EXHIBIT 10.11
FRONTIER
AMENDMENT #3 TO AGREEMENT
CTC Communications Corp.
November 4, 1996
This is Amendment #3 to the Agreement Terms and Conditions between Frontier
Communications International, Inc., f/k/a/ RCI Long Distance, Inc.
("frontier") and CTC Communications Corp., f/k/a Computer Telephone Corp.
("Purchaser"), dated October 20, 1994, as amended (the "Agreement").
1. Purchaser's Directory Assistance Rates for all switched and dedicated
outbound traffic shall reflect the postalized rate of $ per call. These rates
shall become effective no later than thirty (30) days from the date of
execution by Frontier.
2. The balance of the Agreement and any amendments, addenda or other
written modifications thereto not modified by this Amendment remain in full
force and effect. Except as otherwise stated, capitalized terms used herein
have the same meaning as set forth in the Agreement.
Frontier Communications CTC Communications Corp.
International, Inc
/s/ /s/
By: _________________________By: _________________________
Brian Fitzpatrick, Steven P.Milton,
Vice President President
Date: December 12, 1996 Date: 11/18/96
AMENDMENT #2 TO AGREEMENT
This is Amendment #2 to the Agreement Terms and Conditions between Frontier
Communications International Inc. f/k/a RCI Long Distance, Inc. ("Frontier")
and CTC Communications Corp. f/k/a Computer Telephone Corp. ("CTC" or
"Purchaser") dated 10/20/94, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same
meaning as set forth in the Agreement. The terms of this Amendment apply to
the National Origination Services (NOS) serviced by Frontier's Michigan
platform. If there is a conflict between the terms of this Amendment and the
terms of the Agreement with respect to such services, the terms of this
Amendment control.
2. The interstate (48 contiguous United States) rates for the switched NOS
under the Agreement are replaced with the following: $ per minute for inbound
and outbound traffic. The new interstate rate for dedicated NOS inbound and
outbound traffic is $ per minute.
3. The NOS international rates under the Agreement are replaced with the
international rates set out in the attached pricing schedules.
4. The last paragraph of Section 8.1 of the Agreement dealing with CTC's
monthly minimum billing obligations is deleted.
5. The term of the Agreement is extended for a period of 5 years from the
effective date of this Amendment. Over such extension period, CTC shall be
liable for a minimum aggregate usage commitment for the Services of
$25,000,000. CTC shall be liable for any shortfall if it fails to meet the
minimum by the end of the extension period.
6. CTC commits to the following usage schedule for the remaining term of the
Agreement. For any month in which CTC falls below an applicable threshold
level, the rates in paragraph 2. above will be increased to $ and $ per
minute, respectively.
Monthly Usage
Time Period Threshold
Effective date of this Amendment thru 9/97$ 400,000
10/97 through 9/98 600,000
10/98 through 9/99 800,000
10/99 through 9/2000 1,000,000
10/2000 through end of Agreement term 1,200,000
7. This Amendment and the Agreement shall be binding on the permitted assigns
and any successor-in-interest of the parties.
8. The balance of the Agreement and any amendments, addenda or other written
modifications thereto not modified by this Amendment remain in full force and
effect. The parties agree that signed facsimile copies of this Amendment may
serve as originals and are binding on the parties. This Amendment is
effective as of the date signed by Frontier as set forth below.
Frontier Communications CTC Communications Corp.
International, Inc.
By: /s/ Anthony J. Cassara By: /s/ Steven P. Milton
Title: President Frontier Carrier Svcs Title: President
Printed Name: Anthony J. Cassara Printed Name: Steven P. Milton
Date:10/11/96 Date:10/3/96
10/1/96
AMENDMENT #1 TO AGREEMENT
This is Amendment #1 to the Agreement Terms and Conditions between Frontier
Communications International Inc. f/k/a RCI Long Distance, Inc. ("Frontier")
and Computer Telephone Corp. ("CTC" or "Purchaser") dated 10/20/94 (the
"Agreement").
PURPOSE
Frontier is making additional transport services available to CTC for CTC's
switched traffic originating and terminating on Frontier's network and
serviced on Frontier's Michigan platform (such services hereafter defined as
the "National Origination Services")
1. Except as otherwise stated in Exhibit A attached hereto and made a part
hereof capitalized terms used herein have the same meaning as set forth in the
Agreement. The terms of this Amendment apply to all services provided to CTC
via Frontier's Michigan Platform. If there is a conflict between the terms of
this Amendment and the terms of the Agreement with respect to such services,
the terms of this Amendment control.
2. Exhibit C attached hereto is made a part of this Amendment.
3. CTC shall be subject to the applicable charges under the Ancillary Fee
Schedule attached hereto as Exhibit B and made a part hereof.
4. The services are expanded to include the National Origination Services at
the applicable rates set out in the attached Switched Outbound Services
Schedule.
