ONE PLUS
BILLING AND INFORMATION MANAGEMENT
SERVICES AGREEMENT
This One Plus Billing and Information Management Services Agreement (the
"Agreement") is entered into this 8th day of September, 1998, by and between
Billing Concepts, Inc., a Delaware corporation, dba U.S. Billing
(hereinafter "USBI") and GenX Communication LLC dba Preferred Disc. Plan,
a/an Delaware corporation ("Customer").
WITNESSETH:
WHEREAS, Customer is engaged in the business of providing certain
pre-subscribed telecommunication services for which Customer desires to xxxx
and collect for these services through the Local Exchange Carriers (LECs) or
Competitive Local Exchange Carriers (CLECs) [hereinafter collectively
referred to as "LECs"]; and
WHEREAS, USBI has entered into billing and collection agreements with
certain LECs which allow USBI to provide billing and information management
services for Qualifying Message Telephone Service ("MTS") calls on behalf of
USBI's customers; and
WHEREAS, USBI has the ability through its computer hardware, computer
software and accounting systems to provide billing and information
management services for Qualifying MTS calls for Customer, and Customer
desires to obtain such billing and information management services from USBI
on the terms and conditions contained herein:
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants
and agreements contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, do hereby agree
as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth below, unless the context otherwise requires:
Bad Debt: See Uncollectible Amounts and Written-Off Accounts.
Billing Telephone Company (BTC): See Local Exchange Carrier and Competitive
Local Exchange Carrier.
BOC: Xxxx Operating Company.
Business Day: A day other than Saturday and Sunday on which commercial banks
are open in the State of Texas.
Claim: Claim, loss, liability, damage, cost, correction or expense, whether
ordinary, special, consequential or otherwise.
Casual Operator Services (OS) Telephone Traffic: Casual operator assisted
telephone calls that originate from locations where Customer is the
pre-subscribed direct dial IXC or reseller of direct dial IXC services and
the OS telephone calls are billed: (I) to the originating telephone number,
(ii) collect to the terminating telephone number, (iii) to a third telephone
number other than the originating or terminating telephone number, or (iv)
to a LEC or IXC calling card.
Competitive Local Exchange Carrier: Any competitive or alternate local
access telephone service provider, or reseller of LEC local access services,
with which USBI has entered into a billing and collection agreement.
Confidential Information: See Section S.
EMI Billing Record: Computer readable records containing the billing data
for Customer's Qualifying MTS calls, in the Bellcore EMI (exchange message
interface) format, for which each LEC has the capability of processing
through its billing and collection systems.
End User: A natural person, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture,
governmental agency or instrumentality, or other entity that subscribes to
or uses Customer's telecommunication services.
F.C.C.: The Federal Communications Commission.
Foreign Intrastate Taxes: Those applicable taxes for OS and Travel Card
calls originating and terminating in the same state but billed in another
state as described in Section 9 herein.
ILEC: Incumbent Local Exchange Carrier.
Independent Telephone Companies: Those ILECs that are not BOCs, which
presently include, subject to revision by USBI from time to time: General
Telephone Operating Companies (GTOCs), United Telecommunications Operating
Companies (United), Alltel, the alliance of Independent Telephone Companies
through Independent NECA Services, and Illuminet.
Interexchange Carrier (IXC): Those telephone companies, other than the LECs,
that can provide intraLATA (where applicable), interLATA, interstate and
international telecommunications service.
LEC Processing Fees: As described in paragraph 4.(c)(I) and 4.(f).
Library Code: An accounting identification code assigned to Customer by USBI
that is used to account for Customer's funds, fees, charges, charge backs,
adjustments and credits which Customer encodes within each EMI Billing
Record submitted to USBI.
Local Exchange Carrier (LEC): Any one of the local telephone companies, as
listed on Exhibit "A" hereto, providing local access telephone services with
whom USBI has entered into a billing and collection agreement.
MTS (Message Telephone Services): Direct dialed or operator assisted
station-to-station or person-to-person telephone calls billed: (I) to the
originating telephone number, (ii) collect to the terminating telephone
number, (iii) to a third telephone number other than the originating or
terminating telephone number, or (iv) to a LEC calling card or an IXC travel
card. "Enhanced Telecommunications Services" or "Information Services" are
not considered MTS calls herein and cannot be billed under this Agreement.
One Plus Telephone Traffic: Direct dialed telephone calls which: (I)
originate from an equal access end office, (ii) are billed to the
originating telephone number or (iii) are billed to an IXC travel card
issued by Customer.
Post Billing Adjustment or Credit: Credit or rate adjustments applied to an
End User's account by the LEC or by USBI.
Qualifying Message Telephone Service (Qualifying MTS): Casual OS Telephone
Traffic and One Plus Telephone Traffic which are not of objectionable
content as set forth in paragraph 7.(I) of this Agreement.
RBOCs: Regional Xxxx Operating Companies.
Submission Date: As described in paragraph 3.(a).
Tariffs: The rates, terms and conditions for providing intraLATA, interLATA
(intrastate), interstate, and international telecommunication services as
authorized and filed with the state and local regulatory authorities.
Taxes: Those taxes and tax-like surcharges described in paragraph 9.(a) herein.
Unbillable Records: Those EMI Billing Records that pass USBI's edits and
screens and are submitted to the LECs for billing and collection but
subsequently cannot be posted to an End User's account by the LECs.
Uncollectible Amounts: Those amounts that are billed to an End User's
account for Customer's Valid EMI Billing, Records but are not collected due
to the End User receiving a Post Billing Adjustment or Credit to its xxxx or
the End User failing to pay its xxxx to the LEC and the account subsequently
being written off as Bad Debt by the LEC.
USBI Rejected Records: Those EMI Billing Records that fail USBI's edits and
screens and are returned to Customer and not submitted to the LECs for
billing and collection.
Valid EINII Billing Records: As described in paragraph 3.(b).
Written-Off Accounts: Those End Users' accounts that are not paid by the End
Users and are subsequently written off as Bad Debt by the XXXXX.
SECTION 2. SCOPE OF AGREEMENT.
Customer hereby agrees to purchase from USBI the services described in
Section 3 herein, and USBI agrees to provide such services at the time and
in the manner, and subject to the terms and upon the conditions, set forth
herein. Customer agrees that USBI shall be the exclusive source for LEC
billing and information management services in the United States and Canada
for the
billing telephone companies listed in Exhibit "A", attached hereto. As USBI
enters into billing and collection arrangements with additional LECs, USBI
will provide billing and information management services to Customer for
such LECs on the same terms and conditions as contained herein.
SECTION 3. BILLING SERVICES.
(a) Submission of EMI Billing Records: Customer shall submit to USBI its
EMI Billing Records for its Qualifying MTS calls for USBI to submit to each
LEC under contract with USBI. Customer shall be responsible for submitting
to USBI EMI Billing Records that contain adequate information so that USBI
and the LECs can process such EMI Billing Records. Customer shall submit its
EMI Billing Records to USBI once per week, except when Customer cannot
satisfy USBI's minimum volume requirements as described in paragraph 7.(g),
in which case Customer shall submit its EMI Billing Records at least once
per month. The cost of these submissions shall be borne by Customer. The
date USBI receives Customer's EMI Billing Records will be, for those
records, the "Submission Date."
(b) USBI's Edits and Screens: Upon receipt of Customer's EMI Billing
Records, USBI will promptly process Customer's EMI Billing Records through
USBI's computer edits and screens. Those EMI Billing Records that pass
USBI's edits and screens shall be "Valid EMI Billing Records." Those EMI
Billing Records that do not pass USBI's edits and screens shall be "USBI
Rejected Records," and be returned to Customer.
(c) Submission to LEC's: Promptly after receipt of Customer's EMI
Billing Records (within five (5) Business Days after receipt for the RBOCs
and GTE, or within ten (10) Business Days after such receipt for Independent
Telephone Companies and CLECs), USBI will submit Customer's Valid EMI
Billing Records to the appropriate LECs.
(d) Purchase by LEC: Each LEC shall be responsible, to the extent
required by its agreement with USBI, to purchase Customer's Valid EMI
Billing Records.
(e) Billing and Collection LEC: Each LEC shall be responsible, for such
Valid EMI Billing Records purchased by the LEC, for the purchase and
collection of the revenue for Customer's Qualifying MTS Calls from End Users
residing within the applicable billing area of such LEC, subject to the
terms, conditions and operating procedures contained in each LEC's billing
and collection agreement with USBI.
(f) Printing of Customer's Name on End User's LEC Telephone Xxxx:
Wherever possible, USBI will use its best efforts to cause each Billing
Telephone Company to print
Customer's name, along with the associated Valid EMI Billing Records, on
each End User's telephone xxxx. Customer acknowledges that where the Billing
Telephone Companies do not provide this service, Customer's name shall not
appear on the End User's telephone xxxx.
SECTION 4. LEC PAYMENTS, FEES AND CHARGES.
(a) Payment by LECs: Each LEC shall make payments to USBI for Valid EMI
Billing Records purchased from Customer in accordance with the LEC's billing
and collection agreement with USBI.
(b) Amount Paid by LECs: The LEC shall pay to USBI the gross amount of Valid
EMI Billing, Records purchased by the LEC less the then-applicable fees,
charges, charge backs, credits and adjustments as prescribed in its billing
and collection agreement with USBI.
(c) LEC Fees. Charges. Charge Backs, Credits and Adjustments: Customer
acknowledges and understands that USBI is and will be bound by the terms of
its billing and collection agreement with each LEC with respect to each
LEC's right to deduct or to reduce its collectible funds for: (I) the amount
charged by each LEC for processing, billing and collecting Customer's Valid
EMI Billing Records ["LEC Processing Fees"], (ii) any Unbillable Records,
(iii) any Post-Billing Adjustments or Credits provided to End Users, (iv)
any reserve for anticipated Uncollectible Amounts ["Bad Debt Holdback
Reserve"], and (v) any LEC Bad Debt "true-ups" [periodic true-ups between
the Bad Debt Holdback Reserve and the actual Uncollectible Amounts realized
by the LECs]. In addition, Customer shall be responsible for any data
transmission and distribution fees for delivering or receiving Customer's
EMI Billing Records and for any other LEC charges specifically related to
billing and collecting Customer's EMI Billing Records. Customer further
agrees that payment of all amounts described in this paragraph 4.(c) shall
be its sole responsibility and that USBI may withhold such amounts from
payments to Customer. Should such amounts exceed the amounts due to
Customer, such amounts shall be due and payable by Customer to USBI within
ten (10) Business Days of notification by USBI of any amounts due. A
schedule setting forth USBI's current contractual LEC Processing Fees for
each LEC is attached hereto as Exhibit "B", as may be changed from time to
time.
