Agreement for Enhancement of Telecom Australia Calling Card - Executive TeleCard SA (Switzerland) and Telstra Corp. Ltd. (Australia)
AGREEMENT BETWEEN
EXECUTIVE TELECARD SA (SWITZERLAND)
AND
TELSTRA CORPORATION LIMITED (AUSTRALIA)
FOR
ENHANCEMENT OF
TELECOM AUSTRALIA CALLING CARD
EXECUTIVE TELECARD AGREEMENT
This agreement (hereinafter referred to as the "Agreement") is
made as of this third day of August, 1993 by and between Executive
TeleCard SA, (hereinafter referred to as "TeleCard"), a corporation whose
address is Rue de la Morache 14, 1260 Nyon, Switzerland, and Telstra
Corporation Limited ACN 051 775 556 (hereinafter referred to as
"Telecom"), a corporation organised under the laws of Australia with its
principal offices located at 231 Elizabeth Street, Sydney, NSW 2000,
Australia.
WITNESSETH:
WHEREAS, TeleCard provides a service which enables users of the public
telephone systems in various countries to charge their telephone calls to
a credit card while in such countries; and
WHEREAS, Telecom has a requirement for such service for use by holders of
telephone calling cards issued by Telecom and desires to obtain such
services from TeleCard.
NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein and for other good consideration and intending
to be legally bound by this Agreement, the parties agree to the following:
I. DEFINITIONS
In this Agreement, unless the context or use indicates another meaning:
"Account Number" in respect of a Telecom Card shall mean the numbers
appearing on the face of that Telecom Card.
"Commencement Date" shall mean the date of the first use (other than for
testing purposes) of a Telecom Card to obtain the Service.
"CAVIAR" shall mean the Computer-Assisted Variable International Automatic
Redialler or other system which allows TeleCard to capture usage
information and issue monthly bills in any major currency with full call
details and allows callers to place authorised direct-dial domestic and
international calls in a country in which there is a CAVIAR node, or from
which a CAVIAR node is accessible.
"Operator Assisted Service" shall mean the TeleCard USA based operator
assist help desk which can be accessed by way of toll-free access from the
countries listed in Part 3 of Appendix A and where, upon providing the
relevant Account number and PIN and called number details to the operator,
the call will be placed by that operator.
"PIN" shall mean the four (4) digit Personal Identification Number issued
to each Telecom Cardholder for use in conjunction with the Account Number.
"PVV" shall mean the Personal Verification Value [ ] which represents a
numeric value [ ].
[ ] which, when applied to the Cardholder's Account Number and PIN, will
result in a value which, if the Account Number and PIN are valid, will
[ ].
"Restricted Card List" or "RCL" shall mean the list, to be updated daily,
supplied by Telecom to TeleCard which contains the Account Number of
Telecom Cards which are being improperly used and lost, stolen and/or
cancelled Telecom Cards which are then to be blocked from use.
"Service" shall mean the service provided by TeleCard which enables the
users of public telephone systems in those countries other than Australia
in which a CAVIAR system node is located or from which a CAVIAR system
node is accessible (being currently the countries listed in Appendix A) to
make domestic and international telephone calls using a telephone calling
card which is recognised by CAVIAR.
"Service Charge" shall mean an annual charge applied to each Telecom
Cardholder that actually uses the Service which will be due for the
initial annual period upon the first use of the Service. Use in
subsequent annual periods will result in the annual charge applying from
the anniversary date of the first use of the Service.
"Telecom Card(s)" shall mean Telecom Telecard-TM-, activated Telecom
Network Plus cards and other telephone calling cards issued by Telecom as
are agreed between the parties from time to time.
"Telecom Cardholder(s)" or "Cardholder(s)" shall mean the holder(s) of a
Telecom Card.
2. THE SERVICE
2.1 Expansion of the Service.
TeleCard shall use its best efforts to expand the Service to
countries additional to those listed in Part 1 of Appendix A, to
include those countries listed in Part 2 of Appendix A.
