SENT PAID SERVICES AGREEMENT FROM SBC PAY PHONES
BETWEEN SBC SERVICES, INC. AND PHONE1, INC.
THIS SERVICES AGREEMENT ("Agreement") is entered into as of December 10,
2002 between Phone1, Inc., with offices at 000 X. Xxxxxxxx Xxxx., 00xx Xxxxx,
Xxxxx, Xxxxxxx, 00000 ("Phone1") and SBC Services, Inc., as agent for one or
more of the following depending upon the state(s) in which SBC provides pay
telephone services pursuant to this Agreement: SBC Pacific Xxxx Telephone
Company, a California corporation; SBC Nevada Xxxx Telephone Company, a Nevada
corporation; Southwestern Xxxx Telephone, L.P., a limited partnership under the
laws of the state of Texas providing pay phone service in the states of Texas,
Missouri, Kansas, Arkansas, and Oklahoma; SBC Ameritech Illinois, an Illinois
corporation; SBC Ameritech Indiana, an Indiana corporation; SBC Ameritech
Michigan, a Michigan corporation; SBC Ameritech Ohio, an Ohio corporation;
Wisconsin Xxxx, Inc., d/b/a SBC Ameritech Wisconsin, a Wisconsin corporation;
and SNET America, Inc., a Connecticut corporation (referred to collectively or
individually as "SBC"), with offices at 000 Xxxxxxxxxx Xxxxxx, Xxxx 00-X-00, Xxx
Xxxxxxx, Xxxxx 00000. The signatories to this Agreement shall hereafter be
referred to individually as "Party" or jointly as the "Parties".
WHEREAS, SBC is in the business of providing public pay telephone service
within the meaning of Section 276 of the Telecommunications Act of 1996 from
payphones owned and operated by SBC; and
WHEREAS, Phone1 is in the business of providing coin calling services
(excluding local exchange) from public pay telephones; and
WHEREAS, Phone1 and SBC have entered into a Services Trial Agreement dated
June 26, 2002 ("Trial") in order to trial Phone1's services; and
WHEREAS, as a result of the aforementioned Trial, SBC and Phone1 have
agreed to deploy Phone1's services operationally across SBC's operating
territory at selected sites.
NOW THEREFORE, in consideration of the mutual obligations set forth herein,
Phone1 and SBC agree as follows:
1. SCOPE OF SERVICES
A. This Agreement sets forth the terms and conditions whereby Phone1's
coin pay phone services, including interLATA domestic long distance,
and (interLATA) international long distance coin service shall be
deployed on SBC owned and operated pay telephones located at specific
sites designated by SBC ("Services"). Such locations shall be those
pursuant to separate service agreements between SBC and third parties
who own or control the premises where said SBC pay telephones are
placed ("Locations"). The pay telephone numbers and physical addresses
of the SBC pay telephones where Phone1 Services are to be provided
shall be determined by SBC in its sole discretion, transmitted to
Phone1 via an electronic data feed provided, and the initial numbers
and addresses are identified in Exhibit A, which is attached hereto
and incorporated by reference herein. Exhibit A may be updated by SBC
on an on-going basis, via additional data feeds on a periodic basis as
determined by SBC.
B. Phone1 Services deployed on SBC pay telephones shall allow consumers
to make domestic interLATA long distance calls and international long
distance calls anywhere in the world at the rates set forth in Section
5, CALLING RATES. . In exchange for the opportunity to solicit
Phone1's Services on SBC's public pay telephones, Phone1 shall
compensate SBC by paying SBC a commission equal to a percentage of the
revenues derived from the Services at the rates set forth in Section
6, COMPENSATION. For the SBC pay telephones covered by this Agreement,
local exchange pay telephone service shall be provided by SBC, and
shall not be included in the Services described herein, nor shall such
local exchange service be a part of the financial terms of this
Agreement. Phone1 shall also be responsible for all aspects of its
Services, including but not limited to, to the extent set forth in
greater detail herein, marketing and promoting the Services, providing
call capability at specific "Dumb Set" (as defined below) pay
telephones, providing the identifiable Phone1 handsets, and compliance
with all laws and regulations applicable to the Services provided by
Phone1.
C. To the extent SBC becomes authorized use the Phone1 service for their
intraLATA domestic service then intraLATA service shall be with in the
meaning of the term Services under this Agreement.
D. [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
2. TERM OF AGREEMENT
The initial term of this Agreement shall commence on the date last signed
below ("Effective Date") and, subject to the terms and conditions of this
Agreement, shall expire three (3) years (i) from the date of SBC's acceptance of
the Dumb Set Upgrade (as hereinafter defined), as contemplated by Section 7,
provided such acceptance occurs within [CONFIDENTIAL INFORMATION HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2] of the Effective Date, or (ii) from the Effective Date
if no such acceptance has occurred within [CONFIDENTIAL INFORMATION HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2] of the Effective Date ("Initial Term"). Unless either
Party provides written notice of termination to the other via certified mail,
return receipt requested, no less than thirty (30) days prior to the expiration
of the Initial Term of this Agreement, or any subsequent Renewal Term(s) of this
Agreement, this Agreement will automatically renew for up to three (3)
consecutive one (1) year renewal terms (individually, "Renewal Term").
3. OBLIGATIONS OF PHONE1
A. [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
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B. Without regard to legal and/or regulatory issues or other technical
issues, in order for the Phone1 Service to operate from SBC public pay
telephones, the SBC public pay telephones must be electronically
linked to the Phone1 platform for call routing and processing. For the
SBC pay telephones listed in Exhibit A which are identified as
standard SBC Western Electric type public pay telephones ("Dumb
Sets"), it is contemplated that Phone1 shall provide an "upgrade
solution" for all such public pay telephones to enable the public pay
telephones to interface with the Phone1 platform for accurate call
processing ("Upgrade" or "Dumb Set Upgrade"), and such Upgrade shall
be available for the Upgrade Acceptance Trial pursuant to Section 7
within [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2].
The Parties shall mutually agree upon the logistics for Phone1's
providing Upgrades to SBC for the Acceptance Trial and, following
acceptance, if accepted by SBC, for installation in the remaining SBC
public pay telephones. Phone1's Upgrade solution shall be subject to
the Upgrade Acceptance Trial terms set forth in Section 7 herein
including the capability to count completed local calls and coin
detail information of all intraLATA and interLATA (domestic and
international) calls. Except as otherwise set forth in this Agreement,
any parts, materials or labor required for such Upgrade shall be
provided to SBC at Phone1's expense. [CONFIDENTIAL INFORMATION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2]
C. Call Detail Reports. As set forth herein, Phone1 shall collect and
record, on a per call basis, the call detail information pertaining to
calls that are covered by this Agreement and made from SBC's pay
telephones ("Call Detail Records"). Phone1 shall collect and store the
Call Detail Records in redundant media until the Call Detail Records
are transmitted to SBC, and successful transmission and receipt has
been confirmed, as set forth in Section 6 herein. Phone1 shall forward
to SBC on a weekly basis, or on a daily basis if requested by SBC, all
Call Detail Records for the prior week or day, as applicable, as well
as all those Call Detail Records not previously forwarded successfully
to SBC. Phone1 shall transmit the Call Detail Records in a mutually
agreeable electronic format. The specifications for the electronic
format at the Effective Date are attached hereto as Exhibit D. These
specifications may be modified by written agreement of the Parties
from time to time. Phone1 shall be solely responsible for the accuracy
and completeness of the Call Detail Records provided to SBC as set
forth herein. SBC shall have the right to audit Phone1's Call Detail
Records according to the terms and conditions as set forth in the
RECORDS and AUDITS clause of this Agreement.
D. Promotion and Marketing. Phone1 shall provide SBC in sufficient
mutually agreeable quantities with multi-lingual adhesive placards
("Placards"), instruction cards ("Instruction Cards"), and lower
housing door plates ("Door Plates") advertising the Phone1 Services.
