SERVICE BUREAU AGREEMENT
This Service Bureau Agreement (the "Agreement") is entered into as of the
18th day of May, 2005 (the "Effective Date"), by and between Connect Paging,
Inc., dba Get-A-Phone, a Texas corporation, located at 309 W. 7th Street, Suite
720, Fort Worth, Texas 76102 ("G-A-P") and Call Universal, Inc., a Texas
corporation located at 400 Chisholm Place, Plano, Texas 75075("Client").
WHEREAS, Client offers turnkey compliance and technical solutions to the
telemarketing industry, including a "Caller ID Solution" by which Client
processes "Caller ID" transactions under contracts with call centers and other
businesses; and
WHEREAS, G-A-P is a Competitive Local Exchange Carrier with experience
providing technical and back office support for businesses in the
telecommunications industry; and
WHEREAS, Client's Caller ID Solution relies on the ability to provide
pre-assigned, ten-digit numbers (also called "Direct Inward Dialed Numbers" or
"DID Numbers")
WHEREAS, G-A-P has obtained certain rights to certain DID Numbers and
Termination and Transport rights from a third party service provider (MetroTel);
and
WHEREAS, G-A-P has been providing technical support for Client's Caller ID
Solution; and
WHEREAS, Client desires to have G-A-P provide the Services (defined below)
pursuant to the terms of this Agreement.
NOW THEREFORE, G-A-P and Client, in consideration of the promises and
mutual covenants expressed in this Agreement, agree as follows:
1. Definitions.
a. "Business" means any offering of a Caller ID solution to customers,
partners, and others by Client and/or G-A-P.
b. "Caller ID" means an electronic service whereby a caller's number
and/or name is displayed.
c. "Client System" means the equipment necessary for receiving,
transporting, and terminating voice service.
d. "G-A-P System" means the equipment used to receive, transport, and
terminate voice service by G-A-P or by third parties for the benefit
of G-A-P.
2. Description of G-A-P Services. G-A-P shall be responsible for providing
the following Services:
a. Transport and Termination Services. G-A-P shall resell the following
services to Client:
i. DID Numbers. G-A-P shall provide Client with at least four
hundred (400) 10-digit phone numbers (also known as "Direct
Inward Dialed" or "DID" numbers) (the "DID Numbers"). G-A-P
shall obtain permission for Client to store DID numbers
obtained from MetroTel under Client's Master Agreement with
Accudata, Inc. (the "Accudata Agreement").
ii. Voice Termination and Transport. G-A-P shall arrange for
termination, switching, and transport for the calls received
from the DID Numbers. G-A-P shall arrange for MetroTel to
terminate calls to the DID Numbers at a MetroTel switch, which
are currently located throughout Texas.
In addition, G-A-P shall lease transport lines, which lines
shall be "DS1" (or "T1") or equivalent lines providing the
same bandwidth, channels, and functionality. Initially, G-A-P
shall lease six (6) DS1 lines; G-A-P will also obtain the
right to add or remove lines as necessary to meet G-A-P's
needs. G-A-P shall arrange for MetroTel to transport calls
received from the DID numbers from its switch(es) to the
switch(es) owned by Client utilizing voice over internet
protocols ("VoIP").
b. Billing and Revenue.
i. The parties shall cooperate on the collection and distribution
of revenues. G-A-P shall have primary responsibility for such
activities, as detailed further below. Client shall be kept
apprised of all such activities on an ongoing basis.
ii. Billing Services. Client currently bills its Customers on a
monthly basis. Beginning on the June 1, 2005, responsibility
for billing and collections shall pass to G-A-P.
iii. Further Acts. If necessary to implement the terms of this
agreement, Client shall arrange with Accudata to assign its
rights under the Accudata Agreement to G-A-P.
c. Customer Service and Call Response.
i. G-A-P shall be responsible for handling first calls from
Customers and shall make reasonable attempts to isolate any
reported problem. If after making the initial service call
G-A-P determines that the problem is not in the G-A-P System,
G-A-P shall immediately notify Client. Thereafter, G-A-P shall
provide reasonable assistance to Client to correct the
problem. G-A-P shall maintain detailed records of all reported
problems.
ii. The parties acknowledge that voice providers frequently are
asked to provide end-user information to law enforcement or
other government officials. The parties agree that G-A-P shall
have primary responsibility for receiving and responding to
requests for information by governmental authorities related
to the Business.