5. The balance of the Agreement and any amendments, addenda or other written
modification thereto not modified by this Amendment remain in full force and
effect. The parties agree that signed facsimile copies of this Amendment may
serve as originals and are binding on the parties. This Amendment is
effective as of the date signed by Frontier as set forth below.
Frontier Communications Computer Telephone Corp.
International Inc.
/s/ /s/ Robert Fabbricatore
By: _________________________ By: __________________________
Chairman
Title: _____________________ Title: _______________________
Printed Name: _______________ Printed Name: ________________
Date: _______________________ Date: ________________________
EXHIBIT A
GENERAL DEFINITIONS
for National Origination Services
(not otherwise defined in the body of
the Agreement or its attachments)
1. Frontier 800 Numbers are 800/888 telephone numbers ordered onto the
Frontier network by Purchaser and for which Frontier has either (i) been
appointed the RespOrg, or (il) reserved and issued the 800 telephone number to
Purchaser, Frontier shall be deemed to be the RespOrg for all 800/888
telephone numbers reserved and issued by it under (ii) above.
2. ANI is a telephone number.
3 ANI Information is the adds, moves and terminations of End-User ANIs.
4. Billing Cycle is the Frontier billing cycle to which Purchaser's account
hereunder is assigned by Frontier (a full billing cycle equals approximately
30 days of Services usage).
5. Business Day is Monday through Friday, 8:30 am to 5:30 pm Detroit, MI,
local time, excluding nationally recognized holidays. Unless otherwise
stated, "days" refers to calendar days.
6. Prescribed means that (i) an End-User has had its ANIs placed on
Frontier's CIC, or (ii) an End-User's ANIs have been placed on Purchaser's CIC
and such CIC has been directed or translated to the Frontier network. For
example, if Purchaser has ordered an End-User onto Frontier's network
directly, or if an End-User has selected Purchaser as its primary carrier and
Purchaser has directed its CIC to Frontier, such End-Users are deemed to be
Presubscribed to Frontier.
7. Carrier 800 Numbers are 800/888 telephone numbers ordered onto the
Frontier network by Purchaser for which a party other than Frontier or
Purchaser has been appointed the RespOrg.
8. CDR means call detail records and CDR Tape is a magnetic tape containing
CDR.
9. Purchaser 800 Numbers are 800/888 telephone numbers ordered onto the
Frontier network by Purchaser for which Purchaser has been appointed the
RespOrg.
10. End users are customers of Purchaser for which Purchaser has submitted
an order that has been accepted by Frontier during the term of this Agreement.
To the extent that Purchaser subscribes to the Services for its own use,
Purchaser is deemed to be an End-User.
11. 800 Numbers collectively refers to the Frontier 800 Numbers, Carrier 800
Numbers and Purchaser 800 Numbers.
12. Guidelines refer to the telecommunications industry's general rules with
respect to 800/888 number portability, including but not limited to, (i) the
Federal Communications Commission's ("FCC") 800/888 number portability
policies and rules, (ii) the SMS 800 requirements set forth in the Bell
Operating companies' Tariff FCC No. 1, and (iii) the CLC 800 DataBase Ad-Hoc
Committee's Guidelines for 800 DataBase, as all of the foregoing may be
replaced or modified from time to time.
13 RespOrg is a responsible organization as defined in the Guidelines. A
RespOrg is the entity that is responsible for managing and administering the
account records in the 800 Service Management System DataBase.
SERVICE DEFINITIONS
(for National Origination Services)
1. Directory Assistance Service consists of calls made by End-Users to
directory providers for assistance in locating a non-800 Number. "800
Directory Assistance" consists of calls made to directory providers for
assistance in locating a Frontier 800 Number.
2. Inbound Services refers to inbound traffic under the Switched Services.
3. International Services consist of international traffic generated via
the Switched Services.
4 Switched Services consist of switched inbound and outbound long distance
traffic generated by End-Users that originates and terminates on the Frontier
network.
EXHIBIT C
CALL DETAIL RECORDS
ORDER PROCESSING REQUIREMENTS
(for National Origination Services)
I. Call Detail Records:
1. Purchaser has the option of receiving call detail records for
usage of the Services ("CDR") on (i) a monthly basis, (ii) a daily pre-bill
run basis, or (iii) no CDR at all. Purchaser may also elect both options (i)
and (ii), as further detailed below. Regardless of the option selected,
Purchaser shall upon its execution of this Agreement, pay Frontier the
non-refundable account set up fee set out in Exhibit B. Provided Purchaser is
not in default under this Agreement, the account set up fee will be credited
to the Invoice following the Billing Cycle in which Purchaser's Minimum Charge
first becomes effective and is met or paid.
2. If Purchaser elects option 1. (i), then on or about the fifth
Business Day following the end of a Billing Cycle. Frontier will deposit with
an overnight delivery service for delivery to Purchaser a CDR Tape in the
format established by Frontier. CDR Tapes rate the Services at the standard
Frontier rates in effect at the time the Services were provided and must be
re-rated by Purchaser at its tariffed rates. Purchaser shall pay the monthly
recurring charge set out in Exhibit B. Software modifications to the CDR Tape
format requested by Purchaser are subject to Frontier approval and will be
invoiced to Purchaser at the charges set out in Exhibit B.
