EXHIBIT 2.33
SERVICE AND RESELLER AGREEMENT
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THIS AGREEMENT is made and entered into as the 28th day of September, 1990
by and between AMWAY CORPORATION, a Michigan corporation ("Amway"), having its
principal place of business at 7575 East Fulton Road, Ada, Michigan, 49365, and
Voice-Tel ENTERPRISES, INC., a Delaware corporation ("Voice-Tel"), having its
principal place of business at 77 Milford Drive, Hudson, Ohio, 44236.
RECITALS:
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A. Voice-Tel has developed expertise in the provision of certain telephone
services such as a voice messaging services and digital network services.
Voice-Tel provides these services both directly and through its system of
independent franchisees (the "Franchisees").
B. Amway is a world wide network sales organization that distributes
products and services through its independent distributors (the "Distributors").
C. The parties desire to enter into a relationship under which (i) Voice-
Tel and/or its Franchisees will provide certain products and services to Amway
and its Distributors for ultimate use by them and/or for resale to their
customers under Amway owned tradenames and trademarks, and (ii) Amway through
certain of its Distributors will act as the representatives of Voice-Tel and its
Franchisees for the sale of certain other telephone products and services under
Voice-Tel owned tradenames and trademarks.
AGREEMENTS
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NOW, THEREFORE, the parties agree as follows:
ARTICLE I
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AMWAY PRODUCTS AND SERVICES
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1.1 Sales to Amway and Distributors. Voice-Tel and its Franchisees will
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sell to Amway for ultimate use by it, and/or for resale by Amway to its
Distributors services described on Schedule 1.1(a) (the "Amway Products and
Services"). Such products and services, when used or sold by Amway and/or its
Distributors, will be identified to the public under Amway owned tradenames and
trademarks. Amway will pay for such services pursuant to the price schedule set
forth on Schedule 1.1(b). The parties agree that the terms and conditions of
Schedule 1.1(b) shall be reviewed and re-evaluated at least annually. Failure
of the parties to reach an agreement during such annual review and re-evaluation
shall give Amway certain rights as specified in Article VIII.
ARTICLE 11
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Voice-Tel PRODUCTS AND SERVICES
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2.1 Representation. Amway through certain of its Distributors will act as
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representatives of Voice-Tel and its Franchisees for the sale of the telephone
products and services described on Schedule 2.1 (Voice-Tel/Amway Leads Program).
Such services will be sold under Voice-Tel owned trademarks. The commissions to
be paid by Voice-Tel to Amway for such services we set forth on Schedule 2.1.
The Amway Products and Services and the Voice-Tel/Amway Leads Program are
collectively referred to as "this program". The services referred to in
Schedule 1.1(a) and Schedule 2.1 are collectively referred to as "Services".
ARTICLE III
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ADMINISTRATIVE RELATIONSHIP
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Amway and Voice-Tel shall jointly administer this program under the terms
and conditions set forth and mutually agreed upon in the following schedules:
Schedule 3.1 Order Processing Procedures
Schedule 3.2 Billing Procedures
Schedule 3.3 Collection Procedures
Schedule 3.4 Payment Procedures
Schedule 3.6 Credit/Refund Procedures
Schedule 3.6 Price Change Procedures
Schedule 3.7 Product/Services Change procedures
Schedule 3.8 Distributor/Franchisee Relationship
No changes shall be made in the above schedules without written mutual
consent of both Amway and Voice-Tel.
ARTICLE IV
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MARKETING RELATIONSHIP
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Amway and Voice-Tel shall jointly provide marketing and sales support of
this program under the terms and conditions set forth and mutually agreed upon
in the following schedules:
Schedule 4.1 Selling Channels
Schedule 4.2 Training Seminars
Schedule 4.3 Marketing Seminars
Schedule 4.4 Customer Service
Schedule 4.5 Literature and Marketing Materials
Schedule 4.6 Press Releases
No changes shall be made in the above schedules without written mutual
consent of both Amway and Voice-Tel.
ARTICLE V
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COVENANTS OF Voice-Tel
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5.1 Provision of Services. Voice-Tel will use its reasonable best efforts
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to provide Services of high quality on a consistent basis in accordance with the
following schedules:
Schedule 5.1(a) Equipment Standards
Schedule 5.1(b) Equipment Service Level Standards
Schedule 5.1(c) Customer Service Standards
Voice-Tel will use its reasonable best efforts to obtain and secure the
participation and cooperation of all present and future Franchisees in the
provision of Amway Products and Services. The parties agree that the geographic
scope and time table for availability of Amway Products and Services shall be as
set forth in Schedule 5.1(d) Geographic Scope; Time Table. Further, Voice-Tel
represents and warrants that execution of this Agreement and performance by
Voice-Tel of its obligations under this Agreement does not and will not breach
any other agreement to which Voice-Tel is or will be a party, including but not
limited to, any agreements with its Franchisees.
5.2 Compliance. Voice-Tel will comply with all federal, state and local
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statutes and regulations ("Laws") relating to the performance of this Agreement
by Voice-Tel.
5.3 Information as to Regulations. Voice-Tel will inform Amway of any
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known federal, state and local communications statutes and regulations
("Communications Laws") applicable to the marketing of the Services, including
all known licenses and/or permits needed for performance of this Agreement by
Amway.
5.4 Trademarks and Tradenames. Amway will not sell the Services under any
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trademark or tradename other than those owned by Amway or Voice-Tel. Amway will
take all reasonable steps to investigate any complaints by Voice-Tel relating to
practices or activities of Distributors and Amway will advise Voice-Tel of the
results of any such investigation including any actions being taken by Amway
based upon the results of such investigation.
Each party grants to the other a non-exclusive license to use the
trademarks and tradenames owned or licensed by such party, the term of such
license to run as long as this Agreement remains in effect. Any proposed use by
a party of the trademarks or tradenames owned or licensed by the other party
shall be subject to the terms and provisions of Schedule 4.5. Neither party
will contest the validity of or otherwise challenge the trademarks or tradenames
owned or licensed by the other party. Any use by a party of the trademarks or
tradenames owned or licensed by the other party shall inure solely and
exclusively to the benefit of the owner or licensor, as the case may be. The
parties agree that upon termination of this Agreement, neither party will use
any trademarks or tradenames owned or licensed by the other party and neither
party shall be indebted or be required to pay any sums to the other party based
upon use of trademarks or tradenames prior to termination of this Agreement.
ARTICLE VI
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COVENANTS OF AMWAY
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6.1 Sale of Services. Amway will make reasonable best efforts to (i)
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promote the sale and distribution of the Services and (ii) encourage and give
assistance to its Distributors to sell the Services to their existing and new
customers.
6.2 Compliance. Amway will comply with all Laws relating to the
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performance of this Agreement by Amway. Further, Amway represents and warrants
that execution of this Agreement and performance by Amway of its obligations
under this Agreement does not and will not breach any other agreement to which
Amway is or will be a party, including but not limited to any agreements with
its Distributors.
ARTICLE VII
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TRADE SECRETS
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7.1 Trade Secrets of Amway. Voice-Tel acknowledges that the names, ADA
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numbers and addresses of Distributors, any information about Amway customers and
any information either relating to the internal management/operations of Amway
or designated by Amway as confidential and/or proprietary ("Amway information")
is the sole property and trade secret of Amway. Amway Information shall not be
used, sold, disclosed or assigned by Voice-Tel for any purpose, except to the
extent necessary to the performance of this Agreement. Upon termination of the
Agreement, Voice-Tel shall return all Amway information to Amway. The
prohibitions contained in this paragraph shall survive such termination, except
that Voice-Tel may contact customers and Distributors who are existing customers
of the Services in order to continue to provide the Services to such customers
or Distributors.
