EXHIBIT 10.11
BILLING SERVICES AGREEMENT
BETWEEN
HBS BILLING SERVICES, LTD.
AND
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THIS AGREEMENT is entered into as of this ___day of ________, 199_
between HBS Billing Services, Ltd. ("HBS"), a Texas Limited Partnership with
headquarters located at 4242 Medical Drive, Suite 2100, San Antonio, Texas 78229
and ________________________ ("Customer") a_____________ Corporation with
offices located at ____________________________________.
WHEREAS, Customer markets telecommunications services; and
WHEREAS, HBS is a provider of Billing and Collection services for the
telecommunications industry; and
WHEREAS, Customer desires to utilize HBS' Billing and Collection
services;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the sufficiency of which the parties herein acknowledge,
the parties agree as follows:
I.
DEFINITIONS
All terms and phrases used within this Agreement shall be defined in
accordance with the everyday meaning used in the telecommunication industry
unless such term has been defined in this Agreement.
II.
TERM
The Agreement shall be effective for an initial term beginning on the
effective date shown above and ending on December 31st of the following year
(the "Initial Term"). Unless terminated in accordance with the terms herein,
this Agreement shall automatically renew for successive one (1) year terms
beyond its Initial Term until the earlier of (i) termination as provided in the
Agreement, or (ii) December 31st of any year in which notice of intent to
terminate is given in writing by either party on or before October 1st of the
same year.
III.
BASIC BILLING AND COLLECTION SERVICES
The following describes the billing and collection services that HBS
will provide to Customer:
3.1 HBS'S PREBILLING PROCESS.
a. Customer will submit call detail records only for those
NPA-NXX's that are billable by the LEC's enumerated in Exhibit
B. Such records will be submitted in the format specified by
HBS.
b. HBS will reformat Customer's records into Electronic Message
Interface ("EMI") records as required by the LEC's (Local
Exchange Carriers).
c. HBS will subject Customer's records to various Up-front Edits.
Records failing to pass these edits, referred to as "HBS
Up-front Rejects", will not be submitted to the LEC's.
d. HBS will submit records passing the Up-front Edits to the
appropriate LEC for Billing and Collection. Submission to the
LEC's will take place within five (5) business days after HBS'
receipt of Customer records. Customer will be charged fees and
reserves for such records as enumerated in Exhibits A through
D of this Agreement at the then prevailing rates.
e. HBS will furnish Customer with a Commitment Report summarizing
the records that were accepted and submitted to the LEC.
3.2 LEC BILLING PROCESS.
a. After HBS submits Customer's records to the LEC, the LEC
subjects the records to detail screening and editing tests.
Such tests are referred to as "LEC Up-front Edits", and
records rejected by the LEC as a result of these edits are
referred to as "LEC Up-front Rejects".
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b. Records passing the LEC Up-front Edits are technically correct
and eligible for billing by the LEC. The LEC notifies HBS of
its "Acceptance" (i.e. its "Purchase") of the records and
provides an accounting of the number and value of the records
accepted.
3.3 LEC COLLECTION, SETTLEMENT AND PAYMENT PROCESS
Generally, forty to sixty days after LEC's Acceptance of Customer's
records, the LEC will remit payment to HBS. The payment to HBS is typically net
of "Settlement Items" such as:
a. LEC billing costs;
b. Unbillable records which passed the LEC Up-front Edit Process;
c. Adjustments issued to End Users by the LEC and by HBS;
d. Bad Debt Reserve Holdback;
e. Bad Debt Reserve Trueup;
f. Other charges or credits made by the LEC under its Agreement
with HBS, including but not limited to any fines or penalties
or assements whatsoever billed to HBS by the LEC attributable
to the Customer based on customer complaints, regulatory
complaints, marketing practices or based on any other act or
omission by the Customer in violation of the LEC's contract
with HBS.
Payments from LEC's are made into an FDIC insured bank account
established for the purpose of disbursing LEC remittances to the proper parties.
