(9/26/95)
Overlook Communications International
Call Center
Service Agreement
This Agreement is entered into this 1st day of October, 1995 by and between
Overlook Communications International, Corp., a North Carolina Corporation
("OCI") AND 800 Power Phone, Inc. (Customer)
WITNESSETH:
WHEREAS, OCI desires to provide and Customer desires to receive (1) access to a
long distance telephone network necessary to transport telephone calls made to a
telephone number with the prefix 1-800 ("1-800 calls") and (2) OCI's call
termination service which shall respond to 1-800 calls through OCI's "Live
Operator" call center.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
in this Agreement, OCI and Customer agree as follows:
1. SERVICES PROVIDED.
A. Customer shall provide OCI with a telephone number with a prefix of 1-800
"POWER PHONE" (769-3774) that will be used by OCI exclusively for the Customers
services. Upon termination of this agreement the 1-800 Number remains the
property of the Customer. Customer shall be directly responsible for all long
distance transport charges and will be billed directly by the long distance
carrier.
B. Customer shall procure long distance service from Sprint an interexchange
long distance carrier to transport calls to OCI's switching network in Atlanta
Georgia. OCI shall provide Customer with access to such Network for a network
fee in accordance with the attached rate sheet.
C. OCI shall provide Customer with "Live Operator" call service which shall
respond to calls made to Customer's 1-800 Number. OCI shall provide this service
for a fee in accordance with the attached rate sheet.
D. Customer shall provide OCI with the Response/Script which the Service Bureau
shall use to respond to incoming calls to Customer's 1-800 Number. Customer
shall have the sole responsibility for the legality of the content of the
Response/Script. Although OCI will not and has no obligation to screen the
content of the Response, OCI, in its sole discretion, reserves the right, upon
prior notification to customer, to refuse to use any Customer Response if OCI
for whatever reason determines it to be inappropriate.
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E. OCI agrees to use its good faith best efforts to provide the services called
for hereunder on a 24-hour a day, 7-day a week basis. OCI's services shall be of
a quality that is generally acceptable based on industry standards. Customer
understands that the services to be provided by OCI may be interrupted by force
majeure (as defined in Item 13 hereof) and agrees that OCI shall not be liable
therefore. If deficiency may affect Customer's business, customer may seek
alternative services immediately and, if the problem is not remedied within 10
days, Customer may terminate this agreement.
2. FEES.
In consideration for the services to be rendered by OCI under this Agreement,
Customer agrees to pay OCI the following fees all of which are more specifically
identified on the attached rate sheet.
3. PAYMENT TERMS.
A. Customer agrees to pay OCI for transmission capacity and operator services
provided by OCI at the prices specified in this Agreement. If Customer requests
and OCI provides services not delineated herein, Customer agrees to pay OCI
price in effect at the time such service was rendered.
B. Fees do not include taxes. (At the present time, Georgia does not assess a
tax for services. This is only in case such a tax is levied in the future.)
C. Terms are net cash payable within thirty (30) days of invoice date. Charges
for all other services rendered will be invoiced following the month service is
provided.
D. Late payment shall be subject to a monthly late payment charge which will be
included on a subsequent invoice. The late payment charge will be calculated
based on 1.5% per month on the unpaid amount.
4. TERMS OF THE AGREEMENT.
This Agreement becomes effective on October 1, 1995 and shall continue for a
period of Twelve (12) months unless sooner terminated as herein provided. This
agreement applies to the 1-800 numbers "1-800-769-3774" No other 1-800 numbers
are applicable.
5. TERMINATION.
A. Either party may terminate this Agreement by giving to the other party at
least (30) thirty days prior written notice. Such termination shall be effective
on the date specified in the notice, but in no event earlier than the thirtieth
(30th) day following the other party's receipt of such notice. If either party
fails to give thirty (30) days prior written notice of termination, the other
party's obligation hereunder shall continue for a period of thirty (30) days
following receipt by the other party of written notice of termination.
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6. COMPLIANCE WITH LAWS AND INSTRUCTIONS.
