Exhibit 10.10

BILLING AND COLLECTION AGREEMENT

This BILLING AND COLLECTION AGREEMENT (this “ Agreement ”) is entered into as of November 30, 2007 (the “ Effective Date ”), by and between Windstream Communications, Inc., a Delaware corporation (“ WCI ”), and Windstream Yellow Pages, Inc., an Ohio corporation (“ Publisher ”). Promptly after the date hereof, the Publisher will change its name to Local Insight Yellow Pages, Inc. WCI and Publisher are each sometimes referred to herein as a “ Party ” and together as the “ Parties ”. Capitalized terms not otherwise defined herein will have the meanings assigned to such terms in Article I.

RECITALS

A. Windstream Corporation (“ WIN ”), Regatta Holding I, L.P., a Delaware limited partnership, Regatta Holding II, L.P., a Delaware limited partnership, Regatta Holding III, L.P., a Delaware limited partnership (each a “ WCAS Sub ” and together the “ WCAS Subs ”), Welsh, Carson, Anderson & Stowe VIII, L.P., a Delaware limited partnership, Welsh, Carson, Anderson & Stowe IX, L.P., a Delaware limited partnership, and WCAS Capital Partners III, L.P., a Delaware limited partnership, have entered into that certain Share Exchange Agreement, dated as of December 12, 2006 (the “ Share Exchange Agreement ”), pursuant to which, as of the date hereof, the WCAS Subs have exchanged all the shares of common stock, par value $0.0001 per share, of WIN held by the WCAS Subs for all the shares of common stock, par value $0.01 per share, of Windstream Regatta Holdings, Inc., a Delaware corporation;

B. Section 2.1(c) of the Share Exchange Agreement provides for the execution of this Agreement at or prior to the Closing of the transactions contemplated thereby; and

C. Publisher desires to purchase, and WCI agrees to provide, the billing and collection services described in Exhibit A hereto (collectively, the “ Billing and Collection Services ”).

NOW, THEREFORE, in consideration of the mutual benefits accruing to each Party and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 General Rules of Construction . For all purposes of this Agreement: (i) the terms defined in this Agreement include the plural as well as the singular; (ii) all references in this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of the body of this Agreement; (iii) pronouns of either gender or neuter include, as appropriate, the other pronoun forms; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; (v) “or” is not exclusive; (vi) “including” and “includes” will be deemed to be followed by “but not limited to” and “but is not limited to”, respectively; (vii) any definition of or reference to any Law, agreement, instrument or other document herein will be construed as referring to such Law,

 

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agreement, instrument or other document as from time to time amended, supplemented or otherwise modified; and (viii) any definition of or reference to any statute will be construed as referring also to any rules and regulations promulgated thereunder.

Section 1.2 Definitions . The following definitions will apply within this Agreement:

(a) “ ABEC ” means the alternate billing entity code assigned by WCI for each of Publisher’s separate lines of business or separate directories, as required by WCI’s billing system.

(b) “ Actual Bad Debt ” has the meaning ascribed thereto in Section 6.4(a) hereof.

(c) “ Adjustment(s) ” means post-billing transactions issued by Publisher or WCI for the purposes of debiting or crediting lawfully billed charges on the End User bill, whether as to an individual charge or for combinations of charges.

(d) “ Affiliate ” means a Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, a specified Person.

(e) “ Agreement ” has the meaning ascribed thereto in the Preamble hereto.

(f) “ Audit ” has the meaning ascribed thereto in Section 6.6(a) hereof.

(g) “ Bad Debt ” means an account receivable due from an End User arising from a Billing Transaction that remains unpaid as of the date that WCI ceases collection activities pursuant to Section 3.10; provided , however , that, in the event that the local telephone service of an End User is reconnected, only such portion of the End User’s account receivable as was unpaid at the time of reconnection shall, from such date forward, constitute Bad Debt unless and until such time as any additional portions of such End User’s account receivable remain unpaid as of any date that WCI next ceases collection activities pursuant to Section 3.10.

(h) “ Bad Debt Allowance ” has the meaning ascribed thereto in Section 6.1 hereof.

(i) “ Bankruptcy Code ” means the United States Bankruptcy Code (11 U.S.C. §§ 101 et seq.), as amended from time to time, and any successor statute.

