<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 24, 1998
REGISTRATION NO. 333-56231
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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OPTEL, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 4841 95-4495524
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
1111 W. MOCKINGBIRD LANE
DALLAS, TEXAS 75247
(214) 634-3800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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LOUIS BRUNEL, PRESIDENT AND CHIEF EXECUTIVE OFFICER
OPTEL, INC.
1111 W. MOCKINGBIRD LANE
DALLAS, TEXAS 75247
(214) 634-3800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
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ERIC SIMONSON, ESQ. MICHAEL E. KATZENSTEIN, ESQ. JONATHAN A. SCHAFFZIN, ESQ.
KRONISH, LIEB, WEINER & HELLMAN LLP OPTEL, INC. CAHILL GORDON & REINDEL
1114 AVENUE OF THE AMERICAS 1111 W. MOCKINGBIRD LANE 80 PINE STREET
NEW YORK, NEW YORK 10036-7798 DALLAS, TEXAS 75247 NEW YORK, NEW YORK 10005
(212) 479-6000 (214) 634-3800 (212) 701-3000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES NUMBER OF SHARES OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED PER SHARE PRICE(1) REGISTRATION FEE
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Class A Common Stock, par
value $.01 per share.... $100,000,000 $29,500(2)
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 under the Securities Act.
(2) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on this 24th day of June, 1998.
OPTEL, INC.
By: /s/ LOUIS BRUNEL
----------------------------------
Louis Brunel
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Amendment No. 1 to
the Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated below.
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SIGNATURE TITLE DATE
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Principal Executive Officer:
/s/ LOUIS BRUNEL President and Chief Executive June 24, 1998
- ----------------------------------------------------- Officer
Louis Brunel
Principal Financial and Accounting Officers:
* Chief Financial Officer June 24, 1998
- -----------------------------------------------------
Bertrand Blanchette
* Controller June 24, 1998
- -----------------------------------------------------
Craig Milacek
Other Directors:
* Chairman of the Board June 24, 1998
- -----------------------------------------------------
Claude Chagnon
* Vice Chairman of the Board June 24, 1998
- -----------------------------------------------------
Alain Michel
/s/ LOUIS BRUNEL Director June 24, 1998
- -----------------------------------------------------
Louis Brunel
* Director June 24, 1998
- -----------------------------------------------------
Christian Chagnon
* Director June 24, 1998
- -----------------------------------------------------
William O. Hunt
* Director June 24, 1998
- -----------------------------------------------------
Lynn McDonald
</TABLE>
*By: /s/ LOUIS BRUNEL
-------------------------------
Louis Brunel
as attorney in fact
II-7
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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1.1 -- Proposed Form of Underwriting Agreement.*
2.1 -- Purchase Agreement (the "ICS Purchase Agreement") among
OpTel, ICS and ICS Licenses, Inc. dated as of March 4,
1998.(4)
2.2 -- Amendment Number One to the ICS Purchase Agreement dated
as of March 4, 1998.(4)
2.3 -- Purchase Agreement (the "Phonoscope Purchase Agreement")
dated as of August 13, 1997 among OpTel, Phonoscope,
Ltd., Phonoscope Management L.C., Lee Cook, Alton Cook
and Lee Cook Family Trust.(2)
2.4 -- Amendment Number One to the Phonoscope Purchase Agreement
dated as of August 13, 1997.(4)
2.5 -- Amendment Number Two to the Phonoscope Purchase Agreement
dated as of August 13, 1997.(4)
3.1 -- Amended and Restated Certificate of Incorporation of
OpTel, together with all amendments thereto.*
3.2 -- Amended and Restated Bylaws of OpTel.*
4.1 -- See the Amended and Restated Certificate of Incorporation
and the amendments thereto filed as Exhibit 3.1 and the
Amended and Restated Bylaws filed as Exhibit 3.2.
4.2 -- Certificate of Designation of Voting Power, Designations,
Preferences, Limitations, Restrictions and Relative
Rights of the Series A Preferred.(4)
4.3 -- Certificate of Designation of Voting Power, Designations,
Preferences, Limitations, Restrictions and Relative
Rights of the Series B Preferred.(4)
4.4 -- Registration Agreement, dated as of February 14, 1997,
between OpTel and Salomon Brothers Inc and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.(1)
4.5 -- Common Stock Registration Rights Agreement, dated as of
February 14, 1997, among OpTel, VPC, GVL and Salomon
Brothers Inc and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and U.S. Trust Company of Texas, N.A.(1)
4.6 -- Registration Rights Agreement, dated as of August 15,
1997, between OpTel and CDPQ.(2)
4.7 -- Registration Rights Agreement dated as of April 9, 1998
between OpTel, ICS, Nomura and MCI.(4)
4.8 -- Warrant Agreement dated as of September 1, 1996 between
OpTel and James A. Kofalt.(1)
4.9 -- Warrant Agreement, dated as of July 11, 1997, between
OpTel and Rory O. Cole.(2)
4.10 -- Indenture, dated as of February 14, 1997, between OpTel
and U.S. Trust Company of Texas, N.A., as Trustee.(1)
4.11 -- Form of Senior Note (included in Exhibit 4.10).(1)
4.12 -- Escrow Agreement, dated as of February 14, 1997, between
OpTel and U.S. Trust Company of Texas, N.A., as Trustee
and as Escrow Agent.(1)
5.1 -- Opinion of Kronish, Lieb, Weiner & Hellman LLP.*
8.1 -- Opinion of Kronish, Lieb, Weiner & Hellman LLP re: Tax
matters (included in Exhibit 5.1)
10.1 -- Stockholders' Agreement, dated as of December 22, 1994,
between VPC, Vanguard, Vanguard Communications, Inc.
("General Partner") and OpTel.(1)
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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10.2 -- Registration Rights Agreement, dated as of December 22,
1994, between OpTel and Vanguard.(1)
10.3 -- Settlement Agreement, dated as of August 1, 1996, between
Vanguard, General Partner, Pacific Capital Group, Inc.
("Pacific"), VPC, OpTel and GVL.(1)
10.4 -- Amendment, dated as of February 17, 1997, between
Vanguard, General Partner, Pacific, VPC, OpTel and
GVL.(1)
10.5 -- Form of Convertible Note (included as Exhibit B to the
Amendment referenced as Exhibit 10.4 hereto) and a list
of the issue dates and principal amounts of all
outstanding Convertible Notes (included as Schedule 1 to
the Amendment referenced as Exhibit 10.4 hereto).(1)
10.6 -- Stockholders' Agreement dated as of August 15, 1997 by
and among VPC, CDPQ and OpTel.(3)
10.7 -- Stockholders' Agreement dated as of April 9, 1998 among
OpTel, Nomura, MCI, GVL and ICS.(4)
10.8 -- Lease Agreement dated July 25, 1995 between Space Center
Dallas, Inc. and OpTel.(1)
10.9 -- First Amendment to Lease Agreement dated August 8, 1996
between Space Center Dallas, Inc. and OpTel.(1)
10.10 -- Restated Incentive Stock Plan of OpTel.*
10.11 -- Annual Bonus Plan of OpTel.(1)
10.12 -- 1998 Employee Stock Purchase Plan of OpTel.*
10.13 -- Employment Agreement between Louis Brunel and OpTel dated
November 15, 1996.(1)
10.14 -- Employment Agreement between Rory Cole and OpTel dated
January 3, 1997.(1)
10.15 -- Employment Agreement between Michael Katzenstein and
OpTel dated September 18, 1995.(1)
10.16 -- Separation and Consulting Agreement, dated as of
September 1, 1996, between OpTel and James A. Kofalt.(1)
10.17 -- Separation Agreement dated as of July 11, 1997, between
OpTel and Rory O. Cole.(4)
10.18 -- Assignment Agreement, dated as of February 14, 1997,
among TVMAX, Sunshine Television Entertainment, Inc.,
Richey Pacific Cablevision, Inc., IRPC Arizona, Inc. and
THI.(1)
10.19 -- Equipment License and Services Agreement, dated as of
February 14, 1997, between TVMAX and THI.(1)
10.20 -- Form of Shareholders Option Agreement, dated as of
February 14, 1997, between TVMAX and each of the
shareholders of THI, together with a list of the
shareholders of THI.(1)
10.21 -- Option Agreement, dated as of February 14, 1997, between
TVMAX and THI.(1)
10.22 -- City of Houston, Texas, Ordinance No. 89-338 dated March
29, 1989 granting to PrimeTime Cable Partners I, Ltd. the
right to operate for 15 years a Community Antenna
Television System, and subsequent ordinances consenting
to assignment of rights to EagleVision and to TVMAX
Communications (Texas), Inc.(1)
10.23 -- City of Houston, Texas, Ordinance No. 97-285 dated March
19, 1997, granting TVMAX Communications (Texas), Inc. a
temporary permit to operate a Telecommunications
Network.(1)
</TABLE>
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<TABLE>
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EXHIBIT
NUMBER DESCRIPTION
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10.24 -- City of Houston, Texas, Ordinance No. 97-1088 dated
September 3, 1997, extending to TVMAX Communications
(Texas), Inc. a temporary permit to operate a
Telecommunications Network (originally granted pursuant
to the permit referenced in Exhibit 10.23 hereto).(2)
10.25 -- City of Houston, Texas, Ordinance No. 97-1567 dated
December 23, 1997, granting to TVMAX Communications
(Texas), Inc. a franchise to operate a Telecommunications
Network (superseding and replacing the temporary permits
referenced in Exhibits 10.23 and 10.24 hereto).(4)
10.26 -- Amendment Number 001 to the Videotron/Lucent Agreement,
dated August 28, 1997, among Videotron Telecom Ltee and
Lucent Technologies Canada Inc. and TVMAX and Lucent
Technologies Inc.(2)
10.27 -- Credit Agreement dated as of December 19, 1997 (the
"Credit Agreement") among TVMAX, OpTel, Goldman Sachs
Credit Partners L.P., as arranger and syndication agent,
Canadian Imperial Bank of Commerce, individually and as
administrative agent, General Electric Capital
Corporation, individually and as documentation agent, and
the lenders party thereto from time to time
(collectively, the "Lenders").(4)
10.28 -- First Amendment to the Credit Agreement dated as of April
29, 1998.(4)
10.29 -- Guaranty dated as of December 19, 1997 between OpTel and
the Lenders.*
10.30 -- Pledge Agreement dated as of December 19, 1997 between
OpTel and the Lenders.*
10.31 -- Security Agreement dated as of December 19, 1997 between
OpTel and the Lenders.*
10.32 -- Subordination Agreement dated as of December 19, 1997
among OpTel, GVL and the Lenders.*
10.33 -- Interconnection Agreement under Sections 251 and 252 of
the Telecom Act by and between Southwestern Bell
Telephone Company and OpTel (Texas) Telecom, Inc.(2)
10.34 -- Residential Reseller Agreement dated as of May 29, 1998
by and between Teleport Communications Group Inc. and
TVMAX.
10.35 -- Strategic Alliance Agreement dated as of March 10, 1998
between I(3)S, Inc. and TVMAX.
21.1 -- List of Subsidiaries of the Company.(3)
23.1 -- Consent of Kronish, Lieb, Weiner & Hellman LLP included
in Exhibit 5.1.
23.2 -- Consent of Deloitte & Touche LLP.(4)
24.1 -- Power of Attorney is set forth on the signature page of
this Registration Statement.
</TABLE>
- ---------------
(1) Filed as an exhibit to the Company's registration statement on Form S-4
filed with the Commission on April 10, 1997.
(2) Filed as an exhibit to the Company's 10-K filed with the Commission for
fiscal year ended August 31, 1997.
(3) Filed as an exhibit to the Company's 10-K/A filed with the Commission for
fiscal year ended August 31, 1997.
(4) Filed as exhibit to the Company's registration statement on Form S-1 filed
with the Commission on June 5, 1998.
* To be filed by Amendment to this Registration Statement.
<PAGE> 1
EXHIBIT 10.34
RESIDENTIAL RESELLER AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of May, 1998, by and
between TELEPORT COMMUNICATIONS GROUP INC., a Delaware corporation with a
principal office located at One Teleport Drive, Staten Island, NY 10311
(hereinafter "TCG"), and TVMAX TELECOMMUNICATIONS, INC., d/b/a OpTel, Inc., a
Delaware business corporation with its principal office located at 1111 W.
Mockingbird Lane, Suite 1000, Dallas, Texas 75247 (hereinafter "Reseller"), for
the purpose of establishing a wholesale provider and reseller relationship
between them.
WITNESSETH:
WHEREAS, TCG is in the business of providing telecommunications services in
certain geographic market areas; and
WHEREAS, Reseller has applied to TCG for the right to rebrand and resell
TCG's services; and
WHEREAS, TCG has agreed to provide services to Reseller pursuant to the
terms and conditions set forth herein.
WHEREAS, TCG and Reseller wish to set forth terms and conditions which
will be applicable to such telecommunications services, as herein defined, of
TCG as may be ordered and furnished from time to time in various metropolitan
areas as herein provided. The services will be offered in each metropolitan area
by an entity. ("Authorized Entity") over which TCG has control as defined below,
and which is either an affiliate or subsidiary of TCG and/or which TCG manages
or is otherwise contractually affiliated with.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
warranties contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, as hereinafter defined, the following
terms shall have the respective meanings given to them in this Article 1, unless
the context requires otherwise. Said terms also shall have the said meanings
when used in any exhibit, schedule, attachment, or addendum hereto or in any
document made or otherwise delivered pursuant to this Agreement, unless the
context otherwise requires. Each term defined in this Article 1 shall be deemed
to refer to the singular, plural, masculine, feminine, or neuter as the context
requires.
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1.1. "AGREEMENT" means this Residential Reseller Agreement, as originally
executed and as the same may be amended, modified and supplemented from time to
time by exhibits, schedules, attachments or addendums executed in accordance
herewith.
1.2. "AFFILIATE" means, when used with reference to a specific Person, any
Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such specific Person.
This term shall also include any person who, directly or indirectly, through one
or more intermediaries, has the contractual right or option to acquire or vote
more than 10% of the voting interest of a specific Person.
1.3. "ASSIGNMENT" means a sale exchange, transfer or other disposition of
all or any portion of a Party's rights hereunder.
1.4. "BUILDING" means the structure in which a Residence is housed.
1.5. "BUSINESS DAY" means any day other than Saturdays, Sundays, and legal
holidays.
1.6. "CONTROL" (or the verb form "Controlled") means a Person shall be
deemed to control another Person when such controlling Person has the power,
directly or indirectly, to cause the direction of the management or policies of
such other Person, whether through the ownership of voting securities, by
contract, agency or otherwise.
1.7. "CUSTOMER" means any Residential end-user of the Services, any
commercial end-user of the Services with ten (10) directory numbers or less, or
any leasing office, property management office, or clubhouse located within or
upon a Premises.
1.8. "DIRECTORY NUMBER" or "DN" means a unique ten-digit number which
resides on a TCG switch.
1.9. "EFFECTIVE DATE" means the date of the last necessary signature
hereto.
1.10. "FCC" refers to the Federal Communications Commission.
1.11. "FINAL ORDER" means an action by any applicable federal or state
agency or court as to which: (i) no request for stay by the federal or state
agency or court of the action is pending, no such stay is in effect, and, if any
deadline for filing any such request is designated by statute or regulation, it
has passed; (ii) no petition for rehearing or reconsideration of the action is
pending and the time for filing any such petition has passed;
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(iii) the federal or state agency or court does not have the action under
reconsideration on its own motion and the time for such reconsideration has
passed; and (iv) no appeal to a court, or request for stay by a court, of the
federal or state agency's or court's action is pending or in effect, and if any
deadline for filing such appeal or request is designated by statute or rule, it
has passed.
1.12. "IXC" means a certified interexchange carrier.
1.13. "LEC" means a local exchange carrier certified as such within its
applicable regulatory jurisdiction.
1.14. "MDU" means multiple dwelling units, typically an apartment complex
or real estate development, but which may also include private single-family
residential developments, mobile home parks, and condominiums; where the
Services may be resold by Reseller to Customers. An MDU may consist of one or
more Buildings.
1.15. "MOU" means a minute of use of TCG's Services hereunder.
1.16. "PARTY" refers to one or both of the parties to this Agreement, TCG
or Reseller, as the context indicates.
1.17. "PERSON" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such person as
the context may require.
1.18. "POINT OF DEMARCATION" refers to the point(s) of interface, as
defined in any applicable Service Supplements (see Schedule C) to this Agreement
where each Party will receive the traffic from the other.
1.19. "PREMISES" means the property and any buildings thereon, described in
any applicable Service Supplement(s) attached hereto and incorporated herein
Such Service Supplement(s) may be amended or added to from time to time, or
additional Service Supplements attached, to permit additional properties to be
included in the Premises covered under this Agreement, and such amendment(s)
and/or additional Service Supplements shall be incorporated herein.
1.20. "PROPRIETARY INFORMATION" means information relating to the business,
and operations of TCG, Reseller, or their subsidiaries, affiliates, customers
and consultants including,
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but not limited to, all technical, marketing and financial information relating
thereto, any information relating to the pricing, methods, processes, financial
data, lists, apparatus, statistics, programs, research, development or related
information of TCG, Reseller or their subsidiaries or affiliates, or TCG's or
Reseller's customers, concerning past, present or future business activities or
operations of said entities or the provision of Services under this Agreement.
1.21. "RESALE SERVICES" are the telecommunications services including but
not limited to: long distance, internet and satellite service obtained by TCG
from a third party and resold to Reseller.
1.22. "RESIDENTIAL" or "RESIDENCE" means any single dwelling unit.
1.23. "SERVICE DATE" refers to the date when TCG notifies Reseller that
Services are available for use.
1.24. "SERVICES OR TCG'S SERVICES" refers to the wholesale switched
telecommunications services and features delineated in Schedules A and B hereto
and Resale Services, purchased by Reseller as an intermediary to be resold
exclusively to Customers in certain geographic market areas.
1.25. "TARIFFED SERVICES" are services offered by TCG pursuant to effective
tariffs filed with the various applicable state public service commissions,
public utility commissions or other similar bodies and/or the FCC.
ARTICLE 2
UNDERTAKING OF THE PARTIES
2.1. SCOPE. Reseller and TCG wish to set forth a standard set of general
terms and conditions which will facilitate Resellers' ability to order and
purchase Services from TCG and market, sell and distribute such Services to
Customers in various metropolitan areas only where TCG and Reseller have legal
authority to do so. The Services will be offered to Reseller by TCG in each
metropolitan area by an Authorized Entity. TCG will notify Reseller from time
to time of the identity of each Authorized Entity for which such terms and
conditions are applicable and of the appropriate procedure for placing orders.
Reseller and Authorized Entity may enter into service order agreements
pertaining to individuals Premises or other agreements supplemental hereto
(together with product descriptions attached thereto, the "Service Supplements")
pursuant to which Authorized Entity will provide Reseller with the Services
commencing on the Service Date (as hereinafter defined) and continuing for the
periods of time and on the other terms and conditions specified
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on such Service Supplements. The terms and conditions of this Agreement shall
apply to each Service Supplement, whether executed simultaneously herewith or
subsequent hereto.
2.2. SERVICES. The Services that may be ordered under and pursuant to the
terms and conditions of this Agreement are as described and set forth in
Schedules A & B hereto and in any applicable tariffs. These Schedules may be
revised from time to time by TCG in accordance with generally applicable changes
in TCG's Service offerings, provided that the Services shall not be materially
diminished from those set forth in Schedules A & B. TCG will inform Reseller of
any changes in its Services in a timely manner. All orders are subject to the
execution of a Service Supplement by Reseller and acceptance of same by TCG.
2.2.1. ORDERING. Reseller will market the Services to its Customers and
to prospective Customers. When Reseller desires to order Services under this
Agreement the Reseller shall submit to TCG Service Supplement executed by
Reseller in the form attached hereto as Schedule C. Upon acceptance of
Reseller's order, TCG shall execute the Service Supplement.
Procedures for ordering of individual DNs and provision of Services to
Customers shall be established and agreed to by the Parties.
2.2.2. ***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
2.2.3. FORECASTING. Upon the Effective Date hereof, Reseller shall submit
to TCG a forecast of the network facilities and DNs it will require from TCG, in
the form attached hereto as Schedule E (hereinafter, the "Forecast") for the
first 3 months of the first in-service quarter and for the first in-service
year. Reseller shall submit a revised rolling Forecast to TCG on the first day
of each quarter thereafter.
2.3. AUTHORITY OF RESELLER. When reselling TCG's Services, Reseller shall
at all times act as a reseller of TCG's Services in connection with its
solicitation of offers from Customers for Services. Reseller shall enter into
agreements with Customers for the Services and TCG shall not be a party to said
agreements. Reseller, as a residential retail provider, shall be limited to
selling Services to its Customers and represents and warrants that it will not
under this Agreement solicit offers for Services or enter into agreements
for the provision of Services to non-residential customers. RESELLER WARRANTS
AND REPRESENTS TO TCG THAT RESELLER WILL INCLUDE IN THE TERMS AND CONDITIONS OF
ITS CONTRACTS WITH ITS CUSTOMERS, DISCLAIMERS OF WARRANTY AND
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LIMITATIONS ON LIABILITY, GENERALLY CONSISTENT WITH THE PROVISIONS CONTAINED IN
SECTIONS 7.8 THROUGH 7.9 HEREOF, INCLUSIVE. Reseller shall have no right,
however, to enter into a contract on TCG's account or to bind TCG in any
manner.
2.4. RESELLER'S AUTHORIZATIONS. Reseller shall secure and maintain, at its
sole expense, all licenses and permits required by federal, state or municipal
law or regulation for it and its employees, agents or other representatives, to
ensure that Reseller may lawfully offer the Services hereunder and to ensure
Reseller's lawful performance of its obligations under this Agreement.
2.5. TARIFFED SERVICES. Some Services offered by TCG under this Agreement
may be TCG Tariffed Services. Orders for TCG Tariffed Services shall be made in
accordance with the applicable provisions of the TCG tariffs. In the event that
provisions set forth in this Agreement differ from those set forth in the
applicable federal and/or state tariffs, the terms of this Agreement shall be
deemed to waive or modify the terms of the applicable TCG tariff, to the extent
permitted by law. TCG may amend or modify the Services offered under Schedules A
and B, at any time, by ninety (90) days written notice to Reseller, provide that
no such amendment or modification shall operate to materially diminish the
availability of the Services, except to the extent required by general network
changes or facilities upgrades. Reseller shall immediately file a tariff, as
required by applicable law, on all Services purchased from TCG and offered for
sale to Customers.
2.5.1. SERVICE SUPPLEMENTS. The Services provided to Reseller shall be set
forth in Service Supplement(s) (see Schedule C) executed by TCG and Reseller
from time to time during the Term. Each Service Supplement shall include a
description of the location(s) of the Point of Demarcation, the charges, the
estimated Service commencement date, the term during which Services are to be
provided, the estimated DN and facility requirements (i.e. T-1s) and such other
terms and conditions as may be necessary.
2.5.2. When executed by Reseller and accepted by TCG, each Service
Supplement shall be deemed a separate agreement with all the rights and
obligations as provided for herein. All provisions of this Agreement applicable
to the Services described in each Service Supplement shall be incorporated into
and made part of such Service Supplement, except as may be otherwise expressly
provided in such Service Supplement.
2.5.3. In the event of a conflict or inconsistency between the provisions
set forth in this Agreement and those set forth in a Service Supplement, the
provisions of the Service
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Supplement shall be given precedence.
2.6. SERVICE DATE. At such time as TCG completes installation or connection
of the necessary fiber optic facilities and/or equipment to provide the
Services, TCG shall conduct appropriate tests thereon. Upon successful
completion of such tests TCG shall notify Reseller that such Services are
available for use. TCG shall use reasonable efforts, subject to the other
provisions hereof, to make the Services available by the estimated Service Date
specified in the Service Supplement. TCG shall not be liable for any damages
whatsoever resulting from delays in meeting any service dates due to delays
resulting from normal construction procedures. Such delays shall include, but
not be limited to, delays in obtaining necessary regulatory approvals for
construction, delays in obtaining right-of-way approvals and delays in actual
construction work. In the event there is a Reseller or Customer caused delay,
and such delay continues for thirty (30) days after the estimated service date
for any Resale Services, TCG may commence billing Reseller for the Resale
Services effective on such a date. TCG shall commence billing Reseller for the
Resale Services effective on the Service Date and, if applicable, for costs of
IntraLATA or InterLATA calls incurred by the Reseller subsequent to TCG
notifying Reseller that such Services are available for use. For any Resale
Services ordered by Reseller and provided by TCG, Reseller reserves the right to
delay the Service Date, and provide TCG as much advance notice as reasonably
possible, provided Reseller shall be liable to TCG for any applicable delay or
change order charge assessed by the provider of the Resale Services.
2.7. USE. Reseller shall only provide Services to Customers located at the
Premises. The Services shall be available to Reseller as set forth herein.
Reseller shall not use the Services (i) so as to interfere with or impair
service over any of the facilities and associated equipment comprising the fiber
optic cable network and associated equipment utilized by TCG in the provision of
the Services, or (ii) so as to impair the privacy of any communications over
such network and equipment, or (iii) create hazards to any employees or the
public. Reseller shall notify TCG regarding less than Standard operations with
respect to Services.
2.8 MAINTENANCE. TCG shall provide industry standard maintenance services
for the equipment and facilities provided and installed by TCG on its side of
the Point of Demarcation. Except as provided for in a Service Supplement, TCG
shall have no responsibility for the installation, maintenance and repair of any
kind with respect to equipment and facilities not provided and installed by TCG
for equipment and facilities or beyond the Point of Demarcation. For all repair
requests, Reseller shall establish pre-screening guidelines, subject to TCG's
prior
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consent, which shall be adhered to prior to referring trouble to TCG. Reseller
shall pay TCG for handling troubles that are found not to be in the TCG network,
as provided for in Schedule D. The Parties agree that TCG may contact Reseller's
Customers, if in its sole discretion, TCG deems it necessary for maintenance
purposes. Neither Party shall rearrange, move, disconnect, remove or attempt to
repair any facilities owned by the other Party, except with the written consent
of such other Party.
Reseller may order maintenance and repair of equipment and facilities installed
by TCG from the Point of Demarcation to the Residence, in accordance with
Schedule D.
2.9. RESALE SERVICES. TCG will use reasonable efforts to obtain, monitor
and provide Resale Services requested by Reseller. TCG shall use reasonable
efforts to obtain a sufficient quantity of telephone numbers to meet Reseller's
requirements, subject to availability and payment by Reseller. Should Reseller
request that TCG reserve additional numbers for future requirements, Reseller
shall pay associated reservation charges imposed by TCG until and including such
time as those numbers are in actual use which shall be no higher on a pro rated
basis than those charges imposed by the Resale Service provider. For DID
trunking, Reseller shall pay the associated reservation charges imposed by TCG
throughout the term of this Agreement which shall be no higher on a pro rated
basis than those charges imposed by the Resale Service provider.
The following special provisions apply to the provision of Resale Services, as
applicable: (i) Reseller's use of the Resale Services shall be subject to all
applicable terms and provisions contained in the applicable tariffs of the
providers of Resale Services as the same may be amended from time to time to the
same extent as if the tariffs were those of TCG. TCG shall notify Reseller, in
writing, which Services are subject to the tariffs of another service provider,
and shall furnish Reseller with a copy of the tariff provisions governing such
Resale Services, and shall notify Reseller of any amendments to such tariffs
upon learning of such amendments. (ii) in the event of a rate increase in the
tariffs for Resale Services, TCG may amend Schedule D to increase its
corresponding rates to Reseller on a pro rata basis to fully recover such
increase, notwithstanding anything to the contrary in any other agreement
between Reseller and TCG. If the Resale Services have a term requirement,
Reseller will be responsible to pay all charges through the end of the term, or
any applicable termination charges imposed by the provider of the Resale
Services in the event that Reseller terminates the Resale Services before the
end of the term, provided that, prior to the provision of any such Resale
Service, TCG notifies Reseller, in writing of the term requirement, applicable
termination charges and other terms and conditions relating to that requirement.
