NSC TELEMANAGEMENT CORPORATION
AGGREGATEE PAY PHONE COMMUNICATIONS SERVICES AGREEMENT
(For QWEST Services)
This Aggregatee Pay Phone Communications Services Agreement (the
"Agreement') by and between NSC Telemanagement Corporation, whose address is
0000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 ("NSC"), and
Magic Communications Group, Inc. ("PSP") with offices
at 0 xxxx Xxxx Xx. Xxxxxxxx, XX 00000 and with phone number of
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(914) 345 - 0800 and fax number of ( 000 ) 000-0000 is effective as of the
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date approved by NSC below its signature (the "Effective Date").
RECITALS
A. NSC has entered into a Pay Phone Communications Services Agreement
(the "QWEST Agreement") with Qwest Communications Corporation, a Delaware
corporation and USLD Communications, Inc., a Texas corporation (collectively
referred to as "QWEST") to provide operator and other communications services
under the QWEST brand name to clients of NSC; and
B. PSP is a payphone service provider that operates certain pay
telephone stations and desires to utilize QWEST's services (the "Services")
described in this Agreement,
AGREEMENT
In consideration of the mutual covenants and promises set forth herein, the
parties agree as follows:
1. Services. NSC has contracted with QWEST to arrange for the provision of or
directly provide the Services set forth below with respect to those PSPs' pay
phones lines ("Identified Lines" or "ANIs") agreed upon by NSC and PSP. PSP
shall submit ANIs for inclusion under this Agreement to NSC from time to time
while this Agreement is in effect, PSP shall submit such ANIs in a format
acceptable to NSC. Upon NSC's receipt of a properly formatted ANI submission,
NSC shall determine within fifteen (15) days whether all or any portion of the
submitted ANIs are acceptable under this Agreement. ANIs accepted by NSC for
submission to QWEST under this Agreement shall typically be submitted to QWEST
by NSC by the 20th day following the date NSC received a properly formatted ANI
list from PSP.
1.1 QWEST Zero Minus (0-/00-) and Zero Plus (0+) Calls. PSP will use
QWEST as its operator services provider during the Commitment Term (as defined
below) and any roll-over term of this Agreement for the Identified Lines if PSP
makes such election on the customer profile form executed in conjunction with
this Agreement (see Attachment A). Commission terms and certain other terms with
respect to such Services are set forth on Attachment A attached hereto.
1.2 QWEST International Operator Services. PSP will use QWEST as its
international long distance service operator ("International Services") during
the Commitment Term (as defined below) and any rollover term of this Agreement
for the Identified Lines if PSP makes such election on the customer profile form
executed in conjunction with this Agreement. Commission terms and certain other
terns with respect to such Services are set forth at Attachment B, attached
hereto.
1.3 QWEST Repair and Refund Operator Services. NSC has contracted with
QWEST to provide operators and origination network to QWEST operator centers for
repair and refund operator services ("R&R Services") during the Commitment Term
(as defined below) and any roll-over term of this Agreement with respect to all
Identified Lines. To the extent that QWEST charges NSC for R&R Service calls
with respect to any Identified Line, PSP shall pay to NSC the same charge.
1.4 QWEST Resolution Services. NSC has contracted with QWEST to provide
for the resolution of end user refund requests calls by way of (i) instant LEC
credit or (ii) instant call completion (collectively, "Resolution Services').
Such Resolution Services shall be billed by NSC to PSP in accordance with
Tariffs (&-fined in Section 2.1 below) and Attachment C, attached hereto,
applicable to QWEST.
1.5 QWEST COCOT Access Services. PSP shall use QWEST for COCOT Access
Service ("CAS") on Identified Lines during the Commitment Term (as defined
below) and any roll-over term of this Agreement, if so elected by PSP on the
customer profile form executed in conjunction with this Agreement. NSC has
contracted with the QWEST to resell the incumbent local ex-change carriers' (the
"ILEC") dial tone on the terms and conditions contained in. Attachment D,
attached hereto.
1.6 Payment of Commissions: Treatment of Invoices. NSC shall pay PSP
the commissions set forth in this Agreement and the Attachments and Schedules
hereto with respect to all Identified Lines of PSP by the last day following the
end of each calendar month in which NSC received such commissions from QWEST.
Each commission payment and invoice for Services shall be accompanied by a.
statement and data, in the form and media determined by NSC from time to time.
