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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF
SMALL BUSINESS ISSUERS
UNDER SECTION (b) or (g) OF THE SECURITIES AND EXCHANGE
ACT OF 1934
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eTELCHARGE.com, INC
(Name of Small Business Issuer in its Charter)
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NEVADA 75-2847694
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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CARL O. SHERMAN, PRESIDENT
eTELCHARGE.com, INC
407 N. CEDAR RIDGE, SUITE 342,
DUNCANVILLE, TEXAS 75116.
(972) 298-3800
(Address and telephone number of issuer's principal executive offices)
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of Each Class Name of Each Exchange on Which
To be so Registered Each Class is to be Registered
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N/A N/A
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, par value $0.003
(Title of Class)
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TABLE OF CONTENTS
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PART I PAGE
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Item 1. Description of Business............................................................................. 1
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations............... 6
Item 3. Description of Properties........................................................................... 7
Item 4. Security Ownership of Certain Beneficial Owners and Management...................................... 7
Item 5. Directors, Executive Officers, Promoters and Control Persons........................................ 8
Item 6. Executive Compensation.............................................................................. 10
Item 7. Certain Relationships and Related Transactions...................................................... 10
Item 8. Description of Securities........................................................................... 10
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and other Shareholder matters ...... 11
Item 2. Legal Proceedings................................................................................... 11
Item 3. Changes in and Disagreements with Accountants....................................................... 11
Item 4. Recent Sales of Unregistered Securities............................................................. 11
Item 5. Indemnification of Directors and Officers........................................................... 11
PART F/S ............................................................................................ F-1
PART III
Item 1. Index to Exhibits................................................................................... E-1
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FORWARD-LOOKING STATEMENTS
IN ADDITION TO HISTORICAL INFORMATION, THE FORM 10-SB CONTAINS CERTAIN
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995, AND THE COMPANY DESIRES TO FALL WITHIN THE "SAFE
HARBOR" PROVISIONS THEREOF. THIS STATEMENT IS INCLUDED HEREIN FOR THE EXPRESS
PURPOSE OF AVAILING THE COMPANY OF THE PROTECTIONS OF SUCH SAFE HARBOR WITH
RESPECT TO ALL OF THE FORWARD-LOOKING STATEMENTS CONTAINED HEREIN. SUCH FORWARD
LOOKING STATEMENTS REFLECT THE CURRENT VIEWS OF THE COMPANY AND ITS MANAGEMENT
WITH RESPECT TO FUTURE EVENTS AND FINANCIAL PERFORMANCE, AND ARE SUBJECT TO
CERTAIN RISKS AND UNCERTAINTIES, WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER
SUBSTANTIALLY FROM HISTORICAL RESULTS OR ANTICIPATED RESULTS. THE WORDS
"ANTICIPATES," "BELIEVES," "EXPECTS," "INTENDS," "FUTURE," "PROJECTED," "PLANS,"
"PLANNED," "OBJECTIVE" AND SIMILAR EXPRESSIONS IDENTIFY FORWARD-LOOKING
STATEMENTS. READERS ARE CAUTIONED TO CONSIDER SPECIFIC RISK FACTORS DESCRIBED
HEREIN AND NOT TO PLACE UNDUE RELIANCE ON THE FORWARD-LOOKING STATEMENTS
CONTAINED HEREIN, WHICH ARE APPLICABLE ONLY AS OF THE DATE HEREOF. THE COMPANY
UNDERTAKES NO OBLIGATION TO PUBLICLY REVISE THESE FORWARD-LOOKING STATEMENTS TO
REFLECT EVENTS OR CIRCUMSTANCES THAT MAY ARISE AFTER THE DATE HEREOF.
April 27, 2000
PART I
ITEM 1. DESCRIPTION OF BUSINESS
HISTORY
eTELCHARGE.com, Inc. (the "Company"), a development stage company, was
incorporated under the laws of the State of Nevada on June 7, 1999. Its offices
are located at 407 N. Cedar Ridge, Suite 342, Duncanville, Texas 75116. The
Company has an Internet web site, www.etelcharge.com.
THE BUSINESS
The Company was incorporated to launch a nationwide telephone 900
billing solution for items purchased over the World Wide Web. The primary goal
of the Company is to establish business which provides Internet consumers with
an alternative method of billing many of their purchases over the Internet.
Currently most Internet consumers use a main credit card to make purchases from
the Internet believing that their transactions are both private and the use of
their credit card is secure. However, as the news media has pointed out on
numerous occasions, web sites have been compromised by computer hackers who seem
to have an uncanny ability to circumvent security
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systems and gain unauthorized access to credit card numbers. Consequently an
alternative method for consumers using credit cards and which is easy and secure
needs to be found. It is this need that the Company is attempting to address.
For more than five (5) years, the Company's management has worked with
AT&T to build a 900 billing solution that will allow customers nationwide to
charge directly to their phone bills certain targeted goods or services
purchased over the Internet. The Company has currently targeted the following
goods as those goods that may be purchased through its billing system: CD's
(music, software, and games), tapes (movies, music, motivational, and
instructional), books, flowers, and all areas of food classification. The
Company's billing system is built using proven and tested scalable technology.
The key outcome of the Company's system is that the consumer will use a random
single purpose number which will allow payment to an Internet vendor but which
cannot be used by any third parties, including computer hackers who may
compromise the Company's Web Site.
MARKETING STRATEGY
Management's primary objective is to propel the Company into a
prominent online market position. To this end, the Company has developed a
comprehensive plan to intensify and accelerate its marketing and sales
activities, product development, service expansion, computer programming, and
customer service.
MARKET DEFINITION - Ernst and Young estimates online consumers
purchased $13 billion dollars worth of goods and services in 1998. The market
for music, software, videos, books, food and flowers, the Company's target
goods, comprised approximately half of this estimate. Currently, thirty-five
percent (35%) of online users refuse to use their credit cards for purchases
over the Internet. In 1998, these users accounted for approximately $4.5 billion
dollars of the estimated sales of goods and services. Thus, the Company is
poised to capture a significant portion of this market by having the sole AT&T
endorsed billing contract with an alternative payment system that allows users
to charge their purchases directly to their monthly telephone bill. According to
market research and industry sources, the overall book, music, and video market
for the eCommerce industry is projected to continue to be the fastest growing
segment.
CUSTOMER PROFILE - The Company's target market includes online shoppers
who do not have a credit card, or who prefer not to use a credit card, and
desire a safe and easy payment alternative. The typical customer for our product
is someone who is reluctant to transmit his/her personal credit card information
over the Internet and currently uses the Internet to compare prices. Our
research shows that the typical profile for an online buyer is that he is an
affluent (with an annual income exceeding $75,000) caucasian male. Furthermore,
online shoppers are 79% male and 21% female with the average male being 38 years
old, while his female counterpart is typically 37 years old. The average
purchase for a male is $176 while the average purchase for a female is $93.
Additionally, 42% of online male shoppers have a Masters degree, as
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compared to 34% of female online shoppers. In 2000, these figures are projected
to change; females will constitute 52% of online shoppers and 80% of online
transactions will be for purchases under $10.
MARKETING PLAN - The Company will utilize a "push to pull" marketing
strategy, focusing on two markets: first, management plans to introduce the
cybernetic billing solution to online retailers; secondly, management will
promote the Company's safe and easy billing solution to online shoppers. The
push phase will involve a co-marketing campaign with Service One and
Ohgolly.com, which will resell the Company's billing system to their existing
and prospective clients.
The Company's sales strategy includes a media blitz to millions of
email addresses in North America announcing the Company's billing system. These
press releases will inform the online user of the online retailers who accept
the Company's billing system, while encouraging the user to request their
favorite online retailers to participate in the Company's network.
Management has identified four phases to promote the Company's billing
system: (1) establish strategic alliances with Internet web creation companies;
(2) market directly to online retailers; (3) solicit online shoppers directly
via email to demand the Company's alternative payment solution from their
favorite online retailers; and (4) execute an affiliate program with trade
publications using Internet banners to generate traffic from the proprietors of
the industries the Company targets. For the Company's business clients,
Management anticipates using business client testimonials published in targeted
trade journals and magazines offline and online.
Management contemplates selling its billings system through several
channels, including ecommerce online menus, retail music store web sites,
cyberspace hubs hosting menus for ecommerce, publication distribution channels,
retail book stores, movie distribution channels, cable networks, local movie
stores, and online florist networks. Currently, the Company has established
relationships with the following distributors to distribute its billing system:
Consumer Data Solutions Corporation, Service One, IPO Klub, Inc. (an affiliate
of Roma Foods), and Ohgolly.com.
Management further anticipates developing an advertising campaign built
around the security advantages of its product. Two basic themes for press
releases are: (1) the interest and focus of security concerns of online
shoppers; and (2) "good cause" Kid Care benefits from each transaction. These
media releases will be sent to related trade publications and general interest
media publications. Initial advertising and promotion expenditures are estimated
to be $300,000. On an ongoing basis, the Company will budget its advertising
investment as a significant percentage of total sales. The Company plans to
target the following trade publications in print media and Internet media:
Digitrends, Current Technology, Super Floral, Atlantic Unbound Books,
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Pizza Today, Net Commerce. The Company anticipates approximately $8,000,000 in
sales generated from its publicity and from various direct marketing channels,
including print and broadcast media.
The top business concern and limitation that the Company faces is a
change in local phone company billing policies that effect its ability to charge
transactions directly to a consumer's monthly telephone bill. However, the
Company has agreed to work with AT&T on a joint effort in utilizing AT&T's click
and charge technology, Click AT&T, to provide the Company's management an
opportunity to test the performance of the direct AT&T billing compared to local
phone company billing. This plan provides the Company and its potential
customers a reliable transition for all billing services.
The Company also recognizes an additional economic risk involving
default in payments from consumers. To guard against this risk, the Company will
establish and manage a charge back account, to which the Company will set aside
a nonrefundable amount, approximately 3% of sales, that will be allotted to each
online retail merchant.
PRODUCTS AND SERVICES
The Company's product and services include its safe and easy billing
system, reliable telemedia network, and responsive customer service.
BILLING SYSTEM - The Company's billing system is being introduced as
the alternative charging option for the nations $13 billion dollar ecommerce
segment. To use the Company's billing system an online consumer will simply
click on the Company's cybernetic icon to purchase targeted goods (currently
CDs, tapes, books, flowers, and food) over the Internet, and the purchase will
be automatically charged to the customer's phone bill utilizing the patent
pending AT&T Vari-A-Bill system.
TELEMEDIA NETWORK - The Company has contracted with AT&T to obtain
AT&T's services to provide support to all transport traffic while continuing to
provide the Company with online viewing capability of all sales moment by
moment. This capability will provide the targeted industries with a factual way
of monitoring the impact of any electronic marketing blitz as it occurs.
CUSTOMER SERVICE - The Company has identified the need for timely
member support and followup. Therefore, each online retailer will be assigned
a liaison at company headquarters; this individual will have the specific
responsibility of assisting retailers with any and all inquiries. Special
telephone conferences between the Company and the liaisons will identify
recurring problems and solutions will be implemented to streamline operations.
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SIZE OF MARKETS SERVED
By the end of 1998, sales over the Internet reached $13 billion dollars
and is projected to surpass $300 billion dollars in the next four years. This
trend is expected to accelerate as the Internet is growing at a rate of one new
user every 1.67 seconds. As recorded by eStats, between 1997 and 1998, the
Internet grew by 19 million users in the United States, from 28 million in
December 1997 to 47 million by December 1998. This growth in Internet use in the
United States alone equates to: 36 new users every minute, 2,166 every hour,
52,000 every day, 365,000 every week and 1.58 million new users every month. The
Internet has reached approximately 18%, or nearly one in five U.S. homes. These
figures do not account for Internet users worldwide.
COMPETITION
The Company competes in the eCommerce market with the following
entities: (1) eCharge provides a similar service, but is limited in the United
States for services only, and require a different 900 number/icon for every
possible price; (2) iBill and Secure Bill, provides a similar billing service,
but is limited to the purchase of services and requires customers to dial the
900 number provided, obtain a PIN, and enter the PIN number to make a purchase
final; and (3) Click AT& T, with which the Company's management has agreed to a
joint effort in utilizing their click and charge technology for a select market
segment. AT&T's Internet billing differs from the Company's in that AT&T will
bill the consumers separately from the consumer's local phone bill.
Notwithstanding this competition, the Company believes its billing
system provides more features and has superior performance than its competitors.
The Company addresses the most important needs of the online community by
providing its customers with a turnkey privacy and security solution to charge
purchases over the Internet to their phone bill. If the customer has never
downloaded the cybernetic plug-in, it will download automatically once the
customer clicks on the Company's icon, electing to bill the purchase to his
phone bill at the check out counter of the eCommerce page. The program will
automatically invoke the total from the online shopping cart to the consumers
phone bill, utilizing AT&T's Vari-A-Bill system. The online shopper is then
enabled with the option to reconnect back to the Internet or to disengage.
PATENTS, TRADEMARKS, SERVICE MARKS, LICENSES
The Company is a new enterprise and has not filed or been the subject
of any bankruptcy proceedings. The Company has not been awarded any
registrations or patents. However, the Company anticipates filing the name
Etelcharge(SM) as a service mark in the near future.
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EFFECT OF GOVERNMENTAL REGULATIONS ON THE BUSINESS
There are no governmental regulations on the conduct of the Company's
business other than the normal and usual governmental regulations affecting all
businesses. The primary market for the Company's services are consumers who use
the Internet for shopping. Therefore, the Company's customers are the subject of
numerous governmental statistics and regulations, which are designed to protect
consumers from poor or illegal business practices. Because the Company supplies
only a billing service it is anticipated that the Company will not be affected
by consumer statutes and regulations.
AMOUNT SPENT ON RESEARCH AND DEVELOPMENT PRODUCT DEVELOPMENT
The Company's billing system software has been purchased from another
company, Consumer Data Solutions Corp. for the sum of $116,500 payable in 12
equal monthly installments and an ongoing royalty of three percent (3%) of the
Company's net income generated from the billing system. The Company anticipates
that it will need to modify and update the software for the billing system from
time to time to enhance the current system or meet future demands of the market
place, however no specific future costs have been identified.
EMPLOYEES
The Company has 4 full-time employees at its Duncanville facility and
retains specialists as consultants in various fields of expertise.
ENVIRONMENTAL COMPLIANCE
As a services Company, eTelcharge.com has not spent any material
amounts of capital or time in compliance with any federal, state or local
environmental laws.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.
The Company is a start up enterprise with no material operations to
date and although it is in an early stage of development it is not
contemplating or seeking any merger partners.
Management anticipates that revenues for the Company will be generated
from online retailers, manufacturers and consumers. Merchants will be charged an
annual membership of $250 U.S. Dollars, a billing discount fee of 5% to 8% of
the purchase price, not including taxes or other added charges and a 15 cent
($0.15) per transaction charge. Consumers will incur a 10% service fee and a ten
dollar ($10.00) annual fee. The costs of telecommunications for the Company
include: (1) AT&T's billing and collection charge of 8%, which is adjustable to
5% of the total charge of the call upon an increase in sales volume; and (2) 45
cents per transaction for AT&T's transport and service bureau switching.
Management believes it will be able to leverage the telecom traffic of
eTelecharge.com to negotiate a lower billing rate within six to nine months.
Furthermore, the Company will implement a six phase program to
accomplish its goal of market dominance. Phase I involved developing the idea
into a completely workable concept, which the Company has already accomplished.
Phase II involved incorporating etelcharge.com, which the Company has
successfully done. Additionally, in this phase, the Company anticipates entering
into market affiliate agreements to generate market awareness and usage of its
cybernetic billing icon. The Company will also implement its advertising plan of
issuing press releases to related trade publications, general interest media
publications, print media and
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Internet media, including Pizza Marketing Quarterly, Digitrends, Current
Technology, Super Floral, Atlantic Unbound Books, Pizza Today, Net Commerce.
Phase III, which the Company anticipates implementing over the next two
years, involves making adjustments and improvements in its initial product
software developments and marketing. In order to identify the areas that need
improvement, the Company anticipates it will meet with its first online
retailers and AT&T, and further conduct online consumer interviews. In 2001, the
company will implement Phase IV of its plan, which involves offering its system
to over 1,000 online retailers. Furthermore, the Company anticipates it will
secure an agreement with one or more of the major online retailers such as
amazon.com, barnesandnoble.com, borders.com, buysoftware.com, albertsons.com,
food.com, dominicks.com, kroger.com, safeway.com, cdnow.com, movielink.com, and
videosnow.com. The Company will also unveil its billing system at industry
affiliated trade shows, and increase press releases to national and global
media. In 2002, the Company anticipates beginning Phase V of the plan by
focusing on expanding its network on the global level. This plan includes
reinforcing the Company's premier national "good cause" marketing strategy and
increasing presentations at industry affiliated trade shows. The final phase of
the plan, Phase VI, has been earmarked for consumer growth and will begin in
2003. The Company plans to enter into agreements with every established online
merchant, with the goal that its billing system will be used to purchase goods
online as frequently, if not more so, than credit cards.
The initiation of all of the Company's plans is dependent upon the
Company raising sufficient working capital to allow the Company to begin
operations on a day to day basis, however there can be no assurance that the
Company will be successful in doing so. Due to the lack of capital and the
Company's need for working capital to initiate its business plan the Company's
auditors have issued a going concern paragraph as part of their audit opinion.
ITEM 3. DESCRIPTION OF PROPERTY.
The Company currently occupies office space located in Duncanville,
Texas, where it leases approximately 500 square feet located at 407 N. Cedar
Ridge, Suite 342. The Company is sharing rent free office space with Consumer
Data Solutions, Corp. ("CDS") which is a company principally owned by the major
shareholders of the Company. It is anticipated that once the Company secures
adequate working capital that it will either take over the office space of CDS
or seek to lease its own office space.
The Company does not own or have an interest in any other real
property.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth the amount and nature of beneficial
ownership of each of the executive officers and directors of the Company and
each person known to be a beneficial owner of more than five (5)
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percent of the issued and outstanding shares of the Company as of March 31,
2000. The table sets forth the information based on 9,059,637 common shares
issued and outstanding as of March 31, 2000.
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NAME & ADDRESS AMOUNT AND NAME
TITLE OF CLASS OF BENEFICIAL OF BENEFICIAL PERCENT OF CLASS
OWNER OWNER
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Carl O. Sherman or 6,100,000 67%
Common Michelle R. Sherman
Common James E. May 600,000 6.6%
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ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS.
OFFICERS AND SIGNIFICANT EMPLOYEES
The names, addresses, ages and respective positions of the current
directors and officers of the Company are as follows:
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NAME AGE POSITION DATE HELD
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Carl O. Sherman, Sr. 33 President and CEO 1999
Director
Michelle R. Sherman 30 Director and Secretary 1999
Marvin Parish 48 Director 1999
William L. Widman 60 CFO 1999
Robert Penn 34 Vice President of Systems 1999
Administration and CTO
(Chief Technology Officer)
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CARL O. SHERMAN, President, CEO and Director, is a co-founder of the
Company and has served as an executive officer and director of the company since
its inception in 1999. Mr. Sherman is also currently the President and CEO of
Consumer Data Solutions Corp., and has served in these capacities since 1993.
Prior to his employment at Consumer Data Solutions Corp., Mr. Sherman was a
Senior National Account Executive for Sprint Corporation Ltd from 1988 to 1993.
From 1985 to 1988, Mr. Sherman served as President for Consumer Data Paper.
Prior to this time, from 1985 to 1987, Mr. Sherman was employed as a Sprint
Sales Representative for Advance Telemarketing Corporation.
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MICHELLE R. SHERMAN, has served as Director and Secretary for the
Company since its inception in 1999. Ms. Sherman is currently employed at
Consumer Data Solutions Corp. as an Operations Director and Account Executive,
and has been likewise employed since July 1996. Prior to this position, Ms.
Sherman was a Project Supervisor and Customer Service Representative for ATC,
Inc./AT&T Universal Card Project from 1993 to August 1996.
MARVIN PARISH has served as a director of the Company since 1999. From
April 1997 to November 1999, Mr. Parish was employed as a Senior Vice President
at Chase Manhattan Bank in Dallas, Texas. Prior to that time, Mr. Parish was
employed by NationsBank from July 1978 to March 1997. Mr. Parish began his
career at NationsBank as an Administrative Assistant and, after numerous
promotions, left the bank when he held the position of Senior Vice President.
Mr. Parish graduated with a Bachelor of Arts degree from Prairie View A&M
University in 1975, with a concentration in management and economics.
WILLIAM L. WIDMAN has held the position of CFO with the Company since
1999. Mr. Widman is primarily responsible for financial and accounting
procedures. Since March of 1990, Mr. Widman has been self-employed as a
management consultant and specializes in "turnaround management" for small and
mid- size companies. As an independent consultant, Mr. Widman has served as an
interim president of three companies since 1990. From 1984 to 1990, Mr. Widman
held the position of President and CEO of City National Bank, in Houston, Texas,
where his responsibilities included planning, developing, and directing the
activities of the full service commercial bank. From 1980 to 1984, Mr. Widman
was the Executive Vice President and Senior Lending Officer for InterFirst Bank,
where Mr. Widman had direct responsibility for the management of the lending and
credit administration divisions. From 1976 to 1980, Mr. Widman held the position
of Executive Vice President for Century National Bank, where he was recruited to
assist in rejuvenating the troubled bank. Mr. Widman's responsibilities also
included directing the lending activities and bank operations. From 1964 to
1976, Mr. Widman was the Vice President and O.L.C. of the Branch Administration
Division of the Bank of New York, Western Region. As Vice President and O.L.C.,
Mr. Widman planned and directed the activities of over twenty branch banking
offices, and his responsibilities included lending, staffing, profitability and
business development. In 1994, Mr. Widman filed for personal bankruptcy in the
U.S. Bankruptcy Court for Southern District of Texas and was discharged the same
year.