3.4 HBS'S SETTLEMENT PROCESS
Within five (5) business days after funds are deposited into HBS' bank
account, HBS will prepare and distribute a Remittance Summary listing all
Remittance Advices scheduled for payment and any HBS invoices that will be
offset against them. Deductions will include:
- Service Fees (Exhibits A and D);
- Billing Costs (Exhibit B);
- Bad Debt Reserves (Exhibit C);
- HBS Reserve;
- Pass-through of chargebacks and credits invoiced to Customer as
enumerated in Para 3.3 (b.) through Para 3.3 (f.) above ;
- Termination and Contingency Reserves (Section VI);
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To the extent possible, HBS will chargeback (or credit) customer for
items related specifically to its end-user accounts. Where this is not possible,
customer will be chargedback (or credited) with settlement items based on the
relative volume that its chargebacks, credits, or shipment volumes bear to all
HBS customers' chargebacks, credits, or shipment volumes.
The Remittance Summary that HBS will distribute to Customer will set
forth the date on which HBS will wire funds to the following Customer bank
account:
Account Name __________________________________________
Account # __________________________________________
Bank Name __________________________________________
City, State __________________________________________
ABA# __________________________________________
The remittance date will generally be on the last business day of the
week and will be no longer than five (5) business days after HBS receives the
LEC's payment.
3.5 INFORMATION REQUIRED FROM CUSTOMER PRIOR TO BILLING
Customer will be required to provide the following information before
submitting records for billing and collection:
a. Provider Information as set forth in Exhibit "F"
b. Service Information as set forth in Exhibit "G"
c. Completed HBS Questionnaire as set forth in Exhibit "H"
IV.
OTHER SERVICES
4.1 ENHANCED SERVICE RECORD BILLING
a. HBS offers billing of non-toll telecommunication records
("Enhanced Records") to the extent authorized by the
individual LEC's. HBS will bill Enhanced Records for Customer
in accordance with the terms specified in Exhibit D.
b. HBS's fee schedule for Enhanced Records is specified in
Exhibit D.
c. LEC fee schedules for such billing are attached as Exhibit B-2
and are subject to change in accordance with the LEC `s
contract with HBS.
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4.2 OTHER SERVICES
HBS performs services other than Billing and Collection for its
customers including customer service inquiry, LEC unbillable and adjustment
processing and custom data processing reports. Exhibits "A" through "D" specify
the fees HBS will charge during the contract term except that LEC Billing Costs
and Bad Debt Reserve Holdbacks (Exhibits B and C) are subject to change in
accordance with the LEC's contract with HBS.
V.
RESERVES
5.1 LEC BAD DEBT RESERVES AND BAD DEBT RESERVE TRUEUPS
LEC Bad Debt Reserve Rates in effect at the date of this Agreement and
Bad Debt Reserve policies are set forth in Exhibit C.
5.2 HBS RESERVE
a. HBS will deduct 1% of Customer's Accepted Revenues from
settlements in the first twelve months of this Agreement to
protect itself against abnormal levels of chargebacks and/or
Bad Debt Trueups. This deduction is called the "HBS Reserve".
b. After twelve months HBS will advise Customer of the HBS
Reserve deduction and Reserve balance that it will require for
the next twelve months of the Agreement.
VI.
TERMINATION AND CONTINGENCY RESERVES
Customer understands that LEC charges for Unbillable Records, Bad Debt
Trueups and Customer Adjustments frequently are not fully known to HBS or to the
LEC's for up to eighteen months after Customer's records are billed. Customer
also understands that Customer and HBS have a mutual interest in ensuring that
adequate Customer funds are available when such charges become known. To ensure
that sufficient funds are available to repay such "Chargebacks", HBS will
require Reserves under the following circumstances:
a. Termination Reserve. At the termination of this Agreement, or
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when Customer's Accepted Revenue volume declines by 25% or
more for a 30 day period compared with the prior 90 day
average Accepted Revenue volume, in either case, Customer will
deposit with HBS an amount equal to ten percent (10%) of the
prior 90 days gross Accepted Revenues. In
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addition, HBS may require an increase in the Contingency
Reserve as described in subparagraph b. below.
