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EXHIBIT 10.26
***PORTIONS OF THIS EXHIBIT MARKED BY
BRACKETS ("[______]") OR OTHERWISE
IDENTIFIED HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE OMITTED PORTIONS HAVE
BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.***
03/17/97 5:18 PM
INTERSTATE TELEPHONE COMPANY
AND
CYBERNET HOLDING, INC.
AGREEMENT FOR THE PROVISION OF
BILLING AND COLLECTION SERVICES
This agreement made and entered into on April 2 , 1997, between
INTERSTATE TELEPHONE COMPANY ("Interstate") and CYBERNET HOLDING, INC.
("Cybernet"), sets forth the terms whereby Interstate will perform certain
billing and collection services for Cybernet. This agreement shall remain in
effect for a minimum of one year or thereafter until such time as cancelled by
either party, provided that said termination is not inconsistent with the terms
of any applicable tariff.
I. BILLING AND COLLECTION SERVICE DESCRIPTION
Interstate agrees to perform the services of recording and rating
messages processed through Interstate's switch which reflect Cybernet end user
traffic, providing this information to Cybernet through means of magnetic tape
or other mutually agreed upon medium, to process these messages into billable
formats, and prepare and render end user bills to Cybernet.
Total Cybernet charges to the end user will include any federal, state,
and local taxes to be calculated by Interstate and collected by Cybernet.
Cybernet will be responsible for reporting and payment of taxes to the proper
taxing authority in a timely manner.
Interstate will refer all customer inquiries and questions related to
Cybernet end users to Cybernet Customer Service at _________________. Cybernet
intends to perform inquiry services, treatment of accounts, message
investigation, and toll investigation for messages processed by Interstate.
Cybernet will issue to Interstate via agreed upon medium, credit memorandums
for any charges determined to be credited from a customer's account.
Procedures for disconnect for nonpayment are not contained in this
agreement, but can be found in the Capacity Lease Agreement in effect between
Interstate and Cybernet.
II. COMPENSATION
Compensation for services provided for in this Agreement shall be
established at the rates mutually agreed to by Interstate and Cybernet and
contained in Attachment "I".
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III. PERFORMANCE STANDARDS
All messages will appear on the customer's xxxx within sixty (60) days
of the date the call is generated, except in the case of third party billed
calls which will be billed within forty-five (45) days of receipt of such calls
in Interstate's billing center. Interstate will reimburse Cybernet for any
customer write-offs which directly result from any messages failing to meet the
standards stated above. Interstate assumes no responsibility for circumstances
described in Section XI, Force Majeure.
IV. MINIMUM ORDER AND REQUIREMENTS
Cybernet agrees to the following minimum payments as follows:
One-time Set Up and Hardware Fee : [_________]
---------
Minimum Monthly Payment [_______]
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V. STATEMENT PREPARATION
Interstate will report Cybernet messages as billed to end users on or
before sixty (60) days of the date of Cybernet's end user xxxx including such
messages to customers.
This statement will be prepared by Interstate by the 15th of month
following xxxx cycle with Cybernet remitting payment to Interstate by the 15th
of the following month. Cybernet, (i.e., terms are net 30 from date of
xxxx),will remit payment to:
Interstate Telephone Company
Attn:
X X Xxx 000, Xxxx Xxxxx, XX 00000
VI. PROPRIETARY INFORMATION
Interstate and Cybernet expressly agree that it will not disclose any
information which is designated "confidential" or "proprietary" by the party
providing it to the other without prior written consent except as what may be
required by law. Each party will use the same care to maintain confidentiality
of information necessary for the provision of the Billing and Collection
services provided for hereunder as it uses with respect to its own proprietary
and confidential information. Each party agrees to give prompt notice to the
other party of any demands to disclose or provide proprietary information
pursuant to subpoena or other lawful process prior to disclosing or providing
the same.
