THIS AGREEMENT entered into this ___ day of _______, 2002 (“Effective Date”), by and between Public Telephone, Inc. (“PTI”), a Utah corporation having as its principal place of 789 East 8375 South, Sandy, Utah 84094 and ________________________________ (“CLIENT”), a (State)___________ Corporation having as its principal place of business at __________________________________________________ (hereinafter collectively referred to as the Parties).
R E C I T A
L S:
WHEREAS, ComTrust has facilities in place and operators trained to provide nationwide directory assistance services; and
WHEREAS, CLIENT desires to utilize ComTrust services by using Public Telephone, Inc. as an aggregator. Public Telephone, Inc. will be providing the invoice for the Agent.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows:
SECTION I. BASIC SERVICES
PROVIDED BY COMTRUST.
1.1 Services. ComTrust shall provide directory assistance operators and access to a national data-base twenty-four (24) hours a day, seven days a week pursuant to the terms and conditions provided herein. ComTrust shall also provide reverse address lookup for an additional cost to CLIENT at an additional .20 per event if CLIENT wishes to turn on this feature. CLIENT shall access the ComTrust network by dialing the assigned 800 number only.
1.2 Payment for Services. Public Telephone, Inc. shall provide to CLIENT an invoice at the end of each month listing: (1) the total number of NDA queries by CLIENT; (2) and the total number of Reverse Address Lookup queries, originated by CLIENT; and (3) total queries summarized by domestic, Canadian and non-mainland (i.e. Alaska, Hawaii, and the Caribbean). Invoices shall be payable within thirty (30) calendar days of the invoice date. Any amounts unpaid for forty five (45) days from their rendering date shall be subject to a freeze on the account until such payment or payment arrangements are made.
1.2.1 Billing Disputes. In the event Client shall in good faith dispute Public Telephone, Inc. computation of charges due, Client shall submit complete documentation of the disputed amount(s) to ComTrust Customer Service Representative no later than thirty (30) days after the invoice date. Upon the discovery of an invoice error, Client shall have the right to dispute charges affected by the error for no more than the previous three (3) months’ invoices, nor shall Public Telephone, Inc., upon the discovery of a computation or invoice error, adjust charges due or paid Client beyond the previous three months. Each Party shall use its respective best reasonable efforts to resolve any dispute as expeditiously as possible.
1.3 Credit Evaluation & Prepayment Obligation. Public Telephone, Inc. shall perform a credit evaluation on CLIENT. Pursuant to the credit evaluation, Public Telephone, Inc. may require that CLIENT post a Security Deposit of one months estimated Gross Billings prior to the initiation of directory assistance services. This Security Deposit may be adjusted monthly to reflect actual monthly usage. The Security Deposit shall be held by Public Telephone, Inc. through the term of this Agreement. Upon termination of this Agreement, Public Telephone, Inc. shall return CLIENT’s Security Deposit, provided there are no outstanding invoices or other accrued charges. Public Telephone, Inc. further reserves the right to withhold any money due to CLIENT to cover any unpaid invoice that is more than thirty 30 days past due.
1.4 Rates & Charges. CLIENT agrees to purchase directory assistance services according to the payment schedule and terms of sale in the Exhibits which are attached hereto and incorporated by reference. CLIENT accepts and agrees to be bound by the rates and charges as set forth in the Exhibits. Public Telephone, Inc. shall provide thirty (30) days advance notice of changes to the Exhibits. In the event Public Telephone, Inc. increases the per-query price over five percent (5%), then CLIENT may terminate this Agreement by providing written notice to Public Telephone, Inc. within thirty (30) days from receipt of notice of changes to the Exhibits.
SECTION II. TERM OF AGREEMENT &
TERMINATION.
2.1 Term. The term of this Agreement shall be ____ (1 ) months from the Effective Date. Upon expiration of the Initial Term, this Agreement shall automatically renew for additional one (1) month periods unless terminated by either Party. Notice of termination shall be given in writing no more than thirty (30) days nor less than thirty (30) days prior to the expiration date of the initial term or any renewal term.
