BILLING AND COLLECTION SERVICES AGREEMENT
This Agreement is made in duplicate this 1 day of (month) November,
(year) 2001,
between YAK COMMUNICATIONS (CANADA) INC. (name),
00 Xxxx Xxxxxx Xxxxx, Xxxxx 000 (xxxxxxx)
Xxxxxxxxxxx, Xxxxxxx X0X 0X0 (city and province),
hereinafter referred to as "the Service Provider" or "the SP",
and XXXX CANADA (name),
0000 Xxxxxx Xxxx Xxxx (xxxxxxx)
Xxxxxxxx, Xxxxxx X0X 0X0 (city and province),
hereinafter referred to as "the Xxxxxx".
The SP and the Xxxxxx may also be referred to individually as "a Party"
and collectively as "the Parties".
Whereas the Xxxxxx will provide Billing and Collection Services to the
SP for Eligible Services provided by the Service Provider; and
Whereas the SP wishes to purchase Billing and Collection Services from
the Xxxxxx.
The Parties in consideration of the mutual covenants and promises in
this Agreement therefore agree as follows:
Article 1 Definitions
1.1 With respect to the definitions herein, and wherever the facts or
context so requires within this Agreement, the use of words or phrases,
in the singular or the plural, as a noun or a verb, in the past, present
or future tense, shall have the meaning ascribed to the word or phrases
in this Article 1.
1.2 In this Agreement including the preamble, the following terms or phrases
shall mean:
a) "Accounts Receivable" the amount charged by the SP, including all
Taxes, for the use of the SP's Eligible Services by Customers.
b) "Accounts Receivable Management Discount" a discount which the
Xxxxxx applies to the price of the Accounts Receivable received from
the SP to compensate the Xxxxxx for its liability for Bad Debt.
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c) "Bad Debt" Accounts Receivable, which have been billed by the Xxxxxx
to Customers, but are not paid by Customers, and which are not
disputed by Customers as provided for in the Billing and Collection
Services Procedures. Bad Debt excludes charges incurred
fraudulently.
d) "Billing and Collection Service" a billing and collection service
provided by the Xxxxxx to the SP, for Eligible Services offered by
the SP to Customers.
e) "Billing and Collection Services Procedures" the document referred
to in Article 2.2.
f) "Billing and Collection Technical Guideline" the document referred
to in Article 2.1.
g) "Call" a single use of an Eligible Service in respect of which an
Exchange Message Interface (EMI) record is created.
h) "Chargeback" an Account Receivable which has been billed by the
Xxxxxx to a Customer, but which is not paid by the Customer or which
is disputed by the Customer, and which does not constitute Bad Debt.
Reasons for Chargebacks are identified by return codes specified in
the Billing and Collection Technical Guideline.
i) "CISC" the CRTC Industry Steering Committee or successor committees.
j) "CRTC" the Canadian Radio-television and Telecommunications
Commission.
k) "Customer" a party who: (1) is responsible for payment of charges
associated with the use of Eligible Services for which the SP is
entitled to be compensated, (2) does not have an established billing
relationship with the SP for Eligible Services on the date that the
Eligible Services are used, and (3) has an established billing
relationship with the Xxxxxx on the date that the Eligible Services
are used.
l) "Eligible Services" telecommunications services provided by the SP
to Customers, and which are listed in Schedule I.
m) "GST" applicable Goods and Services Tax.
n) "HST" applicable Harmonized Sales Tax.
o) "PST" applicable Provincial Sales Tax.
p) "Rebill" an Accounts Receivable provided to the Xxxxxx by the SP,
for inclusion in a Customer invoice, which same Accounts Receivable
had previously been provided to the
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Xxxxxx by the SP, for inclusion in an earlier invoice to the same
Customer. The amount of the charges to the Customer, including
Taxes, must be the same.
q) "Reject" Accounts Receivable that have been returned to the SP by
the Xxxxxx before it has been included on a Customer's invoice,
either because it fails the Xxxxxx'x pre-billing fraud edits or for
reasons identified by return codes specified in the Billing and
Collection Technical Guideline including the Exchange Message
Interface (EMI)
r) "Tariffs" the Xxxxxx'x tariffs, general terms of service, general
regulations, and or terms of service, as amended from time to time,
and as approved by the CRTC, including, but not limited to any
limitations of liability.
s) "Tax" GST/HST (where applicable), PST (where applicable) and any
other applicable provincial or federal taxes.
t) "Validation" the process whereby the SP must access a database or
databases to determine the requirements to proceed with a call and
adhere to such requirements.
Article 2 Associated Documents
2.1 The Billing and Collection Technical Guideline contains the technical
specifications of the Billing and Collection Service following industry
accepted guidelines with any modifications required to reflect the
unique aspects of the Billing and Collection Services provided by the
Xxxxxx. The Billing and Collection Technical Guideline was prepared, and
its contents agreed, by the Billing and Collection Task Force
constituted under the direction of CISC and will be amended from time to
time following the document Change Management process established for
all CISC documents. The Billing and Collection Technical Guideline
references the EMI maintained by the Alliance for Telecommunications
Industry Solutions (ATIS) and includes the associated Canadian Locally
Negotiated Guidelines. The Billing and Collection Technical Guideline,
is mutually agreed to by the SP and the Xxxxxx.