Customer and OCI acknowledge and agree that they will comply with and abide by
all federal, state and local laws, rules and regulations (including, but not
limited to, applicable tariffs) governing or otherwise relating to their
respective activities and obligations hereunder.
7. CUSTOMER LIABILITY.
A. Customer shall have sole responsibility for (i) compliance with state,
federal or other laws regarding the content of any Response, use of the Response
in connection with the 1-800 Number and any advertising of the 1-800 Number, and
(ii) satisfaction or payment of any prize, award, contests, lottery or other
scheme advertised in connection with the 1-800 Number. Customer shall have sole
responsibility for awarding any prize, judging any contest or settling any
dispute which arises out of use of Customer's 1-800 Number. Customer shall
indemnify OCI and hold it harmless from and against any liability, loss, cost or
expense attributable to the foregoing.
B. Further, Customer expressly warrants and represents to OCI that the content
of the Response, use of the Response in connection with the 1-800 Number and any
advertising of Customer's 1-800 Number has been determined (by legal counsel or
otherwise) to comply with all applicable laws of the United States, any state or
other jurisdiction. Customer shall inform OCI, in writing, of any state or other
jurisdiction the laws of which would or could be violated by the content or use
of the Response or the advertising of Customer's 1-800 Number. Upon any such
notification from Customer, OCI shall use its good faith best efforts to block
(or not accept) incoming calls to Customer's 1-800 Number from such states or
jurisdictions.
8. ASSIGNMENT.
A. Neither party may assign this Agreement without the prior written consent of
the other party, and consent should not be unreasonably withheld.
Notwithstanding this restriction, either party may assign the Agreement to an
Affiliate without the prior consent of the other party. For purposes of this
section, "Affiliate" shall mean a corporation controlling, controlled by or
under common control with a party to this Agreement.
9. PROPRIETARY OR CONFIDENTIAL INFORMATION.
A. Proprietary or confidential information disclosed by either party to the
other for the purposes hereunder shall mean any document or material clearly
identified in writing as being such. Any such information shall be safeguarded
and protected in the same manner the recipient's procedures require protection
and nondisclosure of recipient's proprietary or confidential information. The
recipient's obligation to safeguard and not disclose such information shall not
apply to information in the public domain, lawfully in its position prior to
receipt hereunder, or lawfully obtained from third parties.
B. This agreement in its entirety or any portion hereof shall not be disclosed
or distributed to any third party with out both party's prior written consent.
C. "Customer Lists" and information about anyone calling Customer's 800 number
is the sole property of Customer and Customer is entitled to receive weekly
lists of such items by paying a transcription fee for the weekly information
generated.
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10. INDEPENDENT CONTRACTOR STATUS.
This Agreement does not create an employer-employee relationship between
Customer and OCI nor an agency, joint venture or partnership relationship. OCI
shall have no authority to act for, represent or bind Customer in any way or to
sign the name of customer.
11. INDEMNITY.
Indemnification. Each party (as "Indemnitor") shall indemnify, defend and hold
harmless the other Party (as Indemnities") from and against any and all
liabilities, costs, damages, fines, assessments, penalties and expenses
(including reasonable attorney's fees) resulting from (a) breach of any
provision in this Agreement by Indemnitor, its employees, or agents, or (b) any
misrepresentation or illegal act of Indemnitor, its employees or agents, arising
out of the Indemnitor's performance hereunder.
Customer shall indemnify, defend and hold OCI harmless from and against any and
all liabilities, costs, and damages including reasonable attorney's fees)
resulting from any claim arising out of: (i) use of Service by Customer to
extend its service to End Users: (ii) use of Service by Customer or End Users:
(iii) libel slander, or patent or trademark infringement arising from the
combination or use of Service with Customer provided service or facilities: or
(iv) Customer's marketing, advertising, sales or promotional activities.
LIMITATION OF LIABILITY. In no event shall either party be liable for special,
direct, incidental, consequential or exemplary damages, including loss of
profits, loss of customers or goodwill arising from the relationship or conduct
of business hereunder.
