EXHIBIT 10.3
AGREEMENT FOR THE
PROVISION OF BILLING AND COLLECTION SERVICES
FOR
DIRECTORY PUBLISHERS
BETWEEN
SGN LLC
AND
QWEST CORPORATION
THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT CONTAINS COMMERCIALLY CONFIDENTIAL
INFORMATION THAT MAY BE CONSIDERED PROPRIETARY BY EITHER OR BOTH PARTIES, AND
AGREE TO LIMIT THE DISTRIBUTION OF THE AGREEMENT TO THOSE INDIVIDUALS IN THEIR
RESPECTIVE ORGANIZATIONS WITH A NEED TO KNOW THE CONTENTS OF THE AGREEMENT.
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.
TABLE OF CONTENTS
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 ..................................................8
7. Customer Prices; Payment.............................................9
8. Dispute Resolution .................................................10
9. Audit...............................................................10
10. Billing Errors and Limitation of Liability .........................12
11. Data Retention .....................................................14
12. Indemnification.....................................................14
13. Taxes...............................................................15
14. Purchase of Accounts Receivable ....................................17
15. Limitations Period .................................................18
16. Term and Termination of Agreement...................................18
17. Proprietary and Confidential Information ...........................19
18. Force Majeure ......................................................20
19. Default ............................................................20
20. Amendments; Waivers ................................................21
21. Assignment .........................................................21
22. Notices and Demands.................................................21
23. Representations and Warranties......................................22
24. Relationship of Parties.............................................22
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.
2
SECTION PAGE
------- ----
25. Third-Party Beneficiaries...........................................22
26. Governing Law.......................................................22
27. Lawfulness of Agreement.............................................23
28. Successors and Assigns..............................................23
29. Headings............................................................23
30. Entire Agreement....................................................23
31. Miscellaneous.......................................................23
Exhibit A Definitions...................................................A-l
Exhibit B Description of Services.......................................X-x
Exhibit C Price Lists...................................................C-l
Exhibit D Accounts Receivable Settlement Terms..........................D-l
Exhibit E Treatment and Collection Policy...............................E-l
Exhibit F Mechanized Adjustment Records.................................F-l
Exhibit G Adjustments...................................................G-l
Exhibit H DPS Billing Policy............................................H-l
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.
3
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 November, 2002 (the "Effective Date"), by and between Qwest Corporation,
a Colorado corporation ("Qwest") and SGN LLC, a Delaware limited liability
company ("Customer") (each a "Party" and together the "Parties"), acting through
their authorized representatives.
WHEREAS, Qwest Dex, Inc. ("Dex"), Qwest Communications International Inc.
"QCII"), Qwest Services Corporation ("QSC") and Dex Holdings LLC ("Buyer") have
entered into that certain Purchase Agreement dated as of August 19, 2002 (the
"LLC Purchase Agreement"), pursuant to which Dex has agreed, subject to the
terms and conditions set forth therein, to (i) contribute certain of its assets
and liabilities to Customer, and (ii) sell all of the outstanding limited
liability company interests of Customer to Buyer following such contribution;
and
WHEREAS, in connection with the LLC Purchase Agreement, Dex, QCII, QSC and Buyer
entered into that certain Purchase Agreement, dated as of even date therewith
(the "LLC II Purchase Agreement"), pursuant to which Dex has agreed, subject to
the terms and conditions set forth therein, to (i) contribute certain of its
assets and liabilities to GPP LLC, and (ii) sell all of the outstanding limited
liability company interests of GPP LLC to Buyer following such contribution on a
certain date (the "the Second Closing Date"); and
WHEREAS, Sections 7.2(g) and 7.3(f) of the LLC Purchase Agreement provide that
the obligations of Dex, QSC, QCII and Buyer to consummate the closing under the
LLC 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 0575.
