RESELLER AGREEMENT
This Agreement is made this 14th day of January, 2001 by and between PHONE1,
Inc. ("PHONE 1"), a corporation organized and existing under the laws of
Florida, with its principal place of business at 000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxx 00000, and Sprint ("Customer"), a corporation organized and
existing under the laws of Kansas, with its principal place of business at 0000
Xxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xx. 00000.
1. RESELLER AGREEMENT - The "Services" are described below and in Exhibit A
hereto, which is expressly incorporated herein: The payphones owned by Customer,
to which PHONE1 and Customer intend to provide the Services, are listed on
Exhibit B hereto, which is expressly incorporated herein. SPSI may delete
payphones from Exhbit B upon written notice to Phone1 without any liability. (a)
Some Services" offered under this Agreement may be offered by PHONE1 pursuant to
effective tariffs filed with the Florida Public Service Commission CFPSC") and
the Federal' Communications Commission ("FCC") ("Tariffed Services"). By the
Effective Date (defined below) of this Agreement, PHONE1 agrees to provide
Customer with true and accurate copies of any such tariffs. Orders for Tariffed
Services shall. be made in accordance with the applicable provision of the
tariffs. Tariffed Services and all other services provided hereunder are
collectively called the "Services". In the event that provisions set forth in
this Agreement differ from those set forth in the applicable federal and/or
state tariffs, the terms of this Agreement shall be deemed to waive or modify
the terms of the applicable tariff, to the extent permitted by law. (b) Subject
to the provisions hereof, Customer may use the Services for any lawful purpose
for which they are intended, provided that Customer will not use the Services so
as to knowingly interfere with or impair service over any of the facilities and
associated equipment of PHONE1, or so as to knowingly impair the privacy of any
communications over such facilities and associated equipment.
2. EFFECTIVE DATE; SERVICE DATE - (a) This Agreement shall become effective upon
execution by both parties ("Effective Date"). PHONE1 shall use reasonable
efforts, subject to the other provisions hereof, to make the Services available
by the estimated service date(s) specified In Exhibit A. If PHONE1 does not
make services available within ten days from the estimated service date(s)
specified in Exhibit A, Customer may terminate this Agreement with no
liability.(b) The term of this Agreement shall be Three (3) year ("Term"). This
Agreement will then be automatically renewed on a month-to-month term until
xxxxxx.Xxxxx provides written notice of termination.
3. FEES AND PAYMENT - (a) Recurring Charges and usage charges are set forth in
Exhibit A and described in Article 8 of this Agreement. Recurring and usage
charges will be billed in arrears on a monthly basis in electronic format,
including CDR detail for each call, destination number, and minutes. Any
undisputed amount not received within thirty (30) days of the date of the
Customer's receipt of each invoice will be subject to PHONE1's standard late
charge of 1-1/2% per month (unless prohibited by law, in which case the late
charge will be the maximum permitted by law). Customer waives any dispute in
connection with the validity of any invoiced amount unless Customer notifies
PHONE1 of any discrepancies within 30 days of discovery by submitting detailed
evidence of the disputed amount, which shall include Call Detail Record
verification. Customer shall not be entitled to any credit for any claimed
billing errors that are not raised within 1 year after termination of this
agreement. (b) Customer agrees to pay any sales, gross receipts, use, excise, or
other local, state and federal taxes or charges, however designated (excluding
taxes on PHONEI's net income), imposed on or based upon provision, sale or use
of the Services provided under this Agreement; (c) The parties understand that
Customer does not waive its entitlement to any dial around compensation not
directly related to the Services described in this paragraph.
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4. OTHER CARRIERS. PHONE1 shall have no responsibility with respect to xxxxxxxx,
charges or disputes related to services used by Customer, which are not included
in the Services herein. Customer shall be fully responsible for the payment of
any bills for such services and for the resolution of any disputes or
discrepancies with the service provider.
5 CUSTOMER RESPONSIBILITY FOR CHARGES -Customer shall be responsible to pay
PHONE1 for all undisputed charges for Services provided through its payphones
under this Agreement; provided however, Customer shall not be responsible for
fraud committed by the end user with respect to the Services under this
Agreement. In the event that Customer in good faith believes that any charges
are for Services fraudulently obtained by a customer or patron, Customer shall,
within the time specified in Article 3, above, provide PHONE1 with the facts in
support of such contention and, the claim will be considered based upon the
Customer's providing clear and accurate Call Detail documentation supporting
said claim. Customer may contest PHONE1's determination regarding the
occurrence and/or prevention of fraud under the preceding sentence, and if the
matter is not resolved to the mutual satisfaction of PHONEI and Customer, the
Parties agree to use the dispute resolution section of this Agreement.