2. Rates.
2.1 Tariffed Services and Rates. PSP acknowledges that QWEST
provides communications services pursuant to various Tariffs (defined below),
including without limitation USLD Tariff F. X. X. Xx. 0 xxx 0, XXXXX Xxxxxx
F.C.C. No. 2 and 3, and other federal tari.ffs as well as applicable state
tariffs (collectively,. "Tariff(s)"), which are on file with the Federal
Communications Commission (the "FCC") and applicable state regulatory bodies,
and which may be modified from time to time by QWEST in accordance with law and
thereby affect the Services and rates furnished to PSP. QWEST has agreed with
NSC to comply with the terms of their respective then effective Tariffs. The
rates (the "Rates") to be charged and additional terms for the Services ordered
above are more fully detailed in the attachments and Tariffs, each of which are
incorporated into and made a part of this Agreement. PSP acknowledges that QWEST
reserves the right to eliminate any Service offerings or modify any charges for
service offerings, without notice to NSC or PSP, at any time, and PSP agrees to
hold NSC harmless for any such changes. PSP acknowledges that NSC may terminate
the QWEST Agreement if QWEST makes such changes and PSP agrees to hold NSC
harmless for any such termination. Upon such termination, NSC shall be liable to
PSP for only accrued but unpaid commission and charges through the termination
date.
2.2 Fraud and Bad Debt. PSP shall be fully responsible for fraud and
bad debt relating to any Identified Line from the Demarcation Point. For this
purposes of this paragraph the term "Demarcation Point" means the physical
point on a telephone line where ownership or control of such telephone line by
a local exchange carrier ceases and ownership or control of such telephone
line by PSP begins. PSP shall assist NSC and QWEST in good faith with the
resolution of fraud or bad debt issues relating to that part of any telephone
line owned or controlled by any party other than PSP, where such telephone
line relates to an Identified Line, To the extent QWEST or any LEC bills back
to NSC any amount for uncollectable accounts, such amount shall be withheld
from amounts due PSP under this or any other Agreement involving PSP, NSC and
QWEST, at the sole discretion of NSC.
3. Obligations of PSP.
3.1 PSP Information. PSP is a corporation, partnership, limited
liability QWEST, or other business entity duly organized and in good
standing under the laws of its state of organization. PSP represents that
the address listed above is its principal office (as filed with governmental
authorities).
3.2 PSP's Obligations.
(a) PSP represents and warrants that it is now and agrees and
covenants that it will remain in compliance with all laws, rules, and
regulations relating to PSP's obligations in conjunction with this Agreement,
including without limitation, provision of information to end-users regarding
such Services and provision of methods for the caller to use alternative
carriers as set forth herein.
(b) PSP is solely responsible for ensuring that pay phones
provided with Services under this Agreement are correctly programmed and
labeled.
(c) PSP shall provide NSC and QWEST, in a form and media
acceptable to NSC and QWEST, all information and data required by NSC or
QWEST to provide Services for each Identified Line. PSP acknowledges that
all ANIs submitted by PSP are subject to prompt approval and acceptance by
QWEST.
3.3 Payment of Invoice. As set forth in this Agreement, there may be a
charge applicable to certain Services provided to PSP hereunder. In the event a
charge is applicable, PSP agrees to pay to NSC the invoiced amount of such
charge(s) within ten (10) days after receipt of such invoice. Any applicable
federal, state, or local use, excise, sale or privilege taxes, duties or similar
liabilities, chargeable to or against QWEST or NSC because of the Services
provided to PSP as well as any disbursements or expenses under this Agreement
shall also be charged to and be payable by PSP. PSP may offset any amounts
otherwise due PSP under this Agreement or any other agreement between NSC and
PSP or their wholly owned subsidiaries against any other amounts owed to NSC by
PSP under this Agreement or any other agreement between NSC and PSP. Any payment
received by NSC later than ten (10) days after the invoice date shall be subject
to an interest charge on delinquent amounts at the rate of one and one-half
percent (1.50%) of the amount of the invoiced payment per month, or the maximum
rate allowable by law, whichever is lower. In the event PSP disputes any portion
of an invoice or commission statement, PSP will send its written dispute ("PSP's
Dispute Notice"), with supporting information, along with its full payment of
the invoice, to NSC on or prior to the invoice due date. NSC will promptly
notify PSP if additional information is required to evaluate the dispute and
will post any correcting entries at the conclusion of its review of the dispute
which review and determination shall be completed within 120 days after receipt
of PSP's Dispute Notice. If PSP fails to pay the full amount of any invoice when
due and such amount remains unpaid for five (5) business days after written
notice of such payment failure is received by PSP from NSC ("PSP's Invoice
Payment Default"), then NSC may, and PSP specifically agrees that NSC may, at
any time, and without further notice to PSP, discontinue providing Services to
PSP, which will not limit any of NSC's other rights and remedies under this
Agreement.