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VII. DATA RETENTION
All data associated with the performance of services hereunder shall be
retained, as applicable, for the retention time required by law for maintaining
federal, state and local tax information, the time required by law or regulation
in order to substantiate or reconstruct end user invoices, or the retention time
used by Interstate for its own billing information, whichever is longest.
VIII. SEVERABILITY
In the event that one or more of the provisions contained herein shall,
for any reason, be held to be unenforceable in any respect, such
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if the unenforceable provision had not been
contained herein.
IX. RELATION OF PARTIES
The parties declare and agree that each party hereto is engaged in a
separate and distinct business which is independent from that of the other party
and that each party shall perform its obligation hereunder as an independent
contractor and not as an agent, employee, or servant of the other party.
X. GOVERNING LAW
This Agreement shall be deemed to be a contract made under the laws of
the State of Alabama.
XI. FORCE MAJEURE
Neither party shall be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its control and
without its fault or negligence, including but not limited to acts of God, acts
of civil or military authority, government regulations, insurrections, fires,
explosions, earthquakes, floods, strikes, power blackouts, unusually severe
weather conditions, inability to procure products or services of other persons
or transportation facilities. This provision will not apply where it contradicts
a specific indemnification or hold harmless provision of this Agreement.
XII. LIMITATION OF LIABILITY
Neither Cybernet nor Interstate shall be liable to the other for any
special, incidental or consequential damages of any nature or for any reason,
even if advised of the possibility of such damages, nor, except to the extent
explicitly provided for herein, for any claims against the other by a third
party.
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XIII. INDEMNIFICATION
To the extent not prohibited by law and except as otherwise provided
herein, each party shall indemnify and hold harmless the other party from and
against any loss, costs, claim, injury or liability, including reasonable
attorney's fees, brought by a person not a party hereto or an affiliate under
this Agreement which relates to or arises out of the breach of any of the
provisions of this Agreement or the negligent or intentional acts or omissions
of the indemnifying party of its employees, agents, or contractors in connection
with the actions taken under this Agreement.
XIV. WAIVERS
No waiver of any provisions of this Agreement and no consent to any
default under this Agreement shall be effective unless the same shall be in
writing and signed by or on behalf of the party against whom such waiver or
consent is claimed. No course of dealing or failure of any party to strictly
enforce any term, right or condition of this Agreement shall be construed as a
waiver of such term, right or condition.
XV. HEADINGS
The headings of sections and paragraphs in this Agreement are for
convenience only and shall not be construed to define or limit any of the terms
herein or affect the meaning or interpretation of this Agreement.
XVI. NOTICES
Communications concerning this Agreement and the operations of the
parties as described in this Agreement will be between the following
representatives of the parties:
INTERSTATE TELEPHONE COMPANY
ATTN:
X X Xxx 000, Xxxx Xxxxx, XX 00000 Telephone:
Fax:
Contact:
CYBERNET
ATTN:
X X Xxx 000, Xxxx Xxxxx, XX 00000 Telephone:
Fax:
Contact:
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed for them and on their behalf by their authorized representatives, as of
the day first written above.
WITNESS: INTERSTATE TELEPHONE COMPANY
/s/ Xxxxx Xxxxxx BY:/s/ Xxxxxx Xxxxxxxx
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Title: CFO
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WITNESS: CYBERNET
/s/ Xxxxx Xxxxx BY:/s/ Xxxxxxx X. Xxxxxx
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Title: CEO & President
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ATTACHMENT "A"
TO
INTERSTATE AND CYBERNET
AGREEMENT FOR THE PROVISION OF
BILLING AND COLLECTION SERVICES
A-1. Message Recording Services - Includes rating, recording, data
transmission, and preparing messages in a billable format
RATE: [_________________]
A-2. Message Billing Service - Preparing end user xxxx
RATE: [______________________]
A-3. Carrier Access Xxxx
RATE: [_____________________________]
BY: /s/ Xxxxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
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Interstate Telephone Company CyberNet Holding, Inc.
TITLE: CFO TITLE: CEO & President
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DATE: 4/2/97 DATE: 4/2/97
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