(j) “ Billing and Collection Services ” has the meaning ascribed thereto in the Recitals hereto.

(k) “ Billing Cost ” has the meaning ascribed thereto in Section 6.1 hereof.

 

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(l) “ Billing Information ” has the meaning ascribed thereto in Section 5.9 hereof.

(m) “ Billing Transaction ” means a Publisher-originated charge-type transaction that results in an End User being billed for Publishing Services within the WCI-shared bill.

(n) “ Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in New York, New York are required or authorized by Law to remain closed.

(o) “ Change of Control ” means: (i) an acquisition by any Person or group of Persons of the voting stock of the referenced Person in a transaction or series of transactions, if immediately thereafter such acquiring Person or group has, or would have, beneficial ownership of more than 50% of the combined voting power of the referenced Person’s then outstanding voting stock, including any such acquisition by way of a merger, consolidation or reorganization (including under the Bankruptcy Code), or series of such related transactions, involving the referenced Person; (ii) a sale, assignment or other transfer of all or substantially all of the referenced Person’s assets; or (iii) a confirmation of any plan of reorganization or liquidation under, or sale of assets pursuant to, the Bankruptcy Code, any out-of-court recapitalization or reorganization transaction or exchange offer, in any case in which more than fifty percent (50%) of such Person’s outstanding equity securities are issued in exchange for all or a significant portion of such Person’s outstanding debt or other securities, or a deed in lieu of foreclosure or any other remedy or right at law or contract by which substantially all of such Person’s equity securities or assets are surrendered, assigned or otherwise transferred to another Person.

(p) “ Confidential Information ” means information disclosed by one Party to the other in the course of the performance of the Parties’ respective obligations or exercise of the Parties’ respective rights under this Agreement.

(q) “ Custom Request Work ” has the meaning ascribed thereto in Section 4.2 hereof.

(r) “ Developmental Charge ” has the meaning ascribed thereto in Section 4.2 hereof.

(s) “ Directory Advertising ” means Publisher’s foreign and local White Page advertising, Yellow Page advertising and other related Publishing Services agreed upon in writing by the Parties.

(t) “ Effective Date ” has the meaning ascribed thereto in the Preamble hereto.

(u) “ End User ” means a consumer that: (i) utilizes or subscribes to Publishing Services. and (ii) has an active account for local telephone service with WCI.

 

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(v) “ Force Majeure Condition ” has the meaning ascribed thereto in Section 14.1 hereof.

(w) “ Governmental Entity ” means any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign.

(x) “ Holiday ” has the meaning ascribed thereto in Section 6.2(b) hereof.

(y) “ Initial Term ” has the meaning ascribed thereto in Section 12.1 hereof.

(z) “ Invoice ” has the meaning ascribed thereto in Section 6.2 hereof.

(aa) “ Laws ” means all laws, statutes, ordinances, rules, regulations and orders of any Governmental Entity.

(bb) “ Licensed Property ” has the meaning ascribed thereto in Section 5.9 hereof.

(cc) “ L.M. Berry Contract ” has the meaning ascribed thereto in Section 11.1 hereof

(dd) “ Losses ” has the meaning ascribed thereto in Section 9.1 hereof.

(ee) “ Operating Procedures ” means the operating procedures set forth in Exhibit A hereto.

(ff) “ Page ” means the section of the WCI-shared bill where a Publisher’s Billing Transaction is printed, which for purposes of this Agreement is not the same as an actual sheet of bill paper stock, and which may take on different characteristics depending on the bill format, as described below:

1. Quad Formatted Bills (utilized for the majority of residence and small business accounts) provide for a single sheet of paper stock to be separated into four Pages, also known as Quadrants, with two Pages/Quadrants printed on each side of the paper.

2. Non-Quad Formatted Bills (utilized for large business accounts and “held-type” bills among others) provide for a single Page to be printed on either one full side of the bill paper stock or, in some cases, both full sides of the bill paper stock.

(gg) “ Party ” and “ Parties ” have the meanings ascribed thereto in the Preamble hereto.

(hh) “ Payment Date ” has the meaning ascribed thereto in Section 6.3 hereof.

 

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(ii) “ Person ” means an association, corporation, individual, partnership, limited liability company, trust or any other entity or organization, including a Governmental Entity.

(jj) “ Potentially Unbilled Transaction ” has the meaning ascribed thereto in Section 7.1 hereof.

