Exhibit 10.3
Final
BILLING AND COLLECTION SERVICES
OPERATING AGREEMENT
This Billing and Collection Services Operating Agreement ("Agreement"),
dated as of February 4, 2002 is between Cincinnati ▇▇▇▇ Telephone Company
("CBT") and CBD Media, Inc. ("Purchaser"), a Delaware corporation.
WHEREAS, Broadwing Inc. ("Parent"), parent of CBT, Cincinnati ▇▇▇▇
Directory Inc., a wholly owned subsidiary of Parent, and Purchaser have entered
into the Asset Purchase Agreement, dated as of the date hereof (the "Asset
Purchase Agreement"), pursuant to which Purchaser has agreed to purchase the
assets used by Parent and CBT to operate the Business (as defined in the Asset
Purchase Agreement), subject to the terms and conditions contained in the Asset
Purchase Agreement; and
WHEREAS, CBT is willing to provide to Purchaser, under the "Cincinnati
▇▇▇▇" brand, certain services in connection with the printed and electronic
directories published by Purchaser, and any other mutually agreeable products or
services sold by Purchaser; and
WHEREAS, Purchaser desires to purchase such services.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, CBT and Purchaser hereby covenant and mutually agree as follows:
Section 1. Term and Termination.
1.1 This Agreement will be effective on the Closing Date (as defined in the
Asset Purchase Agreement) and, unless terminated earlier as provided
herein, will remain in effect for an initial term of ten (10) years.
Thereafter, this Agreement will renew automatically for an additional ten
(10) year period on the same terms and conditions in effect on the last day
of the then-current term, unless Purchaser gives written notice of
termination to CBT at least 60 days prior to the end of the initial term.
1.2 Notwithstanding the foregoing, either party may terminate this Agreement if
the other party is in material breach of this Agreement and such breach
remains uncured for 60 days after written notice of such breach has been
given to the breaching party.
1.3 Notwithstanding anything in this Agreement to the contrary, this Agreement
shall automatically terminate, and the obligations of the parties shall
immediately cease, upon the termination of the Asset Purchase Agreement in
accordance with Section 7.01 thereof.
Section 2. Services Provided and Representations Made By CBT.
2.1 The services to be provided by CBT and received by Purchaser pursuant to
this Agreement are related to the billing of, and collection of fees from,
Purchaser's customers in the conduct of the Business ("Customer(s)"), as
more fully set forth in Appendix A, to which additions may be made by
mutual agreement of the parties from time to time as new billing and
collection related services are developed or selected by Purchaser
(collectively, the "Services"). During the term of this Agreement
(including the renewal term), CBT agrees that it shall not provide services
similar to
1
the Services to any competitor of Purchaser.
2.2 In addition to the foregoing, CBT shall furnish to Purchaser, in a format
mutually agreeable to the parties, billing name and address information for
CBT's directory customers.
2.3 All Services shall be provided by CBT in accordance with the Service Level
requirements ("SLA") set forth on Appendix B attached hereto and made a
part hereof. In the event CBT fails to meet any SLA, Purchaser shall be
entitled to a credit in the amount set forth on Appendix B.
2.4 In the performance of all collection Services, CBT acknowledges and agrees
that it acting in a fiduciary capacity for Purchaser, and CBT shall have no
right or authority to compromise, settle or in any other way limit
Purchaser's claim or causes of action with respect to any Customer provided
Purchaser is current with all charges from CBT.
2.5 All amounts collected hereunder for Purchaser (including all late fees
associated with a Customer) shall be handled in accordance with the
Settlement Procedures set forth in Appendix E, and shall be transferred via
ACH transaction on a daily basis one day in arrears to a bank account
designated by Purchaser (the "Account"). CBT shall have no authority to pay
or release any funds to any person or entity other than Purchaser.
2.6 CBT shall not, and shall not allow any person or entity to, create any
lien, encumbrance, or security interest in or on the Account.
2.7 CBT will provide Purchaser with regular monthly reports, to be delivered no
later than the tenth (10/th/) business day after the end of the month, in a
format reasonably requested by Purchaser, containing all information
Purchaser may reasonably require in order to track the performance of the
Services, including but not limited to SLA statistics and collections.
2.8 CBT warrants that it shall perform the Services in compliance with all
applicable local, state and federal laws, rules and regulations, including
without limitation, policies and laws related to spamming, privacy, and
consumer protection.
2.9 CBT represents that it has the requisite corporate authority to enter into
this Agreement and to perform it obligations hereunder, and that there are
no outstanding rights, agreements, grants, encumbrances, obligations or
restrictions that would prevent CBT from performing its obligations under
the terms of this Agreement.
