AGREEMENT
FOR TELEPHONE SERVICE
THROUGH ATC
Dated: September 5, 1990
between
Executive TeleCard S.A. (hereinafter referred to as
"TeleCard"), whose address is Rue de la Morache 14, 1260
Nyon, Switzerland,
and
ATC, a corporation duly organized and existing under the
laws of USA having its principal office at 1515 South
Federal Highway, Boca Raton, Florida, 33432 (hereinafter
referred to as "Company X")
The Service
TeleCard is engaged in the business of providing a service
which enables users of the public telephone systems of a
number of countries to charge their calls to a credit card
while in that country. The calls charged can be domestic or
international. The cards used may be any credit card that
has been activated in TeleCard's dialing system database.
All calls -are redialed through the local country's Postal
Telephone & Telegraph Company (PTT), thereby making
accessible to callers the worldwide network of that
particular country's telephone system.
Terms
The terms of this contract are from September 5, 1990 to
September 5, 1993. Unless terminated in accordance with
clause 9, this agreement will be renewed for periods of 12
months at a time.
3. Operations
3.1 When used in this Agreement, unless the context
otherwise requires, each of the terms set forth herein below
shall have the meaning as indicated below:
a) "Company X Card(s) n shall mean an unexpired credit
card(s) bearing the service marks, trade mark(s) and/or
trade name of Company X and a design or style as may, from
time to time, be determined by Company X.
b) "Cardholder(s)" shall mean the person or entity whose
name appears on the Company X Card as the authorized user
thereof.
c) "Hot Card Notice" shall mean a notification supplied by
Company X to TeleCard containing the number of Company X
cards which are to be blocked from use.
d) "Stop List" ("Black List") shall mean the list to be
supplied regularly by Company X to TeleCard, containing the
card numbers of Company X cards which are being improperly
used and any lost, stolen and/or cancelled Company X cards
which are then to be blocked from use.
3.2 TeleCard will transmit to Company X on a mutually
agreed upon interval, information as to the telephone usage
totals for each cardholder so that Company X may apply its
own standards for "floors", "ceilings" and other credit
limit decisions. Control over which card is not authorized
to charge telephone calls will be via regularly transmitted
"black lists" from Company X to TeleCard. TeleCard will
update all of its worldwide databases with the most current
black list within 24 hours of receipt.
3.3 TeleCard will establish a system that allows Company X
cardholders to use their current Company X number to charge
telephone calls.
3.4 TeleCard will adapt its software to accept the Company
X numbering system and technical specifications.
3.5 TeleCard shall send to Company X every two weeks a
magnetic tape containing the information necessary for
Company X to bill its cardholders for telephone calls made
and charged through TeleCard.
3.6 TeleCard will bill Company X in currency rates of the
country in which the call was made or in U.S. dollars.
3.7 Company X shall pay TeleCard in the currency billed
minus the compensation to Company X (see article 7 of this
agreement), 14 days after receipt of the magnetic tape
containing the billing information.
3.8 Company X will invoice and collect from the cardholder
in accordance with the normal procedures and practices of
Company X.
3.9 Company X shall be entitled to refuse payment to
TeleCard in respect of a call made by a cardholder through
TeleCard, or if payment has been made, to claim an immediate
refund, if:
a) the call was made with an expired Company X Card or a
Company X Card appearing on a Stop List, Hot Notice or Black
List received by TeleCard in time to be posted to the ETI
database;
b) the cardholder refuse" to make payment to Company X in
respect of such call on the grounds of poor transmission
quality or misdialing;
c) The cardholder (past or present) refuses to make
payment to Company X because such cardholder asserts that
the subject call was unauthorized.
TeleCard covenants, warrants and agrees that it shall:
a) not make any extra or special charge in connection with
any call made by a cardholder and will bill according to
published prices.
b) deal with all complaints made by cardholders in
accordance with the procedures in Appendix A attached hereto
and made a part hereof.
4. Marketing
4.1 Company X will distribute to all of its cardholders or
selected cardholders, instructional material as to how the
cardholder will use the "Service" and such other promotional
and user material which Company X deems suitable to promote
the use of the "Service."
4.2 Company X shall advertise, use direct mail, engage in
sales promotions and other related -marketing activities
that Company X deems suitable to promote the use of the
"Service" and at Company X's expense.
4.3 TeleCard will provide free-of-charge technical and
marketing assistance in the production of cardholder
information for use of the service.
5. Trademarks. Service Marks and Logos
5.1 TeleCard hereby authorizes Company X for the term of
this Agreement to publish the name of TeleCard and the
locations of the "Service" in any directory of merchants or
other publication of Company X.
5.2 Company X agrees that the Executive TeleCard
International trademarks, service marks and logos belong to
TeleCard and will devote its best efforts during and after
the Term to protect TeleCard's interests in these
trademarks, service marks and logo.
5.3 TeleCard shall obtain from Company X approval in
writing, prior to publication, of any advertising and/or
promotional materials containing the service marks and/or
trademarks of Company X.
6.0 Power of Attorney/Claims
6.1 Company X is not acting on behalf of TeleCard.
6.2 TeleCard is not acting on behalf of Company X.
6.3 This Agreement does not in any way create the
relationship of joint venture, partnership, or principal and
agent between Company X and TeleCard. TeleCard shall not act
or attempt to act, or represent itself, directly or by
implication, as agent for Company X or in any manner assume
or create or attempt to assume or create any obligation on
behalf or in the name of Company X.
