay to Quest any applicable
Usage Charges and Service
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Charges as set forth on the Rate Schedule in accordance with the
provisions of ARTICLE IV hereof.
(B) Quest shall provide, in accordance with the terms and conditions
contained in this Agreement, such of the Retail Services identified in
ADDENDUM "A" as may be specified from time to time by Ameritech. In
exchange for such Retail Services, Quest shall be obligated to pay
Ameritech any applicable Service Charges as set forth in the Rate
Schedule in accordance with the provisions of ARTICLE IV hereof.
2.2 ADDITIONAL SERVICES. From time to time, Quest may make available for
purchase by Ameritech additional wholesale telecommunications products and
services other than the Wholesale Services listed in the Rate Schedule. If
Ameritech desires to purchase any such additional product or service, the
price of such additional product or service, and the terms and conditions
on which it will be provided to Ameritech, will be determined by mutual
agreement of the parties hereto at the time such product or service is
offered by Ameritech, and the Rate Schedule will be modified accordingly.
2.3 SPECIAL SERVICES. From time to time, Ameritech may request that Quest
supply to Ameritech special services in addition to or different from those
services specified in Sections 2.1 and 2.2 hereof. Any such request from
Ameritech shall be in writing, and Quest shall respond to such request with
a written quotation to Ameritech, which quotation specifies the cost and
timeline for performance of the special services. The parties must agree
in writing to performance of the special services before Quest will
undertake those special services.
2.4 REQUIRED DOCUMENTATION. Prior to the delivery by Quest to Ameritech of any
Wholesale Services which would be subject to any federal, state or local
excise, sales or use taxes if Ameritech were not purchasing such Wholesale
Services for resale, Ameritech shall deliver to Quest all applicable
exemption forms and certificates required to avoid the collection of such
taxes by Quest or, in the event Quest is processing and paying said taxes
on behalf of Ameritech, all appropriate accounts and documentation shall be
agreed upon by the Parties.
[***]
2.6 WARRANTY AND LIMITATIONS. Quest represents and warrants to Ameritech that
the Wholesale Services shall conform to and operate in strict accordance
with the specifications contained in ADDENDUM "B" attached hereto.
AMERITECH ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE HEREIN, QUEST MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED,
CONCERNING ITS FACILITIES, PRODUCTS OR SERVICES, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE
OR PURPOSE. In no event shall Quest be liable for any act or omission of
either the Carrier(s) from whom Ameritech obtains network services or any
other entity furnishing equipment, products, or services to Ameritech, its
End Users or its Customers, nor shall Quest be liable for any damages or
losses due to the fault or negligence of Ameritech, its End Users or its
Customers.
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* Portions of this Agrement have been redacted to preserve the Company's
confidential information.
ARTICLE III
ORDERS
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3.1 STANDARD ORDER PROCESSING PROCEDURES. All orders for those Services
specified in ADDENDUM A shall contain the information specified in, and be
submitted by Ameritech to Quest in accordance with, those order processing
procedures mutually established by Quest and Ameritech.
3.2 CUSTOM ORDER PROCESSING PROCEDURES. Orders for the development of special
or custom services not then specified in ADDENDUM A as being available to
Ameritech shall be submitted by Ameritech to Quest in accordance with such
special order processing procedures as the Parties shall mutually
establish. Each order for development of custom or special services shall
indicate whether (a) Ameritech is requesting exclusive use of such custom
or special service, or (b) if Ameritech does not request exclusive use of
such custom or special service, the royalty arrangement to be utilized
whereby Quest will compensate Ameritech if such custom or special service
is provided by Quest to another of Quest's customers after Ameritech has
paid for the development of the custom or special service.
3.3 REQUIRED INFORMATION. Each order submitted by Ameritech shall contain
all required information. If Ameritech submits an order for Services which
is incomplete or which otherwise fails to comply with the established order
processing procedures, Quest may either return the order to Ameritech for
completion or correction or attempt to process the order in the condition
submitted by Ameritech.
3.4 ACCEPTANCE OF ORDERS. No order for Services will be binding upon Quest
unless and until such order has been approved by Quest; provided that,
Quest shall not unreasonably withhold or delay its approval of an order for
Services. If Quest refuses to approve an order for Services, it shall
provide Ameritech with notice of such rejection and the reason therefor.
ARTICLE IV
BILLING AND COLLECTION
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4.1 INVOICES AND PAYMENTS.
(A) Invoices. Within ten (10) days of the last day of each calendar month
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during the term of this Agreement and for each month thereafter until
all charges for the Wholesale Services other than Transmission
Services have been billed and paid, Quest shall prepare and deliver to
Ameritech an invoice summarizing the various non-Transmission Services
charges incurred by Ameritech during the immediately preceding month.
Quest shall on a weekly basis prepare and deliver to Ameritech an
invoice summarizing the various Transmission Services charges incurred
by Ameritech during the immediately preceding week. Quest's failure
to forward an invoice within the prescribed time period shall not
relieve or otherwise modify or alter in any way Ameritech's obligation
to make the payments required herein.