NOW, THEREFORE, in consideration of the mutual benefits accruing to each Party
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby covenant and agree as follows:
1. Purpose of Agreement
--------------------
A. The purpose of this Agreement is to set forth terms and conditions
pursuant to which Qwest will provide the Services for Customer's business
of publishing telephone directory products and services consisting
principally of searchable (e.g., by alphabet letter or category) multiple
telephone listings and classified advertisements that are delivered or
otherwise made available to End Users in tangible media (e.g., paper
directories, CD-ROM) or electronic media (e.g., Internet), as presently
conducted by Customer. Such products and services of Customer will
hereinafter be referred to collectively as DPS services.
B. Qwest agrees to xxxx Customer's DPS services to End User accounts within
the territory comprised of the seven states of Colorado, Iowa, Minnesota,
Nebraska, New Mexico, North Dakota, and South Dakota.
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.
4
C. Upon the Second Closing Date, Qwest and GPP LLC will enter into an
agreement on substantially the same terms and conditions as this
Agreement (including with respect to pricing) (a copy of the form of
which is attached to the LLC II Purchase Agreement), pursuant to which
Qwest will agree to xxxx GPP LLC's DPS services to End User accounts
within Arizona, Idaho, Montana, Oregon, Utah, Washington, and Wyoming for
up to the remainder of the term of this Agreement.
2. Scope of Agreement
------------------
This Agreement defines the terms and conditions for which Qwest will provide
DPS to Customer and includes the following Exhibits:
Exhibit A Definitions;
Exhibit B Description of Services;
Exhibit C Price Lists;
Exhibit D Accounts Receivable Settlement Terms;
Exhibit E Treatment and Collection Policy;
Exhibit F Mechanized Adjustment Records;
Exhibit G Adjustments;
Exhibit H DPS Billing Policy; and
Exhibit I ASK End User Account Information.
The above referenced Exhibits are attached hereto and incorporated herein by
reference.
3. Responsibilities of Customer
----------------------------
A. Customer will utilize uniquely designated ABECs, assigned by Qwest from
an authorized list provided by Telcordia Technologies, for purposes of
billing DPS.
B. Prior to submitting any new DPS services for billing, Customer agrees to
prepare and submit the Qwest Billing Service Request Form (attached
hereto as Attachment 1 of Exhibit B) for Qwest approval, as further
described in Exhibit B, Section II. Customer further agrees to submit,
together with a written Billing Service Request Form, the following
documentation: 1) marketing materials, 2) program description/content
materials, 3) subscriber authentication processes utilized for approval,
and 4) any known historical subscriber dispute and Adjustment activity
information.
C. For each DPS Billing Transaction submitted to Qwest for billing, Customer
will provide as part of such Billing Transaction, pertinent data for
presentation on the End User xxxx with the appropriate level of detail to
ensure the presentation of the charge/credit on the xxxx is a true
representation of the transaction in all material respects. Without
limiting Customer's obligations as set forth in the previous sentence,
for each DPS Billing Transaction submitted to Qwest for billing, Customer
will provide the following information in order to ensure the
presentation of the charge/credit on the xxxx 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 User's xxxx is a true representation of the
transaction, as further specified in Section 3.C above.
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.
5
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 xxxx that advises End Users
that failure to pay for DPS charges billed within the Qwest shared-xxxx
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 xxxx that
contains Customer's charges. Customer will provide Qwest with a
photo-quality reproduction of its logo for printing on the End User xxxx.
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
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.
6
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 xxxx in which Qwest is the provider of local
telephone service (subject to the successor provisions contained herein).
C. Qwest interstate and intrastate Services will be provided in accordance
with the terms and conditions of this Agreement.
D. Except as otherwise provided herein, presentation of Customer's portion
of the xxxx 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, xxxx format, type of
Billing Transactions, Market Messages and relationship to others within
the same xxxx.
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
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.
7
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 Charges
---------------------
A. Qwest has three distinct operating regions, Central, Eastern and Western
Regions, (hereinafter each operating region will be individually referred
to as a "Qwest Region").