3. Migration of Existing Contracts. The parties intend to have all contracts
comprising the Business executed through the Accudata Agreement. Client
and G-A-P shall cooperate to ensure that all existing and prospective
customers for the Business shall be handled through the Accudata Agreement
and shall be subject to the Service Pricing provisions, below.
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4. Service Fee. The above services will be provided by G-A-P in exchange for
ten percent (10%) of the monthly gross revenues for the Business (the
"Service Fee"). G-A-P shall retain the Service Fee as the fee is
collected. The Service Fee shall begin on May 1, 2005, and continue
throughout the term of this Agreement.
5. Service Performance. G-A-P shall cooperate with Client and shall promptly
perform such things as are reasonably necessary to implement this
Agreement. G-A-P shall not be responsible for any termination or failure
in the Service resulting from any of the following causes:
a. The failure or nonperformance or any termination or suspension of
any service to G-A-P (except that which shall solely be due to the
fault of G-A-P);
b. Force majeure suspending or terminating G-A-P's performance as
provided in this Agreement;
6. Representations and Warranties of G-A-P. G-A-P represents and warrants to
Client that:
a. This Agreement has been duly authorized by all necessary corporate
action on the part of G-A-P and when executed and delivered by duly
authorized officers of G-A-p constitutes a legal, valid and binding
obligation of G-A-P;
b. G-A-P has and shall continue to have during the term of this
Agreement all necessary contractual rights to provide the Service to
Client hereunder;
c. In the event that a service provided hereunder is subject to an
underlying agreement with a supplier or vendor, G-A-P can not and
will not provide greater rights to Client than those afforded to
G-A-P; and
d. G-A-P is not aware of any contractual or other legal obligation
which shall in any way interfere with its full, prompt and complete
performance hereunder.
e. G-A-P will directly or indirectly provide G-A-P Programming to
Client Subscribers only through Client under this Agreement.
7. Representations and Warranties of Client. Client represents and warrants
to G-A-P that:
a. This Agreement has been duly authorized by all necessary corporate
action on the part of Client and has been executed and delivered by
duly authorized officers of Client and this Agreement constitutes a
legal, valid and binding obligation of Client;
b. Client has and shall continue to have during the term of this
Agreement all necessary rights to carry out the provisions of this
Agreement, including but not limited to, obtaining all necessary
contractual rights, intellectual property rights, licenses,
clearances and releases;
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c. Client's performance under this Agreement does not and shall not
violate any third party's trademark, copyright or other intellectual
property rights;
d. Client is under no contractual or other legal obligation which shall
in any way interfere with its full, prompt and complete performance
hereunder.
8. Necessary Action- At all times after the execution of this Agreement each
party hereto agrees to take or cause to be taken all such necessary action
including, without limitation, the execution and delivery of such further
instruments and documents, as may be reasonably requested by the other
party for such purposes or otherwise necessary to complete or perfect the
transactions contemplated hereby and meet the intent of this Agreement.
9. Term/Termination- This Agreement shall have an initial term of three (3)
years and shall automatically renew for successive one (1) year terms
unless either party sends written notice of an election not to renew at
least sixty (60) days before the expiration of the then current term.
Either party may terminate this Agreement prior to the expiration of the
then current term if the other party is in material breach of the
Agreement. Prior to terminating the Agreement, however, the party claiming
breach must provide thirty (30) days written notice to the allegedly
breaching party, which notice shall provide a detailed explanation of the
alleged breach and an opportunity to cure the alleged breach. If the
alleged breach is cured within such thirty (30) days, there shall be no
right to terminate the Agreement for such alleged breach.
Termination or expiration shall not relieve the Client's obligation to pay
any outstanding balance, late fees, or other charges due under this
Agreement. In addition, termination or expiration shall not effect the
Parties' obligations under Sections
10. Confidentiality- For the purposes of this Agreement, "Confidential
Information" is defined as the nature of this Agreement, the parties,
services, and prices addressed herein, as well as any other information or
documents, electronic or otherwise, disclosed by one signing party to
another in connection with this Agreement or the parties, services, or
prices herein.