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(iii) TCG makes no representations, warranties or guarantees regarding the
quality, availability, installation or maintenance of the Resale Services.
Reseller's sole remedy in the event that such Resale Services are of poor
quality, are unavailable, or are not installed or repaired properly or on a
timely basis are such credits or other remedies as TCG may actually recover from
the provider of the Resale Services. TCG shall, at Reseller's request, permit
Reseller to seek such credits and other remedies directly from the underlying
service provider if permitted under TCG's contract with the service provider
or, in the alternative, act on TCG's behalf in doing so. Any rights to terminate
Service or receive credit for Service Outage, and any representations or
warranties contained in this Agreement or a Service Supplement between TCG and
Reseller relating to quality, availability or maintenance of Services shall not
apply to the Resale Services.
2.10. RIGHTS-OF-WAY. Except as otherwise provided herein or on a Service
Supplement and subject to Section 3.1.1., any and all costs associated with
obtaining and maintaining rights-of-way, lease, license or access agreement from
the Point of Demarcation to the Building or inside the Building, including, but
not limited to, the costs of installing conduit or of altering the structure or
Building to permit installation of facilities, shall be borne by Reseller. In
the event the Point of Demarcation is located within the Customer's Residence,
Reseller shall bear any and all costs associated with obtaining and maintaining
the rights-of-way, lease, license or access agreement from the Point of
Demarcation to the Customer Residence. Reseller's use of rights-of-way obtained
by TCG shall in all respects be subject to the terms, conditions and
restrictions of such rights-of-way and of agreements between TCG and such third
parties relating thereto, including without limitation, the duration applicable
to and the condemnation of such rights-of-way, and shall not be in violation of
any applicable governmental ordinance, law, rule, regulation or restriction.
Where applicable, Reseller agrees that it shall assist TCG at TCG's reasonable
expense in the procurement and maintenance of such right-of-way.
ARTICLE 3
RATES, PAYMENT AND COLLECTIONS
3.1. ***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
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***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
3.1.1. Except as otherwise provided in a Service Supplement, Reseller
shall: (i) acquire, install and maintain all access equipment and facilities
from the Point of Demarcation to the Residence, including all associated cable
and inter- and intra-Building and intra-Residence cabling compatible with TCG's
existing switching equipment and network architecture, (ii) acquire TCG
equipment or equipment which meets TCG's standard requirements or which is
otherwise approved by TCG (i.e. the subscriber line carrier, digital loop
carrier or access node and associated line card equipment), (iii) provide
transport and maintenance of the equipment, by whomever provided, from the Point
of Demarcation to the Residence, or from the point at which it leaves the
digital loop carrier, or the access node, whichever is applicable, (iv) provide
customer support and billing services to Customers, (v) maintain the TCG
specified environment for Reseller's and/or TCG's equipment and facilities; and
(vi) provide appropriate file record information and dataline services for
information transfers.
3.2. BILLING; LATE PAYMENT; BILLING DISPUTES. Recurring and nonrecurring
charges shall be billed as incurred and paid by Reseller in full within
forty-five (45) days of receipt of TCG's invoice. Any amount not received within
the forty-five (45) day period will be subject to a late charge of 1 1/2% per
month or the maximum amount permitted by law, whichever is less. Reseller shall
review each invoice promptly and notify TCG of any discrepancies within sixty
(60) days of receipt of each invoice. TCG shall promptly review any such notice
and in the event TCG determines that any billing adjustments in Reseller's favor
are required in TCG's reasonable judgement, TCG shall provide a credit to
Reseller on the next feasible invoice. In the event that TCG fails to provide to
Reseller the computerized usage recording system for a billing period within
ninety (90) days following the expiration of such billing period, TCG shall
provide Reseller a credit for such missed billing period based on an average of
usage for the prior three (3) months for such Premises. Reseller shall pay all
sales, use, gross receipts, excise, access, bypass or other local, state and
federal taxes or charges, however designated, imposed on or based upon the
provision, sale or use of the Services (excluding taxes on TCG's net income).
Such taxes shall be separately stated on the applicable invoice. Upon proof of
tax exemption certification
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from Reseller, the total amount billed to Reseller will not include any taxes
due from the Customer. In such event, Reseller will be solely responsible for
the computation, tracking, reporting and payment of all sales, use, gross
receipts, excise, access, bypass or other local, state and federal taxes or
charges, however designated, imposed on or based upon the provision, sale or use
of the Services (excluding taxes on TCG's net income). Reseller shall also
collect and remit any charges, surcharges, taxes, etc., however designated, as
required by any governmental or quasi-governmental authority, including by way
of illustration but not by way of limitation, E 9-1-1 surcharges.
3.2.1. Non-recurring charges per DN shall be waived by TCG, for an initial
six (6) month period, when Reseller either: (i) executes a Service Supplement(s)
for provision of TCG Services to a Premises in which Reseller has already been
providing telecommunications services prior to executing such Service
Supplement(s) with TCG; or (ii) enters into an agreement with the owner of an
existing building or MDU for the provision of TCG Services to residents of such
existing building or MDU.
3.3 CREDIT. TCG may perform an evaluation of Reseller's credit if there is
a material change in Reseller's creditworthiness and it is determined by TCG to
be reasonably necessary as a condition to providing services hereunder, and may
impose a cash deposit (in an amount not to exceed the average total monthly
billings to Reseller over the preceding three (3) month period) as security for
payment. A "material change" in Reseller's creditworthiness shall mean a
negative movement in Reseller's bond rating of equal to, or greater than, two
(2) rating levels according to Standard & Poor's Bond Rating Index, or if
Reseller is in arrears in its payments hereunder for good faith nondisputed
amounts for two (2) consecutive months and Reseller has failed to pay such sums
for more than ten (10) days after written notice of such failure from TCG.
Customers' creditworthiness is the sole responsibility of Reseller.
Reseller shall make all payments required hereunder regardless of whether
Customer makes payment to Reseller.
ARTICLE 4
TERM OF AGREEMENT; TERMINATION
4.1. EFFECTIVE DATE; RENEWAL. This Agreement shall become effective upon
the Effective Date and shall remain in effect for a period of six (6) years
unless otherwise terminated in accordance herewith. Unless notice is given as
provided herein, this Agreement automatically shall be renewed for successive
periods of two (2) years. In no event shall the minimum term of any Service
Supplement be less than twenty-four (24) months. The terms and conditions of
this Agreement shall apply to any
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Schedule C that remains unexpired after the end of the term.
4.2. TERMINATION EVENTS.
4.2.1 TERMINATION BY AGREEMENT. This Agreement shall be terminable by
either Party at the end of the initial or then-current renewal term upon written
notice given at least ninety (90) days prior to the end of the then-current
term. In the event that this Agreement is not renewed or Reseller does not give
TCG ninety (90) days written notice of its intent not to renew prior to the
termination date, this Agreement shall continue on a month to month basis. In
such event, either Party may terminate this Agreement upon thirty (30) days
prior written notice. In the event that TCG continues to provide Service
following termination of the term, such Service shall be provided at TCG's then
current tariffed residential retail rates or, in the absence of such rates, at a
rate determined by the applicable state and/or federal regulatory agency having
jurisdiction over the subject matter hereof.
4.2.2 INSOLVENCY. Either Party may terminate this Agreement or service
under any Service Supplement to this Agreement upon thirty (30) days notice to
the other Party in the event of: (1) an inability by the other party to pay its
debts as they come due, (2) the entering into by the other Party of a
composition or other arrangement with its creditors, the appointment of a
trustee or receiver, with or without consent, for the other Party of all or any
substantial portion of its property, or (3) the filing of a petition for relief
by or against the other Party under the Bankruptcy Code or any similar federal
or state statute (including moratorium laws); provided, however, that in the
case of an involuntary petition, there shall be no right of cancellation
hereunder if such Petition is dismissed within sixty (60) days after the filing
thereof.
4.2.3. LOSS OF OPERATING AUTHORITY. Affected Service Supplements to this
Agreement shall immediately terminate without notice and without liability or
further obligation on the part of either Party to the other if, by Final Order,
either Party loses its authority to provide the Services contemplated hereunder,
or if such authority is suspended or not renewed; provided, however, in such
event, both Parties shall do all that is within their lawful ability to prevent
loss of operating authority and termination of Service without notice to the
other Party or Customers and, for the Parties to assist each other in the
orderly transfer of Service to another provider (if not TCG).
If such authority is lost, suspended or not renewed with regard only to a
portion of the Services or service areas, then the provisions of this Section
4.2.2 shall only apply with regard to the Services or service area for which
authority is lost,
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suspended or not renewed. The provisions of this Section 4.2.2 shall not be
construed to affect or release either party from any obligation to pay for
Services provided prior to the automatic termination hereunder.
4.2.4. GOVERNMENTAL AUTHORIZATIONS. (a) The obligations of TCG to
provide the Services is contingent upon its obtaining and retaining at its
expense such approvals, consents, governmental authorizations, rights of entry
and rights of way, licenses, franchises, certificates, and permits, including
those of the FCC and any applicable state regulatory agency, or state, county
or municipal or quasi-municipal body ("Authorizations"), as may be required or
be deemed necessary by TCG in order to effectuate this Agreement. TCG shall use
best efforts to obtain and maintain in effect all such approvals, consents,
authorizations, licenses, certificates and permits as may be required to be
obtained in order to effectuate this Agreement. TCG shall be entitled to take,
and shall have no liability whatsoever for, any action necessary to bring the
Services into conformance with any rules, regulations, orders, decisions, or
directives, of the FCC and any applicable state regulatory agency, or state,
county or municipal or quasi-municipal body and Reseller shall fully cooperate
in and take such action as may be requested by TCG to comply with any such
rules, regulations, orders, decisions or directives. (b) Reseller shall use
best efforts to obtain and maintain in effect all such Authorizations as may
be required to permit Reseller to perform its obligations hereunder. (c) In the
event that TCG or Reseller is unable to obtain or maintain Authorizations, TCG
shall have the right to immediately terminate this Agreement and/or any or all
Service Supplements.
4.2.5. OTHER EVENTS OF TERMINATION. If at any time during the term,
all or any significant portion of the fiber optic or other facilities or
associated equipment or rights-of-way, easements, license or lands, or the
rights thereto, used to provide the Services shall be taken for any public or
quasi-public purpose by any lawful power or authority by the exercise of the
right of condemnation or eminent domain, TCG shall be entitled to terminate
this Agreement or the applicable portions hereof upon written notice to
Reseller. If at any time during the term all or any significant portion of the
fiber optic or other facilities or associated equipment used to provide the
Services shall, in TCG's judgment, become inoperable and beyond economically
or technologically feasible repair, TCG shall promptly inform Reseller thereof
in writing and TCG shall be entitled to terminate this Agreement or the
applicable portions hereof. In the event that such casualty is caused by the
willful misconduct or negligence of Reseller or Customer or by Reseller's
noncompliance with its obligations under this Agreement, then TCG may perform
such repairs at Reseller's expense.
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4.3 EVENTS OF DEFAULT. In addition to any other events of default set
forth in this Agreement, the following shall also constitute an event of
default hereunder: (i) the failure of Reseller to make any payments due
hereunder for a period of ten (10) days after written notice that the date such
payment is past due; (ii) the violation by either Party of any material term or
provision of this Agreement or the failure of either Party to perform any of
its material obligations hereunder for a period of thirty (30) days after
written notice and opportunity to cure; (iii) the misapplication or misuse, as
provided herein, by Reseller of TCG's Services for a period of thirty (30) days
after written notice and opportunity to cure; (iv) a consistently poor payment
record such that Reseller is in arrears in its payments hereunder for three (3)
or more consecutive months and Reseller fails to cure same within ten (10) days
following written notice there of by TCG; (v) any act pursuant to this
Agreement and use of the Services that violates applicable federal or state law
or regulation or other unlawful act; (vi) the failure of Reseller to abide by
the terms of Sections 5.1, 5.2 and 7.4 for a period of thirty (30) days after
written notice and opportunity to cure; or (vii) the willful or intentional
violation by Reseller of any term or provision of this Agreement which is not
cured within thirty (30) days after written notice thereof from TCG. A failure
under clause (i) shall not be an event of default if such failure follows a
bona fide dispute by such party regarding the applicable payment which such
party is working in good faith to resolve within thirty (30) days of the date
of TCG's notice or if such failure relates to charges for which the failing
party has requested backup data or verification which has not yet been received.
4.4 REMEDIES IN EVENT OF DEFAULT. Upon the occurrence of an event of
default as defined herein, TCG, may at its sole option elect one or more of the
following: (i) terminate this Agreement whereupon any amounts due by Reseller to
TCG under this Agreement, including TCG's capital expenditures in providing
Service to Reseller's Customers hereunder, for which Reseller is obligated
pursuant to Section 4.4.2., shall become immediately due; (ii) suspend and/or
terminate, pursuant to Section 4.4.1., all or any part of the applicable
Services, Service Supplements, this Agreement and/or cutover Customers' Service
to TCG; (iv) and/or (iii) pursue any other remedies as may be provided by law or
in equity. In the case of a default by TCG under 4.3., Reseller may terminate
the obligation of Reseller to resell exclusively TCG's services as provided in
Section 7.3. below, terminate this Agreement, terminate the applicable Service
Supplement and/or pursue any other remedies that may be available at law or in
equity. Following the expiration or a termination of this Agreement or the
Services for any reason, TCG agrees not to interrupt the telephone services then
being provided to Reseller's Customers, but instead to participate in an orderly
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transition of Reseller's Customers form TCG's Services to services provided by
Reseller or another provider or, in the case of termination due to Reseller's
default, to services provided by TCG directly as provided in Section 4.4.1.
Notwithstanding such termination, TCG shall continue to bill for, and Reseller
shall continue to be responsible for, all charges for Services provided by TCG
during such transition. Reseller shall use all commercially reasonable efforts
to hasten the transition of the affected Customers to services being provided by
Reseller, another provider or TCG directly as provided in Section 4.4.1. If
reasonable under the circumstances, TCG shall be entitled to demand that
Reseller establish a security deposit, letter of credit or other reasonable and
appropriate mechanism to ensure Reseller's ability to pay for the Services
provided by TCG during the transition period.
4.4.1. In the event (a) TCG terminates this Agreement or any Service
Supplement pursuant to Section 4.4 due to a bona fide default by Reseller, and
(b) TCG certifies by written notice to Reseller that applicable law prohibits
TCG from discontinuing the Services then being provided by TCG to Reseller's
Customers without cause so long as each customer is current in the payment for
its services, then Reseller, in its discretion, shall have a period (the
"Transition Period") of up to one hundred twenty (120) days from the date of
such notice to arrange for services comparable to the Services (or such
services as may be required to be provided under applicable law) to be
furnished by Reseller directly or another company. TCG and Reseller agree to
cause their representatives to meet as soon as possible to attempt to resolve
any disputes that may arise concerning TCG's certification. During the
Transition Period, TCG shall continue to provide the Services without
interruption, and Reseller shall continue to pay for the Services in accordance
with this Agreement, including without limitation Sections 4.4 and 6.15 hereof.
If Reseller has not arranged for the provision of services to its Customers,
comparable to the Services, to be furnished by Reseller or another company by
the expiration of the Transition Period and TCG has certified by written notice
to Reseller as described in clause (b) above, then, upon written request by
TCG, (1) Reseller shall send written notice to its Customers directing them to
make further payments for the Services directly to TCG, (2) Reseller shall
cooperate with TCG in the cutover of each Customer's Service to TCG, and (3)
TCG may enter into direct contracts with Reseller's Customers and bill such
Customers directly, with no compensation being due Reseller therefor. Reseller
shall:
(i) cooperate with TCG to enable TCG to bill and collect payment from
Customers for Services, especially including Resale Services;
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(ii) promptly release to TCG Customer billing, customer Service,
maintenance and repair records and any other records or information needed
by TCG to provide Service to and bill and collect payment from Customers for
Services, especially Resale Services;
(iii) cooperate with TCG to achieve, in TCG's sole discretion, a smooth
and orderly transfer of the Customer relationship and a cutover of Service
from Reseller to TCG or termination of Service to Customers;
(iv) use reasonable efforts to assign to TCG, at no cost or expense to
TCG, the benefit of any license agreements, leases, or other rights to enter
into the Building and place equipment and facilities therein and to provide
Services therein, and any other right necessary or desirable for TCG to
provide uninterrupted Service to Customers; and
(v) promptly release to TCG any and all records and tapes constituting,
evidencing, bearing upon or related to cable and pair numbers, and necessary
information concerning in house cable wiring, the Building cable management
system, and the equipment and facilities between the Point of Demarcation
and the Customers' Residences, and any other information necessary or
desirable for TCG to provide uninterrupted Service to Customers.
4.4.2. In the event that TCG constructs upon mutual agreement of
the parties additional network in order to reach the Point of Demarcation,
wherever located and such mutual agreement includes Reseller's agreement to
reimburse TCG for the cost of constructing such additional network, and in the
event that Reseller defaults hereunder, then Reseller shall reimburse TCG the
cost of constructing such additional network, to the extent that such cost has
not been recovered by TCG through payments from Reseller prior to such default,
which cost shall include but not limited to materials, equipment and facilities,
engineering and legal fees, employee time, consulting fees, subcontractors
costs, right of way acquisition, building entry fees, municipal, county or state
franchise or other related fees.
4.5. SPECIFIC PERFORMANCE. The parties shall have the right to enforce
the provisions of this Article 4 by obtaining an injunction or specific
performance from any court of competent jurisdiction. Additionally, if either
party willfully breaches any material term of this Article 4, whether or not
TCG exercises its option to terminate this Agreement, the other party shall be
entitled to recover reasonable attorneys' fees, costs and expenses in
redressing such breach. The provisions of this Section 4.5 shall survive
termination of this Agreement.
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4.6. ALTERNATIVE REMEDIES. The remedies set forth in this Article 4 are
cumulative and in addition to, and not in limitation of, other remedies
available at law or in equity. None of the remedies specified in this Article 4
for any default or breach of this Agreement shall be exclusive.
ARTICLE 5
MARKETING STANDARDS
5.1. TRADE NAMES AND TRADEMARKS. All trade names, trademarks and service
marks owned or employed by a Party or any subsidiary or affiliate of that Party,
used or employed in the Party's business operation, shall remain the sole and
exclusive property of that Party, or such subsidiary or affiliate, and such
trade names, trademarks and service marks shall not be used by the other Party
without the prior written consent of the Party or such subsidiary or affiliate.
Each Party shall immediately discontinue any unauthorized use of the other
Party's marks and names upon demand and shall discontinue all use of the other
party's marks and names upon termination hereof.
5.2. ADVERTISING. TCG shall establish standards for all advertising,
promotional, and Customer training materials used or distributed by Reseller
which both relate to the Services and refer to TCG. Reseller may refer to
itself as an authorized Reseller of TCG Services whenever it refers to the
Services in promotional, advertising, or other materials. In addition, Reseller
shall provide to TCG for its prior review and written approval which shall not
be unreasonably withheld or delayed, drafts of all promotional, advertising or
similar materials or activity (i) that refers to TCG, (ii) that TCG has not
approved, and (iii) using or displaying TCG's name or referring to Reseller as
an authorized distributor of TCG Services. Such review and standards will be
limited to factual matters pertaining to Services furnished by TCG and use of
TCG's marks and name. Reseller agrees to change or correct, at Reseller's
expense, any such material or activity which TCG, in its reasonable sole
judgment, determines to be inaccurate, misleading or otherwise objectionable.
5.3 MANAGERIAL TRAINING. If requested by Reseller, TCG shall provide
managerial, operational and customer service training, sales techniques and
marketing strategies regarding its Services at a TCG designated training
center. Such managerial training will be provided by TCG at Reseller's
cost. Such cost shall be mutually agreed-upon by the Parties.
5.3.1. If Reseller requests training at a location other than a TCG
designated training center, then the reasonable expenses for TCG's instructors,
Reseller's managerial and sales employees who obtain training hereunder shall
be paid by Reseller. Expenses
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shall include, but not be limited to: air fare (or other travel expense);
lodging; meals; local transportation to TCG's training site; and incidental
reasonable expenses.
5.4. CUSTOMER SERVICE. Reseller shall be responsible to take Customer
orders for service, disconnection, maintenance, repair, and to respond to
Customer calls. Reseller shall be the primary point of customer contact for all
Customer service ordering activities and repair calls. Reseller shall ensure
that its Customer Service Representatives ("CSRs") are trained and/or
experienced in customer service for telephone customers. Reseller's CSRs shall
be trained to accurately answer common customer questions such as the procedure
to take a telephone off call forwarding, the procedure to remove a telephone
from call block, etc. Reseller shall train the CSRs in troubleshooting in order
to minimize unnecessary repair or maintenance calls.
ARTICLE 6
OPERATING DUTIES OF THE PARTIES
6.1. CUSTOMER SUBSCRIPTION AND SERVICE. TCG shall provide and Reseller
shall use TCG's pre-printed service order forms and procedures to ensure the
timely and accurate implementation of new service requests. Such applications
shall then be forwarded by Reseller to TCG within no more than three (3)
Business Days after execution. In ordering the Services, Reseller agrees to
comply with all of TCG's customer service procedures regarding TCG's Services
hereunder.
6.2. RESELLER'S REPRESENTATIONS; CONTRACTS. Reseller shall make no
representations, warranties, promises understandings, or agreements concerning
TCG or TCG's Services not approved in advance by TCG. Reseller may represent
itself as a reseller of TCG's Services.
6.3. CONDUCT OF RESELLER. In performing this Agreement, each Party shall:
(a) conduct itself in an honest, professional, and ethical manner and
comply with all applicable statutes, ordinances, and regulations; and
(b) do nothing which would tend to discredit, dishonor, reflect adversely
upon or in any manner injure the reputation of the other Party; and
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(c) employ only personnel who they determine are fully qualified through
education and experience to perform their duties; and
(d) deal directly with, and only with those personnel designated by the
other Party personnel for all purposes and with regard to all matters that
arise hereunder. The subject personnel will be designated by each Party
upon the execution of this Agreement.
6.4 ACCESS TO SITE. As a condition of TCG providing Services hereunder,
Reseller shall arrange access by TCG to any of the rights-of-way, conduit and
equipment space, buildings and telephone rooms at the Point of Demarcation, the
Customer premises and in any other space so that TCG's authorized personnel,
employees, or agents may install, repair, maintain, inspect, replace or remove
any and all facilities and associated equipment provided by TCG for the sole
purpose of providing Services to Reseller at a Premises, or otherwise removing
TCG's facilities and/or equipment pursuant to this Agreement. Reseller
acknowledges that it may be necessary to provide such access on a twenty-four
(24) hour, seven (7) day a week basis.
6.5. PROVISION OF SAFE PLACE TO WORK. Reseller shall provide a safe place
to work which complies with all laws and regulations regarding the working
conditions along the rights-of-way and in the equipment space at the Point of
Demarcation, the Customer premises and in any other space, at which TCG
authorized personnel, employees, or agents may be installing, inspecting,
maintaining, replacing, repairing or removing fiber optic and electrical cable
or any other facilities or equipment.
6.6 PROVISION OF EQUIPMENT SPACE, CONDUIT, AND ELECTRICAL POWER.
Reseller shall provide the necessary equipment space, conduit, electrical power
and suitable environmental conditions required to provide the Services, as
specified by TCG, at the Point of Demarcation and/or in each Building and
Residence, as applicable, without charge or cost to TCG. Reseller shall bear
the risk of any loss or damage to TCG's facilities, equipment or wiring
located in any equipment space or conduit, Reseller facilities, Point at
Demarcation, MDU, Building or Residence in which Services are rendered,
including building laterals, except to the extent that such loss or damage is
caused by TCG's gross negligence or wilful misconduct. Reseller shall be
responsible for ensuring that the equipment, wiring, space and associated
facilities, conduit and rights-of-way are protected against fire, theft,
vandalism or other casualty, and that the use thereof complies with the
applicable laws, rules and regulations and with all applicable lease or other
contractual agreements.
6.7. MOVES, ADDS AND CHANGES. Upon receipt of written
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notice from Reseller, TCG will add, delete or change locations or features of
specific telephone lines or station equipment. TCG shall charge Reseller at its
current rates for such service.
6.8. RESELLER EQUIPMENT CAPABILITY. Subject to any applicable rules
and regulations of the FCC and any state public utilities commission or other
applicable regulatory agency or any state, county or municipal or
quasi-municipal body, Reseller hereby agrees that it will submit to TCG a
complete manufacturer's specification sheet for each item of equipment that is
not provided by TCG and which may be attached to TCG's facilities. TCG shall
have the right to disapprove the use of any such item of equipment if such item
is incompatible with TCG's facilities. Reseller represents and warrants that no
such equipment shall be incompatible with TCG's equipment.
6.9. RELATIONSHIP OF THE PARTIES. Upon agreement by Reseller to provide
Service to a Customer, the Customer shall become a customer of Reseller and not
TCG. Reseller shall provide said Service to such Customer and shall be
responsible for billing and collection of any associated deposits and charges
for such Service from the Customer, including third party collections. In the
event Customer payment is delinquent or becomes bad debt, Reseller shall remain
responsible for payment for Service until such time as the Customer is lawfully
disconnected or terminated. Requests by Reseller to TCG to disconnect or
otherwise limit Service to a Customer shall be in writing to TCG. Reseller
shall be solely responsible for notifying the Customer of the proposed
disconnection or limitation of Service. In the event Reseller subsequently
requests re-connection of a disconnected Customer, the installation charges set
forth in Schedule D will apply. Reseller shall not direct Customers to TCG for
Service ordering, repair, maintenance, moves, adds and changes, or otherwise.
6.10 OTHER CARRIERS. TCG shall have no responsibility with respect to
billing, charges or disputes related to services used by Reseller or Reseller's
Customer which are not included in the Services herein including, without
limitation, any local, regional and long distance services not offered by TCG.
Reseller shall be fully responsible for the payment of any bills for such
services, including, as applicable, third party billing, E911 and 911 and
Telecommunications Relay Services (TRS) as well as any other charges of a
similar nature, and for the resolution of any disputes or discrepancies with
the service provider.
6.11. RESELLER'S FURTHER RESPONSIBILITIES. Except as otherwise provided in
a Service Supplement, Reseller shall do the following:
(a) Provide customer service representative functions
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including first level trouble-shooting of Customer problems from the telephone
set and feature use to and including the subscriber line carrier, digital loop
carrier or access node (for MDUs), and associated DACS if applicable.
(b) Perform Customer billing and collection.
(c) Negotiate sales, take orders, analyze and design service proposals for
prospective Customers, and coordinate with TCG as appropriate and necessary.
(d) Provide access to intra-Building and inter-Building risers, conduit and
wiring in accordance with Section 6.4 and 6.6.
(e) Make only such representations concerning the functions, capabilities,
characteristics, design, installation date or availability of any TCG Service
as have been agreed upon by Reseller and TCG in Schedule A, B and C.
(f) Maintain documents, records and customer information supporting the
initial and ongoing sales of Services, or changes in Services.
(g) Cooperate fully in the collection, compilation and maintenance of data
required to be reported by TCG pursuant to any federal or state statute,
regulation or order.
(h) Immediately inform TCG in the event of any Service outage of which it is
aware. In addition, Reseller agrees that it shall give TCG immediate notice in
the event that a Customer reports an outage to Reseller. Reseller's failure to
provide such notice will not prejudice Reseller's rights herein.
(i) Not use the Services in any manner that is unlawful or that jeopardizes
TCG's authority to do business or its certification as a local exchange carrier
or equivalent.