B. Customer acknowledges and agrees that, pursuant to the terms and
conditions of the LLC Purchase Agreement, it is responsible for paying
the initial set-up cost for the implementation for each Customer ABEC and
the PARS in the manner contemplated by Exhibit D. Customer further
acknowledges and agrees that an additional set-up charge will apply for
the implementation for each, if any, additional billing identifiers that
are implemented in any Qwest Region at Customer's request (each a
"Developmental Charge").
C. All Developmental Charges resulting from Custom Request work, as set
forth in Exhibit B, Section II, initiated and authorized by Customer,
will be due and payable to Qwest at the then current rates (unless
otherwise agreed by the Parties) as follows:
(i) if such Developmental Charges are equal to or less than one
hundred and fifty thousand dollars ($150,000), then Customer will pay
all such Developmental Charges in advance within thirty (30) days
after Qwest has agreed to implement the request; and
(ii) if such Developmental Charges are greater than one hundred and
fifty thousand dollars ($150,000), then Customer will pay (a) 50% of
such Developmental Charges (the "Initial Payment") in advance within
thirty (30) days after Qwest has agreed to implement the request, (b)
25% of such Developmental Charges within thirty (30) days after the
date of the Initial Payment and (c) the remaining 25% of such
Developmental Charges within sixty (60) days after the date of the
Initial Payment; provided, however, that 100% of the Developmental
Charges will be paid no less than thirty (30) days prior to the
project's implementation date.
6. Service Commitment
------------------
Customer understands and agrees that Qwest requires an annual minimum
(hereinafter "Service Commitment") in the amount of $65,000.00 for each
applicable Qwest Region, in recurring Service charges for each ABEC that is
utilized for billing Customer's DPS services. Such Service
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.
8
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.
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 xxxx 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.
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.
9
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.
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.
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.
10
B. Both Parties agree that the Audit will be limited to a statistically
valid sample with a ninety percent (90%) confidence level and be further
limited to the exact subject matter outlined in the written notification,
as described in paragraph E, below. All Qwest expenses incurred during
the Audit, including, but not limited to, investigative work, extraction
of data and travel, will be shared equally by the Parties.
C. At such time as Customer desires to expand an Audit beyond a ninety
percent (90%) confidence level, Customer agrees to pay all of Qwest's
reasonable expenses for the incremental Audit activities required,
including, but not limited to, account extraction, masking, analyzing
accounts, and other Audit activities, at the rates set forth in Exhibit
C, Consulting Services.
D. At such time as an Audit is requested, the Parties will share equally all
expenses associated with hiring a single independent auditor to perform
the Audit, provided, however, that if the Audit proves a discrepancy in
excess of fifteen percent (15%) in favor of Customer, Qwest will pay all
such expenses. Prior to performing an Audit, the independent auditor will
be required to sign a joint non-disclosure agreement with Customer and
Qwest.
E. To initiate an Audit, Customer will provide Qwest with written notice of
its intent to Audit as well as the specific requirements of the Audit.
Such requirements will identify:
1. the exact Service to be audited;
2. the desired start date;
3. the desired Audit location;
4. Customer's representatives; and
5. specific materials to be reviewed, i.e.,
a. number of accounts;
b. type of accounts;
c. Billing Transaction detail; and
d. time period of data to be reviewed.
F. After the Parties have agreed on the specific details of an Audit,
including all requirements, a detailed time and cost estimate will be
prepared by Qwest in accordance with the prices specified in Exhibit C,
Consulting Service.
G. The independent auditor will have the right, on behalf of Customer, to
review all such records and accounts as may, under recognized or
generally accepted accounting practices, or as otherwise will be
reasonably necessary for the completion of the Audit, contain information
on Customer's End User accounts and Services. Qwest will cooperate with
all reasonable requests of the independent auditor and provide as
promptly as reasonably practicable all information relevant to such
request (subject to the other provisions of this Agreement including
Section 9.C and the remainder of this Section 9.G). All information
reviewed by the independent auditor is considered Confidential
Information as such term is defined in Section 17 hereof. Qwest will
provide for review extracts or masked data containing information
pertinent only to Customer. Qwest will not provide for review portions of
source documents that contain information relating to other entities for
which Qwest is providing Services.
