EX.10.18
AGREEMENT
TABLE OF CONTENTS
Page
I. Provision of Billing and Collection Services. . . . . . . . . . . . 5
II. SWBT Services . . . . . . . . . . . . . . . . . . . . . . . . . . .17
III. Rates and Charges For Services Ordered. . . . . . . . . . . . . . .20
IV. Application of Taxes to End-Users . . . . . . . . . . . . . . . . .22
V. Purchase of Accounts Receivable . . . . . . . . . . . . . . . . . .28
VI. Service Center Procedural Guidelines. . . . . . . . . . . . . . . .28
VII. Dispute Resolution and Audits . . . . . . . . . . . . . . . . . . .29
VIII. Liability and Indemnification . . . . . . . . . . . . . . . . . . .35
IX. Proprietary Information . . . . . . . . . . . . . . . . . . . . . .39
X. Amendments; Waiver. . . . . . . . . . . . . . . . . . . . . . . . .39
XI. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
XII. Notice and Demands. . . . . . . . . . . . . . . . . . . . . . . . .40
XIII. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . .40
XIV. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . .40
XV. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . .41
XVI. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . .41
XVII. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . .41
XVIII. Executed in Counterparts. . . . . . . . . . . . . . . . . . . . . .42
XIX. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
XX. Termination of Service. . . . . . . . . . . . . . . . . . . . . . .42
XXI. Certification Requirements. . . . . . . . . . . . . . . . . . . . .43
XXII. End-User Service Denial . . . . . . . . . . . . . . . . . . . . . .44
XXIII. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
XXIV. Customer Agency . . . . . . . . . . . . . . . . . . . . . . . . . .45
XXV. Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
XXVI. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . .46
XXVII. Right to Withhold . . . . . . . . . . . . . . . . . . . . . . . . .47
XXVIII. Independent Contractors . . . . . . . . . . . . . . . . . . . . . .47
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XXIX. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . .47
Signature Page. . . . . . . . . . . . . . . . . . . . . . . . . . .47
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LIST OF SCHEDULES
Schedule I. Order for Billing and Collection Services
Schedule II. Billing and Collection Services Price List
Schedule III. Start-Up Charge
Schedule IV. Minimum Annual Purchase of Service
LIST OF EXHIBITS
Exhibit A Proprietary Information
Exhbiit B Billing and Collection Services Requirements Document
Exhibit C Billing and Collection Services Invoice Billing Requirements
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AGREEMENT FOR THE
PROVISION OF BILLING AND COLLECTION SERVICES
BETWEEN SOUTHWESTERN XXXX TELEPHONE COMPANY AND
AXCES INC.
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(Customer NAME)
This Agreement for the Provision of Billing and Collection Services (hereinafter
"Agreement") is entered into and effective this 21st day of November, 1997,
between Southwestern Xxxx Telephone Company (hereinafter "SWBT") a Corporation
in good standing, organized and existing under the laws of the State of Missouri
and having its principle place of business in St. Louis, Missouri and
AXCES INC.
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(Customer's Name)
a CORPORATION
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(Corporation, Partnership, Sole Proprietorship),
in good standing, organized and existing under the laws of the State of
TEXAS
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(N/A if not a corporation)
and having its principle place of business in
HOUSTON, TEXAS
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(City and State)
If intrastate services are provided in the states of Kansas and/or Texas, this
Agreement shall take effect, in Kansas, upon approval of this Agreement by the
Kansas Corporation Commission, and in Texas, upon approval of this Agreement by
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the Texas Public Utility Commission. The Customer shall request that SWBT file
this Agreement with the applicable state regulatory jurisdictions for approval.
It is understood by the parties that services may not be immediately initiated,
but that any time, for matters such as regulatory approval of the Agreement and
service start-up and testing, will be included within the term of this Agreement
and that the effective date of this Agreement is not delayed or affected by the
timing of actual provision of service, see: Schedule I (for term of service(s)
ordered) attached hereto.
In consideration of the Customer's agreement to make payment for services as
described herein and of SWBT's willingness to provide said services as described
herein during the term of this Agreement, the parties agree as follows:
I. Provision of Billing and Collection Services
A. SWBT's billing and collection services (B&C Services) shall be
provided in accordance with this Agreement and any applicable tariffs.
This Agreement and its Exhibits attached hereto and incorporated
herein, complement such tariffs to the extent that this Agreement is
not in conflict or inconsistent therewith. To the extent of any
conflict or inconsistency between this Agreement (and its Exhibits)
and such tariffs, the provisions of such tariffs shall control SWBT's
B&C Services in that jurisdiction, unless the Agreement (and its
Exhibits) are approved by the regulatory body which governs SWBT's B&C
Services in that jurisdiction. In the latter event, the Agreement
(and its Exhibits) shall control as authorized by any such
jurisdictional regulatory body. However, it is the intention of the
parties that this Agreement and its Exhibits, to the extent not in
conflict with the provisions of such tariffs, are to be construed to
the extent possible in harmony with any such tariffs.
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B. When xxxx rendering services are ordered, the Customer will make an
upfront initial "start-up" payment as indicated on Schedule III. Such
payment will be included with the Customer's submission of this signed
Agreement to SWBT. A separate start-up charge is associated with
Invoice Billing as indicated on Schedule III. Notwithstanding the
above, Customers who are renewing existing xxxx rendering services are
not subject to additional initial start-up payments.
C. Xxxx rendering services Customers will make a guaranteed minimum
purchase of services from SWBT under this Agreement, see Schedule I,
paragraph 5 and Schedule IV, attached hereto.
1. Calculation of the annual (consecutive 12 months) minimum
purchase of services shall be based on the Customer's annual
billed volumes. A comparison will be made of actual amount
billed to the Customer and the minimum annual purchase of
services. This comparison will be made within ninety (90) days
after the completion of each year of the contract. The Customer
will pay no less than the applicable yearly minimum purchase of
services for that year. Should the actual annual amount billed
to the Customer be less than the stated minimum annual purchase
of service, an adjustment will be made to the Customer's purchase
of accounts receivable.
a) Minimums will be tracked on a monthly basis requiring
one-twelfth (1/12) of the annual minimum to be
satisfied each month. Any year to date monthly minimum
short fall will be calculated in the Customer's reserve
requirement as defined in Exhibit B, Section 3.1.5 of
this Agreement.
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2. All annual billing and collection charges except 1) prior year
guaranteed minimum purchase of service true-up charges, 2)
Outside Collection Agency (OCA) charges and 3) quarterly
uncollectible true-up charges paid by the Customer under this
Agreement will be recognized in determining whether the Customer
has met any annual minimum purchase of services. The Customer's
billing and collection service charges shall be based on service
volumes multiplied by the appropriate price, as set forth in the
price list contained in Schedule II attached hereto, or any
applicable tariff.