(d) Bad Debt Holdback Reserve: USBI will holdback or cause the LECs to
holdback an amount estimated to be sufficient to set off any Uncollectible
Amounts that may be determined after the date USBI makes its final payment
to Customer for Customer's Valid EMI Billing Records billed and collected by
the LEC. Any Bad Debt Holdback Reserve withheld by the LEC shall be passed
through to Customer on the same percentage or the same amount as
USBI was assessed by the individual LECs. However, once sufficient data
becomes available to USBI from the LECs to enable USBI to determine a
specific Bad Debt history attributable to Customer, the Bad Debt Holdback
Reserve rate shall be based on Customer's specific historical Uncollectible
Amounts when eater than the amount withheld by the LEC. A schedule setting
forth the past twelve months' average Bad Debt Holdback Reserve withheld by
each LEC is attached hereto, for your reference, as Exhibit "G".
(e) Monthly LEC Bad Debt True-Up: Between six and eighteen 6 - 18) months
after USBI submits Customer's Valid EMI Billing Records to the LECs' for
billing and collection, the LECs will determine the actual amounts collected
from the End Users and true-up the difference between this amount and the
face amount of Customer's Valid EMI Billing Records purchased by the LEC.
USBI will provide Customer monthly reports on Bad Debt true-ups for these
differences. If the amount of these true-ups is "in favor" (positive) of
Customer, USBI will remit such amount to Customer when USBI receives the
true-up amount from the LECs. If the amount of these true-ups is "not in
favor" (negative) of Customer, USBI will withhold such amounts from the next
scheduled payment due to Customer. If the amounts due -to Customer are not
sufficient to satisfy such true-up amounts, such amounts shall be due and
payable by Customer to USBI within ten (10) Business Days of notification by
USBI of any amounts due.
(f) LEC Processing Fee Calculation: Each calendar month USBI will determine
the number of End User bills (renderings) that were or will be required to
xxxx Customer's Valid EMI Billing Records submitted to USBI during that
month and the average number of Valid EMI Billing Records contained on each
End User's xxxx. 'USBI will multiply these quantities'-by its contractual
LEC Processing Fee schedule, as set forth in Exhibit "B", for each LEC to
calculate the LEC Processing Fees associated with billing Customer's Valid
EMI Billing Records. The LEC Processing Fee will also include any data
transmission fees, distribution fees, programming fees and any other charges
directly associated with billing Customer's Valid EMI Billing Records.
(g) End User Inquiry, Investigation and Rebate: Primary End User inquiry
inquiry, investigation and rebate policies are set forth in Exhibit "F"
attached hereto. Customer shall be responsible for payment of all
Post-Billing Adjustments, Credits and associated charges provided to End
Users by either the LEC or USBI. Customer understands that each LEC has its
own policies regarding assessment of credits, fees and penalties for
customer service complaints and Customer agrees to be bound by such
policies. Such amounts may be deducted weekly from the amounts due to
Customer. If the amount due to Customer is not sufficient to satisfy these
amounts, then Customer shall pay to USBI such amount as is required to
satisfy these amounts within ten (10) Business Days of notification by USBI
of any amounts due.
(h) Rejected Records: Those EMI Billing Records that fail USBI's edits and
screens and are not submitted to the LECs for billing and collection, USBI
Rejected Records, shall be returned to Customer at no charge. Unbillable
Records rejected by the LEC, through no fault of USBI, shall be charged the
same USBI Processing, Fees as described in Exhibit "C" attached hereto.
(i) Resubmitted EMI Billing Records: Unbillable Records which are
resubmitted to the LECs for billing and collection shall be charged the
standard USBI Processing Fees as described in Exhibit "C" attached hereto.
(j) Allocation Method: Customer understands and agrees that USBI will use
an allocation method for chargebacks to determine amounts due under this
Agreement when Customer-specific information is not matched or available
from the LECs.
SECTION 5. USBI BILLING SERVICE FEES, CHARGES AND CHARGE BACKS.
In addition to the LEC Processing Fees, charges, charge backs, credits and
adjustments set forth in Section 4, Customer agrees to pay to USBI and USBI
may deduct from amounts collected by the LECs on behalf of Customer and paid
to USBI, the following USBI billing service fees, charges charge backs,
credits and assessments:
(a) A billing and information management service fee, the USBI Processing
Fee, for each Valid EMI Billing Record submitted to the LECs for billing and
collection by USBI, as specified in Exhibit "C" attached hereto;
(b) A fee for each End User inquiry, investigation and rebate handled by
USBI on Customer's behalf, as specified in Exhibit "C" attached hereto;
(c) Any Post-Billing Adjustment or Credit amounts refunded to End Users by
USBI's customer service inquiry and investigation activities, along with any
LEC charges associated with making such refunds to End Users;
(d) A charge, as specified in Exhibit "C" attached hereto, for any
submission of EMI Billing Records that contains less than the minimum volume
requirements of USBI for each "Library Code";
(e) An additional End User inquiry, investigation and rebate fee, as
described in Exhibit "C" attached hereto, for each inquiry that exceeds one
percent (1%) of the number of Valid EMI Billing Records for each Library
Code processed by USBI on behalf of Customer each month;
(f) Accounts Receivable Reconciliation System. - FASTRACK: An initial,
one-time, non-renewable fee, as described in Exhibit "C" attached hereto,
for USBI's accounts receivable reconciliation system known as FASTRACK; and
(g) As collateral for all obligations now existing or hereafter arising
from Customer to USBI, Customer hereby grants to USBI a security interest in
all the following property of Customer, whether now owned or hereafter
acquired or created, and all proceeds and products thereof:
(i) All amounts paid, and all amounts owing, by each LEC to
USBI on accounts for Customer's Valid EMI Billing Records;
(ii) All accounts owing from an End User to Customer arising
from services which give rise to Customer's Valid EMI Billing Records;
(iii) All amounts deposited by Customer with USBI pursuant
to paragraph 13.(b) hereof; and
(iv) All amounts owing and all amounts to be owing from USBI
to Customer.
SECTION 6. PAYMENTS TO CUSTOMER.
(a) Determination of Amount Due Customer: USBI will determine the amount
collected by each LEC for Customer's Valid EMI Billing Records and deduct
the then-applicable fees, charges, charge backs, credits and adjustments of
the LECs and USBI. If the amount due to Customer is not sufficient to
satisfy these fees, charges, charge backs, credits and adjustments, then
Customer shall pay this difference to USBI within ten (10) Business Days of
notification by USBI of any amounts due.
(b) Reserves and True-Ups for Unbillable Records: USBI will reserve an
amount, from one month to the next, that is equal to Customer's prior
history for Unbillable Records. USBI will recalculate Customer's historical
experience quarterly from its prior three months results. Until such history
can be determined for Customer, USBI will reserve one and one-half percent
(1.5%) from the amount due to Customer. USBI will true-up this reserve each
month
when the information becomes available from the LECs. USBI will then return
excess amounts to Customer or withhold additional amounts as may be required
to satisfy these liabilities from the amounts due to Customer.
(c) Payment Schedules: USBI will advance to Customer the estimated amount
determined under paragraph 6.(a) above within seven (7) Business Days of
receipt by USBI of funds from a LEC for Customer's Valid EMI Billing
Records; PROVIDED. HOWEVER, that if Customer has ceased doing business for
five (5) Business Days, is the subject of a bankruptcy proceeding, has a
receiver, trustee or custodian appointed over substantially all of
Customer's assets, fails to make any deposit required by paragraph 13.(b),
or if USBI has reasonable grounds to believe that the fees, charges, charge
backs, credits and adjustments to Customer may exceed any amount owing or to
become owing from USBI to Customer, USBI may withhold payments to Customer
until al I such amounts have been determined and deducted from the amount
owing to Customer. If the amount owing to Customer is determined not
sufficient to satisfy these fees, charges, charge backs, credits and
adjustments, then Customer shall pay the difference to USBI within ten (10)
Business Days of notification by USBI of any amount due.
(d) Method of Payment: USBI will make all advance payments and final
payments due to Customer, using ACH wire transfer, each Tuesday or the first
Business Day following Tuesday should Tuesday not fall on a Business Day,
based on the schedule described in paragraph 6.(c) herein.
(e) Accounting for Funds: Funds received from the LECs for Customer's Valid
EMI Billing Records, less applicable fees, charges, charge backs, credits
and adjustments, shall be deposited and held by USBI in a common account
until such time as the amount determined to be due Customer is paid to
Customer. USBI will maintain an accounting of the balance owing or to be
owing by USBI to Customer of such amounts deposited and held by USBI.
SECTION 7. CUSTOMER'S OBLIGATIONS.
The Customer agrees as follows:
(a) Cooperation by Customer: Customer agrees to cooperate with USBI to the
fullest extent possible and to the best of Customer's ability to facilitate
the provisioning of services described in Section 3 herein. Such cooperation
shall include, but not be limited to, the following:
Billing Records. The minimum USBI Processing Fee as set forth in Exhibit
"C", attached hereto, shall apply if this minimum volume per transmission is
not met.
(h) Review of FASTRACK: Customer agrees to review FASTRACK reports provided
to Customer and notify USBI of any inaccuracies within thirty (30) days of
the date such FASTRACK reporting is made available to Customer. Failure to
notify USBI of any inaccuracies within such time period will constitute
acceptance thereof.