(B) Payments. Ameritech shall pay the undisputed portion of each non-
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Transmission Services invoice no later than thirty (30) days after the
invoice date. Ameritech's payment shall be made by wire transfer to
an account specified by Quest. Ameritech shall pay the undisputed
portion of each Transmission Services invoice not later than fifteen
(15) days after the invoice date. Ameritech's payment shall be made
by wire transfer to a separate, specific bank account set up in
Quest's name, but said account shall be subject to a restriction that
payments into the account from Ameritech must be automatically
forwarded by the bank to one (1) or more Carriers specified by
Ameritech and Quest, and those forwarding instructions
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cannot be altered or canceled without both Quest's and Ameritech's
prior written consent. Any invoice that is not paid when due,
including any disputed payment withheld by Ameritech pending
resolution of the dispute with Quest which is subsequently determined
to be due and owing to Quest, shall be subject to a late fee
calculated using the prime rate (the average rate published in The
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Wall Street Journal on the payment due date) plus two percent (2%).
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(C) Statements. Within fifteen (15) days of the last day of each week
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during the term of this Agreement and for each week thereafter until
all settlements for the Retail Services have been paid, Ameritech
shall prepare and deliver to Quest a statement summarizing the various
revenue(s), calculated in accordance with the Rate Schedule, to be
paid to Quest for providing the Retail Services during the immediately
preceding month, less the Service Charges owed by Quest to Ameritech
in connection therewith. Ameritech shall include with each such
statement the full net payment due and owing to Quest.
4.2 DISPUTES. If either party disputes any calculation or amount shown on an
invoice, it shall notify the other party of such dispute and the basis
therefor within twenty (20) business days after receipt of such invoice.
The non-disputing party shall respond to the disputing party in writing
within ten (10) business days of its receipt of such a notice. If the
dispute is not resolved as a result of the response, Ameritech and Quest
shall in good faith attempt to resolve such dispute through mediation and
arbitration in accordance with ARTICLE XI hereof.
4.3 AUDIT.
(A) Upon reasonable advance written notice to Quest, Ameritech shall be
entitled from time to time (but no more frequently than every six (6)
months) to audit (a) Quest's books and records to confirm the accuracy
of charges invoiced by Quest to Ameritech, (b) the End User database
of information to verify its accuracy and completeness, and (c)
Quest's personnel and methods and procedures to verify Quest's
compliance with this Agreement. Any such audit shall be performed at
reasonably convenient times for the Parties and during normal business
hours. Any audit of the accuracy and completeness of Quest's invoices
to Ameritech shall be limited to transactions underlying those
invoices submitted within one (1) year of Ameritech's request for the
audit. If any audit conducted by Ameritech reveals a discrepancy of
five percent (5%) or more, then Quest shall reimburse Ameritech's
reasonable audit expenses. Nothing herein shall give Ameritech the
right to have access to any information other than that information
related to Ameritech's account.
(B) Notwithstanding the foregoing, Ameritech shall be entitled to place
one (1) or more of its employees and/or consultants at Quest's
facilities in order to audit the accuracy, correctness and
completeness of the Carrier's bills to Quest for Wholesale
Transmission Services sold by Quest to Ameritech. Quest shall furnish
such employees/consultants reasonable accommodations, facilities and
assistance in this effort, and Ameritech shall reimburse Quest for any
reasonable out of pocket expenses (to include such expenses as
telephone charges but not to include an allocation for rent, lights,
heat, etc.) incurred by Quest in providing such accommodations,
facilities and assistance. If Quest requests and they have time,
Ameritech will direct those employees/consultants to also audit the
accuracy, correctness and completeness of the Carrier's bills to Quest
for Retail Transmission Services provided by Quest to Ameritech's
Customers and/or End Users, in which event Quest shall reimburse
Ameritech for a pro rata portion of the employees'/consultants' time
and expenses based on Ameritech's portion of the Xxxxxxx'x xxxx in
relation to Quest's portion of the Xxxxxxx'x xxxx.
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4.4 BILLING INQUIRIES AND COLLECTION EFFORTS. Ameritech shall be solely
responsible for responding to billing inquiries from its Customers and End
Users, unless Ameritech has purchased that type of customer service from
Quest. Ameritech shall be solely responsible for all collection efforts
involving its Customers, and the inability to collect payment from its
Customers and End Users shall not affect Ameritech's obligation to make the
payments to Quest required herein.
ARTICLE V
ADDITIONAL COVENANTS
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5.1 TAXES. Ameritech shall pay or cause to be paid, when due, all federal,
state, and local excise, sales, and use taxes payable with respect to any
Wholesale Services resold by Ameritech to its Customers and End Users.
Quest shall pay or cause to be paid, when due, all federal, state, and
local excise, sales, and use taxes payable with respect to any Retail
Services provided to Ameritech's Customers and/or End Users. Each party
shall pay or cause to be paid, when due, all federal, state and local taxes
payable with respect to the revenues and profits recognized by that party
hereunder.
5.2 COMPLIANCE WITH LAWS. Each Party shall, at its own expense, comply with
all federal, state, and local laws, ordinances and regulations relating to
its duties, obligations, and performance under this Agreement and shall
procure all certificates, permits, and licenses required in connection
therewith.
5.3 TRADEMARKS. Except for Ameritech's use of Quest's name and/or trademark(s)
and logo(s) to identify that Quest is the provider of Retail Services to
Ameritech's Customers and/or End Users, neither Party shall use the name or
logo of the other Party or an Affiliate of the other Party without the
prior express written consent of the other Party. All use by a Party of
the other Party's name, trade names, trademarks, service marks, and logos
will inure to the benefit of the other Party. Each Party further agrees
not to use the other Party's name, trade names, trademarks, service marks,
or logos as or with any part of any name, xxxx, or trade name of the Party
or any Affiliate of the Party. Without limiting any other provision of
this Agreement, all uses by a Party of a name or logo of the other Party,
whether on tangible materials or in communications in connection with the
rendition of its duties hereunder, must conform to this Agreement and,
where applicable, the policies and practices of the other Party furnished
to the Party from time to time.