2.2 Provision of Service to Telecom Cardholders
TeleCard shall make the Service available for use by each
Telecom Cardholder where the Telecom Card has been activated in
the TeleCard CAVIAR databases and is, in respect of each call
made by the Telecom Cardholder, validated in accordance with the
procedures outlined in Section 2.2.B.
TeleCard agrees that the Service to be provided to Telecom
Cardholders shall be such that all calls made shall be redialled
through the principal administration or recognised private
operating agency (being an administration or recognised private
operating agency within the meaning ascribed to those terms in
the International Telecommunication Convention) in the country
of calling (hereinafter referred to as the "PTT") so as to make
accessible to the Telecom Cardholder caller the international
telephone network facilities of the PTT.
For the purposes of TeleCard providing the Service to Telecom
Cardholders:
A. Order Entry.
Not later than 30 days after the execution of this Agreement,
TeleCard shall update its CAVIAR databases with Telecom Card
Account Numbers, associated PVV's and [ ].
TeleCard will use these stored values to undertake and perform
several authenticity checks required for validation. Telecard
agrees to adapt its software to accept the Telecom Card
numbering system and technical specifications, and to undertake
a testing program as agreed between the parties that provides a
level of assurance acceptable to each party that the processes
are functioning satisfactorily. The storage of the Telecom PVV
algorithm in the TeleCard databases will occur at no cost to
Telecom. TeleCard undertakes that all Telecom Cardholder
information (including the [ ]) will be handled with full
security measures, will be used solely and strictly for the
purpose of providing the Service to Telecom Cardholders in
accordance with this Agreement and otherwise will be treated as
Confidential Information in accordance with Section 13.
B. Card Validation
TeleCard shall undertake the following validation checks prior
to the placement of a call:
(a) Analyse the Telecom Card Account Number to determine if the
card presented is eligible to use the Service. [ ]
(b) As from 1 January 1994 or later agreed date, carry out [ ]
to assure that the Telecom Card number is valid.
(c) Check that the Telecom Card Account Number is not listed in
the Telecom RCL.
(d) Apply the [ ] to the Telecom Card Account Number and PIN
[ ] that can be compared with the stored PVV.
C. Call Completion and Floor Limits
TeleCard shall provide to Telecom and keep current a detailed
listing of the designated local phone numbers for TeleCard in
each country of operation of the Service and Telecom shall
provide these numbers to Telecom Cardholders. Each such local
phone number shall connect a Telecom Cardholder wishing to use
the Service to a CAVIAR node or an operator, whereupon the
caller shall be requested to provide the caller's Account Number
and PIN and the telephone number to be called. TeleCard shall
validate the transaction in accordance with the procedures in
Section 2.2.B. TeleCard shall implement a facility that will
impose periodic cumulative expenditure limits as agreed with
Telecom.
D. RCL
Telecom shall provide weekly, in a medium to be agreed, a
composite RCL file to TeleCard which TeleCard shall use to
update its database. TeleCard shall update all of its Service
databases with information from the most current weekly RCL or
daily update no later than [ ] after receipt.
E. Future Development
As a priority, TeleCard and Telecom shall work jointly toward
the development of [ ]. It is expected that TeleCard will
implement [ ]. A requirement for development of [ ] is also
foreseen.
3. BILLING AND SETTLEMENT
3.1 Billing
TeleCard will transmit call records and charges to Telecom in a
manner and format to be agreed thereby providing billing details
for all calls made using Telecom Cards to Telecom. These
individual billing records will be submitted to Telecom on, at a
minimum, a weekly basis for settlement. Each record will
include:
- Telecom Card Account Number
- date and time of the call
- telephone number called
- originating country including (where possible) geographic
location
- duration of call in minutes and seconds
- TeleCard rating of the call in the currency of call origin
- Service Charges due under Section 11.2
Telecom reserves the right to re-tariff or surcharge calls when
billing Telecom Cardholders and to represent billing details
according to its corporate policy on such issues.
