SERVICE LEVELS, FINANCING OR PAYMENT STREAMS, GEOGRAPHIC DISTRIBUTION
(INCLUDING THE USE OF OFFSHORE FACILITIES AND LABOR, COMPLEXITY OF SUPPORTED
ENVIRONMENT, TECHNOLOGIES EMPLOYED, TERMS AND CONDITIONS AND OTHER PERTINENT
FACTORS).
WHERE THE DIRECT AND PRECISE APPLICATION OF ANY LIMITATIONS,
CONDITIONS OR OTHER CONSTRAINTS RELATING TO THE MIX, VOLUME, TIMING OR TYPE OF
SERVICES UNDER ANY COMPARABLE AGREEMENT OR ANY OTHER FACTOR DESCRIBED IN THIS
PARAGRAPH (D) WOULD YIELD AN ANOMALOUS OR INEQUITABLE RESULT WITH RESPECT TO
EITHER PARTY, THE BENCHMARKER SHALL COORDINATE WITH IDEARC AND PROVIDER TO
OBTAIN THE INFORMATION NECESSARY TO MAKE REASONABLE ADJUSTMENTS TO APPROPRIATELY
REFLECT THE RELATED DIFFERENCES AND SIMILARITIES.
(E)
RESULT OF BENCHMARKING.
THE BENCHMARKER
SHALL PROVIDE BOTH PARTIES WITH A COPY OF THE BENCHMARKER'S REPORT SETTING FORTH
ITS FINDINGS AND CONCLUSIONS.
IF THE BENCHMARKER DETERMINES THAT THE CHARGES
PAID BY IDEARC FOR THE SERVICES UNDER THE APPLICABLE TRANSACTION DOCUMENT THAT
ARE THE SUBJECT OF THE BENCHMARKING EXCEED THE MEDIAN OF THE PRICES CHARGED BY
THE PEER GROUP FOR WORK OF A SIMILAR NATURE, TYPE AND VOLUME ("BENCHMARK
STANDARD") BY MORE THAN 5%, THE PARTIES SHALL ADJUST THE CHARGES TO EQUAL 105%
OF THE MEDIAN PRICE(S); PROVIDED THAT, IF THE CHARGES ARE DETERMINED TO BE
HIGHER THAN 10% ABOVE THE MEDIAN, THE CHARGES SHALL BE ADJUSTED TO EQUAL THE
MEDIAN PRICE(S).
IN ADDITION, PROVIDER SHALL
44
REIMBURSE IDEARC FOR ITS OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN CONNECTION
WITH THE BENCHMARKING.
SUCH ADJUSTED CHARGES WILL BE EFFECTIVE RETROACTIVELY,
IF NECESSARY, TO THE FIRST DATE OF THE CALENDAR MONTH IN WHICH THE BENCHMARKER'S
REPORT IS FIRST DELIVERED TO THE PARTIES.
AT PROVIDER'S REQUEST, IDEARC SHALL
GRANT PROVIDER UP TO 90 DAYS AFTER THE DATE OF THE BENCHMARKER'S REPORT TO
PREPARE AND IMPLEMENT AN AGREED PLAN TO BRING THE CHARGES INTO LINE WITH THE
BENCHMARKER'S REPORT.
IF PROVIDER FAILS TO MAKE THE ADJUSTMENTS AS REQUIRED BY
THIS SECTION 10.13, IDEARC MAY, AT ITS OPTION, TERMINATE THE AGREEMENT WITH
RESPECT TO ALL OR ANY PART OF THE SERVICES, WITHOUT PAYMENT OF ANY TERMINATION
FEES.
IF THE AGREEMENT IS SO TERMINATED WITH RESPECT TO PART OF THE SERVICES,
PROVIDER'S CHARGES SHALL BE EQUITABLY ADJUSTED TO REFLECT THE SERVICES NO LONGER
PERFORMED BY PROVIDER.
(F)
PROVIDER REVIEW AND DISPUTE.
PROVIDER
SHALL HAVE 30 DAYS FROM ITS RECEIPT OF THE BENCHMARKER'S REPORT TO REVIEW SUCH
REPORT AND CONTEST THE BENCHMARKER'S FINDINGS.
IF PROVIDER CONCLUDES IN GOOD
FAITH THAT THE BENCHMARKER'S REPORT CONTAINS MANIFEST ERRORS OF FACT, PROVIDER
SHALL NOTIFY IDEARC BY (I) IDENTIFYING, IN REASONABLE DETAIL, THE ERRORS;
(II) PROVIDING ANY REPORT, DATA OR OTHER EVIDENCE THAT DEMONSTRATES AND SUPPORTS
PROVIDER'S CONCLUSION; AND (III) PROPOSING SPECIFIC PROPOSED AMENDMENTS TO THE
BENCHMARKER'S REPORT (AND/OR THE BENCHMARKING RESULTS) NECESSARY TO CORRECT THE
ERRORS.
IDEARC SHALL REVIEW ANY SUCH NOTICE GIVEN BY PROVIDER AND TAKE
APPROPRIATE ACTION.
IF THE PARTIES DO NOT AGREE ON THE APPROPRIATE COURSE OF
ACTION RELATING TO ERROR CORRECTION OR IF THE PARTIES ARE UNABLE TO AGREE UPON
THE VALIDITY OF SUCH FINDINGS, THE MATTER SHALL BE RESOLVED PURSUANT TO THE
DISPUTE