2.2 The Billing and Collection Services Procedures contain a description of
the Xxxxxx'x collection procedures and claims investigation and
adjustment functions used by its business office to handle, resolve,
and/or refer Customer inquiries and claims. The Billing and Collection
Services Procedures is prepared by the Xxxxxx and provided to the SP.
The Billing and Collection Services Procedures shall not be considered
to be an integral component of this Agreement.
Article 3 Scope of the Agreement
3.1 This Agreement relates to the purchase by the Xxxxxx from the SP of
Accounts Receivable, and the corresponding sale, assignment, transfer
and set over by the SP to the Xxxxxx of all rights, title and interest
in these Accounts Receivable, to permit the Xxxxxx to attempt to
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collect these Accounts Receivable from the Customer.
3.2 The following types of Accounts Receivable, may be Rejected and the
Xxxxxx may apply relevant charges pursuant to Articles 7 and 8, provided
the Reject is received by the SP within 15 calendar days of the Account
Receivable being received by the Xxxxxx:
a) for which there are entries in the fields of the associated Account
Receivable records provided by the SP which do not conform to the
format or content as prescribed by the Billing and Collection
Technical Guideline;
b) associated with Eligible Services for which the Account Receivable
is received by the Xxxxxx more than 120 calendar days beyond the
date that the Call was made;
c) for Eligible Services charged to telephone numbers of persons that
are not Customers on the date that the Call was made;
d) for Eligibie Services charged to accounts that did not exist on the
date that the Call was made;
e) for Eligible Services that are Rebilled more than once;
f) for Eligible Services which are fraudulent or suspected to be
fraudulent;
g) for Eligible Services for which the charge has been duplicated; or
h) for Calls requiring Validation where the Validation has not
occurred.
3.3 The following types of Accounts Receivable, may be Chargedback and the
Xxxxxx may apply relevant charges pursuant to Articles 7 and 8 provided
the Chargeback is received by the SP no more than 210 calendar days
beyond the date that the Call was made:
a) for fraudulent or suspected fraudulent use of Eligible Services;
b) for Eligible Services for which the charge has been duplicated,
c) for Calls requiring Validation where the Validation has not
occurred; or
d) for Accounts Receivable where the Customer denies knowledge of the
transaction, requests an adjustment due to dialing error, or any
other condition as described in the Billing and Collection Services
Procedures.
3.4 Notwithstanding anything herein, Accounts Receivable which are
identified as Bad Debt will not be Chargedback.
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3.5 Notwithstanding anything herein, the Xxxxxx will not purchase and the SP
will not sell, assign, transfer or set over the Accounts Receivable for
transactions associated with calls or programs that do not comply with
all applicable legal and regulatory requirements. In the event that the
SP provides Accounts Receivable for transactions associated with calls
or programs that do not comply with applicable legal and regulatory
requirements, those Accounts Receivable may be Rejected, or Chargedback
and the Xxxxxx may apply relevant charges pursuant to Articles 7 and 8.
3.6 Title to the Accounts Receivable which the Xxxxxx purchases and the SP
sells, assigns, transfers or sets over pursuant to this Agreement will
be deemed to have passed to the Xxxxxx upon such Accounts Receivable
successful completion of all the Xxxxxx'x pre-billing edits as described
in the Billing and Collection Technical Guideline or on the 15th
calendar day after the Accounts Receivable were received by the Xxxxxx,
whichever occurs first.
3.7 In the event an Account Receivable is Chargedback, title to such
Accounts Receivable shall be deemed to have reverted to the SP upon the
SP's receipt and acceptance through edits as provided for in the Billing
and Collection Technical Guideline, of the Chargeback record applicable
to such Account Receivable or on the 15th calendar day after the
Chargeback was received by the SP, whichever occurs first.
3.8 Either Party is entitled to utilize the services of a third party in
performing some or all of its responsibilities under this Agreement
provided that at all times the SP and Xxxxxx shall remain liable to each
other for all obligations and payments under this Agreement.
Article 4 Rights and Responsibilities of the Xxxxxx
4.1 The Xxxxxx will provide the following Billing and Collection Services in
accordance with the terms and conditions contained herein, the
applicable provisions of the Xxxxxx'x Tariffs and in accordance with
practices contained in the Billing and Collection Services Procedures:
a) preparation and rendering of bills to Customers for charges
associated with Eligible Services used by Customers, for which the
Accounts Receivable have been purchased by the Xxxxxx. The Xxxxxx
will include the unaltered amount of the relevant charges, subject
to any Tax adjustments as described in Article 6 herein, in
statements distributed to Customers responsible for the payment of
charges for the Eligible Services. The Xxxxxx will provide
sufficient information on the Customer's xxxx to allow the Customer
to identify the service being billed for and the charges associated
with the call as specified in the Billing and Collection Technical
Guideline;
b) attempt to collect payments for purchased Accounts Receivable,
including appropriate Taxes;
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c) answering of Customer questions regarding charges billed by the
Xxxxxx for Eligible Services provided by the SP, excluding
questions about the details of the SP's services, rates, rate
structures and similar matters. As provided in Article 5.7, the SP
will provide the Xxxxxx with an inquiry telephone number for use by
Customers who wish to have information on the matters excluded
above; and
d) application of credits and adjustments to Customer accounts.
