EXHIBIT 10.4
BILLING AND COLLECTION SERVICES AGREEMENT
This Agreement is made in duplicate this 8th day of August, 2000.
between Yak Communications (Canada) Inc.,
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx X0X 0X0,
hereinafter referred to as "the Service Provider" or "the SP",
and TELUS Communications (B.C.) Inc.,
0000 Xxxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0,
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.
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.
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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 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
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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 collect these
Accounts Receivable from the Customer.
3.2 The following types of Accounts Receivable, maybe 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 Eligible 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;
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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.
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
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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 Biker's 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;
c) answering of Customer questions regarding charges billed by the Xxxxxx
for Eligible Services provided by the SV, 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
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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 all 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.
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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 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
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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
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.
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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 full value of the 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.
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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 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 8th day of August 2000
and will continue afterwards for successive month-to-
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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 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 associated 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
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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 favor 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.
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
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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 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.
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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.
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18.3 The warranties contained herein are subject to any limitation of liability
specified in this Agreement.
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 (e.g. 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 Parry 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.
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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.
Article 21 Governing Law
The terms of this Agreement will be governed by the laws of the Province of
Alberta 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
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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.
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:
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx X0x 0X0
Fax: (000) 000-0000 Phone: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx -President and CEO,
and to the Xxxxxx at the following address:
00, 000-0 Xxxxxx XX
Xxxxxxx, Xxxxxxx X0x 0X0
Fax: (000) 000-0000 Phone:(000) 000-0000
Attention: Xxx Xxxxxxxx - VICE PRESIDENT, International & Carrier
Services
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
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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.
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.
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IN WITNESS WHEREOF the Parties have executed this Agreement.
This 8th day of August, 2000, in the city of Scarborough, Province of ONTARIO,
by the SP, YAK COMMUNICATIONS (CANADA) INC.
Per: /s/ Xxxxxxx Xxxxxxx Signature
---------------------------
Xxxxxxx Xxxxxxx Name
---------------------------
President and CEO Title
---------------------------
(PLEASE PRINT OR TYPE NAME AND TITLE
OF PERSON WHO ACTUALLY SIGNS)
AND
This 15th day of August, 2000, in the city of CALGARY Province of ALBERTA, by
the Xxxxxx, TELUS Communications (B.C.) Inc.
Per: /s/ Xxx Xxxxxxxx Signature
---------------------------
Xxx Xxxxxxxx Name
---------------------------
Vice President,
---------------------------
International & Carrier
---------------------------
Services Title
---------------------------
(PLEASE PRINT OR TYPE NAME AND TITLE
OF PERSON WHO ACTUALLY SIGNS)
Per: /s/ Xxxxxx Xxxxxx Signature
---------------------------
Xxxxxx Xxxxxx Name
---------------------------
Vice President,
---------------------------
Government & Regulatory
---------------------------
Affairs Title
---------------------------
(PLEASE PRINT OR TYPE NAME AND TITLE
OF PERSON WHO ACTUALLY SIGNS)
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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
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