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BILLING AND COLLECTION AGREEMENT

Billing Services Agreement

BILLING AND COLLECTION AGREEMENT | Document Parties: BERRY CO LLC | Local Insight Yellow Pages, Inc | Regatta Holding I, LP | Regatta Holding II, LP | Regatta Holding III, LP | WCAS Capital Partners III, LP | Welsh, Carson, Anderson & Stowe IX, LP | Welsh, Carson, Anderson & Stowe VIII, LP | Windstream Communications, Inc | Windstream Regatta Holdings, Inc | Windstream Yellow Pages, Inc You are currently viewing:
This Billing Services Agreement involves

BERRY CO LLC | Local Insight Yellow Pages, Inc | Regatta Holding I, LP | Regatta Holding II, LP | Regatta Holding III, LP | WCAS Capital Partners III, LP | Welsh, Carson, Anderson & Stowe IX, LP | Welsh, Carson, Anderson & Stowe VIII, LP | Windstream Communications, Inc | Windstream Regatta Holdings, Inc | Windstream Yellow Pages, Inc

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Title: BILLING AND COLLECTION AGREEMENT
Governing Law: Delaware     Date: 7/11/2008
Law Firm: Kirkland Ellis    

BILLING AND COLLECTION AGREEMENT, Parties: berry co llc , local insight yellow pages  inc , regatta holding i  lp , regatta holding ii  lp , regatta holding iii  lp , wcas capital partners iii  lp , welsh  carson  anderson & stowe ix  lp , welsh  carson  anderson & stowe viii  lp , windstream communications  inc , windstream regatta holdings  inc , windstream yellow pages  inc
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Exhibit 10.9

BILLING AND COLLECTION AGREEMENT

(Foreign Customers)

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

(c) “ 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.

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

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

(f) “ Bad Debt ” means an account receivable due from a Foreign Customer arising from a Billing Transaction that remains unpaid as of the date that WCI ceases collection activities pursuant to Section 3.7.

(g) “ 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.

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

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

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

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

 

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(l) “ 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.

(m) “ 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.

(n) “ 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.

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

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

(q) “ 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.

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

(s) “ End User ” means a consumer that: (1) utilizes or subscribes to Publishing Services, and (ii) has an active account for local telephone service with WCI.

(t) “ End User B&C Agreement ” means that certain Billing and Collection Agreement, dated the Effective Date, between WIN and the Publisher pursuant to which WIN provides billing and collection services with respect to End Users.

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

 

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(v) “ Foreign Customer ” means a consumer that (i) utilizes or subscribes to Publishing Services, and (ii) is not an End User.

(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 the End User B&C Agreement.

(dd) “ Losses ” has the meaning ascribed thereto in Section 9.1 hereof. “ Operating Procedures ” means the operating procedures set forth in Exhibit A hereto.

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

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

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

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

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

(jj) “ 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 Foreign Customers; and (ii) tax-related surcharges or fees that are related to the Publishing Services provided to Foreign Customers and authorized by applicable tariffs.

 

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

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

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

(nn) “ 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.

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

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

(qq) “ Unbillable ” means those billing records, including Adjustments, which cannot be billed to a Foreign Customer account.

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

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

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

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

(vv) “ 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 Foreign Customers in tangible media (e.g., paper directories, CD-ROM), electronic media (e.g., Internet)

 

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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 ”. Publishing Services excludes any services provided by L.M. Berry under the L.M. Berry Contract.

Section 2.2 Billing of Publishing Services . WCI agrees to: (i) bill Foreign Customer accounts for amounts due to Publisher in respect of Publishing Services; (ii) provide the other Billing and Collection Services described herein; and (iii) remit to Publisher the amounts received from Foreign Customers for such Publishing Services less the Billing Cost and other payments due from Publisher pursuant to this Agreement, all upon the terms and subject to the conditions set forth herein. If any Billing Cost or other payments due from Publisher pursuant to this Agreement remain unpaid 30 days after such charges accrue due to insufficient amounts received from Foreign Customers, Publisher agrees to pay any such charges within 10 Business Days of written demand therefor from WCI.

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 Foreign Customer bill (including all collections and proceeds thereof) will continue to be owned by Publisher, except to the extent of any 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 Foreign Customer 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.

Section 3.2 Format of Bill . Except as otherwise provided herein, presentation of Billing Transactions in the bill will be in WCI’s standard format, as in effect from time to time, including, but not limited to, size of paper, logos, bill format, type of Billing Transactions, market messages and relationship to other sections within the same bill. Bills will use the same stock of paper as used in WCI’s standard bill format with WIN’s logo or watermark printed thereon. Publisher will also be identified on each bill. The charges for Billing Services cover only the costs of Billing Transactions on a single page bill and do not cover the cost of additional bill pages, bill inserts or other materials for inclusion in a bill mailing.

