CALLING PLATFORM AND NETWORK AGENCY AGREEMENT
Exhibit 10.9
THIS AGREEMENT is entered into this 15th day of Oct., 1997 (("Effective Date")
by and between TELTRUST COMMUNICATIONS SERVICES, INC. ("TELTRUST"), a Utah
corporation with its principal place of business at 000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 and BELLSOUTH LONG DISTANCE, INC. ("BSLD"), a
Delaware corporation with its principal place of business at 00 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxxx XX 00000 (hereinafter collectively referred to as the "Parties").
RECITALS:
WHEREAS, TELTRUST offers carrier services including live operator services,
automated platform services, directory assistance services, network and related
telecommunications services; and
WHEREAS, BSLD has a Proprietary Access Platform through which End User
Customers can obtain access to carrier services and have these services billed
through various methods, including BellSouth's Global Calling Card; and
WHEREAS, BSLD has entered into a billing and collection agreement which
allows BSLD to provide billing services for certain calls placed via
proprietary-access means, and TELTRUST desires to obtain such billing services
from BSLD on the terms and conditions contained herein; and
WHEREAS, based on the specific mutual obligations and commitments as set
forth below, the Parties desire to enter into a business relationship in which
TELTRUST provides operator, network and related telecommunications services to
End User Customers accessing BSLD's Proprietary Access Platform, and BSLD
performs limited billing services on behalf of TELTRUST;
NOW, THEREFORE, in consideration of mutual covenants herein and other good
and valuable consideration, receipt of which is hereby acknowledged, the Parties
hereto agree as follows:
SECTION I. CONTRACT DEFINITIONS
1.1 Affiliate: A company or entity in which BellSouth Corporation holds an
equity or equivalent financial interest, e.g. BellSouth Cellular,
BellSouth Telecommunications, etc.
1.2 AIN: Advanced Intelligent Network. Database maintained to store and
receive queries on BSLD's proprietary calling cards.
1.3 ANI: Automatic Number Identification, e.g., a telephone number.
1.4 Automated Call Processing: Services provided through TELTRUST's
automated switching platform.
1.5 Automated Collect Call: A collect call that is placed through a
switching platform that performs the same functions as a live operator,
i.e. obtaining the caller's name, acceptance of charges by the xxxx to
party, etc., through a computerized mechanism.
1.6 BellSouth Region: The nine state area currently served by BellSouth
Telecommunications, consisting of Alabama, Florida, Georgia, Kentucky,
Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee.
1.7 BSLD Proprietary Access Platform (PAP): The software and other
intellectual property that reside on TELTRUST's calling platform which
provides End Users access to services available on the calling platform.
The PAP provides menus and prompts that allow End Users to select the
services he or she wishes to use. All calls by End Users, utilizing the
800/888 access number contemplated by this Agreement, must access the PAP
prior to receiving any calling platform services or being transported for
termination.
1.8 BST: BellSouth Telecommunications, Inc. An Affiliate of BSLD, and a
billing and collection provider of BSLD.
1.9 BTN: Billing Telephone Number. The number associated with a specific
account which carries all pertinent billing information to which a
completed operator or network platform services call will be billed.
1.10 Bong Tone: The tone heard by an End User Customer after having reached
TELTRUST automated platforms.
1.11 Branding: Depending on the context, the association of the BellSouth name
to an End User Customer with a BellSouth service, or a TELTRUST name to
an End User Customer with a TELTRUST service.
1.12 Call Attempt: An attempt made by an End User to place any call type
contemplated in this Agreement. A call attempt may result in either a
Completed Call or an Incomplete Call.
1.13 Change Request: Request from either Party to revise the processing of
services, or add new services to the terms and conditions of this
Agreement, in accordance with defined, written requirements.
1.14 Clearing House: The provider of xxxx clearing services whereby Call
Records are submitted to the LEC for billing and collections via the LEC
billing system.
1.15 Call Rating: Process whereby TELTRUST rates calls using its software and
in accordance with TELTRUST tariffs, as selected by BSLD.
1.16 Calling Card: A non-proprietary card issued to End User Customers,
generally by Local Exchange Carriers, that can be used to xxxx completed
calls. Calling card databases are maintained via LIDB in order that
calling card numbers can be validated prior to placing and billing a
call.
1.17 CDR: Call Detail Record. Record relating to individual telephone calls
originated by End User Customers via the BSLD Proprietary Access
Platform.
1.18 Completed Call: A call attempt that reaches the TELTRUST platform or a
TELTRUST live operator via BSLD's Proprietary Access Platform, that
results in successful connection between the calling and called party.
1.19 Credit Card: A card issued to End User Customers by banking or other
institutions, e.g. MasterCard, VISA, American Express, that is used to
xxxx completed calls.
1.20 Directory Assistance: Service accessed via BSLD's Proprietary Access
Platform whereby a TELTRUST directory assistance operator attempts to
locate a telephone number listing or an address listing, or both, for a
BSLD or Affiliate End User Customer.
2
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
1.21 Directory Assistance - Call Completion: Automated system accessed via
BSLD's Proprietary Access Platform providing an End User Customer of
Directory Assistance the ability to complete a call to the number for
which the End User Customer sought a telephone number listing or an
address listing, or both, without having to hang up and initiate a new
call.
1.22 EMI: Exchange Message Interface. The industry standard record layout
for the exchange of messages between telecommunication providers. The
EMI standards are maintained and provided by Bellcore in its
Documentation SR-320.
1.23 End User Customer: A consumer, who may or may not be a BSLD or
Affiliate proprietary card holder, who places, or attempts to place,
any type of telephone call as described in this Agreement. Also
referred to as "End User".
1.24 Full Market Entry Date: The first day of the month following the date
upon which BSLD obtains all necessary legal authority, including any
authority required under 47 U.S.C. Section 271(d) to provide non-
incidental originating interLATA telecommunications service in all
states in the BellSouth Region.
1.25 Fully Automated Calling Card Call: A call placed by dialing the
proprietary access number to BSLD's Proprietary Access Platform,
followed by entering a destination number, hearing a bong tone, and
finally the proprietary or calling card number. May also be placed by
dialing a 0 in designated locations, followed by the destination number
and, upon hearing a bong tone, entering the proprietary or calling card
or credit card number. In either event, no operator intervention is
required.
1.26 General Assistance: An automated service offering from BSLD's
Proprietary Access Platform that enables End User Customers to obtain
calling card information or other like information from BellSouth,
without requiring a call to be billed by TELTRUST.
1.27 Gross Xxxxxxxx Accepted: Shall be defined as gross revenue transmitted
to BST by BSLD for billing less any LEC rejects by BST. Also, defined
as Total Revenue accepted on the BST Confirmation Report #4310.