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Mr. Widman graduated from the State University of New York with a major in
History and a minor in Business. He is a veteran of the United States Air Force.
ROBERT PENN, is the Company's Vice President of Systems Administration
and Chief Technology Officer, and has been employed in these capacities since
December 1999. Prior to his employment with the Company, Mr. Penn held the
position of Head Systems Administrator for Parks Associates from 1997 to 1999.
From 1996 to 1997, Mr. Penn was employed as the General Manager of Mr. Jim's
Restaurant. From May 1995 to November 1995, Mr. Penn worked as an Inventory
Representative for an individual Wal-Mart Store location. Prior to this
position, Mr. Penn occupied temporary positions through Kelly Services, Inc.
from October of 1994 to May of 1995. From August 1992 to January 1993, Mr. Penn
found temporary employment through Kelly Services, Inc. Prior to this period,
Mr. Penn was employed as a Lab Technician for Dixico Inc. from 1988 to 1992. In
1995, Mr. Penn filed personal bankruptcy in the U.S. Bankruptcy Court for the
Northern District of Texas and was discharged thereafter.
ITEM 6. COMPENSATION FOR EXECUTIVE OFFICERS AND DIRECTORS.
The Company's executive officers or directors have not received any
form of compensation to date. The Company, as of December 1999, has entered into
employment agreements with Carl Sherman as President, William Widman as Chief
Financial Officer and Michelle Sherman as Secretary. The Agreements do not
provide for cash compensation but provide for the issuance of 200,000, 50,000
and 10,000 common shares respectively of the Company as annual compensation. Mr.
Sherman's Agreement is for a five (5) year term while Mr. Widman's contract is
for two (2) years and Ms. Sherman's for one (1) year.
ITEM 7. CERTAIN RELATIONSHIP AND RELATED TRANSACTIONS.
None of the Company's directors or executive officers are involved in
any ongoing related transactions. It should be noted however that two of the
Company's officers; Carl Sherman, President and Michelle Sherman, Secretary are
husband and wife. The Company purchased its billing system software from CDS
who's major shareholders are Carl and Michelle Sherman.
ITEM 8. DESCRIPTIONS OF SECURITIES.
The Company's Articles of Incorporation authorizes one class of shares,
common stock, that are nonassessable. Ten Million (10,000,000) common shares are
authorized at a par value of three tenths of one cent ($0.003). As of March 31,
2000 there are 9,059,637 common shares issued and outstanding.
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PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS.
The Company has not yet traded its common stock in the public market
and is not currently listed on any exchange.
HOLDERS
The number of stock holders of record of the Company's common stock, as
of March 31, 2000 was 432.
DIVIDENDS
The Company has not declared or paid any cash or stock dividends on its
common stock and does not anticipate declaring a dividend in the foreseeable
future as all profits, if any, are likely to be utilized in the growth of the
Company.
There are currently no restrictions that limit the Company's ability to
pay dividends on its common stock.
ITEM 2. LEGAL PROCEEDINGS.
The Company is not currently involved in, and has never been a
Defendant in any litigation.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS.
The Company has hired the following Certified Public Accounting firm as
its initial auditors;
King Griffin & Adamson P.C.
14160 Dallas Parkway, Ninth Floor
Dallas, Texas 75240
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES.
The Company recently in November and December of 1999, sold a total of
1,040,000 shares of its common stock in return for the sum of $50,000 and
306,667 common shares for the sum of $30,000 in March, 2000. The Company
anticipates initiating a private placement in the near future.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation and Bylaws provide that the
Company will indemnify its directors and officers to the fullest extent provide
by Nevada law. In addition, the Articles or Incorporation contain a provision
limiting a director's and officer's liability for monetary damages to the
fullest extent permitted by Nevada law.
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Furthermore, Section 78.751 of the Nevada General Corporation Law (the
"NGCL") contains provisions relating to indemnification of officers and
directors. Section 78.751(1) provides that a corporation may indemnify any
person who was or is a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except for an action, suit or proceeding, whether civil, criminal,
administrative or investigative, except for an action by or in right of the
corporation by reason of the fact that he was director, officer, employee or
agent of the corporation. In order to indemnify, it must be shown that he acted
in good faith and in a manner he reasonably believed to be in the best interest
of the corporation. Generally, no indemnification may be made where the person
has been determined to be negligent or guilty of misconduct in the performance
of his duty to the corporation.
Section 78.751(2) of the NGCL further allows the corporation to
indemnify any person who was or is a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgement in its favor by reason of the fact that he is or was director,
officer, employee, or agent of the corporation, including amounts paid in
settlement and attorneys' fees if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the opposed to the best interests
of the corporation. Indemnification may not be made for any clam, issue or
matter to which a court of competent jurisdiction has adjudged an officer or
director liable to the corporation, unless and only to the extent that a court
of competent jurisdiction determines that in view of the circumstances of the
case, the person is fairly and reasonably entitled to indemnify for such
expenses.
To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding discussed in the preceding paragraphs, Section
78.751(3) of the NGCL provide that he must be indemnified by the corporation
against expenses, including attorney's fees, actually and reasonably incurred by
him in connection with the defense.
Except when indemnification is required by a court of competent
jurisdiction, Section 78.751(4) of the NGCL states that the corporation shall
only indemnify upon a determination of (i) the shareholders; (ii) majority vote
of the board that were not parties to the action; (iii) if ordered by a majority
vote of a quorum of directors who were not parties to the action, suit or
proceeding, by independent legal counsel in a written opinion; or (iv) by
independent legal counsel in a written opinion if no quorum or directors who
were not parties to the action may be obtained.
Unless ordered by a court of competent jurisdiction, indemnification
may not be made to or on behalf of any officer or director if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and were material to the
cause of action.
-12-
<PAGE> 15
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
person of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
as is therefore unenforceable.
-13-
<PAGE> 16
PART F/S
FINANCIAL STATEMENTS AND
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
ETELCHARGE.COM, INC.
(A Development Stage Company)
December 31, 1999 and March 31, 2000 (unaudited)
F-1
<PAGE> 17
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS........................................................F-3
FINANCIAL STATEMENTS
Balance Sheets at December 31, 1999 and March 31, 2000 (unaudited)....................................F-4
Statements of Operations for the period from June 7, 1999 (inception) to December 31, 1999 and the
three months ended March 31, 2000 (unaudited).......................................................F-5
Statement of Changes in Shareholders' Deficit for the period from June 7, 1999 (inception)
to December 31, 1999 and the three months ended March 31, 2000 (unaudited)..........................F-6
Statements of Cash Flows for the period from June 7, 1999 (inception) to
December 31, 1999 and the three months ended March 31, 2000 (unaudited).............................F-7
Notes to Financial Statements ......................................................................F-8
</TABLE>
F-2
<PAGE> 18
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Shareholders of ETELCHARGE.COM, INC.
We have audited the accompanying balance sheet of ETELCHARGE.COM, INC. (a
development stage company) as of December 31, 1999 and the related statements of
operations, changes in shareholders' deficit and cash flows for the period from
June 7, 1999 (inception) to December 31, 1999. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of ETELCHARGE.COM, INC. as of
December 31, 1999, and the results of its operations and its cash flows for the
period from June 7, 1999 (inception) to December 31, 1999, in conformity with
generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note C to the
financial statements, the Company is in the development stage and has not
generated revenue since its inception. These conditions raise substantial doubt
about the Company's ability to continue as a going concern. Management's plans
in regard to those matters are also described in Note C. The financial
statements do not include any adjustments that might result from the outcome of
this uncertainty.
KING GRIFFIN & ADAMSON P.C.
Dallas, Texas
January 13, 2000
F-3
<PAGE> 19
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
<TABLE>
<CAPTION>
ASSETS
December 31, March 31,
1999 2000
------------ ------------
(Unaudited)
<S> <C> <C>
CURRENT ASSETS
Cash $ 30,988 $ 6,742
Receivable from shareholder 1,000 --
------------ ------------
Total current assets 31,988 6,742
EQUIPMENT 1,000 2,500
PROPRIETARY RIGHTS, net of accumulated amortization
of $1,750 and $7,000 (unaudited) at December 31, 1999 and
March 31, 2000, respectively 61,250 56,000
------------ ------------
TOTAL ASSETS $ 94,238 $ 65,242
============ ============
LIABILITIES AND SHAREHOLDERS' DEFICIT
CURRENT LIABILITIES
Payable to related party $ 101,000 $ 75,500
COMMITMENTS AND CONTINGENCIES (Notes C, E and G)
SHAREHOLDERS' DEFICIT
Common stock, $.003 par value; 10,000,000 shares authorized; 8,752,970 and
9,059,637 (unaudited), issued and outstanding
at December 31, 1999 and March 31, 2000, respectively 26,259 27,179
Additional paid-in capital (6,620) 22,460
Deficit accumulated during the development stage (26,401) (59,897)
------------ ------------
Total Shareholders' deficit (6,762) (10,258)
------------ ------------
TOTAL LIABILITIES AND SHAREHOLDERS' DEFICIT $ 94,238 $ 65,242
============ ============
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-4
<PAGE> 20
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Period from Three Period from
June 7, 1999 months June 7, 1999
(inception) to ended (inception) to
December 31, March 31, March 31,
1999 2000 2000
------------ ------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C> <C>
REVENUES $ -- $ -- $ --
GENERAL AND ADMINISTRATIVE EXPENSES 26,401 35,140 61,541
------------ ------------ ------------
Net loss from operations 26,401 35,140 61,541
OTHER INCOME -- 1,644 1,644
------------ ------------ ------------
Net loss before provision for income taxes 26,401 33,496 59,897
PROVISION FOR INCOME TAXES -- -- --
------------ ------------ ------------
Net loss $ 26,401 $ 33,496 $ 59,897
============ ============ ============
Net loss per share:
Basic and diluted $ 0.00 $ 0.00
============ ============
Weighted average shares outstanding 7,821,431 8,813,785
============ ============
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-5
<PAGE> 21
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN SHAREHOLDERS' DEFICIT
<TABLE>
<CAPTION>
Common Stock
----------------------------- Additional
Number of Paid-in Accumulated
Shares Amount Capital Deficit Total
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Initial issuance of common stock
for services (June 7, 1999)
(Note E) 7,712,970 $ 23,139 $ -- $ -- $ 23,139
Deemed distribution related to
purchase of asset from
affiliate (Note D) -- -- (53,500) -- (53,500)
Issuance of common stock for
cash (November 27, 1999) 400,000 1,200 8,800 -- 10,000
Issuance of common stock for
cash (December 10, 1999) 40,000 120 9,880 -- 10,000
Issuance of common stock for
cash and receivable
(December 17, 1999) 600,000 1,800 28,200 -- 30,000
Net loss for period -- -- -- (26,401) (26,401)
------------ ------------ ------------ ------------ ------------
Balance at December 31, 1999 8,752,970 26,259 (6,620) (26,401) (6,762)
Issuance of common stock
for cash (Unaudited) 306,667 920 29,080 -- 30,000
Net loss for period (Unaudited) -- -- -- (33,496) (33,496)
------------ ------------ ------------ ------------ ------------
Balances at March 31, 2000 (Unaudited) 9,059,637 $ 27,179 $ 22,460 $ (59,897) $ (10,258)
============ ============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-6
<PAGE> 22
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Period from Period from
June 7, 1999 Three months June 7, 1999
(inception) to ended (inception) to
December 31, March 31, March 31,
1999 2000 2000
------------ ------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (26,401) $ (33,496) $ (59,897)
Adjustments for reconcile net loss to net cash used in
operating activities
Initial issuance of common stock for services 23,139 -- 23,139
Amortization 1,750 5,250 7,000
------------ ------------ ------------
Net cash used in operating activities (1,512) (28,246) (29,758)
------------ ------------ ------------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of fixed assets (1,000) (1,500) (2,500)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of common stock 49,000 30,000 79,000
Payments on payable to related party (15,500) (25,500) (41,000)
Cash received on receivable from shareholder -- 1,000 1,000
------------ ------------ ------------
Net cash provided by financing activities 33,500 5,500 39,000
------------ ------------ ------------
INCREASE (DECREASE) IN CASH 30,988 (24,246) 6,742
Beginning cash -- 30,988 --
------------ ------------ ------------
Ending cash $ 30,988 $ 6,742 $ 6,742
============ ============ ============
SUPPLEMENTAL SCHEDULE OF NON-CASH
FINANCING ACTIVITIES:
Issuance of common stock in exchange for receivable
from shareholder $ 1,000 $ -- $ 1,000
============ ============ ============
Issuance of payable to related party in exchange for
proprietary rights $ 116,500 $ -- $ 116,500
============ ============ ============
SUPPLEMENTAL SCHEDULE OF CASH FLOWS:
Cash paid during the period for:
Interest $ -- $ -- $ --
============ ============ ============
Income taxes $ -- $ -- $ --
============ ============ ============
</TABLE>
The accompanying notes are an integral part of this financial statement.
F-7
<PAGE> 23
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE FINANCIAL STATEMENTS
NOTE A - HISTORY AND ORGANIZATION
ETELCHARGE.COM, INC. (the "Company") was incorporated in the State of Nevada on
June 7, 1999. The Company was formed for the purpose of providing an internet
credit option for online shoppers to charge items sold over the internet to
their telephone bill. As of the date of this report, the Company had not
commenced operations. The Company is in the process of raising equity financing
to fund its future operations. As such, the Company is considered to be in the
development stage.
NOTE B - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates and Assumptions
Management uses estimates and assumptions in preparing financial statements in
accordance with generally accepted accounting principles. Those estimates and
assumptions affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities, and the reported amounts of
revenues and expenses. Actual results could vary from the estimates that were
used.
Income Taxes
The Company accounts for income taxes in accordance with the asset and liability
method. Deferred income tax assets and liabilities are computed periodically for
differences between the financial statement and tax bases of assets and
liabilities that will result in taxable or deductible amounts in the future
based on enacted tax laws and rates applicable to the periods in which the
differences are expected to affect taxable income. Valuation allowances are
established when necessary to reduce deferred tax assets to the amount expected
to be realized. Income tax expense is the tax payable or refundable for the
period plus or minus the change during the period in deferred tax assets and
liabilities.
Cash and Cash Equivalents
The Company considers cash in banks, certificates of deposit and other
highly-liquid investments with maturities of three months or less, when
purchased, to be cash and cash equivalents for purposes of the Statements of
Cash Flows.
Proprietary Rights
The proprietary rights are being amortized using the straight-line method over
three years, their estimated useful life.
Equipment
Equipment is stated at historical cost. Expenditures which increase values or
extend useful lives are capitalized. Routine maintenance and repairs are charged
to expense when incurred.
Depreciation is provided for using the straight-line method over five years, the
estimated useful life.
NOTE C - GOING CONCERN UNCERTAINTY
The Company is currently in the development stage and has generated no revenues.
The Company has incurred approximately $26,401 in expenses since its inception
including $23,129 of services provided by its founder paid for through the
initial issuance of common stock.
F-8
<PAGE> 24
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE FINANCIAL STATEMENTS
NOTE C - GOING CONCERN UNCERTAINTY (Continued)
The ability of the Company to continue as a going concern is dependent on its
ability to raise the necessary capital to finance the implementation of its
business plan. The financial statements do not include any adjustments to
reflect the possible effects on the recoverability and classification of assets
or classification of liabilities which may result from the possible inability of
the Company to continue as a going concern.
NOTE D - PAYABLE TO RELATED PARTY AND PROPRIETARY RIGHTS
The Company purchased proprietary rights from a related company (Consumer Data
Solutions Corp. or CDS) which has the same majority shareholder as
ETELCHARGE.COM, INC. for $116,500 payable under a repayment agreement which
requires monthly payments ranging from $7,500 to $8,500 through January 2001.
The repayment agreement is unsecured and does not bear interest. In addition,
the agreement requires the Company to pay CDS for a period of 99 years, 3% of
any and all income, less customary and normal business expenses associated with
the usage of proprietary rights (which equates to net income of the Company)
beginning January 1, 2001.
As these rights were purchased from a related entity, the asset was recorded by
the Company at the basis of CDS. Accordingly, the asset was recorded at $63,000
with the difference between the recorded cost and the payable to related party
being reflected as a contra to additional paid-in capital.
NOTE E - STOCKHOLDERS' EQUITY
During November and December 1999, the Company raised $49,000 in cash proceeds
through a private placement offering.
Upon inception, the Company issued 7,712,970 shares of common stock to its
President and Chief Executive Officer in exchange for services. In addition, the
Company may issue up to 200,000 additional shares annually to this officer over
the term of a five-year service contract based upon performance reviews. The
stock issuance will be prorated and the agreement to issue the shares will be
terminated once the Company raises sufficient capital.
NOTE F - INCOME TAXES
Deferred tax assets and liabilities at December 31, 1999, consist of the
following:
<TABLE>
<S> <C>
Current deferred tax asset $ 957
Non-current deferred tax asset 798
Valuation allowance (1,755)
-----------
$ --
===========
</TABLE>
The current deferred tax asset results from capitalized proprietary rights,
which are amortized for income tax purposes using a different life than for
financial reporting purposes. The non-current deferred tax asset results from
the net operating loss carryforward of $2,159 at December 31, 1999, which
expires in 2015. A valuation allowance has been recorded to offset all of the
net deferred tax assets due to the uncertainty of generating future taxable
income.
F-9
<PAGE> 25
ETELCHARGE.COM, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO THE FINANCIAL STATEMENTS
NOTE F - INCOME TAXES (Continued)
The Company's income tax expense for the period from June 7, 1999 (inception) to
December 31, 1999, differed from the statutory federal rate of 34 percent as
follows:
<TABLE>
<S> <C>
Statutory rate applied to loss before income taxes $ (8,976)
Items not deductible for income tax purposes 7,867
Increase (decrease) in income taxes resulting from:
State income taxes, net of federal income tax effect (646)
Increase in valuation allowance 1,755
----------
Income tax expense $ --
==========
</TABLE>
NOTE G - COMMITMENTS AND CONTINGENCIES
Effective December 28, 1999, the Company entered into a two-year employment
contract with an employee which requires the Company to issue 50,000 shares of
common stock as annual compensation. The Company may issue up to 5,000
additional shares of common stock to the employee based upon performance
reviews. The employee also has the right to purchase additional shares at a 15%
discount off the market price. In the event of termination, the stock issuance
will be prorated based on the portion of the two-year term served.
The Company also has a one-year employment contract with an employee to issue
10,000 shares of common stock as compensation. The stock issuance will be
prorated and the agreement to issue the shares will be terminated once the
Company raises sufficient funds.
The Company has a business relationship with a charity organization that
requires the Company to contribute a minimum of $.25 to the charity per revenue
generating transaction.
NOTE G - UNAUDITED INTERIM FINANCIAL INFORMATION
The unaudited interim financial information as of March 31, 2000 and for the
three months ended March 31, 2000 has been prepared on the same basis as the
audited financial statements. In the opinion of management, such unaudited
information includes all adjustments (consisting only of normal recurring
accruals) necessary for a fair presentation of this interim information.
Operating results for the three months ended March 31, 2000 are not necessarily
indicative of the results that may be expected for the entire year ending
December 31, 2000.
Issue of Common Stock
During the three months ended March 31, 2000, the Company issued an additional
306,667 shares of common stock for $30,000.
F-10
<PAGE> 26
SIGNATURES
In accordance with Section 12 of the Securities and Exchange Act of
1934, the registrant caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized
eTelecharge.com, Inc.
Date: April 27, 2000 By /s/ Carl O. Sherman
-----------------------------------------
Carl O. Sherman, President
<PAGE> 27
PART III
ITEM 1. INDEX TO EXHIBITS
2.0 Articles of Incorporation and Bylaws.
6.0 Material Contracts with AT&T.
E-1
<PAGE> 1
EXHIBIT 2.0
ARTICLES OF INCORPORATION
[STAMP] OF
ETELCHARGE.COM
The undersigned proposes to form a corporation under the laws of the State of
Nevada, relating to private corporations, and to that end hereby adopts
articles of incorporation as follows:
ARTICLE ONE
NAME
The name of the corporation is ETELCHARGE.COM.
ARTICLE TWO
LOCATION
The registered office of this corporation is at 318 North Carson Street, Suite
214, City of Carson City, State of Nevada, 89701. The resident agent is State
Agent and Transfer Syndicate, Inc.
ARTICLE THREE
PURPOSES
This corporation is authorized to carry on any lawful business or enterprise.
ARTICLE FOUR
CAPITAL STOCK
The amount of the total authorized capital stock of this corporation is $30,000
as 10,000,000 shares each with a par value of three tenths of a cent ($0.003).
Such shares are non-assessable.
ARTICLE FIVE
DIRECTORS
The initial governing board of this corporation shall be styled directors and
shall have one member. The name and address of the member of the first board of
directors is:
Carl O. Sherman
318 North Carson Street, Suite 214
Carson City NV 89701
1
<PAGE> 2
ARTICLE SIX
ELIMINATING PERSONAL LIABILITY
Officers and directors shall have no personal liability to the corporation or
its stockholders for damages for breach of fiduciary duty as an officer or
director. This provision does not eliminate or limit the liability of an
officer or director for acts or omissions which involve intentional misconduct,
fraud or a knowing violation of law or the payment of distributions in
violation of NRS 78.300.
ARTICLE SEVEN
INCORPORATORS
The name and address of the incorporator is: State Agent and Transfer
Syndicate, Inc., 318 North Carson Street, Suite 214, Carson City, Nevada 89701.
ARTICLE EIGHT
PERIOD OF EXISTENCE
The period of existence of this corporation shall be perpetual.