2.10 CBT represents that the Services, and any materials used by CBT in
fulfilling its obligations under this Agreement,: (i) do not now and will
not infringe upon or violate any copyright, patent, trade secret, contract
right or other third party right, (ii) do not now and will not violate any
federal, state, or local law or regulation.
2.11 CBT warrants that it will perform the Services in a professional,
competent, and timely manner by appropriately qualified personnel in
sufficient quantity and in accordance with generally accepted industry
standards.
2
2.12 CBT warrants that it shall not, directly or indirectly, by or for itself,
as the agent of another, or through others as an agent in any way solicit
or induce, or attempt to solicit or induce, any employee of Purchaser to
leave Purchaser's employ or otherwise interfere with such employment
relationship during the term of this Agreement and for a period of one (1)
year following the termination or expiration of this Agreement.
Section 3. Customer Information
3.1 For purposes hereof, "Purchaser Customer Information" means all personally
identifiable information of a Customer, including, but not limited to,
name, address, telephone number, e-mail address, credit card information,
gender, products or services requested or listed, and transaction history,
together with all aggregated or generated data, compilations, summaries,
and other similar collections of such information for the purpose of
Directory Services.
3.2 The parties agree that Purchaser exclusively and solely owns all Purchaser
Customer Information, and all intellectual property rights relating thereto
shall be solely and exclusively held by Purchaser or any nominee thereof.
At the request of Purchaser, CBT shall deliver to Purchaser, in mutually
agreeable electronic and/or hard copy format, all Purchaser Confidential
Information.
3.3 CBT shall treat all Purchaser Customer Information in strict accordance
with Purchaser's privacy policies as provided or made accessible to CBT,
including any amendments thereto. Without limiting any other warranty or
obligation of CBT under this Agreement, during the term and thereafter in
perpetuity, CBT shall not gather, store, use, disclose, distribute, sell,
share, lease, , rent or otherwise transfer any Purchaser Customer
Information in any manner, except as expressly provided in this Agreement
or as CBT may be expressly directed in advance in writing by Purchaser.
3.4 All Purchaser Customer Information and other data associated with the
invoicing of Purchaser's billing records shall be maintained by CBT for the
period described in clauses a, b or c below, whichever is greater.
a. The retention time required by law for maintaining federal, state and
local tax information.
b. The retention time required by law or regulation in order to
substantiate or reconstruct an end user invoice.
c. The retention time currently used by CBT, for its own billing
information, in compliance with legal or regulatory rulings.
Section 4. Charges and Payments.
4.1 In full consideration of the Services, Purchaser shall pay CBT the amounts
set forth on Appendix C, attached hereto. After December 31, 2002, such
fees may be increased by CBT not more than once annually, and in no event
may CBT increase its charges in any year more than the CPI for the year
immediately preceding such year. As used herein, "CPI" will mean the
Consumer Price Index for Cincinnati, Ohio (CPI-U), U.S. City Average, All
Items (1984 = 100) for January of each year.
4.2 Upon request from Purchaser, CBT shall, at no additional charge, work with
Purchaser in projecting all relevant charges related to this Agreement. The
purpose of these projected charges
3
is to enable Purchaser and CBT to estimate the total charges to be incurred
under this Agreement, including programming charges, uncollectibles, taxes,
and transmission costs. Projected charges shall be based on Purchaser's
volume estimates and the parties' respective good faith estimates, and
shall not constitute a warranty or representation of actual charges.
4.3 Charges for services rendered hereunder shall be evidenced by monthly
invoices from CBT to Purchaser. Purchaser shall pay all undisputed amounts
to CBT within thirty (30) days of Purchaser's receipt of such invoice.
Purchaser shall only dispute amounts due hereunder in good faith.
4.4 Within ten (10) business days of the end of every calendar month during the
term, CBT will issue a written report to Purchaser, in the form reasonably
requested by Purchaser, verifying all amounts payable to Purchaser by
Customers, all amounts actually received from Customers, and all
adjustments made (both positive and negative) on a Customer account;
provided that CBT acknowledges and agrees that it has no right or authority
to make any adjustments to any Customer account unless authorized in
writing by Purchaser or under Purchaser's written guidelines. After review
of such report, Purchaser shall issue a written settlement letter relating
to the month just ended.
Section 5. Nondisclosure Agreement.