1.28 Incomplete Call: A call attempt that reaches the TELTRUST platform or a
TELTRUST live operator via BSLD's Proprietary Access Platform that does
not result in a connection between the calling and called party.
1.29 International Call: A call attempt to a destination other than the
United States and its outlying territories. May include calls placed by
dialing 011 or 01 plus the applicable country and city code, or calls
placed to other countries utilizing the North American Numbering Plan.
1.30 IXC: Inter-Exchange Carrier. A provider of long distance telephone
services to End User Customers.
1.31 LEC: Local Exchange Carrier. A provider of local telephone services to
End User Customers.
1.32 LIDB: Line Information Database. Database utilized for validation of
billing methods; maintained by Local Exchange Carriers and containing
BTNs that accept billing of 0+ or 0- calls, or both.
1.33 Live Operator Services: All services which require the intervention and
assistance of a live operator.
3
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
1.34 Market Entry Date: The first day of the month following the date upon
which BSLD obtains all necessary legal authority, including any authority
required under 47 U.S.C. Section 271(d) to provide non-incidental
originating interLATA telecommunications service in a given BellSouth
Region state.
1.35 North American Numbering Plan: The series of 10 digits dialed to reach a
destination in North America.
1.36 Operator Assisted Calling Card Call: A call billed to a proprietary or
LEC calling card with the assistance of a live operator.
1.37 Operator Assisted Credit Card Call: A call billed to a credit card with
the assistance of a live operator.
1.38 Operator Assisted Collect Call: A call billed to the called to party with
the assistance of a live operator.
1.39 Operator Assisted Third-Party Billed Call: A call billed to a third-party
with the assistance of a live operator.
1.40 Operator Assisted General Assistance Call: A call placed to a live
operator by an End User Customer requesting rate information, refund and
repair information, time of day information, and other like information
and which does not result in a call being placed by TELTRUST's operator.
1.41 PBA: Post Billing Adjustment. Credits issued to end user customer
accounts for charges that have been billed to these accounts, which in
turn modifies (adjusts) the total settlement balance due TELTRUST from
BSLD.
1.42 Person-to-Person Call: An operator-assisted call in which the caller
requests to speak with a particular person. Charges on a Person-to-Person
Call may be billed to the called party, via the proprietary card, or via
an alternative billing method, i.e. credit card, calling card, third-
party.
1.43 Proprietary Calling Card: A card issued by BSLD or its Affiliate for use
by its End User Customers.
1.44 PARS: Purchase of Accounts Receivable. Statement sent to TELTRUST by BSLD
detailing the amount due TELTRUST for the Purchase of Accounts Receivable
("PAR"). Includes TELTRUST transmitted revenue and associated Taxes
received, and recourse or settlement amounts such as unbillables, post-
billing adjustments and uncollectible-realized amounts, and Settlement
Allowance recoursed to TELTRUST for the given settlement period.
1.45 Station-to-Station Call: Any operator assisted call in which the calling
party does not specify a party with whom he or she must be connected
(e.g. person-to-person), and for which billing will occur once answer
supervision is received as a result of the called number answering.
1.46 Taxes: All taxes including, but not limited to, federal, state or local
sales, use, excise, gross receipts or other receipts, or other taxes or
tax-like fees (including tariff surcharges) imposed on or with respect to
TELTRUST's services, excluding however, ad valorem property taxes, state
and local privilege and license taxes based on gross revenue, taxes
measured by net income, and any taxes or amounts in lieu of the foregoing
excluded items.
1.47 Teltrust Commission Statement: Shall be defined as TELTRUST's monthly
commission settlement statement to BSLD outlining commission payable on
gross xxxxxxxx accepted for the applicable settlement period.
4
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
1.48 Unbillable: TELTRUST messages BSLD is unable to xxxx to an End User
Customer account through its billing and collection agreement with BST.
1.49 Uncollectible: Billed End User Customer charges where BSLD is unable to
effect collection because the End User Customer does not pay the
charge.
1.50 Validation: Process by which a BTN is determined to be authorized and
in good standing by the issuer.
SECTION II. CALLING PLATFORM AND NETWORK SERVICES
2.1 BSLD's Proprietary Access Platform.
[***]
2.2 Calling Platform and Network Facilities.
2.2.1 End User Customers will place calls by dialing a proprietary
800 or 888 access number, which will be routed by TELTRUST to
BSLD's PAP. BSLD's PAP will then, based on End User Customer
prompts, transfer the call to TELTRUST's appropriate platform
and network facilities.
2.2.2 The compensation for all of BSLD's PAP services performed by
BSLD on behalf of TELTRUST for End User Customers over the term
of this Agreement shall be reflected in the commission as set
forth in Section 5.2.2.
2.2.3 Call Types Available Via BSLD's Proprietary Access Platform.
The following types of calls will be permitted via BSLD's PAP,
through End User-selected options on BSLD's PAP menu:
2.2.3.1 Fully Automated Calling Card Calls. These call types
shall include BSLD proprietary cards, non-proprietary
LEC calling card calls, and credit card calls. They
are allowed by End User Customers entering a "l" at
BSLD's PAP menu.
5
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information
2.2.3.2 Automated Collect Calls. These call types are allowed by End User
Customers entering a "2" at BSLD's PAP menu.
2.2.3.3 Directory Assistance Calls. These call types are allowed either
by End User Customers entering a "3" at BSLD's PAP menu, or by
End User Customers placing a fully automated calling card call
with Directory Assistance identified as the destination number.
2.2.3.3.a) TELTRUST shall provide trained directory assistance
operators, access to its national database for United
States listings twenty-four (24) hours a day, seven
(7) days a week. TELTRUST shall provide directory
assistance services for End User Customer inquiries
who identify the city and state in which the desired
called party resides.
2.2.3.4 General Assistance and other Customer Service Calls. These call
types are allowed by End User Customers entering a "4" at BSLD's
PAP menu.
2.2.3.4.a) TELTRUST shall provide connection to BSLD's designated
customer care/fulfillment center when End User
Customers enter a "1" at the General Assistance menu
in order for End User Customers to order BellSouth
calling card calls. The telephone number will be
provided by BSLD.
2.2.3.4.b) TELTRUST shall provide connection to BSLD's designated
fraud or customer service center when End User
Customers enter a "2" at the General Assistance menu
in order for End User Customers to gain calling card
assistance from BellSouth. BSLD will provide dialing
instructions to TELTRUST to complete these calls.
2.2.3.4.c) TELTRUST live operators will connect End User
Customers requesting card fulfillment services to
BSLD's designated center. TELTRUST live operators will
also connect End User Customers with customer service
or card troubles to BSLD's designated fraud or
customer service center via an unannounced collect
call to that center.
2.2.3.5 Live Operator Services. Access to a live operator for call
assistance will be provided by TELTRUST when an End User Customer
enters a "0" at BSLD's PAP menu, when the End User Customer does
not successfully complete a call from elsewhere on BSLD's PAP
menu, or when the End User Customer does not enter a digit to
complete the call processing.