6. MAINTENANCE -, (a) PHONE1 shall perform diagnostic or troubleshooting
maintenance services, throughout the Term of this Agreement, with respect to the
Services provided hereunder, by telephone. (b) No later than the Effective Date,
PHONE1 shall provide Customer with a user programming guide. (c) PHONE1 shall
also provide prompt telephonic technical support for issues related to
programming. (d) PHONE1 shall, if It determines appropriate, and with Customer's
consent, render support and assistance to Customer in connection with such
programming through on-site visitation. (e) PHONE1 shall have no responsibility
for maintenance and repair of any kind with xxxxxxx.xx equipment and facilities
not provided by PHONEI. PHONEI will assess Customer its standard charges for any
maintenance visits with respect to Service problems which are determined to be
caused by equipment or facilities not provided by PHONE1. (f) Unless accompanied
by an authorized Customer representative, in no event shall PHONE1 open,
manipulate, or otherwise physically. access Customer's payphone equipment.
7. ADDITIONAL CUSTOMER OBLIGATIONS - (a) Upon reasonable notice from PHONE1
Customer is responsible for arranging access to the payphone premises at any
reasonable time. (b) Customer shall provide PHONE1 with a current list of
payphone locations and accurate information on ANIs in two formats: (a) paper
excel copy, which will be used as part of Exhibit B, and (b) in electronic excel
format. Both formats shall list the ANI numbers together with applicable area
codes, the location name, the street address, the city, the state, the zip code,
and the make and model of circuit boards in the specific ANIs. (c) In no event
later than the date of installation of the PHONE1 handset, Customer will install
and maintain, in each payphone to which Service is provided under this
Agreement, circuit boards which will,enable the programming of PHONE1's rate
tables into the payphone, to PHONE1's reasonable satisfaction. (d) Customer
shall be responsible for properly and promptly programming rate tables into each
payphone. (e) For a period of two years after termination of this Agfeement for
any reason, Customer will not use yellow colored handsets at its payphones.
8. PHONE1'S EQUIPMENT - (a) PHONEI is the sole provider of its handsets and
eproms, therefore, replacements of such equipment and other technology as listed
on Exhibit C hereto, which is expressly incorporated herein (the "Accessories")
will be at the expense of the Customer based upon such Exhibit. [*], Customer
shall either purchase or lease any and all additional Accessories, at such
prices and pursuant to such terms and conditions as mutually agreed upon in
writing. Customer shall promptly 'upon receipt of the Accessories from PHONE1
install the Accessories and shall be responsible for their installation and
maintenance. PHONE1 shall, if it determines appropriate after consultation with
Customer, render support and assistance to Customer in connection with such
installation.
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(b) Phone1 hereby assumes full cost of transportation of the Accessories. Phone1
will pay full cost of transit insurance, if any; for these shipments. Risk of
loss will pass to SPSI upon receipt of the Accessories. (c) Upon termination (by
expiration or otherwise) of this Agreement, SPSI will return the Accessories in
the same condition as when received normal wear and tear excepted within 60 days
of termination. SPSI will arrange for and pay the cost of de-installation of the
Accessories including rigging, drayage, packing and crating. SPSI will arrange
and pay for return shipment of the Accessories to 000 X. Xxxxxxxx Xxxx. 00
Xxxxx, Xxxxx, Xx. 00000.
9. LIMITATIONS OF LIABILITY
(a) Liability for Service Interruptions - Except for liability in connection
with fraudulent charges, if any part or portion of the Services is unavailable,
interrupted, degraded or otherwise unsatisfactory for any reason, PHONE1 and
Customer agree that neither PHONE1 nor its agents shall have any liability other
than for refund by PHONE1 of amounts paid by Customer for Services which do not
meet the standard of a reasonable telecommunications carrier. If any of the
payphones covered by this Agreement are temporarily out of service for any
reason, Customer shall not have any liability to PHONE1 for failure to purchase
Services for such payphones during, such period of temporary unavailability;
provided, however, Customer shall make commercially reasonable efforts to
restore in a timely manner out of service payphones.
(b) Liability for Damages to Property - Neither PHONE1 nor its agents shall be
liable for any damages whatsoever to properly at any Customer premises resulting
from the installation, maintenance, repair or removal of equipment and
associated wiring unless the damage is caused by PHONE1's or its agent's willful
misconduct or negligence. Neither Customer nor its agents shall be liable for
any. damages whatsoever to the Accessories at any Customer premises resulting
from the installation, maintenance, repair, or removal of the Accessories and'
associated wiring in accordance with PHONE1's instructions unless the damage is
caused by Customer's or its agent's willful misconduct or negligence.