5.1 The terms and conditions of this Agreement and all documentation, technical
information and business information in whatever form received by either
party from the other in connection with this Agreement and which is marked
with a proprietary or confidential legend or transmitted orally and
identified as confidential contemporaneously with its disclosure (except
for Purchaser Customer Information, which shall for all purposes be deemed
to be confidential and proprietary) shall be deemed the proprietary and
confidential information (collectively, "Confidential Information") of the
disclosing party and shall be used by the other party only in accordance
with and for the performance of this Agreement.
5.2 With respect to all Confidential Information, the receiving party shall:
a. Receive and hold the Confidential Information in confidence;
b. Restrict disclosure of Confidential Information solely to those
employees with a need to know such information in connection with the
performance of this Agreement and not make any further use or
disclosure of such information without the prior written permission of
the disclosing party;
c. Advise those employees given access to the Confidential Information of
their obligations with respect to such information, and cause such
employees to hold such information in confidence; and
d. Not copy or reproduce any of the Confidential Information except to the
extent necessary to perform under this Agreement.
5.3. The receiving party shall have no obligation to preserve the proprietary
nature of any information which was previously or becomes known to it free
from any obligation to keep such information confidential; is independently
developed by it without reference to the other party's confidential
4
information; or is disclosed to third parties by the disclosing party
without restriction.
5.4. All Confidential Information disclosed by either party to the other,
whether in tangible or intangible form, shall, upon the request of the
disclosing party, be returned or destroyed.
5.5. Except as specifically provided herein, nothing contained in this Agreement
shall be construed as granting or confirming any rights by license or
otherwise in any Confidential Information disclosed pursuant to this
Agreement.
Section 6. Audit.
6.1 CBT will, in accordance with generally accepted accounting principles and
with this Agreement, prepare and maintain complete and accurate books of
account and records (including the originals or copies of documents
supporting entries in the books of account) covering all transactions
relating to this Agreement. Purchaser or it's representatives may, not more
than once per calendar year, during regular business hours with five (5)
days prior notice, during the term hereof and for two (2) years thereafter,
audit all books of account and records and examine and copy all documents
and materials relating to this Agreement.
6.2 If any audit discloses that any CBT has either overcharged Purchaser for
Services or underpaid Purchaser the fees collected from Customers, all such
amounts shall be immediately paid to Purchaser, together with interest at a
rate equal to one and a half percent (1 1/2% ) per month, or the maximum
rate allowed by applicable law. If the discrepancy is ten percent (10%) or
more, CBT will immediately reimburse Purchaser for the cost and expenses of
the audit.
Section 7. Taxes - Calculation of Billing
7.1 Purchaser shall be responsible for determining and advising CBT of taxes to
be calculated, billed, and collected by CBT in connection with Purchaser's
products and services. Notwithstanding the foregoing, upon Purchaser's
request, CBT will calculate the amount of taxes to be billed on behalf of
Purchaser, including without limitation, sales taxes, local school taxes
and excise taxes.
7.2 CBT shall not be entitled to retain or receive from Purchaser any statutory
fee or taxes, but shall remit any and all such fees and taxes promptly to
the taxing authority in accordance with applicable law.
7.3 Unless CBT is calculating tax treatment on Purchaser's behalf under Section
7.1, Purchaser shall give CBT reasonable notice of tax billing changes, and
CBT shall implement such changes as promptly as possible. Unless CBT is
calculating tax treatment on Purchaser's behalf under Section 7.1,
Purchaser shall hold CBT harmless from any liability arising out of CBT's
implementation of tax billing changes requested by Purchaser.
Section 8. Indemnification
8.1 CBT agrees to indemnify and hold harmless Purchaser and its officers,
agents, directors and employees (each a "Purchaser Indemnified Party"),
against any and all claims, actions, proceedings, penalties, expenses,
damages, liabilities and losses (including any governmental investigations,
complaints and actions) and reasonable attorneys' fees with respect thereto
(collectively "Losses"), arising out of or in connection with any claim
relating to the negligence,
5
fraud, or willful misconduct of CBT, its employees, contractors, or agents.
Section 9. Miscellaneous.
9.1 Assignment. Neither party may assign any right, obligation or duty, in
whole or in part, or of any other interest hereunder, without the written
consent of the other party; provided, however, that Purchaser may assign
this Agreement without CBT's consent to: (i) any entity which acquires all
or substantially all of the stock or assets of Purchaser so long as said
acquirer does not directly compete with CBT's business under the
"Cincinnati ▇▇▇▇" brand as a local exchange carrier of telecommunications,
a long distance provider, or wireless provider, or (ii) to Purchaser's
lender or financing partners in the Asset Purchase Agreement. All
obligations and duties of any party under this Agreement shall be binding
on all successors in interest and assigns of such party.
