EXHIBIT 10.23
[*] Designates material for which confidential treatment has been requested,
which material has been separately filed with the Securities and Exchange
Commission.
TRILOGY TELEMANAGEMENT SERVICE AGREEMENT:
----------------------------------------
WHEREAS: Trilogy Telemanagement, L.L.C. ("Trilogy"), a Delaware limited
liability company, in the business of providing and marketing platform enhanced
telecommunication services, including but not limited to, long distance
telephone services, telephone calling cards, fax services, and debit cards. To
effectuate its services, Trilogy, among other things, designs and develops
computer software, hardware, and services for operation and management of
digital switch services and other products for the deployment of digital switch
application and the management of telecommunications business functions.
WHEREAS: The undersigned "Customer" desires to purchase Trilogy's
services, as specifically defined in Exhibit "1" attached to this Agreement.
WHEREFORE, in consideration for the mutual covenants and promises
contained herein, the parties agree as follows (Trilogy and Customer may also be
referred to as "Party" or "Parties"):
1. SERVICES TO BE PROVIDED TO CUSTOMER: Trilogy agrees to provide the
-----------------------------------
services described in Exhibit "1" attached to this Agreement to the Customer in
consideration for the payment(s) to be provided by the Customer as set forth in
Exhibit "1" to this Agreement.
Trilogy Telemanagement Service Agreement
Page 1
2. PAYMENT TO BE MADE BY CUSTOMER: Customer agrees, in consideration
------------------------------
for the Services to be provided by Trilogy, to pay the consideration upon the
terms and conditions set forth on Exhibit "1" attached to this Agreement.
Nonpayment of Services shall constitute a material breach of this Agreement.
3. PROPRIETARY INFORMATION: The parties stipulate and agree that
-----------------------
Trilogy possesses certain proprietary information, including but not limited to
patent, trademark, copyright, and trade secret information that may be disclosed
to the Customer to effectuate this Agreement. Proprietary and trade secret
information includes but is not limited to any and all technical information,
financial data, customer lists, user lists, business plans, business
relationships, marketing plans, technical specifications, trade secrets,
discoveries, ideas, concepts, and know-how furnished or disclosed by Trilogy to
the Customer. Customer agrees to diligently keep all proprietary information of
Trilogy's as a trade secret, and not to disclose, sell, sublicense, assign, or
in any other way alienate same without the prior written consent of Trilogy.
Customer agrees that all right, title and interest in and to, and ownership of,
all intellectual property rights in and to such software, to the extent that
such intellectual property rights are not in the public domain, including but
not limited to all rights in patents, trademarks, copyrights and trade secrets
relating thereto, any enhancements and modifications thereto and copies thereof,
and any user documentation related thereto (collectively, the "Trilogy
Software"), shall at all times reside exclusively in Trilogy or such third
parties as Trilogy may in its sole
Trilogy Telemanagement Service Agreement
Page 2
discretion determine, notwithstanding the fact that any enhancements or
modifications may have been conceived, developed or made by or on behalf of the
Customer. For purposes of this Agreement, (i) the term "enhancements" shall mean
all updates and improvements to the Software in question which, if such Software
were then being licensed or sold, would be generally offered to a purchaser or
licensee as part of such Software and which would not be separately priced
options, and (ii) the term "modifications" shall mean all changes made to the
Software in question in an attempt to repair or correct any defect therein in
order to cause such Software to conform to the specifications related thereto or
any other warranty related thereto as specified in this Agreement. Customer
shall be entitled only to such licensee rights with respect to the Trilogy
Software as are specifically granted in this Agreement and its Exhibits and to
no other rights; said licensee rights shall only be coextensive with the terms
of this Agreement, and shall terminate with the termination of this Agreement.
Upon termination of this Agreement, Customer shall promptly return all
proprietary information of Trilogy's to Trilogy.
4. RELATIONSHIP OF PARTIES: The parties have entered into an
-----------------------
independent contractor relationship. This Agreement is not a partnership, joint
venture, or other noncontractual arrangement.