TELTRUST shall provide trained bilingual (English and Spanish)
live call assistance operators twenty-four (24) hours a day,
seven (7) days a week. Call assistance operators shall provide
live operator services for the following types of calls:
(1) Operator Assisted Calling Card Call
(2) Operator Assisted Credit Card Call
(3) Operator Assisted Collect Call
(4) Operator Assisted Third-Party Billed Call
6
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
These services may be provided on a station-to-station or
person-to-person basis.
2.2.3.6 Other call types or services may be added to the existing BSLD
PAP as agreed upon in writing by the Parties.
2.3 Network
2.3.1 TELTRUST shall be responsible for securing the network inbound
access, responsible organization, interconnection and facilities
in order that calls may be delivered to BSLD's PAP and, if
necessary, from BSLD's PAP to TELTRUST's calling platform. Calls
may originate from any location within the United States and its
outlying territories, and from other selected areas that are
included in the North American Numbering Plan.
[***]
2.3.3 TELTRUST shall be responsible for completing calls to their
destination, either via its own network or via transport
agreements with other IXCs.
2.3.4 TELTRUST shall be responsible for all costs associated with the
acquisition, installation and maintenance of necessary switching
equipment to facilitate the call volumes projected by BSLD, as
detailed in Exhibit II. TELTRUST will install its switch(es) and
calling platform facilities at the site(s) mutually agreeable to
both parties. TELTRUST shall be responsible for all costs
covering the facilities between the switch(es) in Atlanta (or
other locations as needed) and its operator center(s).
2.3.5 Unless otherwise agreed to by the parities, TELTRUST will comply
with SS7 signaling requirements for network interconnection with
BSLD or TELTRUST's IXC(s), or both. SS7 signaling will be
provided for both setup and call validation.
2.3.6 Switching and transport equipment utilized by TELTRUST to
provide services pursuant to this Agreement shall meet or exceed
industry performance requirements specified and as applicable in
BellCore's Generic Requirements, GR-929-Core, Issue 1, Revision
1, December 1995. If any unit does not meet current
requirements, TELTRUST will establish a Quality Council with the
manufacturer and initiate action to bring the product or
products in compliance.
2.3.7 Any TELTRUST provided point-to-point trunk group carrying
traffic referred to in this Agreement shall be engineered as
follows:
7
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
Method: Xxxx-Xxxxxxxxx B.01, Low day-to-day variation or industry
standard equivalent
Peakedness Factor: 1.3
This engineering standard may be modified by mutual agreement of
the parties.
2.4 Validation
2.4.1 TELTRUST is responsible to ensure that all calls accessed via
BSLD's PAP (excepting general assistance or other non-xxxx
affecting calls) will be validated using all commercially
reasonable steps.
2.4.2 BSLD shall ensure that its proprietary cards are maintained and
accessible for validation by TELTRUST, either through BSLD's AIN
database, or through LIDB, or both. However, the parties
acknowledge that BSLD's AIN database will not be operational on
the effective date of this Agreement. BSLD will provide thirty
(30) days written notice to TELTRUST as to when the AIN will
become operational; until that time, TELTRUST will validate calls
only against LIDB.
2.4.3 Service Outages.
2.4.3.1 In the event of service outages resulting in TELTRUST's
inability to receive data from either AIN, when
operational, or LIDB, TELTRUST shall rely on internal
software providing algorithmic analysis, NPA analysis
and negative databases. TELTRUST shall immediately
notify BSLD in writing via facsimile in the event of a
database services outage exceeding fifteen (15)
consecutive minutes.
2.4.3.2 TELTRUST reserves the right, with notice to BSLD, to
suspend processing of calls billed to commercial credit
cards, in the event of a service outage.
2.4.6 Fraud Control
2.4.6.1 BSLD will provide selected fraud control and management
services on behalf of TELTRUST for all call which access
BSLD's PAP. The terms and conditions of these services
will be, to the best of BSLD's ability, in accordance
with the terms of its Fraud Management agreement with
other suppliers, of which TELTRUST will be provided
copies for its reference, and whose terms, as they may
apply to TELTRUST, form an integral part of this
Agreement. TELTRUST agrees to keep confidential all
terms of BSLD's Fraud Management agreement in accordance
with the conditions specified in Section 9,
Confidentiality and Non-Disclosure.
2.4.6.2 The compensation for all fraud control and management
services performed by BSLD on behalf of TELTRUST over
the term of this Agreement shall be reflected in the
commission arrangement as set forth in Section 5.2.2.
8
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
2.4.6.3 TELTRUST shall permit BSLD review and monitoring
rights towards call activity generated on TELTRUST's
calling platform residing on BSLD-exclusive switches,
in order that BSLD may provide assistance and support
towards performing fraud control procedures.
2.5 Call Rating
2.5.1 TELTRUST shall provide software and other appropriate systems to
format and rate calls, in accordance with Section 2.6.1.1, in
order that call records will be submitted either (1) to BSLD for
clearinghouse services; or (2) to another clearinghouse provider
designated by TELTRUST; as mutually agreed to by the Parties.
2.6 Reporting
2.6.1 TELTRUST will provide to BSLD on a daily basis, unless otherwise
mutually agreed, the following files:
[***]
2.6.1.2 The Parties shall determine mutually acceptable
methods and procedures for data transfer, including
procedures related to failed data transmissions. These
methods and procedures will be documented within
thirty (30) days of the effective date of this
Agreement.
2.6.1.3 TELTRUST agrees that it will disclose to BSLD all End
User Customer information for all End User Customers
who authorize TELTRUST to provide such disclosure.
2.7 Quality of Services
2.7.1 TELTRUST shall provide the services described in this Agreement
in conformance with the appropriate industry standards for like
services. The parties shall mutually develop network
surveillance procedures that will allow BSLD to monitor
TELTRUST's network integrity and quality. Once the procedures
are established, the Parties agree to meet quarterly, or sooner
if necessary, to review performance and related issues.
9
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
2.7.2 TELTRUST shall provide weekly reports that indicate the quality
of service being provided to End Users. The parties shall
mutually develop format for the reports that is agreeable to
both parties. However, at a minimum, the report format shall be
sufficient to ensure the trunk engineering standard for each
trunk group under TELTRUST's control is in accordance with
Section 2.3.7.
[***]
SECTION III. BILLING SERVICES
3.1 Records/Data Transmission.
3.1.1 TELTRUST shall provide to BSLD on a daily basis by 8:00 a.m.
Eastern Time, unless otherwise mutually agreed, call detail
records (CDRs) for all call attempts and all services
contemplated in this Agreement. A CDR is generated for each call
attempt received by TELTRUST switch(es) via the proprietary
access method. The parties agree to use good faith efforts to
negotiate a Service Level Agreement to document the manner and
format by which TELTRUST will provide CDRs to BSLD.