Section 3.3 Bill Mailing . For the purposes of this Agreement, if WCI prints a bill that includes a Billing Transaction that complies with Section 3.2, and deposits the bill with the United States Postal Service, it will be deemed to have “billed” the Billing Transaction contained on such bill.

 

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Section 3.4 Billing Procedures . WCI shall bill each Foreign Customer for Publishing Services (and taxes and/or late fees, to the extent such taxes and/or late fees are to be paid by such Foreign Customer and identified by Publisher) sold by Publisher to such Foreign Customer or placed by Publisher on behalf of such Foreign Customer, 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 Foreign Customer 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 it determines that a requested bill is “Unbillable.”

Section 3.5 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 Foreign Customer master filed records for all Publisher billing records to such Foreign Customer. If Publisher requests WCI to bill Foreign Customer on a basis other than monthly, WCI shall accommodate such request for such additional charges as may be mutually agreed by the parties.

Section 3.6 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 Foreign Customer 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 3.7 Collection Activities . All collection efforts with respect to amounts owing from Foreign Customer 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 a Foreign Customer with respect to Publishing Services (a) if WIN or its Affiliates would have written off the account balances if such balances were owed by such Foreign Customer 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 Foreign Customers whose account balances have been written off in the preceding period and for whom collection efforts have accordingly ceased.

Section 3.8 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.

 

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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 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 Foreign Customer 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 Foreign Customer’s remittances to the proper ABECs. Publisher will exercise commercially reasonable efforts to submit to WCI any Billing Transactions as soon as practicable, but in any event not more then ninety (90) days after the date on which the transactions occurred. WCI reserves the right to reject and return any Billing Transaction as Unbillable.

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

 

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Publisher Taxes charged to Foreign Customer for Publishing Services pursuant to Article X herein.

Section 5.5 Billing Inquiries . In the event that a Foreign Customer makes an inquiry or complaint regarding the Publishing Services: (i) if the inquiry or complaint is made to WCI by a Foreign Customer, 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 Foreign Customer with Publisher’s contact information in the case of 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 a Foreign Customer. Each Party will use commercially reasonable efforts to: (i) promptly and efficiently respond to and resolve Foreign Customer 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 Foreign Customer. 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 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 Foreign Customer’s bill. Publisher will provide WCI with a photo-quality reproduction of its logo for printing on the Foreign Customer bill. In addition, WCI will have the right to use the Licensed Property in connection with any informative message to the Foreign Customer defining the relationship between WCI and Publisher. 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 5.7 Billing Information . Publisher will provide to WCI in a timely manner all Foreign Customer 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 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.

 

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Section 5.8 Adjustments . If a Foreign Customer dispute regarding Publishing Services results in the necessity of an Adjustment, Publisher will notify WCI 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 Foreign Customer for Publishing Services). WCI shall have thirty (30) days to make the proper Adjustment in a bill to the Foreign Customer.

Section 5.9 Dispute Increases . Publisher will use commercially reasonable efforts to minimize the volume of Foreign Customer disputes regarding the Billing and Collection Services.

Section 5.10 Adjustment Activity Increases . Publisher will use commercially reasonable efforts to minimize the volume of Publisher’s Adjustment activity.

Section 5.11 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, where:

“A” equals the total amount received by WCI from Foreign Customers for Publishing Services billed by WCI to Foreign Customers during the period in question

“B” equals the total amount of (i) a fee of $2.00 per every invoice sent to each Foreign Customer that includes a Billing Transaction during the period in question, plus 50% of the related cost of postage (the “ Billing Cost ”) and (ii) the other amounts payable by Publisher for the period in question pursuant to this Agreement.

 

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Section 6.2 Terms of Payment .

(a) Payments . WCI shall remit to Publisher the Total Amount Due to Publisher on each Business Day with respect to the amounts received by WCI from Foreign Customer on or before the applicable cut off time for processing payments received on the immediately preceding Business Day. Each remittance that deducts any Billing Cost or other charges will be accompanied by a reconciling report substantiating all such Billing Costs and other charges. Each remittance will be effected pursuant to electronic fund transfer procedures agreed upon by the parties.

(b) Late Payment Penalty . If any portion of the Total Amount Due to Publisher is not received by the payment date as set forth in subsection (a) 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 Postage Costs . The Billing Cost covers WCI’s postage costs to mail each invoice in effect on the Effective Date. Publisher shall pay for any increases in postal rates after the Effective Date.

Section 6.4 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 6.5 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 Collection Services retroactive to the effective date of such order or other directive. WCI will use commercially reasonable efforts to deliver to Publisher thirty (30) days’ advance notice of such increase in costs and other reasonable information relating to such order or other directive. In the event of such an increase in costs, Publisher reserves the right to terminate this Agreement upon thirt


 
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