(j) Reseller agrees to abide by the terms and conditions of the 9-1-1
Agreement attached as Schedule H, and incorporated herein by reference as if
the same were set forth herein in full at this place.
(k) Not to use TCG's facilities provided hereunder to provide video services.
(l) Not to use the Services provided hereunder to provide Service to
commercial customers, except as specifically permitted herein. Reseller
represents and warrants that it will provide Services only to Customers as
defined herein.
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(m) Provide to TCG a detailed forecast which will include, but shall not
be limited to, long distance and calling features. Forecast additional
projects with penetration rates and anticipated timing for turnup.
(n) Register a tariff with the relevant state Public Service Commission
(PSC) or Public Utility Commission (PUC), as required by law or regulation.
(o) Reseller shall not intentionally disturb or interfere with TCG's
equipment or facilities used in connection with TCG Services.
6.12 TCG RESPONSIBILITIES. Except as otherwise provided in a Service
Supplement, TCG shall do the following:
(a) Process Reseller's Service orders and maintenance requests in a prompt
and efficient manner.
(b) In accordance with TCG's applicable tariffs and Service Supplements,
install, maintain and support the Services as provided in this Agreement,
but TCG shall have no responsibility for or liability in connection with
any other services or products sold by Reseller.
(c) Provide Services that meet or exceed applicable telecommunications
industry standards.
6.13 Neither TCG or Reseller shall sell, lease, license or otherwise
transfer any compilation of telephone numbers, lists or databases, except as
expressly allowed and provided for herein.
6.14 NXX CODES. Subject to the availability of adequate capacity in TCG's
serving central office, Reseller may obtain from the appropriate code
administrator one or more central office ("NXX") codes from which DNs assigned
to Reseller's Customers are to be selected. In the event that Reseller elects
to obtain one or more such codes, TCG shall open the code(s) and permit the
code(s) to reside in TCG's central office at no charge to Reseller. Such
code(s) shall be used exclusively to serve Reseller's customers, and, provided
that numbers are available, DNs assigned to Reseller's Customers residing within
the rate center associated with any such code shall be drawn from the pool of
numbers within the code. Reseller shall be responsible for obtaining any such
codes. Neither TCG or Reseller shall sell, lease, license or otherwise transfer
any compilation of telephone numbers, lists or databases, except as expressly
allowed and provided for herein.
6.15 COOPERATIVE TRANSITION. In the event this Agreement is terminated
for any reason, including but not limited to the
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<PAGE> 23
occurrence of an act of default by Reseller, and upon any other discontinuation
of Services by TCG to any Premises, both Parties shall, in accordance with
Sections 4.4. and 4.4.1., exercise reasonable efforts to effect an efficient
and orderly transition that will enable either Reseller to itself provide or
retain another service provider to provide, or, as provided in Section 4.4.1,
for TCG to directly provide, without interruption or degradation, services that
are comparable to the Services then being furnished to Reseller's Customers
under this Agreement at all affected Premises. During any such transition, both
Parties shall continue to be bound by all provisions of this Agreement, except
for forecasting requirements and similar obligations that are rendered
unnecessary or superfluous. Furthermore, if requested by Reseller, TCG agrees
to provide, where available and as required by law, number portability
services, at Reseller's cost, as necessary to enable Reseller's Customers to
retain their assigned telephone numbers during and after such transition. TCG
shall port such numbers using such methods as prescribed by applicable law.
ARTICLE 7
LIABILITY AND INDEMNIFICATION
7.1 RESELLER AN INDEPENDENT CONTRACTOR. This Agreement designates
Reseller a non-exclusive independent contractor only and not TCG's general or
special agent and does not create a joint venture or confer any status, power
or authority upon Reseller other than as expressly set forth herein. The scope
of Reseller's authority is specifically limited to the minimum authority
necessary to perform the duties accepted pursuant to this Agreement and
Reseller shall, to the maximum extent not inconsistent with the provisions
hereof, control the means, details, manner and method of its performance
hereunder. Reseller shall make no representations as to the policies and
procedures of TCG other than as specifically authorized by TCG and shall be
liable for any misrepresentations made by Reseller with regard to the Services.
7.2 RESELLER'S EMPLOYEES. All persons employed by Reseller to perform
Reseller's duties under this Agreement are the employees and agents of Reseller
and are not employees or agents of TCG. Reseller shall be solely responsible
for the acts and omissions of its employees and agents and shall have sole
responsibility for their supervision, direction and control. Reseller shall
comply with all applicable laws regarding withholding and payment of all income
taxes, social security taxes, unemployment insurance and workmen's compensation
and disability benefits as well as those regarding equal employment
opportunities and safety of the work place insofar as such concerns the subject
matter hereof.
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7.3. RIGHT TO CONDUCT OTHER BUSINESS EXCLUSIVELY. This Agreement shall not
in any way limit TCG's power and right to contract with other Persons concerning
the subject matter hereof on such terms as TCG sees fit even though such
Persons, as a result, compete with Reseller. During the term of this Agreement,
and any applicable Service Supplement, Reseller shall resell TCG's Services
exclusively, excluding Resale Services, to any MDU or Building in which Reseller
provides local telecommunications services in the metropolitan areas in which
Reseller is providing TCG's Services to a Premises pursuant to this Agreement.
The preceding sentence shall not apply to any MDU or Building which is now or
hereafter subject to a telephone resale agreement with a LEC other than TCG
which existed when Reseller commenced providing its services to such MDU or
Building as the result of a merger or acquisition. In exchange for this
exclusive right, TCG shall not, during the term of this Agreement and any
applicable Service Supplement, knowingly sell any of its local
telecommunications services directly to Customers within the Premises except as
otherwise provided for in this Agreement under Section 4.4.1. Further, TCG
shall not knowingly sell any of its Services directly to any MDU listed in
Schedule I, attached hereto, for a period of twelve (12) months from the date
hereof. However, TCG shall have no liability to Reseller whatsoever if other
resellers or entities supplied by TCG compete with Reseller in the designated
areas set forth in Section 2.1. Reseller acknowledges and agrees that
designating TCG as its exclusive carrier is a material inducement to enter into
this Agreement. If TCG is unable to provide any of the Services pursuant to a
Service Supplement, which Services Reseller had previously forecasted in
Schedule E at least six (6) months prior to the desired service date, then
Reseller shall have the option of serving such MDU or Building using services of
another provider.
If Reseller in good faith determines that it is cost prohibitive to connect an
MDU or Building to the closest available point of connection to TCG's network
using Reseller's facilities or an extension of TCG's network or the use of
Resale Services exceeds $3.47 per DS-0, then Reseller shall notify TCG of same
and TCG shall waive Reseller's obligation to resell exclusively TCG's Services
with respect to the applicable MDU or Building. TCG shall respond to Reseller's
notice to TCG within ten (10) days, failing which TCG shall be deemed to have
elected to waive Reseller's obligation to resell exclusively TCG's Services to
such MDU or Building.
7.4. TCG EMPLOYEES. All persons employed by TCG to perform TCG's duties
under this Agreement are the employees and agents of TCG and are not employees
or agents of Reseller. TCG shall be solely responsible for the acts and
omissions of its employees and agents and shall have sole responsibility for
their
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supervision, direction and control. TCG shall comply with all applicable laws
regarding withholding and payment of all income taxes, social security taxes,
unemployment insurance and workmen's compensation and disability benefits as
well as those regarding equal employment opportunities and safety of the work
place insofar as such concerns the subject matter hereof.
The parties agree that the purpose and effect of this Agreement is to
increase competition in the telecommunication services market, and to
facilitate Reseller's entry thereto. To aid Reseller in such competition,
pursuant to Section 5.3 hereof, each party will obtain access to certain of the
other party's confidential information and trade secrets, including systems
procedures, customer relations practices, buying patterns and other information
acquired or developed by such party. Each party also will obtain access to the
other party's employees who have such information. Accordingly, a confidential
relationship will exist hereunder between TCG and Reseller. Each party thus
agrees that to use its position of confidence with the other to obtain such
other party's employees would be unfair. In view thereof, each party agrees that
for the term of this Agreement and for a period of one (1) year thereafter,
should such party hire any of the other party's employees, it will reimburse
such other party for the reasonable cost of recruiting and training replacement
employees estimated to be at least $25,000, and will not appropriate, either
directly or through said employees, such party's customer lists or other
confidential information not already known to the party.
7.4.1 Reseller agrees and stipulates that access to TCG's employees
enhances Reseller's ability to compete in the telecommunication services
market, that the provisions of this Section 7.4 are not designed to exclude,
and will not exclude, competition from the telecommunication services market,
and that said provisions are both reasonably necessary and the least
restrictive means for TCG to protect its legitimate interests in encouraging
more competition at the retail level.
7.5 INSURANCE. The parties shall, at their sole expense, be insured at
all times during the term of this Agreement under a comprehensive liability
insurance policy against claims for bodily and personal injury, death, and
property damage caused by or occurring in conjunction with the Parties'
activities hereunder. Such insurance coverage shall be maintained under one or
more policies of insurance issued by insurance companies qualified to do
business in the states where the parties perform their duties hereunder, and
shall be in amounts not less than One Million Dollars ($1,000,000) per
occurrence for bodily and personal injury and death, Five Hundred Thousand
Dollars ($500,000) per occurrence for property damage, and Five Hundred
Thousand Dollars ($500,000) per occurrence for general liability
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arising out of the respective Parties' conduct hereunder. The Parties shall
also provide endorsements for contractual liability. Each Party shall provide
to the other Party not less than thirty (30) days prior written notice of any
modification, cancellation, or non-renewal thereof.
7.6 INDEMNIFICATION.
(a) Reseller will indemnify and hold harmless TCG, its Affiliates and all
officers, directors, employees, stockholders, partners and agents of TCG from
and against any and all claims, actions, damages, losses, liabilities,
penalties and expenses (collectively "Losses") occasioned by:
(i) The installation, maintenance or operation of Reseller's provided
equipment;
(ii) Any material breach by Reseller of any obligation or covenant under
this Agreement;
(iii) Any failure of any material representation or warranty made by
Reseller herein to be true in any material respect as of the date made or
deemed made;
(iv) Losses of third parties, including patrons or Customers of Reseller,
arising out of, resulting from, or related to use, misuse of the Services, or
arising from, or related to the installation, maintenance or repair of
equipment and facilities on Reseller's or Customer's side of the Point of
Demarcation;
(v) Losses for libel, slander, invasion of privacy, or infringement of
copyright or trademark arising from any communication using the Services;
(vi) Losses for patent infringement arising from Reseller's combining or
using the fiber optic facilities and equipment furnished pursuant to this
Agreement in connection or in combination with facilities or equipment not
furnished by TCG; and
(vii) All other Losses arising out of any act or omission of Reseller, or
Customers or patrons of Reseller, in connection with the Services made available
to Reseller pursuant to this Agreement.
(b) TCG will indemnify and hold harmless Reseller, its Affiliates and all
officers, directors, employees, stockholders, partners and agents of TCG from
and against any and all claims, actions, damages, losses, liabilities,
penalties and expenses (collectively "Losses") occasioned by:
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(i) The installation, maintenance or operation of TCG's provided
equipment;
(ii) Any material breach by TCG of any obligation or covenant under this
Agreement;
(iii) Any failure of any material representation or warranty made by TCG
herein to be true in any material respect as of the date made or deemed made;
(c) Reseller and TCG agree to defend and hold the other harmless against
any such Losses and to pay, without limitation, all litigation costs, expenses,
reasonable attorney's fees and court costs, settlement payments, and any
damages awarded or resulting from any such Losses.
7.7 SURVIVAL. The provisions of this Section 7 shall survive the
termination of this Agreement.
7.8 QUALITY OF SERVICE. TCG will make every reasonable effort to provide
continuous and uninterrupted Service hereunder in accordance with generally
applicable industry standards and shall provide such Service in accordance with
the standards set forth in the Service Level Program attached in Schedule G;
provided, however,
EXCEPT FOR ANY EXPRESS WARRANTIES STATED IN THIS AGREEMENT, TCG DISCLAIMS
ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS AND OF FITNESS FOR A PARTICULAR PURPOSE,
WHETHER SUCH WARRANTIES ARE MADE BEFORE OR AFTER THE EXECUTION HEREOF. THE
CREDIT ALLOWANCES PROVIDED FOR HEREIN ARE IN LIEU OF ALL OBLIGATIONS OR
LIABILITIES ON THE PART OF TCG FOR DAMAGES INCLUDING, BUT NOT LIMITED TO,
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE USE OR PERFORMANCE OF TCG'S SERVICE. IN NO EVENT SHALL TCG BE
LIABLE TO RESELLER OR CUSTOMER FOR SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF TCG'S PERFORMANCE UNDER THIS AGREEMENT. IT IS
EXPRESSLY UNDERSTOOD THAT THE SOLE REMEDY OF RESELLER OR CUSTOMER FOR
BREACH OF THIS AGREEMENT BY TCG OR FOR ANY DAMAGE TO RESELLER OR OTHER
PERSONS CLAIMED TO HAVE RESULTED FROM RESELLER'S RESALE TO TCG'S SERVICES
HEREUNDER OR FROM THE USE OF TCG'S SERVICE IS CREDITS FOR SERVICE OUTAGES.
7.9 CREDIT ALLOWANCES. A per Directory Number credit allowance, as set
forth below, will be given upon the written request of Reseller for any person
during which any Directory Number subscribed to hereunder and/or, if
applicable, TCG provided station equipment attached thereto experiences a
Service
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Outage, except as specified below. A "Service Outage" is defined as a failure of
any TCG service component that results in distortion, delay, noise, loss of
signal, or other defect in transmission that materially diminishes the quality
of service below generally accepted standards, or in a complete loss of call
origination and/or receipt capability. Credit allowances, if any, shall be
deducted from the charges payable hereunder and shall be expressly indicated on
the next bill to Reseller. A Service Outage begins when Reseller reports such
condition to TCG or TCG discovers same. A Service Outage ends when the Service
is restored.
(a) Credit Allowances do not apply to Service Outages (i) caused or
contributed to by Reseller, Customer or any other LEC, IXC, carrier or
service provider or other third party; (ii) due to failure of power or
equipment not provided by TCG; (iii) during any period in which TCG is not
given access to the areas required to be provided by Reseller as stated in
Section 2.10 and Section 6.4, the Building or Residence; and (iv) failures
resulting from the activities or negligence of other telecommunications
carriers or service providers; (v) failure of facilities or equipment of
third party telecommunications carriers or service providers carrying
Customers traffic; and (vi) due to scheduled maintenance and repair, agreed
to in advance by the Parties.
(b) Service Outages of twenty-four (24) Hours or Less for Services. TCG
shall grant Reseller credit for Service Outages of twenty-four (24) hours
or less, contingent upon the condition stated in the preceding paragraph
according to the following schedule:
<TABLE>
<CAPTION>
Length of Service Outage Credit (Recurring Charge)
- ------------------------ ------
<S> <C>
Less than 30 min None
30 min - 2 hr 59 min 1/10 of a day
3 hr - 5 hr 59 min 1/5 of a day
6 hr - 8 hr 59 min 2/5 of a day
9 hr - 11 hr 59 min 3/5 of a day
12 hr - 14 hr 59 min 4/5 of a day
15 hr - 23 hr 59 min One day
</TABLE>
Two or more Service Outages of the same type to the same line/equipment of
two (2) hours or more during any one twenty-four (24) hour period shall be
treated as one interruption. In no event shall such credits for any one
line/equipment exceed one day's fixed recurring charges for such
line/equipment in any twenty-four (24) hour period.
(c) Service Outages Over twenty-four (24) Hours. For Service Outages of
greater that twenty-four (24) hours, TCG will
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grant Reseller a credit of 1/5 day for each three (3) hour period or
fraction thereof. No more than twenty-four (24) hours credit will be
allowed in any twenty-four (24) hour period.
7.10. LIMITATION OF LIABILITY.
(a) Liability for Service Outages. To the extent that all or part or any
portion of the Services are unavailable, interrupted, degraded or
otherwise unsatisfactory for any reason, TCG's sole and exclusive
responsibility and liability shall be to grant credit as set forth in this
Article 7.
(b) Liability for Damages to Property. TCG shall not be liable for any
damages whatsoever to property resulting from the installation,
maintenance, repair or removal of equipment and associated wiring unless
and only to the extent that the damage is caused by TCG's willful
misconduct or gross negligence.
(c) Liability for Services and Equipment Not Provided by TCG. TCG shall
not be liable for any damages whatsoever associated with service,
facilities, or equipment which is not furnished by TCG or for any act or
omission of any other entity furnishing service facilities or equipment
used for or in conjunction with the Services.
(d) Liability for Negligence or Fault of Reseller. TCG shall not be liable
for any interruptions or damages or losses due to the fault or negligence
of Reseller or Reseller provided equipment.
(e) Liability for Force Majeure Events. Neither Party shall be liable for
any damages whatsoever associated with service, facilities or equipment or
for any failure of performance due to causes beyond its control, including
but not limited to: acts of God, fire, flood or other catastrophes; any
law, order regulation, direction, action or request of the United States
Government, or of any other government, including state and local
governments having or claiming jurisdiction over the other Party or of any
department, agency, commission, bureau, corporation, or other
instrumentality of any federal, state, or local government, or of any
civil or military authority; national emergencies; unavailability of
materials or rights-of-way; insurrections; riots; wars; or strikes,
lock-outs, work stoppages, or other labor difficulties.
(i) Notwithstanding the foregoing provisions, in every case the delay
or failure to perform must be beyond the control and without the
fault or negligence of the
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Party claiming excusable delay.
(ii) Performance times under this Agreement shall be considered
extended for a period of time equivalent to the time lost because of
any delay or failure to perform which is excusable hereunder;
provided, however, that if any such delay or failure shall, in the
aggregate, last for a period of more than thirty (30) days, the Party
not relying on the excusable delay or failure, at its option, may
terminate this Agreement.
(f) No Special Damages. Notwithstanding any other provision herein, in no
event shall either Party be liable for special, consequential, exemplary,
or punitive damages, including lost profits and lost revenue, as a result
of its performance or nonperformance of this Agreement.
7.11. TAXES/SURCHARGES. Reseller shall be solely responsible to collect
and pay all applicable local, state and federal taxes, including sales and uses
taxes, excise, access, bypass or other local, state and federal taxes or charges
imposed based upon the provision, sales or use of the Services provided
hereunder or on the sale of third party billing. Reseller also shall pay any
applicable gross receipts taxes with regard to said Services, including
surcharges. Where applicable, such taxes will be billed by TCG to Reseller and
will be separately stated on Reseller's invoice; provided, however, that TCG
will not bill to Reseller such taxes as may be exempted by a tax exemption or
resale certificate for operations in any state for which Reseller obtains such a
certificate. Reseller shall also be solely responsible for the collection of any
applicable surcharges, fees or other charges impose by any regulatory agency or
court or other governmental or quasi governmental authority, including, but not
limited to, a surcharge for the provision of 911/E911 service, and shall remit
same to TCG for payment by TCG to the applicable governmental authority.
ARTICLE 8
CONFIDENTIALITY
8.1. PROPRIETARY INFORMATION. During the term of this Agreement and for a
period of three (3) years thereafter, the Parties shall retain in confidence,
and shall require their directors, officers, employees, consultants,
representatives and agents to retain, in confidence, any and all Proprietary
Information. The Parties agree that the "Proprietary Information" constitutes
trade secrets of the applicable Party and that the disclosure thereof in
contravention of this Agreement would constitute an unfair trade practice.
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8.1.1. The Parties shall take effective precautions, contractual and
otherwise, reasonably calculated to prevent unauthorized disclosure or misuse
of Proprietary Information by any of their employees or by any other person
having access to such information.
8.1.2. Proprietary Information shall not be deemed to include
information which is:
(a) already known to the recipient;
(b) publicly known (or becomes publicly known) without the fault or
negligence of the recipient;
(c) received from a third party without restriction and without breach
of this Agreement;
(d) independently developed by the recipient;
(e) furnished to a third party by the Party without a similar restriction
on the third party's rights or approved for release by written
authorization of that Party; or
(f) required to be disclosed by law; provided, however, that in the event
of a proposed disclosure pursuant to this Section 8.1.2. (g), the
Disclosing Party shall give the other Party not less than ten (10) days
prior written notice before such disclosure is made.
8.2 DELIVERY OF DOCUMENTS. Subject to the provisions of Article 5
hereof, all documents, manuals and other written information which constitutes
Proprietary Information given to or purchased by a Party during the term of this
Agreement shall remain the sole and exclusive property of the producing Party.
Within ten (10) business days after termination of this Agreement, the receiving
Party shall return to the producing Party (without retaining copies thereof) any
and all Proprietary Information obtained from the producing Party in connection
with the transactions contemplated by this Agreement.
8.3 DISCLOSURE OF TERMS OF AGREEMENT. Neither Party hereto shall
disclose the terms and conditions of this Agreement to any Person or entity
without the prior written consent of the other Party or as required by law.
ARTICLE 9
MISCELLANEOUS
9.1 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective heirs, executors,
administrators, legal
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representatives, successors, and assigns; provided, however, that neither
party may assign or otherwise transfer its rights, or delegate its duties
hereunder, except with the other party's prior written consent. Notwithstanding
the above, either Party may, without the other's consent, assign any rights,
privileges, or obligations under this Agreement to:
(a) any subsidiary, affiliate or parent company; or
(b) any firm, corporation, or entity which such Party controls, is
controlled by, or is under common control with; or
(c) any partnership in which it has a majority interest; or
(d) to any entity which succeeds to all or substantially all of its assets
whether by merger, sale or otherwise.
9.2. NOTICES. All notices pursuant to this Agreement shall be in writing
and shall be sent by overnight mail.
If to TCG: TCG
(at an address indicated on each Service
Supplement)
and a copy to: Teleport Communications Group Inc.
One Teleport Drive, Suite 301
Staten Island, New York 10311
Attn: General Counsel
If to Reseller: TVMax Telecommunications, Inc.
1111 W. Mockingbird Lane, Suite 1000
Dallas, Texas 75247
Attn: Vice President - Engineering
and copy to: TVMax Telecommunications, Inc.
1111 W. Mockingbird Lane, Suite 1000
Dallas, Texas 75247
Attn: Vice President - Legal Dept.
9.3. INTEGRATION. This Agreement represents the entire agreement and
understanding between TCG and Reseller as to the subject matter hereof. No
waiver, alteration, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by duly authorized representative
of the Party against which enforcement of such waiver, alteration, or
modification is sought.
9.4. SAVINGS CLAUSE. If any term, covenant, condition of this Agreement
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not
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be affected thereby and each term, covenant, or condition of the Agreement shall
be valid and be enforced to the fullest extent permitted by law.
9.4.1. All obligations and duties which by their nature extend beyond the
expiration or termination of this Agreement shall survive and remain in effect
beyond any expiration or termination.
9.5. APPLICABLE LAW. This Agreement shall be governed by the laws of the
state in which the Services are provided.
9.6. REGULATORY APPROVAL. This Agreement shall be subject to and governed
by any applicable state and federal regulatory agencies having jurisdiction
over the subject matter hereof. Should any approval or authority be required
for any acts, duties or obligations to be performed hereunder, the Parties will
cooperate in securing the same.
9.7. TITLE. Except as to its use for the Services, neither Party shall
have, nor shall it assert, any right, title or interest in any of the fiber
optic or other facilities and associated equipment provided by the other Party.
9.8. AUTHORITY TO CONTRACT. The parties warrant that they have full
authority to enter into this Agreement and that such action has been duly
authorized in accordance with their respective articles of incorporation,
by-laws or other applicable organizational documents and procedures. The
individuals executing this Agreement on behalf of the Parties further warrant
that they have the full power and authority to bind their respective entities
to the terms hereof and have been duly authorized to do so in accordance with
their respective corporate or other organizational documents and procedures.
9.9. CAPTIONS; SECTIONS. Captions contained herein are inserted only as a
matter of convenience and in no way define, limit, or extend the scope or
intent of any provision hereof. Use of the term "Article" shall include the
entire subject Article and all its subsections where the context requires. Use
of the term "Section" shall include the entire subject Section and all its
subsections where the context requires.
9.10. INDEPENDENT BUSINESS JUDGMENT. That Parties hereby acknowledge and
agree that they are independent businesses sufficiently sophisticated to
exercise and are exercising their own business judgment. The Parties hereby
further acknowledge and agree that the Parties have made no recommendations or
representations regarding any aspect of the other Party's business including,
but not limited to, any representations with regard to such Party's profits
therefrom.
9.11. WAIVER. Failure or delay on the part of either Party to exercise any
right, power or privilege hereunder shall not
33
<PAGE> 34
operate as a waiver thereof. A waiver of one obligation hereunder shall not
operate as a waiver of any other obligation. Waiver by TCG or Reseller of a
breach of any provision of this Agreement by the other Party shall not operate
or be construed as a waiver of any subsequent breach by the other Party.
9.12. EXECUTION. This Agreement may be executed in counterparts and each
of such counterparts shall, for all purposes, be deemed to be an original but
altogether only one (1) Agreement.
9.13. EFFECTIVENESS. RESELLER MAY NOT ORDER SERVICE UNDER THIS AGREEMENT
UNTIL RESELLER AND TCG SHALL HAVE FIRST ENTERED INTO AN AGREEMENT FOR THE
PROVISION OF 9-1-1/E-9-1-1 SERVICE SUBSTANTIALLY IN THE FORM ATTACHED AS
SCHEDULE H. THIS AGREEMENT IS VOIDABLE BY TCG IN ITS SOLE DISCRETION FOR
FAILURE OF THE PARTIES TO SO ENTER INTO A 9-1-1/E-9-1-1 SERVICE AGREEMENT.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
TELEPORT COMMUNICATIONS TVMAX TELECOMMUNICATIONS,
GROUP INC. INC.
By: By: /s/ THOMAS P. WATS
-------------------------- ----------------------------
Title: Title: VP Eng/IT
----------------------- -------------------------
Date: Date: 29 May 1998
------------------------ --------------------------
Approved as to form
Legal Department
Dated: May 14, 1998 - GC
34
<PAGE> 35
CUSTOMIZED SERVICES AGREEMENT DATE: 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE A - LISTING OF SWITCHED TELECOMMUNICATIONS SERVICES
I. ORDER ENTRY, PROVISIONING AND MOVES, ADDS AND CHANGES (MAC)
II. LOCAL BASIC SERVICE -
A. Directory Number (DN) - the Telephone Number (NPA-NXX-xxxx)
B. Dial Tone with Tone Dialing (DTMF Dialing)
C. Voice Grade Local Service - Origination and termination using the
TCG Network
D. Access to:
1) Emergency Services including 911/E-911;
2) Local and Interexchange Operator Services;
3) Local and Interexchange Directory Assistance Services; and
4) IntraLATA, InterLATA and International Calling Services.
E. Blocking/Unblocking Options (at the option of Optel):
(1) Block/Unblock International (01);
(2) Block/Unblock International (011);
(3) Block/Unblock Alaska, Canada, Caribbean, Hawaii and/or
Mexico;
(4) Block/Unblock Toll;
(5) Block/Unblock Directory Assistance;
(6) Block/Unblock Operator Assistance;
(7) Block/Unblock 900, 976, and/or 900-like exchanges.
(8) Block/Unblock Collect Calls
(9) block/Unblock Third Party Calls
F. Calling Record File Format - See Schedule G.
III. BASIC CALLING FEATURES - See Schedule B for listing and definitions, see
Schedule D for pricing.
IV. ENHANCED CALLING FEATURES - See Schedule B for listing and definitions,
see Schedule D for pricing.
V. VALUE ADDED CALLING FEATURES - See Schedule B for listing and definitions,
see Schedule D for pricing.