4.2 The Xxxxxx shall exercise the same due diligence in the collection of
Accounts Receivable that the Xxxxxx has purchased from the SP as it does
in the collection of the Xxxxxx'x other Accounts Receivable that are
unrelated to Billing and Collection Services.
4.3 The SP acknowledges and agrees that the Xxxxxx will have full power and
authority, at any time, to notify any person concerned with the
assignment of the Accounts Receivable or otherwise affected by it, of
the fact that said assignment has been made.
4.4 The SP acknowledges and agrees that the Xxxxxx will have full power and
authority to register any and all financing statements and other similar
documentation under any applicable legislation so as to protect and
perfect its interest in the Accounts Receivable.
4.5 At any time during the continuance of this Agreement, the Xxxxxx will
have the right to sell, assign, transfer and set over the Accounts
Receivable with all or any rights, title and interests therein to any
person, firm or corporation, and the assignee thereof will acquire and
possess all the powers, rights and interests granted under this
Agreement and will be subject to any obligations of the Xxxxxx as
specified in this Agreement, provided that at all times the Xxxxxx shall
also remain liable to the SP for al1 obligations and payments under this
Agreement.
4.6 For any Accounts Receivable purchased by the Xxxxxx and subsequently
Chargedback, the Xxxxxx shall provide to the SP the Customer's name,
telephone number, and billing address.
4.7 The Xxxxxx shall employ reasonable efforts in an attempt to prevent or
curtail fraudulent activity. The Xxxxxx shall cooperate with the SP in
exchanging information and coordinating activities in an attempt to
prevent or curtail any activity of a fraudulent or suspected fraudulent
nature. The Xxxxxx shall employ reasonable efforts to ensure resellers
of the Xxxxxx'x local telecommunications services will also cooperate
with the Xxxxxx and the SP, as appropriate, in an attempt to prevent or
curtail fraudulent activity.
Article 5 Rights and Responsibilities of the SP
5.1 Notwithstanding anything in this Agreement, the SP retains the
discretion to determine which Eligible Services it offers to Customers
and which Accounts Receivable it sells to the
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Xxxxxx; however, the SP shall assign, transfer and set over all of its
rights, title and interest in and to any Accounts Receivable sold by it
to the Xxxxxx.
5.2 The SP will record all necessary billing details for all Eligible
Services. The billing details will be provided to the Xxxxxx in
accordance with the Billing and Collection Technical Guideline. The SP
is solely responsible for the accuracy of the billing details provided
to the Xxxxxx.
5.3 The SP will only submit to the Xxxxxx Accounts Receivable which are
prescribed in this Agreement.
5.4 The SP will only submit collect and xxxx to third calls to the Xxxxxx
which have been Validated.
5.5 For Accounts Receivable which are Rejected or Chargedback, the SP shall
pay to the Xxxxxx the full amount of all payments including Taxes, made
by the Xxxxxx to the SP, or issue credits for amounts owing by the
Xxxxxx for those Accounts Receivable, in accordance with Articles 7 and
8 herein.
5.6 The SP authorizes the Xxxxxx to use the name of the SP for the purpose
of identifying the SP on whose behalf the transaction is being billed in
the collection of all Accounts Receivable.
5.7 The SP shall provide, at its own expense, the inquiry telephone number
referred to in Article 4.1 c) and must be accessible at the inquiry
telephone number to respond to Customer inquiries at no charge. The SP
or its designated agent must speak directly, or be able to demonstrate
that it has made every reasonable effort to speak directly, to anyone
who has contacted the SP via the inquiry telephone number within two (2)
business days of receipt of any such contact.
5.8 The SP shall at the Xxxxxx'x request, notify any person(s) concerned
with the assignment of the Accounts Receivable or otherwise affected by
it, of the fact that said assignment has been made.
5.9 The SP shall be responsible to employ reasonable efforts in an attempt
to prevent or curtail fraudulent activity related to Eligible Services.
The SP shall cooperate with the Xxxxxx in exchanging information and
coordinating activities in an attempt to prevent or curtail activity of
a fraudulent or suspected fraudulent nature. The SP shall employ
reasonable efforts to ensure resellers of its services will also
cooperate with the Xxxxxx and SP, as appropriate, in an attempt to
prevent or curtail fraudulent activity.
Article 6 Taxation
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6.1 The Parties acknowledge that Taxes may apply to the charges for Eligible
Services provided by the SP. The SP shall determine Taxes associated
with Eligible Services to be levied on a Customer.
6.2 The SP shall calculate and identify to the Xxxxxx Taxes due on all
Accounts Receivable forwarded to the Xxxxxx. The SP shall identify the
GST/HST and PST by province.
6.3 The Xxxxxx shall xxxx and attempt to collect the Taxes unless the Xxxxxx
identifies the Customer as Tax exempt for either, or both, of GST/HST
and PST. If a Customer is Tax exempt, the appropriate Taxes will be
removed by the Xxxxxx prior to billing. Any remaining Taxes will be
recalculated by the Xxxxxx if necessary, and the revised Tax amounts
will be billed. The Xxxxxx will report to the SP the amount of Taxes,
that have been removed or adjusted as prescribed in the Billing and
Collection Technical Guideline, identifying GST/HST and PST by province.
