Agreement for the Provision of Billing and Collection Services for Directory Publishers - Dex Media East LLC and Qwest Corp.
AMENDED AND RESTATED
AGREEMENT FOR THE
PROVISION OF BILLING AND COLLECTION SERVICES
FOR
DIRECTORY PUBLISHERS
BETWEEN
DEX MEDIA EAST LLC (FORMERLY SGN LLC)
AND
QWEST CORPORATION
THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT CONTAINS COMMERCIALLY CONFIDENTIAL
INFORMATION THAT MAY BE CONSIDERED PROPRIETARY BY EITHER OR BOTH PARTIES, AND
AGREE TO LIMIT THE DISTRIBUTION OF THE AGREEMENT TO THOSE INDIVIDUALS IN THEIR
RESPECTIVE ORGANIZATIONS WITH A NEED TO KNOW THE CONTENTS OF THE AGREEMENT.
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TABLE OF CONTENTS
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SECTION PAGE
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1. Purpose of Agreement ................................................ 4
2. Scope of Agreement .................................................. 5
3. Responsibilities of Customer ........................................ 5
4. Provision of Billing and Collection Services ........................ 7
5. Developmental Charge(s) ............................................. 8
6. Service Commitment .................................................. 9
7. Customer Prices; Payment ............................................ 9
8. Dispute Resolution .................................................. 10
9. Audit ............................................................... 11
10. Billing Errors and Limitation of Liability .......................... 12
11. Data Retention ...................................................... 14
12. Indemnification ..................................................... 15
13. Taxes ............................................................... 16
14. Purchase of Accounts Receivable ..................................... 18
15. Limitations Period .................................................. 18
16. Term and Termination of Agreement ................................... 18
17. Proprietary and Confidential Information ............................ 19
18. Force Majeure ....................................................... 20
19. Default ............................................................. 20
20. Amendments; Waivers ................................................. 21
21. Assignment .......................................................... 21
22. Notices and Demands ................................................. 22
23. Representations and Warranties ...................................... 23
24. Relationship of Parties ............................................. 23
25. Third-Party Beneficiaries ........................................... 23
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26. Governing Law ....................................................... 23
27. Lawfulness of Agreement ............................................. 23
28. Successors and Assigns .............................................. 23
29. Headings ............................................................ 23
30. Entire Agreement .................................................... 23
31. Miscellaneous ....................................................... 24
Exhibit A Definitions ................................................ A-1
Exhibit B Description of Services .................................... B-1
Exhibit C Price Lists ................................................ C-1
Exhibit D Accounts Receivable Settlement Terms ....................... D-1
Exhibit E Treatment and Collection Policy ............................ E-1
Exhibit F Mechanized Adjustment Records .............................. F-1
Exhibit G Adjustments ................................................ G-1
Exhibit H DPS Billing Policy ......................................... H-1
Exhibit I ASK End User Account Information ........................... I-1
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AMENDED AND RESTATED
AGREEMENT FOR THE PROVISION OF
BILLING AND COLLECTION SERVICES
FOR DIRECTORY PUBLISHING SERVICES (DPS)
THIS AMENDED AND RESTATED AGREEMENT for the Provision of Billing and Collection
Services for Directory Publishing Services (this "Agreement") is entered into as
of this 1st day of September, 2003 (the "Effective Date"), by and between Qwest
Corporation, a Colorado corporation ("Qwest") and Dex Media East LLC (formerly
SGN LLC), a Delaware limited liability company ("Customer") (each a "Party" and
together the "Parties"), acting through their authorized representatives.
WHEREAS, Qwest Dex, Inc. ("Dex"), Qwest Communications International Inc.
("QCII"), Qwest Services Corporation ("QSC") and Dex Holdings LLC ("Buyer") have
entered into that certain Purchase Agreement dated as of August 19, 2002 (the
"LLC Purchase Agreement"), pursuant to which Dex has agreed, subject to the
terms and conditions set forth therein, to (i) contribute certain of its assets
and liabilities to Customer, and (ii) sell all of the outstanding limited
liability company interests of Customer to Buyer following such contribution;
and
WHEREAS, in connection with the LLC Purchase Agreement, Dex, QCII, QSC and Buyer
entered into that certain Purchase Agreement, dated as of August 19, 2002 (the
"LLC II Purchase Agreement"), pursuant to which Dex has agreed, subject to the
terms and conditions set forth therein, to (i) contribute certain of its assets
and liabilities to GPP LLC, a Delaware limited liability company, and (ii) sell
all of the outstanding limited liability company interests of GPP LLC to Buyer
following such contribution on a certain date; and
WHEREAS, in connection with the LLC II Purchase Agreement, Qwest and GPP LLC are
entering into a billing and collection agreement as of even date herewith and on
substantially the same terms and conditions as this Agreement, pursuant to which
Qwest agrees to bill GPP LLC's DPS services to End User accounts within Arizona,
Idaho, Oregon, Montana, Utah, Washington, and Wyoming; and
WHEREAS, in connection with the LLC Purchase Agreement, Qwest and Customer
entered into that certain Agreement for the Provision of Billing and Collection
Services for Directory Publishing Services, entered into as of November 1, 2002
(the "Original B&C Agreement"), and now Qwest and Customer desire to amend and
restate the Original B&C Agreement by entering into this Agreement; and
WHEREAS, Customer intends to purchase from Qwest and Qwest intends to provide to
Customer billing and collection services and certain PAR obligations
(collectively, the "Services"), as further described in Exhibit B, via the use
of ABEC 0575; and
NOW, THEREFORE, in consideration of the mutual benefits accruing to each Party
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby covenant and agree as follows:
1. Purpose of Agreement
A. The purpose of this Agreement is to set forth terms and
conditions pursuant to which Qwest will provide the Services
for Customer's business of publishing telephone directory
products and services consisting principally of searchable
(e.g., by alphabet letter or category) multiple telephone
listings and classified advertisements that are delivered or
otherwise made available to End Users in tangible media (e.g.,
paper directories, CD-ROM) or electronic media (e.g.,
Internet), as presently conducted by Customer. Such products
and services of Customer will hereinafter be referred to
collectively as DPS services.
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B. Qwest agrees to bill Customer's DPS services to End User
accounts within the territory comprised of the seven states of
Colorado, Iowa, Minnesota, Nebraska, New Mexico, North Dakota,
and South Dakota.
C. Upon the Second Closing Date, Qwest and GPP LLC will enter
into an agreement on substantially the same terms and
conditions as this Agreement (including with respect to
pricing) (a copy of the form of which is attached to the LLC
II Purchase Agreement), pursuant to which Qwest will agree to
bill GPP LLC's DPS services to End User accounts within
Arizona, Idaho, Montana, Oregon, Utah, Washington, and Wyoming
for up to the remainder of the term of this Agreement.
2. Scope of Agreement
This Agreement defines the terms and conditions for which Qwest will
provide DPS to Customer and includes the following Exhibits:
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Exhibit A Definitions;
Exhibit B Description of Services;
Exhibit C Price Lists;
Exhibit D Accounts Receivable Settlement Terms;
Exhibit E Treatment and Collection Policy;
Exhibit F Mechanized Adjustment Records;
Exhibit G Adjustments;
Exhibit H DPS Billing Policy; and
Exhibit I ASK End User Account Information.
The above referenced Exhibits are attached hereto and incorporated
herein by reference.
3. Responsibilities of Customer
A. Customer will utilize uniquely designated ABECs, assigned by
Qwest from an authorized list provided by Telcordia
Technologies, for purposes of billing DPS.
B. Prior to submitting any new DPS services for billing, Customer
agrees to prepare and submit the Qwest Billing Service Request
Form (attached hereto as Attachment 1 of Exhibit B) for Qwest
approval, as further described in Exhibit B, Section II.
Customer further agrees to submit, together with a written
Billing Service Request Form, the following documentation: 1)
marketing materials, 2) program description/content materials,
3) subscriber authentication processes utilized for approval,
and 4) any known historical subscriber dispute and Adjustment
activity information.