3. If, during the period immediately preceding the effective date
of this Agreement, the Customer has not subscribed to Services
offered under this Agreement, a period of time for service
start-up, testing and regulatory approval of the Agreement (up
to ninety (90) calendar days) may be necessary prior to the
first xxxx being rendered. In such cases, a proportional
reduction, not to exceed three months, of the first year's
minimum annual purchase amount will be afforded the Customer.
If the Customer fails to submit xxxxxxxx within three months from
the effective date of this Agreement, Customer will be deemed to
have breached this Agreement and SWBT may elect to terminate it
pursuant to Section XX, Termination of Services.
Should the Customer fail to submit xxxxxxxx on a regular and
consistent basis of at least once every week after commencement
of services, Customer will be deemed to have breached this
Agreement and SWBT may elect to terminate pursuant to Section XX,
Termination of Services.
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D. If the Customer has subscribed to B&C Services with SWBT during the
period immediately preceding the execution of this Agreement, revenue
amounts, credits, adjustments, realized uncollectibles and other
relevant data will be used in accordance with this Agreement and in
accord with the former Agreement to make appropriate ongoing
calculations under this Agreement to permit continuing provision of
the Service(s).
X. Xxxxxxxx which are submitted by the Customer to provide bi-monthly,
quarterly, or any other interval of billing greater than monthly will
not be allowed. Any such billing will be considered a breach of this
Agreement and SWBT may elect to terminate the Agreement pursuant to
Section XX, Termination of Services.
F. Billing which may be processed under the terms of this Agreement:
1. Charges for the transport of Message Toll Service (MTS) which
consists of the following messages only:
a) one-plus direct dialed long distance toll calls (DDD)
including international toll calls;
b) appropriately validated operator handled long distance toll
calls for:
1) collect calls,
2) third number calls, or
3) calling card calls;
c) directory assistance calls; and
d) appropriately validated direct dialed long distance toll
calls billed through a calling card.
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Notwithstanding anything contained herein to the contrary, SWBT
may, in its sole opinion, determine that the Customer's xxxxxxxx,
whether for services which are tariffed or not, arise out of a
pay-per-call or other information service offering including but
not limited to international calls. In that event, such xxxxxxxx
will be considered as coming within sections I.F.2 or I.F.3
defined below, and must be submitted to SWBT in compliance with
those sections and in record formats associated with such
xxxxxxxx as designated by SWBT from time to time.
The Customer represents that it will not submit xxxxxxxx as one
or more Message Toll Service charges if the underlying traffic is
other than a traditional long distance service. The Customer
understands that whether or not a charge is tariffed is not to be
considered determinative of whether its xxxxxxxx are for Message
Toll Service.
2. Charges for Pay-Per-Call service (complying with Sections I.G.
and I.H. below). As of January 1, 1998, a service charge per
message billed will apply to the Customer's pay per call services
submitted to SWBT for inclusion on the End User's bills. The
Expanded Message Billing Charge defined in I.F.5 will also apply.
The Customer acknowledges that SWBT will include a consumer
rights notification when the Customer's Pay-Per-Call services are
submitted to SWBT for billing, using SWBT's standardized wording.
The Customer agrees to pay SWBT for one five (5) line marketing
message and one marketing message
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over five (5) lines per xxxx rendered, which contains xxxxxxxx
for Customer's pay-per-call service.
3. Other billing, not included in I.F.1 or I.F.2 above, which is
telecommunications related, but only with specific written
approval by SWBT.
4. With respect to the xxxxxxxx authorized in Xxxxxxx X.X.0, X.X.0,
X.X.0 and I.G.11 herein, the Customer agrees that SWBT may, with
sixty days (60) written notice to the Customer, terminate any or
all such billing without cause or change the terms, conditions or
prices for the provision of such billing.
5. With respect to the xxxxxxxx authorized in Sections X.X.0, X.X.0,
X.X.0 and I.G.11 herein, an Expanded Message Billing Charge, per
message billed, will apply to the Customer's xxxxxxxx submitted
to SWBT for inclusion on End-User's bills. As of January 1,
1998, the Message Xxxx processing per message element will not
apply. Unless otherwise indicated, the following Customer
xxxxxxxx will be subject to the Expanded Message Billing Charge:
a) Billing of voice mail services which are required to be
submitted in EMI Record Types 010117, 010217, 810117 or
810217.
b) Billing of enhanced services which are required to be
submitted in EMI Record Type 010118, 010218, 801118 or
810218.
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c) Xxxxxxxx using EMI Record Types "42XXXX" which may be
utilized for the billing of non-transmission services as
authorized in writing by SWBT. Notwithstanding the
foregoing, any such xxxxxxxx submitted under these record
types, which are classified by SWBT as a traditional toll
service, will not be subject to the Expanded Billing charge.
d) Xxxxxxxx of telegram services which are required to be
submitted in EMI Record Type 010114.
e) Other EMI record types requested by the Customer and agreed
to by SWBT in writing.
f) Xxxxxxxx of Pay per call and/or information services which
are required to be submitted in EMI Record Type 010116.
G. Billing which will not be processed by SWBT under the terms of this
Agreement includes:
1. All xxxxxxxx, other than Message Toll Services (MTS) with
objectionable content as described in Section I.H. below;
2. All xxxxxxxx containing charges which in whole or part relate, or
reasonably give the appearance of relating to goods or services
provided outside the message or references to telephone numbers,
unless agreed to in writing by the Director-Billing and
Collections, Xxx Xxxx Xxxxxx, Xxxx 0-X-0, Xx. Xxxxx, Xxxxxxxx
00000, and/or other such individual(s) as SWBT may
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authorize. Such authorization or notice will be provided to the
Customer in writing;
3. Charges which have been previously billed to the End-User by the
Customer or by a third Party; or new charges to an End-User who
has previously been billed by the Customer or by a third Party,
where the Customer or third Party has been unable to collect
billed charges to the End-User in a timely manner.
4. Charges which, when initially received by SWBT for billing, are
over ninety (90) days old if domestic or one hundred twenty (120)
days old if international;
5. Charges for collect calls associated with pay-per-call
information services xxxxxxxx, including the transport of such
calls:
6. Charges for information regarding credit cards, credit repair or
any information related to credit;
7. Charges for information regarding sweepstakes and/or giveaways;
8. Charges for services which, in SWBT's sole opinion, may result in
nuisance calls to SWBT;
9. Charges which are inconsistent with End-User subscription to
applicable Toll Billing Exceptions (TBE);
10. Charges for services billed to any geographically restricted SWBT
calling card, where the call does not meet the applicable
geographic restriction;
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11. Charges for 800 Services to an originating End-User (caller as
opposed to called Party) except when the End-User has entered
into a written presubscription agreement; and
12. Charges for information provided outside the message.
13. Charges for cellular services and/or charges to NPA/NNX's
assigned to cellular carriers.
14. Charges for services billed to a SWBT WATS End-User account.
15. Charges for services billed to End-Users who subscribe to local
access services through a Local Service Provider other than SWBT.