9.2 Severability. In the event that any one or more of the provisions contained
herein shall for any reason be held to be unenforceable or illegal in any
respect under the laws or regulations of any jurisdiction governing this
Agreement, such unenforceability or illegality shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if
such unenforceable or illegal provision or provisions had never been
contained herein.
9.3 Independent Contractors. Each party shall perform its obligations hereunder
as an independent contractor and not as the agent, employee or servant of
the other party. Neither party, nor any person furnished by such party,
shall be deemed employees, agents or servants of the other party or
entitled to any benefits available under the plans for such other party's
employees. Each party has and hereby retains the right to exercise full
control of and supervision over its own performance of the obligations
under this Agreement and retains full control over the employment,
direction, compensation and discharge of all employees assisting in the
performance of such obligations; each party shall be solely responsible for
all matters relating to payment of such employees, including compliance
with social security taxes, withholding taxes and all other regulations
governing such matters, and each party shall be responsible for its own
acts and those of its own subordinates, employees, agents and
subcontractors during the performance of that party's obligations
hereunder.
9.4 Amendments, Waivers. This Agreement may be amended only by written
agreement signed by authorized representatives of both parties. No waiver
of any provision of this Agreement and no consent to any default under this
Agreement shall be effective unless the same shall be in writing and signed
by or on behalf of the party against whom such waiver or consent is
claimed, and no waiver of any provision on one occasion shall constitute a
waiver on any subsequent occasion. No course of dealing or failure of any
party to strictly enforce any term, right or condition of this Agreement
shall be construed as a waiver of such term, right or condition.
9.5 Entire Agreement. This Agreement, including the Appendices hereto, and the
Asset Purchase Agreement, constitute the entire agreement between the
parties and supersede all prior oral or written agreements,
representations, statements, negotiations, understandings, proposals and
undertakings with respect to the subject matter hereof.
9.6 Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will
be conclusively deemed to have been received by a party hereto and to be
effective if delivered personally to such party, or sent by telecopy or
other electronic means (followed by written confirmation), or by overnight
courier service, or by certified or registered mail, return receipt
requested, postage prepaid, addressed to such party at the address
6
set forth below or to such other address as either party may give to the
other in writing for such purpose. All notices will be effective upon
receipt.
To CBT: Cincinnati ▇▇▇▇ Telephone Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Vice President - Operator & Directory Services
To Purchaser: CBD Media, Inc.
_____________________
_____________________
Attn: _______________
With a Copy to: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
9.7 No Third-Party Beneficiaries. This Agreement shall not provide any person
not a party to this Agreement with any remedy, claim, liability,
reimbursement, cause of action or other right in excess of those existing
without reference to this Agreement.
9.8 Governing Law. This Agreement shall be deemed to be a contract made under
the laws of the State of Ohio, and the construction, interpretation and
performance of this Agreement and all transactions hereunder shall be
governed by the substantive law of such State.
9.9 Headings. The headings and numbering of sections and paragraphs in this
Agreement are for convenience only and shall not be construed to define or
limit any of the terms herein or affect the meaning or interpretation of
this Agreement.
9.10 Force Majeure. Neither party shall be held liable for any delay or failure
in performance of any part of this Agreement from acts of God, acts of
civil or military authority, government regulations, embargoes, epidemics,
war, terrorist acts, riots, insurrections, fires, explosions, earthquakes,
nuclear accidents, flood, or power blackouts.
7
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by
a duly authorized officer as of the first date written above.
CINCINNATI ▇▇▇▇ TELEPHONE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
CBD Media, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
8
Exhibit 10.3
APPENDIX A
BILLING AND COLLECTION SERVICES
A. ▇▇▇▇ RENDERING AND CUSTOMER SUPPORT
1. CBT shall provide ▇▇▇▇ Rendering to those directory customers designated by
Purchaser. The rates for ▇▇▇▇ Rendering vary depending whether the
directory customer is an "established CBT account" or a "miscellaneous"
account at the time bills are rendered. A "miscellaneous account" is any
account created out of CBT's service order process rendered for the purpose
of billing directory advertising charges, whether or not such customer is
an established CBT account. An "established CBT account" is any CBT
customer that is billed monthly for local telephone service provided by
CBT. ▇▇▇▇ Rendering includes the preparation and mailing of a statement of
the amounts due from the directory customer for Purchaser's products or
services. CBT also shall provide payment and remittance processing for all
directory customers for which CBT provides ▇▇▇▇ Rendering service. Payment
and remittance processing is the process by which payments are received and
applied to Purchaser's end user ▇▇▇▇ for services rendered.