ARTICLE NINE
AMENDMENT OD ARTICLES OF INCORPORATION
The articles of incorporation of the corporation may be amended from time to
time by a majority vote of all shareholders by written ballot in person or by
proxy held at any general or special meeting of shareholders upon lawful notice.
ARTICLE TEN
VOTING OF SHARES
In any election participated in by the shareholders, each shareholder shall
have one vote for each share of stock he owns, either in person or by proxy as
provided by law. Cumulative voting shall not prevail in any election by the
shareholders of this corporation.
IN WITNESS WHEREOF the undersigned, STATE AGENT AND TRANSFER SYNDICATE, INC.,
for the purpose of forming a corporation under the laws of the State of Nevada,
does make,
2
<PAGE> 3
file and record these articles, and certifies that the facts herein stated are
true; and I have accordingly hereunto set my hand this day, June 4, 1999.
INCORPORATOR:
/s/ CHER FALK
---------------------------------------
Cher Falk for
State Agent and Transfer Syndicate, Inc.
STATE OF NEVADA
COUNTY OF CARSON CITY
On June 4, 1999, Cher Falk personally appeared before me, a notary public, and
executed the above instrument.
[SEAL] /s/ LIANA COMEAUX
---------------------------------------
SIGNATURE OF NOTARY
CERTIFICATE OF ACCEPTANCE
OF APPOINTMENT BY RESIDENT AGENT
State Agent and Transfer Sydicate, Incorporated hereby certifies that on June
4, 1999, we accepted appointment as Resident Agent for the above named
corporation in accordance with Sec. 78.090, NRS 1957.
IN WITNESS WHEREOF, I have hereunto set my hand this June 4, 1999.
/s/ CHER FALK
---------------------------------------
Cher Falk for
State Agent and Transfer Syndicate, Inc.
3
<PAGE> 4
BYLAWS
OF
ETELCHARGE.COM, INC
A NEVADA CORPORATION
These are Bylaws of eTELCHARGE.com, Inc., a Nevada corporation (the
"corporation").
ARTICLE 1
OFFICES
1.1 Registered Office. The registered office of ETELCHARGE.COM, INC. (the
"corporation") shall be located at 407 N. Cedar Ridge, Suite 342, Duncanville,
Texas 75116.
1.2 Locations of Offices. The corporation may also have offices at such
other places both within and without the states of Nevada, and Texas as the
board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE 2
STOCKHOLDERS
2.1 Annual Meeting. The annual meeting of the stockholders shall be held
within 180 days after the end of the corporation's fiscal year at such time as
is designated by the board of directors and as is provided for in the notice of
the meeting. If the election of directors shall not be held on the day
designated herein for the annual meeting of the stockholders or at any
adjournment thereof, the board of directors shall cause the election to be held
at a special meeting of the stockholders as soon thereafter as may be
convenient.
2.2 Special Meeting. Special meeting of the stockholders may be called at
any time in the manner provided in the Articles of Incorporation. At any time
special meeting of the stockholders, only such business shall be conducted as
shall have been stated in the notice of such special meeting.
2.3 Place of Meetings. The board of directors may designate any place,
either within or without the state of incorporation, as the place of meeting for
any annual meeting or for any special meeting called by the board of director. A
waiver of notice signed by all stockholders entitled to vote at a meeting may
designate any place, either within or without the state of incorporation, as the
place for the holding of such meeting. If no designation is made or if a special
meeting be otherwise called, the place of meeting shall be at the principal
office of the corporation.
2.4 Notice of Meetings. The secretary or assistant secretary, if any, shall
cause notice of the time, place, and purpose or purpose of all meetings of the
stockholders (whether annual or special), to be mailed at least 10 but not more
than 60 days prior to the meeting, to each stockholder of record entitled to
vote.
2.5 Waiver of Notice. Any stockholder may waive notice of any meeting of
stockholders (however called or noticed, whether or not called or noticed, and
whether before, during, or after the meeting) by signing a written waiver of
notice or a consent to the holding of such meeting or any approval of the
minutes thereof. Attendance at a meeting, in person or by proxy, shall
constitute waiver of all defects of notice regardless of whether waiver,
consent, or approval is signed or any objections are made, unless attendance is
solely for the purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. All such waivers, consents, or approvals shall be made a part of the
minutes of the meeting.
2.6 Fixing Records Date. For the purpose of (i) determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting; (ii) stockholders entitled to receive payment of any dividend
or other distribution or allotment of any rights or entitled to exercise any
rights in respect to any change, conversion, or exchange of stock; or (iii) for
the purpose of any other lawful action, the board of directors may fix in
advance a date as the record date for any such determination of stockholders,
such date in any case to be not more than 60 days
4
<PAGE> 5
and, in case of a meeting of stockholders, not less than 10 days prior to the
date on which the particular action requiring such determination of stockholders
is to be taken. If no record date is fixed for the determination of stockholders
entitled to notice of or to vote as a meeting, the day preceding the date on
which notice of meeting is mailed shall be the record date. For any other
purpose, the record date shall be the close of business on the date on which the
resolution of the board of directors pertaining thereto is adopted. When a
determination of stockholders entitled to vote at any meeting of stockholders
has been made as provided in this section, such determination shall apply to any
adjournment thereof. Failure to comply with this section shall not affect the
validity of any action taken at a meeting of stockholders.
2.7 Voting Lists. The officers of the corporation shall cause to be
prepared from the stock ledger at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the principal
executive office of the corporation. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present. The original stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by this section, or the books of the corporation, or
to vote in person or by proxy at any meeting of stockholders.
2.8 Quorum. Unless otherwise provided in the Articles of Incorporation,
stock representing a majority of the voting power of all outstanding stock of
the corporation entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such reconvened
meeting at which a quorum is present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than 30 days or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.9 Vote Required. When a quorum is present at any meeting, the vote of the
holders of stock having a majority of the voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one on which by express provision of the statutes of the
state of Nevada or of the Articles of Incorporation a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
2.10 Voting of Stock. Unless otherwise provided in the Articles of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, subject to the modification of
such voting rights of any class or classes of the corporation's capital stock by
the certificate or incorporation.
2.11 Proxies. At each meeting of the stockholders, each stockholder
entitled to vote shall be entitled to vote in person or by proxy; provided,
however, that the right to vote by proxy shall exist only in case the instrument
authorizing such proxy to act shall have been executed in writing by the
registered holder or holders of such stock, as the case may be, as shown on the
stock ledger of the corporation or by his attorney thereunto duly authorized in
writing. Such instrument authorizing a proxy to act shall be delivered at the
beginning of such meeting to the secretary of the corporation or to such other
officer or person who may, in the absence of the secretary, be acting as
secretary of the meeting. In the event that any such instrument shall designate
two or more persons to act as proxy, a majority of such persons present at the
meeting, or if only one be present,
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that one shall (unless the instrument shall otherwise provide) have all of the
powers conferred by the instrument on all persons so designated. Persons holding
stock in a fiduciary capacity shall be entitled to vote the stock so held, and
the persons whose shares are pledged shall be entitled to vote, unless the
transfer by the pledgor in the books and records of the corporation shall have
expressly empowered the pledgee to vote thereon, in which case the pledgee, or
his proxy, may represent such stock and vote thereon. No proxy shall be voted or
acted on after three years from its date, unless the proxy provides for a longer
period.
2.12 Nomination of Directors. Only persons who are nominated in accordance
with the procedures set forth in this section shall be eligible for election as
directors. Nominations of persons for election to the board of directors of the
corporation may be made at a meeting of stockholders at which directors are to
be elected only (a) by or at the direction of the board of directors or (b) by
any stockholder of the corporation entitled to vote for the election of
directors at a meeting who complies with the notice procedures set forth in this
section. Such nominations, other than those made by or at the direction of the
board of directors, shall be made by timely notice in writing to the secretary
of the corporation. To be timely, a stockholder's notice must be delivered or
mailed to and received at the principal executive offices of the corporation not
less than 30 days prior to the date of the meeting; provided, in the event that
less than 40 days' notice of the date of the meeting is given or made to
stockholders, to be timely, a stockholder's notice must be so received not later
than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed. Such stockholder's notice shall
set forth (a) as to each person whom such stockholder proposed to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to regulation 14A
under the Securities Exchange Act of 1934, as amended (including each such
person's written consent to serve as a director if elected); and (b) as to the
stockholder giving the notice (i) the name and address of such stockholder as it
appears on the corporation's books, and (ii) the class and number of shares of
the corporation's capital stock that are beneficially owned by such stockholder.
At the request of the board of directors, any person nominated by the board of
directors for election as a director shall furnish to the secretary of the
corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in accordance with
the provisions of this section. The officer of the corporation or other person
presiding at the meeting shall, if the facts so warrant, determine and declare
to the meeting that a nomination was not made in accordance with such
provisions, and if such officer should so determine, such officer shall so
declare to the meeting, and the defective nomination shall be disregarded.
2.13 Inspectors of Election. There shall be appointed two inspectors of the
vote. Such inspectors shall first take and subscribe an oath or affirmation
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of their ability. Unless appointed in
advance of any such meeting by the board of directors, such inspectors shall be
appointed for the meeting by the presiding officer. No director or candidate for
the officer of director shall be appointed as such inspector. Such inspectors
shall be responsible for tallying and certifying each vote required to be
tallied and certified by them as provided in the resolution of the board of
directors appointing them or in their appointment by the person presiding at
such meeting, as the case may be.
2.14 Election of Directors. At all meetings of the stockholders at which
directors are to be elected, except as otherwise set forth in any preferred
stock designation (as defined in the Articles of Incorporation) with respect to
the right of the holders of any class or series of preferred stock to elect
additional directors under specified circumstances, directors shall be elected
by a plurality of the votes cast at the meeting. The election need not be by
ballot unless any stockholder so demands before the voting begins. Except as
otherwise provided by law, the Articles of Incorporation, any preferred stock
designation, or these bylaws, all matters other than the election of directors
submitted to the stockholders at any meeting shall be decided by a majority of
the votes cast with respect thereto.
2.15 Business at Annual Meeting. At any annual meeting of the stockholders,
only such business shall
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be conducted as shall have been brought before the meeting (a) by or at the
direction of the board of directors or (b) by any stockholder of the corporation
who is entitled to vote with respect thereto and who complies with the notice
procedures set forth in this section. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the secretary of the corporation. To be timely, a
stockholder's notice shall be delivered or mailed to and received at the
principal executive offices of the corporation not less than 30 days prior to
the date of the annual meeting; provided, in the event that less than 40 days'
notice of the date of the meeting is given or made to stockholders, to be
timely, a stockholder's notice shall be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the annual meeting was mailed. A stockholder's notice to the secretary shall set
forth as to each matter such stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the stockholder proposing such business, (c) the class and number of shares of
the corporation's capital stock that are beneficially owned by such stockholder,
and (d) any material interest of such stockholder in such business.
Notwithstanding anything in these bylaws to the contrary, no business shall be
brought before or conducted at an annual meeting except in accordance with the
provisions of this section. The officer of the corporation or other person
presiding at the annual meeting shall, if the facts so warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with such provisions, and if such presiding officer should so
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with such provisions and if such presiding
officer should so determine, such presiding officer shall so declare to the
meeting, and any such business so determined to be not properly brought before
the meeting shall not be transacted.
2.16 Business at Special Meeting. At any special meeting of the
stockholders, only such business shall be conducted as shall have been stated in
the notice of such special meeting.
2.17 Written Consent to Action by Stockholders. Unless otherwise provided
in the Articles of Incorporation, any action required to be taken at any annual
or special meeting of stockholders of the corporation, or any action which may
be taken at any annual or special meeting of such stockholders may be taken
without a meeting, without prior notice, and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporation action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
2.18 Procedure for Meetings. Meeting of the stockholders shall be conducted
pursuant to such reasonable rules of conduct and protocol as the board of
directors may prescribe or, if no such rules are prescribed, in accordance with
the most recent published edition of ROBERT'S RULES OF ORDER.
ARTICLE 3
DIRECTORS
3.1 General Powers. The business of the corporation shall be managed under
the direction of its board of directors, which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the Articles of Incorporation or by these bylaws directed or required to be
exercised or done by the stockholders.
3.2 Number, Term, and Qualifications. The number of directors which shall
constitute the board, subject to the limitations set forth in the Articles of
Incorporation, shall be determined by resolution of a majority of the total
number of directors if there were no vacancies (the "Whole Board") or by the
stockholders at the annual meeting of the stockholders or a special meeting
called for such purpose, except as provided in
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section 3.3 of this article, and each director elected shall hold office until
his successor is elected and qualified. Directors need not be residents of the
state of incorporation or stockholders of the corporation. Initially the
corporation shall have seven directors.
3.3 Vacancies and Newly Created Directorships. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum of the Whole Board, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and qualified. If there are no directors in office,
then an election of directors may be held in the manner provided by statute.
3.4 Regular Meetings. A regular meeting of the board of directors shall be
held without other notice than this bylaw immediately following and at the same
place as the annual meeting of stockholders. The board of directors may provide
by resolution the time and place, either within or without the state of
incorporation, for the holding of additional regular meetings without other
notice than such resolution.
3.5 Special Meetings. special meetings of the board of directors may be
called by or at the request of the president, vice president, or any two
directors. The person or persons authorized to call special meetings of the
board of directors may fix any place, either within or without the state of
incorporation, as the place for holding any special meeting of the board of
directors called by them. 3.6 Meetings by Telephone Conference Call. Members of
the board of directors may participate in a meeting of the board of directors or
a committee of the board of directors by means of conference telephone or
similar communication equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
3.7 Notice. Notice of any special meeting shall be given at least 72 hours
prior thereto by written notice delivered personally or sent by facsimile
transmission confirmed by registered mail or certified mail, postage prepaid, or
by overnight courier to each director. Each director shall register his or her
address and telephone number(s) with the secretary for purpose of receiving
notices. Any such notice shall be deemed to have been given as of the date so
personally delivered or sent by facsimile transmission or as of the day
following dispatch by overnight courier. Any director may waive notice of any
meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting solely for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. An entry of the service of notice
given in the manner and at the time provided for in this section may be made in
the minutes of the proceedings of the board of directors, and such entry, if
read and approved at a subsequent meeting of the board of directors, shall be
conclusive on the issue of notice.
3.8 Quorum. A majority of the Whole Board shall constitute a quorum for the
transaction of business at any meeting of the board of directors, provided, that
the directors present at a meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors if any
action taken is approved by a majority of the required quorum for such meeting.
If less than a majority is present at a meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice.
3.9 Manner of Acting. The act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the board of directors,
and individual directors shall have no power as such.
3.10 Compensation. By resolution of the board of directors, the directors
may be paid their expenses, if any, of attendance at each meeting of the board
of directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
3.11 Presumption of Assent. A director of the corporation who is present at
a meeting of the board of directors at which action on any corporate matter is
taken shall be presumed to have assented to the action
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taken unless his dissent shall be entered in the minutes of the meeting, unless
he shall file his written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof, or unless he shall
forward such dissent by registered or certified mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
3.12 Resignations. A director may resign at any time by delivering a
written resignation to either the president, a vice president, the secretary, or
assistant secretary, if any. The resignation shall become effective on giving of
such notice, unless such notice specifies a later time for the effectiveness of
such resignation.
3.13 Written Consent to Action by Directors. Any action required to be
taken at a meeting of the directors of the corporation or any other action which
may be taken at a meeting of the directors or of a committee, may be taken
without a meeting, if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors, or all of the members of the committee,
as the case may be. Such consent shall have the same legal effect as a unanimous
vote of all the directors or members of the committee. Removal. Subject to any
limitations set forth in the Articles of Incorporation, at meeting expressly
called for that purpose, one or more directors may be removed by a vote of a
majority of the shares of outstanding stock of the corporation entitled to vote
at an election of directors.
ARTICLE 4
OFFICERS
4.1 Number. The officers of the corporation shall be a president, one
or more vice presidents, as shall be determined by resolution of the board of
directors, a secretary, a treasurer, and such other officers as may be appointed
by the board of directors. The board of directors may elect, but shall not be
required to elect, a chairman of the board, and the board of directors may
appoint a general manager.
4.2 Election, Term of Office, and Qualifications. The officers shall be
chosen by the board of directors annually at its annual meeting. In the event of
failure to choose officers at an annual meeting of the board of directors,
officers may be chosen at any regular or special meeting of the board of
directors. Each such officer (whether chosen at an annual meeting of the board
of directors to fill a vacancy or otherwise) shall hold his office until the
next ensuing annual meeting of the board of directors and until his successor
shall have been chosen and qualified, or until his death until his resignation
or removal in the manner provided in these bylaws. Any one person may hold any
two or more of such offices, except that the president shall not also be the
secretary. No person holding two or more offices shall execute any instrument in
the capacity of more than one office. The chairman of the board, if any, shall
be and remain director of the corporation during the term of his office. No
other officer need be a director.
4.3 Subordinate Officers. The board of directors from time to time may
appoint such other officers or agents as it may deem advisable, each of whom
shall have such title, hold office for such period, have such authority, and
perform such duties as the board of directors from time to time may determine.
The board of directors from time to time may delegate to any officer or agent
the power to appoint any such subordinate officer or agents and to prescribe
their respective titles, terms of office, authorities, and duties. Subordinate
officers need not be stockholders or directors.
4.4 Resignations. Any officer may resign at any time by delivering a
written resignation to the board of directors, the president, or the secretary.
Unless otherwise specified therein, such resignation shall take effect on
delivery.
4.5 Removal. Any officer may be removed from office at any special
meeting of the board of directors called for that purpose or at a regular
meeting, by the vote of a majority of the directors, with or without cause. Any
officer or agent appointed in accordance with the provisions of section 4.3
hereof may also be removed,
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either with or without cause, by any officer on whom such power of removal shall
have been conferred by the board of directors.
4.6 Vacancies and Newly Created Offices. If any vacancy shall occur in
any office by reason of death, resignation, removal, disqualification, or any
other cause or if a new office shall be created, then such vacancies or newly
created offices may be filled by the board of directors at any regular of
special meeting.
4.7 The Chairman of the Board. The chairman of the board, if there be
such an officer, shall have the following powers and duties:
He shall preside at all stockholders' meetings;
He shall preside at all meetings of the board of directors; and
He shall be a member of the executive committee, if any.
4.8 The Chief Executive Officer. The chief executive officer of the
corporation shall have the same powers and duties as the president, as described
below, and, in addition, shall have such powers and duties as may be directed by
the board of directors of the corporation from time to time.
4.9 The President. The president shall have the following powers and
duties:
He shall be the chief executive officer of the corporation and, subject
to the direction of the board of directors, shall have general charge of the
business, affairs, and property of the corporation and general supervision over
its officers, employees, and agents;
If no chairman of the board has been chosen or if such officer is
absent or disabled, he shall preside at meetings of the stockholders and board
of directors;
He shall be a member of the executive committee, if any;
He shall be empowered to sign certificates representing stock of the
corporation, the issuance of which shall have been authorized by the board of
directors; and
He shall have all power and perform all duties normally incident to the
office of a president of a corporation and shall exercise such other powers and
perform such other duties as from time to time may be assigned to him by the
board of directors.
4.10 The Vice-Presidents. The board of directors may, from time to
time, designate and elect one or more vice-presidents, one of whom may be
designated to serve as executive vice-president. Each vice-president shall have
such powers and perform such duties as from time to time may be assigned to him
by the board of directors or the president. At the request or in the absence or
disability of the president, the executive-vice president or, in the absence or
disability of the executive vice-president, the vice-president designated by the
board of directors or (in the absence of such designation by the board of
directors) by the president, as senior vice-president, may perform all the
duties of the president, and when so acting, shall have all the powers of, and
be subject to all the restrictions on, the president.
4.11 The Secretary. The secretary shall have the following powers and
duties:
He shall keep or cause to be kept a record of all of the proceedings of
the meetings of the stockholders and of the board of directors in books provided
for that purpose;
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He shall cause all notices to be duly given in accordance with the
provisions of these bylaws and as required by statute;
He shall be the custodian of the records and of the seal of the
corporation, and shall cause such seal (or a facsimile thereof) to be affixed to
all certificates representing stock of the corporation prior to the issuance
thereof and to all instruments, the execution of which on behalf of the
corporation under its seal shall have been duly authorized in accordance with
these bylaws, and when so affixed, he may attest the same;
He shall see that the books, reports, statements, certificates, and
other documents and records required by statute are properly kept and filed;
He shall have charge of the stock ledger and books of the corporation
and cause such books to be kept in such manner as to show at any time the amount
of the stock of the corporation of each class issued and outstanding, the manner
in which and the time when such stock was paid for, the names alphabetically
arranged and the addresses of the holders of record thereof, the amount of stock
held by each older and time when each became such holder of record; and he shall
exhibit at all reasonable times to any director, on application, the original or
duplicate stock ledger. He shall cause the stock ledger referred to in section
6.4 hereof to be kept and exhibited at the principal office of the corporation,
or at such other place as the board of directors shall determine, in the manner
and for the purpose provided in such section;
He shall be empowered to sign certificates representing stock of the
corporation, the issuance of which shall have been authorized by the board of
directors; and
He shall perform in general all duties incident to the office of
secretary and such other duties as are given to him by these bylaws or as from
time to time may be assigned to him by the board of directors or the president.