C. For each DPS Billing Transaction submitted to Qwest for
billing, Customer will provide as part of such Billing
Transaction, pertinent data for presentation on the End User
bill with the appropriate level of detail to ensure the
presentation of the charge/credit on the bill is a true
representation of the transaction in all material respects.
Without limiting Customer's obligations as set forth in the
previous sentence, for each DPS Billing Transaction submitted
to Qwest for billing, Customer will provide the following
information in order to ensure the presentation of the
charge/credit on the bill is a true representation of the
transaction with respect thereto: 1) service descriptions
and/or program names; 2) the date the transaction took place;
3) the amount of the transaction (including appropriate
tax(s); and 4) duration of the transaction for time-sensitive
billing. Further, at the reasonable request of Qwest, Customer
agrees to provide Qwest with billing details that accurately
identify the transaction was actually initiated and authorized
by the End User.
D. Customer agrees to identify, properly represent and submit DPS
Billing Transactions to Qwest in such a way that the
presentation of such Billing Transactions on the End
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User's bill is a true representation of the transaction, as
further specified in Section 3.C above.
E. Customer agrees to submit DPS Billing Transactions to Qwest
with any appropriate taxes: 1) combined "bundled" with the DPS
charge; or 2) as a separate Billing Transaction amount, as set
forth in Section 13 of this Agreement. Further, Customer will
have the responsibility of setting the appropriate tax
exemption indicator (Indicator 27) correctly within each
Billing Transaction.
F. Customer agrees that Qwest, as soon as reasonably practicable,
will print a disclaimer on Customer's portion of the bill that
advises End Users that failure to pay for DPS charges billed
within the Qwest shared-bill will not result in the
disconnection of the End User's local telephone service, in
accordance with federal and state Truth in Billing regulatory
rules.
G. Customer will use commercially reasonable efforts at all times
to (i) give prompt, courteous, and efficient service to End
Users, (ii) act honestly and fairly in all dealings with End
Users, and (iii) intentionally do nothing reasonably likely to
discredit, dishonor, or in any manner injure the reputation of
Qwest or the Services covered by this Agreement and the
quality image associated with Qwest or such Services.
H. Customer will use commercially reasonable efforts to promptly
and efficiently respond to and resolve End User billing
inquiries, including providing toll-free access to
customer-service locations and adequate facilities and
personnel to handle such inquiries.
I. Customer will exercise commercially reasonable efforts not to
submit to Qwest any Billing Transactions ninety (90) days or
greater after the date the transaction occurred (hereinafter
"old Billing Transactions"). Qwest reserves the right to
reject and return old Billing Transactions to Customer as
Unbillable.
J. Customer will exercise commercially reasonable efforts to not
submit Billing Transactions to Qwest for billing on public
access line ("PAL") accounts. Qwest reserves the right to
reject and return such Billing Transactions to Customer as
Unbillable.
K. Customer grants Qwest a non-transferable, revocable license to
use Customer's tradename and logo (the "Licensed Property") in
connection with the provision of the Services hereunder. Qwest
will have the right to use the Licensed Property on each Page
of an End User's bill that contains Customer's charges.
Customer will provide Qwest with a photo-quality reproduction
of its logo for printing on the End User bill. In addition,
Qwest will have the right to use the Licensed Property in
connection with an informative message to the End User
defining the relationship between Qwest and Customer. Subject
to Section 4.D, Qwest will be required to comply with
Customer's reasonable branding requirements as in effect from
time to time with respect to Customer's Licensed Property.
L. Customer represents and warrants that it is not a
"telecommunications carrier" (as defined under the
Communications Act of 1934, as amended by the
Telecommunications Act of 1996) within any Qwest Region.
M. Customer will provide to Qwest in a timely manner all End User
billing information necessary to permit Qwest to provide the
Services. Such information will be provided in a format that
is mutually agreed upon by Qwest and Customer. In addition, in
the event any reporting obligations or requirements are
imposed upon Qwest by any third party or regulatory agency in
connection with this Agreement or the Services, each
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Party agrees to cooperate with the other Party, as reasonably
requested, in complying with such obligations and
requirements.
N. If Qwest experiences a 15% or greater increase in volume of
End User disputes (as measured at the end of any calendar
month against the monthly average of the immediately preceding
six (6) months) relating to Customer's DPS services, Customer
will use commercially reasonable efforts to take such action
as is necessary to promptly remedy such volume increase.
O. If Customer's DPS Adjustment activity increases by at least
15% (as measured at the end of any calendar month against the
monthly average of the immediately preceding six (6) months),
Customer will use commercially reasonable efforts to take such
action as is necessary to promptly remedy such Adjustment
activity increase.
4. Provision of Billing and Collection Services
A. Qwest agrees and acknowledges that, subject to the various
terms and conditions contained herein: (i) it is undertaking
the various Services with respect to Customer's properly
submitted DPS billing requests hereunder, as an agent for, and
on behalf and for the benefit of, Customer; and (ii) all
right, title and interest in and to Customer's Account
Receivables (including all collections and proceeds thereof)
will continue to be owned by Customer until such Account
Receivable is purchased by Qwest pursuant to and in accordance
with Exhibit D hereto.
B. Services provided under the terms of this Agreement are
contingent upon a shared Qwest End User bill in which Qwest is
the provider of local telephone service (subject to the
successor provisions contained herein).
C. Qwest interstate and intrastate Services will be provided in
accordance with the terms and conditions of this Agreement.
D. Except as otherwise provided herein, presentation of
Customer's portion of the bill will be in Qwest's standard
format, as in effect from time to time, for inclusion of third
party Billing Transactions with respect to content, including,
but not limited to, logos, bill format, type of Billing
Transactions, Market Messages and relationship to others
within the same bill.
E. Services will be billed to Customer via a monthly B&C Invoice
(as defined in Section 7.B hereof) and will be calculated
utilizing one or a combination of the following pricing
methodologies, as further described in Exhibit C:
1. Volume-sensitive recurring pricing (billing volumes
multiplied by a set price);
2. Flat-rated recurring pricing; and/or
3. Non-recurring Developmental Charges.
F. In the event of a Governmental Entity order or other directive
that may cause Qwest an increase in the cost of providing
Services, Qwest reserves the right to allocate developmental
costs associated with implementing the order across all
affected customers, and/or to modify its rates for Services
retroactive to the effective date of such order or other
directive. Qwest will use commercially reasonable efforts to
deliver to Customer thirty (30) days' advance notice of such
allocation and other reasonable information relating to such
order or other directive. In the event of such an increase in
costs, Customer reserves the right to terminate this Agreement
(or, in the case of such an order or other directive that
applies solely to one or more of Customer's service areas,
Customer may terminate this Agreement with respect to such
affected service area(s)) upon thirty (30) days' written
notice to Qwest. Customer must exercise its right
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to terminate this Agreement in accordance with this paragraph
within ninety (90) days after Customer's receipt of notice
from Qwest of such increase in costs.
G. On an annual basis, Qwest will provide End Users with
information relating to their billing rights for DPS services,
in accordance with FCC and FTC guidelines. Customer agrees to
pay Qwest for a percentage of costs associated with providing
End Users with such statement. The percentage will be
determined by calculating the annual volume of all DPS Billing
Transactions for all End Users against the annual Billing
Transaction volumes for Customer. Qwest will calculate
Customer's annual Billing Transaction volumes using their
Billing Transaction data billed in the preceding twelve (12)
months. Qwest will determine a pro-rata percentage of the
statement's cost across all affected customers.
5. Developmental Charges
A. Qwest has three distinct operating regions, Central, Eastern
and Western Regions, (hereinafter each operating region will
be individually referred to as a "Qwest Region").
B. Customer acknowledges and agrees that, pursuant to the terms
and conditions of the LLC Purchase Agreement, it is
responsible for paying the initial set-up cost for the
implementation for each Customer ABEC and the PARS in the
manner contemplated by Exhibit D. Customer further
acknowledges and agrees that an additional set-up charge will
apply for the implementation for each, if any, additional
billing identifiers that are implemented in any Qwest Region
at Customer's request (each a "Developmental Charge").