2. Purchaser's total charges shall be presented and included in the invoice
total page along with all other charges being billed by CBT. Adjustments to
previous bills and explanations regarding specific charges may be presented
on the invoice total page or in the "Other Credits and Charges" portion of
the invoice.
3. CBT shall establish the customer accounts for all Purchaser billing records
billable to such Purchaser accounts. CBT will ▇▇▇▇ Purchaser's customers on
a monthly basis, once in connection with each issue of Purchaser's
directory, or other method as Purchaser directs. If Purchaser requests CBT
to ▇▇▇▇ customers on a basis other than monthly or once in connection with
each issue of Purchaser's directory, additional charges may apply.
4. Rated billing records are required to provide ▇▇▇▇ Rendering. Such billing
records must be in CBT's standard format and delivered to the location
specified by CBT. Purchaser-provided rated billing records must identify
the customer account to be billed.
5. Rated billing records which CBT cannot ▇▇▇▇ for any reason shall be
reviewed by CBT's accounts analysis group. Upon completion of the review,
the billable billing records shall be posted and processed. Unbillable
billing records shall be handled in accordance with mutually-determined
procedures.
6. Purchaser billing record detail determined to be lost, damaged or destroyed
as a result of ▇▇▇▇ Rendering shall be recovered, if possible, by CBT. If
the lost Purchaser detail cannot be recovered and CBT recorded the details,
CBT shall estimate the billing records and associated revenues and ▇▇▇▇ the
customer accordingly, subject to Purchaser's prior review and approval of
the amount billed. If Purchaser detail cannot be recovered and Purchaser
provided the detail, Purchaser shall be requested to re-supply the detail
and CBT shall pay Purchaser for its time and materials to re-create such
detail. If Purchaser cannot re-supply the detail, the extent of CBT's
liability shall be determined based on the actual damages suffered by
Purchaser. If Purchaser requests data that have previously been
successfully provided by CBT, the data shall be re-provided to Purchaser at
a reasonable charge, if available. If Purchaser supplies inaccurate data,
then, at Purchaser's request, CBT will make
1
reasonable attempts to resolve the discrepancy. CBT will ▇▇▇▇ Purchaser for
any additional costs reasonably incurred to resolve the discrepancy.
7. When CBT is notified that, due to its error or omission, incomplete
Purchaser detail has been provided on Purchaser's purchase of accounts
receivable statement, CBT shall make reasonable efforts to recover and
provide Purchaser detail to Purchaser at no additional charge. Such request
to recover Purchaser detail must be made within 30 days from the date
Purchaser detail was initially made available by CBT. If the detail cannot
be recovered, the extent of CBT's liability for damages shall be limited as
set forth in the preceding paragraph.
8. If CBT finds, or is notified of, an error in billing to a directory
customer, it shall use reasonable efforts to correct the error and ▇▇▇▇ the
appropriate customer within the limits permitted by the laws of the state
in which it provides the service. If CBT caused the error and CBT cannot
▇▇▇▇ the proper directory customer in a timely manner, the extent of CBT's
liability for damages shall be the known amount misbilled or when the
amount misbilled is unknown, the extent of CBT's liability shall be
determined based on the actual direct damages suffered by Purchaser.
9. CBT will provide a customer service telephone number for use by Purchaser
and Customers during CBT's normal customer service business hours The
number will be staffed with personnel trained to answer fee payment,
invoice and status questions.
10. CBT will promptly and professionally respond to all inquiries from
Purchaser and Customers regarding fees, invoice and status questions. CBT
will promptly refer inquiries not related to its duties under this
Agreement to Purchaser.
11. CBT shall, at Purchaser's request and at a charge not to exceed the charge
as currently applied for such services on the date of this Agreement,
include with ▇▇▇▇▇▇▇▇ rendered approximately two (2) months prior to
directory distributions, inquiry cards supplied by Purchaser soliciting
assistance in directory delivery.
B. ADDITIONAL RECORD PROCESSING
If Purchaser desires CBT to process additional lines of billing (e.g.,
detail of published books, Internet advertising detail, etc.), Purchaser must
order Additional Record Processing from CBT. Additional Record Processing for
record billed services includes billing detail beyond the presentation of
Purchaser's total charges on the invoice total page and the presentation of
adjustments and explanations in the "Other Credits and Charges" portion of the
invoice. CBT shall have sole authority to determine the total number of pages
included in CBT's bills and reserves the right to limit its Additional Record
Processing services accordingly.