4.12 The Treasurer. The treasurer shall have the following powers and
duties:
He shall have charge and supervision over and be responsible for the
monies, securities, receipts, and disbursements of the corporation;
He shall cause the monies and other valuable effects of the corporation
to be deposited in the name and to the credit of the corporation in such banks
or trust companies or with such banks or other depositories as shall be selected
in accordance with section 4.3 hereof;
He shall cause the monies of the corporation to be disbursed by checks
or drafts (signed as provided in section 5.4 hereof) drawn on the authorized
depositories of the corporation, and cause to be taken and preserved property
vouchers for all monies disbursed;
He shall render to the board of directors or the president, whenever
requested, a statement of the financial condition of the corporation and of all
of his transactions as treasurer, and render a full financial report at the
annual meeting of the stockholders, if called on to do so;
He shall cause to be kept correct books of account of all the business
and transactions of the corporation and exhibit such books to any directors on
request during business hours;
He shall be empowered from time to time to require from all officers or
agents of the corporation reports or statements giving such information as he
may desire with respect to any and all financial transactions of the
corporation;
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He shall perform in general all duties incident to the office of
treasurer ad such other duties as are give to him by these bylaws or as from
time to time may be assigned to him by the board of directors or the president;
and
He shall, in the absence of the designation to the contrary by the
board of directors, act as the chief financial officer and/or principal
accounting officer of the corporation.
4.13 Salaries. The salaries or other compensation of the officers of
the corporation shall be fixed from time to time by the board of directors,
except that the board of directors may delegate to any person or group of
persons the power to fix the salaries or other compensation of any subordinate
officers or agents appointed in accordance with the provisions of section 4.3
hereof. no officer shall be prevented from receiving any such salary or
compensation by reason of the fact that he is also a director of the
corporation.
4.14 Surety Bonds. In case the board of directors shall so require, any
officer or agent of the corporation shall execute to the corporation a bond in
such sums and with such surety or sureties as the board of directors may direct,
conditioned on the faithful performance of his duties to the corporation,
including responsibility for negligence and for the accounting of all property,
monies, or securities of the corporation which may come into his hands.
ARTICLE 5
EXECUTION OF INSTRUMENTS, BORROWING OF MONEY,
AND DEPOSIT OF CORPORATE FUNDS
5.1 Execution of Instruments. Subject to any limitation contained in
the Articles of Incorporation or these bylaws, the president or any
vice-president may, in the name and on behalf of the corporation, execute and
deliver any contract or other instrument authorized in writing by the board of
directors. The board of directors may, subject to any limitation contained in
the Articles of Incorporation or in these bylaws, authorize in writing any
officer or agent to execute and deliver any contract or other instrument in the
name and on behalf of the corporation; any such authorization may be general or
confined to specific instances.
5.2 Loans. No loan or advance shall be contracted on behalf of the
corporation, no negotiable paper or other evidence of its obligation under any
loan or advance shall be issued in its name, and no property of the corporation
shall be mortgaged, pledged, hypothecated, transferred, or conveyed as security
for the payment of any loan, advance, indebtedness, or liability of the
corporation, unless and except as authorized by the board of directors. Any such
authorization may be general or confined to specific instances.
5.3 Deposits. All monies of the corporation not otherwise employed
shall be deposited form time to time to its credit in such banks or trust
companies or with such bankers or other depositories as the board of directors
may select or as from time to time may be selected by any officer or agent
authorized to do so by the board of directors.
5.4 Checks, Drafts, Etc. All notes, drafts, acceptances, checks,
endorsements, and, subject to the provisions of these bylaws, evidences of
indebtedness of the corporation shall be signed by such officer or officers or
such agent or agents of the corporation and in such manner as the board of
directors from time to time may determine. Endorsements for deposits to the
credit of the corporation in any of its duly authorized depositories shall be in
such manner as the board of directors from time to time may determine.
5.5 Bonds and Debentures. Every bond or debenture issued by the
corporation shall be evidenced by an appropriate instrument which shall be
signed by the president or a vice president and by the secretary and sealed with
the seal of the corporation. The seal may be a facsimile, engraved or printed.
Where such bond or debenture is authenticated with the manual signature of an
authorized officer of the corporation or other trustee
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designated by the indenture of trust or other agreement under which such
security is issued, the signature of any of the corporation's officers named
thereon may be a facsimile. in case any officer who signed or whose facsimile
signature has been used on any such bond or debenture shall cease to e an
officer of the corporation for any reason before the same has been delivered by
the corporation, such bond or debenture may nevertheless be adopted by the
corporation and issued and delivered as through the person who signed it or
whose facsimile signature has been used thereon had not ceased to be such
officer.
5.6 Sale, Transfer, Etc. of Securities. Sales, transfers, endorsements,
and assignments of stocks, bonds, and other securities owned by or standing in
the name of the corporation and the execution and delivery on behalf of the
corporation of any and all instruments in writing incident to any such sale,
transfer, endorsement, or assignment shall be effected by the president or by
any vice-president and the secretary or assistant secretary, or by any officer
or agent thereunto authorized by the board of directors.
5.7 Proxies. proxies to vote with respect to stock of other
corporations owned by or standing in the name of the corporation shall be
executed and delivered on behalf of the corporation or by any officer or agent
thereunder authorized by the board of directors.
ARTICLE 6
CAPITAL STOCK
6.1 Stock Certificates. Every holder of stock in the corporation shall
be entitled to have a certificate, signed by the president or any vice-president
and the secretary or assistant secretary, and sealed with the seal (which may be
a facsimile, engraved or printed) of the corporation, certifying the number and
kind, class, or series of stock owned by him in the corporation; provided,
however, that where such a certificate is countersigned by (a) a transfer agent
or an assistant transfer agent, or (b) registered by a registrar, the signature
of any such president, vice-president, secretary, or assistant secretary may be
a facsimile. In case any officer who shall have signed or whose facsimile
signature or signatures shall have been used on any such certificate shall cease
to be such officer of the corporation, for any reason, before the delivery of
such certificate by the corporation, such certificate may nevertheless be
adopted by the corporation and be issued and delivered as though the person who
signed it or whose facsimile signature or signatures shall have been used
thereon has not ceased to be such officer. Certificates representing stock of
the corporation shall be in such form as provided by the statutes of the state
of incorporation. There shall be entered on the stock books of the corporation
at the time of issuance of each share, the number of the certificate issued, the
name and address of the person owning the stock represented thereby, the number
and kind, class, or series of such stock, and the date of issuance thereof.
Every certificate exchanged or returned to the corporation shall be marked
"canceled" with the date of cancellation.
6.2 Transfer of Stock. Transfers of stock of the corporation shall be
made on the books of the corporation by the holder of record thereof or by his
attorney thereunto duly authorized by a power of attorney duly executed in
writing and filed with the secretary of the corporation or any of its transfer
agents, and on surrender of the certificate or certificates, properly endorsed
or accompanied by proper instruments or transfer, representing such stock.
Except as provided by law, the corporation and transfer agents and registrars,
if any, shall be entitled to treat the holder of record of any stock as the
absolute owner thereof for all purposes, and accordingly shall not be bound to
recognize any legal, equitable, or other claim to or interest in such stock on
the part of any other person whether or not it or they shall have express or
other notice thereof.
6.3 Regulations. Subject to the provisions of the Articles of
Incorporation, the board of directors may make such rules and regulations as
they may deem expedient concerning the issuance, transfer, redemption, and
registration of certificates for stock of the corporation.
6.4 Maintenance of Stock Ledger at Principal Place of Business. A stock
ledger (or ledgers where more than one kind, class, or series of stock is
outstanding) shall be kept at the principal place of business of the
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corporation, or at such other place as the board of directors shall determine,
containing the names alphabetically arranged of original stock holders of the
corporation, their addresses, their interest, the amount paid on their shares,
and all transfers thereof and the number and class of stock held by each. Such
stock ledgers shall at all reasonable hours be subject to inspection by persons
entitled by law to inspect the same.
6.5 Transfer Agents and Registrars. The board of directors may appoint
one or more transfer agents and one or more registrars with respect to the
certificates representing stock of the corporation and may require all such
certificates to bear the signature of either or both. The board of directors may
from time to time define the respective duties of such transfer agents and
registrars. No certificate for stock shall be valid until countersigned by a
transfer agent, if at the date appearing thereon the corporation had a transfer
agent for such stock, and until registered by a registrar, if at such date the
corporation had a registrar for such stock.
6.6 Closing of Transfer Books and Fixing of Record Date.
The board of directors shall have power to close the stock ledgers of
the corporation for a period of not to exceed 60 days preceding the date of any
meeting of stockholders, the date for payment of any dividend, the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining the
consent of stockholders for any purpose.
In lieu of closing the stock ledgers as aforesaid, the board of
directors may fix in advance a date, not less than 10 days and not exceeding 60
days preceding the date of any meeting of stockholders, the date for the payment
of any dividend, the date for the allotment of rights, the date when any change
or conversion or exchange of capital stock shall go into effect, a date in
connection with obtaining any such consent, as a record date for the
determination of the stockholders entitled to a notice of, and to vote at, any
such meeting and any adjournment thereof, entitled to receive payment of any
such dividend, to any such allotment of rights, to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent.
If the stock ledgers shall be closed or a record date set for the
purpose of determining stockholders entitled to notice of, or to vote at, a
meeting of stockholders, such books shall be closed for or such record date
shall be at least ten days immediately preceding such meeting.
6.7 Lot or Destroyed Certificates. The corporation may issue a new
certificate for stock of the corporation in place of any certificate theretofore
issued by it, alleged to have been lost or destroyed, and the board of directors
may, in its discretion, require the owner of the lost or destroyed certificate
or his legal representatives to give the corporation a bond in such form and
amount as the board of directors may direct and with such surety or sureties as
may be satisfactory to the board, and to indemnify the corporation and its
transfer agents and registrars, if any, against any claims that may be made
against it or any such transfer agents and registrars, if any, against any
claims that may be made against it or any such transfer agent or registrar on
account of the issuance of such new certificate. A new certificate may be issued
without requiring any bond when, in the judgment of the board of directors, it
is proper to do so.
ARTICLE 7
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
7.1 Executive Committee. the board of directors, by resolution adopted
by a majority of the Whole Board, may appoint from its membership an executive
committee of not less than three members (whose members shall include the
chairman of the board if any, and the president, one of whom shall act as
chairman of the executive committee, as the board may designate). The board of
directors shall have the power at any time to dissolve the executive committee,
to change the membership thereof, and to fill vacancies thereon. When the board
of directors is not in session, the executive committee shall have and may
exercise all of the powers vested in the board of directors, except the
following powers: to fill vacancies in the board of directors; to
14
<PAGE> 15
declare dividends or other distributions to stockholders; to adopt, amend, or
repeal the Articles of Incorporation or these bylaws' to approve any action that
also requires stockholder approval; to amend or repeal any resolution of the
board of directors which by its express terms is not so amendable or repealable;
to fix the compensation of directors for serving on the board of directors or on
any committee; to adopt an agreement of merger or consolidation under any
provision of applicable law, to recommend to the stockholders the sale, lease,
or exchange of all or substantially all of the Corporation's property and
assets; to recommend to stockholders a dissolution of the Corporation or a
revocation of a dissolution; to recommend to stockholders an amendment of
bylaws; to authorize the issuance of stock (provided that the executive
committee may determine the number of shares of stock not in excess of the
number of authorized to be issued by the board of directors and the amount of
consideration for which such shares shall be issued); and to enter into any
merger into or with another entity as permitted by applicable law.
7.2 Other Committees. The board of directors, by resolution adopted by
a majority of the Whole Board, may appoint such other committees as it may, from
time to time, deem proper and may determine the number of member, frequency of
meetings, and duties thereof.
7.3 Proceedings. The executive committee and such other committees as
may be designated hereunder by the board of directors may fix their own
presiding and recording officer or officers and may meet at such place or
places, at such time or times, and on such notice (or without notice) as it
shall determine from time to time. Each committee may make rules for the conduct
of its business as it shall from time to time deem necessary. It will keep a
record of its proceedings and shall report such proceedings to the board of
directors at the meeting of the board of directors next following.
7.4 Quorum and Manner of Acting. At all meetings of the executive
committee and of such other committees as may be designated hereunder by the
board of directors, the presence of members constituting a majority of the total
authorized membership of the committee shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act of a majority
of the members present at any meeting at which a quorum is present shall be the
act of such committee. The members of the executive committee and of such other
committees as may be designated hereunder by the board of directors shall act
only as a committee, and the individual members thereof shall have no powers as
such.
7.5 Resignations. Any member of the executive committee and of such
other committees as may be designated hereunder by the board of directors may
resign at any time by delivering a written resignation to either the president,
the secretary, or assistant secretary, or to the presiding officer of the
committee of which he is a member, if any shall have been appointed and shall be
in office. Unless otherwise specified therein, such registration shall take
effect on delivery.
7.6 Removal. The board of directors may, by resolution adopted by a
majority of the Whole Board, at any time remove any member of the executive
committee or of any other committee designated by it hereunder either for or
without cause.
7.7 Vacancies. If any vacancy shall occur in the executive committee or
of any other committee designated by the board of directors hereunder, by reason
of disqualification, death, resignation, removal, or otherwise, the remaining
members shall, until the filling of such vacancy, constitute the then total
authorized membership of the committee and continue to act, unless such
committee consisted of more than one member prior to the vacancy or vacancies
and is left with only one member as a result thereof. Such vacancy may be filled
at any meeting of the Whole Board.
7.8 Compensation. The Whole Board may allow a fixed sum and expenses of
attendance to any member of the executive committee, or of any other committee
designated by it hereunder, who is not an active salaried employee of the
corporation for attendance at each meeting of the said committee.
15
<PAGE> 16
ARTICLE 8
INSURANCE AND OFFICER AND DIRECTOR CONTRACTS
8.1 Indemnification: Third-Party Actions. The corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (other than an action by or in
the right of the corporation), by reason of the fact that he is or was a
director or officer of the corporation (and, in the discretion of the board of
directors, may so indemnify a person by reason of the fact that he is or was an
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise), against
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with any such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, ad with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
8.2 Indemnification: Corporate Actions. The corporation shall indemnify
any persons who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director or officer of the
corporation (and, in the discretion of the board of directors, may so indemnify
a person by reason of the fact that he is or was an employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise), against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue, or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
8.3 Determination. To the extent that a director, officer, employee, or
agent of the corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in sections 8.1 and 8.2
hereof, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith. Any other indemnification under
sections 8.1 or 8.2 hereof, unless ordered by a court, shall be made by the
corporation only in the specific case on a determination that indemnification of
the director, officer, employee, or agent is proper in the circumstances because
he has met the applicable standard or conduct set forth in sections 8.1 or 8.2
hereof. Such determination shall be made either (i) by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to such
action, suit, or proceeding, (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in written opinion, or (iii) by the stockholders by a majority
vote of a quorum of stockholders at any meeting duly called for such purpose.
8.4 Advances. Expenses incurred by an officer or director in defending
a civil or criminal action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit, or proceeding on receipt
of an undertaking by or on behalf of such director or officers to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized by this section. Such expenses
incurred by other employees and agents may be so paid on such terms and
conditions, if any, as the board of directors deems appropriate.
16
<PAGE> 17
8.5 Scope of Indemnification. The indemnification and advancement of
expenses provided by, or granted pursuant to, sections 8.1, 8.2 and 8.4:
Shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled, under any
bylaw, agreement, vote of stockholders or disinterested directors, or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office; and
Shall, unless otherwise provided when authorized or ratified, continue
as to a person who ceased to be a director, officer, employee, or agent of the
corporation and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
8.6 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against any
such liability.
8.7 Officer and Director Contracts. No contract or other transaction
between the corporation and one or more of its directors or officers or between
the corporation and any corporation, partnership, association, or other
organization in which one or more of the corporation's directors or officers are
directors, officers, or have a financial interest, is either void or voidable
solely on the basis of such relationship or solely because any such director or
officer is present at or participates in the meeting of the board of directors
or a committee thereof which authorizes the contract or transaction or solely
because the vote or votes of each director or officer are counted for such
purpose, if:
The material facts of the relationship or interest are disclosed or
known to the board of directors or committee and the board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors even though the disinterested directors
be less than a quorum;
The material facts of the relationship or interest is disclosed or
known to the stockholders and they approve or ratify the contract or
transactions in good faith by a majority vote of the shares voted at a meeting
of stockholders called for such purpose or written consent of stockholders
holding a majority of the shares entitled to vote (the votes of the common or
interested directors or officers shall be counted in any such vote of
stockholders); or
The contract or transaction is fair as to the corporation at the time
it is authorized, approved, or ratified by the board of directors, a committee
thereof, or the stockholders.
ARTICLE 9
FISCAL YEAR
The fiscal year of the corporation shall be determined by the board of
directors of the corporation.
ARTICLE 10
DIVIDENDS
The board of directors may from time to time declare, and the
corporation may pay, dividends on its outstanding stock in the manner and on the
terms and conditions provided by the Articles of Incorporation and bylaws.
17
<PAGE> 18
ARTICLE 11
AMENDMENTS
All bylaws of the corporation, whether adopted by the board of
directors or the stockholders, shall be subject to amendment, alteration, or
repeal, and new bylaws may be made, except that:
No bylaw adopted or amended by the stockholders shall be altered or
repealed by the board of directors; and
No bylaw shall be adopted by the board of directors which shall require
more than the stock representing a majority of the voting power for a quorum at
a meeting of stockholders or more than a majority of the votes cast to
constitute action by the stockholders, except where higher percentages are
required by law; provided, however, that
If any bylaw regulating an impending election of directors is adopted
or amended or repealed by the board of directors, there shall be set forth in
the notice of the next meeting of the stockholders for the election of
directors, the bylaws so adopted or amended or repealed, together with a concise
statement of the changes made; and
No amendment, alteration, or repeal of this article XI shall be made
except by the stockholders.
CERTIFICATE OF SECRETARY
The undersigned does hereby certify that she is the secretary
of ETELCHARGE.COM, INC., a corporation duly organized and existing under and
virtue of the laws of the state of Nevada; that the above and foregoing bylaws
of said corporation were duly and regularly adopted as such by the board of
directors of said corporation at a duly convened meeting of the board of
directors of the corporation held on December 30, 1998, and that the above and
foregoing bylaws are now in full force and effect and supersede ad replace any
prior bylaws of the corporation.
DATED this 7th day of June, 1999.
/s/ MICHELLE R. SHERMAN
--------------------------------
Secretary
18
<PAGE> 1
EXHIBIT 6.0
[AT&T LOGO] AT&T MASTER BILLING SERVICES AGREEMENT
AT&T MASTER BILLING SERVICES AGREEMENT NO. 002881MQ
===============================================================================
Customer Name AT&T Corp.
Consumer Data Solutions MultiQuest 900 Services
Customer Contact Name and Phone AT&T Contact Name and Phone
Carl Sherman / 972-298-3800 Mike Davis / 877-886-9881
Customer Address AT&T Office Address
8110 W. Fremont Ave
City, State, Zip Code City, State, Zip Code
Littleton, CO 80128
===============================================================================
The AT&T MULTIQUEST(R) Services ("Billing Services") offered under this
Agreement are as follows (CHECK ONE):
<TABLE>
<S> <C>
[X] AT&T MULTIQUEST(R) Interacter Service [ ] AT&T MULTIQUEST (R) Express 900 Service
[ ] AT&T MULTIQUEST(R) HICAP Service [ ] Other AT&T MULTIQUEST Service
[ ]
------------------------------------------------------
(Indicate Service and attach amendment, if applicable)
</TABLE>
AT&T MULTIQUEST(R) Billing Options (CHECK ONE):
[X] Caller Adjustment Process (CAP) [ ] 60/90 Delay Process
- -------------------------------------------------------------------------------
Additional Customer Programs may be detailed on the Additional Billing Services
Agreement form(s) ONLY when using the same service requested here.
- -------------------------------------------------------------------------------
Initial Customer Program offering descriptions and 900 numbers(s):
------------
900-786-8742 All ready in operations
- -------------------------------------------------------------------------------
900-288-8637
- -------------------------------------------------------------------------------
900 Fundraising / Music Program
- -------------------------------------------------------------------------------
PRESALE #: 141498
--------------------
CALLERS WILL BE BILLED THE FOLLOWING CHARGES FOR YOUR PROGRAM (select one of the
following):
<TABLE>
<S> <C>
[ ] $ _______ per initial minute and $ _____ per each additional minute(s)
[ ] $ _______ per call
ENHANCED RATE SET
[ ] $ _______ per initial __ minute(s) $ ____ per additional ____ minute(s)
</TABLE>
VARI-A-BILL RATES (for use with AT&T MULTIQUEST Interacter Service only):
<TABLE>
<S> <C>
Maximum Per Minute Charge: $ Maximum Premium Charge: $
--------------- ------------------------
Maximum Flat Rate Charge: $ 60.00
---------------
</TABLE>
CALL PROMPTER RATING
Caller will be billed the following charges for your offer:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C>
__________ _______ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
CUSTOMER HEREBY DESIGNATES THE FOLLOWING CPR INFORMATION FOR THE 900 NUMBERS
SPECIFIED ABOVE:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Branch Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C> <C>
#1 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#2 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#3 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#4 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
- -------------------------------------------------------------------------------
BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT IT AGREES TO THE TERMS AND
CONDITIONS OF THE AGREEMENT INCLUDING THOSE ON THE REVERSE SIDE OF THIS FORM,
WHICH (AMONG OTHER THINGS) PROVIDE LIMITATIONS OF LIABILITY. THESE TERMS AND
CONDITIONS APPLY TO THIS ORDER, AND ANY SUBSEQUENT ORDER ACCEPTED BY AT&T UNDER
THIS AGREEMENT.