4. Term and Termination.
4.1 This Agreement shall commence on the Effective Date and remain in
full force and effect for a period of three (3) years commencing upon the
Effective Date, unless earlier terminated as provided herein (the "Commitment
Term"). In the event that PSP breaches this Agreement prior to expiration of the
Commitment Term, PSP shall be deemed to have committed a "Commitment Term
Breach". PSP acknowledges that the QWEST Agreement may be terminated prior to
expiration of the Commitment Term, by QWEST or NSC, with or without cause, If
the QWEST Agreement is so terminated, this Agreement shall be terminated
automatically as of the termination date of the QWEST Agreement and PSP will
hold NSC harmless for any such termination.
4.2 Unless either party shall notify the other party in writing at
least thirty (30) days prior to the expiration of the Commitment Term, upon
expiration of the Commitment Term, this Agreement shall rollover on a
month-to-month basis and shall be terminable by NS C upon at least thirty (30)
days prior written notice to the PSP.
4.3 If PSP defaults in the performance of any of its duties or
obligations under this Agreement (excluding a default in payments to be made
which will be governed by other provisions), which default is not
substantially cued within twenty (20) days after written notice is received by
the defaulting party specifying the default, then NSC may, by giving written
notice thereof to PSP, terminate this Agreement as of the date of the
termination notice or as of a future date specified in such notice of
termination.
4.4 Either party may terminate this Agreement immediately if the
other party becomes or is declared insolvent or bankrupt, is the subject of
any proceedings related to its liquidation, insolvency or for the appoint
rennet of a receiver or similar officer, makes an assignment for the benefit
of all or substantially all of its creditors.
4.5 In the event that the QWEST Agreement is terminated for any reason
prior to the expiration of the Commitment Term of this Agreement, this Agreement
shall be deemed terminated as of the effective date of the termination of the
QWEST Agreement.
5. Miscellaneous Provisions.
5.1 Force Majeure. Each party shall be excused from performance under
this Agreement for any period, and the time of any performance shall be
extended, to the extent reasonably necessary under the circumstances if such
party is prevented from performing, in whole or in part, its obligations under
this Agreement as a result of acts or omissions by a third parry or any act of
God, any outbreak or escalation of hostilities, war, civil disturbance, court
or regulatory order, cable cut, labor dispute, or the nonperformance of any
third party service or billing PSP (including QWEST), or any other cause
beyond such party's reasonable control. Such nonperformance on the part of
either party shall not be considered a default under this Agreement or a
ground for termination of this Agreement, provided that the party whose
performance has been excused performs such obligation as soon as is reasonably
practicable after the termination or cessation of such event or circumstance.
5.2 Assignment. PSP may not assign this Agreement or any of its
rights hereunder without the prior written consent of NSC. NSC may freely
assign its rights and obligations under this Agreement.