7.2 Trade Secrets of Voice-Tel. Amway acknowledges that all information
--------------------------
relating to the development, design and operation of the Services and any
information either relating to the internal management/operations of Voice-Tel
or designated by Voice-Tel as confidential and/or proprietary ("Voice-Tel
Information") is the sole property and trade secret of Voice-Tel. Voice-Tel
Information will not be used, sold, disclosed or assigned by Amway for any
purpose, except to the extent necessary to the performance of this Agreement.
Upon termination of this Agreement, Amway will return all Voice-Tel Information
to Voice-Tel. The prohibitions contained in this paragraph shall survive such
termination.
7.3 Confidentiality. The parties agree that the terms and conditions of
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this Agreement, including all current and formerly effective Schedules, are
strictly confidential and will not be disclosed by either party to any third
party except that Voice-Tel may disclose all or any portion of this Agreement to
any existing or prospective Franchisee provided that such existing or potential
Franchisee agrees to and is bound to maintain such disclosures in strict
confidence.
The parties agree that any information which is either in the public domain
or obtained from a third party without breach by such third party of any
confidentiality or secrecy obligations of such third party shall not be subject
to the provisions of Sections 7.1 or 7.2 regardless of whether such information
is designated confidential and/or proprietary by either party.
ARTICLE VIII
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EXCLUSIVITY
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During the term of this Agreement and any renewals, Amway will not directly
or indirectly represent any party in respect of the sale or distribution of any
voice managing services competitive with the Services, except that Amway and any
Distributor currently acting as distributor for Amvox, Inc., a California
corporation ("Amvox"), may continue to so act in any
area where Voice-Tel is not operating until such time as Voice-Tel begins
franchise operations and assumes responsibilities for operations of Amvox sites
in such area. The parties agree that Amway may terminate exclusivity under this
Agreement by written notice to Voice-Tel if i) Voice-Tel commits any material
breach of any provision of this Agreement, including failure to meet any of the
terms and conditions contained in any of the Schedules, and such material breach
is not cured in accordance with Section 9.2(a) or ii) Amway and Voice-Tel are
unable to reach agreement during the annual review of the terms and Conditions
of Schedule 1.1(b)
ARTICLE IX
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TERM AND TERMINATION
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9.1 Term. The initial term of this Agreement shall be a period of five
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years beginning on the date of execution of this Agreement. The Agreement shall
be automatically renewable for an indefinite number of one year renewal periods
if neither party gives written notice of termination at least 180 days prior to
the end of the initial term of this Agreement or any renewal period.
9.2 Termination. Either party may terminate this Agreement at any time in
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the event that:
(a) the other party breaches any provision of this Agreement in any
material respect and falls to take curative steps or actions within 30
days of receipt of written notice of such breach, such curative steps
or actions to be effective in remedying such breach no later than 60
days after receipt of written notice of such breach except in the case
where the breach relates to equipment failures and/or malfunctions in
the provision of the Services where the curative steps or actions
shall be effective in remedying such breach no later than 120 days
after receipt of written notice of such breach.
(b) the other party shall make a general assignment for the benefit
of creditors, shall admit in writing its inability to pay its debts as
they become due, shall file a petition in bankruptcy, be adjudicated a
bankrupt or insolvent, shall file a petition seeking any arrangement,
composition, readjustment or similar relief under any present or
future federal or state statute, law or regulation, shall file an
answer admitting or not contesting the material allegations of a
petition against such other party in any such proceeding, or shall
seek consent to or acquiesce in the appointment of any trustee or
receiver of such other party or any material part of its assets; or
(c) any proceeding against the other party seeking an arrangement,
composition, readjustment or similar relief under any present or
future federal or state statute, law or regulation shall not have been
dismissed within 60 days after the commencement thereof, or the
appointment of any trustee or receiver of such other party or of any
material part of its assets without the consent of acquiescence of
such other party shall not have been vacated within 60 days after such
appointment.
ARTICLE X
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INDEMNIFICATION
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10.1 Amway's Indemnification. Amway will indemnify and hold harmless
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Voice-Tel and its Franchisees, shareholders, directors, officers, employees and
agents from any and all costs, expenses, losses, damages and liabilities
incurred or suffered, directly or indirectly, by any of them (including, without
limitation, reasonable legal fees and expenses) resulting from or attributable
to (a) the breach of, or misstatement in, any one or more of the
representations, warranties, covenants or agreements of Amway contained in this
Agreement, (b) the breach by Amway of any Laws, (c) any claims by Distributors
due to the alleged failure of Amway to pay commissions or bonuses allegedly
payable to such Distributors, (d) any tax liability resulting from the failure
of Amway or its Distributors to report, collect or pay applicable withholding,
payroll or similar taxes arising out of the payment of such commissions and
bonuses, (e) any tortious or unlawful conduct of Amway, (f) any claims by any
Distributors based upon any agreement or contract between Amway and the
Distributor, or (g) any claims based upon use by VoiceTel or Amway of Amway-
owned or licensed trademarks or tradenames.
10.2 Voice-Tel's Indemnification. Voice-Tel will indemnify and hold
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harmless Amway and its Distributors, shareholders, directors, officers,
employees and agents from any and all costs, expenses, losses, damages and
liabilities incurred or suffered, directly or indirectly by any of them
(including, without limitation, reasonable legal fees and expenses) resulting
from or attributable to (a) the breach of, or misstatement in, any one or more
of the representations, warranties, covenants or agreements of Voice-Tel
contained in this Agreement, (b) the breach by Voice-Tel of any Laws, (c) any
tortious or unlawful conduct of Voice-Tel, (d) any claims by any Franchisees
based upon any agreement or contract between Voice-Tel and the Franchisee, (e)
any tax liability resulting from the failure of Voice-Tel or its Franchisees to
report, collect or pay applicable withholding, payroll or similar taxes arising
out of any agreements or contracts between Voice-Tel and its Franchisees, or (f)
any claims based upon use by Amway or VoiceTel of Voice-Tel owned or licensed
trademarks or tradenames.
10.3 Defense Against Asserted Claims. If any claim or assertion of
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liability is made or asserted by a third party against a party indemnified
pursuant to this Article ("Indemnified Party") based on any liability or
obligation which, if established, would entitle the indemnified Party to
indemnification by an indemnifying Party pursuant to this Article ("Indemnifying
Party"), the Indemnified Party shall with reasonable promptness give to the
Indemnifying Party written notice of the claim or assertion of liability and
request the Indemnifying Party to defend the same. Failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that the Indemnifying Party might have to the Indemnified Party unless such
failure materially prejudices the Indemnifying Party's position. The
Indemnifying Party shall have the right to defend against such liability or
assertion, in which event the Indemnifying Party, shall give written notice to
the Indemnified Party of acceptance of the defense of such claim and the
identity of counsel selected by the Indemnifying Party with respect to such
matters. The Indemnified Party shall be entitled to participate with the
Indemnifying Party in such defense and also shall be entitled at its option to
employ separate counsel for such defense at the expense of Indemnified Party.