(i) Objectionable Content: Customer agrees, as a condition of USBI's
performance under this Agreement, that USBI will not provide billing and
-information management services which USBI deems harmful, damaging or
against public policy, including, but not limited to:
(i) Services which explicitly or implicitly refer to
sexual conduct;
(ii) Services which contain indecent, obscene or profane
language;
(iii) Services which allude to bigotry, racism, sexism or
other forms of discrimination;
(iv) Services which through advertising, -content or
delivery are deceptive, or that may take unfair advantage of minors or the
general public;
(v) Services which are publicly accessible, multiparty
connections commonly known as "gab" or "chat" services;
(vi) Services which have not been authorized by End Users,
or which have had excessive customer service complaints associated with
such services;
(vii)Services which are prohibited by Federal, state, or
local laws or Tariffs; or
(viii)Services which individual LECs exclude from the
"types" of services or products for which their policies permit them to xxxx
and collect.
(j) No Other Billing Arrangement: Customer warrants that the EMI Billing
Records submitted and to be submitted by Customer to USBI pursuant to this
Agreement are not and will not be subject to any other valid or existing
billing and collection agreement and have not been billed previously and
will not be billed by another party following their submission by Customer
to USBI.
(k) LEC Billing Compliance: Customer agrees to conduct business in
accordance with all LEC policies and guidelines, which are provided to
Customer by USBI.
(l) Customer shall limit the number of EMI Billing Records for Casual OS
Telephone Traffic to not more than ten percent (10%) of the total EMI
Billing Records submitted to USBI on any given transmission. If Customer's
volume of EMI Billing Records for Casual OS Telephone Traffic exceeds ten
percent (10%), then Customer must execute a Zero Plus - Zero
Minus Billing and Information Management Services Agreement with ZPDI and
shall submit its EMI Billing Records for Casual OS Telephone Traffic to ZPDI
for billing under this Zero Plus Zero Minus Billing and Information
Management Services Agreement.
(m) Payment of Amounts Due USBI: For any amounts determined to be due USBI
by Customer under this Agreement, Customer agrees to pay such amounts to
USBI within ten (10) days of notification by USBI to Customer. After a
period of thirty (30) days from such invoice date, interest on unpaid
balances shall accrue at the lower r of 18% per annum or the highest legal
rate allowed by law.
SECTION 8. PROTECTION OF CONFIDENTIAL INFORMATION.
As used herein, "Confidential Information" shall mean (a) proprietary
information, (b) information marked or designated as confidential, (C)
information otherwise disclosed in a manner consistent with its confidential
nature, (d) information of one party, whether or not in written form and
whether or not designated as confidential, that is known or should
reasonably be known by the other party as being treated as confidential, and
(e) information submitted by one party to the second party where the second
party knows or reasonably should know that the first party is obligated to
keep the information confidential. The parties hereto expressly recognize
and acknowledge that, as a result of the provision of services pursuant to
this Agreement, Confidential Information which may be proprietary to each
party must or may be disclosed to the other. Each party hereby agrees that
it will make no disclosure of Confidential Information provided under this
Agreement with OAT the prior written consent of the other party.
Additionally, each party shall restrict disclosure of said information to
its own employees, agents or independent contractors to whom disclosure is
necessary and who have agreed to be bound by the obligations of
confidentiality hereunder. Such employees, agents or independent contractors
shall use reasonable care, but not less care than they use with respect to
their own information of like character, to prevent disclosure of any
Confidential Information. Nothing contained in this Agreement shall be
considered as granting or conferring rights by license or otherwise in any
Confidential Information disclosed.
SECTION 9. TAXES.
(a) Calculation of Telecommunications Taxes: USBI will be responsible for
calculating or will use its best efforts to cause the LECs to calculate the
following taxes applicable to each MTS call and allow them to be passed
through to the End User, such taxes being referred to herein collectively as
"Taxes": Federal excise tax, any state and local sales taxes or tax-like
charges, and any other standard telecommunications sales taxes.
Notwithstanding the foregoing, Customer acknowledges and agrees it is
responsible for compliance with all taxing requirements; therefore, Customer
shall promptly notify USBI of any tax or tax-like surcharges and the
associated rates that apply to Customer's MTS calls in any specific
jurisdiction.
(b) Billing and Collection of Taxes: USBI will, for the benefit of and on
behalf of Customer, use its best efforts to cause the LECs to xxxx End Users
for all Taxes. Customer acknowledges and agrees that USBI is acting merely
as Customer's agent with respect to arranging for the billing and collection
of Taxes, and in no event shall USBI be entitled to retain or receive from
Customer, or from any End User, any statutory fee or share of Taxes to which
the person collecting the same may be entitled under applicable law.
(c) Tax Exempt Status for End Users: USBI will have the authority, on behalf
of Customer, to authorize the LECs to calculate Taxes in the same manner as
the LECs calculate Taxes for their End Users and to authorize the LECs to
establish the tax exempt status of End Users in the same manner as the LECs
establish such status for their End Users. If-Customer's MTS calls are
exempt from Federal, state and local taxes or tax-like charges, Customer
shall so indicate on each EMI Billing Record submitted to USBI.
(d) Filing and Payment of Taxes: Based upon the information calculated by
USBI and/or received from the LECs with respect to Taxes assessed, billed
and collected by the LECs, USBI will, on behalf of Customer, prepare and
file in a timely manner with the applicable taxing authorities all returns
covering Taxes, and will, on behalf of Customer, but only to the extent of
amounts otherwise owing from USBI to Customer, pay in full and promptly
remit to such taxing authorities all Taxes owed thereto. Upon written
request, USBI will provide to Customer copies of any and all tax returns and
other applicable information relating to the payment of Taxes by USBI within
thirty (30) days after being filed and paid by USBI.
(e) Hold Harmless: Customer shall indemnify and hold USBI and its employees,
agents and representatives free and harmless from and against any Claim
(including, without limitation, reasonable attorneys' fees and court costs)
relating to or arising out of any Taxes, penalties, interest, additions to
tax, surcharge or other amounts to which USBI may be subject or incur,
relating to or arising, out of (i) USBI's reliance upon any calculations,
determinations or other directives, or lack thereof, given by Customer to
USBI with respect to the calculation, assessment, billing and/or collection
of any Taxes contemplated by this Agreement; or (ii) a determination by the
Internal Revenue Service or any other taxing authority that any amount paid
by USBI pursuant to paragraph 9.(d) above with respect to Taxes was
insufficient, except in the event such insufficiency was the result of
negligence on the part of USBI; provided, however,
that Customer shall not be required to indemnify USBI or the employees,
agents and representatives thereof for any loss, damage, Claim, cause of
action or other liability to the extent, but only to the extent, caused by
the gross negligence or willful misconduct of USBI.
(f) Billed Taxes: Customer shall be responsible for the payment of any
additional Taxes or tax-like charges assessed against USBI based on the
revenues collected by USBI from Customer's Valid EMI Billing Records,
"Billed Taxes", excluding Federal and state income Taxes.
SECTION 10. FORCE MAJEURE.
USBI shall not be held liable for any delay or failure in performance- of
any part of this Agreement or Exhibits attached hereto 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, volcanic
action, other major environmental disturbances, unusually severe weather
conditions, inability to secure products or services of other persons or
transportation facilities, or acts or omissions of transportation common
carriers.
SECTION 11. LIMITATION OF LIABILITY.
(a) USBI will use its best efforts at all times to provide prompt and
efficient service; however, USBI makes no warranties or representations
regarding the services except as specifically stated in this paragraph
11.(a). USBI will use due care in processing all work submitted to it by
Customer and agrees that it will, at its expense, correct any errors which
are due solely to malfunction of USBIs computers, operating systems or
programs or errors by USBI's employees or agents. Correction shall be
limited to reprocessing Customer's EMI Billing Records. USBI will not be
responsible in any manner for failures of, or errors in, proprietary systems
and programs other than those of USBI, nor shall USBI be liable for errors
or failures of Customer's software or operational systems. THIS WARRANTY IS
EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, AND CUSTOMER
HEREBY WAIVES
ALL OTHER WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING,
BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR
A
PARTICULAR PURPOSE. Should there be any failure in performance or errors or
omissions by USBI with respect to the information being processed and being
submitted to the LECs for billing, and collection, USBI's liability shall be
limited to using its best efforts to correct such failure. In no event,
except as specifically set forth herein, shall USBI be liable to Customer or
any third parties (including Customer's customers) for any Claim even if
USBI has been advised of the possibility of such Claim.
(b) Due to the nature of the services being performed by USBI, Customer
agrees that in no event will USBI be liable for any Claim caused by USBI's
performance or failure to perform hereunder which is not reported by
Customer in writing to USBI within thirty (30) days of such performance or
failure to perform.
(c) Customer shall indemnify and save harmless USBI from and against any
Claim asserted against USBI by third parties and arising out of Customer's
use of the services provided under this Agreement, unless such Claim arises
out of the willful misconduct or gross negligence of USBI.
(d) Liability of USBI in any and all categories and for any and all Claims
arising out of this Agreement or out of any act or omission relating thereto
shall, in the aggregate, not exceed one (1) month's average of USBI's
Processing, Fees to Customer over the twelve (12) months preceding such date
in which the damage or injury is alleged to have occurred, but if this
Agreement has not been in effect for twelve (12) months preceding such date,
then over such fewer number of preceding months that this Agreement has been
in effect.
SECTION 12. TERM OF AGREEMENT.
The initial term of this Agreement shall begin on the date on page I of this
Agreement or the date Customer begins submitting its EMI Billing Records to
USBI, whichever is later, and continue in full force and effect for a
minimum period of one (1) year from such date unless terminated in
accordance with paragraph 14.(b)(i) and shall automatically renew for
successive periods of one (1) year under the then-existing company standard
terms and conditions unless terminated by written notice from either party
at least sixty (60) days prior to the scheduled expiration date.
Notwithstanding anything to the contrary contained herein, if Customer is
currently billing more than two hundred and fifty thousand (250,000) EMI
Billing Records per month, Customer may elect an initial term for this
Agreement of two (2) or three (3) years. Should Customer elect to extend the
initial term of this Agreement, Customer shall pay USBI a minimum Processing
Fee, as described in Exhibit "C" attached hereto, each month for the entire
term of this Agreement. In consideration for such, USBI will charge Customer
a reduced billing services fee for the term selected which coincides with
the USBI fee schedule as presented in Exhibit "C", attached hereto.