H. Upon completion of the Audit, corrective action, if any, will be
initiated within thirty (30) days of the mutually agreed upon resolution.
Any Qwest liability for Services disclosed by the Audit will result in an
adjustment, which will be limited in accordance with the provisions of
Section 10.
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.
11
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. Billinq Errors and Limitation of Liability
------------------------------------------
A. Customer and Qwest agree to use commercially reasonable efforts to
provide each other verbal notification immediately upon discovery of
billing errors followed by written notification within ten (10) Business
Days. Such written notification will contain detailed information to aid
in identifying the cause of the billing error and its correction. Qwest
agrees to use commercially reasonable efforts to correct billing errors
within thirty (30) days of notification (by Customer) or discovery (by
Qwest). Where meeting the thirty (30) day objective is not possible,
Qwest will notify Customer in writing of the expected resolution date.
B. Qwest makes no warranties, express or implied, as to any Service provided
hereunder, except as expressly provided herein. Without limiting any
representation or warranty as expressly provided herein, Qwest
specifically disclaims any and all implied warranties, including without
limitation, any implied warranties of merchantability, fitness for a
particular purpose, or title or non-infringement.
C. Subject to the limitations set forth in Section 10.G and Section 18, if
Qwest, directly due to its negligence or willful misconduct, fails to
xxxx Customer's Billing Transactions, the Parties agree as set forth
below in this Section 10.C.
1. Qwest will promptly reprocess and xxxx 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
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.
12
(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 xxxx 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 Xxxx 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 xxxx that
includes a Billing Transaction that complies with Section 4.D, and
deposits the xxxx with the United States Postal Service, it will be
deemed to have "billed" the Billing Transaction contained on such
xxxx.
D. Subject to and except as set forth in Section 10.C, Qwest's total
liability for breach, non-performance or inadequate performance of its
obligations hereunder and Customer's sole and exclusive remedy for any
loss, cost, claim, injury, liability, or expense, including reasonable
attorneys' fees (collectively, "Losses"), regardless of theory, for the
following occurrences, will be limited to the lesser of the amounts paid
by Customer hereunder, or the amount of actual damages incurred measured
and further limited as follows:
1. If Qwest, due to gross negligence or willful misconduct, fails to
collect or perform collection activities of Customer's End User
Accounts resulting in increased net bad debt, Qwest's total liability
and Customer's sole and exclusive remedy for any Losses resulting from
this failure to perform, regardless of theory, will be limited to the
associated actual price of the Xxxx 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.
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.
13
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.
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 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
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.
14
by the Parties that no indemnification will be made under this
Section 12.8 for Losses arising out of any claims asserted against
Qwest for its billing or other business activities generally which is not
specifically attributable to Qwest's billing of Customer's Billing
Transactions).
C. The Indemnified Party will notify the Indemnifying Party promptly in
writing of any written claims, lawsuits, or demands by third parties for
which the Indemnified Party alleges that the Indemnifying Party is
responsible under this Section and, at the request of the Indemnifying
Party, tender the defense of such claim, lawsuit or demand to the
Indemnifying Party. The Indemnified Party also will cooperate in every
reasonable manner with the defense or settlement of such claim, demand,
or lawsuit.
D. The Indemnifying Party will not be liable under this Section for
settlements by the Indemnified Party of any claim, demand, or lawsuit
unless the Indemnifying Party has approved the settlement in advance or
unless the defense of the claim, demand, or lawsuit has been tendered to
the Indemnifying Party in writing and the Indemnifying Party has failed
promptly to undertake the defense.
E. Under the terms of this Agreement, Qwest may provide to Customer certain
information regarding Customer's subscribers. Qwest is releasing to
Customer such information based on Qwest's first-hand knowledge of its
own experiences with the End-User involved. Customer agrees to defend,
indemnify and hold Qwest harmless from and against any Losses, regardless
of theory, arising out of or related to the release of any Customer
subscriber information by Qwest to Customer of a type that is 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
xxxxxxxx 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.
