EXHIBIT 10.5
EMI Translation Service Agreement
THIS AGREEMENT is made effective as of the 1st day of July, 2000(the "Effective
Date").
BETWEEN:
YAK Communications (Canada) Inc.,
a corporation organized under the laws of Ontario
(the "Customer")
- and -
TELUS Communications Inc.,
a corporation organized under the laws of Alberta
("TELUS")
WHEREAS:
A. The Customer is a telecommunications services provider,
B. The Customer has entered into agreements with respect to the billing and
collection of telecommunications services provided by the Customer with
certain Canadian local exchange carriers;
C. The Customer's billing information with respect to such telecommunications
services requires certain validation and conversion prior to its being in a
form that the Canadian local exchange carriers can utilize for billing and
collection;
D. The Customer's billing information must be distributed to the Canadian
local exchange carriers with whom the Customer has entered into agreements
with respect to billing and collection services;
E. TELUS provides certain validation, correction, and translation services
with respect to billing information that the Customer is able to provide;
F. TELUS provides an interface with the Billing Record Analysis and Transport
System (BRATS) which interacts with Canadian local exchange carriers for
the validation and distribution of billing information;
G. The Customer has requested that TELUS provide certain validation,
correction, and translation services with respect to the Customer's billing
information; and
H. TELUS has agreed to provide such services.
IN CONSIDERATION of the respective covenants and agreements contained in this
Agreement, the Customer and TELUS mutually agree as follows.
1. Interpretation and Scope
(a) "Agreement" means this written instrument together with the attached
Schedule "A" and any amendments made in writing by the parties to such
documents.
(b) In the event of any conflict or inconsistency among the provisions of the
various parts of this Agreement, such conflict or inconsistency shall be
resolved by giving precedence, first, to the main body of this Agreement
and, second, to the Schedules.
2. Services
(a) TELUS shall provide the Services to the Customer in accordance with
Schedule "A".
(b) TELUS shall be responsible for the manner in which the said Services are
performed, for the method employed in doing the same, and for all acts and
things done in the delivery of the Services outlined in Schedule "A".
3. Term and Termination
(a) The term for the provision of the Services shall commence on the Effective
Date and shall continue, subject to earlier termination, for a period of
three (3) years (the "Initial Term"). Unless TELUS receives written notice
from the Customer to terminate the Services at least thirty (30) days prior
to expiration of the Initial Term, TELUS shall continue to provide the
Services on a month to month basis (each a "Renewal Term") at the same
rates, charges and fees and on the same terms and conditions as provided
for in this Agreement until the earlier of:
(i) either party receives at least thirty (30) days' prior written notice
from the other party respecting termination of the Services effective
the end of a Renewal Term; and
(ii) the Services are otherwise terminated as provided for herein.
(b) During the Initial Term either party may, upon three (3) months prior
written notice to the other party, terminate this Agreement.
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(c) In the event of termination by the Customer pursuant to Article 3(b), the
Customer shall pay to TELUS, as liquidated damages and not as a penalty,
termination fees in the amount of two thousand dollars ($2000.00) per month
for each month and partial month of the unexpired portion of the Initial
Term.
(d) Notwithstanding any other provision of this Agreement, TELUS shall be
entitled, at its option, to terminate this Agreement upon written notice to
the Customer.
(i) if the Customer fails to pay any amounts due and owing to TELUS under
this Agreement; or
(ii) if the Customer otherwise fails to comply with any of the terms and
conditions of this Agreement;
after having been provided with notice of such deficiency and thirty (30)
days within which to cure such deficiency and such deficiency remains
unremedied at the expiration of such time period.
(e) Notwithstanding any other provision of this Agreement, TELUS shall be
entitled, at its option, to terminate this Agreement immediately upon
written notice to the Customer.
(i) where required by law, court order or regulatory order or directive;
(ii) upon the Customer becoming bankrupt or insolvent;
(iii) upon the filing by the Customer of any petition or answer seeking
reorganization, readjustment or arrangement of the business of the
Customer under any law relating to bankruptcy or insolvency;
(iv) upon the Customer ceasing to carry on business in the ordinary
course;
(v) upon the appointment of a receiver or receiver-manager for all or
substantially all of the property of the Customer;
(vi) upon the making by the Customer of any assignment or attempted
assignment for the benefit of creditors; or
(vii) upon the institution of any proceedings for the liquidation or
winding up of the Customer's business;
such termination to be effective on the date specified in the notice of
termination.