In the event the Indemnifying Party does not accept the defense of the matter a
provided above or in the event the Indemnifying Party or its counsel fails to
use reasonable care in maintaining such defense, the Indemnified Party shall
have the full right to employ counsel for such defense at the expense of the
Indemnifying Party. Amway and Voice-Tel will cooperate with each other in the
investigation and in the defense of any such action, and the relevant records of
each shall be available to the other with respect to such defense.
ARTICLE XI
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NOTICES
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All notices, requests, demands and other communications under this
Agreement shall be in writing and signed an behalf of the party giving the same
and shall be deemed duly given (i) when personally delivered, (ii) upon receipt
of a telephonic facsimile transmission with a confirmed telephonic transmission
answer back, (iii) three days after having been deposited in first class United
States mail, certified or registered, return receipt requested and postage
prepaid, or (iv) one business day after having been dispatched by a nationally
recognized overnight courier service providing guaranteed delivery on the next
business day to the parties at the following respective addresses (or such other
address as any party may subsequently provide to the other parties by notice
given in accordance with this Article):
If to Amway: Amway Corporation
7575 East Fulton Road
Ada, Michigan 49355
Attention: Mr. James Harper
With a copy to: Amway Corporation
7676 East Fulton Road
Ada, Michigan 49355
Attention: Mr. Michael S. Callahan, Esq.
If to Voice-Tel: Voice-Tel Enterprises, Inc.
77 Milford Drive
Hudson, Ohio 44236
Attention: Alan J. Carter
With a copy to: Deanna C. Kursh, Esq.
Benesch, Friedlander, Coplan & Aronoff
1100 Citizens Building
850 Euclid Avenue
Cleveland, Ohio 44114
provided that insofar as any provision of the Agreement requires that any notice
or other communication be given by a specified date or time, such notice shall
be effective and timely only if actually received by the date and time
specified.
ARTICLE XII
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ASSIGNMENT, THIRD PARTIES, BINDING EFFECT
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The rights under this Agreement are not assignable nor are the duties
delegable by a party without the written consent of the other party first having
been obtained, and any attempted assignment or delegation without such consent
will be null and void; provided, however, that Voice-Tel may assign its rights
and delegate its duties under this Agreement to its Franchisees. Voice-Tel
acknowledges that any assignment or delegation of its rights and/or duties under
this Agreement to its Franchisees does not relieve or otherwise release Voice-
Tel from any of its obligations under this Agreement. Nothing contained in this
Agreement is intended to convey upon any person or entity, other than the
parties and their successors in interest and permitted assigns, any rights or
remedies under or by reason of this Agreement unless expressly stated. All
covenants, agreements, representations and warranties of the parties contained
in this Agreement are binding on and will inure to the benefit of Amway and
Voice-Tel, respectively, and their respective successors and permitted assigns.
ARTICLE XIII
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MISCELLANEOUS
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13.1 Completion of Schedules; Amendments to Schedules. The parties
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acknowledge that, as of the date of execution of this Agreement, none of the
Schedules referred to in this Agreement have been reduced to writing but that
substantial negotiations and discussions have taken place and that certain
activities have in fact been implemented The parties agree that all initial
Schedules to this Agreement shall be completed and approved by the parties
within sixty (60) days of the date of execution of this Agreement. The parties
agree that all completed and approved Schedules including any subsequently
approved amendments, are incorporated into this Agreement by reference as if
fully set forth in this Agreement. Failure to complete and approve all initial
Schedules within the sixty (60) day time limit shall entitle either party, upon
written notice to the other, to render this Agreement null and void. The sixty
(60) day time limit may be extended upon the mutual written consent of the
parties. The parties contemplate that from time to time, Schedules will be
amended by written agreement of the parties or pursuant to the amendment
procedure described in those Schedules. Upon amendment of any such Schedule,
such amended Schedule shall be substituted for the prior Schedule for all
purposes of this Agreement.
13.2 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same document.
13.3 Captions and Section Headings. Captions and section headings are for
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convenience only, are not a part of this Agreement and may not be used on
construing it.
13.4 Waivers. Any failure by any of the parties to comply with any of the
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obligations, agreements or conditions set forth in this Agreement may be waived
by the other party or parties, but any such waiver will not be deemed a waiver
of any other obligation, agreement or condition contained herein.
13.5 No Agency, etc. Neither party shall or shall be deemed to be an
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agent, employee or partner of, or joint venturer with, the other party.
13.6 Governing Law. This Agreement shall be governed by, and construed
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and enforced in accordance with the laws of the State of Michigan applicable to
agreements made and to be performed therein, without regard to any conflicts or
choice of law rules.
13.7 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties relative to the use and/or resale of the products and
services provided. There are no verbal agreements, representations, warranties,
undertakings or agreements between the parties, and this Agreement may not be
amended or modified in any respect, except by a written instrument signed by the
parties to this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date first above written.
AMWAY CORPORATION
By: /s/ James J. Rosloniec
-------------------------------------------
James J. Rosloniec
Its: Vice President-Finance, Treasurer
VOICE-TEL ENTERPRISES, INC.
By: /s/ Alan J. Carter
-------------------------------------------
Alan J. Carter
Its: Chairman
SCHEDULE 1.1(a)
AMWAY PRODUCTS AND SERVICES DESCRIPTION
(In these schedules referred to as "AMVOX by Voice-Tel.")
The following service levels will be offered with AMVOX by Voice-Tel.
AMVOX AMVOX AMVOX
STANDARD ENHANCED PREMIER
-------------------------------------- ---------------------------- ---------------------------
Greeting Length 30 seconds 60 seconds 90 seconds
Message Length 30 seconds 2 minutes 2 minutes
Retention 5 days 5 days 7 days
Number of Messages 10 20 30
Other Features: - Answer Only - Distribution List - All enhanced features
- No group communication features - Networking - Pause Activation
- Make and give private - Multiple Make & Give
- Pager enable/disable - Urgent Message
- Activate receipt time
- New message notification
Maximum Limits 1000 messages 1000 messages 1500 messages
1500 greetings 1500 greetings 2000 greetings
ResponsePlus
- - ------------
- - - 2-minute greeting
- - - 20 messages
- - - No group communication features
- - - Basic monthly charge allows up to 1000 calls per month. Calls in excess of
1000 are subject to surcharge.
- - - Maximum of 5000 calls per month. Box is subject to cancellation if calls
exceed 5000.
VoiceCast
- - ---------
- - - 3-minute greeting only
- - - Basic monthly charge allows up to 1000 calls per month. Calls in excess of
1000 are subject to surcharge.
- - - Maximum of 5000 calls per month. Box is subject to cancellation if calls
exceed 5000.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
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SCHEDULE 1.1(a)
AMWAY PRODUCTS AND SERVICES DESCRIPTION (Cont.)
MenuBox
- - -------
- - - 1-minute greeting only
- - - Can branch to any number of regular service boxes.
- - - Must have a minimum of one other regular box in addition to menubox.
- - - Basic monthly charge allows up to 2000 calls per month. Calls in excess of
2000 are subject to surcharge.
- - - Maximum of 5000 calls per month. Box is subject to cancellation if calls
exceed 5000.
MenuMax
- - -------
- - - 3-minute greeting only.
- - - Can branch to any number of regular service boxes.
- - - Must have a minimum of one other regular box in addition to menubox.
- - - Basic monthly charge allows up to 1000 calls per month. Calls in excess of
1000 are subject to surcharge.
- - - Maximum of 5000 calls per month. Box is subject to cancellation if calls
exceed 5000.