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
Consumer Data Solutions
- ----------------------------------------------- AT&T Corp
(Customer)
Accepted By: C. Sherman Accepted By:
---------------------------------- ---------------------------------------
/s/ CARL SHERMAN
- ----------------------------------------------- ------------------------------------------------------
(Authorized Signature) (Authorized Signature)
Carl Sherman
- ----------------------------------------------- ------------------------------------------------------
(Printed/Typed Name) (Printed/Typed Name)
CEO/President
- ----------------------------------------------- ------------------------------------------------------
(Title) (Title)
9-6-99
- ----------------------------------------------- ------------------------------------------------------
(Date) (Date)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PRELIMINARY CUSTOMER COPY
<PAGE> 2
The following Terms and Conditions shall apply to the Billing Services provided
by AT&T under this Agreement to Customer for the 900 number telephone Programs
listed on the front of this Agreement, or in Supplemental Billing Services
Agreements which reference this Agreement ("Billing Services").
GENERAL TERMS AND CONDITIONS
- --------------------------------------------------------------------------------
1. BILLING COLLECTION AND CALL INQUIRY SERVICES
A. Acting as Customer's agent, AT&T will perform the following services for
Customer's Programs:
(1) secure usage records; message processing; bill processing; bill rendering;
inquiry; collection; and remittance services.
(2) your Customers ("Caller's") will be billed for the charges associated with
your program(s). AT&T will remit collected charges to you, less any fees as
indicated in this Agreement.
(3) provide good faith efforts to collect Customer charges from Caller's.
However, AT&T has no obligation to bring collection suits or to use collection
agencies, and AT&T may remove from a Caller's bill Program charges with which
the Caller disputes or refuses to pay. If the Caller's bill is adjusted,
Customer shall still remain liable for the Billing Services fees and tariffed
charges associated with each call.
B. Within ninety days after the end of the month in which the calls were made
to Customer's Program(s), AT&T shall remit to Customer the net amount of
Customer's charges for the billing period. The net amount will reflect the
following deductions:
(1) AT&T's fees and charges for tariffed Services,
(2) AT&T's fees and charges for billing Services,
(3) Any applicable federal, state and local taxes, however designated, unless
Customer has provided AT&T with a valid tax exemption certificate or statute;
(4) Uncollectable amounts, including among others, amounts that caller's refuse
to pay, amounts that have not been billed to caller by the local service
provider; and
(5) Amounts removed from callers' bills by AT&T, the local exchange companies
("LEC's") or other local service provider.
C. Notwithstanding the remittance described in Section 1.B above, AT&T may
"true up" these deductions based upon any additional uncollectable amounts
discovered within twelve months after the Caller's underlying call to the 900
program was made; and may implement this "true up" against remittances for
subsequent months, AT&T may also delay all or a portion of its payment of funds
at any time during the contractual relationship, continuing for up to twelve
months following termination of Customer's Program Billing Services. When
determining whether to delay all or a portion of payment to Customer, AT&T will
consider, among other factors, Customer's credit history, the length of time
Customer has been the Customer of Record, and the projected refund rate of
Customer's total billed account as determined by AT&T.
D. AT&T may apply any payments to any outstanding debt incurred by Customer.
E. AT&T reserves the right to block access to all AT&T 900 numbers from the
telephone stations of any Caller who, in AT&T's sole discretion, is carrying an
excessive unpaid balance of charges for calls made to Programs billed by AT&T,
or appears to be engaged in any fraudulent or abusive practice.
2. CONTINGENT AGREEMENT
This agreement is contingent upon AT&T's ability to secure Billing for
Customer's Programs. AT&T will make good faith efforts to secure such services.
3. BILLING SERVICES FEE
A. For calls using AT&T MULTIQUEST Interacter Service, the Billing Service fee
is 10 percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST HICAP, the Billing Service fee is 10
percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST Express 900 service, the Billing
Service fee is 15 percent of the Customer's charge to callers, or $0.12 per
call, whichever is greater. All fees are exclusive of applicable sales, use or
gross receipts taxes. AT&T may change the Billing Services fees upon thirty
days written notice to Customer.
B. For AT&T MULTIQUEST interacter, AT&T MULTIQUEST HICAP, and AT&T MULTIQUEST
Express 900 Service, charges include partial minutes rounded up to full minutes.
C. In any dispute regarding the number of calls to Programs, or the total
minutes billed, AT&T's records shall control.
4. COMPLIANCE WITH AT&T MULTIQUEST PREMIUM BILLING GUIDELINES
Customer's Programs and related advertising and business practices shall at all
times conform to all applicable federal, state and local laws and regulations,
as well as with the "AT&T MULTIQUEST Premium Billing Guidelines" ("Guidelines")
as these may be modified by AT&T from time to time. These Guidelines are
specifically incorporated by reference into this Agreement. Customer
acknowledges that it has been provided with a copy of the current Guidelines.
5. CUSTOMER RESPONSIBILITIES; INDEMNIFICATION OF AT&T
A. Customer shall pay all charges for the tariffed services to which it
subscribes. Customer may not advise callers that they are obligated to pay
AT&T's tariffed charges applicable to the Customer's Programs.
B. Customer shall provide AT&T a complete written description of each Program
(including without limitation copies of all advertising for the program and all
scripts) prior to its commencement and a complete new written description of
any change (including without limitation price changes) in the Program or
advertising before any such change is implemented.
C. Customer is solely responsible for its Program(s) and all promotions and
advertising.
D. Customer shall provide AT&T with a name, street address and telephone number
that may be disclosed to callers or other interested parties who request it. If
the information provider for a Program is different from the Customer, Customer
shall provide AT&T with the name, mailing address and customer service
telephone number of the information provider, and Customer represents that AT&T
may freely disclose such information to those who request it.
E. When the Guidelines require the Customer to agree to 100% adjustments by
AT&T to all callers requesting refunds, the Customer shall not initiate,
directly or indirectly through any third party, any action to collect charges
from a caller who has obtained an adjustment from AT&T.
F. Customer shall not indicate by any means that AT&T endorses or is affiliated
with Customer's Programs in any way, and shall not use any AT&T trademark,
service mark or logo without the express written permission of AT&T.
G. Customer represents and warrants that its Program(s) will at all times
comply with all applicable federal, state and local laws, rules, regulations
and ordinances. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD AT&T (AS DEFINED IN
SECTION 10.A) HARMLESS FROM ALL CLAIMS, ACTIONS, DAMAGES, COMPLAINTS, EXPENSES
AND REASONABLE ATTORNEYS' FEES (COLLECTIVELY, "CLAIMS") ARISING IN CONNECTION
WITH OR RELATING TO THIS AGREEMENT OUT OF (1) CUSTOMER'S PRODUCTS OR SERVICES,
MESSAGES, PROGRAMS, CALLER CONTACTS, COLLECTION ACTIVITIES, PROMOTIONS,
ADVERTISING, LIBEL OR SLANDER; OR (2) ANY FAILURE ON CUSTOMER'S PART TO COMPLY
WITH ANY LAW, RULE, REGULATION, OR ORDINANCE. AT&T, IN ITS SOLE DISCRETION, MAY
ELECT TO CONTROL ITS OWN DEFENSE AGAINST ANY SUCH CLAIMS, WITHOUT ELIMINATING
OR LIMITING IN ANY WAY CUSTOMER'S INDEMNITY OBLIGATIONS UNDER THIS SECTION.
H. Customer agrees and acknowledges that AT&T's agreement to provide Billing
Services for any Program does not constitute a determination that Customer is
in compliance with any or all applicable laws with respect to such Program.
I. AT&T is not responsible for the determination, application, collection or
remittance of any taxes due or which may become due with respect to charges
made to callers for Customer's Programs, except as may be directed by taxing
authorities.
6. TELEPHONE NUMBER CHANGES
Nothing under this Agreement creates an ownership or other interest in the
telephone number assigned for a Program. AT&T reserves the right to change the
900 telephone number assigned to a Program whenever AT&T determines that such a
change is necessary or desirable for its provision of tariffed services or
Billing Services. Upon termination of Billing Services for any Program, AT&T
will assign a different 900 telephone number if Customer elects to continue to
use AT&T's tariffed services.
7. TERM AND TERMINATION
A. This Agreement is effective when signed by Customer's agent and accepted in
writing by AT&T. Either party may terminate this Agreement or the Billing
Services for one or more particular Customer Programs upon thirty days prior
written notice to the other party specifying the exact date of such
termination.
B. Customer may cancel this Agreement without termination liability if AT&T
fails to perform or observe any material term or condition of this Agreement
and such failure continues unremedied for thirty days after AT&T receives
written notice of such failure from Customer.
C. AT&T may immediately terminate this Agreement, or the Billing Services for
one or more particular Customer Programs, if AT&T in its sole discretion
determines that (1) AT&T's provision of tariffed services may be adversely
affected by the applicable Program(s), or by the provision of Billing Services;
(2) that the Program(s) or the provision of Billing Services may adversely
affect AT&T's public image, reputation or goodwill; (3) A LEC or other local
service provider will not provide needed services, or will not provide them at
rates or on terms acceptable to AT&T; (4) Customer (or Customer's information
provider or other customer) has not complied with the current Guidelines,
regardless of whether AT&T has previously reviewed or released the particular
Programs or advertising, or (5) Customer has breached this Agreement. In
addition, AT&T may immediately terminate this Agreement, or the Billing
Services for one or more particular Customer Program(s) if, (1) AT&T receives
any complaint regarding Customer's Program(s) or any related messages,
representations, promotions, advertising, products or services; (2) any claim
is made against AT&T arising from Customer's Program(s) or any related
messages, representations, promotions, advertising, products or services; (3)
Customer or its Program(s) become the subject of a government investigation,
lawsuit, or criminal action.
D. On receipt of any claim or complaint against Customer in connection with
AT&T's Billing Services, upon notice of an investigation by a law enforcement
agency, if AT&T has reason to believe that Customer is defrauding AT&T, or if a
dispute arises in connection with Customer's assignment of revenues, AT&T may
deposit all amounts then or thereafter due to Customer or its assignee in an
escrow account pending the resolution of all such claims, complaints and
disputes.
E. Unless otherwise agreed to in writing, this Agreement shall terminate
automatically if Customer does not order appropriate AT&T tariffed services and
request installation within 90 days of assignment of a 900 telephone number.
F. Upon termination of Billing Services by AT&T, Customer shall be liable for
all applicable charges, including any applicable termination charge.
G. AT&T may, at its option, perform a credit check on Customer at any time, and
may terminate this Agreement if it determines that Customer's credit history is
unsatisfactory.
8. TELECOMMUNICATIONS SERVICES
This Agreement does not offer or affect tariffed services. If this Agreement
conflicts with any AT&T tariff, the tariff shall govern. Charges under this
Agreement will not be affected by outages or degradation in tariffed services,
and charges for tariffed services will not be affected by performance under
this Agreement.
9. WARRANTY AND DISCLAIMER
AT&T shall use reasonable efforts to provide Billing Services of a quality
consistent with the billing for its own services. Customer and AT&T shall
notify each other when billing discrepancies are discovered. AT&T shall
promptly explain or correct billing discrepancies. Each party further agrees to
provide the other with necessary information it has or acquires to help
identify the cause of an error and its correction. The above warranty is the
only warranty provided in connection with this Agreement. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR QUALITY, OR SUITABILITY FOR CALLERS OF YOUR PRODUCTS OR
SERVICES.
10. LIMITATIONS AND LIABILITY
A. "AT&T" SHALL BE DEEMED TO INCLUDE AT&T, ITS SUBSIDIARIES AND THEIR
AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,
SUB-CONTRACTORS AND SUPPLIERS OF ALL OF THEM. "DAMAGES" SHALL REFER TO ALL
INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
B. AT&T'S ENTIRE LIABILITY TO CUSTOMER FOR ANY DAMAGES CAUSED BY AT&T'S
PERFORMANCE OR NON-PERFORMANCE OF BILLING SERVICES UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED, AS FOLLOWS:
(1) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR
DEATH TO ANY PERSON NEGLIGENTLY CAUSED BY AT&T, AT&T'S LIABILITY SHALL BE THE
PROVEN DAMAGES TO PROPERTY OR PERSON;
(2) FOR ALL OTHER CLAIMS, AT&T'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT
DAMAGES IN AN AMOUNT NOT TO EXCEED $50,000.
C. AT&T SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, SAVINGS OR
REVENUES OF ANY KIND, WHETHER OR NOT AT&T HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
11. FORCE MAJEURE
AT&T shall have no liability for delays or damages due to fire, explosion,
lightening, pest damage, power surges or failures, strikes or labor disputes,
water, acts of God, the elements, war, civil disturbances, acts of civil or
military authorities, including but not limited to any regulatory agencies
having jurisdiction over AT&T, the LECs or other local service provider, acts of
the public enemy, inability to secure raw materials, transportation facilities,
fuel or energy shortages, acts or omissions of any common carrier or its agent
(including among others the LECs), or other causes beyond AT&T's control whether
or not similar to the foregoing.
12. ASSIGNMENT OR TRANSFER
Neither party may assign or transfer this Agreement without the prior written
consent of the other party. Consent shall not be unreasonably withheld. AT&T
may assign this Agreement to a present or future affiliate or subsidiary or
assign its right to receive payment. If Customer assigns or transfers the
revenues due under this Agreement, in addition to obtaining AT&T's prior
written consent, it must: (1) give AT&T at least thirty days notice of the
effective date of the assignment; (2) designate the specific account or
account numbers and "900" telephone numbers to which the assignment applies;
and (3) waive all rights to move existing Programs from an assigned account. An
assignment or transfer by Customer authorizes AT&T to disclose to the assignee
or transferee financial and other relevant data concerning the affected
Programs.
13. NO THIRD PARTY BENEFICIARY
This Agreement is solely for the benefit of the parties. No third party,
including but not limited to Callers and Customer's downstream customers, is
intended to benefit from this Agreement or have claims against either party for
its performance or nonperformance.
14. DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement, or its breach, and if
such dispute cannot be settled through discussion and negotiation of the
parties, the parties agree to submit the dispute to a sole mediator selected by
the parties or, at any time at the option of a party, to mediation or
arbitration by the American Arbitration Association ("AAA").
15. GENERAL
A. Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by the authorized representatives of both parties.
B. If any portion of this Agreement is found to be invalid or unenforceable,
the remaining portions shall remain in effect. In the event each invalid or
unenforceable portion is an essential part of this agreement, the parties will
immediately negotiate a replacement.
C. If either party ever fails to enforce any right or remedy available to it
under this Agreement, that failure shall not be construed as a waiver of any
right or remedy with respect to any other breach or failure by the other party.
D. Any legal action you bring against AT&T with respect to this Agreement must
begin within two (2) years after the cause of action arises.
E. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
F. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LOCAL LAWS OF THE STATE OF NEW YORK.
16. FEATURES
The features described here do not fully represent all offers associated with
AT&T MULTIQUEST Services.
A. AT&T's Vari-A-Bill feature is available with Billing Services for AT&T
MULTIQUEST Interacter Service. This feature allows Customer to change the rate
at which the caller is to be charged (the "Caller Rate") at a
Customer-determined time during the call. Customer shall change the Caller Rate
by issuing a Vari-A-Bill Rate Change Request to AT&T, specifying the new Caller
Rate, over an Integrated Services Digital Network ("ISDN") Primary Rate
Interface ("PRI") obtained under tariff or separate contract from AT&T by the
Customer.
(1) Using the Vari-A-Bill feature, Customer may follow AT&T-provided
procedures to change the Caller Rate to a flat (per call) charge, a free
call, a premium charge, a premium credit, or a new rate for the remaining
time of the call.
(2) Full and complete rate disclosure in both Customer's advertisements, and
in the Customer's Program preamble(s), is the responsibility of the Customer.
Such disclosures must comply with, among others, federal and state laws and
regulations (including the Federal Communications Commission's regulations
regarding preambles to pay-per-call programs and the Federal Trade
Commissions regulations). Before sending a Vari-A-Bill Rate Change request,
Customer must inform the Caller of the new rate or charge, and gain
confirmation or acceptance of the new rate or charge from the Caller. No
attempt will be made by AT&T to perform rate or charge disclosure or
confirmation. If the Caller is under 18 years of age, Customer is responsible
for ensuring that the Caller has permission from a parent or guardian to
complete the call.
(3) If charges for a call exceed the Maximum Allowable Flat Rate Charge, or
the Maximum Allowable Premium Charge, or the Maximum Allowable Per Minute
Charge (as specified in the Agreement), the Customer will provide a corrected
record of the charge or rate to AT&T within two business days of AT&T's
request for such information. If Customer does not provide this information
within the specified time frame, AT&T will remove the charges recorded for
the call after the Vari-A-Bill rate or charge change was received by AT&T.
Customer will continue to be responsible for all tariffed charges and Billing
Services fees for such calls.
(4) If a Caller contacts AT&T and inquires about a charge or fee, claiming
that it exceeds the amount agreed between Caller and Customer, then AT&T may
request from Customer a verifiable record of Caller's agreement to the charge
or fee. If Customer fails to provide such a verifiable record within two
business days, and if Caller continues to request an adjustment, Customer
agrees that AT&T is authorized to credit Caller for the entire amount of the
call. Customer will continue to be responsible for all tariffed charges and
Billing Services fees for such calls.
(5) Customer shall ensure that its customer premises equipment ("CPE")
terminating the ISDN PRI facility has passed AT&T's ISDN Compatibility Test
Program. Customer shall provide AT&T with the following information
concerning its CPE: manufacturer, product code, release, date of AT&T ISDN
Compatibility Test. Customer shall ensure that any subsequent retrofits,
upgrades, modifications or other changes to its CPE used in connection with
AT&T Vari-A-Bill Service has passed AT&T's ISDN Compatibility Test Program.
Customer agrees to pay AT&T for all AT&T expenses that result from caller
inquiry, trouble isolation, resolution, and other work associated with
Customer's installation and operation of CPE that has not passed AT&T's ISDN
Compatibility Test Program.
(6) Customer is responsible for assigning a designated contact to resolve
Vari-A-Bill specific billing issues. If the designated contact changes,
Customer shall provide written notification to AT&T within 24 hours (One
business day).
(7) Charges for the Vari-A-Bill feature are in addition to the other tariffed
charges and Billing Services fees incurred by Customer.
B. Call Prompter Rating ("CPR") Feature is available with AT&T MULTIQUEST
Interacter Service or Express 900 Service.
(1) CPR affords the Customer the ability to vary the set of rating options to
a Caller (without changing the 900 telephone number) based upon responses
made to Call Prompter announcements. Rate sets can be individually assigned
to a maximum of four Call Prompter "branches" identified by specific bill
designator. These rates will apply when a caller from an AT&T 1+ Recording
Takeback Area, successfully enters the valid digits for the branch, otherwise
the default value applies.
(2) Full and complete rate disclosure in both Customer's advertisements and
in the programs' preamble and compliance with the AT&T CPR Guidelines are the
responsibilities of the Customer. Such disclosures must comply with, among
others, federal and state laws and regulations (including the Federal
Communications Commission's regulations regarding preambles to 900 programs
and the Federal Trade Commissions regulations).
(3) Charges for the CPR feature are in addition to the other tariffed charges
and Billing Services fees incurred by Customer.
<PAGE> 3
[AT&T LOGO] AT&T MASTER BILLING SERVICES AGREEMENT
AT&T MASTER BILLING SERVICES AGREEMENT NO. 004524MQ
===============================================================================
Customer Name AT&T Corp.
Consumer Data Solutions MultiQuest 900 Services
Customer Contact Name and Phone AT&T Contact Name and Phone
Carl Sherman / 972-298-3800 Michael Roy / 817-354-4597
Customer Address AT&T OFFICE ADDRESS
402 W Wheatland, Suite 111 AT&T
12 Meadow Lane
City, State, Zip Code City, State, Zip Code
Duncanville, TX 75116 Bedford, TX 76021
===============================================================================
The AT&T MULTIQUEST(R) Services ("Billing Services") offered under this
Agreement are as follows (CHECK ONE):
<TABLE>
<S> <C>
[X] AT&T MULTIQUEST(R) Interacter Service [ ] AT&T MULTIQUEST(R) Express 900 Service
[ ] AT&T MULTIQUEST(R) HICAP Service [ ] Other AT&T MULTIQUEST Service
[ ]
-------------------------------------------------------
(Indicate Service and attach amendment, if applicable)
</TABLE>
AT&T MULTIQUEST(R) Billing Options (CHECK ONE):
[X] Caller Adjustment Process (CAP) [ ] 60/90 Delay Process
- -------------------------------------------------------------------------------
Additional Customer Programs may be detailed on the Additional Billing Services
Agreement form(s) ONLY when using the same service requested here.
- -------------------------------------------------------------------------------
Initial Customer Program offering description and 900 numbers(s):
------------
900-288-4663
- -------------------------------------------------------------------------------
Fundraising / Food Delivery Program
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PRESALE # 141377
--------------------
CALLERS WILL BE BILLED THE FOLLOWING CHARGES FOR YOUR PROGRAM (select one of the
following):
[X] $ 0 per initial minute and $ 0 per each additional minute
----- -----
[ ] $ per call
________________
ENHANCED RATE SET
[ ] $ ____ per initial ____ minute(s) $ ____ per additional ____ minute(s)
VARI-A-BILL RATES (for use with AT&T MULTIQUEST Interacter Service only):
<TABLE>
<S> <C>
Maximum Per Minute Charge: $ Maximum Premium Charge: $
--------------- ------------------------
Maximum Flat Rate Charge: $ 60.00
---------------
</TABLE>
CALL PROMPTER RATING
Caller will be billed the following charges for your offer:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C>
__________ _______ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
CUSTOMER HEREBY DESIGNATES THE FOLLOWING CPR INFORMATION FOR THE 900 NUMBERS
SPECIFIED ABOVE:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Branch Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C> <C>
#1 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#2 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#3 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#4 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
- -------------------------------------------------------------------------------
BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT IT AGREES TO THE TERMS AND
CONDITIONS OF THE AGREEMENT INCLUDING THOSE ON THE REVERSE SIDE OF THIS FORM,
WHICH (AMONG OTHER THINGS) PROVIDE LIMITATIONS OF LIABILITY. THESE TERMS AND
CONDITIONS APPLY TO THIS ORDER, AND ANY SUBSEQUENT ORDER ACCEPTED BY AT&T UNDER
THIS AGREEMENT.