3. If Purchaser elects option 1. (ii), then Frontier will provide CDR
on a pre-bill basis once a day, Monday through Saturday, excluding nationally
recognized holidays, for the prior period's traffic. For each pre-bill
computer run performed by Frontier (during Frontier established time periods),
Frontier will deliver CDR by electronic data exchange ("Electronic Exchange")
to either (i) Purchaser's designated mainframe computer via the IBM
Information Network ("IIN") via Network Data Mover ("IIN"), or (ii) dedicated
personal computer via Procomm+ software. Purchaser is liable for all
transmission charges together with the cost of hardware and software necessary
at its location for use of IIN, NDM or Procomm+, which hardware and software
must comply with the formats and technical specifications that Frontier from
time to time may promulgate. Frontier will archive CDR for 8 Business Days
and redeliver CDR to Purchaser upon request.
4. Purchaser may cancel an option at any time on 30 days written
notice. Purchaser may exchange an existing option or select a new option at
any time upon written notice and payment to Frontier of any then current set
up charge for such option. Changes or new selections are effective in the
second Billing Cycle following receipt of the request and any required set up
charge.
II. Order Processing Procedures:
1. Orders for the Services are transmitted in a format designated by
Frontier via the CDR transmission media selected by Purchaser. Ar the time
Purchaser submits an order for Service, Purchaser shall furnish Frontier with
the name, billing and service addressed and ANI of each presubscribed End-user
(the "End-User Information"). The End-User Information is required for LEC
account set-up, normal call processing and handling NXX level customer
service. The End-User Information is deemed to be Purchaser's proprietary
information under the Agreement.
2. If the traffic is such that Frontier determines in its sole
discretion that a delay in processing orders is required, Frontier may delay
order processing for such period of time as Frontier deems necessary in its
reasonable business judgment. Any such delays will not, however, adversely
impact Purchaser for the purpose of determining whether Purchaser has met any
minimum usage requirements under the Agreement; Frontier agrees to adjust the
requirements to reflect such delay.
3. End-User ANIs:
A. Purchaser understands and agrees that activation of
End-User ANIs is contingent on the End-User Information associated with such
ANIs complying with LEC established criteria. Assuming receipt of properly
formatted End-User Information that complies with the LEC established
criteria, ANIs will generally be activated within 10 Business Days of receipt
by Frontier of the End-user Information. If the End-User Information does not
comply with LEC criteria, Frontier will return the same to Purchaser for
Purchaser's correction and resubmission.
B. Once each calendar month Frontier will provide Purchaser with a
written report of ANI Information. If Purchaser has elected to receive CDR
via Electronic Exchange, then the ANI Information will be transmitted via
Electronic Exchange, rather than by a written report. If 10% or more of the
aggregate End-User Information submitted by Purchaser in any calendar month
must be returned to Purchaser for corrections and resubmission, Frontier may
at its discretion either cease providing the ANI Information or charge
Purchaser for continuing to provide the same.
4. 800 Numbers:
Notwithstanding the order transmission media selected under the agreement,
until such time as Frontier determines in its sole discretion that Electronic
Exchange and/or magnetic tape processing is available for the reservation or
ordering of 800 Numbers (and informs Purchaser of such availability), orders
for activation or reservation of 800 Numbers will be by facsimile and subject
to the following.
A. Subject to (i) the Guidelines and (ii) delays attributable
to third parties, 800 Numbers will generally be activated and confirmed by
Frontier within 2 Business Days of receipt by Frontier of a proper order in
accordance with the order processing requirements set forth below.
(a) Orders must be submitted to Frontier via facsimile using the forms
supplied by Frontier, and must include (x) a letter of authorization in the
format attached hereto as Attachment 4.A.(a)(x) and made a part hereof, if
Frontier is being appointed the RespOrg, and (y) the End-User Information for
each 800 Number, including the ANI translation for each 800 Number.
(b) At such time as Frontier may make Frontier 800 Numbers
available to Purchaser, Purchaser may request reservation of a specific
Frontier 800 Number from the SMS 800 DataBase via facsimile using the forms
supplied by Frontier. Charges for requests will be invoiced to Purchaser at
the cost set out in Exhibit B. Frontier will either confirm reservation or
indicate unavailability via facsimile generally within 2 Business Days of its
receipt of the request. Verbal requests for, and verbal confirmations of,
reservations will not be honored by Frontier. Allnet reserves the right at any
time to limit the quantity or discontinue the availability of Frontier 800
Numbers.
(c) If Frontier has reserved a Frontier 800 Number for Purchaser and
Purchaser does not order activation of the reserved number in accordance with
item (a) above within 10 Business Days from the date of Frontier confirmation
of the reservation, the reserved number will be assigned to the Frontier pool
of 800 numbers and be available to Frontier for its own business purposes.