16. Monthly Fees or fees other than a per-call fee for access to any
service in which any person provides, or purports to provide
audio information or audio entertainment produced or packaged by
such person, whether such access is provided directly or through
a voice mail box service, unless agreed to in writing by SWBT.
17. Fees for services offered on the Internet.
18. Charges for services billed to End-Users who specifically request
not to be billed for Customer services on the SWBT xxxx.
Customer agrees it will not forward such billing to SWBT after
notification from the End-User.
19. Charges for credit card calls placed outside of the
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effective dates of the SWBT End-User account. SWBT Guidelines
and Policys will dictate acceptable dates, if any, before and
after effective date.
20. Charges which consist of combined individual call records and/or
other charges to produce bulk billed services.
H. The Customer agrees, as a condition of SWBT's performance under this
Agreement, that SWBT will not provide B&C Services which SWBT deems
harmful to its image. Customer billing to End-Users will not be
processed by SWBT under this Agreement where such billing is for or is
associated with objectionable content, including but not limited to:
- Services which explicitly or implicitly refer to sexual conduct,
- Services which contain indecent, obscene or profane language,
- Services which allude to bigotry, racism, sexism or other forms
of discrimination,
- Services which, through advertising, content or delivery, are
deceptive, or that may take unfair advantage of minors or the
general public,
- Services which are publicly accessible, multi-party connections
commonly known as "GAB" or "chat" services.
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I. Customer's Responsibility to Submit Correct Xxxxxxxx
It is the continuing responsibility of the Customer to ensure that its
services to be billed by SWBT comply with the foregoing standards set
forth in E, F and G and H above and all statutory, legal and
regulatory requirements. The Customer will render all necessary
assistance to SWBT to enable SWBT to perform a review of the
Customer's messages, as SWBT shall determine is required, in order to
help identify objectionable or improperly formatted messages on a
timely basis. SWBT may adjust End-User charges (with recourse to the
Customer) for any such services billed, or return to the Customer any
such message billing prior to End-User billing. Nothing herein is
intended to allow the Customer to wait for notification from SWBT
before complying with SWBT's billing standards. Prior to sending
messages to SWBT for billing services, the Customer is to take
reasonable steps to screen, from the Customer's message billing files,
all billing to be sent to SWBT in order to comply with said standards.
Upon SWBT's determination that the Customer has forwarded billing for
objectionable or improperly formatted services, SWBT may decline to
process, and may return, any such billing and all other associated
services which are offered over the same call-to-telephone number, or,
to return all xxxxxxxx associated with the responsible service
provider, or delay processing of the Customer's xxxxxxxx to allow the
Customer the time necessary to establish methods, procedures, computer
programming or other reasonable steps to identify and segregate
objectionable or improperly formatted messages from the Customer's
message billing files, to ensure associated charges are not forwarded
to SWBT for billing. The Customer will pay to SWBT, for each file or
partial file returned, a Return of File charge as defined in Schedule
II. This will also apply each time SWBT is required to block an
objectionable number from billing.
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Should the Customer dispute SWBT's determination of the objectionable
nature of the content of a message(s) or its proper format, SWBT may
withhold billing of said messages pending the resolution of the
dispute.
Customer forwarding of billing to SWBT of the type described in this
paragraph I or not authorized by the terms of paragraph F or G above
shall constitute a substantial and material breach of this Agreement,
and SWBT may proceed in accordance with Section XX. A, Termination of
Services.
J. Obligation for Inquiry Support Service.
If Inquiry service is not provided by SWBT, the Customer will provide
a toll-free inquiry number for the End-User and SWBT to utilize in
contacting the Customer. This toll-free number will appear on the
Customer's page of the xxxx. The Customer's Toll Free inquiry number
must be adequately staffed to insure that the Customer is accessible
to End-Users and SWBT during normal business hours.
Upon complaint by an End-User that he/she has been unable to reach the
Customer, through the toll free inquiry number, to inquire about
Customer's services and/or charges that have been billed by SWBT, and
SWBT has reason to believe that the number is not being answered
promptly by an individual capable of addressing the End-User's
concern, SWBT may adjust, with recourse, the End-User's charges
without further attempt to contact the Customer. All such adjustments
will be reflected on SWBT's adjustment report issued to the Customer.
The Customer will be charged a manual adjustment charge for each
adjustment issued by SWBT as defined in Schedule II.
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Customer's repeated failure to be accessible to End-Users for inquiry
constitutes a substantial and material breach of this Agreement and
SWBT may proceed in accordance with Section XX, Termination of
Service.
II. SWBT Services
SWBT shall provide the following services as requested by the Customer:
A. Billing Services:
SWBT will provide Xxxx Processing Service for those accounts for which
SWBT provides local service in its franchised operating territory in
the states of Arkansas, Kansas, Missouri, Oklahoma and Texas. This
Agreement does not contemplate the provision of Xxxx Processing
Service for 1) End User accounts which subscribe to local access
service through a local service provider other than SWBT, 2) End User
accounts outside SWBT's franchised operating territory which subscribe
to local access through SWBT and 3) The provision of a separate xxxx
used solely for the B&C Customer.
1. Xxxx Processing Service consists of the preparation of bills
for message-billed or invoice ready service, and mailing of
statements of the amounts due for End-User services received
from the Customer, and the collection of moneys due from the
End-Users. Xxxx Processing Services include posting of rated
messages and rate elements, rendering of bills, receiving
payments, maintenance of accounts, treatment of accounts,
pre-billing message investigation, each as described in
Exhibit B and C of this Agreement.
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a) SWBT will process rated messages, billable under this
Agreement, received from the Customer for message billing
and render bills to the qualified accounts as defined in
Exhibit B and C of this Agreement.
b) SWBT will purchase the Customer's receivables on message
billed accounts and render End-User bills showing a single
balance due. Accounts receivable will be purchased in a
manner described in Section 3 of Exhibit B and Exhibit C of
this Agreement.
c) SWBT will perform the collection and treatment functions, as
described herein and in Section 2.6, 2.7 and 2.8 of Exhibit
B of this Agreement. The Customer acknowledges that SWBT
exercises judgment in determining when or whether to deny
local service and is not required to deny service at the
earliest possible opportunity. SWBT, at its sole
discretion, may determine at anytime, to adjust Customer
charges with recourse rather than deny local service.
Treatment schedules may vary from state to state.
d) SWBT may collect End-User deposits at its discretion.
2. If ordered by the Customer and agreed to by SWBT, SWBT will
provide Marketing Message Service for the Customer's billed
accounts as defined in Section 2.10.9 of Exhibit B and Exhibit C
of this Agreement.
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3. SWBT will provide billing format changes, when requested by the
Customer, in accordance with SWBT administration standards for
xxxx format. Time and Cost request procedures described in
Section 6 of Exhibit B of this Agreement will be followed in
implementing the change.