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.
15
3. Customer will be solely responsible for the computation, reporting, and
payment of all Customer Taxes and surcharges applicable to the services
provided by Customer to its End Users and will be solely responsible for
separately identifying the applicable Taxes for its End Users. Where
applicable, Customer agrees to populate the appropriate indicators to
advise Qwest that the DPS Billing Transaction is tax-exempt or that all
applicable taxes have been included in the Billing Transaction amount or
submitted in a separate Billing Transaction.
4. Any communications from End Users relating to Customer Taxes will be the
responsibility of Customer. Customer will respond promptly to all
complaints lodged by End Users regarding Customer's treatment. All
determinations as to the removal, addition, or adjustment of Customer
Taxes to be billed to End Users will be the responsibility of Customer.
To the extent Adjustments are made by Customer, with respect to
Customers' DPS services billed by Qwest under this Agreement, such
Adjustments will include all applicable federal, state and local taxes or
tax related items. All communications with taxing authorities regarding
Customer Taxes applicable to Customer's transactions will be the
responsibility of Customer. Any communication Qwest receives from an End
User or taxing authority regarding Customer Taxes will be referred
promptly to Customer.
5. In the event any federal, state, or local laws, court orders, or agency
orders, rules, or regulations direct a change to the billing or reporting
of taxes, or xxxx 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 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.
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.
16
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.
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.
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.
17
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 xxxx a
Billing Transaction, or failure to properly xxxx a Billing Transaction,
to an End User will be asserted more than eighteen (18) months after the
Billing Transaction was or should have been billed.
B. No other claim or demand under this Agreement, including demands made
under the arbitration section hereof, or any other demand or claim with
respect to this Agreement may be made or brought by either Party more
than two years after the date of the event that gave rise to the demand
or claim except that: 1) the limitation period herein will not apply to
claims for revenue due Customer from its End Users to the extent Qwest
has collected and retained such revenue; 2) a demand or claim for
indemnification under this Agreement may be made or brought by a Party
for two years after the accrual of the cause of action for indemnity; and
3) any claim in the nature of fraud or concealment may be brought within
two years of discovery of the existence of such fraud or concealment.
16. Term and Termination of Agreement
---------------------------------
A. This Agreement will become effective as of the first Business Day after
the Closing (as such term is defined in the LLC Purchase Agreement) (the
"Commencement Date") and will continue for two years, through November 7,
2004, unless earlier terminated in whole or in part as provided herein.
B. Customer may (i) terminate this Agreement for convenience and without
penalty upon no less than thirty (30) days' prior written notice to
Qwest, 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 16.9, 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 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.
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.
18
Qwest agrees to xxxx for Billing Transactions that Qwest determines to
have been in the billing system as of the date of termination or
expiration. Unless otherwise agreed by the Parties, Qwest will continue
to provide such transition Services for an interim period, not to exceed
twelve (12) months from the date of termination or expiration, as
described in Exhibit D, Section 13. Customer will pay Qwest for all
Services provided to Customer during such transition period in accordance
with the payment terms set forth in this Agreement.
17. Proprietary and Confidential Information
----------------------------------------
A. As used herein, "Confidential Information" will mean information
disclosed by one Party to the other in the course of the provision of
Services, and will include the existence of this Agreement and all of its
terms, conditions and provisions.
B. Qwest and Customer agree to hold such Confidential Information in
strictest confidence and will use same solely for the purposes of this
Agreement unless otherwise authorized in writing by the other Party.
Neither Party will disclose such Confidential Information to anyone
except (i) its employees, agents, consultants or subcontractors to whom
disclosure is necessary for the purposes set forth in this Agreement or
(ii) as required by law, rule, regulation or court order (and the Party
that is required to make such disclosure will first notify the other
Party of such disclosure obligation). The disclosing Party will
appropriately notify each employee, agent, consultant and/or
subcontractor to whom disclosure is made that such disclosure is made in
confidence and must be kept in confidence in accordance with this
Agreement.