(c) Liability for Services and Equipment Not Provided by PHONE1 -Neither PHONE1
nor its agents shall be liable for any damages whatsoever associated with
services, channels, or equipment which they do not furnish or for any act or
omission of any person, other than PHONEI or its agents, furnishing to Customer
facilities or Accessories used for or with the Services.
(d) Liability for Force of Nature Events - Neither party nor their agents shall
be liable for any failure of performance under this Agreement for reasons beyond
their reasonable control including casualty, condemnation or loss of
rights-of-way, and acts of God.
(e) Liability Regarding Governmental Authorization - (i) The parties shall be
entitled to take and shall have no liability for any action necessary, including
termination, to bring their respective performance under this Agreement into
conformance with any governmental regulations or authorizations, and each party
shall fully cooperate in and take such action as may reasonably be requested by
the other as part of each compliance. (ii) This Agreement may be terminated by
either party upon written notice if the Federal Communications Commission, a
State Public Utilities Commission or a court of competent jurisdiction issues an
order or ruling which contains terms or conditions that materially and adversely
affect this Agreement, its profitability, or the ability of either party to
perform their obligations as set forth in the Agreement Termination of this
Agreement. under this paragraph will not give either party any right to seek
damages from the other as long as both parties comply with their obligations up
to the date of termination.
(f) No Special Damages - In no event shall either Party, or its respective
agents, be liable to the other in contract, tort, or otherwise for loss, whether
direct or indirect, of profits, business, anticipated savings, or goodwill, or
for any special, consequential, incidental, exemplary or
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punitive damages as a result of this contract.
(g) Liability Cap -In no event shall PHONE1's and its agents' collective
liability under this Agreement exceed amounts received by PHONE1 from Customer
for Services under this Agreement. In no event. shall PHONE1's and its agents'
collective liability for any event exceed artiounts received by PHONE1 from
Customer in the twelve-month period immediately preceding the event giving rise
to such liability for Services under this Agreement. In no event shall
Customer's and its agents' collective liability under this Agreement exceed
amounts billed by PHONE1 from Customer for Services under this Agreement The
above Liability Cap shall not apply to PHONE 1's Indemnification for end-user
fraud.
10. INDEMNIFICATION
(a) PHONE1's Indemnification - PHONE1 and its agents shall be indemnified,
defended and held harmless by Customer against all claims, suits, proceedings,
expenses, losses, liabilities, or damages (collectively "Claims") arising from
the use of Services. pursuant to this Agreement involving: (a) Claims for patent
infringement arising from combining or using any Services, facilities or
equipment fumished pursuant to this Agreement in connection or in combination
with facilities or equipment not furnished by PHONE1; (b) fees, fines, or other
liabilities imposed by any governmental entity, arising out of, resulting from,
or related to the Customer's resale or attempted resale of the Services; and (c)
all claims arising out of any act or omission of Customer, or customers or
patrons of Customer, in connection with the Services made available to Customer
under the terms of this Agreement. Customer agrees to defend PHONE1 and its
agents against any such Claim and to pay, without limitation, all litigation
costs, reasonable attorneys' fees and court costs, settlement payments, and any
damages awarded or resulting from any such Claim.
(b) Customer's Indemnification - Customer and its agents shall be indemnified,
defended and held harmless by PHONE1 against all claims, suits, proceedings,
expenses, losses, liabilities, or damages (collectively "Claims") involving: (a)
fees, fines, or other liabilities imposed by any governmental entity arising
from the procedure In which Services under this Agreement are sold by PHONE1 to
Customer; (b) all claims arising out of any end-user fraud in connection with
the Services; and, (c) all claims arising out of any act or omission of PHONE1
or its agents, In connection with the Services made available to Customer under
the terms of this Agreement. PHONE1 agrees to defend Customer and its agents
against any such Claim and to pay, without limitation, all litigation costs,
reasonable attorneys' fees and court costs, settlement payments, and any damages
awarded or resulting from any such Claim.
11. PRICING; MARGIN - Customer shall be billed for usage charges as described in
Article 3 of this Agreement and according to the rates stated in Exhibit A
(Payphone Rate). Customer shall resell the Services at the prices stated in
Exhibit A. Customer Margins shall be [*] [*%] Percent, or [*] ($[*]) cents. For
this purpose, Customer Margins are:defined as the difference between the SRP and
Payphone Owner Cost CPOC"), as set forth in Exhibit A.
