30 OCTOBER
NEW ZEALAND GAZETTE
3653

interest at the Bill Rate (as at the date of the invoice) plus 1 percent per annum for the period from and including the date of the invoice to and including the date of payment of the refunded amount, such interest to be paid contemporaneously with the refunded amount. Nothing in this Clause 6.7 shall prevent the Service Operator from claiming an amount in accordance with Clause 6.8, if the Service Operator has reasonable cause to believe that the invoice contains a billing error which is not a Manifest Error.

6.8 If the Service Operator has a claim in respect of the accuracy or correctness of an invoice issued by a Telecom ROC (other than any claim in respect of a Manifest Error which has been made under Clause 6.6), the Service Operator shall no later than 12 months after the Due Date of the invoice which it disputes, serve notice on that Telecom ROC setting out details of the relevant invoice, the disputed amount and the grounds for the dispute together with supporting evidence. All disputes under this Clause 6.8 must be bona fide disputes for which the Service Operator has reasonable cause to believe that there has been a billing error.

6.9 The Telecom ROC and the Service Operator will use their reasonable endeavours to promptly settle any claim of a Manifest Error under Clause 6.6 and any claim of which a Telecom ROC is notified under Clause 6.8. Failing resolution:

6.9.1 in the case of claims under Clause 6.6, within 60 days from the Due Date of the invoice; and

6.9.2 in the case of claims under Clause 6.8, within 60 days of the date of the service of the notice under Clause 6.8;

either party may serve notice on the other that it wishes the dispute to be arbitrated and the dispute shall be referred to arbitration in accordance with Clause 30.3 on the expiry of 10 days from the date of service of such notice. The terms of reference of such an arbitration shall be agreed between the parties but in no event shall relate to matters other than the accuracy or correctness of the invoice.

6.10 If a claim under Clause 6.8 is resolved in favour of the Service Operator, then the Telecom ROC will forthwith refund to the Service Operator:

6.10.1 the disputed amount, or so much thereof as the resolution of the dispute dictates should be refunded;

6.10.2 interest at the Bill Rate (as at the date on which the overpayment was made by the Service Operator) plus 1% per annum on the refunded amount referred to in Clause 6.10.1 for the period from and including the date on which the overpayment was made by the Service Operator to and including the date of payment of the refunded amount, such interest to be paid contemporaneously with the payment of the refunded amount.

6.11 Nothing in this Agreement or in the terms of any invoice or statement shall prejudice each Telecom ROC’s right to charge the Service Operator for any services under this Agreement, the charges for which should have been included within earlier invoices or statements but which were inadvertently omitted. This right shall be limited to a period of 12 months from the date of the provision of the relevant service after which no charge may be made for that service.

6.12 Rebate amounts payable under this Agreement shall be paid as follows:

6.12.1 rebate amounts due from a Telecom ROC to the Service Operator under Clause 5.4.3.2 shall be applied as a credit on the invoices setting out the charges to which such rebates pertain;

6.12.2 the Service Operator shall serve notice on the Principal ROC when, in the opinion of the Service Operator, the total expenditure by the Service Operator on Telecom Group Services in any year (commencing on 1 April and ending on 31 March) has achieved a level referred to in Item 5 of Schedule J which entitles the Service Operator to receive a rebate. On receipt of such notice the Principal ROC shall promptly liaise with the Service Operator and promptly examine the records of Telecom Group with a view to establishing to its satisfaction that the expenditure level referred to in the Service Operator’s notice under this Clause 6.12.2 has been achieved. Where the Principal ROC is satisfied that an expenditure level referred to in Item 5 of Schedule J has been achieved, the Principal ROC shall forthwith serve notice on the Service Operator to that effect. Each Telecom ROC shall on and from the date of the Principal ROC’s notice under this Clause 6.12.2 apply the applicable rebate for the applicable expenditure level as a credit on invoices covering the period commencing after the date of the Service Operator’s notice under this Clause 6.12.2 to and including the next 31 March;

6.12.3 rebate amounts under Item 5 of Schedule J for any year commencing on 1 April and ending on 31 March shall be finally calculated by the Principal ROC after the end of that year and any adjusting payments shall be made by the Telecom ROC no later than the next 30 June;

6.12.4 credit notes for GST purposes showing the reduction in GST occasioned by virtue of a rebate will be provided to the Service Operator on payment of the rebate amounts under Clause 6.12.3.

6.13 A Telecom ROC may at the direction of the Service Operator apply any refunds payable under Clauses 6.6.3 and 6.10 or any amounts payable under Clause 6.12.2 as a credit towards other charges payable by the Service Operator under this Agreement.

6.14 Where:

6.14.1 an amount due from the Service Operator to a Telecom ROC under this Agreement remains unpaid after the Due Date of the relevant invoice; or

6.14.2 an amount due from the Service Operator to a Telecom ROC under Clauses 6.6.1 or 6.7 remains unpaid on the sixth Working Day after the date of resolution of the dispute;

then, without prejudice to any of the Telecom ROC’s rights of suspension or restriction of that Telecom ROC’s Network Service or the rights of termination of this Agreement, the Service Operator shall be liable to pay to that Telecom ROC interest on that amount at the Bill Rate (as at the day after the Due Date or the date 6 Working Days after the date of resolution of the dispute, as the case may be) plus 5 percent per annum, such interest to be charged:

6.14.3 in the case of interest payable in respect of amounts unpaid after the Due Date of the relevant invoice and except as provided in Clause 6.15, from and including the day after the Due Date of the relevant invoice;