Purchaser understands and agrees that it is responsible for all damages and
claims if Purchaser assigns a reserved Frontier 800 Number to an End-User
without having timely ordered activation of such 800 Number with Frontier and
such 800 Number is assigned by Frontier to a third party. Purchaser agrees to
defend and indemnify Frontier from any claims and costs (including reasonable
attorney fees) relating to Purchaser's assignment of 800 Numbers.
B. The Frontier facsimile numbers and contacts to be used for 800
Number reservations are 1-800-875-HELP(4357), Attention: Special Services, and
for 800 Number Orders 1-800-433-5132, Attention: Network Services/Order
Fulfillment. The Purchaser facsimile number and contacts to be used for said
purposes are 6174661263, Attention: CTCLD Group. Either party may change its
respective facsimile number or contact upon prior written notice to the other
party.
5. If the End-User information or other order information submitted by
Purchaser is incomplete or inaccurate, Frontier will return the same to
Purchaser for correction and resubmission.
6. Service Cancellation:
Upon Purchaser's request, Frontier will to the extent possible, block or
cancel service to End-Users. Frontier shall not be liable to Purchaser or
End-Users for any damages, costs or charges with respect to Frontier's
compliance with Purchaser's request; and Purchaser shall be solely responsible
for and shall defend and indemnify Frontier against any claims and costs
(including attorney fees) by End-users or other third parties related to the
blocking or cancellation of an End-User's service at the request of Purchaser.
III. Letter of Agency Requirements.
1. Purchaser is responsible for obtaining valid letters of agency
from prospective End-Users to be Presubscribed in accordance with the
following:
A. Frontier acknowledges that at times Purchaser may obtain
prospective End-Users through telemarketing and tape recorded third party
verifications in accordance with FCC Guideline Subpart K section 64.1100 (c)
as the same may be amended, interpreted or clarified ("Verbal LOA").
Purchaser understands that some LECs will not accept Verbal LOAs as valid
authorization for a change of long distance carriers and agrees that for
prospective End-users located in such LECs' jurisdictions it will use Written
LOAs. If Purchaser elects to use, or is required to use,written letters of
agency ("Written LOAs") for prospective End-Users it shall use a format that
complies with FCC Guideline Subpart K section 64.1150 as the same may be
amended, interpreted or clarified. Purchaser shall retain all Verbal LOAs
tapes and transcripts and Written LOAs used and promptly make the originals
available upon the request of Frontier, a LEC or any regulatory agency.
B. Purchaser agrees that a Verbal LOA may be used to presubscribe
a prospective End-User to Frontier, but that the Verbal LOA will not be
accepted by Frontier as documentation in any PIC or "slamming" claims.
Frontier is not obligated to "work" disputes with respect to "slamming" or
similar claims from End-Users or prospective End-Users. Frontier will refer
LEC inquiries,and pass ;through any LEC charges imposed on Frontier for such
claims, directly to Purchaser, including without limitation, Primary
Interexchange Carrier charges or any other charges and penalties imposed by a
LEC or regulatory agency (collectively, PIC Charges") with respect to such
claims. PIC Charges will be billed to Purchaser periodically on an Invoice.
Verbal LOAs and Written LOAs are collectively referred to as "LOAs".
Purchaser shall defend and indemnify Frontier against any and all claims,
including without limitation, any End-User,LEC or regulatory agency
claims,arising from or related to purchaser's failure to use or provide valid
LOAs.
2. Purchaser shall not transfer a Presubscribed End-User to another
carrier (other than Purchaser's own network), except wi[h a valid LOA.
Notwithstanding the foregoing, if Frontier is in breach of this Agreement and
fails to cure the breach in accordance with the terms hereof, then Purchaser
may transfer End-Users to another carrier.
SWITCHED OUTBOUND SERVICES SCHEDULE
(NATIONAL ORIGINATION SERVICE)
The rates and discount credits described in this Schedule and any attachments
hereto are in lieu of any standard volume discounts and any promotional rates
or discounts that may from time to time be offered by Frontier for the
Services. Domestic means the 48 contiguous United States. Any discount
credits are applied against Purchaser's monthly interstate usage charges.
Unless otherwise stated, domestic switched calls are measured in 6 second
increments after an 18 second minimum and international calls are measured in
6 second increments after a 30 second minimum.
1. For outbound traffic, Purchaser shall pay the rates set out in the
existing contract and to the extent not specifically listed in the existing
contract, then at the applicable rates set out in the attached pricing
schedule. In any given month, a minimum of 85% of Presubscribed End-User ANIs
must be located in Regional Bell Operating Company (RBOC) or GTE serviced
areas and be subject to RBOC/GTE tariffed rates. If Purchaser falls below the
minimum in any month, Frontier will notify Purchaser and allow Purchaser 30
days to correct; if Purchaser fails to correct, Frontier may apply a $0.04 per
minute surcharge to all of Purchaser's domestic outbound Switched Services
usage from non RBOC or GTE service areas in that month. Upon Purchaser
returning to 85% criteria, other penalty shall be removed.
