Agreement for the Provision of Billing and Collection Services for Directory Publishers - GPP LLC and Qwest Corp.
AGREEMENT FOR THE
PROVISION OF BILLING AND COLLECTION SERVICES
FOR
DIRECTORY PUBLISHERS
BETWEEN
GPP 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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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TABLE OF CONTENTS
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SECTION PAGE
------- ----
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 and Payment.................................................. 10
8. Dispute Resolution........................................................... 11
9. Audit........................................................................ 11
10. Billing Errors and Limitation of Liability................................... 13
11. Data Retention............................................................... 16
12. Indemnification.............................................................. 16
13. Taxes........................................................................ 17
14. Purchase of Accounts Receivable.............................................. 20
15. Limitations Period........................................................... 20
16. Term and Termination of Agreement............................................ 20
17. Proprietary and Confidential Information..................................... 21
18. Force Majeure................................................................ 22
19. Default...................................................................... 23
20. Amendments; Waivers.......................................................... 23
21. Assignment................................................................... 24
22. Notices and Demands.......................................................... 24
23. Representations and Warranties............................................... 25
24. Relationship of Parties...................................................... 25
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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25. Third-Party Beneficiaries.................................................... 25
26. Governing Law................................................................ 25
27. Lawfulness of Agreement...................................................... 26
28. Successors and Assigns....................................................... 26
29. Headings..................................................................... 26
30. Entire Agreement............................................................. 26
31. Miscellaneous................................................................ 26
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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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AGREEMENT FOR THE PROVISION OF
BILLING AND COLLECTION SERVICES
FOR DIRECTORY PUBLISHING SERVICES (DPS)
THIS 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 GPP 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")
entered into that certain Purchase Agreement dated as of August 19, 2002 (the
"LLC Purchase Agreement"), pursuant to which Dex (i) contributed certain of its
assets and liabilities to SGN LLC, and (ii) sold all of the outstanding limited
liability company interests of SGN LLC 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 Customer, and (ii) sell all of the outstanding limited
liability company interests of Customer to Buyer following such contribution on
a certain date; and
WHEREAS, in connection with the LLC Purchase Agreement, Qwest and SGN 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 (the "Dexter
Agreement"), pursuant to which Qwest agrees to bill SGN LLC's DPS services to
End User accounts within Colorado, Iowa, Minnesota, Nebraska, New Mexico, North
Dakota and South Dakota; and
WHEREAS, Section 7.2(g) of the LLC II Purchase Agreement provides that the
obligations of Dex, QSC, QCII and Buyer to consummate the closing under the LLC
II Purchase Agreement are subject, among other things, to the execution and
delivery of 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 0576.
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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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.
B. Qwest agrees to bill Customer's DPS services to End User accounts
within the territory comprised of the seven states of Arizona,
Idaho, Oregon, Montana, Utah, Washington, and Wyoming.
2. Scope of Agreement
This Agreement defines the terms and conditions for which Qwest will
provide DPS to Customer and includes the following Exhibits:
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
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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 Users 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-but 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-
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 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 Charge(s)
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 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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 percent
(12%). The late payment penalty will be billed in the Detail of
Late Payment Charges Section of the invoice.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 arbitrators 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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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.
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 9.6 and the remainder of this Section
9.0). All information reviewed by the independent auditor is
considered Confidential Information as such term is defined in
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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
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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 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:
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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<PAGE>
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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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CDS-XXXXXXXXXX
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<PAGE>
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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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CDS-XXXXXXXXXX
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<PAGE>
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 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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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CDS-XXXXXXXXXX
17
<PAGE>
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.
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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
DPS B&C Contract
CDS-XXXXXXXXXX
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<PAGE>
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 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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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CDS-XXXXXXXXXX
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<PAGE>
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 II Purchase
Agreement) (the "Commencement Date") and will continue until the
termination of the Dexter Agreement, 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 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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
DPS B&C Contract
CDS-XXXXXXXXXX
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<PAGE>
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
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
DPS B&C Contract
CDS-XXXXXXXXXX
21
<PAGE>
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.
D. The obligations imposed in this Agreement will not apply to any
information that is:
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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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CDS-XXXXXXXXXX
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<PAGE>
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 breath 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-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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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CDS-XXXXXXXXXX
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<PAGE>
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
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,
Englewood, Colorado 80112 Room 2150
Denver, Colorado 80202
Attn: Tony Basile Attn: Perry Hooks, Customer
Phone: (303) 784-2849 Account Manager
Fax: (303) 784-1599 Phone: (303) 965-4094
Email: tony.basile(C)dexmedia.com Fax: (303) 896-3365
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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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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 Customers 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.
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.
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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<PAGE>
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, oral or written
representations, statements, negotiations, proposals and undertakings
with respect to the subject matter hereof.
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.
[Remainder of Page Intentionally Left Blank]
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
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<PAGE>
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date
first written above.
GPP LLC QWEST CORPORATION
By: Qwest Dex, Inc., its sole member
By: /s/ Tom F. Gillett By: /s/ Janet K. Cooper
----------------------------- ----------------------
Name: Tom F. Gillett Name: Janet K. Cooper
Title: Senior Vice President - Corporate Title: Senior Vice President
Development Finance and Treasurer
Notice
The information contained herein should not be disclosed to unauthorized
persons. It is meant for use by authorized representatives of Qwest
and Customer only.
DPS B&C Contract
CDS-XXXXXXXXXX
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