(kk) “ Publisher ” has the meaning ascribed thereto in the Preamble hereto.

(ll) “ Publisher Taxes ” means (i) all state and local sales, use, value-added, gross receipts, foreign, privilege, utility, infrastructure maintenance, property, federal excise and similar levies, duties and other similar tax-like charges lawfully levied by a duly constituted taxing authority against or upon the Publishing Services provided to End Users; and (ii) tax-related surcharges or fees that are related to the Publishing Services provided to End Users and authorized by applicable tariffs.

(mm) “ Publishing Agreement ” means that certain Publishing Agreement, dated the Effective Date, between WIN and Publisher.

(nn) “ Publishing Services ” has the meaning ascribed thereto in Section 2.1 hereof.

(oo) “ Renewal Term ” has the meaning ascribed thereto in Section 12.1 hereof.

(pp) “ Services Areas ” has the meaning ascribed thereto from time to time in the Publishing Agreement.

(qq) “ Service Taxes ” means (i) all state and local sales, use, value-added, gross receipts, foreign, privilege, utility, infrastructure maintenance, property, federal excise and similar levies, duties and other similar tax-like charges lawfully levied by a duly constituted taxing authority against or upon the Billing and Collection Services performed by WCI under this Agreement; and (ii) tax-related surcharges or fees that are related to the Billing and Collection Services performed by WCI under this Agreement and authorized by applicable tariffs.

(rr) “ Share Exchange Agreement ” has the meaning ascribed thereto in the Recitals hereto.

(ss) “ Total Amount Due to Publisher ” has the meaning ascribed thereto in Section 6.1 hereof.

(tt) “ Unbillable ” means those billing records, including Adjustments, which cannot be billed to an End User account.

(uu) “ WCAS Subs ” has the meaning set forth in the Recitals hereto.

(vv) “ WCI ” has the meaning ascribed thereto in the Preamble hereto.

 

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(ww) “ White Pages ” means directories comprised of or containing alphabetical listings of subscribers having local exchange telephone service in the applicable geographic area.

(xx) “ WIN ” has the meaning ascribed thereto in the Recitals hereto.

(yy) “ Yellow Pages ” means directories comprised of or containing classified advertising.

ARTICLE II

PURPOSE

Section 2.1 Publishing Services . The purpose of this Agreement is to set forth the terms and conditions pursuant to which WCI will provide the Billing and Collection Services in support of Publisher’s business of publishing telephone directory products and services consisting principally of searchable (e.g., by alphabet letter or category) multiple telephone listings and classified advertisements that are delivered or otherwise made available to End Users in tangible media (e.g., paper directories, CD-ROM), electronic media (e.g., Internet) or digital media (e.g., PDA download), as conducted by Publisher on the Effective Date, or as may be approved by WCI from time to time pursuant to Section 5.2. Such products and services of Publisher will hereinafter be referred to collectively as “ Publishing Services ”.

Section 2.2 Billing of Publishing Services . WCI agrees to: (i) bill End User accounts for amounts due to Publisher in respect of Publishing Services within the Service Areas; (ii) provide the other Billing and Collection Services described herein; and (iii) remit to Publisher the amounts billed to End Users for such Publishing Services less the applicable Bad Debt Allowance and Billing Cost, all upon the terms and subject to the conditions set forth herein.

ARTICLE III

PROVISION OF BILLING AND COLLECTION SERVICES

Section 3.1 Agency; Ownership . WCI agrees and acknowledges that, subject to the various terms and conditions contained herein: (i) it is undertaking the various Billing and Collection Services with respect to Publisher’s properly submitted Publishing Service-related billing requests hereunder, as an agent for, and on behalf and for the benefit of, Publisher; and (ii) all right, title and interest in and to Publisher’s accounts receivable and all right to payment for Publishing Services rendered by Publisher and lawfully billed as charges on the WCI End User bill (including all collections and proceeds thereof) will continue to be owned by Publisher, except to the extent of any Bad Debt Allowance and Billing Cost or other payments due pursuant to Article VI hereof, in each case, which are properly deducted by WCI hereunder. The Parties agree that Publisher will exclusively and solely own all information of the End Users that is transmitted hereunder, together with all aggregated or generated data and compilations solely containing such information and generated hereunder (and such information will be subject to Article XIII), other than those components of such information provided to Publisher by WIN under that certain Publishing Agreement among WIN, the WCAS Subs and

 

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Publisher, of even date herewith, as the same may be amended, modified or supplemented from time to time.