C. PURCHASER MESSAGING.
If Purchaser has ordered Additional Record Processing and has paid the
applicable fees set forth in Appendix D to have a separate page in CBT's ▇▇▇▇
devoted exclusively to Purchaser, CBT shall print messages for Purchaser on such
separate page, as requested by Purchaser with reasonable notice to CBT. All such
messages will be reasonably acceptable to CBT. Details of prices and specific
requirements are set forth in Appendix D.
2
D. TREATMENT AND COLLECTIONS
1. CBT shall provide Treatment and Collections service in an attempt to
control or collect outstanding balances due for previously billed charges.
Treatment and Collections encompasses gathering and tracking account
information, contacting delinquent customers by telephone, and mailing
account status notices at established intervals. CBT will perform Treatment
and Collections for regular established accounts, miscellaneous accounts,
and national accounts.
2. As part of Treatment and Collections, CBT will track those CBT customers
that have their telephone service disconnected while an outstanding balance
is due to Purchaser. If such a customer re-establishes telephone service
with CBT, then CBT will transfer the outstanding balance to the customer's
account.
3. If treatment and collection efforts prove unsuccessful in collecting the
past due account, Purchaser will notify CBT to manually write off the
amount due.
E. MANUAL PROCESSING OF SALES AGENT CREDIT ADJUSTMENT
If credit or debit adjustments to the billing tape of rated billing records
furnished to CBT in connection with billing for a directory are necessary, CBT
will manually process such credit or debit adjustments to the invoice. Such
credit or debit adjustments may be initiated only by Purchaser or its sales
agent. Purchaser will furnish all such adjustments to CBT within the time frames
reasonably established by CBT and in the format reasonably specified by CBT.
F. MANUAL ACCOUNT CHANGES
If changes to the billing tape of rated billing records furnished to CBT in
connection with billing for a directory are necessary, other than credit or
debit adjustments initiated by Purchaser or its sales agent, CBT will manually
enter such changes to the invoice. Purchaser will furnish all such changes to
CBT within the time frames reasonably established by CBT and in the format
reasonably specified by CBT.
G. INCLUSION OF LOGO
If Purchaser has paid the applicable fees to have a separate page in CBT's
▇▇▇▇ devoted exclusively to Purchaser, CBT will print Purchaser's (or its sales
agent's) logo on such separate page. Any such logo will be reasonably acceptable
to CBT as to size and design. To utilize this service, Purchaser must provide
CBT with a sample of the logo in the proper design and with the correct layout,
size and color that CBT can print without modification (i.e., a "camera ready"
sample of the logo).
H. SERVICE CHANGES OR DEVELOPMENT
1. In order for CBT to provide the ▇▇▇▇ processing and related billing and
collection services as provided under this Agreement, CBT must first
perform certain nonrecurring start-up activities. In addition, Purchaser
may desire to implement new administrative and operating procedures or
changes, including software development. Service Changes or Development
service includes charges for activities associated with such start-up
costs, change requests and programming needs.
2. All requests for Service Changes or Development service must describe the
changes or development and/or the specific business problem to be solved in
reasonable detail. For each requested service
3
change or development, CBT shall provide a time and materials ("T&M")
estimate within 30 business days after CBT has received all information
reasonably necessary to calculate such estimate, which estimate will
include a fixed price for the project and a firm implementation date.
Purchaser shall notify CBT within 10 business days of receipt of the T&M
estimate whether the estimate is accepted or rejected. Failure to so notify
CBT shall constitute a rejection of the T&M estimate which shall thereafter
be void. Charges for projects authorized by Purchaser are billable upon
completion and will be separately identified in Purchaser's billing and
collection ▇▇▇▇. Any changes to the original T&M request made by Purchaser
may necessitate revisions to the T&M estimate. Response time for such
revisions will be within 30 business days after receipt of Purchaser's
changed request.
3. For cancelled projects which have been previously accepted under the
guidelines set forth above, Purchaser shall compensate CBT for its
reasonable expenses incurred up to the point of cancellation or 50% of the
T&C whichever is greater. Cancellation of previously accepted projects must
be received in writing by CBT.
4. If, in CBT's reasonable business judgment after prior consultation with
Purchaser, any service change or development would affect the prices for
any other services described in this Appendix A, CBT may adjust the price
for such other service(s) accordingly.
4
Exhibit 10.3
APPENDIX B
SERVICE LEVEL AGREEMENTS AND CREDITS
Service Level Agreement
Cincinnati ▇▇▇▇ Telephone and Purchaser hereby agree as follows:
1. Purpose
-------
The purpose of this SLA is to establish(1) objective criteria for
required levels of service to be provided by CBT to Purchaser under
the Billing and Collections Agreement (the "Agreement") to which
this SLA is attached as Appendix B, and (2) acknowledged and agreed
levels of credits back to Purchaser in the event CBT fails to
achieve any of the required levels set forth herein.