VI. ANCILLARY SERVICES/CLEC SERVICES -
1. 911/E911
2. Local Operator Assistance (OA)
3. Local Directory Assistance (DA)
4. Private Branding of Local Operator Assistance and Local Directory
Assistance
1
<PAGE> 36
CUSTOMIZED SERVICES AGREEMENT DATE: 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE A - LISTING OF SWITCHED TELECOMMUNICATIONS SERVICES
VI. ANCILLARY SERVICES/CLEC SERVICES (CONTINUED)
5. Directory Listings
6. Directory Listing Coordination
7. Directory Distribution
8. LIDB Management
9. CARE Management
10. CLEC to CLEC Trunking
11. CLEC to ICO Trunking
12. Choke Point Trunking
13. IXC Carrier Meet Point Trunking
14. Intercept and Referral Announcements
VII. OTHER NETWORK FACILITIES OR ELEMENTS
VIII. USAGE/MOU RATES - Local, extended local, intraLATA toll.
IX. CUSTOMER SERVICE CENTER INQUIRY AND TROUBLE CALLS
X. PRICING PROGRAMS
XI. OTHER
2
<PAGE> 37
CUSTOMIZED SERVICES AGREEMENT DATE: 5/28/98
BETWEEN TCG AND OPTEL
SCHEDULE B - CALLING FEATURES AND DEFINITIONS
I. CALLING FEATURES
A) BASIC CALLING FEATURES ALL SWITCHES
1. CALL FORWARDING BUSY
2. CALL FORWARDING DON'T ANSWER
3. CALL FORWARDING VARIABLE
4. CALL FORWARDING BUSY FOR VOICE MAIL
5. CALL FORWARDING DON'T ANSWER FOR VOICE MAIL
6. CALL FORWARDING ON CALL WAITING FOR VOICE MAIL
7. CALL WAITING
8. CANCEL CALL WAITING
9. SPEED CALLING - 8 NUMBERS -
10. SPEED CALLING - 30 NUMBERS
11. MULTI DISTINCTIVE RINGING
12. THREE WAY CALLING
13. STUTTER DIAL TONE FOR VOICE MAIL
14. VISUAL MESSAGE WAITING FOR VOICE MAIL
ENHANCED CALLING FEATURES
1. RETURN CALL (*69)
2. CALLING NUMBER DELIVERY (CALLER ID)
3. CALLING NUMBER DELIVERY BLOCK (*67)
4. CUSTOMER ORIGINATED CALL TRACE (*57)
5. PER LINE BLOCK (LINE NUMBER BLOCK in definitions)
6. REPEAT DIALING (*66)
7. SELECTIVE CALL ACCEPTANCE
8. SELECTIVE CALL FORWARDING (*63)
9. SELECTIVE CALL REJECTION (*60)
10. SELECTIVE DISTINCTIVE ALERT (*61)
11. RETURN CALL, 2ND LEVEL ACTIVATION
12. CALLING NAME DELIVERY
13. CALL WAITING I.D. - AFTER CALL WAITING
14. LINE NUMBER UNBLOCK (UNBLOCK)(*82)
15. LONG DISTANCE ALERT (*49)
16. NON-RETURN OF PRIVATE CALLS
17. REMOTE ACTIVATION OF CALL FORWARDING
18. UNIDENTIFIED CALL REJECTION (*77)
VALUE ADDED CALLING FEATURES
1. VOICE MAIL - "Basic Call Answering" - COS 100
2. VOICE MAIL - "Extended Call Answering" - COS 200
3. VOICE MAIL - "Deluxe Call Answering" - COS 300
4. VOICE MAIL - "Deluxe Multi Call Answering" - COS 400
II. BASIC, ENHANCED AND VALUE ADDED CALLING FEATURE DEFINITIONS
<PAGE> 38
CUSTOMIZED SERVICES AGREEMENT DATE: 5/28/98
BETWEEN TCG AND OPTEL
SCHEDULE B - CALLING FEATURES AND DEFINITIONS
This list of definitions has been compiled from information from TCG's switch
vendors, Lucent and Nortel. The list is intended to give the Reseller a brief
overview of the feature. The words "subscriber" or "end-user" refer to the
person using the comcast end-user services.
CALL FORWARDING BUSY -
A form of call forwarding by which a subscriber programs his or her
telephone so that incoming calls are forwarded to another telephone number
if the called number is already on line with another call.
CALL FORWARDING DON'T ANSWER -
A form of call forwarding by which a subscriber programs his or her
telephone so that incoming calls are forwarded to another telephone number
if the called number does not answer in a predetermined number of rings.
CALL FORWARDING VARIABLE -
Allows a subscriber to program his or her telephone so that incoming calls
are forwarded to another telephone number.
CALL FORWARDING BUSY FOR VOICE MAIL -
A form of call forwarding by which a subscriber programs his or her
telephone so that incoming calls are forwarded to a voice mail box if the
called number is already on line with another call thus indicating a busy
signal.
CALL FORWARDING DON'T ANSWER FOR VOICE MAIL -
A form of call forwarding by which a subscriber programs his or her
telephone so that incoming calls are forwarded to a voice mail box if the
called number does not answer in a predetermined number of rings.
CALL FORWARDING ON CALL WAITING FOR VOICE MAIL -
Allows a subscriber to program her telephone so that incoming calls, not
answered using the Call Waiting feature, are forwarded to a voice mail
box.
CALL WAITING -
The subscriber, already involved in a call, receives a tone that
another incoming call is waiting to be answered. The called party,
hearing the call-waiting tone during the existing conversation, can
choose to flash the hookswitch and connect to the incoming call.
CANCEL CALL WAITING (*70) -
2
<PAGE> 39
CUSTOMIZED SERVICES AGREEMENT DATE: 5/28/98
BETWEEN TCG AND OPTEL
SCHEDULE B - CALLING FEATURES AND DEFINITIONS
The subscriber enters a code to disable the Call Waiting feature so that he
receives no tone during a conversation with another party.
CALL WAITING I.D. -
Allows the called party to see the number of an incoming call while on with
another call.
CALLING NAME DELIVERY -
Allows the called party to see the name of the calling party.
CALLING NUMBER DELIVERY (CALLER ID) -
Allows the called party to see the telephone number of the calling party.
CALLING NUMBER DELIVERY BLOCK (*67) -
Allows the party placing a call to block his or her number from being sent
to the called party. This feature needs to be activated before each call by
dialing *67.
CUSTOMER ORIGINATED CALL TRACE (*57) -
Allows a subscriber to initiated a trace on an incoming "nuisance" call by
dialing *57.
LINE NUMBER UNBLOCK (*82 UNBLOCK) -
Allows the party placing an outgoing call, who to have his or her telephone
number sent. This feature needs to be activated before the call is placed
by dialing *82.
LONG DISTANCE ALERT -
Alerts the subscriber to an incoming long distance call. This is done
through a distinctive ring when the subscriber's telephone is not being
used and through a distinctive tone when a telephone is off-hook with a
call in progress.
MULTI DISTINCTIVE RINGING -
Allows more than one directory number to terminate on a telephone line and
telephone set. Each directory number has a distinctive ringing sequence.
NON-RETURN OF PRIVATE CALLS -
Prevents a subscriber from activating Return Call.
PER LINE BLOCK (LINE NUMBER BLOCK) -
Allows the party placing outgoing calls to always block his or her
telephone line number from being sent. (Need to use the *82 Unblock feature
to unblock, i.e., allowing the system to send the caller's number for the
called party).
3
<PAGE> 40
CUSTOMIZED SERVICES AGREEMENT DATE: 5/28/98
BETWEEN TCG AND OPTEL
SCHEDULE B - CALLING FEATURES AND DEFINITIONS
REMOTE ACTIVATION CALL FORWARDING -
Allows a subscriber to call forward his or her directory number to another
directory number from a remote location.
REPEAT DIALING (*66) -
Allows a subscriber to continually redial the last number he or she
originates despite whether the original call was completed or not by
dialing *66.
RETURN CALL (*69)
Allows the subscriber to make an outgoing call to the last number that
called the subscriber by dialing *69.
RETURN CALL, SECOND LEVEL ACTIVATION -
This feature is an enhancement to Return Call. The subscriber hears an
audible announcement of the last number that called. He/she may then call
the number.
SELECTIVE CALL ACCEPTANCE -
Allows the subscriber to create a list of telephone numbers. Incoming calls
from these numbers are accepted. All other calls are forwarded to an
announcement.
SELECTIVE CALL FORWARDING (*63) -
Allows a subscriber to establish a list of telephone numbers. Incoming
calls from these numbers may be forwarded to another number by dialing *63
instead of being completed at the subscriber's telephone number. All other
calls are completed as usual.
SELECTIVE CALL REJECTION (*60) -
Allows the subscriber to create a list of telephone numbers. Incoming calls
from these numbers are forwarded to an announcement by dialing *60. All
other calls are accepted.
SELECTIVE DISTINCTIVE ALERT (*61) -
Allows a subscriber to create a list of telephone numbers. Incoming calls
from these telephone numbers ring in a distinctive sequence.
SPEED CALLING 8 NUMBERS -
Allows a subscriber to preprogram up to eight telephone numbers and then
access these with the simple touch of one digit on his or her telephone
set.
SPEED CALLING 30 NUMBERS -
4
<PAGE> 41
CUSTOMIZED SERVICES AGREEMENT DATE: 5/28/98
BETWEEN TCG AND OPTEL
SCHEDULE B - CALLING FEATURES AND DEFINITIONS
Allows a subscriber to preprogram up to thirty telephone numbers and then
access these with the simple touch of two digits on his or her telephone
set.
THREE WAY CALLING -
Allows a subscriber to conference in a third person to an existing call so
all three people can speak together in the same conversation.
UNIDENTIFIED CALL REJECTION -
Allows a subscriber to block incoming calls from callers who have marked
their calls "private."
VALUE ADDED FEATURES
VOICE MAIL - "Basic Call Answering - COS 100
Allows a subscriber to have unanswered incoming calls stored as audible
messages that he or she can retrieve at a later time either locally or from
a remote location. TCG "Basic - Residential" includes fifteen (15) message
storage, two (2) minute maximum message length, one (1) minute greeting
length, fourteen (14) day message retention, Message Waiting, Call
Forwarding Busy, and Call Forwarding Don't Answer.
VOICE MAIL - Extended Call Answering - COS 200
Allows a subscriber to have unanswered incoming calls stored as audible
messages that he or she can retrieve at a later time either locally or from
a remote location. TCG "Extended Call Answering - COS 200" includes thirty
(30) message storage, four (4) minute maximum message length, one and one
half (1.5) minute greeting length, thirty-one (31) day message retention,
Message Waiting, Call Forwarding Busy, and Call Forwarding Don't Answer.
VOICE MAIL - Deluxe Call Answering - COS 300
Allows a subscriber to have unanswered incoming calls stored as audible
messages that he or she can retrieve at a later time either locally or from
a remote location. TCG "Deluxe Call Answering - COS 300" includes
forty-five (45) message storage, four (4) minute maximum message length,
two (2) minute greeting length, thirty-one (31) day message retention,
Message Waiting, Call Forwarding Busy, and Call Forwarding Don't Answer,
Paging and Reminders.
VOICE MAIL - Deluxe Multi Call Answering - COS 400
Allows a subscriber to have unanswered incoming calls stored as audible
messages that he or she can retrieve at a later time either locally or from
a remote location. TCG "Deluxe Multi Call Answering - COS 400" includes
forty-five (45) message storage, four (4) minute maximum message length,
two (2) minute greeting length, thirty-one (31) day
5
<PAGE> 42
CUSTOMIZED SERVICES AGREEMENT DATE: 5/28/98
BETWEEN TCG AND OPTEL
SCHEDULE B - CALLING FEATURES AND DEFINITIONS
message retention, Message Waiting, Call Forwarding Busy, and Call
Forwarding Don't Answer, Paging, Reminders and Sub-Mail Boxes.
STUTTER DIAL TONE for Voice Mail -
Triggered by the integrated Voice Mail system, the subscriber hears an
interrupted dial tone when picking up the handset indicating a message is
waiting in his or her Voice Mail box. This feature is used when the
telephone set does not have a message waiting lamp or when the remote
digital loop carrier does not support a message waiting lamp.
VISUAL MESSAGE WAITING for Voice Mail -
Triggered by the integrated Voice Mail system, this feature lights a lamp
on the subscriber's "message waiting ready" telephone set when the digital
loop carrier supports a message waiting lamp in a TCG "standard DLC/CB
configuration."
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
FEATURE BASIC CALL EXTENDED DELUXE CALL DELUXE -
ANSWERING CALL ANSWERING MULTI CALL
ANSWERING ANSWERING
COS 100 COS 200 COS 300 COS 400
=============================================================================================
<S> <C> <C> <C> <C>
MESSAGES STORED 15 30 45 45
=============================================================================================
MESSAGE LENGTH 2 minutes 4 minutes 5 minutes 5 minutes
=============================================================================================
GREETING LENGTH 1 minute 1.5 minute 2 minutes 2 minutes
=============================================================================================
MESSAGE RETENTION 14 days 31 days 31 days 31 days
=============================================================================================
MESSAGE WAITING Provided Provided Provided Provided
=============================================================================================
CALL FORWARDING Provided Provided Provided Provided
BUSY / NO ANSWER
=============================================================================================
PAGING ---- ---- Provided* Provided*
=============================================================================================
SUB MAIL BOXES ---- ---- ---- Provided
=============================================================================================
REMINDER One One One One
- ---------------------------------------------------------------------------------------------
</TABLE>
* Paging: This features's slightly higher cost includes the cost of the
out going calls for paging.
6
<PAGE> 43
<TABLE>
<CAPTION>
<S> <C> <C>
CUSTOMIZED SERVICES AGREEMENT
BETWEEN TCG __________ AND OPTEL
SCHEDULE C - SERVICE SUPPLEMENT # ______________ PAGE 1 OF 3
- -----------------------------------------------------------------------------------------------------------------------------------
CUSTOMER BILLING INFORMATION
===================================================================================================================================
Company Name: Contact Name:
- -----------------------------------------------------------------------------------------------------------------------------------
Address 1: Phone Number:
- -----------------------------------------------------------------------------------------------------------------------------------
Address 2: Pager: Fax:
- -----------------------------------------------------------------------------------------------------------------------------------
City/State/Zip: Purchase Order Number (PON):
===================================================================================================================================
SERVICE INFORMATION
===================================================================================================================================
Requested Service Date (MM/DD/YY): _ _/ _ _/ _ _ Numbers [ ] TCG's NPA - NXXs [ ] Reseller's NPA - NXXs
- -----------------------------------------------------------------------------------------------------------------------------------
Required Quantity of DNs: Number Block(s) Assigned (if TCG #s):
- -----------------------------------------------------------------------------------------------------------------------------------
Rate Center Name: ILEC NPA - NXX: - NPA - NXX: -
- -----------------------------------------------------------------------------------------------------------------------------------
New NXX Required ? [ ] Yes [ ] No CLEC Status ? [ ] Yes OCN Number _ _ _ _ [ ] No STS ? [ ] Yes [ ] No
===================================================================================================================================
SERVICE LOCATION INFORMATION (TERMINATION POINTS)
===================================================================================================================================
FROM: TCG LOCATION POINT TO: POINT OF DEMARCATION
===================================================================================================================================
Location Name: Location Name:
- -----------------------------------------------------------------------------------------------------------------------------------
Address: Address:
- -----------------------------------------------------------------------------------------------------------------------------------
City/State/Zip: City/State/Zip:
- -----------------------------------------------------------------------------------------------------------------------------------
NPA/NXX: NPA/NXX
===================================================================================================================================
PROJECT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] MDU Project
- -----------------------------------------------------------------------------------------------------------------------------------
Project / Area Name:
- -----------------------------------------------------------------------------------------------------------------------------------
Address: If Multiple Buildings, Addresses:
- -----------------------------------------------------------------------------------------------------------------------------------
City/State/Zip:
- -----------------------------------------------------------------------------------------------------------------------------------
Other:
- -----------------------------------------------------------------------------------------------------------------------------------
CONTACT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
Initiator Name: Phone: Pager: Fax:
- -----------------------------------------------------------------------------------------------------------------------------------
Design Engineer: Phone: Pager: Fax:
- -----------------------------------------------------------------------------------------------------------------------------------
Tech At Demarc Point: Phone: Pager: Fax:
- -----------------------------------------------------------------------------------------------------------------------------------
Tech At TCG Point: Phone: Pager: Fax:
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 44
<TABLE>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
CUSTOMIZED SERVICES AGREEMENT
BETWEEN TCG ___________________ AND OPTEL
SCHEDULE C - SERVICE SUPPLEMENT # ___________________________________ PAGE 2 OF 3
- ---------------------------------------------------------------------------------------------------------------------
BAN AND OTHER CHARGES
- ---------------------------------------------------------------------------------------------------------------------
RESELLER'S BILLING ACCOUNT NUMBER (BAN): ________________-________________ (Note: The project BAN must be identified
for correct accounting and billing of these services-especially-if this order expands existing service for an MDU or
HFC project.)
=====================================================================================================================
Other Network Elements provided by TCG (if applicable): Other Network Element Charges and USOCs:
- ---------------------------------------------------------------------------------------------------------------------
$ _________________________ USOC: ________________
- ---------------------------------------------------------------------------------------------------------------------
$ _________________________ USOC: ________________
- ---------------------------------------------------------------------------------------------------------------------
$ _________________________ USOC: ________________
=====================================================================================================================
TECHNICAL INFORMATION - PROJECT SPECIFIC
- ---------------------------------------------------------------------------------------------------------------------
Remote Terminal's CLLI: ______________________ Remote Terminal's Site Name: _____________________________
- ---------------------------------------------------------------------------------------------------------------------
[ ] TR-303 Ultimate Remote Terminal Site Size: [ ] 672 [ ] 1344 [ ] 2048
- ---------------------------------------------------------------------------------------------------------------------
DLC Manufacturer: Model Name: Model Number:
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Planned Concentration Level at DLC: Concentration Ratio of DNs to Time Slots DN:TS (e.g., 3:1):
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Planned use TCG Central Office Interface: Concentration Ratio ______________________ (e.g., 1:1, 2:1)
- ---------------------------------------------------------------------------------------------------------------------
DSI Framing/Formatting (check only one): [ ] SF/AMI [ ] ESF / AMI [ ] SF / B8ZS [ ] ESF / B8ZS
- ---------------------------------------------------------------------------------------------------------------------
DSI Termination: [ ] DB15 [ ] SmartJack Type II Default [ ] DSX-1 Type I Default [ ] RJ48X
- ---------------------------------------------------------------------------------------------------------------------
DSI Terminating Room Name: DS1 Terminating Room Telephone Number:
- ---------------------------------------------------------------------------------------------------------------------
Requested Quantity of DS-1s: ___ Required Quantity of Interface Groups to Start: ___ Ultimate Quantity of DS-1s: ___
EOC (Channel 12) assigned to: 1st DS-1 (Primary) Secondary EOC (Channel 12) assigned to: 2nd DS-1
TMC (Channel 24) assigned to: 1st DS-1 (Primary) Secondary TMC (Channel 24) assigned to: 2nd DS-1
- ---------------------------------------------------------------------------------------------------------------------
TCG RESPONSE INFORMATION
- ---------------------------------------------------------------------------------------------------------------------
Type of Switch Interface: [ ] IDCU for 5ESS [ ] SMA for DMS [ ] ESMA-2 for DMS
- ---------------------------------------------------------------------------------------------------------------------
Switch IDT/RT Information: [ ] Lucent 5ESS Switch Mod#(3) __ __ __ IDCU#(2) __ __ Remote#(2) __ __
[ ] Nortel DMS Site Name(4) __ __ __ __ Frame#(2) __ __ Unit # __
[ ] CRV: __ __ __ __
- ---------------------------------------------------------------------------------------------------------------------
TCG Completion Date: ___________________________________
- ---------------------------------------------------------------------------------------------------------------------
TCG/Reseller Test Date: ________________________________________
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 45
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
CUSTOMIZED SERVICES AGREEMENT
Between TCG _________________ and OpTel
SCHEDULE C - SERVICE SUPPLEMENT #__________________ Page 3 of 3
<S> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
SWITCH AND DLC TESTING INFORMATION
- ----------------------------------------------------------------------------------------------------------------------
Verify operation of EOC Primary: [ ] Yes Verify operation of EOC Secondary: [ ] Yes
- ----------------------------------------------------------------------------------------------------------------------
Verify operation of TMC Primary: [ ] Yes Verify operation of TMC Secondary: [ ] Yes
- ----------------------------------------------------------------------------------------------------------------------
Verify alarm operation over EOC Channel: Primary: [ ] Critical [ ] Major
- ----------------------------------------------------------------------------------------------------------------------
Verify alarm operation over EOC Channel: Secondary: [ ] Critical [ ] Major
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
OTHER SWITCH INFORMATION (IF APPLICABLE IN THIS ORDER)
- ----------------------------------------------------------------------------------------------------------------------
Billed Number Screening: [ ] Block Collect Calls [ ] Block 3rd Party Calls [ ] Allow Collect and 3rd Party Calls
- ----------------------------------------------------------------------------------------------------------------------
InterLATA PIC Selection: [ ] ATT [ ] MCI [ ] Sprint [ ] Worldcom/LDDS [ ] Other ______ [ ] No PIC
- ----------------------------------------------------------------------------------------------------------------------
[ ] Allow All Calls/Block No Calls
- ----------------------------------------------------------------------------------------------------------------------
[ ] Block International Operator Access (01+) [ ] Block International Direct Dial Access (011+)
- ----------------------------------------------------------------------------------------------------------------------
[ ] Block Alaska [ ] Block Canada [ ] Block Caribbean [ ] Block Hawaii [ ] Block Mexico
- ----------------------------------------------------------------------------------------------------------------------
[ ] Block Operator (0+) [ ] Block Operator (0-) [ ] Block Directory Assistance (411 and 555)
- ----------------------------------------------------------------------------------------------------------------------
[ ] Block All 900 Calls (InterLATA) [ ] Block 976 Calls (InterLATA) [ ] Block Other 900 Like Exchanges
- ----------------------------------------------------------------------------------------------------------------------
AUTHORIZATIONS
- ----------------------------------------------------------------------------------------------------------------------
This Schedule C is a Service Supplement as defined in the Customized Services Agreement dated _____/_____/, 19____,
entered into between the parties and is subject to all terms and conditions thereof. The term for this Service
Supplement is ______ months.
- ----------------------------------------------------------------------------------------------------------------------
OPTEL TCG _____________________________
- ----------------------------------------------------------------------------------------------------------------------
Signature: Signature:
- ----------------------------------------------------------------------------------------------------------------------
Print Name: Print Name:
- ----------------------------------------------------------------------------------------------------------------------
Title: Title:
- ----------------------------------------------------------------------------------------------------------------------
Date: Date;
- ----------------------------------------------------------------------------------------------------------------------
FOR TCG INTERNAL USE
- ----------------------------------------------------------------------------------------------------------------------
TCG ASR Number: TCG Account Manager:
- ----------------------------------------------------------------------------------------------------------------------
TCG Billing Account Number (BAN): Account Manager ID#:
- ----------------------------------------------------------------------------------------------------------------------
TCG Secondary Account Number (SAN): Phone #: Pager #:
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 46
CUSTOMIZED SERVICES AGREEMENT Date 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE D
PRICE ELEMENTS AND RATES FOR SWITCHED
TELECOMMUNICATIONS SERVICES
***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
<PAGE> 47
CUSTOMIZED SERVICES AGREEMENT DATE: 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE E - LINE, FACILITY AND FEATURES FORECAST
BY REMOTE TERMINAL/DIGITAL LOOP CARRIER
I. FORECAST - This forecast, shown below in Table 1, provides TCG engineering
personnel information for network development and planning purposes. This form
is submitted by OpTel to the TCG Residential Services' Project Manager by the
twenty-fifth of each month for each existing or planned OpTel provided RT/DLC.
Project Name/Number of the RT/DLC: ___________________
City: ____________________ Address:___________________________________
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
TABLE 1 NOW PLAN GAIN 3Q98 4Q98 1Q99 2Q99
GAIN GAIN GAIN GAIN
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
NETWORK ACCESS LINES - - - - - - -
- -----------------------------------------------------------------------------------------------------------------------------------
RESIDENCE
- -----------------------------------------------------------------------------------------------------------------------------------
BUSINESS
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL NETWORK ACCESS LINES
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL DNs
- -----------------------------------------------------------------------------------------------------------------------------------
TR-303 - - - - - - -
- -----------------------------------------------------------------------------------------------------------------------------------
IG GROUP #1
- -----------------------------------------------------------------------------------------------------------------------------------
DS-1 GROUP #1
- -----------------------------------------------------------------------------------------------------------------------------------
CCS/NALs GROUP #1
- -----------------------------------------------------------------------------------------------------------------------------------
CONCENTRATIONS PER IG GROUP #1
- -----------------------------------------------------------------------------------------------------------------------------------
IG GROUP #2
- -----------------------------------------------------------------------------------------------------------------------------------
DS-1 GROUP #2
- -----------------------------------------------------------------------------------------------------------------------------------
CCS/NALs GROUP #2
- -----------------------------------------------------------------------------------------------------------------------------------
CONCENTRATIONS PER IG GROUP #1
- -----------------------------------------------------------------------------------------------------------------------------------
BASIC FEATURES - - - - - - - -
- -----------------------------------------------------------------------------------------------------------------------------------
CALL FWDING BUSY
- -----------------------------------------------------------------------------------------------------------------------------------
CALL FWDING DON'T ANSWER
- -----------------------------------------------------------------------------------------------------------------------------------
CALL FORWARDING VARIABLE
- -----------------------------------------------------------------------------------------------------------------------------------
CALL FWDING BUSY FOR VM
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE> 48
CUSTOMIZED SERVICES AGREEMENT DATE: 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE E - LINE, FACILITY AND FEATURES FORECAST
BY REMOTE TERMINAL/DIGITAL LOOP CARRIER
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
CALL FWDING DON'T ANS WER for VM
- -----------------------------------------------------------------------------------------
CALL FWDING ON CALL WAITING for VM
- -----------------------------------------------------------------------------------------
CALL WAITING
- -----------------------------------------------------------------------------------------
CANCEL CALL WAITING
- -----------------------------------------------------------------------------------------
SPEED CALLING - 8 NUMBERS
- -----------------------------------------------------------------------------------------
SPEED CALLING - 30 NUMBERS
- -----------------------------------------------------------------------------------------
THREE WAY CALLING
- -----------------------------------------------------------------------------------------
MULTI DISTINCTIVE RINGING
- -----------------------------------------------------------------------------------------
STUTTER DIAL TONE FOR VM
- -----------------------------------------------------------------------------------------
VISUAL MESSAGE WAITING FOR VM
- -----------------------------------------------------------------------------------------
ENHANCED FEATURES -- -- -- -- -- -- --
- -----------------------------------------------------------------------------------------
AUTOMATIC RECALL
- -----------------------------------------------------------------------------------------
CALL NUMBER DELIVERY BLOCK
- -----------------------------------------------------------------------------------------
CALLING NUMBER DELIVERY
- -----------------------------------------------------------------------------------------
CUSTOMER ORIGINATED CALL TRACE
- -----------------------------------------------------------------------------------------
PER LINE BLOCK (LINE NUMBER BLOCK
IN DEFINITIONS)
- -----------------------------------------------------------------------------------------
REPEAT DIALING
- -----------------------------------------------------------------------------------------
SELECTIVE CALL ACCEPTANCE
- -----------------------------------------------------------------------------------------
SELECTIVE CALL FORWARDING
- -----------------------------------------------------------------------------------------
SELECTIVE CALL REJECTION
- -----------------------------------------------------------------------------------------
SELECTIVE DISTINCTIVE ALERT
- -----------------------------------------------------------------------------------------
AUTOMATIC RECALL, 2ND LEVEL
ACTIVATION
- -----------------------------------------------------------------------------------------
CALLING NAME DELIVERY
- -----------------------------------------------------------------------------------------
CALL WAITING I.D.