5.4 MOVEMENT OF CUSTOMERS. During the term of this Agreement, Ameritech shall
not directly solicit the retail prepaid phone card business of those
customers of Quest identified in ADDENDUM "C" attached hereto. Nothing
herein contained shall prohibit Ameritech from responding to an unsolicited
request for proposal from any such customer, or from pursuing the retail
prepaid phone card business of such customer if that customer is no longer
purchasing services from Quest.
5.5 PROPRIETARY SYSTEMS/TECHNOLOGY. Ameritech acknowledges that the
technologies and systems, including but not limited to software, procedures
and methods of processing information, activation and refresh systems, and
other proprietary information provided to Ameritech and used by Quest in
connection with Quest's performance under this Agreement, are the sole and
exclusive property of Quest. Nothing contained herein shall convey to
Ameritech any rights or interests in Quest's proprietary programs and
systems, other than the right for Ameritech to use Quest's proprietary
programs and systems during, subject to and in conjunction with the terms
and conditions of this Agreement, and except as such use may be required by
Ameritech upon or after the expiration or termination of this Agreement to
continue to utilize the Customer records database and/or convert or
transition the Customer records database to Ameritech and/or a third party
of Ameritech's choosing.
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[***]
5.7 REPORTS. Attached as EXHIBIT "1" TO ADDENDUM "A" is a listing of the
reports that Quest will supply to Ameritech on a weekly, monthly and other
periodic basis, along with a description of the information contained in
each such report. The parties may by mutual agreement add or delete
reports from the list, with a goal to establish an intranet account whereby
Ameritech may electronically access the data in Quest's possession and
prepare such reports on such a frequency as Ameritech deems appropriate.
ARTICLE VI
CONFIDENTIALITY
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6.1 DUTY OF CARE. Each Party acknowledges that any Confidential Information
which may be provided to it by the other Party or which may be generated by
a Party in performing its obligations under this Agreement may have
substantial value to the Disclosing Party. Accordingly, each Receiving
Party agrees to take all reasonable and necessary steps to preserve the
confidentiality of all Confidential Information received from a Disclosing
Party, whether generated and/or communicated in writing, electronically,
orally, or otherwise. A receiving Party shall use not less than the same
degree of care to avoid disclosure of such Confidential Information as it
uses with respect to its own proprietary and confidential information of
like importance and, at a minimum, shall exercise reasonable care.
6.2 CONFIDENTIAL INFORMATION. For purposes of this Agreement, "Confidential
Information" shall include, without limitation, the terms of this
Agreement, Ameritech's Customer and End User lists and associated
information, Quest's rates or agreements with its Carriers, and such other
confidential engineering, technical, financial, business, marketing,
promotional, usage and sales data as a Disclosing Party shall designate as
"confidential," either in writing or orally.
6.3 RESTRICTIONS ON USE AND DISCLOSURE. Each Party recognizes and acknowledges
that a Disclosing Party is disclosing Confidential Information solely to
facilitate full performance of this Agreement by both Parties and each
Receiving Party agrees to, and shall, use the Confidential Information
disclosed to it by the Disclosing Party solely in furtherance of this
purpose and not for any other purpose. A Receiving Party shall restrict
disclosure of Confidential Information to such of its directors, officers,
employees, and agents as shall have obligated themselves in writing to
comply with the restrictions on use and disclosure contained in this
Agreement and who have a reasonable need to know such information for such
purpose and shall reproduce such information only to the extent necessary
for such purpose. A Receiving Party may disclose Confidential Information
to a Consultant, but if it does so, it must ensure that the Consultant is
obligated in writing to abide by the restrictions on use and disclosure
contained in this Agreement and that the Confidential Information bears
appropriate legends or statements indicating the confidential and/or
proprietary nature of the information. A receiving Party shall be liable
for any violation of the provisions of this ARTICLE VI by any such
Consultant. Except as expressly provided otherwise herein, a Receiving
Party shall not disclose Confidential Information to any third party.
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* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
6.4 EXCEPTIONS. The restrictions on disclosure by a Receiving Party of
Confidential Information shall not apply to: (i) information which at the
time of disclosure was generally available to the public; (ii) information
which subsequent to its disclosure by the Disclosing Party to the Receiving
Party is published or otherwise becomes available to the public through
means other than an act or omission of the Receiving Party; (iii)
information which was previously known to the Receiving Party free of any
obligation to keep it confidential or which is subsequently and
independently developed in good faith by the Receiving Party without
reference to or use of the Confidential Information; and (iv) information
rightfully acquired by a receiving Party in good faith from a third party
on a non-confidential basis without breach of an agreement to maintain said
information in confidence. Notwithstanding anything to the contrary
herein, a Receiving Party may disclose confidential Information if required
to do so by law, or if ordered to do so by a court or other governmental
authority of competent jurisdiction; provided, however, that a Receiving
Party shall provide the Disclosing Party prior written notice of any such
mandated disclosure and exercise its best efforts, consistent with sound
business practice, both to afford the Disclosing Party an opportunity to
contest the disclosure and to itself limit the extent of the disclosure to
the maximum extent practicable. Upon the requests of the Disclosing Party,
the Receiving Party shall use its best efforts to negotiate with any court
or governmental authority of competent jurisdiction that has compelled such
disclosure an appropriate protective order that would permit review of any
Confidential Information only by the court or appropriate staff of the
governmental authority and would limit any further disclosure to the
maximum extent possible.