5. WARRANTEES AND LIMITATIONS OF LIABILITY: (a) Trilogy warrants that
---------------------------------------
all Software, goods, and services (hereinafter "Services") provided in this
Trilogy Telemanagement Service Agreement
Page 3
Agreement will comply with prevailing telecommunications industry standards
(hereinafter "Technical Standards"). If Trilogy determines that the Services are
not being provided in accordance with the Technical Standards (hereinafter , a
"Defect" or "Defects"), Trilogy shall use reasonable efforts under the
circumstances to conform the Services to the Technical Standards.
(b) THIS EXCLUSIVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, AND
CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
USE FOR A PARTICULAR PURPOSE. TRILOGY HEREBY SPECIFICALLY DISCLAIMS ANY
LIABILITY TO CUSTOMER FOR INTERRUPTIONS AFFECTING THE SERVICES FURNISHED
HEREUNDER WHICH ARE ATTRIBUTABLE TO CUSTOMER'S SERVICE INTERCONNECTIONS OR TO
CUSTOMER'S EQUIPMENT FAILURES, OR TO CUSTOMER'S BREACH OF THIS AGREEMENT.
(c) IN NO EVENT SHALL TRILOGY OR ANY OF ITS AFFILIATES BE LIABLE TO
CUSTOMER OR ANY OF ITS AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR: (i)
ANY LOSS OF PROFIT OR REVENUE, OR FOR ANY INDIRECT CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR
Trilogy Telemanagement Service Agreement
Page 4
SUFFERED AS A RESULT OF UNAVAILABILITY OF SERVICES PERFORMANCE, NON-PERFORMANCE
TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THIS AGREEMENT, OR FOR
ANY OTHER REASON, EVEN IF CUSTOMER ADVISES TRILOGY OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGE; OR (ii) FOR OUTAGE, OR INCORRECT OR DEFECTIVE TRANSMISSIONS, OR
ANY DIRECT OR INDIRECT CONSEQUENCES THEREOF.
(d) NOT WITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL THE CUMULATIVE LIABILITY OF TRILOGY UNDER THIS AGREEMENT EXCEED THE
TOTAL PAYMENTS PAID BY CUSTOMER TO TRILOGY HEREUNDER.
6. TAXES AND REGULATORY MATTERS: The parties shall be responsible for
----------------------------
paying their individual federal, state, local, and franchise taxes, if any. The
parties agree to cooperate to comply with all federal, state, and local laws,
rules and regulations applicable to this Agreement, and maintain in force all
licenses and permits required for their respective activities and obligations
hereunder. Trilogy hereby represents and warrants that it is authorized to
undertake the activities contemplated under this Agreement in each jurisdiction
in which it will provide services hereunder.
7. TERM AND TERMINATION: This Agreement shall commence with the signing
--------------------
of the Agreement, and continue until March 31, 1999. This Agreement shall be
Trilogy Telemanagement Service Agreement
Page 5
immediately terminable by either party upon written notice to the other party of
a material breach of this Agreement. In the event that either party has
reasonable suspicion to believe that the other party cannot or will not comply
with the material terms of this Agreement at any time through the end of the
then current term, the suspecting party shall set forth in writing its
suspicions, the basis thereof, and request reasonable assurances under the
circumstances from the other party that the Agreement will be performed. If such
assurances are not received within thirty (30) days of receipt of the written
request for assurances when the request of said assurances is reasonable under
the circumstances, the Agreement shall be terminated.
8. NOTICES: All notices or demands shall be delivered in person against
-------
a written receipt, sent via telecopier or facsimile transmission to the
telecopier or facsimile transmission number listed above, sent by registered or
certified mail of the United States Postal Service, return receipt requested, or
sent by overnight courier service guaranteeing next business day delivery. Each
such notice, demand or request shall be deemed to have been given upon actual
receipt or refusal by the addressee. All notices, demands or requests provided
for or permitted to be given pursuant to this Agreement must be in writing and
shall be sent to the parties at the following addresses:
To Trilogy: Trilogy Telemanagement LLC
210 S. 16th Street, Suite 116
Omaha, N-E 68102
Fax Number: (402) 346-1500
Trilogy Telemanagement Service Agreement
Page 6
To Customer: Primecall, Inc.