C. All Developmental Charges resulting from Custom Request work,
as set forth in Exhibit B, Section II, initiated and
authorized by Customer, will be due and payable to Qwest at
the then current rates (unless otherwise agreed by the
Parties) as follows:
(i) if such Developmental Charges are equal to or
less than one hundred and fifty thousand dollars
($150,000), then Customer will pay all such
Developmental Charges in advance within thirty (30)
days after Qwest has agreed to implement the request;
and
(ii)if such Developmental Charges are greater than
one hundred and fifty thousand dollars ($150,000),
then Customer will pay (a) 50% of such Developmental
Charges (the "Initial Payment") in advance within
thirty (30) days after Qwest has agreed to implement
the request, (b) 25% of such Developmental Charges
within thirty (30) days after the date of the Initial
Payment and (c) the remaining 25% of such
Developmental Charges within sixty (60) days after
the date of the Initial Payment; provided, however,
that 100% of the Developmental Charges will be paid
no less than thirty (30) days prior to the project's
implementation date.
6. Service Commitment
Customer understands and agrees that Qwest requires an annual minimum
(hereinafter "Service Commitment") in the amount of $65,000.00 for each
applicable Qwest Region, in recurring Service charges for each ABEC
that is utilized for billing Customer's DPS services. Such Service
Commitment is required for Customer's Actual Charges (as defined
herein) incurred. For purposes of this Section, the term "Actual
Charges" is defined as any recurring and/or non-recurring charges
incurred after the initial set-up charges. The Service Commitment will
be due and payable as follows:
A. If the total combined Actual Charges incurred by Customer for
all active ABECs, across all Qwest Regions, do not meet or
exceed the Service Commitment in a given
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calendar year, then Qwest will conduct a true-up for that year
after December actuals are billed on the January B&C Invoices.
If Customer has not received Services from Qwest under a
Billing and Collection Services agreement for a full calendar
year at the time the true-up is performed, then a proration
will be applied to the actual number of full months for which
Customer has received Services from Qwest.
B. Each year during the term of this Agreement, Qwest will
invoice Customer by the end of the second quarter of the
following year for the difference between the total Service
Commitment due and the Actual Charges incurred by Customer
across all Qwest Regions during the previous calendar year.
Excess Actual Charges from one or more Qwest Region(s) may
satisfy any amounts owing in one or more Qwest Region(s) for
the same year.
C. Upon termination of this Agreement, the Service Commitment
will be prorated using the number of days beginning with the
end of the previous settlement period to the actual date of
termination. Qwest will invoice Customer for the difference
between the total Service Commitment due and the Actual
Charges incurred by Customer across all Qwest Regions. Such
amount will be invoiced to Customer and is due and payable in
accordance with the provisions of Section 7 below.
D. If termination of this Agreement occurs prior to the
termination date specified in Section 16.A of this Agreement,
Qwest will conduct a true-up as follows: 1) Qwest will prorate
the Service Commitment for the period from the Commencement
Date to the date of termination; and 2) will calculate the
difference between the total Service Commitment due and the
Actual Charges incurred by Customer across all Qwest Regions.
Such amount will be invoiced to Customer and is due and
payable in accordance with the provisions of Section 7 below.
7. Customer Prices and Payment
A. Prices
All Services provided pursuant to this Agreement will be
provided at the prices specified in Exhibit C.
B. Invoices
Services will be billed to Customer via a separate statement
(an "Invoice") for each ABEC established to bill each of
Customer's ABECs, utilizing the prices set forth in Exhibit C.
To the extent that the Parties do not actually execute this
Agreement on the first day of the month in which the Effective
Date occurs, the invoices for that first month of Services
will be prorated to reflect the commencement of Services on
the Commencement Date.
C. Payment of B&C Services
1. Customer's payment for Services will be due on the
payment due date reflected on the Invoice unless such
date is not a Business Day, in which case payment
will be due on the next Business Day (the "Payment
Date").
2. Any payment received by Qwest for Services rendered
after the Payment Date or any payment received in
funds that are not immediately available to Qwest on
the Payment Date, will be subject to a late payment
penalty. The late payment penalty will be the portion
of the amount due Qwest received after the Payment
Date times a late factor of 0.000310 per day
compounded daily for the number of days from the
Payment Date to and including the date that Customer
actually made the payment to Qwest, which would
result in an annual percentage rate of twelve
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percent (12%). The late payment penalty will be
billed in the Detail of Late Payment Charges section
of the invoice.
3. Any late payment resulting from bank error will not
be subject to the late payment penalty provided that
Customer can verify that it was not at fault. It is
the responsibility of Customer to notify the banks
involved for resolution of the bank error.
4. The provisions of Section 8 of this Agreement will
govern any dispute associated with a Customer
payment. Should the dispute not be resolved by the
Payment Date of the amount due, Customer will,
notwithstanding the continuing existence of the
dispute, pay the billed amount in accordance with the
provisions of this Agreement. Payment of the billed
amount does not preclude the claiming Party from its
right to have claim against the other Party for
reimbursement until the dispute is resolved.
8. Dispute Resolution
Any claim, controversy or dispute between Qwest and Customer, other
than any claim, controversy or dispute in which a Party seeks equitable
relief, will be settled as follows:
A. All disputes arising out of this Agreement between the Parties
with respect to any subject listed in the preceding paragraph
will be escalated through normal business procedures to the
officer level prior to the commencement of any arbitration
proceeding.
B. Any claim, controversy or dispute between the Parties will be
resolved by arbitration in accordance with the Federal
Arbitration Act, 9 U.S.C. 1-16. A retired judge or a
practicing attorney under the rules of the American
Arbitration Association will conduct the arbitration. The
arbitration will be conducted in Denver, Colorado. The
arbitrator's decision will be final and may be entered in any
court with jurisdiction. Each Party will be responsible for
its own costs.
9. Audit
A. For purposes of this Section, an audit will mean a Customer
requested comprehensive review (hereinafter "Audit") of a
Service, except as cited in paragraph F of this Section. Such
Audit may encompass one (1) or more departments. Customer may
conduct one (1) Audit during each year of the term of this
Agreement over the Qwest Regions in which Qwest is billing for
Customer under this Agreement; provided, however, that if an
Audit uncovers a discrepancy in excess of ten percent (10%),
then Customer will be entitled to another Audit within that
one (1) year period. If an Audit is requested in one (1) or
more Qwest Regions, it will be counted as one (1) Audit.
B. Both Parties agree that the Audit will be limited to a
statistically valid sample with a ninety percent (90%)
confidence level and be further limited to the exact subject
matter outlined in the written notification, as described in
paragraph E, below. All Qwest expenses incurred during the
Audit, including, but not limited to, investigative work,
extraction of data and travel, will be shared equally by the
Parties.
C. At such time as Customer desires to expand an Audit beyond a
ninety percent (90%) confidence level, Customer agrees to pay
all of Qwest's reasonable expenses for the incremental Audit
activities required, including, but not limited to, account
extraction, masking, analyzing accounts, and other Audit
activities, at the rates set forth in Exhibit C, Consulting
Services.
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D. At such time as an Audit is requested, the Parties will share
equally all expenses associated with hiring a single
independent auditor to perform the Audit, provided, however,
that if the Audit proves a discrepancy in excess of fifteen
percent (15%) in favor of Customer, Qwest will pay all such
expenses. Prior to performing an Audit, the independent
auditor will be required to sign a joint non-disclosure
agreement with Customer and Qwest.
E. To initiate an Audit, Customer will provide Qwest with written
notice of its intent to Audit as well as the specific
requirements of the Audit. Such requirements will identify:
1. the exact Service to be audited;
2. the desired start date;
3. the desired Audit location;
4. Customer's representatives; and
5. specific materials to be reviewed, i.e.,
a. number of accounts;
b. type of accounts;
c. Billing Transaction detail; and
d. time period of data to be reviewed.
F. After the Parties have agreed on the specific details of an
Audit, including all requirements, a detailed time and cost
estimate will be prepared by Qwest in accordance with the
prices specified in Exhibit C, Consulting Service.