Section 3.2 Shared Bill . Billing and Collection Services provided under the terms of this Agreement are contingent upon a shared WCI End User bill in which WIN or its Affiliates are the provider of local telephone service (subject to the assignment provisions contained in Section 15.2 hereof). In no event shall WCI have any responsibility hereunder for the provision of Billing and Collection Services with respect to any End User that does not have an account with WCI.

Section 3.3 Format of Shared Bill . Except as otherwise provided herein, presentation of Billing Transactions and Publisher’s portion of the bill will be in WCI’s standard format, as in effect from time to time, including, but not limited to, logos, bill format, type of Billing Transactions, market messages and relationship to other sections within the same bill.

Section 3.4 Billing Rights’ Notice . On an annual basis, WCI will provide End Users with information relating to their billing rights for Publishing Services, in accordance with Federal Communications Commission, Federal Trade Commission and other applicable legal guidelines. Publisher will prepare such information and agrees to pay WCI the costs associated with providing End Users with such information.

Section 3.5 Billing Disclaimers . Publisher agrees that WCI, in the event required by Law, will print a disclaimer on Publisher’s portion of the bill that advises End Users that failure to pay for Publisher’s charges billed within the WCI-shared bill will not result in the disconnection of the End User’s local telephone service, in accordance with federal and state truth-in-billing regulatory rules, including, without limitation, those promulgated by the Federal Communications Commission from time to time relating specifically to telephone bills.

Section 3.6 Bill Mailing . For the purposes of this Agreement, if WCI prints a bill that includes a Billing Transaction that complies with Section 3.3, and deposits the bill with the United States Postal Service, it will be deemed to have “billed” the Billing Transaction contained on such bill.

Section 3.7 Billing Procedures . WCI shall bill each End User for Publishing Services (and taxes, to the extent such taxes are to be paid by such End User and identified by Publisher) sold by Publisher to such End User or placed by Publisher on behalf of such End User, on a monthly basis pursuant to the Operating Procedures. Publisher shall notify WCI as to the account number, amount and description of charges to be billed to End Users by WCI in the format described in and otherwise in accordance with the Operating Procedures. WCI shall as promptly as practicable notify Publisher in accordance with the Operating Procedures if any End User that Publisher has requested WCI to bill does not have an active account with WCI as of the date of any applicable invoice or is otherwise “Unbillable.”

Section 3.8 Billing Account Maintenance . WCI shall be responsible for the updating, storage and retention of all Billing Information. WCI shall have the primary responsibility to establish and maintain the End User master filed records for all Publisher billing

 

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records to such End User. If Publisher requests WCI to bill End Users on a basis other than monthly, WCI shall accommodate such request for such additional charges as may be mutually agreed by the parties.

Section 3.9 Lost Billing Information . If any Billing Information is determined to be lost, damaged or destroyed by WCI as a result of its preparation and mailing to End Users of bills hereunder, WCI shall use all commercially reasonable efforts to recover such Billing Information. If the lost Billing Information cannot be recovered through the mutual efforts of the Parties (including via retransmission or re-sending by Publisher pursuant to Section 5.13), WCI shall, if reasonably practicable, estimate the billing records and associated revenues for purposes of any rebilling under Section 7.2, subject to Publisher’s prior review and approval of the amount billed.

Section 3.10 Collection Activities . All collection efforts with respect to amounts owing from End Users with respect to Publishing Services will be the sole responsibility of WCI; provided, however, that WCI shall have no further responsibility with respect to the collection of amounts owing from an End User with respect to Publishing Services (a) if WIN or its Affiliates has written off the account balances owed by such End User to WIN or its Affiliates due to non-payment or for any other reason or (b) to the extent agreed upon from time to time by the Parties. WCI shall send a semi-monthly notice to Publisher, on or about the 15 ^th and the last day of each month, indicating those End Users whose account balances have been written off in the preceding period and for whom collection efforts have accordingly ceased. In the event that WIN or its Affiliates reconnect the local telephone service of an End User whose account balances were previously written off under clause (a), WCI shall recommence the Billing and Collection Services with respect to such End User (it being understood that in such situation, WCI will not be obligated to collect amounts previously written off, but will be obligated to bill for and collect amounts owing with respect to additional Publishing Services provided following the date such End User’s local telephone service is reconnected).