SECTION 13. EXPIRATION OR TERMINATION.
(a) Payment Upon Expiration Or Termination: Upon the expiration or
termination of this Agreement for any reason, Customer agrees to satisfy,
when or before due, any and all of its obligations under this Agreement.
(b) Deposit for Charges: In addition Customer acknowledges and understands
that certain LEC charges for Uncollectible Amounts, Bad Debt true-ups and
'Post-Billing Adjustments and Credits are not determined by the LECs or
provided to USBI for a period of up to eighteen (18) months after the final
processing of Customer's EMI Billing Records by USBI on behalf of Customer.
Customer further acknowledges and agrees that payment of these amounts shall
be its sole responsibility. To ensure such payments, Customer shall, at the
expiration or termination of this Agreement for any reason, deposit with
USBI an amount equal to two and one-half percent (2.5%) of the face amount
of Customer's gross xxxxxxxx for the prior twelve (12) months, or such other
amount as is estimated by USBI, based on Customer's prior history, necessary
to satisfy such charges. Such deposited amount shall be used by USBI to pay
Uncollectible Amounts, Bad Debt true-ups, Post-Billing Adjustments and
Credits and other charges incurred on behalf of Customer for billing and
collecting Customer's EMI Billing Records submitted by Customer to USBI
during the term of this Agreement. Each quarter USBI will re-examine the
amount of funds deposited and make such adjustments as USBI estimates may be
necessary to satisfy the aforementioned charges. USBI will provide Customer
with proper documentation to substantiate charges attributable to Customer
on the same and consistent method as USBI determines such charges for all of
its customers. At the end of eighteen (18) months from the expiration or
termination date, USBI will return all unused amounts to Customer.
(c) Remaining Liability: Notwithstanding the foregoing, the deposit of such
amounts does not relieve or waive Customer's responsibility and obligation
to pay its obligations to USBI including, without limitation, any and all
fees, charges, charge backs, credits and adjustments associated with billing
and collecting its EMI Billing Records. In the event such associated fees,
charges, charge backs, credits and adjustments exceed the amount of the
deposit described in paragraph 13(b), Customer shall remit to USBI such
additional amounts as are required to satisfy Customer's obligations under
this Agreement to USBI within ten (10) Business Days of notification by USBI
of any such amounts due.
(d) Savings Clause: Except as otherwise provided herein, expiration or
termination of this Agreement under this Section 13 shall terminate all
further rights and obligations of the parties hereunder, provided that:
(i) Neither USBI nor Customer shall be relieved of its respective
obligations to pay any sums of money due or to become due or payable or
accrued under this Agreement;
(ii) If such expiration or termination is a result of a default
hereunder or a breach hereof by a party hereto, the other party shall be
entitled to pursue any and all rights and remedies it has to redress such
default or breach in law or equity, subject to Sections 11 & 14 hereof-, and
(iii) The provisions of Sections 8 and 9 hereof, except paragraph
9.(b), shall survive the expiration or termination of this Agreement.
(e) Early Termination of Extended Term Agreement: If Customer elects to
extend the initial term of this Agreement and should Customer terminate or
breach this Agreement before the expiration of the full initial term elected
by Customer upon execution hereof, USBI will recalculate and Customer shall
pay to USBI a USBI Processing Fee for all EMI Billing Records processed
under this Agreement based on the current USBI Processing Fee schedule at
the one I year rate, attached hereto as Exhibit "C", plus ten percent (10%)
for each EMI Billing Record processed under this Agreement, at Customer's
monthly volume levels.
SECTION 14. DEFAULT AND REMEDIES.
(a) Default: Either Party shall be in default hereunder if it::
(i) Fails to make any payment specified
hereunder when or before due and such failure continues for five (5)
Business Days after written notice;
(ii) Breaches any other material covenant
or undertaking, contained in this Agreement and fails to remedy such breach
within thirty (30) Business Days after written notice thereof from the
non-defaulting party;
(iii) Submits EMI Billing Records to USBI
for services that have not been authorized by End Users;
(iv) Submits EMI Billing Records to USBI
which generate excessive customer service complaints; or
(iv) Files, or there is filed against
it, any voluntary or involuntary proceeding under the Bankruptcy Code, makes
an assignment for the benefit of creditors, dissolves, ceases to conduct
business for three (3) Business Days, resorts to any insolvency law,
declares that it is unable to pay its debts as they mature or if a receiver,
trustee or custodian is appointed over, or an execution, attachment, or levy
is made upon, all or any material part of the property of such party.
(b) Remedies: Time is of the essence in the performance of this Agreement.
In the event of any default hereunder, the non-defaulting party shall have
the following rights and remedies:
(i) To terminate or cancel this Agreement, subject to the
provisions of paragraph 13(d), by giving written notice thereof to the
defaulting party;
(ii) To declare all amounts due under this Agreement
from the defaulting party to the non-defaulting party to be immediately due
and payable, including attorney's fees and expenses incurred or which may be
incurred in the collection of such amounts;
(iii) To withhold, set off, and retain, until all obligations
of Customer to USBI have been satisfied in full, any and all amounts which
may otherwise be due and payable to Customer under this Agreement and apply
such amounts to any balance due or to become due from Customer to USBI
(iv) All rights and remedies allowed by the applicable
Uniform Commercial Code;
(v) All other rights and remedies allowed by this USBI
Agreement and under applicable law; and
(vi) All rights and remedies shall be cumulative and can be
exercised separately or concurrently.
SECTION 15. AMENDMENTS; WAIVERS.
No modification, 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 modification, 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 or such term, right or condition.
SECTION 16. ASSIGNMENT.
(a) By Customer or USBI: Assignment by Customer or USBI of any right,
obligation, duty or any other interest hereunder, in whole or in part, shall
require consent by both parties. Such consent shall not be unreasonably
withheld by either party.
(b) Generally: All rights, obligations, duties and interests of any party
under this Agreement shall inure to the benefit of and be binding on all
successors in interest and assigns of such party and shall survive any
acquisition, merger, reorganization or other business combination to which
it is a party.
SECTION 17. NOTICES AND DEMANDS.
(a) How Notice Is Given: Except as otherwise provided under this Agreement,
all notices, demands and requests which may be given by any party to the
other party shall be in writing and shall be: (I) delivered in person; (ii)
mailed, postage prepaid, registered or certified mail, return receipt
requested; (iii) placed in the hands of a national overnight delivery
service or (iv) sent by facsimile transmission to the recipient's facsimile
machine, with an extra copy immediately following by first class mail; and
addressed as follows:
If to USBI, to it at:
Billing Concepts, Inc.
dba U.S. Billing
Attention: Xxxx X. Xxxxxxxx
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Customer, to it at:
GenX Communications, LLC dba Preferred Disc. Plan
Attention: Xxxx Xxxxxx
0000 Xxxxxx Xxxxxx, Xxxx X-0
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000 x
Fax: (000) 000-0000
If personal delivery is selected as the method of giving notice under this
Section, a receipt for such delivery shall be obtained. The address to which
such notices, demands, requests, elections or other communications may be
given by either party may be changed by written notice given by such party
to the other party pursuant to this Section 17.
(b) When Notice Effective: Except as otherwise expressly provided herein,
all such notices shall be effective upon receipt if delivered by hand,
facsimile, national overnight delivery service, certified or registered mail
and otherwise five (5) Business "Days after placement in the U.S. Mails.
EXHIBIT "A"
USBI BILLING TELEPHONE COMPANIES
Alltel
Ameritech
Xxxx Atlantic
Xxxx South
Century Telephone
Chillicothe Telephone
Cincinnati Xxxx
Citizens Via Alltel
Citizens Via GTE
GTE Central
GTE Contel
GTE North
GTE South
GTE West
Illuminet
NECA
NYNEX
Pacific Telcom
Pactelis
Southern New England Xxxx
Southwestern Xxxx
Sprint Mid-Atlantic Telecom
Telecom Canada
U.S. WEST
United Florida
United Midwest
United North Central
NOTE: NPA-NXX list (ONNET File) of above BTCs will be furnished to Customer
monthly, via the Electronic Bulletin Board.
COMPANY CONFIDENTIAL
EXHIBIT "B"
U.S. BILLING CONTRACTUAL LEC COST
May 1998
Page l of 5
LEC # COMPANY NAME XXXX RENDERING CALL RECORDS ENHANCED
INTER INTRA INTER INTRA 42 RCDS
STATE STATE STATE STATE
XXXX OPERATING COMPANIES:
10 NYNEX
9102 NEW ENGLAND TELEPHONE
MASSACHUSETTS 0.9600 0.5500 0.0100 0.02000.0000
MAINE 0.9600 0.9600 0.0100 0.01000.0000
NEW HAMPSHIRE 0.9600 0.9600 0.0100 0.01000.0000
RHODE ISLAND 0.9600 0.9600 0.0100 0.01000.0000
VERMONT 0.9600 0.9600 0.0100 0.01000.0000
9104 NEW YORK TELEPHONE 1:
CONNECTICUT 0.9600 0.9600 0.0100 0.01000.0000
NEW YORK 0.9600 0.9600 0.0100 0.01000.0000
00 XXXX
0000 XXXXXXXX XXX XXXXXXX 0.5100 0.5100 0.0560 0.05600.0000
00 XXXX XXXXXXXX
0000 XXX XXXXXX XXXX 0.3300 0.3300 0.0240 0.0240 0.2500
9208 PENNSYLVANIA XXXX 0.3300 0.3300 0.0240 0.0240 0.2500
9210 DIAMOND STATE 0.3300 0.3300 0.0240 0.0240 0.2500
9211 C&P WASHINGTON, D.C. 0.3300 0.3300 0.0240 0.0240 0.2500
9212 C&P MARYLAND 0.3300 0.3300 0.0240 0.0240 0.2500
9213 C&P VIRGINIA 0.3300 0.3300 0.0240 0.0240 0.2500
9214 C&P WEST VIRGINIA 0.3300 0.3100 0.0240 0.0240 0.2500
16 AMERITECH
9321 OHIO XXXX 0.3500 0.3500 0.0300 0.0300 0.0000
9323 MICHIGAN XXXX 0.3500 0.3500 0.0300 0.0300 0.0000
9325 XXXXXXX XXXX 0.3500 0.3500 0.0300 0.0300 0.0000
9327 WISCONSIN XXXX 0.3500 0.3500 0.0300 0.0300 0.0000
9329 ILLINOIS XXXX 0.3500 0.3500 0.0300 0.0300 0.0000
18 CINCINNATI XXXX
9348 KENTUCKY 0.6000 0.5500 0.0192 0.0197 0.0300
9348 OHIO 0.6000 0.6000 0.0192 0.0192 0.0300
COMPANY CONFIDENTIAL
The rendering fee includes the first ten (10) messages. The additional $.01
only applies beginning at the eleventh (11th) message and greater.