6.5 OWNERSHIP. Confidential Information disclosed to and/or generated by a
Receiving Party is and shall remain the property of the Disclosing Party.
By disclosing the Confidential Information to a Receiving Party, the
Disclosing Party does not relinquish any of its proprietary rights and
interests therein and hereby specifically reserves all such proprietary
rights and interests to said Confidential Information. A Receiving Party
shall return (or, with the consent of the Disclosing Party, which shall not
be unreasonably withheld, destroy) all Confidential Information and all
copies thereof, including, without limitation, written and electronic
copies, as well as all summaries, notes, or other documents, materials or
things containing Confidential Information, to the Disclosing Party
promptly upon the reasonable written requests of the Disclosing Party and
upon termination of this Agreement.
6.6 INJUNCTIVE RELIEF. In the event of a breach or threatened breach by a
Receiving Party or its agents of the terms of this ARTICLE VI, the
Disclosing Party shall be entitled to an injunction prohibiting such breach
in addition to other legal and equitable remedies available to it in
connection with such breach. Each Party acknowledges that the Confidential
Information of the other Party is valuable and unique and that the use or
disclosure of such Confidential Information in breach of this Agreement
will result in irreparable injury to the other Party.
6.7 SURVIVAL. The Parties hereby agree that the confidentiality and non-use
undertakings reflected in this ARTICLE VI shall survive the termination of
this Agreement.
ARTICLE VII
EVENTS OF DEFAULT
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7.1 DESCRIPTION. Each of the following events, separately, shall constitute an
"Event of Default":
(A) A Party shall fail to pay when due any amount owed to the other Party
pursuant to this Agreement and any such failure shall continue
unremedied for ten (10) business days after written notice thereof
shall be given to the defaulting Party by the non-defaulting Party;
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(B) A Party shall fail to perform or observe in any material respect any
material covenant contained in this Agreement, and any such failure
shall remain unremedied for thirty (30) days after written notice
thereof shall have been given to the defaulting Party by the non-
defaulting Party;
(C) Any material action by a Party which directly or indirectly violates
any applicable federal, state or local law, ordinance or regulation,
or any FCC and/or state regulatory rules and policies.
7.2 DEFAULT BY AMERITECH. Upon the occurrence of any Event of Default by
Ameritech, Quest shall have the right to: (i) suspend Services under this
Agreement; (ii) terminate this Agreement and any other agreements or
instruments delivered to Quest connection with this Agreement; (iii)
declare all amounts payable by Ameritech to Quest hereunder immediately due
and payable; and (iv) exercise all other remedies available to it under
this Agreement and such other agreements and instruments or otherwise
available at law or in equity.
7.3 DEFAULT BY QUEST. Upon the occurrence of any Event of Default by Quest,
Ameritech shall have the right to: (i) terminate this Agreement and any
other agreements or instruments delivered by Quest in connection with this
Agreement; (ii) declare all amounts payable by Quest to Ameritech hereunder
immediately due and payable; and (iii) exercise all other remedies
available to it under this Agreement and such other agreements or
instruments or otherwise available at law or in equity.
7.4 CUMULATIVE REMEDIES. Each Party's rights and remedies hereunder shall be
cumulative and the exercise by a Party of any particular right or remedy
shall not prevent such Party from exercising any other right or remedy.
ARTICLE VIII
LIABILITY
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[***]
8.2 GENERAL INDEMNITY. Each party shall defend, indemnify and hold harmless
the other and the other's officers, directors, employees, and agents and
their successors and assigns against and from any and
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* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
all losses, liabilities, suits, damages, claims, demands, and expenses
(including, without limitation, reasonable attorneys' fees), whether based
on contract or tort (including strict liability), arising out of or in
conjunction with, but only to the extent that such losses, liabilities,
damages claims, demands, and expenses arise out of or in connection with,
claims or lawsuits brought by unaffiliated third parties alleging (1) the
negligent or intentional acts or omissions of the indemnifying party, its
Affiliate(s) or subcontractors, or the officers, directors, employees,
agents, successors and assigns of any of them, (2) the failure of the
indemnifying party, its Affiliate(s) or subcontractors to fully comply with
the provisions of this Agreement, (3) defective or malfunctioning Services
provided hereunder, and (4) assertions under Worker's Compensation or
similar laws made by persons furnished by the indemnifying party. The
indemnified party shall promptly notify the indemnifying party of any
written claim, loss, or demand for which the indemnifying party is
responsible under this Section.
ARTICLE IX
TERM OF AGREEMENT
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9.1 INITIAL TERM. Unless sooner terminated in accordance with ARTICLE VII
hereof, the initial term of this Agreement shall commence on the date
hereof and shall continue for a period of three (3) years after the
Services are initiated.
9.2 RENEWAL. Upon the conclusion of the initial term or any renewal term, this
Agreement shall be renewed automatically and shall continue in effect for
consecutive additional one (1) year renewal terms unless either party
delivers to the other Party a written notice of non-renewal at least one
hundred twenty (120) days prior to the expiration of the initial term or
the then-current renewal term.