The Termination Reserve will be returned to Customer beginning
in the fourth month following the assessment in monthly
amounts that cause the remaining Termination Reserve balance
to equal the following percentages of the original assessment:
PERCENTAGE OF
THE ORIGINAL
MONTHS ASSESSMENT
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1 to 3 100%
4 to 6 75%
7 to 15 25%
16 to 18 15%
19 and over to be determined by HBS
Realized Chargebacks will reduce the monthly refund dollar for
dollar.
b. Contingency Reserve. When HBS, in its sole discretion,
determines that it has reason to suspect that Customer's
Chargebacks over the next eighteen month period will require
funds greater than Customer has accumulated in its Bad Debt
Reserves and its Termination Reserve, HBS may require such
amount as it determines is reasonably needed to protect it
from future Chargebacks. The Contingency Reserve will be
returned to Customer at such time and in such amounts as HBS,
in its sole discretion, determines is appropriate under the
circumstances.
VII.
TAXES
7.1 TAXES BILLED AND COLLECTED BY THE LEC'S
a. In the normal course of the Billing and Collection process,
LEC's will bill and collect various Federal, state and local
taxes and tax-like charges on HBS' customers' records
according to their understanding of the various statutory
requirements.
b. Each month the LEC's provide HBS an accounting of taxes billed
and collected on behalf of HBS' customers and remit adequate
funds to enable HBS to report and pay to each taxing authority
the taxes they have determined are due.
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c. As a service to HBS' customers, HBS will cause consolidated
tax returns to be prepared and filed for records accepted by
the LEC's. Customer acknowledges that HBS prepares and files
tax returns based solely on information provided by the LEC's
and makes no attempt to independently verify the accuracy or
appropriateness of the LEC's accountings.
d. Customer authorizes HBS to combine its taxes with other HBS
Customers' taxes in order to file consolidated tax returns on
its behalf. Customer agrees to indemnify and hold harmless, as
set forth in Article XI of this Agreement, in its entirety
regarding any tax-related services provided by HBS.
e. Customer will advise HBS of any tax or tax-like charges that
it believes are unique to Customer's products that might
otherwise be taxed at erroneous rates by the LEC's. HBS will
evaluate Customer's proposed charges(s) and determine in its
sole discretion regarding any request to the LEC to change its
standard taxing procedures. HBS will cause the LEC's to bill
End Users for taxes when not specifically excluded by their
contract with HBS.
f. Customer acknowledges and agrees that HBS is acting merely as
Customer's agent with respect to arranging for the billing and
collection of taxes, and in no event shall HBS be entitled to
retain or receive from Customer (or from any End User) any
statutory fee or share of taxes to which the person collecting
the same may be entitled under applicable law.
7.2 TAXES NOT BILLED AND COLLECTED BY LEC'S
Customer acknowledges that it is responsible for reporting state and
local taxes and tax-like charges applicable to Message Toll Service ("MTS")
calls that originate and terminate in the same state but that are billed to an
End User in a different state. Taxes on such calls are known as "Foreign Taxes".
7.3 TAXES ON HBS AND LEC SERVICES
Customer acknowledges that certain services performed by HBS and by the
LEC's are subject to state and local taxes. HBS will add such taxes to the
amounts due HBS under the terms of this agreement and cause such taxes to be
reported and paid to the appropriate taxing authorities.
VIII.
INDEPENDENT CONTRACTOR STATUS
In rendering services to Customer it is intended that HBS will function
as an Independent Contractor. HBS will not:
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a. Assume any responsibility for the manner in which Customer
conducts its business;
b. Be deemed an agent, employee, joint venturer or partner of
Customer;
c. Take title to Customer's records nor assume any liability or
enjoy any benefit that may attach to the ownership of said
records. Customer understands that under terms of the LEC
billing and collection agreements, the LEC's will purchase
Customer's records simultaneously with accepting them. While
the billing and collections agreements belong to HBS, Customer
agrees that HBS will serve as a conduit by which title to
Customer's records are passed to the LEC's.