2. Upon purchaser's request, Frontier may make available to Purchaser: (i)
an available 700 number (1-700-555-XXXX) and a recorded message that
identifies purchaser to Presubscribed End-Users as their carrier, (ii) 2,3,
and 4 digit non-validated accounting codes, and (iii) 3 digit Select 50 and 4
digit Select 200 validated accounting codes. Frontier will make the 700
number available for Purchaser's use within 15 Business Days after receipt of
the request. Two digit non-validated accounting codes are not available with
the Dedicated Services; no accounting codes are available for the Inbound
Services. Purchaser shall pay any installation and monthly recurring charges
for the 700 number and the accounting codes as set out in Exhibit B of the
Agreement. Purchaser shall be liable for all charges associates with Service
usage generated by accounting codes issued by Frontier under this Agreement.
AGREEMENT
TERMS AND CONDITIONS
by and between
RCI LONG DISTANCE, INC.
AND
COMPUTER TELEPHONE CORP.
DATED:
OCTOBER 20, 1994
TABLE OF CONTENTS
1. Service Provided
2. Connection Facilities
3. Charges
4. Cancellation of Service
5. Liability of RCI
6. Liability of CTC
7. CTC's Obligation
8. Term, Condition, Payment and Deposit
9. Independent Contractors
10. Force Majeure
11. Assignment
12. Notice
13. Confidentiality
14. Indemnification
15. General
EXHIBITS
EXHIBIT A : RCI Domestic Switched Rates
EXHIBIT B : RCI Canadian and International Switched Rates
EXHIBIT C : RCI Switched 800 Rates
EXHIBIT D : RCI Directory Assistance Rates
EXHIBIT E : Other Charges
TERMS AND CONDITIONS
1. SERVICES PROVIDED
RCI Long Distance Inc., a Delaware Corporation with offices at 180 South
Clinton Avenue, Rochester, New York 14646 t"RCI"), will provide Computer
Telephone Corp., a Massachusetts Corporation with offices at 360 Second
Avenue, Waltham, Massachusetts 02154 ("CTC") with interstate, international
and, if permitted by applicable regulations in CTC's state, intrastate
transmission and switching facilities needed to transmit and terminate CTC's
traffic to all points specified within the Exhibits attached hereto. The
parties contemplate that CTC may order service to/from additional points from
time to time during the term of this Agreement. These new services shall be
governed by the terms and conditions of this Agreement, and will be described
within Addenda which will be made part hereof. The services contemplated
under this Agreement are non-exclusive and shall include switched services,
private line services as well as other dedicated facilities necessary to
permit the transmission of CTC's communication over the RCI Network.
2. CONNECTION FACILITIES
CTC's customers will originate on either dedicated access facilities to RCI's
point-of-presence (P.O.P.) or on RCI's switched network, utilizing CTC's CIC
code where sub-CIC billing is offered by the applicable local telephone
company.
3. CHARGES
3.1 CTC shall pay the charges for the services and the equipment, any,
provided hereunder as specified in any Exhibit or addendum to this Agreement.
The charges shown in each Exhibit or Addendum are fixed for the term of this
Agreement and/or when term of a specific service is stated in an Exhibit or
Addendum attached hereto, for the term specified therein, unless the action of
any governmental authority having jurisdiction over RCI's service increases
RCI's costs in providing such service, in which case, RCI may increase the
charges set forth in the affected section. Should the increased rates be
determined to be detrimental to CTC, then CTC shall have the right to
terminate this Agreement with thirty (30) days written notice. Should CTC not
request termination of the rate based on a rate modification within thirty
(30) days of the effective date of the modification, CTC shall forfeit the
right to terminate the Agreement based on the effected rate modification.
3.2 For Switched Minutes of Use (MOU) terminating in the domestic U.S., RCI
will bill CTC in six (6) second increments. Call duration will be measured by
RCI from time of answer (Time Point 6) to time of disconnect (Time Point 7).
Hardware answer supervision will be used whenever possible and will be passed
to CTC upon request. Rating periods for domestic traffic are as follows:
Daytime- Monday through Friday, 8:00 AM to 5:00 PM; Evening- Monday through
Friday and Sunday, 5:00 PM to 11:00 PM; Night/Weekend- Sunday through Friday
11:00 PM to 8:00 AM, Friday 11:00 PM to Sunday 5:00 PM. Time Zones for
billing of domestic traffic will be determined by point of interconnection
with the RCI network. For MOU terminating outside the U.S., RCI will bill CTC
for the initial thirty (30) second increment and six (6) second increments
thereafter for the remainder of each call. Call duration will be measured by
RCI from time of answer (Time Point 6) to time of disconnect (Time Point 7).
Hardware answer supervision will be used whenever possible and will be passed
to CTC upon request.