2. Certain CBT Tasks and Requirements
----------------------------------
. Task: Reports
Performance Standard: CBT shall timely generate and deliver to
Purchaser all reports required under the Agreement and all report
required under the Directory Advertising Position Practices
handbook (revised version July 1996) (as reasonably amended from
time to time by Purchaser) or as exist as of the beginning of the
Agreement.
Measurement: The difference between the date a report is due and
the date the report is delivered.
Remedy: CBT shall provide any missing report immediately.
Credit: For each day after the third (3) business day a report is
late, Purchaser shall receive a credit of $150/report.
. Task: System data input
Performance Standard: CBT shall fully and accurately input all
billing systems data (formats) and other data delivered by
Purchaser under the Agreement within 2 days during the normal
course of business and within 15 days during the two (2) months
that follow the beginning of each book.
Measurement: The difference between the date the data is delivered
to CBT for input and the date the data is actually fully and
accurately input..
Remedy: CBT will, at its sole cost and expense, provide the
necessary resources required to fully and accurately input all data
immediately.
Penalty: For each day data input is late, Purchaser shall receive a
credit of $18/format.
. Task: Customer Service
Performance Standard: CBT shall provide and adequately staff
throughout the term of the Agreement, at its sole expense, a
toll-free customer service telephone number for use by Purchaser
and Customers during CBT's normal customer service hours (which in
no event shall be less than PUCO requirements. This number will be
staffed with a sufficient number of personnel trained to answer
invoice and status questions. All other inquiries will be directed
immediately and courteously to Purchaser at a number designated by
Purchaser from time to time.
1
Measurement: Number of Customer complaints about CBT's customer
service received and logged by Purchaser. Purchaser shall, at a
minimum, log BTN, name, time and complaint.
Remedy: CBT, shall at its sole expense, promptly perform a root
cause analysis of the failure and provide Purchaser with a written
plan to remedy such failure on a going forward basis.
Penalty: For each Customer complaint in excess of three (3)
distinct complaints (calculated on a calendar monthly basis),
Purchase shall receive a credit of $150/complaint; provided
however, that the penalty under this Task shall not exceed $60,000
in any calendar month.
2. Purchaser Responsibilities
--------------------------
During the term of the Agreement, Purchaser shall on a timely basis
and at no charge to CBT:
. Maintain a designated representative who shall be authorized to
act as the primary point of contact for CBT with respect to each
party's obligations under this Agreement.
. Cooperate with CBT to the extent reasonably necessary in the
performance by CBT of CBT's obligations under the Agreement.
3. Credits - Generally
-------------------
. CBT acknowledges and agrees that any Credit assessed pursuant to
this SLA shall be fully credited against any monies otherwise due
to CBT under the next invoice CBT delivers to Purchaser under the
Agreement, and if any credits remain at the end of the term of the
Agreement, shall be payable to Purchaser by CBT within ten (10)
business days.
. Purchaser acknowledges and agrees that it shall not be entitled to
a Credit under this SLA to the extent the failure giving rise to
such Credit was directly related to Purchaser's failure to meet its
obligations under Section 2 above.
2
APPENDIX C
RATE TABLE
BILLING AND COLLECTION SERVICES
A. ▇▇▇▇ Rendering Charges per account/month
Regular Established Account $ 1.31
Miscellaneous Account $ 2.90
B. Additional Record Processing/▇▇▇▇ Messaging (See Appendix D).
C. Customer Messaging Available only with separate
page billing and priced upon
request.
D. Treatment and Collections
Cutouts & Write-offs $ .08
YPPA Accounts $ 1.23
Regular Established Account $ .14
Miscellaneous Account $ 1.61
Phone Outs $ .12
E. Manual Processing of Sales Agent Credit
Adjustment $ 16.25 per
transaction/month
F. Manual Account Changes $ 17.76 per
transaction/month
G. Inclusion of Logo Available only with
separate page billing
and priced upon request
H. Service Changes or Development Priced upon request
3
APPENDIX D
▇▇▇▇ MESSAGING RATES
Setup Fee Per request $2,500.00
SETUP FEE INCLUDES THE FOLLOWING:
.. Processing of order
.. Keying of message into test and production systems
.. Testing and production of a ▇▇▇▇ ▇▇▇▇▇▇
.. Printing on both Residence and Business (if requested)
.. Printing for all NPA in CBT's operating area
.. Printing for all NXX in CBT's operating area
.. Printing for both casual and pre-subscribed accounts.