3.2. Settlement
TeleCard will bill Telecom on a monthly basis charges for calls
made by Telecom Cardholders in the preceding month based on
TeleCard's published tariffs and Service Charges due (see
Section 11.2) in the currency of Australia ("Australian
Dollars"). Where TeleCard must convert from another currency to
Australian Dollars it shall use the conversion rates published
by Dow Jones [ ].
Telecom shall pay TeleCard in Australian Dollars all charges
recorded by TeleCard less the Administration Fee (see Section
11.1) and any Refunds and Credits and Chargebacks due under 3.3
and 3.4 below, within 30 days of receipt of the statement from
TeleCard.
3.3. Refunds and Credits.
Telecom shall be entitled to refuse payment to TeleCard and/or
receive an immediate refund from TeleCard if payment has been
made for calls placed by Telecom Cardholders using the Service
under the following circumstances:
(i) the call was made with a Telecom Card appearing on the RCL
received by TeleCard in time to be posted to the Service
databases in accordance with Section 2.2.D.
(ii) the call transaction is under [ ] and the Telecom
Cardholder has refused to make payment to Telecom with
respect to the call on the grounds that the call was of
poor transmission quality or a misdialled call;
(iii) the Telecom Cardholder asserts the call transaction is
unauthorised or fraudulent and refuses to make payment
to Telecom.
In the event that the call transaction appears to be fraudulent,
TeleCard shall investigate the charges through various
established methods. This process may include contacting the
Telecom Cardholder and possibly blocking the Telecom Card from
the Service until the investigation is completed.
TeleCard agrees that [ ] any and all calls alleged to be
fraudulent or unauthorised by Telecom Cardholders shall be
deemed to be fraudulent or unauthorised calls for purposes of
this Agreement. Telecom agrees to cooperate fully with TeleCard
in the investigation of suspected fraudulent activities
associated with the use of any Telecom Card on the Service.
3.4. Chargebacks.
Chargebacks shall be accepted by TeleCard as set forth in
Appendix B. TeleCard agrees to be responsible for all charges
that are properly charged back by Telecom as set forth in
Appendix B.
4. SECURITY AND FRAUD DETECTION SERVICES
4.1. In addition to the Card validation procedures outlined in
Section 2.2.B, TeleCard shall provide the following levels of
security and fraud control:
(1) Daily transmission to Telecom of usage of Telecom Cards
[ ].
(2) [ ].
(3) [ ].
4.2. TeleCard shall poll all Service Caviar databases on a daily
basis and utilise proprietary fraud control software to analyse
every call recorded in those databases. TeleCard shall produce
a daily report to Telecom based on such analysis which lists in
respect of Telecom Cards:
(1) all telephone calls of more than [ ];
(2) Account Numbers to which are charged [ ];
(3) Account Numbers to which [ ];
(4) Account Numbers to which are charged telephone calls made
[ ];
(5) any attempted use of an Account Number which does not
appear in the Service database (where applicable); and
(6) [ ].
Each of the activities described in items (1) through (6) may
indicated "abnormal usage".
4.3. If any patterns of abnormal usage are detected (which can be
reasonably suspected to indicate fraudulent usage), TeleCard
shall immediately block the relevant Account Number(s), promptly
notify Telecom via telephone or facsimile that such action has
been taken, and await recommendations from Telecom. Situations
which will result in the blocking of a Telecom Card shall be
agreed from time to time by the parties in writing.
5. CUSTOMER SERVICE
TeleCard warrants and represents that it will develop and implement
mutually acceptable customer service performance standards and facilities
in support of Telecom Card users of the Service and that:
(i) the language for customer prompting used by the Service shall be
English;
(ii) TeleCard will provide local toll-free numbers for English-
speaking Operator Assisted Service; and
(iii) TeleCard will provide customer service facilities in Denver,
Colorado for Telecom Cardholders whilst they are outside
Australia.