4. CANCELLATION OF SERVICE
Where CTC cancels service prior to RCI's incurring any charges, or starting
any internal processing of CTC's orders there shall be no termination charge.
Where the order process has begun, the installation of facilities and/or
equipment has been started prior to the cancellation of service, a termination
charge of $500.00 per Access Service Request (ASR) will apply plus any/all
charges incurred by RCI, as agent or otherwise, will apply. The prices
contained in this Agreement or any Addenda are based on the expectation that
CTC will continue to subscribe to each of RCI's services described in this
Agreement or Addenda for the entire term of this Agreement.
5. LIABILITY OF RCI
RCI's sole liability under this Agreement for interruption of service or
failure of equipment shall be limited to the amount of actual RCI charges
incurred by CTC during a period of such interruption, provided that such
interruption was caused solely by RCI's willful act or omission or negligence.
RCI shall not be liable for any interruption caused by the negligence or any
act or omission of CTC or any third party furnishing any portion of the
service. RCI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR USE. IN NO EVENT SHALL RCI BE LIABLE TO CTC OR ANY OTHER PERSON OR
ENTITY FOR INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST REVENUES OR PROFITS, EVEN IF RCI HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF.
6. LIABILITY OF CTC
CTC shall be liable to RCI for any loss or theft of or damage to any of RCI's
equipment located on CTC's premises, however caused. CTC assumes all
liability associated with any/all fraudulent traffic and unauthorized PIC
"slamming", however caused CTC shall indemnify and defend RCI from any cost or
expense due -to claims for libel, slander, infringement of copyright,
trademark, trade name or trade secret arising out of the contents of CTC's
transmissions using RCI's service and equipment and claims for patent
infringements arising from the combination or connection of the equipment to
any property of CTC. CTC shall not use RCI's service or the equipment for any
unlawful purpose.
7. CTC's OBLIGATION
7.1 CTC shall conform to all regulatory requirements required by any local,
state or federal agency having jurisdiction over the provision of long
distance service.
7.2 CTC shall notify RCI of a variance to CTC's original forecast of call
volume exceeding plus or minus twenty percent (+/-208). CTC will notify RCI
ten (10) business days in advance of such occurrence. In addition, CTC will
notify RCI of any new sales offices and sales efforts, so that RCI can
maintain a properly trunked network.
8. TERM, CONDITION, PAYMENT AND DEPOSIT
8.1 The term of this Agreement and, unless otherwise specified therein, each
Addenda made a part hereof shall be three (3) years from the first full month
of service ("Effective Date"). This Agreement will automatically renew for
consecutive one (1) year periods until either party provides the other with
written notification of their intent of non-renewal. Such notification must
be provided at least ninety (90) days prior to the termination date. In the
event of non-renewal, CTC must remove all lines ("ANI's") PIC'd to RCI's
feature groups by the termination date. Any ANI not removed from RCI's
feature group by such time will be deleted from RCI's switch.
CTC agrees to maintain a monthly minimum billing obligation as defined below:
Month Amount Month Amount
1 $ 0 19 $325,000
2 $ 5,000 20 $350,000
3 $ 10,000 21 $350,000
4 $ 20,000 22 $350,000
5 $ 35,000 23 $350,000
6 $ 50,000 24 $350,000
7 $ 65,000 25 $350,000
8 $ 80,000 26 $350,000
9 $100,000 27 $350,000
10 $115,000 28 $350,000
11 $125,000 29 $350,000
12 $150,000 30 $350,000
13 $175,000 31 $350,000
14 $200,000 32 $350,000
15 $225,000 33 $350,000
16 $250,000 34 $350,000
17 $275,000 35 $350,000
18 $300,000 36 $350,000
CTC agrees to maintain a minimum monthly billing obligation for services
commencing upon the first full month service during the ramp-up period of
twenty (20) months as set forth above, and to maintain a three hundred and
fifty thousand($350,000) per month billing obligation thereafter for the term
of the Agreement. For the purpose of calculating CTC's total billing, RCI
will aggregate all domestic, international, Canadian and directory assistance
traffic originating on RCI's sub-CIC product. CTC agrees that RCI has the
right to terminate this Agreement if CTC is not billing a minimum of seventy
five thousand dollars ($75,000) per month by month twelve (12) through thirty
six (36) of this Agreement.
8.2 RCI shall bill CTC monthly and CTC shall pay such bills on or before the
due date specified therein. The cue date shall be Thirty (30) days from the
date of such bill ("Due Date"). If CTC's payment is not received by such Due
Date, RCI shall have the right to immediately terminate this Agreement and/or
deny service until payment is rendered, and/or impose a late charge of one and
one-half (1.5%) per month or the highest legal rate, whichever is lower. If
payment is not received within forty-five (45) days of the bill date and/or
payment is not received within thirty (30) days on three or more occasions
under this Agreement, RCI shall have the right to demand and receive a
security deposit or Letter of Credit equal to two full months billing.