[***]
3.1.3 Only messages provided by TELTRUST in connection with the BSLD's
Proprietary Access Platform shall be covered by this Agreement.
TELTRUST shall not submit messages to BSLD for billing if such
messages are not eligible to xxxx under this agreement, unless
otherwise agreed to by the Parties.
3.2 Data Processing and Outclearing
3.2.1 Upon receipt of TELTRUST CDRs, BSLD will promptly process the
CDRs through its system edits and screens. Those records that
pass BSLD's edits and screens shall be considered valid billing
records. Those CDRs that do not pass BSLD edits and screens
shall be returned to TELTRUST, either for correction or for
outclearing through alternate means. No BSLD Clearinghouse Fee
shall apply to such records.
10
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
3.2.2 BSLD will reformat the CDRs into EMI format. BSLD will remit CDRs
that pass through its edits and screens to BST within two (2)
business days after receipt.
3.2.3 TELTRUST's name, along with the associated valid EMI billing records
accepted by BST, will appear on the BSLD xxxx xxxx of the BST
telephone xxxx. BSLD shall separately identify TELTRUST messages
from its own or other messages.
3.2.4 Records rejected for billing by BST will be investigated by BSLD for
possible correction and resubmission. The Parties will agree to the
establishment of reject and resubmission methods and procedures.
3.2.5 Unbillable records rejected by BST, through no fault of BSLD, shall
be charged the same Clearinghouse Fee as described in Exhibit I.
BSLD shall return such records to TELTRUST in the format received
from BST.
3.2.6 Unbillable records which are resubmitted to BST for billing and
collection shall be charged the standard Clearinghouse Fee as
described in Exhibit I.
3.2.7 BSLD will provide to TELTRUST daily confirmation of messages
accepted for outclearing. BSLD will also provide to TELTRUST daily
confirmation of message processing activity between BSLD and BST on
TELTRUST's behalf.
3.3 Reports and Returns
3.3.1 BSLD shall provide to TELTRUST those billing and collection reports
which relate specifically to TELTRUST call activity. Such reports
shall include (and be provided within the following time frames):
(a) Rejected CDRs (daily)
(b) Unbillable CDRs (daily)
(c) Taxes (monthly)
(d) Post Billing Adjustments (monthly)
(e) Bad Debts by Account (monthly)
Such reports shall be provided in a paper format at the initiation
of this Agreement. BSLD agrees to supply the detail to TELTRUST in a
mechanized format once it develops the means to do so.
SECTION IV. BILLING AND COLLECTIONS.
[***]
11
BSLD/TEL TRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[***]
SECTION V PAYMENTS AND SETTLEMENTS.
5.1 BSLD Payment Obligations to TELTRUST.
[***]
5.1.1.2 LEC Rejects. TELTRUST revenue accepted by BSLD but
rejected for billing by BST. These messages will be
investigated for error correction and resubmission in
accordance with Section 3.2.4. LEC Rejects will reduce
TELTRUST accounts receivable only after it is discovered
that the reject did not occur due to error on the part of
BSLD or BST.
5.1.1.3 Taxes. For each settlement period, taxes associated with
TELTRUST's billed messages will be determined by BST, and
added to TELTRUST's accounts
12
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
receivable. Tax reports reconciling the amount of increase
will be provided on a monthly basis.
5.1.1.4 Unbillables. For each settlement period, BSLD will calculate
TELTRUST's amount of messages that cannot be billed to End
User Customers, and reduce TELTRUST's accounts receivables
by the total amount. BSLD will provide a summary report of
unbillables activity.
5.1.1.5 Post Billing Adjustments. For each settlement period, BSLD
will calculate the amount of accounts receivable previously
purchased in which an adjustment was granted to the End User
Customer's account, and reduce TELTRUST's accounts
receivable by the total amount. BSLD will provide a summary
report of PBA activity on an adjustment or account level
basis, and where available, on an adjusted message level
basis.
5.1.1.6 Bad Debts. For each settlement period, BSLD will calculate
the amount of net realized End User Customer bad debts on
accounts receivable previously purchased, and reduce
TELTRUST's accounts receivable the total net amount. Net
realized bad debts are made up of two parts:
(1) Actual write-offs of End User Customer amounts due that
have been removed from the books after completion of
standard collection efforts;
(2) Recoveries on previously written off End User Customer
amounts due.
Taxes associated with the realized bad debt amounts are also
reported on the PARS Statement and recoursed to TELTRUST in
the same month in which the revenue is written off or
recovered. BSLD will provide a summary report of bad debt
and recovery activity on an account level basis.
5.1.1.7 Clearinghouse Fees. For each settlement period, BSLD will
calculate the amount of clearinghouse fees for all messages
outcleared by BSLD for billing purposes, and reduce
TELTRUST's accounts receivable by the total. The
clearinghouse fees are set forth in Section 5.2.1.1.
5.1.1.8 Other Adjustments. BSLD will add or subtract other amounts
that affect the net realized purchase amount Such amounts
include, but are not limited to, settlement of claims or
corrections of previous PAR activities, and Settlement
Reserve as explained in Section 5.1.2. BSLD shall supporting
documentation for such adjustments where applicable.
[***]
13
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[***]
5.2 TELTRUST Payment Obligations to BSLD
5.2.1 Clearinghouse Fees
5.2.1.1 For those messages identified as requiring outclearing by
BSLD to BST for billing, BSLD shall assess TELTRUST a
charge per message outcleared as set forth in Exhibit I.
5.2.2 Commission
[***]
14
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[***]
SECTION VI TAXES.
6.1 Taxes - Xxxx Processing Service
6.1.1 BSLD shall compute, xxxx and collect all applicable Taxes to its End
Users and remit such Taxes to TELTRUST through the PARS process.
BSLD shall use the same tax practice and procedures (including
exemption procedures) to apply Taxes on similar or comparable BSLD
services, unless notified in writing by TELTRUST to do otherwise.
BSLD shall implement any legislated tax law or tax rate changes into
its procedures as required by applicable tax law for services billed
by BSLD. TELTRUST shall give BSLD instructions for application of
Taxes for any new services in the form of an Change Request.
TELTRUST will provide BSLD with written notification for any taxes
or taxing requirements that may apply to it and not to the BSLD
including but not limited to those taxes or taxing requirements
covered by agreements with the taxing authority.
6.1.2 TELTRUST has the right to review BSLD's)'s tax procedures and
supporting documentation, and BSLD shall supply TELTRUST with such
documentation upon request by TELTRUST at a mutually agreeable
location. TELTRUST can request BSLD to change its tax procedures
with respect to applying and billing Taxes on TELTRUST's messages
via a Change Request.