1520 Eastlake Avenue East, Suite 205
Seattle, Washington 98102
9. DISPUTES: Should there exist any error or confusion the Parties
--------
agree to attempt to resolve the matter by bringing it to the attention of the
appropriate party, in writing, within a reasonable time after the dispute arises
and allow a reasonable time from receipt of the notice of dispute to respond to
the matter or otherwise resolve the dispute. The Parties agree to negotiate in
good faith. In the event that a dispute cannot be resolved, the Parties agree
that the dispute will be revolved through arbitration, in the city of Omaha,
Douglas County, Nebraska, in accordance with the Rules of the American
Arbitration Association.
10. AMENDMENTS: All Amendments to this Agreement shall be in writing,
----------
and signed by both parties. Amendments do not need to be supported by additional
consideration outside of this foundational Agreement.
11. SEVERABILITY: If any provision of this Agreement or the application
------------
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permissible by law.
Trilogy Telemanagement Service Agreement
Page 7
12. RESTRICTION ON ASSIGNMENT: Customer may not assign this Agreement
-------------------------
without the consent of Trilogy. Trilogy shall not unreasonably withhold its
consent to any assignment of this Agreement by the Customer.
13. AUTHORITY: The individuals below and their respective parties
---------
represent that they are authorized to enter into this Agreement and that the
undersigned signatories are authorized to bind the parties to this Agreement.
14. LEGAL FEES: If any action is necessary in order to enforce the
----------
terms of this Agreement, the prevailing party shall be entitled to recover its
attorney's fees and costs incurred in addition to any other relief to which it
may be entitled.
15. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement
----------------
between the Parties and supersedes all prior understandings with respect to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
31st day of March, 1997. The parties agree that the signing and exchange of this
document may be performed via telecopier or facsimile transmission.
TRILOGY TELEMANAGEMENT, L.L.C.
By: /s/ Robert G. Barben
--------------------------------
Name: ROBERT G. BARBEN
Title: Vice President Sales and Marketing
Date: March 31, 1997
Trilogy Telemanagement Service Agreement
Page 8
PRIMECALL INCORPORATED
Jurisdiction of Formation: State of Washington
----------------------
Taxpayer ID #: 91-173-8735
----------------------------------
By: /s/ Michael S. Sims
---------------------------------------------
Name: Michael S. Sims
-------------------------------------------
Title: Chief Operating Officer
------------------------------------------
Date: 4/2/97
-------------------------------------------
Trilogy Telemanagement Service Agreement
Page 9
EXHIBIT 1
---------
of
--
TRILOGY TELEMANAGEMENT SERVICE AGREEMENT
----------------------------------------
This Exhibit 1 of Trilogy Telemanagement Service Agreement describes the
Services offered by Trilogy Telemanagement, LLC (hereinafter "Trilogy") and the
responsibilities accepted by both Trilogy and Primecall, Inc. , (hereinafter
"Primecall") to effectuate such services (Trilogy and Primecall may be referred
to as "Party" or "Parties").
A. Whereas, Primecall is involved in the telecommunications
industry and provides long distance telephone services; and
B. Whereas, Trilogy develops software for providers of long
distance telephone services and further provides technical
expertise and support for long distance providers; and
C. Whereas, Primecall wishes to lease with option to buy,
Trilogy's proprietary software, TeleScript, to operate
Primecall's Summa Four SDS 1000 installation and TeleDesq 2.0
Primecall, to manage Primecall's data entry, customer service
and billing requirements through March 31, 1999. Also
Primecall wishes to lease a license to use Trilogy's
proprietary software Web-Call with no option to buy for the
same period of time. Should the license for Web-Call become
available for sale during these twenty four (24) months,
Trilogy will negotiate the sale of this license to Primecall
at that time. Trilogy also gives Primecall the option to
continue to lease Web-Call after the twenty four month period.
Terms of this option will be negotiated and agreed to no later
than sixty days (60) prior to the end of the current lease
agreement. Trilogy and Primecall agrees that lease will remain
at a fair and nominal price for both parties.