Additionally, if at any time there is a material adverse change in CTC's
credit worthiness, RCI shall have the right to immediately terminate this
Agreement and/or deny service until payment is rendered and/or request a
security deposit or retain the deposit rendered prior to turn up if
applicable, and/or impose a late charge of one and one-half percent (1.5%) per
month or the highest legal rate, whichever is lower. If there is a dispute
with any section of the bill, CTC shall pay the undisputed portion of such
bill when due, and CTC will notify RCI in writing of the disputed section ten
(10) days prior to the due date. If the dispute is resolved in RCI's favor,
CTC will pay the once-disputed amount, plus finance charges calculated from
the original due date of the disputed amount in the next billing after
resolution. If the dispute is resolved in the CTC's favor, RCI will credit
the disputed amount on CTC's bill. CTC shall pay RCI for any costs or
expenses, including reasonable attorney fees, incurred by RCI in collection of
CTC's unpaid bills. RCI shall not be obligated to consider any CTC notice of
billing discrepancies which are received by RCI more than sixty (60) days
following the Due Date of the invoice in question. Any deposit required of
CTC may be applied to CTC's overdue bills and any other expenses for which CTC
becomes liable to RCI under this Agreement. Such deposit shall not bear
interest unless required by law. CTC acknowledges and understands that RCI
computes all charges herein exclusive of any applicable federal, state or
local use, excise, gross receipts, sales and privilege taxes, duties, fees or
similar liabilities (other than general income or property taxes), whether
charges to or against RCI or CTC because of the service furnished to CTC
("Additional Charges"). CTC shall pay such Additional Charges in addition to
all other charges provided for herein.
8.3 For the purpose of this Agreement, CTC and RCI agree to the following
algorithm to determine adjustments, in the event that there is a discrepancy
between RCI and telco billing data.
(a) If the total RCI terminating billing data (all minutes of use ("MOU's")
terminated by RCI, originated by telco), is between 91.5%, +/- 2.5% of the
total telco invoice to RCI pertaining to CTC sub-CIC MOU, then the telco
invoice shall be allocated between RCI and CTC as follows:
(i) If the portion of the RCI invoice allocated to CTC's sub-CIC MOU's
("CTC Portion") is equal to 91.5%, +/- 2.5% of telco's originating billing
data, then no adjustment shall be applied.
(ii) If the CTC Portion is greater than 91.5%, +/- 2.5% of the RCI
sub-CIC invoice, then CTC will receive a corresponding debit on the RCI
invoice.
(iii) If the CTC Portion is less than 91.5%, +/- 2.5% of the RCI sub-CIC
invoice, then CTC will receive a corresponding credit on its RCI invoice.
(b) If the total RCI terminating billing data is greater or less than 91.5%,
+/- 2.5% of the total telco invoice to RCI, each party shall pay its
respective portion of the telco invoice.
For the purposes of the adjustment, when the percentage is greater than 94% or
less than 89%, the adjustment calculation will be back to 91.5%. RCI reserves
the right to review and modify the 91.5% calculation on a quarterly basis,
basing the percentage on a three month running average.
Notwithstanding the foregoing, in all events, CTC shall be responsible for
paying its portion of the telco invoice directly to telco and will receive
appropriate adjustment, as set forth above, on its RCI invoice. RCI agrees to
provide CTC a copy of the summary pages pertaining to CTC's local telephone
bill within forty eight (48) hours of receipt.
In addition, if CTC's payment to the local telephone company is not received
when due, RCI shall have the right to immediately terminate this Agreement
and/or deny service until payment is rendered and/or request an additional
security deposit or retain the deposit rendered prior-to turn up. RCI will
hold CTC liable for any unpaid balances appearing on RCI's local telephone
bill relating to the provision of service for CTC.
8.4 CTC must have available a signed Letter of Agency (LOA) for RCI from every
customer for each line ("ANI") PIC'd to RCI's feature groups. LOA format and
language must be pre-approved by RCI [or with any other means approved by the
Federal Communications Commission ("FCC") ] . A signed LOA must be available
for review by RCI and/or telco within forty eight (48) hours notice from RCI.
In the event that LOA is not made available within forty eight (48) hours, a
ten dollar ($10) surcharge for each missing LOA will be applied to the next
RCI invoice as well as any/all telco charges applied to RCI because of CTC.
CTC will provide ANI's via the IBM Information Network (IIN) or other
automated means acceptable to RCI.
8.5 In the event, RCI notices an excessive amount of internal order rejects
(i.e. inaccurate information), RCI will pass through any additional
administrative charges to CTC to recover costs. For the purpose of this
Agreement, excessive will be defined as five (5) percent.
8.6 RCI and CTC agree that RCI will allow CTC to transition their customers
from switchless resale to sub-CIC. This will only be applicable where the
local telephone supports such a billing and service arrangement and where RCI
has feature groups to originate 1+ traffic.