6.1.3 BSLD shall furnish to TELTRUST on a timely basis, all information
and reports in its possession reasonably necessary for TELTRUST to
file its tax returns within the applicable filing period. TELTRUST
may request modifications to BSLD reporting for Taxes via a Change
Request. TELTRUST shall file all returns for all such Taxes with the
applicable taxing authority and pay or remit all such Taxes to the
applicable taxing authority. BSLD shall have no responsibility for
payments of Taxes to the taxing authorities.
6.1.4 BSLD shall use the same Tax exemption status with respect to
TELTRUST's End Users as it uses for its own End User Customers, and
when requested by BSLD, furnish copies of such information as may be
in its possession regarding Tax exemption of End User Customers.
BSLD shall maintain information regarding Tax exemption status of
15
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
TELTRUST's End User Customers in a reasonably accurate and complete
manner. End User Customer status information shall be maintained by
BSLD in the same manner as it would maintain records for its own End
User Customers. TELTRUST may review information relating to End User
Customer's Tax exemption status and request that BSLD change Tax
exemption status with respect to TELTRUST's services as mutually
agreed upon by the tax departments of both Parties.
6.1.5 BSLD is responsible for ensuring the implementation of any
legislated Tax rate changes on Taxes currently being charged to End
User Customers on TELTRUST's behalf, which are also being billed for
BSLD's End User Customers.
6.2 BSLD shall not remit Taxes to TELTRUST when it is not able to do so as a
result of legal restrictions; however, TELTRUST reserves the right to
challenge such determinations.
6.3 BSLD shall not be entitled to retain or receive any statutory fee or share
of Taxes that the person collecting or remitting such Taxes is entitled
under applicable law.
6.4 BSLD, as directed by BST, shall be responsible for calculating and billing
any foreign states' taxes associated with a jurisdiction where the call
originates in a state other than the billing state.
6.5 TELTRUST understands and agrees that BSLD is merely providing services with
respect the billing and collection of Taxes hereunder.
6.6 All communications with taxing authorities regarding Taxes applicable to
TELTRUST shall be the responsibility of TELTRUST.
6.7 Taxes - Indemnity and Recourse
6.7.1 BSLD agrees to indemnify, hold harmless, and defend (at BSLD's
expense) TELTRUST from and against any liability or loss resulting
from Taxes, penalties, interest, additions to Tax surcharges, or
other charges or payable expenses (including reasonable attorney's
fees) incurred by TELTRUST as a result of the willful misconduct or
gross negligence of BSLD to accurately calculate and xxxx Taxes as
instructed by TELTRUST pursuant to Section 6.2 hereto. Such
indemnity shall be provided to TELTRUST on an after tax basis.
6.7.2 TELTRUST shall indemnify, hold harmless, and defend (at TELTRUST's
expense) BSLD from and against any liability or loss resulting from
any Taxes, penalties, interest, additions to Tax surcharges, or
other charges or payable expenses (including reasonable attorney's
fees) incurred by BSLD as a result of:
6.7.2.1 TELTRUST's failure to pay any Tax or file any return or
other information as required by law or the Agreement; or
6.7.2.2 BSLD complying with the Agreement or with any
determination or direction by or advice of TELTRUST
provided in writing by TELTRUST, or BSLD correctly using
this information provided in writing by TELTRUST in
performing any Tax-related service hereunder; or
6.7.2.3 BSLD acting or failing to take any action with respect to
any Tax which is the subject of this Agreement.
6.7.3 Notwithstanding the above, such indemnity is conditioned upon BSLD
providing TELTRUST or TELTRUST providing BSLD with notice (which
notice shall be given
16
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
allowing the Party time to file a response, but in no event more
than ten (10) business days of receipt of assessment) of any
assessment of any additional Taxes, penalties, or interest due with
respect to this Agreement. BSLD shall receive a copy of all filings
in any such preceding, protest or legal challenge, all rulings
issued in connection therewith and all correspondence between
TELTRUST and the taxing authority.
6.7.4 If TELTRUST disagrees that any Taxes are payable by BSLD, disagrees
with an assessment of any additional Taxes, penalties, interest,
additions to tax surcharges, or other charges or payable expenses
due by BSLD as a result of BSLD's billing to TELTRUST for services
under this Agreement, TELTRUST shall, at its option and expense
(including, if required by a taxing authority, payment of such Tax,
penalty and interest before final resolution of the issue) have the
right to seek administrative relief, a ruling, judicial review
(original or appellate level) or other appropriate review (in a
manner deemed appropriate by TELTRUST, as to the applicability of
any Tax, penalty or interest, or to protest any assessment and
direct any legal challenge filed with the Internal Revenue Service
or in a court of law such assessment, and shall be liable hereunder
for any such amount ultimately determined to be due.
6.7.5 Any legal proceeding or any other action with respect to BSLD and
with respect to any asserted liability or additional Taxes due by
BSLD shall be under BSLD's direction, but TELTRUST shall be
consulted. Any legal proceeding or any other action with respect to
TELTRUST and with respect to any asserted liability of additional
Taxes due by TELTRUST shall be under TELTRUST's direction, but BSLD
shall be consulted. In any event, both Parties shall fully cooperate
with each other as to the asserted liability. TELTRUST shall bear
all the costs of any such action undertaken at its specific request.
BSLD shall bear the costs of any such action undertaken absent such
a request from TELTRUST.
6.8 Gross Receipts Taxes. BSLD is outclearing TELTRUST's revenues for a
specific fee. BSLD shall not report these xxxxxxxx as its own receipts for
gross receipts tax purposes or any other tax purpose.
6.9 Taxes Associated with Service Charges. Should any Federal, State or local
jurisdiction determine that sales, use, gross receipts or other receipts,
or any other taxes (including interest, penalties and surcharges thereon)
are due by BSLD as a result of BSLD's or its billing provider's provision
of services and such taxes have not already been billed through BSLD and
paid by TELTRUST, BSLD shall advise TELTRUST and TELTRUST shall be liable
for any such taxes, interest, penalties, and surcharges, and TELTRUST shall
immediately reimburse BSLD for the amount of such taxes, interest,
penalties and surcharges paid by BSLD. If TELTRUST disagrees with BSLD's
determination that any Taxes are due, TELTRUST shall, at its option and
expense, including immediate payment of any such assessment, have the right
to seek a ruling as to the inapplicability of any such tax or to protest
any assessment and participate in any legal challenge to such assessment,
but shall be liable for any Tax, penalty, surcharge and interest ultimately
determined to be due.
6.10 Billing Agent. For purposes of this Section VI, Taxes, BSLD shall be
defined to include its authorized billing agents.