Placards, Instruction Cards and Door Plates to be placed on the public
pay telephone set shall be designed by Phone1 to be complimentary with
the Handsets and SBC pay telephones. Metal placards shall be
approximately 13/4" width by 31/2" in height, of aluminum
construction, and use Scotch 468MP high performance adhesive,
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Instruction Cards shall be manufactured based on SBC standard
instruction card specifications, and Doorplates shall be replacement
units that meet SBC's standard door plate specifications and that are
field-ready to install. In addition, Phone1 shall provide and larger
advertising ("Panels") to be placed on certain SBC peripheral
equipment (such as enclosures), the size and content of which shall be
mutually agreed to by both parties promptly following execution of
this Agreement. Placards, Instruction Cards, and Door Plates shall set
forth dialing instructions, required legal or regulatory information,
and other necessary information required by the consumer to use the
Services. Phone1 shall design and format the content of the Phone1
Placards; provided, however, SBC shall have a right to consent to the
design and content prior to the Placard being placed on SBC's pay
telephones, such consent not to be unreasonably withheld or delayed.
Phone1 shall use its commercially reasonable best efforts to promote
the Phone1 Services through other mass media such as television,
outdoor, print, and radio advertisements. (Phone1's Handsets,
Upgrades, Placards, Instruction Cards, Door Plates, and Panels shall
be referred to jointly in this Agreement as "Equipment".)
4. OBLIGATIONS OF SBC
A. Subject to i) the ability of SBC to secure agreements to install the
Phone1 Services at the Locations, and ii) the success of Phone1's
Upgrade Solution as set forth herein, SBC shall use its best efforts
to target use of the Services on approximately two-hundred thousand
(200,000) public pay telephone stations.
B. SBC shall have the sole right and responsibility to negotiate
placement agreements with its premise customers for the operation of
public telephones at the Locations. All such agreements shall be by
and between SBC and the Locations. Any payments due to Locations as a
result of SBC's agreements with Locations for calls made from the SBC
public pay telephones shall be the sole responsibility of SBC.
C. SBC shall be responsible for the accurate and timely payment to Phone1
of Phone1's revenues for the calls covered by this Agreement, as set
forth Section 6 herein.
D. SBC shall install and maintain its public pay telephone equipment in
accordance with its service agreements with its premise customers at
the Locations.
E. SBC shall be responsible, at its expense, for the installation,
cleaning, and removal of the Phone1 Equipment. SBC shall, in
accordance with a commercially reasonable standard, (i) install and
provide general maintenance to the Equipment and public pay telephone
equipment throughout the term of this Agreement, and (ii) remove and
return any worn or faulty Equipment to Phone1 that require
replacement.
F. SBC shall be responsible, at its expense, for installing the Upgrade
solution to SBC's public pay telephones for the Acceptance Trial (as
described below) and, if accepted by SBC, for installation in the
remaining SBC public pay telephones. SBC shall use reasonable efforts
to keep Phone1 apprised of its progress with installing Upgrades. In
the event that the Parties mutually agree that an accelerated
installation schedule would be necessary or beneficial and would
contribute to the success of the rollout of the Services, the Parties
shall share equally in any reasonable excess expenses, i.e., overtime,
priority shipment, etc.
G. Customer service for coin refund requests shall be handled by SBC
according to its standard process. Requests for refunds related to
Phone1 Services shall be investigated in the same manner and with the
same resources as SBC investigates requests for refunds related to
other services (such as local calls) offered from its pay telephones,
and SBC shall maintain reasonable documentation to support its
resolution of any refund request related to Phone1 Services. Any
refund paid by SBC as a result of an attempted Phone1 call shall be
subsequently settled by an offset to the amounts paid to Phone1
pursuant to Section 6, COMPENSATION. Any reasonably requested
documentation for such offset shall be provided to Phone1 upon
request.
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5. CALLING RATES
SBC agrees to utilize the Phone1 Services for intraLATA if applicable (see
1.C.), domestic long distance (both intrastate and interstate), and
international interLATA long distance calls, so long as such Services are
advertised as and offered under this Agreement at a suggested retail price
of [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2] per call for a
set number of domestic initial minutes and [CONFIDENTIAL INFORMATION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2] for international minutes, which number
of initial minutes shall vary depending on the origin and destination of
the call and which initial number of minutes shall be determined by Phone1.
Phone1 shall also offer additional minutes at commercially reasonable
prices not to exceed [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2] per minute domestic, but which shall be determined by Phone1. For
the public pay telephones covered by this Agreement, Phone1 agrees to give
SBC prior notification of any changes in the prices charged for Services,
including but not limited to the price charged for an initial set of
minutes and any additional minute(s).
6. COMPENSATION
A. Commissions
At the beginning of each calendar week (each Monday), or on a more frequent
basis as determined solely by SBC (but not more frequently than daily), Phone1
shall forward to SBC an electronic data feed containing the Call Detail Records
of all completed Phone1 calls made during the prior calendar week (Monday
through Sunday), or if received on a daily basis, during the previous day, and
any other calls not previously forwarded, broken down between call types. SBC
shall acknowledge receipt of the Call Detail Records and confirm the total
numbers for each call type, which Phone1 shall use to determine if the success
of the data transmission. Unless agreed to otherwise by the Parties, if the
beginning of a calendar week falls on a holiday (defined as a day the federal
government is closed), Phone1 shall forward to SBC the Call Detail Records on
the next business day (Tuesday) of all Phone1 calls made during the prior
calendar week or day, as applicable.
On the first Monday of each calendar month, Phone1 shall, along with
transmitting the Call Detail Records for the previous week, invoice SBC for the
Phone1 calls made during the entire previous calendar month. SBC shall pay to
Phone1 the revenues generated from the Phone1 calls ("Gross Receipts"), less
commissions owed by Phone1 to SBC calculated as a percentage of the revenues
according to the following schedule ("Net Receipts"):
SBC COMMISSIONS
---------------
DOMESTIC LONG DISTANCE Attachment A
INTERNATIONAL LONG DISTANCE Attachment B
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
B. Dial-Around Waiver. SBC understands that Phone1's provision of the
Services may utilize a toll-free 1-800 subscriber or access number or numbers.
In further consideration of the Services, SBC hereby agrees to waive its
entitlement, if any, to federally mandated dial-around compensation for calls to
such toll-free subscriber or access 1-800 number(s) for the term of this
Agreement. The Parties understand that SBC does not waive its entitlement to any
dial-around compensation not directly related to Phone1's provisioning of the
Services as described in this paragraph. For purposes of this paragraph,
Phone1's provisioning of Services shall encompass the completing of what appear
to the consumer to be direct-dialed or 1+ long distance calls (that is, if a
phone user physically dials a 1-800 number, other than to Phone1 Customer
Service, then the waiver contained in this paragraph shall not apply).
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7. UPGRADE ACCEPTANCE TEST
A. Phone1's Dumb Set Upgrade solution shall be approved and accepted
by [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 24b-2] (or other mutually agreed to engineering firm)
prior to installation on SBC's public pay telephones. Upon
installation of the Upgrades on all of the SBC public pay
telephones identified as Test Phones in Exhibit A (which shall be
limited to one thousand (1,000) Test Phones), SBC shall commence
an acceptance trial ("Acceptance Trial"). The Acceptance Trial
shall be for a period of thirty (30) business days, unless a
different duration is agreed to by both Parties, and shall be
conducted under the same terms and conditions as this Agreement.
