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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
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