C. All Confidential Information, unless otherwise specified in writing, will
remain the property of the disclosing Party. Confidential Information
will not be reproduced except to the extent necessary to accomplish the
purpose and intent of this Agreement, or as otherwise may be permitted in
writing by the disclosing Party. In the event the disclosing Party grants
the other Party permission to copy Confidential Information, the Party
seeking such permission agrees that each such copy will contain and state
the same confidential or proprietary notices or legends that appear on
the original. Nothing in this Agreement will be construed as granting any
right or license under any copyrights, inventions or patents now or
hereafter owned or controlled by either Party. All Confidential
Information, including copies thereof, will be returned to the disclosing
Party or destroyed after the recipient Party's need for it has expired or
upon the request of the disclosing Party.
D. The obligations imposed in this Agreement will not apply to any
information that:
1) is or becomes publicly available other than through disclosure by the
recipient Party;
2) becomes available to the recipient Party from a third party who is
under no restriction with respect to disclosure of such information;
3) is independently developed by the recipient Party; or
4) is communicated by the recipient Party to a third party with express
written consent of the disclosing Party.
E. Without the prior consent of the other Party, neither Party will disclose
to any third person, other than as provided in paragraph B above, the
existence or purpose of this Agreement, the terms or conditions hereof,
nor the fact that discussions are taking place and that Confidential
Information is being shared. Furthermore, neither Party nor its agents
will reveal the other as the source of Confidential Information described
in this Agreement without its express, prior written consent.
Notwithstanding the foregoing, Customer may advise its End Users that it
will xxxx for its DPS services through Qwest.
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.
19
18. Force Majeure
-------------
A. In no event will either Party be liable to the other for any delay or
other failure to perform hereunder that is due to: (i) the other Party's
unreasonable delay in supplying or failure to supply information,
materials or services expressly provided for under the terms of this
Agreement; or (ii) occurrences or circumstances beyond such Party's
reasonable control (including epidemic, riot, unavailability of resources
due to national defense priorities, war, armed hostilities, strike,
walkouts, civil disobedience, embargo, fire, flood, drought, storm,
pestilence, lightning, explosion, power blackout, earthquake, volcanic
eruption or any act, order or requirement of a regulatory body, court or
legislature, civil or military authority, foreseeable or unforeseeable
act of God, act of a public enemy, act of terrorism, act of sabotage, act
or omission of carriers, or other natural catastrophe or civil
disturbance) during the period and to the extent that such extraordinary
condition delays, impairs or prevents such Party's performance (each a,
"Force Majeure Condition"). If either Party does not perform any of its
obligations hereunder as a result of a Force Majeure Condition, and the
other Party's performance of its obligations hereunder are conditioned
upon the first Party's performance, then notwithstanding anything in this
Agreement to the contrary, the other Party's performance will be excused
(including payment obligations) until such time as the first Party has
performed those obligations prevented by the Force Majeure Condition.
B. If any such Force Majeure Condition occurs and results in a delay or
failure in performance of any part of a Party's obligations under this
Agreement for more than sixty (60) days, the other Party may, by written
notice given to the Party whose performance was delayed or who failed to
perform, immediately terminate that part of this Agreement that will be
affected by such delay or failure to perform, without penalty.
19. Default
-------
A. A failure by either Party to perform any material agreement, obligation
or covenant in this Agreement, and any material breach of a
representation or warranty made in this Agreement, in each case that is
not cured within thirty (30) days after written notice thereof from the
other Party (unless a shorter or longer period is expressly set forth
herein) will be deemed to be a default.
B. If a breach is capable of remedy, a Party may cure such breach by taking
all of the following steps prior to the end of the applicable cure
period: (1) notifying the non-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).
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.
20
20. Amendments; Waivers
-------------------
This Agreement or any part thereof or any Exhibits hereto or documents
referred to herein may be modified or additional provisions may be added by
written agreement signed by or on behalf of both Parties. No amendment or
waiver of any provision of this Agreement and no consent to any default
under this Agreement will be effective unless the same will be in writing
and signed by or on behalf of the Party against whom such amendment, waiver
or consent is claimed. In addition, no course of dealing or failure of any
Party to strictly enforce any term, right or condition of this Agreement
will be construed as a waiver of such term, right or condition.
