EXHIBIT 10.20
BILLING AND MIS SERVICES AGREEMENT
THIS AGREEMENT dated as of the 1st day of July, 1997, by and between
XXXXXXXXX HOLDINGS, INC., a Delaware corporation ("Xxxxxxxxx") and FACILICOM
INTERNATIONAL, L.L.C. ("FaciliCom").
WHEREAS, FaciliCom believes that billing customers timely and accurately
and monitoring and managing network traffic profitability, accurate operation of
a management information system ("MIS") is vital and contracting with Xxxxxxxxx
for its pre-established customized systems will give FaciliCom a strategic
advantage over its competitors; and
WHEREAS, Xxxxxxxxx desires to accommodate FaciliCom with its billing and
MIS services by means of a developed customized system to provide various
services.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound hereby, the parties agree as follows:
1. Services. Xxxxxxxxx, or any one or more of its affiliates, shall
provide to FaciliCom such services, including, but not limited to, call
collection, processing, rating and reporting. In addition, Xxxxxxxxx will also
provide FaciliCom with access to experienced MIS professionals and programmers
on an as-needed basis to further customize and support FaciliCom's growing and
changing needs together with data center services which include daily back-ups,
provision for disaster recovery, maintenance of hardware, operations support,
etc.
2. Cost. Xxxxxxxxx shall charge for these services as follows:
Professional Services - Services provided by Xxxxxxxxx'x IT
programmers, specialists or other professionals will be billed at the following
hourly rates:
Programmers/Specialists $50.00 per hour
IT Management $75.00 per hour
Data Center Management, Operations & Hardware - A monthly charge based
upon FaciliCom's actual processing activity. Processing activity is measured in
milliseconds, and the charge is $40.00 per megasecond. The charge includes
costs for the AS/400 hardware and operating system software, operations support
personnel and management, data center facilities (office space, utilities,
insurance and the like), off-site storage and back-up facilities, and other
normal data center costs.
AS/400 Disk Storage - A monthly charge of $25.00 per gigabyte will be
assessed based upon FaciliCom's disk capacity requirements. Actual disk usage
will be measured each month. This actual usage will be multiplied by 1.4 to
compute the total disk capacity requirement.
Software Applications - Direct purchases of software by FaciliCom will be
billed directly to FaciliCom based upon actual cost. Joint use applications
will be billed on a monthly basis using a predetermined schedule of charges.
Direct Hardware - Direct purchases of hardware by FaciliCom for use outside
Xxxxxxxxx'x data center will be billed directly to FaciliCom based upon actual
cost.
Telecommunication Facilities - Use of telecommunication facilities will be
billed to FaciliCom based on the actual facilities used by FaciliCom. Any joint
use of the facilities will be allocated to the user company.
Xxxxxxxxx shall have the right to increase the cost of its services after
giving FaciliCom at least thirty (30) days written notice.
3. Term. The term of this Agreement shall expire on September 30, 2002.
Either party shall have the right to terminate this Agreement during the term
upon giving one hundred eighty (180) days prior written notice to the other
party. In the event of breach of any provision of this Agreement by either
party, the non-defaulting party shall give the defaulting party written notice,
and the defaulting party shall cure the breach within one hundred eighty (180)
calendar days of such notice. If the defaulting party does not cure such breach,
the non-defaulting party may, at its sole option, terminate this Agreement and
shall be entitled to pursue all available remedies for such breach.
4. Billing for Services Rendered.
4.1 Xxxxxxxxx shall xxxx FaciliCom for services rendered in accordance
with this Agreement on a monthly basis. Each invoice shall be for a period of
approximately thirty (30) calender days, depending upon data processing cutoff
dates used by Xxxxxxxxx.
4.2 If FaciliCom fails to pay or file a claim for an amount by the payment
due date appearing on the Xxxxxxxxx invoice, late payment charges will accrue on
the unpaid balance at the less of:
The highest interest rate (in decimal value) allowed by state law or
twelve percent (12%) per annum simple interest for the number of
calendar days form the day following the payment due date up to and
including the date payment is actually made.
4.3 The payment due date for each service invoice shall be the first
business day that is not less than thirty (30) calendar days following the
invoice preparation date. Xxxxxxxxx shall use its best efforts to mail the
invoice on the invoice preparation date.
4.4 Xxxxxxxxx shall have the right to adjust the invoices sent to
FaciliCom up to one (1) year following FaciliCom's receipt of the invoices in
the event Xxxxxxxxx determines that an error in the cost allocation has been
made.
5. Data Retention. All data associated with the provision and receipt
of service(s) pursuant to this Agreement shall be maintained for the greater of
(a) the retention time required by law or regulation for maintaining
information, or (b) two (2) years.
6. Limitation of Liability.
6.1 Each party's liability to the other for any loss, cost, claim,
injury, liability or expense, including reasonable attorney fees, relating to or
arising out of any negligent act or omission in its performance of obligations
arising out of this Agreement, shall be limited to the amount of direct damage
actually incurred. With respect to claims arising out of this Agreement, either
party's cumulative liability, whether in contract, tort or otherwise, shall not
exceed the total charges applicable to the billing and collection services
rendered under this Agreement.
6.2 In no event shall either party be liable to the other for any
indirect, special, or consequential damage of any kind whatsoever.
7. Force Majeure. Neither party shall be held liable for any delay or
failure in performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence, such as acts of God, acts of civil
or military authority, government regulations, embargoes, epidemics, war,
terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, strikes, power blackouts, unusually severe weather
conditions, failure to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation on common
carriers.
8. Assignment. The parties agree not assign or transfer any interest in
this Agreement without the prior written approval of the other party.
9. Notices. All notices required under this Agreement shall be in
writing and shall be sent by facsimile and regular mail to Xxxxxxxxx Holdings,
Inc., One Xxxxxxxxx Place, Butler, Pennsylvania 16001 and to FaciliCom
International, L.L.C., 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, XX
00000 or to any other address designated by such party.
10. Amendments. No change, modification or amendment of any of the
terms, provisions or conditions of this Agreement shall be effective unless made
in writing and executed by the parties hereto or their successors and assigns.
11. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, personal
representatives, heirs and assigns.
12. Governing Law. This Agreement is executed in and shall be
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all negotiations, preliminary
agreements and all prior and contemporaneous discussions and understandings of
the parties in connection with the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first written above.
ATTEST: XXXXXXXXX HOLDINGS, INC.
By:/s/ By: /s/Xxxxx Capiletti
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ATTEST: FACILICOM INTERNATIONAL, L.L.C.
By: /s/Xxxxx Xxxx By:/s/
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