Billing Performance Test Agreement



Billing Performance Test Agreement

This Billing Performance Test Agreement (“Agreement”) between Southwestern Bell Communications Services, Inc., (“SBCLD”), a Delaware corporation, with its principal office located at 5850 W.Las Positas Blvd., Pleasanton, California and Southwestern Bell Telephone Company (SWBT), a Corporation in good standing, organized and existing under the laws of the State of Missouri and having its principal place of business in San Antonio, Texas, is effective this ___ day of _______, 2001. Hereinafter SWBT and SBCLD will be referred to collectively as the “Parties” and individually as a “Party.”

Whereas, SBCLD would like to test SWBT's Billing and Collection Services for the states of Arkansas and Missouri; and,

Whereas, SWBT is willing to allow SBCLD to test SWBT's Billing and Collection Services (“Test Services”) for a limited period under certain conditions;

It is therefore agreed in consideration of the mutual promises contained herein:

1. Testing Period

The testing will begin on approximately March 2, 2001 and end on or about July 31, 2001 unless otherwise extended by mutual agreement of the parties hereto. Under the test, SBCLD will submit the amounts for SWBT to bill on the bill for the test accounts established by SBCLD.

2. Test Accounts

SBCLD will provide SWBT a list of the test accounts prior to submitting any billing to SWBT.

3. Test Calls

The following types of calls will be processed under this Agreement for test purposes:

a) One-plus direct dialed long distance toll calls.

b) Collect calls, third number calls, or calling card calls.

c) Directory assistance calls.

d) Dial-around calls.

e) Toll Free Service calls

SBCLD agrees not to submit calls for processing under this Agreement, other than the types of test calls listed above, without the written approval of SWBT.

4. SBCLD Responsibilities

A. SBCLD shall be responsible for calculating charges for the test accounts, including taxes and surcharges, providing billing detail data, packaging the invoice and providing post-billing Adjustment and text messages for the types of calls listed above in Section 3.

B. All SBCLD supplied source materials, including data, programs and supplies, must be machine processable and compatible with SWBT's equipment and techniques. SWBT may examine and test SBCLD’s materials at SBCLD’s expense to determine processability and compatibility with SWBT's equipment and data processing techniques. If any materials are incorrect, incomplete, not machine-processable or not compatible with SWBT's equipment or techniques, if requested by SBCLD, SBCLD agrees to pay SWBT and SWBT agrees to perform the work necessary to prepare the materials, if possible, for processing at SWBT’s prevailing rates.

5. Understanding

As part of this Billing Test Performance Agreement, SWBT will use its billing and collection procedures and its billing and collection prices set forth in Exhibits A, B, and C of this Agreement. However, this is in no way is intended to imply that SBCLD is purchasing billing and collection services from SWBT for the states of Arkansas and Missouri and both Parties expressly agree that SBCLD is not purchasing billing and collection services from SWBT for Arkansas and Missouri.

6. Test Services

A. Rates and Charges for the Test Services

1 SWBT will perform these Test Services for SBCLD at the rates that SWBT charges in its standard Agreement for the Provision of Billing and Collection Services and in compliance with the affiliate transaction rules of the Federal Communications Commission (FCC).

2. An order form, to be separately signed by SBCLD, is attached hereto as Exhibit A. SWBT will provide services selected by SBCLD on said Exhibit A. Rates and charges applicable to the Test Services covered by this Agreement are also attached hereto as Exhibit A and are the rates charged in SWBT's standard Agreement for the Provision of Billing and Collection Services.

The following types of Billing and Collection Services will be provided to SBCLD by SWBT to be tested as part of the Test Services under this Agreement.

B. Bill Processing Services

SWBT will provide Bill Processing Service for the above listed types of calls where SWBT also sends a telephone bill to SBCLD for local telephone services provided by SWBT in SWBT's traditional franchised operating territory.

1. Bill Processing Service consists of posting rated messages and rate elements, preparation of bills for message-billed or invoice ready service, rendering of bills, receiving payments, maintenance of accounts, treatment of accounts, pre-billing message investigation as further described in the attached Exhibits B&C of this Agreement.

a) SWBT will process rated messages, billable under this Agreement, received from SBCLD for billing and render bills as set forth in the attached Exhibits B&C of this Agreement to the test accounts.

b) SWBT will purchase Test Accounts receivables in the manner described in Section 3 of the attached Exhibit B of this Agreement, so SBCLD can test this function of SWBT's Billing and Collection Services.