Customer appoints HBS its attorney-in-fact to cause its records to be
accepted and purchased by the LEC's, to collect and hold LEC remittances
relating to the records, to disburse proceeds to Customer, to cause taxes to be
reported and paid in accordance with this Agreement, and to take all other
actions that HBS deems necessary to fulfill its duties and responsibilities
under this Agreement. Customer hereby ratifies and confirms all that HBS does in
good faith to fulfill its duties and responsibilities hereunder.
IX.
HBS REPRESENTATIONS AND OBLIGATIONS
9.1) HBS hereby represents and warrants to Customer as follows:
a. HBS is a duly registered Limited Partnership, validly
existing, and in good standing under the laws of the State of
Texas, and has the power and authority to enter into this
Agreement and to perform its obligations hereunder.
b. Neither the execution and delivery of this Agreement by HBS
nor the performance by HBS of its obligations hereunder will
(i) conflict with or result in a breach of any provision of
the Articles of Partnership of HBS, (ii) result in a violation
of or default under any of the terms, conditions, or
provisions of any material license, agreement, lease, or other
obligation to which HBS is a party or by which it is bound or
(iii) violate any material order, writ, injunction, decree,
statue, rule, or regulation applicable to HBS or its
properties or assets.
c. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, HBS
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MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO
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CUSTOMER OR TO ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION
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ANY WARRANTIES REGARDING TITLE TO OR THE MERCHANTABILITY,
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SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE, OR
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OTHERWISE
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IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE
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PARTIES OR CUSTOMER OR USAGE OF TRADE OF ANY SOFTWARE,
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SERVICES, OR MATERIALS PROVIDED UNDER THIS AGREEMENT.
--------- -- --------- -------- ----- ---- ---------
d. That this Agreement constitutes a legal, valid, and binding
agreement of HBS, enforceable against HBS in accordance with
its terms.
X.
CUSTOMER'S REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
10.1 CUSTOMER HEREBY REPRESENTS AND WARRANTS TO HBS AS FOLLOWS:
a. Customer is duly organized, validly existing, and in good
standing under the laws of its state of organization and has
the power and authority to enter into this Agreement and to
perform its obligations hereunder.
b. Neither the execution and delivery of this Agreement by
Customer nor the performance by Customer of its obligations
hereunder will (i) conflict with or result in a breach of any
provision of the organizational or other governing documents
of Customer, (ii) result in a violation of or default under
any of the terms, conditions, or provisions of any material
license, agreement, lease, or other obligation to which
Customer is a party or by which it is bound or (iii) violate
any material order, writ, injunction, decree, statute, rule,
or regulation applicable to Customer or its properties or
assets.
c. Customer has filed all tariffs and has obtained all
governmental and regulatory authorizations, approvals, and
other consents, all of which are in full force and effect,
that are required by law or any Governmental Authority for the
provision by Customer of telecommunications services to End
Users.
d. Customer's EMI billing records submitted pursuant to this
Agreement are not subject to any other valid or existing
billing and collection agreement, and have not been billed
previously and will not be billed by another party following
submission to HBS.
e. All information contained in the HBS Questionnaire is true and
accurate in all respect.
10.2 CUSTOMER HEREBY ACKNOWLEDGES THE FOLLOWING OBLIGATIONS:
a. This Agreement constitutes the legal, valid, and binding
agreement of Customer, enforceable against Customer in
accordance with its terms, except as the same may be limited
by bankruptcy, insolvency,
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reorganization, moratorium, or similar laws now or hereafter
in effect relating to creditors' rights and general principles
of equity.
b. Customer shall limit the number of EMI billing records for
Casual Zero Plus telephone traffic to not more than ten
percent (10%) of the total EMI billing records submitted to
HBS in any given transmission.