5.3 Limitation of Liability. Other than Tariffs and any obligation NSC
has to pay PSP commissions hereunder, IN NO EVENT SHALL NSC OR QWEST OR EITHER
OF THEIR RESPECTIVE AFFILIATES OR SUBSIDIARIES BE LIABLE TO PSP OR ANY OTHER
PERSON, FIRM, OR ENTITY IN ANY OTHER RESPECT, FOR DAMAGES, EITHER DIRECT,
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL ACTUAL, PUNITIVE, OR OTHERWISE, OR
FOR ANY LOST PR0FITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF ANY
MISTAKE, ACCIDENT, ERROR, OMISSION, INTERRUPTION, OR DEFECT IN TRANSMISSION, OR
DELAY ARISING 0 UT OF OR RELATING TO THE SERVICES OR THE OBLIGATIONS OF Q WEST
OR NSC PURSUANT TO THE Q WEST AGREEMENT, THIS AGREEMENT, AND ANY EXHIBITS,
ATTACHMENTS, OR SCHED ULES THERETO INCL XXXXX, WITHO UT LIMITATION, ANY FALL URE
TO PRO VIDE TIMEL Y 0R ACCURATE BILLING SERVICES, OR ANY FAIL URE TO TIMELY OR
ACCURATELY PROVIDE ANY PORTION OF THE SERVICES, OR CONDITIONS WHICH MAY RESULT
FROM ACTI0NS BY REGULATORY OR JUDICIAL AUTHORITIES OR OTHER CARRIERS OR THIRD
PARTIES THAT QWEST, NSC, OR EITHER OF THEIR RESPECTIVE AFFILIATES RELY ON TO
PROVIDE SERVICE TO PSP. QWEST, NSC, AND THEIR RESPECTIVE AFFILIA TES MAKE NO
WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTI0N, QUALITY,
MERCHANTABILITY, COMPLETENESS, OR FITNESS FOR ANY PURPOSE OF QWEST SERVICES,
BILLING SERVICES OR LOCAL ACCESS OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES ARE HEREBY EXCL UDED AND DISCLAIMED.
5.4 Indemnification. PSP will protect, defend, hold harmless, and
indemnify NSC, its affiliates, officers, directors, employees, and agents
from and against any loss (including negligence), claim, action, liability,
cost, judgment, or expense (including attorney fees) brought by any of PSP's
end-users or relating to the installation, operation, failure to operate or
maintain, removal, presence, condition, location, or use of any phone covered
by this Agreement,
5.5 Trademark, Each party acknowledges that it will acquire no
rights in any trademark, service xxxx, trade name, or other intellectual
property used or owned by the other party by reason of this Agreement and
will take no action that is inconsistent with this acknowledgment. Neither
party will use any trademark, service xxxx, trade name, or other
intellectual property used or owned by the other party without the prior
written consent of such other party, provided that NSC may disclose to third
parties that PSP is a customer of NSC without first obtaining PSP's consent.
5.6. Notice s. All notices or other communications under this
Agreement shall be in writing and deemed to have been received on the
earlier of the date personally delivered, the next business day after
transmitted by facsimile, or the third business day after transmitted by
certified U.S. mail postage prepaid. Notices to each NSC or PSP shall be
made at the address, facsimile and telephone numbers first set forth above
for the subject party or at such other address as may be noticed by one
party to the other
5.7 Confidentiality and Publicity. The parties shall keep the
financial terms of this Agreement confidential during the Commitment Term of
this Agreement and during the three (3) year period thereafter, Should
either parry be required by legal process to disclose such information, that
party shall immediately notify the other to allow the other adequate time to
contest such disclosure. Notwithstanding the foregoing, NSC shall be allowed
to disclose the nature and contents of this Agreement to the extent required
by law to any regulatory commission and the QWEST Agreement. NSC shall also
have the right to disclose the fact that PSP is a customer of QWEST. All
other press and media releases, public announcements, and public disclosures
by either of the parties relating to this Agreement or its subject matter,
including, without limitation, promotional or marketing material (but not
including any announcement intended solely for internal distribution by a
party to its directors, officers and employees, and which includes a notice
that such information is confidential, or any disclosures required by legal,
accounting, regulatory or stock exchange requirements beyond the reasonable
control of such party) shall be coordinated with and approved in writing by
both parties prior to the release thereof.
5.8 Entire Agreement. This Agreement (including the attachments hereto)
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, whether written or oral, between the parties
with respect to the subject matter of this Agreement, and there are no
representations, understandings or agreements relating to this Agreement
that are not fully expressed herein,
5.9 Exhibits. All attachments annexed to this Agreement are
expressly made a part of this Agreement as if completely set forth herein.
All references to this Agreement shall be deemed to refer to and include
this Agreement and all such Exhibits as well as the Tariffs.
5.10 Amendments: No Oral Modifications. Once this Agreement has
been fully executed, any amendment hereto must be made in writing and
signed by the party against whom enforcement is sought. The parties
expressly waive any challenge they may have to this no oral modification
provision.