12. DEFAULT (a) If Customer (i) fails to pay any undisputed amount required
under this Agreement and such failure continues after written notice to Customer
that the same is due and payable, (ii) enters or is placed in bankruptcy or
insolvency proceedings of any nature, or makes a general assignment for benefit
of creditors, or (iii) commits a material breach of this Agreement and such
noncompliance continues for 30 days after written notice to the Customer
thereof, then PHONE1 at its sole option may elect to pursue one or more of the
following courses of action; (1) terminate this Agreement whereupon in addition
to all sums due and payable, (2) take appropriate action to enforce payment
including suspension of any or all Services (3) pursue any other remedies,
subject to Article 20, as may be provided by law or in equity. (b) If PHONE1
commits a material breach of this Agreement and such noncompliance
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continues for 30 days after written notice to Phone1 thereof, then customer at
its sale option may elect to pursue one or more of the following courses of
action: (i) terminate this Agreement; (ii) pursue any other remedies, subject to
Article 20, as may be provided by law or in equity.
13. TERMINATION - (a) PHONE1 may, upon 30 days written notice, terminate this
Agreement without liability, and Customer's payment obligation will be
apportioned, if the facilities used to provide service are no longer available
to PHONEI due to changes to or, termination of the agreement between PHONE1
and the underlying providLor. (b) PHONE1 may terminate this Agreement, or
Service to any one or more payphones of Customer, without liability, in the
event end user complaints concerning Customer payphone equipment are not
corrected within 15 day written notice by PHONE1 to Customer.
14. ASSIGNMENT - This Agreement is not assignable in whole by either Party
without the prior written consent, which consent shall not be unreasonably
withheld; provided, however, that either Party may assign this Agreement to a
subsidiary or affiriate of such subsidiary or affiliate (1) agrees in writing,
to be bound by the terms of this Agreement; and (ii) provides the other Party
with any and all evidence of its compliance with the terms hereof.
15. WARRANTIES - (a) PHONE1 warrants that the quality of the Services shall be
equal to that of services provided by a reasonably competent telecommunications
operator. In the event that Customer believes that the Services do not meet
this standard, Customer shall promptly provide written notice of its belief to
PHONE1. PHONE1 shall; within ten (10) days, commence commercially reasonable
efforts to cure any failure of the Services to meet this standard. (b) PHONE1
MAKES NO AGREEMENTS REGARDING THE SERVICES, WARRANTIES, OR REPRESENTATIONS,
EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR
OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN. (c) Phone1 warrants and
represents that the Accessories are the sole and exclusive property of Phone1
and is not subject to any lien, claim or encumbrance inconsistent with any of
SPSI's righfs under this Agreement and that SPSI is entitled to, and shall be
able to enjoy, quiet possession and use of the Accessories during the term of
this Agreement, without interruption by Phone1 nor any assignee of Phone1.
16. END USER REFUNDS - In the event that PHONE1 - determines that a customer or
patron of Customer has been incorrectly charged by Customer for any call in
connection with the Services and in the event Customer agrees with PHONE1's
determination, PHONE1 may refund such charge to such customer or patron. PHONE1
and Customer shall use reasonable evidence, including Call Detail verification,
to determine whether a customer or patron of Customer has been incorrectly
charged.
17. MISCELLANEOUS - (a) PHONE1 and Customer shall be independent contractors.
(b) This Agreement is for the sole benefit of the parties hereto and shall not
be deemed or construed as in any way creating or conferring any rights on third
parties. (c) This Agreement may be modified, waived or amended only by a prior
written instrument signed by the party against which enforcement thereof is
sought, shall be binding upon the parties' respective successors and assigns,
and, except for the separate Accessories Agreement described in Article 8
previously executed by the parties, constitutes the entire agreement between
PHONE1 and Customer with respect to the subject matter hereof. (d) The rights
and obligations of the parties under this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida,
without regard to conflicts of law principles. (e) This Agreement may be
executed in one or more counterparts, each of which will be deemed to be an
original copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
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18. DISPUTE RESOLUTION (a) In the event of any dispute between the Parties
relating to or arising out of any provision of this Agreement, the
representatives of the parties shall meet promptly In a good faith effort to
resolve the dispute extrajudicially. The representatives shall be senior
executive officers who have authority to resolve the dispute. The disputing
party shall arrange for the meeting at a time and place mutually acceptable to
both parties. Prior to the meeting, the disputing party shall deliver to the
other party a written summary of the dispute and evidence and arguments
substantiating its dispute. (b) If the dispute is not resolved as a result of
such meeting, it will be finally settled by arbitration in accordance with the
rules of the American Arbitration Association applying the substantive law of
Kansas without regard to any conflict of laws provision. The arbitration will be
governed by the United States Arbitration Act, 9 U.S.C. section 1 et seq., and
judgment upon the award rendered by the arbitrator(s) may be entered by any
court with jurisdiction. The arbitration will be held in the Kansas City,
Missouri metropolitan area. The arbitrator(s) are not empowered to award
damages in excess of compensatory damages and each party waives any damages in
excess of, compensatory damages except in the event of end-user fraud.