Section 3.11 Collection Procedures . In collecting amounts due with respect to Publishing Services: (i) WCI shall apply the then-current procedures that WCI uses with respect to its own collection efforts and (ii) shall maintain separate accounts receivable and payment records with regard to the Publishing Services.

ARTICLE IV

DEVELOPMENTAL CHARGE(S)

Section 4.1 Set-Up Charges . Publisher acknowledges and agrees that it is responsible for paying the initial set-up costs for the implementation of each ABEC.

Section 4.2 Custom Request Work; Developmental Charges . Publisher may from time to time request that WCI develop one or more additional billing identifiers or other billing services (“ Custom Request Work ”). Subject to an agreement on terms and prices as contemplated in the next sentence, WCI will use, and will cause each of its Affiliates to use, its reasonable best efforts to accommodate any reasonable request by Publisher to develop Custom Request Work. Any such Custom Request Work shall be provided on such

 

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terms and at such prices (each, a “ Developmental Charge ”) as may be mutually agreed by the parties. All Developmental Charges will be due and payable to WCI in advance within thirty (30) days after WCI has agreed to implement the request.

ARTICLE V

RESPONSIBILITIES OF PUBLISHER

Section 5.1 Billing Codes . Publisher will utilize uniquely designated ABECs assigned by WCI for purposes of billing Publishing Services.

Section 5.2 Additional Publishing Services . Prior to submitting any new Publishing Services for billing as part of the Billing and Collection Services, Publisher agrees to prepare and submit to WCI a letter formally requesting the inclusion of such Publishing Services for billing as part of the Billing Agreement, together with such additional documentation and information as WCI may reasonably request, which may include marketing materials, program descriptions and content materials. In no event shall the Billing and Collection Services extend to any new Publishing Services unless and until approved by WCI in its sole discretion.

Section 5.3 Billing Transaction Representation . For Billing Transactions submitted to WCI for billing, Publisher will provide, as part of such Billing Transaction, pertinent data for presentation on the End User bill with the appropriate level of detail to ensure that the presentation of the charge/credit on the bill is a true representation of the transaction in all material respects. Without limiting Publisher’s obligations as set forth in the previous sentence, for each Billing Transaction submitted to WCI for billing, Publisher will provide the following information to ensure the presentation of the charge/credit on the bill is a true representation of the transaction with respect thereto: (1) service descriptions and/or program names; (2) transaction date; (3) total amount of the transaction, including appropriate tax(es); and (4) duration of the transaction for time-sensitive billing. Publisher will ensure that each Billing Transaction is coded with the correct directory ABEC, in order that WCI may correctly allocate End User’s remittances to the proper ABECs. Further, at the reasonable request of WCI, Publisher agrees to provide WCI with billing details that validate that the transaction was actually initiated and authorized by the End User.

Section 5.4 Applicable Taxes . Publisher agrees to submit Billing Transactions to WCI with any appropriate Publisher Taxes: (1) combined “bundled” with the Publishing Service charge or (2) as a separate Billing Transaction amount, in either case to the extent permitted by applicable Law. Further, Publisher will have the responsibility of setting the appropriate tax exemption indicator correctly within each Billing Transaction. It shall be the sole and exclusive obligation of Publisher to timely remit to the proper taxing authorities all Publisher Taxes charged to End Users for Publishing Services pursuant to Article X herein.

Section 5.5 Billing Inquiries . In the event that an End User makes an inquiry or complaint regarding the Publishing Services: (i) if the inquiry or complaint is made to WCI by an End User, WCI will use commercially reasonable efforts to (A) resolve inquiries regarding Billing Transactions, to the extent reasonably practicable to do so with the information available to WCI, (B) provide the End User with Publisher’s contact information in the case of

 

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inquiries regarding Billing Transactions that WCI cannot resolve pursuant to clause (A) above and any other inquiries relating to Publishing Services, and (C) refer complaints regarding Billing Transactions to Publisher; and (ii) Publisher shall have the responsibility for responding to queries and complaints regarding Billing Transactions and Publishing Services (A) referred to Publisher by WCI or (B) made to Publisher by an End User. Each Party will use commercially reasonable efforts to: (i) promptly and efficiently respond to and resolve End User billing inquiries and complaints for which it is responsible pursuant to the preceding sentence, including providing toll-free access to Publisher-service locations and adequate facilities and personnel to handle such inquiries and (ii) act honestly and fairly in all dealings with End Users. In addition, Publisher will use commercially reasonable efforts at all times to not intentionally do anything reasonably likely to discredit, dishonor or in any manner injure the reputation of WIN, WCI or the Billing and Collection Services covered by this Agreement and the quality image associated with WIN, WCI or such Billing and Collection Services.