SECTION VII TERM AND TERMINATION
7.1 The Initial Contract Term of this Agreement shall begin on October 15,
1997, the effective date, and end on October 15, 1999, and may renew in
full force and effect, automatically on monthly basis unless agreed to
otherwise by the Parties. BSLD may terminate the Agreement for
17
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
convenience by providing a sixty (60) day written notice. However, in the
event BSLD terminates the Agreement, pursuant to this Section 7.1, twelve
months or sooner from the effective date, a [***] early termination fee
will apply from the date of termination through the twelfth (12th) month.
7.2 BSLD may, upon thirty (30) days notice, terminate this Agreement without
penalty or prejudice, provided BSLD utilizes TELTRUST services under the
terms and conditions of the Operator and Network Services Agreement, signed
between the Parties, dated November 21, 1996.
7.3 TELTRUST may terminate this Agreement with reasonable notice to BSLD in the
event BSLD is in default of any payment obligations under this Agreement,
provided that BSLD has failed to cure such non-payment within thirty (30)
calendar days of notification. TELTRUST may also terminate this Agreement
at any time in the event BSLD is in breach of its performance obligations
under this Agreement, and provided BSLD fails to take all commercially
reasonable steps to cure such breach or default within sixty (60) calendar
days after written notice of such default or breach is given to BSLD.
7.4 BSLD may terminate this Agreement with reasonable notice to TELTRUST in the
event TELTRUST is in default of any payment obligations under this
Agreement, provided that TELTRUST has failed to cure such non-payment
within thirty (30) calendar days of notification. BSLD may also terminate
this Agreement at any time in the event TELTRUST is in breach of its
performance obligations under this Agreement, and provided TELTRUST fails
to take all commercially reasonable steps to cure such breach or default
within sixty (60) calendar days after written notice of such default or
breach is given to TELTRUST.
[***]
SECTION VIII BRANDING AND REGULATORY ISSUES.
8.1 TELTRUST shall provide branding and call rating in accordance with its
federal and state tariffs.
8.2 TELTRUST represents that it has all necessary legal authority to charge and
collect the rates for services contemplated in this Agreement, and that
TELTRUST complies with applicable regulatory requirements incident to such
rates. TELTRUST shall supply to BSLD, at its request, copies of any
applicable state and federal tariffs, certifications or other documentation
governing authority and rates, terms and conditions of TELTRUST service
provisioning.
8.3 BSLD represents that it has all necessary legal authority to perform the
services contemplated in this Agreement, and that BSLD complies with
applicable regulatory requirements incident to such services.
SECTION IX. CONFIDENTIALITY AND NON-DISCLOSURE.
9.1 Confidential Information
9.1.1 Information furnished or disclosed by one Party or its agent or
representative (the "Originating Party") to the other Party or its
agent or representative (the "Receiving Party") in connection with
or in contemplation of this Agreement, or relating to current or
anticipated voice and data telecommunications needs of BSLD or its
Participating Affiliates (including but not limited to proposals,
contracts, tariff and contract drafts,
18
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
specifications, drawings, network designs and design proposals,
pricing information, strategic plans, computer programs, software
and documentation, and other technical or business information
related to current anticipated TELTRUST or BSLD products and
services) shall be "Confidential Information".
9.1.2 If such information is in written or other tangible form (including,
without limitation, information incorporated in computer software or
held in electronic storage media) when disclosed to the Receiving
Party, it shall be Confidential Information only if it is identified
by clear and conspicuous markings to be confidential or proprietary
information, or both, of the Originating Party; provided, however,
that all written proposals exchanged between the Parties regarding
pricing of the Services shall be Confidential Information, whether
or not expressly indicated by markings or statements to be
confidential or proprietary.
9.1.3 If such information is not in writing or other tangible form when
disclosed to the Receiving Party, it shall be Confidential
Information only if:
(1) The original disclosure of the information is accompanied
by a statement that the information is confidential or
proprietary, or both; and
(2) The Originating Party provides a written description of
the information so disclosed, in detail reasonably
sufficient to identify such information, to the Receiving
Party within thirty (30) calendar days after such original
disclosure.
9.1.4 The terms and conditions of this Agreement shall be deemed
Confidential Information as to which each Party shall be both an
Originating Party and a Receiving Party.
9.1.5 Confidential Information shall be deemed the Property of the
Originating Party.
9.1.6 The following categories of information shall not be Confidential
Information:
9.1.6.1 Known to the Receiving Party without restriction when
received, or thereafter developed independently by the
Receiving Party; or
9.1.6.2 Lawfully obtained from a source other than the Originating
Party through no breach of confidence by the Receiving
Party; or
9.1.6.3 In the Public domain when received, or thereafter enters
the public domain through no fault of the Receiving Party;
or
9.1.6.4 Disclosed by the Originating Party to a third party
without restriction; or
9.1.6.5 Lawfully in the possession of the Receiving Party at the
time of receipt from the Originating Party.
9.1.7 Rights and obligations provided in this Section shall take
precedence over specific legends or statements associated with
information when received.
9.2 Protection of Confidential Information
9.2.1 A Receiving Party shall hold all Confidential Information in
confidence during the Term of this Agreement and for a period of
three (3) years following the end of the Term or such other period
as the Parties may agree. During that period, the Receiving Party:
19
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
9.2.1.1 Shall use such Confidential Information solely in
furtherance of the matters contemplated by this Agreement
and related to either Party's performance of this
Agreement;
9.2.1.2 Shall reproduce such Confidential Information only to the
extent necessary for such purposes;
9.2.1.3 Shall restrict disclosure of such Confidential Information
to such of its employees or its Affiliate's employees as
have a need to know such information for such purposes
only;
9.2.1.4 Shall advise any employees and agents to whom such
Confidential Information is disclosed of the obligations
assumed in this Agreement;
9.2.1.5 Shall not disclose any Confidential Information to any
third party (not including disclosure to a BellSouth
subsidiary or persons identified in Section 9.3 and
Section 9.5) without prior written approval of the
Originating Party except as expressly provided in this
Agreement; and
9.2.1.6 Shall take such other reasonable measures as are necessary
to prevent the disclosure, unauthorized use or publication
of Confidential Information as a prudent business person
would take to protect its own similar confidential
information, including, at a minimum, the same measures it
uses to prevent the disclosure, unauthorized use or
publication or its own similar proprietary or confidential
information.
9.3 Disclosure to or by Affiliates, Consultants or Subcontractors. In the
absence of a contrary instruction by a Party, such Party's Affiliates,
consultants, subcontractors and agents performing work in connection with
this Agreement shall be deemed agents of such Party for purposes of receipt
or disclosure of Confidential Information. Accordingly, any receipt or
disclosure of Confidential Information by a Party's Affiliate, or its
consultant or subcontractor performing work in connection with this
Agreement, shall be deemed a receipt or disclosure by the Party.