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(f) Expiration or termination of this Agreement shall not relieve the Customer
of its obligation to pay amounts due or to become due to TELUS, nor deprive
TELUS of any of its rights or remedies or actions against the Customer.
4. Price and Terms of Payment
(a) The Customer shall pay to TELUS the rates, charges and fees payable for the
Services as specified in Schedule "A". All rates, charges and fees shall be
payable as of and from the earlier of: (a) the Effective Date, and (b) the
date of provision of the Services.
(b) The Customer shall be responsible for the payment of all taxes, levies and
duties imposed by any local, provincial, state or federal government or
government agency in connection with the provision of the Services to the
Customer by TELUS. Where required by law, the Customer shall pay the
relevant tax, levy or duty directly to TELUS. The Customer's liability
shall not include taxes, levies and duties imposed directly on TELUS in the
nature of a property, capital or income tax.
(c) TELUS shall invoice the Customer monthly in advance for the month fees
specified in Schedule "A". TELUS shall invoice the Customer monthly in
arrears for fees based on usage specified in Schedule "A". All charges
shown on the Customer's ▇▇▇▇ are due on the due date shown on the ▇▇▇▇. All
charges not paid by the due date are past due and will bear interest at the
rate of 1.5% per month compounded monthly (19.56% per year).
(d) If the Customer terminates all or any part of the Services prior to
expiration of the Initial Term or any Renewal Term, the Customer shall pay
to TELUS all outstanding rates, charges and fees to the effective date of
termination plus, as specified in this Agreement, any early termination
charges.
5. Title
All work products including documentation, reports, brochures and manuals
including, without limitation, any items deliverable under this Agreement,
if any, developed by TELUS pursuant to this Agreement, and all copyright,
patent and all other proprietary rights in such work products shall be the
property of TELUS and may be used or disclosed by TELUS to anyone in its
sole discretion. Furthermore, any and all designs, methods, processes,
formulae, data, specialized know-how, improvements, innovations, trade
secrets and specialized techniques that are made, prepared, developed,
generated or produced by TELUS, its officers, employees, agents,
representatives, and subcontractors, in connection with the performance of
the Services under this Agreement vest in TELUS
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and shall become the sole property of TELUS. The Customer agrees to execute
all documents prepared at the expense of TELUS which are required to give
effect to this section.
6. Confidentiality
(a) Each party shall not disclose to any third party any of the details of this
Agreement or use any information which it has acquired as a result of this
Agreement concerning the other party's plans, business, objectives,
customers, products, processes, work or services, without the other party's
prior written consent. Such information shall only be used for the purposes
of this Agreement. The receiving party shall take every reasonable
precaution to avoid disclosing such information, data or documentation and
such precautions shall include, but are not limited to, the safeguarding of
documents, the making of copies only when necessary, and giving security
instructions issued by the disclosing party to the receiving party from
time to time.
(b) The obligations set out in this Article 6 shall not apply to:
(i) information which is within the public domain at the date of its
disclosure to the recipient party or which thereafter enters the
public domain otherwise than through the acts or omissions of the
recipient party, its officers, employees, agents, or representatives
or any other person under an obligation to hold same confidential;
(ii) information which is already known to the recipient party at the
time of its disclosure by the disclosing party and is not subject to
confidential restrictions;
(iii) information which is developed independently by the recipient party
prior to or following the date of its disclosure to the recipient
party;
(iv) information which, following its disclosure by the disclosing party
to the recipient party, is received by the recipient party without
obligation of confidence from a third party who the recipient party
had no reason to believe was not lawfully in possession of such
information free of any obligation of confidence;
(v) information which the disclosing party has given its written
approval to disclose; or
(vi) information which the recipient party is required by a judicial,
administrative or governmental body to disclose.
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(c) The obligations of confidentiality in this Article 6 shall, with respect to
any particular information, survive for a period of two (2) years following
disclosure of that particular information by the disclosing party to the
recipient party.
7. Warranty and Limitation of Liability
(a) TELUS shall not be liable for mistakes or errors in the transmission of
billing messages received by TELUS nor for the content of such billing
messages. TELUS does not guarantee error free or uninterrupted provision of
the Services. TELUS will utilize reasonable commercial efforts to provide
the Service in accordance with Schedule "A" but does not assume any
financial liability for the value of the billing records, real or implied,
that TELUS is transporting on behalf of the Customer.