4. Where Inquiry Service is ordered by the Customer, SWBT will
perform Inquiry Service for accounts billed by SWBT, as defined
in Section 2.9 of Exhibit B of this Agreement. Inquiry services
for transmission and non-transmission services will be provided
at rates set forth in Schedule II attached hereto. If Inquiry
Services are not ordered initially, and requested at a later
date, a start-up fee will be assessed as described in Schedule
III of this Agreement.
5. SWBT will provide Xxxx Processing Service in an Invoice Billing
Format if ordered by the Customer, pursuant to Exhibit C of this
Agreement.
B. BILLING INFORMATION SERVICES:
1. Billing Information Service is the provision of account and
message detail information to the Customer from SWBT maintained
record systems. The types of billing information services are
described in Exhibit B, Section 2.12 of this Agreement.
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C. Individual Case Basis Services:
1. SWBT offers a variety of Billing and Collection Services on an
individual case basis. A list of these services will be provided
at the Customer's request.
III. Rates and Charges For Services Ordered
An order form, to be separately signed by the Customer, is attached hereto
as Schedule I. SWBT will provide services selected by the Customer on said
Schedule I. Rates and charges applicable to the Billing and Collection
Services covered by this Agreement are attached hereto as Schedule II. It
is understood that applicable tariffs take precedence over any and all
rates and charges contained therein.
For the purposes of billing the Customer for SWBT services provided under
this Agreement, the determination of rates and charges and procedures for
intrastate messages originating and terminating in one state and billed to
an End-User in another state (billing state), will be based on the rates,
charges and procedures of the billing state and subject to that
jurisdiction's regulations.
As to MTS messages, the Customer may elect Standard three (3) year contract
rates or the Volume Discount three (3) year contract rates.
A. Volume Discount
1. In order to qualify for the Volume Discount rates, Customer's
submitting MTS messages must submit to SWBT for billing, 85% or
greater of the Customer's annual MTS messages (both residence and
business) as defined I.F.1, in SWBT's franchise
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territory. The Parties agree that billing other than that listed
in I.F.1 will not be considered in the calculation of the 85%
volume discount requirement. SWBT will afford the Customer up to
5% of the Customer's total billing for the following exclusions.
Such other xxxxxxxx may include, but are not limited to the
following:
a) WATS or WATS like services in which services are sold to the
end user based on blocks of time and individual call detail
is not provided to the end user,
b) National accounts which require a combined xxxx for all
xxxxxxxx which include services provided outside of SWBT's
operating territory, and
c) Specialized billing which can not be accommodated by SWBT's
billing product.
2. A Customer's affiliate or subsidiary will not qualify for the
Volume Discount Prices unless the combined annual residence and
business MTS messages of the Customer and the Customer's
affiliate or subsidiary, sent to SWBT for billing, total 85% or
greater of the total combined annual MTS residence and business
messages of the Customer and the Customer's affiliate or
subsidiary as defined in I.F.1, in SWBT's franchise territory.
3. In addition, MTS xxxxxxxx, which are under a signed contract
prior to March 1, 1997 to be billed by another billing company,
shall not be included for purposes of calculating the Customer's
annual MTS xxxxxxxx. Such MTS billing volumes will be included
for purposes of calculating the Customer's annual MTS xxxxxxxx
when the Customer is no longer contractually required to xxxx
such messages under the current contract. The Customer agrees to
provide SWBT, within thirty (30) days of the date of
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this Agreement, a list of such contracts with the provider of
billing services blanked out, the expiration date of the
contract, and message volumes.
4. For those Customers who have elected the Volume Discount,
should the Customer submit MTS xxxxxxxx on behalf of a third
party (sub-entity), each sub-entity is required to meet the
85% volume requirement. The Customer is responsible for
ensuring that the third party is submitting 85% or greater of
its annual xxxxxxxx through the Customer. SWBT reserves the
right to verify the 85% requirement of the Customer and all
sub-entities as described in Section XXIV, Customer Agency.
Failure of the Customer to ensure compliance of the 85%
requirement for itself or a third party will constitute a
substantial and material breach of this Agreement and SWBT may
proceed in accordance with Section XX.A, Termination of
Services.
Notwithstanding the above, the obligation to meet the 85% volume
requirement will be considered satisfied for each of the
Customer's sub-entity's xxxxxxxx which do not exceed one (1)
million messages submitted to SWBT for billing annually.
IV. Application of Taxes to End-Users when Xxxx Rendering Services are
Ordered by the Customer
A. Tax Reporting
SWBT provides End-User billing services of the Customer's revenues as
a part of the Billing and Collections Service. Unless contrary to
regulatory rule or order, SWBT will not report the Customer's billed
revenues as its own receipt for tax reporting purposes.
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B. Billing of Taxes
1. Unless specifically instructed otherwise in writing by the
Customer, SWBT will apply its existing tax procedures with
respect to the application, billing, recording and collection of
Federal, State or local sales, use, excise, gross receipts or
other taxes or tax-like fees (collectively, "Taxes") imposed on
or with respect to existing Customer services billed by SWBT.
These procedures shall be performed in compliance with the
respective federal, state and local laws. SWBT will comply with
changes in the law affecting its existing tax procedures.
2. The Customer shall have the right, upon written request, to
review SWBT's existing tax procedures and SWBT will supply the
Customer with written documentation regarding the tax procedures
(for example, taxability decision guidelines or tables, and tax
rate tables). Upon completion of its review, the Customer may
request changes through existing Time and Cost procedures defined
in Section 6, Exhibit B, of this Agreement, to SWBT's existing
tax procedures insofar as the Customer's services are concerned.
3. In instances where implementation of a change is not complete by
the agreed upon implementation date established through the Time
& Cost procedure, because of the negligence of SWBT, SWBT agrees
to hold the Customer harmless from and against any liability or
loss resulting from any tax, penalty, interest, additions to tax,
surcharges or other charges payable or incurred by the Customer
as a result of SWBT's negligent delay in implementation. In
addition, SWBT will provide a report to
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the Customer of the Customer's revenue by jurisdiction, together
with a statement of Taxes actually billed in that jurisdiction
and Taxes which would have been billed had implementation
occurred by the effective date. SWBT may back xxxx for any such
tax change.
4. With respect to changes in the law, SWBT will make its best
efforts to make the necessary system modification to implement
the change prior to the effective date. Whenever SWBT estimates
that the time required for it to implement a change in the law
would preclude its implementation by the statutory effective
date, SWBT will apply to the taxing authority for an appropriate
extension of the effective date of a change.
5. Where, through no negligence of SWBT, implementation of a change
is not complete by the statutory effective date, and the Customer
requests back billing to the End-Users, SWBT will undertake back
billing where feasible through existing Time and Cost procedures
defined in Section 6, Exhibit B of this Agreement.
C. Tax Exemption
1. SWBT, in its performance of services herein, will maintain
End-User provided exemption certificates. Unless the Customer
requests otherwise, SWBT will use the End-User provided
exemption certificates as a basis for exempting End-Users from
Taxes on the Customer's services. The Customer understands
that SWBT makes no warranty as to the validity of the End-User
certificates and that the Customer relies upon SWBT's use of
the certificates at the Customer's own risk.