9.4 Return or Destruction of Confidential Information.
9.4.1 Upon termination of this Agreement, or at an earlier time if the
information is no longer needed for the purposes described in
Section 9.2.1.1, each Party shall cease use of Confidential
Information received from the other Party and shall use its best
efforts to destroy all such Confidential Information, including
copies thereof, then in its possession or control. Alternatively, or
at the request of the Originating Party, the Receiving Party shall
use its best efforts to return all such Confidential Information and
copies of the Originating Party.
9.4.2 Any Confidential Information that is contained in databases or
mechanized systems in such a manner that it reasonably cannot be
isolated for destruction or return, shall continue to be held in
confidence subject to the provisions of this Agreement.
9.4.3 The rights and obligations of the Parties under this Agreement with
respect to any Confidential Information return to the Originating
Party shall survive the return of the Confidential Information.
9.5 Required Disclosure. A Receiving Party may disclose Confidential
Information if such- disclosure is in response to an order or request from
a court, the FCC or other regulatory body provided, however, that before
making such disclosure, the Receiving Party shall first give the
20
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
Originating Party reasonable notice and opportunity to object to the order
or request, or obtain a protective order covering the Confidential
Information to be disclosed, or both.
SECTION X. INDEMNIFICATION AND LIMITATION OF LIABILITY.
10.1 Indemnification. Each Party (as "Indemnitor") shall indemnify, defend and
hold harmless the other Party (as "Indemnitee") from and against any and
all liabilities, costs, damages, fines, assessments, penalties and
expenses (including reasonable attorney's fees) resulting from: (a) breach
of any provision in this Agreement by the Indemnitor, its employees or
operators; or (b) any misrepresentation or illegal act of Indemnitor, its
employees or operators, arising out of the Indemnitor's performance
hereunder.
10.2 Limitation of Liability. The liability of either Party for damages
resulting in whole or in part from or arising in connection with the
furnishing of service under this Agreement, including but not limited to
mistakes, omissions, interruptions, delays, errors or other defects shall
not exceed an amount equal to the charges under this Agreement applicable
to the specific call or service that was affected. No other liability
shall attach to TELTRUST including, but not limited to, liability for
special, indirect, or consequential damages arising from or in connection
with the furnishing of service or equipment hereunder. This limitation
shall not apply to instances of gross negligence or willful misconduct.
10.3 Warranties. THE WARRANTIES AND REMEDIES SET FORTH IN THIS AGREEMENT ARE
THE ONLY WARRANTIES AND REMEDIES WITH RESPECT TO THE SERVICES PROVIDED
HEREUNDER, AND ARE IN LIEU OF ANY OTHER WARRANTY, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
SECTION XL DISPUTE RESOLUTION.
11.1 Mediation. In the event of a material breach of any of the terms or
conditions of this Agreement, the wronged Party shall inform the other
Party of such breach in writing, which writing shall serve as notice to
cure or rectify such breach. The other Party shall have sixty (60)
calendar days from receipt of such notice to cure or rectify such breach,
except for non-payment, as described in Sections 7.3 and 7.4. If, however,
after sixty (60) calendar days the wronged Party has not received a
satisfactory remedy, the Parties shall agree to submit all disputes 'for
mediation in accordance with the rules of the Center for Public Resources.
The mediation, unless otherwise mutually agreed upon by the Parties, shall
be conducted in Atlanta, Georgia for any dispute submitted by TELTRUST, or
in Salt Lake City, Utah for any dispute submitted by BSLD. The Parties
shall use their best efforts to conclude any mediation initiated hereunder
within forty-five (45) calendar days, unless otherwise agreed to in
writing by the Parties, from the initiation of such mediation.
11.2 Arbitration. If after the initial time period referred to in Section 11.1
above expires without resolution of the outstanding dispute, either Party
may request that the dispute be settled by binding arbitration in
accordance with the rules of the Center for Public Resources. The
arbitration shall be governed by the United States Arbitration Act, 9
U.S.C. Sec 1, et seq., and judgment upon the award rendered by the
arbitrator(s) may be entered by any court with jurisdiction.
21
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
SECTION XII. MISCELLANEOUS.
12.1 Notice. Unless otherwise agreed herein, all notices, requests, or other
communications shall be in writing, effective when received, to the
following unless subsequently changed in writing:
TELTRUST Communications Service, Inc. BellSouth Long Distance, Inc.
000 X. Xxxxxxx Xxxxxxxxx Xxxxx 00 Xxxxxxxxx Xxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000 Xxxxxxx, XX 00000 Attn:
Vice-President & General Counsel Attn: Sr. Director Carrier Relations
Phone: (000) 000-0000 Phone: (000) 000-0000
Facsimile: (000)000-0000 Facsimile: (000)000-0000
12.2 Compliance with Applicable Law.
12.2.1 This Agreement is made subject to all present and future orders,
rules and regulations of any regulatory body having jurisdiction
over the subject matter hereof, and to the laws of the United
States of America or any of its states having jurisdiction over
the Parties and the subject matter contained herein (collectively,
"Applicable Law"). In the event this Agreement or any of its
provisions shall be found contrary to, or in conflict with, any
such Applicable Law, this Agreement shall be deemed modified to
the extent necessary to comply with such Applicable Law, and shall
be modified in such a way as the Parties mutually agree is
consistent with the form, intent, and purpose of its surviving
provisions.
12.2.2 This Agreement shall be construed in accordance with and supports
the state Tariffs which deal with the provision of services by
BSLD or its billing services provider to ership IXCs such as
TELTRUST. It is expressly understood and acknowledged that the
intrastate billing services are provided pursuant to and under the
terms and conditions of the applicable state Tariffs in effect. In
the event of any conflict between this Agreement and the state
Tariffs, the state Tariffs regarding intrastate traffic shall
prevail. It is understood by both Parties that regulatory action
may supersede the terms and conditions of this Agreement.
12.2.3 TELTRUST shall obtain and keep current Federal, State and local
licenses or approvals that may be required to carry the traffic or
otherwise conduct the business for which BSLD is outclearing
hereunder. TELTRUST is solely and fully responsible to BSLD for
any damages incurred due to breach of this obligation. COPIES OF
ALL REQUIRED CERTIFICATIONS AND APPROVALS, IN THE APPLICABLE
JURISDICTIONS, OBTAINED BY TELTRUST SHALL BE FURNISHED TO BSLD
BEFORE THE IMPLEMENTATION OF THIS AGREEMENT OR, IF ISSUED DURING
THE TERM OF THIS AGREEMENT, WITHIN THIRTY (30) DAYS OF ISSUANCE.
12.2.4 BSLD shall obtain and keep current all Federal, State and local
licenses or approvals and comply with other such regulations as
may be applicable to the Services performed by BSLD hereunder.