9.3 SETTLEMENT PROCESS. Upon the expiration or other termination of this
Agreement, the invoice and payment process described in ARTICLE IV hereof
shall continue until Quest has received full payment for all amounts owed
to it in connection with this Agreement, including full payment for all
Wholesale Services purchased by Ameritech during any prior Period.
9.4 POST-TERMINATION RESPONSIBILITIES.
(A) Prior to the expiration or termination of this Agreement, and
extending for a reasonable period of time beyond the termination or
expiration of this Agreement, if deemed necessary by Ameritech, Quest
shall supply to Ameritech such reasonable support and assistance as
Ameritech shall specify to assist Ameritech in the orderly winding-
down of the performance of Services by Quest and the transition of
such services to Ameritech or to a successor selected by Ameritech.
These transition services shall include the transfer of 800/888 access
numbers and the transfer (and conversion to a different database
format, if necessary) of the End User preferences, usage and
outstanding balance database information to Ameritech or its chosen
service provider. Ameritech shall pay for the transition services
specified herein in accordance with the pricing provisions hereof, or
if not specified, at Quest's then-current prices.
(B) Except as required pursuant to Subsection (a) hereof, upon the
expiration or termination of this Agreement, each Party agrees to (i)
immediately cease all new use of the other Party's name, trade names,
trademarks and service marks, and logo; (ii) immediately deliver to
the other Party any and all materials not distributed bearing the
other Party's name, trade names, marks, or logos; and (iii) return all
proprietary and confidential information of the other Party to the
other Party. The obligations contained in this Section shall survive
the termination of this Agreement.
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(C) The expiration or termination of this Agreement shall not release
either Party from any liability, obligation or agreement which,
pursuant to any provision of this Agreement, is to survive or be
performed after such expiration or termination.
ARTICLE X
RELATIONSHIP OF THE PARTIES
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10.1 WHOLESALE SERVICES. With respect to the Wholesale Services, Ameritech's
relationship to Quest shall be that of a purchaser and reseller of services
only. Ameritech shall contract directly with its Customers and/or End Users
in its own name and shall not represent itself to be the agent or
representative of Quest. Quest Customer Service representatives will
respond to Ameritech's customer service calls by answering in Ameritech's
name.
10.2 NO JOINT EMPLOYMENT. Nothing in this Agreement shall be construed to
constitute Ameritech and Quest as joint employers of either Party's
employees or agents or Quest as a special employer of any employee or agent
of Ameritech.
10.3 RELATIONSHIP OF THE PARTIES. Each of the Parties shall act as, and shall
be, independent contractors in all aspects of their performance of this
Agreement. Nothing contained in this Agreement shall authorize either
Party to act as agent for the other, nor grant either Party authority to
make representations or agreements on behalf of the other. Nothing in this
Agreement shall be deemed to constitute or create a joint venture,
partnership, pooling arrangement or other formal business entity or
fiduciary relationship between Quest and Ameritech. Nothing in this
Agreement shall be construed to give any person or entity other than Quest
and Ameritech any legal or equitable right, remedy or claim under this
Agreement or any provision contained herein.
[***]
11
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[***]
ARTICLE XI
DISPUTE RESOLUTION
------------------
11.1 MEDIATION. The parties shall attempt in good faith to promptly resolve
any dispute relating to this Agreement by negotiation between their
executives who have authority to settle the controversy and who are at a
higher level of management than the persons with direct responsibility for
administration of this Agreement. Either party may give the other party
notice of any dispute not resolved in the normal course of business.
Within fifteen (15) days after receipt of such notice, the receiving party
shall submit to the other a written response. The notice and response
shall include (a) a statement of each party's position and a summary of
arguments supporting that position, and (b) the name and title of the
executive who will represent that party and of any other person who will
accompany the executive. Within twenty (20) days after receipt of the
disputing party's notice, the executives of both parties shall meet at a
mutually acceptable time and place, and thereafter as often as they deem
reasonably necessary, to attempt to resolve the dispute. Each party shall
honor reasonable requests for information made by the other. If the
parties are unable to resolve the dispute within sixty (60) days of the
disputing party's notice requesting mediation, then either party may
initiate arbitration of the dispute as provided below.
11.2 ARBITRATION. If the parties are unable to resolve a dispute by mediation
as provided above, or if either party fails to resort to or comply with a
request for such negotiation in a reasonable and timely fashion, then the
exclusive remedy for resolving disputes between Ameritech and Quest
relating to this Agreement shall be by binding arbitration in accordance
with the Center for Public Resources ("CPR") Model Procedure for Mediation
of Business Disputes. One (1) arbitrator having experience in the data
processing and/or telecommunications industry shall be selected by CPR to
adjudicate any such dispute, and the arbitration shall be conducted on an
expedited basis in the home city of the party against whom the arbitration
is being invoked. Each party shall bear its own expenses of the
arbitration, and the cost and expenses of the arbitrator shall be equally
shared by the parties. The arbitration award shall be in writing and shall
be final and binding upon the parties, and judgment thereon may be entered
in any court of competent jurisdiction.
11.3 LIMITATION. The requirements of this ARTICLE XI to utilize mediation and
arbitration shall not apply to disputes between the parties for which
injunctive relief is a remedy. During the pendency of any mediation and
arbitration conducted under this ARTICLE XI, both parties shall continue
the full performance of their respective obligations under this Agreement.