5.11 Independence of Parties. Neither party shall have the authority
to bind the other by contract or otherwise or to make any representations or
guarantees on behalf of the other. Both parties acknowledge and agree that the
relationship arising from this Agreement does not constitute a joint venture,
partnership, employee relationship, or franchise. Each parties' employees will
not be or be deemed to be the employees of the other party or joint employees.
Each party assumes full responsibility for the acts of its employees and for
their supervision, daily direction and control. Neither party will be
responsible for worker's compensation, disability benefits, unemployment
insurance, withholding taxes, social security, and any other taxes or benefits
for the employees of the other party. The parties further acknowledge that
they are each service providers in a highly competitive industry. Each party
may do business with customers and end-users of the other provided, however,
that they do not use the other party's confidential information to obtain such
customers.
5.12 Governing Law. This Agreement, including all matters relating to
the validity, construction, performance, and enforcement thereof, shall be
governed by the laws of New York without giving reference to its principles of
conflicts of law, except to the extent the Communications Act of 1934, as
amended, and as interpreted, applies.
5.13 Arbitration of Disputes.
(a) Any dispute arising out of this Agreement, which cannot
be resolved between the parties, shall be settled by binding arbitration at
the office of the American Arbitration Association ("AAA") in accordance with
the Commercial Arbitration Rules of the American Arbitration Association ("AAA
Rules"), as amended by this Agreement. Neither party may seek injunctive
relief of any kind prior to the confirmation of an arbitration award. The
arbitrator may award reasonable attorneys' fees, expenses and arbitration
costs to the prevailing party.
(b) One Arbitrator shall be appointed in accordance with the
AAA Rules within sixty (60) days of the submission of the demand for
arbitration, unless both parties otherwise agree in writing. The arbitration
shall designate a time and place in Washington D.C., Pleasanton, California or
such other location as NSC may determine in its sole discretion. The arbitration
hearing shall be commence within thirty (30) days after appointment of the
Arbitrator. Discovery shall be limited by the Arbitrator to the extent possible
in order to administer a timely and cost-effective result. There shall be no
mandatory disclosure requirements and discovery of documents shall be limited to
that which is relevant and admissible under the Federal Rules of Evidence. The
Arbitrator is authorized to grant, upon a showing of good cause, any party's
request for a protective order or to limit discovery. Any disputes relating to
discovery or other pre-hearing matters shall be presented to the Arbitrator for
final and binding resolution. The parties shall exchange lists of witnesses and
copies of all exhibits that the party intends to introduce at the hearing at
least thirty (30) days prior to the arbitration hearing. The Arbitrator shall
not be able to award, nor shall any party be entitled to receive, punitive,
incidental, consequential, exemplary, reliance, or special damages, including
(without limitation) damages for lost profits. The Arbitrator's decision shall
follow the plain meaning of the relevant documents, and shall be final, binding,
and enforceable in a court of competent jurisdiction, The decision of the
Arbitrator is appealable only for mistakes of law. Nothing in this Paragraph
5.13 shall relieve either party of its payment or service obligations under this
Agreement during the pendency of any arbitration. The arbitration award may be
confirmed by any court of competent jurisdiction. Waiver. Neither the waiver by
either of the parties hereto of a breach or a default under any provisions of
this Agreement, nor the failure of either of the parties, on one or more
occasions, to enforce any of the provisions of this Agreement or to exercise any
right or privilege hereunder shall thereafter be construed as s waiver of any
subsequent breach or default of a similar nature, or as a waiver of any of such
provisions, rights, or privileges hereunder.
5.14 Survival, Neither the expiration or termination of this Agreement
shall limit or affect the obligation of PSP to pay NSC all amounts incurred
hereunder, prior to such expiration or termination.
5.15 Headings. The headings of sections and subsections used in
this Agreement are for convenience only and are not part of its operative
language, They shall not be used to affect the construction of any provisions
hereof,
5.16 No Third Party Beneficiaries. The representations, warranties,
covenants, and agreements of the parties set forth in this Agreement are not
intended for, nor shall they be for the benefit of or enforceable by, any person
not a party hereto.
5.17 Severabilitv. In the event that anyone or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never
been contained herein.
5.18 PSP Authorization. PSP represents that the person executing this
Agreement has been duly authorized by PSP to execute and bind PSP to the terms
and conditions contained herein. PSP, with full knowledge of all terms and
conditions herein, does hereby warrant and represent that the execution,
delivery, and performance of this Agreement are within PSP's powers, have been
duly authorized, and are not in conflict with law or the terms of any charter or
bylaw or any agreement to which PSP is a party or by which it is bound or
affected. The individual signing this Agreement agrees that (s)he shall have
personal liability if this Agreement is not duly entered into by a legal entity.