(b) Other than as provided for in this Agreement, there are no other
warranties; representations, conditions or guarantees of any kind
whatsoever, either express or implied, whether existing by statute,
agreement, tort, product liability or otherwise, regarding the Services
including, but not limited to, warranties, representations and guarantees
as to merchantability, fitness for purpose, design, condition or quality.
(c) TELUS shall not be liable to the Customer or any other person for any
losses, damages, injuries, or costs, notwithstanding TELUS' notice of the
same, arising out of or caused by the Customer or its employees, agents,
subcontractors, or those for whom at law it is responsible, in the
performance of this Agreement including, without limiting the generality of
the foregoing, that arising out of or caused by use of the Services by the
Customer.
(d) In no event will TELUS be liable to the Customer or any party claiming
through or under the Customer for lost profits, lost revenue, failure to
realize expected savings, loss of use or any other commercial or economic
loss of any kind, or any punitive, exemplary, indirect, incidental,
consequential or special damages, or any third party claims arising out of
the use by the Customer of the Services, even if TELUS has knowledge of the
possibility of such potential losses or damages.
8. Indemnity.
Notwithstanding any other provisions in this Agreement, the Customer shall:
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(a) indemnify and hold harmless TELUS, its directors, officers, employees and
agents from and against any and all manner of liabilities, awards, claims,
demands, suits, proceedings, actions, causes of actions or other claims
which may be brought or made against TELUS or such persons, or which TELUS
or such persons may become subject to;
(b) be liable to TELUS, its directors, officers, employees and agents for any
and all losses, costs, charges, damages and expenses whatsoever (and
without limiting the generality of the foregoing, any direct losses, costs,
damages and expenses of TELUS or such persons, including costs as between a
solicitor and his own client) which TELUS or such persons may sustain, pay
or incur,
as a result of, arising out of, or in connection with:
(c) the provision of the Services to the Customer,
(d) any willful, negligent or wrongful act or omission of the Customer,
including any employees, agents and subcontractors of the Customer,
pursuant to this Agreement;
(e) any alleged infringement by the Customer of any third party intellectual
property rights; or
(f) the improper disclosure of Confidential Information by the Customer,
including any officers, employees, agents, representatives and
subcontractors of the Customer.
9. General.
(a) Relationship. The Customer and TELUS are independent contractors. Nothing
in this Agreement shall be construed so as to create a partnership or joint
venture or relationship of franchisor and franchisee or principal or agent.
Neither party shall be liable for the debts or obligations of the other
party.
The Customer shall not be an agent of TELUS for any purpose. The Customer
is not granted any right or authority to assume or create any obligation,
express or implied, on behalf of or in the name of TELUS or to bind TELUS
in any manner whatsoever.
(b) Conflict of Interest. The Customer represents and warrants to the best of
its knowledge and belief that, except as a shareholder in an incorporated
company issuing shares to the public at large, no TELUS official or
employee has a direct or indirect interest or receives any direct or
indirect proceeds from this Agreement.
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(c) Set Off. TELUS may, in its sole discretion, set off any and all amounts
owed TELUS or an Affiliate thereof by the Customer for any reason
including, but not limited to, any amounts associated with the provision by
TELUS of telecommunications services against amounts owed the Customer by
TELUS.
(d) Assignment. This Agreement is personal and shall not be assigned in whole
or in part by the Customer without the prior written consent of TELUS, such
consent not to be unreasonably withheld. TELUS may assign this Agreement
upon providing written notice to the Customer. TELUS may subcontract some
or all of the Services without the prior written consent of the Customer.
(e) Notices. Any notice or other communication pursuant to this Agreement
required or desired by either party shall be deemed to have given on the
date when delivered or sent by confirmed facsimile transmission, or three
(3) days after being sent by registered mail:
to the Customer: YAK Communications (Canada) Inc.
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ P 4X4
Attention: ▇▇. ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
to TELUS at: TELUS Communications Inc.
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇. ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(f) Compliance with Law. The Customer shall properly execute and comply with
all statutes, rules, orders, ordinances, and regulations of all
governmental authorities in carrying out its obligations pursuant to this
Agreement.
(g) Waiver. Failure by either party to insist upon the strict performance of
any of the covenants, agreements, terms, provisions or conditions contained
in this Agreement or to exercise any election shall not be construed as a
waiver or relinquishment of such covenant, agreement, term, provision or
condition but the same shall continue and remain in full force. No waiver
shall be deemed to have been made unless expressed in writing.