Negotiations pursuant to this ARTICLE XI are confidential and shall be
treated as compromise and settlement negotiations for purposes of the
Federal Rules of Evidence and State rules of evidence or any arbitration
proceeding between the parties.
ARTICLE XII
MISCELLANEOUS
-------------
12.1 ENTIRE AGREEMENT. This Agreement and the ADDENDA A, B AND C attached
hereto and incorporated herein by this reference constitute the entire
agreement among the Parties hereto and supersede and cancel any prior
agreements, representations, warranties, or communications, whether oral or
written, among the Parties relating to the transactions contemplated hereby
or the subject matter herein.
12
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
12.2 WAIVER. Any failure on the part of any Party hereto to comply with any of
its obligations, agreements, or conditions hereunder may be waived by any
other Party to whom such compliance is owed. A waiver under this SECTION
10.2 must be in writing signed by the Party to whom compliance is owed, as
specified in SECTION 10.1 above. No waiver of any provision of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a
continuing waiver.
12.3 AMENDMENTS. This Agreement may not be changed, altered or modified unless
such change, alteration or modification is in writing and signed by an
authorized representative of the Party against whom such amendment is to be
enforced.
12.4 SEVERABILITY. In the event that any provision of this Agreement or any
word, phrase, clause, sentence or other portion thereof should be held to
be unenforceable or invalid for any reason, such provision or portion
thereof shall be modified or deleted in such a manner so as to make this
Agreement, as modified, legal and enforceable to the fullest extent
permitted under applicable laws, and the balance of this Agreement shall
remain in full force and effect.
12.5 GOVERNING LAW. This Agreement shall be governed by, construed under, and
interpreted in accordance with the domestic laws of the State of Georgia.
12.6 NOTICES. All notices, requests, demands or other communications required
or permitted to be given or made hereunder shall be in writing and
delivered personally by the sender or overnight courier service, or sent by
pre-paid, first class, certified or registered mail, return receipt
requested, to the intended recipient at its address set out below. Any
such notice, demand or communication shall be deemed to have been duly
given on the next business day if sent by overnight courier, or three (3)
days after mailing, and in proving same it shall be sufficient to show that
the envelope containing the same was duly addressed, stamped and posted.
The addresses of the Parties for purposes of this Agreement are:
If to Quest: If to Ameritech:
Quest Group International, Inc. Ameritech Product Management
000 Xxxxxx Xxxxx 0000 X. Xxxxxxxxx Xxxxxx Xx., 0X0X
Xxxxxx Xxxx, Xxxxxxx 00000 Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxx, President ATTN: Xx. Xxx Xxxxxxx
Any Party may change the address to which notices, requests, demands, or
other communications to such Party shall be delivered or mailed by giving
notice thereof to the other Party hereto in the manner provided herein.
12.7 FORCE MAJEURE. If performance by either Party of any part of this
Agreement (other than the payment of money) is prevented by reason of any
flood, riot, fire, strike, earthquake, explosion, power blackout, civil
disturbance, labor dispute, war, change in government regulation, court
action, or any other cause beyond the reasonable control of that Party,
then that Party shall be excused from such performance to the extent of and
during the duration of such force majeure. If Quest is the Party claiming
the force majeure condition, then Ameritech shall be excused from making
payments hereunder to the extent and for the duration that Services are not
being performed by Quest, and if such force majeure continues unabated for
more than thirty (30) days, then Ameritech may terminate this Agreement
immediately upon written notice to Quest.
13
12.8 CONSEQUENTIAL DAMAGES. EXCEPT AS PROVIDED IN ARTICLE VIII HEREOF, NEITHER
PARTY SHALL BE HELD RESPONSIBLE TO THE OTHER PARTY OR TO ANY THIRD PARTY
FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES INCURRED
BY REASON OF A BREACH OF OR THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
12.9 ASSIGNMENT. Neither Party shall assign any of its rights or delegate any
of its obligations under this Agreement without the prior written consent
of the other Party, such consent not to be unreasonably withheld or
delayed; provided that, Ameritech may assign its rights and obligations
under this Agreement to an Affiliate without the consent of Quest, and any
Ameritech Affiliate may purchase the Services set forth in this Agreement
subject to the terms and conditions hereof. This Agreement shall be
binding on the parties and their respective legal successors and permitted
assigns, subject to the terms and conditions hereof.
12.10 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized the day and year first written
above.
QUEST GROUP INTERNATIONAL, INC. AMERITECH COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ---------------------------
Name: Xxxxxxx X. Xxxxxx Name:_________________________
----------------------------
Title: President Title: _______________________
---------------------------
14
AMENDMENT
THIS AMENDMENT ("Amendment") is made this 13 day of November, 1997, to the
Agreement dated September 30, 1997 (the "Agreement") between QUEST GROUP
INTERNATIONAL, INC. ("Quest") and AMERITECH COMMUNICATIONS, INC. ("Ameritech").
________________________________________
Notwithstanding anything to the contrary in the Agreement, it is hereby
agreed between Quest and Ameritech as follows:
1. Except as expressly provided to the contrary herein, terms used in
this Amendment shall have the meaning defined in the Agreement.