Service Initiation Fee
- - ----------------------
A one-time, non-refundable, service initiation fee will be charged for each
mailbox utilizing any of the basic AMVOX Service Levels.
Pager Outdial
- - -------------
- - - Equipment will outdial from a voice mailbox to activate a customer-owned
pager.
- - - One (1) pager outdial per message received.
- - - Basic monthly charge allows up to 100 pager outdials per month. Pages in
excess of 100 are subject to surcharge.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
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SCHEDULE 1.1(B)
[REVISED EFFECTIVE AUGUST 1, 1997]
AMWAY PRODUCTS AND SERVICES PRICING
MAILBOX PRODUCTS AND SPECIALTY MAILBOX PRODUCTS PRICING STRUCTURE
MONTHLY SUBSCRIPTION SERVICE
- - -----------------------------------------------------------------------------------------------------------------------------------
ONE TIME CALL
AMVOX AMVOX RESPONSE PAGER SCV INIT MINI CAST ANSWERING
ENHANCED PREMIER MENUBOX PLUS VOICECAST MENUMAX OUTDIAL FEE BOX TEST BOX
- - ---------------------------------------------------------------------------------------------------------------------------------
SKU# E-1012 E-1013 E-1016 E-1014 E-1015 E-1017 E-1129 E-1130 E-1699 E-2726
- - ---------------------------------------------------------------------------------------------------------------------------------
Voice-Tel Monthly Fees [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
Maximum number of Messages 1,000 1,500 N/A 1,000 N/A N/A 100 N/A 1,500
per month
Calls allowed Per month -
Greeting 1,500 2,000 2,000 1,500 1,000 1,000 N/A N/A 2,000 2,000
Calls in excess of the
limitation are subject
to charges
Excess of Limitation Charge [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
up to 5,000 calls
Excess of Limitation Charge [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
5,001 calls and above
Aggregate number of calls or 5,000 5,000 5,000 5,000 5,000 5,000 N/A N/A 5,000 10,000
messages at which service is
subject to cancellation
- - ---------------------------------------------------------------------------------------------------------------------------------
***Confidential information omitted and filed separately with the Securities
Exchange Commission.
BASIC DIRECTOR PREMIER
ANSWER DIALOGUE MENU PLUS BROADCAST
SKU# E-2211 E-2212 E-2213 E-2214 E-2215
- - ----------------------------------------------------------------------------------------------
Voice-Tel Monthly Fees [***] [***] [***] [***] [***]
Maximum number of Messages 500 500 N/A 1,500 N/A
Calls Allowed Per Month - Greeting 750 750 750 2,000 N/A
Calls in excess of the limitation are
subject to charges
Excess of Limitation Charge [***] [***] [***] [***] [***]
Aggregate number of calls or
messages at which service is subject
to cancellation 5,000 5,000 5,000 5,000 N/A
- - ----------------------------------------------------------------------------------------------
MONTHLY NETWORK MESSAGING SERVICE
- - -----------------------------------------------------------------------------------------------------------------------------------
NETWORKING NETWORKING NETWORKING NETWORKING NETWORKING NETWORKING
REGULAR URGENT REGULAR URGENT URGENT REGULAR REGULAR URGENT REGULAR URGENT REGULAR URGENT
- - -----------------------------------------------------------------------------------------------------------------------------------
PER BOX PER MONTH 0-100 Messages 101-400 Messages 401-800 Messages 801-1,250 Messages 1,251-2,500 Messages 2,501+ Messages
- - -----------------------------------------------------------------------------------------------------------------------------------
Per Message Charge Per Message Charge Per Message Charge Per Message Charge Per Message Charge Per Message Charge
Voice-Tel Fees [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
"Network Messaging" means any messages sent across the telecommunications network owned and operated by Voice-Tel Network
Limited Partnership between mailboxes that are not on the same local system.
***Confidential information omitted and filed separately with the Securities Exchange Commission.
SCHEDULE 2.1
LEADS PROGRAMS
(including Account Executive Program)
It is felt that Amway distributors can be competitive in marketing AMVOX to
accounts requiring less than 50 mailboxes that do not require custom
applications.
In order to give distributors appropriate alternatives when confronted with
custom applications, and/or accounts exceeding 50 boxes, the following
alternatives are proposed.
LEADS PROGRAM - Distributor has large customer contact, but not an
- - -------------
interest/expertise/"certification" to sell personally. Distributor interests;
customer in voicemail and completes an AMVOX Lead form (customer information;
address, key contact, number of employees, communication needs, etc.), and an
"invitation" (on company letterhead) for a Voice-Tel representative to do a
presentation. The form and invitation should be mailed to the AMVOX department
at Amway. Copies would be retained and originals forwarded to the National
Operations Center, then on to the franchises. Immediate turnaround is essential
in each case. This would be treated entirely as a Voice-Tel sale, with the
following compensation to Amway for generating this "hot lead":
10% of all account revenues generated and collected for service provided
during the first 12 months.
ACCOUNT EXECUTIVE PROGRAM - Distributor wants to present, sell and service large
- - -------------------------
account with custom applications, and have competitive pricing to do so.
Distributors interested in this program must undergo "certification training."
Training and acceptance standards will be mutually agreed upon by Voice-Tel and
Amway. Once approved, the distributor is an account executive capable of the
most complex presentations and application of voicemail services. The
distributor would work with the franchisee to determine appropriate product
offerings and pricing to be offered to each prospective customer. The
distributor would then be responsible for the presentation, sale, customer
training and support. Voice-Tel will handle the billing and collection. Amway
will be compensated under the following criteria:
- 20% of all account revenues generated and collected for service provided
during the first 12 months on all new boxes.
---
- 4% of all account revenues generated and collected for service provided
an all boxes on a monthly basis beginning with the thirteenth month and
continuing for as long as the Agreement or successor agreement regarding
AMVOX Service is in place between Amway and Voice-Tel, and the selling
distributor passes annual recertification as judged by Amway and
Voice-Tel.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 2.1
LEADS PROGRAM (Cont.)
COMPENSATION - Voice-Tel will monitor Leads and Account Executive Program
- - ------------
accounts for compensation by identifying them as "Amway," and identifying also
via ADA number. A monthly report with detail broken down by franchise location
will be generated to Amway giving account status (presented, pending disposition
or sold with monies due to Amway). Payment will be "netted out" of Amway's
monthly check to Voice-Tel.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.1
ORDER PROCESSING PROCEDURES
Amway will be responsible for receiving all orders for Amway Products and
Services. Orders will be received and processed as follows.
1. Orders will be accepted via the Amway Personal Shoppers Catalog Telephone
Ordering number, 1-800-253-6500, 7 a.m. to 12:00 midnight Eastern time
Monday through Friday, Saturday 8:30 a.m. to 5 p.m. Eastern Time. Mailers
will be accepted on form SA-285, sent to 7575 Fulton Street East, Ada, MI
49355-0001. Orders will be accepted with bankdraft, VISA or MasterCard or
consolidated billing as forms of payment.
2. Orders accepted will be transmitted to the Voice-Tel National Operations
Center four times daily for initialization. The information to be
transmitted will be sufficient to properly activate the class of service
desired and support necessary subsequent billing and reconciliation.