(h) Entire Agreement. This Agreement constitutes the entire agreement between
the Customer and TELUS pertaining to the subject matter and supersedes all
prior agreements, understandings, negotiations, representations and
discussions
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whether oral or written. This Agreement, in other than those sections under
which TELUS has reserved to itself the right to modify or amend, shall not
be modified, amended, rescinded or canceled except by the written agreement
of the parties.
(i) Severability. If any section of this Agreement is invalid or unenforceable
in any circumstances, the remainder of this Agreement; and the application
of such section in any other circumstances, shall not be affected.
(j) Force Majeure. Neither party shall be responsible for any failure to comply
with any of the terms of this Agreement where such failure is directly or
indirectly caused by or results from events of force majeure beyond the
control of either party. These events include, but are not limited to,
fire, flood, earthquake, accident, civil disturbances, war, rationing,
embargoes, strikes or labor problems, delays in transportation, acts of
God, or acts of government. It is agreed that the time for performance by
TELUS shall be extended by the period of such uncontrollable circumstances.
(k) Survival. The sections titled Warranty and Limitation of Liability,
Confidentiality, Indemnity, and General shall survive expiration or
termination of this Agreement.
(l) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable. The Customer and TELUS irrevocably attorn to the exclusive
jurisdiction of the Courts of the Province of Ontario.
(m) Headings. The headings contained in this Agreement are for convenience of
reference only and shall not affect the interpretation or meaning of this
Agreement.
(n) Enurement. This Agreement shall enure to the benefit of and be binding on
the successors and permitted assigns of TELUS and the Customer.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as of
the Effective Date.
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YAK Communications (Canada) Inc. TELUS Communications Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ---------------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ---------------------------------------
Name (Print or Type) Name (Print or Type)
President Director - Clearinghouse Operations
---------------------------- ---------------------------------------
Title Title
August 11, 2000 August 11, 2000
---------------------------- ---------------------------------------
Date Date
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Schedule "A"
Service
TELUS shall provide an interface and translation service for "sent paid"
(originating telephone number and billing telephone number are the same) call
detail records received from the Customer. The Customer and TELUS agree to
perform the following as part of the interface and translation service provided
by TELUS.
1. Description
-----------
(a) The Customer shall deliver "send paid" call detail records to TELUS.
The call detail records delivered by the Customer will contain, at
minimum, the following information.
Fields Required in Customer Call Detail Records
------------------------------------------------------------------------------------------------------
Field Name Data Type Length Description
------------------------------------------------------------------------------------------------------
from number character 10 originating NPA NXX line # e.g.,
6044323212
------------------------------------------------------------------------------------------------------
to number character 16 terminating NPA NXX line # e.g.,
5044142010, or overseas number up to
16 digits
------------------------------------------------------------------------------------------------------
call duration numeric 6 connect time (HHMMSS) e.g., 152218
------------------------------------------------------------------------------------------------------
billable time numeric 7 billable time (HHMMSST) e.g., 1522182
------------------------------------------------------------------------------------------------------
charge numeric 7.2 charge or amount of call e.g., 0015.42
------------------------------------------------------------------------------------------------------
date of record character 8 year/month/day (YYYYMMDD) e.g., 19990226
------------------------------------------------------------------------------------------------------
Provincial tax numeric 7.2 PST e.g., 0123.45
------------------------------------------------------------------------------------------------------
federal tax numeric 7.2 GST or HST e.g., 0123.45
------------------------------------------------------------------------------------------------------
The Customer may provide values for additional fields in the call detail
records such as ANI/ONI, rate period (day/evening/night), and to/from place
name and state. If no information is specified in these fields, TELUS will
assign default values.
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(b) The Customer shall inform TELUS electronically that a file containing call
detail records is available for processing. The Customer shall encrypt the
file using pretty good protection (PGP) encryption software using public
encryption keys. The Customer shall provide TELUS with access to the
Customer's server containing the file of encrypted call detail records.
TELLS shall electronically access the file containing the encrypted call
detail records on the Customer's server using File Transfer Protocol (FTP).
(c) TELUS shall:
(1) decrypt the Customer's encrypted call detail records;
(2) perform certain validation on the call detail records; and
(3) convert call detail records to Exchange Message Interface (EMI)
formatted billing records.
(d) TELUS shall electronically deliver the Customer's call detail records that
have been converted to EMI formatted billing records to the Billing Record
Analysis and Transport System (BRATS).
2. Additional Services
-------------------
On receipt of a written request from the Customer, TELUS shall provide the
following additional services.