G. The independent auditor will have the right, on behalf of
Customer, to review all such records and accounts as may,
under recognized or generally accepted accounting practices,
or as otherwise will be reasonably necessary for the
completion of the Audit, contain information on Customer's End
User accounts and Services. Qwest will cooperate with all
reasonable requests of the independent auditor and provide as
promptly as reasonably practicable all information relevant to
such request (subject to the other provisions of this
Agreement including Section 9.C and the remainder of this
Section 9.G). All information reviewed by the independent
auditor is considered Confidential Information as such term is
defined in Section 17 hereof. Qwest will provide for review
extracts or masked data containing information pertinent only
to Customer. Qwest will not provide for review portions of
source documents that contain information relating to other
entities for which Qwest is providing Services.
H. Upon completion of the Audit, corrective action, if any, will
be initiated within thirty (30) days of the mutually agreed
upon resolution. Any Qwest liability for Services disclosed by
the Audit will result in an adjustment, which will be limited
in accordance with the provisions of Section 10.
I. All costs incurred by Qwest when Qwest participates on behalf
of Customer during the course of an Audit of Customer ordered
by a Governmental Entity will be the responsibility of
Customer. Prior to Qwest's participation in a third party
Audit, a detailed estimate will be prepared, based upon
Customer's written notice, in accordance with the terms and
prices set forth in Exhibits B and C respectively, Consulting
Services. The estimate will be valid for a period of thirty
(30) days from the date the estimate is delivered to Customer.
Unless Qwest is ordered to conduct the Audit by a court or
regulatory authority, both Parties must approve the estimate,
and any subsequent revisions, in writing, prior to Qwest
performing such services or Customer incurring any costs.
J. Notwithstanding the foregoing Audit provisions, Qwest will
provide Customer and its representatives (including financing
providers), during normal business hours and as soon as
commercially practicable after reasonable written request
during the Term, with access to review and discuss the books
and records and other information and
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personnel related to Customer's Account Receivables hereunder,
subject in any event to all applicable law and confidentiality
provisions.
10. Billing Errors and Limitation of Liability
A. Customer and Qwest agree to use commercially reasonable
efforts to provide each other verbal notification immediately
upon discovery of billing errors followed by written
notification within ten (10) Business Days. Such written
notification will contain detailed information to aid in
identifying the cause of the billing error and its correction.
Qwest agrees to use commercially reasonable efforts to correct
billing errors within thirty (30) days of notification (by
Customer) or discovery (by Qwest). Where meeting the thirty
(30) day objective is not possible, Qwest will notify Customer
in writing of the expected resolution date.
B. Qwest makes no warranties, express or implied, as to any
Service provided hereunder, except as expressly provided
herein. Without limiting any representation or warranty as
expressly provided herein, Qwest specifically disclaims any
and all implied warranties, including without limitation, any
implied warranties of merchantability, fitness for a
particular purpose, or title or non-infringement.
C. Subject to the limitations set forth in Section 10.G and
Section 18, if Qwest, directly due to its negligence or
willful misconduct, fails to bill Customer's Billing
Transactions, the Parties agree as set forth below in this
Section 10.C.
1. Qwest will promptly reprocess and bill the Billing
Transactions.
a. In cases where the rebilling would occur within one-hundred
and eighty (180) days from the initial receipt of the Billing
Transaction and Qwest reasonably determines that such
reprocessing is unfeasible from an economic, technical or
marketing perspective, Qwest will pay to Customer the amount
determined by applying the formula set forth in Section
10.C.2. Such payment will be made to Customer within thirty
(30) days from date of determination not to reprocess; and
b. In cases where the rebilling would occur more than
one-hundred eighty (180) days after such billing would
normally have occurred, such rebilling will be performed only
upon the mutual agreement of the Parties. Absent such
rebilling of Billing Transactions, Qwest will pay to Customer
the amount determined by applying the formula set forth in
Section 10.C.2. Such payment will be made to Customer within
thirty (30) days from the date of mutual agreement not to
rebill. If the Parties determine that reprocessing will not be
done, Qwest will be liable to Customer for the actual revenue
associated with the Billing Transactions not processed; and
2. If Qwest cannot bill and Customer cannot resubmit such Billing
Transactions, Qwest will estimate, in cooperation with
Customer, the volume of such Billing Transactions and
associated revenue, based on the most comparable previously
known values, less Uncollectibles and Adjustments. Where the
most comparable values are unknown, the estimated revenue
associated with such unbilled Billing Transactions will be
mutually agreed upon. Qwest will pay to Customer an amount
equal to the estimated revenue associated with such unbilled
Billing Transactions, less Adjustments, Uncollectibles and
Bill Production charges, commensurate with such revenue.
Payment to Customer will be made within thirty (30) days from
the date of determination of such amount.
3. For the purposes of this Agreement, if Qwest prints a bill
that includes a Billing Transaction that complies with Section
4.D, and deposits the bill with the United
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States Postal Service, it will be deemed to have "billed" the
Billing Transaction contained on such bill.
D. Subject to and except as set forth in Section 10.C, Qwest's
total liability for breach, non-performance or inadequate
performance of its obligations hereunder and Customer's sole
and exclusive remedy for any loss, cost, claim, injury,
liability, or expense, including reasonable attorneys' fees
(collectively, "Losses"), regardless of theory, for the
following occurrences, will be limited to the lesser of the
amounts paid by Customer hereunder, or the amount of actual
damages incurred measured and further limited as follows:
1. If Qwest, due to gross negligence or willful
misconduct, fails to collect or perform collection
activities of Customer's End User Accounts resulting
in increased net bad debt, Qwest's total liability
and Customer's sole and exclusive remedy for any
Losses resulting from this failure to perform,
regardless of theory, will be limited to the
associated actual price of the Bill Production
charges paid by Customer for those uncollected
accounts; and
2. If Qwest, due to its gross negligence or willful
misconduct, fails to perform or negligently performs
any other Service specified in this Agreement,
Qwest's total liability and Customer's sole and
exclusive remedy for any Losses resulting from this
failure to perform, regardless of theory, will be
limited to the associated actual price of the
Services negligently performed or not performed
(including, without limitation, any indirect damages
payable by Qwest to a third party).
E. Customer's liability to Qwest (as distinct from Customer's
obligation to pay for Services provided pursuant to this
Agreement) for any Losses, regardless of theory, will be
limited to the amount of actual damages incurred by Qwest
(including, without limitation, any indirect damages payable
by Qwest to a third party).
F. Qwest assumes no liability for, and Customer will be solely
responsible and liable with respect to, the accuracy of
Billing Transactions submitted by Customer and provided by
Customer to Qwest for billing.
G. Notwithstanding anything in this Agreement to the contrary, in
no event will Qwest be liable for any errors or Losses caused
by any inaccurate or incomplete Customer instructions, whether
written or verbal, associated with Customer requested changes,
or by Customer's failure to comply with Section 3.D.
H. In no event will either Party be liable to the other for any
claim or cause of action requesting or claiming any
incidental, consequential, special, indirect, statutory,
punitive or reliance damages. Any claim or cause of action
requesting or claiming such damages is specifically waived and
barred, whether such damages were foreseeable or not or a
Party was notified in advance of the possibility of such
damages, unless such claim or cause of action is part of any
claim for indemnification in accordance with Section 12
hereof. Damages prohibited under this Agreement will include,
without limitation, damage or loss of property or equipment,
loss of profits, revenues or savings, cost of capital, cost of
replacement services, opportunity costs, and cover damages.
I. In the event the Parties cannot agree that reprocessing is
feasible or cannot agree on a revenue settlement, or cannot
agree on any other issue associated with this Section, the
Parties agree to utilize the provisions of Section 8 above to
resolve the dispute.
J. Qwest assumes no liability for any Customer-calculated and
applied taxes with respect to DPS Billing Transactions or on
any taxes applied to Qwest-issued Adjustments of Customer
Billing Transactions.
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11. Data Retention
Customer agrees to retain copies of all files transmitted or in any
other fashion forwarded to Qwest for a minimum of one hundred and
eighty (180) days after date of original transmission to Qwest.