1. Description of Services
-----------------------
1.1 TeleScript: TeleScript is a proprietary software of Trilogy.
TeleScript is a fourth generation language designed to command
the Summa Four SDS family of switches to perform complex
callflows and resource management. TeleScript further provides
real time call timing, rating and CDR output. The TeleScript
features and applications contracted for under this service
agreement are listed in Attachment 1 to Exhibit 1.
1.2 TeleDesq 2.0 Primecall: TeleDesq 2.0 Primecall is a
proprietary software of Trilogy. TeleDesq 2.0 Primecall is a
data management software designed specifically for the
telecommunications industry to provide and perform data entry
functionality, customer service support and retail billing
Exhibit 1 of Trilogy Telemanagement Service Agreement
Page 1
functionality. The TeleDesq 2.0 Primecall capabilities
contracted for under this agreement are listed in Attachment 1
to Exhibit 1.
1.3 Web-Call: Web-Call is a proprietary software of Trilogy.
Web-Call is visual automation software for use of
International Call-Back and Domestic Call-Back via use of the
world wide web network.
1.4 Installation: Trilogy shall use its best efforts to activate
and make operational TeleScript and TeleDesq 2.0 Primecall on
or before April 15th, 1997. TeleScript runtime and TeleDesq
2.0 Primecall shall be activated with Primecall's capabilities
for modifications.
1.5 Support: Trilogy offers ten (10) hours per month Technical
Support without additional charge. Trilogy extends Level II
support without additional charge. Level II Support shall be
defined as support of Trilogy Software and is available 24
hours per day, 7 days a week, 365 days a year. Primecall's
customer training, customer support, data entry and data
manipulation is not included in Level II support All
additional support provided by Trilogy shall be prepaid by
Primecall. It shall be understood that support offered
remotely is billed at Trilogy's prevailing commercial rate.
On-site support shall be offered in accordance with section 4
below plus a 15% surcharge to Trilogy's prevailing commercial
rate.
1.6 Training: Trilogy shall provide "hands-on" training of
Trilogy's TeleDesq 2.0 to Primecall Incorporated personnel in
Trilogy's office. Training on Trilogy TeleScript will be
provided for Primecall technicians at Trilogy's offices if
needed and requested by Primecall.
2. Compensation
------------
2.1 Compensation for Services: Primecall shall compensate Trilogy,
per Summa Four switch, for the lease of a non-exclusive,
non-transferable, with option to purchase at end of twenty
four (24) month lease license of Telescript and Teledesq 2.0
to Primecall as described in section 1 above, and for the
lease of a non-exclusive, non-transferable and non-purchasable
license to use Web-Call in the following manner: (A) To
-
effectuate this agreement and receive Service from April 15th,
1997, through April 14th, 1999, Primecall shall remit payment
of US $[*] in certified funds on or before March 31, 1997.
This payment represents $[*] Installation Fee and $[*]
first months lease with option to buy for Trilogy's TeleScript
and TeleDesq 2.0 Primecall. (B) Effective May 01, 1997
-
Primecall shall remit monthly payments of US$[*], ($[*],
monthly lease with option to buy Trilogy's TeleScript and
TeleDesq 2.0 Primecall and $[*] monthly lease for Trilogy's
Web-Call with no option to buy). (C) Final purchase price at
-
end of twenty four
[*] CONFIDENTIAL TREATMENT REQUESTED
Exhibit 1 of Trilogy Telemanagement Service Agreement
Page 2
month lease, effective March 31, 1999 US$[*] for purchase
of license of Trilogy's TeleScript and TeleDesq 2.0 Primecall.
2.2 LICENSE AND ASSIGNMENT: Trilogy hereby grants to Customer a
----------------------
nonexclusive, license to use TeleScript, TeleDesq 2.0
Primecall and Web-Call, as defined in Exhibit 1 of the
Agreement for One (1) Summa Four Switch (collectively, the
"Trilogy Software") in Customers business in any manner in
Customer's sole discretion, for the term of this agreement or
until termination hereof. At the end of the term of this
Agreement, or at termination hereof by Trilogy, Customer shall
have the sole and exclusive option to purchase the Trilogy
Software, TeleScript and TeleDesq 2.0 Primecall, upon the
terms set forth in Exhibit 1. Web-Call may not be purchased at
this time.