Section 5.6 Dated Transactions . Publisher will exercise commercially reasonable efforts to submit to WCI any Billing Transactions as soon as practicable but in any event not more than ninety (90) days after the date on which the transaction occurred. WCI reserves the right to reject and return any such Billing Transactions to Publisher as Unbillable.

Section 5.7 Public Access Lines . Publisher will exercise commercially reasonable efforts not to submit Billing Transactions to WCI for billing on public access line accounts. WCI reserves the right to reject and return any such Billing Transactions to Publisher as Unbillable.

Section 5.8 Tradename and Logo . Publisher grants WCI a non-transferable (except pursuant to Section 15.2), revocable (solely in connection with the expiration or termination of this Agreement), royalty-free license to use Publisher’s tradename and logo (the “ Licensed Property ”) in connection with the provision of the Billing and Collection Services hereunder. WCI will have the right to use the Licensed Property on each Page of an End User’s bill that contains Publisher’s charges. Publisher will provide WCI with a photo-quality reproduction of its logo for printing on the End User bill. In addition, WCI will have the right to use the Licensed Property in connection with any informative message to the End User defining the relationship between WCI and Publisher as well as any mailing insert that may be agreed upon by WCI and Publisher and included by WCI from time to time in its bills to End Users to update End Users in regard to Publishing Services or billing therefor. Subject to Section 3.3, WCI shall comply with Publisher’s reasonable branding requirements as in effect from time to time with respect to the Licensed Property, provided , however , that Publisher hereby agrees to assume all direct costs of WCI as a result of any re-branding by Publisher.

Section 5.9 Billing Information . Publisher will provide to WCI in a timely manner all End User billing information necessary to permit WCI to provide the Billing and Collection Services (the “ Billing Information ”). Such information will be provided in a format that is mutually agreed upon by WCI and Publisher. In addition, in the event any reporting obligations or requirements are imposed upon WCI by any third party or Governmental Entity in connection with this Agreement or the Billing and Collection Services, each Party agrees to cooperate with the other Party, as reasonably requested, in complying with such

 

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obligations or requirements. Any such reporting obligations or requirements imposed upon WCI in connection with this Agreement or the Billing and Collection Services shall be at the expense of Publisher and at no cost to WCI.

Section 5.10 Adjustments . If an End User dispute regarding Publishing Services results in the necessity of an Adjustment, Publisher will inform WCI as soon as possible of the details of the Adjustment, including (1) description of Adjustment, including appropriate directory ABEC, (2) date of Adjustment, (3) amount of Adjustment (including applicable tax(es) in accordance with Section 10.1(d) herein), and (4) duration of Adjustment (whether a one-time Adjustment or an Adjustment in the monthly charge to the End User for Publishing Services). WCI shall have thirty (30) days to make the proper Adjustment in its End User bill.

Section 5.11 Dispute Increases . Publisher will use commercially reasonable efforts to minimize the volume of End User disputes regarding the Billing and Collection Services.

Section 5.12 Adjustment Activity Increases . Publisher will use commercially reasonable efforts to minimize the volume of Publisher’s Adjustment activity.

Section 5.13 File Copies; Retransmission . Publisher agrees to retain copies of all files transmitted or in any other fashion forwarded to WCI for a minimum of one hundred and eighty (180) days after the date of original transmission to WCI. Publisher further agrees to retransmit or re-forward files upon WCI’s reasonable request at no cost to WCI. Publisher will exercise commercially reasonable efforts to retransmit or re-send such files no later than ten (10) Business Days from receipt of a request from WCI. However, in the event WCI cannot receive the original transmission due to transmission system failure, improperly formatted data on the file or other reasons related to Publisher, Publisher will exercise commercially reasonable efforts to immediately retransmit the file upon correction of the problem causing the failure.