5.19 Execution; Counterparts; Facsimile Delivery. This Agreement may
be executed by each of the parties in counterparts, including copies transmitted
by facsimile, and, if it is, each counterpart shall be deemed to be an original
instrument but the counterparts together shall constitute only one Agreement.
This Agreement will be deemed fully executed by both parties if the
counterparts, taken together, bear the signatures of duly authorized
representatives of each of the parties.
5.20 Appointment as Agent. PSP hereby appoints NSC as its exclusive
agent with respect to matters pertaining to the Services and Q'WEST. PSP
authorizes NSC to issue necessary orders and coordinate matters relating to the
Services. PSP acknowledges that, upon implementation of Services hereunder, each
Service will be provided by QWEST. PSP shall not, except as set forth in this
Agreement, contact QWEST or attempt to enter into an agreement directly with
QWEST for the provision of Services.
5.21 Waiver of Dial-Around Payment Obli ation. PSP shall waive NSC's
and QWEST's obligation to pay "dial around" (a.k.a. "per call') compensation
mandated by the FCC in exchange for NSC's and QWEST's agreement to not charge
PSP for monthly recurring PICT charges imposed by the local exchange carrier
(the "LEC') or QWEST. PSP's waiver of FCC-mandated dial around compensation
shall be limited to the then current PIC'C charge being imposed by the QWEST
($2.75 per pay phone ANI per month as of May 1, 1999).
The parties have executed this Agreement as of the Effective Date set forth
below.
NSC Telemanagement Corporation Magic Communications Group, Inc.
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( Name of PSP)
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxxx
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Title: General Manager Title: VP
--
Effective Date: 5/19/99 Date: 5/99
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Attachment A
OPERATOR SERVICES
A.1.1. PSP agrees and warrants that QWEST shall be its operator
service PSP during the Commitment Term for the Identified Lines. QWEST has
contracted to provide live and automated operator assistance for the
Identified Lines. Each long distance call originating from PSP and placed
through QWEST may be charged to select credit cards, Telco cards, or the
destination number, if collect. PSP acknowledges that long distance calls
placed through QWEST may, at QWEST's discretion, be charged to third-party
numbers.
A.1.2. PSP shall configure its system and/or pay phones so that 911
emergency calls (e.g., police, fire, ambulance and poison control), where
available, and similar emergency calls, will be automatically routed to the
appropriate party or clearing house without the intervention of NSC or QWE$T.
PSP acknowledges that emergency calls that reach a QWEST operator shall be
handled in accordance with QWEST's standard operating procedures. QWEST has
contracted to use its best efforts to make emergency telephone numbers
required by state Public Utilities Conunission tariffs available to end-users.
A.1.3, PSP represents, warrants, and covenants that it is authorized
to select the operator services carrier for the Identified Lines. PSP agrees
that if any other party makes any claims against NSC or QWEST for commissions
with respect to such Identified Lines, PSP will be responsible for any such
claim.
A.1.4. NSC and QWEST shall have no responsibility for the
installation, operation, repair, or programming or for any pay phone equipment
owned by a party other than QWEST with respect to the Identified Lines (the
"Third Party Equipment"). PSP is responsible for routing calls to QWEST. QWEST
will not provide or service any equipment for such purposes. In the event QWEST
or NSC incurs costs in connection twith responding to a trouble report where the
cause of the trouble is determined to be related to Third Party Equipment, then
PSP shall promptly reimburse NSC for all of such costs.
COMMISSIONS
A.2.1. Commissions. Unless othernise prohibited by law, NSC shall pay
commissions on Commissionable Revenues (deCzned below) generated by the
Identified Lines as specified in Schedule "1'(degree) to this Attachment
("Commissions") after its receipt of such Commissions. No Commissions shall be
due or payable by NSC to PSP until NSC has received the applicable commission
funds from the QWEST. PSP shall commence earning Commissions with respect to
an Identified Line on the date that PSP has access to QWEST from the
Identified Line, In no event shall NSC's obligation to pay Commissions
commence earlier than the EMctive Date of this Agreement. "Comraissionable
Revenue" shall mean the net billable operator services revenue (exclusive of
taxes, fees, separately itemized Premise Imposed Fees ("PIFs"), and other
assessments) generated by PSP from the Identified Lines billed by QWEST at
QWEST's standard Tariffed rates_ Operator acknowledges and agrees that QWEST,
in its sole discretion, may elect not to collect PIFs on behalf of PSP, in
which case no PIFs shall be deemed due or payable to PSP by QWEST or NSC.