c. Customer will:
i. Obtain and maintain all licenses, franchises,
privileges, permits, consents, exemptions,
certificates, registrations, orders, approvals,
authorizations and similar documents and instruments
(collectively, the "Certifications") that are
required by any Governmental Authority having
jurisdiction over the business and operations of
Customer, and
ii. Comply with all laws and all applicable rules,
regulations and other requirements of any
Governmental Authority, and
iii. Comply with all rules and requirements of the LEC's
in whose jurisdiction records are submitted for
billing and collections.
iv. Update the HBS Questionnaire and any other
information required of Customer under this Agreement
within five (5) days of each written request from
HBS.
Customer will, upon execution of this Agreement, provide HBS
with a copy of each Certification or other written evidence of
compliance with such requirements by Customer. Customer will
promptly notify HBS in writing of any expiration, amendment,
or renewal of any such Certification. Customer will comply in
all respects with the Certifications and laws, rules,
regulations, and other requirements of any Governmental
Authority related thereto. HBS may terminate this Agreement
upon failure of Customer to obtain or maintain in full force
and effect, or to comply with any such Certification.
d. Customer will designate the name of, and at all times during
the Term, maintain a representative ("Customer
Representative") who will be an officer or employee of
Customer and who will be authorized to act as the primary
point of contact for HBS in dealing with Customer with respect
to the Services. Customer will notify HBS in writing of any
change in the person acting as the Customer Representative at
least ten days prior to the effectiveness of such change. The
Customer Representative will be responsible for directing,
insofar as HBS is concerned, all activities of Customer
affecting the provision of HBS services. HBS will be entitled
to rely upon any instructions or information provided to HBS
by the Customer
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Representative or other Customer representative, and HBS will
incur no liability in so relying.
e. Customer will inspect and review all reports and remittance
information prepared by HBS and will notify HBS of its
rejection of any incorrect reports and remittance information
within thirty (30) days after receipt thereof. Failure to
reject any such report or information will constitute
acceptance thereof, and waiver of any objections thereto.
f. Customer will be required to employ one of the following forms
of authorization as to each record submitted for billing:
i. Independent Third Party Verification, or
ii. Written Letter of Authorization or Sales Order, or
Voice recording of telephone sales authorization if
allowed by law in the jurisdiction(s) being served as
a substitute or supplement to independent third party
verification.
A valid authorization must include:
i. The name, address and telephone number of the
consumer.
ii. Assurance that the consumer is qualified to authorize
billing.
iii. A description of the product or service.
iv. A description of the applicable charges.
v. An explicit consumer acknowledgment that the charges
for the product or service will appear on the
telephone bill and acceptance by the consumer of the
offer.
g. Customer will comply with all numbered HBS Policy Statements
as issued during the contract period, and each such HBS Policy
Statement shall be deemed to be a part of this contract as if
fully set forth herein. Customer acknowledges receipt of all
numbered HBS Policy Statements issued as of the effective date
of this contract, if any, and agrees to be bound by same.
10.3 INDEMNITY
Customer shall indemnify and hold harmless HBS from and against any and
all losses, claims, damages, liabilities or lawsuits asserted by third
parties and/or Customer or to which HBS may become subject, and to
reimburse HBS for any legal or other expenses (including the cost of
any investigation and preparation)
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incurred by HBS, whether or not resulting in any liability, based upon
the Agreement and related Exhibits and/or arising out of Customer's
breach of any representation, warranty or obligation provided in this
Agreement.
XI.