7. Compensation
7.1 For the marketing and administrative services rendered,
including billing to and collection from the cardholders,
TeleCard will grant Company X a "discount fee" of 3% of toll
charges resulting from the use of the "Service" by the
cardholders. Company X will deduct the "discount fee" from
each payment made to TeleCard. Company X may elect to
increase the discount fee for calls originated outside the
United States by instructing TeleCard to increase its
international tariff rate by a percentage not to exceed ten
(10%) per cent. TeleCard will retain twenty-five (25%) per
cent of said increase and the balance will be discounted by
Company X. This election may be made by Company X once each
year on the annual anniversary date of this agreement and
become effective no later than 60 days thereafter.
7.2 An annual service charge of US$ 9.95 will be billed to
Company X cardholders who utilize the service for calls
originated outside of the United States to maintain their
eligibility to access the Executive TeleCard dialing system.
ETI will bill this fee annually in the tapes it prepares and
sends to Company X for billing. This annual service charge
will only be applied to people who actually use the card the
first time in each new calendar year.
7.3 Tariff rates billed by TeleCard will not exceed a 40%
markup from Postal Telephone and Telegraph (PTT) standard
cost.
8. Confidentiality
8.1 As a result of carrying out this Agreement, Company X
will have access to confidential material and information
belonging to TeleCard, and TeleCard will have access to
confidential material and information belonging to Company X
such as client lists, employee lists, procedure manuals and
techniques and programs used by the company or planned to be
used in the future, etc. This confidential information has
been acquired by TeleCard and Company X after considerable
expense, time and energy. TeleCard and Company X agree to
protect the confidentiality of this information and, other
than in the ordinary course of business, TeleCard and
Company X will not disclose any of such confidential
information during or after the Term of this Agreement.
9. Termination
9.1 Company X can terminate this Agreement upon 90 days
written notice to TeleCard prior to the end of the initial
period or any additional annual renewal period. TeleCard can
terminate this Agreement upon 90 days written notice to
Company X prior to the end of the initial period and any
additional annual renewal period.
9.2 Upon termination of this Agreement, discount fees will
continue to be paid as outlined in Article 7, for the
"Service" used by cardholders before termination, as long as
billing and collection are performed by Company X.
9.3 Termination of this Agreement for any reason shall not
release either party hereto from any accrued liability to
the other party. Company X's right to terminate this
Agreement as provided above shall be without prejudice to
any other rights provided to it under law or equity.
10. Assignment
10.1 It is expressly agreed that both parties shall not
assign or transfer all or any part of its rights under this
Agreement. Any such assignment or transfer of this
Agreement, or any assignment or transfer of any interest in
this Agreement, without the prior written approval of both
parties, shall be null and void and of no effect. Company X
may, without prior written approval, assign this agreement
to any affiliate of Company X.
Warranties
11.1 Company X will not make any warranty to its prospects
and clients beyond those made by TeleCard.
12. Hold harmless
12.1 TeleCard shall indemnify and hold Company X harmless in
respect of:
a) any loss, damage or liability suffered or incurred as a
result of TeleCard's failure to perform or observe any of
its obligations under this Agreement;
b) any loss, damage or liability suffered or incurred as a
result of any failure or omission of TeleCard to charge,
report or pay any taxes required by law to be charged,
reported or paid in connection with any Company X Card
transaction contemplated by this Agreement.
12.2 Company X will hold TeleCard harmless and TeleCard will
hold Company' X harmless if in certain countries the local
telephone authorities cannot or will not allow the "Service"
or case of acts of governments or Force Majeure. TeleCard
will use its best efforts to revive the service promptly
should such act of governments or Force Majeure occur.
13. Communications
13.1 Any notice or communication by either party to the
other shall be in writing and shall be deemed to have been
duly given if either delivered personally, by telefax
transmission, or by prepaid registered mail, addressed to
the other party at the appropriate address stated above, or
at such other address as such party hereto may hereafter
specify to the other party.
14. Applicable Law
14.1 This Agreement shall be governed by and construed in
accordance with the laws of the United States and the
parties hereto submit to the nonexclusive jurisdiction of
the United States Courts in the State of New York.
If any provision of this Agreement is held invalid illegal
or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect the validity, legality,
or enforceability of any other provision hereof; provided
that such invalidity does not materially prejudice either
party in their respective rights and obligations contained
in the valid terms, covenants or conditions.
14.3 The failure of either party to require the performance
of any of the terms of this Agreement or the waiver by
either party of any default under this Agreement shall not
prevent a subsequent enforcement of such term, nor be deemed
a waiver of any subsequent breach.
14.4 The use of any gender shall include all genders, and
the use of any number shall be construed as the singular or
the plural, as the context may require.
15. Arbitration
15.1 Any dispute concerning this contract or related
agreement, in particular as to their existence, validity,
interpretation, performance or nonperformance, whether
arising before or after the expiration of the contract, will
be settled by arbitration.
15.2 The seat of the arbitration will be in Miami,
Florida.
15.3 The arbitration shall take place in accordance with the
rules of arbitration of the American Arbitration
Association, applicable at the seat of the arbitration.
15.4 Judgement upon the award rendered may be entered in any
court having jurisdiction or application and may be made to
such court for a judicial acceptance of the award and an
order of enforcement, as the case may be.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized
representatives as of the day and year first set forth
above.
ATC
BY:
TITLE: EVP and Chief Operating Officer
EXECUTIVE TELECARD S.A.
BY:
TITLE: Secretary