6.4 The Parties agree that whichever Party is responsible to remit Taxes to
the appropriate government authorities, shall do so in a timely manner.
6.5 In any event, the SP shall indemnify and hold the Xxxxxx harmless for
any outstanding Taxes, interest or associated penalties which may
subsequently be claimed against the Xxxxxx, as purchaser of the Accounts
Receivable, arising from the SP's failure to properly calculate, or to
promptly notify the Xxxxxx, or to remit all applicable Taxes pursuant to
Article 6.
6.6 The Xxxxxx shall indemnify and hold the SP harmless for any outstanding
Taxes, interest and associated penalties which may subsequently be
claimed against the SP arising from the Xxxxxx'x failure to properly
identify or calculate any Tax exemption or to remit all applicable Taxes
pursuant to Article 6.4.
Article 7 Payment for Accounts Receivable
7.1 The Xxxxxx shall pay to the SP an amount equal to the full value of each
Accounts Receivable recorded, less an Accounts Receivable Management
Discount as detailed in the applicable Tariffs, less applicable Tax
exemptions, less applicable Tax remittances and less all associated
charges to the SP specified in this Agreement or the Xxxxxx'x Tariffs
including the full amount of each Accounts Receivable Rejected or
Chargedback. The resulting amount will be paid to the SP within
forty-five (45) days of the last day of the calendar month for which the
Accounts Receivable was recorded by the Xxxxxx, and in the event that
full payment is not made by this time, interest will subsequently accrue
on any outstanding balance at the rate set out in the SP's applicable
tariffs.
7.2 In the event that the Accounts Receivable Management Discount, plus the
associated charges to the SP, plus applicable Tax exemptions, plus
applicable Tax remittances, plus the full amount of all Accounts
Receivable Rejected or Chargedback exceeds the till value of the
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Accounts Receivable recorded during a calendar month, the SP shall pay
to the Xxxxxx the difference forty-five (45) days from the last day of
that month or thirty (30) days from the issuance by the Xxxxxx of an
accounting for the month, whichever occurs later, and in the event that
full payment is not made by this time, interest will subsequently accrue
on any outstanding balance at the rate set out in the Xxxxxx'x
applicable Tariffs.
7.3 Following the expiration or termination of this Agreement, in the
event that the Xxxxxx fails to collect Accounts Receivable from
Customers, and such failure would have resulted in a Chargeback during
the term of the Agreement, the SP shall pay the Xxxxxx the full amount
of the Chargeback plus the associated charges within forty-five (45)
days from the last day of the month during which the Chargeback occurs
or thirty (30) days from the issuance by the Xxxxxx of an accounting
for the month, whichever occurs later, and in the event that full
payment is not made by this time, interest will subsequently accrue on
any outstanding balance at the rate set out in the Xxxxxx'x applicable
Tariffs.
Article 8 Rates and Charges
In consideration of the Xxxxxx providing Billing and Collection Services to the
SP as described in this Agreement, the Xxxxxx shall charge the SP, and the SP
shall pay, rates and charges as detailed in the Xxxxxx'x applicable Tariffs.
Article 9 Accounting to the SP
9.1 The Xxxxxx shall provide reports to the SP, including an accounting of
the payment due to the SP for the Accounts Receivable purchased by the
Xxxxxx. The reports will be provided as prescribed by the Billing and
Collection Technical Guideline within forty-five (45) days of the last
day of the calendar month for which the Account Receivable was recorded
by the Xxxxxx.
9.2 Any report provided to the SP will be deemed to be correct unless the SP
notifies the Xxxxxx of any discrepancy therein within thirty (30) days
from the date the report is issued by the Xxxxxx.
9.3 In the event that an error is made by the Xxxxxx in the preparation of
any report, the Xxxxxx'x liability shall be limited to correcting the
same and to modifying the report accordingly in the next issue of such
reports.
Article 10 Limitation of Liability
10.1 The Xxxxxx'x liability for direct damages shall be subject to the
provisions regarding liability in its Tariffs or equivalent document.
Without restricting the generality of the foregoing, the Xxxxxx will not
be responsible to the SP for indirect, special, incidental or
consequential damage or loss in connection with or arising out of the
performance or non-performance of
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the terms of this Agreement howsoever caused, including, without
limiting the foregoing, any business or economic loss, notwithstanding
that the Xxxxxx has been advised or is aware of the possibility thereof.
10.2 The SP will not be responsible to the Xxxxxx for indirect, special,
incidental or consequential damage or loss in connection with or arising
out of the performance or non-performance of the terms of this Agreement
howsoever caused, including, without limiting the foregoing, any
business or economic loss, notwithstanding that the SP has been advised
or is aware of the possibility thereof.
10.3 The provisions of this Article 10 will survive the expiration or
termination of this Agreement.
Article 11 Term
This Agreement will be deemed to come into force on the 1 day of January, 2002
and will continue afterwards for successive month-to-month periods under the
same terms and conditions unless and until terminated by either Party upon one
month's prior written notice to the other Party, or pursuant to the provisions
of this Agreement concerning termination.