2.2 Termination for Cause. Public Telephone, Inc. may terminate this Agreement with reasonable notice to CLIENT in the event CLIENT is in default of its payment for any invoice-based service or any obligations under this Agreement, provided that CLIENT has failed to cure such non-payment or breach within thirty (30) days after written notice of such default is given to CLIENT. CLIENT may terminate this Agreement at any time in the event Public Telephone, Inc. is in breach of its performance obligations under this Agreement, and provided Public Telephone, Inc. has failed to cure such breach or default within thirty (30) days after written notice of such default or breach is given to Public Telephone, Inc..
SECTION III. MISCELLANEOUS.
3.1 Dispute Resolution. In the event of material breach of any term(s) and/or condition(s) of this Agreement, the wronged Party shall inform the other Party of such breach by written notice to cure or rectify such breach. The other Party shall have thirty (30) days from the date of the notice to cure or rectify such breach. If after thirty (30) days the wronged Party has not received a satisfactory remedy, the Parties agree to submit such dispute(s) for mediation to be conducted in Salt Lake City, Utah and in accordance with the Commercial Mediation Rules of the American Arbitration Association. This section shall in no way impede Public Telephone, Inc. ability to immediately pursue litigation against Client in the event Client defaults in its payment obligations pursuant to Section 1. Client shall be responsible for all undisputed amounts due and owing to Public Telephone, Inc. on their regularly scheduled due dates.
3.2 Notice. All notices shall be in writing, transmitted by prepaid or certified mail and addressed to the Parties as follows:
if to Public Telephone, Inc.: Vice President & General Counsel
Public Telephone, Inc.
789 East 8375 South
Sandy, UT. 84094
Bus: 801-483-9671
Fax: 801-483-9670
If to CLIENT: See Exhibits.
3.3 Limitation of Liability. CLIENT acknowledges and agrees that the database utilized by ComTrust is compiled by a third-party provider and is a nationwide database also utilized by other telecommunications carriers. by ComTrust makes no warranty; either express or implied, as to the accuracy or fitness of the data utilized by ComTrust. The liability of either party for direct damages (other than damages incurred as a result of claims made by third parties and covered by the indemnification provisions below) resulting in whole or in part from or arising in connection with the furnishing of service under this Agreement, including but not limited to mistakes, omissions, interruptions, delays, errors or other defects shall not exceed an amount equal to the total compensation paid by CLIENT under this Agreement. Neither Party shall be liable to the other for special, indirect, consequential or punitive damages (including but not limited to damages for lost profits or lost revenue) arising from or in connection with this Agreement, regardless of whether such Party has been informed of the possibility of such damages. This limitation shall not apply to instances of gross negligence or willful misconduct on the part of either Party.
3.4 Indemnification. Each Party (as "Indemnitor') shall indemnify, defend and hold harmless the other Party (as "Indemnitee") from, and against any and all liabilities, costs, damages, fines, assessments, penalties and expenses (including reasonable attorney's fees) resulting from (a) breach of any provision in this Agreement by the lndemnitor, its employees or operators, or (b) any misrepresentation or illegal act of lndemnitor, its employees or operators, arising out of the lndemnitor's performance hereunder.
3.5 Confidentiality. Except for employees of the CLIENT and by ComTrust and Public Telephone, Inc., and others whose relationship to the Parties requires such information, the Parties agree not to reveal to others any of the information herein, including, but not limited to, rate schedules and the terms of this Agreement, as this information is deemed confidential. The Parties agree not to use any confidential information for any purpose whatsoever without written permission of the other Party.
3.6 Intellectual
Property
3.6.1 Neither CLIENT or Public Telephone, Inc. shall use the others trade names, trademarks or service marks ("Marks"), nor permit them to be displayed or used by third parties, except as specifically provided in this Agreement or upon other prior written approval of the other Party. Nothing in this Agreement creates in a Party rights in the trade names, trademarks or service marks of the other Party. In the event of a breach of this Subsection 8.8.1, the non-breaching party shall be free to seek a temporary restraining order or other injunction, or suit to compel compliance with this Subsection.