- -----------------------------------------------------------------------------------------
LINE NUMBER UNBLOCK (*82 UNBLOCK)
- -----------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 49
CUSTOMIZED SERVICES AGREEMENT DATE: 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE E - LINE, FACILITY AND FEATURES FORECAST
BY REMOTE TERMINAL/DIGITAL LOOP CARRIER
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------
LONG DISTANCE ALERT
- ----------------------------------------------------------------------------------------------
NON-RETURN OF PRIVATE CALLS
- ----------------------------------------------------------------------------------------------
REMOTE ACTIVATION OF CALL FWDING
- ----------------------------------------------------------------------------------------------
UNIDENTIFIED CALL REJECTION
- ----------------------------------------------------------------------------------------------
VALUE ADDED FEATURES -- -- -- -- -- -- -- --
- ----------------------------------------------------------------------------------------------
VM - "BASIC CALL ANSWERING" -COS 100
- ----------------------------------------------------------------------------------------------
VM - "EXTENDED CALL ANSWERING" -COS 200
- ----------------------------------------------------------------------------------------------
VM - "DELUXE CALL ANSWERING" -COS 300
- ----------------------------------------------------------------------------------------------
VM - "DELUXE MULTI CALL ANSWERING" -COS 400
- ----------------------------------------------------------------------------------------------
</TABLE>
NXX CODES
OpTel requires new NXX codes in the following rate centers in the coming
quarters.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
RATE CENTER NAME NXX REQUIRED TCG'S CURRENT NXX
AND STATE IN THE FOLLOWING CODE(S) FOR THE
QUARTER RATE CENTER
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 50
CUSTOMIZED SERVICES AGREEMENT DATE: 5/29/98
BETWEEN TCG AND OPTEL
SCHEDULE F - CALL RECORD FILE FORMATS
I. CALL RECORD FILE FORMATS FOR TCG's CENTRAL OFFICE SWITCHES (LUCENT AND
NORTEL)
Attached are sample records that TCG will provide to Reseller.
1
<PAGE> 51
3-30 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00625
--------------------------------------------------
TABLE 3-31
STRUCTURE CODE 00625 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date 6
Timing indicator 7
Study indicator 8
Answer indicator 9
Service observed, traffic sampled 10
Operator action 11
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 1019 17
Answer time 18
Elapsed time 19
*IC/INC prefix 57
Carrier connect date 6
Carrier connect time 18
Elapsed time from carrier connect 19
IC/INC call event status 58
Trunk group number 83
Routing indicator 59
Dialing indicator 85
ANI indicator 60
--------------------------------------------------
CALL CODES: 065, 066, 110, 119, 132, 134, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 52
3-26 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00502
--------------------------------------------------
TABLE 3-26
STRUCTURE CODE 00502 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 001, 800-999
STRUCTURE CODE 00503
--------------------------------------------------
TABLE 3-27
STRUCTURE CODE 00503 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 002, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 53
3-24 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00500
--------------------------------------------------
TABLE 3-24
STRUCTURE CODE 00500 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
--------------------------------------------------
CALL CODES: 005, 006, 011, 021, 088, 132, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 54
3-30 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00625
--------------------------------------------------
TABLE 3-31
STRUCTURE CODE 00625 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date 6
Timing indicator 7
Study indicator 8
Answer indicator 9
Service observed, traffic sampled 10
Operator action 11
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 1019 17
Answer time 18
Elapsed time 19
*IC/INC prefix 57
Carrier connect date 6
Carrier connect time 18
Elapsed time from carrier connect 19
IC/INC call event status 58
Trunk group number 83
Routing indicator 59
Dialing indicator 85
ANI indicator 60
--------------------------------------------------
CALL CODES: 065, 066, 110, 119, 132, 134, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 55
3-26 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00502
--------------------------------------------------
TABLE 3-26
STRUCTURE CODE 00502 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 001, 800-999
STRUCTURE CODE 00503
--------------------------------------------------
TABLE 3-27
STRUCTURE CODE 00503 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 002, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 56
3-24 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00500
--------------------------------------------------
TABLE 3-24
STRUCTURE CODE 00500 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
--------------------------------------------------
CALL CODES: 005, 006, 011, 021, 088, 132, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 57
3-30 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00625
--------------------------------------------------
TABLE 3-31
STRUCTURE CODE 00625 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date 6
Timing indicator 7
Study indicator 8
Answer indicator 9
Service observed, traffic sampled 10
Operator action 11
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 1019 17
Answer time 18
Elapsed time 19
*IC/INC prefix 57
Carrier connect date 6
Carrier connect time 18
Elapsed time from carrier connect 19
IC/INC call event status 58
Trunk group number 83
Routing indicator 59
Dialing indicator 85
ANI indicator 60
--------------------------------------------------
CALL CODES: 065, 066, 110, 119, 132, 134, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 58
3-26 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00502
--------------------------------------------------
TABLE 3-26
STRUCTURE CODE 00502 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 001, 800-999
STRUCTURE CODE 00503
--------------------------------------------------
TABLE 3-27
STRUCTURE CODE 00503 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 002, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 59
3-24 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00500
--------------------------------------------------
TABLE 3-24
STRUCTURE CODE 00500 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
--------------------------------------------------
CALL CODES: 005, 006, 011, 021, 088, 132, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 60
3-30 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00625
--------------------------------------------------
TABLE 3-31
STRUCTURE CODE 00625 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date 6
Timing indicator 7
Study indicator 8
Answer indicator 9
Service observed, traffic sampled 10
Operator action 11
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 1019 17
Answer time 18
Elapsed time 19
*IC/INC prefix 57
Carrier connect date 6
Carrier connect time 18
Elapsed time from carrier connect 19
IC/INC call event status 58
Trunk group number 83
Routing indicator 59
Dialing indicator 85
ANI indicator 60
--------------------------------------------------
CALL CODES: 065, 066, 110, 119, 132, 134, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 61
3-26 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00502
--------------------------------------------------
TABLE 3-26
STRUCTURE CODE 00502 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 001, 800-999
STRUCTURE CODE 00503
--------------------------------------------------
TABLE 3-27
STRUCTURE CODE 00503 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Connect time 18
Elapsed time 19
WATS band or MBI 29
--------------------------------------------------
CALL CODES: 002, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 62
3-24 Structure codes
- --------------------------------------------------------------------------------
STRUCTURE CODE 00500
--------------------------------------------------
TABLE 3-24
STRUCTURE CODE 00500 FIELDS
INFORMATION FIELD NUMBER
--------------------------------------------------
Record descriptor word 000
Hexadecimal identifier 00
Structure code 0
Call type 1
Sensor type 2
Sensor identification 3
Recording office type 4
Recording office identification 5
Date of answer 6
Answer indicator 9
Service feature 12
Originating NPA 13
Originating number 14
Overseas indicator 15
Terminating NPA 16
Terminating number 17
Connect time 18
Elapsed time 19
--------------------------------------------------
CALL CODES: 005, 006, 011, 021, 088, 132, 800-999
- --------------------------------------------------------------------------------
297-1001-830 Standard 07.03 March 1994
<PAGE> 63
SCHEDULE G
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
1.0 PURPOSE AND SCOPE OF DOCUMENT
This document titled "Residential Service Level Program" proposes operations
specifications for wholesale switched telecommunications services to Resellers
for resale to Multiple Dwelling Unit (MDU) projects. The network as defined in
this program shall refer to the TCG Network.
2.0 DEFINITIONS
"BUSINESS DAY" means Business Days are Monday through and including Friday and
exclude Saturdays, Sundays and the Official Holidays listed below.
"BUSY HOUR" means the continuous one-hour period of the day during which volume
of traffic is greater than during any other continuous one-hour period of the
same day.
"NETWORK" means the TCG network.
"OBJECTIVES" represent long-term goals which TCG will use reasonable efforts to
meet and may become standards in future amendments to this program.
"OFFICIAL HOLIDAYS" are the following:
New Year's Day - January 1
Presidents Day - Varies
Memorial Day - Varies
Fourth (4th) of July - July 4
Labor Day - Varies
Thanksgiving Day - Varies
Day After Thanksgiving - Friday/ Week Varies
Christmas Day - December 25
"OPTIONS" are criteria which are desirable, but which are not required of TCG.
"ORDER ENTRY DAY" means that part of a "Business Day" up to 2:00 P.M. MST.
Orders placed after 2:00 P.M. MST are moved into and will begin to be processed
the next available Business Day.
1
<PAGE> 64
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
3.0 RESPONSIVENESS BY THE TCG'S CUSTOMER SERVICE CENTER (CSC)
This section provides a list of objectives related to TCG's CSC's
responsiveness.
3.1 RESPONSIVENESS OF TCG'S CSC TO NEW DN SERVICE ORDERS AND DN CHANGE
ORDERS.
The TCG CSC objective is to respond to greater than ninety five (95) percent of
all Service Orders and Change Orders placed through the Reseller's system or
equivalent, e.g. facsimile, within the same business day when the order is
placed before 2 PM MST. This measurement is calculated by dividing the total
number of New DN Service Orders and DN Change Orders opened by TCG, during a
calendar one-month period, by the total number of New DN Order and DN Change
Orders received by TCG during the same calendar one-month period, and
multiplying that factor by one hundred (100).
3.2 TRANSMISSION OF SERVICE ORDERS BY RESELLER TO THE TCG CSC
TCG requires that a New DN Service Order be received in the TCG CSC at least
three (3) Business Days in advance of the scheduled Customer Desired Due Date
("CDDD"). If a New DN Service Order is submitted to the TCG CSC on a TCG
Official Holiday, the order will be processed on the following Business Day in
the time frames set forth below.
New DN Service Orders will be handled for database entry by TCG by the end of
the Business Day, and completed by TCG within three (3) Business Days if
received before 2 P.M. MST.
New DN Service Orders will be provisioned by TCG by the end of the second full
Business Day, and completed by TCG within three (3) Business Days if received
after 2 P.M. MST.
DN Change Orders, including Disconnect Orders and Suspend Service Orders, will
be completed within one Business Day after receipt of the order. (This excludes
Move Orders for which the DN must be changed or moved to a new geographic
location, which require three (3) Business Days for 911 updates.)
An order must be received by the TCG CSC before 2:00 P.M. MST to be considered
submitted on that Business Day. Requests received after 2:00 P.M. MST will be
considered submitted on the following Business Day. Business Hours to accept
orders for New DN Service Orders and DN Change Orders are Monday through Friday
(except for the Holidays previously noted), from 6:00 A.M. to 6:00 P.M. MST.
Orders sent outside these times will be opened at the beginning of the next
Business Day.
2
<PAGE> 65
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
3.3 NEW DN SERVICE ORDER PROVISIONING - PERCENT OF NEW DN SERVICE ORDERS
RECEIVED BEFORE 2:00 P.M. MOUNTAIN TIME PROVISIONED BY THE END OF THE NEXT
BUSINESS DAY BY TCG'S CSC
The TCG CSC will provision ninety five (95) percent of all New DN Service
Orders submitted by Reseller before 2 P.M. MST by the end of the next Business
Day. For the purposes of this Schedule E, a Directory Number (DN)/line is
considered "provisioned" when there is dial tone present, the requested
features have been provisioned, and the following types of calls can be
completed: local, intraLATA, interLATA (long distance), local operator
services, long distance operator services, and directory assistance.
Provisioning does not include cable and pair assignments at the MDF or IDFs
which are the responsibility of Reseller. Such time frame for provisioning is
only possible for those DNs for which Reseller has previously ordered the
necessary Network (DS-1) facilities. Orders from Reseller for DNs require that
the Reseller have previously ordered the necessary network facilities. These
network DS-1s will have been ordered in a timely basis by the Reseller from
TCG, and such facilities will have been in place and tested before the ordering
of any DNs.
This measurement in this Section 3.3 is determined by dividing the total number
of New DN Service Orders provisioned in by the end of the next full Business
Day after the receipt of a New DN Service Order by 2 P.M. MST, during a
calendar one-month period, by the total number of New DN Service Orders
provisioned during the same calendar one-month period, and multiplying that
factor by one hundred (100).
3.4 NEW DN SERVICE ORDER COMPLETION - PERCENT OF NEW DN SERVICE ORDERS
RECEIVED BEFORE 2:00 P.M. MST COMPLETED IN THREE BUSINESS DAYS BY TCG'S CSC
TCG's CSC will complete ninety (90) percent of all New DN Service Orders
submitted by Reseller within three (3) Business Days of receipt of the order. A
New DN Service Order will not be considered "complete" until the new DN has
been entered into all the relevant databases: E911, CARE, LIDB, Directory
Assistance, and Directory Listing. TCG requires one (1) full Business Day to
verify that the E911 database has been updated. This period may extend to two
(2) days or longer if a longer interval is required by the relevant RBOC to
enter updates into the E911 database. RESELLER AGREES IN THE E-911 AGREEMENT
THAT THEY SHALL WITHHOLD CUSTOMER TURN UP UNTIL THE ORDER IS COMPLETED AND THE
E911 DATABASE HAS BEEN UPDATED. (While TCG commits to provide all information
to the responsible and applicable database holders in the above-mentioned time
frames, TCG is not responsible for delays by the owner of the applicable
database in entering information into their database, except to the extent that
TCG itself is the owner or controller of the applicable database(s).) This
measurement in this Section 3.4 is calculated by dividing the total number of
New DN Service Orders completed in three (3) Business Days after the receipt of
a New DN Service
3
<PAGE> 66
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
Order, during a calendar one-month period, by the total number of New DN
Service Orders completed in the same calendar one-month period, and multiplying
that factor by one-hundred.
3.5 DN CHANGE ORDER COMPLETION - PERCENT COMMITMENT MET BY TCG'S CSC IN
ONE BUSINESS DAY BY TCG'S CUSTOMER SERVICE CENTER
TCG Customer Service Center will complete ninety five (95) percent or greater of
all DN Change Orders submitted by Reseller within one (1) Business Day of
receipt of the order. For the purposes of this Service Level Program, a DN
Change Order will be defined as modification to an existing DN/line, the
disconnection of a currently installed DN/line, and/or suspension of service on
a currently existing DN or line (i.e., a warm disconnect).
This measurement in this Section 3.5 is calculated by dividing the total number
of DN Change Orders completed in one (1) full Business Day after the receipt of
a DN Change Order, during a calendar one-month period, by the total number of
DN Change Orders completed in the same calendar one-month period, and
multiplying that factor by one hundred (100).
3.6 DN SERVICE ORDER AND DN CHANGE ORDER - PERCENT COMMITMENT MET BY CSC
TCG's CSC will meet ninety-five (95) percent or greater of DN Service Order and
DN Change Order commitments during a calendar one-month period. "Commitment
Met" as used in this subsection refers to TCG completing a New DN Service Order
or a DN Change Service Order by the Customer Desired Due Date (CDDD). The CDDD
is the date requested by Reseller which shall meet the criteria set forth in
Section 3.4 of this Service Level Program for New DN Service Order completion
and Section 3.5 of this program for DN Change Order completion.
This measurement in this Section 3.6 is calculated by dividing the number of
order Commitments Met in a calendar one-month period by the number of
commitments issued in the same calendar one-month period, and multiplying that
factor by one-hundred (100).
3.7 EXPEDITING A DN CHANGE ORDER
From time to time, Reseller may request to expedite a DN Change Order for a
software feature. A DN Change Order is considered expedited if the CDDD is
less than the standard one (1) Business Day for DN Change Orders. Expedited DN
Change Orders will be marked on the order accordingly with the requested
expedited date. There will be a fee for such services. TCG will have three (3)
hours from the time of transmission of the order by Reseller, to respond as to
whether or not the expedited order can be completed within the requested time
frame. HOWEVER, TCG WILL NOT BE REQUIRED TO EXPEDITE THE PROVISIONING OF A NEW
DN SERVICE ORDER IN FEWER THAN THREE (3) BUSINESS DAYS BECAUSE OF THE
REQUIREMENTS OF 3.4, I.E., UPDATING OF ANCILLARY DATABASES INCLUDING E-911.
4
<PAGE> 67
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
3.8 SERVICE ORDER PROVISIONING FOR NETWORK DS1S
The minimum interval for the provisioning of Network DS1s where TCG equipment
and TCG facilities are in place is four (4) weeks. Where DS1 facilities are not
available, this interval may be a minimum of six (6) weeks to twelve (12)
weeks, depending upon the circumstances. If TCG facilities are not available,
the Parties shall discuss, and mutually agree, to solutions such as Type II
service, promptly and in good faith.
3.9 SERVICE LEVEL ACCURACY
TCG's obligations regarding the accuracy of levels of service related to New DN
and Changed DN Order entry and provisioning are:
a) during a calendar one-month period, enter and provision ninety-five
(95) percent of New DN Service Orders and DN Change Orders accurately; and
b) during a calendar one-month period, limit inadvertent changes
applied to a DN to less than four (4) percent of DNs provisioned to Reseller
(measured as inadvertent changes as a percentage of total existing DNs).
Reseller's obligation regarding service levels related to New DN Service Orders
is:
a) provide ninety-five (95) percent of required Customer information
accurately at the time of the New DN Service Order placement.
4.0 RESPONSIVENESS BY THE TCG'S-NATIONAL MONITORING CENTER
This section provides a list of objectives related to the NMC's responsiveness.
4.1 PERCENT CALLS ANSWERED WITHIN THIRTY (30) SECONDS BY TCG
In a calendar one-month period, TCG shall answer ninety-five (95) percent of
all repair calls within thirty (30) seconds. This measurement is calculated by
dividing the number of Repair Calls answered by a TCG service representative
within thirty (30) seconds in a calendar one-month period, by the total number
of repair calls answered in the same calendar one-month period, and multiplying
that factor by one hundred (100).
5
<PAGE> 68
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
4.2 PERCENT REPAIR CENTER ACCESSIBILITY
TCG shall take one hundred (100) percent of Reseller repair calls within three
(3) minutes of their placement to TCG. This measurement is based upon the
number of calls answered as a percentage of the number of calls attempted. This
parameter is calculated by dividing the number of calls answered by TCG by the
total number of calls attempted and multiplying by 100.
4.3 PERCENT REPAIR COMMITMENTS MET
This measurement is related to the percentage of end-user repair order
commitments met by TCG. Compliance with this measurement is determined by
dividing the total Trouble Reports cleared by TCG upon the date and clock hour
time promised to Reseller, during a calendar one-month period, by the total
reports cleared during the same calendar one-month period, the factor of which
is multiplied by one hundred (100). The TCG commitment is greater than
ninety-five (95) percent repair commitments met. This measurement applies to
troubles arising from the TCG switch through to the Point of Demarcation
between the TCG and Reseller networks.
This measurement is related to the percent customer repair order commitments
met. This parameter is calculated by dividing the total customer reports
cleared (by the date and clock hour time promised to the customer that the
trouble would by cleared) by the total reports cleared and multiplying by 100.
4.4 PERCENT TROUBLE REPORTS CLEARED WITHIN 24 HOURS OF TROUBLE REPORT
RECEIPT
This measurement is related to the number of Trouble Reports cleared within
twenty-four (24) hours of receipt thereof by TCG. Compliance with this
measurement is determined by dividing the total number of Trouble Reports
cleared during a calendar one-month period within a twenty-four (24) hour
period, by the total number of Trouble Reports received during the same
calendar one-month period, and multiplying the factor by one-hundred (100).
This Measurement applies to troubles arising from the TCG switch to the Point
of Demarcation between the Reseller and TCG networks.
TCG shall exhibit greater 95 percent trouble reports during a twenty four hour
period. This applies to troubles from the TCG switch to the Point of
Demarcation.
4.5 PERCENT "OUT OF SERVICE" (OOS) TROUBLE REPORTS CLEARED IN EIGHT HOURS
This measurement is related to the Out of Service ("OOS") Trouble Reports
cleared within an eight-hour period. Compliance with this measurement is
determined by dividing the total number of OOS Trouble Reports cleared by TCG
within eight (8) hours of their receipt by TCG, during a calendar one-month
period, by the total number of OOS Trouble Reports received during the same
calendar one-month period, and multiplying the factor by one hundred (100).
6
<PAGE> 69
RESIDENTIAL SERVICE LEVEL PROGRAM
5/29/98
This measurement is ninety-five (95) percent of OOS Trouble Reports during a
calendar one-month period cleared within eight (8) hours of receipt thereof by
TCG. This Measurement applies to OOS troubles arising from the TCG switch
through to the Point of Demarcation between the Reseller and TCG networks.
5.0 NETWORK RELIABILITY
This section provides a list of objectives related to network reliability.
5.1 LOCAL NETWORK TROUBLES PER 100 CUSTOMERS' LINES
This measurement pertains to the total number of Trouble Reports arising within
the Reseller local network. This parameter is calculated by dividing the total
local network troubles reported by Reseller to TCG in a calendar one-month
period, by the total number of Customer lines existing at the end of the same
one-month period in the relevant geographic area, and multiplying the factor by
one hundred (100). This measurement will be fewer than six (6) Trouble Reports
per one hundred (100) Reseller end-user lines during a one-month period, or,
fewer than six (6) percent of Reseller end-user lines with local network
troubles. This measurement applies to local network troubles arising from
causes between the TCG switch through to the Point of Demarcation separating
the TCG and Reseller networks.
5.2 PERCENT LOCAL NETWORK REPEATED TROUBLE REPORTS
This measurement relates to repeated local network Trouble Reports ("Repeat LN
Trouble Reports") submitted by Reseller to TCG. Compliance with this
measurement is determined by totaling the number of Trouble Reports received by
TCG in a calendar one-month period for end-user lines on which a trouble
previously existed during the previous sixty (60) days, and dividing the
foregoing total by the total local network Trouble Reports for the one-month
period in question. This measurement will be less than four (4) percent Repeat
Trouble Reports for the relevant one-month period. This measurement applies to
Found Troubles arising between the TCG switch and the Point of Demarcation
separating the Reseller and TCG networks. "Found Troubles" are TCG troubles
arising from TCG's own equipment or Network, and they do not include troubles
arising from Reseller's equipment or network exclusively.
6.0 SWITCH RELIABILITY
This section provides a list of objectives related to switch reliability.
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6.1 SWITCH TROUBLES PER 100 CUSTOMERS' LINES
This measurement relates to Trouble Reports arising from the TCG switch.
Compliance with this measurement is calculated by dividing the total
switch-related troubles reported by Reseller to TCG during a calendar one-month
period, by the total number of Reseller end-user lines existing at the end of
that one-month period in the relevant geographic area served by the relevant
switch, and multiplying the result by one-hundred (100). TCG's objective is
four (4) or fewer switch-related Trouble Reports per one-hundred (100) Reseller
end-user lines per calendar one-month period, or, fewer than four (4) percent
of Reseller end-user lines with switch troubles. This measurement applies to
troubles arising from the TCG switch.
6.2 PERCENT SWITCH REPEATED TROUBLE REPORTS
This is a measure of repeated Trouble Reports caused by the TCG switch ("Repeat
Switch Trouble Reports"). Compliance with this measurement is obtained by
totaling the number of the switch Trouble Reports received by TCG in a calendar
one-month period for end-user lines on which a trouble existed during the
previous sixty (60) days, and dividing the foregoing total by the total switch
Trouble Reports for the one-month period in question. TCG's objective will be
less than five (5) percent Repeat Switch Troubled Reports per calendar month.
6.3 SWITCH TROUBLE REPORTS CLEARED WITHIN A SPECIFIC TIME FRAME
TCG's objective will be to clear ninety-five (95) percent of switch-related
Trouble Reports within a twenty-four (24) hour period from the receipt thereof
by TCG.
6.4 SWITCH PERFORMANCE
TCG's switch performance objectives include:
a) originating calls will experience blockage of less than one (1) call
in one hundred (100) calls (P.01Grade of Service) during the busy
hour of the day;
b) terminating calls will experience blockage of less than or equal to
one (1) call in one hundred (100) calls (P.01Grade of Service)
during the busy hour of the day;
c) blockage of access to the switch is equal to or less than .01 during
the busy hour of the day; and
d) dial tone in two-point-five (2.5) seconds or less.
7.0 SERVICE SURVEILLANCE MEASUREMENTS
TCG shall provide 7 days a week, 24 hours a day surveillance on the network.
This applies to troubles from the TCG switch to the Point of Demarcation. The
appropriate measurements as indicated in this section shall be reported to the
Reseller.
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The Reseller, as the local network provider, shall provide for 7 days a week,
24 hours a day work force dispatch upon indication from their own surveillance
and monitoring activities, or as based upon measurements from TCG. This applies
to troubles from the Point of Demarcation to and including the end user's
telephone set.
8.0 OPERATIONS/NETWORK MANAGEMENT MEASUREMENTS
TCG shall provide 24x7 surveillance of its Network from its switch to the Point
of Demarcation separating the TCG Network and the Reseller network. In the
event that TCG provides the Remote Terminal ("RT") or Digital Loop Carrier
("DLC") for the services, then TCG will monitor the Network between the TCG
switch up to and including the RT/DLC.
In the event that alarm related to any of the Network elements mentioned above
affects or has the potential to affect Reseller's ability to provide service,
TCG shall contact Reseller's NMC immediately following the alarm and, again,
immediately, when the alarm is cleared. TCG shall use reasonable efforts to
contact Reseller's NMC as soon as possible, but no later than fifteen (15)
minutes of an alarm event. Reseller shall provide TCG with a point of contact
and an escalation list for reporting such alarms.
Reseller shall endeavor to refer/assign Reseller Trouble Tickets to TCG via a
facsimile system. Upon receipt of a Trouble Ticket from Reseller, TCG shall
enter such receipt at the TCG NMC.
9.0 TESTING INTERVALS
TCG provides testing for two basic services under this Service Level Program.
These services include: 1) testing of new equipment based services, and 2)
testing of DS-1 circuits. TCG testing normally takes place prior to or on the
customer concurred due date. Such intervals may be from a week in advance to
the actual concurred due date. TCG will arrange in advance with the Reseller
for test dates for new equipment and DS1s to RT/DLCs. Typically a small number
of DNs are tested in the DLC by the Reseller prior to the initiation of new
service to a new DLC.
10. RESELLER FORECAST OF SERVICE MEASUREMENTS
TCG's ability to provide service and continue to meet certain service levels is
based upon the timely receipt of forecasts from Reseller that project future
activity. For the purpose of meeting the required lead times to secure certain
switch hardware, Reseller agrees to provide on a monthly basis, a "rolling
forecast" that projects DN line sales and additional features at least three,
six, nine and twelve months in advance for each city.
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Reseller will provide TCG with advanced notice in the nine and twelve month
forecasts of Reseller's desire to offer services in rate centers outside TCG's
current rate centers. This is required to assure the timely acquisition and
implementation of trunking to the PSAPs in that rate center. This is especially
applicable if TCG does not presently have NXX codes for such future residential
locations.
11. RESELLER'S SELECTION OF REMOTE TERMINALS/DIGITAL LOOP CARRIERS
TCG's ability to provide Telecommunications Services and continue to meet
certain service levels is based upon the use of approved Remote Terminals/
Digital Loop Carriers. If the Reseller provides the DLC/RT, TCG will provide
Reseller with a list of approved vendors whose RT/DLCs have been approved by
TCG. TCG agrees to not reasonably withhold such approvals, provided however
that the vendor's RT/DLC has met and continues to meet the guidelines set forth
by Bellcore for such products, including interfacing to TR-0000303, and is an
approved standard of TCG.
12. ACQUISITION OF NXX CODES
TCG's ability to provide Telecommunications Services and continue to meet
certain service levels is based upon TCG's having available NXX codes or the
Reseller's advanced notice to TCG to secure new NXX codes, if TCG agrees to
such. The normal minimal interval for the acquisition of new NXX codes, when
available, is typically 100 days. TCG shall use reasonable efforts to expedite
such NXX Code requests upon the reasonable request of Reseller if required.