Commissions shall be paid within thirty (30) days after they are received by
NSC.
A.2.2. QWEST Payment. NSC may direct QWEST to pay PSP its
commissions due hereunder directly.
COMPLIANCE WITH LAWS
A.3.1. PSP shall cause all subscribed phones to comply with the
following:
(a) Except where legally permitted, pay phones shall
not block 950-XXXK, lOXXXXXX or 0-000-XXX-XXXX calls.
(b) PSP shall be liable for all charges attributable to the
failure of PSP to secure screening which prevents 1+ 10.YXXXX domestic and
international dialing and which indicates to operators that the telephone is
restricted to prohibit billing to the original ANT,
A.3.2. Pursuant to Section 276 of the Telecommunications Act of 1996,
the FCC has prescribed regulations that establish a compensation plan to ensure
that all pay phone service PSPs are compensated for completed calls from their
pay phones. PSP acknowledges that QWEST reserves the right to adjust its rates
or to impose additional charges or surcharges in order to recover amounts QWEST
is required to pay to payphone service providers and/or NSC pursuant to Section
276 and the regulations implementing Section 276, and any costs incurred by
QWEST in connection with any such compensation requirement.
A3.3. PSP acknowledges that QWEST shall have the right at anytime
and from time to time, with as much notice to PSP as is practicable under
the circumstances, to temporarily suspend or terminate some or all of the
operator services provided at or to any Identified Line because of (i)
defects or malfunctions of or in PSP'S equipment; (ii) an unacceptable level
of fraudulent or uncollectable telephone calls; (iii) violations of local,
state or federal laws and regulations; (iv) violations of published rules,
regulations, and the Tariffs; (v) an unacceptable quality of transmission;
(vi) abuse of the operator services provided hereunder; or (vii) compliance
with my order of a regulatory agency having jurisdiction.
Attachment B
INTERNATIONAL OPERATOR SERVICES
B.1.1. International Operator Services, PSP acknowledges that QWEST
has agreed to provide International Services for certain Identified Lines
elected by PSP but only upon the terms and conditions set forth in this
Attachment B, which shall supersede any provisions to the contrary contained
in the Agreement and the other attachments or exhibits thereto. With NSC's
consent, PSP may, from time to time, in writing or by electronic media in a
format acceptable to NSC, add and delete Identified Lines which are to be
provided with International Services.
B.1.2. Fraudulent International Services Calls. PSP acknowledges
that QWEST has agreed to utilize its existing standard verification
procedures to verify the validity of calling cards (collectively "Cards")
utilized by an International Services user and will otherwise utilize
standard verification procedures for International Services, but PSP
acknowledges and agrees that (i) as to Cards, such verification procedures
are only effective if a Card has been reported lost or stolen or if a Card
has otherwise been revoked or terminated and (ii) a person can utilize
unreported lost or stolen Cards or illicitly obtained data for a Card which
has not been lost or stolen and to otherwise use improper procedures to
fraudulently obtain International Services for which the call charges are
uncollectable, The parties further acknowledge that uncolIectable telephone
charges for fraudulently obtained International Services can be very
substantial and material in both amount and volume.
B.1.3. PSP to Bear Risk of Fraudulent International Services Calls.
PSP will be totally responsible and assumes all economic risks for costs
incurred by NSC or QWEST for fraudulently obtained International Services
placed from PSP's phones, PSP shall reimburse NSC and QWEST for NSC's and
QWEST's costs for such fraudulent International Services calls at the rate
of One Dollar ($1.00) per minute of use for such calls (the minutes of use
for such calls to be determined from QWEST's recorded minutes of use for
such calls). In addition, if PSP has received commissions and additional
surcharges on such fraudulent International Services, PSP shall refund such
commissions and additional surcharges to NSC, it being expressly agreed that
no commission and additional surcharges shall be payable to PSP for or on
such fraudulent International Services. NSC will reduce any commissions on
International Services to PSP by eight percent (8%) of the gross billable
revenue for fraud. The parties agree that this reduction shall not limit
PSP's liability under this Attachment B for fraudulent International
Services calls. NSC may deduct all sums owing by PSP to NSC pursuant to the
foregoing provisions of this International Addendum from commissions payable
by NSC to PSP pursuant to the Agreement.