6. REPORTS
TeleCard agrees to provide and generate such reports, documentation and
tracking information as may be reasonably requested by Telecom regarding
utilisation and performance of the Service.
7. AUDIT and RECORD RETENTION
7.1 Telecom shall have the right to audit, during business hours and
upon reasonable notice and at Telecom's expense, TeleCard
records relating to card validation and screening and call
placement under this Agreement to determine TeleCard compliance
with this Agreement.
7.2 TeleCard shall retain detailed call information records for
Cardholders using the Service for a period of not less than one
year or any such longer time as may be required by law.
TeleCard shall provide Telecom with a copy of any such records
within [ ] of receipt of a written request.
8. MARKETING ACTIVITIES
The parties shall carry out activities relating to marketing the Service
to Telecom Cardholders as follows:
A. Telecom Cardholder Promotional and User Material. TeleCard
shall provide to Telecom instructional material delineating
pricing, procedures for use of the Service and such agreed
promotional and user material in a medium which will assist
Telecom to promote and assist the use of the Service by Telecom
Cardholders. When requested, TeleCard shall provide, free-of-
charge, technical and marketing assistance in the production of
Cardholder information for use of the Service.
B. Advertising. At Telecom's expense, Telecom shall advertise, use
direct mail and engage in such sales promotions and other
related marketing activities as Telecom deems, in its absolute
discretion, suitable to promote the use of the Service to
Telecom Cardholders.
C. Tone Dialers. TeleCard shall make Tone Dialers available to
Telecom Cardholders at a cost of not more than [ ] each.
D. Customisation. TeleCard shall adopt and implement emerging
world standards for customer interfaces and other operational
aspects of the Service, including validation standards as they
emerge so long as the implementation of any such standard would
not result in the lowering of any standard (including validation
checks and procedures) agreed.
9. SERVICE PERFORMANCE LEVELS
9.1 Availability
TeleCard shall make all reasonable efforts to ensure that the
accessibility to and availability of its CAVIAR nodes is
maintained at a level being equivalent to similar carrier
service offerings.
9.2 Service Quality
TeleCard shall make all reasonable efforts to ensure that users
of the Service consistently experience high end to end call
quality.
10. TRADEMARKS, SERVICE MARKS AND LOGOS.
TeleCard agrees that it has no right, title or interest in any of
Telecom's trade or service marks, logos or names ("Telecom Marks") and
agrees that it shall not use Telecom Marks without the prior written
consent of Telecom, which consent may be withheld at Telecom's discretion.
TeleCard hereby authorise Telecom, for the term of the Agreement, to
publish the name of TeleCard and the locations of the Service in any
directory of merchants or other publication of Telecom. Telecom agrees
that the TeleCard trade or service marks and logos ("TeleCard Marks")
belong to TeleCard and Telecom agrees to use its best efforts during and
after the term of the Agreement to protect TeleCard's interest in TeleCard
Marks insofar as any prejudice to TeleCard's interest therein may arise by
reason of any act or omission of Telecom under or in connection with this
Agreement.
11. COMPENSATION
11.1 Administration Fee
For the marketing and administrative services provided by
Telecom (including billing to and collection from Telecom
Cardholders), TeleCard shall pay Telecom a fee ("the
Administration Fee") equal to [ ] of the charges payable to
TeleCard by Telecom for use of the Service by Telecom
Cardholders. Telecom shall be entitled to deduct the
Administration Fee from each payment made by Telecom to TeleCard
under Section 3.2. The Administration Fee shall be calculated
on the basis of records submitted to Telecom under Section 3.1
less any chargebacks as set out in Section 3.4 and without any
adjustment for Credits or Refunds (Section 3.3).
TeleCard and Telecom shall review the Administration Fee
annually commencing on the first anniversary of the Commencement
Date. The current Administration Fee shall continue to apply
during the review period. If the Administration Fee is varied
as a result of the review, the new Administration Fee shall be
effective from the relevant anniversary of the Commencement Date
and adjustment payments will be made between the parties as
appropriate and necessary to give effect to the new
Administration Fee from that date.