However, the request to expedite the implementation of an NXX code is tied to
making arrangements with the Public Safety Answering Points (PSAPs) for that
Rate Center. WHILE TCG MAY OFFER ITS WHOLESALE RESIDENTIAL SERVICES, DN
SERVICES CANNOT BE IMPLEMENTED UNTIL APPROPRIATE ARRANGEMENTS ARE MADE AND ARE
COMPLETED WITH THE SPECIFICALLY LOCATED PSAP.
13.0 REGULATORY REQUIREMENTS
Providers of local Residential Telephone Service and Certified Local Exchange
Companies have responsibilities defined by State Public Utility Commissions.
State Public Utility Commissions require certain parameters listed in this
document to be monitored and reported. Requirements for levels of service and
reports vary by state. Refer to the "Telephone Service Quality Handbook"
published by the National Association of Regulatory Utility Commissioners for
details on the requirements for each state.
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14.0 RESOLVING ISSUES AND PROBLEMS
In the event service levels of Telecommunications Services fall below targeted
objectives, TCG and the Reseller will mutually agree to meet monthly by phone or
in person, at a place convenient to each party, to discuss issues causing,
issues thought to be causing or issues related to such problems. In the event
monthly meetings do not resolve the issues, TCG and the Reseller agree to meet
weekly to resolve the issues. In the event weekly meetings do not resolve the
issues, TCG and the Reseller agree to meet daily by phone or in person at a time
and place mutually agreeable to resolve the issues. Such meetings will be to
outline methods and procedures to resolve the issues. The meetings will have an
agenda which is available to all parties at least a week before monthly
meetings, three days before the weekly meetings, and six hours before daily
meetings.
- --end--
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RESIDENTIAL RESELLER AGREEMENT
SCHEDULE H - 911 AGREEMENT
THIS 911 AGREEMENT (hereinafter, the "Agreement") is made and entered into
as of this ______ day of _____, 1998, by and between TCG _____, a New York
general partnership registered to do business in the State of ______, with a
principal place of business at One Teleport Drive, Staten Island, New York
(hereinafter referred to as "TCG" or the "Company"), and TVMAX
TELECOMMUNICATIONS, INC., d/b/a OpTel, Inc., a Delaware business corporation
registered to do business in the State of ______, with a principal place of
business located at 1111 W. Mockingbird Lane, Suite 1000, Dallas, Texas 75247
(hereinafter referred to as "Reseller").
The purpose of this 911 Agreement is to establish the respective duties,
rights and responsibilities of the Parties hereto with respect to the provision
of 911 services to Customers of Reseller located in the _______ residential
development located at __________________, in _________, _________, served
under and pursuant to the Residential Reseller Agreement (hereinafter,
"Residential Reseller Agreement") between the Parties, entered into on or about
the ______ day of _________, 1998.
WITNESSETH:
WHEREAS, TCG is in the business of providing telecommunications services in
certain geographic market areas; and
WHEREAS, Reseller proposes to use certain TCG telecommunications services
to provide telecommunication services to residents of the _________________
residential development, located in ___________, ________, provisioned under
and pursuant to the Residential Reseller Agreement, into which this 911
Agreement is incorporated by reference; and
WHEREAS, TCG has agreed to provide 911/E911 Trunking and Database
Administration Services to Reseller pursuant to the terms and conditions set
forth herein and in the Residential Reseller Agreement; and
WHEREAS, TCG and Reseller wish to set forth terms and conditions which
will be applicable to such 911/E911 Trunking and Database Administration
Services as may be ordered and furnished from time to time as herein provided;
and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
warranties which appear hereinbelow, and intending to be legally bound thereby,
the Parties hereby agree as follows:
I. DEFINITION OF TERMS
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For purposes of this Agreement, the following terms shall mean:
ADMINISTRATIVE SITE - A location for the computer hardware and software
necessary to create and transmit end user information to the E911 database.
AUTOMATIC LOCATION IDENTIFICATION (ALI) - an E911 feature that provides the
name or street address or both associated with the calling party's
telephone number (identified by ANI as defined below) to the public safety
answering point (PSAP) for display.
AUTOMATIC NUMBER IDENTIFICATION (ANI) - a feature that automatically
forwards the telephone number of the calling party to the LEC E911 control
(tandem switching) office from which it is switched to the PSAP for
display.
CONTROL OFFICE - The LEC central office providing tandem switching
capabilities for E911 service calls from all end offices. It controls the
switching of ANI information to a PSAP and also provides the Selective
Routing Service, Speed Calling features, call transfer services and certain
management functions for each PSAP.
CUSTOMER NAME AND ADDRESS INFORMATION (CNA) - may include the customer
name, customer service address and telephone numbers of an exchange
carrier's subscribers for a particular exchange calling area. This data
includes nonpublished listing, coin and telephone information and published
listings as defined in the Residential Reseller Agreement.
CUSTOMER - refers to Reseller's Customers to whom service is provided under
and pursuant to the Residential Reseller Agreement.
DATABASE MANAGEMENT SYSTEM (DMS) - A system of manual procedures and
computer programs used to create, store, and update the data required by
the RBOC or LEC in order to provide the Selective Routing Service and ALI
features.
EMERGENCY SERVICES - may include but are not limited to police, fire,
ambulance, rescue and medical service.
ENHANCED 911 SERVICE (E911) - provides completion of 911 calls via
dedicated utilities and includes Automatic Number Identification (ANI),
Automatic Location Identification (ALI) and/or Selective Routing Service.
EXCHANGE - means a geographic area established for the provisioning of
local telephone service under a local tariff.
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It consists of one or more wire centers together with the associated
facilities used in providing telecommunications services within the area.
EMERGENCY SERVICE NUMBER (ESN) -- an ESN is a Selective Routing Service
code assigned to each telephone number in an exchange where Selective
Routing is provided to route E911 calls to an appropriate PSAP. The ESN
defines the set of emergency services (e.g., police, fire, PSAP and
medical) within a particular serving area. An ESN is associated with a
primary PSAP and possibly one or more secondary PSAPs.
MSAG -- Master Street Address Guide.
911 SERVICE AREA -- the geographic area in which the PSAP will respond to
911 calls and dispatch appropriate emergency assistance.
PUBLIC SAFETY ANSWERING POINT (PSAP) -- a communications facility operated
or answered on a 24-hour basis, assigned responsibility by a public agency
or county to receive 911 calls and, as appropriate, to directly dispatch
emergency response services, or to transfer or relay emergency 911 calls to
other public safety agencies. It is the first point of reception by a
public safety agency of a 911 call, and serves the jurisdictions in which
it is located and other participating jurisdictions, if any.
RBOC OR LEC -- Regional Bell Operating Company or Incumbent Local Exchange
Carrier, such as Southwestern Bell, GTE, etc.
SELECTIVE ROUTING SERVICE -- a feature that provides the capability to
selectively route a 911 call from a central office to the designated
primary PSAP based upon the identified number of the calling party.
SERVING CENTRAL OFFICE -- central office from which a PSAP, either primary
or secondary, is served.
UNIVERSAL EMERGENCY NUMBER SERVICE -- a telephone exchange communication
service whereby a PSAP for the end user's geographic area may receive
telephone calls dialed to the telephone number 911. The 911 Service
includes lines and equipment necessary for transferring and dispatching
public emergency telephone calls originated by end users within the Control
Office area for 911 calling.
II. OBLIGATIONS OF RESELLER
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A. At a reasonable time prior to establishment of E911 Service, Reseller
shall provide to TCG and shall maintain all information required by TCG,
the PSAP and the applicable RBOC or LEC to establish records necessary to
populate the E911 ALI database management system (DMS) that provides local
information to the PSAP. Reseller shall adopt and comply with the operating
methods applicable to downloading and maintaining Reseller's end user
records in the DMS, in accordance with the requirements of the PSAP and the
RBOC or LEC or their agents.
Reseller shall provide TCG daily updates to the CNA database.
Reseller shall correct errors in the information provided to TCG (initial
uploading, and subsequent updates) as soon as practicable, but no later
than the first business day following the day the error is reported.
Reseller shall withhold the turn-up of customer service until Reseller
receives confirmation that the CNA data has been properly entered into the
DMS.
B. The provision of 911 service and the treatment of customer proprietary
information shall be provided in accordance with state and federal law.
Reseller acknowledges that the privacy afforded by unlisted and
non-published service will be relinquished to the extent that the telephone
number, the address, and the name associated with the originating station
location are furnished to the RBOC, PSAP and TCG. Reseller consents to the
storage and retention of Reseller's customer name, telephone number, and
address in the data bases used for providing 911 service, and also consents
to access to this information by the RBOC, PSAP and emergency response
authorities for the sole purpose of responding to an emergency call.
Reseller shall also obtain a release of any privacy rights for unlisted
and/or nonpublished numbers from its customers.
C. Reseller acknowledges that Customers in a single local calling area that
may be served by different PSAPs, shall assign to its Customers NXXs that
correlate to the RBOC or LEC assigned rate center in which the Customer
resides and that correlate to the PSAP serving that rate center. TCG shall
be responsible for ordering facilities from the RBOC to route calls from
Customers to the RBOC 911 tandem identified by Reseller for its Customers.
D. Reseller shall, to the maximum extent permitted by law, provide in its
tariffs and contracts with Customers that relate to any telecommunications
services provided by TCG, including the provision of 911 hereunder, that in
no case
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shall Reseller or any of its agents, contractors or service providers, be
liable to any customer for (i) any loss relating to or arising out of the
provision of service or functions, or network elements, including 911
services, whether in contract, tort or otherwise, that exceeds the amount
Reseller would have charged the applicable customer for the service(s) or
functions(s) that gave rise to such loss; and (ii) any consequential
damages. If Reseller breaches its obligation under this section, Reseller
shall be liable to TCG for any and all losses resulting from such breach,
including the indemnification of and/or reimbursement for losses arising
from claims by and from Reseller's customers.
E. In accordance with the requirements of TCG's agreements with any
governmental or quasi-governmental authority or PSAP with jurisdiction over
the matter, or as required by law, Reseller shall charge and collect from its
Customers any 911 surcharge or other similar fee required to be collected for
or in connection with the provision of 911/E911 service, and shall remit the
surcharge or other similar fee to TCG for payment to the governmental or
quasi-governmental authority or PSAP.
In accordance with the requirements of TCG's agreements with any
governmental or quasi-governmental authority or PSAP, Reseller may be
required to submit sworn affidavits certifying the number of active stations
served by Reseller on the first day of the month the fee was collected.
Reseller shall maintain records of the fees it remits to the PSAP for at
least two years after the date of remittance.
F. Reseller shall require and ensure that any resellers to whom services are
provided under the Residential Reseller Agreement shall be bound by the
terms and conditions of this 911 Obligations Agreement.
III. OBLIGATIONS OF TCG
A. TCG shall order from the LEC and supply to the TCG Switch the 911
Centralized Automatic Message Accounting (CAMA) trunks ordered from TCG by
Reseller so that Reseller can provide Enhanced 911 Emergency Service,
including Selective Routing Service, Automatic Number Identification (ANI),
Automatic Location Identification (ALI), to its Customers. It is understood
and agreed by TCG and Reseller that the CAMA trunks are supplied subject to
the provisions of the LEC's tariff as approved by the respective state
public utility/public service commission or its equivalent.
B. TCG shall provide Customer Name and Address (CNA) data to the RBOC or
LEC, as applicable, on behalf of Reseller for use in loading and updating
the E911 database management system.
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C. TCG shall coordinate the transmission of Reseller customer information to
the DMS for the initial loading and updating of Reseller's customer
information, as follows:
1. TCG shall provide format requirements for Reseller's provision of
Customer information including telephone numbers, addresses and other
information both for the initial load and updates;
2. TCG shall coordinate error resolution between Reseller and the
RBOC/LEC relating to load and update activities when such errors are
brought to TCG's attention;
3. Convey to Reseller a description of the geographic areas and PSAPs
served by the E911 Control Office(s), as provided to TCG by the RBOC.
4. Update the ALI/DMS database with information provided by Reseller
under section II above;
5. Coordinate with the applicable states and/or counties and the LEC in
the development of the Master Street Address Guide (MSAG).
E. E911 Service information consisting of the name, address, and telephone of
Reseller's customer base is confidential and proprietary. TCG agrees to use
such information only for the purposes of providing services hereunder.
IV. COMPENSATION
A. The payment terms contained in the Residential Reseller Agreement apply to
payment of the charges provided for hereunder, if any.
B. Each NXX will reside in a single Control Office. Reseller may, at its
option, designate that an NXX shall reside in more than one Control Office.
In that event, Reseller shall pay TCG a one-time charge per affected
Control Office to pay for the multiple Control Office software enhancement.
V. TERM
The term of this 911 Agreement shall be the same as that of the companion
Residential Reseller Agreement between the parties, unless terminated earlier
as herein provided.
VI. LIMITATION OF LIABILITY/INDEMNIFICATION
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A. To the extent not prohibited by law, each Party shall hold harmless,
indemnify and defend the other against any loss, cost, claim, injury or
liability arising out of negligence or willful misconduct of Reseller or
its agents or contractors in connection with its provision of information,
facilities and services or other performance under this Agreement.
B. Each party shall use reasonable efforts to perform its commitments under
this Agreement; however, neither party shall be liable to the other for
any loss, nor for defects or equipment failures, caused by conduct of the
other party, the other party's agents, servants, contractors or others
acting in aid or in concert with the other party.
C. In the case of any loss, cost, claim, injury or liability arising from the
negligence or willful misconduct of both parties, each party shall bear,
and its obligations under Article VI shall be limited to, that portion of
the resulting expense cause by its (including that of its agents,
servants, contractors or others acting in aid or concert with it)
negligence or misconduct. TCG's liability hereunder shall be limited to
the amount paid for the affected 911 service by Reseller.
D. Except for indemnity obligations which arise with respect to third party
claims, each party's liability to the other for any loss, cost, claim,
injury, liability or expense, including reasonable attorney's fees,
relating to or arising out of any negligent act or omission in its
performance of this Agreement (not involving willful or wanton
misconduct), whether in contract or in tort, shall be limited to a credit
for the actual cost of the services or functions not performed or
improperly performed.
E. Neither party shall have any liability whatsoever to or through the other
for any indirect, special, or consequential damages, including, but not
limited to loss of anticipated profits or revenue of other economic loss
in connection with or arising from anything said, omitted or done
hereunder, even if the other party has been advised of the possibility of
such damages.
F. A Party is not liable for the accuracy and content of CNA data that the
other Party delivers to it. Rather, the Party who delivers CNA data to the
other Party is responsible for the accuracy and content of such data and
the Party to whom the data is delivered is the custodian of such data and
is responsible for maintaining the accuracy and content of that data as
delivered.
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The provisions of this Section VI shall survive the termination of this
Agreement.
VII. INSURANCE
The parties each shall, at their sole expense, be insured at all time during
the term of this Agreement under a comprehensive liability insurance policy
against claims for bodily and personal injury, death, and property damage
caused by or occurring in conjunction with Parties' activities hereunder. Such
insurance coverage shall be maintained under one or more policies of insurance
issued by insurance companies qualified to do business in the states where
Parties perform their duties hereunder, and shall be in amounts not less than
One Million Dollars ($1,000,000) per occurrence for bodily and personal injury
and death, Five Hundred Thousand Dollars ($500,000) per occurrence for property
damage, and Five Hundred Thousand Dollars ($500,000) per occurrence for general
liability arising out of respective Parties' conduct hereunder. The Parties
shall also provide endorsements for contractual liability. Each Party shall
provide certificates of insurance to the other, evidencing the maintenance of
such insurance, and shall endorse the insurance to ensure that the insurance
carrier shall provide written notice to the other Party not less than thirty
(30) days prior to any modification, cancellation, or non-renewal thereof.
VIII. DEFAULT
A. CONDITIONS OF DEFAULT. Reseller and TCG understand and agree that the
establishment and maintenance of the DMS are of the essence of this
Agreement. The failure of Reseller to provide the necessary customer
information to establish and maintain the database according to the
requirements set forth within or by the, RBOC or PSAP, or the failure on
Reseller's part to cooperate with the development and maintenance of the
MSAG, or the non-payment of any charges due hereunder constitute a material
default under this agreement.
TCG's failure to perform its material obligations under this Agreement
shall also constitute an event of default.
B. NOTICE OF DEFAULT. Upon the determination by a party that a condition of
default exists, the affected party shall notify the other party of the type
and nature of the condition.
C. CURE. Except in the event of an emergency where public health or safety
are jeopardized, the defaulting party shall have ten (10) working days
from the receipt of the notice of default to notify the other party of its
exact plan to cure the default. The plan proposed must include the length
of time required for the cure. If the proposed cure is approved by the non-
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defaulting party, the defaulting party shall begin to implement the plan
immediately. If the proposed cure is not approved by the non-defaulting
party, the defaulting party shall have five (5) business days to modify
the plan according to the concerns specified by the non-defaulting party.
If the default is the failure to provide 911 service to a Customer, TCG
may withhold the provision of telecommunications service until 911
service is provided to the Customers.
D. REMEDIES. Should a party not act promptly to devise a plan acceptable to
the non-defaulting party to cure the default or be unable to cure the
default within the time specified in Section C above, the non-defaulting
party reserves the right to pursue all legal remedies, including but not
limited to the following:
1. Termination of this agreement, and the provision of service under
the Residential Reseller Agreement; and
2. Seeking a restraining order to enjoin the provision of service
under the Residential Reseller Agreement, with notice to the
Customer's potentially affected thereby; and
3. Entering into Service Agreements with the ______________ MDU owner
or manager, or other service providers in order to maintain the
provisioning of Universal Emergency Number Service. The defaulting
party agrees to assist the other by providing the non-defaulting
party with a complete list of its affected customer base and a
signed release form within ten (10) days from the end of the cure
period provided for in an approved cure plan as provided in
paragraph C above.
IX. NOTICES
Any notice required or permitted to be given by TCG to Reseller under this
agreement shall be mailed to Reseller certified or registered U.S. Mail,
postage prepaid, return receipt requested to the following address:
___________________________
___________________________
___________________________
Attn: ____________________
with a copy to: ___________________________
Any notice required or permitted to be given by Reseller to TCG under this
agreement shall be mailed to TCG certified or registered
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U.S. Mail, postage paid, return receipt requested to the following address:
TELEPORT COMMUNICATIONS GROUP
One Teleport Drive, Suite 300
Staten Island, New York 10311
Attn: General Counsel
with a copy to: Vice President/Public Markets
Any such notice delivered by United States Postal Service certified mail, or by
courier service, shall be conclusively deemed to have been served upon and
received on the date of delivery as shown on Return Receipt for Certified Mail
(PS Form 3811), or the courier service receipt.
X. SUCCESSORS AND ASSIGNS
TCG and Reseller bind themselves and their successors, executors,
administrators and assigns to the other party in respect to all covenants of
this Agreement. Neither TCG or Reseller shall assign or transfer its interest
in this Agreement without the prior written consent of the other except to a
parent, affiliate or in connection with the sale of all or substantially all of
their stock or assets. Neither Party shall assign this Agreement except in
connection with the assignment of the Residential Reseller Agreement and in
accordance therewith. Any appointment by either party of an agent to perform
any of the duties specified in this agreement must have prior written approval
from the other party.
XI. MODIFICATIONS
This instrument contains the entire agreement between the parties relating to
the rights herein granted and the obligations herein assumed. Any oral
representations or modifications concerning this instrument shall be of no
force or effect.
XII. APPLICABLE LAW
This Agreement shall be governed and construed according to the laws of the
state in which the services are performed. Venue for any action or claim arising
out of this agreement shall be in the County in which such services are
performed.
TCG Proprietary &
Confidential Information
02/05/98 10
<PAGE> 84
EXECUTED in quadruplicate this ___ day of __________, 1998
TCG ________ TVMAX TELECOMMUNICATIONS, INC.
By: By:
-------------------------- ------------------------------
Title: Title:
----------------------- -----------------------------
Date: Date:
----------------------- -----------------------------
TCG Proprietary &
Confidential Information
02/05/98
11
<PAGE> 85
Page 1 of 2
5/29/98
SCHEDULE "I"
OpTel PBX's - Where TCG agrees not to market directly to owner in the next
twelve months from today's date 5/29/98.
<TABLE>
<CAPTION>
Location Address City, ST ZIP
<S> <C> <C> <C>
Camelback Pointe 3630 Rialto Heights Colorado Springs, CO 80907
Grand Centennial 5225 Zachary Grove Colorado Springs, CO 80919
Jefferson at Greenwood Plaza 7610 E Caley Ave Englewood, CO 80111
Jefferson at Rock Creek 1880 Enterprise St Superior, CO 80027
Lincoln Park 1995 Yellowstone Dr Napierville, IL 60563
The Grove at Turtle Run 3615 Turtle Run Blvd Coral Springs, FL 30370
Village by the Bay 3245 NE 184th St N. Miami Beach, FL 33180
Lark Haven/Tanger Meadows 1432 Sandelwood Dr Colorado Springs, CO 80916
Dove Tree 255 Lionstone Dr Colorado Springs, CO 80916
Four Horizons 14304 E. Tennessee Ave Aurora, CO 80012
</TABLE>
SCHEDULE I
<PAGE> 86
PBXs from ICS Acquisition 5/29/98
SCHEDULE I page 2 of 2
<TABLE>
<CAPTION>
CONSENTS SC
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
Phone
PC Property St Market Address City Units
- ----------------------------------------------------------------------------------------------------------------
H5 LAPRIVADA AZ PHOENIX 10255 E. VIA LINDA SCOTTSDALE 350
- ----------------------------------------------------------------------------------------------------------------
A6 BAYWOOD CA LOS ANGELES 20900 ANZA AVE. TORRANCE 248
- ----------------------------------------------------------------------------------------------------------------
CO BISHOP COURT I CA SACRAMENTO 3300 CAPITOL CENTER DR. RANCHO CORDOVA 568
- ----------------------------------------------------------------------------------------------------------------
JZ BROADCAST CENTER CA LOS ANGELES 7660 BEVERLY BLVD. LOS ANGELES 279
- ----------------------------------------------------------------------------------------------------------------
KO CREEKSIDE/CA CA LOS ANGELES 1518 PATRICIA AVE. SIMI VALLEY 397
- ----------------------------------------------------------------------------------------------------------------
KC HILLCRESTE CA LOS ANGELES 1420 AMBASSADOR ST. LOS ANGELES 315
- ----------------------------------------------------------------------------------------------------------------
D2 LAKEVIEW CA SAN FRANCISCO 1271 LAKEVIEW CIRCLE PITTSBURGH 132
- ----------------------------------------------------------------------------------------------------------------
D4 LELAND TERRACE CA SAN FRANCISCO 110 DIAS CIRCLE PITTSBURGH 158
- ----------------------------------------------------------------------------------------------------------------
D5 LOVERIDGE TERRACE CA SAN FRANCISCO 500 LOVERIDGE CIRCLE PITTSBURGH 148
- ----------------------------------------------------------------------------------------------------------------
KH MALIBU CANYON CA LOS ANGELES 5750 LAS VIRGENES RD CALABASAS 698
- ----------------------------------------------------------------------------------------------------------------
E8 RIDGEVIEW VILLAGE CA LOS ANGELES 200 EAST AVENUE R PALMDALE 224
- ----------------------------------------------------------------------------------------------------------------
EZ SUNCREEK CA SACRAMENTO 7769 GREENBACK LANE CITRUS HTS. 268
- ----------------------------------------------------------------------------------------------------------------
F9 SUNSET COMMUNITIES CA LOS ANGELES 43255 NORTH 16th ST. WEST LANCASTER 800
- ----------------------------------------------------------------------------------------------------------------
G1 TERRACE ORANGE CA ORANGE 200 CITY BLVD. WEST ORANGE 441
- ----------------------------------------------------------------------------------------------------------------
JX VALLEY VILLAGE I/CA CA LOS ANGELES 8250 LANKERSHIM NORTH HOLLYWOOD 195
- ----------------------------------------------------------------------------------------------------------------
G9 WILLOW PASS CA SAN FRANCISCO 1058 WELDON LANE WEST PITTSBURGH 120
- ----------------------------------------------------------------------------------------------------------------
FK ZINFANDEL VILLAGE CA SACRAMENTO 3500 DATA DR. RANCHO CORDOVA 364
- ----------------------------------------------------------------------------------------------------------------
9E ISLAND LAKE FL ORLANDO 160 ISLANDER COURT LONGWOOD 289
- ----------------------------------------------------------------------------------------------------------------
I4 BERKLEY RUN GA ATLANTA 5470 GLENRIDGE DR. N.E. ATLANTA 194
- ----------------------------------------------------------------------------------------------------------------
HK LEGACY COMMONS GA ATLANTA 4887 ASHFORD DUNWOODY RD. ATLANTA 504
- ----------------------------------------------------------------------------------------------------------------
HL LEGACY OAKS GA ATLANTA 100 LEGACY OAKS CIR. ROSWELL 270
- ----------------------------------------------------------------------------------------------------------------
JP SUMMIT AT 1000 OAKS TX SAN ANTONIO 1550 THOUSAND OAKS BLVD. SAN ANTONIO 224
- ----------------------------------------------------------------------------------------------------------------
10,012
- ----------------------------------------------------------------------------------------------------------------
GJ CITYSCAPE AZ PHOENIX 4630 S. LAKESHORE DR. TEMPE 214
- ----------------------------------------------------------------------------------------------------------------
IJ SONTERRA AT PARADISE VALLEY AZ PHOENIX 17440 N. TATUM BLVD. PHOENIX 274
- ----------------------------------------------------------------------------------------------------------------
JI WILLOWICK AZ PHOENIX 5120 N. 16TH STREET PHOENIX 395
- ----------------------------------------------------------------------------------------------------------------
KZ DEER VALLEY CA SAN FRANCISCO 2500 DEER VALLEY RD. SAN RAFAEL 171
- ----------------------------------------------------------------------------------------------------------------
JC TIMBER CREEK CO DENVER 8899 EAST PRENTICE AVE. GREENWOOD VLG. 210
- ----------------------------------------------------------------------------------------------------------------
XS SUMMIT VILLAGE GA ATLANTA 2085 ROSWELL ROAD N.E. MARIETTA 323
- ----------------------------------------------------------------------------------------------------------------
IP SUMMIT RIVER CROSSING IN INDIANAPOLIS 8722 KNICKERBOCKER WAY INDIANAPOLIS 314
- ----------------------------------------------------------------------------------------------------------------
5,644
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 10.35
[OPTEL LOGO]
CONFIDENTIAL
March 10, 1998
Mr. Jim Price
President
I(3)S, Inc.
1530 Riverbend Street, Suite 600
Dallas, Texas 75247-4953
Re: Strategic Alliance for the Provision of High Speed Data Services
Dear Mr. Price:
TVMAX Telecommunications, Inc., d/b/a OpTel ("OpTel") and I(3)S, Inc.
("I(3)S") have been discussing a strategic alliance for the purpose of bringing
high speed data service, including without limitation Internet service, to,
among others, OpTel's residential customers. OpTel currently provides video and
telephony services to multiple dwelling units and their residents in a number of
markets across the United States. I(3)S provides system integration and network
services, including, without limitation, high speed cable data services and
Internet services, to multiple system franchise cable operators ("MSO") private
cable operators ("PCO"), and real estate investment trusts ("REIT") nationwide.
OpTel and I(3)S desire to provide high speed data services to MDUs, current and
future, served by OpTel, and neighboring businesses, in accordance with the
terms of this agreement.