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
Consumer Data Solutions
- ----------------------------------------------- AT&T Corp
(Customer)
Accepted By: Accepted By:
---------------------------------- ---------------------------------------
/s/ CARL O. SHERMAN /s/ CAROLE LUKENS
- ----------------------------------------------- ------------------------------------------------------
(Authorized Signature) (Authorized Signature)
Carl O. Sherman Carole Lukens
- ----------------------------------------------- ------------------------------------------------------
(Printed/Typed Name) (Printed/Typed Name)
President/CEO Presale Manager
- ----------------------------------------------- ------------------------------------------------------
(Title) (Title)
5-5-98 June 8, 1998
- ----------------------------------------------- ------------------------------------------------------
(Date) (Date)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
FINAL CUSTOMER COPY
<PAGE> 4
The following Terms and Conditions shall apply to the Billing Services provided
by AT&T under this Agreement to Customer for the 900 number telephone Programs
listed on the front of this Agreement, or in Supplemental Billing Services
Agreements which reference this Agreement ("Billing Services").
GENERAL TERMS AND CONDITIONS
- --------------------------------------------------------------------------------
1. BILLING COLLECTION AND CALL INQUIRY SERVICES
A. Acting as Customer's agent, AT&T will perform the following services for
Customer's Programs:
(1) secure usage records; message processing; bill processing; bill rendering;
inquiry; collection; and remittance services.
(2) your Customers ("Caller's") will be billed for the charges associated with
your program(s). AT&T will remit collected charges to you, less any fees as
indicated in this Agreement.
(3) provide good faith efforts to collect Customer charges from Caller's.
However, AT&T has no obligation to bring collection suits or to use collection
agencies, and AT&T may remove from a Caller's bill Program charges with which
the Caller disputes or refuses to pay. If the Caller's bill is adjusted,
Customer shall still remain liable for the Billing Services fees and tariffed
charges associated with each call.
B. Within ninety days after the end of the month in which the calls were made
to Customer's Program(s), AT&T shall remit to Customer the net amount of
Customer's charges for the billing period. The net amount will reflect the
following deductions:
(1) AT&T's fees and charges for tariffed Services,
(2) AT&T's fees and charges for billing Services,
(3) Any applicable federal, state and local taxes, however designated, unless
Customer has provided AT&T with a valid tax exemption certificate or statute;
(4) Uncollectable amounts, including among others, amounts that caller's refuse
to pay, amounts that have not been billed to caller by the local service
provider; and
(5) Amounts removed from callers' bills by AT&T, the local exchange companies
("LEC's") or other local service provider.
C. Notwithstanding the remittance described in Section 1.B above, AT&T may
"true up" these deductions based upon any additional uncollectable amounts
discovered within twelve months after the Caller's underlying call to the 900
program was made; and may implement this "true up" against remittances for
subsequent months, AT&T may also delay all or a portion of its payment of funds
at any time during the contractual relationship, continuing for up to twelve
months following termination of Customer's Program Billing Services. When
determining whether to delay all or a portion of payment to Customer, AT&T will
consider, among other factors, Customer's credit history, the length of time
Customer has been the Customer of Record, and the projected refund rate of
Customer's total billed account as determined by AT&T.
D. AT&T may apply any payments to any outstanding debt incurred by Customer.
E. AT&T reserves the right to block access to all AT&T 900 numbers from the
telephone stations of any Caller who, in AT&T's sole discretion, is carrying an
excessive unpaid balance of charges for calls made to Programs billed by AT&T,
or appears to be engaged in any fraudulent or abusive practice.
2. CONTINGENT AGREEMENT
This agreement is contingent upon AT&T's ability to secure Billing for
Customer's Programs. AT&T will make good faith efforts to secure such services.
3. BILLING SERVICES FEE
A. For calls using AT&T MULTIQUEST Interacter Service, the Billing Service fee
is 10 percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST HICAP, the Billing Service fee is 10
percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST Express 900 service, the Billing
Service fee is 15 percent of the Customer's charge to callers, or $0.12 per
call, whichever is greater. All fees are exclusive of applicable sales, use or
gross receipts taxes. AT&T may change the Billing Services fees upon thirty
days written notice to Customer.
B. For AT&T MULTIQUEST interacter, AT&T MULTIQUEST HICAP, and AT&T MULTIQUEST
Express 900 Service, charges include partial minutes rounded up to full minutes.
C. In any dispute regarding the number of calls to Programs, or the total
minutes billed, AT&T's records shall control.
4. COMPLIANCE WITH AT&T MULTIQUEST PREMIUM BILLING GUIDELINES
Customer's Programs and related advertising and business practices shall at all
times conform to all applicable federal, state and local laws and regulations,
as well as with the "AT&T MULTIQUEST Premium Billing Guidelines" ("Guidelines")
as these may be modified by AT&T from time to time. These Guidelines are
specifically incorporated by reference into this Agreement. Customer
acknowledges that it has been provided with a copy of the current Guidelines.
5. CUSTOMER RESPONSIBILITIES; INDEMNIFICATION OF AT&T
A. Customer shall pay all charges for the tariffed services to which it
subscribes. Customer may not advise callers that they are obligated to pay
AT&T's tariffed charges applicable to the Customer's Programs.
B. Customer shall provide AT&T a complete written description of each Program
(including without limitation copies of all advertising for the program and all
scripts) prior to its commencement and a complete new written description of
any change (including without limitation price changes) in the Program or
advertising before any such change is implemented.
C. Customer is solely responsible for its Program(s) and all promotions and
advertising.
D. Customer shall provide AT&T with a name, street address and telephone number
that may be disclosed to callers or other interested parties who request it. If
the information provider for a Program is different from the Customer, Customer
shall provide AT&T with the name, mailing address and customer service
telephone number of the information provider, and Customer represents that AT&T
may freely disclose such information to those who request it.
E. When the Guidelines require the Customer to agree to 100% adjustments by
AT&T to all callers requesting refunds, the Customer shall not initiate,
directly or indirectly through any third party, any action to collect charges
from a caller who has obtained an adjustment from AT&T.
F. Customer shall not indicate by any means that AT&T endorses or is affiliated
with Customer's Programs in any way, and shall not use any AT&T trademark,
service mark or logo without the express written permission of AT&T.
G. Customer represents and warrants that its Program(s) will at all times
comply with all applicable federal, state and local laws, rules, regulations
and ordinances. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD AT&T (AS DEFINED IN
SECTION 10.A) HARMLESS FROM ALL CLAIMS, ACTIONS, DAMAGES, COMPLAINTS, EXPENSES
AND REASONABLE ATTORNEYS' FEES (COLLECTIVELY, "CLAIMS") ARISING IN CONNECTION
WITH OR RELATING TO THIS AGREEMENT OUT OF (1) CUSTOMER'S PRODUCTS OR SERVICES,
MESSAGES, PROGRAMS, CALLER CONTACTS, COLLECTION ACTIVITIES, PROMOTIONS,
ADVERTISING, LIBEL OR SLANDER; OR (2) ANY FAILURE ON CUSTOMER'S PART TO COMPLY
WITH ANY LAW, RULE, REGULATION, OR ORDINANCE. AT&T, IN ITS SOLE DISCRETION, MAY
ELECT TO CONTROL ITS OWN DEFENSE AGAINST ANY SUCH CLAIMS, WITHOUT ELIMINATING
OR LIMITING IN ANY WAY CUSTOMER'S INDEMNITY OBLIGATIONS UNDER THIS SECTION.
H. Customer agrees and acknowledges that AT&T's agreement to provide Billing
Services for any Program does not constitute a determination that Customer is
in compliance with any or all applicable laws with respect to such Program.
I. AT&T is not responsible for the determination, application, collection or
remittance of any taxes due or which may become due with respect to charges
made to callers for Customer's Programs, except as may be directed by taxing
authorities.
6. TELEPHONE NUMBER CHANGES
Nothing under this Agreement creates an ownership or other interest in the
telephone number assigned for a Program. AT&T reserves the right to change the
900 telephone number assigned to a Program whenever AT&T determines that such a
change is necessary or desirable for its provision of tariffed services or
Billing Services. Upon termination of Billing Services for any Program, AT&T
will assign a different 900 telephone number if Customer elects to continue to
use AT&T's tariffed services.
7. TERM AND TERMINATION
A. This Agreement is effective when signed by Customer's agent and accepted in
writing by AT&T. Either party may terminate this Agreement or the Billing
Services for one or more particular Customer Programs upon thirty days prior
written notice to the other party specifying the exact date of such
termination.
B. Customer may cancel this Agreement without termination liability if AT&T
fails to perform or observe any material term or condition of this Agreement
and such failure continues unremedied for thirty days after AT&T receives
written notice of such failure from Customer.
C. AT&T may immediately terminate this Agreement, or the Billing Services for
one or more particular Customer Programs, if AT&T in its sole discretion
determines that (1) AT&T's provision of tariffed services may be adversely
affected by the applicable Program(s), or by the provision of Billing Services;
(2) that the Program(s) or the provision of Billing Services may adversely
affect AT&T's public image, reputation or goodwill; (3) A LEC or other local
service provider will not provide needed services, or will not provide them at
rates or on terms acceptable to AT&T; (4) Customer (or Customer's information
provider or other customer) has not complied with the current Guidelines,
regardless of whether AT&T has previously reviewed or released the particular
Programs or advertising, or (5) Customer has breached this Agreement. In
addition, AT&T may immediately terminate this Agreement, or the Billing
Services for one or more particular Customer Program(s) if, (1) AT&T receives
any complaint regarding Customer's Program(s) or any related messages,
representations, promotions, advertising, products or services; (2) any claim
is made against AT&T arising from Customer's Program(s) or any related
messages, representations, promotions, advertising, products or services; (3)
Customer or its Program(s) become the subject of a government investigation,
lawsuit, or criminal action.
D. On receipt of any claim or complaint against Customer in connection with
AT&T's Billing Services, upon notice of an investigation by a law enforcement
agency, if AT&T has reason to believe that Customer is defrauding AT&T, or if a
dispute arises in connection with Customer's assignment of revenues, AT&T may
deposit all amounts then or thereafter due to Customer or its assignee in an
escrow account pending the resolution of all such claims, complaints and
disputes.
E. Unless otherwise agreed to in writing, this Agreement shall terminate
automatically if Customer does not order appropriate AT&T tariffed services and
request installation within 90 days of assignment of a 900 telephone number.
F. Upon termination of Billing Services by AT&T, Customer shall be liable for
all applicable charges, including any applicable termination charge.
G. AT&T may, at its option, perform a credit check on Customer at any time, and
may terminate this Agreement if it determines that Customer's credit history is
unsatisfactory.
8. TELECOMMUNICATIONS SERVICES
This Agreement does not offer or affect tariffed services. If this Agreement
conflicts with any AT&T tariff, the tariff shall govern. Charges under this
Agreement will not be affected by outages or degradation in tariffed services,
and charges for tariffed services will not be affected by performance under
this Agreement.
9. WARRANTY AND DISCLAIMER
AT&T shall use reasonable efforts to provide Billing Services of a quality
consistent with the billing for its own services. Customer and AT&T shall
notify each other when billing discrepancies are discovered. AT&T shall
promptly explain or correct billing discrepancies. Each party further agrees to
provide the other with necessary information it has or acquires to help
identify the cause of an error and its correction. The above warranty is the
only warranty provided in connection with this Agreement. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR QUALITY, OR SUITABILITY FOR CALLERS OF YOUR PRODUCTS OR
SERVICES.
10. LIMITATIONS AND LIABILITY
A. "AT&T" SHALL BE DEEMED TO INCLUDE AT&T, ITS SUBSIDIARIES AND THEIR
AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,
SUB-CONTRACTORS AND SUPPLIERS OF ALL OF THEM. "DAMAGES" SHALL REFER TO ALL
INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
B. AT&T'S ENTIRE LIABILITY TO CUSTOMER FOR ANY DAMAGES CAUSED BY AT&T'S
PERFORMANCE OR NON-PERFORMANCE OF BILLING SERVICES UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED, AS FOLLOWS:
(1) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR
DEATH TO ANY PERSON NEGLIGENTLY CAUSED BY AT&T, AT&T'S LIABILITY SHALL BE THE
PROVEN DAMAGES TO PROPERTY OR PERSON;
(2) FOR ALL OTHER CLAIMS, AT&T'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT
DAMAGES IN AN AMOUNT NOT TO EXCEED $50,000.
C. AT&T SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, SAVINGS OR
REVENUES OF ANY KIND, WHETHER OR NOT AT&T HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
11. FORCE MAJEURE
AT&T shall have no liability for delays or damages due to fire, explosion,
lightening, pest damage, power surges or failures, strikes or labor disputes,
water, acts of God, the elements, war, civil disturbances, acts of civil or
military authorities, including but not limited to any regulatory agencies
having jurisdiction over AT&T, the LECs or other local service provider, acts of
the public enemy, inability to secure raw materials, transportation facilities,
fuel or energy shortages, acts or omissions of any common carrier or its agent
(including among others the LECs), or other causes beyond AT&T's control whether
or not similar to the foregoing.
12. ASSIGNMENT OR TRANSFER
Neither party may assign or transfer this Agreement without the prior written
consent of the other party. Consent shall not be unreasonably withheld. AT&T
may assign this Agreement to a present or future affiliate or subsidiary or
assign its right to receive payment. If Customer assigns or transfers the
revenues due under this Agreement, in addition to obtaining AT&T's prior
written consent, it must: (1) give AT&T at least thirty days notice of the
effective date of the assignment; (2) designate the specific account or
account numbers and "900" telephone numbers to which the assignment applies;
and (3) waive all rights to move existing Programs from an assigned account. An
assignment or transfer by Customer authorizes AT&T to disclose to the assignee
or transferee financial and other relevant data concerning the affected
Programs.
13. NO THIRD PARTY BENEFICIARY
This Agreement is solely for the benefit of the parties. No third party,
including but not limited to Callers and Customer's downstream customers, is
intended to benefit from this Agreement or have claims against either party for
its performance or nonperformance.
14. DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement, or its breach, and if
such dispute cannot be settled through discussion and negotiation of the
parties, the parties agree to submit the dispute to a sole mediator selected by
the parties or, at any time at the option of a party, to mediation or
arbitration by the American Arbitration Association ("AAA").
15. GENERAL
A. Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by the authorized representatives of both parties.
B. If any portion of this Agreement is found to be invalid or unenforceable,
the remaining portions shall remain in effect. In the event each invalid or
unenforceable portion is an essential part of this agreement, the parties will
immediately negotiate a replacement.
C. If either party ever fails to enforce any right or remedy available to it
under this Agreement, that failure shall not be construed as a waiver of any
right or remedy with respect to any other breach or failure by the other party.
D. Any legal action you bring against AT&T with respect to this Agreement must
begin within two (2) years after the cause of action arises.
E. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
F. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LOCAL LAWS OF THE STATE OF NEW YORK.
16. FEATURES
The features described here do not fully represent all offers associated with
AT&T MULTIQUEST Services.
A. AT&T's Vari-A-Bill feature is available with Billing Services for AT&T
MULTIQUEST Interacter Service. This feature allows Customer to change the rate
at which the caller is to be charged (the "Caller Rate") at a
Customer-determined time during the call. Customer shall change the Caller Rate
by issuing a Vari-A-Bill Rate Change Request to AT&T, specifying the new Caller
Rate, over an Integrated Services Digital Network ("ISDN") Primary Rate
Interface ("PRI") obtained under tariff or separate contract from AT&T by the
Customer.
(1) Using the Vari-A-Bill feature, Customer may follow AT&T-provided
procedures to change the Caller Rate to a flat (per call) charge, a free
call, a premium charge, a premium credit, or a new rate for the remaining
time of the call.
(2) Full and complete rate disclosure in both Customer's advertisements, and
in the Customer's Program preamble(s), is the responsibility of the Customer.
Such disclosures must comply with, among others, federal and state laws and
regulations (including the Federal Communications Commission's regulations
regarding preambles to pay-per-call programs and the Federal Trade
Commissions regulations). Before sending a Vari-A-Bill Rate Change request,
Customer must inform the Caller of the new rate or charge, and gain
confirmation or acceptance of the new rate or charge from the Caller. No
attempt will be made by AT&T to perform rate or charge disclosure or
confirmation. If the Caller is under 18 years of age, Customer is responsible
for ensuring that the Caller has permission from a parent or guardian to
complete the call.
(3) If charges for a call exceed the Maximum Allowable Flat Rate Charge, or
the Maximum Allowable Premium Charge, or the Maximum Allowable Per Minute
Charge (as specified in the Agreement), the Customer will provide a corrected
record of the charge or rate to AT&T within two business days of AT&T's
request for such information. If Customer does not provide this information
within the specified time frame, AT&T will remove the charges recorded for
the call after the Vari-A-Bill rate or charge change was received by AT&T.
Customer will continue to be responsible for all tariffed charges and Billing
Services fees for such calls.
(4) If a Caller contacts AT&T and inquires about a charge or fee, claiming
that it exceeds the amount agreed between Caller and Customer, then AT&T may
request from Customer a verifiable record of Caller's agreement to the charge
or fee. If Customer fails to provide such a verifiable record within two
business days, and if Caller continues to request an adjustment, Customer
agrees that AT&T is authorized to credit Caller for the entire amount of the
call. Customer will continue to be responsible for all tariffed charges and
Billing Services fees for such calls.
(5) Customer shall ensure that its customer premises equipment ("CPE")
terminating the ISDN PRI facility has passed AT&T's ISDN Compatibility Test
Program. Customer shall provide AT&T with the following information
concerning its CPE: manufacturer, product code, release, date of AT&T ISDN
Compatibility Test. Customer shall ensure that any subsequent retrofits,
upgrades, modifications or other changes to its CPE used in connection with
AT&T Vari-A-Bill Service has passed AT&T's ISDN Compatibility Test Program.
Customer agrees to pay AT&T for all AT&T expenses that result from caller
inquiry, trouble isolation, resolution, and other work associated with
Customer's installation and operation of CPE that has not passed AT&T's ISDN
Compatibility Test Program.
(6) Customer is responsible for assigning a designated contact to resolve
Vari-A-Bill specific billing issues. If the designated contact changes,
Customer shall provide written notification to AT&T within 24 hours (One
business day).
(7) Charges for the Vari-A-Bill feature are in addition to the other tariffed
charges and Billing Services fees incurred by Customer.
B. Call Prompter Rating ("CPR") Feature is available with AT&T MULTIQUEST
Interacter Service or Express 900 Service.
(1) CPR affords the Customer the ability to vary the set of rating options to
a Caller (without changing the 900 telephone number) based upon responses
made to Call Prompter announcements. Rate sets can be individually assigned
to a maximum of four Call Prompter "branches" identified by specific bill
designator. These rates will apply when a caller from an AT&T 1+ Recording
Takeback Area, successfully enters the valid digits for the branch, otherwise
the default value applies.
(2) Full and complete rate disclosure in both Customer's advertisements and
in the programs' preamble and compliance with the AT&T CPR Guidelines are the
responsibilities of the Customer. Such disclosures must comply with, among
others, federal and state laws and regulations (including the Federal
Communications Commission's regulations regarding preambles to 900 programs
and the Federal Trade Commissions regulations).
(3) Charges for the CPR feature are in addition to the other tariffed charges
and Billing Services fees incurred by Customer.
<PAGE> 5
[AT&T LOGO] AT&T MASTER BILLING SERVICES AGREEMENT
AT&T MASTER BILLING SERVICES AGREEMENT NO. 004528MQ
===============================================================================
Customer Name AT&T Corp.
Consumer Data Solutions MultiQuest 900 Services
Customer Contact Name and Phone AT&T Contact Name and Phone
Carl Sherman / 972-298-3800 Michael Roy / 817-354-4597
Customer Address AT&T Office Address
402 W Wheatland, Suite 111 AT&T
12 Meadow Lane
City, State, Zip Code City, State, Zip Code
Duncanville, TX 75116 Bedford, TX 76021
===============================================================================
The AT&T MULTIQUEST(R) Services ("Billing Services") offered under this
Agreement are as follows (CHECK ONE):
<TABLE>
<S> <C>
[X] AT&T MULTIQUEST(R) Interacter Service [ ] AT&T MULTIQUEST(R) Express 900 Service
[ ] AT&T MULTIQUEST(R) HICAP Service [ ] Other AT&T MULTIQUEST Service
[ ]
-----------------------------------------------------
(Indicate Service and attach amendment, if applicable)
</TABLE>
AT&T MULTIQUEST(R) Billing Options (CHECK ONE):
[X] Caller Adjustment Process (CAP) [ ] 60/90 Delay Process
- -------------------------------------------------------------------------------
Additional Customer Programs may be detailed on the Additional Billing Services
Agreement forms(s) ONLY when using the same service requested here.