19. NOTICES - All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed given to a party when (a)
delivered to the appropriate address by hand or by nationally recognized
ovemight courier (costs prepaid); (b) sent by facsimile with confirmation of
transmission by the transmitting equipment; or (c) received or rejected by the
addressee, if sent by certified mail, retum receipt requested; in each case to
the addresses specified in the preamble to this Agreement,and marked to the
attention of the individual executing this Agreement, or to such other address,
facsimile, or individual as a party may designate by notice to the other party.
20. CONFIDENTIALITY - (A). All information which is disclosed by one party
("Disclosing Party"), to the other ("Recipient") in connection with this
Agreement is to be confidential ("Confidential Information") and shall be
subject to confidential treatment the parties agree that, this Agreement,
including exhibits, shall be considered Confidential information of both
parties. Each party's Confidential Information shall, for a period of 2 years
following its disclosure: (a) be held in confidence by the Recipient; (b) be
used by the Recipient only for purposes of performing this Agreement and using
the Services; and, (c) not be disclosed except to the Recipient's employees,
agents and contractors having a need to know. (B) Recipient shall have no
obligation to safeguard Confidential Information: (a) which was in the
Recipient's possession free of restriction prior to its receipt from Disclosing
Party, (b) which becomes publicly known or available through no breach of this
Agreement by Recipient, (c) which is rightfully acquired by Recipient free of
restrictions on its Disclosure, or (d) which is independently developed by
personnel of Recipient to whom the Disclosing Party's Confidential Information
had not been previously disclosed. (C) Recipient may disclose Confidential
Information if required by law, a court, or governmental agency,. provided that
Disclosing Party has been notified of the requirement promptly after Recipient
becomes aware of the requirement, and provided that Recipient undertakes all
lawful measures to avoid disclosing such information until Disclosing Party has
had reasonable time to obtain a protective order. Recipient agrees to comply
with any protective order that covers the Confidential Information to be
disclosed. (D) Each Party agrees that in the event of a breach of this Section
23 by Recipient or its representatives, Disclosing Party shall be entitled to
equitable relief, including injunctive relief and specific perfon-xxxxx. Such
remedies shall not be exclusive, but shall be in addition to all other remedies
available at law or in equity. (E) Unless otherwise agreed, neither Party shall
publish or use the other Party's logo, trademark, service xxxx, name, language,
pictures, symbols or words from which the other Party's name may reasonably be
inferred or implied in any product, service, advertisement, promotion, or any
other publicity matter. This section shall confer no rights on a Party to the
service marks, trademarks and trade names owned or used in connection with
services by the other Party or its Affiliates, except as expressly permitted by
the other Party. (F) Neither Party shall produce, publish, or distribute any
press release nor other
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publicity referring to the other Party or its Affiliates, or referring to this
Agreement, without the prior written approval of the other Party. Each party
shall obtain the other Party's prior approval before discussing this Agreement
any press or media interviews. In no event shall either Party mischaracterize
the contents of this Agreement in any public statement or in any representation
to a governmental entliy or member thereof.
PHONE1, INC.
By: /s/ Xxxxx Xxxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxxx
Title: President
Facsimile: (000) 000-0000
Sprint
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx Xxxxx
Title: Vice President - Sprint Payphone Services, Inc.
Facsimile: 000-000-0000
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PHONE1 LOGO
000 Xxxxx Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Ph: 305-371-3300 * Fx: 000-000-0000
Phone1 Payphone Service Amendment 1
Phone1 agrees to increase the payphone commission cmnatly being paid to Sprint
based on the existing contract signed and dated by both parties.
Current Commission Plan New Commission Plan
International Usage [*%] [*%]
Domestic Usage [*%] [*%](unchanged)
IN WITNESS WJEREOF, the parties have executed this "Service Amendment" as of
the date indicated below.
Sprint Payphone Services, Inc. Phone1
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxx Xxxxxxx
------------------ ---------------
Print Name: Xxxx Xxxxxxxxx Print Name: Xxx Xxxxxxx
-------------- -----------
Title: Director-Public Access Services Title: V.P. Carrier Relations
Date: 5/27/02 Date: 06-25-02
This Agreement is not binding unless and until accepted by both parties
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