LIMITATION OF LIABILITY
11.1 LIMITATION OF LIABILITY
a. LIMITATION OF LIABILITY. Excluding gross negligence, HBS will
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not be liable to Customer or to any third party for any actual
or exemplary damages or lost profits, lost savings,
professional fees, incidental or consequential damages,
arising out of acts or omissions, including any mistakes,
accidents or errors in performance by HBS, which relate to
this Agreement or the goods and services provided hereunder.
b. CORRECTION OF ERRORS. HBS will use its best efforts to correct
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any alleged acts or omissions as described above in a timely
fashion upon written notice from Customer, although HBS shall
not be liable for specific performance or in any other way
become liable to Customer for any of the acts, omissions or
losses stated above as a result of its correction efforts. In
this regard, HBS will reprocess or resubmit records,
recalculate sums receivable or payable, or refile returns as
needed (but not more than once as to each such corrective
action), but HBS does not guarantee its correction effort, nor
does HBS represent or warrant that all acts or omissions as
described above will be corrected. Customer agrees that its
sole remedy for any of the above referenced acts or omissions
or losses shall be limited to the corrective actions described
herein.
c. LIMITED WARRANTY. THE EXPRESS WARRANTIES STATED IN THIS
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AGREEMENT REGARDING CORRECTIVE ACTION BY HBS ARE IN LIEU OF
ANY OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, AND HBS
MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED OR STATUTORY, AS
TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR
FITNESS OF ITS SERVICES, ALL OF WHICH WARRANTIES ARE HEREBY
EXCLUDED AND DISCLAIMED.
d. REMEDY FOR GROSS NEGLIGENCE. Customer further agrees that in
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the event of gross negligence on the part of HBS, the total
amount of damages for all purposes, (including actual or
exemplary or consequential or incidental damages or
professional fees), will not exceed, in the aggregate, an
amount equal to the total charges for services paid to HBS
during the three month period immediately preceding the
occurrence of the event, act or omission giving rise to the
claim. Any action or claim by Customer for gross
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negligence must be made within three months of the event, act
or omission giving rise to such claim.
e. HOLD HARMLESS AND INDEMNITY. Customer and HBS expressly
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acknowledge that HBS' limited liability described above
represents the understanding of how the risks and liabilities
between Customer and HBS are to be allocated. The parties
reached this understanding by weighing the fees charged by HBS
for its services under this Agreement against the recovery
that Customer would be entitled to in the event that any of
the acts, omissions or losses described above were to occur.
XII.
DEFAULT AND TERMINATION
12.1 DEFAULT
Default hereunder shall be:
a. Failure to make any payment when due and such failure
continues for ten (10) business days after written notice;
b. Breaches of any duties or obligations under this Agreement,
provided that o the extent that LEC and/or regulatory time
constraints permit, Customer will be provided thrity (30) days
written notice from HBS to cure any such breach or default.
c. Customer elected to perform primary customer service functions
but failed to perform in accordance with the standards
specified in Exhibit E;
d. A party files for bankruptcy, is declared bankrupt, or is the
subject of any proceedings relating to liquidation,
insolvency, or for the appointment of a receiver or similar
officer for such a party, makes an assignment for the benefit
of all or substantially all of its creditors, or enters into
an agreement for the composition, extension, or readjustment
of all or substantially all of its obligations;
e. HBS reasonably determines that Customer's marketing and/or
business practices damage HBS' business reputation;
f. Customer misrepresents its product or its manner of marketing
or sales verification processes.
g. Breach of any covenant, condition or represenation contained
in any Exhibit to this Agreement.
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If either party defaults in the performance of any of its duties or
obligations under this Agreement and does not cure such default within the time
allowed herein above, then the non-defaulting party shall have the following
rights and remedies by giving written notice to the defaulting party:
1. To terminate this Agreement immediately;
2. To declare all amounts due under the Agreement from the
defaulting party to be immediately due and payable;
3. To seek damages, except as limited per this Agreement, from
the defaulting party;
4. To obtain all rights and remedies allowed by the Uniform
Commercial Code;
5. To seek injunctive relief to enforce the Agreement or obtain
equity from the defaulting party.
6. To invoke any remedy provided for in Exhibits attached to this
Agreement.