During the Acceptance Trial, SBC shall operate the Services to
test the Upgrade as it deems appropriate to determine whether the
Upgrade performs in conformance with SBC's specifications, as set
forth in Exhibit E, which is attached hereto and incorporated by
reference herein. In addition to the tests included in Exhibit E,
SBC will complete testing of the coin counting and validation
application of the Dumb Set Upgrade during both the [CONFIDENTIAL
INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]testing
review and the Acceptance Trial. SBC's use of the Services for
commercial purposes during the Acceptance Trial shall not
constitute acceptance of the Upgrade. If the Upgrade passes the
Acceptance Trial, SBC shall "accept" the Upgrade by providing
Phone1 with written notice of such acceptance no later then
thirty (30) business days after the conclusion of the acceptance
trial. Upon acceptance, the Parties shall mutually agree upon a
schedule for installing the Upgrade in SBC's public pay
telephones not identified as Test Phones in Exhibit A (except for
those identified as "Smart Sets" for which the Upgrade is not
necessary). SBC's determination as to whether or not to accept
the Upgrade shall be made in SBC's sole discretion, but shall not
be unreasonably withheld or delayed.
B. If the Upgrade fails to pass the Acceptance Trial, SBC may:
i. agree with Phone1 to extend the Acceptance Trial for a specific
time frame to enable Phone1 to correct the deficiencies; or
ii. permit Phone1 to replace the Upgrade, at no additional charge to
SBC, with a substitute solution ("Alternative Upgrade") that, in
SBC's judgment, is functionally equivalent or superior to the
original Upgrade; or
iii. terminate this Agreement without liability to SBC or Phone 1,
whereupon SBC shall de-install the Upgrades or Alternative
Upgrades on all Test Phones and from any and all SBC network
facilities.
If SBC elects the option set forth in subparagraph (i) above, at the
conclusion of the agreed-upon extension, SBC shall again have the same
three options as listed above. If SBC elects the option in
subparagraph (ii), the Alternative Upgrade shall be subject to the
same Acceptance Trial as the replaced Upgrade, with the trial
commencing upon proper installation of the Alternative Upgrade. If SBC
elects the option in subparagraph (iii), it shall cancel without
liability, any undelivered orders for Equipment, remove and return any
installed Equipment, and return any unused promotional material.
8. SERVICE PERFORMANCE
A. The quality of the Services shall be comparable to the quality
obtainable through the services provided by the major providers
of long distance calling from public pay telephones using smart
set technology, and shall not generate a volume or severity of
complaints or inquiries to SBC, or to regulatory bodies or other
authoritative bodies, that exceed the level of complaints
generated by consumers utilizing SBC's installed pay telephone
base prior to the implementation of the Phone1 Services.
B. The Phone1 Service shall adhere to a Service Availability of
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2] as measured by a service performance report provided
monthly to SBC by Phone1. For the purposes of this Section 8,
Service Availability shall be defined as the ability of the
Service to accept and complete 1+ calls from the applicable SBC
public pay telephones.
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C. Time to Answer for calls carried by Phone1 under this Agreement
shall be [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 24b-2] or less. Time to Answer shall be defined as the
average time after the consumer has dialed the final digit of the
telephone number being called to the time the terminating number
first rings. Phone1 shall notify SBC no less than one (1) hour
after Phone1 Service experiences a major (Priority 1) service
failure as set forth in Exhibit F. Phone1 shall adhere to the
Escalation procedure set forth in Exhibit F for all service
outages not corrected in the time frames set forth therein.
D. Phone1 shall provide SBC with a toll free service call to which
service problems can be reported twenty-four (24) hours per day,
seven (7) days per week, three-hundred and sixty-five (365) days
per year.
E. In the event the Phone1 Services fail to operate solely because
of major outage with the Phone1 platform, and Phone1 calls are
unable to be made from SBC public pay telephones for a period of
time exceeding twenty-four (24) hours pursuant to procedures in
Exhibit F, Phone 1 shall pay to SBC any lost SBC commissions for
each day of the outage. Lost commissions will be based on the
average Phone1 call revenues associated with the same or
similarly-situated SBC public pay telephones during the previous
thirty (30) day period.
F. In the event Phone1's Call Detail Record collector fail to record
and capture Call Detail Records that should have been generated
as a result of consumers' use of the Service ("Lost CDRs"),
Phone1 shall notify SBC and, at no cost to SBC, Phone1 shall
reconstruct the Lost CDRs through Phone1's IXC carrier billing
information for such calls. Phone1's failure to record and
capture Call Detail Records shall not be deemed a material breach
of this Agreement so long as Phone1 notifies SBC of Lost CDRs and
is able promptly to reconstruct Lost CDRs.
9. RISK OF LOSS
Phone1 shall bear the risk of loss of or damage to all Equipment supplied
and shipped by Phone1 and any other parts and materials that may be required for
Upgrades, except that SBC shall be responsible for loss or damage to such
Equipment and/or parts and materials caused by SBC's acts or omissions, theft
and/or vandalism.
10. TRADENAMES AND TRADEMARKS; ADVERTISING REVIEW; OWNERSHIP OF TECHNOLOGY:
A. Neither Party may use the other Party's marks, tradenames, or logo
designs without the other Party's prior written approval.
B. Neither Party, under any circumstances, will advertise the other
Party's products or services without the other Party's prior written
approval.
C. Either Party may use the other Party's marks, tradename, and logo
design only in marketing materials, advertising, and promotional
literature (collectively, "Materials") in conjunction with its
solicitation of the Services only with the prior written approval of
the other Party. Such prior written approval shall be obtained for
each instance of any usage of any Party's xxxx or tradename in such
Materials.
D. Each Party acknowledges and agrees that: (i) such Party's marks are
owned by it; (ii) it will do nothing inconsistent with such ownership;
(iii) all use of the marks by it will inure to the benefit of and be
on behalf of the owner of the xxxx; (iv) that nothing in this grant
will give it any right, title or interest in the other Party's marks
other than the right to use the marks in accordance herewith; (v) it
will not attack the other Party's title to the marks or the validity
of this grant; and (vi) further agrees to use the other Party's marks
only in the form and manner prescribed from time to time by such
Party, and not to use any other trademark or service xxxx in
combination with any of the other Party's marks without the prior
written approval of such Party.
E. Neither Party may assign this grant of a limited, nonexclusive
authorization to any other entity or Party without the prior written
approval of the other Party.
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F. Each Party agrees, at its own expense, to defend, indemnify and hold
the other Party ("Indemnified Party") harmless from and against any
and all claims, suits, actions, proceedings, judgments, damages,
liabilities, costs and expenses (including attorney's fees) arising
either from use of the Indemnified Party's marks by the other Party or
any third party authorized by the other Party or advertising claims
made in connection therewith, other than a claim based on an assertion
by a third party either that the Indemnified Party does not own the
marks, does not have the right to grant the authorization provided
herein, or that the substance of an advertising claim approved by the
Indemnified Party is materially false or misleading.
G. Upon termination of this Agreement, any permission or right to use
marks granted hereunder will cease to exist and each Party will
immediately cease any use of such marks and immediately cease
referring to itself as an authorized user or provider.
H. Each Party will submit to the other Party at the following address an
identical copy of any material in which such Party seeks to use the
other Party's marks, tradename or logo design for written approval
prior to use:
To Phone1: To SBC:
---------- -------
Phone1 Inc. SBC Public Communications
000 Xxxxx Xxxxxxxx Xxxx. 000 X. Xxxxxxxx Xxxxxx
25th Floor Floor 15C
Miami, Florida 33132 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, CEO Attn: Xxxx X. Xxxxx, Director of Contracts
I. The Parties acknowledge and agree that the intellectual property and
other technology included in the Equipment is proprietary to Phone1,
and nothing in this Agreement, including transfer of title to the
Handset and or Dumb Set Upgrade (DSU), is intended to transfer
ownership of any such intellectual property or technology to SBC.
Nothing in this Agreement shall permit SBC to use any of the Equipment
except under this Agreement. Upon termination of this Agreement in
whole or part, for any reason whatsoever, and unless agreed to
otherwise in writing, SBC shall cease using any such intellectual
property and technology; provided, however that SBC shall be granted a
limited license for up to one (1) year to remove Equipment that is not
under title to SBC and to disable or remove (at SBC's sole option)
Equipment that is under title to SBC.