Article 12 Termination
12.1 Except as provided hereinafter, in the event that either Party is in
breach of any of the terms of this Agreement, or, without restricting
the generality of the foregoing, of any laws applicable thereto,
regulations or the Xxxxxx'x applicable Tariffs, the other Party may, by
notice to the Party in default, require the remedy of said breach or the
performance of the obligations hereunder. If the Party so notified fails
to remedy or perform within ten (10) days of the receipt of such notice,
the other Party may, without prejudice to all its rights and remedies in
respect of breach of contract, subject to the terms of this Agreement,
terminate this Agreement, in whole or in part, as specified in Article
12.7.
12.2 Where one Party (the Party in default) has received notification from
the other Party (the Party not in default) pursuant to Article 12.1 of
this Agreement and notwithstanding that the Party in default has
remedied such breach or has performed said obligation, in the event at
any time thereafter that such Party in default is found by the Party not
in default to have breached or to have failed to perform in respect of
the same provision(s) of this Agreement under which notification was
first provided pursuant to Article 12.1, the Party not in default will
have the right at its sole discretion to terminate this Agreement, in
whole or in part, as specified in Article 12.7.
12.3 If, in the Xxxxxx'x reasonable judgment, the provision of Billing and
Collection Services under this Agreement gives rise to an unreasonable
number of Customer complaints, the Xxxxxx may
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terminate this Agreement. Notwithstanding Article 12.7 below, the Xxxxxx
will provide thirty (30) days prior written notice to the SP for
termination under this Article.
12.4 In the event that Chargebacks assocated with the SP's Accounts
Receivable are at a level of 15% or more of the SP's total Accounts
Receivable for a period of two (2) consecutive months, or if the Bad
Debt associated with the SP's Accounts Receivable is at a level of 10%
or more of the SP's total Accounts Receivable for a period of two (2)
consecutive months, the Xxxxxx may at its sole discretion, terminate
this Agreement as specified in Article 12.7.
12.5 Any termination of this Agreement for breach of any of its terms will be
without prejudice to all rights and remedies available to the Party
terminating this Agreement in respect of such breach.
12.6 Notwithstanding Article 12.7, if one of the Parties becomes insolvent or
if insolvency or bankruptcy proceedings of any kind are initiated
against a Party, if a Party is placed in receivership or if a Party has
to perform a transfer of property in favour of its creditors or its
property is placed under sequestration or is subject to liquidation, the
other Party may, upon written notice, immediately terminate this
Agreement.
12.7 Prior to termination of this Agreement, in whole or in Part, pursuant to
Articles 12.1 or 12.2, the Party terminating the Agreement shall provide
the other Party with ten (10) days prior written notice stating the
reason for termination and the scheduled termination date. Additionally,
at least twenty-four hours prior to termination, the Party terminating
the Agreement shall advise the other Party that termination is imminent.
12.8 Without restricting the generality of the foregoing, all provisions of
this Agreement regarding amounts payable to the Xxxxxx for Billing and
Collection Services provided to the SP shall survive expiration or
termination of this Agreement.
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Article 13 Dispute Resolution
Should a dispute or disagreement of any kind (a "Dispute") arise with respect to
the interpretation or application of this Agreement, the Parties agree to the
procedures described in this Article to resolve the issue.
13.1 Good Faith Negotiations
a) Good faith negotiations will take place between the Parties with the
objective of resolving the Dispute.
b) If such good faith negotiations have not resolved the Dispute within
thirty (30) days from when it is first identified, either Party may
refer the matter in Dispute to the CRTC for resolution (for matters
within the jurisdiction of the CRTC), or the Parties may agree to
refer the Dispute to arbitration, in accordance with the process set
forth below.
13.2 Early Referral to the CRTC or to a Court of Competent Jurisdiction
At any time prior to the end of the thirty (30) day period for good
faith negotiations, if either Party reasonably perceives that the matter
must be dealt with on an urgent or priority basis, then that Party may
refer the Dispute to the CRTC (for matters within the jurisdiction of
the CRTC) or to a court of competent jurisdiction for resolution.
13.3 Arbitration
a) If the Dispute cannot be resolved by good faith negotiations within
thirty (30) days from when it is first raised, the Parties may
mutually agree to refer the issue to arbitration.
b) In the event that the Parties agree to refer the matter to
arbitration, the arbitration will take place in accordance with the
rules agreed to by the Parties and in compliance with applicable
legislation and procedural convention.
13.4 Other Matters
a) The Parties recognize that the CRTC may establish a list of
qualified arbitrators in telecommunications, and agree to refer to
that list in considering a possible arbitrator.
b) In the absence of events giving rise to Force Majeure, during the
entire period of the process to resolve a Dispute, the Parties will
continue to perform their obligations under this Agreement.
Article 14 Non-Waiver
The failure of either Party, at any time, to require performance by the other
Party of any provision, condition or covenant hereof will, in no way, affect its
right thereafter to enforce the provision, condition or covenant, nor will the
waiver by either Party of any Breach of any provision, condition
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or covenant hereof be taken or held binding upon the Party, unless in writing,
and the waiver will not be taken or held to be a waiver of any future breach of
the same provision, condition or covenant.