Customer further agrees to retransmit or re-forward files upon request
of Qwest at no cost to Qwest. Customer will exercise commercially
reasonable efforts to retransmit or re-send such files no later than
five (5) Business Days from receipt of a request from Qwest. However,
in the event Qwest cannot receive the original transmission due to
transmission system failure, improperly formatted data on the file, or
other reasons related to Customer, Customer will exercise commercially
reasonable efforts to immediately retransmit the file upon correction
of the problem causing the failure. The Parties agree that Customer
will exclusively and solely own all information of the End Users that
is transmitted hereunder, together with all aggregated or generated
data and compilations solely containing such information and generated
hereunder, and such information will be subject to Section 17, other
than those components of such information provided to Customer under
the List License Agreement for the Use of Directory Publisher Lists and
Directory Delivery Lists of even date herewith by and between Qwest and
Customer, as the same may be amended, modified or supplemented from
time to time.
12. Indemnification
A. Subject to the limitations set forth in Section 10, each Party
will indemnify (the "Indemnifying Party") and hold harmless
the other Party (the "Indemnified Party") and its directors,
officers, employees, affiliates, agents and assigns from and
against any and all Losses directly or indirectly based upon,
arising from or resulting from such Party's failure to perform
any of its obligations under this Agreement.
B. Customer will, except to the extent of Qwest's gross
negligence, fraud or willful misconduct, indemnify and hold
harmless Qwest, from and against any Losses awarded to or
assessed by third parties, directly relating to or arising out
of Qwest's billing of Customer's Billing Transactions,
including but not limited to claims of End Users and claims,
complaints or proceedings of any Governmental Entity (it being
agreed and understood by the Parties that no indemnification
will be made under this Section 12.B for Losses arising out of
any claims asserted against Qwest for its billing or other
business activities generally which is not specifically
attributable to Qwest's billing of Customer's Billing
Transactions).
C. The Indemnified Party will notify the Indemnifying Party
promptly in writing of any written claims, lawsuits, or
demands by third parties for which the Indemnified Party
alleges that the Indemnifying Party is responsible under this
Section and, at the request of the Indemnifying Party, 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.
D. The Indemnifying Party will not be liable under this Section
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.
E. Under the terms of this Agreement, Qwest may provide to
Customer certain information regarding Customer's subscribers.
Qwest is releasing to Customer such information based on
Qwest's first-hand knowledge of its own experiences with the
End-User involved. Customer agrees to defend, indemnify and
hold Qwest harmless from and against any Losses, regardless of
theory, arising out of or related to the release of any
Customer subscriber information by Qwest to Customer of a type
that is
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not otherwise customarily released by Qwest to its other
billing and collection customers.
F. Customer will defend, indemnify and hold harmless Qwest from
and against any Losses relating to or arising from the
calculation and application of taxes upon the receipt of
Customer's Billing Transactions or the application of taxes on
Qwest-issued Adjustments of Customer's Billing Transactions.
13. Taxes
A. General Provisions
1. Customer will be liable for all Customer Taxes. "Customer
Taxes" will be defined as: (i) all state and local sales, use,
value-added, gross receipts, foreign, privilege, utility,
infrastructure maintenance, property, federal excise and
similar levies, duties and other similar tax-like charges
lawfully levied by a duly constituted taxing authority against
or upon the Customer's services provided to its End Users; and
(ii) tax-related surcharges or fees that are related to the
Customer's services provided to its End Users and authorized
by applicable tariffs. However, Customer will not be liable
for any Taxes imposed on or measured by the net income or net
worth of Qwest (including the Washington State Business and
Occupation Tax).
2. Customer understands and agrees that Qwest is merely providing
Services with respect to the billing and collection of amounts
owed to Customer by End Users and Customer Taxes hereunder.
Qwest will not report these billings as its own receipts for
gross receipts tax purposes or any other tax purpose. Qwest
will have no responsibility for the preparation or filing of
returns or payments of Customer Taxes other than as required
by law. Qwest will not retain or be entitled to receive from
Customer any statutory fee or share of Customer Taxes to which
the person collecting such Customer Taxes is or may be
entitled to under applicable law.
3. Customer will be solely responsible for the computation,
reporting, and payment of all Customer Taxes and surcharges
applicable to the services provided by Customer to its End
Users and will be solely responsible for separately
identifying the applicable Taxes for its End Users. Where
applicable, Customer agrees to populate the appropriate
indicators to advise Qwest that the DPS Billing Transaction is
tax-exempt or that all applicable taxes have been included in
the Billing Transaction amount or submitted in a separate
Billing Transaction.
4. Any communications from End Users relating to Customer Taxes
will be the responsibility of Customer. Customer will respond
promptly to all complaints lodged by End Users regarding
Customer's treatment. All determinations as to the removal,
addition, or adjustment of Customer Taxes to be billed to End
Users will be the responsibility of Customer. To the extent
Adjustments are made by Customer, with respect to Customers'
DPS services billed by Qwest under this Agreement, such
Adjustments will include all applicable federal, state and
local taxes or tax related items. All communications with
taxing authorities regarding Customer Taxes applicable to
Customer's transactions will be the responsibility of
Customer. Any communication Qwest receives from an End User or
taxing authority regarding Customer Taxes will be referred
promptly to Customer.
5. In the event any federal, state, or local laws, court orders,
or agency orders, rules, or regulations direct a change to the
billing or reporting of taxes, or bill presentation of taxes,
and such change necessitates a billing system modification,
Customer will be required to pay for such modification.
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6. In the event that Customer has requested a change in Customer
Tax procedures and no change has been implemented due to the
inability of Qwest and Customer to agree upon Customer
reimbursing Qwest for the cost of such changes, any audit
assessment related thereto will not be deemed to be a willful
or negligent failure of Qwest to perform its contractual
obligations hereunder.
7. Customer will be liable for all applicable Service Taxes.
"Service Taxes" will be defined as: (i) all state and local
sales, use, value-added, gross receipts, foreign, privilege,
utility, infrastructure maintenance, property, federal excise
and similar levies, duties and other similar tax-like charges
lawfully levied by a duly constituted taxing authority against
or upon the Services performed by Qwest under this Agreement;
and (ii) tax-related surcharges or fees that are related to
the Services performed by Qwest under this Agreement and
authorized by applicable tariffs. However, Customer will not
be liable for any Taxes imposed on or measured by the net
income or net worth of Qwest (including the Washington State
Business and Occupation Tax). The cost of Service Taxes is not
part of the price agreed upon for Services under this
Agreement and will be in addition thereto.
8. All audit adjustments to Service Taxes, associated interest
and penalties will be the liability of Customer. Should any
federal, state or local jurisdiction determine that any such
additional Service Taxes are due by Qwest as a result of
Qwest's performance of any obligation under this Agreement,
Qwest will notify Customer within ten (10) days after Qwest
receives a formal assessment from a taxing jurisdiction for
any additional Service Taxes. Customer will have the
opportunity to advise Qwest in the response to said
assessment. Absent receipt of a written response within ten
(10) days after mailing of the notice, Qwest may elect at its
sole discretion to pay the assessment and obtain reimbursement
from Customer. Customer will pay Qwest within thirty (30) days
after the date Qwest provides Customer a copy of such
assessment and payment.
9. In the event Qwest notifies Customer of an assessment and
Customer wishes to appeal such assessment, Qwest agrees to
reasonably cooperate with Customer in any defense of such
claim or liability by: 1) providing documentation in its
possession and control that is reasonably related to the
provision of Services and for which a claim of indemnification
is made by Qwest hereunder, 2) making personnel available as
is reasonably necessary for deposition or testimony at the
trial or hearing in any action brought for which a claim for
indemnification is made by Qwest hereunder, and 3) authorizing
Customer to defend in and for the name of Qwest any action
brought by a taxing jurisdiction regarding the Service Taxes.
All reasonable costs incurred by Qwest in the provision of
these and other requested services will be at the expense of
Customer, including the payment of any tax, interest and
penalties necessary to pursue an appeal against an audit
assessment.