ARTICLE VI

PAYMENTS AND PRICES

Section 6.1 Calculation of Total Amount Due to Publisher . WCI shall remit to Publisher a total amount due for the Publishing Services billed pursuant to this Agreement (the “ Total Amount Due to Publisher ”), as further described in this Article VI. The Total Amount Due to Publisher shall be calculated in accordance with the following formula:

Total Amount Due to Publisher = A minus B minus C, where:

“A” equals the total amount of Publishing Services billed by WCI to End Users during the period in question;

“B” equals an allowance for Bad Debt equal to five percent (5%) (the “ Bad Debt Allowance ”) multiplied by A; and

 

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“C” equals a fee of $0.80 per every invoice sent to each End User that includes a Billing Transaction during the period in question (the “ Billing Cost ”).

Section 6.2 Terms of Payment .

(a) Semi-Monthly Payment . WCI shall remit to Publisher the Total Amount Due to Publisher twice per month, on the fifteenth (15 ^th ) and the last day of each month during the term of this Agreement. The remittance made on the fifteenth (15 ^th ) day of each month shall cover all amounts billed from the first (1 ^st ) through the fifteenth (15 ^th ) day of the preceding calendar month. The remittance made on the last day of each month shall cover all amounts billed from the sixteenth (16 ^th ) through the last day of the preceding calendar month. Each remittance will be accompanied by a reconciling report substantiating the payment being made in the form of Exhibit-B hereto.

(b) Weekends and Holidays . Notwithstanding the provisions of subsection (a) above, if any payment date falls on a Saturday, Sunday or a non-working day of either the receiving or remitting bank (a “ Holiday ”), payment of the Total Amount Due to Publisher will be due as follows:

(i) 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; and

(ii) If such payment date falls on a Saturday or on a Holiday that is observed on Tuesday, Wednesday, Thursday or Friday, the payment date shall be the last non-Holiday day preceding such Saturday or Holiday.

(c) Late Payment Penalty . If any portion of the Total Amount Due to Publisher is not received by the payment date as set forth in subsections (a) and (b) above, or if any portion of the Total Amount Due to Publisher is received in funds that are not immediately available, then a late payment charge shall be due. The late payment charge shall equal the result of multiplying the portion of the Total Amount Due to Publisher not received on or before the payment date by an amount equal to be lesser of (i) the highest interest rate allowed by applicable law and (ii) a daily percentage rate which, if compounded daily for a one year period, would result in a 6% per annum rate; in each case, compounded daily for the number of days from the payment date to and including the date that WCI’s payment is received. Any late payment will be separately remitted.

Section 6.3 Resources . Subject to Sections 3.10 and 3.11, WCI shall provide the resources it determines to be reasonably necessary in order to maximize the amount of Bad Debt recoveries and minimize the amount of Bad Debt relating to Publishing Services.

Section 6.4 Reconciliation of Bad Debt Allowance .

(a) Within thirty (30) days following the end of each calendar quarter during the term of this Agreement, WCI will provide Publisher with a written report of the actual Bad Debt experienced by WCI with respect to End Users for which collection efforts ceased

 

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pursuant to Section 3.10 during such preceding calendar quarter (the aggregate amount of such Bad Debt is referred to as the “ Actual Bad Debt ”).

(b) If the Actual Bad Debt for any calendar quarter exceeds (i) the Bad Debt Allowance in effect for such calendar quarter multiplied by (ii) the total amount of Publishing Services billed by WCI to End Users during such calendar quarter, then: (i) Publisher shall, within fifteen (15) days after WCI’s delivery of its analysis, deliver to WCI an amount equal to such excess and (ii) the Bad Debt Allowance for the then-current calendar quarter shall be adjusted for all remittances going forward to be an amount equal to the Actual Bad Debt for the preceding calendar quarter divided by the total amount billed by WCI for Publishing Services during such preceding calendar quarter.

(c) If (i) the Bad Debt Allowance in effect for any calendar quarter multiplied by (ii) the total amount of Publishing Services billed by WCI to End Users during such calendar quarter exceeds the Actual Bad Debt for such calendar quarter, then: (i) WCI shall, within fifteen (15) days after the delivery of its analysis, deliver to Publisher an amount equal to such excess and (ii) the Bad Debt Allowance for the then-current calendar quarter shall be adjusted for all remittances going forward to be an amount equal to the Actual Bad Debt for the preceding calendar quarter divided by the total amount billed by WCI for Publishing Services during such preceding calendar quarter.