2.3 Nonpayment of Services: Nonpayment of Services shall
constitute a material breach of this Agreement. Nonpayment of
Services as contemplated by section 2.1 A. B. and C. of this
----- --
Exhibit shall cause the immediate termination of this
Agreement and simultaneously the immediate termination of all
Services.
3. Responsibilities of the Parties
-------------------------------
3.1 Hardware: Primecall shall ensure that all Hardware is in good
and serviceable condition. Hardware may include, but is not
limited to: host computers, Summa Four switches, modems,
cables and wiring. Trilogy shall assume no responsibility or
liability and shall be held harmless for any and all Hardware
malfunctions regardless of cause.
3.2 Data Integrity: Primecall shall ensure the safety, security
and accuracy of its Data. Data may include but is not limited
to: customer records, billing records, rating records, routing
records, traffic records. Primecall shall establish and
perform adequate backup procedures. Primecall shall establish
and perform adequate error checking. Trilogy shall assume no
responsibility or liability and shall be held harmless for any
and all loss or inaccuracy of Data regardless of cause.
3.3 Environment: Primecall shall provide an appropriate operating
environment, that meets with telecommunications industry
standards, to operate its equipment and Trilogy's proprietary
software. Trilogy shall assume no responsibility or liability
and shall be held harmless for any and all failures of the
Environment regardless of cause.
3.4 Upgrades and Fixes: Trilogy shall provide regular and
necessary bug fixes and technical adjustments to the Trilogy
Software licensed under this agreement. Customer is entitled
to all upgrades and will be supplied integration code, service
and support as necessary for Primecall to use the
[*] CONFIDENTIAL TREATMENT REQUESTED
Exhibit 1 of Trilogy Telemanagement Service Agreement
Page 3
Trilogy Software as contemplated by the Agreement and this
Exhibit 1. Trilogy shall license such fixes, upgrades and
integration code to Primecall with an option to purchase as
set forth in Section 3 of the Agreement.
4. Travel/Per Diem Expenses
------------------------
4.1 Travel and Per Diem Expenses: Any travel necessitated by
Primecall and actual expenses related thereto shall be paid by
Primecall.
TRILOGY TELEMANAGEMENT, L.L.C.
By: /s/ Robert G. Barben
----------------------------------
Name: ROBERT G. BARBEN
Title: Vice President Sales and Marketing
Date: March 31, 1997
PRIMECALL INCORPORATED
Jurisdiction of Formation: State of Washington
---------------------
Taxpayer ID #: 91-173-8735
---------------------------------
By: /s/ Michael S. Sims
--------------------------------------------
Name: Michael S. Sims
------------------------------------------
Title: Chief Operating Officer
-----------------------------------------
Date: 4/2/97
------------------------------------------
Exhibit 1 of Trilogy Telemanagement Service Agreement
Page 4
Attachment 1 to Exhibit 1 of Trilogy Telemanagement Service Agreement
This attachment defines the first set of features and applications contracted
for under Trilogy Telemanagement's Service Agreement and Exhibit 1.
Trilogy Software Features
- -------------------------
Trilogy TeleDesq 2.0 Primecall
-------------------------------
. Account Management
. 800# Management
. Country/Rating Code Management
. Rate Management
. Agent Management
. Customer Management
. Traffic Detail/Export Management
. Payments Module
. Multiple Billing Entity Support Module
. Order Entry Module
. Management Reports
. Account Code Billing Module
. Dynamic Invoicing Module
. Credit Card Payment Module
. Speed Dial Management
Trilogy TeleScript Features
---------------------------
. TeleScript Development Compiler
. On-line Rating Module
. On-line Credit Card Clearing Module
Trilogy TeleScript Applications
-------------------------------
. Call-Back
. Travel Card/Debit Card
All applications may be tailored to specific requirements (Additional charges
may be required).