12.2 REGULATORY OR FORCE MAJEURE EVENTS.
Either party shall be excused without penalty from performing the
services contemplated by this Agreement if for a period not to exceed thirty
(30) consecutive days per event either party is unable to perform the duties
specified in this Agreement because:
a. Governmental enactment or interpretation of any statute, rule,
regulation, judgment, order or similar impediment to performance
of the services contemplated by this Agreement materially affects
the risks or financial results that were reasonably anticipated at
the date this Agreement was executed;
b. Acts of God, acts or omissions of the other party, civil
hostilities, court orders, third party acts or nonperformance,
utility or telecommunications failures or any other cause beyond
the reasonable control of Customer or HBS. Such events will not be
considered grounds for termination of this Agreement if the
affected party can reasonably be expected to resume its
contractual obligations within thirty (30) days from the date of
the event.
c. Unilateral changes or amendments by any LEC to a contract upon
which HBS relies to provide services to Customer, including any
amendment proposed by the LEC which, if not accepted by HBS, could
result in termination or early cancellation of any contract
between LEC and HBS.
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XIII.
REMEDIES AND DISPUTE RESOLUTION
13.1 REMEDIES OF HBS.
The parties specifically agree that any breach of this Agreement by
Customer which results in a violation of state or federal laws or regulations,
or constitues a breach or event of default on the part of HBS under any contract
with any LEC, will be difficult to compensate in damages and would jeopardize
the ability of HBS to continue providing services to other customers. It is
agreed, therefore, that in event of such material breach of this Agreement, HBS
shall be entitled to seek and obtain injunctive or any other relief available in
a court having appropriate jurisdiction without further proof than as offered in
this paragraph, and that the sum of $10,000 shall be good and sufficient bond
for such relief.
Notwithstanding this paragraph, HBS may also elect any or all other
remedies available, including actions for damages, at law or in equity.
13.2 ARBITRATION AT SOLE OPTION OF HBS.
Any controversy between the Parties to this Agreement may, at the
election and written request of HBS, be settled by arbitration in San Antonio,
Texas, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The award of the arbitrators, or of a majority of them
shall be final and judgment upon the award rendered may be entered in any court,
state or federal, having jurisdiction. Arbitrable disputes include any
controversy or claim between the Parties, including, without limitation, any
claim based on contract, tort, or statute, arising out of or relating to this
Agreement or any transaction related to this Agreement. HBS may serve a written
demand for arbitration to any and all opposing Parties within 180 days after
dispute has arisen or within 30 days after HBS receives service of process from
any court or regulatory body of competent jurisdiction relating to Customer. A
dispute is defined as having arisen upon receipt of a written demand or service
of judicial process. Failure to serve a demand for arbitration within the time
specified above shall be deemed a waiver of HBS right to compel arbitration of
such claim.
Customer and HBS will each bear its own fees, costs, and expenses of
the arbitration, including, without limitation, its own legal expenses,
attorney's fees, and costs of all experts and witnesses. The parties will each
be severally responsible for one-half of the fees, costs, and expenses of the
Arbitration Panel. Notwithstanding the foregoing, if the claim of either party
is upheld by the Arbitration Panel in all material respects, the Arbitration
Panel may apportion between the parties as the Arbitration Panel may deem
equitable the costs incurred by the prevailing party.
When invoked by HBS in writing, and except with regard to matters
involving any action necessary to enforce the award of the Arbitration Panel,
the parties agree that the
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provisions of this Section are a complete defense to any suit, action, or other
proceeding instituted in any court or before any administrative tribunal with
respect to any dispute, controversy, or claim arising under or in connection
with this Agreement or the provision of services by HBS. Nothing in this Section
will prevent HBS from exercising its rights to terminate this Agreement in
accordance with the terms of this Agreement.
XIV.
NOTICES
Any written notice, demand or request, required or authorized by this
Agreement, shall be deemed properly given to or served on HBS if mailed by
United States mail, certified, return receipt requested to:
HBS Billing Services, Ltd. (Attn. Rick Box)
4242 Medical Drive, Suite 2100
San Antonio, TX 78229
Any written notice, demand or request, required or authorized by this
Agreement, shall be deemed properly given to or served on Customer if mailed by
United States mail, certified, return receipt requested or sent via facsimile
transmission to:
Address:
Fax:
XV.