-24-
2. The Customer may review information relating to an End-User's
exemption status and request through the Time & Cost process that
SWBT reverse the exempt status for purposes of the Customer's
services if the Customer provides SWBT written instructions to
make the status change.
3. SWBT will be liable for any audit assessments and hold harmless
and indemnify the Customer if the exemption status of an End-User
is not reversed in accordance with instructions issued by the
Customer. To the extent SWBT complies with the Customer's
instructions, the Customer will hold harmless and indemnify SWBT
for any liability, loss, or litigation cost, expense or fees
(including reasonable attorney's fees) arising out of or relating
to the tax exempt status of an End-User aggrieved by SWBT's
compliance with the Customer's instructions.
D. Filing of Tax Returns
The Customer shall file all returns for Taxes imposed on or with
respect to the Customer's services and pay or remit all such Taxes and
other items and any applicable interest or penalties. SWBT shall
furnish to the Customer, on a timely basis, all information in SWBT's
possession reasonably necessary for the Customer to file its tax
returns. The timing for, and format of, such information shall be as
specified in Section 5 of Exhibit B of this Agreement.
E. Tax Indemnity
The Customer agrees to indemnify and hold SWBT harmless from any
liability or loss resulting from any tax, penalty, interest, additions
to
-25-
tax, surcharges or other charges, expenses, costs (including
reasonable attorney fees) and fees payable or incurred by SWBT as a
result of:
1. The delay or failure of the Customer (not attributable to any
negligent act or omission of SWBT) to pay any Tax or such other
item or file any return or other information as required by law
or this Agreement; or
2. SWBT complying with this Agreement or with any determination or
direction by or advice of the Customer or using information
provided by the Customer in performing any tax related service.
The indemnity payable herein shall be payable in all events and
without regard to any determination that SWBT is the Party obligated
to collect and remit such taxes or file the tax returns. Such
indemnity shall be provided to SWBT on an after-tax basis.
F. TAX LIABILITY
SWBT agrees to pay and hold the Customer harmless from and against any
liability or loss resulting from tax, penalties, interest, additions
to tax, surcharges, or other charges or payable expenses incurred by
the Customer solely as a result of:
1. The willful or negligent failure of SWBT to provide the Customer
accurate information, as described in Section IV.C. and D, above,
with which to file its tax returns and remit payment; or
-26-
2. The willful or negligent failure of SWBT to accurately calculate
and xxxx appropriate taxes, unless such calculations and billing
were done upon the Customer's direction or advice.
Such indemnity shall be provided to the Customer on an after-tax
basis.
G. ADDITIONAL TAXES
Should any federal, state or local jurisdiction determine that
additional sales, use, or other taxes (including interest, penalties
and surcharges thereon) are due from SWBT as a result of SWBT's
performance of any obligation under this Agreement, and when said
taxes have not been paid by the Customer, SWBT will so advise the
Customer. The Customer agrees to be liable for any such tax,
interest, penalties and surcharge, but retains the right to protest
the assessment.
If the Customer disagrees with any assessment of taxes due from SWBT
or disagrees with an assessment of any additional tax, penalty,
surcharge and interest due from SWBT as a result of SWBT's performance
of any obligation under this Agreement, the Customer may, at its
expense (including payment of any such assessment, if required, prior
to final resolution of the issue), seek a ruling as to the
applicability 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. SWBT shall, when requested by the Customer and
at the Customer's expense, cooperate or participate with the Customer
in any such proceeding, protest or legal challenge.
-27-
V. Purchase of Accounts Receivable
SWBT will purchase the Customer's accounts receivable that arise from
Customer's charges included in bills rendered by SWBT. SWBT's purchase of
the Customer's accounts receivable shall be with recourse (debit
uncollected charges back to the Customer). The purchase of the Customer's
accounts receivable will be as set forth in Section 3, Exhibit B of this
Agreement.
VI. Service Center Procedural Guidelines
SWBT, in its performance under this Agreement, will apply its RSC/BSC
guidelines which are used by SWBT in the conduct of its business. A copy
of the current guidelines has been provided to the Customer, the receipt of
which is hereby acknowledged. The Customer agrees that these guidelines
may be modified by SWBT from time to time in the normal course of its
business. Should these modifications substantially change these
procedures, and such changes alter this Agreement to such an extent that in
the reasonable judgment of the Customer it does not allow for the
continuation of billing and collection services as contemplated herein, the
Customer shall have the right to immediately terminate this Agreement
without liability by providing written notice to SWBT, addressed as
provided in Section XII detailing the reasons it believes the Agreement is
substantially changed. If the Customer elects to terminate this Agreement
as provided in this Section VI, written notice must be provided to SWBT
within thirty (30) business days of the date SWBT notifies the Customer of
the changes; provided, however the Customer shall not unreasonably
exercise this right for routine administrative or procedural changes.
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VII. Dispute Resolutions and Audits
A. Dispute Resolution. In the event of disputes that may arise under
this Agreement or the Tariff(s), the Parties shall:
1. Discuss and negotiate the issues between the Parties' authorized
representatives, with informal escalation within the Parties'
organizations as necessary to pursue and achieve resolution as
expeditiously as possible.
2. In the event that either Party determines that the informal
discussion and escalation process described in Subsection A(1),
above, is not achieving resolution, or is not proceeding
expeditiously, either Party may submit the issue for resolution
to an Inter-Company Review Board consisting of one representative
from each Company at the Vice-Presidential level (or at such
lower level as each Party's Vice President may delegate). The
Inter-Company Review Board may consider any material submitted to
it by either Party, which material shall be submitted within
twenty (20) business days of a Party's notification that it
desires resolution by the Board.
Thereupon, and within ten (10) additional work days, the
Inter-Company Review Board shall state in writing to the Parties
its resolution of the dispute.
B. Audits and Examinations
An audit is a review of the accounting and billing records of the
other Party directly relating to the Billing and Collection
Services purchased under this Agreement for
-29-
the purpose of verifying the accuracy and completeness of the
records and compliance with the terms of this Agreement.
An Examination is a limited review of the accounting and billing
records of the other Party directly relating to one specific
component of the Billing and Collection Services purchased under
this Agreement for the purpose of verifying the accuracy and
completeness of the records and compliance with the terms of this
Agreement as to that component. An examination is limited to one
SWBT XXX or one data center.
1. Customer Audits and Examinations
The Customer will have the right to perform one (1) Audit during
the term of this Agreement. In addition, the Customer will have
the right to perform one (1) Examination annually if desired.
a) Auditable Components
During an Audit or Examination, the Customer, or its
authorized representative will have the right to review,
under recognized accounting practices, SWBT systems that
perform Billing and Collections functions and SWBT's
accounting and billing records which contain information
bearing upon the following auditable components: (1) the
amounts being billed to the Customer's end user by SWBT, as
part of its provision of Billing and Collection Services, or
(2) the charges to the
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Customer for services provided by SWBT pursuant to this
Agreement and 3) the amounts identified as the Customer's
for unbillables, uncollectibles, taxes and adjustments. The
Customer does not have the right to audit or examine SWBT's
methods, practices or procedures relating to these
components. Specifically, the Customer does not have the
right to audit or examine SWBT's decision and the time frame
within which such decision is made to issue or not issue an
adjustment, to deny or not deny local service for the non
payment of the Customer's charges, to write off a Customer's
charge as uncollectible or unbillable or to pursue or not
pursue collection of the Customer's charges.