(a) Billing quality edits and automatic correction
TELUS shall provide a series of validation tests to the Customer's
call detail records. The validation tests may, in certain instances,
include error correction capabilities which will result in correction
of certain errors or the specification of certain data not present in
call detail records.
(b) Reconciliation reports
TELUS shall provide the Customer with reports that include detailed
information relating to the processing and transporting of the
Customer's call detail records. The detailed information in the
reports provide the Customer with the capability to reconcile
treatment of call detail records.
(c) Fraud monitoring
TELUS shall provide the following monitoring capabilities with respect
to the Customer's call detail records:
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(1) alerts based on industry standard or Customer provided "hot
country" lists;
(2) alerts based on number of calls to the same telephone number or
calls to particular telephone numbers (Customer specified
parameters);
(3) alerts based on Customer specified level of toll charges.
3. Error Treatment
---------------
(a) Errors detected by TELUS (pre-billing return)
If a Customer call detail record contains incorrect or incomplete
data, TELUS will use commercially reasonable efforts to correct the
error and/or specify information to complete the call detail record.
If TELUS is able to correct the error and/or specify information to
complete the call detail record, TELUS shall:
(1) translate the corrected call detail record into an EMI formatted
billing record;
(2) electronically deliver the EMI formatted billing record to BRATS;
and
(3) electronically deliver a report to the Customer describing the
actions TELUS took to correct the error and/or complete the call
detail record.
If TELUS cannot correct the error and/or specify information to
complete the call detail record, TELUS shall, within fifteen (15)
calendar days of the processing date, electronically deliver to the
Customer the call detail record in error and a report containing an
explanation of the error.
(b) Errors detected by BRATS (pre-billing return)
As a result of validation performed by BRATS on EMI formatted billing
records, EMI formatted billing records maybe rejected by BRATS and
returned to TELUS.
In the event of such return of EMI formatted billing records, TELUS
shall, within fifteen (15) calendar days of receiving the returned EMI
formatted billing record from BRATS, use commercially reasonable
efforts to correct the returned EMI formatted billing record.
If TELUS is able to correct the returned EMI formatted billing record,
TELUS shall return the corrected EMI formatted billing record to
BRATS.
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If TELUS cannot correct the EMI formatted billing record, TELUS shall:
(1) reformat the EMI formatted billing record into the call detail
record format; and
(2) electronically deliver to the Customer the billing record in call
detail record format and a report containing an explanation of
the error.
(c) Errors detected by company performing billing and collection services
(pre-billing return)
As a result of validation performed by the company performing billing
and collection functions for the Customer on the EMI formatted billing
records, EMI formatted billing records may be rejected and returned
to. TELUS through BRATS.
In the event of such return of EMI formatted billing records, TELUS
shall, within fifteen (15) calendar days of receiving the returned EMI
formatted billing record from BRATS, use commercially reasonable
efforts to correct the returned EMI formatted billing record.
If TELUS is able to correct the returned EMI formatted billing record,
TELUS shall return the corrected EMI formatted billing record to
BRATS.
If TELUS cannot correct the EMI formatted billing record, TELUS shall:
(1) reformat the EMI formatted billing record into call detail record
format; and
(2) electronically deliver to the Customer the billing record in call
detail record format and a report containing an explanation of
the error.
(d) Non-billable records (post-billing return)
As a result of the company performing billing and collection services
for the Customer through use of the EMI formatted billing records, EMI
formatted billing records associated with calls that are non-billable
may be returned to TELUS through BRATS.
If TELUS receives EMI formatted billing records associated with non-
billable calls from BRATS, TELUS shall, within fifteen (15) calendar
days of receiving the returned EMI formatted billing record from
BRATS:
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(1) reformat the EMI formatted billing record into call detail record
format, and
(2) electronically deliver to the Customer the billing record in call
detail record format and a report containing an explanation of the
error.
4. Pricing
-------
(a) monthly fee $4,502.00
(b) fees based on usage
convert call detail records to EMI For each record $ 0.005
formatted billing records above 500,000
pre-billing returns For each record $ 0.05
above 5,000
post-billing returns For each record $ 0.25
above 5,000
Customer specified
billing quality edits and automatic For each record $ 0.01
correction above 10,000
reconciliation reports Monthly fee $300.00
fraud monitoring Monthly fee $300.00
For each Customer $150.00
initiated change
All fees based on record counts relate to record counts in a calendar month.
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