The following sets forth the terms, conditions and agreements between
the parties regarding the strategic alliance for the provision of high speed
data services:
1. Purpose of Strategic Alliance.
OpTel and I(3)S hereby form an alliance for the purpose of providing
high-speed data services, which services shall include, without limitation,
Internet services ("HSDS"), to existing and future residential and commercial
customers of OpTel and to other persons to whom OpTel and I(3)S, through their
respective networks, determine to bring HSDS. It is envisioned that OpTel
which, itself and through affiliates, provides multi-channel video and
telecommunications services principally to residents of multiple dwelling units
("MDUs"), will endeavor to market and distribute HSDS provided by I(3)S in
selected MDUs from time to time being provided multi-channel video services.
Subject to the successful completion of field testing (see Paragraph 13.N
below), OpTel will initially offer the HSDS to the First of OpTel markets
commencing approximately thirty to ninety days after the parties' execution of
this agreement, Consistent with the terms set forth in this agreement, and, at
its discretion, OpTel will offer HSDS in its other markets acceptable to I(3)S
during the term of this agreement.
<PAGE> 2
I(3)S, Inc.
March 10, 1998
Page 2
2. Structure of Relationship.
The parties hereby enter into a strategic alliance for the purposes of
providing HSDS to MDUs and other customers served by OpTel under the terms of
this agreement. Each party will keep its own books and records and
maintain its own corporate existence. The parties will not be partners or joint
venturers.
3. Roles and Responsibilities of the Parties.
A. OpTel. As part of the agreements contemplated hereby,
OpTel shall:
(i) Determine, in its sole discretion, which geographic
markets (each a "Market") it wishes to offer HSDS
pursuant to these arrangements and the timing of
OpTel's offering in each market. The criteria for
determining the eligibility of a Market will be: (i)
whether the Market has available MDUs having fully
activated coaxial cable plant passings of not less
than 3,500 residential units, and (ii) whether the
Market contains a reasonably acceptable number of
higher quality MDU's, typically referred to as "Class
A" and "Class B" properties (collectively, the
"Market Criteria").I(3)S confirms the eligibility of
each of the markets identified on Schedule I attached
hereto (each an "Approved Market"). If OpTel wishes
to offer HSDS to any Market other than an Approved
Market, such Market must meet the Market Criteria and
be approved by I(3)S before I(3)S shall be obligated
to participate in the delivery of HSDS to that Market
as described herein.
(ii) Determine, at its sole discretion, which MDUs or
other customers within a Market to bring HSDS (each a
"Property Determination"). OpTel shall have the right
to discontinue HSDS to any MDU or other customer if:
(i) OpTel ceases providing its cable television
services to such MDU, (ii) OpTel determines that it
does not have the contractual or other legal right to
provide the HSDS to such MDU via its property cable
plant, or (iii) OpTel in good faith determines that
it should discontinue the HSDS to such MDU in
response to an MDU owner's request to do so or
otherwise as OpTel in good faith deems necessary for
the proper conduct of OpTel's business or to maintain
a proper relationship with the owner of an MDU. OpTel
agrees that clause (iii) of the preceding sentence
shall be applicable only with respect to
circumstances surrounding individual MDUs or MDUs
under common or affiliated ownership and shall not
give OpTel the right to terminate this agreement in
its entirety or with respect to any Market.
(iii) Prior to or upon making a Property Determination,
establish the property network in the manner and
having the physical characteristics set forth on
Schedule A (the "Property Network") and the required
local loop route also as described on Schedule A (the
"Local Route"
<PAGE> 3
I(3)S, Inc.
March 10, 1998
Page 3
(iv) Accept orders for HSDS and related services from
subscribers (each MDU resident or other customer that
subscribes to the HSDS is herein referred to as a
"Subscriber").
(v) Perform billing and collection functions related to
HSDS.
(vi) Provide marketing of the HSDS product, as determined
by OpTel, after consultation with I(3)S,
(vii) Maintain sole responsibility for all relations with
all OpTel customers and Subscribers, including
without limitation MDU residents, owners, ownership
associations and property management, except that
I(3)S will have contact with Subscribers and MDU
owners and property management as necessary for I(3)S
to perform its obligations described in subsections
3.B(ii) and (iii) below.
(viii) Maintain such permits, licenses, franchise rights and
intellectual property rights as may be required by
applicable law or as OpTel deems desirable in
connection with these matters and its business.
(ix) ***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED
WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIALITY)
The parties expressly acknowledge and agree that the provision of HSDS
at any MDU or other facility under the agreements contemplated hereby will be
entirely derivative and dependent upon OpTel's continued right to serve the
property and to maintain a video distribution plant thereon, and all
arrangements and agreements with Subscribers are dependent upon such continuing
rights. Maintenance of these rights to serve is entirely at OpTel's discretion,
and cannot be assured. Consequently, in no event shall OpTel be responsible to
I(3)S or any Subscriber in respect of the diminution in, or loss of, such video
distribution and related rights, or any other right of access, which OpTel
might endeavor to maintain. Moreover, it is expressly understood that the
substantial majority of OpTel customers for multi-channel video services are
renters or other transient occupants
<PAGE> 4
I(3)S, Inc.
March 10, 1998
Page 4
of MDUs and there can be no expected minimum customer life. However, if OpTel's
right to serve a property terminates, OpTel ceases providing its video services
to that property, and OpTel has no further rights, or interests in the video
distribution plant at that property, nothing contained in this agreement shall
prevent I(3)S from entering into a separate arrangement with the owner of that
properly for the delivery of high-speed data services. OpTel shall use
reasonable efforts to provide I(3)S with advance notice of the date of
termination or cessation of OpTel's video services at a property.
OpTel and I(3)S periodically shall establish the expected "look and
feel" of the "Opening Screen" and other customized electronic media, so that
I(3)S can perform its obligations, and shall update such information from
time-to-lime in accordance with Schedule B.
OpTel shall, at all times, maintain sole ownership of the names,
addresses and other account information of Subscribers and other OpTel
customers; provided, OpTel shall make such information available to I(3)S
solely for purpose of facilitating the performance of its obligations
hereunder. I(3)S shall not use such information for any other purpose or
disclose such information to third parties, unless and to the extent I(3)S is
required to do so by applicable law or pursuant to OpTel's prior written
consent.
OpTel shall have the right to offer complimentary HSDS to property
owners or ownership or management associations, etc., as reasonably necessary in
connection with the furtherance of this business. OpTel and I(3)S agree that
complimentary HSDS offerings shall be limited to free installation, free
Hardware and Software and free HSDS (collectively, "Complimentary Service") for
up to two (2) computers at an MDU property management or leasing office and
Complimentary Service for one computer each for up to two (2) MDU-resident
employees of management level.
B. I(3)S. As part of the agreements contemplated hereby, I(3)S
shall:
(i) Establish in each Approved Market and in each new
market designated by OpTel (provided any such new
market meets the Market Criteria and is approved by
I(3)S) the Internet point of presence ("POP") having
the features and within the time frame set forth on
Schedule C and provide the Internet service features
described on Schedule D (the "Service Features").
I(3)S shall establish the location of the
POP in each Market based on several factors,
including, without limitation, the co-location
facilities being offered by OpTel in each Market.
(ii) Provide or cause to be provided a 24-hour help desk
service line under an 800 or 888 toll free phone
material and technical support/customer help in
accordance with Schedule F (the "Customer Help
Features").
(iii) Provide in a timely manner to each Subscriber the
software described on Schedule F ("Software") and the
modern and other hardware described on such schedule
(the "Hardware"). I(3)S will make suitable
arrangements (the exact nature to be determined by
I(3)S) for the leasing or Financing of the Hardware in
order to make the Hardware available to Subscribers
at an acceptable and competitive cost, such cost
initially to be as set forth on Schedule H attached
hereto.
<PAGE> 5
I(3)S, Inc.
March 10, 1998
Page 5
(iv) Provide or cause to be provided local field service
personnel with respect to each Market to enable I(3)S
to provide the Software and Hardware to Subscribers
and provide customer-premises service of the Software
and Hardware
(v) Provide and update the customized OpTel Opening
Screen and other features in accordance with Schedule
B.
(vi) Market third-party advertising space on OpTel's
Opening Screen, such advertising to be subject to
OpTel's prior approval. Marketing design and
production costs shall be the responsibility of the
advertiser.
(vii) Provide all software and hardware and intellectual
property in connection with HSDS, all of which shall
be owned or lawfully licensed by I(3)S, and shall not
knowingly infringe upon the rights of any third party.
The HSDS proposed to be offered this letter shall be
in compliance with all required licenses. I(3)s shall
be solely responsible for compliance.
(viii) Monitor status of OpTel's Property Network and Local
Route and notify OpTel's Customer Service Department
of any Property Network or Local Route failures
detected by I(3)S in accordance with the procedures
described in Schedule G. I(3)S will not be able to
monitor the property headend and/or receiving
equipment (as distinguished from the property
distribution system) at any property where the
property receiving equipment is not being used to
deliver HSDS.
(ix) Procure and maintain in full force and effect all
required permits licenses, franchise rights,
trademarks, trademark rights, trade names, trade name
rights and copyrights which are required to conduct
the business of HSDS.
(x) ***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED
WITH THE COMMISSION PURSUANT TO AN APPLICATION FOR
CONFIDENTIALITY)
<PAGE> 6
I(3)S, Inc.
March 10, 1998
Page 6
***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY)
4. I(3)S Hardware and Software. I(3)S will enter into a separate
and specific agreement with each Subscriber concerning the use and purchase or
lease of the Hardware and Software. OpTel shall not be a party to any such
agreement. Except for OpTel's performance of the billing and collection
procedures set forth in Paragraph 5.B below, I(3)S agrees that OpTel shall
have no responsibility or liability for any claims arising out of the purchase
or lease of the Hardware or Software or the operation, repair or maintenance
thereof.
5. Subscriber Rates and Charges; Billing and Collection; Expenses
and Revenues.
A. Subscriber Rates and Charges and HSDS Features. OpTel and I(3)S
shall mutually establish the (i) HSDS features, (ii) HSDS Subscriber rates and
(iii) HSDS installation charges, service charges and rent or other charges
associated with a Subscriber's purchase or lease of the HSDS Hardware and
Software (the items referred to in clause (iii) being collectively referred to
as "Service and Equipment Charges"). OpTel and I(3)S intend to offer the latest
HSDS and Internet features and to set HSDS subscriber rates and Service and
Equipment Charges so as to maximize Subscriber revenues. OpTel and I(3)S agree
that the HSDS features, Subscriber rates and Service and Equipment Charges shall
always be competitive with those of other HSDS services being offered to
residents of other MDU's in the applicable Market. ***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIALITY)
B. Billing and Collection. OpTel shall perform all billing and
collection functions relating to amounts due from Subscribers for the HSDS and
Service and Equipment Charges (excluding charges for service/repair calls).
I(3)S shall perform all billing and collection functions relating to
service/repair calls. In no event shall OpTel have any liability or
responsibility for a Subscriber's failure to pay any Service and Equipment
Charges, nor shall the Alliance Revenues (defined below) be subject to any
deduction by reason of unpaid Service and Equipment Charges. All Service and
Equipment Charges received by OpTel shall be paid to I(3)S and shall not be
included in Alliance Revenues. OpTel shall provide I(3) with a monthly billing
and collections report and a report of delinquent Subscriber accounts. Unless
the parties agree otherwise, I(3)S shall terminate Internet service to any
Subscriber whose account is delinquent for greater than fifteen days or in the
event a Subscriber violates any other material term or condition of service and
fails to cure such violation within a reasonable period of time following
notice. I(3)S shall provide OpTel with written notice of each Subscriber whose
HSDS has been terminated within 24 hours following termination.
C. Expenses. Each party shall bear any and all operating and other
expenses associated with the services and equipment it is required to provide
or maintain as set forth in this agreement and each party shall maintain its
own network infrastructure which shall at all times remain the property of such
party.
<PAGE> 7
I(3)S, Inc.
March 10, 1998
Page 7
D. Allocation of Revenue. All OpTel-billed revenue received from
Subscribers, but excluding payments of Service and Equipment Charges will be
described revenues attributable to the alliance ("Alliance Revenues") and shall
be allocated and paid to OpTel or I(3)S, as the case may be, in accordance with
the sharing percentages set forth below. Each party receiving Alliance Revenues
which may be payable in whole or in part to the other party shall hold such
monies in a fiduciary capacity and trust for such party and promptly pay over
the same. By way of example only, monthly Subscriber revenues received by OpTel
shall be payable in part to I(3)S in accordance with the Sharing Percentages.
Each party shall pay the other party such other party's share (determined in
accordance with the Sharing Percentages) of all Alliance Revenues received
during a calendar month by no later than the 25th day of the following calendar
month, which payment shall be accompanied by an itemized statement of all
Alliance Revenues received by that party during the applicable calendar month
and that party's calculation of each party's share of such revenues. OpTel
shall use reasonable efforts to collect all HSDS service subscription fees from
Subscribers.
E. Place of Payment. Alliance Revenues payable to OpTel shall be
sent to TVMAX Telecommunications, Inc., 1111 W. Mockingbird Lane, 10th Floor,
Dallas, Texas 75247, Attention: Accounts Receivable, or to such other location
of which OpTel gives I(3)S written notice. Alliance Revenues payable to I(3)S
shall be sent to I(3)S, Inc., 1530 Riverbend Street, Suite 600, Dallas, Texas
75247-4953, Attention: Accounts Receivable, or to such other location of which
I(3)S gives OpTel written notice.
F. Accounting. Each party will account periodically to the other
and maintain access to books and records to afford the other party the right to
audit and confirm these matters.
G. ***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE COMMISSION PURSUANT
TO AN APPLICATION FOR CONFIDENTIALITY).
H. Audit Rights. Either party, upon providing the other with
fifteen days prior written notice of its desire to do so, at its expense, may
audit the records of the other relating to revenues generated from Subscribers,
Subscriber and third-party advertising revenues associated with the OpTel home
page/Opening Screen or otherwise relating to the provision of HSDS pursuant to
this agreement. Such audit shall be conducted during the other party's business
hours at its office in Dallas, Texas. If a party's audit discloses an
underpayment of that party's share of Alliance Revenue, the other party shall,
subject to its right to contest the audit, forward such underpayment to the
auditing party. If such underpayment exceeds five percent of the actual amount
of such party's share of Alliance Revenue for the last year, then, subject to
its right to contest the audit, the other party shall reimburse the auditing
party for all reasonable third-party costs of the audit. If the other party
elects to the audit, OpTel and I(3)S shall mutually agree on an independent
auditor to reaudit the Alliance Revenues for the applicable period. The
determination of such independent auditor shall be binding. If such independent
auditor determines that either party underpaid the other's share of Alliance
Revenue by more than five percent or the actual amount for the last year, then
such
<PAGE> 8
I(3)S, Inc.
March 10, 1998
Page 8
underpaying party also shall pay the cost of the second audit; otherwise, the
auditing party shall pay the cost of the second audit.
6. Term.
A. Term of Agreement. This agreement shall have an
initial term of five (5) years (the "Term") commencing on the date hereof.
Following the initial Term or any renewal Term, the Term shall automatically
renew for any additional one (1) year period. The Term and any renewal Term
shall be subject to earlier termination (a) in the event of a default or (b)
in the event that the HSDS arrangements are terminated with respect to all
Markets as described below prior to the end of the Term or any renewal Term.
All representations, warranties and indemnities of the parties shall survive
the expiration or earlier termination of the Term or any renewal thereof. Upon
termination or expiration of the Term, each party will continue to own the
equipment, hardware, software, etc. paid for, installed, owned and maintained
by that party during the Term.
B. Individual Market Terms. In any Market designated by OpTel
and in which I(3)S has established a POP in accordance with the agreements
contemplated herein, the parties agree that the service arrangements in that
Market will not be terminated (other than for default) for a period of five (5)
years from the date of activation of the first OpTel MDU in a Market (the
"Market Activation Date"). After such five (5) year period, the arrangements
with respect to such Market may only be terminated on six months' prior notice
(i.e., notice given on or after the date which is four years and six months
after the Market Activation Date). Notwithstanding the termination of the
arrangements in any Market, I(3)S shall maintain its facilities and continue to
provide the HSDS for a reasonable period of time (not to exceed six (6) months
from the date of termination) until OpTel has made arrangements with another
Internet service provider, and I(3)S shall cooperate with OpTel in an orderly
and efficient transition of the Subscribers to any other Internet service
provider designated by OpTel.
7. Nonexclusivity; Noncompetition and Most Favored Nation.
A. Nonexclusivity and Noncompetition. The agreements
contemplated hereby shall be non-exclusive as to each party. Neither party
shall be precluded from offering or providing a high-speed data service at
MDU's or other properties not being provided HSDS pursuant to this agreement;
provided, however, I(3)S will not during the Term, directly or indirectly,
market or sell HSDS in or to any MDU under contract for service with, or then
being served by, OpTel or any OpTel affiliate. During the Term, OpTel shall
not, directly or indirectly, offer or provide any high speed data service which
competes with the HSDS at any MDU or other customer location where the HSDS is
being provided pursuant to this agreement.
B. Most Favored Nation. I(3)S shall not offer HSDS to or
for the benefit of competitors of OpTel under terms which, in the aggregate,
are more favorable to such competitors than those provided to OpTel without
offering such more favorable terms to OpTel retroactive to the date first
offered to any such competitor.
8. Representations and Warranties.
OpTel and I(3)S each represents and warrants to the other that: (a) it
is now in a solvent condition and that no bankruptcy or insolvency proceedings
arc pending or contemplated by or against such party; (b) this agreement has
been duly authorized, executed and delivered by it and constitutes the legal,
valid and binding obligation of such party enforceable in accordance with its
terms; (c) no consent or approval
<PAGE> 9
I(3)S, Inc.
March 10, 1998
Page 9
of any other person or entity to the execution, delivery, performance or
enforceability of this agreement is required; (d) neither the execution of this
agreement nor the performance of the obligations contained herein by such party
will conflict with or result in a breach of the terms, conditions of provisions
of any agreement to which such party is a party or by which it is bound; and
(e) it has or will have good, valid, and indefeasible title to all equipment to
be provided by it pursuant to this agreement that pertains in any way to the
HSDS. Each person executing this agreement on behalf of a party hereto
represents and warrants that he or she is authorized to do so by all necessary
corporate, company or partnership action.
9. Insurance.
A. I(3)S' Insurance. I(3)S at its expense, shall procure and
maintain throughout the Term: (i) commercial general liability insurance on an
occurrence basis with limits of liability of not less than $5,000,000, insuring
against bodily injury, death or property damage occurring in any one accident;
(ii) standard fire and extended coverage casualty insurance covering the
Hardware, all equipment associated with each POP and all equipment for the
delivery of HSDS (excluding that to be provided by OpTel), in an amount not
less then replacement cost; and (iii) worker's compensation and employer's
liability insurance if and to the extent required by applicable law. I(3)S
shall cause OpTel to be named as an additional insured in the insurance
policies described in clauses (i) and (ii) above and shall provide OpTel with a
certificate evidencing that such insurance coverage is in full force and
effect. All insurance shall be issued by insurance companies having a rating of
A-VIII or better according to the current issue of Best's Insurance Reports.
B. OpTel's Insurance. OpTel, at its expense, shall
procure and maintain throughout the Term: (i) commercial general liability
insurance on an occurrence basis with limits of liability of not less than
$5,000,000, insuring against bodily injury, death or property damage occurring
in any one accident; (ii) standard fire and extended coverage casualty
insurance covering OpTel's cable system or major components thereof and those
items of equipment for the delivery of HSDS to be provided by OpTel; and (iii)
worker's compensation and employer's liability insurance if and to the extent
required by applicable law. OpTel shall cause I(3)S to be named as an
additional insured in the commercial general liability insurance policy and
shall provide I(3)S with a certificate evidencing that such insurance coverage
is in full force and effect. All insurance shall be issued by insurance
companies having a rating of A-VIII or better according to the current issue of
Best's Insurance Reports.
10. Indemnities.
A. General Indemnities. OpTel agrees to indemnify and
defend I(3)S against and hold I(3)S harmless from all fines, suits, claims,
demands, causes of actions, costs, damages and liability of every kind,
including but not limited to attorneys fees and expenses (collectively,
"Claims"), resulting from (i) any bodily injury, death and/or damage to
property that results from or is caused by the negligence or willful misconduct
of I(3)S or any of its employees, agents or contractors; and (ii) the breach
of any representation, covenant or warranty of OpTel contained in this
agreement. I(3)S agrees to indemnify and defend OpTel against and hold OpTel
harmless from all Claims resulting from (i) any bodily injury, death and/or
damage to property that results from or is caused by the negligence or willful
misconduct of I(3)S or any of its employees, agents or contractors, and (ii)
the breach of any representation, covenant or warranty of I(3)S contained in
this agreement.
B. I(3)S Defense and Indemnity-Obligations. I(3)S, at
its sole expense, shall defend OpTel and its affiliated entities, and their
respective directors, officers, employees and agents ("OpTel Affiliates"),
against any and all third-party Claims (including without limitation
third-party
<PAGE> 10
I(3)S, Inc.
March 10, 1998
Page 10
Claims to which any OpTel Affiliate becomes subrogated) arising out of or
relating to the provision of Internet services, including without limitation,
all Claims arising out of or relating to (i) publishing activities, including
without limitation, content, obscenity and indecency; (ii) hosting activities,
including without limitation, security, privacy, and compensation and taxes;
and (iii) the violation or infringement of any Intellectual Property Right (as
defined below) (collectively, "Internet Claims"); provided, however, the
foregoing shall not include any Internet Claims arising solely by reason of the
actions of any OpTel Affiliate. The defense of any Claim under the preceding
sentence shall be handled by legal counsel chosen by I(3)S and reasonably
acceptable to OpTel, I(3)S and its legal counsel shall consult with OpTel and
its legal counsel in the defense of any such Claim. OpTel shall have the right,
but not the obligation, to participate in the defense of any such Claim in with
its own counsel at its own expense. Without limiting any of the foregoing,
I(3)S shall defend, indemnify and hold harmless the OpTel Affiliates from and
against any and all third-party Internet Claims arising out of or relating to
any act or omission of f I(3)S or any of its employees, agents or contractors;
provided, however, the foregoing shall not include Internet Claims arising
solely out of the parties offering or provision of HSDS to MDUs as contemplated
by the terms of this agreement.
C. Intellectual Property Rights Indemnification. I(3)S
shall defend, indemnify and hold harmless OpTel from and against any and all
Claims arising out of or relating to any actual or alleged infringement of any
third party's trade secret, trademark, service mark, copyright, patent or other
intellectual property right (each an "Intellectual Property Right") in
connection with the use of any Intellectual Property Right by I(3)S or its
employees, agents or contractors, in connection with the performance of its
obligations under this agreement. In connection with I(3)S's obligations
pursuant to the immediately preceding sentence, OpTel shall (i) give I(3)S
prompt written notice of all actions, claims or threats against OpTel of
infringement or violation of Intellectual Property Rights; and (ii) cooperate
fully with I(3)S in defending against any Claims, including making known or
available to the I(3)S, upon reimbursement of all costs associated with
provision or reproduction of, all records and document pertaining to any
Claims; provided, however, OpTel's failure to do either of the foregoing shall
not in any way limit, reduce or diminish I(3)S' obligations under this
paragraph except to the extent, and only to the extent, that OpTel's failure
has an actual adverse effect on I(3)S' ability to defend against any of the
Claims.
11. Events of Default, Remedies and Dispute Resolution.
A. Events of Default; Remedies. The occurrence of any
one of the following events by a party shall be an event of default by such
party under this agreement:
(i) A party shall fail to pay when due any sum of
money required to be paid under this agreement to the other party, and such
failure continues for twenty days after the failing party receives written
notice thereof from the other party.
(ii) A party shall fail to perform or observe any
term, condition or agreement contained in this agreement (other than a failure
described in clause (a) above) and such failure is not cured within sixty days
after the failing party receives written notice thereof from the other party,
but if such failure is of a nature that it reasonably cannot be cured within
such sixty day period (but is susceptible of being cured), the failing party
shall not be in default if such party commences to cure such failure within
such sixty day period and thereafter diligently pursues the curing of same to
completion.
(iii) A representation or warranty of a party
contained herein shall be untrue or misleading in any material respect when
made.
<PAGE> 11
I(3)S, Inc.
March 10, 1998
Page 11
(iv) A party shall become insolvent, shall admit in
writing its inability to pay its debts when due, shall make a transfer in fraud
of its creditors, or all or substantially all of its assets or its interest in
this agreement are levied on by execution or other legal process.
(v) A party shall file a petition under any section
or chapter of the U.S. Bankruptcy Code, as amended, or under any similar
federal or state law or statute; or a party shall be adjudged bankrupt or
insolvent in proceedings filed against it; or a receiver or trustee shall be
appointed for all or substantially all of the assets or a party and such
receivership or bankruptcy shall not be dismissed within sixty days from the
appointment of the receiver or trustee.
Upon the occurrence of an event of default by a party, the non-defaulting party
may terminate this agreement by written notice to the defaulting party, bring
an action against the defaulting party for damages and/or otherwise seek any
remedy available at law or in equity (including specific performance and
injunctive relief). If for any reason this agreement or the arrangements in any
Market are terminated, I(3)S shall maintain its facilities and continue to
provide the HSDS for a reasonable period of time (not to exceed six (6) months
from the date of termination) until OpTel has made arrangements with another
Internet service provider, and I(3)S shall cooperate with OpTel in an orderly
and efficient transition of the Subscribers to any other Internet service
provider designated by OpTel.
B. Informal Dispute Resolution. In the event of any dispute or
controversy between the parties of any kind or nature, upon the written request
of either party, each of the parties will appoint a designated officer whose
task it will be to meet for the purpose of resolving such dispute or
controversy or to negotiate for an adjustment to any provision of this
agreement needed to resolve such dispute or controversy. Such officers will
meet at a mutually agreeable location within ten (10) business days of the date
of the notice requesting informal dispute resolution. Such officers will
discuss the dispute or controversy and negotiate in good faith in an effort to
resolve the dispute or controversy or renegotiate the applicable section or
provision of this agreement without the necessity of any formal proceeding
relating thereto; provided, neither party shall be obligated by this paragraph
to waive a default by the other party or otherwise compromise any right that it
may have. No formal proceedings for the judicial or arbitrational resolution of
such dispute or controversy may be commenced until either or both of the
designated officers conclude in good faith that an amicable resolution through
continued negotiation of the matter at issue is not likely to occur.
C. Arbitration. The parties agree that it is not in either
party's best interest to engage in expensive and protracted litigation to
resolve any dispute between the parties hereto. Accordingly, if any disputed
matter in any way arising out of or in connection with this agreement cannot be
resolved between the parties, then each party agrees exclusively to submit such
disputed matter to binding arbitration in Dallas County, Texas or such other
mutually acceptable location in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. THEREFORE, EACH OF THE PARTIES
HERETO EXPRESSLY WAIVES THE RIGHT TO A TRIAL BY JURY AND A TRIAL BY COURT IN
CONNECTION WITH ANY AND ALL DISPUTES ARISING IN ANY MANNER OUT OF THIS
AGREEMENT. The arbitration hearing shall take place within sixty (60) days
after written demand by either party or as soon thereafter as an arbitrator can
be appointed. The matter shall be submitted to a single arbitrator
knowledgeable of such rules and industry standards. The arbitrator will be
instructed to consider, in making any determination, the customary practices in
the industry to the extent such practices exist. The arbitrator shall be
instructed to award the prevailing party reasonable attorneys fees and costs.
Punitive damages shall not be recoverable in any arbitration initiated pursuant
to this agreement. A
<PAGE> 12
I(3)S, Inc.
March 10, 1998
Page 12
judgment on any award entered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, either party may
seek in a court of competent jurisdiction a provisional remedy, including but
not limited to, injunctive relief, attachment, or claim and delivery, without
waiving the right to arbitration.
12. Notices. Any notice or other communication allowed or
permitted to be given under this agreement by one party to the other shall be
in writing and sent via U.S. Mail, hand delivery or overnight express delivery.