B.1.4. Commissions. NSC agrees to pay PSP commissions on
Commissionable Revenues at the rate of fifty percent (5O%) plus the PIF, if
any. In no event shall the PIF exceed $6.00.
Attachment C
RATES FOR RESOLUTION SERVICES
PSP shall pap NSC for the following Services at the corresponding rates:
Service Rate
Call Completion/Courtesy Call $0,50 per call attempt
Local Exchange Carrier Credit $0.50 per credit request
(home telephone xxxx) Plus the amount of any credit up to
a maximum of $1.00 per call.
Mailing of a Refund Check $3.85 plus the amount of any refund
211 Access/Repair/Service calls No charge (subject Section 1,3 of
Agreement)
PSP is solely responsible for programming its equipment to make such
Services available.
PSP agrees that it will pay all direct dial l+ and ancillary
charges associated with such Services at the rates charged by QWEST to NSC
for direct dial 1+ services and ancillary charges.
Attachment A-1
CUSTOMER PROFILE FORM
Customer (Check One) [ ]PAYPHONE ( [ ] New/[ ] Renew) [ ] LEC/RBOC
([ ] New/[ ]Renew)
[ ]CHANGE TO EXISTING ACCT (this form can only be used If customer has
current contract)
Date: Term of Contract: Method of Access: 0+1010070 1+1010432
Company Name/Property/Agent: Magic Communications Group, Inc.
Mailing Address; 0 xxxx Xxxx Xx.
Xxxx : Elmsford State: NY
Telephone Number: 000-000-0000 Fax: 000-000-0000
MANDATORY INFORMATION: [x] Corporation [ ] Partnership [ ] Individual
(Check One) [ ] Social Security / [x]Tax ID Number:
ALL OPTIONS MUST BE CHECKED YES OR NO OR CONTRACT WILL BE DELAYED IN PROCESSING
SERVICES: CHECK ONE OPTIONS: Check ONE:
1+ [x]YES [ ] NO Live Operator Only [ ] YES [ ] NO
0+ [x]YES [ ] NO Auto Collect [ ] YES [ ] NO
211/Resolution Service [ ] YES [ ] NO International 0+/0- [x]YES [ ] NO
COCOT Access Service [ ] YES [ ] NO International PIF $
1+ International [x]YES [ ] NO
ATTACHMENTS: CHECK ONE MISC CHECK ONE
Tax Exempt Forms [ ] YES [x] NO Tax Exempt [ ] YES [ ] NO
Int'I O+ Addendum [ ] YES [x] NO Waive Dial
Around/PICC [ ] YES [ ] NO
Customer's Database [ ] YES [x] NO # of Phones :
Copy of Local Phone Xxxx [ ] YES [ ] NO Sub-Agent Code :
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Special Instructlons:
State where ANIs are located : if operating in morethat one state lease out
oneform for each state.
INTERSTATE INTERLATA INTRALATA LOCAL INTERNATIONAL
RATE TABLE:
COMMISSION: 50%
PIF: $1
State where ANIs are located : If o eratin in more that one state lease out
oneform for each state.
INTERSTATE INTERLATA INTRALATA LOCAL INTERNATIONAL
RATE TABLE: 50%
COMMISSION: $1
PIF:
State where ANIs are located ; PA( If operating Inthat one state lease out
oneform for each state.)
INTERSTATE INTERLATA INTRALATA LOCAL INTERNATIONAL
RATE TABLE: 50%
COMMISSION: $1
PIF:
State where ANIs are located : If operating in morethat one state lease out
one form for each state,
INTERSTATE INTERLATA INTRALATA LOCAL INTERNATIONAL
RATE TABLE:
COMMISSION:
PIF:
o Date Received by NSC * Date submitted to Qwest
o Date Accepted by Qwest Date Customer Notified
o Sales Person Contract Admin.
o Director of Sales Activation Spec.
/s/ ineligible
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