B. Taxes - Indemnity and Recourse:
1. Customer will indemnify, hold harmless, and defend (at
Customer's expense) Qwest from any Customer Tax, and any
Losses associated therewith, relating to or arising out of
Customer's failure (to the extent not attributable to a
negligent act or omission of Qwest) to pay any Customer Tax or
file any return as required by law or to comply with any
applicable tax laws or regulations, in accordance with this
Agreement. In the event Qwest is assessed any Customer Taxes
imposed by reason of this Agreement, Customer will be liable
for all such taxes and the cost of defense of such assessment.
2. Qwest will indemnify, hold harmless, and defend (at Qwest's
expense), Customer from and against any Losses arising from
additional penalties incurred by Customer as a result of the
grossly negligent failure of Qwest to provide Customer
accurate and
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complete information in relation to DPS billing in accordance
with the terms of this Agreement.
3. The obligation of Qwest and Customer with regard to any
indemnity or reimbursement pursuant to this section will
expire upon the later of thirty (30) days after: 1) the
expiration of all applicable statutes of limitations on any
potential or actual obligation or liability of Qwest and/or
Customer, 2) the entry of a non-appealable final order in a
court of law or administrative agency in any action brought
which claims or alleges that Qwest or Customer owes any such
taxes to the taxing jurisdiction, or 3) payment to the taxing
jurisdiction under an agreement entered into with such taxing
jurisdiction in full settlement for any and all liabilities
which are, or may be alleged to be, due and payable with
respect to this Agreement.
14. Purchase of Accounts Receivable
Qwest will purchase from Customer its Accounts Receivable arising from
bills issued by Qwest to End Users. The purchase of Accounts Receivable
will be limited to Amounts Due Customer (as described in Exhibit D)
when Qwest provides Services for Customer. Qwest's purchase of
Customer's Accounts Receivable will be with full recourse as set forth
in Exhibit D.
15. Limitations Period
Claims made under this Agreement will be subject to the following
limitation periods:
A. Subject to Section 10.C, no claim arising from Qwest's failure
to bill a Billing Transaction, or failure to properly bill a
Billing Transaction, to an End User will be asserted more than
eighteen (18) months after the Billing Transaction was or
should have been billed.
B. No other claim or demand under this Agreement, including
demands made under the arbitration section hereof, or any
other demand or claim with respect to this Agreement may be
made or brought by either Party more than two years after the
date of the event that gave rise to the demand or claim except
that: 1) the limitation period herein will not apply to claims
for revenue due Customer from its End Users to the extent
Qwest has collected and retained such revenue; 2) a demand or
claim for indemnification under this Agreement may be made or
brought by a Party for two years after the accrual of the
cause of action for indemnity; and 3) any claim in the nature
of fraud or concealment may be brought within two years of
discovery of the existence of such fraud or concealment.
16. Term and Termination of Agreement
A. This Agreement will become effective as of the first Business
Day after the Closing (as such term is defined in the LLC
Purchase Agreement) (the "Commencement Date") and will
continue for two years, through November 7, 2004, unless
earlier terminated in whole or in part as provided herein.
B. Customer may (i) terminate this Agreement for convenience and
without penalty upon no less than thirty (30) days' prior
written notice to Qwest ("Termination Notice"), or (ii)
subject to Section 18, immediately terminate this Agreement in
the event of any willful failure of Qwest to pay, on any
applicable due date, the full amount of the Amount Due
Customer in respect of Customer's Account Receivables to be
purchased on such date in accordance with Exhibit D hereto;
provided that Customer will provide Qwest with prompt notice
of its election to terminate this Agreement pursuant to this
clause (ii), Customer's sole and exclusive obligation upon
termination under this Section 16.B, except as otherwise
expressly set forth herein, is to make payment for all
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balances due, including, without limitation, with respect to
any Service Commitment as provided in Section 6 of this
Agreement, and for authorized charges associated with any
completed or partially completed Custom Request for any Custom
Request development work. Notwithstanding anything to the
contrary in this Agreement, if Customer terminates this
Agreement under this Section 16.B, Customer will also pay all
of Qwest's costs incurred in terminating Services and
effecting the transition of Services to Customer or Customer's
designated provider.
C. In the event of a Governmental Entity order that requires
Qwest to no longer provide the Services to Customer in any
state or service area of Customer, Qwest may terminate this
Agreement (or the affected service area(s)) immediately;
provided, however, that Qwest will, in good faith and using
commercially reasonable efforts, object to and attempt to
prevent the implementation of any such order and will solicit
advice from Customer regarding how to prevent such order.
D. The Parties agree that upon termination or expiration of this
Agreement they will exercise commercially reasonable efforts
to effect the transition of the Services to Customer or
Customer's designated provider. Qwest agrees to bill for
Billing Transactions that Qwest determines to have been in the
billing system as of the date of termination or expiration.
Unless otherwise agreed by the Parties, Qwest will continue to
provide such transition Services for an interim period, not to
exceed twelve (12) months from the date of termination or
expiration, as described in Exhibit D, Section 13. Customer
will pay Qwest for all Services provided to Customer during
such transition period in accordance with the payment terms
set forth in this Agreement.
17. Proprietary and Confidential Information
A. As used herein, "Confidential Information" will mean
information disclosed by one Party to the other in the course
of the provision of Services, and will include the existence
of this Agreement and all of its terms, conditions and
provisions.
B. Qwest and Customer agree to hold such Confidential Information
in strictest confidence and will use same solely for the
purposes of this Agreement unless otherwise authorized in
writing by the other Party. Neither Party will disclose such
Confidential Information to anyone except (i) its employees,
agents, consultants or subcontractors to whom disclosure is
necessary for the purposes set forth in this Agreement or (ii)
as required by law, rule, regulation or court order (and the
Party that is required to make such disclosure will first
notify the other Party of such disclosure obligation). The
disclosing Party will appropriately notify each employee,
agent, consultant and/or subcontractor to whom disclosure is
made that such disclosure is made in confidence and must be
kept in confidence in accordance with this Agreement.
C. All Confidential Information, unless otherwise specified in
writing, will remain the property of the disclosing Party.
Confidential Information will not be reproduced except to the
extent necessary to accomplish the purpose and intent of this
Agreement, or as otherwise may be permitted in writing by the
disclosing Party. In the event the disclosing Party grants the
other Party permission to copy Confidential Information, the
Party seeking such permission agrees that each such copy will
contain and state the same confidential or proprietary notices
or legends that appear on the original. Nothing in this
Agreement will be construed as granting any right or license
under any copyrights, inventions or patents now or hereafter
owned or controlled by either Party. All Confidential
Information, including copies thereof, will be returned to the
disclosing Party or destroyed after the recipient Party's need
for it has expired or upon the request of the disclosing
Party.
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D. The obligations imposed in this Agreement will not apply to
any information that:
1) is or becomes publicly available other than through
disclosure by the recipient Party;
2) becomes available to the recipient Party from a third party
who is under no restriction with respect to disclosure of such
information;
3) is independently developed by the recipient Party; or
4) is communicated by the recipient Party to a third party
with express written consent of the disclosing Party.
E. Without the prior consent of the other Party, neither Party
will disclose to any third person, other than as provided in
paragraph B above, the existence or purpose of this Agreement,
the terms or conditions hereof, nor the fact that discussions
are taking place and that Confidential Information is being
shared. Furthermore, neither Party nor its agents will reveal
the other as the source of Confidential Information described
in this Agreement without its express, prior written consent.
Notwithstanding the foregoing, Customer may advise its End
Users that it will bill for its DPS services through Qwest.
18. Force Majeure
A. In no event will either Party be liable to the other for any
delay or other failure to perform hereunder that is due to:
(i) the other Party's unreasonable delay in supplying or
failure to supply information, materials or services expressly
provided for under the terms of this Agreement; or (ii)
occurrences or circumstances beyond such Party's reasonable
control (including epidemic, riot, unavailability of resources
due to national defense priorities, war, armed hostilities,
strike, walkouts, civil disobedience, embargo, fire, flood,
drought, storm, pestilence, lightning, explosion, power
blackout, earthquake, volcanic eruption or any act, order or
requirement of a regulatory body, court or legislature, civil
or military authority, foreseeable or unforeseeable act of
God, act of a public enemy, act of terrorism, act of sabotage,
act or omission of carriers, or other natural catastrophe or
civil disturbance) during the period and to the extent that
such extraordinary condition delays, impairs or prevents such
Party's performance (each a, "Force Majeure Condition"). If
either Party does not perform any of its obligations hereunder
as a result of a Force Majeure Condition, and the other
Party's performance of its obligations hereunder are
conditioned upon the first Party's performance, then
notwithstanding anything in this Agreement to the contrary,
the other Party's performance will be excused (including
payment obligations) until such time as the first Party has
performed those obligations prevented by the Force Majeure
Condition.