- -------------------------------------------------------------------------------
Initial Customer Program offering description and 900 numbers(s):
-------------
900-288-3569
- -------------------------------------------------------------------------------
Fundraising / Flower Delivery Program
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PRESALE # 141381
--------------------
CALLERS WILL BE BILLED THE FOLLOWING CHARGES FOR YOUR PROGRAM (select one of the
following):
<TABLE>
<S> <C>
[ ] $ 0 per initial minute and $ 0 per each additional minute(s)
_______________ _________
[ ] $ _______________ per call
ENHANCED RATE SET
[ ] $ _______________ per initial ______ minute(s) $ ________________ per additional _______ minute(s)
</TABLE>
VARI-A-BILL RATES (for use with AT&T MULTIQUEST Interacter Service only):
<TABLE>
<S> <C>
Maximum Per Minute Charge: $ Maximum Premium Charge: $
--------------- ------------------------
Maximum Flat Rate Charge: $ 60.00
---------------
</TABLE>
CALL PROMPTER RATING
Caller will be billed the following charges for you offer:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C>
__________ _______ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
CUSTOMER HEREBY DESIGNATES THE FOLLOWING CPR INFORMATION FOR THE 900 NUMBERS
SPECIFIED ABOVE:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Branch Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C> <C>
#1 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#2 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#3 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#4 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
- -------------------------------------------------------------------------------
BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT IT AGREES TO THE TERMS AND
CONDITIONS OF THE AGREEMENT INCLUDING THOSE ON THE REVERSE SIDE OF THIS FORM,
WHICH (AMONG OTHER THINGS) PROVIDE LIMITATIONS OF LIABILITY. THESE TERMS AND
CONDITIONS APPLY TO THIS ORDER, AND ANY SUBSEQUENT ORDER ACCEPTED BY AT&T UNDER
THIS AGREEMENT.
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
Consumer Data Solutions
- ----------------------------------------------- AT&T Corp.
(Customer)
Accepted By: Accepted By:
---------------------------------- ---------------------------------------
/s/ CARL O. SHERMAN
- ----------------------------------------------- ------------------------------------------------------
(Authorized Signature) (Authorized Signature)
Carl O. Sherman
- ----------------------------------------------- ------------------------------------------------------
(Printed/Typed Name) (Printed/Typed Name)
President & CEO
- ----------------------------------------------- ------------------------------------------------------
(Title) (Title)
4-4-98
- ----------------------------------------------- ------------------------------------------------------
(Date) (Date)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PRELIMINARY CUSTOMER COPY
<PAGE> 6
The following Terms and Conditions shall apply to the Billing Services provided
by AT&T under this Agreement to Customer for the 900 number telephone Programs
listed on the front of this Agreement, or in Supplemental Billing Services
Agreements which reference this Agreement ("Billing Services").
GENERAL TERMS AND CONDITIONS
- --------------------------------------------------------------------------------
1. BILLING COLLECTION AND CALL INQUIRY SERVICES
A. Acting as Customer's agent, AT&T will perform the following services for
Customer's Programs:
(1) secure usage records; message processing; bill processing; bill rendering;
inquiry; collection; and remittance services.
(2) your Customers ("Caller's") will be billed for the charges associated with
your program(s). AT&T will remit collected charges to you, less any fees as
indicated in this Agreement.
(3) provide good faith efforts to collect Customer charges from Caller's.
However, AT&T has no obligation to bring collection suits or to use collection
agencies, and AT&T may remove from a Caller's bill Program charges with which
the Caller disputes or refuses to pay. If the Caller's bill is adjusted,
Customer shall still remain liable for the Billing Services fees and tariffed
charges associated with each call.
B. Within ninety days after the end of the month in which the calls were made
to Customer's Program(s), AT&T shall remit to Customer the net amount of
Customer's charges for the billing period. The net amount will reflect the
following deductions:
(1) AT&T's fees and charges for tariffed Services,
(2) AT&T's fees and charges for billing Services,
(3) Any applicable federal, state and local taxes, however designated, unless
Customer has provided AT&T with a valid tax exemption certificate or statute;
(4) Uncollectable amounts, including among others, amounts that caller's refuse
to pay, amounts that have not been billed to caller by the local service
provider; and
(5) Amounts removed from callers' bills by AT&T, the local exchange companies
("LEC's") or other local service provider.
C. Notwithstanding the remittance described in Section 1.B above, AT&T may
"true up" these deductions based upon any additional uncollectable amounts
discovered within twelve months after the Caller's underlying call to the 900
program was made; and may implement this "true up" against remittances for
subsequent months, AT&T may also delay all or a portion of its payment of funds
at any time during the contractual relationship, continuing for up to twelve
months following termination of Customer's Program Billing Services. When
determining whether to delay all or a portion of payment to Customer, AT&T will
consider, among other factors, Customer's credit history, the length of time
Customer has been the Customer of Record, and the projected refund rate of
Customer's total billed account as determined by AT&T.
D. AT&T may apply any payments to any outstanding debt incurred by Customer.
E. AT&T reserves the right to block access to all AT&T 900 numbers from the
telephone stations of any Caller who, in AT&T's sole discretion, is carrying an
excessive unpaid balance of charges for calls made to Programs billed by AT&T,
or appears to be engaged in any fraudulent or abusive practice.
2. CONTINGENT AGREEMENT
This agreement is contingent upon AT&T's ability to secure Billing for
Customer's Programs. AT&T will make good faith efforts to secure such services.
3. BILLING SERVICES FEE
A. For calls using AT&T MULTIQUEST Interacter Service, the Billing Service fee
is 10 percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST HICAP, the Billing Service fee is 10
percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST Express 900 service, the Billing
Service fee is 15 percent of the Customer's charge to callers, or $0.12 per
call, whichever is greater. All fees are exclusive of applicable sales, use or
gross receipts taxes. AT&T may change the Billing Services fees upon thirty
days written notice to Customer.
B. For AT&T MULTIQUEST interacter, AT&T MULTIQUEST HICAP, and AT&T MULTIQUEST
Express 900 Service, charges include partial minutes rounded up to full minutes.
C. In any dispute regarding the number of calls to Programs, or the total
minutes billed, AT&T's records shall control.
4. COMPLIANCE WITH AT&T MULTIQUEST PREMIUM BILLING GUIDELINES
Customer's Programs and related advertising and business practices shall at all
times conform to all applicable federal, state and local laws and regulations,
as well as with the "AT&T MULTIQUEST Premium Billing Guidelines" ("Guidelines")
as these may be modified by AT&T from time to time. These Guidelines are
specifically incorporated by reference into this Agreement. Customer
acknowledges that it has been provided with a copy of the current Guidelines.
5. CUSTOMER RESPONSIBILITIES; INDEMNIFICATION OF AT&T
A. Customer shall pay all charges for the tariffed services to which it
subscribes. Customer may not advise callers that they are obligated to pay
AT&T's tariffed charges applicable to the Customer's Programs.
B. Customer shall provide AT&T a complete written description of each Program
(including without limitation copies of all advertising for the program and all
scripts) prior to its commencement and a complete new written description of
any change (including without limitation price changes) in the Program or
advertising before any such change is implemented.
C. Customer is solely responsible for its Program(s) and all promotions and
advertising.
D. Customer shall provide AT&T with a name, street address and telephone number
that may be disclosed to callers or other interested parties who request it. If
the information provider for a Program is different from the Customer, Customer
shall provide AT&T with the name, mailing address and customer service
telephone number of the information provider, and Customer represents that AT&T
may freely disclose such information to those who request it.
E. When the Guidelines require the Customer to agree to 100% adjustments by
AT&T to all callers requesting refunds, the Customer shall not initiate,
directly or indirectly through any third party, any action to collect charges
from a caller who has obtained an adjustment from AT&T.
F. Customer shall not indicate by any means that AT&T endorses or is affiliated
with Customer's Programs in any way, and shall not use any AT&T trademark,
service mark or logo without the express written permission of AT&T.
G. Customer represents and warrants that its Program(s) will at all times
comply with all applicable federal, state and local laws, rules, regulations
and ordinances. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD AT&T (AS DEFINED IN
SECTION 10.A) HARMLESS FROM ALL CLAIMS, ACTIONS, DAMAGES, COMPLAINTS, EXPENSES
AND REASONABLE ATTORNEYS' FEES (COLLECTIVELY, "CLAIMS") ARISING IN CONNECTION
WITH OR RELATING TO THIS AGREEMENT OUT OF (1) CUSTOMER'S PRODUCTS OR SERVICES,
MESSAGES, PROGRAMS, CALLER CONTACTS, COLLECTION ACTIVITIES, PROMOTIONS,
ADVERTISING, LIBEL OR SLANDER; OR (2) ANY FAILURE ON CUSTOMER'S PART TO COMPLY
WITH ANY LAW, RULE, REGULATION, OR ORDINANCE. AT&T, IN ITS SOLE DISCRETION, MAY
ELECT TO CONTROL ITS OWN DEFENSE AGAINST ANY SUCH CLAIMS, WITHOUT ELIMINATING
OR LIMITING IN ANY WAY CUSTOMER'S INDEMNITY OBLIGATIONS UNDER THIS SECTION.
H. Customer agrees and acknowledges that AT&T's agreement to provide Billing
Services for any Program does not constitute a determination that Customer is
in compliance with any or all applicable laws with respect to such Program.
I. AT&T is not responsible for the determination, application, collection or
remittance of any taxes due or which may become due with respect to charges
made to callers for Customer's Programs, except as may be directed by taxing
authorities.
6. TELEPHONE NUMBER CHANGES
Nothing under this Agreement creates an ownership or other interest in the
telephone number assigned for a Program. AT&T reserves the right to change the
900 telephone number assigned to a Program whenever AT&T determines that such a
change is necessary or desirable for its provision of tariffed services or
Billing Services. Upon termination of Billing Services for any Program, AT&T
will assign a different 900 telephone number if Customer elects to continue to
use AT&T's tariffed services.
7. TERM AND TERMINATION
A. This Agreement is effective when signed by Customer's agent and accepted in
writing by AT&T. Either party may terminate this Agreement or the Billing
Services for one or more particular Customer Programs upon thirty days prior
written notice to the other party specifying the exact date of such
termination.
B. Customer may cancel this Agreement without termination liability if AT&T
fails to perform or observe any material term or condition of this Agreement
and such failure continues unremedied for thirty days after AT&T receives
written notice of such failure from Customer.
C. AT&T may immediately terminate this Agreement, or the Billing Services for
one or more particular Customer Programs, if AT&T in its sole discretion
determines that (1) AT&T's provision of tariffed services may be adversely
affected by the applicable Program(s), or by the provision of Billing Services;
(2) that the Program(s) or the provision of Billing Services may adversely
affect AT&T's public image, reputation or goodwill; (3) A LEC or other local
service provider will not provide needed services, or will not provide them at
rates or on terms acceptable to AT&T; (4) Customer (or Customer's information
provider or other customer) has not complied with the current Guidelines,
regardless of whether AT&T has previously reviewed or released the particular
Programs or advertising, or (5) Customer has breached this Agreement. In
addition, AT&T may immediately terminate this Agreement, or the Billing
Services for one or more particular Customer Program(s) if, (1) AT&T receives
any complaint regarding Customer's Program(s) or any related messages,
representations, promotions, advertising, products or services; (2) any claim
is made against AT&T arising from Customer's Program(s) or any related
messages, representations, promotions, advertising, products or services; (3)
Customer or its Program(s) become the subject of a government investigation,
lawsuit, or criminal action.
D. On receipt of any claim or complaint against Customer in connection with
AT&T's Billing Services, upon notice of an investigation by a law enforcement
agency, if AT&T has reason to believe that Customer is defrauding AT&T, or if a
dispute arises in connection with Customer's assignment of revenues, AT&T may
deposit all amounts then or thereafter due to Customer or its assignee in an
escrow account pending the resolution of all such claims, complaints and
disputes.
E. Unless otherwise agreed to in writing, this Agreement shall terminate
automatically if Customer does not order appropriate AT&T tariffed services and
request installation within 90 days of assignment of a 900 telephone number.
F. Upon termination of Billing Services by AT&T, Customer shall be liable for
all applicable charges, including any applicable termination charge.
G. AT&T may, at its option, perform a credit check on Customer at any time, and
may terminate this Agreement if it determines that Customer's credit history is
unsatisfactory.
8. TELECOMMUNICATIONS SERVICES
This Agreement does not offer or affect tariffed services. If this Agreement
conflicts with any AT&T tariff, the tariff shall govern. Charges under this
Agreement will not be affected by outages or degradation in tariffed services,
and charges for tariffed services will not be affected by performance under
this Agreement.
9. WARRANTY AND DISCLAIMER
AT&T shall use reasonable efforts to provide Billing Services of a quality
consistent with the billing for its own services. Customer and AT&T shall
notify each other when billing discrepancies are discovered. AT&T shall
promptly explain or correct billing discrepancies. Each party further agrees to
provide the other with necessary information it has or acquires to help
identify the cause of an error and its correction. The above warranty is the
only warranty provided in connection with this Agreement. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR QUALITY, OR SUITABILITY FOR CALLERS OF YOUR PRODUCTS OR
SERVICES.
10. LIMITATIONS AND LIABILITY
A. "AT&T" SHALL BE DEEMED TO INCLUDE AT&T, ITS SUBSIDIARIES AND THEIR
AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,
SUB-CONTRACTORS AND SUPPLIERS OF ALL OF THEM. "DAMAGES" SHALL REFER TO ALL
INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
B. AT&T'S ENTIRE LIABILITY TO CUSTOMER FOR ANY DAMAGES CAUSED BY AT&T'S
PERFORMANCE OR NON-PERFORMANCE OF BILLING SERVICES UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED, AS FOLLOWS:
(1) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR
DEATH TO ANY PERSON NEGLIGENTLY CAUSED BY AT&T, AT&T'S LIABILITY SHALL BE THE
PROVEN DAMAGES TO PROPERTY OR PERSON;
(2) FOR ALL OTHER CLAIMS, AT&T'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT
DAMAGES IN AN AMOUNT NOT TO EXCEED $50,000.
C. AT&T SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, SAVINGS OR
REVENUES OF ANY KIND, WHETHER OR NOT AT&T HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
11. FORCE MAJEURE
AT&T shall have no liability for delays or damages due to fire, explosion,
lightening, pest damage, power surges or failures, strikes or labor disputes,
water, acts of God, the elements, war, civil disturbances, acts of civil or
military authorities, including but not limited to any regulatory agencies
having jurisdiction over AT&T, the LECs or other local service provider, acts of
the public enemy, inability to secure raw materials, transportation facilities,
fuel or energy shortages, acts or omissions of any common carrier or its agent
(including among others the LECs), or other causes beyond AT&T's control whether
or not similar to the foregoing.
12. ASSIGNMENT OR TRANSFER
Neither party may assign or transfer this Agreement without the prior written
consent of the other party. Consent shall not be unreasonably withheld. AT&T
may assign this Agreement to a present or future affiliate or subsidiary or
assign its right to receive payment. If Customer assigns or transfers the
revenues due under this Agreement, in addition to obtaining AT&T's prior
written consent, it must: (1) give AT&T at least thirty days notice of the
effective date of the assignment; (2) designate the specific account or
account numbers and "900" telephone numbers to which the assignment applies;
and (3) waive all rights to move existing Programs from an assigned account. An
assignment or transfer by Customer authorizes AT&T to disclose to the assignee
or transferee financial and other relevant data concerning the affected
Programs.
13. NO THIRD PARTY BENEFICIARY
This Agreement is solely for the benefit of the parties. No third party,
including but not limited to Callers and Customer's downstream customers, is
intended to benefit from this Agreement or have claims against either party for
its performance or nonperformance.
14. DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement, or its breach, and if
such dispute cannot be settled through discussion and negotiation of the
parties, the parties agree to submit the dispute to a sole mediator selected by
the parties or, at any time at the option of a party, to mediation or
arbitration by the American Arbitration Association ("AAA").
15. GENERAL
A. Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by the authorized representatives of both parties.
B. If any portion of this Agreement is found to be invalid or unenforceable,
the remaining portions shall remain in effect. In the event each invalid or
unenforceable portion is an essential part of this agreement, the parties will
immediately negotiate a replacement.
C. If either party ever fails to enforce any right or remedy available to it
under this Agreement, that failure shall not be construed as a waiver of any
right or remedy with respect to any other breach or failure by the other party.
D. Any legal action you bring against AT&T with respect to this Agreement must
begin within two (2) years after the cause of action arises.
E. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
F. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LOCAL LAWS OF THE STATE OF NEW YORK.
16. FEATURES
The features described here do not fully represent all offers associated with
AT&T MULTIQUEST Services.
A. AT&T's Vari-A-Bill feature is available with Billing Services for AT&T
MULTIQUEST Interacter Service. This feature allows Customer to change the rate
at which the caller is to be charged (the "Caller Rate") at a
Customer-determined time during the call. Customer shall change the Caller Rate
by issuing a Vari-A-Bill Rate Change Request to AT&T, specifying the new Caller
Rate, over an Integrated Services Digital Network ("ISDN") Primary Rate
Interface ("PRI") obtained under tariff or separate contract from AT&T by the
Customer.
(1) Using the Vari-A-Bill feature, Customer may follow AT&T-provided
procedures to change the Caller Rate to a flat (per call) charge, a free
call, a premium charge, a premium credit, or a new rate for the remaining
time of the call.
(2) Full and complete rate disclosure in both Customer's advertisements, and
in the Customer's Program preamble(s), is the responsibility of the Customer.
Such disclosures must comply with, among others, federal and state laws and
regulations (including the Federal Communications Commission's regulations
regarding preambles to pay-per-call programs and the Federal Trade
Commissions regulations). Before sending a Vari-A-Bill Rate Change request,
Customer must inform the Caller of the new rate or charge, and gain
confirmation or acceptance of the new rate or charge from the Caller. No
attempt will be made by AT&T to perform rate or charge disclosure or
confirmation. If the Caller is under 18 years of age, Customer is responsible
for ensuring that the Caller has permission from a parent or guardian to
complete the call.
(3) If charges for a call exceed the Maximum Allowable Flat Rate Charge, or
the Maximum Allowable Premium Charge, or the Maximum Allowable Per Minute
Charge (as specified in the Agreement), the Customer will provide a corrected
record of the charge or rate to AT&T within two business days of AT&T's
request for such information. If Customer does not provide this information
within the specified time frame, AT&T will remove the charges recorded for
the call after the Vari-A-Bill rate or charge change was received by AT&T.
Customer will continue to be responsible for all tariffed charges and Billing
Services fees for such calls.
(4) If a Caller contacts AT&T and inquires about a charge or fee, claiming
that it exceeds the amount agreed between Caller and Customer, then AT&T may
request from Customer a verifiable record of Caller's agreement to the charge
or fee. If Customer fails to provide such a verifiable record within two
business days, and if Caller continues to request an adjustment, Customer
agrees that AT&T is authorized to credit Caller for the entire amount of the
call. Customer will continue to be responsible for all tariffed charges and
Billing Services fees for such calls.
(5) Customer shall ensure that its customer premises equipment ("CPE")
terminating the ISDN PRI facility has passed AT&T's ISDN Compatibility Test
Program. Customer shall provide AT&T with the following information
concerning its CPE: manufacturer, product code, release, date of AT&T ISDN
Compatibility Test. Customer shall ensure that any subsequent retrofits,
upgrades, modifications or other changes to its CPE used in connection with
AT&T Vari-A-Bill Service has passed AT&T's ISDN Compatibility Test Program.
Customer agrees to pay AT&T for all AT&T expenses that result from caller
inquiry, trouble isolation, resolution, and other work associated with
Customer's installation and operation of CPE that has not passed AT&T's ISDN
Compatibility Test Program.
(6) Customer is responsible for assigning a designated contact to resolve
Vari-A-Bill specific billing issues. If the designated contact changes,
Customer shall provide written notification to AT&T within 24 hours (One
business day).
(7) Charges for the Vari-A-Bill feature are in addition to the other tariffed
charges and Billing Services fees incurred by Customer.
B. Call Prompter Rating ("CPR") Feature is available with AT&T MULTIQUEST
Interacter Service or Express 900 Service.
(1) CPR affords the Customer the ability to vary the set of rating options to
a Caller (without changing the 900 telephone number) based upon responses
made to Call Prompter announcements. Rate sets can be individually assigned
to a maximum of four Call Prompter "branches" identified by specific bill
designator. These rates will apply when a caller from an AT&T 1+ Recording
Takeback Area, successfully enters the valid digits for the branch, otherwise
the default value applies.
(2) Full and complete rate disclosure in both Customer's advertisements and
in the programs' preamble and compliance with the AT&T CPR Guidelines are the
responsibilities of the Customer. Such disclosures must comply with, among
others, federal and state laws and regulations (including the Federal
Communications Commission's regulations regarding preambles to 900 programs
and the Federal Trade Commissions regulations).
(3) Charges for the CPR feature are in addition to the other tariffed charges
and Billing Services fees incurred by Customer.
<PAGE> 7
[AT&T LOGO] AT&T MASTER BILLING SERVICES AGREEMENT
AT&T MASTER BILLING SERVICES AGREEMENT NO. 004524MQ
===============================================================================
Customer Name AT&T Corp.
Consumer Data Solutions MultiQuest 900 Services
Customer Contact Name and Phone AT&T Contact Name and Phone
Carl Sherman / 972-298-3800 Michael Roy / 817-854-4597
Customer Address AT&T Office Address
402 W Wheatland, Suite 111 AT&T
12 Meadow Lane
City, State, Zip Code City, State, Zip Code
Duncanville, TX 75116 Bedford, TX 76021
===============================================================================
The AT&T MULTIQUEST(R) Services ("Billing Services") offered under this
Agreement are as follows (CHECK ONE):
<TABLE>
<S> <C>
[X] AT&T MULTIQUEST(R) Interacter Service [ ] AT&T MULTIQUEST(R) Express 900 Service
[ ] AT&T MULTIQUEST(R) HICAP Service [ ] Other AT&T MULTIQUEST Service
[ ]
-----------------------------------------------------
(Indicate Service and attach amendment, if applicable)
</TABLE>
AT&T MULTIQUEST(R) Billing Options (CHECK ONE):
[X] Caller Adjustment Process (CAP) [ ] 60/90 Delay Process
- -------------------------------------------------------------------------------
Additional Customer Programs may be detailed on the Additional Billing Services
Agreement form(s) ONLY when using the same service requested here.