11. RECORDS AND AUDITS
A. Phone1 and SBC shall, during the term of this Agreement and for a
period of one (1) year thereafter, maintain complete and accurate
records relating to its performance of this Agreement.
B. SBC and Phone1 shall have the right, during the term of this Agreement
and for a period of one (1) year thereafter, during normal business
hours and upon reasonable prior notice to the other Party, to enter
the other Party's premises to review the other Party's records,
including but not limited to Call Detail Records, as necessary solely
to validate the other Party's compliance with the provisions of this
Agreement, provided that an audit can be conducted no more than twice
in any twelve (12) month period. All information contained in the
records shall be deemed Confidential Information under this Agreement.
If either Party's audit is conducted by a third party auditor, the
Party requesting the audit shall require such auditor to sign an
appropriate nondisclosure agreement with the other Party prior to
obtaining access to the other Party's records. The Party requesting
the audit shall bear all costs and expenses related to such audit. If
any independent audit shows that either party has failed to remit to
the other the amounts required under this Agreement, then promptly
after the audit, the party responsible for the failure shall pay to
the other the difference between the amount paid and the amount that
should have been paid based on the results of the audit.
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12. WARRANTIES
A. Phone1 warrants that Phone1's Equipment will be in good working order
when delivered and complies with all applicable laws and regulations,
including without limitation consumer safety and FCC laws and
regulations. During the Agreement, Phone1 shall, at no charge to SBC,
make all necessary adjustments and and/or upgrades and corrections to
the Services, and provide repair parts and/or replacement parts for
all repairs and/or corrections to the Phone1 Equipment.
B. Phone1 warrants that it is the legal owner of the Handsets, and that
it has the full right, title and interest in said Handset and
Services. Phone1 further warrants to SBC that Phone1 has any and all
necessary authority and permits to enter into this Agreement, offer
the Services and to grant any rights between the Parties that may
result therefrom.
C. SBC warrants it has full legal right to enter into this agreement and
perform its obligations of the agreement and to place Phone1 Services
at the Locations.
D. SBC warrants all phones at Locations are in good working order and
will be maintained in good working order.
13. TERMINATION.
A. This Agreement may be terminated by the non-breaching party upon
thirty (30) days' written notice to the breaching party that any of
the following breach circumstances has occurred:
(i) the breaching party has neglected or failed to perform any of the
material covenants, terms or obligations required to be performed
by it under this Agreement (provided that termination shall not
occur if such failure is cured within the twenty (20) day period
after receipt of the written notice of termination);
(ii) any representation or warranty made by a party in this Agreement
shall prove to have been false or misleading in any material
respect when the same was made;
(iii) a party ceases permanently to carry on its present business,
except as a result of a bona fide reorganization in the course of
which the Agreement is transferred to a successor company of
equal or greater financial resources carrying on substantially
the same business;
(iv) a party makes an assignment for the benefit of creditors; or
admits in writing its inability to pay debts as they mature; or a
trustee or receiver of a party, or of any substantial part of
such party's assets, is appointed by any court; or a proceeding
is instituted against a party under any provision of the United
States Bankruptcy Code or any other law affecting the rights of
creditors and such proceeding is acquiesced in or is not
dismissed within sixty (60) days; or
(v) continued performance would cause a party to be in violation of
(i) any order of any court or regulatory agency having
jurisdiction over such party, or (ii) any law, statute, ordinance
or regulation to which such party is subject.
B. Notwithstanding the foregoing, if the same breach of a material
covenant, term, obligation, or warranty occurs repeatedly (at least
three (3) times within six (6) months) and the breaching party has not
implemented an effective cure following such repeated breaches, the
non-breaching party may terminate this Agreement by providing thirty
(30) days prior written notice to the other party.
14. CHOICE OF LAW
The construction and interpretation of this Agreement and any claims
arising hereunder or related hereto, whether in contract or tort, shall be
governed by the laws (except those provisions relating to conflict of laws) of
the State of Texas.
9
15. COMPLIANCE WITH LAWS
Phone1 and all persons furnished by Phone1 shall comply with the provisions
of the Fair Labor Standards Act, the 1996 Telecommunications Act, the Federal
Occupational Safety and Health Act, environmental laws and all other applicable
federal, state and local laws, ordinances and regulations in the performance of
this Agreement, including the procurement of required permits and certificates.
Phone1 shall pay wages that are not less than the minimum wages required by law
to persons employed in its operations hereunder. Furthermore, Phone1 shall keep
current throughout the term of this Agreement all federal, state, and local
licenses, permits, and certificates necessary to perform this Agreement, which
shall be promptly furnished to SBC upon request.
16. CONFIDENTIAL INFORMATION
A. Any information, including but not limited to specifications,
drawings, computer programs, technical or business information or
other data in whatever form (hereinafter "Information") disclosed by
SBC or Phone1 under or in contemplation of this Agreement, shall
remain the property of the disclosing Party. Information shall be
deemed "Confidential Information" if the disclosing Party designates
and clearly marks the information as proprietary, confidential or
private prior to disclosure or, if oral or visual, the information is
identified as proprietary, confidential or private on disclosure and
is summarized in writing so marked and delivered within ten (10) days
following such disclosure. Notwithstanding the foregoing, SBC's
Confidential Information includes, whether marked or not, any
additional information of SBC to which Phone1 has access through it
performance hereunder. Confidential Information shall be subject to
the following:
(1) recipient shall restrict disclosure of the Confidential
Information to employees of the recipient with a "need to know"
(i.e., employees that require the Confidential Information to
perform their responsibilities in connection with this Agreement)
and not disclose it to any other person or entity without the
prior written consent of the disclosing Party, except SBC may
disclose such Confidential Information to employees of its
corporate affiliates with a need to know;
(2) recipient shall use the Confidential Information only for
purposes of performing under this Agreement:
(3) recipient shall advise those employees who access the
Confidential Information of their obligations with respect
thereto; and
(4) recipient shall copy the Confidential Information only as
necessary for those employees who are entitled to receive it and
ensure that all confidentiality notices are reproduced in full on
such copies.
B. The recipient recognizes and agrees that the unauthorized use or
disclosure of the Confidential Information should cause irreparable
injury to the disclosing Party for which they would have no adequate
remedy at law, and that an actual or contemplated breach of this
Section shall entitle the disclosing Party to obtain immediate
injunctive relief prohibiting such breach, in addition to any other
rights and remedies available to it. The obligations herein contained
shall expressly survive the termination or expiration of this
Agreement and for a period of five (5) years from the date hereof.
C. The obligations in the first paragraph shall not apply to any
Confidential Information if the recipient can demonstrate that the
Confidential Information:
(1) is or becomes available to the public through no breach of this
Agreement;
10
(2) was previously known by the recipient without any obligation to
hold it in confidence;
(3) is received from a third Party free to disclose such information
without restriction;
(4) is independently developed by the recipient without the use of
the Confidential Information of the disclosing Party;
(5) is approved for release by written authorization of the
disclosing Party, but only to the extent of such authorization;
(6) is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
(7) is disclosed in response to a valid order of a court or lawful
request of a governmental agency, but only to the extent of and
for the purposes of such order or request, provided that the
recipient first notifies the disclosing Party of the order or
request ten (10) days prior to disclosure and permits the
disclosing Party to seek an appropriate protective order.
D. At the written request of the disclosing Party, the recipient shall
return such Confidential Information, including all copies, to the
disclosing Party or destroy such Confidential Information and certify
in writing that it has satisfied its obligations under this Agreement.
E. Without limiting any of its obligations under this Agreement, at law,
or under regulations, to the extent that Phone1 acquires Carrier or
Customer Proprietary Network Information, Phone1 certifies that it
shall adhere to and abide by Section 222 of the Federal
Telecommunications Act of 1996 pertaining to the privacy of public
information.