Any notice shall be deemed to have been given when deposited with the U.S.
Postal Service if sent by U.S. Mail. Notices and other communications given by
other means shall be deemed given when received at the place for the giving of
notice. For the purposes of giving notices hereunder, the following addresses
shall be applicable until changed by giving the other party notice of the
change:
<TABLE>
<S> <C>
TVMAX Telecommunications, Inc. I(3)S, Inc.
1111 W. Mockingbird, 10th Floor 1530 Riverbend Street, Suite 600
Dallas, Texas 75247 Dallas, Texas 75247-4953
Attn: Legal Department Attn: Jim Price
</TABLE>
13. Other and Miscellaneous.
A. Ownership of Intellectual Property Rights. Each party
shall maintain ownership of its own brands, trademarks, etc. and nothing in the
agreement shall give either party a right in intellectual property owned by the
other.
B. Taxes. Each party shall be responsible for its own
taxes.
C. Force Majeure. Whenever a period of time is
prescribed in this agreement for action to be taken by either party, such party
will not be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to strikes, riots, work
stoppages, shortages of labor or materials, war, governmental delays,
governmental preemption or priorities or other controls in connection with a
national or other public emergency, acts of God, casualties, utility outages,
Applicable Laws, or any other causes beyond the reasonable control of such
party; provided this subsection shall not apply to an obligation by either
party for the payment of money.
D. Mechanic's Liens. I(3)S shall not grant, create or
allow to exist by reason of any act of I(3)S or its employees, agents or
contractors any mechanics or materialman's lien or similar encumbrance on any
multifamily property being served by OpTel or on OpTel's cable television
system at such property.
E. Confidentiality. Unless otherwise agreed to in
writing, each party agrees (a) except as required by law, to keep confidential
all of the financial or service terms of this agreement and all Proprietary
Information (defined below) of the other party and not to disclose or reveal any
such Proprietary Information to any person other than those employed by the
receiving part or acting on its behalf who need to know the Proprietary
Information to carry out that party's obligations under this agreement, provided
that any such person acting on the receiving party's behalf is bound by the
terms of this paragraph, and (b) not to use Proprietary Information received
from the other party for its own benefit or any other purpose other than in
connection with the performance of that party's obligations under this
agreement. Each party acknowledges that it is responsible for any breach of the
terms hereof by it or its representatives involving unauthorized disclosure or
use of Proprietary Information. In the event that pursuant to applicable law or
regulation or legal process, either party is requested to disclose any
<PAGE> 13
I(3)S, Inc.
March 10, 1998
Page 13
Proprietary Information of the other party, the receiving party will provide
the disclosing party with prompt notice of such request(s) to enable the
disclosing party to seek an appropriate protective order or other appropriate
remedy and/or waive compliance with the provisions of this agreement. In the
event that such protective order or other remedy is not obtained or the
disclosing party waives compliance with the provisions of this agreement, the
receiving party shall furnish only that portion of the Proprietary Information
that it is advised by written opinion of counsel is legally required to be
furnished and shall exercise reasonable commercial efforts to obtain a
protective order or other reliable assurance that confidential treatment will
be accorded the Proprietary Information. "Proprietary Information" means all
information about a party furnished by it or its representatives to the other
party on or after the date hereof, and regardless of the manner in which it is
furnished together with all analyses, compilations, studies, summaries,
extracts or other documents, whether prepared by the disclosing party or
others, which contain or otherwise reflect such information, including, without
limitation, financial status, customer lists, marketing strategy, business
plans and organizational structure. Proprietary Information shall not include,
however, information which (a) is or becomes generally available to the public
other than as a result of a disclosure by the receiving party or by any of the
receiving party's representatives, (b) becomes available to the receiving party
on a non-confidential basis from a person other than the disclosing party or
its representatives who is not otherwise bound by a confidentiality agreement
with the disclosing party or the disclosing party's representatives, or is not
otherwise prohibited from transmitting the information to the receiving party,
or (c) is independently developed by the receiving party prior to disclosure to
it by the disclosing party or its representatives. In the event that the
disclosing party at any time so requests, the receiving party will promptly
deliver to the disclosing party or destroy all of the Proprietary Information
of the disclosing party, including all copies thereof, in the receiving party's
possession or in the possession of any of the receiving party's
representatives, and will promptly confirm such destruction in writing. Without
prejudice to the rights and remedies otherwise available to either party, a
disclosing party shall be entitled to equitable relief by way of injunction if
the receiving party or any of the receiving party's representatives breaches or
threaten to breach any of the provisions of this paragraph, without the
necessity of proving irreparable harm or posting bond or other security. The
obligations of the parties under this paragraph shall terminate five (5) years
after the termination of this agreement.
F. Press Releases and Other Disclosures. All public
communications with respect to the matters set forth in this agreement must be
approved by both parties, subject to any required reporting or disclosure under
state or federal securities laws or in accordance with agreements between a
party and its investors.
G. Assignment. I(3)S shall have the right to assign
this agreement to any person; provided, however, I(3)S shall not have the right
to assign this agreement if (i) the financial strength of the assignee is less
than (I(3)S' financial strength measured as of the date of this agreement, (ii)
the assignee is not reasonably capable of performing all of the obligations of
I(3)S under this agreement, or (iii) the assignee is a PCO, MSO or other
provider of cable television services, or a Regional Bell Operating Company or
other incumbent local exchange telephone company. A change in control of I(3)S
shall be considered an assignment. OpTel shall have the right to assign this
agreement to any person; provided, however, OpTel shall not have the right to
assign this agreement to any non-affiliated entity if the financial strength of
such entity is less than OpTel's financial strength measured as of the date of
this agreement. As a condition to the assignment of this agreement by either
party, the assignee of such party must, in writing, agree to assume and perform
the obligations of the assigning party from and after the date of such
assignment.
<PAGE> 14
I(3)S, Inc.
March 10, 1998
Page 14
H. Attorneys' Fees. In the event of any dispute,
arbitration or litigation between the parties concerning this agreement, the
prevailing party shall be entitled to recover from the other reasonable
attorneys fees and costs.
I. Binding Agreement. This agreement is binding on and
enforceable against the parties and their respective legal representatives,
successors and assigns.
J. Choice of Law; Venue. This agreement has been made
and entered into in the State of Texas, and shall be governed by and construed
in accordance with the law of the State of Texas. OpTel and I(3)S agree that
venue of any action or proceeding under or with reference to this agreement
shall lie solely in Dallas County, Texas.
K. Severability; No Partnership. If any provision of this
agreement should be held to be invalid or unenforceable, the validity and
enforceability of the remaining provisions of this agreement shall not be
affected thereby. Nothing herein contained shall be construed to create any
partnership or joint venture between the parties.
L. Entire Agreement; Amendments. This agreement
supersedes any prior agreements between the parties concerning the Property and
the subject matter hereof, and no statements, representations or agreements,
oral or written, not contained in this agreement shall have any force or
effect. This agreement may not be amended or added to in any way except by
written instruments executed by both parties or their respective successors in
interest.
M. Counterparts. This agreement may be executed in any
number of counterparts with the same effect as if all parties hereto had signed
the same document. All such counterparts shall be construed together and shall
constitute one instrument, but in making proof hereof it shall only be
necessary to produce one such counterpart.
N. Field Testing. As soon as reasonably possible after
the complete execution of this agreement, OpTel and I(3)S shall commence to
field test (the "Field Test") the HSDS product at up to three (3) MDU's to be
selected by OpTel (each a "Test MDU"). The Field Test at any Test MDU shall
continue for up to ninety days from service activation, but may be terminated
earlier by the agreement of the parties. Except as provided in this subparagraph
below, all of the terms of this agreement, including without limitation all of
the terms concerning each party's obligations and each party's responsibilities
for costs, shall be applicable to the Field Test. OpTel and 1(3)S agree that at
one Test MDU Subscribers at the Test MDU will not be charged for the HSDS and
will not be charged any Service and Equipment Charges during the Field Test. At
the other Test MDU's, OpTel and I(3)S shall charge residents HSDS subscription
rates and Service and Equipment Charges in order to perform a "marketing" test
of the HSDS product. By no later than twenty days following the completion of
the Field Testing, OpTel shall notify I(3)S whether OpTel believes the Field
Testing was successful. If OpTel determines that the Field Test was successful,
then this agreement shall continue in full force and effect. In which case,
provided OpTel can make appropriate arrangements with the owner of the Test MDU,
the HSDS will be continued at the Test MDU on a retail basis and residents that
wish to subscribe to the HSDS will be obligated to commence paying the monthly
subscription rate and make appropriate arrangements to purchase and/or lease the
Hardware and Software. If OpTel determines that the Field Test was not
Successful, then OpTel shall be entitled to terminate this agreement and neither
party shall have any liabilities or obligations to the other; except that, if
either (i) OpTel terminates this agreement or (ii) appropriate arrangements
cannot be made with the owner of the Test MDU and OpTel decides not to continue
the HSDS at the Test MDU on a retail basis, then OpTel shall reimburse I(3)S in
an amount equal to the out-of-pocket costs incurred by I(3)S in connection with
providing the HSDS to the Test MDU
<PAGE> 15
I(3)S, Inc.
March 10, 1998
Page 15
during the Field Test (such amount not to exceed $7,500). The parties intend
that if the Field Test(s) are considered to have been successful, as described
above, the parties shall proceed immediately to implement this agreement in
accordance with the terms hereof.
TVMAX Telecommunications, Inc.,
a Delaware corporation
By: /s/ LOUIS BRUNEL
-------------------------------
Name: Louis Brunel
Title: President & CEO
I(3)S, INC., a Texas corporation
By: /s/ J. R. PRICE
-------------------------------
Name: J. R. Price
Title: CEO
<PAGE> 16
SCHEDULE A
PROPERTY NETWORK AND
LOCAL LOOP CHARACTERISTICS
OPTEL'S RESPONSIBILITIES:
1. Cause CATV infrastructure to comply with the FCC technical requirements
set forth in 47 C.F.R. Section 76.605.
2. Upgrade property CATV infrastructure to provide bi-directional cable
delivery to all Subscribers.
3. Cause the upgraded bi-directional CATV infrastructure to meet or exceed
the following minimal operational requirements of the I(3)S cable modem
system:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
Minimum Cable Television Network Value
Requirements for i3s.net HSDS
- ---------------------------------------------------------------------------------------
<S> <C>
Amplitude variations inband
Forward channel 5 dB total
Return channel 5 dB total
- ---------------------------------------------------------------------------------------
Group delay variation inband
Forward channel 60 nsec/MHz, 240 nsec total
Return channel 200 nsec/MHz, 800 nsec total
- ---------------------------------------------------------------------------------------
Maximum tap to tap variation 27 dB
- ---------------------------------------------------------------------------------------
Dynamic range on receiver -15 dBmV to +15 dBmV
- ---------------------------------------------------------------------------------------
Maximum return/upstream loss @ 40 MHz 49 dB
- ---------------------------------------------------------------------------------------
Minimum carrier to noise 22 dB
Referenced to Analog Carrier 37 dBC
- ---------------------------------------------------------------------------------------
Minimum carrier to interference 25 dB
Referenced to Analog Carrier 40 dBC
- ---------------------------------------------------------------------------------------
</TABLE>
4. Provide two (2) six MHz video channels within the CATV infrastructure
bandwidth on Internet served properties; one (1) in the spectrum from
54 MHz to 750 MHz and one (1) in the 5 MHz to 50 MHz spectrum; and,
where available, reserve another two (2) additional video channels, in
the same spectrums for future expansion as Subscriber penetration on the
property increases.
5. Provide space, reasonable security and power for data communication
equipment necessary to provide Internet delivery and other data
services on the property.
6. Reimburse I(3)S for I(3)S' cost to acquire the I(3)S-specified data
communication equipment conforming to the I(3)S design for HSDS and
necessary to provide termination and delivery of HSDS between the
Subscriber and the I(3)S POP in each Market, which equipment will be
installed on each property jointly by I(3)S and OpTel technicians.
7. Order, provision, install and maintain local loop pathways between each
property and I(3)S POP in each Market with a bandwidth of not less than
1.544 mb/s (T1). In addition, as the number of Subscribers on each
property increases, scale the local loop bandwidth so that each
<PAGE> 17
simultaneously active user averages approximately 1 mb/s ninety eight
percent (98%) of the time provided OpTel determines that it is
economically feasible and necessary for the provision of HSDS. Both
parties acknowledge that the end-to-end performance of HSDS is
probabilistic and subject to anomalous short-lived usage patterns by
Subscribers which will affect both the utilization of the local-loop
circuits and the i3s.net national backbone from time to time. In the
event OpTel determines in its sole discretion that provisioning
additional local loop or other bandwith is not economically feasible,
then, with respect to the affected property, I(3)S will be relieved of
any obligations contained in this agreement to remain competitive in
terms of HSDS speed.
8. Provide coaxial connection (coax drop) to each Subscriber's unit
consistent with location of Subscriber's CPU and/or requested location.
I(3)S RESPONSIBILITIES:
1. Install, maintain and operate data delivery equipment for each property
offering HSDS. Installation and maintenance will meet or exceed
manufacturer's specifications. OpTel, through its local Market support
team, will assist I(3)S with pre-installation engineering planning and
site survey questionnaires, installation, testing and preparation of
maintenance schedules.
2. Integrate all data delivery equipment for each property into the I(3)S
Element Management System portion of its Network Management Platform
using SNMP and RMON.I(3)S will monitor all data delivery equipment
twenty-four hours per day, seven day per week (24x7).
3. Configure and operate all data delivery equipment to efficiently
integrate with the rest of the i3s.net network.
<PAGE> 18
SCHEDULE B
I3S INFORMATION OPERATIONS - CONTENT PRODUCTION;
OPTEL START PAGE - PRODUCTION AND UPDATING
1. I(3)S operates an information content operation for creating original
content or aggregating content created by others and licensed to I(3)S
for inclusion in the I(3)S body of content. This material will consist
of informational, educational, recreational, entertainment and business
content. This body of content will be offered to Subscribers of the HSDS
product.
2. I(3)S creates content as creative and/or business opportunities present
themselves. The I(3)S content will be updated as I(3)S, using its
editorial judgment, sees fit.
3. Certain portions of this content will be offered to all HSDS
Subscribers free of charge (Basic Content). Other portions of the
content will be offered to HSDS Subscribers on an optional fee basis
for unlimited access to a fixed package of content (Premium Content).
Another certain portion of the content will be offered to HSDS
Subscribers on an optional fee basis for access to a specific
time-limited event (Pay-Per-View Content). In addition to the fees
charged to customers for content, I(3)S will solicit and sell
advertising that will appear on certain portions of the content.
4. I(3)S may elect to bill Subscribers directly or request that OpTel bill
Subscribers as part of their regular monthly billing for service as part
of a HSDS/content bundle. All OpTel-billed revenues relating to I(3)S
content offering will be included in Alliance Revenues and subject to
the Sharing Percentages.
5. I(3)S or its content partners will design, produce and update, as
necessary, all content and be responsible for all such costs.
6. I(3)S shall design, produce and update, as necessary, a customized start
page (the "Start Page") for HSDS Subscribers, which shall be used
primarily to market and promote the HSDS and OpTel's current and future
video, telecommunications and other services. In addition, the Start
Page will include hyperlinks to OpTel corporate Web sites as directed by
OpTel. The Start Page shall meet the technical, functional and
appearance requirements reasonably specified by OpTel, subject to
reasonable approval by I(3)S. I(3)S shall update and maintain the Start
Page throughout the Term in accordance with directions from OpTel and
the terms of this agreement. I(3)S may offer HSDS Subscribers Start
Pages that are personalized (by property) and that, in addition to the
features described above, may promote the I(3)S content offerings and
provide direct hyperlinks to the I(3)S content.
<PAGE> 19
SCHEDULE C
POINT OF PRESENCE
FEATURES AND ESTABLISHMENT REQUIREMENTS
I(3)S RESPONSIBILITIES:
1. Acquire, install and maintain data communication equipment at each POP
for the termination and transmission of HSDS from properties to the
i3s.net national network backbone.
2. Determine the location of its main presence in each Market to be
consistent with its own operational practices (which currently include
co-locating within its carrier's central offices in each Market).
However, I(3)S will establish multiple POPs in each market sufficient
to minimize local loop transport from properties. Moreover, where
desired by OpTel, I(3)S will co-locate certain data communication
equipment within OpTel facilities in order to concentrate
OpTel-provided local loops terminating in OpTel facilities for
transport to the I(3)S regional POP. In those markets where I(3)S will
co-locate equipment within OpTel facilities, OpTel will provide,
without charge, suitable space, reasonable security and power for the
I(3)S equipment consistent with I(3)S operational practices and provide
reasonable monitored access for I(3)S support staff in order that the
equipment can be maintained or serviced in the case of failure.
3. Acquire, install, maintain and operate Internet peering relationships
at public and private Internet Exchange Points (EP) with other Tier 1
Internet backbone networks throughout the United States.
4. Acquire, install, maintain and operate computers and software to
provide Network Management and provide Internet services for
Subscribers. To provide these functions, I(3)S will employ a
combination of locally-distributed-to-the-POP servers as well as
globally centralized servers consistent with its overall network design
and operational practices.
5. Order, provision, install, maintain and operate data transport/carriage
pathways from each POP, EP and/or NOC with a bandwidth not less than 45
mb/s (DS-3) interconnection. In addition, as the number of Subscribers
on Market increases, scale the bandwidth so that each simultaneously
active user averages approximately 1 mb/s ninety eight percent (98%) of
the time. Both parties acknowledge that the end-to-end performance of
HSDS is probabilistic and subject to anomalous short-lived usage
patterns by Subscribers which will affect both the utilization of the
local-loop circuits and the i3s.net national backbone from time to
time.
6. Establish a POP as described above in each Approved Market within
ninety (90) days after its receipt of written notice from OpTel
requesting same. If OpTel desires to provide HSDS to a Market that is
not an Approved Market, then, I(3)S shall use reasonable efforts to
establish a POP in that Market. Within twenty (20) days after OpTel's
written notice to I(3)S that OpTel desires to provide HSDS to a Market
that is not an Approved Market, I(3)S shall notify OpTel whether it
will establish a POP in that Market and the date by which it will
establish such POP. In order to coordinate the delivery of HSDS in any
such Market, I(3)S will use reasonable efforts to provide OpTel with
thirty (30) days prior notice of the date upon which the POP will be
ready for service.
<PAGE> 20
SCHEDULE D
DEFINITION OF HIGH-SPEED DATA SERVICES (HSDS)
FEATURES AND REQUIREMENTS
The I(3)S HSDS includes, but is not limited to:
1. Data Network services that provide transport and peering functions to
the global Internet, including, without limitation:
a. A broadband access network on MDU properties composed of one
or more headend reference nodes, a coaxial or hybrid fiber
coaxial (HFC) cable television distribution system and one or
more cable data modems (CDM);
b. A local loop network that connects the headend reference node
on each MDU property to the I(3)S regional point-of-presence
(POP) in each metropolitan area served by I(3)S;
c. A regional point-of-presence network that connects the POP to
the i3s.net national Internet backbone;
d. A national Internet backbone consisting of broadband
communication facilities for the transport of data among I(3)S
POPs and public and private Exchange Points where data and
Internet routing information will be exchanged with other
networks peered with i3s.net;
e. A National Operations Center (NOC).
2. Certain computer services that include, but not limited to:
a. Membership system for user authentication and authorities;
b. Personalization services for customizing content to user
preferences;
c. Internet mail (SMTP and POP3);
d. Internet newsgroups (NNTP) composed of approximately 25,000
newsgroups;
e. Internet World Wide Web (HTTP) services;
f. Internet chat (IRC and MIRC);
g. White-pages-style directory services;
h. Internet locator services;
i. Conferencing and collaboration bridges;
j. Streaming multimedia services such as Microsofts NetShow and
Progressive Network's RealMedia;
k. Electronic commerce services.
3. A branded suite of client software that includes, but not limited to:
a. Web browser;
b. Mail reader;
c. News reader;
d. Chat client;
e. Conferencing and collaboration client;
f. Appropriate plug-ins and ActiveX controls.
4. Certain customer service functions that include, but not limited to:
a. A National Customer Care Center;
b. A telephone and network-based customer help desk;
c. A Trouble Reporting facility;
d. A customer billing system.
<PAGE> 21
5. Certain multimedia-rich content that showcases the capabilities of HSDS
that includes, but not limited to:
a. Original content created by I(3)S;
b. Aggregated content created by others but licensed by I(3)S and
improved for uses in a HSDS system;
c. Aggregated content created by others but licensed by I(3)S and
used unimproved.
<PAGE> 22
SCHEDULE E
CUSTOMER HELP LINE
SERVICE AND REQUIRED FEATURES
OPTEL RESPONSIBILITIES:
1. Provide toll free numbers for:
a. Inquiries about the HSDS product
b. Ordering and scheduling installation of HSDS products
c. Billing inquiries
d. Tier 1 technical support inquires
2. Operate 24x7 customer service call center operation.
3. Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 5 minutes of call entering processing
operation.
4. Resolve billing issues within 24 hours 95% of time.
5. Resolve property network issues within 24 hours 95% of time.
6. Develop and publish escalation procedure for Help Desk and attendants
related to network issues.
I(3)S RESPONSIBILITIES
1. Provide toll free number for:
a. Technical support for all HSDS issues
b. Technical support for Subscriber CPU hardware and software issues
related to HSDS
c. Technical support for cable modem issues
2. Answer toll free line consistent with the OpTel/I(3)S service co-brand
3. Operate 24x7 customer service call center operation.
4. Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 5 minutes of call entering processing
operation.
5. Resolve technical issues within 24 hours 95% of time.
6. Develop and publish escalation procedure for Help Desk and attendants
related to network issues.
7. Develop and publish escalation procedures for OpTel to contact
regarding technical issues related to the network.
8. Provide training support for OpTel's customer service representatives
(train-the-trainer support).
<PAGE> 23
SCHEDULE F
SUBSCRIBERS' HARDWARE AND SOFTWARE INSTALLATION
SPECIFICATIONS AND INSTALLATION REQUIREMENTS
OPTEL SHALL:
1. Develop a standard ISP contract for Subscribers with terms and
conditions reasonably acceptable to I(3)S.
2. Train its customer service representatives to follow I(3)S-provided
procedures to try to verify that potential Subscribers' personal
computers meet the I(3)S established minimum requirements for the
supplied software and the HSDS service.
3. Schedule an appointment with each new Subscriber to meet the I(3)S
installation personnel for the installation of the HSDS in the
Subscriber's unit.
4. Supply I(3)S with Subscribers' information required to install,
provision and complete the set up of Subscribers' HSDS service (the
nature of which to be provided by I(3)S). OpTel and I(3)S will jointly
develop an appropriate paper-form-based system or automated system to
facilitate this process.
5. Provide coaxial connection to the Subscriber's specified location.
6. Verify that the coaxial connection completed to the Subscriber's
specified location meets or exceeds the minimum operational
requirements for the I(3)S supplied cable modem and the I(3)S HSDS
service described in Schedule A.
7. Verify that all CATV services function properly after I(3)S completes
installation.
I(3)S SHALL:
1. Maintain a sufficient inventory of cable modems in each Market and
develop procedures to restock Markets with cable modems as used in
Subscriber installations.
2. Issue and install the required number of cable modems for the service
requested by the Subscriber. Develop contract for subscribers for cable
modem lease with terms and conditions reasonably acceptable to OpTel.
3. Meet the Subscriber at the Subscriber's residence at the scheduled time
at least 95% of time.
4. Install the required cable modem(s) in the Subscriber's unit.
5. Install any required network interface cards (NICs), TCP/IP protocols
and Internet software suite in the Subscriber's personal computer.
6. Offer the Subscriber a brief introduction to the HSDS to be performed
at the time of installation. This introduction will include how to
launch the service, how to find the training material on the i3s.net
Web site, how to find the Subscriber Support Section on the i3s.net Web
site and how to call for technical assistance or support.
7. Obtain signatures required to verify that installation was executed
properly and to the satisfaction of the Subscriber.
<PAGE> 24
8. Provide OpTel with a copy of the installation transaction documentation
verifying that the completed installation is ready for billing. This
documentation will include the cable modem delivery receipt, the ISP
contract, the completed work order and Subscriber's signature verifying
that the installation was executed properly.
9. I(3)S installation technicians shall present a neat, well-groomed and
professional appearance and shall efficiently perform the procedures
described above in a professional and courteous fashion.
<PAGE> 25
SCHEDULE G
PROCEDURES FOR DETECTION AND NOTICE
OF OPTEL PROPERTY NETWORK AND LOCAL LOOP FAILURES
OPTEL SHALL:
1. Designate an engineering point of contact for I(3)S Network Operations
Center (NOC) to report problems or failures twenty-four hours per day,
seven days per week (24x7).
I(3)S SHALL:
1. Use the cable modem system and certain network management features that
it provides to monitor the availability and quality of OpTel's property
network (its CATV plant).
2. Report to OpTel's designated engineering point of contact any problems
observed by the I(3)S NOC in the course of operating the cable modem
system network management features.
3. Report to OpTel's designated engineering point of contact any problems
determined by Subscriber contact in the course of operating the
Subscriber Help Desk.
4. Offer to OpTel a read-only direct computer interface into the I(3)S
cable modem system's network management platform for the purposes of
direct observation of the information produced by the management
platform and possible enhancement of OpTel's property network
operations. If OpTel elects to implement a read-only direct-computer
interface, OpTel will be responsible for all of the costs associated
with such an interface.
<PAGE> 26
SCHEDULE H
***
(MATERIAL DENOTED BY *** HAS BEEN SEPARATELY FILED WITH THE
COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIALITY).
<PAGE> 27
SCHEDULE I
APPROVED MARKETS
I(3)S agrees that the following OpTel Markets, with 3,500+ units, meet the
Market Criteria and are eligible for the delivery of HSDS:
San Francisco, CA
San Diego, CA
Los Angeles, CA
Phoenix, AZ
Denver, CO
Colorado Springs, CO
Dallas-Fort Worth, TX
Houston, TX
Chicago, IL
Miami-Fort Lauderdale, FL
I(3)S currently has plans to open regional POPs in the following Markets in
calendar year 1998. If OpTel has 3500 or more units in any of the following
Markets, then such Markets will meet the Market Criteria and be eligible for
the delivery of HSDS.
<TABLE>
<S> <C>
San Jose, CA Pennsauken, NJ
Washington DC Las Vegas, NV
Tampa, FL New York, NY
Atlanta, GA Portland, OR
Detroit, MI Seattle, WA
St. Louis, MO Milwaukee, WI
Charlotte, NC
</TABLE>
I(3)S also currently plans to open local concentrator locations (access nodes
on the i3s.net network without the full capabilities of a regional POP, but
connected directly to one or more regional POPs) in the following cities:
<TABLE>
<S> <C> <C>
Birmingham, AL Kansas City, KS/MO Akron, OH
Huntsville, AL Wichita, KS Cincinnati, OH
Scottsdale, AZ Louisville, KY Cleveland, OH
Tucson, AZ Boston, MA Columbus, OH
Bakersfield, CA Marlborough, MA Oklahoma City, OK
Sacramento, CA Westborough, MA Philadelphia, PA
Orlando, FL Baltimore, MD Providence, RI
Jacksonville, FL Mt. Pleasant, MI Memphis, TN
Macon, GA Raleigh/Durham, NC Nashville, TN
Savannah, GA Greensboro, NC Austin, TX
Bettendorf, IA Omaha, NB Corpus Christi, TX
Des Moines, IA Edison, NJ El Paso, TX
Peoria, IL Jersey City, NJ San Antonio, TX
Rantoul, IL Plainsboro, NJ Norfolk, VA
Indianapolis, IN Rochester, NY Richmond, VA
</TABLE>