EXHIBIT "B"
U.S. BILLING CONTRACTUAL LEC COST
May 1998
Page 2 of 5
LEC # COMPANY NAME XXXX RENDERINGCALL RECORDS ENHANCED
INTER INTRA INTER INTRA 00 XXXX
XXXXX XXXXX XXXXX XXXXX
00 XXXX XXXXX
9417 SOUTHERN XXXX
FLORIDA 0.3690 0.3690 0.0262 0.0262 0.1010
GEORGIA 0.3690 0.3690 0.0262 0.0262 0.1010
NORTH CAROLINA 0.3690 0.3690 0.0262 0.0262 0.1010
SOUTH CAROLINA 0.3690 0.3690 0.0262 0.0262 0.1010
0000 XXXXX XXXXXXX XXXX:
ALABAMA 0.3690 0.3690 0.0262 0.0262 0.1010
KENTUCKY 0.3690 0.3690 0.0262 0.0262 0.1010
LOUISIANA 0.3690 0.3690 0.0262 0.0262 0.1010
MISSISSIPPI 0.3690 0.3690 0.0262 0.0262 0.1010
TENNESSEE 0.3690 0.3690 0.0262 0.0262 0.1010
00 XXXXXXXXXXXX XXXX
0000 XXXXXXXXXXXX XXXX 0.0000 0.3500 0.0300 0.0300 0.0351
00 X.X. XXXX
0000 XXXXXXXXXXXX XXXX 0.0000 0.4200 0.0250 0.0250 0.1000
9631 MINNESOTA 0.4200 0.4200 0.0350 0.0350 0.1000
9636 MOUNTAIN XXXX 0.4200 0.4200 0.0250 0.0250 0.1000
0000 XXXXXXX XXXXXXXXX XXXX 0.0000 0.4200 0.0250 0.0250 0.1000
9638 WASHINGTON 0.4200 0.4200 0,0350 0.0350 0.1000
26 PACTELIS
9740 PACIFIC XXXX 0.2400 0.1900 0.0110 0.0110 0.0000
9742 NEVADA XXXX 0.3500 0.6000 0.0350 0.0910 0.0000
GTE COMPANIES:
00 XXX XXXXX
000 XXX XX XXXXXXX 0.0000 0.3500 0.0450 0.0762 0.1350
407 KENTUCKY 0.3900 0.3500 0.0450 0.0762 0.1350
4331 ALABAMA 0.3900 0.3500 0.0450 0.0762 0.1350
4334 NORTH CAROLINA 0.3900 0.3500 0.0450 0.0762 0.1350
4335 SOUTH CAROLINA 0.3900 0.3500 0.0450 0.0762 0.1350
4337 VIRGINIA 0.3900 0.3900 0.0450 0.0450 0.1350
00 XXX XXXXX
000 XXX XX XXXXXXXXXXXX 0.3900 0.3900 0.0450 0.0450 0.1350
615 GTE OF OHIO 0.3900 0.3900 0.0450 0.0450 0.1350
695 GTE OF MICHIGAN 0.3900 0.3900 0.0450 0.0450 0.1350
772 GTE OF INDIANA 0.3900 0.3900 0.0450 0.0450 0.1350
886 GTE OF WISCONSIN 0.3900 0.3500 0.0450 0.0762 0.1350
1015 GTE ILLINOIS 0.3900 0.3500 0.0450 0.0762 0.1350
COMPANY CONFIDENTIAL
EXHIBIT "B"
U.S. BILLING CONTRACTUAL LEC COST
May 1998
Page 3 of 5
LEC # COMPANY NAME XXXX RENDERINGCALL RECORDS ENHANCED
INTER INTRA INTER INTRA 42 RADS
STATE STATE STATE STATE
GTE COMPANIES - CON'T.:
46 GTE CENTRAL
4311 IOWA 0.3900 0.3900 0.0450
0.0450 0.1350
4312 MINNESOTA 0.3900 0.2700 0.0450
0.0170 0.1350
4313 MISSOURI 0.3900 0.3500 0.0450
0.0643 0.1350
4314 NEBRASKA 0.3900 0.3900 0.0450
0.0450 0.1350
4341 ARKANSAS 0.3900 0.3900 0.0450
0.0450 0.1350
4342 NEW MEXICO 0.3900 0.2700 0.0450
0.0967 0.1350
4343 OKLAHOMA 0.3900 0.3900 0.0450
0.0450 0.1350
4344 CONTEL dba GTE TEXAS 0.3900 0.7500 0.0450
0.0300 0.1350
4344 GTE SOUTHWEST INC. 0.3900 0.3500 0.0450
0.0565 0.1350
52 GTE WEST
2319 CALIFORNIA 0.3900 0.1900 0.0450
0.0110 0.1350
2319 GTE WC CA 0.3900 0.3500 0.0450
0.0762 0.1350
2319 GTE CALIFORNIA 0.3900 0.3500 0.0450
0.0762 0.1350
3100 GTE OF HAWAII 0.3900 0.0000 0.0450
0.0000 0.1350
4321 IDAHO 0.3900 0.3500 0.0450
0.0762 0.1350
4323 OREGON 0.3900 0.3500 0.0450
0.0762 0.1350
4324 WASHINGTON 0.3900 0.4800 0.0450
0.0762 0.1350
53 CITIZENS XXX XXX
0000 IDAHO 0.0000 0.0000 0.0938
0.0938 0.0900
4322 MONTANA 0.0000 0.0000 0.0938
0.0938 0.0900
4336 TENNESSEE 0.0000 0.0000 0.0634
0.0634 0.0900
4338 WEST VIRGINIA 0.0000 0,0000 0.0634
0.0634 0.0900
4426 ARIZONA 0.0000 0.0000 0.0522
0.0522 0.0900
4429 UTAH 0.0000 0,0000 0.0522
0.0522 0.0900
INDEPENDENTS:
28 TELECOM CANADA 0.0000 0.0000 0.5500
0.5500 0.0000
58 UNITED FLORIDA
340 CENTRAL 0.3150 0.0000 0.0280
0.0210 0.0000
341 UNITED 0.3150 0.0000 0.0280 0.0210 0.0000
COMPANY CONFIDENTIAL
EXHIBIT "B"
U.S. BILLING CONTRACTUAL LEC COST
May 1998 -
Page 4 of 5
LEC # COMPANY NAME XXXX RENDERINGCALL RECORDS ENHANCED
INTER INTRA INTER INTRA 00 XXXX
XXXXX XXXXX XXXXX XXXXX
00 XXXXXX XXXXXXX
1456 MINNESOTA 0.3150 0.3150 0.0280 0.0280 0.0000
1594 WYOMING b.3150 0.3150 0.0280 0.0280 0.0000
1595 NEBRASKA 0.3150 0.3150 0.0280 0.0280 0.0000
1810 EASTERN KANSAS 0.3150 0.3150 0.0280 0.0280 0.0000
0000 XXXXX XXXXXXX XXXXXX 0.0000 0.3150 0.0280 0.0280 0.0000
1842 KANSAS 0.3150 0.3150 0.0280 0.0280 0.0000
1957 MISSOURI 0.3150 0.2016 0.0280 0.0243 0.0000
2084 TEXAS 0.3150 0.3765 0.0280 0.0164 0.0000
2114 TEXAS-CENTRAL 0.3150 0.1348 0.0280 0.0945 0.0000
2348 NEVADA 0.3150 0.0091 0.0280 0.0379 0.0000
0000 XXXXXXXXX 0.3150 0.3133 0.0320 0.0379 0.0000
63 SPRINT MID-ATLANTIC TELECOM
254 CENTRAL TELEPHONE 0.3150 0.3150 0.0280 0.0280 0.0000
470 CAROLINA T&T 0.3150 0.5590 0.0280 0.0240 0.0000
471 CENTRAL TELEPHONE 0.3150 0.2844 0.0280 0.0574 0.0000
506 UNITED TELEPHONE-SE (SC) 0.3150 0.3150 0.0280 0.0280 0.0000
567 UNITED TELEPHONE-SE (TN) 0.3150 0.3150 0.0280 0.0280 0.0000
567 UNITED TELEPHONE-SE (VA) 0.3150 0.3150 0.0280 0.0280 0.0000
00 XXXXXX XXXXX XXXXXXX
000 XXX XXXXXX 0.3150 0.3000 0.0280
0.0500 0.06,00
209 PENNSYLVANIA 0.3150 0.3000
0.0280 0.0500 0.0000
661 OHIO 0.3150 0.3000 0.0280
0.0500 0.0000
832 INDIANA 0.3000 0.3000 0.01500 0.0500 0.0000
985 ILLINOIS 0. 3 15 0 0.3000 0.0280
0.0500 0.0000
00 XXXXXX
00 XXX XXXX 0.5400 0.5400
0.0700 0.0700 0.0000
61 PENNSYLVANIA 0.5400 0.5400
0.0700 0.0700 0.0000
84 OHIO 0.5400 0.5400 0.0700
0.0700 0.0000
157 PENNSYLVANIA 0.5400 0.4700
0.0700 0.0000 0.0000
176 PENNSYLVANIA 0.5400 0.5400
0.0700 0.0700 0.0000
302 ALABAMA 0.5400 0.5400
0.0700 0.0700 0.0000
336 FLORIDA 0.5400 0.5400
0.0700 0.0700 0.0000
357 GEORGIA 0.5400 0.4700
0.0700 0.1090 0.0000
402 GEORGIA 0.5400 0.4700
0.0700 0.1085 0.0000
402 KENTUCKY 0.5400 0.8800
0.0700 0.0563 0.0000
COMPANY CONFIDENTIAL
EXHIBIT "B"