17. FORCE MAJEURE
Neither Party shall be liable to the other for any delay or failure in
performance hereunder due to fires, strikes, threatened strikes, stoppage of
work, embargoes, requirements imposed by governmental regulations, civil or
military authorities, acts of God, the public enemy or other causes which are
beyond the control of the Party unable to perform (hereinafter "force majeure"),
provided that causes or impacts related to the arrival of the next millennium
shall not be considered a force majeure. If a force majeure occurs, the Party
delayed or unable to perform shall give immediate notice to the other Party.
18. INDEMNITY
A. Phone1 shall defend, indemnify, and hold harmless SBC, its corporate
affiliates, their officers, employees and agents from and against all
losses, damages, expenses (including attorney's fees auld costs),
claims, suits and liabilities, whether based in contract or tort
(including strict liability), to the extent arising out of or
resulting from (a) Phone1's negligent or intentional acts or
omissions, or those of persons furnished by it; (b) defective
materials and/or Services provided hereunder, or (c) assertions under
Worker's Compensation or similar laws made by persons furnished by
Phone1, including but not limited to all applicable laws or
regulations implicated by Phone1's Services. SBC shall promptly notify
Phone1 of any written claim or demand for which Phone1 is responsible
under this Section.
B. SBC shall defend, indemnify, and hold harmless Phone1, its corporate
affiliates, their officers, employees and agents from and against all
losses, damages, expenses (including attorney's fees auld costs),
claims, suits and liabilities, whether based in contract or tort
(including strict liability), to the extent arising out of or
resulting from (a) SBC's negligent or intentional acts or omissions,
or those of persons furnished by it, or (b) assertions under Worker's
Compensation or similar laws made by persons furnished by SBC. Phone1
shall promptly notify SBC of any written claim or demand for which SBC
is responsible under this Section.
11
19. INFRINGEMENT
Phone1 shall defend, indemnify and hold harmless SBC and its corporate
affiliates from and against any suits, claims, actions, losses, damages,
expenses (including attorneys' fees and costs) or liabilities that may result by
reason of any alleged violation, infringement or misappropriation of a United
States patent, trade secret, copyright or other proprietary right, regulation or
rule based on use of the Equipment and/or Services or the performance and
receipt of any Services provided under this Agreement. SBC shall promptly notify
Phone1 of any claim of infringement violation or misappropriation for which
Phone1 is responsible and shall cooperate with Phone1 to facilitate the defense
or settlement of such claim. Phone1 or Phone1's attorney(s) shall keep SBC
reasonably apprised of the continuing status of the claim, including any lawsuit
resulting there from, and shall permit SBC, upon SBC's written request, to
participate in the defense or settlement of such claim.
20. LIABILITY
Except as otherwise set forth in this Agreement, SBC shall not be
responsible for loss of or damage to Equipment during this Agreement not arising
solely from SBC's negligence or intentional conduct. Neither Party shall be
liable for loss of profits, except as otherwise provided for herein. In
addition, neither party shall be liable for direct, indirect, incidental,
special, consequential or other damages under this Agreement. SBC shall not be
liable for Phone1's failure to abide by any state or federal law, rule or
regulation related to the Services provided by Phone1 under this Agreement.
21. TECHNOLOGY ESCROW AGREEMENT
Phone1 and SBC agree that within thirty (30) days of the Acceptance Trial
and, if accepted by SBC, Phone1 shall deposit Phone1's call platform
specifications, including hardware specifications, operating system requirement,
etc, along with the source code and related documentation for the Upgrade (or
Alternate Upgrade) into an escrow account, pursuant to a reasonable and
appropriate Technology Escrow Agreement entered into by and between Phone1, SBC,
and the escrow agent similar in form and content as that shown as Exhibit G. Any
disputes relating to the Escrow Agreement, including whether a triggering event
has occurred or Phone1's consent to release the source code, shall be resolved
pursuant to the Dispute Resolution provisions of this Agreement. At a minimum,
the escrow agreements shall provide that:
A. The copy of the source code placed in escrow shall be reproduced and
maintained on magnetic medium compatible with the equipment on which
the Services are provided to SBC;
B. The source code shall be accompanied by full documentation and other
information and technical materials that will enable a reasonably
skilled technician, programmer or analyst to maintain or enhance the
subject software without references to any other materials. This
information and materials shall include maintenance tools (test
programs and program specifications), proprietary or third party
system utilities (compiler and assembler descriptions), a description
of the system/program generation, and descriptions and locations of
programs not owned by Phone1 that are required for use and/or support
of the Services;
C. When a change is made to the source code during the term of this
Agreement, the revised source code shall be deposited into escrow no
later than seven (7) days after the source code has been revised, and
the immediately preceding version of the source code shall remain in
escrow with the revised version. All deposits of revisions to the
source code shall include the documentation and other information and
materials described in paragraph B above;
D. The escrow agreement shall authorize the escrow agent to release the
versions of the source code held in escrow to SBC immediately upon
SBC's notification and the consent of Phone1, such consent not to be
unreasonably withheld or delayed, to the escrow agent that one of the
triggering events has occurred, and Phone1 has failed to immediately
provide the source code to SBC. Such triggering events are outlined in
Exhibit G, Section 3
12
22. NOTICES
A. Any notice which under the terms of this Agreement must or may be
given or made by either Party hereunder shall be in writing and shall
be delivered personally or sent by U.S. Mail, express delivery service
or by certified mail, return receipt requested, addressed to the
respective Parties at the addresses set forth below:
To Phone1: To SBC:
---------- -------
Phone1 Inc. SBC Public Communications
000 Xxxxx Xxxxxxxx Xxxx.-00xx Xx. 000 X. Xxxxxxxx Xxxxxx - Xxxxx 00X
Xxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, CEO Attn: Xxxx X. Xxxxx, Director of Contracts
B. Notices will be deemed to have been received as of the earlier of the
date of actual receipt or, in case of notices sent via U.S. mail,
three (3) days after mailing. A signed receipt shall be obtained where
a notice is delivered in person.
23. [CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
24. INSURANCE
A. Prior to the execution of this Agreement, Phone1 shall have obtained
and shall maintain during the term of this Agreement: (a) Workers'
Compensation insurance as prescribed by the law of the state in which
Phone1's obligations under this Agreement are performed, (b)
Employer's Liability insurance with limits of at least $1,000,000 for
each occurrence, (c) Commercial General Liability insurance
(including, but not limited to, contractual and products liability
coverage) with combined single limits for each occurrence of at least
$2,000,000, (d) if the use of motor vehicles is required, Commercial
Automobile Liability insurance (including hired and non-owned
coverage) with combined single limits for each occurrence of at least
$2,000,000 for bodily injury and property damage, (e) Comprehensive
Crime Insurance (including employee dishonesty (fidelity bond)
coverage and theft, disappearance, and destruction coverage) with
limits of at least $100,000 per occurrence and with "Loss Payable in
Favor of SBC".
B. Neither Phone1 nor Phone1's insurer(s) shall have a claim, right of
action or right of subrogation against SBC based on any occurrence
insured against, in whole or in part, under the foregoing insurance.
Phone1's policy shall be endorsed to name "SBC Services, Inc., its
subsidiaries and corporate affiliates" as additional insureds and
state: "SBC is to be notified in writing at least thirty (30) days
prior to cancellation of or any material change in this policy."
Phone1 shall furnish a copy of the endorsement and certificate(s)
evidencing the foregoing insurance coverage prior to commencement of
Services hereunder and, if applicable, annually thereafter during the
term of this Agreement. Phone1's purchase of insurance shall not in
any way limit Phone1's liability under this Agreement.
13
25. ASSIGNMENT
Neither Party may assign this Agreement in whole or in part without the
written consent of the other Party, which consent may be withheld for any
reason.