Each party (the "Receiving Party") will protect and hold in confidence all
Confidential Information disclosed by the other party (the "Disclosing
Party"). The Receiving Party shall not use any Confidential Information
and will not disclose, communicate or disseminate (orally, in writing or
electronically) any Client Information to any party for any purpose other
than to fulfill its authorized obligations in connection with this
Agreement. The Receiving Party will be required to comply with these
non-disclosure and non-use obligations for the duration of the Agreement
and for two (2) years after the expiration or termination of the Agreement
for any reason. The parties acknowledge and agree that, among other
things, any non-public, written list of Customers and any strategic
information, data or documents, and any nonpublic, written, strategic
product or service descriptions shall constitute Confidential Information
for all purposes of this Agreement and under law. Any Confidential
Information will remain proprietary to the Disclosing Party and subject to
this Agreement unless otherwise confirmed in writing by the Disclosing
Party.
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11. Interference With Contracts and Non-Circumvention- During the term of this
Agreement and for two (2) years thereafter, Client will not directly or
indirectly, individually or on behalf of another, alone or in conjunction
with other parties, knowingly interfere with or seek to have a third party
terminate or not renew any contractual relationship (a) between a business
partner of Client ("Client Partner") and Client, (b) involving a Client
Partner, (c) between an employee, contractor, director, agent or
consultant of Client and Client, or (d) between Client and any provider of
products or services to Client.
12. Subordination. Client recognizes that G-A-P has entered into a Services
Agreement with James Taylor, dba MetroTel Communications (the "MetroTel
Agreement").
The parties recognize and acknowledge that G-A-P is obtaining Termination
and Transport Service and related services from MetroTel. Accordingly,
this Agreement shall be a sub-agreement subordinate to the MetroTeol
Agreement and the rights or interest of Client shall be no greater than
the rights or interest of G-A-P under such agreement. In the event that
the MetroTel Agreement is terminated, G-A-P may, at its option, terminate
this Agreement without any further obligation to Client. In the event that
G-A-P's rights or interest under the MetroTel Agreement shall be greater
than the rights or interest of Client hereunder, Client is not entitled to
any rights or interest greater than is provided in this Agreement. In the
event of any conflict between the terms and provisions of this paragraph
and the terms and provisions of any other paragraph of this Agreement,
then the terms and provisions of this paragraph shall control.
13. Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, overnight air courier
or facsimile transmission.
If to Client:
Call Universal, Inc.
400 Chisholm Place
Plano, Texas
Attention: Chief Executive Officer
Facsimile: ___________________
If to G-A-P:
Get-A-Phone
309 W. 7th Street, Suite 720
Fort Worth, Texas 76102
Attention: Byron Young
Facsimile: (888) 333-3503
with a copy (which shall not constitute notice) to:
USurf America, Inc.
390 Interlocken Crescent, Suite 900
Broomfield, CO 80021
Attention: Chief Executive Officer
Facsimile: (303) 465-3150
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And
White Field, Inc.
9800 D Topanga Canyon Blvd., #326
Chatsworth, California 91311
Attention: Steven W. Ritcheson
Facsimile: (650) 337-0383
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day
after being timely dispatched delivery prepaid, if by overnight air
courier; and when receipt acknowledged, if sent by facsimile transmission.
Any of the above addresses may be changed by notice made in accordance
with this subsection.
14. Governing Law; Forum Selection. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. BY EXECUTING THIS
AGREEMENT, EACH PARTY HERETO SUBMITS TO THE JURISDICTION OF THE COURTS OF
TEXAS SOLELY FOR PURPOSES OF ADJUDICATING ITS RIGHTS OR THE RIGHTS OF THE
OTHER PARTY WITH RESPECT TO THIS AGREEMENT. EACH PARTY HEREBY AGREES TO
ACCEPT, AT ITS OFFICE AT THE ADDRESS REFERRED TO IN SECTION 7 HEREOF,
SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING INSTITUTED BY ANY
PARTY IN THE COURTS OF THE STATE OF TEXAS WITH RESPECT TO THIS AGREEMENT.
15. Limitation on Liability. G-A-P' sole obligation under this Agreement is to
provide the Services to Client and its liability for any failure to do so
is limited exclusively to granting credits on a pro-rata basis for actual
lost transport-time or a pro-rata refund for Services prepaid and not
received. Under no circumstances will G-A-P be liable for any
compensatory, consequential, exemplary, incidental, or punitive damages
that may be alleged by Client or Client's Customers.
16. Indemnity. Client and G-A-P shall indemnify, defend and save each other
and its officers, directors and agents harmless from suits, actions,
damages, liability, losses, expenses and causes of action of every nature
whatsoever arising from or caused by any negligent or willful act or
omission by either party or its officers, agents, employees,
representatives or independent contractors in any manner connected with
this Agreement including, but not limited to, any claims, demands and
causes of action of every nature whatsoever which may be made upon,
sustained or incurred by either party by reason of any breach, violation,
omission or non-performance of any material terms, covenants or conditions
hereof on the part of either party or by reason of any negligent or
willful acts or omissions.