8.7 The 1+ and 800 rates under this Agreement are based upon RCI's projected
network cost utilizing an assumed traffic distribution. RCI agrees to review
CTC's 1+ and 800 rates after a period of six full months billing. If RCI's
actual network cost for carrying CTC's 1+ and 800 traffic varies from RCI's
network cost projection over such six month period, RCI will adjust such rates
in accordance with the variance for the remainder of the term of this
Agreement.
9. INDEPENDENT CONTRACTORS
Each party agrees that it shall perform its obligations hereunder as an
independent contractor and not as the agent, employee or servant of the other
party. Neither party nor any personnel furnished by such party shall be
deemed an employee or agent of the other party nor be entitled to any benefits
available under any plans for such other party's employees. Each party has
and hereby retains the right to exercise full control of supervision over its
own performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of all
employees assisting the performance of such obligations. Each party will be
solely responsible for all matters relating to payment of its employees
including compliance with social security taxes, withholding taxes, worker's
compensation, disability and unemployment insurance, and all other regulations
governing such matters; and each party will be responsible for its own acts
and those of its own employees, agents, and subcontractors during the
performance of that party's obligations hereunder.
10. FORCE MAJEURE
10.1 RCI shall not be liable for any delay or failure in performance of any
part of this Agreement from any cause beyond its control and without its fault
or negligence, including but not limited to, acts of God, acts of civil or
military authority, government regulations, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, strikes, power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather conditions, acts of third
parties, or acts or omissions of common carriers (collectively referred to as
"Force Majeure Conditions").
10.2 RCI shall also not be liable for any delay or performance failure caused
by CTC's failure to perform any of its obligations.
11. ASSIGNMENT
CTC may not assign any right, obligation or duty, in whole or in part, or any
other interest hereunder, except to a successor by merger or sale of all or
substantially all CTC's assets, without the prior written consent of RCI,
which shall not be unreasonably withheld or delayed. Any such proposed
assignee must at a minimum meet all RCI credit standards then in place. RCI
may assign any right, obligation or duty, in whole or in part, or any other
interest hereunder, to any of its affiliates without permission from CTC, upon
thirty (30) days notification to CTC.
12. NOTICE
All notices required under this Agreement shall be given in writing and
delivered by a nationally recognized overnight courier, postage prepaid, to
the addresses set forth below and on the next page:
To RCI: RCI Long Distance, Inc.
Rochester Tel Center
180 South Clinton Avenue
Rochester, New York 14646-0500
Attention: Vice President-Network Systems & Services
To CTC: Computer Telephone Corp.
360 Second Avenue
Waltham, Massachusetts 02154
Attention: President
13 . CONFIDENTIALITY
Any and all information pertaining to the business relationship between RCI
and CTC shall be considered confidential and proprietary in all cases for the
entire term of this Agreement. Both parties agree to not disclose any of same
to any other person, firm or entity (except a governmental or regulatory body
which shall issue a formal subpoena) and shall use same only to further the
purpose of this Agreement. This confidentiality obligation shall not apply to
any information (i) independently developed by a party, or (ii) generally
available to the public other than by a party's breach of this Agreement, or
(iii) already known by a party at time of disclosure, or (iv) rightfully
received from a third party. Both parties hereby designate the terms,
conditions, appendices, exhibits and schedules of this Agreement to be
confidential. The parties agree that the confidential and proprietary
information received pursuant to this Agreement shall be disclosed only to
those employees and other persons who have a need for its use under this
Agreement.
14. INDEMNIFICATION
Each party shall indemnify, defend and hold the other party harmless from any
and all liability, loss, claim, damage or cost (including attorney's fees) and
expenses arising out of claims against such other party by any entity as a
result of any failure of the indemnifying party to perform its obligations
hereunder. Additionally each party shall indemnify the other party against
injuries and claims of any kind, arising out of the acts or failures to act of
the indemnifying party, its directors, officers, agents, employees,
representatives or subcontractors, including without limitation injury or
damage to the person or property of CTC, its agents, employees,
representatives or subcontractors.
15. GENERAL
This Agreement constitutes the entire understanding between RCI and CTC and
supersedes any and all oral and/or written statements and representations made
by either party to the other. All parts, sections, Exhibits, and Addendum to
this Agreement shall be considered confidential in all cases for the life of
this Agreement. Any assignment or other transfer by CTC of its rights under
this Agreement without RCI's prior written consent all entitle RCI to
immediately terminate this agreement. Failure on the part of RCI to enforce
any provision of this Agreement in any one instance shall not be construed as
a general waiver or relinquishment of the right to enforce such provision. If
any provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected thereby. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute but one
and the same instrument. This Agreement shall be construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Dated :
RCI LONG DISTANCE, INC. COMPUTER TELEPHONE CORP.
/s/ Jeffrey A. Gold /s/ Philip Richer
_________________________ __________________________
(Signature) (Signature)
JEFFREY A. GOLD PHILIP RICHER
_________________________ __________________________
(Print Name) (Print Name)
VICE CHAIRMAN
__________________________ _________________________
(Title) (Title)