2. Section 2.6 of the Agreement is amended by adding the following
sentences as a new subsection (b) thereof:
"(b) Quest warrants that its Services and any information supplied by
Quest to Ameritech hereunder shall properly perform Year 2000
Processing. Quest shall promptly remedy any breach of this warranty at
no additional charge to Ameritech by correcting its Services so as to
make them capable of correctly performing Year 2000 Processing.
Quest's breach of this warranty shall not be subject to any provisions
regarding limitations of Quest's liability set forth in this
Agreement. "Year 2000 Processing" means processing which is dependent
upon usage of calendar dates, including dates on or after January 1,
2000. Year 2000 Processing includes, in addition to software provided
by Quest, any third party software embedded in the Services that
manages and/or manipulates data involving dates, including single
century formulas and multi-century formulas. "Proper processing" means
the Services will not cause an abnormally ending scenario or
result in incorrect values generated involving dates."
3. The following is hereby added the Agreement or as a new Section 2.7:
[***]
4. The second and third sentences of Section 4.1(a) of the Agreement are
hereby deleted to their entirety and replaced with the following:
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
"Quest shall on a monthly (or such arber frequency as may be negotiated
with the Carrier) basis prepare and deliver to Ameritech an invoice
summarizing the various Transmission Services charges incurred by Ameritech
during the immediately proceeding billing period. Quest's failure to
forward an invoice within the prescribed time period shall not relieve or
otherwise modify or alter in any way Ameritech's obligation to make the
payments required herein; provided that, in no event will Quest invoice
Ameritech for Services which were performed more than ninety (90) prior to
the date of the invoice."
5. In the third sentence of Section 4.1(b) of the Agreement, the words
"fifteen (15)" are deleted and replaced with the words "thirty (30)" (or such
other frequency as may be negotiated with the Carrier).
6. Section 4.1(e) of the Agreement is amended in the first sentence by
replacing the words "fifteen (15)" with the words "thirty (30)" and both
instances replacing the word "week" with the words "billing period" (or such
other frequency as may be negotiated with the Carrier), and in the second
sentence by replacing the word "month" with the words "billing period" (or such
other frequency as may be negotiated with the Carrier).
7. Section 4.3(a) of the Agreement is amended by adding the following
sentence after the third sentence thereof: "Ameritech shall be entitled to
interest (calculated using the prime rate (the average rate published in The
---
Wall Street Journal on the payment due date) plus two percent (2%)) on any
-------------------
overpayment to Quest.
8. The following is hereby added to the end of Section 5.4 of the
Agreement:
"During the term of this Agreement and for one (1) year thereafter. Quest
shall not directly solicit the retail prepaid phone card business of those
Ameritech Customers identified in Addendum "C" or any other Ameritech
Customer of whom Quest becomes aware as a result of Quest's performance of
Services hereunder. Nothing herein contained shall prohibit Quest from
responding to an unsolicited request for proposal from any such customer,
or from pursuing the retail prepaid phone card business of such customer if
that customer is no longer purchasing services from Ameritech."
9. Except as expressly amended herein, the Agreement shall continue in
full force and effect. In the event of any conflict, inconsistency or
incongruity between the terms of this Amendment and any terms of the Agreement,
this Amendment shall govern and control.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and date written above.
AMERITECH COMMUNICATIONS, INC. QUEST GROUP INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
------------------------- --------------------------
Title: President - ACI Title: President
------------------------ -------------------------
Addendum "A"
------------
PRICING
1. Switching Charge.
----------------
At the end of each month, Quest will calculate the number of minutes of use
during that month, and the applicable price from the following table will be
applied against all of the minutes of use during that month to arrive at the
appropriate Switching Charge.
[***]
2. System Expansion.
----------------
[***]
(b) Any System hardware and software ("Equipment") purchased in accordance with
this Section shall be owned solely and exclusively by Ameritech. Quest shall not
have any interest in such Equipment, and shall not pledge, hypothecate or suffer
a lien upon such Equipment. Quest shall bear the risk of loss or damage to such
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
Equipment while the same is in Quest's custody and control, and shall obtain
insurance, with Ameritech named as the loss payee, in the amount of the purchase
price of the Equipment.
(c) Upon the expiration or termination of this Agreement, Ameritech shall have
the right to enter upon Quest's premises and remove the Equipment, or to have
Quest perform the removal for Ameritech. In either event, Ameritech shall pay
or reimburse Quest for the reasonable costs incurred in removing the Equipment
from Quest's premises, transporting it to a location of Ameritech's choosing,
and reinstalling it in that new location.
[***]
3. Other Charges.
-------------
[***]
4. Management Fee.
--------------
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[***]
5. Technology Development Fund.
---------------------------
[***]
6. Transmission Services.
---------------------
(a) Ameritech will purchase Wholesale Transmission Services from Quest for
prepaid phone card calls originating from anywhere within World Zone One other
than the States of Illinois, Indiana, Michigan, Ohio and Wisconsin. Quest will,
at Ameritech's request and for so long as and to the extent that Ameritech
requests, provide Retail Transmission Services for prepaid phone card calls
originating from the States of Illinois, Indiana, Michigan, Ohio and Wisconsin.
In both instances, calls may terminate anywhere in the United States or
internationally.
(b) The rates quoted in this Section 6 for both Wholesale Transmission Services
and Retail Transmission Services is inclusive of all other Carrier charges
associated with such a call, including without limitation facilities
preparation, utilization, transport, access charges, and 800 database access
charges, but excluding any charges referred to in Sections 1 and 3 above. Quest
will, at Ameritech's specific request or from time to time on its own
initiative, competitively bid the Carrier community to determine if Quest is
able to procure Carrier transport service which meets the requirements of this
Agreement at better prices for the parties.