3. Amway will send a fulfillment letter to the ordering distributor/customer
for each box ordered. The fulfillment letters will contain all information
necessary to allow the customer to begin using the service, as well as
other fulfillment literature describing the terms and conditions under
which the service is provided.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.2
BILLING PROCEDURES
Amway will be responsible for billing for all services offered as part of the
Amway Products and Services. Billings will include all basic monthly charges as
well as any peripheral services available to box holders. There will be three
types of payment mechanisms available for Amway Products and Services as
outlined below.
1. Credit Cards
------------
A. Credit cards will be authorized and billed on the billing date for the
AMVOX box.
B. Refused authorizations:
-- A letter will go out immediately from Amway to the party
responsible for payment on the box saying the authorization on the
credit card was not accepted by the bank and requesting an
alternate form of payment be supplied immediately.
-- A service interrupt will be set to occur on the box in question 15
days from the billing date. This will stop the owner from entering
the box for messages which will prompt them to call for help.
-- The box will be cancelled automatically 30 days from the billing
date if no alternate payment is received.
C. Amway will institute collection procedures for appropriate amounts
(see Schedule 3.3).
D. Voice-Tel will be paid only for boxes on which Amway collects payment
provided Amway follows collection procedures as outlined in Schedule
3.3. Parties acknowledge that Amway will also be making periodical
payments to AMVOX for service provided on non-transferred sites.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.2
BILLING PROCEDURES (Cont.)
2. Bank Drafts
-----------
A. Boxes set up for bank draft billing must be set up as follows:
1. The customer/distributor must send in a Bank Draft Order Form
(SA-5596) along with a sample check and payment for the first
month's service.
2. Payment via bank draft will begin on the box for the second 30
days of service. Bank Drafts will be submitted to the specified
banks on the billing date.
B. Returned Bank Drafts will be handled as follows;
1. The box owner will be immediately contacted in writing by Amway's
Accounts Receivable department and asked for payment via credit
card or check.
2. Boxes for which payment is not received within 14 days will be
cancelled by Accounts Receivable.
3. Depending an the amount involved, Amway will institute
appropriate collection procedures (see Schedule 3.3).
C. Voice-Tel will be paid up front as the draft is sent to the bank.
Amway will be responsible for collections on bank drafts.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.2
BILLING PROCEDURES (Cont.)
3. Consolidated Billing Accounts
-----------------------------
Accounts may be set up to receive a monthly statement from Amway for Amway
Products and Services provided they have five boxes or more. Amway will
use its reasonable best effort to assure that accounts established under
consolidated billing meet all minimum necessary requirements established by
Amway. These accounts are set up and billed as follows:
A. The customer/distributor must fill out a Corporate Profile which
provides information such as name, address, billing address, statement
format, person responsible for the bill, and contact's telephone
number. The profile must be received and input at Amway for the
account to be activated. A Corporate I.D. will be assigned based on
the Corporate Profile.
B. All orders for a consolidated customer will be placed using the
assigned Corporate I.D. Orders may be placed using the normal order
methods (See schedule 3.1).
C. The Billing Cycle
-----------------
1. Statements will be sent approximately 25 days in advance of the
billing date for next month's service. The first month, two
statements will be sent. One for the first 30 days of service
(due upon receipt), the other for the next 30 days of service.
2. Incremental statements will be generated for any changes in
service prior to the due date. These statements will cover only
changes in service and will be due on receipt. A separate
statement will be sent during the month to cover the billing for
usage and will be due upon receipt.
3. On accounts where payment is not received by five days past the
due date, an interrupt will be placed on the box. When payment
is received for a box, the interrupt will be removed.
4. If payment is not received by 15 days after the due date, the box
will be cancelled.
5. Payments received prior to the due date will be invoiced (i.e.,
distributors given credit, AMVOX/Voice-Tel paid) on the due date.
Payments received after the due date will be invoiced when
received.
6. Amway Accounts Receivable department will monitor accounts with
consistent payment records and have the flexibility to mark such
accounts to keep them from automatic cancellation where
warranted.
D. Payment to AMVOX/Voice-Tel will be triggered at the time of invoicing;
i.e., when payment is received.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.3
COLLECTION PROCEDURES
Amway will be responsible for all reasonable best efforts to collect on all
accounts for which payment has not been received. The extent of the collection
effort will be based on the amount to be collected and the length of time
outstanding and will be determined by the Amway Accounts Receivable department.
The collection effort to be made in the normal course of business by type of
payment will be as follows:
1. Credit Card
-----------
A. Credit cards used for new orders will be authorized at the time of
order. Orders will be refused for credit cards that are rejected.
B. Each month on the billing date, Amway will seek authorization for each
credit card prior to invoicing for the monthly payment. For credit
cards that are rejected, a letter will be generated systematically
requesting an alternate form of payment be given to Amway immediately.
The box will be set for a service interrupt 15 days from the billing
date. If no alternate payment is received, the box will be cancelled
at 30 days.
C. Collection from Distributors--Amway will collect from distributors for
----------------------------
amounts due for their service by processing a credit (Code 9) on their
Direct Distributor Summary. This will take place immediately after
the box is cancelled.
D. Collection from Customers
-------------------------
1. For amounts owed by customers of less than $100, the letter at
the time of the rejected authorization will be the only effort
made. The amount owed will be written off.
2. Amounts of $100 and up will be given to a collection agency to
follow up with a series of three demand letters.
3. For amounts in excess of $600, the agency may send a
representative in person to attempt to collect. If unsuccessful,
Amway will be given the option to use an attorney and file suit.
The decision to file suit will be made on an individual basis by
the Amway Accounts Receivable department.
2. Bank Draft
----------
Bank drafts are sent to the bank on the billing date. Of the bank drafts
that are going to be returned for various reasons, 90% are returned within
two weeks. The collection procedures for returned drafts are identical to
those outlined above for credit cards.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.3
COLLECTION PROCEDURES (Cont.)
3. Consolidated Billing
--------------------
A. Consolidated statements are sent out 25 days in advance of the due
date. The statements cover the next 30 days of service (see Schedule
----
3.2). If payment is not received by five days after the due date, the
account is set for service interrupt. If payment is not received by
15 days after the due date, the account is cancelled.
B. The collection procedures are identical to those outlined above for
credit cards.
C. The Accounts Receivable department has the flexibility within the
system to inhibit the automatic cancellation of an account if the
payment history shows the account to be reliable and payment is
expected.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.4
PAYMENT PROCEDURES
Amway will pay Voice-Tel or its assigns for service provided based on the
amounts shown in Schedule 1.1(b). The payment will be made by check(s) on the
10th of the month following the month of service. The amount to be paid will
be divided into three checks as follows:
1. One check to AMVOX, Inc., for AMVOX service provided by non-transferred,
AMVOX-owned systems.
2. One check to Voice-Tel for AMVOX service provided by Voice-Tel franchise
systems as designated by Voice-Tel.
3. One check for Network revenues to be paid to Voice-Tel or its assigns.
The amounts paid will be based on the type of service and the checks will be
accompanied by a reconciliation report which shows service by type and by
system.
The timing and amounts to be paid have been addressed in Schedules 3.2 (Billing
Procedures) and 3.3 (Collection Procedures).
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
[missing a page]
SCHEDULE 3.5
CREDIT/REFUND PROCEDURES (Cont.)
7. Voice-Tel agrees to document all Service Level Challenges in accordance
with the definitions of Schedule 5.1(b) and to keep a record of the same at
the Voice-Tel National Operations Center. This documentation shall be used
to ascertain the applicability of any credit/refund condition.