B. If any such Force Majeure Condition occurs and results in a
delay or failure in performance of any part of a Party's
obligations under this Agreement for more than sixty (60)
days, the other Party may, by written notice given to the
Party whose performance was delayed or who failed to perform,
immediately terminate that part of this Agreement that will be
affected by such delay or failure to perform, without penalty.
19. Default
A. A failure by either Party to perform any material agreement,
obligation or covenant in this Agreement, and any material
breach of a representation or warranty made in this Agreement,
in each case that is not cured within thirty (30) days after
written notice thereof from the other Party (unless a shorter
or longer period is expressly set forth herein) will be deemed
to be a default.
B. If a breach is capable of remedy, a Party may cure such breach
by taking all of the following steps prior to the end of the
applicable cure period: (1) notifying the non-
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breaching Party, in writing, that the breaching Party wishes
to cure the breach and continue the Agreement; (2) terminating
any breaching acts, omissions, or behaviors; (3) correcting
any existing breaches, including, but not limited to paying
any charges due under this Agreement; and (4) providing
security reasonably satisfactory to the non-breaching Party,
such as a performance bond in an appropriate amount. Any
material breach must be cured expeditiously and within the
thirty (30) day cure period.
C. If there is a good faith objection or dispute in connection
with whether a breach (as described in Section 19.A) exists
following the end of the cure period, if applicable, the
Parties will attempt in good faith to resolve such dispute and
determine the appropriate remedial action pursuant to the
terms and conditions of Section 8.
D. Upon the determination that a default exists (and following
the actions, if any, required or available to be taken under
Section 19.B and/or Section 19.C), in addition to all other
rights and remedies provided herein or at law or equity, the
non-defaulting Party will have the right to terminate this
Agreement in whole or in part, without any further obligation
to the other (except the discharge of obligations incurred
prior to the effective date of termination).
20. Amendments; Waivers
This Agreement or any part thereof or any Exhibits hereto or documents
referred to herein may be modified or additional provisions may be
added by written agreement signed by or on behalf of both Parties. No
amendment or waiver of any provision of this Agreement and no consent
to any default under this Agreement will be effective unless the same
will 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 will be construed as a waiver of such term,
right or condition.
21. Assignment
Neither this Agreement nor any rights or obligations hereunder are
assignable by one Party without the express prior written consent of
the other Party; provided, however, that: (i) either Party may assign
this Agreement upon written notice to the other Party to any of its
Affiliates without the consent of the other Party if the assigning
Party requires such Affiliate to agree in writing to assume this
Agreement and the assigning Party remains liable for its obligations
hereunder; (ii) a Change of Control of either Party will not be deemed
to be an assignment of this Agreement, provided that if the relevant
Party is no longer directly bound as a party to this Agreement (e.g.,
because the Change of Control is a sale or transfer of assets or is the
result of a transaction pursuant to which the successor, surviving or
acquiring entity does not automatically succeed to the obligations of
such Party by operation of law), the successor, surviving or acquiring
entity is required to agree in writing (whether as part of the
acquisition agreement that provides for the other Party to be a third
party beneficiary or in a separate agreement) to assume this Agreement
(iii) Customer may assign this Agreement and the rights and obligations
under it to its lenders for collateral security purposes, so long as
Customer remains liable for its obligations hereunder; and (iv)
Customer may assign this Agreement with respect to a particular service
area(s) in the Qwest Region to any person (other than an affiliate of
Customer) upon written notice to Qwest so long as Customer will require
the acquiring person to agree in writing (whether as part of the
acquisition agreement with Customer that provides for Qwest to be a
third party beneficiary or in a separate agreement) to assume this
Agreement and Customer will have no rights or obligations under this
Agreement with respect to such service area(s).
22. Notices and Demands
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Except as otherwise provided under this Agreement, all notices,
demands, or requests which may be given by a Party to the other Party
will be in writing and will be deemed to have been duly given on the
date delivered in person, date faxed or deposited, postage prepaid, in
the United States mail and addressed as follows:
Customer Qwest Corporation
198 Inverness Drive West, Eighth Floor 1801 California Street, Room 2150
Englewood, Colorado 80112 Denver, Colorado 80202
Attn: Tony Basile Attn: Perry Hooks, Customer Account Manager
Phone: (303) 784-2849 Phone: (303) 965-4094
Fax: (303) 784-1599 Fax: (303) 896-3365
Email: tony.basile@dexmedia.com Email: phooksj@qwest.com
If personal delivery is selected as the method of giving notice under
this Section, a receipt of such delivery will be obtained. The address
to which such notices, demands, requests, elections or other
communications is to be given by either Party may be changed by written
notice given by such Party to the other Party pursuant to this
Agreement.
23. Representations and Warranties
A. Each Party represents and warrants that (i) it has the full
right and authority to enter into, execute, deliver and
perform its obligations under this Agreement, (ii) this
Agreement constitutes a legal, valid and binding obligation,
enforceable against such Party in accordance with its terms,
subject to bankruptcy, insolvency, creditors' rights and
general equitable principles, and (iii) its execution of and
performance under this Agreement will not violate in any
material respects any applicable existing regulations, rules,
statutes or court orders of any local, state or federal
government agency, court or body.
B. Customer represents and warrants to Qwest that (i) there are
no agreements between Customer and its End Users or any other
third party that would cause Customer to breach any term,
condition or obligation under this Agreement, (ii) it is
authorized to disclose to Qwest any and all information
necessary for Qwest to perform the Services, and (iii) none of
the Licensed Property infringes the trademark rights of any
third party.
C. Qwest represents and warrants to Customer that (i) there are
no agreements between Qwest and its subscribers or any other
third party that would cause Qwest to breach any term,
condition or obligation under this Agreement and (ii) no
trademark, service mark or trade name of Qwest appearing on or
in Customer's bills printed and distributed pursuant to this
Agreement infringes the trademark rights of any third party.
24. Relationship of Parties
The relationship of the Parties will not be that of partners, agents,
or joint venturers, and nothing contained herein will be deemed to
constitute a partnership or agency agreement between them for any
purposes, including, without limitation, for federal income tax
purposes. Each Party will be and remain an independent contractor and
for no purpose will the employees or agents or any sub-contractor of
one Party be construed to be an employee of the other Party in
connection with the performance of this Agreement.
25. Third-Party Beneficiaries
This Agreement will not provide any person not a Party to this
Agreement, (specifically including, but not limited to, End Users), any
remedy, claim, liability, reimbursement, claim of action or other right
in excess of those existing without reference to this Agreement.
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26. Governing Law
This Agreement will be governed by and construed in accordance with the
domestic laws of the State of Colorado without reference to its choice
of law principles.
27. Lawfulness of Agreement
This Agreement and the Parties' actions under this Agreement will
comply with all applicable federal, state, and local laws, rules,
regulations, court orders, and governmental agency orders. If a court
or governmental agency with proper jurisdiction determines that this
Agreement, or a provision of this Agreement, is unlawful, this
Agreement, or that provision of this Agreement, will terminate. If a
provision of this Agreement is so terminated but the Parties legally,
commercially and practicably can continue this Agreement without the
terminated provision, the remainder of this Agreement will continue in
effect.
28. Successors and Assigns
This Agreement is binding upon and will inure to the benefit of each
Party and their respective successors and assigns. Following a Change
of Control of any Party, the acquiring, surviving or successor entity
will, and such Party agrees to cause such entity to, agree in writing
(whether as part of the acquisition agreement with such Party that
provides for the other Party to be a third party beneficiary or in a
separate agreement) to assume this Agreement and be bound by, with
respect to itself and its affiliates, the restrictions contained herein
to the same extent as the applicable Party.