Article 15 Further Assurances
Each Party will execute such further documents and do such further things as the
other Party may reasonably request in order to carry out and give full force and
effect to all of the provisions of this Agreement.
Article 16 Entire Agreement
This Agreement, together with all matters incorporated by reference, constitutes
the entire agreement between the Parties with regard to matters dealt with under
this Agreement and there are no other conditions or warranties, expressed,
implied or statutory, applicable to the subject matter hereof.
Article 17 Conflict
In the event of conflict between this Agreement, the Billing and Collection
Technical Guideline and the Tariff, the provisions of this Agreement shall
firstly prevail, secondly the provisions of the Billing and Collection Technical
Guideline, then lastly, the provisions of the Tariff.
Article 18 Year 2000 Warranty
18.1 The Parties confirm that they shall use commercially reasonable efforts
to ensure that the Billing and Collection Service shall be "Year 2000
Compliant" prior to September 1, 1999, which means that each Party will
be able to accurately process date data (including, but not limited to,
calculating, comparing, and sequencing) including leap year
calculations, when used in accordance with the specifications for the
Billing and Collection Service, provided that all products and services
which interconnect with, or are used in combination with, the Billing
and Collection Service are "Year 2000 Compliant" and properly exchange
date data with it, and provided that no modifications or additions are
made to the Billing and Collection Service other than those agreed to by
the Parties.
18.2 Each Party has an obligation to advise the other Party if any product or
service which interconnects with, or is used in combination with, the
Billing and Collection Service is not "Year 2000 Compliant", and shall
advise the other Party of the date by which such "Year 2000 Compliancy"
will occur.
18.3 The warranties contained herein are subject to any limitation of
liability specified in this Agreement.
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Article 19 Confidentiality
19.1 All Customer related information provided to either Party pursuant to
this Agreement, including, but without restricting the generality of the
foregoing, the name, telephone number and billing address of any
Customer, may only be used for the purpose of billing Eligible Services
or where specifically required for completion of a transaction
associated with a service requested by the Customer (eg. certain 900
services). Services requiring additional customer information will be
identified in the Billing and Collection Technical Guideline.
Notwithstanding the foregoing, either Party may disclose a Customer's
name and address to an agent whom it has retained in the collection of
Accounts Receivable, provided the information is required for and is to
be used only for that purpose and appropriate safeguards have been
implemented to protect the privacy of Customers including any
restrictions on the use of non-published telephone numbers by third
parties.
19.2 All information provided to either Party pursuant to this Agreement is
provided in confidence for the exclusive use of the recipient Party.
Each Party is responsible for protecting the confidentiality of this
information and may not provide, disclose or resell this information to
any third party, including, but without restricting the generality of
the foregoing, any agents, affiliates or co-venturers other than as
specified in this Agreement.
19.3 Notwithstanding any provision to the contrary in this Agreement, either
Party may provide to its agent, authorized representative, subcontractor
or assignee any information required for the performance of the
requirements in this Agreement. Provided, however, that the agent,
authorized representative, subcontractor or assignee has first entered
into an agreement wherein the agent, authorized representative,
subcontractor or assignee agrees to be bound by the confidentiality
obligations in this Agreement.
19.4 Without limiting the generality of the foregoing, neither Party may use
any information provided pursuant to this Agreement for telemarketing
purposes. For the purposes of this Agreement, telemarketing shall
include, but not be restricted to, the promotion by either Party or by
any person or entity, of either Party or its services or products, or of
a third party or its services or products, by any means.
Article 20 Assignment
20.1 Either Party is entitled to assign or transfer any of the rights,
responsibilities or privileges in this Agreement, in whole or in part,
without the prior approval of the other Party provided that written
notice is given to the other Party.
20.2 This Agreement will be binding upon the respective successors and
permitted assigns of the Parties.
Page 14 of 19
Article 21 Governing Law
The terms of this Agreement will be governed by the laws of the Province of
Ontario and the applicable laws of Canada. In the absence of a specification,
the laws of the province where the Xxxxxx has its registered office will apply.
Article 22 Regulatory Approval
22.1 This Agreement, including the rates, terms and conditions specified
herein, and in the Tariffs, are subject to all applicable regulatory
approvals. Such rates, terms and conditions may be amended from time to
time in accordance with and subject to the approval of the CRTC or any
other applicable Regulator.
22.2 If the CRTC exercises its forbearance powers under the
Telecommunications Act such that the Billing and Collection Services
tariff no longer applies with respect to the provision of Billing and
Collection Services by the Xxxxxx to the SP, all documents incorporated
into this Agreement by reference (including any Tariffs) shall be deemed
to be an integral part of this Agreement in the form in which they exist
immediately prior to such forbearance taking effect, and this Agreement
shall continue in full force and effect notwithstanding such
forbearance.
Article 23 Interpretation
23.1 The headings appearing in this Agreement have been inserted as a matter
of convenience and for reference only and, in no way, define, limit or
enlarge the scope or meaning of this Agreement or of any provisions
hereof.