11.2 Service Charge
A Service Charge of [ ] will be billed to Telecom for each
Telecom Card accessing the Service. TeleCard shall include this
fee as it is incurred as set out in Section 3.1 of this
Agreement.
11.3 Pricing
TeleCard shall keep Telecom advised of TeleCard's current
tariffs for the Service in each country where the Service is
offered and shall notify Telecom in writing of any changes to
such tariffs within one (1) month of the change.
During the first twelve (12) months after the Commencement Date,
any increase in a TeleCard tariff shall not exceed [ ] of the
tariff that applied at the Commencement Date except for any
increase that is a direct result of increases in charges to
TeleCard by the carrier in the country for which the increased
tariff is to apply ("an Exempt Increase").
If in any 12 month period (the first such period commencing on
the Commencement Date and thereafter on each anniversary of the
Commencement Date) the TeleCard tariffs applying for any country
where the Service is offered is increased by more than [ ] other
than by reason of Exempt Increases, Telecom may terminate this
Agreement by giving not less than three (3) months' prior
written notice to TeleCard.
12. INDEPENDENT CONTRACTORS
The parties hereto are independent contractors with respect to each other
and nothing contained herein shall be construed to create a joint venture,
partnership, principal and agent or other relationship between the parties
except that of independent contractors. TeleCard shall not act or attempt
to act or represent itself directly or by implication as agent for
Telecom, or in any manner assume or create or attempt to assume or create
any obligation on behalf or in the name of Telecom.
13. CONFIDENTIALITY
13.1 During the term of this Agreement the parties shall regard and
preserve as proprietary all information related to the business
and customers/Cardholders of the other party ("the releasing
party") it receives or learns as a result of this Agreement
("Confidential Information"). The parties agree not to disclose
any such Confidential Information without first obtaining the
other party's prior written consent.
13.2 The parties agree to use the Confidential Information only for
the purposes of fulfilling obligations under this Agreement.
Except as provided in Section 10, no other rights or licenses to
trade or service marks, inventions, copyrights, patents, or
other intellectual property rights are implied or granted under
this Agreement. Each party shall use reasonable care to avoid
unauthorised disclosure or use of the other party's Confidential
Information and not less than the same degree of care as it uses
to protect its own confidential information of similar
sensitivity. It is agreed that access to all Confidential
Information shall be limited to only such employees or agents
who need to know such information for the purpose of fulfilling
obligations under this Agreement and that each party shall be
liable for any unauthorised disclosure or use of the other
party's Confidential Information by any of its employees or
agents to whom such Confidential Information is disclosed.
13.3 All Confidential Information shall remain the property of the
releasing party and such Confidential Information, including all
copies thereof, shall be returned to the releasing party or
destroyed after the need for it has expired, upon request and,
in any event, promptly upon termination of this Agreement.
13.4 No party shall have any obligation with respect to Confidential
Information to the extent, but only to the extent, that it:
i) is already in the possession of the party free from any
obligation to keep such information confidential;
ii) is or becomes publicly known through no wrongful act of the
party;
iii) is rightfully received from a third party who has the right
to deliver it without restriction and without breach of
this Agreement;
iv) is independently developed by the party without use of any
Confidential Information of the releasing party; or
v) must be disclosed pursuant to a court order or is required
by any governmental or administrative authority having
jurisdiction over the party and the party gives the
releasing party prompt notice of the disclosure.
13.5 Without the prior written consent of the releasing party, the
other party shall not directly solicit customers of the
releasing party by utilising any Confidential Information of the
releasing party. A Telecom Cardholder enrolled to use the
Service under this Agreement shall be the customer of Telecom,
and TeleCard shall have no proprietary rights with respect to
such Cardholder.