U.S. BILLING CONTRACTUAL LEC COST
May 1998
Page 5 of 5
LEC # COMPANY NAME XXXX RENDERINGCALL RECORDS ENHANCED
INTER INTRA INTER INTRA 00 XXXX
XXXXX XXXXX XXXXX XXXXX
00 ALLTEL - CON'T.
453 MISSISSIPPI 0.5400 0.5400 0.0700
0.0700 0.0000
476 NORTH CAROLINA 0.5400 0.2800 0.0700 0.0604 0.0000
517 SOUTH CAROLINA 0.5400 0.5400 0.0700 0.0700 0.0000
665 OHIO 0.5400 0.5400 0.0700 0.0700 0.0000
762 FLORIDA 0.5400 0.0000 0.0700 0.0716 0.0000
850 NORTH CAROLINA 0.5400 0.2800 0.0700 0.0716 0.0000
894 SOUTH CAROLINA 0.5400 0.3600 0.0700 0.0790 0.0000
938 MISSISSIPPI 0.5400 0.4700 0.0700 0.0700 0.0000
1691 ARKANSAS 0.5400 0.5400 0.0700 0.0700 0.0000
1885 MISSOURI 0.5400 0.8200 0.0700 0.0509 0.0000
1965 OKLAHOMA 0.5400 0.5400 0.0700 0.0700 0.0000
2011 OKLAHOMA 0.5400 0.5400 0.0700 0.0700 0.0000
2121 TEXAS 0.5400 0.4700 0.0700 0.0700 0.0000
2153 TEXAS 0.5400 0.4700 0.0700 0.1085 0.0000
4332 GEORGIA 0.5400 0.3500 0.0700 0.0812 0.0000
4425 GEORGIA 0.5400 0.4700 0.0700 0.1085 0.0000
75 CITIZENS ALLTEL II
2354 NEVADA 0.0000 0.0000 0.1275 0.1275 0.2500
4432 OREGON 0.0000 0.0000 0.1275 0.1275 0.2500
4449 ARIZONA 0.0000 0.0000 0.1275 0.1275 0,2500
0000 XXX XXXXXX 0.0000 0.0000 0.1275 0.1275 0.2500
76 CITIZENS XXX XXXXXX
00 XXX XXXX 0.0000 0.0000 0.1275 0.1275 0.2500
157 PENNSYLVANIA 0.0000 0.0000 0.1275 0.1275 0.2500
270 WEST VIRGINIA 0.0000 0.0000 0.1275 0.1275 0.2500
577 TENNESSEE 0.0000 0.0000 0.1275 0.1275 0.2500
4336 TENNESSEE 0.0000 0.0000 0.1275 0.1275 0.2500
81 INDEPENDENT NECA SVC. 0.3000 0.3203 0.2600
0.2244
0.0000
87 GTE CONTEL 0.4700 0.4700 0.7000
0.7000
0.0900
91 CHILLICOTHE TEL. CO. 0.0000 0.0000 0.3000
0.3000
0.0000
92 PACIFIC TELCOM 0.3000 0.3203 0.2600
0.2244
0.0000
93 CENTURY TELEPHONE 0.3900 0.1979 0.1.300 0.1355 0.0000
94 ILLUMINET 0.3750 0.3750 0.2210
0.2210 0.0000
96 COX 0.4200 0.4200 0.01500 0.0500 0.0000
COMPANY CONFIDENTIAL
EXHIBIT "C"
PRICING
Effective July 15, 1998
U.S. Billing Most Favored Processing Fees:
Volume RATE/RCD 1 Year 2 Year 3 Year
0- 250,000 LEC Charge + $0.0525 $0.0525 $0.0525
Next 250,000 LEC Charge + $0.0525 $0.0485 $0.0440
Next 500,000 LEC Charge + $0.0475 $0.0435 $0.0390
Next 1,000,000 LEC Charge + $0.0435 $0.0395 $0.0350
Next 1,000,000 LEC Charge + $0.0405 $0.0365 $0.0320
Next 1,000,000 LEC Charge + $0.0385 $0.0345 $0.0300
Next 2,000,000 LEC Charge + $0.0385 $0.0345 $0.0225
Next 4,000,000 LEC Charge + $0.0385 $0.0345 $0.0185
Over 10,000,000 LEC Charge + $0.0385 $0.0345 $0.0150
USBI's most favored Processing Fees are in addition to the USBI's
contractual LEC Processing Fees as outlined in Exhibit "B" attached hereto
which are calculated monthly as described in paragraph 4.(f) hereof
If Customer elects an initial term of this Agreement of two (2) or three (3)
years, Customer acknowledges and agrees to pay a minimum monthly processing
fee of at least $13,125/month (250,000 records/month times $.0525/record),
for the entire two (2) or three (3) year term of the Agreement.
(2)End User Customer Service Inquiry, Investigation, and Rebate:
USBI will perform End User customer service inquiry, investigation and
rebate for those areas where the LEC billing and collection agreements
provide for such. Customer will be charged a total of $2.50 for each
customer service inquiry, investigation or rebate handled by USBI on behalf
of Customer.
(3)Excessive End User Customer Service Inquiry, Investigation and Rebate:
Customer shall pay an additional fee of three dollars and fifty cents
($3.50) for each End User inquiry, investigation or rebate that exceeds one
percent (1%) of the number of EMI Billing Records processed by USBI on
behalf of Customer for each Library Code each calendar month.
(4)Minimum USBI Processing Fee per Transmission:
For each submission of EMI Billing Records to USBI, Customer shall pay a
minimum USBI Processing Fee per Library Code of five hundred twenty-five
dollars ($525).
(5)Accounts Receivables Reconciliation System - FASTRACK:
Customer shall pay an initial, one-time fee for USBI's accounts receivable
reconciliation system known as FASTRACK. The charge is one thousand five
hundred dollars ($1,500) for the first Library Code and five hundred dollars
($500) for each additional Library Code. There is no charge for weekly
accounts receivable status updates.
COMPANY CONFIDENTIAL
EXHIBIT "D"
MTS CALL COMPLETION CRITERIA
A MTS call is completed if some type of direct communication or hardware or
software answer detection has been established between the originating
person and the terminating location. Collect and third number billed calls
must be verified that the receiving party or third party agrees to accept
the charges for the call. If automated technologies are used, the receiving
party must positively acknowledge the acceptance of the call. In the case of
person-to-person calls, the operator must verify that the receiving party is
the person whom the originating party requested. For other direct dialed,
automated calling card or operator assisted calls, the call shall be
considered completed when the connection is verified by means of hardware or
software detection as required by Federal, state and local regulatory
authorities.
In those cases where the Customer cannot determine the exact time the
terminating person has gone "off hook" (beginning of communication with the
originating party), and Federal, state or local regulatory authorities do
not require hardware or software answer detection, a call shall be
considered to be connected if the originating and receiving parties hold the
connection for more than thirty-six (36) seconds.
Calls for four hundred eighty (480) minutes (8 hours) or more are not
considered valid, completed calls and will not be billed.
Calls to operators, customer announcements, busy signals or ringing shall
not be considered completed calls and shall not be billed.
COMPANY CONFIDENTIAL
EXHIBIT "E"
EXCHANGE MESSAGE INTERFACE (EMI) BILLING RECORD
The following Bellcore EMI billing record formats will be processed by USBI
for the LECs that are capable of billing and collecting for services using
the following EMI billing record format:
RECORDED ID
010101 Domestic Message Telephone Service (MTS) Charge
010132 Domestic Directory Assistance Charge
010201 North American Originated and Billable International Charge
425001 Miscellaneous Recurring and Non-Recurring Service Charge
102203 Pack Header Record
202204 Pack Trailer Record
COMPANY CONFIDENTIAL
EXHIBIT "F"
USBI PROCEDURES FOR END USER CUSTOMER SERVICE
INQUIRIES INVESTIGATIONS AND REBATES
Page 1 of 3
1. For those LEC's whose billing and collection agreements provide for USBI
to provide End User inquiry and resolution, USBI's toll-free "800" number
will appear on the End User's LEC telephone xxxx to be used for resolution
of any USBI issues associated with the End User's xxxx.
At the time of the initial call from an End User, USBI's customer service
representative will access the End User's account. Once the account has been
accessed, the calls or charges in dispute will be determined. If the End
User is disputing any of the following, including, but not limited to:
(a) Denying All Knowledge (DAK) of calls, equipment or service;
(b) Rates; or
(C) Charges for unanswered calls
then an automated internal credit form will be prepared which usually
contains the following information:
(a) Xxxx name and number;
(b) Reason and dollar amount in dispute; and
(C) Copy of the EMI Billing Records being, disputed.
II. All disputes will normally be handled by following the customer's
guidelines or by USBI using best judgement to resolve the dispute. It is the
customer's responsibility to provide to USBI in writing initial guidelines
or changes to existing guidelines.
All inquiries over fifty dollars ($50.00) will be forwarded to USBI's
Investigations Department. Upon receipt of the internal credit form and the
End Users' records in dispute, the following procedures shall be followed:
(A) Notify Customer (via automated fax) that an End User is disputing
calls or charges over $75.00 and that USBI will determine the validity of
such claim. The following information will usually be given:
(1) End User's full name;
(2) Telephone number;
(3) Statement date; and
(4) Amount in dispute.
(B) Confer with the LEC as needed to obtain pertinent information such
as if customer was assigned telephone number at the time of billing, etc.
COMPANY CONFIDENTIAL
EXHIBIT "F"
USBI PROCEDURES FOR END USER CUSTOMER SERVICE
INQUIRIES INVESTIGATIONS AND REBATES
Page 2 of 3
(C) As deemed necessary by USBI, confer with Customer to obtain
pertinent information such as date service was canceled, etc.