2. SWBT Audits and Examinations
SWBT or its authorized representative will have the right to
perform one (1) Audit during the term of this Agreement and one
(1) Examination annually of the Customer.
a) Auditable Components
During an Audit or Examination SWBT, or its authorized
representative will have the right to review such source
documents, systems, records, and procedures as may under
recognized accounting practices contain information bearing
upon 1) the verification of data substantiating that SWBT
has in fact been provided with annual percentages of the
Customer's xxxxxxxx as set forth in Schedule I of this
Principal Agreement or 2) that the Customer's xxxxxxxx and
-31-
performance obligations with SWBT comply with the terms of
this Agreement.
3. Terms and Conditions
The Audits or Examinations will be conducted by the Customer's or
SWBT's authorized representative, at a location mutually agreed
upon by both Parties. Audits and Examinations will be conducted
during normal business hours.
4. Expenses
Each party will bear its own expenses in connection with
performing an Audit or Examination. However, special data
extractions and any requested extraction of commingled
information will be paid for by the requesting party. For
purposes of this subsection, a "special data extraction" shall
mean the creation of an output record, from existing data files,
that is not normally created (by the party being
audited/examined) from software programs that are currently
resident of the production program library. In the event that
the Customer requests SWBT to develop an Audit or Examination
type software program(s), the cost of such program development
and CPU time will be paid by the Customer at rates and charges as
specified in Schedule II, attached hereto. If SWBT is the
requesting party for a special data extraction from the Customer,
the Customer's necessary program development and CPU time will be
paid by SWBT at rates equal to those specified in Schedule II.
In either event, the party developing the software will provide
the other party all documentation of said program(s) at the
conclusion of the Audit
-32-
or Examination. The party receiving the program(s) may retain same
for use in later Audits or Examinations; however, any necessary
modification will involve additional cost to the requesting party.
5. Confidential Information
a) Any authorized representative of either party engaged in an
Audit or Examination may sign a joint non-disclosure agreement
with the Customer and SWBT.
b) All information received or reviewed by either party or
authorized representative is considered proprietary and
subject to Exhibit A. Its use will be limited to:
- Performance of the Audit or Examination;
- Preparation of any report(s) for the sole purpose of
providing Audit or Examination results, and the resolution
of its findings, to the Customer, SWBT or their respective
authorized representative;
- Preparation and resolution of claims; and
- No other purpose unless agreed to in writing by the Customer
and SWBT.
6. Written Notification and Time Frame Requirements
a) The party requesting an Audit or Examination will provide
written notification of its intent to perform an Audit or
Examination to the other party at a minimum of forty-five (45)
calendar days before the desired start date. Such notice shall
be directed in accordance with
- 33 -
Section XII of this Agreement. This written notification must
include, at a minimum:
- The specific subject of the Audit or Examination;
- The start date of the Audit or Examination;
- The scope of the Audit or Examination;
- The requested location(s) for performing on-site activities.
Location(s) will be mutually agreed upon by the parties with
approval of a location not to be unreasonably denied; and
- The names, addresses and telephone numbers of
representatives from the requesting party expected to
conduct the Audit or Examination.
b) Within fifteen (15) calendar days of receipt of the
above-described notification, the party receiving same shall
acknowledge its receipt and may at that time, for good and
reasonable cause, change the Audit or Examination start date to
a mutually agreed-upon date. No more than one (1) Audit or
Examination of a party may take place at one time, if the
simultaneous audits or examinations would involve the same
audited party's functional group(s).
c) Within forty-five (45) calendar days of an Audit or
Examination's conclusion, the party conducting same shall
provide to the other party a final report, in writing,
identifying any deficiencies found and documenting any claims
associated with the Audit or Examination. In the event this
time frame cannot be met, the party conducting the Audit or
Examination will so advise the other party
- 34 -
and the two Parties will mutually agree upon an extension.
d) Upon receipt of a final report, the audited/examined party will
investigate all findings and claims. After investigation, the
audited/examined party will provide a response, in writing,
within forty-five (45) calendar days of receipt of the final
report. In the event this time frame cannot be met, the two
parties will mutually agree upon an extension.
This report will detail the audited/examined party's
investigative actions, and may resolve that one of the
following is true: (1) no settlement is due, (2) a settlement
is due to the Customer from SWBT or (3) a settlement is due to
SWBT from the Customer.
e) The party conducting the Audit or Examination will either
concur or object to the response within forty-five (45)
calendar days of receipt of the other's written response.
Should settlement be agreed upon, payment will be made in
accordance with Exhibit B, Section 3 of this Agreement.
VIII. Liability and Indemnification
A. Limitation of Liability.
Except as otherwise provided in this Agreement, each Party's
liability to the other (as distinct from a Party's obligation to pay
for services provide pursuant to this Agreement) for any loss, cost,
claim, injury,
- 35 -
liability, or expense, including reasonable attorneys' fees,
relating to or arising out of any negligent act or omission in its
performance of this Agreement (not involving knowing and willful
misconduct) shall be limited to the amount of direct damage actually
incurred. A Party shall not be liable for its inability to meet the
terms of this Agreement where such inability is caused by failure
of the other Party to provide, after receipt of a written request,
the information necessary to allow the first Party to comply with
the obligations stated herein. Absent gross negligence or knowing
and willful misconduct, neither Party shall be liable to the other
for any indirect, special, or consequential damage of any kind
whatsoever. The Customer's direct damages consist of two elements
only: (a) in the case of loss of data or information to be supplied
to the Customer, SWBT's charges for such data or information, and
(b) to the extent that SWBT's act or omission precludes any possible
rendition of End-User bills, the net revenue which may have been
due the Customer for services defined in I.F.1, I.F.2, and I.F.3
for this Agreement but for SWBT's act or omission, as calculated in
accordance with Exhibit B, Section 2.1.6. The Parties agree to use
their best efforts to mitigate damages.
B. Indemnification.
1. Except as otherwise provided in this Agreement, without regard
to whether services are provided under Tariff or contract, each
Party (the "Indemnifying Party") will indemnify and hold harmless
the other Party ("Indemnified Party") from and against any loss,
cost, claim, liability, damage or expense (including reasonable
attorney's fees) to third Parties, relating to or arising out of
negligence or misconduct by the Indemnifying Party, its
employees, agents, or contractors, and associated with this
Agreement. In addition, the Indemnifying
- 36 -
Party will defend any action or suit brought by a third Party
against the Indemnified Party for any loss, cost, claim,
liability, damage or expense relating to or arising out of the
negligence or misconduct of or by the Indemnifying Party, its
employees, agents, or contractors, under this Agreement.