26. INDEPENDENT CONTRACTOR
Phone1 shall perform the Services hereunder as an Independent Contractor,
and nothing herein shall be construed as creating the relationship of
partnership, agency or joint venture between the parties hereto. Neither Phone1
nor Phone1's subcontractors nor their employees shall be deemed for any purpose
to be employees of SBC. Accordingly, neither Phone1 nor its employees shall be
entitled as a result of this Agreement to any of the benefits under any employee
benefit plan SBC presently has in effect or may put into effect. Phone1 shall be
solely responsible for the withholding or payment of all applicable federal,
state and local personal income taxes, social security taxes, and other payroll
taxes with respect to their employees, as well as any applicable state
unemployment or compensation act(s). Phone1 has sole authority and
responsibility to hire, fire and otherwise control is employees.
27. DISPUTE RESOLUTION
A. If any claim, controversy or dispute between the parties, their
agents, employees, officers, directors or affiliated agents should
arise, and the parties do not resolve it in the ordinary course of
their dealings (the "Dispute"), then it shall be resolved in
accordance with the dispute resolution process set forth in these
sections A through C. Each notice of default, unless cured within the
applicable cure period, shall be resolved in accordance herewith.
B. At the written request of either party, and prior to any other formal
dispute resolution proceedings, each party shall designate an
officer-level employee with authority to resolve the dispute, to
review, meet, and negotiate, in good faith, to resolve the Dispute.
The parties intend that these negotiations be confidential and not to
prejudice to the legal position of either party, to be conducted by
non-lawyer, business representatives, and the locations, format,
frequency, duration, and early conclusion of these discussions shall
be at the discretion of the representatives. By mutual agreement, the
representatives may use other procedures, such as mediation, to assist
in these negotiations. The discussions and correspondence among the
representatives for the purposes of these negotiations shall be
treated as Confidential Information developed for purposes of
settlement, and shall be exempt from discovery and production, and
shall not be admissible in any subsequent arbitration or other
proceedings without the concurrence of both the parties.
C. If the officer-level representatives have not reached a resolution of
the Dispute within thirty (30) calendar days after the matter is
referred to them, then either party may avail themselves to any other
legal rights they may have.
28. SURVIVAL OF OBLIGATIONS
The parties' obligations under this Agreement which by their nature are
intended to continue beyond the termination or expiration of this Agreement
shall survive the termination or expiration of this Agreement.
29. NO WAIVER OF RIGHTS
Failure of either party to insist on performance of any term or condition
of this Agreement or to exercise any right or privilege hereunder shall not be
construed as a waiver of such term, condition, right, or privilege in the
future.
30. SEVERABILITY
If any provision of this Agreement shall be held invalid or unenforceable,
such provision shall be deemed deleted from this Agreement and replaced by a
valid and enforceable provision which so far as possible achieves the same
economic and other benefits for the parties as the severed provisions was
intended to achieve, and the remaining provisions of this Agreement shall
continue in full force and effect.
14
31. TAXES
Phone1 shall be responsible for all taxes related to the Services provided
under this Agreement and SBC shall be responsible for taxes related to the
public pay telephone service within the meaning of Section 276 of the
Telecommunications Act of 1996.
32. AUTHORITY
Each Party represents to the other that it has full authority to enter into
and secure performance of this Agreement, and that the person signing this
Agreement on behalf of the Party has been properly authorized to enter into this
Agreement. Each Party further acknowledges that it has read this Agreement,
understands it, and agrees to be bound by all of its terms, conditions, and
provisions.
33. ENTIRE AGREEMENT
The terms contained in this Agreement constitute the entire agreement
between the Parties with respect to the subject matter hereof, superseding all
prior written agreements, including the Services Trial Agreement dated June 26,
2002. This Agreement may not be modified except by a writing signed by the
Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first herein
above mentioned.
SBC SERVICES, INC.,
FOR ITSELF AND ON BEHALF OF ITS AFFILIATES PHONE1, INC.
BY: /s/ Xxxxxxx Xxxxx BY: /s/ Xxxxx Xxxxxxxxx
--------------------------------------------- ---------------------------------------
NAME: Xxxxxxx Xxxxx NAME: Xxxxx Xxxxxxxxx
--------------------------------------------- ---------------------------------------
TITLE: President Public Communications TITLE: Chief Executive Officer
-------------------------------------------- ---------------------------------------
DATE: December 10, 2002 DATE: December 10, 2002
--------------------------------------------- ---------------------------------------
ATTACHMENT A
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
ATTACHMENT B
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
EXHIBIT A
DATA FEED FOR
SBC PUBLIC PAY PHONES & LOCATIONS
============================== =========== =========== ========== ==================================================
------------------------------ ----------- ----------- ---------- --------------------------------------------------
1.1 SBC NOTIFICATION FILE LAYOUT
------------------------------ ----------- ----------- ---------- --------------------------------------------------
FIELD NAME POSITION LENGTH TYPE FIELD DESCRIPTION / VALUE
------------------------------ ----------- ----------- ---------- --------------------------------------------------
1. Company 1-4 4 X AIT-Ameritech, PB-Pacific Xxxx, XX-Nevada Xxxx,
SWBT-Southwestern Xxxx, SNET-Southern New England
------------------------------ ----------- ----------- ---------- --------------------------------------------------
2. Action Code 5-8 4 X INST-Install, DISC-Disconnect, CNR1-Customer
transfer
------------------------------ ----------- ----------- ---------- --------------------------------------------------
3. Premise Name 9-30 21 X Name of Customer
------------------------------ ----------- ----------- ---------- --------------------------------------------------
4. Address 31-60 39 X Street Address, Location
------------------------------ ----------- ----------- ---------- --------------------------------------------------
5. City 61-72 12 X City
------------------------------ ----------- ----------- ---------- --------------------------------------------------
6. Xxxxx 00-00 0 X 0 Xxxx Xxxxx Abreviation
------------------------------ ----------- ----------- ---------- --------------------------------------------------
7. Zip 75-83 9 9 5 or 9 Digit Zip Code
------------------------------ ----------- ----------- ---------- --------------------------------------------------
8. Telephone Number 00-00 00 0 10 Digit Phone Number
------------------------------ ----------- ----------- ---------- --------------------------------------------------
9. PIC 94-97 4 X 0+ PIC
------------------------------ ----------- ----------- ---------- --------------------------------------------------
10. Industry 00-000 00 X Description of Industry
============================== =========== =========== ========== ==================================================
TOTAL 113
============================== =========== =========== ========== ==================================================
EXHIBIT B
HANDSET SPECIFICATIONS
Phone1 shall supply handset with cords according to the following
specifications:
Handset Description 20"Dynamic Pac Xxxx
Length 22"
Wire Color R,B,W,W,
Wire Length 35"
Inside Spade
Outside Female
J-Xxxx XX Tube
Length 29"
Paint Color Phone1 Yellow
NOTE: Handset must meet or exceed Bellcore TR-NWT-000452, Issue 2 "Generic
Requirements for Public Telephone Handsets"
EXHIBIT C
PHONE1/SBC INSTALLATION SCHEDULE
Beginning 12/15/02, a 90-day rolling implementation schedule, that is mutually
agreeable to both SBC and Phone1, will be produced.