17. Requirements Of Law. During the term of this Agreement both parties shall
observe and comply with all present and future laws, ordinances,
requirements, orders, directions, rules and regulations of the federal,
state, county and municipal governments and of all other governmental
entities having or claiming authority over or the right to regulate
satellite communications or any other activity contemplated by this
Agreement including, but not limited to, observance and compliance with
all Federal Communications Commission requirements, orders, directions,
rules and regulations. Further, both parties hereby agree to indemnify and
hold each other harmless from any fine, penalty, expense, claim, suit,
lien, charge, cost or liability arising out of or caused by either party's
failure to comply with this provision including, but not limited to,
attorneys' fees at, before and through all trial and appellate levels and
post judgment proceedings and whether or not a lawsuit or any other
proceeding is instituted.
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18. Force Majeure. Force Majeure as referred to in Section ____ means any
failure of performance due to causes beyond G-A-P's commercially
reasonable control, including, but not limited to, sun outages, equipment
failure, rain fade, externally caused interference, irreparable satellite
component failure, fires, strikes, labor unrest, embargoes, civil
commotion, rationing or other order or requirements, acts of civil or
military authorities, acts of war, terrorism, acts of God, the
unavailability to G-A-P of the facilities or services used to provide the
Services, or other contingencies beyond the reasonable control of G-A-P.
19. Assignment; Successors. No right or obligation under this Agreement may be
assigned or delegated by either party without written consent of the
other. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
20. Remedies. The Parties expressly understand and agree that the covenants
and obligations to be rendered and performed by the Parties pursuant to
this Agreement are special, unique, and of an extraordinary character, and
in the event of any default, breach or threatened breach, the Parties
shall be entitled to such relief as may be available to it pursuant
hereto, at law or in equity, including, without limiting the generality of
the foregoing, any proceedings to: (i) obtain damages for any breach of
this Agreement; (ii) order the specific performance thereof; or (iii)
enjoin the breach of such provisions.
21. Regulatory Obligations - As between the parties, Client shall be
responsible for all legal or regulatory requirements imposed by local,
state or federal governments in connection with: (a) the Client System;
and (b) the Customers serviced under this Agreement.
22. Counterparts. This Agreement may be signed in counterpart copies, each of
which shall be deemed to be an original document, and all of which shall
together be deemed to constitute a single document. Telecopied signatures
on this Agreement shall have the force and effect of original signatures.
23. Headings. All headings have been inserted for convenience only and shall
in no way modify or restrict any of the terms or conditions hereof.
24. Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be unlawful or unenforceable in any
jurisdiction, then such provision will be enforced to the maximum extent
permissible under applicable law, and the remaining provisions of this
Agreement will remain in full force and effect.
25. Amendment; Waiver. This Agreement may not be amended or modified except by
a writing executed by Client and G-A-P. No right under this Agreement may
be waived except by a writing signed by the party waiving such right, and
no waiver of one breach of this Agreement will constitute a waiver of
subsequent breaches of the same or of a different nature.
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26. Entire Agreement. No covenants, agreements, representations or warranties
of any kind have been made by any party hereto, except as expressly set
forth herein. This Agreement constitutes the entire agreement between the
parties relating to the subject matter hereof; and all prior discussions,
negotiations, agreements and understandings, written or oral, have been
and are merged and integrated into, and superseded by, this Agreement.
27. No Presumption. This Agreement is the product of negotiation between the
parties and, in interpreting the text of this Agreement, no presumption
against the drafter of any provision may be made.
28. Confidentiality of Agreement. Each party agrees to maintain the terms of
this Agreement in strict confidence, and that it will not disclose the
terms of this Agreement to any other person, other than the parties' own
professional advisors, unless required by law. The parties expressly
acknowledge that Client is a wholly owned subsidiary of a public company
and may be required to disclose certain facts regarding this Agreement in
filings with the Securities and Exchange Commission. Notwithstanding such
obligations, Client shall use all reasonable efforts to keep the terms of
this Agreement confidential.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date
first indicated above.
CALL UNIVERSAL, INC CONNECT PAGING, DBA GET-A-PHONE
By: /s/ James Taylor By: /s/ Byron Young
---------------------- ---------------------
Name: James Taylor Name: Byron Young
Title:_____________________ Title: President
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