The Indemnified Party will notify the Indemnifying Party
promptly in writing of any written claims, lawsuits, or demand
by third Parties for which the Indemnified Party alleges that
the Indemnifying Party is responsible under this section and
tender the defense of such claim, lawsuit or demand to the
Indemnifying Party. The Indemnified Party also will cooperate
in every reasonable manner with the defense or settlement of
such claim, demand or lawsuit. The Indemnifying Party will not
be liable under this subparagraph for settlements by the
Indemnified Party of any claim, demand or lawsuit unless the
Indemnifying Party has approved the settlement in advance or
unless the defense of the claim, demand or lawsuit has been
tendered to the Indemnifying Party in writing and the
Indemnifying Party has failed promptly to undertake the defense.
(For End-User Service Denial Liability see Section XXII; For
Customer Agency Billing Liability see Section XXIV.)
2. Notwithstanding any other provision of this Section VIII, the
parties acknowledge that SWBT has no knowledge of the validity
of message payment obligations (billing charges) sent to SWBT
for billing and collections under this Agreement, and that SWBT
therefore strictly relies upon the Customer to forward only
correct billing charges that can be, if necessary, substantiated
in a court of law.
- 37 -
Upon request, the Customer will provide to SWBT all evidence
needed to sustain billing charges challenged by an End-User,
and SWBT may adjust said charges with recourse if the Customer
fails to do so, or if, in SWBT's sole opinion, the circumstances
involved in the dispute, should be handled between the Customer
and the End-User. The Customer certifies, when forwarding
billing charges to SWBT, that said charges are true and correct,
and accurately reflect proper charges legally owed by the billed
Party (End-User). This Customer certification of validity shall
apply to all billing charges forwarded to SWBT under this
Agreement by the Customer from whatever source. Should SWBT
incur liability for billing and collection of any billing
charges forwarded by the Customer, or for termination of an
End-User's local phone service as part of said collection, or
for defamation or libel or injury to credit or otherwise incurs
liability arising from or resulting from SWBT's performance of
its obligations under this Agreement, the Customer will defend,
indemnify, and hold harmless SWBT for any loss, cost, claim,
damage or expense (including reasonable attorney's fees) arising
from such billing and collection.
3. INFRINGEMENT: The Customer shall indemnify SWBT for any loss,
damage, expense (including reasonable attorney's fees) or
liability that may result by reason of any infringement or
claim of infringement of any patent, trademark, copyright, trade
secret or other proprietary interest based upon SWBT's provision
of Services provided pursuant to this Agreement. However, where
such infringement or claim arises solely from the Customer's
adherence to SWBT's written instructions or
- 38 -
directions, SWBT shall so indemnify the Customer for such
infringement or claim of infringement.
Each Party shall defend or settle, at its own expense, any
action or suit against the other for which it is responsible
under this clause. Each Party shall notify the other promptly
of any claim of infringement for which the other is responsible,
and shall cooperate with the other in every reasonable way to
facilitate the defense of any such claim.
IX. Proprietary Information
Attached to this Agreement as Exhibit A is the Parties' understanding
with respect to Proprietary Information.
X. Amendments: Waivers
This Agreement or any part thereof may be modified by written amendment
signed by both Parties. No amendment or waiver of any provision 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 amendment, waiver or consent is claimed. In
addition, 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.
XI. Assignment
Any assignment, in whole or part, by either Party, other than an
assignment by SWBT to an affiliate, of any right, obligation, or duty, or
of any other interest hereunder, without the written consent of the other
Party shall be
- 39 -
void. Such written consent shall not be unreasonably withheld or
delayed. All obligations and duties of a Party to this Agreement shall
be binding on all successors in interest and assigns of such Party.
XII. Notice and Demands
Except as otherwise provided under this Agreement, all notices,
demands, or requests which may be given by a Party to the other Party
shall be in writing and shall be deemed to have been duly given 1) on
the date delivered in person or 2) on the date of the return receipt for
those sent postage prepaid, in the United States mail via Certified
Mail, return receipt requested; or, 3) on the date transmitted
electronically provided that the receiving machine delivers confirmation
to the sender and receipt is verified through a phone call. If personal
delivery is selected as the method of giving notice under this section,
a receipt of such delivery shall be obtained. Mailing addresses for
notices shall be as indicated on the Customer's current Implementation
Forms. The Parties will officially indicate their electronic notice name
and address if this method of notification will be employed.
XIII. Third-Party Beneficiaries
This Agreement shall not provide any non-party with any remedy, claim,
liability, reimbursement, claim of action or other right.
XIV. Governing Law
This Agreement shall be governed by the laws of the State of Missouri.
- 40 -
XV. Force Majeure
Neither Party shall be held responsible for any delay or failure in
performance of any part of this Agreement to the extent that such delay
or failure is caused by fire, flood, epidemic, explosion, war, terrorist
acts, riots, insurrections, explosions, earthquakes, nuclear accidents,
power blackouts, strike, embargo, government requirement, civil or
military authorities, Act of God or by the public enemy, or other
causes beyond their reasonable control. If any force majeure
condition occurs, the Party delayed or unable to perform shall give
immediate written notice to the other Party. During the pendency of
the force majeure condition the duties of the Parties under this
Agreement shall be abated and shall resume without liability
thereafter.
XVI. Entire Agreement
This Agreement, together with the Schedules, Exhibits, Implementation
Forms and Guidelines referenced herein, and Amendments, if any,
attached hereto, constitute the entire understanding between the
Parties and supersedes all prior understandings, oral or written
presentations, statements, negotiations, proposals and undertakings
with respect to the subject matter hereof.
XVII. Severability
Nothing in this Agreement is intended to obligate either Party to
perform any act which is illegal or which is contrary to regulatory
rule or order, or to public policy. If any provision of this
Agreement is held invalid, unenforceable or void, the remainder of
the Agreement shall continue in full force and effect, provided the
remainder allows for implementation or continuation of Billing and
Collection Services essentially as contemplated herein.
- 41 -
XVIII. Executed in Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall
together constitute but one and the same document.
XIX. Headings
The headings and numbering of Sections and Paragraphs in this
Agreement are for convenience and shall not be construed to define or
limit any of the terms herein or affect the meanings or
interpretation of this Agreement.
XX. Termination of Service
A. If either Party fails to perform under the terms of this
Agreement and remains in substantial and material non-compliance
after receipt of thirty (30) days written notice of
non-compliance from the non-breaching Party, this Agreement is
terminated. Notwithstanding the foregoing, any breach of sections
I.F., I.G. and I.H. defined herein must be cured within ten days.