23.2 Whenever a word importing the singular number only is used in this
Agreement, such word will include the plural and words importing either
gender or firms or corporations will include the persons or other
genders and firms or corporations where applicable. Any reference to the
term of this Agreement will, unless the context otherwise requires, be
deemed to include any renewals hereof.
Article 24 Severability
If any clause or clauses or part or parts of clauses in this Agreement be
illegal or unenforceable, it or they will be considered separate and severable
from this Agreement and the remaining provisions of this Agreement will remain
in full force and effect and will be binding upon the Parties as though the said
clauses or part or parts of clauses had never been included, provided, however,
that in the event that the removal of such clause or clauses renders this
Agreement ineffective in the assessment of the Xxxxxx, the Xxxxxx shall have the
right to terminate this Agreement as specified in Article 12.
Page 15 of 19
Article 25 No Partnership or Joint Venture
This Agreement does not constitute a partnership or joint venture between the
Xxxxxx and SP, nor does it constitute either Party as an agent of the other
Party.
Article 26 Notices
26.1 Any notice or other communication hereunder will be in written form and
will be sufficient if delivered personally, by facsimile or by pre-paid
registered mail to the address of the SP as follows:
Xxxxxxx Xxxxxxx, President
Yak Communications (Canada) Inc
00 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx MlP 4X4
Fax (000) 000-0000
and to the Xxxxxx at the following address:
Xxxx Canada -- Carrier Services
Suite 1200 -- 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxx, Senior Vice President -- Carrier Services
Fax (000) 000-0000
26.2 The date of receipt of such communications will be the first business
day following the date sent if delivered personally or by facsimile, or,
if sent by pre-paid registered mail will be deemed to be the fifth
business day after the same will have been mailed, except in the event
of a mail strike this latter presumption will not apply.
26.3 Either Party may change its address for notice without obtaining consent
from the other Party, provided, however, that it notifies the other
Party in writing of its new address.
Article 27 Force Majeure
Neither Party will be held liable for any delay or failure in performance of any
part of this Agreement in the event of force majeure or for any cause beyond the
reasonable control of the Party concerned. In particular, and without limiting
the above, the Parties will be excused from the performance of their obligations
under this Agreement where failure to comply with any of the terms or conditions
of this Agreement will be caused by an act of God, strike, walk out, public
enemy, war, civil commotion, riot, judicial or government order, other
requirement of law, events related to the failure of Customers or other entities
not under the control of either Party to resolve date-related computer problems,
or any other cause of whatsoever nature or kind beyond the reasonable control of
either Party.
Page 16 of 19
Article 28 Language
This Agreement has been prepared and drawn up in the English language at the
express wish of the Parties. Le present contrat a ete prepare et redige en
anglais a la demande expresse des parties.
Page 17 of 19
IN WITNESS WHEREOF the Parties have executed this Agreement.
This 1st day of (month) November (year) 2001, in the city of Scarborough
--- -------- ---- -----------
Province of Ontario by the SP Yak Communications (Canada) Inc.
------- --------------------------------
(PLEASE INSERT NAME)
(Per /s/ Xxxxxxx Xxxxxxx Signature
-----------------------
)
( Xxxxxxx Xxxxxxx Name
)---------------------------
( President Title
---------------------------
)
( (PLEASE PRINT OR TYPE NAME
) AND TITLE OF PERSON WHO
( ACTUALLY SIGNS)
AND
This 12 day of (month) November (year) 2001, in the city of Toronto Province of
-- -------- ---- -------
Ontario by the Xxxxxx
-------
--------------------------
(PLEASE INSERT NAME)
(Per /s/ Xxxxx Xxxxx, Senior Signature
---------------------------------
)
( Xxxxx Xxxxx, Senior Name
)-------------------------------------
( Vice President - Carrier Services Title
-------------------------------------
)
( (PLEASE PRINT OR TYPE NAME
) AND TITLE OF PERSON WHO
( ACTUALLY SIGNS)
Page 18 of 19
Billing and Collection Services Agreement, Schedule I
Eligible Services
The Eligible Services for which Billing and Collection Services are provided
include the following:
Xxxx to Third Number
Collect
Caller Pays
Directory Assistance
Casual Calling
Sent Paid
Coin Telephone
Conference Calls
Messaging
Page 19 of 19
CRTC 7516
ORIGINAL PAGE 17F
Part/Partie 2
ACCESS SERVICES TARIFF FOR / TARIF DE SERVICES D'ACCES VISANT
INTERCONNECTION WITH INTEREXCHANGE / L'INTERCONNEXION AVEC LES FOURNISSEURS
CARRIERS (IXC'S) / DE SERVICES INTERCIRCONSCRIPTIONS (FSI)
--------------------------------------------------------------------------------
N
ACCESS ARRANGEMENTS | INSTALLATIONS D'ACCES
|
Item |Article
|
42. Billing and Collection Service |42. Service de facturation et de perception
|
1. Description of Service | 1. Description du service
|
(a) The Company will provide | (a) La compagnie fournira un service
Billing and Collection Service | de facturation et de preception pour
for eligible message toll | les appels SICT admissibles, tels
service calls, as defined | que xxxxxxx dans le contrat de
in the Company's Billing and | services de facturation et de percep-
Collection Services Agreement, | tion de la compagnie, qui sont
which are completed over the | achemines par l'entremise du reseau
IXC's network, at the rates | du FSI, aux tarifs indiques en 3.