8. Any conflicts relative to the applicability of a credit/refund condition
are to be handled between the Voice-Tel Director of Franchise Operations
and the Amway Marketing and Programs and Services personnel responsible for
the AMVOX by Voice-Tel program with the consultation and approval of the
affected franchise service center location.
9. The parties agree that this schedule shall be subject to review at least
every 90 days, the first such review within 90 days of the date of
execution shown below. Any changes to this schedule shall require mutual
agreement of both parties.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.6
PRICE CHANGE PROCEDURE
Amway agrees to pay to Voice-Tel the amounts for Amway Products and Services
purchased hereunder until 12 months from the official relaunch date of the
program, at the prices set forth on Schedule 1.1(b). Schedules 1.1(a) and
1.1(b) will be reviewed and reevaluated annually, the first such review to be
completed on or before February 1, 1992. Amway and Voice-Tel will develop for
review proposals addressing pricing, terms, conditions and margin and profit
requirements needed to meet distributor/franchises and Amway/Voice-Tel
objectives.
Amway distributors and Voice-Tel franchisees will be provided 90 days notice
before new pricing can become effective. Price changes made necessary as a
result of agreed upon changes to Amway Products and Services or the program will
also require a 90-day notice to Amway distributors and Voice-Tel franchisees.
Pricing, terms and conditions for any products for services added to the Amway
Products and Services will be subject to the annual review set forth above.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.7
PRODUCT/SERVICE CHANGE PROCEDURES
Voice-Tel and its franchisees will sell to Amway for ultimate use by it and/or
for resale by Amway to its distributors products and services described on
Schedule 1.1(a). Amway and Voice-Tel agree that market changes, challenges,
opportunities, etc., may require that product/service/program changes be made.
Requests for product/service program changes must be submitted in writing to the
appropriate Amway/Voice-Tel personnel for evaluation and consideration. Both
parties will keep each other informed as to who the appropriate individuals are.
Amway and Voice-Tel must mutually agree to any requested product/service/program
change before any change can be made.
Any products/services/programs added to the Amway Products and Services offering
-----
will be subject to the above change requirements upon addition to the program.
New product/service/program offerings or requests must be submitted to the AMVOX
Relaunch/Task Force for evaluation and consideration. Amway and Voice-Tel must
mutually agree to add the new product/service/program before additions can be
made.
Amway distributors and Voice-Tel franchisees will be provided a minimum of 90-
days notice before products/services/programs revisions or additions can become
effective.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 3.8
DISTRIBUTOR/FRANCHISEE RELATIONSHIP
Both Amway distributors and Voice-Tel franchisees are independent contractors.
A such, they are entitled to run their own businesses as they see fit, as long
as they stay within the guidelines of their company's code of ethics and
operating procedures. It is understood, however, that both Amway and Voice-Tel
will utilize their reasonable best efforts to foster a positive working
relationship between their distributors and franchisees, respectively, in the
following areas:
1. No External Business Relationship--Distributors and franchisees should only
---------------------------------
be involved together in the voicemail industry to the extent of
distributors marketing the services described on Schedules 1.1(a), and
2.1. Franchisees will provide this voicemail service in their local area
for distributors to sell.
2. Avoidance of direct Competition--Since distributors and franchisees should
-------------------------------
have consistent goals, in the marketing of voicemail, and both will benefit
from this activity, direct competition should be avoided at all costs.
This goal will be further addressed through the selling channels described
in Schedule 4.1.
3. Pricing/Commission Confidentiality--Franchisees should not share
----------------------------------
information with distributors regarding their commission splits, AMVOX
profits or payments, or how much they are paying on the Leads or Account
Executive Programs.
4. Conflict Resolution--In the event of conflict between a distributor and
-------------------
franchisee, Amway and Voice-Tel each agree to take all reasonable steps to
ascertain and resolve such conflicts to the mutual satisfaction of all
parties involved. In the event of conflict between a distributor and
franchisee, the following communication channels are preferred to evaluate
each situation in a case-by-case manner.
Voice-Tel----------------------Amway
| |
Franchisee Distributor
|
Customer
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.1
SELLING CHANNELS
Amway Targeted Channel
- - ----------------------
The primary focus of Amway and Amway distributors will be in marketing AMVOX by
Voice-Tel to individual and small business users. Distributors should primarily
target accounts that are less than 50 boxes in size and do not require custom
applications. Franchisees should not undercut known distributor pricing in this
targeted market.
Activity Outside Targeted Channel
- - ---------------------------------
Distributor sales activity/interest outside the targeted channel should be
------
directed through the "Leads Program" or "Account Executive Program" detailed on
Schedule 2.1.
Sales and Focus to Support Selling Channels
- - -------------------------------------------
Support literature for distributors will be created per Schedule 4.5 to support
the above selling channels.
Conflict Resolution
- - -------------------
In the event of conflict between a distributor and franchisee, Amway and Voice-
Tel each agree to take all reasonable steps to ascertain and resolve such
conflicts to the mutual satisfaction of all parties involved. In the event of
conflict between a distributor and franchisee, the following communication
channels will be used to evaluate each situation in a case-by-case manner.
Voice-Tel----------------------Amway
| |
Franchisee Distributor
|
Customer
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.2
TRAINING SEMINARS
Training seminars will be planned, organized and conducted by Amway with
approval by Voice-Tel. These in-depth, AMVOX by Voice-Tel workshops will be
offered in cities that will provide adequate distributor participation/cost
recovery. The seminars will be conducted after Voice-Tel franchisees have
assumed operation of AMVOX by Voice-Tel in their areas and after the Marketing
Seminars (see Schedule 4.3) have been conducted. Specialized sales materials
will be provided to attendees at these sessions which will be conducted by
trained Amway Workshop Advisors. Local franchisees will be notified by Amway of
the dates, times, and locations, and will be included in these presentations
where applicable.
Amway will assume the cost for these events and will attempt to offset this
through collection of a "workshop registration fee" from participating Amway
distributors. Costs incurred by Voice-Tel or its franchisees in attending these
events are their own.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.3
MARKETING SEMINARS
Amway will plan, organize, and conduct re-introduction meetings for distributors
in every AMVOX location as soon as possible after the product is relaunched and
the Voice-Tel franchisee has assumed operation/responsibility for the AMVOX
machine and customer base. Where possible, multiple AMVOX locations may have
one re-introduction meeting if they are within a reasonable proximity of each
other. Voice-Tel and its franchisees will be informed of meeting plans in order
to be included in the presentation. Personal meetings between franchisees and
key local distributor leadership is also encouraged and will be planned whenever
possible.
Costs for conducting the Marketing/Relauch seminars and participation by Amway
staff will be assumed by Amway. Expenses incurred by Voice-Tel staff and
franchisees in attending these events are their responsibility.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.4
CUSTOMER SERVICE
Amway Provided
- - --------------
1. Answer General Information Questions
- Service availability
- Different levels of service and cost associated with each
- Enhancements
- Methods of payment accepted
- Ordering procedures
2. Institute All Changes To An Account
- Name changes
- Level of service including enhancements
- Correct any input errors
- Change in method of payment/address
- Cancellations--order level or mailbox level
- Transfer of service
3. Answer all questions regarding PV/BV, Accounts Receivable, interruption
of service, billing questions, and other related questions.
4. Apply interruption of service, cancellations, reinstates, and
removal of interrupts.