2. If ordered by SBCLD and agreed to by SWBT, SWBT will provide Marketing Message Service for each of the billed accounts as defined in the attached Exhibit B for testing purposes.

3. SWBT will provide billing format changes for test accounts and calls, when requested by SBCLD, in accordance with SWBT administration standards for bill format for testing purposes. Time and Cost request procedures described in the attached Exhibit B of this Agreement will be followed in implementing the change.

C.. Billing Information Services:

. Billing Information Service is the provision of account and message detail information to SBCLD from SWBT maintained record systems. The types of billing information services are described in the attached Exhibit B of this Agreement and will be provided for testing purposes in conjunction with the test calls.

7. Accuracy of Services

SWBT will take every precaution to ensure the accuracy of the Test Services it provides under this Agreement. SWBT, however, does not assume liability for the inaccuracy of any of the Test Services it performs under this Agreement, except for the correction of its work.

8. Proprietary Information

All information submitted by SBCLD Long Distance in connection with the Test Services performed by SWBT under this Agreement that are identified as proprietary information will be safeguarded by SWBT to at least the same extent as SWBT safeguards like information. If the information submitted by SBCLD is publicly available, is already in SWBT's possession, or known to SWBT, or is rightfully obtained by SWBT from third parties, SWBT will not bear any responsibility for its disclosure, inadvertent or otherwise.

9. Payment

SBCLD will pay all invoices from SWBT within thirty (30) days of the date of the invoice.

10. Limitation of Liability.

Neither Party will be liable for any incidental, special, or consequential damages unless expressly agreed to in writing. Neither Party shall be liable for its inability to meet the terms of this Agreement where such inability is caused by failure of the other Party to provide, after receipt of a written request, the information necessary to allow such Party to comply with the obligations stated herein. In no event shall either Party’s liability for any services or obligations to be performed under this Agreement exceed the amount of money paid by SBCLD.

11. Indemnification.

A. Each Party agrees to indemnify and hold harmless the other Party from and against any loss, cost, claim, liability, damage or expense (including reasonable attorney's fees) to third Parties, directly arising out of the sole negligence or misconduct by such Party, its employees, agents, or contractors associated with this Agreement.

B. It is the responsibility of SBCLD to ensure that the amounts to be billed by SWBT comply with all applicable (if any) statutory, legal, and regulatory requirements. SBCLD will indemnify, defend, and hold SWBT harmless from any loss, cost, claim, liability, damage or expense (including reasonable attorney's fees) arising from SWBT's billing of the charges where the charges do not comply with applicable statutory, legal, or regulatory requirements.

C. SBCLD shall also indemnify SWBT for any loss, damage, expense (including reasonable attorney's fees) or liability that may result by reason of any infringement or claim of infringement of any patent, trademark, copyright, trade secret or other proprietary interest based upon SWBT's provision of Services provided pursuant to this Agreement.

D. Each Party will notify the other Party promptly in writing of any written claims, lawsuits, or demand by third parties for which such Party alleges that the other Party is responsible under this section and tender the defense of such claim, lawsuit or demand to such Party. Each Party will cooperate in every reasonable manner with the defense or settlement of such claim, demand or lawsuit.

12. Amendments and Waivers

A. This Agreement or any part thereof may be modified or additional provisions may be added by written amendment signed by both Parties.

B. No amendment or waiver of any provision of this Agreement and no consent to any default under this Agreement shall be effective unless the same shall be in writing and signed by or on behalf of the Party against whom such amendment, waiver or consent is claimed.

C. In addition, no course of dealing or failure of any Party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition.

13. Assignment

Any assignment, in whole or part, by either Party, without the written consent of the other Party shall be void.