(D) Maintain details of conversations when investigating the calls
(i.e., person's name, complete telephone number, date and time of each call).
(E) Notify the End User and the Customer concerning the disposition
of the dispute.
III. The following procedures will be utilized for credit issued through
Xxxx Operating Companies (BOC's) and the Local Exchange Carriers:
(A) An electronic EMI credit record will be submitted with the next
billing submission.
(B) For those situations where an electronic credit cannot be
submitted, an IC/EC memorandum will usually be mailed to the End User's
Local Exchange Carrier for credit toward End User's account if the credit
amount is over seventy-five dollars ($75.00). For amounts less than $75.00,
a check will usually be made payable to the local telephone company, but
forwarded to the End User.
The above procedures for refund checks, electronic EMI credit records and
IC/EC memorandums usually take a total of five (5) Business Days.
IV. A record of all disputes and resolutions will be kept for weekly
customer service reports.
V. All formal and informal regulatory complaints will be handled by USBI
unless USBI authorizes the customer to handle their own. If the regulatory
agency serves both USBI and the customer, the customer is responsible for
their response to the agency. If the customer is permitted to handle their
own regulatory complaints, USBI reserves the right to assume this
function from the customer if they deem necessary to ensure proper handling
and timely responses to the agency. Whether the customer or USBI normally
handles the complaint procedure, USBI reserves the right to make any
decisions regarding credit in response to a complaint.
COMPANY CONFIDENTIAL
EXHIBIT "F"
USBI PROCEDURES FOR END USER CUSTOMER SERVICE
INQUIRIES, INVESTIGATIONS AND REBATES
Page 3 of 3
VI. The USBI policy regarding refunds as related to 42 Records is as follows:
(A) If a customer disputes a fee billed as a 42 Record (i.e., a monthly
reoccurring charge, a membership fee, voice mail service, etc.). USBI will,
to the best of our knowledge, explain the service and how the customer may
have obtained the service. If the customer continues to dispute the service
or states that they are refusing to pay, USBI will refund the 42 Record fee.
(B) In the case of a dispute of an unauthorized switch of long distance
service, not only will the charge for the 42 Record be refunded, but a rate
adjustment to satisfy will also be provided for long distance calls, if one
is requested by the customer.
(C) If the customer wants the service canceled, or if the LOA information is
requested after a refund has been provided by USBI, the customer will be
referred to the carrier.
(D) If the customer disputes a subsequent charge after requesting
cancellation of service from the carrier, credit will be provided to satisfy
the customer.
COMPANY CONFIDENTIAL
EXHIBIT "G"
USBI BAD DEBT PERCENTAGE
for period 04/01/97 - 03/31/98
Page 1 of 2
LEC NAME CHARGE(%)
XXXX OPERATING COMPANIES:
10 XXXXX
0000 XXX XXXXXXX TELEPHONE .0316
9104 NEW YORK TELEPHONE .1415
12 SNET
9147 SOUTHERN NEW ENGLAND N/A
14 XXXX ATLANTIC
9206 NEW JERSEY XXXX .0350
9208 PENNSYLVANIA XXXX .0328
0000 XXXXXXX XXXXX .0000
0000 X&X XX XXXXXXXXXX, X.X. .1089
9212 C&P- OF MARYLAND .0316
9213 C&P OF VIRGINIA .0237
9214 C&P OF WEST VIRGINIA .0230
16 AMERITECH
9321 OHIO XXXX .0308
9323 MICHIGAN XXXX .0308
9325 XXXXXXX XXXX .0306
9327 WISCONSIN XXXX .0309
9329 ILLINOIS XXXX .0306
00 XXXXXXXXXX XXXX
0000 XXXXXXXXXX XXXX .0000
00 XXXX XXXXX
0000 XXXXXXXX XXXX .0000
0000 XXXXX XXXXXXX XXXX .0000
22 SOUTHWESTERN XXXX
9533 SOUTHWESTERN XXXX .0454
00 X.X. XXXX
0000 X.X. XXXX - XXXXXXX .0000
9636 U.S. XXXX - XXXXXXX .0000
0000 X.X. XXXX - XXXXXXX .0732
26 PACTELIS
9740 PACIFIC XXXX .0894
9742 NEVADA XXXX .0358
COMPANY CONFIDENTIAL
EXHIBIT "G"
USBI BAD DEBT PERCENTAGE
for period 04/01/97 - 03/31/98
Page 2 of 2
LEC NAME CHARGE(%)
GTE COMPANIES:
00 XXX XXXXX .0000
00 XXX XXXXX .0000
46 GTE CENTRAL .0605
52 GTE WEST .0598
53 CITIZENS XXX XXX .0000
00 XXX XXXXXX COMPANIES N/A
INDEPENDENTS:
28 TELECOM - CANADA N/A
58 UNITED FLORIDA .0298
62 UNITED MIDWEST .0382
63 SPRINT MID ATLANTIC TELECOM .0344
66 UNITED NORTH CENTRAL .0042
74 ALLTEL .0247
75 CITIZENS ALLTEL II N/A
76 CITIZENS VIA Alltel .0115
81 INDEPENDENT NECA SVC. N/A
91 CHILLICOTHE TELEPHONE COMPANY N/A
92 PACIFIC TELCOM N/A
93 CENTURY TELEPHONE N/A
94 ILLUMINET .0044
96 Cox N/A
COMPANY CONFIDENTIAL
USBI
ADDENDUM "A"
ADVANCED PAYMENT AGREEMENT
THIS ADDENDUM is made 8th day of September 1999 by GenX Communications,
LLC dba Preferred Disc, Plan "Customer"), a Delaware corporation with an office
at 0000 Xxxxxx Xxxxxx, Xxxx X-0, Xxxxx Xxxx, XX 00000 and Billing Concepts,
Inc., a Delaware corporation, dba U.S. Billing - ("USBI") with its principal
offices located 0000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000.
RECITALS
WHEREAS, on or before the date hereof, Customer and USBI entered into a
certain Billing and Information Management Services Agreement (the
-"Customer Contract"), pursuant to which USBI is obligated to provide, among
other things, processing services for the billing and collection of
Customer's qualified MTS telecommunication services through its billing and
collection agreements with certain Local Exchange Companies ("LECs"). Unless
otherwise defined in this Addendum, all defined terms used herein shall have
the meaning given to such terms in the Customer Contract.
WHEREAS, Customer acknowledges that USBI has entered into a certain
Loan and Security Agreement (the "Loan Agreement") with a third-party
lender, and that the terms of this Agreement are subject to the Loan
Agreement. Upon approval of this Addendum and Customer by USBI and its
third-party lender, and pursuant to the Loan Agreement, the third party
lender will provide financing through USBI for the benefit of Customer of
certain accounts receivable of Customer arising from the provisioning of
qualified MTS telecommunication services by Customer to End Users of Customer's
services which are billed and collected from End Users by the LECs
(hereinafter the "Customer Accounts"). The Customer's accounts receivable
are payable by the LECs and are to be acquired by USBI; and
WHEREAS, to facilitate the financing arrangements between its
third-party lender and USBI, as well as to facilitate the financing of the
Customer Accounts, Customer acknowledges and agrees to amend the terms of
the Customer Contract in accordance with the terms and provisions set forth
herein:
NOW, THEREFORE, Customer and USBI, intending to be legally bound,
hereby agree as follows:
1. Amendment of Customer Contract. The Customer Contract is hereby
amended as set forth in this Addendum. This Addendum is incorporated into
and made a part of the Customer Contract, the terms and conditions of which,
unless expressly modified by this Addendum, continue unchanged and in full
force and effect. To the extent that any terms or provisions of this
Addendum are or may be deemed expressly inconsistent with any terms or
conditions of the Customer Contract, the terms of this Addendum shall control.
2. Purchase of Customer Accounts. Commencing immediately after the
date USBI's third-party lender has given its approval of this Addendum and
its approval of Customer, then upon receipt and processing by USBI of those
EMI Billing Records of Customer's qualified MTS telecommunication services
for which Customer desires financing (the "Processed EMI Billing Records"),
USBI shall purchase from Customer, and Customer shall sell, assign, transfer
and convey to USBI, all rights, title and interest of Customer in and to all
Customer Accounts contained on any Processed EMI Billing Records. The
purchase date for Processed EMI Billing Records shall be the date upon which
USBI submits Customer's EMI Billing Records to the LECs for billing and
collection (the "Purchase Date"). USBI shall promptly process Customer's EMI
Billing Records for collection in the same manner and with the same timing
that all EMI Billing Records are processed by USBI under its other customer
contracts.
3. Purchase Price; Financing and Payment.
a. USBI shall pay to Customer as the purchase price for the Customer
Accounts an amount equal to the aggregate face amount thereof of the
Customer's EMI Billing Records submitted to LECs by USBI for billing and
collection, less:
(i) All LEC charges, rejects, unbillables and bad debt deductions;
(ii) All credits and adjustments granted End Users;
(iii) All USBI processing fees and sales taxes, if applicable;
(iv) All financing Service Charges (as defined below); and
(v) Any and all losses, costs or expenses incurred by USBI in
processing or collecting the
Customer Accounts from all previously Processed EMI Billing
Records.
b. With regard to each transmission of Processed EMI Billing Records,
Customer requests that USBI finance under its Loan Agreement with its third-
party lender up to seven percent (70%) of the dollars arising from Customer's
Eligible Accounts (defined as those calls which are transmitted by USBI to
LECs for collection) on such Processed EMI Billing Records, the amount so
financed being the "Initial Payment" to be made to Customer for the Processed
EMI Billing Records and to, be made within five (5) Business Days from the
Purchase Date. However, USBI reserves the right to periodically evaluate the
amount realized from Processed EMI Billing Records and shall have the right
to adjust the amount financed to provide adequate collateral for future
funding. As used herein, the term "Payment Date" shall be the date upon
which Customer is wired the Initial Payment for the Processed EMI Billing
Records, less any bank fees charged for such wire transfer.