5. Respond to any correspondence regarding problems experienced by the
user; however, if the problem is related to challenges with the service
provided on the mailbox, Amway may need to request assistance from
either Voice-Tel or its franchisee.
6. Handle all refunds charges, etc., for any distributor or distributor
generated account.
7. Administer the Lead Program.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.4
CUSTOMER SERVICE (Cont.)
Voice-Tel and/or Franchisee Provided
- - ------------------------------------
It is understood that service is intended to be provided primarily to Amway and
its distributors. It is recognized that occasional end-user assistance may be
necessary and will be accommodated. Referrals of customers back to distributors
will be practiced whenever possible.
1. Handle all questions regarding the setting up and operation of the mailbox.
2. Handle all questions regarding service related problems; i.e., busies, dead
air, clipped messages, purged messages, lack of inventory, etc.
3. Provide appropriate system-wide messages regarding significant downtime
either for anticipated maintenance or system failure.
4. Ability to have personnel to handle questions during normal business hours
Monday through Friday.
5. Emergency number to call after normal business hours (nights, weekends, and
holidays) will be provided by the Voice-Tel National Operations Center.
6. Voice-Tel National Operations Center will have the ability to handle
questions and to bring mailboxes into operation after normal business hours
(for non-transferred sites). They will also provide 800 number backup to
Voice-Tel Customer Service.
Conflict Resolution
- - -------------------
All conflicts should be resolved after Voice-Tel and Amway have heard both
sides. Voice-Tel and Amway will then discuss the situation and reach a mutual
agreement which is satisfactory to all parties involved. The diagram below will
represent appropriate channels of communication.
Voice-Tel----------------------Amway
| |
Franchisee Distributor
|
Customer
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.5
LITERATURE--MARKETING MATERIALS
Amway will be responsible for the development and printing of all literature and
marketing materials to be sold or provided in any manner to Amway distributors
concerning the AMVOX by Voice-Tel program. AMVOX/Voice-Tel will review and
approve all materials developed prior to printing. No materials referring to
the AMVOX program for distribution to Amway distributors or customers may be
developed or distributed without mutual approval of Amway and Voice-Tel.
Amway will design all materials to be sold to distributors and make them
available as standard literature through the Amway Regional Distribution
Centers. Amway will set the cost of the literature which will be based on costs
and Amway required margins and will be in line with the prices for similar
literature available for other Amway programs. No revenues will be shared with
Voice-Tel for the sale of this literature. The literature will be publicized in
the Amway Wholesale Price List (SA-13).
Voice-Tel may submit to Amway additional proposals for the design and
development of literature and of marketing materials. Any cost incurred by
Voice-Tel in submitting such additional proposals shall be Voice-Tel's sole
responsibility.
Use of trademarks in any literature shall be consistent with any licensing
agreements in effect between the parties.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 4.6
PRESS RELEASES
1. News Releases
-------------
A. Drafts of all news releases, whether originated by Voice-Tel or Amway,
must be mutually approved by Voice-Tel and Amway Public Relations
prior to release in a timely fashion.
B. Drafts mutually approved by Voice-Tel and Amway Public Relations must
also be sent to Amway's in-house approval route. Revisions
incorporated by the approval route must be included prior to release.
2. Media Inquiries
---------------
All media inquiries concerning Away Corporation or its independent
distributors must be referred to Amway Public Relations for response. All
media inquiries concerning Voice-Tel or its independent franchisees must be
referred to Voice-Tel for response.
3. Amway Publications
------------------
Amway will be responsible for creating AMVOX articles and the cost for them
to be used in Amway publications. Amway will make its reasonable best
effort to include Voice-Tel in the design, review, and approval of these
articles.
4. Voice-Tel Publications
----------------------
Voice-Tel will be responsible for the cost and creation of any articles on
AMVOX to be used in its publications. Voice-Tel will make its reasonable
best effort to include Amway in the design, review, and approval of these
articles. Copy mentioning Amway or Amway distributors must be approved by
----
Amway prior to printing.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 5.1(a)
EQUIPMENT STANDARDS
1. As of the official relaunch date, all Voice-Tel, franchisee-owned locations
will have a minimum equipment standard of 5.0 Rev. G or higher software and
will have the ability to provide all of the service levels agreed upon in
Schedule 1.1(a).
2. As of the official relaunch date, not all AMVOX-owned locations will be at
the minimum Voice-Tel equipment standard. Therefore, not all service
levels agreed upon in Schedule 1.1(a) will be available in all areas.
3. Upon transfer of an AMVOX-owned location to a Voice-Tel franchisee, all
equipment at the site will be upgraded within 30 days of the transfer date
to the minimum Voice-Tel standards and all Schedule 1.1(a) service levels
will be made available at that time.
4. Selected AMVOX, Inc.-owned locations may be upgraded to the minimum Voice-
Tel equipment standards prior to transfer to a Voice-Tel franchisee based
upon the mutual agreement of Amway and Voice-Tel and the availability of
necessary funding for the same.
5. For future product offerings (additions to Schedule 1.1(a), all Voice-Tel
franchisee-owned locations will be equipped to offer the new service prior
to the launch and promotion of the service at Amway. AMVOX locations will
be equipped as able.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 5.1(b)
EQUIPMENT SERVICE LEVEL STANDARDS
1. Message Storage Capacity
------------------------
Voice-Tel agrees to use its reasonable best efforts to maintain at its
locations sufficient message storage capacity to provide the maximum number
of messages allowed and the number of days retained for all Amway Products
and Services sold or available on the system at service levels agreed upon
in Schedule 1.1(a).
In order to assure these levels, Voice-Tel agrees that message storage
capacity will be incrementally increased when either of the following
conditions exist within an individual system.
A. It becomes necessary to prematurely purge messages to protect a
system's integrity greater than 5 times within a 30-day period.
B. Message storage capacity utilization exceeds 90% for 10 days out of
30.
The above noted incremental capacity increase shall be initiated within 10
days of the documentation of the qualifying condition as reflected on the
Total System Statistics Report available through the Centigram system. It
Is further understood that in the case of AMVOX locations which have not
yet been transferred, the above time limit for increase shall be flexible
based upon available resources and the status of current transfer
negotiations on the system in question.
2. Incoming Call Throughput
------------------------
Voice-Tel agrees to use its reasonable best efforts to maintain at its
locations sufficient incoming call throughput capacity to maintain a hybrid
P.02 level of service.
In order to assure these levels, Voice-Tel agrees that incoming call
throughput capacity shall be incrementally increased at the time the all
Trunks Busy (ATB) condition on an individual system exceeds 2% during the
normal business day of 8 a.m. to 5 p.m, Monday through Friday for 10 days
out of 30. This condition shall be determined by using the ATB Summary
Report available through the Centigram system.
The above noted incremental capacity increase shall be initiated within 10
days of the documentation of the qualifying condition. It is further
understood that in the case of AMVOX locations which have not yet been
transferred, the above time limit for increase shall be flexible based upon
available resources and the status of current transfer negotiations on the
system in question.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 5.1(b)
SERVICE LEVEL CHALLENGES AND RESPONSE TIMES (Cont.)
3. Service Level Challenges and Response Times
-------------------------------------------
Amway and Voice Tel agree that the following list shall define the various
Service Level Challenges which may occur within an individual system and
Voice-Tel agrees to use its reasonable best efforts to clear the reported
challenges within the time frame allotted on the accompanying chart from
the time the challenge is reported.