12.3 Policy Statements. TELTRUST agrees that it will abide by all reasonable
policy statements issued by BSLD regarding the provision of services to
BellSouth customers. In the event that TELTRUST fails to abide by said
policy statements, BSLD may terminate this Agreement pursuant to Section
7.4.
22
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
12.4 Audit Rights. Each Party (as Auditor") shall have the right to perform
audits as described herein of the services provided to it by the other
Party (as "Auditee"). The audit will be located at the Auditee's company
location during normal business hours, and will be performed only on
information that reasonably may bear upon the provision of services
specified as part of this Agreement. Unless otherwise agreed, Auditor shall
be limited to one audit per calendar year. Auditor shall give notice of its
intent to perform an audit at least thirty (30) calendar days prior to the
proposed commencement date. Such notice will include the specific objective
of the audit, the proposed commencement date, primary Auditor contact
names, and to the best of Auditor's ability, the information requested for
review. Auditee will make reasonable efforts to ensure that all information
requested by Auditor and required to perform an audit, subject to
information deemed to be proprietary and confidential information relating
to other Auditee client or product activity, will be made available by the
audit commencement date. Within sixty (60) calendar days after the
conclusion of an audit, Auditor will prepare a final written report,
identifying any deficiencies found and documenting any claims associated
with the audit. Upon receipt of Auditor's final report, Auditee will
investigate all findings and claims, and provide a written response to
Auditor within thirty (30) calendar days. Each Party will bear its own
expenses in connection with performing an audit.
12.5 GOVERNING LAW. With respect to any lawsuit or binding arbitration involving
this Agreement, the Parties hereto agree that the prevailing law shall be
that of the State of Georgia.
12.6 COSTS OF ENFORCEMENT. In the event of litigation arising from the
enforcement of this Agreement the parties hereto agree that all costs,
including reasonable attorney's fees of the prevailing Party shall be paid
by the losing Party, unless otherwise agreed.
12.7 NO AGENCY. Neither party is authorized to act as an agent for, or legal
representative of, the other Party and neither Party shall have authority
to assume or create any obligation on behalf of, in the name of, or binding
upon, the other Party. Provision of services hereunder shall not create a
partnership, joint venture or other like relationship between the Parties.
12.8 INTELLECTUAL PROPERTY.
12.8.1 Neither BSLD nor TELTRUST shall use the others trade names,
trademarks or service marks ("Marks"), nor permit them to be
displayed or used by third parties, except as specifically provided
in this Agreement or upon other prior written approval of the other
Party. Nothing in this Agreement creates in a Party rights in the
trade names, trademarks or service marks of the other Party.
12.8.2 Except as otherwise specifically provided in this Agreement, neither
BSLD nor TELTRUST will: (a) use the other Party's corporate logos,
trade dress, or other symbols that serve to identify and distinguish
such other party from its competitors (or use confusingly similar
corporate logos, trade dress or such other symbols); or (b) conduct
business under the other Party's corporate or trade names, logos,
trademarks, servicemarks, trade dress, or other symbols that serve
to identify and distinguish such other Party from its competitors
(or under any cunfusingly similay corporate or trade names, logos,
trademarks, service marks, trade dress or such other symbols.)
12.8.3 BSLD or its contractors or agents may develop specification,
drawings, documentation, concepts, methods, techniques, processes,
adaptations and ideas including, but not limited to, software
(hereinafter "Software") for the purpose of rendering Services under
this Agreement. Unless otherwise agreed by authorized
representatives of the Parties, in writing, in advance of the
creation of the Software, BSLD shall own all right, title and
interest, including copyright, in and to the Software.
23
BSLD/TELTRUST Proprietary
subject to Confidentiality Agreement
12.9 Waiver of Breach. Failure of either Party to exercise any rights
granted to it hereunder upon any breach or default by such Party
shall not be deemed a waiver in the event of further breaches or
defaults.
12.10 Assignment. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated to any other entity, except
for subsidiaries or affiliates, without the prior written consent of
the other Party, which consent shall not be unreasonably withheld.
TELTRUST may, without further permission but with proper notice to
BSLD, assign its right to receive payment from BSLD.
12.11 Entire Agreement. This Agreement, together with the attached
Exhibits, represents the entire agreement of the Parties with
respect to the subject matter hereof and supersedes all other
agreements between the Parties relating to the services provided
hereunder.
12.12 Force Majeure. With the exception of BSLD's obligation to make
payments to TELTRUST as provided for herein, neither Party hereto
shall be obliged to perform its obligations or commitments hereunder
if prevented therefrom by reason of labor disputes, equipment or
software failures, government regulations, court injunctions, acts
of nature, accidents, fires, floods or any other occurrence beyond
the control of the Party involved, including the failure of third
party providers, such as suppliers of telephone lines to deliver
adequate or timely services. In the event either Party curtails or
suspends its services or obligations as provided under this Section
12.11, it shall incur no liability to the other Party or to any
other party or entity arising therefrom.
12.13 Modification of Agreement. This Agreement, including its Exhibits,
may be amended, modified or supplemented only by a separate written
document executed by both Parties.
12.14 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the successors and permitted assigns of either Party.
12.15 Survival. The Parties agree that the termination of this Agreement
pursuant to any provision or section hereof, or for any other
reason, shall not affect or terminate any obligation or liability
incurred or assumed by either Party before the effective date of
termination of this Agreement, and the provisions of this Agreement
shall survive its termination with respect to conclusion of any
unresolved matters relating to the Services performed before
termination.
12.16 Descriptive Headings. Descriptive headings in this Agreement are for
convenience only and shall not affect the content or construction of
this Agreement.
24
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers.
BELLSOUTH LONG DISTANCE, INC. TELTRUST COMMUNICATIONS SERVICES, INC.
By: /s/ Xxxxxxx X. Reddersem By: /s/ Xxxx X. Xxxxx
----------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxx
Title: Group President, BellSouth Long Title: President and C.E.O.
Distance & Video Services
Date: 10/15/97 Date: 10/15/97
----------------------- ----------------------
25
BSLD/TELTRUST Proprietary
Subject to Confidentiality Agreement
EXHIBIT I
of the
Proprietary Platform
Agency Agreement
Between
BellSouth Long Distance, Inc.
and
Teltrust Communications Services, Inc.
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[Prior to redaction of confidential information this Exhibit comprised 1 page.]
EXHIBIT II
of the
Proprietary Platform
Agency Agreement
Between
BellSouth Long Distance, Inc.
and
Teltrust Communications Services, Inc.
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[Prior to redaction of confidential information this Exhibit comprised 1 page.]
EXHIBIT III
of the
Proprietary Platform
Agency Agreement
Between
BellSouth Long Distance, Inc.
and
Teltrust Communications Services, Inc.
[***]
* Portions of this Agreement have been redacted to preserve the Company's
confidential information.
[Prior to redaction of confidential information this Exhibit comprised 2 pages.]