DISCLOSURE TO REGULATORS AND RELATED PARTIES BY HBS
AND MEDIA RELEASES
15.1 Customer agrees that the following information regarding Customer's
account may be shared with any member of the Coalition to Ensure
Responsible Billing practices and,upon request, with any LEC or any
state or federal law regulatory or law enforcement agencies:
a. Identifying information with respect to Customer's account and
programs if terminated for cause or terminated while any
investigation by any private or
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public entity regarding violation of state or federal laws or
regulations or contractual restrictions under any contract between
HBS and any LEC.
b. A description of specific practices relating to possible
violations of state or federal laws or regulations or contractual
restrictions under any contract between HBS and any LEC that have
been observed in Customer's account or otherwise disclosed to HBS
by Customer and any corrective or remedial action regarding same.
c. Aggregate data with regard to complaints filed with federal and
state government authorities or LECs received by HBS regarding
Customer.
d. Copies of this agreement and all correspondence relating to same.
15.2 All public announcements by either of the parties relating to this
Agreement except for announcements intended solely for internal
distribution to directors, officers and employees or any disclosures
required by legal, accounting, regulatory or stock exchange
requirements beyond the reasonable control of such parties will be
coordinated with and approved by both parties prior to the release
thereof.
XVI.
SEVERABILITY
If any provision of this Agreement is declared judicially invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement, it being the intent and agreement of
the parties that this Agreement will be deemed amended by modifying such
provision to the extent necessary to render it valid, legal and enforceable
while preserving its intent. If such modification is not possible, another
provision that is legal and enforceable and that achieves the same objective
will be substituted.
XVII.
WAIVERS
No delay or omission on the part of any party in exercising any right
or privilege under this Agreement will operate as a waiver thereof.
XVIII.
ENTIRE AGREEMENT
This Agreement (including schedules and exhibits hereto) constitute the
entire agreement between the parties and supersedes all prior and
contemporaneous agreements and understandings, whether written or oral, between
the parties. There are no representations, understandings or agreements relating
to this Agreement that are not fully expressed herein.
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XIX.
ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, however, Customer
shall not have the right to assign or transfer its obligations under this
Agreement without the prior written consent of HBS, which consent shall not be
unreasonably withheld.
XX.
NO THIRD PARTY BENEFICIARY
This Agreement will be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and assigns. This
Agreement is not intended, nor will it be construed, to create or convey any
right upon any entity not a party to this Agreement. HBS will not be responsible
for the services provided hereunder to any party other than Customer.
XXI.
GOVERNING LAW AND VENUE
This Agreement shall be deemed to be a contract made under the laws of
the State of Texas, and the construction, interpretation and performance of this
Agreement and all transactions hereunder shall be governed by the civil laws of
such state, except those laws regarding choice of law which would result in
application of the law of another jurisdiction. Venue for any action arising out
of or related to this Agreement or the conduct of the parties hereunder shall be
fixed in Bexar County, Texas by agreement of the parties.
XXII.
HEADINGS
The Article and Paragraph headings in this Agreement are for
convenience of reference only and in no way define, extend, or describe any of
the terms herein or affect the meaning or interpretation of the provisions of
this Agreement.
XXIII.
CONFIDENTIALITY
Each party agrees that all confidential information and trade secrets
communicated to it by the other party will be deemed to have been received in
strict confidence and will be used only for the purposes of carrying out the
prior written consent of the other party. Neither party will disclose any such
information received from the other party.
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XXIV.
COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
will be deemed an original and all of which taken together will constitute one
instrument.
* * * * *
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first set forth above.
CUSTOMER: HOLD BILLING SERVICES, LTD.
d/b/a HBS Billing Services, Ltd.
_______________________________ By: Avery-HBS, Inc.
Its: General Partner
By: ____________________________ By: ___________________________
Rick Box
Title: __________________________ Title: Vice President