specified in 3. below. | cidessous. Les service de facturation
Billing and Collection | et de perception comprend ce qui
Service includes: | suit:
|
(1) Preparation and rendering | (1) Etablissement et remise de
of bills for charges purchased | factures pour les frais achetes du
by the Company, from the IXC, | FSI par la compagnie correspondant
which are associated with | aux appels admissibles fairs par
eligible calls by customers | les abonnes du FSI qui ont egalement
of the IXC who also maintain | un compte aupres de la compagnie.
accounts with the Company. |
|
(2) Collection of payments for | (2) Perception des paiements pour
charges associated with eligible| les frais correspondant aux appels
calls made by customers of the | admissibles faits par les abonnes du
IXC, including appropriate | FSI, y compris les taxes, lesquelles
taxes which will be remitted | dovient etre remises par la FSI aux
by the IXC to the appropriate | administrations appropriees.
governments. |
|
(3) Answering of customer | (3) Response aux questions des abonnes
questions regarding charges | protant sur les frais factures par la
billed by the Company for | compagnie pour les appels admissibles
eligible calls provided by the | fournis par la FSI, sauf les questions
IXC, excluding questions about | visant a obtenir des precisions sur
the details of the IXC's | les services, les tarifs, les struc-
services, rates, rate struc- | tures tarifaires du FSI et d'autres
tures and similar matters. | sujets semblables.
|
(4) Application of credits and | (4) Application des credits et des des
and adjustments to customer | rajustements au compte des abonnes,
accounts, in accordance with | conformement aux procedures de
billing and collection serv- | facturation et de preception qui sont
ices procedures which are pro- | fournies au FSI de temps a autre par la
vided to the IXC from time to | compagnie.
time by the Company. |
|
2. Terms and Conditions | 2. Modalites
|
(a) The IXC must execute a | (a) Le FSI doit conclure avec la
Billing and Collection Services | compagnie un contrat de services de
Agreement, which details the | facturation et de perception qui
terms and conditions of the | precise les modalites regissant
service, with the Company. N le service.
See page 3 for explanation of symbols/Voir liste des symboles page 3.
--------------------------------------------------------------------------------
Issued/Publication 1997 05 09 Effective date/Entree en vigueur 1997 07 01
Authority: Telecom. Decision Cf. Decision Telecom. CRTC 00-0 Xx 00
XXXX 00-0 Xxxxx 00, 0000. avril 1997.
CRTC 7516
ORIGINAL PAGE 17G
Part/Partie 2
ACCESS SERVICES TARIFF FOR | TARIF DE SERVICES D'ACCES VISANT
INTERCONNECTION WITH INTEREXCHANGE | L'INTERCONNEXION AVEC LES FOURNISSEURS
CARRIERS (IXC'S) | DE SERVICES INTERCIRCONSCRIPTIONS (FSI)
------------------------------------------------------------------------------
N
ACCESS ARRANGEMENTS | INSTALLATIONS D'ACCESSS
|
Item | Article
|
42. Billing and Collection Service |42. Service de facturation et de perception
|
3. Rates | 3. Tarifs
|
(a) An Accounts Receivable | (a) Une reduction au titre de la
Management discount will apply | gestion des comptes d'abonnes sera
to each account receivable | appliquee a chaque compte d'abonne
purchased from the IXC. | achete d'un FSL
N
-------------------------------------------------------------------------------
(b) Charge/Frais
-------------------------------------------------------------------------------
Accounts Receivable Manangement Reduction au titre de la gestion des
discount, as a percentage comptes d'abonnes, en pourcentage de la
of the value of the accounts valeur des comptes d'abonnes
receivable purchased..... achetes.................... 2.51%
-------------------------------------------------------------------------------
(c) Processing charges per N (c) Des frais de traitement par
account receivable purchased from| compte d'abonne achete d'un FSI
the IXC will apply each time an | seront exigibles chaque fois qu'un
account receivable is: | compte d'abonne est:
|
i) returned prior to billing | i) retourne avant la facturation
ii) billed to a customer, or | ii) facture a un abonne, ou
iii) returned or charged back to | iii) retourne ou retrofacture au FSI
the IXC after billing. | apres la facturation.
N
-------------------------------------------------------------------------------
(d) Charge/Frais
-------------------------------------------------------------------------------
Processing charge per account Frais de traitement par compte
receivable returned prior to billing. d'abonne retourne avant
la facturation............. $0.0349
Processing charge per account receivable Frais de traitement par
billed. compte d'abonne facture.... 0.1163
Processing charge per account receivable Frais de traitement par
returned or charged back after billing compte d'abonne retourne
ou retrofacture apres la
facturation................ 5.44
--------------------------------------------------------------------------------
See page 3 for explanantion of symbols/Voir liste des symboles page 3.
--------------------------------------------------------------------------------
Issued/Publication 1997 05 09 Effective date/Entree en vigueur 1997 07 01
Authority: Telecom. Decision Cf. Decision Telecom. CRTC 00-0 xx 00
XXXX 00-0 Xxxxx 00, 0000. avril 1997.