C. USBI shall pay Customer the remaining balance of the purchase price
for the Processed EMI Billing Records monthly, net of USBI processing fees,
the service charge or other costs and expenses related to processing or
collecting for the Processed EMI Billing Records being settled. If a
remittance from a LEC is insufficient to pay the aforementioned fees and
costs, Customer shall be responsible therefore, and USBI shall have the
right, but not as its sole remedy, to deduct such amount from the Initial
Payment of the next EMI Billing Records being purchased, or from the
receivables generated from subsequent processing of records for Customer.
4. Service Charge. With respect to each Initial Payment, Customer
agrees to pay to USBI, in addition to the billing and collection processing
fees set forth in the Customer Contract, a service charge ("Service Charge")
at a fluctuating rate per annum which shall from day to day be equal to the
lesser of (a) the Maximum Rate (as hereinafter defined) or (b) a rate
("Contract Rate"), calculated on the basis of the actual days elapsed but
computed as if each year consisted of 360 days, equal to the sum of (i) the
Index Rate (as hereinafter defined) plus (ii) four percent (4.0%). Each
change in such Service Charge will become effective without notice to
Customer on the effective date of each change in the Maximum Rate or the
Index Rate, as the case may be. The term "Index Rate" as used herein, shall
mean a fluctuating interest rate per annum at all times equal to the "Prime
Rate" published in the "Money Rates" table in The Wall Street Journal from
time to time, and if multiple prime rates are published, the highest such
rate. The term "Maximum Rate," as used herein, shall mean at the particular
time in question, the maximum rate on interest which, under applicable law,
may then be charged on the Initial Payment. If such maximum rate of interest
changes after the date hereof, the Maximum Rate shall be automatically
increased or decreased, as the case may be, without notice to Customer from
time to time as of the effective date of each change in such maximum rate.
If applicable law ceases to provide for such maximum rate of interest, the
Maximum Rate shall be equal to eighteen percent (18%) per annum. The Finance
Period shall start on the Payment Date and shall be the entire period of
time until USBI recoups the full amount of the Initial Payment from payments
made by LECs to USBI for Eligible Accounts from the Processed EMI Billing
Records or by payments made by customer.
5. Financing Statements. Customer hereby grants to USBI a first lien
security interest in all of the following, whether presently existing or
hereafter acquired or created, and all proceeds, products, returns,
additions, successions, and substitutions with regard thereto: accounts,
general intangibles, contract rights, chattel paper, documents (including
without limitation, computer records), equipment, inventory, goods, money
fixtures and other assets, including but not limited to the Customer
Accounts and those accounts not acquired by USBI, and agrees to execute and
deliver to USBI duly executed UCC-1 Financing Statements, together with any
and all other necessary instruments, assignments or documents, and agrees to
take such other action as may be required to perfect or continue the
perfection of USBI's first lien security interest in all such assets.
Customer hereby grants to USBI a first lien security interest in and right
of offset with respect to all Customer Accounts to secure all obligations of
Customer to USBI. Customer hereby grants USBI a limited power of attorney to
enforce USBI's right arising under this Agreement and Article 9 of the
Uniform Commercial Code.
6. Reliance. Customer acknowledges that USBI's third-party lender is
relying on the agreements, representations and warranties of Customer contained
in this Addendum in determining whether to provide financing to USBI for the
benefit of Customer.
7. Representations and Warranties. Customer represents and warrants to
USBI with respect to each Customer Account that:
a. Each account receivable assigned and sold to USBI is a genuine
receivable of the Customer, is valid in all respects, is what it purports to
be; and is not evidenced by a judgment;
b. Each account receivable assigned and sold to USBI arises out of
the completed delivery of qualified MTS telecommunication services in the
ordinary course of Customer's business and in accordance with
the terms and conditions of any contracts or other documents
relating thereto;
C. Each account receivable assigned and sold to USBI is for a
specific amount due and owing as reflected on the detailed EMI Billing
Records covering such Customer Account provided by Customer to
d. Such Customer Account is not subject to any offset, lien, deduction,
defense, dispute, counterclaim or any other adverse condition, is absolutely
owing to Customer, and is not contingent in any respect or for any reason
except matters for which discounts, credits or allowances are granted by
Customer in the ordinary course of business consistent with past practices;
e. Customer has not made any agreement with any End Users thereunder
for any deduction thereof, except discounts, credits or allowances which are
granted by Customer in the ordinary course of business;
f. There are no facts, events or occurrences which in any way
impair the validity or enforceability thereof or tend to reduce the amount
payable thereunder from the amount reflected on any EMI Billing Records
thereof,
g. To the best knowledge and belief of the Customer, each End User
generating any Customer Account
(i) had the capacity to contract at the time any contract or
other document relating to the Customer Account was executed and (ii) is
solvent;
h. Customer has no knowledge of any fact or circumstance which
would impair the validity or collectability by Customer of the Customer
Account, and to the best of Customer's knowledge, there are no proceedings or
actions which are
threatened or pending against the End Users thereunder which might result in
any material adverse change in such End User's financial condition or the
collectability of such Customer
Account;
i. All supporting documents and other evidence of Customer
Accounts delivered to USBI are complete, correct, valid and enforceable in
accordance with their terms, and all signatures and endorsements that appear
thereon are genuine, and all signatories and endorsers have full capacity to
contract; and
Barring gross negligence or fraud, USBI shall not be liable for
any damages in connection with or relating to the services to be provided
hereunder, including, but not limited to, special, indirect or consequential
damages.
9. Financial Statements Inspection. Customer shall furnish USBI annual and
quarterly financial statements and other financial information as may be
requested by USBI (as set forth in the attached Exhibits or as requested by
its third-party lender). Financial statements shall be compiled, reviewed or
audited [as required] in compliance with GAAP (Generally Accepted Accounting
Principals) by an independent accounting or auditing firm. Customer will
keep USBI current on this requested financial information for as long as
this Addendum is in effect.
j. No Customer Account is subject to any prohibition or
limitation upon assignment.
8. Limitation of Liability. Barring gross negligence or fraud, USBI shall
not be liable for any damages in connection with or relating to the services
to be provided hereunder, including, but not limited to special, indirect or
consequential damages.
9. Financial Statements Inspection. Customer shall furnish USBI
annual and quarterly financial statements and other financial information as
may be requested by USBI (as set forth in the attached Exhibits or as
requested by its third-party lender). Financial statements shall be
complied, reviewed or audited [as required] in compliance with GAAP
(Generally Accepted Accounting Principals) by an independent accounting or
auditing firm. Customer will keep USBI current on this requested financial
information for as long as this Addendum is in effect.
10. Initial Processing Costs. One thousand five hundred dollars
($1,500) will be deducted from the initial (first) Processed EMI Billing
Record's settlement payments for the initial processing costs incurred and
to be incurred by USBI. This expense is subject to an increase dependent
upon the difficulty in handling the priority position of Customer's existing
lender(s).
11. Construction. This Addendum shall be governed by and construed
under the laws of the State of Texas. The provisions hereof are severable,
and the invalidity or unenforceability of any provision shall not affect or
impair the remaining provisions, which shall continue in full force and
effect. This Addendum shall be binding upon Customer, its successors and
assigns.
12. Maximum Rate. This Addendum and the Customer Contract are intended
to be performed in accordance with, and only to the extent permitted by, all
applicable usury laws. If any provision hereof or of the Customer Agreement
or the application thereof to any person or circumstance shall, for any
reason and to any extent, be invalid or unenforceable, neither the application
of such provision to
any other person or circumstance nor the remainder of the agreement in which
such provision is contained -shall be affected thereby and shall be enforced
to the greatest extent permitted by law. It is expressly stipulated and
agreed to be the intent of USBI to at all times comply with the usury and
other applicable laws now or hereafter governing the amounts payable under
this addendum and the Customer Contract (the "Customer Amounts"). If the
applicable law is ever revised, repealed or judicially interpreted so as to
render usurious any amount called for under this Addendum or the Customer
Contract, or contracted for, charged, taken, reserved or received with
respect to the Customer Amounts, or if any payment by Customer results in
Customer having paid any amount that is determined to constitute interest in
excess of that permitted by law, then it is the express intent of Customer
and USBI that all excess amounts theretofore collected by USBI be refunded
to Customer, and the provisions of this Addendum and the Customer Contract
immediately be deemed reformed and the amounts thereafter collectable
hereunder and thereunder reduced, without the necessity of the execution of
any new document, so as to comply with the then applicable law, but so as to
permit the recovery of the fullest amount otherwise called for hereunder or
thereunder. All sums paid, or agreed to be paid, by Customer for the use,
forbearance, detention, taking, charging, receiving or reserving of the
Customer Amounts or arising under or pursuant to this Addendum and the
Customer Contract shall, to the maximum extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full term
thereof until payment in full so that such sums on account of such Customer
Amounts do not exceed the usury ceiling from time to time in effect and
applicable to such Customer Amounts. In no event shall TEX.REV.CIV.STAT.XXX.
art. 0000 Xx. 15 apply to this Addendum. To the extent that TEX.REV.CIV.STAT.
XXX.xxx. 5069-1.04, as amended, is applicable to this Addendum, the
"indicated rate ceiling" specified in such article is the applicable
ceiling; provided that, if any applicable law permits greater interest, the
law permitting the greatest interest shall apply.
13. Termination. This Agreement may be terminated only upon thirty
(30) days written notice by either USBI or Customer. Termination by Customer
does not terminate the Customer Contract. At USBI's discretion, its
termination of this Addendum may terminate the Customer Contract.
IN WITNESS WHEREOF, Customer and USBI have executed this Addendum as of
the day and year first written above.
Acknowledged, Accepted and Approved:
CUSTOMER:
GenX Communications, LLC dba Preferred Disc. Plan
BY: /s/Xxxx Xxxxxx DATE: 8/5/98
Xxxx Xxxxxx President
(Printed or Typed Name) TITLE
Acknowledged, Accepted and Approved:
Billing Concepts, Inc.
dba U.S. Billing:
BY: /s/Xxxx X. Xxxxxxxx DATE: 9-9-98
Xxxx X. Xxxxxxxx
President and
Chief Operating Officer