- -------------------------------------------------------------------------------
Initial Customer Program offering descriptions and 900 numbers(s):
------------
900-288-4663
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PRESALE #
--------------------
CALLER WILL BE BILLED THE FOLLOWING CHARGES FOR YOUR PROGRAM (select one of the
following):
<TABLE>
<S> <C> <C> <C> <C>
[X] $ 0 per initial minute and $ 0 per each additional minute(s)
_______________ ________________
[ ] $ _______________ per call
ENHANCED RATE SET
[ ] $ _______________ per initial ______ minute(s) $ ________________ per additional _______ minute(s)
</TABLE>
VARI-A-BILL RATES (for use with AT&T MULTIQUEST Interacter Service only):
<TABLE>
<S> <C> <C> <C>
Maximum Per Minute Charge: $ Maximum Premium Charge: $
--------------- ------------------------
Maximum Flat Rate Charge: $ 60.00
---------------
</TABLE>
CALL PROMPTER RATING
Caller will be billed the following charges for you offer:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C>
__________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
CUSTOMER HEREBY DESIGNATES THE FOLLOWING CPR INFORMATION FOR THE 900 NUMBERS
SPECIFIED ABOVE:
<TABLE>
<CAPTION>
Caller Initial Additional
Bill Entered Free Initial Period Additional Period
Branch Designator Digits Period Period Rate Period Rate
<S> <C> <C> <C> <C> <C> <C> <C>
#1 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#2 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#3 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
#4 __________ __ __ __ __ __ __ __ __ $__.___ __ __ $ __.__
HH MM SS HH MM HH MM
</TABLE>
- -------------------------------------------------------------------------------
BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT IT AGREES TO THE TERMS AND
CONDITIONS OF THE AGREEMENT INCLUDING THOSE ON THE REVERSE SIDE OF THIS FORM,
WHICH (AMONG OTHER THINGS) PROVIDE LIMITATIONS OF LIABILITY. THESE TERMS AND
CONDITIONS APPLY TO THIS ORDER, AND ANY SUBSEQUENT ORDER ACCEPTED BY AT&T UNDER
THIS AGREEMENT.
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
Consumer Data Solutions
- ----------------------------------------------- AT&T Corp.
(Customer)
Accepted By: Accepted By:
---------------------------------- ---------------------------------------
/s/ CARL O. SHERMAN
- ----------------------------------------------- ------------------------------------------------------
(Authorized Signature) (Authorized Signature)
Carl O. Sherman
- ----------------------------------------------- ------------------------------------------------------
(Printed/Typed Name) (Printed/Typed Name)
President & CEO
- ----------------------------------------------- ------------------------------------------------------
(Title) (Title)
5-5-98
- ----------------------------------------------- ------------------------------------------------------
(Date) (Date)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
PRELIMINARY CUSTOMER COPY
<PAGE> 8
The following Terms and Conditions shall apply to the Billing Services provided
by AT&T under this Agreement to Customer for the 900 number telephone Programs
listed on the front of this Agreement, or in Supplemental Billing Services
Agreements which reference this Agreement ("Billing Services").
GENERAL TERMS AND CONDITIONS
- --------------------------------------------------------------------------------
1. BILLING COLLECTION AND CALL INQUIRY SERVICES
A. Acting as Customer's agent, AT&T will perform the following services for
Customer's Programs:
(1) secure usage records; message processing; bill processing; bill rendering;
inquiry; collection; and remittance services.
(2) your Customers ("Caller's") will be billed for the charges associated with
your program(s). AT&T will remit collected charges to you, less any fees as
indicated in this Agreement.
(3) provide good faith efforts to collect Customer charges from Caller's.
However, AT&T has no obligation to bring collection suits or to use collection
agencies, and AT&T may remove from a Caller's bill Program charges with which
the Caller disputes or refuses to pay. If the Caller's bill is adjusted,
Customer shall still remain liable for the Billing Services fees and tariffed
charges associated with each call.
B. Within ninety days after the end of the month in which the calls were made
to Customer's Program(s), AT&T shall remit to Customer the net amount of
Customer's charges for the billing period. The net amount will reflect the
following deductions:
(1) AT&T's fees and charges for tariffed Services,
(2) AT&T's fees and charges for billing Services,
(3) Any applicable federal, state and local taxes, however designated, unless
Customer has provided AT&T with a valid tax exemption certificate or statute;
(4) Uncollectable amounts, including among others, amounts that caller's refuse
to pay, amounts that have not been billed to caller by the local service
provider; and
(5) Amounts removed from callers' bills by AT&T, the local exchange companies
("LEC's") or other local service provider.
C. Notwithstanding the remittance described in Section 1.B above, AT&T may
"true up" these deductions based upon any additional uncollectable amounts
discovered within twelve months after the Caller's underlying call to the 900
program was made; and may implement this "true up" against remittances for
subsequent months, AT&T may also delay all or a portion of its payment of funds
at any time during the contractual relationship, continuing for up to twelve
months following termination of Customer's Program Billing Services. When
determining whether to delay all or a portion of payment to Customer, AT&T will
consider, among other factors, Customer's credit history, the length of time
Customer has been the Customer of Record, and the projected refund rate of
Customer's total billed account as determined by AT&T.
D. AT&T may apply any payments to any outstanding debt incurred by Customer.
E. AT&T reserves the right to block access to all AT&T 900 numbers from the
telephone stations of any Caller who, in AT&T's sole discretion, is carrying an
excessive unpaid balance of charges for calls made to Programs billed by AT&T,
or appears to be engaged in any fraudulent or abusive practice.
2. CONTINGENT AGREEMENT
This agreement is contingent upon AT&T's ability to secure Billing for
Customer's Programs. AT&T will make good faith efforts to secure such services.
3. BILLING SERVICES FEE
A. For calls using AT&T MULTIQUEST Interacter Service, the Billing Service fee
is 10 percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST HICAP, the Billing Service fee is 10
percent of Customer's charge to callers, or $0.12 per call, whichever is
greater. For calls using AT&T MULTIQUEST Express 900 service, the Billing
Service fee is 15 percent of the Customer's charge to callers, or $0.12 per
call, whichever is greater. All fees are exclusive of applicable sales, use or
gross receipts taxes. AT&T may change the Billing Services fees upon thirty
days written notice to Customer.
B. For AT&T MULTIQUEST interacter, AT&T MULTIQUEST HICAP, and AT&T MULTIQUEST
Express 900 Service, charges include partial minutes rounded up to full minutes.
C. In any dispute regarding the number of calls to Programs, or the total
minutes billed, AT&T's records shall control.
4. COMPLIANCE WITH AT&T MULTIQUEST PREMIUM BILLING GUIDELINES
Customer's Programs and related advertising and business practices shall at all
times conform to all applicable federal, state and local laws and regulations,
as well as with the "AT&T MULTIQUEST Premium Billing Guidelines" ("Guidelines")
as these may be modified by AT&T from time to time. These Guidelines are
specifically incorporated by reference into this Agreement. Customer
acknowledges that it has been provided with a copy of the current Guidelines.
5. CUSTOMER RESPONSIBILITIES; INDEMNIFICATION OF AT&T
A. Customer shall pay all charges for the tariffed services to which it
subscribes. Customer may not advise callers that they are obligated to pay
AT&T's tariffed charges applicable to the Customer's Programs.
B. Customer shall provide AT&T a complete written description of each Program
(including without limitation copies of all advertising for the program and all
scripts) prior to its commencement and a complete new written description of
any change (including without limitation price changes) in the Program or
advertising before any such change is implemented.
C. Customer is solely responsible for its Program(s) and all promotions and
advertising.
D. Customer shall provide AT&T with a name, street address and telephone number
that may be disclosed to callers or other interested parties who request it. If
the information provider for a Program is different from the Customer, Customer
shall provide AT&T with the name, mailing address and customer service
telephone number of the information provider, and Customer represents that AT&T
may freely disclose such information to those who request it.
E. When the Guidelines require the Customer to agree to 100% adjustments by
AT&T to all callers requesting refunds, the Customer shall not initiate,
directly or indirectly through any third party, any action to collect charges
from a caller who has obtained an adjustment from AT&T.
F. Customer shall not indicate by any means that AT&T endorses or is affiliated
with Customer's Programs in any way, and shall not use any AT&T trademark,
service mark or logo without the express written permission of AT&T.
G. Customer represents and warrants that its Program(s) will at all times
comply with all applicable federal, state and local laws, rules, regulations
and ordinances. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD AT&T (AS DEFINED IN
SECTION 10.A) HARMLESS FROM ALL CLAIMS, ACTIONS, DAMAGES, COMPLAINTS, EXPENSES
AND REASONABLE ATTORNEYS' FEES (COLLECTIVELY, "CLAIMS") ARISING IN CONNECTION
WITH OR RELATING TO THIS AGREEMENT OUT OF (1) CUSTOMER'S PRODUCTS OR SERVICES,
MESSAGES, PROGRAMS, CALLER CONTACTS, COLLECTION ACTIVITIES, PROMOTIONS,
ADVERTISING, LIBEL OR SLANDER; OR (2) ANY FAILURE ON CUSTOMER'S PART TO COMPLY
WITH ANY LAW, RULE, REGULATION, OR ORDINANCE. AT&T, IN ITS SOLE DISCRETION, MAY
ELECT TO CONTROL ITS OWN DEFENSE AGAINST ANY SUCH CLAIMS, WITHOUT ELIMINATING
OR LIMITING IN ANY WAY CUSTOMER'S INDEMNITY OBLIGATIONS UNDER THIS SECTION.
H. Customer agrees and acknowledges that AT&T's agreement to provide Billing
Services for any Program does not constitute a determination that Customer is
in compliance with any or all applicable laws with respect to such Program.
I. AT&T is not responsible for the determination, application, collection or
remittance of any taxes due or which may become due with respect to charges
made to callers for Customer's Programs, except as may be directed by taxing
authorities.
6. TELEPHONE NUMBER CHANGES
Nothing under this Agreement creates an ownership or other interest in the
telephone number assigned for a Program. AT&T reserves the right to change the
900 telephone number assigned to a Program whenever AT&T determines that such a
change is necessary or desirable for its provision of tariffed services or
Billing Services. Upon termination of Billing Services for any Program, AT&T
will assign a different 900 telephone number if Customer elects to continue to
use AT&T's tariffed services.
7. TERM AND TERMINATION
A. This Agreement is effective when signed by Customer's agent and accepted in
writing by AT&T. Either party may terminate this Agreement or the Billing
Services for one or more particular Customer Programs upon thirty days prior
written notice to the other party specifying the exact date of such
termination.
B. Customer may cancel this Agreement without termination liability if AT&T
fails to perform or observe any material term or condition of this Agreement
and such failure continues unremedied for thirty days after AT&T receives
written notice of such failure from Customer.
C. AT&T may immediately terminate this Agreement, or the Billing Services for
one or more particular Customer Programs, if AT&T in its sole discretion
determines that (1) AT&T's provision of tariffed services may be adversely
affected by the applicable Program(s), or by the provision of Billing Services;
(2) that the Program(s) or the provision of Billing Services may adversely
affect AT&T's public image, reputation or goodwill; (3) A LEC or other local
service provider will not provide needed services, or will not provide them at
rates or on terms acceptable to AT&T; (4) Customer (or Customer's information
provider or other customer) has not complied with the current Guidelines,
regardless of whether AT&T has previously reviewed or released the particular
Programs or advertising, or (5) Customer has breached this Agreement. In
addition, AT&T may immediately terminate this Agreement, or the Billing
Services for one or more particular Customer Program(s) if, (1) AT&T receives
any complaint regarding Customer's Program(s) or any related messages,
representations, promotions, advertising, products or services; (2) any claim
is made against AT&T arising from Customer's Program(s) or any related
messages, representations, promotions, advertising, products or services; (3)
Customer or its Program(s) become the subject of a government investigation,
lawsuit, or criminal action.
D. On receipt of any claim or complaint against Customer in connection with
AT&T's Billing Services, upon notice of an investigation by a law enforcement
agency, if AT&T has reason to believe that Customer is defrauding AT&T, or if a
dispute arises in connection with Customer's assignment of revenues, AT&T may
deposit all amounts then or thereafter due to Customer or its assignee in an
escrow account pending the resolution of all such claims, complaints and
disputes.
E. Unless otherwise agreed to in writing, this Agreement shall terminate
automatically if Customer does not order appropriate AT&T tariffed services and
request installation within 90 days of assignment of a 900 telephone number.
F. Upon termination of Billing Services by AT&T, Customer shall be liable for
all applicable charges, including any applicable termination charge.
G. AT&T may, at its option, perform a credit check on Customer at any time, and
may terminate this Agreement if it determines that Customer's credit history is
unsatisfactory.
8. TELECOMMUNICATIONS SERVICES
This Agreement does not offer or affect tariffed services. If this Agreement
conflicts with any AT&T tariff, the tariff shall govern. Charges under this
Agreement will not be affected by outages or degradation in tariffed services,
and charges for tariffed services will not be affected by performance under
this Agreement.
9. WARRANTY AND DISCLAIMER
AT&T shall use reasonable efforts to provide Billing Services of a quality
consistent with the billing for its own services. Customer and AT&T shall
notify each other when billing discrepancies are discovered. AT&T shall
promptly explain or correct billing discrepancies. Each party further agrees to
provide the other with necessary information it has or acquires to help
identify the cause of an error and its correction. The above warranty is the
only warranty provided in connection with this Agreement. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR QUALITY, OR SUITABILITY FOR CALLERS OF YOUR PRODUCTS OR
SERVICES.
10. LIMITATIONS AND LIABILITY
A. "AT&T" SHALL BE DEEMED TO INCLUDE AT&T, ITS SUBSIDIARIES AND THEIR
AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,
SUB-CONTRACTORS AND SUPPLIERS OF ALL OF THEM. "DAMAGES" SHALL REFER TO ALL
INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
B. AT&T'S ENTIRE LIABILITY TO CUSTOMER FOR ANY DAMAGES CAUSED BY AT&T'S
PERFORMANCE OR NON-PERFORMANCE OF BILLING SERVICES UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED, AS FOLLOWS:
(1) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR
DEATH TO ANY PERSON NEGLIGENTLY CAUSED BY AT&T, AT&T'S LIABILITY SHALL BE THE
PROVEN DAMAGES TO PROPERTY OR PERSON;
(2) FOR ALL OTHER CLAIMS, AT&T'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT
DAMAGES IN AN AMOUNT NOT TO EXCEED $50,000.
C. AT&T SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, SAVINGS OR
REVENUES OF ANY KIND, WHETHER OR NOT AT&T HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
11. FORCE MAJEURE
AT&T shall have no liability for delays or damages due to fire, explosion,
lightening, pest damage, power surges or failures, strikes or labor disputes,
water, acts of God, the elements, war, civil disturbances, acts of civil or
military authorities, including but not limited to any regulatory agencies
having jurisdiction over AT&T, the LECs or other local service provider, acts of
the public enemy, inability to secure raw materials, transportation facilities,
fuel or energy shortages, acts or omissions of any common carrier or its agent
(including among others the LECs), or other causes beyond AT&T's control whether
or not similar to the foregoing.
12. ASSIGNMENT OR TRANSFER
Neither party may assign or transfer this Agreement without the prior written
consent of the other party. Consent shall not be unreasonably withheld. AT&T
may assign this Agreement to a present or future affiliate or subsidiary or
assign its right to receive payment. If Customer assigns or transfers the
revenues due under this Agreement, in addition to obtaining AT&T's prior
written consent, it must: (1) give AT&T at least thirty days notice of the
effective date of the assignment; (2) designate the specific account or
account numbers and "900" telephone numbers to which the assignment applies;
and (3) waive all rights to move existing Programs from an assigned account. An
assignment or transfer by Customer authorizes AT&T to disclose to the assignee
or transferee financial and other relevant data concerning the affected
Programs.
13. NO THIRD PARTY BENEFICIARY
This Agreement is solely for the benefit of the parties. No third party,
including but not limited to Callers and Customer's downstream customers, is
intended to benefit from this Agreement or have claims against either party for
its performance or nonperformance.
14. DISPUTE RESOLUTION
If a dispute arises out of or relates to this Agreement, or its breach, and if
such dispute cannot be settled through discussion and negotiation of the
parties, the parties agree to submit the dispute to a sole mediator selected by
the parties or, at any time at the option of a party, to mediation or
arbitration by the American Arbitration Association ("AAA").
15. GENERAL
A. Any supplement, modification or waiver of any provision of this Agreement
must be in writing and signed by the authorized representatives of both parties.
B. If any portion of this Agreement is found to be invalid or unenforceable,
the remaining portions shall remain in effect. In the event each invalid or
unenforceable portion is an essential part of this agreement, the parties will
immediately negotiate a replacement.
C. If either party ever fails to enforce any right or remedy available to it
under this Agreement, that failure shall not be construed as a waiver of any
right or remedy with respect to any other breach or failure by the other party.
D. Any legal action you bring against AT&T with respect to this Agreement must
begin within two (2) years after the cause of action arises.
E. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SERVICES PROVIDED HEREUNDER AND SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL.
F. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LOCAL LAWS OF THE STATE OF NEW YORK.
16. FEATURES
The features described here do not fully represent all offers associated with
AT&T MULTIQUEST Services.
A. AT&T's Vari-A-Bill feature is available with Billing Services for AT&T
MULTIQUEST Interacter Service. This feature allows Customer to change the rate
at which the caller is to be charged (the "Caller Rate") at a
Customer-determined time during the call. Customer shall change the Caller Rate
by issuing a Vari-A-Bill Rate Change Request to AT&T, specifying the new Caller
Rate, over an Integrated Services Digital Network ("ISDN") Primary Rate
Interface ("PRI") obtained under tariff or separate contract from AT&T by the
Customer.
(1) Using the Vari-A-Bill feature, Customer may follow AT&T-provided
procedures to change the Caller Rate to a flat (per call) charge, a free
call, a premium charge, a premium credit, or a new rate for the remaining
time of the call.
(2) Full and complete rate disclosure in both Customer's advertisements, and
in the Customer's Program preamble(s), is the responsibility of the Customer.
Such disclosures must comply with, among others, federal and state laws and
regulations (including the Federal Communications Commission's regulations
regarding preambles to pay-per-call programs and the Federal Trade
Commissions regulations). Before sending a Vari-A-Bill Rate Change request,
Customer must inform the Caller of the new rate or charge, and gain
confirmation or acceptance of the new rate or charge from the Caller. No
attempt will be made by AT&T to perform rate or charge disclosure or
confirmation. If the Caller is under 18 years of age, Customer is responsible
for ensuring that the Caller has permission from a parent or guardian to
complete the call.
(3) If charges for a call exceed the Maximum Allowable Flat Rate Charge, or
the Maximum Allowable Premium Charge, or the Maximum Allowable Per Minute
Charge (as specified in the Agreement), the Customer will provide a corrected
record of the charge or rate to AT&T within two business days of AT&T's
request for such information. If Customer does not provide this information
within the specified time frame, AT&T will remove the charges recorded for
the call after the Vari-A-Bill rate or charge change was received by AT&T.
Customer will continue to be responsible for all tariffed charges and Billing
Services fees for such calls.
(4) If a Caller contacts AT&T and inquires about a charge or fee, claiming
that it exceeds the amount agreed between Caller and Customer, then AT&T may
request from Customer a verifiable record of Caller's agreement to the charge
or fee. If Customer fails to provide such a verifiable record within two
business days, and if Caller continues to request an adjustment, Customer
agrees that AT&T is authorized to credit Caller for the entire amount of the
call. Customer will continue to be responsible for all tariffed charges and
Billing Services fees for such calls.
(5) Customer shall ensure that its customer premises equipment ("CPE")
terminating the ISDN PRI facility has passed AT&T's ISDN Compatibility Test
Program. Customer shall provide AT&T with the following information
concerning its CPE: manufacturer, product code, release, date of AT&T ISDN
Compatibility Test. Customer shall ensure that any subsequent retrofits,
upgrades, modifications or other changes to its CPE used in connection with
AT&T Vari-A-Bill Service has passed AT&T's ISDN Compatibility Test Program.
Customer agrees to pay AT&T for all AT&T expenses that result from caller
inquiry, trouble isolation, resolution, and other work associated with
Customer's installation and operation of CPE that has not passed AT&T's ISDN
Compatibility Test Program.
(6) Customer is responsible for assigning a designated contact to resolve
Vari-A-Bill specific billing issues. If the designated contact changes,
Customer shall provide written notification to AT&T within 24 hours (One
business day).
(7) Charges for the Vari-A-Bill feature are in addition to the other tariffed
charges and Billing Services fees incurred by Customer.
B. Call Prompter Rating ("CPR") Feature is available with AT&T MULTIQUEST
Interacter Service or Express 900 Service.
(1) CPR affords the Customer the ability to vary the set of rating options to
a Caller (without changing the 900 telephone number) based upon responses
made to Call Prompter announcements. Rate sets can be individually assigned
to a maximum of four Call Prompter "branches" identified by specific bill
designator. These rates will apply when a caller from an AT&T 1+ Recording
Takeback Area, successfully enters the valid digits for the branch, otherwise
the default value applies.
(2) Full and complete rate disclosure in both Customer's advertisements and
in the programs' preamble and compliance with the AT&T CPR Guidelines are the
responsibilities of the Customer. Such disclosures must comply with, among
others, federal and state laws and regulations (including the Federal
Communications Commission's regulations regarding preambles to 900 programs
and the Federal Trade Commissions regulations).
(3) Charges for the CPR feature are in addition to the other tariffed charges
and Billing Services fees incurred by Customer.