3.6.2 Except as otherwise specifically provided in this Agreement, neither CLIENT nor by ComTrust or Public Telephone, Inc. will: (a) use the other Party's corporate logos, trade dress, or other symbols that serve to identify and distinguish such other Party from its competitors (or use confusingly similar corporate logos, trade dress or such other symbols); or (b) conduct business under the other Party's corporate or trade names, logos, trademarks, service marks, trade dress, or other symbols that serve to identify and distinguish such other Party from its competitors (or under any confusingly similar corporate or trade names, logos, trademarks, service marks, trade dress or such other symbols).
3.7 Entire Agreement. This Agreement contains the entire understanding between the Parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, express or implied, oral or written, among the Parties. This Agreement cannot be modified or amended without the written consent of the Parties.
3.8 No Waiver. Failure of either Party to exercise any rights granted to it herein, upon any breach or default by such Party, shall not be deemed a waiver thereof in the event of further breaches or defaults.
3.9 Governing Law. With respect to any lawsuit involving this Agreement, the Parties hereto agree that the prevailing law shall be that of the state of Utah. The Parties irrevocably submit to the personal jurisdiction of each and every Federal or State court in the state of Utah, which has jurisdiction over the subject matter, and waives any objections to venue and any right to assert that such a court is an inconvenient forum.
3.10 Force Majeure. With the exception of CLIENT’s obligation to make payments to Public Telephone, Inc., as provided for herein, neither Party hereto shall be obliged to perform its obligations or commitments hereunder if prevented therefrom by reason of acts of nature, accidents, fires, floods or any other occurrence beyond the control of the Party involved, including the failure of third-party providers, such as suppliers of telephone lines to deliver adequate or timely services. In the event either Party curtails or suspends its services and/or obligations as provided under this Subsection, it shall incur no liability to the other Party or to any other Party or entity arising therefrom.
3.11 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of either Party.
3.12 No Agency. Neither Party is authorized to act as an agent for, or legal representative of, the other Party and neither Party shall have authority to assume or create any obligation on behalf of, in the name of, or binding upon, the other Party. Provision of services hereunder shall not create a partnership, joint venture or other like relationship between the Parties.
3.13 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, and all of which together, shall constitute one and the same agreement.
WHEREFORE, the Parties have executed this Agreement as of the date last written below.
For CLIENT: FOR
Public Telephone, Inc.:
By: _________________________________ By: _____________________________________
Print Name: ___________________________ Print Name: ______________________________
Title: ________________________________ Title: ___________________________________
Date:
________________________________
Date: ___________________________________
RATES
-- MAINLAND Per Query Rate $.45
Optional RATES – REVERSE ADDRESS LOOKUP Per Query Rate an additional $.20
RATES
-- CANADIAN/NON-MAINLAND Per Query Rate $.58
OTHER SERVICES (may
apply to any product type):
Dedicated 8XX Number (if Supplied by CompTrust) $___0.00______
Name and
Address for Notices to Client:
Authorized Individual: __________________________________
Company Name: __________________________________
Address: __________________________________
City/State/Zip: __________________________________
Phone: __________________________________
Fax: __________________________________
PUBLIC TELEPHONE, INC.
8375 South 789 East
Sandy, UT. 84094
Office: (801) 483-9671
Fax: (801) 483-9670
Please e-mail all ani’s
to randy@publictelephone.com in
Word, excel, txt, or dbf format or mail your ani’s on a disc along with this
agreement to the address above.
Any questions please call: Randy Cromar at
801-483-9671
Take’s approximately 24 to 48 hours to get
everything online at which time I will contact you with an 800 number to
program into your switch or payphones.
Thank you very much,
Randy Cromar
President