14. Notice and Demands

All communications regarding this Agreement should be sent to SWBT at Four Bell Center, 20th Floor, Dallas, Texas, 75202, attention Jim Walsh, and to SBCLD at Room 300, 5850 W. Las Positas, Blvd., Pleasanton, California, 94588, attention : Julie Arca, unless the Parties agree otherwise. All notices, demands, or requests which may be given by a Party to the other Party shall be in writing and shall be deemed to have been duly given 1) on the date delivered in person or 2) on the date of the return receipt for those sent postage prepaid, in the United States mail via Certified Mail, return receipt requested: or, 3) on the date transmitted electronically provided that the receiving machine delivers confirmation to the sender and receipt is verified through a phone call. If personal delivery is selected as the method of giving notice under this section, a receipt of such delivery shall be obtained.

15. Governing Law

The laws of the State of Arkansas shall govern this Agreement for services rendered in Arkansas and the laws of the State of Missouri shall govern this Agreement for services rendered in Missouri.

16. Force Majeure

Neither Party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, earthquakes or other major environmental disturbances, unusual severe weather conditions, epidemic, computer or equipment failure, inability to secure products or services, explosion, war, terrorist acts, riots, insurrections, explosions, accidents, power blackouts, strike, embargo, government regulation or requirement, civil or military authorities, Act of God or by the public enemy, or other causes beyond their reasonable control. If any force majeure condition occurs, the Party delayed or unable to perform shall give immediate written notice to the other Party. During the pendency of the force majeure condition the duties of the Parties under this Agreement shall be abated and shall resume without liability thereafter.

17. Compliance with Law

All terms, conditions and operations under this Agreement shall be performed in accordance with and are subject to all applicable state and federal, legal and regulatory requirements of all duly constituted authority and each party will comply with all applicable rules, orders, regulations, including the FCC's affiliate transaction rules, and all applicable laws. Both Parties reserve the right to amend, conform, or terminate this Agreement to conform it to any applicable laws or regulations or any requirement or order imposed by any court, administrative or regulatory body with proper jurisdiction.

It is the responsibility of SBCLD to ensure that the charges to be billed by SWBT comply with all applicable (if any) statutory, legal, and regulatory requirements.

18. Severability

Nothing in this Agreement is intended to obligate either Party to perform any act which is illegal or which is contrary to regulatory rule or order. If any provision of this Agreement is held invalid, unenforceable or void, the remainder of the Agreement shall continue in full force and effect, provided the remainder allows for implementation or continuation of the Services essentially as contemplated herein.

19. Termination

Either Party may terminate this Agreement at any time for failure of the other Party to comply with the terms and conditions of this Agreement and the other Party fails to cure such breach within ten days or lesser period that a Party may require because of legal, business, or regulatory restrictions applicable to the Party. Otherwise either Party may cancel this Agreement on thirty- (30) days written notice. In the event of termination, SBCLD must pay for all services performed up to the effective date of termination.

20. Representations and Warranties

A. SBCLD Representations and Warranties

1. SBCLD represents and warrants that the amounts submitted to SWBT to bill are for test calls incurred by the testers participating in the test and are illustrative of the charges an end user would be charged by SBCLD once SBCLD obtains regulatory authority to provide in-region InterLATA service within Arkansas and Missouri.

2. SBCLD also represents and warrants that the calls being made for the purpose of the test described herein are not calls being made by end users for the purpose of transmitting information of the end user’s choice but are test calls being made to test (1) SWBT’s Billing and Collection Services and (2) the interfaces between SBCLD’s billing systems and SWBT’s Billing and Collection Systems.

3. SBCLD further represents and warrants that these test calls are not being charged to an end user, nor are they part of a telecommunications service offered by SBCLD to the public for a fee.

4. SBCLD further represents and warrants that each of the test accounts are accounts of SBCLD set up specifically and solely to be used in the test described herein.

B. SWBT Representations and Warranties.

SWBT represents and warrants that it would (1) allow other interexchange carriers to test the SWBT Billing and Collection Service under the same terms and conditions as set forth in this Agreement and (2) provide the Test Services to other interexchange carriers under the same terms and conditions as set forth in this Agreement.

21. Entire Agreement

This Agreement, together with the Exhibits attached to this Agreement constitute the entire understanding between the Parties and supersedes all prior understandings, oral or written presentations, statements, negotiations, proposals and undertakings with respect to the subject matter hereof.

Southwestern Bell Telephone Company Southwestern Bell Communication Services, Inc.

Signed:___________________ Signed:____________________

Name:____________________ Name:_____________________

Title:_____________________ Title:______________________

Date:_____________________ Date:______________________

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