13.6 Notwithstanding any other provision of this Section 13, except
subsection 13.7, Telecom shall be entitled to disclose to its
shareholder, the Commonwealth of Australia, or its nominee any
Confidential Information of TeleCard contained in any books,
documents or other papers of Telecom other than Confidential
Information comprising confidential details of products,
technical processes and know how including computer programs
directly related to those products, technical processes or know
how.
13.7 If Telecom is required to disclose Confidential Information of
TeleCard to the Commonwealth of Australia or its nominee,
Telecom shall:
i) promptly notify TeleCard of the disclosure requirement;
ii) mark all such information required to be disclosed as
"Commercial-in-Confidence"; and
iii) advise the Commonwealth of the confidentiality of the
information and request that the Commonwealth agree that it
be treated as confidential information.
13.8 In sub section 13.6 the words "books, documents or other papers"
include:
i) any book, map, plan, graph or drawing;
ii) any photograph;
iii) any label, marking or other writing which identifies or
describes anything of which it forms a part, or to which it
is attached by any means whatsoever;
iv) any disc, tape, sound track or other device in which sounds
or other data (not being visual images) are embodied so as
to be capable (with or without the aid of some other
equipment) of being reproduced therefrom;
v) any film (including a microfilm) negative, tape or other
device in which one or more visual images are embodied so
as to be capable (with or without the aid of some other
equipment) of being reproduced therefrom; and
vi) anything whatsoever on which is marked any words, figures,
letters or symbols which are capable of carrying a definite
meaning to persons conversant with them.
14. TERM AND TERMINATION
14.1 Unless terminated earlier in accordance with sub section 14.2 or
sub section 14.3, either party may terminate this Agreement
without cause at any time after [ ], by giving not less than
[ ] prior written notice to the other party.
14.2 Either party may terminate this Agreement by written notice to
the other party if:
i) the other party commits any material breach of this
Agreement which is not capable of being remedied;
ii) the other party commits a breach of this Agreement which is
capable of being remedied and fails to remedy the breach
within 30 days of receipt of written notice of default or
within such longer period as may be specified in the notice
of default;
iii) the other party ceases, or proposes to cease to carry on
business or to pay its debts as and when they fall due;
iv) except for the purposes of a solvent reconstruction or
amalgamation, an application is made, proceedings are
commended, or a resolution is passed or proposed in a
notice of meeting for the winding up, dissolution, official
management or administration of the other party or the
other party enters into any arrangement, compromise or
composition with, or any assignment for the benefit of, its
creditors or any class of them;
v) a receiver, receiver and manager, official manager or
provisional liquidator is appointed with respect to the
other party or any of its assets; or
vi) the other party, being a corporation incorporated outside
Australia, becomes insolvent or suffers any event similar
to any event referred to in paragraphs (iv) and (v).
14.3 Telecom may terminate this Agreement at any time in accordance
with sub section 11.3.
14.4 Upon notice of termination of this Agreement, an orderly phase-
out schedule shall be agreed between Telecom and TeleCard.
Administrative Fees shall continue to be paid as set forth in
Section 11 in respect of use of the Service by Telecom
Cardholders before termination, as long as billing and
collection are performed by Telecom.
14.5 Termination of this Agreement for any reason shall not release
either party from any accrued liability to the other party. A
party's right to terminate this Agreement as provided herein
shall be without prejudice to any other rights provided to it
under law or equity.
15. [ ]
Telecom reserves the right to enter into agreements with other parties for
their acceptance of the Telecom Card for [ ].
16. ASSIGNMENT
Neither party shall assign or transfer all or any part of its rights under
this Agreement. Any such assignment or transfer without the prior written
approval of the other party shall be null and void and of no effect.
17. WARRANTIES
Telecom shall not make any warranty regarding the Service to Telecom
Cardholders beyond those made by TeleCard.