EXHIBIT D
CALL DETAIL RECORD FORMAT
1. RECORD LAYOUT
1.1 HEADER RECORD LAYOUT
------------------------------ ----------- ----------- ---------- --------------------------------------------------
FIELD NAME POSITION LENGTH TYPE FIELD DESCRIPTION / VALUE
------------------------------ ----------- ----------- ---------- --------------------------------------------------
1. Record Type 1 4 X Value: "0001"
------------------------------ ----------- ----------- ---------- --------------------------------------------------
2. File Identifier 5 5 X Reserved for Future Use
------------------------------ ----------- ----------- ---------- --------------------------------------------------
3. Date 10 8 9 Date File Was Created.
Format: YYYYMMDD
------------------------------ ----------- ----------- ---------- --------------------------------------------------
4. Time 18 4 9 Time File was Created. Format: HHMM
(Military time - 11:01PM = 2301)
------------------------------ ----------- ----------- ---------- --------------------------------------------------
5. Sequence Number 22 4 9 Sequence number. Field Will Increment by 1 to
9999. Right Justified, Zero Filled
If the file is resent, it will have the same
sequence number
------------------------------ ----------- ----------- ---------- --------------------------------------------------
6. Filler 26 49 X Blanks.
------------------------------ ----------- ----------- ---------- --------------------------------------------------
7. EOL 75 1 End of Line
============================== =========== =========== ========== ==================================================
TOTAL 75
============================== =========== =========== ========== ==================================================
1.2 TRAILER RECORD LAYOUT
------------------------------ ----------- ----------- ---------- --------------------------------------------------
FIELD NAME POSITION LENGTH TYPE FIELD DESCRIPTION / VALUE
------------------------------ ----------- ----------- ---------- --------------------------------------------------
1. Record Type 1 4 X Value: "0002"
------------------------------ ----------- ----------- ---------- --------------------------------------------------
2. File Identifier 5 5 X Reserved for Future Use
------------------------------ ----------- ----------- ---------- --------------------------------------------------
3. Date 10 8 9 Date File Was Created.
Format: YYYYMMDD
------------------------------ ----------- ----------- ---------- --------------------------------------------------
4. Time 18 4 9 Time File was Created. Format: HHMM
(Military time - 11:01PM = 2301)
------------------------------ ----------- ----------- ---------- --------------------------------------------------
5. Record Count 22 4 9 A Count of All The Detail Rrecords. Header and
Trailer records are Not Counted. Right
Justified, Zero Filled.
------------------------------ ----------- ----------- ---------- --------------------------------------------------
6. Filler 26 49 X Blanks.
------------------------------ ----------- ----------- ---------- --------------------------------------------------
7. EOL 75 1 End of Line
============================== =========== =========== ========== ==================================================
TOTAL 75
------------------------------ ----------- ----------- ---------- --------------------------------------------------
1.3 DETAIL RECORD LAYOUT
------------------------------ ----------- ----------- ---------- --------------------------------------------------
FIELD NAME POSITION LENGTH TYPE FIELD DESCRIPTION / VALUE
------------------------------ ----------- ----------- ---------- --------------------------------------------------
1. ORIGTN 1-10 10 X Ten digit number of the payphone (area code,
prefix, and last 4 digits)
------------------------------ ----------- ----------- ---------- --------------------------------------------------
2. CONN_DATE_TIME 11-18 8 X Date and time the call was made - YYYYMMDDHHMMSS
------------------------------ ----------- ----------- ---------- --------------------------------------------------
3. DURATION 19-27 9 9 Length of call in seconds (SSSSSSSSS)
------------------------------ ----------- ----------- ---------- --------------------------------------------------
4. TERMTN 28-43 16 X 16 digits terminating number
------------------------------ ----------- ----------- ---------- --------------------------------------------------
5. JURISDICTION 44-47 4 X ASAL(intrastate intraLata);
ASEL(intrastate interLata);
ESAL(interstate interLata);
ESEL(interstate intraLata);
USIL(USA to International)
------------------------------ ----------- ----------- ---------- --------------------------------------------------
6. REV 48-58 11.2 9V99 Revenue (usage charges and service charges
combined)
------------------------------ ----------- ----------- ---------- --------------------------------------------------
7. CALLCAT 59-61 3 X CC=calling card;
COL=collect;
3RD=third party;
Billed out collect ="O";
SP = Coin;
otherwise=blank
------------------------------ ----------- ----------- ---------- --------------------------------------------------
8. BLG_IND 62 1 X
------------------------------ ----------- ----------- ---------- --------------------------------------------------
9. FILLER 63 12 X Blanks
------------------------------ ----------- ----------- ---------- --------------------------------------------------
10. EOL 75 1 END OF LINE
============================== =========== =========== ========== ==================================================
TOTAL 75
------------------------------ ----------- ----------- ---------- --------------------------------------------------
UPGRADE SPECIFICATIONS
----------------------
EXHIBIT E
---------
Call Testing Complete call testing is critical to determine if the phone is
functioning properly and rating calls accurately. At a minimum
the following call testing must be completed on each station
after programming:
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
EXHIBIT F
PHONE1 PRIORITY DESCRIPTIONS AND ESCALATION PROCEDURE
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
EXHIBIT F - CONT'
ESCALATION TIME LINES
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
EXHIBIT F - CONT'
PRIORITY EXPLANATIONS
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
THE FOLLOWING ARE PROCEDURES AS TO HOW TICKET HANDLING AND
----------------------------------------------------------
ESCALATIONS WILL OCCUR:
-----------------------
[CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2]
EXHIBIT G
TECHNOLOGY ESCROW AGREEMENT
THIS ESCROW AGREEMENT, effective December __, 2002 (the "Escrow Agreement"), is
among SBC Services, Inc. ("SBC"), Phone1, Inc. ("Phone1") and
__________________________ ("Escrow Agent").
Pursuant to that certain "Sent Paid Services Agreement From SBC Pay Phones
Between SBC Services, Inc. and Phone1, Inc. ("the Primary Agreement"), the
parties agree as follows:
1. Phone1 agrees to keep current copies of the source code and other materials
for the Phone1 Services Software ("Deposit Materials") described in
ATTACHMENT 1, attached hereto and made a part hereof, (herein referred to
as the "Software") in escrow with Escrow Agent during the term of the
Primary Agreement, in accordance with the provisions of the Primary
Agreement and this Escrow Agreement.
2. Phone1 shall bear all costs of providing and maintaining the Deposit
Materials in escrow, including the fees of Escrow Agent. The copy of the
Deposit Materials provided to SBC placed in escrow shall be reproduced and
maintained on magnetic tape compatible with workstations and the Systems on
which the Software will operate and shall be accompanied by full
documentation therefor. When a new release or substantial change to the
current release of the Software is issued by or on behalf of Phone1 during
the term of the Escrow Agreement, the revised Deposit Materials, including
the change, shall be delivered to the Escrow Agent as soon as practicable
after the change is effected by or on behalf of Phone1. Copies of the
revised Deposit Materials and the Deposit Materials prior to the then
latest revision, shall be maintained in escrow as provided herein.
3. Subject to the terms and conditions of this Escrow Agreement, Escrow Agent
shall release the Deposit Materials to SBC under the following conditions
(a "Release Condition"):
(a) Except as limited below, existence of any one or more of the following
circumstances, uncorrected for more than thirty (30) days:
(1) all or any material part of such source code is made available by
Phone1 to any other pay phone provider under an agreement
substantially similar in scope to this Escrow Agreement;
RESTRICTED - CONFIDENTIAL INFORMATION
The information contained herein is for use by persons authorized by SBC
Services, Inc. and PHONE1, Inc. only and is not for general distribution within
or outside their respective companies. Disclosure is restricted in accordance
with Confidentiality Clause of the Agreement.
(2) Phone1 ceases, for any reason, to do business, other than in
connection with a corporate reorganization;
(3) Phone1 materially fails, for any reason, to satisfy its
maintenance obligations under the Primary Agreement in connection
with the Services;
(4) Phone1, after having reasonably been requested by SBC to provide
adequate assurance of due performance of Phone1's maintenance and
other obligations in connection with the subject Services, under
the Primary Agreement, fails to provide such adequate assurance
in writing within ten (10) business days of the request;
(5) Phone1 makes an assignment for the benefit of creditors, admits
in writing its inability to pay debts as they mature, has a
trustee or receiver appointed to manage all or a substantial part
of its assets, or commences or has commenced against it a
proceeding under the United States Bankruptcy Code and such
proceeding is acquiesced in or is not dismissed within sixty (60)
days;
(6) an order for relief under Title 11 of the Federal Bankruptcy Code
is entered against Phone1;
(7) the making by Phone1 of a general assignment for the benefit of
creditors;
(8) the appointment of a general receiver or trustee in bankruptcy of
Phone1's business or property; or
(9) action by Phone1 under any state insolvency or similar law for
the purpose of its bankruptcy, reorganization for the benefit of
creditors, or liquidation.