21. Assignment
----------
Neither this Agreement nor any rights or obligations hereunder are
assignable by one Party without the express prior written consent of the
other Party; provided, however, that: (i) either Party may assign this
Agreement upon written notice to the other Party to any of its Affiliates
without the consent of the other Party if the assigning Party requires such
Affiliate to agree in writing to assume this Agreement and the assigning
Party remains liable for its obligations hereunder; (ii) a Change of Control
of either Party will not be deemed to be an assignment of this Agreement,
provided that if the relevant Party is no longer directly bound as a party
to this Agreement (e.g., because the Change of Control is a sale or transfer
of assets or is the result of a transaction pursuant to which the successor,
surviving or acquiring entity does not automatically succeed to the
obligations of such Party by operation of law), the successor, surviving or
acquiring entity is required to agree in writing (whether as part of the
acquisition agreement that provides for the other Party to be a third party
beneficiary or in a separate agreement) to assume this Agreement (iii)
Customer may assign this Agreement and the rights and obligations under it
to its lenders for collateral security purposes, so long as Customer remains
liable for its obligations hereunder; and (iv) Customer may assign this
Agreement with respect to a particular service area(s) in the Qwest Region
to any person (other than an affiliate of Customer) upon written notice to
Qwest so long as Customer will require the acquiring person to agree in
writing (whether as part of the acquisition agreement with Customer that
provides for Qwest to be a third party beneficiary or in a separate
agreement) to assume this Agreement and Customer will have no rights or
obligations under this Agreement with respect to such service area(s).
22. Notices and Demands
-------------------
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
000 Xxxxxxxxx Xxxxx West, 1801 California Street, Room 0000
Xxxxxx Xxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxx 00000 Attn: Xxxxx Xxxxx, Customer Account Manager
Attn: Xxxx Xxxxxx Phone: (000) 000-0000
Phone: (000) 000-0000 Fax: (000) 000-0000
Fax: (303) 784-l 594 Email: xxxxxxx@xxxxx.xxx
Email: xxxxxxx@xxxxx.xxx
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.
21
If personal delivery is selected as the method of giving notice under this
Section, a receipt of such delivery will be obtained. The address to which
such notices, demands, requests, elections or other communications is to be
given by either Party may be changed by written notice given by such Party
to the other Party pursuant to this Agreement.
23. Representations and Warranties
------------------------------
A. Each Party represents and warrants that (i) it has the full right and
authority to enter into, execute, deliver and perform its obligations
under this Agreement, (ii) this Agreement constitutes a legal, valid and
binding obligation, enforceable against such Party in accordance with its
terms, subject to bankruptcy, insolvency, creditors' rights and general
equitable principles, and (iii) its execution of and performance under
this Agreement will not violate in any material respects any applicable
existing regulations, rules, statues 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 xxxx or trade name of Qwest
appearing on or in Customer's bills printed and distributed pursuant to
this Agreement infringes the trademark rights of any third party.
24. Relationship of Parties
-----------------------
The relationship of the Parties will not be that of partners, agents, or
joint venturers, and nothing contained herein will be deemed to constitute a
partnership or agency agreement between them for any purposes, including,
without limitation, for federal income tax purposes. Each Party will be and
remain an independent contractor and for no purpose will the employees or
agents or any sub-contractor of one Party be construed to be an employee of
the other Party in connection with the performance of this Agreement.
25. Third-Party Beneficiaries
-------------------------
This Agreement will not provide any person not a Party to this Agreement,
(specifically including, but not limited to, End Users), any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
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.
22
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.
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.
23
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date
first written above.
SGN LLC QWEST CORPORATION
By: Qwest Dex, Inc., its sole member
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxx
---------------------------- ---------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxx X. Xxxx
Title: President Title: Vice President
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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