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
(e) For each Retail Transmission Service provided by Quest to Ameritech's
Customers and/or End Users, Quest shall charge the End Users a per-minute fee
for each completed minute, rounded up to the next minute, in accordance with the
following schedule:
Card Denomination Rate
----------------- ------
Variable $.4000
30 Units $.3333
60 Units $.3000
67 Units $.2985
100 Units $.2850
143 Units $.2797
200 Units (plus any recharges) $.2750
If necessary, Quest will file tariffs with the appropriate public utility
commission(s) to enable Quest to provide these services at these rates.
In connection with the Retail Transmission Services to be provided by Quest
hereunder, Ameritech will (1) collect the applicable fee from the Customer
and/or End User for payment to Quest if and when the End User receives service
from Quest, and (2) provide to Quest certain, administrative, production,
recording and call processing services, including identifying and contracting
with the Customer and/or End User, production and distribution of the prepaid
phone cards, verifying, rating and timing of calls, and preparation of message
detail records.
[***]
7. Facilities Siting.
-----------------
Both parties shall in good faith undertake a joint assessment of the economic
and operational benefits of locating one (1) or more of Quest's Systems and/or
operational facilities within Ameritech's five (5) State region. The parties
shall supply each other with all relevant information necessary to perform the
assessment and shall explore any reasonable option to make the decision a
financially and operationally viable option for both parties.
* Portions of this Agreement have been redacted and preserve the Company's
confidential information.
Addendum "B"
------------
SERVICE STANDARDS
I. PLATFORM SERVICE STANDARDS
--------------------------
The system shall operate 24 hours a day, 7 days a week. Subject to the
qualifications set forth below, Quest's system down time shall not exceed [***]
during any rolling 12 month period. System down time shall not begin to accrue
until 120 days after the system is turned up. Quest shall report all system
downtime to Ameritech.
System down time shall mean the unavailability of the switching system to
process calls. System down time shall not include: events attributable to
excess volume beyond the capacity committed by Ameritech, scheduled maintenance
and upgrades, force majeure, or network failures or problems attributable to
Carriers approved by Ameritech. Upon the occurrence of one of these events,
Quest shall use all reasonable efforts to restore service as soon as
commercially practicable. Upon the conclusion of said events, Quest shall
resume performing to established quality standards.
Until the monthly volume of minutes of use reaches [***] between the hours of
12:00 a.m. and 6 a.m., Quest shall have [***] to respond to system outages
before any system down time is accrued.
During any month after the cumulative annual system down time has exceeded [***]
during the prior 12 month period, Quest shall be subject to performance
penalties in the form of credits as a percentage reduction of its monthly
invoice charges for switching service as follows:
[***]
Should the platform be down for greater than [***] in any two months of any six
month period then Ameritech shall have the right to terminate this Agreement.
Any credits due will be calculated on the past month's invoice for switching
services and be applied to the current month's invoice.
II. TRANSMISSION STANDARDS
----------------------
Quest and Ameritech shall in good faith negotiate with Carriers to establish
network performance/reliability standards. Those standards, when agreed to,
shall be attached to this Agreement as an Addendum.
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
III. CUSTOMER SERVICE STANDARDS
--------------------------
Customer Service shall operate 24 hours a day, 7 days a week. Subject to the
qualifications set forth below, Quest's customer service shall meet reasonable
minimum quality standards regarding average system time and average call abandon
rates as mutually agreed to by Quest and Ameritech. Customer service quality
standards shall not apply until [***] after the system is turned up.
Customer service minimum standards shall not be less than those set forth in
Quest's response to Ameritech's RFP. Customer service quality standards shall
not apply to events related to excess volume beyond the capacity committed by
Ameritech, scheduled maintenance and upgrades, force majeure, or network
failures or problems attributable to Carriers approved by Ameritech. Standards
shall also be adjusted for special programs or new program offerings. Upon the
occurrence of one of these events. Quest shall use all reasonable efforts to
restore service as soon as commercially practicable. Upon the conclusion of
said events. Quest shall resume performing to established quality standards.
Until the monthly volume of minutes of use reaches [***] service quality
standards shall not apply between the hours of 12:00 a.m. and 6 a.m.
During any month where Quest's performance, as set forth above and agreed to by
Quest and Ameritech, does not meet the quality standards, Quest shall be subject
to performance penalties in the form of credits as a percentage reduction of its
monthly invoice charges for customer service as follows:
[***]
Any credits due will be calculated on the past month's invoice for switching
services and be applied to the current month's invoice.
IV. ADDITIONAL SPECIFICATIONS
-------------------------
Additional technical and operational specifications of the Service being
provided by Quest to Ameritech are contained in Section Two of Quest's Response
to Ameritech's Request For Proposal RFP 00301-SM, which specifications are
attached to and incorporated in full into this Addendum "B" as Attachment "B-1."
In the event of any conflict, inconsistency or incongruity between any term or
condition of this Agreement and Attachment B-1, the terms and conditions of this
Agreement shall govern and control.
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
Addendum "C"
------------
Quest Customers (for purposes of Section 5.4 of the Agreement):
[List to be attached hereto]
Entities (for purposes of Section 10.4 of the Agreement):
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
Addendum "D"
------------
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