18. INDEMNIFICATION
18.1 Indemnity by TeleCard. TeleCard shall indemnify and hold
harmless Telecom and its respective affiliate corporations, and
the officers, directors, employees and agents of each such
corporation, from and against any and all liabilities, losses,
claims, suits, complaints, proceedings, damages, costs, and
expenses whatsoever, including reasonable outside attorneys'
fees, resulting from any claim, complaint, action, proceeding,
counterclaim or offset arising directly or indirectly out of
TeleCard's performance under this Agreement or TeleCard's
failure to perform in accordance with any of the terms and
conditions of this Agreement.
18.2 Indemnity by Telecom. Telecom shall indemnify and hold harmless
TeleCard, its affiliate corporations, and the officers,
directors, employees and agents of each such corporation, from
and against any and all liabilities, losses, claims, suits,
complaints, proceedings, damages, costs, and expenses
whatsoever, including reasonable outside attorneys' fees,
resulting from any claim, complaint, action, proceeding,
counterclaim or offset arising out of or resulting from the
gross negligence or wilful misconduct of Telecom.
19. GOVERNING LAW AND CONSENT TO JURISDICTION
This Agreement shall be governed by and construed in accordance with the
substantive laws of the State of New South Wales, Australia, in all
respects, including matters of construction, enforcement and performance,
without giving effect to the principles of choice of laws thereof. Each
party hereby irrevocably submits to the non-exclusive jurisdiction of the
courts of or having jurisdiction in the State of New South Wales in any
action or proceeding arising out of or relating to this Agreement, and
each party hereby irrevocably agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such court.
20. NOTICES
All notices, reports and other communications pursuant to or in connection
with this Agreement shall be given by certified mail, facsimile, or
courier service. Notices shall be deemed received from the date the
telecopy, or the certified mail or courier message, is delivered to the
applicable location described below:
To Telstra: Mailing Address:Telecom Australia
Card Products Group
11/624 Bourke Street
Melbourne, Victoria, 3000
Australia
Attention: Mr Rick Arden
Facsimile Number+61 3 634 2510
To TeleCard Mailing Address:Executive TeleCard SA
Rue de la Morache 14
1260 Nyon, Switzerland
Attention:
Facsimile Number+41 22 61 0227
21. COMPLIANCE WITH LAWS
TeleCard agrees to comply with any and all laws and regulations regulating
its activities and services, including the Service. TeleCard agrees to
pass on and provide to Telecom any benefits, discounts or refunds related
to the Service that it receives as a result of revisions to Federal
Communications Commission or other applicable rules and regulations.
22. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability
of any other provision hereof, provided that such invalidity does not
materially prejudice either party in their respective rights and
obligations contained in the valid terms, covenants or conditions.
23. WAIVER
The failure of either party to require the performance of any of the terms
and conditions of this Agreement or the waiver by either party of any
default under this Agreement shall not prevent a subsequent enforcement of
such term or condition, nor be deemed a waiver of any subsequent breach.
24. ENTIRE AGREEMENT
This Agreement comprises the entire understanding between the parties and
supersedes all prior agreements and understandings related to its subject
matter. This Agreement may not be amended, changed, modified, waived,
discharged or terminated except by a writing signed by both parties.
25. HEADINGS
The headings in this Agreement are for convenience and reference only and
shall not limit or affect any of the terms and conditions herein.
26. GENERAL
The use of any gender shall include all genders, and the use of any number
shall be construed as the singular or the plural, as the context may
require.
27. SURVIVAL
The rights and obligations set forth in Sections 10 (Trademarks), 13
(Confidentiality), 14 (Term and Termination), 18 (Indemnification) and 19
(Governing Law) of this Agreement shall survive and continue after any
expiration or termination of this Agreement and shall bind the parties and
their legal representatives, successors, heirs and assigns, for acts
connected with performance or conduct during the course of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorised representatives as of the day and year first set
forth below.
TELSTRA CORPORATION LIMITED.