Upon termination, minimum annual purchase of service charges for
the current year and all remaining years will not be applicable
if SWBT is the breaching Party. If the Customer is the breaching
Party, the Customer will be liable for any short fall in the
annual minimum purchase of service revenue guarantee prorated to
the date of written notice of non-compliance from SWBT, and will
be due and payable by the Customer to SWBT at the time of
termination of the Agreement.
Should the Customer breach this Agreement due to a violation of
the 85% volume requirement, all services which have been provided
to the
- 42 -
Customer under this Agreement will be recalculated at the
Standard 3 year contract rates and the Customer will
immediately pay SWBT the difference between the volume
discount rates and the standard rates.
B. Notwithstanding Paragraph A. above, either Party may at its sole
discretion, and with eight (8) months' notification to the
other Party, terminate this Agreement in its entirety.
1. In the event that SWBT elects to terminate this Agreement
under this Paragraph B, Customer's minimum annual
purchase of services for the current year and all
remaining contract years will not be applicable.
2. Should the Customer elect to terminate this Agreement
under this Paragraph B prior to the completion of the
term, all services which have been provided to the
Customer under this Agreement as of the date of
termination will be charged accordingly. In addition
the Customer will immediately pay any short fall in the
minimum purchase of service for the current year of the
contract prorated up through the month in which
termination completes. The terminating Customer will
not be responsible for minimum purchase of services
in subsequent months and years.
XXI. Certification Requirements
The Customer states that it has obtained all necessary
jurisdictional certification required in those jurisdictions in
which the Customer has ordered Billing and Collection service(s).
The Customer certifies that, if the Customer should forward to SWBT
any billing originating from a third Party (whether the Customer has
purchased said billing or is acting as a billing
- 43 -
agent), the Customer will insure that the originating service
provider has obtained all required certification for those
jurisdictions in which said End-User billing will be processed. The
Customer will provide evidence of all such certifications at the
request of SWBT. SWBT is not required to process any Customer
billing or billing that is forwarded on behalf of a third party if the
Customer or third Party has not obtained proper certification.
The Customer will provide upon SWBT's request, the name, address and
contact number of all originating service providers.
Failure of the Customer to obtain or retain proper jurisdictional
certification may result in service termination as described in
Section XX. A. of this Agreement.
XXII. End-User Service Denial
This Agreement does not obligate SWBT to terminate End-User services
for non-payment. Upon completion of SWBT collection procedures for
non-payment of either transmission or non-transmission charges, SWBT
may adjust, at its sole discretion, such charges with recourse to
the Customer. In addition, the parties acknowledge that changes in
applicable laws and/or regulations may prevent SWBT from terminating
or threatening to terminate End User service for non-payment of any
Customer charges, and that such actions may require changes to SWBT
procedures.
XXIII. Term
The term of this Agreement is three (3) years. Billing and
Collection services will be extended on a month-to-month basis
thereafter. Billing and Collection services shall not be extended if
either Party gives notice, no less than ninety (90) days prior to
the completion of the term. If such notice is
- 44 -
not given, the terms and conditions under which Billing and
Collection services are provided to other Customers at that time,
including applicable contract rates and minimum purchase of service
charges available at that time to other Customers, will be applied to
this Agreement.
XXIV. Customer Agency
The Customer will forward only its billing for SWBT processing unless
the Customer notifies SWBT to the contrary in writing. For the
purposes of this paragraph, should the Customer forward billing of a
third Party, such billing will be considered the Customer's billing.
Should a Customer act as an agent for a third Party and forward said
billing to SWBT or should the Customer purchase billing from a third
Party and forward said billing to SWBT, the Customer shall remain
solely responsible to such third parties. The Customer agrees to
protect, indemnify, and hold harmless SWBT for any and all claims by
third parties regarding such third parties' billing forwarded to SWBT
by the Customer.
Customer further agrees to impose on the third Party the duty to
adhere to all applicable terms and conditions of this Agreement
regarding billing that will be processed by SWBT as well as SWBT's
right to audit xxxxxxxx submitted by a third Party to ensure that the
xxxxxxxx comply with the terms of this Agreement. Customer will also
ensure the Third Party agrees that SWBT or its authorized
representative(s) of SWBT shall have the right to review the third
Party's source documents, systems, records, and procedures in
performing such an audit. Such audit does not constitute a SWBT audit
or Examination of the Customer. At SWBT's request, Customer will
furnish documented evidence of Customer's compliance that such
applicable terms and conditions of this Agreement have been imposed
by Customer on the third party and that the third Party agrees SWBT or
SWBT's authorized
- 45 -
representative may review the third Party's source documents,
systems, records and procedures.
Should the Customer elect the volume discount pricing plan, the
Customer shall remain solely responsible for ensuring that each
sub-entity that they are forwarding billing on behalf of, complies
with the volume discount requirement of 85% of that sub-entity's
xxxxxxxx.
Customers that retain a third Party, other than SWBT, to provide
their End-User inquiry, authorize such third parties to represent
them and to act in their stead in the performance of inquiry and
collection activities associated with the Customer's xxxxxxxx.
XXV. Publicity
Neither Party shall publish or use advertising, sales promotions,
press releases, or matters wherein the other Party's name or marks
are mentioned or language from which association with the other
Party's name or xxxx therewith may be inferred or implied without the
other Party's prior written approval.
XXVI. Compliance with Law
Both Parties agree that they will comply with all applicable federal,
state and local laws, ordinances, regulations and codes with which
they are obligated to comply in the conduct of their business
including the procurement of required permits and certificates,
specifically, both parties will comply with the provisions of the
Fair Labor Standards Act of 1983, as amended. Parties further agree
not to discriminate against any employee or applicant for employment
because of race, color, religion, sex, national origin, age or
disability.
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XXVII. Right to Withhold
Notwithstanding anything contained herein to the contrary, if the
financial condition of the Customer becomes impaired and/or the
Customer fails to pay its obligations to SWBT as they become due, the
Customer agrees SWBT shall entitled to withhold any funds, which
otherwise might be due, or become due to the Customer hereunder, to
satisfy any unpaid obligation of the Customer to SWBT, including, but
not limited to, any amounts due under this Agreement, any access
charges due SWBT, any amounts due to SWBT under applicable tariff, or
otherwise.
XXVIII. Independent Contractors
It is expressly understood and acknowledged that the Parties are
entering into this Agreement as independent contractors.
XXIX. Remedies Cumulative
All remedies are cumulative and are not exclusive of other remedies
to which the injured Party may be entitled at law or equity.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first written above.
SOUTHWESTERN XXXX XXXXX, Inc.
TELEPHONE COMPANY ------------------------------
(Name of Customer)
By /s/ Xxxxx X. Xxxx By /s/ Xxxxxxx Avignon
-------------------------------- ----------------------------
(Signature) (Signature)
Name Xxxxx X. Xxxx Name Xxxxxxx Avignon
------------------------------ -------------------------
(Printed) (Printed)
Title General Manager-Access & Title Chairman, C.E.O.
--------------------------- ------------------------
Interconnection Marketing
Date 11/21/97 Date 11/11/97
----------------------------- --------------------------
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