Section 6.5 Payment Disputes . All disputes arising under this Article VI will be escalated through normal business procedures to the officer level of the respective Parties for their good faith negotiation and discussion for a period of not less than ten (10) days prior to commencement of any litigation.

Section 6.6 Audit .

(a) For purposes of this Section, an audit will mean a Publisher-requested comprehensive review performed by an independent auditor mutually agreed to by the Parties (hereinafter “ Audit ”) of the Billing and Collection Services. Such Audit may encompass one (1) or more departments, and will take place on Business Days during WCI’s normal business hours. Publisher may conduct one (1) Audit during each year of the term of this Agreement; provided , however , that if an Audit uncovers an aggregate discrepancy in excess of ten percent (10%) between the Total Amount Due to Publisher as reflected in reconciling reports contemplated by Section 6.2(a) and the Total Amount Due to Publisher for such periods as calculated in the Audit, then Publisher will be entitled to another Audit within that one (1) year period.

(b) Both Parties agree that the Audit will be limited to a statistically valid sample with a ninety percent (90%) confidence level and be further limited to the exact subject matter outlined in the written notification, as described in Section 6.6(c). All (i) WCI costs and expenses incurred during the Audit, including, but not limited to, investigative work, extraction of data and travel, masking, analyzing accounts, and (ii) costs and expenses associated with hiring a single independent auditor to perform the Audit and other Audit activities will be (x) borne by Publisher if the Audit uncovers an aggregate discrepancy of five percent (5%) or less between the Total Amount Due to Publisher as reflected in reconciling reports contemplated by Section 6.2(a) and the Total Amount Due to Publisher for such periods as calculated in the

 

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Audit, (y) shared equally if the Audit uncovers an aggregate discrepancy of greater than five percent (5%) and less than ten percent (10%) between the Total Amount Due to Publisher as reflected in reconciling reports contemplated by Section 6.2(a) and the Total Amount Due to Publisher for such periods as calculated in the Audit and (z) by WCI if the Audit uncovers an aggregate discrepancy of ten percent (10%) or greater between the Total Amount Due to Publisher as reflected in reconciling reports contemplated by Section 6.2(a) and the Total Amount Due to Publisher for such periods as calculated in the Audit. Prior to performing an Audit, the independent auditor will be required to sign a joint non-disclosure agreement in a form mutually agreed upon between Publisher and WCI.

(c) To initiate an Audit, Publisher will provide WCI with written notice of its intent to Audit as well as the specific requirements of the Audit. Such requirements will identify:

(i) the exact Billing Service to be audited;

(ii) the desired start date;

(iii) the desired Audit location;

(iv) Publisher’s representatives; and

(v) specific materials to be reviewed, i.e.,

(1) number of accounts;

(2) type of accounts;

(3) Billing Transaction details; and

(4) time period of data to be reviewed.

(d) After the Parties have agreed on the specific details of an Audit, including all requirements, a detailed time and cost estimate will be prepared by WCI in accordance with the prices specified in Exhibit C hereto.

(e) The independent auditor will have the right, on behalf of Publisher, to review all such records and accounts as may, under recognized or generally accepted accounting practices, contain information on Publisher’s End User accounts and Billing and Collection Services. WCI will cooperate with all reasonable requests of the independent auditor and provide as promptly as reasonably practicable all information relevant to such request (subject to the other provisions of this Agreement including this Section 6.6). All information reviewed by the independent auditor shall be considered Confidential Information of WCI for purposes of Article XIII hereof. WCI will provide for review extracts or masked data containing information pertinent only to Publisher. WCI will not be required to provide for review any portions of source documents that contain information relating to other entities for which WCI is providing Billing and Collection Services.

 

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(f) Upon completion of the Audit, corrective action, if any, will be initiated within thirty (30) days after the mutually agreed upon resolution.

Section 6.7 Certain Cost Increases . In the event of any Law or directive from a Governmental Entity that may cause WCI an increase in the cost of providing Billing and Collection Services, WCI reserves the right to allocate developmental costs associated with implementing the order across all affected customers and/or modify its rates for Billing and