12. NOTICES.
All notices given under this Agreement shall be in writing and shall be
sufficient if delivered in person to the Director of Sales of either party or
sent via guaranteed next day delivery service (prepaid) or certified mail
(postage prepaid). Notices shall be addressed as follows:
If to OCI: Mr. Thomas E. Garvey If to Customer: Mr. Joseph Salamone
Vice President Sales/ Marketing Secretary/Treasurer
Overlook Communications International Inc. Power Phone, Inc.
2839 Paces Ferry Road/Suite 500 1963 50th St.
Atlanta, Georgia 30339 Brooklyn, NY 11204
or any subsequent address of which such party to be notified may notify the
other party in writing as provided herein.
13. FORCE MAJEURE.
OCI shall be excused from performance hereunder if and to the extent its
performance is prevented by any cause reasonably beyond its control, such as,
and not by way limitation: fire, floods, windstorms, strikes, work stoppages,
failure of equipment belonging to others, riots, acts of God, acts of the public
enemy and acts of governmental authority. OCI shall provide Customer prompt
verbal notification of any "force majeure" event which may affect OCI's capacity
to perform its obligations under this Agreement. Customer shall have the right
to immediately arrange for temporary or permanent alternate services.
14. BINDING EFFECT. This Agreement shall inure to the benefit of, and shall be
binding upon the parties hereto and their respective legal representatives,
successors and assigns.
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15. AMENDMENT.
This Agreement may be amended or modified only by an instrument in writing
signed by all of the parties hereto. No modification of this Agreement or waiver
of any provision hereof or default hereunder shall affect the right of any party
thereafter to enforce any other provision or to exercise any right or remedy in
the event of any other default, whether or not similar.
16. GOVERNING LAW.
This Agreement and the legal relationship among the parties hereto shall be
governed by and construed in accordance with the laws of the State of Georgia.
17. GENERAL.
The headings of the Items and paragraphs contained in this Agreement are for
convenience of reference only and do not form a part hereof and in no way modify
the meaning of such Items and paragraphs. Any number of counterparts of this
Agreement may be signed and delivered and each shall constitute the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives effective as of the date first written
above.
800 Power Phone, Inc. Overlook Communications International Corp.
By /s/ Noah Steinberg By /s/ Patrick Delaney
- ------------------------- -----------------------
Signature Signature
NOAH STEINBERG PATRICK DELANEY
- ------------------------- -----------------------
Please Print Name Please Print Name
President President
- ------------------------- -----------------------
Title Title
12-28-95 1995 12-28-95 1995
- ------------------------- -----------------------
Date Date
Overlook Communications International
Call Center Rates
for
"Powerphone"
(10/1/95)
* Set Up Fees
Administrative $500.00 (Includes 4/Programming Hours)
Programming $50.00 Per Hour
Training $200.00 Minimum
Data Transfer $250.00
Credit Card Authorization $200.000
Standard Reports No Charge
Custom Reports 50.00 Per Hour
* Per Minute Charges for OCI Network Services Only (Long Distance Transport
is not included)
Minutes Per Month
-----------------
0-20,000 $0.90 per minute
20,001 - 40,000 $0.80 per minute
40,001 - 60,000 $0.75 per minute
60,001 - 100,000 $0.70 per minute
100,001 + minutes and dedicated per hour rates available upon request
* IVR Audiotext Rates are Billed Out at $0.20 per minute (Long Distance
Transport is not included)
* Monthly Minimum $500.00
* Training $15.00 per hour
* Database Storage $4.25 per megabyte per month
* Credit Card Authorization $0.50 per order
* Outbound Customer Service Calls $0.70 per minute
* Mall/Fax Order Entry $1.50 per order
* Mailing Labels $0.03/ea.
* Faxing Reports $50.00 per month
* Fulfillment $20.00 per hour
* P.O. Box Rental $45.00 per month
* On-line Data Transfer $50.00 per month
* Security Deposit $1000.00