29. Headings
The headings in this Agreement are for convenience and will not be
construed to define or limit any of the terms herein or affect the
meaning or interpretation of this Agreement.
30. Entire Agreement
This Agreement, and any Exhibits attached hereto, constitutes the
entire understanding between the Parties with respect to the subject
matter hereof, and supersedes all prior understandings (including the
Original B&C Agreement), oral or written representations, statements,
negotiations, proposals and undertakings with respect to the subject
matter hereof. For avoidance of doubt, this Agreement completely
supercedes and replaces the Original B&C Agreement.
31. Miscellaneous
In the event any program covered by this Agreement is limited or
prohibited by any by any applicable federal, state, or local laws,
court orders, or agency orders, rules or regulations, both Parties
agree to comply with such laws, orders, rules or regulations.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date
first written above.
DEX MEDIA EAST LLC QWEST CORPORATION
By: /s/ George Burnett By: /s/ Janet K. Cooper
--------------------- --------------------------------------
Name: George Burnett Name: Janet K. Cooper
Title: CEO and President Title: Senior Vice President and Treasurer
<PAGE>
EXHIBIT I
DEFINITIONS
ABEC
An industry-recognized acronym that means Alternate Billing Entity Code. A
separate ABEC, assigned by Qwest, is required within Qwest's billing system for
each of Customer's separate lines of business.
Accounts Receivable
An account evidencing a legally enforceable right to payment for DPS services
rendered by Customer and lawfully billed as charges on the Qwest End User bill.
Adjustment(s)
Post-billing transactions issued by Customer or Qwest for the purpose of
debiting or crediting lawfully billed charges on the End User bill. Adjustments
may be issued for individual charge(s) (detail transactions) or for combinations
of charges (summary transactions).
Adjustment Record(s)
A term used to describe specific EMI record(s) generated by Qwest that may be
utilized to report End User Adjustment activity to billing customers. Such
records will only be generated for Adjustments issued by Qwest.
Billing Transaction
Customer-originated charge-type transactions that result in an End User being
billed for Customer's DPS services within the Qwest shared-bill.
Business Day
Any day other than a Saturday, a Sunday or a day on which banks in Denver,
Colorado are authorized or obligated by law or executive order to close.
Billing Transaction Phrases
A term used by Qwest that refers to the descriptive bill phrases used to
describe the Billing Transaction charge/credit amount on the End User bill.
Business Office Write-Off
A term for End User account balances for which the Qwest business office has
completed all live collection activities and a final bill has been issued and
subsequently written off the books by the business office.
<PAGE>
EXHIBIT I
Central Region
A term used by Qwest to collectively identify the following group of states:
Arizona, Colorado, Southern Idaho, Montana, New Mexico, Utah and Wyoming.
Change of Control
A term that means: (i) an acquisition by any Person or group of Persons of the
voting stock of the referenced Person in a transaction or series of
transactions, if immediately thereafter such acquiring Person or group has, or
would have, beneficial ownership of more than 50% of the combined voting power
of the referenced Person's then outstanding voting stock, including any such
acquisition by way of a merger, consolidation or reorganization (including under
the Bankruptcy Code), or series of such related transactions, involving the
referenced Person; or (ii) a sale, assignment or other transfer of all or
substantially all of the referenced Person's; or (iii) a confirmation of any
plan of reorganization or liquidation under, or sale of assets pursuant to, the
Bankruptcy Code, any out-of-court recapitalization or reorganization transaction
or exchange offer, in any case in which more than fifty-one percent (51%) of
such Person's outstanding equity securities are issued in exchange for all or a
significant portion of such Person's outstanding debt or other securities, or a
deed in lieu of foreclosure or any other remedy or right at law or contract by
which substantially all of such Person's equity securities or assets are
surrendered, assigned or otherwise transferred to another Person.
Directory Advertising
A term that is inclusive of Customer's foreign and local white page advertising,
yellow page advertising and other related DPS services agreed upon in writing by
the Parties.
Eastern Region
A term used by Qwest to collectively identify the following group of states:
Iowa, Minnesota, Nebraska, North Dakota and South Dakota.
End User
A consumer that utilizes or subscribes to Customer's DPS services.
Entity
A term used by Qwest to describe a "grouping" of specific Customer DPS services.
Such groupings are created by Qwest, with the prior consent of Customer, such
consent not to be unreasonably withheld, delayed or conditioned, to
differentiate DPS services for purposes of taxation, treatment and collection
activities, payment allocation, Adjustments and tracking.
<PAGE>
EXHIBIT I
Governmental Entity
Any government or any agency, bureau, board, commission, court, department,
official, political subdivision, tribunal or other instrumentality of any
government, whether Federal, state or local, domestic or foreign.
Individual Case Basis (ICB)
A non-standard Services offering for which no fixed recurring or non-recurring
charge has been set.
Inquiry Service
The name for an optional Service that involves Qwest personnel handling End User
questions, disputes and correspondence on behalf of third-party billing
customers.
Page
A term meaning the section of the Qwest shared bill where a customer's billing
is printed. This section may encompass one or more Page(s) and each Page will
reflect a customer name and/or logo. For purposes of this Agreement, a Page is
not the same as an actual sheet of bill paper stock. Because Qwest has many End
User bill formats, a Page can take on different characteristics, as described
below:
1) Quad Formatted Bills (utilized for the majority of residence and small
business Accounts) provides for a single sheet of paper stock to be
separated into four Pages, also known as Quadrants, with two
Pages/Quadrants printed on each side of the paper.
2) Non-Quad Formatted Bills (utilized for large business accounts and
"held-type" bills among others) provide for a single Page to be printed
on either one full side of the bill paper stock or, in some cases, both
full sides of the bill paper stock.
Pseudo CIC
A term utilized by Qwest that means a Qwest-assigned internal identifier code
which is specifically utilized for purposes of billing.
Publisher Notifiers
A term utilized by Qwest to collectively describe the variety of mutually agreed
upon communication methods/forms initiated by Customer to inform Qwest to issue
Adjustments or to take other action against End User accounts containing
Customer charges. Examples of mutually agreed upon notification methods include,
but are not limited to, forms 50693, 50694 and/or emails.
Purchase of Accounts Receivable (PAR)
The settlement statements which Qwest prepares ten (10) times per month that
summarize the amount due Customer or Qwest for Qwest's purchase of Customer's
Accounts Receivable, as more fully set forth in Exhibit D.
Qwest Region
Each of the Central, Eastern and Western Regions are individually referred to as
a "Qwest Region".
RTA (Remove from Treatment Amount)
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EXHIBIT I
An acronym that means "Remove from Treatment Amount". RTA represents a specific
dollar amount at which or below which an Entity/account is removed from
collection activity.
Realized Final Account Uncollectibles
Actual Uncollectible amounts written off Customer End User final bills for
failure of the End User to pay lawfully billed charges.
Treatment and Collections
A term that encompasses the activities performed by Qwest on behalf of Customer
to obtain payments from End Users on past due accounts that appear in the Qwest
shared-bill. Qwest will perform such activities pursuant to the then current
procedures, as further described in Exhibit E of this Agreement.
Unauthorized Charge(s)
A term utilized by Qwest to describe any charges appearing on Customers portion
of the bill that are disputed by an End User. The term Unauthorized Charges is
not the same as an Adjustment reason.
Unbillable(s)
A term used to describe billing records, including Adjustments, which cannot be
billed to an End User account.
Uncollectible(s)
An industry-recognized term that means the specific amount on an End User
account/Entity that cannot be collected by Qwest and is subsequently returned to
the customer. Qwest provides notification of Uncollectibles via specific types
of EMI records.
Uncollectible Bad Debt Allowance
An amount withheld from the settlement as an Uncollectible reserve to offset
future actual Uncollectible amounts written-off Customer's End User final bill
Western Region
A term used by Qwest to collectively identify the following states: Oregon,
Washington and northern Idaho.