Printing Fees
--------------------------------------------------------------------------------
$.023 First 3 lines
--------------------------------------------------------------------------------
$.017 Lines 4-6
--------------------------------------------------------------------------------
$.012 Lines 7-12
--------------------------------------------------------------------------------
i.e., Cost of a 5 line message ($.023 X 3) + (.017 X 2) = $.103 per ▇▇▇▇
Minimum 3 lines per message. Maximum of 12 lines per message
Monthly fee
Month fee per request
per request after initial
CATEGORY OPTIONS First Month month
--------------------------------------------------------------------------------
Live Business Accounts Only $ 405 $ 520
--------------------------------------------------------------------------------
Live Residence Accounts Only $ 405 $ 520
--------------------------------------------------------------------------------
Final Accounts Only $ 520 $ 520
--------------------------------------------------------------------------------
Casual Customer Accounts Only $ 405 $ 520
--------------------------------------------------------------------------------
Pre-Subscribed Customer Accounts Only $ 405 $ 520
--------------------------------------------------------------------------------
Selected NPA $ 405 $ 520
--------------------------------------------------------------------------------
Selected NXX $ 405 $ 520
--------------------------------------------------------------------------------
Selected Billing Periods $ 520 $ 520
--------------------------------------------------------------------------------
Calculation of Messaging Rates
Setup Fee + Printing Fees + Monthly Category Options = 1st months rate
Printing Fees + Monthly Category Options = rate after initial month
1
APPENDIX E
SETTLEMENT PROCEDURES
1. The settlement for collected cash or cash equivalents due from CBT to
Purchaser during the term of the Agreement shall occur on a daily basis on the
day following the day of cash receipt The transfer will be effected using the
ACH clearing process, whereby funds will be available to Purchaser one day after
receipt by CBT.
2. The amount due CBT from Purchaser for services rendered is due thirty (30)
days from the invoice date. If the payment date would cause payment to be on a
Saturday, Sunday or CBT or Purchaser bank holiday, payment for the amount due
CBT shall be as follows:
a. If such payment date falls on a Sunday or on a holiday that is observed
on a Monday, the payment due date shall be the first non-holiday day
following such Sunday or holiday.
b. If such payment date falls on a Saturday or on a holiday that is
observed on Tuesday, Wednesday, Thursday, or Friday, the payment due
date shall be the last non-holiday day preceding such Saturday or
holiday.
3. Any payment received by CBT after the payment date or any payment received
in funds that are not immediately available to CBT on the payment due date shall
be subject to a late payment charge. The late payment charge shall be the
portion of the amount due CBT received after the payment due date times a late
factor. The late factor shall be the lesser of:
a. The highest interest rate (in decimal value) which may be levied by law
for commercial transactions in Ohio, Indiana or Kentucky, as
appropriate, compounded daily for the number of calendar days from the
payment due date to and including the date that payment is actually
made; or
b. 0.000370 per day, compounded daily for the number of calendar days from
the payment due date to and including the date that payment is actually
made,not to exceed two (2) calendar years from the payment date. Any
late payment charge shall be included with the next Customer payment to
CBT.
4. The amount due Purchaser from CBT, for collected cash or cash equivalents
during the term of the Agreement shall occur on a daily basis. If payment date
would cause payment to be on a Saturday, Sunday or Purchaser or CBT bank
holiday, payment for the amount due Purchaser shall be as follows:
a. If such payment date falls on a Sunday or on a holiday that is observed
on a Monday, the payment date shall be the first non-holiday day
following such Sunday or holiday.
b. If such payment date falls on a Saturday or on a holiday that is
observed on Tuesday, Wednesday, Thursday, or Friday, the payment due
date shall be the last non-holiday day preceding such Saturday or
holiday.
5. Any payment received by Purchaser after the payment date or any payment
received in funds that
2
are not immediately available to Purchaser on the payment due date shall be
subject to a late payment charge. The late payment charge shall be the portion
of the amount due Purchaser received after the payment due date times a late
factor. The late factor shall be the lesser of:
a. The highest interest rate (in decimal value) which may be levied by law
for commercial transactions in Ohio, Indiana or Kentucky, as
appropriate, compounded daily for the number of calendar days from the
payment due date to and including the date that payment is actually
made; or
b. 0.000370 per day, compounded daily for the number of calendar days from
the payment due date to and including the date that payment is actually
made,not to exceed two (2) calendar years from the payment date. Any
late payment charge shall be included with the next CBT payment to
Customer.
3