By Phillip Hastings
Signed /s/ Phillip Hastings
Title General Manager, International Network Products
Date 3 August 1993
EXECUTIVE TELECARD SA
By Daryl Engelman
Signed /s/ D Engelman
Title Vice President of Operations and Chief Operating Officer
Date July 23, 1993
<PAGE>
APPENDIX A (Part 1)
EXECUTIVE TELECARD SERVICE LOCATIONS
As at 1 July 1993
Direct Dialled Operator Assisted
Andorra Abi Dhabi Northern Island
Austria Andorra Norway
Bahrain Austria Oman
Belgium Bahamas Peru
Canada Bahrain Philippines
Denmark Belgium Portugal
Finland Brazil Qatar
France Canada San Marino
Germany Canary Islands Singapore
Gibraltar Chile South Korea
Hong Kong Columbia Spain
Iceland Costa Rico Sweden
Republic of Ireland Cyprus Switzerland
Italy (Incl Vatican City Denmark Taiwan
and San Marino) Dominican Republic Turkey
Japan Dubai Uraguay
Liechtenstein Finland US Virgin Islands
Luxembourg France Venezuela
Malaysia Germany
Monaco Gibraltar
Netherlands Greece
Norway Hong Kong
New Zealand Hungary
Oman India
Philippines Ireland
Singapore Israel
Spain (incl Canary Is. and Italy (incl. Vatican City)
Majorca) Jamaica
Sweden Japan
Switzerland Kuwait
Taiwan Liechtenstein
Thailand Luxembourg
United Kingdom (incl. Madeira
Guernsey, Ilse of Man, Jersey Majorca
and Northern Ireland) Malaysia
United States of America Mexico
Monaco
Netherlands
New Zealand
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APPENDIX A (Part 2)
EXECUTIVE TELECARD PLANNED SERVICE LOCATIONS
As at 1 July 1993
Direct Dial Operator Assist
[ ] Argentina
[ ] Chile
Chile [ ]
[ ] [ ]
[ ] [ ]
[ ] Columbia
[ ] [ ]
[ ] Venezuela
[ ] [ ]
South Africa [ ]
[ ]
[ ]
[ ]
[ ]
[ ]
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APPENDIX B
EXECUTIVE TELECARD AGREEMENT CHARGEBACK REASONS
The following details the applicable set of chargeback reasons for the
Service:
WARNING BULLETIN - 45 DAYS
This chargeback is to be used if the transaction received contains an
Account Number which had been notified by Telecom on any RCL listing and
transmitted to TeleCard more than 6 hours before the usage of the
particular Telecom Card is attempted.
Telecom may effect a chargeback with respect of such transaction within 45
days of the transaction date. For purposes of this chargeback, the
transaction date will be considered the date that the call is placed. If
the record has no transaction date, Telecom may exercise this chargeback
if the Account Number appeared on any RCL notification on any date within
15 (fifteen) calendar days prior to the central processing date.
CARD SHOULD BE ON SUSPENDED/CANCELLED LIST
This chargeback reason may be used when a call is switched and billed
during a period the Telecom Card used should have been on TeleCard's lists
of suspended and/or cancelled cards, i.e. activity on the card met the
criteria which had been agreed between TeleCard and Telecom (see
Section 3.3(iii)) for deciding if and when a card should be so suspended
or cancelled.
CARD NOT CORRECTLY VALIDATED.
(Not applicable until "on-us" validation is introduced)
This chargeback reason may be used when a call is connected and billed by
TeleCard but a positive validation was not received by TeleCard from
Telecom prior to the placement of the call.
DUPLICATE PROCESSING - 120 DAYS
This chargeback applies when a single transaction is presented two or more
times to Telecom for the same Cardholder Account Number.
Telecom may effect a chargeback with respect of such transaction within
120 days of the transaction date. For purposes of this chargeback, the
transaction date will be considered the date that the call is placed.
LATE PRESENTATION - 180 DAYS
The transaction date is more than 30 days prior to the central processing
date. This chargeback will apply if TeleCard fails to transmit a
transaction to Telecom within 180 days of that transaction.
Telecom may affect a chargeback with respect of such transaction within
180 days of the transaction date. For purposes of this chargeback, the
transaction date will be considered the date that the call is placed.