SERVICE LEVEL CHALLENGES
Catastrophic --No service to greater than 30% of the customers
------------
Emergency --No service to 30% or less customers
---------
Major --Impaired service to greater than 30% of the customers
-----
Minor --Impaired service to 30% or less customers
-----
Individual --No service to one customer
----------
Inquiry --Impaired service to one customer
-------
CHALLENGE RESPONSE TIMES
Catastrophic 12 hours
------------
Emergency 18 hours.
---------
Major 24 hours
-----
Minor 72 hours
-----
Individual 24 hours
----------
Inquiry 48 hours
-------
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 5.1(c)
CUSTOMER SERVICE STANDARDS
Amway Staffing Requirements
- - ---------------------------
1. All calls should be answered on the average of 90 seconds.
2. All correspondence should be handled within 10 working days (there may be
exceptions).
3. All staffing requirements will be determined based on call volume and
workload.
Voice-Tel Staffing Requirements
- - -------------------------------
1. Sufficient Customer Service available within 60 days (preferably 30 days)
after site transfer.
2. Customer Service Representatives to work during normal business hours
Monday through Friday.
3. Holiday, after-hour emergencies, and weekends to be handled by either Los
Gatos Customer Service or through franchisee provided local emergency
number with reasonable response time.
4. All calls need to be answered in a reasonable period of time.
Business Line Requirements
- - --------------------------
Inbound Calling
1.5 business lines per available staff person
Conflict Resolution
- - -------------------
Amway and Voice-Tel will hear all sides of the situation and reach a mutual
agreement which will satisfy all parties concerned.
Voice-Tel----------------------Amway
| |
Franchisee Distributor
|
Customer
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 5.1(c)
CUSTOMER SERVICE STANDARDS (Cont.)
Reporting Procedures
- - --------------------
1. Voice-Tel franchisee will notify Voice-Tel National Account Representative
anytime significant system downtime occurs or is anticipated.
2. The Voice-Tel National Account Representative will notify Amway via phone
or a message in the AMVOX Supervisor's or Customer Service Representative's
mailbox of any system challenge--including what the challenge is and the
anticipated time of resolution. The Voice-Tel National Account
Representative will also notify same when the challenge has been resolved.
3. Voice-Tel National Account Representative will provide Amway with a report
by AMVOX System ID number giving AMVOX NPA/NXX, city, state, and zone, and
update the same whenever a change occurs in any of the above information.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
SCHEDULE 5.1(d)
GEOGRAPHIC SCOPE AND TIMETABLE
The growth and development of the Voice-Tel franchise system not only includes
the transfer of 70 AMVOX sites to a combination of both new and existing
franchisees, but also includes the development of new franchise territories
throughout the United States. Although future International development is
envisioned, for the purposes of this Service and Reseller Agreement, the
geographic scope is limited only to development within the United States.
Voice-Tel will employ its reasonable best efforts to sell and open operating
franchise units in each of the top 100 SMSA's within the United States with the
express goal of having 149 operating service center locations by the end of
calendar year 1992. As envisioned in the Voice-Tel Comprehensive Business Plan,
these service locations will provide local calling access to Voice-Tel voice
messaging services to in excess of 5000 cities, towns and communities.
In addition, Voice-Tel will use its reasonable best efforts to provide
functional networking capability to a minimum of 35% of the combined Voice-
Tel/AMV0X existing service center locations by the end of June, 1991; to 70% of
the combined service center locations by the end of calendar year 1991; with the
anticipation of complete networking access by all combined and newly developed
service center locations by the end of June, 1992.
The official relaunch date of AMVOX by Voice-Tel is February 1. 1991.
Approvals: /s/ James J. Rosloniec 11/28/90 /s/ Alan J. Carter 11/28/90
------------------------------- ---------------------------
FIRST AMENDMENT TO
SERVICE AND RESELLER AGREEMENT
------------------------------
THIS FIRST AMENDMENT TO SERVICE AND RESELLER AGREEMENT ("Amendment") is
entered into this 19th day of March, 1996 by and between AMWAY CORPORATION, a
Michigan corporation ("Amway") having its principal place of business at 7575
Fulton Street East, Ada, Michigan 49355 and VOICE-TEL ENTERPRISES, INC., a
Delaware corporation, ("Voice-Tel") having its principal place of business at
23200 Chagrin Blvd., Suite 800, Beachwood, Ohio 44122.
WHEREAS Amway and Voice-Tel entered into a Service and Reseller Agreement
dated September 28, 1990 ("Agreement");
WHEREAS Amway and Voice-Tel desire to amend the Agreement in order to
extend the initial term of the Agreement.
NOW, THEREFORE, in consideration of the mutual obligations and promises of
the parties as set forth below, IT IS AGREED as follows:
1. Section 9.1 of the Agreement is hereby amended and restated to read in its
entirety as follows:
"9.1. Term. The initial term of this Agreement will expire at 12:01 a.m.
----
on January 1, 1997. This Agreement shall be automatically renewable
for an indefinite number of one-year renewal periods if neither party
gives written notice of termination at least one hundred eighty (180)
days prior to the end of the initial term of this Agreement or any
renewal period."
2. Voice-Tel acknowledges that Amway is free to discuss and negotiate and to
enter into agreements or transactions with any third parties for the
provision of voice-messaging services which may be in whole or partial
substitution of the voice-messaging services currently provided through
Voice-Tel under the Agreement provided that Amway will continue to abide by
the provisions of Article VIII of the Agreement (which addresses the sale
or distribution of competitive services) during the term of the Agreement.
3. Other than the changes to the Agreement set forth in Section 1 above of
this Amendment, the Agreement is and will be in full force and effect in
accordance with its terms.
SECOND AMENDMENT TO
SERVICE AND RESELLER AGREEMENT
------------------------------
THIS SECOND AMENDMENT TO SERVICE AND RESELLER AGREEMENT ("Second
Amendment") is entered into this 25th day of June, 1996 by and between AMWAY
CORPORATION, a Michigan corporation ("Amway") having its principal place of
business at 7575 Fulton Street East, Ada, Michigan 49355 and VOICE-TEL
ENTERPRISES, INC., a Delaware corporation, ("Voice-Tel") having its principal
place of business at 23200 Chagrin Blvd., Suite 800, Beachwood, Ohio 44122.
WHEREAS Amway and Voice-Tel entered into a Service and Reseller Agreement
dated September 28, 1990 ("Agreement");
WHEREAS Amway and Voice-Tel entered into a First Amendment to Service and
Reseller Agreement dated March 19, 1996 ("First Amendment").
WHEREAS Amway and Voice-Tel desire to amend the Agreement and the First
Amendment in order to change the initial term and termination provisions of the
Agreement.
NOW, THEREFORE, in consideration of the mutual obligations and promises of
the parties as set forth below, IT IS AGREED as follows:
1. Section 9.1 of the Agreement and Section 1 of the First Amendment are
hereby amended and restated to read in their respective entirety as
follows:
"9.1. Term. "Either party may terminate this Agreement at any time upon
----
issuance of a written notice not less than one hundred eighty (180)
days prior to the effective date of such termination, such notice to,
among other things, specify the termination date which the parties
agree can only be the last day of a calendar month that falls at
least one hundred eighty (180) days from the issuance of the
termination notice."
2. Other than the changes to the Agreement and First Amendment set forth in
Section 1 above of this Second Amendment, the Agreement and First Amendment
are and will be in full force and effect in accordance with their
respective terms.