Notwithstanding the foregoing, the occurrence of the described events
will not trigger release of the Deposit Materials if, within the
specified thirty (30) day period, Phone1 provides to SBC adequate
assurances, reasonably acceptable to SBC, of its continued ability and
willingness to fulfill all of its maintenance and support obligations
under the Primary Agreement.
RESTRICTED - CONFIDENTIAL INFORMATION
The information contained herein is for use by persons authorized by SBC
Services, Inc. and PHONE1, Inc. only and is not for general distribution within
or outside their respective companies. Disclosure is restricted in accordance
with Confidentiality Clause of the Agreement.
(b) If SBC believes in good faith that a Release Condition has occurred,
SBC may provide to Escrow Agent written notice of the occurrence of
the Release Condition and a request for the release of the Deposit
Materials ("REQUEST FOR RELEASE"). Such Request for Release shall be
accompanied by an affidavit (the "AFFIDAVIT") signed by SBC attesting:
(1) To a full description of the Release Condition; and
(2) That the Deposit Materials shall continue to be the sole property
of Phone1 and shall be subject to the confidentiality provisions
of the Agreement; and
(3) That the Deposit Materials shall be used solely for SBC's support
and maintenance, modification or correction of the Phone1
Services Software utilized on SBC public pay telephones,
including the creation of derivative works in order to provide
SBC the benefits intended under the Primary Agreement (but not
for purposes of sublicensing), but shall not extend or enlarge
upon the rights of SBC under the Primary Agreement; and
(4) That, notwithstanding delivery of the Deposit Materials to SBC,
the Primary Agreement will continue in full force and effect in
accordance with its terms; and
(5) That upon expiration of the Primary Agreement, SBC will cease to
use the Deposit Materials and will deliver all copies of the
Deposit Materials to Phone1; and
(6) That, in the event SBC engages the services of any third party in
connection with SBC's use of the Deposit Materials as
contemplated hereby, it will enter into an appropriate
confidentiality agreement with the third party so as to protect
Phone1's ownership of and rights to the Deposit Materials; and
(7) That a copy of the Request for Release and said Affidavit have
been provided to Phone1.
Within three (3) business days of receipt of a Request for Release,
Escrow Agent shall provide a copy of the Request for Release and the
Affidavit to Phone1, by certified mail, return receipt requested, or
by commercial express mail.
From the date Escrow Agent mails the notice requesting release of the
Deposit Materials, Phone1 shall have five (5) business days to deliver
to Escrow Agent contrary instructions. "CONTRARY INSTRUCTIONS" shall
mean the written representation by Phone1 that a Release Condition has
not occurred or has been cured. Upon receipt of Contrary Instructions,
Escrow Agent shall send a copy to SBC by certified mail, return
receipt requested, or by commercial express mail. Additionally, Escrow
Agent shall notify both SBC and Phone1 that there is a dispute to be
resolved pursuant to the Dispute Resolution Section of the Primary
Agreement (Section 27). Escrow Agent will continue to store the
Deposit Materials without release pending the first to occur of: (i)
joint instructions from Phone1 and SBC; (ii) resolution pursuant to
the Dispute Resolution provisions; or (iii) order of a court.
RESTRICTED - CONFIDENTIAL INFORMATION
The information contained herein is for use by persons authorized by SBC
Services, Inc. and PHONE1, Inc. only and is not for general distribution within
or outside their respective companies. Disclosure is restricted in accordance
with Confidentiality Clause of the Agreement.
If Escrow Agent does not receive Contrary Instructions from Phone1,
Escrow Agent is authorized to release the Deposit Materials to SBC.
4. Escrow Agent shall be responsible to perform its obligations under this
Escrow Agreement and to act in a reasonable and prudent manner with regard
to this Escrow Agreement. Provided Escrow Agent has acted in the manner
stated in the preceding sentence, the Party on whose behalf, or pursuant to
whose direction Escrow Agent acts, shall indemnify, defend and hold
harmless Escrow Agent from any and all claims, actions, damages,
arbitration fees and expenses, costs, attorney's fees and other liabilities
incurred by Escrow Agent relating in any way to this Escrow Agreement.
Absent any such direction, Phone1 and SBC shall jointly and severally
indemnify and hold harmless Escrow Agent from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities incurred by Escrow Agent relating in any way to this Escrow
Agreement, except for any Liability, costs or expenses that may be
sustained or incurred by the gross negligence or willful misconduct on the
part of Escrow Agent, its employees or agents.
5. Any dispute relating to or arising from this Escrow Agreement that cannot
be resolve pursuant to the Primary Agreement shall be resolved by
arbitration under the Commercial Rules of the American Arbitration
Association. Any court having jurisdiction over the matter may enter
judgment on the award of the arbitrator(s). Service of a petition to
confirm the arbitration award may be made by First Class mail or by
commercial express mail, to the attorney for the Party or, if
unrepresented, to the Party at the last known business address.
6. In the event of the nonpayment of fees owed to Escrow Agent, Escrow Agent
shall provide written notice of delinquency to the parties to this Escrow
Agreement affected by such delinquency. Any such Party shall have the right
to make the payment to Escrow Agent to cure the default. If the past due
payment is not received in full by Escrow Agent within one (1) month of the
date of such notice, then at any time thereafter Escrow Agent shall have
the right to terminate this Escrow Agreement to the extent it relates to
the delinquent Party by sending written notice of termination to such
affected parties. Escrow Agent shall have no obligation to take any action
under this Escrow Agreement so long as any payment due to Escrow Agent
remains delinquent.
7. Upon termination of this Escrow Agreement by joint instruction of Phone1
and SBC, Escrow Agent shall destroy, return, or otherwise deliver the
Deposit Materials in accordance with such instructions. Upon termination
for nonpayment, Escrow Agent may, at its sole discretion, destroy the
Deposit Materials or return them to Phone1. Escrow Agent shall have no
obligation to return or destroy the Deposit Materials if the Deposit
Materials are subject to another escrow agreement with Escrow Agent.
RESTRICTED - CONFIDENTIAL INFORMATION
The information contained herein is for use by persons authorized by SBC
Services, Inc. and PHONE1, Inc. only and is not for general distribution within
or outside their respective companies. Disclosure is restricted in accordance
with Confidentiality Clause of the Agreement.
8. All notices, invoices, payments, deposits and other documents and
communications ("Notices") shall be given to the parties at the address
specified in Section 22 of the Primary Agreement, except that Notice to the
Escrow Agent shall be provided to it at the address set forth on the
signature page to this Escrow Agreement. It shall be the responsibility of
the parties to notify each other as provided in this Section in the event
of a change of address. The parties shall have the right to rely on the
last known address of the other parties. Unless other wise provided in this
Escrow Agreement, all Notices may be delivered by First Class mail.
IN WITNESS WHEREOF, this Escrow Agreement has been executed by authorized
representatives of the parties hereto, as of the date first set forth above.
PHONE1, INC. SBC SERVICES, INC.
By: By:
------------------------------- ----------------------------------
Print Name: Print Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------- ----------------------------------
Date Signed: Date Signed:
------------------------------- ----------------------------------
-------------------------------
(Name of Escrow Agent)
By:
-------------------------------
(Print Name)
Title:
-------------------------------
Date:
-------------------------------
Signed:
-------------------------------
Address:
-------------------------------
-------------------------------
RESTRICTED - CONFIDENTIAL INFORMATION
The information contained herein is for use by persons authorized by SBC
Services, Inc. and PHONE1, Inc. only and is not for general distribution within
or outside their respective companies. Disclosure is restricted in accordance
with Confidentiality Clause of the Agreement.
